By Tim Ryan

Law360 (January 28, 2021, 8:29 PM EST) -- Witnesses testifying at a sometimes contentious hearing Thursday before a National Labor Relations Board judge gave conflicting testimony about staffing at a Connecticut McDonald's franchise accused of laying off and refusing to rehire workers who participated in pro-union activities. 

The hearing came as part of a trial in which the NLRB General Counsel's Office is seeking to prove Michell Enterprises LLC, which runs a McDonald's in Darien, Connecticut, violated the National Labor Relations Act by not recalling four workers who advocated for improved working conditions at the restaurant. Michell Enterprises has argued that the employees were not recalled because of lower sales due to the pandemic and because they had limited schedules.

Store manager Lila Aguirre, whose testimony spanned most of the day, said one of the employees who was laid off, Milagros Vasquez, told her that she could only work in the kitchen because a manager at her previous job told her she was rude and couldn't interact with customers.  

But later in the day Vasquez told NLRB attorney Meredith Garry that she did not say that to Aguirre and was never given the chance to work in the front of the store.

"I never had a conversation with her regarding a chance or opportunity to work the front counter," Vasquez said through a translator. "She always said in general terms that everybody had an option to work the front counter; otherwise, I would have taken the chance even without speaking English."

Service Employees International Union Local 32BJ accused Michell Enterprises of violating the NLRA in June, alleging the restaurant at a rest stop off I-95 discriminated against workers Mario Franco, Rosa Franco, Pilar Mestanza and Vasquez, who had signed onto calls to improve working conditions for employees.

In particular, the complaint said Mario Franco and Rosa Franco gave media interviews in May 2019 critical of the restaurant and later circulated a petition seeking to improve working conditions at the store. Mestanza and Vasquez also participated in a March 2020 protest of the company's decision to lay off workers.

Since those activities, none of the workers have been recalled to work, even as the restaurant has ramped up operations following reductions necessitated by the COVID-19 pandemic, the complaint said.

Kevin Greene, an attorney with Halloran & Sage LLP who represents Michell Enterprises, walked Aguirre through the staffing at the restaurant and how those needs changed in light of reduced operations and business during the pandemic. Aguirre testified that the restaurant particularly slashed its overnight operations, including closing at night entirely until October.

Even as the pandemic wore on and the restaurant started bringing back workers, Aguirre testified that they had limited staff on duty. In addition to needing fewer shift managers, Aguirre said that meant management emphasized bringing on workers who had flexible schedules and could work in multiple roles.

The hearing grew contentious when Aguirre faced cross-examination from board attorney Garry, who guided her in detail through shift schedules that showed when workers were scheduled and what tasks they were meant to perform, as well as documents related to the hiring process.

Administrative Law Judge Donna Dawson repeatedly urged Garry to speed up her questioning, including asking her multiple times to explain the purpose of what she was asking.

At one point, Garry insisted the testimony was important because she was attempting to show that the restaurant brought on employees with limited schedules, despite its argument that it didn't recall the workers because it didn't think they would be available for the shifts it needed to fill.

Greene interjected, saying Garry had mischaracterized Michell Enterprises' position. He also backed Judge Dawson's contention that Garry's questioning was focusing on issues that weren't in dispute.

"We're not disputing that we were seeking to hire some crew members because we were hopeful things would get better over the summer," Greene said.  

As the disagreements over the record continued, Garry stepped in.

"Are you questioning me, attorney Greene?" Garry asked.

Greene responded by saying, "You're arguing about the record, and you're saying the wrong things."

Later, Greene objected to SEIU attorney Jessica Ochs' questions for Aguirre, suggesting "there is some filibustering going on to get to 6 o'clock because there's not another witness ready."

Ochs registered her disapproval with Greene's objection.

"I take instructions from the judge, not you," Ochs said.

Thursday's session was the seventh day of testimony in the trial, and the proceedings are scheduled to wrap up on Friday. 

Rochelle Palache, vice president of SEIU 32BJ, told Law360 on Friday that the union believes the trial went favorably and is "incredibly proud" of the workers who testified.  

"It's very clear that this incident where they weren't recalled was a direct result of them being active in working on getting the union at the site," Palache told Law360

The NLRB declined to comment on the hearing.

Greene did not immediately return a request for comment on the proceedings.

Michell Enterprises LLC is represented by Kevin Greene of Halloran & Sage LLP.

The NLRB is represented in-house by Meredith Garry.

The SEIU is represented in-house by Jessica Ochs.

The case is Michell Enterprises LLC and Service Employees International Union Local 32BJ, case number 01-CA-261495 before the National Labor Relations Board.

--Editing by Vincent Sherry. 

Update: This story was updated with comments from Palache.

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