Ramon Ortiz had been employed for six years as a waiter in the employers restaurant at the time of.

Ramon Ortiz had been employed for six years as a waiter in the employers restaurant at the time of his June 19 discharge. On May 11, Ortiz was scheduled to work from noon until 10 P.M. After clocking in, Ortiz requested and received permission from restaurant manager Hildago to leave work early if Ortiz would return in time to work the 4:30 P.M. dinner period. Ortiz left work but later claimed that he forgot to clock out. When Ortizs brother Juan reported for work at 6 P.M. he clocked himself in and clocked his brother Ramon out at 6:04 P.M. A week later, manager Susan Post noticed
Ramon Ortiz had been employed for six years as a waiter in the employers restaurant at the time of his June 19 discharge. On May 11, Ortiz was scheduled to work from noon until 10 P.M. After clocking in, Ortiz requested and received permission from restaurant manager Hildago to leave work early if Ortiz would return in time to work the 4:30 P.M. dinner period. Ortiz left work but later claimed that he forgot to clock out. When Ortizs brother Juan reported for work at 6 P.M. he clocked himself in and clocked his brother Ramon out at 6:04 P.M. A week later, manager Susan Post noticed while reviewing time card records that both Ortiz brothers had clocked in and out at virtually the same time (6 P.M.) on May 11. Manager Post interviewed both Ortiz brothers to solicit their explanation of the time card entries. Ramon Ortiz claimed that he had worked on May 11 but had left work early with the permission of his restaurant manager. Juan Ortiz stated that he was simply doing a favor for his brother, who had asked Juan to clock him (Ramon) out when Juan arrived for work. Juan stated he assumed his brother (Ramon) was calling him from the restaurant and Juan was unaware that his brother had actually left work much earlier in the day (shortly after noon). Manager Post informed Ramon Ortiz that his time record for which he was responsible falsely claimed pay for hours worked on May 11 between noon and 6:00 p.m. which was a violation of company policy regarding use of time cards to report paid hours worked. The following day manager Post placed an undated Employee Communication Record form in Ramon Ortizs personnel file. Such forms are used at the restaurant to record written warnings to employees concerning work rule violations. The Hotel and Restaurant Employees Union had begun an organizing campaign targeting the hotels restaurant employees sometime in the spring of 2003. Ramon Ortiz was an active union supporter and member of the unions in-plant organizing committee. The Union cautioned supporters like Ortiz that they should confine their union authorization card solicitation activities to times when away from the restaurant so that management would be less likely to be able to identify union supporters and possibly take adverse action against them for their union activity. On June 15, Ramon Ortiz approached the restaurants front desk manager, Louis Gaines. The conversation began with manager Gaines informing Ortiz that this was Gaines last day at the restaurant as he had already turned in his resignation to management effective the following day. After further conversation, Ortiz told manager Gaines about another employee who claimed she had been threatened with discharge the previous day by her manager for something she did not do. Ortiz asked manager Gaines if he would write a letter to the corporation that owned the restaurant, setting up a meeting between the corporations human resource (HR) manager and several restaurant employees without any restaurant managers being present. The purpose of the meeting was to give restaurant employees an opportunity to present their concerns to the corporations HR manager about various working conditions at the restaurant, including discipline and discharge practices, in a confidential manner without having restaurant managers know which employees had made what statements. Ortiz and other restaurant employees were not sure whether the corporation really understood how the restaurant was currently being managed. Ortiz had previously met with several employees who had authorized him to seek manager Gainess help to arrange the meeting because Gaines was more fluent in English than the restaurant employees and could help draft a letter to the corporations HR manager which clearly explained the employees request. Initially manager Gaines said he would help draft the letter but later in the work shift informed Ortiz that it would be better if employees contacted the corporation directly without a member of restaurant management (Gaines) being involved. Four days later on June 19, Ortiz was called into manager Posts office and informed that he was being terminated immediately because of the incident on May 11 involving the falsified time card. Ortiz asked manager Post for one last chance because he had a previous good work and disciplinary record at the restaurant, but manager Post informed him it was out of her hands and the discharge decision was final. On July 11, the Union filed a valid representation election petition with the National Labor Relations Board to conduct a secret ballot election to decide if restaurant employees wanted union representation. On July 16, the Union filed several unfair labor practice charges against the restaurant owner, including a charge that the discharge of Ramon Ortiz was illegal. A representation election was held in September in which the majority of restaurant employees did vote to elect the Union as their exclusive bargaining representative. Positions of the Parties The NLRBs General Counsel representing the charging party (the Union on behalf of Ramon Ortiz) argued that Ramon Ortiz was discharged for engaging in concerted and protected activity under the LMRA. Specifically, the meeting between manager Gaines and Ortiz on June 15 represented concerted activity for the protected purpose of expressing employee grievances to management. Ortiz was acting on behalf of several other employees who had authorized him to contact manager Gaines to arrange a meeting with higher level company representatives who could receive and respond to job related employee concerns. The General Counsel argued that the real reason or motive behind Ortizs discharge was that restaurant management did not like the idea that Ortiz was stirring up trouble by going over their heads and contacting corporate management directly about alleged problems at the restaurant. The previous incident on May 11 involving the time clock could not have been the real reason for discharge (as the employer claims) because management had already disciplined Ortiz for that incident weeks before by placing a written warning in Ortizs file. One likely effect of permitting the company to discharge a recognized employee leader in the union organizing campaign on the basis of a pretext would be to intimidate other restaurant employees from risking the exercise of their legitimate right to form or join a labor organization under Sec. 7 of the LMRA, a result not intended by Congress. The respondent (employer) argued that management had no knowledge of any union organizing campaign until being informed by the NLRB of the unions representation election petition filed on July 11. The employer also denied any knowledge of concerted and protected activities in which Ortiz might have engaged prior to his discharge on June 19. The employer stated former manager Gaines had never disclosed to other managers at the restaurant that he had met with Ortiz on June 15. The employer argued that the investigation into the May 11 time clock incident had been a continuing affair and was concluded on June 19 with the decision to terminate Ortizs employment. The employer did not call former manager Gaines or any other restaurant managers as a witness to testify at the unfair labor practice hearing and provided no written evidence to support the claim that the investigation of the May 11 incident had continued beyond the date the warning notice was placed in Ortizs file. Questions 1. Evaluate the employers decision not to call any management witnesses or offer any written evidence to support the employers stated position in the case. What are some examples of testimony or written documentation that an employer in a similar situation could use to prove the employers theory of the case? 2. Was Ramon Ortiz unlawfully discharged in violation of Sec. 8 (a) (1) and (3) of the LMRA, and if so, what should be the appropriate remedy? Explain your reasoning.

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