CASE FARMS OF NORTH CAROLINA

Case Farms of North Carolina, Inc. and Western
North Carolina Workers’ Center. Cases 11–CA–
21378 and 11–CA–21379
September 30, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On September 28, 2007, Administrative Law Judge
John H. West issued the attached decision. The General
Counsel and the Respondent each filed exceptions, a
supporting brief, and an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with
this Decision and Order.1
The complaint in this case alleges that the Respondent
violated Section 8(a)(1) of the Act by discriminatorily
discharging employees Luz Rodriguez and Evodia Dimas
a/k/a Claudia Zamora2 because they engaged in the protected concerted activity of complaining to the local
press about employees’ working conditions. The judge
concluded that Rodriguez’ discharge was unlawful, but
that Dimas’ discharge was not. We conclude that the
Respondent violated the Act by both discharges.3
I. FACTS
A. The Work Stoppage
The Respondent operates a poultry processing plant
with a predominately immigrant work force. Employees
wear latex gloves when handling the poultry. Prior to
October 27, 2006,4 the Respondent provided each employee unlimited latex gloves at no cost. On that date, it
limited each employee to three free pairs per day. Em1
Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2
As discussed below, Dimas was employed under the false identity
of Zamora from September 11, 2006, until her discharge on October 30,
2006. She will be identified by her true name of Dimas, except when
context requires reference to Zamora.
3
There are no exceptions to the judge’s dismissal of an allegation
that the Respondent violated Sec. 8(a)(1) by threatening to report employees to the Immigration and Naturalization Service and his denial of
the General Counsel’s motion to amend the complaint to allege that the
Respondent violated Sec. 8(a)(1) by conditioning employees’ continued
employment on their abstention from future concerted activity.
4
All subsequent dates are in 2006, unless otherwise stated.

353 NLRB No. 26

257

ployees requiring gloves beyond that number would have
to pay 50 cents a pair.
The same day, over 250 employees, including Rodriguez and Dimas, commenced an in-plant work stoppage
to protest the glove policy change. The Respondent repeatedly told the employees to return to work or leave
the plant. When they did neither, the Respondent summoned police, who peacefully escorted the employees off
the premises.
The employees then gathered at a nearby church to
discuss their concerns. While there, Rodriguez and Dimas spoke to newspaper reporters about the work stoppage and a range of employee grievances in addition to
the glove policy. On Sunday, October 29, the local
newspaper published an article about the work stoppage.
Rodriguez and “Zamora” (Dimas) were quoted by name.
The article described Rodriguez as the employees’
spokesperson. It also reported Zamora as saying that
“workers are routinely told to ignore notes from doctors
about work restrictions when they’ve been injured on the
job.” No other employees were named in the article.
All employees who walked out were permitted to return to work with no discipline on Monday, October 30.
That morning, Human Resources Manager Victoria Soto
King received an e-mail copy of the newspaper article
from a company public relations official. King discharged Dimas at the end of the day, allegedly in response to an injury accommodation request. King suspended Rodriguez on October 31 and discharged her 3
days later, allegedly for misconduct on the production
line.
B. The Discharge of Dimas/Zamora
Dimas began working for the Respondent in 1999.
She was terminated for 3 consecutive days of unexcused
absence in October 2003. Terminated employees can
apply for rehire after 30 days. If rehired, they return to
work as new probationary employees. Dimas was rehired on that basis on February 6, 2004.
In early 2006, the Social Security Administration advised the Respondent that Dimas was using an invalid
social security number. In September, Dimas provided
the Respondent with new identification documents, including a matching social security number, falsely identifying her as Claudia Zamora.5
On Friday, September 8, 2006, the Respondent discharged Dimas. On Monday, September 11, it rehired
the same person as “Claudia Zamora.” Zamora’s job
application was prepared in part by King, who admit5
At the hearing, Dimas admitted the falsification. She also admitted
that she was not authorized to work in the United States when she
started working for the Respondent in 1999.

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

tedly knew Dimas/Zamora (hereinafter Dimas) during
her prior employment with the Respondent. Dimas went
back to work in the same job with the same supervisor.
The Respondent classified Dimas as a new probationary
employee at entry-level pay, but in less than a month it
raised her pay to the $8 hourly wage previously earned
by Dimas, near the Respondent’s top hourly rate of
$8.25. The payroll change notice for that raise, signed
by King, includes the remark “had previous poultry experience.” The Respondent’s orientation presentation,
prepared by King for new hires, states that the starting
hourly wage rate will be $7.30, with a raise after 2 weeks
to $7.55, and another raise at the end of the 90-day probationary period to $7.90.
During October, Dimas went several times to the Respondent’s medical station, complaining of pain in her
left shoulder, arm, and wrist. Raul Herrera, the Respondent’s newly hired safety director, oversaw the medical
station assisted by a plant aide. The plant aide generally
gave Dimas medication to relieve the pain and swelling,
and she returned to work.
On October 26, Dimas left work early because of continuing pain in her left arm. On her own initiative, she
went to a local clinic where she was examined by a physician’s assistant known as “Dr. Mike.” Although Dr.
Mike often examined employees sent to him by the Respondent’s safety department, he was also Dimas’ personal medical provider. Dr. Mike gave her a prescription
note, using the name “Claudia Zamora,” that recommended “light work or no work [left] arm for one week.”
Dimas did not present the medical note to the Respondent on October 27 due to the work stoppage. On October 30, Dimas presented the note to her supervisor, who
instructed Dimas to take it to the Respondent’s medical
station. Herrera gave Dimas a sling and sent her back to
work with instructions for her supervisor to assign her
tasks requiring use of her right arm only.
Herrera had only been hired in early October. Knowing only of an employee named Claudia Zamora, he did
not know about her prior work history as Dimas, which
included a multiweek work restriction due to left shoulder pain incurred on the job in February 2005. He testified that, after he gave her the sling, she gave him the
personal medical note from the clinic visit to Dr. Mike
that the safety department had not scheduled. When doing so, Dimas said her arm had been hurting for quite
some time. Herrera testified that this prompted him to
investigate. He discovered that Dimas (Zamora) had
only recently been hired. He summoned her to his office,
where he asked her to draft a statement describing how
and when the injury occurred and why she believed it

was work related.6 In her statement, Dimas said that
“[t]he pain began when I was about eight (8) months
doing the second cut. . . . I started work the 6th of February, 2003.”7 Noting that the statement described an injury preceding Dimas’ September 11 rehiring date,
Herrera referred the case to the human resources department for evaluation. Meanwhile, Dimas returned to her
restricted duty work assignment.
In the late afternoon, Herrera took Dimas to Human
Resources Manager King’s office, where King and Corporate Human Resources Director Armando Campos
were waiting. King testified that she informed Dimas
that “I didn’t have a job for her because she had a restriction, and that was a restriction noted on a personal doctor’s note.” When Dimas protested, King said, “Claudia,
you’re a probationary employee. You do not qualify for
a leave. If you had been more than—here more than 90
days, I had options for you, but I don’t. I can’t accommodate you[r] restrictions and, therefore, I don’t have a
job for you.”8 King has admitted that Dimas did not verbally request a leave of absence.
It is undisputed that probationary employees are not
entitled to take a leave of absence for any reason, including medical. Both King and Herrera testified about different procedures and policies for work- and nonworkrelated injuries and for handling personal doctors’ notes.
King testified that work-related injuries are handled by
the safety department, under Herrera’s direction, and
nonwork-related injuries are handled by human resources, under King’s direction. King acknowledged
that when new employees began work at the plant, they
often experienced pain in their arms and wrists from repetitive motions.
King said that she has advised supervisors not “to even
look at” any personal doctor’s note presented to them by
an employee, but to refer that employee instead to human
resources. Counsel for the General Counsel asked King
on cross-examination what she would do if an employee
presented her a note from a personal doctor seen during
the weekend for a work-related injury. King said she
would not consider the note, but would send the employee to Herrera to take over. She further testified that,
even if the employee was probationary, Herrera might
6
Although Herrera indicated that employees were routinely asked to
give a written statement about how and when they were injured, the
Respondent could produce only one other example of such a statement
from its files.
7
In fact, as previously stated, the Respondent first hired Dimas in
1999 and rehired her in 2004. Dimas obviously erred in her statement
that this later event was in 2003.
8
Dimas similarly testified that King told her she was unable to give
her leave because she was a new employee. Campos did not testify in
this proceeding.

 CASE FARMS OF NORTH CAROLINA

then send that employee to a company doctor because the
injury was alleged to be work related.
Herrera testified that the aches and pains of all employees who come to the medical station for attention are
initially treated as work related pending further evaluation. “[I]f we are not a hundred percent certain that it’s
work related or non-work related, just to help the employee and their health as we help them out at the time
the injury happened. Once we figure out if the injury
happened at work, or it happened outside work, then we
evaluate what route we’re going to take.” Work-related
injuries, including those suffered by probationary employees, have been accommodated by work restrictions
or by moving the employee to a different work area. In
fact, Herrera indicated that new employees generally
rotate through different areas of the plant in their department.
According to Herrera, “When it’s not a work related
injury and we have documentation stating that it’s not,
then we send it over to the Department of Human Resources to handle the situation.” However, at least one
probationary employee, Alisha Rutherford, received a
restricted duty assignment for a nonwork-related injury.
C. The Discharge of Rodriguez
On October 31, Rodriguez was working next to employee Dominique Johnson deboning chickens. Johnson
was to make a cut; Rodriguez would do a followup cut.
Johnson was not making her cut properly, so that Rodriguez could not further process the product. Rodriguez
returned the chicken to Johnson to rework it by throwing
it on the table in front of Johnson.
Johnson left the production line to complain to King
about the incident. After interviewing Johnson, Rodriguez, and two other witnesses about what had happened,
Human Resources Manager King concluded that Rodriguez had thrown the chicken. She suspended Rodriguez
until November 3 while King did a “job review” to determine the appropriate discipline for throwing product.
King testified that since she assumed her position as
plant human resources manager, there was a zero tolerance policy for throwing anything, including product.
However, she also testified that the most important item
in a job review is precedent, i.e., what the Respondent
has done in similar situations.
The record contains documentation of the discharges
of three employees for throwing product while involved
in horseplay. King admitted that Rodriguez was not engaged in horseplay. Three other employees were not
discharged for workplace throwing incidents. Employee
Marcelino Bulux received a verbal warning when he
threw and hit a coworker with pieces of ice. Employee
Juan Garza received a written warning when he picked

259

up an employee and threw him on the production line
where chicken is transported.9 Employee Cynthia Garza
received no discipline for hitting another employee in the
face with a chicken. Consistent with these examples,
Rodriguez’ supervisor, Raymondo, testified that he may
give a warning to an employee for throwing items.
Although King testified about the importance of
precedent and suspended Rodriquez for 3 days pending
an investigation to determine how her conduct should be
treated, she did not examine previous cases of employees
throwing things. Rather, she relied on the representations of higher-management officials. General Manager
Charles Rigdon told King that “throwing product has
always been termination, period.” Corporate Human
Resources Director Armando Campos told King that, “if
throwing product meant termination, then Rodriguez
should be terminated.” Based on this information, King
terminated Rodriguez on November 3. Neither Ridgon
nor Campos testified, and there is no evidence that either
reviewed past incidents.
II. THE JUDGE’S DECISION
The judge analyzed the unlawful discharge allegations
under the Wright Line10 test for discriminatory motivation. Under that test, “the General Counsel bears the
burden of proving by a preponderance of the evidence
that animus against protected conduct was a motivating
factor in the adverse employment action. If the General
Counsel makes a showing of discriminatory motivation
by proving protected activity, the employer’s knowledge
of that activity, and animus against protected activity,
then the burden of persuasion shifts to the employer to
prove that it would have taken the same action even in
the absence of the protected activity.” North Carolina
License Plate Agency #18, 346 NLRB 293, 293 (2006),
enfd. mem. NLRB v. Griffin, 243 Fed. Appx. 771 (4th
Cir. 2007), citing Donaldson Bros. Ready Mix, Inc., 341
NLRB 958, 961 (2006).
The judge found that the General Counsel established
both that Dimas and Rodriguez engaged in protected
concerted activity when they served as employee
spokespersons in complaining about working conditions
to the local newspaper,11 and that the Respondent was
aware of this activity when it discharged them. The
9
This incident occurred during King’s tenure as human resources
manager.
10
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983).
11
The judge found that this activity should be treated separately
from the group employee work stoppage in protest of the new glove
policy. He concluded that speaking to the press was protected concerted activity even if the work stoppage itself was unprotected. See fn.
11, infra.

 260

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

critical question for the judge was whether the General
Counsel had shown that animus against the employees’
protected concerted activity was a motivating factor in
the Respondent’s decision to discharge them. He rejected the General Counsel’s argument that the timing of
the discharges soon after the Respondent learned about
the newspaper article supported an inference of discriminatory motivation. The judge found that intervening
events precipitated by the employees themselves—
Dimas’ presentation of the medical note and Rodriguez’
chicken-throwing—dictated the timing of the Respondent’s actions.
For Dimas, the judge found that other circumstantial
evidence relied on by the General Counsel failed to prove
that her discharge was motivated by animus against her
for speaking to the press. The judge rejected the argument that treating “Zamora” as a probationary employee
was pretextual, emphasizing that Dimas and the Respondent completed her hiring on this fictional basis before
she engaged in protected activity. The judge also rejected the General Counsel’s claim of disparate treatment
in the Respondent’s handling of Dimas’ medical situation, absent “evidence that Respondent ever accommodated an employee based on a note that the employee
obtained from her own personal physician.” Finally, the
judge found that the Respondent’s interpretation of Dimas’ personal medical note as requesting a leave of absence was not unreasonable, even though the note did not
mention such a leave and Dimas did not verbally request
one. Although he found that Dimas’ discharge was not
unlawful, the judge further observed that the Supreme
Court’s decisions in Sure-Tan, Inc. v. NLRB, 467 U.S.
883 (1984), and Hoffman Plastic Compounds, Inc. v.
NLRB, 535 U.S. 137 (2002), would in any event preclude
reinstatement or backpay for Dimas because of her admitted use of a false social security number to obtain her
job and a false identity to retain it.
The judge reached a different conclusion with respect
to Rodriguez. He noted that King testified that precedent
was the most important factor in assessing Rodriguez’
conduct, but that King had not independently reviewed
prior personnel decisions regarding throwing product.
He also found that the General Counsel proved a “blatant” disparity between the Respondent’s treatment of
Rodriguez and its treatment of other employees who
threw product or other items. Even without any independent violations of the Act, the judge found that the
evidence showing a failure to investigate and disparate
treatment warranted the inference of a motivation to discriminate against Rodriguez for engaging in protected
activity. In light of the evidence of disparate treatment,
the judge further found that the Respondent failed to

meet its Wright Line rebuttal burden of showing that it
would have discharged Rodriguez even in the absence of
her protected activity.
III. ANALYSIS
We affirm the judge’s findings that Rodriguez and
Dimas engaged in protected concerted activity12 and that
the Respondent unlawfully discharged Rodriguez for this
activity soon after King learned about it. However, we
disagree with his rejection of the timing factor as circumstantial evidence supporting the General Counsel’s initial
Wright Line showing of discriminatory motivation for
both discharges. We also conclude, contrary to the
judge, that the General Counsel has proved that the Respondent discharged Dimas in retaliation for her role in
the same protected activity, and that the asserted reasons
for the discharge were pretextual.13
A.
It is well established that discriminatory motive may
be demonstrated by circumstantial evidence based on the
record as a whole.14 “To support an inference of unlawful motivation, the Board looks to such factors as inconsistencies between the proffered reasons for the discipline and other actions of the employer, disparate treatment of certain employees compared to other employees
with similar work records or offenses, deviations from
past practice, and proximity in time of the discipline to
the union [or other protected concerted] activity.” Robert
Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004),
enfd. mem. 184 Fed. Appx. 476 (6th Cir. 2006). The
Board frequently finds that the timing factor supports an
inference of animus and discriminatory motivation,15
particularly where an employer simultaneously dis12
The protection of Sec. 7 of the Act may encompass employee
communications about labor disputes with newspaper reporters. See,
e.g., Hacienda de Salud-Espanola, 317 NLRB 962, 966 (1995). Inasmuch as we agree with the judge that this activity by Rodriguez and
Dimas was severable and independent from the work stoppage, we
need not pass on the Respondent’s exceptions to the judge’s failure to
find that the work stoppage lost the protection of the Act.
13
The General Counsel has excepted to the judge’s questioning of
Dimas’ credibility because she obtained and retained her job on fraudulent bases. However, we agree with the judge that the legality of Dimas’ discharge can be determined without resolving the credibility of
her testimony. We therefore do not rely on the judge’s discussion in fn.
15 of his opinion of Dimas’ credibility and of Double D Construction
Group, 339 NLRB 303 (2003).
14
E.g., Fluor Daniel, Inc., 304 NLRB 970, 970 (1991), enfd. 976
F.2d 744 (11th Cir. 1992).
15
E.g., State Plaza Hotel, 347 NLRB 755, 755 (2006), citing Naomi
Knitting Plant, 328 NLRB 1279, 1281 (1999). The Board has stated
that in some cases timing alone is sufficient to show that animus against
protected activity is a motivating factor in a discharge. E.g., Sears,
Roebuck & Co., 337 NLRB 443, 443 (2002). In the present case, however, we find that the timing of the discharges at issue is just one of
several circumstantial factors demonstrating discriminatory motivation.

 CASE FARMS OF NORTH CAROLINA

charges multiple employees for unrelated reasons.16 That
is the situation in the present case.
King learned on October 30 that Dimas and Rodriguez
had voiced complaints about employee working conditions to the local press. She terminated Dimas the same
day, and she suspended Rodriguez, later to discharge her,
the very next day. The discharge and suspension in less
than 48 hours of the only two individuals identified in the
newspaper article is strong evidence of an unlawful motive. See, e.g., Dickens, Inc., 352 NLRB 667, 667 1 fn. 3
(2008) (concluding that timing of employee’s discharge
2 days after his protected activity supported finding of
unlawful motivation); Sawyer of Napa, Inc., 300 NLRB
131, 150 (1990) (inferring antiunion motivation from
discharge of two employees only 2 working days after
learning of their union sympathies).
Contrary to the judge, that inference of unlawful motivation is not negated merely because actions by Rodriguez and Dimas occurring after their protected activity
assertedly precipitated their discharges. The Board “does
not find that the timing factor necessarily favors a respondent whenever the discipline is imposed . . . immediately following the alleged infraction. An employer
might wait for a pretextual opportunity to discipline an
employee for engaging in protected activity.” Naomi
Knitting Plant, supra at 1282 fn. 18. The Board evaluates all the circumstances of a particular case to determine whether the timing of the employer’s actions suggests that it seized an opportunity to mask its true motivation. This case-by-case approach explains why the
judge erroneously relied on Woodruff & Sons, 265
NLRB 345 (1982), affd. mem. Scurek v. NLRB, 717
F.2d 1480 (D.C. Cir. 1983), to support his timing analysis here.
In Woodruff & Sons, the employer discharged alleged
discriminatee Scurek immediately after he caused major
damage to his truck and a few days after he voiced pay
complaints and filed an assault charge against his supervisor. The employer had repeatedly warned Scurek for
reckless driving and for necessitating numerous major
repairs to his truck. There was no showing of disparate
treatment in discharging Scurek for this final incident in
a sustained history of misconduct. Further, the employer
had tolerated frequent pay complaints from other employees, and had actually adjusted Scurek’s pay in response to his recent complaint. Under those circumstances, the Board concluded that no inference of unlawful motivation should be drawn from the timing of
16
E.g., Knoxville Distribution Co., 298 NLRB 688 fn. 1, 696 (1990),
where the Board found a violation in the simultaneous discharges of
three employees for unrelated reasons 1 day before a union meeting.

261

Scurek’s discharge relative to his pay complaint and assault charge a few days earlier.17
By contrast, this case presents none of the countervailing circumstances upon which the Board relied in declining to infer discriminatory motivation from timing in
Woodruff & Sons, supra. There is no evidence that Rodriguez or Dimas had any history of misconduct. Further,
there is strong evidence that the Respondent treated both
more harshly than similarly situated employees.18 And,
unlike the employer in Woodruff & Sons, the record here
establishes that the Respondent targeted, rather than tolerated, the only two named employees who spoke to the
press about employees’ concerns.
We thus find it appropriate to rely on the timing factor,
in addition to the other evidentiary factors relied on by
the judge, in affirming his conclusion that the General
Counsel met his initial Wright Line burden with respect
to Rodriguez, and that the Respondent failed to show that
it would have discharged her in the absence of protected
activity.
B.
For the reasons just stated, we also find that the timing
of Dimas’ discharge particularly supports an inference of
unlawful motivation, in conjunction with the unlawful
discriminatory discharge of Rodriguez for engaging in
the same protected activity.19 We also disagree with the
judge’s analysis of the Respondent’s asserted reliance on
Dimas’ probationary status and her presentation of a personal medical note to justify her discharge. As discussed
below, the Respondent did not consistently treat Dimas
as a probationary employee, leading us to conclude that
the Respondent seized on her probationary status as a
pretext to discharge her. Even if it had consistently
treated Dimas as a probationary employee, we find that
the Respondent’s handling of her medical situation constituted disparate treatment.
17
Moreover, even assuming that the employer was motivated in part
to discharge Scurek because of his pay complaint, the Board found this
complaint to be unprotected activity because of “the opprobrious manner in which he voiced the complaint.” 265 NLRB at 345.
18
Although the judge found a “blatant” disparity in the Respondent’s
treatment of Rodriguez, we need not rely on this characterization of the
evidence. At least where the General Counsel proves animus based on
multiple factors, including disparate treatment, it is not necessary that
the proven disparity be blatant. E.g., Alstyle Apparel, 351 NLRB 1287
(2007) (evidence of disparate treatment indicates shift leader Ly’s
discharge was motivated by union activities rather than his tolerance of
horseplay on the work floor).
19
See Frye Electric, 352 NLRB 345, 350 (2008), and cases cited
there (discriminatory discharge of one worker is a factor to consider in
weighing whether the contemporaneous discharge of a second coworker, who engaged at the same time in the same protected activity,
was discriminatory).

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

The Respondent’s defense requires us to accept the
multiple propositions that Dimas: (1) was properly
treated as a probationary employee with a nonworkrelated injury; (2) could not be accommodated for her
injury like other probationary employees because she had
visited a physician’s assistant on her own; and (3) could
not be retained because the physician assistant’s note
implicitly asked for a leave of absence. Any one of
these propositions is questionable. Collectively, they
cannot stand.
It is not for the Board to question the per se legitimacy
of the Respondent’s discharge and immediate rehiring of
Dimas as a new probationary employee in September
2006. It is within our purview, however, to consider that
the Respondent did not treat her as an ordinary newly
hired or rehired employee. First, it rehired Dimas as
“Zamora” without any break in employment, contrary to
the policy that terminated employees must wait 30 days
before applying for rehire. Second, it assigned her to her
prior workstation and supervisor, rather than rotating her
within her department as Herrera indicated was the custom for new employees. Finally, within 30 days of Dimas’ hiring as Zamora, she received a pay raise in excess
of what new employees were told they could receive
only at the completion of their 90-day probationary period. King authorized this raise based on “previous poultry experience” gained, as King well knew, during Dimas’ tenure with the Respondent. Those departures from
the Respondent’s standard personnel practices occurred
before Dimas’ protected complaints to the press.
By contrast, when Dimas later presented Dr. Mike’s
note prescribing an injury accommodation, King insisted
that Dimas had to be treated as a newly hired probationary employee who could not be accommodated or
granted a leave of absence for an obvious work-related
injury. King took this strict view of Dimas’ probationary
status only hours after learning of Dimas’ protected activity, including her specific complaint about the Respondent’s failure to honor doctors’ notes prescribing
work restrictions for job-related injuries. The Respondent’s prior reliance on Dimas’ actual work history when
treating “Zamora” differently from the usual newly hired
or rehired probationary employee raises the question why
it refused to acknowledge that history when handling her
medical situation on October 30. Had it done so, the
work-related nature of Dimas’ injury would have been
recognized and accommodated.
Nor are we impressed by the Respondent’s argument
that its treatment of Dimas resulted from the fact that she
went to Dr. Mike on her own and presented a personal
physician’s note. Herrera testified that this action essentially preempted him from sending her for a medical

evaluation to determine if her injury was work related.
King, however, testified that an employee, even if probationary, who did what Dimas did would be referred to
Herrera, who might then send the employee to the company doctor for an evaluation. In any event, King knew
that Dimas’ injury was related to her work with the Respondent, and there was nothing to the contrary in Dr.
Mike’s note. Thus, even if the Respondent could legitimately disregard Dimas’ personal medical note, there
appears to be no legitimate reason why the Respondent
was precluded from accommodating Dimas’ workrelated injury, as it did with other employees.
This is so even if the Respondent had consistently
treated Dimas as a probationary employee. Dimas had
been to the medical station with complaints about workrelated pain since she was hired as Zamora, with no inquiry into the timing or source of her injury until after
she engaged in protected activity. The injury she suffered was typical of those incurred by probationary employees engaged in repetitive motion work. Further, it is
undisputed that the Respondent frequently treated such
injuries, for probationary and permanent employees
alike, by giving them temporary restricted work assignments. In at least one recorded instance, the Respondent
even gave a restricted duty assignment to probationary
employee Rutherford for a nonwork-related injury. Accordingly, Dimas’ presentation of a personal medical
note does not explain the Respondent’s actions.
Finally, even if the Respondent could reasonably have
regarded Dimas as a probationary employee with a nonwork-related injury, we disagree with the judge that the
Respondent could reasonably have interpreted Dr.
Mike’s note as requesting a leave of absence. The note
said nothing whatsoever about a leave of absence, and
Dimas never asked for one. Like many similar notes in
the record, it prescribed restricted work duty. Moreover,
King never asked Dimas whether she was requesting a
leave of absence, or whether she was willing to return to
work without any restriction and deal with her pain, just
as Dimas had done after other recent visits to the medical
station.20
Based on the foregoing, we find that the Respondent’s
reliance on Dimas’ limited work history as “Zamora” and
her personal medical note as the basis for discharging her
was pretextual. “It is . . . well settled . . . that when a
respondent’s stated motives for its actions are found to
20
Dimas’ situation is distinguishable from those of other terminated
probationary employees cited by the Respondent. Each of those employees presented notes that specifically requested leaves of absence
for medical conditions. Furthermore, those conditions precluded any
possibility of an immediate return to work, with or without restricted
duties.

 CASE FARMS OF NORTH CAROLINA

be false, the circumstances may warrant an inference that
the true motive is an unlawful one that the respondent
desires to conceal.” Fluor Daniel, Inc., 304 NLRB 970,
970 (1991), citing Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466 (9th Cir. 1966). In any event, we find that
the Respondent’s disparate treatment of Dimas’ injury,
whether or not she was legitimately regarded as a probationary employee, precludes the Respondent from establishing its Wright Line defense. Accordingly, we conclude that the Respondent violated Section 8(a)(1) of the
Act by discriminatorily discharging Dimas for engaging
in protected concerted activity.
AMENDED REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative actions designed to
effectuate the policies of the Act. Specifically, we adopt
the judge’s recommended backpay and reinstatement
remedy for the unlawful discharge of employee Luz Rodriguez. In addition, having found that the Respondent
also unlawfully discharged employee Evodia Dimas a/k/a
Claudia Zamora, we shall include in our remedial order
conditional provisions for reinstatement and backpay.
Contrary to the judge, and consistent with Board practice, we shall order the Respondent Employer to offer
Dimas reinstatement subject to the condition that she
presents, within a reasonable time, INS form I–9 and the
appropriate supporting documents proving legal immigrant status. See A.P.R.A. Fuel Oil Buyers Group, Inc.,
320 NLRB 408, 415–417 (1995), affd. 134 F.3d 50 (2d
Cir. 1997).
In Hoffman Plastic Compounds, Inc. v. NLRB, 535
U.S. 137 (2002), the Supreme Court held that the Immigration Reform and Control Act of 1986 (IRCA) precluded the Board from awarding backpay to any discriminatee who is not “lawfully entitled to be present and
employed in the United States.” Hoffman, supra at 1281,
citing Sure-Tan, supra at 883. Accordingly, the Board is
obligated to toll backpay for any part of the backpay period during which the discriminatee is not lawfully entitled to be in the United States. E.g., Tuv Taam Corp.,
340 NLRB 756, 760–761 (2003). As the Board has explained, however, it is usually premature to address such
matters at the merits stage of a case. We decline to do so
here, leaving to compliance the determination of what, if
any, backpay may be due to Dimas consistent with Hoffman. See, e.g., Domsey Trading Corp., 351 NLRB 824,
829 (2007) (remanding for further litigation in compliance about six discriminatees “whose authorization status
during the backpay period, and consequent entitlement to
a backpay remedy, remain[ed] uncertain”).

263

Any backpay owed to Dimas shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).21 In addition, the
Respondent shall be ordered to remove from its files and
records any and all references to the unlawful terminations of Dimas and Rodriguez, and to notify them in
writing that this has been done.
ORDER
The Respondent, Case Farms of North Carolina, Inc.,
Morganton, North Carolina, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they engage in protected concerted
activities, or to discourage employees from engaging in
such activities.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Luz Rodriguez full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights and privileges previously enjoyed.
(b) Within 14 days from the date of this Order, offer
Evodia Dimas a.k.a. Claudia Zamora full reinstatement
to her former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to her
seniority or any other rights and privileges previously
enjoyed, provided that she completes, within a reasonable time, INS form I-9, including the presentation of the
appropriate documents, in order to allow the Respondent
to meet its obligations under the Immigration Reform
and Control Act of 1986.
(c) Make Rodriguez and Dimas whole for any loss of
earnings and other benefits suffered as a result of their
unlawful discharges, with interest, in the manner set forth
in the amended remedy section of this decision.
(d) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful discharges of Rodriguez and Dimas/Zamora and, within 3
days thereafter, notify them in writing that this has been
21
The General Counsel seeks compound interest computed on a
quarterly basis for any monetary amounts owing to the discriminatees.
Having duly considered the matter, we are not prepared at this time to
deviate from our current practice of assessing simple interest. See, e.g.,
Glen Rock Ham, 352 NLRB 516 fn. 1 (2008), citing Rogers Corp., 344
NLRB 504 (2005).

 264

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

done, and that the unlawful discharges will not be used
against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, Social Security payment records, timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Morganton, North Carolina, copies of the
attached notice marked “Appendix.”22 Copies of the
notice, on forms provided by the Regional Director for
Region 11, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since October 30, 2006.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
22

If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

Choose representatives to bargain with us on
your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against you because you engage in protected concerted
activities, or to discourage you from engaging in such
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Luz Rodriguez full reinstatement to her former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights and privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, make a conditional offer of reinstatement to offer
Evodia Dimas a/k/a Claudia Zamora, offering her full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges
previously enjoyed, provided that she completes, within
a reasonable time, INS form I-9, including the presentation of the appropriate documents, in order to allow us to
meet our obligations under the Immigration Reform and
Control Act of 1986.
WE WILL make Rodriguez and Dimas whole for any
loss of earnings and other benefits suffered as a result of
their unlawful discharges, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful discharge of Rodriguez and Dimas and, WE
WILL, within 3 days thereafter, notify them in writing that
this has been done, and that the unlawful discharges will
not be used against them in any way.
CASE FARMS OF NORTH CAROLINA, INC.
Rossetta Lane, Esq., for the General Counsel.
Charles Roberts III, Esq. (Constangy, Brooks & Smith, LLC),
of Winston-Salem, North Carolina, for the Respondent.
Francisco Risso, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. This case was
tried in Morganton, North Carolina, on July 16, 17, and 18,
2007. The charges in Cases 11–CA–21378 and 11–CA–21379
were filed by Western North Carolina Workers’ Center on No-

 CASE FARMS OF NORTH CAROLINA

vember 2, 2006.1 A consolidated complaint was issued on
March 30, 2007. It alleges that Case Farms of North Carolina,
Inc. (Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act), by threatening employees with
calling immigration and by terminating employees Claudia
Zamora and Luz Rodriguez because the employees engaged in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and in order to discourage employees from engaging in such concerted activities for the purpose of collective bargaining or other mutual aid or protection.
Respondent denies violating the Act as alleged in the abovedescribed complaint.
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent on September 17,
2007,2 I make the following
FINDINGS OF FACT
I. JURISDICTION

The Respondent, a North Carolina corporation, processes
poultry at its facility in Morganton, where it annually sells and
ships from its Morganton plant, products valued in excess of
$50,000 directly to points outside the State of North Carolina.
The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES

Facts
On October 27, a number of Respondent’s employees engaged in a work stoppage. Before October 27, the employees
were provided with an unlimited number of latex gloves daily
by the Employer. The employees had been placing the gloves in
trash containers when they went on break or to the restroom,
and they were given a new pair of gloves, at no charge to them,
when the returned to the work area. Before October 27, the
employees had complained that the quality of the gloves had
fallen off. Also, customers complained that they were finding
pieces of the latex gloves in the product and they advised Respondent that they would not continue to purchase Respondent’s product unless the problem was remedied. Respondent
purchased better latex gloves which cost more and Respondent
decided to only provide three pairs of these gloves to the employees daily. If an employee required more than three pairs of
gloves on a given day, the employee had to pay 50 cents to
Respondent for each additional pair of gloves. The employees
received notification of the change in policy on October 27.
Members of management spoke to the employees on October
27 telling them to go back to work or leave the plant. The employees did neither. The message was repeated during the
morning and eventually the employees were advised that the
police were going to be summoned. Subsequently, the police
1

All dates are 2006, unless otherwise indicated.
Counsel for General Counsel’s unopposed motion for an extension
of time to file briefs from August 23 to September 17, 2007, was
granted.
2

265

arrived and the employees were escorted off Respondent’s
property.
Miguel Cua, who is a human resource supervisor, testified
that on October 27 there was a work stoppage beginning at 8:15
a.m., and he and Armando Campos, Respondent’s human resources director, went down to the production floor to find out
what was going on; that the employees complained about the
change in the glove policy; that the employees were told that
the new glove policy was not going to be changed; that management decided to give the employees time to cool off; that
later the employees were asked again to go back to work but
the employees said that they were not going back to work until
the Company changed the glove policy back to the old policy;
that the employees were informed that the policy was not going
to be changed back and they had 10 minutes to go back to
work; that a second warning was given to the employees who
were told to go back to work or leave; that the employees refused; that after the third attempt to get the employees to work
or leave, management told the employees that if they did not
work or leave they were trespassing and management would
call the police; that the police had the employees leave the Respondent’s property; that by about 11:30 a.m. more than 250
employees had left the plant; that during the 3-hour period he
did not say anything about calling Immigration; and that he
addressed the employees as a group.
On cross-examination, Cua testified that during the work
stoppage management told the employees “don’t yell, don’t
yell, be calm” (Tr. 478); that there was no violence when the
police came; and that the employees left when they were told to
by the police.
When called by counsel for the General Counsel, Victoria
Soto King, Respondent’s human resource director, testified that
Respondent had been having a problem with the latex gloves it
used for some time; that eventually a vendor of a better quality
latex glove was located; that the better latex gloves cost the
Respondent more and it was decided to give Respondent’s employees three pairs per day and after that the employees would
have to pay for the additional pairs of gloves they used; that she
thought the cost to employees for additional gloves was 45
cents a pair; that employees have to purchase the files they use
to sharpen their knives; that on October 27, the employees engaged in a walkout because they were not going to get as many
free gloves as they used to; that she arrived at the plant at about
11:30 a.m. on October 27; that the police arrived at the plant
and removed more than 250 employees on October 27; and that
later that day when the employees returned to the plant to pick
up their paychecks she told the employees that she did not
understand why they had to walk out.
A newspaper article (GC Exh. 2) (R. Exh. 13 is the computerized copy of the newspaper article) was published on Sunday,
October 29, about the walkout and two employees who spoke
to representatives of the press about the reasons for the walkout, viz. Zamora and Rodriguez, were named in the published
article. As here pertinent, the newspaper article reads as follows:

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

More than 100 workers at Case Farms walked off the
job Friday morning after what they call a months-long attempt at correcting problems inside the factory.
Company officials say the incident Friday was caused
by new gloves introduced into the work area. . . . .
Workers say the gloves aren’t their only problem.
....
“We’ve been talking for several months about problems at the plant, but the company hasn’t responded to our
needs,” says spokesperson Luz Rodriguez, through interpreter Francisco Russo, director of North Carolina
Worker’s Center.
Thursday, the company announced that each worker
would get three pair of gloves that should last them the entire day, she says.
The workers were told that they would be charged 75
cents for each additional pair, she says.
She says workers normally use six or seven pairs a day
because the gloves break.
There was no limit on gloves before Friday, Rodriguez
says.
....
Gloves aren’t the only reason workers say they decided to stage a strike.
Pregnant women used to be able to take 13 weeks off
when they had their babies but the company now expects
new mothers to come back in a month, Rodriguez says.
“It had to do with a lot of things,’ she says. ‘We decided to say, No more.’”
Claudia Patricia-Zamora says the workers at Case
Farms are routinely told to ignore notes from doctors
about work restrictions when they’ve been injured on the
job.
....
Rodriguez testified that she worked at Respondent from October 9 until the 31; that she cut and deboned chicken legs using a knife or scissors in area 1145; that on October 27 when
she arrived at work at 8 a.m. she was given three pairs of gloves
for the day and if she needed more, she would have to pay for
them; that in the past she was able to get as many pairs of
gloves as she needed during the day; that she then went to the
ladies locker room where the ladies were talking about a strike
or work stoppage; that she and the other ladies went to the work
area; that all of the workers were standing; that she told the
workers that if they stick together maybe the Company would
reduce the price a little bit of the gloves; that Supervisor
“Chepino” (Jose Hernandez) asked her why she was screaming
at the people, yelling at the people, and she told him that she
was not yelling but rather she was simply defending the employees’ rights as workers; that the employees in area 1145
decided to go to area 1110; that when she was in area 1110
Campos came and spoke to the employees; that Campos asked
her why she was yelling or screaming, she told Campos she
was not screaming or yelling she was just simply defending the
employees’ rights and defending her coworkers because it was
not just what the Company was doing to them, it was not fair;
that Campos then told her that what she was doing was not

right, if she had a problem, she should go to the office and talk
to him, and it was her fault that the people had stopped working
in area 1110; that then-Supervisor Miguel (Rodriguez did not
know his last name) came and told the employees to leave the
Company and the police were coming; that employees told
Miguel that they were not afraid of the police and Miguel said,
“Well, if you’re not afraid of the police, then don’t make us
call—have to call Immigration” (Tr. 157); that then the police
came and the employees went to the cafeteria; that then the
police made the employees leave Respondent’s property; that
the employees went to a local church and she was chosen to
speak to the press; that she told the press that it was not fair
what the Company was doing because the Company was charging the employees for everything; that she returned to the plant
later that day to pick up her paycheck; that King told the employees, “Aren’t you—aren’t you ashamed to come pick up
your check after you—after what you have done? Why did you
make such a scandal for a pair of gloves? Why did you force us
to call the police?” (Tr. 160 and 161); that an employee said
that they had only come for their paycheck and they did not
want to hear what King had to say; that King then said, “[W]ell,
be quiet, and if you don’t want to work here, leave. You are a
dog, or it could be a bitch. I don’t—it’s the same word in Spanish” (Tr. 161); and that then King told the employees to be
quiet and leave and “not to force her to call the police or immigration because I will send you back to your country” (Id).
On cross-examination, Rodriguez testified that on October
27 at about 8 a.m. there were about 300 employees who were
not working at that time; that 3 hours later, or about 11 a.m., the
employees were finally made to leave the plant; that only once
did Campos and Cua ask the employees to either leave the facility or go back to work; and that at some point Miguel or
some other supervisor told the employees that if they did not
leave the plant the police were going to be called.
King testified that about 90 percent of Respondent’s employees at the involved plant are Hispanic, with 89 percent of
Guatemalan descent; that in 2006 the employees began complaining about the latex gloves, indicating that they were thinner than they had been using and that the finger tips were no
longer rough which made it more difficult to hold the product;
that a customer complained that it was finding pieces of the
yellow latex gloves on the product and it indicated that if Respondent wanted the customer to buy the product, Respondent
would have to make sure that the extraneous material was not
on the product; that it was decided to use blue latex gloves; that
the employees indicated that the new gloves were of the same
thickness of the gloves they used before they became thinner;
that it was decided that three pairs of the new gloves would be
supplied to employees each day and if the employees needed
additional gloves they would have to pay 50 cents for each pair;
that on Thursday, October 26 she posted a notice to employees
advising them that if they needed more than three pairs of
gloves a day, it would cost them 50 cents a pair3; that when she
3
See p. 8 of R. Exh. 5, which indicates, inter alia, that starting on
October 27 every production employee will recrive three pair of gloves
every morning at no cost to them—blue for the leg debone personnel
and the new better yellow gloves for the employees in the rest of the

 CASE FARMS OF NORTH CAROLINA

arrived at the plant on October 27 at about 11 a.m. she saw the
police cars around the plant and Campos told her what was
going on; that on the afternoon of October 27 when the employees returned to the plant to pick up their paycheck, she
asked them “why did you leave, why did you feel that you had
to stop like that” (Tr. 336); that some employees told her that
they were not there to talk about issues, they were there just to
pick up their paycheck; that she then told the employees present
“[w]hen you come back on Monday, you’re going to get your
three pairs of better yellow gloves you wanted. If you want to
work, come to work. But if you don’t want to work, don’t even
bother coming” (Tr. 337); that she did not say to the employees
don’t make me call Immigration or I’m going to call Immigration, and she did not call the employees dogs or bitches in
Spanish; and that she did not ask employees “are you ashamed
to pick up your paychecks.” (Tr. 396.)
On October 30, Respondent’s employee known at that time
as Zamora went to the medical or first aid station in Respondent’s plant, and presented a note (GC Exh. 3) from Table Rock
Family Medicine which is dated “10–26–06” and which prescribed “Light work or no work . . . [concerning left] arm for
one week.” Zamora is actually an alias for Evodia Gonzalez
Dimas. Dimas had worked for Respondent since 1999. However, the Social Security Administration (SSA) advised Respondent by letter that the social security number that Dimas
was using was not a valid social security number for her. Subsequently, Dimas provided Respondent with identification (a
permanent resident card) as Zamora and a social security card
for Zamora, who had a different birth date than the one originally provided to Respondent by Dimas (R. Exh. 6). On September 8, Respondent terminated Dimas (R. Exh. 12) and on
September 11, Dimas was hired and received orientation as a
new employee named Zamora (R. Exhs. 16 and 14). When
Dimas went to Respondent’s medical station on October 30
posing as Zamora, she was still a probationary employee since
Zamora had not completed her 90-day probationary period. On
October 30, Dimas posing as Zamora complained to the medical assistant in Respondent’s plant about her left arm and
shoulder. The Respondent had not sent Dimas to the clinic from
which she had the medical note. Zamora was referred to Respondent’s human resource department. Dimas posing as
Zamora was advised that since she was a probationary employee, Respondent would not accommodate her request. Dimas posing as Zamora was terminated on October 30.
When called as a witness by the General Counsel, King testified that Ken Wilson, in public relations at Respondent, emailed her a copy of the newspaper article about the work stoppage in which Dimas, referred to in the article as Zamora, and
Rodriguez were quoted (R. Exh. 13); that Raul Herrera, who
began working for Respondent on October 9, 2006, is Respondent’s safety manager and is responsible for Respondent’s
medical station and workers’ compensation, met with her about
Zamora’s complaint regarding her left arm; that Dimas a/k/a
Zamora had worked for Respondent since 1999; that on Friday,
departments, and that if the employees need more gloves other than the
three free pairs provided daily, they must buy them at their own expense which will be the price of 50 cents per pair.

267

September 9, Dimas brought to Respondent identification
documentation as Zamora; that on the following Monday Dimas began working as Zamora; that when Dimas was hired as
Zamora, she was given new employee orientation, a different
employee number, a new employee seniority date, her job and
her supervisor remained the same but Dimas’ pay was reduced
to that of a starting employee; that when a new employee begins working at Respondent they often experience pain in their
arms and their wrists from the repetitive motion of the work;
that Herrera will work with the employees for a couple of
weeks to alleviate the pain until they get better; that sometimes
Herrera has to move the employee to a different job where they
are not using that particular part of their body for a couple of
weeks; and that Herrera does this for all employees, including
new employees.
When called as a witness by the General Counsel, Herrera
testified that when an employee comes to the medical station
complaining about an ache or pain the situation is evaluated;
that everything is treated as work related initially just in case;
that new employees especially experience aches and pains; that
if a new employee complains about an ache or pain, they can,
after evaluation, be used in different areas of the plant within
their department for a while so that they are not aggravating the
injury; that in October Zamora, who worked on the deboning
line, came to the medical station and told him that she was experiencing pain in her left shoulder, arm, and wrist; that on
October 30, Zamora presented him with a note from the Table
Ridge Family Medicine clinic, which is one of the clinics which
Respondent refers its employees to, calling for light duty or no
work for left arm for 1 week (GC Exh. 3, a Table Rock Family
Medicine note, indicates “Light work or no work . . . [see left]
arm for one week”); that in this instance Respondent had not
referred Zamora to the clinic; that Zamora had been in the plant
aid office several times complaining about this pain in her
shoulder, arm, and wrist, and most of the time Respondent
would give her some medication that would help relieve the
swelling and pain; that on October 30, when Zamora came to
him with the medical note he told her that he would help her
and he gave her a sling for her arm; that at the time of her
evaluation he told Supervisor Jose Hernandez to give Zamora a
job where she did not have to use her left arm; that 95 percent
of the time he has employees who come to him with an injury
or pain of some sort write a statement about it; that he could
only recall one other time when he had an employee, Antonio
Jackson, draft a statement regarding how he was injured; that
he did not tell Zamora individually when she came to the medical station that there are better ways to take care of a problem
than a work stoppage; that on October 27, as part of the management team speaking to employees engaged in the work
stoppage, he did tell all of the assembled employees together
that there is a better way to take care of problems than a work
stoppage; that his office did not schedule Zamora’s appointment at the clinic; that at the time he did not know Zamora
under any other name; and that when he determined that the
injury was not related to workers’ compensation he sent
Zamora to human resources.
In her examination of Herrera, counsel for the General
Counsel introduced General Counsel’s Exhibits 4 through 19,

 268

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

which show that Respondent gave light duty to a number of
employees who suffered an injury, pains, aches, or cysts. Some
of these employees who were given light duty had not yet completed their probationary (90 days) period and some of these
were given light duty after Zamora was terminated. Indeed, one
of the probationary employees who received light duty after
Zamora was terminated had a nonwork-related injury.
Dimas testified that she began working at Respondent in
January 1999; that in September 2006 when she changed her
identification from Dimas to Zamora she did not miss any work
in that she changed her identity on Friday and on Monday she
was called Zamora; that when she became Zamora her job and
supervisor, Pedro Shank, did not change but she was paid less
for doing the same work; that she worked on a deboning line,
cutting chicken legs with a knife or scissors; that when she
works with scissors if the chicken leg was not cut properly by
the person on the line ahead of her using the knife, she returns
the chicken to the person who originally had the responsibility
of making the necessary cut with the knife; that she uses her
right hand for the knife and scissors and she wears a metal
glove on her left hand; that on October 26, she had to leave
work early because her left arm hurt her a lot; that she went to
see “Doctor Mike,” who is a physicians assistant at Table Ridge
Family Medicine clinic; that the physicians assistant asked her
if Respondent had sent her and she told him no; that prior to
seeing the physicians assistant she told the nurses aide in the
plant that she was going to the doctor because her arm hurt a
lot; that the nurses aide told her that she would have to speak
with King and she did speak with King but she could not remember exactly when; that on October 27, she participated in
the work stoppage over Respondent’s new policy regarding
work gloves; that she was also upset about Respondent’s policies regarding absences and doctor notes; that she overheard
Rodriguez, who was a new employee, tell her coworkers not to
be afraid because management would not do anything to them;
that Supervisor Hernandez and Campos then told Rodriguez to
be quiet and they asked her why she was screaming so much ;
that the employees were told to go to the cafeteria, that the
police would be summoned, and the police did come to the
plant; that many of Respondent’s employees left Respondent’s
property and met at a church; that newspaper people came to
the church and she spoke with them through an interpreter; that
later in the day on October 27 she and other employees went
back to Respondent’s plant to get their belongings and their
paychecks; that while they were at Respondent’s plant, King
told the employees that if they wanted to go back to work on
Monday the work was there but the new policy regarding the
gloves would remain the same; that on October 30, she told
Supervisor Hernandez that she had to go to the nurses station;
that at the nurses station she spoke with Nurse Morgan and
Herrera; that Herrera told her that he had spoken with King,
they decided to take her case, they were willing to help her, and
he had a present for her, namely a sling; that she gave Herrera
the note she had from the Table Ridge Family Medicine clinic;
that she told Herrera that Dimas went to the clinic and not
Zamora; that Herrera then said that he did not like it when people played with him; that Herrera put her arm in the sling, and
he told her not to take it off for any reason and that the doctor’s

note would be respected; that Herrera told Hernandez to put
Zamora on a job where she would be using only one hand; that
she picked up chicken legs which had fallen between the lines
and she placed them in a box; that she worked for 2 hours and
then went on a break; that she worked for 30 minutes more
picking up chicken legs off the floor when Herrera told her to
go to his office; that Herrera told her that he was new at Respondent and needed her to help him so he could help her; that
he asked her to draft a statement indicating when she started
work and when her arm started hurting her; that while she was
writing the statement (GC Exh. 22),4 Herrera said that the employees committed a grave error when they stopped work on
October 26; that she told Herrera that she realized that but she
did not like the way King treated her; that she spoke with
Herrera for about 2 hours; that she told Herrera that ever since
King and Campos came to Respondent changes were made,
they were not made in favor of the employees but rather they
were made in favor of the Company; that she went back to
work and about 5:30 or 6 p.m. Hernandez told her to go to
King’s office; that it was just her and King in the office but
Campos came in at one point; that King told her that she had
discussed the matter with Herrera and she would have to let her
go because she could not work with just one hand and they did
not have work for her with just one hand; that she told King
that she was willing to do any other work even if it did hurt her;
that King told her that she could not do anything for her; that
she asked for a termination slip and King said she was not going to give it to her; that King called and told Herrera to accompany Dimas to get her belongings; that during her employment with Respondent she once took a leave of absence for 4
months; and that when King discharged her King did not tell
her that she could reapply to work at Respondent’s plant in 30
days.
On cross-examination, Dimas testified that the birth date of
Zamora was different than the one she originally gave when she
originally went to work for Respondent in 1999 (R. Exh. 1);5
that the social security number she gave to the Respondent in
1999 was given to her by a friend; that she was not authorized
to work in the United States in 1999; that she was never terminated by the Respondent before October 2006; that in September 2006 King told her that she would have to be terminated as
Dimas and rehired as new employee Zamora; that she signed an
employment application as Zamora; that her pay was reduced;
that she bought the papers so that she could work as Zamora;
that on October 27, Hernandez told employees to go back to
work about three times; and that on October 30, even though
she was not asking for a leave of absence, King told her that
she could not give her a leave of absence because she was a
new employee.
On redirect, Dimas testified that she gave her Zamora papers
to Campos and not King; that while she signed the Zamora
4
In here statement, Dimas indicated that the metal glove she wore
on her left hand for the half day that she used the knife weighed a lot
when it was full of grease or fat.
5
R. Exh. 1 includes copies of the resident alien card, the social security card, and the State of North Carolina DMV Identification card
Dimas gave to the Respondent in 1999 when she was first hired.

 CASE FARMS OF NORTH CAROLINA

application (GC Exh. 23), she did not fill it out; that King filled
out the Zamora application and King asked her to sign it; that
while she worked as Dimas at Respondent, her job was changed
for 1 week to accommodate a thumb she cut at home; and that
she regretted changing her name to Zamora “because it didn’t
do me any good.” (Tr. 148.)
King testified that the probationary period is 90 days; that
probationary employees do not receive any benefits and they
are not eligible for any kind of medical or personal leave; that
since 2004 when someone applies for a job Respondent has
telephoned the SSA to check that there is a match with the social security number given, the name, and the birth date; that
periodically, Respondent gets letters from SSA indicating that
there are certain mismatches; that she prints two copies of the
letter, gives one to the employee involved, and has the employee sign the other copy to show that the employee was given
the letter; that the SSA letter indicates that the employer cannot
assume that the individual in question is illegal and the employer cannot take adverse action against the involved employee; that she gave such a letter to Dimas and Dimas subsequently gave new documentation to Campos6; that she did
check the social security number to make sure that it belong to
somebody named Zamora; that Dimas was terminated on September 8, 2006 (R. Exh. 12); that Dimas, under the name
Zamora, was hired on September 11, 2006 (R. Exhs. 14, 15,
and 16); that late in the afternoon of October 30, 2006, Herrera
told her “[t]hat Evodia had a personal doctor’s note that I
needed to deal with” (Tr. 352); that for anything work related
the nurses station would schedule a doctor’s appointment; that
she has advised supervisors that any other doctor’s note should
be referred to human resources; that the Respondent does “not
contemplate personal doctor’s note restrictions [regarding light
duty or proposed restricted duty] at all, none” (Tr. 353); that
Respondent allows light duty or restricted duty in work-related,
workers’ compensation cases; that if employees who are not
probationary come to her with a note proposing a personal restriction that employee can take medical leave or personal
leave; that it is best that employees who have not finished their
6
Dimas gave Campos a permanent resident card and a social security card, R. Exh. 6. The permanent resident card has the picture of
Dimas on it but it has the name of Claudia Patricia Zamora with a birth
date of December 6, 1981. The card also indicates that the holder has
been a resident since April 20, 2001. The social security card bears the
name of Claudia Patricia Zamora. The documentation that Dimas originally gave to the Respondent, R. Exh. 1, includes a resident alien card,
and a State of North Carolina identification card. Both the Dimas resident alien card and the State of North Carolina identification card give
Dimas’s birth date as November 1, 1979. The numbers on the two
social security cards Dimas gave to Respondent at different times are
not the same. In other words, with the documentation Dimas gave to the
Respondent in September 2006, as far as Respondent was concerned,
she changed her name, birth date, and social security number. The
numbers of the new social security card bear no resemblance whatsoever to the old social number. Indeed, the old one began with the number 5 while the new one began with the number 6. King testified that
she did not ask Dimas about these changes and Campos did not testify
at the trial herein. With the changes, Dimas incredibly reversed the
aging process by over 2 years. Yet, no one at Respondent saw fit to ask
her how she accomplished this feat?

269

probationary period and who have a proposed personal restriction, that they just quit and come back when they are better;
that anyone can reapply after 30 days; that she understood that
Zamora’s appointment was not one that either Herrera or his
office scheduled; that she called Zamora to her office and told
her that Respondent did not have a job for her because she had
a restriction in her personal doctor’s note; that Campos and
Herrera were in her office at the time; that she told Zamora that
if she had been there more than 90 days she would have options
but Respondent could not accommodate her restrictions, and,
therefore, Respondent did not have a job for her; that on Monday morning, October 30, she did see Zamora’s name in the
newspaper article emailed to her by Wilson (R. Exh. 13), but
that had nothing to do with Zamora’s termination; that she
probably printed a copy of the e-mail but she did not have a
copy of the actual newspaper itself; and that she has had other
employees since she has been at Respondent within their probationary period who had personal restrictions that she has been
unable to accommodate. King sponsored Respondent’s Exhibits
28 [A probationary employee, Carlos Algarin, could not work
until his next medical evaluation and he was not eligible for
leave of absence (LOA).]; 29 (A probationary employee, Marie
Vincente, could not work in a cold environment and she was
not eligible for LOA), and 30 (A probationary employee,
Ronald Romero, could not work until his next medical evaluation and he was not eligible for LOA).
On cross-examination, King testified that she was employed
with Respondent when Algarin requested a leave of absence;
that Algarin was requesting to be out of work completely, the
doctor told Algarin that he could not work until his next medical evaluation, and she did not know how long it would be until
Algarin’s next medical evaluation; and that Romero was asking
to be out of work until his further medical evaluation and he
was not asking for any type of special accommodations; that
Vincente was requesting a restriction not to work in a cold area
and the doctor did not give a particular time frame that she was
not supposed to work in a cold environment; that as memorialized by General Counsel’s Exhibit 25, Dimas a/k/a Zamora
received a probationary increase in pay back up to $8 an hour
after she had been working at Respondent for less than a month
as Zamora; that Dimas a/k/a Zamora never requested a leave of
absence; that she did not review Dimas’ personnel file before
testifying at the trial herein; that there are documents in Dimas’
personnel file which indicate that she received leave of absences throughout her employment; that Dimas is not an argumentative employee and she did anything she, King, asked her
to do; and that when Dimas a/k/a Zamora brought the medical
note on October 30 she would have been eligible for a leave of
absence if she had not been a probationary employee.
When called by the Respondent, Herrera testified that he was
called to the nurses station about 8:15 a.m. on October 30; that
at the time Morgan was in charge of the nurses station; that
Morgan told him that Respondent was treating Zamora for what
is called evaluation; that he knew about it the week before; that
he asked Zamora what was wrong; that he told Zamora that he
had something to help her out and he gave her a sling to immobilize her arm; that he told Zamora that she was going to have
to wear the sling throughout the day; that he called Hernandez

 270

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

and told him that he needed to find a job where Zamora could
use one arm; that after he gave Zamora the sling and told her
that she would be working under restrictions, she told him that
here arm had been hurting for some time and she gave him a
medical note; that neither he nor the nurse scheduled that medical appointment; that for workers’ compensation injuries either
he or the nurse schedules the doctor’s appointment; that he
checked how long Zamora had worked for Respondent and
discovered that she had not been there very long; that he had
Zamora come to his office and he asked her to draft a statement
regarding what caused the injury, how, when, and why it happened; that Zamora gave him her statement (GC Exh. 22 translated at Tr. 123–124); that he sent Zamora back to work and he
then reviewed her statement; that the statement showed differences in time, it showed differences in when her injury happened, when she reported it, and how long she had been injured
(The statement reads in part as follows: “The pain began when I
was about eight (8) months doing the second cut. . . . I started
working on the 6th of February 2003. . . .”); that when he
looked at Zamora’s hire date again he realized that there was an
issue and he brought the note back to human resources so they
could evaluate it; that in his conversations with Zamora that
day he did not say (1) anything about the walk out that had
occurred on the previous Friday; (2) employees had made a
grave error; (3) we’ve taken your case per Victoria; and (4) I
have a gift for you; that Zamora did not say it is not Christmas;
that he was present when Zamora was terminated; that King
told Zamora that she was not eligible for LOA and the Respondent did not accommodate any personal restrictions; that he
walked Zamora out of the plant; that as he escorted her out, she
threw the sling in his face, said that he cheated her out of her
job, and called him “bentetol” which means stupid or something like that; that regarding some injuries he did not know
whether they were work related or nonwork related and he
works with the employee until it is determined whether the
injury is work related or not; that with respect to General Counsel’s Exhibit 4, (a) Donald Gene Allen had nonwork-related
injury and he received 5 days on job restriction; (b) Antonio
Rico Jackson had a nonwork-related injury and was given 8
days job restriction; (c) Dorothy Gladden had a nonworkrelated injury and had other recordable cases; and (d) Janice
Elaine Jordan had a nonwork-related injury and was given 8
days on job restriction; that Allen, Jackson, Gladden, and Jordan were all provided restricted duty while he was setting up
appointments for Respondent to determine whether their injuries were work related or not; that Zamora was different because she gave him a personal note and
Because the red flag again. If we—If I - if I don’t have any
red flags on a—on an injury, once again we treat all injuries
as they were work-related and then we go from there. With
Claudia Zamora, there was a red flag. There was a date of
hire, then an injury date, and that’s what caused for me to investigate. [Tr. 504.]
On cross-examination, Herrera testified that Morgan is not a
registered or licensed practical nurse but rather she is a CNA
(apparently meaning a certified nursing assistant); that Zamora
came to the nurse’s station with a pain in her left shoulder, arm,

wrist, and hand; that after she gave him a written statement he
escorted Zamora to King’s office; that he told King what was
going on; that King did not tell him at that time that Zamora
had worked since 1999 at the plant as Dimas; that he was on the
plant floor on October 27 during the work stoppage; that he was
part of the group of managers who were trying to calm things
down; that he and the other managers were telling employees
“don’t yell, don’t yell, calm down” (Tr. 510); that after several
attempts to get the employees to go back to work, the employees were told that the authorities were going to be called; and
that he never sent Zamora to the doctor to be evaluated for her
arm because she never gave him the opportunity to because
Zamora went to the doctor first.
Respondent experienced mechanical problems on line 16 in
the deboning department on October 31, 2006. The employees
on that line, who were not experienced employees, were moved
to line 12 in the deboning department. Among them were Rodriguez, who had been hired by Respondent just a couple of
weeks before that, and employee Dominique Johnson, who had
been hired in March 2006. As here pertinent, Rodriguez and
Johnson were positioned on the line so that Johnson first made
a cut with a knife and then Rodriguez, using only scissors, engaged in a followup procedure. Johnson was not making the cut
properly which meant that Rodriguez could not further process
the product moving to her from Johnson. Indeed, Johnson’s
failure to do her job properly affected not only Rodriguez ability to perform her job but it affected at least one other employee
beyond Rodriguez on the line, namely Pedro Luis Ronda, who
also worked with scissors. Rodriguez returned the product to
Johnson to rework it. Rodriguez did this on more than one occasion. Johnson and Rodriguez then exchanged words and
Johnson, without permission from a supervisor, walked away
from the line. Human resources then became involved in this
matter. Johnson, Rodriguez, and Rhonda were interviewed, and
they gave written statements to human resources. Respondent’s
Exhibits 20, 24, and 22, respectively. Supervisor Daniel Raymundo also gave a written statement to human resources with
respect to what he allegedly witnessed. (R. Exh. 21.) Rodriguez, who testified that she cannot read in English, signed a
statement written in English by King. (GC Exh. 25.) The statement indicates that Rodriguez threw product. Rodriguez was
terminated. Respondent takes the position that Rodriguez was
terminated for throwing product when she gave Johnson back
the product to rework or cut properly. According to Respondent, throwing product warrants termination.
Johnson did not testify at the trial herein.
When called by counsel for the General Counsel, King testified that Johnson was discharged in 2007 for absences; that
Johnson was a tall and heavy set woman; that Johnson was not
a Hispanic employee and she did not speak Spanish; that Johnson had to be coached a lot because the other employees
thought she was rude; that Johnson did not get along with the
other employees; that Johnson came across as a bully, she intimidated other workers, and was disrespectful toward supervisors; that Johnson was often late for work and sometimes she
forgot to clock in; that Johnson refused to do what a United
States Department of Agriculture inspector directed her to do;
that on October 31, Johnson came to her office; that prior to

 CASE FARMS OF NORTH CAROLINA

Johnson coming to her office neither Supervisor Raymundo nor
Supervisor Hernandez told her that there was a problem on the
involved line; that Johnson told her that Rodriguez, who was
making a cut following the cut Johnson was making, told Johnson that she did not know how to cut the chicken right; that
Johnson gave a statement to her and in it Johnson indicated that
she told Rodriguez that nobody was going to tell her that she
could not cut the chicken right; that Johnson told her that the
other employee had cussed at her in English; that Johnson, who
was using a knife at the time, told her that she told Rodriguez
“to come and fuck her up,” (Tr. 46); that when Johnson left the
line she did not tell her supervisor that she was leaving; that
employees do not need to get permission to leave a line to see
her if they feel threatened or intimidated even if a supervisor is
present on the line; that Rodriguez was a new employee and she
was learning the job a the time of her discharge; that she did not
recall any employee being issued a warning for walking off the
line without permission during the time she worked at the involved plant; and that an employee can be disciplined for using
profane language in the plant.
Rodriguez testified that when she came to work on Tuesday,
October 31, her line was not running and her supervisor told
her that she was being sent to another line; that the supervisor
on the line she was sent to was Raymundo; that her task was to
remove the fat from the chicken with scissors and remove the
bone; that to her right there was a lady who was new to the job
and she could not do the work; that Johnson was to the right of
the new employee; that the new employee next to her was
moved by Raymundo because she could not do the work; that
she took the new employee’s place next to Johnson and there
was a boy on her other side;7 that Johnson, who is a tall women
and was using a knife, was not doing her job correctly; that
Supervisor Raymundo was temporarily taking an employee’s
place on the line; that she told Raymundo to tell Johnson to do
her job right because she could not work if Johnson was not
doing her job right; that Raymundo did not pay any attention to
her the first time; that she told Raymundo the second time to
tell Johnson to do her work correctly because she could not do
her job if Johnson did not do her work correctly; that then she
saw Raymundo speaking to Johnson but she could not hear
what was said since she was wearing earplugs; that she pushed
the chicken which was piling up in front of her back to Johnson; that then Johnson threw a piece of chicken at her which hit
her stomach; that Johnson looked at her with an ugly face, said
some ugly things, and wanted to hit her with the knife she was
holding; that Johnson raised the knife; that she ran behind the
boy next to her; that Raymundo called someone on the radio
and then told Johnson to go with him; that about 5 minutes later
Hernandez told her to leave the line and stay in a room with a
supervisor; that she told the supervisor what had happened and
she was sent back to work; that later she was called to go off
the line and she went to an office with Cua; that she was then
sent to take her break; that she then went to King’s office; that
King told her, “[Y]ou are new and you already have problems
with the employers—employees,” (Tr. 171); that she explained
7
At one point Rodriguez testified that the boy was on her right hand
side and Johnson was on her left hand side (transcript page 164).

271

to King what had happened and King gave her a yellow sheet
of paper to write out a statement; that she wrote out what happened and she signed it (GC Exh. 24);8 that King then told her
that everything that she “wrote on that paper was pure lie” (Tr.
173); that she told King that everything that she wrote was the
truth, that she did not like to use lies, and she only liked to
work with the truth; that King continued to say that everything
that she had written was a lie and she should tell the truth; that
King then told her that she was suspended and the Company
was going to look for witnesses; that she told King that she
should go get witnesses; that King told her that she had talked
badly—used bad language to the black lady and that she had
thrown chicken at the black lady; that she told King that she
should review the video tape; that she then went to the office
with Miguel for 20 minutes; that then she returned to King’s
office; that Campos and Miguel were present, in addition to
King; that King told her “to sign a paper [GC Exh. 25] that said
that I had abused a Company objects [sic] and that I threw
chicken,” (Tr. 175); that while she cannot read English, she
signed the document which was written in English;9 that King
made her sign the document; that King then told her that she
was suspended for a few days because she had thrown company
objects and the Company wanted to find out what happened;
that initially she refused to give King the company ID; that
King said, “[G]ive me the ID so I don’t have to be forced to call
the police. She told me to give her the ID, I told her no, and she
said don’t make me have to call the Immigration and I can send
you—so I’ll send you to your country,” (Tr. 177); that she then
gave King the company ID; that she saw a newspaper on
King’s desk which was about the work stoppage because the
picture in the paper was of a man showing the glove; that she
returned to King’s office on November 3; that, in addition to
King, Campos and Miguel were present; that King told her that
there was no work for her; that she asked King if they were
getting rid of her because of the work stoppage; that King told
her that she “didn’t have the right to ask that question because I
was only a worker there,” (Tr. 179); that she repeated the question and King gave the same response; and that she did not
throw chicken at the black lady.
On cross-examination, Rodriguez testified that during orientation one of the policies that was reviewed was that throwing
product was strictly prohibited; that she understood that any
8

The English translation reads as follows:
10-31-06
Today Tuesday
Something happens in the line that had a problem with the
black lady. It started when she was in the third cut, she was not
doing the chicken properly. For that reason I told her to make the
chicken right but she started to yell at me in the line and raised a
knife at me and she wanted to hit me and started strongly insulting me.
Only that happened today.
Luz Cordona Rodriguez
When I told her to calm down she screamed and threw the
chicken at me. (stomach)
9
In the “NATURE OF THE INCIDENT” portion of the form the
following appears: “Throwing product and cursing at another employee. Luz is being suspended pending investigation. She will return
on Friday 9am (11–3–06) for job review.”

 272

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

employee who threw product would be terminated; that she did
not know that there was a mechanical problem on her original
line on October 31; that she was having a problem with the
work of the black lady and the lady next to her; that while she
complained to Raymundo about the black lady she did not complain about the other lady who was new and not doing her job
correctly; that the other lady who was new was, like herself,
Hispanic; that the new lady next to her was using scissors and
doing the same job she was doing; that since the new lady next
to her was not doing her work correctly, it meant that both legs
were coming to her, Rodriguez, to further process; that Raymundo was across from her and the black lady was to her right;
that the Hispanic lady who was new and not doing her job correctly was between her and the black lady up until the time that
Raymundo removed her; that she spoke to Raymundo across
the line about the black lady not doing her job correctly; that
when she was in King’s office King called Miguel by radio and
Miguel came to King’s office; that by the time Miguel came to
King’s office King had already told her that she was being suspended; that she did not want to give back her ID because she
did not do anything wrong, she did not throw any chicken; that
she did not tell King and Miguel that she had thrown any product; that she picked up the chicken because it was piled up, and
she handed the chicken to the black lady; that she took five
pieces of chicken and put it where the black lady was working;
that she did not pick up the chicken but rather she pushed it to
the black lady who was working next to her; and that at no time
did she actually lift the chicken off the table.
Subsequently, Rodriguez testified that she saw the plant floor
on the video monitor in King’s office; that she saw a newspaper
in King’s office regarding the work stoppage and not an 8-1/2 x
11 printed e-mail sheet of paper; that King did translate into
Spanish what she had written in English on General Counsel’s
Exhibit 25; that King did not translate into Spanish the handwriting at the top of General Counsel’s Exhibit 25, namely
“throwing product and cursing at another employee”; that King
simply told her to sign the paper acknowledging that she had
thrown product; that before she signed General Counsel’s Exhibit 25 King told her that the document indicated that she had
thrown product; that King told her that she had abused the
Company; and that King did not tell her that she had thrown
product, King told her that she had abused the Company, or
taken advantage of the Company.
On recross, Rodriguez testified that King told her that General Counsel’s Exhibit 25 said that she had thrown an object of
the Company; that King did not explain what General Counsel’s Exhibit 25 said but rather King simply told her that she
had abused the Company; that King told her that she had
thrown an object of the Company, had abused company property, and had used bad language; that King told her to recognize
that she had abused the Company and to sign the document
(GC Exh. 25); and that she understood when she was signing
the document that she was being suspended for 3 days and being asked to come back on November 3.
On redirect, Rodriguez, who is about 5-feet tall, testified that
she always did what King told her to do.
Raymundo testified that he supervises lines 11, 12, 13, and
14 in the leg debone department, which is department number

1145; that on Tuesday he saw a discussion, an argument between Rodriguez and Johnson; that at the time he was working
on line 11 taking the place of a worker who went to the rest
room; that neither Rodriguez nor Johnson, both of whom work
on line 16, normally work for him; that there was a mechanical
problem that day with line 16 so Rodriguez and Johnson were
moved to line 12; that the employees working on line 12 face
the employees who work on line 11, and the line runs between
these two tables; that Johnson was working with a knife and
Rodriguez was working with scissors; that there was one employee between Johnson and Rodriguez and while he could
recall that the person was a new employee, he could not recall
the employee’s name; that he did not remove the employee who
was working between Rodriguez and Johnson from the line that
day; that neither before nor during her argument with Johnson,
did Rodriguez say anything to him about the performance of
either Johnson or the new lady who was working between her
and Johnson; that he noticed that Johnson was passing the legs
with a bad cut; that he saw Rodriguez take down the leg with
the bad cut from the hook and “throws it to Dominique” (Tr.
208); that “the line comes from there, there was a person in the
middle, then she takes it—the person in the middle takes it and
throws it” (id); that Luz threw it with a side arm motion approximately 3 yards; that while he demonstrated with a pen,
standing up, that the object was held in his right hand and was
thrown in a side arm motion across his chest to his left, Johnson
was actually to the right of Rodriguez, and, therefore, the product would have had to be thrown in the opposite direction than
he demonstrated; that Rodriguez would have had to return the
product to her right to Johnson; that when Rodriguez threw the
leg in front of Johnson she started to argue; that Johnson told
Rodriguez, “[C]ome on, push me” (Tr. 212); that Rodriguez
said something in English to Johnson; that he saw Rodriguez
throwing the chicken leg two times; that the argument or discussion between Johnson and Rodriguez occurred when Rodriguez threw the leg the second time; that he did not see Johnson
throwing any product that time of day; that Johnson left the line
after the argument; that he called Hernandez who went to look
for Johnson; that Hernandez called him and told him to take
Rodriguez to human resources; that 5 or 10 minutes later he
was asked to come to human resources and King asked him to
write what he had seen;10 that he did not verbalize to King what
10

The statement, which is in Spanish, was received as R. Exh. 21.
As translated it reads as follows:
I was in Line 11 helping the person that asked me a favor to
help because of the need of having to go to the bathroom. The
people that are on Line 12, Artora moved them from Line 16 to
Line 12. I only saw—I only saw that Ms. Dominique stopped
passing the legs - stopped passing the legs badly cut and stopped
passing - and stopped passing the leg without a cut and the other
lady took or lowered the leg from the hook and threw it on the table of the line where the lady Dominique does the third cut. Dominique raised her voice and the other answered the same in a
raised voice, and Dominique got angry—got angrier, raising her
hands saying hit me or push me with a knife in the - in the hand. I
didn’t see if Dominique threw something of chicken—some part
of the chicken to the woman because I was working. Daniel Raymundo. [Tr. 221 and 222.]

 CASE FARMS OF NORTH CAROLINA

he had seen; that King then asked him to go back to the line and
ask the employees if they saw what happened; that he spoke to
five employees and only one, Ronda, said that he saw what
happened; that he talked to Ronda in human resources with
King present; that Ronda gave King a written statement and he
told King what he saw; that Ronda told King that Johnson was
doing a poor job and that Rodriguez “threw the legs back” (Tr.
216); that Ronda did not say whether he saw Johnson throw
anything; that there are video cameras that point toward the
lines 11 and 12, but the cameras are far from those lines in that
they are in front of line 1 and beyond; that there are monitors in
King’s office that show “I think from Line 1 to Line 8” (Tr.
217); and that line 1 is closer to the camera than lines 11 and 12
are.
On cross-examination, Raymundo testified that Johnson is a
big women, very tall, and very heavy; that when an employee
leaves the line they are supposed to get someone to relieve
them; that the employee has to have permission to leave the line
or they can get a warning; that Ronda was next to Rodriguez on
the line; that he did not know the name of the women who was
working between Johnson and Rodriguez, she still worked for
the Respondent, but she told him that she did not see what happened; that he saw the legs that Rodriguez was taking down
from the hook and they were not cut the way they were supposed to be cut by Johnson; that “after Johnson sent a leg
through that wasn’t properly cut, Rodriguez picked it up and
put it back in front of Ms. Johnson to do the right cut” (Tr.
228); that Rodriguez was trying to do her job and if Johnson
was not doing her cut correctly, Rodriguez could not do the
correct cut; that Rodriguez, who was using scissors, could not
correct the mistakes Johnson, who was using a knife; that Rodriguez should have taken the product down and shown him the
bad work that Johnson was doing; that he was not watching
Johnson and Rodriguez, “I wasn’t really looking because I was
working for someone” (Tr. 229); that Joint Exhibit 1 is his diagram of lines 11 and 12 and who was working where on the day
in question; that hooks and a conveyor belt for the finished
product move between lines 11 and 12; that the employees are
about 2 feet from each other on lines 11 and 12; that he was
approximately 3 feet from Johnson and at that distance he could
tell that Johnson’s cut was improper “[b]ut I was working, so I
couldn’t see specifically the cut that Ms. Johnson was doing”
(Tr. 238); that when Johnson raised her voice he called over to
Johnson to calm down but in that moment she left the line; that
he did not go to where Johnson and Rodriguez were on line 12
because he was working as relief on line 11; that in the affidavit
he gave to the National Labor Relations Board (the Board) he
did not indicate that he called Hernandez but he did call Hernandez; that when Johnson got angry she turned to face Rodriguez holding the knife up pointing toward the ceiling and she
told Rodriguez to come hit her; that when the employee who he
was relieving came back to the line he took the employees from
After the statement was translated, it was submitted that instead of
“stopped passing the leg” what was written meant “allowed to pass the
legs that were badly cut and allowed to pass one leg that was not cut.”
Tr. 222. The interpreter testified that she translated as she saw it written.

273

line 12 to work somewhere else; that Johnson did not ask permission to leave the line; that all the other employees on line 11
stopped working; that he did not give Johnson a warning for
walking off the line or for not making good cuts; that King did
not ask him if he saw Johnson throw product; that he told King
that Rodriguez gave the chicken back to Johnson to make the
right cut; that Johnson returned to the line about 30 or 40 minutes after her confrontation with Rodriguez; that Rodriguez
never returned to the line; that he heard King ask Ronda if he
saw Rodriguez throw product; and that King did not ask Ronda
if he saw Johnson throw product.
On redirect, Raymundo testified that in his affidavit to the
Board he did indicate that Hernandez came over to the line and
talked to him after about 2 minutes; that when he testified on
cross-examination that Rodriguez “put” or “laid” the product
back in front of Johnson he meant “[s]he threw it” (Tr. 251) in
the manner he demonstrated earlier; that other employees have
been terminated for throwing product; and that he did not know
of anyone who has thrown product who did not get terminated.
On recross, Raymundo testified that with respect to the employees who were terminated for throwing product, two of
them were playing and a chicken landed on another employee;
that the employees were throwing chicken at each other and the
chicken hit the floor; that when the employees who are using
the scissors on line 12 are finished their cut they place the
product on the conveyor belt; and that Rodriguez did not place
the product back in front of Johnson but rather Rodriguez threw
it in front of Johnson.
Subsequently, Raymundo testified that an employee using
scissors is expected to process about six chickens a minute and
while he was performing this function on line 11 he was not
attempting to engage in any supervisory functions; that notwithstanding that his attention was focused on the continuously
moving line he was working on, he noticed that there was a
problem on the next line “[b]ecause you could see and hear that
they were raising their voices” (Tr. 256); that he heard raised
voices the second time; that he was aware of the first time because “I noticed when Ms. Luz [Rodriguez] threw the chicken
in front of Dominique [Johnson]” (id.); that while he was working on line 11 as relief he was performing a dual function in
that he was acting both as an employee processing chickens and
at the same time he still wore the supervisory hat in that he was
watching other employees; that before the incident Rodriguez
did not speak or attempt to speak to him about what was going
on as far as the performance of Johnson was concerned; that he
wore earplugs on October 31, 2006, when he was working on
line 11; that the fact that he was wearing ear plugs and the fact
that there is “noise everywhere” (Tr. 257) makes it difficult to
hear what is being said at the next table over; that he did not see
Rodriguez go behind Ronda during the incident with Johnson;
and that Rodriguez turned to face Johnson, and Rodriguez
backed up but she did not go behind Ronda.
On further redirect, Raymundo testified that he is not able to
do more than six chickens a minute with scissors; and that he
was about 6 feet from Johnson when the incident occurred.
Ronda testified that he recalled the incident between Johnson
and Rodriguez; that he was working on line 12 that day next to
Rodriguez, trimming legs; that Johnson was next to Rodri-

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

guez;11 that Johnson was passing legs badly cut; that Rodriguez
threw the leg on top of the table; that Johnson stopped and got
angry; that Johnson said something in English, which he did not
understand and Rodriguez responded with two words in English which he did not understand; that he then told Raymundo
what was going on and about 10 minutes later Raymundo came
and got both Johnson and Rodriguez; that about 20 minutes
later Raymundo asked him if he saw what happened and he told
Raymundo that he did see what happened; and that Raymundo
asked him to go upstairs to King’s office to tell her what happened; that he told King that the black lady had passed the legs
poorly cut; and that he also told King:
[Johnson] passed the first leg and then she passed the second
leg, and that’s where Luz took the leg and threw it on top of
the table. And then the lady—the black lady stopped, turned
to look at Luz, and Luz looked back at her. They both looked
at each other. And the black woman started to speak, say
things in English, and Luz responded some things also. [Tr.
267.]
Ronda further testified that during the incident in question
Johnson had a chicken leg in her hand and she threw it on top
on the table because she was angry; that the black lady placed
the knife, which she had in her hand, on top of the table; that he
told King what happened, King wrote out a statement, he reviewed it, and then he signed the statement (R. Exh. 22); and
that the statement is accurate.
On cross-examination, Ronda testified that when chicken
that was badly cut came to Rodriguez she threw it normally but
she threw it; that Rodriguez did not throw it strongly, “[s]he
threw it normally, like slowly” (Tr. 277); that when the other
leg came Rodriguez threw it softly on the table in front of Johnson; that after he is finished trimming the leg he throws it on
the conveyor belt; that when the leg is poorly cut, he takes the
leg and gives it to the person who was supposed to cut so that
they can cut correctly; that he places the leg on the table in
front of the person who was supposed to make the proper cut
with the knife; that when Johnson became angry she put her
knife on the table and she turned to face Rodriguez; that 20
minutes later both Johnson and Rodriguez left the line; and that
when he spoke with King she asked him if he saw Johnson
throw chicken.
Subsequently, Ronda testified that after Johnson and Rodriguez had the verbal exchange he called Raymundo and told
Raymundo what was going on, and “when . . . [Raymundo] saw
it they [Johnson and Rodriguez] were arguing” (Tr. 283); that
he whistled at Raymundo who was on the other line [“either
Line 11 or Line 10” (id.)] and he called Raymundo; that at the
time Raymundo was talking and teaching the work to other
workers; that when he called Raymundo he saw what was happening and Raymundo came immediately to line 12; that he
told Raymundo that the black lady was not working well; that
when he told Raymundo this Johnson and Rodriguez had al11
At this point, counsel for the Respondent asked “[d]o you recall if
there was another lady in between Luz and Dominique” to which
Ronda replied, “[y]es, there were. But I don’t remember who they
were.” Tr. 265.

ready argued; that the black lady was still on the line when he
spoke with Raymundo; that Raymundo said that he would take
care of it and then Raymundo spoke with the black lady; that he
could not hear what Raymundo said to Johnson; that he could
not remember if the black lady continued to work on the line or
if Raymundo took them off the line; that he thought that Rodriguez tried to get Raymundo’s attention with respect to Johnson
not doing her job properly; that on October 31, 2006, he had
two conversations with Raymundo, namely when he told Raymundo Johnson was not doing her job properly and when Raymundo asked him if he saw what happened; that there are no
vertical partitions dividing the table that he and the other employees were working at on line 12; that the long table is a flat
surface where eight employees work; that there is nothing between one employee and another employee working at the table
on line 12; that he told King that he saw the black lady throw
chicken on top of the table; and that King only asked him if
Johnson had thrown a leg or a piece of meat; and that during
the exchange Rodriguez did not attempt to get behind him so
that he would be between her and Johnson.
On recross, Ronda testified, “I told her [King] that Luz first
threw a chicken leg and then the black lady threw also a
chicken leg.” (Tr. 292.)
King testified that she tells employees that if they feel intimidated in any way, if they have a problem of any kind, they
should come and see her and they will not get in any trouble;
that it does not matter if they are on the line when they want to
come to see her; that this has happened before and after October 31, 2006; that Respondent’s Exhibit 2 is the employee
handbook; that Good Manufacturing Practices are rules which
are United States Department of Agriculture regulated and
which were developed basically for food safety; that Respondent’s Exhibit 3 is a Power Point presentation Respondent
shows to all of its employees; that page 12 of Respondent’s
Exhibit 3 indicates that “[t]hrowing product or any other item is
PROHIBITED,” and that “[a]ny person that violates this rule
will be terminated immediately”;12 that Respondent’s Exhibit 4
is the Power Point orientation presentation; that during her
orientation Rodriguez signed on October 13, 2006, a Spanish
rendition of “Good Manufacturing Practices & Operation Sanitation Procedures” which includes, inter alia, “23. Throwing
product or any other item is PROHIBITED. Any person who
violates this rule will be terminated immediately,” Respondent’s Exhibit 19; that on the morning of October 31 she became aware of a problem between Rodriguez and Johnson
when Johnson, a large black lady who had had problems with
Hispanic employees in the past, came to her office and told
King her version of what happened between her and Rodriguez;
that Johnson’s “version of the story was apparently Luz [Rodriguez] wasn’t happy with her cuts, and she started throwing the
meat back at her. . . . and by the second time when she threw
meat back at her . . . they engaged in . . . [a] verbal confrontation” (Tr. 366); that she had Johnson write a statement about
12
This entry includes a picture of a chicken wing on the floor and a
drawing of person throwing a pencil, both of which have an X over
them.

 CASE FARMS OF NORTH CAROLINA

what happened;13 that she then asked that Rodriguez be brought
to her office; that Rodriguez “made it out to be that Dominique
was the only one that had thrown product at her, that had
cussed her out, that she wasn’t doing her job right. . . . [Johnson] was not doing her job right and she was just giving it back
to her” (Tr. 368); that Rodriguez gave a written statement,
General Counsel’s Exhibit 24, which is described above; and
that Raymundo
told me he was right in front of them; that he saw the whole
thing; that he saw Luz throwing the—in fact throwing the
product at Dominique, and confirming the first story I heard
that they had a verbal confrontation; that they had looked at
each other, had faced each other, and that there was no physical contact. And he didn’t see Dominique throw any product.
[Tr. 369.]
King further testified that Raymundo gave a written statement
(R. Exh. 21); that she asked Raymundo to find out if any other
employee saw what happened and he brought Ronda to her
office; that Ronda told her that he saw Luz get mad at Dominique for not doing her job right and throwing the product back
at her; that she asked Ronda if he saw Dominique throw product at Luz “and he told me no” (Tr. 371); that she helped Ronda
write out a statement by asking him again what happened and
he dictated while she wrote; that she gave the statement to
Ronda, he read it, she asked him if there were any changes, he
said, “[N]o,” and Ronda signed the statement; that at no point
during her conversation with Ronda did he say anything about
Johnson having thrown product; that she sent Ronda back to
work, called Rodriguez back into her office, and told her that
she was going to have to suspend her for throwing product; that
while throwing product calls for immediate termination, she
suspended Rodriguez so she could discuss the matter with
Campo since she was not the one who makes the final decision
about terminations; that when she told Rodriguez that she was
suspended for throwing product Rodriguez asked her if Dominique was going to be suspended; that she prepared a document
memorializing the suspension and she read the document in
Spanish to Rodriguez word for word, and then had Rodriguez
sign the document; that she told Rodriguez to come back the
following Friday for a job evaluation; that she did not tell Rodriguez that her version of the event was all lies; that she did not
call Rodriguez any names; that Rodriguez was suspended because there had to be preparation for the job review, “[y]ou
13
R. Exh. 20. The statement, which was not offered for the truth of
the matter asserted therein, reads as follows:
10-31-06
2nd cutter was not properly cutting and it was resulting in me
getting behind and that 2nd cutter threw the 2nd leg at me. I said
what are you doing. She said you can’t cut. I said you ain’t about
2 [sic] tell me I can’t cut. She said Fuck you. I said come and fuck
me up. I raise[d] my arms, she walk toward me with the scissors
in her right hand. I backed up. The 1st cutter said what’s going
on. She turned back facing the cutting board. I walk[ed] off the
line throw[ing] my cutting glove into the sink. Christian stop[ped]
me and said where are you going. I said I’ m not working no
more. I come 2 [sic] Victoria[‘s] office cause things was going to
. . . [escalate].
Johnson did not testify at the trial herein.

275

have to look at whether the employee’s probationary or not. . . .
previous work history . . . ., attendance . . . ., precedence, what
has the Company done before, [and] consistency in any—in
any human resource department is always the key” (Tr. 377 and
378); that she “was pretty much told by Armando [Campos]
and Charles who had been there for over 10 years now (apparently referring to Charles Rigdon, who is the Respondent’s
general manager and who is located in Morganton); and that
throwing product has always been termination, period. So there
was no question in my mind then that Luz was going to be terminated” (Tr. 378); that Respondent’s Exhibit 23, which is a
payroll change notice that she prepared for Rodriguez dated
November 3, 2006, gives as the reason for termination “Misconduct”; that misconduct could be anything; that she met with
Rodriguez on Friday, November 3, 2006, and she had Raymundo present because Rodriguez had been so ugly toward her
when she suspended Rodriguez; that Cua came into the meeting
later because he was the one who was going to have to walk her
out; that at the November 3 meeting she asked Rodriguez if she
remembered that during orientation she was told that throwing
product calls for termination and Rodriguez said, “[Y]es”; that
she then told Rodriguez that she was terminated; that Rodriguez
allegedly said, “[T]ell me that you’re suspending me because
I’m with the Union” (Tr. 380); that she told Rodriguez that she
was being terminated for throwing product; that Rodriguez
again said, “[T]ell me you’re terminating me because I’m with
the Union”; that she told Rodriguez that her job was being terminated; that Rodriguez left with Cua; that she has two monitors in her office, with one showing the outside view of the
front and back of the property, and the other one showing nine
different views from nine different cameras inside the plant;
that she did not have anything pointing out to leg debone; that
there is a video tape for the nine cameras which only records
what she has on the monitors; that there is a monitor in Plant
Manager Doug Hatley’s office which is facing line 1 leg
debone but it would not be able to catch anything in the middle
of the leg debone lines; that other employees have been terminated for throwing product, Respondent’s Exhibits 24 (Luis
Aguilar), 25 (Juleo Tomassini for “throwing chicken down a
drain”), 26 (Raynaldo Moralez), and 27 (Jeronimo Say); and
that she did not say, “[Y]ou’ve only been here a little while and
you’re already causing problems” either during her interview
meeting with Rodriguez or her suspension meeting with Rodriguez.
On cross-examination, King testified that when the line is
running and an employee leaves the line without permission,
this causes the line to stop; that if an employee feels intimidated
enough to cry, the employee has the right to stop the line anytime the employee wants to come to talk to her; that employees
are routinely issued warnings for leaving the line without permission, for cussing, and for not cutting the chicken properly;
that she was not working in the plant when the incident covered
by Respondent’s Exhibit 26 occurred, she did not review the
documents in this employee’s personnel file before she testified
herein, and there are no documents in the employees personnel
file to reflect what the circumstances were surrounding the
throwing product incident by Moralez (Tr. 407); that on General Counsel’s Exhibit 31, which is a copy of a computer record

 276

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

of Moralez’ termination, the reason given for the action is
“Horseplay/throwing product”; that Moralez’ payroll notice (R.
Exh. 26), just indicates throwing product; that she was not employed at the involved facility when the incident covered by
Respondent’s Exhibit 27 occurred, she did not review the
documents in that personnel file before she testified at the trial
herein, and General Counsel’s Exhibit 30 which is a copy of a
computer record of say’s termination, gives as the reason for
the action “Horseplay/Throwing product”; that she was not
employed at the involved facility when Aguilar was discharged
for throwing product, she did not review his file before she
testified at the trial herein, and, therefore, she did not know the
circumstances under which he was discharged; that she was not
employed at the involved facility when Tomassini was discharged for “throwing chicken down the drain” (R. Exh. 25),
and she did not review his file for any notes concerning the
circumstances of him putting the product down the drain before
she testified at the trial herein; that she would describe what is
alleged to be Tomassini’s act as destruction of company property; that Rodriguez denied throwing the product at Johnson but
Rodriguez said that she threw the product at the table; that after
she suspended Rodriguez she did speak to a couple of the employees who were working near Rodriguez and Johnson when
the incident occurred but they denied seeing anything and there
was no need to put anything in the file for it; that she did not
remember which employees she spoke with regarding what
they witnessed; that she did not recall whether she said anything about speaking to the other employees when she gave her
affidavit to the Board; that the prohibition against throwing
product refers to the throwing of anything; that General Counsel’s Exhibit 29, which refers to employee Marcelino Bulux
who is still employed at Respondent, indicates that Bulux threw
a handful of ice at another employee hitting him on his side;
that General Counsel’s Exhibit 28 is a disciplinary report, a
written warning, for Juan Garza dated “3–22–07” for engaging
in horseplay where he picked up another employee and threw
the other employee (partially on the belt where product is
transported which could result in line shutdown); and that Cynthia Garza is still employed by the Respondent notwithstanding
that she was involved in an incident where she hit another employee in the face with chicken neck with the head still attached
(GC Exh. 26). Counsel for Respondent stipulated (a) there was
nothing in Cynthia Garza’s file that would reflect any discipline, and (b) with respect to General Counsel’s Exhibits 34
and 35, both of which are copies of computer records and both
of which give as the reason for termination “Horseplay/Throwing product,” that there is nothing else other than what is in this
record that would reflect the circumstances of the incidents
involving Aguilar and Tomassini, respectively.
Subsequently, King testified that she did not review the
video for the one camera that faced the leg debone department
because there was no way that it would have recorded what
happened between Rodriguez and Johnson since you could
barely see lines 1 and 2; that she has told employees that they
can just walk away from the line if they feel intimidated without asking permission or speaking to a supervisor; that she
herself did not do an independent review to look at prior personnel decisions regarding throwing product but rather she

asked Campos and Rigdon what Respondent had done before
with incidents of throwing product; that she personally did not
look at the personnel files of other employees who were terminated for throwing product; that there are two cameras in the
leg debone department; that she did not know if the cameras in
the leg debone department can be adjusted so that they take in
more than lines 1 and 2; that she did not look at the cameras but
rather just at the monitor; and that she did not review any tapes.
On recross, King testified that she assisted counsel in formulating Respondent’s response to the unfair labor practice
charges; that in the response it is indicated that “Respondent
admits that it maintains a number of security cameras on premise and, in fact, there are three in what is generally referred to
as the Leg Debone area” (Tr. 451); that she told employees that
they could walk away from the line if they are upset or intimidated; that she did not have a meeting where she told all the
employees this, it was just a practice that everybody knows
from previous incidents when people had walked off the line to
come and talk with her; that Campos, Yolandra Cardinez, and
Hernandez told her that there had been other discharges for
throwing product in the past; that Campos told her, for Rodriguez’ job review, that if throwing product meant termination,
then Rodriguez should be terminated as that was the past practice; that Campos did not have any documents with him during
this conversation to show that other people had been discharged
for throwing product, and he did not give her any specific examples of discharges for this conduct; and that she never
looked in the documents for examples until she was responding
to the unfair labor practice charges.
Cua testified that King called him to her office and told him
that he had to walk someone out who she suspended; that he
went to King’s office; that he overheard King telling Rodriguez
that she “needed to sign her statement, whatever she been told
her, but she relayed Company policy, and just sign here. . . . she
. . . started reading to her, and then said, ‘Here. Sign it right
here.’ And she signed it, and then I walked her out” (Tr. 468);
that on Friday, November 3, he was present for the whole meeting when Rodriguez was informed that she was being terminated; that during the November 3 meeting King told Rodriguez that she was terminated for throwing product and this was
something that was explained during orientation; and that Rodriguez told King two times that she was terminating her because she protested the day the employees stopped working.
Subsequently, Cua testified that 23 chicken legs a minute are
processed on line 11 in leg debone; and that the individual employee working on line 11 is expected to individually process
23 chicken legs a minute.
Analysis
Paragraph 6 of the complaint alleges that on October 27 Cua
and King threatened employees with calling immigration.14
14
Counsel for the General Counsel’s motion to correct the complaint
to correctly spell the surname of the human resource supervisor identified therein is granted. The name Miguel Cua will be substituted for
Miguel Puac. Counsel for the General Counsel also makes another
motion for the first time in her brief, namely to amend the complaint to
allege that Respondent violated Sec. 8(a)(1) of the Act by conditioning
continued employment with Respondent on a waiver of the right to

 CASE FARMS OF NORTH CAROLINA

The General Counsel on brief, contends that it is a violation
of the Act to threaten employees with calling the Immigration
and Naturalization Service (INS or Immigration) when employees engage in union or protected activity, Precision Concrete,
337 NLRB 211 (2001), enfd in relevant part at 334 F.3d 88, 93
(D.C. Cir. 2003), and Westchester Iron Works Corp., 333
NLRB 859 (2001); that it is more than probable that Cua made
this violative threat; that King’s denial that she threatened to
call Immigration is not credible in that throughout the trial
King’s testimony was inconsistent and often contradicted Respondent’s other witnesses; that King had a propensity to form
testimony to suit Respondent’s case; and that Rodriguez was a
credible and forthright witness.
Respondent on brief, argues that both Cua and King denied
threatening to call Immigration on October 27 and the evidence
offered by the General Counsel simply is not credible; that the
only witness offered in support of this allegation is Rodriguez,
who is a most unimpressive witness; that no other employee
supported Rodriguez’ testimony; that although there were at
least 50 other employees in the vicinity when King was speaking to employees when they came back to get their paychecks,
including Rodriguez’ friends, Edgar and Martha, no other employee supported Rodriguez’ dramatic testimony that King told
the employees “not to force her to call the police or [I]mmigration because I will send you back to your country” (Tr. 161);
that Rodriguez’ testimony about these threats has the ring of
being contrived in that in both instances she alleges that Cua
said, “[D]on’t make us call—have to call Immigration” (Tr.
157) and King allegedly said, “[N]ot to force her to call the
police or Immigration” (Tr. 161); that the similarity of these
alleged statements indicates fabrication; that Rodriguez in general was contradicted and incredible in numerous respects; that
Rodriguez admittedly lied when she was asked for her company
ID on October 31; that while Rodriguez testified that she knew
no English at all (Respondent cites transcript page 200 where
engage in future concerted activity when King on October 27 told employees that when they return to work on October 30 the glove policy
put into effect on October 27 would still be implemented, and that if
they did not want to work under that policy “don’t even bother coming.” According to her own testimony, what King said was as follows:
Look, look guys, this is what you wanted, you got what you
wanted. When you come back on Monday, you’re going to get
your three pairs of better yellow gloves you wanted. If you want
to work, come to work. But if you don’t want to work, don’t even
bother coming. Let’s not go through this again. [Tr. 337.]
It does not appear that with this language Respondent, by King, was
conditioning continued employment on a waiver of the right to engage
in future protected concerted activity. What King was saying was that
the policy was not going to change, if they wanted to work with the
new policy that was fine, but if they did not want to work on Monday
they should not bother coming to work. It does not appear that King
was either explicitly or implicitly telling the employees that to be able
to go to work on Monday they had to waive their right to engage in
future protected concerted activity. Additionally, whether this language
in the circumstances existing here is a violation of the Act is first being
brought up on brief after the close of the trial. Does counsel for the
General Counsel believe that Respondent has had sufficient notice that
the lawfulness of this language would be at issue? Counsel for the
General Counsel’s Motion to further amend the complaint is denied.

277

Rodriguez testified, “I don’t even know how to speak English.”
But at transcript pages 149 and 150, at the outset of her testimony, Rodriguez was asked if she spoke English and she replied, “No, a little bit.”), Ronda and Raymundo testified that
Rodriguez uttered at least two words in English during her
confrontation with Johnson; that while Rodriguez testified that
she hid behind Ronda during her confrontation with Johnson,
Ronda, and Raymundo testified that this was not the case; and
that the employees’ work stoppage had become unprotected at
the time the threats were allegedly were made and consequently, even if, assuming arguendo, they were made, they did
not violate the Act.
I do not believe that counsel for the General Counsel has
demonstrated by a preponderance of the evidence that Cua and
King threatened to call Immigration on October 27. Counsel for
the General Counsel produced only one witness to support
these allegations. That witness, Rodriguez, is one of the two
alleged discriminatees in this proceeding. She has a monetary
interest in the outcome of this proceeding. Her testimony is not
corroborated albeit there were many, many people present
when the statements were allegedly made. Additionally, it is
not clear why King, on October 27 when she was telling the
employees that the glove policy was going to be enforced on
Monday, October 30, and the employees had to make up their
minds whether they wanted to work on Monday, would tell the
employees to leave and not to force her to call Immigration.
There is no allegation that the employees were engaged in a sit
down strike when they came back to the facility in the afternoon to pick up their paycheck. Indeed it appears that it was
just the opposite. At least one employee, according to Rodriguez’ own testimony, told King that they had come to pick up
their paycheck and they did not want to hear what King had to
say. In other words, it has not been shown that the employees
wanted to do anything other than get their paychecks and get
out of Respondent’s facility. As pointed out by Respondent,
Rodriguez admittedly lied about her company ID I believe that
Rodriguez also lied under oath about what she said in English
to Johnson during their confrontation on October 31. I believe
that the two words that Ronda and Raymundo heard Rodriguez
say to Johnson during this confrontation were “Fuck you.” (See
R. Exh. 20 which was not received for the truth of the matter
asserted.) A threat to call Immigration is a very serious charge.
Counsel for the General Counsel has not produced sufficient
evidence to warrant a finding that this threat was made by either Cua or King on October 27.
Paragraph 7 of the complaint alleges that Respondent terminated Zamora on October 30 and Rodriguez on October 31
because they engaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protection and in
order to discourage employees from engaging in such concerted
activities for the purpose of collective bargaining or other mutual aid or protection.
With respect to Dimas (a/k/a Zamora), the General Counsel
on brief contends that the evidence establishes a prima facie
violation under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and
NLRB v. Transportation Management Corp., 462 U.S. 393, 395
(1983) (approving Wright Line analysis) in that (a) Dimas was

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

engaged in protected concerted activity when she participated
in the walkout and when she acted as spokesperson and talked
to newspaper reporters; (b) there is no question that Respondent
knew Dimas’s role since King testified that Wilson e-mailed
her the newspaper article in which Zamora’s (Dimas) name
appears; and (c) the timing of the discharge one working day
after Dimas’ protected activity and the pretextual reasons given
for the discharge demonstrate Respondent’s motivation to rid
itself of Dimas and send a clear message to its remaining employees; that the reason given by Respondent for the discharge
is pretextual because Respondent treated Dimas as a probationary employee in October 2006 even though Dimas had worked
for Respondent since 1999, except for 4 months; that Dimas’
immigration status is not relevant to whether Respondent
unlawfully discharged her because the Act protects statutory
employees who are undocumented aliens, Sure Tan, Inc. v.
NLRB, 467 U.S. 883 (1984), and Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U.S. 137 (2002); that an administrative law
judge cannot base his decision to discredit an employee solely
on the employee’s use of a false social security number to obtain employment, Double D Construction Group, 339 NLRB
303 (2003);15 to the extent that the discharge of Dimas is based
15
That case is distinguishable. There the employee did subsequently
acquire his own valid social security number, and not long after his
termination, he provided information to the Respondent in order to
correct his own record. There, the majority of the Board concluded that
the judge’s discrediting of the employee was based solely on his use of
a false social security number to obtain employment; and that this
amounted to a disqualification of the employee for his conduct. Here,
Dimas did not acquire her own valid social number when she received
the SSA letter. Rather she went out and purchased a whole new identity, namely a new false name, a new false social security number
(card), a new false permanent resident card, and a new false birthday.
R. Exh. 6. And then she gave her new documentation to the Respondent
to keep her job. As pointed out in Hoffman Plastics, supra, this is a
crime. While she worked for Respondent under her new identity, she
never attempted to correct the record. When she testified at the trial
herein her remorse for using the identity of another person consisted of
her testifying, “I didn’t want to be without employment, and now I
regret doing it because it didn’t do me any good.” Tr. 148. Forgetting
the legal technicalities for the moment, common sense would dictate
that if a person is willing to commit a crime to get a job, then commit a
serious crime to keep the job, consideration must be given to the fact
that the person would commit a crime (intentionally, falsely testifying
under oath about material facts) to get back at those who, from her
viewpoint, took that job away from her. As noted above, Herrera testified that when he escorted Dimas out of the facility she told him that he
“cheated her out of her job.” Tr. 500. Dimas did not testify on rebuttal
to deny making this statement. By law, she did not have the legal right
to hold that job in the first place. Here, no matter what the outcome,
under Sure Tan, Inc., supra, and Hoffman Plastic, supra, there will be
no reinstatement or backpay for Dimas. To resolve whether she was
unlawfully terminated I do not have to, and I do not, rely on her credibility. This determination was made at the time of her testimony and
took into consideration her demeanor (lack of remorse for committing a
crime and she conveyed the distinct impression while testifying at the
trial herein the job was what mattered the most), the weight of the
respective evidence can be determined without including a consideration of Dimas’ lack of credibility and it does not affect her credibility or
the lack thereof, established or admitted facts are what they are in that
they do not rehabilitate this witness, and one would have to, in deter-

on credibility, the testimony of Dimas should be credited over
that of Respondent who cannot be found to be without fault in
the acceptance of a new name, social security number, and birth
date from an employee whom they had employed since 1999;
that King cavalierly testified that she had no right to question
Dimas about her new documentation notwithstanding that she
knew that Dimas had worked for Respondent since 1999; that
regardless of whether Dimas was a new probationary employee
or a senior employee employed at Respondent since 1999, Respondent failed to treat Dimas in the same manner as other
injured employees and instead seized upon a reason to discharge her; that while King told Dimas that she could not receive a leave of absence, Dimas was not asking for a leave of
absence; that Dimas was requesting light duty for 5 days; that
Respondent did not even attempt for Dimas to go to a company
doctor to determine if her pain, a type of pain commonly associated with the repetitive nature of the work, was work related;
that Respondent’s medical records and OSHA records establish
that Respondent has accommodated both work and nonworkrelated injuries for employees in their probationary period (i.e.,
probationary employee Alisha Rutherford was given light duty
after she sustained a nonwork-related injury (GC Exhs. 4 and
18) and beyond their probationary period (In addition to Rutherford, counsel for the General Counsel gave 14 examples of
Respondent’s approach in her brief.); and that, even though
Dimas did not ask for a leave of absence, those cases cited by
Respondent where it did not grant probationary employees a
leave of absence are distinguishable.
With respect to Dimas (a/k/a Zamora) and Rodriguez, Respondent on brief argues that the complaint by implication concedes that the October 27 protest was unprotected in that it is
not alleged that calling in the police was a violation of the Act;
that the General Counsel effectively concedes the unprotected
“tresspassory” (R. Br. 21) nature of the job action; that an employer can terminate leaders of an unprotected job action without violating the Act; that while discussing employee grievances with the press may in certain circumstances constitute
protected activity, this particular newspaper article cannot be
divorced from the unprotected work stoppage itself; that because the activities of Dimas and Rodriguez were not legally
protected the unlawful discharge allegations fail as a matter of
law; that the General Counsel failed to establish animus toward
either the work stoppage or the newspaper article; that Dimas
and Rodriguez were terminated solely for independent intervenmining inherent probabilities and reasonable inferences drawn from the
record as a whole, take into consideration that witness Dimas committed a serious crime to get her job (false social security number), she
admittedly committed a very serious crime to keep her job (As pointed
out in Hoffman Plastic, supra, it is a crime for an unauthorized alien to
subvert the employer verification system by tendering fraudulent documents.), and her only remorse in the end is that she regretted doing it
because “it didn’t do me any good.” Tr. 148. It is one thing to use a
nonvalid social security number. It is quite something else to buy another person’s identity. To treat such conduct lightly could be misconstrued as encouraging a practice which has become widespread, namely
identity theft, which practice can have a devastating effect on its victims, even if limited to just trying to straighten out social security records and the ramifications which flow therefrom.

 CASE FARMS OF NORTH CAROLINA

ing events that occurred early the following week; that the
General Counsel has failed to make a prima facie showing sufficient to support an inference that the protected conduct was a
motivating factor in the employer’s decision to terminate these
two employees; that there must be some evidence of employer
animus directed at the employee’s protected activity; that an
employer may act on the reasonable belief that an employee
committed the offense charged; that the issue is whether the
employer’s belief as to the facts was honestly held and whether
these facts (as believed) were such that the employer likely
would have been motivated to act as it did; that while the timing of the two terminations brings into question an inference of
animus, the timing actually favors Respondent, close timing
between protected activity and termination may go a long way
toward establishing animus when there is no apparent intervening cause for the termination, but when there is such an intervening cause and the termination follows shortly thereafter, the
timing factor favors the employer, Woodruff & Sons, Inc., 265
NLRB 345, 347 (1982); that this is not one of those rare cases
in which the Board can infer animus “from evidence of blatantly disparate treatment” (R. Br. 27), New Otani Hotel &
Garden, 325 NLRB 928 (1998); that although counsel for the
General Counsel attempted to show disparate treatment she fell
short of establishing “blatant disparity” (Id.); that while Respondent sometimes accommodated alleged workers’ compensation injuries that later turned out to be nonwork related, Respondent did so only while the cause of the condition was being
investigated and only when the safety department was supervising and directing the employee’s medical care; that “[t]here is
no evidence that Respondent ever accommodated an employee
based on a note that the employee obtained from her own personal physician” (Id. at 28, emphasis added); that Respondent
treated Dimas (a/k/a Zamora) as a probationary employee since
September 2006, long before the work stoppage; that there is no
showing of blatant disparity regarding Dimas; that with respect
to Rodriguez, there is zero tolerance for throwing product, two
coworkers and a supervisor told King that they observed Rodriguez throwing product, whether she actually did is immaterial,
and Respondent clearly believed in good faith that she had
thrown product; that whether Johnson threw product is not
clear; that Raymundo did not see Johnson throw product; that
Johnson denied throwing product (This would be hearsay since
Johnson did not testify at the trial herein.); that while Ronda
testified that he saw Johnson throw product and he told King
about this, the statement he signed does not indicate that Johnson threw product and he testified that the statement was accurate and it contained everything he told King; that Johnson was
terminated a few months after her confrontation with Rodriguez
for attendance problems and there was no reason for King not
to terminate her over her October 31 confrontation with Rodriguez, if Johnson did in fact throw product; that there is insufficient record evidence upon which to base a finding of unlawful
motivation; that counsel for the General Counsel has not shown
animus; that assuming arguendo that the General Counsel established a prima facie case, Respondent carried its Wright
Line, supra, burden in that Respondent’s standard practice regarding probationary employees who are medically restricted
for personal reasons is to terminate their employment, subject

279

to reapplying and being rehired after 30 days; that Dimas was
treated consistently with this practice; that Rodriguez was terminated consistently with Respondent’s policy and practice of
terminating employees who throw product; and that assuming
arguendo that Dimas was unlawfully terminated, she is not
eligible for the standard reinstatement and backpay remedy
since the decisions in Sure Tan, Inc., supra, and Hoffman Plastic, supra, hold that the Board is without power to award reinstatement or backpay to an alien.
Regarding the arguments made by Respondent with respect
to Dimas (a/k/a Zamora), the fact that it did not specifically
take any action against Dimas for her role in what Respondent
describes as an unprotected job action demonstrates that Respondent was not relying on this at the time of her termination.
The same would apply with respect to Rodriguez. Both Dimas
and Respondent played the system. Neither one came into this
proceeding with clean hands. Dimas committed crimes to get
and keep her job with Respondent. Respondent accommodated
Dimas notwithstanding that any reasonable person would have
asked what was going on when a person changes their name,
social security number, and their birth date, making them more
than 2 years younger than previously represented. If the situation at hand were approached in terms of the equities involved,
one might ask why Respondent did not treat Dimas as a senior
employee on October 30. In my opinion, Respondent knew
exactly what was going on with respect to her employment
status. But Dimas herself created the situation when she gave
Respondent the fraudulent documentation. The fiction of Dimas
being a probationary employ was put in place in September
2006, long before the October 27 work stoppage. And it was
put into place effectively at the behest of Dimas as a means of
her keeping her job. So from a labor law standpoint, the fact
that Dimas on October 30 was a probationary employee could
not have been unlawfully motivated. Respondent took advantage of the situation. But Dimas put in play the means by which
Respondent was able to take advantage of the situation, and this
was done long before the work stoppage. Under Wright Line,
supra, Dimas engaged in protected concerted activity. Even if
one takes the position that the work stoppage lost the protection
of the Act because the employees refused to leave the Company’s premises resulting in the police being summoned, there
is still the newspaper article in which Dimas (a/k/a Zamora)
aired a grievance of Respondent’s employees. It has not been
shown that anything occurred with respect to the newspaper
interview which would cause Dimas to lose the protection of
the Act. The interview occurred away from Respondent’s property and while its focal point might have been the reasons for
the work stoppage, the interview can and should be treated
separately from the walkout. Therefore, Dimas engaged in protected activity and the Respondent knew about it before she
was terminated. But has counsel for the General Counsel shown
animus on the part of Respondent? Has counsel for the General
Counsel shown that the termination was unlawfully motivated?
Counsel for the General Counsel cites four factors, namely (a)
the timing of the discharge just 1 workday after the work stoppage; (b) the pretextual reasons given by Respondent because
Respondent treated Dimas as a probationary employee; (c) the
assertion that Dimas was treated disparately; and (d) Dimas did

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

not ask for a leave of absence and this was King’s reason for
terminating Dimas. Dimas herself chose the timing in that she
was the one who presented Respondent on October 30 with a
situation it had to resolve. No inference of animus or unlawful
motivation can, therefore, be drawn from the timing alone.
With respect to counsel for the General Counsel’s contention
that the reason given by Respondent for Dimas’s termination is
pretextual because she should not have been treated as a probationary employee on October 30, one has to accept the fact that
Dimas had been treated as a probationary employee since September 2006 or, in other words, for some time before October
30. That was the status occasioned by Dimas’s own use of
fraudulent documentation when she changed her name, social
security number, resident alien card, and birth date. She participated in this fiction long before the work stoppage. When this
fiction began it had nothing to do with animus or unlawful motivation on the part of Respondent toward Dimas’s protected
activity. Consequently, no weight can be given to the contention that treating Dimas as a probationary employee on October
30 was pretextual. As Respondent argues on brief (1) while
Respondent sometimes accommodated alleged workers’ compensation injuries that later turned out to be nonwork related,
Respondent did so only while the cause of the condition was
being investigated and only when the safety department was
supervising and directing the employee’s medical care; and (2)
there is no evidence that Respondent ever accommodated an
employee based on a note that the employee obtained from her
own personal physician. It has not been shown by the record
herein that these arguments of the Respondent are false. Finally, counsel for the General Counsel finds fault in the fact
that albeit Dimas did not verbally ask for a leave of absence on
October 30, King approached her request in that manner. As
noted above, Dimas’ doctor’s note (Actually the note was from
a physician’s assistant at Table Rock Family Medicine clinic.)
reads, “Light work or no work . . . [see left] arm for one week.”
For King to interpret the note as asking that Dimas be given a
week off from work does not appear to be unreasonable. The
record considered as a whole does not warrant any inference of
animus or unlawful motivation on the part of Respondent. The
Respondent did not violate the Act in terminating Dimas (a/k/a
Zamora).
With respect to Rodriguez, the General Counsel on brief
contends that but for Rodriguez’ participation in the work stoppage Respondent would not have discharged Rodriguez; that
when Rodriguez participated in the work stoppage and spoke to
newspaper reporters on behalf of the participating employees
who were protesting Respondent’s change in the glove policy,
she was engaged in concerted activity that is protected by the
Act; that King admits that she saw the newspaper article in
which Rodriguez was quoted as the spokesperson of the employees who engaged in the work stoppage; that the first requirements of Wright Line, supra, are met, namely that the employee engaged in activity protected by the Act and the Respondent had knowledge of that participation; that Respondent’s unlawful motive in discharging Rodriguez because of
her protected activities is established by the suspicious timing
of the discharge, the one-sided investigation of the events leading to the discharge, and the disparity between Respondent’s

treatment of Rodriguez and of other employees involved in
similar incidents; that Raymundo testified that he could give a
warning for throwing product but he was not involved in the
decision to discharge Rodriguez; that the disparity in the treatment of Johnson and Rodriguez is a result of Rodriguez’ involvement in the work stoppage and her designation as a
spokesperson for the other employees; that while King testified
that precedence is the most important factor considered by Respondent, prior to Rodriguez’ discharge she did not conduct an
independent review to look at prior personnel decisions regarding throwing product nor did she personally examine the personnel files of other employees terminated for throwing product; that she relied on the representation of top management
that Respondent had a precedence of discharging employees
who throw product; that King asserts that Campos stated that if
throwing product meant termination then Rodriguez should be
discharged but he did not provide King with any documents to
show King that other employees had been terminated for similar conduct; that Respondent did not present one instance of
discharge of an employee who returned poorly cut chicken to
an employee on the line either by tossing it on the table in front
of the employee or by any other method; that the examples
cited by Respondent involve situations where the employee
who was discharged was engaged in horseplay and/or the sponsoring witness was unable to testify about the circumstances
surrounding the discharge; that Rodriguez was not engaged in
horseplay; that counsel for the General Counsel presented evidence that Respondent failed to discharge or even suspend employees whom it accused of throwing items in the plant, namely
(a) Gerra, who is presently employed at Respondent, hitting
another employee in the face with a chicken neck with the head
still attached, and (b) Buluz, who is presently employed at Respondent, receiving a verbal warning for throwing ice and hitting another employee with it; and that the timing of the discharge of Rodriguez, the sham investigation into the chicken
throwing incident, and the disparity of Respondent’s treatment
of Rodriguez establish that Respondent discharged Rodriguez
because of her protected concerted activity or participating in a
work stoppage and of speaking to the press on behalf of employees.
Respondent’s arguments regarding Rodriguez are set forth
above.
As pointed out by counsel for the General Counsel on brief,
that the first requirements of Wright Line, supra, are met,
namely that Rodriguez engaged in activity protected by the Act
and the Respondent had knowledge of that participation. As
noted above, counsel for the General Counsel goes on to contend that Respondent’s unlawful motive in discharging Rodriguez because of her protected activities is established by (1) the
suspicious timing of the discharge; (2) the one-sided investigation of the events leading to the discharge; and (3) the disparity
between Respondent’s treatment of Rodriguez and of other
employees involved in similar incidents. Again, the employee
Rodriguez dictated the timing in that she admittedly got into a
confrontation with Johnson on October 31. Rodriguez herself
presented the Respondent with a situation that it had to resolve.
The timing is not suspicious, and it should not reasonably lead
to the conclusion that animus or unlawful motivation should be

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CASE FARMS OF NORTH CAROLINA

inferred based on this. The investigation of the incident was not
one-sided. King spoke with and had written statements from
Johnson, Rodriguez, Raymundo, and Ronda. If Ronda’s testimony had not been equivocal about whether he advised King
that he saw Johnson also throw product, this conclusion might
be different. But in view of his testimony that his written statement was accurate and complete, and the written statement
does not mention Johnson throwing chicken, I do not believe
that it can be concluded that Respondent’s investigation of the
incident was one-sided. But as pointed out by the General
Counsel on brief, while King testified that precedence is the
most important factor considered by Respondent, prior to Rodriguez’ discharge she did not conduct an independent review to
look at prior personnel decisions regarding throwing product
nor did she personally examine the personnel files of other
employees terminated for throwing product. Instead, King relied on the representation of top management that Respondent
had a precedence of discharging employees who throw product.
King asserts that Campos stated that if throwing product meant
termination, then Rodriguez should be discharged but he did
not provide King with any documents to show King that other
employees had been terminated for similar conduct. As the
General Counsel points out on brief, Respondent did not present one instance of discharge of an employee who returned
poorly cut chicken to an employee on the line either by tossing
it on the table in front of the employee or by any other method.
The examples cited by Respondent involved situations where
the employee who was discharged was engaged in horseplay
and/or Respondent’s sponsoring witness was unable to testify
about the circumstances surrounding the discharge. I agree with
the General Counsel that Rodriguez was not engaged in horseplay. Additionally, counsel for the General Counsel presented
evidence that Respondent failed to discharge or even suspend
employees whom it accused of throwing items in the plant,
namely Gerra and Buluz. And finally, Raymundo testified that
he has given written warnings to employees for throwing items.
Since counsel for the General Counsel has demonstrated that
there was no real investigation of the precedent involving
throwing product and there is a blatant disparity between Respondent’s treatment of Rodriguez and the treatment of other of
its employees involved in throwing product or other items, she
has shown that an inference should be drawn that animus regarding protected activity and unlawful motivation on the part
of Respondent caused Rodriguez’ termination. I believe that
this finding is warranted notwithstanding the fact that there is
no other finding of an independent violation of the Act.
Respondent argues that even if counsel for the General
Counsel meets her burden under Wright Line and has made a
prima facie showing sufficient to support an inference that the
protected conduct was a motivating factor in the termination of
Rodriguez, the Respondent has shown that it had a legitimate
business reason for Rodriguez’ termination. It is pointed out by

the Respondent that if an employer establishes legitimate
grounds for adverse action and there is no evidence of similarly
situated employees being treated more favorably, the employer
has carried its Wright Line burden. Respondent argues that
Rodriguez was terminated consistently with policy and practice. I do not agree with Respondent’s argument. Counsel for
the General Counsel demonstrated that this is not the case in
that she showed similarly situated employees being treated
more favorably. Counsel for the General Counsel has shown
blatant disparate treatment.
Can one reach the conclusion that an adverse inference
should be drawn with respect to Rodriguez and not with respect
to Dimas even though both employees were engaged in the
same concerted activity? I believe that such an approach is
appropriate. The situations of Dimas and Rodriguez can be
viewed differently based in whether counsel for the General
Counsel met her burden of proof under Wright Line regarding
them individually. Respondent’s treatment of Rodriguez vis-avis other of Respondent’s employees warranted an inference of
animus and unlawful motivation. In my opinion, counsel for the
General Counsel did not make that showing regarding Dimas.
And I do not believe that the fact that counsel for the General
Counsel succeeded in Rodriguez’ situation carries over to Dimas.
CONCLUSIONS OF LAW
By terminating Rodriguez on October 31 (actually on Nov.
3) because she engaged in concerted activities for the purpose
of collective bargaining or other mutual aid or protection and in
order to discourage employees from engaging in such concerted
activities for the purpose of collective bargaining or other mutual aid or protection, Case Farms of North Carolina, Inc. has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectuate the policies of the Act.
The Respondent having discriminatorily discharged an employee, it must offer her reinstatement and make her whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W.

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DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).16
16

On brief, counsel for the General Counsel requests that the interest
be compounded. She points out that his is not currently the Board practice. Unless and until the Board changes its practice, the current Board
practice will be applied. Counsel for the General Counsel also requests
that (a) the notice be posted in Spanish and English, and (b) Respondent be required to hold group meetings with employees in which an

[Recommended Order omitted from publication.]

official of the Board can read the notice to employees in Spanish and
English. The request to require that the notice be posted in Spanish and
English is reasonable under the circumstances of this case, and such
request will be granted. No need has been shown herein for the granting
of the request to hold group meetings with employees in which an
official of the Board can read the notice to employees in Spanish and
English, and such request is denied.