La Reina, Inc.

1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD La Reina, Incorporated and Martha Ramos. Case 21-CA-23477 26 August 1985 - DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 30 April 1985 Administrative Law Judge Gerald A. Wacknov issued the attached decision. The .Respondent filed exceptions and a supporting brief, and the General Counsel filed limited excep- tions. i The National Labor Relations Board has delegat- ed its authority in this proceeding to a, three- member panel. The Board has considered the decision and the record in light. of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions only to the extent consistent with this Decision and Order.3 ORDER The' National Labor Relations Board orders that the Respondent, La Reina, Incorporated, Los An- geles, California, its officers, agents, successors, and assigns, shall' - 1. Cease and desist from (a) Discharging employees or causing employees to quit because they have given testimony in a pro- ceeding before the National Labor Relations Board. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. • ' - • 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Martha Ramos immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or, privileges previously enjoyed, and make i i In accord with the General Counsel's. limited exceptions; we shall order that the notice to employees be;posted in Spanish and English 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to -overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 a The judge's recommended Order directs the Respondent to cease and desist from unlawfully interrogating and threatening employees -The judge's decision and the record reveal no such actions and, therefore, we shall delete that direction from the Order In addition, while we agree that Ramos' discharge violated Sec '8(a)(4) and ( 1), we find no evidence that it also violated Sec 8(a)(3) Finally, we find it unnecessary to rely on the judge's citation of Kogy's Inc, 272 NLRB 202 (1984) her whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the decision. - (b) Remove from 'its file's any reference to the unlawful discharge and notify Martha Ramos in writing that this has been done and that the dis- charge will not be used against her in any way. . (c) Post at its Los Angeles, California facility copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon. receipt 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 Respondent' to, ensure that the notices are not altered, defaced, or^ covered by any other material. (d) Notify the Regional Director in writing within 20 days from the' date of this Order what steps the Respondent has taken to comply. 4 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge employees or cause em- ployees to quit because they have given testimony before the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights' guaranteed you by Section 7 of the Act. - WE WILL offer Martha Ramos immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings - and other-benefits resulting from her discharge, less any net interim earnings, plus interest. 275 NLRB No. 209 LA REINA; INC WE WILL -notify Martha Ramos that we have re- moved from our files any reference to her dis- charge and that the discharge' will not be used against her in any way. LA REINA,'INCORPORATED DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice, a hearing with respect to this, matter was held before me in Los Angeles, California, on 12 and -13 February 1985. The initial charge was filed on 4 October 1984 by Martha Ramos, an individual Thereafter, on 19 November 1984, the Regional Direc- tor for Region 21 of the National Labor Relations Board issued a complaint and notice of hearing alleging a viola- tion by La Reina, Incorporated (Respondent) of Section 8(a)(1), (3), and (4) of the National Labor Relations Act. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs 'have been received from the General Counsel and counsel for Respondent. On the entire record,' and based on my observation of the witnesses and consideration of the briefs submitted, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a California corporation engaged in the manufacture of flour tortillas, and operates a facility lo- cated in Los Angeles, California. In the course and con- duct of its business operations Respondent annually sells and ships goods and products valued in excess of $50,000 directly to customers located outside the State of Califor- nia. It is admitted and I find that the .Respondent is, and has been at all times material herein; - an employer en- gaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7)' of the Act. ' - - II. THE ALLEGED,UNFAIR•LABOR PRACTICES.- A `The Issue - ' ' The principal issue raised,bv,,the pleadings; is whether Respondent unlawfully terminated Ramos for giving.tes- timony before the Board, or for engaging in union' or other protected concerted activities. • - - iB -The Facts: Martha Ramos was employed by the R'espond'ent from 20 February 1980 until 3 'October- 1984.2'-Ramon was ' The General Counsel's unopposed motion to correct- transcript- is granted 2 All dates or time periods are within 1984 unless otherwise specified 1495 called as a witness and testified adversely to Respondent herein in support of the-allegations of a consolidated complaint at an unfair labor practice proceeding before the Board on 11 September in Cases 21-CA-22993, 21- CA-23042, 21-CA-23069, 21-CA-23148, and 21-RC- 17354.3 Ramos again attended the Board, proceeding on 13 September. Thereafter, because of illness, Ramos was off work until 30 September.- Ramos testified that on' 30, September,. Alphonso Robles, chief of quality control, came by her work sta- tion "at up to three times." On these occasions he would pass by'and then remain nearby for "a little while" ap- pearing to observe her work. This was unusual, accord- ing to Ramos, as Alphonso Robles would customarily pass by her work area "once, no more" during the day, and would not remain to observe. On the following day Ramos again noticed that Alphonso Robles appeared to be spending an inordinate amount of time near her work station and, at. one point, when Ramos was asking a co- worker whether she wanted to get a drink of water, Al- phonso Robles cautioned Robles not to talk because she was distracting the employees. Ramos said she was not keeping her coworker's hands from moving,' but was dust talking to her. Alphonso Robles replied that he was merely advising her not to talk to any coworkers. He had never so warned Ramos at any time prior to this. In the process, of- making tortillas, raw dough will sometimes fall onto, the, floor. • According to Ramos, -it has been the established practice that when this happens the employees will-pick up the dough, examine it, and if it is not dirty or part of it is salvageable, the entire piece of.dough or the salvageable part is-to be placed on a cart for reprocessing. Unsalvageable dough is to be discarded in other containers, located throughout the plant. In addi- tion, Ramos has similarly-seen Alphonso Robles,'and also her supervisor, Juventino Orozco, pick up dough from ,the floor in this ;manner and .place it in the. cart for re- processing. About 1 p.m. on 3 October, ; Ramos. picked up such a piece of dough from the floor, combined it with other dough that had previously, been placed in nearby trays, and 'placed the large ball of dough,- weighing- between 1 and 2 pounds, on the cart. Alphonso Robles approached and picked out some dough from the•cart•'that apparently had some burned flour iinbedded`in it. As'other employ- ees also place dough in the same cart, the dough that Al- phonso Robles selected had -hot' necessarily been placed there by Ramos:: Showing ' her , this: particular - piece; of dough, Alphonso Robles cautioned Ramos that- _when- ever she picked up such-dough, it was not,to -be put back in the' cart 'but should be-thrown in-one-of- the :separate -containers for' discarded' dough Ramos 'said' okay, and Alphonso' Robles put,; the `dough iii the' waste container. The record doe's not otherwise' reflect the issues in the- aforemen- tioned'proceedmgs,'or the nature bf Ramos' testimony - 4 The transcript contains Ramos' testimony as "I answered' hiin-thai"I was not holding my co-wdrke"r's'hands, iliat'I was Just talkmglto her" It should be noted that most of the witnesses to this proceeding -testified through interpreters, and often the translation appears to be quite literal Thus,, the record indicates that Ramos was not intending to be flippant toward Robles, but was merelytelling him th at she was' not interfering with her coworker's production 1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 8 p.m that day, Daniel Robles, vice president of Respondent , and the brother of Alphonso Robles, called Ramos to his office . Alphonso Robles was also present, Daniel Robles said there were problems. Ramos asked whether there was a problem with her , and Robles said that part of the problem was with her and that he also had problems with the others. Daniel Robles said he was giving her a warning to sign because of-the contami- nated dough 'she placed in the cart that afternoon . There- upon he handed her the warning , written in Spanish, and told her, to read it and sign it. Ramos was not given a copy of the warning and testi- fied regarding its content and the ensuing events as fol- lows: Q. Can you tell us what it said? A. Yes, it said Mr. Alphonso Robles saw Mrs. -Martha Ramos pick up dirty dough off of the floor, with that she was contaminating "whoever pur- chased the tortillas and I was violating a La Reina law and rules of public health and he had a number there. That's all it said. Q. Did Mr. Robles say anything to you when you told him you would [not] sign that warning? A. Yes, he told' me if I didn't sign it, he would take other measures. - " • - - So, I asked him what were those and he an- swered to sign -the paper 'otherwise I would punch my card and I wouldn 't have my job anymore: So I wanted to tell him that all the workers did what I have done and he got up- from his chair and he said he didn't care if other people did it or not, to sign the paper or go home, punch my card and go home , that he didn't have anything else to talk to me about Q. So was anything else said at that point? ' A. ' No, I said what's the use. He didn't want to listen, what could I do. I was not going to sign the paper. -Q Did you punch out then? A. I left the office and I went to where my purse was and Daniel kept following me up to where my purse was. He went back with me and I went to -punch my card out. He followed me. He followed me all the way up until I left, excuse me, went out- side.. Edel C. Cruz is currently employed by Respondent. Cruz was working only about 3 or 4' feet away from Ramos 'on '3 October and witnessed the aforementioned incident. Ramos, according to Cruz, picked picked up a small amount of dough that had -fallen on the floor between the trays . She then combined it with other dough from the trays and deposited the quantity of dough in the cart. At this point Alphonso Robles approached her and told her not to mix the dirty dough with the clean dough. Ramos said' okay Cruz corroborated Ramos' testimony -regarding the practice of salvaging dough that falls on the floor: If there is a substantial amount . of dirt on the dough, it is to be thrown away, otherwise, it is to be placed with the clean dough for- reprocessing. He has seen Alphonso Robles salvage dough: in this manner. Cruz further testified that upon Ramos' return to work on 30 September, Alphonso Robles would appear to be checking the machine near Ramos' work station more frequently than was his past practice. Maria Ramos, no relation to the Charging Party, is a former employee of Respondent on a leave of absence as of 1 February 1985, and has worked for the Respondent over a 9-year period . `She corroborated the- testimony of Cruz and Martha Ramos regarding the policy of salvag- ing-reusable dough that has fallen on the floor, testifying that it is a common practice not only of all the employ- ees but of the supervisors too. Maria Ramos is involved in the consolidated Board proceeding described above. Employee Beatriz Sanchez , who worked for Respondent from June '1973 to 22 January 1984, testified similarly. Sanchez is also a charging party in the aforementioned Board proceeding, and is apparently alleged as a dis'cri- % minatee therein. - John Williams, director of the food and milk program for the Los Angeles County Department of Health Serv- ices, is responsible for the routine inspection of all food manufacturing and processing plants in Los Angeles County. Williams testified on-behalf of Respondent that if a food manufacturer reprocessed dough which had fallen on the floor, regardless of whether the dough was clean or dirty, the manufacturer would be cited and ad- vised to cease and desist from that practice immediately. Juventino Orozco , a foreman, testified on behalf of Re- spondent- that under no circumstances is dough to be re- processed after it has fallen on the floor . Rather it is to be discarded . Employees Zarina Morales and Clemencia Arroyo, also called as witnesses by the Respondent , testi- fied similarly. Alphonso Robles, chief of quality control, testified that his duties take him throughout the production area, and that he is responsible for ensuring that the machinery5 is operating correctly and that the employees are properly performing their jobs. Alphonso Robles was not asked, and therefore did not specifically deny, that he was closely observing Ramos on her return to work, or that he warned her about talking to her coworker . Thus, the Respondent has proffered - no denial or explanation for Alphonso Robles' apparent preoccupation with Ramos on her return to work. Alphonso Robles testified , gener- ally,' that on 3 October, at some unspecified time, he ob- served Ramos picking up "something" (purportedly a piece of dough with a dirty rag imbedded in it, infra) from the floor and "deliberately " placing it in the cart containing dough for reprocessing. He pulled out the dough from the cart, showed it to Ramos, and said, "Do you see what you did . . . . This is dangerous " Ramos simply shrugged and smiled. Thereupon, he "immediate- ly" reported the matter to Daniel Robles. During the subsequent conversation in Daniel Robles' office, according to Alphonso Robles, "Daniel made her understand that it was very dangerous for the business," and told her something to the effect that "you are put- ting me in a position that is very difficult. We cannot 5 Apparently there are 12 production lines, each with similar equip- ment for producing tortillas 6 The record testimony of Alphonso Robles is abbreviated and not en- tirely clear LA REINA, INC take the risk with you. . . Either you sign it [the warn- ing notice] or -you will have to punch your card." Ramos replied, "I would rather go." - , Daniel Robles testified that he,presented Ramos with the -following written notice which he prepared about 6:30 or 7 p.m., shortly after Alphonso Robles reported the matter to him and brought him a quantity of dirty dough with a rag imbedded in it. The notice, translated from,Spanish, states as follows: Madame Martha R. Marquez' was apprehended by Mr. Alfonso Robles (Controller of Quality) disobey- ing Rule No. 15 of La Reina, Inc Picking up dough from the floor (dirty and contaminated) in which there was a piece of rag and she put this in the clean dough for production. This is contrary to safety of the public consumer. /s/Daniel Robles Mrs. Martha R Marquez Chief of Personnel Mr. Daniel "Robles Further, Daniel Robles testified that he showed Ramos the dough containing the dirty rag, and that Ramos ad- mitted "she had committed that act, the mischievous act." However, Daniel Robles denied that he terminated Ramos. Rather, Ramos refused to sign the warning and said she would rather leave. She also said, although Daniel Robles testified that he heard this only "faintly," that he should "'pay attention carefully to what you're doing. This can bring you some consequences." JUDGE WACKNOV: Okay. Now, with regard to Martha Ramos, when you saw this dough with the rag in it, did you believe that she placed it there in- tentionally? THE WITNESS: Of course, yes, sir, that is what I thought. JUDGE WACKNOV- For what purpose would she place it there intentionally, did you believe? THE WITNESS: As that had happened, that bad thing, that loss with this Company8-I had to think first, immediately,' to the thought, she has the inten- tion to harm us JUDGE WACKNOV So, you believed she placed this rag in the dough intentionally- THE WITNESS Yes, sir JUDGE WACKNOV:-to cause the Company liabil- ity? THE WITNESS: Of course, yes, I do believe it, and she is capable of more, that person. JUDGE WACKNOV: And what reason do you think that she had to harm the Company? THE WITNESS' I would like to repeat again, per- haps someone counseled badly. I don't know-very Apparently Martha Ramos is sometimes referred co as Martha Mar- quez a Robles was referring to the fact that in 1983 Respondent's insurance carver paid a liability claim to one of Respondent's customers for food contamination in the amount of 533,743 Robles believed this contamina- tion was a deliberate act by "a person badly counseled, perhaps out of his own thoughts " 1497 unstableness in the multitude there They are quite unstable. They operate on the basis of their own things. They are mischievous between companions, to each other. Sometimes they do harm, also, to the Company, with all intentions. JUDGE WACKNOV. Martha Ramos had worked there for about four-years, is that correct? THE WITNESS: I believe so, yes. JUDGE WACKNOV: Did -you have any problems with her during those four years? - THE WITNESS: At the beginning, no, sir. This began' days afterward. The more her companions were gathering up and then their unstableness. - JUDGE WACKNOV. About what period of time did this begin? THE WITNESS: It could be two years back Analysis and Conclusions Respondent takes the position that Martha Ramos quit her employment rather than sign a warning slip which accused her of picking up dough contaminated with dirt in'which a rag was imbedded, which she then combined with clean dough for reprocessing. Moreover, both Al- phonso and Daniel Robles believed that this' was a delib- erate and intentional act undertaken by Ramos to cause Respondent to incur liability or loss of customers. Indeed, Daniel Robles testified that Ramos admitted that she had committed "the mischievous act." Further, Daniel Robles clearly admitted that Ramos was not ter- minated for refusing to sign the warning. He also admit- ted, inconsistently with his contention that- Ramos quit and was not discharged, that Ramos was terminated for her act of mischievousness. I do not credit the testimony of Daniel Robles and I conclude that Respondent's "dirty rag defense" is fabri- cated of whole cloth. The record is devoid of evidence showing that Ramos had been other than a-satisfactory employee during her nearly 5 years of employment; nor does the record demonstrate that she harbored animosity toward Respondent Moreover, it defies credulity that Daniel Robles would give Ramos the option of signing a warning rather than simply summarily dismissing her for what he deemed to be a deliberate and unconscionable act intended to cause Respondent substantial adverse re- percussions . Indeed, according to Daniel Robles, this conduct was sufficiently serious to have warranted clo- sure of the plant by the Department of Health Services. Under the circumstances described by Daniel- Robles it is inconceivable that he would procrastinate from 1 until 8 p.m., as I find, infra, before summoning her to the office for discipline, thereby giving her the entire shift to con- tinue her "mischievousness "- Finally, the testimony of .Alphonso Robles does not corroborate that of Daniel Robles. Thus, 'Alphonso Robles, during his abbreviated account of the discharge meeting, did not testify that Ramos was accused of any deliberate act of sabotage and, most significantly, failed to corroborate Daniel Robles' testimony that Ramos specifically admitted en- gaging in such clearly unpardonable behavior. I credit the testimony of Martha Ramos, Maria Ramos, Beatriz Sanchez, and Edel Cruz. It is particularly note- 1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worthy that Cruz is a current employee who has not been shown to have any reason to fabricate his testimony and under such circumstances it is unlikely that his ac- count of Respondent's practice is deliberately false. See Heritage Nursery Homes, 269 NLRB 230 (1984); Federal Stainless Sink, 197 NLRB 489, 491 (1972); Gateway Transportation Co., 193 NLRB 47, 48 fn. 12 (1971). Thus, I find that the Respondent has established - the longstand- ing and customary procedure whereby dough which has fallen on the floor, provided it is not dirty or otherwise unsalvageable, is to be combined with other dough for reprocessing . I further 'find that, as the aforementioned employees so testified, this common work practice is a normal part of the employees' daily routine, and the em- ployees are merely following the identical examples of their supervisors in this endeavor I do not credit those current employees, called as witnesses by Respondent, who testified to the contrary . Moreover, the testimony of John Williams of the Los Angeles County Depart- ment of Health Services , who testified that this practice would be contrary to applicable health and sanitation rules governing Respondent's business, does little to es- tablish what actually occurs at Respondent 's facility when food and health inspectors are not present. I credit the testimony of Ramos, corroborated by the credible testimony of Cruz , and find that she was warned by Alphonso Robles for an alleged rule infraction about 1 p.m. on 3 October . Thereafter, about 8 p.m., she was called to Daniel Robles' office-and ordered , on threat of discharge, -to sign a warning letter for engaging in .the theretofore-customary and established work practice of combining salvageable dough which has fallen to the floor- with other dough for reprocessing. Thus, the record establishes , and I find, that during the 4 days following her return to work after testifying con- trary to Respondent 's interests in a consolidated Board proceeding, Robles was subjected to -surveillance; her conduct ' was carefully monitored to the extent that she was cautioned ' about - even speaking to. any of her' co- workers; she was unjustifiably reprimanded for picking dough off the floor; and she was thereafter ordered to sign a -document which accused her of contaminating the food product by picking dough off the floor for reproc- essing rather than , as Respondent contends , for also plac- ing a dirty rag in such dough . Moreover, she was told to sign the bogus warning on threat of discharge ,. clearly contrary to Respondent 's admitted past practice of per- mitting employees to refuse to sign warning notices with impunity. ' , - I am convinced " that the continual harassment of Ramos was for the purpose of removing` her from Re- spondent's employ , either by terminating her or- causing her to quit. It is clear that , had Ramos not 'quit, she would have, been terminated. Thus, Daniel Robles : did not testify that Ramos would not have been terminated had she signed the warning. Rather , he clearly admitted that the alleged offense of contaminating the. food prod- uct warranted her. discharge,, thereby, indicating that her discharge was- a foregone - conclusion regardless 'of whether or not she signed the notice . On the basis of the foregoing, I find-that the working conditions imposed on Ramos.were so difficult and unpleasant as to force her to resign, and that this was Respondent's intention. More- over, it is clear that, had Ramos signed the warning, she nevertheless would have been terminated forthwith. Retaliation against Ramos because of her testimony at the Board hearing and/or because of her-support of the Union or employees involved therein is the only possible rationale explaining Respondent 's persistent and blatant harassment of Ramos. Therefore I find that Ramos was terminated -or constructively discharged in violation of Section 8(a)(1), (3), and (4) of the Act, as alleged. See Kogy's Inc., 272 NLRB 202 (1984); Great Southern Con- struction, 266 NLRB 364, 374-375 (1983); Hoern'er Wal- dorf Corp., 227 NLRB 612 (1976); Algreco Sportswear Co., 271 NLRB 499 (1984). CONCLUSIONS OF LAW- ' 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent has violated Section 8 (a)(1), (3), and (4) of the Act, by discharging or constructively discharging employee Martha Ramos for giving testimony under the Act, in •a prior Board proceeding, or for engaging in other union or protected concerted activity - 3. The aforesaid unfair labor practices are unfair labor • practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent ,violated and is violat- ing, Section 8(a)(1), (3), and (4) of the Act, I recommend that it be required to cease and desist therefrom and from in any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, and take cer- tain affirmative actioii ' described 'herein, it cludmg the posting of an appropriate notice' Having found that Respondent -unlawfully discharged and thereafter failed and refused - to reinstate employee .Martha Ramos, it is recommended that Respondent offer 'her immediate reinstatement to her former position with- out loss of seniority or other benefits and make her whole, with interest, for any- loss of, pay,she may have suffered as a result of 'the discrimination against her. Backpay is to be computed iii' the manner; prescibed in F. W Woo'lworth Co., 90 NLRB 289 1(1950), and Florida Steel Cor`p.1- 231 NLRB` 651 (1977) - See generally Isis Plumbing Co, 138 NLRB 716 (1962).- IT.•IS` ,FURTHER RECOMMENDED ' that iRespondent ex- punge from its ' records' any, reference to; the. foregoing unlawful discharge .and advise Martha Ramos that ,it has done so. See Sterling Sugars, 261 NLRB 472-(1982) [Recommended Order omitted from publication.]