La Reina, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1986

279 N.L.R.B. 791 (N.L.R.B. 1986)

LA REINA, INC
La Reina, Incorporated and Local 37, Bakery, Con-
fectionery & Tobacco Workers International
Union, AFL-CIO, CLC and Romona Mejia and
Marcela Enriquez . Cases 21-CA-22993, 21-
RC-17354, 21-CA-23042 and 21-CA-23069
30 April 1986
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 30 September 1985 Administrative Law
Judge Gordon J. Myatt issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and Petitioner and Charging Party
Local 37, Bakery, Confectionery & Tobacco
Workers International Union AFL-CIO, CLC
(Local 37) filed an opposition to the exceptions.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and op-
position thereto, and has decided to affirm the
judge's rulings, findings,2 and conclusions and to
adopt the recommended Order.
' In its opposition to the Respondent's exceptions, Local 37 contends
that the exceptions should be rejected because they fail to comply with
Sec 102 46(b) of the Board's Rules and Regulations in that they do not
set forth specifically the portions of the judge's decision to which excep-
tions are taken and they do not designate by precise citation of page the
portions of the record relied on Although the Respondent's exceptions
do not conform in all particulars with Sec 102 46(b), they are not so defi-
cient to warrant striking Moreover, the Charging Party has not shown
prejudice as a result of any deficiency In light of all these circumstances,
the Charging Party's motion is denied
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent argues that the judge erred in finding that its stricter
enforcement of the clothing rule violated the Act It argues that its rule is
required by state statute We agree with the judge 's finding of a violation
The legitimacy of the rule and the Respondent's right to have discipli-
nary rules in general (and to enforce them) are beyond peradventure and
are not in question What is at issue is the Respondent 's stricter enforce-
ment of the rule in February 1984 after the union election We are satis-
fied with the judge 's conclusion that the stricter enforcement of the rule
at that time was the result of the employees ' union activities and violated
the Act
In the absence of exceptions , Chairman Dotson and Member Dennis
adopt pro forma the judge's overruling of the Union's Objection 2
The judge found that certain statements made by A Robles to employ-
ee Sanchez violated Sec 8(a)(1) and (3) This was apparently an inadvert-
ent error because in his conclusions of law , the judge properly found that
the statements violated only Sec 8(a)(l)
791
ORDER
The National Labor Relations Board adopts the
recommended order of the administrative law
judge and orders that the Respondent, La Reina,
Incorporated, Los Angeles, California, its officers,
agents , successors, and assigns , shall take the action
set forth in the Order.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for Local 37, Bakery, Con-
fectionery & Tobacco Workers International
Union, AFL-CIO, CLC and that it is not the ex-
clusive representative of these bargaining unit em-
ployees.
Salvador Sanders, Esq., for the General Counsel.
Paul Connolly, Esq., of Monterey Park, California, for
the Respondent Employer.
Anthony R. Segall, Esq. (Reich, Adell & Crost, PC), of
Los Angeles, California, for the Union Petitioner.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. On
charges filed against La Reina , Incorporated (Respond-
ent) by Local 37, Bakery, Confectionery & Tobacco
Workers International Union, AFL-CIO, CLC (Union),
Ramona Mejia , and Marcela Enriquez, respectively, the
Acting Regional Director for Region 21 issued an
amended consolidated complaint and notice of hearing'
on 27 June 1984.2 In addition, the Union filed timely ob-
jections to conduct alleged to have affected the results of
a Board-conducted election in Case 21-RC-17354 for
union representation of a unit of Respondent's employ-
ees. The Acting Regional Director for Region 21 dis-
missed one of the objections and referred the other for
hearing with the consolidated unfair labor practice cases.
The amended consolidated complaint alleges, among
other things that Respondent violated Sections 8(a)(1)
and (3) of the National Labor Relations Act. Specifical-
ly, the amended consolidated complaint alleges Respond-
ent, through alleged supervisors and agents: (1) unlawful-
ly laid off employees and refused to recall one of the
laid-off employees because of their union activities; (2)
unlawfully refused to allow an employee to return to
work after an absence ; (3) unlawfully transferred em-
ployees to a less desirable work shift; (4) created an im-
pression of surveillance of employees' union activities;
(5) threatened to discharge employees engaged in union
activities; (6) imposed more stringent enforcement of
' In the onginal caption of the consolidated cases, Ascencion Diaz was
listed as the Charging Party in Case 21-CA-23148 At the hearing, how-
ever, a withdrawal request from Diaz was submitted and the parties, by
stipulation , moved to dismiss all references to Diaz in the consolidated
complaint This motion was granted
8 Unless otherwise indicated , all dates herein refer to the year 1984
279 NLRB No. 103
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work rules because employees engaged in union activi-
ties ; and (7) unlawfully interrogated employees about
their own union activities and sympathies and those of
other employees . At the hearing counsel for the General
Counsel further amended the complaint to allege addi-
tional acts of unlawful conduct by alleged supervisors
and agents of the Respondent.
The Respondent filed an answer in which it admitted
certain allegations of the consolidated complaint , denied
others, and specifically denied the commission of any
unfair labor practices. The Respondent also denied it
committed any of the alleged unfair labor practices as-
serted in the oral amendments to the consolidated com-
plaint.
A hearing was held in this matter in Los Angeles,
California, on 11, 12, 13, and 14 September 1984. All
parties were represented by counsel and afforded full op-
portunity to present material and relevant evidence on
the issues and to examine and cross -examine witnesses.
Briefs were submitted by all parties and have been duly
considered.
On the entire record in this case and on my observa-
tion of the witnesses while testifying , I make the follow-
ing
FINDINGS OF FACT
1. JURISDICTION
The parties stipulated , and I find , Respondent is en-
gaged in the business of the manufacture of flour tortillas
and operates a facility located in Los Angeles , California.
In the course and conduct of its business operations, Re-
spondent annually sells and ships goods and products
valued in excess of $50,000 directly to customers located
outside the State of California . On the basis of the above,
I find Respondent is, and has been at all times material
an employer within the meaning of Section 2(2) engaged
in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
Respondent 's answer denies the Union is a labor orga-
nization within the terms of the Act. The unrefuted testi-
mony of Arturo Silva, business representative of the
Union, discloses the Union has collective-bargaining
agreements with and represents units of employees at
many major bakeries in the Los Angeles area . Further,
that the Union administers the terms of these collective-
bargaining agreements , handles grievances and arbitra-
tions on behalf of the employees it represents , has a con-
stitution and bylaws and collects periodic dues from its
members , has officers elected periodically by its member-
ship, and provides health and welfare benefits for its
members . Thus, it is evident that the Union "exists for
the purpose , in whole or in part , of dealing with employ-
ers concerning grievances , labor disputes , wages , rates of
pay, hours of employment , or other conditions of em-
ployment" as set forth in Section 2(5) of the Act. Predi-
casts, Inc., 270 NLRB 1117, 1122 (1984); Ana Colon, Inc.,
266 NLRB 611, 612 (1983). Accordingly, I find the
Union is a labor organization within the meaning of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
As noted , Respondent produces and sells flour tortillas
to various customers . Respondent markets its products
nationwide . The record reveals that Respondent's pro-
duction facility operates with two work shifts and the
workweek is from Sunday through Friday. The day shift
does not commence until 1 or 2 , or sometimes 3 p m.-
depending on the production schedule for a given day.
The day shift ends at 11 p.m . and the night shift starts at
that time. The night shift ends at approximately 8 a.m.
the following morning , at which time a cleanup crew
comes in to clean and scrub the machines and floor. The
work of the cleanup crew is completed by the time the
day shift arrives in the afternoon.
The unrefuted testimony indicates there are approxi-
mately 92 production employees on each shift and ap-
proximately 20 employees working on the cleanup crew.
There is only one foreman on each shift directly super-
vising the work of the production employees.
Productionwise, the dough is formed into small balls
and passed along a belt to employees working as stretch-
ers. These employees stretch the dough to the desired
shape and size and then the product passes through
ovens where it is baked The baked tortillas pass from
the ovens to employees working as counters The
counters take the prescribed number of tortillas and
place them into plastic bags , which then pass on to the
sealing machine at the end of the belt . The sealed prod-
uct is packed into containers which are subsequently
stacked on pallets at the end of the production line.
When a pallet is full , it is moved by means of a pallet
jack to the shipping or dock area for shipment to Re-
spondent 's customers.
B. The Supervisory and Agency Issues
The amended consolidated complaint alleges certain
individuals employed by Respondent are supervisors and
agents within the meaning of the Act and Respondent
denies these allegations . Because the determination of the
status of these individuals is material to the discussion of
the events alleged in the substantive allegations of the
complaint , it is necessary to resolve these issues at the
initial stage of this decision
1. Daniel Robles
Daniel Robles (D. Robles) is a vice president and one
of the family members that own Respondent He is Re-
spondent 's chief of production By his own admission, he
determines the number of employees that have to be laid
off when he is notified by his brother, Rogelio Robles
(vice president in charge of administration and sales) that
business conditions warrant a decrease in the production
force. Although D. Robles delegates the selection of the
employees to be laid off to a lower level management of-
ficial, he determines the number that will be affected. It
is more than evident , and requires no citation , that D.
Robles is a high -level management official with an own-
ership interest in Respondent and that he directs the
work of the production employees; albeit not on an first-
LA REINA, INC
level basis. Accordingly, I find D. Robles is an agent and
supervisor of Respondent within the meaning of the Act.
2. Jose Luis Martinez
It is unrefuted that Martinez was personnel manager
for the Respondent unitl 27 February 1984. As such, he
was the mid-level management official who hired em-
ployees and, when instructed by D. Robles, determined
which employees would be laid off on a long-term
basis.3 Martinez acknowledged he, as personnel manager,
terminated employees for various reasons, including fail-
ure to submit medical excuses for absences and submit-
ting false medical excuses . The unrefuted testimony also
establishes that Martinez met penodically with the mem-
bers of Respondent 's management group to formulate de-
cisions regarding the business operations of the Respond-
ent.
It is apparent from the foregoing that when Martinez
was personnel manager of Respondent, he was a supervi-
sor within the meaning of the Act. He exercised inde-
pendent judgment in hiring and discharging employees
and functioned as a member of Respondent's managerial
team. Accordingly, I find the record fully establishes
that Jose Luis Martinez was a supervisor and agent of
Respondent under the terms of the Act.
3. Alfonso P. Robles
Alfonso Robles (A. Robles) is a brother of D. and R.
Robles4 and, according to his testimony, one of the
founders of Respondent. A. Robles formerly had been
the personnel manager for Respondent but apparently
ceased his active participation in the operation of the
business 12 years prior to December 1983. On 20 Decem-
ber 1983 he returned to the business as chief of quality
control with the responsibility for improving the quality
of Respondent's product. Admittedly, one of the ways he
accomplished this was by making certain the work per-
formance of the production employees met the standards
Respondent felt necessary to produce a quality product.
A. Robles replaced Martinez as personnel manager on 27
February5 and remained in that position until he left his
employment with Respondent on 13 August.
Although A. Robles denied he exercised supervisory
authority over the production employees while chief of
quality control, the record testimony is to the contrary.
The unrefuted testimony of Beatriz Sanchez discloses
that A. Robles, while chief of quality control, observed
an employee working too slowly on the line and instruct-
ed the shift foreman to replace her with Sanchez. This
direction from A. Robles was carried out by the foreman
9 The record discloses that the term `layoff' was used liberally by all
witnesses to describe two distinct types of interruption in employment In
the more conventional sense , the term was applied to layoffs over a long-
term period caused by a decrease in production demands The expression
was also used , however, to describe days off given to employees during
the normal workweek , when Respondent tailored its work force to
weekly production needs This occurred on Tuesday and Friday of each
workweek The shift foremen selected the employees who would not be
required to work on those days and posted their names on the bulletin
board
4 Another brother, Maro Robles, is president of Respondent
5 Martinez was transferred to the sales department at that time
793
and Sanchez was ordered to replace the offending em-
ployee. A. Robles' own testimony reveals that he made
effective recommendations concerning the work assign-
ments of production employees. Robles stated that when-
ever he observed an employee failing to perform the
work properly, he would request that the foreman place
the employee on another operation and this request
would be carried out. According to Robles, this oc-
curred on a daily basis when he functioned as chief of
quality control.6 While Robles stated he did not person-
ally reprimand any employee whose work performance
he found lacking, he admitted that he would first speak
"in a friendly manner" to the employee and if the em-
ployee's performance did not improve, he would make a
recommendation to the foreman to take corrective
action. He further acknowledged that on one occasion he
observed Beatriz Sanchez constantly talking to other em-
ployees while working. He reported this incident directly
to Martinez, who in turn stated that he would see about
the problem.
There is no question that after he assumed the duties
of Martinez on 27 February, A. Robles was an agent and
supervisor of Respondent with authority to hire, dis-
charge, and reprimand employees based on the exercise
of his own independent judgment. I also find, however,
that while chief of quality control, A. Robles possessed
and consistently exercised authority to check the work
and make effective recommendations to change work as-
signments of employees he determined were guilty of
poor work performance His duties in this regard were
not simply one of ensuring the quality of the product but
also encompassed the exercise of effective recommenda-
tions concerning employee work assignments.' In addi-
tion, the record establishes that the employees considered
A. Robles to speak on behalf of and to reflect the views
of Respondent' s management because of his fraternal re-
lationship with the owners of Respondent. See Marchese
Metal, 270 NLRB 293 (1984); Indian Head Lubricants,
261 NLRB 12 (1982).
On the basis of the foregoing, I find that A. Robles
was vested with and exercised one of the enumerated
functions of supervisory authority listed in Section 2(11)
of the Act. I further find this authority was sufficient to
confer upon him the status of a supervisor. Moreover, I
find his fraternal relationship with the owners of Re-
spondent, in conjunction with his duties as chief of qual-
ity control, establishes that he was an agent acting on
behalf of Respondent.
4. Antonio Sandoval
Sandoval is Respondent' s general manager with re-
sponsibility for construction, insurance , and financial
management . As general manager , Sandoval is part of
and meets with Respondent's executive group; he reports
directly to Vice President R. Robles . It is readily appar-
ent, therefore, that Sandoval is part of Respondent's
6 Robles testified he divided his time between both work shifts at Re-
spondent's facility
7 Cf Cobra Gunskin , 267 NLRB 264, 267 ( 1983) (quality control in-
spector found not to exercise supervisory authonty)
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
management hierarchy and is an agent and supervisor
within the meaning of the Act.
5. Juventino Orozco
Orozco is the day-shift foreman.8 As perviously noted,
there are approximately 92 employees on each shift and
only one foreman assigned to supervise them. The un-
controverted testimony discloses that Orozco makes the
work assignments for the employees on his shift, grants
or refuses employee requests for time off, independently
determines which employee on his shift will be sched-
uled for the weekly layoffs which occur on Tuesdays
and Fridays, and possesses and exercises authority to
excuse an employee's absence if he determines the reason
offered is justifiable.
It is evident from the above that Orozco is fully vested
with most, if not all, the stautory indicia of supervisory
authority. America Model & Pattern, 269 NLRB 309
(1984). In addition, it is readily apparent Orozco does
not exercise this authority in a ministerial or routine fash-
ion but, rather, uses his own independent judgment in
the interest of Respondent's business operations. Spring
Valley Farms, 272 NLRB 1323 (1984). Accordingly, I
find that the record fully established Orozco to be a su-
pervisor within the meaning of Section 2(11) of the Act.
C. The Employee-Initiated Organizing Effort
Maria Romos, a production employee, testified that
she was concerned about what she felt were poor work-
ing conditions , low salaries , and the use of favoritism at
Respondent's facility. Ramos stated that on 15 January,
she began discussing with several coworkers the possibil-
ity of getting a union to represent them . One such em-
ployees was Ramona Mejia. Mejia testified that on this
date Ramos asked if she would support an effort to get
union representation at the plant and she agreed.
On 18 January, Ramos began soliciting signatures on a
petition from fellow employees at the plant requesting
representation by a union. Ramos testified she kept the
petition hidden in her sock while working in order to
hide it from management. On 19 January, Ramos con-
tacted Silva by telephone and relayed the employee in-
terest in unionization to him . Silva explained that a peti-
tion was not sufficient and the employees needed to ex-
press their interest by signing authorization cards. He ar-
ranged to attend a meeting with the interested employees
at Ramos' home the next day.
When Ramos reported to work on the day shift that
afternoon, she gave her address and phone number to
employees who manifested an interest in being represent-
ed by a union and advised them of the meeting schedule
at her home the next morning with Silva. According to
Ramos, she spoke to approximately 25 employees during
her shift.
That same evening, Respondent's officials called a
meeting of the day-shift employees at approximately 6:30
p.m. in the employee lunchroom. According to the testi-
mony of the employee witnesses, D. Robles, Sandoval,
and Martinez were the management officials at the meet-
8 Fernand Villanueva is foreman of the night shift
ing. Sandoval spoke first and explained the current bene-
fits the employees were receiving. Sandoval stated he
was aware a group of employees was trying to organize
a union and , while he had nothing against a union, one
was not needed at Respondent's plant. He told the em-
ployees Respondent was growing and expanding and
would provide more work for them. Socorro Chairez
questioned why the amount of her paycheck remained
the same if the Company was growing . Martinez re-
sponded to Chairez ' question by stating that her pay-
check had not increased because either she was a poor
worker or she had not "won favor" with her foreman.9
Respondent's officials admitted holding a meeting of
the day-shift employees in the lunchroom on 19 January.
According to D. Robles, Martinez, and Orozco, it was
customary for management officials to hold meetings pe-
riodically with employees during working hours to dis-
cuss matters of employee benefits, safety, and production
problems. Sandoval was not called as a witness but D
Robles and Martinez recalled that Sandval spoke about
insurance benefits and production problems. Martinez ad-
mitted responding to the question posed by Chairez con-
cerning her wages. According to Martinez, he told the
employee the way to get a wage increase was to look to
her foreman and earn a raise by good work and attend-
ance.
Although none of Respondent's witnesses stated San-
doval mentioned he was aware of the union activities of
the employees, several of them admitted that "all the
world" knew about the organizing activity taking place
in the plant. R. Robles testified he became aware that
union activity was occurring among the employees as
early as the first week in January. He stated it was no
secret and he learned of it from an employee; he could
not recall, however, which employee relayed this infor-
mation to him. Martinez also testified that "all the
world" Knew of the union activity occurring in the
plant in January and February. He denied, however, that
he was informed of these activities by any of the em-
ployees. D. Robles testified Martinez informed him of
the employee union activity.
Ramos testified that after the meeting with manage-
ment in the lunchroom, a number of employees came up
and asked her for information regarding the union meet-
ing to be held at her home. At the end of the work shift,
Sanchez, who rode to and from work with Ramos, asked
Ramos for information on the Union. Ramos testified she
was surprised that Sanchez would support unionization
of the employees because Sanchez' sister (Maria Marti-
nez) was "close" to one of the Robles. Ramos told San-
chez of the meeting scheduled to be held the next morn-
ing at her home.
Approximately 18 employees met with Silva the fol-
lowing morning at the home of Ramos. Silva gave the
employees information about the Union and explained
The above is a synthesis of the testimony of Socorro Chairez, Beatnz
Sanchez , Ramona Mepa , and Maria Ramos Sanchez also testified on
cross-examination that Sandoval stated the emloyees might lose all of
their current benefits if the Union got in It is noted , however, that in the
affidavit given the Board agent investigating the charges in these cases,
Sanchez did not mention this statement she now attributes to Sandoval
LA REINA, INC 795
how it would benefit them. All the employees attending
the meeting signed authorization cards for the Union.
The employees selected an in-plant organizing committee
consisting of Ramos, Sanchez, Edel Cruz, and Jaun
Garcia. Additional authorization cards were taken by
Ramos, Schanez, and Garcia to solicit signatures from
other employees at the plant. When Ramos and Sanchez
went to work that day, they began soliciting signatures
from other employees of Respondent in the parking lot
and in the plant itself. Sanchez testified she gave a card
to Ruben Orozco, son of Foreman Orozco, which he
signed and returned to her. Other employees signed
cards for Sanchez and she in turn gave them to Ramos.
Sanchez further testified that she discussed the Union
with other employees while working during her shift.
Silva held subsequent meetings with employees of Re-
spondent in January and February. Three of these meet-
ings were at the home of Sanchez and took place on 25
and 29 January and 9 February. A fourth meeting was
held on 17 February at La Soledad Church 10 On the
basis of a representation petition filed by the Union, a
Board-conducted election was held on 24 February. San-
chez was one of two union observers at this election.
D. The Events After the Union Meeting
1. The alleged statements by Orozco and A. Robles
Employee Marta Ramos" testified that after the meet-
ing with management in the lunchroom on 19 January,
Orozco questioned her regarding the Union. Ramos was
unable to recall the date of this conversation but stated it
occurred in January. Her affidavit, however, indicates
that the conversation took place approximately I week
after the lunchroom meeting.
According to Ramos, Orozco came over to her work
station and asked if she had signed a card for the Union.
When Ramos replied she had, Orozco told her he
thought Respondent's officials were going to fire the em-
ployees they thought were for the Union. Ramos also
stated that when she returned to her machine, she repeat-
ed Orozco's comments to employee Edel Cruz.' 2
Sanchez testified that she had a conversation with A
Robles on 22 January According to Sanchez, Robles
came over to the area where she was working and called
her aside. He asked why she attended the union meeting
at the home of Maria Romos. He told Sanchez that he
had two people at the meeting who informed him of
what was going on. Sanchez further testified that Robles
told her he had checked with Orozco and confirmed the
fact that Sanchez was a good worker. She stated he also
told her that he knew Maria Ramos had started the
union organizing campaign among the emplyees and that
Ramos could be fired by Respondent without any bene-
fits. Sanchez stated Robles wanted to know why she was
dissatisfied with her employment. Sanchez told him that
she was unhappy with some of the working conditions
10 At the reqest of the employees , Silva sent a telegram to D Robles
inviting him to attend this meeting , but Robled did not accept
11 Ramos is currently an employee of Respondent She was subpoe-
naed as a witness by the General Counsel
12 Orozco , on the other hand , denied that he told Marta Ramos Re-
spondent would fire the supporters of the Union
including the workbreaks and wages. She testified that
Robles responded it was her way of looking at it. San-
chez then told Robles that other employees were also
dissatisfied but were afraid to speak out.
Marcela Enriquez i 3 testified she attended the union
meetings at the home of Sanchez and at La Soledad
Churh. She stated that sometime after the meeting at the
church, A. Robles came over to her while she was in the
plant and began discussing the Union. According to En-
riquez, Robles said the Union would only get 1 or 2
cents more an hour for the employees. She further testi-
fied that Robles stated the employees already had bene-
fits and asked what more did they want.
Contrary to the testimony of Sanchez and Enriquez,
Robles denied discussing the Union with these employ-
ees. He denied telling Sanchez he knew Maria Ramos
was responsible for the union organizing effort. He fur-
ther denied telling Sanchez he was aware of the union
meeting and had two employees there informing him of
what took place. Robles also denied telling Eniquez that
if the Union got in, the employees would only receive I
or 2 cents more an hour Robles admitted, however, that
he was aware of the employees' union activities after 20
January. He stated that subsequent to that date the entire
plant and all management knew about the union cam-
paign Robles testified he learned about the union activi-
ty from some of the female employees. He stated that 20
or 30 employees told him about the activities. Robles fur-
ther testified he was aware the employees were attending
union meetings but asserted he did not know where the
meetings were taking places. He said he received this in-
formation through gossip in the plant. He observed em-
ployees in groups discussing the union and passing out
union cards during breaks and between the day and night
shifts. Robles stated Marta Ramos was one of the em-
ployees he observed distributing union cards during the
change in shifts. He testified he reported these activities
to Orozco and Villanueva, telling them, " We're going to
have to do something about this" The two foremen them
ordered the employees to go to work or to go home.
Robles also reported the organizing activity to his broth-
ers, D. and R. Robles. He stated he described the situa-
tion as a "Disgrace" and in a derogatory manner which
indicated that the activity among the employees was
"motherless." He informed D. Robles of the names of
the employees he observed passing our cards and stated
they were going around with their "stones." According
to A. Robles, his brother responded by saying, "If they
want a union, let them make their decision."
2 The layoffs on 24 January
Maria Ramos testified that when she reported to work
on Sunday, 22 January, she saw her name listed as one of
the employees designated for a 1-day layoff on the fol-
lowing Monday. The next day, she was contacted by
Sanchez and notified that she, Sanchez, Mejia, and three
other employees were listed to report to the office of
Martines at 9:30 a.m. on Tuesday. When the employees
as Ennquez began working for Respondent in 1981 and quit her job in
May 1984
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reported as instructed, Martinez informed them that they
were being laid off by Respondent. According to the un-
controverted testimony, Martinez stated that he did not
know how long the layoff would be and that it could
last from 2 weeks to 3 months. He told the employees
that if they found other jobs in the interim , they should
keep them. The employees protested that newer employ-
ees were being retained while they were being laid off.
Martinez replied that the laid-off employees were select-
ed at random and that he was carrying out orders from
above. Sanchez testified she accused Martinez of firing
the employees and he laughed. Martinez had the pay-
checks already prepared for the laid-off employees. San-
chez complained that she had not received a day's pay in
her last paycheck because she had failed to punch out on
one occasion. Martinez then had an additional check pre-
pared for Sanchez for this amount.
On 11 February, Mejia and Romos were notified by
telegram to return to work. Sanchez, however, was not
and has not been recalled, although new employees have
been hired since the time of her layoff.
Respondent's officials testified the layoffs were necessi-
tated by a drop in sales during January and February.
According to the testimony of Respondent's officials,
sales dropped off during the same period the preceeding
year and resulted in a layoff. Francisco Morales, director
of marketing for Respondent, testified that business was
slowing down in December of 1983. He stated Respond-
ent normally experienced a drop in sales from January to
April of each year. He further testified that in 1984 the
quality of Respondent's product was poor and one of its
major customers (Bay Mexican Foods) 14 threatened to
drop its account with Respondent. Morales stated Re-
spondent subsequently lost this customer in February of
1984.
R. Robles testified that business was slack and projec-
tions for future sales were down. He stated he decided a
number of employees would have to be laid off, based on
sales projections furnished by Morales. R. Robles in-
formed D. Robles of the drop in business and advised
him that Respondent would have to lay off some produc-
tion employees. According to R. Robles, the number of
employees and who they were was solely within the dis-
cretion of D. Robles.
Respondent introduced into evidence a summary of
the volume of its sales for January through May for the
past 3 years.' 5 This document reveals the following:
1982 1983 1984
January $753,254 $708,788 $763,244
February 721,112 692,079 750,681
March 811,929 915,559 775,673
April 846,000 813,450 823,353
May 810,058 802,122 861,365
14 Bay Mexican Foods is a Taco Bell franchise located in northern and
central Florida its account with Respondent amounted to approximately
$500,000 annually
1s See R. Exh. I
The summary also indicated that sales in December 1981
amounted to $798,330, in 1982 they amounted to
$718,659, and in 1983 sales amounted to $755,238. Elinda
Cuevas, Respondent's accounting clerk, testified that the
trend in Respondent 's out-of-state sales was going down
in January and this followed a pattern experienced by
Respondent during the previous year.
Martinez, in turn, testified he selected the employees
for layoff based on a set criteria he always used for such
a purpose. He stated he considered the following in
making the selections: (1) poor quality of work; (2) lack
of discipline in punching one's timecard; and (3) poor use
of equipment to endanger oneself or one's coworkers.
According to Martinez, he did not consider seniority a
factor in selecting employees for layoff. He admitted on
cross-examination, however, that when Respondent expe-
rienced a similar layoff which involved 10 employees in
December 1982 and January 1983, the employees he se-
lected for layoff were those who worked 4 months or
less with Respondent.
Martinez stated he selected Ramos for layoff because
she talked too much with other employes while working.
He stated he happened to observe her talking while on
the job shortly before the time of the layoff. He admitted
he did not speak to or reprimand Ramos about talking on
the job. He further acknowledged that Ramos was a
long-term, experienced employee but stated seniority was
not a factor in his selection.' 6
According to Martinez, he selected Mejia because this
employee also distracted coworkers by talking while on
the job. He stated this endangered the safety of the other
employees; particularly when Mejia was working in the
area of the hot sealing machines. In his affidavit, howev-
er, Martinez stated he spoke to Mejia about her talking
on the job in November 1983 and after that time, he
never observed her talking to or distracting any of her
coworkers while on the production line. He also ac-
knowledged in his affidavit that he had never received
any complaints from Orozco about Mejia talking on the
job. Martinez also stated in his affidavit that he consid-
ered Mejia's record of layoffs (days off dunng work-
week) as a factor in making his decision. According to
Martinez, Mejia was on layoff 50 to 52 days a year.17 He
further noted that on one occasion in November 1983,
Mejia failed to produce a medical certificate to justify an
absence from work. Under insistent questioning by coun-
sel for the General Counsel, Martinez acknowledged that
he did not look at his personnel records to compare
Mejia's work record with that of other employees; nor
did he make any such comparisons for any of the em-
ployees he selected for layoff. He stated he merely exam-
ined the files of the employees he had already selected
because, as he put it, "I had to start somewhere."
16 Ramos first began working for Respondent in 1976 and remained as
an employee until 1978 She returned to work for Respondent on 4 July
1981 and continued to work until September 1983, when she left to have
a baby Ramos returned to work for Respondent on 25 December 1983
Ramos' testimony is unrefuted that she had never experienced an ex-
tended layoff during her entire tenure of employment with Respondent
11 Mepa started work for Respondent in 1976 and worked for 3 years
until she was suspended She was reemployed in 1981 and worked con-
tinuously thereafter for Respondent
LA REINA , INC. 797
Martinez offered numerous reasons why he selected
Sanchez as one of the employees to be laid off 24 Janu-
ary. He stated a few days prior to the layoff he observed
Sanchez operating an electronic pallet jack. Because she
was not one of the employees assigned to operate this
type of equipment, he told her not to do so. He stated
Sanchez replied she knew how to do everything, but left
the jack and returned to her assigned job. According to
Martinez, this was the only occasion he observed San-
chez operating the pallet jack.18 Martinez further stated
he selected Sanchez for layoff because she had no "disci-
pline" in punching her timecard and frequently missed
work without an excuse. He particularly noted that San-
chez failed to punch out on 17 January and that she was
not paid for the Thanksgiving holiday in November 1983
because she was absent on 24 and 25 November of that
week. Martinez testified he ascertained this information
when he reviewed Sanchez' personnel file after deciding
she would be one of the employees laid off.
In the affidavit given the Board agent investigating the
charges underlying these cases, Martinez stated Sanchez
failed to provide Respondent with a medical certificate
to cover her absences during the Thanksgiving week in
November. He stated he was not aware that Sanchez or
her sister, Maria Martinez,19 were absent from work for
that period because they had to go to Mexico to attend
the funeral of their grandmother. Martinez further stated
that Sanchez frequently quit her employment with Re-
spondent, but admitted that she was rehired each time
she came back. He also acknowledged that he had never
spoken to Sanchez in the past about missing work or fail-
ing to punch out on her timecard.
Sanchez testified she first began working for Respond-
ent in 1973. She worked periodically thereafter, quitting
her job from time to time. Each time she returned, she
was rehired without question by Respondent. Her last
period of employment with Respondent began in August
1983 and continued until the date of her layoff.
Sanchez admitted she failed to punch out on her time-
card the week preceeding the layoff but testified this was
a common occurrence among Respondent's employees.
When this happened, according to Sanchez, the remiss
employee would not receive pay for that day in the next
paycheck. However, once it was called to the attention
of management and it was confirmed that the employee
did work that day, the day's wages would appear in the
following paycheck.20
Sanchez further testified that she and her sister left the
job on 22 November after receiving a phone call that
their grandmother in Mexico was gravely ill They noti-
fied Orozco and immediately left for Mexico. Their
grandmother died and they remained in Mexico until 27
November. Sanchez stated, while in Mexico, she called a
coworker and had her notify Orozco that she and her
sister would be delayed in returning because of the
death. According to Sanchez, when she returned to
work on 27 November she was never reprimanded or
questioned about her absence.
Finally, Sanchez admitted that she frequently operated
an electric pallet jack in order to move pallets from her
work area. She stated she was taught to operate the
pallet jack by employees Cruz and Garcia but acknowl-
edged that none of Respondent's officials authorized her
use of this equipment. According to Sanchez, she fre-
quently worked alone and it became necessary for her to
move full pallets in order to complete her job. She testi-
fied that both Orozco and D. Robles had seen her on
several occasions operating the pallet jack but never
commened to her about it. Sanchez further testified that
on one occasion she was standing on a forklift truck in
the packing area and was attempting to see if she could
also operate it. 21 Sanchez stated that Orozco observed
her doing this and laughed when her efforts proved un-
successful.22 She testified she then left the forklift and
never attempted to operate it again.
3. The termination of Media
Following her recall on 12 February, Mejia worked
her scheduled shift until 26 February. She testified she
reported to work on 26 February (Sunday) but felt ill
and sick to her stomach.23 She did not punch in nor did
she inform any of Respondent's supervisors of her illness;
she merely returned home. She stated that once home,
however, she tried to call the plant but no one answered
the telephone.
The next day, Media went to Respondent's parking lot
at the time the day shift was scheduled to report and
spoke with Orozco. She told Orozco she was ill the pre-
vious day but was now ready to return to work. She also
asked the foreman not to give her too many days off
(during the week). Melia testified Orozco said it was all
right. She further testified that Orozco did not tell her it
was necessary for her to get a medical excuse for her ab-
sence. According to Mejia, it is customary for an em-
ployee, when absent, to explain the circumstances to the
foreman and, if he wanted the employee to work, he
would instruct the employee to punch in. It he did not
instruct the employee to go to work at that time, the em-
ployee was required to contact the plant the next day "to
see if the foreman would permit the employee to work."
Mejia testified that she called the Respondent's facility
and was told she was on layoff. She repeated this proce-
dure on Wednesday and Thursday and was given the
same response . On Friday, Mejia went to the plant and
spoke with D. Robles. Mejia testified she asked Robles if
she was on layoff and he said employees are permanently
'B D Robles testified he saw Sanchez operating the pallet jack in a
"zig-zag fashion " in the shipping area in December 1983 He ordered the
employee not to operate the equipment again There is no indication in
the record that D Robles passed this information on to Martinez
'a As noted, Sanchez' sister Maria Martinez , apparently had a personal
relationship with one of the Robles brothers
80 Orozco also testified that employees frequently failed to punch out
on their timecards According to Orozco, " it happens to almost all of
them," and he stated five or six employees a week usually failed to punch
out.
Si In contrast to a pallet jack, which is operated by means of a handle,
a forklift is operated by standing on the equipment and manipulating the
controls
22 Orozco testified that when he observed Sanchez standing on the
forklift, he told the employee she was to get off the machine and not to
attempt to operate it
23 Mepa testified she was also receiving treatment at this time from a
chiropractor for problems with her back She stated the back problems
were unrelated to the illness she experienced on 26 February
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off if they fail to report in after 72 hours. Mejia
complained that she had spoken with Orozco on Monday
and Robles told the employee that Orozco had not men-
tioned the matter to him. Mejia protested that it was
"unjust" and that she had been with Respondent for 3
years with a good record. Robles responded by saying
that the employee's seniority did not matter but what did
matter was her prior bad record with Respondent.24
Mejia continued to protest the unfairness of the situation,
and Robles told her to bring in a medical excuse and she
could return to work. Mejia told Robles that she did not
go to a doctor for her stomach ailment and she did not
have a medical certificate for that day's absence. Robles
told Mejia to go home and he would contact her within
a couple of hours. When Mejia returned home, she re-
ceived a telephone call from Robles. He told the employ-
ee she could return to work when she presented an
excuse from the doctor covering her absence on 26 Feb-
ruary. He stated that was all she needed The employee
repeated she did not have such an excuse and Robles
continued to insist that she could only return to work
once she had fulfilled this condition.
Orozco confirmed that Mejia met with him in the
parking lot on 27 February and explained that she had
not worked the previous day because she was suffering
from a stomach ailment . He stated he told the employee
"to try to get well and then return." According to
Orozco, when employees are absent due to illness, they
are required to present a medical excuse or, if they do
not require the services of a doctor, then offer a reasona-
ble explanation to him or Martinez to justify the absence.
Orzoco further testified that Respondent's receptionist
did not work on Sundays and he did not know whether
anyone was available on that day to answer the office
telephones.25
Although she steadfastly maintained that her absence
on 26 February had nothing to do with the back condi-
tion for which she was receiving treatment from a chiro-
practor, Mejia presented a statement from a chiropractor
to A. Robles, who had now become personnel manager,
sometime in March (the record is unclear about the pre-
cise date). The statement presented by Mejia indicated
she had been under the care of the chiropractor since 29
February and was now able to return to work as of 20
March. (See R. Exh 3.) Robles testified he had been in-
formed by Orozco that Mejia had come to the plant on
26 February but did not work and said nothing to him
until the following day; claiming she was suffering form
a stomach ailment . Robles testified he had Sandoval con-
tact the chiropractor to determine the validity of Mafia's
medical excuse . According to Robles, Sandoval reported
the chiropractor claimed he had no record of Mejia's
visits. On 20 March, Robles sent a letter to Mejia stating
it was Respondent's understanding Mejia was absent
from work because the employee was "sick of [sic] your
stomach." The letter further stated Respondent had no
24 As perviously noted, Mejia had been suspended by the Respondent
in 1979 or 1980 and rehired in 1981 Mejia also testified that she had
failed to produce a medical excuse covering an absence in 1983 and had
been suspended for 2 days
25 Both Sanchez and Melia testified the office telephone were an-
swered until 6 p in each day but were never answered on Sundays
openings for Mejia at the present time but would call her
as soon as one was available . (See R . Exh. 4.) A. Robles
admitted, however, that he has since hired new employ-
ees but has not recalled Mejia back to work.
4. The enforcement of the white clothing rule
Among its work rules, Respondent has a requirement
concerning the color of the clothing employees are to
wear while working. The specific rule reads as follows:
DO DRESS COMPLETELY IN WHITE
CLOTHES (PRODUCTION EMPLOYEES ARE
NOT REQUIRED TO WEAR UNIFORMS).
The unrefuted testimony discloses that the production
employees are required to purchase and wear white
street clothing while working . In addition , Respondent
furnishes the female employees with white aprons and
caps and the male employees with white smocks.
Orozco testified that the clothing work rule had
always been in effect but that he liked to be "flexible" in
enforcing it. According to Orozco , employees would
sometimes appear with other than white clothing and he
would allow them to work with the understanding that
they would wear white clothing the following day He
stated he permitted this because employees frequently
did not have an opportunity to wash or clean their white
clothing before coming to work . He also acknowledged
that on a number of occasions , he has permitted female
employees to work while wearing colored blouses.26
Marcela Enriquez testified that when she reported to
work on Sunday , 26 February (the first workday after
the Board-conducted election), A. Robles handed out
copies of Respondent 's work rules to each employee. En-
riquez threw her copy in the trash because she had seen
them posted in the plant over the past years. The follow-
ing day Enriquez reported to work in predominantly
white clothing According to Enriquez, she had on a
white blouse which had red stripes along both shoulders.
She stated she had worn this blouse to work many times
since she was first hired in 1981 and none of Respond-
ent's supervisors ever complained or reprimanded her re-
garding her attire. Enriquez further stated that many of
the employees frequently wore clothing which, while
predominantly white , had streaks of color in them and
were never reprimanded by Respondent 's supervisors.
At approximately mid-shift , Enriquez was called into
the office of A. Robles, along with five other employees.
D. Robles was present and he reminded the employees
that they had been given copies of Respondent's work
rules the previous day. A. Robles told the assembled em-
ployees they were going to receive a written warning for
failure to wear the required white clothing while work-
ing. Enriquez protested that her blouse was virtually all
white and that she had worn it to work on numerous oc-
casions before and had never been reprimanded . She fur-
ther protested that the caps and aprons Respondent pro-
26 Two employees, Socorro Torres and Maria Rodriguez, testifying as
witness for Respondent , stated the clothing rule had been strictly en-
forced since September 1983 However, each admitted that some employ-
ees did not adhere to the rule and wore colored clothing while working
LA REINA, INC. 799
vided the female employees had streaks of color in them
although they were predominantly white. Robles, ne-
verhteless, issued a written warning to Enriquez which
she signed under protest . She was also suspended a day
without pay for the clothing infraction. (See G.C. Exh.
16.)
A. Robles testified that when he was chief of quality
control, he observed some of Respondent's employees
wearing colored clothing while working. He admitted he
never spoke to any of the offending employees during
this time He stated that when he previously worked for
Respondent, the white clothing rule had been enforced
on a strict basis. According to A. Robles, after the elec-
tion (24 February), he noticed more employees wearing
colored clothing in the plant. He stated he asked Marti-
nez why the employees were permitted to wear colored
clothing and decided that since he was taking charge of
personnel, he would make certain that the clothing rule
was enforced. Robles further testified that after he
handed out copies of the Company's rules, he observed a
group of employees wearing colored clothing the next
day. He acknowledged that he called the offending em-
ployees into his office and reminded them of the rule he
had just given out. He issued written warnings and sus-
pended them for a day without pay to enable them to ac-
quire completely white clothing to wear to work.
5. The transfer of Chairez and Ramos to the night
shift
On 29 February, Socorro Chairez and Maria Ramos
were called into the office of A. Robles. The employee
witnesses testified that D. Robles was in and out of the
office during their discussion with A. Robles.
Chaurez stated that A. Robles told her and Ramos
they were being transferred to the night shift (11 p.m. to
8 a.m.) effective 2 March. Both employees protested and
stated they had far more seniority than many other em-
ployees on the day shift. They questioned why they
were selected to be transferred to the night shift. Chairez
testified she asked if it was because of the union matter.
She stated A. Robles replied he had orders from above
and the decision had been made.
Ramos testified A. Robles stated there were problems
with all Respondent's personnel and that he needed them
(Chairez and Ramos) on the night shift. According to
Ramos, Robles also told the employees there were prob-
lems with the Union and there would be a lot of changes
taking place. She further testified Robles said that it was
fortunate the Union lost the election because the Union
"wasn't good for anything." He told the employees, ac-
cording to Ramos, that if the Union had won the elec-
tion , Respondent would have had to pay $3000 a day
and that would bring Respondent down . Ramos argued
that a union was necessary to prevent what was happen-
ing to her and Chairez from occurring; i.e., transferring
employees to the night shift and showing favortism.
Ramos stated Robles also mentioned there were employ-
ees working 25 to 30 years for Respondent who had
never given Respondent any problems. When Chairez
and Ramos asked if they were giving Respondent prob-
lems, Robles indicated they were not.
Ramos continued to protest her transfer to the night
shift , stating her daughter was still very young and she
did not wish to work the late hours . Robles replied man-
agement had made a determination and that was the way
it would be. Ramos accepted the transfer to the night
shift but Chairez quit her job with Respondent because
of the transfer.
On 28 April, A. Robles notified Ramos he was trans-
ferring her back to the day shift . She testified Robles
asked , "If he changed her back to day's would she
remove the charges against him."27 According to
Ramos , she told Robles to either transfer her or pay her
the same wages the other employees on the night shift
were receiving . 28 She stated Robles then replied that he
could not give her an increase and he was going to
change her to the afternoon (day) shift
A. Robles testified that he made the decision to trans-
fer Chairez and Ramos to the night shift because there
was high absenteeism and employee turnover on that
shift . He stated he wanted reliable employees who turned
out good work to be assigned to the night shift and he
selected Chairez and Ramos for this purpose . He further
stated that he had a person on the night shift who was a
single parent and had problems working nights . He trans-
ferred this person to the day shift at the time that Ramos
was transferred to the night shift. After persistent ques-
tioning by counsel for the General Counsel , Robles ac-
knowledged he occasionally took an employee 's prefer-
ence into consideration when making a decision whether
to assign the employee to work on the night shift. He
also acknowledged that he did not ask any day shift em-
ployees other than Chairez and Ramos to make the
transfer to the night shift. Robles denied telling Chairez
and Ramos , during the transfer discussion, that he was
glad the Union lost the election because it would have
cost Respondent $3000 a day . He admitted , however,
that he said he was going to make changes at the plant
but stated that the changes were to be made in order to
produce a better quality product. Regarding the subse-
quent return to the day shift in April , Robles admitted he
asked Ramos if she were going to "remove " the charges
against him when he notified the employee of the deci-
sion . According to Robles , Ramos responded by asking
him to pay her for the time she lost when she was on
layoff and he stated he did not have authority to do so.
Concluding Findings
A. The Independent Violations of Section 8(a)(1)
1. Antonio Sandoval
The amended complaint alleges Sandoval created an
impression Respondent was engaging in surveillance of
employees' union activities when he spoke to the assem-
bled employees in the lunchroom on 19 January. All the
employee witnesses testified Sandoval stated Respondent
27 Ramos understood Robles was referring to the unfair labor practice
charges filed against Respondent
28 The testimony reveals that Respondent paid a wage differential to
employees working on the night shift Ramo's testimony is unrefuted that
her wages remained the same after she was transferred to the night shift
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was aware the employees were trying to organize a
union and , although he had nothing against a union, one
was not needed at Respondent's plant. As noted, Sando-
val did not testify in this proceeding and Respondent's
witnesses (D. Robles and Martinez) who did testify re-
garding this meeting did not specifically deny the state-
ment was made. Rather, they stated Sandoval discussed
employee benefits and production problems. However,
D. Robles and Martinez, and indeed all Respondent's su-
pervisors, testified that "all the world" knew the union
activity was taking place among the employees. R.
Robles stated he knew of the union activity as early as
the first week in January although the testimony indi-
cates Ramos did not begin her efforts to get employee
support for a union until 15 January. I find, therefore,
that the testimony of the employee witnesses in this
regard stands unrefuted. In addition, I find their testimo-
ny regarding this meeting was candid and forthright and
worthy of belief.29 Accordingly, I find Sandoval did tell
the employees at this meeting that Respondent was
aware of the union activity taking place in the plant.
The question then becomes whether Sandoval's state-
ment created the impression Respondent was engaging in
surveillance of the employees' activities. I find that it did
not. As the Respondent's witnesses testified, the union
activity of the employees was common knowledge
throughout the plant. Sandoval's statement was based on
this commonly known fact and was a generalized com-
ment indicating management 's awareness of the union ac-
tivity. The Board has held that "such generalized state-
ments to employees, which are not directed at any par-
ticular employee's organizing activities, are insufficient to
create the impression of surveillance." Palby Lingerie, 252
NLRB 176 (1980). Cf. California Dental Care, 272 NLRB
1153 (1984). Accordingly, I find the record here does not
support the finding of a violation regarding Sandoval's
statement to the employees on 19 January and this alle-
gation of the complaint must be dismissed
2. Alfonso Robles
Sanchez testified that A. Robles came to her work sta-
tion on 22 January and called her aside. He asked the
employee why she attended the union meeting at the
home of Maria Ramos and told Sanchez he had two em-
ployees who attended the meeting and kept him in-
formed. He also told Sanchez that he knew Ramos start-
ed the union organizing effort and that she could be fired
without any benefits. Although Robles denied discussing
the union with Sanchez or making the statements she at-
tributed to him, I do not credit him in this regard. Ob-
serving both these witnesses while testifying, I find A.
Robles appeared to be evasive in many instances and in-
clined to give less than a truthful account of the events
29 In so doing , however, I do not credit that portion of the testimony
of Beatnz Sanchez that Sandoval stated the employees would lose their
existing benefits if a union represented them I do not, however, discredit
all Sanchez ' testimony regarding this or any of the other events to which
she testified Nonetheless, I note that none of the other employees, each
of whom gave a full account of their recollection of this meeting , testi-
fied that such a statement was made by Sandoval I further note that San-
chez made no mention of this statement in her affidavit given to the
Board agent at the time the charges were being investigated
about which he was testifying . Sanchez , on the other
hand, generally testified in a candid and forthright
manner ; although , as in the instance of her testimony re-
garding Sandoval , she was not beyond embellishing her
statements in order to support the charges against Re-
spondent . Nevertheless, on the basis of my observation
of the witnesses, I find that Robles did call Sanchez aside
on the evening in question and make the statements she
attributed to him.
It is evident that Robles ' comments to Sanchez, among
other things , created an impression of surveillance as
they were specifically directed to the union activities of
Sanchez as well as those of Ramos . Robles' statements to
the employee clearly had a reasonable tendency to inter-
fere with and restrain the employee from exercising her
statutory rights by creating the impression that he had
sources of information about the union activities of the
employees . California Dental Care, supra ; Hanlon &
Wilson Co., 267 NLRB 1264 ( 1983). In addition , by tell-
ing Sanchez that he knew Ramos started the union orga-
nizing activity and that she could be fired without bene-
fits, Robles was expressing the threat that Respondent
would retaliate against the employees involved in the
union activity by discharging them . I find , therefore, that
the statements made by A. Robles to Sanchez on 22 Jan-
uary constituted independent violations of Section 8(a)(1)
and (3 ) of the Act.
3. Juventino Orozco
The amended complaint alleges Orozco's conversation
with Marta Ramos, occurring approximately a week
after the meeting on 19 January, violated Section 8(a)(1)
of the Act. Marta Ramos testified Orozco came to her
work station and inquired if she had signed a union card.
When the employee replied in the affirmative, Orozco
told her he thought Respondent's officials were going to
fire the employees they thought were in favor of the
union. Although Orozco denied making these comments
to Marta Ramos, I credit her testimony. Ramos was cur-
rently an employee of Respondent and was subpoenaed
to testify. Although she appeared hesitant while testify-
ing, Ramos conveyed the impression that she was giving
a truthful account of the events as she knew them. In
contrast , Orozco was evasive on many occasions while
testifying and at times his testimony was inconsistent
even with that of other witnesses of the Respondent. For
example , Respondent 's witnesses stated that it was com-
monly known that the union activity was taking place
and A. Robles stated he complained to Orozco and Vil-
lanueva when the employees were passing out cards and
soliciting during the change between the day and night
shifts. Orozco, on the other hand, testified he had never
seen any employees passing out union authorization
cards in or out of the plant. I find this inherently improb-
able in view of all the testimony on the openness of or-
ganizing activity. Therefore, I find Marta Ramos' ac-
count of her conversation with Orozco to be the more
trustworthy.
There is no evidence in the record that Marta Ramos
was an open and active advocate of the Union even
though she signed an authorization card . Orozco's ques-
LA REINA, INC.
tion whether she signed a card for the Union served no
legitimate purpose and when considered in the context of
the statement that he thought Respondent was going to
retaliate against the employees who were thought to sup-
port the Union by discharging them , it is manifestly clear
that his interrogation of Marta Ramos was unlawful. J. &
G. Wall Baking Co., 272 NLRB 1009 (1984); Nissen
Foods (USA) Co., 272 NLRB 371 (1984)
B. The Selection of the Employees Laid Off On 24
January
I find the record supports the General Counsel's con-
tention that Romona Mejia , Maria Ramos , and Beatriz
Sanchez were selected to be included in the layoffs on 24
January for reasons which violated the Act. Ramos and
Sanchez were the leading activists seeking to get union
representation in the plant . It is evident from the cred-
ited testimony that Respondent 's officials and supervisors
were well aware of the union activities of the individual
employees and especially the leadership role Ramos and
Sanchez assumed in seeking to organize the employees.
As Respondent 's own officials testified, "all the world"
knew the union activity was taking place. Indeed, the
statements made by A Robles to Sanchez on 22 January
clearly established he knew the initial union meeting was
held at the home of Ramos and he knew who attended
and what transpired . By his own testimony , A. Robles
observed employees passing out cards and discussing the
Union in groups in the plant during breaks and at the
time of the change in shifts Further , he complained to
the shift foreman as well as to his brothers . I find it rea-
sonable to infer from his testimony that he also cited the
names of specific employees in his complaints about the
union activity.
Although Mejia 's involvement in the union activity at
the time of the layoff consisted of attending the initial
union meeting at Ramos' home and signing an authoriza-
tion card there, I find from the statements of A Robles
that Respondent was aware of her actions in support of
the Union In view of Respondent 's demonstrated animus
toward the Union , found chiefly in the conduct of A
Robles, and its apparent knowledge of the union activity
of these three employees , I find the General Counsel has
established a prima facie case that the three employees
were selected for layoff in retaliation for their suppoort
of the Union . 30 Webb Furniture Enterprises , 275 NLRB
1305 (1985).
Although Martinez cited three criteria which he ap-
plied in selecting the employees who would be laid off, I
find his explanations unconvincing . Martinez testified he
considered poor quality of work , failure to punch the
timecards , and the dangerous use of equipment as the
standards he applied in deciding which employees would
be laid off He specifically stated that seniority or length
of employment was not a factor in making this determi-
nation . However , on cross-examination by the General
Counsel , he admitted that when Respondent had a simi-
30 The amended complaint does not allege nor do I find the layoff de-
cision itself was unlawful Rather , it is the selection of these particular
employees to be included among those laid off that is alleged to violate
the Act
801
lar layoff at approscimately the same time during the pre-
ceding year, he only selected those employees for layoff
who had worked for Respondent 4 months or less. This
admission belles his assertion that Respondent did not
take into account ]length of service or seniority when se-
lecting employees for extended layoffs. Moreover, I note
that Martinez offered no explanation why he departed
form this admitted past practice on 24 January.
Martinez offered several reasons to justify his selection
of each of the three alleged discriminatees, and I find his
explanations to be equally unpersuasive. Martinez stated
he selected Ramos because she talked too much to other
employees while working and that he observed her talk-
ing on one occasion shortly before the layoff. He admit-
ted he did not reprimand or caution Ramos about talking
on the job. Martinez further acknowledged that Ramos
was a long-term employee and an experienced worker.
Indeed, it was these very qualifications that A. Robles
cited in March (after Ramos had been recalled to work)
as the justification for transferring her to the night shift.
Other than the one occasion he asserts he saw Ramos
talking on the job which according to the testimony, was
a commonplace occurrence in the plant, Martinez did
not cite any other complaints registered against Ramos
by her shift foreman or other management officials for
talking on the job.
Thus, I find the explanation of Martinez to be com-
pletely unconvincing why he selected Ramos for layoff
on 24 January. She was, by Respondent's own account, a
reliable, experienced worker of relatively long tenure
who did not fit any of the criteria Martinez professed to
apply in making his selections for layoff. I find, there-
fore, that Respondent has not rebutted the prima facie
case established by the General Counsel with persuasive
evidence which demonstrates Ramos would have been
laid off in any event regardless of her union activity.
Webb Furniture Enterprises, supra; Wright Line, 251
NLRB 1083 (1981), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U S. 393 (1983).
Accordingly, I find Ramos' layoff on 24 June violated
Section 8(a)(3) and (1) of the Act.
The reasons offered by Martinez for selecting Mejia
for layoff are also unconvincing. Martinez asserted Mejia
distracted coworkers by talking on the job and this was
especially true in the area of the sealing machines, which
presented a danger to the employees because of the heat
used in the process. In his affidavit, however, Martinez
acknowledged that he spoke to Mejia in November 1983
about talking on the job and since that time he had never
observed her talking or distracting other employees
while working. Nor had he received any complaints
from her shift foreman about Mejia talking. Martinez
also cited Mejia's attendance record as a factor he con-
sidered in selecting her for layoff. He stated she was
absent from work 50 to 52 days a year since she had
been reemployed by Respondent in 1981 . Martinez ad-
mitted, however, that he did not compare Mejia's work
record or attendance with that of any other employee
before deciding to lay her off. He merely examined
Mejia 's file after he made the decision that she would be
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of the employees laid off and came up with the at-
tendance figures. Indeed, he followed this same proce-
dure with all the employees selected for layoff because
"[he] had to start somewhere." Not only is there a ques-
tion of whether Mejia's attendance record fitted within
the criteria Martinez professed he applied, but the ques-
tion also arises why Mejia's attendance record was a
factor this time when she was not laid off the preceding
year with an equally poor attendance record. In an at-
tempt to further justify his selection of Mejia, Martinez
also stated the employee failed to provide a medical cer-
tificate to excuse an absence form work in November
1983.
I find Martinez' explanation of the reasons for his se-
lection of Mejia fails to convincingly rebut the prima
facie case of discriminatory motivation established by the
General Counsel The reprimand given Mejia for talking
was several months prior to the decision to include her
in the layoffs, and Martinez acknowledges that the em-
ployee had not repeated this offense since the time of the
reprimand. Mejia's attendance record was not considered
a negative factor when Martinez selected employees for
a similar layoff the preceding year but was cited as a
factor by Martinez after it became known that Mejia was
involved in union activity at the time of the current
layoff.
None of the reasons given by Martinez for selecting
Mejia fit within the criteria he asserted governed his se-
lection with the exception of the talking incident in No-
vember 1983; and his own admission, the employee did
not engage in this conduct subsequently. By shifting to
the attendance record and the failure to present a medi-
cal excuse in November 1983, I find Martinez was
searching for reasons to justify his selection of Mejia
after he determined he would discharge the employee
because of her involvement in the union activities. I find
his explanations in this regard are competely unconvinc-
ing and are no more than a pretext to mask his unlawful
actions. Accordingly, I find Respondent has failed to
rebut the prima facie case established by the General
Counsel because it has not persuasively demonstrated
that Mejia would have been laid off notwithstanding her
involvement in the union activities taking place among
Respondent's employees. It follows, therefore, that Re-
spondent violated Section 8(a)(3) and (1) of the Act in
discriminatorily selecting Mejia for layoff on 24 January.
Webb Furniture Enterprises, supra. See also David's, 271
NLRB 536 (1984).
Martinez offered several reasons for selecting Sanchez
as one of the employees to be laid off. As with his expla-
nations for selecting Ramos and Mejia to be included in
the layoff, I find his justification for selecting Sanchez is
unconvincing.
It is evident Martinez was seeking to fit Sanchez
within one of his selection criteria when he stated he ob-
served the employee operating the pallet jack a few days
before the layoff and ordered her not to use the equip-
ment. He acknowledged Sanchez complied with his re-
quest and he never observed the employee using the
equipment again . There is no indication from Martinez'
testimony that any of Respondent's supervisors or man-
agement officials complained to him, prior to his decision
to select Sanchez for layoff, about Sanchez operating the
pallet jack; even though D. Robles stated he saw the em-
ployee operating the jack in a zigzag fashion on one oc-
casion in December 1983 and instructed her not to use
the equipment.
Sanchez, on the other hand, credibly testified she
worked in the packing area and was taught to handle the
pallet jack by her male coworkers so she could move a
pallet once it was loaded in order to start loading a new
one. I also credit her testimony that she had been doing
so for several months and was frequently observed by
Orozco when operating the pallet jack. Further, that
Orozco never complained about her operating the equip-
ment nor did he ever instruct her not to do S0.31 Al-
though it is clear that Sanchez was not assigned to oper-
ate the pallet jack in the course of her packing duties, it
is equally evident that Respondent's officials condoned
her use of this equipment until it became known that
Sanchez was one of the leading union activists in the
plant.
Martinez also cited Sanchez' failure to present a medi-
cal certificate covering her absence in November 1983,
during the week of Thanksgiving, when she and her
sister (Maria Martinez) had to leave work suddenly to go
to Mexico due to the illness and subsequent death of
their grandmother. Sanchez' testimony stands unrefuted
that Orozco was informed of and approved their leaving
work for this purpose and was subsequently informed of
the reasons for their delay in returning. Her testimony
also stands unrefuted that on her return, she was never
asked to provide an excuse for her absence. It is evident,
therefore, that Respondent's officials were aware of the
underlying circumstances causing her absence and con-
sidered them justifiable. This is especially true when con-
sideration is given to the apparent personal relationship
existing between Sanchez' sister and one of the Robles
brothers. Thus, the record belies Martinez' claim that
Sanchez violated Respondent's rules by failing to pro-
vide a medical excuse to justify her absence on this occa-
sion.
Similarly, Martinez' complaint that Sanchez periodical-
ly quit her job with Respondent is equally unpersuasive.
Indeed, Martinez acknowledged that on each occasion
when Sanchez returned and applied for reemployment,
he rehired her without question. Moreover, as the state-
ments of A. Robles reveal (made during his unlawful in-
terrogation of Sanchez), Sanchez was considered by her
foreman to be a good worker.
Finally, Sanchez' purported "lack of dicipline" in
punching her timecard rings hollow when consideration
is given to the unrefuted testimony that "such lack of
discipline" was widespread among Respondent's employ-
ees. Although Martinez could only cite one occasion (17
January) that Sanchez was an offender, Orozco testified
"it happened to almost all of them [the employees]" and
31 I also credit Sanchez' testimony that Orozco found her unsuccessful
attempt to operate the forklift truck on one occasion to be humorous
More important, there is no indication from the testimony of Orozco that
he informed Martinez of this incident prior to the decision to lay Sanchez
off
LA REINA, INC
at least five or six employees failed to punch their cards
each week.
In sum, I find that none of the reasons advanced by
Martinez for selecting Sanchez for layoff on 24 January
are convincing or persuasive. Rather, they merely serve
as a pretext to mask Respondent's unlawful motivation in
selecting Sanchez to be one of the employees laid off on
that date I find, therefore, that Respondent has not dem-
onstrated by convincing evidence that Sanchez would
have been laid off in any event without regard to her
union activity. By failing to rebut the prima facie case es-
tablished by the General Counsel that the selection of
Sanchez for layoff was in part motivated by unlawful
reasons, it follows that Respondent violated Section
8(a)(3) and (1) of the Act when it laid off Sanchez on 24
January. Webb Furniture Enterprises, supra. In addition,
by refusing to recall Sanchez even Respondent hired
new employees after her unlawful layoff, Respondent
continues to violate Section 8(a)(3) and (1) of the Act.
C. The Discharge of Romona Melia
The General Counsel contends Mejia was not permit-
ted to return to work after her absence on 26 February
and was subsequently terminated by Respondent because
of her activities on behalf of the Union Respondent
argues Mejia failed to produce a medical certificate cov-
ering this absence and when told she could work once
such an excuse was provided, submitted a statement from
a chiropractor which was fraudulent.
It is undisputed that Mejia failed to work and returned
home on 26 February without notifying her shift fore-
man that she felt ill. The record also establishes that
when she explained the reason for her absence to Orozco
the following day she was told to try to get well and
return . It is evident from the testimony of Mejia and
Orozco that when an employee is absent due to illness,
the employee is required to present a medical excuse
from a doctor or, if the services of a doctor were not re-
quired, to offer a reasonable explanation to the shift fore-
man or Martinez to justify the absence . In Mejia's case,
however, Respondent's officials adamantly refused to let
her return to work without producing a medical certifi-
cate from a doctor; although the employee explained to
both Orozco and D. Robles that she did not see a doctor
for the ailment she was experiencing on the evening in
question. At no time was Majia told by Respondent's of-
ficials that her story about her stomach ailment was un-
acceptable or unreasonable . Rather , Respondent imposed
a condition upon Mejia's returning to work which its of-
ficials well knew could not be met by the employee; i.e.,
produce a medical certificate covering her absence on 26
February It is evident Respondent was not requiring
Mejia to go to a doctor for a general health certification,
as argued by Respondent 's counsel . Rather , Respondent
was insisting that she provided a doctor 's certificate re-
garding the stomach problem which prevented her from
working on 26 February. Thus, when Mijia submitted
the statement from the chiropractor in March , it is ap-
parent that this certificate was not offered as an excuse
to justify her illness on 26 February and, indeed , the em-
ployee so testified.
803
In view of Respondent's unlawful selection of Mejia
for layoff on 24 January, I find that Respondent was
now using her absence on 26 February to impose an im-
possible condition on her return to work in order to re-
taliate against the employee because of her involvement
with the Union. By Respondent's own admission, new
employees have been hired since Mejia was not allowed
to return to work. In these circumstances, I find Re-
spondent has violated Section 8(a)(3) and (1) of the Act
by refusing to permit Media to return to work after her
absence on 26 February.
D. The Enforcement of the Clothing Rule
Although it is beyond dispute that Respondent had a
posted work rule requiring production employees to
wear white clothing when working, it is equally evident
from the testimony of all the witnesses that Respondent's
rule was not strictly enforced prior to the representation
election on 24 February. Orozco acknowledged he was
"flexible" in enforcing the white clothing rule and had
on several occasions permitted female employees to wear
colored blouses when working It was not until the first
working day after the representation election that Re-
spondent, primarily through A. Robles, sought to strictly
enforce this rule. A. Robles handed out copies of the
work rules to the employees as they reported to work
that day and, on the following day, issued a written rep-
rimand and a 1 -day suspension to Marcela Enriquez and
other employees because their clothing did not conform
with the rule.
The timing of the Respondent's strict enforcement of
the clothing rule, occurring 1 working day after the rep-
resentation election and following virtually on the heels
of the employees ' organizing activities , gives rise to the
strong inference that the change in the enforcement was
in retaliation against the employees for having engaged
in union and protected activities. This inference is further
strengthened when consideration is given to the unlawful
actions taken by Respondent against known supporters
of the Union and the unlawful threats expressed to em-
ployees by Respondent's supervisors, including A.
Robles . In these circumstances , I find Respondent's
sudden change from lenient to strict enforcement of the
clothing rule was retaliatory and violated Section 8(a)(3)
and (1) of the Act. Cf. United Hydraulic, 271 NLRB 107
(1984); Original Oyster House, 270 NLRB 87 (1984). See
also South Nassau Communities Hospital, 262 NLRB 1166
(1982).
E. Maria Ramos' Teansfer to the Night shift
The General Counsel contends Respondent transferred
Ramos to the night shift in retaliation for her activities
on behalf of the Union. I find the record fully supports
this contention.
I credit Remos ' testimony that when A. Robles an-
nounced Respondent 's decision to transfer her and
Chairez to the night shift, Robles stated Respondent had
problems because of the Union and other changes would
take place . I find Robles' explanation for selecting
Ramos to be transferred to the night shift to be uncon-
vincing . According to Robles , he selected her because
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was a reliable employee and an employee on the
night shift was having difficulty because she was a single
parent . Nonetheless , he remained adamant in his decision
even though Ramos explained to him that she had a
small child at home and would also experience difficulty
working the late hours. Thus, Robles was prepared to
ignore the hardship Ramos would experience working
the night shift although he ostensibly was transferring
another employee from the night to the day shift to re-
lieve her of the identical burden.
Considering that Ramos was known by Respondent's
officials to be the leading proponent of the union activi-
ty, that she was unlawfully selected for layoff by Re-
spondent in January of this protected activity, and that
the decision to transfer her to the graveyard shift was
made a week after the representation election. I find Re-
spondent transferred Ramos to the less desirable work
shift in order to further retaliate against her for initiating
the union activity in the plant. In these circumstances, I
find Respondent violated Section 8(a)(3) and (1) of the
Act by transferring Ramos to a less desirable shift.
The Objection to the Election
The Union's (Petitioner's) Objection 2 was consolidat-
ed for hearing with the unfair labor practice cases in this
proceeding. The record indicates the Union filed its rep-
resentation petition on 2 February and an election was
held on 24 February pursuant to a Stipulation for Certifi-
cation Upon Consent Election. There were 93 votes cast
for the Union, 97 against the Union, and 2 challenged
ballots.
The Union's Objection 2 alleges the Respondent (Em-
ployer) laid off and/or terminated employees because of
their support for the Union. The facts in the unfair labor
practice cases establish the Respondent unlawfully laid
off employees Mejia, Ramos, and Sanchez on 24 January
and subsequently recalled Mejia and Ramos on 12 Febru-
ary; but has not recalled Sanchez although new employ-
ees have since been hired.
The Union acknowledges this conduct occurred prior
to the filing of the petition in the representation case.
Thus, under the Ideal Electric rule,32 the unlawful con-
32 Ideal Electric Mfg Co, 134 NLRB 1275 (1961) There the Board, in
changing the rule enunciated in F W Woolworth Co, 109 NLRB 1446,
stated
1T}he date of filing of the petition rather than the issuance of deci-
sion and direction , or of notice of hearing , should be the cut-off time
in considering alleged objectionable conduct in contested cases
From that time , when the Board 's processes have been invoked and
a prompt election may be anticipated pursuant to present procedures,
we believe that conduct thereafter which tends to prevent a free
election should appropriately be considered as a post -election objec-
tion
Id at 1278
The Board has recognized limited exceptions to the Ideal Electric rule
For example , in Gibson 's Discount Center, 214 NLRB 221 (1974), the
Board held a prepetition offer to waive initiation fees contravened the
Supreme Court's ruling in NLRB Y. Savair Mfg. Co, 414 U S 270 (1973),
and was sufficient grounds for setting aside an election Also in Willis
Shaw Frozen Express, 209 NLRB 267 (1974), the Board set aside an elec-
tion based on egregious acts of violence committed in the prepetition
period
duct normally would not be considered as a basis for set-
ting aside the election as it was prepetition conduct.
Nevertheless, the Union argues the prepetition conduct
"poison[ed] the election process" and "generat[ed] fear
among [the] employees." Therefore, the Union contends
the election here must be set aside.
I am of the opinion that the Ideal Electric rule controls
and the prepetition conduct cannot be used as a basis for
setting aside the election. Departures form the Ideal
Electric rule are extremely limited and embrace unique
circumstances which I do not find to exist in the instant
case. Therefore, I find consideration of Respondent's
pre-petition conduct is barred as a basis for setting aside
the election. Stone's Express, 273 NLRB 1152, 1153 fn. 8
(1984); Dresser Industries, 242 NLRB 74 (1979); Bogner of
America, 236 NLRB 822 (1978).
CONCLUSIONS OF LAW
1. La Reina, Incorporated is an employer within the
meaning of Section 2(2) engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 37, Bakery, Confectionery & Tobacco Work-
ers International Union, AFL-CIO, CLC is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By telling assembled employees, on 19 January, that
Respondent's officials were aware that employees were
attempting to organize a union in the plant , Respondent
did not create an impression of engaging in surveillance
of employees' union activities and did not violate the
Act.
4. By telling an employee that Respondent's officials
knew the identity of the employee who started the union
activity and that Respondent had informants who re-
vealed what occurred at the employees' union meetings,
Respondent had created an impression that it was engag-
ing in surveillance of the employees' union and protected
activities in violation of Section 8(a)(1) of the Act.
5. By telling employees Respondent would fire those
employees who 'supported the Union, Respondent had
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed them by the Act and has
thereby violated Section 8(a)(1) of the Act.
6. By interrogating employees about their union sy-
mathies and desires, Respondent has interfered with, re-
strained, and coerced employees in violation of Section
8(a)(1) of the Act.
7. By selecting employees Ramona Mejia, Maria
Ramos, and Beatriz Sanchez for layoff on 24 June be-
cause these employees were involved in activities on
behalf of the Union, Respondent discriminated against
these employees in violation of Section 8(a)(3) and (1) of
the Act.
8. By refusing to allow employee Ramona Mejia to
return to work, after her absence due to illness on 26
February, because Mejia was involved in union and pro-
tected activities, Respondent has violated Section 8(a)(3)
and (1) of the Act.
9. By suddenly requiring strict compliance with a
clothing rule which previously had been enforced in a le-
nient manner and by issuing written reprimands and sus-
pensions to employees who violated the rule, Respondent
LA REINA, INC
has engaged in retailation against the employees for en-
gaging in union and protected activities and has violated
Section 8(a)(3) and (1) of the Act.
10. By transferring employee Maria Ramos to an unde-
sirable work shift on 7 March in retaliation for Ramos
having engaged in union and protected activities, Re-
spondent has violated Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found Respondent has engaged in, and is en-
gaging in, unfair labor practices, I shall order, it to cease
and desist and take certain affirmative action designed to
effectuate the policies of the Act. Specifically, Respond-
ent shall be ordered to offer Ramona Mejia and Beatriz
Sanchez full and immediate reinstatement to their former
positions or, if those positions no longer exist, to substan-
tially equivalent jobs without prejudice to their seniority
or other rights and privileges, discharging if necessary
any employees hired after Respondent's discrimination
against them. Further, Respondent shall be ordered to
make whole Mejia, Sanchez , and employee Maria Ramos
for any losses of earnings they may have suffered as a
result of their unlawful layoffs on 24 January 1984, and
as a result of Respondent's refusal to permit Mejia to
return to work after 26 February 1984, as well as any
loss of earnings suffered by Ramos due to her unlawful
transfer to the night shift on 2 March. Respsondent shall
also make whole employee Marcela Enriquez and the
other employees who were suspended for 1 day on 27
February 1984 due to Respondent's unlawful enforce-
ment of its clothing rule. All backpay shall be computed
in the manner prescribed in F W. Woolworth Co., 90
NLRB 289 (1950) with interest thereon as set forth in
Florida Steel Corp., 231 NLRB 651 (1977).33 In addition,
Respondent shall be ordered to rescind and remove from
its records any reference to the unlawful layoffs and/or
terminations of Mejia , Sanchez , and Ramos , as well as
any reference to the suspension of Enriquez and the
other employees on 27 February 1984. Respondent shall
be required to inform these employees, in writing, that
its unlawful conduct will not be used as a basis for fur-
ther personnel action against them. Sterling Sugars, 261
NLRB 472 (1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed34
ORDER
Respondent, La Reina, Incorporated, Los Angeles,
California, its officers, agents , successors, and assigns,
shall
1. Cease and desist from
(a) Creating an impression of engaging in surveillance
of employees' union activities by informing employees
that its officials know which employees started the union
ss See generally Isis Plumbing Co, 138 NLRB 716 (1962).
34 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
805
organizing effort and that Respondent has informants at-
tending the employees ' union meeting.
(b) Threatening to discharge employees who support
the union.
(c) Unlawfully interrogating employees about their
union sympathies and desires.
(d) Selecting employees for layoff becuase they were
involved in union or other protected activities.
(e) Refusing to allow employees to return to work,
after an absence due to illness because employees were
engaged in union or other protected activities.
(f) Suddenly compelling strict compliance with the
clothing rule through written reprimands and suspensions
as a means of retaliation against employees for engaging
in union or other protected activities.
(g) Transferring employees to undesirable work shifts
in retaliation for employees having engaged in union or
other protested activities.
(h) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Romona Mejia and Beatnz Sanchez immedi-
ate and full reinstatement to their former jobs or, if those
positions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other rights
and privileges previously enjoyed, discharging if neces-
sary any employees hired after the discrimination against
them . In addition , make whole Ramona Mejia, Maria
Ramos, Beatriz Sanchez, Marcela Ennquez, and the
other employees suspended on 27 February 1984 for any
loss of earnings they may have suffered by reason of the
discrimination against them , in the manner set forth in
the remedy section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Remove from its files any reference to the layoffs
of Ramona Mejia, Maria Ramos , and Beatriz Sanchez on
24 January 1984, the subsequent written refusal to permit
Mejia to return to work after her absence on 26 Febru-
ary 1984, and the reprimand and suspension notices
issued to Marcela Enriquez and other employees on 27
February 1984 for violation of the clothing rule. Further,
notify these employees , in writing , that this has been
done and that evidence of these unlawful actions will not
be used as a basis for future personnel action against
them.
(d) Post at its facilities located in Los Angeles, Califor-
nia, copies of the attached notice marked "Appendix."35
as If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of the notice, on forms provided by the Regional
Director for Region 21, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 21 in
writing within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that any allegations contained
in the amended consolidated complaint not specifically
found to be violations are hereby dismissed.
IT IS RECOMMENDED that Objection 2 of the Union
(Petitioner) be overruled and the results of the election
hale on 24 February 1984 be certified.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT do anything that interferes , restrains, or
coerces you with respect to these rights.
WE WILL NOT create an impression that we are engag-
ing in surveillance of your union or other protected ac-
tivities.
WE WILL NOT threaten to discharge you for engaging
in activities in support of Local 37, Bakery , Confection-
ery & Tobacco Workers International Union, AFL-CIO,
CLC, or any other labor organization.
WE WILL NOT interrogate you about union sympathies
or desires.
WE WILL NOT select employees to be laid off because
they are involved in union or other protected activities.
WE WILL NOT refuse to allow you to return to work,
after absences due to illness, because the you have en-
gaged in union or other protected activities.
WE WILL NOT issue written reprimands and suspend
you for violating our clothing rule in retaliation for our
having engaged in union or other protected activities.
WE WILL NOT transfer you to undesirable work shifts
because you have engaged in union or other protected
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Ramona Mejia and Beatriz Sanchez
immediate and full reinstatement to their former jobs or,
it those jobs no longer exist, to substantially equivalent
jobs without prejudice to their seniority or other rights
and privileges, discharging if necessary any employees
hired after our discrimination against them, and WE WILL
make whole Ramona Mejia, Maria Ramos, Beatriz San-
chez, as well as Marcela Enriquez and any other employ-
ees suspended on 27 February 1984 for violating the
clothing rule for any loss of earnings they may have suf-
fered because of our discrimination against them.
WE WILL remove from our records and other files any
reference to the unlawful layoffs of Ramona Mejia,
Maria Ramos, and Beatriz Sanchez, our subsequent writ-
ten refusal to permit Ramona Mejia to return to work,
and the reprimand and suspension notices issued to Mar-
cela Enriquez and the other employees for violating the
clothing rule on 27 February 1984, and WE WILL notify
these employees, in writing, that evidence of this unlaw-
ful action will not be used as a basis for future personnel
action against them.
LA REINA, INCORPORATED