Sharing Community

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 393 (N.L.R.B. 1993)

393
311 NLRB No. 40
SHARING COMMUNITY
1 The name of the Union appears as listed in the charge and com-
plaint.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 We note that the Respondent fired a total of 20 employees in
1989–1990 (12 for excessive absences and 8 for unsatisfactory job
performance) not 8 as stated by the judge in his supplemental deci-
sion. We grant the General Counsel’s unopposed motion to correct
the transcript.
The Sharing Community, Inc. and District Council
1701, C.S.A.E.U.,1 American Federation of
State, County & Municipal Employees, AFL–
CIO. Cases 2–CA–24612 and 2–CA–24779
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 5, 1992, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed a brief in response to the
General Counsel’s exceptions. On September 30, 1992,
the Board issued an Order Remanding Proceeding to
the Administrative Law Judge (unpublished). On No-
vember 19, 1992, Judge Green issued the attached sup-
plemental decision. The General Counsel filed excep-
tions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the sup-
plemental decision and the record in light of the excep-
tions and briefs and has decided to affirm the judge’s
rulings, findings,2 and conclusions3 and to adopt the
recommended Order.
In adopting the dismissal of the allegation regarding
the Cartagena discharge, we find that the General
Counsel established a prima facie case that the Re-
spondent’s discharge of Cartagena violated the Act, but
we agree with the judge’s conclusion in his supple-
mental decision that the Respondent demonstrated it
would have discharged Cartagena even in the absence
of his protected activity. In so agreeing, however, we
do not rely on the judge’s reference in his supple-
mental decision to the General Counsel’s prima facie
case as being ‘‘rather marginal.’’ Moreover, we do not
rely on footnote 3 of the judge’s initial decision be-
cause the issue of the legality of Cartagena’s July 24,
1990 suspension was not before the judge, and as a re-
sult the judge could not properly determine whether
the suspension was given for just cause. It is enough
to find that it was not shown to violate the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Sharing Community,
Inc., Yonkers, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Richard L. De Steno, Esq., for the General Counsel.
Robert D. Brady, Esq. (Corcoran & Brady), for the Re-
spondent.
Stephen E. Appell, Esq. (Sipser, Weinstock, Harper & Dorn),
for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on March 9 and 10,
1992. The charge in Case 2–CA–24612 was filed on Septem-
ber 4, 1990, and the charge in Case 2–CA–24779 was filed
on November 21, 1990. The consolidated complaint which
issued on December 6, 1991, and amended at the hearing al-
leged:
1. That on or about August 22, 1990, the Respondent, by
its executive director, Reverend Tony Hoeltzel, threatened
employees with loss of jobs and more onerous working con-
ditions if they selected the Union as their representative.
2. That on or about August 29, 1990, the Respondent by
Hoeltzel, in an effort to dissuade employees from voting for
the Union, threatened employees with loss of jobs, wage
cuts, more onerous conditions, suggested the formation of an
employee committee to deal with management, told employ-
ees that it would be futile to select the Union, and solicited
grievances while promising benefits.
3. That on or about August 30, 1990, the Respondent by
Hoeltzel, interrogated employees regarding the Union.
4. That in September 1990, the Respondent by Hoeltzel,
promised employees an employee assistance program.
5. That on or about October 10, 1990, the Respondent by
Hoeltzel solicited employee complaints, promised benefits,
and suggested that employees form a committee to deal di-
rectly with management.
6. That in October 1990 the Respondent distributed a
memorandum pursuant to which it assisted in the formation
of a committee of employees to deal directly with manage-
ment regarding terms and conditions of employment.
7. That on or about November 14, 1990, the Respondent
discriminatorily discharged and failed to reinstate its em-
ployee Jose Cartagena because of his union activities.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer also asserted that jurisdiction should not be exer-
cised over it because its funding was received from governmental
sources and it did not have control over its own labor relations poli-
cies. This contention was withdrawn during the representation hear-
ing and the Regional Director concluded that assertion of jurisdiction
over the Sharing Community was proper under Res-Care, Inc., 280
NLRB 670 (1986).
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Union began organizing the employees of the Sharing
Community in July 1990 after it was contacted by employee
James Jarema, who was the employee most active on behalf
of the Union. The alleged discriminatee, Jose Cartagena,
signed a union card on July 23, 1990, and he asserted that
he spoke in favor of the Union to the other employees in the
kitchen where he worked.
On July 31, 1990, the Union filed a representation petition
in Case 2–RC–0923 seeking an election among the Respond-
ent’s employees. A representation hearing was thereafter held
on August 28, September 6, 7, and 28, and October 30,
1990. Among the witnesses for the Union were Jarema as
well as employees Ellen MacRae and Tom Delaney, all of
whom were present at the first hearing date on August 28.
Among the issues presented in the representation case was
the appropriateness of the unit sought by the Union.1 In this
regard, it was the Respondent’s contention that the three pro-
grams run by the Sharing Community should be separate
units (i.e., the shelter, the kitchen, and residence facilities).
This contention ultimately was rejected by the Regional Di-
rector who found, in a report issued on September 25, 1991,
that an employerwide unit was appropriate but that profes-
sional employees should be given a self-determination elec-
tion.
On August 22, 1990, at a monthly staff meeting, the Em-
ployer’s executive director, Tony Hoeltzel, spoke to the em-
ployees about a number of issues including the union rep-
resentation petition. Based on the record as a whole, I find
that Reverend Hoeltzel told employees that he was upset that
the Union had been brought in and rhetorically asked why
he was not consulted first. I also find that Hoeltzel said that
if a Union was brought in, it would mean that some people
might be laid off because they did not meet the criteria es-
tablished for their jobs. In this regard, I believe that he said
that under the present circumstances, the employer could
make exceptions in hiring and retaining people who did not
fit the strict job categories established in the budget (for ex-
ample not having the required educational background), but
that if a union came in, there likely would be strict enforce-
ment of job classifications and categories which would elimi-
nate flexibility and could result in some people losing their
jobs. As pointed out by the General Counsel, such statements
constitute threats within the meaning of Section 8(a)(1) of
the Act. Fast Food Merchandisers, 291 NLRB 897, 906
(1988).
On August 29, 1990, Hoeltzel invited Jarema, MacRae,
and Delaney into his office to discuss the Union. (In this re-
gard, he states that he assumed that these three employees
were the leaders as they were the ones who appeared with
the Union at the representation hearing on August 28.) Ac-
cording to Hoeltzel, he called this meeting because ‘‘I had
been struggling with the origin of the union petition that
morning . . . I wanted to find out what the issues were that
generated the petition.’’
The August 29 meeting lasted about 2 to 3 hours and none
of the participants recall all that was said. Although there are
some differences in their recollections, the following descrip-
tion is what I believe took place based on a composite of
the testimony and my observation of demeanor.
Reverend Hoeltzel asked these employees why they had
brought in a union and they responded that they felt that with
a union they could get better wages, job security, maternity
and paternity leave, etc. Hoeltzel stated that he did not un-
derstand how a union would work in this setting and he
thought a union was inappropriate for the Sharing Commu-
nity because as the Employer had to justify its expenditures
to Government agencies it therefore would have to negotiate
with both a union and then with the Westchester Department
of Social Services (DSS) to fund any items granted to em-
ployees through negotiations with a union. Jarema responded
that having a union could therefore be used as a wedge in
the Employer’s negotiations with the DSS and therefore be
beneficial to everyone. Hoeltzel rejoined that having a union
could be an obstacle. During the meeting, Hoeltzel stated that
having a union would eliminate flexibility and that if a union
demanded too much in one area, cutbacks would have to be
made in other areas. (This was connected to the concept of
a constant funding pie.) Hoeltzel said that he felt that with
a union this would mean strict enforcement of job
criteria/classifications and this would likely mean that some
people would have to be laid off. A union, he said, would
mean that there would be reduced communications and poor-
er relationships because of the intercession of a union be-
tween the employees and management. At some point during
the meeting, Hoeltzel said that they did not need a union to
deal with grievances or employee problems; that these issues
could be dealt with by an alternative mechanism, namely, the
establishment of a joint management-employee committee.
He suggested that Jarema, MacRae, and Delaney present this
alternative to the employees and they said that they would.
On August 30, Hoeltzel asked MacRae if she had gotten
any feedback from the employees regarding the committee.
She said no.
On August 31, Hoeltzel asked Jarema and MacRae to meet
with him and asked what if any response the employees had
to the committee idea. Jarema told him that he had made in-
quiries but that the employees were not interested. From that
point, there ensued another 2-hour meeting which went over
essentially the same ground covered by the August 29 meet-
ing.
In relation to the transactions on August 29–31, it is my
opinion that the Respondent violated the Act in a number of
respects. First, Hoeltzel solicited employee grievances and
impliedly promised to remedy them when he suggested the
formation of a committee to deal with the kinds of problems
that had precipitated the Union’s petition. This constitutes a
violation of Section 8(a)(1). Fast Food Merchandise, 291
395SHARING COMMUNITY
2 Cartagena testified that at some point, Stewart told the kitchen
employees that they were separate from the rest of the Sharing Com-
munity and would have to get their own union. He also contends
that she said that if they got a union, they would have to pay union
dues and they would work fewer hours. Stewart essentially concedes
that she made the former statement but denies the latter. In either
case, these comments, which are not alleged to be 8(a)(1) violations,
do not, in my opinion, add anything significant to the allegations and
do not overcome the weight of evidence showing that Cartagena was
discharged for cause.
NLRB at 906; A.J.R. Coating Division Corp., 292 NLRB
148, 163 (1988). Second, by questioning the three employees
as to why they brought in a union, coupled with the other
8(a)(1) conduct, the Respondent in my opinion, unlawfully
interrogated employees in violation of Section 8(a)(1).
Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom.
Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985). I also conclude that the Respondent
violated Section 8(a)(1) by the unconditional statements indi-
cating that a union would bring about a reduction in commu-
nications, a loss of flexibility regarding placing people in
certain jobs, and a concomitant possibility that people would
be laid off. On the other hand, the employer did not state
that it would not bargain with the Union if the employees
selected it and I do not construe Hoeltzel’s remarks as con-
stituting a statement that it would be futile for employees to
select the Union.
On October 30, 1990, another meeting was held at the fa-
cility. At this meeting Hoeltzel asked the employees to make
suggestions for the budget to be presented in December and
he wrote them down on a large paper taped to the wall. (Es-
sentially a wish list). Hoeltzel then stated that he wanted to
have a committee elected that would prioritize the items on
the list. A few days later, a memorandum was distributed the
staff reading:
Re: Committee.
In our mandatory meeting on Wednesday it was de-
cided that a committee be formed from each program
component to prioritize the listing of items to possibly
include in our employee benefits package which will be
presented to D.S.S.
Please select a candidate from the ‘‘Skelton-Oper-
ations’’ employee listing that you think would best rep-
resent our component as a committee person. You need
not identify yourself, just enclose your circled choice
employee listing in the attached envelope, write Ballot
on the front and drop in the black box near Wanda’s
desk.
Your cooperation is appreciated, as we need all se-
lections by Monday, October 19, 1990.
Reverend Hoeltzel’s explanation was that as funding con-
tracts generally expire at the end of the year, it has been the
Respondent’s past practice to solicit employee wishes for in-
clusion in the proposed budget and that ad hoc committees
have been established with volunteers for this purpose. Since
this was not contradicted by any of the General Counsel’s or
the Charging Party’s witnesses, I shall assume this to be the
case. The problem here, however, is that the events of Octo-
ber occurred while the representation case was pending and
followed close on the heels of the previous unlawful sugges-
tion to form an employee-management committee to deal
with grievances. Therefore, the events of October 10 and 12,
whatever their precedent, could reasonably be construed by
the employees as a continuation of and implementation of the
illegal statements made in August. I therefore conclude that
in this respect the Employer also violated Section 8(a)(1) of
the Act.
Sometime in June 1990, and before the Union came onto
the scene, certain employees had suggested the creation of an
employee assistance plan which would deal with drug, alco-
hol, or other employee problems. There is evidence that the
employer at meetings in June or July 1990 told employees
that it would consider such a program. In fact, such a pro-
gram was instituted in October 1990. While the employer
contends that the implementation of this program was
planned prior to the petition, the evidence merely shows that
it was put under consideration at that time and therefore was
not decided on until after the Union filed its election petition.
The granting of wage increases or other benefits while a
petition is pending will be held to violate the Act unless the
employer can show that the increases either had been
planned prior to the Union’s advent on the scene or that they
were part of some established past practice. NLRB v. Ex-
change Parts Co., 375 U.S. 405 (1963); Baltimore Catering
Co., 148 NLRB 970 (1964). Further, where the announce-
ment of a benefit is timed so as to influence the outcome of
an election, the Board may find a violation of the Act even
where the benefit had previously been planned. In NLRB v.
Pandel-Bradford, 520 F.2d. 275 (1st Cir. 1975), the court
stated:
The Board has long required employers to justify the
timing of benefits conferred while an election is actu-
ally pending. Justifying the timing is different from
merely justifying the benefits generally. Wage increases
and associated benefits may be well warranted for busi-
ness reasons; still the Board is under no duty to permit
them to be husbanded until right before an election and
sprung on the employees in a manner calculated to in-
fluence the employees’ choice.
Based on the above, it is my conclusion that by promul-
gating the Employee Assistance Program while the election
petition was pending, the Employer violated Section 8(a)(1)
of the Act. See also Sears, Roebuck & Co., 305 NLRB 193
(1991).
The final issue in this case is whether Jose Cartagena was
fired because of his union activities or for cause. For the rea-
sons set forth below I conclude that he was fired for cause
and not for reasons violative of Section 8(a)(3) of the Act.
Cartagena worked in the kitchen as a cook. As noted
above, he signed a union card on July 23, 1990, and he as-
serts that he proselytized among the other employees in the
kitchen in favor of the Union. In this connection, Janet Stew-
art, his supervisor, testified that after she became aware of
the Union, she assumed that all the kitchen employees were
in favor of union representation because since the time of her
hire, she had been trying, with great vigor, to shape up these
employees and get them to do their jobs properly.2
On or about November 10, 1990, Cartagena was asked by
Stewart if he would switch his day off so that he could drive
up to Milton, New York, to pick up some Government-do-
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 As this suspension is not alleged to be a violation of the Act,
it is concluded that it was given for just cause.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
nated food. Cartagena agreed and, accordingly, he was
scheduled to do this task on Tuesday, November 13. (His
regularly scheduled days off were Monday and Tuesday).
On Tuesday, November 13, Cartagena went to the Em-
ployer’s premises, picked up the paper work, and, on arriving
at the U-Haul agency, discovered that they only had avail-
able a truck with a standard shift. As he couldn’t drive this
vehicle, Cartagena returned to the Respondent and told the
secretary that because U-haul did not have a truck he could
drive, he was going home. He then left to pick up his child
from a babysitter.
At this point, Leo Carlo, who was in charge of the kitchen
for that day, contacted Stewart at the Javits Convention Cen-
ter and told her what had happened. She instructed Carlo to
switch assignments with Cartagena so that Carlo could pick
up the food and Cartagena could work in the kitchen. When
Carlo tracked down Cartagena and they returned to the facil-
ity, he told Cartagena that Stewart wanted him to stay and
work in the kitchen while Carlo drove upstate to pick up the
food. Cartagena refused to stay. When Stewart returned to
the kitchen about 5 p.m., she saw that the kitchen was a
mess and when she asked where Cartagena was, she was told
that he had refused to stay. She testified that at this point she
decided to fire Cartagena and, after reviewing his personnel
records, drafted a memorandum which read:
You were scheduled to go to Milton, New York to
pick up Government commodities per discussion last
week, and again this morning; however while trying to
rent the U-Haul you were told the only truck available
was a stick shift. I don’t know what actually conspired
after this, or what happened in between, but a direct
order was given by Louis Carlo to have you take his
place in the kitchen and he was to drive the truck.
I arrived at the Sharing Community around 5:15 pm
and discovered there was only 1 person (staff member)
in the Soup Kitchen, you did not show up at all. The
kitchen was untidy, the dining room not properly
cleaned. This showed 1) lack of responsibility 2) lack
of interest and care of job 3) no regard of fellow em-
ployees 4) Not showing up for work is the same as
abandoning job.
You cannot be depended upon. I finally conclude
that you must be terminated from employment . . . for
gross negligence and disrespect for your work here.
On the following day, Stewart discharged Cartagena and
handed him the above-noted memorandum. When Cartagena
protested his discharge to Schneider, he told Cartagena that
Stewart was part of management and he believed her. Some
days later, Cartagena attempted to apologize to Stewart but
she told him, in essence, that it was too late. (In the mean-
time, Stewart had hired a woman who had been working in
the kitchen as a volunteer).
On direct examination, Cartagena claimed that he had
never received any warnings prior to his union activities.
This, however was shown to be incorrect when he began to
admit during cross-examination that Stewart, on other occa-
sions, had threatened to fire him and that she had given him
a series of poor evaluations. On July 24, 1990 (1 day after
he signed a union card but several days before the RC peti-
tion was filed), Stewart gave Cartagena a 2-day suspension
in relation to an incident that occurred on July 23. In the
memorandum, she specified that unless Cartagena showed
improvement, ‘‘He will not be rehired in the future.’’3
In view of his past work and disciplinary record, it seems
to me that the discharge of Cartagena for abandoning his
work assignment on November 13 was amply justified and
motivated by reasons unrelated to his union activities. Nor do
I conclude that the Respondent’s refusal to rehire him on or
about November 16 when he apologized, was motivated by
union considerations. In this case, Cartagena apologized after
a new employee was hired to take his place and I see no evi-
dence indicating any discriminatory motive in failing to give
him a second chance for conduct which clearly was insubor-
dinate.
CONCLUSIONS OF LAW
1. By threatening employees with job loss and more oner-
ous conditions of employment, the Respondent has violated
Section 8(a)(1) of the Act.
2. By soliciting grievances and by soliciting and assisting
in the formation of a committee to deal with grievances, the
Respondent has violated Section 8(a)(1) of the Act.
3. By interrogating employees regarding their union activi-
ties and sympathies, or the union activities and sympathies
of others, the Respondent has violated Section 8(a)(1) of the
Act.
4. By promising and granting an employee assistance pro-
gram and by promising to remedy employee grievances
while a petition for an election was pending, the Respondent
has violated Section 8(a)(1) of the Act.
5. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, The Sharing Community, Yonkers, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with job loss and more onerous
conditions of employment if they select a union to represent
them.
(b) Soliciting grievances and soliciting and assisting in the
formation of a committee to deal with grievances.
(c) Coercively interrogating any employee about their
union support or union activities.
397SHARING COMMUNITY
5 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.’’
(d) Promising and granting an employee assistance pro-
gram and promising to remedy employee grievances while a
petition for an election is pending.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its New York City facility copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice, on
forms provided by the Regional Director for Region 2 after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten employees with job loss or more
onerous conditions of employment if they select a union to
represent them.
WE WILL NOT solicit grievances or solicit and assist in the
formation of a committee to deal with grievances.
WE WILL NOT coercively interrogate any employee about
his or her union support or union activities.
WE WILL NOT promise and grant an employee assistance
program or promise to remedy employee grievances while an
election petition is pending.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed to them by Section 7 of the Act.
THE SHARING COMMUNITY
Richard L. De Steno, Esq., for the General Counsel.
Robert D. Brady, Esq. (Corcoran & Brady), for the Re-
spondent.
Stephen E. Appell, Esq. (Sipser, Weinstock, Harper & Dorn),
for the Union.
SUPPLEMENTAL DECISION
RAYMOND P. GREEN, Administrative Law Judge. On Sep-
tember 30, 1992, the Board remanded this case to me for fur-
ther consideration regarding the discharge of Jose Cartagena.
In accordance with Wright Line, 251 NLRB 1083 (1980),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), if the General Counsel makes out a prima
facie showing sufficient to support an inference that pro-
tected or union activity was a motivating factor in the deci-
sion to discharge or take other adverse action against an em-
ployee, then the burden shifts to the Respondent to dem-
onstrate that it would have taken the same action in the ab-
sence of the protected activity.
In the present case, the General Counsel arguably has
made out a prima facie showing of discriminatory motiva-
tion. But this showing is, in my opinion, rather marginal in
light of Cartagena’s testimony on both direct and cross-ex-
amination.
Cartagena signed a union card on July 23, 1990, and ex-
pressed his support for the Union among the other kitchen
employees. The supervisor of the kitchen employees, Janet
Stewart, conceded that she assumed that all the kitchen em-
ployees including Cartagena were in favor of the Union inas-
much as she had, since assuming her position, been cracking
down on these employees in an effort to make them perform
their jobs better. There was testimony that Cartagena spoke
at a couple of union meetings expressing his prounion sym-
pathies.
There is no doubt in my mind that the Respondent made
efforts, including illegal efforts, to avoid unionization. This
is a factor supporting the General Counsel’s claim that
Cartagena’s discharge was motivated by illegal consider-
ations. Also supporting this claim is the timing of his dis-
charge which occurred on November 14, 1990, soon after the
close of a representation hearing where the parties were liti-
gating who should vote in an election. (That hearing closed
on October 30, 1990.)
On the other hand the evidence established that Cartagena,
after agreeing to work on November 13, his normal day off,
abandoned his job to go home and left the facility without
sufficient personnel. This was not simply a matter of not
being at work as scheduled, but was contrary to instructions
to work in the kitchen when Leo Carlo, the person in charge
of the kitchen that day, switched assignments with Cartagena
so that a load of food could be picked up from an upstate
location. This constituted, in my opinion, insubordinate con-
duct as Cartagena, by leaving without permission, dem-
onstrated a disregard for his responsibilities.
The incident that occurred on November 13, 1990, had it
happened without any background, would not have justified
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 This number of discharges over a 2-year period does not strike
me as showing that the Employer was particularly lenient.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
Cartagena’s discharge. Nevetheless, despite his initial testi-
mony that he had a prior spotless record, Cartagena, on
cross-examination, admitted that Stewart had, prior to any
union activity, threatened to fire him and had given him a
series of poor evaluations. Thus, the November 1, 1990 inci-
dent should not be viewed in isolation, but rather in the con-
text of Cartagena’s past record with Stewart.
The General Counsel argues that the Respondent has been
very lenient to its employees and that the discharge of
Cartagena does not fit into the pattern of its past practice.
Whether or not a company acts in any particular case in
accordance with its past practice is, of course, important in
determining whether the motive of its actions in the disputed
instance was for discriminatory or nondiscriminatory reasons.
This does not mean that it is possible to arrive at a precise
mathematical formula by which we can say with certainty
what was in the employer’s mind when it took its action.
The facts in the present case do not persuade me that the
Respondent’s discharge of Cartagena was outside the range
of its past practice. During the years 1989 and 1990 the Re-
spondent discharged a total of eight employees, one of whom
was discharged twice and one of whom was in probationary
status.1 Of these, some were discharged in situations where
the employee’s conduct was worse than that of Cartagena.
These would include Charles Ennist (drug abuse), Angelo
Buoncore (a bookkeeper discharged for inaccurate and illegal
accounting and check writing practices), and Pablo Cortez
(driving while drunk and hitting two parked cars).
On the other hand, Darryl Barnes, another kitchen worker,
was discharged for his overall poor performance and lack of
respect on two separate occasions. (The fact that Barnes was
rehired after his first discharge, does not, in my opinion, af-
fect Cartagena’s situation because, although Cartagena apolo-
gized on November 16, Stewart had already hired another
person, Sharon Smith, who had previously been doing work
in the kitchen as a volunteer.) If anything, Cartagena’s dis-
charge most closely resembles the discharge of Ray Rivera
who walked off the job despite his supervisor’s order not to
leave and after he missed four shifts without calling in.
While the facts of Cartagena’s discharge are not precisely the
same as those in Rivera’s case, there is a similarity in the
nature of the insubordination. It also must be kept in mind
that Cartagena had previously been warned about his work
performance and Stewart had threatened to discharge him at
a time when there was no union activity.
In conclusion, I am persuaded that the Respondent has
demonstrated that it would have discharged Cartagena on
November 14 because of the November 13 incident, notwith-
standing his union and protected activity.
It therefore is recommended that the allegations of the
complaint alleging that the Respondent unlawfully discharged
and refused to reinstate Jose Cartagena be dismissed.2