Gonzales Packing Co.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 805 (N.L.R.B. 1991)

805
304 NLRB No. 106
GONZALES PACKING CO.
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
Although no party has excepted to the judge’s dismissal of the complaint
allegations involving the Respondent’s labor relations consultant, Jose Ybarra,
the Respondent pointed out in its exceptions that the judge made an inadvert-
ent factual error in discussing these issues. In this regard, the judge found that
employee Enedina Martinez’ testimony concerned group meetings that Ybarra
held on August 16–18, 1989, whereas the record shows that the Respondent’s
plant manager, Tim Horwath, conducted meetings on those dates and that
Ybarra’s meetings were held at an earlier time.
2 See also Lott’s Electric Co., 293 NLRB 297 (1989); Maremont Corp., 251
NLRB 1617, 1623 (1980).
Horwath & Co. d/b/a Gonzales Packing Company
and General Teamsters, Warehousemen &
Helpers Union, Local 890, International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, AFL–CIO. Cases
32–CA–10558 and 32–RC–2915
August 27, 1991
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On September 26, 1990, Administrative Law Judge
Timothy D. Nelson issued the attached decision. The
Respondent and the Charging Party Union filed excep-
tions to the judge’s decision, and the Respondent filed
an answering brief to the Union’s exceptions.
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and to adopt the recommended Order.
We adopt the judge’s finding that the Respondent
violated Section 8(a)(1) of the Act by soliciting its em-
ployees on the day before the election to wear or dis-
play antiunion ‘‘NO’’ stickers. Although the Respond-
ent engaged in this conduct during the critical period
of the representation election that the Union lost, the
judge found that the Respondent’s unfair labor prac-
tices did not rise to the level of objectionable conduct
sufficient to warrant setting aside the election. We re-
verse this finding for the reasons set forth below.
The Board held in Dal-Tex Optical Co., 137 NLRB
1782, 1786 (1962), that ‘‘[c]onduct violative of Sec-
tion 8(a)(1) is, a fortiori, conduct which interferes with
the exercise of a free and untrammeled choice in an
election.’’ As the judge noted, the Board stated in
Clark Equipment Co., 278 NLRB 498, 505 (1986),
that:
[t]he Board has departed from this policy in cases
where it is virtually impossible to conclude that
the misconduct could have affected the election
results. In determining whether misconduct could
have affected the results of the election, we have
considered ‘‘the number of violations, their sever-
ity, the extent of dissemination, the size of the
unit, and other relevant factors.’’ [Footnote omit-
ted.]
The record here shows that Marcelina Quitevis su-
pervised 50 to 60 employees, about half the eligible
voters, in the Respondent’s sorting and grading depart-
ment. The judge found that the Respondent violated
Section 8(a)(1) on the day before the election when
Quitevis visited 10 eligible voters at their work sta-
tions and asked each if they wanted a ‘‘NO’’ sticker
like those that antiunion employees had worn during
the election campaign. In so concluding, the judge
noted that ‘‘Quitevis’ unfair labor practice was com-
mitted repeatedly, with obvious calculation, [and] was
likely to have been witnessed by most of the . . . em-
ployees in her department.’’ The judge also recognized
the closeness of the subsequent election in which the
tally of ballots shows 52 for and 59 against the Peti-
tioner, with 6 nondeterminative challenged ballots. De-
spite the above factors, the judge found that he could
not ‘‘envision how Quitevis’ conduct could possibly
have interfered with [the election] . . . .’’
Contrary to the judge, we conclude that the Re-
spondent in this case engaged in objectionable conduct
that warrants setting aside the election. We rely on the
nature of Quitevis’ conduct, its proximity in time to
the election, the number of employees that Quitevis so-
licited that day, the likelihood that many of the 40 or
50 other employees in Quitevis’ department may have
witnessed her repeated unfair labor practice, and the
closeness of the election. For these reasons, this is not
a case where it is ‘‘virtually impossible’’ to conclude
that the Respondent’s misconduct could have adversely
affected the election results. Thus, we find that the
present case is distinguishable from Clark Equipment,
supra, which the judge cited in finding that the Re-
spondent’s unfair labor practice did not constitute ob-
jectionable conduct. In that case, the Board found that
employer misconduct involving only 8 employees in a
unit of 800 employees did not warrant setting aside an
election that the union lost by almost 100 votes. The
Respondent’s conduct here, as stated, directly affected
at least 10 employees, may have been observed by
many other eligible voters, and involved an election
that the Union lost by only 7 votes out of 111 unchal-
lenged ballots cast. In finding that the Respondent has
interfered with this election, we rely on Pillowtex
Corp., 234 NLRB 560 (1978), in which the Board
found objectionable conduct under similar cir-
cumstances.2 Accordingly, we shall set aside the elec-
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1989 unless I specify otherwise.
2 The voting unit included approximately 127 employees eligible to vote.
118 persons actually cast ballots: 1 was declared void, 6 more were challenged
on eligibility grounds.
3 The Union filed objections to the election in Case 32–RC–2915 on August
30, and filed unfair labor practice charges in Case 32–CA–10558 on Septem-
ber 7. After investigating, the Regional Director for Region 32, in his role as
an agent of the General Counsel, issued a complaint in the latter case on No-
vember 15. Nearly concurrently, the Union withdrew all objections except
those that corresponded to the amounts in the complaint. On November 21,
in his role as an agent of the Board, the Regional director issued a report on
objections in the former case and, finding that the outstanding allegedly objec-
tionable matters were ‘‘substantially similar’’ to the matters alleged in the
complaint, he ordered these cases consolidated.
tion held in the representation case and direct a second
election.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Horwath & Co. d/b/a
Gonzales Packing Company, Gonzales, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
IT IS FURTHER ORDERED that the election held on
August 23, 1989, in Case 32–RC–2915 is set aside and
that this case is severed and remanded to the Regional
Director for Region 32 for the purpose of conducting
a new election. The Regional Director shall include in
the Notice of Election the following paragraph:
NOTICE TO ALL VOTERS
The election of August 23, 1989, was set aside
because the National Labor Relations Board found
that certain conduct of the Employer interfered
with the employees’ exercise of a free and rea-
soned choice. Therefore, a new election will be
held in accordance with the terms of this Notice
of Election. All eligible voters should understand
that the National Labor Relations Act gives them
the right to cast their ballots as they see fit, and
protects them in the exercise of this right, free
from interference by any of the parties.
[Direction of Second Election omitted from publica-
tion.]
MEMBER OVIATT, dissenting in part.
Unlike my colleagues, I would adopt the judge’s de-
cision in full, overrule the Union’s remaining objec-
tion, and certify the results of the election. The day be-
fore the election, sorting and grading floorlady
Quitevis admittedly picked up a roll of stickers already
bearing the legend ‘‘NO,’’ and asked some 10 employ-
ees if they wanted one. Similar stickers had been in
use by employees during the campaign for some time.
Employees had written in antiunion legends on them,
and ‘‘had plastered many similar stickers around the
packing shed, on walls, forklifts, bathroom mirrors,
etc.’’ They had also circulated stickers among their fel-
low workers, and many were already wearing ‘‘NO’’
stickers on their clothing at the time. Employees testi-
fied that Quitevis was ‘‘friendly,’’ made no demands,
threats, or promises, and took no umbrage when
rebuffed.
In this circumstance, I agree with the judge that
Quitevis’ conduct did not interfere with private choice
at the ballot box, and in the absence of other viola-
tions, I would overrule the objection.
at the ballot box, and in the absence of other viola-
tions, I would overrule the objection.
Elaine D. Climpson, Esq., for the General Counsel.
Robin L. Kubicek, Esq. (Niesar, Pahl, Cecchini & Gosselin),
of San Francisco, California, for Respondent Gonzales
Packing Co.
Michael A. Johnston, Business Representative, of Salinas,
California, and (on brief) Geoffrey Piller, Esq. (Beeson,
Tayer, Silbert & Bodine), of San Francisco, California, for
Charging Party Teamsters Local 890.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. On Au-
gust 23, 1989,1 111 employees of Gonzales Packing Com-
pany (Respondent) cast unchallenged ballots in a representa-
tion election held under Board auspices; 59 voted against
continued representation by Teamsters Local 890, and 52
voted for it, a margin of defeat that made it unnecessary to
resolve challenges made to the eligibility of 6 additional vot-
ers.2
These consolidated cases, which I heard in trial at Monte-
rey, California, on February 21–23, 1990, commonly focus
on three separate acts of alleged misconduct by agents of Re-
spondent during campaigning in the month before that elec-
tion. The General Counsel has issued an unfair labor practice
complaint alleging that in these incidents Respondent’s
agents interfered with, restrained, or coerced employees in
the exercise of protected rights and thereby violated Section
8(a)(1). The Union has filed objections to the election which
ultimately rely on these same alleged incidents.3
The complaint, as amended at trial, alleges materially that,
[Par. 6(a)(1)1 (i): On an ‘‘unknown’’ date in ‘‘late
July, ‘‘Respondent’s ‘‘Labor Consultant,’’ Jose C.
Ybarra, ‘‘threatened employees that if they continued to
support the Union, Respondent would file for bank-
ruptcy, close its facility and cease doing business,’’ and
(ii) ‘‘impliedly promised to pay employees better wages
if they voted against the Union.’’
[Par. 6(a)(2)] (i): On an ‘‘unknown’’ date in ‘‘early
August,’’ Ybarra ‘‘interrogated employees regarding
their Union sympathies,’’ and (ii): ‘‘impliedly promised
to grant wage increases to employees if they voted
against the Union.’’
[Par. 6(b)]: On August 22, Respondent’s ‘‘super-
visor,’’ Marcelina Quitevis, ‘‘interrogated employees by
asking them whether or not they wanted to wear an
anti-Union, ‘No’ sticker.’’
807GONZALES PACKING CO.
4 I grant Respondent’s unopposed motion to submit its ‘‘amended brief’’
out-of-time, in substitution for its timelyfiled original brief, which was incom-
plete due to unforeseeable mechanical problems.
5 Respondent is owned by Steve Horwath; Tim Horwath, his son, is the
plant manager; Melanie Horwath manages the office, oversees accounts, and
performs a variety of hiring and other personnel functions typically associated
with a seasonal vegetable processing operation, including maintaining and up-
dating hiring rosters and seniority lists, recalling employees, and administering
discipline.
6 I rely on Marcelina Quitevis’ consistent estimates for the finding that 50–
60 employees worked in her department at relevant times. Respondent’s coun-
sel voiced some disagreement with Quitevis’ testimony on this point, but coun-
sel had ample time thereafter to do a search of relevant records and to dem-
onstrate that Quitevis was mistaken when she so testified, if she was. Melanie
Horwath’s testimony, though purportedly linked to a recent review of records,
was variously inconclusive, or obscured by irrelevant data, or based on her
own personal estimates not necessarily related to her recent search of records;
in any case, she does not obviously contradict Quitevis’ estimates.
7 Quitevis, like each of the other department ‘‘foremen,’’ is salaried and eli-
gible to participate in a health insurance plan not available to employees in
the voting unit. I discuss aspects of Quitevis’ supervisory role in greater detail
in section III,B.
8 The complaint is not in evidence. Counsel for both sides see to agree in
colloquy (Tr. 575–577) that Respondent had relied on the validity of the show-
ing of interest supporting the decertification petition as the basis for withdraw-
ing recognition from the Union, and that, in finding merit to the Union’s
charge, the director was relying on a judgment that the petition was not ade-
quately supported, and not on any reason to believe that Respondent had given
unlawful assistance to the RD petitioner, or had otherwise interfered unlaw-
fully in the decertification movement.
9 Ybarra and Tim Horwath worked from scripts, or at least ‘‘outlines,’’ in
their uncontested speeches to large groups of employees; all three of Tim
Horwath’s final speeches (apparently the same basic speech, repeated to sepa-
Continued
Respondent admits that the Board has jurisdiction over its
operations, that Jose C. Ybarra and Marcelina Quitevis were
its agents, and that Quitevis was, moreover a ‘‘supervisor’’
of voting unit employees within the meaning of Section
2(11) of the Act, but denies that either of them committed
unfair labor practices as alleged, or that their conduct im-
paired the validity of the election.
Based on my study of the record and the parties’ briefs,4
my observation of the witnesses, my assessments of the in-
herent probabilities, and my review of relevant legal author-
ity, I reach the following
FINDINGS AND RECOMMENDED DISPOSITIONS
I. BACKGROUND
Respondent, a familyowned business, is a tomato packing
operation in Gonzales, California; its principal day-to-day
managers are Tim Horwath and his wife, Melanie Horwath.5
In late August, at the peak of its July 1–October 31 season,
about 127 workers, many of whom comfortably speak and
understand only Spanish, were employed at the Gonzales
packing shed. The operation includes several small depart-
ments, such as the ‘‘box shop’’ (seven employees) and one
large one, ‘‘sorting and grading,’’ where, typically, 50–60
workers,6 all women, face each other across the various con-
veyor lines or tables used for different sorting and grading
tasks. There, admitted Supervisor Marcelina Quitevis, the
‘‘grading foreman,’’ or ‘‘floorlady,’’ is directly in charge.7
For at least 20 years under Horwath family management,
Respondent had recognized and contracted with the Union as
the representative of its production and maintenance employ-
ees at the Gonzales’ shed. Their most recent (1986–1988)
labor agreement was due to expire on November 1, 1988. On
that date an employee filed a decertification petition in Case
32–RD–890, but on January 6 the Regional Director deter-
mined that the petition was not supported by a valid showing
of interest, and he therefore dismissed it. Respondent sought
the Board’s review of this dismissal. In the meantime the
Union had filed a charge in Case 32–CA–9991 alleging that
Respondent had unlawfully withdrawn recognition. The Re-
gional Director found merit in that charge and apparently
issued a complaint.8
On March 9 Respondent and the Union composed those
cases, with the Regional Director’s approval, by entering into
a private ‘‘Agreement.’’ The Agreement provided that Re-
spondent would withdraw its request for review in the dis-
missed RD case and the Union would withdraw its charge
in the CA case, that an election would be held during the
week of August 20, at the peak of the upcoming season, and
that, in the meantime, the expired labor agreement would be
treated as ‘‘continue[d] in its entirety on a day-to-day basis,’’
with special provisions and understandings to govern the
Union’s ‘‘access’’ to the plant and its employees. It was pur-
suant to this Agreement (and through the intervening proce-
dural device of the instant petition in Case 32–RC–2915,
filed by the Union) that the now-disputed August 23 election
was held.
II. THE CAMPAIGN IN OVERVIEW
It will be easier to understand my analysis of the three in-
cidents in question to understand first the general campaign
setting in which those incidents occurred:
Jose Ybarra, charged with making unlawfully coercive
statements during two separate meetings with small groups
of employees, is a labor relations consultant to employers
who speaks English and Spanish; he performed various elec-
tion ‘‘persuader’’ services for Respondent, principally by
conducting group meetings directly with employees on July
3 (the uncontested ‘‘Welcome’’ speech), July 21 and August
9 (the box shop meetings, the latter being the one that ap-
pears to be in contest), and August 16–18 (the series of
‘‘Small Group’’ meetings held with staggered groups of to-
mato sorters, one of which is contested). He also appeared
on the dais and translated Tim Horwath’s final series of three
uncontested campaign speeches to larger groups of employ-
ees on August 16–18, and alone conducted a demonstration
of voting procedures on August 22.
Gloria Tapia, the Union’s bilingual business agent, in-
voked the Union’s ‘‘access’’ rights, as confirmed in the par-
ties’ March 9 Agreement, and visited the shed regularly in
the month of August (‘‘on an almost daily basis,’’ as the par-
ties stipulated, in the final two weeks before the election).
During these visits Tapia would meet with new hires, in con-
fidential settings, such as a special office made available by
Respondent for that purpose, or in a breakroom.
The employees received much written campaign propa-
ganda from both sides, each piece printed in both English
and Spanish. On this record, more written material seems to
have been generated by the Union, whose agents and volun-
teers regularly distributed handbills outside the plant, than by
Respondent, which seems to have relied more heavily on the
captive audience meeting listed above to communicate its
own messages, and to reply to the Union’s campaign tracts.
Much of Respondent’s campaign is nevertheless ‘‘docu-
mented’’ in one form or another,9 and, as may be inferred
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rate groups over the August 16–18 period) were tape-recorded, although the
question-and-answer sessions at the conclusion of each speech were not re-
corded; and, of course, Respondent’s own campaign letters and handouts were
another source of documentation about the overall themes emphasized by Re-
spondent. These materials were furnished to the Regional Director during the
investigation of these charges and objections.
10 The alleged statements by management agents referred to in Tapia’s letter
are not a subject of this prosecution.
from the summary above, much of that campaign has not
been called into question in these proceedings.
Many of the themes used by Respondent throughout the
campaign were evident in Ybarra’s July 3 ‘‘Welcome’’
speech, delivered consecutively in English and Spanish, at a
time when a substantial part of Respondent’s peak com-
plement had been recently hired. According to his script,
Ybarra first spoke of the election to be held on August 23.
Among other things, Ybarra expressed Respondent’s ‘‘hope
that you will give the company an opportunity to prove itself
to you[.] . . . to deal directly and openly with its employees
instead of 20 having to go through an outsider.’’ He warned
employees that they could expect to hear ‘‘a lot of promises
from the Union,’’ but should think of them as ‘‘campaign
promises,’’ and should recall that ‘‘the Company cannot and
will not make promises . . . to its employees when there is
an election pending[.]’’ He emphasized that Respondent was
free, however, to ‘‘answer your questions and state its
opinion[,]’’ and encouraged employees, ‘‘If you want to ask
any question about what is going on during the Union cam-
paign, you can ask your supervisor and/or office or you can
write it out on a slip of paper and drop the question [anony-
mously, as he later stressed] in the box we have set up for
this purpose near the time clock.’’ He also sounded dual
themes that were to resonate in later campaign tracts and
other statements, thus:
until the election . . . . [t]he Company is . . . obli-
gated to follow all of the terms and conditions of the
last Union contract. That means that you will continue
to receive the Union negotiated wages of the contract.
In addition, new hires must join the Union and pay
Union dues. . . . Those employees who have been here
past seasons must continue to pay Union dues. This ob-
ligation continues unless and until the Union is voted
out.
In announcing that the employees would labor under the
‘‘last’’ union contract, originally negotiated in 1986, ‘‘until
the election,’’ Respondent was aware (see Tim Horwath’s
August 4 letter, below) that the $4.50-per-hour starting rate
established by that contract did not sit well with the new
hires. And certainly the Union saw that rate as a potential
campaign liability for the same reason. Thus, on July 29, the
Union’s Gloria Tapia wrote to Horwath (and simultaneously
circulated English and Spanish copies among the electorate),
claiming to have heard that Respondent’s agents were telling
employees that ‘‘the Company would like to increase the pay
of the new hires, but [was] unable to do so at this time be-
cause of the upcoming election, or because the Union is pre-
venting it.’’10 Tapia then ‘‘inform[ed]’’ Respondent that,
Local 890 will gladly agree to any wage increase for
new hires, to take effect immediately. We feel that
$4.50 per hour is far to [sic] low of a wage for any
working person, and we intend to do everything pos-
sible to raise that wage in the upcoming contract nego-
tiations.
If the Company is sincere in its promise to improve
wages for the new hires, you do not have to wait until
after the election, you can do it now. All that you have
to do is let the Union know, and we will sit down with
you immediately to modify the union contract.
Writing in reply on August 4—and simultaneously distrib-
uting bilingual copies to the employees—Tim Horwath dis-
missed the Union’s letter as ‘‘ere campaign literature,’’ one
which nevertheless deserved a reply, ‘‘so that the Company’s
position is clearly stated and not misrepresented in the fu-
ture.’’ Elaborating, Horwath ‘‘agree[d] . . . that the current
contract wage of $4.50/hour for new hires is ‘too low[,]’’’
but cited the ‘‘position’’ of the ‘‘NLRB’’ that granting any
wage increase during the pendency of the election would be
‘‘an improper attempt to influence the employees’ free
choice,’’ and would constitute ‘‘objectionable conduct that
may invalidate the upcoming election.’’ And, asserting that
‘‘Gonzales Packing is striving to create an election atmos-
phere where the employees are allowed to exercise their
rights freely and without improper influence,’’ Horwath
judged that ‘‘to increase wages at a time when an election
date is 80 close—August 23—runs a very real risk that the
NLRB will invalidate the election.’’ Then, after denying that
the company had yet made any ‘‘promise’’ of a wage in-
crease, and that the ‘‘National Labor Relations Act’’ would
‘‘prohibit’’ such a promise, Horwath closed by ‘‘set[ting] the
record straight,’’ as follows:
I have been receiving a number of questions from our
employees about . . . a wage increase. My response
. . . is as follows. I agree a wage increase is a good
idea, but I cannot promise anything at this time because
there is an election pending.
I digress to emphasize that, however debatable in these
unique circumstances might be the applicability of the legal
principle that Horwath professed to rely on in declining to
grant a preelection wage increase, the General Counsel had
full opportunity to evaluate Respondent’s admitted conduct
in this regard, and has chosen not to challenge it as unlawful.
The only claim raised in the complaint or the outstanding ob-
jections relating to Respondent’s posture on the matter of
wage increases is that Ybarra, in two different small meet-
ings, took this subject a distinctly unlawful step further, by
making other statements which ‘‘implied’’ that ‘‘better
wages’’ would come only if employees would vote out the
Union. Because it has not been called into question by the
prosecuting parties I will assume for all purposes below,
without deciding, that Respondent’s admitted position, as re-
flected implicitly in Ybarra’s July 3 ‘‘Welcome’’ speech, and
explicitly in Tim Horwath’s August 4 letter, was lawful and
unobjectionable.
Also relevant to contested issues is a union handbill dis-
tributed on August 15 in which Ybarra was referred to as
‘‘El Gordo,’’ and as a ‘‘professional union buster’’ who
‘‘specializes in attacking the unions of his own Raza [and
who] . . . charges thousands of dollars to companies like
Gonzales Packing for his dirty work.’’ The handbill went on
to suggest that Respondent saw Ybarra’s services as an ‘‘in-
809GONZALES PACKING CO.
11 Here I rely on Horwath’s speech outline (actually closer to a script);
Horwath testified without contradiction that he followed this script without
varying substantially from its handwritten text.
12 [Par. 6(a)(1)] (i): On an ‘‘unknown’’ date in ‘‘late July,’’ Respondent’s
‘‘Labor Consultant,’’ Jose C. Ybarra, ‘‘threatened employees that if they con-
tinued to support the Union, Respondent would file for bankruptcy, close its
facility and cease doing business,’’ and (ii) ‘‘impliedly promised to pay em-
ployees better wages if they voted against the Union.’’
[Par. 6(a)(2)] (i): On an ‘‘unknown’’ date in ‘‘early August,’’ Ybarra ‘‘in-
terrogated employees regarding their Union sympathies,’’ and (ii): ‘‘impliedly
promised to grant wage increases to employees if they voted against the
Union.’’
vestment,’’ one that Respondent, ‘‘like any good business-
men,’’ would seek to ‘‘profit from,’’ ‘‘How? Probably by
cutting the wages for the seniority people.’’ The handbill
stated further that ‘‘Jose and Tim are promising all kinds of
wonderful things if we vote out the Union,’’ but observed
that Respondent would not give any ‘‘guarantees,’’ then as-
serted,
They know as well as we do that if there is no Union
the Company can do anything. They can fire anyone,
they can cut wages, they can do whatever they want.
Finally, I deem it relevant to summarize what Tim
Horwath said in his series of uncontested speeches to larger
groups of employees (about 40 employees attended each one)
in the period August 16–18.11 There, Horwath again empha-
sized themes admittedly raised as well in the smaller group
meetings conducted primarily by Ybarra, and again used the
forum to reply to the Union’s recent handbills. Thus,
Horwath stressed that his family had run the business for
three generations, and that Respondent had consistently ob-
tained more work for the employees by expanding the num-
ber of growers with whom it contracted, and he then asked
rhetorically, ‘‘Who is the one that provides you with wages
and security?’’ In similar vein, responding to Union tracts
touting the Union’s achievements for workers at another
packing operation, Horwath asserted that truckdriving work
had been contracted out by that packer, and that drivers had
‘‘lost their jobs,’’ and again asked rhetorically, ‘‘What secu-
rity did the Union offer them?’’ And, citing another example
of a packer who had ‘‘closed [its] operation’’ after many
years of dealing with the Union, Horwath stated, ‘‘Our fam-
ily has been here for three generations, and plan to be here
for ten generations to come, with or without a union con-
tract.’’ In approximately midspeech, Horwath referred to the
Union’s prior claims that ‘‘Jose and I have been promising
wonderful things, or that without a union contract we can cut
wages and fire anyone,’’ and then insisted:
First: We haven’t promised anything because it is
against the law to do so while an election is in effect
. . . .
Second: We will never fire anyone without good
cause. . . . The law requires it [and] you are protected
by the law.
Third: What kind of business would we be to cut
wages . . .? [We] would have an unhappy work force
that would be nonproductive. In the past this company
has never taken away anything they have given the peo-
ple.
And, after some digressive attacks on the Union’s bona fides,
Horwath stated,
All we are asking for is a chance to prove [ourselves].
We are not liars: we have integrity and good will, and
have had for the past 40 years, and would like an op-
portunity to talk and deal directly with you, without the
interference of a third party that has nothing to lose.
Nearing his conclusion, Horwath made familiar suggestions
that the Union only wanted employees’ dues money, and that
its treasury was already swollen, and closed his prepared re-
marks with these words: ‘‘Do they really need your 16 dol-
lars? Vote No.’’
III. SPECIFIC ALLEGED MISCONDUCT
A. By Ybarra
Although the testimonial record leaves room for much
doubt about many particulars, it is at least clear that the
counts in complaint paragraph 6(a)(1) and (2) about what
Ybarra allegedly said in ‘‘late July’’ and ‘‘early August,’’12
are intended to address Ybarra’s conduct in two separate
meetings, one of them with box shop employees (apparently
the August 9 one), and the other with a small group of about
six tomato sorters, one of many such small meetings con-
vened in the August 16–18 period. And, on brief, the Gen-
eral Counsel specifies further that Ybarra’s alleged unlawful
‘‘interrogation’’ occurred in the box shop meeting, along
with Ybarra’s alleged ‘‘implied promise’’ to raise wages if
the Union were voted out, and (despite the ‘‘late July’’ ref-
erence in the complaint) that it was in one of the August 16–
18 meetings with a certain group of tomato sorters that
Ybarra allegedly threatened ‘‘bankruptcy,’’ and ‘‘closure,’’
and (a second time) made an ‘‘implied promise’’ to raise
wages if the Union were voted out.
1. Box shop meeting(s)
The General Counsel called two employees from the box
shop, Rudy Jimenez and Javier Uribe Pelayo. Jimenez, who
speaks English and Spanish, testified that Ybarra conducted
this meeting alone. largely in English, and that Tim Horwath
was not present until ‘‘after’’ Ybarra had concluded his re-
marks, and then only to make an impromptu remark to the
effect that he wished to ‘‘deal [directly with employees] . . .
rather than having the Union involved.’’ Pelayo is not com-
petent in English; he gave all evidence through an inter-
preter, and his information focuses on what Ybarra said in
Spanish to him, while purportedly translating Tim Horwath’s
remarks in English to the group as a whole. (Thus, con-
tradicting Jimenez at the threshold, Pelayo recalls that
Horwath was the main speaker at the meeting in question.)
Apart from any other distinct problems with the testimony
of each of these witnesses, I must observe at the outset that
it is not even certain that they were both describing the same
meeting, so inharmonious are the contents of their respective
versions. And on brief, the General Counsel herself confesses
unresolved doubt on this point, even while elsewhere claim-
ing that Jimenez’ account was ‘‘corroborated’’ by Pelayo.
After much study of all the relevant testimony and assess-
ments of the probabilities, I conclude that in those portions
of their testimony relied upon by the General Counsel, these
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Tim Horwath, echoed by Ybarra, convincingly testified that he was
present at only the August 9 box shop meeting, and that he was present
throughout it, all in response to a request voiced by employees to Ybarra in
the July 21 meeting that Horwath be present at the next one. He further states
convincingly that he was not at all present, not even briefly, at the July 21
meeting. Pelayo’s recorded recollection (described further below) suggests that
he was describing the second meeting (‘‘15 days before the election’’), even
though he also stated his ‘‘belief’’ that it was ‘‘the first meeting’’ he was de-
scribing. Jimenez, who says he attended only one of the two box shop meet-
ings, stated it was ‘‘about two weeks before the election,’’ and conceded that
it was ‘‘probably’’ the one on ‘‘August 9’’ (Tr. 229:8–9; see also, 244:10).
As I have described in main text, however, Jimenez also states that he did
not recall Tim Horwath being present at this meeting until after ‘‘Ybarra’’ had
committed the allegedly unlawful ‘‘interrogation’’ and had uttered the alleged
‘‘implied promise’’ to raise wages if the Union were voted out. But in describ-
ing such remarks by ‘‘Ybarra,’’ Jimenez eventually stated that these were
made in the context of questions and remarks by two ‘‘new’’ employees, one
of them being Carl Pollack. The exchanges involving Pollack and ‘‘Ybarra’’
described by Jimenez are in some ways similar to the transactions involving
Pollack and Tim Horwath described (in radically different terms) by Tim
Horwath and Ybarra. I can only conclude from the above, and from other
threads and snatches of commonality in the otherwise widely disparate ver-
sions offered by the witnesses, that Jimenez, Pelayo, Tim Horwath, and Ybarra
were all talking about the August 9 meeting, and that Jimenez’ failure to recall
Tim Horwath’s central presence is symptomatic of his general unreliability,
further discussed below.
14 On brief, the General Counsel adopts Jimenez’ most deliberate concession
that Ybarra asked employees ‘‘how they felt about the election.’’ But even this
question, she argues, violated Sec. 8(a)(1), a contention I discuss in my con-
cluding analyses.
15 Buried near the end of her discursive fn. 18 (Br. 21) is the General Coun-
sel’s acknowledgment that ‘‘Jimenez’ testimony was neither detailed nor a
model of clarity.’’ ‘‘However,’’ says the General Counsel, Jimenez was a ‘‘co-
operative witness,’’ who had ‘‘no vested interest in the proceeding’’ (‘‘unlike
Horwath, who was prone to self-righteousness and exaggeration,’’ and ‘‘unlike
. . . Ybarra, who was virtually incoherent and unable to remember anything
. . . .’’) I must observe that, elsewhere in that footnote (running from pp. 19
through 21 of her brief) the General Counsel nevertheless seems to accept
large chunks of Tim Horwath’s testimony for many purposes, even when they
plainly contradict Jimenez; for example, Horwath’s testimony that he was cen-
trally involved in the August 9 meeting, and that he brought copies, inter alia,
of his August 4 letter to Tapia (a wage increase is a ‘‘good idea,’’ but ‘‘cannot
promise anything at this time because an election is pending’’) to the meeting,
and repeated those notions in the meeting, particularly and emphatically in re-
sponse to a suggestion from employee Pollack that (the employees would get
an increase if they voted out the Union). In all these circumstances, I am not
as reassured as the General Counsel is about the reliability of Jimenez’ ver-
sion(s) that Jimenez may have been a ‘‘cooperative witness,’’ or that he may
have ‘‘had no vested interest in the proceedings.’’ Especially in ‘‘company
speech’’ cases (see, e.g., Christie Electric Corp., 284 NLRB 740, 755–756
(1987)), these virtues are no substitute for coherency, consistency, and cor-
roboration, all of which Jimenez’ accounts lacked.
16 There is no evidence that Respondent or its counsel did anything to con-
tribute to Pelayo’s unease as a witness, and I intend no such suggestion in
the following remarks, but it was evident to me that Pelayo regretted ever hav-
ing given an investigative statement in the first place, and that he had decided
at trial to dummy-up; that is, to pretend to an almost total lack of recollection
as the best means of ensuring that he could not be blamed for any finding
or judgment made in this case. Neither do I readily accept as an explanation
for his faulty memory at trial his self-deprecating admissions, encouraged by
a series of questions by Respondent’s counsel, calculated to leave the impres-
sion that Pelayo is merely dull-witted.
17 Pelayo’s original declaration, handwritten by a Board agent in Spanish,
was read to him by the Board agent in Spanish: it bears the jurat of the Board
agent that Pelayo signed it on October 12. A typed and conformed version
of that declaration, translated into English by the same Board agent inconsist-
ently records in the conformed jurat that Pelayo signed it on January 2, 1990.
I presume that the October 12 date is the correct one, and that the January
2 date reflects an error.
18 I now think I erred in this admissibility ruling. Out-of-court assertions
made by Pelayo, in writing or otherwise, are hearsay under Rule 801(c),
Fed.R.Evid., and therefore are inadmissible under Rule 802’s proscription
against hearsay, unless they may be admissible under a specific hearsay excep-
tion. Rule 803(5) provides an exception for certain types of ‘‘recorded recol-
lections.’’ Among other things, that rule requires that the recorded assertion
be ‘‘shown to have been made or adopted by the witness when the matter was
fresh in his mind.’’ Pelayo’s written declaration was given roughly 2 months
after the event he was purporting to recall. Nothing in the circumstances would
allow a finding that these events were ‘‘fresh’’ in Pelayo’s consciousness
when he gave his out-of-court declaration. In the circumstances, my findings
below about the contents of Pelayo’s declaration, and my discussion of the po-
witnesses were both describing the same meeting, and that
this was the one conducted on August 9. This was, I find
also, the only one that Tim Horwath participated in; indeed,
I find he led it, and that Ybarra served mainly to translate
Horwath’s remarks into Spanish for the benefit of Pelayo, the
only non-English speaker in the department.13 In this meet-
ing, as all witnesses seem to agree, the atmosphere was in-
formal, with workers standing at or near their machines or
leaning on boxes and cartons while Horwath (pace Jimenez)
made brief statements and responded as comments and ques-
tions emerged sporadically from the workers.
Setting aside his failure to recall Tim Horwath’s central
role in the meeting, Jimenez’ testimony was otherwise frag-
mentary, vague as to context, inconsistent, and demonstrated
overall that his purported recollection of key statements was
often ore a product of subjective and careless interpretation
than of genuine recall of the words ‘‘Ybarra’’ (or Horwath)
actually used. He stated, for example, that Ybarra asked em-
ployees generally how they felt ‘‘about the election.’’ Later,
showing no sign that he understood that there was a dif-
ference, Jimenez reported that Ybarra had instead asked how
employees felt about ‘‘the Union,’’ then later agreed that it
was ‘‘election’’ after all, then, still later, reverted to saying
that Ybarra had asked employees how they felt about the
‘‘Union.’’14 Other elements of his account are similarly de-
fective and cause me to question how seriously I should take
any of his attempts to reconstruct the actual words used by
‘‘Ybarra.’’ Thus, using significantly different and improbable
formulations of Ybarra’s statements in each attempted re-
counting, he first said that Ybarra remarked to the employ-
ees,
. . . that maybe we thought with the union things could
work out better there and we wouldn’t have to be pay-
ing fines, you know—I mean the union dues. And that
maybe we thought the union—the owner would try to
pay the new people better.
This evolved eventually on cross-examination into a claim
that what Ybarra had said was that ‘‘the owner would pay
the new employees $5 instead of $4.50 . . . [if employees
would] vote the Union out.’’ But elsewhere, Jimenez cas-
ually attributed the same statement to Tim Horwath in his se-
ries of uncontested speeches on August 16–18, summarized
above, only to confess later that, in this instance, he was
only referring to his subjective understanding of Horwath’s
remarks. I would not rely on Jimenez alone to rest a finding
about what Ybarra or Horwath said.15
Pelayo’s testimony at trial was even less helpful; indeed,
he unconvincingly professed to have no recollection of any
relevant matters.16 Later, asked about a written declaration
he had given to a Board agent on October 12,17 he was anx-
ious to claim that he had been ‘‘confused’’ when he the
Board agent read it to him before he signed it. He neverthe-
less acknowledged that his affidavit represented the truth as
he then recalled it. Without judging its weight, I received
Pelayo’s affidavit in evidence under the doctrine of ‘‘past
recollection recorded,’’18 and the General Counsel now relies
811GONZALES PACKING CO.
tential legal impact of matters asserted by Pelayo in it, must be understood
as hypothetical, or alternative, in character.
19 I received into evidence on Respondent’s proffer an affidavit given to the
Board on October 12 by box shop employee Anthony Escobar, whom I
deemed to be not currently ‘‘available’’ within the meaning of Rule 804(a)(5),
Fed.R.Evid., because he had returned to Texas in the ‘‘off’’ season and his
precise whereabouts there were not known nor reasonably knowable to Re-
spondent, despite good-faith inquiry. Although an ‘‘unavailable witness’’ situa-
tion calls up a different set of evidentiary considerations, I now doubt the
value as evidence of Escobar’s written declaration, including for many of the
same reasons discussed in the footnote concerning Pelayo’s declaration. I nev-
ertheless observe that Escobar’s affidavit generally describes Ybarra’s state-
ments at both box shop meetings and furnishes some particulars of Tim
Horwath’s statements at the second of those meetings, and that Escobar’s ac-
count of the second meeting is roughly harmonious with Tim Horwath’s and
Ybarra’s accounts, but is by no means an attempt at a comprehensive recita-
tion. Because I judge that the General Counsel’s evidence through Jimenez and
Pelayo did not establish a plausible prima facie case, I do not decide whether
Escobar’s affidavit deserves any weight.
20 Ybarra specifically denied having asked such a question, but I place no
stock in his denial, one of many uttered perfunctorily, especially when he ad-
mittedly—and understandably—could not at this date recall many details of his
involvement in Respondent’s campaign, only one of many he had conducted
for various employers in the same industry within the previous 18 months.
21 I have not independently sought to do the prosecution’s research, but I
doubt that even the most painstaking analysis of the thousands of potentially
relevant Board cases would lead either to plain support for the General Coun-
sel or plain refutation of her legal claims here.
on it, although with much equivocation. In that declaration,
given two months after the event, Pelayo recalled, inter alia,
that Tim Horwath (as translated by Ybarra) had said that he
‘‘didn’t promise anything,’’ and that ‘‘he couldn’t raise the
wages because there was still a contract, and that if he raised
the wages he would be breaking the law[,]’’ and that ‘‘[h]e
didn’t say what they were going to do after the election.’’
But Pelayo also recalled in this declaration—and this the
General Counsel sees as ‘‘corroboration’’ of Jimenez—that
Tim Horwath said in addition that he ‘‘didn’t promise to
raise the ages, until the election was won’’ (emphasis added).
Assuming that this formulation in English were the fair
counterpart of what Ybarra, purporting to translate Horwath,
said in Spanish to Pelayo, it would rather clearly imply that
employees would have to vote out the Union to get a raise,
and would violate Section 8(a)(1). But this string of words
also substantially contradicts the balance of what Pelayo
claims to recall that Ybarra said to him, especially that Tim
Horwath ‘‘didn’t say what they were going to do after the
election.’’ At bottom, nothing in Pelayo’s performance gave
me any confidence that he could accurately reconstruct the
precise words used by a company agent in remarks made two
months before his recollection was first recorded. And, in the
absence of any specific and coherent corroboration of
Pelayo’s recorded recollection, I would not rely on that part
of his affidavit that suggests that Ybarra said that Horwath
‘‘didn’t promise to raise wages, until the election was won.’’
I think it involves a kind of wishful thinking for the Gen-
eral Counsel to snatch raw pieces from the disparate testi-
mony of each of these witnesses, and then to suppose that,
despite their inherent inconsistencies, they have somehow es-
tablished between the two of them that ‘‘Ybarra’’ (or
Horwath) made an unlawful implied promise. I think it as
probable as not on this record that all that Jimenez and
Pelayo heard were mere repetitions of what Ybarra admit-
tedly said in his July 3 ‘‘Welcome’’ speech, and what Tim
Horwath said in writing to the Union’s Tapia on August 4
on the subject of pay increases (a good idea, but no prom-
ises; employees will have to live with the ‘‘Union-nego-
tiated’’ pay rates until the election is over). Such messages
might well be understood by employees as suggestions that
until the Union left the scene there could be no pay raises,
but that is not literally what Ybarra and Tim Horwath said
in those undisputed communications, and, as already noted,
those communications are not being challenged in these pro-
ceedings. In any event, Jimenez and Pelayo were too con-
fused and inconsistent on key points to reliably establish,
prima facie, that ‘‘Ybarra’’ (or Horwath) made any unlawful
‘‘implied promise’’ in the box shop meeting(s). I would
therefore dismiss that count in the complaint, and rec-
ommend that the corresponding objection be overruled. And
I reach those judgments without determining whether Ybarra
or Horwath were more credible in their denials that any such
implied promise was made, much less attempting to make
any findings about precisely what Ybarra (and Horwath) ac-
tually did say during those meetings.19
The only remaining question is whether Ybarra unlawfully
‘‘interrogated’’ box shop workers. The General Counsel
adopts Jimenez’ claim that Ybarra asked employees ‘‘how
they felt about the election,’’ and I accept this for present
purposes.20 The General Counsel asserts that this question
‘‘clearly constituted an interrogation as to whether the em-
ployees supported the Union or not . . . .’’ She deems it
significant in this regard that (according to Jimenez) two new
employees (including Pollack) volunteered that they thought
it was a ‘‘good idea to vote the Union out because, you
know, they didn’t want to be paying the union dues and
stuff.’’ And, adding yet another factor to her analysis, the
General Counsel concludes that, ‘‘In conjunction with the
promise of a wage increase, this inquiry [‘‘how do you feel
about the election?’’] tended to be coercive and also violated
Section 8(a)(1).
The General Counsel cites no plain authority for these var-
ious assertions, and I find them by no means self-evident.21
In any case, I regard the issue raised by Jimenez’ testimony
as involving at bottom more a question of factual prob-
abilities than of legal doctrine: Will it reasonably tend to
‘‘interfere with, restrain, or coerce employees’’ in the exer-
cise of protected rights for an employer, in an informal group
setting such as this one, to ask assembled employees how
they ‘‘feel’’ about an upcoming ‘‘election’’? Contrary to the
General Counsel’s view, I think the answer is clearly ‘‘No.’’
In my assessment of the probabilities, such a question is
more likely to be understood as a mere ‘‘ice-breaker,’’ an in-
vitation to employees to say anything on their minds relating
to the election that they might wish to divulge, but hardly
the kind of question that would reasonably tend to cause em-
ployees to believe that they risk the employer’s displeasure
if they fail to respond, much less to believe that they must
respond by disclosing their sentiments on the subject of
union representation. I am similarly unpersuaded that it
would matter to the analysis that some employees in fact
may have responded by stating their opinion that they did not
wish to be represented by the Union; the issue is whether the
question would tend to ‘‘coerce’’ such a response. The
record shows overall that employees were not shy about ex-
pressing pro or antiunion sentiments in these meetings, and
it is therefore unreasonable to deduce that it was Ybarra’s
question, ‘‘How do you feel about the election,’’ that was the
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Respondent called one employee witness, Victoria Perez, to render her ac-
count of what Ybarra said in the particular meeting attended by Martinez. By
her demeanor and the form of her answers Perez struck me as the most biased
and disingenuous of all the witnesses who testified in this proceeding; she ap-
peared overeager to volunteer testimony she believed favorable to Respondent
and equally anxious to deny anything she believed might be unhelpful to Re-
spondent’s case. I give her testimony no weight whatsoever insofar as it con-
cerns the ‘‘small group’’ meeting.
23 Purporting to translate Ybarra’s Spanish remarks into English, Martinez
used a number of different formulations, such as, ‘‘it would probably be true,’’
or, ‘‘that would happen.’’ However, when pressed to recall the Spanish words
used by Ybarra here, she consistently used ‘‘poder,’’ the future conditional
mood of the Spanish verb ‘‘poder,’’ which the official translator rendered into
English as ‘‘could’’ [be], or ‘‘might’’ [be]. Relying on the official translation,
I deem it evident that Martinez was describing a remark by Ybarra that was
decidedly are hypothetical and contingent in tone than any of Martinez’ own
purported translations would suggest.
24 I note that on brief (at p. 33) the General Counsel now asserts, in contrast
to the unqualified language of the complaint, that ‘‘[b]y acquiescing in [em-
ployee Perez’] comments, Respondent [i.e., Ybarra] impliedly threatened em-
ployees with the possibility of its facility being closed or going bankrupt
. . . .’’ (Emphasis added.) Even taking this as the General Counsel’s real con-
tention here, I am not persuaded that Ybarra’s remarks can reasonably be un-
derstood as even an implied threat about what Respondent would do if the
employees voted to keep the Union.
‘‘cause’’ of the employees’ antiunion statements in this in-
stance, much less the ‘‘coerced’’ product of that question.
Neither is it evident how such a question would tend to be
‘‘coercive’’ even if, elsewhere in the meeting, the employer
may have made an unlawful (implied) ‘‘promise of a wage
increase’’; this argument sounds like bootstrapping, and in
any case I have found no reliable evidence that Ybarra or
Horwath made such an implied promise.
Accordingly, insofar as the General Counsel admittedly re-
lies solely on Jimenez’ attribution to Ybarra of the question,
‘‘How do you feel about the election?’’ as the basis for the
corresponding ‘‘interrogation’’ count in the complaint, I
would dismiss that count, and, as well, the corresponding ob-
jection.
2. Tomato sorters meeting
The General Counsel relies solely on the testimony of
Enedina Martinez, who is apparently fluent in English and
Spanish, about a meeting she was called to attend, along with
about five other tomato sorters, at which Ybarra presided.
Martinez and Ybarra agree that the meeting lasted perhaps 30
minutes, and involved many questions and comments by em-
ployees (in Spanish) and many answers or other statements
by Ybarra (uttered first in Spanish, then, at least sometimes,
translated into English by Ybarra for the benefit of at least
one employee in attendance who was not competent in Span-
ish). Although Martinez vaguely recalled that the meeting
was about a ‘‘month’’ before the election, the General Coun-
sel presumes, as does Respondent, and so do I, that she was
referring to one of Ybarra’s small group meetings in the Au-
gust 16–18 period.
Martinez’ account suggests overall that Ybarra in one way
or another managed to repeat and emphasize the same
themes to be found in Respondent’s admitted campaign,
summarized earlier (desirability of ‘‘direct dealing,’’ com-
pany wants a chance to ‘‘prove itself,’’ employees should not
have to pay ‘‘union dues,’’ but company can’t make ‘‘prom-
ise,’’ and cannot raise wages before election because it’s ille-
gal) and responded to specific (Union-inspired) ‘‘rumors’’ by
reassuring employees that Tim Horwath had their best inter-
ests at heart and would not cut anyone’s wages if the Union
lost the election. Ybarra agrees generally that he repeated
many of these themes in the small group meetings, though
he admittedly could not recall details of many particular
meetings, including this one.22 Martinez favorably impressed
me with the sincerity of her recollections and with her gen-
eral ability to reconstruct events and many of their details,
and to give a reasonably coherent account of the overall tone
and flow of an event. And, as already noted, her account of
Ybarra’s remarks is generally harmonious with what Ybarra
himself recalled, or with the themes that Respondent admit-
tedly stressed in the campaign. It is on only two points that
their testimony is substantially divergent. I will discuss each
of these points separately.
First, Martinez recalled that at one point employee Vic-
toria Perez stated her belief (in Spanish) that with a union
the company (or companies in general, it is not clear which,
from Martinez’ varying accounts) would have to declare
‘‘bankruptcy,’’ or ‘‘close’’ the (their) operation(s). And Mar-
tinez recalls that Ybarra replied (in Spanish) to the effect that
this ‘‘could be’’ or ‘‘might be’’ true.23 Ybarra, by contrast,
not only denies making any remarks resembling these, but
denies flatly that the subject of bankruptcy or plant closure
even came up in any of his small group meetings. On this
point of credibility I have no difficulty rejecting Ybarra’s de-
nials; Martinez’ recollection that some such exchange oc-
curred seemed entirely genuine; Ybarra’s denial was wooden
and ritualistic. Even giving substantial credence to Martinez
on this first point, however, I find it difficult to discern in
her testimony anything that reasonably establishes the cor-
responding count in the complaint, that Ybarra ‘‘threatened
employees that if they continued to support the Union, Re-
spondent would file for bankruptcy, close its facility and
cease doing business.’’24 Martinez was candid in confessing
memory lapses on some potentially important details of this
transaction, and her inconsistent attempts to recount it leave
in considerable doubt exactly what happened. The most that
I could find is that in some manner Ybarra acknowledged the
hypothetical possibility raised by an employee that a union’s
presence might have an impact on whether some employers
stayed in business: Martinez’ account does not provide
enough reliable context to justify the conclusion that
Ybarra’s remarks would reasonably cause employees to fear
that bankruptcy or plant closure would happen if Respond-
ent’s employees voted for continue representation by the
Union. Moreover, even if some employees might have appre-
hended a more ominous message in Ybarra’s replies to
Perez, I find that Tim Horwath effectively dissipated any
such implication in his own speeches to employees in the
same August 16-18 period, when he unequivocally stated
(emphasis added), ‘‘Our family has been here for three gen-
erations, and plan to be here for ten generations to come,
with or without a union contract.’’
In these circumstances I would not find that ‘‘Respond-
ent’’ made unlawful ‘‘threats,’’ as alleged in the complaint,
and I would, therefore, dismiss the count in the complaint
linked to this incident. And, for identical reasons, I cannot
see in Martinez’ account of these remarks any substantial
grounds for overturning the election.
The General Counsel also seizes on another portion of
Martinez’ testimony to support the claim that in this meeting
813GONZALES PACKING CO.
25 Just as she had done previously, in recounting these remarks Martinez
sometimes purported to translate Ybarra into English, with widely variant re-
sults. (For example, ‘‘Oh, he said that Tim wanted to make an effort to give
us, you know, all to be like a raise or something like that. He wanted to make
an effort, but he couldn’t promise anything. He couldn’t promise us anything.
The reason that our wages were so low was the union’s fault. It’s mostly be-
cause of the union’s fault.’’) The quotations above in main text reflect the offi-
cial translation of what Martinez recalled when pressed to recite her recollec-
tion of the words Ybarra used in Spanish. I give no weight to any of Martinez’
own purported translations of Ybarra’s remarks made in Spanish.
26 Christie Electric, supra, 284 NLRB at 755–756.
27 Here, to accept the General Counsel’s contentions, I would have to accept
first, as literal fact, that portion of Martinez’ account which has Ybarra saying
that ‘‘Tim’’ wanted to ‘‘do better by you than the Union,’’ and then suppose
that employees would, despite Ybarra’s simultaneous ‘‘no promises’’ declara-
tions (and Horwath’s own similar emphatic declarations in larger meetings in
the same August 16–18 period), infer that what Ybarra was talking about was
‘‘better pay,’’ and then suppose that employees would further infer that Re-
spondent’s real message was that the only way to better pay would be to vote
out the Union.
28 I here rely on the uncontradicted and mutually harmonious testimony of
Tim Horwath and maintenance employee John Limos. Supplementing the
above, those witnesses testified that Limos and several other outspoken
antiunion employees, including Carl Pollack, made up and distributed scores
of such ‘‘NO,’’ or ‘‘NO UNION’’ stickers, using company-supplied sticker
rolls in at least some cases. Tim Horwath himself wore a ‘‘NO’’ sticker, and
admits that he (or Melanie Horwath) furnished blank rolls of stickers to Limos,
Pollack, and others when they requested them, and that he observed them later
marking the with ‘‘NO’’ legends and distributing or posting the.
29 Carmelita Rosario, Maria Jimenez, Martha Banuelos, Eleanor Robles,
Ernestina Garcia, and Francisca Nunez.
Ybarra ‘‘impliedly promised’’ wage increases if the Union
were voted out. Specifically, the prosecution appears to rely
on Martinez’ recollection that Ybarra said (in Spanish) that,
‘‘I don’t know what you want the union for. The only thing
the union does is take our money away from us. And it
doesn’t do anything. The union doesn’t do anything in order
to help us. That the union was responsible for our wages.’’
And, after further prodding by the General Counsel, Martinez
recalled that Ybarra said (in Spanish; emphasis added), ‘‘Tim
wants to demonstrate to you that he can do better by you
than the union. But . . . he can’t make any promises. That
we should—that Tim wanted us to give him a chance in
order to prove himself to us.’’25
I think it is evident from the foregoing that, even in this
disputed instance, what Martinez purported to recall was in
most respects strikingly similar to messages that Respondent
admittedly conveyed in documented speeches and letters to
employees, messages which the prosecuting parties do not
challenge as unlawful or objectionable. And I believe it evi-
dent, moreover, that Martinez herself was only interpolating,
rather than genuinely recalling verbatim what she heard. My
favorable impression of Martinez notwithstanding, I could
not accept any of her versions as literally accurate, and I
cannot escape the belief that all she heard were essentially
repetitions of what Respondent elsewhere admittedly said
during the campaign. In any case, it was the prosecution’s
burden to establish otherwise, and this burden was not car-
ried merely by presenting the testimony of one employee,
however sincere, whose recollection of Ybarra’s remarks in
a specific meeting varied only slightly from the formulations
repeatedly used by Respondent during the campaign. Em-
ployees’ memories of the nuances of a company campaign
speech are notoriously frail; the opportunities for misunder-
standing and is recall are great; it is at least as likely as not
that in recounting a particular formulation an employee will
substitute his or her subjective understanding of certain re-
marks for the words actually used by the company speaker;26
and these considerations make it perilous to pin a finding of
violation on such testimony, especially when key details in
that testimony are not clearly corroborated by anyone else in
attendance. And even assuming the improbable, that Mar-
tinez’ recollection were literally accurate, it still takes a rath-
er attenuated process of analysis to discover in her recon-
structions of Ybarra’s remarks an ‘‘implied promise that em-
ployees would get higher pay only if they voted out the
Union.27 Again, seen as a question of probabilities, I deem
it unlikely that Ybarra’s statements, as described by Mar-
tinez, would be taken seriously by employees as a promise
of better pay conditioned on the election outcome; more spe-
cifically, I doubt that such statements would have any greater
likelihood of being taken seriously by employees as such an
implied promise than did Respondent’s admitted communica-
tions on the subject. In the end, I think the General Coun-
sel’s contrary claims require a strained view of the context,
and an undue reliance on the literal accuracy of only some
of many of Martinez’ admitted approximations of Ybarra’s
remarks. I would therefore dismiss the complaint insofar as
it alleges that in the certain remarks described by Martinez,
Ybarra made an unlawful promise of ‘‘better wages if the
Union were voted out.’’ Similarly, I would not rely on Mar-
tinez’ testimony to find that Respondent engaged in objec-
tionable conduct requiring that the election results be set
aside.
B. By Quitevis
1. Extent of her solicitations on August 22
This is what sorting and grading floorlady Quitevis admit-
ted when examined by the General Counsel as an adverse
witness at the start of the trial: As work was about to start
on the morning of August 22, Quitevis picked up a roll of
stickers she says she discovered on a counter in the office.
The stickers, like those worn on lapels by conventioneers, al-
ready bore the written legend, ‘‘NO.’’
By that point Respondent admittedly had made blank
sticker rolls available to employees known to be opposed to
the Union, but only at their request, and those employees had
written-in the antiunion legends on these and had plastered
many similar stickers around the packing shed, on walls,
forklifts, bathroom mirrors, etc. Those employees had also
circulated the stickers among their fellow workers, and, at
the tie Quitevis ‘‘found’’ an already marked roll of ‘‘NO’’
stickers on the morning of August 22, any workers were al-
ready wearing the on their clothing (in the cage of the
Union’s steward, Librada Quesada, derisively so, on her
rump).28
Quitevis admittedly carried the roll of ‘‘NO’’ stickers to
the shed floor where, over the course of the next hour, at
least, she visited at least six workers at their various sta-
tions,29 and asked each if they wanted one. Three said they
did, according to Quitevis, and three others said they did not.
In some cases Quitevis herself placed the sticker on the
clothing of the workers who agreed to take one. Quitevis
said that she limited herself to these six employees because
they were long-tie coworkers: she also says that she already
knew their sentiments, pro or con, on the subject of union
representation because they had already expressed the to her
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 Contrary to Quitevis, Martha Banuelos credibly testified that she had
never spoken to Quitevis about her position concerning union representation
before Quitevis admittedly offered her a sticker on August 22. The sane is true
of sticker recipient Oralia Zavala (see below), who was not on Quitevis’ list
of the six persons who she admittedly approached. Moreover, as I find below,
Quitevis invited others, including new hires, to wear a ‘‘NO’’ sticker, and
there is no reason to suppose on this record that any of those employees had
already declared their own sympathies. In addition, Quitevis admits that at
least one worker declined the proffered sticker, despite Quitevis’ belief that
she was against the Union.
31 New hires Oralia Zavala, Yolanda Ramirez, and Eva Melgoza, and sec-
ond-season employee Enedina Martinez.
32 The testimony of Respondent’s witness Victoria Perez is to similar effect,
but, for reasons already noted, I have no confidence in the sincerity of Perez’
testimony about these events.
33 The General Counsel and Respondent seem to agree that the lawfulness
of Quitevis’ solicitation of employees to wear ‘‘NO’’ stickers is to be judged
under the ‘‘total context’’ standard applied to ‘‘interrogations’’ emphasized by
the Board in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel
Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). For
reasons discussed elsewhere below, I cannot fully embrace the notion that
Quitevis’ behavior was unlawful only to the extent it was interrogative in char-
acter, or that it is to be judged entirely in terms of the factors emphasized
in Rossmore House as guides for deciding the lawfulness of interrogations. 34 Br. 4 fn. 3.
in one way or another.30 She said she did not ‘‘remember’’
having invited any new hires to take ‘‘NO’’ stickers, adding
that she generally avoided the new hires because she had no
particular familiarity with them. She admits that her activities
were done in the presence of other employees, including new
hires, working on the same lines and tables that she visited
while offering stickers to the six individuals.
I find that Quitevis understated the extent of her solicita-
tions. Thus, four additional employees not named by
Quitevis,31 three of the new hires, credibly testified that
Quitevis likewise approached the in a similar manner, and
some of those witnesses recalled further seeing and hearing
Quitevis approach yet additional employees, including sev-
eral new hires, and asking if they wanted to wear a sticker.
These four additional employee-witnesses generally concede,
however, that Quitevis was ‘‘friendly’’ in her approaches,
made no demands, threats, or promises, and took no umbrage
when rebuffed. And one of those witnesses, Yolanda Rami-
rez, recalls that after asking Ramirez if she wanted to wear
the sticker, Quitevis added that Ramirez did not have to if
she did not want to.32 Quitevis was not recalled by Respond-
ent to address this additional testimony, and I generally cred-
it it.
2. Quitevis’ function and level of authority
The ‘‘level’’ of authority of a supervisor is a ‘‘factor’’ in
judging the lawfulness of his or her behavior towards em-
ployees under Section 8(a)(1), particularly so where, as here,
it is alleged that the supervisor has committed an unlawful
‘‘interrogation’’ of employees.33 This factor is also relevant
in, deciding whether the supervisor’s action, even if tech-
nically unlawful, would likely have an impact on the way
employees would mark their secret ballots in the voting
booth. Because of this, the parties, while not disagreeing that
Quitevis was a supervisory agent of Respondent, spent much
time litigating details of her role and work history.
Quitevis is one of the most senior of Respondent’s person-
nel, having worked for more than 10 years on the grading
floor as a member of the bargaining unit before assuming her
present position a few years ago. She is fluent in both
English and Spanish and, from all appearances, Spanish is
the language of the grading floor. Respondent concedes34
that Quitevis, ‘‘directs the line, rotates workers on the line,
gives instructions and training, and watches for grade.’’
Claiming, however, that Quitevis is a ‘‘low-level’’ super-
visor, Respondent asserts that ‘‘She has no authority to hire,
fire, grant leaves of absence. Her authority to discipline is
limited to verbal warnings to new hires.’’
Counsel for the General Counsel has vigorously resisted
this ‘‘low level’’ characterization of Quitevis’ supervisory
status. But I observe that she did not contend nor seek to
prove that Quitevis enjoyed a ‘‘high,’’ nor even a ‘‘substan-
tial’’ level of influence over such matters as the hiring, or
the job tenure, or the scheduling, or the wages, of employees
in her department. And even if, in ‘‘rotating’’ workers, and
in taking other discretionary actions necessary to maintain
smooth production, she thereby ‘‘affects’’ employees’ ‘‘terms
and conditions of employment’’ in a more general sense, this
only tends to prove that she is a ‘‘supervisor,’’ as Respond-
ent admits, not necessarily one that has influence over the
terms and conditions that are typically of central concern to
employees.
If there is a debate at all about Respondent’s quoted asser-
tions, it is only as to the precise scope of Quitevis’ ‘‘author-
ity’’ to issue written or verbal ‘‘warnings.’’ On this point
Quitevis, while straining to downplay her own role in em-
ployee disciplinary actions, substantially admitted that if she
chooses to bring a problem with an employee to the office,
this will trigger a written disciplinary warning to the em-
ployee. But the significance of this limited power to the ulti-
mate debate is not evident to me. For one thing, it is not un-
usual for ‘‘low-level’’ supervisors to have such powers. For
another, Melanie Horwath’s undisputed and credible testi-
mony shows generally that, while warning slips are some
times issued, formal ‘‘discipline’’ for misconduct is virtually
nonexistent (she testified that the company has fired no ore
than three employees in the past 5 years, and then only for
‘‘off the wall’’ misconduct, such as when a drunken worker
passed out in her office), and that even written warnings to
employees have had no real impact on their tenure, or eligi-
bility for recall or for pay increases (the latter being largely
governed historically by the union contract in any case).
Thus, even if Quitevis has in prior seasons directly issued
some warning slips for routine infraction (e.g., ‘‘tardiness’’),
and even if she has at least the power to ‘‘effectively rec-
ommend’’ that other written warnings be issued, it is not at
all clear that these slips have had any real adverse impact on
employees’ hire, retention, or pay.
In the end, without treating it as a controlling factor in my
analysis of the unfair labor practice issue, I deem it adequate
to characterize Quitevis’ ‘‘level’’ of authority as relatively
‘‘low,’’ consistent with her limited managerial function as a
first-line supervisor in the main department of a routine proc-
essing operation, one who is universally recognized ag being
part of the plant’s ‘‘management’’ structure, but whose more
specific function is largely limited to passing on higher-man-
agement’s processing instructions and decisions, and making
sure (mostly by nondisciplinary means) that the workers
under her supervision are properly trained, assigned and reas-
signed, and doing their work correctly. And if the General
Counsel’s case depended on a finding, which I do not think
815GONZALES PACKING CO.
35 These were points in nominal contest throughout the trial, and they occa-
sioned such on and off-the-record colloquy and review by counsel for both
parties. When, early in the trial, Quitevis gave her estimate relied upon in
main text findings above, Respondent’s counsel indirectly attempted to dis-
tance herself from it, stating, ‘‘we’ve got lots of records . . . . that could es-
tablish how many people started and left.’’ But when Melanie Horwath was
invited to testify on this point and related ones, and to disclose the fruits of
her own private review of the ‘‘records,’’ She seemed artfully to avoid it. In
the circumstances her vagueness on the central question how any sorters and
graders were, essentially, ‘‘new hires’’ in the 1989 season can only invite an
inference adverse to Respondent—that the company’s records, if produced,
would have supported Quitevis’ estimate that very few of the sorters and grad-
ers as of that date had worked regularly, if at all, for the company before the
1989 season.
36 W. T. Burnett & Co., 273 NLRB 1084, and authorities cited at 1089
(1984). And see Catalina Yachts, 250 NLRB 283, 288 (1980), enfd. 679 F.2d
180 (9th Cir. 1982), involving supervisory distribution of ‘‘VOTE NO’’ but-
tons in some ways similar to that engaged in by Quitevis, but done under more
aggravated general circumstances, including widespread additional violations
of Sec. 8(a)(1) and (3), any of which might have sufficed to set aside the elec-
tion.
37 Black Dot, Inc., 239 NLRB 929 (1978); see also Farah Mfg. Co., 204
NLRB 173 (1973); McDonald’s, 214 NLRB 879 (1974).
38 Daniel Construction Co., 266 NLRB 1090 (1983) (union supporters wore
jackets with printed prounion logo; employer made jackets with procompany
logos available for a price, and supervisors canvassed employees and offered
to write down their names and sizes for orders); W. T. Burnett, supra, 273
NLRB at 1093 (‘‘isolated’’ act by supervisor in flipping procompany button
on employee’s workbench); Jefferson Stores, 201 NLRB 672, 673 (1973) (al-
though supervisors generally distributed ‘‘Vote No’’ cards at the doors to the
plant, the cards had no pins, and employees were obviously under no com-
punction to wear them, and were, indeed, told by employer to remove them
when they started wearing them).
39 250 NLRB at 288. (Citations omitted.)
it does, that Quitevis’ level of supervisory authority was
‘‘high,’’ or even ‘‘higher-than-average,’’ I could not on this
record arrive at such a finding.
Quitevis is, nevertheless, the supervisor of 50–60 employ-
ees, and she apparently gets that job done to Respondent’s
satisfaction. This implies at the least that she enjoys the re-
spect and cooperation of employees she trains and super-
vises, and I may presume that her perceived authority as an
agent of management has as much to do with her effective-
ness as does her great experience and evident social skills.
This would see especially true where, as here, the employees
in her department were mostly new hires. (Thus, crediting
Quitevis, of the 50–60 when she regularly supervised in the
2 months preceding the election, only a relatively gall num-
ber had been employed by Respondent in any previous sea-
sons, and of these, fewer still had worked in previous sea-
sons long enough to acquire ‘‘seniority’’ for recall and other
purposes under the union contract.)35 In short, the work force
that Quitevis supervised during the period leading up to the
August 23 election was composed largely of persons without
any previous experience in the operation, without historical
familiarity with the Union’s representational role at the shed,
and without such familiarity with Quitevis herself, other than
as the person who embodied ‘‘management’’ on a day-to-day
basis.
Conclusions
I have studied the many cases cited by the parties pertinent
to the question presented by Quitevis’ solicitations and ac-
tions; like the parties, I find them only generally instructive,
not dispositive. Subject to some qualification, below, I fur-
ther agree with the General Counsel and Respondent that the
teachings of Rossmore House, supra, cannot be ignored, and
that ‘‘total context’’ must be considered in judging the law-
fulness or objectionability of the actions in question.
The precedents are harmonious on at least one basic point,
that a central statutory vice in an employer’s soliciting of
employees to wear a procompany campaign emblem is that,
like more direct forms of union-related ‘‘interrogation,’’ it
puts pressure on employees openly to declare that which they
have a right to withhold from their employer (and from their
fellow employees)—their feelings about union representa-
tion.36
Notwithstanding this, it is neither per se a violation of
Section 8(a)(1), nor does it require a rerun election, for an
employer ‘‘merely’’ to make procompany emblems ‘‘avail-
able’’ to employees. Thus, in Black Dot,37 the Board found
no violation nor interference with the election where the em-
ployer ‘‘merely provided a supply of [antiunion] buttons at
a central location,’’ where ‘‘supervisors were completely ab-
sent from the distribution process,’’ where there was no inde-
pendent ‘‘coercive conduct’’ in connection with the buttons,
and where the employer had declared in writing to all em-
ployees that wearing or not wearing a button was a ‘‘purely
personal and voluntary act which in no way will favorably
[sic] or adversely affect any Black Dot employee.’’ There,
the Board has found it important that supervisors played no
role in distributing the buttons, but in a number of other
cases (which I think are just as obviously distinguishable
from this case on their unique facts as is Black Dot), the
Board has found no violation nor interference with the elec-
tion even where supervisors were involved to one degree or
another in making antiunion or procompany regalia ‘‘avail-
able’’ to employees.38
As I have noted earlier, the supervisors’ distribution of
‘‘Vote No’’ buttons in Catalina Yachts is closer factually to
Quitevis’ actions here than in any other previously cited
cases, and there a violation of Section 8(a)(1) was found.
One arguably distinctive difference between this case and
that one is that, unlike here, the Catalina supervisors
brusquely ‘‘instructed’’ employees to wear the buttons. But
in deciding the issue, the administrative law judge, affirmed
by the Board, appears to have deemed it unnecessary to the
violation that the supervisors had thus ‘‘instructed’’ employ-
ees; thus the judge wrote (emphasis added):
By tendering the buttons to employees, and apart from
instructions that they be put on and in some instances
pinning them on, [the supervisors] ‘‘in effect forced
each employee who was approached, to manifest his
choice,’’ . . . which is improper.39
That cage thus stands as arguable precedent for a similar
finding herein. But, concededly, the Catalina finding was
made against a backdrop of more widespread violations, and
arguably, those extraneous violations might have colored em-
ployees’ responses to the particular supervisory actions found
violative. And, to that extent, Catalina does not cleanly dis-
pose of this case.
If Catalina is not fully dispositive, I must nevertheless
note that attention has been called to no case in which it was
found legally innocent for a supervisor to have done what
Quitevis did; that is, directly to approach a substantial num-
ber of employees in her department and to invite those em-
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 See, for example, Clark Equipment Co., 278 NLRB 498, 501 (1986),
dealing with two situations, one lawful (involving Covington), one not (involv-
ing Bridges). Thus the supervisors’ questioning of Covington, ‘‘an open and
active union adherent,’’ was treated by the Board as an ‘‘interrogation’’ about
union-related subjects, but not as an ‘‘unlawful’’ one where the affirmative
messages conveyed by the supervisors were themselves lawful, and the ‘‘cir-
cumstances surrounding [Covington’s] interrogation were not coercive.’’ By
contrast, when a different supervisor interrogated Bridges, another ‘‘open
union supporter,’’ the Board found a violation because the ‘‘interrogation was
accompanied by coercive comments, most particularly the unlawful threat to
make examples of employees at this plant.’’
41 I could not find it exculpatory in the circumstances that Quitevis’ actual
powers were quite limited, or that she was a ‘‘low-level’’ supervisor. Clearly
she was seen as an authority figure in her department, and the influence of
that authority would be felt by employees, especially new employees, even in
the absence of any regular resort by Quitevis to disciplinary action, or other
extraordinary demonstrations of her powers.
42 The General Counsel takes no formal position on this question, even
while conceding at trial in her opening statement that, ‘‘Essentially, we’re here
today to determine whether or not to set aside an election . . . .’’
ployees on-the-spot to choose whether or not to display an
antiunion slogan. Moreover, unlike in some cases cited
above, I could not conclude on this record that Quitevis’ so-
licitations, however ‘‘friendly,’’ were merely ‘‘casual.’’
Rather, from the nature, duration, and scope of her activities,
I conclude that she consciously had set about to enlist greater
numbers of employees in her department to join the ‘‘NO’’
campaign than had already chosen by that time (apparently
voluntarily) to manifest their sentiments by wearing ‘‘NO’’
stickers. She seems to have been rather clearly bent on a
mission not merely to encourage employees to vote ‘‘No’’
(not in itself an unlawful enterprise), but to beef-up the
showing of ‘‘NO’’ sentiment in her department. By her own
admission, it was not mere happenstance that she came into
contact with employees while carrying her roll of stickers.
Neither were her actions ‘‘isolated’’; she approached at least
ten employees directly, and in view of many of the other
workers arrayed around tables and lines in the vicinity. In-
deed, the nature, duration, and scope of her activities make
it likely that they were witnessed by most of the employees
in her department.
What is not clear in the precedents, finally, is whether or
to what degree it may be exculpatory in cases where a super-
visor solicits substantial numbers of employees to wear
antiunion devices that the employer’s campaign was other-
wise free from unfair labor practices, or that the supervisor
who thus solicits employees did not voice any specific ‘‘in-
struction,’’ or utter any threat, or offer any blandishment, in
connection with his or her invitation to employee to wear the
device. Despite the absence of clarity in the cases on these
points, I would not rely on those latter factors to excuse
Quitevis’ behavior as something less than a violation of Sec-
tion 8(a)(1).
First, I suggest that the absence of surrounding coercion
does not really neutralize the recognized coercion inherent in
an ‘‘interrogation’’ of the type used by Quitevis. Her actions
themselves tended to put at least some employees whose
union views were not public in the uncomfortable position of
making an open declaration one way or another, the very
vice recognized expressly in the cases. Perhaps more impor-
tant, even in the case of employees who may have previously
voiced antiunion sentiments to Quitevis or to others, these
particular types of solicitations involved more than ‘‘mere’’
questioning; they asked for much more than disclosure of
union sympathies; they asked the targeted employee to take
visible and immediate action, to play an active role in cam-
paigning on the employer’s behalf, to use her body ag a bill-
board for the ‘‘NO’’ message. And, as I elaborate next, this
feature, in my view, elevate the level of ‘‘pressure’’ or ‘‘co-
ercion’’ involved, and makes it largely irrelevant that the tar-
geted employee may have earlier expressed an antiunion
view by other means.
Under Rossmore House, a supervisor’s ‘‘friendly’’ ques-
tioning of a visible and unabashed union advocate will not
normally yield a finding that the questioning amounted to an
unlawful ‘‘interrogation,’’ absent coterminous threats or
promises, obviously unwanted persistence by the supervisor,
or other ‘‘independent’’ aggravating factors.40 Thus, it is pre-
sumed that such an open union advocate will not likely feel
intruded upon, or be chilled in the pursuit of protected rights,
simply because he is questioned about how open support for
a union. But I think it involves the drawing of false parallels
to apply the teachings of Rossmore House in the inverse
manner proposed here by Respondent, to suppose, in effect,
that Quitevis’ activities, at least when directed to employees
who had previously voiced antiunion sentiments, would have
no ‘‘coercive’’ impact. Two things seem clear on this record;
first, that the employees Quitevis approached had not yet
chosen to distinguish themselves by wearing a ‘‘NO’’ stick-
er, whatever their private feelings; second—and this was
made clear largely by Respondent’s evidence—such stickers
had already been made available through the widespread dis-
tributing of them by rank-and-file employees opposed to the
Union. In the circumstances, the employees approached by
Quitevis bad already given indirect indications of a sort that
they were unwilling, for whatever reason, to become visibly
associated with the ‘‘NO’’ movement. And especially in
those circumstances, I believe, Quitevis’ solicitations would
tend to be seen as ‘‘pressure’’ from management to ‘‘join the
campaign’’ even by employees who might have been other-
wise disposed to vote ‘‘No.’’41
I would thus find that when Quitevis solicited employees
to wear ‘‘NO’’ stickers, Respondent interfered with, re-
strained, and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act, and thereby violated Sec-
tion 8(a)(1) of the Act. Moreover, to remedy this violation
in this seasonal packing operation requires, in my opinion,
that Respondent post a typical notice not only for 60 con-
secutive days, but, more particularly, during a 60-day period
where the largest number of employees will be exposed to
it. For that reason, my recommended Order is specially tai-
lored to direct that posting shall occur during the peak of Re-
spondent’s next full season after this Order becomes effec-
tive, to commence on a date to be determined by the Re-
gional Director that will best effectuate these purposes.
The final question, assuredly the most important one to
Respondent and the Union, is whether Quitevis’ violations of
Section 8(a)(1) require a rerun election.42 Again, the cases
cited by those parties do not unmistakably dispose of this
question, but for reasons discussed next, I think a rerun is
not warranted, and shall recommend that the Board accord
finality to the representation question by certifying the results
of the August 23 balloting.
While ‘‘laboratory conditions’’ continue to be the goal of
every election conducted by the Board, and while the Board
still acknowledges the Dal-Tex ‘‘rule’’ (a preelection viola-
817GONZALES PACKING CO.
43 Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962).
44 278 NLRB at 505.
45 I would characterize this as a ‘‘close’’ election result. I do not find it nec-
essary to speculate about the significance of the six challenged ballots to this
characterization, particularly where it is not a matter of record which party
made the challenges, or why, or to whom. Clearly, if those ballots had been
opened and counted, and had contained ‘‘Yes’’ votes, the Union’s loss would
have been truly a squeaker; but just as clearly, the Union’s loss would have
been even more decisive if the challenged ballots were all ‘‘No’’ votes.
46 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.
47 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.’’
tion of Sec. 8(a)(1) is ‘‘a fortiori, conduct which interferes
with the exercise of a free and untrammeled choice in an
election’’43), the Board will not automatically require a rerun
election when such violations have been found. Thus, in
Clark Industries, supra,44 the Board, while acknowledging
Dal-Tex, also emphasized that,
. . . the Board has departed from this policy in cases
where it is virtually impossible to conclude that the
misconduct could have affected the election results. In
determining whether misconduct could have affected
the results of the election, we have considered ‘‘the
number of violations, their severity, the extent of dis-
semination, the size of the unit, and other relevant fac-
tors.’’ [Citation omitted.]
In attempting to apply these criteria, I recall my findings
that Quitevis’ unfair labor practice was committed repeat-
edly, with obvious calculation, was likely to have been wit-
nessed by most of the 50–60 employees in her department,
and occurred on the eve of an election that the Union lost
by only 7 votes out of 111 unchallenged ballots cast.45 And,
admittedly, these considerations would seem to weigh in
favor of applying the ‘‘a fortiori’’ rule of Dal-Tex and di-
recting a new election.
Another consideration persuades me otherwise, however.
Although Quitevis’ behavior surely visited coercion on the
targeted employees, it is less obvious how those actions
might yield a greater harvest of ‘‘NO’’ votes when, with no
one watching, employees marked their ballots. It is easier for
me to imagine that such activity would yield a ‘‘Yes’’ vote,
for it was inherent in Quitevis’ actions that they imposed on
employees’ legitimate and statutorily-protected sense of pri-
vacy; and to that extent, they might have caused even em-
ployees otherwise disposed against the Union to view union
representation more sympathetically, as perhaps the only bul-
wark against similar future impositions by their employer.
But if that kind of thinking is unduly speculative, it is surely
at least as speculative to presume otherwise, to imagine that
somehow Quitevis’ behavior could cause prounion employ-
ees, or even fence-sitters, to reach the judgment that union
representation was a bad idea. Because I cannot envision
how Quitevis’ conduct could possibly have interfered with
private choice at the ballot box, and in the absence of other
violations or aggravating circumstances, I would overrule the
objection linked to Quitevis’ behavior on August 22.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended46
ORDER
1. The Union’s objections in Case 32–RC–2915 are over-
ruled.
2. Respondent, its officers, agents, and representatives,
shall cease and desist from soliciting employees to wear or
display antiunion slogans, and from in any like or related
manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed in Section 7 of the
Act.
3. Respondent shall take the following affirmative action
necessary to effectuate the policies of the Act.
(a) Post at its Gonzales, California packing shed copies of
the attached notice marked ‘‘Appendix.’’47 Copies of the no-
tice, on forms provided by the Regional Director for Region
32, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act when our supervisor,
Marcelina Quitevis, solicited some of you to wear antiunion
‘‘NO’’ stickers on August 22, 1989. The Board has ordered
us to stop violating employee rights and to post and abide
by this notice.
Section 7 of the National Labor Relations Act gives employ-
ees these rights.
To organize
To for, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT solicit our employees to wear or display
antiunion slogans or devices.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed in Section 7 of the Act.
HORWATH & COMPANY D/B/A GONZALES
PACKING COMPANY