La Favorita, Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1992

306 N.L.R.B. 203 (N.L.R.B. 1992)

203
306 NLRB No. 35
LA FAVORITA, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The judge’s citation to a pending proceeding before the Board re-
fers to La Favorita, Inc., 302 NLRB 849 (1991).
1 Respondent filed timely exceptions to Judge Anderson’s decision.
The case is now pending before the Board on those exceptions.
La Favorita, Inc. and United Food and Commercial
Workers Union, Local No. 7. Case 27–CA–
11386
January 29, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 3, 1991, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, and to adopt his recommended Order as
modified herein.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, La
Favorita, Inc., Denver, Colorado, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
Insert the following as paragraph 2(d) and reletter
the subsequent paragraphs.
‘‘(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.’’
A. E. Ruibal, Esq., for the General Counsel.
Steven H. Dymond, Esq. (Mountain States Employers Coun-
cil), of Denver, Colorado, for the Respondent Employer.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard the
above-captioned case in trial in Denver, Colorado, on Feb-
ruary 26 and 27, 1991. On July 17, 1990, United Food and
Commercial Workers Union, Local No. 7 (the Union) filed
a charge alleging that La Favorita, Inc. (Respondent) violated
Section 8(a)(1) and (4) of the Act. On October 17, 1990, the
Regional Director for Region 27 issued a complaint and no-
tice of hearing. The complaint alleges that agents of Re-
spondent threatened employee Petronilo Garcia with retalia-
tion, suspended Garcia for a day, reduced his hours of work,
and ultimately constructively discharged Garcia, because
Garcia gave testimony against Respondent in a Board pro-
ceeding. Respondent denies that it has in any way violated
the Act.
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine and
cross-examine witnesses, to argue orally, and to file
posthearing briefs.
On the entire record, including the briefs filed by the Gen-
eral Counsel and Respondent, and from my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material Respondent has been a Colorado state
corporation with an office and places of business in Denver,
Colorado, where it has been engaged in the baking and sell-
ing of flour and corn tortillas and the operation of a
delicatessen/restaurant.
Respondent, in the course and conduct of its business op-
erations, annually purchases and receives goods, materials,
and services valued in excess of $50,000 from other enter-
prises within the State of Colorado that received the goods,
materials, and services directly in interstate commerce. Re-
spondent annually sells and ships goods, materials, and serv-
ices valued in excess of $50,000 directly to other enterprises
within the State of Colorado that are directly engaged in
interstate commerce.
The parties agree, and I find, that Respondent is now and
has been at all times material an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On October 24, 1990, Administrative Law Judge Clifford
H. Anderson issued his decision in La Favorita, Inc.,
JD(SF)–106–90 finding that Respondent had violated Section
8(a)(3) and (1) of the Act.1 The hearing was held on various
dates in April and July 1990. Petronilo Garcia testified as a
witness for the General Counsel on April 3, 1990. The Gen-
eral Counsel contends that Respondent retaliated against Gar-
cia because of his testimony and ultimately caused Garcia to
seek employment elsewhere.
Respondent is a corporation principally owned by Gilbert
Gamez and Sylvia Gamez, husband and wife. Respondent
has two facilities, a tortilla bakery and a restaurant/delica-
tessen a few miles away. On September 20, 1989, a rep-
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resentation petition was filed by the Union. A Board-con-
ducted election was held on November 3, 1989. The Union
did not receive a majority of the votes cast in the election.
In his decision, Judge Anderson recommended that the elec-
tion be set aside based on certain unfair labor practices com-
mitted by Respondent.
B. The Facts
As stated earlier, Petronilo Garcia testified before Judge
Anderson on April 3, 1990. The next day, while Garcia was
working he was approached by Gilbert Gamez. Gamez an-
grily told Garcia that he wanted to remind Garcia that he
signed the employee’s paycheck. Gamez said the paychecks
did not come from the Union or the street.
Gamez testified that, after he observed 70 to 80 pounds of
burnt tortillas on the work floor, he approached Garcia. Ac-
cording to Gamez, he told Garcia to turn down the heat and
Garcia responded by cursing him. It was at this point that
Gamez said, ‘‘remember who signs your check.’’ Gamez de-
nied saying anything about the Union.
I have decided to credit Garcia’s version of this conversa-
tion over that of Gamez. Gamez was intent on denying those
events and statements attributed to him which he felt were
inconvenient or embarrassing. I do not believe he felt con-
strained by the truth to fully describe events as he recalled
them. Further, Gamez was unable to establish through docu-
ments or witnesses that there had ever been a situation where
70 to 80 pounds of tortillas had been burned or that Garcia
cursed him. His own foreman was unaware of such an inci-
dent. Further, during the same period, Gamez had made
notes in a daily journal of certain employee indiscretions.
However, he made no notes of the alleged burnt tortillas or
the alleged cursing by Garcia. The above factors, in consider-
ation with the demeanor of both witnesses, leads me to con-
clude that Garcia’s version of these events should be credited
over Gamez’ denials.
Garcia testified that on April 5 he asked for permission to
leave work early to attend traffic court. Gamez told Garcia
to leave for the day and the following day as well. Garcia
had, on previous occasions, received permission to leave
work without a problem. Gamez testified that Garcia wanted
time off and did not know whether he could return the next
day. Gamez told Garcia to take both days and that he would
use a ‘‘floater.’’ For the reasons stated above, I credit Gar-
cia’s version of these events.
On April 28, Garcia reported for work at 6 a.m. Garcia
told the foreman, Leonard Romero, that he would have to
leave work because his child was in the hospital. Romero
told Garcia that he would have to check on the availability
of other employees. Romero later sent word that Garcia did
not have permission to leave. Garcia waited until the flour
machine stopped, punched his timecard, and left work. While
Garcia was leaving, he was approached by Gamez and told
that he could not leave work. Garcia told Gamez that he had
to go to the hospital because of his child’s illness. Gamez
responded that if Garcia left he would be fired. Garcia then
went to the hospital.
Gamez testified that he observed Garcia leaving and asked
why the employee was leaving. According to Gamez, Ro-
mero came over to talk to Garcia and that he left Romero
to handle the situation. For the reasons stated above, Gamez
is not credited.
Romero testified that he was approached by Gamez and
told that Garcia was leaving. Romero approached Garcia and
asked why the employee was leaving. Garcia said that he had
to leave and Romero asked him to stay. Garcia left even
after Romero told the employee that he did not have permis-
sion to leave. Romero intended to discharge Garcia but when
Garcia returned the next day with a note from his child’s
doctor, Garcia was put back to work. The decision to allow
Garcia to return to work was made by Lee Batchelor, Re-
spondent’s comptroller. Batchelor was called as a witness by
Respondent but was not questioned as to this incident.
Garcia testified that when he returned to work the next
day, his timecard was missing. Garcia gave a written note
from his child’s doctor and was permitted to return to work.
Garcia’s account of these events is credited over that of
Gamez and Romero.
Garcia testified that on June 21, Romero did not permit
him and other employees to punch in because work was not
immediately available. Garcia and the other employees were
permitted to clock in about an hour later. However, Garcia
was given a warning for being late. No other employee was
given such a warning. Respondent’s timecards reveal that
nine employees clocked in earlier than Garcia on that date.
However, 12 employees clocked in later. There appears to
have been a 25-minute delay on that date.
Respondent never explained why Garcia was deemed late
or why the 12 employees who clocked in after Garcia were
not considered late. At trial, Respondent offered no expla-
nation for the discriminatory June 21 warning notice. In its
brief, Respondent speculates that Garcia’s tardiness caused
the employees on his line to be late as those employees
could not begin work until after Garcia had mixed the corn-
meal. I do not find support for that speculation. First, the
timecards show that there was a delay for all employees in
starting. Secondly, if Garcia caused a delay on his line,
Gamez or Romero could have so testified. The number of
employees that checked in after Garcia does not fit the the-
ory of Respondent’s brief. More importantly, I am not per-
suaded by arguments in the brief which have not been sup-
ported by evidence. See Madison South Convalescent Center,
260 NLRB 816, 830 at fn. 10 (1982).
Prior to April 1990, Garcia worked 60 to 80 hours per
week. Garcia worked on both the flour and corn tortilla lines
until April 1990. Corn line employees usually finished their
production first and then were assigned to help on the flour
tortilla lines. In April 1990, shortly before testifying at the
NLRB hearing, Garcia was assigned to the corn tortilla line
on a permanent basis.
In May, Garcia asked Romero why he was no longer
being assigned to the flour lines, after corn tortilla production
had been completed. Romero answered that he was only fol-
lowing orders in sending Garcia home when corn tortilla pro-
duction was completed.
Garcia’s work hours were reduced because Romero sent
him home when his work was completed. Previously a senior
employee like Garcia would be allowed to remain at work
and work on the flour lines. Such a senior employee would
be given preference over a junior employee.
The record shows that Respondent experienced problems
with the corn mix it purchased during the period from April
to July 1990. The result was that corn tortilla sales and pro-
duction were drastically reduced. However, this does not
205LA FAVORITA, INC.
2 Respondent’s records reveal that, in his last 6 weeks of employ-
ment, Garcia worked fewer hours than other employees, including
employees working along side him on the corn tortilla line. Thus,
the records indicate that Garcia was sent home earlier than other em-
ployees similarly situated. The records contradict rather than support
Respondent’s contention that Garcia was treated the same as other
employees working on the corn tortilla line.
completely explain Garcia’s reduction in hours. Based on
past practice, the question remains as to why Garcia was not
permitted to rotate to the flour tortilla lines after work on the
corn tortilla lines was completed.
Garcia’s testimony concerning the past practice was cred-
ible. This testimony was corroborated by Respondent’s
records and the testimony of Romero. I further credit Gar-
cia’s testimony that he requested to work more hours but that
Romero refused, stating he was following orders. In June
1990, Garcia found work at a hotel and worked two jobs
until quitting work for Respondent on July 3, 1990.2 Garcia
testified that he quit work because he could not earn enough
money working the hours assigned to him after April 1990.
Analysis and Conclusions
As indicated earlier, I have credited the testimony of Gar-
cia that Gamez told him to remember who signed his check
and that the checks did not come from the Union. These
comments, coming on the heels of Garcia’s testimony at the
Board hearing the preceding afternoon, tend to threaten that
Respondent will retaliate against employees who testify
against Respondent or otherwise support the Union. I note
that the record had not yet closed in the hearing. Accord-
ingly, I find that Gamez’ conduct violated Section 8(a)(1) of
the Act.
I have credited Garcia that on the day following the threat
found unlawful above, he asked for permission to leave work
to attend traffic court. Gamez gave Garcia 2 days off. I find
no credible explanation for the extra day off. Under all the
circumstances, and particularly the earlier threat, I find that
Gamez was attempting to establish that it was Respondent
and not the Union that controlled Garcia’s wages. Accord-
ingly, I find that Respondent violated Section 8(a)(1) and (4)
of the Act by suspending Gamez for testifying at the unfair
labor practice hearing and/or for supporting the Union.
As set forth above, on June 21, Garcia was given a warn-
ing for being late although he had been prevented from
clocking in for work. Other employees clocking in at the
same time or later were not given warnings. No credible ex-
planation for this disparate treatment was given. The expla-
nation offered on brief is not supported by the evidence. The
record compels a conclusion that the June 21 warning was
simply a continuation of the earlier retaliation against Garcia
for his testifying against Respondent and in favor of the
Union.
The Board has held that a constructive discharge is estab-
lished when it is shown that (1) the employer established
burdensome working conditions sufficient to cause the em-
ployee to resign and (2) the burden was imposed on the em-
ployee because of his protected activities. Crystal Princeton
Refining Co., 222 NLRB 1068, 1069 (1976); Algreco Sports-
wear Co., 271 NLRB 499, 500 (1984).
In Algreco Sportswear, an employee quit because she was
discriminatorily receiving the lowest of three wage rates. The
employee was not receiving a reduction in wages but receiv-
ing less than she was entitled to under a newly instituted sys-
tem. Although the Board found that the wage rate paid to the
employee was discriminatory, it refused to find that the bur-
den imposed by the employer was so intolerable as to force
the employee’s resignation. ‘‘The test is of necessity, an ob-
jective one, taking into account the circumstances of each
case. The mere existence of discrimination is insufficient to
warrant consideration of abandonment of employment as a
constructive discharge.’’ 271 NLRB at 500. See also KRI
Constructors, 290 NLRB 802, 813–814 (1988).
In American Licorice Co., 299 NLRB 145 (1990), the
Board found a constructive discharge in the company’s re-
fusal to allow an employee to transfer to the night shift. The
conditions on both shifts were equal. However, the employer
knew that the employee needed to transfer to the night shift
because she could not afford a babysitter for her children.
The employer’s discriminatory refusal to allow the employee
shift preference was deemed a constructive discharge. The
Board found a violation based on an unlawful motive for the
denial of the transfer and the finding that the employer could
have reasonably foreseen that its action would cause the em-
ployee to quit.
Here, I find that the discriminatory reduction in Garcia’s
hours of employment and resultant decrease in pay were so
difficult and unpleasant within the meaning of Algreco
Sportswear and American Licorice. I further find that these
changes in working conditions caused Garcia to resign. Im-
mediately following Garcia’s testimony, Respondent em-
barked on a course of conduct designed to show Garcia that
it had more economic leverage than the Union. Garcia told
Respondent that he wanted to work more hours and he ques-
tioned why he was not permitted to do so. The evidence es-
tablishes a past practice in which such requests would be
honored. I find that Garcia’s resignation was a reasonably
foreseeable consequence of the employer’s conduct. Garcia
had clearly indicated that he desired to work more hours. As
Respondent’s most senior employee, this preference would
normally have been granted. The evidence reveals that Re-
spondent was retaliating against Garcia because he testified
against Respondent’s interests or otherwise supported the
Union. The reduction in hours was an integral part of the re-
taliation which commenced the day after Garcia testified.
Whether Respondent intended that Garcia quit is immaterial.
Under the circumstances, Respondent should have reasonably
foreseen that the reduction in hours of work, with the result-
ant loss of pay, would cause Garcia to seek other employ-
ment.
Respondent must show by a preponderance of the evi-
dence that it would have engaged in this same conduct in the
absence of its unlawful motive. See Wright Line, 251 NLRB
1083 (1980). I conclude that Respondent has not met this
burden. Respondent has shown a slowdown in its corn tor-
tilla production, but Respondent has not shown that Garcia
would not have been reassigned to work on the flour tortilla
lines had Respondent not been concerned with demonstrating
to Garcia that it was Respondent and not the Union who paid
his wages. Under normal circumstances, Garcia would have
been permitted to work on the flour tortilla lines once corn
tortilla production was completed. Further, Garcia would
have normally been given preference over less senior em-
ployees in terms of total hours. Thus, the decrease in corn
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 While Respondent’s conduct may violate Sec. 8(a)(3) as well as
Sec. 8(a)(4), the charge and complaint only alleged a violation of
Sec. 8(a)(4). Thus, I make no finding regarding Sec. 8(a)(3). The
remedy is not affected by the absence of an 8(a)(3) allegation.
4 All motions inconsistent with this recommended Order are here-
by denied. 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.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
tortilla production would affect some employees, but it
should have had a lesser effect on Garcia. I note that the first
case was still pending before Judge Anderson at the time of
these events.
Under all the circumstances, I find that Respondent has
not sustained its burden of proving that Garcia’s hours of
employment would have been reduced absent discrimination.
Accordingly, I find that Respondent has violated Section
8(a)(4) and (1) of the Act as alleged in the complaint.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to effec-
tuate the purposes and policies of the Act.
I shall recommend that Respondent offer Petronilo Garcia
full and immediate reinstatement to the position he would
have held, but for Respondent’s unlawful discharge of him
in July 1990.
Further, Respondent shall be directed to make Garcia
whole for any and all loss of earnings and other rights, bene-
fits, and emoluments of employment he may have suffered
by reason of Respondent’s discrimination against him, with
interest. Backpay shall be computed in the manner set forth
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as provided in New Horizons for the Retarded, 283 NLRB
1173 (1987); see also Florida Steel Corp., 231 NLRB 651
(1977), and Isis Plumbing Co., 139 NLRB 716 (1962).
Respondent shall also be required to expunge any and all
references to its unlawful warning, suspension, and construc-
tive discharge of Garcia from its files and notify him in writ-
ing that this has been done and that these actions will not
be the basis for any adverse action against him in the future.
Sterling Sugars, 261 NLRB 472 (1982).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
threatening employees with loss of wages or other reprisals
for testifying at Board proceedings or for engaging in union
activities.
4. Respondent violated Section 8(a)(4) and (1) of the Act
by issuing Garcia a warning, suspending Garcia for a day,
reducing his hours of employment, and forcing Garcia to quit
his employment in July 1990, because Garcia had testified at
a Board proceeding and otherwise supported the Union.3
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, La Favorita, Inc., Denver, Colorado, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of wages or other re-
prisals because the employees testified at National Labor Re-
lations Board proceedings or engaged in union activities.
(b) Issuing unwarranted warning notices to employees be-
cause they testified at Board proceedings or engaged in union
activities.
(c) Suspending employees because they testified at Board
proceedings or engaged in union activities.
(d) Reducing the hours of employment of employees, con-
structively discharging them, or otherwise discriminating
against employees because the employees testified at Board
proceedings or engaged in union activities.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Petronilo Garcia immediate and full reinstate-
ment to his former position or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed.
(b) Make whole former employee Petronilo Garcia for any
and all losses incurred as a result of Respondent’s unlawful
reduction of hours and constructive discharge, with interest,
as provided in the remedy section of this decision.
(c) Expunge from its files any and all references to the
warning notice, suspension, reduction of hours, and construc-
tive discharge of Petronilo Garcia and notify him in writing
that this has been done and that the fact of Respondent’s un-
lawful conduct will not be used against him in any future
personnel actions.
(d) Post at each of its Denver, Colorado facilities copies
of the attached Notice marked ‘‘Appendix.’’5 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 27, in English, Spanish, and such other languages as the
Regional Director determines are necessary to fully commu-
nicate with employees, after being signed by Respondent’s
authorized representative, shall be posted for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure the notices are not
altered, defaced, or covered by other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
207LA FAVORITA, INC.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten employees with loss of wages or
other reprisals because the employees testified at National
Labor Relations Board proceedings or engaged in union ac-
tivities.
WE WILL NOT issue unwarranted warning notices to em-
ployees because they testified at Board proceedings or en-
gaged in union activities.
WE WILL NOT suspend employees because they testified at
Board proceedings or engaged in union activities.
WE WILL NOT reduce the hours of employment of employ-
ees or constructively discharge employees because the em-
ployees testified at Board proceedings or engaged in union
activities.
WE WILL NOT in any like or related manner interfere with
our employees’ exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL offer immediate and full reinstatement to em-
ployee Petronilo Garcia 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 privileges
previously enjoyed.
WE WILL make employee Petronilo Garcia whole, with in-
terest, for any and all losses he may have suffered as a result
of our discrimination against him.
WE WILL expunge from our files any and all references to
the warning notice, suspension, reduction in hours, and con-
structive discharge of Petronilo Garcia and WE WILL notify
him in writing that this has been done and that these per-
sonnel actions will not be used against him in any way.
LA FAVORITA, INC.