NLRB rules BrucePac firings broke federal labor law

BrucePac broke federal labor law when it fired workers last June for supporting a union campaign, said an April 8 judge’s ruling. The case stems from unfair labor practice charges that Portland-headquartered Laborers Local 296 filed last July against BrucePac — a cooked meat producer with plants in Woodburn and Silverton, Oregon.

Altogether, Local 296 accused BrucePac of firing 17 union supporters and disguising the firings in a 42-worker mass layoff. Agents of the National Labor Relations Board (NLRB) concluded there wasn’t enough evidence to pursue charges in 13 of the firings, but issued a complaint in four, and held a trial Feb. 8-10 before administrative law judge Lana Parke.

It’s against federal law for an employer to fire a worker for union activity. Proving it is another matter.

The NLRB, responsible for protecting workers’ union rights, is possibly the most feeble federal law enforcement agency. It waits until someone files a complaint, takes statements from each side, and if no “smoking gun” evidence emerges, drops the charge. It doesn’t visit the work site, subpoena documents, or compel testimony from anyone. Employers know that the worst consequence they face for firing pro-union workers is a court order to reinstate them with back pay — minus any money the workers earned elsewhere after the firing.

At BrucePac, firings took place at both locations, on every shift, in every department — operations, sanitation, maintenance, quality assurance, accounting. But shifts and locations varied greatly in the percentage of employees laid off. To Local 296, it seemed obvious that the “layoffs” were about decapitating the union campaign. In a workplace of about 350, 42 workers were laid off — one month after a union campaign began. Included in the layoff were Luis Coria, who had called the union in the first place, his brother Manuel, and almost every individual who had attended three pro-union meetings at Manuel’s house. In all, 17 workers known to the union as supporters — many of them the most experienced in their departments — were terminated.

Local 296 denounced the firings, put pickets up outside BrucePac, and filed 18 charges with the NLRB.

But for the NLRB to prosecute an employer, it’s not enough to show that a pro-union worker was fired. The NLRB must be shown that the worker took pro-union action, that the employer knew about it, and that the employer opposed unionization. If those three things are shown, the burden of proof shifts to the employer — to show that it would have fired the worker anyway for some other reason.

BrucePac, represented by the law firm Jackson Lewis, told NLRB agents it didn’t know that the terminated workers were union supporters, so it couldn’t have fired them for being union supporters. In most of the cases, Local 296 had no way to prove otherwise, and those charges were dismissed.

But on the day-shift in the sanitation department at the Silverton plant, supervisor Abel Esparza slipped up. Ten days before the firings, Esparza had called BrucePac worker Maria Estelle Cortez on her cell phone as she was carpooling home with co-worker Laura Jimenez deCordoba. Esparza asked Cortez to confirm that workers were forming a group to bring in the union, and mentioned her husband, Jose Carmen Maciel, and his co-worker Manuel Coria, by name. Esparza said it was a delicate thing; he had a raise for Maciel and Coria, but they needed to be careful. Esparza told Cortez he knew a union meeting was scheduled the following day (and it was, in fact) and that on Monday, he “would know.”

Ten days later, the mass layoff hit four workers in the Silverton sanitation department day shift: Coria and Maciel, and also Daniel Luna and Federico Nieves Rojas. Coria and Maciel were the most senior of the 13 sanitation workers on their shift.

Later, a terminated worker from the Silverton sanitation night shift, Mauro Navarro, asked Esparza, his friend of 15 years, why workers had been laid off. Esparza said he’d chosen the day-shift sanitation workers for layoff because they were stirring things up, meeting with the union.

At trial, those two conversations made it harder for BrucePac to deny it knew about the union campaign, though it tried. Esparza testified that he didn’t know any of the four terminated workers were pro-union, but the judge found the testimony of Cortez and Navarro more credible.

BrucePac attorneys also argued that Esparza wasn’t the one who made the decision to fire the four workers. Assistant Sanitation Manager Osmin Martinez testified that he was the one who selected workers for layoff, and that he hadn’t known about the union. Unlike with Esparza, the union had no witnesses to contradict Martinez’ assertions.

Martinez further testified that in making the layoff decisions, he sought no input from lower-level supervisors, did not review personnel files, and relied solely on his recollection of previous oral reports from supervisors. He claimed that he had taken only half an hour to decide how many positions to eliminate from two shifts in the two plants, and no more than another half hour to decide which individuals to terminate. Asked why these four in the Silverton day shift were chosen, Martinez recalled in fuzzy detail some attitude problems and infractions, but declined to produce witnesses or evidence to back those claims. And Martinez failed to remember that other workers who were retained had committed similar infractions.

Local 296 Representative Jack Roy watched the whole trial and said Martinez’ testimony was an outright embarrassment. After every question from the NLRB attorney, Martinez seemed to look to BrucePac attorneys for some sign, until they stopped making eye contact with him and kept their heads down.

“It was obvious,” Roy said. “He was programmed.”

In her written ruling, Judge Parke called Martinez’ testimony “implausible” and “vague” and said “he seemed defensive if not resistant on cross examination.” In a nutshell, Parke said she didn’t believe anything Martinez said unless it was backed up by someone else.

In her written decision, Parke ordered BrucePac to cease and desist interrogating employees about union activities, threatening employees with unspecified reprisals for supporting the union, and terminating employees for engaging in union activities. She also ordered the company to offer reinstatement and back pay to three of the fired workers — Manuel Coria, Jose Carmen Maciel, and Daniel Luna — and post a notice in the workplace explaining all that and informing workers of their right to form a union. As for the fourth worker, Nieves, Parke found that past tardiness made it plausible that he would have been laid off anyway.

Parke gave BrucePac two weeks to comply with the order, but as NLRB Seattle regional director Rich Ahearn explained to the Labor Press, that timeline doesn’t have the force of law and can’t, as a practical matter, be enforced.

BrucePac didn’t comply with the deadline, and in fact, fired another union supporter — deCordoba — on March 30, according to a complaint filed with the Oregon Bureau of Labor and Indusries. DeCordoba was present when Esparza called Cortez, and had a harassment charge against Esparza that the Oregon Bureau of Labor and Industries is investigating.

BrucePac’s failure to reinstate within the judge’s timeline may mean it plans to appeal her ruling to the next level: the National Labor Relations Board in Washington, D.C. The company had until May 6 to appeal, but had not done so when this issue went to press May 4. An appeal could drag out the case for months and years. The Board seldom reverses judges’ decisions, but has often been heavily backlogged in recent years. In the last decade, the median length of time it has taken — from the moment a judge’s decision is appealed to moment the Board makes its decision — has ranged from six to 21 months.

Aranda said he’s pleased that the judge ordered three workers reinstated. But for Local 296, the bigger picture is that 14 other pro-union workers were fired without any consequence, and the 350-plus workers who remain at BrucePac still need a union.

In its initial investigation, the NLRB accepted BrucePac’s explanation that the layoffs had a legitimate business rationale — that it was because of a continuing business downturn that had begun in 2007. But Roy says the day after the layoff, help wanted notices went up on BrucePac’s workplace bulletin boards. New temporary employees were brought in. And workers were asked to work overtime.

Meanwhile, the trial seemed to show why BrucePac workers might want a union. Coria testified that he arrived at the Silverton plant at 5:30 a.m. for a 10-hour shift, four days a week. Wearing a coat and two pairs of gloves, he pressure washed floors, cleaning up blood that leaked from boxes of meat. Handling hazardous chemicals, he cleaned and sanitized machines and walk-in coolers at temperatures of 20 below zero. He drove a forklift, took out the trash, and trained as many as 10 new employees during the decade he worked at BrucePac. All this for $10.75 an hour, $2.35 above Oregon’s minimum wage.

So when his brother called the union, Coria got involved. He encouraged coworkers to support the union, hosted three union meetings at his home, and spoke daily to co-workers about the union during breaks in the company lunchroom.

After the final meeting, Coria distributed to co-workers a union-created pamphlet entitled, “35 things your employer cannot do.”

One of 35 things was … fire workers for supporting a union campaign.