Fantasia Fresh Juice Co.

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 754 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
Fantasia Fresh Juice Company and Manufacturing,
Production & Service Workers Union Local 24,
I.U.A.N.&P.W., AFL–CIO. Cases 13–CA–38526
and 13–RC–20319
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On February 12, 2001, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
General Counsel and Charging Party Union filed excep-
tions and supporting briefs and the Respondent filed an
answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
1. We do not rely on the judge’s finding that em-
ployee Ruiz “testified inconsistently” about the details of
an April 28, 2000 meeting. We affirm, however, the
judge’s ultimate determination in crediting the testimony
of the Respondent’s officials, Tom Hicks and Brad
Barnhorn, that employees at this meeting were only
asked generally if they had ever been members of a un-
ion before. In the context of the overall discussion,
which included a comparison of the Respondent’s exist-
ing benefits with those that might be found in a union
setting, we find that the General Counsel has failed to
establish that the Respondent’s query was other than rhe-
torical and noncoercive. We therefore affirm the judge’s
finding that statements made at this meeting did not vio-
late Section 8(a)(1). See generally Rossmore House, 269
NLRB 1176, 1177 (1984), affd. sub nom. Hotel Employ-
ees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
Contrary to the dissent, we have applied the proper ob-
jective standard in finding under Rossmore House that
employees would reasonably understand the noncoercive
comparative context in which the question about prior
union affiliation was posed. Furthermore, we find that
the dissent misstates Board law by suggesting that an
otherwise noncoercive interrogation under Rossmore
House is nevertheless unlawful if an employer fails to
give explicit assurance against reprisal.

1 The General Counsel and Charging Party have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Drywall 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 his findings.
2. Our dissenting colleague also challenges the failure
to find that the Respondent violated Section 8(a)(3) of
the Act by denying Simeon Henriquez reinstatement in
accord with his rights as a former economic striker. See
Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d
99 (7th Cir. 1969), cert denied 397 U.S. 920 (1969). The
General Counsel has not filed exceptions to the judge’s
express finding that this is not a Laidlaw case. In accord
with the Board’s well-settled practice, our review of the
judge’s decision is limited to the issues raised by the ex-
ceptions. See FES, 333 NLRB 66 fn. 1 (2001).2
Moreover, even assuming that the issue of a Laidlaw
violation were raised to us by exceptions, we would find
that the issue has not been fully litigated. At all times in
this proceeding, the General Counsel has argued only
that Henriquez and his fellow strikers were unfair labor
practice strikers entitled to immediate reinstatement upon
their unconditional offer to return to work. In its defense
to this allegation, the Respondent has argued only that
the strike was an economic strike and that, in any event,
Henriquez was properly denied reinstatement because of
misconduct. The judge has found that Henriquez did not
engage in misconduct but that he was an economic
striker. Both we and our dissenting colleague have af-
firmed the judge on this point. Beyond that, the Respon-
dent had no notice that it needed to present any further
defense that would justify failing to offer immediate re-
instatement to an economic striker, but would lack any
legal merit as to an unfair labor practice striker. The
issue has therefore not been fully litigated.3
Our colleague relies on Rogers Mfg. Co., 197 NLRB
1264 (1972), enfd. 486 F.2d 644 (6th Cir. 1973). How-
ever, in that case, as the court noted, the respondent “had
adequate notice of the matters in issue” and thus those
matters were “fairly tried.” That is not the case here.
ORDER
The recommended Order of the administrative law
judge is adopted, the complaint in Case 13–CA–38526 is
dismissed, and Case 13–RC–20319 is severed and re-
manded to the Regional Director for further appropriate
action in accordance with the judge’s decision.

2 We have no quarrel with our dissenting colleague’s statement that
the absence of an exception does not bar the Board’s exercise of its
remedial authority. There must, however, be an unfair labor practice to
remedy. The judge expressly found no Laidlaw violation, and the
absence of exceptions directly on point is dispositive here, even if, as
the dissent claims, the issue had been fully litigated.
3 We do not pass on the issue of whether the Respondent threatened
retaliation for use of Board processes, in violation of Sec. 8(a)(4). The
matter was neither alleged nor litigated.
335 NLRB No. 61
FANTASIA FRESH JUICE CO. 755
MEMBER LIEBMAN, dissenting in part.
I disagree with my colleagues with respect to two is-
sues and also write separately to point out a third con-
cern. First, I would find that the Respondent violated
Section 8(a)(1) of the Act during a mandatory meeting
held immediately after it received the Union’s demand.
Second, I would find that the Respondent was required to
offer reinstatement to Simeon Henriquez after the strike.
Finally, I observe that although the issue was not liti-
gated and so properly not reached by the Board, the evi-
dence suggests that the Respondent violated Section
8(a)(4) of the Act by threatening retaliation for using the
processes of the Board.
1. At the mandatory meeting, the Respondent’s presi-
dent, Tom Hicks, admittedly “asked if anybody in the
room had ever been in a union before . . . . And then I
[Hicks] went around, I said, have you ever been in a un-
ion and there was only one person that said yes.” Hicks
asked that employee about his union experience.
On the basis of the subsequent discussion, the judge
found, and my colleagues agree, that Hicks asked
whether employees had been union members solely “in
order to compare that experience with the benefits al-
ready afforded by Respondent.” Consequently, in their
view, the question was lawful.
However, in the mandatory group setting imposed by
the Respondent, Hicks’ question as to past union affilia-
tion was unlawfully coercive regardless of his intent. It
is settled law that whether an employer’s action is unlaw-
fully coercive does not depend on the employer’s motive,
but on whether the action may reasonably tend to inter-
fere with the free exercise of Section 7 rights. E.g.,
Naomi Knitting Plant, 328 NLRB 1279, 1280 (1999).
The Board has also noted that with respect to interroga-
tions on the subject of unions, questioning in a group as
opposed to individual setting may enhance the coercive
impact, “as the questions thus put every employee on the
spot.” Id.
It is also well established that an employer who inter-
rogates employees concerning union involvement or
other protected activity must give them explicit assur-
ance that no reprisal will follow their response. Multi-Ad
Services, 331 NLRB 1226, 1229 (2000); Yoshi’s Japa-
nese Restaurant & Jazz House, 330 NLRB 1339,1344–
1345 (2000); Fairprene Industrial Products Co., 292
NLRB 797, 797 (1989); Preterm, Inc., 240 NLRB 654,
656 (1979).1

1 In Seda Specialty Packing Corp., 324 NLRB 350 (1997), cited by
the Respondent, the employer gave the employees who were questioned
repeated assurances that there would be no retaliation. Id. at 352. The
case is therefore inapposite.
My colleagues, relying on Rossmore House, 269
NLRB 1176, 1177 (1984), affd. sub nom. Hotel Employ-
ees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985),
suggest that whenever an employer engages in an “oth-
erwise noncoercive” interrogation concerning employ-
ees’ union sympathies or affiliations, the Board will not
find that the failure to give an explicit assurance against
reprisal makes the interrogation unlawful. An otherwise
noncoercive interrogation might, under some circum-
stances, be lawful even absent such an assurance. How-
ever, our cases have clearly indicated that an employer
who declines to provide an assurance during an interro-
gation runs a strong risk of being found in violation of
Section 8(a)(1). E.g., Multi-Ad Services, supra; Yoshi’s
Japanese Restaurant, supra; Seda Specialty, supra at
352; Hertz Corp., 316 NLRB 672, 684 (1995); Laidlaw
Waste Systems, Inc., 305 NLRB 30, 32 (1991); Blue
Flash Express, Inc., 109 NLRB 591, 592–594 (1954).2
In any event, I do not agree that the interrogation was
“otherwise noncoercive.” Thus, omission of that assur-
ance is particularly critical here where the interrogation
occurs at a mandatory meeting; the employees interro-
gated are not already known to be union-affiliated; and
the questions asked would elicit precisely which of them
have had such affiliations. In short, even if I agreed that
the interrogation here was “otherwise noncoercive,”
which I do not, I would find it unlawful.
In this case, the Respondent admittedly summoned its
employees to a meeting and “went around” the group,
asking each employee if he had been a union member in
the past. Even if no other coercive questions were asked,
as the judge found, this question put each employee “on
the spot” while clearly communicating that the Respon-
dent strongly disapproved of unions. Moreover, the Re-
spondent gave no assurance, then or later in the discus-
sion, that employees would not suffer reprisal for their
response. Accordingly, even if the discussion continued
solely on the subject of comparative benefits, the ques-
tion tended to interfere in the exercise of Section 7 rights
and was unlawfully coercive.
2. I also cannot agree that the Respondent’s refusal to
offer reinstatement to Simeon Henriquez, after a strike,
was lawful.3
.
2 As noted in Corporate Express Delivery Systems, 332 NLRB 1522,
1531 (2000), whether the employer gave assurance against reprisal is
also a factor applied by at least two U.S. Courts of Appeals in
determining whether an interrogation is coercive. NLRB v. McCul-
lough Environmental Services, 5 F.3d 923, 928 (5th Cir. 1993); NLRB
v. Brookshire Grocery Co., 919 F.3d 359, 366 (5th Cir. 1990)
3 I agree with my colleagues that, for the reasons stated by the judge,
the strike was not an unfair labor practice strike. Like my colleagues, I
also do not rely on the judge’s finding that David Ruiz’s testimony
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756
Henriquez was permanently replaced during the strike
and later denied reinstatement on the ground that during
the strike he allegedly lifted a rock and made as if to
throw it through the plant manager’s windshield. The
judge, however, specifically found from the credited evi-
dence that the rock incident “never happened.” Under
well-established law, the employer was consequently
required to offer Henriquez reinstatement when a suitable
vacancy occurred. Baddour, Inc., 303 NLRB 275
(1991); Laidlaw Corp., 171 NLRB 1366 (1968), enfd.
414 F.2d 99 (7th Cir. 1969), cert denied 397 U.S. 920
(1969).
In the judge’s view, however, “[t]his is not a Laidlaw
case” because the General Counsel had alleged that the
strike was an unfair labor practice strike, rather than an
economic strike to which Laidlaw rights apply, and
sought reinstatement for the strikers only on that prem-
ise. My colleagues agree with the judge that the Board is
consequently barred from imposing a Laidlaw remedy.
In my view, however, there is no such bar. While the
General Counsel has final authority over issuing and
prosecuting complaints before the Board, the Board may
find and remedy a violation not specifically alleged
where the issue is closely connected to the complaint’s
subject matter and has been fully litigated. Frito Co. v.
NLRB, 330 F.2d 458, 463–465 (9th Cir. 1964); Perga-
ment United Sales, 296 NLRB 333, 334–335 (1989),
enfd. 920 F.2d 130, 134–137 (2d Cir. 1990).
This includes situations where the litigated facts sup-
port a violation under a different section of the Act than
that alleged in the complaint. Pergament, 296 NLRB at
334 fn. 6 (8(a)(4) refusal to hire found although only
8(a)(3) violation alleged); AMC Air Conditioning, 232
NLRB 283, 285–286 and fn. 11 (1977) (an 8(a)(1) dis-
charge found although only an 8(a)(3) violation alleged);
Hughes Tool Co., 147 NLRB 1573, 1576–1577 (1964)
(8(b)(2) and (3) refusal to process grievances found al-
though only 8(b)(1)(A) violation alleged). It also in-
cludes situations where the litigated facts support an al-
ternative theory of violation that is more limited than that
plead but is encompassed within the complaint’s broader
theory. Oklahoma Fixture Co., 333 NLRB 804, 809
(2001)(finding that employer was bound to a series of
year-to-year renewals of 1975 multiemployer master
agreement, notwithstanding that the General Counsel
alleged broader theory that the employer was bound not
only to terms of the 1975 agreement, but to a series of
successor master agreements, through one negotiated in
1994).

concerning the meeting at which Hicks questioned employees was
“inconsistent.”
Indeed, the Board, with court approval, has specifi-
cally applied this principle to find that a respondent em-
ployer unlawfully delayed reinstating strikers as eco-
nomic strikers, even though the complaint only alleged
discrimination against them as unfair labor practice strik-
ers. Rogers Mfg. Co., 197 NLRB 1264, 1269 (1972),
enfd. 486 F.2d 644, 648 (6th Cir. 1973), cert. denied 416
U.S. 937 (1974). As the court of appeals stated in up-
holding the Board’s decision, “‘the Board has an obliga-
tion to decide material issues which have been fairly
tried by the parties even though they have not been spe-
cifically pleaded.’” 486 F.2d at 648 (citations omitted).
Here, consistent with the above precedent, I find, based
on the litigated facts, that the Respondent unlawfully
failed to reinstate Henriquez as an economic striker under
Laidlaw. Although the General Counsel did not allege this
theory, and asserted only that Henriquez was an unfair
labor striker, as in Rogers the material facts were litigated
and clearly support a violation under a lesser included
Laidlaw theory. Thus, the credited evidence established
that there was a job opening and that Respondent lacked a
basis to deny reinstatement to Henriquez.
My colleagues note that the General Counsel’s excep-
tions did not include the issue of Henriquez’ right of re-
instatement based on his being an economic striker.
However, the absence of an exception directly on point is
not dispositive here. It is well established that the Board
has “full authority over the remedial aspects of our deci-
sions.” Allied General Services, 329 NLRB 568, 569
(1999); Schnadig Corp., 265 NLRB 147, 147 (1982).
Indeed, we have specifically stated that “remedial mat-
ters are traditionally within the Board’s province and
may be addressed by the Board in the absence of excep-
tions.” Indian Hills Care Center, 321 NLRB 144 fn. 3
(1996). Here, as in Schnadig Corp., it is clear that “the
Respondent’s unlawful conduct directly affected” Henri-
quez, and there is “no reason why we should not afford a
remedy to any employees victimized by Respondent’s
unlawful conduct.” 265 NLRB at 147–148. Like other
cases that turn on the scope of exceptions, FES, 333
NLRB, supra (2001), cited by my colleagues, did not
involve a remedial order but rather potential defenses—
i.e., unlitigated fact and legal issues of threshold liabil-
ity—that the respondent might have, but did not, raise.
My colleagues also assert that the Respondent was
given no notice of any need to present a “further defense
that would justify failing to offer immediate reinstate-
ment to an economic striker, but would lack any legal
merit as to an unfair labor practice striker.” They pre-
sumably refer to an opportunity for the Respondent to
show that there was no job opening for Henriquez in his
capacity as an economic striker. That issue is academic,
FANTASIA FRESH JUICE CO. 757
however, because the evidence on record and the Re-
spondent’s own admissions clearly establish that there
was an opening for him. The Respondent, by its own
admission, “continued to grow rapidly during the strike,
and “[f]ollowing the strike [i.e., as of June 7, 2000]” it
had 17 employees in the unit. Further, the judge found,
on May 31 the Respondent increased its projected imme-
diate personnel requirements from 20 to 24 employees,
effectively creating a total of seven vacant positions.
Through July 10, the Respondent rehired five of the
seven strikers it had permanently replaced, leaving two
vacancies. In its brief, the Respondent states that these
two positions did not go to the two remaining strikers on
the alleged grounds that one had disappeared and the
other (Henriquez) engaged in “strike misconduct”—
which, as noted above, the judge found to be false. As in
Allied General Services, “no material facts bearing on the
appropriateness” of the remedial order to which Henri-
quez is entitled are unestablished. 329 NLRB 568 at
570.
Contrary to my colleagues’ assertion, therefore, find-
ing a Laidlaw violation would not deny the Respondent
due process. Accordingly, consistent with the record
evidence and the Board and court precedent cited above,
I would find the violation.
3. Finally, while I agree with my colleagues that the
Respondent did not violate Section 8(a)(1) by warning
employees of the consequences of a union-led strike, I
feel obliged to point out an apparent violation that was
not litigated here.
The warning to employees was included in a written
statement that was read aloud to employees at a manda-
tory meeting. In a preceding paragraph of the same
statement, the Respondent stated as follows:

If we can’t get 6 votes, then this matter could continue
on for months. The NLRB would have to rule on the
challenged ballots and then the unfair labor practice
charges. All this litigation would make it much more
difficult to operate and service our customers over the
summer. Obviously this would also impact the job se-
curity of everyone working at the facility.” [Emphasis
added.]

This paragraph would seem to be a threat of retaliation for
using the processes of the Board and consequently a viola-
tion of Section 8(a)(4).
I do not believe that the Board condones such a threat
here. The complaint allegations and the General Coun-
sel’s contentions at trial concerning the Respondent’s
statement were specifically confined to the warning of
the consequences of a strike. Accordingly, although the
above-quoted passage was included in the record, it was
never put at issue in the case and the Respondent was
given no opportunity to defend its legality. The Board
therefore correctly does not address this issue.

Mary F. Herrmann, Esq., and J. Edward Castillo, Esq., for the
General Counsel.
Jeffrey C. Kauffman, Esq., and Joshua R. Van Kampen, Esq.
(Seyfarth Shaw), of Chicago, Illinois, for the Respondent-
Employer.
John F. Ward, Esq,. and David A. Iammartino, Esq. (Carmell
Charone Widmer Mathews & Moss), of Chicago, Illinois,
for the Charging Party-Petitioner.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge.
Shortly after Charging Party Manufacturing, Production &
Service Workers Union Local No. 24, I.U.A.N. & P.W., AFL–
CIO (Union), began to organize the employees of Respondent
Fantasia Fresh Juice Company, the complaint alleges, Respon-
dent began a campaign to find out, threaten, and promise wage
increases to those involved in union activities, in violation of
the National Labor Relations Act, 1947, as amended, 29 U.S.C.
Sec. 151 et seq. The employees then decided to strike and did
so, allegedly in protest of these unfair labor practices. Respon-
dent permanently replaced them. When their strike failed, they
sought reinstatement; but Respondent refused to do so immedi-
ately, again, the complaint alleges, in violation of the Act. In-
deed, because Respondent’s violations were so serious, the
complaint requests a bargaining order under the authority of
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Respondent
denies that it violated the Act in any manner.1 It also denies that
it committed any objectionable conduct that would warrant the
setting aside of the Board-conducted election that was held on
June 2, 2000.2
At all material times, Respondent, an Illinois corporation, with
an office and place of business located in Rosemont, Illinois, has
been engaged in the manufacturing and distribution of freshly
squeezed juices, smoothies,3 and nutritional drinks. During 1999
Respondent derived gross revenues in excess of $500,000 and
purchased and received at its facility goods valued in excess of
$50,000 directly from points located outside Illinois. I conclude
that Respondent has been an employer engaged in commerce
within the meaning of Sections 2(2), (6), and (7) of the Act. I also
conclude that the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
The witnesses could agree on almost nothing, not even on
when the Union made a demand for recognition. Mark Spano, the
secretary-treasurer and organizing director of the Central States
Joint Board, which oversees the Union, testified that his first call
to Respondent was on April 28, whereas Brad Barnhorn, Re-
spondent’s CEO, testified that Spano first called on April 24.

1 This case was tried in Chicago, Illinois on September 11–14, 2000.
The charge was filed by the Union on May 2, 2000, and amended on
May 9 and June 9, 2000. The complaint issued on June 28, 2000.
2 All dates are in 2000, unless otherwise indicated.
3 Smoothies are whole fruit drinks—strawberries, bananas, fresh
squeezed orange juice, apple juice—blended together and packaged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758
Barnhorn’s narration seems more probable. In early April em-
ployee Armando Ortiz first contacted union organizer—Business
Agent Horacio Vazquez and met with him on Friday, April 21,
together with two other employees, Ricky Gonzales and Adal-
berto Zacarias, during which meeting the three signed authoriza-
tion cards. Vazquez gave Ortiz blank cards, which he had signed
by all except one of the remaining production employees: four
employees the next day, April 22, Brooks, Lorenzo Silva,
Simeon Henriquez, and David Ruiz; and two employees on
Monday, April 24, Howard Jones and Gamaliel Alameda. What
followed is in dispute. Vazquez testified that he and John
McDonough, another business agent, met on Wednesday, April
26, with the production employees, all except Brooks, who had
signed a card, and Thai Vu, who had not, and that they discussed
employee problems and concerns with Respondent, union bene-
fits, and other union-related business.
Despite the fact that Ortiz was at that meeting, Vazquez testi-
fied that he did not receive the six cards until Friday, April 28,
after which he and McDonough gave them to Spano; and on
that day, before noon, Spano called Respondent and spoke to
Barnhorn, informed him that he possessed signed authorization
cards from a majority of Respondent’s employees, and asked
Barnhorn to voluntarily recognize the Union as the production
employees’ exclusive collective-bargaining representative.
Barnhorn said that he needed to speak to President Tom Hicks
and took Spano’s telephone number. In mid-afternoon, Hicks
called Spano, who again demanded voluntary recognition; but
Hicks declined, while agreeing to have a card check. Hicks
would call back on Monday to set up the meeting; but on Mon-
day, May 1, Hicks called to announce that he was not going to
agree to the card check and Spano should do whatever he had
to. The petition was filed the next day, May 2.
That is the Union’s story. Respondent’s is quite different. It
starts on April 24, the day by which Ortiz had obtained six
more cards, so the Union had 9 out of 10 cards, a clear major-
ity. But, according to Vazquez, Ortiz did not deliver his cards
to the Union that day, or the day of the meeting 2 days later,
and not until Friday. Not only was that delay unexplained, and
particularly the fact that Ortiz was at the Wednesday meeting,
yet did not turn in the cards. Also unexplained was the fact that
Vazquez had a meeting at all. He had convinced 90 percent of
the employees to designate the Union as their representative,
yet he was supposedly talking to these same employees, who
had signed cards, about union benefits. I find this sequence odd
and do not credit it. It seems more probable that, having ob-
tained a majority on Monday, the Union would have demanded
recognition that day, instead of waiting until Friday. Thus, I
believe Barnhorn’s testimony that the first time he was con-
tacted by the Union was Monday, when Spano called to an-
nounce that a majority of Respondent’s employees had signed
union cards and that he wanted to meet. Barnhorn told Spano
he had no idea who Spano was and, to test the legitimacy of
Spano’s demand, asked if he knew how many employees
worked for Respondent and whether he could name one em-
ployee. Spano refused to answer. Barnhorn took down Spano’s
telephone number, but said that, although he had no authority to
recognize the Union, he would call Spano back.
Instead, Barnhorn gave Spano’s number to Hicks, who called
Spano without success, but left his number. Spano called back
later, again stating he had signed cards for the production em-
ployees and asking for recognition. Hicks declined; and Spano
then asked whether Hicks would agree to a meeting and a card
check, to which Hicks responded that he had no problem meet-
ing but was not sure what a card check was. They spoke again
on Thursday, April 27. Hicks said that he had consulted with an
attorney, who advised not to meet with Spano. Spano angrily
(“so that’s how you fucking want to play it”) ended the conver-
sation.
What transpired before Friday, April 28 is important to un-
derstanding what happened that day, because the complaint
alleges that, as a result of Spano’s telephonic demand that day,
a demand that I have found was made earlier in the week, Re-
spondent interrogated and threatened the employees. The Gen-
eral Counsel’s proof is as follows: Between 11 a.m. and 1 p.m.,
Barnhorn asked Zacarias if he knew anything about the Union.
Zacarias responded that he did not know what Barnhorn was
talking about. Barnhorn said that that morning (thus corroborat-
ing Spano’s testimony that he called that day) he had received a
call from a union representative who had 11 cards, to which
Zacarias said that he did not know why Barnhorn was telling
him 11 cards, because there were only 10 people working there.
Barnhorn said “then you know who is the union leader,” but
Zacarias said that he did not. Barnhorn said that, if he knew
who the union leader was, he would fire the leader, adding that
the Union was “bullshit” and that the only thing that the Union
wanted was their money. Barnhorn kept repeating that he could
not believe that he needed “bullshit” at the company and, at the
end of the conversation, Barnhorn told Zacarias to tell his
friends that there was going to be an employee meeting at the
end of the shift that day.
There was a meeting that afternoon, lasting 2 hours, with all
the production employees, except Ortiz and Gonzales; and
Barnhorn, Hicks, and the new (2 weeks) plant manager, Jaime
Wentworth. Hicks asked Zacarias, who needed a translator
when he testified at the hearing, to translate the meeting in
Spanish for the Spanish-speaking employees, a job normally
assigned to Gonzales, and, according to the employees, asked
each employee, one-by-one, who wanted the Union, why they
wanted the Union (according to Ruiz, “how come we wanted
the union if we had good benefits in the company”), and who
was the leader of the Union. None of the employees provided
Respondent with a definitive answer, each stating that they did
not know what Barnhorn was talking about and that they had
never worked with a union.
Hicks also spoke, writing on the dry erase board what the
employees would have to pay the Union in dues and comparing
that with the money that they could use instead to invest in their
401(k) plans which would appreciate in value. Barnhorn, ac-
cording to Zacarias, repeated his earlier curses, that what the
employees were doing was “bullshit,” and added that he was
never going to sit down and negotiate with the Union, state-
ments that were not corroborated by anyone who attended that
meeting. Nor did any other witness corroborate the use of “bull-
shit,” which Barnhorn and Hicks insisted was part of Zacarias’s
normal language. On the other hand, Hicks admitted that
FANTASIA FRESH JUICE CO. 759
that Respondent wanted to find out what the employees’
knowledge about the Union was and that he asked the group if
they had ever been in a union and what they knew about it. The
intent of the meeting, according to him and Barnhorn, had been
to explain to the employees all their benefits, which they be-
lieved the employees, such as Zacarias, did not understand prior
to seeking the Union’s aid. In any event, only one employee,
Brooks, indicated that he had worked in a union shop before;
and Hicks testified that he specifically started asking Brooks
about his feelings concerning unions and what was good or bad
about them. Brooks was called as a witness by Respondent but
was never asked about the meeting and so did not corroborate
what Hicks testified to.
In any event, Respondent’s different perspective of the meet-
ing stems from Barnhorn’s different recollection about how it
came about. He testified that he met Zacarias in the hall by
chance that morning and, after exchanging pleasantries,
Zacarias asked him in English about a raise. Barnhorn sug-
gested they talk about it in private and summoned Wentworth
to meet with them. Barnhorn apologized for not having met
with Zacarias earlier and understood from Mike Suchetti, Wen-
tworth’s predecessor, who had been terminated at the end of
March, that Zacarias was due a raise in 6 months. (That raise
would come due on May 1.) Barnhorn said that he understood
he was promised a raise of either 50 or 75 cents and agreed to
honor that promise, but he had just been contacted by a union
and he did not know whether or not he could lawfully give a
raise at that point. Zacarias said that he did not need a union, to
which Barnhorn responded that if everything was business as
usual, he would have no problem; but, as of then, he did not
know what to do. Zacarias responded with “fuck the union” and
added that Suchetti had promised him bonuses. Barnhorn asked
whether he was participating in Respondent’s 401(k) plan, and
Zacarias seemed not to know what Barnhorn was referring to.
Barnhorn promised to work out Zacarias’s request as soon as
possible, adding that it appeared that Zacarias did not favor
having a union and telling him that he had the right to tell that
to the other employees.
Based on his conversation with Zacarias, Barnhorn (so he
testified, but I find that the meeting was in obvious response to
the Union’s demand for recognition) realized that the employ-
ees did not fully understand what was in their current benefit
package, told Hicks, and decided to call an employee meeting
to explain the benefits package, which Barnhorn scheduled later
that same day, because he had to leave the next day for Califor-
nia to plan his upcoming wedding. And so the employees, ex-
cept Ortiz and Gonzales, met with Hicks, Barnhorn, and Wen-
tworth. Barnhorn began by dealing with the replacement of
Suchetti by Wentworth and attempting to explain how that
affected the work that the employees were being asked to per-
form and to describe some of the benefits that Respondent pro-
vided. He then explained the 401(k) plan and found out that, of
all the employees, only Brooks was participating, confirming
Barnhorn’s suspicion that the employees might not have fully
understood what benefits Respondent was providing. Barnhorn
next described Respondent’s profit-sharing plan and explained
that 10 percent of Respondent’s profits would be shared with
the employees.4
Barnhorn then turned to the Union organizing campaign, said
that he had been contacted by the Union, and stated that the
employees’ decision to have a union was serious and he wanted
them to understand what benefits they presently had. Hicks
then spoke, asking whether each employee had ever been a
member of a union. Only Brooks answered that he had; and, in
response to Hicks’ question of how that experience had been,
Brooks stated that he felt he was paid more money, but that he
also had to pay union dues and did not think he got anything
back from the dues. Barnhorn then explained that a union might
represent the employees and try to do the best it could, but the
union did not run Respondent. The union could not promise to
deliver; and, if it did, the employees should be sure to get those
promises written. He then returned to the 401(k) plan and, on
the board, compared its benefits with the amounts that the em-
ployees would spend on dues to the union. When an employee
also asked about the reason that they worked more hours on
certain days and less on others, Barnhorn explained that Mon-
day and Tuesday were big production days because that
production goes to the large markets of Minneapolis and
Madison and advised the employees what hours they could
expect to work on each day of the week. He ended the meeting
by expressing his hopes that everyone understood better who
Respondent is and how it performs its business, so that they can
make an informed judgment about having a union.
What happened the next day, April 29, is also sharply at is-
sue. According to Gonzales, at around noon, Hicks walked into
the cooler, where Gonzales and Ruiz were working and asked if
Gonzales knew anything about the Union, to which he an-
swered no. Hicks asked had he worked with the Union before,
and Gonzales again said no. Then Hicks asked who was the
leader of the Union and how many people were involved; and
Gonzales answered that he did not know what is going on, how
many were involved, and what Hicks was talking about. Hicks
then offered Gonzales a 50-cent-an-hour increase and 1 extra
vacation week to vote against the Union. Hicks received a tele-
phone call and had to leave, but he came back an hour later and
repeated the same promise. He added that Gonzales was “to
convince all my friends, all Mexican guys to vote against the
Union. So, the two black guys . . . voted with the Union, so he
could fire them.” Wentworth came in and asked whether he had
considered what Hicks had talked about, and Gonzales said that
he had not. Then Wentworth said that he would put it in differ-
ent words, that instead of paying $60 to the Union, he could
invest that $60 in the 401(k) plan. Wentworth and Hicks left,
Hicks, saying “that we were a bunch of ignorants.”
Ruiz was asked to corroborate these conversations. He testi-
fied that, because he was working, he only heard Hicks ask
Gonzales how it was that he wanted the union, that the union
was not going to benefit him, and if he knew who wanted the

4 One of the Union’s principal contentions is that the 401(k) and
profit-sharing plans were newly announced in response to the Union’s
demand for recognition. That is not, as the Union concedes, an allega-
tion of the complaint, is not urged as a violation of the Act by the Gen-
eral Counsel, and was not fully litigated or briefed by Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 760
union and why. But Gonzales testified that he told Ruiz about
both conversations. As to Gonzales’s first conversation, Ruiz
remembered only that Gonzales “told me that Mr. Tom had
asked him about the union. That he should leave that alone
because that was not going to do him any good. And he should-
n't worry about the union.” As to the second conversation, Ruiz
testified that Gonzales

told me that Tom asked him what have you thought about the
union. He also told me that he told him to vote against the un-
ion. He was going to give him a 50 cent raise and an extra
week of vacation if he voted against the union because he
tried to convince us, the Mexicans, that we should vote
against the union. So that way, the two Negroes would vote,
that the two Negroes would vote for the union. And that way
he could fire them.

Respondent’s witnesses denied almost all of this testimony.
According to Hicks, he asked Wentworth to explain the bene-
fits package to Gonzales and Ortiz, neither of whom had at-
tended the meeting, and Wentworth did so, particularly about
401(k) plan. While they were talking, Hicks came into the
cooler, ensured that Wentworth was following his directions,
and then asked Gonzales “to help us translate this and get this
communicated to the rest of the people,” to which Gonzales
agreed.
There was one additional alleged unfair labor practice before
the evening of May 2, when the employees met at the Union
office and allegedly voted for a strike. According to Henriquez,
on May 1, Hicks told him that he would give him a 50-cent
raise and an extra week of vacation to vote no for the Union.
Henriquez said that he did not know what Hicks was talking
about. Hicks then asked Henriquez to tell him who the leader of
the Union was and which employee was responsible for the
Union; but Henriquez said that he had no knowledge of the
union situation. Hicks denied that he had any such conversation
with Henriquez.
This is primarily a credibility case, and the General Counsel
has the burden to prove the allegations of the complaint by a
preponderance of the evidence. There is no way to reconcile the
completely different and consistently antithetical recollections
of the witnesses for both sides. Furthermore, not one witness’s
testimony was wholly adequate. In considering the differing
recollections of the witnesses, I have fully reviewed the entire
record and carefully observed the demeanor of all the wit-
nesses. The standard guide for determining credibility, which I
have followed, is to take into consideration the apparent inter-
ests of the witnesses; the inherent probabilities in light of other
events; corroboration or the lack of it; the consistencies or in-
consistencies within the testimony of each witness and between
the testimony of each and that of other witnesses with similar
apparent interests. See generally NLRB v. Walton Mfg. Co., 369
U.S. 404, 408 (1962).
I found Henriquez to be thoroughly unreliable. His testimony
that Hicks was going to tell the Union to fire the employees for
bothering Respondent was improbable. According to Henri-
quez, Barnhorn said “that the union would come, that we
shouldn’t tell them anything. They were going to tell the union
people to fire us.” At another point of his testimony, he attrib-
uted to Barnhorn: “He was going to tell the union people that
we were bothering them a lot, so they would fire us” and, to
Hicks, “if we say something to them, they were going to tell
something to the Union people that we were bothering them so
the Union will fire us.” He could not understand the questions
put to him. His answers indicated general confusion. His recol-
lections of events appeared minimal. I do not credit him at all
and particularly note that he never repeated to any other em-
ployee the interrogation and the offer of an increase. In fact, at
the union meeting on May 2, according to Vazquez, Henriquez
said that he was threatened that “he was going to get fired if
they knew he was the head of the Union,” an allegation that
Henriquez never made in his testimony. No one else testified
that Henriquez made that statement, and I thus do not believe
Vazquez, either.
I recognize that Zacarias and Gonzales testified to offers simi-
lar or identical to that which Henriquez testified. Often that might
be persuasive in finding a violation. Here, however, there was not
much corroboration of any of these offers.5 Although Gonzales
may have told Ruiz about the offer of the raise and the additional
week of vacation, when the employees met on May 2 to discuss
what had happened in the prior week and ultimately decided to
strike, neither Zacarias nor Gonzales nor Henriquez testified that
he told the other employees that he was made these offers, and
none of the other employees and none of the union representa-
tives testified that the three employees made mention of these
offers. In addition, as will be seen, Zacarias confirmed that he
brought up the issue of Suchetti’s promise of a raise with Hicks,
not on April 28 as Hicks had testified, but on the evening of the
first day of the strike, May 3, thus partially supporting Hicks’
testimony about the nature of the increase that they were talking
about, not to influence the result of the election but to live up to
the promise that had been made to Zacarias when he was hired.
On May 4, the second day of the strike, Zacarias reported to Ruiz
only that he had met with Hicks the previous night and that Hicks
had asked him to go back to work and to forget about the strike
and the other employees, who “were not going to go back any-
more,” an allegation that was not part of Zacarias’s testimony on
direct examination. Zacarias did not tell Ruiz anything else about
which he testified at the hearing: that Hicks offered Zacarias an
immediate raise of 75 cents to $1 raise and an additional $1 raise
in about 2 months if he went back to work the following day; that
Hicks threatened that Respondent would never sit down and
negotiate with the Union: and that, if Zacarias remained on strike

5 The Union contends that Respondent must have made these prom-
ises because its payroll records show that Vu, who crossed the picket
line and returned to work, was granted an hourly increase of 50 cents
starting the payroll period ending May 28. That was not effective, con-
trary to the Union’s brief, “upon his crossing” the picket line, but at
least a week later. No increases were given to either Jones or Brooks,
who also returned to work. Vu was one of the lowest paid employees
and had not received an increase since he was first hired. Respondent’s
payroll records show that other employees, including the ones who
claim that these promises were made, received increases, similar to
Vu’s, in January, so Vu’s increase is not out of the ordinary. Finally,
there is no showing that Vu was also granted an additional week’s
vacation.
FANTASIA FRESH JUICE CO. 761
and later returned to work, working conditions would not be the
same because Respondent would not trust and respect him.
The testimony of Zacarias was generally unreliable concern-
ing the increase that he asked for. Rather, it appears that he was
interested in obtaining the increase that had been promised to
him by Suchetti and that, after the first full day of the strike, he
returned to Respondent’s facility on May 3 with his wife and a
friend to translate for him to obtain not only that original in-
crease but more. Zacarias reminded Barnhorn of Zacarias’
promise to give him a raise after 6 months. Barnhorn said that,
if Suchetti had promised Zacarias a 75-cent raise, that was in
place. Zacarias then said that Wentworth had promised him a
dollar. Hicks doubted that and went to get Wentworth, who
returned with Hicks and said that he had made no such promise.
Then Zacarias asked for healthcare coverage for his family at
Respondent’s expense, and Barnhorn told him that Respondent
would not do that. Finally, Zacarias insisted that Suchetti had
promised him a $1000 bonus every 6 months. Barnhorn ex-
plained that that was a reason that Suchetti had been fired, that
he did not know all the promises that Suchetti had made, and
Respondent could not do that. I find Respondent’s explanation
of its conversations cogent and detailed, credit them, and dis-
credit Zacarias. I dismiss the allegations of the complaint in-
volving him.
Finally, I find remarkable the similarity of the testimony of
Henriquez and Gonzales to the effect that Respondent’s wage
increases and added vacations were given to them to affect their
vote (vote no) against the Union when the Union’s petition for
a representation election had either not been filed or, clearly,
Respondent had not received the petition, which was filed on
May 2, the same day as the unfair labor practice charge was
filed, which was mailed by the Regional Office on May 4 and
received by Respondent on May 6.6 I conclude, therefore, that
there is no credible proof that any unlawful offer of wage in-
creases or additional benefits was made to any of the three em-
ployees and conclude that Respondent did not violate the Act in
that respect.
One of the Union’s objections to the election suffers from
the same lack of corroboration. For example, Gonzales accused
Hicks of the violation of seeking to convince the Spanish-
speaking employees to join a cabal against the Union, leaving
the African-Americans as the sole supporters of the Union so
that Hicks could fire them. Quite frankly, I found that testi-
mony rather astounding when I first heard Gonzales testify to it.
In fact, his allegation gained more support when Hicks, who
denied this with great fervor, was confronted on cross-
examination with a memorandum showing that there had been a
conflict among the employees described as “cultural/eth-
nic/language,” which Hicks weakly and unbelievably opined
was solely a difficulty of understanding what the employees
were saying. Rather, the objection could have validity as an
attempt by Respondent to take advantage of the racial discord
in the facility (there had been some use of the “n” word.) Ruiz

6 Had Hicks agreed to a card check on April 28, as Spano testified,
he would have had no reason to offer an increase to affect his employ-
ees’ votes.
did confirm that Gonzales told him of this statement shortly
after it was allegedly uttered.
The only other person who allegedly heard of the statement
was, according to Gonzales, Brooks, an African American,
who, Gonzales testified, asked him if he was “going to do what
Tom said.” Gonzales asked him what, and Brooks replied:
“[T]elling all the Mexican guys to vote against the Union so he
could fire us.” Brooks vehemently denied that any such conver-
sation took place. No one else, not the employees, and not the
Union representatives testified to it being mentioned, despite
Gonzales’s testimony that he told the other employees at the
May 2 prestrike meeting. Although there was corroboration
from Ruiz, I find this incident difficult to believe, particularly
because Respondent thought so highly of Brooks that he had
been made a supervisor earlier, but had been removed as a re-
sult of the complaint of the employees, mostly those who were
Spanish-speaking. Even in this proceeding, the Union contends
in its challenges that Brooks was a supervisor; and so it is
unlikely that Hicks would have threatened to discharge the two
African Americans, one of whom it so trusted.
There remains a number of alleged interrogations and
threats. Regarding the former, I find that the questions asked of
the employees were consistent with the testimony of Barnhorn
and Hicks, that they asked only whether the employees had
been members of a union in order to compare that experience
with the benefits already afforded by Respondent and that they
did not ask who started the organization drive. I do not find that
coercive under Westwood Health Care Center, 330 NLRB 935,
939–940 (2000); Rossmore House, 269 NLRB 1176 (1984),
enfd. sub nom. Hotel & Restaurant Employees Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). I find that Ruiz’ testi-
mony as a whole did not corroborate Zacarias’ and Henriquez’s
allegations that they were asked who the leader of the Union
was. Rather, Ruiz testified inconsistently in a number of ways.
First, he testified that Hicks asked: “how come you want a un-
ion and what do you want?” However, later in his examination,
Ruiz recalled the question differently: “how come we wanted
the union if we had good benefits in the company.” Then he
testified: “He wanted to know inside that group who were more
interested in it. He wanted to know who was organizing the
union.” Then he testified: “He was asking who is it, how come
you want the union.” At first, Ruiz testified that he responded:
“I didn't have any idea what he was talking about. That I didn't
know what the union was since I never worked with one.” Then
he testified: ”They all answered the same as, the way I an-
swered it. We had never worked with a union before.” When
asked whether it was true that he was being asked whether he
wanted a union, his response was that “I don't know what
they're, what they were talking about.” Considering these in-
consistent answers, at least one of which was consistent with
Barnhorn’s and Hicks’ testimony that the employees were
asked only if they had been members of a union before, the last
admission that Ruiz did not comprehend what was being said,
and the otherwise unsatisfactory testimony, I do not find unlaw-
ful interrogation or polling, as alleged in the complaint. Fur-
thermore, although I received in evidence the precomplaint
investigatory affidavit of Ortiz given to the Regional Office, I
give it no weight and find no unfair labor practice, the only
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762
purpose for which the affidavit was offered. It is uncorrobo-
rated hearsay.
As stated above, this is a Gissel case. After careful review of
the record, I find that there are so many problems with the tes-
timony presented by the witnesses for the General Counsel that
I cannot believe them, and I accept the logical and not improb-
able testimony and the specific denials of Barnhorn, Hicks,
Wentworth, and the other witnesses presented by Respondent.
Testimony in contradiction to their testimony has been care-
fully considered but discredited. That being said, Respondent
did not commit any violations of the Act, no bargaining order is
warranted, and I would normally not feel it necessary to detail
the meeting at which the General Counsel contends that the
employees voted to strike. But it is important to consider that
meeting because of the credibility problems raised in this pro-
ceeding and in the event that, if exceptions are filed, the Board
finds that Respondent violated the Act. A meeting of all the
production employees, except Brooks and Vu, was held on May
2. Henriquez, Gonzales, and Ruiz each testified that the em-
ployees complained about conduct by Respondent, Vazquez
said the conduct was illegal because it was an unfair labor prac-
tice, and the employees voted to strike by raising their hands.
There are a variety of problems with the believability of this
testimony. Jones, the only witness who had no stake in the re-
sult of this proceeding, although confirming that Vazquez men-
tioned the term “unfair labor practice,” testified that no vote
was taken. In addition, only one purpose of a strike was men-
tioned by Vazquez. On April 26, Vazquez said, “If the com-
pany doesn't come to terms with the Union we may be forced to
strike.” At the meeting on May 2, Vazquez said: “He gave Tom
[Hicks] a call and Tom didn't want to come to terms with the
Union. So he wants to strike.” On the picket line the next day,
Vazquez “spoke about tactics in which they use to get the com-
pany to come to terms with the Union.“ Vazquez did not on the
General Counsel’s rebuttal case deny Jones’ testimony. In addi-
tion, Vazquez’ recollection of what happened at the May 2
meeting—that, after being told of Respondent’s unfair labor
practices, he told the employees that “the Union would file
charges against the company”—was inconsistent with the fact
that the Union had filed charges earlier that same day, before
the evening meeting. I credit Jones, and I find that Vazquez and
the employees attempted to justify an ill-conceived and unsuc-
cessful strike by trying to make it appear as if they were con-
ducting an unfair labor practice strike, when in fact they were
attempting to force Respondent to recognize the Union. Con-
cord Motel, 298 NLRB 1096, 1096 fn. 1 (1990).
The strike began on May 3, with most of the employees car-
rying or posting signs that read that Respondent was “Unfair to
Union labor Local 24 AFL–CIO.” Respondent began hiring
permanent replacements. On Friday, May 5, Hicks came out to
the picket line, flanked by two policemen, and read in English
from a written statement that, effective that day, Alameda, Hen-
riquez, and Ruiz were permanently replaced. The letter was
orally translated into Spanish. Respondent’s counsel sent to the
Union on the same day a letter containing the same information
that had been read to the picketers. Respondent followed the
same routine in permanently replacing Gonzales and Ortiz on
Monday, May 8, and Zacarias, Silva, and Brooks on Thursday,
May 11. An employer does not discharge an economic striker
simply by advising him that it has hired a permanent replace-
ment to fill his position. Chromalloy American Corp., 286
NLRB 871, 872 (1987), enforcement denied on other grounds,
873 F.2d 1150 (8th Cir. 1989). Respondent had the right to
replace these economic strikers permanently. NLRB v. Mackay
Radio & Telegraph Co., 304 U.S. 333, 346 (1938). I conclude
that Respondent did not violate the Act by permanently replac-
ing the strikers and dismiss this allegation.
On May 31, Respondent held a mandatory meeting with its
production employees, almost all of whom were recently hired.
A statement was read by attorney Yolanda Haces,7 containing
the following language, which is quoted by the General Coun-
sel (with additions by me to ensure the accuracy of the quota-
tions) to support his claim that Respondent violated the Act:

If we can’t get 6 votes, then this matter could continue
on for months. The NLRB would have to rule on the chal-
lenged ballots and then the unfair labor practice charges.
All this litigation would make it much more difficult to
operate and service our customers over the summer. Obvi-
ously this would also impact the job security of everyone
working at the facility.

This Union activity hasn’t benefitted [sic] anyone that
we can see. Even if the Union represented the employees,
it cannot guarantee employees that it will get them any in-
crease in wages or benefits. All the Company would need
to do is sit down and negotiate with the Union, but the Un-
ion cannot force the Company to agree to anything. If the
Company and the Union can’t agree on a contract, then the
Union obviously can strike. You’ve already seen what
happens to employees when a union strikes. Employees
lose wages, they lose company-paid benefits, they’re in-
eligible for unemployment compensation, they can be
permanently replaced and it makes it very difficult and ex-
pensive for the Company to service its customers.

Unfortunately, a “YES” vote will mean that the Union
could continue to play its funny little games here at Fanta-
sia Fruit. But, we don’t think anyone has had much fun
over the last month. The employees, their job security and
our customers would all be much better off if the Union
loses the election on June 2.

. . . .

If you have enjoyed working at Fantasia, the best thing
for you to do would be to support the Company by voting
“NO”- by voting against the Union. [Emphasis in original.]

The complaint alleges that the speech threatened employees
with discharge, loss of wages and benefits, and with permanent
replacement because of their union activities. I disagree. The

7 Hicks was not being candid when testifying to the Haces speech,
when he first stated that she was to share what “[w]e had prepared . . .
her to say.” Despite the fact that he had left the room, he then stated:
“She kind of put it aside and had more of a discussion with the employ-
ees about the company. I think she read a couple of the points and that
was it.” That was obviously not true. The parties stipulated that she
read the document word for word in its entirety.
FANTASIA FRESH JUICE CO. 763
speech sets forth an accurate description of the realities of an
economic strike. It contains no threat of a discharge. The loss of
wages and benefits is a natural result of the withdrawal of ser-
vices. As noted above, Respondent was entitled to replace eco-
nomic strikers permanently. I conclude that the speech does not
violate the Act.
On June 7, Vazquez, on behalf of all the strikers, faxed a let-
ter to Respondent unconditionally offering to return to work.
The next day, June 8, Vazquez, McDonough, and six of the
striking employees went to Respondent’s facility and person-
ally reiterated the unconditional offer. Hicks admitted receiving
the letter, but said that Respondent could not take the strikers
back because it prepared its schedules 2 weeks in advance, but
would call them back as soon as possible. Respondent called
back most of the strikers, who returned on the following days:
Silva, June 12; Zacarias, June 19; Gonzales and Ruiz, July 8;
and Alameda, July 10. No one can find Ortiz, and Respondent
declined to offer Henriquez reinstatement on the ground that,
about 2 weeks after the strike commenced he held in his hand a
large rock, the size of a softball, as if to throw it through Wen-
tworth’s windshield.8 This is not a Laidlaw9 case. The premise
of the complaint is that the employees were protesting Respon-
dent’s commission of unfair labor practices, none of which I
have found. There is no evidence, and the General Counsel
does not contend, that the strike was ever converted to an unfair
labor practice strike. Accordingly, by not reinstating the strikers
immediately, Respondent did not violate Section 8(a)(3) and (1)
of the Act. I will dismiss this allegation.
The Objections and Challenges
On May 23, the Regional Director for Region 13 issued a
decision and direction of election describing the appropriate
bargaining unit as all full-time and regular part-time production
employees employed by Respondent at its Rosemont, Illinois
facility. The election held on June 2, 2000 was inconclusive,
the tally being 7 votes for the Union, 7 votes against it, and 16
determinative challenges. Almost all of the Union’s objections
mirror the allegations of the unfair labor practice complaint.
Because I have concluded that Respondent did not violate the
Act in any manner, I dismiss those objections, as well as objec-
tion 8, which is based on racial appeals. I also dismiss, as un-
supported by any evidence, objections 5 and 6 that Respondent
called the police and threatened to arrest the strikers and threat-
ened employees that it would do whatever it takes to prevent
them from obtaining union representation. To the extent that
objection 5 complains that Respondent did something wrong by
arranging for police protection, given the threat made to Brooks
by an unidentified person in front of his home, the telephone
threat to Vu, the four slashed tires on Vu’s car, Respondent’s
missing production tools, such as knives, thermometers, and

8 The incident was never reported to the police, who were in atten-
dance at the picket line at all times. Respondent never notified Henri-
quez that it had terminated him. I find that this incident never hap-
pened. There were in the area no rocks which Henriquez could have
picked up to throw, and he would have been stupid to do so in front of
and in clear view of the police.
9 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1970).
razor blades, and the sabotaging of Respondent’s labeling ma-
chine, police protection was warranted.
The Union objects, however, to the validity of Respondent’s
Excelsior10 list, because Respondent omitted from the list the
seven strike replacements. In Woodman’s Food Markets, 332
NLRB No. 48 (2000), which involved the omission of 12 eligi-
ble employees from the Excelsior list where the union lost the
election by 13 votes, the Board reconfirmed that “employees
have a Section 7 right to make a ‘fully-informed’ choice in an
election, and . . . the purpose of the Excelsior rule is to protect
that right,” quoting from Thiele Industries, 325 NLRB 1122
(1998), and held that:

in determining whether an employer has substantially
complied with the Excelsior requirements, the Board must
consider not only the number of names omitted from the
Excelsior list as a percentage of the electorate, but also
other factors, including the potential prejudicial effect on
the election as reflected by whether the omissions involve
a determinative number of voters and the employer's rea-
sons for omitting the names.

The seven employees who were omitted constituted 23 per-
cent of the eligible voters. The names were left off the list de-
liberately, and in spite of the Regional Director’s denial on May
23 of Respondent’s motion11 to permit it to omit those names
and to make alternate arrangements for the Union to have ac-
cess to the employees. Respondent’s bad faith precludes a find-
ing that Respondent was in substantial compliance with the
Excelsior rule. Bear Truss, Inc., 325 NLRB 1162, 1162 fn. 3
(1998). In addition, Respondent did not even supply the names
and addresses of nine other newly hired employees until three
days before the election. The omissions involve a determinative
number of voters. I sustain the Union’s objection 1.
Respondent also objected to the results of the election in the
event that the Union won. I am not persuaded that either of
Respondent’s objections have merit. Vu testified that he had to
pass some people whom he identified as union business agents
in order to vote, but there was neither electioneering going on
nor did these people say anything nor was it really shown that
they were in the wrong place. Respondent also alleges that,
during the preelection period, the Union threatened Vu on the
phone and slashed all four of the tires on Vu’s car and that
Brooks was threatened by an unidentified person in front of his
home. Although I have no doubt that these particular acts oc-
curred, Respondent did not prove that the Union played any
role in the threats or vandalism. Lacking that proof, I dismiss
Respondent’s objections.
The ballots of the seven strike replacements, Julio Garcia,
Enrique Cebrero, Gustavo Torres, Manuel Diaz, Jose Gomez,
Adan Galeana, and Noe Escalora were challenged. Permanent
replacements of economic strikers may vote, if they are other-
wise eligible. Akron Engraving Co., 170 NLRB 232, 233
(1968). To be eligible to vote, the employees must be in the
unit on the established eligibility date and in employee status,
hired and working, on the date of the election. Plymouth Tow-
10 Excelsior Underwear, 156 NLRB 1236 (1966).
11 Fn. 4 of her Decision and Direction of Election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764
ing Co., 178 NLRB 651, 651 (1969). They were. The chal-
lenges are overruled.
The Union challenged the ballots of seven employees whom
Respondent newly hired following the strike: Ramon Chavez,
Raul Rosas, Manuel Galeana, Rizolino Mangalindan, Jose So-
lano, Bernardo Bravo, and Felix Rios. The Union does not dis-
pute that these employees were hired as of the May 20 eligibil-
ity cutoff date, nor does the Union dispute that all seven em-
ployees were working as of May 20. The record so demon-
strates, and the employees would normally be eligible to vote.
Ibid.
The Union contends, however, that Respondent hired the
new employees not for legitimate business reasons, but instead
to “pack” the unit to improve its chances in the election. Re-
spondent’s sales have doubled each year since its inception,
exceeding its own optimistic sales projections; and production
increased during the strike. Its sales growth continued in May,
due to its significant university market share. Its hiring of new
employees was consistent with projections that it published on
January 28, in which it projected the need for 20 employees in
2000. That projection was updated on May 31 to 24 employees.
In a memorandum, dated March 30, Barnhorn reported to Hicks
that “we are currently understaffed by probably 4-5 people and
already working long work days” and that “[o]ur target is to
build the team to 15+ members by late Spring if at all possi-
ble.” Respondent told its current employees how “badly” it
needed new employees, and Respondent hired five new em-
ployees after the eligibility cutoff date, in addition to reinstating
five of the strikers. The Union did not meet its burden to “es-
tablish by a preponderance of the evidence that Respondent’s
action in [undertaking the hiring] . . . was for reasons pro-
scribed by the Act.” Supermarket of Dunbar, 178 NLRB 206,
206 (1969). I further conclude that Respondent had legitimate,
nondiscriminatory reasons to hire the seven employees and find
that the seven were eligible voters. Ibid. The challenges are
overruled.
The Union challenges the ballot of Brooks on the ground that
he is a supervisor. He may have been at one time, but most of
the employees objected to his performance, and he was re-
moved from his position on March 30, long before the election.
Although by reason of his greater familiarity with all of the
manufacturing processes employed by Respondent he may have
trained, counseled, instructed, and advised employees, and
although from time to time he may have relayed assignments
and other directions, there is no credible evidence in this record
that he had any authority which would bring him within the
scope of the Act’s definition of supervisor in Section 2(11).
Some employees tried to inflate what Brooks did; but, when the
employees were trying to organize, there was no objection to
his attendance at the April 28 meeting as an employee and no
contention that he should not have been given an authorization
card to sign, as he was. He earned $11 per hour, perhaps 50
cents more than the average employee was paid, and received
overtime and all the other benefits that employees were given.
He was an employee, and the challenge is overruled.
The Union challenges the ballot of Roy Villegas, the part-
time mechanic, who maintained and did troubleshooting of
Respondent’s equipment primarily at night when the other em-
ployees were not working. He earned $20 per hour, compared
with the average employee who was paid $10.50 per hour. The
agreed-upon unit includes only production employees. It does
not include maintenance employees. Respondent did not even
include Villegas on its first Excelsior list. I conclude that he
was not a valid voter and sustain the challenge.
The representation proceeding is remanded to the Regional
Director to take such further action as she deems necessary, in
consideration of my rulings on the objections to the election
and the challenges, including the opening and counting of the
ballots, preparing and serving on the parties a revised tally of
ballots and, if the Union is successful, issuing the appropriate
certification. In the event that the revised tally shows that the
Union is not successful, then a second election shall be di-
rected.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The proceedings in Case 13–RC–20319 are hereby severed
and remanded to the Regional Director of Region 13 to take
such further appropriate action as is consistent with this Deci-
sion.
IT IS FURTHER ORDERED that the complaint in Case 13–
CA–38526 is dismissed.

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.