Coastal Sunbelt Produce

National Labor Relations Board - Board Decisions

Sep 20, 2012

358 N.L.R.B. 1287 (N.L.R.B. 2012)

COASTAL SUNBELT PRODUCE 1287

358 NLRB No. 135
Coastal Sunbelt Produce, Inc. and Mayra L. Sa-
gastume. Case 05–CA–036362
September 20, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE, AND MEMBERS HAYES
AND BLOCK
On February 17, 2012, Administrative Law Judge Eric
M. Fine issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Acting Gen-
eral Counsel filed an answering brief, and the Respond-
ent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs1 and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order.

1 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
The Respondent asserts that it has reserved the right to argue that
Board Members Block and Griffin should be disqualified from ruling in
this proceeding on the ground that their recess appointments to the
Board by the President were invalid. For the reasons set forth in Center
for Social Change, Inc., 358 NLRB 161 (2012), we reject this argu-
ment.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the judge’s findings.
3 We adopt the judge’s conclusions that the Respondent unlawfully
interrogated Mayra L. Sagastume in violation of Sec. 8(a)(1) of the Act
and unlawfully discharged her in violation of Sec. 8(a)(3) and (1).
With respect to the evidence of animus, the Respondent has excepted to
the judge’s reliance on the Respondent’s antiunion campaign, its hiring
of an outside consultant, and CEO John Corso’s statement to employ-
ees that he felt stabbed in the back by the organizing campaign. The
Respondent contends that the foregoing actions are protected by Sec.
8(c) of the Act. We find it unnecessary to rely on that evidence as
proof of animus, because we find that the record amply demonstrates
animus for the other reasons stated by the judge. We further find it
unnecessary to rely on the judge’s inferences as to Corso’s knowledge
of union activity on the part of Luis Hernandez, Sagastume’s husband.
Supervisors Joey Saia and Julio Ramos both knew of Hernandez’ or-
ganizing activity, and Sagastume admitted her prounion sentiments to
Ramos hours before the Respondent decided to discharge her. We
impute the supervisors’ knowledge to the Respondent, in the absence of
credited testimony to the contrary. Gestamp South Carolina, LLC., 357
NLRB 1563, 1572 (2011).
Chairman Pearce and Member Block additionally do not rely on the
judge’s discussion of agency at fn. 77 of his decision, but instead affirm
the judge’s finding that the Respondent is liable for its supervisors’
coercive statements regardless of specific authorization.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Coastal Sunbelt Produce,
Inc., Savage, Maryland, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.

M. Anastasia Hermosillo, Esq., for the Acting General Counsel.
Kara M. Maciel, Esq., of Washington, D.C., and Evan Rosen,
Esq., of Atlanta, Georgia, for the Respondent.
Mayra Sagastume, of Jessup, Maryland, 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 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 Sun-
belt 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 Sa-
gastume 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 engag-
ing in these activities in violation of Section 8(a)(3) and (1) of
the Act.3
On the entire record, including my observation of the wit-
nesses’ demeanor, and after considering the briefs filed by the
Acting General Counsel and Respondent, I make the following4

1 All dates are in 2010, unless otherwise indicated.
2 While the complaint names Respondent as Coastal Sunbelt Pro-
duce, Inc., Respondent was referred to on the record by Respondent’s
witnesses as Coastal Sunbelt Produce Company (CSPC). Respondent
concedes in its posthearing brief that Coastal Sunbelt Produce, Inc. is
appropriately alleged as the responsible party for Sagastume’s termina-
tion.
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 Sa-
gastume was terminated because of her husband’s union activities in
violation of Sec. 8(a)(3) and (1) of the Act. Respondent was on notice
of the Acting General Counsel’s theory, and the issue was fully litigat-
ed 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 Corp., 179 F.2d
749, 754 (2d Cir. 1950), revd. 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 credit-
ed evidence, not credited, or not essential to the findings herein. Fur-
ther discussion of the witnesses’ credibility is set forth below.
1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness 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 en-
gaged 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 stipu-
lated 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; Jen-
nifer 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 Com-
pany (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 presi-
dent of ECFC, Foca is not employed by that company. Rather,
Foca has been employed by CSI. Foca’s paycheck is from CSI,
but the money comes from ECFC since CSI has no revenue.6
ECFC employees receive their paychecks from ECFC. Foca
testified the money he is paid is allocated to the operating com-
pany 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.

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.
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 restau-
rants and hotels. Their customers order a variety of produce,
such as apples, oranges, and tomatoes by the case. CSPC sup-
plies its customers 6 days a week. Foca testified ECFC is a
complimentary business to CSPC. Foca testified he was for-
merly the chief financial officer of both CSPC and ECFC.
Corso testified in December 2007, they acquired L & M Pro-
duce.
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 in-
clude fresh salsa and other items that can be found in grocery
stores, which is about 50 percent 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 origi-
nal state, and has to follow strict quality systems. They have to
meet retail guidelines in that many retailers want their proces-
sors 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 business-
es and they sell product to each other. Foca testified the trans-
actions 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 compa-
nies 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
1289
COASTAL SUNBELT PRODUCE

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 activ-
ity that the Acting General Counsel contends Sagastume was
unlawfully terminated. Clark testified he was informed the
initial 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 work-
ing for CSPC as a driver when CSPC purchased L & M Pro-
duce.10 Hernandez retained his L & M seniority when he was
hired by CSPC. Hernandez’ title at CSPC was CDL float driv-
er. Hernandez did both local and over the road driving.11
Hernandez testified that in the summer of 2010 he had a
conversation with coworkers 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 compa-
ny 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

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.
9 Hernandez testified he can read and write in Spanish and he under-
stands some English. Hernandez testified through the use of an inter-
preter 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
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 su-
pervisor 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 organiz-
ing committee. There was a discussion about a second meet-
ing. 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. Gib-
son ran the meeting which took place at Local 639. Hernandez
and Aguilera told the other employees about the meeting. Her-
nandez 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 addi-
tion 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 email, with the subject entitled “Driver Thing.”
The email reads:

John: Larry Hooker-one of the older back drivers-called me
yesterday and told me that the black guys are now being ap-
proached 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 email to be
convincing. Corso testified he did not know the reference to
“Driver Thing” referred to a union campaign. When asked if

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 unde-
nied by Corso. I have credited Hernandez as to his conversation with
Corso and as to the discussions at the soccer game.
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 Au-
gust 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.
1290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

he knew what the petition was about, Corso testified, “[I]t
looked like this rumor was something was going on, clearly,
but I—but it was a rumor. I mean, I hear rumors about every-
thing 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 followup with McWhorter
or ask him what the petitions were in reference to.
Corso’s testimony disavowing knowledge pertaining to the
content of McWhorter’s email becomes all the more incredible
when viewed against this backdrop. 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 discus-
sions 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 email 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 employ-
ees 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 email
from McWhorter entitled the “Driver Thing” that Corso did not
followup with McWhorter for clarification concerning the na-
ture of the petitions and the identity of Javier. The timing of
the petition signing by employees clearly refers to the employ-
ees signing union cards, as Corso surmised in his testimony. I
have concluded Corso did follow up with McWhorter and that
Corso was aware the email 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 2 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 driv-
ers. 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 mu-
tually agreeable third-party. Corso received the letter on Octo-
ber 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 re-
sponded 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 conduct-
ed 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 employ-
ees could pay him back that way, that he felt he had been
stabbed in the back. Hernandez testified that, during the meet-
ings 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 testi-
fied 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 ac-
cept 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 hap-
pened 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 direc-

15 Clark testified Hernandez was Clark’s lead committee person in
helping Clark gather and disseminate information to the other employ-
ees. Clark identified 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.
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 re-
1291
COASTAL SUNBELT PRODUCE

tors were located in Atlanta. Corso identified an email he sent
to the board of directors, including Foca on October 27 con-
firming the 2 p.m. meeting. The email 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 prom-
ises vs. guarantees, about dues and about the loss of indi-
viduality 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) work-
ers 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 De-
cember forward
-created Logistics department
-hired Hay Group20

questing 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 employ-
ees. Foca testified it was also his opinion that the people worked better
without a union. In this regard, on March 22, Foca sent an email 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 email 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 work force. By email dated December 3, Foca sent an attach-
ment 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 evi-
dence.
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 cam-
paign was over. Corso testified he communicated to the drivers that
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 Communica-
tion) Thursday Oct 28th.

During the October 27, meeting with the board members,
Corso discussed the Union’s October 13 demand for recogni-
tion. 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 testi-
fied they could potentially stop doing business with Respond-
ent. 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 testi-
fied 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.

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 adjust-
ments 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 unilateral-
ly move on things the way he would have before the Union was in-
volved.
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 in-
creased the police presence during the union election period. Foca
testified he participated in the decision to have it done.
1292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Union Organizer Clark held a union meeting on October 30
in a restaurant in Jessup, Maryland, around 3 miles from Re-
spondent’s facility. Clark testified around 35 to 40 of Re-
spondent’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 em-
ployees not to talk to each other during work about the Union.
On October 30, Stalio Callas, general manager-operations,
sent Corso an email 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 poten-
tially 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 toe-
ing 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 Her-
nandez 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

22 The meeting came about because Hernandez asked to speak with
Corso. Hernandez testified, “[B]ecause 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.
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 Hernan-
dez was not involved in the Union.24
Hernandez testified Corso took him to human resources on
November 2 where Hernandez met with Erin Morgan and Wal-
ter Vasquez, Hernandez’ supervisor, who Corso called to pro-
vide 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 Her-
nandez because Nixon was talking about Hernandez’ wife,
Vargas, and Hernandez, saying really bad things that and 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 Her-
nandez 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 No-
vember 2, but Morgan did not show him the statement. Her-
nandez 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 Re-
spondent. Hernandez did not hear the remarks directly from
Nixon.
Vargas testified Corso accompanied them to human re-
sources 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

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 manage-
ment 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.
25 At that time, Arias came up to give a statement because Hernan-
dez told him about the meeting. Morgan left the room and while she
was out Hernandez told Vasquez that Nixon was talking about Hernan-
dez’ 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 termi-
nate him, but they would not fire Hernandez directly, they would look
for an excuse to fire him, or pressure him into resigning.
1293
COASTAL SUNBELT PRODUCE

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 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 Var-
gas 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 con-
versation with Corso about Nixon. Present were Corso, Mor-
gan, someone named Joey, and Milagros, who worked for hu-
man resources. Sagastume testified that she asked for the meet-
ing because she found out Nixon 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 Nix-
on 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. Ra-
ther, 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 remem-
ber. 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?

26 I have credited Hernandez’ and Vargas’ testimony as to the con-
tents 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.
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. Nix-
on 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.
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 Nix-
on. 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

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 that he could have had a conversa-
tion 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 confronta-
tion between the two. I have concluded that given the nature of Her-
nandez, Sagastume, and Vargas complaint to Corso, as well as Re-
spondent’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 con-
cerning 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.
28 In fact, as set forth later on in this decision, shortly before Sa-
gastume was terminated, Corso did request the results of Morgan’s
investigation of the events of November 2.
1294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 em-
ployees’ 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 im-
proved. 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 that 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 Nix-
on 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 that Hernandez started
to use some very vulgar language and became extremely ani-
mated about what he would have done if he had heard it direct-
ly. Corso told Hernandez to calm down and that he could un-
derstand Hernandez being upset. Hernandez told Corso that 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 and that it was great. Vargas said to Corso
he had been at L & M a long time, that at Coastal, he made
good money and was very happy. Corso testified they volun-
tarily stated to Corso with Foca in the room that they had noth-
ing to do with the Union. Corso said that was fine that he trust-
ed them. Corso directed them to human resources, stating that
they need to make statements and that 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, nonunion,
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 testi-
fied there were two points in the conversation. One was Her-
nandez 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 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 testi-
fied 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 peo-
ple 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 No-
vember 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 No-
vember 4, with the heading, “Re: Union Prevention Proposal,”
which was underlined and in bold ink. In the letter, Brown
stated, “[W]e 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 employ-
ee 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. Weeks 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 noti-
fied Foca that he entered into this agreement with RBA. Corso
identified an email 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 email, “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 for-
warded a copy of the email 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, includ-
ing Foca. Corso testified Respondent started working with
1295
COASTAL SUNBELT PRODUCE

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
trained to basically speak about only the facts, opinion, or expe-
rience.” 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 organiza-
tion drive, don’t think you can hang back and remain neutral.”
Hernandez testified he attended meetings held by manage-
ment concerning the Union. He testified the meetings began
around the end of October. Attendance was mandatory. Her-
nandez 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 attend-
ed one per week. Vargas testified the meetings started after
Corso received a letter from the Union. Attendance was man-
datory, 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 assis-

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. Hernan-
dez’ payroll records from September 1 to December 30 show Hernan-
dez was paid a $25 bonus on each of November 18, December 2, 7, and
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 re-
ceived one $50 bonus on September 14. Hernandez estimated he at-
tended 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 recogni-
tion from the Union on October 15, and he testified he conducted meet-
ings 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 con-
cerning the Union after Respondent contracted for the services of labor
consultants RBA.
tants 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 peo-
ple 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 an-
other 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 testi-
fied Corso said he was against the Union. Corso said he pre-
ferred 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 con-
cerned 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 remem-

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’ de-
scription 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 re-
sponded, “[T]his 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.
1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

ber what I said.” The import was to make sure that we con-
ducted 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 Re-
spondent. 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 Her-
nandez he wanted to talk to him and it was personal.33 Hernan-
dez 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 in-
volved 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, 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 down-
stairs and talks to the supervisor, all the problems stay down-
stairs 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 Hernan-
dez, 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. Her-
nandez 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

33 Hernandez testified Saia frequently called Hernandez about work
or some other reason.
34 Hernandez went on to testify that he thought Saia had the conver-
sation 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 con-
voluted and I do not find Hernandez was told directly by Saia that
Corso asked him to talk to Hernandez.
try and stop the Union. Hernandez said, “[W]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 Sa-
gastume 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 Hernan-
dez was going to be concerning the Union.35
In crediting Hernandez and Vargas concerning their conver-
sations with Saia, except as specifically discussed to the contra-
ry in footnotes, I have taken into consideration that Hernandez
omitted the conversation from his prehearing 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 activities. Finally, Saia was
not called to testify creating an inference that he would not
have challenged the accuracy of Hernandez and Vargas’ de-
scriptions of their encounters with him.
Vargas testified McWhorter was one of the owners of L & M
Produce. Vargas testified McWhorter owns shares of Respond-
ent 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 termina-
tion. 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

35 Vargas testified he did not hear Saia directly question Hernandez.
However, Vargas later testified her heard Hernandez tell Saia that Her-
nandez supported the Union. Vargas testified that was around 1 to 2
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 friend. However,
Hernandez testified he thought, at the time of the trial, that his conver-
sation with Saia was the reason Respondent terminated Sagastume. In
this regard, Hernandez testified that when he informed Saia of Sa-
gastume’s termination that Saia did not seem surprised.
37 Vargas testified credibly about this conversation. McWhorter was
not called as a witness and therefore Vargas’ testimony was uncontro-
1297
COASTAL SUNBELT PRODUCE

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 Sa-
gastume’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 re-
ferred to as the broken room. The broken room is also referred
to as repack by the parties. Repack is part of the tomato de-
partment where Sagastume worked at the time of her termina-
tion 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 workload. She testified busy periods included holi-
days such as Thanksgiving and Christmas. At the time of her
termination at Respondent, Sagastume’s job title was adminis-
trator. Sagastume held that job title for 2-1/2 to 3 years. Sa-
gastume described her day at Respondent as early in the morn-
ing she issued reports on the produce for repack to find out the

verted. 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 supervi-
sors 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 Re-
spondent for around a year and one half at a different location. She
testified where she worked then is now referred to as ECFC at Re-
spondent. 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 cut-
ting 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 Fer-
nando. 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.
40 There is a department at Respondent outside the tomato depart-
ment 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.
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 employ-
ees 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 cor-
rect 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 to-
mato 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 every-
thing they needed to work. Sagastume also placed labels on the
pallets to make sure they went to the right place in the ware-
house. 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 fin-
ished 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 people in
the tomato department, which included repack where Sa-
gastume principally worked.43 There was one shift at the toma-
to department. Sagastume testified Perdomo started working
with them in the computer room in the tomato department.
Sagastume understood Perdomo was being trained to be anoth-
er supervisor. Perdomo started in the tomato department about

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.
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 re-
ferred to as such in this decision.
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 in-
cluded a table, two chairs, and two computers. Sagastume testi-
fied 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 No-
vember 2010, she was working more than 40 hours a week,
stating sometimes 46, 49, 50 hours from Monday through Fri-
day. 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 to-
mato 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 toma-
toes.
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, Sa-
gastume 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 testi-
fied she also typed the inventory into the computer. The inven-
tory 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 Sa-
gastume 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 depart-
ment, 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 de-
partment needed help. Then she helped them by doing every-
thing 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 employ-
ees who worked in repack. Sagastume testified she had respon-
sibilities with chlorine which was only used on the tomato line.
Sagastume had to check the chlorine level three 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 peo-
ple 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 testi-
fied 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 email 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 testi-
fied 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 email Corso asked Moore, “Did we ever follow up on
complaints Nixon, Javier, Luis and Myra lodged?” Moore
responded by email 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 re-
sponded, “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 man-
ner. Morgan’s notes reveal she asked Nixon if he could work
1299
COASTAL SUNBELT PRODUCE

with Vargas and Hernandez while her investigation continued
and Nixon said he thought he could.44
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 conversa-
tion 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. Sa-
gastume testified she was working at the computer as it was a
very busy day. Sagastume testified Ramos touched her shoul-
der 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 conversa-
tion: 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 Sa-
gastume 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 Un-
ion came in she would support it. Ramos said he did not think

44 Despite seeing the above email exchange, Corso maintained he did
not recall if he received followup 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 prounion 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 Sa-
gastume’s discharge.
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.
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 Hernan-
dez, 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 should apologize because
they are worried. Ramos told Sagastume if Hernandez apolo-
gizes 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 Her-
nandez 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. Sa-
gastume 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 spo-
ken 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. 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 be-
cause 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 around 6
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,

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 lunchroom 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.
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 to-
morrow. Sagastume testified the stairs lead to the offices.
Sagastume testified in a credible fashion concerning her em-
ployment history, job functions, and as to the contents of her
conversation with Ramos taking place the day before her termi-
nation.47 On the other hand, the same cannot be said concern-
ing the veracity of Ramos’ testimony.48 Ramos testified that,
during the course of her employment, Ramos considered him-
self 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 testi-
fied, “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 frequent-
ly talk with Sagastume at work, Ramos 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 manag-
ers did not want a union at the company. However, Ramos
testified he tried to avoid talking about it, and he was not inter-
ested 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 prehearing position statement that Ramos never ques-
tioned Sagastume about her husband’s union activities because

47 I have also credited Sagastume’s testimony as to her other conver-
sations with Ramos about the union campaign as described in this deci-
sion.
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.
“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 em-
ployees 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 pur-
posely 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 was 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 Sa-
gastume’s account of her conversations with Ramos concerning
the union campaign.
On Wednesday, November 17 at 8:32 p.m. Foca sent an
email 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 email 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 tran-
sition and analysis of the operations. We will be implement-
ing 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

The email stated Zeleznik will be announcing these changes in
a group meeting tomorrow morning. Foca testified the imple-
mentation of the tomato line transfer took place on November
18. Sagastume was the only one of about 40 tomato depart-
ment employees who were terminated as a result of the depart-
ment 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 a.m. Sagastume ar-
rived at the normal time for work and Ramos told her Zeleznik

50 See GC Exh. 30, p. 5 fn. 5.
1301
COASTAL SUNBELT PRODUCE

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 be-
cause 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 ac-
countant, 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 Mor-
gan 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 coworker who retrieved Sa-
gastume’s purse and Sagastume took the purse and left through
the door they told her. Following the meeting, Sagastume re-
peatedly called Ramos, but he would not return her calls. The
agreement Morgan asked Sagastume to sign is entitled, “Sever-
ance Agreement.” It states the parties to the agreement are
Sagastume and CSPC.51 Morgan sent an email sent on Novem-
ber 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 email please disable Sagastume’s tomato line building and
system access immediately. Morgan states she may not enter
CSPC 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 email was “termination of employment” and it was labeled
of high importance. Ramos was not copied the email.
Sagastume testified she would not be able to work in a posi-
tion that required her to write, read and speak mostly in Eng-
lish. 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

51 During the November 18 meeting with Morgan, no one told Sa-
gastume how much money they were offering her to sign the termina-
tion papers, but that it would be the equivalent to 4 weeks vacation pay.
Sagastume testified she did not receive any severance pay, but, follow-
ing the meeting, she did receive vacation pay that she had previously
earned.
reach her hourly rate. Sagastume testified A. Hernandez and
Perdomo worked on the reports for the computers when Sa-
gastume 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 pro-
grams or other spreadsheets.
Sagastume recalled the addition of the Giant Foods business
to the tomato department. It made the tomato line and repack-
ing 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
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 Re-
spondent asserts were transferred from CSPC to ECFC on No-
vember 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 su-
pervisor. The only employee who was not transferred on No-
vember 18 was Sagastume. Sagastume was listed with a Sep-
tember 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 spe-
cific 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 testi-
fied 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 email to Corso concerning a

52 Corso and Foca’s testimony here is contradicted by Respondent’s
prehearing position statement which states they did not learn of Her-
nandez’ 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.
1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 al-
ways 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 work
place.53 Hernandez identified a December 13, letter to Corso.
The letter is signed by Hernandez, Vargas, and 11 other em-
ployees 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 photo-
graphs. 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 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 email correspondence
between himself and Corso, Foca then testified, “Okay. I was
letting him know what I saw sitting out front of our building.”

53 The tone of Caplinger’s email 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.
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 email 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.”
E. The Testimony of Respondent’s Witnesses Concerning Sa-
gastume’s Termination and the Transfer of the
Tomato Department from CSPC to ECFC
Corso is the president and CEO of CSPC and CSI. In Janu-
ary 2010, the tomato department, as run by CSPC, reported to
Stalio Callas who reported to Moore, vice president of opera-
tions of CSPC. Moore reported to Corso. The tomato depart-
ment 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 4- or 5-pound packages to meet customer re-
quirements. 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 manufactur-
ing 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 con-
cerns by Foca, the president and CEO of ECFC, about the to-
mato 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 stat-
ed 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 Sep-
tember, 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

55 The Union did not file any objections to the election or any unfair
labor practice charges.
1303
COASTAL SUNBELT PRODUCE

felt there was an urgency to accelerate the transition of the to-
mato 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 email at 8:32 p.m. The email 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 email 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
email and it was never discussed with him. Corso testified a
day or two after he received the email, 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 re-
ceived the November 17 email, 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 moti-
vated in any part by her husband’s support of the Union.
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 to-
mato 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 oppor-
tunity to provide whole tomatoes at the retail level. Focal testi-
fied 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 testi-
fied 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 re-
quired attention and CSPC did not have the skill set to deliver a
retail product as Giant expected. Foca testified he was con-

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.
cerned because it was ECFC’s customer and the account in-
volved 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 need-
ed 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 email ex-
change between himself and Jason Lambros, vice president of
purchasing of CSPC, dated July 6. The emails 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 to-
mato 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 envi-
sioned Ramos reporting to Zeleznik, and ECFC would take
over the management of the line, and they were going to im-
plement ECFC’s value stream model of operation for the de-
partment 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 imme-
diately, 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
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

formally transferred to ECFC. Despite the November 18 trans-
fer of the tomato department to ECFC, Foca testified the de-
partment remained, at the time of the hearing, under CSPC’s
profit and loss statement, and the tomato department supervi-
sors 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 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-percent increase in their volume with specs the tomato de-
partment had never seen before. Foca testified in September
Ramos did not officially start reporting to Zeleznik, but some-
where 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 email exchange on October 29, with
David Devries, a financial analyst with a Coastal Sunbelt email
address, to the size of the projected Giant business for 2011.
Foca estimated Respondent would process 1,800 cases of fin-
ished tomatoes per week for Giant. Foca testified that this
amount of tomatoes for Giant is about 10 percent of the toma-
toes that go through the tomato line on a weekly basis. Foca
testified it is a very significant volume. He testified the other
90 percent is distributed between approximately 1500 to 2000
customers. On November 3, Clark emailed Foca a chart Clark
created containing pictures demonstrating the proper size, col-
or, and packaging for tomatoes that met Giant’s specifications
as a visual aide for tomato department employees.57
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 im-
plement the tomato department transfer and they had already

57 Foca initially testified he received the chart from Clark on Sep-
tember 24. However, Respondent later produced the actual email 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 emails from
Giant about it, or remember receiving any written complaints. He
testified the timeframe of the complaints was from July through Octo-
ber 14 as part the sampling process for Giant. Foca testified Giant had
very defined specifications for their tomato in terms of sticker place-
ment, 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.
worked out all of the plans. Foca stated he told Zeleznik Clark
is on vacation in 2 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 ac-
count on October 14, but at that point they had not decided to
eliminate Sagastume’s position. Foca testified they were dis-
cussing 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. Zeleznik 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 de-
partment 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 cus-
tomer 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 ser-
vice team answering the phones and learning the more complex
systems. However, the nine ECFC administrators were well

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 testi-
fied, 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.
1305
COASTAL SUNBELT PRODUCE

suited to take over Sagastume’s spreadsheet. He testified 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 depart-
ment, and they could do that job while they were completing
the spreadsheet in the tomato department. Foca testified it was
his decision to eliminate Sagastume’s position. Foca used in-
formation provided by Clark and Zeleznik in making that deci-
sion. 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 eventu-
ally 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 email on the evening of November 17 summa-
rizing the department changes to take place the morning of
November 18, including the elimination of Sagastume’s posi-
tion. Foca testified that he did not discuss the matter with
Corso before he sent the email 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 Sa-
gastume’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 sever-
ance 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 workload. Foca testified
they could. Foca testified Hernandez’ union activities played
no role in the decision.
Foca testified several weeks prior to the November 18 de-
partment transfer, Zeleznik started talking to Ramos and “start-
ed 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 looking at doing. Foca testified prior to November 5,
Zeleznik would have had conversations with Ramos. Foca
testified, “[T]hat was the transition of bringing Julio in the
loop.” When the questioning resumed by Respondent’s coun-
sel, Foca, as if hedging his bets as a witness, testified, “I do not
know that for sure.” Foca testified, “That’s what I would ex-
pect 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 assumed Zeleznik would have talked to Ra-
mos 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 imple-
ment the decision as opposed to implementing it on Monday,
November 15 would have been just the operation of the busi-
ness not getting to it the first thing on Monday.
Foca testified he returned to his office at Respondent’s facili-
ty 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 imple-
mented 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 con-
duct or performance, they just decided to excess her position.
Foca testified he had finalized the decision to terminate Sa-
gastume 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. Ra-
mos, the manager of the tomato department, now reported to
Zeleznik. However, Foca testified the employees and supervi-

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 an hour on their production line or the tomato line.
However, Sagastume was making $21.67 and the company had a phi-
losophy against offering someone a lesser paying job. Foca testified
they make only lateral moves or promotions.
1306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

sors in the tomato department, following the November 18
transfer, were still on CSPC’s payroll although they are report-
ing 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 start-
ed on November 18.
Foca testified Sagastume’s job before her position was eli-
inated was costing the spreadsheet. This means when the prod-
uct 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 testi-
fied if there are tomatoes thrown away, the cost would be added
into the finished product, which is called the yield. Then there
would be some 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 fol-
lowing 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 spread-
sheet that had been used by Sagastume. However, Foca testi-
fied 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 op-
eration. 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 stream-
lined the process.60 Foca testified the Excel cost sheet Sa-

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 de-
partment desk. Foca testified the person may not have verified invento-
ry 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 Sa-
gastume could not do job as it currently exists in the tomato depart-
gastume 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 adminis-
trative work, as does repack. Foca testified ECFC software has
never been used in the tomato department, and Ramos, Per-
domo, 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, Per-
domo, 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 ad-
min team. Foca testified no one has to take a call from a cus-
tomer 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
Foca testified he spoke to Ramos about the Giant tomatoes
extensively in July, August, September, October, and Novem-
ber 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 roll-
ing 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 effi-
ciencies, increased productivity, and for possibilities of expan-
sion.
Zeleznik initially testified he was first involved in discus-
sions of the transfer of the tomato department to ECFC around

ment. 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 depart-
ment 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 per-
sonnel at the time of the department transfer. Rather, they were con-
verted to salaried personnel at the time of their annual review effective
February 1, 2011.
1307
COASTAL SUNBELT PRODUCE

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 de-
partment. Zeleznik testified it was also discussed that they had
business coming from Giant Foods which was a repack of to-
matoes to be packed in the right size and colors in display ready
boxes and this was going to be a significant volume of busi-
ness. Zeleznik testified the amount of Giant business coming to
the tomato department was the major reason it was being con-
sidered 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. Zeleznik testified as
the project manager, Clark saw opportunities for better effi-
ciencies 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 opera-
tion. Zeleznik also began reviewing sales and profit and loss
numbers. Zeleznik testified he was hoping to see improve-
ments, labor cost reductions, and to open up additional capaci-
ties. Zeleznik identified Foca’s November 17 email stating the
tomato department was officially coming to ECFC under
Zeleznik’s management. The announcement included the pro-
motion of three team members to line lead positions similar to
the ECFC value stream leaders in place (repack, tomato repack,
and tomato sort), and the elimination of the repack administra-
tion 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

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 ran-
dom conversations prior to September. Zeleznik testified he thought he
remembered these conversations starting in July.
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
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 spread-
sheet 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 de-
partment.
Zeleznik testified when Sagastume’s position was eliminated
he thought ECFC administration could absorb all of the ac-
counting 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 Sa-
gastume’s position, although Zeleznik concurred based on ob-
servations of the work done there, and that ECFC admin de-
partment 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 input-
ting 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 descrip-
tion of Respondent’s plan concerning the elimination of Sa-
gastume’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 supervi-
sory 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 ab-
sences, by line, and things of that nature. The tomato depart-
ment is a 6 day a week operation, and Sagastume’s position
was the only one where Zeleznik could find redundancy, and

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.
1308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 make Sagastume a line worker as
she had a pay rate of $21 an hour, and line workers were aver-
aging $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, set-
ting forth his itinerary for the following week. It shows a lead-
ership committee meeting scheduled for Wednesday, Novem-
ber 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, and 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 mak-
ing 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.

64 Morgan’s November 2, memo states Nixon informed her that Nix-
on reported Vargas’ union activities to Justin Callas.
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?
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 possi-
ble. 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 2 weeks. Zeleznik testified their pay periods
start on a Tuesday. Zeleznik testified, “[S]o 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 testi-
fied 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 re-
call.” Zeleznik repeated he did not know why the transfer hap-
pened 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 toma-
to department in earnest in early November, as “I knew I was
going to be running it, full front.” He testified he started run-
ning 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 infor-
mation on his day to day operations to Zeleznik. Aside from
1309
COASTAL SUNBELT PRODUCE

payroll, Zeleznik testified he began managing the tomato de-
partment 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 de-
partment to do some administrative duties. Zeleznik testified
Cruz worked there for a few weeks at least. He testified Ra-
mos, 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 complet-
ed. 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 administra-
tive work needs to be in the tomato department for portions of
the work. He testified the reason it has fallen on the three man-
agers to complete is what do you do with that person with all
the down time. Zeleznik testified during downtime, 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 data-
base for ECFC inventories, which was part of her original job
as well. Zeleznik testified anything that needed to be shipped
or purchased 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 cur-
rently sits at the tomato department desk and does some of the
repack spreadsheet 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 7 or 8. 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 occa-
sional 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 infor-
mation 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 trans-
ferred 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 follow-
ing 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 super-
vised 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 esti-
mated 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.
Ramos testified Sagastume worked with Ramos on the toma-
to line for about 3 or 4 years. Ramos was her supervisor. Ra-
mos 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 com-
puter work took 3-1/2 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 8-1/2-hour day, so she worked 3-
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

65 Ramos was shown an email dated September 24 from Clark to
Ramos concerning the status of the Giant tomato program. Ramos at
first testified he never saw the email before. Ramos testified he can
read English, however, he had difficulty reading the email at the hear-
ing. Upon further questioning, Ramos maintained he did not know if
he saw it before, and could not authenticate the document.
1310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 testi-
fied 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 spreadsheet 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 spreadsheet work Sa-
gastume 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 prod-
uct 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. How-
ever, Ramos testified Sagastume had all of the codes memo-
rized.
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 3 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 testi-
fied 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 to-
mato 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 Ramos’ 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 spreadsheet when Cruz is not there. Ramos testified
the job is very easy. Ramos testified he was teaching the line
leaders to do the repack spreadsheet, 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 spreadsheet when Cruz is not there. Ramos
testified Perdomo also does the spreadsheet sometimes. Ramos
rarely does it. Ramos testified it currently takes five people to
do the spreadsheet job because it is easy, if it were difficult no
one would want to do it. Ramos testified the spreadsheet re-
quires 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 spreadsheet 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 testi-
fied he had conversations with Foca after Sagastume left. Ra-
mos 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 testi-
fied 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 testi-
fied 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 up-
stairs. 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 contend-
ing it related to issues beyond matters set forth in the com-
plaint. As a result of this dispute, at the outset of the hearing I
entered into evidence the following analysis in Administrative
Law Judge’s Exhibit 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. Howev-
er, 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 indi-
cating that the employer values union free working condi-
tions are indicative of union animus); and Tejas Electrical
1311
COASTAL SUNBELT PRODUCE

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 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 employ-
er’s subsequent acts); J.P. Stevens v. NLRB 461 F.2d 490
(4th Cir. 1972) (finding antiunion 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 wheth-
er otherwise lawful conduct can be used as background evi-
dence of an unfair labor practice. In Wal-Mart Stores, 352
NLRB 815 fn. 5 (2008), also cited by Respondent the Board
found an 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 antiunion 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 pro-
duction 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 com-
plaint, and I informed counsel that I would not make any af-
firmative findings of unfair labor practices for matters not af-
firmatively 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 conten-
tion 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

66 Counsel for the Acting General Counsel’s statement at the time
was in the context of a discussion that included evidence that Hernan-
dez 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 10(b) time-
liness 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 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
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 affirma-
tive finding for matters specifically set for in the complaint,
maintaining that matters not alleged were time barred by Sec-
tion 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 relat-
ing to those arguments. Thus, I have considered conduct unal-
leged in the complaint as evidence of animus on the part of
Respondent to the employees’ 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 Administrative Law Judge’s Exhibit 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 evi-
dence, 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 sup-

posthearing brief, and I adhere to my decision at the hearing denying
the motion to amend the complaint.
67 In view of the counsel for the Acting General Counsel’s position
at the hearing that conduct not alleged is timebarred by Sec. 10(b) of
the Act; and/or her failure to make a timely motion to amend the com-
plaint 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 super-
visor’s relatives. See Advertiser’s Mfg. Co., 280 NLRB 1185 (1986),
enfd. 823 F.2d 1086 (7th Cir. 1987); and Brookside Industries, 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 nonsupervisory family members were found to be unlawfully dis-
criminated 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 prehearing position statement citing Tasty
Baking Co., 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, p. 6). In Tasty
1312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

port 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 ac-
tivity 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 fol-
lowing: Active Transportation, 296 NLRB 431, 431–432
(1989), enfd. 924 F.2d 1057 (6th Cir. 1991) (knowledge in-
ferred 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 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 & 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 tim-
ing, general knowledge of union activity and pretext, supported
finding of employer knowledge); Darbar Indian Restaurant,
288 NLRB 545 (1988) (finding of knowledge based on em-
ployer’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.”

Baking Co., supra, a Wright Line analysis was used by the Board to
conclude that an employer demoted a supervisor to employee status in
violation of Sec. 8(a)(1) of the Act; and then transferred that same
individual, now an employee, to the night shift in violation of Sec.
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 (3d Cir. 1990).
3. The present case
In the current case, Hernandez and Sagastume were long-
term employees at Respondent’s facility. Hernandez and Sa-
gastume 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 pur-
chased that operation in 2007. They retained their L & M sen-
iority 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 com-
pany 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 em-
ployee in the tomato department in the fall of 2010. The toma-
to department was part of CSPC while Sagastume was em-
ployed there. There were around 40 employees in that depart-
ment, and they all reported to Ramos, the department supervi-
sor.
In the summer of 2010, Hernandez had a conversation with
coworkers at a soccer game involving employees of CSPC and
ECFC where they discussed the possibility of a strike and form-
ing a union. Hernandez’ credited testimony reveals the Satur-
day 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 dissatisfaction
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 Sep-
tember, Hernandez, with one of his coworkers, 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 Respond-
ent’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 Sep-
tember 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 email 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 email was clearly written with code words convey-
ing that McWhorter felt Corso understood what he was talking
about, and that it was in reference to the union campaign, which
1313
COASTAL SUNBELT PRODUCE

by that time was over a month old amongst the drivers at Re-
spondent’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 re-
ceived the email.
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 poli-
cy 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 infor-
mation 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 Re-
spondent.
On October 13, Gibson sent a certified letter to Corso re-
questing 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 meet-
ings. 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 some-
thing 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 said it was an in-
volved 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 Re-
spondent’s board of directors located in Atlanta. Foca attended
this meeting, and was copied an email sent to the board of di-
rectors that day prior to the meeting. An attachment to the
email 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 recogni-
tion, about being careful of the Union’s promises versus guar-
antees, 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 (antiunion) workers at
Respondent willing to speak out against unions. It stated many
business actions were taken in that they now required partner-
ship approval of all terminations, suspended bonus deductions,
made vacation commitment for 2 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 organ-
izing a union. Corso testified he discussed at the October 27
board meeting, attended by Foca, that Corso did not feel a un-
ion 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 for-
mal. 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

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 employ-
ees. While not alleged in the complaint, these statements constitute
evidence of animus as they restrain employees in their exercise of their
Sec. 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, 278 NLRB 160, 164 (1986).
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

authorized the use of increased off duty police presence at the
facility to provide 24-hour coverage. Foca testified he partici-
pated in the decision to increase police coverage. Corso testi-
fied the decision was carried out by the human resources de-
partment.
On October 30, Hernandez attended a union meeting at a res-
taurant around 3 miles from Respondent’s facility. Around 30
to 40 employees attended. Hernandez was on the Union’s or-
ganizing committee, and he helped inform employees the meet-
ing was going to take place. On October 30, Stalio Callas,
CSPC’s general manager of operations, sent Corso an email
detailing drivers’ conversations at the work place in opposition
to the Union on that date. At that time, Callas had responsibil-
ity 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 meet-
ing 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 in-
formed Hernandez that a driver named Nixon was saying bad
things about Hernandez, Vargas, and Hernandez’ wife. Her-
nandez told Corso that Nixon had been referring to them in
vulgar terms and accusing them of bringing the Union to Re-
spondent. 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 pe-
culiar 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 con-
cerning Nixon’s making vulgar remarks about her at the work
place. She told Corso that Nixon was accusing Hernandez of

70 In fact, Corso testified he had fostered antiunion drivers to speak
out against the Union, during meetings Corso had held with them.
being a union organizer. Sagastume credibly testified Corso
said he understood and would speak to Nixon.71
Following their meeting, Corso took Hernandez and Vargas
to human resources on November 2, where they met with Mor-
gan 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 driv-
ers, 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. Her-
nandez said if Nixon had proof he was trying to bring the Un-
ion 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 ex-
cuse 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 No-
vember 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

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 sup-
ported 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 facil-
ity. In fact, the Board has acknowledged this in its standards for deter-
mining whether an interrogation is coercive, by taken into consideration
the truthfulness of the employee’s response by finding when an em-
ployee misrepresents their prounion status to the interrogator that tends
to signify the coercive nature of the interrogation. See Medcare Associ-
ates, 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, concern-
ing the meeting, testified if he was in Hernandez shoes he would have
come forward to deny his union involvement. The very fact that Her-
nandez would be placed in a position to have to deny his prounion
status to management in terms of his job security signifies Respondent
had created a coercive atmosphere for union supporters at their work
place.
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 organiz-
ers.
1315
COASTAL SUNBELT PRODUCE

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’ opin-
ions about having a union. Nixon informed Morgan, as per her
notes, that he could continue to work with Hernandez and Var-
gas peacefully while the investigation was being conducted.
On November 4, consultants RBA sent Corso a proposal un-
der 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 suffi-
cient 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
email 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 re-
vealed he received a $25 bonus for attending each of four of
these meetings, which took place on November 18, December
2, 7, and 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 meet-
ings. In one of the meetings, McWhorter was present. Vargas
testified about attending a meeting in Respondent’s small meet-
ing 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

73 The conducting of one-on-one meetings with voters is a tactic
clearly designed to garner voter leanings in the upcoming election.
drivers could be terminated permanently and replaced by an-
other 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 re-
placed.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, No-
vember 7, CSPC Fleet Manager Joey Saia, an admitted supervi-
sor, 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. Hernan-
dez 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. Her-
nandez 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 Her-
nandez 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 re-
spect, 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.

74 Corso threatened to provoke a strike by his stated refusal to nego-
tiate with the Union if they won the election. The Board has labeled
the threat of a refusal to negotiate as a serious violation of Sec. 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 Sec.
8(a)(1) of the Act. See Capitol Steel and Iron Co. v. NLRB, 89 F.3d
692, 698 (10th Cir. 1996); WestPac Electric, 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.
1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Hernandez said he wanted to protect his job. Saia said please
talk to the guys and try and stop the Union. Hernandez said,
“[W]ell, Joey, let me try to talk to them, . . . .”
I find that Saia’s November 7 questioning of Hernandez con-
stituted 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 Hernan-
dez 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 ad-
mitting 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 ex-
plained 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 Her-
nandez grievances with a new job if he talked to Corso and
changed his prounion stance. Hernandez refused Saia’s en-
treaties 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 em-
ployee constitutes an unlawful interrogation, the Board exam-
ines 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 em-
ployee is an open union supporter, the employer’s background
(whether there is a history of employer hostility and discrimina-
tion), the nature of the information sought (whether the interro-
gator appeared to be seeking information on which to base
action against individual employees), the identity of the ques-
tioner 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
(2000). The Board will determine whether under all the cir-
cumstances the questioning at issue would reasonably tend to

75 The questioning of Hernandez by Saia was not alleged in the com-
plaint as conduct violative of Sec. 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 concern-
ing 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 organ-
izing 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.
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 coer-
cive 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 termi-
nation, 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

77 Respondent argues in its posthearing 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 specif-
ically 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 antitrust 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 appli-
cable 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.
1317
COASTAL SUNBELT PRODUCE

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. 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 email Corso asked Moore, “Did we ever follow up on
complaints Nixon, Javier, Luis and Myra lodged?” Moore
responded by email 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 re-
sponded, “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 man-
ner. 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 email exchange is
revealing on two fronts, first Respondent’s supervisors contin-
ued 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 email 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 conversa-
tion. 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 Ra-
mos’ checks to level the paychecks of all the others. Sa-
gastume 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 Sa-
gastume should talk to her friends because Corso told Ramos
he prefers to shut down the company rather than allow the Un-
ion 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 Sa-
gastume 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. Ra-
mos said Hernandez should talk to them because so many
things have changed, for instance with the drivers. For exam-
ple, they did not like the supervisor, and they changed the su-
pervisor. 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 prob-
lem 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. Sa-
gastume testified the conversation was around 20 to 30
minutes.79
I find that Ramos engaged in a coercive interrogation of Sa-
gastume concerning her and her husband’s union activities in
violation of Section 8(a)(1) of the Act on November 17. Ra-
mos 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 cam-
paign. 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, Ra-
mos pulled Sagastume off her job, and then questioned Sa-
gastume 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 cre-
ated 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

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.
1318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

and tell them to repent for what he has done. Absent Hernan-
dez 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 Hernan-
dez 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 to-
morrow.
On Wednesday, November 17 at 8:32 p.m. Foca sent an
email 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 email, 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 implementa-
tion of the tomato line transfer took place on November 18.
Sagastume 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 hu-
man 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

80 The threat of plant closure, creation of impression of surveillance,
and threat of unspecified retaliation were not alleged as separate viola-
tions of the Act in the complaint and therefore I make no affirmative
findings of a violation of the Act with respect to those actions. Howev-
er, they serve as evidence of animus and as a backdrop as to the coer-
cive nature of Ramos’ questioning of Sagastume. See Carroll & Car-
roll, Inc., 340 NLRB 1328, 1332 (2003).
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 doc-
ument, 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 coworker 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 Sa-
gastume and CSPC.
Morgan sent an email 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 build-
ing 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 email was “ter-
mination of employment” and it was labeled high importance.
The Union lost the December 17 election. The tally of bal-
lots 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 email celebrating the election results. The email
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”.

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 ac-
tivities. 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

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.
1319
COASTAL SUNBELT PRODUCE

(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 ex-
pense to conduct a campaign designed to undermine the Un-
ion’s support. The Union filed its petition for election on Oc-
tober 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 “[w]e 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 coer-
cively 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 Sa-
gastume, 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 Her-
nandez to talk to Corso and the other managers and tell them he
repents for what he has done. Sagastume refused Ramos di-
rective 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 to-
wards 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 concern-
ing Hernandez union activities, and she was told to have Her-
nandez meet with and apologize to Corso for his actions regard-
ing 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 re-
turn 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 con-
cerning the 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 Sa-
gastume’s termination following its occurrence, is sufficient to
create a prima facie case that Sagastume’s discharge was un-
lawful. 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 email reports
from several supervisors updating him as to employees’ union
activities. These include: a report from McWhorter, vice presi-
dent of sales, on October 6; a report from Callas, general man-
ager-operations on October 30; a report by Moore, vice presi-
dent of operations on November 16; and Caplinger, transporta-
tion manager/logistics manager, on December 11. Thus, four
high-level supervisors issued written reports to Corso pertain-
ing to the employees union activities at the facility indicating
that Corso was keeping those activities under surveillance
through supervisory reports being funneled to Corso. Moreo-
ver, 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 cred-
ited evidence reveals that Saia, on November 7, accused Her-
nandez 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 inter-
rogations and the repeated nature of the request reveals that
Corso was the source behind the questioning.
Caplinger’s December 11 email 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 Respond-
ent’s numbers for its subpoena production at the lower right
hand side of the document. The email 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
1320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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 state-
ments 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 conclud-
ed, that despite their claims to the contrary, Foca and Corso
were apprised of by one or all of these individuals of Hernan-
dez leadership role in the union prior to Sagastume’s termina-
tion. 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).
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 antiunion stance,
by his own admission and by emails 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 cam-
paign. Corso notified Foca of the Union’s demand for recogni-
tion, 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 Re-
spondent’s campaign strategy. In fact, Foca was copied
Corso’s email 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 di-
rected 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 con-
sulted 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 deter-
mined to terminate Sagastume prior to November 2, and alt-
hough 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 No-
vember 17 when he sent the email to Corso notifying him that
the decision had already been made. The November 17 email
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 imple-
mentation terminate a long time employee, who had been the
subject of a meeting he attended with Corso concerning accusa-
tions 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 litiga-
tion strategy in an unsuccessful effort to attempt to shield
Corso’s avowed antagonism towards the Union from the deci-
sion 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 dis-
charge 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 con-
cerning Sagastume’s termination is pretextual. In the first in-
stance, 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
Sagastume was terminated.
Concerning Sagastume’s termination there was no claim that
she was not performing her work properly. In fact, Foca testi-
fied Sagastume’s performance was not an issue, and Ramos
testified she was a trusted employee. While Foca and Zeleznik
maintained there was an extensive study of Sagastume’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, Sagastume’s principle function involved
inputting information into Respondent’s Excel computer pro-
gram regarding the repack line, which had nothing to do with
Giant’s tomato order. Rather, repack involved breaking pro-
duce products, other than tomatoes, into smaller packages for
customers such as restaurants. Sagastume 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

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. Sa-
gastume 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
1321
COASTAL SUNBELT PRODUCE

Foca testified that it was his decision to eliminate Sa-
gastume’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 easi-
ly absorb what looked like 15 to 20 hours a week of administra-
tive 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 spreadsheet.
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 trans-
ferred downstairs to the tomato department for the ECFC ad-
ministrative 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 fol-
lowing Sagastume’s termination an employee from the ECFC
admin department came and sat at Sagastume’s desk and per-
formed Sagastume’s repack administrative work using the Ex-
cel spreadsheet used by Sagastume, and that the ECFC employ-
ee 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 Sa-
gastume’s administrative work was thereafter completely done
by the department supervisors, Ramos, Perdomo, or A. Her-
nandez. 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 pro-
cesses of the tomato line, including Sagastume’s position since
July, Zeleznik testified the elimination of Sagastume’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 testified it
was probably a couple of hours a day job.83 Zeleznik testified

week in the repack department, mainly from 8 to 9 a.m. when she
packed produce, or made boxes for packing produce. While Respond-
ent 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 overtime.
83 Zeleznik testified he obtained the estimate of Sagastume’s hours
on administrative work, not from Clark, but from Ramos. This asser-
tion is not credible because Ramos testified on busy days Sagastume
spent 3-1/2 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 administra-
tive 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.
he thought the ECFC administration could absorb all of the
accounting, purchase orders, sales orders, and inventory ad-
justments 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 Sa-
gastume’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 pre-
textual 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 de-
partment, he admitted he did not even know for sure if Sa-
gastume had done that work. Sagastume also credibly testified
that Perdomo was out on sick leave at the time of her termina-
tion 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 perform-
ing 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 Sa-
gastume’s administrative department functions. Zeleznik testi-
fied the nature of the tomato department administrative work,
which ebbs and flows during the course of the day required the
individual performing the Excel spreadsheet work to be in sta-
tioned 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 per-
formed by an ECFC administrative employee splitting time
between the ECFC admin office and the outdoor tomato de-
partment. Finally, Sagastume 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 Sa-
gastume’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
1322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

was no evidence that anyone was taking any customer calls
from the tomato department. Rather, the evidence revealed the
work continued 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 adminis-
trative 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 spreadsheets 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 deci-
sion 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 state-
ment that:

Charging Party worked for Coastal Sunbelt as Repacking
Administrator for the tomato/repacking lines. As an adminis-
trator, Charging Party inputted all tomato products received
by the company into accounting software. She also used Mi-
crosoft Excel spreadsheets to compute the cost of the items
that were received, and the costs based on repacking the
products. [GC Exh. 30 p. 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 state-
ment that:
The overwhelming majority of Charging Party’s job duties
were spent in front of a computer working on various soft-
ware and cost analysis. A small percentage of Charging Par-
ty’s job duties involved working on the tomato/repacking
lines. [GC Exh. 30 p. 7.]

84 Sagastume’s supervisor Ramos testified that on busy days Sa-
gastume’s computer work took 3-1/2 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.
However, at the hearing Respondent’s officials in particular
Foca and Zeleznik sought to minimize the amount of time Sa-
gastume spent on the computer, in an effort to assert her posi-
tion was easy to replace by others at the time of her termina-
tion. Finally it was stated in Respondent’s February 15, 2011
position statement that:

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 re-
quired 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 opera-
tions 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 ser-
vices under one company also made good sense from an effi-
ciency and economies of scale perspective because it allows
the employer to interchange employees based on which lines
are slow or busy. [GC Exh. 30, p. 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 promo-
tion 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 to-
mato department employees, and as Sagastume credibly testi-
fied 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 oper-
ations. 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 posi-
tion 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 238, 239–240 (2010)
(citing City Stationery, Inc., 340 NLRB 523, 524 (2003) (non-
discriminatory 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
1323
COASTAL SUNBELT PRODUCE

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, No-
vember 18. Sagastume’s testimony revealed she had been co-
ercively interrogated by Ramos at around 3:30 to 4 p.m. on
November 17, and that she saw Ramos returning from Re-
spondent’s offices around 6 p.m. after he was away for a sub-
stantial 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 No-
vember 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 ac-
tions to take place on Tuesday. Zeleznik offered no good rea-
son as to why they took place on Thursday, and none was pro-
vided by Respondent lending to the ultimate conclusion that
Foca’s late night November 17 email related directly to Ramos
unlawful interrogation of Sagastume on the Wednesday after-
noon 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 depart-
ment 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 trans-
fer 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. Sagastume 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 con-
sult Ramos, her immediate supervisor about her termination as
Respondent was approaching Thanksgiving a busy time, evi-
dences 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 immedi-
ate 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 ter-
mination was unlawfully motivated.86 Since I have concluded
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 viola-
tion of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Coastal Sunbelt Produce, Inc., otherwise known as Coastal
Sunbelt Produce Company (Respondent) is an employer en-
gaged 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 In-
ternational 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 Respond-
ent has discriminated against Sagastume in order to discourage
its employees participation and or membership in a labor organ-
ization in violation of Section 8(a)(3) and (1) of the Act.

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 Sagastume 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, sagastume 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 soft-
ware applications, a function Ramos testified he was unsuccessful in
getting all the newly appointed lead personnel to perform. Sagastume
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 adminis-
trative 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 dis-
charge. Following the transfer, the department remained in place,
remained on CSPC books and payroll, employees retained their seniori-
ty and Ramos largely ran the department with little input from higher
management before and after the purported transfer. However, regard-
less of whether the department transfer is considered to be a legitimate
transaction, I find Sagastume’s discharge to be unlawfully motivated
for the reasons stated.
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

5. Respondent’s unfair labor practices affect commerce with-
in the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found Respondent has engaged in certain unfair la-
bor 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 dis-
charged employee Mayra L. Sagastume must offer her rein-
statement and make her whole for any loss of earnings and
other benefits from November 18, 2011, the date of Sa-
gastume’s discharge to the date of a proper offer of reinstate-
ment, less any net interim earnings. Backpay shall be comput-
ed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010).
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
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 Interna-
tional Brotherhood of Teamsters or any other labor organiza-
tion.
(b) Discharging employees because they engage in union ac-
tivities, or because of the union activities of their family mem-
bers and to discourage employees from engaging in union ac-
tivities.
(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 necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer employ-
ee Mayra L. Sagastume full reinstatement to her former posi-
tion 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.

87 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 fa-
cility in Savage, Maryland location copies of the attached no-
tice marked “Appendix.”88 Copies of the notice, on forms pro-
vided 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 intra-
net or an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees by
such means.89 Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of busi-
ness or closed its operations at Savage, Maryland, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since November 17,
2010.
(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.
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 no-
tice.

88 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
89 I find Respondent’s notice posting location requirements and
email 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 em-
ployees. 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 antiunion campaign, spoke to
his employees about it, and participated in the decision to discharge
Sagastume.
1325
COASTAL SUNBELT PRODUCE

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

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 or-
ganization.
WE WILL NOT discharge employees because they engage in
union activities, or because of the union activities of their fami-
ly members and to discourage employees from engaging in
union activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed 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.