SBM Site Services, LLC

National Labor Relations Board - Board Decisions

Jun 13, 2019

367 NLRB No. 147 (N.L.R.B. 2019)

367 NLRB No. 147
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
SBM Site Services, LLC and Jose La Serna and Ester
Quintanilla and Adilio Prieto and Luz Dary Du-
que Lopez. Cases 20–CA–157693, 20–CA–
157705, 20–CA–157761, and 20–CA–157884
June 13, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
On October 5, 2017, Administrative Law Judge Amita
Baman Tracy issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent filed
a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions only to the
extent consistent with this Decision and Order, and to
adopt the recommended Order as modified and set forth in
full below.
The judge found that the Respondent violated Section
8(a)(3) and (1) by suspending and discharging employees
Jose La Serna and Adilio Prieto and by discharging em-
ployee Ester Quintanilla. Contrary to the judge, we find
that even assuming the General Counsel met his initial
burden to show that union activity was a motivating factor
in the discharge of Quintanilla and the suspension and dis-
charge of Prieto,2 the Respondent met its defense burden
of showing that it would have taken the same action even
absent their union activities. Accordingly, we reverse the
judge and dismiss those allegations.
I. BACKGROUND FACTS
The Respondent provides facilities management ser-
vices to large corporations and businesses, including

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
2 The Respondent did not except to the judge’s findings that its sus-
pension and discharge of La Serna were unlawful. However, it did ex-
cept to the reinstatement and backpay remedies recommended by the
judge for La Serna. We address that issue in Sec. III below.
There are no exceptions to the judge’s dismissal of the allegations that
the Respondent unlawfully suspended and discharged employee Luz
Dary Duque Lopez.
custodial services and good manufacturing practices
(GMP) work.3 Since June 2011, the Respondent has pro-
vided a custodial services work force for Genentech, a bi-
otechnology company that manufactures pharmaceuticals
at its South San Francisco facility (the facility). That work
force includes lead employees,4 GMP technicians who
work in controlled areas, and custodians who work in un-
controlled areas. The Respondent considers workplace
safety an important matter and, to that end, provides em-
ployees with a handbook and safety manual, available in
both English and Spanish.
SEIU-United Service Workers West Local 1877 (the
Union) represents the Respondent’s work force at the fa-
cility. La Serna, Prieto, and Quintanilla served as unit
shop stewards.5
II. ALLEGED 8(A)(3) DISCRIMINATORY DISCIPLINE
A. Ester Quintanilla
1. Facts
On March 5, 2015,6 at 11:30 a.m., Quintanilla was in-
jured while working when another employee pushed a
door into her arm. Contrary to the Respondent’s rule that
employees immediately report even the slightest on-the-
job injuries, Quintanilla reported the injury at the end of
her shift, 3-1/2 hours after it happened. Shortly after
Quintanilla reported her injury, Senior Environmental
Health and Safety Manager Bryan Hawes emailed other
management personnel. The email stated that Quintanilla
alleged she had called her direct supervisor, Marcia Silva,
about the injury but that Silva denied receiving any calls
from Quintanilla. The email further noted that the proper
disciplinary action for Quintanilla’s late reporting would
be investigated.
On March 10, Facility Manager Eli Kahn initiated a
“Request for Disciplinary Action” against Quintanilla.
The next day, Safety Manager Ulices Cazarez met with
Quintanilla to investigate the incident. Quintanilla
claimed that her injury occurred on March 6 and that she
had attempted to contact Silva that day. Cazarez advised
Quintanilla that the documentation showed that the
3 GMP are rules and regulations defined by the Food and Drug Ad-
ministration (FDA) requiring companies producing food, drugs, or cos-
metics to meet certain standards in order to sell their products and to
maintain logs and documentation for FDA review, if warranted. The
FDA periodically performs inspections to ensure compliance with all
rules and regulations.
4 Leads are janitors with the additional responsibility of directing or
assigning employees under a supervisor’s guidance.
5 La Serna served as steward since 2006, Prieto served as steward
since 2011, and Quintanilla became a steward on March 26, 2015.
6 All dates are in 2015 unless otherwise noted.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
incident occurred on March 5 and reminded her of the Re-
spondent’s rule to report accidents immediately. On
March 13, the Respondent issued Quintanilla a written
warning for “failing to report a [work-related] injury im-
mediately to management.”
On March 26, Quintanilla asked La Serna to represent
her in a meeting she requested with management about the
warning. Quintanilla, La Serna, Kahn, and Employee Re-
lations Manager Sonia Trinidad attended the meeting, dur-
ing which Quintanilla argued that the discipline was unfair
as she had called to report her injury on March 6, which
she insisted was the date of the incident. Quintanilla
showed Kahn her March 6 phone log, which reflected a
call from Silva. Kahn pressed Quintanilla on the date be-
cause the Respondent’s documentation showed that the in-
jury occurred on March 5, but Quintanilla repeated that
her injury occurred on March 6. Kahn asked Quintanilla
for a copy of her phone log and a written statement of
events. Kahn promised to review the matter and give
Quintanilla a response by the end of the day. Based upon
Kahn’s review of the evidence, he concluded that Quinta-
nilla had intentionally tried to falsify the timing of her in-
jury to avoid discipline for failure to promptly report it.
Also, on March 26, Trinidad consulted with Human Re-
sources Director Janice Periolat, who recommended that
Trinidad interview and obtain a statement from Quinta-
nilla and suspend her pending investigation. Trinidad held
another meeting several hours after the first meeting and
La Serna again represented Quintanilla. During the meet-
ing, Trinidad presented Quintanilla with a disciplinary no-
tice that stated she was being suspended for “[f]alsifying
information about the security incident pertaining to work
that occurred on March 5” and that “[f]inal disciplinary
action will be determined by the Human Resources depart-
ment after the conclusion of an investigation and/or the
review of the disciplinary file of the employee.”7
While these disciplinary meetings were occurring on
March 26, unit employees elected Quintanilla as their
shop steward.
Following Quintanilla’s meeting with management, Pe-
riolat investigated the alleged falsification. On March 27,
Cazarez submitted a statement to Periolat regarding his
March 11 interview with Quintanilla; on April 7, Silva and
another manager submitted statements regarding Quinta-
nilla’s injury;8 and the other employee involved in the in-
cident submitted a statement dated April 8 to Kahn.9 In
addition to these statements, Periolat reviewed relevant

7 Quintanilla’s suspension is not alleged as a violation of the Act.
8 Also, on April 7, the Respondent and Union met and, among other
things, briefly discussed Quintanilla’s suspension. Quintanilla repeated
her claim to Human Resources Vice President Paul Emperador, Periolat,
policy, handbooks, employees’ acknowledgment of re-
ceipt of handbooks, emails, the accident package, and
Quintanilla’s work history. Periolat prepared an investi-
gative summary that stated, “All evidence is that [Quinta-
nilla] provided false and misleading statements related to
a workplace injury ... [recommend] termination,” and that
progressive discipline would not apply because of the “se-
riousness and egregiousness of the actions,” as Quintanilla
“lied” despite having been given chances to be honest.
Kahn agreed and Periolat discharged Quintanilla on April
9. The termination notice stated that Quintanilla provided
“false and misleading information related to a workplace
injury.”
The parties stipulated that, among other things, Quinta-
nilla (1) willfully provided false information to the Re-
spondent regarding the date of her injury; (2) willfully pro-
vided false information to avoid lawful discipline issued
on March 13; and (3) refused to retract her submission of
false information in her suspension meeting although she
was given several opportunities to do so.
2. Analysis
Where, as here, an employee’s discharge is alleged as a
violation of Section 8(a)(3) of the Act and the motive for
that discharge is in dispute, the Board requires the General
Counsel to make an initial showing sufficient to support
an inference that union activity was a motivating factor in
the employer’s discharge decision. The burden then shifts
to the employer to demonstrate that it would have taken
the same action even in the absence of union activity.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). If the
evidence establishes that the reasons given for the em-
ployer’s actions are pretextual, the employer fails by def-
inition to show that it would have taken the same action
for those reasons absent the protected conduct, and there
is no need to perform the second part of the Wright Line
analysis. Golden State Foods Corp., 340 NLRB 382, 385
(2003). Additionally, the employer’s defense burden is
not met by merely showing that the employer had a legit-
imate reason for its action. Rather, the employer must per-
suade by a preponderance of the evidence that it would
have taken the same action even in the absence of the pro-
tected conduct. See Roure Bertrand Dupont, Inc., 271
NLRB 443, 443 (1984).
Applying Wright Line, the judge found that the General
Counsel met his initial burden by demonstrating that
Quintanilla’s union activity was a motivating factor in her
and Kahn that the incident occurred on March 6 and alleged that the Re-
spondent’s evidence was fabricated.
9 The record reveals that, although the Respondent did not receive the
employee’s written statement until April 8, a manager had spoken with
him about the incident prior to March 26.
SBM SITE SERVICES, LLC 3
discharge. The judge further found that the Respondent’s
reasons for the discharge were pretextual. In light of the
finding of pretext, the judge did not engage in the second
step of the Wright Line analysis—requiring the employer
to show that it would have taken the same adverse action
even in the absence of protected activity. See Golden
State Foods, supra. Rather, the judge merely noted, with-
out explanation, that the Respondent “failed when the bur-
den shifted to it to justify its decision to terminate Quinta-
nilla.”10
We find merit in the Respondent’s exceptions to the
judge’s analysis. Assuming arguendo that the General
Counsel met his initial burden to show that union activity
was a motivating factor in the discharge,11 we conclude
that the Respondent met its defense burden by demonstrat-
ing that it would have discharged Quintanilla because of
her dishonesty even in the absence of her protected activ-
ity.
To meet its defense burden, the Respondent must show
that “it had a reasonable belief that the employee commit-
ted the offense, and that it acted on that belief when it dis-
charged [the employee].” McKesson Drug Co., 337
NLRB 935, 937 fn. 7 (2002); see also Cellco Partnership
v. NLRB, 892 F.3d 1256, 1262 (D.C. Cir. 2018) (“The only
question is whether the company excused someone it rea-
sonably believed was lying[, and the employer] has made
a legitimate business judgment—a not unusual one—that
an employee lying during an investigation is a serious
threat to management.”). Where the employer demon-
strates that it had such a reasonable belief, it must still
show it would have, not merely that it could have, taken
the same action absent the employee’s protected conduct.
See St. Paul Park Refining Co., LLC, 366 NLRB No. 83,
slip op. at 16 (2018) (citing 6 West Limited Corp., 330
NLRB 527, 528 (2000)); see also GHR Energy Corp., 294
NLRB 1011, 1012–1013 (1989) (finding that the em-
ployer met its Wright Line burden by establishing that it
would have suspended two employees even in the absence
of their protected activity because, based on its investiga-
tion, it reasonably believed that the employees had en-
gaged in serious misconduct).
The record shows that the Respondent reasonably be-
lieved Quintanilla lied regarding the date of her workplace

10 We assume that, in making this finding, the judge relied on the
comparators mentioned in the judge’s pretext analysis.
11 Because we assume arguendo that the General Counsel has made a
prima facie case, we do not endorse or reject the judge’s analysis of the
General Counsel’s burden, nor the judge’s finding that the General Coun-
sel established pretext. In fact, as discussed below, in analyzing the Re-
spondent’s defense, we specifically find that the basis for the judge’s
finding of pretext—disparate treatment—is not present here.
12 The judge noted that Aguilar submitted the following “false state-
ment” on a disciplinary form: “I am not in agreement with the sanction
injury, and in fact the parties stipulated that she willfully
provided false information to avoid lawful discipline.
Moreover, she was repeatedly dishonest, doubling down
on her false assertion even when presented with contrary
evidence and given opportunities to self-correct. The Re-
spondent’s handbook provides that immediate termination
may be issued if an employee willfully falsifies or misrep-
resents information. Because Quintanilla’s willfully false
information to evade the consequences of her actions falls
directly within this handbook provision, the Respondent’s
decision to terminate her was consistent with its stated pol-
icies. The termination notice is consistent, showing ter-
mination for this lawful reason.
We also disagree with the judge’s finding that the Re-
spondent treated Quintanilla disparately, concluding in-
stead that it would have discharged Quintanilla regardless
of any protected activity. The judge relied on the compar-
ators presented by the General Counsel—dishonest em-
ployees who were disciplined by the Respondent but not
terminated. We find that these comparators are inappo-
site. Specifically, the judge pointed to employee Rene
Aguilar, who received a warning and suspension for sign-
ing cleaning logs without completing the work.12 How-
ever, Aguilar’s and Quintanilla’s misconduct are distin-
guishable because Quintanilla, after receiving an appro-
priate discipline for failing to immediately report an in-
jury, was repeatedly dishonest, even in the face of con-
flicting evidence, and presented false evidence to support
her lie. There is no evidence that Aguilar engaged in sim-
ilar compounding misconduct by attempting to cover up
the underlying wrongdoing. Additionally, we find that the
other comparators cited by the General Counsel and refer-
enced vaguely by the judge are also distinguishable be-
cause they engaged in less severe misconduct: employee
Roberto Perez received a warning for providing mislead-
ing information in the restroom cleaning log; employee
Maria Elena Rodriguez received a warning for backdating
a log; and employees Beatriz Alcantara and Orlin Mendez
received warnings for leaving work before the end of their
shift.13 Accordingly, we find insufficient evidence that the
Respondent treated Quintanilla disparately, and we dis-
miss the allegation that her discharge violated Section
8(a)(3) and (1). See Walker Stainless, Inc., 334 NLRB
that was imposed on me…what this note says is false.” However, the
record does not indicate that Aguilar was disciplined for this statement.
13 Although not discussed in the judge’s analysis of Quintanilla’s dis-
charge, the Respondent has previously discharged an employee for lying.
As noted in the discussion of Prieto’s discharge, in September 2013, the
Respondent discharged employee Veronica Barajas for failing to clean a
room and then lying when questioned. This evidence of the Respond-
ent’s similar treatment of another employee for a similar offense supports
our finding that the Respondent met its Wright Line defense burden. See,
e.g., Merillat Industries, 307 NLRB 1301, 1302–1303 (1992).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1260, 1262 (2001) (citing Avondale Industries, 329 NLRB
1064, 1066 (1999), and finding that “an employer may still
meet its Wright Line burden by showing that ‘the disparity
in discipline between alleged discriminatees and the Gen-
eral Counsel’s comparators is attributable to differences in
work history, the severity of the misconduct, or some other
factor unrelated to union activity’”) (emphasis in original).
B. Adilio Prieto
1. Facts
Prieto worked as a GMP technician from 2013 to May
20, 2015, and served as steward from 2011 until his dis-
charge.14 Prieto received specialized multistage training,
including classroom training and training in on-the-job
techniques, and he studied standard operating procedures
and underwent knowledge assessments. He was also
trained on “good documentation practices” and the “stop
the job” policy, which requires employees to inform their
supervisors when they do not feel comfortable or safe per-
forming a task and to stop the task immediately. Prieto
reported to and was assigned tasks by lead Jose Lazo, who,
in turn, reported to Program Manager John Brodie and Su-
pervisor James Sanchez.
In certain GMP areas, employees must sign logs indi-
cating the areas they have cleaned and a pass-through log
indicating that they have sanitized cleaning equipment
brought into certain areas. Room 3218, the Cell Culture
Lab in Building 3, is the facility’s most controlled area,
and employees must document all steps taken during its
cleaning, including sanitization of equipment used. Any
log documentation for Room 3218 must have an accom-
panying log entry for Room 3219, where employees per-
form sterilization and gowning before entering Room
3218.
On May 12, Lazo asked Prieto to buff the floor along a
specific route that included Room 3218, work that was
regularly done by an employee who was absent. Prieto
accepted the assignment and acknowledged that he was
familiar with buffing. Shortly thereafter, a GMP techni-
cian notified Brodie that the May 12 logs showed that
Prieto verified cleaning Room 3218, but there was no ac-
companying verification for Room 3219.15

14 Prieto began working at the facility as a custodian in 2008. He also
participated in labor-management meetings and an April 16 march.
15 The log Prieto signed was a GMP document owned and managed
by Genentech and used as an official record for regulatory review.
16 Brodie assumed Prieto had performed the buffing but failed to sign
both logs.
17 The Respondent issues verbal warnings to employees who fail to
complete the log. It has never terminated an employee for failing to com-
plete the log.
On May 19, Brodie and Sanchez met with Prieto and
steward La Serna. Brodie showed Prieto the log and asked
him to explain the omitted verification for Room 3219.16
Prieto stated that he did not clean Room 3218 or 3219 and
that Lazo told him to sign the log for Room 3218 but did
not tell him to sign the log for Room 3219. Brodie gave
Prieto a “Request for Disciplinary Action” for failure to
document sanitization of cleaning equipment and then
stated that the matter would be referred to Human Re-
sources for investigation.17 During the investigation,
Prieto and Lazo gave written statements.
On May 20, Brodie and Manager Trinidad met with
Prieto and his representative Eduardo Fernandez and gave
Prieto a notice of suspension for “falsification of docu-
mentation [on 5/12/15].” The notice stated that final dis-
ciplinary action would be determined after an investiga-
tion and/or review of Prieto’s disciplinary file. Prieto de-
nied that he had been properly trained to perform buffing
and claimed that there had been some miscommunication
between himself and Lazo. In a May 29 letter to Human
Resources, Prieto provided a more thorough statement,
again blaming Lazo for the state of the logs.
Human Resources Director Periolat and Trinidad inves-
tigated the matter. Brodie clarified to Periolat that, alt-
hough Prieto may not have buffed Rooms 3218 and 3219
before, he had performed various tasks in the area, was
familiar with the building and log verification require-
ment, and had training in the area. Taking Prieto’s con-
duct, training, and disciplinary history into consideration,
Periolat decided to terminate him. On June 10, the Re-
spondent discharged Prieto for “falsifying documents;
providing false or misleading information, violation of
GMP Tech Job Responsibilities, [and] Violation of busi-
ness practice or policy.”
2. Analysis
The judge, applying Wright Line, found that the General
Counsel met his initial burden by demonstrating that
Prieto’s protected conduct was a motivating factor in his
suspension and discharge and that the Respondent failed
to meet its defense burden by demonstrating that it would
have taken the same action even in the absence of pro-
tected activity.18 Accordingly, the judge found the sus-
pension and discharge unlawful.
18 We disavow the judge’s statement that “[the] Respondent cannot
overcome its burden as the evidence shows that its decision to suspend
and terminate Prieto was motivated by his union and protected concerted
activity.” The judge’s finding that the Respondent’s decision “to sus-
pend and terminate Prieto was motivated by his union and protected con-
certed activity”—as to which we do not pass—was a finding that the
General Counsel met his initial burden of proof under Wright Line, supra.
The second part of the Wright Line standard specifically allows the Re-
spondent to overcome this finding by demonstrating that “the same
SBM SITE SERVICES, LLC 5
We reverse. Assuming arguendo that the General
Counsel met his initial burden,19 we find that the Respond-
ent met its defense burden by demonstrating that it would
have discharged Prieto in the absence of his protected ac-
tivity.
First, we disagree with the judge’s finding that Prieto
was treated disparately. The judge relied on comparisons
to employees who received verbal warnings for failing to
perform cleaning duties, an employee who was suspended
after failing to sign the pass-through log and backdating a
cleaning log, and other employees who were removed
from GMP instead of being terminated. However, these
comparators are not similarly situated as they engaged in
less severe misconduct—no comparator failed to clean a
highly controlled lab, falsified records (signed logs for
rooms not cleaned), and was dishonest when confronted
about the wrongdoing. Perhaps most critically, unlike
Prieto, they did not attempt to pass blame onto another
employee, compounding the initial misconduct.
Second, taking into consideration Prieto’s training, fa-
miliarity with the area and the verification requirements,
and shifting excuses for not cleaning Room 3218 in the
face of Lazo’s consistent and credited statements, we find
that the Respondent reasonably believed Prieto was
“providing false or misleading information.” See
McKesson Drug Co., supra. Moreover, as the judge rec-
ognized, the Respondent had discharged an employee in a
situation “most directly on point.” Specifically, the Re-
spondent discharged employee Veronica Barajas in Sep-
tember 2013 when she failed to clean an area, signed log
books claiming the area was cleaned, and then lied when
questioned about it. The Respondent has shown that it had
a reasonable belief that Prieto was lying and that it would
have discharged him for that, absent his union activity.
Accordingly, we find that the Respondent has met its
Wright Line defense burden, and we dismiss this allega-
tion.
III. REMEDIAL ISSUE REGARDING EMPLOYEE
JOSE LA SERNA
The judge found that the Respondent violated Section
8(a)(3) and (1) by suspending and discharging La Serna,
and there are no exceptions to those violation findings.
The Respondent argues, however, that La Serna is not en-
titled to reinstatement and that backpay should be tolled
because he engaged in conduct for which the Respondent
would have discharged any employee—specifically,

action would have taken place in the absence of the [union and protected
activity].” Wright Line, supra at 1089.
19 As with our analysis regarding Quintanilla, because we assume ar-
guendo that the General Counsel has met his initial Wright Line burden,
we do not expressly endorse or reject the judge’s analysis of the General
Counsel’s burden or the suggestion that the General Counsel
operating a competing cleaning business while employed
by the Respondent. The judge considered and rejected the
Respondent’s argument, crediting La Serna’s testimony
during the hearing that he did not start his cleaning busi-
ness until after he was terminated by the Respondent. We
affirm the judge’s recommended reinstatement and back-
pay remedies.
The Respondent’s handbook contains a rule prohibiting
employees from “[w]orking for a competing business
while [employed by the Respondent]” and noting that vi-
olations of the policy can result in “immediate termina-
tion.” The handbook also precludes employees from tak-
ing an “outside job, either for pay or as a donation of
his/her personal time, with a customer or competitor of
[the Respondent]; nor may they do work on their own if it
competes in any way with the sales or products or services
[the Respondent] provides to its customers.”
La Serna was discharged on April 23, 2015. On July 5,
2016, during a deposition in an unrelated matter, La Serna
testified that, at the time of the deposition, he was running
his own cleaning business. When asked how long he had
been in business for himself, La Serna testified that it was
“intermittent,” but about 2 years. After being questioned
about the Respondent’s “competing work” policy, La
Serna testified that he neither worked for another cleaning
business nor had his own cleaning business while em-
ployed by the Respondent.
During the hearing before the judge, Respondent’s
counsel twice asked La Serna if he stood by his deposition
testimony, and La Serna stated that he did. La Serna then
clarified that, prior to starting his cleaning business in Au-
gust 2015,20 he ran a flea market and sales business while
employed by the Respondent.
The burden lies with the Respondent to demonstrate that
La Serna engaged in the alleged misconduct. See Tel Data
Corp., 315 NLRB 364, 367 (1994), enfd. in part 90 F.3d
1195 (6th Cir. 1996). In support of its argument that La
Serna should be denied reinstatement and that backpay
should be tolled as of July 5, 2016, the Respondent relies
heavily on La Serna’s deposition testimony that he had
been in business for himself for 2 years—i.e., since ap-
proximately July 2014, about 9 months before he was dis-
charged by the Respondent. We find this reliance mis-
placed.
Although La Serna testified that he had his own busi-
ness for the 2 years preceding the deposition, he also
demonstrated pretext. Rather, we rely on the Respondent’s showing on
rebuttal that it would have discharged Prieto even in the absence of his
protected activity.
20 As the judge stated, La Serna must have “misspoken” when he tes-
tified that he started the cleaning business in August 2016.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
explicitly testified during the deposition that he neither
worked for a competitor nor ran a competing business
while employed by the Respondent. During the hearing
before the judge, La Serna repeated these claims and tes-
tified that, although he was in business for himself while
employed by the Respondent, it was a business that did
not violate the Respondent’s policy—a sales and flea mar-
ket business, which was not a competing business. While
La Serna also testified to having a cleaning business that
arguably might be a “competing” business with the Re-
spondent, the credited testimony shows that he began the
cleaning business only after the Respondent discharged
him. It was therefore not a competing business during his
employment. The Respondent failed to provide any evi-
dence establishing that La Serna violated the Respond-
ent’s policy and, therefore, failed to meet its burden of
demonstrating misconduct.
While the judge’s decision contains errors about
whether certain statements by La Serna were made during
the hearing or in the deposition, the judge’s finding re-
flects that she considered all the evidence before her (both
the deposition and hearing testimony) and ultimately cred-
ited La Serna’s testimony at the hearing that he did not
operate a competing business while working for the Re-
spondent. The Respondent failed to produce sufficient ev-
idence to overcome the deference that the Board gives a
judge’s credibility findings. See Millennium Maintenance
& Electrical Contracting, 344 NLRB 516, 517 (2005)
(noting that the evidence must clearly preponderate
against the judge’s credibility finding to overturn it). Ac-
cordingly, we adopt the judge’s recommended order that
La Serna be reinstated and awarded full backpay.
ORDER
The National Labor Relations Board orders that the Re-
spondent, SBM Site Services, LLC, McClellan, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending, discharging, or otherwise discriminat-
ing against employees because they engaged in protected
concerted activities.
(b) 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) Within 14 days from the date of this Order, offer
Jose La Serna full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent

21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Jose La Serna whole for any loss of earnings
and other benefits suffered as a result of his unlawful sus-
pension and discharge, in the manner set forth in the rem-
edy section of the judge’s decision.
(c) Compensate Jose La Serna for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director of Region 20,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar year(s).
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension and
discharge of Jose La Serna, and within 3 days thereafter,
notify Jose La Serna in writing that this has been done and
that the suspension and discharge will not be used against
him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(f) Within 14 days after service by the Region, post at
its facility in South San Francisco, California, copies of
the attached notice marked “Appendix.”21 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 20, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
March 30, 2015.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
SBM SITE SERVICES, LLC 7
(g) Within 21 days after service by the Region, file with
the Regional Director for Region 20 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. June 13, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated 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 ac-
tivities.
WE WILL NOT suspend, discharge, or otherwise discrim-
inate against you for engaging in protected concerted ac-
tivities.
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, within 14 days from the date of the Board’s
Order, offer Jose La Serna full reinstatement to his former
job or, if that job no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make Jose La Serna whole for any loss of
earnings and other benefits resulting from his suspension
and discharge, less any net interim earnings, plus interest,
and WE WILL also make him whole for reasonable search-
for-work and interim employment expenses, plus interest.
WE WILL compensate Jose La Serna for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 20, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
suspension and discharge of Jose La Serna, and WE WILL,
within 3 days thereafter, notify him in writing that this has
been done and that the suspension and discharge will not
be used against him in any way.
SBM SITE SERVICES, LLC
The Board’s decision can be found at
www.nlrb.gov/case/20-CA-157693 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Carmen Leon, Esq. and Min-Kuk Song, Esq., for the General
Counsel.
Nick C. Geannacopulos, Esq., Alison Loomis, Esq., and Candice
T. Zee, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This con-
troversy involves an extremely contentious relationship between
union shop stewards and their employer. In response to vigorous
advocacy by the shop stewards in complaining about increased
disciplinary actions against certain employees, the employer un-
lawfully suspended and terminated well known and active Shop
Stewards Jose La Serna (La Serna) and Adilio Prieto (Prieto),
and unlawfully terminated newly elected Shop Steward Esther
Quintanilla (Quintanilla). I also find, however, that the employer
properly suspended and terminated Luz Dary Duque Lopez
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(Lopez) for her credible threats to employees and the workplace.
This case was tried before me in San Francisco, California for
11 days between January 17 and February 3, 2017, based upon
charges filed by La Serna, Quintanilla, Prieto, and Lopez (col-
lectively, Charging Parties or discriminatees)). On December
30, 2016, the Acting Regional Director for Region 20, on behalf
of the General Counsel, issued an amended consolidated com-
plaint and notice of hearing alleging that SBM Site Services,
LLC (Respondent, Employer, or SBM)1 violated the National
Labor Relations Act (the Act) by: suspending La Serna on or
about March 30, 2015,2 suspending Lopez on or about April 1,
and discharging Quintanilla on or about April 9 because they en-
gaged in protected concerted activity and union activity on about
March 24 and 26 in violation of Section 8(a)(1) and Section
8(a)(1) and (3) of the Act; discharging Lopez on about April 20,
discharging La Serna on about April 23, suspending Prieto on
about May 20, and discharging Prieto on about June 10 because
they engaged in protected concerted activity and union activity
on about April 16 in violation of Section 8(a)(1) and Section
8(a)(1) and (3) of the Act.3 Respondent filed a timely answer to
the amended complaint, denying all allegations.
Counsel for the General Counsel and Respondent filed post
trial briefs in support of their positions on April 14, 2017, and
supplemental briefing on May 31, 2017. On the entire record,4
including my observation of the demeanor of the witnesses,5 and
after considering the briefs filed by the General Counsel and Re-
spondent,6 I make the following findings, conclusions of law,
and recommendations:

1 During the hearing, at times, SBM was referred to as “Somers”
which is shorthand for Somers Building Maintenance or SBM (Tr. 494–
495; Jt. Exh. 24).
2 All dates are in 2015 unless otherwise specified.
3 The General Counsel withdrew complaint par. 7(d) alleging disci-
plinary action on May 19 (GC Br. at 72, fn. 70).
4 The transcripts in this case are generally accurate, but I make the
following corrections to the record: Transcript (Tr. 5), Line (L. 21): “are”
should be “is”; Tr. 28, L. 7: “headquarters” is “headquartered”; Tr. 59,
L. 3: “Huerta” should be “Huertas”; Tr. 75, L. 15: “agree” should be
“agreed”; Tr. 89, L. 13: “saying” should be “say”; Tr. 120, L. 23: the
correct speaker is “Ms. Leon”; Tr. 122, L. 24, Tr. 132, L. 23, Tr. 321, L.
23, Tr. 322, L. 3, Tr. 329, L. 3 and L. 12: “SBN” should be “SBM”; Tr.
133, L. 17, Tr. 1180, L. 18: the correct speaker is “Mr. Geannacopulos”;
Tr. 134, L. 24: the correct speaker is “Ms. Leon”; Tr. 142, L. 2: “us ay”
should be “you say”; Tr. 198, L. 6: “raised” should be “raise”: Tr. 199,
L. 7, Tr. 204, L. 15 and L. 22 : “UOP” should be “ULP”; Tr. 223, L. 9:
the speaker is Mr. Geannacopulos, not Ms. Leon; Tr. 341, L. 14: “ADM”
should be “ABM”; Tr. 352, L. 20: “flee” should be “flea”; Tr. 409, L.
15: “overruled” should be “overrule”; Tr. 414, L. 13: “biding” should be
“binding”; Tr. 489, L. 1: “is” should be “it”; Tr. 556, L. 23: “suspicion”
should be “suspension”; Tr. 764, L. 20: “062.915” should be “062915”;
Tr. 812, L. 13, Tr. 814, L. 2, Tr. 896, L. 6: “right” should be “Wright”;
Tr. 901, L. 18: “motive” should be “motion”; Tr. 906, L. 12 and 13:
“GNP” should be “GMP”; Tr. 1098, L. 9: “Manger” should be “Man-
ager”; Tr. 1110, L. 6: the speaker is “Ms. Zee”, not “Ms. Leon”; Tr. 1143,
L. 3: “here” should be “her”; Tr. 1168, L. 13: speaker is “Ms. Leon”, not
“Ms. Zee”; Tr. 1219, L. 20: “prove” should be “proof”. In addition, in
various locations of the transcript, Loomis’ name is spelled incorrectly.
5 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION INVOLVED
At all material times, Respondent, an Oregon corporation with
an office and place of business in McClellan, California, has
been an employer engaged in the business of providing janitorial
services at commercial office buildings including Genentech at
its South San Francisco, California location which is the physical
site of all alleged unfair labor practices at issue.7 During the 12-
month period ending December 31, Respondent performed ser-
vices valued in excess of $50,000 in States other than the State
of California. Thus, Respondent has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. SEIU-USWW Local 1877 (the Union) has been a labor
organization within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects commerce
and that the Board has jurisdiction of this case, pursuant to Sec-
tion 10(a) of the Act.
II. RESPONDENT’S ORGANIZATION
SBM is a worldwide company with approximately 8000 em-
ployees in the United States that provides facilities management
services to large corporations and business offices including cus-
todial services, good manufacturing practices (GMP) work and
move crews, along with managerial services (Tr. 712, 910,
1232).8 Since June 2011, SBM has provided custodial services
for biotechnology company Genentech’s South San Francisco
facility (Tr. 39; Jt. Exh. 1).9 At the South San Francisco facility,
SBM employs approximately 220 to 225 employees, including
approximately 15 to 20 lead employees (leads) and
solely on those specific record citations, but rather on my review and
consideration of the entire record for this case, including witness testi-
mony. I further note that my findings of fact encompass the credible
testimony and evidence presented at trial, as well as logical inferences
drawn therefrom.
6 Other abbreviations used in this decision are as follows: “GC Exh.”
for General Counsel’s exhibit; “R. Exh.” for Respondent’s exhibit; “Jt.
Exh.” for Joint Exhibit; “GC Br.” for the General Counsel’s brief; “GC
Supp. Br.” for the General Counsel’s supplemental brief; “R. Br.” for
Respondent’s brief; and “R. Supp. Br.” for Respondent’s supplemental
brief.
7 All references to Genentech in this decision refer to events at its
South San Francisco, California facility.
8 The term GMP is a life sciences-industry term which is written into
a company’s right to operate contracts based on Food and Drug Admin-
istration (FDA) requirements (Tr. 713–714). GMP are a set of rules and
regulations defined by the FDA requiring companies producing food,
drugs or cosmetics to have certain quality standards in place in order to
sell their products to the countries it desires (Tr. 910). GMP work prac-
tices must meet FDA guidelines including logs and documentation for
production to the FDA if warranted (Tr. 713–714). The FDA periodi-
cally inspects the facility to ensure compliance with all rules and regula-
tions (Tr. 910–911).
9 Genentech discovers, develops, manufactures and commercializes
medicines to treat patients with serious or life-threatening medical con-
ditions (Jt. Exh. 1; Tr. 908). Prior to SBM taking over the janitorial con-
tract, PMC and AMC handled janitorial services for Genentech (Tr. 39).
Most, if not all, employees were hired by each janitorial contracting com-
pany.
SBM SITE SERVICES, LLC 9
approximately 70 GMP technicians (Tr. 40, 715, 907, 912,
1080).10
Respondent’s site manager is the highest-level management
personnel at a specific facility. From May 2014 to 2016, Eli
Kahn (Kahn) served as the site manager at the South San Fran-
cisco facility (Tr. 906, 1080). Kahn reported to Respondent’s
account manager, Debbie Castro (Castro) (Tr. 906). As site man-
ager, Kahn acted as the primary point of contact between Re-
spondent and Genentech (Tr. 906). Kahn oversaw the safety pro-
gram and the GMP and non–GMP janitorial operations, and also
reviewed and approved or disapproved requests for disciplinary
actions including warning forms (Tr. 906–907, 1036). In the or-
ganizational hierarchy, the program managers for the GMP and
non–GMP areas report to the site manager (Tr. 907). John Bro-
die (Brodie), as program manager, supervised all the GMP oper-
ations at Genentech’s South San Francisco site (Tr. 1098–1099).
Brodie also submitted requests for discipline to upper level man-
agement but did not make decisions in disciplinary actions (Tr.
1099). Reporting to the program managers are the assistant man-
agers and other level managers or supervisors who are the first-
line supervisors of the employees (Tr. 907). The GMP depart-
ment at the South San Francisco facility has approximately 6 su-
pervisors (Tr. 912).
Outside of Respondent’s hierarchical structure at Genentech’s
South San Francisco facility, Janice Periolat (Periolat) serves as
human resources director, and reports to the vice president of hu-
man resources, Paul Emperador (Emperador) (Tr. 1230). Peri-
olat’s responsibilities include compliance with collective bar-
gaining agreements between Respondent and labor organizations
as well as disciplinary investigations (Tr. 1230, 1233). Periolat
does not make decisions on verbal or written warnings but may
recommend and issue suspensions and terminations (Tr. 1239–
1240, 1268). Sonia Trinidad (Trinidad), who is Respondent’s
employee relations manager, does not work at any particular fa-
cility, but leads the orientation of new hires and assists with their
transition to Respondent (Tr. 1192, 1231). Trinidad also reports
to Emperador (Tr. 1231). Trinidad has the right to recommend,
request and issue disciplinary action (Tr. 1218).
At all material times, in addition to the above–named supervi-
sors and/or agents for Respondent, the following persons are also
considered supervisors and/or agents within the meaning of Sec-
tions 2(11) and 2(13): Marcia Silva (Silva), program manager;
Ulices Cazarez (Cazarez), environmental health & safety man-
ager; Mauricio Perez (Perez), program manager; Jorge Rodri-
guez (Rodriguez), program manager; Mike Jedan (Jedan), vice
president of operations; Brian Hawes (Hawes), senior environ-
mental health & safety manager; Lisette Mutt (Mutt), field HR
coordinator; Juan Mendoza (Mendoza), program manager; and
James Sanchez (Sanchez), GMP supervisor.
III. RESPONDENT’S EMPLOYEES AT GENENTECH’S SOUTH SAN
FRANCISCO FACILITY
Since Genentech manufactures medicines, the cleaning em-
ployees perform is highly specialized and technical (Tr. 907–

10 Leads are janitors within the bargaining unit represented by the
Union who have the additional responsibility of directing or assigning
908). As part of Genentech’s right to operate (its license to de-
velop and market its medicine in various countries), the medica-
tions must be produced in a clean environment per standard op-
erating procedures (SOPs) (Tr. 716, 908–910, 914). Cleaning
tasks vary by day, week, and month as well as location within
the facility (Tr. 360–361, 909). Daily cleaning includes remov-
ing trash, mopping and wiping and cleaning drains (Tr. 361).
Weekly cleaning includes cleaning tanks and pipes (Tr. 362).
Monthly tasks include more complete cleaning from the floor to
ceiling (Tr. 362).
Employees are divided by their work areas: custodians who
work in uncontrolled areas and GMP technicians (techs) who
work in the controlled areas (Tr. 40, 402, 715–716, 827). There
are three controlled areas at the South San Francisco facility (Tr.
716). GMP techs are required to follow SOPs, which are rules
that instruct employees on how to clean and sanitize specific ar-
eas, and are given specialized multi–stage training including
classroom training, studying SOPs and knowledge assessments,
and a few months of on–the–job training (Tr. 402, 404–406,
407–409, 909, 911, 913, 915).11 At the conclusion of their initial
training period, GMP techs are given a skills assessment where
Genentech certifies that each employee is qualified to work in
the GMP department (Tr. 411, 432, 913, 1100). Furthermore,
GMP techs access to buildings via their employee badge depends
on their training level (Tr. 916, 1234). Finally, GMP techs earn
more money than custodians due to the level of training required
to clean controlled areas (Tr. 407, 912, 1101).
At the start of every shift, the leads send employees to clean
specific areas (Tr. 363). The leads take supplies to employees,
check on employees’ cleaning areas, grade reports, check the
loading docks and make sure that everything goes well during
the shift (Tr. 951–952).
IV. RESPONDENT’S TRAINING AND HANDBOOK AND SAFETY RULES
As part of its training for all employees, Respondent provides
its employees with an employee handbook and employee safety
manual, in both English and Spanish, during new hire orientation
(Jt. Exh. 1, 3(a) and (b), 4(a) and (b); R. Exh. 130; Tr. 917, 1242).
During orientation, employees are trained on the employee hand-
book, given their expectations, and informed on how to contact
human resources, make confidential complaints, and reach pay-
roll (Tr. 1243).
The relevant handbook rules include:
 Unacceptable conduct which can lead to immediate
termination defined as willful violation of any SBM or
safety regulation, rule or policy; failure to wear re-
quired safety equipment; engaging in criminal con-
duct, acts of violence or threatening violence; threat-
ening, intimidating or coercing fellow employees for
any purpose; dishonesty, willful falsification or mis-
representation of information; and working for a com-
peting business while an SBM employee.
employees under the supervisor’s guidance and are not supervisors under
the Act (Jt. Exh. 24).
11 SOPs are also referred to as SOBs (Jt. Exh. 24).
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
 Employees agree not to engage in any business activity
which may conflict with SBM, and failure to disclose
facts shall constitute grounds for disciplinary action
including termination.
 Progressive discipline in the employee handbook
states that unacceptable behavior which does not result
in immediate dismissal may be handled with a verbal
warning, first written warning, second written warn-
ing, and dismissal. Suspensions may be included as
well.
 Zero tolerance policy for violence in the workplace or
any extreme or detrimental act including making
threats of violence toward anyone on SBM premises,
customer’s worksite, or when representing SBM, and
threatening, intimidating or coercing fellow employ-
ees for any purpose.
 All injuries, no matter how slight, must be reported im-
mediately.
Respondent considers safety an important matter in the work-
place (Tr. 916, 1100). As for safety training, employees receive
an introductory training which covers Occupational Safety and
Health Administration (OSHA) requirements for communica-
tion such as reporting hazardous materials, blood borne patho-
gens, and emergency procedures for fire or other accidents and
incidents (Tr. 916–917, 1100). Respondent instructs that in the
event of an accident or injury, employees who are physically ca-
pable, must report all accidents and injuries immediately after
the event, no matter how minor (Tr. 917; R. Exh. 130). If an
employee fails to immediately report an accident, the employee
would be committing a policy violation and progressive disci-
pline would ensue (Tr. 922).
At orientation, employees are given a checklist which indi-
cates the documents they received (R. Exh. 3, 28, 49, and 49b,
93). Employees also sign an acknowledgement which states, “I
realize that it is my responsibility to read and understand both
handbooks and to abide by all of the policies in the handbooks”
(Jt. Exh. 6). The rules contained in the handbook and safety
manual were in effect from 2011 through the dates of discipline
of La Serna, Quintanilla, Lopez, and Prieto (Tr. 254).12
In addition, Respondent provides classroom training and
weekly training called safety chats where the employees and
managers discuss current issues (Tr. 917–918, 1100). Employ-
ees have been instructed to “stop the job” if they feel unsafe or
if they have not had adequate training to complete the task, and
escalate the situation to their manager (R. Exh. 131). The train-
ing handouts also indicate that no employee would be disciplined
for stopping any job for a safety concern (R. Exh. 131). This
training was provided to employees, including Quintanilla, on
February 11 (R. Exh. 132). Employees have also been given
training on “Basic Do’s and Don’ts” (R. Exh. 133). This training
instructs employees that they must report all work–related

12 La Serna, Quintanilla, Lopez, and Prieto acknowledged receipt of
the handbook and safety manual in either May or June 2011 (Jt. Exh. 6,
9, 11, 14). In addition, Prieto acknowledged the safety program rules
and standards which also outlined the disciplinary steps for any infrac-
tions (R. Exh. 78(a) and (b)).
incidents and injuries to a supervisor immediately; Quintanilla
signed a written acknowledgement that she attended this training
on March 19 (R. Exh. 133).
V. THE UNION
The Union represents custodians, GMP techs and leads em-
ployed by SBM (Tr. 41, 952). SBM and the Union were parties
to a collective-bargaining agreement (CBA), effective May 1,
2012, through April 30, 2016 (Jt. Exh 1, 2(a) and (b)).13 Union
representatives, as used in this matter, refer to the president, or-
ganizers, or vice presidents who are employees of SEIU-USWW
(Jt. Exh. 24). Shop stewards are employees of Respondent who
hold elected positions (Jt. Exh. 24).
In 2015, for the Union, Denise Solis (Solis) served as vice
president; David Huertas (Huertas) served as president; David
Cota (Cota) and Pedro Malave (Malave) served as coordinators;
Cesar Diaz (Diaz), Yvonne Pasaran (Pasaran), and Monica
Rueda (Rueda) served as organizers; and Alejandra Arostegui
(Arostegui) served as lead organizer (Jt. Exh. 24).
As for the shop stewards in 2015, La Serna served as shop
steward since 2006 (Tr. 41, 230). Prieto served as shop steward
since 2011 (Tr. 365). The other shop stewards in 2015 were Ed-
uardo Fernandez (Fernandez), Luz Betty Ruiz Outten (Ruiz), and
Luis Loli (Tr. 49). Quintanilla ran for shop steward in 2015, was
on the March 26 ballot, and was elected. Lopez never served as
a shop steward but was a union supporter. Shop stewards repre-
sent employees in their individual complaints against Respond-
ent, represent employees during disciplinary actions, and attend
labor-management meetings (Tr. 41–42, 46, 230, 366–367, 828–
829).14 In late 2014 to 2015, Kahn, Periolat, and Emperador at-
tended labor-management meetings along with La Serna, Prieto,
Quintanilla, and other union representatives including Diaz (Tr.
42–44, 368). At other times, Trinidad attended these labor-man-
agement meetings (Tr. 44, 1193–1194).
VI. THE SHOP STEWARDS’ COMPLAINTS
Due to an increase in disciplinary actions issued to employees,
shop stewards La Serna, Fernandez, Prieto, and Ruiz sent a letter
via email and regular mail on January 5 to union President Huer-
tas (GC Exh. 48(a) and (b); Tr. 48, 288). The letter detailed the
problems the employees were having with Respondent and how
the union representatives failed to defend their rights (Tr. 59; GC
Exh. 48(a) and (b)). The shop stewards received no response
from Huertas. La Serna and another shop steward, thereafter,
created a flyer requesting that employees meet together on Janu-
ary 15 (GC Exh. 46(a) and (b)). The flyer announcing the meet-
ing stated, in part:
STOP THE UNJUSTIFIED DISCHARGE OF
GENENTECH JANITORS: ROXANA CORDOVA,
ESTHER RODRIGUEZ, EDA BLANCO, ELDA CORTEZ,
MARLON ALEMAN AND DARLENE BRENES.
13 Art. XVII of the CBA covers grievances and arbitrations.
14 Several of the witnesses testified to serving as delegates for the
Union. The term delegate refers to shop steward per the parties’ stipula-
tion (Jt. Exh. 24).
SBM SITE SERVICES, LLC 11
STOP THE UNDUE WITHDRAWAL OF PAID
VACATION, THE CONTRACT OBLIGATES THE
CONTRACTORS FROM CANCELLING PAID
VACATION EACH YEAR;
STOP THE LABOR HARASSMENT AGAINST
JANITORS;
NO TO THE OPPRESION [sic] AGAINST UNION SHOP
STEWARDS;
(GC Exh. 46(a) and (b)). This flyer did not identify the author
or sponsors of the meeting, but the record demonstrates that La
Serna and Prieto were active shop stewards.
In response, Respondent posted a letter to employees to rebut
the announcement of a January 2015 meeting (GC Exh. 47(a)
and (b)).15 Copies of Respondent’s letter was posted in entry-
ways, in announcement bulletin boards, and stacked next to the
time clocks (Tr. 50–52).
On January 15, the announced meeting took place, attended
by the shop stewards (Tr. 67). No paid union representatives
attended the meeting (Tr. 67).
VII. RESPONDENT’S MARCH 30 SUSPENSION AND APRIL 23
TERMINATION OF LA SERNA
A. Background Prior to La Serna’s Suspension
Since 2000, La Serna worked as a custodian and GMP tech
for various contractors at Genentech’s South San Francisco fa-
cility (Tr. 39, 229; R. Exh. 7(a) and (b)). He worked Monday
through Friday from 6 p.m. to 2:30 a.m., and reported to Men-
doza (Tr. 40). La Serna also served as an active and vocal shop
steward for many years.
Thereafter, on February 20, Trinidad along with Brodie and
Sanchez approached La Serna in his work area at 1:30 a.m. (Tr.
79). La Serna testified that Trinidad accused him of spreading a
rumor that Respondent lost its contract with Genentech (Tr. 79).
La Serna denied Trinidad’s accusations. La Serna, in turn, ac-
cused Trinidad of talking to employees about not re-electing La
Serna as shop steward (Tr. 79–80). Trinidad then shifted topics
and told La Serna that he had been tardy many days, which La
Serna admitted (Tr. 80). The meeting ended after 30 minutes.16
On February 23, La Serna sent an email to Arostegui (GC Exh.
40(a) and (b)). La Serna’s purpose in sending this email to Aro-
stegui was to make him aware that Trinidad was harassing him
on January 30 and February 20, as well as the general discipline
of employees. In this email, La Serna wrote, “she threatened me
saying that she ‘was going to finish this little game’” (GC Exh.
40(a) and (b)).17 Thus, on February 24, Solis, Arostegui, Diaz,
La Serna, and the other shop stewards met at a restaurant (Tr.
88). They discussed the workplace problems, and Arostegui in-
formed the meeting attendees that the Union would file a

15 The term assembly refers to meeting (Jt. Exh. 24).
16 Trinidad and Brodie did not confirm or deny this encounter with
La Serna as they were not questioned about this event. Thus, I rely upon
La Serna’s unrebutted account of the February 20 meeting.
grievance against Trinidad and collect employee signatures re-
questing her dismissal (Tr. 88–89).
On February 25, Trinidad and Mendoza gave La Serna a re-
quest for disciplinary action for alleged tardiness 30 times in 3
months (GC Exh. 30). La Serna admitted to arriving late on
some occasions but did not agree with all the dates listed in the
request for disciplinary action (Tr. 310–311). Ultimately, Re-
spondent did not discipline La Serna for this alleged tardiness
(Tr. 312).
On February 26, Brodie sent Kahn an email regarding infor-
mation he had gathered about the Union (GC Exh. 205; Tr.
1149). Brodie informed Kahn that Prieto, La Serna, and Fernan-
dez decided to grieve two matters, including asking Respondent
to remove Mendoza and Trinidad from the South San Francisco
facility (GC Exh. 205). In addition, Brodie informed Kahn that
the election would be held soon and that by March 11, the iden-
tity of candidates would be known (which he would share with
Kahn) (GC Exh. 205).
On February 27, Diaz sent an email to La Serna stating that
Respondent wanted the Union to drop the grievance against Trin-
idad and that he needed witness statements within the next few
days (GC Exh. 40(a) and (b)). According to La Serna, the sig-
natures were never collected because Diaz failed to create a sig-
nature list with the Union’s letterhead and logo (Tr. 89–90).
Thereafter, the shop stewards planned an employee meeting
for March 24 at 3 and 5 p.m. in the parking lot of the South San
Francisco facility.18 To promote the meeting, La Serna created
a flyer which stated:
STOP THE NON–COMPLIANCE OF THE CONTRACT
BETWEEN THE UNION AND CONTRACTORS!!!!
STOP THE UNJUSTIFIED DISCHARGES OF
GENENTECH JANITORS !!!!!
LET’S BE INFORMED AND DISCUSS IMPORTANT
ISSUES !!!!!
YOUR PRESENCE IN THIS ASSEMBLY IS IMPORTANT
!!!!
(GC Exh. 49(a) and (b)). Employees, including Lopez, and shop
stewards distributed the flyer (Tr. 93–94, 510–511). One day
prior to the meeting, La Serna, Fernandez, Prieto, and Ruiz sent
an email to Solis informing her that they planned to have an em-
ployee meeting the next day; they also informed her of their rea-
sons for having the meeting (GC Exh. 53(a) and (b)). Solis did
not respond to the email (Tr. 94).
On March 24, La Serna, Prieto, other shop stewards and many
employees, including Lopez, participated in these two scheduled
17 Trinidad was never questioned about this alleged statement. As it
was unrebutted, I accept La Serna’s testimony that Trinidad made this
comment.
18 By 3 p.m., the day shift employees would be off duty as many of
their shifts ended at 2 p.m. (Tr. 308). The night shift employees could
attend the 5 p.m. meeting prior to the start of their shift. (Tr. 94–95).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meetings (Tr. 95, 97, 511–512, 830).19 Leads Beatriz (Betty) Al-
cantara (Alcantara), Elizabeth Barrientos (Barrientos), and Lucia
Hernandez (Hernandez) also attended (Tr. 98, 340, 632). Both
meetings followed the same agenda. The shop stewards dis-
cussed the “serious things that were happening” at Respondent’s
facility, including the discipline and termination of employees
and the grievance against Trinidad (Tr. 95). The shop stewards
then decided to file a “petition” with Genentech (Tr. 95–96, 530).
No paid union representatives attended either meeting (Tr. 99).
In addition, during one of these meetings, employees com-
plained about the “attitude” of the leads and that the leads were
“misinforming” Respondent about the employees and telling
“lies” (Tr. 342–343, 832–833). La Serna generally stated that
the leads should not mislead management about the employees
they led as they were “asking that the Company carry out more
discipline” (Tr. 106–107, 515, 529–530, 830). Lopez also spoke
during the second meeting, stating that she was tired of asking
Respondent to provide education to its employees to ensure that
they knew how to perform their jobs while avoiding making mis-
takes (Tr. 515–516, 526, 529, 832). Lopez also stated that the
leads give the employees the tools and resources to carry out
their tasks but did not have the authority to discipline anyone (Tr.
527). La Serna testified that Lopez referred to the leads, some
of whom were allegedly supporting Respondent’s discipline of
employees, but did not name them (Tr. 109). After the meeting,
Hernandez and Barrientos spoke privately with La Serna about
the meeting and the accusations made against them (Tr. 109–
110).20
B. La Serna’s Representation of Quintanilla on March 26
On March 26, La Serna represented Quintanilla, who was a
custodian, in a potential disciplinary action regarding an injury
incident on March 5 (Tr. 123, 929). While on duty on March 5,
Quintanilla was injured. Respondent’s Manager Hawes, on
March 5, at 4:12 p.m., sent an email to management regarding
Quintanilla’s reported injuries that day (R. Exh. 101). Hawes’
email states, “When asked why she did not report this incident
when it occurred [at approximately 11:30 a.m., that morning],
she [Quintanilla] states that she called her [first line] supervisor
[Silva] at the time of injury. Supervisor states she did not call
nor does her phone have any missed calls. Site will investigate
proper disciplinary actions for late reporting” (R. Exh. 101).
Kahn thereafter wanted to verify whether Quintanilla attempted
to contact Silva, and asked Silva to check her cell phone call rec-
ord and to check her office phone (Tr. 931). Silva reported no
calls missed (Tr. 931–932). According to Kahn, he learned from

19 Prieto only attended the 3 p.m. meeting, while La Serna and Lopez
attended both meetings (Tr. 97, 830). The record does not establish
whether Quintanilla attended the March 24 meetings.
20 For Respondent’s investigation of La Serna and Lopez, Hernandez
and Barrientos submitted individual statements (GC Exh. 208, 209).
Hernandez submitted a statement where she essentially complained that
La Serna spoke badly about Respondent and Trinidad during this meet-
ing, and Lopez identified her as a lead that “traps” people (GC Exh. 208).
Hernandez wrote that after the meeting she spoke to La Serna about these
statements during the meeting (GC Exh. 208). In an undated statement,
Barrientos wrote primarily about Lopez who she claimed would laugh
and tease her because she received recognition from Respondent. She
again wrote about Lopez’ “defamation” of her to all the employees at
Silva that Quintanilla had been injured mid-day but had not re-
ported her injury until the end of the day (Tr. 930).21 On March
10, Kahn then proceeded with a request for a warning for viola-
tion of the employee handbook, safety rules, page 54, as Quinta-
nilla did not report her workplace injury on time: the injury oc-
curred at 11 a.m. and she reported it at 3 p.m. (Tr. 128, 932–933;
R. Exh. 102). On March 11, Cazarez investigated Quintanilla’s
injury by questioning her.
Thereafter, on March 26, Quintanilla asked La Serna to repre-
sent her because she received a warning from Respondent, and
she wanted to meet with management (Tr. 128; GC Exh. 4a and
4b). The meeting took place at 11 a.m., in Genentech’s building
54 conference room (Tr. 128). Kahn represented Respondent
(Tr. 128). During this meeting, Quintanilla spoke first, stating
that the discipline given to her had been unfair (Tr. 128, 934).
Quintanilla explained she had made a phone call to report her
injury the day it took place, claiming that her injury occurred on
March 6, and she showed her March 6 phone log to Kahn (Tr.
129, 271–272, 934). Kahn pressed Quintanilla to make sure that
she was firm on her date because his documentation showed
March 5 (Tr. 934, 1094, 1253). Again, Quintanilla disagreed,
stating that her injury occurred on March 6 (Tr. 934–935, 1094–
1095). Kahn asked for a copy of Quintanilla’s phone log and a
written record of her version of events (Tr. 935; R. Exh. 105,
106). Kahn then called Silva and asked her for Quintanilla’s
workplace injury documentation (Tr. 129–130). Silva then came
to the meeting but told Kahn she did not have the documentation
(Tr. 130). Kahn said he would review the matter and give Quin-
tanilla a response that afternoon (Tr. 130). The meeting ended.
Based upon his preliminary review of evidence, Kahn be-
lieved that Quintanilla intentionally tried to falsify the timing of
her injury to avoid receiving discipline, so he asked for a review
by human resources (Tr. 942). Meanwhile, Trinidad spoke to
Periolat to obtain advice regarding Quintanilla, and Periolat rec-
ommended that Trinidad interview and obtain a statement from
Quintanilla (Tr. 1247–1248). Periolat told Trinidad to suspend
Quintanilla and investigate the matter further after Quintanilla
insisted that Respondent had the wrong date of her injury (Tr.
1249–1250). Periolat only learned of Quintanilla’s identity after
she was suspended (Tr. 1248, 1250).
The second meeting regarding Quintanilla occurred around 4
p.m. Around that time, La Serna returned to building 54 at the
South San Francisco facility (Tr. 130–131). He came in earlier
than his shift time because the Union was conducting elections
from 1 to 6 p.m., for shop stewards (Tr. 130–131, 373).22 While
these meetings. Neither Hernandez nor Barrientos testified at the hear-
ing. Despite the General Counsel’s urging (GC Br. at 92, fn. 93), I de-
cline to take an adverse inference because Respondent did not call Bar-
rientos and Hernandez to testify. The salient fact here is not whether
their allegations were credible but that they complained about La Serna’s
conduct at these meetings which resulted, in part, in his suspension.
21 On March 6 at 8 a.m., Silva entered the injury into Respondent’s
designated database (R. Exh. 107).
22 The Union announced the election to employees in the days prior
by handing out flyers, and placing announcements at the time clocks and
on bulletin boards (Tr. 131–132). The names of the 10 employees run-
ning for shop steward were listed on the flyers including Fernandez,
Prieto, Ruiz, Quintanilla, Giovana Loli, Louis Loli, and La Serna (Tr.
SBM SITE SERVICES, LLC 13
in the conference room where the elections were being held, Diaz
asked La Serna and Prieto to represent Quintanilla in a meeting
scheduled by Trinidad (Tr. 130–131, 374).
La Serna and Prieto then went to the same conference room
where the morning meeting regarding Quintanilla was held (Tr.
136, 374, 1208). This conference room included an oval table
with seating for 8 (Tr. 143–144). This table took up much of the
space in the conference room (Tr. 143).23 Prieto testified that
Trinidad began the meeting by stating that Quintanilla would be
suspended due to falsification of documents, and requested her
badge (Tr. 136–137, 375; GC Exh. 5a and 5b).24 The suspension
notice stated, “Falsifying information about the security incident
pertaining to work that occurred on March 5, 2015,” and a final
disciplinary action would be determined after an investigation
and/or review of the employee’s disciplinary file (GC Exh. 5a
and 5b). Cazarez, who led Respondent’s security, spoke next,
reiterating Trinidad’s comments regarding the decision to sus-
pend Quintanilla (Tr. 375). In response, La Serna said that the
suspension was unfair, and that “it was an abuse that was being
done” (Tr. 375). La Serna’s comment made Trinidad upset and
she stated that La Serna was insulting her (Tr. 375). Trinidad
reiterated the decision to suspend Quintanilla, and Prieto told La
Serna to wait and he left the conference room to get Diaz (Tr.
375–376). Prieto told Diaz that he needed to go into the confer-
ence room because “the situation was getting really ugly” (Tr.
376). Prieto then stayed in the election conference room (Tr.
376). 25
After Diaz entered the meeting, he asked why Quintanilla was
being suspended, and Trinidad responded that Quintanilla was

132, 372–373). Quintanilla ran for and was elected Union shop steward.
Kahn could not recall if Quintanilla was running for shop steward when
she provided him with the call log and written statement (Tr. 948). How-
ever, on cross-examination, Kahn admitted that he knew who the stew-
ards were before the election, who was running for steward and who was
elected (Tr. 1086). I do not find Kahn to be credible on his knowledge
of who engaged in union activity. He had been told by Brodie on Feb-
ruary 26 that an election would be held soon, and that he would inform
Kahn of the names of the candidates. It is more likely than not that Bro-
die told Kahn before Quintanilla’s suspension that she was a candidate
for shop steward.
23 In its posthearing brief, Respondent included a diagram of the con-
ference room including table and chairs (R. Br. at 27). The General
Counsel filed a motion to strike the diagram because it was not admitted
into evidence and not an accurate depiction of the conference room (see
GC Motion to Strike). In response, Respondent argues that the motion
to strike should be denied as the diagram is permissible demonstrative
evidence (R. Reply to Motion to Strike). The General Counsel re-
sponded. I grant the General Counsel’s motion to strike as the diagram
was not marked at the trial with an opportunity for the parties to respond.
See Bearid–Poulan Division, Emerson Electric Co., 233 NLRB 736 fn.
1 (1977). Even if I were to deny the General Counsel’s motion to strike,
I give little weight to Respondent’s diagram in its brief, and instead rely
upon witness testimony as set forth in my findings of fact and credibility
determination.
24 Quintanilla’s suspension is not alleged as a violation of the Act (Jt.
Exh. 1, 10).
25 La Serna and Prieto provided differing versions of the start of this
critical meeting. For the time in which he was in attendance, I credit
Prieto’s testimony regarding this meeting. Prieto’s testimony of events
seemed more likely to have occurred than La Serna’s version of events.
being suspended because she had falsified information (Tr. 139,
273). Diaz then asked for further details, and Trinidad left the
conference room and returned with Quintanilla’s work injury re-
port (Tr. 139). Quintanilla reviewed the report and told Trinidad
that the report was filled out by Silva (Tr. 139). Trinidad replied
that she still intended to suspend Quintanilla (Tr. 140).
A dispute then ensued where La Serna, Trinidad, Cazarez, and
Diaz stood up from the conference table and spoke loudly at the
same time (Tr. 141–142).26 Only La Serna and Trinidad testified
at the hearing, and provided contrasting version of events.27
La Serna admitted that there were loud tones of voice (Tr. 274,
319). He testified that he told Trinidad that she was looking for
any reason to punish employees, and told her that she was look-
ing for employees to have her removed from the South San Fran-
cisco work site (Tr. 142, 147). Trinidad responded, “Well before
I leave, you will leave” (Tr. 142).28 According to La Serna, Diaz
then asked La Serna and Quintanilla to leave the meeting, and
remained in the room with Trinidad and Cazarez as they did (Tr.
146).
In contrast, Trinidad testified that, after she insisted that Quin-
tanilla turn in her badge, La Serna “slammed his hand on the ta-
ble and literally pushed his chair back hard enough where he—
it hit the wall. He stood up. As soon as he stood up, I stood up
immediately” (Tr. 1213). La Serna then started walking towards
her, yelling at her that he was going to get rid of her (Tr. 1214).
Trinidad responded with an expletive while she was in a corner
of the room (Tr. 1214). Then, according to Trinidad, Diaz came
between La Serna and her, and shoved La Serna out the door,
after which Trinidad started walking to the door and slammed
La Serna testified that Trinidad refused to provide a reason for suspend-
ing Quintanilla, and that Cazarez did not initially attend the start of the
meeting (Tr. 137–138). Unlike La Serna, Prieto testified that Trinidad
immediately told Quintanilla why she was being suspended, and that
Cazarez attended the meeting from its beginning. I find it unlikely that
Trinidad would not immediately inform Quintanilla for the reason why
she was terminated. Earlier in the day Kahn informed Quintanilla he
would be making a decision and it makes little sense to hide the reason
from her at the start of the meeting. Therefore, I rely on Prieto’s version
of the meeting while he was in attendance.
26 Trinidad and Cazarez sat on one side of the conference room table
and La Serna and Quintanilla sat on the opposite side of the table (Tr.
146). When Diaz entered the meeting, he sat at the head of the table with
La Serna to his right and Trinidad to his left (Tr. 146).
27 Perez, Cazarez, and Diaz provided statements to Respondent during
its investigation of La Serna’s conduct. I specifically give little weight
to these statements. None of these individuals testified at the hearing.
The General Counsel subpoenaed Diaz but he did not appear at the hear-
ing (GC Exh. 407). The General Counsel chose not to enforce the sub-
poena (Tr. 1317–1318). Perez and Cazarez no longer work for Respond-
ent, and are not within their control (Tr. 735). Thus, the three statements
are not dispositive to my credibility determination and only provided to
demonstrate Respondent’s investigatory process. In addition, Respond-
ent’s request for an adverse inference regarding any factual question
which arose during this March 26 meeting as Diaz did not testify is de-
nied (R. Br. at 81, fn. 27). Again, I give little weight to Diaz’ statement
since he did not testify, and rely solely on my credibility resolution be-
tween La Serna and Trinidad.
28 La Serna documented this meeting per Diaz’ request on April 15
(R. Exh. 13(a) and (b)). La Serna’s April 15 statement is essentially con-
sistent with his testimony at the hearing.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the door to put some space between La Serna and her (Tr. 1214–
1215).29
Later that evening at 10:30 p.m., Trinidad met with La Serna
again in the conference room of building 54 (Tr. 150, 677). This
time La Serna was called to represent Lucina Vargas (Vargas)
(Tr. 150). Trinidad sought to discipline Vargas with a warning
for allegedly parking in a handicapped spot (Tr. 150). La Serna
agreed that Vargas should be disciplined but argued for a verbal
warning instead (Tr. 151). Trinidad stated that she would con-
sider the suggestion (Tr. 151). This meeting lasted 15 to 20
minutes (Tr. 151).30
I credit the testimony of La Serna over the testimony of Trin-
idad as to the Quintanilla discipline meeting. First, based on the
layout of the conference room, I do not find it likely that La Serna
had the physical space to push back from his chair, and walk to-
wards Trinidad. However, I do believe that La Serna told Trini-
dad that he was going to get rid of her. The shop stewards for
some time had been dissatisfied with Trinidad’s conduct towards
the employees and filed a grievance requesting her removal. Cir-
cumstantial evidence supports a conclusion that Trinidad learned
about this grievance from Brodie or Kahn. This meeting became
contentious almost immediately. Trinidad clearly became of-
fended by La Serna’s “aggressive” defense of Quintanilla, which
Trinidad and Cazarez found to be “offensive.” I find that Trini-
dad testified in a hyperbolic manner, embellishing the concern
for her physical safety, as her actions after this meeting certainly
does not demonstrate that she was concerned for her wellbeing.
She did not call for security to remove La Serna from the South
San Francisco facility, and in fact, met with him that very night
to discuss another disciplinary. Thus, I credit La Serna’s version
of events rather than Trinidad’s version.
C. La Serna’s March 30 Suspension
Periolat testified that she began looking into investigating La
Serna in March 2015 when she received a statement from female
coworkers about La Serna’s conduct (Tr. 1286–1287). During
this time, Trinidad contacted Periolat upset about what she per-
ceived as a “verbal altercation” with La Serna where she felt
“threatened” on March 26 (Tr. 1286–1287). Trinidad provided
her statement to Periolat (R. Exh. 11). Based upon the statement,
Periolat recommended suspension due to La Serna’s alleged har-
assment of his “co-workers” Hernandez and Barrientos as well
as Trinidad (Tr. 1288; R. Exh. 2).
Therefore, on March 30, at 8 p.m., Brodie, Perez, Jedan, and
Castro met with La Serna and Prieto, as his representative, in the
building 54 conference room (Tr. 155–156, 1148). At the start
of the meeting, Brodie called Periolat who attended the meeting
telephonically (Tr. 156, 1148). Periolat told La Serna that Re-
spondent would be suspending him because he was insubordi-
nate and had intimidated Trinidad during the March 26 meeting
regarding Quintanilla’s suspension (Tr. 42, 156, 1288–1289).
Periolat also stated that there were some complaints from other
employees about La Serna (Tr. 158–159).
La Serna responded to the allegations stating that he had not

29 Trinidad documented this interaction a day later, admitting that La
Serna acted in his capacity as a shop steward, and provided her statement
to Periolat (R. Exh. 11). I reject Trinidad’s version of events as she dram-
atized and exaggerated La Serna’s conduct towards her.
been insubordinate or intimidating to Trinidad, and the “strong-
est words” he had used was that Trinidad was “being abusive”
(Tr. 157). Prieto also stated that he had been present during this
meeting but needed to leave the meeting so Diaz could be pre-
sent, and denied that La Serna acted in an insubordinate manner
or intimidated Trinidad (Tr. 157–158). Brodie provided La
Serna with a notice of suspension which stated:
Event of 3/26/15 in which Employee [La Serna] became ver-
bally abusive, hostile, aggressive and acted in an intimidating
and threatening manner, in violation of the following policies:
*Business Ethics & Conduct (page 15 Employee Handbook):
communicate respectfully with other employees, *Unaccepta-
ble Conduct (page 15–16 Employee Handbook) Insubordina-
tion, refusing to obey instructions, threatening, intimidating or
coercing fellow employees for any purpose, General Miscon-
duct Prohibited Harassment & Discrimination (page 17 Em-
ployee Handbook): verbal, physical or visual, includes any un-
welcome or offensive conduct that may be based on an em-
ployee’s protected charachteristic [sic], *Violence in the work-
place; SBM requires an environment free from intimidation
and threats.
In addition to the events of 3/26/15, SBM is in receipt of several
female employee statements complaining of harassing, intimi-
dating behavior LaSerna [sic] directed at them. These allega-
tions will be investigated concurrently with the events of the
26th in our due diligence to identify any connection.
(GC Exh. 2(a) and (b)). The notice also indicated that the final
disciplinary action would be determined upon the conclusion of
human resources’ investigation and/or review of La Serna’s dis-
ciplinary file (GC Exh. 2(a) and (b)). Respondent asked for La
Serna’s badge, which he provided to Brodie, and he left the
building (Tr. 158, 275–276, 1148).
The badge permits an employee to enter the buildings at the
South San Francisco facility. According to La Serna, the streets
surrounding the buildings are public (Tr. 276–278). La Serna’s
testimony was unrebutted. Brodie testified that at the suspension
meeting, La Serna was told that he should not be on the Genen-
tech property or campus (Tr. 1148, 1289). La Serna asked if he
could return onsite to represent an employee, but this request was
denied (Tr. 1148). He also asked if he could return onsite for a
meeting between Respondent and the Union about another mat-
ter but was similarly denied (Tr. 1148, 1289).
At the hearing, La Serna disavowed Respondent’s claim that
Brodie told him that he could not come back on the property (Tr.
279). The issue of permission to return to the South San Fran-
cisco campus is critical. Brodie and Castro testified consistently
that they informed La Serna he could not come back onto Genen-
tech’s property for any reason. Furthermore, Brodie and Cas-
tro’s contemporaneous notes reflect such instructions (R. Exh.
12; Tr. 1148). Moreover, the evidence shows that on at least two
occasions, after his suspension, La Serna requested permission
30 Trinidad again met with La Serna on March 30 concerning the sus-
pension of Oscar Otoye (Otoye) (Tr. 151). This meeting lasted more
than 30 minutes with La Serna providing alternate discipline suggestions
and thereafter went back to his work location (Tr. 153–154).
SBM SITE SERVICES, LLC 15
to return to the South San Francisco facility to attend meetings,
and his requests were granted. However, Respondent’s instruc-
tions were ambiguous at best. According to La Serna’s unrebut-
ted testimony, the streets surrounding the Genentech campus are
public. Thus, La Serna’s testimony is truthful in that Respondent
never informed La Serna that he could not return to the public
spaces surrounding the campus. But La Serna had an under-
standing that he needed to obtain permission from Respondent
before entering any of its buildings. Therefore, although I credit
Brodie and Castro’s testimony that they told La Serna he could
not come back on the campus or property, La Serna’s testimony
has also some truth in that he was not told he could not come
onto the public areas without permission. Based on these vary-
ing accounts, it is clear that Respondent failed to clarify its in-
structions to La Serna.
D. The Union files a grievance regarding La Serna’s
suspension
On April 1, La Serna sent an email to Diaz and Solis, along
with other unidentified recipients, regarding his suspension (GC
Exh. 32(a) and (b)). In this email, La Serna noted that Diaz was
present for the discussion in which he was accused of insubordi-
nation and intimidation. La Serna states, “The strongest word
that I remember staying to Mrs. Sonia Trinidad was that it was
what she was doing with the suspension of our delegate Esther
Quintanilla was an “abuse.” I believe you have a strong enough
argument to ask that the suspension be lifted immediately” (GC
Exh. 32(a) and (b)). La Serna wrote that his discipline is due to
his union activities, not for work-related issues. Finally, La
Serna requested Diaz to file a grievance on his behalf. Diaz filed
a grievance with Kahn regarding La Serna’s suspension on
March 30 (GC Exh. 50).
E. The April 16 March
On April 15, the shop stewards sent an email to Huerta com-
plaining about their problems with Respondent (GC Exh. 54(a)
and (b)). Specifically, the shop stewards complained that Re-
spondent had been disciplining and terminating employee-shop
stewards who supported the Union. The shop stewards also ex-
pressed frustration with the Union’s lack of support in filing
grievances and representing their interests before Respondent.
Thus, they decided to present a petition to Genentech the follow-
ing day to inform them of Respondent’s actions. Furthermore,
the shop stewards reported that Diaz “threatened” employees
who participated in the march. The email was signed by La
Serna, Fernandez, Prieto, Ruiz, Quintanilla, Ruby Olmos (Ol-
mos), and Martin Garcia (Garcia).31 Huerta never responded to
their email (Tr. 171).
The shop stewards decided to march at the South San Fran-
cisco facility on April 16, and present Genentech with a signed
petition expressing the employees’ concerns with Respondent.
In preparation for the march, the shop stewards created a flyer to
distribute to the employees (GC Exh. 33(a) and (b); Tr. 312–

31 Ruiz did not attend the march, but on April 15, she sent text mes-
sages to Diaz to communicate the employees’ desire to march. Diaz dis-
couraged the march, stating that Respondent would take action against
the employees (GC Exh. 301a and b). The Union thus appears complicit
314). The flyer was titled, “NO TO THE PERSECUTION OF
JANITORS FOR BEING UNION MEMBERS THURSDAY
APRIL 16, 2 PM MARCH FOR DIGNITY” [all caps in origi-
nal]. The body of the flyer states,
SBM has begin [sic] implementing a policy of persecution
against SBM-Genentech Janitors for their affiliation with the
union. SBM discharged in an unjust manner our co-workers of
the School B71–23: Marlon Aleman, Elda Cortes, Roxana
Cordova, Esther Cerrato, Eda Blanco. SBM discharged our c.
[co–workers] Darling Brenes of B3 and Emilia Juarez of B32
by creating false testimonies. SBM discharged our delegate
Esther Quintanilla for a ridiculous discrepancy about the date
of her injury, even though SBM never made an injury report as
the law requires. They suspended our delegate Jose La Serna
for a supposed shortcoming in his work of union representa-
tion, ignoring the labor laws that protect union leaders. And
they suspended our c. [co–workers] Luz Dary Duque, taking as
proof distorted representation of our Union Meeting, in which
SBM has no right to intervene. Likewise they threaten workers
who participate in Assemblies, Petitions, and any other action
of our Union. For SBM’s arrogance, the workers have a DAY
TO FIGHT AGAINST THE UNJUSTIFIED DISCHARGES
AND FOR THE DIGNITY OF THE JANITORS AND FOR
UNION FREEDOM AS PROTECTED BY LAW. ALL
WORKERS TO MARCH ON THURSDAY APRIL 16 AT 2
PM.
NO TO SBM’S ABUSE AGAINST THE JANITORS;
RESPECT FOR OUR UNION FREEDOM !!!!
(GC Exh. 33(a) and (b) (emphasis in original)).
Respondent became aware of the planned march on April 14
(GC Exh. 201). Emperador sent an email to Solis and other un-
ion representatives along with Periolat questioning the contents
of the flyer, stating “Lots of disinformation that is not productive
or helpful to the process and discussions we have had. This is
also calling for people to walk off their jobs on Thursday. Please
confirm whether or not this is a union sanctioned or endorsed
message and event” (GC Exh. 201). A union representative re-
sponded, “The Union is not supporting any demonstrations at
Genentech. Cesar [Diaz] and other Executive Board members
are calling and meeting with the stewards at Genentech to dis-
courage any potential demonstration. Our message to the stew-
ards is that any open cases/grievances we have with SBM should
be allowed to move through the grievance procedures estab-
lished in NCMCA” (GC Exh. 201). That same day, Jedan com-
municated that Respondent did not believe that there would be a
work stoppage, but instead akin to a gathering similar to the one
held a few weeks prior and coordinated by “one or two janitorial
staff” (GC Exh. 202).32 This email was shared between Empera-
dor, Periolat, and Trinidad (GC Exh. 202).
in tamping down protected concerted activity by the employees and shop
stewards.
32 A prior demonstration/gathering, which was not sanctioned by the
Union, was held on April 7 by a “newly elected shop steward” (GC Exh.
203). No witnesses testified about this event.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Later that evening, in response to the flyer, Trinidad placed a
letter from Respondent to the employees (GC Exh. 203). This
letter rebutted many of the statements in the union flyer. With
regard to the Quintanilla reference, the letter states, “Providing
false information and statements to SBM is a terminable offense.
SBM takes the well-being of our employees very seriously. At
the same time, we expect honesty from all our employees when
providing information in regards to an incident that might have
caused an injury. SBM follows all state and federal require-
ments” (GC Exh. 203). In response to the suspensions of La
Serna and Lopez, the letter states, “No manager, lead, shop stew-
ard or regular employee is above SBM policies or the CBA. We
all must act respectfully, not create a hostile work environment
or intimidate. Also, we should not start rumors or create false
stories against our co-workers” (GC Exh. 203).
The petition, created by the shop stewards, to be presented to
Genentech stated,
We, janitors of contractor SBM-Genentech signing this letter
are turning to you. To express our concern and discomfort be-
cause our employer SBM is doing illegal and abusive acts
against the janitors who work in your prestigious company.
Acts that are manifested in the following: SBM has applied dis-
ciplines to workers who become ill, breaking labor laws; SBM
is laying off workers creating lies and justifying them with re-
quests for claims managers Department Genentech, as in the
case of our fellow Darling Brenes (B3) and Emilia Juarez
(B31); SBM has applied disciplines and penalties for falsifying
workers motives and accumulating these disciplines and then
lay off workers; SBM is refusing to comply with the resolu-
tions of the Master Agreement between the contractors and the
Union, in the process of offenses against discipline, not attend-
ing and widening process indefinitely, thus denying the possi-
bility of protecting workers against the disciplines, SBM is
complying with vacation pay to workers who have earned the
right under the Contract between the Contractor and the Union.
For these reasons Sr. Manager of Facility Genentech, we turn
your attention to become aware of our protests SBM and asked
for their mediation with SBM to change this negative situation
janitors.
(GC Exh. 34: Tr. 320, 369). La Serna, Prieto, and Lopez signed
this petition along with many other employees (Tr. 370–371,
399).33
On April 16, employees gathered for the march at 2 p.m.34 No
employees were asked to stop their work or strike. Approxi-
mately 80 to 90 employees and shop stewards met in the public

33 Quintanilla does not appear to have signed the petition, but by this
time, Quintanilla had been terminated by Respondent (GC Exh. 34).
34 Prior to the march, Emperador sent an email to Cota and Solis,
along with Periolat and Jedan stating that he learned that the march
would still occur that day, and wanted to know what the Union would do
to prevent the march as it could violate labor peace agreements (GC Exh.
404).
35 Art. VI, no strike/lockout from the CBA states, “For the duration
of this Agreement, the Union, its agents, and its members agree, both
parking lot in front of building 5 (Tr. 173, 351, 378–379, 574,
692–693; GC Exh. 55 (parking lot marked with an “X”)). The
shop stewards present were Prieto, Fernandez, Quintanilla, and
La Serna (Tr. 173, 379, 574, 693, 847). Diaz and Imar Liborio
(Liborio), who is a member of the Union executive board, at-
tended the march as well (Tr. 174, 574–575). Prior to the start
of the march, Diaz spoke to the employees and told them they
should not have a march, that they should continue their discus-
sion with Respondent, and that they could lose their letter of un-
derstanding with Genentech (Tr. 174–176, 314–315, 575, 692,
700).35 Liborio also echoed Diaz’ comments, and stated that
they should have their discussion instead within the Union as
some of the issues raised in the petition were being grieved (Tr.
175, 316, 379–380). La Serna spoke on behalf of the shop stew-
ards telling the employees that they should march quietly (Tr.
381, 693). The employees were asked to vote by a showing of
hands whether the march should take place (Tr. 175–176, 351,
381–382). About 30 to 45 employees voted to continue with the
march (Tr. 177, 236, 351–352, 693). Diaz and Liborio did not
march (Tr. 179).
At approximately 3 pm., the employees then walked silently
on the sidewalk towards building 31 (Tr. 177–179, 186, 694; GC
Exh. 55 (drawn black line along walking route from parking lot
at building 5 to building 31)). The employees did not hold up
signs or yell during the march, which took 10 to 15 minutes (Tr.
694). Once they reached building 31, Prieto and Fernandez ap-
proached Genentech’s security guards, asking to speak to a
Genentech representative (Tr. 180, 382). Prieto testified that 15
to 20 employees and shop stewards entered Genentech’s build-
ing (Tr. 381). They were then asked to wait outside due to the
small size of the space (Tr. 382). Thus, Prieto, Fernandez, and
Lopez’ daughter (who functioned as a translator) waited in the
lobby while the remaining marchers, including La Serna, waited
outside the building (Tr. 181, 383).
The marchers learned that the Genentech representatives were
in building 32, so they walked to building 32 (which is next to
building 31) (Tr. 181). Fernandez, Prieto, and Lopez’ daughter
went into building 32 to speak with the Genentech representa-
tives while everyone else including La Serna remained outside
the building (Tr. 172, 181, 321, 694). Prieto testified that they
handed the Genentech representative the signed petition, and
they were all asked to step outside the building with the repre-
sentative (Tr. 183, 378, 383). Outside the building, Prieto told
the Genentech representative that they were happy working at
the South San Francisco facility, but that they were having trou-
ble with SBM and wished for Genentech to contact Respondent
to try to resolve some of the problems (Tr. 384). Lopez’ daugh-
ter also spoke, and translated the employees’ comments (Tr.
384). The Genentech employee stated that he would speak to
individually and collectively, that they shall not authorize, cause, sanc-
tion, aid, engage in or assist in any strike, boycott, slowdown of opera-
tions, or stoppage of work for any reason, including honoring an unsanc-
tioned picket line of another union, that has not been properly sanctioned
by the appropriate Central Labor Council nor shall they attempt to pre-
vent access to any person to any job site.” The side letter of understand-
ing includes premium terms and conditions of employment.
SBM SITE SERVICES, LLC 17
Respondent as soon as possible (Tr. 384). The meeting lasted
less than 15 to 20 minutes (Tr. 384). Thereafter, the employees
left the South San Francisco facility (Tr. 183, 385). Kahn admit-
ted that he saw La Serna, Prieto, and Quintanilla at this march
but Kahn did not inform La Serna that he could not be located on
the sidewalks and public parking lot adjacent to the South San
Francisco campus (R. Exh. 2; Tr. 1094).36
F. La Serna’s April 23 Termination
After La Serna’s suspension, Periolat conducted an investiga-
tion of the allegations made against La Serna. She determined
that La Serna had returned to the South San Francisco facility
after his suspension, despite being informed by Respondent that
he could not return to the property; Respondent obtained several
statements from Kahn and employees, who stated generally that
they observed La Serna on the property since his suspension (R.
Exh. 2). She also determined that La Serna’s conduct toward
Trinidad during Quintanilla’s suspension meeting was “clearly
egregious and in violation of SBM’s conduct policy” where she
found that La Serna had threatened Trinidad with job loss and
intimidated her physically (R. Exh. 2). Periolat also determined
that La Serna had “abuse[d] his position” as shop steward and
engaged in malicious gossip because four witnesses felt that La
Serna attempted to intimidate and coerce them (R. Exh. 2). Pe-
riolat noted that La Serna’s violation of the directive not to enter
Genentech property during his suspension would be sufficient
for termination (R. Exh. 2).37 She noted that his conduct towards
Trinidad was sufficient for termination as well (R. Exh. 2).
Regarding the allegation that La Serna “abuse[d]” his shop
steward position, two leads provided written statements claiming
that they feel intimidated by La Serna because he disparages Re-
spondent and Trinidad, threatens Trinidad’s job, and threatens
employees’ position in the union (R. Exh. 2). Regarding the al-
legation that La Serna acted “egregious[ly]” towards Trinidad on
March 26, Trinidad claimed that La Serna has made her the vic-
tim of unprofessional and disparaging remarks, trying to remove
her from her job, and a victim during Quintanilla’s suspension
meeting (R. Exh. 2).
Thereafter, on April 21, La Serna and Pasaran met with Peri-
olat at a hotel in South San Francisco to discuss La Serna’s sus-
pension (Tr. 187). During this investigatory meeting, Periolat,
who documented this meeting, interviewed La Serna as part of
Respondent’s investigation about his suspension (Tr. 187–189,
791; GC Exh. 206). La Serna denied pointing his finger at Trin-
idad during the March 26 meeting but admitted he raised his
voice (GC Exh. 206). Periolat also asked La Serna about his

36 Curiously, the presence of Quintanilla (who had also been termi-
nated), does not appear to have created a problem for Respondent.
37 Although her investigation includes comments about a video sur-
veillance of the April 16 march, at the hearing, she testified she never
received the video from Genentech but that the march was “visually con-
firmed” (Tr. 1297–1298).
38 Again, these instructions to La Serna were quite vague. Obviously,
without his badge, La Serna could not enter the buildings but the instruc-
tions not to come onto the property are vague in that they do not define
which areas he could and could not access. In addition, since his suspen-
sion, La Serna was permitted to enter Respondent’s buildings with per-
mission. Furthermore, in contrast, Alcantara reported that she saw Lopez
“driving around building 43 and 48” the day she was suspended, and
presence at the South San Francisco facility after his suspension
(Tr. 190–191). La Serna noted that on two occasions he received
permission to return to the South San Francisco facility, into the
buildings, to collect his pay check from Brodie and to attend an
April 7 labor-management meeting (Tr. 190–191). La Serna ex-
plained that he went to the facility on April 16 for the march (Tr.
191). Periolat told La Serna that he was not permitted to go to
the South San Francisco facility (Tr. 191). La Serna responded
that this was the first time he was told he could not return to the
South San Francisco facility (Tr. 192).38
On April 22, Periolat requested approval from Emperador to
terminate La Serna for creating a hostile work environment for
Trinidad, and for insubordination by returning to the South San
Francisco facility despite being directed not to do so (R. Exh. 2).
Emperador wrote, “approved” (R. Exh. 2).39 However, at the
hearing, Periolat testified that she was the decision maker and
determined that La Serna should be terminated for “providing
false information during an investigation and unauthorized ac-
cess to a client site” (Tr. 815, 1292).
On April 23, La Serna attended a telephone conference call
with Periolat, Kahn, Castro, Mutt (who acted as translator), and
Pasaran, who acted as his representative (Tr. 193).40 Periolat in-
formed La Serna that she made the decision to terminate him for
insubordination and intimidation towards Trinidad and for going
on Genentech’s property without authorization (Tr. 193–194,
815). Respondent sent La Serna a termination letter via mail (Tr.
194). The termination letter states that La Serna was involuntar-
ily terminated on April 23 for “Ch.2 EHB pg.14–15/Insubordi-
nation–returning to the client site after suspension after directed
not to re–enter site. (2) CH.2 EHB pg. 16 Misconduct–Insubor-
dination involving Sonia Trinidad” (GC Exh. 35).41
G. The Union files a grievance regarding La Serna’s
termination
On April 27, Pasaran filed a grievance regarding La Serna’s
termination, stating that he was terminated without cause (GC
Exh. 51). On May 12, Pasaran and La Serna attended a meeting
to discuss the grievance with Kahn and Periolat (Tr. 196–197).
Pasaran requested that Respondent reduce La Serna’s discharge
to a less severe form of discipline, and Periolat stated that she
would let the Union know her response at a later time (Tr. 205).
Thereafter, on June 17, three officials from the Union (includ-
ing Pasaran) met with Periolat and Kahn in the presence of a me-
diator (Tr. 206). Per the parties’ collective-bargaining agree-
ment, Pasaran brought these two other union officials as her pan-
elist, and Periolat stated she would only have Kahn (Tr. 208).
immediately reported her observation to her supervisor (GC Exh. 206).
Lopez was not disciplined for driving around the campus after her sus-
pension.
39 Emperador did not testify at the hearing.
40 Castro also took notes during this meeting, and emailed them to
Periolat after the meeting (R. Exh. 23). These notes are consistent with
the other witnesses’ accounts of the meeting.
41 Respondent’s position statement to the General Counsel uses
slightly different terminology and chapter references than found in La
Serna’s termination notice (GC Exh. 405). I do not rely on Respondent’s
position statement as it is not probative in this instance. Rather, I rely on
the termination documentation and Periolat’s testimony.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The mediator indicated that the mediation could not continue in
such a manner, and that the matter would need to go to arbitration
(Tr. 208).42
On November 11 and 14, after not hearing from Union repre-
sentatives, La Serna sent an email and letter to Solis asking her
the status of his grievance and to include “union reasons” in the
grievance (GC Exh. 56(a) and (b)). La Serna received no re-
sponse from Solis (Tr. 212). La Serna spoke to Pasaran several
times, and she stated that his arbitration was not scheduled yet
(Tr. 212). On January 15, 2016, based on its failure to prosecute
his grievance, La Serna filed an unfair labor practice charge
against the Union (Tr. 213). On August 15, 2016, he sent another
letter to Solis (Tr. 213). On August 20, 2016, La Serna met with
Union representative Pedro Malabet (Malabet). Based on La
Serna’s unfair labor practice charge, the Union agreed to arbi-
trate La Serna’s termination but the date for the arbitration could
not be confirmed at that time (Tr. 215–216).
VIII. RESPONDENT’S APRIL 9 TERMINATION OF QUINTANILLA
After suspending Quintanilla on March 26, Periolat investi-
gated her alleged falsification (Tr. 792, 1250). Periolat obtained
statements from various individuals including Cazarez, dated
March 27 (Jt. Exh. 23). Cazarez interviewed Quintanilla on
March 11 when Quintanilla again denied that the injury occurred
on March 5 (Jt. Exh. 23). On April 7, the same day as the labor-
management meeting, Silva and another manager also submit
statements to Respondent regarding Quintanilla’s workplace in-
jury. Finally, Kahn also received a statement, dated April 8,
from employee, Jacob Kuruvilla (Kuruvilla), who witnessed
Quintanilla’s injury (Tr. 942, 1011; R. Exh. 113). Periolat re-
viewed relevant policy, handbooks, confirmation of acknowl-
edgment, and receipt of handbooks, emails with time stamps, the
accident package, previous disciplinary actions, Quintanilla’s
prior incident reports, and statements from Quintanilla, Cazarez,
and other employees (Tr. 1251–1252; GC Exh. 403). Periolat
compiled her findings in an investigatory summary, in which she
concluded, “All evidence is that the EE [Quintanilla] provided
false and misleading statements related to a workplace injury.
Recommendation of termination” (R. Exh. 91; Tr. 1253–1254).
Progressive discipline, she stated, would not apply due to the
“seriousness and egregiousness of the actions” as Quintanilla
“lied” despite given chances to correct her lie (Tr. 1255). Peri-
olat testified that there were no comparable disciplinary actions
(Tr. 1258).
On April 8, Periolat sent her investigatory summary to Trini-
dad, Kahn, and Emperador (R. Exh. 91).43 Kahn agreed with
Periolat to terminate Quintanilla as she had falsified documenta-
tion, lied to management, and violated the zero tolerance policy
(Tr. 946, 1085, 1254). Kahn testified that Quintanilla’s

42 Pasaran requested that the mediator hear from both parties, and then
give her opinion as to La Serna’s termination, which he provided (Tr.
208–209).
43 The day prior, on April 7, Respondent and the Union met at the
South San Francisco facility’s building 54 as the Union wanted to review
the various disciplinary actions taken by Respondent as well as to discuss
other matters affecting employees (Tr. 161, 168–169, 571, 841). Present
on behalf of Respondent was Periolat, Emperador, and Kahn (Tr. 161,
841). Present on behalf of the Union were representatives Solis, Diaz,
falsification removed her discipline from progressive discipline
(Tr. 947).
Thereafter, on April 9, Respondent discharged Quintanilla
(GC Exh. 6; Tr. 377–378). Prieto, La Serna, and Olmos repre-
sented Quintanilla during the termination meeting, which was
also attended by Trinidad and Periolat (Tr. 376–377). Trinidad
informed Quintanilla and her representatives that, after the in-
vestigation completed, Respondent decided to terminate Quinta-
nilla (Tr. 377–378). Periolat was the decision maker (Tr. 815).
The termination notice stated, “Employee [Quintanilla] provided
false and misleading information related to a workplace injury”
(GC Exh. 6).
After her removal, on August 26, 2016, Quintanilla filed a
complaint in state court against Respondent alleging discrimina-
tion, retaliation, wrongful termination, and unfair competition
(Jt. Exh. 20). On October 13, 2016, Respondent deposed Quin-
tanilla under oath in her lawsuit (R. Exh. 125). In her deposition
testimony, Quintanilla stated, “I supposedly had an accident on
March 5, and I got confused. I don’t know what went through
my head, and I got confused. I thought it was on the 6th that it
happened” (R. Exh. 125). Quintanilla also admitted that she told
La Serna about her confusion of the date a few days before the
October 13, 2016 deposition (R. Exh. 125). She also admitted
that when her injury occurred she told La Serna that she was con-
fused about the date of her injury, and he told her “to remember,
to remember” (R. Exh. 125). She stated that La Serna never told
her to tell Respondent a specific date (R. Exh. 125). Thereafter,
on October 24, 2016, Quintanilla moved to have her case dis-
missed (Jt. Exh. 22).
Quintanilla did not testify at the hearing, and the parties stip-
ulated:
1. Quintanilla willfully provided false information to SBM
regarding the date of her injury.
2. Quintanilla willfully provided false information to avoid
lawful discipline issued on March 13.
3. Quintanilla informed SBM of this false information prior
to March 19.
4. Quintanilla was given several opportunities to retract her
submission of false information in her suspension meeting, and
she refused.
5. Quintanilla’s civil complaint is admitted into evidence.
Quintanilla’s deposition in her civil complaint lawsuit is admit-
ted into evidence.
6. The March 27 letter of Cazarez is admitted into evidence.
(Tr. 669–671).
IX. RESPONDENT’S APRIL 1 SUSPENSION AND APRIL 23
and Arostegui, and shop stewards Fernandez, Prieto, Ruiz, Quintanilla,
Ruby Olmos, and La Serna; these shop stewards had been newly elected
and this was the first labor-management meeting they attended (Tr. 161,
280, 841). Quintanilla’s suspension was discussed during this meeting.
Lopez, who was not a shop steward, was not permitted to attend the meet-
ing, and upon learning that she was outside building 54, Periolat told the
Union attendees that Lopez must leave the premises or she would call
security (Tr. 164, 572, 840). Periolat did not give the same warning to
La Serna or Quintanilla.
SBM SITE SERVICES, LLC 19
TERMINATION OF LOPEZ
A. Lopez’ March 27 Conversation with Lead Alcantara
Lopez worked for Respondent from June 2011 to April 1 as a
custodian, and worked at the South San Francisco facility for 10
years (Tr. 500–501, 505–506, 621). Prior to her termination,
Lopez reported to Rodriguez, and her lead was Alcantara (Tr.
505, 507–508). Lopez was also a member of the Union; as such,
she attended meetings, helped distribute union leaflets, and par-
ticipated in elections (Tr. 509, 621).
Shortly after the March 24 meetings, on approximately March
27 (the day after the Quintanilla meeting) Lopez and Alcantara
spoke in the lobby of building 43 (Tr. 532, 953). Lopez and
Alcantara, however, disagree on how the conversation com-
menced and what was said.
Lopez claims that Alcantara spoke to her first about a rumor
that La Serna would be suspended, while Alcantara claims that
Lopez initiated the conversation about La Serna (Tr. 533–534,
953–954). During this meeting, Lopez testified that she stated,
“If Jose La Serna got fired, then all the employees would make
Genentech quake, that because we would make a lot of noise and
if we had to bring pots so that they would hear use, we would do
it” (Tr. 534–535, 636).44 Lopez testified she also used the
phrase, “The buildings were going to shake” (Tr. 636). Lopez
denied Periolat’s claim that she used the phrase “explode Genen-
tech’s buildings when speaking to employee-witnesses” (Tr.
535, 553).
In contrast, Alcantara testified that Lopez made much stronger
statements such as “she wouldn’t let anybody touch a hair on
Jose La Serna’s head” and that “she was going to do whatever
was in her hands not to let that happen, that she was going to kick
out SBM from Genentech and that she had a lot of contacts that
she could reach out to bomb the buildings” (Tr. 954). Alcantara
told Lopez not to get involved in other people’s problems, that
she did not like to hear that type of rhetoric, and was leaving to
go to another building (Tr. 954). In response, Lopez showed her
phone to Alcantara, telling her to remember the date and time
since she had contacts in Columbia (Tr. 954–955). The conver-
sation lasted 15 minutes (Tr. 955).
After her conversation with Lopez, Alcantara spoke to her su-
pervisor Rodriguez (Tr. 958; R. Exh. 27). She told him that she
was afraid of how Lopez had expressed herself and wanted to
provide a statement to Respondent (Tr. 958). A day or two later
Alcantara documented her conversation in a statement (Tr. 968;
R. Exh. 27).45
Rodriguez then wrote his own statement, documenting con-
versations he had with Lopez regarding weapons (R. Exh. 27).
Specifically, Rodriguez provided three statements, and also in an

44 Lopez explained that in her native Columbia the term “quaking” or
“shaking” means to make so much noise that the building would shake
(Tr. 535).
45 Alcantara’s statement differs slightly from her hearing testimony.
Alcantara states that Lopez mentioned that La Serna was having prob-
lems with Trinidad, and Lopez said, “Listen up Betty, I Luz Dary Duque
swear by the only daughter I have that if someone touches Jose [La]
Serna by a hair, I will make some calls to Columbia with great contacts
of mine and if you don’t finish I will kick it to SBM and command to
bomb these buildings and you will fall, I swear” (R. Exh. 27).
email on March 31, where he wrote, “I wanted to bring this con-
versation [regarding Lopez’ alleged comments that she had been
trained to use an AK47] up to you guys since the behavior of Luz
is really aggressive, shows a lot of attitude” (R. Exh. 27). In one
of these statements, Rodriguez noted that Lopez “confessed” two
weeks prior about her personal history in Columbia which in-
cluded alleged guerilla warfare (R. Exh. 27). Rodriguez pro-
vided Alcantara’s and his statements to Periolat and other man-
agers for Respondent.
With regard to Lopez’ alleged statements to Alcantara on
March 27, I credit Alcantara’s testimony rather than Lopez’s tes-
timony. Alcantara testified that Lopez threatened to harm
Genentech property and employees if Respondent terminated La
Serna. Although Alcantara’s contemporaneous notes differ
slightly from her hearing testimony, her testimony regarding the
tenor of Lopez’ comments remained the same. Moreover, after
Alcantara approached Rodriguez about Lopez’ comments, he
then recalled recent various conversations and behavior by
Lopez that concerned him. Rodriguez provided detailed state-
ments recounting several conversations with Lopez about weap-
ons. Although it is undisputed that neither Respondent nor Al-
cantara reported Lopez’ statements to law enforcement, this fail-
ure to do so does not undermine my finding that Lopez made
comments to the effect that she would harm Genentech’s prop-
erty and employees if La Serna was terminated as he had not yet
even been suspended—her threat was contingent on a certain
outcome. After learning of Lopez’ comments, Periolat sus-
pended her and would not permit her to return to the South San
Francisco facility without permission. In addition, as set forth
below, during the suspension and termination meetings, Lopez
never explained to Respondent what she is claimed at the hearing
to have said–that she only intended to make noise with pots and
pans if La Serna was terminated by Respondent. Furthermore,
Lopez testified inconsistently regarding the subject of weapons.
On direct examination, Lopez stated that she spoke to Rodriguez
about weapons but only in the context of soap operas; on cross-
examination, however, she denied speaking to him about weap-
ons at all. Overall, Lopez’ testimony cannot be credited, and
thus, I rely upon Alcantara’s testimony.
B. Respondent’s Suspension of Lopez
Once Periolat learned about Lopez’ alleged statements, she
decided to suspend Lopez due to the seriousness of the allega-
tions, which was consistent with Respondent’s workplace vio-
lence policy (Tr. 1275–1276). Thus, on April 1, Periolat, along
with Jedan and Castro, met with Lopez who was represented by
Ruiz; Perez acted as an interpreter (Tr. 542–543, 546, 835–836;
GC Exh. 11).46
46 Castro took notes during the meeting, but she missed approximately
30 seconds of the meeting when she went to get security (R. Exh. 33; Tr.
1186). Castro’s contemporary notes largely corroborate Lopez’ version
of events but her notes make no mention of Lopez and Ruiz’s allegation
that Respondent asked her to sign a blank sheet of paper (Tr. 546, 835–
836, 840). Furthermore, Castro denied giving Lopez any form during
this meeting other than the notice of suspension (GC Exh. 11; Tr. 1171–
1172). I credit Castro’s testimony as her testimony was corroborated by
her contemporaneous notes. I do not credit Lopez and Ruiz’s testimony.
I find it unlikely that Respondent would ask Lopez to sign an
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Periolat announced that the meeting would cover the recent
complaints Respondent had received about Lopez (Tr. 543).
Originally, Lopez and Ruiz understood that the scheduled meet-
ing was to discuss La Serna’s potential disciplinary action, as he
had named Lopez as a witness. Periolat changed the subject mat-
ter of the discussion due to the complaints Respondent received;
Periolat informed Lopez that she was suspended (Tr. 545–546).
Unsurprisingly, Lopez and Ruiz became upset (Tr. 837).
After an argument about Lopez seeking to audio record the
meeting and whether Respondent was following proper proce-
dures, Periolat told Lopez the details of the complaints. Specif-
ically, Periolat told her that she was accused of threatening to
bring in weapons to the South San Francisco facility to kill peo-
ple, and blow up the buildings if La Serna were terminated (Tr.
554, 837). Lopez yelled, “So you’re accusing me of being a ter-
rorist, of being a criminal? You could have accused me of being
a thief, that I could have stole [sic] something or hit someone,
but never that I’m a terrorist” (Tr. 553–554). Ruiz then stated,
“Ma’am, just because we’re Columbians doesn’t mean that
we’re terrorists. Not all Columbians are terrorists” and “I don’t
think that someone who has been granted political asylum in this
country is going to be a terrorist, because to get political asylum
they investigate everything about that person, everything about
their life” (Tr. 554–555). Lopez then asked for the name of the
person who had accused her because she was going to the police
(Tr. 555–556). Lopez continued to demand the name of her ac-
cuser and told Periolat that she would be reporting all their names
to the police as this was an “atrocity” and a “crime” against her
(Tr. 556). Periolat stated that she could not give her the names
of her accusers at that time (Tr. 556). Periolat also asked for
Lopez’ badge but Lopez refused to provide her badge to Re-
spondent; she would only provide her badge to security (Tr. 556–
560, 655, 838, 840, 864). After security took her badge, Lopez
left the South San Francisco facility (Tr. 560).47 Respondent
provided a suspension form to Lopez which stated, “Investiga-
tion regarding bad verbal behavior and apparently threats of vi-
olence and supposed damage to the client’s property” (GC Exh.
11).

uncompleted form. The purpose of the meeting was to announce Re-
spondent’s decision to suspend Lopez, and Respondent has no reason to
hide the reasons for the suspension. Furthermore, on April 7, Perez also
documented this meeting which is consistent with Castro’s summary (R.
Exh. 27).
47 After this meeting Lopez went to the police station to complain (Tr.
563). Respondent never reported Lopez’ threats to law enforcement (Tr.
565–566, 840).
48 On direct examination, Lopez testified in response to Alcantara’s
declaration, “And at no point, never, have I said anything about blowing
anything up or killing anyone. I have not said anything like that. That I
couldn't believe that she was making such a serious accusation and that
these people, including the company, would have to give me evidence
and respond to me in a court in front of a judge” (Tr. 589). Then, on
cross-examination, Lopez testified that she disagreed with Alcantara’s
affidavit, and clarified that she said, “If Jose was fired, we would make
a march, we would make so much noise that the buildings were going to
shake from the noise, because we wanted Genentech to find out what was
going on” (Tr. 647). But, Lopez never stated as such in her Board
C. Respondent’s Termination of Lopez
After Lopez’ suspension, Periolat investigated Lopez for sus-
pected violation of Respondent’s violence in the workplace con-
duct policy related to the statements attributed to her (Tr. 1277).
In this regard, Periolat interviewed employees, including Lopez,
with the Union attending most of the interviews (Tr. 1277).
Also, on April 20, Periolat interviewed Lopez with Pasaran act-
ing as her representative at an offsite location; Mutt acted as a
translator (Tr. 580–583). Periolat presented “many” written dec-
larations to Lopez, and asked for her responses (Tr. 583–584,
646, 1277–1278). Lopez claimed that she did not interact with
Hernandez or Barrientos often (Tr. 584–590). In response to Al-
cantara’s allegations, Lopez testified she “completely lost it”
during this interview and started crying; Lopez denied making
the statements she was accused of making (Tr. 588–589, 647,
1279–1280).48 In response to Rodriguez’s multiple statements,
Lopez admitted that she spoke to him about weapons, but only
in the context of soap operas about terrorism and drug trafficking
from Columbia (Tr. 594–596).49 The meeting lasted approxi-
mately 3 hours (Tr. 598–599).
Periolat’s findings were accumulated in an investigative file
(R. Exh. 26 and 27). At the conclusion of the investigation, Pe-
riolat recommended to Kahn that Lopez be terminated (Tr. 1280;
GC Exh. 26). Kahn concurred, and Periolat decided to terminate
Lopez (Tr. 815, 1280–1281).
On April 23, Respondent, via conference call, informed
Lopez, who was represented by Pasaran, that she was being ter-
minated (Tr. 599– 600, 602, 656). The termination form states,
“Ch.2 EHB Insubordination-Initially refusing to surrender
badge/Ch.9 EHB Violence in the workplace states “Threats or
physical acts against an individual or property”/Ch.2 EHB Busi-
ness Ethics and Conduct-Dishonesty in an investigation” (GC
Exh. 12, 210).
D. The Union files a grievance regarding Lopez’ termination
The Union filed a grievance regarding Lopez’ termination,
and on July 8, Pasaran and Lopez met with Periolat, Kahn, and
Castro at an adjustment board review per Art. XVII of the CBA
(Tr. 604–606, 1177, 1282–1283). Kahn testified that during this
meeting, Lopez attempted to clarify that bombing a building was
affidavit which was taken under oath and closer in time to her suspension
and discharge (Tr. 647–649). Lopez stated that she was depressed after
her termination, and did not want to talk or think which excused her
omission (Tr. 649). Lopez also claimed that Alcantara’s declaration
along with other employees’ declarations was manipulated by Pasaran
(Tr. 648). I do not find Lopez credible. Lopez’ testimony was filled with
conjecture. Lopez never explained what she actually said to Alcantara.
Instead Lopez reacted to the accusation with a denial and her own accu-
sation of being called a “terrorist.”
49 Lopez testified that Rodriguez may have a reason to testify against
her as he allegedly harassed her (Tr. 637–639). However, Lopez never
filed a sexual harassment grievance/claim with a third-party agency or
filed a civil lawsuit (Tr. 640). On cross-examination, in contrast to her
direct examination testimony, Lopez denied speaking to Rodriguez about
weapons, specifically about AK-47s (Tr. 594–596, 645). Rodriguez no
longer works for Respondent. I rely upon his statements only to the ex-
tent it shows how Alcantara’s complaint reached Respondent. I rely pri-
marily on the testimonies of Lopez and Alcantara.
SBM SITE SERVICES, LLC 21
a Columbian euphemism and argued that she was going to drop
a “truth” or “information” bomb on Genentech and Respondent
(Tr. 1035–1036). The meeting ended with the adjuster inform-
ing Pasaran he would give his results in writing (Tr. 606). How-
ever, on July 8, the Union and Respondent signed a document
which indicated that no agreement had been reached and that the
matter was “deadlock[ed]” (GC Exh. 401). After not hearing
from Pasaran, Lopez sent an email to Solis on September 1 ask-
ing for an update (GC Exh. 37(a) and (b); Tr. 608). Lopez never
received a response to her email (Tr. 608–609). On November
10, Lopez asked Solis to file a new grievance with Respondent
for her termination due to her union activities and slander (GC
Exh. 38(a) and (b); Tr. 609–610). Again, Lopez did not receive
a response (Tr. 610).
X. RESPONDENT’S MAY 20 SUSPENSION AND JUNE 20 TERMINATION
OF PRIETO
A. Prieto’s employment with Respondent and the May 12
incident
Prieto began working at Respondent’s South San Francisco
facility as a custodian in 2008, and as a GMP tech from 2013 to
May 20, 2015 (Tr. 358–359, 396, 430; Jt. Exh. 15). In 2015,
during the weekdays, Prieto reported to lead Jose Lazo (Lazo),
who reported to Brodie and Sanchez (Tr. 364, 446). Lazo would
assign daily tasks to the employees including Prieto (Tr. 447,
490–491). Prieto’s daily cleaning tasks varied from day to day
during the weekdays (Tr. 360, 363). As a GMP tech, Prieto re-
ceived training on good documentation practices in 2013 and
2014 (R. Exh. 50, 55, 56; Tr. 412–414, 1019–1020, 1111). Prieto
also received training on the “stop the job” policy which taught
employees to inform their supervisors when they did not feel
comfortable or safe performing a task and to stop the task imme-
diately (Tr. 421–422).
In certain GMP areas, GMP techs must sign cleaning logs
(FN2003)50 indicating that certain areas have been cleaned, and
a pass through log (FN1989) indicating that cleaning equipment
brought into specific areas have been sanitized before entry into
these rooms. Within building 3, the cell culture (CC) lab (or in-
oculation suite), room 3218, is the most controlled area (Tr.
1104). As such, before any employee enters room 3218 to clean,
the employee must document steps taken to clean and sanitize
any equipment taken into the CC lab; this room has daily tasks
so there should be an entry for every day (Tr. 1105). But the
employee should also include an entry for room 3219 as this is
the room where the additional sanitization and gowning must be
performed before entering room 3218 (Tr. 1108).
On May 12, according to Prieto, when he arrived at work,
Lazo asked him to perform the task of buffing the “blue” room
or media prep room in building 3, and Prieto replied that he did

50 FN stands for “foreign number” (Tr. 1028).
51 Buffing involves using a rotation machine to shine the floor (Tr.
411).
52 The log Prieto signed was a GMP document owned and managed
by Genentech and used as an official record for regulatory review (Tr.
1065). Restroom logs differ in that they are SBM owned documents
which are provided as a convenience to show its customer that the re-
stroom has been serviced (Tr. 1065).
not have knowledge of that work route (Tr. 392–393, 977).51
Prieto testified he had never received training on buffing in the
GMP areas (Tr. 411). Prieto testified that Lazo insisted that he
perform the work as he had no one else to perform the task, and
assured Prieto he would show him the work route (Tr. 393).
Prieto testified that Lazo showed him the room, but never men-
tioned to him that he should clean both of the laboratories (rooms
3218 and 3219) inside the “blue” room (Tr. 393, 406, 459).
Prieto cleaned the rooms on the work route as Lazo had shown
him, and went to sign the cleaning logs (Tr. 393–394). Prieto
testified that Lazo showed him which logs to sign and where spe-
cifically on the logs to sign (Tr. 394, 462). Prieto signed those
spaces on the log, not realizing that he was signing that he
cleaned rooms which he had not done (Tr. 394–395; R. Exh.
54).52
Directly contrary to Prieto’s testimony, Lazo testified that on
May 12, he told Prieto that the employee who performs buffing,
Donald Manzanares (Manzanares), was on vacation and asked
Prieto if he could perform the work (Tr. 977). Prieto responded
that he could, and Lazo asked Prieto if he could show Prieto the
area to clean but Prieto told him he had done the work 3 times
prior and could do it (Tr. 977–978). Lazo testified that he would
never send an employee to an area to clean where he does not
have knowledge (Tr. 978). Lazo denied telling Prieto to sign the
logbooks for rooms he did not clean on May 12 (Tr. 983–984).
A short while after May 12, Brodie testified that GMP tech
Giovana Loli approached him and showed him a discrepancy in
the pass through log (FN1989) (Tr. 1103). Brodie then looked
at the pass through log again to see the date that the entry was
missing (Tr. 1105). Reviewing the pass through log, Brodie no-
ticed the date 051215, or May 12, 2015, was missing (R. Exh.
83; Tr. 1106–1107). Because Brodie could not tell from the pass
through log who failed to enter in the date, he looked at the clean-
ing log (FN2003) for the actual cleaning which occurred in the
area (Tr. 1106; R. Exh. 54). The cleaning log shows that Prieto
initialed that he cleaned the CC lab, but the pass through log did
not have a correlating entry to show that the buffing equipment
was sterilized before being brought into rooms 3218 and 3219
which are within the CC lab (Tr. 1108). Based on his review of
the logbooks, Brodie assumed that Prieto completed the cleaning
but had forgotten to sign the pass through log book, which is
known as an omission (Tr. 1109). Typically, a failure to com-
plete the pass through log results in a verbal warning, and has
not resulted in an employee’s termination (Tr. 1016, 1108–
1109).53
On May 19, Brodie and Sanchez met with Prieto and La Serna,
as his union representative, to present Prieto with a request for
disciplinary action for alleged violation of an SOP (GC Exh. 8;
Tr. 1111).54 The request states:
53 SOP, GSP 005 refers to documentation practices to fill out the logs
(Tr. 1110).
54 Brodie was aware that Prieto was a shop steward, but unaware if
Prieto participated in any marches or signed any petitions (Tr. 1134–
1135). I do not credit Brodie’s testimony. As Kahn was Respondent’s
contact for Genentech, it is more likely than not that Genentech shared
the petition, which included Prieto’s signature, with Kahn. Kahn, in turn,
likely shared this information with Brodie. Khan also observed Prieto at
the April 16 march, which is information he likely shared with Brodie
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On 051215 Adilio Prieto entered rooms 3218 & 3219 to per-
form Buffing activities. Per SOP 200.847 All equipment must
be cleaned and sanitized prior to entry of these rooms and doc-
umented on FN 1989 [pass through log]. Adilio signed as per-
forming cleaning activity in these rooms on FN 2003 [cleaning
log] but failed to document entry of equipment on FN 1989 for
cleaning that occurred on 051215. Discrepency [sic] 1028535
was initiated by GNE area owner for this ommission [sic]. This
is also in violation of SBM supporting clients right to opperate
[sic] policy.
(GC Exh. 8). Brodie showed Prieto the two logbooks to provide
Prieto an opportunity to explain the error (Tr. 1112). Brodie
asked Prieto if he had forgotten to sign the pass through log (Tr.
387). Prieto responded that he had not forgotten to sign the pass
through log because he had never cleaned the room (Tr. 1112).
Brodie brought Prieto’s attention back to the cleaning log which
Prieto initialed, which stated that he had buffed the rooms (Tr.
1113). Prieto told Brodie that Lazo had told him to sign the
cleaning log (Tr. 388, 1113). Prieto stated that Lazo insisted that
he help him perform the work and Lazo would tell him which
rooms were to be cleaned and where to sign on the log (Tr. 388).
Prieto further explained that Lazo told him to clean the “blue
room” but never told him that he needed to clean the laboratory
rooms (rooms 3218 and 3219) inside the blue room (Tr. 388,
417). Brodie then told Prieto that he needed to escalate the mat-
ter to human resources to investigate, so Prieto should document
his own version of events (Tr. 1113). 55
Prieto documented his version of events, and Brodie also doc-
umented the meeting via email (Tr. 1114). Prieto wrote, “I,
Adilio Prieto, they asked me to work doing buffing when they
encountered me about buffing the CC lab. There was a confu-
sion that happened not appropriately informing me of the area
and how to work it” (R. Exh. 59(a) and (b); Tr. 1116).56
Due to their conversation with Prieto, Brodie and Sanchez
went to Lazo to obtain his version of events (Tr. 1119). Brodie
informed Lazo that they would be escalating the matter to human
resources and asked him to write a statement (Tr. 1120). That
day, Lazo created a statement of his version of events (R. Exh.
60). In this statement, Lazo wrote:
Yesterday, Adilio [Prieto] told me that they were questioning
some rooms that were signed off but not done. He told me that
he did not go in to do them because he did not have knowledge
about the rooms that he didn’t do. I told him–okay. “I said you
didn’t go in. He said no because of the work he was doing, it
was being done, he was doing it quickly.” “So the work he was

and other managers. It also appears that Prieto mistakenly named La
Serna as his representative, which is unlikely since La Serna had been
terminated.
55 Sanchez, on May 20, documented this conversation (R. Exh. 46).
Sanchez stated that Prieto told them that Lazo told him not to go into the
CC labs (R. Exh. 46). Sanchez did not testify at the hearing, but contin-
ues to work for Respondent.
56 I rely on Brodie’s translation rather than the translation in the ex-
hibit as that translation did not include the term CC lab which is written
in Prieto’s statement as “sisilaban.” Respondent’s counsel could not
doing, he was doing it quickly. I, Jose, remember that I told
you.” “Jose, remember that I told you that I didn’t go in. I said–
“I told him you haven’t told me this at any point. I don't re-
member, Adilio, what you’re saying, I said, Jose Lazo, at no
point have I told him not to do a job.”
(Tr. 986). On May 28, Lazo wrote another statement
again denying Prieto’s claims (R. Exh. 68a and b).
B. Respondent’s Suspension of Prieto
The following day, on May 20, Prieto, with Fernandez as his
representative, received a notice of suspension for “falsification
of documentation on FN2008 on 051215” from Brodie and Trin-
idad (GC Exh. 9; Tr. 390–391, 1125).57 The notice further stated
that the final disciplinary action would be determined after an
investigation and/or review of his disciplinary file. During this
meeting, Prieto again explained that he had not been properly
taught to perform the task to which he was assigned, and that
there had been miscommunication between Lazo and himself
(Tr. 392, 1125). Brodie and Trinidad informed Prieto that he had
cleaned these rooms many times in the past years, should not
have been confused and that, by signing that he cleaned rooms
which he did not, had falsified documents, as his signature was
a legally binding document which is reviewed by the FDA (R.
Exh. 65; Tr. 1127). Trinidad and Brodie took Prieto’s badge and
told him not to return to Genentech until he was called by Re-
spondent (Tr. 1127). The meeting lasted no more than 10
minutes (Tr. 392).58
C. Respondent’s termination of Prieto
Thereafter, Periolat, with Trinidad’s assistance in collecting
statements and providing translations, investigated the matter
and interviewed other GMP techs, and other employees who had
signed logbooks (Tr. 791–792, 1016, 1022–1023, 1259–1260; R.
Exh. 70). Trinidad questioned the GMP techs on whether they
knew not to sign a logbook without completing the task either by
their own decision or being told by a lead to do so (R. Exh. 70).
Trinidad sent her notes with the questions and answers of these
employees to Periolat (Tr. 1206).
Brodie also wrote an email to Kahn and Trinidad summarizing
the incident (R. Exh. 63). On May 20, Brodie wrote,
On 051915 it was discovered that Adilio Prieto was assigned
to perform cleaning activities (floor buffing) in Inoc suite 3218
&3219 for the date of 051215. His task requires him to sign
for cleaning activity on FN 2005 and as it is an Inoc suite it is
required to sign a material transfer log 1989 for any materials
brought into the room. Adilio signed for cleaning activities in
both rooms on FN 2005 but failed to sign the 1989 for the
identify who translated Prieto’s statement originally but admitted that
Respondent provided the translated document to the General Counsel.
57 Brodie documented this meeting by sending an email to Trinidad
and himself on May 26 (R. Exh. 65).
58 With La Serna’s assistance, Prieto prepared a detailed statement
regarding the events of May 12 for the Union (Tr. 474). Prieto could not
recall if the statement at R. Exh. 69 was the same statement he prepared
with La Serna’s assistance. However, the statement, dated May 29, cor-
roborates Prieto’s hearing testimony (R. Exh. 69(a) and (b)).
SBM SITE SERVICES, LLC 23
corresponding cleaning on 051215. As it was not documented
or verifiable a DMS was initiated by GNE area owner for the
omission of information.
[…]
After explaining the situation to Adilio, he told us that the rea-
son that he did not sign the 1989 is not because he forgot but
because he did not clean the rooms. He was then asked why he
signed for the rooms if he did not clean them. He responded
that he was shown the area of the FN he was to sign by Lead
Jose Lazo. It was explained to him that according to GMO
GDP (Good Documentation Practices) training he is not to sign
for any room that he did not clean.
He then stated that he is familiar with the rooms and has done
mopping activities in them various times and knows the room
numbers and pass–through procedure for the rooms in ques-
tion. He stated however that he was not familiar with the buff-
ing route and that he thought he was not supposed to clean the
inoc suit per instructions from Jose Lazo.
(R. Exh. 63).
On May 29, Prieto submitted another statement to human re-
sources (R. Exh. 69). In this statement, Prieto noted that Lazo
had told him that he needed to help perform buffing in the con-
trolled area because Lazo was behind on that work and the other
employee who was in charge of the task was not going to finish
on time (R. Exh. 69). According to Prieto, he told Lazo that he
was not familiar with the work area, and Lazo said he would
show him the area (R. Exh. 69). Prieto agreed to help him but
also told him there was too much work, and he would not have
time for signatures (R. Exh. 69). Prieto wrote that Lazo told him
not to worry, and that he would help him with the signatures (R.
Exh. 69). Prieto provided further details, including stating that
he did not realize he needed to buff the two laboratories within
the larger media prep room (R. Exh. 69). Prieto further cast
blame on Lazo, stating that Lazo had never checked on him or
told him that by signing for the media prep room cleaned that he
was committing to have buffed the two inner laboratories (R.
Exh. 69).
On June 4, Periolat asked Brodie to review Prieto’s May 29
statement (Tr. 1121–1122). Periolat wanted to know how many
times Prieto cleaned the area at issue in the past, and also asked,
“Was it really the first time?” (R. Exh. 71). In response, Brodie
noted that Prieto had performed various tasks in the area before,

59 Respondent provided a comparator disciplinary action. In March
2013, Respondent terminated Veronica Barajas (Barajas) for failure to
follow proper SOP requirements and falsifying logbooks (R. Exh. 90).
Barajas claimed to clean a room and signed the logbook as such but then
later admitted she had not cleaned the room (R. Exh. 90). Brodie and
Mendoza were involved in this matter. The General Counsel argued in-
stead that a June 2015 incident involving Giovana Loli was comparable
to Prieto’s violation. In June 2015 Mendoza issued Giovana Loli a ver-
bal warning for cleaning certain rooms but failing to sign the appropriate
equipment pass through log which violated good documentation prac-
tices and client’s right to operate (GC Exh. 116, 116(b)). Brodie ex-
plained that Loli did not falsify documents, and actually performed the
was familiar with the building and the log sheets (R. Exh. 71; Tr.
1123). Brodie also explained that Prieto may have never buffed
those particular rooms, but he has training in the area (R. Exh.
71; Tr. 1123). Brodie further explained that Lazo on May 11
noted that certain rooms in building 3 did not need to be buffed
but rooms 3218 and 3219 were not marked out (R. Exh. 66 and
71). Brodie further stated that every employee is responsible for
the logbook entries, and that leads only assist and will not be held
responsible for an employees’ mistakes (R. Exh. 71). In addi-
tion, Brodie testified that the room numbers were listed on the
doors that Prieto worked (R. Exh. 71; Tr. 1123).
Periolat compiled an investigative file with the evidence gath-
ered and prepared a summary (R. Exh. 46). She concluded that
Prieto violated the following policies: (1) violation of any SBM
policy, rule or safety regulation when falsifying Genentech’s
logs; (2) dishonesty of any kind, including, but not limited to,
providing false, incomplete or misleading information related to
the GMP logs; (3) violation of GMP tech 2 job responsibilities
including understanding and following directions, consistently
following all customer and SBM SOP’s and procedures, and
completing daily logs accurately and completely; and (4) viola-
tion of business practice or policy (R. Exh. 46).59 Periolat, who
also considered Prieto’s prior disciplinary record, decided to ter-
minate him for the violations (R. Exh. 46; Tr. 1264–1265).60 Pe-
riolat consulted Kahn for his approval or disapproval while Bro-
die had no role in the decision to terminate (Tr. 815, 1023–1024,
1129). These violations, listed in Periolat’s summary, were not
all included in Prieto’s termination notice.
On June 10, Respondent discharged Prieto for conduct viola-
tions described as “falsifying documents; providing false or mis-
leading information, violation of GMP Tech Job Responsibili-
ties, Violation of business practice or policy” (GC Exh. 10; Tr.
397–398). Per Genentech’s rules, Respondent informed Genen-
tech that those rooms had not been cleaned (R. Exh. 79). This
record is unclear as to whether Respondent or Genentech drafted
the summary which notes that the error by Prieto were due to
human error and did not affect product-quality or processing (R.
Exh. 79).
As for the events of May 12, I fully credit the testimony of
Lazo rather than Prieto’s testimony as Lazo remained consistent
in his version of events. I do credit Prieto for being honest im-
mediately when asked why he did not sign the logbooks. If
Prieto clearly sought to deceive Respondent in claiming to clean
the rooms when he purposefully did not, then he would not have
admitted that he did not clean the rooms. But Prieto provided
contrary reasons why he did not clean the rooms. Prieto honestly
cleaning task unlike Prieto (Tr. 1140–1141). Respondent notified
Genentech of Giovana Loli’s error in failing to document the appropriate
logs (R. Exh. 79). The General Counsel also argued that Christina
Ramirez (Ramirez) was only suspended in September 2016 when she
signed a log before completing her cleaning tasks (GC Exh. 127).
Ramirez immediately acknowledged her error and apologized.
60 Prieto received a warning on December 10, 2014 for failing to re-
port an accident, and on October 3, 2014, he received a warning regard-
ing safety equipment (R. Exh. 46). When reporting the October 3 inci-
dent, via email to other managers including Kahn, Jedan, and Sanchez,
Manager Kristen Sanchez noted, “This is a well known shop steward”
(R. Exh. 58).
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and consistently testified that he was confused about which
rooms to clean but I cannot credit his testimony in full because
the reasons for why he was confused about the rooms did not
remain consistent. Prieto testified that Lazo said he did not have
an employee to buff the floors in the CC lab, but in his May 29
statement, he admitted that Lazo told him that the employee who
was assigned to buff the room was behind on his work and Prieto
needed to complete the work. Prieto also claimed that Lazo told
him not to clean the rooms. Prieto admitted to receiving training
in GMP, and had been a GMP tech for two years but then claims
that he not know how to perform the buffing task or at the very
least, realize he was signing that he cleaned an area when he did
not. The rooms were clearly numbered and the logbook was not
marked out as not needing to be cleaned. In total, Prieto’s ver-
sion of events cannot be completely credited while Lazo’s ver-
sion of events is totally credited.
DISCUSSION AND ANALYSIS
A. Procedural Issue: Deferral Argument
Respondent argues that La Serna and Lopez’ allegations
should be deferred to arbitration as the Region initially decided
to defer their cases (R. Br. at 54–59).61 The General Counsel
argues that deferral of La Serna and Lopez’ allegation is not ap-
propriate for policy reasons (GC Br. at 94–104). While I fully
understand Respondent’s obvious frustration with the Region’s
changing position, I agree with the General Counsel that deferral
is not appropriate here based on the totality of the circumstances.
As background, initially, on October 30, the Regional Director
for Region 20 deferred La Serna’s suspension and termination
for serving as shop steward and in retaliation for his union activ-
ities to the parties’ CBA (Jt. Exh. 1, 16A). The Union never
contacted La Serna to schedule his arbitration despite his many
inquiries. Thus, on February 10, 2016, the Regional Director re-
voked his decision to defer to the parties’ CBA as the “underly-
ing grievance is not being processed through the grievance/arbi-
tration procedure” (Jt. Exh. 1, 16B). But then in May 2016, re-
lated charges against the Union were dismissed, allowing the
Union five months to proceed to arbitration (Jt. Exh. 1, 7, 8, 12,
13). In August 2016, the Union finally responded to La Serna’s
inquiry regarding arbitration, but the arbitration could not be
scheduled for some time.
Similarly, in October, the Region deferred Lopez’ allegations
to the CBA (Jt. Exh. 19A). The Union never contacted Lopez to
schedule the arbitration. Thus, on April 13, 2016, the Regional
Director revoked his decision to defer to the parties’ CBA (Jt.
Exh. 19B). But in May 2016, related charges against the Union
were dismissed, allowing the Union five months to proceed to
arbitration (Jt. Exh. 1, 13). By the close of this hearing, Re-
spondent received arbitration requests from the Union concern-
ing Lopez and La Serna which were scheduled for April and
May 2017, respectively (Tr. 1320–1321).
The Board has considerable discretion in determining whether
to defer to the arbitration process. King Soopers, Inc., 364
NLRB No. 93 (2016); Cooper Tire & Rubber Co., 363 NLRB

61 According to Respondent, deferral of Quintanilla and Prieto’s alle-
gations is not at issue in this proceeding (R. Br. at 54, fn. 15). In July
and December 2015, the Union declined to continue Quintanilla and
Prieto’s cases to arbitration, and the Regional Director revoked deferral
No. 194, slip op. at 6 (2016); Collyer Insulated Wire, 192 NLRB
837 (1971); United Technologies Corp., 268 NLRB 557 (1984).
The Board has articulated that deferral of an unfair labor practice
charge to the parties’ grievance procedure under the collective-
bargaining agreement is appropriate when numerous factors are
present. These factors include: if the dispute arose within the
confines of a long and productive collective-bargaining relation-
ship; if there is no claim of employer animosity to employees’
exercise of protected rights; if the parties’ collective-bargaining
agreement provides for arbitration of a very broad range of dis-
putes; if the arbitration clause clearly encompasses the dispute at
issue; if the employer asserts its willingness to utilize arbitration
to resolve the dispute; and if the dispute is eminently well suited
to resolution by arbitration. United Technologies Corp., supra at
558. Furthermore, the burden of proof lies with the party assert-
ing deferral which in this instance is Respondent. See Doctors’
Hospital of Michigan, 362 NLRB 1220, 1232 (2015).
Although the parties have a long and productive collective-
bargaining history, Respondent has had animosity towards the
employees’ exercise of their protected rights. For example, Re-
spondent strongly opposed any meetings or marches by the em-
ployees and made its position known via Trinidad’s letter to all
employees. Moreover, Respondent clearly did not appreciate La
Serna’s strong advocacy during grievance meetings. In addition,
this case presents a factual scenario where the Union failed to
represent its members adequately. Thus, the discriminatees in
this matter were in a state of limbo. Although they are shop
stewards, they could not take their cases to arbitration without
the Union representatives’ cooperation. And without the Union
representatives’ cooperation to take these matters to arbitration,
Respondent could not proceed to arbitration either. The Union’s
failure to represent these employees also precedes La Serna and
Lopez’ discipline as they did not respond to numerous requests
by the shop stewards for assistance in addressing Respondent’s
alleged unfair actions. Throughout 2015, the shop stewards
sought the union representatives’ assistance, to no avail. Thus,
deferral is inappropriate.
B. Witness Credibility
The critical findings of fact in this matter may only be re-
solved with credibility determinations. A credibility determina-
tion may rely on a variety of factors, including the context of the
witness’ testimony, the witness’ demeanor, and the weight of the
respective evidence, established or admitted facts, inherent prob-
abilities and reasonable inferences that may be drawn from the
record as a whole. Double D Construction Group, 339 NLRB
303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001)
(citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility
findings need not be all-or-nothing propositions–indeed, nothing
is more common in all kinds of judicial decisions than to believe
some, but not all, of a witness’ testimony. Daikichi Sushi, supra
at 622. In addition to my specific credibility findings set forth
above, I will provide my overall impression of key witness’
of their allegations (GC Exh. 408, 409). Thus, Respondent does not ap-
pear to argue that Quintanilla and Prieto’s cases should be deferred to
arbitration.
SBM SITE SERVICES, LLC 25
testimony.
As for the General Counsel’s witnesses, I found La Serna to
be a credible witness. La Serna provided extensive details re-
garding the experiences of the shop stewards and their interac-
tions with Respondent and the Union. La Serna’s testimony viv-
idly explained the conflict the shop stewards had not only with
Respondent but with its own Union representatives. La Serna
convincingly testified about the increasingly tense relationship
between Trinidad and himself. La Serna, in unrebutted testi-
mony, testified about an incident where Trinidad ostensibly
threatened with him with discipline for allegedly spreading false
rumors. La Serna’s credible background testimony set up the
incident of March 26 which is the key event leading to his termi-
nation. Although I do not credit La Serna’s testimony for the
start of the meeting, as I find it more likely than not that Trinidad
informed Quintanilla and her representatives the reason for her
suspension, La Serna credibly testified that the meeting became
heated and voice tones escalated. Certainly, as Quintanilla’s
shop steward, La Serna acted in an advocacy role, arguing on her
behalf. Thereafter, La Serna left the conference room. La Serna
testified without hesitation, remained calm, appeared forthright
and credibly captured the events as they took place. In addition,
on another key point, as explained above, La Serna testified rea-
sonably regarding his allowance to return to the South San Fran-
cisco facility. Certainly, without his badge he could not enter the
buildings, but Respondent did not clearly inform him which ar-
eas he could and could not return to on the property, including
the public areas, during his suspension.
As for Prieto, while he testified credibly regarding the details
of the start of Quintanilla’s March 26 meeting, he failed to testify
completely credibly with regard to his own incident. Prieto
seemed quite sincere in his testimony but frankly could not recall
many details which undermined his credibility. At one point he
could not recall whether he had training on good documentation
practices. Also, his reasons for why he did not clean the two
rooms for which he signed in the logbooks waffled. He testified
that he did not know that he needed to buff the floors of the two
rooms, but also claimed to not know how to buff these floors.
GMP techs are only given access to the buildings where they
have been trained to clean so it seems more likely than not that
he knew how to buff the floors of those rooms. In addition, Re-
spondent provides extensive training which Prieto had taken.
During the investigation, at the first meeting with Brodie, Prieto
initially blamed Lazo and stated that Lazo told him where to sign
on the logbooks and never told him to clean the rooms. But a
day later, Prieto stated he did not know how to buff the rooms.
Thus, as his version of events changed and because he could not
recall key details, I could not rely on his testimony regarding the
May 19 incident.
Lopez provided generally incredible testimony which was at
times contradictory and confusing. Many times during her testi-
mony, she became upset which is to be expected. However, dur-
ing cross-examination, when confronted again with the alleged
statements she made, Lopez became visibly angry, slamming the
witness stand with the palm of her hand. In addition, during the
suspension meeting, Lopez never clarified to Periolat what she
claimed to have said or explained how her statements could have
been misconstrued by Alcantara. If she had truly only used the
phrase “shake the buildings,” then one would expect Lopez to
have explained this idiomatic expression, especially when hear-
ing the accusations made against her, immediately when con-
fronted. She also likely would have clarified her comments after
Alcantara told her she did not like to hear such rhetoric. Overall,
Lopez did not appear believable in her version of events. Simi-
larly, I cannot credit Ruiz’s testimony as to key moments during
Lopez’ suspension meeting because even though she is a current
employee testifying against her own pecuniary interest, Ruiz also
testified that Respondent asked Lopez to sign a blank form dur-
ing her suspension meeting. As explained previously, such a
scenario is highly unlikely as it makes little sense for Respondent
to suspend Lopez without sharing with her the reasons. Thus,
Ruiz’s testimony was not corroborated by a credited witness, and
is not reliable.
As for Respondent’s witnesses, I found Periolat, Kahn, and
Brodie to be witnesses with mixed credibility. They testified in
a straight-forward manner with sufficient detail and little hesita-
tion. However, Respondent’s investigations of La Serna, Quin-
tanilla and Prieto, although detailed and extensive, focused on
irrelevant information or relied upon previously obtained evi-
dence. Also, on the issue of knowledge of union and protected
activity, Periolat, Kahn, and Brodie appeared untruthful. For ex-
ample, Kahn, on direct examination, appearing nervous, claimed
that he did not know if Quintanilla was a shop steward or even
running for Union office, when he suspended her. On cross-ex-
amination, though, he admitted to knowing that Quintanilla was
running for elected office. Thus, on this point, Kahn is not cred-
ible. Moreover, at one point Periolat denied knowing who was
involved in the marches and who was a shop steward but I reject
such testimony as it is clear from the record that Respondent
knew who was an active union adherent and who supported the
union and engaged in protected concerted activity. Several
emails among Respondent’s management officials show clearly
that they knew of La Serna, Prieto, and Quintanilla’s union ac-
tivity.
However, I found Alcantara, Lazo, and Castro to be generally
credible witnesses. I particularly found Alcantara to be a credi-
ble witness. Although her testimony differed slightly from her
investigatory statement, the tenor of Lopez’ comments was clear
to her. It also seems realistic that Alcantara did not immediately
fear for anyone’s safety as Lopez continually commented what
she would do “if” La Serna were terminated. Alcantara then ap-
propriately reported Lopez’ statements to her supervisor. Again,
it is reasonable that Respondent did not call law enforcement as
Lopez’ threats were not imminent–La Serna had not yet been
suspended or terminated. Lazo’s testimony is credited as set
forth above, and Castro seemed genuine in her testimony and her
contemporaneous notes corroborated her testimony.
Among Respondent’s witnesses, I did not find Trinidad to be
a reliable, credible witness. She testified in a self-serving, hy-
perbolic manner, and her testimony oozed with the impression
that she sought to remove La Serna from the workplace, espe-
cially since La Serna actively sought to remove her from the
worksite with the grievance. Trinidad wrote the day after her
meeting with La Serna that he acted in an “aggressive” manner
and sought to “intimidate” her into not following policy. How-
ever, Trinidad’s actions later that day belie her testimony.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Trinidad did not call security after La Serna’s alleged intimida-
tion but instead met with him approximately 6 hours later when
he represented Vargas in another potential disciplinary action.
She also met with him a few days later when he represented an-
other employee. Thus, Trinidad’s testimony that La Serna acted
in a manner that was threatening is simply not believable
C. Respondent Violated Section 8(a)(1) and (3) of the Act when
Suspending and Terminating La Serna
The General Counsel alleges that Respondent violated Section
8(a)(1) and (3) of the Act when it suspended and terminated La
Serna on March 30, and April 23, respectively (GC Br. at 41–
65). In support of its position, the General Counsel offers nu-
merous theories of discrimination. Respondent, on the other
hand, argues that it lawfully suspended and terminated La Serna
(R. Br. at 79–103). Specifically, Respondent argues that La
Serna’s March 26 conduct during Quintanilla’s disciplinary
meeting lost the protection of the Act, and that his termination
was lawful under a mixed-motive theory.
The appropriate analysis for La Serna’s suspension and termi-
nation is found in Burnup & Sims, 379 U.S. 21, 23–24 (1964). If
the very conduct for which an employee is discharged is the em-
ployee’s protected activity, the employer’s motivation is not at
issue. Phoenix Transit System, 337 NLRB 510 (2002), enfd.
mem 63 Fed.Appx. 524 (D.C. Cir. 2003). Furthermore, when an
employee is disciplined for conduct that is part of the res gestae
of protected concerted activities, “the pertinent question is
whether the conduct is sufficiently egregious to remove it from
the protection of the Act.” Stanford NY, LLC, 344 NLRB 558
(2005); Aluminum Co. of America, 338 NLRB 20 (2002).
The credible evidence indicates that La Serna engaged in pro-
tected, concerted activity when he represented Quintanilla dur-
ing her suspension meeting. I find that La Serna also engaged in
protected concerted activity when he participated in the April 16
march while suspended. The question then presented is whether
La Serna’s protected concerted activity lost the protection of the
Act during the March 26 meeting as well as the April 16 march.
On March 30, Respondent suspended La Serna for violating
the employee handbook rules regarding respectful communica-
tion with other employees, insubordination, harassment and in-
timidation, and violence in the workplace for his conduct during
the March 26 Quintanilla disciplinary meeting. Respondent also
noted that it planned to investigate La Serna for complaints from
female employees about his harassing and intimidating behavior
which center on his role as a shop steward (see R. Exh. 2; GC
Exh. 208, 209).62 The Board distinguishes between true insub-
ordination and behavior that is only disrespectful, rude, and de-
fiant. Goya Foods, Inc., 356 NLRB 476, 478 (2011), citing Sev-
erance Tool Industries, 301 NLRB 1166, 1170 (1991), enfd.
mem 953 F.2d 1384 (6th Cir. 1992).

62 Respondent did not address this suspension reason in its brief. Pre-
sumably, Respondent omitted the argument as the crux of its suspension
of La Serna was his conduct during the March 26 meeting with Trinidad.
However, I also find that Respondent violated the Act by suspending La
Serna for his alleged harassment of Barrientos and Hernandez. Both Bar-
rientos and Hernandez complained about La Serna’s alleged comments
during the March 24 shop steward-led meeting. They complained that
they felt harassed when La Serna mentioned the leads role in
Where, as here, the conduct arises from protected activity, the
Board does not consider such conduct as a separate and inde-
pendent basis for discipline. See Tampa Tribune, 351 NLRB
1324, 1326 fn. 14 (2007), enf. denied on other grounds sub nom.
Media General Operations, Inc., v. NLRB, 560 F.3d 181 (4th Cir.
2009). However, the “fact that an activity is concerted . . . does
not necessarily mean that an employee can engage in the activity
with impunity.” NLRB v. City Disposal Systems, Inc., 465 U.S.
822, 837 (1984). “[T]here is a point when even activity ordinar-
ily protected by Section 7 of the Act is conducted in such a man-
ner that it becomes deprived of protection that it otherwise would
enjoy.” Indian Hills Care Center, 321 NLRB 144, 151 (1996).
An employees’ “right to engage in concerted activity permits
some leeway for impulsive behavior, which must be balanced
against the employer’s right to maintain order and respect.
Where the conduct occurs in the course of protected activity, the
protection is not lost unless the impropriety is egregious.” Coors
Container Co., 238 NLRB 1312, 1320 (1978), enfd. 628 F.2d
1283 (10th Cir. 1980). In order for an employee engaged in such
activity to forfeit his Section 7 protection his misconduct must
be so “flagrant, violent, or extreme” as to render him unfit for
further service. United Cable Television Corp., 299 NLRB 138
(1990), quoting Dreis & Krump Mfg., 221 NLRB 309, 315
(1975), enfd. 544 F.2d 320 (7th Cir. 1976). The Board will not
find that an employee’s “disrespectful, rude, and defiant de-
meanor and the use of a vulgar word” loses the protected of the
Act while engaged in concerted activity despite the employer’s
characterization of the employee’s conduct as “insubordinate,
belligerent, and threatening.” Severance Tool Industries, 301
NLRB at 1170 (1991).
In addition, the Board has commented that “some latitude
must be given to participants in these incidents. Indeed, although
we might wish it otherwise, it is unrealistic to believe that the
principals involved in a heated exchange can check their emo-
tions at the drop of a hat.” United States Postal Service, 251
NLRB 252, 252 (1980). Union representatives are considered to
stand upon equal footing with management with regard to resolv-
ing labor disputes. Id. However, although union stewards enjoy
protections under the Act when acting in a representational ca-
pacity and are permitted some leeway for impulsive behavior
when engaged in protected activity, that leeway is managed
against “an employer’s right to maintain order and respect.”
Tampa Tribune, 351 NLRB 1324, 1325–1326 (2007). Thus,
when an employee engages in abusive or indefensible miscon-
duct during activity that is otherwise protected, the employee
loses the Act’s protection. DaimlerChrysler Corp., 344 NLRB
1324, 1329 (2005). This standard for losing the Act’s protection
is set high such that the conduct must be egregious or offensive.
Consolidated Diesel, 332 NLRB 1019, 1020 (2000), enfd. 263
F.3d 345 (4th Cir. 2001).
Respondent’s discipline of employees. They also complained that they
did not appreciate La Serna speaking negatively about Respondent and
Trinidad. Applying Burnup & Sims, 256 NLRB 965 (1981), Respondent
violated Sec. 8(a)(1) and (3) for suspending La Serna for disciplining
him for his protected concerted activity. Moreover, Respondent pre-
sented no evidence or argument that La Serna’s comments during the
March 24 meeting lost the protection of the Act especially as the meeting
was an employee–only meeting.
SBM SITE SERVICES, LLC 27
To determine whether an employee who is otherwise engaged
in protected activity loses the protection of the Act due to oppro-
brious conduct, the Board considers the following factors which
must be carefully balanced: (1) the place of the discussion; (2)
the subject matter of the discussion; (3) the nature of the em-
ployee’s outburst; and (4) whether the outburst was, in any way,
provoked by an employer’s unfair labor practice. Atlantic Steel,
245 NLRB 814, 816 (1979). Contrary to Respondent’s conten-
tion that La Serna’s behavior lost the protection of the Act, I find
that the Atlantic Steel factors weigh in favor of La Serna not for-
feiting protection of the Act.
The first factor, the place of the discussion, ultimately favors
protection in the circumstances of this case. On March 26, the
meeting to discuss Quintanilla’s suspension occurred in a con-
ference room. There is no evidence that anyone else heard their
discussion, and their discussion remained confined to the confer-
ence room interior. Furthermore, Respondent admits that the
meeting occurred in a private conference room (R. Br. at 81).
However, Cazarez’ statement indicated that La Serna left the
conference room “yelling” and “screaming” (GC Exh. 406). But
as stated previously, I give little weight to Cazarez’ statement as
he did not testify at the hearing. Even if La Serna’s yelling and
screaming was heard by other employees, I do not find that he
would lose protection of the Act as the yelling and screaming
was brief. See Goya Foods of Florida, 347 NLRB 1118 (2006),
enfd. 525 F.3d 1117 (11th Cir. 2008) (Board upheld administra-
tive law judge decision finding that less than one minute of loud
shouting by union leaders in a grocery store was not misconduct
so egregious to lose the protection of the Act); Noble Metal Pro-
cessing, Inc., 346 NLRB 795, 800 (2006) (place of discussion,
employee meeting away from employees’ work area, weighs in
favor of protection as no evidence of disruption to the work pro-
cesses); Stanford Hotel, 344 NLRB 558 (2005) (workplace out-
burst occurred away from normal working area in a closed door
meeting where no other employees present, and management’s
authority not weakened). In sum, I find this factor weighs in
favor of protection for La Serna’s conduct on March 26.
The second factor, the subject matter of the discussion, favors
protection. The purpose of the March 26 meeting was for Re-
spondent to present Quintanilla with its decision to suspend her.
La Serna acted as Quintanilla’s representative and advocated on
her behalf, disagreeing with Respondent’s decision. The subject
of the meeting clearly concerned the parties’ collective bargain-
ing agreement which is protected under the Act. See Crown Cen-
tral Petroleum Corp., 177 NLRB 322 (1969), enfd. 430 F.2d 724
(5th Cir. 1970) (during a grievance meeting, the veracity of man-
agement was at the primary issue and as such frank and not al-
ways complimentary views must be expected and permitted), cit-
ing Bettcher Manufacturing Corp., 76 NLRB 526, 527 (1948).
In addition, Respondent admits that the subject of the meeting
concerned discipline (R. Br. at 81). Overall, the nature of the
subject matter weighs in favor of protection of La Serna’s March
26 conduct.
The third factor, the nature of the outburst, favors protection
as well. The credited evidence shows that during the March 26
meeting, after Trinidad announced Quintanilla’s suspension for
falsification, La Serna told Trinidad that the suspension was un-
fair and the suspension was an abuse. The meeting then quickly
devolved with Trinidad becoming insulted when La Serna ac-
cused Respondent of “abuse” and of looking for any reason to
punish employees. Prieto even left the meeting to bring Diaz
into the meeting as it was becoming “ugly.” After Diaz entered
the room and asked questions, a dispute ensued where all the
participants stood up and raised their voices. La Serna told Trin-
idad that she was looking for any reason to punish employees
and that she was looking for the employees to have her removed
from the South San Francisco site. Trinidad remarked, “Well
before I leave, you will leave.” Diaz then asked La Serna and
Quintanilla to leave the meeting.
La Serna never used intemperate language, profanity, or
threats of violence but admitted to raising his voice. “The Board
has repeatedly held that merely speaking loudly or raising one’s
voice in the course of protected activity generally does not war-
rant a forfeiture of the Act’s protection.” Crowne Plaza LaGuar-
dia, 357 NLRB 1097, 1101; see Goya Foods, 356 NLRB 476,
478; Beverly Health & Rehabilitation Services, 346 NLRB 1319,
1323 (nature of the outburst weighed in favor of protection
whether employee told another employee to “mind [her] f–king
business” during grievance discussion); Prescott Industrial
Products Co., 205 NLRB 51, 51–52 (1973). In addition, the
Board uses an objective standard, rather than a subjective stand-
ard, to determine whether the conduct in question is threatening.
Plaza Auto Center, Inc., 360 NLRB No. 117, slip op. at 5 (2014).
La Serna’s conduct on March 26 did not forfeit the protection of
the Act. His conduct came nowhere close to the conduct the
Board has found to lose the Act’s protection. See Crowne Plaza
LaGuardia, supra (employees lose protection of the Act when
attempting to restrain a manager). The Board has generally
found that an employee’s behavior loses the protection of the Act
when engaged in egregious behavior, not the strong willed, ad-
vocacy behavior displayed by La Serna. Compare, e.g., Waste
Management of Arizona, 345 NLRB 1339 (2005) (employee
used profanity repeatedly and loudly before coworkers and other
witnesses, refused to move the discussion to a private location,
threatened the supervisor and refused to follow orders, losing
protection of the Act); Starbucks Coffee Co., 354 NLRB 876
(2009) (employee participated with group of people following
employer’s regional vice president at night after a union rally,
shouting threats, taunts and profane comments at him, losing
protection of the Act), adopted in 355 NLRB 636 (2010) enf.
denied in part, and remanded on other grounds 679 F.3d 70 (2d
Cir. 2012) decision on remand Starbucks Coffee Co., 360 NLRB
1168 (2014).
In sharp contrast to La Serna’s credited testimony, Trinidad
claimed that La Serna slammed his hand on the table, pushed
back his chair which hit the wall, stood up and started walking
towards Trinidad, yelling he would get rid of her. Trinidad then
claimed that she was in a corner of the conference room and
shouted an expletive. Diaz then came between them and pushed
La Serna out the door and Trinidad slammed the door closed. As
explained extensively in the findings of fact, I do not credit Trin-
idad’s testimony, but even if accepting Trinidad’s version of
events, La Serna’s conduct still would not lose protection of the
Act. The context of events is extremely important to keep in
mind. Prior to the meeting, the shop stewards including La Serna
had been actively complaining about Respondent, and
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
particularly Trinidad’s discipline of employees. The shop stew-
ards even filed a grievance seeking her removal. La Serna’s
statement that he was going to get rid of her should be interpreted
in such context, not that he intended to physically harm her. In
fact, Trinidad knew that La Serna would not physically harm her
since she attended a meeting later that evening, without the pres-
ence of anyone else, to discuss another employee’s discipline.
Trinidad’s complaint, which came a day later, claiming to fear
for her safety and worry about her job is simply unbelievable.
La Serna certainly has no supervisory role over Trinidad to be
able to direct her removal; he can only proceed through the par-
ties’ CBA to request such a change. In Kiewitt Power Construc-
tors Co., 355 NLRB 708, 710 (2010), enfd. 652 F.3d 22 (D.C.
Cir. 2011), an employee did not lose protection of the Act despite
angrily telling his supervisor that things could get “ugly” and he
“better bring [his] boxing gloves.”
Respondent cites a few cases in support of its position that La
Serna’s conduct under this Atlantic Steel factor loses the protec-
tion of the Act. None of the cases cited supports Respondent’s
argument. In Coca Cola Puerto Rico Bottlers, 362 NLRB 1047
(2015), the Board determined that a steward did not lose the
Act’s protection when he spoke to a supervisor, referring to a
past event, as he did not make the statement in the context of
ongoing violence and did not threaten future violence. Respond-
ent argues that La Serna’s threat to “get rid of” Trinidad was ag-
gressive in that he would end her employment or physically harm
her. I do not agree with Respondent. Again, the standard is an
objective standard. Under the totality of the circumstances, La
Serna clearly was referring to the grievance the Union filed seek-
ing to remove her from her job which is the only avenue La Serna
could possibly have to “end her employment.”
Respondent also cites to Public Service Co. of New Mexico,
364 NLRB No. 86 (2016), where the Board found that a union
steward lost the protection of the Act during an employee-man-
agement training meeting when he intentionally shut down the
meeting by inserting his own demands, not allowing others to
ask questions, refused to leave the meeting and after leaving and
returning, demanded the meeting end and the employees leave.
Again, that decision is distinguishable. In contrast, here La
Serna did not end the meeting but instead left after Diaz asked
him to leave. Moreover, the meeting was only to present Quin-
tanilla with her suspension notice and was not an investigatory
meeting or any other fact–gathering/information sharing meet-
ing. Thus, La Serna’s conduct on March 26 weighs in favor of
protection under the Act.
With regard to the fourth factor, provocation by employer’s
unfair labor practice, I do not find that this factor weighs in favor
of or against finding La Serna’s conduct unlawful. Initially,
Trinidad did nothing to provoke La Serna. She set forth the rea-
son for Quintanilla’s suspension, which is not alleged as an un-
fair labor practice in this complaint, which caused La Serna to
react negatively as his advocacy role expects. Trinidad then re-
acted to La Serna’s comments of the suspension being unfair and
his belief that she was trying to find anyway to punish employees
which would cause them to try to remove her. Trinidad became
defensive, and told La Serna that he would be gone from the
workplace before her.
In sum, I find that La Serna’s conduct on March 26 was not so
opprobrious as to warrant the loss of the Act’s protection. Thus,
because his actions were protected on March 26, Respondent vi-
olated Section 8(a)(3) and (1) of the Act when it suspended La
Serna.
Now turning to Respondent’s termination of La Serna, Re-
spondent terminated La Serna on April 23 for insubordination
when he returned to Genentech’s South San Francisco site after
being directed not to do so when he was suspended and for in-
subordination for his conduct toward Trinidad. As set forth
above, La Serna’s protected conduct towards Trinidad did not
lose the protection of the Act, and thus, his termination for such
conduct also violates the Act. See Spartan Plastics, 269 NLRB
546, 552 (1984) (finding no defense for employer to recite a
wrong by the discriminatee in responding to the action of the
employer which itself constituted a violation of law”).
Periolat, the decision maker, testified that even the insubordi-
nation violation for returning to the South San Francisco site af-
ter being directed not to do so, would have also resulted in ter-
mination. La Serna engaged in protected concerted activity
when he participated in the April 16 march. There is no evidence
that La Serna engaged in any conduct during this march that
would have lost him the protection of the Act. Moreover, the
very act of participating in the march is why Respondent disci-
plined him, not for any conduct during the march. I find that
Respondent acted in a determined manner to terminate La Serna,
and found any possible infraction to “pile on” its termination de-
cision. Thus, even terminating La Serna for his participation in
the April 16 march violates the Act. Under Burnup & Sims, Re-
spondent’s termination of La Serna violates Section 8(a)(1) and
(3) of the Act.
Respondent argues that La Serna’s participation in the April
16 march was unprotected as the march was not sanctioned by
the Union and La Serna violated its instructions not to return to
the South San Francisco campus without permission (R. BR. at
86–97). Respondent cites to Quantum Elec., Inc., 341 NLRB
1270, 1279 (2004), where employees who left work early to fa-
cilitate attendance at a union meeting were not considered to
have engaged in protected activity. However, here, La Serna,
along with other stewards, scheduled this meeting to continue
their protest against Respondent’s discipline of their co-workers
for 2 p.m., but specifically did not ask employees to walk off the
job or end work early to attend the meeting. The record does not
show that any employees were disciplined for doing as such, and
Respondent merely speculates that by scheduling the meeting at
2 p.m., La Serna sought to have employees walk off the job. In
fact, later Jedan clarified that Respondent understood there
would be no work stoppage. Moreover, the march does not ap-
pear to violate any CBA provision. Thus, the act of marching
was not unprotected.
Respondent also argues that La Serna was told he could not be
on the property which made his participation in the march un-
protected as he violated their instructions. However, as indicated
above, I find that these instructions were ambiguous. It should
be noted that La Serna did not enter Respondent’s buildings
without permission. He was granted permission on two occa-
sions: once to pick up his check and another time to attend a la-
bor-management meeting. On the third occasion, which is the
infraction referenced in his termination notice, he remained in
SBM SITE SERVICES, LLC 29
the public areas of the South San Francisco site and did not enter
any building. Thus, he did not violate their instructions which
were ambiguous.
In sum, under the Burnup & Sims analysis, Respondent vio-
lated Section 8(a)(1) and (3) of the Act when terminating La
Serna.
Respondent and the General Counsel, as an alternative theory,
argue that La Serna’s termination needs to be analyzed as a
mixed-motive situation.63 As established above, La Serna en-
gaged in well known union and protected concerted activity. I
further find that the General Counsel has established that La
Serna’s union and protected concerted activity was a “substantial
or motivating factor” in its decision to terminate La Serna. Re-
spondent knew about the shop stewards discontent with its recent
disciplinary actions. Respondent perceived La Serna’s fervent
engagement in union and protected concerted activity as an af-
front to Trinidad’s managerial authority which demonstrates an-
imus. Casino San Pablo, 361 NLRB 1212, 1214 (2014); Hawaii
Tribune–Herald, 356 NLRB 661, 680 (2011); Noble Metal Pro-
cessing, Inc., 346 NLRB 795, 800 (2006). Circumstantial evi-
dence supports an inference that Respondent knew that La Serna
was the driving force behind the written communications and in-
person meeting with employees, as well as the grievance request-
ing Trinidad’s removal. Respondent argues that La Serna par-
ticipated in marches in the past which did not result in discipline.
Simply because La Serna engaged in known union activity with-
out any violations of the Act in prior years does not mean that
animus cannot ever be proven.
Trinidad also spoke of La Serna’s efforts to remove her during
the March 26 meeting regarding Quintanilla. Only 4 days later,
Respondent suspended La Serna for not communicating respect-
fully with Trinidad, insubordination and violence in the work-
place. Thereafter, only one week after the April 16 march, Re-
spondent decided to terminate La Serna for his conduct toward
Trinidad during the March 26 meeting as well as his participation
during the April 16 march. Thus, the timing of events is suspi-
cious.
In addition, the proffered reason for the termination is suspect.
La Serna was treated differently from other employees. For

63 In a mixed-motive situation, the Board applies the burden-shifting
analysis set forth in Wright Line to determine whether an employee’s
discharge is unlawful thereby violating Section 8(a)(1) or 8(a)(3). 251
NLRB 1083 (1980), enfd on other grounds, 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). Thus, the General Counsel
must prove by a preponderance of the evidence that the employee’s pro-
tected activity was a motivating factor in discharging the employee. The
General Counsel’s evidence must show that the employee engaged in
union and/or protected activity, that the employer knew about the union
and/or protected activity, and that the employer harbored animus toward
the union and/or protected activity. Briar Crest Nursing Home, 333
NLRB 935, 936 (2001); Club Monte Carlo Corp., 280 NLRB 257, 261–
262 (1986), enfd. 821 F.2d 354 (6th Cir. 1987). If the General Counsel
successfully demonstrates that the protected activity was a motivating
factor for the discharge, the burden then shifts to the employer to show
that it would have discharged the employee even absent the employee’s
protected activity. Wright Line, supra at 1089; Briar Crest Nursing
Home, supra. An employer does not meet its burden merely by showing
that it had a legitimate business reason for its action. Rather, it must
example, Alcantara reported that she saw Lopez “driving around
building 43 and 48” the day she was suspended, April 1, and im-
mediately reported her observation to her supervisor (GC Exh.
206). However, Lopez was not terminated, in part, for such in-
fraction as was cited in La Serna’s suspension. Quintanilla at-
tended the April 7 labor–management meeting, after her suspen-
sion, was seen by Periolat, and not disciplined for her attendance.
Also, Respondent’s reasons for terminating La Serna shifted
during the course of events. Shifting explanations for adverse
employee actions is evidence of discriminatory intent as well as
pretext. Seminole Fire Protections, 306 NLRB 590, 592 (1992).
Periolat testified that La Serna was also terminated for providing
false information during the investigation, but La Serna’s termi-
nation document did not include that reason. The document
states: “Ch.2 EHB pg.14–15/Insubordination–returning to the
client site after suspension after directed not to re–enter site. (2)
CH.2 EHB pg. 16 Misconduct–Insubordination involving Sonia
Trinidad” (GC Exh. 35). It is clear from the record that La
Serna’s discharge was motivated by Respondent’s animus to-
wards his union and protected concerted activity, especially his
push to remove Trinidad from the workplace. Shifting explana-
tions by Respondent is another evidence of pretext.
Furthermore, Respondent cited to no other employees who
had been terminated for similar misconduct. However, the Gen-
eral Counsel showed that other employees had been issued lesser
discipline for insubordination (see GC Exh. 106, 137, 148). In
addition, Lopez and Quintanilla were not disciplined for return-
ing to the property after their suspensions.
As Respondent’s reasons for terminating La Serna are pre-
textual, even under a Wright Line analysis, Respondent violated
Section 8(a)(1) and (3) of the Act.64
Based on the foregoing, Respondent violated Section 8(a)(1)
and (3) of the Act when it suspended and terminated La Serna.
D. Respondent Violated Section 8(a)(1) and (3) of the Act when
Terminating Quintanilla
The General Counsel alleges that Respondent violated Section
8(a)(1) and (3) of the Act when it terminated Quintanilla on April
9. Respondent, on the other hand, argues that it lawfully
persuasively demonstrate that it would have taken the same action in the
absence of the protected conduct. See Boothwyn Fire Co. No. 1, 363
NLRB No. 191, slip op. at 7 (2016), citing authorities. If the evidence
establishes that the proffered reasons for the employer’s action are pre-
textual–i.e., either false or not actually relied upon–the employer fails by
definition to show that it would have taken the same action for those
reasons, absent the protected conduct. See Golden State Foods Corp.,
340 NLRB 382, 385 (2003), citing Limestone Apparel Corp., 255 NLRB
722 (1981).
64 The General Counsel advances a third theory that Respondent’s
instructions to La Serna to not return to Genentech’s property while he
was suspended, if assumed to be credited, are unlawful under the legal
principles set forth by the Board in Tri–County Medical Center, 222
NLRB 1089 (1976). The General Counsel further argues that since the
instructions to La Serna were unlawful, his resultant termination is also
unlawful under Continental Group, Inc., 357 NLRB 409 (2011). Since
Respondent unlawfully suspended and terminated La Serna under a
Burnup & Sims analysis, as well as under the alternate theory of Wright
Line, I find it unnecessary to discuss such a theory.
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
terminated Quintanilla (R. Br. at 79–103). Specifically, Re-
spondent argues that Quintanilla did not engage in protected con-
certed or union activity known by Respondent, and even if so,
she would have still been terminated. Quintanilla’s termination
will be analyzed under Wright Line.
1. Quintanilla engaged in union and protected, concerted
activity which was known to Respondent.
Although Quintanilla’s union and protected concerted activity
was not as extensive as La Serna, she too engaged in union and
protected concerted activity when she ran for shop steward in
March 2015. The Union announced the election a few days prior
and posted at the time clocks and bulletin boards the names of
employees’ names running for shop steward. Brodie shared the
information regarding the upcoming shop steward election with
Kahn on February 26. Brodie informed Kahn that he would let
him know the names of those employees running for shop stew-
ard once he became aware. Kahn, on cross-examination, admit-
ted that he knew the names of the employees running for shop
steward including Quintanilla prior to her suspension and termi-
nation. In addition, two days prior to her termination, on April
7, Quintanilla participated in a labor-management meeting at the
South San Francisco site which included Periolat, Emperador,
and Kahn. Thus, Quintanilla engaged in union and protected
concerted activity which was known to Respondent. Respond-
ent’s argument that Quintanilla did not engage in union and pro-
tected concerted activity is rejected along with its argument that
her actions were not known to Respondent, particularly Periolat.
It is well-established that a supervisor’s knowledge of protected
concerted activities and/or union activities is imputed to an em-
ployer in the absence of credible evidence to the contrary. See
State Plaza, Inc., 347 NLRB 755, 757 (2006); Dobbs Int’l Ser-
vices, 335 NLRB 972, 973 (2001). The credited evidence does
not support Respondent’s argument.
2. Respondent discriminatorily discharged Quintanilla.
The record is ripe with evidence of union animus against those
employees who advocated or supported the Union. Respondent
took every opportunity to shut down the shop stewards protesta-
tions against its conduct. Respondent even sought the aid of the
Union to stop these employees. Motivation of antiunion animus
may be inferred from the record as a whole, where an employer’s
proffered explanation is implausible or a combination of factors
circumstantially support such an inference. Union Tribune v.
NLRB, 1 F.3d 486, 490–492 (7th Cir. 1993). Simply because
Respondent did not discriminate against all the shop stewards
does not prove that Respondent had no antiunion animus. Even
without direct evidence, the Board may infer animus from all the
circumstances. Flour Daniel, Inc., 304 NLRB 970 (1991).
Respondent claims that Quintanilla was terminated because of
her false and misleading information related to a workplace in-
jury. While it is true that Quintanilla lied about when her work-
place injury occurred, Respondent’s decision to terminate Quin-
tanilla was excessive and pretextual.65 Respondent conducted an
“investigation” only after Quintanilla became a shop steward and

65 Respondent argues that Quintanilla’s credibility is destroyed by her
“false and fraudulent” claims against Respondent (R. Br. at 74). While
it is true that Quintanilla was not a truthful about her workplace injury,
participated in a labor-management relations meeting. This in-
vestigation only consisted of statements already known to Re-
spondent when it decided to suspend Quintanilla. A timeline of
events shows Respondent’s pretext. On March 5, Hawes re-
ported to management that Quintanilla was injured during his
shift but did not stop her work and report her injury immediately.
On March 6, Silva entered the injury into Respondent’s database.
Thereafter, on March 10, Respondent proposed a warning for
failing to report the injury timely. On March 11, Cazarez inves-
tigated Quintanilla’s injury by questioning her when it was sus-
pected that she may have been untruthful in her version of events.
At some unknown point, both Kahn and Trinidad spoke to Pe-
riolat for her advice; Periolat recommended suspension. Only
one day after the shop steward election and tense March 26 meet-
ing with Trinidad, Cazarez, La Serna, and Quintanilla to an-
nounce her suspension, Cazarez submitted a statement docu-
menting his March 11 conversation with Quintanilla. On April
7, the same day as the labor-management meeting, Silva and an-
other manager also submitted statements to Respondent regard-
ing Quintanilla’s workplace injury. Finally, on April 8, Ku-
ruvilla submitted a signed statement. With this documented ev-
idence, Periolat then decided to terminate Quintanilla for false
and misleading information. The timing of gathering evidence
is highly suspicious as all the evidence used by Respondent to
terminate Quintanilla were facts known to Respondent prior to
her suspension and which it relied upon in suspending her. Pe-
riolat did not question Quintanilla after her suspension nor did
she offer her the opportunity to retract her version of events,
which Respondent relies upon to prove it harbored no animus,
after the suspension. An employer’s failure to give an employee
the opportunity to explain the circumstances for which she is be-
ing disciplined or discharged support a finding of employer pre-
text. Diamond Electric Mfg. Corp., 346 NLRB 857, 861 (2006);
La Gloria Oil & Gas Co., 337 NLRB 1120, 1124 (2002). I agree
with the General Counsel in that it appears that Respondent sus-
pended and terminated Quintanilla for the same incident (GC Br.
at 69).
Further pretext is found in the fact that Respondent has not
disciplined any other employee to the same level as Quintanilla
for a similar infraction. Respondent’s handbook does contain a
provision which states that immediate termination may be issued
if an employee willfully falsifies or misrepresents information.
If Respondent had abided by its own policy, it would have im-
mediately terminated Quintanilla rather than suspending her for
the exact same facts in its decision to terminate. The suspension
notification states: “Falsifying information about the security in-
cident pertaining to work that occurred on March 5, 2015” (GC
Exh. 5a and 5b). The termination notification states: “Employee
provided false and misleading information related to workplace
injury” (GC Exh. 6). Thus, Respondent appeared willing to con-
sider lesser discipline but circumstantial evidence leads me to
conclude that Respondent decided to follow its handbook only
after learning and observing Quintanilla’s union and protected
concerted activity. In addition, the General Counsel set forth
the credited evidence shows that Respondent decided to terminate her for
her union and protected concerted activity.
SBM SITE SERVICES, LLC 31
numerous examples of employees who were given written warn-
ings and suspensions for similar falsification allegations. For ex-
ample, employee Rene Aguilar (Aguilar) signed cleaning logs
without completing the work, and submitted a false statement on
a disciplinary form (GC Exh. 106A and B, 107A). Aguilar only
received a warning and suspension for those violations.
As Respondent’s reasons for terminating Quintanilla are pre-
textual, Respondent violated Section 8(a)(1) and (3) of the Act.
Respondent cannot show that absent the union and protected
concerted activity it would have still terminated Quintanilla.66
E. Respondent did not violate the Act when suspending and
terminating Lopez
The General Counsel alleges that Respondent violated Section
8(a)(1) and (3) of the Act when it suspended and terminated
Lopez on April 1, and April 23, respectively. Respondent sus-
pended Lopez to investigate threat allegations, and ultimately
terminated her for threatening employees and property, refusing
to surrender her badge and dishonesty during an investigation.
Respondent argues that it lawfully suspended and terminated
Lopez, and the overwhelming evidence shows that even without
protected concerted activity, it would have still suspended and
terminated Lopez.
1. Lopez engaged in protected concerted activity which was
known to Respondent.
Lopez, although not a shop steward, participated in the March
24 Union meeting. During this meeting, Lopez openly and vo-
cally supported the shop stewards, especially La Serna, and be-
rated the leads for allegedly helping Respondent to discipline
their co-workers. As Lopez sought to preserve the rights of other
employees by speaking during the union meeting, loudly defend-
ing La Serna’s actions as a shop steward during this meeting, and
signing the petition, I find that Lopez engaged in protected, con-
certed activity which was known to Respondent. Further evi-
dence to support knowledge on the part of Respondent is the
statements submitted by Hernandez and Barrientos. Thus, Re-
spondent knew that Lopez participated in the Union meeting
which would be considered union and protected concerted activ-
ity.
Furthermore, the shop stewards created a flyer for an April 16
march which named Lopez as one of the employees that Re-
spondent sought to discipline unfairly; this flyer was seen by Re-
spondent on April 14. Lopez also signed a petition that the em-
ployees presented to Genentech. The petition indicated that the
employees were upset with Respondent’s treatment of them. It
is more likely than not that Respondent received a copy of the
petition, and that Respondent was aware of Lopez’ open support
of the shop stewards.
2. Lopez’ suspension and termination did not violate the Act.
In applying the Wright Line analysis, the General Counsel has
proven a prima facie case of discrimination. Lopez engaged in
protected concerted activity, which was known to Respondent.
Moreover, as established with La Serna and Quintanilla, Re-
spondent harbored animus towards the shop stewards and the

66 Because the General Counsel has established its burden of proof,
and Respondent failed when the burden shifted to it to justify its decision
supporting employees, including Lopez. Respondent pushed
back anytime the employees sought to meet to fight against Re-
spondent’s discipline of their co-workers. Thus, circumstantial
evidence infers animus in this instance. Electronic Data Systems
Corp., 305 NLRB 219 (1991).
The General Counsel argues that Respondent’s timing of the
suspension is suspect as it occurred one week after the March 24
meetings. I disagree. As soon as Respondent learned of the
statements made by Lopez, Respondent suspended her pending
an investigation. During this suspension meeting, she refused to
surrender her badge to Respondent, and would only give her
badge to Genentech’s security member. Thus, I do not finding
the timing to be suspect.
The General Counsel also argues that a “misunderstanding”
occurred among employees (GC Br. at 83). I disagree. Respond-
ent investigated Alcantara’s report, and then determined that
Lopez violated their zero tolerance policy regarding violence in
the workplace. Moreover, considering the totality of the circum-
stances with regarding to statements made to Rodriguez, Re-
spondent legitimately reasoned that Lopez could act on her
claims. The credited evidence shows that Lopez’ comments
were not taken out of context, and Lopez failed to clarify what
she actually said or what she possibly could have said to have
created the misunderstanding.
In addition, Respondent showed that it did not act inconsist-
ently. Respondent informed Lopez that she would be suspended
pending an investigation into the statements she made, and then
later terminated. The General Counsel claims that Respondent
acted inconsistently and proffers the matter concerning Miguel
Valera (Valera) as a comparator. Valera reported claims of har-
assment, and during the harassment investigation, opened Au-
gust 21, 2014, Respondent learned in mid–September 2014 of
alleged threats by Valera to other employees. In that situation
Respondent used Valera’s suspension period as a disciplinary
measure. Ultimately, Valera abandoned his job one month later
(GC Exh. 155). Here, Alcantara reported Lopez’ threats which
caused Respondent to suspend and terminate her. The difference
between the two matters is that Valera’s threats were discovered
well after they occurred whereas the threat Lopez posed was de-
pendent on how Respondent’s handled La Serna’s disciplinary
action. Thus, Respondent did not treat Lopez inconsistently.
Respondent also extensively investigated Lopez’ misconduct
and conducted the investigation and disciplinary procedures in
accordance with Respondent’s policy. Respondent interviewed
Lopez along with many other employee witnesses. Objectively,
the credited statements attributed to Lopez would not merely
cause an employee to feel “uncomfortable” or “annoyed” but ra-
ther constituted legitimate threats to the workplace and employ-
ees. See Stemilt Growers, Inc., 336 NLRB 987 (2001) (Board
found that the employer demonstrated it would have suspended
and discharged a pro-union supporter who deliberately pushed
his 80-pound packing cart toward another employee). Although
Barrientos and Hernandez submitted statements during the
course of Respondent’s investigation, the critical statements for
which Lopez was suspended and terminated was for her
to terminate Quintanilla, Respondent’s request for litigation expenses is
moot (R. Br. at 76–78).
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
statements to Alcantara. I also do not fault Respondent for not
reporting Lopez’ threats to the police, considering that it imme-
diately placed her on suspension pending its investigation.
Lopez’ threat was contingent on whether Respondent terminated
La Serna. La Serna was not suspended until March 30, and ter-
minated on April 23. That same day Respondent terminated
Lopez. Periolat, though, on April 7 did warn the shop stewards
that Lopez could not attend the April 7 meeting at the facility,
and warned her to leave the premises or security would be called.
In addition, Respondent included in its termination of Lopez that
she continued to audio record the suspension meeting despite be-
ing told not do so and affirming that she had.
Respondent only discussed the threat charge in its brief, and
failed to discuss the charges regarding refusing to surrender her
badge and dishonesty during an investigation. These incidents
occurred during the suspension meeting. As for the insubordi-
nation charge, Lopez did refuse to turn over her badge, and Re-
spondent needed Genentech to take the badge. I disagree with
the General Counsel’s characterization of Respondent’s action
as “acquiesce[ing]” to her request (GC Br. at 87). Rather Re-
spondent had no option other than to call security to take Lopez’
badge. Despite finding that Lopez engaged in protected con-
certed activity which was a motivating factor in her termination,
I find that her termination was lawful. Although there were no
real comparator employees, Respondent’s policy of a zero toler-
ance policy for threats in the workplace supports its decision to
terminate Lopez.
Respondent has proven that it would have suspended and ter-
minated Lopez even without her protected concerted activity.
The General Counsel has not established sufficient grounds to
reject Respondent’s credited evidence. See, e.g., Carrier Corp.,
336 NLRB 1141, 1141 fn. 3 (relying on credited testimony, the
employer established its affirmative Wright Line defense). As
Respondent argues, the facts here are similar to the facts in Wal–
mart Stores, Inc., 341 NLRB 796 (2004) where a pro-union em-
ployee threatened to blow up the premises. Similarly, Lopez
threatened to blow up the buildings if La Serna were terminated.
The most striking evidence is Lopez’ failure to explain what she
actually said or what could have been misinterpreted when she
was suspended; she waited until her suspension investigatory
meeting to provide an explanation for why Rodriguez may have
stated she had weapons which calls into question her credibility
and motivation. Moreover, she testified inconsistently about
whether she had ever discussed weapons in the workplace.
Therefore, I dismiss the General Counsel’s complaint allega-
tions that Respondent violated the Act when suspending and ter-
minating Lopez.
F. Respondent violated the Act when suspending and
termination Prieto
The General Counsel also argues that Prieto’s suspension and
termination on May 20 and June 20, respectively, violated Sec-
tion 8(a)(1) and (3) of the Act. Meanwhile, Respondent argues
that it did not violate the Act as the decision makers were not
aware of Prieto’s protected activity, Respondent harbored no an-
tiunion animus, and would have suspended and terminated Prieto
for falsification even without protected concerted activity.
1. Prieto engaged in protected concerted activity which was
well known to Respondent.
Again, the record is filled with evidence that Prieto engaged
in protected concerted activity for many years at Respondent as
a shop steward. Moreover, Respondent’s managers including
Kahn, Brodie, Periolat, Trinidad, and Emperador were well
aware of Prieto’s union activity as he participated in labor-man-
agement meeting with those managers. Therefore, Respondent’s
argument that Periolat and Emperador would not be aware of
who are the shop stewards because they work in a remote loca-
tion is false. Furthermore, Prieto worked with La Serna in 2015
to complain to the Union about Respondent’s increased disci-
pline of their co-workers. When the Union failed to address their
needs, they took matters into their own hands. Prieto also par-
ticipated in the grievance filed with Respondent, requesting Trin-
idad’s removal from the South San Francisco site. In February,
Brodie informed Kahn about this information he gathered.
Prieto also participated in the March 24 meetings with employ-
ees where they discussed the increased number of disciplinary
actions issued by Respondent. Prieto also represented employ-
ees in disciplinary actions including Quintanilla and La Serna.
Prieto ran again for shop steward, and Kahn knew about the elec-
tion and the names of the candidates from Brodie. Prieto also
participated in the April 16 march, speaking directly to Genen-
tech representatives, and signed the petition. Thus, Prieto en-
gaged in union and protected concerted activity which was well
known to Respondent.
2. Respondent unlawfully suspended and terminated Prieto.
Respondent suspended Prieto for falsification of the logbooks.
In terms of animus, the Board has long held that the timing of
adverse action shortly after an employee has engaged in pro-
tected activity may raise an inference of animus or unlawful mo-
tive. Disciplinary action only one month after engaging in
known protected concerted activity is sufficient to prove animus.
See Sheraton Anchorage, 363 NLRB No. 6 (2015) (finding that
an employee’s discharge which occurred 2 months after giving
testimony “substantially adverse” to his employer, suggests that
the motivation behind his termination was his protected activity,
his testimony). In addition, as explained within, Respondent ac-
tively worked to dissuade the shop stewards from rallying the
employees to protest disciplinary actions. Respondent even
reached out the Union to pressure the shop stewards to withdraw
their grievances and to threaten the employees with loss of their
side agreement.
Respondent’s investigation, while extensive, focused on irrel-
evant questioning where employees would certainly not admit to
signing the logbooks if they had not cleaned a room. Also, I
agree with the General Counsel’s argument that Respondent did
not seek to gather pertinent facts such as if there were any wit-
nesses to Lazo and Prieto’s conversation. A shoddy investigation
supports a conclusion of pretext.
Respondent also characterized Prieto’s actions as falsification
but the credited evidence shows that Prieto explained that there
was confusion on which areas he was to clean. Prieto clarified
immediately that he had not cleaned the rooms when questioned.
Prieto certainly is not completely without fault here. He did not
clean the rooms as assigned and altered his reasoning for why he
SBM SITE SERVICES, LLC 33
did not clean the rooms but reviewing the comparable punish-
ment Respondent issued for similar misconduct, the penalties
were not so severe. In one instance of discipline most directly
on point, an employee in 2013 failed to clean an area, and when
questioned she lied about cleaning the area. Respondent con-
fronted the employee with evidence to the contrary which she
then admitted (R. Exh. 90). Respondent terminated this em-
ployee. Another employee was given a verbal warning for fail-
ing to perform weekly cleaning (GC Exh. 110). An employee
was also issued a verbal warning for failing to clean a room in
the GMP area (GC Exh. 114). Respondent only suspended Man-
zanares when he failed to sign the pass through log and back-
dated a cleaning log (GC Exh. 118). Employees have also been
removed from GMP rather than terminated (GC Exh. 118). Re-
spondent’s claim that Prieto’s actions were different from other
disciplined employees is a distinction without a difference.
Kahn and Brodie tried to parse differences among allegations of
falsification (which they claim Prieto did), and backdating
(where the employee performs the task but forgets to sign the
logbook). Respondent also claims that since Periolat did not de-
cide all these cited instances of other disciplinary actions they
would not be proper comparators. I disagree. As the human re-
sources director, Periolat should have the information to ensure
that the discipline she recommends and decides remains con-
sistent. Respondent cites MEMC Electronic Material, Inc., 342
NLRB 1172, 1198 (2004) for its argument. However, Respond-
ent cites to the administrative law judge portion of the decision
to which no exception had been filed and thus, not of preceden-
tial value. When the Board has adopted all or even a portion of
a judge’s decision to which no exceptions have been filed, that
decision or portion is not binding precedent in other cases. Op-
erating Engineers Local 39 (Mark Hopkins Intercontinental Ho-
tel), 357 NLRB 1683 n. 1 (2011); and Trump Marina Associates
LLC, 354 NLRB 1027 fn. 2 (2009), reaffd. 344 NLRB 585
(2010), enfd. 435 Fed.Appx. 1 (D.C. Cir. 2011).
Having found that the General Counsel has proven Prieto’s
union and protected concerted activity was a motivating factor
for Respondent’s suspension and termination, the burden shifts
to Respondent to prove, as an affirmative defense, that it would
have taken the same action even in the absence of union activity.
Austal USA, LLC, 356 NLRB 363, 364 (2010). Respondent can-
not overcome its burden as the evidence shows that its decision
to suspend and terminate Prieto was motivated by his union and
protected concerted activity. Moreover, Respondent often gave
employees reduced disciplinary actions rather than suspensions
and termination. The credible evidence shows that Prieto was
immediately honest with Brodie when he informed him he had
not cleaned the rooms. Without a doubt, Prieto could have ex-
plained himself better but Respondent did not make consistent
decisions on its related disciplinary actions. Rather than accept-
ing Prieto’s confession when he admitted immediately that he
did not cleaned the rooms, Respondent claimed that he falsified
the logbooks. Respondent’s motivation to terminate Prieto ra-
ther than issuing a lesser disciplinary action seems driven by an-
tiunion sentiment.
I find that Respondent failed to prove that it would have taken
the same adverse actions in the absence of union and protected
concerted activity. Thus, Respondent violated Section 8(a)(1)
and (3) of the Act when suspending and terminating Prieto.
CONCLUSIONS OF LAW
1. Respondent, SBM Site Services, LLC, is an employer en-
gaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and the SEIU-USWW Local 1877 has been a labor
organization within the meaning of Section 2(5) of the Act.
2. Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(3) and (1) of the Act by suspending and dis-
charging employee Jose La Serna on March 30, 2015, and April
23, 2015, respectively, because of his participation in union and
protected concerted activities.
3. Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(3) and (1) of the Act by discharging em-
ployee Esther Quintanilla on April 9, 2015, because of her par-
ticipation in union and protected concerted activities.
4. Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(3) and (1) of the Act by suspending and dis-
charging employee Adilio Prieto on May 20, 2015, and June 20,
2015, respectively, because of his participation in union and pro-
tected concerted activities.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6. All other allegations in the complaint are dismissed.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the poli-
cies of the Act.
Respondent, having discriminatorily suspending and dis-
charging Jose La Serna, discharging Esther Quintanilla, and sus-
pending and discharging Adilio Prieto, shall be ordered to offer
them reinstatement to their former positions, or if those jobs no
longer exists, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges previ-
ously enjoyed, and to make them whole for any loss of earnings
and other benefits they may have suffered as a result of the dis-
crimination against them. As this violation involves cessation of
employment, the make whole remedy shall be computed on a
quarterly basis, less any interim earnings, as prescribed in F.W.
Woolworth Co., 90 NLRB 298 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010). In accordance with Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB 101 (2014), Respondent shall
compensate Jose La Serna, Esther Quintanilla, and Adilio Prieto
for the adverse tax consequences, if any, of receiving lump-sum
backpay awards. In addition, in accordance with AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016), Respondent shall,
within 21 days of the date the amount of backpay is fixed either
by agreement or Board order, submit and file with the Regional
Director for Region 20 a report allocating the backpay award to
the appropriate calendar year for said employees. The Regional
Director will then assume responsibility for transmission of the
report to the Social Security Administration at the appropriate
time and in the appropriate manner.
In accordance with King Soopers, supra, Respondent shall
compensate Jose La Serna, Esther Quintanilla, and Adilio Prieto
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for search-for-work and interim employment expenses regard-
less of whether those expenses exceed their interim earnings.
Search-for-work and interim employment expenses shall be cal-
culated separately from taxable net backpay, with interest at the
rate prescribed in New Horizons, supra, compounded daily as
prescribed in Kentucky River Medical Center, supra. Respond-
ent shall also be ordered to expunge from its files any and all
references to the discriminatory and unlawful suspension and
discharge of Jose La Serna, discharge of Esther Quintanilla, and
suspension and discharge of Adilio Prieto, and notify them in
writing that this has been done and that evidence of the discrim-
inatory and unlawful action will not be used against them in any
way.
The General Request also requests that I order Respondent to
reimburse Jose La Serna, Esther Quintanilla, and Adilio Prieto
for “consequential economic harm” incurred by them as a result
of Respondent’s unlawful conduct. Respondent opposes such a
request. After post-hearing briefs were filed, I granted the Gen-
eral Counsel’s request for supplemental briefing on this issue,
and thus find that the General Counsel did not waive its right to
make such a request as argued by Respondent. I also permitted
Respondent to file a responsive brief to the General Counsel’s
request for consequential damages. The Board does not tradi-
tionally provide remedies for consequential economic harm in
make-whole orders. See Operating Engineers Local 513 (Long
Const. Co.), 145 NLRB 554 (1963). While the General Counsel
acknowledges the Board’s typical remedies ordered, the General
Counsel urges that the discriminatees should be reimbursed for
consequential economic harm if so shown. Both the General
Counsel and Respondent thoroughly briefed the issue, which the
Board may consider. However, at this stage in the proceedings,
I must follow Board precedent, cannot order such a remedy, and
deny the General Counsel’s request. Pathmark Stores, Inc., 342
NLRB 378, 378 fn. 1 (2004); Waco, Inc., 273 NLRB 746, 749
fn. 14 (1984).
Respondent argues that the doctrine of after-acquired evi-
dence bars Jose La Serna from seeking a make-whole remedy
(R. Br at 97–100). The Board has held that if an employer satis-
fies its burden of proving that a discriminate engaged in unpro-
tected conduct for which the employer would have discharged
any employee, reinstatement is not ordered and backpay is ter-
minated on the date the employer first learned of the misconduct.
Tel Data Corp., 315 NLRB 364, 367 (1994), reversed in part on
other grounds, 90 F.3d 1195 (6th Cir. 1996); Marshall Dublin
Poultry Co., 310 NLRB 68, 69–70 (1993), reversed in part on
other grounds, 39 F.3d 1312 (5th Cir. 1994); John Cuneo, Inc.,
298 NLRB 856, 856–857 (1990). The Board follows this rule
concerning after–acquired evidence of employee misconduct to
“balance [its] responsibility to remedy the Respondent’s unfair
labor practice against the public interest in not condoning” the
discriminatee’s misconduct. John Cuneo, Inc., supra at 856. The
burden of proof is on the employer. Id.
At the hearing, Jose La Serna denied being self-employed,
cleaning buildings, while he was working for Respondent (Tr.

67 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
259–260). However, during a July 5, 2016 deposition in an un-
related matter, Jose La Serna initially testified he had been in
business for the 2 prior years, intermittently, cleaning (Tr. 260–
262). Jose La Serna then confusingly testified during this depo-
sition that his cleaning business began in August 2016, but de-
nied that he performed janitorial work; Jose La Serna must have
misspoken as he was speaking about the future (Tr. 263–264).
Jose La Serna also testified he had been in the sales and flea mar-
ket business (Tr. 264, 352). Later, Jose La Serna clarified during
this deposition that he began his cleaning business to clean kitch-
ens after he was terminated in August 2015 (Tr. 353, 355–356).
I find that Jose La Serna’s testimony regarding his work, clean-
ing buildings, while working at Respondent was not clear. As I
found Jose La Serna to be a generally credible witness as set forth
above, I credit his testimony at the hearing that he did not work
for a competing business while employed by Respondent which
would have been a violation of its rules. Respondent failed to
adduce sufficient evidence to convince me that it has meet its
burden of proof. Therefore, I deny Respondent’s request to not
reinstate Jose La Serna and not award him full backpay.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended:67
ORDER
Respondent, SBM Site Services, LLC, McClellan, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending, discharging or otherwise discriminating
against employees because they engage in union or protected
concerted activities;
(b) In any like or related manner, restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Jose La
Serna, Esther Quintanilla, and Adilio Prieto full reinstatement to
their former jobs, or if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make whole Jose La Serna, Esther Quintanilla, and Adilio
Prieto, for any loss of earnings and other benefits suffered as a
result of their unlawful suspensions and/or discharges against
them, including any search-for-work and interim employment
expenses, in the manner set forth in the remedy section of this
decision.
(c) Compensate Jose La Serna, Esther Quintanilla, and Adilio
Prieto for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file with the Regional Director of
Region 20, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years for Jose La
Serna, Esther Quintanilla and Adilio Prieto.
(d) Within 14 days from the date of this Order, remove from
Board and all objections to them shall be deemed waived for all purposes
due under the terms of this Order.
SBM SITE SERVICES, LLC 35
its files any reference to the unlawful suspension and discharge
of Jose La Serna, discharge of Esther Quintanilla and suspension
and discharge of Adilio Prieto and within 3 days thereafter, no-
tify said employees in writing that this has been done and that
the discharge will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide a reasonable place designated by the Board or its
agents, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records, in-
cluding electronic copies of such records if stored in electronic
form, necessary to analyze the amount of backpay due under the
terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in South San Francisco, California, copies of the attached
notice marked “Appendix.”68 Copies of the notice, on forms pro-
vided by the Regional Director for Region 20, after being signed
by Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to employees are
customarily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. If Respondent has gone out of
business or closed the facility involved in these proceedings, Re-
spondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees em-
ployed by Respondent at any time since March 30, 2015.
(g) Within 21 days after service by the region, file with the
Regional Director for Region 20 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply.
Dated, Washington, D.C. October 5, 2017

68 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."