Excel Container, Inc.

National Labor Relations Board - Board Decisions

Nov 7, 1997

325 N.L.R.B. 17 (N.L.R.B. 1997)

17
325 NLRB No. 14
EXCEL CONTAINER, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. In this regard the Respondent contends, inter alia, that the
judge improperly credited one part, but discredited another part, of
employee Guadalupe Cardenas Ortega’s testimony regarding a con-
versation that he had with Pedro Medina. We note, however, that
‘‘nothing is more common in all kinds of judicial decisions than to
believe some and not all, of a witness’ testimony.’’ NLRB v. Univer-
sal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950). The Respond-
ent also contends that the judge’s credibility resolutions regarding
Ortega’s discharge, and thus her finding that the discharge violated
Sec. 8(a)(3) and (1), are the result of bias. After careful examination
of the entire record we are satisfied that this contention is without
merit. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
2 We have modified the Order to reflect that the Respondent’s in-
stallation of the buzzer system had the effect of curtailing the em-
ployees’ paid wash-up time as the judge stated in her analysis, as
well as in her conclusions of law.
3 Further, the use of the date that the unfair labor practice oc-
curred better effectuates the policies of the Act. Thus, we note that
the charge can be filed up to 6 months after the alleged unfair labor
practice occurred and, as noted by the judge here, the first charge
filed may not generate any complaint allegations, or all complaint
allegations generated by the first charge may be dismissed.
Excel Container, Inc. and Teamsters Local 714, af-
filiated with International Brotherhood of
Teamsters, AFL–CIO. Cases 13–CA–33569, 13–
CA–33593, and 13–CA–33598
November 7, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On May 30, 1997, Administrative Law Judge Nancy
M. Sherman issued the attached decision. The Re-
spondent filed exceptions with supporting argument
and the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings1, and conclusions and to adopt the rec-
ommended Order as modified.2
In Indian Hills Care Center, 321 NLRB 144 (1996),
and subsequent cases, the respondent was required, if
it had gone out of business or had closed its facility,
to mail a copy of the notice to employees employed
by it at any time since the date the charge was filed.
In fashioning a remedy here, however, the judge rea-
soned that the triggering date of respondent’s notice-
mailing obligation should be the date of the first unfair
labor practice rather than the date that a charge is
filed.
After careful consideration, we have decided to
modify the standard provision to use the date of the
first unfair labor practice. The purpose of the notice,
as the judge noted, is to ensure that employees are no-
tified of the outcome of the Board proceeding. See In-
dian Hills, supra. The use of the date that the first vio-
lation of the Act occurred as the operative date ensures
that all employees who were exposed to the unfair
labor practice and its effects will be notified of the
outcome of the Board proceeding.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Excel
Container, Inc., Aurora, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1(d).
‘‘(d) Discouraging membership in Local 714, or any
other union, by forbidding employees to consume food
and beverages at their machines, by installing buzzer
systems which have the effect of curtailing employees’
paid wash-up time, by ceasing the use of air-condi-
tioners, by removing telephones, by withdrawing the
privilege of free coffee, by discharging employees, or
by otherwise discriminating with respect to hire or ten-
ure of employment or any term or condition of em-
ployment.’’
2. Substitute the following for paragraphs 2(e) and
(f) and reletter the subsequent paragraphs.
‘‘(e) Eliminate the buzzer system instituted on July
24, 1995, and thus restore the amount of paid wash-
up time which employees received prior to the installa-
tion of the buzzer system, unless the Respondent can
show that such a system would have been instituted
after July 24, 1995, even in the absence of union activ-
ity.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
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18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 This consolidated complaint was originally based partly on a
charge with Case 13–CA–33616. On October 25, 1996, the Regional
Director approved withdrawal of this charge, severed it from the
other cases covered by the complaint, and dismissed those portions
of the complaint which were based on the withdrawn charge.
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT give you the impression of surveil-
lance over meetings of Teamsters Local 714, affiliated
with International Brotherhood of Teamsters, AFL–
CIO.
WE WILL NOT offer you benefits if you continue to
refrain from supporting Local 714.
WE WILL NOT interrogate you about Local 714 in a
manner constituting interference, restraint, or coercion.
WE WILL NOT discourage membership in Local 714,
or any other union, by forbidding you to consume food
and beverages at your machines, by installing buzzer
systems which have the effect of curtailing your paid
wash-up time, by ceasing the use of air-conditioners,
by removing telephones, by withdrawing the privilege
of free coffee, by discharging you, or by otherwise dis-
criminating with respect to hire or tenure of employ-
ment or any term or condition of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights under the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Guadalupe Cardenas Ortega and
Pete Medina full reinstatement, as nonprobationary em-
ployees, to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Guadalupe Cardenas Ortega and
Pete Medina whole for any loss of earnings and other
benefits resulting from their discharges, less any net
interim earnings, plus interest.
WE WILL rescind the rule which forbids you to eat
food or to drink beverages at your machines.
WE WILL restore the privilege of free coffee to the
employees, in the same manner that it was available
before July 21, 1995; and make you whole, with inter-
est, for any losses you may have suffered by reason
of our withdrawal of free coffee privileges.
WE WILL eliminate the buzzer system instituted on
July 24, 1995, which had the effect of curtailing the
amount of paid wash-up time which employees re-
ceived, unless we can show that even in the absence
of union activity, this system would have been in-
stalled thereafter.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the discharges of Guadalupe Cardenas Ortega and Pete
Medina and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the
discipline will not be used against them in any way.
EXCEL CONTAINER, INC.
Richard S. Andrews, Esq. and Peter Hines, Esq., for the Gen-
eral Counsel.
Walter J. Liszka, Esq. and James R. McCann, Esq., of Chi-
cago, Illinois, for Respondent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. These
consolidated cases were heard before me in Chicago, Illinois,
on October 30 and 31 and November 1, 1996, pursuant to
a charge in Case 13–CA–33569 filed by Teamsters Local
714, affiliated with International Brotherhood of Teamsters,
AFL–CIO (the Union) against Respondent Excel Container,
Inc. on July 25, 1995; a charge in Case 13–CA–33593 filed
by the Union against Respondent on August 2, 1995; a
charge in Case 13–CA–33598 filed by the Union against Re-
spondent on August 4, 1995, and amended on October 11,
1995; and a consolidated complaint issued on October 31,
1995, and amended on February 5, 1996.1 The complaint in
its final form alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act (the Act) by in-
terrogating employees about their union sympathies and ac-
tivities, by promising them benefits in order to dissuade them
from supporting the Union, and by creating an impression
among its employees that their union activities were under
surveillance. In addition, the complaint in its final form al-
leges that Respondent violated Section 8(a)(3) and (1) of the
Act by imposing on its employees, to discourage their union
activity, more onerous and rigorous working conditions, and
by discharging employees Guadalupe Cardenas Ortega and
Pete Medina.
On the basis of the record as a whole, including the de-
meanor of the witnesses, and after due consideration of the
posthearing briefs filed by counsel for the General Counsel
(the General Counsel) and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND THE UNION’S STATUS
Respondent is a corporation with an office and place of
business in Aurora, Illinois, where it manufactures and sells
corrugated cardboard boxes. During the calendar year preced-
ing the issuance of the complaint, a representative period,
Respondent purchased and received at its Aurora facility
goods and materials valued in excess of $50,000 directly
from points outside Illinois, and sold and shipped goods val-
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19EXCEL CONTAINER, INC.
ued in excess of $50,000 from its Aurora facility directly to
customers located outside Illinois. I find that, as Respondent
admits, it is engaged in commerce within the meaning of the
Act, and that assertion of jurisdiction over its operations will
effectuate the policies of the Act.
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Preelection Violations of Section 8(a)(1)
In February or March 1995, Respondent’s employee Jose
Crisanto telephoned Genaro Rodriguez, an organizer for the
Union, to inquire about the benefits of union representation.
In the next few months, Respondent’s employees held union
meetings on Friday afternoons, after work, at a restaurant
called Reynosa in Aurora, Illinois. Among the dozen or more
different employees who attended one or more of these meet-
ings were truckdriver Pete Medina (an alleged discriminatee),
stacker Guadalupe Cardenas Ortega (also an alleged
discriminatee), assistant machine operator Pedro Medina (the
brother-in-law of Cardenas Ortega; no kin to Pete Medina,
so far as the record shows), and machine assistant Avelina
Alvarado. At one or another of these meetings, all of the em-
ployees named in the preceding sentence signed documents
indicating that they wanted to be represented by the Union.
On May 15, 1995, the Union filed with the Board a rep-
resentation petition seeking a unit which included production,
maintenance, shipping, and truck driving employees. On June
22, 1995, the Regional Director directed an election in that
unit. The election was scheduled for July 21, 1995, a Friday.
Three or four of the Friday union meetings were attended
by production employee Pedro Medina. A few days before
the election, on a Monday following one of these Friday
union meetings which Pedro Medina attended, Juan Osorio,
who Respondent admits was a supervisor for and an agent
of Respondent and who had not attended that meeting,
brought up with Pedro Medina the subject of the meeting
while the two men were at work. Osorio asked Medina how
things were going with the Union and the meetings, to which
Medina replied that he did not know what Osorio was talking
about. On another occasion , Osorio told Medina that Osorio
knew what days the Union was having these meetings and
who was there. Osorio went on to say that Medina was
among those present, but did not name anyone else who had
attended. Medina, who did not know whether Osorio was
telling the truth and did not want him to know that the em-
ployees were having a union meeting, replied that the em-
ployees were meeting there for the sole purpose of having
dinner.
About April 1995, after talking to employee Alvarado
about Osorio’s house, he asked her when she was going to
buy a house. She told him that she would like to buy a
house. Alvarado’s duties called for her to leave a daily report
in the offfice of Osorio, who was her immediate supervisor.
On a visit to Osorio’s office for this purpose, after she had
attended several union meetings and during the week before
the election, she encountered Osorio. He brought up the sub-
ject of the Union, and asked what she knew about it. She
untruthfully said that she knew nothing. He asked whether
she had gone to a union meeting. She untruthfully said no.
Then, he said that Respondent could provide her with help
to buy a house. Alvarado gave honest testimony that ‘‘right
there’’ she was not afraid when he asked her about the
Union, but ‘‘when I felt different it was when—like he was
trying to buy me . . . when he gave me the offer that the
company could help me to buy a house.’’ During the July
21 election, she acted as the Union’s observer. Respondent
never helped her to buy a house.
My findings as to these Osorio—Medina and Osorio—Al-
varado conversations are based on the employees’
uncontradicted testimony. Osorio did not testify. He was ef-
fectively served with a subpoena issued at the General Coun-
sel’s behest; but Osorio did not appear pursuant to that sub-
poena, and the General Counsel rested his case on November
1, 1996, without seeking enforcement of that subpoena.
Osorio voluntarily resigned from Respondent’s employ on
October 18, 1996, more than 4 months after the issuance of
the notice of hearing pursuant to which the hearing began on
October 30, 1996. On an undisclosed date between his res-
ignation and November 1, 1996, Osorio was incarcerated by
the Immigration and Naturalization Service; between an un-
disclosed date prior to November 11, 1996, and at least until
November 19, 1996, Osorio was in Mexico. Respondent
never effectively served Osorio with a subpoena. By order
dated December 2, 1996, I denied Respondent’s motion to
receive, as substantive evidence, the prehearing affidavit
which then Supervisor Osorio gave to counsel for the Gen-
eral Counsel in the presence of Respondent’s counsel on Au-
gust 22, 1995, during the investigation of the charges and be-
fore the complaint issued.
B. Alleged Postelection Unfair Labor Practices
1. Alleged imposition of more onerous and rigorous
working conditions
a. Prelunch conduct on election day
The election was held between 6 and 8 a.m. on July 21,
1995, in the employee lunchroom. The tally of ballots re-
vealed that 13 votes were cast for the Union, 11 were cast
against the Union, and 2 ballots (a determinative number)
were challenged. So far as the record shows, no objections
to the election were ever filed. Later that morning, Glenn
Fortune (who is Respondent’s part owner, and also its vice
president of production) held a meeting with all of Respond-
ent’s production employees. Using Osorio as a translator,
Fortune (an Anglophone who speaks almost no Spanish) told
the employees (for most of whom Spanish is a first lan-
guage) that effective immediately there was a new rule which
forbade the consumption of food and beverages at the em-
ployees’ machines. Prior to this announcement, the employ-
ees had been allowed to eat and drink at their machines
while they were working. Fortune also announced that begin-
ning the following Monday, July 24, Respondent was putting
into operation a buzzer system which would signal the em-
ployees when to commence working at the beginning of the
shift, to cease working at the end of the shift, and to begin
and end their break and lunch periods.
At all relevant times beginning before the union activity
started, Respondent’s rules have required employees to main-
tain the work area and keep it clean. Fortune testified that
he told the employees on July 21, 1995, that they could no
longer consume food or beverages at their work stations be-
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20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 My finding that a buzzer sounded at about 3:28 p.m., as well as
at 3:30 p.m., is based on Pedro Medina’s testimony. I believe that
employee Crisanto was confused in testifying otherwise.
3 This finding is based on the testimony of Pedro Medina,
Cardenas Ortega, and Crisanto. Moreover, Respondent’s answer ad-
mits that the telephone was removed on or about July 21. For de-
meanor reasons, I do not credit the testimony of Smith, who tended
cause on at least three occasions in 1995, he had found cof-
fee cups and broken bottles in the work area; that their pres-
ence represented a safety hazard; and that he had found two
broken glass bottles in the work area on the morning of July
21 and shortly after the election.
Maintenance mechanic Rudy Smith testified that ‘‘way be-
fore the Union,’’ Fortune and/or Company President/Owner
Michael Mikula told Smith that management wanted a buzz-
er system because ‘‘the guys would be standing on a ma-
chine and keep working and everybody else would go to
break. Nobody ever paid any attention, no buzzers telling no-
body what to do. They’d just constantly work.’’ The equip-
ment for the buzzer system whose effectuation was an-
nounced to the employees on July 21, 1995, was included in
the assets which Respondent acquired from another firm,
Monarch Packaging, whose inventory Respondent had con-
tracted to purchase in May 1994. The purchased buzzer
equipment was removed from Monarch’s premises in Chi-
cago, and was installed in Respondent’s Aurora plant by
Smith, about the fall of 1994. From time to time thereafter,
Smith attempted to repair the buzzer system and then advised
Fortune that it was operational, but it repeatedly failed to
work properly and repeatedly had to be disconnected. For-
tune credibly testified that Respondent had no operational
buzzer system for a good part of a year prior to July 21,
1995. On direct examination as an adverse witness called by
the General Counsel, Fortune testified that 3 or 4 days before
the July 21 election, Smith told him that the buzzer system
was ready to function. However, Fortune’s prehearing affida-
vit states that Smith so advised him ‘‘Just prior to the [July
21] meeting’’ with the employees, and on recross-examina-
tion by Respondent’s counsel, Fortune testified that Smith so
advised him after the election. Moreover, Fortune’s prehear-
ing affidavit states that Smith so advised him ‘‘just before’’
a July 21 meeting with the employees in the afternoon,
whereupon Fortune told the employees that a buzzer system
was being instituted, whereas he had initially testified as an
adverse witness that on July 21 he had so advised the em-
ployees before the lunchbreak, which begins at 11:45 a.m.
Fortune and Smith both testified that Respondent eventu-
ally bought a new buzzer system. However, Fortune testified
that this system was ordered by Smith and that Fortune did
not know when it was ordered; whereas Smith testified that
the new system was bought by Fortune. Smith initially testi-
fied that Fortune bought this new system ‘‘probably’’ before
the July 21 union election; but Smith’s subsequent testimony
tends to represent that Fortune bought the new system some
time later. Respondent’s records show that a part for the old
system was shipped to Respondent on August 8, 1995; Smith
testified that he ordered the part about this time, and that the
buzzer system was operational before he ordered this part, al-
though (he testified) he could not recall exactly how long be-
fore. Respondent’s answer states that the buzzer system was
not operational until after July 21, 1995.
The buzzer system went into effect about the week follow-
ing the election. Before the buzzer system went into effect,
the employees had been free to stop working and start wash-
ing themselves up at any time after they finished cleaning the
machines, which are shut down for the day at 3 or 3:15 p.m.
and prior to the 3:30 p.m. clock-out time. After the buzzer
system went into effect, the employees were not permitted to
begin washing themselves until a buzzer sounded at about
3:28 p.m., 2 minutes before a second buzzer signaled the end
of the workday.2
2. Alleged election day changes in the lunchroom
After the meeting during which Fortune announced the in-
stitution of a buzzer system and prohibited employees from
consuming food or beverages at their machines, the employ-
ees returned to work. The employees worked for less than
an hour and then went to lunch at the regular time, 11:45
a.m., in the employee lunchroom. The General Counsel
claims that by the time they reached the lunchroom Respond-
ent had effected certain changes therein because the initial
tally of ballots showed more ‘‘yes’’ then ‘‘no’’ votes. These
at least alleged changes are described below.
a. Removal of the telephone
At all relevant times prior to the election, a telephone was
hung outside the door of the lunchroom, which opens into
the production area. At the time this instrument was origi-
nally installed, it was the only telephone in the plant, and the
only means of communication between the plant and the of-
fice, which are 75 to 80 feet apart. By July 1995, a telephone
instrument had also been installed in Osorio’s office, which
is right around the corner from the lunchroom. However,
Fortune credibly testified that the telephone instrument out-
side the lunchroom was still a convenience for management.
At all material times, employees had been permitted to use
this telephone instrument free of charge to make outgoing
local calls. As a witness for Respondent, Fortune testified
that on a date he did not recall Osorio or Smith told him that
the bell on this telephone instrument did not work. However,
Fortune credibly testified that he was never told that this
telephone instrument was unusable for the purpose of calling
Respondent’s office or for making outgoing calls, and he did
not testify to having been advised that this instrument was
defective in any respect other than the bell. Fortune testified
that he did not tell anyone to remove that telephone instru-
ment, and that he did not recall whether the defect in the old
telephone instrument was drawn to his attention at the time
he was told that it had been removed. Further, although at
certain points Fortune credibly testified that he purchased a
new telephone instrument after Smith had informed him that
the old instrument was broken and Smith had removed it, at
one point Fortune testified that the old one may have been
repaired and reinstalled. Smith credibly testified that on a
date he was not asked to give, he told Fortune about the de-
fect in the telephone instrument, and that Fortune told him
to take the existing telephone instrument down and Fortune
would buy another one. The old telephone instrument re-
mained on the wall outside the lunchroom until the day of
the election. However, by the time the employees went to the
lunchroom for lunch on the day of the election, the old tele-
phone instrument had been removed.3 Fortune credibly testi-
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21EXCEL CONTAINER, INC.
to be vague and uncertain as to dates, that the old telephone instru-
ment was not removed until ‘‘a couple weeks after the election.’’
4 My finding that the new telephone was not installed until after
October 10, 1995, more than 12 weeks after the old one had been
removed, is based on the testimony of employee Pedro Medina. Al-
though Smith testified that the new telephone was installed ‘‘prob-
ably immediately’’ after the old one was removed, he dated the re-
moval as ‘‘a couple weeks after’’ the election, and dated the union
election as ‘‘maybe in August sometime . . . I don’t know.’’ For-
tune testified that he bought the replacement telephone instrument
some time in August on a date which he did not recall. He further
testified that he showed the newly installed telephone instrument to
Richard Andrews, counsel for the General Counsel, when he came
to the facility on August 22 and took Fortune’s affidavit. I do not
credit the foregoing testimony by Fortune, for demeanor reasons, be-
cause his testimony about the telephone matter was uncertain and in-
cluded internal inconsistencies, and because he admittedly failed to
tell Andrews on August 22 that a new telephone had been installed,
even though Fortune’s affidavit taken by Andrews on that day con-
tains some details about the telephone removal and states that ‘‘there
used to be a telephone on the outside of the lunchroom in the
plant.’’
5 The coffee, cream, and sugar were paid for by Part Owner For-
tune personally.
6 This finding is based on credible parts of the testimony of Pedro
Medina and Cardenas Ortega. For demeanor reasons, and because
Respondent’s answer states that the coffee makers were removed
‘‘due to the need for repair,’’ I do not credit Fortune’s testimony
that no coffee makers were then in the lunchroom, because the one
which he himself had provided had broken down ‘‘somewhere in the
time frame’’ of July 21, 1995, and was in the maintenance shop, and
the other had been retrieved by the salesman employee who owned
it. Although maintenance employee Smith did testify that on a few
occasions he had been asked to repair one of the coffee makers in
the lunchroom, he was not asked about dates. For demeanor reasons,
I do not believe his uncorroborated testimony that nobody ever used
a second coffee maker which was also in the lunchroom.
fied that because of the additional telephone instruments in-
stalled in the facility after the initial installation of the tele-
phone instrument near the lunchroom, and because during
this period he and Osorio had begun to carry two-way radios,
the instrument near the lunchroom, although a convenience,
was no longer needed by management. A new telephone in-
strument was installed, where the old one had been, on an
undisclosed date between October 11, 1995, and the October
1996 hearing.4
At least before the removal of the telephone instrument
outside the lunchroom, Respondent also maintained in the die
room, about 80 feet from the lunchroom, a telephone instru-
ment from which employees were permitted to make out-
going calls without charge. So far as the record shows, this
telephone remained in the die room, and remained available
for free local calls by employees, at all relevant times after
the removal of the lunchroom telephone.
b. Removal of coffee makers
Since the beginning of Respondent’s operations, in 1989,
Respondent had on a fairly consistent basis operated coffee
makers from which employees were permitted to help them-
selves free of charge.5 On the last day before the election,
two operable coffee makers were in the lunchroom.6 They
were still operating in the lunchroom on the morning of the
election, although the timing of the election (6 to 8 a.m.) left
some of the employees without enough time to obtain coffee
from them. Before lunch, Fortune put one of them into the
dumpster. The credible evidence fails to show what happened
to the other. Neither of them was in the lunchroom when the
employees entered the lunchroom at 11:45 a.m. on July 21.
In 1993, Respondent entered into a contract with a vend-
ing company called Tom’s, which already operated a candy-
vending machine on Respondent’s premises, to install and
operate a coffee-vending machine. Tom’s brought the coffee-
vending machine to Respondent’s premises in 1994, before
the union campaign began, but never hooked it up. There-
after, Tom’s went into bankruptcy, and in July or August
1995, Respondent acquired ownership of the coffee machine.
Fortune asked Smith to hook it up, and it has been operating
since some time after July 1995.
c. The air-conditioner
About 1992, Fortune brought a wall-type air-conditioner
from home and had Smith install that air-conditioner in the
employee lunchroom. Smith credibly testified that during the
summer of 1995, which was unusually hot, the lunchroom
air-conditioner stopped running at least three times. How-
ever, in the first part of the morning of the July 21 election,
this air-conditioner was working (see infra). When the em-
ployees came to the lunchroom for lunch on July 21, the
room was exceedingly hot, the air-conditioner was
unplugged, and the cover and the control knob had been re-
moved. The air-conditioner was not turned on again until
about a month later. Fortune denied having instructed anyone
to turn off the air-conditioner in order to penalize the em-
ployees for seeking union representation.
My finding that the air-conditioner was working on July
21 before the lunch period is based on the testimony of
Cardenas Ortega. Pedro Medina credibly testified that the air-
conditioner was working when he had lunch the day before
the election. At one point he testified that before the election
‘‘they were having some problems with the air-conditioner.’’
However, he later testified that except for the appearance of
the air-conditioner (that is, the cover and the knob had been
removed), he did not know whether the air-conditioner had
broken down. Moreover, he testified that on the day of the
election, Respondent ‘‘turned off the air-conditioner and took
the knob off it.’’ He was not asked the period over which
the ‘‘problem’’ to which he referred had been arising. I re-
gard Cardenas Ortegas as a more honest witness than Pedro
Medina. In any event, their testimony does show that during
a continuous period which began before the July 21 election,
the air-conditioner had been operating, although (perhaps)
not very effectively, until being turned off before the July 21
lunchbreak. Fortune did not testify that problems with the
air-conditioner arose on or a few days before July 21. To the
extent inconsistent with Cardenas Ortega’s testimony, for de-
meanor reasons, I do not credit Smith’s November 1996 tes-
timony, which is generally vague as to dates, that since June
1995 to the present the air-conditioner had been continuously
operating except when it had broken down.
d. Removal of microwave oven
Before the election, the lunchroom had contained three
microwave ovens—one of them purchased by a group of em-
ployees who got together and bought one, one of them per-
sonally owned by Fortune, and one of them personally
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22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Fortune testified that he had not known this until so advised by
Osorio.
8 He testified through a Spanish-English interpreter.
9 The application gives the same address for Cardenas Ortega and
for his brother-in-law, Pedro Medina.
10 In view of Fortune’s testimony that the bundles were stacked
properly (although too slowly), and for demeanor reasons, I credit
Cardenas Ortega’s testimony that Fortune told him on only one oc-
casion how to stack the bundles, and Cardenas Ortega’s denial of
Pedro Medina’s testimony that on at least two or three occasions
Fortune and/or Osorio told Cardenas Ortega to ‘‘do it like this.’’
owned by Osorio. During the interval between the election
and the lunchbreak that day, employee Cardenas Ortega saw
Osorio and employee Smith (an eligible voter) remove
Osorio’s microwave oven from the lunchroom. The evidence
fails to show whether any of the employees knew that this
microwave oven was Osorio’s property.7 Fortune testified
without contradiction that nobody from management had
ever told Osorio to remove this oven from the lunchroom.
Osorio did not testify. As previously noted, employees
Cardenas Ortega and Pedro Medina had seen Fortune, that
same morning and after the election, throw into the dumpster
a coffee pot which had been operative earlier that morning.
Moreover, during the afternoon break on the day of the elec-
tion Cardenas Ortega found in the dumpster a wall clock
which had been in the lunchroom. Cardenas Ortega retrieved
this clock and took it home, where it worked perfectly well.
2. Allegedly discriminatory election—day discharge of
Guadalupe Cardenas Ortega
Guadalupe Cardenas Ortega’s first language is Spanish,
and he knows little or no English.8 During his job interview
on April 5, 1995, with Supervisor Osorio, who is bilingual
in Spanish and English, Osorio gave an English-language
blank application form to employee Pedro Medina, who is
also bilingual, and asked him to fill it out for Cardenas Or-
tega, who is Medina’s brother-in-law. Medina told Cardenas
Ortega that this document was an employment application,
and wrote in the blanks what he told Medina to put in there.
This application checks ‘‘yes’’ before the inquiry, ‘‘Do you
have any physical limitations that preclude you from per-
forming any work for which you are being considered?’’ but
contains no entries in the blank stating ‘‘If yes, what can be
done to accommodate your limitation?’’ In addition, this ap-
plication names Pedro Medina in the blank calling for ‘‘Ref-
erences: Give the names of three persons not related to you
whom you have known at least one year.’’9
Between early June and about the end of July 1995,
Cardenas Ortega attended three union meetings. As noted
above, Supervisor Osorio told employee Pedro Medina that
Osorio knew what days the Union was having these meetings
and who was there. In addition, Osorio told Medina that
Osorio knew Medina had attended; and the only meeting Me-
dina attended was also attended by Cardenas Ortega. At the
first of these meetings, Cardenas Ortega signed a paper to
show that he wanted the Union.
The employees who attended one or more union meetings
included the entire crew on the Flexo machine—namely, Jose
Crisanto, Pedro Medina, and Cardenas Ortega. Immediately
after the election tally was announced, Fortune told machine
operator Crisanto (through Osorio) to speed up the Flexo ma-
chine, whose product Cardenas Ortega was stacking. As
Cardenas Ortega prepared to punch out that afternoon,
Osorio summoned him to Osorio’s office. Osorio said that
Fortune was ‘‘really angry,’’ that Cardenas Ortega was not
doing his duties well, and that Osorio was ‘‘really sorry’’ but
Cardenas Ortega did not have work any more. Cardenas Or-
tega said that he did not understand why Fortune was saying
that, because, about 15 days before the election, Fortune had
told the three-employee crew on the Flexo machine (includ-
ing Cardenas Ortega) that they were doing a good job.
Osorio said that Cardenas Ortega was one of the people who
had worked for the Union.
Cardenas Ortega’s personnel file contains a typewritten
memorandum, signed by Osorio, which is dated July 24,
1995, 3 days after Cardenas Ortega’s discharge. It recites:
‘‘To: Guadalupe Cardenas (Personnel File),’’ but there is no
evidence that he saw or received a copy at any material time.
The memorandum states:
On several [occasions] I have talked to Guadalupe
about his work performance. Namely not being able to
keep up with the Flexo. In fact, there are notations in
his file concerning this very fact. On 6–26–95 we ex-
tended Guadalupe’s probationary period until 10–5–95
in hopes that he would improve. But at this time there
has been no improvement in his performance. After re-
peatedly talking to Guadalupe and not seeing any re-
sults I have no choice but to terminate him.
Osorio did not in fact tell Cardenas Ortega that he had poor
performance on the machine and that his production was
below standard, or that he would be removed from his job
if his performance did not improve; nor did Osorio in fact
repeatedly tell him that he was doing a bad job.
During most of Cardenas Ortega’s tour of duty with Re-
spondent, he worked as a helper on the Flexo machine.
When product leaves this machine, it consists of various
sized cartons whose members are lying flat but which are
ready for assembly into usable cartons. After leaving the
Flexo machine, these flat unassembled cartons are carried by
a conveyor belt to a bander machine and then, to a point on
the conveyor belt from which a helper removes the banded
bundles of unassembled cartons and stacks them. Fortune tes-
tified that Cardenas Ortega was discharged because he
stacked the banded bundles of cartons too slowly and, in
consequence, the crew was constantly shutting down the
Flexo machine so that he could catch up.10 Fortune further
testified that his decision to discharge Cardenas Ortega was
reached before July 5, 1995; that July 5, 1995, was the last
day of the probationary period of Cardenas Ortega (who had
started to work on April 5); that Fortune decided not to dis-
charge him on that date because of the advice of counsel,
who recommended that he not be discharged at that point in
time because it might be a case for an unfair labor practice
complaint owing to the union activity that was going on in
the plant at that time; and that ‘‘we’’ made a decision to ex-
tend Cardenas Ortega’s probation for 90 days—that is, until
October 5, 1995. Fortune went on to testify that he remained
dissatisfied with Cardenas Ortega’s work, and that during the
week before the July 21 election Fortune decided ‘‘for sure’’
to terminate him. Fortune testified that Respondent let him
work for the rest of the day, after the polls closed at 8 a.m.,
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23EXCEL CONTAINER, INC.
11 My findings in the last two sentences are based on Pedro
Medina’s uncontradicted testimony about a report made to him by
Cardenas Ortega. Cardenas Ortega’s testimony as to Osorio’s report
to Cardenas Ortega about Fortune’s statements to Osorio was not re-
ceived to show that Fortune in fact made such statements. However,
the credible portion of Medina’s testimony that Cardenas Ortega at-
tributed certain remarks to Osorio was received to show that Osorio
in fact made such remarks; see Rule 801(d)(2)(A) of the Federal
Rules of Evidence. For demeanor reasons, I accept Cardenas
Ortega’s denial of Medina’s testimony that Cardenas Ortega said to
him that Osorio had told Cardenas Ortega that his probation was
going to be extended.
12 Fortune testified that he had seen Osorio hand this document to
Cardenas Ortega. However, Fortune’s prehearing affidavit states that
he did not know whether this letter was given to Cardenas Ortega.
Nor is there any other evidence that he received it.
13 Before testifying for the General Counsel under subpoena, Pedro
Medina told Richard Andrews (counsel for the General Counsel) that
Medina was reluctant to testify because ‘‘I might have some prob-
lems at work because of them’’ and that it ‘‘could happen’’ that Re-
spondent would hold against him a mistake at work after the case
was over. Medina eventually complied with the subpoena because
both Andrews and Respondent told him that his testimony could be
required. Later, Pedro Medina voluntarily testified for Respondent.
14 Crisanto testified for the General Counsel, but was not asked
about Cardenas Ortega’s work performance. At the time of the hear-
ing, Crisanto was still in Respondent’s employ. I draw no inference
from his failure to testify about Cardenas Ortega’s work perform-
ance.
because this was Respondent’s ‘‘normal procedure’’ and to
be released at the end rather than the middle of the day
causes less ‘‘embarrassment’’ to the employee. However, in
his prehearing affidavit Fortune stated that the reason for his
decision to defer until after the vote the discharge message
to Cardenas Ortega was Respondent’s need to keep the Flexo
machine operating.
As to the probationary-period matter, the record shows as
follows: Respondent follows the policy of putting each newly
hired employee on a 90-day probationary period. If the em-
ployee completes his probationary period satisfactorily he be-
comes a regular employee, becomes eligible for certain
fringe benefits, and receives an automatic raise of 50 cents
an hour. Respondent has the option of extending that proba-
tion if Respondent so desires. With the exception noted infra
fn. 11, it is uncontradicted that nobody from management
ever told Cardenas Ortega in so many words that his first 90
days of employment were a probationary period. However,
Cardenas Ortega did learn from other employees that when
they passed their probationary period of 90 days they got an
automatic raise. On July 5, 1995, he approached Osorio, and
asked about the raise he was supposed to get after 90 days
. Osorio said that he had talked to Fortune, and that Fortune
had said that ‘‘they weren’t happy with the job that
[Cardenas Ortega] was expected to do.’’11 Cardenas Ortega
never received a wage increase. His personnel file contains
the following document, dated June 26, 1995, all of which
is typewritten and which does not bear Osorio’s written sig-
nature:
From: Juan Osorio
To: Guadalupe Cardenas
Re: Extension of Probationary Period
[Cardenas Ortega’s] work is below standard. He is not
able to keep pace with the machine and unable to per-
form other jobs, with training at an expected level. We
will extend this employee’s probationary period for an
additional 90 day period. I will reevaluate his perform-
ance on a weekly basis and inform the employee of his
progress. The probationary period has been extended to
10–5–95.
However, Cardenas Ortega credibly testified that nobody
from Respondent ever gave him this document, and that he
had never seen it until the General Counsel showed it to
him.12 Nor did Osorio come to him every week and tell him
how he was doing on the machine.
As to Cardenas Ortega’s work performance, the record
shows as follows: Fortune testified that between the date of
Cardenas Ortega’s hire and his termination he stacked all the
cartons produced by the Flexo machine. However, between
about June 7 and 12, Cardenas Ortega worked on the band-
ing machine, and during an undisclosed period he worked on
the gluer. Also, Cardenas Ortega was absent from work dur-
ing part of June 5 and on June 6, in consequence of a work-
related injury. Moreover (as Osorio knew), Cardenas Ortega
had been instructed by the doctor who treated him for this
injury to refrain until July 7 from lifting loads which exceed-
ed 25 pounds, a weight which Cardenas Ortega’s stacking
duties required him to lift from time to time. Further, as dis-
cussed infra, Cardenas Ortega credibly testified that on one
occasion, Crisanto helped him perform his stacking duties.
Fortune testified that Cardenas Ortega’s at least alleged
failure to stack bundled cartons fast enough to keep up with
the Flexo machine, with a consequent need to shut down the
machine so he could catch up, came to Fortune’s attention
through personal observation. However, his prehearing affi-
davit states that most of what he knew about Cardenas
Ortega’s work performance came from Fortune’s discussions
with Osorio. In view of the internal inconsistencies in For-
tune’s testimony as to the source of his alleged information
about Cardenas Ortega’s work, in view of the vagueness of
employee Pedro Medina’s testimonial explanation therefor
(‘‘sometimes we had to stop the machine because the line
was so full . . . maybe [Cardenas Ortega] wasn’t [stacking]
fast enough or he couldn’t manage. I don’t know’’),13 and
for demeanor reasons, I credit employee Crisanto’s testimony
that Respondent had problems with the Flexo machine about
twice a month, and Cardenas Ortega’s testimony that he kept
up with the Flexo machine, that the line crowded up on only
one occasion, that this problem resulted from the operation
of the bander, that on this occasion Crisanto helped him with
the stacking, and that this was the only occasion on which
Cardenas Ortega received help in stacking.14 Moreover, as to
the period for which production statistics appear in the record
(May 6—August 12, 1995), no particular difference appears
between the weeks preceding Cardenas Ortega’s discharge
and the weeks afterward. Furthermore, although production
was relatively low at the time when (according to Fortune)
Cardenas Ortega’s termination for poor production was dis-
cussed (that is, the first part of June if not the last part of
May), production for the week ending May 26 was the high-
est shown in the record; the production records for the weeks
ending June 2 and 16 state ‘‘not enough orders’’; and during
most of the week ending June 9, Cardenas Ortega was absent
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24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 My findings in this sentence are based on Medina’s testimony.
Cessna did not deny that he so advised Medina, although Cessna tes-
tified that the 50-cent increase had nothing specifically to do with
Medina’s work performance during his first tour of duty, and that
Cessna gave Medina this increase because Cessna felt that $9.50 was
low for a truckdriver. Fortune testified that before Medina came
back, ‘‘we had determined’’ that because of the difficulty in obtain-
ing truckdrivers, the starting rate for truckdrivers would be increased
from $9.50 to $10 an hour.
16 My findings as to this conversation are based on Medina’s testi-
mony. When asked at the hearing what Medina’s reaction was when
he was fired, Cessna testified, ‘‘To the best of my recollection, he
said ‘okay, that’s fine.’’’ Cessna was not otherwise asked about the
content of this conversation. Cessna’s prehearing affidavit, most of
which was received as substantive evidence on motion by the Gen-
eral Counsel which was opposed by Respondent, states that Cessna
told Medina that he was being discharged for unsatisfactory perform-
ance, for damaging a Rollins tractor, for a parking ticket which he
had not reported, for ‘‘other undocumented incidents including two
damaged trailers,’’ for coming in an hour late one day the previous
week, and for driving a company truck on his street, ‘‘which is resi-
dential’’. Because Medina impressed me as a more honest witness
than Cessna, I credit Medina. As discussed infra, at the hearing Re-
spondent produced evidence as to only one damaged trailer. Also,
as discussed infra, Medina credibly denied that he had damaged even
one trailer, credibly denied coming in late, and credibly testified that
there are no restrictions as to trucks on the street where his house
is located, and on which he drove his truck to reach his house for
lunch. Moreover, as discussed infra, the tractor damage cited by Re-
spondent was not caused by Medina.
because of a work-related injury or was working on the
banding machine. Also, on August 8, 18 days after Cardenas
Ortega’s discharge, Respondent issued a disciplinary warning
to employee Crisanto (who at all material times has been the
operator of the Flexo machine and controls its speed) which
blamed him for ‘‘a steady decline in productivity and a dete-
rioration of quality in the past few weeks. Your productivity
has gone from a high of 4150 pieces per hour average [in
May 21–26, when Cardenas Ortega was performing the
stacking operator] to 2585 pieces per hour average [in July
30-August 5, after Cardenas Ortega was discharged].’’ Fur-
ther, it is uncontradicted that Fortune complimented the
Flexo crew (including Cardenas Ortega) in early July; and
that he was never orally reproached about his work. Finally,
although his personnel file contains two purported typewriten
memorandums to Cardenas Ortega from Osorio (dated June
26 and 30) which criticized Cardenas Ortega’s work, it is
uncontradicted that management never gave him either of
them, and neither of them bears Osorio’s written signature.
3. Allegedly discriminatory discharge of Pete Medina
Pete Medina was first hired by Respondent, as a semi-
truckdriver, on March 21, 1995, at $9.50 an hour. He re-
signed effective April 11, 1995, before completing his proba-
tionary period. After his resignation, Respondent hired an-
other driver who left after a few days. Thereafter, effective
May 1, 1995, Respondent rehired Medina as a semidriver.
When Medina was rehired, then shipping supervisor William
Cessna, an admitted supervisor, told him that Cessna did not
want to keep on having the problems with the drivers which
Respondent had had after Medina’s resignation; and that
Medina’s initial wage rate would be $10 an hour—50 cents
higher than he had been receiving when he resigned-—be-
cause Cessna ‘‘was so happy with [Medina’s] work’’ and
Medina deserved the higher rate.15 Other drivers did not get
a 50-cent increase after May 1. During the interview when
Medina was rehired, Cessna told him that he would be on
probation for 90 days after his rehire.
In May or June 1995, Pete Medina attended a union meet-
ing at which he signed a paper to show that he wanted to
be represented by the Union. As previously noted, Supervisor
Osorio told production employee Pedro Medina that Osorio
knew who was attending the meetings. A wage increase to
Pete Medina of 50 cents an hour, effective July 8, 1995, was
recommended by Cessna and approved by Fortune on July
6, 1995—25 days before the expiration of Medina’s proba-
tionary period. As previously noted, other drivers did not get
a wage increase after May 1.
Fortune testified that it was he who made the final deci-
sion to terminate Medina, that Fortune made this decision on
Cessna’s advice, and that it was Cessna who selected July
28 as the discharge date. Fortune’s prehearing affidavit states
that this decision was made on July 28, 1995, which was the
last day Medina worked for Respondent. Cessna testified that
it was he who made the determination to discharge Medina.
Cessna further testified that he and Fortune talked about let-
ting Medina go at the beginning of July, when the ‘‘damage
and traffic invoice [see infra] came in’’; Cessna showed Me-
dina the ‘‘damage’’ invoice before Medina received his 50-
cent raise. Cessna further testified that he and Fortune also
discussed letting Medina go about July 14. Cessna went on
to testify that he and Fortune decided to fire Medina on July
28, a Friday, because Respondent’s only other driver was to
return from vacation the following Monday.
On July 28, when Medina returned from making deliv-
eries, Cessna said that he had ‘‘news’’ for Medina. Cessna
said that he was going to have to let Medina go because
Cessna had been told by Fortune and Mikula that Medina
had been seen over in his house. Medina said that he had
gone to his house (about 2 blocks from Respondent’s plant)
to eat his lunch, asked if there was anything wrong with that,
and reminded Cessna that he had previously told Medina that
he could eat his lunch at home if he wanted to. Cessna said
that his boss had said that ‘‘they don’t like that; and they’re
telling me that I’m going to have to let you go.’’ Cessna
went on to say, ‘‘I’m happy, I don’t have no problem with
your work. If I was them, I wouldn’t do this. But I have my
bosses, they tell me, and I’m going to have to live with it
. . . you’ve been doing a good job.’’16
As an adverse witness for the General Counsel on direct
examination, Cessna testified that the ‘‘major reasons’’ for
his at least alleged decision to discharge Medina were two
accidents which damaged equipment and which he failed to
report to management, and (a consideration not mentioned in
Cessna’s prehearing affidavit) failure to call in after the last
delivery was made. After some prompting by the General
Counsel, Cessna further testified that ‘‘to the best of his
recollection something about a parking ticket’’ also factored
into the discharge decision. Later, on examination by Re-
spondent’s counsel, Cessna testified that Medina was dis-
charged for the further reasons that he had failed to call in
and for ‘‘reporting to work late as opposed to calling in and
not showing up.’’ Neither of these last alleged events was
the subject of a writeup, and Medina credibly denied engag-
ing in such conduct. Medina’s personnel file contains the fol-
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25EXCEL CONTAINER, INC.
17 As a matter of routine, Respondent does not attempt to make
permanent records of such matters before the original computer en-
tries have disappeared.
18 More specifically, a passenger-side step was missing, the bump-
er was shaking, and the tractor had cracks and dents. During
Medina’s first tour of duty with Respondent, he had driven this trac-
tor, had repeatedly advised Cessna in writing that the tractor had
these defects, and had vainly asked him to have at least the bumper
repaired.
19 This finding is based on Medina’s testimony. I do not credit
Cessna’s testimony that Medina did not telephone him to advise him
of the accident on the day it occurred, for demeanor reasons and in
view of the inconsistencies in Cessna’s testimony discussed infra fns.
20–21.
20 My finding in this sentence is based on Cessna’s prehearing af-
fidavit. Cessna initially testified that Anderson said Medina had
caused damage to the parked tractor. Because Cessna gave his affi-
davit within 4 months after the incident but testified about it at least
14 months after the incident, because his subsequent testimonial de-
scription of his conversation with Anderson does not describe any
damage to the parked tractor, and because there is no evidence that
Rollins ever billed Respondent for any damage to the parked tractor,
I believe that Cessna’s testimonial reference thereto was in error.
lowing memorandum, dated July 28, 1995 (the date of
Medina’s discharge) and written and signed by Cessna:
Pete [Medina] had been warned previously about
damage to equipment mainly 2 trailer damage incidents
which he denied. After receiving a bill for tractor dam-
age from Rollins Leasing and a parking ticket from the
city of Elk Grove, we have no other choice but to ter-
minate Mr. Medina’s employment.
After Respondent ’s counsel had shown this document to
Cessna, he testified that the ‘‘main reason’’ for Medina’s dis-
charge was that he had been warned previously about dam-
age to equipment. Then, Cessna testified as follows:
Q. By [Company counsel] McCann: Were there
[lesser] reasons for discharge?
A. Yes.
Q. Would those have been memorialized in any
way?
A. Yes.
Q. How so?
A. Attendance and/or tardiness is recorded in the
Excel computer system.17
Q. Did you feel a need to enumerate those instances
in this memorandum?
A. No, I did not.
Q. Why?
A. Because I felt that this was more than enough jus-
tification for letting Pete Medina go.
Fortune testified that the July 28 memorandum quoted
above accurately reflected all the reasons for Medina’s termi-
nation. He testified that tardiness or attendance was not a
part of the decision to terminate Medina, that Cessna had
never told Fortune that Medina had a tardiness or attendance
problem, and that this issue as to Medina had never been dis-
cussed with Fortune. However, Fortune’s prehearing affidavit
states that Medina was fired partly because ‘‘he was quite
late one time’’ during the last week (July 24–28) of
Medina’s employment, and Cessna testified that he had want-
ed to discharge Medina just before July 21 but kept him on
because Respondent’s only other driver was going to be on
vacation between July 24 and 28. No writeup for this alleged
tardiness incident appears in Medina’s personnel file. Fortune
further testified that Medina was not discharged for failing
to call in when he would be absent. Fortune testified that he
decided to discharge Medina because of ‘‘some accidents,’’
or ‘‘a couple of accidents, doing damage to a truck, a trail-
er,’’ which Medina had failed to report; because of a parking
ticket which Medina had failed to report; and (a reason not
mentioned in the July 28 memorandum) because of Medina’s
alleged repeated failure to call in at the end of the day or
when he had to wait an extended period of time to make a
delivery to a customer. Medina received no writeups in con-
nection with his alleged failures to call in.
One of the incidents which at least allegedly motivated
Medina’s discharge involved two tractors owned by Rollins
Truck Rental/Leasing, from which Respondent leases all of
its tractors. In early May 1995, pursuant to Cessna’s instruc-
tions, Medina drove a tractor-trailer to Rollins’ leasing yard,
and exchanged the tractor he initially drove that morning for
one which Respondent had left with Rollins some weeks ear-
lier to repair the gear. At that time, Rollins’ yard was ex-
ceedingly foggy. After making this exchange, he hit the rear-
end tires of another Rollins-owned tractor, which was parked
in the Rollins yard, with the right side of the front bumper
of the Rollins-owned tractor which he had just picked up.
Nobody ever told Medina that the parked tractor was dam-
aged, and there is no probative or credible evidence that it
had been damaged (see infra). However, the Rollins-owned
tractor which Medina had just picked up and was driving
bore visible body damage which had occurred before Re-
spondent had left it with Rollins with a repair order limited
to the gear.18 Immediately after the accident, someone from
Rollins came over, claimed that Medina had damaged the
Rollins-owned tractor which he had been driving, and took
some pictures. At this point, using a telephone in his tractor
to call Cessna, Medina reported that he had had an accident
but that no damage had resulted, to which Cessna responded
by telling him to rehook the tractor which he had driven to
Rollins to the trailer which he had hauled to Rollins, and to
finish his working day.19
That same day, Rollins Account Manager Dave Anderson
telephoned Cessna that Medina had hit, with the tractor he
was driving, the tractor parked next to him.20 When Medina
returned to the plant later that day, Cessna told him that
‘‘Rollins’’ had called Cessna. Medina was ‘‘sketchy’’
(Cessna’s testimonial description) about the matter, but did
not contest that it occurred.
In mid-May 1995, the tractor which Medina had been
driving when he ran into the parked tractor was repaired so
as to remove the dents, replace the missing step, and secure
the bumper. About June 29, 1995, Cessna received an in-
voice from Rollins for $922, for the ‘‘repair [of] front end
damage’’ on the tractor which Medina had been driving
when it hit the rear tires of the parked tractor. Cessna
showed this invoice to Medina, and said that Rollins was
claiming that this damage had been done by Medina on Rol-
lins’ lot. Medina said that the damage reflected on the in-
voice had been done before his accident on Rollins’ lot and
that he had reported that accident to Respondent at the time
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26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 My finding that Medina did not receive an oral warning is based
on his testimony. I do not credit Cessna’s testimony that such a
warning was given during this interview, for demeanor reasons, be-
cause of Medina’s subsequent receipt and his retention of a wage in-
crease, and in view of the inconsistencies between Cessna’s testi-
mony and his prehearing affidavit. More specifically, Cessna initially
testified that he did not talk to Medina about the incident until after
receiving a June 28 invoice for repair of the tractor Medina had been
driving, but Cessna’s prehearing affidavit describes a conversation
with Medina about the incident on the same day in May when it oc-
curred.
22 As previously noted, Rollins owns all of the tractors used by
Respondent.
23 Medina testimonially speculated that the ticket may have been
issued while he was absent from his parked vehicle in order to eat
lunch.
it occurred (see supra fn. 18). He went on to say that the
accident at Rollins’ premises had occurred on a foggy and
rainy day, and that the tractor he had hit was misparked. Me-
dina never received any discipline, or an oral or written
warning, about the matter. He received his 50-cent wage in-
crease after Cessna showed him the $922 Rollins invoice,
and Cessna took no subsequent steps to cut Medina’s pay.21
He was never asked to pay the $922 which Rollins had billed
Respondent for repairing the tractor; it is not Respondent’s
practice to require drivers to pay for the cost of repairing
damage they may have caused to equipment.
As to the parking-ticket incident, the credible evidence
shows as follows: Respondent requires drivers to report to
management any traffic tickets which they receive. On July
6, 1995, Cessna received from Rollins an invoice for a $25
parking ticket which had been issued on June 8, by the City
of Elk Grove, in connection with a tractor being driven that
day by Medina.22 This was the first information that Cessna
had received about this ticket. When Cessna talked to Me-
dina about the matter, Medina said that he could not remem-
ber getting such a ticket, and offered to pay for it.23 Re-
spondent does not have a practice of requiring drivers to pay
parking tickets that are issued to their vehicles. Cessna told
Medina not to worry about the ticket, ‘‘we’ll take care of
it.’’ Medina’s 50-cent wage increase was approved by
Cessna on the day of this interview, and approved (inferen-
tially, after Cessna’s approval) by Fortune. Cessna testified
that he did not believe he was aware of the parking ticket
when he approved Medina’s wage increase, but that Cessna
took no steps thereafter to cut Medina’s pay. Cessna further
testified that Medina was never disciplined because of the
parking ticket.
Cessna testifed that in early May 1995 (before the tractor-
collision incident) someone (perhaps, an employee) whose
name Cessna did not recall told him that a trailer belonging
to Respondent had been damaged while Medina was pulling
it. Cessna further testified that ‘‘immediately’’ after the dam-
age was brought to his attention he took a photograph of the
damaged trailer, and that this photograph was the photograph
received into evidence as Respondent’s Exhibit 9. Although
Respondent assigns a number to each trailer and requires the
driver to record this number on his daily work report (see
Tr. 442 ll. 5–21 and G.C. Exh. 21), the foregoing evidence
is the only record evidence which may tend to show that Me-
dina was pulling the photographed trailer when it was dam-
aged. Medina’s personnel file contains no writeups in con-
nection with a damaged trailer, and Cessna testified that he
did not remember whether he gave Medina any oral dis-
cipline in connection with the damaged trailer. As discussed
supra, Cessna authorized a 50-cent hourly increase for Me-
dina several weeks after the date which Cessna testimonially
attached to his discovery of the damage to the trailer. Al-
though Cessna testified at the end of October 1996 that the
damage was ‘‘major’’ and was repaired in 1995, he testified
that he could not recall the cost of the repairs. In view of
the foregoing, particularly Cessna’s inability to recall who
told him that Medina had damaged the trailer or how much
repairing it had cost, and for demeanor reasons, I credit
Medina’s denial that he was pulling the trailer when it was
damaged, and, in addition, infer that Respondent did not hon-
estly believe that he did.
Cessna testified that on about 12 occasions after Medina’s
rehire, he failed to comply with Respondent’s requirement
that he call Respondent after each delivery. I credit Medina’s
testimony that he invariably made such calls, for demeanor
reasons, in view of Cessna’s untruthfulness in connection
with the damaged trailer, and because there is no evidence
that anyone said anything to Medina about the matter.
C. Aftermath
Immediately after the July 21, 1995, issuance of the initial
tally, which showed that two more of the counted ballots had
been cast for the Union than against it, company counsel told
Respondent’s management (Mikula, Fortune, Cessna, and
Osorio) that ‘‘it wasn’t over yet.’’ On November 3, 1995, the
Board directed the Regional Director to open and count the
two challenged ballots. The final tally was issued on Decem-
ber 1, 1995, and showed that the Union had lost the election
by a tie vote.
D. Analysis and Conclusions
1. The alleged preelection unfair labor practices
In agreement with the General Counsel, I find that Re-
spondent violated Section 8(a)(1) of the Act when Supervisor
Osorio told employee Pedro Medina that Osorio knew when
the union meetings were being held and who was there, and
added credence to this statement by accurately telling Me-
dina that Medina had been among those present. NLRB v. Q-
1 Motor Express, 25 F.3d 473, 477 (7th Cir. 1994), cert. de-
nied 115 S.Ct. 729 (1995); Hertz Corp., 316 NLRB 672, 685
(1995); Bert Wolfe Ford, 239 NLRB 555, 564 (1978). In
finding that such statements tended to interfere with and co-
erce employees in the exercise of their statutory right to
(inter alia) attend union meetings, I note that Medina re-
sponded by untruthfully denying that the meeting was a
union meeting. Osorio’s remarks were not rendered lawful by
the absence of evidence that Respondent had in fact engaged
in surveillance. Flexsteel Industries, 311 NLRB 257 (1993).
Moreover, I agree with the General Counsel that Respondent
further violated Section 8(a)(1) when, after employee Alva-
rado untruthfully disavowed to Osorio any interest in the
Union, he told her that Respondent could help her to fulfil
her expressed desire to buy a house—a remark which, in
context, constituted an offer of benefit if she continued her
perceived failure to support the Union and, accordingly, vio-
lated Section 8(a)(1). K.G. Knitting Mills, 320 NLRB 374,
374 fn. 4, 378 (1995); Frank Leta Honda, 321 NLRB 482,
489 (1996).
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27EXCEL CONTAINER, INC.
24 Thus, as shown infra, Respondent discriminatorily discharged
two employees shortly after the election. Moreover, as previously
noted, before the election Respondent offered an employee benefits
if she continued her perceived failure to support the Union, gave an
employee the impression of surveillance over union meetings, and
unlawfully interrogated employees about their union activity.
25 NLRB v. Transportation Management Corp., 462 U.S. 393, 398–
403 (1983); NLRB v. Advance Transportation Co., 979 F.2d 569,
573 (7th Cir. 1992); NLRB v. Advance Transportation Co., 965 F.2d
186, 190–191 (7th Cir. 1992); NLRB v. Bestway Trucking, Inc., 22
F.3d 177, 180 (7th Cir. 1994); KNTV, Inc., 319 NLRB 447, 452
(1995); Manno Electric., 321 NLRB 278, 280 fn. 12 (1996).
In addition, I find that Respondent violated Section 8(a)(1)
when Osorio asked employee Pedro Medina how things were
going with the Union and the meetings, and asked employee
Alvarado what she knew about the Union and whether she
had gone to a union meeting. In so finding, I rely on the fact
that the subject of the Union was brought up by Osorio and
not the employees, that both employees untruthfully dis-
avowed knowledge of the Union, that Alvarado untruthfully
denied attending any union meetings, that Respondent later
discharged two employees for their union activity and ef-
fected reprisals against all the employees because a majority
of the ballots initially opened had favored the Union (see
infra), that no legitimate reason for these inquiries was ten-
dered to the employees or appears in the record, and that
Osorio (far from assuring the employee that union activity
would not affect how Respondent treated them) implied to
Alvarado that Respondent would help her to buy a house if
she continued in her alleged lack of interest in the Union.
See Central Transport, Inc. v. NLRB, 997 F.2d 1180, 1189–
1190 (7th Cir. 1993); NLRB v. Shelby Memorial Hospital
Assn., 1 F.3d 550, 559–560 (7th Cir. 1993); Williamhouse of
California, 317 NLRB 699, 713 (1995); and Union National
Bank of Pittsburgh, 276 NLRB 84, 87–88 (1985).
2. The alleged postelection unfair labor practices
a. Changes in working conditions
The record shows that Respondent disliked the Union and
did not want it to organize the shop.24 Moreover, imme-
diately after the initial tally, which indicated that the Union
had won the election, Respondent announced a new work
rule which forbade the consumption of food and beverages
at the employees’ machines, and also announced the effec-
tuation of a new buzzer system which had the effect of limit-
ing the employees’ wash-up time to 2 minutes under cir-
cumstances where they would previously have begun wash-
ing up some time earlier. Furthermore, when the employees
went to the lunchroom to eat lunch later that morning, they
discovered that Respondent had eliminated certain amenities
which had previously been afforded to them. More specifi-
cally, the air-conditioner had been rendered inoperative (it
was late July), the telephone directly outside the lunchroom
had been removed, and the coffee makers from which em-
ployees had been able to obtain free coffee had been re-
moved.
Particularly noteworthy is the fact that Respondent took all
of these actions within 3-1/2 hours after the announcement
of the initial tally in the representation election. ‘‘Timing
alone may suggest anti-union animus as a motivating factor
in an employer’s action.’’ NLRB v. Rain-Ware, Inc., 732
F.2d 1349, 1354 (7th Cir. 1984). Indeed, even considered in-
dividually, the timing of some of such actions is difficult to
reconcile with the lawful explanations tendered therefor by
Respondent. Thus, the new telephone instrument was not in-
stalled until at least 6 weeks after the old one had been re-
moved, even though (so far as Fortune knew) the old tele-
phone instrument had been perfectly adequate for the pur-
pose of making outgoing calls, which was its sole utility to
the employees and was a convenience for management.
Moreover, as to the coffee makers, Respondent does not con-
tend, nor does the evidence show, that the coffee-vending
machine was operable when Fortune discarded one of the
coffee pots which had been making coffee until and during
the election. Furthermore, as to the buzzer system, Respond-
ent’s own witnesses gave mutually and internally contradic-
tory testimony as to when (if ever) Fortune was advised, be-
fore buying a new one at an undisclosed time some weeks
or months later, that the system acquired from Monarch ap-
peared to have been rendered usable.
Likewise tending to show that Respondent’s actions were
unlawfully motivated is the falsity or improbability of Re-
spondent’s tendered explanations therefor. Thus, Respondent
contended that Fortune discarded one of the coffee pots be-
cause it was inoperable, and that the knob and cover had
been removed from the air-conditioner in preparation for its
removal for the purposes of repair. However, free coffee had
(as usual) been available in the lunchroom that morning, be-
fore the election tally had been announced, and the air-condi-
tioner had been producing cold air during the lunch period
on the day preceding the election. Furthermore, at no point
did mechanic Smith or anyone else testify that the air-condi-
tioner broke down on July 21, the day of the election. Also,
forbidding employees to continue eating or drinking at their
machines appears to be a rather extreme reaction to finding
cups and broken bottles in the work area on three occasions
in about 7 months. In addition, much of Respondent’s own
testimony is inconsistent with any contention that Fortune
believed a workable buzzer system had finally been put into
place shortly before he announced the effectuation of a buzz-
er system; and any professed desire by Respondent to enable
the employees to know when to start and when to stop work
is difficult to reconcile with Respondent’s action, on the very
day that Fortune announced the buzzer system, in discarding
a usable wall clock which had hung in the lunchroom and
which obviously assisted employees in judging when to re-
turn from lunch and breaks.
In short, the evidence preponderantly shows that in install-
ing a buzzer system which had the effect of limiting wash-
up time, in forbidding employees to eat or drink at their ma-
chines, in shutting down the lunchroom air-conditioner, in
withdrawing the privilege of free coffee, and in removing the
telephone outside the lunchroom door, Respondent was moti-
vated, at least in part, by the Union’s seeming election vic-
tory earlier that morning. Accordingly, such conduct violated
Section 8(a)(1) and (3) unless Respondent shows, by a pre-
ponderance of the evidence, that Respondent would have
taken such action regardless of the tally.25 Repondent has
failed to make such a showing. More specifically, Respond-
ent has failed to show, by a preponderance of the evidence,
that even in the absence of the Union’s seeming election vic-
tory, (1) the telephone would have been removed on July 21,
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28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 The complaint does not allege, nor does the General Counsel
appear to contend, that Respondent violated Sec. 8(a)(1) by creating
the impression that the removal of the microwave was motivated by
the election tally.
although it could still be used for outgoing calls and was not
replaced for at least 6 weeks; (2) the air-conditioner would
have been inoperable because it broke down that day; (3) the
coffee pots would have been removed and/or discarded on
that day, even though they were still usable and the record
fails to show the availability on that day of even vending-
machine coffee; (4) the buzzer system would have been put
into effect the following week, and would have reduced
wash-up time to 2 minutes; and (5) employees would have
been forbidden to drink beverages or eat at their machines,
on the strength of a single recent incident of two broken bot-
tles near a machine. It is true that the evidence regarding the
buzzer system may indicate that eventually, Respondent
would have put a buzzer system into effect. Also, the evi-
dence as the coffee-vending machine suggests that perhaps,
Respondent would eventually have withdrawn the free coffee
privileges. However, the statute forbids the acceleration of
changes in employment, where such acceleration is unlaw-
fully motivated; see Matson Terminals., 321 NLRB 879
(1996); Rain-Ware, supra, 732 F.2d at 1354. In any event,
the evidence does not establish that Respondent would have
adjusted its buzzer system so as to decrease its employees’
wash-up time to 2 minutes if Respondent had installed that
system at a time, and in a manner, unaffected by the employ-
ees’ union activities; nor does the evidence show that Re-
spondent would have withdrawn all free coffee privileges on
the activation of the coffee-vending machine.
For the foregoing reasons, I do not credit Fortune’s denial
that he took such action to penalize the employees for seek-
ing representation by the Union. See NLRB v Walton Mfg.
Co., 369 U.S. 404, 406–408 (1962). Rather, I find that by
effecting such changes in employee working conditions, Re-
spondent violated Section 8(a)(1) and (3) of the Act. Re-
spondent’s contention that some of these retaliatory changes
were relatively trivial, even if true, does not constitute a legal
defense thereto, particularly because their synchronization
emphasized to the employees Respondent’s inclination and
power to retaliate against employees with respect to union-
ization. Moreover, Respondent somewhat understates the se-
riousness of such acts even when considered individually.
Thus, the eventual availability of coffee-vending machine is
hardly the equivalent of continuously available free coffee.
Further, the absence of a lunchroom telephone over a period
of weeks or months is not wholly compensated for by either
the presence of a die-room telephone whose location ren-
dered it less convenient for use during breaks restricted to 15
minutes and a lunch period restricted to 30 minutes, or by
the eventual replacement of the telephone instrument. Fi-
nally, the absence of an air-conditioner during about the hot-
test period in the year is hardly compensated for by its res-
toration at a time when the weather would likely have started
to cool off a little.
However, the General Counsel has failed preponderantly to
show that Respondent violated Section 8(a)(1) and (3) when
Osorio removed from the lunchroom the microwave oven
owned by him. As to this kind of unfair labor practice alle-
gation, a critical issue is the motive for the action in ques-
tion.26 As to the microwave oven removal, the record fails
to show what Osorio’s motive was. The only record evidence
which even arguably draws into question the testimony that
management never told him to remove the oven is the fact
that its removal coincided in time with retaliatory actions by
management some of which, like the oven removal, ad-
versely affected the lunchroom amenities. I regard this tem-
poral coincidence as unsufficient to support an inference that
Osorio removed his oven pursuant to higher management’s
instructions. Nor do I infer that Osorio acted out of personal
dislike for the Union, particularly in view of his avowed dis-
agreement with higher management’s decision to discharge
Cardenas Ortega for union activity. Accordingly, I need not
and do not consider whether such a motive would be attrib-
utable to Respondent. I note that there is no evidence that
Osorio left the microwave oven in the lunchroom for pur-
poses other than personal convenience. As to the microwave
oven, the complaint will be dismissed.
b. The allegedly discriminatory discharges
The credible, and largely undisputed, evidence shows that
Respondent disliked the Union; that Respondent claimed
knowledge of which employees had attended union meetings;
and that such meetings had been attended by Cardenas Or-
tega and by Pete Medina. Further, the evidence shows that
about 2 weeks before Cardenas Ortega was discharged, For-
tune had complimented the work of the three-man crew
which included Cardenas Ortega; that Cardenas Ortega had
always kept up with the Flexo machine and had never been
criticized about his work; that Supervisor Cessna had told
Medina when he was rehired in May 1995 that he would be
paid 50 cents an hour more than he had received during his
previous tour of duty with Respondent because Cessna had
been happy with his work; and that before Medina had com-
pleted his probationary period, and less than a month before
he was discharged, he received a second 50-cent increase
which had been recommended by Cessna and approved by
Fortune. Further, the evidence shows that Cardenas Ortega
was discharged on the day of the July 21 election and Re-
spondent’s retaliatory acts against all of its employees; and
that during his discharge interview, Osorio said that he was
really sorry about Cardenas Ortega’s discharge and, in re-
sponse to his comment that his work had recently been com-
plimented by Fortune, volunteered that Cardenas Ortega had
been one of the people who had worked for the Union—a
remark which approached, if indeed it did not constitute, an
admission that such union activity was the real reason for his
discharge. Finally, when effecting the July 28 discharge of
Medina, which according to Cessna had been delayed for a
week pending the return from vacation of Respondent’s only
other driver, Cessna said that he was happy with Medina’s
work and did not want him to be discharged.
The General Counsel’s contention that these discharges
were discriminatorily motivated gains further support from
the evidence showing that the reasons which Respondent
tenders therefor are false. Thus, although Cessna’s memoran-
dum in Medina’s personnel file states that Medina was dis-
charged partly because he damaged two trailers he was haul-
ing, as to one of these incidents Respondent offered no evi-
dence whatever; and as to the other, the evidence shows that
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29EXCEL CONTAINER, INC.
Medina was not hauling the trailer when it was damaged and
Respondent did not honestly believe that he was. Further, al-
though Cessna told Medina during his discharge interview
that he was being discharged because he had been seen over
in his house, two blocks from Respondent’s plant, it is
uncontradicted that he explained to Cessna that Medina had
gone to his house to eat his lunch, and that Cessna had given
him permission to do so on a previous occasion. Further, al-
though Respondent contends that Medina was discharged
partly for having damaged a Rollins tractor when he was
driving it in Rollins’ parking lot, and had failed to report this
incident when it occurred, the evidence shows that he had in
fact immediately reported the collision to which Respondent
now chooses to attach the damage to the tractor; that the
damage in question had been effected before Medina’s first
tour of duty with Respondent, and had been repeatedly re-
ported to Respondent some weeks before the collision; that
Medina received a merit wage increase after Respondent
learned about this incident; and that Medina continued to re-
ceive his new wage rate until his discharge 4 weeks later.
Also, although Respondent contends that Medina was dis-
charged partly for failure to report his having been given a
parking ticket, when first finding out about the parking ticket
Respondent told him to ‘‘forget it’’ after receiving his rep-
resentation that he had not known that he had been ticketed,
and made no effort to rescind the wage increase which
Cessna approved on the day he learned about the parking
ticket. Moreover, although Fortune’s prehearing affidavit
states that Medina was discharged partly for being quite late
one time, Fortune testimonially disavowed tardiness as a rea-
son for Medina’s discharge, and Cessna testified that the dis-
charge decision was made before this incident allegedly oc-
curred. Further, although Respondent contends that Medina
was discharged partly because he repeatedly failed to call in
at the end of the day, he was never written up for such al-
leged conduct, and the credible evidence shows that Medina
in fact called in after making each delivery. Finally, although
Respondent contends that Cardenas Ortega was discharged
because he stacked bundled cartons at a rate too slow to keep
up with the Flexo machine, the credible evidence shows that
he in fact kept up with that machine. ‘‘False defenses be-
come a two-edged sword in that they may serve to support
an ultimate inference of unlawful motive.’’ Western Plant
Services, 322 NLRB 183 (1996); see, also, Whitesville Mill
Service Co., 307 NLRB 937 (1992); and Triple H. Electric
Co., 323 NLRB 549 fn. 2 (1997). I do not credit Fortune’s
testimony that he was unaware of Pete Medina’s and
Cardenas Ortega’s union activity, in view of Osorio’s state-
ment to Pedro Medina that Osorio knew who was attending
meetings; in view of Osorio’s statements during Cardenas
Ortega’s discharge interview (more specifically, Osorio’s ref-
erence to Cardenas Ortega’s union activity upon his ref-
erence to Fortune’s having recently complimented the work
of Cardenas Ortega’s crew); in view of the fact that the bilin-
gual Osorio reported directly to Fortune and (because For-
tune and the employees speak different languages) likely
gave him more information about the employees than would
be expected in a wholly English-speaking setting; in view of
Fortune’s internally inconsistent testimony as to other mat-
ters; and for demeanor reasons. See NLRB v. Walton Mfg.
Co., supra at 408.
The General Counsel’s contention that Medina was dis-
charged at least partly for unlawful reasons is further sup-
ported by the inconsistencies in Respondent’s position as to
the surrounding circumstances. Thus, Fortune’s prehearing
affidavit states that management’s decision to discharge Me-
dina was made on July 28, 1995, which was the last day Me-
dina worked for Respondent, and that it was Cessna who se-
lected July 28 as the discharge date. However, Cessna testi-
fied, and Respondent’s brief states (p. 32), that the decision
to discharge Medina was made about a couple of weeks be-
fore July 28, and that he was kept on because Respondent’s
only other driver was on vacation during the week which
ended on July 28. Further, Fortune testified that it was he
who decided to terminate Medina and that Fortune made this
decision on Cessna’s advice, whereas Cessna, on the other
hand, testified that it was he who made the determination to
discharge Medina, and that it was he and Fortune who de-
cided on the date of Medina’s discharge. Fortune testified
that tardiness was not a part of the decision to terminate Me-
dina, but Fortune’s prehearing affidavit states that Medina
was fired partly because ‘‘he was quite late one time’’ and
Cessna testified that Medina was discharged partly for report-
ing to work late. Cessna testified, in effect, that Medina was
discharged partly because of his attendance, but Fortune tes-
tified that attendance was not a factor in the decision to ter-
minate Medina. Fortune testified that Medina was not dis-
charged for failing to call in when he would be absent; but
Cessna testified that Medina was discharged partly for engag-
ing in such conduct. Finally, although Fortune testified that
the July 28 memorandum reflects all the reasons for
Medina’s discharge, and the memorandum refers solely to ‘‘2
trailer damage incidents,’’ ‘‘a bill for tractor damage from
Rollins,’’ and the parking ticket, Respondent has (as shown)
given a number of other reasons for Medina’s discharge.
These inconsistencies in management’s testimony about who
decided on Medina’s discharge and on its date and when that
decision was made, and management’s inconsistent and shift-
ing explanations for that decision, further support the infer-
ence that his discharge was unlawfully motivated. Scientific
Ecology Group, 317 NLRB 1259 (1995); P*I*E Nationwide,
282 NLRB 1060, 1065 (1987), enfd. 894 F.2d 887 (7th Cir.
1990); Laidlaw Transit, Inc., 315 NLRB 509, 512 (1994);
and Trader Horn of New Jersey, 316 NLRB 194, 199 (1995).
For the foregoing reasons, I conclude that the evidence
preponderantly shows that Respondent discharged Cardenas
Ortega and Pete Medina at least partly because of their union
activity; and I do not credit Fortune’s testimony otherwise.
Accordingly, these discharges violated Section 8(a)(1) and
(3) unless Respondent has shown, by a preponderance of the
evidence, that the employees would have been discharged
even in the absence of their union activity. See the cases
cited supra at fn. 25. Respondent has failed to make such a
showing. Because the legitimate reasons discussed above
were merely pretextual, such reasons cannot serve to meet
Respondent’s burden. T & J Trucking Co., 316 NLRB 771
(1995). Although Fortune did testify that Medina was dis-
charged partly because he failed to call in when a customer
delayed in accepting a delivery, Cessna did not so testify,
and there is no other evidence as to this matter. Accordingly,
I find that Respondent has not met its burden, and that the
discharge of Cardenas Ortega and Pete Medina violated Sec-
tion 8(a)(1) and (3) of the Act.
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30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 The discriminatees are to be offered reinstatement as non-
probationary employees. Gulf States United Telephone Co., 253
NLRB 603, 603 fn. 2, 608 fn. 17 (1980), enfd. 694 F.2d 92 (5th
Cir. 1982). On the expiration of Medina’s probationary period and
Cardenas Ortega’s allegedly extended probationary period, during
which they were unlawfully discharged, each of them would have
received a 50-cent hourly increase and become eligible for certain
fringe benefits. Accordingly, such increases and new benefits are to
be included in their gross backpay. Notwithstanding the cir-
cumstances surrounding Respondent’s alleged June 26, 1995, exten-
sion of Cardenas Ortega’s probationary period from July 5, 1995, to
October 5, 1995, the General Counsel does not appear to claim that
his backpay and benefits following his unlawful July 21, 1995, dis-
charge should be calculated as if his probationary period had ended
on July 5, or that he should receive any backpay for the period be-
tween July 5 and his discharge.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act,
through Supervisor Juan Osorio, by giving employees the im-
pression of surveillance over union meetings, by offering
benefits to employee Avelina Alvarado if she continued her
perceived failure to support the Union, and by interrogating
employees Alvarado and Pedro Medina about the Union.
4. Respondent has violated Section 8(a)(1) and (3) of the
Act by engaging in the following conduct:
(a) Forbidding the consumption of food and beverages at
the employees’ machines.
(b) Installing a buzzer system which had the effect of cur-
tailing employees’ wash-up time.
(c) Ceasing the use of air-conditioning in the employees’
lunchroom.
(d) Removing the telephone instrument outside the em-
ployees’ lunchroom.
(e) Removing coffee makers from the employee lunch-
room from which employees could obtain free coffee.
(f) Discharging Guadalupe Cardenas Ortega and Pete Me-
dina.
5. The unfair labor practices described in Conclusions of
Law 3 and 4 affect commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondent has not violated the Act by removing a
microwave oven from the employee lunchroom.
THE REMEDY
Having found that Respondent has violated the Act in cer-
tain respects, I shall recommend that Respondent be required
to cease and desist from such conduct, or like and related
conduct, and to take certain affirmative action necessary to
effectuate the policies of the Act. Thus, Respondent will be
required to resume providing free coffee to the employees,
to the same extent that such coffee had been provided before
July 21, 1995; to offer Cardenas Ortega and Pete Medina re-
instatement to their former positions or, if no such positions
exist, to substantially equivalent positions; to make the em-
ployees whole for any losses they may have suffered by rea-
son of their failure to receive free coffee; and to make
Cardenas Ortega and Pete Medina whole for any loss of pay
and other benefits they may have suffered by reason of the
discrimination against them.27 Backpay is to be calculated as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
Interest is to be paid on the sums due under this Order, as
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Also, Respondent will be required to expunge
from its records all references to Cardenas Ortega’s and Pete
Medina’s unlawful termination, including, without limitation,
the document dated June 26, 1995, which purports to extend
Cardenas Ortega’s probationary period (G.C. Exh. 9); the
document dated June 30, 1995, purporting to constitute a per-
formance review as to Cardenas Ortega (G.C. Exh. 10); his
status report dated July 21, 1995 (G.C. Exh. 11); the docu-
ment dated July 24, 1995, purporting to deal with his dis-
charge (G.C. Exh. 12); the invoice dated June 28, 1995, from
Rollins Truck Rental/Leasing, to the extent that it names Pete
Medina (G.C. Exh. 18); and the status/payroll change report
and attachment as to Pete Medina dated July 28, 1995 (G.C.
Exh. 23). Further, Respondent will be required to notify
these employees in writing (in English and Spanish) that this
has been done and that the actions and matters reflected in
these documents will not be used against them in any way.
Also, Respondent will be required to post appropriate no-
tices in English and in Spanish. In Indian Hills Care Center,
321 NLRB 144 (1996), the Board modified its standard no-
tice-posting order by adding a provision for mailing of no-
tices if the facility were closed down, and without regard to
whether the record showed that the facility had in fact closed
down. This notice-mailing requirement is reflected in para-
graph 2(i) of my recommended Order. In Indian Hills, if the
facility were to be closed down, notices were to be sent to
all employees who had worked for the respondent employer
at any time since a particular date (specified in the Order)
which was subsequent to the commission of the unfair labor
practices found and whose inclusion in the Order is unex-
plained in the Board’s Decision. In Quebecor Printing
Dickson, Inc., 323 NLRB 137 (1997), which found unfair
labor practices on November 3 and 8, 1995, the Board issued
an Order which called for mailing notices (if the facility
closed) at any time since November 9, 1995, ‘‘which was the
date that the Union filed the instant unfair labor practice
charge’’; no other charges had been filed. Because the first
charge filed herein (filed on July 25, 1995) attacked the dis-
charge of Cardenas Ortega and I have found it to be unlaw-
ful, selection of that date as a trigger to notice-mailing obli-
gations would be administratively easy in the instant case.
However, in procedurally different cases, selection of the
triggering date might be complicated if the complaint allega-
tions generated by the initial charge had been dismissed, if
all of the charges had been filed before the occurrence of the
unfair labor practices found, or if it is unclear which of sev-
eral charges was the first to generate a sustained complaint
allegation; cf. NLRB v. Fant Milling Co., 360 U.S. 301
(1959). Because the purpose of the notice is to counteract the
effect of unfair labor practices on the employees who may
have been exposed thereto, I conclude that the triggering date
should be the date that the unfair labor practices began—in
this case, July 17, 1995. I do not believe that the appropriate-
ness of such a policy is diminished by the fact that such a
mailed notice would reach more of the employees who may
have been exposed to unfair labor practices than would have
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31EXCEL CONTAINER, INC.
28 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.If no exceptions are filed as provided by
Section 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to
them shall be deemed waived for all purposes.
29 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 Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
been reached if the facility had still been in operation and,
therefore, the notices would have been posted. Indeed, a
good case could be made for requiring such a facility to mail
notices to exposed employees who had been separated before
notices were posted in the facility.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended28
ORDER
The Respondent, Excel Container, Inc., Aurora, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Giving employees the impression of surveillance over
meetings of Teamsters Local 714, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO.
(b) Offering benefits to employees if they continue to re-
frain from supporting Local 714.
(c) Interrogating employees about Local 714 in a manner
constituting interference, restraint, or coercion.
(d) Discouraging membership in Local 714, or any other
labor organization, by forbidding the consumption of food
and beverages at employees’ machines, by installing buzzer
systems, by curtailing employees’ wash-up time, by ceasing
the use of air-conditioners, by removing telephones, by with-
drawing the privilege of free coffee, by discharging employ-
ees, or by otherwise discriminating in regard to hire or tenure
of employment or any term or condition of employment.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Gua-
dalupe Cardenas Ortega and Pete Medina full reinstatement,
as nonprobationary employees, to their former positions or,
if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other
rights and privileges previously enjoyed.
(b) Make them whole for any loss of earnings and benefits
they may have suffered by reason of the discrimination
against them, in the manner set forth in the remedy section
of this decision.
(c) Rescind the rule which forbids employees to eat or to
drink beverages at their machines.
(d) Restore the privilege of free coffee to the employees,
in the same manner that it was available before July 21,
1995; and make employees whole for any losses they may
have suffered by reason of the withdrawal of free coffee
privileges, in the manner set forth in the remedy section of
this decision.
(e) Afford employees the same amount of paid wash-up
time which they received before July 24, 1995.
(f) Eliminate the buzzer system instituted on July 24,
1995, unless Respondent can show that such a system would
have been instituted after July 24, 1995, even in the absence
of union activity.
(g) Within 14 days from the date of this Order, remove
from its files (1) all references to the unlawful discharge of
Guadalupe Cardenas Ortega and Pete Medina; (2) the docu-
ment dated June 26, 1995, which purports to extend
Cardenas Ortega’s probationary period; (3) the document
dated June 30, 1995, purporting to constitute a performance
review as to Cardenas Ortega; (4) Cardenas Ortega’s status
report dated July 21, 1995; (5) the document dated July 24,
1995, purporting to deal with his discharge; (6) the invoice
dated June 28, 1995, from Rollins Truck Rental/Leasing, to
the extent that it names Pete Medina; and (7) the
status/payroll change report and attachment as to Pete Me-
dina dated July 28, 1995. Within 3 days thereafter, notify
these employees in writing, in Spanish and English, that this
has been done, and that the actions and matters reflected in
these documents will not be used against them in any way.
(h) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents, for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary or useful in analyzing the amount of backpay due
under the terms of this Order.
(i) Within 14 days after service by Region 13, post at its
facility in Aurora, Illinois, copies, in Spanish and English, of
the attached notice marked ‘‘Appendix.’’29 Copies of the no-
tice, on forms provided by the Regional Director for Region
13, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since July
17, 1995.
(j) 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.
Paragraph VI(a)(iv) of the complaint is dismissed.
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