La Mousse, Inc.

National Labor Relations Board - Board Decisions

Oct 20, 1981

259 N.L.R.B. 37 (N.L.R.B. 1981)

LA MOUSSE, INC. 37
La Mousse, Inc. and Bakery, Confectionery & To- on forms provided by the Regional Director for
bacco Workers International Union, Local 453, Region 31, after being duly signed by an author-
AFL-CIO. Cases 31-CA-9367, 31-CA-9680, ized representative of Respondent, shall be posted
and 31-RC-4550 by Respondent immediately upon receipt thereof,
October 20. 1981 and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
DECISION AND ORDER places where notices to employees are customarily
BY MEMBERS FANNING, JENKINS, AND posted. Reasonable steps shall be taken by Re-
ZIMMERMAN spondent to insure that said notices are not altered,
defaced, or covered by any other material."
On February 23, 1981, Administrative Law
Judge James S. Jenson issued the attached Decision DECISION
in this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and a supporting
brief, and the General Counsel also filed a brief in JAMES S. JENSON, Administrative Law Judge: This
response to Respondent exceptions, and Respond- case was heard in Los Angeles, California, on various
ent filed a brief in opposition to the General Coun- dates between May 6 and July 2, 1980. The charge in
sel's exceptions. Case 31-CA-9367 was filed on September 6, 1979,' and a
The National Labor Relations Board has consid- complaint thereon issued on November 29. On January
ered the record and the attached Decision in light 15, 1980, the Regional Director for Region 31 issued a
of the exceptions and briefs and has decided to "Report on Challenges and Objections, Order consolidat-
affirm the rulings, findings, ' and conclusions2 of the ing cases, Order Directing Hearing and Notice of Hear-
Administrative Law Judge and to adopt his recoi- ing," wherein Cases 31-CA-9367 and 31-RC-4550 were
mended Order, as modified herein.' consolidated for hearing. On January 7, 1980, the charge
in Case 31-CA-9680 was filed, and on February 29,
ORDER 1980, an order consolidating all three cases for hearing
was issued. The objections to the election allege conduct
Pursuant to Section 10(c) of the National Labor substantially similar to certain conduct alleged as unfair
Relations Act, as amended, the National Labor Re- labor practices in the consolidated complaint. A resolu-
lations Board adopts as its Order the recommended tion of the 8(a)(3) allegations will also dispose of the
Order of the Administrative Law Judge, as modi- challenged ballots. Respondent denies it engaged in con-
fled below, and hereby orders that the Respondent, duct alleged to be unlawful and objectionable.
La Mousse, Inc., Los Angeles, California, its offi- All parties were given full opportunity to appear, to
cers, agents, successors, and assigns, shall take the introduce evidence, to examine and cross-examine wit-
action set forth in the said recommended Order, as nesses, to argue orally, and to file briefs. Extensive briefs
so modified: were filed by Respondent and the General Counsel, and
Substitute the following for paragraph 2(e): have been carefully considered.
"(e) Post at its Los Angeles plant copies of the Upon the entire record in the case, and from my ob-
servation of the witnesses and their demeanor, I make
attached notice marked 'Appendix.'2 8 Copies of the following:
said notice, which shall be in Spanish and English,
FINDINGS OF FACT
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to I. JURISDICTION
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con- La Mousse, Inc., herein called Respondent, is a Cali-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have fornia corporation engaged in the manufacture and sale
carefully examined the record and find no basis for reversing his findings. of pastries. Its gross revenue exceeds $500,000 per year,
In affirming the Administrative Law Judge's conclusion that Re- and it annually purchases and receives goods and serv-
spondent did not violate the Act by discharging Supervisor Berta Ujueta, ices valued in excess of $50,000 from sellers or suppliers
we rely solely on the reason that her termination was only for lawful
cause rather than for unlawful discriminatory cause. In addition, we note located within the State of California, which sellers or
that the Administrative Law Judge's Conclusion of Law 7 failed to state suppliers received such goods in substantially the same
that Respondent violated Sec. 8(aX5) of the Act, as well as Sec. 8(aXI), form directly from outside the State of California. In ac-
by its January 1, 1980, unilateral grant of group health insurance benef with Section 102.20 of the Board's Rules and
' Member Fanning would make the bargaining order prospective in
nature. See his concurring opinions in Beasley Energy. Inc.. d/b/a Peaker Regulations, and Respondent's admission, it is found that
Run Coal Company, 228 NLRB 93 (1977), and Hambre Hombre Enter. Respondent is an employer engaged in commerce and in
prises Inc.. d/b/a Panchito's, 228 NLRB 136 (1977). The General Counsel a business affecting commerce within the meaning of
has excepted to the Administrative Law Judge's inadvertent failure to in-
clude in his recommended Order a requirement that the notices be posted Section 2(6) and (7) of the Act.
in Spanish as well as in English. We agree with the General Counsel and
we shall modify the recommended Order accordingly. All dates herein are in 1979 unless stated otherwise.
259 NLRB No. 7
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED The General Counsel seeks the usual reinstatement and
restitution of backpay remedy, together with a bargain-
It is admitted and found that Bakery, Confectionery & ing order. As noted earlier, the objections to the election
Tobacco Workers International Union, Local 453, AFL- alleged conduct substantially similar to some of the
CIO, herein called the Union, is a labor organization unfair labor practice allegations. A resolution of the
within the meaning of Section 2(5) of the Act. 8(a)(3) allegations will also dispose of the challenged
ballot issue.
Contending that Berta Ujueta was a supervisor within
The consolidated complaint alleges in substance: the meaning of the Act, played the leading role in orga-
(I) That following the designation of the Union as Re- nizing the employees, and solicited their signatures on
spondent's employees' collective-bargaining representa- the Union's authorization cards, Respondent denies that
tive, Respondent constructively discharged 12 of its un- the Union at any time represented an uncoerced majority
documented alien employees by making arrangements of its employees. While acknowledging that law firm
with the United States Immigration and Naturalization which previously represented it was responsible for the
Service, herein called INS, to conduct a raid of Re- INS raid, Respondent points out that Korman attempted
spondent's facility approximately 2 days prior to a unsuccessfully to countermand arrangements for the raid
Board-conducted representation election and which re- and notified Respondent's employees not to report for
sulted in the deportation of said employees, because of work on the morning of the expected raid, but that the
their union or protected concerted activities, thereby Union encouraged them to report for work. Therefore,
violating Section 8(a)(3) of the Act. Respondent argues, the Union substantially contributed
(2) That Respondent has failed to reinstate three of to the discharges of employees resulting from the raid
said employees to their former positions of employment and therefore a bargaining order would allow the Union
in violation of Section 8(a)(3). to benefit from its own misconduct and would not effec-
(3) That Respondent unlawfully discharged Berta tuate the policies of the Act. Respondent denies specifi-
Ujueta in violation of Section 8(a)(3). cally and generally all other allegations in the complaint,
(4) That Respondent granted its employees morning and moves to dismiss the complaint on the ground the
and afternoon breaks in order to discourage support for Union fraudulently induced it into agreeing to an elec-and afternoon breaks in order to discourage support for
the Union in violation of Section 8(a)(3). tion.
(5) That Respondent subsequently recalled Refugio Thus, the principal issues to be resolved are:
1. Whether Berta Ujueta was a supervisor within theBetancourt to a position different from his former job i. Whether eta Uueta was a supervisor within the
and thereafter discharged him, all because of his union or meaning of the Act and whether her termination was un-
lawful.
protected concerted activities. president, ~ 2. Whether the role Berta Ujueta played in the Union's
(6) That Nadine Korman, Respondent's president, vio-(6) That Nadine Korman, Respondent's president, viol organizing drive tainted the authorization cards so that
lated Section 8(a)(1) by telling employees she would the Union never obtained an uncoerced majority.
never accept the Union and that if they engaged in a 3. Whether Respondent's conduct warrants setting
strike they would lose their jobs. aside the election and a bargaining order.
(7) That Respondent's agent Fierro unlawfully interro- 4. Whether Betancourt was properly reinstated and
gated an employee about her union interests. whether his subsequent discharge was unlawful.
(8) That Respondent's agents, Ramirez and Fierro, in- 5. Whether the discharge of Arauz, Badillo, and
terrogated employees about their union activities, solicit- Aguirre was unlawful.
ed their grievances, promised to grant benefits to em- 6. Whether the complaint should be dismissed on the
ployees, and threatened unspecified reprisals against an ground that the Union fraudulently induced Respondent
employee, all for the purpose of discouraging their union into entering into an agreement for an election.
activities. Credibility, as in all cases of this type, is, of course, a
(9) That Respondent, through Korman and Ramirez, material issue. The transcript reveals considerable testi-
unlawfully promised Berta Ujueta benefits to discourage monial conflict. In particular, there was considerable
her support for the Union, asked her to report on the
union sympathies and desires of other employees, and ad- 2 At the conclusion of the General Counsel's case, Respondent moved
vised her of the futility of selecting the Union by stating to dismiss certain complaint allegations. I granted the motion with re-
Respondent would never have a union. spect to pars. 18(d) and 20(d). Par. 18(d) alleges that Respondent violated
(10) That in November and December, Respondent Section 8(aXI) by promising employees higher wages in order to discour-
age their support for the Union. The General Counsel acknowledged she
violated Section 8(a)(1) by unilaterally changing the had not presented any evidence in support of this allegation. According-
length of morning and afternoon breaks, arranging for ly, I reaffirm the dismissal of par. 18(d). I have reconsidered the evidence
medical insurance, instituting three rules governing and arguments with respect to par. 20(d) which alleges that Respondent
working conditions, and requiring that employees keep a violated Sec. 8(aXI) by unilaterally requiring its employees to keep re-
cords of the number of "leaves" they made, and by timing the employees
record of certain work produced and began timing its while they made said "leaves." The evidence shows conclusively that Re-
employees engaged in such work. spondent was engaged in conducting a cost analysis and timestudy for the
(11) That in January 1980, Respondent discharged purpose of developing a price quotation on a special mousse for Conti-
three employees for failing to comply with one of the nental Airlines. In view of the valid business justification for the study,
its limited duration, and the fact that Rosen specifically stated on the
rules governing working conditions that had been unilat- record that the Union did not have a "problem" with a timestudy, I reaf-
erally instituted. firm my prior ruling dismissing par. 20(d).
LA MOUSSE, INC. 39
conflict with respect to whether Berta Ujueta, herein store on Westwood Boulevard in Los Angeles, some dis-
called Berta, was really vested with supervisory authori- tance from the La Grange operation. Lee has worked at
ty; whether Berta threatened Nadine Korman, which that location since its opening. Except for eating lunch
was the motivating factor in her termination; whether sometimes in the kitchen area with the kitchen employ-
both the Spanish and English versions of the notice of ees prior to the opening of the Westwood Boulevard
election were posted; whether unlawful statements were retail store, Lee, who speaks fluent Spanish, spent no
made by Korman during a speech which was read to time in the kitchen production area. Mary Lou Minnillo,
employees; and whether Refugio Betancourt was re- no longer employed by Respondent, was the bookkeeper
called in January to a position substantially equivalent to and "sort of office manager" at both the Third Street
the job he occupied prior to August 29. In making my and La Grange facilities. She occupied a desk in the
credibility findings, I have given consideration to the de- front office at both locations, where, in addition to doing
meanor of the witnesses while they were on the stand, the bookkeeping, she answered the phone, solicited
their ability to recall past events, the various positions phone orders from restaurants, typed the orders, and ar-
occupied by the witnesses and their possible interest in ranged for their delivery. Other than passing through the
the outcome of the litigation, the inherent probabilities in kitchen to the restroom facilities, Minnillo spent no time
the accounts which they gave, and the weight of the evi- in the kitchen. Either she or Korman prepared a list of
dence. The testimony of Berta and others of the General orders for the following day which was posted on the
Counsel's witnesses consistently sought to portray Berta bulletin board each evening so the kitchen personnel
as lacking any authority in the kitchen. As will be seen would know what types of desserts were required for the
hereafter, Respondent's witnesses, including former em- following day. Korman testified that in her absence,
ployees who have no interest in the proceedings, contra- which was often and sometimes protracted, Berta had
dicted their testimony. The General Counsel's picture of always been in charge of the kitchen and Minnillo in
Respondent's managerial organization is at variance with charge of the office. Both Korman and Berta testified
sound practice, and in my view the testimony of her wit- that in 1978, while still at the Third Street location,
nesses in this regard lacked the ring of truth. If they Korman told Berta that she was a supervisor and she
were to be believed, I would have to find that the 16- was not to wash dishes anymore.
plus kitchen employees worked without supervision vir- Interest in the Union arose in February or March
tually all of the time. For reasons which will appear 1979. Delivery man Mike Garai called the Union and
hereafter, I am convinced that the General Counsel's gave Berta's name, address, and phone number to the
witnesses had in some way been apprised of the impact union representative. Rosen, the Union's secretary-trea-
that finding that Berta was a supervisor might have on surer and business agent, contacted Berta who in turn in-
the proceedings, and tailored their testimony according- vited the production employees to a meeting at the union
ly. I am equally convinced they tailored their testimony hall on April 13. As Respondent's kitchen employees all
regarding the posting of the election notices, which will speak Spanish, Rosen had another individual present to
be more fully explained below. Thus, while I do credit translate what he had to say into Spanish.3 Rosen's trans-
the General Counsel's witnesses in many respects, I do lator, however, apparently was not too good, and it fell
not credit their testimony in those particular areas. To upon Berta, who was fluent in both Spanish and English,
the extent I credit a witness only in part, I do so upon to help out in the translations. While there is some dis-
the evidentiary rule that it is not uncommon "to believe pute as to what Rosen told the employees regarding the
some and not all of the witness' testimony." N.L.R.B. v. purpose of the authorization cards which were passed
Universal Camera Corporation, 179 F.2d 749, 754 (2d Cir. out, the crucial cards are clear in that they designate, in
1950). both English and Spanish, the Union "to act as my ex-
IV. THE ALLEGED UNFAIR LABOR PRACTICES clusive bargaining agent for purposes of collective bar-
gaining." Approximately 2 weeks later, on April 25,
A. The Setting Berta handed out a second set of cards to the employees,
telling them that they had to sign them because the word
Nadine Korman commenced making desserts commer- "tobacco" had not been included in the Union's name on
cially in the kitchen of her home in 1972. Berta was her the first set of cards. While Berta denied that she was
first employee. Prior to moving in 1974 to a building on present when any of the employees signed the second set
Third Street in Los Angeles, another kitchen employee of cards, the credited testimony shows that she handed
was hired. The business appears to have prospered on them out in the "closet" or "dressing room" to individu-
Third Street, more employees were hired, and on March al employees and that some signed them in her pres-
17, 1979, the operation moved to La Grange Street, ence. 4
where, in addition to Berta, approximately 16 kitchen On July 3, the Union filed a petition for an election in
employees, 2 drivers, and a bookkeeper worked. From Case 31-RC-4550. It is undisputed that Korman's first
sometime in 1975 until December 1977, Korman's knowledge of organizing efforts was the receipt of a
mother, Sylvia Lee, also worked at the Third Street lo-
cation taking orders and selling products at the retail later After receiving a copy Korman hired attorneys
counter which was located in the front of the building.
The kitchen, where of course the kitchen employees 'Obviously. Rosen does not speak Spanish
worked, was located in the rear portion of the building. ' Of the nine second set of cards in evidence. seven, including one
In or about December 1977, Respondent opened a retail signed by Berta, are dated April 25, one April 26, and one April 27.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ross Arbiter and Paul Gordon of the Los Angeles firm told them that he did not think INS was going to come,
Gordon, Weinberg & Gordon to represent Respondent in but he thought that someone was coming to check some
the representation case. A hearing on the R case petition records and that Korman did not want the employees
was scheduled for July 30. On that date, the Union and there so that they could be interviewed. After talking to
Respondent executed a Stipulation for Certification Rosen, Berta returned home and called those employees
Upon Consent Election, in the following unit: she had not yet contacted, telling them both Korman's
message and Rosen's reaction.
All full and part-time hourly production employees The following morning, August 29, all but two of the
employed by the employer at its location [at] 11150 kitchen employees reported for work at 6 a.m., the usual
La Grange Avenue, Los Angeles, California, ex- starting time. Maria Zepeda and Lubia Gutierrez were
cluded all delivery employees, office clerical em- both pregnant and did not report for work that morning.
ployees, guards, and supervisors including Berta At approximately 7:30 a.m., INS agents arrived and con-
Alicia Ujueta. ducted a survey and determined that 10 employees were
The Board agent scheduled to conduct the representa- illegal aliens. All 10 returned voluntarily to their native
tion hearing recommended approval of the agreement on countries, to Mexico and 1 to Guatemala.5 At the behest
July 30, the day it was executed by the parties, and the of Respondent's then attorney, all 10 employees taken
Regional Director approved it on the same day. On away by INS agents, and the 2 women that had not re-
August 7, Rosen, who had executed the agreement on ported for work that morning, were terminated. Berta
was also terminated under circumstances to be discussedbehalf of the Union, wrote to the Regional Director as was also ter
~~~~~~~~~~follows: ~hereafter.follows:
On August 31, Berta and several of the employees that
Dear Mr. Goubeaux: had accepted voluntary deportation on August 29, but
I am questioning the decision made by one of that had reentered the country illegally, appeared at Re-
your deputys [sic] Mr. Bryant, regarding the plac- spondent's premises and were permitted to vote in the
ing of a specific name rather than a position on La representation election under challenge. The report on
Mousse, Inc., case 31-RC-4550. challenges and objections recites that the tally of ballots
In my opinion the placing of the name, Berta showed that of approximately 5 eligible voters, 10 cast
Alicia Ujueta, constitutes a violation of the NLRB ballots, of which none were for the petitioning union, 2
Act, and I am questioning the legality of Mr. were against the Union, and 8 were challenged. Adelina
Bryants [sic] action in insisting that, that specific De La Cruz, Raquel Gonzales, and Luis Olivas, all chal-
name be deleted. lenged by the Petitioner on the ground they were super-
Please inform me if I am correct as to this visors, have been determined by the Regional Director
matter. to be eligible voters. Ana Veronica Gutierrez, Ana Elsa
Reyes Rodriguez, Ofelia Vasquez, Arcelia Rodriguez,
Sincerely, James Rosen and Berta were challenged by the Board agent conduct-
Secretary-Treasurer ing the election because their names did not appear on
the eligibility list prepared by Respondent. All five had
A copy of the letter was not sent to Respondent, nor been terminated on August 29. My conclusions with re-
was Respondent aware of the letter until it was produced
by the General Counsel during rebuttal herein. The Re- spect to their eligibility appears hereafter.
There is no dispute that following Berta's termination,gional Director's response is not a part of the record.
Gloria Lopez was made the kitchen supervisor and thatDuring August, Korman gave a speech to the kitchen
employees, and consultants hired by Respondent's attor- she possessed supervisory authority.
neys spoke to various employees. Alleged statements and On September 6, the charge in Case 31-CA-9367, and
queries are alleged as violations of Section 8(a)(1) and on November 29 the complaint and notice of hearing in
objectionable election conduct. that case issued. In December, Respondent offered rein-
About a week prior to the election scheduled for statement to most of the discharged employees, including
August 31, attorney Arbiter made arrangements with Betancourt who was again discharged within a few days.
INS to conduct a survey of Respondent's employees for His recall and termination will be discussed later.
illegal aliens. While Korman appears to have expressed Effective January 1, 1980, Respondent, without prior
some reservations about followihg this course, nothing notice to the Union, instituted a health insurance plan for
was done to impede the forthcoming INS raid. Instead, the employees. In December, Respondent changed the
she called Berta the evening of August 28, told her she length of the morning and afternoon breaks for employ-
had received an anonymous tip that INS would be in the ees, and on December 29, read to employees, and posted
area the following day, and that Berta should call the on the bulletin board, Respondent's policies regarding
other employees and tell them not to come to work. the "disturbing or touching another person's personal
While Korman did not know for a fact that a substantial property," and the leaving of cooking materials unat-
number of the kitchen employees were illegal aliens- tended which would subject one to immediate discharge,
and as a consequence they would be deported-she sus-
pected they were. After talking to Korman, Berta went = Refugio Betancourt, Lilia Garcia, Ana Veronica Gutierrez, Rosenda
m rtiene Ramirez, Ana Elsa Reyes Rodriguez, Arcelia Rodriguez. Elizabeth Vii-
to the union hall and talked to Rosen. Yolanda Martinez lanueva and Ofelia Vasquez to Mexico, and Yolanda Martinez to Guate-
and Gloria Lopez were already there. Rosen apparently mala.
LA MOUSSE, INC. 41
and the failure to call in within 1 hour of the start of the ees to $200 for Luis Ujueta, Berta's husband. Korman
workday if the employee was going to be late or absent, also rewarded Berta with gifts of jewelry costing ap-
also subjecting one to immediate discharge. Thereafter, proximately $300, or triple the cost of gifts given to any
Aida Arauz, Mario Badillo, and Demazo Aguirre were of the other employees. She also rewarded Berta with a
terminated for failure to comply with the call-in policy. variety of other gifts. The record shows that Korman
The unilateral change in the length of the breaks, the in- relied on Berta's evaluations of employees in either
stitution of the rules, and the termination of three indi- granting or denying raises, and that she terminated em-
viduals for violation of the rules, are alleged as violations ployees upon receiving negative reports on employees
of Section 8(a)(1). The charge in Case 31-CA-9680 cov- from Berta. In neither situation did Korman make an in-
ering those alleged infractions was filed on January 7, dependent investigation, instead relying solely on Berta's
1980, and the consolidated amended complaint covering evaluations. According to Korman, she told Berta as
these and the other alleged discriminatees, issued Febru- early as 1974 that she was in charge of the kitchen and
ary 29, 1980.
The allegations in the consolidated complaint are not in 1978, that she was a supervisor and should not be
in chronological order. Insofar as is possible, I have at- washing dishes. Berta acknowledged she had been told
tempted to treat the allegations chronologically. on two occasions not to wash dishes, and in 1978 that
Korman told her she was a supervisor. 7 The record
B. The Question of Berta Ujueta's Supervisory Status shows that Korman was away on numerous occasions
varying from a few days to a month. While the General
nesses consistently sought to portray Berta as lacking Counsel's witnesses claim that no one was left in charge
any authority, claiming that until Gloria Lopez was of the kitchen on these occasions, the weight of the evi-
made supervisor after Berta's August 29 termination, denoe and sound business practice convinces me other-
either no one was in charge of or supervised the kitchen wise. There is no evidence that Minnillo, the bookkeep-
employees, or "all of us" were in charge. It is interesting er, possessed any authority over employees, and Berta
to note, however, that when several of the General testified that Minnillo had no experience in the kitchen.
Counsel's witnesses were asked if Berta had testified Thus, Berta's subsequent testimony that she took prob-
truthfully at a state unemployment compensation hearing lems brought to her by the kitchen employees to Min-
that ". . . I used to train people, new people, and check nillo is not credited. There is ample testimony that, de-
that the work was done right, and I run the place until spite some of the testimony of the General Counsel's wit-
she [Korman] got there because they open at 6 in the nesses to the contrary, Berta assigned work, oversaw the
morning, and she [Korman] gets there usually at 9:00 making of the desserts, inspected the work and required
o'clock or so," they admitted she had.6 employees to redo defective work, told them what time
I am persuaded on the totality of the record that Berta to come in, and told them when they could have their
functioned as Respondent's kitchen supervisor within the lunch breaks; that they called her when they were going
meaning of the statutory definition of Section 2(11) of to be late or miss work; and that she was in charge of
the Act. Thus, the record shows that while Berta did the inventory. For a period of time she also either kept
indeed work alongside the other kitchen employees, she or checked the timecards, and on one occasion reported
also possessed authority over them. While it is abundant- to Korman the fact that an employee had falsified a time-
ly clear on the record that from time to time Korman card. Korman terminated an independent cleaning crew
told some of the employees that more kitchen help was at Berta's request. Berta proposed that Korman pay her
needed and asked them if they had friends whom they $120 per week for the cleaning, and that she would in
could bring in, the record is equally clear that Berta ef- turn pay the kitchen employees for doing it. According-
fectively recommended the hiring of Gloria Lopez, Eva
Sanchez, Maria Skelson, Sissy Ujueta (her sister-in-law), the cleaning lists, K orman pad er 120 per wees on the lists, and on
Raquel Huerta, and that numerous other friends and rela- the cleaning sts, rotated employees on the lists, and on
tives brought in by other employees were put to work occasion asked Korman to type them. Lilia Garcia, one
right away while Berta "run the place" prior to Kor- of the General Counsel's witnesses, acknowledged that if
man's arrival. Berta was also instrumental in the hiring of something bad happened in the kitchen, they told Berta,
her husband, Luis Ujueta. Berta, the most senior of all and that Berta made decisions such as to throw products
the employees, was paid $5.50 per hour prior to her dis- away. When Korman was gone and problems arose, they
charge, a dollar more than the next two highest paid em- asked Berta, who made the decisions. There was also tes-
ployees, Ana Elsa Rodriguez and Ofelia Vasquez. The timony by Miream Gutierrez, which was unrefuted and
rest of the kitchen employees earned varying amounts which I credit, that on an occasion when Berta was on a
from the minimum of $2.90 to $4.50 per hour. While maternity leave, the kitchen employees called her at
Korman testified she also rewarded Berta with substan- home when problems arose. Gutierrez, who voluntarily
tial cash Christmas bonuses, $800 in 1978, $500 in 1977, left Respondent's employ in June 1978, testified credibly
and lesser quantities from 1973 through 1976, bonuses to that Berta was in charge of the kitchen, directed every-
other employees varied from $10 to $20 for new employ-
' Acknowledging that in July 1979 she was training Eva De La Cruz
' Raquel Gonzales, no longer employed by Respondent, identified to be a supervisor. she denied she herself was a supervisor.
Berta as her supervisor, testified everyone knew she was a supervisor and 'The usual reporting time was 6 a.m. However, there were occasions
that it was not until "the last days in which they were with the Union" when employees came in at 3, 4, and 5 a.m. Korman's usual reporting
that the employees said she was not a supervisor. time was 9 a.m.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one and told them what to do.9 Berta was the one to The evidence indicates that Berta's union activity in
whom they took their problems and who would direct early April when the first set of authorization cards was
them to redo their work if it was done wrong. In Berta's signed, was limited to informing the kitchen employees
absence, Ofelia Vasquez or Lilia Garcia would tell them of the first union meeting, to expressing her opinion that
to redo their defective work. Eva Sanchez, an employee the Union would be good for the employees, to translat-
and neighbor of Berta's, testified she asked Berta for a ing Rosen's remarks from English to Spanish, and to re-
job, and was put to work by Berta before Korman ar- sponding to employees' questions regarding the Union
rived. When she wanted to leave early, she notified and the authorization cards. Her involvement with the
Berta who responded right away whether or not she late April cards was to pass out the cards to employees
could leave. Before she started to work, Berta told San- and to tell them that the new cards were needed because
chez that she, Berta, was in charge of the kitchen. San-
the name of the Union was not complete on the first set.chez testified that Berta was in charge whether or not
d that er In this regard, it is noted that the second set of cards wasKorman was present, and that Korman never told her
what to do in the kitchen. It is clear that all employees passed out secretly, indicating to employees in any event
in the kitchen respected Berta and considered her as that Respondent did not favor the union, which it indeed
their link to management, and that management consid- did not. The record is void of any evidence which could
ered her the boss of the kitchen. In sum, contrary to the have misled the employees into believing that Respond-
General Counsel, I conclude, based on all the evidence, ent favored the Union, or that they were induced to des-
that Berta was a supervisor exercising independent judg- ignate the Union through fear of supervisory retaliation.
ment, as defined in section 2(11) of the Act. According- The courts and Board have long recognized that mild su-
ly, her inclusion in the bargaining unit would be contrary pervisory involvement in organizational activity is not
to Federal Labor policy. sufficient to undermine the validity of a union's card ma-
jority. Rather, there must be a showing of supervisory
C. The Authorization Cards participation calculated to exert substantial pressure di-
Eleven employees signed authorization cards on April rectly on those who sign. As the Fifth Circuit stated in
13, Refugio Betancourt, Lilia Garcia, Ana Veronica Gu- N.L.R.B. v. WKRG-TV, Inc., 470 F.2d 1302, 1315, 1316
tierrez, Gloria Lopez, Yolanda Martinez, Rosenda Ra- (1973):
mirez, Ana Elsa Reyes Rodriguez, Arcelia Rodriguez,
Ofelia Vasquez, Elizabeth Villanueva, and Maria It is actual pressure and coercion we are seeking to
Zepeda.2 0 The parties stipulated that, in addition to the avoid by our rule disallowing cards tainted by su-
foregoing, Lubia Gutierrez, Eva Rodriguez, and Eva pervisory influence. A mechanical rule that requires
Sanchez were employed during the period June 28 to a finding of supervisory solicitation in situations
July 11, which encompasses the date the representation . . . where there is no hint of intimidation, is too
petition was filed by the Union. Thus, if the April 13 broad.
cards were valid, the Union had authorization cards for
11 of 14 unit employees. As noted earlier, Berta was in- Before the Board ivalidates a card because of
strumental in establishing initial contact with the Union, prounion supervisory solicitation, there must be
in arranging employee meetings with the union repre- some showing that the signing employee was sub-
sentatives, and acted in the role of an interpreter at the ject to a reasonable apprehension that his failure to
April 13 meeting. She also solicited the signatures to a sign could have adverse consequences ...
second set of cards from most of the same employees be- There must be a more substantial exhibition of
tween April 25 and 27. Respondent contends that since pressure than a passing remark or statement of
Berta was a supervisor, her role in the organizing drive prounion conviction. So long as nothing in the
tainted the authorization cards so that the Union never words, deeds, or atmosphere of the alleged "solici-
obtained an uncoerced majority in the bargaining unit. tation" contains the seeds of potential reprisal, pun-
The General Counsel contends that even if Berta is a su- ishment, or intimidation, the involvement of the su-
pervisor, her participation in obtaining the cards is insuf- pervisors does not rise to the levels of supervisory
ficient to invalidate them." "solicitation" . . . .
I Mike Garai, a driver who had been terminated by Respondent in eluded as a supervisor by name. Respondent contends that the complaint
April and who testified on behalf of the General Counsel, testified that should be dismissed on the ground that the Union fraudulently induced it
Berta was in charge of the kitchen. to agree to an election. Rosen agreed, in the Stipulation for Certification
'° The April 13 cards of Ana Elsa Reyes Rodriguez, Refugio Betan- Upon Consent Election, that Berta was to be excluded as a supervisor,
court, and Gloria Lopez contain their printed names rather than their sig- intending if the Union won the election, to bargain on her behalf. While
natures. Each of the three employees testified that they read the cards the Regional Director approved the election agreement, it is well estab-
before filling them out and that each printed his name thereon. I con- lished that neither the General Counsel nor the Board is bound by posi-
elude, therefore, that they are valid designations. In any event, all three tions or stipulations taken by parties in a representation case. See, e.g..,
signed valid cards again on April 25. Elizabeth Villanueva testified that Southern Paint d Waterproofing Co., Inc., 230 NLRB 429, 436 (1977). The
she read the authorization card containing her name, and asked fellow Board recognizes the fact that parties are sometimes willing to forego the
employee Rosenda Ramirez to fill it out for her. As Ramirez was author- presence of a given employee in the unit or his vote in a tally in order to
ized to sign Villanueva's name, her card is valid. Villanueva too, signed a hold a speedy election. Such action does not, however, preclude relitiga-
second valid card on April 25. lion of the issue in a subsequent 8(aXI) or (3) unfair labor practice pro-
" The unit alleged to be appropriate at par. 7 of the complaint and the ceeding. Southern Paint. supra: Farms Fans. Inc., 174 NLRB 723 (1969);
unit described in the Stipulation for Certification Upon Consent Election Stanley Air Tools, 171 NLRB 388 (1968). Accordingly, no merit is found
differ in substance only in that, in the latter, Berta was specifically ex- in Respondent's position.
LA MOUSSE, INC. 43
Thus, the courts have rejected employer challenges to and I have given you as much as I could. The
cards based on minor supervisory participation in union Union would be an outsider-a third party-who
activities such as supervisor's signing cards, attending would only interfere with the working relationship
union meetings, transporting employees to meetings and we all have. The Union does not care about how
answering questions about the union. N.L.R.B. v. Jerome comfortable you girls and men are here. What the
T. Kane, d/b/a Kane Bag Supply Co., 435 F.2d 1203, 1207 Union does care about is getting its money. I work
(4th Cir. 1970); Clay City Beverages, Inc., 176 NLRB 680, with you on an everyday basis, and the Union
682 (1969), enfd. 434 F.2d 1315 (6th Cir. 1970); N.L.R.B. won't always be around when you need them.
v. Ozark Motor Lines, 403 F.2d 356, 358-359 (8th Cir. F. The law does not allow me to make any
1968); International Union, UA W v. N.L.R.B., 363 F.2d promises to you about the future. The law does not
702, 707 (D.C. Cir. 1966), cert. denied 385 U.S. 973. allow me to tell you my plans for the future. I
Compare: N.L.R.B. v. Hecks, Inc., 386 F.2d 317, 322-323 cannot make any promises.
(4th Cir. 1967), and Turner's Express, Incorporated v.
N.L.R.B., 456 F.2d 289, 292-293 (4th Cir. 1972). On the However, the Union can make all the promises it
wants--this is because the Union cannot make goodbasis of the foregoing facts and authorities, contrary to
the position of Respondent, I find that the authorization any of its promises and, unfortunately, the law ex-
cards are not invalid and that the Union represented a pects all of you to understand and realize this. I am
majority of Respondent's employees, 11 out of 14, from not allowed to promise you anything, but my past
and after April 13, and on June 28 as alleged in the com- experience with you have always shown concern
plaint. for you and your families' well-being.
If you still believe in the promises that the Union
D. Alleged Acts of Interference, Coercion, and has made, ask the Union to guarantee those prom-
Restraint ises in writing. The Union won't be able to do this
Paragraph 16 of the consolidated complaint alleges because it knows that their promises can't be kept.
that in the latter part of July, Korman advised employees G. Before you girls and men make up your minds
of the futility of selecting the Union by telling them she as to whether or not you want the Union, you
would never accept the Union and that if they engaged should understand the problems. Let me list a few
in a strike they would lose their jobs. The basis for this for you.
allegation is a speech that Korman read to employees in
English which was translated into Spanish by Lucien 1. Initiation fees to join the Union.
Cadji, a friend. Korman, whom I credit, testified that the 2. Monthly dues.
speech had been dictated by her attorney, and that she 3. Fines for not attending meetings.
made no statements not contained therein. The speech, 4. A strike.
Respondent's Exhibit I, reads:
H. A Strike means you will not be working for
A. The Union submitted a Petition to a govern- the Company. Under some circumstances, the Com-
ment agency called the N.L.R.B. In that Petition pany may be able to permanently replace you, which
30% of the employees here said they wanted to means you will not have a job here anymore. Under
have an election-not a Union. Therefore, I have co- other circumstances, the Company will take you
operated and there is going to be an election where back, but you won't be paid for all the time you are
everyone in the kitchen except Berta can vote. The on strike. The Union can tell you to go on strike.
voting will take place on Friday, August 31st at That will seriously disrupt your family life. The
11:00 a.m. at our shop. Company will continue to operate and the Compa-
B. What you will be voting for is whether or not ny will have workers replace you if you go out on
you want to be represented by the Union. Even if strike.
you signed cards, you do not have to vote in favor I. These are a few of the things I thought you
of the Union. A "yes" vote means you want the should think about and know. I will be sending you
Union to represent you. A "no" vote means that letters for the next few weeks further explaining my
you do not need someone else to represent you. thoughts and beliefs.
C. "Representing" means the Union will negoti-
ate on your behalf regarding your working condi- J. Please discuss the Union and your vote with
tions, but it does not necessarily mean there will be your family. Your family should also understand the
any changes; The only changes will be those I want to consequences and responsibilities of voting for the
make regardless of the Union and what it wants. Union.
D. I do not think it is good for all of us to have K. I strongly believe that you do not need the
the Union here. I am not for the Union because it Union and that your future is here with me. You do
will divide us. The Union will only take your not need to pay someone else to talk to me.
money (in monthly dues, initiation fees, and fines) L. Vote No-Vote against the Union-Keep us
and there are no guarantees that the Union will get together.
you anything. M. If you have any questions, I will be glad to
E. I have always kept an open door to all of you. answer them. However, I will answer them in a
I have always tried to help you resolve problems letter so that my answers are not misunderstood.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N. Please understand-I cannot go to your Nadine was speaking in English, and this man was
homes like the Union can, but I will keep you ad- translating to Spanish. Nadine said that she wanted
vised by meetings and letters. for us not to vote for the Union because she didn't
Please vote for me. want anybody to be-to come in between us. She
Vote against the Union. says we are like a family and she wanted to keep
Vote No. being that way, and she also said that she
wouldn't-she couldn't offer us anything, but if we
Korman testified that she told Cadji, who speaks seven didn't call the Union she could do something for us,
languages, to translate exactly as written "because that is but it wasn't a promise, and that is all I remember
the law," and that she was not allowed to say anything right now.
else. In light of testimony by several of General Coun-
sel's witnesses that additional statements were made, the After reading over a copy of the speech, Respondent's
question is raised whether Cadji made statements not Exhibit 1, Berta acknowledged that it sounded like what
contained in the written text. Cadji was not a witness. had been said. Thus, Berta failed to corroborate the
Minnillo, who is not bilingual, testified that both Korman other witnesses for the General Counsel, and corrobo-
and Cadji read from the paper each had. Lilia Garcia, rates Korman. In light of Berta's testimony, an adverse
acknowledging on cross-examination that Korman read inference based on the Respondent's failure to call Cadji
from the paper, testified on direct examination as fol- as a witness is not warranted. As I credit the testimony
lows: of Korman and Berta over that of Lilia Garcia, Ofelia
Well, Nadine spoke and the other person inter- Vasquez, and Arcelia Rodriguez, I conclude that the
preted in Spanish. It was said there about the elec- General Counsel has failed to prove paragraph 16 by a
tion, it was going to be the 31 of August, of the preponderance of the evidence and recommend its dis-
union, that the votes were going to be taken the missal.
31st of August at 11:00 o'clock in the morning. Paragraph 17 of the complaint alleges that on or about
That she did not want the union. As a favor she August 25, Fierro interrogated an employee about her
was asking us to vote no for the union, because said union activities, desires, and sympathies. Berta testified
union was not good, that it made a lot of promises she overheard Fierro, who was speaking to Gloria
but did not accomplish them, and until that day we Lopez and Eva De La Cruz, ask Lopez, "How come we
were working well as a family, that if the union wanted the Union there." Lopez, who appeared as a wit-
would come in it would not be the same, because ness for both the General Counsel and Respondent, nei-
the union was going to intervene in our persons, ther confirmed nor denied the conversation, and neither
and she as a favor was asking us to vote no for the De La Cruz nor Fierro testified.
union, because under no motive was she going to Paragraphs 18(a), (b), and (c) allege that in mid-August
accept the union. Daniel Ramirez and Carmen Fierro, Respondent's
agents, unlawfully interrogated employees, solicited their
grievances, and promised to grant them benefits in order
she was never going to accept the Union, even though to discourage support for the Union. While Respondent
we went on strike, that years and years could go by and denied the agency of Fierro and Ramirez, Korman ac-
she was not going to accept it." Further, "Nadine's deknowledged that her attorneys at that time had hired the
friend [Cadji] asked if there was someone who had beenfriend [Cadji] asked if there was someone who had been labor consulting firm of Borowski and Brushett, and that
in a union, and Eva De La Cruz answered and said she she had made Respondent's premises and employees
had been." She said that unions were not good. They
hare only good for taking munonsey." werenotood.T available to Fierro and Ramirez, who were employed by
that firm. As they were acting on Respondent's behalf inAsked to recite everything that was said at the meet- th y g
the union organizing campaign, I find they were Re-
spondent's agents within the meaning of Section 2(13) of
Well, I do not remember what she said, but I do the Act. As neither Fierro nor Ramirez testified, the
have in mind that Nadine told her friend to tell us record stands unrefuted that one or the other asked var-
that she was not going to accept the Union . . . 3 ious employees why they wanted the Union, if they had
She also said that maybe we would not go to strike, any problems at work; "what it was that we were asking
but she would not pay us the time that we would for to ask for the union"; encouraged them to speak di-
lose there, and various things, but I do not remem- rectly with Korman in order to obtain the things they
ber what. wanted, and inferred they (Ramirez and Fierro) would
seek raises for employees; asked if it was true they
Berta, fluent in both Spanish and English, was present wanted the union, and why they were not happy. The
at the meeting, and testified that: General Counsel has proven paragraphs 17, 18(a), (b)
and (c).
'1 Cadji's purported question was not alleged in the consolidated com- and (g) appear to be based on a
plaint as a violation of the Act, and this is the only witness who testified and g) appear to be based on a
Cadji asked any questions. Lacking corroboration, I do not credit the tes- conversation between Berta and Ramirez, and allege un-
timony in this regard. lawful interrogation, a promise to grant benefits in order
," Korman neither speaks Spanish, nor does the witness speak or under-
stand English. Accordingly, I do not credit her statement that "Nadine " Based on the unrefuted testimony of Berta, Lilia Garcia Yolanda
told her friend to tell us that she was not going to accept the Union." Martinez. Ofelia Vasquez, and Ana Veronica Gutierrez.
LA MOUSSE, INC. 45
to discourage union support, and a threat of unspecified Berta to report on other employees' union sympathies
reprisals if she engaged in activities in support of a and desires as alleged in paragraph 19(b), and I do not
union. Berta testified, without contradiction, that Ra- credit Berta's testimony that Korman said she would
mirez spoke to her alone; "he said because I was a super- fight the Union if it took 20 years. While Korman's testi-
visor," a fact she denied, and asked her if she knew any- mony may be susceptible to a finding that she was prom-
thing about the Union, which she also denied; that he ising a benefit to Berta in order to enlist her aid in resist-
asked why she was unhappy, and after learning why, ing the Union, such conduct would not be unlawful here
told her that one of the things about which she com- since it has been found that Berta is a surpervisor within
plained was going to be fixed. She testified he stated fur- the meaning of Section 2(11) of the Act. I therefore rec-
ther that if the employees were caught in a union meet- ommend dismissal of paragraphs 19(a), (b), and (c).
ing, "that we would be in trouble." Such statements Paragraph 13 alleges that, on or about August 25, Re-
made to an employee would be unlawful. However, as I spondent granted its employeee a morning and afternoon
have found that Berta is a supervisor within the meaning break in order to discourage support for the Union. It is
of Section 2(11) of the Act, she cannot be considered a undisputed that prior to the advent of the Union, Re-
statutory employee legally protected with respect to her spondent's employees were not authorized to take morn-
exercise of rights which Section 7 of the Act guarantees.
Accordingly, I recommend dismissal of paragraphs 18(e), g and afternoon breaks. 5 A few days before the elec-(Accordingl, I recommen' andismissal'of pa (g).aphs 18(e tion, Korman told Berta to instruct the kitchen employ-
ees to take a 10-minute break each morning and after-
Paragraphs 19(a), (b), and (c) are based upon a conver- noon. 6 In the absence of evidence demonstrating that
sation between Berta, Ramirez, and Korman, and allegesation between Berta, Ramir z, a d Korman, and aege the announcement of the granting of the breaks was gov-
a promise to grant benefits to discourage support for the
Union, a request that Berta report on other employees' erned by factors other than the pending of the election,
union sympathies and desires, and advising Berta of the the Board will regard interference with employee free-
futility of selecting the Union by saying that Respondent dom of choice as the motivating factor. See, e.g., The
would never have a union. Baltimore Catering Company, 148 NLRB 970, 973 (1964).
According to Berta, during a conversation with Ra- Respondent has failed to show the announcement was
mirez and Korman that lasted about 45 minutes, Korman governed by factors other than the pending election. Ac-
made the following statements: cordingly, I find that the timing of the announcement
was calculated to discourage support for the Union in
She said, I don't want the union to come in here, violation of Section 8(a)(1) and interfered with the elec-
and she says, you can help me because you are a su- tion.
pervisor.... So she says, what do you want? She
says, I give you one week vacation in October, and E. The Immigration Raid
I will renew your wages in January, and you will Respondent admits that its former attorney, Arbiter,
have two weeks vacation anytime you want next made arrangements for INS to conduct a survey of Re-
year . . . Before I left she says that she didn't want spondent's employees, and that the raid occurred on
the union in there, and she was going to fight even August 29, 2 days before the scheduled representation
if it took her 20 years, to fight it . . . She says to election." The evidence establishes that while Korman
ask the girls to vote no for the union, and I said Iask the girls to vote no for the union, and I said I did not know, she suspected that most of her employees
will try, but they probably wouldn't listen to me
were illegal aliens and would therefore be deported by. . .And she says, try it anyway, and I left, and
about 5 minutes later she called me into the kitchen INS. As noted earlier, Korman apparently had second
and told me to talk to the girls and give her an thoughts about the pending INS survey and, on August
answer by 3 o'clook that afternoon. 28, told Berta that she had received an anonymous call
that INS would be in the area the following day, and
Korman testified that she told Berta, "I need your help. that Berta should call the other employees and tell them
There is a campaign to organize the union. You are my not to come to work. Berta, Gloria Lopez, and Yolanda
supervisor. I want your help"; that Berta responded, Martinez all went to the union hall that evening, and
"What is a union?"; that she went on to state, "Berta, Rosen expressed the opinion that the INS would not
what is it you want? Do you want more vacation? Do conduct a survey, but that representatives of another
you want more bonus? . . . What is it you want, because government agency were coming to check records.
I want your help and you're not helping me ... . Do Thereafter, Berta called the employees she had not al-
you want 4 weeks in Guatemala?" She testified: "Be- ready contacted, and told them of Korman's message and
cause Berta was stipulated my supervisor [in the Stipula- Rosen's reaction to it. On the following morning, August
tion for Certification Upon Consent Election] and be- 29, all but two of the kitchen employees reported for
cause I was told I could talk to her as administrative, I work, the INS conducted a raid, or survey, about 7:30
said Berta, I don't want a union." She denied she asked
Berta to ask the employees to vote against the Union, '5 There is evidence, however, that they took an unauthorized break in
contending she was "asking for help" without specifying the mornings but that Korman was not aware of the fact.
the nature. Korman impressed me as the more reliable "' The instruction had apparently originated with Respondent's then-
attorney.
witness and I therefore credit her version over that of 7 It is clear that Arbiter was acting as Respondent's agent and that the
Berta. It is specifically found that Korman did not ask idea of requesting an INS raid originated with him
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a.m., and the 10 illegal aliens in the group were voluntar- the INS agents that her status did not call for deporta-
ily deported. tion. There is a bit of confusion on the part of both
Respondent contends that the INS raid, resulting in Korman and Berta regarding the sequence of events fol-
the deportation of the 10 illegal aliens, should not be the lowing Berta's return to the kitchen. I conclude on the
basis of a bargaining order since Korman had expressly basis of the testimony of Gloria Lopez, Minnillo, Raquel
directed the employees not to report for work on the Gonzalez, and Eva Sanchez, all of whom were present
day of the raid; that the complicity of the Union and the and testified to events and statements made after Berta
employees insured the success of the raid; consequently, returned to the kitchen, in addition to the testimony of
to impose a bargaining order in these circumstances Korman and Berta, that events occurred substantially as
would enable the Union and the employees to benefit by set forth hereafter. After the others had been taken out-
their own wrongdoing. Even if Respondent's role in the side by the INS agents and it was apparent they were
INS raid is found to have violated Section 8(a)(3), it is going to be taken away by the INS, they gave Berta and
argued, the policies and purposes of the Act have been Gloria Lopez the keys to their cars.18 Berta and Gloria
effectuated by the reinstatement of the employees in De- returned to the plant where the two proceeded to call
cember, and further relief in the form of backpay should the relatives of those in INS custody, Berta using the
be denied.Ibe d nied. no merit in Respondent'sargument.Minnilotes- phone in the office and Gloria the public phone in the
I find no merit in Respondent's argument. Minnillo tes-
tified, without contradiction, that Arbiter told her to ter- kitchen. After completing the calls, Berta and Gloria, ap-
minate the 10 illegal aliens picked up and deported by parently with Korman's permission, left the plant and
INS, and also Lubia Gutierrez and Maria Zepeda, nei- were observed by Minnillo getting into a Mercedes-Benz
ther of whom had reported for work the morning of the with Rosen. While Minnillo did not know who Rosen
raid. Thus, those illegal aliens who reported for work was, she speculated he was connected with the Union
were doomed, at Arbiter's direction, to be terminated for and at some point told Korman. Gloria and Berta told
having reported for work, and those employees who Rosen what happened. Rosen drove to a location several
heeded Korman's instruction not to report for work blocks away where he used a telephone. The two
were ordered by Arbiter to be dealt with in the same women apparently became tired of waiting for Rosen
manner. It is clear from the record that the termination and proceeded to walk back to the plant where several
of all 12 employees was motivated by their collective en- of the employees who had not been taken away by INS
gagement in union and/or protected concerted activities, were working. According to Gloria Lopez, when they
which resulted in the filing of the representation petition, entered the plant to go to work, Berta became irritated,
and Respondent's desire to affect the results of the Board got "very mad" and yelled insulting remarks to Korman
election scheduled for August 31. In light of Minnillo's and the others in English and Spanish. Korman's testimo-
testimony, I reject Respondent's contention that Lubia ny was as follows:
Gutierrez and Maria Zepeda were terminated for not re- Berta yelled "I will get you. I will follow you. We
porting for work. I find they were terminated because will never let you forget this." And she did it in a
Respondent believed all the Mexican nationals had en- screaming, yelling manner with a raised hand. She
gaged in organizing the Union and were responsible for used both the terms 'I' and 'we'. I didn't know if
the filing of the petition. Accordingly, I find that Re- she was referring to her husband Louis Ujueta or to
spondent violated Section 8(a)(3) of the Act by construc- gangs or to what, and I didn't ask. She was scream-
tively discharging and by discharging Lilia Garcia, Ana ing so loud, at the top of her lungs. . . She yelled
Veronica Gutierrez, Yolanda Martinez, Rosenda Ra- at me for a period of 4 minutes, and then turned
mirez, Ana Elsa Reyes Rodriguez, Arcelia Rodriguez, around and yelled at the employees, and then yelled
Ofelia Vasquez, Elizabeth Villanueva, Eva Rodriguez, at one employee in particular, in a very heated
Refugio Betancourt, Lubia Gutierrez, and Maria Zepeda debate screaming.
because of their engagement in union and/or protected
concerted activity as alleged in paragraphs 10 and 11 of Respondent contends the ahove conduct led to her dis-
the consolidated complaint, and in order to interfere charge which was for cause.
with and affect the results of the August 31 Board elec- Raquel Gonzalez, who understands but speaks little
tion. English, is no longer employed by Respondent. She testi-
F. Berta's Termination fied that Berta told Korman, "I hate you" and "you are
going to regret this that you did." Later, Berta loudly
Paragraph 12 of the consolidated complaint alleges stated in Spanish to the employees that, "whoever it was
Berta was unlawfully discharged on August 29, the day [that called INS] is going to regret it. . . . Curse the
of the INS raid. The General Counsel contends that person who did it." Berta admitted she was angry and
Berta was terminated because Korman suspected she raised her voice and had angry words with Korman in
supported the Union. Respondent claims she was termi- front of the other employees. While she testified that
nated because of threats she made against Korman on the Gloria Lopez, Eva Sanchez, Korman, Raquel Gonzalez,
day of the raid. Eva De La Cruz, and Louis Olivas were present during
The record shows that when the INS agents raided the conversation, her version lacks corroboration and is
Respondent's premises on August 29, Berta was taken
outside the premises along with the other employees, but " During the raid, Gloria had become emotionally upset, cried and
was released after she produced evidence that satisfied threw a pastry bag to the floor. Korman tried to console her.
LA MOUSSE, INC. 47
not credited. Her initial version was that after returning that he was in fact terminated for slowness and incompe-
to the kitchen she said, "Does everybody feel go[od] tence.
about it, and Nadine said to me, don't threaten me, just There is no contention that Betancourt was reinstated
leave. And I left, and I went to make some phone calls at a lower rate of pay or that he had no training or expe-
and Gloria Lopez left with me." That version was fol- rience in doing the tasks he performed upon reinstate-
lowed by "I told her that she knew about it-if she-that ment at the end of December. To the contrary, it ap-
she had called Immigration, and that if she didn't, that pears he resumed doing much the same as he had done
she knew about it, and she did that because of the Union before. In fact, there seems to have been no specific job
and all, but that it wouldn't help her because we would which was performed by any particular employee in the
be back to vote on Friday .. ." Korman's response, ac- kitchen. All of the employees appear to have been capa-
cording to Berta, was "not to threaten her, and just to ble of performing, and did perform, all of the kitchen
leave." 19 Even if some significance is attached to the fact tasks, including creammaking. While some testimony in-
that Berta was observed getting into Rosen's car shortly dicates that Betancourt's "principal job" prior to the
prior to her discharge, Gloria Lopez was observed get- August 29 termination was creammaking, the record
ting into the car too. Berta's role as the principal union makes it clear he also did other jobs in the kitchen, in-
protagonist was not known to Respondent at this time. cluding grinding cookies, breaking and separating eggs,
Why, then, was Berta terminated and Gloria Lopez not? melting chocolate, washing and drying molds, pots, and
The answer lies in Berta's conduct upon her return to dishes, helping bring in merchandise, helping clean up
the plant-the threats she made towards Korman. the kitchen, throwing out the trash, and otherwise help-
Upon the foregoing evidence, I find that Berta's termi- ing the kitchen employees. The record is also clear that
nation was not in violation of Section 8(a)(3) or (1) for Betancourt did not make the cream all of the time. Berta
the reasons that she was a supervisor within the meaning testified that "it was my week to go in early to whip the
of Section 2(11), and that her termination was for cause. cream" the week of August 29. Gloria Lopez, whom I
Accordingly, I recommend dismissal of paragraph 12 of credit, testified that Betancourt was not too good a
the consolidated complaint. worker, that he would get behind in the work, and that
the other employees would have to help him measure
G. Betancourt's Reinstatement and Subsequent and beat the creams because he was so slow. Miream
Discharge Gutierrez, no longer employed by Respondent, testified
that she had overheard Berta tell some of the other
Paragraph 14(a) alleges that, on or about December kitchen employees that Betancourt was "very slow" and
21, Betancourt was recalled to a position different from "very dumb." Korman testified that the first she realized
his former position of employment, and paragraph 14(b) Betancourt was such a slow worker was when he re-
alleges he was discharged on or about January 2, 1980, turned in December, and she asked Gloria Lopez to put
and Respondent has since failed and refused to reinstate him on the cream machine. Lopez declined to do so be-
him to his former position of employment. The General cause he was too slow.21 Korman testified that she later
Counsel contends that prior to August 29, Betancourt asked Eva Sanchezs Lopez' assistant, to put him on the
spent half of each day making (measuring and whipping) cream machine and that Sanchez also responded that he
creams and the rest of each day doing a variety of other was too slow. She testified that on the basis of her De-
tasks. She contends that when he returned in December,
he was not assigned to do the creammaking since an- the slowest working employees she had ever seen, re-
other employee made creams, and instead spent all of his gardless of age or sex, and that during the 3 days she ob-
time on a variety of other tasks. When, on his last day, served him, she asked him a number of times if he felt
he was assigned to creammaking, he worked only half a alright. She testified she made suggestions for speeding
day before he was fired, allegedly for making more up his dishwashing and drying and how to perform other
cream than was needed. The General Counsel contends tasks more efficiently, and on December 28 commenced
that Betancourt was initially given jobs which required making notes about his work. On December 28, the
him to use different skills and was not adequately in- grinding machine broke while he w as operating it On
formed of the changes in Respondent's rules about excess December 29, she "spoke to him repeatedly about his
cream when he was finally assigned to creammaking. slowness." On December 31, she informed him that his
Therefore, his reinstatement was not proper, and Re- work was unsatisfactory, that he was too slow "on
spondent's liability to him did not terminate when he re- dishes, on both washing and drying, too slow on crumbs
turned to work in December. Respondent contends that and putting on labels. I said that in one week I would
when Betancourt returned to work in December, he per- speak to him again and, if no significant improvement, I
formed substantially the same duties he had performed would have to fire him." On January 2, she made an-
before; that he was slow and not a good employee, a fact other note regarding several work deficiencies, and ter-
known to everyone but Korman, who first observed his minated him because his work was "totally incompe-
work after the December reinstatement; that Respond-
ent's motive in terminating him again was not bad, but 0 The evidence convinces me that Korman spent very little time in the
kitchen prior to August 29.
'I While Berta and Louis Ujueta denied her statements, Eva Sanchez '" Lopez was the kitchen supervisor the first day Betancourt returned
testified to other threats against Respondent's premises and Korman's car, in December: however, she was away after that because of sickness,
made that evening, during which time Eva Sanchez was in charge of the kitchen workers.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tent." Betancourt acknowledged that on January 2 he late or not work at all. It is argued that "employees are
had been assigned to do the creams and that he had not free to choose the hours or days they will work and
made an extra batch for decorating and an extra batch cavalierly disregard their responsibilities and obligations
for filling. He informed Sanchez, who was in charge of not only to the employer, but to fellow employees who,
the kitchen in Lopez' absence, and was later called to the without notice, are obligated to assume the work which
office by Korman and terminated. It is apparent from the otherwise is left undone... " Respondent argues that as
record that making creams requires no special skill, that long as the motivation is not unlawful, the discharges
everyone in the kitchen did it, including Berta, who testi- cannot be unlawful and, in any event, reinstatement is
fled she did it the final week in August. It is also clear not appropriate and does not effectuate the policies of
from the record that Betancourt was a personal friend of the Act.
the Ujuetas, lived in the same building, and that they In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
were instrumental in his employment. It is also apparent (1969), the Court upheld the Board's bargaining order
that Betancourt was a slow and inefficient employee and remedy where the only unfair labor practice shown was
that it was undoubtedly through his friendship with the the threat of plant closure. Here, the Respondent retaliat-
Ujuetas and the fact Berta was the supervisor in the ed against the protected concerted activity of its employ-
kitchen, that he was able to retain his job as long as he ees by discharging 12 employees out of a unit of 17 em-
did. In sum, I find no merit to the contention of the Gen- ployees, 10 of whom had signed valid authorization
eral Counsel that he was not reemployed or recalled to cards.22 Thus, it is seen that 59 percent of the employees
his former position of employment, which was as a in the unit were unlawfully discharged. In Ludwig Fish &
helper in the kitchen, or that he was unlawfully dis- Produce, Inc., 220 NLRB 1086, 1087 (1975), the Board
charged on January 2, 1980. I conclude on the basis of noted:
the foregoing evidence, that he was terminated on the
latter date because he was not a satisfactory employee, The pervasive effect of such egregious violations
and that but for his friendship with the Ujuetas, he cannot be gainsaid. For whether the unit is large or
would have been terminated earlier. Accordingly, I rec- small the discriminatory discharge of 40 percent of
ommend dismissal of paragraph 14. the bargaining unit employees demonstrates most
convincingly that the Respondent has resorted to its
H. Alleged Unilateral Changes and Discharges of ultimate weapon in thwarting the employees' exer-
Arauz, Badillo, and Aguirre cise of protected statutory rights.
Paragraph 20 of the consolidated complaint alleges The nature and pervasiveness of Respondent's unfair
several unilateral changes made by Respondent: labor practices, as described above, have made the hold-
(a) Alleges that in November, Respondent changed the ing of a fair election impossible, and therefore, since the
length of the morning and afternoon breaks from 10 to Union represented a majority of Respondent's employees
15 minutes each. on and after April 13, a bargaining order is necessary to
(b) Alleges that in the latter part of December, Re- remedy Respondent's unfair labor practices. As Respond-
spondent arranged for Blue Cross medical insurance ef- ent embarked on a clear course of unlawful conduct on
fective January 1, 1980. or about August 22, when it requested that INS conduct
(c) Alleges the institution of the following workrules: a raid, I conclude that a bargaining order effective that
(1) Any employee burning chocolate would be fired; (2) date will reestablish the conditions as they existed before
failure to notify Respondent 1 hour before starting time Respondent embarked on an unlawful course and placed
that an employee would be absent would result in termi- the Union in a disadvantaged position. Gissel Packing
nation; and (3) employees were not to leave money in Co., Inc., supra; Beasley Energy, Inc., d/b/a Peaker Run
the dressing room. Coal Company, 228 NLRB 93 (1977); Ludwig Fish and
The General Counsel seeks a bargaining order and Produce, Inc., supra,; Trading Port, Inc., 219 NLRB 298
argues that if one is warranted, the above changes were (1975).
unilateral and in violation of Respondent's bargaining ob- With respect to the change in the length of the morn-
ligation. It is also contended that the discharges of ing and afternoon breaks from 10 to 15 minutes each, Re-
Arauz, Aguirre, and Badillo were unlawful since the ter- spondent admits that the Union was not notified, and
minations were for violating the unilaterally established Korman testified that the reason for making the change
rule calling for discharge for failure to notify Respond- was because the employees were completing their work
ent of an absence I hour before starting time. Contend- on time. Not every unilateral change in work rules con-
ing there were additional reasons for the terminations of stitutes a breach of the bargaining obligation. In Peerless
Arauz and Badillo, Respondent admits that failing to call Food Products, Inc., 236 NLRB 161 (1978), the Board
in or report for work played a role in the termination of stated: "The change unilaterally imposed must, initially,
all three employees. Respondent points out that none of
the three had any contact or relationship to activity sur- 22 The unit employees on August 29, the date of the mass discharges.
rounding the union organizing campaign, nor did they were Betancourt, Lilia Garcia, Ana Veronica Gutierrez, Gloria Lopez,
testify at the hearing. It is argued that the record is re- Yolanda Martinez, Rosenda Ramirez, Ana Elsa Reyes Rodriguez, Arcelia
plete with testimony concerning employees calling Berta Rodriguez, Ofelia Vasquez, Elizabeth Villanueva, Maria Zepeda, all of
if they were going to be late or unable to work, thus whom had signed valid authorization cards, Lubia Gutierrez, Eva Rodri-
guez, Eva Sanchez, Louis Olivas, Adeline De La Cruz, Raquel Gonzalez,
there was a practice of calling in, and it is common sense the last three having been found by the Regional Director to have been
that an employee inform an employer if he is going to be eligible voters on August 31.
LA MOUSSE, INC. 49
amount to 'a material, substantial, and a significant' one." On December 29, 1979, this letter was read both in
I conclude and find that the change here was not materi- English and in Spanish to all employees present.
al, substantial, or signicant, and therefore recommend Further, this notice was posted in English and in
dismissal of paragraph 20(a). Spanish in our bulletin room on December 29, 1979.
The record shows that in 1978, Korman offered all Those employees not present on December 29,
employees a group health insurance plan which the 1979, will be read this letter in English and in Span-
kitchen employees turned down because it did not in- ish upon their return.
clude maternity benefits. In October, Korman reconsid-
ered the idea and on January 1, 1980, a Blue Cross group The General Counsel contends that since the written
plan was put into effect. Admittedly, there was no prior rules are stricter than the prior practice, their institution
notice to the Union. The implementation of hospitaliza- without consulting with the Union constitutes an unlaw-
tion or health insurance benefits, clearly mandatory sub- ful unilateral change. Respondent contends that the rules
jects of bargaining, cannot lawfully be granted without merely reduce to writing the Employer's past practice.
first giving the Union an opportunity to bargain. I con- While there was no written rule prior to the issuance
elude, therefore, that Respondent violated its statutory of the December 29 memo to the effect that anyone
duty to bargain with the Union over the implementation found leaving cooking materials unattended would be
of the plan as alleged in paragraph 20(b). subject to discharge, Lilia Garcia testified that there was
On December 29, Korman had read to employees and a verbal rule "to take care of the chocolate, make sure it
posted on the bulletin board the following notices direct- did not burn." The record further shows that burnt
ed to all employees: chocolate was reported to Berta, and that it had to be
thrown away. There is no evidence that anyone has ever
To: All Employees been discharged for burning chocolate or leaving cook-
From: La Mousse ing materials unattended. Korman testified that the
On Decemer 28, 1979, three pots of chocolate were reason for the posting of the rule was that on December
left unattended on the stove. The chocolate and all 28 three pots of chocolate had been left unattended and
three pots was burned and had to be thrown out. as a consequence burned at one time, which had never
Also on December 28, 1979, two large industrial happened before, and two large industrial brooms had
brooms were broken beyond repair. Therefore, this been broken beyond repair. No brooms had ever been
is to notify all employees that any employee found broken before.
leaving cooking materials unattended, including ma- With respect to the memo advising employees they
terial in the Hobart mixers, will be subject to imme- were subject to discharge for failure to call in within an
diate discharge. hour from the start of the workday if the employee was
If, for any reason, an employee is unable to come to going to be absent or late, it is abundantly clear, and
work, he or she is to call in within one hour from Berta so testified, that employees were aware they were
the start of the work day. If, for any reason, an em- to call in, and that "they always did." Korman testified
ployee is going to be late work, he or she is to call "they always would call in within an hour, or a half
in within one hour from the start of the work day. hour. They just did. Or so Berta told me. Berta received
Failure to comply will subject the employee to im- the phone calls." The record shows that employees had
mediate discharge. in fact been terminated for failure to call in.
The purpose for the December 29 notice which the
On December 29, 1979, this letter was read both in complaint characterizes as a rule that "employees were
English and in Spanish to all employees present. not to leave money in the dressing room," is spelled out
Further, this notice was posted in English and in in the first paragraph; i.e., money had been stolen from
Spanish in our bulletin room on December 29, 1979. an employee's purse which had been left in the dressing
Those employees not present on December 29, room. Korman testified that there had in fact been two
1979, will be read this letter in English and in Span- thefts, one on December 28 and one on December 29,
ish upon their return. Eva Sanchez had lost S170 cash and Esperanza Tirado
To: All Employees had lost $40 cash. The record shows prior theft of
From: La Mousse money, and that in one instance the suspected employee
At 6:00 A.M. on December 29, 1979, an employee quit her employment right away. The General Counsel's
reported to me the loss of money from her purse, distinction between the prior practice and the notice in
which was located in the dressing room on De- the memo is, "the written rule stated that anyone touch-
bember 28, 1979. ing or disturbing another's property would be terminated
whereas prior practice was that anyone found stealing
This letter is to notify all employees that at no time would be immediately terminated."
are they to leave anything of value in their purses I conclude and find that Respondent has demonstrated
or in the dressing room. All money, jewelry, credit justifying circumstances for issuing the December 29 no-
cards, and any other valuable property are to be tices. There is no indication that they were discrimina-
kept on their person at all times. torily motivated as retaliation against the employees for
Any employee found disturbing or touching another any protected activities, nor that they in any way under-
person's personal property will be immediately dis- cut the Union's representative status. Absent discrimina-
charged. tion, an employer is free to choose more efficient and de-
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pendable methods for enforcing its workplace rules. not have a hair net;24 that on December 26 she received
Bureau of National Affairs, Inc., 235 NLRB 8 (1978). three personal telephone calls, and on December 27 one
Moreover, the publication of the rules does not represent personal call, all received, according to Korman, during
a "material, substantial, and significant change" constitut- working hours which meant a loss of time for two indi-
ing a breach of the bargaining obligation. Peerless Food viduals, Gloria Lopez, who went to answer the phone,
Products, Inc., supra. and the time Arauz spent in talking. Near the end of De-
Having found that the publication of the December 29 cember, Arauz asked for a day off, which was granted.
memorandum informing employees that they were sub- The following day she neither called in nor showed up
ject to discharge for failure to call in within an hour for work. The next day, when she came in to work she
from the start of the workday if they were going to be reported as the reason for not calling in the previous day
late or absent, did not constitute an unlawful unilateral that she had run out of gas the day before. She was
change, it follows that the discharges of Arauz, Aguirre, asked and acknowledged that she knew about the re-
and Badillo for that reason did not violate Section 8(a)(1) quirement that employees call in when they were going
of he Act as contended by the General Counsel. The cir- to be late or absent from work. She was then terminated.
cumstances surrounding their terminations, however, are Contrary to the General Counsel, I find all three em-
discussed herein. ployees were terminated for cause and recommend dis-
Badillo, who also used the name Mario Garcia, missal of paragraph 21.
Aguirre, nor Arauz testified. Thus, Korman's testimony
regarding their discharges is not refuted. The record v. THE CHALLENGES
shows that Badillo was a slow worker, a fact discussed
with him on several occasions. On December 28, he re- Having found that Berta Ujueta was a supervisor
ceived his "third and final warning before termination," within the meaning of Section 2(11) of the Act, I recom-
because he was so slow. On December 29 Badillo called mend that the challenge to her ballot be sustained.
in that he would not be in that day because of car trou- Having found that Ofelia Vasquez, Ana Veronica Gutier-
ble on the freeway but that he would be in Monday, De- rez, Ana Elsa Rodriguez, and Arcelia Rodriguez were
cember 31. He failed to either show up or call on De- unlawfully discharged on August 29, I recommend the
cember 31.23 After missing approximately 5 days of challenges to their ballots be overruled.
work, Badillo appeared one morning at 11 o'clock
Korman testified she thought he had quit. She asked the vI. PETITIONER'S OBJECTIONS
reason he had not appeared and he informed her that he Objection 3 alleges that prior to the election, Respond-
had been "in jail and something about a car crash." She ent granted benefits to the employees in order to impinge
terminated him for failure to call in. On April 1, 1980, upon their freedom of choice and to encourage them to
the California Employment Development Department vote against the Union. Having found that Respondent's
issued a decision finding: instruction on or about August 25 to the kitchen employ-
You were discharged for absence from work. You ees to take a 10-minute break each morning and after-
were unable to report to work because you were in- noon was calculated to discourage support for the Union
carcerated; however, you did not notify your em- and interfered with the election, I recommend that Ob-
ployer of your situation, although you could have jection 3 be sustained.
done so. Therefore, it must be held that you[r] dis- Objection 4 alleges that Respondent interrogated em-
charge was for actions detrimental to the employ- ployees and conducted surveillance of its employees to
er's interest. determine the extent of their support for the Union.
Having found that in mid-August Fierro and Ramirez
Korman characterized Aguirre as an "excellent unlawfully interrogated employees about their union
worker." The record shows that on December 28 sympathies and desires, I recommend that Objection 4 be
Aguirre overslept and failed to call in or show up until sustained. 25
2:30 p.m. when he came in to pick up his check. On De- Objection 5 alleges the unlawful discharge of Berta
cember 29, he again overslept and did not come in until and 11 employees in order to discourage membership in
10 a.m. Korman accepted as an excuse for failing to call the Union and to interfere with concerted, protected ac-
in the fact that Gloria Lopez had given Aguirre the tivities. In light of my findings regarding the unlawful
wrong telephone number to call. On Monday, December discharge of the 12 employees as alleged in paragraphs
31, Aguirre again failed to call or show up for work. I 1(a) and (b), I recommend that Objection 5 be sus-
After he failed to call in or report for work on January tained.
2, Korman terminated him. Objection 6 alleges that Respondent failed to post the
Korman testified that Arauz was a slow worker and a official board notices in Spanish and English in conspicu-
slow learner. Notes placed in her employee file show ous locations and for the time period required. The Gen-
that on October 18, her slow performance was discussed eral Counsel's witnesses who testified on this subject,
with her; that on December 3, she had shown improve- claimed that only the English version of the Board's
ment, but "she seems to be a slow learner"; that she was
absent on December 19; that on December 27, she did 24 Apparently employees working with food products are required by
law to wear hairnets.
25 The Christmas-New Year Holidays are Respondent's busiest time of 25 No showing has been made, however, that Respondent engaged in
the year. surveillance as alleged.
LA MOUSSE, INC. 51
notice of election was posted. Korman testified that both 5. By granting employees a morning and afternoon
English and Spanish versions of the notice were posted break in order to discourage support for the Union, Re-
in three locations, and that they remained posted until spondent violated Section 8(a)(l) of the Act.
after the election. The Board agent who conducted the 6. By interrogating employees regarding their union
election did not contend there was any irregularity with activities, desires and sympathies; by soliciting their
respect to the posting. Minnillo, who is no longer em- grievances, and by promising to grant them benefits in
ployed by Respondent, testified that two sets of notices order to discourage their suppport for the Union, Re-
(Spanish and English) were posted by Korman in the spondent violated Section 8(a)(1) of the Act.
kitchen and by the timeclock, both locations visible from 7. By unilaterally granting employees medical insur-
her desk. Gloria Lopez and Eva Sanchez testified they ance coverage at a time when the Union represented a
only read the center portion of the notice, which was in majority of Respondent's employees in an appropriate
Spanish. Raquel Gonzalez thought a Spanish notice was collective-bargaining unit, Respondent violated Section
posted, but was not sure if there was an English version. 8(a)(1) of the Act.
Respondent's witnesses testified that only the notice in 8. All full and regular part-time employees employed
English was posted, but that the center portion was in by Respondent at its location at 11150 La Grange
Spanish. It is clear from an examination of both the Eng- Avenue, Los Angeles, California; excluding all delivery
lish and Spanish notices, that the center portion of both employees, office clerical employees, guards and supervi-
is identical, the left side in English, the right side in sors as defined in the Act, constitutes a unit appropriate
Spanish, both setting forth the unit, inclusions and exclu- for the purposes of collective bargaining within the
sions, and the time and place of the election. Below meaning of Section 9(b) of the Act.
each, in both Spanish and English, is a sample copy of 9. On or about April 13, 1979, and at all times thereaf-
the ballot. As noted earlier, I am convinced that the ter, the Union represented a majority of the employees in
General Counsel's witnesses tailored their testimony re- the above-appropriate unit, and has been the exclusive
garding the notices to insure a new election. The fact re- representative of all said employees for the purpose of
mains, however, that five of those who had been deport- collective bargaining within the meaning of Section 9(a)
ed to Mexico on August 29, made it back to vote at the of the Act.
August 31 election, which convinces me they were not 10. Respondent's unfair labor practices were so perva-
unaware of the legend on the election notices. In light of sive that they are disruptive of the election process, pre-
my credibility findings, I recommend that Objection 6 be cluding a fair election and warranting an order to bar-
overruled. gain.
On the basis of the foregoing facts, I find that the elec- 11. The above-described unfair labor practices affect
tion should be set aside, and I so recommend. I conclude commerce within the meaning of Section 2(6) and (7) of
further, as more fully described above, that Respondent's the Act.
unfair labor practices are pervasive so as to prevent the 12. Respondent has not committed any other unfair
holding of a free election and that, consequently, a bar- labor practices alleged in the consolidated complaint.
gaining order based on a card count is warranted. Thus,
I recommend to the Board that the petition in Case 31- THE REMEDY
RC-4550 be dismissed and that all prior proceedings held
thereunder be vacated in view of the remedy requiring Having found that Respondent has engaged in certain
recognition and bargaining based on a card majority, unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
CONCLUSIONS OF LAW designed to effectuate the policies of the Act. To the
extent that Respondent has not already done so, I shall
I. The Union is a labor organization within the mean- recommend that Respondent be required to offer Lilia
ing of Section 2(5) of the Act. Garcia, Ana Veronica Gutierrez, Yolanda Martinez, Ro-
2. Respondent is an employer engaged in commerce senda Ramirez, Ana Elsa Reyes Rodriguez, Arcelia Ro-
within the meaning of Section 2(6) and (7) of the Act. driguez, Eva Rodriguez, Ofelia Vasquez, Elizabeth Vil-
3. By requesting the Immigration and Naturalization lanueva, Maria Zepeda, and Lubia Gutierrez immediate
Service to conduct a raid to investigate which of Re- and full reinstatement to their former jobs or, if those
spondent's employees were undocumented aliens, be- jobs no longer exist, to substantially equivalent positions,
cause of their support for the Union, Respondent caused without prejudice to their seniority and other rights and
the arrest and deportation of Refugio Betancourt, Lilia privileges, and make them, together with Refugio Betan-
Garcia, Ana Veronica Gutierrez, Yolanda Martinez, Ro- court, whole for any loss of earnings they may have suf-
senda Ramirez, Ana Elsa Reyes Rodriguez, Arcelia Ro- fered by reason of Respondent's discrimination against
driguez, Eva Rodriguez, Ofelia Vasquez, and Elizabeth them, by payment of a sum of money equal to that
Villanueva, thereby constructively discharging them in which they normally would have earned as wages from
violation of Section 8(a)(3) and (1) of the Act. the date of their discharge on August 29, 1979, to the
4. By discharging Maria Zepeda and Lubia Gutierrez date of said offer of reinstatement, less their respective
because Respondent believed they had engaged in union net earnings during such period, with backpay computed
and protected concerted activities, Respondent violated on a quarterly basis in the manner established by the
Section 8(a)(3) and (1) of the Act. Board in F. W. Woolworth Company, 90 NLRB 289
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1950), with interest thereon as set forth in Florida Steel Local 453, AFL-CIO, as the exclusive collective-bar-
Corporation, 231 NLRB 651 (1977).26 gaining representative of all the employees in the afore-
It having been found that the nature and pervasiveness said appropriate unit and, if an agreement is reached,
of Respondent's unfair labor practices have made the embody such agreement in a written, signed agreement.
holding of a fair election impossible, I shall recommend (b) To the extent that Respondent has not already
that Respondent cease and desist from engaging in such done so, Respondent shall offer Lilia Garcia, Ana Ve-
unlawful conduct and bargain with the employees desig- ronica Gutierrez, Yolanda Martinez, Rosenda Ramirez,
nated collective-bargaining representative, Bakery, Con- Ana Elsa Reyes Rodriguez, Arcelia Rodriguez, Eva Ro-
fectionery & Tobacco Workers International Union, driguez, Ofelia Vasquez, Elizabeth Villanueva, Maria
Local 453, AFL-CIO. Zepeda, and Lubia Gutierrez, immediate and full rein-
Because of the character of the unfair labor practices statement to their former jobs or, if those jobs no longer
found herein, I shall recommend that Respondent cease exist, to substantially equivalent positions, without preju-
and desist from in any manner interfering with, restrain- dice to their seniority or other rights and privileges pre-
ing, and coercing employees in the exercise of their viously enjoyed.
rights guaranteed in Section 7 of the Act. (c) Make whole each of the employees as set forth
It is also recommended that Respondent make availa- above, together with Refugio Betancourt, for any loss of
ble to the Board, upon request, all payroll and other re- pay each may have suffered by reason of Respondent's
cords to facilitate checking the amount of backpay due. unlawful discrimination, for the period commencing
Upon the foregoing findings of fact, conclusions of August 29, 1979, to the date of reinstatement or offer of
law, and the entire record, and pursuant to Section 10(c) reinstatement, in the manner set forth in the section enti-
of the Act, I hereby issue the following recommended: tied "The Remedy."
(d) Preserve and, upon request, make available to the
ORDER2 7 Board or its agents, for examination and copying, all
The Respondent, La Mousse, Inc., Los Angeles, Cali- payroll records, social security payment records, time-
fornia, its officers, agents, successors, and assigns, shall: cards, personnel records and reports, and all other re-
1. Cease and desist from: cords necessary to analyze the amount of backpay due
(a) Discharging or causing the constructive discharge under the terms of this Order.
of employees by requesting the Immigration and Natural- (e) Post at its Los Angeles plant, copies of the at-
ization Service to investigate which employees are undo- tached notice marked "Appendix."
2 8 Copies of said
cumented aliens, because of their support for Bakery, notice, on forms provided by the Regional Director for
Confectionery &8 Tobacco Workers International Union, Region 31, after being duly signed by an authorized rep-
Local 453, AFL-CIO, or any other Union. resentative of Respondent, shall be posted by Respond-
(b) Dicharging employees because we believe they en- ent immediately upon receipt thereof, and be maintained
gaged in union or protected concerted activities. by it for 60 consecutive days thereafter, in conspicuous
(c) Granting employees benefits in order to discourage places, including all places where notices to employees
support for the Union. are customarily posted. Reasonable steps shall be taken
(d) Interrogating employees regarding their union ac- by Respondent to insure that said notices are not altered,
tivities, desires, and sympathies. defaced, or covered by any other material.
(e) Soliciting grievances from employees, or promising (f) Notify the Regional Director for Region 31, in
to grant them benefits in order to discourage their sup- writing, within 20 days from the date of this Order, what
port for the Union. steps Respondent has taken to comply herewith.
(f) Refusing to recognize and bargain with the Union IT IS FURTHER ORDERED that the complaint be dis-
as the exclusive collective-bargaining representative of missed insofar as it alleges violations of the Act not
all the employees in the above-described unit. found herein, specifically paragraphs 12, 14(a) and (b),
(g) Unilaterally granting benefits to employees at a 16, 18(d), (e), (f), and (g), 19(a), (b), and (c), 20(a), (c),
time when the Union represents a majority of Respond- and (d), and 21.
ent's employees in an appropriate collective-bargaining
unit. e2 In the event that this Order is enforced by a Judgment of a United
unit. .In anyothr mnnr itererng ithStates Court of Appeals, the words in the notice reading "Posted by
(h) In any other manner interfering with, restraining, Order of the National Labor Relations Board" shall read "Posted Pursu-
or coercing its employees in the exercise of rights guar- ant to a Judgment of the United States Court of Appeals Enforcing an
anteed by Section 7 of the Act. Order of the National Labor Relations Board"
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act: APPENDIX
(a) Upon request, recognize and bargain with Bakery,
Confectionery & Tobacco Workers International Union, NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). NATIONAL LABOR RELATIONS BOARD
: In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the An Agency of the United States Government
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and We will not discharge or cause the constructive
become its findings. conclusions. and Order, and all objections thereto
shall be deemed waived for all purposes. discharge of employees by requesting the Immigra-
LA MOUSSE, INC. 53
tion and Naturalization Service to investigate which All full and regular part-time production employ-
of our employees are undocumented aliens, because ees employed by us at our location at 11150 La
of their support for Bakery, Confectionery & To- Grange Avenue, Los Angeles, California, exclud-
bacco Workers International Union, Local 453, ing all delivery employees, office clerical employ-
AFL-CIO, or any other union. ees, guards and supervisors as defined in the Act.
WE WILL NOT discharge employees because we
believe they have engaged in union or protected WE WILL offer each of the employees named
concerted activities. below, to the extent that we have not already done
WE WILL NOT grant benefits to employees in so, immediate and full reinstatement to their former
order to discourage their support for the Union. jobs or, if those jobs no longer exist, to substantially
WE WILL NOT interrogate employees regarding equivalent jobs, without prejudice to their seniority
their union activities, desires, or sympathies. and other rights and privileges previously enjoyed,
WE WILL NOT solicit grievances from employees and make whole each of said employees, together
or promise to grant them benefits in order to dis- with Refugio Betancourt, for any loss of pay each
courage their support for the Union. may have suffered by reason of our discrimination
WE WILL NOT unilaterally grant benefits to em- against each of them, for the period commencing
ployees at a time when the Union represents a ma- August 29, 1979, to the date of reinstatement or
jority of our employees in an appropriate collective- offer of reinstatement, with interest:
bargaining unit, without first bargaining thereon
with the Union. Lilia Garcia Ana Elsa Reyes
WE WILL NOT in any other manner interfere Ana Veronica Rodriguez
with, restrain, or coerce our employees in the exer- Gutierrez Arcelia Rodriguez
cise of rights guaranteed them by Section 7 of the Lubia Gutierrez Eva Rodriguez
Act. Yolanda Martinez Ofelia Vasquez
WE WILL, upon request, bargain collectively with Rosenda Ramirez Elizabeth Villanueva
Bakery, Confectionery & Tobacco Workers Interna- Maria Zepeda
tional Union, Local 453, AFL-CIO, as the exclu-
sive collective-bargaining representative of all the
employees in the bargaining unit described below All our employees are free to become or remain, mem-
with respect to rates of pay, wages, hours of em- bers of Bakery, Confectionery & Tobacco Workers In-
ployment, and other conditions of employment and, ternational Union, Local 453, AFL-CIO, or any other
if an agreement is reached, embody such agreement labor organization.
in a written signed agreement. The bargaining unit
is: LA MOUSSE, INC.