How Blue Diamond breaks labor law

Blue Diamond has broken the law by firing and disciplining union supporters; threatening workers with loss of pensions and other benefits; threatening that the plant could close or move, and coercively interrogating workers about their union activities and sympathies.

The National Labor Relations Board issued new complaints against Blue Diamond Oct. 23, 2006--eight months after it found the company guilty of more than 20 labor law violations. (A complaint is like an indictment in a criminal case.)

October 2006: NLRB issued new complaints against Blue Diamond

The Board issued a complaint against Blue Diamond Oct. 23 for illegally firing one union supporter and disciplining another. It expanded the complaint a month later to include yet another firing. These complaints covered:

• Leo Esparza, a 24-year employee with a clean record, who got fired after taking home a broken weed-whacker he found in the trash.



• Ludmila Stoliarova, with five years at the plant, who got fired after taking home two plain cardboard boxes that were on their way to the recycling bin.
• Cesario Aguirre, a mechanic with 28 years at the plant, who got written up for momentarily removing his company-provided tinted safety glasses to inspect a hole he had drilled. The write-up came from two supervisors he had testified against at an NLRB hearing less than a month before.

The Board wrapped up a four-day hearing on these complaints Jan. 19, 2007.

These complaints marked Blue Diamond as a repeat offender.

March 2006: NLRB found Blue Diamond guilty of more than 20 violations of the National Labor Relations Act.

NLRB Administrative Law Judge Jay R. Pollack said Blue Diamond broke the law by:

• "Threatening employees with loss of scheduled wage increases, loss of benefits and loss of pension benefits"

  Several supervisors flatly told workers they would no longer be able to participate in the company's pension plan if they joined the union. "They never mentioned that the Union could negotiate that the employees retain that existing pension benefit," Pollack wrote in his decision. "Rather, the supervisors threatened that the existing benefit would be lost. They threatened that the existing benefit would be replaced by a union plan which would not vest for five years."

• "Threatening plant closure and loss of employment"

  "Area manager Don King threatened that employees would lose their benefits if the Union came in. King said, "You would lose everything. It's all re-negotiable. King said that if the Union came in, employees would lose their wages and pension. Finally, King stated that if the union got in, the plant would close its doors," Pollack wrote. Several other supervisors and managers made similar threats.

• "Coercively interrogating employees about their union activities"

  Judge Pollack cites several incidents of supervisors aggressively questioning workers about their support for the union and union activities.

• "Discharging employees Ivo Camilo and Mike Flores and warning employee Alma Orozco"

  In these cases, Judge Pollack found the actions taken against the workers much harsher than usual for the circumstances.

  "Ivo Camilo was a 35-year employee with an excellent work history," Pollack wrote. The company accused him of willfully contaminating almonds with blood from a one-eighth inch cut on his hand and fired him April 18, 2005-three days after he took part in a union rally and put his name on a list of union supporters. Another worker who knew of the incident but did not report it, Janet Brady-Fox, did not receive even a warning. "The glaring disparate treatment between Brady-Fox and Camilo leads me to conclude that Respondent's motive was to build a case against Camilo and rid itself of a union adherent," the judge wrote.

  Mike Flores, another union supporter, got fired after an incident in which higher management claimed he was sleeping on the job-though his immediate supervisor admitted in the hearing that he did not believe Flores was asleep. "Flores would have received a written warning absent his union activities," Pollack found.

  Alma Orozco had worked for Blue Diamond for 30 years and had never been disciplined before an incident on May 2, 2005. "None of Respondent's supervisors were present for the alleged offense and they never spoke to the person in charge," Pollack noted.

  Altogether, Pollack cited violations committed by 13 managers and supervisors throughout the plant. The quantity and distribution of the unfair labor practices and the involvement of high management point to a systematic campaign to interfere with workers' right to organize. Plant Manager Janet Hills, for example, got involved in both Flores' discharge and Orozco's discipline. "Hills' intervention in this discipline is suspicious," Pollack wrote of Flores' case.

  The NLRB wanted a court injunction against Blue Diamond

  The San Francisco office of the NLRB (Region 20) filed a petition in U.S. District Court Feb. 21, 2006 seeking a 10(j) injunction against Blue Diamond. This injunction would enforce Judge Pollack's decision. For example, it would order Blue Diamond to reinstate Camilo and Flores right away, while it is appealing Judge Pollack's ruling.

  The Board reserves 10(j) injunctions for the worst of labor law violators. They are rare and hard to get. The regional offices of the Board must get permission from the General Counsel (the agency's top lawyer) and a majority of the five-member national Board in Washington, D.C. The Board has only approved 70 10(j) injunctions since June 2001. The current Republican-dominated Board in D.C. agreed Region 20 should seek an injunction against Blue Diamond. The hearing was set for May 5. When Blue Diamond decided not to appeal Judge Pollack's order, the injunction became unnecessary.

  After the decision

  Judge Pollack ordered Blue Diamond to immediately:

  • offer Camilo and Flores their jobs back, with back pay plus interest;
  • take all references to the illegal discharges and discipline out of their files and Orozco's; and
  • post a notice in the plant informing the workers of their rights under the National Labor Relations Act and the actions taken to remedy the discrimination against Camilo, Flores and Orozco, and promising not to violate the Act again.

  The NLRA does not provide for any monetary or other penalties for employers who violate its provisions.

  Blue Diamond had until April 14, 2006 to appeal. After initially telling the workers it would do so, the company backed off and let the deadline pass.

  Camilo and Flores went back to work April 24, 2006, but the company admitted no wrong-doing. It continued to harass and fire union supporters.

  What is the National Labor Relations Board?

  The National Labor Relations Board (NLRB) enforces the National Labor Relations Act, which sets the rules employers and unions must follow in organizing drives, contract negotiations and other situations. Section 7 of the Act protects the right to organize. It affirms workers' right to organize, bargain collectively and "engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8(a) of the Act spells out employer violations of those protected rights. These include making threats and promises, as well as interrogating, spying on and discriminating against union supporters.

  What is an unfair labor practice complaint?

  Unfair labor practice complaints issued by the National Labor Relations Board (NLRB) can be compared to indictments in criminal cases. If either union members or employers believe the labor laws have been broken, they can file charges with the Board. The Board then investigates. If it decides the charges have merit, it will issue complaints, which are heard by an administrative law judge.