Order Filed: July 15, 2015
Submitted February 12, 2015.
Petition for Review of an Order of the National Labor Relations Board.
For Greater Omaha Packing Co., Inc., Petitioner (14-1651): Ruth Horvatich, Roger James Miller, Mcgrath & North, Omaha, NE.
For National Labor Relations Board, Respondent (14-1651): Lyn Buckley, National Labor Relations Board, Overland Park, KS; Linda Dreeben, Deputy Associate General Counsel, Jill A. Griffin, Supervisory Attorney, National Labor Relations Board, Washington, DC; Micah Prieb Stoltzfus Jost, National Labor Relations Board, Appellate and Supreme Court Litigation Branch, Washington, DC.
For National Labor Relations Board, Petitioner (14-1934): Linda Dreeben, Deputy Associate General Counsel, Jill A. Griffin, Supervisory Attorney, Meredith Jason, National Labor Relations Board, Washington, DC; Micah Prieb Stoltzfus Jost, National Labor Relations Board, Appellate and Supreme Court Litigation Branch, Washington, DC; Naomi Stuart, National Labor Relations Board, Overland Park, KS.
For Greater Omaha Packing Co., Inc., Respondent (14-1934): Ruth Horvatich, Roger James Miller, Mcgrath & North, Omaha, NE.
Before RILEY, Chief Judge, LOKEN and SMITH, Circuit Judges.
LOKEN, Circuit Judge.
The General Counsel of the National Labor Relations Board charged Greater Omaha Packing Co., Inc., with wrongfully terminating three employees for engaging in protected concerted activity, interrogating employees regarding protected concerted activities, and creating the impression it was conducting surveillance of employees' protected concerted activities. After an evidentiary hearing, the Board's Administrative Law Judge (" ALJ" ) determined that Jorge Degante Enriguez (" Degante" ), Susana Salgado Martinez (" Salgado" ), and Carlos Zamora were wrongfully terminated in violation of Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), but found that Greater Omaha had not made coercive statements to Zamora or created the impression that Degante and Salgado's protected activities were under surveillance. Greater Omaha and the General Counsel cross-appealed to the Board, which sustained all charges. Greater Omaha petitions to set aside the Board's Decision and Order; the General Counsel cross-petitions to enforce the Order. We affirm the wrongful termination rulings, decline to uphold the interrogation and surveillance rulings, and enforce the Board's Order, as so modified.
Greater Omaha employs several hundred workers in the fabrication area of its beef processing plant, where meat is processed into cuts as it moves through the area on multiple lines at set speeds. The line employees work in close proximity to each other but cannot see their supervisors' office from the production floor. In 2008, the entire non-union fabrication workforce stopped working until Greater Omaha's owner listened to their concerns. No employees were fired for the 2008 stoppage.
In April 2012, the Department of Homeland Security notified Greater Omaha that the employment eligibility of 179 employees could not be verified. Customs officials arrested some employees and others quit, forcing Greater Omaha to replace dozens of workers. During this process, the remaining employees complained that the speed of the meat lines forced them to assume heavier workloads because there were so many new workers. In mid-April, ten to twelve employees, including Zamora, left their workstations and went to the cafeteria to protest these working conditions. They returned to work when Plant Manager Jose Correa agreed to meet at the end of the day. During that meeting, employees including Zamora expressed concern they were not being paid enough and the meat conveyors were moving too fast at current staffing levels. Correa replied that the compensation package including benefits was competitive. He agreed to speak with management about their concerns and reminded employees of the safety rule that they not leave the production lines without permission. Zamora testified that Correa said a pay increase was possible, but he had to speak with Fabrication Manager Eliseo Garcia.
Degante testified that employees remained disgruntled about wages and line speeds after the meeting with Correa and looked to Degante for a solution. In early May, Degante planned a work stoppage
for Monday, May 14, with the signal to be the clock striking 10AM. Over the prior weekend, Degante asked Salgado to tell other employees about the stoppage; when she told others on her line, they were already aware of the plan. A friend told Zamora of the planned stoppage before the end of his 9AM break on Monday morning.
Around 9:30AM on May 14, Zamora was summoned to the supervisor's office, where Correa was waiting with Garcia. Zamora testified:
Q What did Mr. Correa say?
A He wanted to know what it is that I wanted, that I have a good job, that I have good insurance, that I have good overtime, what else did I want?
Q Did you respond?
A I told him that all I wanted was an increase.
Q What did Mr. Correa say?
A That I was fired, just to leave my stuff back there because I had left my line twice.
A security guard escorted Zamora from the plant; he did not return to the production floor. Correa and Garcia testified that, during the prior week, Zamora left his line without authorization to speak to Garcia, who warned him not to. At the May 14 meeting, Garcia told Zamora that he needed to get permission before leaving his line. Correa fired Zamora when he responded by calling Garcia and Correa assholes and claimed they were picking on him. Zamora then swore and yelled, " I am going to kill you and your family." Zamora denied swearing, yelling, being disrespectful, or threatening anyone. The security guard who escorted Zamora from the plant testified that he thought Zamora and the supervisors were threatening each other as they exited the office but was unsure because they were speaking Spanish.
Shortly after 9:30AM, Degante's immediate supervisor told him to go to Garcia's office, where Correa and Garcia were waiting. Degante testified that, when he arrived, Garcia accused him of being " the one agitating people." Degante denied " doing anything" but agreed he was not happy with his salary. Garcia said, " Just leave your stuff in here and you can go. You are dismissed." Degante testified that, when he protested that was unfair, Garcia said " that someone had told him that I was the leader of the strike that we were planning to do." Two security guards escorted Degante to his locker and then " to the exit door, where I have my car."
Correa and Garcia again offered a different account of the meeting. Correa testified that Degante was summoned because he was late getting to his line after the morning break. Garcia testified that Degante's tardiness had been a continual problem during Garcia's four and a half years at the plant. When they brought up issues of timeliness and following instructions, Degante refused to acknowledge he had done anything wrong, and Correa fired him for insubordination. Correa testified that, if Degante had acknowledged wrongdoing and said he would change his ways, he would not have been fired. Degante admitted he had been warned in 2012 about taking unauthorized breaks.
At some point later that morning, four supervisors including Correa and Garcia spoke to Salgado in the supervisor's locker room. She had not seen Degante or Zamora after their terminations. Correa told her, " You are here because you are one of the organizers of the strike." Salgado asked who told him that. Correa responded, " In here, there are no witnesses. You didn't take good care of your job. You are fired." Security then escorted her from the plant. Salgado testified she was not informed of any rules she had broken but admitted she sometimes left her work area
without permission to use the restroom. Garcia testified that he summoned Salgado because he had seen her on the catwalk that morning. Correa and Garcia testified they informed Salgado she should not leave her workstation without permission. Salgado replied that others left without permission so she could as well. The disagreement continued until Salgado said her supervisors " were not very good employers" and were mistreating her. Correa then fired her for failure to follow instructions. Garcia described Salgado as " a good performer with no previous incidents," but her immediate supervisor testified that Salgado leaving the line without permission was a daily occurrence.
No work stoppage occurred on May 14. Greater Omaha was charged with wrongfully terminating the three employees for engaging in protected concerted activity. The interrogation and surveillance charges arose out of the three termination meetings. The issues at the contested hearing turned in large part on conflicting testimony by ...