421.04 Timing Of Action

421.04 Timing of discharge, day after Respondent threatened employees with loss of benefits if they selected union to represent them, strong evidence of that discriminatee's union activities, referred to in same conversations, caused discharge. M. CURTI & SONS, 19 ALRB No. 18

421.04 Though employer witnesses may have provided exaggerated testimony of poor work performance to justify layoff, where no reason to disbelieve consistent testimony that decision was in any event made before the protected activity that allegedly motivated it and some evidence of difference in quality as compared to other crews, discriminatory layoff allegation must be dismissed.

SUMA FRUIT INT'L (USA), INC., 19 ALRB No. 14

421.04 Where employees were laid off within 3 weeks of their concerted activity and employer failed to prove unavailability of work, General Counsel proved the layoffs unlawful. HARLAN RANCH COMPANY, 18 ALRB No. 8

421.04 Timing of massive layoffs immediately after election indicates that layoffs motivated by employees having sought union representation and obtained election.

GERAWAN RANCHES, 18 ALRB No. 5

421.04 Foreman's negative statement regarding employment opportunities for those previously engaged in union organizing effort, the timing of the refusal to rehire crews involved in union activity in relation to the hiring of other crews, and the employer's assertion of shifting, inconsistent reasons for the unavailability of work, all indicate that the employer's motivation for refusing to rehire the workers was their protected union activity. STAMOULES PRODUCE CO., 16 ALRB No. 13

421.04 Foreman's open hostility to previous union activities, the timing of the employee's discharge, and the employer's advancement of shifting, inconsistent reasons for its adverse action, all indicate that the employer's motivation for discharging the employee was his protected union activity. BRUCE CHURCH, INC., 16 ALRB No. 3

421.04 General Counsel failed to establish a prima facie case of discriminatory discharge where employee was the only one of four workers who failed to finish job assignment, and his discharge was not closely linked in time to his protected activity.

SUNNY CAL EGG & POULTRY, INC., 14 ALRB No. 14

421.04 Discharge of two employees who refused to sign Employer's petition to oust the Union was not entirely pretextual, since Employer had some genuine concern that the employees had been "horsing around" and "dragging on the clock" in order to work overtime. However, a number of factors show that Employer would not have discharged the employees in the absence of their protected activity: the Employer's hostile antiunion statements during the discharge incident; fact that a co-employee who had signed the Employer's petition was not fired; the discharges occurred only four days after Union was certified; in view of the employees' extended years of service, the alleged misconduct was not serious enough to warrant discharge.

SUNNY CAL EGG & POULTRY, INC., 14 ALRB No. 14

421.04 Dissent: The fact that several calendar days elapsed between work stoppage and transfer does not operate to negate strong evidence that Respondent was retaliating against crew members who engaged in protected activity.

PHILLIP D. BERTELSEN 12 ALRB No. 27

421.04 An unlawful discharge is established by evidence of the dischargees' role as employee spokesperson, subsequent retaliation by imposition of harsh working conditions immediately following assertion of the role of spokes-person and termination shortly thereafter. The Employer's defense of lack of production and a random method of selection for discharge was discounted by the animus of the employer, the timing of the discharge and the change in layoff selection process.

LIGHTNING FARMS 12 ALRB No. 7

421.04 The timing of a discharge just three (3) weeks after the worker filed a charge with the ALRB can be a critical factor and strong circumstantial evidence that the employer violated section 1153(d).

KIRSCHENMAN ENTERPRISES, INC., 12 ALRB No. 2

421.04 Employer's business justification for discharge of two employees--that they were among five employees with lowest seniority--is pretextual, since discharge closely followed the two employees' participation in union activities, and other employees with less seniority were rehired in the following few days.

CLARK PRODUCE, INC., 11 ALRB No. 19

421.04 Discharges of union activists within two weeks of representation election, although prima facie discriminatory, were found to be based on one activist's insubordination and the other's brandishing of gun to other employee during election.

VISALIA CITRUS PACKERS, 10 ALRB No. 44

421.04 Board rejected employer's defense that layoff of student son of known activists was due to nondiscriminatory policy of denying weekend and vacation work to minor children of regular employees unless there was enough work to keep steady employees busy, and based its rejection on timing of layoffs the day after a representation election, and inconsistencies and contradictions in employer's witnesses' explanation of sudden enforcement of policy.

VISALIA CITRUS PACKERS, 10 ALRB No. 44

421.04 Suspicions raised by post-election layoffs of student son of union activist were not undermined by fact that father and uncle, the "real union activists", were retained.

VISALIA CITRUS PACKERS, 10 ALRB No. 44

421.04 Layoff found discriminatory where supervisors threatened loss of work if union won election, anti-union employees were segregated into one crew, and only pro-union employees were laid off immediately after union won election. PIONEER NURSERY, 10 ALRB No. 30

421.04 Employee's union activity was not too remote in time from the act of discrimination to preclude the finding of a violation. PAUL BERTUCCIO, 10 ALRB No. 10

421.04 Employer unlawfully refused rehire to union supporters where leave policy was applied inconsistently immediately after takeover of business by new owner who took adamant bargaining stance.

DESSERT SEED COMPANY, INC., 9 ALRB No. 72

421.04 Employer's implementation of rule change from suckering in rows to suckering in spaces, isolating workers during union organizing drive and shortly after protected work stoppage, violated 1153(a); discharge of employees for failure to follow rule violated Act.

ARMSTRONG NURSERIES, INC., 9 ALRB No. 53

421.04 Layoff found discriminatory where supervisors threatened loss of work if union won election, anti-union employees were segregated into one crew, then only pro-union employees were laid off immediately after union won election. PIONEER NURSERY, 9 ALRB No. 44

421.04 Discharge of active union supporter unlawful where discharge occurred shortly after employee's union activity and employer response was disproportionate to alleged employee misconduct.

RIGI AGRICULTURAL SERVICES, INC., 9 ALRB No. 31

421.04 Termination of an entire crew found to be a violation of sections 1153(c) and (a) of the Act where work-deficiency justifications offered by employer appeared unpersuasive, one discharged crew member was not present at the time of the discharge, and most of the crew had recently been engaged in known strike activity.

ALPINE PRODUCE, 9 ALRB No. 12

421.04 In determining if discharge was discriminated; several factors are significant: (1) timing of discharge is near alleged discriminatory act; (2) other 1153 violations in same time period; (3) anti-Union animus on part of Employer; (4) discharge is without prior warnings and (5) shifting reasons for discharge.

DEL MAR MUSHROOMS, INC., 7 ALRB No. 41

421.04 No causal connection between PCA and discharge where some 6 months elapsed and Employee destroyed Employer's crops, was fired immediately after such destruction, and Employee had fewer problems at work after PCA until the discharge. TENNECO WEST, INC., 7 ALRB No. 12

421.04 No violation where disciplinary notices were issued to Employees who had engaged in PCA recently where there was a recent history of poor work by their crew, and General Counsel did not show that Employees who got the notices were more involved in PCA than those who did not.

GIUMARRA VINEYARDS, INC., 7 ALRB No. 7

421.04 Employer violated 1153(c) and (a) for issuing disciplinary notice to Employee who was overheard talking with other Employees about a strike and who had led the crew in wage dispute a few days earlier. Defense that the Employee was performing work improperly pretextual since Employee's husband who was working with her was not reprimanded. GIUMARRA VINEYARDS, INC., 7 ALRB No. 7

421.04 General Counsel failed to sustain its burden of proving causal connection between Employee's concerted activity and discharge where 2 + months elapsed between protected activity and termination and where shouting incident between Employee and Supervisor immediately preceded firing. YAMAMOTO FARMS, 7 ALRB No. 5, ALOD pp. 14-15

421.04 Employer's inconsistent and superficial excuses for failure to hire or consider hiring predecessor's employees warranted inference that employer's motives were discriminatory. RIVCOM CORPORATION and RIVERBEND FARMS, INC., 5 ALRB No. 55

421.04 Although the timing of employee's discharge was suspect, viz., four days after his participation in concerted activity, the uncontradicted record evidence amply demonstrated that supervisors were experiencing problems with employee's work performance; moreover, the Employer's witnesses testified that they had decided upon discharge prior to employee's participation in protected concerted activity. General Counsel therefore failed to demonstrate by a preponderance of the evidence that the employee would not have been terminated but for his participation in the protected, concerted activities.

SAM ANDREWS' SONS (1979) 5 ALRB No. 38

421.04 Reprimands based on legitimate Bus reasons, Complaint of "dirtypicking" and not completing work, not Discriminated despite timing of initial reprimands only a month after election in which Employee was vocal Union supporter.

TREFETHEN VINEYARDS, 4 ALRB No. 19

421.04 Employer violated 1153(c) and (a) when six employees discharged immediately after supervisor observed them talking with union organizer, supervisor obviously angered by spectacle of employees engaged in organizational activity, and intense anti-union animus manifested on numerous other occasions.

ANDERSON FARMS COMPANY, 3 ALRB No. 67

421.04 Layoff of family violated 1153(c) and (a) where union (taking authorization cards and speaking with union representative in presence of employer ranch superintendent) preceded layoff notice by 20 minutes, and employer's explanation riddled within consistencies and contradictions. ANDERSON FARMS COMPANY, 3 ALRB No. 67

421.04 Timing of employer's denial of wage increases is evidence of antiunion animus.

RULINE NURSERY CO. v. ALRB (1985) 169 Cal.App.3d 247

421.04 Timing of employer's denial of wage increases is evidence of antiunion animus.

RULINE NURSERY CO. v. ALRB (1985) 169 Cal.App.3d 247

421.04 Discharge of union activist found discriminatory where discharge occurred immediately upon employer's discovery of employee's union activity; employer made anti-union statements; work was clearly available; and discharge was based on fabricated charge of theft. BABBITT ENGINEERING & MACHINERY v. ALRB (1984) 152 Cal.App.3d 310

421.05 Extent Of Union Activity Of Discriminatee

421.05 Discharge of crew members who walked off the job to seek assistance of union unlawful. Walkout was protected activity, as there was insufficient evidence of oral no-strike agreement and walkout was not in derogation of role of union. Record does not show that crew members attempted to negotiate with employer representatives to the exclusion of the union and walkout was for express purpose of involving union in the dispute. Demands of those who staged walkout not inconsistent with position of the union because the union had not yet agreed to the employer's latest proposal and the union had not waived the right to further bargaining at time of the walkout.

BRIGHTON FARMING CO., INC., 18 ALRB No. 4

421.05 In certain circumstances, a familial relationship with a person who has engaged in activity protected by the Act may be found to be the motivation behind discriminatory treatment of the relative. Where, however, the only evidence in support of a charge of discriminatory layoff is the familial relationship to the activist, at most a suspicion of unlawful motive may be raised, but the familial relationship alone is insufficient to meet General Counsel's burden of proof.

LIGHTNING FARMS, 12 ALRB No. 7

421.05 Act protects all manner of union activity, and an employee does not have to be very active in order to enjoy the Act's protections.

GEORGE LUCAS & SONS, 11 ALRB No. 11 (See 13 ALRB No. 4)

421.05 Suspicions raised by post-election layoffs of student son of union activist were not undermined by fact that father and uncle, the "real union activists," were retained.

VISALIA CITRUS PACKERS, 10 ALRB No. 4

421.05 Discharge did not violate Act where, although Employer's reasons for discharge were suspicious, the Union activity was minimal, Employer knowledge of same was scarce and discharge was the result of tensions between management and workers regarding more stringent management procedures rather than Union activity.

DEL MAR MUSHROOMS, INC., 7 ALRB No. 41

421.05 Unlawful layoff found where Employees were active Union representatives and supporters, crew was important to possible success of (unlawful) decertification drive, selection of layoffs made little sense unless one concluded Employer attempted to specifically eliminate discriminatees, and a few days before layoffs, general foreman was overheard telling foremen to discharge crew' Union representative. ABATTI FARMS, INC., and ABATTI PRODUCE, INC., 7 ALRB No. 36

421.05 Where the employer failed to even interview our independent witness of an altercation between an employee and a supervisor who had given conflicting accounts of the incident, and the employer was well aware of the employee's union activities, the Board found the employee's discharge unlawful.

SUNNYSIDE NURSERIES, INC., 6 ALRB No. 52

421.05 Board dismissed charge of alleged discriminatory layoff or refusal to rehire because Employer Union activity minimal and not showing Employer knew of such activity.

MARIO SAIKHON, INC., 4 ALRB No. 107

421.05 Section 1153(c) and (a) are violated by respondent's layoff of an openly pro-union crew shortly before an election and the hiring of an apparently less pro-union crew. Shortly before the election, respondent altered its payroll periods in a manner which disenfranchised the more pro-union crew, and issued misleading statements in a leaflet which evidenced animus towards the UFW. Respondent's ostensible economic justification (light lettuce packs, variance in lettuce-pack weights, and quality of lettuce packs) for the discharge held not supported by the record evidence.

S & F Growers (1978) 4 ALRB No. 58

421.05 Discharge not violation of section 1153(a) or (c) when Employee not engaged in concerted activity but made only personal gripes, and no Union activity.

TREFETHEN VINEYARDS, 4 ALRB No. 19

421.05 Employee's involvement in union activities does not immunize him or her from discharge for misconduct or from routine employment decisions. MARTORI BROTHERS DISTRIBUTORS v. ALRB (1981) 29 Cal.3d 721

421.05 A few isolated anti-union comments by supervisors did not prove discriminatory motive where employer overall displayed no animus, employee had little union activity, and company had legitimate reasons for treating the employee differently than other irrigators at other times.

GEORGE ARAKELIAN FARMS v. ALRB (1980) 111 Cal.App.3d 258

421.05 Employee who engages in union activities will not tie employer's hands and prevent him from exercise of his business judgment to discharge employee for cause. SUNNYSIDE NURSERIES, INC. v. ALRB (1979) 93 Cal.App.3d 922

421.06 Grievances Or Bargaining Demands, Presentation Of; Suits Against Employers

421.06 General Counsel failed to show that employer discharged employee because she engaged in protected concerted activity by complaining about portable toilets.

CARDINAL DISTRIBUTING CO., INC., et al., 9 ALRB No. 43

421.07 Knowledge of Employee's Union Activities, Proof Of; Surveillance Or Questioning

421.07 Respondent's statement describing exactly activities that only discriminatee had engaged in showed Respondent either knew the identity of that employee or would have surmised the employee's identity based on what supervisor said, and the small size of its work force and the close contact between supervisor and employees. Knowledge was established even without application of small plant doctrine. M. CURTI & SONS, 19 ALRB No. 18

421.07 Since the duty to supply information relevant to the union's obligations to administer the bargaining agreement is a statutory one, it is immaterial whether a contract is silent as to information the employer must submit; the duty to supply information exists independent of any agreement between the parties.

RICHARD A. GLASS CO., INC., 14 ALRB No. 11

421.07 A supervisor's knowledge of union activity may be imputed to the employer (absent a direct denial) even though the supervisor was a rank and file employee at the time the information was acquired.

(ALJ Decision.)

E. W. MERRITT FARMS, 14 ALRB No. 5

421.07 Knowledge of foreman's refusal to commit ULP is imputed to higher management officials where there is no evidence that such information was not passed on.

GEORGE LUCAS & SONS, 11 ALRB No. 11 (See 13 ALRB No. 4 )

421.07 Termination of crew found to be a violation of sections 1153(c) and (a) of the Act where one of three requisite warnings had, by employer's own admission, been based upon the crew's participation in protected concerted strike activity.

ALPINE PRODUCE, 9 ALRB No. 12

421.07 No violation of 1153(d) where Employee filed charge and was refused rehire, absent evidence labor contractor who did not rehire him was aware charge filed.

NASH-DE CAMP COMPANY, 8 ALRB No. 5

421.07 Small plant doctrine (whereby Employer knowledge of Union activity is inferred because of small number of Employees in small area where PCA occurs) inapplicable where Union activity minimal and only evidence of discussion between Employer and Employees was after alleged discriminatee discharge. DEL MAR MUSHROOMS, INC., 7 ALRB No. 41

421.07 Discharge did not violate Act where, although Employer's reasons for discharge were suspicious, the Union activity was minimal, Employer knowledge of same was scarce and discharge was the result of tensions between management and workers regarding more stringent management procedures rather than Union activity.

DEL MAR MUSHROOMS, INC., 7 ALRB No. 41

421.07 Employer knowledge of Union activity may be shown by circumstantial evidence.

DEL MAR MUSHROOMS, INC., 7 ALRB No. 41

421.07 Where the employer failed to even interview our independent witness of an altercation between an employee and a supervisor who had given conflicting accounts of the incident, and the employer was well aware of the employee's union activities, the Board found the employee's discharge unlawful.

SUNNYSIDE NURSERIES, INC., 6 ALRB No. 52

421.07 Where it was shown that the employer knew of the employee's union activities and sentiment, had an anti-union animus, and gave shifting reasons for its failure to rehire him, the Board found that the employee had been unlawfully discharged.

Golden Valley Farming, 6 ALRB No. 8

421.07 Violation of section 1153(c) and (a) found where foreman who refused to rehire a married couple, at the time others were being hired, told them his reason was that the boss did not want or like union people. Knowledge of belief of union activity shown by supervisor's statements. (Subsequent history indicates that this case was vacated (10/27/80).)

LOUIS CARIC & SONS, 6 ALRB No. 2

421.07 Small plant doctrine not basis for inferring Employer knowledge of Employee's Union activity where Employee worked alone, supervision was sporadic and limited, and Union activity was minimal.

MARIO SAIKHON, INC., 4 ALRB No. 107

421.07 Board dismissed charge of alleged discriminatory layoff or refusal to rehire because Employer Union activity minimal and not showing Employer knew of such activity.

MARIO SAIKHON, INC., 4 ALRB No. 107

421.07 Employee's Union activity and Employer's knowledge thereof established by Employee's talking to Supervisor regarding Union, asking pro-Union questions, being seen by Supervisor's with Union people, wearing Union buttons, etc.

KITAYAMA BROS. NURSERY, 4 ALRB No. 85

421.07 Employer knowledge of Union activities of Employee established where Supervisor heard Employee yell "Viva Chavez," regularly reported activities on the premises to Employee's Supervisor and 2 or 3 weeks after the "Viva Chavez" incident Employee's Supervisor asked Employee if he was satisfied with job and fired Employee three days later.

KITAYAMA BROS. NURSERY, 4 ALRB No. 85

421.07 Where the record established employer knowledge of concerted activities, but not of the employees' union support and sympathies, the Board found that the employees were laid off in violation of section 1153, subdivision (a).

MAGGIO-TOSTADIO, INC., 3 ALRB No. 33

421.07 Where the preponderance of the evidence employer knowledge of the Union activities and sympathies, and inconsistent or shifting reasons for the layoff of the employees, the Board held that the employer had unlawfully laid off the employees in violation of section 1153, subdivisions (a) and (c).

MAGGIO-TOSTADIO, INC., 3 ALRB No. 33

421.08 Majority Status Affected By Termination

421.08 Board found violation of section 1153(c) and (a) where successor-employer failed to consider or hire any of predecessor's. RIVCOM CORPORATION and RIVERBEND FARMS, INC., 5 ALRB No. 55

421.09 Meritorious Or Satisfactory Service; Prior Promotion Or Wage Increase

421.09 Although employer may have had mixed motive in discharging employee, evidence that he received two wage increases shortly before discharge and was discharges on same day two other employees were unlawfully laid off, proves that employer would not have discharged him in the absence of his concerted activity.

HARLAN RANCH COMPANY, 18 ALRB No. 8

421.09 Discharge of two employees who refused to sign Employer's petition to oust the Union was not entirely pretextual, since Employer had some genuine concern that the employees had been "horsing around" and "dragging on the clock" in order to work overtime. However, a number of factors show that Employer would not have discharged the employees in the absence of their protected activity: the Employer's hostile antiunion statements during the discharge incident; fact that a co-employee who had signed the Employer's petition was not fired; the discharges occurred only four days after Union was certified; in view of the employees' extended years of service, the alleged misconduct was not serious enough to warrant discharge.

SUNNY CAL EGG & POULTRY, INC., 14 ALRB No. 14

421.10 No Reason, False, Or Inconsistent Reasons Given For Dismissal

421.10 Inference of causal relationship between protected activity and refusal to rehire established by failure to adhere to established reemployment practices and by giving false and shifting reasons for refusal.

GIANNINI PACKING CORP., 19 ALRB No. 16

421.10 Finding that tractor driver stopped working due to recurring back trouble, rather than due to dislike for night work as claimed by employer, does not warrant inference that employer's claim was a pretext to hide animus based on protected activity of tractor driver's son where employer would in any event be disturbed by risk created that work would not be completed before rains came. D & H FARMS, 18 ALRB No.12

421.10 Finding that transportation discontinued for discriminatory reasons reversed where employer's defense at hearing not so different from that expressed in answer or at prehearing conference as to reflect shifting rationales or after the fact justifications and foreman's earlier threat to make adverse changes was remote in time and conditioned on the union winning the election.

OASIS RANCH MANAGEMENT, INC., 18 ALRB No. 11

421.10 Although employer gave shifting reasons for failure to rehire, Board did not infer an improper motive where employee's concerted activity was weak, management did not respond to activity with hostility, and evidence indicated that employee's work performance was unacceptable. T.T. MIYASAKA, INC., 16 ALRB No. 16

421.10 Foreman's negative statement regarding employment opportunities for those previously engaged in union organizing effort, the timing of the refusal to rehire crews involved in union activity in relation to the hiring of other crews, and the employer's assertion of shifting, inconsistent reasons for the unavailability of work, all indicate that the employer's motivation for refusing to rehire the workers was their protected union activity. STAMOULES PRODUCE CO., 16 ALRB No. 13

421.10 Foreman's open hostility to previous union activities, the timing of the employee's discharge, and the employer's advancement of shifting, inconsistent reasons for its adverse action, all indicate that the employer's motivation for discharging the employee was his protected union activity. BRUCE CHURCH, INC., 16 ALRB No. 3

421.10 Employer's stated reason for discharging employee--that he was verbally abusive to other employees-- was pretextual, and Board upholds ALJ's conclusion that the employee was discriminatorily discharged. BAIRD-NEECE PACKING CORPORATION, 14 ALRB No. 16

421.10 The belated introduction of a new justification can be a factor suggesting the existence of a concealed and improper motive. RANCH NO. 1, 12 ALRB No. 21

421.10 An employer failed to meet its burden of establishing that the foreman had been terminated for intoxication where credited, corroborated evidence showed the foreman to have a sober demeanor, and the employer's version was discredited based upon the demeanor of the witnesses, the failure to supply purported documentary substantiation and other lack of corroborating evidence.

SEQUOIA ORANGE CO., 11 ALRB No. 21

421.10 Where employer's asserted reason for a discharge is proven to be false, Board can infer that there is another, unlawful, motive which employer desires to conceal, where surrounding facts, such as antiunion animus, tend to reinforce that inference.

THE GARIN COMPANY, 11 ALRB No. 18

421.10 Board rejected employer's defense that layoff of student son of known activists was due to nondiscriminatory policy of denying weekend and vacation work to minor children of regular employees unless there was enough work to keep steady employees busy, and based its rejection on timing of layoffs the day after a representation election, and inconsistencies and contradictions in employer's witnesses' explanation of sudden enforcement of policy.

VISALIA CITRUS PACKERS, 10 ALRB No. 44

421.10 Employer's defense that it denied available field work to five discriminatees because they had no experience in such work was discredited, in part by its employing new workers with no prior experience to do the field work.

PAUL BERTUCCIO, 10 ALRB No. 10

421.10 Employer discharged protesters where credited testimony indicated that, when protesters offered to go to work, employer told them it was too late, though they had not yet been replaced. MARDI GRAS MUSHROOM FARMS,

10 ALRB No. 8

421.10 Employer's implementation of rule change from suckering in rows to suckering in spaces, isolating workers during organizing drive and shortly after protected work stoppage, violated 1153(a) where employer's president had instructed supervisor to do everything in his power to prevent union from coming in, employer had a long history of suckering in rows, its agents gave shifting and contradictory explanations for the change, little evidence was presented that employee fraternizing had interfered with suckering, and foreman admitted that the spaces order was retained into the following season to avoid the inference that discharges for its violation were discriminatory.

ARMSTRONG NURSERIES, INC., 9 ALRB No.53

421.10 Termination of an entire crew found to be a violation of sections 1153(c) and (a) of the Act where work-deficiency justifications offered by employer appeared unpersuasive, one discharged crew member was not present at the time of the discharge, and most of the crew had recently been engaged in known strike activity.

ALPINE PRODUCE, 9 ALRB No. 12

421.10 In determining if discharge was discriminated; several factors are significant: (1) timing of discharge is near alleged discriminatory act; (2) other 1153 violations in same time period; (3) anti-Union animus on part of Employer; (4) discharge is without prior warnings and (5) shifting reasons for discharge.

DEL MAR MUSHROOMS, INC., 7 ALRB No. 41

421.10 Numerous and conflicting reasons given for Employee's discharge could give rise to inference that Employee fired because Employer considered him threat to status quo of worker--management relations.

YAMAMOTO FARMS, 7 ALRB No. 5

421.10 Where it was shown that the employer knew of the employee's union activities and sentiment, had an anti-union animus, and gave shifting reasons for its failure to rehire him, the Board found that the employee had been unlawfully discharged.

Golden Valley Farming, 6 ALRB No. 8

421.10 Employer's inconsistent and superficial excuses for failure to hire or consider hiring predecessor's employees warranted inference that employer's motives were discriminatory. RIVCOM CORPORATION and RIVERBEND FARMS, INC., 5 ALRB No. 55

421.10 Discriminatory Discharge upheld where Employer told Employee he was fired for lack of work and at hearing gave added rationale that Employee did not adequately understand and speak English but evidence showed Employee's command of English was better than another Employee who was kept on.

KITAYAMA BROS. NURSERY, 4 ALRB No. 85

421.10 Inconsistent explanations for discharge of Union activist evidences discrimination.

KITAYAMA BROS. NURSERY, 4 ALRB No. 85

421.10 Layoff of family violated 1153(c) and (a) where union (taking authorization cards and speaking with union representative in presence of employer ranch superintendent) preceded layoff notice by 20 minutes, and employer's explanation riddled within consistencies and contradictions. ANDERSON FARMS COMPANY, 3 ALRB No. 67

421.10 Foreman explained that family selected for layoff because grower wished to avoid dividing larger families contracted by payroll records demonstrating a contrast of sales and the hiring of new personnel subsequent to the layoff. ANDERSON FARMS COMPANY, 3 ALRB No. 67

421.10 Where the preponderance of the evidence employer knowledge of the Union activities and sympathies, and inconsistent or shifting reasons for the layoff of the employees, the Board held that the employer had unlawfully laid off the employees in violation of section 1153, subdivisions (a) and (c).

MAGGIO-TOSTADIO, INC., 3 ALRB No. 33

421.10 Employer's proffering of false motive for discharge gives rise to inference that real motive is being concealed because it is illegal one. BABBITT ENGINEERING & MACHINERY v. ALRB (1984) 152 Cal.App.3d 310

421.10 Employer's reasons for discharge discredited where employee was never warned that poor work would result in discharge and employer shifted its reasons for discharge during hearing.

BABBITT ENGINEERING & MACHINERY v. ALRB (1984) 152 Cal.App.3d 310

421.10 Inconsistent reasons put forward by employer for refusing to hire union supporters strengthens inference of unlawful motive.

RIVCOM CORP. v. ALRB (1983) 34 Cal 3d. 743

421.10 Where Board concludes that employer's purported business justification is pretextual, Wright Line analysis has no meaning, since union animus is the only true cause.

RIVCOM CORP. v. ALRB (1983) 34 Cal 3d. 743

421.10 Finding that employer's reason for discharging employee was a "pretext" is merely another way of stating that there was no sufficient business justification.

BROTHERS DISTRIBUTORS v. ALRB (1981) 29 Cal.3d 721

421.10 Apparently justifiable ground for layoff may in fact be pretext for unlawful discrimination. TEX-CAL LAND MANAGEMENT, INC. v. ALRB (1979) 24 Cal.3d 335

421.11 Notice, Warning, Or Investigation; Consultation With Supervisors

421.11 Summary, adversarial nature of discharge where Respondent had never discharged employees for same offenses, indicative of unlawful motivation.

M. Curti & Sons, 19 ALRB No. 18

421.11 Finding of discrimination evidenced by failure of employer to investigate complaints against employees or allow the employees to give their side of the story before imposing discipline.

CONAGRA TURKEY CO., 18 ALRB No. 14

421.11 When an employee is terminated for three acts of misconduct, one of which is proven to be protected activity under the Act, employer has not proven by a preponderance of the evidence that the employee would have been terminated solely on the basis of the remaining two acts of misconduct.

MIKE YUROSEK & SON, INC., 9 ALRB No. 69

421.11 Since employer had no system of giving written reprimands or written warnings to employees, employer's lack of documentation of employees' un-satisfactory work does not tend to prove discriminatory motive for layoff.

MONROVIA NURSERY COMPANY, 9 ALRB No. 15

421.11 In determining if discharge was discriminated; several factors are significant: (1) timing of discharge is near alleged discriminatory act; (2) other 1153 violations in same time period; (3) anti-Union animus on part of Employer; (4) discharge is without prior warnings and (5) shifting reasons for discharge.

DEL MAR MUSHROOMS, INC., 7 ALRB No. 41

421.11 Where the employer failed to even interview our independent witness of an altercation between an employee and a supervisor who had given conflicting accounts of the incident, and the employer was well aware of the employee's union activities, the Board found the employee's discharge unlawful.

SUNNYSIDE NURSERIES, INC. 6 ALRB No. 52

421.11 Employer's reasons for discharge discredited where employee was never warned that poor work would result in discharge and employer shifted its reasons for discharge during hearing. BABBITT ENGINEERING & MACHINERY v. ALRB (1984) 152 Cal.App.3d 310

421.12 Condonation Of Misconduct

421.12 No condonation where employer rehired employee on day after employee's discharge for threatening owner, since employer was attempting to mitigate potential backpay liability and was genuinely surprised to learn that employee was rehired in subsequent season. MARTORI BROTHERS DISTRIBUTORS v. ALRB (1981) 29 Cal.3d 721

421.12 Condonation is properly invoked only when there is clear and convincing evidence that employer has forgiven employee, intending to wipe slate clean. MARTORI BROTHERS DISTRIBUTORS v. ALRB (1981) 29 Cal.3d 721

421.13 Penalty For Refusal To Combat Union

421.13 Knowledge of foreman's refusal to commit ULP is imputed to higher management officials where there is no evidence that such information was not passed on.

GEORGE LUCAS & SONS, 11 ALRB No. 11 (See 13 ALRB No. 4)

421.13 Supervisors are not generally entitled to protections of the Act; an exception exists where supervisor is fired for refusing to commit an unfair labor practice.

GEORGE LUCAS & SONS, 11 ALRB No. 11 (See 13 ALRB No.4)

421.14 Reinstatement Offered Or Refused; Conditions Imposed

421.14 Adoption of documentation procedures for identifying returning ULP strikers reasonable in light of extended passage of time since inception of strike and limitations on contemporaneous court injunction ordering employer to reinstate only those strikers who had previously submitted written offers to return; delays in reinstatement resulting from such procedures to be remedied in compliance phase of earlier case.

LU-ETTE FARMS, INC., 10 ALRB No. 20

421.14 Employee was fired because he failed to respond to a recall notice in a timely manner.

D'ARRIGO BROTHERS COMPANY OF CALIFORNIA, 9 ALRB No. 3

421.14 Offer to return to work upon recall not conditional since Employees' could not return until Respondent accepted offer by recalling them.

COLACE BROTHERS, INC., (1982) 8 ALRB No. 1

421.15 Availability Of Work

421.15 Additional requirement in refusal to rehire cases that application be made when work is available is satisfied where employer had policy of contacting former employees when work available and by stipulation that work available at time of application or shortly thereafter.

GIANNINI PACKING CORP., 19 ALRB No. 16

421.15 Number of new hires after layoff misleading as indicator of need to rehire crew since it does not account for turnover, nor reflect fact that daily totals of number of people working were significantly less than at time of layoff. This, coupled with lack of evidence of discriminatory layoff, precludes finding discriminatory refusal to rehire.

SUMA FRUIT INT'L (USA), INC., 19 ALRB No. 14

421.15 Fact that record reflects that some work was available when discriminatee sought rehire is sufficient, along with other factors, to support violation. Exact amount of work denied may be left to be determined in compliance phase. OASIS RANCH MANAGEMENT, INC., 18 ALRB No. 11

421.15 An employer violates section 1153(c) by discriminatorily refusing to offer a permanent job to a temporary-hire employee who applies for the vacancy during his temporary job and again after the lawful termination of his temporary job; General Counsel not required to show availability of work.

MATSUI NURSERY, INC., 11 ALRB No. 10

421.15 Additional evidence of availability of work not necessary where labor contractor had, at time of refusing rehire, expressed anger that returning discriminatee was to participate in representation case hearing.

VISALIA CITRUS PACKERS, 10 ALRB No. 44

421.15 Employer's defense of lack of available work rejected where work was available only to anti-union employees after union won election. PIONEER NURSERY, 10 ALRB No. 30

421.15 Where employer's payroll records showed it continued to hire pruners after previously discharged protesters applied, Board inferred that work was available when protesters applied.

SUMNER PECK RANCH, INC., 10 ALRB No. 24

421.15 General Counsel failed to meet burden of proving that work was available when applied for; directive from employer to its foreman not to hire employee was not inconsistent with assertion that work was unavailable when reemployment was sought.

SIGNAL PRODUCE COMPANY, 10 ALRB No. 23

421.15 Delay of one week in rehiring union supporter who had returned from vacation in Mexico was not discriminatory.

PAUL BERTUCCIO, 10 ALRB No. 10

421.15 Employer's defense that it denied available field work to five discriminatees because they had no experience in such work was discredited, in part by its employing new workers with no prior experience to do the field work.

PAUL BERTUCCIO, 10 ALRB No. 10

421.15 Employer successfully showed that its assignment of miscellaneous shed work to workers other than alleged discriminatees was based on legitimate, nondiscriminatory reasons. PAUL BERTUCCIO, 10 ALRB No. 10

421.15 Employer's defense of lack of available work rejected where work was available only to anti-union employees after union won election.

PIONEER NURSERY, 9 ALRB No. 44

421.15 An employee named as a discriminatee, who failed to testify at the hearing, was placed by a disinterested witness out of the country at the time he allegedly requested reemployment; the ALJ's unexplained credibility resolution was insufficient to establish that the employee made a timely application for employment.

ARAKELIAN FARMS, 9 ALRB No. 25

421.15 Respondent claimed Union supporter not rehired because he lost his seniority by not applying for work within 3 days of start of season and because no work available when he reapplied. But Respondent's records showed others hired despite not reporting within 3 day period and that others were hired at same time Union supporter was turned down. Respondent's anti-union animus was a contributing factor to the finding of violation.

VERDE PRODUCE COMPANY, 7 ALRB No. 27

421.15 Board rejects ALO's finding that work available when Employee confronted Employer immediately following layoff and Employer did not need to augment crew until at least 3 days later.

GIUMARRA VINEYARDS, INC., 7 ALRB No. 17

421.15 Where the employer hired six employees to work during the poinsettia season, laid-off the employees upon the conclusion of that season, but later recalled the employees and offered them permanent jobs, the Board found that the original lay off was not unlawful.

SUNNYSIDE NURSERIES, INC., 6 ALRB No. 52

421.15 Availability of work need not be shown where employer's statements make pursuit of reemployment appear futile.

C. MONDAVI & SONS, dba CHARLES KRUG WINERY 5 ALRB No. 53

421.15 Where a group of three employees was transferred from packing to picking grapes during a slowdown, the transfer did not violate the provisions of a collective bargaining contract or any company policy, and, there was no evidence that the transfer was intended to inhibit employee organization, the Board refused to find that the transfer of a Union supporter within the group of three was unlawful.

KARAHADIAN RANCHES, INC., 5 ALRB No. 37

421.15 Discharge of union activist found discriminatory where discharge occurred immediately upon employer's discovery of employee's union activity; employer made anti-union statements; work was clearly available; and discharge was based on fabricated charge of theft. BABBITT ENGINEERING & MACHINERY v. ALRB (1984) 152 Cal.App.3d 310

421.15 No violation where only evidence supporting inference of causal connection was fact that 5 out of 6 employees laid off were known union supporters, since employer showed that employees were laid off due to lack of work.

GEORGE ARAKELIAN FARMS v. ALRB (1980) 111 Cal.App.3d 258

421.15 Employer's change in hiring policy from legal alien workers to "illegal " workers was unlawful where legals were considered by employer to be union supporters, employer displayed anti-union animus, and former legal employees made numerous unsuccessful efforts to obtain reemployment when suitable jobs were available.

KAWANO, INC. v. ALRB (1980) 106 Cal.App.3d 937

421.16 Replacement Of Employees; Labor Shortage Or Busy Season; Key Employees

421.16 Employer's knowledge of protected activity, past history of anti-union animus, and unusual hiring of intermittent workers indicated that discrimination was a motivating factor.However, employer met its burden of proving that due to lack of seniority and the genuine need for intermittent workers, the employee would have been denied rehire even absent his protected activity.

SAM ANDREWS' SONS, 11 ALRB No. 5

421.16 Employer discriminated when it laid off crew but transferred six employees with less seniority than discriminatee to other crew and continued to hire workers for other crews. SAM ANDREWS' SONS, 3 ALRB No. 45

421.16 Board properly rejected employer's business justifications for failing to hire predecessor's employees where no credited basis existed to support purported preference for group of workers employer knew from other operations.

RIVCOM CORP. v. ALRB (1983) 34 Cal 3d. 743

421.17 Seniority

421.17 The General Counsel failed to establish that three foremen were denied rehire as a method of discriminating against their crews, where there was no evidence that the foremen applied for work at a time when work was available, and the employer's statement of possible recall was insufficient to establish this element of the prima facie case. SEQUOIA ORANGE CO., 11 ALRB No. 21

421.17 Employer's business justification for discharge of two employees--that they were among five employees with lowest seniority--is pretextual, since discharge closely followed the two employees' participation in union activities, and other employees with less seniority were rehired in the following few days.

CLARK PRODUCE, INC., 11 ALRB No. 19

421.17 Employer's knowledge of protected activity, past history of anti-union animus, and unusual hiring of intermittent workers indicated that discrimination was a motivating factor. However, employer met its burden of proving that due to lack of seniority and the genuine need for intermittent workers, the employee would have been denied rehire even absent his protected activity.

SAM ANDREWS' SONS, 11 ALRB No. 5

421.17 Employer had no established or observed seniority system which gave alleged discriminatees a "bumping privilege."

SIGNAL PRODUCE COMPANY, 10 ALRB No. 23

21.17 Employer, in denying discriminatees available field work, failed to follow its policy of giving its workers preference over those supplied by a labor contractor.

PAUL BERTUCCIO, 10 ALRB No. 10

421.17 Employer's discriminatory layoff of Union supporters, and of several other co-workers, as disguise for layoff of pro-Union employees, was unlawful. Employees' seniority found to be pretext for layoffs. ABATTI FARMS, INC., and ABATTI PRODUCE, INC., 7 ALRB No. 36

421.17 Company had system where closer from previous season would have seniority as cutter and packer the next season if he knew how to do job. Discrimination shown where Union supporter with seniority seeking work as a cutter and packer, a job he had previously done, was denied work during a time when new hires were added to crew.

VERDE PRODUCE COMPANY, 7 ALRB No. 27

421.17 General Counsel failed to establish discriminatory layoff where the record evidence is at least as consistent with employer's contention that employee was laid off because of his low seasonal seniority, for valid business reasons, and as to employer's failure to rehire employee, the record fails to show that employee made a proper application for work at a time when work was available.

MARIO SAIKHON, INC., 5 ALRB No.30

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