Cream of the Crop

National Labor Relations Board - Board Decisions

Dec 14, 1990

300 N.L.R.B. 914 (N.L.R.B. 1990)

914
300 NLRB No. 126
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 Member Oviatt notes that President Watts admitted that he told the em-
ployees at the May 30, 1989 meeting, following an employee’s inquiry why
there had been no fall crop in 1988, that the carrot grower was hesitant to
plant because he knew the Respondent was having union problems.
Charles G. Watts, Inc. d/b/a Cream of the Crop
and Fresh Fruit & Vegetable Workers, Local
78-B, United Food & Commercial Workers
International Union, AFL–CIO, CLC. Cases
32–CA–10503 and 32–RC–2758
December 14, 1990
DECISION, ORDER, AND DIRECTION OF
THIRD ELECTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On January 31, 1990, Administrative Law Judge
David G. Heilbrun issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings1 and con-
clusions,2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Charles G. Watts, Inc.
d/b/a Cream of the Crop, Huron, California, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order.
[Direction of Third Election omitted from publica-
tion.]
Ariel L. Sotolongo, Esq., for the General Counsel.
Terrence R. O’Connor, Esq. (Dressler & Quesenbery), of Sa-
linas, California, for the Respondent.
Fritz Conle, of Salinas, California, for the Union.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. These
consolidated cases were tried at Fresno, California, Novem-
ber 16, 1989. The charge in Case 32–CA–10503 was filed
by Fresh Fruit & Vegetable Workers, Local 78-B, United
Food & Commercial Workers International Union, AFL–
CIO, CLC (the Union or Petitioner), on August 3, 1989, and
the complaint was issued August 28, 1989, with an order
consolidating cases and requested reference of the associated
representation proceeding, Case 32–RC–2758, to the Board.
The primary issue in the complaint case is whether Charles
G. Watts, Inc. d/b/a Cream of the Crop (Respondent), as the
Employer and by his agents, verbally interfered with, re-
strained, and coerced employees in the exercise of rights
guaranteed them in Section 7 of the Act.
In the representation case, a petition was filed by the
Union on June 30, 1988, and an election pursuant to Stipu-
lated Election Agreement was conducted August 12, 1988.
Of approximately 114 eligible voters, 35 votes were cast for
Petitioner and 58 were cast against. The 13 challenged bal-
lots resulting from this election were not sufficient in number
to affect its results. Petitioner then filed timely objections, in
the course of investigation of which the parties entered into
a Stipulation on Objections approved by the Regional Direc-
tor on November 7, 1988. This Stipulation on Objections (1)
recited that the timely objections under consideration raised
substantial and material issues with respect to the election,
(2) declared the election a nullity with its results to be set
aside, and (3) established mid-1989 as the time that a new
election be conducted.
Ultimately this new election was conducted July 17, 1989,
and of approximately 110 eligible voters, 36 votes were cast
for Petitioner and 67 were cast against. The two challenged
ballots resulting from this rerun election were not sufficient
in number to affect its results. Petitioner again filed timely
objections, upon which the Regional Director issued a Report
and Recommendation on Objections dated August 28, 1989,
in which the order for consolidation of the CA and RC cases
for purposes of hearing was contained. The Regional Direc-
tor’s report and recommendation concluded that Petitioner’s
evidence in support of its objections raised substantial and
material issues of fact with respect to certain of the objec-
tions, which could best be resolved through hearing. The par-
ticular objections so viewed were those set forth below as
originally numbered:
1. On or about May 30, 1989, owner Charlie Watts,
before a meeting of employees, implied that employees
would lose work opportunities in the event of a union
election win, by stating that in the previous year the
growers had not planted carrots in the fall because of
the union.
2. On or about May 30, 1989, employer agent Rosa
Gonzales, before a meeting of employees, threatened
that employees would lose work opportunities in the
event of a union election win, by stating that in the pre-
vious year the growers had not planted carrots in the
fall because of the union, and that this year it would
depend on what happened with the union.
3. On or about July 11, 1989, employer agent Rosa
Gonzales, before a meeting of employees, threatened
the employees would lose work opportunities in the
event of a union election win, by stating that in the pre-
vious year the growers had not planted carrots in the
fall because of the union, and that this year there there
[sic] would be no work in November if the union won
the election.
6. On or about July 13, 14, and 15, 1989, employer
agents interrogated employees by distributing buttons
marked ‘‘No’’ and asking employees if they would
wear them.
915CREAM OF THE CROP
1 All dates and named months hereafter are in 1989, unless indicated other-
wise.
2 At the conclusion of its independent presentation, Petitioner moved for dis-
missal of its Objection 6, and the motion was granted. This procedural change
harmonized with earlier action in which General Counsel’s motion to withdraw
par. 6(b) as originally contained in the complaint was granted.
7. On or about July 11, 1989, employer agent Rosa
Gonzalez interrogated an employee by, in the presence
of owner Charlie Watts and other employer supervisors,
questioning the employee regarding her attendance of
union meetings and other protected, concerted activities.
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of briefs filed
by General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation with an office
and place of business in Huron, California, is engaged in the
packing, shipping, and nonretail sale of carrots, annually in
the course and conduct of such business operations selling
and shipping goods or providing services valued in excess of
$50,000 directly to customers located outside the State of
California. On these admitted facts I find that Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and as further admitted that
the Union, as Charging Party in Case 32–CA–10503 and as
Petitioner in Case 32–RC–2758, is a labor organization with-
in the meaning of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
Respondent seasonally operates a packing shed to handle
the carrot crops of those growers with whom it contracts. In
1988 only a single summer crop was processed at the pack-
ing shed, and the basic production and maintenance unit of
more than 100 employees, comprising packers, palletizers,
forklift operators, loaders, and general laborers, experienced
layoff until late spring 1989.
Full seasonal operations for 1989 began around May 30,
1989, and for the occasion Charlie Watts, an owner of Re-
spondent, spoke to all assembled employees at the premises.1
The native language of most employees is Spanish, which
Watts does not speak. He believed at the time from prior
sentiments expressed by the main work force that a ‘‘con-
sensus’’ existed for packer Rosa Gonzales to be a ‘‘shop
steward’’-type spokesperson for group or individual com-
plaints arising at the workplace. As with many of the em-
ployees, Gonzales had worked the prior summer, but she in
particular was bilingual in Spanish and English. Watts made
known that he wanted Gonzales to serve as his translator, in
fulfillment of his intention to extend welcoming greetings to
the employees for the new season, state the wages he would
be paying, and propose an hourly rate augmentation in ex-
change for discontinuance of group insurance benefits. The
meeting lasted approximately 30 minutes, with the first 5
minutes devoted to Watts’ planned remarks and the remain-
ing 25 minutes devoted to the answering of general ques-
tions, via Gonzales, about work-related matters.
When the new election date of July 17 approached, Re-
spondent engaged Jose Agraz to be a labor consultant on its
behalf in advance of the rerun. In this connection a meeting
of all assembled employees was held at the packing shed on
approximately July 10. At this gathering Watts positioned
himself on a catwalk above the level where the employees
stood, while Agraz was on a lower level in front and
Gonzales was randomly situated among her coworkers, off to
one side but only about 25 feet from Watts. On this occasion
Watts’ remarks, and resultant question-answer exchanges,
were translated by Agraz, who is fluent in Spanish.
The issues present in this consolidated proceeding relate to
what was spoken at the two group meetings of May and
July, plus an alleged side remark during the July meeting
held with employees prior to the rerun election. In this sense
the alleged unfair labor practice conduct of Respondent con-
stitutes the same episodes as are the basis for those enumer-
ated objections found by the Regional Director to warrant
resolution in this consolidated proceeding.2 Further, and in
this context, Petitioner relied on General Counsel’s presen-
tation of evidence concerning allegations of the complaint in
support of its several remaining objections under consider-
ation.
General Counsel’s first witness was Rene Cardenas, a sort-
er employed during both past seasons. She testified that in
May Watts had introduced Gonzales as his ‘‘representative
and interpreter,’’ and from Cardenas’ limited fluency in
English coupled with her native fluency in Spanish she could
detect that Gonzales did not translate Watts’ statements with
exactness. Cardenas asserted that when Watts spoke of prob-
lems at the shed, Gonzales translated this into a Spanish
statement that problems at the Company were present be-
cause of the Union. She further testified that when Watts
stated, in English, how prospective growers had been ‘‘shy’’
about planting a winter carrot crop, Gonzales translated this
to say that a lack of a winter crop which would have per-
mitted a packing season in December 1988 occurred because
of the Union.
Ninfa Castaneda testified by a Spanish interpreter that she
was a packing shed worker who had been employed during
both past seasons. She recalled being present with all other
employees inside the shed on the first day of the 1989 season
where Watts spoke to the group by Gonzales interpreting his
remarks. Castaneda testified that Gonzales’ statements in
Spanish were that a carrot run had not been done the pre-
vious December because of union problems and that this
year things would all depend on the Union, because it was
still suing the Company. She further recalled Gonzales’ state-
ment that a new planting of carrots would all depend on the
Company winning an election.
Teresa Orozco testified by interpreter that she was a pack-
ing shed worker mostly assigned to sorting of carrots and
had worked both past seasons. She testified that Gonzales’
interpretation of Watts speaking in English was that if the
Union came in growers would not want to plant carrots,
which had been the reason no crop was available late the
previous year. She recalled Gonzales referring to a new elec-
tion to be scheduled during the working season about to
begin, and saying that a new ‘‘run’’ of carrots would all de-
pend on employees themselves should they vote for the
Union.
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Antonia Sandoval testified by interpreter that she was a
packing shed worker who had also been employed both of
the the past seasons. As present at the assembled meeting on
or about May 30 she understood Watts ‘‘appointed’’
Gonzales to be his representative for translation purposes.
Sandoval testified to Gonzales saying that no work had been
available the preceding December when carrot growers did
not plant because of the Company’s union problem, includ-
ing their being sued.
Sandoval also testified that during a small group meeting
of employees held by Watts with Gonzales translating, an
employee named Sara asked Gonzales how she should vote.
Gonzales claimed response to this, without translating the
question for Watts, was that Sara should consider what ad-
vantages the Union had described in any meeting with em-
ployees that Sandoval might have attended. Sandoval recalled
further that Gonzales appeared to demand of Sara some dis-
closure of whether Sara had ever talked with the Union,
however Sandoval could not affirm that Watts, who was al-
ways present, comprehended the episode.
For Respondent, Watts testified that his Company uses an
individual to find and contract with carrot growers to
produce the needed crop. Watts came to understand from this
individual, and general knowledge within agricultural circles
of the vicinity, that carrot growers were apprehensive about
contracting with a packer involved with what was viewed as
labor problems. For this reason the acreage necessary to a
suitable late 1988 winter crop of carrots could not be lined
up, except for one grower potentially willing to commit 300
acres for a winter crop. As summer 1988 progressed this
grower delayed the midsummer planting, but immediately
after the election hurriedly planted the full available acreage
in carrots. Watts testified that a late summer heatwave burnt
the young crop, and at that point the growing season was too
late for a replanting.
Watts asserted that it was this background which he at-
tempted to communicate during welcoming and informative
remarks made to assembled employees on the first day of the
1989 packing season. He testified that it was here he pro-
posed that Gonzales serve as his interpreter for the meeting,
and communicator of any general problems that might arise
during the season. He recalled questions from employees
about what he termed the ‘‘fall deal,’’ which he believed
Gonzales was explaining as he understood it. Also employees
had asked him what the consequence would be of the Union
winning a new election, and Watts testified that he said this
would make no difference in regard to the jobs of employees
or operations at the packing shed.
Watts testified about the preelection meeting held on or
about July 10 with Agraz present as Respondent’s labor con-
sultant. This preelection meeting began around 10 a.m. and
was a presentation to the entire assembled work force in
order to inform them of the company position concerning the
election about to occur. Watts recalled Gonzales standing off
to the side as he spoke and Agraz interpreted, however she
raised no questions nor did he observe her interpreting his
remarks voluntarily among coworkers. Watts testified that the
only statement about a late 1989 working season arose in the
same manner, and was answered in the same way, as had
been the case at the season’s opening meeting of May 30.
Watts denied that Gonzales had ever represented the Com-
pany in any official way, or performed out of the ordinary
except to be thought of as a potential communicator of em-
ployee complaints and the translator of Watts’ season open-
ing remarks because of her bilingual abilities.
Richard Pena was a bilingual witness called by Respond-
ent, testifying that he had worked the two past seasons as a
forklift driver in 1988 and a pallet stacker for the 1989 oper-
ations. He testified that while present at the assembled meet-
ing of employees on May 30 he had not heard Gonzales
make any statement about future employment at the Com-
pany depending on whether the Union won or lost the rerun
election to be held. Pena had sufficient fluency in English to
assert that Watts’ remarks at that meeting were confined to
welcoming, discussion of wages and an insurance trade off,
plus reference to carrot growers having delayed their season
in 1988. Pena was also at the preelection meeting of approxi-
mately July 10, and testified that on this occasion Gonzales
made no translation of her own concerning what Watts had
to say.
Esteven Ramirez was called as a witness by Respondent
and testified by interpreter that he had worked two seasons
at the packing shed. He recalled being present at the assem-
bled meeting of employees on May 30, and that remarks of
Watts as translated by Gonzales were to the effect that
should the Union win the rerun election to be conducted it
would not affect the entitlement of employees to keep on
working. Ramirez added his understanding that Gonzales was
identified by Watts as being an appropriate spokesperson
should employees have any questions or complaints to com-
municate to him during the working season. Ramirez recalled
a second meeting of employees, remembering mostly that a
man had done the translating for Watts.
Respondent’s final witness was Gonzales, who testified
that she has worked both past seasons primarily as a packer.
She recalled being asked on several occasions over these 2
years to be a translator for Watts in communicating with em-
ployees. Gonzales distinguished this service from being some
kind of company representative, which she asserted was
never made as an appointment. Her testimony did not touch
on the group meeting on May 30, and as to the preelection
meeting in July she testified merely that Agraz had done
translating for the many questions that arose. Her testimony
also did not touch on any episode at this time involving a
person named Sara.
B. Analysis
1. Introduction
This case turns on verbalisms alone, those made at the
meetings held during 1989 including a fair implication of
what was communicated to the respective employee group.
A critical question as to the first meeting necessarily be-
comes what Gonzales spoke in Spanish and not Watts’ words
in English, which have not been effectively testified to as
violative by any witness of General Counsel. Thus it is only
by meaning given in the Spanish language, and correctly
comprehended by listeners, that the allegations of threats and
interrogation may be resolved.
The related question is whether Gonzales became an agent
of Respondent by the mere fact of her designation. First ref-
erence here is to Section 2(13) of the Act, reading as fol-
lows:
917CREAM OF THE CROP
3 I deny the motion to amend complaint as made in General Counsel’s brief.
The theory advanced was not in any way suggested during hearing, and was
not a fully litigated matter as to permit introduction now.
In determining whether any person is acting as an
‘‘agent’’ of another person so as to make such other
person responsible for his acts, the question of whether
the specific acts performed were actually authorized or
subsequently ratified shall not be controlling.
2. Agency
Apparent authority is created through a manifestation by
the principal to third parties that supplies a reasonable basis
for the latter to believe that the principal has authorized the
alleged agent to do the acts in question. NLRB v. Donkin’s
Inn, Inc., 532 F.2d 138, 141 (9th Cir. 1976); Alliance Rubber
Co., 286 NLRB 645 fn. 4 (1987). Thus, either the principal
must intend to cause third persons to believe that the agent
is authorized to act for him, or the principal should realize
that this conduct is likely to create such belief. Restatement
2d, Agency Section 8. Two conditions, therefore, must be sat-
isfied before apparent authority is deemed created: (1) there
must be some manifestation by the principal to third parties,
and (2) the third parties must believe that the extent of the
authority granted to the agent encompasses the contemplated
activity.
In Waterbed World, 286 NLRB 425 (1987), the Board
wrote more directly that its test of agency status was wheth-
er, under all the circumstances, and citing Einhorn Enter-
prises, 279 NLRB 576 (1986), and Community Cash Stores,
238 NLRB 265 (1978), employees ‘‘would reasonably be-
lieve that the employee in question (alleged agent) was re-
flecting company policy and speaking and acting for manage-
ment.’’3
In contrast to facts of this case the Board has held there
was insufficient evidence to establish agency status when an
employer had only given permission for a person to meet on
company time and premises in order to undertake solicitation
activities. NAB Construction Corp., 258 NLRB 670, 672–673
(1981). However where an employer appropriately designates
an individual to interpret matters which concern terms and
conditions of employment to bilingual coworkers this is a
seemingly sufficient basis on which to find the statutory defi-
nition for an agent has been met. In Midessa Construction
Co., 290 NLRB 269 (1988), the employer respondent regu-
larly communicated with such of its employees who could
not converse in English by utilizing services of their bilin-
gual coworkers, and there was testimony that such was ‘‘the
standard method of communication.’’ From that the Board
adopted language to the effect that such a situation, ‘‘made
the employee-interpreter its [employer’s] agent for the pur-
pose of such communication.’’ While not as strong a fact sit-
uation here, the evidence shows not only that Respondent
called on Gonzales more than once for group translation pur-
poses, but also that she was identified as a person who was
available on a continuing basis for the transmission of em-
ployee complaints. I find from this on the authority of
Midessa that Gonzales acquired the status of Respondent’s
agent when she spoke with assembled employees on May 30.
To hold otherwise would permit an employer the luxury of
creating the setting for unlawful expression to employees,
while escaping any liability for what its appointee actually
conveys. It is, after all, a matter of mental comprehension
that determines the significance of verbalisms, and this com-
prehension arises from whatever formal language is actually
used. Accord: Ella Industries, 295 NLRB 976 (1989).
3. Credibility
I credit Cardenas as a witness whose testimony was suffi-
ciently candid-seeming, consistent, and based on alert recol-
lection of what was heard in two languages. To this extent
I am satisfied that Gonzales departed from the more innoc-
uous characterizations of Watts, and placed her own empha-
sis in course of the Spanish translation on May 30. In the
process she plainly enough conveyed to the assembled lis-
teners, most of whom had exclusive or principal comprehen-
sion faculties in Spanish, that their past and potential loss of
a second growing season hinged on their support for the
Union. In this process Gonzales made no known distinction
between what Respondent could influence respecting its po-
tential growers, and what was outside its control.
I cannot credit General Counsel witnesses Castaneda,
Orozco, or Sandoval. In each case they were confusedly hesi-
tant, uncertain of expression after allowing for the inter-
preting process, recantive, and admitting of poor memories
as to actual remarks.
I was unimpressed with Respondent witnesses Pena and
Ramirez, neither of whom displayed a settled inclination to
accurately recount what they had heard. In both cases these
witnesses were uncertain and shifting as to their testimony,
and on general demeanor grounds I discredit them.
4. Holding
The assembled meeting of employees of May 30 resulted
in a direct threat to them that presence of a petitioning union
at their workplace was detrimental to job prospects, and their
support for this prospective collective representation would
deprive them of winter season employment.
While chief authority figure Watts did not go beyond set-
ting the context and alluding to his problem(s) as an em-
ployer, he effectively commissioned Gonzales to interpret his
remarks and is bound by her version as given in a language
he does not understand. This is necessarily a consequence in
industries where a predominant non-English-speaking work
force is utilized. Gonzales’ words, as uttered in a fully au-
thoritative role, were directly coercive in violation of Section
8(a)(1). See Ebon Research Systems, 290 NLRB 751 (1988);
Palmas Del Mar Co., 277 NLRB 71, 81–82 (1985).
This holding does not extend to the second or preelection
meeting of assembled employees, for Cardenas, the only wit-
ness of General Counsel who I find credible, does not at-
tribute comparable remarks to Gonzales at this time, nor to
Agraz who admittedly translated freely on the occasion. As
to the incident of a ‘‘Sara’’ person, which again Gonzales
did not testify about, I find Sandoval’s uncontradicted testi-
mony does not establish anything more than innocuous
crosstalk between coworkers, which in this case is neither ac-
tionable nor attributable to Respondent.
It is significant that Gonzales did not deny what was at-
tributed to her. In General Teamsters Local 959, 248 NLRB
693 (1980), the Board held that ‘‘specificity of testimony is
certainly a legitimate factor that may be weighed in evaluat-
ing the relative strength and probability of conflicting ver-
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
5 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
6 In view of the number of Respondent’s employees who are Spanish-speak-
ing, the notice to be posted shall be in Spanish as well as English. See Sun
World, Inc., 271 NLRB 49 (1984).
sions of events.’’ Here I necessarily draw an inference ad-
verse to Respondent from the prominent fact that Gonzales
was not asked her own summary version of what the several
witnesses had described with such difficulty. Once a single
witness arguably described the coercive impact of Gonzales’
translation in Spanish, it would have been most natural to
make an attempt were the ability present to draw out her de-
nial. Accord: Lemon Drop Inn, 269 NLRB 1007, 1011
(1984).
Respondent argues that remarks at issue were not unlawful
because made in ‘‘honest response to a direct question’’
coming from employees. The contention is associated to
holdings in Jeffco Mfg. Co., 211 NLRB 787 (1974) and Con-
tinental Kitchen Corp., 246 NLRB 611 (1979). I do not be-
lieve Jeffco supports Respondent’s argument. It was a unique
fact situation based on a structured ‘‘Speak Up’’ invitation
to employees for written ‘‘complaints, comments, and ques-
tions to management.’’ As to Continental Kitchen, the case
opinion essentially does not support the point for which
cited; that of merely replying, even honestly, to an
unprompted question by an employee. Accordingly, I find
that, as to May 30 only, paragraph 6(a)(1) has been convinc-
ingly supported by competent proof.
CONCLUSIONS OF LAW
1. Charles G. Watts, Inc. d/b/a Cream of the Crop is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Fresh Fruit & Vegetable Workers, Local 78-B, United
Food & Commercial Workers International Union, AFL–
CIO, CLC is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By threatening employees on May 30 that they would
lose employment opportunities if they selected the Union as
their collective-bargaining representative, Respondent vio-
lated Section 8(a)(1) of the Act.
REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
III. THE REPRESENTATION CASE
The Union’s objections to conduct affecting outcome of an
election essentially paralleled the 8(a)(1) conduct of which
Respondent is accused. Since merit is completely found in
one such allegation, Objection 2 is sustained on the basis of
probative evidence in the case taken as a whole. Dal-Tex Op-
tical Co., 137 NLRB 1782 (1962). This is in accord with the
Board’s usual policy of directing a new election whenever
unfair labor practices occur during the critical period because
‘‘[c]onduct violative of Section 8(a)(1) is, a fortiori, conduct
which interferes with the exercise of a free and untrammeled
choice in an election.’’ Dal-Tex, supra at 1786. The only rec-
ognized exception to this policy is discussed in Superior
Thrift Markets, 233 NLRB 409 (1977), when it is virtually
impossible to conclude that such conduct could have affected
results of the election based on a consideration of ‘‘the num-
ber of violations, their severity, the extent of dissemination,
the size of the unit, and other relevant factors.’’ Here, the
circumstances clearly warrants setting aside the second or
‘‘rerun’’ election.
Disposition
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Charles G. Watts, Inc. d/b/a Cream of the
Crop, Huron, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of employment op-
portunities if the Union becomes their collective-bargaining
representative.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Huron, California, copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being signed by Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to em-
ployees are customarily posted.6 Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER ORDERED that the second election of July
17, 1989, be set aside, and a new rerun election conducted
at such time and under such circumstances as the Regional
Director shall deem appropriate.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
919CREAM OF THE CROP
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten you with loss of employment op-
portunities if Fresh Fruit & Vegetable Workers, Local 78-B,
United Food & Commercial Workers International Union,
AFL–CIO, CLC becomes your collective-bargaining rep-
resentative.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
CHARLES G. WATTS, INC. D/B/A CREAM OF
THE CROP