Page:Cordúa Restaurants, Inc. v. NLRB (19-60630) (2021) Opinion.pdf/14

 Cordúa argues that surveillance is not unlawful absent “accompanying interference, coercion, or restraint of Ramirez’s protected rights.” Here, though, the surveillance did interfere with protected rights, as it was used by Cordúa to gain general information about Ramirez’s collective action-related conversations with Reichman.

Cordúa further displayed animus through Espinoza’s questioning of Ramirez. This questioning extended beyond the purported objective of determining whether Ramirez sought confidential information. As the Board found, Espinoza’s questioning was coercive, asking Ramirez to generally assert that he had never texted Reichman about non-scheduling issues. Espinoza pressured Ramirez to grant Cordúa access to his personal cellphone and consistently denied Ramirez’s repeated requests to call his attorney. The Board has previously found animus where an employer coercively questioned employees about their visit to an attorney’s office to discuss a possible wage-and-hour lawsuit. Delta Gas, Inc., 282 NLRB 1315, 1315 n.1, 1317, 1322–23 (1987).

Cordúa next asserts that because the Board had the opportunity to ask Reichman whether Cordúa harbored animus toward the FLSA collective action and chose not to, Cordúa is entitled to an inference that this evidence would weigh against the Board’s finding of animus. This argument is also meritless. Cordua cites Elite Ambulance, but that case specifies that the potential evidence must be relevant evidence within the party’s control to have bearing. See Elite Ambulance Inc. & Int’l Ass’n of Emts & Paramedics Local 5000, 31-CA-122353, 2015 WL 9459716 (N.L.R.B. Div. of Judges Dec. 23, 2015), adopted sub nom. Elite Ambulance, Inc. & Int’l Ass’n of Emts & Paramedics Local 5000, S 31-CA-122353, 31-C, 2016 WL 453585 (N.L.R.B. Feb. 4, 2016); see also Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1046 (5th Cir. 1990) (explaining that the adverse witness rule applies where “a party has it peculiarly within his power to produce witnesses whose