Central Valley Meat Co.

National Labor Relations Board - Board Decisions

Apr 28, 2006

346 N.L.R.B. 1078 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 94
1078
Central Valley Meat Co. and United Farm Workers
of America.1 Cases 32–CA–17951, 32–CA–18099,
and 32–CA–18462
April 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On October 16, 2001, Administrative Law Judge John
J. McCarrick issued the attached decision. The Respon-
dent filed exceptions, a supporting brief, and a brief in
response to the General Counsel’s and the Union’s cross-
exceptions. The General Counsel and the Union each
filed cross-exceptions and supporting 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 record in
light of the exceptions and briefs, and has decided to
adopt the judge’s rulings, findings2 and conclusions as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.
We agree with the judge’s findings and conclusions
regarding most of the issues presented in this case. Be-
cause of our disposition of these issues, we find it unnec-
essary to rule on some of the judge’s findings.
I. BACKGROUND
Central Valley Meat Co. (the Respondent) operates a
slaughterhouse in Hanford, California, employing ap-
proximately 260 employees. In November 1999, the
United Farm Workers of America (the Union) began
organizing the Respondent’s kill floor and boning de-
partment employees after kill floor employee Jose
Sandoval contacted the Union.
II. PREVENTING SANDOVAL FROM WAITING IN
PARKING LOT
In February 2000, Sandoval was waiting in the Re-
spondent’s parking lot, after his shift, for another em-
ployee to give him a ride home. The Respondent’s secu-
rity guard told Sandoval that he had to leave because he
was talking to employees as they left the plant.
We adopt the judge’s finding that the Respondent’s re-
fusal to permit Sandoval to wait in its parking lot vio-

1 We have amended the caption to reflect the disaffiliation of the
United Farm Workers of America from the AFL–CIO effective January
4, 2006.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 carefully examined the record and find no
basis for reversing the findings.
lated Section 8(a)(1) of the Act. We base our finding on
the disparate treatment of Sandoval, a known union sup-
porter, compared to other employees. The evidence indi-
cates that other employees were routinely permitted to
wait in the Respondent’s parking lot. Given our finding
that the Respondent’s no-access policy was discriminato-
rily applied, we find it unnecessary to reach the judge’s
finding that the policy itself violated Section 8(a)(1) of
the Act.
Events of April 12, 2001
III. DISCHARGE OF SANDOVAL
Sandoval worked as the “cow knocker” on the kill
floor.3 He was required to “knock” the first cow at 7:10
a.m., which was his official starting time. In order to
“knock” the first cow at this time, Sandoval had to punch
in and begin his preparations 10–20 minutes earlier. He
was not paid for this preparatory time.
The Respondent’s practice of not paying employees
for their preparatory time became an issue among the
employees.4 On April 8, Sandoval protested to Kill Floor
Supervisor Angel Torres that he was not being paid prop-
erly, and requested a copy of his timecard. At a union
meeting on April 11, Sandoval told the other employees
that he was not being paid properly, i.e., for his necessary
prep time before taking his place on the kill floor, and
showed them his timecard. Other employees also com-
plained that they were not being paid for all the time that
they worked. The employees agreed that they would
support Sandoval in this matter.
The next day, April 12, Sandoval did not punch in un-
til 7:10 a.m., and did not “knock” the first cow until 7:13.
Shortly thereafter, Kill Floor Supervisor Angel Torres
came to Sandoval’s workstation and told him that he was
fired for reporting to his workstation late. Sandoval
showed Torres his timecard and asserted that his official
starting time was 7:10 a.m., and that he was not required
to punch in until then. Torres reiterated that Sandoval
was fired. Sandoval left his workstation and told em-
ployee David Vasquez, “Support me. Get justice. Let’s
go.” Sandoval and Vasquez then walked through the
plant, getting other employees to stop work and join their
protest of Sandoval’s discharge. Torres confronted

3 The “knocker” uses a device to stun each cow as it comes into the
slaughterhouse.
4 On August 11, eight employees, including Sandoval, Roberto
Rivera, and Oscar Diaz filed a State lawsuit alleging that the Respon-
dent required employees to work off the clock without pay. The record
before us does not reflect the disposition of that case.
CENTRAL VALLEY MEAT CO. 1079
Sandoval, told him to get out, and told Vasquez that he
was also fired.5
We agree with the judge’s finding that Sandoval’s dis-
charge violated Section 8(a)(3) of the Act. The General
Counsel established the necessary elements of union ac-
tivity, knowledge, and animus toward employees’ union
activities. We do not find persuasive the Respondent’s
claim that it terminated Sandoval for holding up the start
of production by 3 minutes, given that no other employee
had ever been discharged for a similar infraction. Con-
sequently, we find that Sandoval was discharged in re-
taliation for his union activities, in violation of Section
8(a)(3). Given that it would not affect the remedy, we
find it unnecessary to reach the issue of whether the dis-
charge independently violated Section 8(a)(1).
IV. THREATS TO DISCHARGE KILL FLOOR AND
BONING ROOM EMPLOYEES
As the kill floor employees were walking out of the fa-
cility in support of Sandoval on April 12, Torres yelled at
them that if they walked out the door, they would be
fired. After the employees had left, Torres told Vasquez
that he was “taking names and you are all fired.”
We agree with the judge that these statements violated
Section 8(a)(1) of the Act, as they were directed at the
employees’ protected activity.
We also adopt the judge’s conclusion that Steve
Coehlo’s statements to the boning room employees after
the kill floor employees walked out violated Section
8(a)(1) of the Act.6 Coehlo told the employees that the
kill floor employees who walked out had been fired, and
that any of the boning room employees who walked out
would also lose their jobs. He also stated that he had
plenty of people to replace any employees who walked
out, and that he did not care if they left. We find these
statements to be clear threats of discharge in retaliation
for employees’ protected activity.
V. DISCHARGE OF KILL FLOOR AND BONING
ROOM EMPLOYEES
We agree with the judge that the Respondent’s dis-
charge of the kill floor and boning room employees who
walked out in protest of Sandoval’s discharge on April
12, including Vasquez, violated Section 8(a)(1) of the
Act. The employees in question were discharged in re-
taliation for their protected concerted activity. Because
an 8(a)(3) finding would not add to the substantive rem-

5 Vasquez’ discharge was not alleged as a separate violation. He is,
however, included in the group of employees allegedly discharged for
their walkout in protest of Sandoval’s discharge.
6 Chairman Battista finds it unnecessary to pass on this allegation
because it is cumulative of other violations found and would not affect
the remedy.
edy, we find it unnecessary to reach the issue of whether
the discharges also violated Section 8(a)(3).7
VI. DISCHARGE OF RIVERA
We adopt the judge’s finding that the discharge of
Roberto Rivera violated Section 8(a)(1) and (3) of the
Act. Rivera was a known union activist, and the Re-
spondent had animus toward this activity. Although
Rivera was allegedly discharged for failure to sanitize his
cutting tools, numerous other employees received only
written warnings for sanitation violations and were not
discharged. In contrast, Rivera was discharged after re-
ceiving only verbal warnings. We agree with the judge
that this disparate treatment indicates a discriminatory
motive. The Respondent has not demonstrated that it
would have discharged Rivera, absent his union activity.
VII. DIAZ’ SCHEDULE CHANGE
Oscar Diaz worked as the tripe washer in the offal de-
partment. He attended union meetings, passed out au-
thorization cards, and participated in the April 12 walk-
out. He was also one of the named plaintiffs in the State
lawsuit mentioned in footnote 4, supra. On October 4,
2000, Diaz’ start time was changed from 7:30 to 9:30
a.m. Varela told Diaz that his hours had been changed
because he threw away a bucket of tracheas.
We agree with the judge that the General Counsel
failed to meet his initial burden to establish that Oscar
Diaz’ schedule was changed for discriminatory reasons.
Although Diaz engaged in union activity, that union ac-
tivity ceased 6 months before the schedule change. We
see an insufficient connection between this activity and
the schedule change.8
VIII. THE 8(A)(1) THREATS
We adopt the judge’s findings regarding the alleged
threats to various employees made in violation of Section
8(a)(1), as detailed below.9

7 In addition, given that it would not affect the remedy, we find it
unnecessary to decide whether the strike was an economic or unfair
labor practice strike, or to consider the validity of the Union’s subse-
quent offer to return to work.
8 The complaint does not allege that his participation in the State
lawsuit was Sec. 7 activity for which a discharge might independently
violate Sec. 8(a)(1).
9 Regarding Boning Room Supervisor Fernando Fitchett’s state-
ments to employee Florentino Aguilar on April 15, we adopt the
judge’s finding that these statements violated Sec. 8(a)(1) of the Act.
The credited testimony establishes that these statements were made.
We adopt the judge’s finding that the statements created an impression
of futility. Chairman Battista notes that the Respondent has not con-
tended that Fitchett’s statements were protected under Sec. 8(c) of the
Act. Contrary to his colleagues, Member Schaumber would reverse,
finding instead that this violation is not supported by substantial record
evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1080
Varela’s Conversation with Vasquez
In March 2000, Offal Department Foreman Luis
Varela asked union supporter David Vasquez: “How are
your meetings? Where are they held at? What do they
talk about?” Varela said that if the employees had a par-
ticular issue that they were dealing with, and if it was
money they wanted, all they had to do was come to him
and tell him of their needs, and he would go to the office
and take care of it for them.
We adopt the judge’s finding that Varela’s remarks
constituted interrogation and a promise to remedy em-
ployee grievances, and that Varela’s question about how
the meetings were going reasonably created the impres-
sion of surveillance.10 Although Vasquez was an open
union supporter and his sentiments regarding the Union
were known, Varela’s questions about the subject matter
of union meetings reasonably created the impression that
the employees’ union activities were being watched. As
the Board has stated, “[t]he Board does not require em-
ployees to attempt to keep their activities secret before an
employer can be found to have created an unlawful im-
pression of surveillance.” United Charter Service, 306
NLRB 150, 151 (1992). Consequently, we find that
Varela’s remarks violated Section 8(a)(1) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Central Valley Meat Co., Hanford, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Disciplining, discharging, or otherwise discriminat-
ing against its employees in retaliation for their union or
protected concerted activities.
(b) Threatening its employees with discharge for en-
gaging in protected activity.
(c) Interrogating its employees about their union ac-
tivities.
(d) Threatening its employees with plant closure, loss
of jobs, discharge, or unspecified reprisals if they engage
in union or other protected activity.
(e) Soliciting grievances or promising benefits to dis-
courage union or other protected activity.

10 Member Schaumber would dismiss the allegation that Varela’s
question unlawfully created the impression of surveillance. The test for
determining whether an employer has unlawfully created an impression
of surveillance is whether, under all the relevant circumstances, reason-
able employees would assume from the statement in question that their
union or other protected activities had been placed under surveillance.
Flexsteel Industries, 311 NLRB 257 (1993). Vasquez was an open
union supporter, and Varela did not imply any covert or surreptitious
monitoring of employee activity. In this circumstance, Member
Schaumber would not find the Respondent unlawfully created the im-
pression of surveillance.
(f) Threatening its employees that support of the Union
is futile.
(g) Prohibiting employees from waiting in the com-
pany parking lot to discourage union or other protected
activity.
(h) Creating the impression that the union or other pro-
tected activities of its employees are under surveillance.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Jose Sandoval, Roberto Rivera, and any other employee
terminated for engaging in the work stoppage on April
12, 2000, full reinstatement to their former jobs, dis-
charging if necessary any replacements hired since their
terminations or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
(b) Make Jose Sandoval, Roberto Rivera, and any em-
ployee discharged for engaging in the work stoppage on
April 12, 2000, whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them in the manner set forth in the remedy section of the
judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Jose Sandoval, Roberto Rivera, and any other employee
discharged for engaging in the work stoppage on April
12, 2000, and within 3 days thereafter notify the employ-
ees in writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of the records if stored in electronic
form, necessary to analyze the amount of back pay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Hanford, California, copies of the attached
notice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 32,

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
CENTRAL VALLEY MEAT CO. 1081
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since December 1, 1999.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discipline, discharge, or otherwise dis-
criminate against our employees for supporting United
Farm Workers of America, or any other union, or for
engaging in other protected activities.
WE WILL NOT threaten our employees with discharge
for engaging in protected activity.
WE WILL NOT interrogate our employees about their
union activities.
WE WILL NOT threaten our employees with plant clo-
sure, loss of jobs, discharge, or unspecified reprisals if
they engage in union or other protected activity.
WE WILL NOT solicit grievances or promise benefits to
discourage union or other protected activity.
WE WILL NOT threaten our employees that support of
the Union is futile.
WE WILL NOT prohibit employees from waiting in our
company parking lot to discourage union or other pro-
tected activity.
WE WILL NOT create the impression that the union or
other protected activities of our employees are under
surveillance.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
order, offer Jose Sandoval, Roberto Rivera, and any
other employee terminated for engaging in the work
stoppage on April 12, 2000, full reinstatement to their
former jobs, discharging if necessary any replacements
hired since their terminations or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Jose Sandoval, Roberto Rivera, and
any employee discharged for engaging in the work stop-
page on April 12, 2000, whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against them, less any net interim earnings, plus in-
terest.
WE WILL, within 14 days from the date of the Board’s
order, remove from our files any reference to the unlaw-
ful discharges of Jose Sandoval, Roberto Rivera, and any
other employee discharged for engaging in the work
stoppage on April 12, 2000, and WE WILL, within 3 days
thereafter, notify each of them in writing that this has
been done and that the discharges will not be used
against them in any way.
CENTRAL VALLEY MEAT CO.
Michelle M. Smith, Esq., for the General Counsel.
Richard Alaniz and John F. O’Shea, Esqs. (Alaniz &
Schraeder), of Houston, Texas, for the Respondent.
Annabelle Cortez-Gonzalves, Esq., of Salinas, California, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Hanford, California, on January 23–26, April 2–6,
and June 4–6, 2001,1 upon the General Counsel’s amended
consolidated complaint that was issued on January 2, 2001, and
alleged that Respondent committed certain violations of Section

1 All dates are in 2000, unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1082
8(a)(1) and (3) of the National Labor Relations Act (the Act).
At the hearing, counsel for the General Counsel moved to
amend the complaint to add: paragraph 6(e) alleging that Re-
spondent through Lawrence Coelho, on February 16, 2000,
threatened to close the plant; paragraph 6(f) alleging that in
March 2000, Respondent through Louis Varela, interrogated
employees about union activities, created the impression that
employees’ union activities were under surveillance and solic-
ited and promised to remedy grievances; paragraph 6(g) alleg-
ing that on or about April 12, 2000, through Steve Coelho and
Fernando Fitchett, threatened boning room employees with job
loss if they participated in protected concerted activities includ-
ing an unfair labor practice strike; paragraph 6(h) alleging on or
about April 12, 2000, through Angel Torres, threatened em-
ployees with unspecified reprisals because the employees en-
gaged in protected concerted activities; and paragraph 6(i) al-
leging on a date in April 2000, through Fernando Fitchett, im-
pliedly threatened employees that they would not be recalled to
work if they continued to participate in protected concerted
activities and told employees it would be futile to support the
Union. Respondent opposed the amendments.
At the hearing I granted counsel for the General Counsel’s
motion to amend the complaint. Under Section 102.17 of the
Board’s Rules and Regulations complaint amendments may be
permitted “upon such terms as may be deemed just.” The
amendments were related to the extant allegations of the com-
plaint and were made sufficiently early in the trial to allow
Respondent ample time to adduce evidence to rebut the allega-
tions. Respondent filed a timely answer denying these allega-
tions.
In her posthearing brief, counsel for the General Counsel
seeks to amend the complaint to add additional allegations of
8(a)(1) conduct by Respondent. Counsel for the General Coun-
sel alleges that on or about April 12 Respondent, through Steve
Coelho, told employees that they should have resolved their
dispute one-on-one with Respondent and that he failed to ex-
plain employees’ recall rights. Counsel for the General Coun-
sel argues these matters were fully litigated, therefore, the
amendments should be permitted. Respondent opposes the
amendments.
With respect to these amendments, I find that they were not
fully litigated. There are no similar allegations in the complaint
as amended and they come at a time when Respondent cannot
rebut the allegations. Further, the predicate testimony for this
allegation did not come from Respondent. I find, in the cir-
cumstances of this case, it would not be “just” to allow the
posthearing amendments. Sheet Metal Workers Local 91
(Schebler Co.), 294 NLRB 766, 774–775 (1989).
Respondent denied it committed any violations of the Act.
Upon the record as a whole, including my observations of
the witnesses, briefs, and arguments of counsel, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California corporation engaged in the
slaughter and processing of cattle at its facility in Hanford,
California, where it annually sold and shipped meat products
valued in excess of $50,000 directly to customers outside the
State of California. The Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the United Farm
Worker’s of America, AFL–CIO (the Union) is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ISSUES
There are many issues to resolve in this case including:
1. Was Jose Sandoval engaged in protected concerted and/or
union activity when he refused to punch in until 7:10 a.m. on
April 12?
2. Did Respondent violate Section 8(a)(1) and (3) of the Act
in terminating/suspending Sandoval?
3. Was the work stoppage by kill floor and boning room em-
ployees an unfair labor practice strike?
4. Did Respondent violate Section 8(a)(1) and (3) of the Act
by discharging the striking employees on April 12?
5. Did Respondent repudiate any unfair labor practices that
may have occurred on April 12?
6. Did the striking employees make an unconditional offer to
return to work?
7. Did Respondent violate Section 8(a)(1) and (3) of the Act
by refusing to reinstate the striking employees?
8. Did Respondent violate Section 8(a)(1) and (3) of the Act
by terminating Roberto Rivera?
9. Did Respondent violate Section 8(a)(1) and (3) of the Act
by changing the schedule of Oscar Diaz?
10. Did Respondent violate Section 8(a)(1) of the Act by:
(a) Interrogating its employees about their union activity.
(b) Creating the impression of surveillance.
(c) Threatening its employees with termination, unspecified
reprisals, and plant closure for engaging in union and/or pro-
tected concerted activity.
(d) Promising benefits and soliciting grievances.
(e) Threatening that employees would not be recalled.
(f) Prohibiting employees from waiting on the parking lot.
(g) Stating it would be futile to support the Union.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent’s business
Respondent operates a slaughterhouse and employs about
260 employees who kill, dismember, and process cattle into
meat and meat by-products. The meat is sold to companies that
make hamburger for COSTCO warehouse stores, In ‘N Out
Burger, Jack in the Box, and Burger King fast food restaurants.
It should be noted that many of Respondent’s employees speak
only Spanish and that while some employees speak some Eng-
lish, their primary spoken language is Spanish. Respondent is
owned and operated by the Coelho family. Lawrence Coelho
(L. Coelho) is Respondent’s president. His sons Brian (B.
Coelho) and Stephen (S. Coelho) are Respondent’s plant man-
ager and assistant plant manager. Until about early 2000 Neil
Jones (N. Jones) was Respondent’s assistant plant manager and
supervisor of quality control. I find that N. Jones was a super-
visor within the meaning of Section 2(11) of the Act and an
CENTRAL VALLEY MEAT CO. 1083
agent of Respondent within the meaning of Section 2(13) of the
Act. Kevin Arnett (Arnett) is Respondent’s office manager.
Respondent’s operation is divided into two primary areas,
the kill floor and the boning room. Approximately 85 employ-
ees in the kill floor slaughter and process 500–600 cows a day.
About 120–130 employees in the boning room cut the cattle
carcasses into portions according to customers’ requirements.
In addition, there are about 15 employees in sanitation or clean
up, 10–12 maintenance employees, 7 employees in quality
control, 3 sales employees, and 5 or 6 buyers. B. Coelho man-
ages Respondent’s facility and S. Coelho oversees day-to-day
plant operations in both the kill floor and boning room. Angel
Torres (Torres) is the supervisor in the kill floor. The kill floor
is further divided into an offal department that consists of 25–
30 employees who report to Foreman Luis Varela (Varela).
The boning room employees are supervised by Fernando Fitch-
ett. Jesus (Chuy) Lopez is a supervisor of about 20 employees
in the grinding room.
In Respondent’s slaughterhouse, cattle are moved from hold-
ing pens outside the kill floor into a pen called the knock box.
Once in the knock box, the cow is stunned unconscious by an
employee called the knocker. The stunned cow rolls into the
pit area where it is shackled to a chain and hung by its rear leg.
In the pit, the cow’s throat is slit and it bleeds to death. There,
the two front hooves are removed as is the udder. The cow
next moves to the high bench, sometimes referred to in the
record as the “hide bench.” The high bench is literally an ele-
vated platform where the cow’s hide is removed and it is dis-
sected. Here, butchers remove the hide, the legs, hooves, and
open the cow’s belly. The viscera of the cow’s belly goes to
the gutting table where these organs are cut into individual
parts. The viscera and nonedible parts of the cow are processed
by the offal department employees. The cow’s carcass is cut
into halves and washed before going to coolers where the meat
hangs overnight. The next day the meat is brought into the
boning room where it is trimmed by butchers into various cuts
according to customers’ orders.
2. The union organizing campaign
What occurred in the course of this case is the subject of
considerable dispute. I have carefully considered the testimony
of each witness and the probabilities as to what actually oc-
curred. To the extent any witness’ testimony is inconsistent
with the facts I have found below, they are not credited. Among
the factors I have considered in making my credibility findings
are the general consistency of the stories told by Jose Sandoval
and David Vasquez. Respondent contends that Sandoval and
Vasquez told conflicting stories. The record does not support
this allegation. In the context of a heated argument and walk-
out, I would expect variations in what witnesses observed.
Sandoval and Vasquez’ testimony is not cloned. While each
man made statements the other did not, there were no contra-
dictions in their testimony. Respondent misstates Vasquez’
testimony about when an argument between Torres and
Sandoval occurred on April 12. It is clear from Vasquez’ tes-
timony that he was not sure when this conversation took place.
Vasquez testified in response to leading questions from Re-
spondent’s counsel:
Q. And I believe you testified yesterday that this oc-
curred approximately an hour, an hour and a half after
your shift started, which would make it approximately
8:15, 8:45, is that correct?
A. Around there. I didn’t really look at the time, but I
would say somewhere around there. Probably before,
somewhere like that.
Respondent also misstates Vasquez and Sandovals’ testi-
mony concerning who Sandoval spoke with after the walkout
on April 12 outside the building. Respondent represents that
Vasquez testified Sandoval spoke only to S. Coelho in the
break area outside the kill floor while Sandoval testified that he
spoke only with B. Coelho. In fact, the record reveals Vasquez
testified Sandoval spoke with S. Coelho and that Vasquez was
never asked by Respondent on cross-examination if B. Coelho
spoke with Sandoval. (Tr. 392–395.) Sandoval testified that S.
Coelho spoke to him and 20 to 30 employees in the break area
outside the kill floor and later he spoke with B. Coelho in the
truck washing area. (Tr. 553–554, 562–563.)
There is a “ring of truth” to Sandoval and Vasquez’ testi-
mony in the context in which it occurred. Their stories unfold
in the heat of an organizing campaign in which Respondent
concedes it expected a strike to occur. Their accounts take
place in a slaughterhouse peopled by men used to gore, blood
and profanity. The heated exchanges, filled with profanity
described by the General Counsel’s witnesses are more believ-
able than the calm, sanitized versions described by Respon-
dent’s witnesses, particularly Torres. Torres’ testimony was
particularly unbelievable. He denied that he reported
Sandoval’s union activity to management yet B. Coelho testi-
fied that he learned of employees’ union activity from Torres.
He denied that he swore at his employees but the testimony of
other employees is replete with Torres’ profanity. Jesus (Chuy)
Lopez, Respondent’s boning room supervisor, was a reluctant
witness who had to be prodded to give a complete answer con-
cerning what he said to employees as translator for S. Coelho.
It should also be noted that the Coelhos relied on supervisors to
translate their statements into Spanish. There is no doubt that
the legal distinction between hiring permanent replacements for
striking employees and being fired may have gotten lost in the
translations
In November 1999, the Union began organizing Respon-
dent’s kill floor and boning department employees after Jose
Sandoval (Sandoval), a kill floor employee, contacted the Un-
ion. Sandoval passed out authorization cards and spoke to Re-
spondent’s employees both at work and in the company parking
lot.
In late 1999,2 Sandoval met with B. Coelho, S. Coelho, and
N. Jones in Respondent’s office. At the meeting Sandoval
complained about malfunctioning toilets at Respondent’s facil-
ity. In response to Sandoval’s complaints about working condi-
tions, S. Coelho told Sandoval, “I’m tired to [sic] hear this shit
here, and if you keep on agitating the people I’m going to fire

2 Although Sandoval testified that this conversation occurred in early
2000, it had to occur in late 1999 since S. Coelho took a leave of ab-
sence from January through mid-March 2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1084
you and a few other people over there on the kill floor.”3 Later,
Sandoval wrote a note in Spanish to B. Coelho dated January
24. In the note Sandoval stated that he was organizing his co-
workers to improve working conditions. Also in January,
Sandoval said, in the presence of Luis Varela, it was time the
employees, “called the Union for all the abuses or mistreat-
ments we have gotten from the company or management.”
In February 2000, Sandoval was waiting in Respondent’s
parking lot for another employee to give him a ride home. Re-
spondent’s security guard, Curtis Phelps (Phelps), told
Sandoval that he had to leave because he was talking to em-
ployees as they were leaving the plant. Curtis said N. Jones
told him that employees could not be waiting on the parking
lot.
From late 1999 until April 12, union meetings were held
every Tuesday and Thursday evening. Employees discussed
issues involving wages, hours, and other terms and conditions
of employment at these meetings. The employees who had
been attending the organizing meetings appointed a committee
of five employees, Santiago Perez, Florentino Aguilar,
Sandoval, David Vasquez (Vasquez), and Jesus Rivera, to rep-
resent them in a meeting with Respondent.
On February 15 the committee met with B. Coelho and Ar-
nett at Respondent’s facility. The employees read a list of de-
mands including, respect and dignity from supervisors and
foremen, improvement of working conditions and recognition
of the Union as their representative. While Respondent denies
union recognition was mentioned at this meeting, the letter of
February 16 the Union sent to Respondent signed by the five
employees who attended the February 15 meeting removes any
doubt that the Union made a demand for recognition.
On February 16, L Coelho held meetings with the kill floor
and boning room employees to discuss sanitation. L. Coelho
told kill floor employees through translator Torres that if they
were not satisfied with working conditions he could close down
the plant. He stated he had a lot of money to survive and em-
ployees would be fired. L. Coelho told boning room employees
through translator Fitchett that he had a lot of money and he
could close the plant and move away any time he wanted.4
In March, at the high bench Varela asked Vasquez, “How are
your meetings? Where are they held at? What do they talk
about? If we had a particular issue that we deal with, if it was
money that we wanted. If it was, all we had to do is come to
him and tell him of our needs, and he’ll go to the office and
he’ll take care of it for us.”
On April 8, Sandoval told Torres he was not being paid
properly and requested a copy of his punchcard. The punch-
card shows the employee’s starting time and the time they
punch in and out. On April 10, Torres gave Sandoval the
punchcard. At the union meeting on April 11, Sandoval told
fellow employees and the union representatives that the punch-

3 S. Coelho denied this conversation. For the reasons set forth,
above, I credit Sandoval.
4 L. Coelho’s English language speeches were translated by his bi-
lingual supervisors into Spanish. I credit the testimony of General
Counsel’s Spanish-speaking witnesses who testified that the Spanish
language translations of Coelho’s speeches occurred as set forth above.
card reflected he was not being paid for all of the time he
worked. Sandoval’s complaint was that in order to kill (knock)
the first cow at his starting time of 7:10 a.m. he had to punch in
several minutes earlier in order to get ready for work. He was
not being paid for the time needed to prepare. Other employees
at the meeting also complained that they were not being paid
for all the time that they worked.5 The employees agreed that
they would support Sandoval in his dispute with Respondent.
B. The Events of April 12
On April 12, Sandoval, the cow knocker on the kill floor, did
not punch in until 7:10 a.m. in protest of Respondent’s pay
policy. He did not kill the first cow until about 7:13 a.m. Tor-
res came to Sandoval’s workstation between 7:15 and 7:20 a.m.
and told him, “You came to your station late. You’re fired.”6
Sandoval had his punchcard in his hand and said it did not re-
quire him to punch in until 7:10 a.m. Torres responded, “I
don’t give a shit what the paper says. You’re fired.” Sandoval
left his workstation and spoke with Vasquez. Sandoval said,
“Support me. Get justice. Let’s go.” Sandoval, Vasquez, and
other employees on the kill floor stopped work. Torres con-
fronted Sandoval on the kill floor and said, “Get the fuck out of
here or I’ll fuck you up.” Torres then turned to Vasquez, who
had left his workstation to join Sandoval and said, “You’re
fired too.” Torres told the employees who had stopped work
that if they left they would be fired. Sandoval and about 30
other employees on the kill floor then went outside the build-
ing. A short time later S. Coelho arrived outside the kill floor.
S. Coelho through Torres told the employees who had stopped
work to get the fuck out; they would never need them again.
Torres, translating for S. Coelho, said, “You are fired. If you
do not want to work, I have plenty of beef packers I can bring
in. This is my property. Get out.” Torres later told Vasquez
that he was, “taking names and you all are fired.” This is not
inconsistent with the testimony given by the Coelhos. L.
Coelho admitted that on the morning of April 12 he told em-
ployees he could hire permanent replacements. B. Coelho told
employees at meetings later in the day on April 12 in both the
kill floor and in the boning room that replacements could be
hired if they chose to join the strike. Interpreters translated the
Coelhos’ statements into Spanish for the employees, no doubt
translating permanent replacement as “fired.” (See fn. 4, supra.)
After the kill floor employees left Respondent’s facility, S.
Coelho held a meeting with the boning room employees with
Boning Room Supervisor Fitchett translating. S. Coelho said
the kill floor employees, “. . . had every right to walk out. And
he had the right to replace them with new people. And that if
any of us were planning to walk out and join them, that we
should think about our jobs and our families. Because if we
walked out, we might lose our jobs, too.” After speaking with
the striking employees the boning room employees again met
with S. Coelho. This time employee Sylvia Guereca translated.
Santiago Carranza, a boning room employee, asked S. Coelho

5 On August 11, eight employees, including Sandoval, Roberto
Rivera, and Oscar Diaz filed a lawsuit in the Superior Court of the State
of California for the County of Kings alleging, inter alia, that Respon-
dent has required employees to work off the clock without pay.
6 Both Sandoval and Torres are bilingual in Spanish and English.
CENTRAL VALLEY MEAT CO. 1085
to allow the kill floor employees to return to work. S. Coelho
replied, “No, that those people were fired and that they no
longer had a job in the company.” Coelho repeated, “. . . to
take care of our jobs and to think about our families, and who-
ever walked out would also lose their jobs.” Coelho also said,
“. . . he had a lot of people, enough people in Fresno to substi-
tute each and every one of us, replace each and every one of us.
And that he didn’t care if we—if we left.” Around 11 a.m.,
about 20–30 boning room employees decided to walk out in
support of the kill floor employees. Fitchett spoke to the bon-
ing room employees before they walked off. Consistent with
his earlier translation for S. Coelho he said, “Don’t walk out.
Don’t be fools. If you walk out you will lose your jobs. The
company can hire more people.” Fitchett was not called as a
witness.
C. The Offer to Return to Work
On April 12, Respondent began hiring permanent replace-
ments for the striking kill floor and boning room employees.
About 30 replacements were hired on April 12 and another 15–
20 permanent replacements were hired on April 13. After Re-
spondent began hiring replacements, in the afternoon of April
12 the Union made an unconditional offer to return to work on
behalf of the striking workers. In an effort to return to work, at
about 4:30 a.m. on April 13 the striking employees gathered at
Respondent’s plant gate. The waiting employees were ad-
dressed by S. Coelho through interpreter Jesus Lopez (Chuy), a
supervisor in the boning room. S. Coelho told the employees
that they had been fired and to get off the property or he would
call the police.7 Later, Chuy went out to the picket line to bring
employee Mujia in to work but Chuy was told by a union offi-
cial that, “Mujia could not come back to work unless everyone
came back to work.” Later on April 13, Respondent sent a
letter to the Union that stated it did not believe the Union’s
unconditional offer to return to work was made in good faith
and it would continue to hire permanent replacements for those
employees who walked off the job.
Several strikers called Respondent’s office on April 13 and
were told to call back the next day. Later on April 13, S.
Coelho gave a union official on the picket line a list of employ-
ees who could return to work. On April 14 and 15, a number of
striking employees were returned to work from the picket line.
Those employees who did not return to work on April 13 or 14
received letters from Respondent indicating that they had been
permanently replaced as economic strikers and had been placed
on a preferential hiring list. On May 2, strikers received a letter
from Respondent indicating that there were jobs available.
While many of the strikers have been returned to work, many
returned to lower paying positions.
D. The Discharge of Roberto Rivera
Rivera worked for Respondent for over 13 years as a butcher
on the kill floor, primarily on the high bench or in the pit.
Rivera is Sandoval’s nephew. Rivera attended many union

7 I credit the testimony of General Counsel’s witnesses regarding
this conversation. Chuy was a reluctant witness. I had to prod him to
answer counsel for the General Counsel’s questions on cross-
examination concerning this conversation. See Tr. 1140.
meetings in the period before April 12. He also passed out
union authorization cards in the Respondent’s parking lot. On
April 12, Rivera was working on the high bench and went on
strike along with other kill floor employees the morning of
April 12. Rivera returned to work on about April 15 and con-
tinued to work on the high bench or in the pit. Rivera was sus-
pended on May 25 for poor work attendance and was told that
further discipline could result in his termination. On August
11, Rivera and other employees filed a wage and hour lawsuit
against Respondent in State Court. (See fn. 5.)
On August 20, Torres said he observed Rivera allowing beef
carcases to touch each other on the line and verbally warned
him.8 On August 21, G. Jones and Torres saw Rivera fail to
sanitize his hock cutter9 on two different occasions and verbally
warned him twice. On August 22, while B. Coelho was prepar-
ing to suspend Rivera, S. Coelho told his brother he saw Rivera
not sanitizing his knife. Respondent suspended Rivera on Au-
gust 22 for failing to sanitize his knife. A few hours after
Rivera was suspended on August 22, Varela told kill floor em-
ployee Miguel Plascencia (Plascencia), “Rivera was told to
fuck off. I would fire the whole bunch of gossip mongers. We
are going to let go the whole bunch of gossip mongers. Be
careful.” The term “gossip mongers” or “troublemakers” was a
term used by Varela to mean the Union. Respondent termi-
nated Rivera on August 25 for failing to follow sanitary proce-
dures on August 22 and on prior occasions. The termination
letter stated that Rivera had been warned repeatedly about fail-
ing to follow sanitation rules.
E. Oscar Diaz’ Schedule Change
Oscar Diaz (Diaz) was the tripe washer in the offal depart-
ment for over 2 years. Diaz attended about half the union meet-
ings before April 12. He also passed out union authorization
cards and gave the signed cards he received to Sandoval. Diaz
went out on strike with other kill floor employees on April 12
and returned to work on about April 15 as the tripe washer. He
is one of the named plaintiffs in the lawsuit mention above in
footnote 5. From December 27, 1998, to October 4, 2000 Diaz’
timecards reflect he worked from 7:30 a.m. to as late as 8 p.m.
and averaged about 10–11 hours of work per day. The time-
cards show that on October 4, Diaz’ hours were changed. His
start time was moved to 9:30 a.m and Diaz’ hours worked de-
creased. Varela told Diaz that his hours were changed because
L. Coelho said Diaz had thrown away a bucket of tracheas.
Diaz denied this and Varela said, “I know but someone in the
front office accused you.” Diaz asked if he could alternate
overtime days with Gustavo and Varela said, “Don’t worry.
Wait until the problem settles down and then you can alternate
days with Gustavo as you did before to stay late.”
S. Coelho said he had set up a system of staggered hours for
tripe washers several years ago. One started 2 hours later than
the other and stayed late to finish the washing. According to
Varela, the two tripe washers were Diaz and Jose Luis Garcia
(Garcia). Garcia started at 9:30 a.m. and worked late. Diaz
started at 7:30 a.m. and finished about 2 hours before Garcia.

8 It is interesting to note that August 20 was a Sunday, a day Re-
spondent does not operate.
9 The hock cutter is a pneumatic tool used to cut off the cow’s limbs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1086
When Garcia quit, Varela had Diaz continue to start work at
7:30 a.m. and work late. The timecards reflect that Diaz
worked from 7:30 a.m. to as late as 8 p.m. since December 27,
1998. According to Respondent, Varela was supposed to have
changed Diaz’ start time to 9:30 a.m. when Garcia quit but
failed to do so. It was not until over 2 years later that Arnett
noticed Diaz was working excess overtime. On September 8,
Arnett sent a memo to B. Coelho noting Diaz was working
overtime. It was not until October that B. Coelho, with the
prodding of Arnett and L. Coelho, changed Diaz’ hours to re-
duce overtime.
Analysis and Conclusions
IV. THE 8(A)(1) ALLEGATIONS
In the complaint and the amendments to the complaint at the
hearing counsel for the General Counsel alleges that Respon-
dent committed numerous 8(a)(1) violations.
A. In October 1999, Steven Coelho Threatens Sandoval
and Others with Termination
At a meeting in late 1999, in response to Sandoval’s com-
plaints about working conditions, S. Coelho told Sandoval,
“I’m tired to [sic] hear this shit here, and if you keep on agitat-
ing the people I’m going to fire you and a few other people
over there on the kill floor.”
The basic test for a violation of Section 8(a)(1) is whether
under all the circumstances the employer's conduct reasonably
tended to restrain, coerce, or interfere with employees' rights
guaranteed by the Act. Mediplex of Danbury, 314 NLRB 470,
472 (1994). See, e.g., Sunnyside Home Care Project, 308
NLRB 346 fn. 1 (1992), citing American Freightways Co., 124
NLRB 146, 147 (1959).
A threat of termination in retaliation for engaging in pro-
tected concerted activity is the ultimate threat an employer can
convey to an employee. In this case, Coelho’s threat to
Sandoval was intended to restrain, coerce, and interfere with
Coelho’s employees’ rights and violates Section 8(a)(1) of the
Act. Bestway Trucking, Inc., 310 NLRB 651, 671 (1993).
B. In January 2000, Curtis Phelps Prohibits Sandoval
from Waiting in the Parking Lot
In February 2000, Sandoval was waiting in Respondent’s
parking lot for another employee to give him a ride home. Re-
spondent’s security guard, Curtis Phelps, told Sandoval that he
had to leave because he was talking to employees as they were
leaving the plant. Phelps said N. Jones told him that employees
could not be waiting on the parking lot. Neither Phelps nor N.
Jones testified at the hearing. However, L. Coelho said he im-
plemented the antiloitering policy in December 1999 to prevent
drinking on company premises. There is no evidence as to the
substance of the policy, to whom it applied or whether it was
ever reduced to writing. Based on Sandoval’s credited testi-
mony, I find that Phelps was acting as an agent of Respondent
within the meaning of Section 2(13) of the Act.
In TeleTech Holdings, Inc., 333 NLRB 402, 405 (2001), the
Board discussed the application of no-access rules and held:
A no-access rule for off duty employees is valid only if it lim-
its their access solely with respect to the interior of the plant
premises and other working areas; it is clearly disseminated to
all employees; and it applies to off duty employees seeking
access to the plant for any purpose and not just those employ-
ees engaging in union activity. In addition, a rule denying off-
duty employees access to parking lots, gates and other outside
non-working areas is invalid unless sufficiently justified by
business reasons. Tri County Medical Center, 222 NLRB
1089 (1979).
In this case, the no-loitering policy limited employee access
beyond the interior of the plant and working areas, was not
clearly disseminated to all employees and was only applied to
Sandoval after he began distributing union authorization cards
in the parking lot. That the rule was applied to Sandoval be-
cause of his union activity is shown in Phelps proffered reason
for denying Sandoval access to the parking lot, i.e., he could
not talk to employees as they were leaving the plant. The Re-
spondent's lack of business justification is shown by the multi-
tude of others who were allowed to remain on the parking lot
including employees, employees’ relatives and friends, and a
catering truck. I find that Respondent’s no-access rule violated
Section 8(a)(1) of the Act.
C. On February 16, L. Coelho Threatens Plant Closure
On February 16, the day after employees made a demand for
union recognition L Coelho held meetings with the kill floor
and boning room employees to discuss sanitation. L. Coelho
told kill floor employees through translator Torres that if they
were not satisfied with working conditions he could close down
the plant, he had a lot of money to survive and employees
would be fired. L. Coelho told boning room employees
through translator Fitchett that he had a lot of money, he could
close the plant and move away any time he wanted.
In NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969),
the Supreme court noted that Section 8(a)(1) prohibits em-
ployer interference, restraint, or coercion of employees in the
exercise of their rights to self-organization. An employer’s
threat to close a plant if the employees select the union as their
collective-bargaining representative is a form of threatened
reprisal and violates Section 8(a)(1) of the Act. See also Kona
60 Minute Photo, 277 NLRB 867 (1985); Sertafilm, Inc., 267
NLRB 882 (1983). In the instant case, L. Coelho through his
interpreters threatened plant closure the day after employees
demanded union recognition. The timing of this threat suggests
its purpose was to discourage employees’ union activity and
violated Section 8(a)(1) of the Act.
D. In March 2000, Varela Interrogates Vasquez
about his Union Activity, Created the Impression
of Surveillance, Solicited, and Promised to
Remedy Grievances
As a preliminary matter, I must determine if Varela is a su-
pervisor within the meaning of Section 2(11) of the Act. Coun-
sel for the General Counsel argues that Varela is a supervisor
within the meaning of Section 2(11) of the Act. Respondent
denies Varela is a supervisor.
CENTRAL VALLEY MEAT CO. 1087
1. Varela’s supervisory status
a. The law
Section 2(11) of the Act defines a supervisor as:
Any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, layoff, recall, promote, dis-
charge, assign, reward, discipline other employees, or respon-
sibly to direct them, or to adjust their grievances or effectively
recommend such action, if in connection with the foregoing
the exercise of such authority is not of merely routine or cleri-
cal nature, but requires the use of independent judgment.
Section 2(11) is to be read in the disjunctive, as possession
of any of the indicia enumerated above will establish supervi-
sory status. Chemical Solvents, Inc., 331 NLRB 706, 717
(2000); Zimmerman Plumbing & Heating Co., 325 NLRB 106,
109 (1997).
The Board has found employees with duties similar to Varela
were supervisors within the meaning of Section 2(11) of the
Act. In Donelson Packing Co., 220 NLRB 1043, 1051 (1975),
the Board found a group leader of 25 employees at a meat
packing company who transfered employees from one assigned
task to another, received calls from employees who did not or
could not report to work, regularly attended management meet-
ings, and exercised a meaningful, if not dispositive, role in the
recommendation of raises and disciplinary action was a super-
visor within the meaning of Section 2(11) of the Act. In Pack-
erland Packing Co. of Texas, 221 NLRB 1119, 1122 (1975),
the Board found an “assistant foreman,” who transferred re-
spondent’s 36 to 40 kill floor employees from job to job on the
floor; who selected and assigned kill floor employees for early
work and overtime and who used discretion in directing kill
floor employees in their daily work, a supervisor within the
meaning of Section 2(11) of the Act.
b. The analysis
Respondent contends that the only supervisor for over 80 kill
floor employees is Torres. The record reflects this is not the
case. As noted above, Varela manages 25–30 offal department
employees. He regularly assigns them work. When replace-
ments were hired on April 12 and 13, Varela assigned employ-
ees to workstations. Varela has issued employees written and
verbal reprimands. On August 21, 1998, Varela issued a writ-
ten reprimand to kill floor employee Jamie Ramirez regarding
sanitation procedures and on November 13, 2000, he issued a
written reprimand to kill floor employee Estrada for sanitation
issues. B. Coelho admitted that Varela corrected problems in
the offal area. Coelho’s admission is supported by sanitation
records that reflect Varela was told to corrrect noncompliance
with sanitation procedures. Varela also ensures that employees
clock in and out.
Like the supervisors in Donelson and Packerland, supra, I
find that Varela possesses the indicia of a supervisor within the
meaning of Section 2(11) of the Act. Varela assigns work and
he ensures compliance with sanitation and efficient production
in the offal department. In addition, he issues both verbal and
written reprimands and responsibly directs the work in the offal
department.
2. The interrogation
In March, at the high bench Varela asked Vasquez, “How are
your meetings? Where are they held at? What do they talk
about? If we had a particular issue that we deal with, if it was
money that we wanted. If it was, all we had to do is come to
him and tell him of our needs, and he’ll go to the office and
he’ll take care of it for us.”
a. The law
In Westwood Healthcare Center, 330 NLRB 935 (2000), the
Board discussed the test to determine whether interrogation is
unlawful. The Board stated in Westwood,
We agree with our dissenting colleague that the applicable test
for determining whether the questioning of an employee con-
stitutes an unlawful interrogation is the totality-of-the-
circumstances test adopted by the Board in Rossmore House,
269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Un-
ion Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), and ad-
hered to by the Board for the past 15 years. We also agree that
in analyzing alleged interrogations under the Rossmore House
test, it is appropriate to consider what have come to be known
as “the Bourne factors,” so named because they were first set
out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Those
factors are:
(1) The background, i.e. is there a history of employer
hostility and discrimination?
(2) The nature of the information sought, e.g., did the
interrogator appear to be seeking information on which to
base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he
in the company hierarchy?
(4) Place and method of interrogation, e.g. was em-
ployee called from work to the boss's office? Was there an
atmosphere of unnatural formality?
(5) Truthfulness of the reply.
In analyzing whether interrogation of employees concerning
protected concerted activity violates Section 8(a)(1) of the
Act, the Board has considered the totality of the circum-
stances. In the final analysis, our task is to determine whether
under all the circumstances the questioning at issue would
reasonably tend to coerce the employee at whom it is directed
so that he or she would feel restrained from exercising rights
protected by Section 7 of the Act. [Westwood Health Care
Center, 330 NLRB at 943. See also Rossmore House, 269
NLRB at 1178 fn 2. See Cumberland Farms, 307 NLRB
1479 (1992).]
b. The analysis
In this case, Vasquez’ supervisor in the work area sought in-
formation at the heart of the Union’s organizing campaign.
Further, Varela indicated that Respondent would remedy em-
ployee grievances. This interrogation and promise of benefits
occurred in the context of prior Respondent threats to fire em-
ployees for engaging in protected activity and threats to close
the plant in the face of an organizing campaign. Varela’s inter-
rogation, solicitation, and promise to remedy grievances vio-
lated Section 8(a)(1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1088
3. The impression of surveillance
In addition, the General Counsel contends that Varela’s
statement unlawfully created an impression of surveillance.
a. The law
The Board’s test for determining whether an employer has
created an impression of surveillance is whether the employee
would reasonably assume from the statement in question that
his union activities had been placed under surveillance. In
United Charter Service, 306 NLRB 150 (1992), the Board held:
The Board does not require employees to attempt to keep their
activities secret before an employer can be found to have cre-
ated an unlawful impression of surveillance. . . . Further, the
Board does not require that an employer’s words on their face
reveal that the employer acquired its knowledge of the em-
ployee’s activities by unlawful means. [Id. at 151.]
The Board further explained this rationale in Flexsteel Indus-
tries, 311 NLRB 257 (1993):
The idea behind finding “an impression of surveillance” as a
violation of Section 8(a)(1) of the Act is that employees
should be free to participate in union organizing campaigns
without the fear that members of management are peering
over their shoulders, taking note of who is involved in union
activities, and in what particular ways. [Id. at 257.]
b. The analysis
Varela’s question about how the meetings were going rea-
sonably created the impression that the employees’ union meet-
ings were under surveillance and violated Section 8(a)(1) of the
Act.
E. April 12—Torres Threatens Employees with
Unspecified Reprisal and Discharge if they Engage
in a Work Stoppage
As kill floor employees were walking out of the Respon-
dent’s facility, Torres yelled at employees that if they walked
through the door they would be fired. After employees had left
the kill floor and were outside the building, Torres told
Vasquez that he was, “taking names and you all are fired.” Like
the threat discussed in paragraph A, above, Torres’ statements
were intended to coerce and restrain Respondent’s employees
from engaging in union or protected concerted activity and
violated Section 8(a)(1) of the Act. Bestway Trucking, Inc.,
310 NLRB 651, 671 (1993).
F. On April 12, S. Coelho Threatens Boning Room
Employees with Discharge if they Engage in the
Work Stoppage
1. The law
Even in the context of economic strikers, the Board has
stated that an employer may not threaten strikers with job loss.
In Larson Tool & Stamping Co., 296 NLRB 895 (1989), the
Board found the following written statement violated Section
8(a)(1) of the Act:
We agree with the hearing officer that the statement in the
August 18 letter that during an economic strike “you could
LOSE YOUR JOB TO A PERMANENT REPLACE-
MENT.”
. . . may be “fairly understood as a threat of reprisal”
within the meaning of Eagle Comtronics, 263 NLRB at
515–1516 [(1982)]. A reference to loss of employment
is not consistent with Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied
397 U.S. 920 (1969)], which guarantees permanently
replaced strikers, who have made unconditional offers
to return to work, the right to full reinstatement when
positions become available, and to be placed on a pref-
erential hiring list if positions are not available. The
employer’s right to permanently replace economic
strikers does not “entail an absolute loss of employ-
ment for those striking employees who are replaced.”
Gino Morena, d/b/a Gino Morena Enterprises, 287
NLRB 1327, 1328 (1988).
The statement at issue goes significantly beyond
statements found in such cases as Eagle Comtronics, su-
pra, and John W. Galbreath & Co., 288 NLRB 876, 877
(1988). In those cases, the respective employers did not
tell employees, without any explanation, that they would
lose their jobs as a consequence of a strike or permanent
replacement. But that is expressly and unambiguously
what the Employer has done here. [Footnote omitted.]
2. The analysis
After the kill floor employees left Respondent’s facility, S.
Coelho held a meeting with the boning room employees with
Boning Room Supervisor Fitchett translating. Coelho said the
kill floor employees, “. . . had every right to walk out. And he
had the right to replace them with new people. And that if any
of us were planning to walk out and join them, that we should
think about our jobs and our families. Because if we walked
out, we might lose our jobs, too.” After speaking with the strik-
ing employees the boning room employees again met with S.
Coelho. This time employee Sylvia Guereca translated. Santi-
ago Carranza, a boning room employee, asked S. Coelho to
allow the kill floor employees to return to work. Coelho re-
plied, “No, that those people were fired and that they no longer
had a job in the company.” Coelho repeated, “. . . .to take care
of our jobs and to think about our families, and whoever
walked out would also lose their jobs.” Coelho also said, “He
had a lot of people, enough people in Fresno to substitute each
and every one of us, replace each and every one of us. And that
he didn’t care if we —if we left.”
The instant case involves not an economic strike but an un-
fair labor practice strike. Threatening unfair labor practice
strikers with job loss as a consequence of a strike or by perma-
nent replacements as was done here certainly conveys the mes-
sage that they would be terminated and violates Section 8(a)(1)
of the Act. Larson Tool & Stamping Co., supra.
G. In April, Fitchett Threatens Employees that they
Would not be Recalled to Work
In Baddour, Inc., 303 NLRB 275, 275 (1991), the Board re-
affirmed the principles set out in Larson Tool & Stamping Co:
CENTRAL VALLEY MEAT CO. 1089
The judge found and we agree that the Respondent unlawfully
threatened employees with job loss in the event of a strike.
During its campaign speeches before the second election, the
Respondent, inter alia, told employees without other explana-
tion that “union strikers can lose their jobs” and that “you
could end up losing your job by being replaced with a new
permanent worker.” The Board in Larson Tool & Stamping
Co., 296 NLRB 895 (1989), made it clear that employers
cannot tell employees without explanation that they would
lose their jobs as a consequence of a strike or permanent re-
placement. The phrase “lose your job” conveys to the ordi-
nary employee the clear message that employment will be
terminated. Further, if the employee is also told that his/her
job will be lost because of replacement by a “permanent”
worker, the message is reinforced. In these circumstances,
where the single reference to permanent replacement is cou-
pled with a threat of job loss, it is not reasonable to suppose
that the ordinary employee will interpret the words to mean
that he/she has a Laidlaw right to return to the job. [Footnote
omitted.]
On April 12, around 11 a.m. about 20–30 boning room em-
ployees decided to walk out in support of the kill floor employ-
ees. Fitchett spoke to the boning room employees before they
walked off. Consistent with his earlier translation for S. Coelho
he said, “Don’t walk out. Don’t be fools. If you walk out you
will lose your jobs. The company can hire more people.”
Like the threat of reprisals made earlier by S. Coelho dis-
cussed above, Fitchett’s statements threatened job loss to em-
ployees in the event they went on strike. Here, Fitchett repeats
S. Coelho’s threat to the boning room employees that if they
join in the work stoppage they will lose their jobs to replace-
ments. This threat to unfair labor practice strikers violates Sec-
tion 8(a)(1) of the Act.
H. On April 15, Fitchett Told Aguilar he Would not be
Recalled to Work and that it was Futile to Support
the Union
1. The law
In Reno Hilton Resort Corp., 319 NLRB 1154, 1155 (1995),
the Board found an employer memo to employees violated
Section 8(a)(1) of the Act. The memo stated, in pertinent part:
That union can’t do anything for you that you cannot do better
for yourselves. The union would not benefit you in any way
and could hurt you seriously.
In finding this statement of futility coercive the Board stated:
The Board has held that although employers’ warnings
of “serious harm” that may befall employees who choose
union representation are not unlawful in and of them-
selves, they may be unlawfully coercive if uttered in a
context of other unfair labor practices that “impart a coer-
cive overtone” to the statements. Community Cash Stores,
238 NLRB 265, 269 (1978), citing Greensboro Hosiery
Mills, 162 NLRB 1275, 1276 (1967), enf. denied in rele-
vant part 398 F.2d 414 (4th Cir. 1968). We find such a
context here. The Respondent violated the Act repeatedly.
Its unlawful acts included threatening an employee that the
hotel would close before the Union could come in, stating
that union supporters could be fired, promising to grant
benefits if the Union was rejected, threatening to withhold
or take away benefits if the Union was certified, granting
benefits during the union organizing campaign, and indi-
cating that it would reject any union demands in order to
show how “stupid” unions are. The coercive effect of
Hughes’ memo is apparent when it is read against the
backdrop of those unfair labor practices, which give both
specificity and force to Hughes’ otherwise vague asser-
tions that the Union would not benefit employees, could
hurt them seriously, and might jeopardize their jobs.
[Reno Hilton Resorts Corp., 319 NLRB at 1155.]
2. The analysis
On April 15, Aguilar went to Respondent’s facility to pick
up his paycheck where he met Fitchett. Fitchett said,
“[C]ontinue doing what Santiago (boning room employee
Santiago Carranza) said, and I could see that because of him I
didn’t have a job, and that the Union was no good and they
wouldn’t do anything for us.” Fitchett’s statement was made in
the context of other unfair labor practices that created a coer-
cive context. Like Reno Hilton, supra, Respondent herein had
made threats of termination, plant closing, and promised bene-
fits. I find that Fitchett’s statement violated Section 8(a)(1) of
the Act in stating it would be futile to support the Union and by
threatening employees they would not be recalled to work due
to union activity.
I. On August 22, Varela Threatens to Terminate
Union Supporters
A few hours after Rivera was suspended on August 22,
Varela told kill floor employee Miguel Plascencia (Plascencia),
“Rivera was told to fuck off. I would fire the whole bunch of
gossip mongers. We are going to let go the whole bunch of
gossip mongers. Be careful.”
In Monfort of Colorado, 298 NLRB 73, 84 (1990), the Board
found a similar statement violated Section 8(a)(1) of the Act
where it was clear that a reference to “troublemakers” was syn-
onymous with union activists. In this case, the evidence estab-
lishes that the Spanish term “gossip monger” or “troublemaker”
referred to union activists. The threat made to Plascencia was
intended to threaten, coerce, and restrain him in violation of
Section 8(a)(1) of the Act.
IV. THE TERMINATIONS AND SCHEDULE CHANGE
The General Counsel argues Respondent terminated
Sandoval and Rivera and changed Diaz’ work schedule because
they engaged in union and protected concerted activity.
A. The Law
1. Union activity
Section 8(a)(3) of the Act prohibits employers from dis-
criminating in regard to an employee’s, “tenure of employment
. . . to encourage or discourage membership in any labor or-
ganization.”10

10 29 U.S.C. § 158(a)(3).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1090
In 8(a)(3) cases, the employer’s motivation is frequently in
issue, therefore the Board applies a causation test to resolve
such questions. Wright Line, 251 NLRB 1083, 1088 (1980).
“The Wright Line test requires the General Counsel to make a
prima facie showing sufficient to support an inference that the
employee’s protected conduct motivated the employer’s ad-
verse action. The critical elements of discrimination cases are
protected activity by the employees known to the employer and
hostility toward the protected activity. Although not conclusive,
timing is usually a significant element in finding a prima facie
case of discrimination.” Western Plant Services, 322 NLRB
183, 194 (1996).
2. Protected concerted activity
In order to find an employee’s activities concerted they must
be engaged in with or on the authority of other employees and
not soley by and on behalf of the employee himself. The defi-
nition encompasses circumstances where an individual em-
ployee initiates or induces or prepares for group action as well
as an individual employee who brings truly group concerns to
the attention of management. In Meyers Industries, 268 NLRB
493, 497 (1984) (Meyers I), and Meyers Industries, 281 NLRB
882 (1986) (Meyers II), the Board defined when an individual
engages in concerted activity for other mutual aid or protection.
The Board in Meyers I stated,
In general, to find an employee's activity to be “concerted,”
we shall require that it be engaged in with or on the authority
of other employees, and not solely by and on behalf of the
employee himself. Once the activity is found to be concerted,
an 8(a)(1) violation will be found 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 adverse
employment action at issue (e.g., discharge) was motivated by
the employee's protected concerted activity. [Meyers Indus-
tries, 268 NLRB at 497.]
In Meyers II, the Board emphasized that its definition of
concerted activity included individual activity where, “individ-
ual employees seek to initiate or to induce or to prepare for
group action, as well as individual employees bringing truly
group complaints to the attention of management.” 281 NLRB
at 887.
Employees do not have to accept the individual’s call for
group action before the invitation itself is considered concerted.
Whittaker Corp., 289 NLRB 933, 934 (1988); El Gran Combo,
284 NLRB 1115 (1987). The Board in Meyers II held that, “the
activity of a single employee in enlisting the support of his
fellow employees for their mutual aid and protection is as much
’concerted activity’ as is ordinary group activity.” Owens-
Corning Fiberglass Corp. v. NLRB, 407 F.2d 1357, 1365 (4th
Cir. 1969).
If the General Counsel successfully presents a prima facie
case of discrimination, the burden then shifts to the employer to
persuade the trier of fact that the same adverse action would
have occurred even in the absence of the employee’s protected
activity. Western Plant Services, supra. To meet this burden,
“an employer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evidence
that the same action would have taken place even in the ab-
sence of the protected conduct.” Roure Bertrand Dupont, Inc.,
271 NLRB 443 (1984).
B. The Analysis
1. The termination of Sandoval
a. The union activity
The General Counsel has established a prima facie case that
Respondent terminated/suspended Sandoval for engaging in
union activity. Sandoval was responsible for the Union’s orga-
nizing campaign. Sandoval solicited authorization cards and
attended union meetings. In January, Sandoval told Respon-
dent in a letter he was organizing Respondent’s employees. In
February, Sandoval attended a meeting with B. Coelho where a
demand for recognition of the Union was made. Both
Sandoval’s January letter and his presence at the February
meeting put Respondent on notice of Sandoval’s union activity.
Further knowledge of Sandoval’s union activity is established
in January when Sandoval said it was time to bring in the Un-
ion in the presence of leadman Varela.11 There is ample evi-
dence of Respondent’s animus toward Sandoval’s union activi-
ties. In December 1999, after Sandoval complained about
working conditions to S. Coelho, S. Coelho told Sandoval that
if he, “continued telling people this shit and if I continue to hear
it from you and others on the kill floor, you will be fired.”
After the February 15 meeting with B. Coelho where a demand
for union recognition was made, L. Coelho called employee
meetings and threatened plant closure. In February, Sandoval
was told that he could not wait in Respondent’s parking lot
because he was talking to employees as they left work. Re-
spondent terminated Sandoval on April 12 when Torres told
Sandoval he was fired for being late. I find that the General
Counsel has established a prima facie case that Respondent
violated Section 8(a)(3) of the Act in terminating Sandoval.
b. The protected concerted activity
The General Counsel contends that Respondent also termi-
nated Sandoval for his protected concerted activity.
In the days before the walkout on April 12, Sandoval had
expressed concern to Torres that he was not being paid properly
and requested his timecard. Sandoval brought the time card to
the union meeting on April 11. He and several employees at
the meeting complained they were not being paid for all the
time they worked. The employees agreed Sandoval should
punch in at 7:10 a.m., when Respondent began paying him.
The employees further agreed they would support Sandoval if
Respondent disciplined him for punching in at 7:10 a.m. On
April 12, when Sandoval did not punch in until 7:10 a. m. and
did not arrive at his workstation until 7:13 a.m., 3 minutes late,
he was engaged in a concerted activity protected by Section 7
of the Act. Cub Branch Mining, 300 NLRB 57, 58 (1990).
Respondent was aware that Sandoval was protesting his
working conditions when Torres fired him.12 Sandoval waived

11 See sec. I,D,1 for the discussion of Varela’s supervisory status.
12 It is clear that Sandoval was not suspended but fired by Torres.
Torres did not mark the suspension box next to Sandoval’s name on the
absentee report for April 12.
CENTRAL VALLEY MEAT CO. 1091
his timecard at Torres and told him that it said he did not start
work until 7:10 a.m. Moreover, just a few days earlier
Sandoval asked Torres for a copy of his timecard because he
felt he was not being paid properly. Sandoval was protesting
not only his own conditions but he was also speaking for the
employees similarly situated who attended the April 11 uion
meeting. The ral Counsel has established a prima facie case
that Torres’ terminated Sandoval in violation of Section 8(a)(1)
of the Act.
c. Respondent’s defense
Respondent contends that even in the absence of Sandoval’s
union and protected concerted activity it would have suspended
him. Wright Line, 251 NLRB 1083 (1980). Respondent main-
tains that Sandoval was suspended solely because he delayed
the start of production by failing to report to his workstation in
a timely manner. I find this defense to be pretextual.
Sandoval was only 3 minutes late in reporting to his work-
station and there is no evidence Respondent fired another em-
ployee for such a minor infraction. Finally, there is no evi-
dence that Respondent independently investigated Sandoval’s
conduct by asking him for his side of the story. The case Re-
spondent cites in support of its defense is inapposite. In Bali
Blinds Midwest, 292 NLRB 243 (1988), the respondent termi-
nated an employee who was 1-minute late in conformance with
its established practice for probationary employees and there
was no evidence of animus directed toward the alleged dis-
criminatee. Here the record is replete with Respondent’s ani-
mus for Sandoval’s union and protected concerted activity. No
other employee was fired for reporting late. I find that by ter-
minating Sandoval Respondent has violated both Section
8(a)(1) and (3) of the Act.
2. The termination of Rivera
a. Rivera’s union and protected concerted activity
In addition to his termination on April 12 for engaging in the
concerted work stoppage, the General Counsel argues that after
his return to work on April 15 Rivera was suspended on August
22 and fired on August 25 due to his union and protected con-
certed activities. Rivera was active in the union organizing
effort. It was commonly known that Rivera is Sandoval’s
nephew. Rivera distributed union authorization cards in Re-
spondent’s parking lot and attended many union meetings after
work. He took part in the April 12 strike and was terminated
with the other striking employees. Rivera is also a named
plaintiff in the State wage and hour lawsuit filed on August 11
and served on Respondent August 17. Respondent was aware
of both Rivera’s union and protected concerted activity.
Rivera’s participation in both the strike and lawsuit is uncon-
troverted. Respondent’s knowledge of and animus toward
Rivera’s union activity is belied by supervisor Varela’s state-
ment to Miguel Plascentia on August 22 that Rivera had been
told to fuck off and he (Varela) would fire the whole bunch of
gossip mongers or troublemakers, i.e., union supporters. I find
that the General Counsel has established a prima facie case that
Respondent fired Rivera due to his union and protected con-
certed activities. Under Wright Line the burden shifts to Re-
spondent to show it would have terminated Rivera despite his
union or protected concerted activity.
b. Respondent’s defense
Respondent contends it fired Rivera, who Respondent em-
ployed for over 13 years, because he repeatedly violated Re-
spondent’s sanitation rules when he failed to sanitize his cutting
tools on August 20, 21, and 22. Respondent’s defense is pre-
textual since there is evidence of disparate treatment of Rivera
compared to similarly situated employees. The evidence of
record suggests that Respondent sporadically enforced its sani-
tation rules and only after repeated violations.
The Board and courts have long held that evidence of, “bla-
tant disparity is sufficient to support a prima facie case of dis-
crimination. Fluor Daniel, 304 NLRB 970, 970–971 (1991).
See also Great Dane Trailers, Inc., 373 U.S. 221 (1963); New
Otani Hotel & Garden, 325 NLRB 928 fn 2 (1998). Several
employees, including Rivera, Vasquez, and Plascentia, testified
that they frequently failed to sanitize their knives in the pres-
ence of supervisors and quality control employees. The em-
ployees’ testimony was corroborated by quality control super-
visor Jones. None of these employees received disciplinary
warnings prior to August 22.
Respondent’s disciplinary records reflect other employees
had more egregious rules violations than Rivera and were not
discharged. Gerardo Tabera received 21 written warnings over
a 4-year period, including 10 attendance and 8 sanitation warn-
ings but remained on the job. Respondent issued Juan Saldana
written warnings for failing to sanitize a cutting tool 3 days in a
row, for being drunk on the job, and for not washing his apron
and knife. Yet Saldana was never terminated. Manuel Amador
was repeatedly warned in writing for attendance and was writ-
ten up twice for not sanitizing a knife yet was not terminated.
Porfirio Galvan was warned in writing seven times for atten-
dance violations and three times for sanitation violations yet
remained on the job. Elenin Cortez received three written
warnings for attendance problems, one for drinking on com-
pany property and two for sanitation violations without termi-
nation. Jose Hernandez got a written warning for consistently
failing to follow sanitation procedures. Jorge Ornelas was not
fired despite refusing to follow a supervisor’s order regarding
sanitation. David Gutierrez received three written warnings for
sanitation violations without suspension or termination despite
other reprimands for drinking on company premises and being
late to his workstation. Esteban Carranza was warned in writ-
ing four times for attendance problems. Carranza was sus-
pended on November 9, 1999, for repeated sanitation violations
but despite further written warnings for sanitation violations on
November 12 and 29, 1999, and February 21, 2001, he remains
on the job. On September 7, Angel Villamil was warned in
writing for failure to sanitize his knife. On January 25, 2001,
Villamil received another written warning for sanitation viola-
tions. A third written warning was issued to Villamil on Febru-
ary 23, 2001, for a sanitation violation. Villamil was neither
suspended nor terminated.
By contrast, Rivera had received no written warnings for
sanitation violations before his suspension on August 22 and
his termination on August 25. His attendance record was no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1092
worse than those that received no discipline. That his suspen-
sion and termination came only 5 days after Respondent
learned he was a named plaintiff in a State lawsuit filed against
them and after his union and protected concerted activities
comes as no surprise. Moreover, despite the fact that Rivera
was admittedly one of their best butchers, had never received a
written sanitation warning, and had a recent work related hand
injury, Respondent fired Rivera without asking Rivera if he had
a valid reason for not following sanitation procedures. This
further suggests a discriminatory motive on Respondent’s part.
Denholme & Mohr, Inc., 292 NLRB 61, 67 (1988). I find that
Respondent fired Rivera in violation of Section 8(a)(1) and (3)
of the Act.
3. Diaz’ schedule change
The General Counsel contends that Respondent altered Diaz’
work schedule and reduced his hours on about September 17,
2000, and again on October 4, 2000, because of his union and
protected concerted activity.
Diaz’ union activity was limited to attending union meetings.
Diaz participated in the April 12 strike and he was a named
plaintiff in the State court wage and hour lawsuit filed against
Respondent on August 11.
Contrary to the General Counsel’s assertion, Diaz’ schedule
was not changed on September 17. Diaz’ timecards reflect no
change in his hours on or after September 17. However, the
time cards establish that Diaz’ hours were changed on October
4 when his starting time was moved from 7:30 to 9:30 a.m. The
effect of this change was to reduce Diaz’ workday by 2 hours.
The General Counsel has failed to establish a prima facie
case that Respondent discriminated against Diaz due to his
protected concerted or union activity. The General Counsel has
not proved the elements of knowledge, animus13 or timing in
alleging Diaz’ union activity was the cause of his schedule
change. In addition, both animus and timing are absent with
respect to Diaz’ protected concerted activity.
There is no dispute that Respondent was aware Diaz partici-
pated in the strike and was a member of the State lawsuit.
However, there is no evidence Respondent was hostile to Diaz’
union or protected concerted activity. Further, the timing of
Diaz’ schedule change suggests Respondent was not motivated
by Diaz’ union or protected concerted activity. Respondent
changed Diaz’ schedule over 6 months after his union activity,
6 months after he engaged in the strike, and 2 months after Diaz
filed the wage and hour lawsuit. Geo V. Hamilton, Inc., 289
NLRB 1335, 1340–1341 (1988) (employee’s participation on
union negotiating team found, “too remote in time to be linked
to” his layoff 11 months later); Irving Tanning Co., 273 NLRB
6, 8 (1984) (termination of known union supporter 5 months
after an unsuccessful organizing drive is insufficient affirmative
proof of unlawful motive); Qualitex, Inc., 237 NLRB 1341,
1344 (1978) (no showing that antiunion animus tainted the
discharge of an active union supporter over 4 months after the
election despite the employer’s vigorous union opposition.) In
the absence of employer knowledge of Diaz’ union activity,

13 Diaz received more overtime than most of Respondent’s employ-
ees up to October 4.
animus, or adverse timing, I find that the General Counsel has
failed to establish the Respondent changed Diaz’ schedule as a
result of his union or protected concerted activity. I will dis-
miss that portion of the complaint.
V. THE APRIL 12 WORK STOPPAGE
It has long been held if an unfair labor practice is a contribut-
ing cause of a strike, then, as a matter of law, the strike must be
considered an unfair labor practice strike. The burden is on the
Respondent to show that the strike would have occurred even if
it had not committed the unfair labor practices. Wilkie Metal
Products, Inc., 333 NLRB 603 (2001), citing Larand Leisureli-
nes, Inc. v. NLRB, 523 F.2d 814, 820 (6th Cir. 1975). After
Torres fired Sandoval, Sandoval told his coworkers he had been
fired and asked them to support him. Shortly thereafter about
15 kill floor employees walked off the job to protest Sandoval’s
termination. Later that day, after learning Sandoval and other
kill floor employees had been fired, 20–30 boning room em-
ployees also joined the strike. Sandoval’s unlawful termination
was the motivating factor behind the strike, thus, the strike was
an unfair labor practice strike from its inception.
Respondent contends that the strike was motivated solely by
economic considerations. However, there is no evidence Re-
spondent repudiated the underlying unfair labor practice
thereby converting the unfair labor practice strike to an eco-
nomic strike. Gibson Greetings, 310 NLRB 1286, 1289 (1993).
Moreover, there is no evidence that the striking employees
were motivated by anything other than Sandoval’s termination.
VI. TERMINATION OF THE KILL FLOOR AND BONING
ROOM EMPLOYEES
When the kill floor and boning room employees walked off
the job on April 12 to protest Respondent’s termination of
Sandoval, they were engaged in concerted activity protected by
Section 7 of the Act. Firing strikers engaged in protected activ-
ity violates Section 8(a)(1) of the Act. NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962); Robbins Engineering, 311
NLRB 1079 (1993); Bethany Medial Center, 328 NLRB 1094
(1999).
It is clear that Respondent fired not only Sandoval but also
the employees who walked out with him. Contemporaneous
with the work stoppage, Torres told the kill floor employees
that if they left they would be fired. S. Coelho confirmed what
Torres had said and Torres again told employees he was taking
names of employees who had walked out to make sure they
were fired. S. Coelho and Fitchett both told boning room em-
ployees they would lose their jobs if they walked off. When the
boning room employees joined the striking kill floor employees
in the afternoon on April 12, they could reasonably believe they
had been terminated for joining the strike. Ridgeway Trucking
Co., 243 NLRB 1048 (1979); Flat Dog Productions, 331
NLRB 1571 (2000). Any ambiguity created by Respondent
through use of translators or use of legal terminology must fall
on Respondent. Flat Dog Productions, supra. Respondent vio-
lated Section 8(a)(1) of the Act when it terminated its kill floor
and boning room employees engaged in the concerted work
stoppage commencing April 12.
CENTRAL VALLEY MEAT CO. 1093
The General Counsel also contends that the kill floor and
boning room employees were terminated for engaging in an
unfair labor practice strike in violation of Section 8(a)(3) of the
Act. The cases cited by counsel for the General Counsel in
support of this proposition all involve strikers engaged in union
activity. Flat Dog Productions, supra; Caterpillar, Inc., 322
NLRB 690, 694 (1996); G&C Packing Co., 298 NLRB 573,
576 (1990). Simply engaging in an unfair labor practice strike
does not confer the protection of Section 8(a)(3) of the Act.
This strike had nothing to do with employees’ union organizing
activity. In this case, the striking employees who walked out in
support of Sandoval were not at that time engaged in a union
but rather a protected concerted activity. Respondent was
clearly motivated by the strikers’ concerted activity in firing
them rather than their union activity. Respondent made no
threats or other statements that reflected antiunion animus at a
time proximate to the work stoppage. I find that the strikers
were not discharged in violation of Section 8(a)(3) of the Act
and I will dismiss that portion of the complaint.
VII. THE OFFER TO RETURN TO WORK
A. The Law
The Board has held that an employer must reinstate unfair
labor practice strikers to their former positions after they make
an unconditional offer to return to work. Boydston Electric,
Inc., 331 NLRB 194 (2000); Nichols County Health Care Cen-
ter, Inc., 331 NLRB 970 (2000); Mauka, Inc., 327 NLRB 148
(1999); Detroit Newspapers, 326 NLRB 700 (1998); Caterpil-
lar, Inc., 322 NLRB 690 (1996). However, employees dis-
charged in violation of Section 8(a)(1) or (3) of the Act have no
obligation to make an offer to return to work. The backpay
period for discharged strikers begins with the date of discharge.
There is no requirement that the discharged strikers must re-
quest reinstatement to start the back pay period. Abilities &
Goodwill Co., 241 NLRB 27 (1979); enf. denied 612 F.2d 6
(6th Cir. 1979); Lyon & Ryan Ford, 246 NLRB 1 (1979); enf.
granted 647 F.2d 745 (7th Cir. 1981); cert. denied 454 U.S. 894
(1981); Dino & Sons Realty Corp., 330 NLRB 680, 687
(2000),. In Abilities & Goodwill, Inc., supra, the Board, in
explaining why a request for reinstatement was superfluous
stated:
Indeed, such a request, in all likelihood, would fall upon deaf
ears when one considers that the employer had just fired the
employee. In this connection, the Board has frequently said
that it will not require a person to perform a futile act . . . sug-
gests the inequity of requiring discharged strikers to request
reinstatement, for the fact of discharge itself clearly impresses
upon the employees that their services are no longer desired
and that a request to return would be a useless gesture.
B. The Analysis
In this case, Respondent terminated all striking employees
and relieved them of any obligation to make an offer of rein-
statement. Moreover, the strikers, through the Union’s letter of
April 12, did offer to return to work. Respondent contends that
the offer was not unconditional but was conditioned upon the
Union’s demand of April 13 for reinstatement of all strikers.
Respondent reliance on Times Herald Printing Co., 221 NLRB
225 (1975), is misplaced since Respondent’s employees were
not economic strikers but unfair labor practice strikers, all of
whom were entitled at minimum to immediate and full rein-
statement. Since Respondent was obligated to reinstate the
strikers from the time they were terminated, ultimately it is
immaterial whether or not they made an offer to return to work.
Respondent’s obligation to reinstate and make the strikers
whole runs until they have been offered reinstatement to their
former positions.
CONCLUSIONS OF LAW
1. By terminating Jose Sandoval on April 12, 2000, by ter-
minating and refusing to reinstate the employees who engaged
in a work stoppage on April 12, 2000, and by suspend-
ing/terminating Roberto Rivera on August 25, 2000, Respon-
dent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (3) and Section 2(6)
and (7) of the Act.
2. By interrogating its employees about their union activity,
by creating the impression of surveillance, by threatening em-
ployees with termination and plant closure, by promising bene-
fits and soliciting grievances, by threatening that employees
would not be recalled to work, by prohibiting employees from
waiting on the parking lot, and by telling employees it would be
futile to support the Union, Respondent violated Section 8(a)(1)
and Section 2(6) and (7) of the Act.
3. Respondent has not otherwise violated Section 8(a)(1) and
(3) of the Act as alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement, discharging if necessary
any replacements hired since their terminations, and make them
whole for any loss of earnings and other benefits, computed on
a quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1094
Respondent shall be required to expunge any and all refer-
ences to its unlawful terminations/suspensions of Jose
Sandoval, Roberto Rivera, and any employees who engaged in
the work stoppage of April 12, 2000, from its files and notify
those employees in writing that this has been done and that
these unlawful discharges/suspensions will not be the basis for
any adverse action against them in the future. Sterling Sugars,
Inc., 261 NLRB 472 (1982).
[Recommended Order omitted from publication.]