ESS Support Services Worldwide, Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 3, 2008

24-CA-010874 (N.L.R.B. Oct. 3, 2008)

JD(ATL)–30–08
Christiansted, St. Croix USVI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
COMPASS GROUP USA, INC.
d/b/a ESS SUPPORT SERVICES
WORLDWIDE, INC.
and CASE 24–CA–10874
UNITED STEELWORKERS,
LOCAL 8248
Jose L. Ortiz Marciales, Esq., for the
Government.1
George Aude, Esq., for the Company.
DECISION
Statement of the Case
WILLIAM N. CATES, Administrative Law Judge. This is a wrongful discharge
case. I heard this case in trial in Christiansted, St. Croix USVI, on July 22 and 23, 2008. The
case originates from a charge filed by United Steelworkers, Local 8248, on March 4, 2008.
The prosecution of the case was formalized on June 26, 2008, when the Regional Director for
Region 24 of the National Labor Relations Board (Board), acting in the name of the Board’s
General Counsel, issued a Complaint and Notice of Hearing (Complaint) against Compass
Group USA, d/b/a ESS Support Services Worldwide, Inc. (Company).
It is alleged that Company employee Lillia Greene concertedly complained on
February 11, 2008, to the Company regarding wages, hours, and working conditions of the
Company’s employees by complaining about the Company’s selection for the Employee of
the Year Award. It is alleged the Company discharged Greene on February 14, 2008, because
she engaged in protected concerted activity as well as joined or assisted the Union and to
discourage employees from engaging in these activities. It is alleged the Company’s actions

1 I shall refer to Counsel for General Counsel as Counsel for the Government or Government.
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violate Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (Act).
The Company, in a timely filed answer to the Complaint, denied having violated the
Act in any manner alleged in the Complaint.
The parties were given full opportunity to participate, to introduce relevant evidence,
to examine and cross-examine witnesses, and to file briefs. I carefully observed the demeanor
of the witnesses as they testified. I have studied the whole record, the posttrial briefs, and the
authorities cited therein. Based on more detailed findings and analysis below, I conclude, and
find, the Company did not violate the Act by discharging Greene.
Findings of Fact
I. Jurisdiction, Labor Organization Status, and Supervisor/Agency Status
The Company is a United States Virgin Islands corporation with an office and place of
business in Christiansted, St. Croix, USVI, where it is, and has been, engaged in the business
of providing food and facility maintenance services at HOVENSA, an oil refinery located in
St. Croix, USVI. During the past calendar year, a representative period, the Company
purchased and received at its above-described location goods valued in excess of $50,000
directly from points outside the United States Virgin Islands. The evidence establishes, the
parties admit, and I find, the Company is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
The parties admit, and I find, the Union is a labor organization within the meaning of
Section 2(5) of the Act.
It is admitted that District Regional Manager Stephen Chasteen, General Manager of
the HOVENSA Project Lawrence Steward, Regional Labor Relations Manager Iris Acosta,
Human Resources Manager Cheryl Lipps, Human Resources Advisor Gina Paige, Kitchen
Supervisor Margaret Liburd, Project Manager Gordon Corny, Janitorial Operations Manager
Gene Scarborough, and Porta Camp Project Manager Jeff Logan are supervisors and agents of
the Company within the meaning of Section 2(11) and (13) of the Act.
II. Alleged Unfair Labor Practices
A. Facts
1. Background
The Company, according to General Manager of the HOVENSA Project Lawrence
Steward, is owned by Compass Group U.S.A. and is part of the Trinity Services Group. The
Company provides basic services for other employers such as food, beverages, laundry,
building maintenance, upkeep of facilities, grounds keeping, and housekeeping. The
Company operates various remote site camps providing these services throughout North
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America, Russia, Alaska, the Pacific Island of Johnston Atall, and St. Croix, USVI.
The Company began operating in St. Croix, USVI (the only site involved in these
proceedings) on December 27, 2004. The Company provides certain services for the Hovensa
Oil Refinery, a large oil refinery facility located in Christiansted, St. Croix. The Company
utilizes approximately 65 employees to perform the services contracted for by Hovensa Oil
Refinery. The Company services provided to Hovensa include operating a full service
cafeteria in the Hovensa Administration Building; a catering service to send “supplies out into
the field;” a convenience store; and, all janitorial services for Hovensa. The Company also
operates a housing facility (dormitories) with 249 beds for certain employees of Hovensa Oil
Refinery. The services provided to those living in the dormitories include food services,
personal laundry, maintenance on the buildings, housekeeping and grounds maintenance.
Prior to the Company bidding for and receiving the services contract with Hovensa Oil
Refinery, those services had, for a number of years, been provided by American International
Products. The employees of American International Products were represented by the Union.
Additionally, the employees of Hovensa Oil Refinery have been represented by the Union for
some 40 years. The Company bid the services contract with Hovensa Oil Refinery as a union
job. Hovensa Oil Refinery asked the Company to hire the previous service company’s
employees. However, Hovensa Oil Refinery implemented a competency test for its, as well
as, all service contractor employees at the time the Company bid for the project herein. As a
result of the independently administered competency tests the Company, according to General
Manager Steward, was precluded from hiring a majority of the previous contractors
employees when it commenced operations in 2004. The Union did not demand recognition,
but rather over the next years petitioned for Board conducted elections on three separate
occasions. The Union’s first petition was filed June 22, 2005, and the election was held on
September 1, 2005. The Union’s second petition was filed on October 24, 2006, and the
election was held on November 28, 2006. The Union’s third petition was filed on January 15,
2008, and the election was held on February 26, 2008. The Union lost all three elections and
those results were certified without objections being filed by the Union.
General Manager Steward testified the Company instituted Employee of the Year
Awards over 2 years ago with two series of such awards having been given and the Company
is at about the half way mark in selecting employees for its next Employee of the Year
Awards. It appears an Employee of the Year Award is given to employees from three job
divisions of the Company, namely, the kitchen employees (the group at issue herein) as well
as the janitorial employees and the housing facility (dormitories or porta camp) employees.
Prior to the Employee of the Year selections, the Company has Associate (or Employee) of
the Month Awards based on attendance, a willingness to help out and whether there have been
any problems during the month with other associates (or employees). The monthly award
recipients are eligible for Employee of the Year Awards.
The Company held its annual employees’ appreciation party at the Divi Carina Bay
Resort in the Virgin Islands, on February 8, 2008, with estimates ranging from 80 to 200
persons in attendance. Certain of those present from the kitchen staff and setting at the same
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table in the back of the room were; kitchen cook Lillia Greene, kitchen helper Carmen
Walters, kitchen cook Angie Santiago, kitchen helper Sharon Richardson, catering employee
Kimanee Duet, and, store clerk/kitchen helper Veronica Smithen. Also setting in the back of
the room, but at a different table, was kitchen dishwasher Margaret Thompson. As the
evening progressed, the Company indicated it was time to announce the Employee of the Year
recipients and started to show a video of all employees that had been Employee of the Month.
As the video started, dishwasher Thompson moved toward the front of the room to better
view the video screen. Pertinent to the case herein, it was announced that dishwasher
Thompson had been selected as Employee of the Year for the kitchen staff.
2. Government’s Evidence
Kitchen cook Greene testified that when Thompson’s name was announced as
Employee of the Year for the kitchen, everyone at Greene’s table laughed and Greene stated
“She (Thompson) don’t deserve Employee of the Year. That’s a cheat.” Greene added she
needed “to go get me a drink” and did after the announcement.
On Monday, February 11, 2008, Greene and others reported for work at around 6 a.m.
as usual. Greene and others had an exchange with District Regional Manager Stephen
Chasteen in the kitchen area at Hovensa Oil Refinery. Greene testified cook James Chapman,
assistant cook Wanda Lopez, cook Angie Santiago and kitchen helper Veronica Smithen were
together when District Region Manager Chasteen approached and asked Chapman why he
was not at the Company employee appreciation party. Greene testified Chapman and she
laughed and Chasteen wanted to know why. Greene explained Chapman did not attend the
party because he was disappointed in his recent evaluation. Greene then added “a lot of
people won’t come to your party next year because they were offended at who you chose for
Employee of the Year.” Greene testified Chasteen wanted to know what the problem was that
the employees had chosen the Employee of the Year. Greene responded that was not so and
Chasteen said they would talk about it later since it was almost 6:30 a.m. and the cafeteria was
opening. Kitchen helper Smithen recalled the meeting in the same way as Greene adding
“you know, we told him … it was unfair … we thought Mr. Chapman was the one that was
supposed to win the Employee of the Year, because he’s a team player and he helps
everybody and stuff like that, yeah.” Smithen further explained that she, Greene, and
Chapman brought to Chasteen’s attention their concerns about the Employee of the Year
process because Chasteen asked them. Kitchen helper Lopez recalled Chasteen asking
Greene if she liked the party and Greene said she did but ‘[t]he only thing she didn’t was Ms.
Thompson got Employee of the Year.”
Greene testified District Regional Manager Chasteen along with Human Resources
Advisor Gina Paige and Regional Labor Relations Manager Iris Acosta met with she,
Veronica Smithen, Angie Santiago, and Sharon Richardson that afternoon (February 11,
2008) in the auditorium at Hovensa Oil Refinery. Chasteen asked the employees why
Thompson did not deserve the Employee of the Year Award. Greene said they told District
Regional Manager Chasteen they were told Employee of the Year Awards were to be given to
those who went all out for the Company. Greene testified Chasteen said they had chosen
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Thompson “because she has been in the dish room and nobody don’t hardly see her.” Greene
said they responded that was not a reason to choose someone as Employee of the Year.
Greene specifically told Chasteen that James Chapman should have been the Employee of the
Year for the kitchen. Greene testified Santiago stated Thompson should not have won the
Employee of the Year Award that it should have been someone else. Greene testified
Smithen told District Regional Manager Chasteen who she thought should have won
Employee of the Year. According to Greene, Chasteen continued to state Thompson was
chosen because she had been in the dish room and he was not changing his mind. Greene said
the meeting then turned to other matters.
Greene testified that about 9 a.m. the next day, February 12, 2008, she and kitchen
helper Wanda Lopez, dishwasher Margaret Thompson, Carmen Walters, kitchen helper
Veronica Smithen, assistant cook Dienerca Ferre and James Chapman were going about their
daily chores. Chapman and Lopez were preparing hamburgers and chicken, Smithen was
preparing “stuff” for the (c-store) convenient store, Ferre was washing potatoes, Greene was
preparing tuna for the deli and Thompson was washing and rinsing dishes.
Greene testified that while she was preparing the tuna and talking with her co-workers,
she carried a serving spoon to the back sink area to be washed. She said she approached the
sink wash area where Thompson, with her back to her, was washing dishes. Greene did not
speak to Thompson, but, did notice there were dishes in the area along with a sheet pan with a
“little bit of grease inside of it.” Greene testified, “I tossed the spoon on the sheet pan …
continued talking to my co-workers and then went to pick up my bowl of tuna and go to the
deli area.”
Kitchen helper Veronica Smithen testified that when Greene finished preparing tuna
on the morning of February 12, 2008, she took a serving spoon to the dish area and tossed it
on a sheet pan and walked away. According to Smithen, Greene did not say anything to
dishwasher Thompson. Smithen said Thompson called out to Greene one time in a soft voice
but she did not hear Greene say anything about wanting Thompson to return from her
Employee of the Year Award trip to Alaska in a body bag. Kitchen helper/dishwasher Lopez
testified that after Greene tossed the spoon on the sheet pan, Thompson called out Greene’s
name two times but Greene kept walking away. Lopez did not hear Greene say anything to
Thompson. Lopez said approximately 30 minutes later she saw Thompson go and speak with
Kitchen Supervisor Liburd.
Greene testified Kitchen Supervisor Liburd came to the deli line around 10 a.m. on
February 12, 2008, and asked “what happened to Ms. Thompson?” Liburd told Greene
Thompson had said Greene threw a spoon at her and oil splattered on her. Greene told
Supervisor Liburd that she went back to Thompson’s area and “tossed a spoon on the sheet
pan, but no oil splashed like she (Thompson) said happened.” Greene said Liburd “watched
me and started to laugh and then walked off.”
Greene testified that about 15 minutes later on February 12, 2008, District Regional
Manager Chasteen called her to his office where he asked about the incident between she and
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Thompson. Greene told Chasteen there was no incident that she went back to Thompson’s
area and tossed a spoon on a sheet pan. Greene added she was now all of a sudden being
accused of splashing oil on Thompson. Chasteen told Greene she had potential with the
Company and for her to go and apologize to Thompson. Greene asked where Thompson was
and was told she was in the dining area with Janitorial Operations Manager Gene
Scarborough. Greene went to Thompson and told her “I heard that when I tossed the spoon
on the sheet pan oil splashed on you, so I came to apologize because it wasn’t like I did it
intentionally.” According to Greene, Thompson said she did not want her apology because
she had heard Greene had been talking about her on Monday. Greene said she left Thompson
after that.
Greene testified that a few minutes after she left Thompson, District Regional
Manager Chasteen came to where she was in the dining room and asked if she had “ever said
that Ms. Thompson should go to Alaska and come back in a body bag, and if I said Margaret,
do you want to go to Alaska and the plane should crash?” Greene told Chasteen it had gone
from her tossing a spoon to killing somebody. Greene asked Chasteen who told him. He said
he could not say but added he was going to go to the kitchen and find out if anyone heard
about it. Chasteen left Greene at that time. Greene denied making the body bag comments.
Greene testified that around 11 a.m. on February 12, 2008, District Regional Manager
Chasteen came to the deli line and asked her to meet with him in the auditorium. Already in
the auditorium were Human Resources Manager Lipps, Human Resources Advisor Paige, and
Regional Labor Relations Manager Acosta. Greene testified Chasteen asked her to tell them
what happen with she and Thompson, which she did. Chasteen then told her to tell him the
truth that she did not have to lie. Greene responded she had no reason to lie and he could ask
anyone in the kitchen and they would tell him that if Greene did anything she would say so.
Chasteen said he would find out if Greene was lying and if she was, she would be fired or
something would have to happen. Greene again said she had no reason to lie. Chasteen told
Greene she was suspended until further notice. Greene asked how long further notice would
be and Chasteen said before the end of the day. Greene said Chasteen took her badge and
keys and Human Resources Manager Lipps escorted her from the facility.
Greene was notified by District Regional Manager Chasteen in writing on February
14, 2008, she was terminated effective that day. The letter in part reads as follows:
More specifically, our investigation has disclosed that on the day in question,
you were involved in a violent confrontation with a co-worker which could
have resulted in her serious bodily injury. As you know, violence in the
workplace is not tolerated as all employees are expected to work together in a
professional manner consistent with our policies and procedures. Additionally,
your actions displayed an intentional disregard of company safety policy and
procedures which placed a co-worker in danger of serious bodily harm.
Greene was the Food Services Associate of the Month for March 2007. Greene said
she served as a Union observer at the Board-conducted elections at the Company in 2005 and
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2006. Greene said that in 2006 there was a second observer for the Union with her. In 2007,
Greene gave out union cards and flyers at the Company and answered questions by employees
about the process. Greene gave out some 30 union signature cards and received 14 back
which she gave to a Union representative. Greene said she was present at the representation
hearing to testify as a witness for the Union in January 2008 but did not testify because the
Company and Union resolved the matter without a hearing. Greene described herself as one
of the stronger supporters of the Union at the Company.
Employee Lopez testified Greene gave her a union card but said no one from
management was present when it happened. According to Lopez, Greene was not the only
employee to give out cards for the Union and stated the other employee doing so was still
employed by the Company.
Greene acknowledged that Thompson was also a union supporter.
Smithen testified she was interviewed by Regional Labor Relations Manager Acosta
and Human Resources Advisor Paige in the cafeteria on February 13, 2008. Smithen told
Acosta and Paige she saw Greene go to the sink area, toss a spoon on the sheet pan, and
return. Smithen said she was also questioned later that same day, by Human Resources
Manager Lipps about the incident. Lipps told Smithen she had to leave and asked Smithen to
prepare a statement about the incident and fax it to her.
Smithen testified she did not think it was fair what the Company did to Greene.
Smithen served as a Union observer at the most recent Board-conducted election. Smithen
said she felt comfortable raising Employee of the Year Award concerns with District Regional
Manager Chasteen. Smithen acknowledged Greene was not the only employee that voiced
concerns with management about the selection of Thompson as Employee of the Year.
The Government presented counseling reports issued on October 8, 2007, to
employees Veronica Smithen and Alihandra Walters. It appears from the reports that Walters
began to sing at work and Smithen then began singing also. Thereafter, both began
“screaming and cursing” at each other requiring management to quieten them down. Both
agreed they could continue to work together and shook hands. Both employees were sent
home for approximately a day and a half. Walters had also been issued a counseling report on
April 28, 2006, for “screaming” at another kitchen associate for using the last of a product.
Walters was instructed she should have brought the matter to management’s attention.
The Government also presented an earlier final progressive counseling report issued to
Smithen on September 30, 2005, for threatening a fellow worker. The counseling report
provides few details but states Smithen had said that, “If I lose my job, I’ll be waiting outside
and do what I have to do.”
3. Company’s Evidence
District Regional Manager Chasteen said that in early 2008, he became more involved
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with the Company’s St. Croix site because the manager for that project, General Manager
Steward, was away from work for an extended period due to health related concerns.
Chasteen testified that on Monday, February 11, 2008, following the Employee of the Year
Awards presentations at the employee appreciation banquet held on Saturday, February 9,
2008, he came to work around 6 a.m. and spoke first with three kitchen employees in the
Hovensa Oil Refinery cafeteria. The three were Greene, Lopez, and Chapman. Chasteen told
Chapman he was missed at the Company’s party. Chapman responded it was good he did not
come to the party. Chasteen asked why. According to Chasteen, “Ms. Greene jumped in and
said that … because the person that won the award didn’t deserve to win it. It should’ve went
to Mr. Chapman.” Chasteen said they then discussed the award and “Ms. Greene thought that
either herself or Mr. Chapman should’ve been the ones to win the award because they work
harder than the folks in the dish room.” Chasteen said all three employees present that
morning were speaking but Greene took the lead. District Regional Manager Chasteen
testified Greene said Thompson must have known she was going to win the award because
she moved to the front of the room before the awards were given out. Chasteen explained he
did not think Thompson could have known in advance because the selection was by sealed
ballot. Greene told Chasteen that Thompson and Kitchen Supervisor Liburd were friends and
that Liburd had told Thompson before the awards were presented. Chasteen again explained
he did not think that was so because Kitchen Supervisor Liburd was not on the awards
committee. Chasteen testified he further explained to Greene and the others:
I explained to her that, you know, I don’t know where she would think that Ms.
Thompson had known, because everything came to me and the final three –
there was Employee of the Year winners, one for janitorial, one for the admin.
and one for the porta camp, and I got the three finalists and the person that was
actually selected was selected by me. So I did not understand how she could
even say that Ms. Thompson would’ve known when she was not there, because
I was the one who selected over the phone and I’m the one that made the
awards. It was very quiet because we were doing the big ceremony that year.
Chasteen asked the employees what they wanted to see done better with respect to the
Employee of the Year Awards. The three employees said the employees wanted more input
into the selection. Chasteen promised to look into it.
District Regional Manager Chasteen met with his management staff telling them he
did not want to go through with this type shadow hanging over next year’s Employee of the
Year Awards because it was such a good event and a better system of selection was needed.
Chasteen and management arrived at a formula whereby one-third of the input for the
selections would come from the employees, one-third would come from management and the
final one-third would be based on customer satisfaction and employee attendance. There
would be Employee of the Month selections from which the Employee of the Year recipients
would be chosen.
Regional Labor Relations Manager Acosta said she spoke with Greene on Monday
morning following the Employee of the Year Awards party. Acosta asked Greene if she had
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attended the party and if she had fun. Greene said she had a lot of fun but she did not “like
who won the Employee of the Year.”
According to Acosta, she later that day, conducted an informational meeting with
certain employees to explain the process and what employees had to do with respect to the
upcoming representation election. At this meeting certain employees asked to talk with
District Regional Manager Chasteen. Chasteen was advised of the request and met with the
employees.
Chasteen met with employees Greene, Richardson, Smithen, and Walters along with
Human Resources Manager Lipps and Regional Labor Relations Manager Acosta. According
to Chasteen, Smithen first wanted to know how Thompson could have won Employee of the
Year. Chasteen again explained the current process and told the employees he was trying to
come up with a more proactive approach to the selection process. Chasteen told the group if
they still doubted Thompson should have won, they should “go work in the dish pit for a
while and see what the job’s like, because that is a very tough job.” Chasteen told the
employees he had heeded their concerns and management was going to make the process
more fair and equitable next year explaining it was not unfair nor inequitable this year.
Chasteen encouraged those present to get on the selection committee for the next year.
Margaret Thompson began working for the Company in December 2005 as a
dishwasher and breakfast cook for Kitchen Supervisor Liburd. Thompson attended the
Employee of the Year Awards dinner on February 9, 2008, first sitting in the back of the room
but later moving forward in order to view a video shown before the announcement of the
Employee of the Year Awards. Thompson received the Employee of the Year Award for the
kitchen employees.
Thompson reported, as usual, for work on Monday, February 11, 2008, and overheard
Greene “talking amongst her friends” saying Thompson did not deserve the award that she,
Greene, was the one supposed to get it. Thompson testified that also on the same day between
8 a.m. and 9 a.m., she overheard Greene, at the coffee station, tell a Hovensa Fire Services
employee that Thompson did not deserve the award and noted the Company had 25 names to
choose from but did not choose Greene. Thompson spoke with Regional Labor Relations
Manager Acosta, Human Resources Advisor Paige and Human Resources Manager Lipps
telling them Greene was saying she did not deserve the award. The three told Thompson “it
will be alright.”
Thompson reported for work on Tuesday, February 12, 2008, and commenced
washing pots and pans. Thompson said that around 9 a.m. while she was continuing to wash
pots and pans, Greene came and placed a pan by the steamer and “she just fling the spoon and
all the grease splattered me.” Thompson specifically testified, “I saw her throw the spoon.”
Thompson called to Greene three times as Greene was leaving the sink area but Greene did
not respond. Thompson explained she was splashed with hamburger grease from the sheet
pan onto her face, clothing and onto the wall behind the sink. Thompson took sheets of paper
from a paper dispenser and wiped grease from her face and clothing before reporting the
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matter to Kitchen Supervisor Liburd. In route to Liburd’s office, Thompson passed Greene,
who was talking with a co-worker. Thompson testified that as she walked away from Greene
and the co-worker, Greene said she hoped that when Thompson went to Alaska they brought
her back in a body bag. Thompson immediately thereafter met with Kitchen Supervisor
Liburd telling her how Greene had come to where she was “and threw the spoon and splashed
the grease all over [her], and [that she] wanted to talk to Mr. Chasteen.” Liburd told
Thompson Chasteen was on his way to speak with her.
District Regional Manager Chasteen met with Thompson in the dining room area
where Thompson explained to Chasteen about Greene tossing the spoon on the sheet pan with
hamburger grease and it splattering all over her. At that time, Greene approached and stated
she was going to apologize. Thompson told Greene “no” because she (Thompson) had
already spoken with Chasteen about the incident.
Thompson also met with Regional Labor Relations Manager Acosta and Human
Resources Advisor Paige and told them about the incident. Additionally, Thompson gave a
report to Hovensa Security Investigator Lazarus Lambert Joseph. Investigator Joseph
prepared a report after interviewing Thompson and others.
District Regional Manager Chasteen explained he became aware of the
Greene/Thompson incident while he was at another building attending a training session with
the janitorial employees. Chasteen was notified about the kitchen incident via a telephone call
from Kitchen Supervisor Liburd. Chasteen drove to the administration building and
immediately went to the kitchen office where he met with Liburd. Liburd told Chasteen that
Greene had thrown a spoon which hit a sheet pan with grease drippings on it and it splashed
all over Thompson. Chasteen asked to see Thompson. Chasteen said he stepped outside the
kitchen office and observed Thompson who was “visibly shaken” “wiping off her face” with a
towel and had “little white particles” on her hair. Chasteen asked Thompson to tell him what
happened. Chasteen testified:
Ms. Thompson said that she was working at the pit, in the dish pit in the
kitchen, not the actual dish room but the dish pit in the kitchen itself, and Ms.
Greene had walked up behind her, threw a service spoon into one of the triple
sinks, to where some sheet pans had been set and where the fat is, and when it
did that, it splashed the water, the soapy water in this pan and it splattered
everywhere, including herself.
And she said, as she went to ask Ms. Greene, you know, Ms. Greene, Ms.
Greene, she said she had heard Ms. Greene say you didn’t deserve to win and I
hope you come back in a body bag. And she proceeded to get very upset with
the situation and actually had tears. It wasn’t a pleasant situation with her at
that moment. At that time I e-mailed, because I knew that Iris and Gina was in
those meetings I had left, departed from, that I needed them to come to the
admin right away because it was involving a female and I needed them to
come and conduct the investigation.
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District Regional Manager Chasteen met later that day with Human Resources
Manager Lipps, Human Resources Advisor Paige and Greene. According to Chasteen, Paige
began asking Greene about the spoon incident. According to Chasteen, Greene responded she
did not understand or it was not such a big deal that she did it all the time. Greene admitted
throwing the spoon but denied she made any comments about a body bag. Greene denied
hearing Thompson call for her as she was leaving the sink area. Chasteen said the spoon
Greene threw was a 12 to 14-inch stainless steel serving spoon.
Human Resources Advisor Paige testified she led the questioning of Greene and when
she asked Greene what happened, Greene did not know but said “she heard that she
supposedly made a comment about Ms. Thompson coming home in a body bag.” Paige asked
Greene to back up, take it from the beginning, and tell what happened. Greene told Paige, and
the others, she placed dishes in the dishwashing area and “place the spoon there and nothing
splattered.” Greene did acknowledge she would usually throw things and if it splashed
Thompson that Thompson would say so. According to Paige, Greene specifically denied
making any comment about a body bag. Paige told Greene she had gotten names of potential
witnesses from both sides and would conduct an investigation. Chasteen and Paige both
testified Greene was, at that time, placed on leave with pay pending an investigation. Paige
collected Greene’s key and employee badge and Lipps escorted Greene from the building.
Human Resources Advisor Paige and Acosta continued to investigate the spoon
tossing incident later that day by interviewing Thompson. According to Paige, Thompson
said the serving spoon Greene tossed hitting the pan splashed the wall as well as her face,
including her forehead and chin. Thompson also told Paige about the body bag comment.
According to Paige, Thompson also stated Greene said, as she walked away, that they were
always giving Thompson stuff she did not deserve. Thompson provided Paige with two
potential witnesses, namely Dienerca Ferre and Carmen Walters.
Paige and Acosta next met with Dienerca Ferre who said she was in the dishwashing
area at the steamer and observed Greene throw a serving spoon on a sheet pan which had
hamburger grease on it and it splashed all over the place. According to Paige, Ferre heard
Greene say to Thompson that she did not deserve to win the Employee of the Year Award.
Ferre testified Thompson had to wipe splash from her person. Paige testified Ferre said she
did not hear any body bag comments.
Human Resources Advisor Paige next met with Carmen Walters who said she did not
see anything. Paige attempted to interview Kitchen Cook James Chapman but he told her he
did not see or know anything and walked away. Paige interviewed Veronica Smithen that
same day. Smithen started telling Paige nothing happened that she did not see anything and
swore on the life of her children nothing like that happened. Paige responded, nothing like
what, and then asked Smithen to start at the beginning and tell her what happened. Smithen
told Paige she did not see anyone throw a spoon, nor hear anyone call out anyone’s name.
The conversation ended at that point.
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Regional Labor Relations Manager Acosta testified Lopez told them she did not see
Greene throw a spoon but did hear Greene say Thompson did not deserve the Employee of the
Year Award. Acosta testified Lopez said she heard Thompson say Ms. Greene you splashed
this.
Human Resources Advisor Paige thereafter reviewed her notes and needing to leave
St. Croix directed Human Resources Manager Lipps to return to the site the next day to obtain
detailed written statements from the known witnesses.
Human Resources Advisor Paige testified Human Resources Manager Lipps thereafter
forwarded to her a detailed statement given to Lipps by employee Smithen. Paige said she
reviewed Smithen’s statement along with other documentation. Paige then arranged a
conference call with District Regional Manager Chasteen and Regional Labor Relations
Manager Acosta. The three of them reviewed the facts. Paige recommended Greene be
terminated. Paige testified, “It was concluded that Lillia Greene had threatened, intimidated
and interfered with another associate, as well as violated the Company’s zero tolerance
policy.” Paige testified she did not recommend a lesser penalty than discharge because it was
determined Greene’s actions against Thompson were “with malicious intent” based on
Greene’s comments that Thompson did not deserve to win the Employee of the Year Award
for the kitchen. Paige said she could not validate a finding with respect to the body bag
comment so she did not consider that in her recommendation. Paige also recommended that
District Regional Manager Chasteen telephone Greene immediately of his decision and follow
up his call with a certified letter of dismissal.
Paige specifically testified Greene’s discharge did not result in any way from her
having protested the recipient of Employee of the Year Award for the kitchen employees.
Likewise, Paige testified Greene’s purported union involvement played no part in her
discharge recommendation and/or Greene’s actual discharge.
District Regional Manager Chasteen testified he acted on the recommendation to
terminate Greene because the investigation persuaded him what Thompson had said happened
and “it appeared that Ms. Greene, what she told us basically was not truthful.” Chasteen
continued:
And you take into account Ms. Thompson’s demeanor, being totally scared,
her threatening – the way she felt that she was being threatened or singled out,
I guess, she was – I went ahead and went through with the recommend to
terminate her at that time.
Chasteen terminated Greene and notified her in a letter dated February 14, 2008.
District Regional Manager Chasteen specifically stated Greene’s complaining about the
selection process for Employee of the Year awards absolutely formed no basis for her
discharge. Chasteen stated he actually encouraged employees to raise complaints or concerns
they may have with him or other Company officials. Chasteen explained he readily handed
out his business card to employees on which card was his cell, office, and home telephone
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numbers as well as his business and personal e-mail addresses. Chasteen further explained he
started in March 2007, a monthly conference open forum call, the first Monday of each month
so employees could call in their concerns. Chasteen said he made employees aware of the
conference calls by notices on employee right-to-know boards and on little cards handed to
employees with the call in number for the conference calls.
District Regional Manager Chasteen testified he, approximately one week before
discharging Greene, discharged another employee for similar conduct. Chasteen explained
two employees came to him concerned about comments Porta Camp laundry employee Anna
Williams had made to fellow employee Henrietta Ferdinand. Chasteen said Human
Resources Advisor Paige investigated the matter, including interviewing Williams, and after
he consulted with Porta Camp Project Manager Logan, he terminated Williams. Chasteen
explained the investigation showed “Ms. Williams had made some threatening remarks
towards Henrietta … telling Henrietta that you vex me and one of these days I’m going to get
so vexed by my boyfriend and I’m going to come back here and I’m going to jump on your
ass.” The “Associate Counseling Report” dated February 1, 2008, given Williams related to
her termination, indicates Williams was discharged for violating Company work rules in that
she used abusive language, racial slurs, and made threatening and intimidating comments
toward a coworker.
Human Resources Manager Lipps testified the Company actively provides means for
employees to express concerns, complaints or ask questions and does not discipline
employees for expressing concerns. Lipps explained, for example, the Company established
an Associate Relations Committee, approximately a year ago, “comprised of a group of
people that get together to discuss any kind of concerns whether it’s operational or
relationship on working conditions.” The Associate Relations Committee meets with Lipps
quarterly. Each group of employees selects an employee member to represent them on the
Associate Relations Committee.
Human Resources Advisor Paige testified the Company encourages its employees to
voice any type complaints or unethical behavior to on-site management, district management
and/or to the Human Resources Department through the Human Resources Service Center,
the Speak Up Hotline or Be Aware Hotline as well as communicating through the Company’s
CHAT (Communication, Help and Training) Program. According to Paige, the CHAT
Program is “another avenue of communication … on a monthly basis, the hot topic of the
month ….” Human Resources Advisor Paige conducted a CHAT Program meeting in
January 2008 where she addressed respect in the workplace and the Company’s Zero
Tolerance Discrimination and Harassment Policy. According to Paige, employees are
required to sign annually they had reviewed the policy. Paige explained she made sure each
employee read and understood the Company’s Zero Tolerance Discrimination and
Harassment Policy. Paige stated her 2008 presentation took place before Greene was
terminated.
Greene signed a receipt dated May 24, 2006, for the Policy training and signed another
document dated January 1, 2008 making reference to the policy.
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Paige specifically testified Greene was not terminated for any union activity or
because she protested the selections for Employee of the Year Awards. Paige said other
employees, namely Angie Santiago, Carmen Walters, Sharon Richardson, and Veronica
Smithen made comments about the selections for Employee of the Year Awards and noted no
actions were taken against those employees for doing so. Paige said most of the employees’
comments centered around the criteria for the selections, and an expression that James
Chapman should have been, Employee of the Year for the kitchen in 2008.
Human Resources Manager Lipps testified that in late December 2007, the Company
posted a Human Resources Administration position and Greene was among nine employees
applying for the position. Lipps eliminated certain applicants after conducting a telephone
interview, however, Greene and two others continued to remain under consideration. Lipps
personally interviewed Greene on February 3 or 4, 2008. Human Resources Manager Lipps
explained Greene’s resume exhibited “some beginning skills” which she thought she “could
work with to train” and wanted further discussions with Greene. Neither Greene nor the other
two employees personally interviewed by Lipps were selected for the position. Eventually,
the position was filled with an individual from outside the Company. Lipps was not aware of
any union type activity by Greene prior to interviewing her for the position. Lipps was aware
that in 2006 kitchen cook Chapman supported the Union and she said Chapman was sent for
management training during that year. Lipps was not certain which came first but pointed out
Chapman is still employed by the Company.
Regional Labor Relations Manager Acosta testified that in her labor relations capacity,
she is responsible for approximately 120 unionized sites of the Company with over 400
collective bargaining agreements involving various labor organizations. Acosta stated the
Company has four sites in the United States that are represented by the United Steelworkers.
Acosta testified she has conducted approximately 10 union informational campaigns
for the Company. Acosta explained the Company approaches union campaigns in one of two
ways, either as a soft or hard campaign. In a soft campaign she said she simply goes to the
site and explains to the employees the process and procedures followed by the National Labor
Relations Board in Board-conducted elections. Acosta said she explains to the employees that
a particular union has filed a petition for an election and also explains contract negotiation
procedures. In a hard campaign, Acosta said she does as in a soft campaign but in a hard
campaign she also gathers and presents “information on any sort of criminal misconduct of
the union” as well as any “alleged bankruptcy or embezzlement that the union may have.”
Acosta further explained that in hard campaigns informational writings are mailed to
employees’ homes as well as distributed on site at the facility. Acosta said all three union
campaigns at the Hovensa Oil Refinery in St. Croix were soft campaigns. Acosta explained:
The Hovensa employees are represented by the Steelworkers and due to our
client and the relationship with our client and the fact that the employees are
represented with the Union, we decided to take that approach. And in addition,
our Company has other accounts with the Steelworkers throughout the United
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States. So that’s the reasons as to why we decided to take the soft campaign
route.
Acosta noted the employees declined union representation in the most recent
campaign as well as the two previous campaigns and also noted no objections to the conduct
of the elections were filed by the Union.
4. Legal Principles
The thrust of the Government’s case is that Greene was discharged, in violation of
Section 8(a)(1) of the Act, for engaging in concerted protected activity by protesting the
selection of the recipient of Employee of the Year for the kitchen employees in February
2008. Additionally, the Government contends Greene’s discharge was as a result of her
activities on behalf of the Union and the Union’s organizational efforts at the Company and as
such violated Section 8(a)(3) of the Act.
In view of the Government’s contentions and the Company’s defenses it is helpful to
outline Board guidance in cases where it is alleged the motivation for the discharge involves
concerted protected and/or union activities.
In order to determine whether an employee has been discharged for concerted
protected activity, it must be established that the employee engaged in concerted activity and
then if there was concerted activity whether it was activity protected by the Act. Section 7 of
the Act in pertinent part states “Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection.” In Meyers Industries (Meyers I), 268 NLRB 493 (1984),
remanded sub. nom. Prill v. NLRB 755 F.2d 941 (D.C. Cir. 1985), the Board set out its
definition for “concerted activity.” Generally, to find an employee’s activity to be
“concerted,” the Board will require that the activity be engaged in, with, or on the authority of
other employees and not solely by and on behalf of the employee himself. Once the activity
has been found to be concerted, an 8(a)(1) violation will be found if the employer knew of the
concerted activity; the concerted activity was protected by the Act; and the adverse
employment action at issue, was motivated by the employee’s protected concerted activity. In
Meyers Industries (Meyers II), 281 NLRB 882 (1986), enfd. sub. nom. Prill v NLRB, 835 F.2d
1481 (D.C. Cir. 1987), the Board further clarified that under proper circumstances a single
employee may engage in concerted activity within the meaning of Section 7 of the Act.
To establish a violation of Section 8(a)(3) of the Act, the government must prove, by a
preponderance of the evidence, that an individual’s protected activity was a motivating factor
in the employer’s action. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). Once the government makes this showing, the
burden of persuasion then shifts to the employer to prove its affirmative defense that it would
have taken the same action even in the absence of the protected conduct. To sustain its
burden the government must show that the employee was engaged in protected activity, that
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the employer was aware of that activity, that the activity or the employee’s union affiliation
was a substantial or motivating reason for the employer’s action, and, there was a causal
connection between the employer’s animus and its challenged conduct or decision. The
government may meet its Wright Line, supra, burden with evidence short of direct evidence
of motivation, i.e. inferential evidence arising from a variety of circumstances such as union
animus, timing or pretext may sustain the government’s burden. Furthermore, it may be
found that where an employer’s proffered non-discriminatory motivational explanation is
false, even in the absence of direct evidence of motivation, the trier of fact may infer unlawful
motivation. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Flour
Daniel, Inc., 304 NLRB 970 (1991). Motivation of union animus may be inferred from the
record as a whole, where an employer’s proffered explanation is implausible or a combination
of factors circumstantially support such inference. Union Tribune Co. v. NLRB, 1 F.3d 486,
490-492 (7th Cir. 1993). Direct evidence of union animus is not required to support such
inference. NLRB v. 50-White Freight Lines, Inc., 969 F.2d 401 (7th Cir. 1992). If it is found
an employer’s actions are pretextual, that is, either false or not relied upon, the employer fails
by definition to show it would have taken the same action for those reasons and it is
unnecessary to perform the second part of the Wright Line analysis. Limestone Apparel Corp.
255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).
5. Comments on Credibility Determinations
Before turning to exactly what happened surrounding the selection and announcement
of the 2008 Employee of the Year Award recipient for the kitchen employees and all that
occurred thereafter, it is helpful to make certain observations applicable throughout this
Decision. First, there are certain credibility resolutions that are essential to resolve.
However, there are other incidents where the facts are uncontested or there are differing
versions of what was said or what took place that do not require a precise resolution in order
to resolve the issues herein. I have not attempted to resolve or reconcile all conflicts, only
those I deem pertinent in resolving the issues herein. That having been acknowledged, I have
not ignored nor failed to consider all evidence presented herein. Second, portions of certain
witnesses’ testimony have been rejected while at the same time I have accepted other portions
thereof. Such acceptance and/or rejections has sometimes resulted from supporting
documents, other testimony, and/or other related factors. Third, I note resolutions of
credibility conflicts are often difficult, requiring the weighing of plausible narrations of
testimony by witnesses who appear truthful and no more biased or prejudice than others
testifying differently. Indeed, resolutions by the judge, or a jury in a jury trial, are simply a
practical solution, not a mark of truth. Mindful of the above and pertinent at this point, I paid
close attention to each witness as he/she testified in making credibility determinations herein.
6. The Credited Facts
It is undisputed the Company held its second annual employee appreciation dinner on
Saturday, February 9, 2008, in Christiansted, St. Croix, at which it presented Employee of the
Year Awards. Among the many employees present were certain kitchen staff employees
including Greene, Walters, Santiago, Richardson, Duet, Smithen, and Thompson. It was
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announced Thompson was the winner of the 2008 Employee of the Year Award for the
kitchen employees and she received a certificate along with a one week all expense paid trip
to Alaska for two.
I credit Greene’s undisputed testimony that those kitchen employees sitting at the table
with her “laughed” at the selection of Thompson, and, I also credit Greene’s undisputed
testimony she stated Thompson did not deserve to be Employee of the Year and declared
Thompson’s selection “a cheat.” Greene said she needed to get herself “a drink” after hearing
the announcement Thompson had won the award.
It is undisputed that the first thing at work on Monday morning, February 11, 2008,
Greene and certain other kitchen employees continued to discuss and express disapproval of
Thompson’s solution. I credit Greene’s undisputed testimony that when District Regional
Manager Chasteen asked Chapman that morning why he was not present at the employee
appreciation dinner on Saturday, Chapman laughed and Greene explained Chapman was
disappointed with his recent employee evaluation. I likewise credit Greene’s undisputed
testimony that she added a lot of people would not come to the employee appreciation dinner
next year because they were offended at who was chosen for Employee of the Year from the
kitchen employees. I credit Lopez’s undisputed recollection that Greene told Chasteen the
only thing she did not like about Saturday night’s party was the selection of Thompson for
Employee of the Year. I likewise credit Smithen’s undisputed testimony Greene also told
District Regional Manager Chasteen that Thompson’s selection was unfair that Chapman
should have been selected because he was a team player that helped everyone. I credit
District Regional Manager Chasteen’s testimony that Greene “jumped in” the conversation
and said Thompson did not deserve to win the award that it should have gone to Chapman and
after further discussion said the award should have gone to either herself or Chapman because
they worked harder than the dish room employees. I credit Regional Labor Relations
Manager Acosta’s undisputed testimony that Greene told her that morning that she did not
like who won the Employee of the Year Award. I credit Thompson’s testimony that she
overheard Greene talking amongst her friends that Thompson did not deserve the award. I
credit Thompson’s undisputed testimony she overheard Greene tell a Hovensa Fire Services
employee Thompson did not deserve the award and the Company had 25 names to choose
from but did not choose Greene. Thompson’s testimony is in keeping with Greene’s
continued vocally expressed disapproval of the selection of Thompson for the award. I am
persuaded Hovensa Fire Services employee Peter Etienne is simply mistaken when he stated
he did not see Greene at work that day.
It is undisputed District Regional Manager Chasteen told the employees he would look
into their concerns about the selection process and get back with them.
I credit Regional Labor Relations Manager Acosta’s undisputed testimony she
conducted an informational meeting with certain employees regarding the upcoming Board-
conducted representation election on the afternoon of February 11, 2008, and certain
employees at the meeting specifically requested to meet with District Regional Manager
Chasteen. Chasteen was notified and met with kitchen employees Greene, Smithen, Walters,
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and Richardson along with Acosta and Human Resources Manager Lipps. The undisputed
testimony regarding the meeting establishes Smithen wanted to know how Thompson could
have been selected Employee of the Year. Chasteen suggested the employees should work as
a dishwasher for a while and they would see it was a tough job. I credit Greene’s undisputed
testimony the employees told Chasteen the Employee of the Year Awards were to be given to
employees that went all out for the Company. Greene again suggested the award should have
gone to Chapman for the kitchen employees. Santiago told Chasteen Thompson should not
have won the award. Chasteen promised employees to improve on the selection process for
next year.
The above clearly established facts illuminate my findings of exactly what took place
among the Company’s kitchen employees at the Hovensa Oil Refinery on the morning of
February 12, 2008.
It is undisputed, and I find, that at approximately 9 a.m. that morning, kitchen
employees Greene, Thompson, Lopez, Walters, Smithen, Ferre, and Chapman were in and
around the kitchen area performing their daily work assignments. For example, Chapman and
Lopez were preparing hamburgers and chicken, Smithen was readying items for the c-store,
Ferre was washing potatoes, Greene was preparing tuna and Thompson was washing and
rinsing dishes, pots, and pans. It is undisputed that on a daily basis pots, pans, and dishes are
placed in the sink area for cleaning and such was the case this day. It is likewise undisputed
that there was at least one large sheet pan in the area where Thompson was washing dishes
that had grease, soap and water on it. It is also undisputed Greene took a 12 to 14-inch
stainless steel serving spoon to the washing area where Thompson was working.
It is at this point the testimony differs somewhat regarding what took place next.
Thompson, a soft spoken witness, from whom answers, at times, had to be coaxed out
of her; nonetheless, impressed me as testifying truthfully. Nothing about her testimony
caused me to believe she misspoke or expanded upon the truth. Although she appeared
uncomfortable testifying, I am persuaded it was a result of being a witness and not from
concerns about testifying in other than a truthful manner. In crediting her trial testimony, I
am not unmindful certain responses she gave the Company and Hovensa Oil Refinery during
the investigation of the events herein do not track verbatim her trial testimony. Simply stated,
I credit her trial testimony. I credit Thompson’s testimony that after Greene placed a pan by
the steamer in her area she flung a spoon onto the sheet pan splashing Thompson with
hamburger grease onto her face, clothing, and onto the wall behind the sink. I note Greene
acknowledged there was a little bit of grease inside the sheet pan and that she tossed the spoon
onto the sheet pan. Employee Ferre corroborated Thompson’s testimony stating she saw
Greene throw the spoon onto the sheet pan splashing grease onto Thompson’s face and hair
and heard Greene say to Thompson “like, -- saying like giving you stuff you don’t deserve,”
and turned and walked away. I credit Thompson’s testimony that after she was splattered, she
called out to Greene three times but Greene did not respond. I note Lopez heard Thompson
call for Greene twice and Smithen overheard Thompson call once for Greene but Greene
never responded. Thompson took paper towels and wiped the grease from her face, clothing,
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and the wall before reporting the incident to Kitchen Supervisor Liburd.
I credit Thompson’s testimony that enroute to report the situation to Kitchen
Supervisor Liburd she passed Greene who was talking with a co-worker. Thompson credibly
testified Greene told her as she walked away she hoped when Thompson went to Alaska they
brought her back in a body bag. Thompson immediately met with Kitchen Supervisor Liburd.
Thompson told Liburd that Greene had thrown a spoon and splashed grease all over her and
she requested to speak with District Regional Manager Chasteen, which request was granted.
I credit District Regional Manager Chasteen’s testimony that upon receiving
notification of the incident, he proceeded directly to Kitchen Supervisor Liburd’s office and
thereafter met with Thompson. I also credit Chasteen’s testimony that when he first observed
Thompson she was visibly shaken, wiping her face and had little white particles in her hair.
Thompson told Chasteen of the tossed spoon and the hamburger grease splattering all over
her. I credit Chasteen’s testimony that when Thompson told him of Greene’s body bag
comment and saying she did not deserve to win Employee of the Year that Thompson was
very upset with tears in her eyes.
Thompson credibly testified she did not accept an apology offered by Greene because
it came after Thompson had already reported the matter to Liburd and Chasteen.
I find the Company conducted an investigation of the incident with District Regional
Manager Chasteen, Human Resources Manager Lipps, Human Resources Advisor Paige, and
Regional Labor Relations Manager Acosta participating therein. It was determined by
Chasteen, upon recommendation of Paige, to terminate Greene on February 14, 2008.
Chasteen testified he terminated Greene because the investigation persuaded him that what
Thompson had said happened and Greene had not been totally truthful during the
investigation.
III. Analysis, Discussion, and Conclusions
First, I find the concerns, complaints and questions Greene and her co-workers raised
with management regarding the selection process, as well as, its choice of Employee of the
Year Award for 2008, for the kitchen employees, constituted concerted activity protected by
the Act. Certain of the employees sought to and actually brought to management’s attention
problems the group of co-workers perceived regarding the Employee of the Year Awards.
Their concerns related to working conditions which was one element considered in selecting
the Employee of the Year. The Employee of the Year Awards entailed compensation in that
those selected, along with another person of their choosing, received an all expense paid trip
to Alaska from St. Croix, USVI. Clearly, the actions of the employees constituted concerted
activity protected by the Act and I so find.
Thus, it is clear Greene engaged in concerted protected activity and it is just as clear
the Company knew of her involvement. Greene made her involvement known to several
members of management, specifically including District Regional Manager Chasteen, who
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made the decision to terminate Greene. The timing of the Company’s adverse action against
Greene, which followed shortly after Greene and others engaged in concerted protected
activity, gives rise to an inference that concerted protected activity was a motivating factor in
the Company’s decision to discharge Greene.
I turn next to Greene’s union activities and what, if any, role those activities played in
her discharge. Greene had union activities. She served as the Union’s observer at the Board-
conducted representation elections in 2005 and 2006. Greene was the lone observer for the
Union in 2005 and was one of two observers for the Union in 2006. In 2007, Greene
distributed cards and flyers for the Union at the Company. In January 2008, Greene appeared
as a witness for the Union at a representation hearing but was not called to testify as the
parties resolved all outstanding issues related to the representation election. While Greene
was not the only employee to give out cards at the Company for the Union, she described
herself as one of its strongest supporters. I am persuaded the Company was aware of
Greene’s support of, and activities on behalf of, the Union. Greene’s discharge took place on
February 14, 2008, a mere 12 days before the Board conducted the third representation
election at the Company. Again, timing permits the drawing of an inference of anti-union
animus.
I find the Government established a dual pronged prima facie case of discrimination
based on concerted protected activity as well as union activity.
Did the Company meet its burden of persuasion that it would have taken the same
action it did even in the absence of the protected and/or union activities of Greene? I am
persuaded the Company met its burden. Greene did exactly what the Company asserted she
had done in discharging her. Greene was deeply dissatisfied from the very outset that
Thompson was selected as the kitchen employees’ Employee of the Year. Greene expressed
her disapproval immediately at the award ceremony dinner saying Thompson did not deserve
the award and it was a cheat to give it to her. In fact, Greene’s reaction and disapproval of
Thompson’s selection was so strong she immediately needed, and got herself, a drink. While
Greene’s expressions of disapproval are protected, she did not let the matter rest, but, as the
Company established, continued to keep up a steady commentary with her co-workers and
management about and against the Company’s selection of Thompson. Greene thought, as
brought out by the Company, that either she or Chapman should have been selected instead of
Thompson. Greene’s protected expression of her views against the selection of Thompson
turned from an expression of views to action. Greene tossed a 12 to 14-inch serving spoon
onto a sheet pan admittedly covered with grease which splattered Thompson’s face, clothen
and hair while telling Thompson she was being given stuff she did not deserve. Greene
shortly thereafter stated to Thompson she hoped when Thompson returned from her award
trip to Alaska she was brought back in a body bag. The evidence establishes Greene’s
comments and actions raised fear in Thompson and reduced Thompson to being visibly
shaken and in tears.
I reject the Government’s contention that being splashed in the face with hamburger
grease and cleaning soap would not place “a person in any type of danger, much less any
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bodily harm.” Grease and cleaning soap could have the potential to do grave damage, for
example, to the eyes. I likewise reject the Government’s contention that even if it is found
Greene made the comment she hoped Thompson returned in a body bag from her award trip,
the comment would simple be “distasteful” and “nothing more than wishing someone ill fate,
but hardly a threat.” I find Greene’s comment far more than merely distasteful, it is, simply
stated, a threat the person will meet an untimely demise. I find the Company established it
discharged Greene for a confrontation with Thompson that could have led to serious bodily
harm and it would have discharged Greene even in the absence of any concerted protected or
union activities on Greene’s part. In this regard, I note several other kitchen employees
expressed concerns and disagreement with the selection process and award of Employee of
the Year, they were not discharged or disciplined for talking about and expressing their
concerns to management. Likewise, I note at the second Board-conducted election, a second
employee served with Greene as an observer for the Union and there is no showing the other
employee was disciplined in any manner. Likewise, a second employee, in addition to
Greene, distributed cards for the Union in 2007 for the 2007-2008 campaign and was not
disciplined in any manner. It is an acknowledged fact that Thompson was a union supporter.
The evidence established the Company actively seeks ways to assist its employees in
communicating with management rather than discipling them for doing so. Likewise, the
Company engaged in soft campaign tactics during each of the three Board-conducted
representation elections and did so without objections, thus demonstrating a lack of hostility
toward its employees’ union activities.
I reject the Government’s contention the Company treated Greene in a disparate
manner when it discharged her. The Company demonstrated that District Regional Manager
Chasteen on February 1, 2008, discharged an employee, Anna Williams for comments she
made to fellow employee Henrietta Ferdinand. Williams’ remarks were of a similar
threatening manner as those Greene made toward Thompson.
I also reject the Government’s contention that counseling reports given to employees
Veronica Smithen and Alihandra Walters on October 8, 2007, establish disparate treatment
with respect to the discipline given Greene. In the Smithen/Walters counseling, it appears
Walters began to sing at work and when Smithen also began to sing the two had a screaming
and cursing exchange. Management quieted them down, they shook hands, and agreed they
could continue to work together. I do not view this incident to rise to the level of the
Greene/Thompson. I note Smithen and Walters were only sent home for approximately one
and a half days. I find a counseling given to Walters on April 28, 2006, for screaming at a
fellow employee for using the last of a product does not compare with Greene’s conduct.
Walters was simply counseled to bring to management’s attention the next time the last of a
product has been used. I also find a counseling given to Smithen some three years before the
events herein, does not warrant a different conclusion than that I have reached herein. In the
September 30, 2005, counseling given Smithen, it is stated Smithen told another employee,
with few other details, that if she lost her job she would be waiting outside and do what she
had to do. It appears the Company’s current policies on threatening conduct is more
accurately reflected by its actions toward Anna Williams.
JD(ATL)–30–08
5
10
15
20
25
30
35
40
45
22
In summary, I find the Company demonstrated it would have discharged Greene
notwithstanding any concerted protected and/or union activities on her part. Accordingly, I
shall recommend the complaint be dismissed in its entirety.
Conclusions of Law
1. The Company is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Company has not violated the Act in any manner alleged in the Complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:2
ORDER
The Complaint is dismissed.
Dated, Washington, D.C., October 3, 2008.
William N. Cates
Associate Chief Judge

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.