Moyer Packing Company

National Labor Relations Board - Administrative Judge Opinions

May 22, 2008

04-CA-035131 (N.L.R.B. May. 22, 2008)

JD-22-08
Souderton, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MOYER PACKING COMPANY
and Case No. 4-CA-35131
JOBS WITH JUSTICE
Jennifer Spector, Esq., & Margarita Navarro-Rivera, Esq.
for the General Counsel.
Thomas W. Scrivner, Esq. & Lucinda Schetter, Esq.
for the Respondent.
Robert Curley, Esq., for the Charging Party.
DECISION
Statement of the Case
GEORGE ALEMÁN, Administrative Law Judge. Pursuant to a complaint issued on May
21, 2007, by the Regional Director for Region 4 of the National Labor Relations Board (the
Board) against Moyer Packing Company (the Respondent), a hearing in this matter was held in
Philadelphia, Pennsylvania from August 6-10, and September 18-20, 2007.1 The complaint,
and amendments subsequently made thereto, alleges that the Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by discharging employees Geovanny
Guzman, Maria Garcia, Jensy Olivo-Muñoz (herein Olivo), Maximo Franklin Mercado Peralta
(herein Mercado Peralta), and Armando Ortiz de Jesus (herein DeJesus)2 for engaging in
protected concerted activity, and by advising an employee he need not attend the hearing in this
matter, and threatening him with discipline if he did so. In a timely filed answer, the Respondent
admits discharging the above employees, but denies engaging in any unlawful conduct.
All parties at the hearing were afforded a full and fair opportunity to be heard, to present
oral and written evidence, to examine and cross-examine witnesses, and to argue orally on the
record. Based on the entire record in this proceeding, including my observation of the
demeanor of the witnesses, and after considering the briefs filed by the General Counsel and
the Respondent,3 I make the following

1 All dates herein are in 2007, unless otherwise indicated. The unfair labor practice charge
underlying the complaint was filed by the Charging Party, Jobs for Justice, on January 17.
2 Mercado Peralta was also known at the facility by the nickname “Puerto Plata,” and
DeJesus was known as “Cuba.”
3 The parties’ briefs are herein identified as “GCB” for the General Counsel’s brief and “RB”
for the Respondent’s brief, followed by the page number(s). Reference to testimonial evidence
is identified by the transcript (Tr.) page number(s), and exhibits are identified as “GCX” for a
General Counsel exhibit, and “RX” for a Respondent exhibit, followed by the exhibit number(s).
The General Counsel and the Respondent both have filed separate motions to correct
certain inaccuracies and typographical errors in the record, as well as some limited objections to
certain changes to the record proposed by the other side. Thus, the Respondent proposes, but
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
2
Findings of Fact
I. Jurisdiction
The Respondent, a Pennsylvania corporation, is engaged in the processing and
rendering of beef products at a plant located in Souderton, PA. During the past year, the
Respondent sold and shipped goods valued in excess of $50,000 from its Franconia Township
plant directly to points outside the Commonwealth of Pennsylvania. The Respondent admits,
and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. Alleged Unfair Labor Practices
A. Factual Background
1. Respondent’s operations
The Respondent operates two facilities at its Souderton, PA location, one a meat
packing plant with some 1,100 employees, the other a “rendering” facility with some 200
employees approximately a mile away. At its meat packing plant, the Respondent employs
some 250 employees in its Slaughter or “kill floor” department, and about 500 employees at its
_________________________
the General Counsel opposes, that on transcript page 885, line 15, and page 888, lines 11, 13,
15, the name “Maritza” as shown therein be changed to read, “Marisol,” and that on Transcript
page 969, line 6, the name “Hernando” be changed to read, “Armando.” Given the General
Counsel’s opposition thereto, and as the Respondent has not demonstrated that the record, as
it currently stands, is incorrect with respect to these particular changes, the Respondent’s
motion to change “Maritza” to “Marisol” and “Hernando” to “Armando” on the above specified
pages is denied. In all other respects, and in the absence of further objection, the Respondent’s
motion to correct is hereby granted. As to the General Counsel’s motion, the Respondent takes
issue with or responds to certain of the changes proposed by the former. The General Counsel,
thus, seeks to change on Transcript page 57 the word “Yelled” to “Cried Out.” I find no basis for
making any such change, and note that, as pointed out by the Respondent, the words “Cried
out” are already included on the transcript number and page line referenced by the General
Counsel. The General Counsel also seeks to change “Ms. Spector” to “Mr. Scrivner” on
Transcript page 273, line 18, which change is opposed by the Respondent who argues that the
correction should read, “Margarita Navarro-Rivera.” I find the change unwarranted as it is, as
noted, opposed by the Respondent and as the change will have no bearing whatsoever on the
findings and conclusions reached in this matter. The Respondent also opposes the General
Counsel’s proposal to make the following changes to the record: The words “Be quiet” to “Shut
up” on Transcript page, 293, lines 11, 12; the words “A desirable” to “Undesirable” on page 327,
line 23; the word “Indiscernible” to “Fab” on page 335, line 20; the word “Weren’t” to “Were” on
page. 427, line 5; and the phrase “To the hearing” to “To the evidence adduced at the hearing”
on page 639, line 13. Other than its mere request to make these changes, the General Counsel
has not demonstrated, with respect to the changes opposed by the Respondent, that the record
as it now stands is incorrect. Absent such a showing, and in light of the Respondent’s
opposition thereto, the General Counsel’s motion to change the record in the manner just
described is denied. In all other respects, and absent further opposition thereto, the General
Counsel’s motion to correct the record is hereby granted.
JD-22-08
5
10
15
20
25
30
35
40
45
50
3
Fabrication department. Elliott Keller, an admitted agent of the Respondent under Section 2(13)
of the Act, is Vice-President of Operations and has overall responsibility for the operations at the
Souderton facility. Kelly Romaniello, an admitted supervisor within the meaning of Section
2(11) of the Act, is Respondent’s Director of Human Resources. Marisol Avila, an admitted
agent of the Respondent, and Evelyn Abreu, an admitted supervisor and agent, were, during the
relevant time period herein, employed respectively as a benefits coordinator and generalist in
the Human Resources (HR) department. Jose “Poli” Rivera, (herein Rivera) also an admitted
Section 2(11) supervisor, is slaughter superintendent and oversees the operation of the
Slaughter department. Below Rivera in the Slaughter department supervisory hierarchy is
Ramon Collazo, the Slaughter department general foreman, an admitted Section 2(11)
supervisor. Jaime Acosta, an admitted Section 2(11) supervisor, is the Fabrication department
superintendent. Another individual, Jorge (“Bombi”) Berios, (herein Berios) also worked as a
Section 2(11) supervisor in the Slaughter department during the relevant time period herein, and
retired in May 2007.
The record reflects that the Slaughter or “Kill Floor” department employees generally get
staggered 15-minute morning breaks starting around 9:30 a.m. In essence, those employees
who work at the top of the slaughter line begin their break when the last animal carcass passes
their work station; the break process is repeated throughout the line and lasts about one hour at
the end of which all employees in the department would have taken their breaks and been back
at work by 10:30 a.m.
2. The 2006 holiday bonus
The discharges in this case arose from an approximately 90-minute work stoppage that
took place inside the Respondent’s facility on the morning of December 15, prompted by the
Respondent’s failure to distribute Christmas bonuses to employees that morning.4 The record,
and in particular testimony from various employee and management witnesses, makes patently
clear that, notwithstanding the Respondent’s implicit suggestion to the contrary (RB: 3), the
Respondent regularly handed out bonuses around Christmas time every year.
Garcia began working for Respondent in January 2002, and testified she received
Christmas bonuses in 2003, 2004, and 2005. She testified that a few days before the
December 15, work stoppage, she asked Collazo if employees would be receiving a bonus with
their scheduled December 15, paychecks. The practice, she explained, was for bonuses to be
included in the last paycheck preceding the Christmas holiday. Collazo, she contends, replied
that he did not know, that employees might possibly receive a bonus consisting of 10 hours pay,
but that it didn’t matter to him because he had his $2,500 in his pocket. Garcia answered that it
mattered to her. Collazo denied having any such conversation with Garcia that week regarding
bonuses, or receiving a bonus himself. (Tr. 681-682).
According to Romaniello, as of the Fall of 2006, the Respondent had not planned on
distributing Christmas bonuses that year. It subsequently changed its mind and decided, a few
days before December 15, to distribute half of the usual yearly bonus, or a 10-hour bonus.
Romaniello was informed of the decision late December 13, and had intended to prepare a
memo to employees notifying them of the bonus, but failed to do so before employees received
their paychecks on December 15. (Tr. 1098; 1100).

4 As discussed infra, the work stoppage began at 9:45 a.m., when employees whose break
period was scheduled to end at that time refused to return to work.
JD-22-08
5
10
15
20
25
30
35
40
45
50
4
3. The work stoppage
(a) The first cafeteria episode
At 9:30 a.m. on December 15, Garcia picked up her paycheck and went to the
Company’s cafeteria to begin her 15-minute morning break. On entering the cafeteria, Garcia
observed some 20-25 employees already there presumably taking their breaks. She recalled
that when she joined this group, there was some discussion going on about the absence of a
Christmas bonus in the paychecks, and remarks being made about not returning to work until
employees received an explanation as to why the bonuses were not distributed.
Quality Assurance employee Nereida Roman, a Respondent witness, recalled being in
the cafeteria around the same time and noticing a small group of about five employees,
including Garcia, seated at a table and not returning to work after their break period ended. She
claims she asked the group why they were not returning to work, and that all responded
collectively that they were not going up because of the bonus issue. Roman contends that she
then saw a supervisor, identified as Eric, nearby and told him to call Berios and Rivera and let
them know not to resume the “kill” floor production line because employees from the department
were not planning to return to work. (Tr. 1015). A short while later, she saw Rivera entering the
cafeteria, walked over to him and told him, as he was by the doorway entrance to the cafeteria,
of the conversation she had just had with the employees. Rivera then went over and began
speaking to the employees.
Garcia testified that when Rivera asked why they were not returning to work, she and
other employees replied they were staying put until they received an explanation from
management as to why they had not received Christmas bonuses. Garcia contends that Rivera
told him he could not answer their questions, and yelled at them to return to work, stating that
they were not doing anything by sitting around, and that this was not the way to address the
bonus issue. Rivera, she contends, then called security on his handheld radio. “Kill Floor”
employee Manuel Cruz recalled Rivera simply asking why employees had not returned to work,
and then instructing them, collectively at first, and then individually, that they should go back to
work. When they refused to do so, he called security on his radio and remarked, “You’re out of
here.” Hernandez similarly recalled Rivera telling employees to return to work, employees
insisting that they wanted an explanation regarding the bonuses, and Rivera responding that if
they were not going to return to work, they should go back to their houses. Hernandez
interpreted Rivera’s remark to mean that if they did not go back to work, they would be fired.
Rivera, according to Hernandez, then called security on his handheld radio. Villar offered
similar testimony, testifying that when employees told Rivera they were not going back to work
until the bonus issue was resolved, Rivera answered that they should return to work or leave the
premises. Rivera, he contends, then asked each employee individually if they were returning to
work. 5 (Tr. 429; 484; 519; 526)

5 Hernandez, Cruz and Villar, all of whom were subpoenaed to testify, were still in the
Respondent’s employ when they testified at the hearing. Villar explained that he would not
have testified had he not been subpoenaed. During Hernandez’ direct examination, the General
Counsel moved to amend the complaint to allege, based on Hernandez’ testimony, that the
Respondent, through Collazo, further violated Section 8(a)(1) of the Act by telling Hernandez
that he did not have to honor the subpoena, and by threatening to issue him a warning if he
complied with the subpoena. The motion was granted and the Respondent amended its answer
to deny the allegation. (Tr. 500-503).
JD-22-08
5
10
15
20
25
30
35
40
45
50
5
Kill floor employee Evelin Navarro, another Respondent witness, testified she was on
break in the cafeteria when the work stoppage began. She realized at the time that something
unusual was happening when some five or so employees in the cafeteria stated they were not
returning to work. Rivera, she contends, showed up a short while later and tried to calm the
employees down, whom she described as being excited, by urging them to return to work, and
telling them that a meeting would be held to discuss the bonus. The employees, however,
replied that they were not returning to work. According to Navarro, alleged discriminatees
DeJesus and Mercado Peralta were also present, along with Garcia, in the cafeteria when the
work stoppage began.6 (Tr. 1038-1039; 1051)
Rivera offered a different version of his discussion with employees in the cafeteria that
morning. Thus, he testified that when employees told him they were not returning to work, he
assured the group they were getting a 10-hour bonus. The employees, he contends, refused to
take his word and insisted on speaking with some higher management official. He purportedly
told employees that they should return to work and that he would talk to the higher official
sought by the employees and schedule a meeting to discuss the bonus. He also recalls
instructing them to either return to work or leave the plant. Rivera described Garcia as the most
outspoken employee in the group during this exchange, and perceived her to be the employees’
representative. Roman’s recollection on cross-examination, that Garcia was “the only person”
in the group of cafeteria employees she could remember saying they would not return to work
because they did not receive their Christmas bonus, like Rivera’s above testimony, makes
patently clear that Garcia served as the employees’ principal spokesperson at the onset of the
work stoppage. (Tr. 867; 797; 1033).
Garcia disputed Rivera’s claim that he told employees in the cafeteria they would be
getting a 10-hour bonus or that a meeting would be held with employees to discuss the bonus
issue. None of the General Counsel witnesses, e.g., Cruz, Hernandez, or Villar, who testified to
being present in the cafeteria when Rivera spoke to them, made any mention in their testimony
of hearing Rivera refer to a 10-hour bonus for employees, or suggesting that a meeting could be
held after work to discuss the bonus issue. Notably, the two Respondent witnesses who
testified to being in the cafeteria when Rivera spoke to employees, Roman and Navarro,
likewise made no mention in their testimony of hearing Rivera tell employees they were getting
a 10-hour bonus, although, unlike Garcia, Cruz, Hernandez, and Villar, they did recall hearing
Rivera tell employees they could have a meeting after work to discuss the bonus issue. I find,
as claimed by Garcia, which claim is bolstered by both the General Counsel’s and the

6 Navarro was confused in describing which of the discriminatees was present during the
first cafeteria episode. As noted, she named Garcia, DeJesus, and Mercado Peralta, among
others, as having been present. However, she also claimed that employee “Puerto Plata” was
present, along with Mercado Peralta. Both “Puerto Plata” and Mercado Peralta, as noted, are
one and the same person, “Puerto Plata” being Mercado Peralta’s nickname. Although afforded
an opportunity on cross-examination by the General Counsel to clarify her answer, Navarro
insisted that “Puerto Plata” and Mercado Peralta are different persons. I am convinced that
Navarro had no idea who “Puerto Plata” aka Mercado Peralta was, and that she lied in claiming
to have seen both Puerto Plata and Mercado Peralta in the cafeteria when the work stoppage
first began, since it is beyond dispute, that Puerto Plata and Mercado Peralta are one and the
same. Further undermining Navarro’s testimony in this regard is the fact that she was the only
witness to have placed DeJesus and Mercado Peralta in the cafeteria when the work stoppage
began, and the fact that the Respondent itself readily concedes, on brief (RB:5) that neither
DeJesus nor Mercado Peralta were in the cafeteria at the time Navarro claimed to have seen
them.
JD-22-08
5
10
15
20
25
30
35
40
45
50
6
Respondent’s witnesses, that Rivera did not mention the 10-hour bonus to employees during his
discussion with them in the cafeteria. Rivera, I am convinced, simply lied about having done so.
Garcia also identified Berios, who voluntarily resigned in May 2007, but was a supervisor
at the time of the December 15, work stoppage, as having been present in the cafeteria soon
after the work stoppage began. Rivera did not recall seeing Berios in the cafeteria that morning,
or, for that matter, during the hallway episode discussed below. Garcia recalled Berios asking
employees to return to work, and employees responding that they would not return to work until
someone “big” came down to speak with them on why they did not receive bonuses. Berios,
she recalled, assured employees they would receive an answer, but again requested that they
return to work.
Berios, a General Counsel witness, testified that, at around 9:45 a.m. on December 15,
he became aware that several kill floor employees who began their break at 9:30 a.m. had not
yet returned to the production floor. Soon thereafter, he received word from one of his
leadpersons, and from supervisor Geraldo Cisnero, that something was happening in the
cafeteria. Berios then went to the cafeteria where he found Rivera exiting the cafeteria. As he
was exiting the cafeteria, Rivera, Berios contends, told him that “Whoever don’t go back to work
is going to get fired.” Rivera denied making any such statement to Berios or to the employees
in the cafeteria, and, in fact, denied seeing Berios at all either in the cafeteria during this first
episode or during the hallway episode discussed below. Villar and Cruz also claimed to have
seen Berios in the locker room right after employees left the cafeteria, and to hearing Berios ask
employees to come out into the hallway because Keller wanted to speak with them. I credit
Berios and Garcia and find that Berios was in the cafeteria at the early stage of the work
stoppage and, at some point, encountered Rivera in the cafeteria. Further, from my personal
observation of his demeanor as a witness, and his overall testimony, Rivera struck me as
someone who would have made the comment attributed to him by Berios about firing
employees who refused to return to work.7 (Tr. 579; 801; 835; 42). Rivera, as noted, was not

7 Berios, who was subpoenaed to testify, voluntarily left his 28-year employment with the
Respondent in May 2007, testifying that he did so because he could no longer put up with the
way Rivera and Collazo treated employees. The Respondent, through testimony from Rivera,
sought to portray Berios as a former disgruntled employee who quit only because he was about
to be fired, and argues that his testimony is biased and should be discredited. (RB:31, fn. 8).
Rivera’s testimony in this regard is that, from time to time in 2007, he, Keller, and Collazo
discussed performance problems Berios was having, and that he discussed these problems
with Berios, although he could not recall when. Berios denied having had any such discussions
with Rivera. Rivera also claimed that he was planning to meet and discuss another
performance-related problem with Berios at the end of the latter’s shift a day before Berios quit
but that the latter did not show up for the meeting. He further contends that when Berios
showed up the following day, he informed Berios he was suspended and could go home and
would be called in. Berios resigned soon thereafter. Rivera claims that Berios was about to be
fired before he left, intimating in his testimony that the decision to terminate Berios may have
been discussed between himself, Romaniello, and Fisher (Tr. 857). However, other than
Rivera’s questionable testimony, the Respondent produced no documentary or testimonial
evidence to corroborate Rivera’s claim that Berios was having performance-related problems
and was about to be terminated. Thus, neither Keller or Collazo, both of whom, according to
Rivera, took part in discussions regarding Berios’ poor performance, provided any testimony
regarding Berios’ alleged poor performance. Nor, for that matter, were Romaniello or Fisher
questioned on whether, as implicitly suggested by Rivera, they had at any time discussed
terminating Berios. Further, no written or other documentary evidence, such as performance
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
7
being truthful in claiming to have told employees in the cafeteria that they would be receiving a
10-hour bonus.
This first cafeteria episode lasted some 15 minutes. This group of employees, which
Rivera contends, had grown to some 20-25, then exited into a hallway adjacent to the cafeteria
which provides access to employee locker rooms and other production areas of the facility.
Some of the employees apparently went directly to the locker rooms, yelling, hooting, and
hollering as they did so, according to Rivera. The situation, however, did not end there but
rather resumed shortly thereafter in the locker room hallway. The alleged misconduct which led
to the eventual discharge of the named discriminatees purportedly began in the hallway. (Tr.
795-798).
(b) The hallway episode
Berios testified that after leaving the cafeteria, the employees went through the hallway
into the locker rooms, presumably preparing to leave the facility because, on entering the locker
room after them, he saw them changing out of their uniforms and into street clothes. Berios
urged employees to step out into the hallway so he could discuss their concerns with them.
Cruz recalled seeing Berios in the locker room and asking employees to come out to the
hallway because Keller wanted to speak with them (Tr. 527).8 On exiting the locker room into
the hallway, Berios observed that Rivera and Collazo were already there.
Rivera recalled following the group from the cafeteria into the hallway, believing they
were going home, and seeing Keller arrive on the scene soon thereafter. He claims that he
went up to Keller and explained what had just transpired in the cafeteria moments earlier, at
which point Keller decided to introduce himself to, and to speak with, the employees. (Tr. 727;
801). Rivera recalled seeing Collazo in the hallway, along with Avila, and Romaniello for a brief
moment, as well as Security captain Bryan Bednar, although he did not know when Bednar
arrived on the scene.
Keller testified that he first learned employees were in the cafeteria refusing to work over
the bonus issue from Romaniello at around 10:05 that morning, a claim that was not
substantiated by Romaniello.9 On arriving at the hallway, Keller found some 30-50 employees
_________________________
write-ups or ratings, were produced to corroborate Rivera’s claim that Berios was not performing
up to par and was on the verge of being terminated just before he voluntarily resigned. On
redirect examination by the General Counsel, Berios pointed out that he had, in fact, received
during all of 2006 and in the first quarter of 2007, several plaques along with a cash bonus of
$500 for his overall performance. Although the plaques were never actually produced, the
Respondent did not contest or refute Berios’ claim in this regard. I credit Berios and find that he
indeed received the performance awards mentioned in his testimony. I further reject as not
credible Rivera’s assertion that Berios was having performance problems and was about to be
fired before voluntarily resigning.
8 Berios’ assertion that he told employees to come out of the locker room as he wanted to
speak with them, as noted, differs somewhat from Cruz’ and Villar’s recollection that Berios told
them Keller wanted to speak with them. I credit the mutually corroborative account provided by
Cruz and Villar.
9 Romaniello testified that she learned of the employee protest from Avila around 10:00
a.m., and that, when she and Avila went to investigate, they found Keller already in the hallway
addressing the employees. Romaniello made no mention in her testimony of having notified
Keller of the situation. Her testimony suggests, implicitly, that Keller was already aware of the
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
8
heading towards the locker room, with Rivera behind them. Rivera, he contends, then
explained to him that, while in the cafeteria, employees had insisted on knowing where their
bonuses were, and demanded a 20-hour bonus, as had been paid in the past. He further
recalled Rivera saying that he had told employees they would be receiving a 10-hour bonus,
and that, if they were not satisfied, a meeting would be held after hours to discuss and resolve
the issue. Finally, Keller claims that Rivera told him that when employees refused to return to
work, he (Rivera) told employees they would have to either return to work or leave the premises.
Like his uncorroborated assertion that Romaniello told him of the work stoppage, part of
Keller’s claim as to what Rivera told him had occurred or was said in the cafeteria also lacks
corroboration. For example, as found above, Rivera never told employees in the cafeteria they
were getting a 10-hour Christmas bonus, making it highly likely, therefore, that Rivera would
have made such a representation to Keller, unless, of course, Rivera misrepresented the facts
to Keller. However, it bears noting that Rivera never actually testified to having made this
specific statement to Keller, for when asked what he and Keller talked about that morning in the
hallway, Rivera replied, without being specific, that he only told Keller “what had happened in
the lunchroom, and what the issue was with the employees.”10 Keller’s further claim, that
Rivera told him employees in the cafeteria had demanded a 20-hour bonus, also finds no
support in Rivera’s testimony, or in the testimony of the other witnesses who were in the
cafeteria during Rivera’s exchange with the employees. Thus, in describing what occurred
between him and the employees in the cafeteria, Rivera never stated that employees had
demanded a 20-hour bonus. Nor did Garcia, Cruz, Villar, Hernandez, Roman, or Navarro,
mention in their testimony hearing employees demand a 20-hour bonus. Rather, their
testimony, for the most part, reflects only that employees were refusing to return to work until
they received an explanation from upper management as to why they had not received any
Christmas bonuses. Accordingly, I find Keller’s above description of what Rivera purportedly
told him occurred or was said in the cafeteria not to be true. Rather, I find it more likely than not
that Keller simply embellished on what Rivera may have told him in an effort to bolster the
Respondent’s position in this matter.
After speaking with Rivera, Keller began addressing the employees in both Spanish and
English, with some interpreting help at times from Rivera. He recalled that he and Rivera were
next to each other in the midst of, and surrounded by, the 30-50 employees in the hallway. The
crowd, he contends, grew at one point to between 80-120 employees as other employees
entered the hallway. Keller claims that he introduced himself to the employees, told them he
understood they were upset about not getting a Christmas bonus, and then informed them they
would be receiving a 10-hour bonus, but that he was not at liberty or had the authority to make
any changes to the bonus amount, or to discuss it at that time.11 He purportedly told employees
_________________________
protest by the time Romaniello arrived on the scene, and that someone other than Romaniello
must have notified him of what was transpiring. (Tr. 1101).
10 Rivera testified that during the hallway episode, Keller explained to employees “the same
thing I explained, which would have been the 10-hour bonus.” (Tr. 814). This rather vague and
ambiguous assertion by Rivera is insufficient to support a finding that Rivera told employees in
the cafeteria that they were getting a 10-hour bonus. Rivera’s statement in this regard does not
make clear where and when Rivera made this representation to employees. As noted, none of
the other employees who testified in this proceeding as having been present in the cafeteria
testified to hearing Rivera make any such “10-hour bonus” comment to employees.
11 The Respondent’s claim on brief (RB:7), that the employees demanded a 20-hour bonus
in response to Keller’s assurance they would be getting a 10-hour bonus, lacks evidentiary
support. The Respondent bases its claim in this regard on testimony provided by Cruz.
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
9
that he could hold a meeting after work to discuss the matter. Two employees, whom he
subsequently identified as Mercado Peralta and Olivo, and occasionally DeJesus, yelled and
shouted aloud and prevented him from addressing the group as a whole. He recalled hearing
these employees remark that “the bonuses are right, we’re not animals, we’re human beings,
you owe us the bonus and we’re not leaving here until we get it,” and observing DeJesus
banging on lockers. (Tr. 731)
Keller claims that as he continued trying to tell employees that a meeting would be held
to resolve the bonus issue, Mercado Peralta, DeJesus, and Olivo repeatedly interrupted him
with their yelling and shouting while other employees expressed interest in hearing what he had
to say. Both Keller and Rivera claim that Mercado Peralta, Olivo, and DeJesus stood only about
12 inches from them during this entire hallway episode. They both contend that on several
occasions, DeJesus would come up to them, get in their faces and yell out loud, and turn and
walk away while he banged on lockers. Rivera recalls seeing these three employees raise
clenched fists in the air as they shouted and yelled. However, despite their alleged close
proximity, e.g., 12 inches, to these three employees, both Keller and Rivera claimed not to have
understood what these three employees were saying to them because they were yelling and
shouting so loud, and that their yelling and shouting prevented him from communicating with
other employees in the hallway. (Tr. 731-735). This latter claim by Keller and Rivera about
being unable to communicate with employees in the hallway due to this alleged shouting and
screaming is undermined by Roman who testified that she was able to hear Keller clearly
because he has a strong voice which carried over the employees’ voices. Having heard him
testify at the hearing and observed his demeanor, I am satisfied that Roman’s description of
Keller as having a strong voice was accurate, and am further convinced that, as suggested by
Roman’s testimony, Keller was capable of, and in all likelihood did, effectively communicate his
message to the crowd of employees in the hallway.
It is undisputed that Keller, at one point, directed Bednar to remove Olivo from the
scene. Keller testified that he became frustrated at Olivo’s refusal to let him communicate his
message to employees, explaining that for a period of about 10-15 minutes, Olivo stood only 6-
12 inches from his face and yelled and spoke very aggressively. However, as found above,
Keller’s professed inability to communicate his message to employees due to the noise
allegedly created by Olivo and other employees in the hallway is simply not credible. According
to Keller, as Bednar stepped forward to escort Olivo out, several employees, including Mercado
Peralta, DeJesus, and Garcia encircled both Olivo and Bednar to prevent the removal. Keller
claims that, as employees did so, he “believes” he heard them say, “No, you’re not going to take
him, we stand together.” He contends that on hearing these comments, it became apparent to
him that “there would have been a fight…if [Bednar] had proceeded with removing [Olivo] from
the group.” Concerned for Bednar’s, as well as Rivera’s and his own, safety, Keller claims he
directed Bednar to step back out of the crowd. Bednar, as more fully discussed below, gave a
somewhat different version of this event. Bednar, it should be noted, makes no mention in his
testimony of being ordered by Keller to step away from the crowd. Rather, he testified that
_________________________
However, Cruz’ testimony on this matter was ambiguous. For example, in answer to a question
by Respondent’s counsel on whether Keller told employees there would be a 10-hour bonus,
Cruz replied, “Yes, but the employees were demanding 20-hours bonus.” However, a few
questions later, when Respondent’s counsel again asked Cruz if the “workers were demanding
a 20-hour bonus,” the latter answered, “No, that is what they usually gave.” (Tr. 558; 560).
Cruz’ rather ambiguous response to this particular question simply does not support the
Respondent’s assertion on brief that employees had expressly demanded a 20-hour bonus
when told by Keller they would be receiving a 10-hour bonus.
JD-22-08
5
10
15
20
25
30
35
40
45
50
10
when employees began encircling Olivo, he simply put his hand up and backed away from the
crowd on his own.
Called as a witness for the Respondent, kill floor employee Angela Boyrie testified that
she went on break at around 10:40 a.m. and witnessed some of the events that were occurring
in the hallway. She claimed that when she got there at 10:40 a.m., there were some 100-200
employees gathered in the hallway yelling and screaming that they wanted their bonuses, that
“they don’t give a shit on what was going on,” and “didn’t want to hear any more excuses.” She
contends that certain employees were “just cursing and yelling and pointing fingers.” According
to Boyrie, Rivera and Collazo were already there trying to calm the employees down, and Keller
arrived some 15 minutes later, which, if Boyrie is to be believed, would place Keller’s arrival in
the hallway at around 10:55 a.m. However, Keller, as noted, testified he arrived in the hallway
some 50 minutes earlier, at 10:05 a.m., long before Boyrie’s arrival. Boyrie’s claim that Keller
arrived some 15 minutes after she did is rejected as not credible since it contradicts not only
Keller’s testimony but that of almost all other witnesses who testified to being present in the
hallway that morning.
Boyrie further testified that, during the exchanges that occurred in the hallway that
morning between Mercado Peralta, Olivo, and other employees on the one hand, and Keller and
Rivera on the other, she stood some five feet behind Keller and Rivera. Yet, unlike Keller and
Rivera, who as noted, claimed not to have understood what the employees were saying, Boyrie
was able to hear and understand what Mercado Peralta, Olivo, and other employees were
saying. She recalled, for example, hearing Guzman complain that “they shouldn’t be treated
like dogs or nothing like that because they work too hard for them not to be getting a bonus.”
(Tr. 989; 1004).12
Boyrie further testified that Mercado Peralta and others, including Guzman, repeatedly

12 Boyrie’s assertion that she was able to hear and understand what Mercado Peralta,
Guzman, and the other employees were saying to Keller and Rivera stands in sharp contrast to
Keller and Rivera’s professed inability to understand what the employees were saying. Both
Keller and Rivera were apparently standing closer to these employees than was Boyrie during
these exchanges. Clearly, if Boyrie, who was further away, could hear and understand what
Mercado Peralta, Olivo, Guzman and other employees involved in these exchanges were
saying to Keller and Rivera, it is reasonable to assume that the latter should likewise have had
no problem understanding what was being said by the employees, particularly since, by Boyrie’s
own account, most of the other employees in the hallway were “quiet most of the time.” I reject
as not credible Keller’s and Rivera’s claim that they could not understand what Mercado Peralta,
Olivo, DeJesus, or any other employee who spoke up that day were saying. The evidence
makes clear that both Keller and Rivera are conversant in, and understand, Spanish, making it
highly unlikely that their alleged failure to understand what these employees were saying was
due to a language barrier. Neither Keller nor Rivera, in any event, has made that claim. Rather,
their testimony is that, despite allegedly being only 12 inches from them, they could not
understand what Mercado Peralta, Olivo, DeJesus and others were saying because the latter
were simply yelling and shouting too loudly. Paradoxically, Rivera, as noted, was able to testify
as to what Keller said to employees, but oddly enough, could not do the same regarding the
employees’ remarks even though he was standing close to both Keller and the employees.
Boyrie’s testimony undermines their claim in this regard. Further, it simply defies logic and
common sense to believe that, while allegedly standing only 12 inches from them, Keller and
Rivera were unable to make out, much less hear, what any of these employees was trying to
convey to them, even if, as they contend, these employees were speaking loudly or shouting.
JD-22-08
5
10
15
20
25
30
35
40
45
50
11
yelled and cursed and pointed fingers at Rivera and Keller, a claim denied by Mercado Peralta,
Olivo, and Garcia, which denial is supported by Villar, Hernandez, and Cruz.13 (Tr. 437; 488;
531-532). Berios also denied hearing any curse words or profanity used by any of the alleged
discriminatees. Further, while claiming that Mercado Peralta, Olivo, and DeJesus were loud
and disruptive in the hallway, neither Keller nor Rivera claimed in their testimony to have heard
cursing or profanity used by the alleged discriminatees in the hallway or at any time during the
work stoppage. Boyrie’s claim, therefore, of having heard profanity and curse words being used
by the alleged discriminatees in the hallway that morning strikes me as a gross exaggeration, if
not outright fabrication, unworthy of belief.
Roman testified that after leaving the cafeteria, she joined the other employees as they
congregated in the hallway. She recalled seeing Rivera, Collazo, and Keller, along with other
supervisors in the hallway, but did not recall if Berios was present. Her recollection is that
employees were all talking at the same time and loudly. She recalled hearing DeJesus
complain that they had not been told about the bonus and they intended to fight for their rights.
Keller, she contends, was responding to employee questions and told them to calm down, that
they were going to have a meeting after work to discuss the bonus issue. Employees, she
contends, were “kind of excited…and talking at the same time.” She recalled hearing Keller tell
employees to please calm down and return to work, that there would be a meeting after work to
address the bonus issue. She contends that while employees were all together talking louder
than Keller, she nevertheless was able to hear Keller over the noise of the crowd because Keller
has a strong voice which carried over the employees’ voices. At one point, Roman’s supervisor,
Jose Raspaldo, instructed her to return to the production area, which she did. She testified that
when she left the hallway to return to work, everybody was already calm. (Tr. 1020-1023).
Navarro’s account of the hallway episode is that after employees left the cafeteria, they
went into the hallway where Keller, Rivera, and Collazo tried to calm them down. She contends
that in the hallway, she stood in front of the three managers as Keller tried to convince
employees to let the matter be discussed at a meeting. Employees, however, refused to let
Keller speak and were all “screaming.” In particular, she identified two individuals -- “Cuba” aka
DeJesus and Mercado Peralta -- as the more vocal ones. Her testimony in this regard,
however, was somewhat confusing and ambiguous. Thus, while claiming that DeJesus and
Mercado Peralta were doing most of the “yelling,” on cross-examination, Navarro, as previously
noted, demonstrated that she had no idea who Mercado Peralta was. For example, asked by
the General Counsel if Garcia and “Puerto Plata” aka Mercado Peralta were also in the hallway
while this was going on, Navarro seemed uncertain, replying, “Maybe they were there, but I
don’t know,” adding there were many people present and that all she could hear was DeJesus
and Mercado Peralta. Pressed for a more definitive answer on whether or not she saw Garcia
and “Puerto Plata” in the hallway, Navarro finally answered she had not. (Tr. 1054). It is
patently clear that Navarro’s testimony of having seen Mercado Peralta yelling in the hallway,

13 I found Hernandez’ and Cruz’ testimony to be reliable and trustworthy. As stated, both
testified while still in the Respondent’s employ. While no presumption of credibility attaches to
an employee who testifies while still in his or her employer’s employ, the Board nevertheless
often observed that such testimony is “apt to be particularly reliable.” Advocate South Suburban
Hospital, 346 NLRB 209, fn. 1 (2006); Frazier Industrial Co., 328 NLRB 717, 724 (1999).
Fitel/Lucent Technologies, Inc. 326 NLRB 46, 53 (1998); International Carolina Glass Corp.,
319 NLRB 171 (1995). From my observation of their demeanor on the witness stand, and their,
at times, mutually corroborative testimony, I find that Hernandez and Cruz testified honestly and
truthfully. As to Villar, while there are some inconsistencies in his testimony, for the most part
he came across as credible.
JD-22-08
5
10
15
20
25
30
35
40
45
50
12
like her claim of seeing him in the cafeteria when the work stoppage first began, is unreliable
and not worthy of belief. Finally, Navarro claims that while in the hallway, she observed
Guzman came within one foot of Rivera and tell him that “he was one of the worst enemies of
the employees.” (Tr. 1042).
Collazo testified that he showed up in the hallway after receiving a call from Rivera about
employees gathering in the locker room area. When he arrived, he found some 20-25
employees gathered around Keller and Rivera and being “rowdy.” He also recalled seeing
Romaniello and Avila in the hallway at that time, as well as Mercado Peralta, Olivo, and
DeJesus. Collazo testified that as Keller tried to speak to the employees, Mercado Peralta,
Olivo, and DeJesus spoke louder than Keller, preventing the latter from being heard, and
becoming aggressive by yelling and getting closer to Keller. He contends that Mercado Peralta
was standing some 1-2 feet from Keller during their exchanges, while Olivo and DeJesus stood
about 3 feet away from Keller. Garcia, he further contends, was standing “almost next to” Avila,
and some two feet behind Keller. Collazo recalled Keller telling employees they would be
getting a 10 percent bonus, but could not say when they would receive it. Like Keller and
Rivera, Collazo did not describe what Mercado Peralta, Olivo, DeJesus, or any other employee
may have said to Keller and/or Rivera during the hallway episode, although he did not claim, as
did Keller and Rivera, that he was unable to understand what these employees were saying.
(Tr. 668-669; 672).
Both Romaniello and Avila arrived in the hallway soon after Keller began addressing the
employees. Romaniello testified she learned of the work stoppage from Avila, who purportedly
heard it from another unidentified employee. Romaniello recalled seeing Keller and Rivera
standing in the middle of some 50-80 employees and hearing Keller speaking to the employees
in Spanish. As she does not speak Spanish, Romaniello did not understand what Keller was
saying to employees. However, she testified that from the outside perimeter of the crowd where
she was then standing, she could hear Keller clearly, describing his voice as “very loud,” and
proffered that had Keller been speaking in English, she would have had no difficulty hearing and
understanding Keller’s words. Romaniello’s testimony regarding her ability to hear Keller clearly
over the noise in the hallway corroborates Roman’s similar claim. At one point, an employee
Romaniello identified only as “Johnny” escorted her through the crowd to where Keller and
Rivera were standing. According to Romaniello, Avila did not follow her through the crowd, and
she did not know where Avila went after both arrived on the scene. Avila, however, claims that
“Johnny” escorted both her and Romaniello through the crowd to where Keller and Rivera were
(1105; 954). Romaniello testified that as she stood next to Keller and Rivera, the crowd
encircled them and that, when Keller tried to address the crowd, employees began yelling with
their arms in the air, pointed in Keller’s face, and kept getting closer to them. After about three
minutes, Romaniello, unable to control the crowd and fearful that something might happen, left
the hallway, returned to her office, and placed a call to Human Resources Vice President
Daubenspeck, to advise him of what was transpiring, and to seek advice on what to do.
Romaniello claims she never spoke to employees during this hallway incident. (Tr. 954; 1105-
1108)
Avila testified that on arriving at where Keller and Rivera were standing, she took a
position right next to Keller on his left side as he tried to speak to employees. She contends,
however, that Keller had difficulty speaking to employees because, as she voluntarily repeated
throughout her testimony, the employees were “out of control.” Keller, it should be noted,
denied seeing Avila at all during the entire the hallway episode. Keller’s denial notwithstanding,
I find that Avila, as testified to by her and as corroborated by various other witnesses, was
indeed present in the hallway, although where she actually stood vis-à-vis Keller is somewhat in
question. I find it difficult to accept, however, that Keller would not have seen or noticed Avila
JD-22-08
5
10
15
20
25
30
35
40
45
50
13
standing next to him if that indeed was the case. Romaniello apparently left the area soon
thereafter, but Avila remained in the event she was needed to interpret. Like Keller and Rivera,
Avila, who speaks and understands Spanish, claimed not to have understood what the
employees were saying to Keller in the hallway, stating, at one point, that she could not
remember whether employees were speaking in Spanish or English because everyone was
yelling and “out of control.” (Tr. 978-979). Avila further claimed not to have seen either Mercado
Peralta or DeJesus in the hallway that day, a claim I find hard to believe in light of her admission
that she was standing right next to Keller, who, in turn, claimed to have been standing only 12
inches from Mercado Peralta, DeJesus, and Olivo.14
Although she did not know Garcia at the time, Avila recalled that Garcia was one of the
employees who stepped forward to prevent Olivo’s removal from the hallway. She claimed that
as this was occurring, she made eye contact with Garcia, who was standing some 3 feet from
her, and heard Garcia say that if Olivo were removed, everyone else was going to leave. She
did not respond to Garcia, but testified that as employees moved forward to prevent Bednar
from removing Olivo, Garcia grabbed her wrist tightly for a split second, and then pushed it
down, which, she contends, made her even more fearful than she already was by the situation
occurring in the hallway. Garcia, who testified she the others were standing on one side of the
hallway some 5-6 feet from the managers, denied either grabbing or touching Avila in the
hallway, and none of the General Counsel or Respondent witnesses who purportedly were
present in the hallway and observed Avila there testified to having seen Garcia grab, push, or
touch Avila. Avila contends that after this alleged incident with Garcia, she left the hallway and
headed to Romaniello’s office where she told the latter that “someone,” whom she did not know,
had grabbed her hand and pushed it down. She testified she had no further talks or discussion
with Romaniello that Friday about this “touching” incident. Avila, however, claimed that at some
subsequent point in time, presumably the following Monday since, by her own admission, she
had no further discussions with Romaniello on Friday, Romaniello came to her with a photo of
Garcia and asked her to identify if this was the person who had “touched” her. Avila told her it
was. (Tr. 971) Unexplained by Avila is how Romaniello could have known on Monday,
December 18, which employee picture to show Avila to have her identify who had touched her
on Friday. Romaniello could not have gleaned that information from anything Avila purportedly
said to her on Friday, for Avila testified only to have told Romaniello that some unknown person
had grabbed her hand in the hallway, and had no further conversations with her that day.
Romaniello was vague on when, and from whom, she first learned of this alleged
touching incident, claiming she simply could not recall when she was told or who told her of it.
Romaniello testified that at her request, and for purposes of having her identify a photograph of
the person who allegedly touched her, Avila came to her office between 9-10:00 a.m., Monday,
December 18, and, once there, asked Avila to describe the “touching” incident to her.
Romaniello believes Avila may have, during this meeting, mentioned the name Garcia to her,
but she could not be sure of the name. However, when asked if this Monday meeting with Avila
was the first time she heard of any incident involving Garcia, Romaniello replied, “I think so. I
don’t recall having a discussion of that on Friday. I just don’t remember it.” Further, when asked
if she knew anything about Garcia’s involvement in this “touching” incident before that Monday,
December 18, Romaniello answered, “I don’t believe so.” As to the photo identification of
Garcia, Romaniello claims that because Avila was not one hundred percent sure of the name of
the person who “shoved” her, she and Avila went to security and had them pull up Garcia’s

14 Asked again if she saw either Mercado Peralta or DeJesus in the hallway that morning,
Avila vacillated from her previous answer by stating that she did not remember seeing them.
(Tr. 980-981).
JD-22-08
5
10
15
20
25
30
35
40
45
50
14
Company photo ID on the computer, at which point Avila confirmed that Garcia was the one
who had pushed her. (Tr. 1144; 1167-1169). Unexplained by Romaniello is the inconsistency
between her claim that she asked Avila to come to her office to discuss this alleged Friday
“touching” incident involving Garcia and to photo ID her, and her admission that she did not
believe she knew of this alleged incident before Monday. Clearly, if, as Romaniello admitted,
she was unaware of the touching incident before Monday and first learned of it when she met
with Avila on Monday morning, her further claim that she summoned Avila to her office on
Monday morning to discuss this very subject, and to have her identify Garcia as the individual
who purportedly touched her, makes very little sense.
Avila, it should be noted, made no mention in her testimony of meeting with Romaniello
in her office on Monday, or of going to the security office with the latter to identify Garcia from a
computer photo. Rather, Avila’s testimony, which was somewhat vague in this regard, suggests
that it was Romaniello who came to her with a photo of Garcia and asked her to identify the
latter. This, and other above-described discrepancies and contradictions in their testimony
regarding this incident, renders their testimony unreliable and not worthy of belief. Also rejected
as not credible is Rivera’s assertion that Romaniello told him about the alleged “touching”
incident during an afternoon meeting on Friday, December 15, for Romaniello, as shown by her
testimony, did not learn of the incident until Monday, December 18, three days after Rivera
claims Romaniello told him of it. (Tr. 836).
On balance, I am not convinced that Garcia grabbed or touched Avila during the hallway
episode, as claimed by the latter. As stated, the only evidence that such an incident occurred
came from Avila herself, and lacked corroboration from the various General Counsel and
Respondent witnesses who testified to being present in the hallway and who, presumably,
would have been in a position to observe the incident had it occurred. Nor, as noted, was her
claim that she immediately reported the incident to Romaniello that same Friday corroborated
by Romaniello.15 Further, from a demeanor standpoint, Avila came across as scripted, and not

15 The Respondent’s assertion on brief, that Avila “made contemporaneous reports of the
Garcia confrontation to Abreu, Bednar, and Romaniello is not supported by the evidence.
(RB:32). Romaniello, as noted, recalled first hearing of this alleged incident between Garcia
and Avila on Monday, December 18, and, consequently, not contemporaneous with its alleged
occurrence on Friday. As to Abreu, the question put to her by Respondent’s counsel on this
matter, which she answered in the negative, was whether Abreu recalled having “any further
conversation” with Romaniello regarding Garcia “on that Friday or Monday.” (Tr. 1074-1075).
Abreu never testified to hearing anyone tell her about an alleged “touching” incident that
occurred in the hallway between Garcia and Avila. While she did testify to speaking to Avila in
the cafeteria regarding Garcia, there was no testimony from Abreu as to what that conversation
entailed. Consequently, the Respondent’s assertion that Avila told Abreu of this alleged incident
in the hallway is based on nothing more than rank speculation and conjecture. Nor is there
anything in Bednar’s testimony to indicate that Avila told him of this alleged touching incident by
Garcia soon after it purportedly occurred on Friday. The only evidence relating to what Bednar
knew of this incident is an email Bednar sent to Dennis Lee on Tuesday, December 19, four
days after the alleged incident, in which Bednar informs Lee of a conversation he had with Avila
the day before, December 18, wherein Avila told Bednar how “someone grabbed her from the
crowd and yelled at her about things.” (RX-10). Avila recalled mentioning something about this
incident to “the security guy” but did not recall when she may have done so. At best, Bednar’s
e-mail to Lee shows only that Bednar learned of an incident involving Avila and another
unidentified person on Monday, December 18, three days after the alleged incident is said to
have occurred, and not, as the Respondent asserts on brief, contemporaneously with its alleged
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
15
particularly reliable or worthy of belief. Avila’s repeated use of the phrase “out of control” to
describe the employees’ behavior during the work stoppage struck me as a well-rehearsed
phrase especially selected for use in the trial. Avila also was somewhat evasive and less than
forthright when questioned about her longstanding personal relationship with Rivera.16
Accordingly, her testimony in this regard is rejected as not credible. Rather, I credit Garcia and
find that this particular “handgrabbing,” “touching,” or “pushing” incident never occurred.17
Alleged discriminatees Mercado Peralta, Olivo, Garcia, and Guzman, as well as
employees Cruz and Villar, gave accounts of what they observed and heard during the hallway
episode. Mercado Peralta recalled that on entering the hallway, he saw Olivo speaking to
Keller, and heard Olivo tell the latter that he could not understand why, after employees had
worked so hard that year, the Company had not considered giving bonuses to employees.
Olivo, he contends, pointed out to Keller that work had apparently gone well, and that
employees were working and keeping up with production. He believes Rivera replied by stating
that they would have a response for employees but that they had to return to work. Mercado
Peralta claims he then asked for, and received, permission from Rivera to speak. He recalled
telling Keller and Rivera that employees wake up early at 5 a.m., and those employees who do
not have transportation have to pay $25 to get to the plant. He further pointed out to them that
employees had willingly worked very hard that year, and asked how was it possible that they
had not considered throughout the year whether or not to give out employee bonuses. Mercado
Peralta then proffered that it would be good if they could all come to an agreement and return to
work. Rivera translated for Keller what Mercado Peralta had said. According to Mercado
Peralta, Keller’s response was that nothing could be done and that they should return to work.
Mercado Peralta claims that after he spoke, Olivo again spoke up, saying that the Company had
mistreated them and treated them poorly, and expressed his belief that it was only fair that
employees receive bonuses that year. Mercado Peralta claims that he and the other employees
stood on opposite sides of the hallway from the managers, some 3-4 feet away from each other,
and that he at no time used rude, insulting language, or profanity when speaking to the
managers.
_________________________
occurrence. In sum, the Respondent’s assertion is based on nothing more than speculation,
conjecture, and, I am inclined to believe, a deliberate mischaracterization of the record
evidence.
16 Avila is Rivera’s fiancée. Rivera has known her for at least ten years, and testified that
they have had a close, personal relationship for four years and, at the time of the hearing, were
living together. Avila was somewhat evasive regarding her long-standing relationship with
Rivera. She testified to having left the Respondent’s employ of her own volition in 2004. A
letter received into evidence as GCX-6 shows that she, in fact, voluntarily left the Respondent’s
employ in October 2003, but also indicates that her departure may have had something to do
with a romantic relationship she was having with a supervisor at the time. Rivera’s claim that
his close personal relationship with Avila dated back four years strongly suggests that he was
the one with whom she was having a romantic relationship when she left the Respondent’s
employ in late 2003. (Tr. 835). Avila denied being in a relationship with Rivera when she left the
Respondent’s employ in 2003, contradicting Rivera’s more reliable assertion to the contrary.
Avila, I find, was being less than candid in owning up to her long-term relationship with Rivera.
17 While there were also some inconsistencies in Garcia’s testimony, such as her claim that
it was Avila, not Keller, who directed Bednar to remove Olivo from the hallway, her overall
testimony vis-à-vis Avila’s was more reliable and trustworthy. It is worth noting in this regard
that it is not uncommon, and fully within his or her judicial discretion, for a trier of fact to believe
some, but not all, of a witness’ testimony. American River Transportation Co., 347 NLRB No.
93, slip op. at fn. 12 (2006).
JD-22-08
5
10
15
20
25
30
35
40
45
50
16
Mercado Peralta admits it was somewhat noisy in the hallway, but attributed the noise to
the fact that all employees were talking at once. He denied, however, that employees or
managers engaged in yelling or shouting in the hallway. He recalled hearing Olivo speaking
loudly but only because the noise of other employees in the hallway speaking at the same time
prevented him from being heard. He contends that because he was unable to hear Olivo from
where he was standing in the back of the crowd, he moved to the front. Mercado Peralta claims
that he at one point asked Rivera if he could speak and Rivera gave him permission to do so.
Rivera denied that Maximo Peralta or Olivo ever asked for permission to speak. I credit
Mercado Peralta’s claim that he asked Rivera for and received permission to speak. Rivera, as
noted, testified he could not understand what the employees were saying in the hallway
purportedly because Mercado Peralta, Olivo, and others were yelling loudly, a claim which I
have rejected as simply not credible. Thus, if, indeed, Rivera was unable to understand what
Mercado Peralta and others were saying to him in the hallway, how would he have known if
Mercado Peralta had made such a request of him? This inconsistency was not explained by
Rivera, leading me to doubt his denial that Mercado Peralta asked him for permission to speak.
Overall, Mercado Peralta described the situation in the hallway as “orderly.” He denied
getting any closer to Keller than the 3-4 feet separating them, hearing any negative or
threatening remark being made, seeing Olivo or any other employee bang on lockers, and
denied that he or Olivo pointed their fingers at Keller as they conversed. He admits, however,
being part of the group of employees who stepped in front of Olivo to prevent his removal by
Bednar. (Tr. 154-160; 562). He recalled several employees asking Keller what crime Olivo had
committed that required his removal, and telling Keller that Olivo was only addressing work-
related matters at the plant. Mercado Peralta testified that he was not one of the employees
who expressed these views. Cruz, however, testified that Mercado Peralta was one of the
employees who spoke out on the workers’ behalf in the hallway that morning.
Olivo gave the following recollection of the hallway events. Employees, he contends,
stood some 8-9 feet from the managers at all times, except for the one instance when he was
about to be removed by Bednar. He testified that Mercado Peralta, Garcia, and other
employees spoke up and addressed the management group at various times. He recalled
Mercado Peralta asking Keller and the other managers why a memo regarding the bonus had
not been issued to employees as had been done in the past. Keller replied that they would
have an answer for them regarding the bonuses as soon as possible. Olivo recalled saying
aloud that he could not understand why the Company was “going to reduce” the bonus “from 20
hours when the Company was doing well and we were good workers.”18 Garcia, according to
Olivo, asked Keller why the Company had not spoken to employees beforehand about what
they were doing, and Keller simply answered that they would have an answer, presumably

18 It is unclear what Olivo meant by his remark about the bonus being reduced from 20
hours, as he was not asked to explain it. There was testimony by Keller, Rivera, and Collazo,
all of whom were not particularly credible witnesses, suggesting that employees were told in the
hallway that they would be receiving a 10-hour bonus. It is not, however, clear that this is what
Olivo might have been referring to. Notably, other than Keller, Rivera, and Collazo, no other
witness present in the hallway that morning testified to hearing Keller promise employees a 10-
hour bonus, although Garcia did testify to hearing Keller say that employees could possibly
receive a 10-hour bonus but would not have an answer for them until the following Monday. I
credit Garcia’s account and am convinced that Keller never assured employees they would
receive a 10-hour bonus, but instead told them a 10-hour bonus might be possible but he could
not give them an answer at that time but would have to wait until Monday.
JD-22-08
5
10
15
20
25
30
35
40
45
50
17
about the amount of the bonuses, as soon as possible.
Olivo also recalled raising a concern about why he only had two people working with him
when there had been five individuals in the past, explaining that he viewed such a reduction as
abusive. Olivo contends that right before he was ordered removed by Keller, he was
commenting to Keller about these abuses and about the failure to distribute bonuses. When
Keller gave the order, Olivo recalled hearing Keller order Bednar to take him out of the
hallway.19 Olivo recalled that as Bednar approached to escort him out, Mercado Peralta,
Garcia, DeJesus, and other employees, whose names he could not recall, gathered in front of
him to prevent his removal. Olivo denied seeing any employee banging on lockers, shaking
their fists over their heads, chanting, or shouting. Olivo admitted speaking in a loud voice, but
claimed he did so only because the noise level was high given the large number of employees
gathered there. He denied that he, Mercado Peralta, Garcia, or DeJesus shouted, yelled,
cursed, or used profanity towards Keller or any other management official. Nor, he contends,
did managers shout when they addressed the group of employees, and spoke only in a loud
voice in order to be heard, again because the noise level was fairly high. (Tr. 306-310).
Garcia recalled Keller telling employees on several occasions to return to work, that he
would have an answer for them by Monday on why they had not received Christmas bonuses.
Employees, however, remained unsatisfied and insisted that Keller given them an answer then
and there, claiming that Keller and the Company had had all year to come up with an
explanation. She claims that Rivera at one point told employees to return to work or he would
call security on everyone, and heard Olivo remark that employees should be given an answer
that day because “we can’t be working here nine or ten hours like animals without having
communication.” Soon thereafter, an attempt was made to remove Olivo, and she and others
surrounded Olivo to prevent his removal because, in the employees’ view, Olivo had done
nothing wrong to warrant his removal. Garcia did recall saying to Avila that they cannot take
Olivo but, as found above, she never touched or pushed Avila during this incident, as alleged by
Avila.20 The police arrived on the scene a few minutes later. (Tr. 51-58).
Guzman arrived in the hallway around 10:30 a.m. as he was about to take his break and,
consequently, offered little testimony on what occurred there. He recalled finding some 30-40
employees gathered along both sides of the hallway, and Keller and Rivera also present. He
recalled little else, however. Thus, he did not recall hearing what Mercado Peralta or Olivo said
that morning, nor did he hear any manager say there would be a bonus or that a meeting would
be held to discuss the bonus issue. He apparently remained in the hallway for a short while
before going outside the facility for a smoke break.
Cruz testified that when he entered the hallway, he heard Keller asking employees to
return to work, and telling them that the solution to the problem was to return to work and give
him some time to talk with his supervisors, that he was unable to make a decision at that point
regarding the bonuses. Employees, however, insisted on speaking with someone who could

19 Olivo initially testified that he did not understand what Keller said when ordering Olivo
removed. However, when presented with his affidavit on cross-examination, Olivo admitted
hearing “the supervisors” instruct security to take him “out of the hallway.”
20 Garcia’s assertion that it was Avila who instructed the security guard to remove Olivo is
inconsistent with Olivo’s and other witnesses’ assertion that it was Keller who asked to have
Olivo removed. I find Garcia was mistaken in her testimony, and that it was Keller who ordered
Olivo escorted out of the facility. Garcia, however, did admit that she did not know if Keller may
have instructed security to remove Olivo. (Tr. 118).
JD-22-08
5
10
15
20
25
30
35
40
45
50
18
make that decision. He recalled Mercado Peralta saying to Keller that “it was a shame that a
company with this projectory would have problems with something as small as a bonus with so
many years that this company has been here.” Olivo expressed his view to Keller regarding the
number of work hours given to employees, reflecting his apparent disappointment that work
hours were being reduced for persons like him who were heads of families. Cruz also recalled
hearing Garcia question why the Company could not have placed a notice on a wall stating
there would be no bonuses. Someone did respond to this query, although Cruz could not
identify the individual, by stating that a notice on the bonuses was being prepared or was on its
way. He also recalls DeJesus being present and speaking, but could not remember what
DeJesus said. Cruz described the exchanges as just basic conversation, without any show of
disrespect. At no time did he hear any abusive or offensive language, or curse words, used by
any of the four above-mentioned employees. Employees, he contends, seemed to identify and
agree with what Mercado Peralta was saying to Keller for they applauded as he spoke. Cruz
denied seeing any employee touch, push, or demonstrate any aggression towards any
supervisor, nor did he see employees waving fists in the air. He recalls that, at one point, a
MOPAC security guard sought to remove Olivo from the area, but was prevented from doing so
by employees who formed a circle around Olivo. The police, he contends, arrived a short while
later. (Tr. 529-534)
Villar testified that on entering the hallway, some 25-30 employees were already there,
along with Keller, Rivera, and supervisors Collazo and Giraldo Vargas. He recalled Mercado
Peralta being the principal speaker for the employees, but remembered hearing Garcia, Olivo,
Guzman, and DeJesus also speak out. Mercado Peralta, he contends, asked Keller to explain
why employees were not receiving bonuses that year. Keller purportedly replied that since it
was Friday and his own supervisor was not at the facility, employees should wait until the
following Monday for an answer. Mercado Peralta, however, insisted that they wanted an
answer that same day. The other employees, Villar recalled, responded to what Mercado
Peralta was saying by telling management to pay them the bonus, and cheered Mercado
Peralta on by saying “that’s the way to go.”
Villar contends that when Mercado Peralta finished speaking, Rivera tried to speak but
Guzman told Rivera he could not speak for the employees because he had not defended them
in the past. Rivera did not respond, according to Villar. He further testified, however, that, in
directing his remark at Rivera, Guzman did not scream at Rivera, and that neither Guzman nor
any of the other employees who spoke up that morning used profanity, curse words, or other
offensive language towards Rivera or anyone else. He also denied seeing any of these
individuals bang on the hallway lockers. Although Villar, as noted, claimed to have heard
Garcia, Olivo, and DeJesus speak out that morning, he could not recall what they may have
said, stating only that they kept referring to the bonus issue. He did, however, recall that
Garcia, soon after the police arrived, asked Avila if she had called the police, and then told Avila
she had no right to do so. He also recalled seeing Garcia and Avila standing relatively close to
each other but testified that, except for the above-described verbal exchange, nothing happened
between the two. In short, Villar’s testimony, contrary to that provided by management
witnesses, is that the events that occurred in the hallway on December 15, were neither rowdy
nor out of control. Rather, his recollection is that the only time employees became loud and
began yelling was when the police arrived and ordered them to shut up. Villar contends that
employees did not appreciate being told to shut up by the police, and commented aloud that
they had no reason to do so because they (the employees) were being treated like “animals.”
(Tr. 435; 439-440, 466)
Hernandez testified to being present in the hallway as employees tried to speak with
Keller and vice versa. He recalled it being noisy in the hallway because everyone was talking at
JD-22-08
5
10
15
20
25
30
35
40
45
50
19
the same time, but contends that Keller was allowed to speak. At times, when Keller was
speaking, he wouldn’t finish what he had to say because employees began speaking again.
According to Hernandez, while all employees apparently tried speaking at the same time, there
was no yelling or shouting by employees in the hallway. He contends that employees only
spoke as loud as Keller was speaking.
Bednar, as pointed out earlier, is the security guard asked by Keller to remove Olivo
from the hallway. Bednar claims he learned from employees that something was happening in
the hallway as he was making his rounds. On arriving at the hallway, he saw Keller and Rivera
trying to talk to some 30-40 employees who were gathered there. While he could not make out
what was being said, he concluded from Rivera’s translation of what Keller was saying that the
matter pertained to holiday pay. He recalled hearing Keller and Rivera telling employees that
there had been a miscommunication and that it would be rectified. Employees, on the other
hand, were yelling, raising papers in the air, and banging on lockers, although he admitted that
not all employees behaved in the same manner.21 Rather, he testified that there was a small
group of employees who were “probably” provoking the crowd to become more hostile or
aggressive towards management. Asked how this provocation was done, Bednar explained
that these few employees, two of whom he subsequently learned were Olivo and Mercado
Peralta, “would cut off” Keller as he spoke, which he described as being “disrespectful.” He
contends that when these individuals interrupted Keller, Olivo would begin to chant which, in
turn, caused the “whole crowd” of employees to begin “banging on lockers and just acting out of
the ordinary…acting a little out of control.” This, he further contends, was the extent of these
employees’ provocative conduct. They did not, however, block anyone’s way in the hallway.
He described Mercado Peralta as the most vocal employee in the group. On observing what
was going on, Bednar used his two-way radio to request further assistance from other security
and supervisory personnel that might be available. (Tr. 883).
Bednar recalled seeing Romaniello, Avila, and Abreu arrive in the hallway a short while
later, and claims they began urging employees to return to work and telling them the work
stoppage was not the way to handle the situation. Neither Romaniello, Avila, nor Abreu
corroborated Bednar’s claim in this regard. Thus, Romaniello admitted that she did not speak at
all in the hallway that morning. As to Avila, she made no mention in her testimony of taking part
in trying to persuade employees to return to work or telling them this was not the way to handle
the problem. Abreu, for her part, never claimed to have been in the hallway at all during this
particular episode, much less being part of any effort in the hallway to encourage employees to
return to work. In fact, her testimony, as discussed below, reflects only that she was present
during the second cafeteria episode. Bednar’s claim, therefore, of having heard or seen
Romaniello, Avila, or Abreu urging employees in the hallway to return to work is simply not
credible and is, I am convinced, a pure fabrication on Bednar’s part designed to aid the
Respondent’s case.
Regarding the Olivo incident, Bednar testified that Keller instructed him to “take care” of
Olivo after Keller “got tired of being interrupted” by him. As he moved forward to do so,
Mercado Peralta, he contends, also stepped forward in an apparent effort to block him, followed
by several other employees. Unlike Keller, who claimed this group of employees encircled and
surrounded Olivo and Bednar presumably isolating him from the other managers, Bednar
testified that employees simply moved forward and that he, as well as Keller and Rivera, were in

21 When asked, on cross-examination, about the screaming by employees in the hallway,
Bednar changed his account somewhat by claiming that employees were only “raising their
voices and just holding paper” in their hands. (Tr. 908).
JD-22-08
5
10
15
20
25
30
35
40
45
50
20
the middle of this “small, condensed circle.” Bednar claims that four employees, led by Mercado
Peralta, challenged and dared him with hand motions to come and try to remove Olivo, and
taunted and threatened him while telling him to calm down and that he did not belong there.
Neither Keller nor Rivera, however, nor, for that matter, any other witness who was present and
testified at the hearing, claimed to having seen Mercado Peralta or any other employee taunt,
threaten, challenge, or dare Bednar to remove Olivo, or to have heard employees tell Bednar to
calm down or that he did not belong there. According to Bednar, Keller and Rivera were only
one step behind him when this exchange with employees took place. Presumably, therefore,
Keller and Rivera could easily have seen and heard these exchanges taking place. Their failure
to corroborate Bednar’s account leads me to conclude that Bednar was again exaggerating and
embellishing his account to fit the Respondent’s defense. Bednar’s propensity for exaggeration
and embellishment became most apparent when he tried, rather feebly and unconvincingly, to
equate the behavior of employees during the work stoppage with his experiences during the
armed conflict in Bosnia. (Tr. 905). Accordingly, Bednar’s above description of what transpired
between him and the employees in the hallway that morning is rejected as not credible.22
Bednar claimed that in response to the employees’ actions, he put his hand up, told
employees to calm down, and backed away from the employees. His testimony in this regard
suggests that he backed off on his own without any instructions from Keller, implicitly
contradicting the latter’s claim that it was he who directed Bednar to back away. Nor was
Rivera’s claim at the hearing, that he pulled Bednar back from this employee group by grabbing
him by rear of his pants, corroborated by Bednar. Further, Bednar’s assertion that the crowd of
employees all banged on lockers is at odds with Keller’s and Rivera’s testimony of having only
seen DeJesus banging on a locker. After backing away from the employees, Bednar testified
he left the area and instructed security guard John Geist to call 911 and report a “possible riot of
50 or more employees” at the facility. As Geist did not testify, it is unclear what message he
may have conveyed to the 911 operator. Overall, I found Bednar’s testimony not very
convincing, peppered as it was with inconsistencies and obvious embellishments and/or
exaggerations. Accordingly, his testimony as to what transpired in the hallway on the morning
of December 15, is rejected as not credible. Further, the inconsistencies between Keller’s and
Bednar’s testimony regarding the Olivo incident also casts doubt on Keller’s version of events
and renders it equally unreliable.
Two police officers, Glenn Kranich and Al Jazul, of the Franconia, PA Police
Department, which has jurisdiction over the MOPAC facility, were the first responders to the 911
call. Kranich testified he received the call around 10:14 a.m. from an unidentified MOPAC
security guard who reported that a large fight was taking place at the plant among some 50-70
employees. On their way to the MOPAC facility, Kranich radioed for assistance from other
police jurisdictions. On arriving at the plant, Kranich was met by a MOPAC security guard who

22 A report, identified by Bednar as prepared by him on December 15, memorializing the
events of that day, was received into evidence as RX-9. Nowhere in RX-9 is mention made by
its purported author, Bednar, of Mercado Peralta or any other employee “taunting” or
“threatening” him during this episode. Further, while the report states that Rivera was the one
who informed Bednar of the situation occurring in the hallway, at the hearing, Bednar testified
that it was employees, and inferentially not Rivera, a supervisor, who reported to him what was
going on, but could not recall who the employees were. Bednar’s report, it should be noted,
also avers that Keller asked him to remove Olivo only after the latter said something to Keller in
Spanish. This, however, appears to be at odds with Keller’s assertion that it was his
“frustration” over Olivo’s alleged refusal to let him communicate his message to employees for
some 10-15 minutes that led him to ask for Olivo’s removal.
JD-22-08
5
10
15
20
25
30
35
40
45
50
21
reported to him that “a security officer was being assaulted in the hallway by numerous
employees.” As he made his way to the hallway area, Kranich kept asking persons along the
way “where the large fight was.” He received no response and simply followed the sound of
shouting and screaming” he was hearing. He eventually located the source of the commotion in
the hallway, and found some 100-150 people yelling, screaming, and jumping around. He did
observe some employees with their hands in the air, but denied they did so with clenched fists,
stating instead that they did so with their palms opened. He began walking through the crowd in
the hallway, looking for the security officer who was presumably being assaulted, and
attempting to find out what was going on from employees he encountered. Kranich eventually
learned that the matter involved a dispute between the employees and MOPAC over the bonus.
As he and Jazul walked through the hallway and employees noticed their presence, things
began to quiet down. According to Kranich, employees were respectful towards him as he
made his way down the hallway towards where Keller and Rivera were. At one point, certain
individuals standing near the managers began shouting in Spanish, prompting Jazul to yell “shut
up,” at which point everyone began yelling and shouting.
Kranich testified that while he felt he was making some headway with employees, his
partner’s actions in yelling to employees to “shut up” only served to anger the employees and
gave them a reason to start yelling and screaming again. It was at this point that Kranich claims
he felt that the crowd might get violent. Soon thereafter, however, other police officers arrived
on the scene, allaying Kranich’s fears. To further calm things down, Kranich and his partner
began motioning the employees to go into the cafeteria, which they eventually did. (Tr. 359-
364; 382; 384-385).
(c) The second cafeteria episode
Once inside the cafeteria, the employees, numbering between 100 and 150, dispersed
into smaller groups. Kranich testified that employees continued to yell and scream as they
entered the cafeteria. Inside the cafeteria, Kranich recalled seeing the “floor manager” standing
on a table or a chair alongside a female interpreter telling employees that “they needed to return
to work or they were going to be excused for the day, and that the problems they needed to talk
about would have to wait and would be discussed with management.” He did not recall seeing
any of the employees in the group he was next to standing on tables. (Tr. 367-368)
Keller testified that after discussing with two police officers how to proceed and asking
them to keep a low profile as he tried to resolve the situation, he followed the employees into
the cafeteria. On entering the cafeteria, he observed two separate grouping of employees. The
larger group, he contends, was being addressed by Mercado Peralta who stood on a bench
while doing so. Keller also claimed to have seen Berios standing on a table as Abreu
addressed the group Mercado Peralta had been speaking to. However, he subsequently
modified his testimony to reflect that, in fact, it was Mercado Peralta, not Berios, he saw
standing on the table, and that Berios was actually standing on the floor. Keller recalled
mentioning to Collazo that Mercado Peralta should not be on the table, but was not sure if he
instructed Collazo to tell Mercado Peralta to get down, or if he did so himself.
Collazo also claimed to have seen Mercado Peralta get up on a table and speak out and
agitate other employees by telling them that “We have to be united, we’re not animals, we
deserve the bonus.” According to Collazo, Mercado Peralta had made the same remarks to
employees and management during the hallway episode, although he contends that Mercado
Peralta had been more aggressive and spoke in a higher voice in the hallway when making his
remarks. Collazo contends that he was the first to order Mercado Peralta off the table, and that
Keller, Rivera, and Acosta subsequently made the same request of Mercado Peralta, but that
JD-22-08
5
10
15
20
25
30
35
40
45
50
22
the latter refused to do so. Mercado Peralta denied ever getting on a cafeteria table.
(Tr. 676-677; 686)
There are sound reasons for doubting Collazo’s claim that Rivera, Acosta, and Keller
instructed Mercado Peralta to get off a cafeteria table. Thus, both Rivera and Acosta had no
recollection of seeing Mercado Peralta standing on a cafeteria table, rendering implausible
Collazo’s assertion that Rivera and/or Acosta issued such a directive to Mercado Peralta. As to
Keller, the latter, as noted, was uncertain whether he or Collazo ordered Mercado Peralta off the
table, undermining Collazo’s claim that Keller also instructed Mercado Peralta to step down.
Nor do I find credible Collazo’s claim that he was the first to instruct Mercado Peralta off the
table, and that, after doing so, he was instructed by Keller to return to his work area. According
to Collazo, after being instructed by his superior, Keller, to return to the production area, he,
Collazo, intentionally ignored those instructions and hung around a bit longer during which time
he purportedly observed Rivera and Acosta order Mercado Peralta off the table. Not only is his
testimony not corroborated by either Rivera or Acosta, but I doubt seriously that Collazo would
have ignored Keller’s directive to return to the production floor immediately. From a demeanor
standpoint, Keller did not strike me as someone who would have readily tolerated such a refusal
by a subordinate. In sum, I am convinced that this aspect of Collazo’s testimony was a pure
fabrication designed to help bolster the Respondent’s case. I find instead that Mercado Peralta
was never on a cafeteria table during the second cafeteria episode.
Keller recalled getting up on a bench and addressing the employees in English while
Berios interpreted, asking them to return to work or, if they refused to do so, to head to the
double doors on the far side of the cafeteria where police were stationed and they would be
escorted off the premises. He contends that as he did so, Mercado Peralta shouted to
employees, “Don’t leave, don’t listen to him, don’t go back to work, we’re staying here.” Keller
claims that after repeating his message to employees a third time to either return to work or
head towards the exit, employees began to respond and started heading towards the production
floor. Keller did not witness either Mercado Peralta or DeJesus being escorted out of the
cafeteria by the police. He testified that he learned of their removal sometime after things in the
cafeteria had calmed down and employees had returned to work, although he did not say who
informed him of it or whether he was told of the circumstances which prompted their removal.
There is, in this regard no evidence, including testimony by the two police officers involved in
the removals, Kranich and Ciarlello, to indicate that Keller was told why Mercado Peralta and
DeJesus were escorted out of the cafeteria, although, as noted below, there is strong evidence
to suggest that Mercado Peralta was removed on instructions from Keller. (See, e.g., RX-20).
Rivera entered the cafeteria with Keller, and claims employees were still yelling and
screaming as they headed for the cafeteria and, once inside, dispersed into smaller groups. He
and Keller went over to the larger group, which included Mercado Peralta, and reiterated the
earlier message conveyed to employees in the hallway to either “return back to their jobs or
leave the plant.” He contends Mercado Peralta continued to yell and scream at Keller as they
did so, a claim not made by Keller in his recitation of events. Acosta showed up a few minutes
later at which time Rivera went over to where Olivo and another employee group were gathered
and began repeating the same message to them about returning to work or leaving the plant.
Olivo and this group, he contends, then began heading back to work, and were joined by
DeJesus. Rivera contends that as he, Olivo, DeJesus, and this employee group headed
towards the hallway to return to work, Olivo apologized to him for the entire situation, explaining
that employees had an obligation to speak up.
Rather than returning to the production area, DeJesus, according to Rivera, slipped back
into the cafeteria. DeJesus was eventually removed from the cafeteria by the police, but Rivera,
JD-22-08
5
10
15
20
25
30
35
40
45
50
23
like Keller, did not witness DeJesus’ removal, or the events or conduct by DeJesus that led to it.
Romaniello, on the other hand, claimed to have seen an employee, presumably DeJesus, being
surrounded by five officers, and DeJesus resisting and fighting off attempts by the police to grab
and hold him by his arms. At one point, DeJesus, she contends, “went down on the ground,”
after which he was stood up, handcuffed, and escorted out of the facility. Romaniello, it should
be noted, did not claim to have seen DeJesus push or shove a police officer. Nor is there
anything in Romaniello’s testimony to suggest she reported this incident involving DeJesus to
Keller while they were in cafeteria, or at some point thereafter. Romaniello did recall speaking
with Keller shortly after the incident, but testified only that this conversation involved Keller
instructing her on where to position herself as the work stoppage waned and employees began
returning to work. Romaniello claims that soon after this conversation with Keller, she heard
screaming and saw employees returning to the cafeteria, where they continued yelling,
screaming, speaking loudly, and forming groups. She gave no indication in her testimony of
knowing what may have prompted employees to return to the cafeteria.
Rivera contends that shortly after escorting Mercado Peralta out, he came back to the
cafeteria and was standing by the doors leading to the hallway when Guzman came up behind
him and brushed up against his shoulder as he went by. Rivera contends that as Guzman did
so, the latter put his finger some six inches in front of his (Rivera’s) face, and yelled aloud to the
group, “this is our true enemy.” Despite claiming that these were the exact words directed at
him by Guzman, Rivera nevertheless admitted that he asked Guzman what he had just said,
suggesting implicitly that he may not have clearly heard or understood Guzman’s remark.
Guzman, he contends, did not respond and continued on through the crowd towards the
slaughter department. According to Rivera, Guzman made his remark only once and did not
repeat it. (Tr. 828-830)
Regarding this Rivera-Guzman exchange, Boyrie claims she witnessed Guzman “get
close enough to touch [Rivera’s] nose, point a finger in Rivera’s face, and accuse him of being
“one of the first enemies that we had here.” Navarro also testified that during the hallway
portion of the work stoppage, she was “speaking in front of” Rivera when [Guzman] passed by,
turned around, and told Rivera he was “one of the worst enemies of the employees.” (Tr. 991;
1042)
Following this exchange, Rivera claims he then turned back to the cafeteria and
observed Mercado Peralta being “disruptive.” He recalled seeing a police officer trying to grab
Mercado Peralta on the shoulder to escort him out because he was refusing to either go through
the hallway back to work or to leave the premises through the double doors on the other side of
the cafeteria. Rivera contends he then walked up to Mercado Peralta, put his arm around him,
and urged him to follow the officer’s instructions as he did not want to see anybody get hurt. He
and the police officer then escorted Mercado Peralta to the door leading out of the facility.
Romaniello also claims to have witnessed the Mercado Peralta incident in the cafeteria.
She testified that once in the cafeteria, employees who chose to return to work were asked to
return via a hallway that led to the slaughter area, and not through some double doors leading
to the Fabrication department. Romaniello contends that Mercado Peralta refused to follow
these directions and sought to enter the work area through the wrong doors. She testified to
seeing Rivera walk up to Mercado Peralta and place his arm around him in an effort to speak
with him. While presumably only five feet away, Romaniello could not hear what Rivera was
saying to Mercado Peralta. She claimed that Mercado Peralta resisted Rivera and would not let
Rivera speak to him, and that, at one point, he broke away from Rivera and tried to “bust
through the crowd to get to [the] double doors” he and other employees had been instructed not
to go through. Romaniello contends that Mercado Peralta was then pursued by a police officer
JD-22-08
5
10
15
20
25
30
35
40
45
50
24
and another supervisor and returned to the cafeteria. Presumably, it was at this point that
Mercado Peralta was escorted off the premises. She made no mention of seeing Rivera take
part in escorting Mercado Peralta out of the facility. (Tr. 1120; 1196-1197). By the same token,
Rivera made no mention of seeing Mercado Peralta “bust” through a crowd of employees to get
through the double doors.
Bednar, who also claimed to have witnessed and taken part in the incident involving
Mercado Peralta, gave a much different account than that provided by Romaniello. Thus, he
testified that when employees in the cafeteria began heading towards the hallway to return to
work, he noticed that Mercado Peralta was among the employees returning to work and he
immediately notified his “boss” and the police officer that Mercado Peralta should be restrained
and taken outside. He did so, he contends, because Mercado Peralta was “one of the
instigators” who had stopped him from doing his job, and had challenged and “taunted” him in
front of other employees in the hallway. He explained that he viewed Mercado Peralta as an
“instigator” because he was “one of the individuals that was responsible for getting [the work
stoppage] escalated to the point it was escalated to.” However, when asked on cross-
examination if he had Mercado Peralta removed from the facility because he viewed the latter
as an “instigator,” Bednar changed his story, stating that Mercado Peralta was not removed for
being an “instigator” but rather “because he personally threatened me and I felt threatened by
his actions.” (Tr. 895; 910) In RX-9, Bednar’s December 18, report on the work stoppage,
Bednar wrote that he prevented Mercado Peralta from returning to work and had him escorted
out of the building by two police officers because Mercado Peralta had been “the main cause of
the situation with getting the employees fired up.” Bednar made no mention in his testimony or
in his report of Mercado Peralta trying to return to work through some other cafeteria exit, or
“busting” through a crowd of employees. Nor does his report state that he had Mercado Peralta
removed because the latter threatened him and because he, Bednar, had felt threatened by
Mercado Peralta’s actions.
Mercado Peralta’s account is that, once inside the cafeteria, he saw Keller on a
cafeteria table telling employees on several occasions to return to work, that nothing could be
done at that point, and he responding to Keller that employees would return to work once they
obtained a satisfactory response on the bonus question. Keller replied that those who are
unable to return to work should go home. Mercado Peralta also recalled seeing Abreu get on a
table and scream out loud to employees to return to work or leave the plant.
Mercado Peralta testified that as he turned and headed towards the hallway to return to
work, two Company security guards grabbed him by the arms in the hallway and told him they
had been ordered to remove him from the facility. They then escorted him back to cafeteria
where two police officers took him by the arm to escort him out of the facility. He recalled one of
the officers telling him not to be afraid, that he hadn’t done anything wrong, but that
management did not want him in the plant. At that point, Rivera approached and Mercado
Peralta asked him why he was being removed. Rivera answered that he should go peacefully
as he did not want the police to drag him out or use violence against him, and promised to call
Mercado Peralta. Mercado Peralta did not recall Rivera putting his arm around him, and denied
pushing Rivera away from him. He did recall that Rivera helped him and that, together with the
police, escorted him out of the facility. Olivo recalled hearing Rivera assuring Mercado Peralta
that he would call him. (Tr. 166-167; 172-173; 231; 342).
Romaniello’s description of Mercado Peralta’s conduct in the cafeteria differs from
Officer Kranich’s account, which is more in line with Mercado Peralta’s version of events. Thus,
contrary to Rivera’s description of Mercado Peralta’s conduct in the cafeteria as “disruptive,”
Kranich testified that he observed Mercado Peralta in the cafeteria simply standing around not
JD-22-08
5
10
15
20
25
30
35
40
45
50
25
doing anything, and that at no time did Mercado Peralta display any aggressive behavior toward
the police.
Regarding Mercado Peralta’s removal from the premises, Kranich testified that
someone, identifying himself as Head of Security Denis Lee, approached him in the cafeteria
and asked for his help in the matter. Kranich told Lee that there was not much he could do
other than provide security as he did not see that any laws were being violated Lee
nevertheless asked Kranich to arrest Mercado Peralta because the latter had been an
“instigator” in the incident, had “started the entire uprising of employees originally, and was one
of the advocates of getting everybody together.” Kranich replied that he had not seen any
violations of law taking place, and that Mercado Peralta had not shown any aggression towards
the police, and that this entire matter was an employer/employee dispute. Lee nevertheless
insisted that he wanted Mercado Peralta removed from the premises. Kranich then went over to
Mercado Peralta and told him about Lee’s request to have him removed. Kranich, I am
convinced, was one of the two police officers who Mercado Peralta described as having
escorted him out of the facility. Mercado Peralta, Kranich claims, simply said he was fine with
that, and walked out of the facility with Kranich where they chatted for a few minutes. Kranich
told Mercado Peralta that he understood from what Lee had said to him that Mercado Peralta
was being terminated.
Kranich testified that at no time did Mercado Peralta push or become physically
aggressive with him or any other police officer, nor did he become belligerent or defiant when
asked to leave. His testimony in this regard thus contradicts Rivera’s claim that Mercado
Peralta had been “disruptive” in the cafeteria, as well as Romaniello’s claim of seeing Mercado
Peralta “resisting” Rivera and “busting” through a crowd of employees trying to enter the hallway
through an exit he and other employees were told not to go through.
Romaniello’s account of the incident involving Mercado Peralta and his removal from the
cafeteria was not credible. Thus, neither Rivera, Bednar, nor Kranich provided any support for
her version of events. None, for example, testified to seeing Mercado Peralta trying to get away
from Rivera when the latter placed his arm around Mercado Peralta, or to have seen the latter
attempting to “bust” through the wrong doors in an effort to return to work. Nor did they describe
seeing a police officer and a supervisor chase after Mercado Peralta and return him to the
cafeteria. Mercado Peralta’s own testimony regarding this incident is, for the most part,
consistent with the events as described by Rivera and Kranich. As to Romaniello’s claim that
Mercado Peralta refused to listen to Rivera or to let him speak during this incident, Rivera made
no such assertion in his testimony. Nor do I believe Rivera’s claim that Mercado Peralta was
“disruptive” during this cafeteria episode, for Kranich’s more credible testimony reflects that
when removed from the facility, Mercado Peralta was simply standing around not doing anything
in particular.
While there are some discrepancies on the question of who ordered Mercado Peralta
removed from the facility,23 the record makes patently clear that Mercado Peralta was removed

23 Bednar, as noted, claimed he unilaterally made the decision to have Mercado Peralta
removed from the facility. (Tr. 896). However, a report, purportedly prepared by Lee and
attached to the termination report prepared by Romaniello on Mercado Peralta, suggests that
the decision not to allow Mercado Peralta to return to work and to be removed from the facility
was made by Keller because he viewed Mercado Peralta as “one of the original agitators.” (RX-
20). Kranich’s credible account on how Lee approached him in the cafeteria and asked that he
arrest Mercado Peralta because he was one of the “agitators” responsible for getting all the
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
26
not, as claimed by Romaniello, for trying to enter the production area through the wrong doors,
or for any other particular conduct he may have engaged in during this second cafeteria
episode, but rather because he was considered to be one of the “original agitators” of the work
stoppage. Kranich’s undisputed and credible testimony as to what Lee said to him supports this
finding, as does the attachment to RX-21, as well as RX-9, an incident report prepared by
Bednar regarding the work stoppage wherein Lee avers that Mercado Peralta was removed
because he “was the main cause of the situation with getting the employees all fired up.”
Guzman denied seeing any employee, including Mercado Peralta, standing on a
cafeteria table, but did see Keller up on either a chair or table instructing employees on several
occasions to either return to work or go home. He also heard Abreu being pretty agitated and
upset as she tried to convince employees to return to work. As to the incident described by
Rivera involving him, Guzman gave a different account of what transpired. Thus, he denied
addressing himself to Rivera during this incident. Rather, he testified that he was, at the time,
addressing himself to Olivo who was nearby, and that he simply told Olivo that he did not
understand why the police had to be called, and that management was treating its employees
as enemies. He recalled that Rivera, who was standing some 6 feet away, asked him what he
had just said, and Guzman repeated to Rivera what he had just told Olivo about employees
being treated like enemies. Guzman denied pointing his finger in Rivera’s face or touching or
brushing up against Rivera’s shoulder. Guzman recalled remarking out loud to employees at
one point that they could possibly lose their rights if they left the facility. Olivo denied seeing
Guzman point his finger in Rivera’s face or raise his hand above his shoulder. He did recall
hearing Guzman question why Rivera “would take care of us if he’s like an enemy to us,” and
heard Guzman make his remark about employees losing their rights if they left the facility.
I credit Guzman and find that he never pointed a finger in Rivera’s face, or yelled aloud
to employees, “this is our true enemy,” as claimed by Rivera. Both Guzman and Olivo, as
noted, denied that any finger pointing took place. As to the remark allegedly made by Guzman,
a composite of the versions provided by Guzman and Olivo convinces me that Guzman
essentially told Rivera what he had just said to Olivo about how the Respondent was treating its
employees like enemies, and that he at no time pointed his finger or yell in Rivera’s face that
Rivera was the “true enemy.” Indeed, Rivera’s own testimony, that he asked Guzman to repeat
what he had just said, a fact confirmed by Guzman, strongly suggests that Rivera may not have
clearly heard or understood Guzman’s comment. As Guzman, according to Rivera’s own
testimony, did not repeat himself but rather kept moving towards the production floor, Rivera, I
am convinced, never actually learned the true nature of Guzman’s remark. Had Rivera heard or
understood what Guzman had said, there would have been no reason for Rivera to ask Guzman
to repeat himself. Moreover, there would have been no need for Guzman to repeat himself if,
as claimed by Rivera, Guzman was only inches away from him when he made his remark,
hence close enough for Rivera to have heard what Guzman had said. A plausible explanation
for Rivera’s request for Guzman to repeat his comment, one that is fully consistent with
_________________________
employees together, supports a finding that it was Lee, with instructions from Keller, and not
Bednar, who made the decision to have Mercado Peralta removed from the facility. In this
regard, I reject Villar’s description of how Mercado Peralta came to be removed from the
cafeteria. Villar testified that it was Abreu who directed a police officer to remove Mercado
Peralta because the latter was attempting to return to work through some other exit. I am
convinced Villar was mistaken regarding the incident involving Mercado Peralta’s removal, as
the weight of the credible evidence makes clear that it was Lee, with instructions from Keller,
who gave the order. I do, however, credit Villar’s testimony that Mercado Peralta never pushed
or touched a police officer in the cafeteria.
JD-22-08
5
10
15
20
25
30
35
40
45
50
27
Guzman’s version of events, is that Rivera, as testified to by Guzman, was several feet away
from Guzman, and not inches away as claimed by Rivera, when Guzman made his remark.
Given the noise level in the cafeteria at the time, it is understandable that Rivera may not have
clearly heard or understood Guzman’s remark, prompting him to ask Guzman to repeat himself.
In sum, as with other aspects of his testimony, Rivera’s claim that Guzman pointed a
finger in his face and accused him of being “our true enemy” was not credible, notwithstanding
what appears to be corroborating testimony from Boyrie and Navarro. Boyrie, like Rivera, was
prone to exaggeration if not outright fabrication regarding the events of the work stoppage. She
claimed, for example to have seen all of the alleged discriminatees standing on cafeteria tables,
a claim credibly denied by the alleged discriminatees themselves, and disputed by Berios,
Kranich, and Rivera. Boyrie’s propensity to fabricate was also made apparent when she
claimed to have heard Mercado Peralta, Guzman, and Olivo cursing and using profanity in the
hallway, a claim credibly denied by the individuals in question, disputed by Berios, and not
substantiated by any of the management officials who were present in the hallway at the time. I
am convinced that Boyrie, who readily admits being related to supervisor Collazo, willingly and
deliberately lied to curry favor with the Respondent, and that her willingness to fabricate
extended to her version of the incident between Rivera and Guzman.
Navarro, as previously pointed out, also tended to exaggerate, if not outright fabricate,
what she observed during the work stoppage, as when, for example, she claimed to have seen
alleged discriminatees DeJesus and Mercado Peralta in the cafeteria when the work stoppage
began. As noted, and as the Respondent readily admits on brief, neither DeJesus nor Mercado
Peralta were in the cafeteria when the work stoppage began. Indeed, Navarro, as noted,
claimed to have seen both “Puerto Plata” and Mercado Peralta in the cafeteria, not knowing that
the former is simply Mercado Peralta’s nickname and that Puerto Plata and Mercado Peralta are
the same individual. Her willingness to adhere to this story despite the subtle opportunity
afforded her by the General Counsel on cross-examination to clarify her answer leads me to
suspect that Navarro simply fabricated this account in an effort to show her support for the
Respondent in this matter. Further casting doubt on the reliability of her testimony is her
admission that a few days before the hearing began, Rivera was present with her as she was
being prepared for trial by the Respondent’s counsel. No explanation was proffered as to why
Rivera’s presence was needed or required during this interview, raising a concern in my mind
that Navarro’s testimony may have been compromised prior to the hearing. In sum, I place no
credence on Navarro’s claim as to what she heard or saw happen between Olivo and Rivera on
December 15.
After escorting Mercado Peralta off the premises, Kranich returned to the cafeteria and
observed employees returning to work. He also saw another police officer, Detective John
Ciarlello of the Hatfield, PA police department, speaking with an employee, identified to him by
Ciarlello as DeJesus. Kranich recalled seeing DeJesus at one point shouting something in
Spanish, and observed that, in response to the latter’s shouting, employees who were beginning
to exit the cafeteria to return to work stopped and began re-entering the cafeteria. Ciarlello
instructed DeJesus to stop shouting and to allow employees to return to work. DeJesus,
however, continued to shout and began walking away from Ciarlello, at which point Kranich and
other officers assisted Ciarlello in taking DeJesus into custody. He did not see DeJesus
become aggressive towards Ciarlello. However, he contends that DeJesus did offer some
resistance to being handcuffed and that he threatened to “tazer” DeJesus if he continued
resisting. After being handcuffed, DeJesus calmed down and was escorted out of the facility by
Kranich and Ciarlello. Once outside, Kranich told DeJesus he was being charged with
“disorderly conduct. ” Kranich claims that DeJesus understood what he was being told,
explaining that the latter spoke English, although not a hundred percent. His claim in this
JD-22-08
5
10
15
20
25
30
35
40
45
50
28
regard, however, conflicts with Abreu’s assertion that she was asked by a police officer to
interpret for an employee who had just been arrested. Abreu claims she did go outside to a
van, presumably a police vehicle, and interpreted for the employee. As DeJesus was the only
employee arrested during the work stoppage, it is reasonable to assume that it was the latter for
whom Abreu interpreted.
Ciarlello testified as follows regarding the DeJesus incident. On entering the cafeteria,
Ciarlello essentially just stood around observing what was going on. He recalled seeing a “guy
in a leather jacket and jeans” who seemed to be in charge trying to calm the employees and
urging them to return to work. According to Ciarlello, at one point, when employees in the
cafeteria appeared to have calmed down, DeJesus entered from the hallway and began
screaming at employees as if trying to stir them up again. DeJesus, he recalled, spoke to
employees in Spanish, which Ciarlello readily admitted he could neither speak nor understand.
Soon thereafter, an individual wearing a white coat, whom he had seen earlier in the hallway,
came up to Ciarlello, pointed DeJesus out to him, and remarked that DeJesus was the main
problem, and the one causing all the problems. Ciarlello then went up to DeJesus and told him
to calm down, that he was making everybody upset, and that he should either go outside and
cool off, or go back to your work area. Ciarlello could not say for sure if DeJesus understood
him, and simply “assumed” that he had because when Ciarlello motioned with his hands for
DeJesus to go outside or calm down, the latter turned as if heading back to his work area,
suggesting that he might have understood Ciarlello’s instructions. Ciarlello conceded, however,
that while DeJesus appeared to be returning to work, he simply did not know if that was what
DeJesus had in mind. DeJesus, according to Ciarlello, was calm at that point.
Soon thereafter, however, Ciarlello claims he observed DeJesus heading in a different
direction away from the work area, at which point he approached DeJesus and told him he
needed to go outside. DeJesus apparently did not respond to Ciarlello’s directive and continued
towards the cafeteria. Unlike Kranich, Ciarlello does not contend that DeJesus continued
shouting or screaming after being told not to do so, or while walking away. Olivo testified that
he saw DeJesus heading back towards the cafeteria, and heard him comment that he was
going back in to get some water. Olivo purportedly cautioned DeJesus not to go back in
because the police were there, and DeJesus remarked, “No, it’s ok, I’m just going to get water.”
(Tr. 322). Olivo’s testimony in this regard is undisputed and accepted as true.
Admitting that he did not know what DeJesus was up to, Ciarlello nevertheless grabbed
DeJesus by the arm as he re-entered the cafeteria, explaining that he did so because he also
had “an obligation to protect the people” in the cafeteria. (Tr. 406-407; 416). When DeJesus
offered some resistance, Ciarlello, with assistance from Kranich, forced DeJesus onto a table
and handcuffed him. On realizing he was about to be handcuffed, DeJesus apparently calmed
down. Ciarlello described DeJesus as being “a little bit’ violent, but explained that DeJesus
“wasn’t attempting to injure me. He was just angry, he was irate.” He stated that he decided to
handcuff DeJesus because he did not want to get into a “cat and mouse” game with DeJesus.
Asked if DeJesus was trying to get away before being handcuffed, Ciarlello testified that given
DeJesus’ large physique, the latter could have easily pushed him off and gotten away,
suggesting implicitly that he may not have viewed DeJesus’ minor resistance as an attempt by
the latter to get away.24

24 Kranich’s and Ciarlello’s description of the DeJesus incident in the cafeteria contrasts
sharply with the description contained in a report which Romaniello claims was purportedly
prepared by Lee, copies of which were received into evidence as attachments to certain
Company exhibits, including RX-21, a Termination Payroll Change form prepared in connection
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
29
DeJesus was thereafter taken to the local police station, and issued a “Non-Traffic
Citation” charging him with “Engaging in fighting or threatening or in violent or tumultuous
behavior,” and “attempting to run and push police away during an incident in MOPAC.” The
citation was issued by Kranich. Ciarlello, however, testified that he was asked, presumably by
Kranich, if he wanted DeJesus to be charged with an “assault on a police” for pushing away
from Ciarlello, which would have called for fingerprinting and other booking procedures, but he
declined to do so finding it to be unnecessary. He nevertheless testified that the conduct
described in the citation accurately described what had happened in the cafeteria that day.
(See, RX-1).25 Ciarlello was unsure of the outcome of the DeJesus legal proceedings, and
simply assumed that DeJesus must have pled guilty to the charge because he, as the alleged
victim, was never subpoenaed to appear at any hearing relating to the matter.26
_________________________
with DeJesus’ termination. The Lee report appended to RX-21 thus describes DeJesus as
“another male associate who had been an agitator,” and states that DeJesus had “tried to run
through the east/west hall police screen.” It goes on to state that “The associate literally
bounced off of the line of police officers; at which he gathered himself and charged back at the
line violently striking into one of the police officers, but was again rebuffed, this time with the
police officer in pursuit.” The Lee report further claims that “the subject associate ran parallel to
the police line heading south. He was subdued by the police officers, taken into custody, and
charged with a summary offense akin to disorderly conduct.” It goes on to report that “It was
necessary for the police to place a Tazer/stun gun against the subject’s neck in order that the
subject cease resisting.” A comparison of Kranich’s and Ciarlello’s testimony regarding
DeJesus’ conduct in the cafeteria with that set forth in the Lee report makes clear that the latter
greatly exaggerated and embellished what actually occurred. Thus, neither Kranich nor
Ciarlello testified to seeing DeJesus trying to break through a “police screen,” “bouncing off” a
line of police officers and violently striking one of them, being chased or pursued by police
officers, or placing a Tazer on DeJesus’ neck to subdue him. Rather, both gave a more benign
description of their encounter with DeJesus, describing the latter as simply offering some minor
resistance but eventually allowing himself to be handcuffed and led out of the facility. Lee, as
noted, was not called to testify or to offer some explanation for his entries in the report, or to
refute other statements attributed to him.
25 Kranich and Ciarlello explained that DeJesus was not charged with a more serious
offense requiring booking or fingerprinting because DeJesus’ conduct in the cafeteria did not
rise to the level of an assault or anything of that nature. However, their testimonial description
of the events which prompted Ciarlello to arrest and remove DeJesus suggests that the latter’s
conduct was more benign than that described in the offenses portion of the citation. In fact,
from Ciarlello’s testimony, it would appear that it was DeJesus’ failure to leave the cafeteria right
away and to continue in another direction, and not any specific disruptive behavior on his part,
which caused Ciarlello to begin taking steps to prevent DeJesus from remaining in the cafeteria
and to escort him outside. Thus, at the time he was detained, DeJesus, again according to
Ciarlello’s testimony, was not engaged in any “fighting” or “threatening” anyone, engaging in any
“violent” or “tumultuous” behavior, or “running” away. Nor did DeJesus “push” Ciarlello, for the
latter described DeJesus as only as offering some resistance, and never claimed to have been
pushed. In fact, when asked by Kranich if DeJesus should be charged with the more serious
offense of assault for “pushing” him, Ciarlello, as noted, declined to do so, finding it to be
unnecessary. I am inclined to believe that DeJesus was not charged with “pushing” and,
therefore, assaulting Ciarlello because it never occurred.
26 I give no weight to Ciarlello’s assertion that DeJesus must have pled guilty to the charge,
since, by his own admission, he simply assumed this to be case. His assumption, however, is
based on nothing more than speculation and conjecture. The fact that he was never
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
30
On returning to the cafeteria after helping to escort DeJesus out, Kranich observed that,
except for some 20-30 employees who were meandering around in the cafeteria, the employees
had returned to work. Soon thereafter, Kranich was again approached by Lee and told that
“most of the employees are going back to work, but that he wanted those who “are choosing not
to go back to work” to be arrested. Kranich replied by asking Lee why he wanted to arrest
employees who refused to go back to work since they were not doing anything wrong. He told
Lee that if he was going to fire them, he should let the employees know as their refusal to leave
would then constitute trespassing, but that, until then, he was not going to do anything to the
employees. (375-376). Lee did not testify. Accordingly, I credit Kranich’s description of what
Lee said to him in the cafeteria that morning.
4. Post “work stoppage” events
The record reflects that sometime in the afternoon of December 15, decisions were
made to terminate the five named discriminatees, although the circumstances surrounding who
made those decisions and why is somewhat murky and confusing. Berios testified that, about
an hour after production had resumed on the kill floor department, Rivera remarked to him that
“whoever started this is going to get fired.” Rivera denied making any such statement to Berios.
(Tr. 595; 857-858). However, Rivera, as noted, was not a very credible witness. He was prone
to exaggeration and not very consistent in his testimony. Berios, on the other hand, came
across as more reliable and trustworthy. I am convinced that Rivera, upset that his department
employees had chosen to engage in a work stoppage that day, did express his anger at what
had occurred by commenting to Berios that those responsible for initiating the work stoppage
would be fired. Rivera, as previously found, had earlier expressed his dissatisfaction about the
work stoppage to Berios when he remarked to the latter during the first cafeteria episode that
those who refused to return to work would be fired. The decisions on who to terminate and why
as noted, were apparently made later that afternoon.
The Respondent, according to Romaniello, maintains a 3-step progressive disciplinary
policy generally used to mete out discipline to employees for infractions committed. The first
_________________________
subpoenaed to appear at any hearing related to the DeJesus matter does not ipso facto lead to
the conclusion that DeJesus chose to admit to the charge, pay the requisite fine, and avoid a
trial. There are, to be sure, certain entries on the face of the citation showing the amount of the
fine, and court costs and fees that would have to be paid by DeJesus to resolve the matter.
What is not clear, however, is when and by whom these amounts were entered on the citation.
Kranich, who wrote up the citation, was never questioned about it. Thus, it is not clear if the
entries were made by Kranich to show how much DeJesus had to pay in fines and related costs
to resolve the matter, or whether they reflect the amounts actually paid by DeJesus at a later
date. Notably, a document attached to the actual citation prepared by Kranich (RX-1) contains
entries which cast doubt on whether DeJesus actually pled guilty and paid the fines, as
assumed by Ciarlello. Unlike the actual citation itself which lists several offenses, the
attachment lists only “Disorderly conduct” as the basis for the citation. In the “disposition”
section of the attachment, the word “undefined” has been entered, and as to fines and court
costs paid by DeJesus in connection with this charge, the attachment contains only “0.00”
entries. Thus, it is simply not clear what the outcome was of the citation issued to DeJesus. In
these circumstances, I am reluctant to accept Ciarlello’s unsupported assumption that DeJesus
pled guilty to the offenses charged with in the citation, as the matter could very well have been
disposed of in some other fashion, including an eventual withdrawal of the charge, refusal to
prosecute, or an outright dismissal.
JD-22-08
5
10
15
20
25
30
35
40
45
50
31
step of the policy requires that an alleged infraction be brought to the attention of, and
discussed with, the employee and memorialized in writing in the employee’s file; the second
step calls for issuance of a “black” or written warning; the last step is a “red” or final warning.
(Tr. 1185). She explained that in most cases when discipline is to be imposed, the
Respondent’s practice is to gather information regarding the incident in question “by talking to
the parties involved; talking to witnesses; witnessing it ourselves; taking a written statement, or
whatever method of information that we can use.” Romaniello further explained that, before
making a final decision involving discipline, she “wants to know the facts that occurred; wants to
know who saw it.” (Tr. 1230).
Romaniello, however, testified that, in this case, the five discriminatees were never
interviewed or spoken to, nor was the progressive disciplinary policy followed, before the
discharge decisions were made because of what she described as the “severity” of the alleged
discriminatees’ misconduct during the work stoppage. She explained that not every act of
misconduct requires use of the progressive disciplinary policy, and that factors, such as the
“seriousness” of the issue, the “magnitude of the event,” and the “potential for violence,” are
considered in determining whether an immediate discharge, without going through the
progressive disciplinary system, is warranted. She testified that, in her view, the potential for
violence created by the discriminatees’ alleged misconduct was so great that their immediate
discharge without first interviewing them or hearing their side of the story was justified.
Keller testified that at around 2 p.m., he spoke with Daubenspeck by phone regarding
the conduct of some of the individuals involved in the morning work stoppage, more specifically,
that of Medina (the gold hat employee), DeJesus, and Mercado Peralta. Keller admitted that he
considered these three individuals to be the “instigators of the whole situation” that occurred at
the facility that morning. (Tr. 775). He recalled explaining to Daubenspeck that DeJesus had
been yelling, screaming, and banging on lockers as he (Keller) tried to communicate with
employees, and that he had been informed by Romaniello that DeJesus pushed a police officer
and was thereafter removed from the facility by the police. Based on that conversation, he and
Daubenspeck agreed to terminate DeJesus for “banging on the lockers in a threatening way,
and because he had been arrested by the police for his conduct.” (Tr. 758). As to Mercado
Peralta, Keller purportedly told Daubenspeck he had been confrontational by getting in Keller’s
face and preventing him from speaking to employees, and had also been removed from the
premises by police. He and Daubenspeck purportedly agreed that Mercado Peralta should also
be terminated but that Rivera and Romaniello should first confirm the identity of Mercado
Peralta as the person in question. They also agreed to terminate Medina for his conduct.
Keller claims that following his and Daubenspeck’s purported decision to terminate
certain employees for alleged misconduct, he met with Romaniello, Rivera, and Fisher around 3
p.m. in the latter’s office, informed them of his discussion with Daubenspeck, and asked them to
confirm the identity of the individuals to be terminated. He specifically recalled telling
Romaniello and others at this meeting that he had reviewed and discussed DeJesus with
Daubenspeck, and had decided to terminate him. According to Keller, this meeting was
essentially to explain what he and Daubenspeck had discussed and of their decision to
terminate certain of the alleged discriminatees. Asked if Garcia was discussed at all during this
latter meeting, Keller claimed Garcia was discussed, and that it was Romaniello who reported to
him at this meeting that Garcia had pushed Avila in the hallway. According to Keller, a decision
was made at this meeting to terminate Garcia for pushing Avila pending confirmation of her
identity. Yet, when asked by Respondent’s counsel if there were any issues during this meeting
regarding the identification of Garcia, Keller unequivocally replied, “No.” (Tr. 753; 756-757; 764-
766).
JD-22-08
5
10
15
20
25
30
35
40
45
50
32
Keller’s testimony as to what was said or known about Garcia at this meeting is
contradicted by Romaniello, who testified that she did not learn of this alleged incident until
three days later, on Monday, December 18. Further, Avila’s own testimony undermines Keller’s
claim in this regard for she testified that she never identified to Romaniello the person who
purportedly touched her in the hallway as she did not know the person. Keller’s claim,
therefore, that Romaniello told him during the Friday meeting that Garcia had pushed Avila and
that there was no issue regarding the identification of Garcia is patently false. Indeed, the
Respondent appears to concede as much for in its post-trial brief, it admits that during that
Friday afternoon meeting, “it was unclear at that time who had pushed Avila, and therefore that
remained to be determined.” (RB: 19). I am convinced that Keller was not being truthful, and
simply lied, when he testified to being told by Romaniello during their December 15, meeting
that Garcia had pushed Avila.
Contrary to Keller, Romaniello testified her meeting with Keller, at which Fisher and
Rivera were present, occurred around 2 p.m., although she could not recall who called the
meeting. Romaniello described the purpose of the meeting was to “discuss the event, what
occurred, and to discuss the issues and events that occurred that made it out of control.” As to
what was discussed at this meeting, Romaniello recalled hearing Keller ask about the identity of
the “gold-hat” employee; heard discussion of an incident “about a particular individual,
presumably DeJesus, banging on the lockers when police arrived;27 heard about the incident
when Keller asked “for an employee, presumably Olivo, to be removed by security;” and heard
of an incident involving an employee, presumably Guzman, pointing a finger in Rivera’s face
and yelling to the crowd, “There’s our problem right here” or “here’s our problem right here.”
She contends that an agreement was reached among those present that the individuals
involved in these incidents should be terminated, and that she then asked Rivera and/or Keller
to get back to her with the names and employee numbers of those individuals so their identities
could be confirmed. (Tr. 1125-1126).28

27 It is worth noting that in her description of what was discussed at this meeting regarding
the conduct of certain employees, Romaniello never mentioned DeJesus’ arrest as having been
brought up or discussed. According to Romaniello, it was at this meeting that the decision to
discharge DeJesus and others was made. On cross-examination, Romaniello testified that she
made the “final call” to terminate DeJesus presumably at this meeting, a claim that is in direct
conflict with Keller’s assertion that he made the decision to terminate DeJesus just an hour
earlier during his conversation with Daubenspeck. (Tr. 1194).
28 Romaniello’s claim that the finger-pointing incident involving Guzman and Rivera was
discussed at this meeting was not corroborated by Rivera. Thus, asked if Guzman was
discussed at this meeting, Rivera stated, “I don’t believe we discussed Guzman.” (Tr. 842). Nor
is there anything in his testimony to suggest that he raised this incident on his own at this
meeting. Rather, according to Rivera, it was at a second subsequent meeting attended only by
him, Romaniello, and Abreu that Romaniello questioned him about the Guzman incident, and
asked for his opinion on what should be done with Guzman, to which he replied that Rivera
should be terminated. (Tr. 843). Abreu, it should be noted, testified only to being present
during Guzman’s discharge interview to interpret for Guzman, and made no mention of having
attended the earlier meeting referenced by Rivera in which Romaniello purportedly asked for his
opinion on what should be done with Guzman. In fact, Abreu testified that she did not
participate in any other discussions regarding discipline to be taken or termination decisions.
(Tr. 1074). It is highly unlikely that the discharge meeting mentioned by Abreu, and the one
referenced by Rivera, are one and the same, as I seriously doubt Romaniello would have asked
Rivera what should be done with Guzman during the latter’s discharge interview. This
inconsistency between Romaniello’s claim, that the decision to terminate Guzman was made
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
33
Romaniello claims that, a short while later, she met with Fisher in the latter’s office for
the purpose of calling Daubenspeck to notify him of the various incidents of misconduct
engaged in by the named discriminatees, and of her decision to terminate the employees in
question. Romaniello remembered “distinctly” that this meeting was between the two of them
only, but then added that she couldn’t remember if anyone else was in attendance. Her
testimony as to who made the final decision to discharge these individuals was somewhat
vague and confusing. For example, at one point in her testimony, Romaniello explained that
she had only made recommendations to Daubenspeck that these individuals be discharged,
which the latter was free to accept or reject. Yet, asked directly by me if Daubenspeck had the
final say regarding the discharges, Romaniello answered yes. However, when discussing the
individual terminations, she repeatedly pointed out that she “made the final call.” (1127-1128;
1130; 1194-1197; 1201; 1203).
Fisher recalled having two meetings, the first that same afternoon in his office around
3:30 p.m. with Keller, Romaniello, and Rivera during which he was informed of what had
transpired that morning, and of the actions of certain employees.29 Because he did not witness
any of the events, Fisher simply left it to Keller and Romaniello at that first meeting to decide
what action should be taken, and then accepted their recommendation that four individuals
identified as having engaged in misconduct be terminated. He claims that at this meeting,
Rivera made reference to a woman, which he described by her job duties, who had purportedly
pushed or shoved someone, and a decision was made to continue trying to identify this woman,
Garcia, as it turned out.
Rivera, however, had no recollection of discussing Garcia at all during this meeting with
Fisher. (Tr. 842). In fact, Rivera testified that he and Avila had not discussed the alleged
touching or pushing incident involving Garcia before this meeting, and that he only learned of it
from Romaniello at his subsequent meeting with the latter, which followed the Fisher meeting.
Fisher’s claim, therefore, that he heard of the Garcia incident from Rivera during this first
meeting is simply not credible given Rivera’s above testimony as to when and how he first
learned of the Garcia pushing incident. The second meeting, Fisher contends, was with
Romaniello in his office, although he was not sure if it was held that same Friday or the following
day, Saturday, and recalls speaking by phone with Daubenspeck during this meeting. During
this phone conversation, he or Romaniello, his testimony does not make clear whom, updated
_________________________
during the meeting attended by Keller, Fisher, Rivera and herself, and Rivera’s claim that
Guzman’s termination was not discussed at this meeting but occurred at a later meeting
involving himself, Romaniello, and Abreu, was not explained, which only serves to cast further
doubt on the overall reliability of both Romaniello’s and Rivera’s testimony.
29 Fisher was vacationing in Atlantic City, NJ that morning when he received a call from
Human Resources employee Christine McCann at around 9:45 a.m. informing him of “a riot at
the facility.” He tried calling security from Atlantic City and reached an individual who essentially
repeated the same thing to him. As McCann was not called to testify, Fisher’s claim of McCann
having referred to what was going at the plant at that time as “a riot,” cannot be corroborated.
However, the testimony of various witnesses makes clear that the protest over the failure to pay
the bonuses began around 9:45 a.m., at about the time Fisher claims to have received the
McCann call, and involved only a few employees in the cafeteria refusing to return to work over
the bonus issue, and was, at that point in time, a peaceful protest and not “a riot,” as purportedly
described to Fisher by McCann. I am convinced that either Fisher exaggerated what he was
told by McCann, or McCann mischaracterized or deliberately misrepresented what was taking
place in the cafeteria at that point in time.
JD-22-08
5
10
15
20
25
30
35
40
45
50
34
Daubenspeck on the decision to terminate four individuals, and their decision to continue trying
to identify the woman, e.g., Garcia, as one of the other employees allegedly involved in
misconduct. (Tr. 1247-1250).
Rivera recalled attending two meetings that Friday, the first with Keller, Romaniello, and
Fisher at around 2:30 p.m. in Fisher’s office. The meeting was held to discuss what had
occurred that morning, including the conduct of several employees. At that meeting, a decision
was made to terminate Medina, the gold hat employee, for putting his finger in Keller’s face and
making a threatening comment; DeJesus for misconduct including banging on lockers in the
hallway and pushing a police officer in the cafeteria; and Mercado Peralta for screaming and
shouting in Rivera’s and Keller’s faces and refusing to allow them to communicate with
employees. As noted, he had no recollection of Guzman or Garcia being discussed at this
meeting.
The second meeting, as previously discussed, purportedly included Romaniello and
Abreu and related to Guzman’s alleged finger-pointing incident. It was at this meeting that
Rivera contends Romaniello asked for his opinion on what to do with Guzman, to which Rivera
replied that Guzman should be terminated. Rivera did not recall either DeJesus, Mercado
Peralta, or Medina being discussed at this meeting with Romaniello, but believes they may have
been. He contends that it was during this meeting that Romaniello told him about Avila being
grabbed on the wrist by Garcia at the time Bednar was asked to remove Olivo. Rivera testified
he was unaware of what had occurred between Garcia and Avila until told of the incident by
Romaniello at that Friday afternoon meeting. Rivera could not recall if a decision regarding
disciplining Garcia for her conduct towards Avila was made at this meeting with Romaniello.
(842-843; 846) This latter testimony as to when he first learned of this alleged Garcia-Avila
incident does not, however, square with, and indeed contradicts, Romaniello’s claim that she
first learned of the incident three days later, on Monday, December 18.
Finally, Berios testified that on Monday, December 18, he was at a regularly scheduled
supervisors meeting attended by Rivera, Collazo, and several other supervisors. He recalled
the Friday work stoppage being discussed, and hearing Rivera remark that “these people,”
referring to the named discriminatees, have to be fired, and that Rivera and Collazo laughed
aloud at his comment and seemed to find the matter amusing. (Tr. 597). He contends that
Rivera cited the reasons why certain of the individuals should be fired. Rivera, for example,
purportedly stated that Guzman had yelled at him and blamed him for everything, that DeJesus
was terminated for pushing a police officer, and that Garcia had pushed his girlfriend. Berios
did not hear Rivera give reasons for why Mercado Peralta or Olivo should be terminated. (599).
Rivera recalled attending the Monday, December 18, supervisors’ meeting mentioned by
Berios. Although he did not specifically deny stating at this meeting, in front of Berios and
Collazo, that those who took part in the work stoppage have to be fired, he expressly denied
there being any discussion at this meeting of the events of December 15, or of any of the
disciplinary actions to be taken. Collazo was never questioned about this meeting, or whether
he heard Rivera make the comments attributed to him by Berios. I credit Berios, and find that
Rivera, indeed, remarked aloud that the alleged discriminatees had to be fired. Rivera’s remark
in this regard was in line with his earlier remark to Berios about firing those employees in the
cafeteria who were refusing to return to work. The Respondent made no effort to obtain
corroboration of Rivera’s denial from Collazo, who was also at this meeting. Given the scope of
the December 15, work stoppage, and the rather extraordinary events of that day, I find it highly
that the work stoppage and the resultant employee terminations would not have been a subject
of conversation or a topic for discussion at the Monday morning supervisor’s meeting, as
professed by Rivera. Rivera’s denial in this regard is rejected as simply not credible.
JD-22-08
5
10
15
20
25
30
35
40
45
50
35
5. The discharge notifications
(a) Garcia
Garcia worked the remainder of the day on Friday, and all day Monday. Towards the
end of her workday, Collazo told Garcia her supervisor wanted to speak with her. Collazo
escorted her to Romaniello’s office, where she met with the latter and Rivera. According to
Garcia, Romaniello spoke very little at this meeting, and Rivera did most of the talking. She
recalled Rivera asking if she knew what had happened on Friday. Garcia replied that she knew,
and Rivera then asked if she knew “that they had caused a lot of damage in the plant.” When
Garcia asked what damage had been done, and asserted that no one had done anything wrong
that day, Rivera answered that a lot of damage had been done, and that people like her (Garcia)
were a threat to the Company. Garcia responded that she did not believe she was a threat to
the Company, had not done anything wrong, and that she had simply spoken in a
straightforward manner. At that point, Garcia was told she was fired. When Garcia asked what
she had done to be fired, Rivera told her it was because she had “pushed a person on Friday.”
Garcia recalled hearing Romaniello mention something about “pushing people.” Garcia then
asked for the name of the individual she allegedly pushed, but Rivera refused to provide her
with that information. (Tr. 75-76)
Romaniello testified that she and Rivera met with Garcia in her (Romaniello’s) office, that
the entire meeting lasted no more than five minutes, and that she simply told Garcia, through
Rivera as interpreter, that she was being terminated for putting her hands on a Human
Resources employee under circumstances that had the potential for creating a safety risk to
others. She informed Garcia that this type of conduct would not be tolerated in the Company.
Although Garcia denied the accusation, Romaniello nevertheless told her that the affected
individual reported the incident to her as well as to security, and that she believed the employee
in question. Romaniello never bothered to question any of the employees or other managers
who were in the hallway when the incident allegedly occurred who might have corroborated
Avila’s account or Garcia’s denial of the incident. Romaniello testified that this was the only
reason for Garcia’s termination. Garcia was then escorted by security out of the plant. (Tr.
1148; 1198).
Rivera provided no testimony as to what he may or may not have said or done during
Garcia’s discharge interview. Thus, he offered no corroboration for Romaniello’s account of
what the latter claims was told to Garcia at this interview. Garcia’s testimony of what Rivera
said to her during that interview is, therefore, uncontested. Although Romaniello, as noted,
testified to what she purportedly told Garcia through her interpreter, Rivera, Garcia, who neither
speaks nor understands English, would not have understood what Romaniello may have said to
her and could only testify as to what she heard Rivera say to her during that meeting. In these
circumstances, I credit Garcia’s unchallenged account of what she was told by Rivera, and find
that Rivera told Garcia that the employee protest had caused damage to the plant, that Garcia
was a threat to the Company, and that she was being fired for pushing an unidentified person
during the Friday incident. Garcia, along with the other alleged discriminatees, was not given
anything in writing explaining the reason for her termination. However, individual “Termination
Payroll Change” forms, setting forth the reason(s) for the terminations, were prepared, some by
Romaniello, others by persons unknown, on December 30, for all of the alleged discriminatees.
The “Termination Payroll Change” form prepared on Garcia, received into evidence as RX-19,
JD-22-08
5
10
15
20
25
30
35
40
45
50
36
lists “insighting [sic] a riot” as the reason for her discharge, with the “05” notation next to it.30
(b) Guzman
While the decision to terminate the named discriminatees was made on Friday, Guzman
was the only one whose termination was carried out that same day.31 Olivo and Garcia were
verbally informed of their terminations on Monday, December 18. The record is unclear as to
how and when Mercado Peralta and DeJesus were informed of their terminations. Regarding
his termination, Guzman testified that following the morning work stoppage, he returned to work
and worked the entire shift, until 6:20 p.m., at which time Collazo approached and escorted him
to Romaniello’s office, where he found Romaniello, Rivera, and Abreu waiting. Collazo did not
remain for the meeting. Once inside, Guzman recalls Romaniello spoke to him through Abreu,
who served as interpreter. According to Guzman, Romaniello told him he was being terminated
because of the comments he had made to Rivera earlier that morning. Guzman was not told
what the comments were, but assumed it was the comment he had made to Rivera about
management treating employees like they were enemies for which he was being fired.
Romaniello, according to Guzman, gave no other reason for the termination. Guzman then
apologized if he had offended anyone and, soon thereafter, was escorted by security to his
locker to retrieve his personal belongings, after which he left the facility. (231-232; 237).
As to Guzman, Romaniello testified she and Rivera met with Guzman in her office
around 4 p.m., and that she was the primary speaker while Rivera interpreted for her.
Romaniello claimed she told Guzman that he had pointed his finger in Rivera’s face while
shouting to the crowd of employees, “This is the reason for our problem,” that his conduct
incited others to act aggressively, and that the Company could not allow such behavior in the
plant. (Tr. 1136). She contends Guzman simply shook her hand and thanked her, after which
he was escorted out of her office and taken to security where he was allowed to retrieve his
personal belongings from his locker. The Payroll Change form prepared by Romaniello on
Guzman, received into evidence as RX-17, lists “inciting a riot” and the “05” as the reason for
his termination.32 (Tr. 850-851; 1073; 1160).

30 Romaniello admits that the “05” and “see attached” notations were written by her, but that
the “insighting a riot” entry is not her handwriting, and therefore was not inserted by her. She
explained that “05” entry is the Company code for “other improper conduct.” No explanation
was given as to who made the “insighting a riot” entry on the termination report, or when it was
made. Attached to RX-19 is a report purportedly prepared by Lee setting forth the latter’s
description of the events of March 15.
31 Medina, the gold-hat employee, was also discharged on Friday. His discharge is not
alleged to be unlawful and, consequently, requires no further discussion here.
32 Attached to Guzman’s termination report is a memo prepared by Romaniello containing a
paragraph description of Guzman’s alleged misconduct. The attached memo states that
Guzman “actively engaged in inciting other employees to not return to work,” and that, after
employees had been persuaded to return to work, Guzman “began yelling to the crowd and
pointing to …Rivera, stating that, ‘this is our problem right here.’” The memo further states, inter
alia, that this conduct by Guzman “incited the crowd again and elevated the situation to a point
where the police department had to be called.” The memo is incorrect in at least two respects.
First, its claim that Guzman’s alleged misconduct towards Rivera resulted in the local police
being called is inaccurate since the police were already in the facility, having been summoned
earlier by Bednar following the Olivo incident in the hallway. Second, it quotes Guzman as
having said to Rivera, “This is our problem right here.” Neither Guzman nor Rivera, however,
claimed to have made any such remark. Rivera, as noted, testified that Guzman’s actual words
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
37
Romaniello did not identify Abreu as being present at this meeting. Abreu, however,
testified that she, in fact, was present and served as interpreter, contradicting Romaniello’s
claim that Rivera interpreted during the Guzman discharge interview. Abreu further recalled that
Guzman was simply told he was being terminated for “disorderly conduct,” but did not recall if
Guzman was given any specifics as to the nature of the disorderly conduct in question. (Tr.
1073). Rivera, who did attend Guzman’s discharge interview, corroborated Abreu’s assertion
that the latter, not he, served as interpreter. Rivera nevertheless agreed with Romaniello that
Guzman was told of the alleged finger-pointing incident and that his conduct was viewed as a
threat and could not be tolerated. He recalled Guzman apologizing for his conduct.
(c) Olivo
Olivo, as noted, was terminated on Monday, December 18. He testified that after
returning to work following the morning protest, he worked until around 4 p.m., at which time he
was approached by Collazo who accompanied him to an office where Romaniello, Rivera, and
another individual whom he did not know, were waiting. Once in the office, Romaniello,
speaking through Rivera who served as interpreter, explained that they wanted to discuss what
had happened in the hallway that morning. Romaniello went on to say that he would not be
allowed to continue working at the Company because he had behaved in an aggressive
manner, and they believed if another incident were to occur, he would again act aggressively.
Olivo then asked Romaniello why he was being fired since all he had done that morning was
express his view as to the problems the Company was having. Romaniello, he contends,
simply answered, “Well, you’re fired,” and instructed him to turn in his Company ID badge.
Rivera, at that point, wished him luck, and he was then escorted out of the office by security.
(327-328).
Romaniello testified that after Rivera confirmed for her, sometime between Friday and
Monday, Olivo’s identity, she and Rivera met with Olivo in her office for about 5 minutes on
Monday to notify him of his termination. She recalls telling Olivo that his conduct on Friday of
yelling and screaming so loud as to prevent Keller from being heard was unacceptable, that it
incited other employees to engage in similar conduct, and that it had created a safety issue for
other employees in the plant. Romaniello informed Olivo he was being terminated for engaging
in such conduct. Olivo, she recalls, apologized and asked her for another chance. Romaniello
declined his request, explaining that his behavior could not be tolerated at the facility and she
did not want to take that risk. Although somewhat more descriptive on direct examination in
explaining why she decided to terminate Olivo, when asked on cross-examination “what were all
of the reasons” for Olivo’s termination, Romaniello simply stated, “safety risk” as the sole reason
for the discharge, which she then defined to mean that Olivo had “incited other people in a very
volatile situation.” Asked if there were any other reasons for his termination, Romaniello
unequivocally replied, “No.” (Tr. 1145-1146; 1202).
Rivera testified that he served as Romaniello’s interpreter during Olivo’s discharge
meeting, and that Romaniello basically informed Olivo he was being terminated for contributing
to the creation of an unsafe environment during the Friday work stoppage. Towards the end of
_________________________
were, “This is our true enemy” (Tr. 829), while Guzman testified that he simply told Rivera that
the Respondent was treating its employees as enemies. Further, a review of Guzman’s
description of what transpired during the discharge interview does not reveal any admission by
Guzman of the phrase attributed to him by Romaniello in her letter. I find the inaccuracies in the
document render it purely self-serving and unreliable and give it no weight.
JD-22-08
5
10
15
20
25
30
35
40
45
50
38
the meeting, Olivo, he contends, apologized, shook Rivera’s hand, and told him it had been a
pleasure working with him. (Tr. 852). The termination report prepared by Romaniello on Olivo
also lists “Inciting a riot” and the “05” notation as the reason for his discharge. Like the others,
Olivo was given no written explanation for his discharge.
(d) Mercado Peralta
The decision to discharge Mercado Peralta and DeJesus, according to the Respondent,
was made on December 15, although the record, as noted, is not clear as to when they may
have been informed of those decisions. Both, as noted, were removed from the premises by
the police towards the latter part of the work stoppage on the morning of December 15.
Romaniello testified that in the week following the work stoppage, both she and Abreu tried
unsuccessfully to contact Mercado Peralta to notify him of his discharge. (Tr. 1157). She
claims that at some point during the week, she instructed Human Resources Consultant Mike
Lupton to notify Mercado Peralta that he had been terminated and, in response to Lupton’s
inquiry presumably regarding the reason for the termination, told Lupton that “it was a safety
violation as a result of Friday, December 15.33 (1163).
Asked by the General Counsel on cross-examination what her reasons were for
terminating Mercado Peralta, Romaniello answered, “He was a safety risk, resisting direction,
resisting the police,” and resisting Rivera’s attempt to talk to him. Specifically, Romaniello
explained that the “resisting direction” charge referred to his conduct during the second cafeteria
episode when Mercado Peralta disobeyed instructions given to employees returning to work to
proceed in a certain direction to the hallway, and not through some double doors that led to the
Fabrication department. Mercado Peralta, she contends, insisted on proceeding through the
double doors. On the charge of resisting Rivera’s attempt to talk to him, Romaniello explained
that this referred to the incident in the cafeteria when Rivera walked up to Mercado Peralta, put
his arm around him, and tried to speak with him. Romaniello, who claimed to have been only
five feet away from Mercado Peralta and Rivera when this incident occurred, testified to seeing
the former move away from Rivera and “bust through the crowd to get to [the] double doors” he
had been instructed not to go through. She contends that the police and another supervisor
pursued Mercado Peralta and brought him back. (Tr. 1196-1197). Presumably, it was at this
point that Mercado Peralta was escorted off the premises.
Mercado Peralta testified that during the week after the December 15, walkout, he called
and spoke with Avila at Human Resources to find out what was happening regarding his
employment, explaining to Avila that he had not done anything and wanted to continue working
at MOPAC. Avila purportedly told him that Abreu was handling the matter and would be calling
him. He never received a call from Abreu, but did receive a call one evening at home from an
individual who declined to identify himself, presumably Lupton. This individual, Mercado Peralta
contends, accused him of being the cause of the problem at the plant. When Mercado Peralta
replied that he had not caused any problems at the facility, the individual informed him he was
no longer working for MOPAC. Mercado Peralta replied that that was fine with him, and has
heard nothing further from the Company since then.
Lupton was not called to confirm or deny Romaniello’s claim that she instructed him to
inform Mercado Peralta of his discharge, nor to confirm or deny whether he was the individual

33 Lupton did not testify, but Romaniello suggested in her testimony that Lupton may have
spoken with Mercado Peralta during the week which led her to instruct Lupton to notify Mercado
Peralta of his termination. (Tr. 1157).
JD-22-08
5
10
15
20
25
30
35
40
45
50
39
that phoned Mercado Peralta regarding his discharge. I am satisfied from a composite of
Romaniello’s and Mercado Peralta’s testimony that the individual who called the latter to notify
him of his termination was indeed Lupton. As Lupton was not called to testify, Mercado
Peralta’s claim of what Lupton said to him during their phone conversation, e.g., that Mercado
Peralta had been the cause of the problem at the plant, is uncontested and accepted as true.
The Termination Payroll Change form prepared by Romaniello on Mercado Peralta simply cites
“05” as the reason for the discharge, with a notation to see an attached the document appended
thereto, e.g., the alleged Lee report identical to the one attached to Garcia’s Payroll Change
form. (see RX-20).34 Asked if the attached Lee report factored into Mercado Peralta’s
discharge, Romaniello answered, “Number 5, other improper conduct, is the reason.” (Tr. 1160).
(e) DeJesus
DeJesus did not testify.35 As noted, it is not clear who made the decision to terminate
DeJesus as both Keller and Romaniello provided conflicting testimony on who made the
decision. Keller, for example, testified he made the decision during his phone consultation with
Daubenspeck, and subsequently informed Romaniello of that decision. Romaniello, on the
other hand, testified that she made the decision to terminate DeJesus and subsequently notified
Daubenspeck of her decision, who supported it. (Tr. 761; 1194). As to when DeJesus’ was
actually terminated, Keller and Romaniello both contend the decision was made on December
15. However, the Termination Payroll Change form prepared on DeJesus shows “12-19-06” as
the “Actual Termination Date.” (RX-21).36 Further, there is no record evidence to show that
DeJesus was ever notified of his termination.37 DeJesus, as noted, was removed from the

34 As noted, Mercado Peralta’s termination report, unlike that prepared by Romaniello on the
other named discriminatees, does not contain an “inciting a riot” entry, and simply gives the “05”
disorderly conduct entry as the basis for the discharge. The attachment to Mercado Peralta’s
termination report consists of an undated and unsigned incident report identified by Romaniello
as having been prepared by Lee. Lee did not testify.
35 The Respondent, on brief (RB:25, fn. 6), contends that an adverse inference should be
drawn from DeJesus’ absence as a witness. I disagree. A discriminatee’s failure to appear and
testify does not necessarily warrant the drawing of an adverse inference, or preclude findings in
his or her behalf if the evidence so warrants it. Davey Roofing, Inc., 341 NLRB 222, 242 at fn. 1
(2004). Salisbury Hotel, Inc., 283 NLRB 685, 693 (1987). As pointed out by the Board in the
above cases, the testimony of a discriminatee is not a sine qua non for relief under the Act.
36 A copy of the Lee report was also appended to RX-21. Romaniello’s attempt to explain
why RX-21 shows a “12-19-06” termination date for DeJesus when he purportedly was
discharged on 12-15, was confusing and made little sense. Thus, she described this obvious
discrepancy as a “practice” issue, explaining that the day after the last day worked is considered
the employee’s actual termination date. However, since DeJesus’ last day of work was Friday,
December 15, when he was removed from the plant and denied re-entry, then, according to
Romaniello’s explanation, the Termination Payroll Report should have listed “12-18-06” and not
“12-19-06” as DeJesus’ actual termination date. Romaniello admits she did not prepare
DeJesus’ Termination Report, and that the only entry she made therein was the “#05 –
Inappropriate Conduct” entry found under the “Reason for Termination” section of the Report.
Nor could she identify who may have prepared the Report or listed “12-19-06” as DeJesus’
actual termination date.
37 In its posttrial brief (p. 21), the Respondent states that DeJesus “was told he was
terminated for creating an unsafe environment,” e.g., “yelling, screaming, and banging on
lockers, and for his aggressive behavior in inciting a riot.” It cites to Rivera’s testimony at
Transcript p. 873 to support its claim that DeJesus was told the reasons for his termination. A
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
40
facility by the police during the second cafeteria episode, and did not return to work after that.
Following his removal, the Respondent blocked his ID card so that DeJesus would not have
access to the facility.
Keller claims that in his discussion with Daubenspeck, he told the latter that DeJesus, in
addition to yelling, screaming, and banging on lockers “in a threatening way,” had, as
purportedly reported to him by Romaniello, also “approached and pushed the police” in the
cafeteria, and, based on this information, they decided to terminate DeJesus. (Tr. 758).
Although Romaniello claimed to have seen DeJesus resisting and being led away, she made no
mention in her testimony of seeing DeJesus push a police officer, or of telling Keller that she
had. Fabrication superintendent Acosta also testified to seeing DeJesus being detained by the
police and, while he recalled seeing DeJesus trying to walk away from the police, and offering
some resistance to being detained, he never claimed to have seen DeJesus push a police
officer. Indeed, for that matter, none of the police officers involved in the incident with DeJesus
testified to being pushed by DeJesus. Nor is there any evidence, such as testimony from either
Kranich or Ciarlello, to suggest that they may have notified Keller of DeJesus’ removal and
arrest. Keller himself made no such claim, nor did he, as noted, explain who told him about
DeJesus’ arrest or of the events that led to the latter’s removal. Keller’s claim of being told by
Romaniello that DeJesus pushed a police officer during the cafeteria incident lacks
corroboration and strikes me as a pure fabrication and simply not credible.
Rivera testified that DeJesus was terminated for “his aggressive behavior” during the
Friday protest, and for “inciting a riot,” but, unlike Keller, did not cite the pushing of a police
officer as a ground for the termination. He explained that DeJesus displayed his aggressive
behavior” by “running up towards the group, running back” with his fists in the air and screaming
and shouting, and by banging on lockers on various occasions and getting in his and Keller’s
face. He contends that DeJesus incited employees to riot by trying to get them to scream and
yell, rather than discuss the issues. Rivera contends that DeJesus did, in fact, cause a riot at
the facility because the employees that day conducted themselves as “an out-of-control mob.”
Asked if DeJesus’ alleged conduct of standing on a cafeteria table played a role in his
termination, Rivera could recall only that this conduct was discussed during the Friday
afternoon, but could not recall if it was a factor in DeJesus’ discharge. (Tr. 873-874).
Romaniello, as noted, claimed she made the “final call to fire” DeJesus because “it was
an out-of-control situation, a safety risk, and he was taken out by police,” and that there were no
other reasons for the discharge. Her claim of having made the “final call” to terminate DeJesus,
as noted, conflicts with Keller’s assertion that he and Daubenspeck made that decision during
their phone conversation, which Keller described as having occurred before his subsequent
meeting with Romaniello. Romaniello did not mention DeJesus’ alleged pushing of a police
officer in the cafeteria as a factor in the decision, thereby contradicting Keller’s assertion that
she had notified him of this incident. As to who may have actually notified DeJesus of his
discharge, Romaniello identified someone name “Jorge” as the one who may have
communicated that decision to DeJesus. (Tr.1163; 1194). “Jorge” was not called to testify.
_________________________
review of Rivera’ testimony, however, makes clear that the latter was simply explaining why
DeJesus was terminated, not describing what DeJesus may have been told about his
termination. Nothing in Rivera’ testimony suggests that DeJesus was ever notified of the
reasons for his termination.
JD-22-08
5
10
15
20
25
30
35
40
45
50
41
The allegations
The General Counsel contends that the 90-minute work stoppage was from its inception
to its conclusion protected conduct, and that the named discriminatees were unlawfully
discharged for their participation in that stoppage. The Respondent counters that while the work
stoppage may have been protected when it first began, it lost its protection “when the crowd
prevented [Bednar] from removing…Olivo” and the police had to be called.38 (RB:25) As to the
termination of the five named discriminatees, the Respondent contends they were terminated
not for their participation in the work stoppage but rather for “inciting a riot.”
B. Analysis
1. The protected nature of the work stoppage
The parties, as noted, agree that the work stoppage was, at its onset, protected under
Section 7 of the Act. The Board and the courts have long held that when a group of
unrepresented employees spontaneously cease work over a wage-related issue or to protest
unsatisfactory work conditions, said conduct presumptively enjoys the protection of the Act.
NL.RB v. Washington Aluminum Co., 370 U.S. 9 (1962); California Gas Transports, 347 NLRB
No. 118, slip op. at 6 (2006). There are, however, circumstances in which an otherwise
protected work stoppage could lose its statutory protection. Thus, in Quietflex Mfg. Co., 344
NLRB 1055 (2005), cited by both the General Counsel and the Respondent in support of their
respective positions, the Board set forth certain criteria to be used in determining when in-plant
collective employee action, like the work stoppage here, loses its protection.39 Applying the
Quietflex criteria, I am in agreement with the General Counsel that the work stoppage was
protected throughout its approximately 90-minute duration.
The work stoppage began at around 9:45 a.m. on December 15, when Garcia and other
kill floor department employees, on not receiving their anticipated Christmas bonuses along with
their regular paychecks, spontaneously and collectively decided not return to work to protest the
Respondent’s failure to distribute the bonuses. Contrary to the Respondent’s assertion on brief
(RB:50), and as found above, Garcia and the other employees were never told by Rivera they
would be getting a 10-hour bonus, nor did she or any other employee demand that they be
given a 20-hour bonus as a quid-pro-quo for returning to work. Rather, employees during the
first cafeteria episode simply refused to return to work until someone from upper management
came and explained why the bonuses had not been handed out. Clearly, the Respondent’s

38 The Respondent’s position at the hearing, that the work stoppage began as protected
conduct which lost its protection at some point during its 90-minute duration, stands in sharp
contrast to the position it took in a February 20, 2007, pretrial position statement it submitted to
the Region, and in a July 23, 2007 pretrial brief it filed with the Board opposing a request for
10(j) injunctive relief in this matter, wherein it argued, inter alia, that “[n]othing about this
situation made it a protected in-plant strike.” (see GCX-23, p. 5; GCX-24, p. 7).
39 The following ten criteria were cited by the Board in Quietflex as relevant to making this
determination: (1) the reason for the work stoppage; (2) was the work stoppage peaceful; (3) did
it interfere with production or deprive the employer access to its property; (4) did employees
have adequate time to present their grievances to management; (5) were employees warned
they must leave the premises or face discharge; (6) the duration of the work stoppage; (7) were
employees represented or did they have a grievance procedure; (8) did employees remain on
the premises beyond their shift; (9) did employees attempt to seize employer’s property; (10) the
reason for which the employees were ultimately discharged.
JD-22-08
5
10
15
20
25
30
35
40
45
50
42
failure to distribute Christmas bonuses, which the employees reasonably expected to receive
given the Respondent’s past practice, was a proper subject for concerted action by the
employees. Skrl Die Casting, 222 NLRB 85, 89 (1976). This Quietflex factor weights in favor of
finding the work stoppage to be protected.
As to whether the work stoppage was peaceful, witnesses on both sides offered contrary
views on the conduct of the protest. The alleged discriminatees, for example, described the
situation in the hallway and cafeteria as orderly, and their discussions with management as not
loud but rather peaceful conversations. The Respondent’s witnesses, on the other hand, used
terms such as “chaotic,” “volatile,” “out of control,” “near riot,” and “near violent” to describe the
employees’ conduct and behavior in the hallway and during the second cafeteria episode. The
truth, I find, lies somewhere in between. Thus, I do not believe that the situation either in the
hallway or during the second cafeteria episode was chaotic, near riotous, or “out of control” as
the Respondent would have me believe. Nor do I fully believe the alleged discriminatees’
characterization of the employees’ behavior during these episodes as completely orderly and
not loud. Rather, I find the tenor of the work stoppage was more aptly described by Respondent
witness, Roman and by General Counsel witness, Hernandez.
Roman described the employees in the hallway as being “excited” and “loud” as they
tried to communicate their concerns over the Christmas bonus with Keller, who, in turn, was
trying to calm them down by telling them a meeting would be held after work to discuss the
matter. According to Roman, “everybody was excited,” and talking loud and at the same time.
Nevertheless, as earlier pointed out, she also credibly testified that she could hear what Keller
was saying to employees because “he’s the one that has the big, really strong, voice.” (Tr.
1023). Hernandez similarly credibly testified that the hallway was noisy but, like Roman,
attributed it to the fact that everyone was talking at the same time. He testified that while Keller
was at times interrupted by employees trying to speak, Keller nevertheless was allowed to
speak and, like Roman, claimed that Keller could be heard over the noise in the hallway. Both
Keller and the employees, he contends, were equally as loud in the hallway. He credibly
disputed Respondent’s claim that employees in the hallway engaged in yelling or shouting either
in the hallway or during the second cafeteria episode. (Tr. 513). Indeed, Bednar, who, as noted,
was not a particularly reliable witness, conceded on cross-examination that employees were
only raising their voices and waiving papers in the air, and not screaming, as he initially testified
to on direct examination. On the question of whether he heard employees banging on lockers,
Hernandez, I find, credibly testified that while “a pair” of employees engaged in some light
tapping on lockers in the hallway, there was no loud banging on the lockers, as claimed by
various Company witnesses.
Undoubtedly, employees who took part in the work stoppage could reasonably be
expected to be angry and upset on not receiving their anticipated Christmas bonuses, or a clear
explanation from Keller on why that decision was made. It is hardly surprising, therefore, given
the reason for the work stoppage and the large number of employees who participated in it, that
the noise level in the hallway and during the second cafeteria episode would have been high.
The Board has long recognized that disputes over wages, hours, and working conditions, which is
what the work stoppage here over the Christmas bonuses was all about, are among the disputes most
likely to engender ill feelings and strong responses. Consumers Power Company, 282 NLRB 130
(1986). Thus, while the work stoppage was noisy and loud, with an occasional shouting, as
occurred when employees in the hallway were ordered by the police officer to shut up, it was, I
find, a relatively peaceful one, devoid of any violence or threats, usage of profanity or foul
language, damage to property, or injury to persons.
There was, of course, the incident in the hallway when the alleged discriminatees and
JD-22-08
5
10
15
20
25
30
35
40
45
50
43
other employees encircled Olivo to prevent his removal by Bednar, which the Respondent
insists was the defining moment that transformed the work stoppage from a protected to an
unprotected one. I am not, however, convinced that this particular incident was as sinister or
threatening as the Respondent would have me believe. Rather than being an act of aggression,
as Keller, Rivera, and Bednar strongly suggest, the actions by these individuals was more
reflective of employees demonstrating their support for, and solidarity with, Olivo who had been
speaking out on their behalf and who, the employees believed, had not engaged in any
misconduct warranting his removal. Other than Bednar’s discredited account that Mercado
Peralta and others taunted and challenged him with hand gestures to come forward and remove
Olivo, there is no credible evidence that this incident involved anything more than a handful of
employees lending their support to Olivo by encircling him to prevent his removal. There was
no violence, physical contact made, threatening or aggressive behavior directed at management
or other employees, nor profanity or abusive language used by Mercado Peralta, Garcia,
DeJesus, or any of the other employees who took part in this incident.
The assertions by Keller, Rivera, and Bednar, that the employees’ conduct in encircling
Olivo caused them to be fearful of being attacked or physically harmed, or that a riot might
break out, was, in my view another exaggeration, designed, I am convinced, to bolster and
justify the Respondent’s subsequent actions. Support for this finding is evident from officer
Kranich’s description of the 911 call he received from an unidentified MOPAC security guard,
who reported that a large fight was taking place among some 50-60 employees at the facility,
and the report he received on arriving at the facility that a security guard was being assaulted in
the hallway. Both reports were patently false, as no evidence was produced, nor, for that
matter, any claim been made by the Respondent, that any fighting among employees occurred
in the hallway that day, or that any assault was attempted or committed on a security guard,
employee, or management representative at the facility that day. The only incident remotely
suggestive of an assault having taken place in the hallway that day involved the Garcia-Avila
“touching” or “hand-grabbing” allegation, which, as previously discussed and found, did not
occur. Neither of the individuals who made these reports to Kranich were called to testify,
leaving intact and unchallenged Kranich’s description of what he was told was occurring at the
facility warranting an official police response. Kranich, as noted, was generally a fairly reliable
and credible witness, and his undisputed account of the reports he received is credited. I am
convinced that the false reports made to the police by these unidentified MOPAC security
guards regarding what was taking place in the facility at the time were clearly intended to depict
the situation as being worse than it actually was.
The work stoppage, as noted, was confined to the cafeteria and the locker room hallway
away from the production areas of the facility. The only slowdown in production resulting from
the work stoppage occurred in the kill floor or slaughter department where the protesting
employees worked. By itself, however, this fact does not render the work stoppage
unprotected. As the Board noted in Quietflex, supra at 1057, fn. 6, it is not considered an
interference of production where the employees do no more than withhold their own services.
While the work stoppage may obviously have created some inconvenience, there is no evidence
that it disrupted or interfered with other production areas of the facility.40 For example, the

40 Fabrication department superintendent Acosta’s testimony strongly suggests that the
production in his department was still ongoing while the work stoppage was in progress. Thus,
he testified that after being present during the second cafeteria episode, he decided to leave the
cafeteria and head back to his department because he had to hand out paychecks. He
explained that he instructed his supervisors to keep the fabrication employees in their
production area and not let them go on break because he did not want them “joining the rest of
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
44
hallway where employees gathered was generally used to gain access to locker rooms,
bathrooms, uniform and linen storage bins, and as an occasional passageway for forklifts.
There is, however, no evidence that employees seeking access to the locker rooms, bathrooms,
or the laundry bin, or that forklifts had attempted to use, but were prevented from doing so
during the hallway episode of the work stoppage, which lasted, more or less, about a half-hour.
Undoubtedly, the large number of employees gathered in the hallway during that 30-minute
period might have dissuaded employees not involved in the work stoppage from seeking to
access these areas. Nonetheless, the record is devoid of any evidence suggesting that this in
fact occurred.
In any event, employees gathered in the hallway not because they sought to extend the
work stoppage beyond the cafeteria area where the work stoppage began, but rather because
they were urged by management to come out of the locker rooms and into the hallway so that
Keller could address their concerns. As noted, following Rivera’s initial discussion with Garcia
and other employees in the cafeteria at the onset of the work stoppage, employees appeared
ready to take Rivera up on his offer to either return to work or leave the plant. Employees, as
noted, chose Rivera’s latter option, left the cafeteria, and entered the locker rooms to prepare to
leave the premises. However, as they were doing so, Berios asked them not leave but to step
out into the hallway so Keller could speak with them. Thus, it was at the Respondent’s request
that the gathering in the hallway took place. Keller could just as easily have asked the
employees to return to the cafeteria, a much larger and open location, to discuss the matter of
the bonuses with them. He chose, instead, to address the employees in the hallway, running
the risk that this might serve to hinder use of the hallway by others not involved in the work
stoppage, or otherwise interfere with other aspects of production. As noted, there is simply no
evidence that any such interference or disruption in production took place, but to the extent it
could have done so, it would have been a problem of the Respondent’s own making, as it was
Keller who chose the hallway as the venue from which to address employees.
Nor was any evidence presented to show that employees not involved in the work
stoppage were unable to use the cafeteria for its intended purpose, e.g., taking breaks, having
snacks, etc. Indeed, Officer Kranich testified that when he entered the cafeteria following the
hallway episode, he noticed people were already there, “talking, having their snack, or break-
time, whatever.” (Tr. 386). Olivo similarly testified, without contradiction, that there were other
employees taking their break in the cafeteria when the protesting employees entered the
cafeteria from the hallway. Asked if the work stoppage in the cafeteria interfered with those
workers who were on break, Olivo replied, “I don’t think so because the ones that were able to
go back to work could, and the ones who wanted to stay could.” His testimony in this regard
was not challenged and is accepted as true. In short, other than the cessation of work in the kill
floor or slaughter department by the protesting employees, there is no evidence that the work
stoppage interfered with, disrupted, or adversely affected the Respondent’s overall operations,
or that the Respondent was denied access to any part of its facility or property. This particular
Quietflex factor, I find, weighs in the employees’ favor and supports finding the work stoppage to
be protected.
As to whether employees were given an opportunity to present their grievance to
management, e.g., Quietflex factor 4, the record makes clear that when Rivera appeared in the
_________________________
the kill floor people” who involved in the work stoppage. Acosta’s fear, therefore, was not that
his department employees would be prevented by the work stoppage from accessing or using
the cafeteria, but rather that the fabrication employees might decide to join in with the kill floor
employees and support the work stoppage. (Tr. 709).
JD-22-08
5
10
15
20
25
30
35
40
45
50
45
cafeteria to inquire why employees had not yet returned from their breaks, Garcia and other
employees presented their grievance to him, explaining that they were upset at not receiving
their Christmas bonuses, and stating that they would not return to work until they received an
explanation from upper management on why the bonuses were not distributed. Rivera,
however, never offered Garcia or the employees any such explanation, telling them instead that
they should either return to work or leave the premises, and that he would try to arrange a
meeting after work to discuss the issue. Indeed, at no time during work stoppage did Keller or
anyone else from management provide employees with an explanation on why they had not
received their customary 20-hour bonus. The evidence suggests only that at some point in time
either in the hallway or during the second cafeteria episode, Keller told employees he might be
able to get them a 10-hour bonus but that they would have to wait until the following Monday for
a more definitive answer. Thus, while this Quietflex factor appears to have been met, I find it
only minimally weighs in the Respondent’s favor, as the Respondent never actually explained to
employees why it had not paid out the entire 20-hour bonus.
I am convinced that had Keller provided employees with such an explanation, which I am
further convinced he had an opportunity to do in the hallway, employees might very well have
been persuaded to end their protest and return to work. Employees, as noted, were not
refusing to return to work until they received their 20-hour bonus, as the Respondent speculates
on brief, but rather were demanding an explanation as to why the Respondent chose not to
hand out bonuses that year. In Quietflex, the Board found this particular criteria to have been
satisfied because the employer in that case made a reasonable effort to respond to the issues
raised by the protesting employees, and immediately agreed to remedy one of the employees’
concerns and expressed a willingness to address their other concerns. Here, the most that can
be said is that Keller offered to meet with employees after work hours to discuss the matter, and
hinted at a possible 10-hour bonus. Accordingly, the Respondent’s rather limited and vague
response to the employees’ insistence on knowing why they did not receive their bonuses, as
found above, only marginally favors the Respondent, as the employees did get to make their
grievance known to management.
Quietflex factor 6, relating to the duration of the work stoppage, favors finding the
employee protest to have been protected throughout its duration. The work stoppage, as noted,
lasted approximately 90 minutes, after which most employees, with the exception of DeJesus
who was arrested and Mercado Peralta who was escorted out of the facility, heeded Keller’s
directive to either return to work or leave the facility and peacefully ended the work stoppage
and returned to work. Work stoppages of similar, or even slighter longer, duration than the one
that occurred here have been found by the Board to be protected. Quietflex, supra at fn. 9,
citing to Golay & Co., 156 NLRB 1252 (1966); also, Molon Motor & Coil, 302 NLRB 138 (1991);
City Dodge Center, 289 NLRB 194 (1988). Again, with the exception of DeJesus and Mercado
Peralta, no kill floor department employee who took part in the work stoppage remained on the
premises beyond their regular shift,41 satisfying Quietflex factor 8, and weighing in favor of
finding the work stoppage protected.
On the question of whether there was a grievance procedure available for employees to
present their concerns to management (Quietflex factor 7), the employees here are not
represented by any union and, thus, not subject to any collective bargaining agreement
grievance procedure. The Respondent, however, maintains an employee handbook which
contains a “Grievance Procedure” through which employees can “discuss with [their] immediate

41 The Respondent appears to concede this point as it simply asserts on brief that the
employees remained in the premises only beyond the end of their first break. (RB:51).
JD-22-08
5
10
15
20
25
30
35
40
45
50
46
supervisor any complaint or grievance arising from your employment with the Company.” (RX-
22). If not resolved at that level, the employee may take the grievance to the next highest level
of supervision, and may also contact the Respondent’s personnel department “at any time for
advice or guidance about the process.”
Romaniello testified that employees are given a copy of the employee handbook when
they are first hired, sit through a slide show which explains the contents of the handbook, and
then engage in discussions with the “new employee administrator” during which she answers
any questions they may have. (Tr. 1172). Romaniello claims that the handbook’s grievance
procedure is used frequently, almost every day, by employees and supervisors alike to resolve
issues that arise. The Respondent’s attempt to introduce documentary evidence, to show the
extent to which the grievance procedure had been used in the past, was rejected after the
General Counsel objected to the introduction of such documents on grounds that said
documents had been subpoenaed by, and admittedly not turned over to, the Government.42
Thus, there is no evidence to substantiate Romaniello’s claim regarding the extent to which the
grievance procedure in the Employee Handbook is actually utilized by employees.43 In any
event, to the extent the Employee Handbook grievance procedure can be construed as a viable
method for individual employees to make their grievances known to the Respondent, there is
nothing in the wording of grievance procedure to suggest that it was intended to be used by
employees to resolve group complaints of the type that arose on December 15. See, HMY
Roomstores, Inc., 344 NLRB 963, at fn. 2 (2005). This particular factor, therefore, does not
militate against finding the work stoppage to have been protected.
As to Quietflex factor 9, there is no evidence that the employees involved in the work
stoppage seized, or as claimed by the Respondent on brief, attempted to seize, control of its
facility. Rather, the evidence here shows only that employees remained in specified areas of
the facility, e.g., the hallway and the cafeteria, as directed by Keller and the police, for a limited
duration (90 minutes) over a work-related matter, e.g., their Christmas bonuses. At no time did
the employees interfere with or prevent the Respondent from continuing to run its facility as it
saw fit. The Respondent produced no evidence to the contrary, or to show that employees of
other departments not involved in the work stoppage were prevented from coming and going as
they pleased. I find this factor supports finding the work stoppage to be protected.
Finally, regarding the last Quietflex, e.g., the reasons why the name discriminatees were

42 See, Bannon Mills, 146 NLRB 611 (1964).
43 Mercado Peralta apparently was aware of the existence of some grievance procedure but
testified that he never used it because the individual to whom one would take such a grievance
or complaint was Avila, whom he believed was married to Rivera. He explained that it made no
sense to him bring a complaint he might have against Rivera if he had to discuss it first with the
latter’s spouse, Avila. While the evidence does show that Rivera and Avila are living together, it
is not clear that they are husband and wife. Nevertheless, Mercado Peralta’s point was that he
was reluctant to use the grievance procedure established in the handbook because of the close
relationship between Avila and Rivera. (Tr. 182; 185). According to Olivo, the only grievance
handling procedure he was familiar with consisted of a “mailbox” type of bin where employees
could fill out a form setting forth their complaint and place it in the box. He explained this
procedure was instituted in 2004 by the Respondent, following a union’s organizational attempt,
because of the number of complaints it was receiving from employees. Olivo testified he never
used the “mailbox” because he had heard from others who presumably used it that their
grievances were never resolved. Olivo’s failure to mention the employee handbook’s grievance
procedure suggests he may have been unfamiliar with its existence. (Tr. 329-330).
JD-22-08
5
10
15
20
25
30
35
40
45
50
47
terminated, the Respondent’s contention is that these individuals were fired for alleged
misconduct during the course of the work stoppage, not for refusing to comply with Keller’s
directive to return to work or leave the facility. As fully discussed and found below, these five
named discriminatees did not engage in the misconduct for which the Respondent contends
they were discharged, and were fired solely for their protected conduct of participating and
taking an active role in the work stoppage. This factor, therefore, does not weigh in the
Respondent’s favor.
To summarize, the in-plant work stoppage engaged in here by the Respondent’s “kill
floor” employees on December 15, was at all times a relatively peaceful one devoid of violence,
threats, injury, destruction or damage to property, was focused exclusively and specifically on a
job-related complaint, e.g., the Respondent’s failure to distribute Christmas bonuses, caused no
disruption of work performed by employees who chose to continue working, and was ongoing
for reasonable period of time, e.g., 90 minutes. Accordingly, I find the in-plant work stoppage
was at all times a protected, concerted activity.
2. The Section 8(a)(1) discharges
(a) Garcia
The Respondent, on brief, contends that Garcia was lawfully discharged for “pushing” or
“touching” Avila during the hallway portion of the work stoppage. There is no disputing that
Garcia, along with the other named discriminatees, were discharged for conduct that occurred
during what, as found above, was a protected in-plant work stoppage. The analysis required for
determining if Garcia’s termination, and that of the other alleged discriminatees, was unlawful
was spelled out by the Supreme Court in NLRB v. Burnup & Sims, 379 U.S. 21 (1968).
In Burnup & Sims, the Court held that Section 8(a)(1) will be violated if it is shown that
the discharged employee was at the time engaged in a protected activity, that the employer
knew it was such, that the basis of the discharge was an alleged act of misconduct in the course
of that activity, and that the employee was not, in fact, guilty of that misconduct. Under the
Burnup & Sims analysis, the General Counsel bears the burden of showing the striking
employees were discharged for conduct that occurred during the strike or work stoppage. Once
this threshold is satisfied, the burden shifts to the employer to show that it had an honest belief
that the employees engaged in misconduct during the work stoppage that was serious in nature.
The severity of the misconduct required to justify the discharge has been defined by the Board
to be that which “under circumstances existing…reasonably tend to coerce or intimidate
employees in the exercise of rights protected under the Act.” Universal Truss, Inc. 348 NLRB
No. 41, slip op at 2 (2006), citing Clear Pine Mouldings, 268 NLRB 1044, 1046. If the
Respondent is able to do so, the burden then shifts back to the General Counsel to show, by a
preponderance of evidence, that the employee did not, in fact, engage in that misconduct, or
that the conduct was not serious enough for the employee to forfeit the protection of the Act. Id.
at 3; See, also Marshall Engineered Products Company, LLC, 351 NLRB No. 47 (2007); Pratt
Towers, 338 NLRB 61 (2002).
Applying the above principles to Garcia’s termination, I find Garcia’s discharge to have
been unlawful. As previously noted, the sole reason cited by the Respondent on brief, and by
Romaniello at the hearing, for terminating Garcia is that she either “pushed” or “touched” Avila
in the hallway as Olivo was about to be removed from the facility. Although the Respondent
argues that the work stoppage was rendered unprotected once Garcia and other employees
encircled Olivo to prevent his removal, I have, as previously discussed and found, rejected that
argument and concluded, based on the credible evidence of record, that this particular incident
JD-22-08
5
10
15
20
25
30
35
40
45
50
48
did not cause the work stoppage to lose its protection, and that the work stoppage was
protected throughout its 90-minute duration. The record makes clear, and the Respondent does
not deny, that Garcia took an active role in the work stoppage, speaking out at first during the
first cafeteria episode to Rivera by insisting that employees would not return to work until
management provided them with an explanation for not paying out the Christmas bonuses, and
again during the hallway episode by addressing her concerns to Keller and taking part in the
Olivo incident.
The first three Burnup & Sims criteria have clearly been met regarding Garcia’s
termination, for Garcia, with the Respondent’s full knowledge, took part in the protected work
stoppage, and was, according to the Respondent, terminated for conduct she allegedly engaged
in during that work stoppage. As to the last criteria, that too has been satisfied, for, as fully
discussed and found above, there is no credible evidence to show that Garcia ever “pushed” or
“touched” Avila in the hallway that morning. Having concluded that Garcia did not engage in the
misconduct for which she purportedly was terminated, her discharge was, under Burnup &
Sims, unlawful. A contrary finding would not be warranted even if I were to believe, and I do
not, that, in discharging Garcia, Romaniello did so based on a good faith but mistaken belief that
Garcia had indeed pushed Avila in the hallway, for the Supreme Court made clear in Burnup &
Sims that an employer's good faith is simply not relevant if the misconduct never occurred. See,
also, Shamrock Foods Company v. NLRB, 346 F.3d 1130, 1134 (D.C. Cir. 2003).
There are, in any event, good reasons for doubting any claim by the Respondent that it
discharged Garcia under a mistaken but good faith belief that she had engaged in the
misconduct in question. First, the termination decision, as noted, was made on the afternoon of
December 15, a few hours after the alleged incident occurred. At no time before that decision
was made was Garcia questioned about this incident, or given an opportunity to explain or
defend herself against, the accusation. Nor, as noted, did Romaniello interview any other
employee, or manager for that matter, who was present in the hallway and who might have
been able provide some corroboration on whether the incident did, or did not, occur. Rather,
Romaniello simply accepted, without inquiry or even a rudimentary investigation, Avila’s
representation that Garcia had either “pushed” or “touched” her in the hallway. The Board has
found the failure to conduct a meaningful investigation or to give the employee [who is the
subject of the investigation] an opportunity to explain to be clear indicia of discriminatory intent.
U.S. Recycling And Disposal, LLC, 351 NLRB No. 67 (2007); Bantek West, Inc., 344 NLRB 886,
895 (2005); West Maui Resort Partners, 340 NLRB 846, 848-849 (2003).
The Board has also held that an employer’s shifting explanations for action taken may
support an inference of pretext and an inference that the true reason was an unlawful one. Inter-
Disciplinary Advantage, Inc., 349 NLRB No. 49 (2007); Mt. Clemens General Hospital, 344
NLRB 450, 458 (2005). The Respondent here, as noted, claimed in its post-hearing brief, as did
Romaniello in her testimony, that Garcia was discharged solely for “pushing” or “touching” Avila
in the hallway. This, however, was not the position taken by the Respondent prior to the
hearing. Thus, in its pretrial position statement to the Board, the Respondent, in addition to
citing the pushing incident, claimed that Garcia was also terminated for being “loud and
disruptive while Keller and Rivera tried to talk to the workers,” and further averred therein that
Garcia and the other alleged discriminatees were “disciplined for their misconduct in connection
with the work stoppage” which included “their steadfast refusal to return to work when they were
told to leave the plant or return to work, …and their many actions to incite a riot and other
specific misconduct as described above.” (GCX-23, pp. 3 & 5).
In its answer to the complaint, the Respondent yet again cited “loudly trying to disrupt so
Keller and Rivera could not talk to co-workers,” engaging in “disruptive behavior (yelling,
JD-22-08
5
10
15
20
25
30
35
40
45
50
49
screaming, banging on lockers, standing on tables),” “creating a climate of violence,” “blocking
the movement of co-workers,” “keeping workers from working,” “taking over Moyer Packing’s
property,” and “refusing to leave or return to work,” as its reasons for discharging Garcia.
Further, on cross-examination, Rivera, apparently adhering to a “more is better” philosophy,
added yet another reason for Garcia’s discharge that was never raised or mentioned by
Romaniello in her testimony, or asserted by the Respondent in its brief. Thus, he asserted that
Garcia’s alleged conduct towards him at the onset of the work stoppage during the first cafeteria
episode, of “speaking loud” and “yelling” at him, was also a factor in Garcia’s termination
decision. Pressed further on this by the General Counsel, Rivera also suggested that Garcia’s
“disruptive” conduct in the hallway may also have been a factor in her termination. (Tr. 875-
876).
The above shifting and changing reasons proffered by the Respondent at various points
in this proceeding for discharging Garcia, along with the Respondent’s failure to conduct any
inquiry into what, if anything, may have transpired in the hallway between Garcia and Avila, and
its failure to allow Garcia an opportunity to respond to Avila’s accusation before deciding to
terminate Garcia, reasonably leads me to conclude that the “pushing” or “touching” explanation
for the termination is nothing more than a pretext. I find, instead, that Garcia was
discriminatorily discharged solely for her involvement in the work stoppage, in violation of
Section 8(a)(1) of the Act.
(b) Guzman
The record evidence, including testimony by Respondent’s own witnesses, makes clear
that Guzman took part in the work stoppage in the hallway and in the cafeteria, and that the
Respondent was fully aware of his involvement. Indeed, the reason proffered by the
Respondent in its brief, and by Romaniello at the hearing, for terminating Guzman, to wit,
threatening Rivera by pointing his finger directly in the latter’s face and yelling to the crowd in
the cafeteria, “This is the reason for our problem,” leaves no doubt that the Respondent knew of
Guzman’s participation in the work stoppage. What is in doubt, however, is whether the
Respondent had a good faith belief, when it discharged Guzman, that the latter had in fact
threatened Rivera. I find that it did not.
First, the credited evidence makes clear that the conduct for which the Respondent
contends it discharged Guzman did not occur as described in its brief, or as testified to by
Romaniello. Guzman, as found above, never got close to Rivera during their brief encounter,
but rather stood some six feet away when he purportedly make the remark attributed to him by
Romaniello, and, moreover, did not, as further found, point his finger in Rivera’s face. As to the
remark attributed to Guzman by the Respondent, e.g., that Rivera was “the reason for our
problem,” this too did not occur, for Rivera’s own testimony makes clear that what he thought he
heard Guzman say was, “this is our true enemy.” As found above, Guzman never made any
such remark to Rivera, but rather repeated to Rivera what he had just said to Olivo and
presumably others around him, to wit, that the Respondent was treating employees like
enemies.
Romaniello, on whose testimony the Respondent relies, as noted, claimed she
discharged Guzman, inter alia, for telling Rivera during this brief encounter that he, Rivera, was
“the reason for our problem.”44 Notably, Romaniello never explain how she came to attribute

44 In her memo attached to Guzman’s termination report, Romaniello placed the remark
attributed to Guzman in quotes, reflecting her understanding that the phrase, “the reason for our
Continued
JD-22-08
5
10
15
20
25
30
35
40
45
50
50
this particular remark to Guzman. Clearly, it could not have come from Rivera for the latter, as
stated, testified, albeit mistakenly, that Guzman’s actual words were, “this is our true enemy.”
Nor could she have gotten it from Boyrie, whose testimony, although discredited, is in line with
what Rivera contends was said to him by Guzman, and because Romaniello never bothered to
speak with or interview Boyrie as to what she may have heard or seen before deciding to
discharge Guzman. It is patently clear, therefore, that Guzman could not have been discharged
for accusing Rivera of being the “reason for our problem” at the facility, as asserted by
Romaniello in her testimony, and as argued by the Respondent on brief, for there is no credible
evidence that Guzman ever made any such remark. As to the “this is our enemy” remark
erroneously attributed to Guzman by Rivera, this comment too was, as found above, never
made by Guzman.
Nor, as further found, is there any credible evidence to indicate that Guzman, either in
words or deeds, threatened or acted in an aggressive or belligerent manner towards Rivera
when he, at Rivera’s request, repeated what he had just told Olivo about how the Respondent
was treating its employees like enemies. Finally, I accept Guzman’s assertion, corroborated
somewhat by Abreu, that Romaniello simply told Guzman, through Abreu, that he was being
discharged for the comment he made to Rivera earlier that day, without explaining what the
comment was. In this regard, I further find that Guzman did not, as claimed by Romaniello,
admit to making the remark attributed to him by Romaniello, for, as noted, he was never told
what that remark was. Although Guzman admits offering an apology, his testimony makes clear
that he was apologizing only if his remark about the Respondent treating its employees like
enemies had offended anyone. He was not, I am convinced, apologizing for having accused
Rivera of being “the reason for our problem” for, as found above, he never uttered the
statement, and, moreover, was never told by Romaniello during the discharge meeting what he
was alleged to have said to Rivera.
As with Garcia’s discharge, even if Romaniello honestly believed that Guzman had
accused Rivera of being the reason for the employees’ problems, her good faith belief would
nevertheless not have justified Guzman’s termination since, as found above, Guzman never
made the above alleged threat.45 Accordingly, consistent with the holding in Burnup & Sims,
Guzman’s discharge for conduct which did not occur during his participation in a lawful and
protected work stoppage was unlawful.
There are, in any event, sound reasons for believing that Guzman’s discharge was
motivated not by a good faith belief that he threatened Rivera during the work stoppage, but for
some other unstated reason. As noted, Romaniello, by her own admission, never interviewed
or questioned Guzman, or, for that matter, any other individual who may have witnessed the
incident, including Boyrie, before making her decision to terminate Guzman. The only person
she purportedly spoke to about this incident was Rivera. However, Rivera did not corroborate
_________________________
problem,” were Guzman’s actual words and not just her general understanding of what Guzman
purportedly may have said.
45 Nor would a different result be warranted even if I were to believe, which I do not, that
Guzman may have referred to Rivera as the employees’ enemy, as claimed by the latter, or as
the “real reason for the employees’ problems, as claimed by Romaniello. The Board has held
that an employee does necessarily not lose the Act’s protection if, while engaged in protected
concerted activity, he engages in conduct that might be deemed abrupt or disrespectful,
regardless of the inaccuracy of an employee's comments or their lack of merit or even his usage
of foul language or epithets directed toward a member of management. Hacienda Hotel, Inc.
348 NLRB No. 49, slip op at 17 (2006).
JD-22-08
5
10
15
20
25
30
35
40
45
50
51
Romaniello’s claim as to what Guzman allegedly said to him, leading me to question whether
Romaniello ever spoke to Rivera at all about the incident. Romaniello’s failure to conduct a
meaningful investigation of this incident, or to allow Guzman an opportunity explain or give his
side of what may have occurred between him and Rivera that morning, undermines any
suggestion that the discharge was done in good faith, and, instead, supports an inference that
the reason given is nothing more than a pretext designed to hide another reason the
Respondent prefers to conceal.
The pretextual nature of the discharge is further buttressed by the fact that, as with
Garcia, the Respondent proffered other explanations from those listed by Romaniello, the
alleged decision-maker, as grounds for the termination. According to Romaniello, her decision
to discharge Guzman was based solely on the above-described incident involving Rivera, “and
nothing else.” (Tr. 1204). Yet, in its answer to the complaint, and in its July 23, pretrial position
statement, the Respondent averred that Guzman was also discharged for, inter alia, “banging
on lockers, standing on tables,” “blocking the movement of co-workers,” “taking over
Respondent’s property,” “refusing to leave or return to work,” “preventing management
representatives from talking to co-workers,” “blocking locker room corridor ingress/egress,”
“chanting to coerce workers not to return to work,” “insubordinately repeating the Rivera threat
after being told by Rivera to stop,”46 and “threateningly forcing his way through a crowd of
workers.” As stated, an employer’s proffer of shifting or changing explanations for disciplining or
terminating an employee supports an inference that the true reason for the action taken is one
which the employer seeks to conceal. Id. Accordingly, for all of the above-stated reasons, I find
that Guzman was unlawfully terminated for his involvement in, not for any alleged misconduct
during, the protected work stoppage, in violation of Section 8(a)(1) of the Act.
(c) Mercado Peralta
Mercado Peralta’s discharge was, I find, also unlawful under Burnup & Sims, supra.
Mercado Peralta, according to the Respondent, was discharged for alleged misconduct in the
cafeteria during the course of the work stoppage. Specifically, as testified to by Romaniello,
Mercado Peralta was terminated for refusing to listen to Rivera in the cafeteria, and for pushing
away from Rivera, resisting the police, and “busting” through a crowd of employees to get
through some double doors employees were instructed not to go through. The above assertion
by Romaniello, along with other evidence of record, thus satisfies the first two Burnup & Sims
criteria: Mercado Peralta’s participation in the work stoppage and Respondent’s knowledge of
his activities. On the question of whether Respondent’s discharge of Mercado Peralta was
based on an honest belief that he engaged in the alleged misconduct, the Respondent, I find,
has not sustained its burden.
Thus, Romaniello’s explanation for discharging Mercado Peralta simply does not
withstand scrutiny. As found above, the conduct on which she purportedly relied to terminate
Mercado Peralta did not occur as described by her. That Mercado Peralta spoke with Rivera in
the cafeteria and was eventually removed from the facility is not disputed. However, testimony

46 This particular claim, that Guzman kept repeating the remark he purportedly made to
Rivera after being ordered by Rivera to stop, is contradicted by Rivera’s own testimony for,
according to Rivera’s account, he specifically asked Guzman to repeat what he had just said
and Guzman, in fact, did not do so and simply walked away. Rivera, as noted, admitted that
Guzman made the remark only once and did not repeat it. Thus, his own testimony undercuts
and renders specious Respondent’s asserted claim in its answer that Guzman continued to
repeat his remark after being ordered by Rivera to stop.
JD-22-08
5
10
15
20
25
30
35
40
45
50
52
provided by two of Respondent’s own witnesses, as well as by the more credible, unbiased,
nonpartisan witness, Kranich, makes clear that Mercado Peralta did not engage in the conduct
described by Romaniello. Bednar, as noted, observed Mercado Peralta trying to return to work
but prevented him from doing so because he recognized him as one of the principal agitators of
the work stoppage. He made no mention in his testimony of Mercado Peralta trying to “bust”
through the crowd of employees to get to work. Rivera, somewhat contradicting Bednar’s
account, claims he came over and put his arm around Mercado Peralta to speak with him
because the latter appeared to be ignoring Keller’s directive for employees to either leave the
facility or return to work. Bednar, as pointed out, claimed, contrary to Rivera, that Mercado
Peralta was in fact heading towards the production floor when stopped by him. However, like
Bednar, Rivera made no mention in his testimony of Mercado Peralta refusing to hear him out or
getting away from Rivera and “busting” through the crowd of employees in an effort to return to
work, as claimed by Romaniello. Finally, Kranich credibly testified that he escorted Mercado
Peralta out of the cafeteria after being directed by Lee to do so because the latter considered
Mercado Peralta one of “instigators to the incident,” who “had started the entire uprising of
employees originally, [and] was one of the advocates of getting everybody together.” Kranich,
like Bednar and Rivera, made no mention of seeing Mercado Peralta “resisting” Rivera or the
police, or attempting to “bust” through a crowd of employees in order to get to work. Mercado
Peralta, he pointed out, was never handcuffed or arrested.
Thus, although Romaniello claims she was standing only five feet away from Rivera and
witnessed Mercado Peralta’s behavior towards Rivera and his subsequent conduct of “busting”
through a crowd of employees, neither Rivera, Bednar, nor Kranich, all of whom testified to
having been involved in one form or another with this particular incident involving Mercado
Peralta, provided any corroboration for Romaniello’s version of events. This lack of
corroboration, together with her overall lack of credibility on other matters, and her poor
testimonial demeanor, convinces me that, as previously found, the conduct for which
Romaniello asserts she discharged Mercado Peralta never occurred. Rather, Romaniello’s
account strikes me as nothing more than a fabrication and a pretext.
As with the Garcia and Guzman terminations, there are good reasons for finding the
explanation proffered for Mercado Peralta’s termination to be nothing more than a pretext. The
Respondent, as it did with Garcia and Guzman, has not provided a consistent explanation for
terminating Mercado Peralta. Thus, while Romaniello explained that Mercado Peralta’s
discharge was based solely on the above-described specific behavior towards Rivera in the
cafeteria, e.g., refusing to listen to Rivera in the cafeteria, pushing away from Rivera, resisting
the police, and “busting” through a crowd of employees to get through some double doors, the
Respondent, in its February 20, prehearing position statement and answer to the complaint,
cited additional grounds for his termination not mentioned by Romaniello. In its position
statement, for example, the Respondent claimed that it had discharged Mercado Peralta (as
well as the other named discriminatees) because he “acted to incite a riot, engaged in conduct
threatening physical harm to certain management representatives, acted to undercut the
authority of the management representatives, kept management representatives from talking to
co-workers, and engaged in actions that provoked workers just as management representatives
were making progress to get the situation under control.” (GCX-23, p. 6).47
In its answer to the complaint, the Respondent cites other factors as having played a

47 The Respondent also cited these same reasons for Mercado Peralta’s discharge in a
statement submitted to the Board on July 23, opposing the General Counsel’s request for
injunctive relief. (See, GCX-24, p. 8).
JD-22-08
5
10
15
20
25
30
35
40
45
50
53
role in Mercado Peralta’s discharge. (GCX-1[h]). For example, it generally averred that
Mercado Peralta, as well as the other named discriminatees, were discharged for their
disruptive behavior during the work stoppage, including yelling, screaming, banging on lockers,
standing on tables, exhibiting threatening and insubordinate behavior toward particular
management personnel; creating a climate of violence; blocking the movement of co-workers
thereby keeping them from working; taking over Company property; refusing to leave or return
to work; preventing management representatives from talking to co-workers; and acting to incite
a riot. As to Mercado Peralta’s specific misconduct, it averred that he engaged in “angry and
disruptive yelling and screaming;” “getting in Keller’s and Rivera’s face;” “attempting to prevent
Keller and Rivera from communicating with the workers;” “blocking locker room corridor
ingress/egress;” “repeatedly trying to keep Keller and Rivera from regaining control of the
situation;” “chanting to coerce workers not to return to work;” “standing on cafeteria tables;”
“threatening HR representative Abreu;” “violating police-imposed security lines and directives;”
“conduct leading to his arrest by the police;” and “threatening Keller by saying, ‘You do not know
me. You don’t know what I can do.”
As noted, Romaniello, the purported decision maker, cited only Mercado Peralta’s
alleged refusal to listen to Rivera, and his alleged conduct of moving away from Rivera and
trying to “bust” through a crowd of employees into the hallway leading to the production area, as
the reason for the termination. Her failure to cite the additional reasons earlier proffered by the
Respondent to the Board is, I find, an implicit acknowledgement that these additional reasons
cited by the Respondent in its prehearing position statement and in its answer to the complaint
played no role in Mercado Peralta’s termination.48 These varying, shifting, and at times false,
explanations proffered by the Respondent prior to and at the hearing convinces me that they are
nothing more than pretexts and that the real reason for the Mercado Peralta’s discharge is one
which the Respondent prefers to conceal. Inter-Disciplinary Advantage, Inc., supra.
The true reason for Mercado Peralta’s discharge was nevertheless made quite apparent
when Lee told officer Kranich that Mercado Peralta should be removed from the facility because
the latter had one been of the instigators who “had started the entire uprising of employees
originally, [and] was one of the advocates of getting everybody together.” Lee’s statement to
Kranich, which was not challenged by Lee as he did not testify,49 and which I have credited,
makes patently clear it was Mercado Peralta’s role in, and involvement with, the protected work
stoppage, not any alleged misconduct on his part, that led to his eviction from the facility and to

48 There is little or no credible evidence to support many of the discharge reasons cited by
the Respondent in its February 20, position statement or in its answer. For example, Mercado
Peralta was never arrested, nor did he ever threaten Abreu, for Abreu readily admitted that
while Mercado Peralta may have been disrespectful, he never threatened her. (Tr. 1068).
Further, the claim that Mercado Peralta stood on a cafeteria table and yelled at management
was, as found above, not credibly established. As noted, Kranich’s description of Mercado
Peralta as simply standing around not doing anything undermines the claim that he had been
disruptive in the cafeteria. Nor was any credible evidence produced to show that Mercado
Peralta followed DeJesus into a restricted area, got into a police officer’s face, or pushed a
police officer. Finally, the assertion in Respondent’s answer, that Mercado Peralta threatened
Keller by saying, “You do not know me. You don’t know what I can do,” is patently false. Keller
himself, as well as Rivera, both attributed this remark solely to Medina, the gold-helmeted
employee, and never accused Mercado Peralta of making this remark. (Tr. 738; 814-815).
49 The Respondent’s failure to call Lee to refute or dispute Kranich’s rather revealing and
damaging testimony to its case warrants an adverse inference that Lee’s testimony, had he
been called to testify, would not have been favorable to the Respondent.
JD-22-08
5
10
15
20
25
30
35
40
45
50
54
his subsequent discharge. Having found that the sole reason for Mercado Peralta’s discharge
was his participation in, and involvement with, the protected work stoppage, I find the discharge
to have been unlawful, and a violation of Section 8(a)(1) of the Act, as alleged. Industrial Hard
Chrome, Ltd., 352 NLRB No. 47, slip op. 24 (2008); Benesight, Inc., 337 NLRB 282, 283
(2001).
(d) Olivo
Regarding Olivo’s discharge, the record makes clear that Olivo also took an active role
in the work stoppage by voicing his concerns to Keller about the bonus in the hallway, that
Keller and other managers were fully aware of his involvement therein, and that he was
discharged allegedly for engaging in misconduct during the course of the work stoppage.
Specifically, the misconduct in question consisted of being “disruptive” in the hallway by
“screaming and yelling over Keller so loudly that no one could hear him, inciting others to
scream and yell, and by continuing to react that way in a very volatile situation.” (RB: 23; Tr.
1145). While claiming that the work stoppage became unprotected when employees encircled
Olivo to prevent his removal by Bednar, a claim I have rejected based on the credible evidence
of record, the Respondent has not denied knowing of Olivo’s participation and involvement in
the work stoppage, or that his termination resulted from conduct that occurred during the
hallway portion of the work stoppage. The General Counsel’s initial burden under Burnup &
Sims has, consequently, been met here with respect to Olivo’s discharge.
The Respondent points to the testimony of Keller, Rivera, Collazo, and Roman to
support its claim that Olivo’s discharge was based on a good faith belief that Olivo had engaged
in the above-described misconduct. However, of these four, only Roman, in my view, provided
a more reliable and candid assessment of what transpired in the hallway on the morning of
December 15. Roman, as noted, described all employees in the hallway as being “excited” and
“loud” as they expressed their concerns to Keller and Rivera, and specifically identified Olivo,
along with Mercado Peralta and DeJesus, as the ones who primarily engaged in exchanges with
Keller regarding the bonuses. According to Roman, all employees were talking as loud as, if not
slightly louder than, Keller. However, she never testified to seeing Olivo “scream” or “yell” over
Keller, or trying to incite others to scream or yell at Keller. Her testimony reflects only that she
observed Mercado Peralta, DeJesus, and Olivo talking to Keller, and made no mention of
seeing any of any of these three engaged in the type of “disruptive” behavior described by
Keller, Rivera, and Collazo. In fact, Roman identified only DeJesus, not Olivo, as the one who
was “talking loud” to Keller, but again never described seeing him scream, yell, or shout at
Keller. (Tr. 1020). It is worth noting that in the report allegedly prepared by Lee regarding the
December 15, events, Lee stated that Olivo was asked to be removed from the hallway after
“addressing a comment” to Keller. Lee’s report makes no mention of Olivo having screamed,
shouted, or yelled at Keller. The mere act of addressing a comment to Keller, as described in
the Lee report, can hardly be equated, or viewed as synonymous, with yelling, screaming, or
shouting, or inciting others to riot.
Roman’s observations regarding the events and the conduct of the alleged
discriminatees, including Olivo, in the hallway are more in line with the descriptive and credible
accounts provided by Cruz, Villar, and Hernandez. Thus all three described the situation in the
hallway as noisy and loud, but testified that at no time did any of the employees, including Olivo,
display any disrespect towards Keller or the other managers, or become abusive or use
profanity towards them. More importantly, none claimed to have seen Olivo, or indeed any of
the alleged discriminatees, scream, shout, or yell at Keller or Rivera. As noted, all three were
still employed by the Respondent when they gave testimony that clearly was contrary to their
employer’s interest and, by implication, their own self-interest, thus enhancing the reliability and
JD-22-08
5
10
15
20
25
30
35
40
45
50
55
trustworthiness of their testimony.
By contrast, Keller, Rivera, and Collazo were, as previously discussed and found, not
very reliable or credible. All three, for example, either embellished, exaggerated, or fabricated
their testimony at one point or another to suit the Respondent’s theory of the case. Keller’s and
Rivera’s assertion, for example, of being unable to hear or understand what the alleged
discriminatees were saying to them in the hallway, despite claiming to have stood only inches
away from them, was, as noted, neither plausible nor credible, particularly given the contrary
testimony of other witnesses, including Roman, who stood further away and had no difficulty
hearing either what the employees or Keller was saying. Keller also was not candid in
recounting what Rivera told him had been said or occurred between River and employees in the
cafeteria, or who first alerted him about the work stoppage. Collazo, for his part, lied about
seeing all of the alleged discriminatees standing on cafeteria tables. Further, Collazo’s conduct,
as more fully discussed and found below, in unlawfully interfering with Hernandez’ right to
appear and testify at the hearing, and then threatening him with reprisal if he did so, revealed
his pro-Respondent bias in the matter and rendered his entire testimony suspect and unreliable.
On whole, I am convinced, and so find, that while Olivo may have spoken loudly in the
hallway in his discussions with Keller and Rivera, he never screamed, yelled, or shouted at
either of them, or attempted to prevent them from addressing other employees in the hallway.
Rather, I find it more likely than not that while Olivo may have raised his voice in order to be
heard over the voices of the almost 100 employees who were gathered there, Olivo was never
disrespectful to Keller or any other manager who was present. Thus, I find that the General
Counsel has demonstrated that Olivo never engaged in the type of “disruptive” behavior for
which the Respondent contends he was discharged, and that in voicing his concerns and that of
other employees to Keller in a somewhat loud and possibly excited manner, Olivo did not
exceed the protective boundaries of Section 7. In this regard, no evidence was produced to
show that Olivo used threatening or abusive language or gestures towards Keller, Rivera, or any
other manager or employee while expressing his views regarding the bonuses. Nor has the
Respondent made any such claim, for it asserts only that Olivo engaged in disruptive conduct
by “screaming and yelling over Keller so loudly that no one could hear him, and inciting others to
scream and yell and continue to react that way in a very volatile situation,” an assertion that, as
found above, was not substantiated or proven through credible evidence. In these
circumstances, Olivo’s conduct in the hallway was not so egregious as to have caused him to
lose the Act’s protection. His discharge for his involvement in the protected work stoppage was,
therefore, unlawful and a violation of Section 8(a)(1) of the Act.
(e) DeJesus
The reasons cited by Respondent for DeJesus’ discharge are essentially the same as
those proffered for Olivo’s discharge, except that DeJesus’ alleged banging on lockers in the
hallway, and his arrest in the cafeteria, are cited as also having been factors in his termination.
Thus, the Respondent contends on brief, as did Romaniello in her testimony, that DeJesus was
discharged for “creating an unsafe environment,” specifically, by “yelling, screaming and
banging on lockers, and for his aggressive behavior in inciting a riot,” and for being arrested
during the work stoppage. (RB:21; Tr. 1203).
As it did with Olivo’s discharge, the Respondent relies on the testimony of Keller, Rivera,
and Collazo, in addition to testimony provided by Lawless, Roman, and Navarro, to support its
claim that DeJesus’ discharge was based on a good faith belief that the latter had engaged in
the above-described misconduct during the work stoppage. For the reasons previously
discussed with respect to Olivo’s discharge, I place no credence in Keller’s, Rivera’s, or
JD-22-08
5
10
15
20
25
30
35
40
45
50
56
Collazo’s account of what transpired in the hallway, as their description of the employees’
overall conduct and behavior in the hallway, including that of DeJesus and the other named
discriminatees, was, I am convinced, grossly exaggerated and embellished.
Of the remaining three witnesses relied on by the Respondent -- Lawless, Roman, and
Navarro -- only Roman offered a more reliable, honest, and credible appraisal of what occurred
in the hallway. Roman, as previously pointed out in connection with Olivo’s termination, did
hear DeJesus and the other discriminatees speaking loudly in the hallway, DeJesus more so
than the others, but never claimed to have heard or seen the latter scream or yell at Keller or
any other manager, provoke other employees to engage in such conduct, or prevent Keller from
speaking to employees. Keller, she credibly explained, was able to speak out to employees and
to be heard over the noise of the crowd, and over the loud talking by DeJesus and the other
discriminatees.
Lawless, like Roman, did identify DeJesus as being “probably the loudest” of the named
discriminatees, and testified that the latter was “shouting down” Keller, was “the center of
attention in the hallway,” and the one “we were watching the closest.” (Tr. 930). However, in an
incident report prepared by Lawless three days later, on December 18, at Bednar’s request,
setting forth his recollection of what occurred in the hallway, Lawless never identified, much less
mentioned, DeJesus as having engaged in any of the conduct he described in his testimony.
(RX-11). In fact, in his report, Lawless identified and singled out only Mercado Peralta, not
DeJesus or any of the other named discriminatees, as the one who “was acting as an instigator,
shouting down Mr. Keller and Mr. Rivera.” He also claimed in his report to have seen the crowd
of employees in the hallway, “lead by [Mercado Peralta], surge forward and begin to shove and
grab for [Keller] and Bednar.” At the hearing, however, Lawless testified that while the crowd
may have been physically pushing towards the center where Keller and Rivera stood, there was
no “shoving,” and, more importantly, never mentioned anything about Mercado Peralta,
DeJesus, or any other employees in the crowd attempting grab Keller or Rivera. The
inconsistencies in his testimony at the hearing vis-à-vis statements contained in his December
18, incident report render his testimony regarding DeJesus’ conduct in the hallway unreliable
and not credible.
Navarro claims that, while in the hallway, she, DeJesus, Mercado Peralta, Keller and
Rivera were all standing “together,” and that she heard employees screaming as Keller tried to
calm them down. She contends that DeJesus and Mercado Peralta did not let Keller speak.
Although claiming to have been standing right next to Keller, Rivera, DeJesus, and Mercado
Peralta while this was going on, Navarro nevertheless testified that she was unable to hear what
DeJesus or Keller were saying in the hallway. Her testimony, that she was unable to hear what
DeJesus or Keller was saying despite being only inches from them, is, like the similar claims
made by Keller and Rivera, simply not credible, and inconsistent with Roman’s more credible
account of being able to hear and understand what the alleged discriminatees were saying to
Keller, and vice versa. Navarro, as previously discussed and found, had a propensity to
exaggerate or embellish her testimony, as when she claimed to have seen DeJesus and
Mercado Peralta during the first cafeteria episode, when the credible evidence of record, and
the Respondent’s own admission, make clear neither of these alleged discriminatees was
present when the work stoppage first began. Accordingly, I place no credence in Navarro’s
claim that DeJesus screamed, yelled, or shouted at Keller to prevent him from speaking with
employees in the hallway. Moreover, Navarro, it should be noted, never testified to seeing
DeJesus act in an aggressive or threatening manner towards Keller, Rivera, or employees in
general, or of trying to provoke employees into rioting.
As to Respondent’s assertion that DeJesus was banging on lockers in the hallway, that
JD-22-08
5
10
15
20
25
30
35
40
45
50
57
too lacks credible evidentiary support. Although Keller and Rivera both claimed to have seen
DeJesus banging on lockers, their propensity to exaggerate and embellish the events of that
day, their rather lackluster demeanor on the witness stand, and the lack of corroboration by
some of their own witnesses, renders their claim of having seen DeJesus banging on lockers
highly suspect. Lawless, for example, testified to hearing employees “sort of behind” him
banging on lockers, but never named or identified DeJesus as being one of them. Nor did
Roman, Navarro, or Collazo mention in their testimony seeing or hearing DeJesus, or for that
matter any other employee, bang on lockers in the hallway. Moreover, other witnesses who
were present in the hallway that morning testified in similar fashion. Thus, Bednar, Avila, and
Boyrie, all of whom testified for the Respondent, claimed to have heard banging on lockers in
the hallway. However, like Lawless, none of these individuals testified to seeing or hearing
DeJesus engage in such conduct that morning. Similarly, General Counsel witness Villar
denied seeing DeJesus bang on lockers in the hallway, and Hernandez, also a General Counsel
witness, testified he did not specifically see DeJesus bang on any lockers, but added that he
just didn’t know. While I do not doubt that some banging of lockers occurred during the hallway
episode, the Respondent, I find, has produced no credible evidence to support its claim that
DeJesus took part in that activity.
Like the above-described reasons cited by the Respondent for DeJesus’ discharge, the
remaining reason, his arrest, likewise does not withstand scrutiny and appears to be nothing
more than a pretext. It is not disputed, and the record makes perfectly clear, that DeJesus was
removed from cafeteria by the police in handcuffs, arrested, and issued a non-traffic citation.
What is not clear, however, is precisely why he was arrested, or what the Respondent knew to
be the reason for his arrest.
As to why he was arrested, Ciarlello’s testimony, as previously discussed, suggests that
he chose to arrest DeJesus for failing to follow his instructions to leave the cafeteria either by
exiting the facility or returning to work. Ciarlello, as noted, did not detain or arrest DeJesus
when he first observed him urging employees to remain in the cafeteria, but simply instructed
him to cease doing so and to leave the facility or return to work. It was when Ciarlello noticed
DeJesus returning to the cafeteria, after seeing him heading towards the hallway and the
production area, that he took steps to detain DeJesus. As noted, Ciarlello never asked
DeJesus, before deciding to detain him, why he was returning to the cafeteria; rather, on seeing
him re-enter the cafeteria he immediately ordered DeJesus to stop and told him he needed to
go outside. It is unlikely DeJesus would have understood what Ciarlello was saying to him for
Ciarlello, as noted, does not speak or understand Spanish, DeJesus’ primary language, and
there is likewise no evidence to suggest that DeJesus understood or spoke English. The fact
that Abreu was asked to interpret for DeJesus while he was being interviewed by the police
supports such an inference. According to Ciarlello, it was when DeJesus continued walking that
he grabbed DeJesus by the arm, apparently prompting DeJesus to react by trying to pull away
and offering some minor resistance to being detained.
Ciarlello admitted not knowing what DeJesus was up to just before he detained him, and
nothing in his testimony suggests that he bothered to ask DeJesus, either directly or via an
interpreter, why he was returning to the cafeteria. (Tr. 416). Nothing in Ciarlello’s description of
what occurred as DeJesus was returning to the cafeteria suggests that DeJesus was at the time
being loud, or acting in rowdy or in a disruptive manner, so as to give Ciarlello concern that
DeJesus’ intent in returning was to resume his earlier attempts to convince employees to remain
in the cafeteria and continue the work stoppage. As noted, according to Olivo’s credited
account of what DeJesus said to him, the only reason the latter re-entered the cafeteria was
simply to get a drink of water. Although Ciarlello claims that DeJesus was yelling to, and trying
to communicate with, employees as he was being escorted out, he conceded that DeJesus did
JD-22-08
5
10
15
20
25
30
35
40
45
50
58
so in Spanish. As he spoke no Spanish, Ciarlello could not have known what DeJesus was
saying, and nothing in his testimony suggests that he questioned other employees to find out
what DeJesus was trying to communicate to employees. Again, DeJesus, for all Ciarlello knew,
might simply have been protesting his detention out loud, not attempting to stir up the
employees.
While Ciarlello’s undisputed account of what prompted him to arrest DeJesus is
accepted as true, I am nevertheless troubled by what seems to have been an uninformed snap
decision on his part to arrest DeJesus without first questioning the latter to see if he may have
had a legitimate reason for returning to the cafeteria in the first place. In this regard, there is
nothing in Ciarlello’s version of events to suggest that DeJesus may have said something to
provoke, anger, or that was disrespectful towards, Ciarlello, which may have prompted the latter
to initiate the arrest. Indeed, given the language barrier, it is doubtful Ciarlello would have
understood anything DeJesus may have said to him. While he was ultimately charged with
disorderly conduct, this particular offense could not have been related to his initial conduct in the
cafeteria of trying to convince employees to stay with the work stoppage since, by Ciarlello’s
own account, DeJesus stopped doing so after being instructed by Ciarlello to either leave the
facility or return to work. The arrest, again by Ciarlello’s own account, was prompted solely by
DeJesus’ decision to re-enter the cafeteria. However, A simple query to DeJesus, via an
interpreter such as Abreu, who would soon therafter be called upon by the police to help
communicate with DeJesus, would have revealed that DeJesus was simply trying to get a drink
of water, and possibly obviated any need by Ciarlello to arrest him. DeJesus was never given
an opportunity to explain, leading me to question whether there may have been some other
reason for his arrest.
However, regardless of whether or not DeJesus’ arrest was justified, several factors lead
me to conclude that the arrest was conveniently and opportunistically seized upon by the
Respondent to further justify its decision to terminate DeJesus, whom it viewed as one of the
principal agitators of the work stoppage, for his involvement and participation in the work
stoppage. (Tr. 774-775). First, as previously noted, it is unclear who made the decision to
terminate DeJesus, for Keller and Romaniello both claimed to have separately done so, the
former asserting he did so in conjunction with Daubenspeck during their 2 p.m. phone
conversation on December 15, the latter stating she made the “final call” either during or after
her meeting with Keller, Rivera, and Fisher which she then telephonically confirmed during a
subsequent phone conversation with Daubenspeck. This obvious discrepancy and
inconsistency in Keller’s and Romaniello’s testimony regarding DeJesus’ discharge could readily
have been resolved by Daubenspeck, since both claimed to have separately discussed their
respective decisions with him and gotten his approval. Despite Daubenspeck’s obvious
importance to the resolution of this glaring conflict in testimony, Daubenspeck was not called to
testify even though, from both Keller’s and Romaniello’s account, Daubenspeck apparently
played a role in the decision-making process. Daubenspeck’s failure to appear and testify leads
me to question whether he had any involvement at all in DeJesus’ termination, a fully
reasonable inference given the inconsistent and contrary explanations proffered by Keller and
Romaniello on how the decision to terminate DeJesus was made. The Respondent’s failure, in
any event, to call Daubenspeck to clarify or explain the inconsistencies regarding DeJesus’
termination decision, and his involvement, if any, in that decision, warrants an adverse inference
that, had he been called, Daubenspeck’s testimony would not have been favorable to the
Respondent.
Second, regardless of who made the decision to terminate DeJesus, both Keller and
Romaniello readily admit they never questioned or interviewed DeJesus about his arrest before
summarily discharging him, in part, for that arrest, as called for under the Respondent’s
JD-22-08
5
10
15
20
25
30
35
40
45
50
59
progressive disciplinary policy. The explanations proffered by Keller and Romaniello for not
doing so are neither convincing nor credible. Thus, Keller claimed he had no need to do so
because DeJesus’ conduct in the cafeteria which led to the arrest was “witnessed by several
individuals,” none of whom incidentally was identified by Keller at the trial. There is no question,
given the number of people in the cafeteria at the time, that the events that led Ciarlello to arrest
DeJesus must have been witnessed by numerous individuals who were present, including the
two most obvious witnesses, police officers Ciarlello and Kranich. Keller, however, never
claimed in his testimony to have spoken with any of these unidentified “several individuals,” or
for that matter with either Ciarlello or Kranich about the arrest, nor is there anything in Ciarlello’s
or Kranich’s testimony to suggest they discussed the incident with Keller or any other
management official, or that Keller or anyone else questioned them about it. The bare fact,
therefore, that the DeJesus incident and arrest may have been witnessed by “several
individuals” is of no help to the Respondent in trying to show that, in discharging DeJesus in part
for the arrest, Keller had a good faith belief that DeJesus had engaged in misconduct justifying
his arrest. Rather, as discussed above, it is quite clear from the record that Keller apparently
relied only on the fact that an arrest had occurred and never bothered to question DeJesus, the
arresting police officers, or anyone else to determine if the arrest was justified, or to ascertain
whether the conduct in question was serious enough to warrant DeJesus’ termination, as was,
according to Romaniello, its established past practice. Accordingly, assuming the truth of
Keller’s assertion that it was he who made the decision to terminate DeJesus, his failure to
question DeJesus about the circumstances of the arrest, as called for under Respondent’s
progressive disciplinary policy and its established past practice, or anyone else for that matter
who may have witnessed the events, including officers Ciarlello and Kranich, undermine any
claim by the Respondent that the decision to terminate DeJesus was based on a good faith and
honest belief by Keller that DeJesus had engaged in misconduct warranting his arrest. Rather,
the hasty manner in which the termination occurred, without any investigation by Keller in
contravention of established Company policy, supports a finding that the arrest was, as stated,
opportunistically seized upon by Keller as way of pretextually covering up a predetermined
decision to fire DeJesus, along with the other named discriminatees, for having “instigated” the
work stoppage.
Romaniello, who also takes credit for discharging DeJesus, offered a different, and
equally unsupportable, explanation for not interviewing DeJesus about the arrest before
purportedly making her decision. Her explanation, one incidentally not mentioned by Keller, is
that because of the seriousness, severity, and potential for violence of DeJesus’ overall
conduct, including presumably that which precipitated his arrest in the cafeteria, his immediate
discharge, without the standard interview called for under Respondent’s progressive disciplinary
policy or its established past practice, was fully justified. The flaw in Romaniello’s argument,
however, is that, prior to his arrest, DeJesus, as found above, had not engaged in any of the
alleged misconduct she claims occurred in the hallway. Thus, DeJesus did not yell, scream, or
shout at Keller, or otherwise prevent him from addressing other employees in the hallway, nor
did he engage in any other type of behavior that could be classified as disruptive, threatening,
abusive, or offensive. As also found above, no credible evidence was produced to show that
DeJesus banged on lockers, one of the reasons cited for his discharge. As to the arrest,
Romaniello claims only to have seen someone, presumably DeJesus although she never
actually said it was him, offering some resistance to the police and being led away. In her
testimony, Romaniello never claimed to know what precipitated the incident she observed.
Except for this one incident, Romaniello never testified to having seen DeJesus in the cafeteria
engaging in any type of misconduct, or behaving in an unruly and disruptive behavior.
As with Keller, there is nothing in Romaniello’s testimony, or elsewhere in the record for
that matter, to indicate that Romaniello interviewed, questioned, or discussed with, Ciarlello,
JD-22-08
5
10
15
20
25
30
35
40
45
50
60
Kranich, or any other person in the cafeteria that day, the events which led to DeJesus being
detained and arrested. Romaniello, therefore, could not have known how severe, serious, or
potentially violent, if at all, DeJesus’ pre-arrest conduct in the cafeteria had been when she
purportedly decided to fire him, in part, for that arrest. Romaniello’s failure to conduct even the
most rudimentary of inquiries into what occurred in the cafeteria with DeJesus undermines any
claim by the Respondent that DeJesus’ discharge was based on a good faith and honest belief
by Romaniello that DeJesus had, in part, engaged in serious, egregious, and potentially violent
behavior in the cafeteria. As with Keller, I find Romaniello’s stated reason for not adhering to
the Company’s progressive disciplinary policy or following its established past practice before
terminating DeJesus to be both specious and pretextual, designed to mask the real reason for
the termination, e.g., DeJesus’ active participation and involvement in the work stoppage or, as
Keller put it, for being one of its principal “agitators.” Accordingly, I find that DeJesus was
unlawfully discharged for engaging in protected concerted activity, in violation of Section 8(a)(1)
of the Act.50
3. Other Section 8(a)(1) conduct
The complaint, as amended at the hearing, further alleges that the Respondent, through
supervisor Collazo, unlawfully interfered with Hernandez’ Section 7 rights by advising him that
he did not have to comply with a Board subpoena. Hernandez, as noted, was subpoenaed to
testify and did so reluctantly. He testified that a few days before the hearing began, he informed
his then supervisor, Collazo, that he would not be reporting to work on Friday, August 10, as he
had been subpoenaed to testify that day. He contends that he tried to hand Collazo the
subpoena so he could look at it but the latter declined to take it. Instead, Collazo, he claims,
told him that his attendance was not mandatory, but Hernandez replied that it was. Collazo then
told him he would see about it as he did not have that many people available. Collazo claims
that a few days later, on Thursday, August 9, the day he actually testified, he again spoke with
Collazo that morning to inform him that his appearance at the hearing had been moved up and
he was scheduled to testify that same day. He testified that he had only been alerted the night
before by the General Counsel of the change in his appearance date. Collazo, he contends,
repeated that Hernandez’ attendance at the hearing was not mandatory, and told him that he
was not approving his absence and would receive two points for his absence. Hernandez
explained that when an employee accumulates four points, he or she receives a warning for
absences. (Tr. 509-512).
Collazo recalled speaking with Hernandez at the end of the day, on Wednesday, August
8, about needing time off in his office at the end of the day, and that Paul Geurts, a slaughter
analyst with the Respondent, was present at the time. He contends that Hernandez came to his
office to ask for Friday off, and that he told Hernandez he would have to check as he believed
he already had someone scheduled to be off that day. Hernandez, he claims, explained that he
had gotten a letter telling him he had to go. Collazo denied that the word “subpoena” was
mentioned during that conversation, and that he simply was going to check on it and get back to
him. Hernandez, he contends, came to him again on Thursday morning, August 9, while he
was at a supervisors’ meeting, and informed him he (Hernandez) had received a call and had to
leave right away. Hernandez, he claims, did not have any papers with him during this brief
meeting. He told Hernandez that if he left, he would not get paid for the day because he had

50 That Respondent intended to discharge DeJesus, and the other named discriminatees,
for “instigating” the work stoppage was made clear just one hour after the work stoppage ended,
when Rivera, as credibly testified to by Berios, remarked to the latter that “whoever started this
is going to get fired.”
JD-22-08
5
10
15
20
25
30
35
40
45
50
61
not requested the day off in advance. Collazo explained that the practice has been for
employees to request time off in advance, even when attending to court-related matters, to
ensure that there are no more than two people out on the same day. He did not recall anything
else being said by Hernandez at the time (Tr. 659-660).
Geurts testified he had a chance to speak with Hernandez when the latter came to ask
Collazo on Wednesday to ask for the day off. He recalls Hernandez and Collazo conversing in
Spanish only, and admits he speaks only English and neither speaks nor understands Spanish.
He claims that Collazo, at one point, told him that Hernandez had to go to court the next day,
and that he then asked Hernandez, in English, why he had to go to court. Geurts purportedly
then asked Hernandez why he had to go to court, and the latter replied he had to testify. Geurts
informed Hernandez that this would be an unexcused absence and he would not be paid for it.
He purportedly then asked Hernandez if “they” were going to pay him for it, and whether he had
received a subpoena. Hernandez purportedly answered, “No,” that it was just a letter “from the
lawyer.” Guerts reiterated that “if it’s not a subpoena, you shouldn’t have to go if you don’t want
to; and if you’re going to go, they should pay you your wages.” (Tr. 647-648). Hernandez, he
contends, did not ask him any questions, and simply stated, in Spanish, he was going to go
anyway. Guerts admits he did not understand what Hernandez said to him, and gathered this is
what Hernandez said based on what Collazo was saying to him. Hernandez admits he speaks
and understands very little English.
I place no credence in Guerts’ testimony. Thus, neither Collazo or Hernandez
corroborate any aspect of his testimony regarding his alleged discussion with Hernandez.
Collazo, for example, made no mention of Guerts taking part in his discussion with Hernandez
about needing time off to testify, and Hernandez never mentioned discussing the subpoena or
his need for time off with Guerts. I find Guerts simply fabricated his alleged exchange with
Hernandez that Wednesday to assist the Respondent in contesting this particular allegation.
As between Collazo and Hernandez, I credit the latter and find that Hernandez indeed
made clear to Collazo that he had been subpoenaed to testify, and, in fact, attempted to present
Collazo with the subpoena which Collazo refused to accept. As discussed earlier regarding
other aspects of his testimony, Collazo was not a particularly credible witness who was prone to
fabrication or exaggeration. Hernandez, on the other hand, came across as honest, sincere,
and trustworthy. His testimony, as previously discussed, is rendered particularly reliable given
that he was testifying against the Respondent while still in its employ, and thus against his own
self interest. Accordingly, I find that when Hernandez informed Collazo he had been
subpoenaed to testify, Collazo told him he did not have to comply with the subpoena, e.g., it
was not mandatory for him to testify, and that, if he chose not to work and to go to the hearing
instead, he would be disciplined by being issued two points, half the amount needed to receive
a formal warning.
The Board has held when an employer tells an employee that he or she does not have
to comply with a Board subpoena, and is free to decide whether or not to go to a Board hearing
in response to the commands of a Board subpoena, it engages in conduct which constitutes
unlawful interference with Section 7 rights and, as such, violates Section 8(a)(1) of the Act.
Amoco Fabrics Co., 260 NLRB 336 (1982); also, Winn-Dixie Stores, Inc. 128 NLRB 574, 586
(1960); Fitel/Lucent Technologies, Inc. supra at 54. Accordingly, I find that Collazo’s remarks to
Hernandez about not having to comply with the subpoena, and threatening to issue him two
points towards a warning if he did so, were coercive and violated Section 8(a)(1) of the Act, as
alleged.
JD-22-08
5
10
15
20
25
30
35
40
45
50
62
Conclusions of Law
1. The Respondent, Moyer Packing Co. is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The work stoppage engaged in by Respondent’s employees on December 15, 2006,
was at all times protected activity under Section 7 of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by:
(a) Discharging employees Geovanny Guzman, Maria Garcia, Maximo Franklin Mercado
Peralta, Jensy Olivo-Muñoz, and Armando Ortiz DeJesus for engaging in concerted protected
activity, specifically, their involvement in the protected in-plant work stoppage.
(b) Telling an employee he did not have to comply with a Board-issued subpoena and
threatening to discipline him if he did so.
4. The above-described unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged employees Geovanny Guzman,
Maria Garcia, Maximo Franklin Mercado Peralta, Jensy Olivo-Muñoz, and Armando Ortiz
DeJesus, it must offer them reinstatement and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987). It must also remove from its files any reference to the unlawful discharges of these
employees and notify them in writing within 3 days that it has done so, and that their discharges
will not be used against them in any way. Finally, the Respondent shall be ordered to post a
notice to employees in both English and in Spanish, as many of its employees apparently do not
understand or speak English.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended51

51 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.
JD-22-08
5
10
15
20
25
30
35
40
45
50
63
ORDER
The Respondent, Moyer Packing Company, Souderton, PA, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employees for participating in a
protected work stoppage or engaging in any other protected activity.
(b) Interfering, restraining, or coercing employees in the exercise of their Section 7
rights by telling them they do not have to comply with a Board-issued subpoena and threatening
to discipline them if they do so.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Geovanny Guzman, Maria Garcia,
Maximo Franklin Mercado Peralta, Jensy Olivo-Muñoz, and Armando Ortiz DeJesus
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
(b) Make Geovanny Guzman, Maria Garcia, Maximo Franklin Mercado Peralta, Jensy
Olivo-Muñoz, and Armando Ortiz DeJesus whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges, and within 3 days thereafter notify the employees in
writing that this has been done, and that the discharges will not be used against them in any
way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Souderton, PA,
copies of the attached notice marked “Appendix”52 in both English and Spanish. Copies of the
notice, on forms provided by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are

52 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.”
JD-22-08
5
10
15
20
25
30
35
40
45
50
64
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since December 15, 2006.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., May 22, 2008.
____________________
George Alemán
Administrative Law Judge
JD-22-08
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for participating
in a protected work stoppage, or any other protected concerted activity.
WE WILL NOT interfere with, restrain, or coerce you in the exercise of your Section 7
rights to testify in a Board proceeding by stating that you do not have to comply with a
National Labor Relations Board subpoena, and threatening to discipline you if you do
comply.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Geovanny Guzman, Maria
Garcia, Maximo Franklin Mercado Peralta, Jensy Olivo-Muñoz, and Armando Ortiz
DeJesus full reinstatement to their former jobs or, if those jobs no longer exists, to
substantially equivalent positions, without prejudice to their seniority or any other rights
or privileges they previously enjoyed.
WE WILL make Geovanny Guzman, Maria Garcia, Maximo Franklin Mercado Peralta,
Jensy Olivo-Muñoz, and Armando Ortiz DeJesus whole for any loss of earnings and
other benefits resulting from their discharge, less any net interim earnings, plus interest.
JD-22-08
WE WILL, within 14 days from the date of this Order, remove from our files any
reference to the unlawful discharges of Geovanny Guzman, Maria Garcia, Maximo
Franklin Mercado Peralta, Jensy Olivo-Muñoz, and Armando Ortiz DeJesus, and WE
WILL, within 3 days thereafter, notify each of them, in writing, that this has been done,
and that the discharges will not be used against them in any way.
MOYER PACKING COMPANY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’SCOMPLIANCE OFFICER, 215-597-7643.