Armour- Eckrich Meats LLC

National Labor Relations Board - Administrative Judge Opinions

Aug 4, 2014

14-CA-117650 (N.L.R.B. Aug. 4, 2014)

JD(NY)–33–14
Omaha, NE
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ARMOUR-ECKRICH MEATS, LLC
and Case No. 14-CA-117650
YESSICA Y. PANAMENO, An Individual
Michael Werner, Esq., Counsel for the General Counsel.
Kurt Larkin, Esq. and Austin Brayley, Esq., Hunton & Williams, LLP, Counsel for Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on June 24,
2014 in Omaha, Nebraska. The Complaint herein, which issued on February 28, 2014, was
based upon an unfair labor practice charge and an amended charge that were filed by Yessica
Panameno on November 22, 20131 and February 21, 2014. The Complaint alleges that Armour-
Eckrich Meats LLC, herein called the Respondent, by its supervisor and agent Gregory
Sarceno, threatened an employee with discharge because of the employee’s union activities,
and that on about November 1 it suspended Panameno and on about November 13 discharged
her, because she engaged in union and other concerted activities, in violation of Section 8(a)(1)
and (3) of the Act.
I. Jurisdiction and Labor Organization Status
Respondent admits, and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act and that United Food and Commercial
Workers’ Union, Local 293, herein called the Union, has been a labor organization within the
meaning of Section 2(5) of the Act.
II. Background
Pursuant to a Joint Stipulation of Facts as well as accompanying exhibits, the evidence
establishes that the Union is the collective bargaining representative of a bargaining unit at the
Respondent’s facility in Omaha and that Panameno, who was employed by the Respondent
beginning in October 2000, was a member of that bargaining unit. The most recent collective
bargaining agreement covering this unit is effective for the period August 7, 2011 through
August 5, 2015. Panameno was discharged on October 31, 2012 for allegedly telling a co-
worker that a bomb was going to explode at the plant, a violation of the Respondent’s work rules
regarding workplace violence. The Union filed a grievance contesting Panameno’s discharge
and the parties resolved this grievance prior to the arbitration with a Last Chance Agreement
dated July 18, herein called the Agreement, and Panameno returned to work on August 5 where
she remained until she was suspended and discharged on November 1 and November 13. After
reciting the facts that lead to her discharge on October 31, 2012, the Agreement states:

1 Unless stated otherwise, all dates referred to herein relate to the year 2013.
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However, in recognition of your previous service to Armour-Eckrich, and in consideration
for your promises made below, the Company is willing to rescind your termination and
allow your return to employment, under the last chance conditions set forth below.
The agreement provides that she will return to work with full seniority and receive $15,000 back
pay for her time out of work. In return, she agreed to acknowledge, in writing, the Respondent’s
Code of Business Conduct and Ethics Policy, its Workplace Violence Policy, and its Work Rules
and Plant Critical Rules. The Agreement further states that should she violate any of these rules
within one year from the date of the Agreement, her employment will be terminated immediately.
Determination regarding whether any such violation has occurred, or whether you have
behaved in a manner that creates or contributes to a hostile working environment, will be
in the sole discretion of the Company. However, any decision by the Company that you
have violated the terms of this Agreement must be based on credible evidence.
The Agreement also states that if she is terminated for violating the Agreement, the termination
cannot be appealed, grieved or arbitrated under any grievance, arbitration or appeal procedure
that would otherwise be available under the existing contract.
III. October 31
Panameno, who operated a pepperoni slicing machine at the Respondent’s facility, was
suspended on November 1 and discharged on November 13 for, Respondent defends, not
paying attention to the slicing procedure, and keeping her machine running while it was
improperly slicing the pepperoni, requiring a large amount of the product to be reworked.
Counsel for the General Counsel alleges that this was a pretext and that the real reason for her
suspension and discharge was that the Respondent was angry that she grieved her prior
termination with the Union and was reinstated pursuant to the Agreement.
Panameno was employed as a slicer on the Tiromat 3 line at the facility. There are
usually four or five employees on each production line. The pepperoni log is placed on the
machine where it is sliced into small pieces and goes to a conveyor belt where it is packaged,
boxed, placed on a pallet and sent to the shipping department. On the day in question a large
amount of the product had to be reworked because it was not sliced properly and included
numerous “pieces and tails.” The Respondent does not allege that Panameno was responsible
for the poor quality of the slices. Rather, it argues that she should have seen the problem and
should have immediately shut down the slicing machine in order to minimize the out of spec
product being produced. Instead, the machine continued to produce improperly sliced pepperoni
for about fifteen minutes.
On October 31, Panameno and the other employees on the Tiromat 3 line took their
lunch break from 11:15 to 11:45. She testified that the “problem started at 11:55.” At that time
she noticed that the pepperoni slices were coming out with a thread, or what the company calls
tails. She immediately stopped the machine and unsuccessfully attempted to sharpen the slicing
blade and determined that it was a mechanical problem that she could not fix and went to look
for somebody who could fix it. At the same time, Dalila Arevalo, one of the other employees on
her line, told her of the problem, and she told her that she already saw it and was looking for
someone to repair it. She could not locate anybody in the supervisor’s office or the mechanics’
office, but she did locate a mechanic on one of the other production lines. She could not
remember his name, only that he was “a big guy” and he told her that the procedure is for her to
contact her supervisor, who then calls the mechanic to repair the machine. She then saw Chanh
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Sisavanh, who is employed as a Quality Assurance Tech by the Respondent and Panameno
told her of the problem with the slicer and she testified that Sisavanh told her that the machine
had been a problem since the prior day and that she should not turn on the machine because
everyone knew that it was broken.2 Sisavanh testified that on the prior day she had told
Panameno that there was a problem with the slicer: “Not that day. It was the day before.”
Charles Hinsley, who is a Union steward, was the operator for the Tiromat 3 line that day, and
Gregory Sarceno was her supervisor, but she testified that she did not see either of them at the
time to report the problem.
Sisavanh testified that she makes regular checks on the slicing machines for slicer
count, diameter and temperature and at 11:59 on the day in question when she went to
Panameno’s machine it was still operating and she observed that the product was “out of spec,”
meaning that it was cut in the form of a triangle and was moving down the line in front of
Panameno. When she previously checked the slicer earlier that day it was operating properly.
When Sisavanh saw this she told Panameno to stop the machine and asked her why she was
still operating the machine, but could not recollect if Panameno responded. Sisavanh then went
to the dock to retrieve the pallets containing the sliced pepperoni because some of them would
be out of spec, and she put a pallet and a half, one hundred thirty nine cases, on hold pending
an inspection. She then called Hinsley and Sarceno to come to the machine to make them
aware of the problem and called a mechanic to fix the problem. Her testimony about her
inspection of these cases is not very clear as to whether she inspected all of them, all of them
randomly, or just some of the cases that she had placed on hold to determine if they were
acceptable or had to be reworked. Of the partial pallet of thirty nine boxes, she testified that they
were all bad, although it is not clear what her inspection of the full pallet revealed. After the
mechanic completed fixing the situation at about 12:15, Sisavanh again asked Panameno why
she was running the machine after she saw the problem, but she never answered.
Hinsley testified that on October 31 he was covering Tiromat 3, where his responsibility
was to see that they were “running a good product.” He first learned of the problem from
Arevalo, but he could not understand what she was saying, but then Sisavanh met him at 11:54
and told him that the machine was producing out of spec products and Sisavanh showed them
to him. Hinsley then called Steve Shank, a mechanic, to fix the problem. He testified that he has
worked as a slicer operator and it is the slicer operator’s responsibility to make sure that out of
spec product is not sent through the line and packaged. Once Shank sharpened the slicing
blade, production resumed at about 12:15.
Sarceno testified that he learned of the problem from Sisavanh, who called him on the
radio and told him to go to the Tiromat 3 line. When he arrived, she told him that the packages
of pepperoni contained a lot of ends and pieces and that she was putting the line on hold. He
then asked Panameno what happened and she said, “Nothing.” He then saw Hinsley, and
asked him what happened, and Hinsley said that he had not been told anything, and Sarceno
said that they would have to examine the packages to determine what to do with them. He then
called his superior, Mike Larrison, Operations Manager, and told him about the situation. He
testified that the slicer operator is primarily responsible for being certain that a quality product is
produced: “Because that person is right there.”
Larrison testified that the slicer’s obligation includes loading the pepperoni logs on the
machine, carefully monitoring the machine and raking off the ends and pieces3 into the rework

2 Counsel for the Respondent objected to this as hearsay and it is not taken for the truth.
3 The first and last slice of the logs are not used because one has a rounded end and one
Continued
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tub. When out of spec products are produced they are “reworked” in order to get the meat back
into the system. With pepperoni, it is reground, gets added in at two percent of the batch and
then returns to the system. That is what they had to do with the out of spec pepperoni produced
by Panameno’s machine on October 31. The slicer has a red on and off switch that should be
used by the employee if there is any problem requiring that the machine stop production
temporarily. In addition, there is a foot pedal that can be employed to slow the machine in order
to rake off pieces into the rework bin. After the pepperoni goes through the slicer it goes to a
shaker table where the smaller products fall through for rework. Originally, one hundred thirty
nine cases of pepperoni, or 1,390 pounds were placed on hold, but after inspection, it was found
that one hundred thirty two did not include any “bad product” and were shipped, while seven
boxes had to be reground and reworked and this process was completed on November 6. He
testified that although the Respondent was never able to determine what caused the product to
be out of spec, “The one thing we do know is that the product should have never gotten down
the line into the package to begin with.” He testified that it wasn’t only the downtime that this
mistake cost; rather the Respondent needs to be certain that they are producing and shipping
the best product: “…we are not the cheapest…our pepperoni is very expensive and the only
way we can keep our customers is by having good quality go out…” After reviewing this
incident, Larrison ordered an investigation of the matter to determine who was responsible.
IV. The Investigation
Linda Lough, Respondent’s HR Manager, testified that she first learned of the October
31 incident from telephone conversations with Larrison and Sarceno. She began her
investigation by meeting on the following day with Panameno, Sarceno, Nubia Zepeda, an HR
Coordinator and translator, and Hinsley, the Union steward, who was there at her request. At
the start of the meeting she told Panameno that there was a problem with her work on the prior
day that resulted in one hundred thirty nine cases being placed on hold. She asked Panameno if
she was aware of that happening and she said that she was, but that she had told Hinsley about
it. Lough asked Hinsley if he knew about it as stated by Panameno and he said that he didn’t,
that it was Sisavanh who told him of the problem. At the conclusion of the meeting she gave
Panameno a Disciplinary Action form stating that she was suspended pending an investigation
of the prior day’s incident. This is a normal procedure employed by the Respondent. If the
investigation establishes that the employee was not at fault, he/she is reinstated with back pay.
During her subsequent investigation, Lough obtained written statements from Sisavanh, Arevalo
and Hinsley. She asked each individually if they would be willing to give her a written statement
of the events of October 31, they each agreed, and she met individually with them while they
prepared their statements. Sisavanh’s written statement briefly states what she testified to as
described above. Arevalo, who did not testify, gave a handwritten statement that is difficult to
understand. According to Lough’s notes (which appear to match the handwritten statement),
Arevalo stated that she noticed the pieces and tails coming from Panameno’s slicer, but that it
was prior to the 11:15 to 11:45 break, and she tried to tell Hinsley about the problem, but he
didn’t seem to understand and Panameno told her that she knew about it and that is why she
stopped the machine. Hinsley’s statement states that he learned of the problem after the lunch
break from Sisavanh and that he got Shank to sharpen the blade; Panameno never told him that
there as a problem. At the conclusion of her investigation Lough forwarded her summary of the
investigation to the corporate HR office together with the statements that she had obtained. Her
summary states that in her November 1 interview with Panameno, she asked her if she knew
that there was a problem with the product coming from the slicer, and she said that she did, but
that she told Hinsley when she saw it. Lough asked Hinsley if Panameno told him of the
_________________________
has a pointed end, and they have to be reworked.
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problem, and he said that she didn’t; Sisavanh did. Lough asked Panameno if she was watching
the meat and she said that she checked it every fifteen minutes; Sarceno told her that she
should have been checking it all the time.
Lough testified that as part of her investigation he reviewed company documents
involving Tiromat 3, including the Acceptable Quality Limit Inspection Form for October 31. This
form states that Sisavanh and Hinsley inspected the pepperoni produced by Tiromat 3 at 10:53
and 11:13, prior to the break that day, and that at those times there were no problems with the
product. In addition, on either November 1 or 2, Sarceno brought her two bags of the out of
spec pepperoni produced by Tiromat 3 on October 31.
Panameno testified that she was called to Lough’s office at 8 a.m. on November 1;
Sarceno, Zapeda, Lough and Larrison were there as well. Lough said that she needed to talk to
her, and Panameno said that she wanted a representative that spoke English and Spanish so
that she could understand what was being said, but Lough told her that she did not have the
right to decide or to pick a steward; that Lough would pick the steward that she wanted. After
that, “I stayed quiet.” The next thing was that Lough “…said that I was suspended or let go
because I had violated a rule.” Lough then said that she had broken a caliper, which measures
the meat.4 She next testified:
Mr. Chucky [Hinsley] asked…”What was the motivation?” And Ms. Linda [Lough] said
that I signed some papers, and Mr. Chucky said, “Show me them,” and she showed
them to him. And Mr. Chucky turned and looked at me in the face, and that is all that
happened.
She testified that at the conclusion of the meeting Lough told her that she was terminated:
A Yes, she confused me and I asked her if I was suspended or terminated.
Q And you said yesterday that she said that you were terminated.
A That I had to bring my stuff from the locker and I had to go.
Panameno was then showed the Disciplinary Action dated November 1, which states that it is a
suspension pending investigation. She was asked if she was given this document during the
meeting and she testified that it was given to Hinsley, not to her. When it was pointed out to her
that next to her signature line, it states, “refused to sign” she testified:
A Yes, because I didn’t agree.
Q So she did hand you the document?
A No, she didn’t give it to me; she gave it to Chucky.
After Panameno testified, Lough returned to testify that she never stated at the meeting that
Panameno did not have a right to have a different steward, nor did she say that she would be
the person who decided who her steward would be.
Hinsley testified that he attended the meeting in Lough’s office on November 1; he was

4 Respondent states that this did not contribute to the decision to discharge Panameno.
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asked to attend by Sarceno. His recollection of the meeting is vague. All he could recollect was
that Lough told Panameno that she was being disciplined and sent home pending a further
investigation. He cannot remember if Larrison was at the meeting and is unaware of whether
Panameno requested a different steward at the meeting. He does not remember Lough saying
anything to Panameno about her right, or lack of right, to choose a steward, and does not recall
Panameno stating at the meeting that she attempted to tell him of the problem with the slicer.
After the meeting he was asked to write a statement as to what occurred on October 31, and he
did prepare such a statement, on his own.
Sarceno attended the November 1 meeting with Lough, Zepeda, Panameno and Hinsley
and testified that at the meeting, Lough asked what occurred on the prior day and asked
Panameno how often she checks the product, and Panameno said every fifteen minutes.
Sarceno then said that she should be checking all the time to be sure that the product is coming
out properly. At the conclusion of the meeting, Lough told her that she was going to be sent
home pending a further investigation. He testified that at this meeting Lough never said that she
had no right to pick her steward, or that Lough would decide who the steward would be. In
addition, Lough never told her at that meeting that she was fired. After the meeting, Lough
asked him to obtain statements about the prior day’s incident from Sisavanh and Hinsley, and
he also provided a statement of his own, but did not participate in the decision to discharge
Panameno.
At the conclusion of her investigation, there was one conflict that Lough had to
determine and that was Arevalo’s statement that she notified Hinsley about the problem before
the lunch break on October 31. This statement was not supported by any other statement, and
is contradicted by the fact that Hinsley and Sisavanh inspected the products at 11:13 and found
that they were good quality. As their statements contradicted Arevalo’s, she did not credit
Aravelo’s statement and found that Sisavanh stopped the line at 11:59. She then met with
Larrison and Brian Green, Respondent’s Director of Manufacturing, and determined that
Panameno’s poor performance on October 31 was a valid reason for discharging her pursuant
to the terms of the Last Chance Agreement, and she was notified of the discharge on November
13. Although Sarceno participated in the investigation, he did not participate in the decision to
discharge Panameno.
Larrison read the statements that Lough had obtained, as well as her notes and they
agreed that they would forward a recommendation to the Respondent’s corporate office that
Panameno be discharged. The only conflict in the investigation was Arevalo’s statement placing
the time at before the lunch break. However, when he saw that Sisavanh and Hinsley had
approved the products at that time, and that their statements stated that the problem began
after the lunch break, he discredited her statement.
V. Additional Facts
Lough testified that the Union has represented certain of the Respondent’s employees
for a period of time before she began her employment with the Respondent, four and a half
years ago. She described it as “…a very good relationship. They…of course are the advocates
for the employees, which they should be, but we get along very well.” She was not angry or
upset with Panameno or the Union for grieving her discharge in October 2012 and she was
involved in the pre-arbitration settlement that brought Panameno back to work pursuant to the
Last Chance Agreement. She testified that the Respondent agreed to this because of the
uncertainties of arbitrations and the fact that Panameno was a long term employee and the Last
Chance Agreement would give her another chance. After the Agreement was signed, Lough
met with managers and supervisors in July and told them that Panameno was to be treated the
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same as all other employees and was not to be harassed or treated poorly in any way and she
was to be notified if she was treated poorly. After Panameno returned to work on August 5,
neither she, nor anyone else in management, to her knowledge, instructed supervisors to
monitor Panameno more closely than other employees. Larrison testified that although he was
not involved in the decision to reinstate Panameno, he was “neutral” about the decision and was
“…in a way happy, because I was getting a qualified Slicer Operator back that is an employee
that is not easy to train. It takes you up to ninety days, sometimes up to six months to get a
Slicer Operator to be totally up to speed…” At a meeting in July with upper management and
supervisors, they were told that there was to be no retaliation to any employee returning to
work. Sarceno testified that he was not involved in the decision to settle the arbitration and
return Panameno to work, but he was not unhappy that the case had been settled in that
manner. Lough directed all supervisors that there was to be no retaliation with any employee
returning to work, and that Panameno was not to be monitored closely after she returned.
Green testified that in July, he and Lough addressed the management at the facility and told
them that there was to be no retaliation toward Panameno.
The Respondent introduced evidence of another Last Chance Agreement with Daniel
Anderson. He was suspended on November 26, 2012 for insubordination toward a supervisor ,
and in consideration of “his tenure with the Company,” the parties entered into a Last Chance
Agreement dated November 30, 2012 which provided that he would be returned to work and as
long as he did not violate any policies regarding insubordination during the following twelve
months, he would retain his employment. Lough testified that the Respondent agreed to this
after the Union grieved the termination, and Anderson completed the twelve month period
without incident and is still employed by the Respondent. In addition, on January 15, the
Respondent entered into a Last Chance Agreement with Hugo Salazar, who had been
discharged on January 4 for violation of certain food safety regulations. At the Union’s request
the Respondent agreed to a Last Chance agreement for him similar to Panameno’s, but without
back pay. On March 19, it was determined that he had again violated food safety regulations
and he was discharged pursuant to the Agreement. Respondent introduced into evidence forty
six Disciplinary Actions given to employees, including one each to Panameno, Hinsley and
Sisavanh, between 2011 and 2013. Finally, Lough testified that in the five year period preceding
Panameno’s termination, the Respondent, as part of a settlement with the Union, mitigated the
terms of discipline in seventeen cases, and fourteen of these employees are currently employed
at the facility, although these seventeen situations did not involve Last Chance Agreements.
VI. Sarceno and Panameno
The Complaint alleges that the Respondent, by Sarceno, threatened an employee with
discharge because of her Union activities. Panameno testified that after she returned to work
pursuant to the terms of the Agreement, Sarceno was “aggressive, violent and very
discriminatory” toward her, and everything that she did was bad. At a meeting on August 6,
apparently attended by a steward who spoke English and Spanish, he told her that her voice
and laugh bothered people and that she looked like a witch. In addition, on August 26, Sarceno
came to her work station and asked her why meat was thrown on the floor and she said that she
didn’t know. He slammed the door covering the blade, walked away and returned a few minutes
later and took pictures of the area. He then put his hand on her face, followed her as she walked
to the ladies’ room, and told her, “I will get you out because I will get you out, little Honduran.”5

5 Panameno filed a charge with the Nebraska Equal Opportunity Commission on December
13 alleging that she was discriminated against due to her national origin (she is Honduran). This
charge was dismissed.
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She also testified that in October 2012 she saw Sarceno harassing another employee, “Sylvia,”
and, “After that the persecution started and he started making things up.” Hinsley testified that
he never saw Sarceno threaten, harass or use offensive language with Panameno, nor did he
hear Sarceno making negative comments about the Union. Sisavanh also testified that she
never witnessed Sarceno making any threatening comments to Panameno, or make any
negative comments about the Union or her Union activity.
Sarceno testified that he was aware that Panameno was fired in 2012, that the Union
grieved the discharge and that she was returned to work in July pursuant to the Agreement. He
was not involved in the decision that resolved the matter and was not mad that the Respondent
had settled the case by bringing her back. Shortly after her return, Lough instructed all the
managers and supervisors that there was to be no retaliation of her and Lough never told him to
monitor her work more closely after she returned to work. Further, he never said that he would
find a way to get rid of her, nor did he make any disparaging remarks about her Honduran
ethnicity. As regards the August 26 incident that Panameno testified about, he testified that on
that day the lady who cleaned the floor told him that there was an excessive amount of meat on
the floor opposite the slicer. He went to look at it and saw the meat on the floor and asked
Panameno, “What happened?” and she said, “Everything is okay.” He then went to the office to
get a camera to photograph the meat on the floor, which is a normal procedure if an employee
is not doing the work correctly, or if the machine is not operating as it should, but he did not
report her for this situation. He testified as well, that he never said that her laugh was offensive
and offended people, and that it looked like a witch.
VII. Analysis
The initial allegation is that Sarceno threatened Panameno with discharge because of
her Union activities. The sole Union activity herein is the Union’s action in getting her reinstated
pursuant to the Agreement and there is no evidence that Sarceno threatened her because of
that. Rather, the only threat that he allegedly made to her was to get her out because she was
Honduran, and this was the basis of her charge with the Nebraska Equal Opportunity
Commission, which charge was dismissed. Even if Sarceno made this statement to her, as
there is no evidence that he threatened her because she returned to work pursuant to the
Agreement, I recommend that this Section 8(a)(1) allegation be dismissed.
The principal allegations are that Panameno was suspended on November 1 and
discharged on November 13 because of her Union activities. Under Wright Line, 251 NLRB
1083 (1980), the initial inquiry is whether Counsel for the General Counsel has made a prima
facie showing sufficient to support the inference that protected conduct was a “motivating factor”
in Respondent’s decision. If that has been established, the burden then shifts to the Respondent
to establish that it would have taken the same action even in the absence of the protected
conduct.
The sole alleged protected conduct herein was the Union’s action in grieving
Panameno’s discharge and getting her returned to work pursuant to the Agreement, which
provides that she was to be reinstated and given $15,000 backpay, but that if she violated any
plant rule within one year, she could be terminated immediately, and this determination was to
be “in the sole discretion of the Company.” There is no evidence that the Respondent was angry
with her because of this settlement or that it decided to look for an excuse to fire her again,
because of this settlement, or that it suspended and then discharged her in retaliation for being
reinstated pursuant to the Agreement. Rather, the evidence establishes that it was her
responsibility to turn off the machine when she observed, or should have observed, the poor
quality product that it was producing. For whatever reason, she did not do so and let it continue
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for about fourteen minutes, resulting in product that had to be reworked. I make these findings
even though there were minor inconsistencies in the testimony of both Sisavanh (the extent of
her examination of the one hundred thirty nine cases) and Sarceno (the amount of time that the
slicer was down). The only evidence of animus was Panameno’s testimony that Sarceno said
that he would get rid of her, “you little Honduran.” I need not make a credibility finding as to
whether this statement was made (although the Nebraska EEO apparently did not credit it)
because I credit the testimony of the Respondent’s witnesses that Sarceno did not participate in
the decision to suspend and then fire her on November 1 and November 13.6 Further, in a
similar situation, the evidence establishes that Anderson was reinstated pursuant to an
Agreement in 2012 and is still employed by the Respondent a year and a half later, and that the
Respondent has mitigated the discipline of numerous other employees without any obvious
animus, leaving unanswered the question, why they were angry with Panameno for returning to
work pursuant to the Agreement, and not Anderson and the others.
As Counsel for the General Counsel has not sustained his initial burden under Wright
Line, I recommend that the Complaint be dismissed in its entirety.
Conclusions of Law
1. The Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. United Food and Commercial Workers’ Union Local 293 has been a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a)(1) and (3) of the Act as alleged in the
Complaint.
On these findings of fact, conclusions of law and based upon the entire record, I hereby
issue the following recommended7
ORDER
It is recommended that the Complaint be dismissed in its entirety.
Dated, Washington, D.C. August 4, 2014
__________________________________
Joel P. Biblowitz
Administrative Law Judge

6 I did not find Panameno’s testimony about the November 1 meeting credible. She testified
that Lough told her that she was terminated, yet she admitted that she refused to sign (and
therefore obviously saw) the suspension pending investigation at the meeting. Further, I do not
credit her testimony that Lough told her that she did not have the right to choose a steward, that
she would pick the steward that she (Lough) wanted.
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.