Mara-Louise Anzalone, Administrative Law Judge: 'Respondent’s claimed hypervigilance regarding workplace harassment was merely a pretextual, post-hoc attempt to justify its reaction to Hurchalla’s persistent habit of forcing Respondent to adhere to its obligations as an employer…I find that, based on the preponderance of the evidence, Respondent banned Hurchalla not out of a concern for workplace safety but rather based on his unyielding union advocacy, thereby violating the Act.’

RE: UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SUNSET CULTURAL CENTER and ANDREW HURCHALLA An Individual
Case 32–CA–242555

DECISION

SELECTED RELEVANT EXCERPTS FROM DECISION

(particularly involving Respondent's Sue McCloud (McCloud) (a member of SCC’s board of directors) and SCC Executive Director Christine Sandin (Sandin))

 On April 11, 2018, Fitzsimmons emailed Sandin, Jayco and Weaver, as well as and Sue McCloud (McCloud) (a member of SCC’s board of directors), accusing SCC of discriminating against Hurchalla based on his union activities. Within the next 3–4 days, Respondent’s three-person (union) negotiating committee decided that, going forward, SCC would take a “zero tolerance” policy regarding Hurchalla. The negotiating committee at the time consisted of Board Members McCloud, Bob Kavner (Kavner), Sally Reed (Reed). Each of them was familiar with Hurchalla, as they had interacted with him regularly during bargaining. As of the hearing in this matter, McCloud and Reed had rotated off their positions as Board members, although they remained SCC donors; Kavner was still a current board member. (Tr. 57, 374–375, 391–393; GC Exh. 12.) None of the three testified.

On April 16, 2018, McCloud responded to Fitzsimmons’ email on behalf of the committee, stating that Hurchalla would continue on no-dispatch status, and adding the following explanation:

[t]here were significant issues with [Hurchalla] that arose prior to the signing of our latest agreement, including abusive/harassing conduct and bullying of [SCC] employees as well as client complaints. As an example, I am attaching a letter sent to him from Christine Sandin, Executive Director, in April 2017.15  All of this resulted in him being placed on a “do not dispatch” list. While we have a new subcontracting agreement in place with Local 611, SCC is mandated under law to maintain a safe and healthy workplace, and a workplace free from harassment and abusive conduct, as well as remain a favored venue for our clients. Hence our  position remains the same; namely, that Mr. Hurchalla continue to not be dispatched to our venue.

15 No attachment to this email was introduced into the record, but McCloud was presumably referring to Sandin’s April 11, 2017 “Memorandum for Record” addressed to Hurchalla regarding his alleged insubordination on April 4, 2017. See Jt. Exh. 3 at 2.)

 

By October, it appears that a difference of opinions among SCC’s leadership had developed as to whether banning Hurchalla was still necessary in light of Jayko’s departure. On October 8, Weaver emailed SCC’s deputy director/event director, Mary Carrieri (Carrieri), copying Sandin:

 Moving forward, if [Hurchalla] is dispatched as a stagehand from the Local 611 hall, that’s one thing. We would allow that to be fair and consistent with how the Bach crew is provided. However, if McCune is trying to dispatch him, a decision has to be made on that. I know [Brunclik] wants to show our willingness to move forward with a fresh start, and I think that’s a good idea, but it’s a tough call.

(Jt. Exh. 16.) Sandin disagreed, responding,

He has to stay on the Do Not Dispatch. It’s an employee liability issue.

He threatened and bullied [Jayko], and we have to assume he will do it again to whomever he has a beef with. [Brunclik] feels that they are all “good” at the moment, but this is a serious accusation that was made against [Hurchalla], we had evidence of it, and now we have a duty to protect the rest of our employees from it.

Liability, liability, liability.

Id. At hearing, when asked to explain her response, Sandin offered a vague historical account of employee claims between 2012 and 2017 about workplace harassment—not by Hurchalla but other individuals—that she claimed had made individual Board members sensitive about their potential personal liability. Sandin did claim that Weaver and Jayko had approached her “at different times” to talk about their concerns with Hurchalla; she did not, however, specify what  those concerns had been, nor did she identify what “serious accusation” had been made against Hurchalla or what “evidence” was presented to support it. (Tr. 382–383.)

 

As noted, Brunclik replaced Jayco as SCC’s production manager in May 2018 and had expressed his desire to “mend” the relationship between SCC and Local 611. On May 29, 2019, Brunclik emailed Weaver and McCloud (copying Sandin), demanding that SCC cause its subcontractors, McCune and Musson, to issue a letter releasing Hurchalla from “do-not- dispatch” status. He stated, in relevant part,

This has gone on long enough, it’s punitive and retaliatory. We are shooting ourself [sic] in the food by denying the best [head audio/head lighting] on the peninsula to serve us.

All this is in the past and there is no documentation I have been shown to prove the allegations against him.

(Jt. Exh. 17; see Tr. 122.) Sandin responded minutes later, stating that no such letter would issue. Id.

 

As noted, Sandin (who, as Respondent’s representative, observed the entire hearing) offered a somewhat meandering historical account of various employees raising concerns about workplace harassment, but the complaints in question were clearly not made about Hurchalla. (Tr. 382–383.) Nor did any witness identify what specific conduct by Hurchalla—other than him disagreeing with Jayko—was considered inappropriate in the workplace. According to McCloud’s April 16, 2018 explanation, Hurchalla’s “do-not-dispatch” status resulted from “significant issues” regarding harassment and bullying on Hurchalla’s part had arisen prior to September 2017. McCloud did not testify, leaving the record devoid of an explanation as to what these “significant issues” were or why, considering Respondent’s claimed hypersensitivity to liability for workplace harassment, Respondent failed for months to investigate or otherwise address his supposed malfeasance.

What emerges with relative clarity from the record is that Respondent’s top officials considered Hurchalla’s aggressive policing of the parties’ expired contract and criticism of Jayko’s job performance to amount to “harassment” and “bullying.” In this regard, it is worth noting that, when justifying Respondent’s 2018 do-not-dispatch order based on “abusive/harassing conduct and bullying of [SCC] employees,” McCloud pointed to Hurchalla’s alleged insubordination in April 2017, when he confronted Jayko about his lack of management prowess. (See GC Exh. 12; Jt. Exh. 3 at 2.) Respondent offered no evidence as to how Hurchalla’s conduct towards Jayko posed a liability to Respondent vis-à-vis its stage crew work force. According to Hurchalla’s unrebutted testimony, he was never made aware—during the entire time he was dispatched to SCC—that a coworker had complained that he had been hostile or aggressive towards them. Other than his interactions with Jayko, the record contains only two references to instances of harassment involving Hurchalla.

Respondent’s main proffered rationale for placing Hurchalla on “do not dispatch” status is  that he engaged in “abusive” and “harassing” conduct, including “bullying” of SCC employees, which in turn exposed Respondent to legal liability based on federal anti-discrimination law and/or its duty under California state law to provide a “safe and healthful” place of employment to its employees.

Indeed, the record is devoid of credible evidence that Respondent in fact received, let alone investigated, a single employee complaint about Hurchalla acting in a threatening or otherwise inappropriate manner. See Rood Trucking Co., Inc., 342 NLRB 895 (2004) (failure to investigate alleged misconduct constitutes strong evidence of pretext); Golden State Foods, 340 NLRB 382 (2003) (same). As the Board recently noted, an employer’s defense based on a claimed “zero tolerance” policy against workplace harassment will not carry the day when it is inconsistent with its failure to respond to harassment allegations in a meaningful way, other than singling out the discriminatee for punishment. Wendt Corp., supra at 3.

Ultimately, Respondent’s witnesses failed to identify any bullying or harassing conduct to which Hurchalla had supposedly subjected his coworkers….Nor is there any credible evidence management in fact believed that Hurchalla’s interactions with Jayko posed a potential threat to crew members, such that banning him became necessary to avoid legal liability.25 Indeed, Respondent did not even follow through with its declared “zero tolerance” policy against Hurchalla, but rather selectively allowed him to work (e.g., the two month-long Carmel Bach Festival events) when its clients demanded him. Finally, Respondent’s own production manager Brunclik considered the allegations against Hurchalla baseless, undocumented and retaliatory.

25 Apparently, Respondent felt no compulsion to issue similar preemptive discipline to another potential future harasser, crew member Butler, who was known to have yelled at Jayko and even insulted him.

 In contrast to Respondent’s shifting, implausible and exaggerated claims regarding Hurchalla stands a single compelling storyline: he was an outspoken steward and union official whose duties included keeping detailed records of the hours worked by union-dispatched crew members, and who had officially accused SCC of incorrectly designating itself exempt from state overtime obligations with respect to such employees.

Because no member of Respondent’s three-person negotiating committee testified and no management official took credit for the later decision to have him removed from the theater, the record contains no explanation as to what, if anything, the decision to ban Hurchalla— characterized by Respondent’s own production manager as “punitive and retaliatory”—actually had to do with a legitimate concern over workplace harassment. Thus, no testimony spoke directly to Respondent’s motive and refuted the inference that Respondent’s claimed hypervigilance regarding workplace harassment was merely a pretextual, post-hoc attempt to justify its reaction to Hurchalla’s persistent habit of forcing Respondent to adhere to its obligations as an employer.

For the reasons set forth herein, I find that, based on the preponderance of the evidence, Respondent banned Hurchalla not out of a concern for workplace safety but rather based on his unyielding union advocacy, thereby violating the Act.

Dated: Washington, D.C. March 2, 2021

Mara-Louise Anzalone
Administrative Law Judge