Brawley Beef, LLC

National Labor Relations Board - Administrative Judge Opinions

Mar 18, 2003

21-CA-035031 (N.L.R.B. Mar. 18, 2003)

JD(SF)—21—03
El Centro, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

BRAWLEY BEEF, LLC

and Case 21-CA-35031-1

MARTHA MARQUEZ, An Individual

and Case 21-CA-35031-2

LORENA RIVAS, An Individual

Stephanie Cahn, Esq., of Los Angeles,
California, for the General Counsel.

Gregg J.Tucek, Esq., of Phoenix,
Arizona, for the Respondent.

DECISION

Statement of the Case

JAMES L. ROSE, Administrative Law Judge: This matter was tried before me on
January 22, 2003, at El Centro, Califonia, upon the General Counsel’s complaint which
alleged that the Respondent committed certain violations of Section 8(a)(1) of the
National Labor Relations Act, as amended, 29 U.S.C. §151, et seq. by terminating the
two charging parties on March 15, 2002,1 for having engaged in protected, concerted
activity.

The Respondent generally denied that it committed any violations of the Act and
affirmatively contends that Martha Marquez and Lorena Rivas were discharged because
they refused to do their assigned work.

Upon the record as a whole, including my observation of the witnesses, briefs
and arguments of counsel, I hereby make the following findings of fact, conclusions of
law and recommended order:

1 All dates are in 2002, unless otherwise indicated.
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I. JURISDICTION

The Respondent is a California corporation engaged in the business of beef
processing at a facility in Brawley, California. In the course and conduct of this
business, the Respondent annually purchases and receives at goods, products and
materials directly from points outside the State of California valued in excess of
$50,000. The Respondent admits, and I conclude, that it is an employer engaged in
interstate commerce within the meaning of Sections 2(2), 2(6) and 2(7) of the Act.
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II. THE ALLEGED UNFAIR LABOR PRACTICES

A. The Facts.

The Respondent began operations on December 24, 2001, and now has about
700 employees engaged in various aspects of beef processing. Included in this process
is the operation of Super Vac machines on six lines. Machine operators pick up cuts of
meat and from a conveyor belt and place them on a machine to be sealed, vacumned
and dried. Line No. 1 processes beef rounds, which weigh an average of 10 pounds;
however, Martha Marquez testified that at least on her last day, in addition to rounds
there were other, heavier, cuts. Typically two employees are assigned to a machine.

On March 15, Marquez was assigned as the operator on Line 1 and after a short
time, Rivas was assigned to help on Line 1. Rivas had returned to full duty that day,
having worked the previous three months on limited lifting due to a hand injury. Marquez
testified that the meat she was lifiting was not too heavy, but cuts that Rivas had,
apparently from another conveyor belt, were heavy. Rivas complained to Marquez
about the heaviness of the meat she had to lift and Marquez agreed, having come over
to Rivas’ side to help her. They discussed this issue, although continuting to work, and
concluded that a man should be assined to the line to help lift the heavier cuts.

They complained to Cecilio Albanez, the trainer, who helped for a while, and then
he left. They subsequently complained to Carman Clayton, a lead person under Debbie
Regino, the then supervisor in packaging. Clayton said she would talk to Regino.
Clayton returned and told them that Regino said they had to do their job. Later Marquez
told Clayton they wanted to speak to the supervisor above Regino and unable to do so,
asked to speak to Jose Castaneda, the fabrication superintendent. Then about 10:30,
Patricia Madrano, another lead person, told them to report to Personnel after lunch.

According to Regino, Albanez came to her and said that Marquez and Rivas
“were refusing to do the work. That they did not want to be on that line.” She told him to
tell Marquez and Rivas that they had just started their rotation (a system put into effect
the day before) and they would have to work on that machine for a week. Then
Madrano told Regino that Marquez Rivas “didn’t want to be on that machine because the
product was too heavy, and they were refusing to do the work over there.” That they
were actually refusing to work Regino knew not to be true, since she asked “Are they
keeping up?” and Madrano told her they were. Then somewhat later, Clayton came to
her with a report that Marquez and Rivas “did not want to be on that machine, that the
meat was heavy. . . .” Regino also asked Clayton “if everything was running okay, and
she said yes.”

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Regino testified that after finished what she was doing, and after a second report
that Marquez and Rivas wanted to talk to Castaneda, she went looking for Castaneda.
She could not find him, but she did locate Sam Falk, who apparently is the next step
above Castaneda. She explained the situation to Falk who told her, since she had
explained the rotation system to everyone the day before, she should send Marquez and
Rivas to Human Resources.
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Regino reported to Elizabeth Cota, the Human Resources Manager. Cota told
Regino to prepare separation notices for Marquez and Rivas and to have them report to
her after lunch. Cota testified that her investigation consisteted only of reviewing the
personal files of Marquez and Rivas and talking to Regino. Cota testified that she first
talked to Marquez and Rivas separately and then to them together in the presence of
Regino. As a result of these discussion, Cota decided to discharge them and signed the
previously prepared separation notices, which read in material part:

What was the Final Circumstance Leading to Separation? (Printed on
form.) Unsatisfactory Employee. Unwilling to do the work required.
Complaining of work too hard, too heavy, too fast etc. The two former
operators are women & able to do the work. (In handwriting,
presumably Regino’s.)

Cota testified that they were before her “because I wanted to make sure that they
were not refusing to do the job, but I asked them, I asked Lorena and Martha, ‘If I put
you back on the line, are you going to do the job,’ and they said, ‘No, we’re not going to
do that job.’ And so after hearing them say that, then that’s when I used Debbie’s form,
the separation notice. I used it to terminate their employment with us.”

Marquez and Rivas denied that they were asked by Cota if they would do their
job and said they would not.

B. Analysis and Concluding Findings

The General Counsel contends that the Respondent terminated Marquez and
Rivas for engaging in concerted activity protected by the Act – complaing about the
heavy lifting they were required to do. The Respondent argues that they were not
discharged for complaining. They were discharged because they had refused to do their
job and when asked by Cota if they would work on the line, they said they would not.

There is little question that the weight required to be lifted is a working condition
and that the complaints by Marquez and Rivas were concerted. See generally Meyers
Industries, 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C.
Cir. 1985), cert. denied 474 U.S. 948 (1985), reaffd. 281 NLRB 882 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987) cert. denied 487 U.S. 1205 (1988).
While the Meyers holding has been recently questioned by former Chairman Gould and
former Member Browning without elaboration [Aroostook County Regional Opthalmology
Center, 317 NLRB 218 (1995); Liberty Natural Products, Inc., 314 NLRB 630 (1995)] it
continues to form the basis for analyzing when activity of employees is concerted.
Though in the very early stages of what might have lead to group action, I conclude that
the joint complaints by Marquez and Rivas amounted to concerted activity. I note that
the heaviness issue was first raised by Rivas, since she had just returned from limited
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JD(SF)—21--03
duty and was assigned a job where the meat was heavier than that which Marquez
was lifting. However, Marquez soon joined in the complaint, and was the spokesperson
for an issue common to both. (Marquez is bilingual. Rivas is not.)

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The Respondent does not question either that complaining about the heaviness
of work is protected or that the complaints of Marquez and Rivas were concerted. The
basic argument of the Respondent was that Marquez and Rivas had refused to do their
assigned jobs and when confronted by Cota, said they would not do the work. They
were therefore changing the work rules and their action was not protected. Whether
they in fact refused to do their assigned duties, and told Cota that they would not even if
she returned them to the line is the principal fact issue in this matter. On this there is a
direct credibility conflict between Cota /Regino and Marquez /Rivas I credit Marquez
and Rivas and discredit Cota and Regino.

First, there is nothing in the separation notices indicating that they had refused to
do the work required or told Cota they would not. If, as Cota testified, the reason
Marquez and Rivas were discharged was because they told her they would not work on
the line to which the assigned, surely such would have been noted on their separation
notices.

While Regino repeatedly testified that they were refusing to work, she also
repeatedly testified that on asking her lead persons if everything was running okay, she
was told it was. Noone testified that they observed Marquez and Rivas not doing their
assigned tasks. The sum of the Respondent’s witnesses is that they did the work, but
did not want to because of some of the meat was too heavy, and wanted to have this
situation rectified. Regino testified that their complaint had been that the job they were
required to do was unsafe for women and that men should be assigned to lift the heavier
cuts. The fact tht Regino disagreed, testifying that women had been doing the job, does
not disprove the protected, concerted nature of the employees’ complaint.

I conclude that Marquez and Rivas were discharged because they complained
about the heaviness of the product they were required to lift and that such, in this
context, was concerted acivity protected by the Act. Accordingly, I conclude that the
Respondent violated Section 8(a)(1) in discharging them. I reject the Respondent’s
contention that since it had not discharged others for complaining about working
conditions, it did not discharge Marquez and Rivas for this reason. The testimony Cota
and Regino about other complaints is simply too general to be of much relevance to this
situation.

IV. REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I
conclude that it should be ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act, including offering Martha
Marquez and Lorena Rivas reinstatement to their former jobs, or if those jobs no longer
exist, to substantially equivalent positions of employment and make them whole for any
loss of wages and other benefits they may have suffered, with interest, in accordance
with the formula set forth in F.W. Woolworth Co., 90 NLRB 289 (1950) and New
Horizons for the Retarded, 283 NLRB 1173 (1987).

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On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended 2

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ORDER

The Respondent, its officers, agents, successors and assigns shall:

1. Cease and desist from:

a. Discharging or otherwise discriminating against employees because they
make concerted complaints about wages, hours and other terms and
conditions of employment.

b. In any like or related manner, interfering with, restraining or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the
Act.

2. Take the following affirmative action deemed necessary to effectuate the policies of the
Act:

a. Offer Martha Marquez and Lorena Rivas, immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to substantially equivalent
positions of employment, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them and whole for any loss
of earnings and other benefits suffered as a result of the discrimination
against them in the manner set forth in the Remedy section of this decision.

b. Within 14 days from the date of this Order, remove from its files any
reference to the unlawful discharges, and within 3 days thereafter notify the
employees in writing that this has been done and that the discharges, will not
be used against them in any way.

c. Preserve and, within 14 days of a request, make available to the Board or its
agents for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due under the terms of
this Order.

2If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be
deemed waived for all purposes.

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d. Within 14 days after service by the Region, post at its facility in El Centro,
California, copies of the attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for Region 21, after being
signed by the Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed any facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all former employees employed by the Respondent at
any closed facility since the date of this Order. The notices will be both in
English and Spanish.
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e. Within 21 days after service of this Order, inform the Region, in writing, what
steps the Respondent has taken to comply therewith.

Dated San Francisco, California, March 18, 2003.

____________________
James L. Rose
Administrative Law Judge
3 If this Order is enforced by a Judgment of the United States Court of Appeals, the
words in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR
RELATIONS BOARD” shall read “POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD.”
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El Centro, CA

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

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

WE WILL NOT discharge or otherwise discriminate against our employees because they
concertedly complain about wages, hours or other terms and conditions of employment.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL offer Martha Marquez and Lorena Rivas reinstatement to their former jobs
and we will give them backpay, with interest, and otherwise make them whole for any
losses they may have suffrered as a result of our discrimination against them.

Brawley Beef, LLC
(Employer)

Dated By
(Representative) (Title)

This is an official notice and must not be defaced by anyone.

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union
representation and it investigates and remedies unfair labor practices by employers and unions. To find out more
about your rights under the Act and how to file a charge or election petition, you may speak confidentially to any
agent with the Board’s Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
888 Sourth Figueroa Street – 9th Floor
Los Angeles, CA 90017-5449
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER. Telephone 213-894-5229

JD(SF)—21--03

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