Signature Flight Support

National Labor Relations Board - Board Decisions

May 2, 2001

333 N.L.R.B. 1250 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
Signature Flight Support and Judith Fumero. Case
12–CA–19431
May 2, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND WALSH
On October 6, 1999, Administrative Law Judge Kelt-
ner W. Locke issued the attached bench decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
The judge found that the Respondent violated Section
8(a)(1) of the Act by discharging employees Blanca Cin-
tron, Judith Fumero, and Carmen Reyes. In its excep-
tions, the Respondent argues, inter alia, that the dis-
charges of the three employees did not violate the Act
under the Wright Line standard.3 For the following rea-
sons, we find no merit in the Respondent’s exceptions.
In brief, the facts are as follows. In February 19984 the
Respondent’s human resources manager, Nilda Rios,
suggested to a group of employees identified as “leads”
that they put their work-related concerns in writing.5 The
leads’ letters in response complained about the conduct
of another group of employees identified as “cleaners.”
The leads’ letters focused on five or six cleaners, includ-
ing the three alleged discriminatees. The judge found
that the letters conveyed the clear impression that the
alleged discriminatees as a group were urging other em-
ployees to act collectively for their mutual aid and pro-
tection. The judge also found, however, that some of the
letters indicated that the alleged discriminatees had en-
gaged in activities that are clearly not protected by law,
for example, refusing to perform work.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify par. 2(e) of the recommended Order to conform to
the Board's decisions in Indian Hills Care Center, 321 NLRB 144
(1996), and Excel Containers, Inc., 325 NLRB 17 (1997). We shall
also modify the notice to conform to the recommended Order.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). We do not adopt the judge’s discussion in
fn. 2 of his decision of a Wright Line “presumption.”
4 All subsequent dates are in 1998.
5 As background, the record shows that in January employee Fumero
delivered a letter to the Respondent’s manager, Lester Wiggins, com-
plaining about working conditions, including harassment by leads.
Shortly thereafter, Wiggins spoke to the leads about the complaints and
told them that he would not tolerate harassment. The judge found, and
we agree, that while the January letter did not play any part in the Re-
spondent’s decision to discharge the three alleged discriminatees, the
letter did “set in a motion a chain of events which culminated in the
terminations.”
After receiving these letters in mid-March, and without
conducting any investigation, Rios recommended to her
superiors that Cintron, Fumero, and Reyes be discharged.
The judge found that higher management “rubber-
stamped” Rios’ recommendation. After receiving ap-
proval, Rios discharged Cintron on or about March 18,
and discharged Fumero and Reyes on or about March 20.
As the judge recognized, it is unlawful for an employer
to discharge employees in the belief that they engaged in
concerted activity for the purpose of mutual aid or pro-
tection. U.S. Service Industries, 314 NLRB 30, 31
(1994) (“Actions taken by an employer against an em-
ployee based on the employer’s belief the employee en-
gaged in or intended to engage in protected concerted
activity are unlawful”), enfd. mem. 80 F.3d 558 (D.C.
Cir. 1996).
Applying this principle here in the context of a Wright
Line analysis, we find that the General Counsel made a
showing sufficient to support the inference that the Re-
spondent’s belief that Cintron, Fumero, and Reyes en-
gaged in protected concerted activities was a motivating
factor in the Respondent’s decision to discharge them.
Thus, as found by the judge, the record clearly shows
that the Respondent relied on the leads’ letters in decid-
ing to discharge the three employees, and those letters
focused on the employees’ complaints about working
conditions and their appeals to other employees to join
them. The factor of timing also supports the inference of
unlawful motivation because the discharges occurred
immediately after the Respondent was placed on notice
of the employees’ protected concerted activities.
We further find that the Respondent has not met its
burden under Wright Line of demonstrating that it would
have discharged the three employees even in the absence
of its belief that they engaged in protected concerted ac-
tivities. Before the judge, the Respondent asserted that it
terminated the alleged discriminatees because they had
refused to work and therefore were insubordinate. The
Respondent relied on the references to the refusals to
perform work assignments in the leads’ letters and record
testimony that such refusals were repeatedly brought to
the attention of a supervisor. The judge, however, did
not credit any testimony that Cintron, Fumero, and Reyes
refused to perform work assignments. Instead, based on
333 NLRB No. 144
SIGNATURE FLIGHT SUPPORT 1251
his assessment of the record as whole, the judge found
that the employees complained about work assignments,
but then performed them. As stated in footnote 2, supra,
we find no basis for reversing the judge’s credibility
findings.6 The judge relied not only on his observations
of the demeanor of the witnesses, but also reasoned that
it was implausible that the Respondent, which was sub-
ject to strict time deadlines by its customers, would have
tolerated employees who had refused to work as fre-
quently as the Respondent’s witnesses claimed. In addi-
tion, we agree with the judge that the Respondent’s de-
fense is undermined by the fact that, contrary to its own
practice, the Respondent did not conduct an investigation
or give the employees an opportunity to respond to the
allegations against them. Accordingly, as the Respon-
dent’s explanations for the discharges were found to be
incredible and unsupported by the record, the Respon-
dent has not met its burden of proving that it would have
taken the same acton even in the absence of the employ-
ees’ protected concerted activity. We therefore conclude
that the Respondent violated Section 8(a)(1) of the Act
by discharging Cintron, Fumero, and Reyes.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Signa-
ture Flight Support, Orlando, Florida, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its Orlando, Florida facility copies of the attached notice
marked “Appendix. B”5 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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 cur-

6 The Respondent’s exceptions brief points to disciplinary warnings
given to Fumero and Reyes for refusing to remove trash on February
26, 1998. The judge’s credibility findings, however, include the dis-
crediting of the lead who furnished the information on which these
disciplinary warnings were based. In any event, this alleged incident is
not closely connected in time to the discharges, which did not occur
until approximately 3 weeks later.
rent employees and former employees employed by the
Respondent at any time since March 18, 1998.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT discharge or otherwise discriminate
against any employee because he or she engaged in con-
certed activities protected by the Act.
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 the
Board’s Order, offer Judith Fumero, Blanca Cintron, and
Carmen Reyes full reinstatement to their former jobs or,
if those jobs no longer exist, reinstatement to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL make Judith Fumero, Blanca Cintron, and
Carmen Reyes whole for losses of earnings and other
benefits suffered as a result of their discharges, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any references to
the unlawful discharges of Judith Fumero, Blanca Cin-
tron, and Carmen Reyes, 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.

SIGNATURE FLIGHT SUPPORT

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
David Anhorn, Esq., for the General Counsel.
Michael Taylor, Esq. and Benedetto Stevens, Esq. (Verner, Liipfert, Bernard, McPherson &
Hand), of Washington, D.C., for the Respondent.
Judith Fumero, for the Charging Party.

BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this case on June 21–23, 1999,
in Orlando, Florida. After the parties rested, I heard oral argument on June 24, 1999, and on
June 25, 1999, issued a bench decision pursuant to Section 102.35(a)(1) of the Board’s Rules
and Regulations, setting forth findings of fact and conclusions of law. In accordance with
Section 102.45 of the Rules and Regulations, I certify the accuracy of, and attach as “Appendix
A,” the portion of the transcript containing this decision.1
Two of the findings in the bench decision warrant additional di scussion. First is my con-
clusion that the three alleged discriminatees had engaged in protected concerted activities.
Second is my conclusion that Respondent’s stated reason for discharging these three employees
was pretextual, resulting in an inference of animus.
With respect to the first issue, whether the alleged discriminatees had engaged in protected,
concerted activities, in Plumbers Local 412, 328 NLRB 1079 (1999), the Board panel unanimously
adopted the decision of the Honorable Mary Miller Cracraft, dismissing a complaint after finding
that the alleged discriminatee had not engaged in concerted activity. Judge Cracraft’s decision
reviewed the development of Board law concerning what activity is concerted, and what activity is
not.
As Judge Cracraft noted, an individual employee acting with or on the authority of other
employees and not solely on his or her own behalf is engaged in concerted activity. Meyers
Industries (Meyers I), 268 NLRB 493, 497 (1984), revd. sub nom. Prill v. NLRB, 755 F.2d 941
(D.C. Cir. 1985), cert. denied 474 U.S. 971 (1985), decision on remand Meyers Industries
(Meyers II), 281 NLRB 882, 885 (1986), enfd. 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487
U.S. 1205 (1988).
When an individual employee tries to persuade other employees to prepare for or engage in
group action, that one employee’s advocacy falls within the definition of concerted activity.
Meyers II, 281 NLRB at 887. A battle cry of “follow me” constitutes concerted activity if uttered
to enlist fellow employees in common cause, even if the other employees do not follow. See, e.g.,
Lafayette Park Hotel, 326 NLRB 824, 826 (1998).
As discussed in Appendix A, the record here contains extensive evidence that the three alleged
discriminatees, Fumero, Cintron, and Reyes, were not simply “griping” for reasons unrelated to
concerted action, but voiced their complaints specifically to awaken similar concerns in their fellow
workers. Before deciding to discharge Fumero, Cintron, and Reyes, the managers involved in that
decision reviewed Respondent’s Exhibit 20(h), one of a number of letters and memos from the
leads and coordinators. Respondent’s Exhibit 20(h) reported that when some other employee
disagreed with the position taken by Fumero, Cintron, Reyes, and another employee, these four
would “tell them that they must all stick together for their beliefs.”
This same document reported that the four complaining employees would tell other workers, in
effect, that they were “stupid” if they allowed “the company to treat you as slaves.” Moreover, other
evidence, discussed in Appendix A, establishes that the alleged discriminatees acted together for
their mutual aid and protection. I find that the evidence clearly establishes that Fumero, Cintron,
and Reyes engaged in concerted activity.
Additionally, I find that their actions were protected by the Act, as well as concerted. The al-
leged discriminatees urged their fellow workers to protest matters related to working conditions,
such as who should do certain work and how it should be done. See, e.g., Timekeeping Systems,
Inc., 323 NLRB 244 (1997); American Red Cross Blood Services, 322 NLRB 590 (1997).
The second matter warranting further discussion here concerns my finding that animus mo-
tivated the Respondent’s actions. Although the complaint alleged such statements which, if

1 A computer malfunction made it necessary to deliver the bench de-
cision extemporaneously without reference to the draft I had prepared.
The transcript attached has been revised for clarity as well as corrected
to eliminate transcriptional and typographical errors.
established, would constitute evidence of animus, I found that the credited evidence did not
prove these alleged violations. Instead, my finding of animus rests on an inference.
I have concluded that Respondent offered a pretextual expla-
nation for discharging the three employees, Fumero, Cintron, and
Reyes, alleged as discriminatees in the complaint. From that
conclusion, and from the timing of the discharges, I have inferred
that Respondent acted, at least in part, from antiunion animus.
Basing this essential finding on inference makes this case very close. Board precedent al-
lows a finding of animus to rest on indirect evidence in appropriate cases, see, e.g., Montgom-
ery Ward & Co., 316 NLRB 1248, 1253 (1995), but recent Board decisions also have shown
instances when drawing such an inference is inappropriate. For example, in J. O. Mory, Inc.,
326 NLRB 604 (1998), the Board reversed a judge’s finding of unlawful motivation based upon
one instance in which the respondent departed from its customary, and facially valid, hiring
practices. See also Frierson Building Supply Co., 328 NLRB 1023 (1999), in which the Board
again found an inference of animus unwarranted.
In the present case, Respondent has asserted that it terminated their employment because they
had refused to work and therefore were insubordinate. However, I find that the credible evidence
fell short of establishing that they refused to work.
It also is implausible that a company which must meet strict deadlines to make a profit, and
which must pay a penalty if its employees fail to finish the task on time, would tolerate em-
ployees who refused to work. Considering this implausibility together with the absence of
credible evidence showing that Fumero, Cintron, and Reyes refused to work, I conclude that
Respondent’s proffered explanation is not the real one.
Additionally, in deciding whether it is appropriate to infer animus, I have considered the
timing of the discharges. However, in light of the Board’s holding in Frierson, it is important
to specify exactly which time period, in my opinion, raises the suspicion of animus.
In Frierson, less than 3 months had gone by, a much shorter period than present here, if the
elapsed time is measured from the end of the union organizing campaign in July 1997. How-
ever, for the reasons discussed in the bench decision, I conclude that the union organizing
campaign had little relevance to the events in this case. The protected activity which aroused
the Respondent’s animus began in January 1998, and continued up until Respondent discharged
Fumero, Cintron, and Reyes in March 1998. Although this interval is more comparable to that
in Frierson, it is not the time period which raises the specter of animus.
Rather, there is another, even shorter period of time which, I believe, suggests a link between
the protected activities of the three alleged discriminatees and the Respondent’s decision to dis-
charge them. That period is the brief interval between when Managers Lehmann and Zunk read the
letters and memos from the leads—documents which placed them on notice of the three employees’
protected concerted activities—and when they decided to discharge these employees. In my view,
this short time, together with the absence of credible evidence to support Respondent’s explanation
that the three alleged discriminatees had refused to work, justify the inference of animus.
In deciding whether animus should be inferred, it is also useful to consider the amount of
animus which the General Counsel must demonstrate to meet the government’s initial burden
of proof.2 The General Counsel does not have to show that a miasma of animus palpably
2 In the bench decision, I have referred to the government’s “prima
facie case.” In light of recent cases, that terminology may require
clarification. See, e.g., Tres Estrellas de Oro, 329 NLRB 50 at fn. 2
(1999); Schaeff, Inc. v. NLRB, 113 F.3d 254 (D.C. Cir. 1997), discuss-
ing Office of Workers’ Compensation v. Greenwich Collieries, 512
U.S. 267 (1994).
As I have applied the Wright Line analysis, the General Counsel must
prove that animus was a factor—more specifically, a “substantial or moti-
vating factor,” Manno Electric, 321 NLRB 278, 280 fn. 12 (1996)—in
Respondent’s decision to take adverse employment action. In other
words, the General Counsel must prove by a preponderance of the evi-
dence that animus was present during the decision-making process.
On the other hand, the General Counsel does not have the burden,
during the government’s case in chief, of coming forward with evi-
dence showing that but for the existence of animus, the respondent
would not have taken the adverse employment action. In effect, once
SIGNATURE FLIGHT SUPPORT 1253
thickened the air around the managers when they made the discharge decisions. Rather, the
government only has to prove that some animus was present, just enough to be a “substantial or
motivating factor.”
For the reasons discussed above, I conclude that this amount of animus may be inferred.
That conclusion begins, rather than ends, the inquiry as to whether, but for the animus, Respon-
dent would have discharged the three employees.
Once the General Counsel has demonstrated the presence of animus in the decision-making
atmosphere, the Respondent then must show that its decision was not tainted by it. In other
words, the Respondent must come forward with proof that it would have taken the same action
against the alleged discriminatees even if they had engaged in no protected activities.
To make such a showing, an employer cannot simply present a legitimate reason for its ac-
tions but must persuade by a preponderance of the evidence that the same action would have
taken place even in the absence of the protected conduct. See, e.g., Held & Held Masonry, Inc.,
328 NLRB 1090 (1999); Greenfield Die & Mfg. Corp., 327 NLRB 237 (1998), Hicks Oils &
Hicksgas, 293 NLRB 84, 85 (1989).
Respondent did not present evidence sufficient to show that the presence of animus during
its decision–making process did not affect the outcome of that process. Stated another way, it
did not demonstrate that even in the absence of animus, it would have discharged Fumero,
Cintron, and Reyes.
CONCLUSIONS OF LAW
1. Respondent, Signature Flight Support, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. On or about March 18, 1998, Respondent discharged its employee Blanca Cintron. On
or about March 20, 1998, Respondent discharged its employees Judith Fumero and Carmen
Reyes. Respondent discharged Cintron, Fumero, and Reyes to discourage employees from
engaging in concerted activities protected by the Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
3. Respondent did not violate the Act in other respects alleged in the complaint.
4. The violations described in paragraph 3, above, affect commerce, and unless enjoined
will continue to 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, including posting the notice to employees attached as Appendix B.
Respondent must be ordered to offer immediate and full reinstatement to Blanca Cintron, Judith
Fumero, and Carmen Reyes, and make them whole, with interest, for all losses they suffered
because of the Respondent’s unlawful discrimination against them.
On the findings of fact and conclusions of law herein, and on the entire record in this case, I
issue the following recommended3
ORDER
The Respondent, Signature Flight Support, Orlando, Florida, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee because he or she en-
gaged in concerted activities protected by the National Labor Relations Act.

the government proves that animus was a “substantial or motivating
factor,” a rebuttable presumption arises that but for this animus, the
adverse employment action would not have occurred. However, the
existence of this presumption does not relieve the General Counsel of
the burden of persuasion.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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
(b) 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 Judith Fumero, Blanca Cintron, and Car-
men Reyes full reinstatement to their former jobs or, if those jobs no longer exist, reinstatement to
substantially equivalent positions, without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Judith Fumero, Blanca Cintron, and Carmen Reyes whole, with interest, for all losses
of earnings and other benefits suffered as a result of the unlawful discrimination against them.4
(c) Within 14 days from the date of this Order, remove from its files any references to the
unlawful discharges of Judith Fumero, Blanca Cintron, and Carmen Reyes, and within 3 days
thereafter notify these employees in writing that this action has been taken and that the dis-
charges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make available to the Board or its agents for ex-
amination and copying, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its facility in Orlando, Florida, and at all
other places where notices customarily are posted, copies of the attached notice marked “Appendix
B.”5 Copies of the notice, on forms provided by the Regional Director for Region 12, after being
signed by the Respondent’s authorized representative, shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive days in conspicuous places including all
places where notices to employees customarily are posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other material.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn cer-
tification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

APPENDIX A
BENCH DECISION
JUDGE LOCKE: This case arose because of the Complaint that the Regional Director of
Region 12 of the National Labor Relations Board issued on behalf of General Counsel of the
Board on October 27th, 1998.
I heard the case on June 21st, 22nd and 23rd when the Parties presented evidence.
Yesterday, June 24th, counsel for the parties gave oral argument and today I am giving the
Bench Decision. The Complaint alleges that Respondent made unlawful threats to employees,
and that it discriminated against three employees by discharging them in violation of Section
8(a)(1) of the Act. Although I find that the evidence does not establish that Respondent made
the threats alleged in the Complaint, I find that the discharges of the three employees were
unlawful.
Certain facts are undisputed. I address those facts first, then go to an overview of the case,
and then to the specific allegations.
I. UNDISPUTED FACTS
The Respondent has admitted the allegations in Paragraph 1 of the Complaint regarding fil-
ing and service of the charge. I find that the original charge in this proceeding was filed by the
Charging Party on April 17, 1998 and that copies were served by regular mail on Respondent
on April 21, 1998.
4 Backpay shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
I also find that the first amended charge was filed on April 29, 1998 and served by regular
mail on May 1, 1998, and that the second amended charge was filed by the Charging Party on
September 9, 1998 and that copies were served by mail on Respondent on that same date.
The Respondent has also admitted facts establishing that it is an Employer engaged in
commerce within the meaning of Sections 2(2), (6) and (7) of the Act. And at hearing, Re-
spondent orally amended its Answer to specifically admit the allegation in Complaint Para-
graph 2(c) to that effect. So I find that the Respondent has been and is an employer engaged in
commerce within the meaning of Sections 2(6) and (7) of the Act.
Respondent has also admitted that Ms. Nilda Rios, the regional human resources manager,
and Mr. Lester Wiggins, the department manager, are supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of Respondent within the meaning of Section
2(13) of the Act. I so find.
II. OVERVIEW OF THE CASE
Signature Flight Support is engaged in providing services to companies that operate and fly air-
planes, both airlines, such as Continental Airlines, and also companies that provide charter flights.
Services that the Employer provides include cleaning the inside of the plane, which is done by the
people classified as cabin service employees or cleaners. Other employees, who work outside the
planes, are classified as ramp service employees.
This case does not really concern the ramp service employees, but does concern three of the
cabin service employees who clean the passenger compartments of the planes. The Complaint
alleges that the Employer unlawfully discharged these three: Blanca Cintron, Judith Fumero,
and Carmen Reyes.
Although Respondent admits discharging the three employees, it has denied that it did so be-
cause they had engaged in activities protected by the National Labor Relations Act, or to discourage
other employees from engaging in protected activities. The central issues in this case concern the
lawfulness of the three discharges. However, certain other issues are also in dispute.
III. DISPUTED ISSUES
A. Status of “Leads” and “Coordinators”
There are about 60 people involved in cleaning airplanes and about 8 to 10 people who are
classified as the leads. At hearing, the General Counsel orally amended the Complaint to allege
that these “leads” and other persons classified as “coordinators” were agents of the Respondent.
Later in the hearing, the General Counsel further amended the Complaint orally to allege that
these same individuals were supervisors of the Respondent.
“Leads” are essentially persons who work alongside employees to clean airplanes. They
perform the same sort of duties as the other employees in that they clean lavatories and galleys
and sack up trash and take it to the dumpster. But they also have additional responsibilities
which include making changes in the scheduling of employees to compensate for airplanes
arriving for service at times other than the times at which they were scheduled to arrive.
Besides that, they do tell employees what tasks to do and review the work of employees.
For example, if a cleaner has cleaned a lavatory but left the floor wet or cleaning supplies still
in the lavatory, then the lead may, on occasion, tell the cleaner to put away the supplies and dry
the floor.
I find it unnecessary to the resolution of this case to decide whether or not the leads are su-
pervisors or agents. However, I think the evidence falls short of establishing that they are
supervisors.
Since the General Counsel is the proponent of a finding that the leads have supervisory
status under the statute, the General Counsel bears the burden of showing that the leads meet all
necessary indicia under Section 2(11) of the Act, including the requirement that, in the exercise
of any of the functions enumerated in Section 2(11), the lead employee exercises independent
judgment.
I find that the evidence in this case is insufficient to establish that they exercise independent
judgment.
There is a closer question as to whether the leads are agents of the Employer or, even if not
agents as sanctioned by the Employer, whether they exercise apparent agency in speaking for
the Employer in certain situations. I am not reaching that issue because I find it unnecessary to
the resolution of this case.
The other persons in dispute are classified as coordinators. They seem to occupy a position
in the hierarchy which is below the supervisor, Mr. Wayne Pettigrew, but above the leads, in
that they are involved in the scheduling of employees.
There is some evidence in the record that employees who are resistant to taking instruction
from the leads nonetheless acknowledge that they have to follow the instructions of the coordi-
nators. The record does not establish that the coordinators exercise sufficient independent
judgment to meet the definition of “supervisor” in Section 2(11) of the Act. I need not reach
the question of whether the coordinators were actual or apparent agents of the Respondent,
because it is not necessary to deciding this case.
Even though the record does not establish that the coordinators and leads are supervisors or
agents of the Respondent, there is not doubt that the leads occupy a rather unique position
somewhat distinct from the employees classified as cabin cleaners. The leads tell these em-
ployees what to do, at least using routine judgment if nothing more, and the leads also review
the employees work.
Additionally, the leads feel an obvious pressure and desire to get the work done as quickly
and efficiently as possible. This pressure arises because Respondent’s contract with the airline
provides a bonus for doing a job more quickly than the allowed time specified in the contract,
and provides a penalty for doing it more slowly.
To some extent, the work of the cleaners and leads involves two contrasting extremes, not
unlike those experienced in a fire department. The tedious time spent waiting for a plane to
arrive changes quickly to the urgent activity necessary to avoid a penalty and earn a bonus.
The leads feel the pressure of mobilizing the cleaners and focusing their attention on doing
the work in less time than the deadline allows. In this sense, the leads’ interest clearly is
identified with management. But evidence in the case also indicates that the leads, if not in
conflict with their immediate supervision, at least did not always receive a sympathetic ear
from Mr. Wayne Pettigrew, their immediate supervisor, and his boss, Mr. Lester Wiggins.
As will be discussed later in this decision, the leads became discontented with the response
their complaints received from their immediate supervisors and decided to go over their heads
to a manager in human resources. This action began the chain of events which lead to the
discharge of the three employees alleged as discriminatees in the Complaint. Before discussing
these events, however, I will consider other allegations raised by the Complaint.
B. The Alleged Threats
Complaint paragraphs 5, 6 and 7 allege that Respondent made threats which, according to
Complaint paragraph 8, interfered with, restrained and coerced employees in violation of Section
8(a)(1) of the Act. To prove these allegations, the General Counsel relied on the testimony of one
witness, Judith Fumero.
That testimony contradicted the testimony of the two managers who allegedly made the threats,
Nilda Rios (with respect to the allegations in Complaint paragraph 6) and Lester Wiggins (with
respect to the allegations in Complaint paragraphs 5 and 7). Therefore, I will begin by addressing
these credibility conflicts.
Based upon my observations of the demeanor of Ms. Fumero, I cannot credit her testimony
as being reliable. I am not saying that she deliberately tried to falsify testimony because I do
not believe that is true. To the contrary, I believe she tried to be an honest witness.
However, she did react very emotionally to the facts of the case and at one point I called a
recess in the hearing so that she could regain her composure. I believe that the strong emo-
tional involvement of Ms. Fumero necessarily affected her perception of the events and,
perhaps, her recollection of the events.
Besides that, I found it difficult, in listening to Ms. Fumero’s testimony, to distinguish be-
tween what she had actually observed and her interpretation of what she actually observed. An
illustration of this is her testimony that her immediate supervisor, Mr. Wayne Pettigrew—who
is a retired staff sergeant from the United States Marine Corps—carried either an invisible whip
or a leather whip with invisible tips. I believe she used both phrases.
When I heard her say those words and observed her, Ms. Fumero’s demeanor suggested to
me that she was intending the words to be understood literally. But after a clarification, it
became apparent that she was just expressing her opinion about Mr. Pettigrew’s attitude and
doing so by casting that opinion in the form of a very vivid visual image.
SIGNATURE FLIGHT SUPPORT 1255
Such impressionism certainly has its place in art, but when truth is presented in the form of
such impressions, it is more useful to the artist than to someone who must make detailed
findings of fact. Therefore, I must rely upon the more literal testimony of other witnesses, for
the same reason that an astronomer doing research would choose the images from the Hubble
Space Telescope rather than a print of Van Gogh’s “Starry, Starry Night.”
Where there is a conflict in the testimony, based upon the demeanor of the witnesses, I will
credit Ms. Rios and Mr. Wiggins rather than Ms. Fumero.
Complaint Paragraph 5
Paragraph 5 of the Complaint alleges that in or about February 1998, a more precise date
being unknown to the General Counsel at this time, Respondent, by Lester Wiggins, at the
Orlando facility, threatened employees with unspecified reprisals because of their protected
concerted activities.
In closing argument, Counsel for the General Counsel said that he could not find evidence
to support that allegation. I will recommend that it be dismissed.
Complaint Paragraph 6
Paragraph 6 of the Complaint alleges that in or about February 1998, a more precise date
being unknown to the General Counsel, Respondent, by Nilda Rios, at the Orlando facility,
threatened employees with unspecified reprisals, because of their protected, concerted activi-
ties. However, I can find nothing in the record that indicates any conversation took place in
February 1998 which would resemble the allegations of Paragraph 6. Ms. Fumero did testify
concerning a conversation she had with Ms. Rios several months earlier.
According to Ms. Fumero, around Thanksgiving of 1997, she encountered a man known
only in the record as “Michael”, who identified himself as a new manager at Continental
Airlines and asked what he could do to be of help to the Signature Flight Support employees
who were cleaning the planes. In response, Ms. Fumero recited some of the complaints of the
cleaners, the asserted absence of gloves, the use of harsh chemicals, and similar work-related
problems.
Ms. Fumero testified that some time after this conversation, Ms. Rios called her in and said
that she should not engage in “Union tactics.” Ms. Fumero testified that this was the third time
Ms. Rios had spoken of her engaging in “Union tactics.”
Ms. Rios denies making any comment about Union tactics.
Based upon the demeanor of the witnesses, I credit Ms. Rios. It is very possible Ms.
Fumero thought about what she did in terms of Union tactics because when she talked with this
man named Michael, she referred to “local issues,” which is a term that a Union official or shop
steward might use. So it is possible that Ms. Fumero associated the statements she made to
“Michael” with union activity in her mind, but crediting Ms. Rios, I find that Ms. Rios did not
say the things attributed to her by Ms. Fumero.
There is no credited evidence that would support a finding that there was any threat of re-
prisal or force or promise of benefit. I find that there is no credible evidence that Section 8(a)(1)
of the Act was violated as alleged in Complaint paragraph 6. Therefore, I recommend that this
allegation be dismissed.
Complaint Paragraph 7
Paragraph 7 of the Complaint alleges that on about March 10, 1998, Respondent, by Lester
Wiggins, at the Orlando facility, threatened employees with unspecified reprisals, because of their
protected, concerted activities. The government relies upon the testimony of Judith Fumero to
prove this allegation. However, the testimony does not establish that there was any conversation
between Mr. Wiggins and Ms. Fumero on March 10, 1998. Such a conversation would be highly
unlikely because Ms. Fumero was out on worker’s compensation at that time.
The General Counsel has urged that I consider that the conversation took place at another
time and that Ms. Fumero may have gotten the date wrong.
Ms. Fumero, in effect, testified that Mr. Wiggins told her to keep her nose out of other people’s
business and not to try to represent employees. According to Ms. Fumero, Mr. Wiggins said that
Florida was a working state, that no one would support her in her quest, and that she would have no
place to go, to which she replied that she could go to the NLRB and left his office.
Mr. Wiggins, whose testimony I credit, testified about a couple of conversations with Ms.
Fumero which apparently may have gotten combined in her recollection, although the testi-
mony is not entirely clear on that point. In one conversation described by Mr. Wiggins, Ms.
Fumero complained about a new attendance policy which the Respondent had announced by
February 12, 1998 memo.
Ms. Fumero, who had moved to Florida from New York, told Mr. Wiggins that parts of the
new policy were unlawful under New York law. Mr. Wiggins testified that he responded that
they were in Florida, and that New York law did not apply. Based upon my observations of
the witnesses, I find that Mr. Wiggins made the comment about being in Florida, rather than
New York, in response to a statement by Ms. Fumero that the new attendance policy violated
New York law. Such a statement did not violate Section 8(a)(1) of the Act.
As I have already stated, it appears that Ms. Fumero’s memory may have fused more than
one conversation into a single event. According to Mr. Wiggins, whom I credit, on one occa-
sion Ms. Fumero asked Mr. Wiggins if she would get in trouble if she represented the ramp
employees. Mr. Wiggins and Ms. Fumero were on good terms as supervisor and employee, so I
do not find it particularly unusual that Ms. Fumero would feel at liberty to ask Mr. Wiggins this
question, although it is a bit unusual that Ms. Fumero would want to assume the duty of repre-
senting unrepresented employees in a different job classification. However, she had been a
shop steward in her previous employment and perhaps she wanted to do it because of that
experience.
Mr. Wiggins, whom I credit, testified that he told Ms. Fumero that he did not think she
would get in trouble, but he also told her to be careful about representing the ramp employees
because she was a cleaner, not a ramp employee, and the job duties were different.
I find that Mr. Wiggins made the comments he described in his testimony. However, I find
that his statements contained no suggestion that Ms. Fumero should be careful because she
might get in trouble for engaging in concerted activities.
In sum, I find that the evidence does not establish that Respondent threatened employees
with unspecified reprisals as alleged in Complaint paragraph 7. Therefore, I recommend that
this allegation be dismissed.
The Discharges
Paragraph 8 of the Complaint alleges that Respondent discharged three employees, and
Paragraph 9 alleges that these discharges violated Section 8(a)(1) of the Act. Specifically,
paragraph 8(a) alleges Respondent terminated the employment of Blanca Cintron on about
March 18, 1998, and paragraph 8(b) alleges that it discharged Judith Fumero and Carmen
Reyes on about March 20, 1998.
There is no dispute that the Respondent did discharge the named employees on or about the
dates alleged. Uncontradicted testimony establishes that Regional Human Resources Manager
Nilda Rios, with approval from two other officials of Respondent—Human Resources Manager
Ronald Zunk and General Manager Mark Lehmann—made this discharge decision.
However, Respondent does deny the unlawful motivation alleged in Complaint Paragraph
8(c), which states:

Respondent engaged in the conduct described above in paragraphs 8(a) and 8(b) because its
employees engaged in the conduct described above in paragraph 4, and to discourage employ-
ees from engaging in these or other concerted activities.

Paragraph 4 of the Complaint alleges that on about January 2, 1998, Ms. Fumero, on behalf
of herself and other employees, presented to Respondent a letter which complained about
working conditions. Although Complaint paragraph 4 does not explicitly allege that Fumero’s
presentation of the letter to Respondent constituted concerted activity protected by the Act, the
Complaint as a whole makes that premise clear.
The Complaint does not allege that Fumero or other employees engaged in any other activi-
ties protected by the Act, apart from presenting Respondent with the January 2, 1998 letter.
Additionally, the Complaint does not allege that Respondent violated Section 8(a)(3) of the
Act, which prohibits discrimination to encourage or discourage membership in a labor organi-
zation. Nonetheless, at hearing, General Counsel pointed to a union organizing campaign that
took place in the Spring of 1997 as being relevant to this case on the issue of protected, con-
certed activities. I respectfully disagree.
The small amount of evidence we have on the Union organizing campaign suggests that it
ended around July 10, 1997. No election was conducted. A union was not recognized or
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
certified. The Charging Party here, Ms. Fumero, rather vigorously denied participating on
behalf of the union and the union organizing campaign.
Ms. Fumero did admit that she would tell employees about her experiences as a shop stew-
ard when she lived in another state and worked for another employer. However, there is no
evidence that the management of the Company knew about such statements by Ms. Fumero at
the time it discharged her. Also, approximately nine months had elapsed between the time of
the end of the Union organizing campaign and the time that Ms. Fumero and the other Dis-
criminatees were discharged. So I do not believe that the Union organizing campaign in 1997
has a lot of relevance to this case.
In my view, the relevant facts begin on January 2, 1998, when Ms. Fumero brought to the
manager, Mr. Lester Wiggins, the letter described in Complaint paragraph 4. That letter, which
is in evidence as General Counsel’s Exhibit 2, states, in pertinent part:

We, the under-signed employees of Flight Support employed full-time and part-time are writing
this letter to you because we have exhausted all avenues trying to get help with the problems we
have been facing.

Talking to our superiors in the Personnel Department has elicited no results. This letter is in the
nature of a grievance. The following are our list of grievances:

1. Tyranny
2. Harassment
3. Intimidation
4. Lack of Recognition
5. Threats incurred by leads and support staff
This matter is very important to my job security.
Your consideration will be greatly appreciated. We respectfully request an acknowledgement.

(GC Exh. 2)
Ms. Fumero testified that attached to this letter was a list or a sheet that contained the signa-
tures of other employees. The evidence does not establish that management had this list of
other employees’ signatures. At one time it is possible that Mr. Wiggins may have had it, but
the evidence does not establish that the three individuals who were involved in making the
decision to discharge the three alleged Discriminatees, namely Ms. Rios, Mr. Zunk, and the
general manager, Mr. Lehmann, had seen either the list attached to the letter or the letter itself,
or even were aware of this letter.
Possibly, Mr. Lehmann was aware of it, but I credit the testimony of Mr. Zunk and Ms.
Rios that they were not aware of it. Nonetheless, the letter is important. Although the evidence
does not establish that the letter itself motivated the discharge—the managers who made the
discharge decisions were not even aware of the letter at that time—the letter still set in motion a
chain of events which culminated in the terminations.
When Ms. Fumero presented the letter to Manager Wiggins, he considered it carefully. Mr.
Wiggins credibly testified that he had a respect for Ms. Fumero. Also, I believe it was mani-
fest from his demeanor when he testified about Ms. Fumero that Mr. Wiggins liked her and
respected her. Not only did he take the complaints in Ms. Fumero’s letter seriously, he acted
on them.
Very shortly after receiving it, Mr. Wiggins called two meetings, a meeting of the cabin
cleaners and another meeting of the leads. His meeting with the cabin cleaners dealt with other
issues in addition to the matters raised in Ms. Fumero’s letter. These issues included a question
about wage increases. Mr. Wiggins said he would look into that matter.
In his meeting with the leads, Mr. Wiggins said that if there had been instances of harassment, he
would not tolerate them. Mr. Wiggins also met individually with leads who could not attend the
meeting as a group, and communicated the same message.
As I mentioned, the leads were in sort of a unique position which, in my mind at least,
evokes the old anecdote about being in a swamp trying to drain it when you have an alligator
problem. In other words, it would not surprise me at all if the leads felt that the people who
were sitting in offices did not have an appreciation of the rigors of their job.
When they heard Mr. Wiggins make a stern statement that there shall be no harassment, it
appears that some of the leads reacted by thinking, “well, what about us? We get harassed as
well.” So their supervisor’s “no harassment” comment caused some foment among the leads.
But so far as I can tell from the evidence, although there was discontent among the leads,
nothing else happened at that time in early January 1998.
However, in February there was a time when the human resources manager, Ms. Nilda
Rios, spoke with the leads about their frustrations. I credit Ms. Rios’ testimony that she “in-
vited” the leads or suggested to the leads that they put their concerns in writing.
The response from the leads was almost a volcanic eruption. These letters and memos from
the leads filled Respondent’s Exhibit 20(b) through 20(k).
Initially in considering this evidence, it was tempting to regard this outpouring of letters as
somewhat analogous to a “flaming” on the Internet. In other words, the leads were upset that
Ms. Fumero had stirred up problems with her January 2, 1998 letter, and decided to “flame” her
by sending all these letters to management. Likening the leads’ response to a “flaming” would
suggest a willful and deliberate vendetta.
But there is another way to look at it which I think is probably more accurate: When Ms. Rios
suggested to the leads that they send her letters describing their complaints, it was like opening the
valve on a boiler where the pressure already had gone into the red, resulting in an almost volcanic
eruption of steam. The motivation was not vengeance but a desire for relief.
The leads’ letters focused on five or six individuals, three of them being the alleged Discrimina-
tees and two or three being people who were not discharged. Ms. Rios reviewing these documents
and decided that she would recommend that three employees, Ms. Cintron, Ms. Reyes, Ms.
Fumero, be discharged.
Ms. Rios’ superior is Ronald Zunk, the human resources manager for the entire company.
When he was in town, Ms. Rios got together with Mr. Zunk and with Mr. Mark Lehmann, the
Respondent’s general manager for Orlando. The testimony pretty consistently shows that Mr.
Zunk and Mr. Lehmann, in effect, rubber-stamped what Ms. Rios wanted to do. They took a
brief, cursory look at the leads’ letters and memos and agreed with Ms. Rios’ recommendation
to discharge the three alleged discriminatees, saying, in effect, “okay, these employees are
guilty of insubordination because they have refused to work.”
Mr. Lehmann testified that he considered that the three employees who were discharged
had been abusive to the leads and had refused to follow their instructions. Therefore, he
concluded that the discharges were justified. After receiving approval from Mr. Lehmann and
Mr. Zunk, Ms. Rios discharged the three employees.
Mr. Lehmann, Ms. Rios and Mr. Zunk credibly testified that when they made the discharge
decisions, they were not aware of the January 2, 1998 letter which Ms. Fumero gave to Man-
ager Wiggins. Based on this testimony, I find that the letter did not play any part in the deci-
sion to discharge the three individuals. Therefore, I cannot find, as alleged in Paragraph 8(c),
that the alleged Discriminatees were discharged because they engaged in the conduct described
in Paragraph 4.
In other words, I conclude that the General Counsel has not proven the first allegation in
Complaint paragraph 8(c), that Respondent discharged these employees “because its employees
engaged in the conduct described . . . in paragraph 4” of the Complaint.
However, Complaint paragraph 8(c) alleges not only this retaliatory motive, but also that
Respondent discharged the three workers to discourage employees from engaging in other,
similar protected activities. I still must determine whether the evidence establishes this second
alleged motive. I find that the employees were discharged for this second unlawful purpose
alleged in the Complaint.
The main evidence I have relied upon in making this finding is found in Employer’s Exhibits
20(a) through 20(k). The record strongly suggests that these memos and letters from the leads to
Ms. Rios were the only documents considered by Ms. Rios and the other two managers when they
made the discharge decisions.
The evidence pretty clearly indicates that they did not conduct an independent investigation.
Certainly, they did not call in the three employees, Ms. Cintron, Ms. Reyes and Ms. Fumero, and
ask them for their version. So I am left with the conclusion that whatever the managers knew about
the situation came from the letters which are in evidence as Employer’s Exhibit 20.
At the very least, these letters formed a major part of the information available to Managers
Rios, Zunk and Lehmann when they made the discharge decision. These letters, I believe,
establish one of two things. They establish either that the alleged discriminatees had, in fact,
engaged in protected concerted activities or else that management believed they had.
SIGNATURE FLIGHT SUPPORT 1257
I say, “or else” because the letters, at least some of them, make statements which are clearly hearsay
in nature and cannot be accepted for the truth of the matters they assert. However, the letters and
memos can still be accepted as providing information upon which the managers acted in making the
discharge decision. As the General Counsel pointed out in argument, if the managers acted out of a
belief that employees had engaged in protected activity, it is no different legally from acting with the
knowledge that the employees really had engaged in such protected activity. Either way, discrimination
based upon that protected activity or presumed protected activity would be unlawful.
Employer’s Exhibit 20(h) is a memo to Ms. Rios from Mayra Wiggins, a cabin service co-
ordinator, who is also the spouse of manager Lester Wiggins. The coordinators are in a posi-
tion to be a conduit of information from the leads to higher levels in the company. Clearly, that
was the intent of Ms. Wiggins when she wrote the memo on March 13, 1998, which is Em-
ployer’s Exhibit 20(h), because she says in that memo, and I quote: “Since I work in the office
most of the people come to me to complain about this group, Blanca Cintron, Carmen Reyes,
Judith Fumero, and Nilda Lopez.”
Then her letter goes on to describe “Examples of the numerous complaints against these
people . . . ” I will only quote some of these examples. (The memo has a number of typo-
graphical errors but for accuracy, I will quote it verbatim even though the grammar may not
always be clear.) At one point in the memo, Ms. Wiggins states:

If you ask someone to stay overtime or to work a few hours extra to help during the rush, this
group of people complain and harass the other co-workers and they feel uncomfortable working
around this group.

Here is another quotation:

If the company or leads have to make adjustments or changes to their job assignments for them
everything to them is illegal. They keep telling everybody else where their believes are right
and this makes everyone else confused.

If anyone don’t agree with something that they say they are called traitors and tell them that they
must all stick together for their beliefs.”

On the second page of her memorandum, Ms. Wiggins reported that “most of the senior people
are very upset” because of comments made by the four employees, Cintron, Reyes, Fumero and
Lopez. She described the comments in this fashion: “. . . if you allow the company to treat you
as slaves you are all stupid. But not us. We are not slaves or stupid like all of you.”
Ms. Wiggins’ memorandum, and particularly the portions I have quoted, clearly indicate
that Cintron, Reyes, Fumero and Lopez had acted concertedly to change working conditions.
Significantly, Ms. Wiggins refers to these four employees as a “group.” Additionally, when
they urged other employees to stick up for their rights and not “allow the company to treat you
as slaves,” they were trying to persuade other employees to engage in concerted activities.
Certainly, the words attributed to Cintron, Reyes, Fumero and Lopez were not polite and,
frankly, a statement that “We are not slaves or stupid like all of you” may not have been the
most persuasive way to win the hearts of others for their cause. However, it is irrelevant that
Dale Carnegie might have chosen some gentler phrases. The law does not exclude statements
from its protection because the words may be ineffective as advocacy or impolite. The law
protects very robust expressions regarding the need for concerted activities.
Section 7 of the Act specifically guarantees employees the right not only to form a Union and to
bargain, but also to act collectively with each other for their mutual aid and protection. And the
statements Ms. Wiggins attributed to the Discriminatees in this case indicate pretty clearly that they
were urging other employees to act collectively for their mutual aid and protection.
Other letters and memos in Respondent’s Exhibit 20 also suggest that the alleged Discrimi-
natees were seeking to engage other employees in protected, concerted activities. Clearly, the
alleged discriminatees were seeking to change other employees’ attitudes about their work.
One of the memos complaining about the discriminatees suggests that the attitudes of other
employees would become better if these three employees were discharged. Specifically, the
memo from Linda Hernandez, in evidence as Employer’s Exhibit 20(j), names Cintron, Lopez,
Fumero and Reyes as causing the problems, and states “if these employees were not here, the
problem would stop. I know this for a fact.”
During the hearing there was testimony indicating that, in fact, after the discharges of the
three, the other employees identified in these memos did change their attitude, and the General
Counsel suggests that this may be due to a fear of meeting the same fate. But for whatever
reason, it would seem that these discharges certainly discouraged employees from expressing
the concerted sentiments that the three Discriminatees had expressed before.
Significantly, the letters and memos from the leads conveyed the clear impression that the
alleged Discriminatees were acting as a group. For example, the letter from Lead Octavia
Hemmings, in evidence as Employer’s Exhibit 20(k), states “If you have a problem with one of
these Lady [sic] you will have problems with all of them.” This letter specifically names two of
the three alleged Discriminatees (Carmen Reyes and Blanca Cintron) as well as two other
employees who were not discharged.
A letter from another lead, in evidence as Employer’s Exhibit 20(c), names the three al-
leged discriminatees and one other employee and states, in part, “they complain about their
job[s] they get all the other employees upset . . . they refuse to do what is asked of them without
complaining.”
Another letter, in evidence as Employer’s Exhibit 20(d), identifies the same four employees and
states that “Their influence has begun to spread rampant throughout our dept. . . .” A memo from
still another lead, in evidence as Employer’s Exhibit 20(e), states, in part, “Some of them like to
agitate the whole group and because of them we are having all these problems.”
Anyone reading the leads’ letters and memos could not escape the conclusion that there
were three or four complaining employees seeking to spread discontent to other workers.
Moreover, as discussed above, these letters and memos also left an inescapable impression that
the three or four complaining employees were acting as a group.
This impression, that the complaining workers acted in concert, also draws support from the
testimony of Octavia L. Hemmings, a lead. When asked whether these employees complained
individually, Ms. Hemmings replied, “Two or more together. Never one person.”
Although the letters and memos which Personnel Manager Rios received from the leads
clearly suggested the concerted nature of the complaints, some of them also indicated that the
alleged Discriminatees had engaged in activities which clearly are not protected by the law, for
example, refusing to do work. It is necessary to analyze the discharges in terms of the frame-
work which the Board has established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and in subsequent cases.
Under this framework, the General Counsel first must establish a prima facie case. Deter-
mining whether the General Counsel has done so entails four steps.
At the first step, the General Counsel bears the burden of showing that employees engaged
in protected activity. As I mentioned, that burden is satisfied by showing that the Respondent
believed the employees had engaged in protected activity at the time it made its decision to take
action against them.
The documents that are in evidence as Respondent’s Exhibit 20(a) through (k) establish that
the Discriminatees did engage in concerted protected activity and, therefore, I find that the
General Counsel has met the first step of the Wright Line test.
At the second step the government must show that the Employer had knowledge of the con-
certed activities. Since these memoranda were given to Ms. Rios, the human resources man-
ager, there is no doubt about that. I find that the Government has met the second Wright Line
requirement.
At the third step there must be a showing of an adverse employment action. In the job set-
ting, firing someone is just about as adverse as it gets. So the government has established the
third step of the Wright Line test.
The final step involves showing a connection or a nexus or a link between the activities that
were protected and the adverse action that resulted. In this case, again, the letters and memos in
Respondent’s Exhibit 20(a) through (k) demonstrate that link, because these were the docu-
ments the managers relied upon in making the discharge decision. So I find that the General
Counsel has satisfied all four steps of the Wright Line test and, therefore, has proven a prima
facie case.
At this point the burden shifts to the Respondent, which can rebut the prima facie case by
showing that it would have made the same decision even if the Discriminatees in question had
not engaged in any protected activities at all.
In the recent case of Lampi LLC, 327 NLRB No. 51 (November 30, 1998) [322 NLRB 222
(1998)], the Board explained that to meet this burden, the Respondent has to make a showing
regarding how it has treated employees in situations which were similar except not involving
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
protected activity. If the evidence shows that the Employer has treated other employees in such
situations in the same way it treated the alleged Discriminatees here, it bolsters a conclusion
that the Employer would have discharged these employees in any case, even if they had not
been engaged in protected activity.
On the other hand, if the Respondent does not show that it has administered the same sort of
discipline to other employees in situations which are similar except not associated with protected
activity, there is little reason to believe that the Discriminatees’ protected activity made no differ-
ence to their fate.
In my view, this is an extremely close case. In evaluating the Respondent’s defense, I must
be careful not to substitute my judgment for that of the Employer.
I do not sit here to say, “Well now, if I had been the boss I would not have fired that person
or if I had been the boss I would have.” It would be highly improper for me to engage in that
kind of reasoning. Instead, I must say, in essence, “Well, no matter what I may think of this
company’s procedures and values as far as the personnel system is concerned, and no matter
what I may think of the employee’s conduct, did the company do the same thing it would have
done in the absence of protected activity?”
There is a lot of evidence that the three Discriminatees would refuse job assignments, and
even when they did not refuse job assignments, that they would give, as we parents say to our
kids, a lot of “backtalk” about how they didn’t want to do the assignments, or how they needed
a man to lift the bag of trash to the dumpster, or ask why aren’t there gloves here, or interject all
sorts of comments that would make it not particularly pleasant to tell them to do work. This
evidence must be considered carefully both to determine the appropriate weight it should
receive, and also to decide which statements made by the alleged Discriminatees fall under the
Act’s protection, and which do not.
The Respondent called a number of witnesses who testified regarding these matters. In
several cases I do not credit their testimony.
In particular, I have difficulty with the testimony of Ms. Carrie Core and Ms. O. T. Hem-
mings. I believe it was Ms. Core who said that she had told Mr. Wiggins that she was ready to
quit, either her lead position or all together. However, Mr. Wiggins, who impressed me as a
reliable witness, said that Ms. Core never made such a statement to him.
Moreover, Ms. Core’s letter to Ms. Rios, Employer’s Exh. 20, does not contain a threat to
quit, although it does state that “it is becoming more difficult to even get oneself prepared to
come to work.”
Ms. Hemmings testified that she had to take an antidepressant because of stress. Undoubt-
edly, workplace stresses probably did aggravate whatever condition she had because that’s
normal for a workplace to be stressful and to do that. But I believe it would be error to con-
clude that the three alleged discriminatees created the need for Ms. Hemmings to take the
antidepressant. Similarly, I believe it would be incorrect to conclude that because Ms. Hem-
mings discontinued taking the antidepressant after the three discriminatees were discharged,
these three employees caused the depression. That reasoning would constitute the fallacy of
post hoc, ergo propter hoc. I do not find the evidence sufficient to establish that the activities of
the Discriminatees drove any particular person to depression.
Both on direct examination by Respondent and cross–examination by the General Counsel,
Ms. Hemmings testified that Fumero, Reyes and Cintron refused to do assigned job duties two
to three times a week. Additionally, on cross–examination Ms. Hemmings added that almost
every time one of these employees refused to perform a job, she would inform the supervisor.
However, when I asked Ms. Hemmings why the employees who refused to perform work
assignments two to three times a week were not given disciplinary write-ups more often, she
answered, in part, “It wasn’t say—let’s not say all the time.” The remainder of her answer
seemed, at best, confusing to me.
The evidence convincingly establishes that Respondent has a compelling financial interest
in cleaning aircraft faster than the time allowed in the contracts with its customers. That is how
it earns bonuses.
On the other hand, Ms. Hemmings’ testimony indicates that the three alleged discriminatees
consistently refused to perform work and that she reported these refusals to supervision. It is
inherently implausible that management, under heavy time pressure, would simply ignore or
tolerate repeated refusals to work.
I discredit the testimony of Ms. Core and Ms. Hemmings. In doing so, I rely in part on my
observations of their demeanor and in part on the fact that if the employees were really refusing
to do the work with the frequency that the leads testified, they would have been subjected to all
sorts of discipline.
The Respondent, in presenting evidence to meet its Wright Line burden of rebuttal, intro-
duced disciplinary records involving other employees. Some of those records dealt with
employees who had refused to do work and consequently received discipline.
Respondent demonstrated a willingness to impose such discipline. So, it is difficult for me
to believe that, considering the pressures Respondent faced in getting these planes clean, that it
would not have been willing to exercise the same disciplinary power if the employees in
question really were refusing to do their jobs.
The sense that I got from the record as a whole was more that these employees complained
about work assignments incessantly, but then they would go ahead and do the work. Now, that
certainly made for a less-than-pleasant working environment. But the complaints, at least to the
extent they involved two or more people or one person speaking on behalf of two or more
people, were protected concerted activity.
Another factor that makes me dubious that the Discriminatees really engaged in the ex-
cesses that some of the leads attributed to them is the fact that there was not a close connection
between instances of misconduct and the discharge.
For example, Mr. Louie Torres testified that on or about February 19, 1998 he was standing on
a ramp training a group of recruits in how to unload the planes. Two of the discriminatees, Blanca
Cintron and Carmen Reyes, were nearby, and Ms. Cintron yelled out in Spanish something to the
effect of, “I want to find out what lies you have been telling these new hires.”
That same day or shortly thereafter Mr. Torres wrote a memo, in evidence as Employer’s Ex-
hibit 19, which stated that he was embarrassed. He sent this memo on up the chain of command.
From his demeanor, I gather that Mr. Torres was testifying truthfully and that he really was
embarrassed. I have no doubt about that.
However, Mr. Torres’ memo was dated February 19th. Ms. Cintron wasn’t discharged until
March 18th and Ms. Reyes was not discharged until March 20th, a month later. It is difficult
for me to believe that their action a month earlier was the precipitating cause of the discharge,
or even contributed to it to any great extent.
Additionally, as General Counsel’s Exhibit 5 evidences, the week before her discharge Ms.
Reyes received an award from the Respondent’s large customer, Continental Airlines, because
of her perfect attendance at work. Again, although it is not entirely inconsistent that she might
receive an award for perfect attendance and yet be disciplined and discharged for refusing to do
work, I find it a little difficult to believe that she would show up punctually every day to work,
and then refuse to do it. It doesn’t form a coherent picture in my mind.
Ms. Fumero had received some disciplinary actions during her employment with Respon-
dent. She testified that during her first week of employment, that is, in late 1994, she was
disciplined for failure to put toilet paper in an airplane lavatory. That was about four years
before the decision to discharge her.
Moreover, the assertion that Ms. Fumero refused to perform work assignments must be
considered together with the testimony of Lead Octavia Hemmings that when other employees
did not wish to clean a lavatory on a plane, Ms. Fumero “would do it for them and then she
would complain that she did too many bathrooms today, but she volunteered to do for them.”
In general, I have doubts about Ms. Hemmings’ testimony and have not credited it.
Additionally, Employer’s Exhibit 4 documents that Ms. Fumero received a warning in
January 1997 for being absent from work without approval. Employer’s Exhibit 21, a computer
print-out prepared more than a year after Ms. Fumero’s discharge, indicates she was late to
work on six days in 1998 and absent from work, due to sickness, two days.
However, the events that subjected certain of the employees to discipline do not appear to
be the events which precipitated their termination. To the contrary, the events which seemed
to precipitate the terminations did not involve the conduct of the employees themselves, so
much as the out-pouring of complaints by the leads.
Now, the Respondent, of course and without doubt, had a
very legitimate interest in seeing that the work was done
smoothly and without delay, and in assuring that the teams
functioned, if not harmoniously, at least efficiently. Moreover,
SIGNATURE FLIGHT SUPPORT 1259
there can be no doubt that constant complaining and friction
would interfere with that efficiency. However, my job is not to
determine whether the Respondent had a justification which
might, to an arbitrator or to an outside observer, seem suffi-
cient. Rather, my job is to determine whether that same reason
would have caused the discharges absent the protected activity.
The fact that the Respondent’s managers did not investigate
the matter or give the Discriminatees a chance to tell their side
concerns me—not because I sit in judgment of the Respon-
dent’s internal procedures because I do not—but because credi-
ble testimony establishes that in the usual case the Respondent
does conduct some investigation and does give the accused
person a chance to state his or her side.
So I must infer from that departure from usual practice that
there was some degree of haste and some intent to eliminate the
complainers rather than address the complaints. Again, what
Respondent chooses to do is its own business and not before
me, except to the extent that the Respondent’s action interferes
with the right of employees to complain in concert, because
such concerted complaints are protected by the Act.
I should address one more point, and that is that not every
statement made by two or more employees in concert enjoys
statutory protection. The law protects concerted complaints
about wages, hours and working conditions, but mere backbit-
ing, name-calling, pettiness and gossip unrelated to the condi-
tions of employment do not fall within that definition.
Perhaps the most vivid evidence of name-calling in this case
is the testimony by two leads that Ms. Fumero made a state-
ment referring to someone of African-American descent as a
“watermelon eater.” Based upon the demeanor of the wit-
nesses, and for the reasons set forth in the oral argument by
General Counsel yesterday, I do not find that Ms. Fumero made
such a statement.
Although I did not credit Ms. Fumero’s testimony because I
thought it was confused and affected by emotion, at the same
time I got the strong impression that she has a driving sense of
what is right and wrong, a sense what might be termed “social
justice.” Similarly, based upon my observations of Ms.
Fumero, I find it very difficult to believe she would ever make
a derogatory racial comment about someone else. So I simply
cannot credit that testimony.
And that leaves me about where I began with the fact that the
leads resented this group of employees for stirring up problems,
including Ms. Fumero going to Mr. Wiggins with the letter,
resulting in Mr. Wiggins calling a meeting where he voiced his
opposition to harassment. So the leads were not disinterested
witnesses; they had an emotional ax to grind as well. There-
fore, I conclude that much of what they said about the backbit-
ing was colored by their personal feelings.
In sum, the case is very, very close. The Employer has a
very strong interest in efficiency of its workforce. And with all
of the civil rights laws on the books it has a very compelling
interest in creating a workplace environment that is free of any
form of harassment. But in this case I do not believe the Em-
ployer’s action showed that it was motivated so much a desire
to create this sort of environment as it was motivated by a de-
sire to stifle the voices of criticism.
Therefore, I find that Respondent violated Section 8(a)(1) of
the Act as alleged in the Complaint, and recommend that the
Board order Respondent to reinstate Blanca Cintron, Judith
Fumero and Carmen Reyes and make them whole, with inter-
est, for all losses they suffered because of Respondent’s unlaw-
ful discrimination against them.
When the transcript in the proceeding is done and served on
the parties and on me, I will issue a Certification of this Bench
Decision, which will include Notice, Order and Remedy of
Provisions.
I will also correct any errors I have made in trying to recite
my Bench Decision from memory after my computer crashed.
The corrected transcript of this bench decision will be attached
as an appendix to the Certification. When the Certification is
served on the Parties that will start to run the time period for
filing exceptions to my decision.
I want to thank the Parties for their professionalism and their
very stimulating advocacy, and tell you it was a pleasure to
hear this case.
The hearing is closed. (Whereupon, at 12:20 p.m., the hear-
ing in the above-entitled matter was closed.)