Grimmway Farms

National Labor Relations Board - Board Decisions

Jun 24, 1994

314 N.L.R.B. 73 (N.L.R.B. 1994)

73
314 NLRB No. 21
GRIMMWAY FARMS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by announcing and maintaining an overly broad no-solicita-
tion rule, Member Browning finds it unnecessary to rely on the
judge’s citation to Our Way, 268 NLRB 394 (1983).
2 In concluding that the Respondent violated Sec. 8(a)(1) by Co-
owner Rod Grimm’s statements to employees regarding postponing
employee health insurance benefits, the judge noted that Grimm’s
translator, Rosa Rivera, was not called as a witness. Because the
judge found that Rivera is a supervisor, the judge drew the inference
that Rivera would not have corroborated Grimm’s testimony had she
testified.
The Respondent excepts, contending that Rivera is not a super-
visor and that therefore it was error for the judge to draw the ad-
verse inference. Although we agree with the Respondent that the
record does not establish that Rivera is a supervisor, we nevertheless
find that an adverse inference is warranted in the circumstances pre-
sented here.
The Board has held that ‘‘[a]n adverse inference is properly drawn
regarding any matter about which a witness is likely to have knowl-
edge if a party fails to call that witness to support its position and
the witness may reasonably be assumed to be favorably disposed to
the party.’’ Property Resources Corp., 285 NLRB 1105 fn. 2 (1987),
enfd. 863 F.2d 964 (D.C. Cir. 1988). We note that several witnesses
offered uncontradicted testimony that they were told Rivera was a
supervisor; according to other uncontradicted testimony, Rivera had
an office in a plant consisting mostly of line employees; and most
significantly, Rod Grimm chose Rivera to interpret for him on an
extremely important labor relations matter: the availability of em-
ployee health insurance.
We find the uncontradicted facts mentioned above indicate that Ri-
vera may reasonably be assumed to be favorably disposed to the Re-
spondent. Therefore, we agree with the adverse inference drawn by
the judge regarding the Respondent’s failure to call Rivera to testify,
and we adopt the finding of the violation. See International Auto-
mated Machines, 285 NLRB 1122, 1123 (1987), enfd. mem. 861
F.2d 720 (6th Cir. 1988).
3 The eight former employees are Sergio Martinez, Luis Villa,
Trinidad Duran, Pedro Zarco, Cayetano Suarez, Jorge Gonzalez,
Herminio Romero, and Paulino Rojas.
4 Sec. 10(b) provides, inter alia, ‘‘[t]hat no complaint shall issue
based upon any unfair labor practice occurring more than six months
prior to the filing of the charge with the Board.’’
5 There is no credible evidence in the record that the employees
were told at the time of their discharge that they were ineligible for
rehire. Therefore, we find it unnecessary to address the contentions
of the Respondent that are based on the erroneous factual premise
that the employees were told at the time of their discharge that they
were ineligible for rehire in the future.
Bob Grimm and Rod Grimm, General Partners,
d/b/a Grimmway Farms and d/b/a Grimmway
Frozen Foods and General Teamsters & Food
Processors Local 87, International Brotherhood
of Teamsters, AFL–CIO; and Fresh Food &
Vegetable Workers Local 78-B, UFCW, AFL–
CIO, CLC.
Grimmway Farms d/b/a Grimmway Frozen Foods
and Teamsters Local No. 87, AFL–CIO; Fresh
Food & Vegetable Workers, Local 78-B, AFL–
CIO, Joint Petitioner. Cases 31–CA–19115, 31–
CA–19165, 31–CA–19264, 31–CA–19388, and
31–RC–6862
June 24, 1994
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On August 25, 1993, Administrative Law Judge
Burton Litvak issued the attached decision. The Re-
spondent filed exceptions and a supporting brief; the
General Counsel filed limited exceptions and a sup-
porting brief; the Respondent and the General Counsel
each filed answering briefs; and the General Counsel
filed a reply brief to the Respondent’s answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 only to the extent consistent with this Deci-
sion and Order.
The complaint alleges that the Respondent violated
Section 8(a)(1) of the Act in 1991 by refusing to rehire
eight members of the Respondent’s Arvin plant sanita-
tion crew3 who had been discharged approximately a
year earlier for engaging in a concerted work stoppage.
The complaint further alleges that the Respondent’s
statements to the alleged discriminatees at the time of
the refusal to rehire constituted an independent viola-
tion of Section 8(a)(1).
The judge recommended that the former complaint
allegation be dismissed on 10(b) grounds4 and that the
latter be dismissed on the merits. For the reasons set
forth below, we find merit in the General Counsel’s
exceptions to the judge’s disposition of these com-
plaint allegations.
The judge found that the Arvin plant sanitation em-
ployees decided among themselves to demand time-
and-a-half pay for working on Memorial Day 1990
and, when the Respondent refused their demand, they
walked off the job as a group. The entire crew was ter-
minated for their actions and the Respondent classified
them as being ineligible for rehire because they had
‘‘walked out of the job.’’5 During the last 6 months
of 1991, at times when the Respondent was hiring, the
alleged discriminatees each applied for reemployment
with the Respondent. The Respondent’s personnel
clerk, Maricella Castillo, repeated to them the informa-
tion in their personnel files, i.e., that they were ineli-
gible for rehire because ‘‘they had walked out’’ the
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 For the reasons the judge stated in fn. 25 of his decision, we
adopt his finding that Castillo acted as the Respondent’s agent with-
in the meaning of Sec. 2(13) of the Act.
7 We disagree with the judge’s statement that the facts of this case
are ‘‘remarkably similar’’ to those of News Printing Co., 116 NLRB
210 (1956). Instead, we find that case to be distinguishable. In News
Printing, unlike the situation here, there was ‘‘no evidence’’ within
the 10(b) period linking the employment decision in issue (denial of
wage increases) to the employees’ protected activities. Id. at 211.
See Paramount Cap Mfg. Co., 119 NLRB 785, 786–787 (1957),
enfd. 260 F.2d 109 (8th Cir. 1958).
8 See, e.g., Grinnell Fire Protection Systems, 307 NLRB 1452,
1454–1455 (1992).
9 Our holding is limited to cases where, as here, an employer spe-
cifically mentions an employee’s protected conduct as the reason for
not rehiring him.
For the reasons the judge stated in fn. 26 of his decision, we agree
that the scope of the remedy should properly be limited to the eight
employees named in the third consolidated amended complaint.
previous year.6 The relevant unfair labor practice
charge was filed on October 24, 1991.
Because the judge believed that Castillo’s comments
to the applicants could ‘‘refer to any number of em-
ployee actions’’ and were ambiguous, he held that
there was no evidence within the 10(b) period that es-
tablished the necessary elements of a violation. He
therefore found that the General Counsel’s case was
‘‘inescapably grounded’’ on the Memorial Day 1990
events and that those events, which occurred outside
the 10(b) period, were essential ‘‘missing proof’’ nec-
essary for finding a violation. The judge concluded
that, in these circumstances, Section 10(b) precludes
the use of the Memorial Day 1990 events and he dis-
missed the refusal to rehire allegations.
As the judge noted, it is well established that under
Section 10(b) of the Act the Board may not give inde-
pendent and controlling weight to events occurring
more than 6 months before the filing and service of the
charge. Machinists Local Lodge 1424 v. NLRB, 362
U.S. 411, 416–417 (1960). However, evidence as to
such events may be considered as background to shed
light on a respondent’s motivation for conduct within
the 10(b) period. Id. at 416; Douglas Aircraft Co., 307
NLRB 536 fn. 2 (1992).
Applying these principles here, it is clear that the
October 1991 charge does not support an unfair labor
practice finding based on the employees’ discharge in
1990. A finding of such a violation would be ‘‘ines-
capably grounded on events predating the limitations
period.’’ Machinists Local Lodge 1424, supra at 422.
The General Counsel does not, however, allege that
the Respondent violated the Act by discharging the
eight employees in 1990. Rather, he alleges that the
violation consisted of the refusal to rehire them in
1991. All the elements necessary to establish prima
facie a refusal to hire violation occurred within the
10(b) period. Thus, it is undisputed that the General
Counsel has shown that, within 6 months of the filing
and service of the charge, the Respondent was hiring,
the eight employees applied for rehire, and these em-
ployees were denied employment. In addition, we find
that the General Counsel has shown that, within the
limitations period, the Respondent advised the employ-
ees that a work stoppage of the type traditionally pro-
tected by the statute was the reason they were not
being hired. NLRB v. Washington Aluminum Co., 370
U.S. 9 (1962).
Support for this finding is found in Castillo’s own
testimony that she advised the applicants that they
were ineligible for rehire because they ‘‘walked out of
the job.’’ We do not agree with the judge that this
comment could ‘‘refer to any number of employee ac-
tions.’’ Based on our review of the record, we find no
event—other than the Memorial Day 1990 walkout—
to which the statement could relate. And, as discussed
above, although the Memorial Day 1990 walkout oc-
curred outside the 10(b) period, it may properly be
considered as background evidence shedding light on
the meaning of Castillo’s comment, which was made
within the limitations period.7
In defense, the Respondent could have sought to
show that the Memorial Day 1990 work stoppage was
not protected, i.e., that the reason it gave for not rehir-
ing the applicants was lawful.8 The Respondent, how-
ever, did not do so, and the General Counsel’s prima
facie case therefore stands unrebutted.
The judge also found that Castillo’s comments
merely repeated what was in the applicants’ personnel
files and were ‘‘too vague to have any sort of coercive
connotation.’’ As stated above, we do not agree with
the finding that Castillo’s comments were ambiguous
or vague. The judge correctly found that Castillo was
the Respondent’s agent. Thus, we see no legal signifi-
cance to the judge’s finding that Castillo was merely
repeating what was written in personnel files.
Accordingly, we find the Respondent, by Castillo’s
comments, violated Section 8(a)(1) by advising former
employees that they were ineligible for rehire because
they engaged in a concerted refusal to work. Dentech
Corp., 294 NLRB 924 (1989).9
AMENDED REMEDY
Having found that the Respondent additionally vio-
lated the Act by refusing to rehire former employees,
we amend the judge’s recommended remedy to include
a cease-and-desist order, the posting of an appropriate
notice, and an order to offer the eight discriminatees
employment and make them whole for any loss of pay
and other benefits suffered by them by reason of the
failure to rehire on their applications. Backpay shall be
computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
75GRIMMWAY FARMS
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Bob Grimm and Rod Grimm, General
Partners, d/b/a Grimmway Farms and d/b/a Grimmway
Frozen Foods, DiGorgio, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to rehire former employees because
they engaged in a concerted refusal to work.
(b) Advising former employees that they are ineli-
gible for rehire because they engaged in a concerted
refusal to work.
(c) Refusing to retain employees who have been
given leaves of absence because of their support for
the Union.
(d) Announcing, and maintaining in effect, a union
solicitation policy which prohibits employees from en-
gaging in union solicitations during their own non-
working time.
(e) Issuing warning notices or, in any manner, dis-
ciplining employees for violating the unlawful union
solicitation policy.
(f) Soliciting grievances and complaints from em-
ployees with the promise to make changes in order to
discourage them from engaging in union activities.
(g) Informing employees that, due to the presence of
the Union, it would have to postpone the implementa-
tion of an employee health insurance plan.
(h) Threatening employees with loss of jobs if they
vote in favor of representation by the Union.
(i) Threatening employees with loss of hours and
overtime if they vote in favor of representation by the
Union.
(j) Informing employees that other employees will
not be retained because of their support for the Union.
(k) Promising employees promotion to supervisory
positions in order to induce them to agree to forego
their support for the Union.
(l) Coercively interrogating employees with regard
to their union sympathies and the union sympathies of
their fellow employees.
(m) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Offer Sergio Martinez, Luis Villa, Trinidad
Duran, Pedro Zarco, Cayetano Suarez, Jorge Gonzalez,
Herminio Romero, and Paulino Rojas employment in
positions for which they applied, or if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
and privileges and make them whole for any loss of
earnings and other benefits they may have suffered as
a result of the Respondent’s discrimination against
them in the manner set forth in the amended remedy
section.
(b) Remove from its files any reference to the re-
fusal to rehire Sergio Martinez, Luis Villa, Trinidad
Duran, Pedro Zarco, Cayetano Suarez, Jorge Gonzalez,
Herminio Romero, and Paulino Rojas, and notify them,
in writing, that such has been done and that evidence
of this unlawful conduct will not be used against them
in any way.
(c) Offer Manuel Pelayo immediate and full rein-
statement to the position of forklift driver at the La-
mont facility, dismissing, if necessary, anyone who
may have been hired or assigned to the position in
which the Respondent refused to retain Pelayo on or
about December 4, 1991, or, if that position no longer
exists, to a substantially equivalent one, without preju-
dice to his seniority or any other rights and privileges,
and make him whole for any loss of earnings and other
benefits he may have suffered as a result of the Re-
spondent’s discrimination against him in the manner
set forth in the amended remedy section.
(d) Remove from its files any reference to the re-
fusal to retain in employment Manuel Pelayo, and no-
tify him, in writing, that such has been done and that
evidence of this unlawful conduct will not be used
against him in any way.
(e) Remove the written warning notice which was
given to employee Marcella Lopez Ruiz on or about
November 27, 1991, and any reference to the dis-
cipline, from its files and notify her, in writing, that
such has been done and that the written warning will
not be used against her in any way.
(f) Preserve and, on request, make available to the
Board or its agents for inspection and copying, all pay-
roll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Post at its Arvin and Lamont, California facili-
ties Spanish and English copies of the attached notice
marked ‘‘Appendix.’’10 Copies of the notice, on forms
provided by the Regional Director for Region 31 after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the third consolidated
complaint is dismissed insofar as it alleges violations
of the Act not specified in this decision.
IT IS FURTHER ORDERED that the election conducted
on May 8, 1992, in Case 31–RC–6862 is set aside and
that Case 31–RC–6862 is severed and remanded to the
Regional Director for Region 31 to conduct a second
election when he deems the circumstances to permit
the free choice of a bargaining representative.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to rehire former employees be-
cause they engaged in a concerted refusal to work.
WE WILL NOT advise former employees that they are
ineligible for rehire because they engaged in a con-
certed refusal to work.
WE WILL NOT refuse to retain employees who have
been given leaves of absence because of their support
for the Union.
WE WILL NOT announce, and maintain in effect, a
union solicitation policy which prohibits employees
from engaging in union solicitations during their own
nonworking time.
WE WILL NOT issue warning notices or, in any man-
ner, discipline employees for violating the unlawful
union solicitation policy.
WE WILL NOT solicit grievances and complaints
from employees with the promise to make changes in
order to discourage them from engaging in union ac-
tivities.
WE WILL NOT inform employees that, due to the
presence of the Union, we would have to postpone the
implementation of an employee health insurance plan.
WE WILL NOT threaten employees with loss of jobs
if they vote in favor of representation by the Union.
WE WILL NOT threaten employees with loss of hours
and overtime if they vote in favor of representation by
the Union.
WE WILL NOT inform employees that other employ-
ees will not be retained because of their support for the
Union.
WE WILL NOT promise employees promotion to su-
pervisory positions in order to induce them to agree to
forego their support for the Union.
WE WILL NOT coercively interrogate employees with
regard to their union sympathies and the union sym-
pathies of their fellow employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Sergio Martinez, Luis Villa, Trinidad
Duran, Pedro Zarco, Cayetano Suarez, Jorge Gonzalez,
Herminio Romero, and Paulino Rojas employment in
positions for which they applied, or if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
and privileges, and WE WILL make them whole for any
loss of earnings and other benefits they may have suf-
fered as a result of our discrimination against them,
less any net interim earnings, plus interest.
WE WILL remove from our files any reference to the
refusal to rehire Sergio Martinez, Luis Villa, Trinidad
Duran, Pedro Zarco, Cayetano Suarez, Jorge Gonzalez,
Herminio Romero, and Paulino Rojas, and notify them,
in writing, that such has been done and that evidence
of this unlawful conduct will not be used against them
in any way.
WE WILL offer Manuel Pelayo immediate and full
reinstatement to the position of forklift driver at the
Lamont facility, dismissing, if necessary, anyone who
may have been hired or assigned to the position in
which we refused to retain Pelayo on or about Decem-
ber 4, 1991, or, if that position no longer exists, to a
substantially equivalent one, without prejudice to his
seniority or any other rights and privileges, and WE
WILL make him whole for any loss of earnings and
other benefits he may have suffered as a result of our
discrimination against him, less any net interim earn-
ings, plus interest.
WE WILL remove from our files any reference to the
refusal to retain in employment Manuel Pelayo, and
notify him, in writing, that such has been done and
that evidence of this unlawful conduct will not be used
against him in any way.
WE WILL remove the written warning notice which
was given to employee Marcella Lopez Ruiz on or
about November 27, 1991, and any reference to the
discipline, from our files and notify her, in writing,
77GRIMMWAY FARMS
1 At the hearing, counsel for Respondent offered portions of the
representation case transcript as R. Exh. 9, and the record was held
open to permit receipt of said transcript portions with the under-
standing that Respondent and the Charging Party would reach a stip-
ulation as to the relevant pages. Apparently, there was no agreement
on such a stipulation, and counsel for Respondent filed a motion,
seeking admission of the entire transcript but drawing my attention
to only selected pages. In the foregoing circumstances, I have re-
ceived the entire transcript but have considered only those pages
specified by counsel in his motion.
that such has been done and that the written warning
will not be used against her in any way.
BOB GRIMM AND ROD GRIMM, GEN-
ERAL PARTNERS, D/B/A GRIMMWAY
FARMS AND D/B/A GRIMMWAY FROZEN
FOODS
Margaret D. Hume, Esq., for the General Counsel.
James Winkler, Esq. (Atkins, Adelson, Loya, Rund, & Romo),
of Cerritos, California, for the Respondent.
Fritz Gustav Conle, Union Representative, of Salinas, Cali-
fornia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Pursuant to
an unfair labor practice charge in Case 31–CA–19115, filed
by General Teamsters & Food Processors Local 87, Inter-
national Brotherhood of Teamsters, AFL–CIO and Fresh
Fruit & Vegetable Workers Local 78-B, UFCW, AFL–CIO,
CLC (Local 87 and Local 78-B and jointly called the Union),
on October 24, 1991; an original and first amended unfair
labor practice charge in Case 31–CA–19165, filed by the
Union on December 10, 1991, and January 31, 1992, respec-
tively; an original and first amended unfair labor practice
charge in Case 31–CA–19264, filed by the Union on Feb-
ruary 27 and April 27, 1992, respectively; and an unfair
labor practice charge in Case 31–CA–19388, filed by the
Union on May 18, 1992, the Acting Regional Director for
Region 31 of the National Labor Relations Board (the Board)
on July 14, 1992, issued a third consolidated amended com-
plaint, alleging that Bob Grimm and Rod Grimm, General
Partners, d/b/a Grimmway Farms and d/b/a Grimmway Fro-
zen Foods (Respondent) had engaged in acts and conduct
violative of Section 8(a)(1) and (3) of the National Labor Re-
lations Act (the Act). On May 13 and 14, 1992, the Union
filed timely objections to conduct allegedly affecting the re-
sults of a representation election, involving certain employees
of Respondent, in Case 31–RC–6862, and, on July 31, 1992,
the Acting Regional Director for Region 31 issued an order
consolidating the objections to the representation election and
the third consolidated amended complaint allegations and
issued a notice of hearing on the matters. Respondent timely
filed an answer, essentially denying the commission of any
of the alleged unfair labor practices. Thereafter, on August
18–21 and September 9–11, a trial on the above matters was
held before me in Bakersfield, California. At the trial, all
parties were afforded the opportunity to examine and to
cross-examine all witnesses, to offer into the record any rel-
evant evidence, to argue their legal positions orally, and to
file posthearing briefs. The latter documents were filed by
counsel for the General Counsel and by counsel for Respond-
ent and have been carefully examined. Accordingly, based on
the entire record,1 including the posthearing briefs and my
observation of the testimonial demeanor of the several wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, jointly owned by Bob Grimm and Rod
Grimm, is a partnership, duly operating under the laws of the
State of California, with places of business in Arvin and La-
mont, California, at which locations it is engaged in the proc-
essing, packaging, and nonretail sale of frozen fruits and
vegetables. In the normal course and conduct of its afore-
mentioned business operations, Respondent annually sells
and ships goods and products, valued in excess of $50,000,
directly to customers located outside the State of California.
Respondent admits that it is now, and has been at all times
material, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that Local 87 and Local 78-B each is
now, and has been at all times material, a labor organization
within the meaning of Section 2(5) of the Act.
III. ISSUES
The third consolidated amended complaint alleges that Re-
spondent engaged in various acts and conduct violative of
Section 8(a)(1) and (3) of the Act including refusing to retain
an employee in his position in the shipping and receiving de-
partment because of his support for the Union and dis-
ciplining an employee for assertedly violating an overly
broad union solicitation policy. The consolidated amended
complaint also alleges that Respondent engaged in acts and
conduct violative of Section 8(a)(1) of the Act by maintain-
ing in effect an overly broad union solicitation policy, which
prohibited employees from soliciting for the Union during
work hours and break periods; by, in June through December
1991, refusing to rehire eight former employees because they
had engaged in protected concerted activities while employed
by Respondent on the Memorial Day holiday in 1990; by
threatening employees with loss of overtime hours and a re-
duction in work hours, a loss of jobs, and delayed rehiring
of strikers if the employees voted in favor of union represen-
tation; by informing employees that they would not receive
health insurance benefits because they engaged in union ac-
tivities; by informing employees that it would not retain an
individual because of his support for the Union; by inform-
ing employees that they would not be rehired because they
engaged in protected concerted activities; by promising an
employee a promotion if he rejected the Union as the em-
ployees’ bargaining representative; and by interrogating em-
ployees about their union or other protected concerted activi-
ties. Respondent denies commission of any of the aforemen-
tioned alleged unfair labor practices and, with regard to the
alleged unlawful refusal to rehire eight former employees,
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Lamont and Arvin, which are located near Bakersfield, are ap-
proximately 5 miles apart.
3 At the hearing and in her posthearing brief, counsel for the Gen-
eral Counsel argues that I should view the maintenance crew, all of
whom were discharged by Respondent at the same time, as a class;
however, as will become clear, the only members of the so-called
class, who were actually denied reemployment during the 6-month
period preceding the filing of the unfair labor practice charge in
Case 31–CA–19115.
4 This form is utilized by Respondent for all sorts of employee ab-
sences from work and the reasons for such.
5 There is no dispute that, on being terminated, all the alleged
discriminatees immediately went to the administrative office in
DiGiorgio to get their final checks. Two, Martinez and Zarco, testi-
fied that a personnel clerk named ‘‘Marta,’’ who shall be discussed
infra, said that they had been fired for engaging in a ‘‘strike.’’ How-
ever, the testimony was directly contradicted by alleged
discriminatees Villa, who recalled Marta as only saying that she had
been instructed to give them checks, Gonzalez, who said no one
spoke to the group at the office, and Duran, who said the group had
no conversation with Marta, only telling her they were there for their
final checks.
contends that consideration of such as an unfair labor prac-
tice is barred by the Section 10(b) of the Act statute of limi-
tations.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The record establishes that Respondent is a partnership
owned by Bob and Rod Grimm; that it is engaged in the har-
vesting, packing, processing, and marketing of vegetable and
fruit products, with carrots, which account for in excess of
70 percent of its sales volume, being its primary product; and
that Respondent maintains three processing plants in Cali-
fornia, one in Lamont and two in Arvin, and an administra-
tive office in DiGorgio, which is located almost equidistant
between Lamont and Arvin.2 At the Lamont facility, at
which between 300 and 500 employees work, after removal
of their tops, carrots are sorted according to size, washed,
and packaged. The main Arvin facility (the Arvin plant) at
which approximately 400 employees work, is comprised of
five buildings, and carrots, green beans, and bell peppers are
processed and packaged at this location. The other Arvin fa-
cility, located on Malaga Road (the Malaga Road facility) is
a carrot processing and frozen storage facility; no more than
10 or 15 individuals work at this location. The record further
establishes that hiring for both facilities is done at Respond-
ent’s administrative office in DiGorgio at which personnel
clerks perform almost all the hiring functions. Valerie Rew,
Respondent’s director of personnel, maintains her office at
the DiGorgio office facility.
Union activity was ongoing at Respondent’s Lamont and
Arvin facilities during the summer of 1991, with such culmi-
nating on August 21, 1991, with the filing of a representation
petition in Case 31–RC–6860 by the Independent Union of
Agricultural Workers, Local 2344, International Brotherhood
of Painters & Allied Trades, AFL–CIO, CLC and, on Sep-
tember 4, 1991, with the filing of a representation petition
in Case 31–RC–6862 by the Union. The rival representation
petitions were consolidated by the Board, and, after the Act-
ing Regional Director for Region 31 issued a Decision and
Direction of Election on November 22, 1991, the representa-
tion election, in the consolidated cases, was scheduled for
December 17, 1991. However, after the Union withdrew its
request to proceed, based on the unfair labor practice charge
in Case 31–CA–19115, the election was canceled. Subse-
quently, the Union filed a new request to proceed, and, after
the petition in Case 31–RC–6860 was withdrawn, the rep-
resentation election in Case 31–RC–6862 was rescheduled
for, and held on, May 8, 1992.
2. The refusals to rehire
Paragraph 7 of the third consolidated amended complaint
concerns Respondent’s alleged refusal, during the last 6
months of 1991, to rehire eight individuals because they had
engaged in protected concerted activities while previously
working for Respondent. In this regard, the record establishes
that 11 individuals, employed on the Arvin plant sanitation
and maintenance crew, were scheduled to work on the 1990
Memorial Day holiday. Eight of the employees (Sergio Mar-
tinez, Luis Villa, Trinidad Duran, Pedro Zarco, Cayetano
Suarez, Jorge Gonzalez, Herminio Romero, and Paulino
Rojas), the alleged discriminatees,3 testified at the hearing
and, according to their uncontroverted and corroborative ac-
count of the events of that day, at approximately 4 p.m.,
prior to commencing their work that night, the entire crew
met and discussed that the production workers had been
given the day as a holiday and that, rather than receiving
double time or time-and-a-half for working that day, each
would be paid at his normal wage rate, and all decided that
they would threaten to ‘‘go home’’ if they were not paid at
a higher wage rate for their work that day. Accordingly, after
working approximately 2 hours, the entire maintenance crew
met with their supervisor, Javier Juarez, in a cafeteria and,
according to Jorge Gonzalez, ‘‘we told him to pay us time-
and-a-half . . . or else we would leave.’’ Juarez replied that
he could not make any decision himself on their wages for
the day and requested that, while he spoke to his superiors
at the facility and received an answer to their demands, they
continue working. The employees agreed and worked for an-
other hour. Thereupon, Juarez met with the entire crew
again, informed them that he had been unable to reach any
of his superiors and that nothing could be done that day with
regard to their demands and, according to Cayetano Suarez,
said ‘‘that whoever wanted to could stay and whoever didn’t
could go.’’ Herminio Romero testified that, as the entire
crew was ‘‘all in agreement,’’ they then all said ‘‘let’s go,’’
ceased working, and left the plant. There is no dispute that
the maintenance department employees’ work stoppage lasted
only for the remainder of their shift that night and that, when
the entire crew reported for work the next night, all were
collectively terminated by Respondent; that, on the inactive
employee worksheet,4 for each of the discriminatees, which
Ruben Oliva, the sanitation supervisor at the Arvin plant,
filled out immediately after the discharges, Oliva wrote
‘‘no’’ next to the category, ‘‘Quit. . . . Is employee
rehirable,’’ and wrote, in explanation, ‘‘employee walked out
of the job;’’ and that, in the computer record subsequently
maintained by Respondent for each discriminatee, next to the
category, termination code, is the number ‘‘4,’’ which, in Re-
spondent’s terminology, means no rehire status.5
79GRIMMWAY FARMS
6 The record establishes that Respondent’s personnel clerks are the
only representatives of the Employer with whom prospective em-
ployees meet during the employment process. Thus, the clerks give
employment applications to the applicants and receive the completed
forms; answer questions regarding job availability, take identification
photographs and give identification cards to the employees, inform
applicants of their hire, and send them to their work location.
7 Duran described ‘‘Marta’’ as being short, thin, between 28 and
30 years of age, and wearing glasses. He added that Marta was not
Maricella Castillo, one of the personnel clerks in the DiGiorgio of-
fice.
8 During cross-examination, Duran admitted that, on his 1991 em-
ployment application, he gave an ‘‘emergency in Mexico’’ as the
reason he left his previous job with Respondent and that such was
correct. During redirect examination, Duran stated that the emer-
gency occurred after his termination.
9 Marta was the personnel clerk who had checked his original em-
ployment application and sent him to work and who was between
27 and 30 years of age, slightly overweight, and had black hair.
Approximately 13 months later, in June or July 1991, inas-
much as Respondent was hiring at the time, Trinidad Duran
went to Respondent’s administrative office, in DiGorgio, to
seek reemployment. He filled out an employment application
and spoke to one of the female personnel clerks,6 who was
responsible for processing employment applications and who
he knew as ‘‘Marta.’’7 According to Duran, Marta checked
the computer, asked Duran to follow her to an inside office,
‘‘and she told me that I couldn’t have any employment in
any part of the company because of what had happened the
year before.’’8 Two other discriminatees, Sergio Martinez
and Luis Villa, together reapplied for jobs with Respondent
in October 1991. As he was uncertain as to the date, Mar-
tinez’ pretrial affidavit, in which he recalled October 14 as
the date he and Villa went to Respondent’s office to seek
new employment, was admitted into the record as ‘‘past
recollection recorded.’’ Martinez testified that the personnel
clerk, to whom they spoke, was ‘‘Marta,’’ who he described
as having blond hair and being 30 years old and ‘‘not too
big or too short.’’ Marta gave each an employment applica-
tion form, and, after they returned the completed application
to Marta, she advised them to telephone the office as to pos-
sible hiring. Two or three days later (October 18 as set forth
in Martinez’ affidavit), he and Villa returned to the office
and again spoke to Marta, who, according to Martinez, said
she would ‘‘check the computer. And she displayed our
record and said we would not have work there again.’’ Dur-
ing his testimony on counsel for the General Counsel’s case-
in-chief, Luis Villa recalled that, on going to Respondent’s
office to seek reemployment, he and Martinez completed em-
ployment applications and spoke to the personnel clerk
Marta, who he recalled as being a light-skinned Latin person,
thin, and with black hair and as working with Maricella
Castillo. Told to return in order to check on job availability,
Villa and Martinez returned to the office 2 days later, and,
according to Villa, ‘‘Marta told us that there was [an order]
in the computer . . . that they couldn’t give us work there
because of the strike that we had done and that we would
never again have work.’’ However, while testifying during
rebuttal, asked by me if, in fact, Marta had used the word
strike, Villa said, ‘‘no’’ and that Marta’s actual words were,
‘‘For the problems that had happened.’’
According to Cayetano Suarez, subsequent to his dis-
charge, he submitted new employment applications to Re-
spondent on three different occasions, with the last time
being December 1991, a time when Respondent was hiring
workers. On that occasion, Suarez testified, he spoke to the
personnel clerk, named Maricella, who told him ‘‘We can’t
take you because you’re one of the ones who did a strike.’’
Pedro Zarco testified that, in September 1991, he ventured to
Respondent’s office in order to seek work, filled out an em-
ployment application, and was told by the personnel clerk
Marta9 to return the next day. According to Zarco, he did so,
and Marta said she would check the computer file on him,
‘‘and she told me I had a bad record. And that’s why they
couldn’t give me work any more in the plant, because of
what happened before.’’ Two other alleged discriminatees,
Herminio Romero and Jorge Gonzalez, went together to Re-
spondent’s DiGorgio office in October 1991, seeking reem-
ployment. Each completed an employment application and
was told to check with the office if any job openings existed.
After a month and aware that Respondent was hiring, they
returned to the office, and a personnel clerk, named Marta,
informed them that their applications had been lost. Accord-
ing to Romero, Gonzalez asked if there was a problem.
Thereupon, Marta went into a small, backroom, spoke on the
telephone, returned, and ‘‘said I’m sorry but you guys cannot
work . . . because of the problem we had had.’’ According
to Gonzalez, subsequent to completing employment applica-
tions, when he and Romero returned to Respondent’s office,
the personnel clerk Marta checked in the computer; took
them to a separate room, and said there was ‘‘no more work
there, because what had happened with the strike.’’ During
cross-examination, Gonzalez changed his testimony, stating
that what Marta said was that he wouldn’t be rehired because
he had ‘‘abandoned’’ work. Then, he changed his testimony
again, reiterating that Marta had used the word, ‘‘striking.’’
Thereupon, the witness was confronted with his pretrial affi-
davit in which he did not use the word ‘‘striking.’’ Finally,
alleged discriminatee Paulino Rojas testified that, in Novem-
ber 1991, he went to the DiGorgio office and filled out an
employment application and that, since that time, no one has
contacted him for work.
Maricella Castillo testified, during direct examination, that
she worked in Respondent’s personnel and payroll depart-
ments in the period June through December 1991; that, dur-
ing said time period, she handled numerous job applications;
that, although she knew Martinez, Villa, Duran, and Gon-
zalez by sight, she could not recall handling their employ-
ment applications or those of Zarco, Suarez, Rojas, or Ro-
mero during the latter half of 1991; and that no one named
Marta worked with her in the office. Further, Castillo specifi-
cally denied telling any employee that he was ineligible for
rehire because he had engaged in a strike or because he had
engaged in a concerted refusal to work. During cross-exam-
ination, Castillo testified that Eva Jimenez worked as a per-
sonnel clerk with her during the above time period and that
they had the same scope of authority. With regard to check-
ing the computer for past employment with Respondent,
Castillo stated that when applicants answer affirmatively to
the employment application question regarding past employ-
ment with Respondent or ‘‘if we seem to think that they
have . . . we look up their application.’’ Asked the proce-
dure if termination code ‘‘4’’ appears, Castillo replied,
‘‘Then I can tell them that they’re not rehirable’’ without
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 According to Ruiz, employees are paid for break periods, and
‘‘the only thing they take out is the half hour for lunch.’’
checking with her supervisor, Sue Kelly. Asked if she ever
examines the applicant’s personnel file as to the reason for
not being eligible for rehire, Castillo responded that such de-
pends on the applicant’s desire; if the applicant asks, ‘‘I’d
pull out their employee file,’’ and, if the reason is there, ‘‘I
would tell them.’’ Castillo averred that she had a vague
recollection of one of the group of alleged discriminatees
asking about why he was not eligible for rehire. In that
event, the procedure is ‘‘there is a hall that separates the
lobby from . . . everybody else. So what we’d do is I’d ask
the person to come into the hall, and then I’d tell them, ‘You
know, you’re not rehirable.’’’ Thereupon, after being shown
several of the alleged discriminatees’ inactive employee
worksheets, Castillo admitted that several did reapply for
jobs; that they previously had ‘‘walked out’’ was the reason
for their no rehire status; that ‘‘they probably did’’ inquire
as to why they were not eligible for rehire; and that ‘‘it’s
possible’’ she told the alleged discriminatees that they were
not eligible for rehire because they had walked out the pre-
vious year.
Eva Jimenez testified that she worked in Respondent’s ad-
ministrative office as a personnel clerk from June through
mid-October and, thereafter, as the benefits coordinator. Ji-
menez, who was identified by Luis Villa, during rebuttal, as
the personnel clerk Marta, described the personnel clerks’
role in the hiring process as, after accepting job applications,
‘‘we would hire people as they were needed throughout the
shed.’’ Elaborating, Jimenez said that her supervisor, Sue
Kelly, would assent to the hiring, and the clerk would then
contact the employee to return to Respondent’s office. Then,
‘‘we would . . . proceed with offering them what the posi-
tion was, what it paid, explain it to them . . . then we would
fill out their [tax forms and] I.D. pictures would be given
out. We would issue them a handbook, and they were to read
that . . . and we would send them out to work after that.’’
While unable to recall the exact date, Jimenez testified that
she ceased working as a personnel clerk in the second or
third week of October and received no employment applica-
tions after October 14. Jimenez denied knowing any of the
alleged discriminatees; however, when asked if it was pos-
sible that she looked at their employment applications, she
replied, ‘‘I could have.’’ Further, when asked if she ever
checks past employee inactive worksheets, Jimenez stated,
‘‘If they asked why they had a no rehire, then we would tell
them why.’’ As to where such was done, ‘‘I take them out
to the hall and explain to them they have no rehire status.’’
Finally, Jimenez denied ever telling applicants that they
could not be rehired because of a strike and stated that no
rehire status based on walking off the job is ‘‘common’’ for
Respondent.
3. Respondent’s alleged unlawful no-solicitation rule
Paragraph 6 of the third consolidated amended complaint
concerns Respondent’s maintenance of an allegedly unlawful
no-solicitation policy and two separate instances of allegedly
unlawful conduct. The first allegation concerns current em-
ployee Maria DeBedolla, who works at the Arvin plant sort-
ing carrots and testified that, one afternoon shortly after the
Union’s recognition campaign began in August 1991, her su-
pervisor, Corina Sierra, who, Respondent admitted, is a su-
pervisor within the meaning of Section 2(11) of the Act, ap-
proached and pulled her out of her sorting line and, ‘‘outside
of the department’’ where the two were alone, ‘‘she [asked]
me . . . if I knew that during work hours I couldn’t talk
about the union. . . . She told me that she didn’t want me
to converse with my friends at the plant about the union, that
she didn’t want the union to come in. . . . She [asked] me
if I wanted the union to enter. I said yes. She told me she
didn’t. . . . She told me that she didn’t want me speaking
in the plant with my co-workers about the union.’’ During
her testimony, Sierra, who recalled such an incident occur-
ring in November or December 1991, stated that she ob-
served DeBedolla talking and not working and that ‘‘we
don’t mind if they talk, just as long as they do their job.’’
Accordingly, she approached the employee, and ‘‘I took her
outside and brought it to her attention she was talking too
much on the line; she wasn’t doing her job.’’ DeBedolla did
not deny the conduct and said, ‘‘All right.’’ Sierra recalled
nothing more about the conversation and denied mentioning
the Union, breaktimes, or working hours. During cross-exam-
ination, Sierra recalled repeating the work rule to DeBedolla
that ‘‘they’re allowed to talk just as long as it doesn’t inter-
fere . . . with their work.’’
The second incident involves current employee Marcella
Lopez Ruiz, who works as a sorter on line 4 at the Arvin
plant. According to Ruiz, while working on the morning shift
on November 27, she was called to the supervisor’s office
by Eleno Cuevas, the foreman, who, the parties stipulated, is
a supervisor within the meaning of Section 2(11) of the Act.
On entering the office, Ruiz observed that Cuevas and
Maricella Zaragosa, an employee who performs interpreting
work, were there. According to Ruiz, Cuevas said, ‘‘I called
you into the office because somebody called . . . that you
were talking on the line about the union with another
woman. And you know that right now is bad, because here
it’s prohibited to speak about the union during work hours.’’
Ruiz asked for the name of the informer, but Cuevas refused
to divulge the person’s identity. Then, ‘‘he told me he would
give me an oral warning but to please not do it again.’’ At
that point, Eddie Rosson, the production manager at the
Arvin plant and an admitted supervisor within the meaning
of Section 2(11) of the Act, entered the office and asked
what was going on. Cuevas explained ‘‘that they had called
me because I was talking about the union and that he was
going to give me an oral warning.’’ Rosson responded that
the warning should be in writing and told Maricella to write
it in English. Thereupon, the latter drafted a written warning
in English, showed it to Cuevas, and asked if it was correct.
Cuevas said, yes, and said to Ruiz, ‘‘it’s the same thing I
just repeated to you.’’ Rosson then examined the disciplinary
notice and explained Respondent’s policy to Ruiz—‘‘He told
me that you couldn’t talk about the union during work hours
or during break because it was during the time that the com-
pany was paying. Only during lunch or after I got off.’’10
Rosson added that the warning notice would remain in her
personnel file for 6 months if she behaved. The warning no-
tice, General Counsel’s Exhibit 4, reads as follows: ‘‘They
talked to me in the office, about she was talking with other
people at the High Grader, about the Union and specifically
to get more signatures against the Company in regular work
time, not on lunch time.’’ During cross-examination, Ruiz
81GRIMMWAY FARMS
11 Respondent admitted that both Hernandez and Diaz were super-
visors within the meaning of Sec. 2(11) of the Act.
12 Pelayo’s term in jail was to be 27 days; however, due to over-
crowding in the jail, the custom in the Lamont criminal court system
is to reduce jail sentences by one-third. Presumably, Pelayo would
have been informed of this practice by his attorney.
admitted speaking to a coworker about the Union that morn-
ing but denied soliciting signatures or leaving her work sta-
tion in order to speak to the other worker.
There is no dispute that an incident, involving Ruiz, oc-
curred. According to Eddie Rosson, on returning from a
meeting at another building, he happened to observe that a
meeting was ongoing in the production office between Eleno
Cuevas, Maricella Zaragosa, the raw product coordinator, and
employee Ruiz. Rosson entered the office and asked what
was going on, ‘‘and Eleno Cuevas responded that he was
reprimanding an employee for leaving [her] work station and
entering another work station during . . . normal working
time.’’ Rosson turned to Ruiz and asked if this was true, and,
assertedly, Ruiz admitted the allegation. Rosson then asked
why, and she replied that she ‘‘was talking to employees on
the other line, trying to get them to sign union cards, and
I asked her if she knew that she was not to leave her work
station for any reason other than to go to the bathroom un-
less she asked for permission . . . and she said she was not
aware of that.’’ Ruiz added that she had a right to speak to
employees about the Union, and Rosson reiterated the above
‘‘work policy’’ and said that, if she needed to speak to em-
ployees at another work station, she should do so ‘‘only dur-
ing your lunches, breaks, before and after work, during
worktime our primary function here is to achieve our work
goals.’’ Cuevas interjected that this should be a verbal warn-
ing, but Rosson asked that the warning be put in writing so
Respondent would have ‘‘some reference’’ if Ruiz repeated
the misconduct. Further, testifying that he did not see Gen-
eral Counsel’s Exhibit 4 until a later time, Rosson denied
any instructions to Cuevas to give Ruiz a written warning—
‘‘I just asked him to put something in writing stating that we
had counseled the employee.’’ In support of this assertion,
notwithstanding that it was produced pursuant to a subpoena
for written reprimands, Rosson testified that General Coun-
sel’s Exhibit 4 was not forwarded to Respondent’s personnel
office, which would have been the standard procedure for a
written warning; rather, it was retained in a ‘‘back-up em-
ployee file to keep copies of information on employees in re-
gard to safety incidents or anything like that.’’ Finally,
Rosson stated that what Ruiz violated was Respondent’s pol-
icy against ‘‘leaving the work station’’ and that Respondent
has no policy against prohibiting employees from discussing
union affairs during work hours—‘‘I have no way of control-
ling talking anyway. So as long as it doesn’t interfere with
work.’’ During cross-examination, Rosson averred that the
only reason he retained the warning notice was because Ruiz
signed it.
During his direct examination, Eleno Cuevas testified that
the meeting on November 27, 1991, was as a result of Ruiz
asking people to sign union cards and ‘‘bothering’’ new em-
ployees about the Union. According to Cuevas, he told Ruiz
that he couldn’t prohibit her from talking to the people but
‘‘the problem is that she would jump the line . . . she kept
changing positions, and I wanted her to stay in the one posi-
tion.’’ Then, Rosson came in and asked what was going on,
and Cuevas explained ‘‘what was going on the line and he
did not want to have a problem.’’ Cuevas added that Ruiz
admitted engaging in the disciplinary conduct, and what was
explained to her was put into writing—‘‘That we had talked
so that she could understand us, that we don’t have problems
of her talking with the people; the problem is that she jumps
the line when we have each person designated to work.’’
During cross-examination, asked if Zaragosa was told what
to write on General Counsel’s Exhibit 4, Cuevas admitted
that he and Rosson told her what to write on the rep-
rimand—‘‘Eddie Rosson and I were talking.’’ He further ad-
mitted that Rosson was present when Maricella Zaragosa
drafted General Counsel’s Exhibit 4 and denied that Rosson
ever instructed him not to consider the document as a dis-
ciplinary warning. Asked if Rosson instructed him to place
the warning in writing, Cuevas said, yes, and added, ‘‘We
had to put it in writing because of what was happening. . . .
It wasn’t the first time. We didn’t want this to happen
again.’’ He added that Rosson was aware that the time,
meaning the preelection period and the ongoing union cam-
paign, ‘‘was difficult for us.’’ Finally, Cuevas confirmed that
Rosson told Ruiz that the warning would remain in her per-
sonnel file for 6 months.
4. The Manuel Pelayo leave of absence
Paragraph 8 of the third consolidated amended complaint
alleges that Respondent refused to retain employee Manuel
Pelayo in its shipping and receiving department because of
his support for the Union. In this regard, the record estab-
lishes that, until November 18, 1991, Pelayo had been em-
ployed as a forklift cargo driver and loader in the shipping
and receiving department at the Lamont facility at which Ma-
thias Hernandez is the shipping supervisor and Jose Diaz is
the night shipping supervisor.11 Pelayo testified that, as he
had worked for companies whose employees were rep-
resented by unions, he spoke to coworkers about the Union
‘‘in the way that the union was better for us as a company’’;
that he was ‘‘a little more’’ vocal than other employees on
the subject; and that, while he never wore a union button or
distributed union literature, he had separate conversations
with Hernandez and Diaz during which he expressed his be-
lief that the Union would be beneficial because of the in-
creased benefits. The record reveals that, in September 1991,
Pelayo had been convicted of driving while intoxicated and
was sentenced to serve time in the Lamont jail and that, in
late October or early November, Pelayo learned that he was
to begin serving an 18-day jail sentence12 on November 18.
According to the alleged discriminatee, from the end of Oc-
tober until on or about November 15, he sought permission
from Hernandez for a leave of absence in order for him to
serve his jail sentence. During one conversation, Pelayo in-
formed Hernandez that he had been caught driving under the
influence and, in another, while the two were alone in the
shipping department office, he told Hernandez ‘‘that I had to
go do 18 days in jail and I needed permission for the 18
days and that when I came back if I would have my job. He
said yes.’’
Pelayo testified that he began serving his sentence on No-
vember 18, was released on December 4 at 1:30 a.m., and,
later in the morning, telephoned Hernandez at the Lamont fa-
cility and inquired as to his job. Hernandez replied that ‘‘it
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Jose Diaz denied having either of the alleged conversations. Fur-
ther, he stated that Miguel Garcia is Pelayo’s brother-in-law and quit
his job with Respondent and that Fernando Romero was laid off.
The ‘‘Bob,’’ to whom Diaz referred in his asserted conversation
with Garcia, apparently was Robert Giragosian, the individual in
charge of Respondent’s fresh produce division. He testified and de-
nied telling anyone that Pelayo could not return because of his sup-
port for the Union.
14 Asked if he had authority to grant a leave of absence, Her-
nandez replied, ‘‘Yes, I did. Up to two weeks.’’ He denied any au-
thority to grant a longer leave of absence. He was corroborated, in
this regard, by Valerie Rew, who testified that ‘‘[supervisors] can
grant a leave of absence for up to two weeks. Anything higher than
that, they generally contact me, and I check with the general man-
ager of the division.’’ Contradicting Rew and Hernandez were Su-
pervisors Socorro Montes and Corina Sierra, both of whom, under
questioning by me, admitted that they have authority to grant leaves
of absences, that, depending on the situation, they are permitted to
grant such leaves for longer than 2 weeks; and that they can do so
without first checking with higher management. However, it appears
that Rew’s testimony, on this point, is consistent with her testimony
during the representation case hearing, which was held in mid-Sep-
tember and prior to the Pelayo absence.
15 Diaz corroborated Hernandez that the latter asked him to call the
local jail to find out if Pelayo was incarcerated there. Diaz testified
that he did so and was told that no one, under that name, was in
custody at that facility.
was slow.’’ Pelayo said he wanted his job back, and the su-
pervisor instructed him ‘‘to check the following week.’’
Thereafter, on the following Monday, Pelayo again tele-
phoned Hernandez, and, according to Pelayo, Hernandez
again said ‘‘to check again later because it was slow.’’ Two
or three days later, in the morning, Pelayo went to the La-
mont facility and confronted Hernandez outside his office,
and ‘‘I asked him what was the reason why . . . he wasn’t
giving me my job, if he had another person in my place.’’
Hernandez responded that someone had replaced him as the
forklift driver but ‘‘that he was only going to be there for
two or three days only.’’ Pelayo said that he wanted the
work, and Hernandez again said it was ‘‘very slow’’ and
suggested that Pelayo seek unemployment. Immediately after
speaking to Hernandez, Pelayo went to the DiGorgio office
and spoke to Valerie Rew, the director of personnel, about
not being able to return to work, and, later that same day,
he returned to the Lamont facility and again spoke to Her-
nandez, saying he wanted to speak to Mike Skaggs, the oper-
ations manager at the Lamont facility. Thereupon, Pelayo
met with Hernandez and Skaggs in the latter’s office. Pelayo
testified, ‘‘I told Mike . . . that I had asked Mathias for per-
mission and that he had told me when I came back I would
have my job.’’ Hernandez responded ‘‘that he did not under-
stand that I asked for 18 days. . . . I said he knew perfectly.
On several occasions I told him it was 18 days . . . and he
heard me perfectly.’’ Skaggs then interjected ‘‘that they were
changing systems and that . . . Mathias had said . . . I had
quit.’’ Pelayo said that Hernandez was lying and ‘‘he knew
I had asked for permission.’’ There was no reply, and Skaggs
‘‘only said they were very sorry but . . . they couldn’t do
anything.’’
Counsel for the General Counsel argues that Respondent’s
failure to return Pelayo to work was motivated by his support
for the Union. In this regard, Miguel Garcia, a current em-
ployee in the shipping department at the Lamont facility, tes-
tified that, in late November 1991, he was acquainted with
Pelayo and was aware he was serving a jail sentence. He tes-
tified further that, a week before Pelayo was scheduled to be
released, he had a conversation with Jose Diaz, the night
shipping supervisor, in the shipping office at approximately
9 p.m. ‘‘I . . . asked [Diaz] what was going to happen with
Pelayo when he got out of jail.’’ Diaz replied ‘‘that Mathias
had told him that Bob or Mike had said that they weren’t
going to give him work because he was talking about the
union too much.’’ Garcia stated that he did not reply and left
the office. Fernando Romero, a current employee in the ship-
ping department, testified to a similar conversation with Jose
Diaz. According to him, one afternoon in early December
with Pelayo about to complete his jail sentence, just before
the lunch break, he was with a group of five other employees
at a table in the shipping area and saying to Antonio
Contreras, the individual who had replaced Pelayo, that his
job was about to end with Pelayo coming back. At that point,
Diaz, who must have overheard Romero’s remark, ap-
proached and said that Pelayo was not coming back. Romero
asked why, and Diaz said that ‘‘Mathias Hernandez says he’s
not going to come back because he talks about the union too
much.’’13
Shipping Supervisor Mathias Hernandez testified that Fri-
day, November 15, 1991, was the last day Pelayo worked for
Respondent and that he (Hernandez) spoke to Pelayo outside
the shipping office. According to Hernandez, ‘‘[Pelayo] told
me that he had to go to court; he had some problem with
the law and he had to find out if he was going to pay the
fines or was going to go to jail. He . . . wasn’t sure whether
he was going to go. . . . He asked me if he could have
some time. I didn’t know if I could or not. I asked him spe-
cifically if he knew how long it was going to take. He said
he wasn’t sure, probably about eight days. . . . I told him
when he was sure, to let me know.’’14 Denying that he even
gave Pelayo permission to be absent for 8 days, Hernandez
further testified that Pelayo failed to report for work the fol-
lowing week; that, in midweek, unaware where Pelayo was
but recalling their Friday conversation, he asked Jose Diaz
to call the local jail in order to ascertain if Pelayo was there;
that Diaz subsequently reported that the jail had no record
of the incarceration of anyone named Pelayo;15 and that an-
other forklift driver was then hired on a permanent basis.
Thereafter, Hernandez continued, in early December, Pelayo
came to the plant and the two spoke in front of the shipping
office. Pelayo told Hernandez that he had been released from
jail and ‘‘said that he was ready to work, and I told him that
I had replaced him . . . with another forklift driver.’’ Her-
nandez recalled that Pelayo ‘‘wasn’t too pleased’’ with what
he had been told and that, later in the day, he attended a
meeting in Mike Skaggs’ office with Pelayo present. Accord-
ing to Hernandez, ‘‘Mr. Pelayo told Mike that . . . he
thought we had an understanding that he had [a leave of ab-
sence] and the should be able to come back to work. . . .
Mr. Skaggs asked me if I actually gave him a leave of ab-
sence, and I told him no’’ and added that they had been un-
83GRIMMWAY FARMS
16 Michael Skaggs testified, during cross-examination, that he
‘‘vaguely’’ recalled the meeting in his office and that, rather than
concerning whether Hernandez had granted a leave of absence to
Pelayo, ‘‘there seemed to be a disagreement between Manuel and
Mathias regarding the length of time that [Pelayo] thought he was
granted.’’
17 Rew testified that the language of R. Exh. 3 ‘‘was done in con-
junction with [Sue Kelly] . . . and I just gave her my input.’’ How-
ever, Rew specifically denied knowledge of the source of the ‘‘one
week’’ language, stating that Kelly ‘‘may have put the one week in
there, in her interpretation of what had happened. I just gave her
some of the basics, and she formulated it.’’ Sue Kelly, the personnel
payroll supervisor, testified that she and Rew drafted the document,
but she could not recall the source of the information contained in
it.
18 The parties stipulated that Agraz acted as an agent of Respond-
ent within the meaning of Sec. 2(13) of the Act.
able to locate Pelayo in jail.16 Finally, Hernandez admitted
being aware of Pelayo’s prounion sympathies and failed to
deny informing Jose Diaz that Pelayo would not return be-
cause of his support for the Union.
The record evidence establishes, and there is no dispute,
that Valerie Rew acted promptly on Pelayo’s complaint
about not being returned to his job on being released from
jail. Thus, according to Rew, she immediately contacted Her-
nandez, who said that Pelayo had been in jail and had not
returned to work. Rew told him that Pelayo believed that he
had been granted a leave of absence and that Hernandez was
aware he would return. She asked if Hernandez had any doc-
umentation, and the latter said there was none as he believed
Pelayo would ‘‘get back to him as far as the leave’’ and had
not done so. Based on what he told her, Rew concluded that
Hernandez ‘‘did give [Pelayo] some time off’’ but was un-
sure how long. Accordingly, Rew telephoned Skaggs and,
with Hernandez in Skaggs’ office, told them her feeling
‘‘that there was some type of a misunderstanding on both
parts possibly’’ and asked if either objected to placing Pelayo
elsewhere. Neither did.’’ Subsequently, in mid-December,
after Pelayo executed a document, Respondent’s Exhibit 3,
stating that he had been ‘‘granted a leave of absence for one
(1) week’’17 and that what had occurred was merely the re-
sult of a ‘‘misunderstanding,’’ he was given a sorting job at
the Arvin plant and began working there at the same wage
rate as he had received at Lamont.
5. Allegedly coercive statements and interrogation
Paragraph 9 of the third consolidated amended complaint
contains allegations of coercive statements and interrogations
by various agents, supervisors, and management officials of
Respondent commencing at the start of the Union’s organiza-
tional campaign in August 1991 and continuing to shortly
before the May 8, 1992 representation election. Thus, para-
graph 9(a) alleges that, in August, a labor relations consult-
ant, employed by Respondent, solicited grievances from em-
ployees, thereby implicitly promising them improved terms
and conditions of employment. In this regard, Jeffrey Green,
Respondent’s general counsel, testified that Respondent uti-
lized the services of a labor relations consultant, Jose Agraz,
in late August 1991 and that Agraz met with groups of em-
ployees for ‘‘perhaps three or four days.’’18 Employee
Calixto Orellana, who works in the sanitation department at
the Arvin plant, testified that, in the third week of August
during the Union’s organizing campaign, he attended an
afternoon meeting, at which between 100 and 125 employees
were present, in the cafeteria for line 3. The meeting was
conducted by a man named Jose, who said ‘‘that he had been
hired by the company to explain to us the campaign for the
union. . . . He said that the union would cause ruin within
the company and that . . . the employees . . . would be-
come enemies. . . . He asked the people . . . to explain the
problems and he would then relate them to the . . . boss and
he would try to resolve it.’’ Corroborating Orellana, Arvin
plant maintenance employee, Francisco Villalobos testified
that, in August, he attended an employee meeting in the line
3 cafeteria at which between 55 and 100 employees were
present. It was conducted by a Latin man of medium height
and approximately 35 years old. ‘‘He said he was rep-
resenting the boss and wanted to know why they were un-
happy, what problems they had. To tell him and . . . he
would go and tell the boss,’’ who would ‘‘try to solve the
problems.’’ The speaker continued, imploring the employees
not to sign anything or to become committed to a card and
saying ‘‘that Mr. Grimm was going to talk to the employees
and try to resolve the problems.’’ A third employee, Victoria
Ramirez, who works on line 2 at the Arvin plant, testified
that she also attended an employee meeting one morning, at
the end of August—when the Union commenced distributing
flyers outside the plant. A 30-year-old Latin man, who intro-
duced himself as a representative of Respondent, spoke and
asked ‘‘what problems did we have, that the owner was very
busy. He didn’t know what’s happening with us. Maybe he
would report it and see what he could do for us.’’ Respond-
ent called no witnesses to controvert the foregoing testimony.
Paragraph 9(e) of the third consolidated amended com-
plaint alleges that one of the owners of Respondent, Rod
Grimm, unlawfully informed employees that they would not
receive health insurance benefits because of the Union. In
this regard, Rod Grimm testified that, in May 1991, prompt-
ed by ‘‘what . . . our competitors in the field were offering
their employees,’’ Respondent began considering providing
health insurance benefits for all employees. According to
Grimm, he asked Valerie Rew to provide him with options,
and he consulted with accountants and attorneys. The latter
consultations were ‘‘very early in September’’ and, in view
of the filing of the representation petition, in Case 31–RC–
6860, on August 21, concerned whether Respondent could
lawfully implement a health insurance plan; Grimm re-
quested a written legal opinion addressing Respondent’s con-
cerns. Meanwhile, after a supervisor approached Grimm and
informed him that there had been numerous requests by em-
ployees for meetings with him, Grimm decided to hold a se-
ries of worker meetings and, within a month, conducted 12
to 15 such meetings. He testified that there was no format
to them and that he usually listened to the comments of the
assembled employees and, through an interpreter, answered
their questions. He added that the topics generally were
wages, health insurance, paid holidays, and others.
Two employees testified with regard to meetings, at which
Grimm spoke and which they attended. Maria DeBedolla tes-
tified that, in about the beginning of September 1991, after
the commencement of the Union’s election campaign, she at-
tended a meeting, with only four other employees, conducted
by Grimm, and ‘‘[the owner] . . . told us that he knew that
we were trying to involve the union . . . because we wanted
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Judy Castillo specifically recalled a meeting at which, as it
began, Orellana raised his hand and, after being recognized, said that
President Reagan was a criminal, running drugs from Columbia, and
the country needed a leader like Fidel Castro. According to Castillo,
she interrupted and told Orellana to stop. Thereupon, he placed his
head down on a table for the remainder of the meeting. Sanitation
supervisor, Ruben Oliva, who stated that he was at this meeting, cor-
roborated Castillo that Orellana interrupted Castillo and made some
comments about Reagan and Bush selling drugs but did not corrobo-
rate her with regard to Orellana putting his head down for the re-
mainder of the meeting. Also, corroborating Castillo, was employee
Ricardo Torres Guillero, who stated that ‘‘Calixto started talking
about the Government. President Reagan sold arms to Noriega. He
was told we weren’t here to discuss that subject; we’re here to talk
about the union. That’s all.’’ Guillero added that Orellana then laid
his head down of the table for ‘‘two or three minutes.’’
insurance. And we answered more or less. And he said that
he didn’t think that we needed a union representation for in-
surance.’’ At that point, according to DeBedolla, she inter-
jected that the employees had appealed to the Company on
three occasions for insurance and there had been no re-
sponse. Grimm denied ever seeing such appeals, said he was
talking to them because Rosa Rivera, his interpreter, had in-
formed him that the employees wanted insurance, and added
‘‘that he had already had about six months of reviewing a
plan that would be convenient for us employees’’ but could
not now give to them because of the Union. Continuing,
Grimm said he would continue to seek a good health insur-
ance plan for the workers, but ‘‘that he believed we didn’t
need a strange person to represent us. . . . He said that he
needed to wait, but that the union had not given him enough
time to put in the plan.’’ During cross-examination, asked by
me if Grimm had said both that Respondent had been plan-
ning to give health insurance to the employees but could not
because of the Union and that Respondent wanted a good
health insurance plan for the employees and they did not
need a union to get it, DeBedolla adamantly said Grimm said
both things—‘‘Rosa had told [Grimm] that we wanted insur-
ance. And that’s why he had the meeting. He said that they
had been planning to give us insurance as of six months
prior, but he didn’t think that we needed it so quickly until
Rosa spoke to him the day before. But since we had sent the
cards signed by various people to the union, with the under-
standing that if that hadn’t occurred he wouldn’t have given
it to us. . . . He was referring to that if we hadn’t . . . gone
into the union . . . he could give us the insurance . . . he
couldn’t do it unless they withdrew.’’
Employee Francisco Villalobos testified that he was
present, in August or September, when Grimm spoke to a
small group of 10 employees. According to the witness,
Grimm requested questions from employees, ‘‘but the one I
remember most importantly was about the health insur-
ance. . . . He said he was planning to give us medical insur-
ance but at that time he couldn’t do it because the persons
form the union were there. And he had to wait to see what
would happen with these people, if it was going to happen
or not.’’
With regard to what he said at the meetings on the subject
of health insurance, during direct examination, Rod Grimm
said his general response, as he had not as yet heard from
his attorneys, was ‘‘that we had been looking into it for
some time but at this time we were uncertain whether or not
we could or would implement a health insurance plan.’’
Grimm specifically denied saying there was no health insur-
ance because of the Union. During cross-examination,
Grimm stated that his response to the employees as to health
insurance was that it posed ‘‘a dilemma’’ as ‘‘on one hand
we were obligated to . . . conduct business as if the petition
did not exist . . . and on the other hand, it could be inter-
preted [as] doing something to influence the outcome of the
election.’’ He added that, while he may not have been al-
ways as detailed, ‘‘I tried to say that we were uncertain at
this time what we could do because . . . it involved consid-
erable research and we . . . had been working to implement
a plan, but I could not say . . . whether or not we would
be putting a plan into effect.’’ Further, while Grimm denied
linking his statement to union considerations, Respondent
failed to call, as a witness, the interpreter, Rosa Rivera to
corroborate Grimm. Finally, the record establishes that Re-
spondent did, in fact, implement health insurance for its vot-
ing unit employees in November 1991.
Paragraphs 9(b) and (c) relate to statements allegedly
made by a labor relations consultant hired by Respondent,
Judy Castillo, in September and December 1991. The record
establishes that Castillo and two other Spanish-speaking
labor relations consultants, Ed Colon and Patrick Lopez,
were retained by Respondent to work during the entire union
campaign at Respondent’s facilities and actually were present
at the Arvin and Lamont plants from mid-September through
mid-December 1991 and during the 3-week period preceding
the May 8, 1992 election. According to Castillo, she and
Colon worked at the Arvin plant, and Lopez was assigned
to the Lamont plant. As to the number of employee meet-
ings, which she conducted, Castillo stated that she saw each
employee approximately four or five times and that she saw
the employees individually, sometimes in small groups of no
more than 10, and in large groups of up to 55 employees.
Employee Calixto Orellana testified that he attended a Sep-
tember employee meeting, conducted by a woman whose
name he can not recall, in the line 3 cafeteria. Approximately
45 employees, including Francisco Villalobos, were present,
and the meeting began with the woman showing a video,
concerning drug trafficking and the Union, to the assembled
employees and saying that the Union’s leaders were drug
traffickers and used employees’ dues to finance their oper-
ations. At this point, according to Orellana, he spoke up, say-
ing drug moneys had supported the contras in Nicaragua. Ac-
cording to Orellana, later in the meeting the woman stated
that ‘‘it was possible that if we accepted the union we would
lose benefits in the Company. . . . I asked her what benefits
were we going to lose. We don’t have any. . . . She an-
swered and said the benefit we could lose was our job.’’19
Corroborating Orellana, Francisco Villalobos testified that he
attended a meeting, at which 40 or 50 employees were
present, at the plant, approximately 1 month after the afore-
mentioned Rod Grimm meeting. ‘‘Miss Judy’’ conducted the
meeting and said ‘‘she was going to talk to us about the
unions. . . . She started saying that we should have patience
with the boss and wait and not sign any cards. . . . Miss
Judy said that if we . . . made a commitment with the union
that we could lose our benefits at the company. And then [a]
co-worker said what benefits could [we] lose if we didn’t
have any. And [Castillo] answered that the benefit we could
lose was the benefit of our job.’’ According to Villalobos,
Castillo continued, saying ‘‘that the boss would remedy the
85GRIMMWAY FARMS
20 At the time, according to Villalobos, he worked a significant
amount of overtime—up to 3 hours of overtime a day and 6 days
a week.
21 The witness testified that, at the time of Castillo’s remarks, Re-
spondent operated two shifts at the Arvin plant, and employees
worked 9 hours a day and on Saturdays.
problems that were there. . . . She said the union . . .
would bring many people into the company and give only
eight hours of work to the workers.’’20
Sandra Teran, who worked as a sorter at the Arvin plant
until leaving as a result of illness in January 1992, testified
that, in September, she attended a meeting, attended by ap-
proximately 25 employees, in the line 3 cafeteria. Judy
Castillo conducted the meeting and spoke about the Union,
calling the leaders ‘‘liars, finks, and other things. Also, that
it wouldn’t be convenient for the owner [if] the union came
in there. And that as the union came in, they were going to
reduce our hours and that Saturdays and Sundays would not
be work. . . . She also said that . . . if we voted for the
union . . . the company would go on strike. And the three
days we would be on strike we could be replaced perma-
nently. That they could only call us back if they wanted to.’’
During cross-examination, when confronted with her pretrial
affidavit, in which she mentioned nothing about Castillo, at
this meeting, saying anything about losing benefits, jobs, or
hours, Teran insisted that her trial testimony was correct and
that ‘‘[Castillo] said that hours were going to be reduced.
And that we could lose our jobs if the union won . . . be-
cause the boss wasn’t going to want strangers to come into
the Company.’’ However, having just declared the accuracy
of her testimony, Teran then somehow reversed herself and
affirmed the truth of her affidavit version of the employee
meeting.
Maria DeBedolla testified with regard to a Judy Castillo
meeting, at which she was present, one afternoon in Decem-
ber at the Arvin plant. Approximately 25 employees were in
attendance, and Castillo conducted the meeting along with
Ed Colon. According to DeBedolla, Castillo said that ‘‘if the
people voted . . . for the union it was going to be declaring
ourselves on strike . . . that if we voted for the union . . .
the company was planning on making changes . . . that we
were going to get less hours. That they were going to make
three shifts instead of two. Eight hours each shift. That if the
union won we would go on strike. That if in seventy-two
hours we didn’t show up at work they were going to replace
us. . . . [T]hat they were going to take away overtime . . .
on Saturday.’’21
Marcella Lopez Ruiz testified as to an employee meeting,
conducted by Castillo, which she attended one morning in
September 1991. Approximately 35 to 45 employees were
present, and Castillo, speaking in Spanish, said she was rep-
resenting Respondent and ‘‘then she [said] . . . that the
union only wanted our money, that every time a union came
into a company, the company would go bankrupt, and the
worst thing was that they would put us on strike. That a
strike for many of us would mean leaving work. . . . [T]hat
we wouldn’t have a right to get unemployment . . . because
it was something we were doing from our own free will.’’
Castillo added that, if anyone was ‘‘working out’’ amnesty,
a strike would count against his record. Asked if Judy said
anything about their work hours, Ruiz recalled, ‘‘she said
that if the union came in, we might work less hours, that
with the union we might have a higher salary and the com-
pany could not continue to give 10 to 10-1/2 hours with a
higher salary.’’ Finally, Victoria Ramirez testified that she
attended an employee meeting, conducted by Judy Castillo,
one morning in December. The meeting occurred in the line
3 cafeteria, and between 20 and 30 employees were present.
According to Ramirez, Castillo began by asking the assem-
bled employees to wear their company T-shirts on the day
of the election and then said ‘‘that if the union won the elec-
tion more people would be brought in. It would add another
shift and reduce our hours because what the union wants is
its dues.’’ She turned to the subject of overtime and said
‘‘that if the union won it would reduce our hours, no more
overtime, less than eight hours and that was inconvenient for
us.’’ During redirect examination, Ramirez recalled that
Castillo also said that, if the Union won the election, ‘‘it
would close down, the company would close down.’’ Not-
withstanding her testimony in this regard, Ramirez did not
mention the latter alleged Castillo statement in her pretrial
affidavit.
Judy Castillo testified that the consultants’ main tool was
the Board’s published ‘‘basic guide’’ to employee rights
under the Act, that the consultants also used Department of
Labor LM-2 reports, union constitutions, video tapes, and
newspaper articles, that copies of the ‘‘basic guide were dis-
tributed to employees, and that a total of five videos were
shown to the employees. She added that ‘‘the large meetings
. . . were always structured. For the informal meetings with
groups of 10 . . . it was basically what they wanted to talk
about.’’ While denying that she ever threatened employees
with reduced hours or overtime if they voted in the Union,
Castillo stated that those subjects were discussed. ‘‘Basically
we were talking about contract negotiations. We told them
that anything is possible in contract negotiations. You never
know which way its going to go. The union being a business,
it’s to their interest to have more employees. They may ask
to limit the employees’ work to eight hours a day.’’ Also,
she would explain to the employees that having more em-
ployees was to the Union’s benefit as it would want to col-
lect more dues. Further, Castillo denied threatening employ-
ees with loss of jobs if they voted in the Union or that, after
a strike, Respondent would retaliate by delaying the recall of
strikers, but she admittedly did discuss strikes, telling the
employees ‘‘that there would be a possibility that there
would be a strike. And . . . I would read . . . from the
guide . . . exactly what it says about strikes.’’ Elaborating,
Castillo testified, ‘‘we told [the employees] that they could
be permanently replaced and that if they wanted to return
from a strike, they’d have to . . . come in unconditionally.’’
Further, Castillo denied telling employees that Respondent
would go bankrupt or would close down if they selected the
Union as their bargaining representative or that they could
lose any benefits if the Union was voted in. In the latter re-
gard, according to Castillo, she did explain the bargaining
process—‘‘it’s a give and take. You don’t know if you’re
going to win in that process, if you’re going to lose . . . or
if you’re going to remain the same.’’ During cross-examina-
tion, Castillo said that, after she read the strike passages from
the Board’s ‘‘basic guide,’’ employees would ask questions
to which she would respond—‘‘we had to differentiate be-
tween the two different kinds of strikes. Theirs would be an
economic strike.’’ Finally when asked if she had ever heard
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Specifically excluded from the voting unit by the Acting Re-
gional Director were seasonal employees. Scrutiny of the representa-
tion hearing record discloses that, apparently, the only seasonal em-
ployees, who are employed by Respondent, comprise the approxi-
mately 250 night-shift employees at the Lamont plant. Respondent’s
general counsel, Jeffrey Green, testified that, each year, the employ-
ees, who work on the night shift at the Lamont plant, are hired in
or about November and work until the following July or August.
Socorro Montes testified that approximately 15 to 20 employees on
her shift are regular, full-time employees and that all employees,
who work at night at the Lamont facility, including the shipping em-
ployees, who are regular, full-time employees, share the same facili-
ties and take lunches and breaks together.
of a union ever asking an employer to contractually limit em-
ployees to 8 hours of work, Castillo averred that her cousin
had mentioned a union doing so ‘‘many, many years ago.’’
Ricardo Torres Guillero, who was called as a witness by Re-
spondent, testified with regard to attending at least one of the
Castillo meetings and, while stating that she did read from
documents and distributed others, denied ever having seen a
copy of the Board’s ‘‘basic guide.’’ Further, asked what
Castillo said would happen if employees engaged in a strike,
Guillero responded that Judy said, ‘‘if there was a strike,
they would join the strike, that . . . [possibly] . . . they
could lose their job.’’ Asked how Castillo phrased this, the
employee replied, ‘‘If you went on strike, a company could
replace you’’; he could recall no further explanation and an-
swered ‘‘no’’ when asked if she mentioned the need to make
an unconditional offer to return.
Paragraph 9(g) concerns the allegedly unlawful acts and
conduct of Soccoro Montes, who, the record establishes, is
a supervisor of the night-shift employees at the Lamont plant
and who, Respondent admitted, is a supervisor within the
meaning of Section 2(11) of the Act. The work of the night-
shift employees involves the grading and packing of carrots
in cellophane bags and cartons.22 Three former Lamont
night-shift employees, two of whom quit their employment
shortly after the May 8, 1992 election and one who was ter-
minated 3 days after the election, testified with regard to
Montes’ allegedly unlawful acts. Fidel Garcia, who worked
as a sorter before quitting his job, testified that, 1 night at
approximately the end of March 1992, ‘‘I was working,
[Montes] came to where I was working. . . . She . . . spoke
about that if I wasn’t happy with the company. . . . She
spoke to me about the union, what was it I was seeking with
the union. I said that all of this was because of the injustices
they were doing to the workers.’’ Montes replied that the
employees really wouldn’t gain anything with a union and
stated that, even if the Union triumphed in the election, the
supervisors would continue to do what they believed was
necessary. Thereupon, Garcia began complaining about the
competency of the supervisors. Montes replied that Respond-
ent had a school for lower level supervisors and asked how
Garcia knew so much about human relations. Garcia replied
that he had taken courses on the subject. Then, Montes men-
tioned that a foreman, named Sylvester, wasn’t doing his job
right and asked if Garcia wanted the job, saying ‘‘that if I
would stop my support for the union . . . she would be able
to help me.’’ Garcia refused her offer, telling Montes that he
would never accept a job offer to take the place of someone
else. During cross-examination, asked why Montes would
have such a conversation with him, Garcia stated that he had
been distributing union leaflets during his break periods and
wore a union button. Montes testified that she knew Garcia
as being from Guatemala and ‘‘as a worker on the line’’ and
admitted having a conversation with him regarding a super-
visory position while Garcia was ‘‘on the line at work time.’’
According to Montes, ‘‘we were talking of his native country
and mine and of the work. He commented that at one time
he was a supervisor. . . . I told him in the past I needed a
supervisor.’’ Then, she mentioned he seemed to be an intel-
ligent person and would have fit in well in a supervisory po-
sition. Montes denied mentioning the Union during their con-
versation.
Mario Guttieruz, who was fired by Respondent 3 days
after the election, testified that he performed many jobs at
the Lamont plant, including sorting and weighing bags and
boxes and that, in March 1992, he was instructed to report
to Montes’ office. Guttieruz arrived at the office, closed the
door, and observed that another women, whose name he did
not know, was with Montes. Guttieruz recalled that it was a
short ‘‘interview’’ and that Montes only asked ‘‘for what we
wanted a union’’ and ‘‘what is the union going to bring
you.’’ According to the witness, he replied that ‘‘we were
looking for someone who could represent us to avoid all the
injustices that were occurring.’’ Both women laughed at this,
and Montes told Guttieruz to return to work. Guttieruz testi-
fied that, prior to the conversation, he would distribute union
leaflets to coworkers during break periods and lunches and
always wore a union button. While admitting knowing
Guttieruz as ‘‘another worker,’’ Montes denied speaking to
him about the Union prior to the election.
Salvador Pantoja, who worked at the Lamont plant as a
carrot sorter and packer until he quit and was supervised by
Montes, testified that, 1 night in February or March 1992, he
was asked to report to Montes’ office. He arrived, and she
told him to close the door. Admitting that he had just spent
5 minutes in the bathroom, Montes began by asking why he
took so long, and Pantoja replied that it wasn’t too long.
Then, ‘‘she asked me what we were gaining in being with
the union. I answered . . . that it was fight between all of
us that were working . . . that wanted better treatment, bet-
ter salaries. And not to treat their people so badly.’’ Montes
replied that, prior to the Union, everyone was happy and
that, now, everyone was unhappy and no longer united.
Pantoja asked if (he) had been paged to speak about the
Union or about something else, and Montes replied that she
could have him come to her office whenever she wanted.
Then, she asked if he had put on his employment application
that he was a ‘‘dependent’’ of the Union. Pantoja denied it,
saying he had only distributed literature for the Union be-
cause of Respondent’s behavior. Montes then asked why he
had failed to mention his membership in the Union, and
Pantoja said the employment application was silent as to that.
Then, Montes asked ‘‘what are you seeking with the union
that you can’t find with the company,’’ but Pantoja did not
reply. Three weeks later, Pantoja testified, he was again
paged to report to Montes’ office. No one else was present
when he arrived, and Montes began by saying he was a nice
guy and a good friend to her and then asked ‘‘why is it that
whenever the union enters the company closes down.’’
Pantoja replied that companies never close; they merely
change names in order to avoid the Union. Montes replied
that companies file for bankruptcy when unions come in and
87GRIMMWAY FARMS
23 Pantoja averred that he and Montes spoke as friends.
24 According to Teran, Juarez was her supervisor on the green
bean line and that, sometimes, Juarez assigned her work and as-
signed overtime. Contrary to Teran, Supervisor Corina Sierra de-
scribed Juarez as a ‘‘regular worker’’ with no supervisory authority.
The parties stipulated that her name appears on the election eligi-
bility list.
said she really had a question—what would happen to her
and the other supervisors if the Union won the election.
Pantoja said all would remain working, but Montes asked if
things would ever be the same, and Pantoja said, no. Pantoja
recounted a third conversation with Montes in her office 2
weeks before the election. With no one else present and the
door closed, Montes began, asking ‘‘What were we looking
for, what was it that we wanted with the union that I was
bothering the people about. . . . I answered to her that the
people are working for necessities.’’ Montes asked what he
thought the Union could do, and Pantoja said he was fighting
for his rights.23 During cross-examination, Pantoja admitted
that, in his pretrial affidavit, he had only mentioned two con-
versations with Montes prior to the election—one occurring
2 weeks before the election and the other 1 week later.
Asked by me whether his testimony or his affidavit was cor-
rect, Pantoja claimed both versions of the events were accu-
rate. Montes testified that, a month or two prior to the elec-
tion, she spoke to Pantoja about visits to the bathroom—‘‘I
called him to come into the office because he was 15 min-
utes in the bathroom.’’ Pantoja replied ‘‘that if he had to stay
15 minutes in the bathroom, he would stay 15 minutes.’’ She
denied any mention of the Union during this conversation or
at any time prior to the election with Pantoja.
Finally, although not alleged as an unfair labor practice in
the third consolidated amended complaint, former employee,
Sandra Teran, who worked at the Arvin plant, testified that,
having left Respondent in January 1992 due to illness, she
had a conversation with a ‘‘female foreman,’’ named Arelia
Juarez,24 in May or June 1992 in the line 3 cafeteria. Ac-
cording to Teran, ‘‘I told her that I had just turned in an ap-
plication. I told her that I wanted to go back. . . . And she
said that maybe they would not give me my job back. And
I said why? And she said because I had been with the
union.’’
B. Legal Analysis
Initially, I consider Respondent’s allegedly unlawful refus-
als to rehire Sergio Martinez, Luis Villa, Trinidad Duran,
Pedro Zarco, Cayetano Suarez, Jorge Gonzalez, Herminio
Romero, and Paulino Rojas. In this regard, counsel for the
General Counsel contends that, on the Memorial Day holiday
in May 1990, the above eight individuals, along with the
other employees on the sanitation crew at the Arvin plant,
engaged in a concerted work stoppage in order to protest Re-
spondent’s refusal to agree to pay each of them time and
one-half or double time for working that day; that Respond-
ent terminated and, thereafter, placed each individual on no
rehire status based on the fact that he had engaged in the
work stoppage; that at times Respondent was hiring employ-
ees over the last 6 months of 1991, each of the eight former
employees reapplied for a job with Respondent; that the per-
sonnel clerks informed each he was not eligible for rehire
based his participation in the 1990 Memorial Day strike; and
that, accordingly, by refusing to rehire the alleged
discriminatees, Respondent ‘‘manifested a contemporary link-
age between their prior protected activity and the current
refusal[s] to hire,’’ thereby, engaging in conduct violative of
Section 8(a)(1) of the Act. Conceding the above-described
factual background except for what the personnel clerks said
to the alleged discriminatees as they applied for rehire, coun-
sel for Respondent argues that, as the alleged Memorial Day
1990 concerted work stoppage occurred 13 months before
any alleged discriminatee was denied rehire, ‘‘the entire case
of General Counsel . . . is based on the events of . . . the
alleged discriminatees entirely outside the Section 10(b) [of
the Act 6-month statute of limitations] period’’; that, relying
on the Supreme Court’s decision in Machinists Local 1424
(Bryan Mfg. Co.) v. NLRB, 362 U.S. 411 (1960), ‘‘the Su-
preme Court and the Board will not find a violation within
the Section 10(b) period if the graveman of the violation, or
the evidence of motive, occurred outside the Section 10(b)
period’’; and that to find, as requested by counsel for the
General Counsel, will violate the statutory purpose behind
Section 10(b), which is ‘‘intended to preclude the rehashing
of such evidence and circumstances where the evidence of
conduct within the Section 10(b) period was not in and of
itself evidence [of] a violation of the Act.’’ In addition, cit-
ing the Board’s decisions in Postal Service Marina Center,
271 NLRB 397 (1984), and Carter-Glogau Laboratories, 280
NLRB 447 (1986), counsel asserts that the significant event
herein was Respondent’s termination of the alleged
discriminatees for having engaged in the work stoppage, that
the Act’s statute-of-limitations time period began on that date
in 1990, and that the alleged discriminatees were required to
have filed unfair labor practice charges within 6 months of
the date of their terminations rather than waiting ‘‘until the
consequences of the act [became] most painful’’—the time
each reapplied for a job. Contrary to counsel for Respondent,
counsel for the General Counsel argues that the alleged un-
fair labor practices are separate and distinct unlawful acts
within the 10(b) period and that the evidence of conduct, be-
yond the 6-month statute of limitations may be considered as
background evidence to establish motivation.
Inasmuch as the testimony of the alleged discriminatees
was uncontroverted, I shall credit their accounts of the events
of the Memorial Day holiday in 1990; although also
uncontroverted, as the testimony of alleged discriminatees,
Zarco and Martinez, concerning ‘‘Marta’s’’ asserted com-
ment that the group had been discharged for engaging in a
strike, was contradicted by the others, I can not, and do not,
rely on said assertion. Further, the fact that, during the last
6 months of 1991, each of the alleged discriminatees went
to Respondent’s office and sought reemployment was like-
wise uncontroverted by Respondent; however, what was said
by the female personnel clerks to the alleged discriminatees
as they submitted their new employment applications is in
dispute. In this regard, notwithstanding that Respondent then
employed two personnel clerks, Maricella Castillo and Eva
Jimenez, only one alleged discriminatee Suarez stated that he
spoke to Castillo, and no less than six insisted that they
spoke to the personnel clerk, named ‘‘Marta,’’ variously and
contradictorily described as being short, thin, and wearing
glasses, ‘‘not too big or too short’’ and blond haired, thin
with black hair, and slightly overweight, and that this female
clerk was not Maricella Castillo. Moreover, Luis Villa identi-
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 It is alleged that Maricella Castillo acted as Respondent’s agent
within the meaning of Sec. 2(13) of the Act. The record discloses
that personnel clerks Castillo and Eva Jimenez were the only rep-
resentatives of Respondent who met and spoke to employees during
the hiring process; that each distributed and received employment
applications, answered any questions with regard to the documents
or the applicants’ hiring status or opportunities; that the personnel
clerks offered positions to new hires, explaining the job and wage
rate; and that Castillo and Jimenez would give IRS forms to the em-
ployees and take I.D. pictures. Inasmuch as Respondent placed
Castillo and Jimenez in positions in which each had the apparent au-
thority to provide information and to answer questions relative to the
hiring process, I find that each acted as Respondent’s agent within
the meaning of Sec. 2(13) of the Act. Diehl Equipment Co., 297
NLRB 504 at fn. 2 (1989).
26 Notwithstanding that he was not specifically advised that he
would not be rehired or given any reason as to why no action appar-
ently was taken on his employment application, I include Paulino
Rojas in the class of alleged discriminatees. Thus, not only did he
apply for a job within the 10(b) period, but also the identical ineli-
gible for rehire rationale appears in his personnel file. Contrary to
counsel for the General Counsel, while unnamed individuals, who
are similarly situated to alleged discriminatees may properly be in-
cluded in a ‘‘class,’’ the class herein consists of those employees,
who participated in the Memorial Day protected concerted work
stoppage and who applied for jobs within the 10(b) period, and not
merely those who participated in the work stoppage. There is no
record evidence that any employee, who participated in the work
stoppage, other than the alleged discriminatees applied for rehire
during the 10(b) period, and the ‘‘class’’ may not be expanded be-
yond the eight employees, who are named in the third consolidated
amended complaint.
27 Blue Circle Cement Co., 311 NLRB 623 (1993).
fied a photograph of Eva Jimenez as Marta and testified that
she was the personnel clerk with whom he spoke; however
Jimenez denied being known by that name, and the record
establishes that she was performing different work for Re-
spondent as of October 18, the day, according to Sergio Mar-
tinez, he and Villa assertedly spoke to ‘‘Marta.’’ Given the
foregoing, one may reasonably doubt the existence of the
mysterious Marta and, as Castillo admitted possibly speaking
to several of the alleged discriminatees when they reapplied
for jobs, I believe that she was the individual to whom most
of the alleged discriminatees must have spoken and so find.
Turning to what was said, while two of the alleged
discriminatees, Villa and Gonzalez, testified, during direct
examination, that Marta mentioned the employees’ ‘‘strike’’
as the reason he was not eligible for rehire, each subse-
quently changed his testimony. Thus, during rebuttable testi-
mony, Villa denied the personnel clerk used the word strike,
stating her words were ‘‘for the problems that had hap-
pened.’’ Also, during his cross-examination, Gonzalez con-
tradicted his prior testimony, saying what said was that he
wouldn’t be rehired because he had ‘‘abandoned’’ work.
Given their internally contradictory testimony, I can not cred-
it either Villa or Gonzalez as to his above-described direct
examination assertion or Villa’s rebuttal admission—notwith-
standing its similarity to the recollection of other alleged
discriminatees. Alleged discriminatee Suarez attributed a
similar statement to Maricella—‘‘We can’t take you because
you’re one of the ones who did a strike.’’ However, Castillo
specifically denied ever telling any applicant that he was in-
eligible for rehire because he had engaged in a strike, and
there is no credible evidence that such an explanation, for re-
fusing to rehire, was offered to any of the other alleged
discriminatees. Further, as Maricella’s practice, before ex-
plaining to an applicant why he would not be rehired, was
to examine the individual’s personnel file and as the no re-
hire explanation, which appeared in Suarez’ personnel file
was identical to that which appeared in the files of all the
alleged discriminatees, ‘‘employee walked out of the job,’’ I
believe that it is likely that Castillo utilized or paraphrased
that language and unlikely that she would have uttered the
comment, attributed to her by Suarez, and so find. Four of
the alleged discriminatees (Duran, Martinez, Zarco, and Ro-
mero) vaguely recalled that the personnel clerk said each was
ineligible for rehire based on ‘‘what had happened the year
before,’’ or because of ‘‘problems’’ they previously had.
Given their contradictory descriptions of the mysterious
‘‘Marta’’ and the questionable existence of such a person and
reiterating that it is most likely that Castillo would have re-
peated what was written in the personnel files as the reason
for the no rehire status, I place no reliance on the recollec-
tions of the alleged discriminatees and credit the admission
of Castillo that she informed each alleged discriminatee, who
inquired, that he would not be rehired because he had
‘‘walked out the year before.’’
Based on the foregoing, I find that, on the 1990 Memorial
Day holiday, the Arvin plant sanitation and maintenance de-
partment employees, including the alleged discriminatees,
met and together decided to demand that Respondent com-
pensate them at a time and a half or double time wage rate
for working on a holiday and informed their supervisor that,
unless Respondent acquiesced to their demand, they would
cease work for the remainder of the day and that, as Re-
spondent refused to comply, the aforementioned employees,
as a group, subsequently did, in fact, leave work early and
engage in a work stoppage for the remainder of the day. Fur-
ther, I find that not only did Respondent terminate each indi-
vidual, who participated in the work stoppage, but also clas-
sified each as being ineligible for rehire as having ‘‘walked
out of the job.’’ Finally, I find that, during the last 6 months
of 1991, at times when Respondent was hiring, each of the
alleged discriminatees applied for reemployment and was de-
nied such by Maricella Castillo, the personnel clerk,25 who,
on checking the no rehire rationale for each, repeated that in-
formation to the alleged discriminatees—they were ineligible
for rehire because ‘‘they had walked out’’ the previous year,
a refusal to rehire explanation commonly utilized by Re-
spondent. While paragraph 7(b) of the third consolidated
amended complaint alleges that said comment by Castillo
was violative of Section 8(a)(1) of the Act, I believe that she
merely repeated what was written in the personnel file of
each alleged discriminatee to whom she spoke and that her
language was far too vague to have any sort of coercive con-
notation. In these circumstances, I shall recommend dismissal
of the above allegation.
In considering whether Respondent’s refusal to rehire the
alleged discriminatees26 was violative of Section 8(a)(1) of
the Act, it is necessary to utilize the analytical framework set
forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), approved in NLRB v. Transportation
Management Corp., 453 U.S. 989 (1983),27 which the Board
has applied in cases involving refusals to hire. Fluor Daniel,
Inc., 311 NLRB 498 (1983). Accordingly, the initial inquiry
must be whether the General Counsel has made a prima facie
89GRIMMWAY FARMS
showing sufficient to support an inference that the alleged
discriminatees’ protected concerted activities were a ‘‘moti-
vating factor’’ in Respondent’s refusal to offer rehire to any
of them. In this regard, the General Counsel must establish
that the alleged discriminatees engaged in protected con-
certed activities; that the employer had knowledge of such;
and that the employer’s acts were motivated by animus in-
volving the conduct of the alleged discriminatees. Blue Cir-
cle Cement, supra. Herein, of course, all the evidence, nec-
essary to support each aspect of the General Counsel’s req-
uisite prima facie showing, is enmeshed in the events of Me-
morial Day 1990, which occurred approximately 11 months
prior to the commencement of the 10(b) statute of limitations
period. Put another way, while the refusals to rehire occurred
within the 6-month period preceding the filing of the unfair
labor practice charge in Case 31–CA–19115, there is no evi-
dence, beyond the ambiguous statement made to seven of the
eight alleged discriminatees by Maricella Castillo, within the
10(b) period, on which to support a showing that the alleged
discriminatees’ protected concerted activities were a moti-
vating factor in denying them reemployment. In these cir-
cumstances, as both counsel for the General Counsel and
counsel for Respondent recognize, the existence of a prima
facie violation of Section 8(a)(1) of the Act is dependent on
whether one may consider evidence, regarding the alleged
discriminatees’ acts on the 1990 Memorial Day holiday and
Respondent’s reaction to said conduct, as bearing on and ex-
plaining the refusals to hire and Maricella Castillo’s state-
ments to the alleged discriminatees within the 10(b) period,
and the Supreme Court’s reasoning in Bryan Mfg. Co., supra,
is crucial in this regard.
In Bryan Mfg. Co., 362 U.S. at 416–417, in ruling on the
use of evidence relating to events ‘‘transpiring’’ beyond the
10(b) statute of limitations period, the Supreme Court distin-
guished between two different situations:
The first is one where occurrences within the six-month
limitations period in and of themselves may constitute,
as a substantive matter, unfair labor practices. There,
earlier events may be utilized to shed light on the true
character of matters occurring within the limitations pe-
riod; and for that purpose Section 10(b) ordinarily does
not bar such evidentiary use of anterior events. The sec-
ond situation is that where conduct occurring within the
limitations period can be charged to be an unfair labor
practice only through reliance on an earlier unfair labor
practice. There the use of the earlier unfair labor prac-
tice is not merely ‘‘evidentiary,’’ since it does not sim-
ply lay bare a putative current unfair labor practice.
Rather, it serves to cloak with illegality that which was
otherwise lawful. And where a complaint based upon
that earlier event is time-barred, to permit the event
itself to be so used in effect results in reviving a legally
defunct unfair labor practice.
Herein, inasmuch as the conduct of the alleged
discriminatees themselves in engaging in a work stoppage on
the 1990 Memorial Day holiday, and not Respondent’s dis-
charge of each participant, is the primary focus, it is clear
that we are confronted with the first of the 10(b) evidentiary
situations, and counsel for the General Counsel contends that
evidence of the 1990 work stoppage may be utilized as
‘‘background’’ to shed light on the true nature of Respond-
ent’s conduct within the 10(b) period. However, in Bryan
Mfg. Co., in considering the extent to which one may rely
on pre-10(b) evidence to shed light on subsequent events, the
Supreme Court, noted the existence of several Board deci-
sions, which limited the use of such background evidence.
Thus, the Court pointed to News Printing Co., 116 NLRB
210 (1956), in which the complaint alleged that the respond-
ent violated Section 8(a)(1) and (3) of the Act by failing to
grant wage increases to certain employees and, after finding
that the General Counsel had offered no evidence within the
10(b) period establishing any of the required elements of
proof, including that the charging parties engaged in union
or other protected concerted activities or evidence that they
were denied the wage increases because of such activities,
and instead had relied on an earlier Board decision to supply
the ‘‘missing proof,’’ the Board concluded that, while evi-
dence predating the 10(b) period may be used as background,
Section 10(b) ‘‘precludes the Board from giving independent
and controlling weight to such evidence.’’ Id. at 212. While
expressing no view on the ‘‘problem’’ raised by News Print-
ing and similar cases, the Court did state ‘‘that a finding of
violation which is inescapably grounded in events predating
the limitations period is directly at odds with the purposes
of the Section 10(b) proviso.’’ Bryan Mfg. Co., supra at 422
(emphasis added).
Based on the foregoing, I believe that Section 10(b) pre-
cludes use of the evidence of the events of Memorial Day
1990 to find violations of Section 8(a)(1) of the Act with re-
gard to Respondent’s refusals to hire the eight alleged
discriminatees. Thus, in decisions subsequent to Bryan Mfg.
Co., such as Stafford Trucking, 154 NLRB 1309 (1965), the
Board has permitted the utilization of pre-10(b) evidence on
such matters as motive and knowledge of union or protected
concerted activities ‘‘ unless the General Counsel’s case is
inescapably grounded on evidence predating the 10(b) pe-
riod.’’ Pennsylvania Electric Co., 289 NLRB 1200, 1206
(1988); Denzil S. Alkire, 259 NLRB 1323, 1329 at fn. 4
(1982). In other words, if the General Counsel is able to
point to evidence, establishing the necessary elements for the
violation within the 10(b) period, evidence, predating the
statute of limitations period, may be considered to shed light
on the meaning of the former. With regard to the instant al-
legedly unlawful refusals to hire, the only evidence arguably
establishing violations of Section 8(a)(1) of the Act, occur-
ring within the 10(b) period, are the ambiguous statements
attributed to Maricella Castillo. While counsel for the Gen-
eral Counsel characterizes her comments as admissions, they
may only be deemed as such when reference is made to the
events predating the 10(b) period; otherwise, her nebulous
statements, as well as what is written on the inactive em-
ployee sheets, may refer to any number of employee actions.
Contrary to counsel for the General Counsel, I believe the
instant fact situation is remarkably similar to that with which
the Board was confronted in News Printing Co., supra. Thus,
there is no evidence, ‘‘standing alone,’’ within the 10(b) pe-
riod sufficient to establish the necessary elements of prima
facie violations of Section 8(a)(1) of the Act, and one must
entirely rely on pre-10(b) evidence, the events of the 1990
Memorial Day holiday, to establish the ‘‘missing proof’’ of
all the elements of the violation. In these circumstances, as
the General Counsel’s allegations are utterly and ‘‘inescap-
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 While DeBedolla also stated that the supervisor asked if she
supported the Union, such is not alleged as unlawful in the third
consolidated amended complaint and counsel for the General Coun-
sel did not request that I make any finding as to the interrogation.
Therefore, I shall make no finding as to the legality of the question.
ably grounded’’ on evidence, predating the 10(b) period, I
shall recommend dismissal of paragraph 7(c) of the third
consolidated amended complaint.
Next, with regard to the unlawful union solicitation rule
allegations of paragraph 6 of the third consolidated amended
complaint, credibility considerations are of paramount impor-
tance. Initially, as to the incident involving employee Maria
DeBedolla and Corina Sierra, the former, who is a current
employee of Respondent, appeared to be a more honest and
trustworthy witness, and, therefore, I shall credit her over Si-
erra. Accordingly, I find that, in or about August 1991, Si-
erra pulled DeBedolla away from her sorting line and warned
her that, during ‘‘working hours’’ in the plant, she could not
talk about the Union with her coworkers.28 The Board has
long held that such a union solicitation policy encompasses
‘‘periods from the beginning to the end of workshifts, peri-
ods that include the employees’ own time,’’ such as meal
times and break periods, as well as times ‘‘when the employ-
ees have completed their shifts but are nevertheless still law-
fully and properly on company premises pursuant to the
work relationship,’’ and, therefore, is presumptively invalid.
Norris/O’Bannon, 307 NLRB 1236 at 1245 (1992); Keco In-
dustries, 306 NLRB 15 at 19 (1992); Our Way, Inc., 268
NLRB 394, 394–395 (1983). Respondent presented no evi-
dence of any management interest, justifying the existence of
such a stringent restriction on employees’ union activities,
and I find the rule, as announced by Sierra, was violative of
Section 8(a)(1) of the Act. Norris/O’Bannon, supra.
As to allegedly unlawful warning notice incident involving
employee Marcella Lopez Ruiz, Ruiz, who remains em-
ployed by Respondent, impressed me with her candor and
truthful manner while testifying. In contrast, Eddie Rosson,
the Arvin plant production manager, appeared to be a most
disingenuous witness, one utterly devoid of trustworthiness.
The mendacity of his testimony is apparent from the con-
tradictions between his version of events and that of a sup-
posedly corroborative witness, Foreman Elano Cuevas. Thus,
while the former asserted that General Counsel’s Exhibit 4,
the written warning, was not a written warning but rather
some sort of record of a counseling session and denied in-
structing Cuevas to issue a written warning, Cuevas readily
admitted the document was a warning notice and that Rosson
directed him to issue a written warning, and, while Rosson
disavowed any part in the drafting of the document, Cuevas
stated that Rosson was present during, and participated in,
the drafting of the warning notice. Further demonstrating the
incredible nature of Rosson’s assertion that the warning no-
tice was not, in fact, a warning notice is the fact that the ex-
hibit was produced by Respondent pursuant to a subpoena re-
quest for written reprimands. I place no credence in any as-
pect of Rosson’s testimony herein. Moreover, as between
Ruiz and Cuevas, the former appeared to be a more reliable
witness and, therefore, her testimony shall be credited over
that of her supervisor. Accordingly, I find that, on November
27, 1991, Ruiz was called into the supervisors’ office by
Cuevas, who, echoing fellow Supervisor Sierra, told Ruiz
that she had been observed speaking to another women on
the sorting line about the Union and that ‘‘here it’s prohib-
ited to speak about the union during work hours.’’ Cuevas
announced that the above would constitute an oral warning;
Eddie Rosson then entered the office and, after Cuevas in-
formed him about him what had occurred, instructed the
foreman to make the reprimand a written warning. There-
upon, Rosson turned to Ruiz and said that she could not
speak to other employees about the Union during work hours
or during break periods ‘‘because it was during the time that
the company was paying. Only during lunch or after I get
off.’’ Finally, after Rosson finished, the written warning no-
tice, General Counsel’s Exhibit 4, which states, in part, that
Ruiz had been warned about ‘‘get[ting] more signatures
against the Company in regular work time, not on lunch
time,’’ was given to her.
Clearly, as was the conduct of Supervisor Sierra above,
Cuevas’ promulgation of a union solicitation policy, which
emphasized that employees were prohibited from engaging in
union activities at the plant during ‘‘working hours,’’ is
overbroad, with said term connoting a period from the begin-
ning to the end of the workshift, a period including the em-
ployees’ own time, such as breaks or lunches, and presump-
tively invalid and, as no justification for such a policy was
offered, violative of Section 8(a)(1) of the Act.
Norris/O’Bannon, supra; Our Way, supra. Furthermore, when
Production Manager Rosson informed Ruiz that she could
not speak about the Union with fellow employees during
work time and break periods as ‘‘the company was paying,’’
he likewise enunciated an overly broad union solicitation
policy, one which would prohibit employees from engaging
in union activities on their own time, which is presumptively
invalid and, as Respondent offered no justification, violative
of Section 8(a)(1) of the Act. Filene’s Basement Store, 299
NLRB 183, 210 (1990); Cannon Industries, 291 NLRB 632,
634 (1988). Finally, inasmuch as its wording implies that the
warning against speaking to fellow employees about the
Union ‘‘in regular work time’’ encompassed break periods,
it seems certain that the November 27 disciplinary notice to
employee Ruiz pertained to the facially overly broad no so-
licitation policy, established by Eddie Rosson. Therefore, she
was disciplined for having violated an unlawful union solici-
tation policy, and an employer violates Section 8(a)(1) and
(3) of the Act by disciplining an employee in such cir-
cumstances. Mast Advertising, 304 NLRB 819 (1991); Jen-
nings & Webb, Inc., 288 NLRB 682 (1988).
I turn next to the third consolidated amended complaint al-
legation that Respondent’s refusal to retain employee Manuel
Pelayo in his former position as a forklift driver, on his re-
lease from jail in early December 1991, was violative of Sec-
tion 8(a)(1) and (3) of the Act and note that, as with the al-
legedly unlawful refusal to rehire allegations discussed
above, adherence to the Wright Line, supra, analytical frame-
work is required. Thus, as above, the initial inquiry must
concern whether the General Counsel has made a prima facie
showing sufficient to support the inference that Pelayo’s ac-
tivities in support of the Union were a ‘‘motivating factor’’
for Respondent’s refusal to retain him, and the General
Counsel’s burden, in this regard, was to establish that Pelayo
engaged in activities in support of the Union, that Respond-
ent was aware of his support for the Union and was moti-
vated by animus, based on union considerations, in refusing
91GRIMMWAY FARMS
29 I do not credit Jose Diaz’ assertion that he was unable to locate
Pelayo at the Lamont jail.
to retain Pelayo, and that the refusal to retain Pelayo had the
effect of encouraging or discouraging membership in the
Union. WMUR–TV, 253 NLRB 697, 703 (1980). If the Gen-
eral Counsel is successful, the burden would then shift to Re-
spondent to demonstrate that the same action would have
taken place notwithstanding the protected conduct. Initially,
the credibility of the witnesses is, of course, crucial to deter-
mining if the General Counsel established a prima facie vio-
lation of the Act and, in this regard, Manuel Pelayo im-
pressed me as being an honest and forthright witness, who
appeared to be testifying honestly and to the best of his
recollection. In contrast, the shipping department supervisor,
Mathias Hernandez, did not seem to be testifying in a frank
or straightforward manner, and, as he was contradicted by
Valerie Rew and Michael Skaggs, I believe he dissembled in
denying that he gave Pelayo permission to take a leave of
absence in order to serve a jail sentence. As between Pelayo
and Hernandez, I shall rely on the testimony of Pelayo. Fur-
ther, Miguel Garcia and Fernando Romero, both of whom
testified on behalf of the General Counsel, were impressive
and candid witnesses. On the other hand, Supervisor Jose
Diaz appeared to be testifying in a manner calculated to but-
tress Respondent’s defense and, as between the two employ-
ees and Diaz, I shall credit the far more reliable respective
testimony of Garcia and Romero.
Based on the foregoing credibility resolutions, and the
record as a whole, I find that, during the preelection period
in the fall of 1991, Manuel Pelayo was more vocal than oth-
ers as a proponent of representation by the Union and that
Hernandez, as he admitted, was aware of Pelayo’s prounion
sympathies. Further, I believe that Pelayo, who must have
known that he probably would be required to serve no more
than 18 days of his 27-day jail sentence for driving while in-
toxicated, did, in fact, speak to Hernandez and request an 18-
day leave of absence in order to serve his jail term; that, giv-
ing credence to Skaggs and Rew, both of whom understood
from Hernandez that he had granted Pelayo’s request, Her-
nandez gave permission to Pelayo to take a leave of absence
for the stated purpose; and that, at all times during the next
three weeks, Mathias Hernandez knew Pelayo was an inmate
at the local jail.29 Moreover, there is ample record evidence
to support the conclusion that, as a result of his support for
the Union and fearful of the effect of such on the upcoming
election, Respondent seized on Pelayo’s leave of absence to
replace him with another forklift operator and to refuse to re-
tain Pelayo in his forklift driver position on the conclusion
of his leave of absence and release from jail. Thus, I have
specifically credited the testimony of Miguel Garcia that, in
response to a question regarding Pelayo’s job when he was
released from jail, Jose Diaz said ‘‘that Mathias had told him
. . . they weren’t going to give him work because he was
talking about the union too much’’ and that of Fernando Ro-
mero, who recalled Diaz saying that ‘‘Mathias Hernandez
says he’s not going to come back because he talks about the
union too much.’’ Besides constituting direct evidence of
animus, Diaz’ statements were themselves patently violative
of Section 8(a)(1) of the Act. Moreover, as Hernandez’ stated
reason for replacing and not retaining Pelayo—that Pelayo
had not been granted a leave of absence; that Pelayo had
failed to report for work the following week; that Hernandez
could not locate Pelayo in jail and did not know where he
was; and that, consequently, Hernandez was forced to replace
Pelayo—is untrue, the inference is warranted that Respondent
was concealing the real reason for failing to retain Pelayo on
the conclusion of his leave of absence—his support for the
Union. Fluor Daniel, supra. In these circumstances, there can
be no doubt that the General Counsel has established a prima
facie violation of Section 8(a)(1) and (3) of the Act with re-
gard to Respondent’s failure to return Pelayo to his job on
the completion of his jail sentence.
Besides condemning the credibility of the witnesses, who
testified on behalf of the General Counsel, counsel for Re-
spondent offered two main arguments against the existence
of unlawful animus with regard to Pelayo. The first is the
lack of any other record evidence involving unlawful dis-
crimination against any other employee. However, I have
previously concluded that Respondent engaged in conduct
violative of Section 8(a)(1) and (3) of the Act with regard
to the disciplinary warning notice, given to employee Mar-
cella Lopez Ruiz. Moreover, the fact that Respondent may
have engaged in no other unlawful discriminatory conduct,
during the campaign, is not of itself exculpatory. Put another
way, the fact that Respondent engaged in no other like dis-
crimination does not mean Respondent could not have en-
gaged in such action against Pelayo. The second, and perhaps
main, argument concerns Respondent’s conduct after Pelayo
complained to Valerie Rew. While it is true that Pelayo was
quickly offered employment elsewhere with Respondent and
while such may negate any inference of unlawful animus,
other explanations for her conduct are equally tenable. Thus,
it may be postulated that, recognizing Respondent’s exposure
in the midst of a preelection campaign period, acted to limit
Respondent’s legal liability. It may just as feasibly be as-
serted that Rew was unaware of the true nature of Her-
nandez’ motivation and acted responsibly and in good faith
in giving Pelayo employment elsewhere with Respondent. In
these circumstances, I do not believe it can be said that
Rew’s conduct negates the real evidence of unlawful animus
with regard to Pelayo. Accordingly, as I believe that Re-
spondent’s asserted defense for its conduct was in the nature
of a sham, utilization of the ‘‘burden shifting’’ analysis of
Wright Line is unnecessary, and I find that Respondent’s fail-
ure to retain Manuel Pelayo in his forklift driver position,
after his release from jail, was violative of Section 8(a)(1)
and (3) of the Act.
Turning now to paragraph 9 of the third consolidated
amended complaint, I consider the various instances of inter-
rogations and statements allegedly violative of Section
8(a)(1) of the Act. Initially, as to the August 1991 statements
attributed to a labor relations consultant, apparently identified
as Jose Agraz, I note that the testimony of employees Calixto
Orellana, Francisco Villa Lobos, and Victoria Ramirez was
uncontroverted and, as each appeared to be testifying in a
frank and candid manner, I shall credit their respective testi-
mony. Accordingly, I find that, in a series of meetings at the
Arvin plant, at the approximate start of the Union’s organiz-
ing campaign, Agraz asked the assembled employees to ex-
plain their problems with Respondent and said that he would
then ‘‘relate them to the . . . boss and he would try to re-
solve [them].’’ The Board has long held that, when, during
the course of a union’s organizing campaign, an employer
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 I base this on the facts that, according to Grimm, a supervisor
informed him that employees and that, according to DeBedolla,
Grimm told the employees that Rosa Rivera, the interpreter, had in-
formed him that employees wanted health insurance.
31 In concluding that Grimm’s comments to employees were viola-
tive of the Act, I have considered whether such were cured by Re-
spondent’s implementation of a health insurance plan 2 months later.
In my view, such, in no way, vitiated Respondent’s prior, deliberate
interference with its employees’ Sec. 7 rights. See Passavant Area
Hospital, 237 NLRB 138 (1978).
32 One other witness, Sandra Teran, testified regarding the alleg-
edly unlawful statements of Judy Castillo. Notwithstanding that her
testimony was similar to that of other witnesses, I found much of
what she recalled contradicted by her pretrial affidavit and believe
she exhibited a bias against Respondent for refusing to reemploy her
after she voluntarily left due to illness. Accordingly, I found her to
be an unreliable witness and do not credit her testimony. Accord-
ingly, I shall recommend dismissal of par. 9(b)(iii) of the third con-
solidated amended complaint, which was based on Teran’s unreliable
testimony. Likewise, I shall not credit her testimony regarding an al-
leged conversation with an individual named Arelia Juarez and make
no finding as to it.
33 Several aspects of the testimony of DeBedolla, Lopez Ruiz, and
Ramirez establish that Castillo may have made other statements vio-
asks employees for their complaints concerning their working
conditions, it, thereby, impliedly promises to make changes.
Great Plains Coca-Cola Bottling Co., 311 NLRB 509 at 513
(1993); Columbus Mills, 303 NLRB 225, 227 (1991); Astro
Printing Services, 300 NLRB 1028, 1034 (1990). Here, of
course, the promise to correct the problems was direct, and
the aforementioned conduct must be found to have interfered
with the employees’ Section 7 rights in violation of Section
8(a)(1) of the Act.
The next allegedly unlawful statements are the comments,
attributed to Rod Grimm, concerning the postponement of
employee health insurance benefits. Two employees, Maria
DeBedolla and Francisco Villalobos, testified in this regard,
and each not only corroborated the other but also was an
honest and straightforward witness. While Rod Grimm also
appeared to be testifying candidly, I note that he utilized a
Spanish-speaking individual, Rosa Rivera, who is apparently
a supervisor,30 to translate his remarks into Spanish and that
Respondent did not call Rivera as a witness. Accordingly, I
draw the inference that Rivera would have not have corrobo-
rated Grimm and, in said circumstances, shall credit
DeBedolla and Villa Lobos as to what Grimm said. Accord-
ingly, I find that, in a series of meetings with employees dur-
ing September 1991, Rod Grimm told them that Respondent
had been planning to institute a health insurance plan for the
employees ‘‘but at that time he couldn’t because the persons
from the union were there.’’ By blaming the Union and
union activity for Respondent’s decision to postpone the im-
plementation of a health insurance program, Rod Grimm
‘‘impaired’’ the Section 7 of the Act rights of Respondent’s
employees to support a union and to engage in union activity
and thereby engaged in conduct violative of Section 8(a)(1)
of the Act. Fontaine Body & Hoist Co., 302 NLRB 863, 870
(1991); Triec, Inc., 300 NLRB 743, 749 (1990).31
As to the allegedly unlawful statements of Judy Castillo,
there is no dispute that, during the preelection period in the
fall of 1991, she conducted numerous meetings with the
Arvin plant employees. Initially, with regard to the Sep-
tember meeting, about which Calixto Orellana and Francisco
Villalobos testified, the testimonial demeanor of each was
that of a candid witness, testifying to the best of his recollec-
tion. Moreover, they corroborated each other as to their
recollection of what Castillo said at that meeting. In contrast,
as I viewed her, Castillo seemed to be a most disingenuous
witness. On this point, the two supposed corroborative wit-
nesses did not corroborate her assertion that, after making his
political comment, Orellana placed his head on a lunch table
for the remainder of the meeting and failed to deny the com-
ments, attributed to Castillo by Orellana and Villalobos. In
these circumstances, crediting the reliable testimony of the
two employees, I find that, during this September meeting,
Castillo told the assembled employees that, if they ‘‘accept-
ed’’ the Union, they could lose benefits. At that point,
Orellana interjected, asking what benefits were they going to
lose as they did not have any, and Castillo replied ‘‘the ben-
efit we could lose was our job.’’ According to Villalobos,
who I specifically credit on this point, Castillo added that the
boss would remedy any problems at the plant by bringing in
enough workers to ensure only 8 hours of work each day for
the employees. There can be no question that Castillo’s first
comment constituted nothing less than a threat of job loss,
and, as such, was blatantly coercive and violative of Section
8(a)(1) of the Act. Great Plains Coca Cola, supra at 512;
Metalite Corp., 308 NLRB 266 at 274 (1992); Triec, Inc.,
supra at 748. Further, as employees, including Villalobos,
were accustomed to working several hours of overtime a
week, Castillo’s second comment clearly constituted a threat
of reduced work hours and, as such, was clearly coercive and
violative of Section 8(a)(1) of the Act. Heartland of Lansing
Nursing Home, 307 NLRB 152 at 158 (1992); Uniontown
Hospital Assn., 277 NLRB 1298, 1299 (1985).
Three other employees (Maria DeBedolla, Marcella Lopez
Ruiz, and Victoria Ramirez) testified concerning allegedly
coercive comments by Judy Castillo at employee meetings at
the Arvin facility. In contrast to the mendacious testimonial
demeanor of the latter, each of the three employees appeared
to have been a frank and sincere witness, and each shall be
credited herein as to what she recalled.32 Echoing the testi-
mony of Francisco Villalobos, most of the labor relations
consultant’s allegedly unlawful threats concerned loss of
hours or overtime. Thus, DeBedolla recalled Castillo threat-
ening ‘‘that if we voted for the union . . . the company as
planning on making changes . . . that we were going to get
less hours. That they were going to make three shifts instead
of two. Eight hours each shift.’’ Likewise, according to
Lopez Ruiz and Ramirez, Castillo warned ‘‘that if the union
came in, we might work less hours, that with the union we
might have a higher salary and the company could not con-
tinue to give 10 to 10-1/2 hours with a higher salary’’ and
‘‘that if the union won [the company] would reduce our
hours, no more overtime, less than eight hours and that was
inconvenient for us.’’ As stated above, overtime and an extra
day of work each week were, and remain, important condi-
tions of employment for Respondent’s employees, and I be-
lieve that Castillo’s blatant threats, that these would be af-
fected by employees’ support for a labor organization, clearly
were calculated to have a coercive and destructive effect on
the employees’ Section 7 rights and, therefore, I find them
violative of Section 8(a)(1) of the Act. Heartland of Lansing
Nursing Home, supra; Uniontown Hospital Assn., supra.33
93GRIMMWAY FARMS
lative of the Act. For example, according to DeBedolla and Lopez
Ruiz, Castillo implied that, if the workers voted for the Union, a
strike would be the immediate result. Moreover, according to Lopez
Ruiz, Castillo obliquely warned that Respondent would become
bankrupt if the employees voted for the Union, and Ramirez recalled
Castillo threatening that the Company would close down if the em-
ployees voted for the Union. None of the foregoing was alleged as
unlawful in the third consolidated amended complaint, and at no
point during the trial or in her posthearing brief did counsel for the
General Counsel seek that I find the foregoing unlawful. In these cir-
cumstances, I shall make no findings as to the legality of such state-
ments.
34 With regard to the conduct of Montes, Respondent argues that,
as the employees, whom she supervised, were seasonal employees
and, thus, excluded from the bargaining unit, whatever conduct may
have been directed toward them may not be deemed objectionable.
Whatever the validity of such an argument, I note that the Arvin
night-shift employees had regular contacts with bargaining unit em-
Continued
Finally, with regard to the two third consolidated amended
complaint allegations concerning Soccoro Montes, three sep-
arate incidents are involved. As to the first, Fidel Garcia im-
pressed me with his honest and candid testimonial demeanor
and was a far more forthright witness than Soccoro Montes,
whose recollection of the precipitating incident seemed
strained. Accordingly, I credit Garcia and find that, in March
1992, Montes approached Garcia, who was an open sup-
porter of the Union, at his work station, pulled him aside and
asked if he was happy working for Respondent and what he
was seeking from the Union. As they spoke, Garcia com-
plained about the competency of Respondent’s supervisors,
and Montes mentioned that Respondent had a training school
for lower-level supervisors and asked how Garcia knew so
much about human relations. Garcia said he had taken
courses in the subject, and Montes responded that another
foreman was not doing his job, asked if Garcia wanted the
job, and said ‘‘that if I would stop my support for the union
. . . she would be able to help me.’’ Notwithstanding that
Garcia declined Montes’ offer, the offer of a promotion tied
to an employee’s commitment to forgo support for a union
is patently coercive, destructive of employees’ Section 7
rights, and violative of Section 8(a)(1) of the Act. Great
Plains Coca Cola Bottling Co., supra at 517.
Mario Guttieruz testified with regard to the second inci-
dent, involving Montes. While he had been terminated by
Respondent shortly after the election and I recognize the pos-
sibility of bias, while testifying, Guttieruz’ demeanor was
that of a candid and straightforward witness, and I shall cred-
it his detailed recollection of the incident over Montes’ bare
denial of unlawful conduct. Accordingly, I find that, in
March 1992, Guttieruz, who was an open supporter of the
Union, was called from his work station and instructed to re-
port to Montes’ office. He did so, closed the door, and ob-
served another women in the office with Montes. The latter
began the conversation, asking ‘‘for what we wanted a
union’’ and ‘‘what is the union going to bring you.’’ When
Guttieruz responded that the employees wanted representa-
tion because of the many ‘‘injustices,’’ both women laughed;
Montes then told the employee to return to work. Having
considered all the circumstances surrounding Montes’ ques-
tioning of Guttieruz, as the Board directed in Rossmore
House, 269 NLRB 1176, 1177 (1984), I note that the interro-
gation occurred in the supervisor’s office after Guttieruz was
called from his work station; that the door to the office was
closed; that the intent of Montes clearly was to interrogate
the employee with no pretext of casual conversation; that
Montes had no valid purpose for her conduct; and that the
supervisor’s questioning was in the presence of a stranger.
Notwithstanding Guttieruz’ open support for the Union, I
find that, in the above circumstances, the interrogation of
Guttieruz, by Montes, coercively interfered with and re-
strained the former in the exercise of his Section 7 rights and
was violative of Section 8(a)(1) of the Act. Heartland of
Lansing Nursing Home, supra at 155.
The third instance of allegedly unlawful conduct, involving
Soccoro Montes, consists of conversations between the su-
pervisor and Salvador Pantoja, who testified in a truthful
manner and appeared to be a far more impressive witness
than did Montes. Relying on the account of the former, I find
that, one night in February or March 1992, after having spent
more time in the bathroom than Montes felt necessary,
Pantoja was summoned to Montes’ office, and the supervisor
asked what had taken so long. Pantoja denied that his rest-
room stay exceeded the norm, and Montes thereupon ‘‘asked
me what we were gaining in being with the union.’’ Then,
after some more conversation about the Union, Montes ac-
cused Pantoja of being a ‘‘dependent’’ of the Union and
asked him ‘‘what are seeking with the union that you can’t
find with the company?’’ Then, 2 weeks before the election,
Pantoja was again paged to Montes’ office and, with the
door closed, Montes asked ‘‘what were we looking for, what
was it that we wanted with the union that I was bothering
the people about.’’ Pantoja replied that the employees were
working for their ‘‘necessities,’’ and Montes asked what he
thought the Union could do. Again, utilizing the approach of
the Board, in Rossmore House, supra, I find that neither of
these conversations were casual ones and that Montes’ pur-
pose was to interrogate Pantoja about his own union sym-
pathies and those of his fellow employees. While the two
may have been friends, the coercive character of the con-
versations is revealed by Montes accusation that Pantoja was
a dependent of the Union. In these circumstances, I believe
that the interrogations of Pantoja interfered with his Section
7 rights and were violative of Section 8(a)(1) of the Act.
V. THE OBJECTIONS TO THE CONDUCT OF THE ELECTION
In view of Respondent’s foregoing unfair labor practices
including refusing to retain Manuel Pelayo in his position as
a forklift driver because of his support for the Union, an-
nouncing an unlawfully broad union solicitation policy and
disciplining Marcella Lopez Ruiz, with a written warning, for
allegedly violating said unlawful policy, and interfering with
employees’ Section 7 rights by placing the onus on the
Union for the postponement of an employee health insurance
plan, threatening employees with loss of jobs if they selected
the Union as their bargaining representative, threatening em-
ployees with loss of hours and overtime if they selected the
Union as their bargaining representative, informing employ-
ees that another employee would not be retained because of
his support for the Union, promising employees that they
will be promoted to supervisory positions if they forgo their
support for the Union, and interrogating employees as to
their union sympathies and those of their fellow employees,34
94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees and that, therefore, there is every likelihood that bargaining
unit employees were made aware of Montes’ unfair labor practices.
35 I have considered counsel for Respondent’s contention, that
much of the unlawful conduct occurred prior to the original date of
the representation election and, therefore, the effect of such was dis-
sipated by the time of the second election, and reject it as ignoring
the serious nature of Respondent’s conduct. In particular, I point to
the Judy Castillo’s threats, in the fall of 1991 at employee meetings,
of job loss and loss of hours and overtime if the employees selected
the Union as their bargaining representative. Not only do I believe
that her threats were widely disseminated among a group of unso-
phisticated workers but also such conduct must have had an utterly
devastating effect on employees, who were dependent on receiving
overtime pay and payment for an extra day of work as supple-
mentary income. To contend that employees would not have recalled
Castillo’s warnings when they cast their ballots in May, I believe,
is to ignore reality.
36 In my view, whatever occurred subsequent to Respondent’s re-
fusal to place Pelayo back in his forklift position is only relevant
for purposes of backpay and should be considered in any compliance
proceeding.
and the fact that the conduct, attributed to Rod Grimm and
Judy Castillo was communicated to groups of employees, I
believe that Respondent created an atmosphere in which a
fair election was impossible35 and, in such circumstances, do
not view the election as representing the free choice of the
employees. Accordingly, inasmuch as the Union’s objections
reflect the found unfair labor practices, I shall recommend
that the objections be sustained, that the election be set aside,
and that the representation case be remanded to the Regional
Director for the purpose of conducting a second election.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 87 and Local 78-B are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondent engaged in conduct violative of Section
8(a)(1) and (3) of the Act by, on or about December 4, 1991,
because of his support for the Union, refusing to retain
Manuel Pelayo in his position as a forklift driver at its La-
mont facility after the conclusion of his leave of absence.
4. Respondent engaged in conduct violative of Section
8(a)(1) of the Act by, in or about August and on November
27, 1991, announcing, and maintaining in effect, an overly
broad union solicitation policy, which prohibited employees
from engaging in union solicitation on their own nonworking
time.
5. Respondent engaged in conduct violative of Section
8(a)(1) and (3) of the Act by, on or about November 27,
1991, issuing a written warning notice to employee Marcella
Lopez Ruiz for having assertedly violated its aforementioned
overly broad union solicitation policy.
6. Respondent engaged in conduct violative of Section
8(a)(1) of the Act by, in or about August 1991, soliciting
grievances and complaints from employees with the promise
to make changes in order to discourage employees’ union ac-
tivity.
7. Respondent engaged in conduct violative of Section
8(a)(1) of the Act by, in or about September 1991, informing
employees that, due to the presence of the Union, it would
have to postpone the implementation of an employee health
insurance plan.
8. Respondent engaged in conduct violative of Section
8(a)(1) of the Act by, in September and December 1991,
threatening employees with loss of jobs if they voted in favor
of the Union in a pending representation election.
9. Respondent engaged in conduct violative of Section
8(a)(1) of the Act by, in September and December 1991,
threatening employees with loss of hours and overtime if
they voted in favor of the Union in a pending representation
election.
10. Respondent engaged in conduct violative of Section
8(a)(1) of the Act by informing employees that another em-
ployee would not be retained because of his support for the
Union.
11. Respondent engaged in conduct violative of Section
8(a)(1) of the Act by, in or about March 1992, promising to
an employee he would be promoted to a supervisory position
if he would agree to forgo any further support for the Union.
12. Respondent engaged in conduct violative of Section
8(a)(1) of the Act by, in or about March and May 1991, co-
ercively interrogating employees as to their union sympathies
and the union sympathies of their fellow employees.
13. The aforementioned unfair labor practices constitute
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
14. Unless specifically found above, Respondent engaged
in no other unfair labor practices.
REMEDY
Having found that Respondent engaged in serious unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it be ordered to cease and desist
from engaging in such conduct in the future and, further, that
Respondent be ordered to take certain affirmative action to
effectuate the policies of the Act. As to Respondent’s unlaw-
ful refusal to retain Manuel Pelayo in his position as a fork-
lift driver at the Lamont plant after the conclusion of his
leave of absence, during which he was incarcerated in a local
jail, the standard Board remedy should apply.36 Thus, Re-
spondent shall be ordered to offer Pelayo immediate and full
reinstatement to his forklift driver position at the Lamont
plant or, if that position no longer exists, to a substantially
equivalent one, without prejudice to his seniority or other
rights and privileges, and to make him whole for any loss
of pay he may have suffered, because Respondent unlawfully
refused to retain him, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Isis Plumbing Co., 138 NLRB
710 (1962), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). With regard to the
written warning notice, which was unlawfully given to Mar-
cella Lopez Ruiz for assertedly violating its overly broad
union solicitation rule, Respondent shall remove the warning
notice, remove, from its files, any reference to the unlawful
reprimand, and notify Lopez Ruiz, in writing, that such has
been done and that the written warning will not be used
against her in any way. Additionally, I shall recommend that
Respondent be ordered to post a notice, setting forth its obli-
gations.
[Recommended Order omitted from publication.]