Barker v. Latino Express, Inc., 11 C 2383

• Decision Date: 18 April 2012
• Docket Number: No. 11 C 2383,11 C 2383
• Parties: JOSEPH A. BARKER, Regional Director of Region 13 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. LATINO EXPRESS, INC., Respondent.
• Court: U.S. District Court — Northern District of Illinois

JOSEPH A. BARKER, Regional Director of Region 13 of the National Labor Relations Board for and on behalf of the National Labor Relations Board, Petitioner, v. LATINO EXPRESS, INC., Respondent.

No. 11 C 2383

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

DATE: April 18, 2012

í

MEMORANDUM OPINION

Petitioner Joseph A. Barker, Regional Director for Region 13 of the National Labor Relations Board (the "Director"), seeks injunctive relief pursuant to § 10(j) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 160(j), against respondent Latino Express, Inc., pending the resolution of charges currently before the National Labor Relations Board (the "Board"). For the reasons explained below, we grant the Director's petition.

BACKGROUND

In January 2011, Carol Garcia and Pedro Salgado filed separate charges with the Board alleging that Latino Express had violated §§ 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3). In March 2011, Teamsters Local Union No. 777 (the "Union") filed charges with the Board predicated on some of the same allegedconduct. After investigating the charges, the Board's Acting General Counsel consolidated the cases and issued a consolidated complaint and notice of hearing. In April 2011, Administrative Law Judge ("ALJ") Michael A. Rosas conducted a three-day evidentiary hearing on the charges. The ALJ issued his decision on July 12, 2011, finding that Latino Express had violated the Act. The following facts are drawn from the transcripts of the administrative hearing, additional exhibits submitted to the court by the parties, and the ALJ's summary of the facts.

Latino Express operates a bus transportation business in Chicago, Illinois. The company busses students pursuant to a contract with the Chicago Public Schools ("CPS"), and provides charter bus transportation to members of the general public. Latino Express admits that it is an "employer" under the Act. (See Decision, dated July 12, 2011 (hereinafter, "ALJ Decision"), attached as Ex. 1 to the Director's Mot. to Supp. the Record with the Decision of the ALJ, at 2.) The company is owned in equal one-third shares by Michael A. Rosas, Sr. (its president), Henry Gardunio (its vice president), and Joseph Gardunio, Sr.¹ Henry Gardunio is responsible for the company's day-to-day operations. In or around September 2010, Latino Express employees met informally amongst themselves to discuss their grievances. (SeeTrans. of Hearing at 354-55; see also id. at 87, 119.) Then, in November 2010, a Latino Express driver named Frank Hernandez contacted Elizabeth Gonzalez, an organizer affiliated with the Union. Using union authorization cards that Gonzalez provided, Hernandez obtained signatures from other drivers including Carol Garcia and Pedro Salgado. Salgado, in turn, joined Hernandez in soliciting further signatures.

1. Meeting with Union Representatives on December 9, 2010

On December 9, 2010, Gonzales and two other union representatives met with a group of employees at a restaurant approximately one block from Latino Express's premises. Those employees included Hernandez, Salgado, Carol Garcia, and Pedro Garcia. At the meeting, Gonzales received 27 signed authorization cards and gave the employees more cards to distribute. When the meeting ended around 6:00 p.m., the Union representatives (wearing jackets and hats emblazoned with the Teamsters insignia) and the employees exited the restaurant. Hernandez, Salgado, Carol Garcia, and Pedro Garcia all testified that as they were leaving they saw Sara Martinez, the company's dispatcher/manager, stopped at a red light in a company vehicle. Martinez was sitting approximately 20 feet from where they were standing outside the restaurant.² Thedrivers each testified that they made eye contact with Martinez. (Trans. of Hearing at 92, 265, 360, and 447.) Martinez did not testify at the hearing, but states in an affidavit filed with this court that she did not make eye contact with the employees and did not see anyone wearing Union apparel. (See Martinez Aff. ¶ 3.) But she saw the individuals leaving the restaurant clearly enough to identify them as Latino Express employees. (Id. at ¶ 1 ("I saw some employees on a restaurant's premises. The restaurant is next door to the Company.").) It is also undisputed that she told Gardunio what she had seen, although she claims that she did not identify the employees by name. (Id. at ¶ 3 ("I did not identify for Henry Gardunio the persons by name."); see also Trans. of Hearing at 612, 692-94.) In his decision, the ALJ stated that "[w]ithout Sara Martinez' testimony to shed a different light, I found it suspicious that she would simply tell Gardunio that she observed a group of employees leaving a restaurant and nothing else." (See ALJ Decision at 5 n. 19.) Even with the benefit of Martinez's testimony, her and Gardunio's accounts are dubious. Neither witness has supplied any context that would make such a stilted conversation seem plausible.

2. December 10, 2010

a. Meetings with Management

Pedro Garcia testified that the day after the meeting at the restaurant with Union representatives he was called in to speakwith Victor Gabino, the company's maintenance director. Gabino told him that he had learned about the Union's organizing efforts and that many of the drivers were upset by that activity. Garcia indicated, albeit somewhat vaguely, that he supported the union. (Trans. of Hearing at 97 ("I told him yes, the drivers were upset, and I had to support them because I was also a driver. And anything that would benefit them would benefit me, and anything that would affect them would affect me.").) Gabino told him "that's fine, but he said just think about it very well." (Id. at 98.) Gabino, like Martinez, did not testify at the hearing but has submitted an affidavit to this court. In it, he admits to speaking with Pedro Garcia around December 10, 2010, but denies making any statements about the Union. (Gabino Aff. ¶¶ 1-3.) Instead, he states that they spoke about some unidentified "Latino [Express] business." (Id. at ¶ 3.) Later that same day, Pedro Garcia and at least two other co-workers were summoned to a meeting with several managers and supervisors, including Michael Rosas, Sr., Michael Rosas, Jr., and Martinez. Pedro Garcia testified that Rosas, Jr. told the employees that the company was aware of the employees' organizing campaign. In addition, Garcia testified that he was challenged by Martinez and another driver when he suggested that other companies have unions. (See Trans. of Hearing at 102.) The meeting participants discussed employee benefits, either in the form of increased wages for standby drivers (which Pedro Garciafavored) or two weeks paid vacation (proposed by Rosas, Jr.). Rosas, Jr. indicated that he would consider the matter and convene a meeting after the holiday break.

b. Gardunio Fires Carol Garcia

On the same day these meetings took place, and the day after Carol Garcia and other employees met with Union representatives, Gardunio fired Garcia purportedly because she had threatened him. The circumstances of the alleged threat are as follows. In June 2010, Garcia caused an accident while driving a Latino Express vehicle that resulted in approximately $4,000 in damages to the other driver's car. Sometime in September 2010, Melissa Morales, a clerical assistant, gave Garcia a bill for $800, or approximately 25% of the total cost of the accident to the company. This was consistent with the company's policy, which was apparently adopted to avoid making insurance claims. Garcia challenged Gardunio about the bill, telling him that the company's policy was unfair and that it was adopted because the company did not carry insurance during the summer months. She stated that she knew this from her own experience driving charters during the summer, and because "drivers talk." (Trans. of Hearing at 235.) Gardunio instructed her not to speak about these matters with other drivers. (Id. ("[H]e knew that I knew a lot stuff with the company was not right, and I should not be talking about the drivers about the company, and that I should not be talking to the drivers with things that happenshere.").) At some point during this conversation, which lasted approximately an hour, she told Guardino that "the drivers were talking, that they wanted to put a union in there." (Id. at 235-36.) Guardino responded, "that will never happen, the CPS do not allow none of that companies to have unions and that, that that was never going to happen." (Id. at 236.)³ Guardino eventually offered to reduce Garcia's contribution by half, to $400, and she reluctantly accepted. He told her, however, not to disclose the agreement to the other drivers and to stop "riling" them up. (Id. at 241-42.) While largely adopting Garcia's version of this conversation, the ALJ credited Gardunio's testimony that Garcia warned him that he "would pay for this" and that "[w]hen somebody plays with my money, I get them back." (ALJ Decision at 7.)

Returning to the events of December 10, 2010, Gardunio summoned Garcia to a meeting in the dispatcher's office and gave her a violation notice terminating her employment. The notice stated that the company was terminating her for threatening Gardunio during their September meeting. (See GC Ex. 6.) Gardunio testified that he acted when he did, approximately three monthsafter the threat, because of a conversation he had with a police officer at a community patrol meeting. According to Gardunio, he spoke with the officer about an incident in which Gardunio was physically attacked by someone two years after that same person verbally threatened him. The officer told him, "[y]ou can't let those things go by because eventually it's going to come to this. So you need to nip this in the bud." (Trans. of Hearing at 688.) Gardunio claims that this conversation motivated him to fire Garcia.

3. January 6, 2011

On January 6, 2011...