American Federation of Teachers New Mexico, AFL-CIO

National Labor Relations Board - Board Decisions

Feb 28, 2014

360 N.L.R.B. 438 (N.L.R.B. 2014)

438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 59
American Federation of Teachers New Mexico, AFL–
CIO and Andrew Lotrich
American Federation of Teachers New Mexico, AFL–
CIO and American Federation of Teachers Joint
Employers and James D. Beaty. Cases 28–CA–
064412 and 28–CA–074397
February 28, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On September 25, 2012, Administrative Law Judge
Margaret G. Brakebusch issued the attached decision.
The General Counsel filed exceptions, a supporting brief,
an answering brief, and a reply brief. The Respondent
filed cross-exceptions, a supporting brief, an answering
brief, and 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,2 as

1 The General Counsel and the Respondent have excepted to some
of the judge’s credibility findings. 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 exam-
ined the record and find no basis for reversing the findings.
2 The judge found that AFT-NM (hereafter referred to as the Re-
spondent) violated Sec. 8(a)(1) both by denying employee Andrew
Lotrich’s request for representation by IAM Local 794 during an inves-
tigatory interview, and by conducting the interview even though the
Respondent had denied the request. We agree with the judge that the
Respondent violated Lotrich’s rights to union representation, as set
forth in NLRB v. J. Weingarten, 420 U.S. 251 (1975), but we find just a
single violation for the entire incident.
We note that there are no exceptions to the judge’s dismissal of the
allegation that the Respondent violated Sec. 8(a)(3) by laying off Lot-
rich. Because we affirm the judge’s dismissal of the allegations as to
Lotrich’s subsequent suspension and discharge, we find it unnecessary
to pass on the Respondent’s contention that Lotrich engaged in postdis-
charge misconduct that would in any event make him ineligible for
backpay and reinstatement. We also find it unnecessary to pass on the
judge’s dismissal of the allegation that the Respondent’s president,
Christine Trujillo, violated Sec. 8(a)(1) by threatening Lotrich with
unspecified reprisals by telling him that the Respondent accomplished a
lot at the bargaining table when he did not engage in union activities,
and the judge’s findings that the Respondent’s executive vice president,
Kathy Chavez, violated Sec. 8(a)(1) by interrogating Lotrich about his
union activity and by creating an impression that employee Tiffany
Fiser’s union activities were being monitored. Finding violations based
on these incidents would be cumulative of other violations found and,
as such, would not materially affect the remedy.
We further find, contrary to our dissenting colleague, that the judge
correctly found that the Respondent violated Sec. 8(a)(1) by maintain-
ing an overbroad provision in its collective-bargaining agreement with
the Union that prohibits participation in the Respondent’s “internal
modified,3 and to adopt the recommended Order as modi-
fied4 and set forth in full below.5

politics,” including “the lobbying of AFT-NM Executive Council
members on any items that are likely to come before them to be voted
on including personnel matters.” Even in the context of the entire
provision, employees would reasonably understand the provision’s
ambiguous reference to “lobbying . . . on personnel matters” as encom-
passing concerted efforts to influence AFT-NM’s leadership on issues
implicating terms and conditions of employment: e.g., complaints about
management personnel; decisions involving hiring, promotion, or dis-
cipline; or questions of union representation and collective bargaining.
Cf. Hyundai America Shipping Agency, 357 NLRB 860, 871 (2011)
(finding unlawful employer rule prohibiting disclosure of information
from “personnel files” because prohibition would reasonably include
“discussions of wages and salary information, disciplinary actions,
performance evaluations, and other information”). Faced with such
ambiguity, employees might well err on the side of caution—given the
related directive that breach of the provision is grounds for discharge—
and refrain from engaging in Sec. 7 activity. As the judge found, the
fact that the Union negotiated this provision does not by itself make it
lawful, because the provision would reasonably be read to restrict Sec.
7 rights that the Union had no statutory authority to waive.
Member Johnson would reverse the judge and dismiss the allegation
that the Respondent violated Sec. 8(a)(1) by maintaining a rule in its
collective-bargaining contract with IAM Local 794 prohibiting em-
ployees in the bargaining unit represented by that union from engaging
or being asked to engage in the internal politics of the Respondent. On
its face, this negotiated provision is intended to prevent IAM Local 794
and employees it represents from interfering with the internal politics of
another union, the employer Respondent AFT-NM, including issues
relating to the Respondent’s selection and retention of officers and
representatives. Employees would not reasonably view this restriction
as interfering with their Sec. 7 rights to raise issues relating to their own
terms and conditions of employment with the Respondent, including
doing so by lobbying the Respondent’s executive council members.
Consistent with the view that the contractual rule was lawful, Member
Johnson would find that Chavez’ limited questioning of Fiser and Lot-
rich about possible violations of that rule did not constitute coercive
interrogation. See Fresenius USA Mfg., 358 NLRB 1261, 1263 (2012),
and Bridgestone Firestone South Carolina, 350 NLRB 526, 528 (2007).
3 We reverse the judge and dismiss the allegations that the Re-
spondent violated Sec. 8(a)(1) by oral promulgation of overbroad and
discriminatory rules in statements made by Chavez and Trujillo in
separate one-on-one conversations with Lotrich. The record fails to
show that these statements—that Lotrich had no right to call for a no-
confidence vote during a union meeting, that he was being too vocal at
the bargaining table, and that the parties accomplished a lot in negotia-
tions when he was not present—were communicated to any other em-
ployees or would reasonably be construed as establishing a new rule or
policy for all employees. See, e.g., Flamingo Las Vegas Operating
Co., 359 NLRB 873, 874 (2013) (dismissing allegation that statement
directed solely at one employee and communicated to no other employ-
ee was an unlawful promulgation of a new rule); St. Mary’s Hospital of
Blue Springs, 346 NLRB 776, 776–777 (2006) (supervisor’s comments
reprimanding one employee could not reasonably be interpreted as
establishing new work rule).
4 Respondent American Federation of Teachers New Mexico (AFT-
NM) is the State affiliate of Respondent American Federation of
Teachers (AFT). The General Counsel has not excepted to the judge’s
dismissal of the allegation that AFT and AFT-NM refused to hire em-
ployee James Beaty in violation of Sec. 8(a)(3) of the Act. This is the
only complaint allegation against AFT. However, the judge’s recom-
TEACHERS AFT NEW MEXICO 439
ORDER
The National Labor Relations Board orders that the
Respondent, American Federation of Teachers New
Mexico, AFL–CIO, Albuquerque, New Mexico, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Creating an impression among its employees that
their union activities are under surveillance.
(b) Interrogating employees about their union activity.
(c) Threatening employees with unspecified reprisals
because they engage in union activity.
(d) Denying the requests of employees for union repre-
sentation during investigatory meetings which they rea-
sonably believe may result in discipline.
(e) Maintaining overly-broad and discriminatory col-
lective-bargaining agreement provisions that prohibit
employees from engaging in union and other protected
concerted activities, including lobbying members of the
Respondent’s executive council about personnel matters.
(f) In any like or related manner interfering with, re-
straining, 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) Notify International Association of Machinists &
Aerospace Workers, AFL–CIO, Local Lodge 794 (IAM)
that it will not enforce section 8.1 of the collective-
bargaining agreement with that union.
(b) Within 14 days after service by the Region, post at
its Albuquerque, New Mexico facility, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
28, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, the notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by

mended Order is directed to both Respondents. We shall amend the
Order to refer only to Respondent AFT-NM.
5 We shall modify the judge’s recommended Order to conform to
our findings herein, and we shall substitute a new notice to conform to
the Order as modified and to the Board’s standard remedial language.
6 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.”
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since April 2011.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT create an impression among you that your
union activities are under surveillance.
WE WILL NOT interrogate you about your union activi-
ty.
WE WILL NOT threaten you with unspecified reprisals
because you engage in union activity.
WE WILL NOT deny your requests for union representa-
tion during investigatory meetings which you reasonably
believe may result in discipline.
WE WILL NOT maintain overly-broad and discriminato-
ry collective-bargaining agreement provisions that pro-
hibit you from engaging in union and other protected
concerted activities, including lobbying members of our
executive council about personnel matters.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL notify International Association of Machin-
ists & Aerospace Workers, AFL–CIO, Local Lodge 794
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(IAM) that we will not enforce section 8.1 of our collec-
tive-bargaining agreement.
AMERICAN FEDERATION OF TEACHERS NEW
MEXICO, AFL–CIO
Florence I. Brammer, Esq., for the Acting General Counsel.
Robert D. Fetter, Esq. and Keith D. Flynn, Esq., of Detroit,
Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Albuquerque, New Mexico, on May 22,
23, 24, and 25, 2012. Andrew T. Lotrich (Lotrich) filed a
charge1 in Case 28–CA–064412. Lotrich filed a first amended
charge on November 17, 2011, and a second amended charge
on November 23, 2011. James D. Beaty (Beaty) filed a charge
in Case 28–CA–074397 on February 13, 2012. Beaty filed a
first amended charge on April 9, 2012, and a second amended
charge on April 18, 2012. Based on the allegations contained
in Cases 28–CA–064412 and 28–CA–074397, the Acting Gen-
eral Counsel2 (the General Counsel) issued an order consolidat-
ing cases, consolidated complaint, and notice of hearing on
April 18, 2012.
The consolidated complaint alleges that American Federa-
tion of Teachers New Mexico, AFL–CIO (AFT-NM) during the
time period from early May through October 18, 2011, engaged
in various actions in violation of Section 8(a)(1) of the National
Labor Relations Act (the Act.) Additionally, the consolidated
complaint alleges that AFT-NM violated Section 8(a)(3) of the
Act when it subjected Lotrich to lay off and refused to grant
Lotrich’s request to transfer to another bargaining unit position
on about August 17, 2011. Additionally, the consolidated
complaint alleges that AFT-NM violated Section 8(a)(3) of the
Act by terminating Lotrich on September 1, 2011. Further-
more, the consolidated complaint alleges that AFT-NM con-
ducted a disciplinary interview with Lotrich after denying him
the benefit of union representation.
The consolidated complaint additionally alleges that at all
material times, AFT-NM and the American Federation of
Teachers (AFT) are joint employers of the organized employ-
ees of AFT-NM. Specifically, however, only one allegation in
the consolidated complaint relates to the conduct of AFT and
that complaint section alleges that about November 16, 2011,
Respondents AFT and AFT-NM refused to hire Beaty in viola-
tion of Section 8(a)(3) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondents, I make the fol-
lowing

1 All dates are in 2011, unless otherwise indicated.
2 For brevity, references to the Acting General Counsel will be cited
as the General Counsel.
FINDINGS OF FACT
I. JURISDICTION
AFT-NM, a New Mexico nonprofit corporation affiliated
with Respondent AFT, with an office and place of business in
Albuquerque, New Mexico, has been engaged in organizing
unrepresented employees and representing its members and
other employees in collective bargaining with various employ-
ers concerning wages, hours, and other terms and conditions of
employment. AFT-NM has been chartered by, and has been an
integral part of AFT, a multistate labor organization that main-
tains its national headquarters in Washington, D.C. During the
12-month period ending September 12, 2011, Respondent AFT-
NM collected fees and dues and initiation fees in excess of
$500,000 and remitted from AFT-NM’s facility in excess of
$50,000 in dues and fees to AFT’s facility located in Washing-
ton, D.C.
Respondents AFT and AFT-NM admit, and I find that they
are employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Furthermore, I find that
the International Association of Machinists & Aerospace
Workers, AFL–CIO, Local Lodge 794 (the Union) and AFT-
NM Collective-Bargaining Organizing Project Staff Associa-
tion (CBOPSA Union) are labor organizations within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Description of Respondents’ Operations
Respondent AFT is a national union representing primarily
schoolteachers and support staff. Respondent AFT-NM is the
State affiliate of AFT and represents approximately 29,000
employees in 30 bargaining units in the State of New Mexico.
During the time period that is relevant for this proceeding,
Christine Trujillo (Trujillo) served as the State president for
AFT-NM, as well as a national vice president for AFT. Kathy
Chavez (Chavez) also served as an AFT national vice president
working out of the Albuquerque AFT-NM office as well as
executive vice president for AFT-NM. Trujillo and Chavez
were two of approximately 50 elected national vice presidents
for AFT.
In approximately August 2011, AFT-NM implemented a
staff restructuring and reorganization. Just prior to the restruc-
turing, AFT-NM employed five field representatives, six organ-
izers, and an administrative assistant. There was one additional
position identified as State affiliate political organizer (SAPO)
that was vacant at the time of the restructuring. Charging Party
Andrew Lotrich (Lotrich) was employed as one of the five field
representatives and Charging Party James Beaty (Beaty) was
one of the six organizers that worked for AFT in what was
termed the Collective-Bargaining Organizing Project (CBOP.)
CBOP was a national program of AFT that was created to pro-
vide individual State organizations with needed assistance in
organizing their membership. It was funded by the AFT, as
well as from contributions from individual members. AFT-NM
worked with the national AFT field representative who oversaw
the project. In August 2011, Matt Aber-Towns was the AFT
national representative who oversaw the CBOP program and
TEACHERS AFT NEW MEXICO 441
Jennifer Kaseman was AFT’s regional director for the south-
west and mountain region.
Lotrich was represented by the International Association of
Machinists & Aerospace Workers, AFL–CIO, Local Lodge 794
(IAM Local 794)). Beaty was represented by the Collective
Bargaining Organizing Project Staff Association (CBOPSA).
Counsel for the Acting General Counsel asserts that AFT-NM
discriminated against Lotrich because of his activities in sup-
port of the IAM and that AFT-NM and AFT discriminated
against Beaty because of his activities in support of the IAM
and CBOPSA.
B. The 8(a)(1) Allegations Unrelated to Discipline
The consolidated complaint alleges that during April, May,
and June 2011, AFT-NM engaged in a number of violations of
Section 8(a)(1) of the Act. These allegations are addressed
below in the chronological order of the events surrounding the
alleged violations. All of these allegations relate to incidents
involving Andrew Lotrich.
1. Lotrich’s union activities
Lotrich was initially hired by AFT in January 2004 as a
CBOP organizer. In August 2004, Lotrich became a staff rep-
resentative for AFT-NM. During the time that Lotrich worked
as a CBOP organizer, there was no bargaining representative
for the CBOP organizers. Lotrich’s duties as a staff representa-
tive included external organizing, or growing, or building new
locals as well as internal organizing that involved building up
numbers for existing locals. He was also involved in grievance
handling, arbitrations, and contract negotiations. Lotrich testi-
fied that he was not only involved in legislative lobbying at the
New Mexico State legislative sessions, but he also trained
AFT-NM locals on how to lobby their legislators. In addition
to his other duties, Lotrich served as the lead organizer for a
program identified as the Early Childhood Organizing Project
(ECOP) that began in 2009.
When Lotrich became a staff representative in August 2004,
there was an employer-recognized staff union that was not affil-
iated with any national labor organization. In 2008–2009, the
employees chose to be represented by the IAM in an NLRB
conducted election. Lotrich served as one of three employees
who served on the negotiating team from 2010 to 2011. At the
time of his termination in September 2011, the parties were
scheduled to return to the bargaining table after AFT-NM had
failed to ratify an earlier reached tentative agreement. The
Respondents were represented in bargaining by Trujillo and by
AFT Regional Director Jennifer Kaseman.
2. Complaint paragraph 5(a)
Complaint paragraph 5(a) alleges that about April or early
May, Respondent, acting through Kathy Chavez, created an
impression among AFT-NM’s employees that their union activ-
ities were under surveillance, threatened employees about their
union activities, and threatened them with unspecified reprisals
because they engaged in union activities.
a. Trujillo’s April 18, 2011 staff meeting
Prior to April 18, 2011, Trujillo told her staff that there were
shortfalls in membership and she urged her staff to increase
organizing efforts. At the end of a regularly scheduled staff
meeting on or about April 18, 2011, Trujillo became tearful and
talked again about the membership shortfalls. She speculated
that the membership shortfall was so severe that AFT-NM
would probably not be able to make payroll. She told her staff
that rather than laying off any of her staff, she would sacrifice
her position and resign. Employee and staff member Joe Hill
testified that Trujillo had been their “rock” and they were not
accustomed to seeing her cry. In describing the employees’
response to Trujillo’s announcement, Lotrich recalled, “It hit us
like a ton of bricks.”
At the conclusion of the meeting, Lotrich asked Trujillo if
the employees could have an internal staff meeting to discuss
her announcement and she agreed. At the beginning of the
meeting, Lotrich expressed his concern about the direction in
which AFT-NM had been headed and he made a motion to hold
a no-confidence vote for Kathy Chavez. In support of his mo-
tion, he mentioned that Chavez had health issues and that she
was hardly ever in the office. Lotrich told the other employees
that the motion would ensure that Chavez would not take over
as president in Trujillo’s place. Hill recalled that he told Lot-
rich that the staff didn’t want to entertain that idea. Hill told
Lotrich that the staff wanted to focus on saving Trujillo’s job
and not voting against Chavez. Staff member Eleanor Chavez
quickly responded to Lotrich by saying that the no-confidence
vote was too big a step to take and that they needed to talk
about the different options available to them. Staff members
Hill and John Ingram also agreed that they needed to discuss
possible options to Trujillo’s resignation because of the finan-
cial situation. As Lotrich testified, the motion for the no-
confidence vote “went nowhere” and was never discussed again
by the staff.
Neither the Respondent nor the General Counsel presented
evidence or called witnesses to explain with any specificity
what was actually encompassed by a “no-confidence vote.” At
the conclusion of the re-cross-examination of employee Joe
Hill, I asked the witness to explain what would have been the
implications and result, had the employees followed through on
the no-confidence vote. Hill responded that he had “no idea.”
Hill acknowledged that even if the employees in the union
meeting had voted “no-confidence” for Chavez, he didn’t know
what the employees could have done. The witness provided no
further information in response to my questions. In followup to
my questions, counsel for Respondents asked Hill additional
questions about the implications of a no-confidence vote, how-
ever, Hill responded that he was confused by the question.
Although counsel for the Respondent attempted to elicit testi-
mony from the witness concerning the possible effect on AFT-
NM locals if they learned of a no-confidence vote for Chavez
by the IAM-represented employees, Hill simply responded that
the locals had their own opinion of Chavez, adding, “I wouldn’t
ask that, if I was you.” Thus, inasmuch as there was no clear
explanation from Hill and no other witnesses were presented to
explain the repercussions of the no-confidence vote, the evi-
dence is inconclusive as to the ultimate significance of the no-
confidence vote.
During the internal union staff meeting, the employees dis-
cussed various ways that they could help to reduce expenses
442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
including their taking a voluntary salary reduction of 12 to 16
percent; a reduction in insurance benefits; a reduction in the
Albuquerque Teachers Foundation rebate; as well as the feasi-
bility of bringing the CBOP organizers into the AFT-NM staff
and thus eliminating the need for the separate CBOP program.
After the meeting, Lotrich, Hill, and Eleanor Chavez met with
Trujillo to share their ideas. Eleanor Chavez began the meeting
with Trujillo by telling her how much they valued her and that
they did not want to lose her. Lotrich then explained the cost-
saving options that the employees had discussed in their inter-
nal staff meeting. After Lotrich explained the savings from
each of the proposed options, Trujillo tearfully thanked the
three employees. She told them that their support really meant
a lot and she hugged each employee as they left her office.
b. The meeting with Kathy Chavez
Although Chavez did not attend the April 18, 2001 staff
meeting, another person from Chavez’ office was present to
take notes for Chavez. The following day, employee John In-
gram approached Chavez and told her that she should know
that there had been a union meeting called by Lotrich the previ-
ous day. Ingram told her that during the meeting, Lotrich pro-
posed to have a “vote of no confidence” against her in order to
save Trujillo’s job. Chavez admitted that she was upset and she
told Ingram that Lotrich could not do that. Chavez testified that
she felt that such an action was ridiculous and outrageous be-
cause the IAM collective-bargaining agreement prohibited
employees from interfering with the internal affairs of AFT-
NM. A few days later Chavez asked employee Tiffany Fiser if
Ingram’s account of the union meeting was correct and Fisher
confirmed that it was. After a few more days, employee Judy
Johnston also approached Chavez and asked her if she was
aware of Lotrich’s proposal on the “vote of no confidence.”
After first advising Trujillo of her intentions, Chavez called
Lotrich for a meeting in her office. The meeting was attended
by Lotrich, Trujillo, Chavez, and Joe Hill, who was present as
Lotrich’s union representative. Lotrich testified that on the
same day of the union meeting, he received an email from Ad-
ministrative Assistant Liz Gravning immediately summoning
him to Chavez’ office. He testified that because he was out of
the office at the time, the meeting was rescheduled to the fol-
lowing morning. Both Chavez and Hill recalled, however, that
the meeting with Chavez occurred approximately a week after
the union meeting. Their testimony in this regard appears to be
more accurate. Hill credibly testified that at the time of the
meeting, Ernest Dow was the IAM representative for the AFT-
NM employees. Because Dow was not available to attend the
meeting, arrangements were made for Hill to stand in as Lot-
rich’s representative. Hill recalled that these arrangements
were worked out after telephone calls between Trujillo and Hill
as well as between Lotrich and Hill. Thus, the time line identi-
fied by Hill and Chavez appears more reasonable.
Chavez began the meeting by stating that she had heard a
rumor that the staff had held a “vote of no confidence.” Hill
recalled that Lotrich blurted out, “Who told you? John In-
gram?” Chavez recalled that she had been very angry and that
she told Lotrich: “How dare you do this to me Andy.” Chavez
told Lotrich that she didn’t appreciate it and that he could not
do this because it was illegal and against their contract. Lotrich
recalled that when Chavez told him “how dare you call a no-
confidence vote on me,” he asked her if she were directing him
to divulge what occurred in a protected internal union meeting.
Trujillo also testified that she took the position during the meet-
ing that any questioning about the union meeting was unlawful
and that she in fact threatened to leave the room if Chavez con-
tinued the questions. Trujillo testified that although Chavez
attempted to ask questions about what happened at the union
meeting, either Lotrich or Hill responded that they could not
answer because the union meeting was protected activity.
Hill recalled that he asked Trujillo if the meeting was a dis-
ciplinary meeting and Trujillo confirmed that it was not. Hill
suggested that Lotrich and he speak alone outside the meeting.
During their conversation, Hill told Lotrich that because it was
not a disciplinary meeting, they didn’t have to answer anything.
Hill recalled that once Lotrich and he returned to the meeting,
Chavez threatened to “nip the matter in the bud” and threatened
that she would get even with Lotrich. Both Chavez and Trujillo
confirmed to Lotrich and Hill that no disciplinary action was
going to be taken.
c. Findings concerning paragraphs 5(a)(1), (2), and (3)
Chavez first learned what happened at the union meeting
from a conversation initiated by Ingram. She also recalls that a
few days later, she initiated a conversation with employee Tif-
fany Fiser and specifically inquired about what occurred during
the union meeting. Chavez admits that Fiser initially told her
that she was not free to share what occurred in the meeting
because it was confidential. Because Chavez apparently al-
ready knew what happened, however, Fiser relented, and
agreed to talk about the meeting. Chavez recalled that she spe-
cifically asked if Lotrich had tried to get a vote of no confi-
dence against her and Fiser acknowledged that he had. Chavez
also admits that during the meeting with Lotrich, Hill, and Tru-
jillo, she told Lotrich that she didn’t appreciate what he did and
she asked him if it were true that he had done so.
Based on Chavez’ testimony as well as the testimony of Tru-
jillo, Hill, and Lotrich, it is apparent that Chavez told Lotrich
and Hill that she was aware of what occurred during the union
meeting. Chavez also admits that she initiated the meeting with
Fiser in which she not only asked what occurred during the
union meeting, but she also indicated to Fiser that she was al-
ready aware of what occurred during part of the meeting. As is
well settled, the test for whether an employer unlawfully cre-
ates an impression that an employee’s union activities are under
surveillance is whether the employee would reasonably assume
from the statement that his or her union activities were under
surveillance. United Charter Service, 306 NLRB 150 (1992).
Furthermore, I note that the Board does not even require that an
employer’s words on their face reveal that the employer ac-
quired its knowledge of the employee’s activities by unlawful
means. Charter, above at 151. Based on Chavez’ statements to
Fiser, Lotrich, and Hill, these three employees could reasona-
bly conclude that their protected union activities were being
monitored and thus such statements were violative of Section
8(a)(1) of the Act as alleged in complaint paragraph 5(a)(1).
Martech MDI, 331 NLRB 487 fn. 4, 501 (2000).
TEACHERS AFT NEW MEXICO 443
Chavez does not deny that she asked both Lotrich and Fiser
about Lotrich’s actions during the union meeting. Citing Ste-
vens Creek Chrysler Jeep Dodge, 357 NLRB 633, 642 (2011),
counsel for the General Counsel asserts that directly question-
ing an employee about what he did or did not do in a union
meeting is unlawful interrogation. I note, however, that the
questioning of an employee regarding his or her union activities
does not constitute a per se violation of the Act. Rather, the test
for determining when an unlawful interrogation has occurred is
whether, under all the circumstances, the alleged interrogation
reasonably tends to restrain, coerce, or interfere with the em-
ployees in the exercise of rights guaranteed them under Section
7 of the Act. Rossmore House, 269 NLRB 1176 (1984), affd.
sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985). In considering the totality of the circumstanc-
es, the Board has considered such relevant factors to include,
whether the interrogated employee was an open or active union
supporter, whether proper assurances were given concerning
the questioning, the background and timing of the interrogation,
the nature of the information sought, the identity of the ques-
tioner, and the place and method of the interrogation. Certain-
ly, the fact that Lotrich was an active and open union supporter
would be a factor that would diminish the potential coercive-
ness of Chavez’ questions. This factor, however, is overshad-
owed by the fact that Chavez called Lotrich to report to her
office with a representative of his choosing. The serious nature
of the meeting is also reflected in the fact that Trujillo was
present as well. The fact that Lotrich and Hill understood the
significance of the meeting is evidenced by their questioning of
both Chavez and Trujillo as to whether discipline was going to
be issued. Thus, the undisputed record supports a finding that
Respondent unlawfully interrogated Lotrich as well as Fiser as
alleged in complaint paragraph 5(a)(2).
Both Lotrich and Hill testified that during the course of the
meeting, Chavez told Lotrich that she would “get even with
Lotrich.” Hill specifically recalls that in telling Lotrich that she
would get even with him, she also used the phrase that she
would “nip it in the bud.” Chavez testified that she was upset
and angry with Lotrich when she called him into her office.
She recalled that she told him that she wanted to find out if it
were true that he had called the no-confidence vote during the
union meeting. She told him that if she found out that it was
true she would call another meeting and she would “nip it in the
bud.” She went on to explain that this was an expression that
she often used. Based on the overall testimony, I find that
Chavez threatened Lotrich with unspecified reprisals as alleged
in complaint paragraph 5(a)(3). This finding is based on the
fact that Lotrich’s testimony alleging this threat is supported by
Hill’s testimony. I found Hill to be a credible witness whose
testimony was straightforward without apparent bias or exag-
geration. Additionally, I found that both Hill’s testimony and
Lotrich’s testimony were supported by Chavez’ testimony ad-
mitting that she told Lotrich and Hill that she would “nip the
matter in the bud” and that she would take further action if she
found that Lotrich had pursued the no-confidence vote in the
union meeting. Thus, I find that Respondent violated Section
8(a)(1) as alleged in complaint paragraph 5(a)(3).
3. Complaint paragraphs 5(a)(4), (5), and (k)
In complaint paragraphs 5(a)(4) and (5), and (k) the Acting
General Counsel alleges that Respondent orally promulgated an
overly-broad and discriminatory rule prohibiting employees
from expressing their concerns about management and by oral-
ly promulgating an overly-broad and discriminatory rule pro-
hibiting its employees from engaging in union activities by
telling employees they had no right to call for a no-confidence
vote during a union meeting. In order to fully consider these
complaint allegations, it is also necessary to consider the spe-
cific section of the collective-bargaining agreement upon which
Chavez relied when telling Lotrich that he could not initiate the
vote of no confidence.
The collective-bargaining agreement between AFT-NM and
the IAM contains specific actions that are prohibited and al-
lowed for employees with respect to their individual political
activities on behalf of, and in relation to, the Respondent. Spe-
cifically, section 8.1 of the collective-bargaining agreement
provides:
AFT-NM employees shall not engage, nor be asked to en-
gage, in the internal politics of the AFT-NM or its local affili-
ates or the AFT. This shall include, but not limited to, the
lobbying of AFT-NM executive council members on any
items that are likely to come before them to be voted on in-
cluding personnel matters.
The contract section further provides that a violation of the
contract provision shall be grounds for dismissal.
Counsel for the General Counsel submits that Chavez’ reli-
ance on the above-cited contract section cannot serve as a basis
for legitimizing Chavez’ comments to Lotrich about his initiat-
ing the no-confidence vote. Counsel asserts that Lotrich’s ac-
tion was protected activity regarding his and other employees’
working conditions and prompted by a concern about what
appeared to be Trujillo’s impending resignation. Counsel ar-
gues that “no reasonable construction of this casual, protected
comment as being “political” activity prohibited by contract
can be drawn.”
There is no dispute that Chavez’ admonition to Lotrich in-
volved his actions during a union meeting that occurred on
nonworking time and within a meeting that was approved by
Trujillo. There also can be no dispute that the Act provides
employees the right to engage in activity for their mutual aid
without employer interference. Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 798 (1945). Chavez’ statements to Lot-
rich clearly constituted a restriction on his protected and union
activity and the promulgation of such a rule would reasonably
tend to chill employees in the exercise of their Section 7 rights.
Lafayette Park Hotel, 326 NLRB 824, 825 (1998). According-
ly, I find that Respondent violated the Act as alleged in com-
plaint paragraphs 5(a)(4) and (5).
Citing the Board’s decision in Tawas Industries, 321 NLRB
269, 276–277 (1996), counsel for the General Counsel argues
that it is unlawful for an employer to maintain in its collective-
bargaining agreement with a union an overly-broad and dis-
criminatory rule that prohibits employees from engaging in
Section 7 activity. I note that in Universal Fuels, 298 NLRB
254, 257 (1990), the Board held that a union cannot waive em-
444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees’ right to protected communications even if the rule
prohibiting such communications is included in a collective-
bargaining agreement. Counsel for the General Counsel further
argues that the provision described above in the existing con-
tract between the IAM and AFT-NM fails to define “internal
politics” or to assure employees that they still have the right to
engage in protected activity regarding their terms and condi-
tions of employment. Counsel’s argument has merit and I find
that the contractual language in issue is overly-broad and dis-
criminatory and violates Section 8(a)(1) of the Act as alleged in
section 5(k) of the complaint.
4. Complaint paragraphs 5(b)(1)–(3) and (g)
a. Underlying facts
Lotrich testified that during mid-May, Trujillo called him to
her office. Trujillo told him that she needed his help and she
needed him to work with her. Lotrich testified that she told him
that Chavez had given her “all kinds of grief and pressure to do
something” with Lotrich. Trujillo gave Lotrich a document
with Lotrich’s name at the top of the page that was entitled,
“Progressive Discipline Plan.” The body of the document in-
cluded a background section documenting that Trujillo had
received comments from AFT-NM leaders about Lotrich’s
aggressive interactions and negative behavior. The document
specifically referenced Lotrich’s physical behaviors, face man-
nerisms, and body language.
The second section of the document listed various ways that
Lotrich could employ some specific behavior modifications.
These suggestions included his listening to himself and identi-
fying his own bodily reactions and expressions of anger. Fur-
ther suggestions included developing exercises to cope with
stress, tension, anger, and rage, as well as identifying people
from home and work who could be supportive in helping him to
deal more effectively with anger.
Trujillo suggested back-dating the document to March. Lot-
rich asserts that when he asked Trujillo about the reason for the
document, she told him that it all stemmed from his comments
to Chavez about his wanting to have a no-confidence vote.
Lotrich also contends that Trujillo went on to tell him her sus-
picions that Chavez wanted to form a coalition with AFT-NM
Legislative Vice President and Secretary Tim Crone and Donna
Swanson, who was one of the local presidents, and her belief
that they intended to go after Lotrich because of the no-
confidence vote. Lotrich testified that he agreed to work with
Trujillo concerning this document because they were friends
and that was the relationship they shared.
After meeting with Trujillo, and based on his discussion with
Trujillo, Lotrich then prepared a Behavior Management Plan
for himself dated March 21–May 11, 2011. Lotrich prepared
the document as though it were written by Trujillo. The docu-
ment included the following wording:
Andy Lotrich and I met on March 21, 2011 to discuss verbal
concerns from Kathy Chavez and Donna Swanson, regarding
comments made by individuals pertaining to alleged aggres-
sive interactions with other individuals. The verbal concerns
from Kathy Chavez and Donna Swanson pertain to various
unidentified negative behaviors that make these individuals
feel uncomfortable around Andy. They have relayed con-
cerns that there is not a trust level, and that they don’t know
how to take Andy’s physical presence, face mannerisms, and
body language.
The two-page document prepared by Lotrich included a list of
measurable and observable objections. In the document, Lot-
rich was charged with identifying potentially negative body
reactions and expressions of frustration or anger in staff meet-
ings. The plan provided that Lotrich would not speak with
Chavez, Judy Johnston, and John Ingram while standing and
would not speak individually with any of these three individu-
als without having a third person present. One of the items in
the management plan was the admonition to have Lotrich “first
say what he wants to say inside his head before he speaks.”
The plan provided that Lotrich must include Trujillo in all
emails that he sent to staff and to local presidents with the ex-
ception of emails involving internal IAM communication.
Because Lotrich had regular assignments that involved three
female local presidents, Trujillo would contact these local pres-
idents concerning their interaction with Lotrich and she would
determine if they had any concerns. Trujillo would also contact
other individuals with whom Lotrich worked to learn more
about his interactions with them and she would also personally
observe his interaction.
When Lotrich presented the finished document to Trujillo,
there was also a final paragraph, documenting a meeting for
Trujillo and Lotrich on May 11, 2011, concerning the back-
dated plan. Drafted in Trujillo’s words, the paragraph included
a reference to Trujillo having observed Lotrich’s attempt to
modify his body language and interaction with training sessions
and meetings. Specifically, the paragraph included the follow-
ing wording:
I have noticed Andy Lotrich in staff meetings not being as
vocal as he used to be and paying particular attention to is
body language. I have seen Andy Lotrich make an attempt to
find a chair to sit, or kneel down to speak with people so that
he isn’t speaking above them. In training sessions and other
meetings, Andy Lotrich has kept his comments short and con-
cise and is always one of the last to speak, allowing others to
speak before him. Although it wasn’t one of my goals, Andy
Lotrich has made a concerted effort not to get on Liz’s bad
side. Therefore, based on my observations, I feel Andy has
met each one of the listed goals.

Trujillo testified that prior to her meeting with Lotrich, vari-
ous individuals came to her regarding Lotrich’s interaction with
them. She testified that employees Lindsay Theo, Michelle
Kavanaugh, Liz Gravning, Judy Johnston, Tiffany Fiser, and
John Ingram all made specific complaints to her about Lotrich
and she shared these comments with AFT-NM’s executive
officers. Trujillo recalled that employee and Union Steward
John Ingram told her that Lotrich was so abusive that he had
sought a personal security order against Lotrich. Although
Ingram was called as a witness by AFT-NM, he did not testify
concerning this alleged attempt to seek a personal security or-
der. Trujillo also recalled that Liz Gravning told her that Lot-
rich scared her. When Gravning was called as a witness by
AFT-NM, she mentioned only one incident in August 2011
TEACHERS AFT NEW MEXICO 445
when she felt intimidated during a conversation with Lotrich.
Tiffany Fiser testified that she voluntarily quit her employment
on May 31, 2011, and part of her decision to quit related to
Lotrich. She testified that she felt intimidated and harassed by
Lotrich and she recalled an incident in which Lotrich angrily
threatened to get her fired because she had gone to the president
concerning an issue with reverse dues deduction for a particular
program. Michelle Kavanaugh testified that she complained to
Trujillo about Lotrich because of a comment that Lotrich made
to her in January and February 2011. Lindsay Theo testified
concerning an incident involving Lotrich during a work-related
meeting that she attended with him in Las Crucas, New Mexi-
co. Theo testified in detail concerning her trip with Lotrich to
meet with community group representatives in Las Crucas. She
described the events of the meeting and how she came to be
uncomfortable during the course of the meeting. When she
became uncomfortable, she told Lotrich that she wanted to
leave. She testified that Lotrich did not respond to her request
and kept her in the meeting for another hour and 15 minutes
after she first notified him of her discomfort. While she report-
ed the incident to her supervisor, Matt Aber-Towns, she did not
initially say anything to Trujillo. Theo testified that she had
been reluctant to tell Trujillo because of Trujillo’s and Lotrich’s
friendship. After witnessing the comment that Lotrich made to
Kavanaugh in early 2011, Theo decided that she would tell
Trujillo about her experience with Lotrich and she did so in
March 2011.
After reporting these issues to the executive officers, Trujillo
met with Lotrich and informed him of these same issues. She
does not dispute that she allowed Lotrich to rewrite the plan
and that she asked that it be back-dated to March. She testified
that she wanted the March start date for the plan in order to
demonstrate to others that she was effectively dealing with the
issues with Lotrich. She testified that because she knew that
others were very concerned, she created the document with
Lotrich to show that he was on a growth plan.
In June 2011, AFT Regional Director Jennifer Kaseman
conducted a brainstorming session for AFT-NM and AFT staff.
Lottrich testified that as he was walking down the hall to go
into the meeting, Trujillo pulled him aside. Lotrich testified:
That was when I was walking down the hallway, and Chris-
tine said to me, Mjito, which is just a friendly term for, you
know, my young one, come here, please. I need to talk to you
real quick. So we went into Christine’s office real quick. We
didn’t close the door. She just left it open, and she said, Andy
make sure at this meeting you do not talk like Andy; they’re
watching you. Make sure that you limit everything you say
when you enter the room. So I said okay. And so we entered
the room.
b. Conclusions concerning complaint allegations
5(b)(1) – (3), and (g)
Citing the Board’s decision in SKD Jonesville, L.P., 340
NLRB 101, 101–102 (2003), counsel for the General Counsel
asserts that by Trujillo telling Lotrich that Chavez was giving
her all kinds of grief and pressure to have AFT-NM do some-
thing to him, AFT-NM threatened Lotrich with unspecified
reprisals and threatened Lotrich with discipline because of his
union activity on May 11, 2011. I note that the facts of SKD
Jonesville involved a conversation in which a supervisor told an
employee that it was not in her best interest to get involved
with the union. Because the Board found that the supervisor
made the comment following a reference to discharging other
employees who had exercised their Section 7 rights, the Board
concluded that the employee would reasonably have interpreted
the remark as a threat that the respondent would retaliate
against her in some unspecified way if she were involved with
the union.
I find the circumstances of this case distinguishable from
those in SKD Jonesville and I do so based on credibility. Lot-
rich testified that when he met with Trujillo, he asked her the
reason for the progressive discipline plan that she presented to
him on May 11. He contends that Trujillo told him that she had
received grief and pressure from Chavez. Lotrich then added
that Trujillo told him that it all stemmed from his actions at the
union meeting in April. I do not find Lotrich’s testimony in
this regard to be credible. Although this alleged statement con-
veniently links the blame for any discipline or discussion of
discipline to the earlier union meeting, such a statement is not
consistent with the total record evidence or convincing in light
of the undisputed facts of this meeting.
Lotrich does not deny that when Trujillo spoke with him and
prepared the initial document, she included very specific reme-
dial actions that Lotrich was to follow for the behavior man-
agement plan. There is no evidence that Lotrich challenged
Trujillo concerning the need for the actions or that he denied
the behavior addressed in the document. He, in fact, took the
document and rewrote it to again to cover those same issues;
listing specific remedial measures that he would take as well as
identifying steps that Trujillo would take to monitor his actions.
Although it appears Chavez is among the group of individuals
with whom Lotrich agreed to modify his behavior to comply
with plan, there is no other evidence that the behavior modifica-
tion plan had any link to the union meeting or was initiated
because of the union meeting. Furthermore, I find the testimony
of Kavanaugh, Fiser, and Theo to be credible and to establish a
basis for Trujillo to prepare the behavior modification plan for
Lotrich.
Accordingly, inasmuch as there is no credible evidence in
support of these allegations, I do not find merit to complaint
allegations paragraphs 5(b)(1) and (2).
Counsel for the Acting General Counsel also asserts that
when Trujillo called Lotrich aside prior to the AFT training
meeting and told him not to talk like “Andy,” Trujillo’s state-
ment restricted Lotrich in his ability to engage in Section 7
activity. Counsel asserts that such an overly-broad rule restricts
Lotrich regarding what he is free to convey or to discuss with
other employees at any time at work and thus is violative of the
Act. Counsel also asserts that by making this statement to Lot-
rich, Trujillo created the impression that he would face some
sort of adverse action and her statement constituted a threat of
discipline and unspecified reprisals. I do not find the record
evidence to support this conclusion. As discussed above, Lot-
rich does not deny that at the time that Trujillo told him not to
talk like “Andy,” she had already met with him to discuss spe-
cific behavioral issues and to present him with a progressive
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
discipline plan to address those issues. It is undisputed that
Trujillo’s progressive discipline plan, as well as Lotrich’s be-
havior modification plan, included specific reference to the
manner in which Lotrich interacted with other employees and
managers. Lotrich even asserts that the seating arrangement for
this meeting was prearranged by management and arranged in
such a way to position Lotrich at a table away from employees
Ingram and Johnston. There is no dispute that these are the two
employees identified in the behavior modification plan as indi-
viduals with whom he was not to speak while standing or with-
out a third person present. Thus, it is reasonable that Trujillo
might have had concerns about how Lotrich would conduct
himself in this meeting. In light of her earlier discussion with
him on May 11, 2011, it is also reasonable that she would have
pulled him aside to remind him to be aware of his behavior and
to encourage him to modify his behavior in keeping with the
behavior modification plan. Thus, I do not find that Trujillo’s
comments to Lotrich prior to the training meeting to constitute
violations of the Act as alleged in complaint paragraphs
5(b)(1), (2), (3), and (g).
5. Complaint allegations 5(c)(1) – (2), (d), (e), and (f)(1)
In May and June, 2011, the IAM and AFT-NM were bar-
gaining for a contract and Lotrich served on the bargaining
committee. Lotrich testified that prior to one of the bargaining
sessions in June, Trujillo pulled him aside and told him, “Andy,
you don’t need to be the vocal one at the table, watch what you
say.” Lotrich contends that while he responded to Trujillo by
telling her, “Christine, it’s bargaining,” he also made a con-
scious attempt to follow Trujillo’s suggestion. Counsel for the
General Counsel submits that Trujillo’s comment to Lotrich
created a restriction on his ability to freely engage in Section 7
activity at the bargaining table. Counsel further argues that
such a statement also intonates that discipline will potentially
be taken against him depending on how and to what extent he
engaged in union activities.
I find merit to counsel for the General Counsel’s argument.
As discussed above, it is apparent that during this time period,
Trujillo was acting as not only a friend to Lotrich, but also as a
manager with concerns about Lotrich’s behavior and interaction
with other employees and with management. Based on the
record as a whole, it is likely that Trujillo’s comment to Lotrich
may have been a continuation of her attempt to coach and to
encourage Lotrich in modifying his behavior. Even if this had
been her intent, her comment would nevertheless have reasona-
bly tended to restrict Lotrich in his ability to engage in Section
7 activity at the bargaining table. Thus, Trujillo’s statement
constituted the unlawful oral promulgation of an overly broad
rule restricting protected activity as well as a threat of unspeci-
fied reprisals if he did not follow the rule. Accordingly, I find
merit to complaint paragraphs 5(c)(1) and (2) as well as 5(d),
(e), and (f)(1).3

3 Although the complaint includes two paragraph sections that are
very similar relating to Trujillo’s alleged comments to Lotrich prior to a
June 2011 bargaining session, Lotrich’s testimony does not establish
that he had more than one conversation with Trujillo about his conduct
at the bargaining table. Thus, the allegation contained in 5(f)(1) ap-
pears to be the same conduct addressed in 5(c) and (d).
6. Complaint paragraphs (f)(2) and (3)
In late June or early July 2011, Lotrich made an emergency
trip to Socorro, New Mexico, to assist the Socorro local union
with bargaining. When Lotrich returned to the AFT-NM office,
he stopped by Trujillo’s office to give her a report on the bar-
gaining session in Socorro. During their conversation, they
also discussed the bargaining between AFT-NM and the IAM
that occurred while Lotrich was in Socorro. Lotrich testified
that Trujillo stated:
Andy, you know what. Last night’s negotiations went really,
really well. It was nice not having you in the room. We got a
lot accomplished.
Lotrich asserts that her demeanor did not indicate that she was
joking with him.
Trujillo testified that during some of the bargaining sessions
with AFT-NM and the IAM, “things got tied down.” She testi-
fied: “When Andy was there, we just could never make any
movement.” She recalled that during the meeting when Lotrich
was absent, the parties were able to get TAs (temporary agree-
ments) on a number of issues. She also recalled that when Lot-
rich asked her about the meeting, she told him that they had
been able to get a lot accomplished. She did not recall saying
anything further. She denied that she told him that he couldn’t
come to future meetings or that she told him to change his be-
havior during the meetings. She denied threatening him with
discipline if he came to future meetings.
7. Conclusions concerning paragraphs 5(f)(2) and (3)
The General Counsel alleges that Trujillo’s statement to Lot-
rich constitutes not only an unlawful threat to Lotrich, but also
constitutes the promulgation of an overly-broad and discrimina-
tory rule that prohibits employees from engaging in union ac-
tivities. I note that while Trujillo specifically denied that she
threatened Lotrich or that she told him that he could not return
to future bargaining sessions, she did not specifically deny the
alleged statement when discussing Lotrich’s bargaining ab-
sence. Trujillo readily acknowledged that it was her view that
while the parties were unable to make any bargaining move-
ment when Lotrich was present, the parties were able to reach a
lot of temporary agreements on bargaining issues when Lotrich
was not present. It is reasonable that she shared this view with
Lotrich when she spoke with him in June 2011. As discussed
above, Trujillo was actively trying to help Lotrich to modify his
behavior in various aspects of his life. It is reasonable that she
would have tried to explain to Lotrich how his behavior affect-
ed the bargaining process. In doing so, however, she restricted
Lotrich in the exercise of his right to engage actively in protect-
ed activities. While I do not find that Trujillo’s statement con-
stituted a threat as alleged by complaint paragraph 5(f)(2), I
find that the statement unlawfully prohibited Lotrich from en-
gaging in union activity as alleged in complaint paragraph
5(f)(3).
C. Lotrich’s Layoff, Suspension, and Termination
1. AFT and AFT-NM restructuring
AFT National Representative Aber-Towns testified that as
early as March 2011, he was aware that AFT-NM was experi-
TEACHERS AFT NEW MEXICO 447
encing financial difficulties and that AFT-NM anticipated a
large shortfall for fiscal year 2011–2012. On June 18, 2011, the
AFT-NM executive board (also referred to as executive coun-
cil) met at the AFT-NM union hall. Twenty-two of the execu-
tive board members4 were present. AFT Regional Director
Jennifer Kaseman was present, as well as a new AFT associate.
During the meeting, Kaseman gave a presentation on the cur-
rent staffing and budget situation for AFT-NM. The board
members were told that the staffing needs of the organization
made up one-half of the budget. If AFT-NM remained at the
current operations status, it would incur a $156,000 deficit.
Kaseman distributed a needs- assessment survey to each local
president in order that the State federation could accurately
assess the needs of the local. The survey requested information
about what the locals needed concerning organizing, new
member recruitment, leadership development, data, core re-
cruitment, and communications. Kaseman explained that in
early analysis, she believed that the CBOP program and the
field staff could possibly undergo restructuring. When the floor
was opened for discussion, many of the presidents expressed
concern over the budget and the need for reorganization and
possible reduction in force.
After receiving the survey results in late June, the executive
council held a conference call and discussed the results of the
survey and discussed the options open to them. Although the
council discussed possible staffing restructuring for AFT-NM,
no decisions were made at that time. Based on the survey re-
sults, the AFT, however, decided to terminate the CBOP pro-
gram in late July. Aber-Towns testified that although the pro-
gram had grown until approximately 2008, the Statewide mem-
bership had essentially flat-lined by July 2011. He further ex-
plained that with the financial difficulties for AFT-NM, it
didn’t make sense from a national perspective to continue the
CBOP program. All of the CBOP five organizers were laid off,
including Beaty and Michelle Kavanaugh; Trujillo’s daughter.
When the AFT-NM executive council met on August 13, the
council voted to restructure the AFT-NM staff. The executive
council is comprised of the AFT-NM officers as well as the
presidents of all of the 30 locals throughout New Mexico. The
council voted to restructure the staff by designating a staff di-
rector and a program director. Three new organizers would be
hired and the number of field representatives would be reduced
from five to three. The positions of State affiliate political
organizer and administrative assistant would remain. The
layoff of the field representatives was based on the seniority
provisions of the collective-bargaining agreement between
AFT-NM and IAM. Based on their seniority, Lotrich and El-
eanor Chavez were laid off. In addition to her job as a field
representative, Eleanor Chavez was also a sitting State repre-
sentative.
2. Complaint paragraphs 6(a) and (b)
On August 17, 2011, Lotrich met with Trujillo, Kathy
Chavez, and Union Steward Joe Hill. Trujillo gave Lotrich a
letter confirming his layoff. The letter explained that when the

4 The notes reflect that I. Williamson attended the meeting on behalf
of member Kathy Jenkins.
executive council met on August 13, the council decided to
restructure and reorganize the staff. The restructuring provided
for the retention of only three of the field representatives and as
Lotrich and Eleanor Chavez were lowest in seniority, they were
laid off subject to recall.
During an earlier meeting with Hill, Trujillo indicated the
purpose of her meeting with Lotrich. Having already learned
about the layoff from Hill, Lotrich came to the meeting with his
resume and a cover letter requesting a transfer to the open
SAPO position. At the beginning of the meeting, Lotrich
placed his iPhone on the table in front of him and recorded the
meeting. Trujillo began the meeting by explaining to Lotrich
how the executive council worked out the restructuring of the
staff to deal with the $156,000 budget deficit. She explained
that under the restructuring, only three field representatives
would be needed. Those senior field representatives would
have to move to other areas of the State to continue their jobs.
They would have only until September 6, 2011, to decide
whether they would move or resign. She also explained to
Lotrich that because the individual locals set servicing, organiz-
ing, and leadership development as their three top priorities, the
work of the field representatives would change. The organizing
function would be handled by organizers; who would be as-
signed to specific locals. Lotrich asked Trujillo why the field
representatives were not just transferred into the organizer posi-
tions. Trujillo explained that the organizer positions were not in
the collective-bargaining unit as yet and there was no contract
language relating to these positions.
Lotrich continued to question Trujillo about all of the posi-
tions in the restructured staff. When Trujillo explained that the
program director and the field staff director positions were
management positions and not in the bargaining unit, Lotrich
challenged Trujillo and questioned whether there had been a
unit clarification process or a determination by the NLRB.
Lotrich went on to argue with Trujillo that AFT-NM was in
violation of the collective-bargaining agreement as well as the
Act, Lotrich also questioned how AFT-NM could make the
staff changes when it was $156,000.00 in debt, asserting that he
wanted to understand AFT-NM’s financial situation. Trujillo
explained that those are things that he needed to discuss with
his union. She stated that he should please understand that the
issue for the meeting was his layoff and not to sit and to negoti-
ate.
Lotrich also argued that under the collective-bargaining
agreement, Trujillo could not notify the senior staff of their
transfer before he was notified of his layoff. Trujillo suggested
that this is something that he could grieve under the contract.
Lotrich then began again asking about the financial situation
and the costs of creating regional offices under the restructur-
ing. In response to his continuing questions, Trujillo at one
point responded: “Ok Andy. I’m, let’s stop, stop, stop.” She
suggested that if he wanted to pursue these issues, he should go
through the discovery process with his Union and she again
told him that she was not going to negotiate this issue with him
in the meeting. Lotrich then asked if he could take the remain-
ing leave that he had accrued and Trujillo agreed. Lotrich and
Trujillo continued the meeting by discussing how he could
wrap up his remaining paperwork.
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lotrich inquired about the open SAPO position and when it
would be filled. Trujillo explained that Respondent hoped to
have all of the positions filled by November 15, 2011. When
Trujillo confirmed that the SAPO job description was essential-
ly the same, Lotrich told Trujillo that he was requesting a trans-
fer to that position. When Trujillo told him that he would have
to apply for the position, Lotrich argued that under the collec-
tive-bargaining agreement, employees can request transfers to
other bargaining unit positions and therefore he did not have to
apply. Trujillo explained to him that the SAPO position was
different because the AFT pays half the salary for the position
and Respondents were going to do a national call for applicants
for the job. Trujillo again told Lotrich that he could apply for
the position if he wished to do so.
3. Conclusion concerning paragraphs 6(a) and (b)
The Acting General Counsel alleges that AFT-NM subjected
Lotrich for layoff on August 17, 2011, and also refused to grant
his request to transfer to a bargaining unit position on August
17, 2011, because of his union and concerted activities. As the
General Counsel points out, the General Counsel bears the
initial burden of showing that a respondent’s decision to take
adverse action against an employee was motivated, at least in
part, by antiunion considerations. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. (1982), approved in NLRB v. Transportation Corp.,
462 U.S. 393 (1983). Thus, the General Counsel must make an
initial showing that an employee’s protected conduct was a
motivating factor in an employer’s decision to take adverse
action against the employee. See Williamette Industries, 341
NLRB 560, 562 (2004). In making out a prima facie case, the
General Counsel must show that (1) the employer took adverse
employment action against an employee; (2) the employee
engaged in union or other protected activity; (3) the employer
knew of such activities; and (4) there is a link or nexus between
the protected activity and the adverse employment action.
Hays Corp., 334 NLRB 48 (2001).
a. Lotrich’s selection for layoff
There is no dispute that Lotrich’s layoff constituted an ad-
verse employment action and that prior to his layoff, he actively
supported the Union by serving on the Union’s negotiating
committee. Additionally, there is no question that Lotrich initi-
ated the union meeting on April 18, 2011, in which he sought a
no-confidence vote again AFT Vice President Chavez. It is the
remainder of the Wright Line analysis, however, that fails to
demonstrate the components necessary to establish a prima
facie case. To complete the Wright Line analysis and to estab-
lish a prima facie case, the General Counsel must show that
AFT-NM had knowledge of Lotrich’s union activity and that
there is a causal link between his protected activity and his
layoff. In this case, these components are inextricably connect-
ed. AFT-NM presented credible evidence to show that it un-
derwent a rather significant restructuring of its staff in mid-
2011 in an attempt to deal with the $156,000 budget deficit.
Union Steward Joe Hill testified that even before the April
2011 staff meeting, Trujillo told the staff about the financial
shortfall and urged the staff to get out, organize, and bring in
new members. During the April 2011 meeting, Trujillo again
discussed the financial status of AFT-NM with the staff. Hill
recalled that Trujillo became tearful. She told employees that
she would rather resign her position before she would lay off
any staff. She added that there was such a significant shortfall,
that AFT-NM was probably not going to be able to make pay-
roll.
During the June 18, 2011 executive council meeting, AFT
Regional Director Kaseman talked with the council about the
predicted $156,000 short fall and she explained that staffing
made up one-half of the AFT-NM budget. At the end of the
meeting, some of the local presidents expressed their concerns
about the deficit and discussed the possibility of staff restruc-
turing and reduction. Finally, on August 13, 2011, the execu-
tive council voted to reorganize the AFT-NM staff; which re-
sulted in a total change in the number and the office locations
of the field representatives. This was a decision that was not
made by Trujillo or Kathy Chavez. It was made by all of the
union officers as well as the presidents of the 30 locals. AFT-
NM State Treasurer Joy Garratt participated in the August 13,
2011 council meeting. She voted in favor of the staff restruc-
turing and she was aware that it would result in layoffs. She
testified that when she voted for the restructuring, she was un-
aware that Lotrich was involved in an attempt to initiate a no-
confidence vote during a union meeting. She testified that nei-
ther Lotrich’s union activity, his involvement with the no-
confidence vote, nor his position with the IAM was ever raised
during any of the meetings she attended concerned the reorgan-
ization. She testified that these factors did not weigh in any
way in her decision to vote for Lotrich’s layoff. She asserted
that she had been unaware of these factors. I not only find
Garrett to be a credible witness, but I also find her testimony to
be reasonable in light of the total record.
Counsel for the General Counsel asserts that Lotrich was vo-
cal in his union activities and that Kathy Chavez was not happy
about his activity and that she directed coercive comments to
him regarding his activity. Trujillo does not dispute that Lot-
rich was vocal in all that he did and there is no dispute that she
attempted to coach him in how to relate to others. As discussed
above, when she attempted to coach him with respect to his
bargaining table behavior, her behavior constituted a violation
of Section 8(a)(1). Chavez does not dispute that she was upset
with Lotrich because of his attempt to get a no-confidence vote
against her by fellow union members. As discussed above, I
have found that her statements to him concerning his actions
were also violative of the Act. Thus, there is no doubt that both
Trujillo and Chavez had the requisite knowledge of Lotrich’s
union activity and there is little doubt that Chavez harbored
some animus toward him for his actions in the union meeting.
Their knowledge and any potential animus on the part of
Chavez are not, however, sufficient to sustain a finding that the
executive council discriminatorily decided to layoff Lotrich on
August 13, 2011. There is no evidence that Lotrich’s union
activities were discussed or considered in relation to the execu-
tive council decision for staff restructuring. There is simply no
evidence to show that any of the other AFT-NM officers or that
any of the 30 local presidents located throughout the State of
New Mexico had any knowledge of Lotrich’s attempt to get a
no-confidence vote against Chavez. Garrett credibly testified
TEACHERS AFT NEW MEXICO 449
that she was unaware of Lotrich’s union activities. According-
ly, I do not find that the General Counsel has established suffi-
cient knowledge or the causal link between Lotrich’s union
activity and his layoff.
Furthermore, the record evidence does not reflect the requi-
site animus necessary to establish that Lotrich was selected for
layoff because of his protected activity. Counsel for the Gen-
eral Counsel argues that Lotrich’s selection for layoff was dis-
criminatorily motivated. Interestingly, however, Judy Johnson
was one of the individuals retained as a field representative
after the restructuring. This is the same employee who was
disciplined by Trujillo in April 2011 for allegedly spreading
malicious and disparaging comments about two CBOP organiz-
ers; one of whom was Trujillo’s daughter. The Union filed a
grievance on April 6, 2011, in response to Johnson’s 2-week
suspension and the matter was the subject of an arbitration
proceeding on September 19, 2011. Certainly, the argument
may be made that Trujillo might have had as much or more
animus toward Johnson because of her union activity than to-
ward Lotrich. Furthermore, there is no dispute that Lotrich and
Trujillo were friends. Lotrich’s wife; Kelly Lotrich, testified
that prior to her husband’s layoff, she had been very good
friends with Trujillo. She recalled that she attended specific
social outings with Trujillo that included Halloween events for
her children and Trujillo’s granddaughter, as well as birthday
parties, and dinner at Trujillo’s home.
In cases where the General Counsel meets the burden of
showing that an employee’s protected or union activity was a
substantial or motivating factor for the adverse employment
action, a respondent can overcome a presumption that it has
acted unlawfully by proving that it would have taken the same
action even in the absence of the employee’s protected activity.
Manno Electric, Inc., 321 NLRB 278 fn. 12 (1996). Even as-
suming that the General Counsel has established a prima facie
case, the overall evidence, however, reflects that Lotrich would
have been laid off despite his protected activity. There is noth-
ing to indicate that Lotrich was more senior than the three field
representatives whose jobs were moved to other parts of the
State. Furthermore, Lotrich was not the only field representa-
tive who was laid off as a result of the staff restructuring.
Counsel for the General Counsel argues that AFT-NM has not
sufficiently shown that the restructuring was necessary and
asserts that Respondent’s assertion of economic necessity does
not insulate it from a finding of unlawful motivations, particu-
larly in light of Chavez’ threat to Lotrich. The General Counsel
is correct in that AFT-NM did not offer voluminous exhibits
documenting the full range of membership decline, increased
costs for operation, or other complex business records docu-
menting the entire process that brought about the budget deficit.
The overall record, however, demonstrates that there was an
established background and a reasonable necessity for the deci-
sion to restructure. Union Steward Hill confirmed that employ-
ees were told about the shortfall and the financial problems
before May 2011 and before Lotrich tried to initiate the no-
confidence vote. Trujillo tearfully told her employees that
AFT-NM might not be able to make payroll and she talked of
layoffs before Lotrich tried to initiate the no-confidence vote.
Thus, it is simply implausible that the entire reorganization
came about simply to give AFT-NM a reason to layoff Lotrich
and not because of economic necessity. Accordingly, I do not
find merit to complaint paragraph 6(a).
b. The refusal to grant Lotrich’s request to transfer
to another bargaining unit position
There is no dispute that when Trujillo explained the restruc-
turing to Lotrich, he immediately requested a transfer to one of
the new organizer positions that were going to be created.
Counsel for the General Counsel contends that AFT-NM un-
lawfully refused his request. Lotrich also demanded that Trujil-
lo explain the financial framework that would justify the ex-
pense for the two management positions that were to be a part
of the reorganization. Lotrich further demanded that Trujillo
explain the details of the newly created regional offices, includ-
ing their location, the amount budgeted each month for the
offices, and the resources allocated for the offices. Trujillo
explained that because the meeting was not a negotiations ses-
sion, she was not going to answer those kinds of questions.
Lotrich admits that Trujillo told him that the target date for
filling the new positions would be November and therefore he
would be able to get all of the paperwork necessary to apply for
those positions. Thus, Lotrich’s testimony reflects that alt-
hough Trujillo denied his request for an immediate transfer to
one of the positions that were going to be created in November,
she did not deny Lotrich the opportunity to apply for those jobs.
Furthermore, the record reflects that just 13 days before Tru-
jillo told Lotrich about his layoff; AFT closed the CBOP pro-
gram and laid off all five of the CBOP organizers. There is no
evidence that AFT-NM5 made any special allowances to allow
any of these individuals to transfer into the vacant SAPO posi-
tion or the organizer positions that were to be filled in Novem-
ber. There is no evidence that the laid-off CBOP organizers
were given any special considerations in applying for these
positions. Trujillo’s daughter was one of those laid-off CBOP
organizers. Thus, there is no evidence that Lotrich was treated
any differently than the five CBOP organizers who were also
laid off in August or any differently than Eleanor Chavez who
was the other staff representative laid off as a part of the Au-
gust reorganization. Thus, I find no merit to complaint para-
graph 6(b).
4. Events leading to Lotrich’s discharge
By August 2011, it had become common practice for the
AFT-NM staff representatives to conduct a “school organizing
blitz” in August of each year. Because it was a time when all
of the public schools were going back into session, AFT-NM
staff representatives, in conjunction with volunteers sent by the
AFT from all over the country, went to targeted school sites
and school districts to conduct internal organizing for new
members. During the week of August 8, 2011, Lotrich was
assigned to the Socorro School District in Socorro, New Mexi-
co. He was initially scheduled to be in Socorro only from
Monday night through Friday night. On August 5, 2011, Lot-
rich found out that one of the organizing events might be re-

5 Although the CBOP organizers were employed by AFT rather than
AFT-NM, I have found that AFT- and AFT-NM were joint employers
during this period of time.
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
scheduled for Saturday and he notified Trujillo of the possibil-
ity that he might need to extend his stay.
Lotrich testified that in previous years, the director for the
blitz operation arranged the hotel accommodations for everyone
participating in the blitz. He also contended that he never made
his own hotel arrangements for his travel with AFT-NM and
that AFT-NM Administrative Assistant Gravning always made
them for him. Lotrich asserts that he discovered on the morn-
ing of August 8 that there were no hotel reservations for him.
He testified that he then remembered that he had been camping
the previous weekend and that his camper was still hooked to
his truck. He decided to take his camper to Socorro. He asserts
that Kathy Chavez and Aber-Towns agreed that he could. Be-
cause the event on August 13 ran longer than expected, he de-
cided that it was better for him to stay an additional night at
Casey’s Trailer Park rather than driving in the dark.
On August 15, 2011, Lotrich gave Gravning an expense
voucher covering his expenses for his work in Socorro. In
addition to his claimed expenses for meals and his claim for
reimbursement for total mileage, the voucher included a total
expense of $336 for 6 days’ lodging at a daily cost of $56.
Lotrich testified that he gave Gravning the original receipt from
Casey’s as well as a modified receipt to show his additional
costs for utilizing his personal camper. Lotrich acknowledges
that the original receipt shows the cost for lodging to be $26 for
5 nights with a total cost of $130. He testified that he made a
photocopy of the original document and changed the 5 nights to
6 and changed the daily rate to $56; which brought the total to
$336. Lotrich testified that when he gave the receipts to
Gravning, he told her that he was giving her an original receipt
as well as a modified receipt to show additional expenses.
Gravning testified, however, that when Lotrich submitted his
voucher listing his Socorro expenses, he included original re-
ceipts for all his expenses with the exception of his lodging
expense. She testified that the only receipt that he gave her for
lodging was the receipt showing a total expense of $336. She
recalled that when he gave her the receipt he made a point of
telling her that he had saved the AFT-NM a lot of money. Lat-
er in the afternoon, Gravning began processing the voucher to
make sure that all the receipts matched the dollar amounts and
that the tips claimed did not exceed 20 percent. When she
came to the lodging receipt, she noticed that the numbers ap-
peared to be changed. She noticed that the number 6 appeared
to be changed from the number 5 and that the number 56 ap-
peared to have previously been another number and then
changed to the number 56. She noticed that a lot of the writing
on the receipt was Lotrich’s handwriting. Seeing the word
“Visa” on the receipt led her to believe that the bill had been
paid by credit card. She testified that normally if an expense is
paid by credit card, the credit card receipt will be attached with
the original receipt. There was no credit card receipt attached.
Gravning showed the modified receipt to an employee who
worked near her to get an opinion. When the employee opined
that the receipt had been altered, Gravning decided to conduct
some additional investigation. She telephoned Casey’s in So-
corro and asked about their daily rates. The woman with whom
she spoke at the trailer park told her that even with additional
hookup charges for electricity and cable, the daily rate would
never exceed $27.
Because Trujillo was out of the office, Graving spoke with
Chavez the next day. When she told Chavez everything that
she had done so far to verify the receipt, Chavez suggested that
Gravning ask Lotrich for the original receipt and the Visa re-
ceipt. In an email dated August 16, 2011, Gravning asked Lot-
rich for the original receipt from the RV park and also for the
Visa receipt. Approximately one-half hour after Gravning sent
the email; Lotrich came to her and gave her his Visa statement
for July, explaining that he would not have his August state-
ment for another month. He pointed out a charge on the July
statement for $52 and asserted that this was the daily rate for
Casey’s. She recalled that Lotrich told her: “The RV park re-
ceipt I gave you is the only information I have in my posses-
sion.” He also told her that he expected to be paid.
As discussed above in an earlier section, Lotrich was called
into Trujillo’s office on August 17 to receive his notice of the
reorganization and his resulting layoff. During the course of
the meeting that Lotrich recorded, Lotrich told Trujillo that he
had an issue with Gravning because he had turned in his ex-
penses and he was not getting expeditious payment. He told
Trujillo that Gravning had an issue with his receipt from the
RV park and that she had questioned the amount. When Trujillo
asked him the amount, he told her that it was $56 per day and
he added that was far less than he would have paid had he
stayed at a hotel. He went on to add that he had a receipt from
a previous stay at the RV park in July showing the amount as
$52 per day. He then volunteered that the reason that the pre-
vious stay was only $52 rather than $56 per day was because he
had not had a TV when he stayed in July and there was a $4
daily fee for a TV.
On that same day, Trujillo called Gravning into her office to
give her the details of the reorganization including the upcom-
ing layoff for Lotrich and Eleanor Chavez. When Trujillo told
Gravning to pay Lotrich for his outstanding expenses, Gravning
explained that she was having a problem with one of his re-
ceipts. Gravning showed Trujillo the receipt and then ex-
plained everything that had occurred thus far including her call
to the RV park, her email to Lotrich, and her conversation with
Lotrich. Trujillo then telephoned the RV park and asked that
they fax the original receipt to the AFT-NM office. After re-
ceiving the original receipt, AFT-NM decided to suspend Lot-
rich.
5. The events of August 19, 2011
At 2:05 p.m. on August 19 2011, Trujillo sent Lotrich an
email telling him that she had left a telephone message for him
earlier at 1 p.m. She told him that it was the upmost im-
portance for him to attend a meeting with her at 4 p.m. and he
was to bring his steward with him. She explained that she had
chosen 4 p.m. in order to accommodate his steward’s availabil-
ity as his steward was in Gallup, New Mexico. Lotrich, who
was not in the office, responded by email at 3:26 p.m. telling
Trujillo that he had just received her message and he was trying
to arrange child care. He told her that as soon as he had cover-
age for his children he would be on his way.
TEACHERS AFT NEW MEXICO 451
When he arrived at the meeting, he told Trujillo that his
steward; Joe Hill, was in Gallup and there was no way to get in
touch with him. He added that IAM Union Representative Red
Dow was in negotiations and he would not be available as well.
Lotrich testified that Trujillo told him that she really needed to
meet with him. Lotrich asserts that he told her that he would
meet with her but he did not waive his right to have a repre-
sentative. Trujillo handed Lotrich a prepared statement that
contained a summary of issues and a description of the purpose
of the meeting. The summary described the process by which
the discrepancy in Lotrich’s receipt had been discovered and
the fact that AFT-NM had obtained an original receipt from the
RV Park. The statement confirmed that the meeting was inves-
tigatory in nature and that no final determination had been mat-
ter in the matter. Lotrich was instructed that he was on paid
leave while AFT-NM conducted a 2-week investigation. Lot-
rich was instructed to return his communication devices and
keys and to refrain from engaging in any business on behalf of
AFT-NM.
Lotrich recalled that he responded by starting to explain how
he came to request reimbursement for the additional $30 per
day for his lodging. Union Officer Doris Williams, who was
sitting in on the meeting, suggested that Lotrich give his expla-
nation in writing and Trujillo gave Lotrich 2 weeks to provide
the information.
6. Complaint paragraphs 5(h), (i), and (j)
Complaint paragraphs 5(h), (i), and (j), allege that on August
19, 2011, AFT-NM denied Lotrich’s request to be represented
by the Union during an interview even though Lotrich had rea-
sonable cause to believe that the interview would result in dis-
ciplinary action taken against him. Additionally, the complaint
alleges that AFT-NM conducted the interview even though
Lotrich’s request was denied.
Trujillo testified that she asked Lotrich to come to her office
at 4 on Friday afternoon because she had been directed to do so
by the AFT-NMs counsel in Washington, D.C., and by the
AFT-NM’s executive board. She understood that it was urgent
that she do so before the next working day. She further
acknowledged that while acting Union Steward Hill knew that
he might be called for such a meeting, neither he nor Union
Representative Earnest Dow knew of the 4 p.m. meeting.
In NLRB v. Weingarten, 420 U.S. 251 (1975), the Supreme
Court upheld the Board’s opinion that Section 8(a)(1) provides
employees the right to be accompanied and assisted by their
union representative at meetings that the employee reasonably
believes may result in disciplinary action. The right does not
apply, however, in those situations where the adverse action has
already been decided by the employer and the employee is
merely informed of the adverse action. LIR-USA Mfg. Co., 306
NLRB 298, 305 (1992). This situation is distinguished, how-
ever, from the circumstance in which the employer informs an
employee of a disciplinary action and then questions the em-
ployee to seek information to bolster that decision. Titanium
Metals Corp., 340 NLRB 766, 774 (2003). In that instance, the
employee’s right to representation applies.
In the instant case, there is no indication that AFT-NM made
any attempt to notify either the steward or the union representa-
tive that a meeting would be held with Lotrich at 4 p.m. on
August 19. Clearly, Lotrich made the request for a representa-
tive to be present and specifically told Trujillo that he was not
waiving his right to a representative. Counsel for the General
Counsel submits that clearly the meeting was an investigatory
meeting. Counsel argues that the fact that a pretyped suspen-
sion letter was handed to Lotrich at the beginning of the meet-
ing does not negate the fact that an extremely detailed and in-
teractive investigation ensued.
Additionally, the language of the document presented to Lot-
rich confirmed that the meeting was investigatory in nature and
that no final determination had been made in the matter. Lot-
rich testified without contradiction that he attempted to explain
the breakdown of the costs involved in his travel and how he
had come to arrive at the $56 daily rate that he claimed. Alt-
hough Williams and Trujillo ultimately stopped him from con-
tinuing the explanation and directed him to prepare a written
statement, there is no question that this interview was more
than simply informing Lotrich of his suspension. Accordingly,
I find that AFT-NM violated the Act as alleged in complaint
paragraphs 6(h), (i), and (j).
7. The events following the August 19 meeting
In a 10-page document dated August 25, 2011, Lotrich gave
a lengthy explanation describing the background, issue, and
events related to the circumstances of his suspension. He in-
cluded a calculation of how he arrived at the additional $30 for
daily lodging that he had included on the modified receipt.
Although he had separately requested reimbursement for mile-
age for his truck, Lotrich explained that he was including mile-
age for the RV because he considered it to be a separate vehi-
cle. On cross-examination, he acknowledged, however, that the
camper did not have a separate gas tank. He testified that he
had based this claim for additional mileage on the fact that the
camper required its own insurance and license plates. In his
document, he also included such items as toilet paper, water
filters, and chemicals for the sanitation feature of the camper.
He additionally included $259.99 for the cost of a stainless steel
mountable grill, $249.99 for an innerspring mattresses, as well
$105.99 for a domestic brisk replacement shroud. Other items
that he included as expenses were propane, a 30-amp cord, roof
vent covers, air-conditioner filters, dome lights, and a sewer kit.
Although Lotrich did not attach receipts for each of these items,
he attached printouts from various internet sites showing the
pricing for the items he had listed as expenses.
In addition to the listed expenses, Lotrich added that if the
camper mileage were subtracted from the total, he was really
only seeking reimbursement of $14.70 per day for the wear and
tear to his RV and he believed that was very reasonable when
compared to hotel costs. He asserted that a hotel room in So-
corro was approximately $100 a night or a total of $600 for the
6 nights. He contended in his written statement that because he
had only requested reimbursement of $336, he had saved the
AFT-NM $264.
On September 1, 2011, Lotrich initially met with Trujillo,
Tim Crone, and Joe Hill. Kathy Chavez came into the meeting
later. At the beginning of the meeting, Lotrich distributed cop-
ies of his August 25, 2011 document and the 29 pages of inter-
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
net pages. He explained the documents that he distributed.
After he did so, Trujillo presented Lotrich with a severance
agreement. When he declined to sign it, Trujillo told him that
he was terminated.
8. Conclusions concerning Lotrich’s suspension
and discharge
Counsel for the General Counsel asserts that Lotrich was
suspended and then discharged because he engaged in union
activities that were not liked by AFT-NM management. AFT-
NM asserts that Lotrich was suspended and terminated because
he attempted to embezzle money from AFT-NM through the
falsification of reimbursement documentation and unrelated to
any union or protected activity by Lotrich.
As discussed above, the Board’s decision in Wright Line,
251 NLRB 1083 (1980), is premised on the legal principle that
an employer’s unlawful motivation must be established as a
precondition to finding an 8(a)(3) violation and the case pro-
vides an analysis in determining whether there has been unlaw-
ful motivation. To establish the initial burden under Wright
Line, the General Counsel must establish four elements by a
prepon-derance of the evidence. Those elements include: (1)
the existence of protected activity; (2) the employer’s
knowledge of the protected activity; (3) the alleged discrimi-
natee has suffered an adverse action; and (4) a causal link or
nexus between the protected activity and the adverse action.
Tracker Marine, LLC, 337 NLRB 644, 646 (2002). In applying
this analysis to Lotrich’s suspension and discharge, I find that
the General Counsel has met the necessary burden to establish a
prima facie case of discrimination. Unlike the issue involving
Lotrich’s layoff as described earlier in this decision, all four
elements of Wright Line have been met. Beyond the fact that
Lotrich suffered an adverse action, Lotrich engaged in union
activity that was clearly known to AFT-NM. The most obvious
example of Lotrich’s union activity that would have likely an-
tagonized AFT-NM was his conduct during the August 17,
2011 meeting concerning his layoff. As the taped conversation
reflects, Lotrich challenged Trujillo on almost every point that
she raised. He accused her of violating the collective-
bargaining agreement as well as violating the National Labor
Relations Act. He challenged the executive council’s right to
reorganize and questioned the financial necessity for the re-
structuring. He argued various portions of the collective-
bargaining agreement as a basis for transferring him to another
position in lieu of his layoff. Although the nexus between his
protected activity and his suspension and termination is some-
what tenuous, I cannot ignore Kathy Chavez’ threat to get even
with Lotrich because of his attempt to get the no-confidence
vote against her. While I have not found Chavez’ threat to have
a significant impact on Lotrich’s layoff, I find that it carries
more weight in assessing AFT-NM’s motivation in suspending
and terminating Lotrich. As discussed above, the decision to
layoff Lotrich and Eleanor Chavez was made by a decisional
body of more than 30 individuals. There is no evidence that
Lotrich’s union or protected activity was considered by this
body in their decision to restructure the AFT-NM staff. It
simply isn’t reasonable to conclude that all of these deci-
sionmakers were motivated to layoff Lotrich because of his
conduct in the April 18, 2011 internal union meeting.
The field narrows, however, as to the individuals involved in
the decision to suspend and terminate Lotrich. Chavez was
present during an August 24, 2011 conference with AFT-NM
officers as well as Kaseman and Aber-Towns from AFT. It
was determined during that call that Lotrich would be offered a
resignation settlement. If he refused the settlement, he would
be terminated. Thus, while there is no direct evidence to show
that Lotrich was suspended and terminated because of Chavez’
animus for his union activity or because of his vigorous asser-
tions of his rights during the layoff interview, an inference may
be drawn from the record as a whole. Embassy Vacation Re-
sorts, 340 NLRB 846, 848 (2003).
Once the General Counsel has established a prima facie case
and met its burden under the Wright Line analysis, the burden
shifts to the respondent to establish that it would have taken the
same action in the absence of the employees’ union or protect-
ed activity. The employer cannot carry this burden merely by
showing that it also had a legitimate reason for the action, but
must “persuade” that the action would have taken place even
absent the protected conduct “by a preponderance of the evi-
dence.” Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).
Based on the record before me, I find that AFT-NM has met its
burden under Wright Line and has demonstrated that Lotrich
would have been suspended and terminated in the absence of
any union or protected activity.
My findings are based on the following observations. If mer-
it is to be found in the General Counsel’s allegations that Lot-
rich was unlawfully suspended and terminated, a decisionmaker
must not only conclude that Lotrich did not engage in fraudu-
lent or deceptive conduct, but also that AFT-NM simply took
action against Lotrich without a valid basis. Thus, the determi-
nation of whether Lotrich engaged in conduct for which AFT-
NM would have terminated him in the absence of any union
activity rests heavily on a credibility analysis and specifically
focuses on the credibility of Lotrich’s testimony.
Lotrich admits that he made a photocopy of the original re-
ceipt that he received from Casey’s RV Park and changed the
numbers to reflect a receipt for $336 rather than $130. He
maintains that when he gave this altered receipt to Gravning, he
also gave her a copy of the original receipt showing the total
cost as $130. Gravning credibly testified that Lotrich gave her
only the altered receipt for $336. I find her testimony credible
for a number of reasons. If Lotrich had given both receipts as
he alleges and had explained why the receipts varied as he as-
serts, there would have been no reason for Gravning to send
him the email on August 16, requesting a copy of the original
receipt from Casey’s as well as a copy of his Visa receipt.
Gravning’s testimony was further corroborated by the owner
of Casey’s RV Park. Kathryn Casey testified that Gravning
telephoned her in August 2011 and not only asked about the
daily rate at the RV Park, but also asked for a copy of the re-
ceipt from Lotrich’s stay at the park in August 2011. Casey
sent AFT-NM the original receipt showing a total cost of $130
for 5 days lodging at $26 a day. When testifying, Casey not
only identified the original receipt but she also identified the
copy of the credit card receipt dated August 8, 2011, for $130.
TEACHERS AFT NEW MEXICO 453
Gravning also credibly testified that after she sent Lotrich the
email request for the original receipt as well as a copy of the
credit card receipt, he provided neither receipt. Instead, he
showed her a credit card receipt for his stay at the RV Park in
July that reflected a total bill of $52 and suggested that this
demonstrated the usual daily cost at the park. He continued this
deception when he met with Trujillo on August 17, 2011. Lot-
rich’s recording of the meeting reflects that Lotrich initiated the
conversation concerning his receipts. He volunteered that
Gravning had raised an issue with his receipt from the RV Park.
Lotrich’s tape recording of the meeting confirms that Lotrich
told Trujillo that his daily rate for the RV park was $56 and he
had a receipt from July documenting the rate as $52. He told
Trujillo that the reason for the lower rate in July was the fact
that he did not have TV service and that there was a $4 for TV
service. During cross-examination, however, Lotrich admitted
that Casey’s does not have a $4 fee for the use of a TV.
Lotrich’s testimony was totally contradicted by the testimony
of Kathryn Casey who testified that Lotrich was only charged
$130 for his lodging during the week of August 8. Casey also
produced a copy of a credit card receipt for Lotrich for July 1,
2011. The credit card receipt amount was $52. She additional-
ly produced the RV Park receipt for this same charge showing
that the $52 was for 2 days lodging at $26 a day. Thus, based
on Casey’s testimony, it is apparent that in both his conversa-
tion with Gravning and in the meeting with Trujillo, Lotrich
used the receipt for his 2-day stay in July to misrepresent his
alleged expense of $56 per day for lodging.
The credibility of Lotrich’s testimony was additionally
weakened during cross-examination when he initially asserted
that he had actually paid $156 in total for his August 2011 stay
rather than only $130, as reflected on the original receipt. He
testified that because he stayed 6 nights rather than 5, he paid
$156. When asked if he had a receipt for that sixth night, he
responded that because there was no clerk on duty when he left
on Sunday, he had simply left an additional $26 at the RV park
office. Casey, however, testified that even if the additional
payment had been left at the office for the sixth night, a receipt
would have been generated. She confirmed that although she
had checked all of her receipts for the particular dates that Lot-
rich stayed at the campsite, she found no additional receipt for
the sixth night.
During continued cross-examination, Lotrich contended that
in order to arrive at the alleged expense of $336, he had simply
estimated that the reasonable wear and tear fee for his camper
approximated $13 to $15 per day. He admitted that he then
arbitrarily picked an amount of $10.52 a day for all the other
expenses that he incurred and this brought the total to $30
above the $26 fee charged by the RV Park. Although this math-
ematical analysis creates the $336 total that Lotrich included on
the altered receipt, the alleged expense criteria have no founda-
tion. Lotrich’s rationale for claiming the $336 began when
Gravning challenged his altered receipt. In order to satisfy her
questions, he produced the credit card receipt for $52 from a
previous 2-night lodging expense in July. He continued by
volunteering this same story to Trujillo on August 17. Then,
once he was suspended, he created a new analysis in his August
25, 2011 letter; proffering internet-quoted prices for various
equipment and supplies. Although he asserts in his testimony
that he gave Trujillo some receipts on August 17 to support
these kinds of costs, he gave no specific information in support
of this claim and there is no credible evidence to support this
assertion. Finally, during his testimony, he again created a new
analysis with new estimates for his alleged daily expenses.
The credibility of Lotrich’s testimony is further challenged
by his assertion at trial that Trujillo preapproved his additional
costs for his Socorro lodging. Lotrich testified that on August
10, 2011, Trujillo met with him in Socorro to give him materi-
als to distribute. He testified that during his brief meeting with
her, he told Trujillo:
Christine, because I’m in my personal camper, there are addi-
tional costs above and beyond the actual campsite rental fee.
There’s the transportation-related costs, as well as, you know,
other incidental costs, including propane and those sorts of
things.
Lotrich testified that he asked Trujillo how she wanted him to
submit those expenses to her and she told him to “Just figure it
out.” Lotrich testified that Trujillo’s last directive to him was
“Keep it low.” Although this alleged conversation would sup-
port Lotrich’s claim that Trujillo knew about and sanctioned the
“camper usage expenses,” it is not supported by other record
evidence. When Lotrich prepared his August 25, 2011 10-page
statement for Trujillo, he described his August 10, 2011 meet-
ing with Trujillo. He stated in the document that during the
conversation, Trujillo asked him if he were staying in Socorro.
He asserts in the statement that he told her: “I am in my camp-
er at Meyer’s; this is why I am driving my red truck instead of
my Pontiac.” Lotrich included nothing more in the statement
about his conversation with Trujillo. There is no reference to
his having told her about the additional expenses for the camper
or about her giving him authorization for those expenses. Lot-
rich admitted that he never raised this alleged authorization
when he brought up the issue of the receipt in his meeting with
Trujillo on August 17 or even in the August 19, 2011 meeting
when he received in his notice of his suspension. Lotrich ad-
mitted that the first time that he told anyone that he had preap-
proval for the additional expenses was in his testimony at hear-
ing. As an explanation for never having mentioned it previous-
ly, he testified: “Nobody ever asked about the preapproval.”
Trujillo recalled her brief meeting with Lotrich in the park-
ing lot of the Socorro gas station. Trujillo recalls that she asked
him why he was in his truck. He told her that he was in his
camper. She denies that he mentioned anything to her about his
expense reports or any issues regarding his reimbursement or
receipts. I credit Trujillo’s testimony. It is reasonable that if
Lotrich had received any kind of preapproval from Trujillo on
August 10, he would have reminded Trujillo of the alleged
approval at some point during the investigative process and
certainly prior to the date of the hearing that occurred more
than 9 months after his suspension.
As discussed above, Lotrich acknowledged that he altered
the original receipt in order to receive $206 more for his lodg-
ing than he paid to Casey’s on August 8, 2011. His claim that
he left another $26 at the Park before leaving is unsupported by
credible evidence. Although he constructed a rationale as to
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
why he could have claimed for additional expenses, he did so
after AFT-NM’s decision to suspend or terminate him. The
total record evidence reflects that at the time that AFT-NM
made the decision to suspend or to terminate Lotrich, he had
submitted only the altered receipt for his August lodging and
the July receipt for $52 that Lotrich used to falsely claim that
the daily rate was $52 without the service of a TV. Casey pro-
vided to AFT-NM copies of the original receipt from his Au-
gust lodging, as well as the full receipt for his July lodging.
Thus, based on what Casey verbally reported to AFT-NM as
well as the copies of the receipts for July and August that she
provided, AFT-NM had sufficient documentation to make a
decision about Lotrich’s continued employment.
Counsel for the General Counsel asserts that AFT-NM has
treated other employees differently in similar situations; which
would show motive and pretext. The overall evidence, howev-
er, does not show that Lotrich received disparate treatment for
his conduct. AFT-NM contends that there has never been an
issue regarding a staff representative attempting to embezzle
money through the falsification of reimbursement documenta-
tion. The record contains only three other examples of disci-
pline given because of irregularities in reimbursement docu-
mentation. Employee Judy Johnson was disciplined for going
out of her jurisdictional area to attend a union event and for
also upgrading her hotel room for the event. Prior to the time
that Trujillo took office, employee John Ingram took an AFT-
NM vehicle on vacation without prior permission. Beaty was
suspended after it was discovered that he created a receipt to
get reimbursement for a meal expense that he incurred. The
meal had been at a restaurant in rural New Mexico that did not
give receipts that complied with reimbursement guidelines.
Although none of these employees were terminated, their con-
duct was significantly different from that of Lotrich.
Thus, based on the total record evidence, I find that AFT-
NM has demonstrated that it would have suspended and termi-
nated Lotrich in the absence of any protected or union activity
and I find no merit to complaint paragraphs 6(c) and (d).
9. Respondent’s argument that Lotrich engaged in
postdischarge misconduct
AFT-NM argues that Lotrich engaged in postdischarge con-
duct that relieves AFT-NM from any obligation to reinstate
Lotrich. Although, I have not found that AFT-NM unlawfully
terminated Lotrich, I find no merit to AFT-NM’s argument.
AFT-NM contends that Lotrich sought to harm AFT-NM after
his discharge by his deliberate conduct. Specifically, Respond-
ent asserts that Lotrich sought to create his own union as well
as a consulting business that would compete with AFT-NM. In
making this assertion, Respondent relies on Lotrich’s Facebook
message to a friend in which he talked about his dream of start-
ing his own union. At the time of the hearing, Stephanie Ly was
the executive vice president for the Rio Rancho School Em-
ployees Union (RRSEU.) The RRSEU is a local of the AFT.
In June 2012, she was scheduled to assume the position of
AFT-NM State president as a successor to Trujillo. Ly testified
that after Lotrich was laid off in August 2012, she telephoned
Lotrich to “catch up.” She did not know at the time of her call
that he had been terminated. Ly testified that Lotrich told her
that he had filed several grievances and that he was going to get
AFT and in particular Trujillo and Chavez for mismanaging the
Union. In the course of the conversation he told her: “We can
form our own union.” She recalled that during the conversation
he talked about the method by which her local could disaffiliate
from AFT and the kinds of costs that might be involved. In a
later email, he offered Ly a compensation package. After Ly
found out that he had been discharged, she declined.
Despite Lotrich’s assertions in the Facebook message to his
friend and in his conversation with Ly, Lotrich’s attempt to
start a consulting business or to start a new union proved un-
successful. Although Lotrich filed the necessary paperwork in
September 2011 to incorporate the new union in New Mexico,
the corporation was no longer in good standing after November
4, 2011. Lotrich testified that it was not a recognized corpora-
tion and it had never had a bank account of any kind. Although
Lotrich had initially hoped that the consulting business would
complement the new union, the business never developed. He
testified without contradiction that the consulting business nev-
er generated any income or had any clients.
In its decision in Hawaii-Tribune-Herald, 356 NLRB 661,
662 (2011), the Board clarified the applicable standard for
evaluating whether a discriminatee’s postdischarge mis-conduct
warrants forfeiture of the right to traditional remedies of rein-
statement and backpay. The standard requires the employer to
prove that the alleged misconduct is so flagrant as to render the
employee unfit for further service or that there is a threat to the
efficiency in the plant. In quoting from an earlier decision in
Trustees of Boston University, 224 NLRB 1385, 1409 (1976),
enfd. 548 F.2d 391 (1st Cir. 1977), the Board further observed
“an evaluation of post discharge employee misconduct requires
sympathetic recognition of the fact that it is wholly natural for
an employee to react with some vehemence to an unlawful
discharge.”
As counsel for the General Counsel points out, there is noth-
ing involving Lotrich’s posttermination conduct that warrants
the loss of reinstatement rights. There is nothing associated
with his conduct that implicates any violence toward AFT-NM
or its employees. There is no evidence that he would not be
able to perform his job if he were reinstated. The General
Counsel further submits that as a discriminatee, Lotrich has an
obligation to mitigate his damages and he did so by trying to
start a new business.
Although I have not found that AFT-NM unlawfully dis-
charged Lotrich or that AFT-NM must reinstate Lotrich, he
would not otherwise be in ineligible for reinstatement because
of any alleged post discharge misconduct.
D. Whether Respondents Refused to Hire James Beaty
1. Background
As referenced above, CBOP was a national program of AFT
that was created to provide individual state organizations with
needed assistance in organizing their membership and it was
funded by the AFT national, as well as from contributions from
individual members. AFT-NM worked with the national AFT
field representative who was hired to oversee the project. In
August 2011, Matt Aber-Towns was the national representative
of the AFT who oversaw the CBOP program.
TEACHERS AFT NEW MEXICO 455
2. Beaty’s union activities
Beaty was hired into CBOP as an organizer in July 2003. He
continued in this position until he was laid off in August 2011.
As a CBOP organizer, Beaty reported to both the AFT national
representative and to Trujillo. At the time of Beaty’s layoff, he
reported to AFT National Representative Matt Aber-Towns.
Prior to Beaty’s employment as a CBOP organizer, Beaty
served as a business manager for the Painters Union, legislative
coordinator for the Painters Union, secretary-treasurer for the
Building and Trades Council, as well as the New Mexico Fed-
eration of Labor. Shortly after Beaty was hired as a CBOP
organizer, the six organizers began discussions about having
their own union representation. Beaty testified that because the
organizers have been union members and worked with unions
and because they were working for a local union, they decided
that it would be good if they were unionized. On September
21, 2004, representatives of AFT-NM and the AFT signed a
voluntary recognition agreement recognizing the Collective-
Bargaining Organizing Project Staff Association (CBOPSA) as
the collective-bargaining representative of the CBOP bargain-
ing representative. Signing as representatives of the employer
were Trujillo, Chavez, and Chuck Iannello, the AFT regional
director for the Mountain States.
Beaty served as vice president, steward, and CBOPSA’s
chief negotiator for the parties’ first contract negotiations.
Beaty was also CBOP’s signatory on both the recognition
agreement and the collective-bargaining agreement. In mid-
September, Beaty was the only employee called as a witness for
the IAM in an arbitration hearing involving an AFT-NM em-
ployee’s discipline for allegedly disseminating a false rumor
about Trujillo’s daughter; a CBOP employee, and another
CBOP employee. The IAM received a favorable ruling from
the arbitrator in a decision dated November 7, 2011.
3. Beaty’s application for a position with AFT-NM
In a letter dated July 5, 2011, AFT Regional Director Jen-
nifer Kaseman notified Beaty that the AFT was terminating the
CBOP program effective August 4, 2011. With the closure of
the program, Beaty and the other four organizers were laid off
on August 4, 2011. On July 18, 2011, Beaty sent an email to
Trujillo reminding Trujillo that she had offered to write a letter
of recommendation for him. He told Trujillo that he would
take her up on her offer and he asked her when that letter might
be ready. On the same day, Trujillo created a letter to be sent
to the Communication Workers of America (CWA) concerning
Beaty. She described Beaty’s experience and qualification and
recommended him for a position in the CWA’s organizing pro-
ject.
After his layoff, Beaty discovered a website entitled union-
jobs.com. The site listed the positions for the AFT-NM’s re-
structured staffing. On August 27, 2011, Beaty emailed Trujil-
lo his application for one of the organizer positions along with
his resume. When the organizer position was still posted on the
unionjobs.com website on September 20, 2011, Beaty resub-
mitted his application and resume in addition to submitting a
writing sample and training agenda document. On September
27, 2011, Beaty sent an email letter to Kathy Chavez informing
her that he had applied as an AFT national representative and
asking her to write a letter of recommendation for him. He
ended the email with a paragraph inquiring about her health and
her family. He explained that he hoped that her stress level at
work was diminishing. He added that he missed working with
her and other staff, local presidents, officers, and members. He
concluded by saying that he hoped to hear from her soon and
signed, “Your hoodlum, Jim” along with a “smiley face” emot-
icon. On October 15, 2011, Beaty sent Trujillo another email
with his application as an organizer as he had seen advertised
on the website on October 5, 2011.
4. The selection process for the new AFT-NM positions
Respondent AFT-NM selected individuals for the newly cre-
ated organizer positions through a designated hiring committee
and standardized interview process. The hiring committee was
comprised of the AFT-NM officers as well as incoming AFT-
NM President Stephanie Ly. The AFT-NM officers serving on
the hiring committee were President Trujillo, Vice President
Chavez, Vice President Myrl Tillman, Treasurer Joy Garrett,
Vice President Tim Crone, Secretary Doris Williams, Vice
President Ryan Ross, and incoming President Ly. Although
Matt Aber-Towns sat in on the interviews and facilitated the
committee’s debriefing following the interviews, he did not
vote in the selection process. Only the AFT-NM officers voted
on the selection of the applicants.
Because many of the applicants for the AF-NM positions
lived out of State, the hiring committee conducted the initial
interview with applicants by telephone. All of the applicants
were asked the same questions. Following each interview, the
committee continued with a telephone debriefing in which the
committee members discussed the applicant and evaluated the
applicant’s responses. At the completion of the debriefing, the
committee decided whether they wanted to bring the applicant
in for a second interview.
On October 26, 2011, Beaty received an email from AFT-
NM Administrative Assistant Liz Gravning, giving him the
details for his telephone interview scheduled for November 2,
2011. At the beginning of Beaty’s telephone interview, all of
the committee introduced themselves to Beaty. Beaty recalled
that most of the 20-minute interview involved his answering
questions posed by Trujillo. At the end of the interview, Trujil-
lo asked the other members if they had any questions. They did
not.
After Beaty’s interview, the committee held a short debrief-
ing. Because Aber-Towns had been Beaty’s supervisor in the
CBOP program, Aber-Towns was asked to give his opinion of
Beaty’s work. Aber-Towns told the committee that based on
his experience; he would not recommend their hiring Beaty. In
support of his recommendation, he offered to show them an
assessment that he prepared concerning Beaty in June 2011.
He did not indicate whether any of the committee members
asked to see the assessment. Stephanie Ly recalled that during
the debriefing, the committee discussed whether they wanted to
bring him in for a second interview. Ly recalled that she asked
Aber-Towns to explain why he did not recommend Beaty.
Aber-Towns explained for the committee how he had prepared
the earlier assessment after observing Beaty’s work earlier in
the year. Ly also recalled that Aber-Towns additionally told
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the committee that he had tried to help Beaty to improve his
work. After hearing from Aber-Towns, the committee unani-
mously voted to not offer Beaty a second interview. Although
Trujillo conducted the interview with Beaty, she did not partic-
ipate in the committee’s debriefing of the interview. On No-
vember 15, 2011, Beaty received a letter signed by both Trujil-
lo and Chavez informing him that he had not been selected for
the position.
5. Conclusions concerning AFT-NM’s failure
to hire Beaty
Counsel for the General Counsel asserts that AFT-NM and
AFT violated the Act by refusing to hire Beaty because of his
union activities. Counsel points out that Beaty was active with
CBOPSA and also testified at an arbitration hearing on Sep-
tember 19, 2011. Counsel concedes that there is no direct evi-
dence of animus but contends that animus may be established
by timing and associated circumstances. Counsel maintains
that there is evidence of both suspicious timing and disparate
treatment. In support of this assertion, Counsel points to the
fact that applicant Isidora Herrera was hired as an organizer and
he had also testified on behalf of the employer at the September
hearing. Additionally, counsel for the General Counsel argues
that another applicant who was hired had less experience.
The General Counsel is correct that animus may be estab-
lished through the record as a whole and through circumstantial
as well as direct evidence. In this matter, however, the overall
record does not establish the animus necessary to support a
finding of an unlawful failure to hire Beaty. Ly testified that
when she voted to not hire Beaty, she was unaware that he had
participated in an arbitration hearing between the IAM and
AFT-NM. She credibly testified that during the committee’s
deliberation, there was no mention of his testimony at this hear-
ing or about any previous union activity on behalf of the CBOP
union. Joy Garrett testified that while she was a member of the
hiring committee, she did not recall sitting in on the telephone
interview with Beaty. She was not aware that he had testified
in an arbitration hearing. Vice President Myrl Tillman also
testified that she was not aware that Beaty had testified in the
arbitration hearing. Vice President Tim Crone additionally
testified that while he participated in the committee’s debrief-
ing of Beaty’s interview, he heard no mention of Beaty’s hav-
ing testified in the arbitration hearing or any mention of Beaty’s
activities with the CBOPSA union.
The Respondents argue that the hiring committee members
would not have otherwise known about Beaty’s testimony, as
his testimony is not even mentioned in the arbitrator’s decision
that issued on November 7, 2011. Although Trujillo acknowl-
edged that she knew about the testimony because she attended
the arbitration, she did not participate in the debriefing discus-
sion following Beaty’s interview. She denies that she told any-
one else on the committee about his having testified.
The arbitration involved discipline given to an employee for
allegedly spreading false and malicious rumors about two other
employees. One of the employees complained that he was the
subject of teasing as a result of the disciplined employee’s con-
duct. During the arbitration hearing, Beaty testified that em-
ployees commonly teased each other and that he had participat-
ed in such activity. He had testified that the teasing was just
normal workplace banter and that he had not felt uncomfortable
or considered the situation as a hostile workplace. Trujillo
further testified that she did not consider Beaty’s testimony to
be adverse to the Respondents. Beaty testified that his testimo-
ny had been very short and he candidly admitted that he didn’t
know whether or not his testimony was adverse to the Re-
spondents.
Thus, there is no evidence that at any time in their delibera-
tions, the hiring committee discussed Beaty’s prior union ac-
tivities with CBOPSA or the fact that he had been called as a
witness by the IAM for the arbitration hearing. I also note that
Beaty was called as a witness by the IAM; a union with which
he was not affiliated. It is also noteworthy that Beaty apparent-
ly had more than just a business relationship with Trujillo and
Chavez. When he was laid off from the CBOP project, Trujillo
offered to write him a letter of recommendation. When he
accepted her offer, she prepared a letter immediately to send to
the CWA recommending him for a position. Beaty’s letter to
Chavez on September 27, 2011, asking her to write him a letter
of recommendation contained an additional paragraph inquiring
about her health and her family. When Beaty reached out to
both Trujillo and to Chavez, he apparently considered them to
be friends. There is no indication that he perceived them to
have any animosity toward him.
As discussed above, the Board has established a framework
for analyzing allegations of adverse employment action that
turn on employer motivation. Wright Line, 251 NLRB 1083,
1087 (1980). In order to make a prima facie case of unlawful
discrimination, the General Counsel must prove by a prepon-
derance of the evidence that (1) the employee was engaged in
protected activity; (2) the employer was aware of the activity;
and (3) the activity was a substantial or motivating reason for
the employer’s action. Ibid. The application of this analysis
does not establish a prima facie showing that AFT-NM failed to
hire Beaty because of his protected activity. Although there is
no dispute that Beaty testified in the arbitration proceeding,
there is insufficient evidence to show that the individuals on the
hiring committee other than Trujillo were aware that he had
done so. Because Trujillo did not participate in the debriefing
of Beaty’s interview, there is no evidence to show that she
shared this information with the other committee members as
they evaluated Beaty’s interview and deliberated about whether
he should be given a second interview.
The General Counsel argues that it is significant that the
AFT-NM hired Isidoro Herrera who also testified in the arbitra-
tion hearing as a witness for AFT-NM. As with Beaty, there is
no evidence to show that any of the committee members, other
than Trujillo, was aware that Herrera had done so.
As noted above, there is insufficient evidence to show that
Beaty’s arbitration testimony was in fact adverse to AFT-NM.
Wright Line requires the General Counsel to prove a link be-
tween the protected activity and the adverse employment ac-
tion. Based on the overall record, I do not find persuasive evi-
dence to establish such a connection. Accordingly, I do not
find that AFT-NM failed to hire Beaty because of his union or
protected activity.
TEACHERS AFT NEW MEXICO 457
6. Whether AFT and AFT-NM were joint employers in
failing to hire Beaty
Counsel for the General Counsel asserts that AFT-NM has a
joint employer relationship with Respondent AFT and that
these employers enjoyed this relationship as it pertains to AFT-
NM’s refusal to hire Beaty for an organizer position. Counsel
contends that the evidence demonstrates that AFT played a
significant role in the hiring of organizers by AFT-NM. Citing
NLRB v. Solid Waste Services, 38 F.3d 93 (2d Cir. 1994), Re-
spondents agree that a joint employer relationship may be
found to exist where there is sufficient evidence that one com-
pany has immediate control over the other company’s employ-
ees. In that case, the Court noted that relevant factors include
commonality of hiring, firing, discipline, pay, insurance rec-
ords, and supervision. Respondents argue that in considering
such factors, there was no joint employer relationship. Counsel
for the General Counsel points out, however, the analysis fol-
lowed by the Board in TLI, Inc., 271 NLRB 798, 799 (1984).
In TLI, Inc., the Board cited the decision of the Third Circuit in
NLRB v. Browning-Ferris Industries, 691 F.2d 1117 (1982), in
which the court found that where two separate entities share or
codetermine those matters governing the essential terms and
conditions of employment, they are considered joint employers
for purposes of the Act. The Board also held in its decision in
Laerco Transportation & Warehouse, 269 NLRB 324, 325
(1984), that in order to establish such a joint employer status,
there must be a showing that the employer meaningfully affects
matters to the employment relationship such as hiring, firing,
discipline, supervision, and direction.
Beaty credibly testified that when he was employed by AFT
as an organizer with CBOP, he received directives in his work
from both the AFT national representative, as well from Trujil-
lo. He regularly attended staff meetings with the AFT-NM
officers and staff. AFT Regional Director Kaseman attended
the June 18, 2011 executive council meeting when the council
discussed the financial circumstances of AFT-NM and Kase-
man presented her assessment of the situation. She even pre-
dicted that changes would likely be made in the CBOP program
as well as in staffing. Aber-Towns acknowledged that he also
participated in meetings and in conference calls with the AFT-
NM officers in which the AFT-NM restructuring and staff rea-
lignment was discussed. He admitted that he assisted AFT-NM
in the hiring process for the employees selected after the re-
structuring. He worked with the AFT-NM officers in devising
job descriptions and also in choosing the questions that would
be used to interview and to evaluate the applicants. Aber-
Towns sat in on all of the interviews with applicants and then
facilitated the discussions among the hiring committee after
each applicant was interviewed. After the committee’s inter-
view with Beaty, Aber-Towns specifically recommended
against his being hired. Although some of the committee asked
Aber-Towns to explain his recommendation, the committee
followed his recommenda-tion and Beaty was not offered a
second interview. I also note that both Kaseman and Trujillo
represented management in AFT-NM’s bargaining with the
IAM.
Based on the record evidence discussed above, it is apparent
that AFT actively participated with AFT-NM in decisions and
processes that “meaningfully” affected such matters as hiring,
supervision, and direction. Accordingly, I find that AFT and
AFT-NM have been joint employers of the organized employ-
ees of AFT-NM as alleged in consolidated complaint paragraph
2(e). The consolidated complaint also alleges in paragraph 2(d)
that AFT has exercised control over the labor relations policy
of AFT-NM for the organized employees of AFT-NM. While I
find that AFT-NM and AFT were joint employers with respect
to the failure to hire Beaty, there is no record evidence to sup-
port a finding that overall AFT exercises control over AFT-
NM’s labor relations policy. Accordingly, I do not find merit
to paragraph 2(d).
CONCLUSIONS OF LAW
Respondents American Federation of Teachers New Mexico,
AFL–CIO (AFT-NM) and American Federation of Teachers
(AFT) are employers engaged in commerce within the meaning
of Section (2), (6), and (7) of the Act.
1. Respondent AFT-NM and Respondent AFT are joint em-
ployers of the organized employees of AFT-NM.
2. The International Association of Machinists & Aerospace
Workers, AFL–CIO, Local Lodge 794 (IAM) and AFT New
Mexico Collective-Bargaining Organizing Project Staff Associ-
ation (CBOPSA) are labor organizations within the meaning of
Section 2(5) of the Act.
3. By creating an impression among its employees that their
union activities were under surveillance, Respondent AFT-NM
violated Section 8(a)(1) of the Act.
4. By interrogating employees about their union activity, Re-
spondent AFT-NM violated Section 8(a)(1) of the Act.
5. By threatening employees with unspecified reprisals be-
cause they engaged in union activity, Respondent AFT-NM
violated Section 8(a)(1) of the Act.
6. By orally promulgating an overly-broad and discriminato-
ry rule prohibiting employees from expressing their concerns
about management, Respondent AFT-NM violated Section
8(a)(1) of the Act.
7. By orally promulgating an overly-broad and discriminato-
ry rule prohibiting its employees from engaging in union activi-
ties by telling employees they had no right to call for a no-
confidence vote during a union meeting, Respondent AFT-NM
violated Section 8(a)(1) of the Act.
8. By orally promulgating an overly-broad and discriminato-
ry rule prohibiting its employees from engaging in union activi-
ties by telling employees it was in their best interest not to take
vocal positions at the bargaining table during contract negotia-
tions involving the IAM and Respondent AFT-NM, Respond-
ent AFT-NM violated Section 8(a)(1) of the Act.
9. By orally promulgating an overly-broad and discriminato-
ry rule prohibiting its employees from engaging in union activi-
ties by telling employees they were being too vocal at the bar-
gaining table, Respondent AFT-NM violated Section 8(a)(1) of
the Act.
10. By orally promulgating an overly-broad and discrimina-
tory rule prohibiting its employees from engaging in union
activities by telling employees that AFT-NM accomplished a
lot at the bargaining table when they did not engage in union
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
activities, Respondent AFT-NM violated Section 8(a)(1) of the
Act.
11. By denying the request of its employee to be represented
by the Union during an interview when the employee has rea-
sonable cause to believe the interview would result in disci-
pline, Respondent AFT-NM violated Section 8(a)(1).
12. By conducting a disciplinary interview with an employee
even though AFT-NM had denied the employee’s request for
union representation, AFT-NM violated Section 8(a)(1) of the
Act.
13. By maintaining an overly-road and discriminatory provi-
sion in its collective bargaining agreement with the IAM pro-
hibiting employees from engaging in union activities at work,
Respondent AFT-NM has violated Section 8(a)(1) of the Act.
14. Respondent AFT-NM and Respondent AFT have not
violated the Act in any other manner.
REMEDY
Having found that Respondent AFT-NM has engaged in un-
fair labor practices, I find that it must be ordered to cease and
desist and take certain affirmative action designed to effectuate
the policies of the Act.
I recommend that within 14 days after service by the Region,
Respondent AFT-NM be ordered by Region 28 to post at its
Albuquerque, New Mexico, copies of an appropriate “Notice to
Employees,” a copy of which is attached hereto as “Appendix”
for a period of 60 days in order that employees my be apprised
of their rights under the Act and the Respondent AFT-NM’s
obligation to remedy its unfair labor practices.
[Recommended Order omitted from publication.]