Holsum De Puerto Rico, Inc. v. National Labor Relations Board

United States Court of Appeals
For the First Circuit
No. 05-2025
HOLSUM DE PUERTO RICO, INC.,
Petitioner, Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, Cross-Petitioner.
PETITION FOR REVIEW AND CROSS-PETITION FOR ENFORCEMENT
OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Before
Selya and Lipez, Circuit Judges,
and Saylor, District Judge. *
Howard S. Linzy, with whom The Kullman Firm was on brief, for
Holsum de Puerto Rico.
Amy H. Ginn, with whom Meredith L. Jason, Supervisory
Attorney, was on brief, for the Board.
August 8, 2006
____________
Of the District of Massachusetts, sitting by designation. *

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While Holsum only contests the Board's order as it relates to 1
Torres, the company does argue that the evidence before the Board
was insufficient to support a finding of anti-union animus. Holsum
also makes a cursory argument that there was no causal connection
between any such animus and Torres's termination. These
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LIPEZ, Circuit Judge. As a result of the company's
response to a union organizing campaign, the United Auto Workers
International Union filed an unfair labor practices charge against
Holsum de Puerto Rico, Inc. General Counsel for the National Labor
Relations Board then commenced a regulatory enforcement action.
After extensive testimony, an administrative law judge determined
that Holsum had engaged in unfair labor practices and had
terminated employees illegally. See 29 U.S.C. § 158(a)(1)-(3).
With a slight exception not important here, the Board adopted the
judge's findings and conclusions as its own. Before us, Holsum
does not contest most of the Board's findings. However, it does
petition for review of the Board's conclusion that José Torres, a
leader of the unionization effort, was fired as a sanction for his
protected activity, and the Board's related order that Torres be
reinstated to his job at Holsum. The Board cross-petitions for
enforcement of its entire order. We reject Holsum's petition and
grant the Board's.
I.
We review the background facts as the Board found them,
focusing on the facts involving Torres. Most of these facts are
not disputed here. Holsum is a commercial bakery, selling bread 1

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undeveloped arguments, which are plainly belied by the evidence,
are too insubstantial to warrant discussion.
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and other products to retailers in Puerto Rico. Torres and José
Santiago were salesmen for Holsum. Their duties included driving
company trucks and delivering baked goods to clients. In the
summer of 2002, Torres, Santiago, and some other Holsum salespeople
began to talk about forming a union. From the beginning, Santiago
took the lead in scheduling meetings, and Torres led the drive to
recruit other salespeople to join the union. Initially, Torres
recruited other employees informally. By the fall of 2002,
however, Torres had begun handing out union authorization cards and
telling his coworkers that "the union could better represent their
interests."
Holsum had a "union avoidance policy," and its management
quickly began observing and discouraging the salespeople's
unionization campaign. Private investigators working for the
company observed one of the early organizational meetings. Then,
in September 2002, Holsum's president, Ramón Calderón, sent a
letter to his employees stating that a group of dissatisfied
employees had "attacked" the company, creating "a serious threat to
your job, your future and the future of your family." The letter
-- which the Board did not find was improper in and of itself but
which surely shows the company's feelings about the unionization
effort -- concluded by instructing employees to read and abide by

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the company's "union avoidance policy," and to say "'NO' to the
union agitators."
Shortly after this letter was sent, Holsum supervisors
confronted Torres, Santiago, and several other employees to ask
them what they thought about the letter. These inquiries, in
combination with other facts, led the Board to conclude that the
company had illegally interrogated its workers. When Torres was
interrogated about the letter, the conversation quickly became
antagonistic. Torres refused to tell his supervisor what he
thought of the letter, the supervisor persisted in his questioning,
and ultimately Torres told the supervisor that he could not answer
without "compromis[ing] himself." The acrimonious interrogation
did not stop Torres's efforts on behalf of the nascent union.
Until his discharge in the spring of 2003, Torres spent "almost
every afternoon" in the company parking lot, soliciting his fellow
employees to sign union authorization cards.
In April 2003, Torres was fired. Holsum maintains that
it terminated Torres because he violated the company's rule against
letting non-employees ride in company trucks. Crediting Torres's
uncontradicted account, the Board found that one day in late April
a man jumped into Torres's truck while Torres was waiting for a
traffic light to change. Torres told the stranger to get out of
the truck. The passenger refused to leave and demanded a ride to
the next traffic light (in the direction Torres was traveling).

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Torres insisted that the person leave the truck and told him that
he was prohibited by company policy from transporting passengers.
Still, the passenger would not get out, and Torres would not have
been able to remove him without resorting to physical force. The
light changed, and cars behind the truck started honking. Torres
decided that it would be better to transport his unwanted passenger
a short distance than to have a physical fight with him in the
middle of an intersection. The passenger jumped out of the truck
when he reached his intended destination, and Torres continued on
his route.
A Holsum supervisor observed the unwanted passenger's
brief ride on Torres's truck. When Torres returned to Holsum's
warehouse, another supervisor told him that he had been seen with
an unauthorized passenger. The supervisor asked Torres to fill out
a written report describing the incident. Torres did as he was
asked. When Torres arrived at work the next day, two supervisors
confronted him and told him that he was suspended without wages or
health benefits. The supervisors also instructed Torres to return
to the plant the following week for a hearing.
The next week, Torres arrived at the plant at the time he
had been told to come, bringing with him a man whom he introduced
as his union representative. While Torres had been scheduled to
meet with Holsum's Human Resources Director, he was told upon
arriving with his union representative that the director was

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unavailable and that he would have to meet with a junior
supervisor. He also was told that he would not be allowed to bring
the union representative with him. The meeting was short. The
supervisor simply told Torres that he had been fired, and then
said, "Well, that's all." While Torres asked for a letter
explaining the reasons for his discharge, Holsum personnel neither
furnished such a letter nor explained to Torres why he had been
fired.
A few days after Torres was fired, a Holsum supervisor
confronted Santiago as he was loading his truck. The supervisor
asked Santiago if he knew that Torres had been fired. When
Santiago nodded, the supervisor said that Santiago should "be
careful" and "take care of his job" because "he was going to be
next." A few days after this conversation, Calderón sent another
anti-union letter to Holsum's employees. This letter stated that
the company had learned "in the past several days" that "a union
continued to threaten the future and security of the Holsum
families." Again, the company interrogated its employees about
their reactions to the letter.
Later that month, Holsum fired Santiago. Before the
Board, Holsum argued that it had terminated Santiago for his
unauthorized distribution of six cups of hot coffee to a group of
non-employees, including Torres, who were soliciting for the union
outside the plant. The Board concluded that "the real reason

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Santiago was discharged was that . . . he gave [] coffee to persons
who were distributing 'union propaganda against the Company.'"
II.
Under the National Labor Relations Act, it is illegal to
fire an employee "to encourage or discourage membership in any
labor organization." 29 U.S.C. § 158(a)(3). When the NLRB's
General Counsel brings regulatory enforcement proceedings to
contest an employee's termination for union activity, the General
Counsel bears the initial burden of showing "that the employee's
protected conduct was a substantial or motivating factor" for the
employee's discharge. NLRB v. Transportation Management Corp., 462
U.S. 393, 401 (1983) abrogated in part and clarified by Director,
Office of Workers' Compensation Programs v. Maher Terminals, Inc.,
512 U.S. 267, 276-78 (1994). The General Counsel satisfies this
burden by showing: (1) that the employee engaged in protected
activity; (2) that the employer was aware of the employee's
protected activity; (3) that the employer had animus against such
activity; and (4) a causal connection between the employer's animus
and the employee's termination. See id. at 401-03; E.C. Waste,
Inc. v. NLRB, 359 F.3d 36, 42 (1st Cir. 2004). The General Counsel
does not have to show that the employee's protected union activity
"was the sole factor" for the discharge. NLRB v. Hospital San
Pablo, Inc., 207 F.3d 67, 70 (1st Cir. 2000).

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In proceedings like this one, the administrative law judge, the 2
person who hears testimony and sees the witnesses, makes the
credibility judgments. See 29 C.F.R. §§ 102.34-102.35. A party
that disagrees with the judge's findings may file "exceptions."
See 29 C.F.R. § 102.46. The Board then determines whether the
excepted-to findings should be modified or adopted. The Board
normally accomplishes such a review on the paper record, but it has
the power to reopen the record and to hold hearings. See 29 C.F.R.
§§ 102.48-102.50.
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If the General Counsel meets this burden -- and by so
doing establishes a "prima facie case" that the employee was fired
illegally -- the employer can defeat liability only by proving that
"it would have taken the same action in the absence of the
protected activity." E.C. Waste, 359 F.3d at 42. But the Board
"does not have to accept" even "a seemingly plausible explanation"
from the employer. Id. "If the Board supportably finds that the
reasons advanced by the employer are either insufficient or
pretextual, the violation is deemed proven." Id. The employer
then has limited recourse in this court. We are bound by all of
the Board's factual findings "as long as those findings are
supported by substantial evidence." Id. And we are especially
reluctant to question any credibility judgments made in the
regulatory setting. Id.2
Despite the Board's findings, Holsum continues to argue
that its termination of Torres was permissible. Holsum alleges two
errors by the Board. The company contends that there was no
substantial evidence that it knew about Torres's protected
activity, and that it would have fired Torres for allowing a

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stranger to ride in his truck even if Torres had not engaged in any
protected activity.
A. Holsum's Knowledge of Torres's Union Activity
We are unconvinced by Holsum's contention that
substantial evidence did not establish the company's awareness of
Torres's efforts on behalf of the union. The company criticizes
the administrative law judge for inferring that a Hoslum
supervisor, who on one occasion observed Torres standing in the
company parking lot for about fifteen minutes, had personally
observed Torres's efforts to recruit other employees for the union.
As Holsum points out, there is no evidence that Torres actually
encouraged any other employees to join the union during these
minutes. Still, as the Board found, there would have been many
other occasions when Holsum personnel could have observed Torres's
recruitment efforts. In the administrative law judge's words,
Torres "conducted his union activities, including his solicitation
and distribution of union cards to other employees, out in the open
in [Holsum]'s parking lot, in plain view of those entering or
leaving [Holsum]'s facility. His activities, therefore, could very
well have been observed by any number of supervisors and managers
. . .." In short, Torres was a visible and vocal leader in a
unionization effort that the company was monitoring and stridently
opposing.
We have allowed the Board to infer knowledge of protected

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activity from no more than this. In Hosp. San Pablo, the Board
found that an employer had knowledge of the union affiliation of an
employee who had:
started distributing cards to other employees
in the Hospital's stairways, bathrooms, empty
rooms, and machine rooms, but not in plain
sight of the supervisors[,] gave out cards at
the entrance to the Hospital at the start of
work and in the parking lot at lunch, and []
met with employees to discuss the union, both
at the Hospital and away. Some meetings were
held near the cafeteria, close to the Hospital
administration office . . ..
207 F.3d at 71. We said that the Board could find that the
employer had knowledge of the employee's protected activity, even
though there was no direct evidence that supervisors actually
observed the activity. We noted:
At a minimum, [the terminated employee] was a
committed union activist and actually
solicited co-workers at the Hospital, and it
is reasonable to believe that someone dropped
a hint, if not more, to management. Human
nature is not to the contrary. Cf. NLRB v.
Magnesium Casting Co., 668 F.2d 13, 16 (1st
Cir. 1981). Direct evidence of an employer's
knowledge of an employee's union activity is
not needed; inferences may be used to
establish the knowledge. See [NLRB v.] South
Shore Hosp. 571 F.2d [677,] 683 [(1st Cir.
1977)] (“It is now well established that such
knowledge need not be based on direct personal
observation, but can be inferred from the
facts and circumstances involved.”).
Id. at 74. Here, it is equally clear that the Board could infer

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Holsum's knowledge of Torres's protected activity from the facts in
the record.
B. Pretext
We are also unswayed by Holsum's contention that there
was insufficient evidence to find that its stated reason for firing
Torres was pretext. Holsum's argument relies on its assertion that
the company had a "one strike and you're out" policy for violations
of its "no-helper" rule, and that Torres would have been fired
pursuant to this rule even if he had not been involved with the
union. The Board simply did not believe either half of this
argument, which was presented through the testimony of Holsum
supervisors. Rather, the Board adopted the administrative law
judge's conclusion that "no credible evidence was presented by
[Holsum] to show that it ever had a 'one strike, you're out' rule"
for "violations of the no-helper policy," and that if Torres had
not been a union sympathizer he "at most, would only have received
either a warning or a suspension" for the incident with the
unwanted passenger. We describe briefly why the Board's
conclusions have sufficient support in the record.
First, there were reasons for the Board to disbelieve
testimony that there was a "one strike" policy for unauthorized
transport of passengers. In attacking this credibility judgment,
Holsum focuses on evidence suggesting that the company had
terminated other employees for violating the no-helper rule. But

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there was no evidence that the previously-terminated employees were
similarly situated to Torres -- for example that they had committed
only a single violation of the policy. On the other hand, there
was a documented case in which a Holsum salesman had driven around
all day in his company truck with his cousin as an unauthorized
passenger, but that employee was not fired. There was also
evidence that the company had informed supervisors and employees
that a warning could be given for violations of the no-helper
policy.
Second, there was also evidentiary support for the
Board's expressed doubts that Torres's brief, unwanted transport of
his uninvited passenger would have been grounds for termination if
Torres had not been a union leader. There was no evidence that any
previously-terminated employee had been guilty of such an
insubstantial violation of the policy against unauthorized
passengers. And there was no showing that the no-helper policy was
so inflexible as to force an employee to stop his truck in the
middle of an intersection and physically accost an intruder.
Third, there was additional evidence from which the
Board permissibly could infer that the company's true motivation
for firing Torres was his union activity. The company capitalized
on Torres's termination as an opportunity to intimate to Santiago
that Torres had been fired as retaliation for his union leadership.
The company also intensified its anti-union activities in the days

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after Torres's firing, plausibly indicating that the effort to oust
Torres was part of a concerted push to end the unionization drive.
Finally, the company terminated Santiago only weeks after Torres's
discharge, plausibly indicating that the company had decided in the
spring of 2003 to rid its workforce of union enthusiasts. Given
all of this evidence, we cannot say that there was insufficient
support for the Board's conclusions that Holsum's stated reason for
firing Torres was pretextual, and that Torres's protected conduct
was a substantial or motivating factor in his discharge.
III.
Holsum's petition for review is denied. The Board's
cross-petition for enforcement is granted.
So ordered.

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