C.P.F. Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1991

303 N.L.R.B. 316 (N.L.R.B. 1991)

316
303 NLRB No. 47
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
C.P.F. Corporation and Service Employees Inter-
national Union, Local 525, AFL–CIO. Case 5–
CA–20875
June 10, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On November 2, 1990, Administrative Law Judge
Joel A. Harmatz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answer to the Respond-
ent’s exceptions.
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
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, C.P.F.
Corporation, Washington, D.C., its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Insert the following as paragraph 1(d).
‘‘(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively interrogate our employees
concerning union activity.
WE WILL NOT promise benefits to employees to in-
fluence them against supporting a union.
WE WILL NOT discourage union membership by dis-
charging or in any other manner discriminating against
our employees with respect to their wages, hours, or
other terms and conditions or tenure of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Hector Martinez immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed, and make him whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against him with interest.
WE WILL remove from our files, delete, and expunge
any and all reference to the unlawful termination of
Hector Martinez, notifying him that the action has
been taken, and that the termination will not be used
against him in the future.
C.P.F. CORPORATION
Mark F. Wilson Esq. and Charles Posner, Esq., for the Gen-
eral Counsel.
Enrique Balseiro, Esq., of Washington, D.C., for the Re-
spondent.
Jay Hessey, of Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Washington, D.C., on June 18 and 19 and July
5 and 6, 1990, on an unfair labor practice charge filed on
December 22, 1990, and a complaint issued on February 26,
1990, alleging that the Respondent violated Section 8(a)(1)
of the Act by coercively interrogating employees concerning
union activity, by creating the impression that union activi-
ties were subject to surveillance, and by promising benefits
to induce employees to refrain from union activity. The com-
plaint further alleged that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging employees Rosa
Lowry and Hector Martinez because of their union activity.
In its duly filed answer, the Respondent denied that any un-
fair labor practices were committed. Following close of the
hearing, briefs were filed on behalf of the General Counsel
and the Respondent.
On the entire record, including my opportunity directly to
observe the witnesses while testifying and their demeanor,
317C.P.F. CORP.
1 All dates refer to 1989.
2 The normal work shift is from 6 p.m. to 10 p.m.
3 Hessey, the next day, also hand-delivered a demand letter to the Respond-
ent’s headquarters. On December 22, the Respondent filed an election petition
in Case 5–RM–951, reflecting a demand for recognition had been received
from the Union on December 19. G.C. Exh. 5.
4 Hessey testified that Lowry attended meetings held after work and on Sat-
urdays. However, there is no showing that any such meetings preceded her
discharge.
5 While I am convinced that this informal gathering provided the union rep-
resentative its first opportunity for face-to-face contact with Respondent’s em-
ployees, this finding is complicated by Hessey’s prehearing affidavit. Until
confronted therewith, when called by the Respondent as an adverse witness,
the November 27 meeting was described by Hessey and others as the first di-
rect, personal confrontation between Respondent’s employees and union rep-
resentatives. In contrast, however, Hessey’s affidavit states that in mid-Novem-
ber, before any cards were signed, a meeting was held at the Union’s offices
attended by nine of Respondent’s employees. Hessey did not attempt to repu-
diate the affidavit as mistaken, but simply testified that he had forgotten this
meeting. Neither Martinez nor Lowry testified that they had attended such a
meeting. I doubt that it was and shall dismiss the affidavit, as well as certain
uncorroborated testimony of Hessey, as a product of confusion, rather than
recollection from actual experience.
and after considering the posthearing briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Maryland corporation, from, its place
of business in Washington, D.C., has been engaged in the
business of providing janitorial services to various institu-
tions, including the District of Columbia Superior Court-
house, located in Washington, D.C., the sole facility involved
in this proceeding. In the course of those operations, the Re-
spondent, during the 12 months prior to issuance of the com-
plaint, a representative period, received gross revenues ex-
ceeding $50,000 from services provided to District of Co-
lumbia Government. The complaint alleges, the answer ad-
mits, and find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer, as amended, admits and
I find that the Service Employees International Union, Local
525 (the Union) is a labor organization within the meaning
of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Statement
This proceeding involves an initial organization campaign
waged among Respondent’s 55 to 60 janitorial workers em-
ployed under a cleaning contract at the Superior Court Build-
ing in Washington, D.C. From the standpoint of remedy, the
most dramatic issue stems from the alleged discharges of
Rosa Lowry and Hector Martinez.
By way of background, Hector Martinez, on November 18,
1989,1 made the initial contact with the Union. Pursuant
thereto, on Monday, November 27, union representatives met
Martinez and other employees, including Rosa Lowry, as
they were leaving work.2 On that occasion, questions were
answered, authorization cards were solicited and signed, and
union literature distributed.
Later that week, on Friday, December 1, Rosa Lowry was
terminated.
On December 18, employees were assembled twice in con-
nection with the issue of representation. First, before the 6
p.m. work shift began, Union Representative Jay Hessey, in
company of 20 to 25 employees, including Martinez, went to
the Respondent’s courthouse office, and hand-delivered a
written demand for recognition to Lilly Gatlin, the Respond-
ent’s project manager at that site.3 Later, at 7:30 p.m., the
Respondent assembled employees for the purpose of pre-
senting its position on unionization. Toward the end of that
session, Martinez and Lucy O’Brien, the Respondent’s ad-
ministrator, became embroiled in a verbal exchange which
resulted in the former’s termination. The General Counsel
contends that Martinez was discharged, while the Respondent
argues that he voluntarily quit.
The complaint, in addition to the discrimination issues, in-
cludes independent 8(a)(1) allegations, all of which, in the
first instance, turn on issues of credibility. However, because
they relate directly to the question of when the Respondent’s
officials learned of union activity and other matters requisite
to analysis of the 8(a)(3) issues, all are discussed below in
conjunction with the alleged unlawful discharges.
B. The Alleged Discrimination
1. Rosa Lowry
Lowry was hired on December 4, 1988. She was termi-
nated on Friday, December 1. During her entire employment,
Lowry worked as a cleaner, assigned to the third floor. Her
immediate supervisor was Mary Wonson. The latter reported
to Lilly Gatlin, the highest ranking member of management
with immediate day-to-day responsibility at the courthouse.
The Respondent counters the General Counsel’s discrimi-
nation claim with evidence that it was prompted solely by
Lowry’s ‘‘[i]nsubordination [and] . . . bad performance.’’
This contention is enhanced by the evidence showing that
Lowry’s union activity was limited, if in fact known by the
Respondent, at times relevant to her discharge. In this re-
spect, Jay Hessey, the Union’s provisional president, did tes-
tify that Lowry and Martinez were the ‘‘main . . . employee
leaders.’’ However, I am not convinced that this was true of
Lowry during her employment. While her involvement might
have intensified after the discharge,4 the record does not
specify conduct on her part that would warrant any conclu-
sion that, earlier, she offered affirmative support to organiza-
tion beyond personal execution of an authorization card.
Nevertheless, the General Counsel points to the element of
timing. Lowry was terminated on Friday, December 1. The
General Counsel stresses that this was the final day of the
work week after Lowry was observed by a management rep-
resentative in the presence of union officials. In this regard,
uncontradicted testimony establishes that on Monday, No-
vember 27, union representatives met with Respondent’s em-
ployees outside the courthouse after their shift ended at 10
p.m.5 Lowry, with corroboration from Hessey and Hector
Martinez, testified that she was among 10 employees present
on that occasion. An illiterate in both English and Spanish,
she avers that she on that evening signed a union authoriza-
tion card (G.C. Exh. 2), after it was explained by Martinez,
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Martinez testified that Gatlin was given a copy of G.C. Exh. 3(a), the
Spanish version of the Union’s organizational literature. Hessey states that she
was given the English version. G.C. Exh. 3(h) The variance was taken as in-
significant and of no aid to resolution of the issue of credibility arising from
Gatlin’s denial that she was present on that occasion.
7 Several 8(a) (1) allegations are founded on the premise that Lucy O’Brien
was aware of union activity well prior to December 18. If true, it is fair to
infer that O’Brien would have shared this allegation with Gatlin. The first of
said allegations emerges from an amendment to the complaint naming O’Brien
as having coercively interrogated employees on or about December 1, 2 and
3. In support, a former employee, William Savilla testified that during the first
week in December, O’Brien approached his work area, inquiring as to who
was organizing the Union. According to Savilla, several days later, O’Brien
asked him if he knew who had signed cards. Savilla also testified that O’Brien
told him not to join the Union, because it was bad, it was a lie, it was like
the Communists. Savilla, whose employment terminated when he declined to
return after three successive suspensions for poor work, was an unreliable wit-
ness. He failed to suggest even the slightest involvement in union activity, and
hence his testimony does not illustrate that he was a likely candidate for inter-
rogation on this subject. Finally, important aspects of his testimony collided
with that of other witnesses for the General Counsel, and his accounting re-
flected a perceptible inability to grasp and retell events as they occurred. His
uncorroborated testimony has been discounted in its entirety. The 8(a)(1) alle-
gation based thereon shall he dismissed.
8 Lowry’s testimony in connection with an 8(a)(1) interrogation issue, if be-
lieved, would also support early knowledge on Gatlin’s part. Thus, Lowry
avers that, on November 28, as she was punching in, Gatlin inquired ‘‘what
are you doing with the Union[?]’’ Lowry allegedly replied, ‘‘Nothing.’’ Gatlin
then allegedly asked, ‘‘Did you bring the Union?’’ Lowry replied in the nega-
tive. In addition to asserting that she knew nothing of union activity until De-
cember 18, Gatlin denied ever questioning an employee concerning union ac-
tivity. While I did not believe all that Gatlin had to say, Lowry was a thor-
oughly unreliable witness, whose testimony was not believed unless confirmed
by other believable sources. The 8(a)(1) allegation in this respect is unsubstan-
tiated by credible evidence and it shall be dismissed.
9 Several witnesses for the General Counsel testified that O’Brien was rarely
seen at the courthouse before November 27, but thereafter was present regu-
larly. O’Brien acknowledged that before December 1, she visited the court-
house only occasionally, but that subsequently she did so on a daily basis.
When offered the opportunity to explain this change, she simply replied: ‘‘I
have my reasons.’’ In the circumstances, it is fair to infer that those reasons
related to the discovery of union activity by Gatlin on the previous Monday.
with other information inscribed by a now-discharged co-
worker, Garr.
Lowry, Martinez, and Hessey testified that Proect Super-
visor Gatlin emerged from the courthouse as this gathering
was in progress. Lowry testified that Gatlin headed toward
herself and Hessey, inquiring as to what was happening.
Hessey allegedly replied, ‘‘people were joining the union.’’
The General Counsel’s witnesses uniformly relate that Gatlin
requested and was given a sample of the union’s literature,6
and then left the premises.
The Respondent contends that, if there was such a meet-
ing, no management representative attended or was aware of
it. Gatlin asserts that she first learned that the Union was at-
tempting to organize the Respondent’s courthouse employees
on December 18, almost 3 weeks after the Lowry discharge.7
She testified that, though she used the front entrance regu-
larly, she never observed any group assembled outside in that
area and could recall no one ever identifying himself as a
‘‘union person.’’ She further denies that she at times material
ever requested or obtained union literature. This denial raises
a threshold issue of credibility, for, if true, there would be
no basis for finding, or inferring, that Respondent knew or
had reason to believe, that Lowry was prounion.8 Nonethe-
less, essentially because of my confidence in the testimony
of Martinez, it is concluded that the evidence that Gatlin
walked in on the Union’s November 27 confrontation with
employees was not manufactured. Her denial is rejected.9
On the foregoing, it is found that Gatlin at that time
learned that organization was in progress while observing
Martinez and Lowry, among others, in the presence of union
representatives. However, although Hessey suggests other-
wise, there is no basis for inferring that Gatlin would have
assumed that Lowry was a ring-leader or deeply involved.
Thus, Hessey asserts that when Gatlin approached four or
five employees were present, including Lowry, who was
standing right next to him, ‘‘signing the card.’’ His testi-
mony seemed a bit too pat. It is not confirmed by Lowry,
who states that she was among 10 people standing in a group
with Hessey. According to Lowry, Martinez, who had as-
sisted her in completing her card, was assisting a group of
coworkers to sign cards, about 10 feet distant from Lowry.
She does not testify that she was involved with the card at
that time, and since Hessey does not speak Spanish, there
would have been no reason for her to be completing a card
in his immediate presence. Consistent with this analysis,
Martinez testified that Gatlin appeared as the cards were
being returned to the union representatives. In the face of
this kaleidoscope of testimony, I am unwilling to infer that
Gatlin was in a position to observe that Lowry possessed a
union authorization card.
Concerning the assigned reason for the termination,
O’Brien described Lowry as a lousy employee, whose record
speaks for itself. Gatlin offered that she was a poor worker,
who did not follow orders, obey them, or properly do her
work. Gatlin adds that when she attempted to correct or in-
struct Lowry, she would become talkative and abusive, and
threaten to call her attorney to report that Gatlin was unfairly
giving her too much work.
Prior to discharge, Lowry suffered a well-defined history
of discipline. Her specific problems began 2 months after her
hire. Thus, in January, she called the office to complain that
Gatlin had changed her schedule, giving her too much work
in the form of ‘‘somebody else’s job.’’ She was given the
reprimand as a reminder that Gatlin and her immediate su-
pervisor, Mary Wonson, had authority to change work sched-
ules as they pleased. (R. Exh. 4(a).) Gatlin credibly testified
that Lowry reacted by accusing Gatlin of discriminating
against her. Lowry declined to acknowledge the discipline,
and refused a copy when proffered by Gatlin.
The next incident was triggered by a tenant complaint,
dated August 31, 1989, concerning the failure to dust and
vacuum a particular office in Lowry’s assigned area. (R.
Exh. 4(b).) In addition, an inspection report was offered,
dated August 31, which reflected derelictions in a number
areas, including that of Lowry. (R. Exh. 4(c).) In con-
sequence, Lucy O’Brien, on September 1, performed a per-
sonal inspection at the courthouse, finding that Lowry’s area
was dusty. She therefore instructed Gatlin to discipline
Lowry. A written warning, carrying that same date, was
issued to Lowry for unsatisfactory work. (R. Exh. 4(d).)
Once more, on request, Lowry declined to acknowledge or
accept a copy. According to Gatlin, Lowry argued that Gatlin
was treating her in an unfair, discriminatory fashion. Lowry
afforded no testimony as to this citation.
Lowry’s next infraction resulted in a suspension. On No-
vember 17, an inspection reported cited discrepancies on the
third, fourth, and fifth floors, including the cell block area
for which Lowry was responsible. (R. Exh. 4(e).) At. Lucy
O’Brien’s direction, Gatlin discussed the offenses with all
319C.P.F. CORP.
10 Lowry admits to disobeying an order. However, she claims that her re-
fusal was out of fear of an electrical shock when she was told to vacuum a
wet carpet. Gatlin denied that she would have directed anyone to vacuum a
rug that had just been shampooed. Although Lowry stated that she declined
to sign the warning because ‘‘not guilty,’’ on cross-examination, Lowry added
that she also received this discipline because she told Gatlin that because she
was a boss she did not know ‘‘what work the work of cleaning was.’’ The
latter is reminiscent of several characteristics willingly manifested by Lowry
which tends to support management’s accusations that she was an undesirable
employee. The condescension toward her boss evident in this remark was
matched by her claims that, well before advent of the Union, she was given
too much work, a factor which is hardly inconsistent with the charge that she
did her job poorly. Moreover, her inability, while on the witness stand to abide
by simple instruction and her acute, defensive posture while testifying, are also
in consonance with a traits criticized by Gatlin. In sum, Lowry made a fairly
strong case against herself.
11 Gatlin testified that, prior to November, informal complaints of this kind
were recorded as part of a contest in which cleaners were broken down into
teams. (R. Exh. 7.) She relates that in November the contest ended and there
was no further need to utilize these forms. The forms themselves reflect that
they were used as part of an effort to stimulate competition between groups
and, beyond that, do not suggest that they were maintained as an operational
routine. Weighed in the context of all the evidence bearing on Lowry’s termi-
nation, I credit Gatlin, and in doing so, reject the General Counsel’s arguments
founded on the fact that no similar reports were generated after October 24,
1989.
12 O’Brien in narrating the remarks of Gatlin mentioned that Gatlin referred
to an inspection report showing that Lowry’s area was in bad shape. As
O’Brien confirmed on cross-examination, there was no inspection report per-
taining to Lowry’s work area during that week. O’Brien’s confusion is ex-
plainable. There was an inspection that week, but it was not performed in
Lowry’s area. On arrival, she first inspected areas on the third floor that were
covered by the resulting report. Furthermore, she testified that the discharge
resulted from her personal inspection which confirmed the unofficial com-
plaints that had been received by Gatlin; she at no time testified that Lowry
was terminated because of an adverse inspection report.
13 O’Brien identified Zoila Cribeiro, Maria Ramos, and Maria Cintana as
‘‘on-call.’’ employees used on a supplementary basis to correct deficiencies on
December 1.
14 Lowry testified that prior to December 1, only Mary Wonson had in-
spected her work. Her prehearing affidavit states that Gatlin, as well as
Wonson, did so. As will he recalled, O’Brien, earlier, had inspected her area
following the adverse inspection report of August. 31. In any event, Lowry
would not necessarily be aware of inspections by O’Brien conducted outside
her presence.
15 Wonson was also given a warning because of the discrepancies in
Lowry’s area. (R. Exh. 5.) She did not appear as a witness.
16 Lowry spoke in Spanish and Gatlin indicates that she could not under-
stand what she was saying, but did observe that Lowry spoke ‘‘in a very loud
upsetting tone.’’
17 The parties stipulated that this was the only disciplinary notice in the Re-
spondent’s files which bore O’Brien’s signature. Gatlin acknowledged that
O’Brien’s involvement to this extent was not normal procedure, but, Gatlin ex-
plained that, at the same time, she was ‘‘not normally threatened of suing.’’
18 R. Exh. 4(g). The General Counsel argues that Tovar’s presence had sin-
ister connotations. She was there, according to Gatlin, to inspect payroll and
records. The General Counsel challenges this explanation because the pay pe-
riod would not end until the close of the shift that evening, and hence the
timecards remained inchoate. However, Tovar was not squarely confronted
with the evidence suggesting that she might not have been present for that rea-
son on that occasion, and she was not, in that context, given fair opportunity
to explain her attendance. The abstract questions put to her by the General
Counsel were elliptical and likely to produce an unknowing response. In any
Continued
cleaners involved, including Lowry. In consequence, Lowry
received a written citation, which provided for a 3-day sus-
pension. (R. Exh. 4(f).) Lowry again refused to sign the doc-
ument, accusing Gatlin of being unfair, while asserting that
she was doing her job.10
It is thus apparent that before advent of the Union, Lowry
had been targeted for discipline under conditions totally un-
related to statutory considerations.
As for the events triggering the discharge, Lucy O’Brien
testified that on Lowry’s return from suspension on Friday,
November 24, she manifested a terrible attitude towards su-
pervision, accusing them in face-to-face dialogue, of squeez-
ing her and discriminating against her without recognizing
that she is a good worker. Gatlin adds that during this same
period she was receiving informal notification from tenants
that Lowry’s areas were not being dusted and vacuumed.11
On December 1, O’Brien confirms that Gatlin reported this
by telephone. The latter explained that she sought assistance
from O’Brien, because Lowry had become ‘‘very hostile’’
and had threatened to get a lawyer. As O’Brien recalled,
Gatlin stated in this conversation that she could no longer
tolerate Lowry as she was not performing, while disobeying
orders, making Gatlin look bad in front of other employ-
ees.12 Because certain areas, including Lowry were in bad
shape, with vacuuming and dusting presenting the main prob-
lems, Gatlin requested that O’Brien send additional help to
clean the area, and that O’Brien come to the courthouse to
verify Gatlin’s complaints concerning Lowers work area.
On the evening of December 1, O’Brien, after detailing the
on-call employees,13 departed for the courthouse, arriving
about a half-hour to an hour into the shift. With Gatlin, she
first checked the public bathrooms on the third floor, which
were not part of Lowry’s responsibility, but had been cited
in earlier adverse inspection report. (G.C. Exh. 7.) By then,
the bathrooms had been corrected. They next went to
Lowry’s area, where heavy dust was found all over the fur-
niture, with the carpets spotted and containing dust balls at
the corners.14
A key discrepancy involved an unlocked closet between
two adjoining courtrooms, which, according to O’Brien, had
not been cleaned for days, and was cluttered with cigarettes,
old clothes, paper, food, etc. With this discovery, O’Brien
sent Gatlin to fetch Mary Wonson, Lowry’s immediate su-
pervisor. O’Brien, with corroboration from Gatlin, who had
returned to the area, testified that she confronted Lowry
about the closet, asking, ‘‘Is this the kind of work you do?’’
Lowry responded, ‘‘This is not mine. It is not my area.’’
Lowry shifted the blame to Wonson by stating that she had
not been told to clean that closet. According to O’Brien,
Wonson countered by ‘‘blaming Rosa for not doing her job,
not obeying orders, talking to others all the time, wasting
time, not really doing her work, responding to her every time
she assigned her to do something, or insubordinate to her.’’15
According to Gatlin, Wonson insisted that she had previously
instructed Lowry that the closet was her area ‘‘but that she
was always talking with someone, and not paying attention
to her assigned area.’’ O’Brien related that, as this discussion
ended, Lowry went out of control, calling her a ‘‘stupid old
lady,’’16 and then upbraided Gatlin, stating: ‘‘You discrimi-
nate . . . [against Hispanics] because you are Black and you
favored all the Blacks here.’’
Lowry was then permitted to return to work. Gatlin and
O’Brien repaired to the office and decided on discharge. Be-
cause of Lowry’s charges of discrimination and threat to se-
cure legal counsel, Gatlin requested that O’Brien back her
up. For this reason, O’Brien took the unusual step of joining
Gatlin in signing the discharge letter.17
Shortly after 10 p.m., Lowry was informed of the termi-
nation in the office by O’Brien. Gatlin and Cecilia Tovar, the
Respondent’s secretary, were also present when Lowry was
given the termination letter.18 The stated grounds for termi-
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
event, the absence of a specific, valid reason for her appearance at the terminal
interview warrants no assumption that she was there in furtherance of an un-
lawful scheme.
19 Lowry testified that O’Brien threatened to put her in jail if she refused.
Lowry’s affidavit states that it was she who told the others to call the police
while telling them to put her in jail. Gatlin denied that there was any reference
to the subject of police or arrest in the course of the termination interview.
20 Lowry describes this as an inoffensive Honduran expression.
21 If not hers, there was no attempt to demonstrate just who was responsible
for that area.
22 Lowry testified that Wonson’s instruction related to a single room, while
her affidavit states that Wonson told her to clean the overhead lights on the
entire floor and she refused to do it because it was not her work. In another
contradiction, Lowry testified that O’Brien first asked her if she had cleaned
the lights in room 3120, but then changed her testimony to reflect that O’Brien
instructed her to do so. The General Counsel conceded to the accuracy of testi-
mony by O’Brien and Gatlin that cleaning at levels more than 72 inches above
the ground was performed three times annually, by a fixed, all male crew.
Gatlin credibly testified that she never instructed Lowry, or any other female
employees to clean lights above the 72-inch level. Gatlin also points out that,
during her presence, the subject of high cleaning was not mentioned during
the December confrontation in Lowry’s work area.
23 My disbelief of Lowry runs sufficiently deep to impel rejection of the en-
tirety of her testimony, whether or not contradicted, unless confirmed by other
independent believed sources. Hence, it is unnecessary to comment on every
angle of the plot woven by this thoroughly unreliable witness. It is noted,
however, that, without benefit of Lowry’s testimony, the General Counsel’s at-
tempt to refute the assigned causation is diffused materially. One surviving
consideration is the suspicion generated by the assignment of Zoila Cribeiro
to assist Lowry on the evening of her discharge. Cribeiro is O’Brien’s sister-
in-law. As a part-time employee, she is paid about $450 per week, well above
the scale earned by regular housekeepers. Cribeiro admittedly did not punch
in on December 1. That the Respondent would select one with special status
to assist the very person who would be discharged at shift’s close and who
recently had been seen with union representatives, offers an intriguing coinci-
dence. However, in the face of my belief that Lowry’s ineffectiveness as an
employee was again manifested that evening, far more would he required to
support the inference sought by the General Counsel in her case.
nation were refusal to obey orders and failure to perform
work satisfactorily. Lowry testified that no one read the doc-
ument, and being illiterate she did not know what it said. All
three insisted that she sign.19 Ultimately, Lowry was given
the letter by Gatlin and told she had been fired ‘‘because I
didn’t do my work correctly.’’ Lowry then told Gatlin that
she was being terminated for no reason, going on to tell
Gatlin, ‘‘Now, you eat the hot oil . . . later, you can eat the
boiling oil.’’20 Lowry testified that she told O’Brien that
Gatlin was firing her because she observed Gatlin kissing a
building engineer.
The General Counsel asserts that the incident leading to
the discharge ‘‘appears to have been prearranged.’’ While I
have strong reservations, particularly in the case of O’Brien,
as to the trustworthiness of the Respondent’s witnesses, my
hesitancy in crediting them is overridden by Lowry herself.
Lowry was an impossible witness whose demeanor was suf-
ficiently adverse to undermine any theory advanced in sup-
port of her cause. Apart from the content of her testimony,
itself unacceptable, Lowry’s demeanor reflected defensive
posturing so intense as to confirm the same abiding discom-
fort with reality as she demonstrated in connection with past
discipline, none of which is subject to challenge as pro-
scribed under the Act.
Indeed, this penchant for excuses and deflection again
emerged in Lowry’s account of the events of December 1.
The accusation concerning a table of dust was countered not
by assertion that the incident didn’t happen. Instead, Lowry
spun a wild tale that the table had been cleaned, but then
soiled by O’Brien who reached in a bag, doused her fingers
with something that looked like cigar ash, and then rubbed
her already soiled fingers over the table. She countered the
accusation concerning the uncleaned closet by denial that this
was part of her area of responsibility.21 In addition, she
claims that both Wonson and O’Brien instructed her to clean
overhead lights by climbing on a chair or a table, or as she
imputes to O’Brien, ‘‘Kid, you can put the chair on top of
the table.’’22 Lowry goes so far as to state that O’Brien then
told her that she was ‘‘too short to work for her company.’’
Finally, when O’Brien and Gatlin assertedly told Lowry to
quickly vacuum the room, Lowry complained that the vacu-
um cleaner was defective. According to Lowry, when Lowry
finished, O’Brien became upset, pulling the plug so hard it
bruised Lowry’s fingers. As the capstone, Lowry accuses
Gatlin of terminating her because she was aware that Gatlin
was romancing a building engineer.
One can never consider as free from doubt, a defense pos-
tulated through witnesses whose testimony in other material
areas is deemed incredible. Here, however, the testimony of
Gatlin and O’Brien is confirmed by a back-ground of dis-
cipline having nothing to do with unionization, made more
believable by Lowry’s performance on the witness stand.
Lowry’s excuses that she had ‘‘too much to do’’ and ‘‘that
they gave [her] too much work’’ imply a personal awareness
that she was not performing, either quantitatively or quali-
tatively, to management’s expectations. Beyond that, on scru-
tiny of Lowry’s testimony concerning the events of Decem-
ber 1, factors emerge that suggest that her performance that
evening was just more of the same, and not terribly different
from that which had led to prior citations, including the re-
cent 3-day suspension.23 In sum, Lowry’s own failings as a
witness cause me to swallow hard and accept, in her case,
the testimony of O’Brien and Gatlin, and based thereon to
conclude that she would have been discharged on December
1 even had she not engaged in union activity. Accordingly,
the 8(a)(3) and (1) allegation contesting her discharge shall
he dismissed.
2. Hector Martinez
a. Preliminary statement
In contrast with Lowry, Hector Martinez was the most im-
pressive witness to testify in this proceeding. His employ-
ment with the Respondent ended on December 18, after the
meeting called by the Company to explain its position re-
garding unionization. As already stated, the General Counsel
contends that he was discharged in the course of a heated ex-
change with Lucy O’Brien, in which each acused the other
of lying. On the other hand, the Respondent insists that he
voluntarily quit.
b. The facts and testimony
Martinez was hired on August 5, 1988, and worked con-
tinuously as a cleaner until his termination. During his ten-
ure, he had not a single disciplinary problem. He was super-
vised by Maria Vasquez, who in turn reported to Gatlin. As
shall be seen, when Vasquez signified her intention to quit,
Martinez was the first selected by Gatlin to replace her, with
O’Brien herself making the offer.
Martinez testified credibly that he was personally respon-
sible for the union drive, having made the initial union con-
321C.P.F. CORP.
24 Martinez testified that during the interim between November 27 and De-
cember 18, he engaged in handbilling outside the courthouse and, on about
six occasions, solicited coworkers to sign union cards.
25 This testimony fails to substantiate that the Respondent violated Sec.
8(a)(1) by creating the impression of surveillance. In California Dental Care,
272 NLRB 1153, 1165 (1984), a case cited by the General Counsel, Judge
Jerrold H. Shapiro stated: ‘‘In determining whether an employer created the
impression of surveillance the test applied by the Board is whether, under the
circumstances, the employee would reasonably assume from the statement in
question that the employee’s union activities had been placed under surveil-
lance.’’ Here, Martinez held a firm opinion as to the source of O’Brien’s in-
formation. Thus, his own testimony reveals that he informed O’Brien that she
already was aware of what was going on, a reference reflecting his surmise
that O’Brien was privy to information discovered by Gatlin’s November 27
encounter outside the front entrance of the courthouse. The General Counsel
does not quarrel with the fact that Gatlin’s appearance on that occasion was
perfectly innocent. Thus, her presence, quite properly, was not contested as
proscribed surveillance. Indeed, the Board has recognized that ‘‘it does not
constitute unlawful surveillance or creation of that impression for an employer
to observe that which is plain to see while he is about his usual business or
activities and without his having deliberately and obtrusively placed himself
to spy over his employees’ union activities.’’ Well-Bred Loaf, 280 NLRB 306,
310 (1986). See also Key Food Stores, 286 NLRB 1056 (1982). Gatlin’s
exiting through the entrance customarily used to leave work, made contact
with the union gathering immediately outside inevitable, yet accidental. There-
fore, the confrontation was plainly coincidental. The 8(a)(1) allegation pre-
mised on the assumption that Martinez was led to believe that union activity
was being monitored is unsubstantiated and shall be dismissed.
26 The Respondent in its posthearing brief argues that O’Brien’s credibility
with respect to this conversation is somehow enhanced because the General
Counsel failed to cross-examine Gatlin with respect to this conversation. There
is no merit in this observation. There is no evidence that Gatlin was in a posi-
tion to either hear what O’Brien was saying on the other end of the telephone
or to comprehend her remarks which apparently were in Spanish. Gatlin, on
direct, was not examined as to the content of this conversation, and, hence,
cross-examination on this subject would have been plainly inappropriate.
27 In testifying and in her prehearing affidavit, Tovar denies that she was
present. when O’Brien offered Martinez a supervisory position. Obviously,
Martinez would have had no reason to place an adverse witness on the scene
of this important conversation unless he were certain that Tovar was present.
Here again, the Respondent. argues that the testimony of O’Brien concerning
this incident was somehow enhanced by the failure of the General Counsel
to cross examine Tovar concerning this incident. In this regard, I first note
that the only appropriate area for cross-examination of Tovar was her pres-
ence, and not the content of the conversation between O’Brien and Martinez.
More importantly, I reject, as irrational and unlikely to lead to truth, any no-
tion that an attorney’s failure to question an adverse witness taints primary
evidence he or she has adduced or intends to produce on the particular subject
matter.
28 Gatlin could not recall that Martinez was along that group. She could
identify any the other 10 employees inside the office on that occasion.
tact on November 18, advising union officials that coworkers
wished representation. He was present outside the courthouse
on Monday, November 27, when union representatives had
the opportunity to meet with Respondent’s employees. Mar-
tinez admits that he did not sign a union card at that time,
but urged and assisted others to do so. It has been heretofore
found that Gatlin was in a position to observe his presence
during her brief encounter with Union Representative Hessey
on that occasion.24
Although, as shall be seen, the knowledge defense is not
as compelling as in Lowry’s case, certain independent 8(a)(1)
allegations, while relevant to that issue, are more significant
because of the light they throw on just what transpired be-
tween Martinez and O’Brien on December 18. In that con-
nection, the parties admit that before that date, Martinez and
O’Brien had two conversations. However, O’Brien denies
that the Union was mentioned in either.
As for the first, the General Counsel contends that on De-
cember 7, Lucy O’Brien telephoned Martinez and in the
course of their discussion, interrogated him concerning union
activity, while creating the impression that the activity was
subject to surveillance. Prior to December 7, Martinez had
requested time off during the impending Christmas holidays.
He testified that during their conversation of that date,
O’Brien denied that request, then asked, ‘‘What is knew [sic]
in the courthouse?’’ Martinez claims to have replied that he
could add nothing to what she already knew. According to
Martinez, she then stated ‘‘that she knows some people who
had been standing in front of the courthouse, and that these
people were members of the union.’’25 She went on to state,
that since Martinez was a good worker, she wanted to ask
how many signed union cards. Martinez denied knowledge.
In contrast with his account, O’Brien denied that the Union
was even mentioned at that time.26
The second conversation took place on December 14. The
General Counsel contends that, during the course thereof,
O’Brien violated Section 8(a)(1) by offering financial bene-
fits and a higher position to Martinez in exchange for his
abandonment of the Union. Although the testimony is in con-
flict, under either version, this exchange covered the topic
which triggered the employment-ending argument that erupt-
ed on December 18 between O’Brien and Martinez.
By way of background, it is noted that, prior to December
14, Maria Vasquez, an assistant supervisor, had signified her
intention to quit. Martinez was the first to be offered pro-
motion as her replacement. Thus, he testified that O’Brien,
in company with Respondent’s secretary, Cecilia Tovar, con-
fronted him in his work area, declaring that she had come
to make him an offer. She allegedly stated that she wished
to make him a supervisor, enabling him to earn up to
$36,000 annually. She added that she could provide help if
Martinez wished to buy a house or car. She then expressed
that this was subject to a single condition, i.e., he should not
sign a union card. Tovar commented that the offer was a
good one. O’Brien said that she needed an answer that
evening. Martinez said he had to think it over, but never did
respond.
O’Brien offered the following version:
You have been recommended by your superiors that
you would be a good candidate to perform this work,
to be trained and learn how to do it, and one of the fact
is that you speak both languages, and you can help us
a lot if you really learn how to do the work, and of
course you will make more money, and you will be in
a better position with the company.
O’Brien denied mentioning $36,000, and that she was aware
at the time of union activity or that Martinez favored the
Union, hence, by implication denying that the offer was
made contingent on union activity.27
On December 18, at about 5:40 p.m., a group consisting
of Hessey and Ramiro Salinis, another union representative,
and about 15 to 20 employees assembled on a the basement
level. Ten minutes later, most of this group departed for
Gatlin’s office, with about 10 to 20, including Martinez, ac-
tually entering.28 Hessey presented Gatlin with a formal de-
mand for recognition, explaining that a majority of employ-
ees had signed authorization cards indicating their preference
for union representation. According to Gatlin, as he enterred,
she was on the telephone with O’Brien. She described his
manner as demanding, authoritative, and unfriendly. Hessey
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 Savilla testified that O’Brien stated, ‘‘I want to thank Hector for having
informed that the union is going to come.’’ Alvarez’ version was slightly dif-
ferent. She testified that O’Brien thanked Martinez because ‘‘he had informed
her that . . . [employees] wanted a union.’’ While I do not regard these vari-
ations as terribly consequential, the ultimate credibility resolution is made not
because of corroboration, but on the strength of my belief of Martinez, who
struck me as the only witness presented that did not betray the oath in critical
areas.
30 Michael O’Brien, who sat through the entire hearing was not called.
Gatlin, who could not understand what was said, because the argument was
waged in Spanish, also could not hear it as she was in the office. Tovar also
claimed that she remained in the office.
31 In its posthearing brief, counsel for the General Counsel moves to correct
Sampedro’s testimony, by substituting ‘‘ma’am’’ for the term ‘‘man’’ as it ap-
pears in this transcript quote. The request is denied. Neither my notes, nor
recollection confirm that the official record is inaccurate. Moreover, it is not
inherently in error, for the term ‘‘man’’ in argumentative street vernacular is
often used without regard for the gender of the person addressed.
32 Sampedro first testified that Martinez used the expletive ‘‘bitch liar,’’ but
when questioned as to the Spanish term actually used, he conceded that it was
‘‘bruja’’ meaning ‘‘witch’’ not bitch. Moreover, although he claims that he di-
rected Michael O’Brien to remove his wife because he was afraid for her safe-
ty, a few minutes later, Martinez passed him in the corridor, headed for the
office, yet Sampedro did nothing to stop him.
33 The bypass of the timeclock seems more in keeping with a discharge than
a voluntary quit.
spoke to O’Brien, who accused him of interfering with em-
ployees’ reporting for work. Hessey denied this, pointing out
that it was only 5:55 p.m. Before leaving, Hessey warned
Gatlin that the Employer had an obligation to honor the
rights held by employees under the National Labor Relations
Act.
At 7:30 p.m., employees, having been pulled off their
work, were called to meet with company officials in the
basement locker room. On behalf of management, those
present included Enrique Balseiro, the Company’s attorney;
Jose Sampedro, the Respondent’s president, and Lucy and
Michael O’Brien. Balseiro spoke first, addressing certain
issues raised by unionization, and explaining that the contract
at the courthouse would expire in May, and that renewal
thereof would raise wage rates to $6.01 per hour. He also
mentioned that the issue of union representation could be re-
solved by a secret ballot election under auspices of the Na-
tional Labor Relations Board. Balseiro ended his talk, ex-
pressing that the Respondent did not oppose the Union, but
the employees should think it over because the Union would
not always keep its promises. Lucy O’Brien then spoke,
making the same points as Balseiro. She then ended the
meeting, and most of the employees began returning to work.
It was during this transition that the critical dispute erupt-
ed between Lucy O’Brien and Martinez. He testified, with
corroboration from former employees, William Savilla and
Consuelo Alvarez, that O’Brien, at this juncture, stated loud-
ly and nervously that she wished to thank Martinez for assur-
ing her that a majority of employees had signed cards.29
Martinez interjected, ‘‘that is a lie,’’ explaining that he had
not told her how many had signed. O’Brien then stated that
the meeting was over. However, Martinez then stated that he
wished to announce to all his coworkers that O’Brien offered
him $36,000, if he declined to sign a union card. She became
enraged, calling Martinez a liar, while stating, ‘‘For what
you have just said you are now fired.’’ Savilla and Alvarez
also testified that O’Brien stated that Martinez had been
fired. The confrontation ended when Michael O’Brien en-
tered the locker room and removed Mrs. O’Brien, escorting
her to the office.
By way of defense, Lucy O’Brien insisted that Hector
Martinez quit and also asserts that as of December 18, she
was unaware that he was prounion. Gatlin testified that, to
her knowledge, Martinez, before his employment ended
never revealed his union sentiment and it was unknown. She
avers that prior to the meeting in question, but on that very
day, Martinez thanked her for offering the supervisor posi-
tion, but declined on the ground that too much responsibility
was involved.
Concerning the subsequent argument, O’Brien testified that
after she ended the Company’s meeting, approximately 14
employees remained in the locker room. As O’Brien was
talking to Vasquez, Martinez passed by, and O’Brien took
the opportunity to thank him for responding to the promotion
offer, as he had done earlier. It is the sense of her testimony
that this innocent remark sparked an emotional explosion on
Martinez’ part. Thus, he allegedly shouted at O’Brien,
‘‘Don’t talk to me,’’ while calling her a ‘‘big so-and-so
liar.’’ He accused her of buying him out, offering $36,000.
Lucy O’Brien thought he was ‘‘crazy’’ as the accusations
were untrue and she did not know what Martinez was talking
about. His rage next carried him to scream, ‘‘I am quitting,
and I can’t take this.’’ Her husband, as Martinez pounded on
the table, screaming, escorted her from the room and they
went to the office. She denied that she fired Martinez.
Jose Sampedro, the Respondent’s president, was the sole
witness called by the Respondent who claims to have been
in a position to corroborate Lucy O’Brien’s testimony as to
what took place in the locker room.30 He testified that he
was outside in the corridor, talking to Michael O’Brien when
he heard someone shout aloud, ‘‘You are a liar. I am quit-
ting.’’ When he looked inside, he saw Martinez nearing
O’Brien, saying, ‘‘No, man you’re a liar.’’31 O’Brien then
countered, ‘‘No, the one who is lying is you.’’ Martinez al-
legedly moved more closely to her, raising his hands, and
calling her a ‘‘witch’’ liar.32
The dispute concerning the locker room exchange is shad-
owed by the Respondent’s testimony that Martinez again de-
clared that he was quitting after changing clothes and at-
tempting to leave the premises. In this respect, Martinez de-
scribed his action as limited to changing clothes, and then
delivering his uniform to Gatlin. He then went to the office
to punch out, but was not allowed to enter, being instructed
by Michael O’Brien to just leave. In contrast, O’Brien testi-
fied that, at the time, Martinez knocked on the door, and was
allowed in the office. She claims that, when Martinez at-
tempted to punch his card, she stated it was unnecessary.33
With corroboration from Cecilia Tovar, O’Brien related that
Martinez then gave Gatlin his uniform and some equipment,
stating, ‘‘I am quitting.’’ Gatlin, however, offered a some-
what different account:
Q. Do you recall anything else of significance that
happened that night?
A. Yes. While the three of us was in the office,
[Lucy O’Brien, Cecilia Tovar, and Gatlin] someone
knocked at the door, and I opened the door and it was
Hector. He gave me his uniform, and he was going to
punch his card, but Lucy told him that it was not nec-
essary for him to punch his car.
Q. Is that. all you remember?
323C.P.F. CORP.
34 The testimony of Gatlin and O’Brien was hardly enhanced by their mutu-
ally corroborative attempt to demean Martinez’ competence as an employee.
Initially O’Brien offered faint praise, rating him as just ‘‘fair.’’ She later indi-
cated that the Company’s practice is to promote from within based on super-
visory recommendation of responsible employees. She admits that Martinez,
out of 55 to 60 employees, was the first of only three employees offered the
supervisory position that Maria Vasquez would soon vacate. Ultimately,
O’Brien admitted that in her opinion Martinez was a good employee. Gatlin
danced this same ‘‘tight-rope,’’ describing Martinez as just an ‘‘average’’ em-
ployee who did what he is told, ‘‘but does not ask for extra work whenever
he is finished with his job.’’ Gatlin could name only three employees who she
considered above average, not one was a full-time employee. Finally, Gatlin
admitted that in this industry it is difficult to find people that do as they are
told, and agreed that those that do are ‘‘above average.’’
35 While it might be said that an employer has a ‘‘legitimate interest’’ in
finding out whether its employees have been contacted by a union, caution
must be exercised where employees are tapped for such information. In those
circumstances, any ‘‘tendency’’ to restrain and coerce will substantiate illegal
activity. In this instance, the inquiry was made by a high ranking management
official, whose stature in the Company would be elevated it the eyes of em-
ployees by her infrequent visits to the jobsite. In questioning Martinez,
O’Brien transcended any quest for generalized information by seeking to re-
duce him to an informant on the protected activities of others. As the Union
had made no claims on the Respondent, Martinez would rightfully labor under
the apprehension that management wished to identify union adherents in order
to carry forth a plan of reprisal. In my opinion, such an inquiry, prior to any
demand for recognition, by one who carried the weight of Mrs. O’Brien was
enshrouded with pressure and unlawful under the standards established in
Rossmore House, 269 NLRB 1176 (1984), and Sunnyvale Medical Clinic, 277
NLRB 1217 (1985).
36 O’Brien was given the opportunity to surmise concerning Martinez’ moti-
vation. Her response produced another inconsistency between the Respondent’s
witnesses and in any event failed to lend plausibility to her account. Thus, she
suggests that Martinez might have been angered by the fact that her remark
made others aware that he had been offered a job with management. Con-
sistent therewith, it was her hypothesis that she was accused of lying as an
attempt by Martinez to deflect attention away from the fact that he had been
offered the supervisory post. However, she concedes that this offer was no se-
cret. Moreover, any sensitivity on Martinez’ part is betrayed by O’Brien’s tes-
timony that it was he who drew attention to her offer by accusing her of an
attempt at ‘‘buying him out.’’ It is in this same area that Sampedro’s credulity
was seriously compromised. Despite O’Brien’s struggle on the witness stand
for an explanation as to what might have provoked Martinez, Sampedro testi-
fied that she had previously discussed this subject with him. However, he
claims that on that occasion O’Brien had articulated an entirely different the-
ory. Thus, Sampedro related that she had told him that Martinez made this
accusation because she denied having offered him $36,000 in salary with as-
sistance if he wished to buy a car and a house. It was my distinct impression
that O’Brien, on being examined in this regard, was taken by surprise, and
had not given thought to the motivation issue that arises from her story.
Sampedro’s testimony impressed as a false attempt to bootstrap a fundamental
flaw in O’Brien’s account. Unfortunately, it is difficult to reconcile with her
explanation, hence, creating another flaw. He, too, basically was an
untrustworthy witness.
37 I note with interest a key omission in the Respondent’s posthearing brief.
At p. 7, the Respondent.’s counsel chronicles the December 18 confrontation
between Martinez and O’Brien. Despite the latter’s testimony that Martinez
opened the incident by calling her a ‘‘liar’’ and reiterated this term as the ar-
gument escalated, it goes unmentioned in briefing the incident, with counsel
settling for less offensive remarks attributed to Martinez. Ordinarily, to scold
one’s boss publicly as a liar is an act of sufficient scurrility to evoke exhaus-
tive discussion by management counsel. Neglect of this prominent aspect of
the case against Martinez is not lightly dismissed as an innocent act of over-
sight.
38 Although the Respondent asserts that it is preposterous that Martinez
could earn $36,000 annually, exaggeration is not alien to the ordinary process
of inducement whether the context be a sale, offer of marriage, or abandon-
ment of a union. Thus, contrary to the Respondent, this allegation does not
turn on whether the Respondent could deliver, but whether O’Brien resorted
to this form of puffery in the effort to lure Martinez away from the Union.
In this respect, O’Brien concedes that Martinez referred to the $36,000 figure
and offers of assistance in purchasing a home and automobile during the De-
cember 18 confrontation. Her admission to having made the offer of home
buying assistance on December 14 demonstrates that, for some undisclosed
reason, O’Brien was willing to go beyond benefits inherent in the supervisory
position to simulate Martinez’ interest As for the $36,000, this figure was ei-
ther distorted, misunderstood, or a consequence of miscommunication. How-
Continued
A. And when he gave me his uniform, and I had al-
ready asked him was he going back to work, and he
said he was leaving, and when anyone give me their
uniform, they are quitting.
Q. Did you actually hear him say in English, ‘‘I
quit.’’
A. No.
Thus, Gatlin, rather than testify that Martinez said he was
quitting, preferred a tortured construction of his actions
which she first swore was indicative of a quit. She later
would admit that Martinez would have acted no differently
if discharged.
c. Conclusions
As heretofore stated Martinez impressed as the most reli-
able witness in this proceeding. Gatlin’s testimony that she
did not encounter union representative Hessey on November
27 or learn at that time that organization efforts were under-
way has been rejected.34 Instead, it is concluded that the in-
formation she acquired at that time, obviously, would have
been relayed to O’Brien. This inference is bolstered by my
belief of Martinez’ testimony that O’Brien in their December
7 telephone conversation referred to the November 27 court-
house incident, albeit obliquely, and interrogated him at that
time as to who had signed authorization cards, conduct
which in the circumstances, was coercive, and violative of
Section 8(a)(1).35
O’Brien’s version of the December 18 confrontation
makes little sense. She describes Martinez as first having ex-
pressed gratitude for the offer of promotion, while rationally
affording a reason for declining, but then, with no provo-
cation whatever, and without reference to the Union or to
any statements made by O’Brien, branding her a liar, while
unleashing a verbal assault, including actions which she
deemed physically threatening. Her version facially offers no
clue as to what might have inspired Martinez to such vicious
behavior toward his employer on the heels of nothing more
than a temperate expression of management’s views on the
Union, and as she simply offered a gracious ‘‘thank you’’ for
responding to the promotion offer. Her testimony fails to
offer any rational explanation for his calling her a ‘‘liar,’’36
or the manifestation of temperament which, from my impres-
sion of Martinez, seemed totally out of character. On the
other hand, O’Brien struck as emotionally volatile, and not
for a moment would I harbor the thought that an opportunity
to quit might survive the open challenge in front of others
that she attributes to Martinez.
Unlike the questions raised by O’Brien’s testimony, Mar-
tinez’ version ties together logically. It is only natural that
Martinez would have reacted with angry denial when
O’Brien, in effect, suggested, in front of coworkers, that he
had served as a ‘‘pipe line’’ used by management to accumu-
late information concerning union activity.37 It is perfectly
plausible that Martinez would strike back to restore his credi-
bility in the eyes of his peers by first calling O’Brien a liar,
and then exposing that O’Brien on December 14 had sought
to induce him to turn his back on the Union in exchange for
promotion, opportunity for enhanced earnings, and help if he
sought to purchase a home or car.38 He was believed over
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever, it is not necessary to decide just what occurred, for none of the possibili-
ties shake my confidence in Martinez and my belief that he would not have
mentioned it on December 18, absent a sincere belief that it had been offered.
More importantly, based on his testimony, I find that the offer extended by
Lucy O’Brien on December 14 was made on the express condition that Mar-
tinez not sign a union card. Accordingly, the Respondent thereby violated Sec-
tion 8(a)(1) of the Act.
39 In crediting Martinez, it is concluded that, having been discharged by
O’Brien earlier, consistent with Gatlin’s eventual testimony, there was no rea-
son, and he did not, in turning in his uniform, announce that he was quitting.
40 As shall be seen, infra, the conduct of Martinez on December 18 would
not impair the appropriateness of the conventional reinstatement and backpay
remedy. I would further note that considering the provocation on O’Brien’s
part and the protected nature of Martinez’ actions, any disrespect manifested
on his part would not, in the circumstances, remove the protective mantle of
the Act. See, e.g., Thor Power, 148 NLRB 1379 (1969), enfd. 351 F.2d 584,
587 (7th Cir. 1965); Model A & Model Motor Car Corp., 259 NLRB 555 fn.
4 (1981).
41 As correctly observed by the General Counsel, Sampedro’s own testimony
is to the effect that, shortly after this confrontation, he allowed Martinez to
pass him in the corridor, en route to the office where O’Brien, in company
of two other women, was located.
42 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 objec-
tions to them shall be deemed waived for all purposes.
all of the Respondent’s witnesses to the incident.39 More-
over, as his discharge was actuated by dispute which cen-
tered on union activity, while triggered by O’Brien’s accusa-
tion that Martinez was a management source as to such mat-
ters, the latter’s entire involvement was protected by the
Act,40 and his discharge in consequence, violated Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Service Employees International Union, Local No. 525,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
interrogating an employee concerning union activity and by
offering promotion and other financial inducements to influ-
ence an employee to refuse to support the Union.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by, on December 18, 1989, discharging Hector Martinez
because of his union activity.
5. Except as defined in paragraphs 3 and 4 above, the Re-
spondent did not engage in any of the unfair labor practices
set forth in the complaint.
6. The unfair labor practices found above have an effect
on commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom, and to take certain af-
firmative action deemed necessary to effectuate the policies
of the Act.
In the case of Martinez, the Respondent opposes any rem-
edy on grounds that after the discharge, beginning on De-
cember 18, and extending into January 1990, Martinez en-
gaged in a pattern of misconduct towards Lucy O’Brien
which disqualified him from future employment. In this re-
spect, O’Brien testified, with support from Sampedro, that
during the December 18 outburst, Martinez approached her
in menacing fashion, placing her in fear. He allegedly moved
towards her, shouting, while raising his hands. I have already
discredited her basic account of her confrontation with Mar-
tinez, while deeming Sampedro’s attempt at corroboration
equally unreliable.41 Furthermore, the conduct she describes,
according to her own testimony, would have occurred as her
husband, a much larger man than Martinez, stood in the
doorway. To this same end, O’Brien also cites postdischarge
incidents, all occurring at the courthouse. O’Brien claims that
the first occurred just before Christmas, at about 6:30 p.m.
She claims that when Martinez observed her, he grew nerv-
ous and very ‘‘abnormal,’’ making a fist and admonishing
her that she would pay for this. On another occasion, she
avers that Martinez inspired another individual to photograph
her at close quarters, while referring to O’Brien as a son-of-
a-bitch, with the picture shot at a point so near that O’Brien
claims to have been blinded by the flash. She further avers
that Martinez addressed another employee, Gudella Quiteres,
calling her a Mexican son-of-a-bitch, while stating she would
pay for this, ‘‘If you are not aligned to us, you are going
to be in trouble.’’ I credit Martinez’ denials and find that all
were created by O’Brien in a contrived attempt to block rein-
statement of this prounion employee.
Thus, it having been found that the Respondent T & C
discharged Hector Martinez in violation of Section 8(a)(3)
and (1) of the Act, it shall be recommended that the Re-
spondent be ordered to reinstate his to his prior position and
lake him whole for earnings lost by reason of the discrimina-
tion against him. Backpay due under the terms of this order
shall be computed on a quarterly basis as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and shall be reduced
by net interim earnings, with interest computed as specified
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended42
ORDER
The Respondent, C.P.F. Corporation, Washington, D.C., its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning union
activity.
(b) Promising benefits to employees to influence them
against supporting a union.
(c) Discouraging union membership by discharging, or in
any other manner discriminating with respect to wages,
hours, or other terms and conditions or tenure of employ-
ment.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Hector Martinez immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against him in
the manner set forth in the remedy section of the decision.
325C.P.F. CORP.
43 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
(b) Remove from its files, delete, and expunge any and all
reference to the unlawful discharge of Hector Martinez, noti-
fying him that the action has been taken, and that the termi-
nation will not be used against him in the future.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its offices and facilities in Washington, D.C.,
copies of the attached notice marked ‘‘Appendix.’’43 Copies
of the notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent’s authorized
representative, shall, be posted by the Respondent imme-
diately on receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall he
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.