Alex R. Thomas & Co.

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 153 (N.L.R.B. 2001)

ALEX R. THOMAS & CO. 153
Alex R. Thomas & Co., Inc. and Rosa Mireles. Case
20–CA–28296
January 31, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On September 24, 1998, Administrative Law Judge
Joan Wieder issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs. The Respondent filed cross-exceptions
and a supporting brief. All parties filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Maroaret Dietz, Esq., for the Acting General Counsel.
Charlotte Addinaton. Esq. (Kauff, McClain & McGuire), of San
Francisco, California, for the Respondent.
Caleb A. Rush, Esq. (Redwood Legal Assistance, Southem Of-
fice), of Ukiah, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case was
tried on July 1, 2, and 9, 1998,1 at Ukiah and San Francisco,
California. Rosa Mireles, an individual, filed the charge on
February 5, 1998, against Alex R. Thomas & Company, Inc.
(Respondent or the Company). The complaint, as amended,
alleges Respondent violated Section 8(a)(1) of the Act by lay-
ing off employees Rosa Mireles and Hilda Mireles and refusing
to rehire them to work both the postharvest and 1998 harvest
seasons, because they engaged in protected concerted activity.
Respondent’s timely filed answer to the complaint, as
amended, admits certain allegations, denies others, and denies
any wrongdoing. Respondent asserts Rosa and Hilda Mireles
did not engage in any concerted protective activity, it did not
take any retaliatory action against any employee, and Rosa and
Hilda Mireles voluntarily quit.
All parties were given full opportunity to appear and intro-
duce evidence, to examine and cross-examine witnesses, to
argue orally, and to file briefs. Counsel for the Acting General
Counsel and Respondent filed timely briefs on or before August
14, 1998. The brief of the Charging Party was late filed, being
submitted on August 17, 1998. The Charging Party moved to
have the late brief accepted because he failed to allow sufficient
time to personally deliver the brief.

1 The General Counsel, the Charging Party, and the Respondent have
excepted to some of the judge’s credibility findings. The Board’s estab-
lished policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
1 All dates are in 1997 unless otherwise indicated.
Specifically, he failed to consider Friday rush hour traffic
when he finished the brief at about 2:30 p.m. on Friday, August
14, 1998, and determined since he had to travel from his office
in Ukiah to San Francisco for reasons unrelated to this proceed-
ing, that he would personally deliver the brief. Respondent
opposes the motion on the grounds the Charging Party failed to
demonstrate excusable neglect. Respondent argues the Charg-
ing Party’s counsel did not complete the brief until 2.30 p.m.
and he did not leave for San Francisco until 2:45 p.m., the af-
ternoon the briefs were due; he knew he could not drive ap-
proximately 110 miles to San Francisco through Friday after-
noon rush hour traffic, park, and timely deliver the brief. Re-
spondent maintains the brief could have been timely filed if
finished earlier and there were admittedly quicker methods of
filing.
Inasmuch as Respondent admits it will not be prejudiced if
the motion to consider the Charging Party’s brief, filed the next
business day after the due date, is granted, I grant the motion to
accept the late filed brief of the Charging Party. All parties
should be afforded the reasonable opportunity to fully present
their positions. Daisy’s Orginals, Inc., 187 NLRB 251 (1970);
World Publishing Co., 220 NLRB 1065 (1975); Downtowner
Motor Inn, 262 NLRB 1058 (1982); and First Termite Control
Co., 265 NLRB 1558 (1962).
Counsel for the Acting General Counsel filed a brief on Au-
gust 14, 1998, but noted some transcript citations were in error
due to pagination differences between the hard copy of the
transcript and the computer disk. Counsel for the Acting Gen-
eral Counsel moved to file a corrected brief, wherein the only
changes were to the citations to the transcript. This motion was
unopposed. Inasmuch as there was no showing of prejudice, no
opposition, and no changes to the statements of fact and argu-
ment, the motion will be granted and the corrected brief will be
considered because late filed and substituted briefs require
“lenience.” See Daisy’s Orginals, Inc., supra, and the other
cases cited in the paragraph above. See also Bricklayers Local
18 (Union County Bldg. Contractors), 159 NLRB 303, 304 fn.
3 (1996), remanded on other grounds 379 F.2d 926 (3d Cir.
1967), and thereafter enfd. 407 F.2d 1309 (3d Cir. 1969).
Based upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the posthear-
ing briefs of counsel for the Acting General Counsel and Re-
spondent, I make the following2
FINDINGS OF FACT
I. JURISDICTION
Based on the Respondent’s answer to the complaint, as
amended, and the Parties’ stipulations at hearing, I find Re-
spondent meets one of the Board’s jurisdictional standards.
2 I specifically discredit any testimony inconsistent with my find-
ings.
333 NLRB No. 17
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 154
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a proprietary commercial packer which entails
the packing of pears for grower accounts. Respondent receives
the pears, weighs, sorts, cools, packages, and markets the pears.
The Company then collects the funds, and, after deducting its
charges, remits the remainder to the grower accounts. The busi-
ness is seasonal. The start of the packing season depends upon
the weather, which determines when the pears ripen. Respon-
dent usually starts preparing for the harvest season in June; the
season usually commences in July and ends in August. Prior to
such preparation, Respondent has between 10–15 employees at
the packing shed.
Alexander Ramsey Thomas III (Tom Thomas) is Respon-
dent’s president. Tom Thomas has an office at another location,
referred to as the Gobbi Street office, and spends about 40 per-
cent of his time overseeing the operation of the packing shed.
Respondent also employee full-time office staff at Gobbi Street,
including Julie Cooper as bookkeeper who supervises the pay-
roll processing, and Joan Bell, the comptroller and office man-
ager. Respondent’s year-round crew at the packing shed in-
cludes Robert Rupe (Rupe), the packing house manager; the
assistant packing house manager, Griselda Ruiz de Vega
(Ruiz); Guadalupe Ballesteros (Ballesteros), foreman of a line
and previously assistant sorting foreman; the senior mechanic;
the head forklift mechanic; and, the head icehouse supervisor.
The remainder of Respondent’s employees are called sea-
sonal employees who tend, with the exception of forklift driv-
ers, to roam from job to job, depending on business exigencies
and the employees’ talents. One of these seasonal employees is
Monica Thomas, who is Tom Thomas’ daughter. Monica Tho-
mas is a full-time student who works principally during the
harvest season. In 1997, Monica Thomas was the handwrapper
crew foreman. Monica Thomas reported directly to Ruiz.
Monica Thomas is bilingual, speaking Spanish fluently.
During the harvest season, Ruiz manages the day shift; about
8 to 10 foremen report to her. These include the sorting fore-
man, the receiving foreman, and the wrapping foreman. These
foremen possess the authority to hire and fire, as well as run
their respective crews. Additionally, there is the floor foreman,
a custom packing foreman, a quality control supervisor, an
icehouse foreman, and a day-shift personnel manager.
In preparation for the harvest season, Respondent employs
forklift drivers, a carpenter, a woman handling quality control,
and a clerical employee. The preharvest seasonal crew consist
varies from year to year, depending upon the nature and extent
of preparatory work Respondent must perform to be ready for
the harvest season. For example, bin repair occurs once every 3
years. “A bin is a four foot-by-four foot square half ton carry-
ing harvest container that the pears are received in.” Respon-
dent hires about 20 to 30 employees to do bin repair, painting,
and general cleanup. As another part of the preparation for the
harvest season, Cooper mails an invitation to work for Respon-
dent to individuals on a list prepared by Rupe and Ruiz. The
invitations are usually sent by June 1.
Once the harvest season commences, Respondent has a crew
of about 200 to 300 employees for the first day that increases to
650 or 700 employees for the approximately 26-day harvest
season. During this 26-day period, the employees work Mon-
day through Saturday. Usually, the day shift works regular time
from 7 a.m. to 4 p.m. with overtime until 5:30 or 6 p.m. Re-
spondent also has a moonlight shift that starts work at 6:30 p.m.
and finishes as late as 12:30 a.m. The night shift lasts about 3
weeks, and the full-day shift lasts about 4 weeks. About 30
percent of the fresh pears are handwrapped and placed in boxes.
In addition to grading, sorting, and packing the pears for the
fresh market, Respondent places some of the pears in icehouses
and refrigeration units. These stored pears are packed to order
after Labor Day. The after-harvest season work is referred to as
postseason or CMI season.3 In 1997, about 55 percent of Re-
spondent’s actual packing occurred postseason. Usually during
the postseason, Respondent’s employees work a 5-day 40-hour
week; overtime is occasionally available on Fridays or Satur-
days.
As the harvest season nears the number of seasonal employ-
ees diminishes. Many students are employed during the season
and some of them start leaving to return to school prior to the
end of the harvest season. Some of the employees follow the
various harvests and leave to pack another crop. Respondent
does not layoff 500 or 600 employees in 1 day, the last day of
the harvest season. The night shift is the first to be laid off.
Respondent has between 100 and 130 employees postseason.
The postseason contingent also is reduced over time until, by
January, Respondent has only between 10 and 15 employees.
Respondent determined to handle the change from harvest
season to postseason differently in 1997. In 1997, they layed
off everyone and rehired those employees who were to work
the postseason. There is no claim this determination was reflec-
tive of animus or was unlawful. In the 1997 postseason, Ruiz
was the foreman in charge of all the packing and assigned the
postseason employees their jobs. The parties stipulated Re-
spondent, as a matter of policy, does not contest unemployment
insurance benefits claims unless the employee claimant was
terminated for misconduct such as fighting or stealing.
One of Respondent’s clients is Catalogue Marketing Incor-
porated (CMI), which also goes by other names not here rele-
vant. Respondent packs a variety of gift packages for CMI.
These gift packages are designed for the holidays so it com-
mences packing for CMI about the middle of October until
Thanksgiving, and ships these packages from Thanksgiving
through mid-January, with the peak being the week before
Christmas.
As here pertinent, the jobs assigned the packinghouse em-
ployees included: baggers, trayers, handwrappers, sorters, and
gift packers. Some packing is performed by a machine. Gift
packing is not performed during the harvest season, just during
the postseason. Only a few sorters are employed postseason.

3 Tom Thomas used postseason to mean post-Labor Day, but this in-
cludes three discreet segments, the first when the pears are packed from
the icehouses, which lasts until about October 15. The second is the CA
season, when the pears are packed from the controlled atmosphere
storage, which lasts until mid-November. The third postseason is the
CMI season. The employees who testified generally referred to the
entire postseason as the CMI season, which is the appellation used in
this decision.
ALEX R. THOMAS & CO. 155
During the harvest season, the number of employees perform-
ing these stated duties varies, depending upon the nature of the
orders for pears Respondent has received. For example, if there
is a large order for pears packed in plastic bags that must be
filled quickly, some of the employees performing fraying and
handwrapping may be assigned to assist in the bagging. Some
orders are for pears packed in trays and other orders are for
pears in boxes where each pear is individually handwrapped.
During the harvest season, the individual foremen decide which
employees are assigned to the different tasks. Postseason, Ruiz
is the individual who determines these assignments. Respon-
dent attempts to develop a work force that can perform all the
packing jobs, handwrapping, fraying, bagging, and sorting.
Each of these jobs require particular skills. For example, the
bagger must pick good pears to put in the bag and of a size so
the bag weighs the proper amount; it is a very precise job. Tray-
ing is placing the pears in trays with plastic cut outs the shape
of pears. Traying does not take a lot of talent but does require
coordination. Sorters hand grade every pear that comes into the
facility, there are four grades of pears. Only about 40 percent of
the pears are suitable for the fresh market and only 30 percent
is suitable for hand wrapping. The remaining 60 percent of the
pears go to various canning markets, including baby food.
Badly damaged pears are discarded. In grading, the sorters look
for blemishes.
Handwrapping is a very specific skill that only some em-
ployees have the talent to perform very well. Tom Thomas
considers handwrapping to be a very difficult job requiring
coordination to pick up the pear, pick up the packing tissue
with the other hand simultaneously, and tightly and neatly wrap
the pear. They must also sort out the bad pears. The pears are
placed in the box in a pattern. Since the size of the pears varies,
there are various numbers of pears that go into the box. Thus, if
the handwrapper is packing 120-count pears, they must follow
the appropriate pattern for that size pear so there are precisely
120 pears in the box. Respondent packs 10 different sizes of
pears; therefore handwrappers must know the 10 different pat-
terns. Gift packing postseason also involves some handwrap-
ping, and 35 or more different gift baskets and fancy boxes are
prepared during the postseason in addition to packing the re-
frigerated pears in the same manner as during the harvest sea-
son.
Handwrappers are paid, regular time; $00.47 per 44 pound
box packed with a bonus of $00.51 per box, and the overtime
rate is $00.705 per box with a bonus of $00.765 per box.4 If the
employee does not pack a sufficient number of boxes to earn
the minimum wage, they are paid $5 per hour regular time
which was raised to $5.15 on September 1, 1997, and $7.50 per
hour overtime. The sorters, baggers, trayers, and gift packers
also receive bonuses which are awarded on a different basis
than the bonus given handwrappers. Baggers and trayers were
paid $5 per hour plus a $.10 bonus for each bag or tray packed.
Sorters are paid $5 per hour and receive a $1-per-hour bonus.

4 Handwrappers also pack one-half boxes for which the are paid
$00.22 per box with a bonus of $00.28 regular time and $00.36 per box
with a bonus of $00.42 per box during overtime.
Proficient handwrappers can earn as much as $9.50 per hour
and thus would be the highest paid line workers.
Whether a handwrapper receives the bonus is determined
each day by the quality controller, who works under the fore-
man, in this case, Monica Thomas. The criteria used include:
whether the employee was on time, did the employee place
stickers on the boxes appropriately, whether the pears were
packed in the correct pattern, were the pears neatly wrapped,
and does the packed box weigh the correct amount. The quality
control person pulls five boxes packed by each handwrapper at
random to check quality. Respondent has a rule, regardless of
how late, an employee cannot receive a bonus if they are late,
even if they met all the other quality control criteria for the day.
In 1997, Respondent started using a computerized timeclock
where the employee swiped a card along a grove and the clock
displays the time and signals if the clocking in process was
acceptable. The clock rounds the time, so if an employee clocks
in at 7:01 a.m., the time is rounded to 7:15 a.m.. Similarly, if an
employee leaves at 5:01 p.m. their departure is recorded as 5:15
p.m. It was undisputed the timeclock was regarded as the offi-
cial timekeeper for the packing plant.
B. The Employment of Rosa and Hilda Mireles
Rosa and Hilda Mireles are sisters. Rosa Mireles has worked
for Respondent since 1986 as a seasonal employee. Hilda Mire-
les has worked for Respondent since 1991 and worked five
postseasons. On August 19, Rosa and Hilda Mireles ceased
employment with Respondent. Respondent claims they quit.
Counsel for the Acting General Counsel and the Charging Party
claim they were laid off at the end of the harvest season be-
cause Rosa Mireles complained about her box count, that the
overtime rate was not appropriately initiated after 8 hours of
work, and her failure to receive a bonus one day because Re-
spondent claimed she was 1 minute late. They also argue Hilda
Mireles urged Rosa Mireles to complain on August 12 about
her pay, which was only 1 week before they were laid off. In
the past, Rosa and Hilda Mireles were asked to stay for the
postseason. They further assert Hilda Mireles spontaneously
came to the aid of Rosa Mireles when Rosa Mireles was being
criticized by Ruiz, which is protected concerted activity under
Cub Branch Mining, Inc., 300 NLRB 57 (1990).
Respondent contends neither Rosa Mireles nor Hilda Mireles
engaged in concerted protected activity and, assuming, ar-
guendo, they did, they were not laid off or otherwise terminated
because of such conduct. It is Respondent’s claim Rosa and
Hilda Mireles simply left Respondent’s employ voluntarily at
the end of the workday on August 19, which was a couple of
days prior to the end of the harvest season. Respondent also
claims had Rosa and Hilda Mireles resumed to work on August
20, Hilda Mireles would have definitely been offered postsea-
son employment because she was a generalist. Respondent was
less clear in its speculation of whether Rosa Mireles would
have been offered postseason work because she was not a gen-
eralist. Ruiz, who determined who worked the postseason in
1997, claims to have offered all handwrappers, including Rosa
and Hilda Mireles, postseason employment.
Tom Thomas determines when the harvest season is coming
to an end and informs Rupe and Ruiz they need to start prepar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 156
ing for the layoff of the night shift in a few days and the follow-
ing week the day shift would be laid off. Rupe and Ruiz deter-
mine who is laid off and who remains working postseason.
Tom Thomas did not consider Rosa Mireles a generalist, how-
ever she was considered one of Respondent’s best handwrap-
pers. Tom Thomas did not know Rosa Mireles’ work history.
The first year Rosa Mireles worked for Respondent, 1986,
she placed padding on the boxes to protect the pears from bruis-
ing. She did not work for Respondent in 1987 and 1994 be-
cause she gave birth to her children, and she did not work in
1988 for other reasons. In 1989, 1990, 1991, 1992, and 1993
she again placed pads in the boxes and did not work the post-
season in any of these years. In 1995, in addition to putting the
padding in the boxes she also sorted pears. As a sorter she
earned more than when she was placing padding in the boxes
and also received a bonus. Rosa Mireles was a sorter for 2
years. Ruiz was her foreman when she was a sorter. While a
sorter, she occasionally worked as a bagger and at times
cleaned the packing shed.
In 1995, Rosa Mireles was asked by Ruiz to stay for the
postseason but declined the offer. In 1996, she started working
as a sorter. Ruiz again asked her to work the postseason which
she did. While working the postseason, she packed gift boxes
and handwrapped pears. She was laid off November 24, 1996.
In 1997, Rosa Mireles was again invited to work for Respon-
dent and she started work in July, usually working 8 to 9 hours
a day. She worked principally if not exclusively as a handwrap-
per.
The first year Hilda Mireles worked for Respondent was
1991. In 1991 and 1992, she was a sorter and worked both
postseasons. In 1993, she worked as a sorter but could not re-
call if she also worked the postseason. In 1994, she again
worked as a sorter and worked the postseason preparing the
gifts packages. In 1995 and 1996, she started work early as part
of the preseason cleaning crew, then as a sorter and stayed for
the postseason making gift packs. She worked five postseasons.
During the postseason she handwrapped pears for the gift boxes
as well as for the large boxes, similar to the work she did dur-
ing the 1997-harvest season. In 1997, Hilda Mireles again
worked preseason cleaning the shed, then as a handwrapper.
Every year Ruiz complimented her on her work; that she was a
fast and good worker. Ruiz was her foreman sometime during
each year she worked for Respondent except 1997, when Ruiz
became assistant manager.
C. Rosa Mireles’ Complaints Including a Complaint Lodged
August 12
Counsel for the Acting General Counsel claims Rosa and
Hilda Mireles concertedly complained to Respondent about an
alleged discrepancy in Rosa Mireles’ box count. Respondent
denies Hilda Mireles ever complained about Rosa Mireles’ box
count or any other matter. It is Respondent’s position that Rosa
Mireles did not engage in protected concerted activity, and
assuming she did, she and Hilda Mireles were not terminated
because of such conduct, they quit. Rosa Mireles had several
complaints in 1996 and 1997. I find the time and content of
these complaints were unclear.
Rosa Mireles had a complaint in 1996 concerning the tally of
her boxes. The date of the complaint is uncertain on the record
but Rosa Mireles believes it was postseason, about September.
According to Guadalupe Ballesteros, who was Ruiz’ assistant
in 19965 and 1997, Rosa Mireles complained during the 1996
postseason that she was not given credit for more than 100 gift
boxes she packed. Rosa Mireles was the only employee to
complain about missing boxes. Ballesteros assured Rosa Mire-
les there were no boxes missing but Rosa Mireles persisted in
her claim.
Rosa Mireles maintains she had to speak to Ruiz three times
to get the matter resolved. The first time Ruiz said she was to
busy, the second she said she would investigate, and the third
time Ruiz was very angry. According to Rosa Mireles:

Every since I told her [Ruiz] that I felt bad about it, but I was
sure that some boxes were missing, she turned around and
saw me, absolutely mad, and screamed at me and said, “I’m
sure that nothing is missing. I guess you have everything.”
That there’s—that there aren’t any boxes that are missing, that
haven’t been accounted for.

Rosa Mireles claims Ruiz later showed her the records re-
flecting her work, but Rosa Mireles claims she informed Ruiz
they were the documents for the wrong week. According to
Rosa Mireles, after informing Ruiz she had not been paid in
accordance with the card Ruiz was referencing:

she said, “I know what’s on the card, because I did it.” And
she didn’t want to see, she was very mad, started to scream,
“How much do you want to be paid.” And that she didn’t un-
derstand what I wanted. I said, “I only want to be paid what I
worked.” And she said, screamed, that I said that people—or
they were robbing me, but there nobody robbed anybody.
I said, “That’s not what I was saying that they were
robbing me, but that there were mistakes.”

Ruiz then sent Rosa Mireles to Ballesteros. Ballesteros
investigated the complaint and found nothing missing from
Rosa Mireles’ box count. According to Ballesteros, she
explained to Rosa Mireles “[T]here were no boxes missing and
that I was going to pay for them anyway, that there were also
some hours missing, but I didn’t know how many of them. She
had extra hours . . . how she had more hours than I had tallied
there.” Rosa Mireles had been paid for more hours than she had
worked according to the tally sheet but Ballesteros determined
to pay her for the claimed missing boxes anyway “so that not to
create a problem I pay her for the ones that she was claiming.”
Ballesteros understood there is a company rule that “you have
to be at peace with employees.” Ballesteros did not know
whether Rosa Mireles had spoken to Ruiz about her claim and
she did not tell Ruiz she paid Rosa Mireles for the boxes. There
is no evidence Ruiz or any other individual making decisions
concerning Rosa and Hilda Mireles knew of Ballesteros deci-
sion to pay Rosa Mireles for an additional 100 boxes during the
1996 postseason.
A few days after this incident, Rosa Mireles was assigned to
pack boxes as a handwrapper. Although Rosa Mireles indicated

5 Ruiz was the packing foreman in 1996.
ALEX R. THOMAS & CO. 157
she thought this may have been retributive, the evidence clearly
indicates handwrappers have the opportunity to earn the most
money if they are proficient and, after a few days Rosa Mireles
became one of the most proficient. There is no evidence Rosa
Mireles’s income suffered from the reassignment or that such
reassignment was other than routine. While counsel for the
Acting General Counsel and the Charging Party had access to
Rosa Mireles’ pay records, they failed to support her claim she
earned more as a sorter.
There is no persuasive evidence such assignment was puni-
tive and no claim it was unlawful. Rosa Mireles received an
invitation to return to work for Respondent for the 1997 season
after the 1996 complaints. Ruiz’ claimed ire did not result in
any retributive action. There is no evidence this complaint gave
rise to Respondent taking any proscribed action against Rosa
and/or Hilda Mireles. There was no evidence such assignments
were not coveted. Ruiz did have input as to who was to be in-
vited to work for Respondent in 1997, and Rosa and Hilda
Mireles both received and accepted such invitations. Thus,
there is no basis to consider the 1996 complaint or Ruiz’ al-
leged reaction to the complaint as the basis for any animus by
Respondent against Rosa and Hilda Mireles. Supporting this
conclusion is Hilda Mireles’ admission Ruiz frequently gave
her short assignments performing different jobs, as business
requirements mandated.
Monica Thomas recalls Rosa Mireles had several complaints
during the 1997-harvest season. One complaint was the new
packers were slowing her down which adversely affected her
income. It is not uncommon, particularly at the start of the har-
vest season for employees to complain about the individual
working next to them, and Respondent moves the employees
around to form the best teams. Other handwrappers also had
complaints. There is no evidence of disparate treatment or pro-
scribed actions as a result of this complaint.
Also at the beginning of the 1997-harvest season, Rosa Mire-
les complained the tally person failed to start marking the over-
time boxes after 8 hours, she started marking them one-half
hour late. Monica Thomas candidly admitted Hilda Mireles and
others also complained about the matter. According to Monica
Thomas, the tally person was not told the proper routine and
Monica Thomas took full responsibility for the error. To correct
the problem, after the shift, Monica Thomas determined how
many boxes each affected handwrapper averaged per hour, and
added that number of boxes as bonus boxes. The correction was
made the same day and all the employees were paid for the
bonus boxes on time. Monica Thomas informed the employees
of the measures she employed to correct the problem the fol-
lowing morning. There is no evidence Tom Thomas, Ruiz, or
Rupe knew of this incident. There is no evidence this complaint
was one of the reasons Rosa Mireles or Hilda Mireles ceased
working for Respondent.
The first day of the 1997-harvest season, Rosa Mireles and
others worked on a special order which took more time to com-
plete because stickers were placed on each pear they packed. At
the end of the assignment, Rosa Mireles asked the tally person
how they would be paid their bonus. She was told the work
would be paid by the hour, no bonus would be paid per box
packed. At the end of the week, Rosa Mireles complained that
she was not paid the appropriate bonus for other boxes she
packed the following Saturday. She claimed all the boxes
packed that Saturday should have been recorded as overtime
boxes with the appropriate larger bonus but only half the boxes
were subject to the larger bonus. Rosa Mireles raised the matter
with Monica Thomas who referred her to Ruiz. Rosa and Hilda
Mireles went together to talk to Ruiz. Rosa and Hilda Mireles
were not paid the overtime bonus for the 50 percent of the
boxes that was the subject of their complaint. There was no
showing they were improperly compensated or their complaint
was casually related to their cessation of employment with
Respondent.
Rosa Mireles never complained to Monica Thomas about
any other unpaid overtime or unpaid hours. In fact no other
employee ever complained to her about pay issues. According
to Rosa Mireles, she mentioned this overtime start time prob-
lem to Ruiz who reacted in anger and told her to ask Monica
Thomas. Her sister Hilda Mireles was nearby as well as other
employees. I find Monica Thomas’ testimony concerning the
overtime bonus to be the most credible. Monica Thomas testi-
fied in an open and convincing manner, her mein was straight-
forward without any indication of device. As indicated herein,
Rosa Mireles appeared less forthright and seemed to engage in
hyperbole.
On or about August 12,6 Rosa Mireles did not receive her
bonus per box packed.7 According to Monica Thomas:

A. She came up to me at the end of the shift and said,
“Monica, I didn’t get [sic] bonus.” And I said, “Rosa,
okay, let’s look at this.” Rosa’s a very fast packer, she’s a
good packer, that’s something that we’ll look into, so
we—I grabbed the bonus sheets out of the—out of the
desk, looked through them, looked at her number, and eve-
rything was fine, except that she had been late that morn-
ing. I said, “Rosa, you were late this morning.” She said,
“Oh, no, I wasn’t.” I said, “It says right here you were late,
let’s go check.” Went into the office and had a print out, a
computer print out of the electronic time clock, which
shows all my packer numbers. It wasn’t the whole thing,
just this section of packer numbers. Her number came out
and it said her number, Rosa Mireles, she had punched in
at 7:15. Now, the clock forwards the 15 minutes, just even
if you’re late one minute. She said, “I wasn’t here at 7—I
was only one minute late.” And I said, “Rosa, I’m sorry, if

6 According to Rosa Mireles, she inquired of the tally person why
she did not receive her bonus on August 4 and was told she was late. It
was not until August 12 that she spoke to Ruiz because she noted the
clock on the wall was not the same as the timeclock. The timecard
indicates Rosa Mireles was late on August 6 and was not paid a bonus
on this date because of her tardiness.
7 The bonus was referred to as a quality bonus and, as previously
discussed, was awarded based on several factors which were part of a
point system. If the employee did not earn enough points, they were not
awarded the bonus. One factor is whether the employee placed their
personal identification stickers neatly and properly on the boxes they
packed. Another factor is whether the pears are packed in the proper
pattern. The third factor is whether the pears are neatly wrapped. The
fourth factor is whether the box weighs the correct amount, and the last
factor is whether the employee was on time that day.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 158
you’re late, you’re late, and you don’t get bonus. You
know that, that’s the rule.” And she said, “All right.” And
that was the end of it.
Q. And she left?
A. Yes.

Monica Thomas admitted Rosa Mireles claimed the time-
clock must be incorrect and·Monica Thomas said, “It can’t be
off.” Rosa Mireles did not refute Monica Thomas’s testimony.
No one was with Rosa Mireles when she spoke to Monica
Thomas. Rosa Mireles then asked Ruiz if she lost the bonus if
she clocked in 1-minute late. Ruiz recalls Hilda Mireles was not
present. Ruiz asked Monica Thomas why Rosa Mireles did not
receive her bonus and Monica Thomas showed Ruiz Rosa
Mireles’ timecard and bonus papers. Ruiz showed Rosa Mireles
these documents and explained that it was company policy to
not pay the bonus if the hand wrapper was late, that she knew
the policy and should come early to avoid future losses of the
bonus.8 Rosa Mireles did not reply to these comments. Accord-
ing to Ruiz, Rosa Mireles did not claim the clock was slow
during this or any other conversation with her. It is unchal-
lenged the employees know they were not on time the moment
they punch in because the clock reads out the punch-in time.
Ruiz also claims Rosa Mireles did not raise any issue involv-
ing overtime. Rosa Mireles claims after initially speaking with
Ruiz, she went to the tally person and checked the number of
regular and overtime boxes she had packed. She disputed the
number recorded, claiming she counted 30 or 32 boxes rather
than the 18 boxes marked on the tally sheet. This was evidently
the time early in.the season when the tally person failed to start
overtime at the appropriate time and Monica Thomas rectified
the error by adding an hour’s worth of boxes to the handwrap-
pers overtime even though they only lost one-half hour of over-
time. I find Rosa Mireles was confused and confused about the
complaints she made.
Rosa Mireles then spoke to Rupe. Rupe does not recall if
anyone was with her but was sure Hilda Mireles was not with
her. She said she did not think it was fair being docked her
bonus for the day being a “second late.” Rupe asked if she had
talked to Ruiz and she said yes. Rupe informed her: “It is com-
pany policy if you are late that you lose the bonus for the day
. . . . If that’s what she’s told you, then I have to stand behind
company policy.” Rosa Mireles shrugged, said, “It’s not fair,”
and walked away. Rosa Mireles did not mention any bonus
relating to any other employee, did not mention overtime and
did not claim the clock was in error. This was the only pay
complaint Rosa Mireles made to Rupe. Hilda Mireles has never
complained to Rupe about her wages. Rupe testified Rosa

8 Rosa Mireles generally corroborated Ruiz as follows:
Because I told her when I came I was driving to work in my car, and I
was arriving on time. I think that I had extra time. But I—when I
would go to punch, I saw that the punch changed to 7:01, and she told
me if I worried that much about losing my bonuses, that if I arrived
one minute late, then I would arrive a minute earlier. And that I
wouldn’t come with the time the radio said, but that I would come
with the time that the punch-in clock said.
Rosa Mireles claimed she told Ruiz the timeclock was running fast.
Mireles speaks some English and spoke to him without an in-
terpreter.
Rupe spoke to Ruiz about Rosa Mireles’ bonus and Ruiz in-
dicated she checked the timecard and the denial of bonus was
appropriate. Both Rupe and Ruiz independently asked Monica
Thomas what had occurred after Rosa Mireles spoke with them.
Monica Thomas informed them Rosa Mireles had been late
thus she did not receive her quality bonus for the day. They
both indicated, “Okay” to Monica Thomas.
Rosa Mireles stated Ruiz confronted her and Hilda immedi-
ately after she spoke with Rupe, as folows:

She [Ruiz] arrived mad and was screaming at me, screaming
at me why did I talk to Bob? That I was overpassing the su-
pervisor, that I shouldn’t have talked to Bob.
Q. And what, if anything, did you say?
A. I told her it’s because I haven’t seen Monica.
Q. And what, if anything, did she say after that?
A. She was very mad and screamed at me that I was
accusing them of stealing me.
Q. And what did you say?
A. I wasn’t accusing her of robbing me. That they
could make mistakes. And she screamed that no, that I was
saying that they were robbing me, or they were stealing
me, and I was always complaining, and that if I didn’t like.
that I should leave from packing.

Rosa Mireles claimed her sister Hilda participated in this
conversation. According to Rosa Mireles, after Ruiz’ com-
ments, she said:

. . . yes, that I like my job, that I wanted them to pay me, that’s
why I worked hard, and she screamed at me how much would
you like you to be paid? I told her only that what—that which
I worked. At that moment my sister said not what she says,
but what she does, because with the stickers we were given, it
was very easy to check and to count, to count the boxes.
And also, when Griselda told me that I was the only
one that complained, my sister said no, there were other
people that were complaining. And she said who? Who are
complaining? My sister didn’t want to give names, and she
said tomorrow you’ll pay for it.

Hilda Mireles did not initially recall specific events on Au-
gust 12. After some refreshing of her memory, she recalled
sitting on a bench outside Rupe’s office after her sister asked
her “that morning . . . if it would be okay to ask Bob about the
boxes of overtime.” According to Rosa and Hilda Mireles, Rosa
Mireles got someone to act as an interpreter in her conversation
with Rupe. Neither Rosa or Hilda Mireles could recall the full
name of the interpreter although Rosa Mireles could recall her
first name. Rupe could not recall if there was anyone other than
Rosa Mireles present during the conversation. According to
Hilda Mireles, Rosa Mireles asked Rupe two questions, one
concerning if an employee could lose the bonus for being 1
minute late and the other about overtime. Hilda Mireles admit-
ted she did not pay attention to the Rupe-Rosa Mireles conver-
sation and she does not understand English “very well.” This
admission indicates the conversation was not transmitted by an
ALEX R. THOMAS & CO. 159
interpreter, contrary to the testimony of Rosa and Hilda Mire-
les.
Hilda Mireles remembered after Rosa Mireles finished talk-
ing with Rupe, Ruiz came by and screamed at Rosa Mireles.
According to Hilda Mireles:

A. The first thing that she [Ruiz] said to her, “Rosa, do
you know what you’re doing? Why did you ask Bob? Do
you know what you’re doing? You’re going over your per-
son who’s in charge of you.”
Q. And did Rosa respond, if you can recall?
A. No, she—because if you don’t like this job, leave
the—leave the area of packing . . . .
A. Rosa said to Griselda that she liked her job.
Griselda answered to my sister, “It doesn’t seem so. You
are—you are who is always complaining. You are the per-
son who is always complaining . . . .”
A. When Griselda said to my sister that she was the
person who was always complaining, I told her, to
Griselda, she was not the only person, that there were
other people who were also complaining, but they weren’t
saying anything because they were afraid. Griselda asked
me scared of what? I answered of losing their job.
A. She, Griselda, told my sister that—that they—that
they ordered boxes that she would like. Griselda told my
sister take—let them pay you all the boxes that you say
. . . .9
A. She [Ruiz] was using a very strong tone of voice.
She was very—she looked very mad.

According to Hilda Mireles, she saw Ruiz several times dur-
ing the ensuing week and “notice[d] that she was mad because
when we saw each other, she looked very serious” and looked
away from Hilda Mireles. Prior to August 12, according to
Hilda Mireles, Ruiz would smile when they met.
Ruiz testified she asked Rosa Mireles if she had discussed
the matter with Monica Thomas because Monica Thomas was
her foreman and had the paperwork including Rosa Mireles’
timecard and bonus papers. Ruiz claimed she obtained the pa-
perwork from Monica Thomas and showed it to Rosa Mireles
explaining why she did receive a bonus that day. When she was
packing foreman, Ruiz would frequently receive complaints
from employees about their pay and she routinely went to the
office and got the paperwork to determine if there were any
mistakes. There were mistakes on occasion. When Ruiz was a
foreman she went to the office frequently with Rosa Mireles
concerning her complaints. Ruiz did not specifically deny Rosa
Mireles’ account of the encounter after Rosa Mireles spoke to
Rupe.
Ballesteros testified Rosa Mireles also complained to her,
“that Monica hasn’t paid her bonus because she arrived late,
and that she was paying the bonuses to her friends.” Rosa Mire-
les wanted Ballesteros to tell Monica Thomas to pay her the
bonus. Ballesteros informed Rosa Mireles that was not her

9 The disparity between the testimony of Rosa Mireles and Hilda
Mireles indicates, at best, Hilda Mireles may be referring to Rosa Mire-
les’ 1996 complaint or the complaint she lodged the first week of the
1997-harvest season.
“obligations, that I didn’t know what was going on.” Balles-
teros never mentioned the bonus to Monica Thomas. Rosa
Mireles was not called to refute Ballesteros’ testimony.
Rosa Mireles recalled she was marked late twice in 1997.
The details of this second late arrival were never presented on
the record. There was no showing Rosa Mireles was treated
disparately either time she was recorded as having arrived late
for work and there is no allegation the failure to award her bo-
nus when she was late was discriminatory or otherwise im-
proper. While Rosa Mireles claims the timeclock was wrong,
she could not recall if there were other employees clocking in at
the same time that day. There was no evidence adduced that
any other employee claimed the clock was in error or clocked
in late that day.
D. August 19
Rosa and Hilda Mireles ceased working for Respondent on
August 19. The parties’ explanations differ greatly. According
to Rosa Mireles, Monica Thomas came up to her near the end
of the workday on August 19 and: “[T]told me the season was
over, that if they wanted to work for CMI [postseason] that they
had to talk to Griselda [Ruiz].” Monica Thomas testified with-
out contradiction that she followed this procedure with all the
employees she supervised. Rosa Mireles did not know when the
harvest season was over but understood that to be the last day.
Hilda Mireles claims she had not been told by Monica Thomas
that if she wanted to work the postseason she was to talk with
Ruiz. She was going to Ruiz’s desk to determine how many
boxes she had packed that day and encountered her sister.
Hilda Mireles could not recall what her sister said at that
time. She admitted to poor recall of the events at the time she
testified and there was some variance between her testimony
and one or more of her written statements. In one of her state-
ments she indicated Rosa Mireles told her that she had been
fired prior to their talking with Ruiz. Her testimony contra-
dicted this statement. She did not recall anyone telling her she
had been laid off prior to speaking with Ruiz. I find, based on
her demeanor which did not appear candid and open, that Hilda
Mireles was not a credible witness, and her testimony will be
credited only when it is an admission against interest or has
been credibly corroborated. On more than one occasion, she did
not appear to be trying to develop an accurate record. Support-
ing this finding was the fact that some of her testimony was
shifting, inconsistent and, she was unsure of some facts.
In the past, Ruiz would individually ask selected employees
if they wanted to work the postseason.10 After Rosa Mireles
punched out for the day, she and her sister Hilda went to talk
with Ruiz. The change in method of announcing the end of the
10 Sister of Rosa and Hilda Mireles, Georgina Mireles, also worked
for Respondent in 1997. Georgina Mireles was a floor lady, which was
a supervisory position. She testified Ruiz asked her to work the post-
season in 1997. Inasmuch as Georgina was a supervisor, the difference
in the manner of asking the employee to remain postseason compared
to her sisters being instructed by Monica Thomas to ask Ruiz, is not
probative of disparate treatment or indicative of proscribed motive.
There is no evidence any handwrappers were individually asked to
remain for the postseason by Ruiz rather than being instructed by
Monica Thomas to ask Ruiz.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 160
harvest season and inviting workers to work postseason in
1997, the first year Ruiz was assistant plant manager, appears
to have been applied to all the handwrappers. When they found
Ruiz, she was talking to a group of employees, telling them
they were to continue working for Respondent in the postsea-
son. On cross-examination, Rosa Mireles admitted she did not
hear all of Ruiz’ comments to these employees. When that
group of employees left, Rosa and Hilda Mireles stayed as did a
first-year employee named Alva.11 Alva asked Ruiz if she could
stay and was told yes.
Rosa Mireles testified, next:

Griselda fumed around, looked at them, and told them that’s
all, girls. The season is over, I’ll see you next year.
Q. And did anyone else speak after that?
A. I spoke.
Q. What did you say?
A. I told her what about us? Monica told us—asked us
to ask you if we’re coming tomorrow.
Q. And what did Griselda say?
A. She said, “Tomorrow, no. Today was your last day,
the season is over.”

Hilda Mireles recalled as they approached Ruiz and a group
of about 12 employees, she heard Ruiz say: “Yes, we’re going
to continue, we’re going to work tomorrow. I’m not sure if
we’re going to pack, but tomorrow at 7:00.” In response to a
question she heard Ruiz say: “Yes, she told her that tomorrow
at 7:00 and not to leave, I needed her to work at that time, at
that moment to go outside to see what she could do, or what
they would tell her to do.” Rosa and Hilda Mireles claim em-
ployees who had less experience at Respondent including indi-
viduals that had worked only that season and were not as adept
at handwrapping as they, were instructed to report to work the
next day.
Monica Thomas testified, on August 19:

I went around to every packer, as I generally do to-
wards the end of the day to tell them what we’re expecting
the next day, what time we’re quitting that day, tell them
we’re stopping work that day. And I went around and said
we’re going to be slowing down this week, if you are
thinking of working post-season, you need to speak with
Griselda, we’re going to be filling out applications for this
year post-season working, you need to speak to her, and
that was it.

She denies telling anyone on her crew the harvest season for
handwrappers was ending that day, rather, she asserts she in-
formed them the end was soon. She testified: “When the lay off
goes into effect, I say, ‘Today is our last day, thank you very
much for working, I’ll see you next season, hopefully.’” Ruiz

11 Rosa Mireles thought Alva was a very slow handwrapper. I note
that according to GC Exh. 16, there was no handwrapper named Alva,
but there was an Alba Naldez who handwrapped 2 days, packing six
boxes less than Rosa Mireles the 1 day they worked together. On GC
Exh. 19, there is an Alva Acosta listed whose work record demon-
strated she was at least an average handwrapper if not above average.
This is another indication Rosa and Hilda Mireles engaged in hyperbole
when they described Alva as being an inexperienced slow worker.
told her to inform the employees the end of the harvest season
was approaching.
Hilda Mireles next claimed an employee named Gabriella
asked if she was to work the following day and Ruiz said no.
Hilda Mireles understood this was Gabriella’s first season and
she had worked as a handwrapper. Rosa Mireles then asked if
she and Hilda Mireles were to work the next day, and according
to Hilda Mireles: “Griselda made a brusque gesture with her
hands. ‘No. that’s all, the season is over.’”
Rosa and Hilda Mireles then left and did not return to work.
Rosa Mireles was sure Ruiz was addressing her and her sister
because of her use of the Spanish term “su” which is the formal
term for you or the plural form of you. According the inter-
preter:

“Su refers to your formal. It might also refer your last day .
. . . . ‘Tu’ is an informal way of referring to people. Su is a
formal way of referring to people. Tu is a friendly way of re-
ferring to people. Su can be a formal or a distance.” Accord-
ing to Rosa Mireles, Ruiz never addressed her in the past us-
ing the formal term “su.”
E. Hilda Mireles’ Returns to the Plant
Hilda Mireles resumed to Respondent’s packing plant three
times after August 19. The first time was to repay $350 Rupe
arranged for her in 1996, as a loan from Respondent to pay for
repairs to her car. She was accompanied by her nephew, Fran-
cisco Mireles, Rosa Mireles’ son, who was about 9 years old at
the time. Francisco Mireles was Hilda Mireles’ interpreter. This
visit occurred around August 22. She gave Rupe the cash and
he had a receipt prepared for her. Hilda Mireles asserts she
asked her nephew “to tell him that it was unjust that Griselda
would have told me to leave. If he remembered the day that my
sister had talked to him.” She claims Rupe recalled the incident
and she asked her nephew to tell him she “was thinking that
Griselda had told me to leave or to go away because of that, or
because I had participated in that conversation.” Her nephew
informed her Rupe replied, “[T]hat Griselda was—would de-
cided who would leave and who would stay.” Rupe asked if she
had a job and she replied no.
According to Francisco Mireles:

A. My aunt told—my aunt told me to tell Bob that
when my mom went to tell Griselda that they weren’t pay-
ing her the money they had to pay her, my mom told her,
and then Griselda said why was she the only one. Then my
aunt, my Aunt Hilda, came in and said that she wasn’t the
only one, that other people were just scared to complain.
Q. So did you tell Bob all that?
A. Yes.
Q. And what was the next thing that was said after
that?
A. Bob said he didn’t know—he didn’t know why they
laid off my Aunt Hilda if the problem was with my mom.
Q. And did your aunt say—did you translate that for
your aunt? That part?
A. Yes.
Q. Did she say anything in response to that part?
A. No.
ALEX R. THOMAS & CO. 161
Q. And what was the next thing that was said?
A. Bob—Bob said anyways he cannot do anything
about it because Griselda was the one who decided who
gets—who goes and who doesn’t.

Francisco Mireles also asserted Rupe did not request that he
ask his aunt why she quit, offer her a job or mention her work-
ing for Respondent in the future. According to Rupe, he noted
that was a lot of cash and inquired if Hilda Mireles would pre-
fer to make payments. She replied no. He then asked, “[I]f she
would go out and talk to Griselda about why she and Rosa
Mireles quit.” Rupe did not want Hilda Mireles to discuss her
quitting using the young boy and she could discuss the matter
fully with Ruiz in Spanish, without an interpreter “because they
were no-shows, they were quits.” Rupe testified he asked Hilda
Mireles why she was not working and in reply: “She would just
shrug and not say a word.” Rupe encouraged her to speak to
Ruiz about why she quit. He never asked her if she wanted to
work the postseason.
Bell testified she was present when Hilda Mireles returned
the money to Rupe and overheard the conversation. According
to Bell:

Hilda laid down some cash on Mr. Rupe’s desk, and
the young boy—she didn’t ever really look at Mr. Rupe.
She just kept telling the boy what to say to him, and the
little boy said, “Hilda wants to pay this money back,” and
Mr. Rupe, he said a couple times to her, “Hilda, you don’t
have to pay this back right now.” He said, “Winter is go-
ing to come up. Money is going to get tight, and I don’t
want things to get”—you know, “you to be hurting. You
don’t have to pay this right now.” He said that a couple
times, and she just would shake her head no, and she kept
pushing the money towards him. The little boy said, “No,
she wants to pay this . . . .”
[Rupe] asked her why she wasn’t, you know, working,
and she didn’t say—she just would look at the little boy
and not really say anything. He asked her a couple times.
“If there’s a problem, go talk to Griselda,” and again she
would just sort of shake her head and that was about it.12

Bell denies Hilda Mireles, through her nephew, mentioned
anything about Ruiz telling her not to come to work or, that she
was terminated because Rosa Mireles had complained to Ruiz
or others about her bonus or pay. Because of the unusual cir-
cumstances of the loan, Bell was paying attention to the con-
versation. Bell balances Rupe’s business checkbook and in-
quired about the $350 item when she first noticed it in 1996
bout 1 week later Hilda Mireles resumed to the facility to return
some money from a savings pool run by Ruiz and Ballesteros.
Hilda Mireles asked to speak with Ballesteros and while wait-
ing saw Ruiz who passed by her as if she had never seen her

12 On cross-examination, Bell testified:
[Rupe] just asked [Hilda Mireles] two things that I remember. He
asked her first, like, well, why aren’t you working. He asked that a
couple times. She didn’t respond at all, just sort of shook her head at
the little boy. And then he asked her to go talk to Griselda. If there’s
some problem, go talk to her. He said that a couple times, and that was
it.
before. Ballesteros, when she saw Hilda Mireles, asked why
she was not working and Hilda Mireles merely shrugged. Ac-
cording to the interpreter, “[W]e use this expression very often
in Spanish, in our countries, when you say, ‘Well, I don’t have
an answer for that. So what?’” Ballesteros then suggested Hilda
Mireles speak with Ruiz and Hilda Mireles responded again
with a shrug. Three days later, Hilda Mireles again went to the
plant to deliver Avon products and observed employees bag-
ging pears.
F. Respondent’s Reasons for its Actions
In addition to claiming Rosa and Hilda Mireles quit, Re-
spondent gave various reasons for Rosa Mireles’ layoff. In a
letter to Rosa and Hilda Mireles’ attorney, Rush, signed by
Tom Thomas, Respondent claims Rosa Mireles was not termi-
nated, she was laid off in accordance with the normal seasonal
procedures, with one exception. The letter, dated February
5,1998, provided:

The 1997 exception concerned a change in the skills of
the employees we asked to remain for the fall season. In
prior years, we had tried to keep as part of the fall crew
people who were packer specialists, such as Rosa Mireles.
In 1997, because of major changes in our operating and
marketing procedures in response to customer demands,
we needed to offer fall employment to folks who were
“generalists,” that is, employees who had the training
and/or experience to handle a number of different jobs in
the packing shed.
Rosa Mireles did not fit this description. She had
worked almost exclusively as a packer, and had very little
experience in other jobs. Accordingly, Ms. Mireles was
one of six hundred employees who were not offered sea-
sonal fall employment.

The letter also claims Hilda Mireles met its “generalist”
needs, and the same day Rosa Mireles was laid off it asked
Hilda Mireles to stay for the postseason. However, the letter
continues, Hilda Mireles left that afternoon and never resumed
to work. Respondent considered her a voluntary quit because
she never contacted her supervisor and did not explain her ab-
sence. The letter discussed several of Rosa Mireles’ complaints
and related Respondent’s policy, given to employees during
daily training sessions, that employees are to ask their supervi-
sors/foremen anything they wished and, if the reply is not satis-
factory, to go to the next level of management. “The notion that
any of our employees would be fired ‘because they com-
plained’ is absolutely contradictory to our open communication
policy.”
On February 20, 1998, Respondent wrote a Region 20 repre-
sentative in response to the charge. In this letter, Respondent
denied Rosa and Hilda Mireles engaged in concerted protected
activity or were fired because of such alleged conduct. Respon-
dent explained the seasonality of its operations, resulting in the
layoff of about 600 employees at the end of the harvest season,
retaining about 100 employees to work the postseason. The
change in retention policy for the 1997 season was explained in
the letter as well as its open door policy. Respondent reiterated
any claim Rosa Mireles was fired because she complained con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 162
tradicts the long standing “open communication policy.” This
letter also maintains Rosa Mireles worked principally as a
packer. “Rosa has very little experience in other packing shed
jobs.” Respondent failed to introduce any probative evidence
refuting Rosa Mireles’ testimony she performed many jobs in
past years and it was only during the 1997-harvest season she
worked principally as a handwrapper. Respondent admitted
Hilda Mireles had frequently held positions other than hand-
wrapper, including sorter, bagger, trayer, and quality controls.13
Tom Thomas admitted most if not all of his information con-
cerning Rosa and Hilda Mireles came from conversations with
Rupe, not Ruiz. Rupe admitted he was not knowledgeable
about Rosa Mireles’ work.
Respondent acknowledges Rosa Mireles complained that she
did not receive her bonus on or about August 12. She never
complained about any other employees compensation or other
issues relating to their terms and conditions of employment.
After investigation, no supervisor could recall any complaint by
Hilda Mireles. Respondent contends in the letter it did not, and
did not intend to ask Rosa Mireles to work postseason because
she was not a generalist. The letter further avers Monica Tho-
mas informed Rosa and Hilda Mireles on August 19, that Au-
gust 20 would be the last day of the harvest season and if they
wished to work the postseason they should speak to Ruiz. The
letter claims Ruiz saw Rosa and Hilda Mireles with other em-
ployees at the end of the workday on August 19, but neither
Rosa nor Hilda Mireles spoke to Ruiz. “They did not report
bact to work on the 20th, and never inquired at any time about
working on the fall crew.”14 Respondent also declares all em-
ployees were informed on August 19 to report for work on
August 20.
Respondent explained Rosa and Hilda Mireles were not in-
vited to work the 1998-harvest season because they were con-
sidered voluntary quits at the end of 1997. It is company policy
not to send invitations to work to individuals who voluntarily
quit. This claimed policy is unrefuted. Thus, in these circum-
stances if it is determined Rosa and Hilda Mireles voluntarily
quit, the failure to invite them to work the 1998 season would
not be a violation of the Act.
On April 28, 1998, Respondent again wrote the Region as-
serting that all employees who were interested in working dur-
ing the postseason were to contact Ruiz. “No employee was
told not to apply for the fall crew.” All employees were told to
report to work on August 20, and Rosa and Hilda Mireles did
not report to work that day without notice or reasons. Rosa and
Hilda Mireles did not speak to Ruiz. Respondent also claims
the week of August 25–31 was the first week of the postseason.

13 Hilda Mireles never claimed she performed any quality control
work for Respondent.
14 Georgina Mireles testified she was not asked to work August 20
after she declined the invitation to work the postseason. Georgina Mire-
les admitted she assumed August 19 was her last day because usually
she is asked to stay the postseason the last day of the harvest season. I
find this assumption is not a probative refutation of Respondent’s claim
the harvest season did not end on August 19, although some students
stopped working that day to prepare for their return to school. Respon-
dent was reducing its employee complement that entire week.
Monica Thomas did not determine who would be asked to
remain for the 1997 postseason. She did testify whenever Rosa
Mireles complained to her she was alone. Near the end of her
work year, Monica Thomas wrote a memorandum concerning
Rosa Mireles as follows:

As supervisor of the day packing crew, l worked
closely with Rosa Mireles and am [sic] familiar with her
work performance. As a packer, Rosa was quite fast and
her boxes relatively neat. Her attitude, however, did not
follow suite. A constant complainer, it was difficult for me
to face such negativity from her every day.
Sometimes her complaints were about the flow of
pears, whether it be to light or to heavy, depending on
what she preferred. Other times she attacked the manage-
ment, claiming that a certain line-up was unfair or a bonus
check unjust. One particular complaint came after the shift
one afternoon when Rosa inquired why she had not re-
ceived a bonus on a previous day that week. I referred
back to the bonus sheet for that particular day and found
that she had been late that morning and not received the
bonus. A computer printout from the E.T.C. (Electronic
Time Clock) revealed the same, with a record of the time
she had punched in that day rounded to the nearest quarter
hour. Upon seeing this she protested that the clock was off
that day. I responded saying that if that had been the case
she should have spoken to me that morning, as there
would probably have been an abnormal amount of people
punching in late. The next time I heard of a similar com-
plaint was when she approached my two superiors, Bob
Rupe and Griselda Ruiz. I was never directly approached
about the subject again.

Monica Thomas admitted she was asked to prepare this
document but could not recall who made the request. The so-
licitation was to “describe what happened” when Rosa Mireles
had inquired about not receiving her bonus. On direct examina-
tion, Monica Thomas testified she could not say Rosa Mireles
complained everyday but she was negative toward her. This
was the only memorandum Monica Thomas has written about
an employee. Monica Thomas did not have any role in deciding
who would be retained for the postseason; Ruiz and Rupe did
not consult her.
Rupe, in his planning documents for the postseason, included
Hilda Mireles as a postseason employee. Rupe determined not
to include Rosa Mireles in the projections. Rupe explained
“I’ve had a lot more closer relationship working with Hilda
than I have with Rosa. I prefer to work with her.” According to
Rupe, he knows of no formal recommendation that Rosa Mire-
les not work the postseason. In contradictory evidence, on or
about September 5, when Rupe was contacted by Rosa and
Hilda Mireles’ attorney, he said Rosa Mireles was laid off in a
general layoff. Rupe believed the date of the general layoff was
August 19. Later, on redirect, Rupe testified he could not recall
the date the harvest season ended but believed the first day of
the postseason was August 26.
Rupe admitted Ruiz made the decision as to who worked the
postseason in 1997. Rupe decided who received the invitation
to work for Respondent for the 1998-harvest season. Rosa and
ALEX R. THOMAS & CO. 163
Hilda Mireles did not get invitations, according to Rupe be-
cause:

The policy is if a person quits, they’re a quit. If that person
quit and then comes back to me, or not necessarily to me but
comes back or uses another person such as Griselda, and then
comes to me and says that I had to quit because I had nobody
to take care of my kids or whatever, then I’ll reconsider and
hire them.

Ruiz testified at great odds with Rosa and Hilda Mireles. She
claims she directed Monica Thomas to inform all the packers
working on August 19, to see her at the end of the workday
because she wanted to determine who would be willing to stay
and work the postseason. More than 20 handwrappers were
present. According to Ruiz:

Some of them asked who was going to stay, and I said who-
ever wants to stay because I need all the wrappers that can
stay and work. . . . I said that I didn’t want anybody that they
were going to have to leave because they go to grapes, pick
grapes. It’s almost right after the season of pears. A lot of
them go to Mexico and vacation. I told them be sincere with
me. If they were going to stay, to let me know, and if they
weren’t, to let me know too. And some of them they said that
they couldn’t because they didn’t have a baby sitter. Others
said that they were going to go to college. Another one said
that she was going to Los Angeles. And then the others said
that they could stay, so I just said okay. I’ll see you tomorrow
. . . .
I thanked them . . . I said to them that I thank them
very much for helping us out in the season, that I hope I
can see them next year is what I say.

Ruiz denies telling any employee that afternoon not to come
to work the next day. She did not see Rosa and Hilda Mireles
with the group of handwrappers she was addressing. In previ-
ous years, when Ruiz was the sorter foreman, she individually
asked the sorters if they wanted to work the postseason. When
she became assistant manager in 1997, she instructed the fore-
men to have the employees come to her so she could ask if they
wanted to work the postseason. Rupe informs her when the
harvest season is ending and gives her a list of employees
which has empty spaces to add employees. According to Ruiz:
“And then we put them on whoever wants to stay and pack
because we need all the wrappers.” The reason for needing
wrappers is: “Because everything that’s been put away it’s for
wrapping, to make—to wrap them in boxes.” Ruiz had not
discussed with Rupe whether Rosa Mireles should have been
on the list. If Rosa Mireles had asked to work the postseason
she would have retained her. Ruiz recalled the harvest season
ending at the end of the week, and August 19 was a Tuesday.
As an indication of Ruiz’ lack of animus toward Rosa Mire-
les, while they were in class together at the local college, Ruiz
helped Rosa Mireles understand directions from the instructor,
which led to the instructor chastising Ruiz. This incident was
unrefuted.
Ballesteros was present at the August 19 employee meet-
ing.15 Her testimony is corroborative of Ruiz’. According to
Ballesteros:

Griselda said, “I’m going to use all of you because you know
how to do the work, the job. But I want to know which one of
you are going to stay all the way through because I don’t want
anyone to abandon the job halfway through. I need you all.”

Several employees said they could not stay. Ruiz thanked
them and indicated she expected to see them the next harvest
season. Ballesteros saw Rosa and Hilda Mireles standing about
6 feet apart from the main group of packers. She did not recall
if they were present at the beginning of the meeting, but did
notice them when Ruiz was finishing her talk. Ballesteros did
not hear them say anything to Ruiz and asserts Ruiz did not say
anything directly to Rosa and Hilda Mireles. She testified Ruiz
did not tell any of the handwrappers the season was over or,
that any handwrapper should not come to work the next day.
After all the employees left, including Rosa and Hilda Mireles,
Ballesteros remained to talk with Ruiz.
It has been Ruiz’ experience when she was a foreman that
employees frequently have questions about their pay and “[a]s a
foreman, I used to go to the office and find out what happened
and get their records and see—and help them out and see what
was wrong with them.” She readily admitted on occasion Re-
spondent’s office made errors in employees’ pay. She further
testified:

Q. When you were a sorter foreman, did you ever go to
the office with Rosa about her pay complaints?
A. All the time.

As previously indicated, it has also been Ruiz’ experience
that at the end of the pear harvest season some of the employ-
ees leave immediately to pick grapes and many of Respon-
dent’s employees vacation in Mexico. Thus she was concerned
the employees who said they would remain working for Re-
spondent were sincere because they were needed.
III. ANALYSIS AND CONCLUSIONS
Counsel for the Acting General Counsel and the Charging
Party argue Rosa and Hilda Mireles were engaged in concerted
protected activity when Hilda Mireles joined in the complaint
of Rosa Mireles and they were laid off because of the com-
plaint. They also aver the actions of Rosa and Hilda Mireles
after August 19, indicate they did not voluntarily quit. Respon-
dent avers Hilda Mireles had no complaint, Rosa and Hilda
Mireles were not acting in concert, and they were not laid off
because of any complaint.

15 Ballesteros was uncertain if the day of this meeting was August 18
or 19, testifying it occurred on August 18. Her confusion may have
arisen based on comments preceding this testimony. I find this confu-
sion or lack of precise recall of the date does not reach the level of
calumny or otherwise require her testimony not be credited. In consid-
ering her testimony, I observed she attempted to give full and complete
answers with no hint of device or lack of candor. Her testimony is
credited.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 164
A. Concerted Activity
In Meyers Industries (Meyers 1), 268 NLRB 493 (1984),16
and Meyers Industries (Meyers 11), 281 NLRB 882 (1986), the
Board established the test for determining whether an employee
has been discharged for protected concerted activity under Sec-
tion 8(a)(1) of the Act. As noted in Diva, Ltd., 325 NLRB 822,
830 (1998):

In order to be found “concerted,” an employee’s activity must
be engaged in with or on the authority of other employees,
and not solely on behalf of the employee himself. Once the
activity is found to be concerted, an 8(a)(1) violation will be
found 20 if, in addition, the employer knew of the concerted
nature of the employee’s activity, the concerted activity was
protected by the Act, and the discharge was motivated by the
employee’s protected concerted activity. [Meyers] at 497. In
the second Meyers decision, the Board explained, in response
to the court’s remand, that individual activity could still be
found to be concerted under the new test if there is some de-
monstrable linkage to group action. The Board reiterated its
position that an individual employee’s actions seeking to initi-
ate, or to induce or to prepare for group action, as well as an
individual employee’s bringing truly group complaints to the
attention of management, will be found concerted. The ques-
tion of whether an employee has engaged in concerted activ-
ity is a factual one based on the totality of record evidence.
Id. at 886–887. See also Ewing v. NLRB, 861 F.2d 353 (2d
Cir. 1988). Since Meyers, the Board has found an individual
employee’s activities to be concerted when the grew out of
prior group activity [Every Women’s Place, 282 NLRB 413
(1986)]; when the employee acts, formally or informally, on
behalf of the group [Oakes Machine Corp., 288 NLRB 456
(1988)]; or when an individual employee solicits other em-
ployees to engage in group action, even where such solicita-
tions are rejected. [El Gran Combo de Pueffo Rico, 284
NLRB 1115 (1987), enfd. 853 F.2d 966 (1st Cir. 1988); Cir-
cle K Corp., 305 NLRB 932 (1991)]. However, the Board has
long held that, for conversations between employees to be
found protected concerted activity, they must look toward
group action and that mere “griping” is not protected. See
Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3rd
Cir. 1964), and its progeny.

I find Rosa Mireles’ conduct on or about August 12, was not
concerted protected activity. I also find Rosa Mireles’ com-
plaint concerning the overtime bonus was made during the first
week of the season and was not shown to have a casual nexus
to any of Respondent’s subsequent actions which are claimed to
be violative of the Act. The criteria for the bonus to accrue was
unquestioned and the complaint was expeditiously addressed
without any indication it induced animus. I also find her com-
plaints in 1996 to remote in time to be considered herein.17

16 Remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), cert. denied 474 U.S. 948 (1985), reaffd. 281 NLRB 882 (1986),
enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987).
17 Assuming Rosa Mireles also complained about a shortage in her
overtime box count, I would still conclude she was not engaged in
concerted activity for there was no evidence Rosa Mireles discussed
Rosa Mireles’ claim she complained about anything other
than the loss of her bonus because she was late on August 12, is
not credited. Her countenance when testifying was not direct
and believable. She appeared to be tailoring her testimony to
help her cause. While Rosa Mireles may have asked her sister
Hilda Mireles whether she should raise the loss of her bonus to
Rupe, this question was not linked to any group activity. There
was no evidence any other employee lost a bonus because they
were late. There is no evidence any other employee believed
the rule requiring the loss of the bonus if an employee is late
was unfair or was a group concern. Diva, Ltd., supra.
I find Hilda Mireles’ testimony concerning the comments
she made to Ruiz about other employees having complaints
unbelievable for the previously stated reasons. Moreover, the
nature of the complaints was never detailed. It was never estab-
lished that any employees had complaints other than Rosa
Mireles or she was speaking on behalf of any other em-
ployee(s). On this record, it cannot be found that Rosa Mireles
was speaking for anyone other than herself. Hilda Mireles was
not shown to have shared Rosa Mireles’ complaint concerning
the bonus.
Rosa Mireles’ comments to Monica Thomas, Ruiz, and Rupe
made it clear she was complaining alone about the effect of a
long standing policy that had not been shown to have been the
subject of any other employee’s complaint. I find counsel for
the Acting General Counsel’s reliance on Cub Branch Mining,
Inc., 300 NLRB 50 (1990), unpersuasive. There was no credi-
ble evidence Rosa Mireles’ actions on August 12, or any other
date here pertinent, were “to induce or to prepare for group
action.” Meyers I and II, supra. There is no evidence of any
group action as a result of Rosa Mireles’s complaint. Such
cloud of group action is dispelled by Hilda Mireles’ admission
she did not participate in Rosa Mireles’ discussion with Rupe
or Monica Thomas and some of the alleged conversations with
Ruiz. Hilda Mireles’ claim she alleged Rosa Mireles was ad-
dressing complaints of others who were afraid to talk for them-
selves is expressly discredited for the previously stated reasons.
Moreover, there is no independent evidence of such complaints.
Not one employee other than the Mireles sisters testified about
the claimed unspecified complaints.
Hilda Mireles paid no attention to the conversation with
Rupe. One of the reasons for her inattention was she did not
understand English. This admission against the Charging
Party’s interest contradicts their claim Rosa Mireles got some
unidentified employee to translate for her. This admission
against interest also adds credence to Rupe’s testimony, inas-
much as he recalled there was no such translator. Thus, Hilda
Mireles’ proximity to any conversations does not establish she
made common cause with Rosa Mireles over the bonus or any
other issue Rosa Mireles is found to have raised after the first
week of the harvest season. On the contrary, her admission
demonstrates she was not making common cause with her sister
Rosa Mireles. I conclude there is no evidence this involved a
group complaint. There is no claim Respondent’s policy was

such a shortage with any other employees or that other employees
experienced similar shortages. There is no evidence of prior group
activity.
ALEX R. THOMAS & CO. 165
contrary to law or was otherwise improper. Compare, Boese
Hilbum Electric Service Co., 313 NLRB 372 (1993). There is
no persuasive evidence Rosa Mireles’ actions on August 12
were in furtherance on any groups goals. There is no basis to
infer, based on the credited evidence, Respondent had a reason
to infer Rosa Mireles was speaking on behalf of other employ-
ees. Wafter Brucker & Co., 273 NLRB 1306 (1984). Thus, it
has not been established Respondent had knowledge of Rosa
Mireles’ concerted activity.
Additionally, there is no evidence Rosa Mireles’ actions
were efforts to enlist others or induce group action. There is no
collective-bargaining agreement that is being addressed in her
complaint. There is no evidence Rosa Mireles was making
common cause with any other employee to reverse the bonus
policy. There was no threat or claim Rosa Mireles was going to
involve others in her petition to change the rule as it was ap-
plied to her. There is no evidence Rosa Mireles was taking
action for the mutual aid an protection of any other employee.
B. Were Rosa and Hilda Mireles Unlawfully Terminated?
In the event the Board overturns my finding Rosa and Hilda
Mireles did not engage in concerted activity, I find, for the
foregoing reasons, that counsel for the Acting General Counsel
failed to prove by the preponderance of the credible evidence
that Rosa and Hilda Mireles’ compliant(s) was a motivating
factor in the employer’s action.
There is evidence of pretext in the varying reasons advanced
by Respondent’s representatives for its actions and, the timing
of Rosa and Hilda Mireles’ cessation of employment raises
suspicion. Respondent gave shifting reasons for the cessation of
Rosa and Hilda Mireles’ employment. Initially, Tom Thomas
and Rupe claimed they were laid off. Tom Thomas also
claimed Rosa Mireles would not have been retained for the
postseason because she was not a generalist. Rosa Mireles’
work history demonstrated she was a generalist and no one who
had first-hand knowledge of her abilities claimed she lacked the
skills and ability to be a generalist. Monica Thomas wrote a
memorandum characterizing Rosa Mireles as a complainer and
admitted engaging in hyperbole in the memorandum. Respon-
dent also claimed Rosa Mireles did not like to work overtime
but this bare claim was unsubstantiated. Ruiz claimed she
needed all the handwrappers available for the postseason.
Such false and/or shifting reasons as well as the timing of the
action, about 1 week after the bonus complaint, constitutes
circumstantial evidence of unlawful motivation. However, after
considering all the circumstances in this case, including the
credibility of the witnesses, I do not find this circumstantial
evidence establishes Respondent probably terminated Rosa and
Hilda Mireles because Rosa Mireles complained about her
bonus or any other working condition.
Neither Rupe nor Tom Thomas were directly involved in the
cessation of the employment of Rosa and Hilda Mireles. Ruiz
testified in an open and honest fashion about the events of Au-
gust 19, and based on her demeanor, her testimony is credited.
Ruiz and Rupe testified they did not strictly adhere to the post-
season planning documents prepared by Tom Thomas and
Rupe. Ruiz was the sole arbiter of who was retained. There was
no evidence Ruiz relied on the Tom Thomas’ and Rupe’s plan-
ning documents that did not include Rosa Mireles as a postsea-
son employee. The timing of any deed has import only where
the company has taken action. In this case, I find, based on
Ruiz’ credited testimony, that Respondent did not take any
action that resulted in the cessation of Rosa and Hilda Mireles’
employment. I find Rosa and Hilda Mireles either voluntarily
quit or, through their own misunderstanding, incorrectly be-
lieved they were laid off.
The Charging Party argues Rosa Mireles’ seeking counsel
because she felt she was treated unfairly is probative the testi-
mony of Rosa and Hilda Mireles is credible and they were
treated unfairly. I find such argument unpersuasive. If such
reasoning prevailed, then there would be no need for hearings,
the mere filing of a charge would be demonstrative of a viola-
tion.18 Moreover, such action does not eliminate the possibility
that Rosa and Hilda Mireles acted based on their misunder-
standing of the events of August 19 or Rosa and Hilda Mireles
changing their minds about quitting. There was no evidence
concerning Rosa and Hilda Mireles’ activities after August 19,
they may have had jobs in the harvest of another fruit, or had
planned a vacation or family obligations which precluded their
working postseason. There is no basis on this record to con-
clude, contrary to the Charging Party’s argument, that Rosa and
Hilda Mireles had no reason to quit. Such argument is mere
surmise, and disregards the possibility of a misunderstanding.
Ruiz’ testimony she informed all the handwrappers she
needed them for the postseason if the could stay is undisputed.
Rosa and Hilda Mireles admitted they did not hear all of Ruiz’
presentation, which was made in both Spanish and English.
Ballesteros corroborated Ruiz’ testimony, recalling Ruiz in-
formed the assembled employees:

I’m going to use all of you because you know how to do the
work, the job. But I want to know which one of you are going
to stay all the way through because I don’t want anyone to
abandon the job halfway through. I need you all.

18 Similarly, Rosa Mireles’filing for unemployment insurance is not
probative of the claim she was terminated. Rosa Mireles may have
routinely filed for unemployment insurance yearly at the end of her
employment with Respondent. Her actions in 1997 were not shown to
be distinct from her past practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 166
Ballesteros also testified Ruiz did not inform any of the em-
ployees that afternoon the season was over. There was no evi-
dence Ruiz’ statement was false or incorrect. Ballesteros testi-
fied in a direct manner without any indication of device or lack
of candor; her testimony is credited. Bolstering this conclusion
was Ruiz’ candor, including her admission she did not recall
seeing Rosa and Hilda Mireles the afternoon of August 19.
In contrast to the open manner Ruiz and Ballesteros exhib-
ited while testifying, Rosa and Hilda Mireles appeared to be
tailoring their testimony to fit their story. In fact, according to
Hilda Mireles, Rosa Mireles went so far as to claim she had
been told she was laid off prior to meeting with Ruiz the after-
noon of August 19. Hilda Mireles appeared unsure when she
testified and she and Rosa Mireles did not seem to be trying to
present the facts in a complete and forthright manner. Hilda
Mireles had admittedly poor recall of the events.
Buttressing this conclusion Hilda Mireles’ testimony is not
believable, is her testimony Monica Thomas never told her the
season was coming to an end and if she wanted to work the
postseason to talk with Ruiz. Yet in a declaration, she claimed
she and Rosa Mireles learned separately they were laid off
while working on the line.19 She next claimed she and Rosa
Mireles went to Ruiz to determine if they were to work the next
day, which appears inconsistent. Hilda Mireles, admitted:
“What happened is that what I testified on the statement was
closer to the time and I remembered everything. Now it’s hard
for me to remember everything that happened.” She further
admitted: “Right now I don’t remember if she told me that they
had laid her off, or that she should speak to Griselda.”
Moreover, Ruiz’ testimony is inherently more probable. It
was uncontroverted that handwrappers were the most skilled
employees and there was a need for all the handwrappers who
were willing to stay. There is no evidence Respondent had re-
tained a sufficient number of handwrappers for the 1997 post-
season. Respondent’s claim all the other handwrappers who
chose to stay were retained for the postseason was unrefuted.
Hilda Mireles’ claim Ruiz’ less friendly actions toward her
after August 19, as well as her and her nephew’s rendition of
their meeting with Rupe are likewise not credited.20 Ruiz’ un-
controvected actions toward Rosa Mireles during a class at the
local college belie any claimed hostility toward Rosa and Hilda
Mireles.

g:

19 There is no corroborating evidence Rosa and Hilda Mireles or any
other employee was laid off by Monica Thomas on August 19 or any
other date.
20 Hilda Mireles testified that after Rupe gave her the receipt for the
money for the car repair repayment “I thanked him, but I also told my
nephew to tell him that it was unjust that Griselda would have told me
to leave. If he remembered the day that my sister had talked to him . . .
I told him that I was thinking that Gciselda had told me to leave or to
go away because of that, or because I had participated in that conversa-
tion.” Rupe replied: “. . . that Gciselda was—would decided who would
leave and who would stay.” Her nephew embellished his version,
testifyin
My aunt told—my aunt told me to tell Bob that when my mom went
to tell Griselda that they weren’t paying her the money they had to pay
her, my mom told her, and then Gciselda said why was she the only
one. Then my aunt, my Aunt Hilda, came in and said that she wasn’t
the only one, that other people were just scared to complain.
In sum, I find counsel for the Acting General Counsel and
the Charging Party failed to present a prime facie showing suf-
ficient to support the inference Rosa and Hilda Mireles’ en-
gaged in concerted protected activities. If it is assumed, ar-
guendo, they engaged in concerted protected activity, counsel
for the Acting General Counsel and the Charging Party failed to
establish such activity was a motivating factor in the Respon-
dent’s actions. They have failed to convincingly establish Rosa
and Hilda Mireles were laid off. I therefore recommend the
complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent did not violate Section 8(a)(1) of the Act
as alleged in the complaint.
ORDER21
It having been found and concluded the Respondent has not
engaged in the unfair labor practices alleged in the complaint
here, the complaint is dismissed in its entirety.

Q. So did you tell Bob all that?
A. Yes.
Q. And what was the next thing that was said after that?
A. Bob said he didn’t know—he didn’t know why they laid
off my Aunt Hilda if the problem was with my mom.
Hilda Mireles did not claim she told Rupe others had complaints but
were afraid to lodge them. Francisco Mireles appeared to be trying to
present the version most favorable to his aunt and mother and thus his
testimony is not credited.
21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.