Blue Diamond Growers

National Labor Relations Board - Board Decisions

Sep 16, 2008

353 N.L.R.B. 50 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 6
50
California Almond Growers Exchange d/b/a Blue
Diamond Growers and International Longshore
and Warehouse Union, Local 17, AFL–CIO.
Cases 20–CA–32930 and 20–CA–33195
September 16, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On May 31, 2007, Administrative Law Judge Jay R.
Pollack issued the attached decision. The General Coun-
sel and the Charging Party filed exceptions and support-
ing briefs, the Respondent filed an answering brief, and
the General Counsel filed a reply brief.1
The National Labor Relations Board2 has considered
the decision and the record in light of the exceptions3 and
briefs and has decided to affirm the judge’s rulings, find-
ings,4 and conclusions and to adopt the recommended
Order.

1 On June 19, 2008, the Board denied the Respondent’s motion to
strike the General Counsel’s exceptions.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
3 No exceptions were filed to the judge’s recommended dismissal of
the complaint allegation pertaining to the written warning of Cesario
Aguirre.
4 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
In discussing the discharges of employees Leo Esparza and Ludmilla
Stoliarova, the judge misstated the Board’s test in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983). Under Wright Line, the General
Counsel bears the burden of showing that protected conduct was a
substantial or motivating factor in the adverse employment action. The
elements required to support such a showing are union or other pro-
tected activity by the employee, employer knowledge of that activity,
and antiunion animus on the part of the employer. Intermet Stevens-
ville, 350 NLRB 1350, 1358 (2007). If the General Counsel makes the
required initial showing, the burden then shifts to the employer to
show, as an affirmative defense, that it would have taken the same
action even in the absence of the employee’s union activity. See Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996). Chairman Schaumber
observes that the Board and the circuit courts of appeals have variously
described the evidentiary elements of the General Counsel’s initial
burden of proof under Wright Line, sometimes adding as an independ-
ent fourth element the necessity for there to be a causal nexus between
the union animus and the adverse employment action. See, e.g., Ameri-
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
David B. Reeves, Esq. and Matt Peterson, Esq., for the General
Counsel.
Raymond Lynch, Esq. and Molly Lee, Esq. (Hanson, Bridgett,
Marcus, Vlahos & Rudy), of San Francisco, California, for
the Respondent.
Kate Hallward, Esq. (Leonard Carder), of Oakland, California,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial in Sacramento, California, from January 16 through
19, 2007. On March 20, 2006, International Longshore and
Warehouse Union, Local 17, AFL–CIO (the Union) filed the
charge in Case 20–CA–32930 alleging that California Almond
Growers Exchange d/b/a Blue Diamond Growers (Respondent)
violated Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act). The Union filed the amended charge on October
23, 2006. On this same date, the Regional Director for Region
20 of the National Labor Relations Board issued a complaint
and notice of hearing against Respondent alleging that Respon-
dent violated Section 8(a)(1) and (3) of the Act. Respondent
filed a timely answer to the complaint denying all wrongdoing.
On November 6, 2006, the Union filed the original charge in
Case 20–CA–33195 and amended this charge on December 20,
2006. On December 26, 2006, the Acting Regional Director for

can Gardens Management Co., 338 NLRB 644, 645 (2002). As stated
in Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 (2003), since Wright
Line is a causation standard, Chairman Schaumber agrees with this
addition to the formulation.
In adopting the judge’s finding that the Respondent did not violate
Sec. 8(a)(3) and (1) of the Act by discharging Esparza and Stoliarova,
Member Liebman finds it unnecessary to pass on the judge’s finding
that the General Counsel failed to satisfy his initial burden under
Wright Line. Assuming arguendo that the General Counsel met his
threshold Wright Line burden, Member Liebman finds, in light of the
judge’s credibility resolutions, that the Respondent demonstrated that it
would have discharged the employees for their rule violations even in
the absence of their union activity. Although Chairman Schaumber
agrees with the judge that the General Counsel did not meet his initial
Wright Line burden, he also agrees with Member Liebman that, assum-
ing arguendo that the General Counsel met that burden, the Respondent
demonstrated that it would have discharged the employees in any event.
Member Liebman finds Johnson Technology, Inc., 345 NLRB 762
(2005), in which she dissented, to be distinguishable. In that case,
Member Liebman disagreed with the majority’s finding that the em-
ployer did not violate Sec. 8(a)(1) of the Act by warning an employee
because he used company scrap paper to prepare a union meeting no-
tice. There, the use of the company scrap paper was directly related to
union activity, and there was no evidence that the employer had a rule
or policy in place prohibiting the use of scrap paper. Here, in contrast,
the use of the trash was unrelated to any protected activity; the Respon-
dent maintained a misappropriation rule; and it showed that it had in the
past applied this rule to trash in the dumpster, and that it had informed
employees that permission was required to remove items from the
trash.
BLUE DIAMOND GROWERS 51
Region 20 issued an order consolidating the two cases and a
consolidated complaint and notice of hearing alleging, in addi-
tion to the above allegations, that Respondent also violated
Section 8(a)(1), (3), and (4). Respondent filed a timely answer
to the consolidated complaint denying all wrongdoing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses1 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation with an office and
place of business in Sacramento, California, has been a grower-
owned cooperative engaged in processing and selling almonds
and almond products on a nonretail basis. During the 12
months prior to issuance of the complaint, Respondent sold and
shipped goods valued in excess of $50,000 directly to custom-
ers located outside the State of California. Respondent admits
and I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
Respondent admits and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The consolidated complaint alleges that Respondent unlaw-
fully discharged employees Leo Esparza and Ludmilla Sto-
liarova in order to discourage union membership and activities
in violation of Section 8(a)(3) and (1) of the Act. The consoli-
dated complaint also alleges that Respondent unlawfully issued
a written warning to employee Cesario Aguirre in order to dis-
courage union membership and activities in violation of Section
8(a)(3) and (1) of the Act and, because Aguirre testified for the
Union before the National Labor Relations Board in violation
of Section 8(a)(4) and (1) of the Act. Respondent avers that
Esparza and Stoliarova were discharged and Aguirre was issued
a written warning for violations of company rules and not for
any reasons prohibited under the Act.
B. Background
Respondent, a California corporation, is a cooperative of al-
mond growers with a manufacturing facility in Sacramento,
California. It is engaged in the business of processing and sell-
ing almonds and almond products on a nonretail basis. There

1 The credibility resolutions have been derived from a review of the
entire testimonial record and exhibits, with due regard for the logic of
probability, the demeanor of the witnesses, and the teachings of NLRB
v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those witnesses
testifying in contradiction to the findings, their testimony has been
discredited, either as having been in conflict with credited documentary
or testimonial evidence or because it was in and of itself incredible and
unworthy of belief.
are approximately 600 production and maintenance employees
at the Sacramento facility.
Following an organizing drive by the Union on April 28,
2005, Respondent filed a representation petition in Case 20–
RM–2857 and a charge in Case 20–CP–1078 seeking an expe-
dited election in a unit of its Sacramento facility employees.
Thereafter, the Union disclaimed interest in representing the
employees and the petition and charge were dismissed on
May 9, 2005.
In a prior decision involving these parties, JD(SF)-14-06,
based on a hearing held during the period December 5 through
8, 2005, issued on March 17, 2006, and adopted by the Board
in the absence of exceptions on May 10, 2006, I found that
Respondent in 2005, in response to an organizing campaign by
the Union, unlawfully threatened employees with loss of
scheduled wage increases, loss of benefits including pension
benefits, threatened plant closure and loss of employment and
unlawfully interrogated employees about their union activities.
In addition, I found that Respondent discharged two employees
and warned a third employee for rule violations by applying its
rules more strictly in order to discourage the employees’ union
activities and union membership.
Respondent’s handbook for hourly employees provides, at
section 4.10 rules of conduct, various rules applicable to em-
ployees. Included in these rules is “section I–house rules.”
Respecting these rules, the handbook states:
The first infraction of the House Rules under this section will
result in immediate suspension and probable termination. In
the unusual event of a written warning issued in lieu of termi-
nation, the written warning will count under the discipline
standards established under the Section II–House Rules.
The enumerated section I rules include:
15. Misappropriation and/or unauthorized possession of Blue
Growers’ or other employees’ personal property or attempting
to remove such property from Blue Diamond Growers’ prem-
ises. [Sometimes referred to as the misappropriation rule.]
The rules also include “section II–house rules” which are ex-
plained in the handbook as follows:
A violation of rules in this section will result in a written
warning. You will be subject to termination for receiving any
of the following:
1. Three (3) or more written warnings in any 12 work-
ing month period, or
2. Six (6) or more written warnings in any 36 working
month period, or
3. Two (2) written warnings in a season at the outside
receiving stations
NOTE: These limits do not apply to employees during their
introductory period and do not bind the Company to any pro-
gressive discipline process in any case where the Company
deems such process to be inappropriate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD52
The enumerated section II rules include:
1. Failure to comply with the requirements of the
Food and Drug Administration’s “Good Manufacturing
Practices.”
2. Failure to report an on-the-job injury immediately
to your supervisor.
3. Failure to report a disease or condition which may
endanger the health of employees or contaminate any Blue
Diamond Growers products.
Respondent also maintains a written policy respecting the
“disposition of surplus property” which reserves the disposition
of all such property to the discretion of management. Scrap
materials under the policy may be given away without charge
to employees upon request by completing a specific form deal-
ing with release of surplus property. Scrap materials may not
be removed from the premises without a proper authorization
form approved by an appropriate manager. Defective and or
dangerous items may not be sold but rather should be de-
stroyed.
Finally, Respondent has at relevant times maintained a rule,
at section 7.21 of the employee handbook under the subheading
“personal safety equipment” which provides:
Wear safety glasses, goggles, or face shields whenever there
is exposure to injury from flying particles or splash. Eye pro-
tection is required when grinding, cutting, welding or using
air tools, including blowing down.
C. Facts
1. The discharge of Leo Esparza
a. The events respecting Esparza
In the summer of 2005, Leo Esparza was an employee with
over 20 years of service working swing shift in Respondent’s
distribution center as a lift-truck operator. His immediate su-
pervisor at relevant times was David Nichols, the distribution
center section manager who was under the direction of Ware-
house Manager Jerry Spain. In Esparza’s work area, Respon-
dent maintained a dumpster. It was Esparza’s habit to look in
the dumpster before depositing items in the dumpster.
Esparza was listed on the Union’s list of 58 in-plant union
organizers provided Respondent in April 2005. He was also
one of the few employees on his shift in his work area to wear a
yellow shirt on Fridays indicating support for the Union. He
testified that his support for the Union was known to at least
some of Respondents agents.
Respondent’s security staff had observed Esparza on the eve-
ning of August 30, 2005, placing something in the trunk of his
car which seemed suspicious and determined to place him un-
der observation. The following night, August 31, 2005, during
a work break, Esparza discovered and removed from the dump-
ster a broken weed wacker, a broken broom handle, and a card-
board tube or spindle which held residue of shrink wrap plastic.
He had them in an area of the premises and discussed the oper-
ability of the weed wacker with other employees. Later that
evening Esparza had a brief conversation with lead person
Linda Carter. He told Carter he had found a weed wacker and
asked Carter if she had any use for such an item. Carter told
him she already had one.
Esparza thereafter proceeded to his car with the items. Re-
spondent’s security staff confronted Esparza by his car and
discovered he had the noted items. Esparza readily noted he
had taken the items from the dumpster. He was asked if he had
gotten permission to take the items and he said he did not have
permission. Security, in the absence of Supervisor Nichols who
was working a split-shift schedule during this period and was
not then at work, contacted Carter who also met with security.
Esparza was instructed to return the items taken until proper
authorization to remove them was obtained. Security thereafter
prepared an incident report which was circulated to manage-
ment. The security department’s “miscellaneous incident/
observation report” dated September 2, 2005, in essence recited
the noted events, including a confirmation that the weed wacker
had been disposed of by a gardener due to a severely ruptured
gas tank.
On September 1, 2005, David Nichols and Jerry Spain testi-
fied they met to discuss the incident and Esparza approached
them. They spoke with Esparza. According to an e-mail that
Nichols sent later to Spain, Esparza acknowledged that he knew
he needed permission to take items and he should have asked
before taking the item. Further, Nichols recalled one prior
unspecified instance in which Esparza asked for permission
before taking Respondent’s property. Esparza recalled that he
spoke with Nichols that day. Nichols asked him if he knew he
needed permission to take the items and Esparza answered that
the items were trash and that he did not have permission to take
the items. Esparza conceded that he told Nichols he knew he
needed to get permission to take the items but had not done so.
At the end of the conversation, after Esparza left, Spain told
Nichols to conduct an investigation.
Esparza testified to a litany of interviews with management
agents regarding the matter in which the same theme was re-
peated, that he should have gotten permission to remove the
items and that he had not done so. He recalled the events were
reduced to writing and he signed the writing. He insisted how-
ever that in fact he did not believe he had been obligated to
obtain permission before removing the items and that he made
such statements during this process “to save my job.”
Nichols reviewed the security tapes involved, spoke with
Linda Carter and asked her to prepare a summary of the events
and e-mail it to him. She did so. On September 6, 2005, after
having spoken to Carter and considering the matter Spain in-
formed George Johnson, director of employee services, that he
was suspending Esparza pending further investigation by em-
ployee services. Spain directed Nichols to suspend Esparza
that afternoon and he did so.
Johnson interviewed Spain and Nichols on September 8,
2005, and spoke with Esparza on September 9. Esparza re-
called that he was asked if he had received permission to take
the items and said he had not. He had little further recollection
of the meeting other than remembering he was asked to sign a
document. Johnson testified that Esparza told him that he knew
permission was needed, that he had obtained such permission
from supervisors on previous occasions, and offered no excuse
BLUE DIAMOND GROWERS 53
for his conduct other than that he could not find a supervisor at
the time.
Johnson met with Spain and Nichols again on or about Sep-
tember 12, 2005, sharing his investigatory notes and asking if
they were correct. Each said they were and recommended to
Johnson that Esparza be terminated. Johnson then met with
Plant Manager Kennedy, and Manager Hills in a management
review of the situation. Each reviewed the notes and reports
and the history of enforcement of the section I, rule 15 or mis-
appropriation rule quoted above. They agreed with the recom-
mendation to terminate Esparza. Respondent terminated
Esparza on September 21, 2005. The relevant charge was filed
on March 20, 2006.
b. Additional circumstances relevant to the application
of the rule to Esparza
Respondent’s rules, including the misappropriation rule is
part of the handbook for hourly employees which is issued to
employees at the time of their hire. Further, after the discharge
of the employee Gutierrez as discussed below, Respondent
conducted a departmental meeting in which the misappropria-
tion rule was discussed. This meeting was attended by Esparza.
Spain testified he informed employees “they had to have writ-
ten permission to take anything from Blue Diamond including
stuff that was found in the trash, that absolutely nothing could
be removed without written authorization.” Esparza testified
respecting the meeting with a less certain recollection and,
while his testimony was variant during the examination, con-
cluded his testimony with the position that he did not hear any
speaker specifically state the misappropriation rule applied to
taking trash from a dumpster.
At the hearing the parties stipulated to the following:
For the years 2001 through 2006, there have been 76
incidents of discipline involving a Section 1 violation. Of
these 76 incidents, 43 have resulted in termination, and 33
have resulted in discipline short of termination, i.e. warn-
ings or suspensions.
Between 2001 and May 2006, Dan Ford maintained
407 liability release forms in his files.
The General Counsel adduced evidence that some of the Re-
spondent’s employees had taken discarded items home without
incident. In some cases employees had been observed doing so
by supervisors or security personnel without incident or conse-
quence. There was also evidence offered that oral permission
to take home items was sometimes given by Respondent’s
agents rather than written permission.
Prior to the termination of Esparza, Respondent had dis-
charged four employees for violation of its misappropriation
rule. Two individuals were discharged in 2003 and 2005, re-
spectively for fraudulent use of Respondent’s credit card and
for stealing a book from an employee’s office. Another em-
ployee was discharged in the summer of 2002 for “taking cans
and packets of almonds and placing them in your pockets, as
well as opening packets and eating almonds during working
hours.” A fourth employee, Norberto Gutierrez, was dis-
charged in June 2003, when caught by security attempting to
remove 10 cases of 12 ounce cans of almonds that had been
discarded in a trash dumpster at a time he had neither asked for
nor received a property pass or permission to take the almonds.
2. The discharge of Ludmilla Stoliarova
a. The events respecting Ludmilla Stoliarova
Ludmilla Stoliarova, became an employee of Respondent in
2001, and was well regarded. She was also at relevant times an
open union supporter who wore the union-supplied yellow shirt
at the facility 1 day a week.
On April 27, 2006, Stoliarova at work noticed a janitor pass-
ing by carrying used cardboard boxes which had held vendor
product to the trash. She ask for and received two of the boxes
from the janitor and placed them near an entrance. She at no
time received permission from Respondent’s agents to take the
items. At the end of her work period, she exited the facility,
taking the two boxes with her. During this process she was
observed by fellow employee Pearl Ortiz who asked her if she
had obtained permission to remove the items. When Stoliarova
said she had not, Ortiz warned her that she could be fired for
taking the items without permission. Other employees observ-
ing her exit exclaimed: “Hope she has permission.” Other em-
ployees shouted to her repeatedly: “You better get permis-
sion.”
The next morning, April 28, 2006, an employee reported
Stoliarova’s actions to her lead, adding that she thought Sto-
liarova should be fired. The lead received a like report from
another employee and in turn reported what she had learned to
Manager Don King. King confirmed the reports received and
spoke to Stoliarova. He described the conversation:
I talked to Ludmilla [Stoliarova] and I asked her if she had
taken cartons the day before. She told me that she had and
that the next statement she told me is, why I care, because
they were for the trash. And I talked to her about, you know,
that we had just discussed this in our meeting the previous
week, that she had to get permission to remove anything from
the plant. She again asserted that they were something that
was headed towards the trash and she didn’t feel she needed
permission to take it. . . . She asked me if people needed per-
mission to collect aluminum cans at the plant. . . . I told her I
didn’t feel that they did, because the aluminum cans were
something that employees had dranken [sic] from and set
them off to the side, or they had put them in the trash and
something that they didn’t—that didn’t belong to [Respon-
dent].
King then drafted a memo summarizing these events and sent it
to George Johnson. King met with Johnson that afternoon.
Johnson instructed King to suspend Stoliarova pending further
investigation by the employee services department. Stoliarova
had left work at that time, but the next morning upon her return,
King and Johnson told her she was suspended. Johnson told
her to prepare notes respecting the incident and that he would
be in contact with her.
Johnson continued his investigation, interviewing Stoliarova
on May 3, 2006. She also provided a written statement. Sto-
liarova in essence repeated her earlier report and noted that she
discounted the comments of a fellow employee telling her she
needed permission to take the boxes because she believed the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD54
employee was referring to the contents of boxes rather than
simply empty boxes. Johnson interviewed the employees who
had made comment to Stoliarova. These individuals both con-
firmed their earlier reports regarding their comments to Sto-
liarova and confirmed that they each understood that the rule
was that an employee had to have the permission of a supervi-
sor to remove anything from the facility.
Thereafter, Johnson met with Plant Manager Kim Kennedy.
The two reviewed the matters revealed in the investigation and
concluded Stoliarova’s conduct violated rule 15, Johnson rec-
ommended her termination, Kennedy agreed. Johnson termi-
nated Stoliarova on May 4, 2006. Both Kennedy and Johnson
denied having any knowledge of Stoliarova’s union activities
during these events.
b. Additional circumstances relevant to the rule
A 1-hour safety meeting attended by Stoliarova and her fel-
low department employees was conducted on April 21, 2006—
just days before the Stoliarova events described above. Man-
ager Don King testified he reminded the employees they
needed to get permission to remove anything from the plant,
including from the trash or dumpsters. Lead Ana Avila testi-
fied King told the employees that anything they wanted to take
out of the building needed a permission slip. She recalled he
mentioned taking cartons, anything out of the dumpster. Other
employees testified on behalf of the General Counsel that King
said in the meeting that employees needed a permission slip to
take anything out of the building, but that he did not specifi-
cally mention the trash or the dumpsters.
3. The written warning of Cesario Aguirre
Cesario Aguirre is and has been an employee of Respondent
for 28 year as of the time of the hearing. His last 10 years of
service has been as a mechanic in the maintenance department.
His name was on a list of 58 employees sent to Respondent in
mid-April 2005 naming the Union’s in-plant union organizers
and he wore the union-provided yellow shirt each Friday in
support of the Union. Further he testified in December 2005, in
the hearing underlying my earlier decision, cited supra, con-
cerning a May 5, 2005 conversation with Manager and Safety
Trainer Martin Basquez, Maintenance Department Manager Dan
Ford, and Chris Silva. His testimony was credited and a violation
of the Act sustained based thereon.
In 2002, Aguirre was seriously injured in an on the job acci-
dent in the maintenance department. Respondent’s witnesses
testified this event motivated them to improve safety proce-
dures. In consequence they identified safety issues on the job
and instituted an intensive safety campaign. Part of that cam-
paign involved discussion of the required and proper wearing of
personal protective equipment such as eye goggles. Employees
were instructed to report all safety problems. In addition, vari-
ous equipment including drill presses were marked with signs
noting: “warning-safety glasses or goggles must be worn while
operating this equipment.” The General Counsel adduced evi-
dence challenging the assertion that the sign was posted before
the warning was issued. Respondent’s witnesses testified the
sign had been up before the event.
On January 9, 2006, Aguirre was operating the drill press
wearing safety glasses. He removed his glasses and placed
them on an adjacent table and then inspected the depth of a hole
in the item he was drilling. The drill was withdrawn from the
item being drilled, but the press was on and the chuck and drill
were rotating. Maintenance Department Supervisor Dan Ford
observed this event, approached Aguirre and told him to wear
his safety glasses. Aguirre replied that he had just taken them
off to check the work and forgotten to put them back on. Ford
thereafter contacted Basquez, Aguirre’s direct supervisor, and
reported the matter to him. Basquez in turn contacted depart-
ment lead Roger Wiseman and instructed him to learn the spe-
cifics. Wiseman spoke to Aguirre who reported as above.
Basquez asked Wiseman and Ford to prepare statements and
wrote one himself. He also contacted his supervisor, Daryl
Nelson, to discuss the matter. Nelson and Basquez agreed that
Aguirre had committed a safety violation. In consequence
Basquez drafted a written warning.
The next day, Basquez called Wiseman, Ford, and Aguirre
into his office and asked Aguirre to explain the event. Aguirre
stated he wears his safety goggles all the time but had taken
them off only for a very brief period to inspect the depth of the
hole being drilled and the drill was not engaged. Basquez gave
Aguirre the warning and asked him to sign it but Aguirre re-
fused. The warning in the comment portion stated:
On January 9, 2006 at approximately 10:00 am, Dan Ford,
Maintenance Manager was walking through the main shop
and saw you drilling on the drill press without your safety
glasses on. Dan noticed your safety glasses were sitting on
the drill press table next [to] you. When he told you that you
needed to wear your safety glasses while using the drill press,
you stated you had just taken them off. You are required to
wear your safety glasses at all times while using the drill
press. Not wearing you[r] safety glasses is a violation of
House Rules section II number 8 regarding safety rules, signs,
or instructions.
In the period from March 2004, through January 11, 2006,
Respondent had issued written warnings to five other employ-
ees for failure to wear safety eye covering and had also issued
oral warnings. In some cases the written warnings were issued
after oral warnings.
D. Analysis and Conclusions
1. The discharge of Leo Esparza
In cases involving dual motivation, the Board employs the
test set forth in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 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, 399–403 (1983). Initially, the General
Counsel must establish by a preponderance of the credible evi-
dence that antiunion sentiment was a “motivating factor” for
the discipline or discharge. This means that General Counsel
must prove that the employee was engaged in protected activ-
ity, that the employer knew the employee was engaged in pro-
tected activity, and that the protected activity was a motivating
reason for the employer’s action. Wright Line, supra at 1090.
Unlawful motivation may be found based upon direct evidence
of employer animus toward the protected activity. Robert
Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004). Al-
BLUE DIAMOND GROWERS 55
ternatively, proof of discriminatory motivation may be based on
circumstantial evidence, as described in Robert Orr/Sysco Food
Services, supra:
To support an inference of unlawful motivation, the Board
looks to such factors as inconsistencies between the proffered
reasons for the discipline and other actions of the employer,
disparate treatment of certain employees compared to other
employees with similar work records or offenses, deviations
from past practice, and proximity in time of the discipline to
the union activity. Embassy Vacation Resorts, 340 NLRB
846, 848 (2003).
If the General Counsel has satisfied the initial burden, the
burden of persuasion shifts to Respondent to show by a pre-
ponderance of the credible evidence that it would have taken
the same action even in the absence of the employee’s pro-
tected activity. If Respondent advances reasons which are
found to be false, an inference that the true motive is an unlaw-
ful one may be warranted. Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982). However, Respondent’s defense does not fail simply
because not all the evidence supports its defense or because
some evidence tends to refute it. Merrilat Industries, 307
NLRB 1301, 1303 (1992). Ultimately, the General Counsel
retains the burden of proving discrimination. Wright Line,
supra at 1088 fn. 11.
The General Counsel has established both Esparza’s union
activities and the knowledge or constructive knowledge of
those activities by Respondent. There is no doubt that Esparza
took the actions for which he was terminated. The issue as to
Esparza is whether or not the conduct was the reason for the
discharge rather than his protected union activities. It is there-
fore the termination process that must be examined. The termi-
nation of Esparza involved multiple steps and multiple actions
by the agents of Respondent involved. Each must be evaluated
under the standard set forth above.
First, I find that the actions of the security personnel did not
involve disparate treatment of Esparza compared to other em-
ployees. Thus, I find that the initiation of the meetings respect-
ing the incident was not improper. I further find that the inves-
tigation of events as described above followed consequentially
from the actions of security and the issuance of a security report
and was not evidence of disparate treatment of Esparza or evi-
dence of actions taken against him because of his union activi-
ties or to discourage the union activities of others.
Having gotten past the investigative process, scrutiny must
fall on the discharge recommendations of Respondent’s agents,
as described above, that ultimately caused the discharge. Here
the arguments regarding the misappropriation rule and its ap-
plication both historically and as applied to Esparza ripen. I
have considered the demeanor of the witnesses, the arguments
of the parties on brief and the record as a whole on this critical
issue. I find that the General Counsel has not met his initial
burden to show that antiunion sentiment was a “motivating
factor” for Esparza’s discharge.
I reach this conclusion because I parse the history of en-
forcement of the misappropriation rule into two rough catego-
ries. The first category of rule application is the shop floor
informality of employees and leads or first-level supervision
who, as the General Counsel’s evidence shows, did not with
strict consistency require written or even oral permission to
allow employee removal of discards from the premises. The
second category of rule application is the actions of higher
management when confronted with more formal post investiga-
tion situation such as that presented herein. At that secondary
level—and I have found that the Esparza incident reached that
level benignly and not by improper actions of Respondent—
Respondent has demonstrated that the rule is enforced more
strictly and consistently. Considering the context, I find that
the General Counsel has not been able to demonstrate by a
preponderance of the credible evidence that the discharge rec-
ommendations involving Esparza were based on antiunion sen-
timent. Finally, given the recommendations made, I find there
was no antiunion animus in the final discharge decision taken
or its being carried out as set forth above.
Given this finding, it follows that the General Counsel has
failed to prove that Esparza was fired for union activities as
alleged in paragraph 6 of the complaint. Therefore I shall dis-
miss those complaint paragraphs that apply to Esparza.
2. The discharge of Ludmilla Stoliarova
My analysis of the discharge of Stoliarova applies the same
analytical framework used to consider the discharge of Esparza.
I find the General Counsel has established her union activities
and that her union activities were known to Respondent’s first
level supervision and therefore constructively known by higher
management even given the testimonial denials noted above.
Stoliarova’s circumstances involved Respondent’s actions in
several steps. Considering the events up to the point King was
involved, I find there is no evidence that antiunion or protected
conduct informed the process. Thus I find that it must be the
actions of King and beyond that are to be scrutinized.
Considering the testimony of the witnesses and their de-
meanor as well as the arguments of the parties and the record as
a whole, I find that King took the actions he did based on his
understanding of the rule and his belief that Stoliarova, who
attended the earlier meeting and heard what King said about
misappropriation, knew or should have known she was break-
ing the rule in behaving as had been reported to him.
I further find that, once the matter was placed before the
higher management agents by King, and for the same reasons
as set forth in my analysis of the Esparza discharge supra, their
strict view of the misappropriation rule led first to the broader
investigation of the underlying event and then to recommenda-
tions to discharge Stoliarova and the subsequent decision to
discharge her. I credit the testimony of the decisionmaker that
their conduct turned on their application of the misappropria-
tion rule. I therefore find that the General Counsel failed to
establish consistent with the analytical framework set forth
above, that Stoliarova was discharged in violation of the Act.
Given this finding, it follows that the General Counsel has
failed to prove that Stoliarova was fired for union activities as
alleged in paragraph 6 of the complaint. Therefore I shall dis-
miss those complaint paragraphs that apply to Stoliarova.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD56
3. The written warning of Cesario Aguirre
The General Counsel has established Aguirre’s union activi-
ties, his testimony in the earlier unfair labor practice proceeding
and the fact that his testimony was not supportive of Respon-
dent in that proceeding. The warning he received is established
as well at the circumstances surrounding it. The same analyti-
cal approach as undertaken in resolving the earlier allegations
applies here.
The parties argued the application of the quoted safety rule
to the situation presented. The General Counsel takes the posi-
tion, as did Aguirre in the disciplinary process, that the rule did
not apply to a situation where a drill press, while running in the
sense that the drill and chuck were spinning under power, was
not running in a manner involving a need for safety if it did not
have its drill in contact with the item being drilled. Thus to the
General Counsel and the Charging Party, the cited safety rule
did not apply to Aguirre’s conduct but rather had been, in a
sense forced on the situation revealing the false and pretextual
nature of the justification. Such an unreasonable and pretextual
rationale for the Respondent’s actions, the General Counsel
argues, supports a finding that the true reason for the warning
was the employee’s union activities and his testimony at the
unfair labor practice hearing.
Considering the testimony of the witnesses and their de-
meanor as well as the arguments of the parties and the record as
a whole, I reject the General Counsel’s argument that the safety
eye covering rule did not reasonably or logically apply to
Aguirre’s situation as observed by Maintenance Department
Supervisor Dan Ford. Rather, I find in agreement with Respon-
dent, that the safety rule applied to require wearing of safety eye
covering during any and all employee actions—even if the drill
was not in contact with the item to be drilled on the drill press at
any time the drill and chuck are under power and spinning. I find
that it was reasonable for Respondent’s agents to interpret the
rule in that manner and that it was also reasonable for them to
believe employees understood the rule in that way. The General
Counsel’s offered distinctions that eye protection is needful only
when the drill is engaged by contact with the item being drilled is
not correct as a matter of logic or reason. A spinning drill and
chuck are hazardous and a potential risk to propel objects inad-
vertently put in contact with them into an operator’s eyes. Fur-
ther, the protocol requiring universal at all times when the drill
press is under power, has the benefit of simplicity which makes it
easier for employees to comply with it consistently. To deter-
mine if the Respondent’s agents acted benignly in taking the
decisions they did I must determine if Respondent’s agents in-
volved in the matter interpreted the rule as requiring Aguirre to
were safety eye covering in the circumstances observed. I find
that they did. I further find they believed he had violated the rule
as written and applied.
Having found the actions of Aguirre were in clear violation
of the safety rule, I further find that the issuance of a written
warning by Ford was not disparate treatment supporting the
General Counsel’s argument. The violation occurred under
Ford’s nose and he reacted immediately. There was no dispute
as to what had occurred, only the conclusions respecting
whether the conduct was proper, prohibited, or inconsequential.
I find that Ford did not find it to be either proper or inconse-
quential and acted nondiscriminately in reporting it to his supe-
riors. Thereafter the process, as occurred with Esparza and
Stoliarova, noted supra, took the matter to higher officials who,
like Ford, I find viewed the rule rigorously and would be ex-
pected to take perceived safety violations seriously. Given
these findings I find the written warning was issued based on
Respondent’s belief the safety rule was broken and the warning
was a proper response to such a rule violations. I further find it
was not issued for any other reasons.
Given these findings, it follows that the General Counsel has
failed to prove that Aguirre was issued a safety warning be-
cause of his union activities or because of his testimony in the
earlier unfair labor practice hearing as alleged in paragraph 6 of
the complaint. Therefore I shall dismiss those complaint para-
graphs that apply to Aguirre.
4. Summary and conclusion
The complaint alleges two wrongful discharges and a wrong-
ful written warning in violation of Section 8(a)(1), (3), and (4)
of the Act. I have found in each instance the General Counsel
has not sustained the allegation. I have further determined the
relevant allegations of the complaint be dismissed. It follows
and I find that the complaint should therefore be dismissed in
its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the com-
plaint.
Upon the foregoing findings of fact and conclusions of law,
and upon the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended2
ORDER
The complaint is dismissed in its entirety.

2 All motions inconsistent with this recommended order are hereby
denied. In the event 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.