Farley Candy Co.

National Labor Relations Board - Board Decisions

Dec 10, 1990

300 N.L.R.B. 849 (N.L.R.B. 1990)

849
300 NLRB No. 111
FARLEY CANDY CO.
1 The General Counsel also filed a motion to strike the Respondent’s excep-
tions. The General Counsel contends that the exceptions should be rejected be-
cause they fail to comply with Sec. 102.46(b) of the Board’s Rules and Regu-
lations in that they do not set forth specifically the portions of the judge’s de-
cision to which exceptions are taken and they do not designate by precise cita-
tion the portions of the record relied on. Although the Respondent’s exceptions
do not comply in all particulars with Sec. 102.46(b), they are not so deficient
as to warrant striking. Moreover, the General Counsel has not shown prejudice
as a result of any deficiency. In light of all these circumstances, the General
Counsel’s motion is denied. La Reina, Inc., 279 NLRB 791 fn. 1 (1986). The
General Counsel also contends that portions of the exceptions should be struck
because they make factual assertions that are contrary to evidence in the
record. We find no merit to this argument.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderence of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 363 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings. We also find
no merit in the Respondent’s allegations of bias and prejudice on the part of
the judge. Thus, we perceive no evidence that the judge prejudged the case,
made prejudicial rulings, or demonstrated a bias against the Respondent in his
analysis or discussion of the evidence. Similarly, there is no basis for finding
that bias and prejudice exist merely because the judge resolved important fac-
tual conflicts in favor of the General Counsel’s witnesses. NLRB v. Pittsburgh
Steamship Co., 337 U.S. 656, 659 (1949).
In affirming the judge’s findings, we do not rely on his statement that the
Respondent treated employees Espinoza and Silva as voluntary quits. Rather,
as stated elsewhere in the judge’s decision, we find that the Respondent un-
lawfully terminated these employees because of their protected concerted ac-
tivities.
The Respondent has also excepted to the judge’s finding that Javier
Gonzales is a supervisor. In view of the testimony presented at the hearing
and the Respondent’s concession on the record that Gonzales was a supervisor,
we find no merit to this exception.
3 We have modified the judge’s recommended Order to include the standard
cease-and-desist language for the type of violations found in this case.
Farley Candy Company and Chemical & Allied
Product Workers Union, Local No. 20, affili-
ated with International Union of Allied, Nov-
elty and Production Workers. Case 13–CA–
28528
December 10, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On June 22, 1990, Administrative Law Judge Wal-
lace H. Nations issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.1
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 de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, and to adopt the judge’s recommended Order
as modified.3
The Respondent has excepted, inter alia, to the
judge’s finding that the work stoppages on February 3
and 4, 1989, were not unprotected partial or intermit-
tent strikes. We find the Respondent’s argument in
support of this exception to be unpersuasive. On Feb-
ruary 3, the employees in the Respondent’s pan depart-
ment briefly stopped work in an attempt to meet with
plant management to raise a question about wage rates
and to demand higher wages and less scheduled over-
time. The Respondent gave an answer to the wage rate
question, but declined to grant a wage increase, and
the employees returned to work. Later that same day,
the Respondent’s packaging department employees
also stopped work and sought out plant management to
ask about wage rates and to demand improvements in
wages and hours. In response to this stoppage, the Re-
spondent promised to consider the request for a wage
increase and agreed to reduce the packaging depart-
ment employees’ scheduled workshift from 12 to 8
hours for the following day, Saturday, February 4. On
February 4, pan department employees, including
Espinoza and Silva, stopped work at the same time as
the packaging department employees, refusing to work
their full shift, in support of their prior concerted de-
mands. Seven employees were terminated on February
6 and 7; five from or assigned to the packaging depart-
ment, and Espinoza and Silva from the pan depart-
ment.
We find that these employee actions did not con-
stitute a partial or intermittent strike, i.e., a plan to
strike, return to work, and strike again. Thus, we find
no evidence to indicate that the five terminated pack-
aging department employees who only stopped work
once, on February 3, intended to or did engage in a
partial or intermittent strike. In this regard, we particu-
larly reject the Respondent’s assertion that a plan to
conduct intermittent strikes may be inferred from the
fact that, when interviewed by the Respondent, five of
the terminated employees stated that they still desired
a wage increase and a reduction in their 70-hour work-
week.
Although pan department employees Espinoza and
Silva also engaged in a work stoppage on February 4
(in addition to their activities on February 3), we view
their decision to leave work early on February 4 not
as an intermittent strike, but rather as a reaction to the
Respondent’s decision the previous day to address the
packaging department employees’ demands after refus-
ing Espinoza’s and Silva’s earlier, similar request on
behalf of the pan department employees. See City
Dodge Center, 289 NLRB 194 (1988), enfd. 882 F.2d
1355 (8th Cir. 1989). Under these circumstances, we
find that the work stoppages on February 3 and 4,
1989, were protected concerted activities.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Farley
Candy Company, Chicago, 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(b).
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1989 unless otherwise noted.
2 Local 20 is one of eight locals which make up the Central States Joint
Board, which represents members with respect to collective bargaining and
other matters affecting their working conditions at a number of employers in
a 10-state area. It is a party to a number of collective-bargaining agreements
and engages in servicing its membership pursuant to the terms of those agree-
ments.
‘‘b. Discharging or otherwise disciplining employees
because they have engaged in protected concerted ac-
tivities.’’
2. 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
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT promulgate and maintain an overly
broad no-solicitation, no-distribution rule.
WE WILL NOT discharge or otherwise discipline you
because you have engaged in protected concerted ac-
tivities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL rescind our overly broad and vague no-so-
licitation, no-distribution rule.
WE WILL offer immediate reinstatement to the per-
sons named below, to their former positions or, if
those positions no longer exist, to substantially similar
positions, discharging if necessary any employees hired
to replace them, and make them whole for any losses
they may have suffered as a result of our discrimina-
tion against them, with interest:
Ramon Leon Minerva Flores
Adela Mondragon Onesimo Rojas
Feliciano Martinez Enrique Espinoza
Jorge Silva
WE WILL remove from our personnel records any
reference to the discharges of these persons and notify
them in writing that this has been done and that the
references removed will not be used as a basis for fu-
ture discipline against them.
FARLEY CANDY COMPANY
Richard Kelliher-Paz, Esq., for the General Counsel.
Robert Mirin, Esq., of Harrisburg, Pennsylvania, for the Re-
spondent.
Michael Gotkin, Esq., of Skokie, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on a charge filed April 5, 1989,1 by Chemical & Allied
Product Workers Union, Local No. 20, affiliated with Inter-
national Union of Allied, Novelty and Production Workers
(Union), the Regional Director for Region 13 issued a com-
plaint and notice of hearing on May 16. The complaint al-
leges that Farley Candy Company (Farley or Respondent)
maintained an overly broad no-solicitation, no-distribution
rule, and discharged certain of its employees because they
engaged in protected concerted activity in violation of Sec-
tion 8(a)(1) of the National Labor Relations Act (Act). Re-
spondent’s answer to the complaint, while admitting most
factual allegations, denies that it committed any unfair labor
practice.
A hearing was held in this matter February 28 through
March 3, 1990 at Chicago, Illinois. Briefs were received
from the parties on or about May 29, 1990. Based on the en-
tire record, including my observation of the demeanor of the
witnesses, and after consideration of the briefs, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent Farley Candy Company, a corporation, with
an office and places of business located at Skokie, Chicago,
Zion, and Bedford Park, Illinois, engages in the business of
manufacturing candy. Respondent has admitted the jurisdic-
tional allegations of the complaint and I find that it is now
and has been at all times material to this proceeding, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was established by competent evidence,2 and I find, that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Complaint Allegations
The complaint alleges that on or about February 3 and 4,
a number of Respondent’s employees at its Chicago facility
engaged in protected concerted activity, including work stop-
pages. Thereafter, because of their protected activity, Re-
spondent, on February 6, discharged employees Ramon Leon,
Adela Mondragon, Onesimo Rojas, Feliciano Martinez,
Enrique Espinoza, and Jorge Silva, and on February 7, dis-
851FARLEY CANDY CO.
3 Apparently because of problems associated with the U.S. immigration
laws, a number of the alleged discriminatees used assumed names while work-
ing at Respondent’s facility. The names of these individuals as set forth above
and in the complaint will be used throughout this decision. However, to allay
any confusion on the part of a reader of this record, the true names of those
alleged discriminatees going by an assumed name are as follows: Adela
Mondragon (Adela Hernandez), Feliciano Martinez (Isidor Melero), and
Enrique Espinoza (Gabriel Merino).
4 The evidence is not clear on this point, and there may have been just 36
pans of both sorts in the department.
5 Both employees testified that Latham was also in attendance at this meet-
ing. However, I believe the best evidence indicates that he was not. Many of
the employees testifying in this proceeding confused the names of the two
management officials, calling Latham, Stengren, and vice versa. Considering
the language problems involved, I do not consider this confusion at all signifi-
cant. Stengren described the terminated employees’ language proficiency as
follows: Silva and Espinoza speak English, Mondragon and Rojas speak a little
English, and Leon, Flores, and Martinez speak no English.
charged Minerva Flores.3 Respondent admits discharging
these employees, but asserts that its actions in this regard
were not related to any protected activity and, to the con-
trary, were for just cause.
The complaint also alleges that Respondent maintains, in
its Spanish-language version, an overly broad no-solicitation,
no-distribution rule. Respondent denies this allegation.
B. The Concerted Activity of February 3 and 4
Farley manufactures candy at facilities located at Skokie,
Chicago, Zion, and Bedford Park, Illinois. The facility pri-
marily involved in this case is Respondent’s Chicago plant
where it makes jellybeans and similar candies. Many, if not
most, of its employees at that facility are Mexican aliens,
some of whom were in this country legally and some ille-
gally as of January 1989. On or about February 2, the plant
was visited by representatives of the U.S. Immigration and
Naturalization Service (INS) who inspected Respondent’s
personnel records and interviewed certain employees. As a
result of the inspection, it was found that a large number of
employees did not have proper INS documentation. Some of
these employees were arrested or otherwise removed from
the plant.
As a result of the permanent loss of these employees, Re-
spondent began hiring new employees. Its starting salary for
unskilled new employees at this time was $3.60 per hour and
that is what the replacement employees were offered. How-
ever, one or more Spanish-language radio stations in the area
evidently reported that the Respondent was offering $4.50 to
$5 per hour for new employees. This amount was substan-
tially more than existing employees at the Chicago plant had
received when first hired and as much or more than they
were currently making. These radio reports evidently trig-
gered employee unrest and resulted in the events which led
to the involved discharges.
On February 3, there were three employee work stoppages
at the plant. One of these job actions involved employees
from the pan department and the other two involved pack-
aging department employees. The two departments are about
20 feet apart and are separated by heavy plastic strips used
as insulation. On February 3, there were 21 day-shift em-
ployees and 21 night-shift employees working in the pan de-
partment. The business of Farley is seasonal with the busy
season being the period from September through March of
each year. During the January—February timeframe involved
in this case, the Respondent regularly scheduled two 12-hour
shifts per day, 6 days per week. Additionally, there were oc-
casional Sunday shifts scheduled. These schedules applied to
both the pan and packaging departments. The shifts involved
began about 6 a.m. and ended at about 6 or 6:15 p.m.
1. The pan department work stoppage
In the jellybean manufacturing process, a slurry of cooked
raw materials is placed on ‘‘boards’’ or molds and allowed
to harden somewhat. The resulting product constitutes the
jellybean centers which are then ‘‘grossed’’ and ‘‘polished’’
in the pan department. The grossing process takes place in
‘‘pans,’’ which were described as large machines much like
revolving cement mixers. The centers are placed in the pans
and flavored and colored syrup added, and the contents are
revolved as the syrup adheres to the centers. The grossing
process takes about 2 hours. If the process is significantly in-
terrupted, the mixture in the pans sticks together and is lost
for use as jellybeans, resulting in a monetary loss to the
Company. After the jellybeans have been grossed, they are
placed in other pans and polished, a process which removes
a film left on the beans in the grossing process.
In February, the Company had about 36 pans in the
grossing area and 36 pans in the panning or polishing area
of this department.4 In the grossing operation, an employee
classified as a grosser is assigned to about six pans, and has
a helper assigned to him. Similarly, in the panning operation,
one employee called a panner is assigned to a number of
pans and has one or more helpers assigned to him.
In the panning department, the line of supervision began
with two group leaders, Albaro Sancen and Isidro Segura,
who direct the work of the other employees pursuant to in-
structions given by higher management. They are working
leaders and are not considered supervisors. Their supervisor
is Plant Superintendent Richard Stengren. In the afternoon of
February 3, during a workshift, all of the pan department em-
ployees stopped work and went to the office of Stengren.
Stengren shares this office with his supervisor, Respondent’s
director of production, Jim Latham.
This group action originated with employees Jorge Silva
and Enrique Espinoza. Silva, an employee since 1984, was
employed in the pan department at an hourly wage rate of
$5.25 per hour. At a morning break, he was informed by em-
ployee Espinoza, an employee since 1982, that he had heard
on the radio that Respondent was offering new hires $4 to
$5 per hour, as opposed to the $3.35 they had received when
they were first employed. The matter was discussed with the
other pan department employees and they collectively de-
cided to go to the office to inquire about the matter and to
use the situation to ask for a raise. At Stengren’s office, only
Silva and Espinoza entered and related the employees’ con-
cerns.5 The other employees who had stopped work waited
in a group outside the office. Silva and Espinoza may have
been the only ones in the group who spoke English.
After explaining their concern about the pay reportedly
being offered to new hires, the two employees were told by
Stengren that they were mistaken and were shown a pay card
for a new hire. This card reflected the normal starting salary
rather than the rumored higher salary. However, the employ-
ees were not allowed to see the date of hire or name of em-
ployee whose salary was represented on the card. The em-
ployees then asked for a raise. Stengren declined this request,
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 As will be noted later, several of these employees who spoke out were
remembered by Latham as having done so at the time they were discharged.
7 As pertinent, Mondragon, Flores, Leon, Martinez, and Rojas were all pack-
aging department employees or assigned to that department. Silva and
Espinoza testified that they overheard this meeting. There is also some dis-
agreement as to when the shift ended on Saturday, with the employee wit-
nesses testifying that it ended about 2:30 p.m. and the management witnesses
contending that it ended about 12 or 12:30 p.m. The employee timecards indi-
cate the correct time to be 2:30 p.m.
8 The 28 pan department employee timecards show that 15 employees did
not punch in or out, 8 employees punched out at approximately 2:30 p.m., and
5 worked until approximately 6 p.m. Further, only one timecard from the
group of five cards punched out at approximately 6 p.m. indicates that an em-
ployee punched out at approximately 2:30 p.m. and returned to work.
9 Both Silva and Espinoza were responsible for certain pans on this day.
They both credibly testified that they left no candy in their pans when they
ceased work on February 4.
10 Silva recalled an incident at Respondent’s Skokie plant where he worked
shortly after becoming employed by Respondent. There the pan department
employees went to management asking for a raise. The request was refused
and no employee was disciplined because of the incident.
11 This statement attributed to Segura is an obvious error in the transcript
and I do not have independent recollection of what the witness actually said.
However, this conversation did not play a role in the discharge of Silva and
is not deemed significant in that regard. However, both Silva and Espinoza
testified that this encounter with Stengren also involved group leader Segura,
whereas Stengren remembered it was with group leader Sancen. I consider this
to be significant because Sancen was only given a 1-day suspension for stop-
the employees apologized for taking his time, and they re-
turned to work. This work stoppage lasted about 10 minutes.
2. The packaging department work stoppages
In February the packaging department employed about 80
people. This department utilizes six to eight machines to
pack the finished candy into containers of various sizes,
ranging from a 30-pound bulk container to small 2- or 3-
ounce packs. The packs are placed by employees into con-
tainers which contain from dozens to hundreds of packs. In
the packaging department there are machine operators, which
is a relatively skilled position. These persons operate a
Hayssen packaging machine, which evidently requires sub-
stantial training to achieve proficiency. There are also less
skilled positions for packers, and employees who handle bulk
candy called dumpers.
On February 3, after the work stoppage by the pan depart-
ment employees, the entire packaging department stopped
work and sought out Director of Production Latham, but
were told by the packaging superintendent to return to work
as Latham was not in his office. Later that day, the 80 pack-
aging department employees again stopped work and Latham
addressed them. Latham does not speak Spanish and utilizes
an interpreter to speak with the employees. On the occasion
in question, Javier Gonzales, a supervisor in the packaging
department, served in that role. Anything said by the em-
ployees at this meeting in Spanish was not understood by
Latham unless Gonzales translated. Because of the large
number of workers who had been forced from the plant by
INS, a number of the packaging department workers were
new hires. Latham estimated that they would have made up
less than one-half of the packaging department complement
on February 3. The gathered employees asked Latham
whether new hires were receiving higher starting salaries
than they had received when they were hired. Through var-
ious individuals who spoke out, they also asked for a raise
in pay, complained about the length of shifts, and pay for
Saturday and Sunday work.6
Several of the employee witnesses who attended or over-
heard this meeting testified that Latham responded to the em-
ployee concerns by telling them that he would talk with
higher management about the requested raises and report
back to them on the following Tuesday. He also agreed to
reduce the number of hours to be worked by packaging de-
partment employees the next day, Saturday, and eliminated
the work schedule for that Sunday. Latham did not remember
making such a response. I credit the employee witnesses’
version of Latham’s response. He was shown to have author-
ity to recommend raises for employees and to independently
set production standards and hours for employees. The record
reflects that the packaging department schedule for the next
day was changed to an 8-hour shift instead of the normal 12-
hour shift.7 After Latham’s meeting with these employees,
they went back to work and completed their shift. They also
completed their Saturday shift, stopping work about 2:30
p.m., rather than at the normally scheduled time of 6 p.m.
3. The Saturday walkout by the pan department
On Saturday, February 4, the pan department employees
stopped working several hours before their shift was sched-
uled to end and left the plant. The pan department employees
were scheduled to work from 6 a.m. to 6 p.m. About 12:15
p.m., Stengren was in his office and group leader Sancen
came in and told him pan department employees were going
home.8 Sancen did not know why the employees were leav-
ing. Stengren left his office and went to the pan department.
He testified that he found just a few of the department’s em-
ployees still there, and the pans had been shut down with
candy still in them.9 He then proceeded to the employee
locker room where he encountered a number of employees,
many of whom he did not know as they were newly hired
employees. He did recognize Sancen and the two employees
he had spoken with the day before, Silva and Espinoza. He
asked Espinoza why he was going home, and Espinoza re-
plied, ‘‘Well, we just want to go home.’’ Stengren then testi-
fied that he asked group leader Sancen why he could not get
the employees to stay and Sancen said, ‘‘[W]hat am I sup-
posed to do?’’
According to Silva, the purpose of the work stoppage was
to put pressure on the Respondent to give the workers a
raise. He testified that he and Espinoza encouraged the job
action. Silva testified that it was his understanding that if the
pan department engaged in a walkout or other job action
concertedly, the Company could do nothing about it. He be-
lieved the Company would have to give them the requested
raise in order to have its candy produced.10 The walkout
might well have been precipitated or at least encouraged by
the fact that the packaging department employees were being
allowed to leave work early. The timecards introduced in this
record reflect that the pan department employees who walked
out left about the same time as the packaging department
employees. Shortly after the work stopped he and other pan
department employees were approached by Stengren and Su-
pervisor Segura. Stengren asked why they were not working
when the shift was not scheduled to end until 6:15 p.m. No
one answered. He testified that Segura then asked if the em-
ployees wanted to go home, and Silva said yes. Segura then
said, ‘‘There he go.’’11
853FARLEY CANDY CO.
ping work on Saturday while Silva and Espinoza were terminated for this ac-
tion. Respondent’s reason for the disparate treatment was that Sancen was not
told by Stengren not to leave whereas Silva and Espinoza received such in-
struction. No discipline whatsoever was given to Segura, although he too evi-
dently left work on Saturday and did not return. Thus either Sancen received
instructions not to leave and did so, and received disparate treatment, or
Segura received the instructions and left and received disparate treatment, no
punishment at all. Espinoza also testified that Stengren in this conversation or
one shortly after, but before he left the plant, told him that he was going to
give him a shorter shift and would not give him any more Saturday work. This
testimony was not contradicted; however, I do not credit this assertion. It
would have been very difficult, if not impossible for management to give one
employee a different schedule than the other employees on his shift. Moreover,
Espinoza was shown to have wanted to work as many hours as possible be-
cause he needed the pay.
12 Stengren testified that at the time of his encounter with employees at the
timeclock, Sancen had left. Stengren did not identify the number of employees
he threatened with discharge nor whether the employees retrieved by Toro
were among the group. There was no showing that Stengren at any time at-
tempted to ascertain the identity of these employees or determine whether they
spoke English.
Stengren then tried to call his supervisor, Latham, but was
unable to reach him. An attempt to reach higher management
also failed. While he was on the phone he observed employ-
ees leaving the locker room and going to the timeclock to
punch out. Stengren left the phone and went to the timeclock
area, where there was a group of pan department employees.
In this group the only employees he knew were Espinoza,
Silva, and another employee called Toro. In English he told
the entire group that if they left, it was like they were quit-
ting their employment. There was no response from the
group of employees who left. However, Toro came back and
asked him what he should do. Stengren replied, ‘‘Well, all
I can tell you is these people will be taken care of Monday.
We will make some decision. As far as I am concerned,
when somebody punches out when they are not supposed to,
and goes home. Well, to me, it is considered quitting.’’ He
then asked Toro to go out in the parking lot and try to per-
suade some of the departing employees to return and salvage
the candy left in the pans. Toro went to the parking lot and
returned with six or seven employees Stengren did not recog-
nize. They went to the pan department and straightened up,
so that no candy was lost. Toro and the other returning em-
ployees finished out the shift.12
C. The Interviews with Employees on Monday,
February 6
1. Respondent’s reasons for the interviews and its
decision to discharge and/or discipline
On Monday, February 6, a management team consisting of
Stengren, Latham, Vice President of Manufacturing Glenn
Brown, and Packaging Supervisor/Translator Jose Lopez met
with certain employees who had engaged in the concerted ac-
tivity of February 3 and 4. Stengren testified that the em-
ployees, about 20 in all, were called in to ‘‘see what the big
problems were.’’ He testified that the employees complained
primarily about the fact they had heard on a radio station that
the Company was hiring new employees at $4–$5 per hour.
Additionally, some complained about having to work on
Sundays. Stengren testified that in general, Respondent ter-
minated the alleged discriminatees because, ‘‘These people,
we felt that just by talking to them that they were disruptive.
They did not like the money they were working for. Some
of them didn’t like to work the Saturdays. Some of them
didn’t like to work the Sundays, which were not that often.
I think at that time we did work a few, but not that many.
And we figured that we didn’t want anymore work stop-
pages, because we can’t afford to have them. We were
busy.’’
With respect to the employees who participated in the
work stoppages and who were interviewed on February 6,
but who were not disciplined in any way, Stengren testified,
‘‘[W]e took them in my office, and nobody seem to be dis-
agreeing with anything. The wages, they didn’t complain
about. We told them about the $4 to $4.50 on the Spanish
radio. And there was no complaint about that. And they
agreed they were going to go back to work, and no prob-
lems.’’
Latham testified that the employees were terminated be-
cause they did not want to accept company policy and it
looked like they were going to be disruptive. He stated that
the management team talked to 15 to 20 employees and most
were agreeable to company policies, but some of the people
were argumentative and would not accept these policies. He
said that the persons interviewed were allowed to ask ques-
tions at the meeting. He did not recall any of the employees
interviewed saying that they were speaking on behalf of a
group. He testified that personal wages was the main concern
of those employees interviewed, with some concerned about
the hours of work on Saturday and Sunday. What the em-
ployees said in their interviews was a part of the decision on
whether or not to terminate the employees. Management did
not terminate interviewed employees who were not argumen-
tative and whom management felt would not repeat another
work stoppage and would adhere to company policy. It did
terminate those employees who they felt would not adhere to
company policy and would be disruptive.
Stengren testified with respect to the selection process for
interviews on February 6, ‘‘We didn’t have any specific rea-
son for any of them. We just pulled [them] in to find out
what the problems were, and what they were and why they
did this. There was no special [reason].’’
Latham agreed that the persons selected to be interviewed
from the packaging department were taken at random with
no particular reason for selecting a particular employee. He
testified that management did not call in all employees who
had participated in the work stoppages to see if any others
shared the bad attitude traits with those employees termi-
nated because they felt like they ‘‘had the issues.’’
After the terminations were final, Stengren talked with Re-
spondent’s personnel department and with its general coun-
sel, Michael Gotkin. Respondent’s General Counsel Gotkin
testified that he learned of the firings after they had taken
place. He testified that he conducted an independent inves-
tigation, talking to a number of management individuals in-
side the Company. Gotkin originated the language shown on
the individual employee’s termination reports as the reason
given for termination and the additional comments based on
this investigation. At some unspecified point in time, he
asked Stengren and Lopez to write up recollections of what
happened and put them in the files. Presumably this is how
certain ‘‘notes’’ were placed in Mondragon’s and Rojas’
files. In preparing the language used in the termination re-
ports and directing preparation of the ‘‘notes,’’ Gotkin took
into account specific kinds of issues and concerns, issues and
concerns that Gotkin had either learned or been reminded
might be relevant down the road by outside counsel hired for
this proceeding. All the material generated by Gotkin was
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
placed into the personnel files after April 27, a date subse-
quent to the filing of charges in this proceeding.
In this regard, the ‘‘Reason for Termination’’ and ‘‘Addi-
tional Comments’’ sections of the termination reports for em-
ployees Jorge Silva, Enrique Espinoza, Onesimo Rojas, Mi-
nerva Flores, and Feliciano Martinez are virtually identical.
These entries, generated by Counsel Gotkin, read as follows:
Reason for Termination: Disruptive and threatened
not to work if he [she] did not get a raise.
Additional Comments: He (she) was informed that
there had been no change in starting salaries or raise
policies since he (she) started to work. We did not be-
lieve that he (she) represented any group of individuals
asking for an increase in pay, but he (she) was merely
trying to get an increase in his (her) own personal pay
before he (she) was entitled to do so.
It must be noted with respect to Respondent’s contention
that the terminated employees did not want to work or to
continue to work under existing conditions that all of them
reported to work on February 6, or in the case of Flores, on
February 7, and none of them requested to speak with man-
agement or volunteered to management before their interview
that they had any intention of quitting.
Employees Pablo Calderon, Dagoberto Ramirez, and
Agustin Ayala are machine operator group leaders in the
packaging department. They were given 1-day suspensions
for their part in the work stoppages. Stengren testified that
these three employees were not terminated because they were
forced to shut down their machines when the packers quit
packing. About four to seven packers are assigned to each
packing machine. The reason they were given any discipline
was that management felt they should have been able to con-
trol the packers working on their machines. Machine opera-
tors are not considered supervisors by Respondent. Panning
department group leader Albero Sancen received similar dis-
cipline for his part in the stoppages. Stengren testified that
he was not fired for leaving with other pan department em-
ployees in the Saturday walkout because he was not specifi-
cally warned, as were certain other employees. None of the
group leaders named above expressed any dissatisfaction
with the Respondent’s wages or policies in their interviews.
Latham testified that management did not talk with all ma-
chine operators on Monday, that they were selected at ran-
dom. However there were only six or seven packing ma-
chines at that time and so only six or seven operators were
on the shift at which the work stoppage occurred. He talked
with the following machine operators: Agustin Ayala, Jesus
Nava, Dagaberto Ramierez, Pablo Calderon, Ramon Leon,
and Onesimo Rojas. Other machine operators mentioned in
the record are Ernesto Arias and one called Olvero. It was
not shown whether these two were called or not.
With respect to the terminations, no consideration was
given to the employees length of service or prior record with
the Company with regard to disruptive behavior. At the
Company’s Belmont plant, there were also work stoppages
on February 3. There is no evidence that any employees
were disciplined for participation in those job actions. Ac-
cording to Latham these stoppages occurred because of em-
ployee concerns over the wage rate being paid to new hires.
Other than the employees named above who were termi-
nated or given a 1-day suspension, four other employees
were interviewed on February 6 and given no discipline.
Stengren testified that these individuals were forced to par-
ticipate in the work stoppages; however, no explanation was
given as to how or by whom they were so ‘‘forced.’’
2. Evidence relating to individual discharges
In addition to the evidence discussed above relating to the
disciplinary action in an overall context, relevant evidence
was adduced with respect to the specific interviews with the
discriminatees and specific reasons for their discharges. This
evidence will be discussed below under subheadings for the
involved employee or employees.
a. Adela Mondragon
Adela Mondragon was first employed by Farley on August
10, 1987. She worked in February 1989 as a packer in the
packaging department. She was assigned to help on the pack-
ing machine operated by Agustin Ayala. She testified that on
February 3, the packaging department went to the office to
ask for a raise, but were told to return to work which they
did. Later, Jim Latham came and addressed the department.
Through an interpreter, he asked what was wrong. One or
more employees said that they wanted to talk about a raise
and about better working conditions. She testified that
Latham replied that he could not grant a raise and would
have to talk with other people. He also said the work hours
were final.
On February 6, Mondragon learned in the morning that
two fellow employees had been fired. She was then called
to the office for an interview and asked if she had partici-
pated in the group action on Friday. She said that she had
done so to ask for a raise. Brown then told her she was sus-
pended for the rest of the day. Mondragon said she was sorry
she had participated in the group activity. She then went
home. At 4 p.m. that day, she was called at home by Lopez
who told her that the Company had decided that she was mo-
tivating and encouraging the group and she was fired.
Regarding Mondragon, Latham testified that he remem-
bered her from the Friday packaging department meeting. He
remembered her saying that she did not want to work the 12
hours and wanted double time for Sunday. Regarding the
Monday interview session, his recollection of specific state-
ments was vague, but he remembered that she thought she
should get more money and that she did not want to work
on Sundays for less than double time. Latham remembers
telling her that ‘‘When we hired these people, we tell them
that if you don’t want to work long hours, and you don’t
want to work an occasional Sunday, then Farley Candy is not
the place to work.’’ He said she was not satisfied with this
answer and renewed her request for a raise. He stated that
she was persistent. He also testified that she was not sus-
pended as she testified, but was terminated at the time of the
interview. This testimony is contradicted by ‘‘notes’’ alleg-
edly made of this meeting by Stengren and lends credibility
to Mondragon’s version of the events surrounding her dis-
charge. Further, given the difficulty that Respondent’s wit-
nesses exhibited in remembering specifics of the employee
interviews, the fact that I find the ‘‘notes’’ of Mondragon’s
interview were made at a time after the interview, and the
855FARLEY CANDY CO.
fact that I find her a more credible witness than Respond-
ent’s management witnesses, I credit Mondragon’s version of
the events in question over that given by Respondent’s wit-
nesses. Specifically, I credit her testimony about Respond-
ent’s motivation for her termination as related to her in her
conversation with Supervisor Lopez, who was not called as
a witness.
The reason given on her termination report for her dis-
charge is ‘‘threatened to walk out if she did not get a raise.’’
Notes of Mondragon’s interview, taken by Stengren state:
This employee was interview[ed] at 9:26 a.m. Feb-
ruary 6, 1989. She was a packer in the packaging de-
partment. She stated she wanted more money for herself
and for other people in the packaging department since
they worked harder than anyone else in the Company.
She said she would like to work but that she intended
to walk out if she did not get an increase in pay. She
appeared to be very determined.
We told her that she had been misinformed if she
had heard any information on the Spanish language
radio stations saying that new employees will receive
more money. We told her that our starting salaries had
not changed and that all people would be judged with
their regular salary reviews and for merit increases. She
still stated she was not satisfied. We therefore deter-
mined to initially suspend her and we later decided to
terminate her as an employee, since it was obvious she
did not have any intention to return to work and was
disruptive to her fellow employees. It was our opinion
that she was acting only for herself and not on behalf
of her fellow employees.
Stengren testified that Mondragon ‘‘was the one that the
attitude and the problems she had was with the money. And
she just didn’t want to follow our company policies, how we
were giving money, we give our annual raises. But she didn’t
want to follow our policies. So we felt that the only alter-
native we could do [was to fire her].’’ He further testified
that she did not indicate a willingness to work under the
wages, hours, and conditions that prevailed in the plant.
As noted, Latham testified that the employee interview se-
lection process was a random one with respect to the pack-
aging department employees. In response to the question of
whether Mondragon, and presumably any other packaging
department employee, had not been selected for an interview,
would she have been terminated, Latham responded, ‘‘Prob-
ably not.’’
b. Ramon Leon
Ramon Leon was a packing machine operator. Stengren
prepared notes of the interview of Ramon Leon which state:
I attended a meeting with Ramon Leon. Also present
was Glen Brown, Jose Lopez and Jim Latham. This
employee was interviewed at 1:24 pm on Feb. 6, 1989.
He is a Hayssen machine operator.
He stated that he had been informed by a Spanish-
language radio station that we were hiring new employ-
ees at between $4 and $4.50 per hour. He said he was
very upset by this fact and he want[ed] 50 cent hourly
increase for himself and for others in his department.
We informed him that this information that he heard
over the radio was totally incorrect. That we had not
changed our initial starting salaries from $3.60 per
hour. This was the amount we paid people who had no
level of skills as an incoming wage. He stated that
since the Immigration had come in and we were low
on people he wanted to get a raise and he wanted dou-
ble time for Sunday. We felt that after we explained to
him he was misunderstanding, and that in fact we only
paid time and one half overtime pay for Sundays, he
further stated that he was not satisfied and he felt he
would walk out if other employees walked out with
him.
In an effort to retain him as an employee we offered
him a 50 cent hourly increase after the next two months
had passed. This would represent about a 6 month ac-
celeration in the time he would normally come up for
such an increase in a regular review. This, he refused.
We felt he was disruptive and did not desire to go
back to work under the same working conditions as
other employees. We did not believe he was sincere or
truthful in his claim to represent any other employees
who felt the same way. He did not say that he represent
any other employees who felt the same way. He did not
say that he represented any union, was organizing for
any union and he had no written petition to represent
any other employee.
Since he also threatened a slow-down by himself, we
terminated him at 2:05.
I believe these notes were prepared some time after the
interview with Leon as they clearly appear to be prepared for
defense of the charges filed in this case by the Union. They
address legal issues of protected concerted activity and union
activity. Stengren testified that management had no knowl-
edge of any union activity at the time of the work stoppages
and the terminations. Indeed, there is no credible evidence in
the record that the Union was attempting to organize at the
time period in question. Thus, it appears to me that the ref-
erence to union activity was prompted by the filing of the
charges by the Union. I believe that an after-the-fact recon-
struction of events such as the ‘‘note’’ above are actually
more a rationalization of why actions were taken and I ac-
cordingly view them with some considerable skepticism.
With respect to Ramon Leon, Latham testified that he was
called in for the interview and told management he would
slow down if he did not get a raise. Management offered him
a raise and he refused the raise unless his machine crew also
received a raise. At this point they fired him. ‘‘We told him
that he couldn’t work. That he was going to be disruptive,
because he wanted a raise for the people on his machine, too.
He felt that they were working hard.’’
Mondragon and Leon are the only discriminatees for
whom ‘‘notes’’ were prepared and I believe that they were
the only discriminatees who were actually interviewed in any
depth. The other discriminatees appear from the credible evi-
dence to have been summarily terminated upon arriving at
their ‘‘interviews.’’ Stengren testified that none of the em-
ployees interviewed stated that they were acting for a group
of employees. This position is obviously contradicted by the
only ‘‘notes’’ of the interviews and which ‘‘notes’’ were os-
tensibly prepared by him. I believe to the contrary, manage-
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment was seeking out those of its employees who might be
leading the other employees or encouraging the employees to
seek a wage increase and better working conditions. This be-
lief is supported by the evidence relating to the termination
‘‘interviews’’ of the other discriminatees.
c. Onesimo Rojas
Onesimo Rojas, a packaging machine operator, testified
that on February 3, the machine operators got together and
agreed to ask for a raise. At the meeting, Latham said an an-
swer would be given the following Tuesday. He also sup-
ported the testimony that the employees only wanted to work
8 hours that Saturday and none on Sunday. On Saturday,
February 4, Rojas testified that he was approached by his su-
pervisor, Gonzales, and told not to ask for a raise because
he would be fired if he did. On Monday, he was told to go
to the office, where he was terminated together with fellow
discriminatees Silva, Espinoza, and Martinez. All that was
said to him was that he was no longer needed. Rojas had
personally asked for a raise shortly before the incidents in
question.
Stengren recalled that Rojas was ‘‘probably more
objectional [sic] than any of them. That his big complaint
was the hours on Saturday. He didn’t want to work a lot of
hours on Saturday. He didn’t want to work Sundays at all.
And here again, was the money issue.’’ Latham recalled
Rojas saying he would not work 12 hours on Sunday without
double time pay.
Rojas is one of the employees Latham remembered speak-
ing out in the Friday work stoppage. He recognized Rojas as
being a person who stated that he would not work on Sunday
for less than double time, and if he did not get a raise, he
would not work as hard. At the interview session, Latham
testified that Rojas was asked why he deserved a raise and
Rojas’ reply was that he worked hard. According to Latham,
Rojas also repeated his position on Sunday work. I credit
Rojas’ testimony that he was summarily terminated without
questioning. No ‘‘notes’’ of this interview session were intro-
duced as they were with respect to Leon and Mondragon. All
four of the discriminatees terminated in this joint ‘‘inter-
view’’ session testified credibly that they were not ques-
tioned, but were simply told their services were no longer
needed by Farley. I believe that Rojas was terminated be-
cause Latham did in fact remember what he said in the Fri-
day work stoppage and considered him a leader or instigator
of the job action. This view is further supported by Super-
visor Gonzales’ warning given to Rojas on Saturday.
Gonzales did not testify in this proceeding.
d. Jorge Silva and Enrique Espinoza
On Monday, February 6, when they reported for work nei-
ther of these employees’ timecards was in its normal place.
They went to Supervisor Segura, who had them and did not
want to give the cards to the two employees. He then threw
the cards at them and told them to punch in, saying that
when the ‘‘old man’’ comes in, you can talk to him. At their
morning break, Silva and Espinoza were told to report to the
office. Rojas and Martinez also reported to the office at
about the same time. Silva testified that Lopez asked Rojas,
‘‘What did you do?’’ Latham then said, ‘‘The company
doesn’t need you anymore.’’ These employees then got their
personal items and punched out.
Concerning the Monday interview, Espinoza testified that
upon entering the interview, he asked Lopez what was hap-
pening, and Lopez responded, ‘‘I don’t know what you did,’’
and Espinoza said, ‘‘we didn’t do anything.’’ Silva was with
him at this time. Then two other employees arrived, Rojas
and Martinez. Latham then told the group, ‘‘The reason for
this meeting is to tell you that we don’t need your services
anymore.’’ The employees asked for a reason but were not
given one.
Stengren testified that both Silva and Espinoza had a prob-
lem with wages, which surprised him as he had spoken with
them about this issue on Friday and believed he had straight-
ened out the matter with them at that time. He considered
Espinoza ‘‘destructive with the work stoppage.’’ Regarding
the pan department employees, only Silva, Espinoza, and
group leader Sancen were called in for interviews. Latham
testified that the only pan department employees called for
interviews were those spoken to by Stengren at the timeclock
as they were leaving early on Saturday. Latham’s view of
these employees was different from those in the packaging
department as he considered them to have quit. This asser-
tion lacks merit in my opinion as Respondent made no at-
tempt to identify or interview any of the other employees
warned by Stengren at the timeclock and as Respondent
chose to treat group leaders Sancen and Segura in a disparate
fashion. I believe the true reason for the terminations of
discriminatees Silva and Espinoza is found in the testimony
of Stengren. Espinoza and Silva ‘‘were destructive with the
work stoppage’’ in that they were the spokespersons for the
pan department employees in pressing their demands.
e. Feliciano Martinez
Feliciano Martinez was employed by Respondent in Feb-
ruary 1989 as a janitorial employee assigned to the pack-
aging department. He left work on Saturday the 4th with the
other packaging department employees. He testified that
Stengren had told a group of employees leaving that they
could be fired if they left. Some then returned to work. On
Monday, he was called into the management meeting with
Silva, Espinoza and Rojas and told he was no longer needed.
Although there was evidence that janitorial or sanitation
workers have their own supervisor, it was also noted that
their hours were not fixed and they would not necessarily
work the hours of the department to which they were as-
signed. There is no showing in the record as to what hours
Martinez was supposed to work on Saturday.
Stengren remembered that Feliciano Martinez did not be-
lieve what management told him in his interview and did not
agree. He testified that the decision to terminate this em-
ployee was made based on his attitude in the interview. He
stated that Martinez did not say he was speaking on behalf
of a group when he expressed disatisfaction with his wages.
Martinez testified credibly that he was not asked any ques-
tions by management in the ‘‘interview’’ session, but was
summarily terminated together with discriminatees Silva,
Espinoza, and Rojas. Therefore, Martinez in my opinion was
the unlucky employee who was called in for an interview at
the wrong time. He does not fit into any category for termi-
nation. He was not terminated for leaving the plant on Satur-
day after being warned and was not shown to have been rec-
857FARLEY CANDY CO.
13 See generally MCI Mining Co., 283 NLRB 698 (1987); Meyers Indus-
tries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835
F.2d 1481 (D.C. Cir. 1987); Daniel Construction Co., 277 NLRB 795 (1985);
Meyers Industries, 268 NLRB 493 (1984) (Meyers I); NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962); Cargill Poultry Co., 292 NLRB 738
(1989); Modern Iron Works, 281 NLRB 1119 (1986); Holiday Inn, 274 NLRB
687 (1985).
ognized as a person speaking out in the Friday work stop-
page. Thus the only reason he could have been fired was for
participating generally in the work stoppage and for having
been called for an interview at the same time as the three
discriminatees that management had targeted for dismissal.
His selection for the ‘‘interview’’ process may well have
been caused by the fact that though he was assigned to the
packaging department on Saturday, February 4, he was part
of the maintenance department, and had different supevision.
Leaving early on Saturday with the other packaging depart-
ment employees may have seemed logical to Martinez, but
would have been noted by his supervisors as he was the only
maintenance employee shown to have left work early.
f. Minerva Flores
Minerva Flores testified regarding the February 3 pack-
aging department meeting that she together with fellow em-
ployees asked for a raise. Latham said he would give an an-
swer about raises on the following Tuesday, and the group
agreed that was okay. Flores did not work on Monday, Feb-
ruary 6, but reported for work on the February 7. After
working about 2 hours, she was told to report to the office
where she met with her supervisors, Roger Nineman and
Javier Gonzales. Gonzales told her that they did not need her
anymore. She asked whether she was being fired because she
asked for a raise. Gonzales said that everyone wanted a raise
and that she just was not needed anymore. Neither supervisor
who interviewed Flores testified and her testimony is not di-
rectly contradicted. I find her a credible witness and credit
her testimony about the matters set out above.
Latham testified that Minerva Flores was terminated be-
cause she insisted on a raise and would not continue working
unless she got one. For the same reasons that I do not credit
this general assertion with respect to the other packaging de-
partment discriminatees, I discredit it with respect to Flores.
I do find that she was fired for asking for a raise, but for
so asking at the Friday work stoppage, not in the subsequent
‘‘interview.’’
D. Analysis and Conclusions
As found in detail above, on February 3, virtually all the
day shift employees of the Respondent’s pan and packaging
employees stopped work concertedly. The pan department
employees as a group went to Supervisor Stengren’s office
where, through the two employees shown to speak English,
complained of a reported higher starting wage being paid to
new hires than existing employees had received, and re-
quested a raise. These complaints were acknowledged by
Stengren, who attempted to dispel the employees’ concerns
about pay to new hires, but did not agree to the requested
raise. The same day, the entire packaging department stopped
work twice, seeking on each occasion an audience with Di-
rector of Production Latham. The first stoppage lasted only
a few minutes as Latham was not in the plant. On the occa-
sion of the second stoppage, Latham addressed the assembled
employees and through an interpreter inquired as to the rea-
sons for the stoppage. He was told by various of the assem-
bled employees, including several of the discriminatees about
the employees’ joint concerns about the reported wages
being offered to new hires, about the length of shifts, about
Saturday and Sunday shifts, about overtime pay for this
work, and about the employees’ desire for higher wages. In
response, he offered to look into the matter of a wage in-
crease with higher management, and acceded to the request
for shorter workshift for the following day, Saturday, and for
no Sunday schedule that week.
None of these stoppages was shown to involve threats by
employees, disruptive behavior by employees, or any sort of
danger to the plant or its personnel. They were of short dura-
tion, approximately 10 minutes, regarding the pan department
and less than an hour with respect to the packaging depart-
ment. After each, the employees of the affected departments
resumed their normal work activities. No threat of reprisal
was made by management and on the contrary, the pack-
aging department employees were promised an answer to
their requests by the following Tuesday.
On the next day, Saturday, February 4, the packaging de-
partment employees were dismissed early, as promised the
previous day. The pan department employees, to underscore
their unaddressed wage increase request, stopped work and
left the plant about the same time. Stengren threatened a
group of pan department employees, which included
discriminatees Espinoza and Silva, that if they left the plant
they would be considered as voluntary quits. The employees
in this group left in spite of this threat. A few unidentified
pan department employees returned that day at the urging of
Stengren and a fellow employee and finished the shift. None
of these job actions involved disruptive or abusive behavior
by the employees, nor were threats made that such job ac-
tions would continue in the future. There was no harm done
to the physical plant nor was any such harm threatened. Ex-
cept for the refusal of the group of pan department employ-
ees to abandon their walkout and return to work, all employ-
ees engaged in the job actions followed management’s direc-
tive to return to work when told to do so. Even the walkout
cannot be viewed as a particularly disruptive act as the pan
department employees left work at the same time as the
packaging department employees whose request in this re-
gard had been granted by management. At the time of the
walkout on Saturday, management had not addressed the em-
ployees’ concerns about higher wages, overtime pay, or
weekend work, except to give the packaging department em-
ployees a shorter schedule for one weekend and promising
an answer to the wage request on the following Tuesday.
Clearly none of the job actions taken by the involved em-
ployees constitute unlawful sit down strikes or other prohib-
ited activity involving seizure of an employer’s facilities.
On the following Monday, Respondent’s management se-
lected certain employees, including the discriminatees, from
each involved department, brought them in for an ‘‘inter-
view’’ and discharged or otherwise disciplined those whose
answers to questions did not please them.
I find that the work stoppages of February 3 and 4 con-
stitute protected concerted activity within the meaning of the
Act.13 The employees acted concertedly by department and
pressed requests for better wages and working conditions. I
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 See Holiday Inn, 274 NLRB 687 (1985); City Dodge Center, 289 NLRB
194 (1988); MCI Mining Co., supra.
15 Further support for the conclusion that Respondent discharged the
discriminatees for their protected activity is found in the fact that it did not
consider the length of service or prior disciplinary or work record of any of
the discriminatees before discharging them.
16 This contention is wholly without merit. See Elston Electronics Corp.,
292 NLRB 510 (1989); Hugh H. Wilson Corp., 171 NLRB 1040 (1968); Mey-
ers II, 281 NLRB 882, supra.
further find that General Counsel has made a prima facie
case that the discriminatees’ protected conduct was a moti-
vating factor in the Respondent’s decision to terminate these
employees. For the reasons set out both above and below, I
find that the discriminatees’ protected conduct provided the
only motive for their discharges that is reasonably discernible
from this record. It is certain that the Respondent has failed
to show that the employees would have been terminated in
the absence of such conduct, and thus its actions were un-
lawful. Wright Line, 251 NLRB 1083 (1980).
Because of the varying positions Respondent takes on
brief, it is difficult to discern what its assertions are in this
respect. It does not contend, except with respect to
discriminatees Espinoza and Silva, that anything occurred on
an individual basis on February 3 and 4 which would result
in discipline. Indeed, it did not discipline or even question
in any manner the vast majority of employees who engaged
in the work stoppages and it offered no evidence of any ac-
tivity by any packaging employee on those dates, save for
voicing a request for higher wages and better hours, as a
basis for discipline. With respect to Silva and Espinoza, there
is no evidence that they were abusive or otherwise disruptive
during the walkout on February 4 or in the meeting on Feb-
ruary 3. The employer simply treated them as voluntary
quits, which it cannot lawfully do.14
As for the other discriminatees, I believe that speaking out
at the work stoppage on February 3 or giving the wrong an-
swers at the interviews on February 6 and 7 that determined
their fate. At this point one should consider the manner in
which employees were selected for the interview process.
Save for Espinoza and Silva, who were apparently targeted
for discharge before the interview for failing to heed
Stengren’s warning on February 4, Respondent takes the po-
sition that all other interviewees were selected completely at
random. If in fact this were the case, then certainly no indi-
vidual action taken by these employees in the work stop-
pages was a basis for their discipline. Further, as I have
found that discriminatees Martinez, Rojas, and Flores were
not questioned, there can be no reason for their discharges
other than merely participating in the job actions, a defense
not asserted by Respondent. On the other hand, the evidence
strongly indicates that management selected employees for
interviews based on its belief that those employees inter-
viewed were the organizers or instigators of the work stop-
pages. For example, I have found that machine operator
Rojas was warned by a supervisor that he would be dis-
charged if he continued to press for a wage increase. His
credible testimony that the machine operators were the orga-
nizers of the packaging department work stoppages is also
supported by the fact that management called in most of
them for interviews and gave them 1-day suspensions. The
relatively light degree of discipline meted out to the machine
operators is understandable in light of the difficulty manage-
ment would face if it had to replace these employees en
masse. Further evidence that management was trying to root
out the leadership of concerted activity is found in the testi-
mony of Latham, who admitted that he recognized several of
the interviewed packaging department employees, including
most of the discriminatees from that department, as persons
speaking out at the February 3 work stoppage. In either
event, whether the selection process was random or if it was
purposeful as I believe and find, the end result sought by
management was to forcefully and effectively chill the dis-
sent in its employee ranks by punishing those employees it
found to desire any change or improvement in existing work-
ing conditions.
Although I believe that it is clear from the record that Re-
spondent discharged the discriminatees for engaging in con-
certed protected activity, I will address the various defenses
offered by Respondent for its actions.15 On brief, the first de-
fense offered is that the only concerted activity taken by the
employees was to raise the issue of new hire pay. Respond-
ent does not acknowledge that the other concerns voiced by
the employees on February 3 should be afforded the protec-
tion of the Act because they were not the concerns of the
majority of the employees and were not concertedly made.16
Thus, having addressed the employees’ asserted misconcep-
tion about new-hire pay, the employer treats all other re-
quests made by the employees as individual only and not
protected. It asserts, inter alia, that certain employees piggy-
backed personal desires for higher wages and shorter hours
onto the general concern about new hire wages. Certainly the
matter of new-hire wages was the catalyst behind the em-
ployees’ concerted raising of their concerns. However, the
other concerns raised by the involved employees involved
protected subjects, wages, and working conditions.
These concerns were voiced collectively in the packaging
department work stoppage and on behalf of all the day-shift
pan department employees by Espinoza and Silva. There is
no credible evidence of record that these two discriminatees
were not speaking for all the pan department employees and
I find that they were, as they testified. The Respondent has
absolutely no way of knowing what the majority of its in-
volved pan or packaging department employees felt about the
concerns raised at the work actions because it selected only
a few to question about their concerns. Even faced with the
hostile environment of a first ever ‘‘interview’’ session with
high management officials, a majority or near majority of the
employees interviewed expressed the same concerns raised in
the group actions. Respondent’s argument that the inter-
viewed employees’ desire for a raise or other improvement
in working conditions, being made as necessary on an indi-
vidual basis, somehow removes the protection of the act
from their right to make the request is spurious. I find it dis-
ingenuous to assert that if a group demands higher wages
and that demand is protected as concerted activity, that pro-
tection is lost when individual members of that group voice
the same concerns upon being required to take a position
about their concerns by management.
The Respondent also cites a number of cases for propo-
sitions which have no meaning given the facts of this case.
It cites Board and court rulings to the effect that employees
cannot inflict economic harm on an employer which is un-
necessary to legitimate concerted activity, and employees en-
859FARLEY CANDY CO.
17 The Respondent contends that discriminatees Mondragon and Espinoza
would have been discharged at a later date because of INS rules. This has not
been established in this record and, in fact, does not seem to be the case. In
any event, their INS documentation admittedly played no part in the decision
to terminate them and is more properly a matter for consideration in any back-
pay proceeding held subsequently. Respondent’s argument at the hearing that
it surely would not have risked liability for firing someone if that person’s
employment would shortly end anyway is also unavailing. How better to make
a point to other employees than to fire one for ‘‘disruptive behavior,’’ know-
ing your backpay liability will be very limited. Respondent also objects to con-
sideration of the case of Leon as he did not appear at the hearing. I believe
that Respondent’s own evidence about this discriminatee establishes that he
was terminated for the same reasons as the other discriminatees and thus Re-
spondent was not unduly prejudiced by his absence.
gaging in deceitful, malicious, or disloyal activity lose the
protection of the Act. Examples cited of such activity are
disloyalty and bad-faith conduct, such as divisive actions di-
rected at irritating and alienating customers and for the pur-
pose of spreading rumors throughout the company. None of
Respondent’s employees engaging in the work stoppages was
shown to be disloyal, deceitful, malicious, or to have taken
any divisive actions such as those mentioned by Respondent.
Similarly, there is absolutely no evidence of any threatened
or attempted sabotage of product by employees, a concern
voiced by Respondent on brief.
Regarding all discharged employees except Silva and
Espinoza, Respondent contends on brief that they were dis-
charged because they ‘‘articulated personal requests for
raises and issues relevant to their individual employment
with Farley. Each of these employees directly refused to ac-
cept the established company policy regarding wage in-
creases and instead threatened to cease work and/or to termi-
nate their employment unless the company essentially
capitulated to their personal requests for pay increases. They
indicated no intention to abandon their disruptive unprotected
behavior. These employees did not represent the collective
interest or concerns of other workers, but rather seized the
moment to insist upon improved individual treatment-per-
sonal pay increases against the background of an unsubstan-
tiated rumor circulating throughout the workplace. While vir-
tually all the other employees (99 percent plus) accepted
Farley’s explanations, these employees did not do so nor did
they investigate the rumor directly. Instead, management’s
attempts at dispelling a rumor were met with hostility, insub-
ordination, and ultimatums on the part of these individ-
uals.’’17
I have found that the employees’ demands on February 3
and 4 constituted concerted protected activity and that voic-
ing these demands or concerns in the interview sessions was
also protected. I have further found that the Respondent did
not know what the majority of its pan and packaging depart-
ment employees wanted and thus cannot truthfully assert that
the discriminatees did not reflect the collective concerns or
interest of the other workers in those departments. The only
discriminatees that I have found that Respondent actually
interviewed, Mondragon and Leon, both expressed the desire
for their fellow employees’ wages to be increased in addition
to their own. Respondent likewise cannot know what the un-
disciplined employees accept with regard to its policies, only
that its disciplinary action against a few has successfully
squelched any expression of their feelings. I have also found
that the matter of the new hire pay rumor was not the only
legitimate protected concern raised by the employees and
that management cannot ignore that legitimacy of the other
concerns expressed by firing those employees who voiced
such concerns.
Again, it must be noted that no employee volunteered to
be interviewed or requested the further meeting with manage-
ment at which disloyal or disruptive statements were alleg-
edly made. All discharged employees showed up for work as
scheduled and none gave any indication of a further desire
to engage in work stoppages or to cease employment if the
matters raised on February 3 and 4 were not addressed. Any
such statements, if made at all, were in the context of a man-
agement mandated interview when the employee was called
in, in Stengren’s words, ‘‘to see what the big problems
were.’’ I do not find from the credible evidence that any dis-
charged employee voluntarily quit Farley’s employment, or
threatened to cease work. The so-called reasons for dis-
charge, notes of interviews, and comments about the dis-
charges found in the discriminatees files were prepared at the
direction of company counsel after the interviews and clearly
in anticipation of this legal action. Thus I cannot find that
there is evidence that the discriminatees planned or engaged
in a series of intermittent strikes against the Respondent.
That Respondent chooses to believe that any employee, like
the discriminatees, who voices a desire for higher wages or
better working conditions, will be disruptive or fail to follow
company rules in the future does not make it so.
With respect to Silva and Espinoza, Respondent contends
on brief that they were discharged predicated ‘‘upon these in-
dividuals’ outright insubordination and disruption of the
workplace.’’ ‘‘Although initially part of a small group, these
employees were selected by management to relay informa-
tion concerning the rumors concerning the alleged statement
made on the radio broadcast and did not approach the Com-
pany as representatives of any group of employees.’’ I dis-
agree and find that in the February 3 work stoppage, Silva
and Espinoza did act on behalf of the other pan department
employees. Moreover, there is no evidence of record of any
‘‘outright insubordination or disruption of the workplace’’ by
these employees individually. The only action they took was
to speak for their fellow employees and join them in the part
day walkout. Respondent’s director of production, Latham,
testified that they were discharged because they voluntarily
quit by ignoring Stengren’s warning to that effect when they
left the plant on February 4. I have already found this de-
fense wanting, and to the contrary, find that they were termi-
nated as perceived leaders of the other employees in their
concerted activity and to restrain or coerce the other employ-
ees in their exercise of Section 7 rights.
Therefore based on the evidence I have found credible and
for all the reasons set forth above, I find that Respondent
discharged the discriminatees in violation of Section 8(a)(1)
of the Act.
E. The No-Solicitation, No-Distribution Rule
The Respondent takes no position on brief with respect to
the complaint allegation that its Spanish language version of
its no-solicitation, no-distribution rule is overly broad. Al-
though the question is reasonably close, I believe that in light
of Respondent’s very serious violation of the Act as found
above, abundant caution should be taken to ensure that its
employees are correctly advised of their rights in this impor-
tant regard. The involved rule was posted at Respondent’s in-
volved facility in January and February 1989. The rule pro-
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
hibits solicitation during ‘‘horas du trabajo,’’ which the Gen-
eral Counsel had translated to ‘‘hours of work.’’ The Re-
spondent’s translation for the same term is ‘‘working hours.’’
Under either translation, the General Counsel contends that
the rule is unlawful, as it encompasses nonworking areas of
the Respondent’s facility. Citing Our Way, Inc., 268 NLRB
394 (1983); Beth Israel Hospital v. NLRB, 437 U.S. 483
(1978).
In May or June 1989, Respondent distributed a handbook
containing revised rules to its employees, including a revi-
sion of the involved rule. However, the General Counsel con-
tends that the distribution of the handbooks failed to effec-
tively repudiate the prior overly broad and vague rule, in that
Respondent failed to inform the employees that its previous
no-solicitation, no-distribution rule was no longer in effect.
Further, General Counsel contends that the no-distribution
portion of the revised rule is still overly broad. The rule’s
inclusion of the term ‘‘company premises’’ shows that the
rule encompasses nonwork areas, and hence, is overly broad.
For the reasons advanced by General Counsel set out above,
I agree that Respondent violated and is violating Section
8(a)(1) of the Act by maintaining an overly broad and vague
no-solicitation, no-distribution rule.
CONCLUSIONS OF LAW
1. Respondent Farley Candy Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Chemical & Allied Product Workers Union, Local No.
20, affiliated with International Union of Allied, Novelty and
Production Workers is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act by maintaining and enforcing an overly broad and vague
no-solicitation, no-distribution rule.
4. Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act by discharging the following named employees because
they engaged in protected concerted activity on February 3,
4, 6, and 7, and in order to discourage its employees from
engaging in such activities or other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection:
Ramon Leon Minerva Flores
Adela Mondragon Onesimo Rojas
Feliciano Martinez Enrique Espinoza
Jorge Silva
5. The unfair labor practices found to have been com-
mitted above are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent Farley Candy Company has
violated Section 8(a)(1) of the Act, I recommend that it be
ordered to cease and desist and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
Having found that Respondent unlawfully promulgated and
maintains an overly broad and vague no-solicitation, no-dis-
tribution rule, I recommend it be ordered to rescind such
rule. Further, having found that Respondent discharged cer-
tain of its employees, named above, in violation of the Act,
I recommend that it be ordered to offer immediate reinstate-
ment to them to the positions they formally held or to sub-
stantially similar positions, discharging if necessary, any em-
ployees hired to replace them. I further recommend that Re-
spondent be ordered to make these employees whole for any
losses in wages or benefits they may have suffered by rea-
sons of Respondent’s unlawful actions. Backpay shall be
computed in accordance with the formula approved in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest com-
puted as described in New Horizons for the Retarded, 283
NLRB 11173 (1987).
It is recommended that Respondent be ordered to remove
from its personnel records or other records any reference to
the discharges of Ramon Leon, Minerva Flores, Adela
Mondragon, Onesimo Rojas, Feliciano Martinez, Enrique
Espinoza, and Jorge Silva, and notify them in writing that
this has been done and the expunged references will not be
used as a basis for future discipline against them.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondent, Farley Candy Company, Chicago, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining an overly broad no-so-
licitation, no-distribution rule.
(b) Discharging its employees because they engaged in
protected concerted activity and in order to discourage its
employees from engaging in such activities or other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of 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) Rescind its overly broad and vague no-solicitation, no-
distribution rule.
(b) Offer immediate reinstatement to the persons named
below, to their former positions or, if those positions no
longer exist, to substantially similar positions, discharging if
necessary any employees hired to replace them, and make
them whole for losses they may have suffered as a result of
Respondent’s discrimination against them, in the manner set
forth in the remedy section of this decision.
Ramon Leon Minerva Flores
Adela Mondragon Onesimo Rojas
Feliciano Martinez Enrique Espinoza
Jorge Silva
(c) Remove from its personnel records or other records
any reference to the discharges of Ramon Leon, Minerva
Flores, Adela Mondragon, Onesimo Rojas, Martino
Feliciano, Enrique Espinoza, and Jorge Silva, and notify
861FARLEY CANDY CO.
19 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
them in writing that this has been done and the expunged
references will not be used as a basis for future discipline
against them.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under this order.
(e) Post at its place of business in Chicago, Illinois, copies
of the attached notice which is marked ‘‘Appendix.’’19 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 13, after being signed by Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained by it for 60 consecutive
days in conspicuous places including all places where notices
are customarily posted. Reasonable steps shall be taken to
ensure that the notices are not altered, defaced, or covered
by any other material.
(f) The notice will be posted as ordered in both Spanish
and in English in order to ensure that it is understood by all
of Respondent’s employees.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.