Coastal Sunbelt Produce

National Labor Relations Board - Administrative Judge Opinions

Feb 17, 2012

05-CA-036362 (N.L.R.B. Feb. 17, 2012)

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Savage, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
COASTAL SUNBELT PRODUCE, INC.
and Cases 5-CA-36362
MAYRA L. SAGASTUME, an Individual
Table of Contents
Decision 1
Statement of the Case 1
Findings of Fact 2
I. Jurisdiction 2
II. Alleged Unfair Labor Practices 2
A. Respondent’s operations 2
B. The Union campaign 3
C. Sagastume's November 18 discharge 17
D. Events following Sagastume's November 18 termination 25
E. The testimony of Respondent's witnesses concerning 27
Sagastume's termination and the transfer of
the tomato department from CSPC to ECFC
F. Analysis 40
1. Procedural matters 40
2. Case law pertaining to alleged discriminatory conduct 42
3. The present case 43
Conclusions of Law 62
Remedy 62
Order 62
JD–11–12
Savage, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
COASTAL SUNBELT PRODUCE, INC.
and Cases 5-CA-36362
MAYRA L. SAGASTUME, an Individual
M. Anastasia Hermosillo, Esq., for the Acting General Counsel.
Kara M. Maciel, Esq., of Washington, D.C.
and Evan Rosen, Esq., of Atlanta, Ga. for the Respondent.
Mayra Sagastume of Jessup, MD., for the Charging Party.
DECISION
Statement of the Case
Eric M. Fine, Administrative Law Judge. This case was tried in Baltimore, Maryland on
July 18 to July 22, 2011. The charge was filed by Mayra L. Sagastume on January 5, 2011
against Coastal Sunbelt Produce, Inc.1 The complaint issued on March 31, 2011, as amended
at the hearing, alleges that Coastal Sunbelt Produce, Inc., (referred to herein as Respondent or
CSPC)2 through Julio Ramos on or about November 16 interrogated Sagastume by asking her
about her husband's union activities; and that on or about November 18 Respondent terminated
Sagastume because Sagastume formed, joined or assisted the Drivers, Chauffeurs and
Helpers, Local Union No. 639 a/w the International Brotherhood of Teamsters (the Union);
engaged in concerted activities; and to discourage employees from engaging in these activities
in violation of Section 8(a)(1) and (3) of the Act.3
On the entire record, including my observation of the witnesses' demeanor, and after
considering the briefs filed by the Acting General Counsel and Respondent, I make the
following:4

1 All dates are in 2010 unless otherwise indicated.
2 While the complaint names Respondent as Coastal Sunbelt Produce, Inc., Respondent
was referred to on the record by Respondent's witnesses as Coastal Sunbelt Produce Company
(CSPC). Respondent concedes in its post-hearing brief that Coastal Sunbelt Produce, Inc. is
appropriately alleged as the responsible party for Sagastume's termination.
3 The complaint asserts Sagastume was terminated because of her union activities.
However, counsel for the Acting General Counsel stated at the outset of the hearing the theory
of the complaint was Sagastume was terminated because of her husband's union activities in
violation of Section 8(a)(1) and (3) of the Act. Respondent was on notice of the Acting General
Counsel's theory, and the issue was fully litigated and briefed by the parties.
4 In making the findings, I have considered the witnesses’ demeanor, the content of their
testimony, and the inherent probabilities of the record as a whole. In certain instances, I have
credited some but not all of what a witness said. See NLRB v. Universal Camera Corporation,
Continued
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Findings of Fact
I. Jurisdiction
Respondent, a corporation, with an office and place of business in Savage, Maryland
has been engaged in the business of providing fresh produce and dairy products to restaurant
chains, independents, hotels, businesses, and food service companies throughout the east
coast. During the 12 month period prior to March 31, 2011, a representative period,
Respondent sold and shipped goods valued in excess of $50,000 to states outside of Maryland.
Respondent admits and I find it is an employer engaged in commerce under Section 2(2), (6),
and (7) of the Act and the Union is a labor organization under Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Respondent's operations
Respondent admitted at the hearing the following individuals maintain the titles next to
their names and they are supervisors and agents of Respondent: John Corso, chief executive
officer; Mike Flanagan, chief financial officer; Erin Morgan, human resources manager; and Julio
Ramos, supervisor. It was stipulated at the hearing that during the fall of 2010, Jim McWhorter
was the vice president of sales; Jason Lambros was the vice-president of purchasing; Tracy
Moore was the vice president of operations; Stalio Callas was the operations day manager;
Jennifer Caplinger was the transportation manager then became the logistics manager; Justin
Callas was the night manager; Joey Saia was the fleet manager and that all the aforementioned
were supervisors and agents of Respondent during the specified time period.
Coastal Sunbelt, Inc. (CSI) is a holding company for three operating companies. CSI
only employs executive managers. CSI is a holding company for: Coastal Sunbelt Produce
Company (CSPC), a distribution business; East Coast Fresh Cuts (ECFC), a processing and
manufacturing business; and for Coastal Sunbelt Leasing (CSL) a leasing company which
leases assets to CSPC and ECFC.5 Corso is the president and CEO of CSI and CSPC. Ross
Foca is the president and CEO of ECFC. Foca reports to Corso. Foca testified that although he
is president of ECFC, Foca is not employed by that company. Rather, Foca has been employed
by CSI. Foca's pay check is from CSI, but the money comes from ECFC since CSI has no
revenue.6 ECFC employees receive their pay checks from ECFC. Foca testified the money he
is paid is allocated to the operating company which is ECFC. Foca's benefits and taxes are
allocated to ECFC. Foca testified that all the individuals reporting to him work for ECFC, except
for Zeleznik, who is also employed and paid by CSI. Zeleznik's pay is allocated to ECFC.
_________________________
179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474 (1951). All testimony and
evidence has been considered. If certain testimony or evidence is not mentioned it is because it
is cumulative of the credited evidence, not credited, or not essential to the findings herein.
Further discussion of the witnesses’ credibility is set forth below.
5 As set forth above, CSPC is alleged in the complaint as Coastal Sunbelt Produce, Inc.
6 Corso; Dave Zeleznik, the general manager and vice president of ECFC; Tracy Moore,
vice president of operations of CSPC; Jason Lambros, vice president of purchasing for CSPC;
and Mike Flanagan, the chief financial officer for CSPC and ECFC, among some others, are
also employed and paid by CSI.
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Corso testified ECFC and CSPC are different businesses. ECFC is a manufacturing
company, which means it changes the function of its product. CSPC is a distribution company.
It receives products and then redistributes them to customers. The two companies are separate
legal entities, with separate tax identification. Corso testified ECFC sells processed fruits and
vegetables to CSPC which CSPC marks up and then sells to their food service customers.
CSPC also supplies product to ECFC in its whole form which ECFC cuts up and sells. Foca
testified CSPC distributes cases of produce primarily to restaurants and hotels. Their
customers order a variety of produce, such as apples, oranges, and tomatoes by the case.
CSPC supplies its customers six days a week. Foca testified ECFC is a complimentary
business to CSPC. Foca testified he was formerly the chief financial officer of both CSPC and
ECFC. Corso testified in December 2007, they acquired L & M Produce.
Foca testified ECFC is a food processor or manufacturing company. ECFC takes
produce, washes it, slices it, dices it, and repackages it. Foca testified the products they make
include fresh salsa and other items that can be found in grocery stores, which is about 50% of
ECFC's business. The other half of the business is selling to distributors like CSPC, Sysco, and
U.S. Foods. ECFC also sells to manufacturers, like itself. Foca testified ECFC changes the
product from its original state, and has to follow strict quality systems. They have to meet retail
guidelines in that many retailers want their processors to be safe quality food certified. ECFC
has certain food quality certifications. For example, ECFC can put a USDA stamp on their
product to be sold on the shelf, which makes ECFC different than CSPC.
Foca testified ECFC and CSPC are complimentary businesses and they sell product to
each other. Foca testified the transactions between the two are arms length. When ECFC buys
produce from CSPC an invoice is generated, and paid by an ECFC check and vice versa. Foca
testified taxes on the state level are separate for each company. ECFC and CSPC are housed
in the same building. The rent is split between the two based on square footage used by each.
Foca testified ECFC contracts with CSPC, along with three other trucking companies to ship
ECFC products. CSPS bills ECFC by the pound. Foca testified he was the CFO of CSPC until
the fall of 2009. Foca testified in the fall of 2010, he became a board member of CSI. As such,
Foca sits in on all of CSPC's operating meetings at the board level, which were formerly on a
quarterly basis and at the time of the hearing monthly. Foca testified there were 900 employees
in the company in that CSPC has about 550 employees, and ECFC has about 350 employees
all working at the same facility.
B. The Union campaign
Scott Clark works for the Union as an organizer. He has held that position since October
2010. Clark conducted the union campaign trying to organize the drivers at CSPC. He
estimated CSPC employs about 200 drivers stating they had not been previously organized.7
Clark learned of the organizing campaign at CSPC from Local 639 Secretary/Treasurer John
Gibson, who is Clark's supervisor. Gibson assigned Clark to work on the campaign in early
October. Gibson worked on the campaign prior to Clark. The campaign had been going on for
about a month before Clark took over. Clark testified he was informed that CSPC drivers Luis
Hernandez and Hector Aguilera made the initial contact with Local 639.8 Hernandez is
Sagastume's husband. It is based on Hernandez' union activity that the Acting General Counsel
contends Sagastume was unlawfully terminated. Clark testified he was informed the initial

7 Clark testified none of the estimated 900 employees working at the facility were organized.
8 Luis Hernandez will be referred to as Hernandez. Alex Hernandez who works as a
supervisor in the tomato department will be referred to as A. Hernandez.
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meeting with Union officials and CSPC's employees took place in September. Clark testified
there were about 25 employees present. Clark did not attend this meeting.
Hernandez testified Sagastume is his wife and they were married in 1999 in Guatemala.9
Hernandez started working for L & M Produce as a driver in March 1997 and he began working
for CSPC as a driver when CSPC purchased L & M Produce.10 Hernandez retained his L & M
seniority when he was hired by CSPC. Hernandez' title at CSPC was CDL float driver.
Hernandez did both local and over the road driving.11
Hernandez testified that in the summer of 2010 he had a conversation with co-workers
discussing problems at the job. It was at a soccer field where workers from ECFC and CSPC
were playing each other. Amongst those in attendance, was David Montenegro, who
Hernandez identified as a supervisor from ECFC. Hernandez testified some of the employees
were in favor of having a strike that Saturday and some thought of organizing a union.
Hernandez testified the Saturday following the game; he had a conversation with Corso at the
loading dock at work. Hernandez was coming in from his route. He testified all of the
supervisors were there waiting for the drivers because there was a rumor of a strike. When
Hernandez got down from his truck, Corso asked him if he knew anything about a strike.
Hernandez told Corso that he did not think there would be a strike. Hernandez asked Corso to
ask himself why the company would hire 10 drivers and at the end of the week 12 would leave.
Corso stated maybe those people were not doing their job in an appropriate manner.
Hernandez said maybe it was the supervisors who were not doing their job in a correct fashion.
Hernandez testified there was no work stoppage.12
Hernandez testified that, after the meeting at the soccer field, the employees decided to
organize a union, so Hector Aguilera and Hernandez went to Local 639's office and spoke to
Gibson. Hernandez testified the problems they had related to their supervisor Caplinger not
respecting the workers. During the meeting with Gibson, they started talking about problems at
CSPC, including worker salaries. Hernandez testified they decided to organize and that there
was going to be an organizing committee. There was a discussion about a second meeting.
Gibson gave them cards and pamphlets to deliver to some of the workers who worked late and
were not able to come to the meetings.
Hernandez identified a list containing the signatures of 25 drivers, dated September 8,
who he testified attended a union meeting on that date. Hernandez' signature is on the list.

9 Hernandez testified he can read and write in Spanish and he understands some English.
Hernandez testified through the use of an interpreter for most of his testimony. He voluntarily
left CSPC's employ in January 2011.
10 Hernandez testified McWhorter was the owner of L & M Produce.
11 Acting General Counsel witness Javier Vargas Garcia (Vargas) was employed by CSPC
when he testified. Vargas, like Hernandez, transferred to CSPC from L & M giving him 15 years
of seniority with CSPC at the time of his testimony. Vargas testified his supervisor is Walter
Vasquez, and prior to that Caplinger was his supervisor.
12 Vargas testified the drivers began to express discontent about the way their then
supervisor Caplinger treated them and they started to have meetings as a result. Vargas
testified in the summer of 2010 he heard a rumor about a work stoppage. Respondent witness
Ramos testified as to rumors of a work stoppage amongst the drivers in the fall stating there
were rumors all over the place. Thus, Vargas and Ramos corroborated certain aspects of
Hernandez testimony, which was undenied by Corso. I have credited Hernandez as to his
conversation with Corso and as to the discussions at the soccer game.
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Gibson ran the meeting which took place at Local 639. Hernandez and Aguilera told the other
employees about the meeting. Hernandez identified the Union card he signed on September 8.
Hernandez testified he received around 200 cards from Gibson. Hernandez testified he gave
the rest of the cards out to co-workers for their signature.13 After the cards were signed,
Aguilera and Hernandez turned them over to Gibson. In addition to the meetings at the union
hall, Hernandez attended union meetings at the restaurant Casave, some at a McDonald's, and
some at his house. Only the ones that took place at the union hall had sign in sheets.14
On October 6, McWhorter, vice president of sales of CSPC, sent Corso an e-mail, with
the subject entitled "Driver Thing." The e-mail reads:
John: Larry Hooker-one of the older back drivers-called me yesterday and told me
that the black guys are now being approached to sign petitions. He told me that Javier
approached him and said they had 120 signatures, blah, blah, blah.
My question is this: is there any way you and I can sit down with the leaders of this
thing somewhere off site and have a talk with them?
I did not find Corso's testimony concerning this e-mail to be convincing. Corso testified he did
not know the reference to "Driver Thing" referred to a union campaign. When asked if he knew
what the petition was about, Corso testified "it looked like this rumor was something was going
on, clearly, but I--but it was a rumor. I mean, I hear rumors about everything every day." He
maintained he did not know there was a union activity until he received the Union's October 13
request for recognition. Corso claimed he never had a conversation with McWhorter as to the
subject of the petitions purportedly signed by 120 of his drivers. While McWhorter, a high level
official at Respondent, was asking for a meeting with Corso, Corso incredibly claimed he did not
follow up with McWhorter or ask him what the petitions were in reference to.
Corso's testimony disavowing knowledge pertaining to the content of McWhorter's e-mail
becomes all the more incredible when viewed against this back drop. In the summer of 2010
when the drivers were discussing the possibility of a strike at Respondent, the news quickly
spread throughout Respondent's facility and filtered up to Corso as set forth above. The
discussions concerning a strike amongst the drivers also contained discussions concerning
organizing a union. In fact, Hernandez reached out to Local 639, and on September 8 he
attended a union meeting along with 24 other employees. It is likely; given this sequence of
events that news of union activity amongst his employees reached Corso prior to his receipt of
McWhorter's October 6 e-mail almost a month later. Moreover, Corso was not the type to sit
back and let things happen. He responded quickly and forcefully to the Union's request for
recognition and election petition by hiring outside consultants and personally conducting many
meetings amongst his employees to convince them against selecting a union. He also began
changing the employees terms and condition of employment in October in order to quell unrest
at his work force. I therefore do not credit Corso's claim that when he received an e-mail from
McWhorter entitled the "Driver Thing" that Corso did not follow up with McWhorter for

13 Vargas signed a union card on September 9, which he received from Hernandez. Vargas
testified he was one of the organizers for the Union.
14 Hernandez was on Local 639's organizing committee. Hernandez duties on the
committee included speaking to Gibson and Clark about scheduling meetings. Hernandez
made calls to employees during August through December 2010, and he distributed union
literature to employees during September through the December election. The union meetings
held at Hernandez home took place after Sagastume's termination.
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clarification concerning the nature of the petitions and the identity of Javier. The timing of the
petition signing by employees clearly refers to the employees signing union cards, as Corso
surmised in his testimony. I have concluded Corso did follow up with McWhorter and that Corso
was aware the e-mail referenced employees signing union cards.
Corso testified that in early October: the Company created a suggestion box; and
notified employees of a vacation policy change allowing them to take two weeks off in a row,
rather than a week at a time. The new policy allowed them more time to travel home to their
native country. The policy change was effective on January 1, 2011. Corso testified the change
in the vacation policy was brought about by concerns raised by drivers. Corso also testified the
bonus system for drivers was changed during this period to be more favorable to the drivers
based on concerns expressed to him by some of the drivers.
On October 13, by certified mail, Gibson sent Corso a letter on behalf of CSPC's drivers
requesting that CSPC recognize Local 639 as their collective-bargaining representative. The
letter stated Local 639 was prepared to demonstrate a majority of the employees in the
bargaining unit had designated Local 639 as their collective bargaining representative through a
mutually agreeable third-party. Corso received the letter on October 15.15 Corso testified when
he first received notification from the Union, he had a meeting with all the drivers to let them
know Respondent had received a request for voluntary recognition.16 Corso testified he told the
drivers they have a right to a free and fair and secret ballot election, and Corso was not going to
voluntarily recognize the Union. Respondent responded to Gibson by letter from Attorney Jay
Krupin, dated October 20, declining recognition of the Union until it was certified by a Board
conducted election.
Hernandez testified he attended a company meeting conducted by Corso in which Corso
stated he received a letter from the Union. Hernandez credibly testified Corso stated he had
made many changes in the company, and he asked how the employees could pay him back
that way, that he felt he had been stabbed in the back. Hernandez testified that, during the
meetings he attended, Corso stated he would never allow the Union to come into his company,
that he had lawyers. Corso stated if they presented him with a contract years would pass
before he would sign it. Hernandez testified different drivers attended different meetings based
on scheduling. Vargas credibly testified he attended a meeting where a letter from the Union
was mentioned. He testified Corso and Vasquez were present for the meeting, with about 20 to
30 drivers. Vasquez translated for Corso. Vargas testified the meeting was at the beginning of
Respondent's campaign against the Union. Corso said he had heard rumors of a strike or work
stoppage, so he talked to all of the drivers and wanted to know the reasons for their discontent.
Vargas credibly testified as follows: Corso was very upset with the drivers. He stated he tried to
change things in the company. For instance, he had changed supervisor Caplinger's position,
who had been the subject of driver discontent. Corso wanted to know why the drivers were so
discontent. Corso implied the drivers stabbed him in the back because he had tried to change
things, and he had received a letter from the Union stating it wanted to represent the workers.
Corso said he would not accept a union in his company, that there would be a process, there
would be elections. Corso said due to the Union, he would not be able to offer raises to the

15 Clark testified Hernandez was Clark's lead committee person in helping Clark gather and
disseminate information to the other employees. Clark identified a sign in sheets dated October
16 and October 23, for committee meetings containing 14 and 11 employee signatures,
respectively, including that of Hernandez and Vargas for each meeting.
16 Corso testified he notified managers, including Foca, that Corso received the October 13
union recognition request.
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employees because the Union had messed things up. Corso said if something happened after
the elections, he would not accept the Union, he did not agree with that, and he could not fix
anything until all of this was over. Corso said it was an involved process, and after the election
if the Union won, he would not accept the Union in the company.17
On October 27 at 2 p.m., Corso held a phone conference meeting with individuals on
Respondent's board of directors including Foca.18 Most of the members of the board of
directors were located in Atlanta. Corso identified an e-mail he sent to the board of directors,
including Foca on October 27 confirming the 2 p.m. meeting. The e-mail stated "Attached is a
summary of the major initiatives we are working on along with the next steps/timing." Corso
created the attachment. Included in the attachment was the following:19
-3rd party status
-received a letter from Teamsters 639 October 15 to voluntary recognize the union
-responded through attorneys on Oct 20 that there will be not voluntary recognition,
they will have to petition NLRB for a hearing and an election; ball in their court
-assumption is Union will file
-have spoken to all the drivers about the status of things, about disappointment, about
being careful of promises vs. guarantees, about dues and about the loss of individuality
that a union brings
-trained (Tuesday Nov 26) all front line managers on FOE, SPIT, business as usual, and
"when in doubt call a manager"
-high number of former union (and anti-union) workers at Coastal willing to speak out
against unions.
Grassroots talks continue at all levels (executives, managers, other)
Many business actions taken:
-now require all terminations to have partner approval
-suspended bonus deductions for infractions
-made vacation commitment for "2 consecutive weeks off"
-developed clear "Helper policy"
-reviewed 24 hour off duty police presence for December forward
-created Logistics department

17 I have found Hernandez and Vargas testified in a credible fashion concerning the
meetings they attended.
18 Like Corso, Foca claimed he first became aware of union activity at Respondent when
they received the Union's October 13 letter requesting recognition. Foca testified he was aware
of what was going on with the election, and as a manager he had attended meetings with the
attorneys relating to what Foca was allowed to say and not to say. Foca testified he was aware
the company's opinion "was we didn't need a union." Foca testified he discussed the Union with
his employees. Foca testified it was also his opinion that the people worked better without a
union. In this regard, on March 22, Foca sent an e-mail to Corso and Flanagan containing an
attachment about the Teamsters listing assertions of criminal convictions in the past concerning
officials of the national union. The attachment also listed assets of Local 639, their membership
and the number of unfair labor practice charges they filed since 2000. On October 27, Foca
sent Corso an e-mail detailing the number of discrimination complaints filed against unions
since 2000 at the EEOC. Foca testified he had a lot of Burmese immigrants on his workforce.
By e-mail dated December 3, Foca sent an attachment concerning unions to a Burmese
chairman of a church attended by a lot of Foca's employees.
19 Only a redacted version of the attachment was submitted into evidence.
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-hired Hay Group20
Hired PR firm to help manage the message
-internal and external constituents
-continue to prepare supervisors for possible campaign
-continue to develop potential litigation strategy
-2nd meeting with PR Firm (Live Wire Communication) Thursday Oct 28th.
During the October 27, meeting with the board members, Corso discussed the Union's
October 13 demand for recognition. Corso testified, "I did not feel that a union was necessary at
Coastal Sunbelt Produce, …" Corso testified, "I felt that a union is a third--as a third party is an
outsider. They have their own agendas. They have their own business objectives and that
those business objectives wouldn't necessarily coincide with the business objectives of the
goals of our people or of our customers, and so my preference was to not have the Union go to
Coastal." Corso testified he was concerned his customers would have a lot of questions if the
Union came in, and there was some potential to them reacting poorly to it. Corso testified they
could potentially stop doing business with Respondent. Corso testified, "What I was more
concerned about was that it would take us into a territory potentially be very different than how
we're doing business today and that was uncertainty that frankly the company and the people
worked there didn't need."
The Union filed a petition for election on October 27, in case 5-RC-16605 for a unit of all
regular full time drivers estimating there were 200 employees in the unit.21 Corso testified on
that on October 27, he again met with the drivers and told them a petition has been filed which
means there would be an election. Corso testified there was a management meeting after the
petition was filed to let managers and supervisors know what they could and could not do.
Corso testified Moore, Foca, Flanagan and Corso attended the meeting. During the meeting,
they discussed the petition and their next steps. Corso testified when he received the petition
he also had another meeting with management which was a little more formal. Corso testified
essentially his executive team from both ECFC and CSPC attended the meeting. Corso
testified Foca and Zeleznik would have been there from ECFC and four or five people from
CSPC would have attended.
Union Organizer Clark held a union meeting on October 30 in a restaurant in Jessup,
Maryland around 3 miles from Respondent's facility. Clark testified around 35 to 40 of

20 Corso testified he told employees the company had contracted with the Hay Group to look
at their pay. Corso told employees any pay increases or incentives would not materialize until
after the Union campaign was over. Corso testified he communicated to the drivers that since
he had received the Union's letter, he could no longer proceed with the Hay Group and he could
no longer make any further adjustments because they could be construed as Corso trying to
garner the drivers favor. Corso testified he told the drivers if the Union were to get in, then
everything would change. They would presumably begin some kind of a negotiation. It was not
like there would be a contract the next day and that any adjustments they had contemplated
before the Union drive could no long proceed because the rules would change. Corso testified
he told the drivers Corso would not be able to unilaterally move on things the way he would
have before the Union was involved.
21 Corso testified that after the election petition was filed Respondent began using off duty
police at its facility with 24 hour coverage. Corso testified all of the security and police are
contracted through the HR department and Corso authorized it. Foca testified the company
increased the police presence during the union election period. Foca testified he participated in
the decision to have it done.
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Respondent's employees attended. Clark testified the majority of his organizing committee was
there, including Hernandez. Clark testified he had given instructions to committee members
including Hernandez to get out the word for the meeting. Clark testified that, during the October
30 meeting, he instructed employees not to talk to each other during work about the union.
On October 30, Stalio Callas, general manager-operations, sent Corso an e-mail stating:
Volker walked up on about 10 drivers huddled together and heard them talking
negatively about the union. He said the meeting seemed to be led by Quinn who was
basically talking very negatively, angrily, and cussing about the union potentially coming
in here. Danny Jiminez walked up and another driver, (Volker did not know his name)
started yelling at him saying it was his fault the union is here and now your tip toeing on
both sides.
Hernandez testified driver Edenixon Quinteros is known as Nixon at Respondent.
Hernandez testified that on November 2, Hernandez, along with driver Javier Vargas, attended
a meeting in Corso's office.22 Hernandez credibly testified as follows: At the outset of the
meeting Hernandez, Vargas and Corso were present. When Hernandez started talking about
the Union, Corso stated he did not feel comfortable speaking about that alone, so Corso called
Foca into the meeting. Hernandez told Corso the reason he came to see Corso was a driver
called Hernandez and told Hernandez that Nixon was saying bad things about Hernandez' wife,
Hernandez, and Vargas. Hernandez stated he was told Nixon said this mother fucking Louis
and Javier, and that bitch Mayra they are trying to bring the Union here. Hernandez and Vargas
said to Corso they did not have to bring the Union there because they were making good
money, they had a good position, and they knew Corso would not like the idea.23. Hernandez
said he did not like Nixon talking about Hernandez' wife like that. Hernandez said if Hernandez
heard Nixon say these things directly; he would fight Nixon there or anywhere. Corso said do
not do it because you can lose your job. Hernandez said he did not care, because Nixon
insulted Hernandez' wife. Corso told Hernandez that he understood why Hernandez was angry,
as Nixon was not supposed to talk to you like that. Hernandez asked Corso to talk to him.
Corso said no that Hernandez had to go to human resources and make a claim. Hernandez
testified he never mentioned Sagastume's name during the conversation because he thought
Corso knew they were talking about her as his wife. Hernandez testified Foca was present
when Hernandez he told Corso that Hernandez was not involved in the Union.24

22 The meeting came about because Hernandez asked to speak with Corso. Hernandez
testified, "because Nixon Quinteros was going around insulting me and saying bad things about
me and my wife, and he was uttering profanities. He called my wife a bitch. He said that I was
a son-of-a bitch. And I just wanted to clear all these things that were being said about us."
Hernandez testified his friend Vargas was involved with Hernandez in organizing the Union, and
Vargas was also being insulted by Nixon.
23 Hernandez testified he and Vargas thought if Corso knew they were involved with the
Union, he would take vindictive measures against them. Hernandez testified that is the reason
they told him they were not involved.
24 Vargas essentially corroborated Hernandez' testimony as to the November 2 meeting.
Vargas testified that, during the meeting, he and Hernandez denied participation in the Union
due to fear of retaliation. Vargas testified it was his belief that Nixon made it known to
management that Sagastume, Hernandez, and Vargas brought the Union in and that Nixon was
using obscene words against them. Vargas testified there were a lot of people in the company
telling Vargas and Hernandez that Nixon let management know that Hernandez and Sagastume
were behind the Union. Vargas did not hear Nixon making these comments directly.
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Hernandez testified Corso took him to human resources on November 2 where
Hernandez met with Erin Morgan and Walter Vasquez, Hernandez' supervisor, who Corso
called to provide translation. Human resources is on the same floor as Corso's office.
Hernandez credibly testified that: Hernandez asked Vasquez why there was so much of a
problem with the business of the Union. Morgan asked Hernandez why he was there.
Hernandez said yesterday driver Hugo Arias called Hernandez because Nixon was talking
about Hernandez' wife, Vargas, and Hernandez saying really bad things that they were trying to
bring the Union there. Hernandez said it is not true. Hernandez said if Nixon had proof
Hernandez was trying to bring the Union there, he could show it to Corso. Morgan said she did
not know why Nixon would talk about your wife like that. Vasquez said Nixon should not be bad
mouthing your wife, even if it were true.25 During the meeting, Morgan asked Hernandez if he
could work with Nixon. Hernandez said if they want to great, but if Nixon did say something,
Hernandez would want to fight him. Morgan said if you fight with him you lose your job.
Hernandez said he did not care that if Nixon said something about his wife that did not leave
Hernandez any choice. Hernandez was told to go back to his job, and if Hernandez had any
issues come to Morgan, Vasquez, or Corso. Hernandez agreed. Vasquez stated he would talk
to Nixon and he would not bother Hernandez anymore. Hernandez left. Hernandez testified he
provided a statement to Morgan on November 2, but Morgan did not show him the statement.
Hernandez credibly testified he told Morgan that Nixon was saying they were members of the
Union. Hernandez told Morgan that Nixon said that son of a bitch Luis, that son of a bitch
Javier, and that bitch Mayra were trying to bring the Union to Respondent. Hernandez did not
hear the remarks directly from Nixon.
Vargas testified Corso accompanied them to human resources to present a report.
While at human resources, Vargas spoke with Morgan, and Vasquez translated. Vargas
testified he and Hernandez spoke with them separately. Vargas testified he stated Nixon was
disrespecting them using obscene words. When Nixon referred to Sagastume, he spoke of her
as if she were a street person. Vargas testified they took down the report at human resources,
but said they would not do anything until they heard Nixon's side. At the meeting, Vargas spoke
about Nixon was accusing Vargas of being one of the union organizers. Vargas said if he had
any proof, he should show it to Vargas. Vargas asked them to do something about it. Morgan
told Vargas she was going to follow up with Nixon because of the bad language he allegedly
used against Vargas and Hernandez, and because Nixon was saying Vargas and Hernandez
were Union organizers. Vargas testified Morgan subsequently told Vargas she had spoken to
Nixon, but she did not tell Vargas the results of Nixon's interview.26
Sagastume testified that in November 2010, she had a conversation with Corso about
Nixon. Present were Corso, Morgan, someone named Joey, and Milagros, who worked for
human resources. Sagastume testified she asked for the meeting because she found out Nixon

25 At that time, Arias came up to give a statement because Hernandez told him about the
meeting. Morgan left the room and while she was out Hernandez told Vasquez that Nixon was
talking about Hernandez' wife saying all these things, and that to speak about the Union was a
subject that was very delicate and serious. Hernandez told Vasquez if the company ever found
out that he was doing that they would terminate him, but they would not fire Hernandez directly,
they would look for an excuse to fire him, or pressure him into resigning.
26 I have credited Hernandez and Vargas' testimony as to the contents of their meetings on
November 2, first with Corso and Foca, and then with Morgan and Vasquez. They testified in a
credible fashion as to the meetings, and their testimony is corroborated or undisputed on the
record. Morgan and Vasquez did not testify.
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was saying bad things about her and referring to her in vulgar terms. Sagastume asked Corso
to talk to Nixon to ask him to stop talking about her and sticking her in the drivers' problems.
Sagastume testified Nixon was "going around saying that old whore, who is his wife, that she
was taking information to the people in the tomato lines so that they would go into the Union.
Because Luis was the union organizer --". Sagastume told Corso to tell Nixon to stop talking
about her, and to stop insulting her. Corso said he understood and he would speak to Nixon.
Sagastume testified she did not tell Corso her husband supported the Union. Rather, she told
him Nixon was saying her husband supported the Union.
Corso testified on November 2, Hernandez and Vargas came to him about a problem
with Nixon. He testified Sagastume also came to Corso about a complaint about Nixon. Corso
could not recall whether Sagastume's meeting was before or after Hernandez' meeting. Corso
testified he did not remember what the next steps concerning their complaints were. Corso
testified he thought HR would take care of it. Corso testified Nixon also made complaints.
Corso's testimony appeared to be purposely vague concerning this incident. For example, the
following exchange occurred:
JUDGE FINE: Were you aware Mr. Nixon was making complaints, sir?
THE WITNESS: Mr. Nixon, we -- did Mr. Nixon come talk to me or did I tell him to talk to
HR, I don't remember. I don't know what went on. But I will tell you is that I know
whatever Mr. Nixon had involved, I directed it to HR. I didn't get engaged with it.
JUDGE FINE: Well, do you know what the subject of his complaints were?
THE WITNESS: I think it had something to do with Luis and Javier, because they were
the ones in my office on November 2nd. But I'm not sure.
JUDGE FINE: Well, did you talk to HR? Did Mr. Nixon come to your office at all?
THE WITNESS: He didn't come to my office, Your Honor.
JUDGE FINE: Did you discuss it with him at all?
THE WITNESS: Did I discuss this with him? I don't remember whether I pulled him up
or somebody else pulled him up to make this statement, Your Honor. I don't think I was
involved. I wouldn't have been involved in this.27
JUDGE FINE: All right. Did you ever receive a report of what Mr. Nixon's complaints
were?
THE WITNESS: No, I didn't Your Honor.

27 Corso later testified concerning his contacting Nixon that Nixon did not tell him a whole lot
and that he could not recall whether he had a conversation with Nixon. Corso testified it was
important that Nixon gave his side of the story. Concerning referring Nixon to HR, Corso
testified, "I don't know if I asked him to go up or referred him to go up, or he came to see me, I
don't remember." Corso testified, "All I know is that he ultimately ended up in human resources
and that was enough for my purposes." Corso testified he could have had a conversation with
Nixon, but it would have been very brief, and it was not about the Union. I found Corso's lack of
recall as to his contacts with Nixon concerning Hernandez, Vargas, and Sagastume to lack
credibility. Corso spent considerable expense and time in his efforts to combat the Union's
organizing of his employees. Morgan's notes of November 2 reveal that Nixon told her that
Vargas attempted to persuade Nixon to sign a union card leading to something close to an
eventual confrontation between the two. I have concluded that given the nature of Hernandez,
Sagastume, and Vargas complaint to Corso, as well as Respondent's strong stance against the
Union, that whether or not Corso spoke directly to Nixon about it was something that Corso
would not likely forget. Given the ambiguous nature of Corso's testimony concerning his
contact with Nixon, I have concluded that he either spoke to Nixon directly, that Corso received
a report from human resources about what Nixon had to say, or both.
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JUDGE FINE: And you have never seen this before?
THE WITNESS: Never seen this document before.
* * *
JUDGE FINE: You never spoke to Ms. Morgan about what she learned.
THE WITNESS: I don't remember at this point, Your Honor. I don't know. Let's see if
she has something, so I'll say I don't know. I don't remember.28
The document Corso denied seeing is typewritten notes, dated November 2, made by Morgan
during her interview with Nixon. In the notes, Morgan included a "Statement provided by
Nixon." Morgan reported that Nixon stated Javier Vargas gave Nixon a card and asked Nixon to
meet Vargas at McDonalds. Nixon responded he would think about it and Vargas said no sign it
now. Nixon said he had a right to think about it. Nixon said he saw Vargas by the hand trucks
with some other men who were talking about the Union. It was stated Vargas later approached
Nixon in the parking lot and said he had come to talk to Nixon. Nixon just drove off. He stated
Vargas followed him in his car to a light. Nixon stated Vargas got out of his car with a knife in
his hand, but Nixon again drove off. Nixon stated he told this to Justin Callas, Erika Perez, and
Steven Griffin this morning. Nixon then discussed some other employees' opinions about
having a union. Nixon stated he could continue to work with Hernandez and Vargas peacefully
while the investigation was being conducted.
On redirect exam, when questioned by his own attorney, Corso's memory as to the
events of November 2 greatly improved. Corso testified in detail about his November 2 meeting
with Hernandez and Vargas. Corso even had specific recall of where Hernandez, Vargas, and
Foca sat in the room. Corso testified Hernandez did the talking. Hernandez said an individual
had been targeting his wife and saying bad things about Hernandez because he was suggesting
that Hernandez was part of the Union. Corso responded that before they talk about anything
union related he wanted to get someone. Corso left the office and returned with Foca. Corso
asked Hernandez to start back up from what he was saying. Hernandez said Nixon is saying
bad things about my wife and calling her all kinds of nasty names just because Nixon says
Hernandez supports the Union. Corso asked if Nixon said that directly to Hernandez and
Hernandez said no. Corso testified Hernandez started to use some very vulgar language and
became extremely animated about what he would have done if he had heard it directly. Corso
told Hernandez to calm down and that he could understand Hernandez being upset. Hernandez
told Corso that Hernandez did not support the Union and he was not affiliated with the Union.
Hernandez said he loved working there and he was one of the highest paid drivers that it was
great. Vargas said to Corso he had been at L & M a long time, at Coastal, that he made good
money and was very happy. Corso testified they voluntarily stated to Corso with Foca in the
room that they had nothing to do with the Union. Corso said that was fine that he trusted them.
Corso directed them to human resources, stated they need to make statements and they will
take care of it from there. Corso testified when Hernandez referred to his wife, Corso assumed
it was Sagastume. Corso testified this was the first time he had ever heard the word union, non-
union, with regards to Vargas or Hernandez. Concerning Nixon, as to whether he followed up
on whether Nixon made the alleged remarks, Corso again testified he could not recall.
Foca testified concerning his attendance with Corso at the November 2 meeting with
Hernandez and Vargas. Foca testified there were two points in the conversation. One was
Hernandez was upset about an incident that happened to his wife, Mayra, with another driver.
Hernandez said he also wanted to make sure that Corso and Foca understood that a lot of

28 In fact, as set forth later on in this decision, shortly before Sagastume was terminated,
Corso did request the results of Morgan's investigation of the events of November 2.
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people were pointing the finger at Hernandez, but that Hernandez was not the organizer of the
Union. Hernandez stated he did not support the Union and explained the reasons why. Foca
testified he did not know Hernandez before November 2 because Foca did not have direct
contact with the drivers. Foca testified Hernandez was telling a very believable story. Foca
testified as follows:
Q. Why was it so believable?
A. If I have nothing to do with the Union, and people were accusing me, I think I would sit
down with the people and say, hey, guys, you need to understand. I think I would do the
same thing if I was in his shoes.
JUDGE FINE: Why it that?
THE WITNESS: If I was a person that didn't support the Union, and I thought there may
have been some rumors, I think I would go to people and say, hey, just so you know, I'm
not part of this.
JUDGE FINE: Why? Why would you feel that it'd be necessary one way or the other?
THE WITNESS: I think he wanted us to understand his point of view and know that, hey,
I'm not part of this. I really didn't analyze it a whole lot.
While Foca claimed he did not know Hernandez prior to November 2, Foca testified he knew at
the time that Hernandez was married to Sagastume. Foca testified he did not know if
Hernandez mentioned his wife's name during the November 2 meeting, "but I knew who he was
talking about, absolutely." Foca claimed he had already decided to eliminate Sagastume's
position as of the November 2 meeting.
Corso hired an outside union consultant called Russ Brown Associates (RBA) to help
with Respondent's campaign against the Union. Brown sent Corso a proposal for their work on
November 4, with the heading "Re: Union Prevention Proposal", which was underlined and in
bold ink. In the letter, Brown stated, "we hope to provide some of the multitude of reasons why
we are best suited to assist you in defeating the Teamsters…". Brown stated, "We will garner a
win; provided we are given sufficient time to produce results." This statement was also
underlined for emphasis. The plan laid out by Brown in the proposal letter was for RBA to hold
weekly group employee meetings with all voters, the content of which was discussed in Brown's
letter. The plan also included one on one meetings with each voter. Brown stated they would
also work with Corso under the heading "Supervisory Training" in guiding your supervisors in
the correct and legal procedures and tactics. It states, "We will share 20 years experience 'in
the trenches' on how to campaign most effectively with employees." The letter included a 5
week plan concerning Respondent's actions during the election campaign. Week 2, 3 and 4,
included "One on one campaigning", which was in bold and underlined print. Brown signed
RBA's proposed contract with Respondent on November 5. It was stipulated that CSPC agreed
to pay RBA between $125 and $225 per hour for their services. Corso notified Foca that he
entered into this agreement with RBA. Corso identified an e-mail chain which he sent to
Respondent's board of directors in Atlanta on November 5 concerning the decision to use RBA.
He stated in the e-mail, "They are due to kick off on Tuesday". Corso received a response from
a board member on November 5, to which Corso replied, "We feel good about the references
and the decision to move forward." Corso forwarded a copy of the e-mail chain concerning the
hiring of RBA to Foca on November 6 at 2:46 a.m. Corso testified Brown came to the facility
and met with some of the managers, including Foca. Corso testified Respondent started
working with RBA shortly after Corso's receipt of Brown's November 4 proposal. Corso
estimated they started working on November 5 or 6.
Corso testified his staff received training from RBA "to make sure that we were not
allowed to threaten anybody, make any promises, or interrogate or spy on people. And we were
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trained to basically speak about only the facts, opinion, or experience." Corso testified his
executive team, managers, and supervisors received training. The RBA document used in the
supervisory training states, "In the event of a Union organization drive, don't think you can hang
back and remain neutral."
Hernandez testified he attended meetings held by management concerning the Union.
He testified the meetings began around the end of October. Attendance was mandatory.
Hernandez testified he was paid to attend the meetings in the amount of $25 a meeting.
Hernandez testified CSPC had three shifts for its drivers. Hernandez testified 95 percent of the
work force was Hispanic. Corso presided over the meetings, with Walter Vasquez serving as
the interpreter for the Spanish speaking employees. Hernandez testified once the process
began a man named Luis and a woman named Olga also spoke at the meetings.29
Vargas testified he attended meetings at Respondent held by management concerning
the Union. Vargas testified he attended one per week. Vargas testified the meetings started
after Corso received a letter from the Union. Attendance was mandatory, and employees had to
sign in at the meetings. Vargas testified he was paid $25 per meeting to attend the meetings.
Vargas testified the company meetings occurred throughout the day as the drivers had different
schedules. Corso and his assistants presided over the meetings. Vasquez translated at some
of the meetings. In one of the meetings, McWhorter was present. Vargas testified he attended
a meeting in the small meeting room where a strike was mentioned. There were 20 to 30
people there, with Corso presiding. Luis, a contractor Corso hired to talk about the Union,
translated for Corso. Vargas credibly testified Corso said if the Union won the first thing they
would do is to ask the employees to hold a strike because Corso would not accept their
conditions, nor would he sit down and negotiate with them. Corso also said if there were a
strike, any one of the drivers could be terminated permanently and replaced by another driver.
He said strikes could last months or years, and he was not about to let that stop his company,
and for that reason, the employees could all be permanently replaced. Vargas testified Corso

29 Hernandez testified the employees were paid for the company meetings where Luis and
Olga were in attendance. Luis and Olga were apparently working for RBA. While Hernandez
initially testified he had received approximately $300 for attending these meetings, he later
testified it could be only have been $150. He could not state whether he attended 6 meetings or
12 meetings. Hernandez thought the paid company meetings took place in November and
December. Hernandez' payroll records from September 1 to December 30 show Hernandez
was paid a $25 bonus on each of November 18, December 2, December 7, and December 15.
Corso testified the $25 bonus was paid to drivers for attending Respondent's meetings
concerning the union campaign. Corso testified the meetings were held with RBA or Corso
speaking. Corso testified that in the fall of 2010 prior to the Union campaign, they had some
focus groups and they paid drivers some money for attendance. Corso testified they were
longer meetings and he thought they paid $50 for those. Hernandez' payroll records during this
period showed he received one $50 bonus on September 14. Hernandez estimated he
attended more than four meetings conducted by Respondent concerning the Union. Hernandez
records show he was only paid $25 for each of four meetings. However, Corso received the
letter requesting recognition from the Union on October 15, and he testified he conducted
meetings with the drivers concerning that letter. Hernandez and Vargas attended such a
meeting. Corso testified he also held a meeting with the drivers when the representation
petition was filed by the Union on October 27. Apparently, the drivers were not paid for
attending either of those meetings. Hernandez payroll records bare out his testimony that he
only started being paid to attend Respondent's meetings concerning the Union after
Respondent contracted for the services of labor consultants RBA.
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said he was against the Union. Corso said he preferred to shut down his company than to have
the Union come and tell him what to do.30
Corso testified he gave speeches to employees during the election process in support of
their voting against the Union. Corso testified he was disappointed the drivers wanted a union
and he shared his disappointment with employees.31 Corso identified a document provided by
RBA which Corso used for talking points during some of the employee the meetings.32 He
testified he did not read from the document, and his recollection of what he specifically said at
the meetings was vague. Corso testified he may have told employees as far as he was
concerned a union was not an option for Coastal. Corso testified he would have said that
should a union happen at the company, we obviously have to do whatever is necessary to
protect our organization, to protect the many families who are here, and to protect our
customers. Corso testified, "I don't remember what else I said but that's kind of the flavor of it."
Corso testified during the week he used the document for his speeches there were groups of 30
in attendance, and he estimated he used the document for six or seven meetings. Corso
testified, "I was saying that we have -- Coastal Sunbelt Produce has attorneys, yes, something
like -- some version of that, yes, I don't remember what I said." The import was to make sure
that we conducted a free and fair election. Corso testified he told everyone prior to receiving
notification from the Union that he had heard much feedback about their pay system through the
focus groups, so Corso engaged the Hay Group, a consultant because it was important to make
sure they paid people competitively and once the Union started they had to put that on hold.
Hernandez credibly testified to a conversation he had with CSPC Fleet Manager Joey
Saia, an admitted supervisor at Respondent. Hernandez has known Saia for around 14 to 15
years. Hernandez testified as follows: Saia called Hernandez the Sunday after Hernandez'
November 2 conversation with Corso, which was November 7, at around 3 p.m. Saia told
Hernandez he wanted to talk to him and it was personal.33 Hernandez met with Saia at around
5 p.m. that day at Saia's house. Saia said to Hernandez that he wanted to know what was
going on with the Union. Hernandez said he really did not know what was going on. Hernandez
said there were a lot of people involved with this problem. Saia said he heard Hernandez was
the head of the Union. Hernandez responded they lied to Saia. Hernandez asked Saia who
asked him to talk to Hernandez, and if it was it Corso. Saia said no, there was a conversation,

30 I have credited Vargas testimony as to what Corso stated during the described meeting.
At the time of his testimony, Vargas was a long term employee testifying against the interest of
his employer. In fact, Corso was in the room when Vargas testified. Vargas testified in a direct
and credible fashion. Corso did not directly deny Vargas' description of the meeting. Rather, as
set forth below, Corso professed poor recall of what he specifically said. He at times he
described his discourse in terms of what he would have said as opposed to his actual
statements made.
31 Corso testified employees of CSPC volunteered to speak out against the Union. Corso
testified a number of employees approached him saying, "I don’t want the Union here, …"
Corso testified he responded, "this is what you have to do. Now is the time to speak up and be
passionate about it. If this is something you don't believe in, then you have to let your voice be
heard. That's part of a fair and open election process and you should speak up. So a number
of employees spoke to me."
32 Corso could not recall the date of the meetings in which he used the RBA document,
stating it was after November 6. Corso testified they had several weeks of meetings because
the drivers were a large pool working different hours.
33 Hernandez testified Saia frequently called Hernandez about work or some other reason.
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and Saia offered to talk to Hernandez because Saia was Hernandez' friend.34 Hernandez told
Saia that he knew Saia was his friend. Saia said he wanted to know who the person is in
charge of the Union. Hernandez responded there are too many people on board, it was not just
Hernandez, not just Vargas, there were 20 to 25 people. Saia told Hernandez to talk to Corso
that Corso is a nice man. Hernandez said he did not trust Corso. Hernandez said Corso may
be a good person, but when he comes downstairs and talks to the supervisor, all the problems
stay downstairs after he leaves. Hernandez told Saia of problems at work and how the
supervisors could get Hernandez fired, and of problems he was having with Caplinger. Saia
told Hernandez to talk to Corso, explain everything to him, "maybe they can give (you) a
different position because you know all the routes." Hernandez said he was sorry, "but I don't
trust John." Hernandez said he was going to talk to McWhorter because he had worked with
him before, and when Hernandez had an issue he went to him and he fixed it right away. Saia
said to Hernandez please talk to the people and try to stop the Union because it is not good for
the company. Hernandez said it was not good for the company, but Hernandez needed
respect, and that is the point. Hernandez stated he did not have too many issues with the
company because he was making really good money. Hernandez said he did not know if he
came to work one day whether Caplinger would decide to fire him. Hernandez said he wanted
to protect his job. Saia said please talk to the guys and try and stop the Union. Hernandez
said, "well, Joey, let me try to talk to them,…".
Vargas credibly testified Saia spoke to drivers in the drivers department concerning the
Union. Vargas testified since Saia is a good friend of all the drivers, he thought he could obtain
information from them. Vargas testified Saia asked Vargas if he knew who was doing the union
organizing on more than one occasion. Vargas testified that, about 2 or 3 weeks before
Sagastume was terminated, Vargas told Saia that Vargas was in favor of the Union. Vargas
testified Saia knew Vargas and Hernandez were good friends and where Vargas went
Hernandez was going to be concerning the union.35
In crediting Hernandez and Vargas concerning their conversations with Saia, except as
specifically discussed to the contrary in footnotes, I have taken into consideration that
Hernandez omitted the conversation from his pre-hearing affidavit, and he also stated in the
affidavit that the company did not know about his union activities.36 However, Hernandez
testified with good recall concerning the conversation Saia, and it did not appear through my
observation that he was inventing the event. I have also considered Vargas status as a current
employee when he testified and his testimony served to corroborate Hernandez to the extent
that Saia was engaging in the practice of questioning employees concerning their union

34 Hernandez went on to testify that he thought Saia had the conversation at work with
Corso. Hernandez testified Saia did not say it was with Corso, but rather with all the personnel
at Coastal. Hernandez then testified Saia said he had the conversation with Corso, and some
other unnamed people. Hernandez testimony here was somewhat convoluted and I do not find
Hernandez was told directly by Saia that Corso asked him to talk to Hernandez.
35 Vargas testified he did not hear Saia directly question Hernandez. However, Vargas later
testified her heard Hernandez tell Saia that Hernandez supported the Union. Vargas testified
that was around one to two weeks before Sagastume was terminated. I do not credit Vargas as
to this aspect of his testimony as it only came belatedly, and it was not confirmed by Hernandez.
36 Hernandez testified he believed Saia was his a friend. However, Hernandez testified he
thought, at the time of the trial, that his conversation with Saia was the reason Respondent
terminated Sagastume. In this regard, Hernandez testified when he informed Saia of
Sagastume's termination that Saia did not seem surprised.
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activities. Finally, Saia was not called to testify creating an inference that he would not have
challenged the accuracy of Hernandez and Vargas' descriptions of their encounters with him.
Vargas testified McWhorter was one of the owners of L & M Produce. Vargas testified
McWhorter owns shares of Respondent and Vargas thought McWhorter managed
Respondent's sales personnel. Vargas testified he and McWhorter spoke about the Union a
few of days prior to Sagastume's termination. Vargas testified McWhorter was calling drivers
into his office. He testified McWhorter called him into the office at noon, and he asked Vargas
what he thought about the Union. Vargas told McWhorter it was the only way to fix things with
the company because they were not respected and they did not have any guarantees.
McWhorter said that was crazy because the Union was not a good thing, it charged for its
services, and the Union could only make promises. McWhorter said the Union brought a lot of
problems to the people. Vargas asked if the Union is so bad, why they did not let the Union
explain what benefits it can bring to the employees. Vargas testified McWhorter knew
Hernandez was Vargas' friend and therefore it was likely Hernandez supported the Union.37
C. Sagastume's November 18 discharge
Sagastume began working for L & M Produce in 1997.38 She obtained the job through
her husband Hernandez, who was already working there and who spoke to McWhorter on
Sagastume's behalf.39 Sagastume testified the company name changed around 2 or 3 years
ago when L & M was purchased by Respondent. Sagastume testified that, at the time L & M
was sold to Respondent, Sagastume worked in what she referred to as the broken room. The
broken room is also referred to as repack by the parties. Repack is part of the tomato

37 Vargas testified credibly about this conversation. McWhorter was not called as a witness
and therefore Vargas testimony was uncontroverted. Moreover, the content of McWhorter's
remarks as Vargas described them parroted some of Respondent's campaign themes such as
the union would take money from employees pay and could make no promises. Finally,
Respondent's campaign strategy as set forth by RBA called for one on one meetings with
employees and for supervisors to actively participate in the campaign to enhance Respondent's
cause. Hernandez and Vargas also credibly testified that following Sagastume's discharge, at
the end of November, McWhorter called Hernandez and Vargas into his office as McWhorter as
he was doing with all of the former L & M drivers. During the conversation McWhorter
questioned them about what they thought about the Union. Hernandez told McWhorter he was
with the Union. Vargas testimony served to corroborate Hernandez description of the meeting
stating that McWhorter asked them what they thought of the Union, and they said they were in
favor of it. Vargas confirmed that McWhorter tried to talk them out of their support.
38 Sagastume testified around 17 to 18 years ago she worked for Respondent for around a
year and one half at a different location. She testified where she worked then is now referred to
as ECFC at Respondent. At that time, Sagastume worked processing vegetables and packing
them for restaurants. Sagastume testified she had about 9 years experience performing the
work now performed by ECFC. Sagastume testified ECFC has certain sanitary standards they
maintain while cutting up product, which are more stringent than the standards required for the
tomato line, and that because of that production employees are not transferred between the
tomato department and ECFC. Sagastume testified she also had experience working in ECFC's
type of operation because she worked for L & M from 1997 to 2003.
39 Sagastume testified she sometimes referred to Hernandez as Fernando. Sagastume
testified WcWhorter, Ramos, and Saia knew that she and Hernandez were married. Hernandez
also has a nickname at work called "Fish" for "Fishy." Respondent's counsel stated at the
hearing Respondent was not contending Hernandez and Sagastume were not married.
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department where Sagastume worked at the time of her termination at Respondent.40
Sagastume testified repack is where they prepare all types of fruit and vegetable products in
small units or quantities which are mostly orders for restaurants.
Sagastume worked Monday through Friday with a 6 or 6:30 a.m. starting time.
Sagastume's departure time depended on the daily work load. She testified busy periods
included holidays such as Thanksgiving and Christmas. At the time of her termination at
Respondent, Sagastume's job title was administrator. Sagastume held that job title for 2 and
1/2 to 3 years. Sagastume described her day at Respondent as early in the morning she issued
reports on the produce for repack to find out the quantity of work that had to be done that day.41
Sagastume obtained the report from the computer, and according to its requirements she then
ordered the products for the workers that day. Products included items such as chilies, yellow
chilies, cilantro, Italian parsley, and potatoes. Sagastume had employees bring the listed
products to the work area in the morning to ensure that at 7 a.m., when the first repack workers
arrived they could begin work. Sagastume prepared inventories making sure all the produce
received in the repack was entered into the computer. Sagastume would also go to the
warehouse to check the actual product inventories, and she would go back and correct any
mistaken amounts in the computer. Sagastume kept information concerning slats of produce
being placed on pallets and she entered that information into the computer program.
Sagastume also performed what she termed quality control in that she made sure there were
sufficient materials such as caps and gloves for employees. Sagastume had to ensure there
were adequate quantities available of the chemicals used on the tomato line such as chlorine.
Sagastume made sure there was a person there who could do the cleaning. Sagastume had to
fill out the appropriate cleaning report and initial it every day. Sagastume filled out all the forms,
checked the chlorine level on the tomato line, and she made sure employees had everything
they needed to work. Sagastume also placed labels on the pallets to make sure they went to
right place in the warehouse. She testified there were around 30 different products. Each had a
particular size box. Sagastume's main job was in repack where she was in charge of
inspecting. When they finished packing a pallet, she inspected it for quality before they started
another one. Sagastume inputted information in the computer just for repack. There were 11 to
12 people working in repack who did the packing. The work done on the computer was only
done by Sagastume. If Sagastume had the time, she went to work with the woman at the
repack table.42
Julio Ramos was Sagastume's supervisor at Respondent. He had been her supervisor
for 2 or 3 years. She communicated with Ramos in Spanish. Ramos supervised around 40

40 There is a department at Respondent outside the tomato department which is also called
the broken department. Sagastume did not work there. For purposes of clarity in this decision,
I will refer to the area where Sagastume worked in the tomato department as repack.
41 A separate daily report was issued by A. Hernandez for the tomato line.
42 Sagastume testified tomatoes were not her primary responsibility. Reports from the
computer for tomatoes were done by A. Hernandez and Ramos. Sagastume testified Perdomo
was A. Hernandez' assistant. Perdomo practically performed the same function as A.
Hernandez. Sagastume was also training Perdomo in repack. When Sagastume was
terminated, Perdomo practically knew everything that had to be known in the repack
department. Sagastume testified when the tomato line was very busy and needed help people
from repack would help them, and vice versa.
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people in the tomato department, which included repack where Sagastume principally worked.43
There was one shift at the tomato department. Sagastume testified Perdomo started working
with them in the computer room in the tomato department. Sagastume understood Perdomo
was being trained to be another supervisor. Perdomo started in the tomato department about 4
to 6 months before Sagastume was terminated. Sagastume testified when she was terminated
Perdomo was out from work with medical problems. Sagastume testified Alex Hernandez (A.
Hernandez) was an assistant to Ramos. In Ramos' absence, Hernandez took charge of the
tomato line. A. Hernandez also knew the repack work very well.
Sagastume's computer was in a covered office. The area included a table, two chairs,
and two computers. Sagastume testified the office was noisy because the trucks go by there,
the forklifts make noise, and because of the tomato line itself. There are machines at the
tomato line including pallet bearers and forklifts. Sagastume testified the tomato line consists of
a broad moving belt where a lot of people check to see that no rotten tomatoes get through, and
they also separate the green, yellow, and red tomatoes. They put the tomatoes in boxes.
Sagastume testified that during September, October, and November 2010, she was working
more than 40 hours a week, stating sometimes 46, 49, 50 hours from Monday through Friday.
During that time, she spent most of her time in the repack and she very rarely worked on the
tomato line. Sagastume testified when she did work on the tomato line, that neither she,
Ramos, A. Hernandez, nor Perdomo worked there physically. Sagastume testified the type of
work she performed on the tomato line was she would rotate personnel from the tomato line and
to the repack line, would make sure people were doing their job, or ensure they had all the
materials they needed to do the job. Sagastume testified the few times she worked on the
tomato line it was on Ramos orders, and what she did was check quality on the tomatoes by
watching the tomatoes on the line. She did not pick the tomatoes off the belt and inspect them.
Sagastume testified she never did packing of the tomatoes.
Sagastume testified when it was very busy she was spending about 35 hours a week
typing information into the computer. The program was in English. While Sagastume does not
read or write in English, she was trained to use Respondent's Excel program by Ramos and A.
Hernandez. More specifically, Sagastume typed three different types of information into the
program. This included the morning report which contained what had to be worked on in the
repack department. There was another page called the yellow page, where Sagastume typed in
the date, the code of the product, the quantity of boxes that had been used, and the number of
people that had worked on it, the amount of time they had used, and the price of the box that
was used for each product. The yellow page would issue a price for the box. According to the
price, Sagastume went to another page to enter that information into the system. Sagastume
testified she also typed the inventory into the computer. The inventory is on a page in the Excel
program which Sagastume printed and then went to the warehouse to verify the actual amount
of product was correct on the inventory sheet. Once she checked the inventory at the
warehouse, Sagastume corrected the amount in the computer program. The only other thing
Sagastume did with the computer was to print labels and put them on the pallets. Sagastume
testified working on the computer and gathering information for it took most of her day.
Sagastume testified she also worked in the repack department, mainly in the morning.
She testified it was around 15 hours a week that she worked there mainly from 8 to 9 a.m.
Sagastume would check to see which area of the repack department needed help. Then she

43 There are three production lines in the tomato department that is two tomato lines and
one repack line. The parties often refer to the tomato department as the tomato line, and it on
occasion may be referred to as such in this decision.
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helped them by doing everything they did, for instance packing the produce, or making boxes
for packing the produce. She testified there were about 10 to 12 workers in the repack
department. Sagastume testified she could perform the packing as fast or faster than the
employees who worked in repack. Sagastume testified she had responsibilities with chlorine
which was only used on the tomato line. Sagastume had to check the chlorine level 3 times a
day, and make sure the machine was working correctly.
Sagastume testified she attended an anti union meeting at the job. Sagastume testified
Corso spoke and there were two people there who Respondent hired as part of its campaign
against the Union, one of them was Luis, another was a woman. Corso spoke in English, and
Luis translated for him. Sagastume testified all of the employees from the tomato department
attended the meeting. The meeting was around 11 or 11:30 a.m. Ramos sent the employees
to the meeting. Ramos said his bosses from upstairs sent him an e-mail that the employees
were to attend. Sagastume testified Corso said he held the meeting because he found out the
drivers department wanted to form a union. Corso said he had heard those rumors and he was
very worried. Corso said he wanted to let them know the Union was a bad thing for the
company and for the employees. Corso said when a company worked under a union the rules
changed. Corso said the Union would take money out of your check every week. He said
nothing is free. Corso said you would not be able to talk to him directly. Corso said, for
example, if you want to ask for a raise Corso would have to do it on the basis of the Union and
whether the Union decides its is possible. Sagastume testified Corso said he was totally
against the Union and then they showed the employees a video. Sagastume testified
everything in the video was against the Union. She testified Corso said if they found anyone in
the parking lot distributing literature please ignore them and to tell Corso about it. Sagastume
testified the meeting took place around 2 or 3 weeks prior to her termination.
On November 15 at 11:22 p.m., Corso sent an email to Moore, in which he stated,
"Checking in. Things going well." In his e-mail Corso asked Moore, "Did we ever follow up on
complaints Nixon, Javier, Luis and Myra lodged?" Moore responded by e-mail dated November
16 at 6:25 a.m. stating "I will check with Erin (Morgan) on the other once she is in." As to
Corso's question as to how things were going, Moore responded, "Not so good, there was some
pro-union talk from the night warehouse team. I will go over the issues when you are in today."
As set forth above, Morgan's notes revealed she had interviewed Nixon on November 2, and
Nixon had given her a statement informing her that Javier (Vargas) had given Nixon a union
card and insisted Nixon sign it at the time and Nixon refused. Morgan's notes reveal that Nixon
stated Vargas had subsequently followed Nixon after work in a threatening manner. Morgan's
notes reveal she asked Nixon if he could work with Vargas and Hernandez while her
investigation continued and Nixon said he thought he could.44

44 Despite seeing the above e-mail exchange, Corso maintained he did not recall if he
received follow up on the complaints from Nixon, Javier, and Luis from either Moore or Morgan.
Corso testified, "As I said previous with all this, I don't remember what happened next." I do not
credit Corso's testimony here, and have concluded he was informed of the results of Morgan's
investigation by either Moore, Morgan, or both. In this regard, he initiated the inquiry, and
Moore stated she was going to check with Morgan, and that she planned to discuss pro-union
talk in the warehouse when she met with Corso that day. I have concluded that she did meet
with Corso as intended and she did update him with Morgan's investigation results as Corso
had requested. Moreover, I find that Corso recalled the results of the report, although he denied
doing so at the time of his testimony. Corso's denial appeared to be part of a pattern in his
testimony in denying the obvious in an effort to deny knowledge of Hernandez' union activity at
the time of Sagastume's discharge.
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Sagastume testified she had a conversation with Ramos on November 16 or 17.45
Sagastume clarified her testimony as to the date of the conversation by stating it took place the
day before she was discharged. Sagastume was terminated the morning of November 18, and I
have concluded her conversation with Ramos took place on November 17. The conversation
took place in an office a little way from where they worked. The conversation was in Spanish at
around 3:30 to 4 p.m. Sagastume testified she was working at the computer as it was a very
busy day. Sagastume testified Ramos touched her shoulder and asked if Sagastume was tired
and she said yes. Ramos told her to get up from the computer because he saw she was very
tired and they should go out and talk. Ramos replaced Sagastume at the computer with A.
Hernandez.
Sagastume credibly testified as follows as to the conversation: Ramos said he was very
nervous and worried about the business of the Union. Sagastume said a lot of people were in
the same frame of mind, and everyone at the company was worried because that is the only
thing anybody talked about. Ramos said he just wanted this thing to be over with, whatever the
outcome. Sagastume said they all felt the same. Ramos said "What do you think of the
Union?" Sagastume said they did not have anything to do with the Union as this is something to
do with the drivers. Ramos said yes but if the Union came in it was going to affect all of them.
Ramos said the ones who were going to be affected the most in this department were Ramos
and Sagastume because they were the ones who earned the most. Ramos said the Union
would take money out of Sagastume and Ramos' checks to level the paychecks of all the
others. Sagastume said, "No, that's not true." She said she had worked with a company years
ago that had a union and that did not happen, and she did not think things had changed.
Sagastume credibly testified: Ramos asked Sagastume what she would do if the Union
came in. Sagastume said if the Union came in she would support it. Ramos said he did not
think that was going to happen. He said Corso is not going to allow that to happen. Ramos
said Sagastume should talk to her friends because Corso told Ramos he prefers to shut down
the company rather than allow the Union to come in. Ramos said he did not think this was a
good idea. Sagastume said what can we do and Ramos said what you have to do is talk to
Hernandez, and he should talk to Corso and to the other managers in the company. Hernandez
should tell them that he repents for what he has done, and Hernandez he should apologize
because they are worried. Ramos told Sagastume if Hernandez apologizes he will continue
with his job and nothing will happen. Sagastume said I do not think they are going to overlook
this and pretend nothing happened. Ramos said in any case Hernandez should talk to them
because so many things have changed with the drivers. For example, they did not like the
supervisor, and they changed the supervisor. Maybe they might change their mind and they
can continue working well. Sagastume said she did not think that was going to happen and she
did not think the drivers are going to go back. She said speaking personally for Hernandez, she
did not believe he was going to step back and undo what he did. Ramos said if the Union does
not come in each of those drivers one by one; they are going to send them to hell. Sagastume
replied that is what they thought. She said that was their problem and she had spoken to
Hernandez about this and she had told him to think it over to see the good things and the bad
things. Sagastume said she had spoken to him and that is what they have decided. Ramos

45 Sagastume initially testified the conversation was on November 16. However, Sagastume
alleged in her unfair labor practice charge the conversation with Ramos took place on
November 17. When this was pointed out to her at the trial, she testified the conversation took
place around November 16 or 17.
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said, "Well, look at all of this shit that's going on." Ramos stood up and walked away. The
conversation was around 20 to 30 minutes.46
Sagastume credibly testified that: Sagastume returned to her desk and went to work.
Sagastume thought it was strange because she did not see Ramos the rest of the day. At
around 6 p.m., Sagastume asked A. Hernandez if he had seen Ramos and he said he did not
know where Ramos was. Sagastume dialed Ramos' cell phone number two times but he did
not answer. Sagastume knew Ramos was still at the facility because his car keys were still
there. Sagastume went to the restroom at around 6:00 p.m. as it was time to go home. In the
area of the restrooms are the stairs to the upstairs offices, including Corso's. She testified all
the offices are up the stairs. Sagastume saw Ramos coming down the stairs from the offices.
Ramos said, "Oh, well, you haven't left." Sagastume replied she had phoned Ramos phone
twice and he did not answer. Sagastume said she had to go. Ramos said fine they would see
each other tomorrow. Sagastume testified the stairs lead to the offices.
Sagastume testified in a credible fashion concerning her employment history, job
functions, and as to the contents of her conversation with Ramos taking place the day before
her termination.47 On the other hand the same cannot be said concerning the veracity of
Ramos' testimony.48 Ramos testified that, during the course of her employment, Ramos
considered himself to be friends with Sagastume.49 Ramos testified he felt Sagastume was
someone he could trust and they used to talk a lot at work.
Ramos testified he heard rumors in October or November that the drivers were trying to
organize a union. Ramos testified, "I didn't pay attention to them." Ramos testified, "I heard
that the drivers were organizing a union, just that. I'm not part of that. I work in the warehouse."
Ramos testified he used to hear the "girls" on the tomato line talking about the drivers
organizing. Ramos testified, "I do my work and then home." Ramos incredibly claimed he
never received any instructions from his supervisors about talking about the Union. Ramos
testified he was never told by management what he could and could not say. Ramos testified,
"We had nothing to do with the Union. We're in the warehouse. Why should we talk about
that." Ramos testified, "We never talked about the Union." Ramos testified he never talked
about the Union with Foca stating, "No, why should I talk about it? They work upstairs and I
work below." Despite testifying that he used to frequently talk with Sagastume at work, Ramos

46 Sagastume credibly testified Ramos had previously asked her two or three times if it was
true that Fernando is messing around with the Union. Ramos knew Hernandez as Fernando as
Sagastume calls him Fernando. Sagastume testified at the time she told Ramos no because
they were trying to find out who it was, and the employees were just starting to organize.
Sagastume testified the conversations occurred on different days. Sagastume testified she had
a conversation with Ramos in the lunch room around 5 weeks before she was fired concerning
the Union. Sagastume testified Ramos said he was hearing some ugly things about this
business of the Union. Ramos said he had a relative who worked in a place that had a union
that was not good for anybody. Ramos said the Union would take money out of their checks,
and they were going to equalize the salaries taking money out of their paychecks. Ramos said I
am your supervisor, if you want to ask for a vacation or anything like that I will grant it to you at
any time, but if there is a union, they do not want it, they will not grant it to you.
47 I have also credited Sagastume's testimony as to her other conversations with Ramos
about the union campaign as described in this decision.
48 Ramos was an argumentative witness giving the perception he had something to hide.
49 Ramos testified he knew Sagastume was married to Hernandez, and that Sagastume
referred to him as Fernando.
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incredibly claimed he never talked to Sagastume about the drivers organizing a union. Ramos
testified he never spoke to Sagastume about Hernandez and the Union. Ramos testified
Hernandez was a driver and all the drivers were involved in that. Ramos testified, "I never
thought he would do so, but he was involved with that." Thus, Ramos admitted he specifically
knew of Hernandez' union involvement. Ramos testified he thought the executive managers did
not want a union at the company. However, Ramos testified he tried to avoid talking about it,
and he was not interested as to whether a union came in.
At the time of the union campaign, Ramos was supervising a department that contained
about 40 employees working for CSPC. There was an organizing campaign going on amongst
the 200 drivers at CSPC. Ramos claims that he received no training concerning the union
campaign was undercut by Corso who testified his managers and supervisors received training
as to what they could and could not say concerning the union to the employees. In fact,
Respondent argued in its February 15, 2011 pre-hearing position statement that Ramos never
questioned Sagastume about her husband's union activities because "all supervisors and
managers received training on what they legally could not say or do in relation to the union
organizing effort."50 Indeed Foca who worked for ECFC, not CSPC, claimed he received such
training. The memo Corso received from the outside consultants to handle the union campaign
called for supervisory training, and advocated a proactive stance amongst the supervisors in the
conversations with employees concerning the Union. In fact, Sagastume credibly testified
Ramos summoned the tomato department employees to attend a meeting with Corso where
Corso spoke out against the Union. Thus, even though the Union was not seeking to organize
the tomato department employees, Respondent purposely brought them into the campaign.
Against this backdrop, Ramos' claim that he received no training and never said a word about
the Union during the course of the heated campaign is simply not credible. Moreover, Ramos
did not appear during the course of his testimony as someone who would sit idly by and not
comment to anyone concerning the events of a hotly contested union campaign that were taking
place around him. I do not credit Ramos' claims of silence about the topic, or of his claim that
he did not speak to or question Sagastume as she credibly testified. As set forth above, I have
fully credited Sagastume's account of her conversations with Ramos concerning the union
campaign.
On Wednesday, November 17 at 8:32 p.m. Foca sent an e-mail to Corso copied to
Zeleznik, Jay Krupin, an attorney in Respondent's law firm, and to Moore the subject of which
was tomato line organization realignment. The e-mail reads in part:
After considerable analysis and review of the existing Coastal management team, it was
determined that the structures in place at ECFC were best suited to operate the
tomato/repack operation. Dave (Zeleznik) began the management transition several
weeks ago. At this point we have concluded the transition and analysis of the
operations. We will be implementing the following changes tomorrow morning:
Promotion of three team members to line the positions similar to the ECFC
value stream leaders in place (repack, tomato repack, & tomato sort)
Elimination of the repack administration position (with duties reassigned to
existing ECFC admin team)
Implementation of ECFC's pay scale which will result in some increases in
wages and no decreases

50 See GC Exh. 30, page 5 fn. 5.
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The email stated Zeleznik will be announcing these changes in a group meeting tomorrow
morning. Foca testified the implementation of the tomato line transfer took place on November
18. Zagastume was the only one of about 40 tomato department employees who were
terminated as a result of the department transfer. Among those transferred some received pay
increases and some were promoted and received pay increases.
Sagastume testified she attended a meeting on November 18 in the human resource
office. She credibly testified as follows: Morgan conducted the meeting which was attended by
two other human resources personnel, one of whom served as a translator. The meeting
started around 8:00 a.m. Sagastume arrived at the normal time for work and Ramos told her
Zeleznik had called her and she should go upstairs. When Sagastume went upstairs Zeleznik
was not there. Morgan told Sagastume to come in and sit down. Morgan asked her if she knew
why she was there and Sagastume said she did not. Morgan told Sagastume they had another
person to do Sagastume's job. Sagastume said that was fine they should train the person
because sometimes it is very difficult. Sagastume said in those days they were very busy and
she told Morgan that would be a help. Morgan told Sagastume the position was that of an
accountant, that they have someone with that type of experience and the person is going to do
the job. Sagastume asked what Sagastume was going to do and Morgan said she did not know
and therefore Sagastume was fired. Sagastume thought this might be a joke because she was
not expecting it. Morgan told Sagastume she needed to sign a document that Morgan was
holding, and if she signed the document the company would pay Sagastume four weeks of
vacation. Sagastume told Morgan she was not going to sign anything, and they could keep the
four weeks of vacation. Sagastume told Morgan to give her the papers so she could take them
with her and Morgan said she could not give them to Sagastume. Sagastume grabbed the
papers from Morgan. Sagastume said she needed to pick up her things, and Morgan said you
cannot go back to the work area unless you are accompanied by one of them as that was the
company rule. Sagastume became upset and told Morgan she had never stolen anything so
she should be able to go down to her workplace. Morgan said definitely not you cannot go
down. Sagastume called a co-worker who retrieved Sagastume's purse and Sagastume took
the purse and left through the door they told her. Following the meeting, Sagastume repeatedly
called Ramos, but he would not return her calls. The agreement Morgan asked Sagastume to
sign is entitled, "Severance Agreement." It states the parties to the agreement are Sagastume
and CSPC.51 Morgan sent an e-mail sent on November 18 at 9:02 a.m. to the HR department
and payroll, and with a copy to Vasquez, the driver's supervisor. Morgan states in the e-mail
please disable Sagastume's tomato line building and system access immediately. Morgan
states she may not enter CSP property without a security or HR escort. It states, "Her husband,
Driver, Luis F. Hernandez is still employed with us, so we have reason to believe she may
return." The subject of the e-mail was "termination of employment" and it was labeled of high
importance. Ramos was not copied the e-mail.
Sagastume testified she would not be able to work in a position that required her to
write, read and speak mostly in English. Sagastume did not interact with the customers as part
of her job. She was earning $21.67 per hour at the time of her termination. Sagastume
sometimes helped other employees in the repack area. When she worked in repack she earned
the same amount per hour as when she worked on the computers. Sagastume testified it took
her 15 years with the company to reach her hourly rate. Sagastume testified A. Hernandez and

51 During the November 18 meeting with Morgan, no one told Sagastume how much money
they were offering her to sign the termination papers, but that it would be the equivalent to 4
weeks vacation pay. Sagastume testified she did not receive any severance pay, but, following
the meeting, she did receive vacation pay that she had previously earned.
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Perdomo worked on the reports for the computers when Sagastume was not present.
Sometimes Perdomo would also help her with the computer work when things were really busy.
Sagastume did not do any of the computer work for the tomato line, only repack. Ramos trained
Sagastume on the spread sheets she used. She was not trained on other computer programs
or other spread sheets.
Sagastume recalled the addition of the Giant Foods business to the tomato department.
It made the tomato line and repacking area busy due to increased work. She testified the Giant
business started around the beginning to middle of October. Sagastume did not know Jeremy
Clark, but did know Zeleznik. She testified when the Giant business started to get busy,
Zeleznik started coming to the tomato line and repacking area. Sagastume testified the Giant
business was just tomatoes, so it was just impacted the tomato line, not repack. Sagastume
testified she thought Respondent hired four additional employees to work on the tomato line due
to the Giant business. A list of employees employed in the tomato line department who
Respondent asserts were transferred from CSPC to ECFC on November 18 includes about 40
employees. As of November 17, the vast majority were earning between $7.80 and $9 per
hour. The list included Perdomo showing a March 8, 2004 date of hire earning $18.35 an hour;
and Jose Hernandez (referred to herein as A. Hernandez) with a October 30, 2007, hire date
earning $15 an hour. The list does not include Ramos the supervisor. The only employee who
was not transferred on November 18 was Sagastume. Sagastume was listed with a September
1, 1997 hire date. She was by far the employee with the greatest seniority in the department.
The second most senior employee was hired in 2003.
D. Events following Sagastume's November 18 termination
Clark testified two union meetings were held in Hernandez' home in December, and he
was the only employee in whose home union meetings were held. Clark did not recall the
specific dates of the meetings, stating they were get out the vote meetings leading up to the
election. Clark testified attendance at the Union's meetings began to decrease around mid-
November coinciding with the termination of Sagastume.
Corso and Foca each claimed that on Friday, December 10 they first learned Hernandez
supported the Union. They testified they were going to lunch and saw Hernandez distributing
union literature outside Respondent's facility.52 On December 11 at 6:44 a.m. Caplinger sent an
e-mail to Corso concerning a conversation she had with a driver named Miller. Caplinger stated
Miller said he feels the other drivers should give Corso a chance to fix their pay, and if they do
not like it they can always bring the Union in later. Miller mentioned "Fishy" made $110,000 last
year and might feel it was unfair that "we make billions and don't pay more." Miller said Fishy
was fighting for principle, and Miller wanted to know what Caplinger did to "piss" him off so bad
that he was not happy. Corso testified Hernandez was commonly referred to as Fishy in the

52 Corso and Foca's testimony here is contradicted by Respondent's pre-hearing position
statement which states they did not learn of Hernandez' union activity until he was named as
election observer for the Union. The letter naming Hernandez as an election observer was
faxed to Respondent on December 14. The position statement states that prior to that time
management did not know Hernandez was a union supporter and in fact they thought he was
against the Union. (GC Exh. 30, p. 5). The variance in these stories evinces a shift in
Respondent's position. Regardless, as set forth in more detail in the Analysis section of this
decision, I find that Corso and Foca were aware of Hernandez strong pro union stance prior to
Sagastume's termination.
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work place.53 Hernandez identified a December 13, letter to Corso. The letter is signed by
Hernandez, Vargas, and 11 other employees stating the undersigned employees were part of
the Union's organizing committee. On December 14, the Union sent Respondent a fax
identifying Hernandez as the Union's sole observer at the December 17 election.
On December 16, the day before the election, Hernandez was given a route assignment
to Virginia Beach. He left to do the route run at 2:30 or 3 a.m. but did not return home until 10 to
10:30 p.m. that evening. Hernandez identified photographs he took that day. He testified they
show that 25% percent of the boxes in his load were broken in that they were cut with a knife.
Hernandez testified he called his supervisor Vasquez and told him the boxes had been cut and
sent him the photographs. Vasquez stated he did not understand why so many boxes were
broken or why they had given Hernandez so many stops.54 Hernandez testified when he picked
up a cut box, the produce fell and a lot of times he had to pick up the whole load. Hernandez
finished the route at 5:30 p.m. in Virginia Beach and he arrived home at 10:30 p.m., giving him
about 6 hours before he went back to the Respondent to serve as an observer for the election
beginning at 3 a.m.
The election was held on December 17, from 3 a.m. to 7:30 a.m., and 9:30 a.m. to 12:30
p.m. at Respondent's facility. Corso testified that on the day of the election, Foca was
responsible for being out front to escort the NLRB agent onto the property based on a request
Corso made to Foca on December 16. Foca testified he arrived at work on December 17 at 1
a.m. Foca's usual start time was 7 a.m. Foca testified he came in early to support his
management team concerning the election. Foca testified as a board member Foca wanted to
be present. Foca testified it was "A very tough, emotional day." Foca testified he spent the
morning with the guard in the parking lot at the guard shack. Foca testified he was not
instructed to do this, that he did it on his own. However, Foca testified Corso knew Foca was
out there. Foca testified he was not reporting what he saw to Corso. However, when shown an
e-mail correspondence between himself and Corso, Foca then testified, "Okay. I was letting him
know what I saw sitting out front of our building -- ".
The December 17 tally of ballots shows there were 41 votes cast for the Union, and 136
against.55 On December 18, Corso sent an e-mail including the following remarks:
In the end we crushed them. This whole thing cost a lot of money, a lot of disruption and
a whole lot of friction. But we won, decisively.
Many didn't understand unions before this started. They do now. And they voted
overwhelmingly against it. "Not in our house".
My focus now shifts from "not now" to "not never".

53 The tone of Caplinger's e-mail using Hernandez' nickname to Corso suggests she was
aware that Corso knew of Hernandez' pro-union stance, and that it was well known at
Respondent's facility.
54 Hernandez testified every day he used a different truck and he never knew his route in
advance. Hernandez testified the routes were assigned by Vasquez, and Vasquez' assistant.
Hernandez testified they, along with night supervisor Justin Callas, knew the truck Hernandez
was going to use.
55 The Union did not file any objections to the election or any unfair labor practice charges.
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E. The testimony of Respondent's witnesses concerning
Sagastume's termination and the transfer of
the tomato department from CSPC to ECFC
Corso is the president and CEO of CSPC and CSI. In January 2010, the tomato
department, as run by CSPC, reported to Stalio Callas who reported to Moore, vice president of
operations of CSPC. Moore reported to Corso. The tomato department had essentially two
large areas. It had tomato lines in which the employees sort tomatoes by size, color, and
ripeness. The repack area is also part of the tomato department. It takes 20 pound cases of
produce and breaks them down into smaller units typically four or five pound packages to meet
customer requirements. Corso testified the tomato department was the only operation at CSPC
that was a manufacturing operation. Corso testified one of the tests used when talking about a
manufacturing company is you are creating value added in referring to the ripening process in
the sorting of tomatoes. Corso testified the tomato department at the time of its acquisition from
L & M was more in line with the ECFC side of the business since ECFC is a manufacturer while
CSPC is a distributor.
Corso testified as follows: On November 18, ECFC took over the management of the
tomato department from CSPC. Earlier in 2010 there was an opportunity to do the retail tomato
business for Giant Foods. Corso started hearing in July concerns by Foca, the president and
CEO of ECFC, about the tomato department and a desire to take it over by ECFC. Corso
thought this made sense because he did not think the tomato department should be part of a
distribution business. Foca stated he thought the business could be better managed by himself
and Zeleznik than by CSPC. Corso told Foca he needed to talk to CSPC officials Lambros and
then Moore to get them on board and if they could work it out great. Sometime in September,
Foca told Corso that Moore agreed to the department transfer, and then Corso talked to Moore
about it. The three of them then met in an informal meeting concerning the matter. Corso held
partnership meetings at 8:30 a.m. on Fridays. The transfer of the tomato department was a
topic of discussion at these meetings in July and August. Notes are not taken at these
meetings. Corso had final approval of the transfer. The first delivery of tomatoes to Giant was
around October 14 or 15, and the initial deliveries did not go well. Corso received feedback
from Foca, Lambros, and Tom Brown. Foca said the Giant deliveries were not meeting Giant's
specifications. They were struggling getting the product out on time. Consequently, Foca felt
there was an urgency to accelerate the transition of the tomato department from CSPC to
ECFC. Corso told Foca to do what he had to do as it was an important piece of business.
Corso testified the next time he heard from Foca about the transfer of the tomato line
was on Wednesday, November 17 when Corso received an e-mail at 8:32 p.m. The e-mail
included the elimination of the repack administrative position which Sagastume had occupied.
Corso testified he was not involved in the decision to elimination the position and he just knew
what was written in the e-mail which was to reassign the duties to the existing ECFC
administrative team. Corso testified the decision to eliminate the repack administrative position
was Foca's decision. Corso testified he did not know the position was going to be eliminated
before he received the November 17 e-mail and it was never discussed with him. Corso
testified a day or two after he received the e-mail, Corso asked Foca what lead to his decision to
eliminate the position, and Foca said they did not need the position, it was completely
redundant. Corso did not know who was working the position at the time he received the
November 17 e-mail, but he subsequently learned it was Sagastume from Foca at the time of
their conversation. Corso testified prior to November 17, he had no personal knowledge that
Hernandez supported the Union and Foca never told Corso the elimination of Sagastume's
position was motivated in any part by her husband's support of the Union.
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Foca testified in the tomato department there is an area called manager's desk/admin
area which contains three desks, and three computers, and two or three phones.56 Foca
testified this is the area where Ramos, Perdomo, and A. Hernandez sit. They were the
manager and two assistant managers of the tomato department at the time of the hearing. In
the fall of 2010, prior to her termination, Sagastume would also sit there and perform
administrative work.
Foca testified Ahold Foods (Ahold) is the largest customer of ECFC. He testified Ahold
is the holding company for Giant Foods. Foca testified Giant in Landover gave CSPC the
opportunity to provide whole tomatoes at the retail level. Focal testified CSPC had never
engaged in that type of activity in terms of sales at the retail level. However, ECFC was
accustomed to working with retailers since half of ECFC's business is at the grocery store level.
As a result, Foca testified he led a team consisting of Zeleznik, the general manager and vice
president of ECFC, and Jeremy Clark in analyzing the tomato department operations. Foca
testified the possibility of CSPC obtaining the Giant tomato business first materialized in April.
Foca learned about it through conversations with Giant buyers. Foca testified he argued for the
transfer from CSPC to ECFC because he was concerned that under the CSPC system of
management they were going to mess up a large opportunity with ECFC's number one
customer. Foca argued it was not getting the required attention and CSPC did not have the skill
set to deliver a retail product as Giant expected. Foca testified he was concerned because it
was ECFC's customer and the account involved the reputation of ECFC's salesperson.
Foca testified the first time he considered moving the tomato department to ECFC was
right after July 4. He testified they had started sending Giant some samples in late June, and
once they started receiving feedback it occurred to him that he needed to help the tomato line.
They expected to have their first shipment of tomatoes to Giant in August, but internal issues
with Giant delayed the business. Foca identified an e-mail exchange between himself and
Jason Lambros, vice president of purchasing of CSPC, dated July 6. The e-mails set up a
meeting between Foca and Lambros on July 7. Foca testified he wanted to talk with Lambros
about why Foca believed ECFC could do a better job managing the tomato department. Foca
testified that, as of July, they had not made decision to transfer the tomato department. Foca
testified he also began discussing the transfer with Moore, the vice president of operations for
CSPC, in July. He testified the transfer discussion would have come up at their weekly Friday
executive meeting. He testified Foca, Lambros, and Moore attended that meeting. Foca
testified that Corso generally attends the Friday executive meetings and the transfer of the
tomato line was discussed with Corso during the meeting. Foca testified Corso told Foca and
Moore to work it out between them and to let Corso know what was right for the company.
Foca testified that by September, Moore agreed that ECFC should run the tomato
department. Foca testified Moore said she would inform Stalio Callas, who at the time was in
charge of the tomato department, and let Callas know Zeleznik would start working with Ramos,
the department supervisor, and that eventually the department would be turned over to ECFC.
Foca testified the final decision was made by himself and Moore in September a few weeks
before they had Giant's first tomato order. Foca testified that at the next Friday meeting they let
Corso know they had come to a decision and roughly how they envisioned the department
working. Foca testified they envisioned Ramos reporting to Zeleznik, and ECFC would take
over the management of the line, and they were going to implement ECFC's value stream

56 Foca took a recent photograph of the tomato department. He could not identify a phone
on the desk, or credibly testify to a certainty that he saw one there. I do not find that it has been
established on the record that there is or ever was a on phone on that desk.
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model of operation for the department and see where they had low efficiencies before they
implemented the transfer.
Foca testified Zeleznik started becoming involved with the tomato department in
September when Moore and Foca agreed the department was to be transferred. Foca testified
Zeleznik was told to the model the tomato department design after that of ECFC system of
operation. Foca testified Callas was also told Zeleznik was going to be taking over the
operation, not immediately, as they needed to work through the plan. Foca testified they
delivered their first order of Giant tomatoes on October 14. Foca testified the delivery was
under CSPC. However, Foca testified the Giant account was managed by ECFC because it
was their relationship with the customer. Foca testified that, as of October 14, all the employees
on the tomato line continued to work for CSPC and CSPC sold Giant the tomatoes. Foca
testified Zeleznik was involved in the operation of the tomato department in October, but
officially he started managing the operation on November 18, the date the tomato department
was formally transferred to ECFC. Despite the November 18 transfer of the tomato department
to ECFC, Foca testified the department remained, at the time of the hearing, under CSPC's
profit and loss statement, and the tomato department supervisors and employees continued to
be paid by CSPC.
Foca testified Giant's initial order of tomatoes shipped on October 14 by CSPC was for
500 cases. Foca estimated that CSPC received the order at least at least a week prior to the
shipment date. Callas was managing the tomato department at the time, but it was not Callas
primary focus so Ramos was basically running the department. Foca testified that Giant
business was a 5% increase in their volume with specs the tomato department had never seen
before. Foca testified in September Ramos did not officially start reporting to Zeleznik, but
somewhere between September and October Ramos knew Zeleznik was going to be his new
boss. Callas had been basically out of the picture beginning in September and Ramos
unofficially was reporting to Zeleznik in September. Foca testified Zeleznik was basically
running the operation based on the new client and new standards in September. Zeleznik
officially took over on November 18, which was the day they made the announcement to the
company of the department transfer, the elimination of Sagastume's position and three
promotions to lead persons within the tomato department.
Foca was involved in an e-mail exchange on October 29, with David Devries, a financial
analyst with a Coastal Sunbelt e-mail address, to the size of the projected Giant business for
2011. Foca estimated Respondent would process 1,800 cases of finished tomatoes per week
for Giant. Foca testified that this amount of tomatoes for Giant is about 10% of the tomatoes
that go through the tomato line on a weekly basis. Foca testified it is a very significant volume.
He testified the other 90% is distributed between approximately 1500 to 2000 customers. On
November 3, Clark e-mailed Foca a chart Clark created containing pictures demonstrating the
proper size, color, and packaging for tomatoes that met Giant's specifications as a visual aide
for tomato department employees.57

57 Foca initially testified he received the chart from Clark on September 24. However,
Respondent later produced the actual e-mail from Clark to Foca showing the chart was sent to
Foca on November 3. Foca testified that, as of November 3, the tomato department was not
doing very well in meeting Giant's specifications which was why they developed the chart. Foca
testified Giant would call about complaints concerning the tomato department. Foca did not
recall any e-mails from Giant about it, or remember receiving any written complaints. He
testified the time frame of the complaints was from July through October 14 as part the sampling
process for Giant. Foca testified Giant had very defined specifications for their tomato in terms
Continued
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Foca testified it was his decision to eliminate Sagastume's position and the decision was
made in October. He did not know the date in October. Foca testified he talked to Zeleznik on
Friday, November 5, saying they were going to have to implement the tomato department
transfer and they had already worked out all of the plans. Foca stated he told Zeleznik Clark is
on vacation in two weeks, that Foca was out next week in New York, and when Foca returned
from New York he wanted the transfer implemented. Foca testified they needed to promote
three people and get the structure going. Foca testified Zeleznik agreed to put the final touches
on the transfer and when Foca returned Zeleznik would have a communication plan ready.
Foca testified they started servicing the Giant account on October 14, but at that point they had
not decided to eliminate Sagastume's position. Foca testified they were discussing the
possibility of it and they decided to do it sometime before November 5 because as of November
5 their final plan came together. He testified in the plan three people were also being promoted.
Foca testified he discussed the decision to eliminate Sagastume's position with Zeleznik.
Foca testified as follows: They did not officially transfer the tomato department to ECFC
until November 18 because they had to determine if there would be two or three value streams
as per the ECFC style of operation. Zeleznek and Clark had to perform certain analytical work.
They looked at Sagastume's position and concluded there was an opportunity to be more
efficient because ECFC already had a nine person admin department who were well versed in
costing product. The ECFC admin department could easily absorb what looked to be the 15 to
20 hours of administrative work Sagastume performed.58 Foca testified they could send
someone down from the ECFC administrative department to physically work at the tomato
department and still complete the customer service work the ECFC admin employees were
doing. The ECFC administrators worked under Zeleznik. The ECFC admin department
included a manager and eight employees. The ECFC administrators answered phone calls
from the customers and they input customer orders. They also handle customer complaints.
The ECFC administrators do the daily cost for the product ECFC produces using a complex
costing model. Foca testified most of their customers speak English and the costing the ECFC
administrators performed is more complex than that performed by Sagastume. Foca testified
they determined Sagastume did not have the skills needed to work on the ECFC customer
service team answering the phones and learning the more complex systems. However, the
nine ECFC administrators were well suited to take over Sagastume's spreadsheet. He testified
_________________________
of sticker placement, color, weight of the case, how many tomatoes would make up a 10 pound
layer, sugar content, and shelf life. Foca testified when CSPC had trouble meeting the
specifications, he assigned Clark to focus on this project. Foca testified it was in July when they
started doing actual samples for Giant.
58 Foca testified that, prior to the November 18 transfer of the tomato department to ECFC,
Clark spent extensive time watching the tomato line, and timing each process, including how
much time was spent in administration. Foca testified he learned through Clark that Sagastume
spent 15 to 20 hours a week on administrative duties. Foca testified Clark began the study in
July and completed it in October. Foca testified, following her administrative duties, Sagastume
would primarily work on the repack line, and occasionally on the tomato line. Foca received no
written report analyzing Sagastume's work in the repack admin repack position. He testified he
never sat in with Sagastume to see the work she performed. The only way Foca knew how
many hours Sagastume spent in front of a computer was Zeleznik and Clark. Foca testified
that, as of November 5, they understood the work Sagastume performed and there was no need
for an analysis of her work. Foca testified, "We understood it and we understood that it could fit
in nicely into our existing admin. team." Foca testified Sagastume's high hourly rate was one of
the reasons her position was eliminated.
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the intent was to improve the spreadsheet and move it into the ECFC complex system to
increase the level of accuracy. Foca testified the ECFC administrative team had to cover the
phones for customer service 16 hours a day. Foca testified the phones could have been
transferred downstairs to the tomato department, and they could do that job while they were
completing the spread sheet in the tomato department. Foca testified it was his decision to
eliminate Sagastume's position. Foca used information provided by Clark and Zeleznik in
making that decision. Foca testified he stated to them that they had nine people in the admin
team at ECFC that could do Sagastume's work and who are better suited to do the work
because they work with a more complex costing model that they wanted to eventually move to
the tomato line.
Foca testified he had the authority to eliminate Sagastume's position without discussing
it with Corso. However, he did inform Corso right before they implemented it. In this regard,
Foca sent Corso e-mail on the evening of November 17 summarizing the department changes
to take place the morning of November 18, including the elimination of Sagastume's position.
Foca testified that he did not discuss the matter with Corso before he sent the e-mail to him.
Foca testified Corso had no knowledge of what was going on concerning Sagastume. Foca
testified he had discussed the department transfer with Corso and Corso knew they were going
to implement ECFC model. Foca testified he knew 2 to 4 weeks in advance Sagastume's
position was going to be eliminated. They gave her no notice. He testified they told Sagastume
at the same time they announced it to the company and they offered her a severance package
in lieu of notice. Foca testified he has not hired any new employee to replace Sagastume.
Foca consulted Zeleznik and Clark prior to making the decision to eliminate Sagastume's
position. Foca testified they agreed and Zeleznik also had to get confirmation from the ECFC
administration manager that they could handle the work load. Foca testified they could. Foca
testified Hernandez' union activities played no role in the decision.
Foca testified several weeks prior to the November 18 department transfer, Zeleznik
started talking to Ramos and "started the transition of, hey, here's what's going to be happening.
You know, this is value streams and understanding that, and really started to take ownership.
Dave started taking ownership for that line." Foca testified Ramos did not participate in the
decision to eliminate Sagastume's position. Foca testified it was not Ramos' level of expertise.
Foca testified it was more Zeleznik's level looking whether it could work within ECFC
administration. However, Foca went on to testify that Ramos was definitely consulted about the
decision. Foca testified, "but it wasn't -- he wasn't any decision maker necessarily." Foca
testified Zeleznik would have talked to Ramos as he was going through all of these different
moves telling Ramos this is what they were are looking at doing. Foca testified prior to
November 5, Zeleznik would have had conversations with Ramos. Foca testified "that was the
transition of bringing Julio in the loop." When the questioning resumed by Respondent's
counsel, Foca, as if hedging his bets as a witness, testified, "I do not know that for sure." Foca
testified, "That's what I would expect to have happened, but Dave Zeleznik would be a better
person to talk to him. I wasn't in those conversations." Foca testified, "I know that Dave had
conversations with Julio about the transition that was going to take place and about the model
we're putting in place. And maybe I'm wrong for speculating, I would think that he would talk to
him about the entire plan." Foca testified he would have thought Zeleznik would have spoken to
Ramos about the elimination of Sagastume's position for a smooth transition. Foca testified he
would have thought the conversation would have had to take place, but he was not sure of the
timing of when Zeleznik talked to Ramos about it, or the fashion he talked to him. When asked
if Zeleznik had a reason to keep it a secret, Foca then testified they did not want to get too much
information out. As a company they try to keep some things tight, "so we have a chance to
have face-to-face conversation with people before it starts to leak out." Foca testified he at first
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testified he assumed Zeleznik would have talked to Ramos about the elimination of
Sagastume's position, but there were "reasons that I can't be 100 percent sure."
Foca testified the company did not inform Sagastume of her termination until November
18 because Foca had been away in New York the prior week, and he wanted to be present
when the announcement was made. Foca wanted to make sure the senior executive team was
there to support Zeleznik. Foca testified this was the main reason for the delay. Foca testified
Respondent's waiting until Thursday November 18 to implement the decision as opposed to
implementing it on Monday November 15 would have been just the operation of the business
not getting to it the first thing on Monday.
Foca testified he returned to his office at Respondent's facility from New York for part of
the day on Friday, November 12. Foca worked at his office from Monday November 15 to
Thursday November 18. Foca left for Rochester, New York on Thursday evening November 18.
Foca testified they implemented the department transfer on November 18. Foca testified he sat
down with Zeleznik and said today we have got to do it. He testified Sagastume was not
terminated for improper conduct or performance, they just decided to excess her position. Foca
testified he had finalized the decision to terminate Sagastume before he left for New York on
November 5, which was the Friday he spoke to Zeleznik. Foca testified he had made the
decision prior to the November 5 conversation. Foca then testified the decision was made
some where between mid-October and the first week in November.59
Foca testified that on November 18, the supervision of the tomato department was
transferred from CSPC to ECFC. Ramos, the manager of the tomato department, now reported
to Zeleznik. However, Foca testified the employees and supervisors in the tomato department,
following the November 18 transfer, were still on CSPC's payroll although they are reporting to
ECFC management. Foca testified CSPC still pays for the rent for the space used by the
tomato department. When the tomato department went to ECFC, the personnel retained their
CSPC seniority dates. Their seniority, benefits, and pay for most of the employees did not
change when they went to ECFC. The only change is they are reporting to Zeleznik who
reports to Foca. Prior to that, they were reporting to Callas, who reported to Moore. Callas
remains employed by CSPC. Foca testified that above the hiring level, ECFC has a different
pay structure than CSPC. ECFC has a supervisor band, an assistant manager band, and
employees who are line leaders. He testified CSPC does not have that structure. Foca testified
that when the tomato department was transferred to ECFC they applied the ECFC model to the
department. They promoted three employees to the position of line lead, one over the Giant
tomato line, one over the general tomato line, and one over the repack line. Foca testified the
pay raise for the line leads started on November 18.
Foca testified Sagastume's job before her position was eliminated was costing the
spreadsheet. This means when the product comes over to the tomato department there is an
original cost of the product. Then the spreadsheet adds how much labor in sorting it took to get
the product to the next stage. He testified if there are tomatoes thrown away, the cost would be
added into the finished product, which is the called the yield. Then there would be some

59 Foca testified they considered placing Sagastume in a different position with ECFC.
However, in her situation at her skill level they could not place her as an employee because it
would not match her pay rate. Foca testified the position Sagastume would best fit would be
paid $7.50 to $8 dollars an hour on their production line or the tomato line. However,
Sagastume was making $21.67 and the company had a philosophy against offering someone a
lesser paying job. Foca testified they make only lateral moves or promotions.
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paperwork printed in the beginning of the day that would show inventory levels and help guide
them on what to make that day. Foca testified, in the first 2 or 3 months following Sagastume's
termination an admin employee from ECFC came and sat at one of the tomato department
desks and took over Sagastume's admin duties using the Excel spreadsheet that had been
used by Sagastume. However, Foca testified by the time of the unfair labor practice hearing in
July 2011, tomato department managers Ramos, Perdomo and A. Hernandez had assumed
Sagastume's duties. Foca testified the admin employee they had working with the repack line
for a few hours a day had been reassigned to work in a labeling operation. Foca testified at the
time of her transfer, the managers stepped up and said it was not much work and they could do
it themselves because they had made some changes and streamlined the process.60 Foca
testified the Excel cost sheet Sagastume used is still being used by the tomato department, and
Ramos, Perdomo, and A. Hernandez are using the cost sheet.
Foca testified the tomato line still uses Excel to do administrative work, as does repack.
Foca testified ECFC software has never been used in the tomato department, and Ramos,
Perdomo, and A, Hernandez have never been trained on ECFC software. Foca testified it was
determined the ECFC software was not needed due to the simplistic nature of the information
used in the tomato department. Foca testified Ramos, Perdomo, and A. Hernandez will never
need to learn the ECFC software unless they make a change in the tomato line. Foca testified
he thought the administrative work at issue takes about 15 to 20 hours a week. Foca testified
the work has not changed much since Sagastume's termination. Foca testified Ramos,
Perdomo, and A. Hernandez do not take direct calls from Giant. Foca testified you do not have
to take calls to do a costing sheet. Rather, you have to take calls to work in the ECFC admin
team. Foca testified no one has to take a call from a customer to do the work in the tomato
department. Foca testified at the time he eliminated Sagastume's position he expected the
team of nine admin that sat upstairs at ECFC to do her work. Foca testified the tomato
department management team does the job today.61

60 Foca testified they were going to move someone else to the tomato department to do the
work, but the managers said they could handle it. Foca testified the person who was doing it for
2 or 3 months came from the ECFC admin team and she was earning about a $10 to $12 an
hour when she did the work Sagastume performed. Foca testified at the time, she was also
answering phones, taking orders, working on costing at ECFC. Foca was not sure if she was
taking calls at the tomato department desk. Foca testified the person may not have verified
inventory as Sagastume had done. Foca testified she worked part of her day in the tomato
department and then she came back upstairs to the ECFC admin area. She did not work on the
tomato department production lines. Foca testified the employee speaks English, and some
Spanish. Foca testified now it is just the three supervisors doing the inputting that Sagastume
had performed. Foca testified he is not claiming Sagastume could not do job as it currently
exists in the tomato department. Foca testified that as of the time of the hearing none of the
nine ECFC administrative employees sat at the tomato line desks. Foca testified the Giant
tomato orders do not affect the work done on repack, which was performed by Sagastume.
61 Foca testified the pay scales were changed in the tomato department to be a similar
model as ECFC pay scales. Foca testified Ramos, A. Hernandez, and Perdomo fit the model of
value stream managers, which at ECFC are salaried positions. Ramos was already a salaried
worker, and A. Hernandez and Perdomo were changed from hourly paid to salaried. Foca
testified they were not changed to salaried personnel at the time of the department transfer.
Rather, they were converted to salaried personnel at the time of their annual review effective
February 1, 2011.
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Foca testified he spoke to Ramos about the Giant tomatoes extensively in July, August,
September, October, and November because Ramos was directly involved in trying to help get
the specifications right. Foca testified, "The day before the transfer, I most likely did not talk to
him because we were rolling it out on the 18th and I don't--Julio may not have been--" Foca
testified he talked to Ramos about Giant tomatoes, but Foca personally got very little input from
Ramos about the transfer. Foca testified, "Some ideas but more or less the team, Dave and
Jeremy were down there working with him."
Zeleznik testified he is employed by and oversees ECFC. Zeleznik reports to Foca. On
the ECFC side, Zeleznik has four value stream managers who report to him, including an admin
manager. Zeleznik testified he directs the tomato department which includes the tomato line
and repack line. Ramos, A. Hernandez and Perdomo report to Zeleznik. Zeleznik testified his
role in the transfer of the tomato department to ECFC was to understand the processes and
look for opportunities for efficiencies, increased productivity, and for possibilities of expansion.
Zeleznik initially testified he was first involved in discussions of the transfer of the tomato
department to ECFC around mid-September. The discussions were with Foca, with Clark in the
room. Zeleznik testified Foca stated he had preliminary discussions with CSPC officials Moore
and Lambros about ECFC possibly taking over the management of the tomato department.
Zeleznik testified it was also discussed that they had business coming from Giant Foods which
was a repack of tomatoes to be packed in the right size and colors in display ready boxes and
this was going to be a significant volume of business. Zeleznik testified the amount of Giant
business coming to the tomato department was the major reason it was being considered for
transfer to ECFC. Zeleznik testified Clark had spent some time at the tomato department during
the summer and he was involved in sampling items to send to Giant to make sure their samples
met Giant's specifications. Zeleznek testified as the project manager, Clark saw opportunities
for better efficiencies using what Zeleznik termed as lean manufacturing. He testified in
September when it was decided to move forward as Giant business became imminent, it was
decided ECFC should take a look at seriously directing the department. Zeleznik testified the
initial samples for Giant were hit and miss. He testified it was very important for Giant to have
an exact size tomato in a pretty tight range of color. Zeleznik testified in September he was very
positive that the transfer was going to happen after meeting with Foca since Foca had spoken to
Moore and Lambros.62
Zeleznik testified he thought the transfer officially took place on November 17. Zeleznik
testified between mid September and November 17, Zeleznik started spending daily time at the
tomato department instead of just deploying Clark, who had been there from time to time to
oversee the Giant samples. Zeleznik started spending daily time there to learn the operation.
Zeleznik also began reviewing sales and profit and loss numbers. Zeleznik testified he was
hoping to see improvements, labor cost reductions, and to open up additional capacities.
Zeleznik identified Foca's November 17 e-mail stating the tomato department was officially
coming to ECFC under Zeleznik's management. The announcement included the promotion of
three team members to line lead positions similar to the ECFC value stream leaders in place

62 There was a shift later on in Zeleznik's testimony as to the transfer of the tomato
department. As set forth above, he first testified they first discussed it in mid-September, and
he phrased his testimony that he knew it was likely to happen at that time. However, Zeleznik
later testified Foca had told Zeleznik in September the decision to transfer the department had
already been made. Zeleznik then claimed for the first time that they had probably talked about
the transfer was in random conversations prior to September. Zeleznik testified he thought he
remembered these conversations starting in July.
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(repack, tomato repack, and tomato sort), and the elimination of the repack administration
position with duties reassigned to the existing ECFC admin team. Zeleznik testified each line
within the tomato department needed to establish supervisors to run the day to day operations
as the reason of the promotion of the employees to line leaders. Zeleznik testified the three
new line leaders were Maria Rivera, Blanca Rosales, and Rosa Vasquez.63
Zeleznik testified the elimination of Sagastume's position was based on his, Clark, and
Foca observations from September forward. Zeleznik testified it was the focus on the day to
day operations and Foca looking at what went on administratively in the repack line as a
function of maintaining an Excel spreadsheet used for costing purposes and maintaining
production of what was to be produced on a daily basis. Zeleznik testified it was probably a
couple of hours a day job. Zeleznik testified it could be easily replicated. He testified
intercompany there are purchase orders and sales orders that need to be administered. They
receive purchase orders from vendors, adjust company inventory, and then distribute them in
what is called ship the bill. Zeleznik testified the spreadsheet work was sporadic, and it is done
on a daily basis by people in the ECFC admin department.
Zeleznik testified when Sagastume's position was eliminated he thought ECFC
administration could absorb all of the accounting based functions such as purchase orders,
sales orders, inventory, and adjustments. Zeleznik testified he thought the daily costing
spreadsheet would be maintained by Perdomo, the assistant manager of the repack line. At the
time, Perdomo was supervising the repack line within the tomato department. Zeleznik testified
it was Foca's decision to eliminate Sagastume's position, although Zeleznik concurred based on
observations of the work done there, and that ECFC admin department could absorb a good
portion of the work. Zeleznik testified the ECFC admin department picked up purchasing,
purchase orders, sale orders, shipping and bills for the tomato department just the same as they
were already doing within ECFC. Zeleznik testified Sagastume was doing a lot of inputting in
Excel. He testified he believed Sagastume could ship a purchase or sales order, but he knew
the admin department could do the same thing without adding any disruption, and without
adding hours or personnel. Thus, Zeleznik's description of Respondent's plan concerning the
elimination of Sagastume's position differed from that of Foca's. Foca testified it was his plan
that one of the ECFC admin personnel would spend part of the day at the tomato department
performing daily inputting of data that Sagastume had performed, while Zeleznik testified it was
his plan that Perdomo would perform that work, while the ECFC admin personnel would perform
the purchase and sales orders for the department.
Zeleznik testified he first learned of the decision to eliminate Sagastume's position in
early or mid-November. Zeleznik was told by Foca. Zeleznik testified he did not discuss the
position elimination with Ramos before it was eliminated. Zeleznik testified he discussed it with
Ramos, "After the fact. Literally the --day that it happened." Zeleznik testified from a
supervisory standpoint, Ramos, Perdomo, and A. Hernandez worked a great deal of hours
because they were also doing a lot of work directly on the lines. They had to cover for each
other's absences, by line, and things of that nature. The tomato department is a six day a week
operation, and Sagastume's position was the only one where Zeleznik could find redundancy,
and what they saw as redundant could be absorbed by existing ECFC personnel and by the
department. Zeleznik testified the tomato department is in a physically separate area in the
plant from the ECFC operation. Zeleznik testified he did not think it would be a viable option to

63 As of November 17 prior to the transfer: Rivera had a hire date of December 16, 2004 and
was earning $8.90 an hour; Rosales had a hire date of July 11, 2007 and was earning $8.15 an
hour; and Vasquez had a hire date of November 11, 2008, and was earning $7.70 an hour.
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make Sagastume a line worker as she had a pay rate of $21 an hour, and line workers were
averaging $7.50 to $8.25 an hour. Zeleznik testified at the time he was evaluating
redundancies, he did not have knowledge that Sagastume or her husband supported the Union.
Zeleznik testified that, at the time of the hearing, Perdomo was in charge of doing the
repack administrative work. It is the same spreadsheet Sagastume worked on. However, it
only involved a couple of hours of work a day. Zeleznik testified he did not time how many
hours a day Sagastume spent in front of the computer, stating he was not down there every
day. Zeleznik testified he asked Ramos how long Sagastume would spend on this, and Ramos
said 2 hours a day spread out throughout the day.
Zeleznik identified an email he sent dated November 11, setting forth his itinerary for the
following week. It shows a leadership committee meeting scheduled for Wednesday, November
17 at 7:30 a.m. Zeleznik testified the leadership committee is a group of operations and sales
managers intercompany, CSPC and ECFC that was held on a monthly basis, and with the CFO,
which at the time was Mike Flanagan. Zeleznik did not know if he went to this particular
meeting. Zeleznik testified Stalio Callas, Tom Brown, Caplinger, Flanagan, Justin Callas would
have attended the meeting.64 Foca could have been there, and Corso occasionally attended.
Zeleznik claimed he could not recall whether the union campaign was discussed during these
meetings, stating it could have been.
When asked when he learned the department transfer was going to take place on
November 17, Zeleznik appeared to equivocate in his answer. For example the following
exchange took place:
JUDGE FINE: Well, when did you learn of this definitely happening, that -- it happened
on a Thursday, right? Was that a Thursday?
THE WITNESS: It could have been. I believe it was the 17th.
JUDGE FINE: The transfer occurred or --
THE WITNESS: We were talking--
JUDGE FINE: It occurred on the 17th, right?
THE WITNESS: We were talking in earnest about making this live as early as the 4th,
and it was a function of when we actually were prepared to roll it out and I had been
meeting with people--
JUDGE FINE: When did you know -- learn it was going to be the 17th?
THE WITNESS: I'm sorry?
JUDGE FINE: When did you learn that it was actually going to happen on November
17th?
THE WITNESS: That was when we were ready to make it happen. I had all my i's and
t's crossed.
JUDGE FINE: Well, how many days before the 17th did you learn it?
THE WITNESS: I'm not sure I follow your question.
These types of answers continued. Zeleznik then testified as follows:
JUDGE FINE: So by November 4th, you would have known--there was a meeting--
THE WITNESS: It was coming.
JUDGE FINE: And you were told it was going to be the 17th?

64 Morgan's November 2, memo states Nixon informed her that Nixon reported Vargas'
union activities to Justin Callas.
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THE WITNESS: I don't recall being told it was going to be the 17th. I knew it needed to
be done as soon as possible. I probably--
JUDGE FINE: Well, when did you learn it was going to be the 17th?
THE WITNESS: I'm assuming--I don't recall exactly but I'm assuming as I understood it,
somewhere between the 4th and probably the middle of the following week. I don't recall
the 17th ever being a set date. I just recall it being as soon as possible.
JUDGE FINE: Do you know why it happened on the 17th?
THE WITNESS: No, I don't. No, I don't.
Zeleznik testified that as of November 4, he wanted to do the transfer within two weeks.
Zeleznik testified their pay periods start on a Tuesday. Zeleznik testified, "so any planning or
forefront, you either want to announce it the morning on a Tuesday." Zeleznik then testified
without explanation, "Or you want to announce it maybe the Friday before." Zeleznik testified
pay raises would have been activated on a Tuesday. He testified in this case it would have
been the following Tuesday, but he did not recall which day. When asked if the line leaders
received backpay to the day of the transfer for pay increases, which was announced to the
employee population on Thursday, November 18, Zeleznik responded, "Probably, but I don't
recall." Zeleznik repeated he did not know why the transfer happened the day it did. When
asked if any told him why, or gave him advance warning as to the date, Zeleznik testified, "No. I
think there was a function leading up to where are we? Okay. Lines are set, people are set.
We know who are supervisors are going to be." Zeleznik testified he did not know the decision
that went behind picking that particular day. Zeleznik testified he did not remember when he
was told it was going to be the 17th. Zeleznik testified it was possible he was first told on the
November 17 by Foca that it was going to happen that day.
Zeleznik testified he took over the management of the tomato department in earnest in
early November, as "I knew I was going to be running it, full front." He testified he started
running it in certain degrees in mid-September. Zeleznik testified he started talking to Ramos
every day concerning the tomato department in mid-September. Zeleznik testified that after
November 17, everyone in the company knew that everything regarding the tomato department
went through Zeleznik, rather than Moore and Callas. Zeleznik testified as of November 17, he
was not doing anything differently. Zeleznik testified prior to November 17, Ramos started
giving more and more information on his day to day operations to Zeleznik. Aside from payroll,
Zeleznik testified he began managing the tomato department in earnest prior to October 13 or
14 whenever the first large Giant order was shipped. Since November 17, Zeleznik also has
been handling the payroll functions, and Callas is no longer involved. However, payroll
functions for the tomato department still go through CSPC.
While Zeleznik testified he planned to have Perdomo do the administrative work in the
tomato department at the time of the department transfer, Zeleznik testified Lorena Cruz was an
individual who works for ECFC who went to the tomato department to do some administrative
duties. Zeleznik testified Cruz worked there for a few weeks at least. He testified Ramos,
Perdomo, and A. Hernandez have taken on the work Cruz performed. Zeleznik testified the way
the work comes it is just as efficient for them to do it in real time as things are completed.
Zeleznik testified when Cruz was performing the work it was very hit or miss. It is very fluid and
every day is different depending on the volume of work, with products coming in and flowing out.
Zeleznik testified the person doing the administrative work needs to be in the tomato
department for portions of the work. He testified the reason it has fallen on the three managers
to complete is what do you do with that person with all the down time. Zeleznik testified during
down time, Cruz was able to go into ECFC side of admin and do some of the same functions
she was doing for the tomato line in the ECFC database for ECFC inventories, which was part
of her original job as well. Zeleznik testified anything that needed to be shipped or purchased
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order wise could also be done remotely if need be from the ECFC admin team from their
location upstairs. Zeleznik testified the physical functions in accounting side such as purchase
orders and sales orders can be done remotely. The do not have to be done on site at the
tomato department. Zeleznik testified he was told Sagastume did purchase orders. He did not
see Sagastume do one.
Zeleznik testified an employee named Marcelina Robles currently sits at the tomato
department desk and does some of the repack spread sheet work in the tomato department.
Zeleznik testified he sees her doing it one day, and the next day Perdomo is doing it. Zeleznik
testified Robles spends no more than 10 hours a week doing the Excel work, probably seven or
eight. Zeleznik testified he did not consider Robles as being transferred to the department. He
testified Perdomo showed Robles how to do the computer work so there was a backup person
in his absence. He testified Robles has been performing the work on an occasional basis
because Perdomo has a day off during the week and/or on Saturday. Zeleznik testified that, at
that time of the hearing, Robles has been doing the work for at least a couple of months.
Zeleznik did not know if Robles was in the tomato department prior to November 17. However,
Respondent's records reveal Robles was in the tomato department prior to the November 18
transfer. Robles did not begin inputting information into the computer until a around couple of
months prior to the hearing. Robles primarily speaks Spanish.
Zeleznik testified that at the time the tomato line was transferred to ECFC, Zeleznik
anticipated Perdomo performing Sagastume's work. Zeleznik testified he anticipated Perdomo
doing it himself for at least the upcoming 3 to 6 months following the transfer. Zeleznik testified
Perdomo did it for the first couple of months. Zeleznik testified Lorena Cruz was working on
SBT admin functions, and learning how to do the Excel spreadsheet. SBT is their accounting
system for Coastal for purchase orders, sales orders, and invoicing. Zeleznik testified Cruz was
not doing the tomato department spreadsheets, except on Perdomo's day off.
Ramos testified he is employed by CSPC as a supervisor of the tomato department,
which consists of about 36 people. Ramos has worked at the facility a long time, and has
supervised the tomato department for around 6 or 7 years. Ramos testified Clark works with
Foca and Zeleznik. Ramos testified Clark worked with Ramos on the tomato line around
October. When Clark came they were trying to work together to fix many things in the
department, including a machine. Ramos testified Clark had ideas to make things easier for
Ramos so the department could work better. Ramos testified he did not work with anyone else
on the line in October aside from Clark.65 Ramos testified Zeleznik did not perform work with
him on the tomato line prior to Zeleznik becoming his boss. Ramos estimated Zeleznik became
his boss in October or November.
Ramos testified there are currently three team leaders in the tomato department. They
became team leaders some time after Zeleznik became Ramos' boss. Ramos testified he and
Zeleznik made the decision to make them team leaders. Ramos testified he had a conversation
with Zeleznik about making them team leaders, but he could not recall the date. Ramos
testified there were three team leaders because there are three groups, one for packing and
repack, one for breaking down the boxes of tomatoes, and the last is for the tomato line.

65 Ramos was shown an e-mail dated September 24 from Clark to Ramos concerning the
status of the Giant tomato program. Ramos at first testified he never saw the e-mail before.
Ramos testified he can read English, however, he had difficulty reading the e-mail at the
hearing. Upon further questioning, Ramos maintained he did not know if he saw it before, and
could not authenticate the document.
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Ramos testified Sagastume worked with Ramos on the tomato line for about 3 or 4
years. Ramos was her supervisor. Ramos testified Sagastume made Excel spreadsheets, and
she did all of the paper work for the line. When Sagastume did not have any more work on the
computer, she helped her co-workers. Ramos testified that on busy days, Sagastume's
computer work took 3 and 1/2 to 4 hours a day. Ramos testified it was complicated in that every
time three or four things came out, Sagastume had to input them on the computer. Ramos
testified Sagastume worked an 8 to 8 and 1/2 hour day, so she worked 3 and 1/2 to 4 hours with
the other women in the department. Ramos testified Foca and Zeleznik told him Sagastume
was no longer going to work for Respondent after she was terminated. Ramos testified when
Sagastume left, they told him. They did not ask Ramos opinion about her leaving. Ramos
testified, "They told me that she left and it sort of took me by surprise."
Ramos testified when Sagastume left CSPC, Foca and Zeleznik told Ramos they had an
employee who was going to do Sagastume's work on the spreadsheet. The employee's name
is Lorena Cruz. Ramos testified Cruz was still working at the tomato department at the time of
the hearing, and she began the work the afternoon Sagastume left. Ramos testified Cruz was
working at ECFC before. Ramos explained Cruz comes at times to help, and sometimes "we"
do it. Ramos testified when Cruz came down, she worked 8 hours a day splitting time between
work at ECFC and the tomato department. When Cruz started at the tomato department,
Ramos had to show her how to use the spread sheet Sagastume used because the codes for
the products were different. Ramos testified it took him a short time to show Cruz. Ramos
testified there are hundreds of product codes in repack which is the spread sheet work
Sagastume performed. He testified some memorize the codes, others rely on a sheet listing the
codes as you do not see all the products all of the time. Ramos testified he knows all the
product codes. Cruz relied on a code sheet. Ramos testified it did not take Cruz any longer
than Sagastume in entering the codes because Cruz does the same thing in ECFC production.
However, Ramos testified Sagastume had all of the codes memorized.
When initially asked how many hours a day Cruz works in the tomato department,
Ramos did not answer directly. Rather he testified she works both inside at ECFC and outside
at the tomato department. Ramos testified sometimes when it is busy Cruz is there. Then
Ramos testified Cruz sometimes works there three hours a day, sometimes less. Ramos
testified when they need help they call her, if not no. When asked how many days a week Cruz
works in the tomato department, Ramos testified it depends on how busy it is. He explained the
days when the most help is needed are Thursday and Friday. On those days, they keep Cruz
busy in the afternoon; and around 3 or 4 p.m. she does a few things for them. Ramos testified
sometimes Cruz does not come to the tomato line, they take the papers up to her and she does
them in her office at ECFC. Ramos testified she knows how long it takes to repack a box
because they created a sheet stating how many boxes and how long it took. Ramos testified
Cruz comes Thursdays and Fridays to the tomato department, and sometimes they take the
papers up to her. Ramos testified Cruz works 8 hours a day including inside in ECFC
production department and outside on the tomato line. The ECFC production department is
where they cut up fruit and vegetables. She does the spreadsheets for the ECFC production
department and the labels there. The tomato line is outside in the cold. When asked how many
hours a week Cruz works for the tomato department, Ramos testified she can work between 2
to 3 hours, to 6 to 7 hours in Ramo's department. The rest of the time, Cruz is working at ECFC
doing another job, including labels and the spreadsheets for ECFC. Cruz does not work
inspecting or repackaging tomatoes.
Ramos testified everyone in the tomato department including Cruz is Spanish speaking.
Ramos testified A. Hernandez does the repack spread sheet when Cruz is not there. Ramos
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testified the job is very easy. Ramos testified he was teaching the line leaders to do the repack
spread sheet, but they said it was boring and stopped doing it. Ramos testified he trained
Marcelina Robles to do it. Ramos testified Robles learned it very quickly. Robles does the
spread sheet when Cruz is not there. Ramos testified Perdomo also does the spread sheet
sometimes. Ramos rarely does it. Ramos testified it currently takes five people to do the
spread sheet job because it is easy, if it were difficult no one would want to do it. Ramos
testified the spread sheet requires inputting information into the computer as the repacking is
occurring. He testified you have to wait until three different classes of produce come out and
then you input it all at the same time. He testified that on the spread sheet you input the
number of employees repacking, the price, the number of boxes packed and the time it takes to
repack the product.
Ramos testified he is in charge of the tomato department, and if there is something he
cannot solve, he calls the managers by phone or sends a message and they solve it. He
testified he does not have to keep them informed very much. Ramos testified he had
conversations with Foca after Sagastume left. Ramos testified he was not having conversations
with Foca prior to Sagastume leaving stating, "I almost don't talk to them. No, I didn't talk to him
because I'm very, very busy." Ramos testified after Sagastume left, Foca comes by every now
and then, asks Ramos how it is going, then Foca goes back upstairs to his office. Ramos
testified some times 15 days or a month went by before he saw Corso, Zeleznik or Foca.
Ramos testified since Sagastume was terminated, Foca is the one who comes by and says hi
how are you. "Before, I never saw him." Ramos testified before Sagastume was terminated,
they never asked him any questions about his department. Ramos testified that prior to the time
the department was transferred to ECFC they told him, "the tomato line had gone to East Coast
and that I'm going to be your boss. And that's it." Ramos testified before the transfer they told
him the group would be moved to East Coast, and that was the only time until after Sagastume
left. Ramos testified he only had two conversations with management, one after Sagastume
left, and one before they moved the line to ECFC. Ramos testified the morning of the transfer
Foca told Ramos that he was going to work with Foca and Zeleznik. Ramos testified this was
the only time Foca discussed it with him before it happened. Ramos testified Foca never
discussed the Union with Ramos because he spent most of his time upstairs. Ramos testified it
was something he did not like to talk about.
F. Analysis
1. Procedural matters
A dispute arose concerning items set forth in Counsel for the Acting General Counsel's
subpoena with Respondent contending it related to issues beyond matters set forth in the
complaint. As a result of this dispute, at the outset of the hearing I entered into evidence the
following analysis in ALJ Exh. 1:
The Respondent asserts that antiunion statements and literature cannot be
considered in this case because those statements are protected by Sec. 8(c) of the Act.
However, the Board has held that antiunion statements, even if not themselves alleged
to be violations of the Act, can be relied upon as evidence of antiunion animus or
motivation. Sunshine Piping, Inc., 351 NLRB 1371, 1387 (2007). See, Overnite
Transportation Co., 335 NLRB 372, 375 fn. 15 (2001) (employer statements in employee
handbooks indicating that the employer values union free working conditions are
indicative of union animus); and Tejas Electrical Services, 338 NLRB 416, 416 fn. 5
(2002); Mediplex of Stamford, 334 NLRB 903, 903 (2001); Stoody Co., 312 NLRB 1175,
1182 (1993) Gencorp, 294 NLRB 717 fn. 1 (1989); Affiliated Foods, Inc., 328 NLRB
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1107 (1999); Dynatron/Bondo, 323 NLRB 1263 (1997). See also, Overnite
Transportation Co., 329 NLRB 990, 1008 fn. 7 (1999), enfd. 240 F.3d 325 (4th Cir. 2001)
and NLRB v. Colonial Lincoln Mercury Sales, Inc., 485 F.2d 455 (5th Cir. 1973) (speech
by employer’s president, though not an unfair labor practice, could properly be
considered as background in reviewing the significance of the employer’s subsequent
acts); J.P. Stevens v. NLRB 461 F.2d 490 (4th Cir. 1972) (finding anti-union speech as
evidence of improper motive); and Orchard Corp. v. NLRB, 408 F.2d 341, 342 (8th Cir
1969).
I do not find Raleys, 348 NLRB 382, 435-438 (2006), cited by Respondent requires a
different result. That case involved the issue of whether statements distributed in a
memo rose to the level of a violation of Section 8(a)(1) of the Act, not whether otherwise
lawful conduct can be used as background evidence of an unfair labor practice. In Wal-
Mart Stores, 352 NLRB 815 fn. 5, 2008, also cited by Respondent the Board found a
Section 8(a)(3) violation but stated it did not rely on the judge’s finding that animus may
be inferred by Respondent’s running an aggressive anti-union campaign. However, I do
not find this statement sufficient in the context given to reverse the body of case law
cited above. Moreover, the standard for production of subpoenaed materials is that the
information sought only has to be potentially relevant.
At the outset of the hearing, counsel for the Acting General Counsel introduced evidence
of statements made at meetings conducted by Corso as background evidence of animus. The
statements were not alleged as violative of the Act in the complaint, and I informed counsel that
I would not make any affirmative findings of unfair labor practices for matters not affirmatively
alleged in the complaint. However, Respondent was also put on notice that this evidence was
being admitted into the record based on the Acting General Counsel's contention that it
constituted background evidence of animus, and it was up to Respondent to respond to it as it
saw fit. (Tr. 138-140). Counsel for the Acting General Counsel was later to state that she was
not seeking to amend the complaint to include certain conduct which she was alleging
constituted evidence of animus because the Acting General Counsel only became aware of the
allegations after the 10(b) period.(Tr. 145).66 Thus, counsel for the Acting General Counsel did
not seek to amend the complaint based upon an argument of closely related conduct to that
contained in the charge even with respect to statements occurring during an alleged unlawful
interrogation of Sagastume which was set forth in the complaint. Rather, she contended at the
hearing that she was only seeking an affirmative finding for matters specifically set for in the
complaint, maintaining that matters not alleged were time barred by Section 10(b) of the Act, but
that they should be considered as background evidence of animus. I find Respondent was on
full notice this position based on counsel for the Acting General's statements at the outset of the
hearing, and on my rulings relating to those arguments. Thus, I have considered conduct
unalleged in the complaint as evidence of animus on the part of Respondent to the employees'

66 Counsel for the Acting General Counsel's statement at the time was in the context of a
discussion that included evidence that Hernandez had been paid by Respondent for attending
its campaign meetings. Despite her contention that the complaint should not be amended at the
outset of the hearing concerning matters not alleged due to Section 10(b) timeliness
considerations, just prior to the close of the hearing, after all parties had rested, counsel sought
to amend the complaint concerning Respondent's payments to employees for their attendance
at these meetings. At the time, I denied the motion to amend the complaint with the view that
regardless of Section 10(b) considerations the motion was untimely, and prejudicial to
Respondent if it were to be granted. The motion was not renewed in Counsel for the Acting
General Counsel's post-hearing brief, and I adhere to my decision at the hearing denying the
motion to amend the complaint.
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union activities. See, Wilmington Fabricators, Inc., 332 NLRB 57, 58 fn. 6 (2000); Kaumograph
Corp., 316 NLRB 793, 794 (1995); Hendrix MFG. Co. v. NLRB, 321 F.2d 100, 103 (5th Cir.
1963); NLRB v. Vemco, Inc., 989 F.2d 1468, 1473-1475 (6th Cir. 1993); and the cases cited in
ALJ Exh. 1 set forth above.67
2. Case law pertaining to alleged discriminatory conduct
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the Board established an analytical framework for deciding cases
turning on employer motivation. To prove that an employee was discharged in violation of
Section 8(a)(3), the General Counsel must first persuade, by a preponderance of the evidence,
that an employee's protected conduct was a motivating factor in the employer's decision. If the
General Counsel is able to make such a showing, the burden of persuasion shifts “to the
employer to demonstrate that the same action would have taken place even in the absence of
the protected conduct.” Wright Line, supra at 1089. See also Manno Electric, 321 NLRB 278,
280 fn. 12 (1996).68 The elements commonly required to support a finding of discriminatory
motivation are union activity, employer knowledge, and employer animus. Farmer Bros. Co.,
303 NLRB 638, 649 (1991), enfd. mem. 988 F.2d 120 (9th Cir. 1993).
The law is clear that knowledge of an employee’s union activity may be established by
reasonable inference. Windsor Convalescent Center of North Long Beach, 351 NLRB 975, 983
fn. 36 (2007), enfd. in relevant part 570 F.3d 354 (D.C. Cir. 2009). See also as discussed in
Windsor Convalescent the following: Active Transportation, 296 NLRB 431, 431-432 (1989),
enfd. 924 F.2d 1057 (6th Cir. 1991) (knowledge inferred where, inter alia, three of four
discharged employees engaged in union activities in the presence of employee who was an
informer for the employer); Clark & Wilkins Industries, 290 NLRB 106, 106 (1988), enfd. 887

67 In view of the counsel for the Acting General Counsel's position at the hearing that
conduct not alleged is time-barred by Section 10(b) of the Act; and/or her failure to make a
timely motion to amend the complaint to allege conduct not already listed, I do not find it
appropriate to make an affirmative finding of a violation for matters not alleged in the complaint.
68 It has been long held that it is unlawful to discriminate against a union adherents family
members as a means coercing employees to desist from their union activities. The Board has
found the discharge of a supervisor to be violative of the Act, where the motivation is designed
to thwart the organizational activities of employees who are the supervisor's relatives. See,
Advertiser's Mfg. Co., 280 NLRB 1185 (1986), enfd.823 F.2d 1086 (7th Cir. 1987); and
Brookside Industries, Inc., 135 NLRB 16, 27 (1962), enfd. 308 F.2d 224 (4th Cir. 1962). See
also Golub Bros. Concessions, 140 NLRB 120 (1962) where supervisory and non-supervisory
family members were found to be unlawfully discriminated against because of the union
activities of a family member employee. Respondent, in the current case, conceded this aspect
of the law in its February 11, 2011 pre-hearing position statement citing Tasty Baking Company,
330 NLRB 560, 579 (2000), enfd. 254 F.3d. 133 (D.C. Cir. 2001), "(holding that husband's
protected activities can serve as grounds for a violation of 8(a)(3))" (See GC Exh. 30, page 6).
In Tasty Baking Company, supra., a Wright Line analysis was used by the Board to conclude
that an employer demoted a supervisor to employee status in violation of Section 8(a)(1) of the
Act; and then transferred that same individual, now an employee, to the night shift in violation of
Section 8(a)(1) and (3) of the Act all because of her husband's union activities. Likewise, I find
that a Wright Line analysis is warranted here as to whether employee Sagastume was
discharged because of her husband's union activities. See also, Kenrich Petrochemicals, 294
NLRB 519, 531 (1989), enfd. in relevant part 893 F.2d 1468 (3rd Cir. 1990).
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F.2d 308 (D.C. Cir. 1989), cert. denied 495 U.S. 934 (1990) (imputing supervisor's knowledge to
employer where supervisor observed organizing campaign in small shop). It has also been long
established that circumstantial evidence including the timing of the alleged discriminatory event
and the submission of pretextual reasons in support of it will support a finding of employer
knowledge even in the absence of direct evidence of such. See La Gloria Oil and Gas Co., 337
NLRB 1120, 1123 (2002), affd. 71 Fed. Appx. 441 (5th Cir. 2003); Medtech Security, Inc., 329
NLRB 926, 929-930 (1999) (circumstantial evidence, including timing, general knowledge of
union activity and pretext, supported finding of employer knowledge); Darbar Indian Restaurant,
288 NLRB 545 (1988) (finding of knowledge based on employer's general knowledge of Union
activity, the timing of the discharge, the 8(a)(1) violations found, and pretext given). See also,
West Motor Freight of Pennsylvania, 331 NLRB 831, 836 (2000); North Atlantic Medical
Services, 329 NLRB 85 (1999); Hospital San Pablo, Inc., 327 NLRB 300 (1998), enfd. 207 F.3d
67 (1st Cir. 2000); and Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. mem. 97
F.3d 1448 (4th Cir. 1996). The Board has held that a supervisor's knowledge of union activities
is imputed to an employer absent a credible denial of such knowledge. See, State Plaza, Inc.,
347 NLRB 755, 756-757 (2006); and Dobbs International Services, 335 NLRB 972, 973 (2001).
Along these lines it has been long held as set forth in Shattuck Denn Mining Corp. v. NLRB, 366
F.2d 466, 470 (9th Cir. 1966), "it is seldom that direct evidence will be available that is not also
self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may
infer motive from the total circumstances proved. Otherwise no person accused of unlawful
motive who took the stand and testified to lawful motive could be brought to book."
3. The present case
In the current case, Hernandez and Sagastume were long term employees at
Respondent's facility. Hernandez and Sagastume were married in 1999 and they were husband
and wife during the course of their employment with Respondent. They were each working for L
& M Produce when Respondent purchased that operation in 2007. They retained their L & M
seniority dates while working for Respondent. Hernandez and Sagastume were each working
at Respondent's facility for the entity CSPC which shared the facility with ECFC. Both of those
entities top managers were paid by CSI the holding company for CSPC and ECFC. Corso is
the president and CEO of CSI and CSPC. Foca is the president and CEO of ECFC. Foca
reports to Corso. ECFC and CSPC employ a combined work force of about 900 employees.
Hernandez worked as a driver for CSPC, as such he did deliveries both local and over the road.
Hernandez performed deliveries for both CSPC and ECFC. There were about 200 drivers
employed by CSPC in the fall of 2010. Sagastume worked as an administrative employee in the
tomato department in the fall of 2010. The tomato department was part of CSPC while
Sagastume was employed there. There were around 40 employees in that department, and
they all reported to Ramos, the department supervisor.
In the summer of 2010, Hernandez had a conversation with co-workers at a soccer
game involving employees of CSPC and ECFC where they discussed the possibility of a strike
and forming a union. Hernandez' credited testimony reveals the Saturday following the game,
Corso questioned Hernandez at the loading dock at Respondent's facility as to whether there
was going to be a strike that day. Hernandez informed Corso that he did not think there was
going to be a strike but he reported to Corso that there was dissatisfaction amongst the
employees particularly with the supervisors. Thus, news of disaffection amongst the drivers had
spread rapidly throughout the facility quickly reaching Corso. In fact, Ramos testified he had
heard of the possibility of a strike amongst the drivers. Around September, Hernandez, with
one of his co-workers, met with Local 639 Secretary/Treasurer Gibson at the Union's offices.
They discussed problems at work, in particular problems they felt they had with supervisor
Caplinger. At that time, they decided they were going to attempt to organize the drivers at
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Respondent's facility. In fact on September 8, Hernandez attended a union meeting at the
union hall with 25 drivers in attendance. Hernandez signed a union authorization card on
September 8. He received around 200 cards for distribution during the September 8 meeting.
Hernandez gave Javier Vargas a card, which the latter signed on September 9.
On October 6, McWhorter, vice president of sales of CSPC, sent Corso an e-mail under
the heading "Driver Thing". McWhorter told Corso that one of the black drivers stated the black
drivers were being approached to sign petitions, and that Javier approached him and said they
had 120 signatures. McWhorter asked Corso if he and Corso could meet with "the leaders of
this thing somewhere off site and have a talk with them?" The e-mail was clearly written with
code words conveying that McWhorter felt Corso understood what he was talking about, and
that it was in reference to the Union campaign, which by that time was over a month old
amongst the drivers at Respondent's facility. Corso incredibly claimed that he did not follow up
with McWhorter and that he did not know there was a union campaign at Respondent's facility
at the time he received the e-mail.
Corso testified that in early October, Respondent undertook or announced several policy
changes at Respondent's facility. He testified the company created an employee suggestion
box. They also announced in October a change in the vacation policy allowing employees to
take consecutive weeks off. They announced a changed in the bonus system rendering it more
favorable to drivers. These changes were the result of information Respondent gleaned through
holding paid focus groups with the drivers in September to determine the cause of the drivers'
discontent. Hernandez attended one of these meetings on September 14, for which he was
paid a $50 bonus by Respondent.
On October 13, Gibson sent a certified letter to Corso requesting that Respondent
recognize and bargain with the Union in a unit of full time drivers stating the Union was prepared
to demonstrate majority status. Corso received the letter around October 15. Corso
immediately reacted to the Union's request for recognition. Corso testified he conducted
meetings with all of the drivers upon his receipt of the letter. Since the drivers worked different
shifts and routes, this involved multiple meetings. Hernandez credited testimony reveals that he
attended a meeting in which Corso announced he had received a letter from the Union. He
credibly testified Corso stated he had made many changes in the company and asked how the
employees could pay him back this way. Corso stated he felt like he had been stabbed in the
back. Hernandez testified that during the meetings he attended, Corso stated he would never
allow the Union to come into his company, that he had lawyers. Corso stated if they presented
him with a contract years would pass before he would sign it. Hernandez testified different
drivers attended different meetings based on scheduling. Similarly, Vargas credibly testified he
attended a meeting conducted by Corso, with about 20 to 30 drivers in attendance. During the
meeting, Corso stated he had received a letter from the Union. Corso said he had heard rumors
of a strike, so he had talked to all of the drivers to know the reasons for their discontent with the
company. Corso was very upset with the drivers. Corso stated he tried to change things
including Caplinger's position as supervisor, which had been the subject of discontent amongst
the drivers. Vargas testified Corso implied the drivers had stabbed him in the back because he
had tried to change things, and now he had received a letter from the Union stating it wanted to
represent his employees. Vargas testified Corso said he would not accept a union in his
company, that there would be a process, there would be elections. Corso said due to the
Union, he would not be able to offer raises to the employees because the Union had messed
things up. Corso said if something happened after the elections, he would not accept the Union,
he did not agree with that, and that he could not fix anything until all of this was over. Corso
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said it was an involved process, and after the election if the Union won, he would not accept the
Union in the company.69
On October 27, Corso held a phone conference with Respondent's board of directors
located in Atlanta. Foca attended this meeting, and was copied an e-mail sent to the board of
directors that day prior to the meeting. An attachment to the e-mail detailed developments
concerning the Union's organizing efforts. It stated Corso had spoken to all of the drivers about
his disappointment concerning the Union's request for recognition, about being careful of the
Union's promises versus guarantees, and about union dues and the loss of individuality for the
drivers as a result of a union. It showed Respondent was keeping tabs of the Union support
amongst its employees stating there was a high number of former and (anti-union) workers at
Respondent willing to speak out against unions. It stated many business actions were taken in
that they now required partnership approval of all terminations, suspended bonus deductions,
made vacation commitment for two consecutive weeks, developed clear helper policy, reviewed
24 hour off duty police presence for December forward, created a Logistics department, and
hired the Hay group. Thus, during the time period after its employees contacted the Union,
Respondent made a series of changes to their benefits and its organizational structure. I find
these changes occurred to dissuade the employees from organizing a union. Corso testified he
discussed at the October 27 board meeting, attended by Foca, that Corso did not feel a union
was necessary at Respondent. He testified he felt a third party was an outsider with their own
agendas, which would not necessarily coincide with that of Respondent and its customers. He
testified he felt the Union was in a state of decline over the past 50 years and Respondent did
not need to buck that trend. Corso testified he was concerned Respondent's customers would
react poorly if Respondent's employees were organized.
On October 27, the Union filed a petition for election for a unit of regular full time drivers.
Corso testified he thought Respondent received a copy of the petition on October 27. He again
reacted swiftly stating on October 27 he met with all of Respondent's drivers informing them the
petition was filed and he did not know when the election would take place. Corso testified he
also had two meetings with management following the filing of the petition, one informal and the
other more formal. The second meeting included the executive team from both CSPC and
ECFC attending the meeting, which included Zeleznik. Corso testified Foca attended both
meetings. Corso testified that after the petition for election was filed, Corso authorized the use
of increased off duty police presence at the facility to 24 hour coverage. Foca testified he
participated in the decision to increase police coverage. Corso testified the decision was carried
out by the human resources department.
On October 30, Hernandez attended a union meeting at a restaurant around 3 miles
from Respondent's facility. Around 30 to 40 employees attended. Hernandez was on the
Union's organizing committee, and he helped inform employees the meeting was going to take
place. On October 30, Stalio Callas, CSPC's general manager of operations, sent Corso an e-

69 The credited testimony of Hernandez and Vargas establish that Corso made statements
to groups of employees to the effect that the Company will never agree to union representation
amongst it employees. While not alleged in the complaint, these statements constitute evidence
of animus as they restrain employees in their exercise of their Section 7 rights because they
convey a message that it would be futile for them to join or support a union. see Maxi City Deli,
282 NLRB 742, 745 (1987) (finding employer's statement that there would never be a union in
his restaurant to be unlawful); Loby's Cafeteria, 187 NLRB 420, 420 (1970) (finding employer's
statement that he was not going to have a union to be unlawful because it indicated that support
for a union is futile); and Rood Industries Inc., 278 NLRB 160, 164 (1986).
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mail detailing drivers' conversations at the work place in opposition to the Union on that date. At
that time, Callas had responsibility for the tomato department operations and the employees
who worked there.
On November 2, Hernandez and Vargas attended a meeting with Corso in Corso's office
at Hernandez' request. The meeting took place in English. When Hernandez started talking to
Corso about the Union at the meeting, Corso brought Foca in as a witness. Hernandez told
Corso that another driver had informed Hernandez that a driver named Nixon was saying bad
things about Hernandez, Vargas, and Hernandez' wife. Hernandez told Corso that Nixon had
been referring to them in vulgar terms and accusing them of bringing the Union to Respondent.
Hernandez told Corso, in Foca's presence, that they did not have to bring the Union there
because they were making good money, they had a good position, and they knew Corso would
not like the idea. Hernandez told Corso that he did not like Nixon referring to Hernandez' wife
like that, and that if he heard Nixon do so directly Hernandez would fight Nixon. Corso told
Hernandez not to do that because Hernandez would lose his job. Corso told Hernandez he had
to make a claim with human resources.70
Both Corso and Foca testified that when Hernandez referred to his wife during the
November 2 meeting, they knew he was referring to Sagastume. Foca's testimony was
particularly peculiar in that he testified he did not know either Sagastume or Hernandez prior to
November 2, but he admitted to knowing they were married at the time of the November 2
meeting. Moreover, Foca claimed that as of November 2, he had already decided to terminate
Sagastume. Yet, despite being called in on November 2, to witness what Corso deemed to be a
very sensitive meeting by the fact that a witness was necessary, both Corso and Foca incredibly
claimed that Foca never informed Corso of Foca's purported decision to terminate Sagastume
until after the discharge took place on November 18. I have concluded that on November 2,
Foca did not inform Corso of his decision to terminate Sagastume because, contrary to his
testimony, Foca had not made the decision as of that time. Sagastume also testified she met
with Corso in November concerning Nixon's making vulgar remarks about her at the work place.
She told Corso that Nixon was accusing Hernandez of being a union organizer. Sagastume
credibly testified Corso said he understood and would speak to Nixon.71

70 In fact, Corso testified he had fostered anti-union drivers to speak out against the Union,
during meetings Corso had held with them.
71 Respondent argues Hernandez and Vargas incorrectly telling Corso and Foca that they
did not support the Union undermines there credibility. However, Respondent created an
atmosphere of fear and coercion at the facility amongst the drivers concerning those that
supported the Union. It was in part that fear that propelled Hernandez and Vargas, union
activists, to come forward and deny that support to Corso when they were aware that rumors
had surfaced about them at the facility. In fact, the Board has acknowledged this in its
standards for determining whether an interrogation is coercive, by taken into consideration the
truthfulness of the employee's response by finding when an employee misrepresents their pro-
union status to the interrogator that tends to signify the coercive nature of the interrogation. See,
Medcare Associates, Inc., 330 NLRB 935, 939 (2000). To hold otherwise, an employee who
had been coerced thereby providing an untruthful response to their interrogator would then be
discredited when they truthfully testified about the questioning. This was acknowledged by
Foca who, concerning the meeting, testified if he was in Hernandez shoes he would have come
forward to deny his union involvement. The very fact that Hernandez would be placed in a
position to have to deny his pro-union status to management in terms of his job security signifies
Respondent had created a coercive atmosphere for union supporters at their work place.
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Following their meeting, Corso took Hernandez and Vargas to human resources on
November 2, where they met with Morgan and Vasquez. Human resources is on the same floor
as Corso's office. Vasquez was the driver's supervisor and he served as a translator for
Morgan. They met with the two drivers, one at a time. Hernandez asked Vasquez why there
was so much trouble with the business of the union. Hernandez told Morgan that yesterday
driver Arias informed Hernandez that Nixon was talking about Hernandez' wife, Hernandez, and
Vargas saying bad things about them and that they tried to bring the Union in. Hernandez said
that is not the truth. Hernandez said if Nixon had proof he was trying to bring the Union in, he
could show it to Corso. Both Morgan and Vasquez stated Nixon should not be talking about
Hernandez' wife like that. Vasquez said even if it were true, he should not bad mouth her.
Morgan left the room to talk to Arias who came up to give a statement. While she was gone
Hernandez told Vasquez that Nixon making those accusations about Hernandez and the Union
was very serious because if the company ever found out they would terminate Hernandez by
finding an excuse to fire him, or pressure him to quit. Vasquez did not deny this assertion. He
did tell Hernandez he would talk to Nixon so Nixon would not bother him any more.72
Morgan's notes reveal she interviewed Nixon on November 2, concerning Hernandez
and Vargas' complaints. In the November 2 notes, Morgan included a "Statement provided by
Nixon." Morgan reported Nixon stated Javier Vargas gave Nixon a card and asked Nixon to
meet Vargas at McDonalds. Nixon responded he would think about it and Vargas said no sign it
now. Nixon said he had a right to think about it. Nixon said he saw Vargas by the hand trucks
with some other guys who were coming and going and they were all talking about the Union. It
was stated Vargas later approached Nixon in the parking lot and said he had come to talk to
Nixon. Nixon just drove off. He stated Vargas followed him in his car to a light. Nixon stated
Vargas got out of his car with a knife in his hand, but Nixon again drove off. Nixon stated he
told this to Justin Callas, Erika Perez, and Steven Griffin that morning about the incident. Nixon
then discussed some other employees' opinions about having a union. Nixon informed Morgan,
as per her notes, that he could continue to work with Hernandez and Vargas peacefully while
the investigation was being conducted.
On November 4, consultants RBA sent Corso a proposal under the heading, "Re" Union
Prevention Proposal." In his cover letter to the proposal, Brown, the president of RBA, stated to
Corso, we hope to provide you with a multitude of reasons why we are best suited in assisting
you to defeat the Teamsters. Brown stated, "We will garner a win" provided they had sufficient
time to produce results. RBA's plan included weekly group meetings with all voters, as well as
one on one employee meetings with each voter.73 The letter included a 5 week plan of action.
Corso signed a contract with RBA on or shortly after November 5. On November 6, he
forwarded Foca a copy of the e-mail chain notifying the board of directors that Corso had
retained RBA. Corso testified Brown came to the facility and met with some of the managers,
including Foca. CSPC agreed to pay RBA between $125 to $225 an hour for their services.
Following the hiring of RBA, Respondent began paying its drivers $25 each per meeting
for attending mandatory weekly meetings against the Union. Hernandez' payroll records
revealed he received a $25 bonus for attending each of four of these meetings, which took

72 Vargas gave a similar account of what he related to Morgan and Vasquez in his meeting
with them on November 2, stating he informed them that Nixon was disrespecting Hernandez,
Sagastume, and Vargas and that Nixon was accusing Vargas of being one of the union
organizers.
73 The conducting of one on one meetings with voters is a tactic clearly designed to garner
voter leanings in the upcoming election.
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place on November 18, December 2, December 7, and December 15 totaling $100 in bonuses.
Hernandez testified Corso presided over the meetings he attended, and that there were two
RBA officials there. The election tally sheet showed 213 eligible voters. Assuming they were all
required to attend the same number of meetings as Hernandez and that they were
compensated in the same fashion this indicates an estimated cost to Respondent of $21,300 for
employee compensation alone, not counting the moneys paid to the RBA officials for their time
and attendance, and what other contractual costs they may have incurred relating to these
meetings and RBA's other activities.
Vargas testified he attended mandatory weekly management meetings concerning the
Union, for which he was paid $25 per meeting to attend. Corso and his assistants presided over
the meetings. Vasquez translated for Corso at some of the meetings. In one of the meetings,
McWhorter was present. Vargas testified about attending a meeting in Respondent's small
meeting room with 20 to 30 people there, with Corso presiding. An RBA official translated for
Corso. Vargas credibly testified Corso said if the Union won the first thing they would ask the
employees to do was to hold a strike because Corso would not accept their conditions, nor
would he sit down and negotiate with them. Corso said if there were a strike, any one of the
drivers could be terminated permanently and replaced by another driver. He said strikes that
took place could last months or years, and he was not about to let that stop his company, and
for that reason, the employees could all be permanently replaced.74 Corso said he was against
the Union. Corso said he preferred to shut down his company than to have the Union come and
tell him what to do.
Hernandez' credited testimony reveals that on Sunday, November 7, CSPC Fleet
Manager Joey Saia, an admitted supervisor, called Hernandez on his cell phone. Saia told
Hernandez he wanted to talk to him and it was personal. Hernandez met with Saia at around 5
p.m. that day at Saia's house. Saia said to Hernandez that he wanted to know what was going
on with the Union. Hernandez responded he really did not know what was going on.
Hernandez said there were a lot of people involved with this problem. Saia said he heard
Hernandez was the head of the Union. Hernandez responded they lied to Saia. Hernandez
asked Saia who asked Saia to talk to Hernandez and if it was Corso. Saia said no, there was a
conversation, and Saia offered to talk to Hernandez because Saia was Hernandez' friend.
Hernandez told Saia that he knew Saia was his friend. Saia said he wanted to know who the
person is in charge of the Union. Hernandez responded there are too many people on board, it
was not just Hernandez, not just Vargas, there were 20 to 25 people. Saia told Hernandez to
talk to Corso that Corso is a nice man. Hernandez responded he did not trust Corso.
Hernandez said Corso maybe a good person, but when he comes downstairs and talks to the
supervisor, all the problems stay downstairs after Corso goes back upstairs. Hernandez told
Saia of problems at work and how the supervisors could get Hernandez fired, and of problems
he was having with Caplinger. Saia told Hernandez to talk to Corso, explain everything to him,

74 Corso threatened to provoke a strike by his stated refusal to negotiate with the Union if
they won the election. The Board has labeled the threat of a refusal to negotiate as a serious
violation of Section 8(a)(1) of the Act. See, Garvey Marin, Inc., 328 NLRB 991, 994 (1999), enfd.
245 F.3d 819, (D.C. Cir. 2001). The scenario Corso created to the employees was they would
have been unfair labor practice strikers caused by Respondent's refusal to negotiate, and
threats to permanently replace unfair labor practice strikers constitute conduct violative of
Section 8(a)(1) of the Act. See, Capitol Steel and Iron Co. v. NLRB, 89 F.3d 692, 698 (10th Cir.
1996); WestPac Elec. Inc., 321 NLRB 1322, 1372 (1996); and Decker Coal Co., 301 NLRB 729,
748 (1991). This conduct was not alleged in the complaint, but I have considered it as evidence
of animus.
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"maybe they can give (you) a different position because you know all the routes." Hernandez
said he was sorry, "but I don't trust John." Hernandez said he was going to talk to McWhorter
because he had worked with him before, and when Hernandez had an issue he went to him and
he fixed it right away. Saia said to Hernandez please talk to the people and try to stop the
Union because it is not good for the company. Hernandez said it was not good for the
company, but Hernandez needed respect, and that is the point. Hernandez stated he did not
have too many issues with the company because he was making good money. Hernandez said
he did not know if he came to work one day whether Caplinger would decide to fire him.
Hernandez said he wanted to protect his job. Saia said please talk to the guys and try and stop
the Union. Hernandez said, "well, Joey, let me try to talk to them,…".
I find that Saia's November 7 questioning of Hernandez constituted a coercive
interrogation.75 While Hernandez was the leading union adherent at Respondent's facility he
was not open about his status, in fact, he had denied his participation to Corso 5 days prior to
Saia's contacting Hernandez. Here, Saia phoned Hernandez and requested a meeting. When
Hernandez arrived at Saia's home, Saia asked him what was going on with the Union.
Hernandez did not give a truthful response saying that he did not know what was going on, and
there were a lot of people involved. Saia then created the impression that Hernandez union
activities were under surveillance by stating Saia had heard Hernandez was the head of the
Union. Hernandez denied Saia's assertion. Saia persisted stating he wanted to know who the
person was in charge of the Union. Hernandez finally admitting he was a union supporter
stated it was not just him, not just Vargas, that there were 20 to 25 people involved. Saia
instructed Hernandez to talk to Corso. Hernandez then explained his problems at work
including those with Caplinger. Saia again told Hernandez to talk to Corso, stating maybe
Corso could give him a different position because Hernandez knew all the routes. Thus, there
was an offer to remedy Hernandez grievances with a new job if he talked to Corso and changed
his pro union stance. Hernandez refused Saia's entreaties to speak to Corso stating Hernandez
did not trust Corso. Saia told Hernandez to talk to employees to try and stop the Union because
it was not good for the company.76
In determining whether a supervisor's questions to an employee constitutes an unlawful
interrogation, the Board examines whether under all the circumstances, the questioning tends to
interfere with, restrain, or coerce employees in the exercise of Section 7 rights. Rossmore
House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). In making this assessment,
the Board reviews various factors, including whether the employee is an open union supporter,
the employer's background (whether there is a history of employer hostility and discrimination),
the nature of the information sought (whether the interrogator appeared to be seeking
information on which to base action against individual employees), the identity of the questioner
in terms of how high they are in the company hierarchy, the place and method of the
interrogation, and the truthfulness of the reply. Medcare Associates, Inc., 330 NLRB 935, 939

75 The questioning of Hernandez by Saia was not alleged in the complaint as conduct
violative of Section 8(a)(1) of the Act, and therefore I making no affirmative finding of a violation
with respect to its contents.
76 Similarly, Vargas testified Saia spoke to drivers at work concerning the Union. Vargas
testified since Saia is a good friend of all the drivers, he thought he could obtain information
from them. Vargas testified Saia asked Vargas if he knew who was doing the union organizing
on more than one occasion. Vargas testified that about 2 or 3 weeks before Sagastume was
terminated, Vargas told Saia that Vargas was in favor of the Union. Vargas testified Saia knew
Vargas and Hernandez were good friends and where Vargas went Hernandez was going to be
concerning the union.
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(2000). The Board will determine whether under all the circumstances the questioning at issue
would reasonably tend to coerce the employee at whom it is directed so that they would feel
restrained from exercising their Section 7 rights. Carroll & Carroll, Inc., 340 NLRB 1328, 1332
(2003). In Fleet Manager Saia's questioning of Hernandez the elements of a coercive
interrogation are met. Moreover, during the course of his coercive questioning, Saia created the
impression that Hernandez union activities were under surveillance, and offered Hernandez the
benefit of a new job if he would speak to Corso, cease his union activities and try and convince
others to do likewise.77
Respondent's officials were engaging in a pattern of these one on one meetings with
employees. In this regard, Vargas' testimony revealed that a few days prior to Sagastume's
termination, McWhorter, a high level official for Respondent and one of the prior owners of L &
M Produce, was calling drivers into his office.78 McWhorter called Vargas into his office and
asked Vargas what he thought about the Union. Vargas told McWhorter it was the only way to
fix things with the company because the drivers were not respected and they did not have any
guarantees. McWhorter said that was crazy because the Union was not a good thing, it
charged for its services, and the Union could only make promises. Vargas said if the Union is
so bad, why they did not let the Union explain what benefits it can bring to the employees.

77 Respondent argues in its post-hearing brief that Saia did not serve as an agent for
Respondent in his conversation with Hernandez because they were friends and the
conversation took place after hours and away from work. I do not find this argument
persuasive. Saia, an admitted supervisor, had the title of fleet manager. The Board has held
that an employer is bound by the acts and statements of its supervisors whether specifically
authorized or not. See, e.g., Dorothy Shamrock Coal Co., 279 NLRB 1298, 1299 (1986), enfd.
833 F.2d 1263 (7th Cir. 1987); and Holiday Inn-Glendale, 277 NLRB 1254, 1261 (1985).
Moreover, during the course of the conversation, Hernandez did not give Saia an honest
response as to his union activities clearly revealing he did not view the conversation as friendly.
In fact, Hernandez asked Saia if Corso put him up to questioning Hernandez. While Saia did
not specifically name Corso as the instigator, Saia informed Hernandez that Saia had been
selected to contact Hernandez because they were "friends." That he was acting on Corso's
behalf was conveyed to Hernandez by Saia's repeated requests that Hernandez speak to
Corso. Saia's actions were in line with Respondent and Corso's anti-union stance which had
been repeatedly conveyed to employees through campaign literature, direct statements, and in
meetings. In fact, Respondent's game plan called for direct supervisor participation in its effort
to combat the Union, as well as for one on one meetings with employees. Thus, I find that, as a
supervisor, Saia had actual authority for his remarks, and that Respondent through its course of
conduct also clothed Saia with apparent authority. See Zimmerman Plumbing Co., 325 NLRB
106 (1997), enfd. in relevant part 188 F.3d 508 (6th Cir. 1999). I do not find cases cited by
Respondent, Precision Piping & Instrument, Inc. v. E.I DuPont de Nemours & Co., 951 F.2d 613
(4th Cir. 1991) involving an anti-trust action; and Aliotta V. Amtrak, 315 F.3d 756 (7th Cir. 2003)
a wrongful death action and the facts on which they turned to be applicable here as to Saia's
agency status. Moreover, Respondent relies on facts not in evidence to bolster its argument by
contending that as fleet manager no drivers report to Saia. In fact, aside from stipulating to
Saia's job title and supervisory status, Respondent entered no evidence as to Saia's actual
duties on the record. For the reasons stated, I find Saia was acting with both actual and
apparent authority as a supervisor and agent of Respondent in his questioning of Hernandez
and Vargas as described in this decision.
78 Similarly, McWhorter called Hernandez and Vargas into his office following Sagastume's
termination for questioning concerning the Union. Their testimony revealed he was at the time
calling all of the former L & M drivers into his office for meetings.
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Vargas testified McWhorter knew Hernandez and Vargas were friends and from Vargas
response it was likely McWhorter knew that Hernandez also supported the Union.
On November 15 at 11:22 p.m., Corso sent an email to Moore, in which he stated,
"Checking in. Things going well." In his e-mail Corso asked Moore, "Did we ever follow up on
complaints Nixon, Javier, Luis and Myra lodged?" Moore responded by e-mail dated November
16 at 6:25 a.m. stating "I will check with Erin (Morgan) on the other once she is in." As to
Corso's question as to how things were going, Moore responded, "Not so good, there was some
pro-union talk from the night warehouse team. I will go over the issues when you are in today."
As set forth above, Morgan's notes revealed she had interviewed Nixon on November 2, and
Nixon had given her a statement informing her that Javier (Vargas) had given Nixon a union
card and insisted Nixon sign it at the time and Nixon refused. Morgan's notes reveal that Nixon
stated Vargas had subsequently followed Nixon after work in a threatening manner. Morgan's
notes reveal she asked Nixon if he could work with Vargas and Hernandez while her
investigation continued and Nixon said he thought he could. This e-mail exchange is revealing
on two fronts, first Respondent's supervisors continued to provide Corso with updates as to the
status of union activities at Respondent's facility. Second that Corso solicited a report on
Morgan's investigation that would reveal to him that Vargas and by strong inference Hernandez
were strong union supporters. As the e-mail exchange reveals, Corso asked for the report, and
Moore said she would get back to him that day. I do not credit Corso's claims that he could not
recall whether he received a response to his inquiry. In fact, I have concluded he received such
a response and once more he had a clear recollection of it.
Sagastume's credited testimony reveals that on November 17, as around 3:30 or 4 p.m.,
Ramos, her supervisor, pulled her off her task at the computer, and he engaged her in a
conversation. Ramos said he was very nervous and worried about the business of the Union.
Sagastume's said a lot of people were in the same frame of mind, and that everyone at the
company was worried because that is the only thing anybody talked about. Ramos said he just
wanted this thing to be over with, whatever the outcome. Sagastume said they all felt the same.
Ramos said "What do you think of the Union?" Sagastume said they did not have anything to
do with the Union as this is something to do with the drivers. Ramos said yes but if the Union
came in it was going to affect all of them. Ramos said the ones who were going to be affected
the most in this department were Ramos and Sagastume because they earned the most.
Ramos said the Union would take money out of Sagastume and Ramos' checks to level the
paychecks of all the others. Sagastume said, "No, that's not true." She said she had worked
with a company years ago that had a union and that did not happen, and she did not think
things had changed. Ramos asked Sagastume what she would do if the Union came in.
Sagastume said if the Union came in she would support it. Ramos said he did not think that
was going to happen. He said Corso is not going to allow that to happen. Ramos said
Sagastume should talk to her friends because Corso told Ramos he prefers to shut down the
company rather than allow the Union to come in. Ramos said he did not think this was a good
idea. Sagastume said what can we do and Ramos said what you have to do is talk to
Hernandez, and he should talk to Corso, and he should talk to the other managers in the
company. He should tell them that he repents for what he has done, that he should apologize
because they are worried. Ramos told Sagastume if Hernandez apologizes he will continue
with his job and nothing will happen. Sagastume said I do not think they are going to overlook
this and pretend nothing happened. Ramos said Hernandez should talk to them because so
many things have changed, for instance with the drivers. For example, they did not like the
supervisor, and they changed the supervisor. Maybe they might change their mind and they
can continue working well. Sagastume said she did not think that was going to happen and she
did not think the drivers are going to go back. She said speaking personally for Hernandez, she
did not believe he was going to step back and undo what he did. Ramos said if the Union does
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not come in each of those drivers one by one they are going to send them to hell. Sagastume
replied that is what they thought. She said that was their problem and she had spoken to
Hernandez about this and she had told him to think it over to see the good things and the bad
things. Sagastume said she had spoken to him and that is what they have decided. Ramos
said, "Well, look at all of this shit that's going on." Ramos stood up and walked away.
Sagastume testified the conversation was around 20 to 30 minutes.79
I find that Ramos engaged in a coercive interrogation of Sagastume concerning her and
her husband's union activities in violation of Section 8(a)(1) of the Act on November 17. Ramos
was a high level company official in that he supervised a department of close to 40 employees.
Ramos questioning came with the backdrop of Respondent's tenacious anti union campaign. In
this regard, while the tomato department employees were not part of the bargaining unit being
organized, they were required to attend a meeting conducted by Corso in which he spoke out
strongly against the Union. On November 17, Ramos pulled Sagastume off her job, and then
questioned Sagastume concerning her views about the Union although she was clearly not an
open union supporter. The coercive nature of Ramos' questioning is highlighted by the fact that
during the conversation he stated Corso would never allow a union to come in and threatened
plant shut closure if it did. Ramos created the impression of surveillance of Sagastume's
husband Hernandez union activities by instructing Sagastume to talk to Hernandez and tell him
to talk to Corso and the other managers and tell them to repent for what he has done. Absent
Hernandez failure to repent, Ramos threatened unspecified retaliation against the union
supporters stating that if the union does not come in, each one of those drivers one by one
would be sent to hell. Sagastume responded she had already spoken to Hernandez and that he
was not going to step back and undo what he had done.80 The next day, on the morning of
November 18, Sagastume, with a seniority date of 1997, was unceremoniously discharged.
While Ramos did not directly question Sagastume about Hernandez union activities, he placed
Hernandez union activities in play in such a way as designed to illicit a response about those
activities from Sagastume. The Board has held that statements that are not phrased as
questions constitute unlawful interrogations when they are designed to elicit responses from
employees about their union activities. Medcare Associates, 330 NLRB 935, 941 fn. 21 (2000),
citing NLRB v. McCullough Environmental Services, 5 F.3d 923, 929 (5th Cir. 1993).
Following her questioning by Ramos, Sagastume returned to her desk and went back to
work. She found it unusual that she did not see Ramos for the rest of the day. At around 6
p.m., Sagastume asked A. Hernandez but he did not know where Ramos was. Sagastume
dialed Ramos cell phone number two times but he did not answer. Around that time,
Sagastume saw Ramos coming down the stairs from where the offices were located including
that of Corso. Ramos said, "Oh, well, you haven't left." Sagastume replied she had phoned
Ramos phone twice and he did not answer. Sagastume said it is late now and she had to go.
Ramos said fine they would see each other tomorrow.

79 Sagastume testified Ramos had previously asked her two or three times if it was true that
Fernando is messing around with the Union. Ramos knew Hernandez as Fernando as
Sagastume calls him Fernando. Sagastume testified at the time she told Ramos no because
Respondent was trying to find out who it was, and the employees were just starting to organize.
80 The threat of plant closure, creation of impression of surveillance, and threat of
unspecified retaliation were not alleged as separate violations of the Act in the complaint and
therefore I make no affirmative findings of a violation of the Act with respect to those actions.
However, they serve as evidence of animus and as a backdrop as to the coercive nature of
Ramos' questioning of Sagastume. See, Carroll & Carroll, Inc., 340 NLRB 1328, 1332 (2003).
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On Wednesday, November 17 at 8:32 p.m. Foca sent an e-mail to Corso copied to
Zeleznik, Jay Krupin, an attorney in Respondent's law firm, and to Moore the subject of which
was tomato line organization realignment. The e-mail, although it did not mention Sagastume
by name, included the elimination of her repack administration position with duties reassigned to
the existing ECFC admin team. Foca testified the implementation of the tomato line transfer
took place on November 18. Zagastume by far the most senior employee in the department
was the only one of about 40 tomato department employees who were terminated as a result of
the department transfer. Among those transferred some received pay increases and some
were promoted and received pay increases.
Sagastume was summoned by Ramos to a meeting with human resources at 8 a.m. on
November 18. Morgan conducted the meeting which was attended by two other human
resources personnel, one of whom served as a translator. During the meeting, Morgan told
Sagastume they had another person to do Sagastume's job. Sagastume said in those days
they were very busy and she told Morgan that would be a help. Morgan told Sagastume the
position was that of an accountant, that they have someone with that type of experience and the
person is going to do the job. Sagastume asked what Sagastume was going to do and Morgan
said she did not know and therefore Sagastume was fired. Morgan asked Sagastume to sign a
document, which waived her right of recourse, in return for the receipt of severance pay.
Morgan did not inform Sagastume that such a waiver was in the document, which was written in
English. Sagastume refused to sign, and Morgan refused her request for a copy of the
document. Sagastume grabbed the document from Morgan. Sagastume said she needed to
pick up her things, and Morgan refused to allow her to return to the work area unaccompanied
by someone from human resources. Sagastume called a co-worker who retrieved Sagastume's
purse and Sagastume took the purse and left through the door they told her. Following the
meeting, Sagastume repeatedly called Ramos, but he would not return her calls.81 The
agreement Morgan asked Sagastume to sign is entitled, "Severance Agreement." It states the
parties to the agreement are Sagastume and CSPC.
Morgan sent an e-mail on November 18 at 9:02 a.m. to the HR department and payroll,
and with a copy to Vasquez, the driver's supervisor. Morgan instructed that Sagastume's
building and system access were to be terminated immediately. Morgan stated Sagastume may
not enter CSP property without a security or HR escort. Morgan stated, "Her husband, Driver,
Luis F. Hernandez is still employed with us, so we have reason to believe she may return." The
subject of the e-mail was "termination of employment" and it was labeled high importance.
The Union lost the December 17 election. The tally of ballots showed there were
approximately 213 eligible voters with 41 votes cast for the Union, 136 against. Thus, the Union
went from claiming a card majority on October 13, to losing the election decisively two months
later. On December 18, Corso sent out an e-mail celebrating the election results. The e-mail
included the following remarks:
In the end we crushed them. This whole thing cost a lot of money, a lot of disruption and
a whole lot of friction. But we won, decisively.
Many didn't understand unions before this started. They do now. And they voted
overwhelmingly against it. "Not in our house".
My focus now shifts from "not now" to "not never".

81 Ramos refused to return Sagastume's calls although he testified they had worked
together for a long time, they were friends, that they frequently talked and she was someone he
could trust.
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I find the Acting General Counsel has established a strong prima facie case of unlawful
discharge pertaining to Sagastume. The facts demonstrate strong evidence of animus on the
part of Corso and Respondent's officials to the employees' union activities. On October 15,
upon learning of the Union's request for recognition, Corso conducted employees meetings in
which he expressed personal outrage to them citing changes he had made in employment
conditions. Corso characterized their attempt to organize as an act of betrayal stating he had
been stabbed in the back. See, Bankers of Paris 288 NLRB 991, 991 (1988). Corso stated he
would never allow the Union to come into his company, and if the Union won an election he
would not accept it. Signifying to employees their efforts to organize were futile. Corso then
went on at considerable time and expense to conduct a campaign designed to undermine the
Union's support. The Union filed its petition for election on October 27. By November 6, Corso
had secured the services of RBA, an outside consultant, which had submitted a "Union
Prevention Proposal" with a detailed plan on how to "defeat the Teamsters", and a virtual
guarantee that if Respondent secured their services that "We will garner a win". Beginning in
mid-November, Corso, with the assistance of RBA officials, began to conduct weekly mandatory
meetings with all of its drivers consisting of a unit of over 200 employees, and was paying them
each $25 for each meeting they attended. During these meetings, Corso issued a series of
serious threats to employees including a refusal to negotiate by Respondent if the Union won
thereby provoking a strike. Corso went on to state the strikers participating in the strike
Respondent provoked would be permanently replaced. Corso also told employees he would
rather shut down the company than deal with the Union. On November 7, Hernandez the
leading union adherent was coercively interrogated by Fleet Manager Saia. Saia questioned
Hernandez about what he knew about the Union, and created the impression of surveillance by
informing Hernandez that Saia had heard Hernandez was the head of the Union. Saia told
Hernandez to talk to Corso with the possibility of a new job for Hernandez if he did so. Saia told
Hernandez to try and stop the Union. Hernandez refused Saia's directive to talk to Corso. Late
in the day on November 17, Ramos approached Sagastume, Hernandez' wife, using a similar
tactic. Ramos asked her what she thought about the Union. He told her she would suffer a pay
cut if the Union came in. Sagastume told Ramos if the Union came in she would support it.
Ramos informed her that Corso told Ramos he preferred to shut down the company then allow
the Union to come in. Ramos told her to ask Hernandez to talk to Corso and the other
managers and tell them he repents for what he has done. Sagastume refused Ramos directive
to talk to her husband. Ramos then threatened if the Union does not come in each one of the
drivers who supported it would be sent to hell.
Respondent's actions, reveal strong evidence of animus towards Union activity starting
with Corso and throughout the management staff. While, Corso and Foca denied knowledge of
Hernandez' union activities, I have not credited their self serving testimony. First, Sagastume
was interrogated and threatened late in the day on November 17, by Ramos concerning
Hernandez union activities, and she was told to have Hernandez meet with and apologize to
Corso for his actions regarding in the Union. Implicit in the statement was that Corso new of
Hernandez union activities. Sagastume refused Hernandez request and returned to work. At
that time Ramos disappeared from their work area and failed to respond to Sagastume's phone
calls. At the end of the day, Sagastume saw Ramos return to the work area from Respondent's
office area where management offices including Corso and human resources were located.
The next morning Sagastume, a 13 year employee, was unceremoniously called to human
resources, terminated without warning, her severance contract had already been typed up, and
she was removed from the facility and barred from further access from the work force, with a
letter from Morgan to be on the look out for her return since she was Hernandez' wife. The
timing and circumstances of her termination, coming on the heals of her interrogation by Ramos
the night before creates the inference that Respondent's decision makers concerning the
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termination were aware of her husband's union activities, and of her refusal to ask him to cease
them. The interrogation by Ramos alone, along with the swiftness of Sagastume's termination
following its occurrence, is sufficient to create a prima facie case that Sagastume's discharge
was unlawful. Sagastume's termination in the midst of Respondent's course of conduct set forth
above leaves no doubt that a prima facie case as been established.
The denial of Corso and Foca's knowledge of Hernandez' union activities is also
undercut by several other factors, as is the claim by Foca and Corso that they did not consult
with each other concerning the discharge of Sagastume. First, during the course of the
campaign, Corso was receiving e-mail reports from several supervisors updating him as to
employees' union activities. These include: a report from McWhorter, vice-president of sales, on
October 6; a report from Callas, general manager-operations on October 30; a report by Moore,
vice-president of operations on November 16; and Caplinger, transportation manager/logistics
manager, on December 11. Thus, four high level supervisors issued written reports to Corso
pertaining to the employees union activities at the facility indicating that Corso was keeping
those activities under surveillance through supervisory reports being funneled to Corso.
Moreover, Moore's November 16 report, stated at Corso's request that she would update him as
to the status of Morgan's investigation pertaining to Nixon, Hernandez, Vargas, and Sagastume.
I have concluded, contrary to Corso's claims of an absence of recall, that he did receive such an
update, which included a statement of Nixon that Vargas had solicited Nixon's signature on a
union card. Such a report would signal to Corso that both Vargas and Hernandez had
misinformed him when they claimed they were not for the Union on November 2. The credited
evidence reveals that Saia, on November 7, accused Hernandez of being the leader of the
union and told him to talk to Corso concerning his union activity with an eye to Hernandez
ceasing such conduct; and that on November 17, Ramos told Sagastume to ask Hernandez to
approach Corso concerning his union activity and seek forgiveness. The nature of these
interrogations and the repeated nature of the request reveals that Corso was the source behind
the questioning.
Caplinger's December 11 e-mail to Corso is also insightful. It had been turned over to
counsel for the Acting General Counsel as part of her subpoena request as it contains
Respondent's numbers for its subpoena production at the lower right hand side of the
document. The e-mail describes "Fishy" in a reference to Hernandez concerning the reasons
he was in favor of the union. The use of Hernandez nickname implies that there was
widespread knowledge of Hernandez strong union support throughout Respondent's facility. At
the time of the hearing, both Corso and Foca contended they first learned of Hernandez' union
activities on December 10 when they saw him distributing union literature. However, in
Respondent's pre-hearing position statement, it was stated that Corso and Foca did not learn
Hernandez was a union supporter until they received notification that he was chief observer at
the election. It goes on to state that prior to that time they thought he was opposed to the
Union. However, it was not until December 14, that the Union sent Respondent a fax identifying
Hernandez as the sole election observer. The inconsistency in these statements serves to
further undercut Respondent's claims as to Foca and Corso's knowledge of Hernandez union
activities and when it occurred. Moreover, the record evidence reveals that prior to
Sagastume's discharge three different supervisors, Morgan, Saia, Ramos, and by inference
McWhorter had knowledge of Hernandez union activities, and I have concluded, that despite
their claims to the contrary, Foca and Corso were apprised of by one or all of these individuals
of Hernandez leadership role in the union prior to Sagastume's termination. See, State Plaza,
Inc., 347 NLRB 755, 756-757 (2006); Dobbs International Services, 335 NLRB 972, 973 (2001);
and Dr. Phillip Megdal, D.D.S., Inc., 267 NLRB 82, 82 (1983).
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I also do not credit Corso and Foca's claims that they did not discuss Sagastume's
termination before the event took place. The evidence reveals that Foca shared Corso's anti-
union stance, by his own admission and by e-mails he had sent to Corso and others. The union
drive concerned drivers working for CSPC. Foca was the president and CEO of ECFC.
However, both ECFC and CSPC were housed in the same building, and shared office space.
Moreover, Foca was apprised of and/or consulted by Corso concerning every aspect of
Respondent's union campaign. Corso notified Foca of the Union's demand for recognition, and
of its subsequent filing of its representation position. Foca was in attendance during Corso's
conference call with Respondent's board of directors where Corso discussed Respondent's
campaign strategy. In fact, Foca was copied Corso's e-mail sent to the board of director's.
Corso called Foca in as a witness to the November 2 meeting with Hernandez and Vargas
where they complained about statements by Nixon directed towards themselves and
Sagastume accusing them of bringing the Union to the facility. Foca was notified when Corso
hired RBA concerning the campaign, and Foca was consulted about Respondent's going to 24
hour off duty police coverage at the facility during the campaign. Finally, on the day of the
election, Foca was asked by Corso to report early at the guard house, where Foca relayed his
observations to Corso. Foca was keenly aware of the sensitive nature of supervisory conduct
during the course of the campaign, as he testified he had received training concerning it. Foca
claimed he determined to terminate Sagastume prior to November 2, and although she was the
subject of the meeting he attended with Corso and Hernandez concerning accusations of union
activity, he testified he failed to inform Corso of that decision until November 17 when he sent
the e-mail to Corso notifying him that the decision had already been made. The November 17
e-mail itself was copied to Respondent's attorney, and it was written in such a way as to set out
Respondent's litigation strategy. Foca had the wherewithal to notify Respondent's counsel
concerning his actions including Sagastume's termination, but claimed he failed to consult
Corso in advance of the decision and implementation terminate a long time employee, who had
been the subject of a meeting he attended with Corso concerning accusations of her and her
husband's Union activities. In sum, I do not credit the testimony of Foca and Corso that Corso
was not consulted in advance concerning Sagastume's discharge. I have concluded their
contention here was just part of a litigation strategy in an unsuccessful effort to attempt to shield
Corso's avowed antagonism towards the Union from the decision making process.
Accordingly, I have concluded the counsel for the Acting General Counsel has
established a strong prima facie case in terms of animus, knowledge, and timing of
Sagastume's discharge that it was motivated by her husband's union activity, and her refusal to
attempt to persuade him to cease that union activity. Therefore, the burden shifts to
Respondent to establish that Sagastume would have been terminated absent Hernandez' union
activities.
For the following reasons, I find Respondent's defense concerning Sagastume's
termination is pretextual. In the first instance, it must be said that while management of the
tomato department nominally changed, there was no actual department transfer. Following
November 18, the employees remained on CSPC's payroll, and the location of the tomato
department remained the same with CSPC accountable for the rent for the space it was
occupying. As of November 18, the changes that were made concerning the tomato
department was that ECFC officials Foca and Zeleznik replaced CSPC officials Moore and
Callas in the management of the department. Three tomato department line employees were
promoted to lead persons, and Zagastume was terminated.
Concerning Zagastume's termination there was no claim that she was not performing her
work properly. In fact, Foca testified Zagastume's performance was not an issue, and Ramos
testified she was a trusted employee. While Foca and Zeleznik maintained there was an
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extensive study of Zagastume's duties by Clark prior to her termination, I do not credit this
testimony. First of all, Foca, Zeleznik, and Clark's involvement with the department came about
as a result of the increase in business and specifications required in Respondent's providing
tomatoes to Giant. However, Zagastume's principle function involved inputting information into
Respondent's Excel computer program regarding the repack line, which had nothing to do with
Giant's tomato order. Rather, repack involved breaking produce products, other than tomatoes,
into smaller packages for customers such as restaurants. Zagastume credibly testified that
holidays such as Thanksgiving constituted a busy time in the performance of her work. She
testified that during September through her termination she was working in excess of 40 hours a
week, sometimes as much as 50 hours a week.82
Foca testified that it was his decision to eliminate Sagastume's position, with Zelenik's
input. Foca testified that beginning in July he had Clark do analytical studies and it looked liked
ECFC's nine administrative employees could easily absorb what looked like 15 to 20 hours a
week of administrative work performed by Sagastume. He testified they could send someone
down to the tomato department from the ECFC administrative department to perform
Sagastume's work and still complete the customer service work the ECFC employees were
already performing. Foca testified it was also the intent to improve the spreadsheet Sagastume
was using to move it into the ECFC system to increase the accuracy of the spread sheet.
Despite Foca's claims of a need to change spreadsheets for the tomato department, as of the
time of the hearing this never occurred. Foca testified phones could have also been transferred
downstairs to the tomato department for the ECFC administrative personnel to handle customer
service calls while they were completing the tomato department spreadsheet. However, there is
no credible evidence that this was ever done or that anyone ever took customer service calls
from the tomato department. Foca testified that for the first 2 or 3 months following
Sagastume's termination an employee from the ECFC admin department came and sat at
Sagastume's desk and performed Sagastume's repack administrative work using the Excel
spreadsheet used by Sagastume, and that the ECFC employee was working at the tomato line
a few hours a day. Foca testified the administrative employee was transferred out of the tomato
department assignment after the 2 or 3 months and Sagastume's administrative work was
thereafter completely done by the department supervisors, Ramos, Perdomo, or A. Hernandez.
He testified they were never trained in ECFC software and it was determined that software was
not needed due to the simplistic nature of the operation of the tomato department. Foca
testified the managers do not take calls from customers.
Unlike Foca, who testified Clark had been studying the processes of the tomato line,
including Sagastume's position since July, Zeleznik testified the elimination of Zagastume's
position was based on his, Foca and Clark's observations September forward. While Foca
testified Sagastume's administrative work was estimated at 15 to 20 hours a week, Zeleznik

82 Sagastume estimated when it was very busy at Respondent she was sometimes
spending 35 hours a week typing information in the computer concerning production information
for the repack line. Sagastume testified her duties included going through the warehouse to
verify that the actual inventory reflected that which was recorded in the Respondent's computer
system. She testified she also spent 15 hours a week in the repack department, mainly from 8
to 9 a.m. when she packed produce, or made boxes for packing produce. While Respondent
point's out in its brief Sagastume's math may have been off, she testified it was only during a
busy periods that she spent 35 hours a week on the computer, the inference being these
estimates were based on periods when she worked over time.
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testified it was probably a couple of hours a day job.83 Zeleznik testified he thought the ECFC
administration could absorb all of the accounting, purchase orders, sales orders, and inventory
adjustments entailed in Sagastume's job, and the daily Excel spreadsheet could be handled by
Perdomo who was supervising the repack line. Thus, contrary to Foca who testified it was
planned that an ECFC admin employee would come and sit at Sagastume's desk to perform the
Excel spreadsheet work, Zeleznik testified it was his plan that this work be handled by Perdomo
for at least the first 3 to 6 months following Sagastume's termination. These inconsistencies
between the plan Foca envisioned and the one envisioned by Zeleznik whose responsibility it
was to run the department upon its transfer, and who testified he was in fact running it prior to
the November 18 official transfer support my conclusion that there was no plan to terminate
Sagastume until the evening before her termination took place. It also supports my conclusion
that the reasons proffered by Respondent for her termination were not drawn through reasoned
analysis as Foca contended, but were pretextual and the result of a knee jerk reaction to her
husband's union activities and her November 17 refusal to Ramos to try to talk Hernandez out
of those activities. Moreover, while Zeleznik testified he thought the ECFC admin department
could handle the purchase and sales orders for the tomato department, he admitted he did not
even know for sure if Sagastume had done that work. Sagastume also credibly testified that
Perdomo was out on sick leave at the time of her termination thereby undercutting Zeleznik's
contention that he had studied the situation and planned to use Perdomo on the Excel
spreadsheet at the outset of Sagastume's termination.
In addition, contrary to Foca, who testified that an employee from ECFC admin worked
at the tomato department performing Sagastume's work for 2 to 3 months, Zeleznik estimated
ECFC admin employee Cruz was only there for 2 or 3 weeks before the three tomato
department supervisors took over Sagastume's administrative department functions. Zeleznik
testified the nature of the tomato department administrative work, which ebbs and flows during
the course of the day required the individual performing the Excel spread sheet work to be in
stationed in the tomato department full time, which should have been known prior Sagastume's
termination if there had been any reasoned analysis concerning her replacement. Yet, it was
Foca's testimony that he planned to have all of the work performed by an ECFC administrative
employee splitting time between the ECFC admin office and the outdoor tomato department.
Finally, Zagastume testified the tomato department was a very noisy place to work due
machinery there which included for fork lifts, pallet movers, and the line conveyor belts. This
further undermines Foca's claim that a reasoned analysis revealed to him that it was a good
idea to have phones placed there so an ECFC admin employee could take phone calls from
customers at the department. Thus, there were major inconsistencies in the testimony between
Foca and Zeleznik as to the nature of the planning concerning the elimination of Sagastume's
admin position, and very little of Foca's alleged plan was actually put into practice supporting my
conclusion that there was no real plan. The software was not changed from Sagastume's Excel
program to the ECFC program, and there was no evidence that anyone was taking any
customer calls from the tomato department. Rather, the evidence revealed the work continued

83 Zeleznik testified he obtained the estimate of Sagastume's hours on administrative work,
not from Clark, but from Ramos. This assertion is not credible because Ramos testified on busy
days Sagastume spent 3 and 1/2 to 4 hours a day on the computer. Sagastume's credited
testimony reveals she was terminated at a busy time of the year. Thus, Foca, Zeleznik, and
Ramos gave different accounts of her administrative work load. While Zeleznik testified he
obtained this information from Ramos, Ramos testified before they terminated Sagastume, they
never asked him any questions about the department. The divergence of testimony supports a
conclusion of the absence of any planning and that the reasons advanced for Sagastume's
termination were pretextual.
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to be performed in the tomato department largely by tomato department personnel in the same
manner using the same Excel spreadsheet Sagastume had used prior to her termination.
Zeleznik testified that at the time of the hearing, a tomato department employee named
Robles currently spends no more than 10 hours a week performing Sagastume's Excel
administrative work, and that she mainly does the work in Perdomo's absence when he has a
day off. Of course, Zeleznik originally estimated there was only 10 hours of work a week to be
done. However, he testified at the hearing that Perdomo's back up was performing 8 to 10
hours of work alone. Zeleznik also testified Cruz was still doing the spread sheets on
Perdomo's day off.84 That these employees working continued working on the repack
spreadsheet was unknown to Foca as he testified at the time of the hearing the supervisors
were doing the work by themselves.
The testimony of Respondent's officials concerning the decision to eliminate
Sagastume's position was not only internally inconsistent; it contradicted positions set forth in
Respondent's pre-hearing position statement. Respondent's February 15, 2011 position
statement to Region 5, described Sagastume's duties somewhat differently than the description
provided by Foca, Zeleznik and Ramos. It was stated in the position statement that:
Charging Party worked for Coastal Sunbelt as Repacking Administrator for the
tomato/repacking lines. As an administrator, Charging Party inputted all tomato products
received by the company into accounting software. She also used Microsoft Excel
spreadsheets to compute the cost of the items that were received, and the costs based
on repacking the products. (GC Exh. 30 page 4).
However, there was no claim at the hearing that Sagastume inputted computer information
related to tomato products. Rather, the testimony revealed she inputted information into the
computer related to the repack line which dealt with non tomato produce. It was also stated in
the pre-hearing position statement that:
The overwhelming majority of Charging Party's job duties were spent in front of a
computer working on various software and cost analysis. A small percentage of
Charging Party's job duties involved working on the tomato/repacking lines. (GC Exh. 30
page 7).
However, at the hearing Respondent's officials in particular Foca and Zeleznik sought to
minimize the amount of time Sagastume spent on the computer, in an effort to assert her
position was easy to replace by others at the time of her termination. Finally it was stated in
Respondent's February 15, 2011 position statement that:

84 Sagastume's supervisor Ramos testified that on busy days Sagastume's computer work
took 3 and 1/2 to 4 hours a day. Ramos testified that when Sagastume was terminated Foca
and Zeleznik told him that ECFC admin employee Cruz was going to be doing Sagastume's
work. Contrary to Foca, who testified Cruz had transferred out of the tomato department,
Ramos testified she was still working there on a part time basis at the time of the hearing,
although Ramos was somewhat evasive as to how many hours she spent there a week. Ramos
testified that Robles works on the spreadsheet, as does A. Hernandez it and Perdomo does it.
Ramos testified he rarely does it. Ramos testified he tried to teach the three department line
leaders to do it, but they claimed it was boring and refused to do it.
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In addition to the timing, Coastal Sunbelt can also show that it would have taken the
same actions, regardless of the protected activity, because it was necessary to meet the
specification required by the Giant Grocery Stores contract. Coastal Sunbelt lacked the
equipment, procedures, and training to meet the demands placed upon it by the Giant
Grocery Stores Contract. Moreover, the entire operation fit more in line with the
operations of Fresh Cuts, as Fresh Cuts regularly provides valued-added services of
sorting chopping, cutting, and repacking many different types of produce. Having all
value added services under one company also made good sense from an efficiency and
economies of scale perspective because it allows the employer to interchange
employees based on which lines are slow or busy. (GC Exh. 30, page 9)
Yet, there was no claim at the hearing by Respondent's officials that there was any change in
equipment following the nominal transfer of the tomato department to ECFC. Rather, it
appeared from their testimony the department remained in the same place, under CSPC's
payroll and accounting ledger, and aside from the elimination of Sagastume's position and the
promotion of three individuals to lead persons the operation of the department remained
essentially unchanged. Moreover, record evidence revealed that ECFC department employees
worked inside, were located in a different section of the plant than tomato department
employees, and as Sagastume credibly testified they had to meet more stringent sanitary
conditions for ECFC customers than customers on the tomato line precluding the transfer
between line employees of those two separate operations. They were also under a different
payroll system than tomato department employees. There was no contention at the hearing that
there was any transfer of the tomato department line employees with ECFC lines employees, or
that this was ever contemplated as a reason for the transfer. Thus, there was shifting positions
between Respondent's officials as to the planning behind Sagastume's termination and the
department transfer at the hearing, as well as between Respondent's position statement and
that advanced through record testimony. Such shifting of rationales is evidence that the
Respondent's proffered reasons for terminating Sagastume are pretextual. See Approved
Electric Corp., 356 NLRB No. 45, slip op. at 2-3 (2010) (citing City Stationery, Inc., 340 NLRB
523, 524 (2003) (nondiscriminatory reasons for discharge offered at the hearing were found to
be pretextual where different from those set forth in the discharge letters); and GATX Logistics,
Inc., 323 NLRB 328, 335 (1997) (“Where … an employer provides inconsistent or shifting
reasons for its actions, a reasonable inference can be drawn that the reasons proffered are
mere pretexts designed to mask an unlawful motive.”).
The timing advanced by Respondent for the department transfer and Sagastume's
termination in particular is suspect. Foca testified he determined, through a meeting with
Zeleznik on Friday November 5, that they were going to proceed with the transfer. Foca was
out of town the beginning of the next week, but returned to the facility on Friday, November 12.
Foca was at Respondent's facility Monday through Thursday evening, November 15 to 18. Yet,
he waited until Wednesday at November 17 at 8:32 p.m. before notifying Respondent's
personnel including Corso that the department transfer which included the promotion of three
individuals with pay raises, and Sagastume's termination was to take place on Thursday,
November 18. Sagastume's testimony revealed she had been coercively interrogated by
Ramos at around 3:30 to 4 p.m. on November 17, and that she saw Ramos returning from
Respondent's offices around 6 p.m. after he was away for a substantial period of time from the
work place. Foca offered no good reason as to why he picked Wednesday, November 17 to
initiate the department change. In fact, Zeleznik, after waffling in his testimony admitted that
although he was the department manager in waiting, he received no advance notice that
November 17 was to be the day of the announcement. Rather, Zeleznik testified Tuesday was
the start of the pay period at Respondent and it made the most sense for these personal actions
to take place on Tuesday. Zeleznik offered no good reason as to why they took place on
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Thursday, and none was provided by Respondent lending to the ultimate conclusion that Foca's
late night November 17 e-mail related directly to Ramos unlawful interrogation of Sagastume on
the Wednesday afternoon November 17.
Finally, Ramos testimony supports a finding of pretext. Contrary to Foca and Zeleznik's
claims that they worked with Ramos with multiple conversations towards the tomato department
transfer, Ramos testified he was not consulted as to the transfer of the department to ECFC.
Rather, Ramos testified he only had one conversation with the ECFC officials prior to the
transfer, and one after the transfer notifying him that the transfer took place. Ramos testified
that although he was consulted about the selection of and the promotion of three line personnel
to lead positions, Ramos was not consulted about the decision to terminate Sagastume. In fact,
he testified he was surprised by the decision. Zagastume performed a major function in the
tomato department including keeping the department work flow and inventory records for
repack. Sagastume helped maintain chlorine levels in the tomato ripening process. She
credibly testified that, at Ramos behest, when she worked on the tomato line she served in a
lead person type capacity in that inspected the quality of the tomatoes and transferred people
back and forth between the repack and tomato lines. The failure to consult Ramos, her
immediate supervisor about her termination as Respondent was approaching Thanksgiving a
busy time, evidences the decision to terminate her was not due to legitimate business reasons,
and that it was pretextual. The Board has long held that an inference of unlawful motivation is
strengthened when an employer fails to consult with an employee's immediate supervisor
before taking action against the employee. See, Williams Services, Inc. 302 NLRB 492, 500
(1991); Lancer Corp., 271 NLRB 1426, 1427 fn. 6 (1984); Industry General Corp., 225 NLRB
1230, 1233 (1976), enfd. 564 F.2d 99 (6th Cir. 1977); Midwest Hanger Co., 193 NLRB 616, 627
(1971), enfd. in relevant part 474 F.2d 1155, 1159-1160 (8th Cir. 1973), cert. denied 414 U.S.
823 (1973).85
In sum, I find that counsel for the Acting General Counsel has established a strong prima
facie case that Sagastume's termination was unlawfully motivated.86 Since I have concluded

85 While Foca testified the tomato department was transferred to ECFC because in his view
the department needed more supervision, Ramos testified that both before and after the transfer
he essentially runs the department with very little input from above. Additionally, Foca and
Zeleznik testified that Zagastume was not considered for department retention following the
elimination of her position because all she was suited for was line production work at $7 to $8
an hour and this was too much of a pay cut. However, Zagastume had much more seniority
than any of the individuals promoted to lead person at the time of her transfer. She also was
familiar with Respondent's Excel software applications, a function Ramos testified he was
unsuccessful in getting all the newly appointed lead personnel to perform. Zagastume
described her duties as that akin to a lead person in terms of inspections and rotating other
employees between lines. Yet, no valid explanation was given why she was not considered for
the lead person position. Regardless, I find the elimination of Sagastume's position standing
alone was pretextual. It should be noted that while there was a claim that Sagastume was
excessed purportedly to save money, her administrative functions were purportedly largely
transferred to Perdomo and Hernandez, and around that time period they were promoted and
made salaried personnel.
86 I find the nominal transfer of the tomato department to ECFC from CSPC was a sham
transaction to shield Sagastume's unlawful discharge. Following the transfer, the department
remained in place, remained on CSPC books and payroll, employees retained their seniority
and Ramos largely ran the department with little input from higher management before and after
the purported transfer. However, regardless of whether the department transfer is considered to
Continued
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Respondent's defense was pretextual, no further analysis is required. Rood Trucking Co., 342
NLRB 895, 898 (2004). Accordingly, I find Respondent terminated Sagastume in violation of
Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Coastal Sunbelt Produce, Inc., otherwise known as Coastal Sunbelt Produce
Company (herein Respondent) is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Drivers, Chauffeurs & Helpers Union No. 639 a/w the International Brotherhood of
Teamsters is a labor organization within the meaning of Section 2(5) of the Act.
3. By on November 17, 2010 coercively interrogating Mayra L. Sagastume by
questioning her about her and her husband's Union activities Respondent has violated Section
8(a)(1) of the Act.
4. By discharging Mayra L. Sagastume on November 18, 2010, because of her
husband's union activities, and because she refused to request him to cease in those activities
Respondent has discriminated against Sagastume in order to discourage its employees
participation and or membership in a labor organization in violation of Section 8(a)(1) and (3) of
the Act.
5. Respondent’s unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Respondent having discriminatorily discharged
employee Mayra L. Sagastume must offer her reinstatement and make her whole for any
loss of earnings and other benefits from November 18, 2011, the date of Sagastume's
discharge to the date of a proper offer of reinstatement, less any net interim earnings.
Backpay shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No.
8 (2010), enf. denied on other grounds sub.nom., Jackson Hospital Corp. v. NLRB, 647
F.3d 1137 (D.C. Cir. 2011).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended87
ORDER
The Respondent, Coastal Sunbelt Produce, Inc., otherwise known as Coastal Sunbelt
Produce Company located at Savage, Maryland, its officers, agents, successors, and assigns,
shall
_________________________
be a legitimate transaction, I find Sagastume's discharge to be unlawfully motivated for the
reasons stated.
87 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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1. Cease and desist from
(a) Coercively questioning its employees about their union activities, or the activities of their
family members on behalf of Drivers, Chauffeurs & Helpers Union No. 639 a/w the International
Brotherhood of Teamsters or any other labor organization.
(b) Discharging employees because they engage in union activities, or because of the union
activities of their family members and to discourage employees from engaging in union
activities.
(c) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer employee Mayra L. Sagastume full
reinstatement to her former position without prejudice to her seniority or any other rights or
privileges previously enjoyed, discharging any employee, if necessary.
(b) Make Mayra L. Sagastume whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set forth in the remedy section of this
decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful termination of Mayra L. Sagastume, and within 3 days thereafter notify Sagastume in
writing that this has been done and that the termination will not be used against her 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 to be designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such 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 Savage, Maryland location
copies of the attached notice marked “Appendix.”88 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being signed by the Respondent's authorized
representative, 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. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.89
Reasonable steps shall be taken by the Respondent to ensure that the notices 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 its operations at Savage,
Maryland, the Respondent 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
November 17, 2010.

88 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
89 I find Respondent's notice posting location requirements and e-mail requirements set forth
above apply to locations where notices are posted for CSPC as well as ECFC employees, and
that any electronic distribution of the notice should be tendered to both categories of employees.
In this regard, Respondent asserts the tomato department is now managed by ECFC, but the
employees remain on CSPC's payroll. The testimony of Vargas and Hernandez reveals they
performed work for both entities, and Foca, the CEO for ECFC reports to CSPC CEO Corso.
Foca participated in Respondent's anti-union campaign, spoke to his employees about it, and
participated in the decision to discharge Sagastume.
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(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. February 17, 2012.
_______________________
Eric M. Fine
Administrative Law Judge
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT coercively question our employees about their union activities, or the
activities of their family members on behalf of Drivers, Chauffeurs & Helpers Union No. 639 a/w
the International Brotherhood of Teamsters or any other labor organization.
WE WILL NOT discharge employees because they engage in union activities, or
because of the union activities of their family members and to discourage employees from
engaging in union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order, offer employee Mayra L.
Sagastume full reinstatement to her former position without prejudice to her seniority or any
other rights or privileges previously enjoyed.
WE WILL make Mayra L. Sagastume whole for any loss of earnings and other benefits
suffered as a result of her unlawful termination in the manner set forth in Board’s decision.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful termination of Mayra L. Sagastume, and within 3 days thereafter notify
her in writing this has been done and the termination will not be used against her in any way.
COASTAL SUNBELT PRODUCE, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov. 103 South
Gay Street, The Appraisers Store Building, 8th Floor, Baltimore, MD 21202-4061(410) 962-2822, Hours: 8:15 a.m. to
4:45 p.m. THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE
ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (410) 962-3113.