Holsum de Puerto Rico, Inc.

National Labor Relations Board - Board Decisions

May 24, 2005

344 N.L.R.B. 694 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 85
694
Holsum de Puerto Rico, Inc. and Carlos Martinez
Toro and United Auto Workers International
Union, Local 2429. Cases 24–CA–9408, 24–CA–
9487, and 24–CA–9589
May 24, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On September 10, 2004, Administrative Law Judge
George Aleman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-

1 The General Counsel contends that certain of the Respondent’s ex-
ceptions should be disregarded. The judge found, inter alia, that the
Respondent violated Sec. 8(a)(1) of the Act by (a) engaging in surveil-
lance of employees’ protected activities; (b) creating the impression of
surveillance of employees’ protected activities; (c) threatening em-
ployee Ramon Cruz with unspecified adverse consequences; (d) coer-
cively interrogating employees Cruz, David Montalvo, and Rolando
Rodriguez; and (e) coercively interrogating employee Jose Santiago in
May 2003. The General Counsel contends that the Respondent’s ex-
ceptions to the foregoing findings do not meet the minimum require-
ments of Sec. 102.46(b) of the Board’s Rules and Regulations. We
agree. The Respondent merely recites the findings excepted to and
cites to the judge’s decision without stating, either in its exceptions or
its supporting brief, on what grounds the purportedly erroneous find-
ings should be overturned. Under these circumstances, we find, in
accordance with Sec. 102.46(b)(2), that the Respondent’s exceptions to
the foregoing unfair labor practice findings should be disregarded. See
Oak Tree Mazda, 334 NLRB 110 fn. 1 (2001).
ings,2 and conclusions3 and to adopt the recommended
Order4 as modified.
For the reasons stated by the judge except as modified
herein, we adopt the judge’s finding that the Respon-
dent’s discharge of Santiago violated Section 8(a)(3).
Santiago was discharged following an incident in which
he took several cups of coffee from a company dis-
penser—the coffee was free to employees—and gave
them to individuals who were distributing union litera-
ture outside of the Respondent’s facility. At the inter-
view that culminated in Santiago’s discharge, Supervisor
J. P. Velez asked Santiago why he had given coffee to

2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless a clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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 discharged em-
ployee Jose Torres in violation of Sec. 8(a)(3) of the Act, we find it
unnecessary to rely on his finding that letters written by the Respon-
dent’s president, Ramon Calderon, expressing opposition to unioniza-
tion show evidence of animus. The Respondent’s antiunion animus is
amply demonstrated by its numerous violations of Sec. 8(a)(1).
In September 2002, Santiago and Torres were asked by their super-
visors, in separate encounters, whether they had received Calderon’s
letter and what they thought about it. In adopting the judge’s finding
that these questionings, under the totality of the circumstances, consti-
tuted coercive interrogations in violation of Sec. 8(a)(1), Chairman
Battista and Member Schaumber do not pass on whether asking the
employees whether they had received Calderon’s letter, without more,
would have constituted unlawful interrogation.
3 We will amend the judge’s third conclusion of law to correspond to
the 8(a)(1) violations found.
4 The General Counsel requests that the judge’s recommended Order
be modified to require the Respondent to post notices in both English
and Spanish. As bilingual notices are customary in Region 24, we shall
modify the judge’s recommended Order accordingly. Hospital Del
Maestro, 323 NLRB 93 fn. 2 (1997).
HOLSUM DE PUERTO RICO, INC. 695
nonemployees who were distributing union propaganda
against the Company. Santiago was told to prepare a
written report about the incident, but he declined to do
so. Santiago was then terminated for “removing com-
pany property without authorization,” according to the
personnel action form documenting his discharge. In
finding that Santiago’s discharge violated Section
8(a)(3), the judge, inter alia, cited several grounds for
finding the reason stated on Santiago’s personnel action
form pretextual. In adopting the judge’s pretext finding,
we rely solely on the question Velez posed at Santiago’s
discharge interview, which demonstrated that the real
reason Santiago was discharged was that, in Velez’
words, he gave the coffee to persons who were distribut-
ing “union propaganda against the Company.”5
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion of
Law 3.
“3. By engaging in surveillance of its employees’ pro-
tected activities, creating the impression that it was keep-
ing its employees’ union activities under surveillance,
coercively interrogating employees about their union
activities, and threatening employees with discharge and
other unspecified adverse consequences if they supported
the Union, the Respondent violated Section 8(a)(1) of the
Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Holsum
De Puerto Rico, Inc., Toa Baja, Puerto Rico, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its facility in Toa Baja, Puerto Rico, in both the English
and Spanish languages, copies of the attached notice
marked “Appendix.”39 Copies of the notice, on forms
provided by the Regional Director for Region 24, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has

5 Chairman Battista observes that Santiago could have been lawfully
disciplined for refusing the order to prepare a written report of the
coffee incident, but the Respondent never raised insubordination as a
reason for discharging Santiago.
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since July 25, 2002.”

Ana Ramos & Jose Ortiz, Esqs., for the General Counsel.
Howard S. Linzy, Esq., for the Respondent.
Miguel Simonet Sierra, Esq., for the Charging Party.
DECISION
GEORGE ALEMÁN, Administrative Law Judge. This case
was tried in Hato Rey, Puerto Rico, on various dates between
November 17, 2003, and January 13, 2004. The charges, and
amendments thereto, were filed between October 11, 2002 and
June 18, 2003.1 A consolidated complaint issued on October
16, 2003.
The complaint alleges that Holsum de Puerto Rico, Inc. (Re-
spondent), has, in various manner, violated Section 8(a)(1) and
(3) of the Act. The Respondent, by answer dated October 24,
2003, denies engaging in any unlawful conduct. On the entire
record, including my observation of the demeanor of the wit-
nesses, and after considering the briefs filed by counsel for the
General Counsel, the Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Puerto Rico corporation with an office
and place of business in Toa Baja, Puerto Rico, where it is en-
gaged in the business of processing, sale at the retail and
wholesale level, and distribution of bread and other bakery
products. During the year preceding issuance of the complaint,
a representative period, the Respondent, in the course and con-
duct of its business operation, purchased and caused to be
shipped to its Toa Baja facility goods and materials valued in
excess of $50,000, which goods and materials were transported
and delivered to its plant directly from points and places out-
side the Commonwealth of Puerto Rico. On these admitted
facts, I find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. I further find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Allegations
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act by engaging in unlawful surveillance of its
employees activities; creating the impression that it was engag-
ing in such surveillance; threatening employees with unspeci-
fied reprisals and loss of jobs for engaging in such activities;
and unlawfully interrogating employees regarding their union
activities. It further alleges that the Respondent violated Sec-

1 The charge in Case 24–CA–9589 was filed by United Automobile,
Aerospace, and Agricultural Implement Workers of America Interna-
tional Union, Local 2429, AFL–CIO (the Union).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD696
tion 8(a)(3) and (1) of the Act by unlawfully discharging em-
ployees José Torres Figueroa (Torres) and José Santiago
Maldonado (Santiago) for engaging in union or other protected
concerted activity.2
B. Factual Background
The Respondent, as noted, is in the business of processing
and selling baked products throughout Puerto Rico. In carrying
out this function, it employs numerous categories of employees,
including salespersons, whose function it is to deliver Respon-
dent’s products in company-owned trucks or vehicles to various
retail establishments throughout Puerto Rico. Alleged dis-
criminatees Torres and Santiago both were employed as sales-
persons at the time of their discharge.
The record reflects that during the summer of 2002, certain
of the Respondent’s salespersons took an interest in obtaining
some form of representation. Thus, on July 24, 2002, and 1
week later on July 30, 2002, a group of salespersons held meet-
ings to discuss job-related problems they were having and to
determine how best to address them with management. Ac-
cording to Santiago, he, Torres, and four other employees took
part in organizing that first July 24 meeting which was held at a
public beach in the town of Dorado (Tr. 430). Santiago testi-
fied, without contradiction, that he personally notified a major-
ity of the salespersons of the meeting and informed them during
those conversations that the purpose of the meeting was to dis-
cuss work-related issues that were troubling employees. Torres
testified, also without contradiction, that it was Santiago who
scheduled the meeting for July 24, and that he assisted Santiago
in contacting other employees. Torres recalls having raised at
the July 24 meeting an issue concerning the manner in which
merchandise that was to be delivered to customers was being
distributed to the salespersons. The July 24 meeting, according
to Torres, turned out to be a fairly disorganized event, prompt-
ing employees in attendance to agree to a second meeting 1
week later, on July 30. Santiago, Torres, and approximately 40
other salespersons did in fact meet on July 30, at a Karate
school in the town of Vega Alta where various work-related
issues, including wages, were discussed among those present.
Ramon Cruz was employed by the Respondent as a sales-
person for some 12 years before voluntarily resigning in August
2002. Cruz attended both the July 24 and 30, 2002 meetings.
He testified, without contradiction, that the day after the July 24
meeting, his immediate supervisor, Antonio DeJesus, rode
along with him in his truck as he covered his route.3 Cruz

2 See, Tr. Vol. 1, p. 7. Reference to testimonial evidence is identi-
fied herein by transcript (Tr.) page number; exhibits are identified
either as “GCX” for a General Counsel exhibit, or “RX,” for a Respon-
dent exhibit, followed by the exhibit number. Finally, reference to
arguments made by the parties in their respective briefs will be identi-
fied either as “GCB” for the General Counsel’s brief, “RB” for the
Respondent’s brief, and “CP” for the Charging Party’s brief, followed
by the brief page number(s).
3 Cruz’ description of DeJesus as his immediate supervisor was not
challenged by the Respondent. According to Cruz’ undisputed testi-
mony, DeJesus was the one who evaluated him, audited his routes,
authorized his vacations, and to whom he, Cruz, reported in the event
of absences. The complaint alleges, and, given Cruz’ above undisputed
description of DeJesus’ duties, I find that DeJesus was at all times
claims that at one point after he had finished servicing K-Mart,
one of Respondent’s customers, DeJesus remarked to him that
he “knew everything about the meeting” and cautioned Cruz
“to be careful” because he knew “how Holsum worked.” Cruz
told DeJesus not to worry because employees were doing things
correctly. On cross-examination, Cruz recalled that DeJesus
also commented that he knew employees at the meeting were
“asking for money.” According to Cruz, that was all that was
said by DeJesus regarding the previous day’s employee meet-
ing (Tr. 26; 41).
Cruz also testified that the day after he attended the second
employee meeting on July 30, he was not scheduled to work
and was at home sleeping when he received a call from DeJe-
sus. During that conversation, according to Cruz, DeJesus
asked him who had attended the meeting the day before and
what had been discussed. Cruz declined to respond to DeJesus’
questioning, stating that he was trying to get some sleep. The
conversation ended at that point. DeJesus did not testify. Cruz’
testimony is, therefore, unrebutted. Despite some minor dis-
crepancies in his testimony, from a demeanor standpoint, I
found Cruz to be a wholly credible witness. Accordingly, and
given the unrefuted nature of his account, I credit Cruz as to
what occurred and was said to him by DeJesus following the
July 25 and 30 employee meetings.
A third employee meeting was scheduled for the evening of
August 13, 2002, at the Karate school. Santiago testified that
on the morning of August 13, 2002, as he was doing his route,
he stopped at a K-Mart in the town of Guaynabo, Puerto Rico,
which was part of his route, where he came across admitted
Supervisor Luis Rojas Laracuente (Rojas) who was making
changes to or rearranging the shelves where the Respondent’s
products were generally placed.4 Santiago claims that he then
began assisting Rojas in shelving the merchandise, and that
they engaged in some small talk which eventually turned to the
employee meetings held in late July. At one point, according to
Santiago, Rojas commented that a salesperson who had been in
attendance at both employees meetings had met with manage-
ment and notified it of everything that had occurred at the meet-
ings. Santiago purportedly responded that employees had a
right to meet and organize themselves in order to discuss their
work-related problems with management. Santiago claims that
Rojas answered that the Respondent would listen to their de-
mands and be willing to negotiate over everything except
money. Rojas, Santiago further claimed, told Santiago that this
same unnamed salesperson had also identified Santiago and
Torres as the organizers, and cautioned Santiago that he and
Torres should be careful because “they had them in their
sights.” (Tr. 411–413.) At one point during cross-examination,
Santiago also testified that Rojas stated that “the Company had
taken action against other employees for this type of thing and
that they would do so again.” However, when pressed by Re-

material herein a supervisor within the meaning of Sec. 2(11) of the
Act.
4 Rojas testified that he has been employed by Holsum for 14 years,
e.g., since around 1990, and that he has held the position of sales su-
pervisor for approximately 12 years, or since about 1992. At the time
of the hearing, Rojas was in charge of sales division No. 5 (Tr. 808–
809).
HOLSUM DE PUERTO RICO, INC. 697
spondent’s counsel, Santiago admitted that Rojas, in fact, had
not made this latter remark, and explained that he (Santiago)
was simply expressing the views shared by other Company
salespersons. (Tr. 532.) The conversation, Santiago claims,
then changed to other subjects until they left the K-Mart facil-
ity.
Rojas recalls speaking briefly with Santiago on two occa-
sions at the Guaynabo K-Mart sometime in August 2002, al-
though he could not recall the specific date of the conversation.
His version differs substantially from Santiago’s. He testified
that while the Guaynabo K-Mart was not within his supervisory
jurisdiction, the Respondent during that period had decided to
“set up” all of its K-Mart clients and that he had been assigned
to set up the Guaynabo K-Mart because he lived nearby.5
Rojas explained that on the day of his conversations with Santi-
ago in August 2002, he arrived at the Guaynabo K-Mart around
7 a.m. to begin setting up, but that Santiago, the salesperson in
charge of the route covering the Guaynabo K-Mart, arrived 20
minutes later. He claims that when Santiago arrived, he in-
structed him to continue with his route and that he, Rojas,
would do the setting. According to Rojas, nothing else was
said between the two at that time. The entire conversation, he
claims, lasted some 3 to 4 minutes.
As to the second conversation, Rojas testified that Santiago
was supposed to return to the Guaynabo K-Mart to fill up the
shelves, and that when he did not show up, he called the Com-
pany in an effort to contact Santiago. Santiago did show up
some 20 minutes later at which point Rojas told him that the
setting had been completed but that some of the products to be
used in the setting were not available. Santiago, he recalled,
told him that the needed products were in his truck and left to
retrieve them. When Santiago returned from his truck with the
products and began placing them on the shelves, Rojas claims
he left the K-Mart store. According to Rojas, that was all that
occurred and was said during that second conversation (Tr.
812–813). Santiago’s testimony contains no mention of a sec-
ond conversation occurring with Rojas on August 13.
I credit Rojas’s account of what occurred and was said be-
tween himself and Santiago on August 13. While Santiago was
a generally reliable witness, his embellishment on cross-
examination as to what Rojas said to him regarding action that
had been taken against other employees for engaging in similar
activities, although subsequently recanted, nevertheless casts a
cloud over his version of the August 13, conversation with
Rojas. I am inclined to agree with counsel for the General
Counsel that Rojas’ own testimony is not free from doubt. His
claim, for example, of never having seen the “union avoidance”
policy letter Calderón circulated with his September 5, 2002
memo (see GCX-3) to all sales department employees (dis-
cussed below), which would have included Rojas, and their
families is simply not credible. Still, I am convinced that Rojas
provided a more accurate account of what occurred between
himself and Santiago on August 13. Accordingly, Rojas’ ac-
count is credited.

5 The function of a “set up” or “setting” is to establish more shelf
space for the Respondent’s products at its clients stores and facilities.
Santiago testified that after work on August 13, 2002, he left
for the scheduled employee meeting and that, as he approached
the Vega Alta town plaza, close to where the meeting was to be
held, he noticed a group of employees milling around. As he
joined the group and waited for other employees to arrive,
Santiago and others observed two individuals sitting on a
nearby bench across the street watching the group, and, a short
while later, saw the same two individuals driving around in a
jeep Cherokee taking pictures of, and videotaping, the group’s
activities. Santiago reported the videotaping incident to
Maldonado, the owner of the Karate school, and asked him to
call the police. The local police were in fact called and, on
arriving soon thereafter, engaged in a discussion with the two
individuals. The individuals in question, subsequently identi-
fied as Jorge Figueroa (J. Figueroa) and Eduardo Gonzales (E.
Gonzales), were employed by Los Angeles Guardianes, a pri-
vate detective service which the Respondent admits retaining
purportedly for the purpose of “investigat[ing] persons possibly
involved in stealing [Company] merchandise” (RB:3). When
the police arrived, Santiago phoned Torres to tell him what was
going on. Torres testified that on arriving for the meeting, the
police were already present. Both Santiago and Torres recall
seeing Figueroa and Gonzales being escorted to the local police
station. They testified that they also went to the police station
to see what would happen. Santiago claims that once there, the
police gave him the names of the two individuals in the event
employees wished to file a complaint or seek a protective order
against J. Figueroa and E. Gonzales.
Angel Figueroa (A. Figueroa) is employed by Los Angeles
Guardianes as its head private detective and consultant. He
testified that he was verbally contacted by Respondent’s secu-
rity director, Joe Gonzalez, sometime in August 2002, and
asked to perform some work for the Respondent at the Vega
Alta town plaza on August 13, 2002. According to A. Figue-
roa, the work Gonzalez asked him to do consisted of an investi-
gation of persons the Respondent believed were stealing Com-
pany merchandise. When A. Figueroa told Gonzalez he could
not do the work because of a busy schedule, Gonzalez asked
him to contact J. Figueroa, who also did investigative work, to
see if the latter could perform the work in question. A. Figue-
roa, however, recommended that Gonzalez call J. Figueroa
himself directly and see if he could do the work. Gonzalez
apparently did contact J. Figueroa directly for, according to A.
Figueroa, he subsequently received a call from J. Figueroa ask-
ing if he could do the work for the Respondent under the Los
Angeles Guardianes’ name as his own private detective’s li-
cense had expired. Neither Gonzalez nor J. Figueroa was
called to testify, leaving unclear precisely what the two may
have discussed regarding the nature of the work to be per-
formed. Further, while claiming that J. Figueroa called and
asked him if he could perform the work for Holsum under Los
Angeles Guardianes, A. Figueroa made no mention in his tes-
timony of J. Figueroa describing to him during that phone call
the substance of the conversation he, J. Figueroa, purportedly
had with Gonzalez about the nature of the work be performed.
It is clear, however, that A. Figueroa agreed to allow J. Figue-
roa to do the requested work for the Respondent under his
Company’s name.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD698
A. Figueroa subsequently submitted a bill to the Respondent
for $2000 representing the work performed by J. Figueroa on
August 13, 2002. The amount, A. Figueroa testified, was used
to pay J. Figueroa who, in turn, paid a photographer, presuma-
bly E. Gonzales, for services rendered, and an attorney retained
by J. Figueroa to defend against criminal charges relating to his
alleged acts of surveillance. A. Figueroa claims that the inves-
tigation J. Figueroa was asked by Gonzalez to conduct on Au-
gust 13, 2002, at the Vega Alta Plaza was “aborted” because
“what we had been hired for [e.g., investigating persons in-
volved in stealing merchandise] was not happening there [e.g.,
at the Vega Alta town plaza].” A. Figueroa, however, did tes-
tify that at least one photograph was taken that day, although he
did not know who had possession of the photo. Nor did he
claim to know what was on the photograph.
After the August 13, 2002 incident with the security guards,
Torres sought advice from the Union on how best to address his
and his fellow employees’ concerns with management. Either
in September or October 2002, Torres and Santiago met with
Union Representative Juarbe who offered them advice on orga-
nizing techniques. Following that meeting, Torres and Santi-
ago began handing out union authorization cards on behalf of
the Union to fellow employees and telling them that the Union
could better represent their interests.
By September 5, 2002, the Respondent was aware that em-
ployees were trying to organize themselves as evident by a
letter circulated that day by its president, Ramon Calderón, to
employees expressing, inter alia, his opposition to unionization.
(GCX-3).6 The letter, which initially touts the Company’s suc-
cesses, describes how “a very small group” of former and cur-
rent employees had attacked the Respondent in television and
radio messages and in anonymous mailings to the Company.7
It explained that but for the publicly-aired messages, it would
have ignored the attacks from what it described as former em-
ployees who had been fired for justified reasons. Calderón
stated in his letter that once the attacks became public, he was
compelled to write the letter to all employees, and emphasized
in this regard that “when there is a serious threat to your job,
your future and the future of your family, you have the right to
know it.” Calderón further advised employees in his letter that
they “have an obligation to act to assure and guarantee that
those people who attack Holsum and as a result your job, are
not successful.” Calderón closed his letter by encouraging
employees to read and adhere to the Company’s union avoid-
ance policy, and to say “‘NO’ to the union agitators.”8
Santiago testified that not long after Calderón distributed his
letter, his immediate supervisor, Reynaldo Serrano, approached
and questioned him about it. According to Santiago, on Sep-
tember 16, 2002, Serrano called him into a small office cubicle

6 Appended to and circulated along with Calderón’s September 5,
2002 letter to employees was a copy of a union avoidance policy which
the Respondent enacted on March 1, 1999.
7 Santiago admitted taking part in an interview that subsequently
aired on local television in which he discussed with a reporter what he
perceived to be instances of “persecution” occurring at the Company
(Tr. 456).
8 Neither the contents nor distribution of Calderón’s letter is alleged
to be unlawful.
in the Respondent’s salesroom and asked Santiago if he had
received the letter and, if so, what he thought about it. Santiago
admitted receiving Calderón’s letter but refused to comment on
its contents. When Serrano pointed out that he had to record
Santiago’s views, the latter replied only that he did not believe
Calderón prepared the letter himself because it was poorly writ-
ten. Santiago claims that Serrano stopped writing at this point
and asked Santiago why he was “disgusted” with the Company.
Santiago answered that he was not disgusted with the Com-
pany, and that the fact that he had removed some of his per-
sonal accessories from the company vehicle he was assigned to
drive did not mean he was disgusted. As to why he removed
his personal items from the Company vehicle, Santiago ex-
plained that he did so because the Respondent had already fired
several individuals and he did not know what might happen to
other employees like himself. Santiago further recalled that
during this same conversation, Serrano questioned him about
the television interview.
Santiago’s above account of his meeting with Serrano is un-
disputed as the Respondent chose not to call Serrano as a wit-
ness.9 I credit Santiago and find that he, in fact, was asked by
Serrano if he had received Calderón’s letter and what he
thought of its contents for, as will be discussed below,
Serrano’s conduct in this regard is consistent with similar inter-
rogations conducted by supervisors of other employees.
Serrano’s statement to Santiago, which I find Serrano made,
that he was expected to prepare a report on whether he, Santi-
ago, had received Calderón’s letter, leads me to believe, par-
ticularly in light of the other interrogations that occurred, that
Serrano’s interrogation of Santiago was part of an overall plan
by the Respondent to ascertain whether or not employees
shared Calderón’s antiunion views.10
Torres was also questioned about Calderón’s letter on Sep-
tember 14, 2002, by Supervisor Benito Torres (B. Torres). He
testified, without contradiction, that around 6 a.m. on that day,
as he was in his company vehicle about to begin his route, B.
Torres approached and asked if he had received the letter the
Respondent sent to all employees. When Torres replied that he
had, B. Torres asked what he thought of it. Torres responded
by asking B. Torres if he had received a copy of Calderón’s

9 As evident from its brief, the Respondent apparently chose to in-
tentionally not call Serrano to refute or explain the remarks attributed to
him by Santiago. (RB:33.)
10 Support for a finding that the Respondent, soon after Calderón is-
sued his September 2002 letter, engaged in a pattern of interrogations
designed to ascertain how employees felt about the Union, can be
gleaned from a second letter issued by Calderón to employees several
months later, in May 2003 (see GCX–2). In the May 2003 letter, Cal-
derón tells employees that following distribution of his September 2002
letter, “a great majority of you assured us through the supervisors and
executives” that they were opposed to a union and that Holsum could
count on them. The Respondent did not explain how its supervisors
and managers acquired such knowledge. I find it highly unlikely that
employees would have, on their own, spoken with their supervisors
and/or managers regarding this subject. Rather, I find it more likely
than not that, as credibly testified to by Santiago and others, the Re-
spondent’s supervisors, following Calderón’s distribution of his Sep-
tember 2002 letter, were instructed to interrogate employees to deter-
mine where they stood concerning the Union.
HOLSUM DE PUERTO RICO, INC. 699
letter. When B. Torres answered that he had received Cal-
derón’s letter, Torres responded that he, B. Torres, should
therefore know what the letter said, and declined to give B.
Torres his view of the letter. Undeterred by Torres’ refusal to
give an opinion, B. Torres insisted that he needed some re-
sponse from Torres regarding the letter. Torres again refused to
do so, stating he did not want to compromise himself. (Tr. 167–
168.) B. Torres did not testify. Accordingly, Torres’ above
undisputed account is credited and found to be true.11
Salesperson Rolando Rodriguez attended the two July 2002
employee organizational meetings, having earlier learned of
them through Santiago and Torres. He also showed up for the
third employee meeting in August, but testified that the meeting
was never actually held because of the incident that occurred
involving the Los Angeles Guardianes agents, J. Figueroa and
E. Gonzalez. Rodriguez recalled receiving a copy of Cal-
derón’s September 2002 letter to employees (GCX–3), and to
being questioned about it by his immediate supervisor, Antonio
Nieves. Thus, he testified, without contradiction, that in Sep-
tember 2002, Nieves called him to a private meeting held in
Nieves’ office cubicle in the sales department. At this meeting,
Nieves discussed some work-related issues relating to product
spoilage with Rodriguez, and informed Rodriguez that he had
visited some of Respondent’s customers on Nieves’ route and
found everything to be fine. Nieves then brought up the subject
of Calderón’s September 5, 2002 letter which, as noted, re-
flected Calderón’ strong antiunion views. Thus, he asked Rod-
riguez if he had received a copy of Calderón’s letter, and what
he thought about it. Rodriguez replied that he had, but that he
had not yet fully read it and that, in any event, he, Rodriguez,
did not believe much in unions.12 Nieves further asked Rodri-
guez at one point what he thought of the employee meetings
that had been held. Rodriguez responded that he did not care
much about the meetings either, and then asked Nieves why he
was asking him such questions. Nieves replied, “No, just for
me to know.” (Tr. 93.) Nieves, according to Rodriguez, never
asked him who had attended, or what had occurred at, the meet-
ings (Tr. 103). Nieves did not testify. Accordingly, I credit
Rodriguez and find that sometime in September 2002, soon
after Calderón distributed his letter, Nieves asked Rodriguez if
he had received the letter and what he thought of it, and what
Rodriguez thought about the employee meetings.
The record is sparse regarding what occurred with the or-
ganizational drive between October 2002 and February 2003.
It does appear, however, that Torres and Santiago continued to
solicit support for the Union during the early months of 2003.
Thus, Torres testified, without contradiction, that between Feb-

11 On September 15, 2002, Torres prepared a written statement de-
scribing his September 14, 2002 encounter with B. Torres (see RX-9).
12 During his direct examination by counsel for the General Counsel,
Rodriguez stated that Nieves was the one who first broached the subject
of the Union during their conversation. However, when presented with
an affidavit previously given to the Board showing otherwise, Nieves
admitted that he, not Nieves, was the one who first mentioned the Un-
ion in their conversation. (Tr. 119.) This misstatement of fact by Rod-
riguez was, in my view, not intentional but rather the product of a poor
recollection on the question of who, in fact, had broached the subject
first. It does not, I find, affect his overall credibility.
ruary and April 2003, he spoke with coworkers about the Union
“almost every afternoon” after work at the Respondent’s em-
ployee parking lot, and that, during that period, he was able to
solicit cards from some 10–15 employees. Torres admits that
he at no time was questioned by any supervisor regarding his
union activities in the company parking lot, but did recall see-
ing at one point, Respondent’s human resources director, Nel-
son Velez, an admitted supervisor, sitting for some 15 minutes
in his parked vehicle near the guard hut adjacent to the parking
lot (Tr. 361–362). Velez was not asked about and consequently
did not deny Torres’ above claim. Santiago similarly testified,
also without contradiction, that between March and April 2003,
he distributed and collected signed authorization cards from
employees either at their homes or at the Respondent’s facility
(Tr. 220–221; 439). Their undisputed testimony in this regard
is credited.
On May 9, 2003, Calderón, as previously noted, sent an-
other letter to “members of the Sales Department and their
families,” similar to the one he mailed out on September 5,
2002 (GCX–2). The letter advised employees that the Respon-
dent had, in the past several days, become aware that “a union
continued to threaten the future and security of the Holsum
families.” In his letter, Calderón reiterated his opposition to a
union, stating that a union would not be beneficial nor in the
best interest of employees, the Company, or its clients, and
further expressed his appreciation to employees for assuring
Holsum, “through supervisors and executives, that Holsum
could count on them—that we do not need a union here.” Cal-
derón also noted in his letter that while Holsum was not sure
which union had been involved with its employees in 2002, he
suspected it was either Congreso de Union Industriales or an-
other labor organization, FUPO. He pointed out, however, that
the Company had recently become aware that another labor
organization, the United Steelworkers of America (USW), was
now involved. Calderón cautioned employees in the letter
against signing an authorization card for the USW, warning that
“a union threat hangs over us, the whole Holsum family.”
In May 2003, sometime after Calderón issued his letter,
Sales Supervisor Antonio Rivera questioned former sales em-
ployee David Montalvo about it. Thus, Rivera and Montalvo,
both of whom testified at the hearing, agree that such a conver-
sation took place at the parking lot of one of Respondent’s cus-
tomers, Stedletta Supermarket. Montalvo was, at the time,
providing service to Stedletta, and Rivera came along to evalu-
ate Montalvo’s work. Rivera claims that at one point during
their conversation, he asked Montalvo if he had received a copy
of Calderón’s letter, and when the latter said he had, told
Montalvo to “read it and study it.” He further recalled asking
Montalvo if he, Montalvo, had received any phone calls or
visits from union representatives, and that Montalvo replied he
had not. (Tr. 968–969.) Rivera did not explain why he solicited
such information from Montalvo.
Montalvo’s version of that conversation is at odds with
Rivera’s above account. According to Montalvo, Rivera asked
him if he “had received a letter from Holsum regarding the
union issue,” and what his opinion was of the letter. When
Montalvo admitted receiving and reading the letter, and com-
mented that he agreed with it, Rivera told him he was going to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD700
give Montalvo another copy so that he could read and be sure
of what was being said in it. Montalvo further recalled Rivera
saying that he knew “people from the union were visiting em-
ployees at their house[s],” and asked Montalvo if he had re-
ceived such a visit. Montalvo told Rivera that he was not at
that address anymore and, consequently, did not know if any
individual from the Union had gone to his house. Rivera, ac-
cording to Montalvo, went on to express his own gratitude to
the Company and then asked Rivera if he believed the Com-
pany paid well. Montalvo purportedly responded in the af-
firmative at which point the conversation ended. (Tr. 51–52,
54.)
I credit Montalvo’s version of what Rivera said to him, al-
though I also believe, given Rivera’s admission, that he further
questioned Montalvo on whether he had received any phone
calls from a union representative. From a demeanor standpoint,
Montalvo was a convincing witness whose testimony, I find,
was more trustworthy and believable in comparison to Rivera’s
testimony. Rivera’s testimony on cross-examination, that he
never actually asked Montalvo if he had received a specific
letter and had, instead, questioned Montalvo on whether he had
received some general correspondence from the Respondent
was confusing and, in my view, inconsistent with his testimony
on direct examination that he asked Montalvo “if he had re-
ceived a letter that the Company was sending.” Rivera’s ver-
sion simply lacked the ring of truth and, except for his admis-
sion that he questioned Montalvo on whether the latter had
received any phone calls or visits from union representatives, is
not worthy of belief. Accordingly, I credit Montalvo and find
that he was indeed questioned by Rivera on whether he had
received and read a copy of Calderón’s May 2003 letter regard-
ing the Union, and whether he had received any phone calls or
home visit from union representatives.
Santiago testified that on May 6, 2003, as he was reviewing
the merchandise he was about to load onto his truck for deliv-
ery, Rojas approached and asked if he knew Torres had been
fired. Santiago nodded his head acknowledging that he knew,
at which point, he contends, Rojas advised him to be careful
because he was going to be next, and to take care of his job.
(Tr. 449.) The conversation, according to Santiago, ended
when B. Torres approached them. Rojas denied having any
conversation at all with Santiago in May 2003. (Tr. 813.) I did
not, however, find Rojas’ denial overly convincing. Rather, his
denial was rather abrupt and, in my view, done with little or no
thought given to the question of whether he, in fact, had spoken
to Santiago at any time during the month of May 2003 (some 7
months earlier), in the “basket unloading area” or spoken with
Santiago about Torres at any location during the same month of
May. Rojas, in my view, was not being candid with his re-
sponse, but rather gave the expected denial without regard to
whether or not it was, in fact, true. Santiago, on the other hand,
came across as more convincing as to this particular conversa-
tion. As between the two, I found Santiago’s account more
credible than Rojas’ rather terse denial of the incident. Accord-
ingly, I find that on May 6, 2003, after asking Santiago if he
had heard of Torres’ discharge, Rojas cautioned Santiago to be
careful and to take care of his job because he was next.
Santiago further contends that he too was questioned in mid-
May 2003, about Calderón’s May 9, 2003 letter by his immedi-
ate supervisor, Juan Pablo Velez (J. P. Velez). Thus, he testi-
fied, without contradiction, that as he was heading towards an
unloading area, J. P. Velez approached and asked if he had
received a letter sent to Holsum employees at the beginning of
the month. When Santiago replied that he had, J. P. Velez
asked Santiago what he thought of the letter. Santiago re-
sponded that he had no opinion regarding the letter because
Serrano had asked the same question of him in September
2002, regarding Calderón’s earlier letter. J. P. Velez neverthe-
less continued questioning him, asking at one point what Santi-
ago thought about unions, and whether Santiago was going to
allow a person to come from the outside into his house to make
decisions about what was done at his house. Santiago re-
sponded that things at Holsum were not going to be like that,
and that the ones who would be making the decisions would be
the employees. J. P. Velez continued asking Santiago if he had
anything else to say to him, at which point Santiago stated that
he wanted to make one thing very clear; that he, J. P. Velez,
knew full well that he (Santiago) was one of the organizers of
the employee meetings held in July 2002, and that if he had to
do it all over again, e.g., organize the employees, he would do
so. The conversation ended at the point. J. P. Velez did not
testify. Accordingly, Santiago’s uncontested account of what J.
P. Velez asked and said to him in mid-May 2003 is found to be
credible and accepted as true.13 Thus, I find that J. P. Velez
questioned Santiago in mid-May 2003, on how he felt about
Calderón’s May 2003 antiunion letter, and that, at one point in
their conversation, Santiago admitted to J. P. Velez that he,
Santiago, had been one of the organizers of the 2002 employee
meetings, and would not hesitate to do so again.
In May 2003, alleged discriminatees Torres and Santiago
were terminated, the former purportedly for violating a com-
pany rule prohibiting drivers from carrying unauthorized pas-
sengers in company vehicles, the latter purportedly for remov-
ing or using company property, e.g., distributing six cups of
coffee to nonemployees, without authorization.
Torres worked for the Respondent as a salesperson from
1988 until discharged on May 1, 2003. Respondent’s general
sales manager, Victor Perez Cosme (Perez), testified that this
particular policy, referred to herein as the “no helper” policy,
has been in place since on or around September 23, 1995, when
it was first announced by Calderón at a meeting of managers
and sales supervisors. Calderón, according to Perez, also an-
nounced at this meeting that the penalty for a first-time viola-
tion of this policy was the immediate discharge of the offending
employee, and that supervisors who knew of and condoned the
practice by employees were also subject to immediate dis-
charge (Tr. 764).14

13 The fact that Santiago’s testimony was found not to be credible in
one respect does not require rejection of his entire testimony or render
other aspects of his testimony unworthy of belief, for it is quite com-
mon for a trier of fact to believe some, but not all, of a witness’ testi-
mony. See Americare Pine Lodge Nursing and Rehabilitation Center,
325 NLRB 98, 99 (1997), and cases cited therein.
14 The Respondent, on brief, described the penalty imposed as a “one
strike and you’re out” rule (RB:22, 24).
HOLSUM DE PUERTO RICO, INC. 701
Perez initially testified that prior to 1995, no such policy ex-
isted and no employee had ever been disciplined for carrying
nonemployees in company vehicles. However, when presented
with documentary evidence showing that disciplinary warnings
were in fact issued to employees prior to 1995 for having non-
employees in company vehicles, Perez admitted that such a
policy had, indeed, been in place prior to 1995, but that he sim-
ply had forgotten about it. (Tr. 661; 736.) According to Perez,
this particular prohibition is found in the Respondent’s “Stan-
dards of Conduct” handbook, falling under the third and sixth
“Examples of Improper Conduct” itemized on page 5 of the
handbook (see GCX–6[b]).15
Rojas, a sales supervisor since around 1992, also testified to
the existence of the “no helper” policy, but claimed that the
policy has been in effect since before 1995, and that, beginning
in 1995, the Respondent began emphasizing it more. He fur-
ther claimed that employees caught violating the policy were
subject to immediate dismissal for a first time violation. (Tr.
814–815.) Rojas further testified that, to his knowledge, the
“no helper” policy is not a written one. His assertion in this
regard appears to contradict Perez’ claim that the policy is con-
tained in Respondent’s “Standards of Conduct” handbook.
Ivan de la Torre Cruz (de la Torre), a former sales supervisor
for the Respondent, was called as a witness by the Respondent.
He testified that he last worked for the Respondent in March
2003, and that, prior to voluntarily leaving the Company, he
served as a sales supervisor for approximately 10 years, or
since about 1993. He contends that during that period, the Re-
spondent had a “no helper” policy in effect, as well as an “im-
mediate discharge” rule for violations of the policy. (Tr. 853.)
Perez admits that employees never received written notice
from Calderón of the new policy. He testified, however, that
within a day or so of the meeting with Calderón, he met with
and informed his supervisors of the new policy and of the “im-
mediate discharge” or “one strike, you’re out” penalty that
would be imposed for violations, and further instructed them to
notify the salespersons under their charge of the policy and of
the penalty imposed for its violation, and to report back to him
in writing that they had done so. (Tr. 660; 713; 722; 764.) Cop-
ies of written statements or memos sent by the sales supervisors
to Perez in response to his instructions were received into evi-
dence as Respondent’s Exhibit 22.16 A review of some of those

15 The “third” example of improper conduct cited by Perez states that
it is improper “to allow any person, relative, or stranger, who is not
duly authorized, to enter or remain in the areas of work and receiving,
or in the restricted areas of the little store or that of the Company,” the
“sixth” example, also cited by Perez as purportedly serving as a ban on
carrying unauthorized persons in company vehicles, states that it is
improper “to allow, help or conspire with any person to violate safety
rules.”
16 RX–22 contains nine such memos. They identify the following as
the sales supervisor for the corresponding sales division in late 1995:
Sabino Alvarado (division 1); Orlando Rosado (division 2); Jose A. De
Jesus (division 3); Richard Ortega (division 4); Juan Pablo Morales
(division 5); A. Nieves (division 6); A. Rivera (division 7); Benito
Torres (division 8); Thomas Cuebas (division 9). The record does not
make clear whether the sales department was made up of only nine
divisions or whether it may have included others. However, both Rojas
and de la Torre, as noted, testified to being sales supervisor since
supervisory statements reveals an inconsistency between what
Perez and Rojas claimed was the mandated penalty for a viola-
tion of the policy, e.g., immediate dismissal, and what the sales
supervisors told employees might occur from a breach of the
policy.
Division 2 Sales Supervisor Orlando Rosado’s memo to
Perez, for example, makes reference to a September 22, 1995
meeting he attended with Joe Torres on the use of “helpers” by
salespersons in company vehicles, and describes how he and
other supervisors at the meeting “were authorized to take disci-
plinary action to abolish this practice, including the issuance of
warnings and dismissal.” Rosado’s statement thus suggests that
supervisors could issue warnings to, rather than immediately
dismiss, employees who were caught violating the “no helper”
policy. Division 3 Supervisor Jose A. DeJesus’ memo to Perez
reflects that DeJesus told his employees only that “they could
lose their jobs” for violating the policy, not that they would be
immediately terminated for doing so.
Division 8 Supervisor B. Torres’ memo, addressed to Joe
Torres, states that “instructions were given to all salesmen
strictly barring the use of helpers on their respective routes,”
and that, if they violated this policy, “they will be given a warn-
ing in writing that could be prejudicial to their jobs.” (RX–22,
document 9.) Thus, both B. Torres and Rosado appear to have
told their respective employees the same thing, to wit, that vio-
lation of the policy could result in the issuance of a warning,
rather than an immediate discharge.
Division 9 Supervisor Thomas Cuebas’ memo (see RX–22,
document 10), addressed to all division 9 salespersons, in-
formed the latter that the “transportation of helpers on Com-
pany vehicles is strictly forbidden,” and that any salesperson
caught with a helper in the vehicle would “be subject to any
sanction that is provided at that time for violation of this rule.”
Cuebas further warned employees that repeated violations of
the “no helper” policy could lead to “suspensions.”17

around 1992 or 1993. Assuming the truth of their assertions, then
presumably they too must have received the same instructions from
Perez to notify the salesmen they were then supervising of the “no
helper” policy and to report back to him in writing that they had done
so. RX-22, however, contains no such memos from Rojas and de la
Torre to Perez.
It appears that Joe Torres, who did not testify, was present when
Perez met with his supervisors to inform them of the policy (see RX-
22, document 7). In fact, document 8 of RX–22, a September 28, 1995
statement from Supervisor B. Torres describing the instructions he gave
employees under his charge about the new policy, is addressed to Joe
Torres, not to Perez.
17 The English-language version of Cuebas’ memo submitted by the
Respondent into evidence translates the last sentence of the memo as
stating that “repeat offenders could be dismissed.” The last sentence in
the Spanish version of Cuebas’ memo reads as follows: “De prosequir
podría conllevar hasta suspensiones.” Counsel for the General Coun-
sel on brief (p. 44), contends, and I agree, that the correct English lan-
guage translation for the word “suspensiones” is “suspensions,” not
“dismissal” or, as translated in the English version of Cuebas’ memo,
“dismissed.” The Respondent concedes as much as it has, on brief (p.
24 fn. 4), used the word “suspensions” when referencing Cuebas’
memo. Accordingly, I find that Cuebas’ memo warned employees that
“repeated violations” of the “no helper” policy could result in “suspen-
sions,” not dismissals.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD702
Respondent’s Exhibit 22 further reflects that other supervi-
sors (e.g., A. Nieves, Sabino Alvarado, Juan Pablo Morales,
Richard Ortega, and A. Rivera) prepared and submitted memos
stating they had discussed the new policy with their employees.
Their memos, however, unlike those of Supervisors Rosado,
DeJesus, B. Torres, and Cuevas, give no indication that said
employees were ever told what, if any, penalty could or would
be imposed for a violation of the “no helper” policy. While I
do not doubt, therefore, that the Respondent has long main-
tained a policy prohibiting its salespersons from carrying unau-
thorized passengers in company vehicles, the supervisors’
memos contained in Respondent’s Exhibit 22 do not support,
and indeed appear to undermine, Perez’ and Rojas’ claim that
the Respondent has likewise maintained and enforced a “one
strike and you’re out” rule for violations of the policy. As
noted, the supervisors’ memos either make no mention of an
“immediate dismissal” or “one strike you’re out” rule, or reflect
that employees were told only that some lesser form of pun-
ishment, such as a warning or a suspension, might be meted out
for violations of the policy.
The Respondent’s claim that it has, since September 1995,
maintained and adhered to a “one strike you’re out” rule for
violations of the “no helper” policy is also undermined by the
testimony of former employee Eduardo Vega Toledo (Vega).18
Vega testified that in or around September 1996, he was seen
by Perez driving around with an unauthorized passenger (a
cousin) who was not a Holsum employee in his company vehi-
cle. Vega admits that he drove around with his cousin in the
company vehicle for several hours, and further admits having
been told of the “no helper” policy by his then supervisor, Or-
tega. Vega claims that when he returned his vehicle to the Re-
spondent’s facility later that day, Perez told him he had seen
Vega near the Rexville Plaza in the town of Bayamon with the
unauthorized passenger. When Vega explained that the pas-
senger was his cousin, Perez, Vega claims, decided to give him
another chance, but warned him not to do it again. Perez de-
nied the above incident.
I credit Vega and find that the incident occurred as de-
scribed by him. Certain factors, including inconsistencies in
Perez’ testimony, convince me that Perez was not being candid
regarding this incident. For example, while Perez on cross-
examination emphatically denied seeing Vega in 1996 driving
around with an unauthorized person in a company vehicle, on
direct examination by Respondent’s counsel, Perez stated, in
less certain terms, only that he had “no recollection” of the
incident. (Tr. 609; 673.) Further, Perez’ attempt to cast doubt
on Vega’s testimony on how he learned of the “no helper” pol-
icy is contradicted by Respondent’s own documentary evi-
dence, as well as by Perez’ own testimony.
Thus, initially, Perez implicitly disputed Vega’s assertion
that he was notified of the “no helper” policy by Supervisor
Ortega, by asserting that Sales Manager Serrano, and by impli-
cation not Ortega, was Vega’s supervisor in September 1995,

18 Vega had been on workman’s compensation until on or around
October 20, 2003, when his “employment reservation” under the Puerto
Rico’s workman’s compensation rules expired, and his employee status
was ended.
when the rule went into effect, and, therefore, the one who
notified Vega of the new policy. In support of his assertion,
Perez explained that soon after the policy went into effect in
September 1995, Serrano provided him with a document, pre-
sumably similar to the memos contained in Respondent’s Ex-
hibit 22, signed by employees under Serrano’s supervision,
including Vega, acknowledging that they had been informed by
Serrano of the new policy. Perez could not recall the specific
contents of the Serrano memo, or when he last saw the memo.
However, when pressed on this issue by Charging Party’s
counsel, Perez was forced to admit that Serrano was not a sales
supervisor in 1995, but rather became one sometime in 1997 or
1998. Prior to assuming his duties as a sales supervisor in 1997
or 1998, Serrano, according to Perez, managed several of the
Respondent’s “Tiendita” stores,19 and did not supervise any
salespersons. Serrano, therefore, could not have been Vega’s
supervisor in 1995, when the policy went into effect and, by
implication, not the one who informed Vega, and presumably
other Division 4 salespersons, of the new policy. (Tr. 676–678.)
The Serrano document that Perez claims he received purport-
edly showing that the former had notified Vega of the policy
was not produced by the Respondent, nor, as noted, was
Serrano called to corroborate Perez’ claim in this regard. Had
Perez received such a memo from Serrano, the Respondent, I
am convinced, would have produced it or, at the very least,
called Serrano to corroborate Perez’ account. The Respon-
dent’s failure to do so, coupled with the fact that Serrano, by
Perez’ own admission, was not a sales supervisor in 1995, fur-
ther convinces me that Serrano never sent any such memo, and
that the Respondent did not call Serrano as a witness for fear
that he would not have supported Perez’ assertions.
Bolstering Vega’s testimony that Ortega, not Serrano (as
claimed by Perez), notified him of the “no helper” policy in
September 1995, is document 6 of Respondent’s Exhibit 22,
Ortega’s memo to Perez dated “9–28–95,” notifying the latter
that all the division 4 salesmen, which presumably included
Vega, had been informed of the new policy. The memo is
signed by Ortega as the division 4 supervisor. Perez did not
deny receiving the memo, and testified only that he could not
recall receiving it on the date shown therein, or whether Vega
was at the time part of division 4 sales group (Tr. 767). Al-
though called as witness by the Respondent, Ortega was never
asked to confirm or deny Vega’s claim that he, Ortega, was his
supervisor in 1995, and the one who notified him (Vega) of the
“no helper” policy.
Perez’ denial of the incident is found not to be credible.
Rather, I find that, as testified to by Vega, in September 1996,
Perez observed Vega with an unauthorized passenger in his
Company vehicle and that, while he cautioned Vega about the
incident, Perez did not discharge or otherwise discipline him
for violating the Company’s “no helper” policy. Perez’ testi-
mony regarding the “no helper” policy particularly was also
unconvincing. Perez, for example, was inconsistent in describ-
ing the enactment of the “no helper” policy, claiming at first
that the policy did not exist prior to 1995, but subsequently

19 Perez could not remember if Serrano’s duties as manager of the
“Tienditas” occurred in 1995 or 1996.
HOLSUM DE PUERTO RICO, INC. 703
admitting that the policy was in existence before 1995. Further,
his testimony that the “no helper” policy derives from the lan-
guage in Respondent’s 1985 “Standards of Conduct” handbook
is simply not credible, for not only is there no specific mention
in the handbook language cited by Perez of a “no helper” pol-
icy, Rojas’ own testimony that the policy is not a written one
undercuts Perez’ reliance on the vague wording of the hand-
book to sustain his claim. Indeed, I find it more likely than not
that, as testified to by Rojas, the “no helper” policy is an un-
written rule that the Respondent has had since long before
1995, and that beginning in the latter part of 1995, the Respon-
dent decided to begin a more stricter enforcement of that pol-
icy.
I am not, however, convinced that along with his September
1995, decision to begin enforcing the “no helper” policy more
stringently, Calderón also instituted an “immediate discharge”
or a “one strike, you’re out” rule for violators of the policy.
Several factors cause me to doubt that claim. There is, for ex-
ample, the unexplained discrepancy between Perez’ assertion
that this purported “immediate discharge” rule was imple-
mented by Calderón in September 1995, and de la Torres’ as-
sertion that the “immediate discharge” rule and “no helper”
policy were in effect during his entire tenure as sales supervi-
sor, which, according to the latter, began sometime in 1993,
e.g., some 2 years before Perez claims it was first instituted by
Calderón. Rojas, it should be noted, did not explain how long
the “immediate discharge” rule had been in effect, and stated
only that the “no helper” policy had been in place prior to 1995,
and that the Respondent simply began adhering to it more
forcefully sometime in 1995. These inconsistencies and/or
ambiguities in Perez’, de la Torre’s, and Rojas’ testimony re-
garding the “no helper” policy and “immediate discharge” rule,
as stated, were not explained by the Respondent, thereby un-
dermining its assertion that Calderón announced and put into
effect an “immediate discharge” policy in September 1995.
Further undermining its claim in this regard is the absence
of any explanation as to why, if de la Torre and Rojas were, as
they claim, sales supervisors in September 1995, when Perez
instructed all sales supervisors to notify their employees of the
“no helper” policy and of the “immediate discharge” rule, and
to report back to him in writing that they had done so, there are
no memos from either de la Torre or Rojas among the other
sales supervisors’ memos contained in Respondent’s Exhibit
22. Presumably, as sales supervisors during the period in ques-
tion, both de la Torre and Rojas would have received, and been
expected to comply with, Perez’ instructions. That no such
memos were produced by the Respondent for de la Torre and
Rojas could mean that the latter either (1) were not sales super-
visors in September 1995, as they claimed to be, and simply
misrepresented themselves as such in their testimony; (2) were
supervisors but failed, for whatever reason, to comply with
Perez’ instructions; or (3) they did comply with Perez’ instruc-
tions but, for reasons unknown, their memos were not included
by the Respondent among those received into evidence as Re-
spondent’s Exhibit 22.20 Clearly, it was incumbent on the Re-

20 If de la Torre and Rojas were not sales supervisors in September
1995, then their claim that they were is misleading, rendering suspect
spondent, as the party having exclusive control over the super-
visors and/or their work-related documents, to clarify or explain
these ambiguities or inconsistencies. Its failure to do so thus
casts a cloud over the reliability and trustworthiness of de la
Torre’s and Rojas’ assertions regarding the “no helper” policy
and “immediate discharge” rule.
The fact that Vega was not disciplined for his 1996 violation
of the policy, and that the various supervisors’ memos received
into evidence as Respondent’s Exhibit 22 make no mention of
any such rule, or at most reflect that employees were told only
that they could be subject to some lesser form of punishment,
e.g., a warning or suspension, for violating the “no helper”
policy, further serves to undermine the Respondent’s claim that
it has, at least since September 1995, applied and enforced a
“one strike, you’re out” rule for such violations.21 I find it in-
conceivable that if, as claimed by Perez, he specifically in-
structed his sales supervisors to notify their salespersons of the
“one strike, you’re out” rule, the supervisors would have inten-
tionally ignored his instructions and chosen instead to tell em-
ployees that some lesser form of punishment might result from
a violation of the “no helper” policy. Rather, I am convinced
that either no such rule was put into effect by Calderón in late
1995, or, if it was, the supervisors were never instructed to
convey such a message to their employees. The former sce-
nario, however, makes imminent more sense to me, for if Cal-
derón had indeed established a “one strike, you’re out” rule for
violations of the “no helper” policy with instructions to notify
all salespersons of its implementation, Perez undoubtedly
would have conveyed that information to the supervisors with

their further testimony regarding the “no helper” and “immediate dis-
charge” policies. If they indeed were sales supervisors, it is highly
unlikely they would have deliberately ignored Perez’ instructions.
However, if they did carry out Perez’ instructions then, like the other
sales supervisors, they would have prepared a memo confirming what
they said to employees regarding the “no helper” policy.
21 The Respondent, on brief (p. 24 fn. 4), concedes that the wording
of some of the supervisory memos “left open the possible interpreta-
tion” that employees might first be given a warning, rather than imme-
diately terminated, for a violation of the “no helper” policy. The Re-
spondent insists, however, that employees could reasonably have un-
derstood from certain language in the memos, e.g., that the practice of
using helpers was absolutely or expressly forbidden, that supervisors
could take disciplinary action to abolish the practice, and that employ-
ees could lose their jobs for continuing the practice, that a “one strike,
you’re out” rule was being put into effect. While I have no doubt that
employees would have understood from their supervisor’s memo that
the Respondent was no longer willing to tolerate abuses of its “no
helper” policy, nothing in the wording of those memos suggests that the
Respondent was imposing an “immediate discharge” or a “one strike,
you’re out” rule for violations of the policy. Rather, the memos, as
noted, make reference only to warnings or suspensions for violations of
the policy which, in my view, would reasonably have led employees to
believe that they could receive a warning, or at worst, a suspension, for
future violations of the policy. Any ambiguity as to what message the
supervisors were instructed, or intended, to convey to employees in
their memos could easily have been resolved by having the supervisors
testify as to what they said to their employees. However, except for
Ortega and Rivera, none of the sales supervisors whose memos form
part of RX–22 were called to testify. As to Ortega and Rivera, neither
was questioned about the substance of their memos.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD704
instructions to disseminate it to their salespersons, and the su-
pervisors would in turn have done so and reported the same to
Perez. That the supervisors’ memos do not so much as hint at a
“one strike, you’re out” rule for violations of the “no helper”
policy leads me to conclude that no such rule was ever created
or put into effect by Calderón.
Nor, as argued by the Respondent, does the dismissal of
employees Andres Vazquez Rosa (Vazquez) in November
1997, Edwin Gonzalez Vivas (Gonzalez) in January 1998, and
Carlos Medina Huertas (Medina) in September 1999, for violat-
ing the “no helper” policy warrant a different conclusion, for
while documentary evidence does indeed show that these three
individuals were terminated for violating the “no helper” policy
(see RXs 11–13), said documents do not reveal whether this
was the first, or subsequent, violation of the “no helper” policy
committed by these employees.22 In fact, at no time during the
hearing did the Respondent contend that any or all of these
three employees were terminated pursuant to its alleged “one
strike, you’re out” rule. Rather, this particular claim is being
raised by the Respondent for the first time in its posttrial brief.
The claim that these three individuals were discharged under a
“one strike, you’re out” rule, nevertheless, lacks evidentiary
support and is rejected as without merit. In sum, I find no re-
cord evidence to support the Respondent’s claim that it has
long maintained and followed a “one strike, you’re out” rule for
violations of the “no helper” policy.23
Turning to Torres’ discharge, the facts show that on April
26, 2003, Torres was in his company van servicing his route.
As he waited for a red light to change, an individual, whom
Torres had seen on occasion but did not personally know,
boarded the van and asked for a ride to the next traffic light
about a mile down the road. Torres testified that the individ-
ual’s sudden appearance in his vehicle startled him, and that he
told the individual several times to get off because nonemploy-
ees were not allowed to ride in the vehicle. The individual, he
contends, persisted in asking for a ride to the next traffic light
and, after the traffic light changed and the cars behind began
honking their horns, Torres relented and drove the individual to
the next light where he disembarked. (Tr. 175–176.) As to
why he did not remove the individual from his vehicle, Torres
explained that the individual “was very insistent, and I would

22 RXs–11 through –13, consisting of the personnel action forms
prepared on Vazquez, Gonzalez, and Medina in connection with their
terminations, were received into evidence without discussion by way of
a stipulation entered into between the Respondent and counsel for the
General Counsel. No testimonial or other evidence, however, was
produced as to the specific circumstances surrounding the dismissal of
these three individuals. Although questioned about the documents,
Perez never testified that these three individuals were terminated under
the so-called “one strike, you’re out” rule.
23 There was some vague testimony by Respondent’s area 1 man-
ager, Rafael Sanchez, regarding the termination of some two or three
individuals for allowing nonemployee passengers in their company
vehicles. Sanchez, however, was unable to identify the individuals who
were terminated, or when the terminations occurred. Nor is there any-
thing in his testimony to indicate whether these individuals had previ-
ously engaged in similar conduct or whether they were discharged for a
first time violation of the “no helper” policy. Sanchez’ testimony is too
vague and ambiguous to be reliable. (Tr. 898.)
have had to struggle with the person,” and that, in his view,
taking the individual to the next light would have resolved the
problem faster (Tr. 177).
After dropping off the passenger, Torres continued on his
way and, at the third light following the dropoff point, Perez
pulled up alongside the van and asked Torres about the passen-
ger he had just dropped off. Before he could respond, Perez,
according to Torres, cut him off and remarked, “You know that
nobody can ride in there.” Perez departed soon after making
his comment to Torres. Perez’ version is that while driving
near the Plaza Caribe Mall in the town of Vega Alta, he spotted
Torres in the Company van and observed an individual inside.
He admits he never the saw the individual get into or out of
Torres’ vehicle. (Tr. 611, 679.) He claims that at some point,
he questioned Torres as to why the individual was in his vehi-
cle, and Torres replied that the individual had gotten into and
remained in the van despite being asked to step down. (Tr.
680.) There is no evidence to suggest, nor does the Respondent
contend, that Torres had engaged in similar conduct in the past.
On returning to Respondent’s facility after completing his
route, Torres was approached by Serrano and asked what had
occurred with Perez that day, explaining that he had received a
call, presumably from Perez, which he did not fully understand.
After Torres explained to Serrano what had occurred with the
unauthorized passenger, Serrano asked Torres to provide Perez
with a written statement regarding the incident. (Tr. 180.) Tor-
res did in fact prepare a written statement and delivered it to
Serrano. The following day, as he was preparing to go on his
route, B. Torres approached and asked Torres to meet with him.
A meeting was thereafter held in Serrano’s office at which
Torres, B. Torres, and Serrano were present. B. Torres began
the meeting by telling Torres, somewhat nervously, that he no
longer wanted Torres in his division, at which point Serrano
interrupted and told Torres that the Respondent in fact no
longer wanted him in its employ. (Tr. 181.) B. Torres then
chimed in that he did not want to beat around the bush, and that
Torres was being suspended without “wages and employment.”
When Serrano instructed Torres to turn in his medical plan
card, his family medical plan card, and his ID card, Torres
asked if he was being terminated or only suspended, because he
saw no need to turn in his medical and ID cards if he was only
being suspended. Serrano responded that he was simply com-
plying with company policy. Serrano then told Torres to report
to the company lobby on May 1, 2003. Neither B. Torres nor,
as previously noted, Serrano testified in this proceeding. Ac-
cordingly, Torres’ unrefuted account of what occurred and was
said to him by Serrano following the completion of his route on
April 26, and by Serrano and B. Torres at the meeting the day
after, is credited.
As instructed, on May 1, Torres appeared at the company
lobby, accompanied by Union Representative Edwin Rivera,
and asked to speak with human resources director, Nelson
Velez. After a wait of some 20 minutes, Respondent’s area 1
manager, Rafael Sanchez Rivera (Sanchez), appeared and told
Torres that Velez was at a meeting and would not be available.
Torres then asked to speak with Serrano but was told that
Serrano was also unavailable. Sanchez told Torres that he
could speak with him in place of Serrano, but that the Rivera
HOLSUM DE PUERTO RICO, INC. 705
was not allowed to enter. When Torres stated that Rivera was
representing him, Sanchez told Torres that since he was the
employee involved, he would have to meet alone with Sanchez.
Torres accepted and was led to an office where sales supervi-
sor, Modesto Crespo, was present. Once inside, Sanchez told
Torres that the Respondent had decided to dismiss him, and
instructed him to turn in his various insurance and ID cards.
Torres replied that he had already turned in his cards and then
asked for a dismissal letter stating why he was being dis-
charged. Sanchez replied that he had no dismissal letter to give
him, at which point Crespo interjected that there was a possibil-
ity that Torres could resign and thereby not lose his rights.
When he asked what rights Crespo was referring to, Sanchez
stated, “Well, that’s all,” and escorted Torres back to the lobby.
The above description of events is based on Torres’ undisputed
account, for while both Sanchez and Crespo testified at the
hearing on other matters, neither was asked to confirm or deny
Torres’ testimony in this regard. (Tr. 942–954.) Torres’ ac-
count is therefore credited and accepted as true.
As to Santiago, he was fired on May 29, 2003, allegedly for
taking approximately six cups of coffee from a company-
owned dispensing machine and distributing them to several
individuals outside the Company’s premises without prior au-
thorization which, the Respondent contends, violated company
policy.24 Perez explained that the coffee machine was provided
by the Company for the sole use of its employees, but that cof-
fee could be distributed to nonemployees provided it is first
authorized by a supervisor or other management personnel. He
contends that specific permission was needed each and every
time a nonemployee on company premises sought to obtain
coffee even though such permission may have been granted on
prior occasions. However, nothing in his testimony, or for that
matter elsewhere in the record suggests that employees were
ever told or made aware of this alleged need for prior approval
before employees could give coffee to a nonemployee on or off
company premises. Perez, in fact, admitted that the Respon-
dent, as previously noted, does not have any written policy
regarding the use of the coffee machine, or any limitation on
the number of cups of coffee an employee can take from the
machine, but does have a policy regarding the Company’s ac-
tual products and property. (Tr. 672.) He did not, however,
describe or explain what the policy entailed.
Santiago gave the following account of the events leading
up to his termination. On May 24, 2003, as he was preparing
his truck for deliveries, Torres, who, as discussed below, was
unlawfully terminated several weeks earlier for his union ac-
tivities, called Santiago’s cell phone and asked the latter if he

24 The Respondent does not have a specific policy governing em-
ployee use of the coffee machine. It contends, however, that the ban on
employee distribution of coffee to nonemployees without prior authori-
zation is governed by a general provision in its “Standards of Conduct”
handbook (see GCX–6), a copy of which Santiago recalls receiving in
1990 when he began working for the Respondent. The provision in
question, found on p. 5 of the handbook, reads as follows:
No one can take or use, even if it is momentarily, anything that be-
longs to the Company, to other employees, and to our clients and ac-
quaintances, without the explicit consent of the authorized manage-
ment personnel.
could bring coffee out to some former employees and union
organizers and/or representatives who were outside the facility
distributing union literature.25 Santiago agreed to bring some
coffee out to Torres and the others. After loading his truck,
Santiago went to the coffee machine and obtained some six
cups of coffee. After dispensing the coffee, he laid the coffee
on some steps and headed to the cafeteria nearby to get some
sugar and/or sugar substitute. On his way to the cafeteria,
Santiago ran into Crespo and asked the latter if he had some
“Equal,” an artificial sweetener. Crespo handed him a packet
of Equal at which time Santiago went to the sales room, re-
trieved his coffees, and headed to the shipping area where he
got into his truck, and exited the Respondent’s grounds. Once
outside the facility, Santiago handed the coffees to Torres and
proceeded to service his route.
Crespo testified that he witnessed Santiago at around 6 a.m.
on May 24, 2003, getting the six cups of coffee from the coffee
machine and that, soon thereafter, Santiago approached and
asked him for a packet of “Equal.” After handing Santiago the
“Equal,” Crespo claims he headed towards the dispatch area
and at some point observed Santiago come down the stairway
with the six coffees, get into his company vehicle, and drive
outside the Company’s premises where he distributed the cof-
fees to individuals standing there. Crespo was unable to iden-
tify the individuals to whom Santiago gave the cups of coffee.
Thus, he could not say for sure whether they were or were not
employees of Holsum. Nevertheless, viewing Santiago’s con-
duct as inappropriate, Crespo prepared a report of the incident
that same morning and delivered it to his superior, Perez. (See
RX–34.) In his report, Crespo informed Perez that he initially
believed that Santiago was taking the coffee to fellow employ-
ees in the shipping area, and was surprised to see Santiago get
into his Company vehicle and give the coffees “to some people
outside the Company who weren’t our employees.” Crespo’s
assertion in Respondent’s Exhibit 34, that the persons to whom
Santiago gave the coffees were not company employees, is
inconsistent with the uncertainty he expressed at the hearing as
to whether the individuals who received the coffees from Santi-
ago were employees or nonemployees. Crespo insisted that he
spoke to no one before preparing his report. (Tr. 946.)
Crespo conceded that the coffee from the coffee-dispensing
machine was free under company policy. (Tr. 948.) Asked to
explain what was improper about Santiago’s conduct, Crespo
stated that it was Santiago’s distribution of coffee off company
premises, not who the recipients were, that rendered the con-
duct inappropriate. According to Crespo, therefore, even if
Santiago had been delivering the coffees to employees, the
conduct would be improper if the delivery of the coffees hap-
pened to take place off company premises. He contends that
the Respondent maintains a written rule prohibiting the removal

25 In addition to Torres, Santiago identified former employees
Ramon Maisonette, and Carlos Martinez as being with Torres when he
delivered the coffees. Both Maisonette and Martinez had been dis-
missed by the Respondent, according to Santiago. Also present with
Torres, Martinez, and Maisonette were the Union’s international repre-
sentative, Edwin Rivera, and union organizer, Carlos Davila (Tr. 402–
403).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD706
of coffee or “anything . . . outside Company premises.”26
However, Crespo, who has been in Respondent’s employ for 28
years and a sales supervisor for 20 years, made no mention in
his testimony of the requirement cited by Perez that employees
must obtain permission from a supervisor or manager before
giving coffee to a nonemployee.
Asked why he did not prevent Santiago from leaving the
Company’s premises with the six coffees, Crespo explained
that he was busy at the time working with another group of
individuals, and that, after observing Santiago with the coffees,
the latter left in a matter of seconds giving him no time to ques-
tion Santiago about the coffees. His explanation in this regard
is somewhat at odds with the written report he prepared for
Perez wherein he stated that he believed Santiago was taking
the coffees to other fellow employees who were in the shipping
area. Crespo never claimed in his report that he was unable
stop Santiago because he was too busy with other employees,
and because Santiago was gone before Crespo could question
him about the coffees.
On May 29, 2003, some 5 days after the coffee incident,
Santiago was returning to the facility after completing his route
when he was summoned to a meeting with Area I Sales Man-
ager Sanchez and J. P. Velez, Santiago’s immediate supervisor.
At this meeting, J. P. Velez, according to Santiago, informed
him that a situation had arisen concerning Santiago’s distribu-
tion of coffee to people who were not employed by the Re-
spondent and who were outside distributing union propaganda
against the Company (Tr. 382–383). Santiago did not deny
doing so, at which point Sanchez interjected that Santiago
would have to prepare a written report of the incident. Santiago
stated he did not feel comfortable preparing the report in the
office where the meeting was being held, and Sanchez replied
that Santiago could prepare his report elsewhere. Santiago then
went to a nearby desk to prepare his report, but after thinking it
over, decided not to write anything.
On returning to J. P. Velez’ office, Santiago notified the lat-
ter that he was not going to submit a report because the coffees
he handed out had been paid for (Tr. 388).27 As Santiago
turned to leave, Sanchez tells him to stay because he had some-
thing to say to Santiago. Sanchez then instructed J. P. Velez to
close the door, at which point Santiago requested to have
someone with him as a witness if Sanchez planned on closing
the door. Sanchez purportedly responded that Santiago did not
need a witness because what he was about to say would not

26 Crespo did not explain what particular rule he was referring to. I
find it unlikely that he was referring to the rule found on p. 5 of the
Company’s “Standards of Conduct” handbook (discussed in fn. 25,
supra), as nothing in that rule makes reference to the removal of items
off company premises.
27 Regarding his comment that the coffee had been paid for, Santiago
explained that he was referring to the fact that he had, on occasion, seen
nonemployees obtaining coffee from the coffee machine, and had,
sometime between December 2002 and January 2003, overheard Perez
and Serrano remark that the coffee machine “was paid for by the em-
ployees, and that all employees were able to make use of it.” The man-
ager and Serrano, according to Santiago, were “referring to people who
did not belong to the Company and who were making use of it.” (Tr.
389).
take long. Sanchez then told Santiago that the Company “had
become tired of going around this issue, of going in circles
around this issue,” and notified Santiago that he was being
terminated. According to Santiago, at no time did Sanchez
explain what “issue” he was referring to.28 Santiago is then
instructed to turn in his health insurance and ID cards, and to
return any company uniforms he possessed so his final pay
could be processed. He is also told that all further communica-
tions he may want to have with the Company would have to go
through the personnel office. Sanchez then instructs J. P. Velez
to escort Santiago to the parking lot.
Sanchez’ testimony regarding Santiago’s discharge is as fol-
lows. At some point prior to meeting with Santiago on May 29,
2003, Crespo purportedly notified Sanchez that he had seen
Santiago “during the morning hours” take six or seven cups of
coffee to persons standing around outside the Respondent’s
property. (Tr. 900). On cross-examination, Sanchez stated that
Crespo described the persons to whom the coffees were given
as “union people.” Based on Crespo’s report, Sanchez, to-
gether with J. P. Velez, met with Santiago around 2 p.m. on
May 29, 2003. Sanchez claims that at this meeting, he asked
Santiago why he had taken coffees to people outside company
premises who were not employees or affiliated with the Com-
pany. When Santiago asked how Sanchez knew what he had
done, the latter replied that Crespo had seen him remove “that
Company property to give it to people who were unrelated to
the Company.” Santiago purportedly told Sanchez that the
individuals he gave the coffees to were friends of his who had
called and asked him to bring them coffee, and that he did so
without seeking authorization because he did not believe it
would cause him any problem.
Sanchez then asked Santiago to give him his version in writ-
ing, and handed Santiago a pencil and notebook to prepare his
report. He recalls that after leaving the office to go write out
his statement, Santiago returned a few minutes later and stated
he was not going to write the report because he had purchased
the coffees at the company cafeteria. Sanchez purportedly
responded that, in a matter of only 8 to 10 minutes, Santiago
had already changed his story of what occurred, and then in-
formed Santiago that he was being discharged immediately for
“removing Company property and giving it to persons who
were unrelated to the Company.” (Tr. 891.) A personnel action
form dated “5/29/03” and signed by Sanchez, J. P. Velez,
Velez, and Perez shows the reason for Santiago’s discharge to
be his “removing of Company property without authorization.”

28 On brief (p. 36 fn. 6), the Respondent states that the comment at-
tributed to Sanchez by Santiago, to wit, that Sanchez was “tired of
going in circles around this issue,” was an “obvious” reference to the
fact that Sanchez was getting tired of Santiago’s changing story regard-
ing the coffees. The Respondent’s attempt to explain what Sanchez
meant by this remark is, I find, an implicit admission that Sanchez in
fact made the remark attributed to him by Santiago. However, its prof-
fered explanation for what Sanchez meant by his “issue” remark is pure
speculation, for while Sanchez testified in this proceeding (and inciden-
tally did not deny making the remark), he was never asked to explain
what “issue” he was referring to when he made the remark. Santiago,
as noted, testified that he never received any explanation or clarifica-
tion from Sanchez as to what “issue” he, Sanchez, was referring to.
HOLSUM DE PUERTO RICO, INC. 707
(GCX–8.) The personnel action form, it should be noted, does
not include as a reason for the discharge the assertion made by
Sanchez at the hearing that the discharge was also prompted by
the fact that Santiago gave the coffees to persons “unrelated to
the Company.” (See GCX–8.) After asking Santiago to turn in
his health insurance card, company ID card, and uniform, San-
chez had Santiago escorted off the premises. According to
Sanchez, J. P Velez was in the office during the entire conver-
sation with Santiago. J. P. Velez, as stated, did not testify.
Inconsistencies in Sanchez’ and Crespo’s accounts cast
doubt on the reliability of their version of events. For example,
Sanchez’ testimony regarding his meeting with Crespo does not
square with the latter’s account for, at the hearing, Crespo, as
noted, testified that he did not know the identities of the indi-
viduals to whom Santiago gave the coffees, and that he had not
discussed Santiago’s conduct with anyone before preparing and
delivering his report on Santiago to Perez. Nor did Crespo
make any mention in his testimony of speaking with Sanchez,
or with anyone else for that matter, about Santiago’s conduct at
any time after he gave Perez his report.
Further casting doubt on the reliability of Sanchez’ account
is his description of when this conversation with Crespo alleg-
edly took place. Crespo, as noted, testified, as did Santiago,
that the coffee incident occurred on the morning of May 24,
2003. In his testimony, however, Sanchez, while not expressly
stating that the coffee incident occurred on May 29, 2003, im-
plicitly suggested as much. Thus, in describing on cross-
examination what caused him meet with Santiago on May 29,
2003, Sanchez cited the fact that Crespo had told him how
“Santiago removed the coffee that Mr. Crespo thought was . . .
for the people who were loading up the truck that morning,” the
latter a clear reference to the morning of May 29, 2003. When
asked again on cross-examination just when he was told by
Crespo of the incident, Sanchez was unsure of himself, stating,
“I don’t remember if it was that day during the afternoon or the
following day, I don’t remember.” (Tr. 906.) Yet, in a subse-
quent June 6, 2003, memo to H. R. Director Velez notifying
him of the incident, Sanchez suggests that Crespo had reported
the coffee incident to him just “minutes” before he, Sanchez,
met with Santiago on May 29, 2003.29 (See RX–30.) Crespo,
as previously pointed out, made no mention in his testimony of
any such discussion with Sanchez regarding this incident.
Nevertheless, I am convinced that Crespo, at some point before
Sanchez’ May 29, 2003 meeting with Santiago, informed San-
chez that he had seen Santiago handing out coffee to “union
people” who were outside the facility distributing union litera-
ture. My finding in this regard is based on Santiago’s undis-
puted claim that he was asked by J. P. Velez at the May 29,
2003 meeting why he had given out coffees to individuals who
were distributing union literature, as well as Sanchez’ admis-
sion that Crespo described these individuals to him as “union
people.”

29 Thus, in his June 6, 2003 memo, Sanchez informed Velez that
Santiago’s version of the coffee incident “contradicted the version
given minutes previously by the witness.” The only witness identified
by Sanchez in his testimony was Crespo.
Sanchez was also inconsistent in describing who it was that
questioned Santiago about the coffees during the May 29, meet-
ing. Thus, while on direct examination, Sanchez testified it was
he who asked Santiago about the six cups of coffee, in a June 6,
2003 letter to Velez advising the latter of Santiago’s dismissal,
Sanchez stated that it was J. P. Velez, not he, who first ques-
tioned Santiago about his conduct. Yet, when asked on cross-
examination whether it was J. P. Velez who had questioned
Santiago about the coffees, Sanchez ambiguously replied, “Yes,
[J. P. Velez] started asking him and then I proceeded.” (Tr.
903.) I find, as testified to by Santiago, and as stated by San-
chez in his letter to H. R. Director Velez, that it was J. P. Velez
who questioned Santiago about the coffee incident.
There is, in any event, no disputing that Sanchez, along with
J. P. Velez, met with Santiago in Sanchez’ office sometime
after 2 p.m. on May 29, 2003, to discuss the coffee incident, for
Santiago testified to attending such a meeting. Several days
after the meeting, Sanchez prepared a report on the coffee inci-
dent for H. R. Director Velez and advised the latter that he had
terminated Santiago “for disposing and giving away Company
property.” (RX–30.) Sanchez in his report did not mention
Santiago’s distribution of coffee to persons “unrelated to the
Company” as a factor in the decision to terminate Santiago,
despite citing it in his testimony as a reason for the discharge.
As to the report itself, Sanchez initially testified on direct ex-
amination that he prepared it on his own initiative and had not
been asked or requested by anyone to do so. However, in yet
another demonstration of his inconsistent testimony, Sanchez
changed his tune on cross-examination and admitted that the
personnel office required that a report be prepared when such
incidents occur, and that Velez had, in fact, asked him for a
report of the incident. (Tr. 893; 907.) Sanchez claims that in
his 25 years with the Company, he has never had an incident
occur where an individual took coffee from the Company and
delivered it to nonemployees who were off company property.
He further testified that at no time had he, or any other manager
or supervisor in his presence, advised employees that they
could take coffee from the coffee machine and distribute it to
anyone outside of the facility. By the same token, however,
Sanchez never claimed that he or any other supervisor or man-
agement personnel had ever told employees that they were
forbidden from doing so, or that they would need supervisory
permission before doing so.
Santiago testified that his distribution of coffee to nonem-
ployees was neither improper nor unusual because he had per-
sonally observed nonemployee contractors who did business
with the Respondent getting free coffee from the coffee ma-
chine during their visits to the Respondent’s facility, and seen
Respondent’s own shipping department employees giving cof-
fee to nonemployees. He admits, however, that those nonem-
ployees he observed getting coffee did so while on company
premises, while the coffees he distributed to Torres and others
occurred off company premises. Nevertheless, he testified that,
to his knowledge, the Respondent has no rule prohibiting the
distribution of coffee to nonemployees, or regarding the use of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD708
the coffee-dispensing machine. (Tr. 399; 403.)30 Torres simi-
larly testified to seeing nonemployees who did business with
the Respondent get coffee from the Respondent’s coffee ma-
chine, and that, to his knowledge, there were no rules limiting
the amount of coffee an individual could get from the coffee
machine, or as to who could use the machine. (Tr. 189.)
I credit Santiago over Sanchez as to what was said at the
May 29, 2003 meeting. Thus, I find that it was J. P. Velez, not
Sanchez, who questioned Santiago about the coffees he gave to
union supporters outside the facility 5 days earlier. Sanchez so
stated in his June 6, 2003 memo to Velez regarding the inci-
dent, and further admitted as much, albeit somewhat ambigu-
ously, on cross-examination. As already discussed, I further
find that, as testified to by Santiago, J. P. Velez indeed asked
Santiago why he had given coffees to nonemployees who were
handing out union literature against the Company. J. P. Velez,
as noted, was not called to either corroborate Sanchez’ account
or to refute Santiago’s version of what transpired at the May
29, 2003 meeting. A party’s failure to call a witness who may
reasonably be assumed to be favorably disposed to the party
justifies an adverse inference as to any factual question on
which the witness is likely to have knowledge. Woodlands
Health Center, 325 NLRB 351, 361 (1998). Such an inference
is fully warranted here with respect to what J. P. Velez may
have said to Santiago. I note in this regard that while Sanchez
did provide an account of what he, Sanchez, said and did at that
meeting, the latter never described what J. P. Velez asked or
said to Santiago at that meeting. Santiago’s account of what J.
P. Velez said to him is, therefore, undisputed and credited.
I also credit Santiago’s assertion that Sanchez told him he
was tired of going around this “issue” without clarifying or
explaining what issue he was referring to. Although Sanchez
claims to have told Santiago during their meeting that the latter
had changed his version of the coffee incident in a matter of 8
to 10 minutes, Sanchez was never asked to confirm or deny
Santiago’s claim that he, Sanchez, also made the “tired of going
around this issue” remark. Further, as previously explained, the
Respondent’s attempt, on brief, to explain what Sanchez meant
by his “going around the issue” is tantamount to an admission
that Sanchez indeed made the “issue” remark attributed to him
by Santiago. Accordingly, I find that Sanchez never actually
informed Santiago that he was being dismissed “for removing

30 The Respondent grossly mischaracterizes Santiago’s testimony by
claiming, on brief, that Santiago testified that “outsiders” or nonem-
ployees who enter the Company’s premises for business-related pur-
poses and who obtain free coffee from the coffee machine “must have
some type of authorization.” Santiago’s assertion that “some type of
authorization” was needed by such “outsiders” was in response to a
question by the Respondent’s counsel on whether said outsiders needed
permission to come onto company premises, not to whether they
needed authorization to obtain coffee from Respondent’s coffee ma-
chine. (See Tr. 497.) Nor am I persuaded by the Respondent’s further
assertion, at p. 40 fn. 7 of its brief, that Santiago’s remark to Torres,
that he “was going to see if I could bring [the coffees] out,” constituted
an implicit admission by Santiago as to the impropriety of his conduct.
While Santiago was not asked to explain what he meant by this latter
remark to Torres, Santiago might very well have been referring to how
he was going to handle the physical task of toting the six cups of coffee
to Torres and the others.
Company property and giving it to people who were unrelated
to the Company.” Rather, Santiago’s credited version makes
clear that during this meeting, J. P. Velez simply asked Santi-
ago why he had distributed coffee to nonemployees who were
distributing union literature against the Company, that Santiago
readily admitted doing so, and that after declining to prepare a
written statement regarding the incident, Sanchez notified
Santiago that he was tired of going around this “issue” and
terminated him without any clear explanation.
Finally, I find, as testified to by Santiago and Torres, and as
admitted by Perez, that the Respondent does not have any writ-
ten rule or policy governing the use of the coffee machine, or
any restriction on how much coffee employees are allowed to
take. Nor does there appear to be a prohibition on employees
getting coffee from the coffee machine to give to other employ-
ees. In this regard, Crespo’s assertion that he believed Santiago
was taking the cups of coffee to fellow employees, and pre-
sumably did not stop him for this reason, makes patently clear
that no such prohibition exists. As to whether the Respondent
had any such prohibition on the distribution of coffee to non-
employees, the only evidence that such a restriction existed
came from Perez, who testified that supervisory or managerial
approval was required before an employee could provide non-
employees with coffee from the Respondent’s coffee machine.
However, neither Sanchez, who discharged Santiago, nor Cre-
spo, who witnessed Santiago’s coffee incident, testified to the
existence of any such restriction. In fact, Perez’ acknowledge-
ment that the Respondent had no rules, written or otherwise,
regarding the use of the coffee machine leads me to conclude
that no written rule prohibiting the giving of coffee to nonem-
ployees exists. Clearly, had such a rule existed, the Respondent
undoubtedly would have produced it. Further, even if I were to
believe Perez’ assertion in this regard, no evidence was pro-
duced to show that employees were ever told or made aware of
this restriction.
C. Discussion
1. The 8(a)(1) allegations
a. The July 2002 Cruz-DeJesus incidents
The complaint alleges, and counsel for the General Counsel
contends, that the Respondent created an unlawful impression
of surveillance when, on July 25, 2002, the day after the first
employee meeting, DeJesus told Cruz he knew all about the
meeting, and warned him to “be careful” because he “knew
how the [Respondent] worked,” and when, on July 31, 2002,
the day after the second employee meeting, DeJesus called
Cruz at home and questioned him about what had been dis-
cussed at, and who had attended, the meeting. While denying
the above allegation in its answer, the Respondent on brief has
offered no defense to the allegation and, as noted, did not call
DeJesus as a witness to refute Cruz’ claim of what the former
told him on July 25 and 31, 2002. “The test for determining
whether an employer engages in unlawful surveillance, or
unlawfully creates the impression of surveillance, is an objec-
tive one and involves the determination of whether the em-
ployer's conduct, under the circumstances, was such as would
tend to interfere with, restrain or coerce employees in the exer-
HOLSUM DE PUERTO RICO, INC. 709
cise of the rights guaranteed under Section 7 of the Act.”
Martech Medical Products, 331 NLRB 487, 500 (2000); Par-
sippany Hotel Management Co., 319 NLRB 114, 125 (1995).
Cruz’ attendance at the July 24 and 30 meetings, and the
meetings themselves, clearly were protected activity under
Section 7 of the Act as the purpose of the meetings was to dis-
cuss concerns employees had regarding their wages and other
terms and conditions of employment, and the means by which
said employee concerns should be presented to the Respondent.
As to DeJesus’ comments to Cruz expressing knowledge of
both meetings, there is no indication from Cruz’ credited ac-
count that DeJesus ever explained to Cruz how he learned of
the meetings. DeJesus, as noted, was not called to either refute
Cruz’ claim or explain how he learned of the meetings. In the
absence of any explanation having been provided to Cruz, the
latter reasonably could have believed that the Respondent was
spying on, and was fully aware of, his and other employees’
organizational activities, and, given DeJesus’ warning to Cruz
“to be careful,” that his continued involvement in organiza-
tional activities could have adverse consequences for him. By
creating the impression, through DeJesus’ remarks to Cruz on
July 25 and 31, 2002, that its employees’ organizational activi-
ties were being kept under surveillance, and by warning him
that unspecified adverse consequences might result from engag-
ing in such protected activity, the Respondent, I find, effec-
tively interfered with, restrained, and coerced Cruz in the exer-
cise of his Section 7 rights, and violated Section 8(a)(1) of the
Act. Seton Co., 332 NLRB 979, 981 (2000).
I further find that, in addition to creating an impression of
surveillance, DeJesus’ July 31, 2002 questioning of Cruz as to
who had attended the employee meeting the night before and
what was discussed amounted to an unlawful interrogation. In
determining whether the questioning of an employee amounts
to an unlawful interrogation, the Board applies a totality-of-the-
circumstances test. Rossmore House 269 NLRB 1176 (1984);
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).31 By ask-
ing Cruz to identify who had attended the meeting, DeJesus
was, in effect, seeking to elicit information about the protected
activities of other employees, conduct which has long been
found to violate Section 8(a)(1) of the Act. Observer & Eccen-
tric Newspapers, Inc., 340 NLRB 124 (2003); La Gloria Oil &
Gas Co., 337 NLRB 1120, 1123 (2002); Sumo Airlines, 317
NLRB 383 (1995); Cumberland Farms, 307 NLRB 1479
(1992). Nothing in Cruz’ credited description of what DeJesus
said to him during their brief July 31, 2002 phone conversation
suggests that the latter ever explained to Cruz why he was seek-
ing or needed the information on the identity of employees in
attendance or regarding the substance of what was discussed.
This questioning of Cruz by his immediate supervisor, coming
as it did just one week after DeJesus revealed that Cruz’ and
other employees’ activities were being kept under surveillance

31 Among the factors considered by the Board in applying the “total-
ity of circumstances” test are those set forth in Bourne v. NLRB, 332
F.2d 47 (2d Cir. 1964), commonly known as the “Bourne” factors.
They include (1) the background under which the questioning occurred,
(2) the nature of the information sought, (3) the identity of the ques-
tioner, (4) the place and method of interrogation, and (5) the truthful-
ness of the reply. Id. at 48.
and after Cruz was warned “to be careful,” was clearly coer-
cive. While DeJesus’ questioning of Cruz occurred in a phone
call made to the latter’s home, the latter’s refusal to provide
DeJesus with the information requested suggests that the ques-
tioning was not merely social or incidental. Further, there is no
evidence that Cruz was, at the time of DeJesus’ interrogation,
an open and active union supporter. See, e.g., La Gloria Oil &
Gas, supra. Considering all the circumstances surrounding the
July 31, 2002 incident, DeJesus’ interrogation of Cruz was
clearly coercive and unlawful, and violated Section 8(a)(1) of
the Act. See Rossmore House, 269 NLRB 1176 (1984).
b. The August 13, 2002 Santiago-Rojas conversation
Relying on Santiago’s testimony, counsel for the General
Counsel contends that on August 13, 2002, the Respondent,
through Rojas, unlawfully created an impression of surveillance
by informing Santiago that it had learned of the July meetings
from one of the salesmen who had been in attendance, and
further threatened Santiago with reprisals by stating that it had
Santiago in its sights. However, as previously discussed, I have
accepted Rojas’ version of events as true and, consequently,
find no merit to the above allegations. Accordingly, I shall
recommend that these allegations be dismissed.
c. The August 13, 2002 surveillance by Respondent agents
The complaint alleges that the Respondent, through hired
agents, Jorge Figueroa and E. Gonzales, engaged in unlawful
surveillance of employees by photographing and/or videotaping
them as they gathered near the Vega Alta Plaza on August 13,
2002, for a third employee meeting. As an initial matter, I
credit Santiago’s testimony that soon after arriving at the Vega
Alta town plaza for the employee meeting, he observed J. Fi-
gueroa and E. Gonzales videotaping and taking pictures of him
and other employees who were gathered there. Neither J. Fi-
gueroa nor E. Gonzales was called to refute his testimony in
this regard. Further, A. Figueroa’s testimony makes clear, and
the Respondent concedes as much on brief (RB:3), that these
individuals were there at the Respondent’s behest.32
The Respondent, as noted, contends that it hired Agents J.
Figueroa and E. Gonzalez to lawfully surveil employees gath-
ered for the August 13, 2002 meeting at the Vega Alta plaza for
the sole purpose of determining “if persons involved in stealing
merchandise from Holsum were present at the plaza.” The
Respondent’s argument, in my view, borders on the absurd and
is, I find, a pure fabrication. The Respondent, for example,
produced no evidence to show that it had been having a prob-
lem with theft of its merchandise by employees or other indi-
viduals. Nor did it identify the type of merchandise that was
allegedly being taken or who it suspected of engaging in such
conduct. Indeed, the Respondent never claimed to have had
any suspects in mind. There is likewise no indication that the
Respondent filed any report with the local police department

32 Although the Respondent, in its answer, denied that J. Figueroa or
E. Gonzales were its agents, on brief it admits that both were employed
by Los Angeles Guardianes, and that it had retained the latter firm to
investigate persons allegedly engaged in theft of company merchandise.
It further admits paying the firm for services conducted by the two at
Vega Alta on August 13, 2002.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD710
regarding these alleged thefts. If, as claimed by the Respon-
dent, it was having a problem with employee theft of merchan-
dise, one might reasonably expect the Respondent to have con-
ducted an internal investigation into the matter, or reported the
incident(s) to the local police. Other than A. Figueroa’s testi-
mony regarding the reason for the surveillance, no evidence,
such as internal documents or police reports, was produced by
the Respondent to show that it had been investigating or report-
ing to the police these alleged thefts at any time prior to August
13, 2002.
Figueroa, as noted, testified to being told by Joe Gonzalez
that the surveillance work was aimed at identifying individuals
who were allegedly engaged in stealing merchandise from the
Respondent, and the invoice he submitted to Respondent for the
work performed by Jorge Figueroa and E. Gonzalez describes
the work as such. I found his testimony in this regard uncon-
vincing. Rather, I am persuaded that either A. Figueroa was
intentionally lied to by Joe Gonzalez so as to disguise the lat-
ter’s true motivation for retaining A. Figueroa’s firm to conduct
the surveillance of Respondent’s employees, to wit, to identify
those employees taking part in the organizational activities, or
A. Figueroa and/or Joe Gonzalez concocted this explanation
after J. Figueroa and E. Gonzalez were caught in the act of
spying on employees’ protected activities. As stated above, the
Respondent produced no evidence to show that the theft of
merchandise by employees had been a problem at any time
before August 13, 2002. The one person who could have cor-
roborated A. Figueroa on why the surveillance was conducted,
or provided testimony or other evidence confirming that the
theft of merchandise by employees had become a serious prob-
lem at Holsum warranting the surveillance, was Joe Gonzalez.
Joe Gonzalez, however, was never called to testify, leading me
to believe that had he been called, Joe Gonzalez would not have
supported the Respondent’s explanation for the surveillance.
Further, as previously discussed, A. Figueroa, while claiming
that Joe Gonzalez told him why the surveillance was needed,
was not privy to the conversation the latter had with Jorge Fi-
gueroa, the one who actually performed the surveillance work.
Consequently, A. Figueroa could not have known what Joe
Gonzalez may have told J. Figueroa regarding the specific na-
ture of the surveillance work he was being asked to conduct.
Thus, that A. Figueroa may not have given J. Figueroa different
instructions from those which the former purportedly first re-
ceived from Joe Gonzalez does not establish that J. Figueroa
received the same instructions from Joe Gonzalez as to the
nature of the work he was to perform. Nor do I believe A. Fi-
gueroa’s claim that J. Figueroa aborted the August 13, 2002
surveillance of employees because the purported underlying
reason for conducting the surveillance, e.g., the theft of Com-
pany merchandise, “was not happening there.” Rather, the
record makes clear that the surveillance was not voluntarily
aborted, but rather was interrupted by the local police after J.
Figueroa and E. Gonzalez were spotted by employees videotap-
ing and taking pictures of them. I also find it unlikely that A.
Figueroa, who billed the Respondent $2000. for the surveil-
lance work, would not know what happened to the single pho-
tograph taken that day. I also find it difficult to believe that
given the amount of money paid by the Respondent for the
surveillance work, it would not have received the photo in
question or know of its whereabouts. In sum, I find that the
purpose behind the surveillance of employees conducted by the
Respondent’s agents, J. Figueroa and E. Gonzalez, on August
13, 2002, was to photograph and thus help the Respondent
identify which of its employees was taking part in the organiza-
tional drive. Accordingly, I find that the August 13, 2002 sur-
veillance was indeed coercive and a violation of Section 8(a)(1)
of the Act.
d. The September 2000 interrogation of Rodriguez
As noted, sometime in September 2002, Nieves asked Rod-
riguez if he had received a copy of Calderón’s letter, solicited
his views as to its contents, and, at one point during their dis-
cussion, also asked Rodriguez about his views on the meetings
held by employees. As previously described, company presi-
dent Calderón’s September 5, 2002 letter to employees con-
tained, among other things, statements expressing Calderón’s
strong opposition to unions. Nieves, as indicated, was not
called to refute or explain the comments attributed to him by
Rodriguez. Absent any legitimate explanation for Nieves’
questioning of Rodriguez, one can reasonably infer, as I do
here, that Nieves’ intent in questioning Rodriguez on how he
felt about Calderón’s letter, and about the employee meetings,
was to ascertain whether Rodriguez shared Calderón’s anti-
union views, or was a union sympathizer or supporter. Al-
though Rodriguez conveyed to Nieves that he was not partial to
unions, his query to Nieves on why the latter was asking him
such questions convinces me that Rodriguez was not comfort-
able with, and may indeed have felt somewhat intimidated by,
Nieves’ questions. Considering all the circumstances surround-
ing the questioning of Rodriguez, e.g., that it was conducted by
his immediate supervisor in the latter’s office, that no legiti-
mate reason was given for the interrogation, that Rodriguez
found the questioning troublesome, and that no evidence was
presented to show that Rodriguez was an active or known union
supporter when questioned by Nieves, I find that Nieves’ ques-
tioning of Rodriguez was indeed coercive and unlawful, and a
violation of Section 8(a)(1) of the Act.
e. The September 14, 2002 interrogation of Torres
Like the above questioning by Nieves of Rodriguez, on Sep-
tember 14, 2002, Supervisor B. Torres, as discussed above,
approached Torres as he was about to embark on his route and
questioned him on whether he received Calderón’s letter and
how he felt about it. Torres, like Rodriguez, declined to ex-
press any opinion about the letter for fear of compromising
himself. B. Torres, like Nieves, did not testify, leaving unex-
plained the motivation for the questioning. However, B. Tor-
res’ insistence that he needed to know how Torres felt about
Calderón’s letter convinces me that B. Torres was not simply
engaging in idle chitchat with Torres, but may instead have
been acting on directions from higher management, possibly
Calderón himself, to help identify which employees were or
were not union sympathizers. As with Nieves’ questioning of
Rodriguez, and for essentially the same reasons, I find that B.
Torres’ questioning of Torres on September 14, 2002, was co-
ercive. The interrogation of Torres, as noted, occurred without
HOLSUM DE PUERTO RICO, INC. 711
warning as Torres was about to begin his route, and was con-
ducted by his supervisor without any explanation as to its pur-
pose. Torres’ reluctance to tell B. Torres how he felt about
Calderón’s letter for fear of compromising himself reveals a
concern by Torres that such a disclosure might have adverse
consequences for him. There is no evidence to indicate that, at
the time of the questioning, Torres was known to be an open
and active union supporter. Considering all of the circum-
stances surrounding B. Torres’ September 14, 2002 questioning
of Torres, I find that said questioning amounted to an unlawful
interrogation, in violation of Section 8(a)(1) of the Act.
f. The September 16, 2002 interrogation of Santiago
On September 16, 2002, 2 days after the unlawful interroga-
tion of Torres, the Respondent, I find, engaged in a similar
unlawful interrogation of Santiago. As found above, on that
date, his immediate supervisor, Serrano, summoned Santiago to
his office cubicle, asked Santiago if he had received Calderón’s
letter, and then told Santiago to put in writing what he thought
of the letter. Serrano’s questioning of Santiago clearly was not
part of any casual conversation the two were having that day.
Rather, Santiago was summoned to Serrano’s office to discuss
some business-related matters after which Serrano changed the
subject to the Calderón letter by asking Santiago if he had re-
ceived a copy and what he thought of it. While Santiago, like
Torres, was responsible for organizing the July and August
employee meetings, there is no evidence that Santiago con-
ducted his organizational activities in the open or that, when
questioned by Serrano on September 16, 2002, Santiago was
known to be an open and active union adherent.33 As Serrano
did not testify, the reason for his questioning of Santiago is
unexplained. I am nevertheless convinced, given the unlawful
interrogation of employees Rodriguez and Torres just days
earlier, that Serrano’s interest in questioning Santiago on how
he felt about Calderón’s antiunion letter was part and parcel of
an overall plan by the Respondent to identify the union sup-
porters and sympathizers in its midst. When the circumstances
surrounding Serrano’s questioning of Santiago are viewed in
their totality, including the fact it was conducted by his supervi-
sor, Serrano, at the latter’s office, that it was unexpected and
not part of any casual or friendly conversation, that it occurred

33 As Santiago was among the group of employees gathered at the
Vega Alta town plaza when the Respondent’s agents unlawfully video-
taped and/or photographed their activities, one can reasonably assume
that the Respondent would have suspected from its surveillance that
Santiago was taking part in the employees’ organizational activities.
Although the evidence does make clear that Santiago indeed was one of
the principal organizers of such activity, there is no evidence that the
Respondent knew of the extent of his involvement in the organizational
drive. The Respondent admits as much when it asserts, on br. (p. 26),
that no evidence has been produced to show “that Holsum had specific
knowledge of Santiago’s participation, much less his purported ele-
vated role, in any of those activities.” While I disagree with the Re-
spondent’s former assertion, given its unlawful surveillance of the
August 13, 2002 employee gathering in Vega Alta at which Santiago
was present, I am inclined to agree, given the lack of evidence showing
otherwise, that the Respondent was unaware of the extent of Santiago’s
involvement in organizational activities when Serrano, on September
16, 2002, asked him for his views on the Calderón letter.
in the context of other similar unlawful conduct, and that no
explanation has been proffered for the questioning, a finding is
warranted that the questioning was indeed coercive and unlaw-
ful.
The Respondent’s assertion on brief (p. 34), that Serrano’s
questioning was not coercive because Santiago purportedly
“showed no fear or feeling of coercion in the conversation with
Serrano” and made no such claim in his testimony, does not
warrant a different result, for the standard applied by the Board
in determining whether certain conduct, including interroga-
tions, violates Section 8(a)(1), is an objective one. Westwood
Health Care Center, 330 NLRB 935, 940 at fn. 17 (2000). As
explained by the Board in Westwood, supra, “To say that the
standard is objective. . . means that it does not take into account
either the motive of the employer or the actual impact on the
employee.” The totality of the circumstances surrounding
Serrano’s questioning of Santiago convinces me that such inter-
rogation could reasonably be said to have interfered with the
free exercise by Santiago of his Section 7 rights, and thus vio-
lated Section 8(a)(1) of the Act.
g. The May 6, 2003 threat directed at Santiago
As previously discussed, on May 6, 2003, just days after
Torres was, as fully discussed infra, unlawfully discharged for
his Union activities, Rojas approached Santiago and, after ask-
ing if the latter had heard of Torres’ discharge, warned Santiago
to be careful and to take care of his job because he was next.
There is no indication in Santiago’s credited account of this
conversation that Rojas explained the reason for the warning.
Although the Respondent has contended, albeit pretextually as
found below, that Torres was discharged for violating its “no
helper” policy, there is no evidence to indicate, nor does the
Respondent claim, that Santiago had been engaging in similar
violations of the “no helper” policy, which could have ex-
plained the threat of discharge directed at Santiago by Rojas.
This unexplained threat to Santiago, following on the heels of
Torres’ discharge for his active involvement with the Union,
was, I find, clearly intended to convey to Santiago the message
that the Respondent suspected he too might be involved in un-
ion activities and would face a similar fate if he, like Torres,
were found to be engaging in such activities.34 Rojas’ remark
was clearly coercive as it could reasonably have the effect of
causing Santiago to discontinue his activities on behalf of the
Union for fear that he would be discharged if he did not.
Rojas’ threat to Santiago, therefore, constituted a violation of
Section 8(a)(1) of the Act.
h. The May 9, 2003 interrogation of Montalvo
On May 9, 2003, Calderón, as previously noted, distributed
another letter to employees, similar to the one he sent them in
September 2002, in which he, among other things, expressed
his belief that the USW was trying to organize employees, his

34 As discussed above, the Respondent, by this time, suspected
Santiago of being a union sympathizer, having gained that suspicion by
virtue of the unlawful surveillance of the August 13, 2002 employee
meeting at the Vega Alta town plaza attended by Santiago. I do not,
however, believe that the Respondent was yet fully aware of the extent
of his involvement with the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD712
opposition to the USW, and his expectation that employees
would oppose USW’s efforts. The complaint alleges, and I
agree, that Supervisor Rivera’s questioning of Montalvo as to
what he thought of Calderón’s May 2003 letter, and whether
union representatives had phoned or visited him at his home,
was unlawful. Rivera, as noted, never explained why he
needed to know how Montalvo felt about Calderón’s letter, or
whether Montalvo had been contacted by phone or in person at
his residence by a union representative. There is no evidence to
indicate that Montalvo was, at the time of the questioning, a
union supporter or sympathizer, much less an open and active
one. The questioning, as noted, was conducted by Montalvo’s
supervisor during a work evaluation being performed by the
latter of Montalvo, and was not part of any casual conversation
between the two. Although Montalvo, when asked how he felt
about Calderón’s antiunion letter, told Rivera that he agreed
with it, the fact that the question was posed to him by his su-
pervisor during the course of an evaluation raises a doubt as to
the reliability of his answer. Arguably, Montalvo may have
feared retaliation in the form of a bad evaluation and simply
gave Rivera the answer he wanted to hear. Whether or not
Montalvo actually felt coerced by Rivera’s questioning is, in
any event, of no real consequence for, as previously discussed,
the test for determining when an interrogation is coercive is an
objective one based not on whether the recipient actually feels
coerced, but rather whether the questioning could reasonably
tend to coerce the recipient into employee at whom it is di-
rected. Westwood Health Center, supra. The totality of cir-
cumstances surrounding the questioning of Montalvo, e.g., that
it was conducted by a supervisor during an evaluation of
Montalvo, without explanation as to why the information
sought (his views on Calderón’s antiunion letter, whether he
had received a phone call or a visit from union representatives)
was needed, warrants a conclusion that Rivera’s interrogation
of Montalvo in May 2003, was indeed coercive. Accordingly, I
find that said interrogation violated Section 8(a)(1) of the Act.
i. The mid-May 2003 interrogation of Santiago
The complaint alleges, and I agree, that J. P. Velez’ ques-
tioning of Santiago on how he felt about Calderón’s May 2003
antiunion letter, and how he felt about unions in general, was
unlawful. J. P. Velez, as noted, did not testify, leaving unex-
plained his reason for soliciting Santiago’s views on Calderón’s
antiunion letter and about unions in general. There is no ques-
tion that, as found above (see discussion of Rojas’ May 6, 2003
discharge threat to Santiago), the Respondent had reason to
believe that Santiago was a union sympathizer, hence the threat
directed at him by Rojas. In the absence of any explanation
from J. P. Velez as to the reason for his inquiry, I am convinced
that J. P. Velez’ purpose in questioning Santiago was to deter-
mine the extent of Santiago’s involvement with the Union. J.
P. Velez would not have any reason to posit such questions to
Santiago if he, in fact, knew that Santiago, like Torres, was one
of the Union’s primary in-house organizers at Holsum. In light
of all the circumstances, including the fact that Santiago had
already been threatened with discharge days earlier by Rojas, I
find that J. P. Velez’ interrogation of Santiago was indeed coer-
cive and a violation of Section 8(a)(1) of the Act.
2. The 8(a)(3) allegations
a. Torres’ discharge
The complaint, as noted, alleges that the Respondent unlaw-
fully discharged Torres on May 1, 2003, for his union activities.
The Respondent denies the allegation, contending instead that
Torres was lawfully discharged for violating its rule prohibiting
drivers from carrying unauthorized passengers in a company
vehicle. To establish a violation of Section 8(a)(3) and (1), the
General Counsel, under the causation test set forth by the Board
in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), must first
make a prima facie showing sufficient to support an inference
that protected or union activity was a motivating factor in an
employer's decision to discipline or discharge an employee.
See Manno Electric, 321 NLRB 278 fn. 12 (1996). The Gen-
eral Counsel makes out a prima facie case by demonstrating,
through a preponderance of evidence, that the alleged discrimi-
natee engaged in union or other protected activity, that the em-
ployer was aware of that activity, and that it harbored antiunion
animus. Inferences of knowledge, animus, and discriminatory
motivation may be drawn from circumstantial as well as direct
evidence. Frierson Building Supply Co., 328 NLRB 1023
(1999). Once the General Counsel succeeds in establishing a
prima facie case, the burden shifts to the employer to demon-
strate that it would have taken the same action even if the em-
ployee had not engaged in any protected or union activity.
Torres’ involvement in union and/or protected activities is
fairly well established, for the record makes clear that Torres,
along with Santiago, was responsible for arranging the em-
ployee meetings that were held in 2002 and who, with Santi-
ago, met with union organizers to discuss organizing the sales-
persons. Torres also attended various union meetings and so-
licited signed authorization cards from numerous employees.
Given these undisputed facts, there is no question, and I so find,
that Torres was, at all times prior to his discharge, an active
union adherent. Evidence that the Respondent harbored anti-
union animus is apparent from its unlawful conduct in interro-
gating employees about their activities, creating the impression
that it was keeping their activities under surveillance, and using
hired agents to photograph and/or videotape employees attend-
ing the September 2002 employee meeting. Calderón’s Sep-
tember 2002 and May 2003 antiunion letters to employees,
while not alleged to be unlawful, nevertheless provide ample
proof of the Respondent’s hostility towards the Union and its
supporters.
As to whether the Respondent had knowledge or was aware
of Torres’ union activities before firing him, there is little direct
evidence establishing such knowledge.35 The inquiry, however,
does not end there for the Board has made clear that where no
direct evidence of employer knowledge exists, it will examine
all the circumstances to determine if employer knowledge of

35 Counsel for the General Counsel points to the comments Santiago
claims Rojas made to him on August 13, 2002, in which Rojas admitted
knowing that Torres and Santiago had organized and attended the em-
ployee meetings held in July 2002, as establishing proof of Respon-
dent’s knowledge.
HOLSUM DE PUERTO RICO, INC. 713
the employee's union activities can be inferred. Music Express
East, Inc., 340 NLRB 1063 (2003).
I find such an inference warranted here. There is, in my
view, sufficient reason to doubt the Respondent’s assertion that
it was unaware of Torres’ involvement with the union prior to
discharging him on May 1, 2003. Torres, for example, testi-
fied, credibly and without contradiction, that in April 2003, just
prior to being discharged, he conducted his union activities,
including his solicitation and distribution of union cards to
other employees, out in the open in the Respondent’s parking
lot, in plain view of those entering or leaving the Respondent’s
facility. His activities, therefore, could very well have been
observed by any number of supervisors and managers who
entered or left the Respondent’s premises via the parking lot,
including Human Resources Manager Velez who, as noted, was
seen by Torres sitting in his vehicle for some 15 minutes near
the guard house adjacent to the parking lot where Torres was
conducting his union activities. Velez, as noted, did not deny
Torres’ assertion and, more importantly, did not explain what
he was doing sitting in his car all that time. In the absence of
such an explanation from Velez, I find it more likely than not
that Velez may very well have been observing Torres’ activi-
ties.
Indeed, there is good reason to believe that the Respondent
was on the lookout for any such union activities by employees.
Thus, according to Calderón’s May 9, 2003 antiunion letter to
salesmen and their families, the Respondent had recently
learned that a union was still trying to organize its employees
or, as Calderón put it in his letter, “continu[ing] to threaten the
future and security of the Holsum families.” Perceiving this
ongoing union activity as a threat to its existence, I am con-
vinced that the Respondent, as it did during the July–September
2002, surge in union activity among its employees, would have
attempted to learn through a closer observation of its employ-
ees’ activities and through interrogations, as occurred with the
May 2003, interrogations of Montalvo and Santiago, which
employees were union supporters and which were not. Given
the open manner in which Torres conducted his organizational
activities in April 2003, and the Respondent’s renewed aware-
ness of and sensitivity to the union activity taking place among
its employees, it would not be wholly unreasonable to believe
that Torres’ activities would have come to the Respondent’s
attention.
Other factors supporting an inference of knowledge include
the timing of, and the false reason provided for, Torres’ dis-
charge. As to the former, Torres, as noted, was discharged
around the time that the Respondent, as made clear by Cal-
derón’s May 9, 2003 memo, discovered and became preoccu-
pied with the renewed organizational activity being undertaken
at its facility, and soon after Torres openly began conducting
his union activities in the Respondent’s parking lot. As to the
latter, the Respondent’s explanation, that it fired Torres pursu-
ant to a “one strike, you’re out” rule used for violations of the
“no helper” policy, is devoid of merit, for, as previously dis-
cussed, no credible evidence was produced by the Respondent
to show that it ever had a “one strike, you’re out” rule. In fact,
the only credible evidence produced on how employees had
been, or were expected to be, treated for violating the “no
helper” policy reveals just the opposite. Thus, Vega, as previ-
ously discussed, was never seriously disciplined, much less
discharged, for his violation of the policy, and received only a
cautionary verbal warning from Perez for his misconduct. Fur-
ther, the supervisors’ memos contained in Respondent’s Exhib-
its 22, as noted, reflect that employees were told only that they
could be disciplined or suspended, not necessarily discharged,
if caught violating the “no helper” policy. Indeed, the lenient
treatment accorded Vega for violating the “no helper” policy is
consistent with the type of punishment, e.g., warnings, suspen-
sions, that sales supervisors in 1995 told employees they could
expect to receive for future violations of the “no helper” policy
(see RX-22). In sum, the Respondent’s implicit assertion that it
maintained a “zero tolerance” policy or, as described in its
brief, a “one strike, you’re out” rule, for violators of the “no
helper” policy, is contrary to the weight of the evidence and, in
my view, patently false. An employer's proffer of a false ra-
tionale for an employment decision permits the Board to infer
that the employer's actual reason is an unlawful one which it
seeks to conceal. Waste Management of Puerto Rico v. NLRB,
359 F.3d 36 (1st Cir. 2004). Thus, despite the lack of direct
evidence of employer knowledge, the above-described circum-
stances surrounding Torres’ discharge leads me to conclude
that the Respondent was indeed cognizant of Torres’ union
activities when it discharged him on May 1, 2003. Rojas’ un-
explained and rather cryptic warning to Santiago on May 6,
2003, just days after Torres’ discharge, that he, Santiago, was
next to be discharged, bolsters the inference that the Respon-
dent must have known of Torres’ union activities and fired him
for that reason. Accordingly, I find that counsel for the General
Counsel has made a prima facie showing that Torres was
unlawfully discharged, if not wholly at least in part, for his
union activities.
I further find that the Respondent has not demonstrated that
it would have discharged Torres even if he had not engaged in
union activities. While there is no question that Torres was
seen with an unauthorized person in his company vehicle, it is
not all that clear that this particular incident amounted to a vio-
lation of the “no helper” policy as the unknown individual,
according to Torres’ undisputed account and which I credit,
boarded his vehicle without permission and was not being used
as a “helper” by Torres. But even assuming, arguendo, that
Torres’ decision to proceed to the next traffic light with the
unauthorized person in his Company vehicle constituted a vio-
lation of the “no helper” policy, the mild treatment (a verbal
warning) accorded Vega for a similar violation, the supervisors’
memos in Respondent’s Exhibit 22 showing employees being
told only that they could receive warnings or suspensions for
violating the “no helper” policy, and the Respondent’s failure
to present any credible evidence that employees had, in the
past, been immediately terminated for a first time violation of
the “no helper” policy, leads me to conclude that Torres would
not have been discharged for his misconduct, which was his
first offense of this kind. Rather, I am convinced that Torres, at
most, would only have received either a warning or a suspen-
sion for this first time violation of the “no helper” policy, and
that the Respondent’s decision to impose the harshest punish-
ment of discharge on Torres for this single violation of the “no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD714
helper” policy was precipitated by its discovery of his involve-
ment with the Union and its antiunion animus. Thus, I find
that, but for his union activities, Torres would not have been
discharged, but would, at most, have received some lesser form
of discipline. Accordingly, having found that Torres’ discharge
was motivated by antiunion reasons, it follows that the dis-
charge violated Section 8(a)(3) and (1) of the Act, as alleged.
b. Santiago’s discharge
As to Santiago’s dismissal on May 29, 2003, counsel for the
General Counsel has, I find, made a prima facie showing under
Wright Line, supra, that his discharge was motivated by anti-
union considerations. As previously discussed, Santiago, along
with Torres, was responsible for organizing the three 2002
employee meetings, and for seeking out and soliciting the Un-
ion’s assistance in organizing the Respondent’s salesmen.
Santiago also attended union meetings, and distributed and
solicited signed union authorization cards from employees.
Counsel for the General Counsel has also demonstrated,
through Santiago’s unchallenged and credited testimony, that J.
P. Velez, and thus the Respondent, learned of the extent of
Santiago’s involvement with the Union in mid-May, 2003, not
long before discharging him.36 Finally, as discussed above in
connection with Torres’ discharge, there is ample record evi-
dence, including the numerous acts of misconduct committed
by the Respondent in violation of Section 8(a)(1), showing that
the Respondent harbored antiunion animus. As counsel for the
General Counsel has made a prima facie showing that the
Santiago’s discharge was discriminatorily motivated by anti-
union considerations, the burden shifts to the Respondent to
demonstrate that Santiago’s discharge would have occurred
even if he had not engaged in union activity. The Respondent,
I find, has not done so here.
While there is no disputing that Santiago, on May 24, 2003,
took six cups of coffee from the Respondent’s coffee machine

36 J. P. Velez, as noted, was not called to refute Santiago’s claim
that J. P. Velez interrogated him about his union activities and that,
during that conversation, Santiago admitted being a union organizer.
The Board ordinarily imputes a supervisor's knowledge of an em-
ployee's union activities to the employer, unless it is affirmatively es-
tablished that the supervisor who obtained such knowledge did not pass
the information on to others. Ready Mixed Concrete Co., 317 NLRB
1140, 1146 at fn. 18 (1995); C & L Systems Corp., 299 NLRB 366, 378
(1990). No such showing has been made here by the Respondent. As
previously discussed and found, the Respondent, prior to J. P. Velez’
mid-May 2003 interrogation, had reason to suspect that Santiago sym-
pathized with the Union, but did not know of the extent of his union
involvement. Thus, on May 6, 2003, Rojas warned Santiago to be
careful lest he face the same fate that befell Torres for the latter’s in-
volvement with the Union. When questioned by J. P. Velez in mid-
May about his views on Calderón’s letter and of unions in general,
Santiago, given Rojas’ earlier threat, reasonably believed that the Re-
spondent knew of his involvement with the Union, hence his reply to J.
P. Velez that the latter knew full well that he (Santiago) had been one
of the organizers of the employee meetings held in July 2002, and,
given the opportunity, would do so again. Clearly, any questions or
doubts the Respondent may have had regarding Santiago’s involvement
with the Union and in the 2002 organizational campaign were erased by
Santiago’s unwitting confession to J. P. Velez of his role as an active
union adherent.
and gave them to Torres and other union agents and/or support-
ers who were distributing union literature outside the Respon-
dent’s property, the mixed explanations proffered by Respon-
dent’s various witnesses for why this particular conduct was so
improper as to warrant Santiago’s discharge, along with other
factors, convinces me that the coffee incident was simply used
by the Respondent as a pretext to discharge Santiago for his
union activities. As to why Santiago was discharged, the sole
reason stated on the personnel action form presumably prepared
soon after the action was taken is that Santiago was discharged
for removing company property from Holsum’s premises with-
out prior authorization. At the hearing, however, both Sanchez
and Perez cited the distribution of the coffees by Santiago to
nonemployees as a further justification for the discharge. Thus,
Sanchez, as noted, testified that Santiago was fired for (1) “re-
moving Company property” and (2) “giving it to people who
were unrelated to the Company,” while Perez testified that
Santiago was fired for taking the coffees “outside of the Com-
pany” and distributing them “to some people that were not part
of . . . or foreign to Holsum.” This additional reason for the
discharge, i.e., the distribution of coffees to nonemployees,
was, as noted, not cited as a factor by the Respondent in the
personnel action form prepared contemporaneously with the
discharge. The Board has held that shifting defenses, such as
those proffered here by the Respondent, support an inference
that the Respondent's defense is a pretext. Enjo Architectural
Millwork, 340 NLRB 1340 (2003); Tracer Protection Services,
328 NLRB 734 (1999); Black Entertainment Television, 324
NLRB 1161 (1997).
The Respondent also did not provide Santiago with an ex-
planation for his discharge when it fired him on May 29, 2003,
for, according to Santiago’s credited account, the only criticism
of the May 24, 2003 coffee incident came from J. P. Velez
whose primary and sole objection to Santiago’s behavior was
the fact that Santiago distributed coffees to union supporters or
sympathizers who were handing out what he perceived to be
anti-Holsum union literature. As noted, Sanchez, who notified
Santiago of his discharge, simply told Santiago that he was
tired of going around the “issue” without explaining what he
meant, and made no mention to Santiago of his failure to obtain
permission before taking the coffees off the premises, the sole
reason stated in the personnel action form as the basis for the
discharge, or that he had given the coffees to nonemployees,
the other reason proffered for the discharge by Sanchez and
Perez for the first time at the hearing. Sanchez’ failure to ex-
plain to Santiago why he was being discharged lends further
support to a finding that the reason(s) cited by the Respondent
are purely pretextual and not the real reason(s) for his termina-
tion. M. J. Mechanical Services, 324 NLRB 812, 817 (1997);
Hudson Neckware, Inc., 302 NLRB 93, 94–95 (1991). San-
chez’ failure to explain to Santiago what “issue” he was refer-
ring to, coupled with J. P. Velez’ earlier criticism of Santiago’s
conduct in distributing coffees to union supporters handing out
what he perceived to be anti-Holsum union literature, and the
Respondent’s attempt through Sanchez and Perez at the hearing
to further rationalize its discharge decision by relying on a rea-
son not previously cited in the personnel action report or dis-
cussed with Santiago, leads me to conclude that it was the fact
HOLSUM DE PUERTO RICO, INC. 715
that Santiago provided assistance to union supporters and sym-
pathizers who were leafleting just outside the Respondent’s
property, not his alleged failure to get supervisory permission
to leave the premises with the coffees, or to seek prior approval
to hand out the coffees to nonemployees, which riled Sanchez
and prompted him to discharge Santiago.
Thus, even if I were to believe, and I do not, that the stan-
dards of conduct rule cited by the Respondent as the reason for
Santiago’s discharge prohibited Santiago’s conduct,37 I am
nevertheless convinced that the Respondent simply used the
rule as a pretext to justify discharging Santiago for lending
support to the Union. Having found the Respondent’s stated
explanation for discharging Santiago to be pretextual, it follows
that the Respondent has not satisfied its Wright Line obligation
of showing that Santiago would have been discharged even if
he had not engaged in union activity. Its discharge of Santiago
is therefore found to have been unlawful and a violation of
Section 8(a)(3) and (1) of the Act, as alleged.
CONCLUSIONS OF LAW
1. The Respondent, Holsum de Puerto Rico, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.

37 Undermining the Respondent’s claim that Santiago’s distribution
of coffee to nonemployees without prior authorization violated its
Standards of Conduct rule is Perez’ admission that the Respondent does
not have any written rules regarding employee use of the coffee ma-
chine. Although Perez did testify that employees must obtain supervi-
sory approval before distributing coffee to nonemployees on or off
Company premises, he cited no specific rule containing such a restric-
tion, and stated only, somewhat vaguely, that the Respondent does have
a policy regarding its “products and property.” He did not, as noted,
describe or explain what that policy was. Perez’ testimony as to the
existence of such a restriction, when viewed in light of his admission
that the Respondent has no rules governing the use of the coffee ma-
chine, is, like much of his other testimony, found not to be credible.
Crespo, as previously discussed, made no mention in his testimony of
the existence of any such rule. Rather, his testimony was that employ-
ees needed to get permission from a supervisor only when taking coffee
off Company premises without regard to whether the coffee was to be
given to employees or nonemployees. Sanchez likewise never claimed
to have been relying on any particular rule when he asserted, for the
first time at the hearing, that Santiago was discharged, in part, for dis-
tributing coffee to nonemployees without permission. In sum, there is
no credible evidence to support the Respondent’s claim that a supervi-
sor’s prior approval was needed before an employee could give a non-
employee coffee from its coffee machine. Moreover, even if I were to
accept as true, and I do not, Perez’ claim that employees are required to
obtain such prior supervisory approval, no evidence was produced by
the Respondent to show that employees were ever made aware of this
particular restriction on their use of the coffee machine. The Respon-
dent’s implicit assertion on brief, that Santiago admitted knowing of
this particular restriction, is misleading and based on a distortion of
Santiago’s testimony, for the latter only admitted receiving a copy of
the Standards of Conduct some 13 years earlier, and overhearing in
conversations with more senior employees that employees were not
permitted “to damage, remove, or use Company property without
proper authorization.” (Tr. 486–487.) Santiago never admitted having
knowledge of the rule described by Perez requiring prior authorization
before coffees could be given to nonemployees.
2. The Union, United Automobile, Aerospace, and Agricul-
tural Implement Workers of America International Union, Lo-
cal 2429, AFL–CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By creating the impression that it was keeping its employ-
ees union activities under surveillance, coercively interrogating
them about their union activities, and warning employees of
unspecified adverse consequences if they supported the Union,
the Respondent violated Section 8(a)(1) of the Act
4. By terminating the employment of José Torres Figueroa
on May 1, 2003, and José Santiago Maldonado on May 29,
2003, because they supported the Union, the Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
5. The above unlawful conduct engaged in by the Respon-
dent constitute unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
6. Other than the above-described unlawful conduct, the Re-
spondent has not violated the Act in any other manner.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
To remedy its unlawful discharge of employees Jose Torres
Figueroa and Jose Santiago Maldonado, the Respondent, within
14 days of the Order, shall be required to offer them immediate
and full reinstatement to their former positions or, if their jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed. The Respondent shall also be required to
make Torres and Santiago whole for any loss of earnings and
other benefits they may have suffered as a result of the dis-
crimination against them, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest to be computed in
accordance with New Horizons for the Retarded, 283 NLRB
1173 (1987). Further, the Respondent, within 14 days from the
date of the Order, shall be required to remove from its files any
reference to the unlawful discharge of Torres and Santiago,
and, within 3 days thereafter, to notify them in writing that it
has done so and that the discharges will not be used against
them in any way. Finally, the Respondent shall be required to
post an appropriate notice to employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended38
ORDER
The Respondent, Holsum de Puerto Rico, Inc., Toa Baja,
Puerto Rico, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against Jose
Torres Figueroa, Jose Santiago Maldonado, or any other em-
ployee for supporting the Union.

38 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD716
(b) Engaging in the surveillance of its employees’ protected
activities, creating the impression that it is keeping its employ-
ees’ activities under surveillance, coercively interrogating em-
ployees about their union activities, and threatening employees
with discharge or other unspecified reprisals if they supported
the Union.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Jose Torres Figueroa and Jose Santiago Maldonado full rein-
statement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(b) Make Jose Torres Figueroa and Jose Santiago
Maldonado whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them in the
manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges,
and within 3 days thereafter notify Jose Torres Figueroa and
Jose Santiago Maldonado, in writing, that this has been done
and that the discharges will not be used against them in any
way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Toa Baja, Puerto Rico copies of the attached Notice
marked “Appendix.”39 Copies of the notice, on forms provided
by the Regional Director for Region 24, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the Notice to all current employees and former em-

39 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ployees employed by the Respondent at any time since July 25,
2002.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting United Automobile, Aerospace, and
Agricultural Implement Workers of America International Un-
ion, Local 2429, AFL–CIO, or any other union.
WE WILL NOT engage in, nor create the impression that we
are engaging in, the surveillance of your protected activities,
WE WILL NOT coercively interrogate you about such activities,
and WE WILL NOT threaten you with discharge or unspecified
reprisals for engaging in protected or union activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Jose Torres Figueroa and Jose Santiago Maldonado full rein-
statement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
WE WILL make Jose Torres Figueroa and Jose Santiago
Maldonado whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of this Order, re-
move from our files any reference to the unlawful discharges of
Jose Torres Figueroa and Jose Santiago Maldonado, and WE
WILL, within 3 days thereafter, notify both of them in writing
that this has been done and that the discharges will not be used
against them in any way.
HOLSUM DE PUERTO RICO, INC.