SBM Site Services, LLC

National Labor Relations Board - Administrative Judge Opinions

Oct 5, 2017

20-CA-157693 (N.L.R.B. Oct. 5, 2017)

JD(SF)–41–17
San Francisco, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SBM SITE SERVICES, LLC
and
JOSE LA SERNA, an Individual
and
ESTHER QUINTANILLA, an Individual Cases 20–CA–157693
20–CA–157705
and 20–CA–157761
20–CA–157884
ADILIO PRIETO, an Individual
and
LUZ DARY DUQUE LOPEZ, an Individual
Carmen Leon, Esq., and Min-Kuk Song, Esq.
for the General Counsel.
Nick C. Geannacopulos, Esq.,
Alison Loomis, Esq., and Candice T. Zee, Esq.
for the Respondent.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This controversy involves an
extremely contentious relationship between union shop stewards and their employer. In response
to vigorous advocacy by the shop stewards in complaining about increased disciplinary actions
against certain employees, the employer unlawfully suspended and terminated well known and
active Shop Stewards Jose La Serna (La Serna) and Adilio Prieto (Prieto), and unlawfully
terminated newly elected Shop Steward Esther Quintanilla (Quintanilla). I also find, however,
that the employer properly suspended and terminated Luz Dary Duque Lopez (Lopez) for her
credible threats to employees and the workplace.
JD(SF)–41–17
2
This case was tried before me in San Francisco, California for 11 days between
January 17 and February 3, 2017, based upon charges filed by La Serna, Quintanilla, Prieto, and
Lopez (collectively, “Charging Parties” or “discriminatees”)). On December 30, 2016, the
Acting Regional Director for Region 20, on behalf of the General Counsel, issued an amended
consolidated complaint and notice of hearing alleging that SBM Site Services, LLC (Respondent, 5
Employer, or SBM)1 violated the National Labor Relations Act (the Act) by: suspending La
Serna on or about March 30, 2015,2 suspending Lopez on or about April 1, and discharging
Quintanilla on or about April 9 because they engaged in protected concerted activity and union
activity on about March 24 and 26 in violation of Section 8(a)(1) and Section 8(a)(1) and (3) of
the Act; discharging Lopez on about April 20, discharging La Serna on about April 23,10
suspending Prieto on about May 20, and discharging Prieto on about June 10 because they
engaged in protected concerted activity and union activity on about April 16 in violation of
Section 8(a)(1) and Section 8(a)(1) and (3) of the Act.3 Respondent filed a timely answer to the
amended complaint, denying all allegations.
15
Counsel for the General Counsel and Respondent filed post trial briefs in support of their
positions on April 14, 2017, and supplemental briefing on May 31, 2017. On the entire record,4
including my observation of the demeanor of the witnesses,5 and after considering the briefs filed
by the General Counsel and Respondent,6 I make the following findings, conclusions of law, and
recommendations:20

1 During the hearing, at times, SBM was referred to as “Somers” which is shorthand for Somers Building
Maintenance or SBM (Tr. 494–495; Jt. Exh. 24).
2 All dates are in 2015 unless otherwise specified.
3 The General Counsel withdrew complaint par. 7(d) alleging disciplinary action on May 19 (GC Br. at 72,
fn. 70).
4 The transcripts in this case are generally accurate, but I make the following corrections to the record:
Transcript (Tr. 5), Line (L. 21): “are” should be “is”; Tr. 28, L. 7: “headquarters” is “headquartered”; Tr. 59, L. 3:
“Huerta” should be “Huertas”; Tr. 75, L. 15: “agree” should be “agreed”; Tr. 89, L. 13: “saying” should be “say”;
Tr. 120, L. 23: the correct speaker is “Ms. Leon”; Tr. 122, L. 24, Tr. 132, L. 23, Tr. 321, L. 23, Tr. 322, L. 3, Tr.
329, L. 3 and L. 12: “SBN” should be “SBM”; Tr. 133, L. 17, Tr. 1180, L. 18: the correct speaker is “Mr.
Geannacopulos”; Tr. 134, L. 24: the correct speaker is “Ms. Leon”; Tr. 142, L. 2: “us ay” should be “you say”; Tr.
198, L. 6: “raised” should be “raise”: Tr. 199, L. 7, Tr. 204, L. 15 and L. 22 : “UOP” should be “ULP”; Tr. 223, L.
9: the speaker is Mr. Geannacopulos, not Ms. Leon; Tr. 341, L. 14: “ADM” should be “ABM”; Tr. 352, L. 20:
“flee” should be “flea”; Tr. 409, L. 15: “overruled” should be “overrule”; Tr. 414, L. 13: “biding” should be
“binding”; Tr. 489, L. 1: “is” should be “it”; Tr. 556, L. 23: “suspicion” should be “suspension”; Tr. 764, L. 20:
“062.915” should be “062915”; Tr. 812, L. 13, Tr. 814, L. 2, Tr. 896, L. 6: “right” should be “Wright”; Tr. 901, L.
18: “motive” should be “motion”; Tr. 906, L. 12 and 13: “GNP” should be “GMP”; Tr. 1098, L. 9: “Manger” should
be “Manager”; Tr. 1110, L. 6: the speaker is “Ms. Zee”, not “Ms. Leon”; Tr. 1143, L. 3: “here” should be “her”; Tr.
1168, L. 13: speaker is “Ms. Leon”, not “Ms. Zee”; Tr. 1219, L. 20: “prove” should be “proof”. In addition, in
various locations of the transcript, Loomis’ name is spelled incorrectly.
5 Although I have included citations to the record to highlight particular testimony or exhibits, my findings
and conclusions are not based solely on those specific record citations, but rather on my review and consideration of
the entire record for this case, including witness testimony. I further note that my findings of fact encompass the
credible testimony and evidence presented at trial, as well as logical inferences drawn therefrom.
6 Other abbreviations used in this decision are as follows: “GC Exh.” for General Counsel’s exhibit; “R.
Exh.” for Respondent’s exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for the General Counsel’s brief; “GC Supp.
Br.” for the General Counsel’s supplemental brief; “R. Br.” for Respondent’s brief; and “R. Supp. Br.” for
Respondent’s supplemental brief.
JD(SF)–41–17
3
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION INVOLVED
At all material times, Respondent, an Oregon corporation with an office and place of 5
business in McClellan, California, has been an employer engaged in the business of providing
janitorial services at commercial office buildings including Genentech at its South San
Francisco, California location which is the physical site of all alleged unfair labor practices at
issue.7 During the 12-month period ending December 31, Respondent performed services valued
in excess of $50,000 in States other than the State of California. Thus, Respondent has been an 10
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
SEIU-USWW Local 1877 (the Union) has been a labor organization within the meaning of
Section 2(5) of the Act. Based on the foregoing, I find that this dispute affects commerce and
that the Board has jurisdiction of this case, pursuant to Section 10(a) of the Act.
15
II. RESPONDENT’S ORGANIZATION
SBM is a worldwide company with approximately 8000 employees in the United States
that provides facilities management services to large corporations and business offices including
custodial services, good manufacturing practices (GMP) work and move crews, along with 20
managerial services (Tr. 712, 910, 1232).8 Since June 2011, SBM has provided custodial
services for biotechnology company Genentech’s South San Francisco facility (Tr. 39; Jt. Exh.
1).9 At the South San Francisco facility, SBM employs approximately 220 to 225 employees,
including approximately 15 to 20 lead employees (leads) and approximately 70 GMP technicians
(Tr. 40, 715, 907, 912, 1080).10 25
Respondent’s site manager is the highest-level management personnel at a specific
facility. From May 2014 to 2016, Eli Kahn (Kahn) served as the site manager at the South San
Francisco facility (Tr. 906, 1080). Kahn reported to Respondent’s account manager, Debbie
Castro (Castro) (Tr. 906). As site manager, Kahn acted as the primary point of contact between 30
Respondent and Genentech (Tr. 906). Kahn oversaw the safety program and the GMP and non–
GMP janitorial operations, and also reviewed and approved or disapproved requests for
disciplinary actions including warning forms (Tr. 906–907, 1036). In the organizational

7 All references to Genentech in this decision refer to events at its South San Francisco, California facility.
8 The term GMP is a life sciences-industry term which is written into a company’s right to operate contracts
based on Food and Drug Administration (FDA) requirements (Tr. 713–714). GMP are a set of rules and regulations
defined by the FDA requiring companies producing food, drugs or cosmetics to have certain quality standards in
place in order to sell their products to the countries it desires (Tr. 910). GMP work practices must meet FDA
guidelines including logs and documentation for production to the FDA if warranted (Tr. 713–714). The FDA
periodically inspects the facility to ensure compliance with all rules and regulations (Tr. 910–911).
9 Genentech discovers, develops, manufactures and commercializes medicines to treat patients with serious
or life-threatening medical conditions (Jt. Exh. 1; Tr. 908). Prior to SBM taking over the janitorial contract, PMC
and AMC handled janitorial services for Genentech (Tr. 39). Most, if not all, employees were hired by each
janitorial contracting company.
10 Leads are janitors within the bargaining unit represented by the Union who have the additional
responsibility of directing or assigning employees under the supervisor’s guidance and are not supervisors under the
Act (Jt. Exh. 24).
JD(SF)–41–17
4
hierarchy, the program managers for the GMP and non–GMP areas report to the site manager
(Tr. 907). John Brodie (Brodie), as program manager, supervised all the GMP operations at
Genentech’s South San Francisco site (Tr. 1098–1099). Brodie also submitted requests for
discipline to upper level management but did not make decisions in disciplinary actions (Tr.
1099). Reporting to the program managers are the assistant managers and other level managers 5
or supervisors who are the first-line supervisors of the employees (Tr. 907). The GMP
department at the South San Francisco facility has approximately 6 supervisors (Tr. 912).
Outside of Respondent’s hierarchical structure at Genentech’s South San Francisco
facility, Janice Periolat (Periolat) serves as human resources director, and reports to the vice 10
president of human resources, Paul Emperador (Emperador) (Tr. 1230). Periolat’s
responsibilities include compliance with collective bargaining agreements between Respondent
and labor organizations as well as disciplinary investigations (Tr. 1230, 1233). Periolat does not
make decisions on verbal or written warnings but may recommend and issue suspensions and
terminations (Tr. 1239–1240, 1268). Sonia Trinidad (Trinidad), who is Respondent’s employee 15
relations manager, does not work at any particular facility, but leads the orientation of new hires
and assists with their transition to Respondent (Tr. 1192, 1231). Trinidad also reports to
Emperador (Tr. 1231). Trinidad has the right to recommend, request and issue disciplinary
action (Tr. 1218).
20
At all material times, in addition to the above–named supervisors and/or agents for
Respondent, the following persons are also considered supervisors and/or agents within the
meaning of Sections 2(11) and 2(13): Marcia Silva (Silva), program manager; Ulices Cazarez
(Cazarez), environmental health & safety manager; Mauricio Perez (Perez), program manager;
Jorge Rodriguez (Rodriguez), program manager; Mike Jedan (Jedan), vice president of 25
operations; Brian Hawes (Hawes), senior environmental health & safety manager; Lisette Mutt
(Mutt), field HR coordinator; Juan Mendoza (Mendoza), program manager; and James Sanchez
(Sanchez), GMP supervisor.
III. RESPONDENT’S EMPLOYEES AT GENENTECH’S SOUTH SAN FRANCISCO FACILITY30
Since Genentech manufactures medicines, the cleaning employees perform is highly
specialized and technical (Tr. 907–908). As part of Genentech’s right to operate (its license to
develop and market its medicine in various countries), the medications must be produced in a
clean environment per standard operating procedures (SOPs) (Tr. 716, 908–910, 914). Cleaning 35
tasks vary by day, week, and month as well as location within the facility (Tr. 360–361, 909).
Daily cleaning includes removing trash, mopping and wiping and cleaning drains (Tr. 361).
Weekly cleaning includes cleaning tanks and pipes (Tr. 362). Monthly tasks include more
complete cleaning from the floor to ceiling (Tr. 362).
40
Employees are divided by their work areas: custodians who work in uncontrolled areas
and GMP technicians (techs) who work in the controlled areas (Tr. 40, 402, 715–716, 827).
There are three controlled areas at the South San Francisco facility (Tr. 716). GMP techs are
required to follow SOPs, which are rules that instruct employees on how to clean and sanitize
specific areas, and are given specialized multi–stage training including classroom training, 45
studying SOPs and knowledge assessments, and a few months of on–the–job training (Tr. 402,
JD(SF)–41–17
5
404–406, 407–409, 909, 911, 913, 915).11 At the conclusion of their initial training period, GMP
techs are given a skills assessment where Genentech certifies that each employee is qualified to
work in the GMP department (Tr. 411, 432, 913, 1100). Furthermore, GMP techs access to
buildings via their employee badge depends on their training level (Tr. 916, 1234). Finally,
GMP techs earn more money than custodians due to the level of training required to clean5
controlled areas (Tr. 407, 912, 1101).
At the start of every shift, the leads send employees to clean specific areas (Tr. 363). The
leads take supplies to employees, check on employees’ cleaning areas, grade reports, check the
loading docks and make sure that everything goes well during the shift (Tr. 951–952).10
IV. RESPONDENT’S TRAINING AND HANDBOOK AND SAFETY RULES
As part of its training for all employees, Respondent provides its employees with an
employee handbook and employee safety manual, in both English and Spanish, during new hire 15
orientation (Jt. Exh. 1, 3(a) and (b), 4(a) and (b); R. Exh. 130; Tr. 917, 1242). During
orientation, employees are trained on the employee handbook, given their expectations, and
informed on how to contact human resources, make confidential complaints, and reach payroll
(Tr. 1243).
20
The relevant handbook rules include:
 Unacceptable conduct which can lead to immediate termination defined as willful
violation of any SBM or safety regulation, rule or policy; failure to wear required
safety equipment; engaging in criminal conduct, acts of violence or threatening 25
violence; threatening, intimidating or coercing fellow employees for any purpose;
dishonesty, willful falsification or misrepresentation of information; and working
for a competing business while an SBM employee.
 Employees agree not to engage in any business activity which may conflict with
SBM, and failure to disclose facts shall constitute grounds for disciplinary action 30
including termination.
 Progressive discipline in the employee handbook states that unacceptable
behavior which does not result in immediate dismissal may be handled with a
verbal warning, first written warning, second written warning, and dismissal.
Suspensions may be included as well. 35
 Zero tolerance policy for violence in the workplace or any extreme or detrimental
act including making threats of violence toward anyone on SBM premises,
customer’s worksite, or when representing SBM, and threatening, intimidating or
coercing fellow employees for any purpose.
 All injuries, no matter how slight, must be reported immediately. 40
Respondent considers safety an important matter in the workplace (Tr. 916, 1100). As
for safety training, employees receive an introductory training which covers Occupational Safety
and Health Administration (OSHA) requirements for communication such as reporting
hazardous materials, blood borne pathogens, and emergency procedures for fire or other

11 SOPs are also referred to as SOBs (Jt. Exh. 24).
JD(SF)–41–17
6
accidents and incidents (Tr. 916–917, 1100). Respondent instructs that in the event of an
accident or injury, employees who are physically capable, must report all accidents and injuries
immediately after the event, no matter how minor (Tr. 917; R. Exh. 130). If an employee fails to
immediately report an accident, the employee would be committing a policy violation and
progressive discipline would ensue (Tr. 922).5
At orientation, employees are given a checklist which indicates the documents they
received (R. Exh. 3, 28, 49, and 49b, 93). Employees also sign an acknowledgement which
states, “I realize that it is my responsibility to read and understand both handbooks and to abide
by all of the policies in the handbooks” (Jt. Exh. 6). The rules contained in the handbook and 10
safety manual were in effect from 2011 through the dates of discipline of La Serna, Quintanilla,
Lopez, and Prieto (Tr. 254).12
In addition, Respondent provides classroom training and weekly training called safety
chats where the employees and managers discuss current issues (Tr. 917–918, 1100). Employees 15
have been instructed to “stop the job” if they feel unsafe or if they have not had adequate training
to complete the task, and escalate the situation to their manager (R. Exh. 131). The training
handouts also indicate that no employee would be disciplined for stopping any job for a safety
concern (R. Exh. 131). This training was provided to employees, including Quintanilla, on
February 11 (R. Exh. 132). Employees have also been given training on “Basic Do’s and 20
Don’ts” (R. Exh. 133). This training instructs employees that they must report all work–related
incidents and injuries to a supervisor immediately; Quintanilla signed a written
acknowledgement that she attended this training on March 19 (R. Exh. 133).
V. THE UNION25
The Union represents custodians, GMP techs and leads employed by SBM (Tr. 41, 952).
SBM and the Union were parties to a collective-bargaining agreement (CBA), effective May 1,
2012, through April 30, 2016 (Jt. Exh 1, 2(a) and (b)).13 Union representatives, as used in this
matter, refer to the president, organizers, or vice presidents who are employees of SEIU-USWW 30
(Jt. Exh. 24). Shop stewards are employees of Respondent who hold elected positions (Jt. Exh.
24).
In 2015, for the Union, Denise Solis (Solis) served as vice president; David Huertas
(Huertas) served as president; David Cota (Cota) and Pedro Malave (Malave) served as 35
coordinators; Cesar Diaz (Diaz), Yvonne Pasaran (Pasaran), and Monica Rueda (Rueda) served
as organizers; and Alejandra Arostegui (Arostegui) served as lead organizer (Jt. Exh. 24).
As for the shop stewards in 2015, La Serna served as shop steward since 2006 (Tr. 41,
230). Prieto served as shop steward since 2011 (Tr. 365). The other shop stewards in 2015 were 40
Eduardo Fernandez (Fernandez), Luz Betty Ruiz Outten (Ruiz), and Luis Loli (Tr. 49).
Quintanilla ran for shop steward in 2015, was on the March 26 ballot, and was elected. Lopez

12 La Serna, Quintanilla, Lopez, and Prieto acknowledged receipt of the handbook and safety manual in
either May or June 2011 (Jt. Exh. 6, 9, 11, 14). In addition, Prieto acknowledged the safety program rules and
standards which also outlined the disciplinary steps for any infractions (R. Exh. 78(a) and (b)).
13 Art. XVII of the CBA covers grievances and arbitrations.
JD(SF)–41–17
7
never served as a shop steward but was a union supporter. Shop stewards represent employees in
their individual complaints against Respondent, represent employees during disciplinary actions,
and attend labor-management meetings (Tr. 41–42, 46, 230, 366–367, 828–829).14 In late 2014
to 2015, Kahn, Periolat, and Emperador attended labor-management meetings along with La
Serna, Prieto, Quintanilla, and other union representatives including Diaz (Tr. 42–44, 368). At 5
other times, Trinidad attended these labor-management meetings (Tr. 44, 1193–1194).
VI. THE SHOP STEWARDS’ COMPLAINTS
Due to an increase in disciplinary actions issued to employees, shop stewards La Serna, 10
Fernandez, Prieto, and Ruiz sent a letter via email and regular mail on January 5 to union
President Huertas (GC Exh. 48(a) and (b); Tr. 48, 288). The letter detailed the problems the
employees were having with Respondent and how the union representatives failed to defend their
rights (Tr. 59; GC Exh. 48(a) and (b)). The shop stewards received no response from Huertas.
La Serna and another shop steward, thereafter, created a flyer requesting that employees meet15
together on January 15 (GC Exh. 46(a) and (b)). The flyer announcing the meeting stated, in
part:
STOP THE UNJUSTIFIED DISCHARGE OF GENENTECH JANITORS:
ROXANA CORDOVA, ESTHER RODRIGUEZ, EDA BLANCO, ELDA 20
CORTEZ, MARLON ALEMAN AND DARLENE BRENES.
STOP THE UNDUE WITHDRAWAL OF PAID VACATION, THE
CONTRACT OBLIGATES THE CONTRACTORS FROM CANCELLING
PAID VACATION EACH YEAR;25
STOP THE LABOR HARASSMENT AGAINST JANITORS;
NO TO THE OPPRESION [sic] AGAINST UNION SHOP STEWARDS;
30
(GC Exh. 46(a) and (b)). This flyer did not identify the author or sponsors of the meeting, but
the record demonstrates that La Serna and Prieto were active shop stewards.
In response, Respondent posted a letter to employees to rebut the announcement of a
January 2015 meeting (GC Exh. 47(a) and (b)).15 Copies of Respondent’s letter was posted in 35
entryways, in announcement bulletin boards, and stacked next to the time clocks (Tr. 50–52).
On January 15, the announced meeting took place, attended by the shop stewards (Tr.
67). No paid union representatives attended the meeting (Tr. 67).
40
VII. RESPONDENT’S MARCH 30 SUSPENSION AND APRIL 23 TERMINATION OF LA SERNA
A. Background Prior to La Serna’s Suspension

14 Several of the witnesses testified to serving as delegates for the Union. The term delegate refers to shop
steward per the parties’ stipulation (Jt. Exh. 24).
15 The term assembly refers to meeting (Jt. Exh. 24).
JD(SF)–41–17
8
Since 2000, La Serna worked as a custodian and GMP tech for various contractors at
Genentech’s South San Francisco facility (Tr. 39, 229; R. Exh. 7(a) and (b)). He worked
Monday through Friday from 6 p.m. to 2:30 a.m., and reported to Mendoza (Tr. 40). La Serna
also served as an active and vocal shop steward for many years. 5
Thereafter, on February 20, Trinidad along with Brodie and Sanchez approached La
Serna in his work area at 1:30 a.m. (Tr. 79). La Serna testified that Trinidad accused him of
spreading a rumor that Respondent lost its contract with Genentech (Tr. 79). La Serna denied
Trinidad’s accusations. La Serna, in turn, accused Trinidad of talking to employees about not re-10
electing La Serna as shop steward (Tr. 79–80). Trinidad then shifted topics and told La Serna
that he had been tardy many days, which La Serna admitted (Tr. 80). The meeting ended after
30 minutes.16
On February 23, La Serna sent an email to Arostegui (GC Exh. 40(a) and (b)). La 15
Serna’s purpose in sending this email to Arostegui was to make him aware that Trinidad was
harassing him on January 30 and February 20, as well as the general discipline of employees. In
this email, La Serna wrote, “she threatened me saying that she ‘was going to finish this little
game’” (GC Exh. 40(a) and (b)).17 Thus, on February 24, Solis, Arostegui, Diaz, La Serna, and
the other shop stewards met at a restaurant (Tr. 88). They discussed the workplace problems, 20
and Arostegui informed the meeting attendees that the Union would file a grievance against
Trinidad and collect employee signatures requesting her dismissal (Tr. 88–89).
On February 25, Trinidad and Mendoza gave La Serna a request for disciplinary action
for alleged tardiness 30 times in 3 months (GC Exh. 30). La Serna admitted to arriving late on 25
some occasions but did not agree with all the dates listed in the request for disciplinary action
(Tr. 310–311). Ultimately, Respondent did not discipline La Serna for this alleged tardiness (Tr.
312).

On February 26, Brodie sent Kahn an email regarding information he had gathered about 30
the Union (GC Exh. 205; Tr. 1149). Brodie informed Kahn that Prieto, La Serna, and Fernandez
decided to grieve two matters, including asking Respondent to remove Mendoza and Trinidad
from the South San Francisco facility (GC Exh. 205). In addition, Brodie informed Kahn that
the election would be held soon and that by March 11, the identity of candidates would be known
(which he would share with Kahn) (GC Exh. 205).35
On February 27, Diaz sent an email to La Serna stating that Respondent wanted the
Union to drop the grievance against Trinidad and that he needed witness statements within the
next few days (GC Exh. 40(a) and (b)). According to La Serna, the signatures were never
collected because Diaz failed to create a signature list with the Union’s letterhead and logo (Tr. 40
89–90).

16 Trinidad and Brodie did not confirm or deny this encounter with La Serna as they were not questioned
about this event. Thus, I rely upon La Serna’s unrebutted account of the February 20 meeting.
17 Trinidad was never questioned about this alleged statement. As it was unrebutted, I accept La Serna’s
testimony that Trinidad made this comment.
JD(SF)–41–17
9
Thereafter, the shop stewards planned an employee meeting for March 24 at 3 and 5 p.m.
in the parking lot of the South San Francisco facility.18 To promote the meeting, La Serna
created a flyer which stated:
STOP THE NON–COMPLIANCE OF THE CONTRACT BETWEEN THE 5
UNION AND CONTRACTORS!!!!
STOP THE UNJUSTIFIED DISCHARGES OF GENENTECH JANITORS !!!!!
LET’S BE INFORMED AND DISCUSS IMPORTANT ISSUES !!!!!10
YOUR PRESENCE IN THIS ASSEMBLY IS IMPORTANT !!!!
(GC Exh. 49(a) and (b)). Employees, including Lopez, and shop stewards distributed the flyer
(Tr. 93–94, 510–511). One day prior to the meeting, La Serna, Fernandez, Prieto, and Ruiz sent 15
an email to Solis informing her that they planned to have an employee meeting the next day; they
also informed her of their reasons for having the meeting (GC Exh. 53(a) and (b)). Solis did not
respond to the email (Tr. 94).
On March 24, La Serna, Prieto, other shop stewards and many employees, including 20
Lopez, participated in these two scheduled meetings (Tr. 95, 97, 511–512, 830).19 Leads Beatriz
(Betty) Alcantara (Alcantara), Elizabeth Barrientos (Barrientos), and Lucia Hernandez
(Hernandez) also attended (Tr. 98, 340, 632). Both meetings followed the same agenda. The
shop stewards discussed the “serious things that were happening” at Respondent’s facility,
including the discipline and termination of employees and the grievance against Trinidad (Tr. 25
95). The shop stewards then decided to file a “petition” with Genentech (Tr. 95–96, 530). No
paid union representatives attended either meeting (Tr. 99).
In addition, during one of these meetings, employees complained about the “attitude” of
the leads and that the leads were “misinforming” Respondent about the employees and telling
“lies” (Tr. 342–343, 832–833). La Serna generally stated that the leads should not mislead 30
management about the employees they led as they were “asking that the Company carry out
more discipline” (Tr. 106–107, 515, 529–530, 830). Lopez also spoke during the second
meeting, stating that she was tired of asking Respondent to provide education to its employees to
ensure that they knew how to perform their jobs while avoiding making mistakes (Tr. 515–516,
526, 529, 832). Lopez also stated that the leads give the employees the tools and resources to 35
carry out their tasks but did not have the authority to discipline anyone (Tr. 527). La Serna
testified that Lopez referred to the leads, some of whom were allegedly supporting Respondent’s

18 By 3 p.m., the day shift employees would be off duty as many of their shifts ended at 2 p.m. (Tr. 308).
The night shift employees could attend the 5 p.m. meeting prior to the start of their shift. (Tr. 94–95).
19 Prieto only attended the 3 p.m. meeting, while La Serna and Lopez attended both meetings (Tr. 97, 830).
The record does not establish whether Quintanilla attended the March 24 meetings.
JD(SF)–41–17
10
discipline of employees, but did not name them (Tr. 109). After the meeting, Hernandez and
Barrientos spoke privately with La Serna about the meeting and the accusations made against
them (Tr. 109–110).20
B. La Serna’s Representation of Quintanilla on March 265
On March 26, La Serna represented Quintanilla, who was a custodian, in a potential
disciplinary action regarding an injury incident on March 5 (Tr. 123, 929). While on duty on
March 5, Quintanilla was injured. Respondent’s Manager Hawes, on March 5, at 4:12 p.m., sent
an email to management regarding Quintanilla’s reported injuries that day (R. Exh. 101). 10
Hawes’ email states, “When asked why she did not report this incident when it occurred [at
approximately 11:30 a.m., that morning], she [Quintanilla] states that she called her [first line]
supervisor [Silva] at the time of injury. Supervisor states she did not call nor does her phone
have any missed calls. Site will investigate proper disciplinary actions for late reporting” (R.
Exh. 101). Kahn thereafter wanted to verify whether Quintanilla attempted to contact Silva, and 15
asked Silva to check her cell phone call record and to check her office phone (Tr. 931). Silva
reported no calls missed (Tr. 931–932). According to Kahn, he learned from Silva that
Quintanilla had been injured mid-day but had not reported her injury until the end of the day (Tr.
930).21 On March 10, Kahn then proceeded with a request for a warning for violation of the
employee handbook, safety rules, page 54, as Quintanilla did not report her workplace injury on 20
time: the injury occurred at 11 a.m. and she reported it at 3 p.m. (Tr. 128, 932–933; R. Exh. 102).
On March 11, Cazarez investigated Quintanilla’s injury by questioning her.
Thereafter, on March 26, Quintanilla asked La Serna to represent her because she
received a warning from Respondent, and she wanted to meet with management (Tr. 128; GC 25
Exh. 4a and 4b). The meeting took place at 11 a.m., in Genentech’s building 54 conference
room (Tr. 128). Kahn represented Respondent (Tr. 128). During this meeting, Quintanilla spoke
first, stating that the discipline given to her had been unfair (Tr. 128, 934). Quintanilla explained
she had made a phone call to report her injury the day it took place, claiming that her injury
occurred on March 6, and she showed her March 6 phone log to Kahn (Tr. 129, 271–272, 934). 30
Kahn pressed Quintanilla to make sure that she was firm on her date because his documentation
showed March 5 (Tr. 934, 1094, 1253). Again, Quintanilla disagreed, stating that her injury
occurred on March 6 (Tr. 934–935, 1094–1095). Kahn asked for a copy of Quintanilla’s phone
log and a written record of her version of events (Tr. 935; R. Exh. 105, 106). Kahn then called
Silva and asked her for Quintanilla’s workplace injury documentation (Tr. 129–130). Silva then 35

20 For Respondent’s investigation of La Serna and Lopez, Hernandez and Barrientos submitted individual
statements (GC Exh. 208, 209). Hernandez submitted a statement where she essentially complained that La Serna
spoke badly about Respondent and Trinidad during this meeting, and Lopez identified her as a lead that “traps”
people (GC Exh. 208). Hernandez wrote that after the meeting she spoke to La Serna about these statements during
the meeting (GC Exh. 208). In an undated statement, Barrientos wrote primarily about Lopez who she claimed
would laugh and tease her because she received recognition from Respondent. She again wrote about Lopez’
“defamation” of her to all the employees at these meetings. Neither Hernandez nor Barrientos testified at the
hearing. Despite the General Counsel’s urging (GC Br. at 92, fn. 93), I decline to take an adverse inference because
Respondent did not call Barrientos and Hernandez to testify. The salient fact here is not whether their allegations
were credible but that they complained about La Serna’s conduct at these meetings which resulted, in part, in his
suspension.
21 On March 6 at 8 a.m., Silva entered the injury into Respondent’s designated database (R. Exh. 107).
JD(SF)–41–17
11
came to the meeting but told Kahn she did not have the documentation (Tr. 130). Kahn said he
would review the matter and give Quintanilla a response that afternoon (Tr. 130). The meeting
ended.
Based upon his preliminary review of evidence, Kahn believed that Quintanilla 5
intentionally tried to falsify the timing of her injury to avoid receiving discipline, so he asked for
a review by human resources (Tr. 942). Meanwhile, Trinidad spoke to Periolat to obtain advice
regarding Quintanilla, and Periolat recommended that Trinidad interview and obtain a statement
from Quintanilla (Tr. 1247–1248). Periolat told Trinidad to suspend Quintanilla and investigate
the matter further after Quintanilla insisted that Respondent had the wrong date of her injury (Tr. 10
1249–1250). Periolat only learned of Quintanilla’s identity after she was suspended (Tr. 1248,
1250).
The second meeting regarding Quintanilla occurred around 4 p.m. Around that time, La
Serna returned to building 54 at the South San Francisco facility (Tr. 130–131). He came in 15
earlier than his shift time because the Union was conducting elections from 1 to 6 p.m., for shop
stewards (Tr. 130–131, 373).22 While in the conference room where the elections were being
held, Diaz asked La Serna and Prieto to represent Quintanilla in a meeting scheduled by Trinidad
(Tr. 130–131, 374).
20
La Serna and Prieto then went to the same conference room where the morning meeting
regarding Quintanilla was held (Tr. 136, 374, 1208). This conference room included an oval
table with seating for 8 (Tr. 143–144). This table took up much of the space in the conference
room (Tr. 143).23 Prieto testified that Trinidad began the meeting by stating that Quintanilla
would be suspended due to falsification of documents, and requested her badge (Tr. 136–137, 25
375; GC Exh. 5a and 5b).24 The suspension notice stated, “Falsifying information about the
security incident pertaining to work that occurred on March 5, 2015,” and a final disciplinary
action would be determined after an investigation and/or review of the employee’s disciplinary
file (GC Exh. 5a and 5b). Cazarez, who led Respondent’s security, spoke next, reiterating

22 The Union announced the election to employees in the days prior by handing out flyers, and placing
announcements at the time clocks and on bulletin boards (Tr. 131–132). The names of the 10 employees running for
shop steward were listed on the flyers including Fernandez, Prieto, Ruiz, Quintanilla, Giovana Loli, Louis Loli, and
La Serna (Tr. 132, 372–373). Quintanilla ran for and was elected Union shop steward. Kahn could not recall if
Quintanilla was running for shop steward when she provided him with the call log and written statement (Tr. 948).
However, on cross-examination, Kahn admitted that he knew who the stewards were before the election, who was
running for steward and who was elected (Tr. 1086). I do not find Kahn to be credible on his knowledge of who
engaged in union activity. He had been told by Brodie on February 26 that an election would be held soon, and that
he would inform Kahn of the names of the candidates. It is more likely than not that Brodie told Kahn before
Quintanilla’s suspension that she was a candidate for shop steward.
23 In its post-hearing brief, Respondent included a diagram of the conference room including table and
chairs (R. Br. at 27). The General Counsel filed a motion to strike the diagram because it was not admitted into
evidence and not an accurate depiction of the conference room (see GC Motion to Strike). In response, Respondent
argues that the motion to strike should be denied as the diagram is permissible demonstrative evidence (R. Reply to
Motion to Strike). The General Counsel responded. I grant the General Counsel’s motion to strike as the diagram
was not marked at the trial with an opportunity for the parties to respond. See Bearid–Poulan Division, Emerson
Electric Company, 233 NLRB 736, fn. 1 (1977). Even if I were to deny the General Counsel’s motion to strike, I
give little weight to Respondent’s diagram in its brief, and instead rely upon witness testimony as set forth in my
findings of fact and credibility determination.
24 Quintanilla’s suspension is not alleged as a violation of the Act (Jt. Exh. 1, 10).
JD(SF)–41–17
12
Trinidad’s comments regarding the decision to suspend Quintanilla (Tr. 375). In response, La
Serna said that the suspension was unfair, and that “it was an abuse that was being done” (Tr.
375). La Serna’s comment made Trinidad upset and she stated that La Serna was insulting her
(Tr. 375). Trinidad reiterated the decision to suspend Quintanilla, and Prieto told La Serna to
wait and he left the conference room to get Diaz (Tr. 375–376). Prieto told Diaz that he needed 5
to go into the conference room because “the situation was getting really ugly” (Tr. 376). Prieto
then stayed in the election conference room (Tr. 376). 25
After Diaz entered the meeting, he asked why Quintanilla was being suspended, and
Trinidad responded that Quintanilla was being suspended because she had falsified information 10
(Tr. 139, 273). Diaz then asked for further details, and Trinidad left the conference room and
returned with Quintanilla’s work injury report (Tr. 139). Quintanilla reviewed the report and
told Trinidad that the report was filled out by Silva (Tr. 139). Trinidad replied that she still
intended to suspend Quintanilla (Tr. 140).
15
A dispute then ensued where La Serna, Trinidad, Cazarez, and Diaz stood up from the
conference table and spoke loudly at the same time (Tr. 141–142).26 Only La Serna and Trinidad
testified at the hearing, and provided contrasting version of events.27
La Serna admitted that there were loud tones of voice (Tr. 274, 319). He testified that he
told Trinidad that she was looking for any reason to punish employees, and told her that she was 20
looking for employees to have her removed from the South San Francisco work site (Tr. 142,
147). Trinidad responded, “Well before I leave, you will leave” (Tr. 142).28 According to La
Serna, Diaz then asked La Serna and Quintanilla to leave the meeting, and remained in the room
with Trinidad and Cazarez as they did (Tr. 146).
25

25 La Serna and Prieto provided differing versions of the start of this critical meeting. For the time in
which he was in attendance, I credit Prieto’s testimony regarding this meeting. Prieto’s testimony of events seemed
more likely to have occurred than La Serna’s version of events. La Serna testified that Trinidad refused to provide a
reason for suspending Quintanilla, and that Cazarez did not initially attend the start of the meeting (Tr. 137–138).
Unlike La Serna, Prieto testified that Trinidad immediately told Quintanilla why she was being suspended, and that
Cazarez attended the meeting from its beginning. I find it unlikely that Trinidad would not immediately inform
Quintanilla for the reason why she was terminated. Earlier in the day Kahn informed Quintanilla he would be
making a decision and it makes little sense to hide the reason from her at the start of the meeting. Therefore, I rely
on Prieto’s version of the meeting while he was in attendance.
26 Trinidad and Cazarez sat on one side of the conference room table and La Serna and Quintanilla sat on
the opposite side of the table (Tr. 146). When Diaz entered the meeting, he sat at the head of the table with La Serna
to his right and Trinidad to his left (Tr. 146).
27 Perez, Cazarez, and Diaz provided statements to Respondent during its investigation of La Serna’s
conduct. I specifically give little weight to these statements. None of these individuals testified at the hearing. The
General Counsel subpoenaed Diaz but he did not appear at the hearing (GC Exh. 407). The General Counsel chose
not to enforce the subpoena (Tr. 1317–1318). Perez and Cazarez no longer work for Respondent, and are not within
their control (Tr. 735). Thus, the three statements are not dispositive to my credibility determination and only
provided to demonstrate Respondent’s investigatory process. In addition, Respondent’s request for an adverse
inference regarding any factual question which arose during this March 26 meeting as Diaz did not testify is denied
(R. Br. at 81, fn. 27). Again, I give little weight to Diaz’ statement since he did not testify, and rely solely on my
credibility resolution between La Serna and Trinidad.
28 La Serna documented this meeting per Diaz’ request on April 15 (R. Exh. 13(a) and (b)). La Serna’s
April 15 statement is essentially consistent with his testimony at the hearing.
JD(SF)–41–17
13
In contrast, Trinidad testified that, after she insisted that Quintanilla turn in her badge, La
Serna “slammed his hand on the table and literally pushed his chair back hard enough where he–
it hit the wall. He stood up. As soon as he stood up, I stood up immediately” (Tr. 1213). La
Serna then started walking towards her, yelling at her that he was going to get rid of her (Tr.
1214). Trinidad responded with an expletive while she was in a corner of the room (Tr. 1214). 5
Then, according to Trinidad, Diaz came between La Serna and her, and shoved La Serna out the
door, after which Trinidad started walking to the door and slammed the door to put some space
between La Serna and her (Tr. 1214–1215).29
Later that evening at 10:30 p.m., Trinidad met with La Serna again in the conference 10
room of building 54 (Tr. 150, 677). This time La Serna was called to represent Lucina Vargas
(Vargas) (Tr. 150). Trinidad sought to discipline Vargas with a warning for allegedly parking in
a handicapped spot (Tr. 150). La Serna agreed that Vargas should be disciplined but argued for a
verbal warning instead (Tr. 151). Trinidad stated that she would consider the suggestion (Tr.
151). This meeting lasted 15 to 20 minutes (Tr. 151).30 15
I credit the testimony of La Serna over the testimony of Trinidad as to the Quintanilla
discipline meeting. First, based on the layout of the conference room, I do not find it likely that
La Serna had the physical space to push back from his chair, and walk towards Trinidad.
However, I do believe that La Serna told Trinidad that he was going to get rid of her. The shop 20
stewards for some time had been dissatisfied with Trinidad’s conduct towards the employees and
filed a grievance requesting her removal. Circumstantial evidence supports a conclusion that
Trinidad learned about this grievance from Brodie or Kahn. This meeting became contentious
almost immediately. Trinidad clearly became offended by La Serna’s “aggressive” defense of
Quintanilla, which Trinidad and Cazarez found to be “offensive.” I find that Trinidad testified in 25
a hyperbolic manner, embellishing the concern for her physical safety, as her actions after this
meeting certainly does not demonstrate that she was concerned for her wellbeing. She did not
call for security to remove La Serna from the South San Francisco facility, and in fact, met with
him that very night to discuss another disciplinary. Thus, I credit La Serna’s version of events
rather than Trinidad’s version. 30
C. La Serna’s March 30 Suspension
Periolat testified that she began looking into investigating La Serna in March 2015 when
she received a statement from female coworkers about La Serna’s conduct (Tr. 1286–1287). 35
During this time, Trinidad contacted Periolat upset about what she perceived as a “verbal
altercation” with La Serna where she felt “threatened” on March 26 (Tr. 1286–1287). Trinidad
provided her statement to Periolat (R. Exh. 11). Based upon the statement, Periolat
recommended suspension due to La Serna’s alleged harassment of his “co-workers” Hernandez
and Barrientos as well as Trinidad (Tr. 1288; R. Exh. 2). 40

29 Trinidad documented this interaction a day later, admitting that La Serna acted in his capacity as a shop
steward, and provided her statement to Periolat (R. Exh. 11). I reject Trinidad’s version of events as she dramatized
and exaggerated La Serna’s conduct towards her.
30 Trinidad again met with La Serna on March 30 concerning the suspension of Oscar Otoye (Otoye) (Tr.
151). This meeting lasted more than 30 minutes with La Serna providing alternate discipline suggestions and
thereafter went back to his work location (Tr. 153–154).
JD(SF)–41–17
14
Therefore, on March 30, at 8 p.m., Brodie, Perez, Jedan, and Castro met with La Serna
and Prieto, as his representative, in the building 54 conference room (Tr. 155–156, 1148). At the
start of the meeting, Brodie called Periolat who attended the meeting telephonically (Tr. 156,
1148). Periolat told La Serna that Respondent would be suspending him because he was 5
insubordinate and had intimidated Trinidad during the March 26 meeting regarding Quintanilla’s
suspension (Tr. 42, 156, 1288–1289). Periolat also stated that there were some complaints from
other employees about La Serna (Tr. 158–159).
La Serna responded to the allegations stating that he had not been insubordinate or 10
intimidating to Trinidad, and the “strongest words” he had used was that Trinidad was “being
abusive” (Tr. 157). Prieto also stated that he had been present during this meeting but needed to
leave the meeting so Diaz could be present, and denied that La Serna acted in an insubordinate
manner or intimidated Trinidad (Tr. 157–158). Brodie provided La Serna with a notice of
suspension which stated:15
Event of 3/26/15 in which Employee [La Serna] became verbally abusive, hostile,
aggressive and acted in an intimidating and threatening manner, in violation of the
following policies:
*Business Ethics & Conduct (page 15 Employee Handbook): communicate 20
respectfully with other employees, *Unacceptable Conduct (page 15–16
Employee Handbook) Insubordination, refusing to obey instructions, threatening,
intimidating or coercing fellow employees for any purpose, General Misconduct
Prohibited Harassment & Discrimination (page 17 Employee Handbook): verbal,
physical or visual, includes any unwelcome or offensive conduct that may be 25
based on an employee’s protected charachteristic [sic], *Violence in the
workplace; SBM requires an environment free from intimidation and threats.
In addition to the events of 3/26/15, SBM is in receipt of several female employee
statements complaining of harassing, intimidating behavior LaSerna [sic] directed
at them. These allegations will be investigated concurrently with the events of the 30
26th in our due diligence to identify any connection.
(GC Exh. 2(a) and (b)). The notice also indicated that the final disciplinary action would be
determined upon the conclusion of human resources’ investigation and/or review of La Serna’s
disciplinary file (GC Exh. 2(a) and (b)). Respondent asked for La Serna’s badge, which he 35
provided to Brodie, and he left the building (Tr. 158, 275–276, 1148).
The badge permits an employee to enter the buildings at the South San Francisco facility.
According to La Serna, the streets surrounding the buildings are public (Tr. 276–278). La
Serna’s testimony was unrebutted. Brodie testified that at the suspension meeting, La Serna was 40
told that he should not be on the Genentech property or campus (Tr. 1148, 1289). La Serna
asked if he could return onsite to represent an employee, but this request was denied (Tr. 1148).
He also asked if he could return onsite for a meeting between Respondent and the Union about
another matter but was similarly denied (Tr. 1148, 1289).
45
JD(SF)–41–17
15
At the hearing, La Serna disavowed Respondent’s claim that Brodie told him that he
could not come back on the property (Tr. 279). The issue of permission to return to the South
San Francisco campus is critical. Brodie and Castro testified consistently that they informed La
Serna he could not come back onto Genentech’s property for any reason. Furthermore, Brodie
and Castro’s contemporaneous notes reflect such instructions (R. Exh. 12; Tr. 1148). Moreover, 5
the evidence shows that on at least two occasions, after his suspension, La Serna requested
permission to return to the South San Francisco facility to attend meetings, and his requests were
granted. However, Respondent’s instructions were ambiguous at best. According to La Serna’s
unrebutted testimony, the streets surrounding the Genentech campus are public. Thus, La
Serna’s testimony is truthful in that Respondent never informed La Serna that he could not return 10
to the public spaces surrounding the campus. But La Serna had an understanding that he needed
to obtain permission from Respondent before entering any of its buildings. Therefore, although I
credit Brodie and Castro’s testimony that they told La Serna he could not come back on the
campus or property, La Serna’s testimony has also some truth in that he was not told he could
not come onto the public areas without permission. Based on these varying accounts, it is clear 15
that Respondent failed to clarify its instructions to La Serna.
D. The Union files a grievance regarding La Serna’s suspension
On April 1, La Serna sent an email to Diaz and Solis, along with other unidentified 20
recipients, regarding his suspension (GC Exh. 32(a) and (b)). In this email, La Serna noted that
Diaz was present for the discussion in which he was accused of insubordination and intimidation.
La Serna states, “The strongest word that I remember staying to Mrs. Sonia Trinidad was that it
was what she was doing with the suspension of our delegate Esther Quintanilla was an “abuse.”
I believe you have a strong enough argument to ask that the suspension be lifted immediately” 25
(GC Exh. 32(a) and (b)). La Serna wrote that his discipline is due to his union activities, not for
work-related issues. Finally, La Serna requested Diaz to file a grievance on his behalf. Diaz
filed a grievance with Kahn regarding La Serna’s suspension on March 30 (GC Exh. 50).
E. The April 16 March30
On April 15, the shop stewards sent an email to Huerta complaining about their problems
with Respondent (GC Exh. 54(a) and (b)). Specifically, the shop stewards complained that
Respondent had been disciplining and terminating employee-shop stewards who supported the
Union. The shop stewards also expressed frustration with the Union’s lack of support in filing 35
grievances and representing their interests before Respondent. Thus, they decided to present a
petition to Genentech the following day to inform them of Respondent’s actions. Furthermore,
the shop stewards reported that Diaz “threatened” employees who participated in the march. The
email was signed by La Serna, Fernandez, Prieto, Ruiz, Quintanilla, Ruby Olmos (Olmos), and
Martin Garcia (Garcia).31 Huerta never responded to their email (Tr. 171).40

31 Ruiz did not attend the march, but on April 15, she sent text messages to Diaz to communicate the
employees’ desire to march. Diaz discouraged the march, stating that Respondent would take action against the
employees (GC Exh. 301a and b). The Union thus appears complicit in tamping down protected concerted activity
by the employees and shop stewards.
JD(SF)–41–17
16
The shop stewards decided to march at the South San Francisco facility on April 16, and
present Genentech with a signed petition expressing the employees’ concerns with Respondent.
In preparation for the march, the shop stewards created a flyer to distribute to the employees (GC
Exh. 33(a) and (b); Tr. 312–314). The flyer was titled, “NO TO THE PERSECUTION OF
JANITORS FOR BEING UNION MEMBERS THURSDAY APRIL 16, 2 PM MARCH FOR 5
DIGNITY” [all caps in original]. The body of the flyer states,
SBM has begin [sic] implementing a policy of persecution against SBM-
Genentech Janitors for their affiliation with the union. SBM discharged in an
unjust manner our co-workers of the School B71–23: Marlon Aleman, Elda 10
Cortes, Roxana Cordova, Esther Cerrato, Eda Blanco. SBM discharged our c.
[co–workers] Darling Brenes of B3 and Emilia Juarez of B32 by creating false
testimonies. SBM discharged our delegate Esther Quintanilla for a ridiculous
discrepancy about the date of her injury, even though SBM never made an injury
report as the law requires. They suspended our delegate Jose La Serna for a 15
supposed shortcoming in his work of union representation, ignoring the labor laws
that protect union leaders. And they suspended our c. [co–workers] Luz Dary
Duque, taking as proof distorted representation of our Union Meeting, in which
SBM has no right to intervene. Likewise they threaten workers who participate in
Assemblies, Petitions, and any other action of our Union. For SBM’s arrogance, 20
the workers have a DAY TO FIGHT AGAINST THE UNJUSTIFIED
DISCHARGES AND FOR THE DIGNITY OF THE JANITORS AND FOR
UNION FREEDOM AS PROTECTED BY LAW. ALL WORKERS TO
MARCH ON THURSDAY APRIL 16 AT 2 PM.
25
NO TO SBM’S ABUSE AGAINST THE JANITORS; RESPECT FOR OUR
UNION FREEDOM !!!!
(GC Exh. 33(a) and (b) (emphasis in original)).
30
Respondent became aware of the planned march on April 14 (GC Exh. 201). Emperador
sent an email to Solis and other union representatives along with Periolat questioning the
contents of the flyer, stating “Lots of disinformation that is not productive or helpful to the
process and discussions we have had. This is also calling for people to walk off their jobs on
Thursday. Please confirm whether or not this is a union sanctioned or endorsed message and 35
event” (GC Exh. 201). A union representative responded, “The Union is not supporting any
demonstrations at Genentech. Cesar [Diaz] and other Executive Board members are calling and
meeting with the stewards at Genentech to discourage any potential demonstration. Our message
to the stewards is that any open cases/grievances we have with SBM should be allowed to move
through the grievance procedures established in NCMCA” (GC Exh. 201). That same day, Jedan 40
communicated that Respondent did not believe that there would be a work stoppage, but instead
akin to a gathering similar to the one held a few weeks prior and coordinated by “one or two
janitorial staff” (GC Exh. 202).32 This email was shared between Emperador, Periolat, and
Trinidad (GC Exh. 202).

32 A prior demonstration/gathering, which was not sanctioned by the Union, was held on April 7 by a
“newly elected shop steward” (GC Exh. 203). No witnesses testified about this event.
JD(SF)–41–17
17
Later that evening, in response to the flyer, Trinidad placed a letter from Respondent to
the employees (GC Exh. 203). This letter rebutted many of the statements in the union flyer.
With regard to the Quintanilla reference, the letter states, “Providing false information and
statements to SBM is a terminable offense. SBM takes the well-being of our employees very 5
seriously. At the same time, we expect honesty from all our employees when providing
information in regards to an incident that might have caused an injury. SBM follows all state
and federal requirements” (GC Exh. 203). In response to the suspensions of La Serna and
Lopez, the letter states, “No manager, lead, shop steward or regular employee is above SBM
policies or the CBA. We all must act respectfully, not create a hostile work environment or 10
intimidate. Also, we should not start rumors or create false stories against our co-workers” (GC
Exh. 203).
The petition, created by the shop stewards, to be presented to Genentech stated,
15
We, janitors of contractor SBM-Genentech signing this letter are turning to you.
To express our concern and discomfort because our employer SBM is doing
illegal and abusive acts against the janitors who work in your prestigious
company. Acts that are manifested in the following: SBM has applied disciplines
to workers who become ill, breaking labor laws; SBM is laying off workers 20
creating lies and justifying them with requests for claims managers Department
Genentech, as in the case of our fellow Darling Brenes (B3) and Emilia Juarez
(B31); SBM has applied disciplines and penalties for falsifying workers motives
and accumulating these disciplines and then lay off workers; SBM is refusing to
comply with the resolutions of the Master Agreement between the contractors and 25
the Union, in the process of offenses against discipline, not attending and
widening process indefinitely, thus denying the possibility of protecting workers
against the disciplines, SBM is complying with vacation pay to workers who have
earned the right under the Contract between the Contractor and the Union.
30
For these reasons Sr. Manager of Facility Genentech, we turn your attention to
become aware of our protests SBM and asked for their mediation with SBM to
change this negative situation janitors.
(GC Exh. 34: Tr. 320, 369). La Serna, Prieto, and Lopez signed this petition along with many 35
other employees (Tr. 370–371, 399).33
On April 16, employees gathered for the march at 2 p.m.34 No employees were asked to
stop their work or strike. Approximately 80 to 90 employees and shop stewards met in the
public parking lot in front of building 5 (Tr. 173, 351, 378–379, 574, 692–693; GC Exh. 55 40
(parking lot marked with an “X”)). The shop stewards present were Prieto, Fernandez,

33 Quintanilla does not appear to have signed the petition, but by this time, Quintanilla had been terminated
by Respondent (GC Exh. 34).
34 Prior to the march, Emperador sent an email to Cota and Solis, along with Periolat and Jedan stating that
he learned that the march would still occur that day, and wanted to know what the Union would do to prevent the
march as it could violate labor peace agreements (GC Exh. 404).
JD(SF)–41–17
18
Quintanilla, and La Serna (Tr. 173, 379, 574, 693, 847). Diaz and Imar Liborio (Liborio), who is
a member of the Union executive board, attended the march as well (Tr. 174, 574–575). Prior to
the start of the march, Diaz spoke to the employees and told them they should not have a march,
that they should continue their discussion with Respondent, and that they could lose their letter
of understanding with Genentech (Tr. 174–176, 314–315, 575, 692, 700).35 Liborio also echoed 5
Diaz’ comments, and stated that they should have their discussion instead within the Union as
some of the issues raised in the petition were being grieved (Tr. 175, 316, 379–380). La Serna
spoke on behalf of the shop stewards telling the employees that they should march quietly (Tr.
381, 693). The employees were asked to vote by a showing of hands whether the march should
take place (Tr. 175–176, 351, 381–382). About 30 to 45 employees voted to continue with the 10
march (Tr. 177, 236, 351–352, 693). Diaz and Liborio did not march (Tr. 179).
At approximately 3 pm., the employees then walked silently on the sidewalk towards
building 31 (Tr. 177–179, 186, 694; GC Exh. 55 (drawn black line along walking route from
parking lot at building 5 to building 31)). The employees did not hold up signs or yell during the 15
march, which took 10 to 15 minutes (Tr. 694). Once they reached building 31, Prieto and
Fernandez approached Genentech’s security guards, asking to speak to a Genentech
representative (Tr. 180, 382). Prieto testified that 15 to 20 employees and shop stewards entered
Genentech’s building (Tr. 381). They were then asked to wait outside due to the small size of
the space (Tr. 382). Thus, Prieto, Fernandez, and Lopez’ daughter (who functioned as a 20
translator) waited in the lobby while the remaining marchers, including La Serna, waited outside
the building (Tr. 181, 383).
The marchers learned that the Genentech representatives were in building 32, so they
walked to building 32 (which is next to building 31) (Tr. 181). Fernandez, Prieto, and Lopez’25
daughter went into building 32 to speak with the Genentech representatives while everyone else
including La Serna remained outside the building (Tr. 172, 181, 321, 694). Prieto testified that
they handed the Genentech representative the signed petition, and they were all asked to step
outside the building with the representative (Tr. 183, 378, 383). Outside the building, Prieto told
the Genentech representative that they were happy working at the South San Francisco facility,30
but that they were having trouble with SBM and wished for Genentech to contact Respondent to
try to resolve some of the problems (Tr. 384). Lopez’ daughter also spoke, and translated the
employees’ comments (Tr. 384). The Genentech employee stated that he would speak to
Respondent as soon as possible (Tr. 384). The meeting lasted less than 15 to 20 minutes (Tr.
384). Thereafter, the employees left the South San Francisco facility (Tr. 183, 385). Kahn 35
admitted that he saw La Serna, Prieto, and Quintanilla at this march but Kahn did not inform La
Serna that he could not be located on the sidewalks and public parking lot adjacent to the South
San Francisco campus (R. Exh. 2; Tr. 1094).36

35 Art. VI, no strike/lockout from the CBA states, “For the duration of this Agreement, the Union, its
agents, and its members agree, both individually and collectively, that they shall not authorize, cause, sanction, aid,
engage in or assist in any strike, boycott, slowdown of operations, or stoppage of work for any reason, including
honoring an unsanctioned picket line of another union, that has not been properly sanctioned by the appropriate
Central Labor Council nor shall they attempt to prevent access to any person to any job site.” The side letter of
understanding includes premium terms and conditions of employment.
36 Curiously, the presence of Quintanilla (who had also been terminated), does not appear to have created a
problem for Respondent.
JD(SF)–41–17
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F. La Serna’s April 23 Termination
After La Serna’s suspension, Periolat conducted an investigation of the allegations made
against La Serna. She determined that La Serna had returned to the South San Francisco facility
after his suspension, despite being informed by Respondent that he could not return to the 5
property; Respondent obtained several statements from Kahn and employees, who stated
generally that they observed La Serna on the property since his suspension (R. Exh. 2). She also
determined that La Serna’s conduct toward Trinidad during Quintanilla’s suspension meeting
was “clearly egregious and in violation of SBM’s conduct policy” where she found that La Serna
had threatened Trinidad with job loss and intimidated her physically (R. Exh. 2). Periolat also 10
determined that La Serna had “abuse[d] his position” as shop steward and engaged in malicious
gossip because four witnesses felt that La Serna attempted to intimidate and coerce them (R.
Exh. 2). Periolat noted that La Serna’s violation of the directive not to enter Genentech property
during his suspension would be sufficient for termination (R. Exh. 2).37 She noted that his
conduct towards Trinidad was sufficient for termination as well (R. Exh. 2). 15
Regarding the allegation that La Serna “abuse[d]” his shop steward position, two leads
provided written statements claiming that they feel intimidated by La Serna because he
disparages Respondent and Trinidad, threatens Trinidad’s job, and threatens employees’ position
in the union (R. Exh. 2). Regarding the allegation that La Serna acted “egregious[ly]” towards 20
Trinidad on March 26, Trinidad claimed that La Serna has made her the victim of unprofessional
and disparaging remarks, trying to remove her from her job, and a victim during Quintanilla’s
suspension meeting (R. Exh. 2).
Thereafter, on April 21, La Serna and Pasaran met with Periolat at a hotel in South San 25
Francisco to discuss La Serna’s suspension (Tr. 187). During this investigatory meeting,
Periolat, who documented this meeting, interviewed La Serna as part of Respondent’s
investigation about his suspension (Tr. 187–189, 791; GC Exh. 206). La Serna denied pointing
his finger at Trinidad during the March 26 meeting but admitted he raised his voice (GC Exh.
206). Periolat also asked La Serna about his presence at the South San Francisco facility after 30
his suspension (Tr. 190–191). La Serna noted that on two occasions he received permission to
return to the South San Francisco facility, into the buildings, to collect his pay check from Brodie
and to attend an April 7 labor-management meeting (Tr. 190–191). La Serna explained that he
went to the facility on April 16 for the march (Tr. 191). Periolat told La Serna that he was not
permitted to go to the South San Francisco facility (Tr. 191). La Serna responded that this was 35
the first time he was told he could not return to the South San Francisco facility (Tr. 192).38

37 Although her investigation includes comments about a video surveillance of the April 16 march, at the
hearing, she testified she never received the video from Genentech but that the march was “visually confirmed” (Tr.
1297–1298).
38 Again, these instructions to La Serna were quite vague. Obviously, without his badge, La Serna could
not enter the buildings but the instructions not to come onto the property are vague in that they do not define which
areas he could and could not access. In addition, since his suspension, La Serna was permitted to enter
Respondent’s buildings with permission. Furthermore, in contrast, Alcantara reported that she saw Lopez “driving
around building 43 and 48” the day she was suspended, and immediately reported her observation to her supervisor
(GC Exh. 206). Lopez was not disciplined for driving around the campus after her suspension.
JD(SF)–41–17
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On April 22, Periolat requested approval from Emperador to terminate La Serna for
creating a hostile work environment for Trinidad, and for insubordination by returning to the
South San Francisco facility despite being directed not to do so (R. Exh. 2). Emperador wrote,
“approved” (R. Exh. 2).39 However, at the hearing, Periolat testified that she was the decision
maker and determined that La Serna should be terminated for “providing false information 5
during an investigation and unauthorized access to a client site” (Tr. 815, 1292).
On April 23, La Serna attended a telephone conference call with Periolat, Kahn, Castro,
Mutt (who acted as translator), and Pasaran, who acted as his representative (Tr. 193).40 Periolat
informed La Serna that she made the decision to terminate him for insubordination and 10
intimidation towards Trinidad and for going on Genentech’s property without authorization (Tr.
193–194, 815). Respondent sent La Serna a termination letter via mail (Tr. 194). The
termination letter states that La Serna was involuntarily terminated on April 23 for “Ch.2 EHB
pg.14–15/Insubordination–returning to the client site after suspension after directed not to re–
enter site. (2) CH.2 EHB pg. 16 Misconduct–Insubordination involving Sonia Trinidad” (GC 15
Exh. 35).41
G. The Union files a grievance regarding La Serna’s termination
On April 27, Pasaran filed a grievance regarding La Serna’s termination, stating that he 20
was terminated without cause (GC Exh. 51). On May 12, Pasaran and La Serna attended a
meeting to discuss the grievance with Kahn and Periolat (Tr. 196–197). Pasaran requested that
Respondent reduce La Serna’s discharge to a less severe form of discipline, and Periolat stated
that she would let the Union know her response at a later time (Tr. 205).
25
Thereafter, on June 17, three officials from the Union (including Pasaran) met with
Periolat and Kahn in the presence of a mediator (Tr. 206). Per the parties’ collective-bargaining
agreement, Pasaran brought these two other union officials as her panelist, and Periolat stated she
would only have Kahn (Tr. 208). The mediator indicated that the mediation could not continue
in such a manner, and that the matter would need to go to arbitration (Tr. 208).42 30
On November 11 and 14, after not hearing from Union representatives, La Serna sent an
email and letter to Solis asking her the status of his grievance and to include “union reasons” in
the grievance (GC Exh. 56(a) and (b)). La Serna received no response from Solis (Tr. 212). La
Serna spoke to Pasaran several times, and she stated that his arbitration was not scheduled yet 35
(Tr. 212). On January 15, 2016, based on its failure to prosecute his grievance, La Serna filed an
unfair labor practice charge against the Union (Tr. 213). On August 15, 2016, he sent another
letter to Solis (Tr. 213). On August 20, 2016, La Serna met with Union representative Pedro

39 Emperador did not testify at the hearing.
40 Castro also took notes during this meeting, and emailed them to Periolat after the meeting (R. Exh. 23).
These notes are consistent with the other witnesses’ accounts of the meeting.
41 Respondent’s position statement to the General Counsel uses slightly different terminology and chapter
references than found in La Serna’s termination notice (GC Exh. 405). I do not rely on Respondent’s position
statement as it is not probative in this instance. Rather, I rely on the termination documentation and Periolat’s
testimony.
42 Pasaran requested that the mediator hear from both parties, and then give her opinion as to La Serna’s
termination, which he provided (Tr. 208–209).
JD(SF)–41–17
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Malabet (Malabet). Based on La Serna’s unfair labor practice charge, the Union agreed to
arbitrate La Serna’s termination but the date for the arbitration could not be confirmed at that
time (Tr. 215–216).
VIII. RESPONDENT’S APRIL 9 TERMINATION OF QUINTANILLA5
After suspending Quintanilla on March 26, Periolat investigated her alleged falsification
(Tr. 792, 1250). Periolat obtained statements from various individuals including Cazarez, dated
March 27 (Jt. Exh. 23). Cazarez interviewed Quintanilla on March 11 when Quintanilla again
denied that the injury occurred on March 5 (Jt. Exh. 23). On April 7, the same day as the labor-10
management meeting, Silva and another manager also submit statements to Respondent
regarding Quintanilla’s workplace injury. Finally, Kahn also received a statement, dated April 8,
from employee, Jacob Kuruvilla (Kuruvilla), who witnessed Quintanilla’s injury (Tr. 942, 1011;
R. Exh. 113). Periolat reviewed relevant policy, handbooks, confirmation of acknowledgment,
and receipt of handbooks, emails with time stamps, the accident package, previous disciplinary 15
actions, Quintanilla’s prior incident reports, and statements from Quintanilla, Cazarez, and other
employees (Tr. 1251–1252; GC Exh. 403). Periolat compiled her findings in an investigatory
summary, in which she concluded, “All evidence is that the EE [Quintanilla] provided false and
misleading statements related to a workplace injury. Recommendation of termination” (R. Exh.
91; Tr. 1253–1254). Progressive discipline, she stated, would not apply due to the “seriousness 20
and egregiousness of the actions” as Quintanilla “lied” despite given chances to correct her lie
(Tr. 1255). Periolat testified that there were no comparable disciplinary actions (Tr. 1258).
On April 8, Periolat sent her investigatory summary to Trinidad, Kahn, and Emperador
(R. Exh. 91).43 Kahn agreed with Periolat to terminate Quintanilla as she had falsified 25
documentation, lied to management, and violated the zero tolerance policy (Tr. 946, 1085, 1254).
Kahn testified that Quintanilla’s falsification removed her discipline from progressive discipline
(Tr. 947).
Thereafter, on April 9, Respondent discharged Quintanilla (GC Exh. 6; Tr. 377–378). 30
Prieto, La Serna, and Olmos represented Quintanilla during the termination meeting, which was
also attended by Trinidad and Periolat (Tr. 376–377). Trinidad informed Quintanilla and her
representatives that, after the investigation completed, Respondent decided to terminate
Quintanilla (Tr. 377–378). Periolat was the decision maker (Tr. 815). The termination notice
stated, “Employee [Quintanilla] provided false and misleading information related to a 35
workplace injury” (GC Exh. 6).

43 The day prior, on April 7, Respondent and the Union met at the South San Francisco facility’s building
54 as the Union wanted to review the various disciplinary actions taken by Respondent as well as to discuss other
matters affecting employees (Tr. 161, 168–169, 571, 841). Present on behalf of Respondent was Periolat,
Emperador, and Kahn (Tr. 161, 841). Present on behalf of the Union were representatives Solis, Diaz, and
Arostegui, and shop stewards Fernandez, Prieto, Ruiz, Quintanilla, Ruby Olmos, and La Serna; these shop stewards
had been newly elected and this was the first labor-management meeting they attended (Tr. 161, 280, 841).
Quintanilla’s suspension was discussed during this meeting. Lopez, who was not a shop steward, was not permitted
to attend the meeting, and upon learning that she was outside building 54, Periolat told the Union attendees that
Lopez must leave the premises or she would call security (Tr. 164, 572, 840). Periolat did not give the same
warning to La Serna or Quintanilla.
JD(SF)–41–17
22
After her removal, on August 26, 2016, Quintanilla filed a complaint in state court
against Respondent alleging discrimination, retaliation, wrongful termination, and unfair
competition (Jt. Exh. 20). On October 13, 2016, Respondent deposed Quintanilla under oath in
her lawsuit (R. Exh. 125). In her deposition testimony, Quintanilla stated, “I supposedly had an
accident on March 5, and I got confused. I don’t know what went through my head, and I got 5
confused. I thought it was on the 6th that it happened” (R. Exh. 125). Quintanilla also admitted
that she told La Serna about her confusion of the date a few days before the October 13, 2016
deposition (R. Exh. 125). She also admitted that when her injury occurred she told La Serna that
she was confused about the date of her injury, and he told her “to remember, to remember” (R.
Exh. 125). She stated that La Serna never told her to tell Respondent a specific date (R. Exh. 10
125). Thereafter, on October 24, 2016, Quintanilla moved to have her case dismissed (Jt. Exh.
22).
Quintanilla did not testify at the hearing, and the parties stipulated:
15
1. Quintanilla willfully provided false information to SBM regarding the date of her
injury.
2. Quintanilla willfully provided false information to avoid lawful discipline issued
on March 13.
3. Quintanilla informed SBM of this false information prior to March 19.20
4. Quintanilla was given several opportunities to retract her submission of false
information in her suspension meeting, and she refused.
5. Quintanilla’s civil complaint is admitted into evidence. Quintanilla’s deposition
in her civil complaint lawsuit is admitted into evidence.
6. The March 27 letter of Cazarez is admitted into evidence. 25
(Tr. 669–671).
IX. RESPONDENT’S APRIL 1 SUSPENSION AND APRIL 23 TERMINATION OF LOPEZ
30
A. Lopez’ March 27 Conversation with Lead Alcantara
Lopez worked for Respondent from June 2011 to April 1 as a custodian, and worked at
the South San Francisco facility for 10 years (Tr. 500–501, 505–506, 621). Prior to her
termination, Lopez reported to Rodriguez, and her lead was Alcantara (Tr. 505, 507–508). 35
Lopez was also a member of the Union; as such, she attended meetings, helped distribute union
leaflets, and participated in elections (Tr. 509, 621).
Shortly after the March 24 meetings, on approximately March 27 (the day after the
Quintanilla meeting) Lopez and Alcantara spoke in the lobby of building 43 (Tr. 532, 953). 40
Lopez and Alcantara, however, disagree on how the conversation commenced and what was
said.
Lopez claims that Alcantara spoke to her first about a rumor that La Serna would be
suspended, while Alcantara claims that Lopez initiated the conversation about La Serna (Tr. 45
533–534, 953–954). During this meeting, Lopez testified that she stated, “If Jose La Serna got
JD(SF)–41–17
23
fired, then all the employees would make Genentech quake, that because we would make a lot of
noise and if we had to bring pots so that they would hear use, we would do it” (Tr. 534–535,
636).44 Lopez testified she also used the phrase, “The buildings were going to shake” (Tr. 636).
Lopez denied Periolat’s claim that she used the phrase “explode Genentech’s buildings when
speaking to employee-witnesses” (Tr. 535, 553). 5
In contrast, Alcantara testified that Lopez made much stronger statements such as “she
wouldn’t let anybody touch a hair on Jose La Serna’s head” and that “she was going to do
whatever was in her hands not to let that happen, that she was going to kick out SBM from
Genentech and that she had a lot of contacts that she could reach out to bomb the buildings” (Tr. 10
954). Alcantara told Lopez not to get involved in other people’s problems, that she did not like
to hear that type of rhetoric, and was leaving to go to another building (Tr. 954). In response,
Lopez showed her phone to Alcantara, telling her to remember the date and time since she had
contacts in Columbia (Tr. 954–955). The conversation lasted 15 minutes (Tr. 955).
15
After her conversation with Lopez, Alcantara spoke to her supervisor Rodriguez (Tr. 958;
R. Exh. 27). She told him that she was afraid of how Lopez had expressed herself and wanted to
provide a statement to Respondent (Tr. 958). A day or two later Alcantara documented her
conversation in a statement (Tr. 968; R. Exh. 27).45
20
Rodriguez then wrote his own statement, documenting conversations he had with Lopez
regarding weapons (R. Exh. 27). Specifically, Rodriguez provided three statements, and also in
an email on March 31, where he wrote, “I wanted to bring this conversation [regarding Lopez’
alleged comments that she had been trained to use an AK47] up to you guys since the behavior
of Luz is really aggressive, shows a lot of attitude” (R. Exh. 27). In one of these statements, 25
Rodriguez noted that Lopez “confessed” two weeks prior about her personal history in Columbia
which included alleged guerilla warfare (R. Exh. 27). Rodriguez provided Alcantara’s and his
statements to Periolat and other managers for Respondent.
With regard to Lopez’ alleged statements to Alcantara on March 27, I credit Alcantara’s 30
testimony rather than Lopez’s testimony. Alcantara testified that Lopez threatened to harm
Genentech property and employees if Respondent terminated La Serna. Although Alcantara’s
contemporaneous notes differ slightly from her hearing testimony, her testimony regarding the
tenor of Lopez’ comments remained the same. Moreover, after Alcantara approached Rodriguez
about Lopez’ comments, he then recalled recent various conversations and behavior by Lopez 35
that concerned him. Rodriguez provided detailed statements recounting several conversations
with Lopez about weapons. Although it is undisputed that neither Respondent nor Alcantara
reported Lopez’ statements to law enforcement, this failure to do so does not undermine my
finding that Lopez made comments to the effect that she would harm Genentech’s property and

44 Lopez explained that in her native Columbia the term “quaking” or “shaking” means to make so much
noise that the building would shake (Tr. 535).
45 Alcantara’s statement differs slightly from her hearing testimony. Alcantara states that Lopez mentioned
that La Serna was having problems with Trinidad, and Lopez said, “Listen up Betty, I Luz Dary Duque swear by the
only daughter I have that if someone touches Jose [La] Serna by a hair, I will make some calls to Columbia with
great contacts of mine and if you don’t finish I will kick it to SBM and command to bomb these buildings and you
will fall, I swear” (R Exh. 27).
JD(SF)–41–17
24
employees if La Serna was terminated as he had not yet even been suspended—her threat was
contingent on a certain outcome. After learning of Lopez’ comments, Periolat suspended her and
would not permit her to return to the South San Francisco facility without permission. In
addition, as set forth below, during the suspension and termination meetings, Lopez never
explained to Respondent what she is claimed at the hearing to have said–that she only intended 5
to make noise with pots and pans if La Serna was terminated by Respondent. Furthermore,
Lopez testified inconsistently regarding the subject of weapons. On direct examination, Lopez
stated that she spoke to Rodriguez about weapons but only in the context of soap operas; on
cross-examination, however, she denied speaking to him about weapons at all. Overall, Lopez’
testimony cannot be credited, and thus, I rely upon Alcantara’s testimony. 10
B. Respondent’s Suspension of Lopez
Once Periolat learned about Lopez’ alleged statements, she decided to suspend Lopez due
to the seriousness of the allegations, which was consistent with Respondent’s workplace violence15
policy (Tr. 1275–1276). Thus, on April 1, Periolat, along with Jedan and Castro, met with Lopez
who was represented by Ruiz; Perez acted as an interpreter (Tr. 542–543, 546, 835–836; GC
Exh. 11).46
Periolat announced that the meeting would cover the recent complaints Respondent had 20
received about Lopez (Tr. 543). Originally, Lopez and Ruiz understood that the scheduled
meeting was to discuss La Serna’s potential disciplinary action, as he had named Lopez as a
witness. Periolat changed the subject matter of the discussion due to the complaints Respondent
received; Periolat informed Lopez that she was suspended (Tr. 545–546). Unsurprisingly, Lopez
and Ruiz became upset (Tr. 837).25
After an argument about Lopez seeking to audio record the meeting and whether
Respondent was following proper procedures, Periolat told Lopez the details of the complaints.
Specifically, Periolat told her that she was accused of threatening to bring in weapons to the
South San Francisco facility to kill people, and blow up the buildings if La Serna were30
terminated (Tr. 554, 837). Lopez yelled, “So you’re accusing me of being a terrorist, of being a
criminal? You could have accused me of being a thief, that I could have stole [sic] something or
hit someone, but never that I’m a terrorist” (Tr. 553–554). Ruiz then stated, “Ma’am, just
because we’re Columbians doesn’t mean that we’re terrorists. Not all Columbians are terrorists”
and “I don’t think that someone who has been granted political asylum in this country is going to 35
be a terrorist, because to get political asylum they investigate everything about that person,
everything about their life” (Tr. 554–555). Lopez then asked for the name of the person who had

46 Castro took notes during the meeting, but she missed approximately 30 seconds of the meeting when she
went to get security (R. Exh. 33; Tr. 1186). Castro’s contemporary notes largely corroborate Lopez’ version of
events but her notes make no mention of Lopez and Ruiz’s allegation that Respondent asked her to sign a blank
sheet of paper (Tr. 546, 835–836, 840). Furthermore, Castro denied giving Lopez any form during this meeting
other than the notice of suspension (GC Exh. 11; Tr. 1171–1172). I credit Castro’s testimony as her testimony was
corroborated by her contemporaneous notes. I do not credit Lopez and Ruiz’s testimony. I find it unlikely that
Respondent would ask Lopez to sign an uncompleted form. The purpose of the meeting was to announce
Respondent’s decision to suspend Lopez, and Respondent has no reason to hide the reasons for the suspension.
Furthermore, on April 7, Perez also documented this meeting which is consistent with Castro’s summary (R. Exh.
27).
JD(SF)–41–17
25
accused her because she was going to the police (Tr. 555–556). Lopez continued to demand the
name of her accuser and told Periolat that she would be reporting all their names to the police as
this was an “atrocity” and a “crime” against her (Tr. 556). Periolat stated that she could not give
her the names of her accusers at that time (Tr. 556). Periolat also asked for Lopez’ badge but
Lopez refused to provide her badge to Respondent; she would only provide her badge to security 5
(Tr. 556–560, 655, 838, 840, 864). After security took her badge, Lopez left the South San
Francisco facility (Tr. 560).47 Respondent provided a suspension form to Lopez which stated,
“Investigation regarding bad verbal behavior and apparently threats of violence and supposed
damage to the client’s property” (GC Exh. 11).
10
C. Respondent’s Termination of Lopez

After Lopez’ suspension, Periolat investigated Lopez for suspected violation of
Respondent’s violence in the workplace conduct policy related to the statements attributed to her
(Tr. 1277). In this regard, Periolat interviewed employees, including Lopez, with the Union 15
attending most of the interviews (Tr. 1277). Also, on April 20, Periolat interviewed Lopez with
Pasaran acting as her representative at an offsite location; Mutt acted as a translator (Tr. 580–
583). Periolat presented “many” written declarations to Lopez, and asked for her responses (Tr.
583–584, 646, 1277–1278). Lopez claimed that she did not interact with Hernandez or
Barrientos often (Tr. 584–590). In response to Alcantara’s allegations, Lopez testified she 20
“completely lost it” during this interview and started crying; Lopez denied making the statements
she was accused of making (Tr. 588–589, 647, 1279–1280).48 In response to Rodriguez’s
multiple statements, Lopez admitted that she spoke to him about weapons, but only in the
context of soap operas about terrorism and drug trafficking from Columbia (Tr. 594–596).49 The
meeting lasted approximately 3 hours (Tr. 598–599). 25
Periolat’s findings were accumulated in an investigative file (R. Exh. 26 and 27). At the
conclusion of the investigation, Periolat recommended to Kahn that Lopez be terminated (Tr.

47 After this meeting Lopez went to the police station to complain (Tr. 563). Respondent never reported
Lopez’ threats to law enforcement (Tr. 565–566, 840).
48 On direct examination, Lopez testified in response to Alcantara’s declaration, “And at no point, never,
have I said anything about blowing anything up or killing anyone. I have not said anything like that. That I couldn't
believe that she was making such a serious accusation and that these people, including the company, would have to
give me evidence and respond to me in a court in front of a judge” (Tr. 589). Then, on cross-examination, Lopez
testified that she disagreed with Alcantara’s affidavit, and clarified that she said, “If Jose was fired, we would make
a march, we would make so much noise that the buildings were going to shake from the noise, because we wanted
Genentech to find out what was going on” (Tr. 647). But, Lopez never stated as such in her Board affidavit which
was taken under oath and closer in time to her suspension and discharge (Tr. 647–649). Lopez stated that she was
depressed after her termination, and did not want to talk or think which excused her omission (Tr. 649). Lopez also
claimed that Alcantara’s declaration along with other employees’ declarations was manipulated by Pasaran (Tr.
648). I do not find Lopez credible. Lopez’ testimony was filled with conjecture. Lopez never explained what she
actually said to Alcantara. Instead Lopez reacted to the accusation with a denial and her own accusation of being
called a “terrorist.”
49 Lopez testified that Rodriguez may have a reason to testify against her as he allegedly harassed her (Tr.
637–639). However, Lopez never filed a sexual harassment grievance/claim with a third-party agency or filed a
civil lawsuit (Tr. 640). On cross-examination, in contrast to her direct examination testimony, Lopez denied
speaking to Rodriguez about weapons, specifically about AK-47s (Tr. 594–596, 645). Rodriguez no longer works
for Respondent. I rely upon his statements only to the extent it shows how Alcantara’s complaint reached
Respondent. I rely primarily on the testimonies of Lopez and Alcantara.
JD(SF)–41–17
26
1280; GC Exh. 26). Kahn concurred, and Periolat decided to terminate Lopez (Tr. 815, 1280–
1281).
On April 23, Respondent, via conference call, informed Lopez, who was represented by
Pasaran, that she was being terminated (Tr. 599– 600, 602, 656). The termination form states, 5
“Ch.2 EHB Insubordination-Initially refusing to surrender badge/Ch.9 EHB Violence in the
workplace states “Threats or physical acts against an individual or property”/Ch.2 EHB Business
Ethics and Conduct-Dishonesty in an investigation” (GC Exh. 12, 210).
D. The Union files a grievance regarding Lopez’ termination10
The Union filed a grievance regarding Lopez’ termination, and on July 8, Pasaran and
Lopez met with Periolat, Kahn, and Castro at an adjustment board review per Art. XVII of the
CBA (Tr. 604–606, 1177, 1282–1283). Kahn testified that during this meeting, Lopez attempted
to clarify that bombing a building was a Columbian euphemism and argued that she was going to15
drop a “truth” or “information” bomb on Genentech and Respondent (Tr. 1035–1036). The
meeting ended with the adjuster informing Pasaran he would give his results in writing (Tr. 606).
However, on July 8, the Union and Respondent signed a document which indicated that no
agreement had been reached and that the matter was “deadlock[ed]” (GC Exh. 401). After not
hearing from Pasaran, Lopez sent an email to Solis on September 1 asking for an update (GC 20
Exh. 37(a) and (b); Tr. 608). Lopez never received a response to her email (Tr. 608–609). On
November 10, Lopez asked Solis to file a new grievance with Respondent for her termination
due to her union activities and slander (GC Exh. 38(a) and (b); Tr. 609–610). Again, Lopez did
not receive a response (Tr. 610).
25
X. RESPONDENT’S MAY 20 SUSPENSION AND JUNE 20 TERMINATION OF PRIETO
A. Prieto’s employment with Respondent and the May 12 incident
Prieto began working at Respondent’s South San Francisco facility as a custodian in 30
2008, and as a GMP tech from 2013 to May 20, 2015 (Tr. 358–359, 396, 430; Jt. Exh. 15). In
2015, during the weekdays, Prieto reported to lead Jose Lazo (Lazo), who reported to Brodie and
Sanchez (Tr. 364, 446). Lazo would assign daily tasks to the employees including Prieto (Tr.
447, 490–491). Prieto’s daily cleaning tasks varied from day to day during the weekdays (Tr.
360, 363). As a GMP tech, Prieto received training on good documentation practices in 201335
and 2014 (R. Exh. 50, 55, 56; Tr. 412–414, 1019–1020, 1111). Prieto also received training on
the “stop the job” policy which taught employees to inform their supervisors when they did not
feel comfortable or safe performing a task and to stop the task immediately (Tr. 421–422).
In certain GMP areas, GMP techs must sign cleaning logs (FN2003)50 indicating that 40
certain areas have been cleaned, and a pass through log (FN1989) indicating that cleaning
equipment brought into specific areas have been sanitized before entry into these rooms. Within
building 3, the cell culture (CC) lab (or inoculation suite), room 3218, is the most controlled area
(Tr. 1104). As such, before any employee enters room 3218 to clean, the employee must
document steps taken to clean and sanitize any equipment taken into the CC lab; this room has 45

50 FN stands for “foreign number” (Tr. 1028).
JD(SF)–41–17
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daily tasks so there should be an entry for every day (Tr. 1105). But the employee should also
include an entry for room 3219 as this is the room where the additional sanitization and gowning
must be performed before entering room 3218 (Tr. 1108).
On May 12, according to Prieto, when he arrived at work, Lazo asked him to perform the 5
task of buffing the “blue” room or media prep room in building 3, and Prieto replied that he did
not have knowledge of that work route (Tr. 392–393, 977).51 Prieto testified he had never
received training on buffing in the GMP areas (Tr. 411). Prieto testified that Lazo insisted that
he perform the work as he had no one else to perform the task, and assured Prieto he would show
him the work route (Tr. 393). Prieto testified that Lazo showed him the room, but never 10
mentioned to him that he should clean both of the laboratories (rooms 3218 and 3219) inside the
“blue” room (Tr. 393, 406, 459). Prieto cleaned the rooms on the work route as Lazo had shown
him, and went to sign the cleaning logs (Tr. 393–394). Prieto testified that Lazo showed him
which logs to sign and where specifically on the logs to sign (Tr. 394, 462). Prieto signed those
spaces on the log, not realizing that he was signing that he cleaned rooms which he had not done 15
(Tr. 394–395; R. Exh. 54).52
Directly contrary to Prieto’s testimony, Lazo testified that on May 12, he told Prieto that
the employee who performs buffing, Donald Manzanares (Manzanares), was on vacation and
asked Prieto if he could perform the work (Tr. 977). Prieto responded that he could, and Lazo 20
asked Prieto if he could show Prieto the area to clean but Prieto told him he had done the work 3
times prior and could do it (Tr. 977–978). Lazo testified that he would never send an employee
to an area to clean where he does not have knowledge (Tr. 978). Lazo denied telling Prieto to
sign the logbooks for rooms he did not clean on May 12 (Tr. 983–984).
25
A short while after May 12, Brodie testified that GMP tech Giovana Loli approached him
and showed him a discrepancy in the pass through log (FN1989) (Tr. 1103). Brodie then looked
at the pass through log again to see the date that the entry was missing (Tr. 1105). Reviewing
the pass through log, Brodie noticed the date 051215, or May 12, 2015, was missing (R. Exh. 83;
Tr. 1106–1107). Because Brodie could not tell from the pass through log who failed to enter in 30
the date, he looked at the cleaning log (FN2003) for the actual cleaning which occurred in the
area (Tr. 1106; R. Exh. 54). The cleaning log shows that Prieto initialed that he cleaned the CC
lab, but the pass through log did not have a correlating entry to show that the buffing equipment
was sterilized before being brought into rooms 3218 and 3219 which are within the CC lab (Tr.
1108). Based on his review of the logbooks, Brodie assumed that Prieto completed the cleaning 35
but had forgotten to sign the pass through log book, which is known as an omission (Tr. 1109).
Typically, a failure to complete the pass through log results in a verbal warning, and has not
resulted in an employee’s termination (Tr. 1016, 1108–1109).53

51 Buffing involves using a rotation machine to shine the floor (Tr. 411).
52 The log Prieto signed was a GMP document owned and managed by Genentech and used as an official
record for regulatory review (Tr. 1065). Restroom logs differ in that they are SBM owned documents which are
provided as a convenience to show its customer that the restroom has been serviced (Tr. 1065).
53 SOP, GSP 005 refers to documentation practices to fill out the logs (Tr. 1110).
JD(SF)–41–17
28
On May 19, Brodie and Sanchez met with Prieto and La Serna, as his union
representative, to present Prieto with a request for disciplinary action for alleged violation of an
SOP (GC Exh. 8; Tr. 1111).54 The request states:
On 051215 Adilio Prieto entered rooms 3218 & 3219 to perform Buffing activities. Per 5
SOP 200.847 All equipment must be cleaned and sanitized prior to entry of these rooms
and documented on FN 1989 [pass through log]. Adilio signed as performing cleaning
activity in these rooms on FN 2003 [cleaning log] but failed to document entry of
equipment on FN 1989 for cleaning that occurred on 051215. Discrepency [sic] 1028535
was initiated by GNE area owner for this ommission [sic]. This is also in violation of 10
SBM supporting clients right to opperate [sic] policy.
(GC Exh. 8). Brodie showed Prieto the two logbooks to provide Prieto an opportunity to explain
the error (Tr. 1112). Brodie asked Prieto if he had forgotten to sign the pass through log (Tr.
387). Prieto responded that he had not forgotten to sign the pass through log because he had 15
never cleaned the room (Tr. 1112). Brodie brought Prieto’s attention back to the cleaning log
which Prieto initialed, which stated that he had buffed the rooms (Tr. 1113). Prieto told Brodie
that Lazo had told him to sign the cleaning log (Tr. 388, 1113). Prieto stated that Lazo insisted
that he help him perform the work and Lazo would tell him which rooms were to be cleaned and
where to sign on the log (Tr. 388). Prieto further explained that Lazo told him to clean the “blue 20
room” but never told him that he needed to clean the laboratory rooms (rooms 3218 and 3219)
inside the blue room (Tr. 388, 417). Brodie then told Prieto that he needed to escalate the matter
to human resources to investigate, so Prieto should document his own version of events (Tr.
1113). 55
25
Prieto documented his version of events, and Brodie also documented the meeting via
email (Tr. 1114). Prieto wrote, “I, Adilio Prieto, they asked me to work doing buffing when they
encountered me about buffing the CC lab. There was a confusion that happened not
appropriately informing me of the area and how to work it” (R. Exh. 59(a) and (b); Tr. 1116).56
30
Due to their conversation with Prieto, Brodie and Sanchez went to Lazo to obtain his
version of events (Tr. 1119). Brodie informed Lazo that they would be escalating the matter to
human resources and asked him to write a statement (Tr. 1120). That day, Lazo created a
statement of his version of events (R. Exh. 60). In this statement, Lazo wrote:

54 Brodie was aware that Prieto was a shop steward, but unaware if Prieto participated in any marches or
signed any petitions (Tr. 1134–1135). I do not credit Brodie’s testimony. As Kahn was Respondent’s contact for
Genentech, it is more likely than not that Genentech shared the petition, which included Prieto’s signature, with
Kahn. Kahn, in turn, likely shared this information with Brodie. Khan also observed Prieto at the April 16 march,
which is information he likely shared with Brodie and other managers. It also appears that Prieto mistakenly named
La Serna as his representative, which is unlikely since La Serna had been terminated.
55 Sanchez, on May 20, documented this conversation (R. Exh. 46). Sanchez stated that Prieto told them
that Lazo told him not to go into the CC labs (R. Exh. 46). Sanchez did not testify at the hearing, but continues to
work for Respondent.
56 I rely on Brodie’s translation rather than the translation in the exhibit as that translation did not include
the term CC lab which is written in Prieto’s statement as “sisilaban.” Respondent’s counsel could not identify who
translated Prieto’s statement originally but admitted that Respondent provided the translated document to the
General Counsel.
JD(SF)–41–17
29
Yesterday, Adilio [Prieto] told me that they were questioning some rooms that
were signed off but not done. He told me that he did not go in to do them because
he did not have knowledge about the rooms that he didn’t do. I told him–okay. “I
said you didn’t go in. He said no because of the work he was doing, it was being 5
done, he was doing it quickly.” “So the work he was doing, he was doing it
quickly. I, Jose, remember that I told you.” “Jose, remember that I told you that I
didn’t go in. I said–“I told him you haven’t told me this at any point. I don't
remember, Adilio, what you’re saying, I said, Jose Lazo, at no point have I told
him not to do a job.”10
(Tr. 986). On May 28, Lazo wrote another statement again denying Prieto’s claims (R. Exh. 68a
and b).
B. Respondent’s Suspension of Prieto15
The following day, on May 20, Prieto, with Fernandez as his representative, received a
notice of suspension for “falsification of documentation on FN2008 on 051215” from Brodie and
Trinidad (GC Exh. 9; Tr. 390–391, 1125).57 The notice further stated that the final disciplinary
action would be determined after an investigation and/or review of his disciplinary file. During 20
this meeting, Prieto again explained that he had not been properly taught to perform the task to
which he was assigned, and that there had been miscommunication between Lazo and himself
(Tr. 392, 1125). Brodie and Trinidad informed Prieto that he had cleaned these rooms many
times in the past years, should not have been confused and that, by signing that he cleaned rooms
which he did not, had falsified documents, as his signature was a legally binding document 25
which is reviewed by the FDA (R. Exh. 65; Tr. 1127). Trinidad and Brodie took Prieto’s badge
and told him not to return to Genentech until he was called by Respondent (Tr. 1127). The
meeting lasted no more than 10 minutes (Tr. 392).58

C. Respondent’s termination of Prieto30
Thereafter, Periolat, with Trinidad’s assistance in collecting statements and providing
translations, investigated the matter and interviewed other GMP techs, and other employees who
had signed logbooks (Tr. 791–792, 1016, 1022–1023, 1259–1260; R. Exh. 70). Trinidad
questioned the GMP techs on whether they knew not to sign a logbook without completing the 35
task either by their own decision or being told by a lead to do so (R. Exh. 70). Trinidad sent her
notes with the questions and answers of these employees to Periolat (Tr. 1206).
Brodie also wrote an email to Kahn and Trinidad summarizing the incident (R. Exh. 63).
On May 20, Brodie wrote,
40

57 Brodie documented this meeting by sending an email to Trinidad and himself on May 26 (R. Exh. 65).
58 With La Serna’s assistance, Prieto prepared a detailed statement regarding the events of May 12 for the
Union (Tr. 474). Prieto could not recall if the statement at R. Exh. 69 was the same statement he prepared with La
Serna’s assistance. However, the statement, dated May 29, corroborates Prieto’s hearing testimony (R. Exh. 69(a)
and (b)).
JD(SF)–41–17
30
On 051915 it was discovered that Adilio Prieto was assigned to perform cleaning
activities (floor buffing) in Inoc suite 3218 &3219 for the date of 051215. His
task requires him to sign for cleaning activity on FN 2005 and as it is an Inoc
suite it is required to sign a material transfer log 1989 for any materials brought
into the room. Adilio signed for cleaning activities in both rooms on FN 2005 but 5
failed to sign the 1989 for the corresponding cleaning on 051215. As it was not
documented or verifiable a DMS was initiated by GNE area owner for the
omission of information.
[…]10
After explaining the situation to Adilio, he told us that the reason that he did not
sign the 1989 is not because he forgot but because he did not clean the rooms. He
was then asked why he signed for the rooms if he did not clean them. He
responded that he was shown the area of the FN he was to sign by Lead Jose 15
Lazo. It was explained to him that according to GMO GDP (Good
Documentation Practices) training he is not to sign for any room that he did not
clean.
He then stated that he is familiar with the rooms and has done mopping activities 20
in them various times and knows the room numbers and pass–through procedure
for the rooms in question. He stated however that he was not familiar with the
buffing route and that he thought he was not supposed to clean the inoc suit per
instructions from Jose Lazo.
25
(R. Exh. 63).
On May 29, Prieto submitted another statement to human resources (R. Exh. 69). In this
statement, Prieto noted that Lazo had told him that he needed to help perform buffing in the
controlled area because Lazo was behind on that work and the other employee who was in 30
charge of the task was not going to finish on time (R. Exh. 69). According to Prieto, he told
Lazo that he was not familiar with the work area, and Lazo said he would show him the area (R.
Exh. 69). Prieto agreed to help him but also told him there was too much work, and he would
not have time for signatures (R. Exh. 69). Prieto wrote that Lazo told him not to worry, and that
he would help him with the signatures (R. Exh. 69). Prieto provided further details, including 35
stating that he did not realize he needed to buff the two laboratories within the larger media prep
room (R. Exh. 69). Prieto further cast blame on Lazo, stating that Lazo had never checked on
him or told him that by signing for the media prep room cleaned that he was committing to have
buffed the two inner laboratories (R. Exh. 69).
40
On June 4, Periolat asked Brodie to review Prieto’s May 29 statement (Tr. 1121–1122).
Periolat wanted to know how many times Prieto cleaned the area at issue in the past, and also
asked, “Was it really the first time?” (R. Exh. 71). In response, Brodie noted that Prieto had
performed various tasks in the area before, was familiar with the building and the log sheets (R.
Exh. 71; Tr. 1123). Brodie also explained that Prieto may have never buffed those particular 45
rooms, but he has training in the area (R. Exh. 71; Tr. 1123). Brodie further explained that Lazo
JD(SF)–41–17
31
on May 11 noted that certain rooms in building 3 did not need to be buffed but rooms 3218 and
3219 were not marked out (R. Exh. 66 and 71). Brodie further stated that every employee is
responsible for the logbook entries, and that leads only assist and will not be held responsible for
an employees’ mistakes (R. Exh. 71). In addition, Brodie testified that the room numbers were
listed on the doors that Prieto worked (R. Exh. 71; Tr. 1123). 5
Periolat compiled an investigative file with the evidence gathered and prepared a
summary (R. Exh. 46). She concluded that Prieto violated the following policies: (1) violation
of any SBM policy, rule or safety regulation when falsifying Genentech’s logs; (2) dishonesty of
any kind, including, but not limited to, providing false, incomplete or misleading information 10
related to the GMP logs; (3) violation of GMP tech 2 job responsibilities including understanding
and following directions, consistently following all customer and SBM SOP’s and procedures,
and completing daily logs accurately and completely; and (4) violation of business practice or
policy (R. Exh. 46).59 Periolat, who also considered Prieto’s prior disciplinary record, decided to
terminate him for the violations (R. Exh. 46; Tr. 1264–1265).60 Periolat consulted Kahn for his 15
approval or disapproval while Brodie had no role in the decision to terminate (Tr. 815, 1023–
1024, 1129). These violations, listed in Periolat’s summary, were not all included in Prieto’s
termination notice.
On June 10, Respondent discharged Prieto for conduct violations described as “falsifying 20
documents; providing false or misleading information, violation of GMP Tech Job
Responsibilities, Violation of business practice or policy” (GC Exh. 10; Tr. 397–398). Per
Genentech’s rules, Respondent informed Genentech that those rooms had not been cleaned (R.
Exh. 79). This record is unclear as to whether Respondent or Genentech drafted the summary
which notes that the error by Prieto were due to human error and did not affect product-quality or 25
processing (R. Exh. 79).
As for the events of May 12, I fully credit the testimony of Lazo rather than Prieto’s
testimony as Lazo remained consistent in his version of events. I do credit Prieto for being
honest immediately when asked why he did not sign the logbooks. If Prieto clearly sought to
deceive Respondent in claiming to clean the rooms when he purposefully did not, then he would 30
not have admitted that he did not clean the rooms. But Prieto provided contrary reasons why he
did not clean the rooms. Prieto honestly and consistently testified that he was confused about

59 Respondent provided a comparator disciplinary action. In March 2013, Respondent terminated Veronica
Barajas (Barajas) for failure to follow proper SOP requirements and falsifying logbooks (R. Exh. 90). Barajas
claimed to clean a room and signed the logbook as such but then later admitted she had not cleaned the room (R.
Exh. 90). Brodie and Mendoza were involved in this matter. The General Counsel argued instead that a June 2015
incident involving Giovana Loli was comparable to Prieto’s violation. In June 2015 Mendoza issued Giovana Loli a
verbal warning for cleaning certain rooms but failing to sign the appropriate equipment pass through log which
violated good documentation practices and client’s right to operate (GC Exh. 116, 116(b)). Brodie explained that
Loli did not falsify documents, and actually performed the cleaning task unlike Prieto (Tr. 1140–1141). Respondent
notified Genentech of Giovana Loli’s error in failing to document the appropriate logs (R. Exh. 79). The General
Counsel also argued that Christina Ramirez (Ramirez) was only suspended in September 2016 when she signed a
log before completing her cleaning tasks (GC Exh. 127). Ramirez immediately acknowledged her error and
apologized.
60 Prieto received a warning on December 10, 2014 for failing to report an accident, and on October 3,
2014, he received a warning regarding safety equipment (R. Exh. 46). When reporting the October 3 incident, via
email to other managers including Kahn, Jedan, and Sanchez, Manager Kristen Sanchez noted, “This is a well
known shop steward” (R. Exh. 58).
JD(SF)–41–17
32
which rooms to clean but I cannot credit his testimony in full because the reasons for why he was
confused about the rooms did not remain consistent. Prieto testified that Lazo said he did not
have an employee to buff the floors in the CC lab, but in his May 29 statement, he admitted that
Lazo told him that the employee who was assigned to buff the room was behind on his work and
Prieto needed to complete the work. Prieto also claimed that Lazo told him not to clean the 5
rooms. Prieto admitted to receiving training in GMP, and had been a GMP tech for two years
but then claims that he not know how to perform the buffing task or at the very least, realize he
was signing that he cleaned an area when he did not. The rooms were clearly numbered and the
logbook was not marked out as not needing to be cleaned. In total, Prieto’s version of events
cannot be completely credited while Lazo’s version of events is totally credited. 10
DISCUSSION AND ANALYSIS
A. Procedural Issue: Deferral Argument
15
Respondent argues that La Serna and Lopez’ allegations should be deferred to arbitration
as the Region initially decided to defer their cases (R. Br. at 54–59).61 The General Counsel
argues that deferral of La Serna and Lopez’ allegation is not appropriate for policy reasons (GC
Br. at 94–104). While I fully understand Respondent’s obvious frustration with the Region’s
changing position, I agree with the General Counsel that deferral is not appropriate here based on 20
the totality of the circumstances.
As background, initially, on October 30, the Regional Director for Region 20 deferred La
Serna’s suspension and termination for serving as shop steward and in retaliation for his union
activities to the parties’ CBA (Jt. Exh. 1, 16A). The Union never contacted La Serna to schedule 25
his arbitration despite his many inquiries. Thus, on February 10, 2016, the Regional Director
revoked his decision to defer to the parties’ CBA as the “underlying grievance is not being
processed through the grievance/arbitration procedure” (Jt. Exh. 1, 16B). But then in May 2016,
related charges against the Union were dismissed, allowing the Union five months to proceed to
arbitration (Jt. Exh. 1, 7, 8, 12, 13). In August 2016, the Union finally responded to La Serna’s 30
inquiry regarding arbitration, but the arbitration could not be scheduled for some time.
Similarly, in October, the Region deferred Lopez’ allegations to the CBA (Jt. Exh. 19A).
The Union never contacted Lopez to schedule the arbitration. Thus, on April 13, 2016, the
Regional Director revoked his decision to defer to the parties’ CBA (Jt. Exh. 19B). But in May 35
2016, related charges against the Union were dismissed, allowing the Union five months to
proceed to arbitration (Jt. Exh. 1, 13). By the close of this hearing, Respondent received
arbitration requests from the Union concerning Lopez and La Serna which were scheduled for
April and May 2017, respectively (Tr. 1320–1321).
40
The Board has considerable discretion in determining whether to defer to the arbitration
process. King Soopers, Inc., 364 NLRB No. 93 (2016); Cooper Tire & Rubber Co., 363 NLRB

61 According to Respondent, deferral of Quintanilla and Prieto’s allegations is not at issue in this
proceeding (R. Br. at 54, fn. 15). In July and December 2015, the Union declined to continue Quintanilla and
Prieto’s cases to arbitration, and the Regional Director revoked deferral of their allegations (GC Exh. 408, 409).
Thus, Respondent does not appear to argue that Quintanilla and Prieto’s cases should be deferred to arbitration.
JD(SF)–41–17
33
No. 194, slip op. at 6 (2016); Collyer Insulated Wire, 192 NLRB 837 (1971); United
Technologies Corp., 268 NLRB 557 (1984). The Board has articulated that deferral of an unfair
labor practice charge to the parties’ grievance procedure under the collective-bargaining
agreement is appropriate when numerous factors are present. These factors include: if the
dispute arose within the confines of a long and productive collective-bargaining relationship; if 5
there is no claim of employer animosity to employees’ exercise of protected rights; if the parties’
collective-bargaining agreement provides for arbitration of a very broad range of disputes; if the
arbitration clause clearly encompasses the dispute at issue; if the employer asserts its willingness
to utilize arbitration to resolve the dispute; and if the dispute is eminently well suited to
resolution by arbitration. United Technologies Corp., supra at 558. Furthermore, the burden of 10
proof lies with the party asserting deferral which in this instance is Respondent. See Doctors’
Hospital of Michigan, 362 NLRB No. 149, slip op. at 13 (2015).
Although the parties have a long and productive collective-bargaining history,
Respondent has had animosity towards the employees’ exercise of their protected rights. For 15
example, Respondent strongly opposed any meetings or marches by the employees and made its
position known via Trinidad’s letter to all employees. Moreover, Respondent clearly did not
appreciate La Serna’s strong advocacy during grievance meetings. In addition, this case presents
a factual scenario where the Union failed to represent its members adequately. Thus, the
discriminatees in this matter were in a state of limbo. Although they are shop stewards, they 20
could not take their cases to arbitration without the Union representatives’ cooperation. And
without the Union representatives’ cooperation to take these matters to arbitration, Respondent
could not proceed to arbitration either. The Union’s failure to represent these employees also
precedes La Serna and Lopez’ discipline as they did not respond to numerous requests by the
shop stewards for assistance in addressing Respondent’s alleged unfair actions. Throughout 25
2015, the shop stewards sought the Union representatives’ assistance, to no avail. Thus, deferral
is inappropriate.
B. Witness Credibility
30
The critical findings of fact in this matter may only be resolved with credibility
determinations. A credibility determination may rely on a variety of factors, including the
context of the witness’ testimony, the witness’ demeanor, and the weight of the respective
evidence, established or admitted facts, inherent probabilities and reasonable inferences that may
be drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 305 35
(2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group,
321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings need
not be all-or-nothing propositions–indeed, nothing is more common in all kinds of judicial
decisions than to believe some, but not all, of a witness’ testimony. Daikichi Sushi, supra at 622.
In addition to my specific credibility findings set forth above, I will provide my overall 40
impression of key witness’ testimony.
As for the General Counsel’s witnesses, I found La Serna to be a credible witness. La
Serna provided extensive details regarding the experiences of the shop stewards and their
interactions with Respondent and the Union. La Serna’s testimony vividly explained the conflict 45
the shop stewards had not only with Respondent but with its own Union representatives. La
JD(SF)–41–17
34
Serna convincingly testified about the increasingly tense relationship between Trinidad and
himself. La Serna, in unrebutted testimony, testified about an incident where Trinidad ostensibly
threatened with him with discipline for allegedly spreading false rumors. La Serna’s credible
background testimony set up the incident of March 26 which is the key event leading to his
termination. Although I do not credit La Serna’s testimony for the start of the meeting, as I find 5
it more likely than not that Trinidad informed Quintanilla and her representatives the reason for
her suspension, La Serna credibly testified that the meeting became heated and voice tones
escalated. Certainly, as Quintanilla’s shop steward, La Serna acted in an advocacy role, arguing
on her behalf. Thereafter, La Serna left the conference room. La Serna testified without
hesitation, remained calm, appeared forthright and credibly captured the events as they took 10
place. In addition, on another key point, as explained above, La Serna testified reasonably
regarding his allowance to return to the South San Francisco facility. Certainly, without his
badge he could not enter the buildings, but Respondent did not clearly inform him which areas
he could and could not return to on the property, including the public areas, during his
suspension. 15
As for Prieto, while he testified credibly regarding the details of the start of Quintanilla’s
March 26 meeting, he failed to testify completely credibly with regard to his own incident.
Prieto seemed quite sincere in his testimony but frankly could not recall many details which
undermined his credibility. At one point he could not recall whether he had training on good 20
documentation practices. Also his reasons for why he did not clean the two rooms for which he
signed in the logbooks waffled. He testified that he did not know that he needed to buff the
floors of the two rooms, but also claimed to not know how to buff these floors. GMP techs are
only given access to the buildings where they have been trained to clean so it seems more likely
than not that he knew how to buff the floors of those rooms. In addition, Respondent provides 25
extensive training which Prieto had taken. During the investigation, at the first meeting with
Brodie, Prieto initially blamed Lazo and stated that Lazo told him where to sign on the logbooks
and never told him to clean the rooms. But a day later, Prieto stated he did not know how to buff
the rooms. Thus, as his version of events changed and because he could not recall key details, I
could not rely on his testimony regarding the May 19 incident. 30
Lopez provided generally incredible testimony which was at times contradictory and
confusing. Many times during her testimony, she became upset which is to be expected.
However, during cross-examination, when confronted again with the alleged statements she
made, Lopez became visibly angry, slamming the witness stand with the palm of her hand. In 35
addition, during the suspension meeting, Lopez never clarified to Periolat what she claimed to
have said or explained how her statements could have been misconstrued by Alcantara. If she
had truly only used the phrase “shake the buildings,” then one would expect Lopez to have
explained this idiomatic expression, especially when hearing the accusations made against her,
immediately when confronted. She also likely would have clarified her comments after 40
Alcantara told her she did not like to hear such rhetoric. Overall, Lopez did not appear
believable in her version of events. Similarly, I cannot credit Ruiz’s testimony as to key
moments during Lopez’ suspension meeting because even though she is a current employee
testifying against her own pecuniary interest, Ruiz also testified that Respondent asked Lopez to
sign a blank form during her suspension meeting. As explained previously, such a scenario is 45
highly unlikely as it makes little sense for Respondent to suspend Lopez without sharing with her
JD(SF)–41–17
35
the reasons. Thus, Ruiz’s testimony was not corroborated by a credited witness, and is not
reliable.
As for Respondent’s witnesses, I found Periolat, Kahn, and Brodie to be witnesses with
mixed credibility. They testified in a straight-forward manner with sufficient detail and little 5
hesitation. However, Respondent’s investigations of La Serna, Quintanilla and Prieto, although
detailed and extensive, focused on irrelevant information or relied upon previously obtained
evidence. Also, on the issue of knowledge of union and protected activity, Periolat, Kahn and
Brodie appeared untruthful. For example, Kahn, on direct examination, appearing nervous,
claimed that he did not know if Quintanilla was a shop steward or even running for Union office, 10
when he suspended her. On cross-examination, though, he admitted to knowing that Quintanilla
was running for elected office. Thus, on this point, Kahn is not credible. Moreover, at one point
Periolat denied knowing who was involved in the marches and who was a shop steward but I
reject such testimony as it is clear from the record that Respondent knew who was an active
union adherent and who supported the union and engaged in protected concerted activity. 15
Several emails among Respondent’s management officials show clearly that they knew of La
Serna, Prieto, and Quintanilla’s union activity.
However, I found Alcantara, Lazo, and Castro to be generally credible witnesses. I
particularly found Alcantara to be a credible witness. Although her testimony differed slightly 20
from her investigatory statement, the tenor of Lopez’ comments was clear to her. It also seems
realistic that Alcantara did not immediately fear for anyone’s safety as Lopez continually
commented what she would do “if” La Serna were terminated. Alcantara then appropriately
reported Lopez’ statements to her supervisor. Again, it is reasonable that Respondent did not
call law enforcement as Lopez’ threats were not imminent–La Serna had not yet been suspended 25
or terminated. Lazo’s testimony is credited as set forth above, and Castro seemed genuine in her
testimony and her contemporaneous notes corroborated her testimony.
Among Respondent’s witnesses, I did not find Trinidad to be a reliable, credible witness.
She testified in a self-serving, hyperbolic manner, and her testimony oozed with the impression 30
that she sought to remove La Serna from the workplace, especially since La Serna actively
sought to remove her from the worksite with the grievance. Trinidad wrote the day after her
meeting with La Serna that he acted in an “aggressive” manner and sought to “intimidate” her
into not following policy. However, Trinidad’s actions later that day belie her testimony.
Trinidad did not call security after La Serna’s alleged intimidation but instead met with him 35
approximately 6 hours later when he represented Vargas in another potential disciplinary action.
She also met with him a few days later when he represented another employee. Thus, Trinidad’s
testimony that La Serna acted in a manner that was threatening is simply not believable
C. Respondent Violated Section 8(a)(1) and (3) of the Act when Suspending and 40
Terminating La Serna
The General Counsel alleges that Respondent violated Section 8(a)(1) and (3) of the Act
when it suspended and terminated La Serna on March 30, and April 23, respectively (GC Br. at
41–65). In support of its position, the General Counsel offers numerous theories of 45
discrimination. Respondent, on the other hand, argues that it lawfully suspended and terminated
JD(SF)–41–17
36
La Serna (R. Br. at 79–103). Specifically, Respondent argues that La Serna’s March 26 conduct
during Quintanilla’s disciplinary meeting lost the protection of the Act, and that his termination
was lawful under a mixed-motive theory.
The appropriate analysis for La Serna’s suspension and termination is found in Burnup & 5
Sims, 379 U.S. 21, 23–24 (1964). If the very conduct for which an employee is discharged is the
employee’s protected activity, the employer’s motivation is not at issue. Phoenix Transit System,
337 NLRB 510 (2002), enfd. mem 63 Fed.Appx. 524 (D.C. Cir. 2003). Furthermore, when an
employee is disciplined for conduct that is part of the res gestae of protected concerted activities,
“the pertinent question is whether the conduct is sufficiently egregious to remove it from the 10
protection of the Act.” Stanford NY, LLC, 344 NLRB 558 (2005); Aluminum Co. of America, 338
NLRB 20 (2002).
The credible evidence indicates that La Serna engaged in protected, concerted activity
when he represented Quintanilla during her suspension meeting. I find that La Serna also 15
engaged in protected concerted activity when he participated in the April 16 march while
suspended. The question then presented is whether La Serna’s protected concerted activity lost
the protection of the Act during the March 26 meeting as well as the April 16 march.
On March 30, Respondent suspended La Serna for violating the employee handbook 20
rules regarding respectful communication with other employees, insubordination, harassment
and intimidation, and violence in the workplace for his conduct during the March 26 Quintanilla
disciplinary meeting. Respondent also noted that it planned to investigate La Serna for
complaints from female employees about his harassing and intimidating behavior which center
on his role as a shop steward (see R. Exh. 2; GC Exh. 208, 209).62 The Board distinguishes 25
between true insubordination and behavior that is only disrespectful, rude, and defiant. Goya
Foods, Inc., 356 NLRB 476, 478 (2011), citing Severance Tool Industries, 301 NLRB 1166,
1170 (1991), enfd. mem 953 F.2d 1384 (6th Cir. 1992).
Where, as here, the conduct arises from protected activity, the Board does not consider 30
such conduct as a separate and independent basis for discipline. See Tampa Tribune, 351 NLRB
1324, 1326 fn. 14 (2007), enf. denied on other grounds sub nom. Media General Operations,
Inc., v. NLRB, 560 F.3d 181 (4th Cir. 2009). However, the “fact that an activity is concerted . . .
does not necessarily mean that an employee can engage in the activity with impunity.” NLRB v.
City Disposal Systems, Inc., 465 U.S. 822, 837 (1984). “[T]here is a point when even activity 35
ordinarily protected by Section 7 of the Act is conducted in such a manner that it becomes

62 Respondent did not address this suspension reason in its brief. Presumably, Respondent omitted the
argument as the crux of its suspension of La Serna was his conduct during the March 26 meeting with Trinidad.
However, I also find that Respondent violated the Act by suspending La Serna for his alleged harassment of
Barrientos and Hernandez. Both Barrientos and Hernandez complained about La Serna’s alleged comments during
the March 24 shop steward-led meeting. They complained that they felt harassed when La Serna mentioned the
leads role in Respondent’s discipline of employees. They also complained that they did not appreciate La Serna
speaking negatively about Respondent and Trinidad. Applying Burnup & Sims, 256 NLRB 965 (1981), Respondent
violated Section 8(a)(1) and (3) for suspending La Serna for disciplining him for his protected concerted activity.
Moreover, Respondent presented no evidence or argument that La Serna’s comments during the March 24 meeting
lost the protection of the Act especially as the meeting was an employee–only meeting.
JD(SF)–41–17
37
deprived of protection that it otherwise would enjoy.” Indian Hills Care Center, 321 NLRB 144,
151 (1996).
An employees’ “right to engage in concerted activity permits some leeway for impulsive
behavior, which must be balanced against the employer’s right to maintain order and respect. 5
Where the conduct occurs in the course of protected activity, the protection is not lost unless the
impropriety is egregious.” Coors Container Co., 238 NLRB 1312, 1320 (1978), enfd. 628 F.2d
1283 (10th Cir. 1980). In order for an employee engaged in such activity to forfeit his Section 7
protection his misconduct must be so “flagrant, violent, or extreme” as to render him unfit for
further service. United Cable Television Corp., 299 NLRB 138 (1990), quoting Dreis & Krump 10
Mfg., 221 NLRB 309, 315 (1975), enfd. 544 F.2d 320 (7th Cir. 1976). The Board will not find
that an employee’s “disrespectful, rude, and defiant demeanor and the use of a vulgar word”
loses the protected of the Act while engaged in concerted activity despite the employer’s
characterization of the employee’s conduct as “insubordinate, belligerent, and threatening.”
Severance Tool Industries, 301 NLRB at 1170 (1991). 15
In addition, the Board has commented that “some latitude must be given to participants in
these incidents. Indeed, although we might wish it otherwise, it is unrealistic to believe that the
principals involved in a heated exchange can check their emotions at the drop of a hat.” United
States Postal Service, 251 NLRB 252, 252 (1980). Union representatives are considered to stand 20
upon equal footing with management with regard to resolving labor disputes. Id. However,
although union stewards enjoy protections under the Act when acting in a representational
capacity and are permitted some leeway for impulsive behavior when engaged in protected
activity, that leeway is managed against “an employer’s right to maintain order and respect.”
Tampa Tribune, 351 NLRB 1324, 1325–1326 (2007). Thus, when an employee engages in 25
abusive or indefensible misconduct during activity that is otherwise protected, the employee
loses the Act’s protection. DaimlerChrysler Corp., 344 NLRB 1324, 1329 (2005). This
standard for losing the Act’s protection is set high such that the conduct must be egregious or
offensive. Consolidated Diesel, 332 NLRB 1019, 1020 (2000), enfd. 263 F.3d 345 (4th Cir.
2001). 30
To determine whether an employee who is otherwise engaged in protected activity loses
the protection of the Act due to opprobrious conduct, the Board considers the following factors
which must be carefully balanced: (1) the place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any 35
way, provoked by an employer’s unfair labor practice. Atlantic Steel, 245 NLRB 814, 816
(1979). Contrary to Respondent’s contention that La Serna’s behavior lost the protection of the
Act, I find that the Atlantic Steel factors weigh in favor of La Serna not forfeiting protection of
the Act.
The first factor, the place of the discussion, ultimately favors protection in the 40
circumstances of this case. On March 26, the meeting to discuss Quintanilla’s suspension
occurred in a conference room. There is no evidence that anyone else heard their discussion, and
their discussion remained confined to the conference room interior. Furthermore, Respondent
admits that the meeting occurred in a private conference room (R. Br. at 81). However,
Cazarez’s statement indicated that La Serna left the conference room “yelling” and “screaming” 45
(GC Exh. 406). But as stated previously, I give little weight to Cazarez’s statement as he did not
JD(SF)–41–17
38
testify at the hearing. Even if La Serna’s yelling and screaming was heard by other employees,
I do not find that he would lose protection of the Act as the yelling and screaming was brief. See
Goya Foods of Florida, 347 NLRB 1118 (2006), enfd. 525 F.3d 1117 (11th Cir. 2008) (Board
upheld administrative law judge decision finding that less than one minute of loud shouting by
union leaders in a grocery store was not misconduct so egregious to lose the protection of the 5
Act); Noble Metal Processing, Inc., 346 NLRB 795, 800 (2006) (place of discussion, employee
meeting away from employees’ work area, weighs in favor of protection as no evidence of
disruption to the work processes); Stanford Hotel, 344 NLRB 558 (2005) (workplace outburst
occurred away from normal working area in a closed door meeting where no other employees
present, and management’s authority not weakened). In sum, I find this factor weighs in favor of 10
protection for La Serna’s conduct on March 26.

The second factor, the subject matter of the discussion, favors protection. The purpose of
the March 26 meeting was for Respondent to present Quintanilla with its decision to suspend her.
La Serna acted as Quintanilla’s representative and advocated on her behalf, disagreeing with 15
Respondent’s decision. The subject of the meeting clearly concerned the parties’ collective
bargaining agreement which is protected under the Act. See Crown Central Petroleum Corp.,
177 NLRB 322 (1969), enfd. 430 F.2d 724 (5th Cir. 1970) (during a grievance meeting, the
veracity of management was at the primary issue and as such frank and not always
complimentary views must be expected and permitted), citing Bettcher Manufacturing Corp., 76 20
NLRB 526, 527 (1948). In addition, Respondent admits that the subject of the meeting
concerned discipline (R. Br. at 81). Overall, the nature of the subject matter weighs in favor of
protection of La Serna’s March 26 conduct.

The third factor, the nature of the outburst, favors protection as well. The credited 25
evidence shows that during the March 26 meeting, after Trinidad announced Quintanilla’s
suspension for falsification, La Serna told Trinidad that the suspension was unfair and the
suspension was an abuse. The meeting then quickly devolved with Trinidad becoming insulted
when La Serna accused Respondent of “abuse” and of looking for any reason to punish
employees. Prieto even left the meeting to bring Diaz into the meeting as it was becoming 30
“ugly.” After Diaz entered the room and asked questions, a dispute ensued where all the
participants stood up and raised their voices. La Serna told Trinidad that she was looking for any
reason to punish employees and that she was looking for the employees to have her removed
from the South San Francisco site. Trinidad remarked, “Well before I leave, you will leave.”
Diaz then asked La Serna and Quintanilla to leave the meeting.35
La Serna never used intemperate language, profanity, or threats of violence but admitted
to raising his voice. “The Board has repeatedly held that merely speaking loudly or raising one’s
voice in the course of protected activity generally does not warrant a forfeiture of the Act’s
protection.” Crowne Plaza LaGuardia, 357 NLRB 1097, 1101; see Goya Foods, 356 NLRB 476, 40
478; Beverly Health & Rehabilitation Services, 346 NLRB 1319, 1323 (nature of the outburst
weighed in favor of protection whether employee told another employee to “mind [her] f–king
business” during grievance discussion); Prescott Industrial Products Co., 205 NLRB 51, 51–52
(1973). In addition, the Board uses an objective standard, rather than a subjective standard, to
determine whether the conduct in question is threatening. Plaza Auto Center, Inc., 360 NLRB 45
No. 117, slip op. at 5 (2014). La Serna’s conduct on March 26 did not forfeit the protection of
JD(SF)–41–17
39
the Act. His conduct came nowhere close to the conduct the Board has found to lose the Act’s
protection. See Crowne Plaza LaGuardia, supra (employees lose protection of the Act when
attempting to restrain a manager). The Board has generally found that an employee’s behavior
loses the protection of the Act when engaged in egregious behavior, not the strong willed,
advocacy behavior displayed by La Serna. Compare, e.g., Waste Management of Arizona, 345 5
NLRB 1339 (2005) (employee used profanity repeatedly and loudly before coworkers and other
witnesses, refused to move the discussion to a private location, threatened the supervisor and
refused to follow orders, losing protection of the Act); Starbucks Coffee Co., 354 NLRB 876
(2009) (employee participated with group of people following employer’s regional vice president
at night after a union rally, shouting threats, taunts and profane comments at him, losing 10
protection of the Act), adopted in 355 NLRB 636 (2010) enf. denied in part, and remanded on
other grounds 679 F.3d 70 (2d Cir. 2012) decision on remand Starbucks Coffee Co., 360 NLRB
No. 134 (2014).
In sharp contrast to La Serna’s credited testimony, Trinidad claimed that La Serna 15
slammed his hand on the table, pushed back his chair which hit the wall, stood up and started
walking towards Trinidad, yelling he would get rid of her. Trinidad then claimed that she was in
a corner of the conference room and shouted an expletive. Diaz then came between them and
pushed La Serna out the door and Trinidad slammed the door closed. As explained extensively
in the findings of fact, I do not credit Trinidad’s testimony, but even if accepting Trinidad’s 20
version of events, La Serna’s conduct still would not lose protection of the Act. The context of
events is extremely important to keep in mind. Prior to the meeting, the shop stewards including
La Serna had been actively complaining about Respondent, and particularly Trinidad’s discipline
of employees. The shop stewards even filed a grievance seeking her removal. La Serna’s
statement that he was going to get rid of her should be interpreted in such context, not that he 25
intended to physically harm her. In fact, Trinidad knew that La Serna would not physically harm
her since she attended a meeting later that evening, without the presence of anyone else, to
discuss another employee’s discipline. Trinidad’s complaint, which came a day later, claiming
to fear for her safety and worry about her job is simply unbelievable. La Serna certainly has no
supervisory role over Trinidad to be able to direct her removal; he can only proceed through the 30
parties’ CBA to request such a change. In Kiewitt Power Constructors Co., 355 NLRB 708, 710
(2010), enfd. 652 F.3d 22 (D.C. Cir. 2011), an employee did not lose protection of the Act
despite angrily telling his supervisor that things could get “ugly” and he “better bring [his]
boxing gloves.”
35
Respondent cites a few cases in support of its position that La Serna’s conduct under this
Atlantic Steel factor loses the protection of the Act. None of the cases cited supports
Respondent’s argument. In Coca Cola Puerto Rico Bottlers, 362 NLRB No. 125 (2015), the
Board determined that a steward did not lose the Act’s protection when he spoke to a supervisor,
referring to a past event, as he did not make the statement in the context of ongoing violence and 40
did not threaten future violence. Respondent argues that La Serna’s threat to “get rid of”
Trinidad was aggressive in that he would end her employment or physically harm her. I do not
agree with Respondent. Again, the standard is an objective standard. Under the totality of the
circumstances, La Serna clearly was referring to the grievance the Union filed seeking to remove
her from her job which is the only avenue La Serna could possibly have to “end her 45
employment.”
JD(SF)–41–17
40
Respondent also cites to Public Service Co. of New Mexico, 364 NLRB No. 86 (2016),
where the Board found that a union steward lost the protection of the Act during an employee-
management training meeting when he intentionally shut down the meeting by inserting his own
demands, not allowing others to ask questions, refused to leave the meeting and after leaving and 5
returning, demanded the meeting end and the employees leave. Again, that decision is
distinguishable. In contrast, here La Serna did not end the meeting but instead left after Diaz
asked him to leave. Moreover, the meeting was only to present Quintanilla with her suspension
notice and was not an investigatory meeting or any other fact–gathering/information sharing
meeting. Thus, La Serna’s conduct on March 26 weighs in favor of protection under the Act.10

With regard to the fourth factor, provocation by employer’s unfair labor practice, I do not
find that this factor weighs in favor of or against finding La Serna’s conduct unlawful. Initially,
Trinidad did nothing to provoke La Serna. She set forth the reason for Quintanilla’s suspension,
which is not alleged as an unfair labor practice in this complaint, which caused La Serna to react 15
negatively as his advocacy role expects. Trinidad then reacted to La Serna’s comments of the
suspension being unfair and his belief that she was trying to find anyway to punish employees
which would cause them to try to remove her. Trinidad became defensive, and told La Serna
that he would be gone from the workplace before her.
20
In sum, I find that La Serna’s conduct on March 26 was not so opprobrious as to warrant
the loss of the Act’s protection. Thus, because his actions were protected on March 26,
Respondent violated Section 8(a)(3) and (1) of the Act when it suspended La Serna.
Now turning to Respondent’s termination of La Serna, Respondent terminated La Serna 25
on April 23 for insubordination when he returned to Genentech’s South San Francisco site after
being directed not to do so when he was suspended and for insubordination for his conduct
toward Trinidad. As set forth above, La Serna’s protected conduct towards Trinidad did not lose
the protection of the Act, and thus, his termination for such conduct also violates the Act. See
Spartan Plastics, 269 NLRB 546, 552 (1984) (finding no defense for employer to recite a wrong 30
by the discriminatee in responding to the action of the employer which itself constituted a
violation of law”).
Periolat, the decision maker, testified that even the insubordination violation for returning
to the South San Francisco site after being directed not to do so, would have also resulted in 35
termination. La Serna engaged in protected concerted activity when he participated in the April
16 march. There is no evidence that La Serna engaged in any conduct during this march that
would have lost him the protection of the Act. Moreover, the very act of participating in the
march is why Respondent disciplined him, not for any conduct during the march. I find that
Respondent acted in a determined manner to terminate La Serna, and found any possible 40
infraction to “pile on” its termination decision. Thus, even terminating La Serna for his
participation in the April 16 march violates the Act. Under Burnup & Sims, Respondent’s
termination of La Serna violates Section 8(a)(1) and (3) of the Act.
Respondent argues that La Serna’s participation in the April 16 march was unprotected as 45
the march was not sanctioned by the Union and La Serna violated its instructions not to return to
JD(SF)–41–17
41
the South San Francisco campus without permission (R. BR. at 86–97). Respondent cites to
Quantum Elec., Inc., 341 NLRB 1270, 1279 (2004), where employees who left work early to
facilitate attendance at a union meeting were not considered to have engaged in protected
activity. However, here, La Serna, along with other stewards, scheduled this meeting to continue
their protest against Respondent’s discipline of their co-workers for 2 p.m., but specifically did 5
not ask employees to walk off the job or end work early to attend the meeting. The record does
not show that any employees were disciplined for doing as such, and Respondent merely
speculates that by scheduling the meeting at 2 p.m., La Serna sought to have employees walk off
the job. In fact, later Jedan clarified that Respondent understood there would be no work
stoppage. Moreover, the march does not appear to violate any CBA provision. Thus, the act of 10
marching was not unprotected.
Respondent also argues that La Serna was told he could not be on the property which
made his participation in the march unprotected as he violated their instructions. However, as
indicated above, I find that these instructions were ambiguous. It should be noted that La Serna 15
did not enter Respondent’s buildings without permission. He was granted permission on two
occasions: once to pick up his check and another time to attend a labor-management meeting.
On the third occasion, which is the infraction referenced in his termination notice, he remained in
the public areas of the South San Francisco site and did not enter any building. Thus, he did not
violate their instructions which were ambiguous. 20
In sum, under the Burnup & Sims analysis, Respondent violated Section 8(a)(1) and (3)
of the Act when terminating La Serna.
Respondent and the General Counsel, as an alternative theory, argue that La Serna’s
termination needs to be analyzed as a mixed-motive situation.63 As established above, La Serna 25
engaged in well known union and protected concerted activity. I further find that the General
Counsel has established that La Serna’s union and protected concerted activity was a “substantial
or motivating factor” in its decision to terminate La Serna. Respondent knew about the shop
stewards discontent with its recent disciplinary actions. Respondent perceived La Serna’s
fervent engagement in union and protected concerted activity as an affront to Trinidad’s 30

63 In a mixed-motive situation, the Board applies the burden-shifting analysis set forth in Wright Line to
determine whether an employee’s discharge is unlawful thereby violating Section 8(a)(1) or 8(a)(3). 251 NLRB
1083 (1980), enfd on other grounds, 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Thus, the General Counsel must prove by a
preponderance of the evidence that the employee’s protected activity was a motivating factor in discharging the
employee. The General Counsel’s evidence must show that the employee engaged in union and/or protected activity,
that the employer knew about the union and/or protected activity, and that the employer harbored animus toward the
union and/or protected activity. Briar Crest Nursing Home, 333 NLRB 935, 936 (2001); Club Monte Carlo Corp.,
280 NLRB 257, 261–262 (1986), enfd. 821 F.2d 354 (6th Cir. 1987). If the General Counsel successfully
demonstrates that the protected activity was a motivating factor for the discharge, the burden then shifts to the
employer to show that it would have discharged the employee even absent the employee’s protected activity. Wright
Line, supra at 1089; Briar Crest Nursing Home, supra. An employer does not meet its burden merely by showing
that it had a legitimate business reason for its action. Rather, it must persuasively demonstrate that it would have
taken the same action in the absence of the protected conduct. See Boothwyn Fire Co. No. 1, 363 NLRB No. 191,
slip op. at 7 (2016), citing authorities. If the evidence establishes that the proffered reasons for the employer’s action
are pretextual–i.e., either false or not actually relied upon–the employer fails by definition to show that it would
have taken the same action for those reasons, absent the protected conduct. See Golden State Foods Corp., 340
NLRB 382, 385 (2003), citing Limestone Apparel Corp., 255 NLRB 722 (1981).
JD(SF)–41–17
42
managerial authority which demonstrates animus. Casino San Pablo, 361 NLRB No. 148, slip
op. at 3 (2014); Hawaii Tribune–Herald, 356 NLRB 661, 680 (2011); Noble Metal Processing,
Inc., 346 NLRB 795, 800 (2006). Circumstantial evidence supports an inference that
Respondent knew that La Serna was the driving force behind the written communications and in-
person meeting with employees, as well as the grievance requesting Trinidad’s removal. 5
Respondent argues that La Serna participated in marches in the past which did not result in
discipline. Simply because La Serna engaged in known union activity without any violations of
the Act in prior years does not mean that animus cannot ever be proven.
Trinidad also spoke of La Serna’s efforts to remove her during the March 26 meeting 10
regarding Quintanilla. Only 4 days later, Respondent suspended La Serna for not
communicating respectfully with Trinidad, insubordination and violence in the workplace.
Thereafter, only one week after the April 16 march, Respondent decided to terminate La Serna
for his conduct toward Trinidad during the March 26 meeting as well as his participation during
the April 16 march. Thus, the timing of events is suspicious.15
In addition, the proffered reason for the termination is suspect. La Serna was treated
differently from other employees. For example, Alcantara reported that she saw Lopez “driving
around building 43 and 48” the day she was suspended, April 1, and immediately reported her
observation to her supervisor (GC Exh. 206). However, Lopez was not terminated, in part, for 20
such infraction as was cited in La Serna’s suspension. Quintanilla attended the April 7 labor–
management meeting, after her suspension, was seen by Periolat, and not disciplined for her
attendance.
Also, Respondent’s reasons for terminating La Serna shifted during the course of events. 25
Shifting explanations for adverse employee actions is evidence of discriminatory intent as well
as pretext. Seminole Fire Protections, 306 NLRB 590, 592 (1992). Periolat testified that La
Serna was also terminated for providing false information during the investigation, but La
Serna’s termination document did not include that reason. The document states: “Ch.2 EHB
pg.14–15/Insubordination–returning to the client site after suspension after directed not to re–30
enter site. (2) CH.2 EHB pg. 16 Misconduct–Insubordination involving Sonia Trinidad” (GC
Exh. 35). It is clear from the record that La Serna’s discharge was motivated by Respondent’s
animus towards his union and protected concerted activity, especially his push to remove
Trinidad from the workplace. Shifting explanations by Respondent is another evidence of
pretext.35
Furthermore, Respondent cited to no other employees who had been terminated for
similar misconduct. However, the General Counsel showed that other employees had been
issued lesser discipline for insubordination (see GC Exh. 106, 137, 148). In addition, Lopez and
Quintanilla were not disciplined for returning to the property after their suspensions.40
JD(SF)–41–17
43
As Respondent’s reasons for terminating La Serna are pretextual, even under a Wright Line
analysis, Respondent violated Section 8(a)(1) and (3) of the Act.64
Based on the foregoing, Respondent violated Section 8(a)(1) and (3) of the Act when it
suspended and terminated La Serna. 5
D. Respondent Violated Section 8(a)(1) and (3) of the Act when Terminating Quintanilla
The General Counsel alleges that Respondent violated Section 8(a)(1) and (3) of the Act
when it terminated Quintanilla on April 9. Respondent, on the other hand, argues that it lawfully 10
terminated Quintanilla (R. Br. at 79–103). Specifically, Respondent argues that Quintanilla did
not engage in protected concerted or union activity known by Respondent, and even if so, she
would have still been terminated. Quintanilla’s termination will be analyzed under Wright Line.
1. Quintanilla engaged in union and protected, concerted activity which was known to 15
Respondent.
Although Quintanilla’s union and protected concerted activity was not as extensive as La
Serna, she too engaged in union and protected concerted activity when she ran for shop steward
in March 2015. The Union announced the election a few days prior and posted at the time clocks 20
and bulletin boards the names of employees’ names running for shop steward. Brodie shared the
information regarding the upcoming shop steward election with Kahn on February 26. Brodie
informed Kahn that he would let him know the names of those employees running for shop
steward once he became aware. Kahn, on cross-examination, admitted that he knew the names
of the employees running for shop steward including Quintanilla prior to her suspension and 25
termination. In addition, two days prior to her termination, on April 7, Quintanilla participated
in a labor-management meeting at the South San Francisco site which included Periolat,
Emperador and Kahn. Thus, Quintanilla engaged in union and protected concerted activity
which was known to Respondent. Respondent’s argument that Quintanilla did not engage in
union and protected concerted activity is rejected along with its argument that her actions were 30
not known to Respondent, particularly Periolat. It is well-established that a supervisor’s
knowledge of protected concerted activities and/or union activities is imputed to an employer in
the absence of credible evidence to the contrary. See State Plaza, Inc., 347 NLRB 755, 757
(2006); Dobbs Int’l Services, 335 NLRB 972, 973 (2001). The credited evidence does not
support Respondent’s argument. 35
2. Respondent discriminatorily discharged Quintanilla.
The record is ripe with evidence of union animus against those employees who advocated
or supported the Union. Respondent took every opportunity to shut down the shop stewards 40

64 The General Counsel advances a third theory that Respondent’s instructions to La Serna to not return to
Genentech’s property while he was suspended, if assumed to be credited, are unlawful under the legal principles set
forth by the Board in Tri–County Medical Center, 222 NLRB 1089 (1976). The General Counsel further argues that
since the instructions to La Serna were unlawful, his resultant termination is also unlawful under Continental Group,
Inc., 357 NLRB 409 (2011). Since Respondent unlawfully suspended and terminated La Serna under a Burnup &
Sims analysis, as well as under the alternate theory of Wright Line, I find it unnecessary to discuss such a theory.
JD(SF)–41–17
44
protestations against its conduct. Respondent even sought the aid of the Union to stop these
employees. Motivation of antiunion animus may be inferred from the record as a whole, where
an employer’s proffered explanation is implausible or a combination of factors circumstantially
support such an inference. Union Tribune v. NLRB, 1 F.3d 486, 490–492 (7th Cir. 1993).
Simply because Respondent did not discriminate against all the shop stewards does not prove 5
that Respondent had no antiunion animus. Even without direct evidence, the Board may infer
animus from all the circumstances. Flour Daniel, Inc., 304 NLRB 970 (1991).
Respondent claims that Quintanilla was terminated because of her false and misleading
information related to a workplace injury. While it is true that Quintanilla lied about when her 10
workplace injury occurred, Respondent’s decision to terminate Quintanilla was excessive and
pretextual.65 Respondent conducted an “investigation” only after Quintanilla became a shop
steward and participated in a labor-management relations meeting. This investigation only
consisted of statements already known to Respondent when it decided to suspend Quintanilla. A
timeline of events shows Respondent’s pretext. On March 5, Hawes reported to management 15
that Quintanilla was injured during his shift but did not stop her work and report her injury
immediately. On March 6, Silva entered the injury into Respondent’s database. Thereafter, on
March 10, Respondent proposed a warning for failing to report the injury timely. On March 11,
Cazarez investigated Quintanilla’s injury by questioning her when it was suspected that she may
have been untruthful in her version of events. 20
At some unknown point, both Kahn and Trinidad spoke to Periolat for her advice;
Periolat recommended suspension. Only one day after the shop steward election and tense
March 26 meeting with Trinidad, Cazarez, La Serna, and Quintanilla to announce her
suspension, Cazarez submitted a statement documenting his March 11 conversation with 25
Quintanilla. On April 7, the same day as the labor-management meeting, Silva and another
manager also submitted statements to Respondent regarding Quintanilla’s workplace injury.
Finally, on April 8, Kuruvilla submitted a signed statement. With this documented evidence,
Periolat then decided to terminate Quintanilla for false and misleading information. The timing
of gathering evidence is highly suspicious as all the evidence used by Respondent to terminate 30
Quintanilla were facts known to Respondent prior to her suspension and which it relied upon in
suspending her. Periolat did not question Quintanilla after her suspension nor did she offer her
the opportunity to retract her version of events, which Respondent relies upon to prove it
harbored no animus, after the suspension. An employer’s failure to give an employee the
opportunity to explain the circumstances for which she is being disciplined or discharged support 35
a finding of employer pretext. Diamond Electric Mfg. Corp., 346 NLRB 857, 861 (2006); La
Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002). I agree with the General Counsel in that it
appears that Respondent suspended and terminated Quintanilla for the same incident (GC Br. at
69).
40
Further pretext is found in the fact that Respondent has not disciplined any other
employee to the same level as Quintanilla for a similar infraction. Respondent’s handbook does
contain a provision which states that immediate termination may be issued if an employee

65 Respondent argues that Quintanilla’s credibility is destroyed by her “false and fraudulent” claims against
Respondent (R. Br. at 74). While it is true that Quintanilla was not a truthful about her workplace injury, the
credited evidence shows that Respondent decided to terminate her for her union and protected concerted activity.
JD(SF)–41–17
45
willfully falsifies or misrepresents information. If Respondent had abided by its own policy, it
would have immediately terminated Quintanilla rather than suspending her for the exact same
facts in its decision to terminate. The suspension notification states: “Falsifying information
about the security incident pertaining to work that occurred on March 5, 2015” (GC Exh. 5a and
5b). The termination notification states: “Employee provided false and misleading information 5
related to workplace injury” (GC Exh. 6). Thus, Respondent appeared willing to consider lesser
discipline but circumstantial evidence leads me to conclude that Respondent decided to follow its
handbook only after learning and observing Quintanilla’s union and protected concerted activity.
In addition, the General Counsel set forth numerous examples of employees who were given
written warnings and suspensions for similar falsification allegations. For example, employee 10
Rene Aguilar (Aguilar) signed cleaning logs without completing the work, and submitted a false
statement on a disciplinary form (GC Exh. 106A and B, 107A). Aguilar only received a warning
and suspension for those violations.
As Respondent’s reasons for terminating Quintanilla are pretextual, Respondent violated 15
Section 8(a)(1) and (3) of the Act. Respondent cannot show that absent the union and protected
concerted activity it would have still terminated Quintanilla.66
E. Respondent did not violate the Act when suspending and terminating Lopez
20
The General Counsel alleges that Respondent violated Section 8(a)(1) and (3) of the Act
when it suspended and terminated Lopez on April 1, and April 23, respectively. Respondent
suspended Lopez to investigate threat allegations, and ultimately terminated her for threatening
employees and property, refusing to surrender her badge and dishonesty during an investigation.
Respondent argues that it lawfully suspended and terminated Lopez, and the overwhelming 25
evidence shows that even without protected concerted activity, it would have still suspended and
terminated Lopez.
1. Lopez engaged in protected concerted activity which was known to Respondent.
30
Lopez, although not a shop steward, participated in the March 24 Union meeting. During
this meeting, Lopez openly and vocally supported the shop stewards, especially La Serna, and
berated the leads for allegedly helping Respondent to discipline their co-workers. As Lopez
sought to preserve the rights of other employees by speaking during the union meeting, loudly
defending La Serna’s actions as a shop steward during this meeting, and signing the petition, I 35
find that Lopez engaged in protected, concerted activity which was known to Respondent.
Further evidence to support knowledge on the part of Respondent is the statements submitted by
Hernandez and Barrientos. Thus, Respondent knew that Lopez participated in the Union
meeting which would be considered union and protected concerted activity.
40
Furthermore, the shop stewards created a flyer for an April 16 march which named Lopez
as one of the employees that Respondent sought to discipline unfairly; this flyer was seen by
Respondent on April 14. Lopez also signed a petition that the employees presented to

66 Because the General Counsel has established its burden of proof, and Respondent failed when the burden
shifted to it to justify its decision to terminate Quintanilla, Respondent’s request for litigation expenses is moot (R.
Br. at 76–78).
JD(SF)–41–17
46
Genentech. The petition indicated that the employees were upset with Respondent’s treatment of
them. It is more likely than not that Respondent received a copy of the petition, and that
Respondent was aware of Lopez’ open support of the shop stewards.
2. Lopez’ suspension and termination did not violate the Act.5
In applying the Wright Line analysis, the General Counsel has proven a prima facie case
of discrimination. Lopez engaged in protected concerted activity, which was known to
Respondent. Moreover, as established with La Serna and Quintanilla, Respondent harbored
animus towards the shop stewards and the supporting employees, including Lopez. Respondent 10
pushed back anytime the employees sought to meet to fight against Respondent’s discipline of
their co-workers. Thus, circumstantial evidence infers animus in this instance. Electronic Data
Systems Corp., 305 NLRB 219 (1991).
The General Counsel argues that Respondent’s timing of the suspension is suspect as it 15
occurred one week after the March 24 meetings. I disagree. As soon as Respondent learned of
the statements made by Lopez, Respondent suspended her pending an investigation. During this
suspension meeting, she refused to surrender her badge to Respondent, and would only give her
badge to Genentech’s security member. Thus, I do not finding the timing to be suspect.
20
The General Counsel also argues that a “misunderstanding” occurred among employees
(GC Br. at 83). I disagree. Respondent investigated Alcantara’s report, and then determined that
Lopez violated their zero tolerance policy regarding violence in the workplace. Moreover,
considering the totality of the circumstances with regarding to statements made to Rodriguez,
Respondent legitimately reasoned that Lopez could act on her claims. The credited evidence 25
shows that Lopez’ comments were not taken out of context, and Lopez failed to clarify what she
actually said or what she possibly could have said to have created the misunderstanding.
In addition, Respondent showed that it did not act inconsistently. Respondent informed
Lopez that she would be suspended pending an investigation into the statements she made, and 30
then later terminated. The General Counsel claims that Respondent acted inconsistently and
proffers the matter concerning Miguel Valera (Valera) as a comparator. Valera reported claims
of harassment, and during the harassment investigation, opened August 21, 2014, Respondent
learned in mid–September 2014 of alleged threats by Valera to other employees. In that situation
Respondent used Valera’s suspension period as a disciplinary measure. Ultimately, Valera 35
abandoned his job one month later (GC Exh. 155). Here, Alcantara reported Lopez’ threats
which caused Respondent to suspend and terminate her. The difference between the two matters
is that Valera’s threats were discovered well after they occurred whereas the threat Lopez posed
was dependent on how Respondent’s handled La Serna’s disciplinary action. Thus, Respondent
did not treat Lopez inconsistently.40
Respondent also extensively investigated Lopez’ misconduct and conducted the
investigation and disciplinary procedures in accordance with Respondent’s policy. Respondent
interviewed Lopez along with many other employee witnesses. Objectively, the credited
statements attributed to Lopez would not merely cause an employee to feel “uncomfortable” or 45
“annoyed” but rather constituted legitimate threats to the workplace and employees. See Stemilt
JD(SF)–41–17
47
Growers, Inc., 336 NLRB 987 (2001) (Board found that the employer demonstrated it would
have suspended and discharged a pro-union supporter who deliberately pushed his 80-pound
packing cart toward another employee). Although Barrientos and Hernandez submitted
statements during the course of Respondent’s investigation, the critical statements for which
Lopez was suspended and terminated was for her statements to Alcantara. I also do not fault 5
Respondent for not reporting Lopez’ threats to the police, considering that it immediately placed
her on suspension pending its investigation. Lopez’ threat was contingent on whether
Respondent terminated La Serna. La Serna was not suspended until March 30, and terminated
on April 23. That same day Respondent terminated Lopez. Periolat, though, on April 7 did warn
the shop stewards that Lopez could not attend the April 7 meeting at the facility, and warned her 10
to leave the premises or security would be called. In addition, Respondent included in its
termination of Lopez that she continued to audio record the suspension meeting despite being
told not do so and affirming that she had.
Respondent only discussed the threat charge in its brief, and failed to discuss the charges 15
regarding refusing to surrender her badge and dishonesty during an investigation. These
incidents occurred during the suspension meeting. As for the insubordination charge, Lopez did
refuse to turn over her badge, and Respondent needed Genentech to take the badge. I disagree
with the General Counsel’s characterization of Respondent’s action as “acquiesce[ing]” to her
request (GC Br. at 87). Rather Respondent had no option other than to call security to take 20
Lopez’ badge. Despite finding that Lopez engaged in protected concerted activity which was a
motivating factor in her termination, I find that her termination was lawful. Although there were
no real comparator employees, Respondent’s policy of a zero tolerance policy for threats in the
workplace supports its decision to terminate Lopez.
25
Respondent has proven that it would have suspended and terminated Lopez even without
her protected concerted activity. The General Counsel has not established sufficient grounds to
reject Respondent’s credited evidence. See, e.g., Carrier Corp., 336 NLRB 1141, 1141 fn. 3
(relying on credited testimony, the employer established its affirmative Wright Line defense). As
Respondent argues, the facts here are similar to the facts in Wal–mart Stores, Inc., 341 NLRB 30
796 (2004) where a pro-union employee threatened to blow up the premises. Similarly, Lopez
threatened to blow up the buildings if La Serna were terminated. The most striking evidence is
Lopez’ failure to explain what she actually said or what could have been misinterpreted when
she was suspended; she waited until her suspension investigatory meeting to provide an
explanation for why Rodriguez may have stated she had weapons which calls into question her 35
credibility and motivation. Moreover, she testified inconsistently about whether she had ever
discussed weapons in the workplace.
Therefore, I dismiss the General Counsel’s complaint allegations that Respondent
violated the Act when suspending and terminating Lopez.40
F. Respondent violated the Act when suspending and termination Prieto
The General Counsel also argues that Prieto’s suspension and termination on May 20 and
June 20, respectively, violated Section 8(a)(1) and (3) of the Act. Meanwhile, Respondent 45
argues that it did not violate the Act as the decision makers were not aware of Prieto’s protected
JD(SF)–41–17
48
activity, Respondent harbored no antiunion animus, and would have suspended and terminated
Prieto for falsification even without protected concerted activity.
1. Prieto engaged in protected concerted activity which was well known to
Respondent.5
Again, the record is filled with evidence that Prieto engaged in protected concerted
activity for many years at Respondent as a shop steward. Moreover, Respondent’s managers
including Kahn, Brodie, Periolat, Trinidad, and Emperador were well aware of Prieto’s union
activity as he participated in labor-management meeting with those managers. Therefore, 10
Respondent’s argument that Periolat and Emperador would not be aware of who are the shop
stewards because they work in a remote location is false. Furthermore, Prieto worked with La
Serna in 2015 to complain to the Union about Respondent’s increased discipline of their co-
workers. When the Union failed to address their needs, they took matters into their own hands.
Prieto also participated in the grievance filed with Respondent, requesting Trinidad’s removal 15
from the South San Francisco site. In February, Brodie informed Kahn about this information he
gathered. Prieto also participated in the March 24 meetings with employees where they
discussed the increased number of disciplinary actions issued by Respondent. Prieto also
represented employees in disciplinary actions including Quintanilla and La Serna. Prieto ran
again for shop steward, and Kahn knew about the election and the names of the candidates from 20
Brodie. Prieto also participated in the April 16 march, speaking directly to Genentech
representatives, and signed the petition. Thus, Prieto engaged in union and protected concerted
activity which was well known to Respondent.
2. Respondent unlawfully suspended and terminated Prieto.25
Respondent suspended Prieto for falsification of the logbooks. In terms of animus, the
Board has long held that the timing of adverse action shortly after an employee has engaged in
protected activity may raise an inference of animus or unlawful motive. Disciplinary action only
one month after engaging in known protected concerted activity is sufficient to prove animus. 30
See Sheraton Anchorage, 363 NLRB No. 6 (2015) (finding that an employee’s discharge which
occurred 2 months after giving testimony “substantially adverse” to his employer, suggests that
the motivation behind his termination was his protected activity, his testimony). In addition, as
explained within, Respondent actively worked to dissuade the shop stewards from rallying the
employees to protest disciplinary actions. Respondent even reached out the Union to pressure 35
the shop stewards to withdraw their grievances and to threaten the employees with loss of their
side agreement.
Respondent’s investigation, while extensive, focused on irrelevant questioning where
employees would certainly not admit to signing the logbooks if they had not cleaned a room. 40
Also I agree with the General Counsel’s argument that Respondent did not seek to gather
pertinent facts such as if there were any witnesses to Lazo and Prieto’s conversation. A shoddy
investigation supports a conclusion of pretext.
Respondent also characterized Prieto’s actions as falsification but the credited evidence 45
shows that Prieto explained that there was confusion on which areas he was to clean. Prieto
JD(SF)–41–17
49
clarified immediately that he had not cleaned the rooms when questioned. Prieto certainly is not
completely without fault here. He did not clean the rooms as assigned and altered his reasoning
for why he did not clean the rooms but reviewing the comparable punishment Respondent issued
for similar misconduct, the penalties were not so severe. In one instance of discipline most
directly on point, an employee in 2013 failed to clean an area, and when questioned she lied 5
about cleaning the area. Respondent confronted the employee with evidence to the contrary
which she then admitted (R. Exh. 90). Respondent terminated this employee. Another employee
was given a verbal warning for failing to perform weekly cleaning (GC Exh. 110). An employee
was also issued a verbal warning for failing to clean a room in the GMP area (GC Exh. 114).
Respondent only suspended Manzanares when he failed to sign the pass through log and 10
backdated a cleaning log (GC Exh. 118). Employees have also been removed from GMP rather
than terminated (GC Exh. 118). Respondent’s claim that Prieto’s actions were different from
other disciplined employees is a distinction without a difference. Kahn and Brodie tried to parse
differences among allegations of falsification (which they claim Prieto did), and backdating
(where the employee performs the task but forgets to sign the logbook). Respondent also claims 15
that since Periolat did not decide all these cited instances of other disciplinary actions they would
not be proper comparators. I disagree. As the human resources director, Periolat should have
the information to ensure that the discipline she recommends and decides remains consistent.
Respondent cites MEMC Electronic Material, Inc., 342 NLRB 1172, 1198 (2004) for its
argument. However, Respondent cites to the administrative law judge portion of the decision to 20
which no exception had been filed and thus, not of precedential value. When the Board has
adopted all or even a portion of a judge’s decision to which no exceptions have been filed, that
decision or portion is not binding precedent in other cases. Operating Engineers Local 39 (Mark
Hopkins Intercontinental Hotel), 357 NLRB 1683 n. 1 (2011); and Trump Marina Associates
LLC, 354 NLRB 1027 n. 2 (2009), reaffd. 344 NLRB 585 (2010), enfd. 435 Fed.Appx. 1 (D.C. 25
Cir. 2011).
Having found that the General Counsel has proven Prieto’s union and protected concerted
activity was a motivating factor for Respondent’s suspension and termination, the burden shifts
to Respondent to prove, as an affirmative defense, that it would have taken the same action even 30
in the absence of union activity. Austal USA, LLC, 356 NLRB 363, 364 (2010). Respondent
cannot overcome its burden as the evidence shows that its decision to suspend and terminate
Prieto was motivated by his union and protected concerted activity. Moreover, Respondent often
gave employees reduced disciplinary actions rather than suspensions and termination. The
credible evidence shows that Prieto was immediately honest with Brodie when he informed him 35
he had not cleaned the rooms. Without a doubt, Prieto could have explained himself better but
Respondent did not make consistent decisions on its related disciplinary actions. Rather than
accepting Prieto’s confession when he admitted immediately that he did not cleaned the rooms,
Respondent claimed that he falsified the logbooks. Respondent’s motivation to terminate Prieto
rather than issuing a lesser disciplinary action seems driven by antiunion sentiment. 40

JD(SF)–41–17
50
I find that Respondent failed to prove that it would have taken the same adverse actions
in the absence of union and protected concerted activity. Thus, Respondent violated Section
8(a)(1) and (3) of the Act when suspending and terminating Prieto.
CONCLUSIONS OF LAW5
1. Respondent, SBM Site Services, LLC, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and the SEIU-USWW Local 1877 has
been a labor organization within the meaning of Section 2(5) of the Act.
10
2. Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act by suspending and discharging employee Jose La Serna on March 30, 2015,
and April 23, 2015, respectively, because of his participation in union and protected
concerted activities.
15
3. Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act by discharging employee Esther Quintanilla on April 9, 2015, because of her
participation in union and protected concerted activities.
4. Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) 20
of the Act by suspending and discharging employee Adilio Prieto on May 20, 2015, and
June 20, 2015, respectively, because of his participation in union and protected concerted
activities.
5. The above unfair labor practices affect commerce within the meaning of Section 2(6) and 25
(7) of the Act.
6. All other allegations in the complaint are dismissed.
REMEDY30
Having found that Respondent has engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act.
35
Respondent, having discriminatorily suspending and discharging Jose La Serna,
discharging Esther Quintanilla, and suspending and discharging Adilio Prieto, shall be ordered to
offer them reinstatement to their former positions, or if those jobs no longer exists, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed, and to make them whole for any loss of earnings and other 40
benefits they may have suffered as a result of the discrimination against them. As this violation
involves cessation of employment, the make whole remedy shall be computed on a quarterly
basis, less any interim earnings, as prescribed in F.W. Woolworth Co., 90 NLRB 298 (1950),
with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with Don 45
Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), Respondent shall compensate
JD(SF)–41–17
51
Jose La Serna, Esther Quintanilla, and Adilio Prieto for the adverse tax consequences, if any, of
receiving lump-sum backpay awards. In addition, in accordance with AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016), Respondent shall, within 21 days of the date the amount of
backpay is fixed either by agreement or Board order, submit and file with the Regional Director
for Region 20 a report allocating the backpay award to the appropriate calendar year for said 5
employees. The Regional Director will then assume responsibility for transmission of the report
to the Social Security Administration at the appropriate time and in the appropriate manner.
In accordance with King Soopers, supra, Respondent shall compensate Jose La Serna,
Esther Quintanilla, and Adilio Prieto for search-for-work and interim employment expenses 10
regardless of whether those expenses exceed their interim earnings. Search-for-work and interim
employment expenses shall be calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River
Medical Center, supra. Respondent shall also be ordered to expunge from its files any and all
references to the discriminatory and unlawful suspension and discharge of Jose La Serna, 15
discharge of Esther Quintanilla, and suspension and discharge of Adilio Prieto, and notify them
in writing that this has been done and that evidence of the discriminatory and unlawful action
will not be used against them in any way.
The General Request also requests that I order Respondent to reimburse Jose La Serna, 20
Esther Quintanilla, and Adilio Prieto for “consequential economic harm” incurred by them as a
result of Respondent’s unlawful conduct. Respondent opposes such a request. After post-
hearing briefs were filed, I granted the General Counsel’s request for supplemental briefing on
this issue, and thus find that the General Counsel did not waive its right to make such a request
as argued by Respondent. I also permitted Respondent to file a responsive brief to the General 25
Counsel’s request for consequential damages. The Board does not traditionally provide remedies
for consequential economic harm in make-whole orders. See Operating Engineers Local 513
(Long Const. Co.), 145 NLRB 554 (1963). While the General Counsel acknowledges the
Board’s typical remedies ordered, the General Counsel urges that the discriminatees should be
reimbursed for consequential economic harm if so shown. Both the General Counsel and 30
Respondent thoroughly briefed the issue, which the Board may consider. However, at this stage
in the proceedings, I must follow Board precedent, cannot order such a remedy, and deny the
General Counsel’s request. Pathmark Stores, Inc., 342 NLRB 378, 378 fn. 1 (2004); Waco, Inc.,
273 NLRB 746, 749 fn. 14 (1984).
35
Respondent argues that the doctrine of after-acquired evidence bars Jose La Serna from
seeking a make-whole remedy (R. Br at 97–100). The Board has held that if an employer
satisfies its burden of proving that a discriminate engaged in unprotected conduct for which the
employer would have discharged any employee, reinstatement is not ordered and backpay is
terminated on the date the employer first learned of the misconduct. Tel Data Corp., 315 NLRB 40
364, 367 (1994), reversed in part on other grounds, 90 F.3d 1195 (6th Cir. 1996); Marshall
Dublin Poultry Co., 310 NLRB 68, 69–70 (1993), reversed in part on other grounds, 39 F.3d
1312 (5th Cir. 1994); John Cuneo, Inc., 298 NLRB 856, 856–857 (1990). The Board follows
this rule concerning after–acquired evidence of employee misconduct to “balance [its]
responsibility to remedy the Respondent’s unfair labor practice against the public interest in not 45
JD(SF)–41–17
52
condoning” the discriminatee’s misconduct. John Cuneo, Inc., supra at 856. The burden of
proof is on the employer. Id.
At the hearing, Jose La Serna denied being self-employed, cleaning buildings, while he
was working for Respondent (Tr. 259–260). However, during a July 5, 2016 deposition in an 5
unrelated matter, Jose La Serna initially testified he had been in business for the 2 prior years,
intermittently, cleaning (Tr. 260–262). Jose La Serna then confusingly testified during this
deposition that his cleaning business began in August 2016, but denied that he performed
janitorial work; Jose La Serna must have misspoken as he was speaking about the future (Tr.
263–264). Jose La Serna also testified he had been in the sales and flea market business (Tr. 10
264, 352). Later, Jose La Serna clarified during this deposition that he began his cleaning
business to clean kitchens after he was terminated in August 2015 (Tr. 353, 355–356). I find that
Jose La Serna’s testimony regarding his work, cleaning buildings, while working at Respondent
was not clear. As I found Jose La Serna to be a generally credible witness as set forth above, I
credit his testimony at the hearing that he did not work for a competing business while employed 15
by Respondent which would have been a violation of its rules. Respondent failed to adduce
sufficient evidence to convince me that it has meet its burden of proof. Therefore, I deny
Respondent’s request to not reinstate Jose La Serna and not award him full backpay.
On these findings of fact and conclusions of law, and on the entire record, I issue the 20
following recommended:67
ORDER
Respondent, SBM Site Services, LLC, McClellan, California, its officers, agents,
successors, and assigns, shall25
1. Cease and desist from
(a) Suspending, discharging or otherwise discriminating against employees
because they engage in union or protected concerted activities;
(b) In any like or related manner, restraining or coercing employees in the 30
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
35
(a) Within 14 days from the date of this Order, offer Jose La Serna, Esther
Quintanilla, and Adilio Prieto full reinstatement to their former jobs, or if
those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously
enjoyed.40

67 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes due under the terms of this Order.
JD(SF)–41–17
53
(b) Make whole Jose La Serna, Esther Quintanilla, and Adilio Prieto, for any loss
of earnings and other benefits suffered as a result of their unlawful
suspensions and/or discharges against them, including any search-for-work
and interim employment expenses, in the manner set forth in the remedy 5
section of this decision.
(c) Compensate Jose La Serna, Esther Quintanilla, and Adilio Prieto for the
adverse tax consequences, if any, of receiving a lump-sum backpay award,
and file with the Regional Director of Region 20, within 21 days of the date 10
the amount of backpay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar years for Jose La
Serna, Esther Quintanilla and Adilio Prieto.
(d) Within 14 days from the date of this Order, remove from its files any 15
reference to the unlawful suspension and discharge of Jose La Serna,
discharge of Esther Quintanilla and suspension and discharge of Adilio Prieto
and within 3 days thereafter, notify said employees in writing that this has
been done and that the discharge will not be used against them in any way.
20
(e) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide a reasonable
place designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including electronic copies of such records if stored in electronic 25
form, necessary to analyze the amount of backpay due under the terms of this
Order.
(f) Within 14 days after service by the Region, post at its facility in South San
Francisco, California, copies of the attached notice marked “Appendix.”68 30
Copies of the notice, on forms provided by the Regional Director for Region
20, after being signed by Respondent’s authorized representative, shall be
posted by Respondent and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices shall be 35
distributed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if Respondent customarily
communicates with its employees by such means. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. If Respondent has gone out of business or 40
closed the facility involved in these proceedings, Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and

68 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor Relations Board."
JD(SF)–41–17
54
former employees employed by Respondent at any time since March 30,
2015.
(g) Within 21 days after service by the region, file with the Regional Director for
Region 20 a sworn certification of a responsible official on a form provided 5
by the Region attesting to the steps that Respondent has taken to comply.
Dated, Washington, D.C. October 5, 2017
10
____________________
Amita Baman Tracy
Administrative Law Judge
JD(SF)–41–17
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT suspend, discharge or otherwise discriminate against you for engaging
in union or protected concerted activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in
the exercise of the rights listed above.
WE WILL, within 14 days from the date of the Board’s Order, offer Jose La Serna,
Esther Quintanilla, and Adilio Prieto full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Jose La Serna, Esther Quintanilla, and Adilio Prieto, whole for any loss
of earnings and other benefits resulting from their suspensions and/or discharges, less any net
interim earnings, plus interest, including any search–for–work and interim employment expenses
they incurred as a result of their unlawful suspensions and/or discharges.
WE WILL compensate Jose La Serna, Esther Quintanilla, and Adilio Prieto for the
adverse tax consequences, if any, of receiving a lump–sum backpay award, and WE WILL file
with the Regional Director for Region 20 within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocating the backpay award to the
appropriate calendar year(s).
WE WILL, within 14 days from the date of the Board’s Order, remove from our files
any reference to the unlawful suspensions and/or discharges of Jose La Serna, Esther Quintanilla
and Adilio Prieto and WE WILL, within 3 days thereafter, notify them in writing that this has
been done and that the suspensions and/or discharges will not be used against them in any way.
JD(SF)–41–17
SBM SITE SERVICES, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret–ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
901 Market Street, Suite 400, San Francisco, CA 94103–1735
(415) 356–5130, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-157693 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
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