Latino Express, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 12, 2011

13-CA-046528 (N.L.R.B. Jul. 12, 2011)

JD–40–11
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
LATINO EXPRESS, INC.
and Cases 13–CA–46528
13–CA–46529
CAROL GARCIA, AN INDIVIDUAL 13–CA–46634
and
PEDRO SALGADO, AN INDIVIDUAL
and
TEAMSTERS, LOCAL UNION NO. 777,
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD TEAMSTERS, AFL–CIO
Jeanette Schrand, Esq., for the General Counsel.
Zane Smith, Esq. (Zane D. Smith & Associates, Ltd.), of
Chicago, Illinois, and Sheila Genson, Esq. (The Law
Office of Sheila A. Genson, Ltd.), of Schaumburg, Illinois,
for the Respondent.
Gregory Glimco, of Brookfield, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Chicago, Illinois,
on April 25–27, 2011. The charge in Cases 13–CA–46528 and 13–CA–46529 were filed on
January 18, 2011,1 and the charge in Case 13–CA–46634 was filed on March 9. The complaint
issued April 6. The consolidated complaint (complaint) alleges that: Latino Express, Inc. (the
Company) violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by
discharging Carol Garcia and Pedro Salgado on December 10, 2010, and January 12, 2011,
respectively, for engaging in protected concerted activities.
The Company is also charged with a myriad of violations of Section 1 of the Act:
preventing employees from discussing terms and conditions of employment with one another;
creating an impression that employees’ union organizing activities were under surveillance;
promising improved benefits to, and soliciting grievances from, employees during a union
organizing campaign; interrogating an employee by asking him whether he supported the Union;
threatening to discharge employees if they unionized; threatening to close the facility and move

1 All dates are from September 2010 to February 2011 unless otherwise indicated.
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the Company to a different location in the event the employees unionized; and warning
employees that it would be futile to form a union because the Company would never agree to
allow a labor organization to represent them.2
The Company denied the material allegations of the complaint and asserts that Garcia
was discharged for threatening her supervisor, while Salgado was discharged for stealing
company money for charter services.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Company, I make the following
Findings of Fact
I. Jurisdiction
The Company, a corporation, with an office and place of business in Chicago, Illinois,
has been engaged in the business of providing bus transportation services for students as well
as charter bus services to the general public. In conducting its transportation services, the
Company annually derives gross revenues in excess of $250,000, and purchases and receives
at its Chicago facility goods and materials valued in excess of $5000 from points directly outside
the State of Illinois. The Company admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Company’s Operations
1. General operations
The Company provides bus transportation services within the Chicago metropolitan
area. Its primary work arises from a contract with the Chicago Public Schools (CPS) system for
the 2010–2011 school year. At all material times the following individuals were employed in
supervisory capacities within the meaning of Section 2(11) or as agents within the meaning of
Section 2(13) of the Act: Michael A. Rosas Sr.—president;3 Henry Garduñio—vice president;

2 At the end of the second day of trial, the General Counsel moved to amend par. V(5)(e) of
the complaint to allege additional Sec. 8(a)(1) violations based on subpoenas duces tecum
served on three employees on April 18, 2011; the subpoenas sought production of union-related
pamphlets, letters, emails, notices or electronic communications. (Tr. 497–499.) After legal
argument at the outset of the third and last day of trial, I found plausible merit to the proposed
motion to amend. See Guess ?, Inc., 339 NLRB 432, 434 (2003); Wright Electric, Inc., 327
NLRB 1194 (1999); National Telephone Directory Corp., 319 NLRB 420 (1995). However,
relying on Stagehands Referral Service, LLL, 347 NLRB 1167 (2006), I denied the application
on the ground that it was inexcusably late and prejudicial to the Company. (Tr. 566–575.)
3 During a pretrial conference on April 7, the Company’s trial counsel noted the similarity in
names between me and the Company’s President, Michael A. Rosas, Sr. I informed counsel for
the parties that I was unaware of any extended family relationship between me and Mr. Rosas.
The Company’s counsel responded that he was unaware of any information to the contrary.
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Joseph Garduñio Sr.—owner; Victor Gabino—maintenance director; Sarah Martinez—
dispatcher/manager; 4 and Raymundo Del Toro, Jr.—charter director.5
The Company is owned in equal one-third shares by Michael A. Rosas, Sr., Henry
Garduñio, and Joseph Garduñio. Henry Garduñio oversees the Company’s daily operations.6
Sylvia Torres is an administrative assistant with a myriad of responsibilities, including payroll, bill
payments, scheduling of meetings, and implementing employee discharges.7
Carol Garcia was employed as a bus driver by the Company during the 1990’s before
returning to their employ in September 2008. Pedro Salgado had been employed by the
Company on and off since July 2006 as a standby driver to fill in for regularly scheduled drivers.
2. Charter services
In addition to providing bus transportation to the CPS, the Company provides charter
bus transportation to other organizations. Those organizations pay for the charters by cash,
check, money order or purchase order. Raymundo Del Toro was the charter director until he
was terminated in December. He was required to compensate charter drivers by check for one-
third of the amount charged the customer. There was no written policy relating to charter
assignments and Del Toro had complete discretion as to whom they were assigned.
Unbeknownst to management, however, Del Toro paid several drivers by cash for their charters.
These employees included Pedro Salgado, Sosino, Salvador, Juvencia, Pedro Garcia, Alfonzo
Avila, Telmo Hernandez, Nicolas Paredes, and David Guerraro.8
Salgado was assigned a charter during the fall of 2010, but his subsequent paycheck did
not reflect compensation for that service in accordance with Company procedure. He
approached Del Toro, who instructed him to return later and refrain from speaking to anyone
about the matter. Salgado returned later and Del Toro handed him $100 in cash.9
At some point after employees went on vacation status during the December 2010–
January 2011 school holiday recess, Garduñio learned from a clerical assistant who reviewed

4 The Company admits supervisory and agent status on the part of these individuals. (GC
Exh. 1(k).)
5 Del Toro was not listed in the complaint as a statutory supervisor or agent. Essentially
seeking to conform the pleadings to the proof, the General Counsel, citing Oakwood Healthcare,
Inc., 348 NLRB 686 (2006), established that Del Toro was a company supervisor and agent
based on testimony that he exercised independent judgment to assign charter work. (Tr. 323.)
6 Unless otherwise stated, all references to Garduñio are to Henry Garduñio. (Tr. 582–583.)
7 Although not pled in the complaint, Garduñio testified that she was part of his management
team and was given the responsibility of notifying former Charter Director Del Toro that he was
terminated. (Tr. 626–628, 649-650.)
8 Although not disputed that there was a Company procedure requiring Del Toro to pay
charter drivers by check, there was no evidence that drivers were actually prohibited from
receiving their charter compensation in cash. (Tr. 322–326, 351, 382-386.)
9 I found Salgado credible on this point, even though he conceded that receiving
compensation in cash seemed inappropriate. The Company, even though it called Del Toro, did
not challenge Salgado’s assertion that he did, in fact, perform the charter at issue and received
only $100 in cash for his services. (Tr. 387–389, 403–404, 420-423.)
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invoices that Del Toro was misappropriating charter money.10 Del Toro would deposit checks
into his checking account and, after they cleared, would pay the charter drivers in cash.11
3. Policies
Several Company policies or procedures are at issue. Three of them appear typical to
the normal operation of a business. The first involves employee raises. Based on the
Company’s typical 3-year contracts with the CPS, the Company typically determines the amount
of employee salaries prior to the beginning of the contract term.12 A second policy prohibits
stealing. An example of stealing is where an employee fails to turn into the Company money
received from a customer for a charter.13 The third policy is a vague and inconsistent prohibition
against threats to other employees; prior to 2010, Garduñio terminated one employee for
threatening him, but took no action against another employee for the same conduct. More
recently, in February 2011, Garduñio issued a verbal warning to an employee for intimidating
two other employees.14
The last policy at issue relates to the Company’s penchant for avoiding insurance
coverage for property damage claims. Whenever an employee, while in the scope of his/her
employment, causes property damage to a Company or other vehicle, the Company requires
the employee to reimburse the Company for 25 percent of the damages. In return for such
compliance, the Company does not document the incident in the employee’s driving record.15
B. The Union Organizing Campaign
The union organizing campaign began in November 2010. After being contacted by
employee Frank Hernandez, Union Organizer Elizabeth Gonzalez provided authorization cards
and scheduled meetings with employees to discuss the prospects for the formation of a

10 Although Melissa Morales did not testify, it is not disputed as to how Garduñio learned
that Del Toro was stealing money from the Company. (Tr. 639–641.)
11 Notwithstanding Del Toro’s concession that he was stealing money from the Company (R.
Exhs. 12–14.), there was no testimony to indicate that charter drivers whom he paid in cash
failed to provide charter services or received more than one-third of the charter amount paid by
customers for their services. (Tr. 325–327; R. Exhs. 5A–B, 6A–B, 7D(5), 7D(22)–23, 7D(25)–
(26).)
12 Although not disputed that salaries needed to be determined before submitting a bid to
the CPS, it is unclear as to when bids were due for the next bus services contract. (Tr. 644-
646.)
13 Garduñio was evasive as to whether a charter driver was at fault for accepting cash from
the charter director for services performed. On cross-examination, he sidestepped the role of
the charter director and maintained that an employee stole money from the Company if he/she
received cash for a charter and “if we don’t know about this cash.” (Tr. 612–614.)
14 In spite of counsel’s leading questions, Garduñio conceded that there is no written policy
prohibiting employee threats. He eventually caught on and testified that there was an unwritten
policy against threats. (Tr. 688-689.) That policy is, at best, inconsistent. On February 11, driver
Kennith Mitchel received a verbal warning for intimidating two other employees. (R. Exhs. 7D–
18.) In another instance, Garduñio immediately terminated Miguel Saballo for threatening him.
(Tr. 607–608.) In yet another instance, however, he took no action against an employee who
threatened him 2 years earlier and recently assaulted him. (Tr. 687–688.)
15 The Company’s practice of charging their employees for the cost of automobile damage
was not disputed. (Tr. 215–217, 363, 684-686.)
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bargaining unit. Several weeks later, in late November 2010, Hernandez met with Elizabeth
Gonzalez and they agreed to initiate an organizing campaign with company employees. Within
days, Hernandez succeeded in having several employees, including Carol Garcia and Pedro
Salgado sign union authorization cards. He was also able to enlist them to solicit signatures
from other employees.16
On December 9, Gonzalez and two other union representatives met with the first group
of employees at Mariscos El Abuelo y Yo, a local seafood restaurant (the seafood restaurant),
for about 1-1/2 hours. Located at the corner of 38th Street and Kedzie Avenue, the seafood
restaurant was about a city block away from the Company’s facility. The employees in
attendance included Hernandez, Carol Garcia, Pedro Salgado, Major Rose, Edwardo Farerra,
and Pedro Garcia. Gonzalez received 27 union cards and gave the employees more to
distribute to other employees.17
When the meeting ended, the employees and union representatives exited the
restaurant at about 6 p.m. and congregated briefly on the corner. Gonzalez and the other two
union representatives wore jackets and hats emblazoned with Teamsters insignias. Their
location was well lit by street lights. At that point, Sara Martinez, the Company’s
dispatcher/manager, was in a company vehicle a short distance away in the adjacent
intersection. As she waited for the traffic light to turn green, Martinez looked directly at the
employees.18 Upon returning to the facility, Martinez reported her observations to Garduñio.19
C. December 10
On December 10, the day following the meeting at the seafood restaurant, Del Toro
informed Pedro Garcia over the company radio that Maintenance Director Victor Gabino wanted
to speak with him. Pedro Garcia complied and immediately reported to Gabino. Gabino
proceeded to inform Garcia that he learned of the Union’s organizing efforts and that many of
the drivers were upset with that activity. Pedro Garcia acknowledged the union activity and
proclaimed his support for the Union.20
Later that same day, Pedro Garcia, along with coworkers Ramiro and Tina, were
summoned to a meeting in a conference room with several managers and supervisors, including

16 Although undisputed that Garcia and Salgado solicited coworkers and/or obtained
signatures for union authorization cards, there is no direct proof that Company managers or
supervisors knew about their activity. (Tr. 56–60, 251-252, 254-255, 259-261, 354–357, 361;
GC Exhs. 5, 7.)
17 Similarly, it is not disputed that this activity occurred and that Carol Garcia and Salgado
were present. (GC Exh. 2; Tr. 58–60, 64–69, 90–92. 260–264, 358, 471-472.)
18 Witness estimates as to Martinez’s distance from the group ranged from 20 to 50 feet.
Nevertheless, the credible and fairly consistent testimony of meeting participants as to the
lighting conditions, as well as Martinez’ nearby position as she observed the group, went
unrebutted. (Tr. 72–75, 91-92, 120-122, 264–266, 304–313, 358–360, 409–413, 438-439, 445–
449, 469–477.)
19 Without Sara Martinez’ testimony to shed a different light, I found it suspicious that she
would simply tell Garduñio that she observed a group of employees leaving a restaurant and
nothing else. (Tr. 612, 692-694.)
20 Gabino was not called as a witness to refute Pedro Garcia’s credible testimony regarding
this meeting. (Tr. 92-98, 122-124.)
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Michael Rosas Sr., Michael Rosas Jr., and Sara Martinez.21 Michael Rosas Sr. directed his son,
Michael Rosas Jr., to address the employees. Michael Rosas Jr. proceeded to inform the
employees that company management was aware of the union organizing campaign.22 Ramiro
promptly expressed his opposition to the formation of a union. Rosas Jr. followed with a promise
to improve employee benefits, which led to a heated exchange between Pedro Garcia and
Ramiro about unionized bus companies in the Chicago area. Martinez then challenged Pedro
Garcia to name a unionized bus company in Chicago. The discussion moved to the issue of
standby drivers. Pedro Garcia argued in favor of higher wages for standby drivers, while
Michael Rosas Sr. responded that the Company would consider giving the employees 2 weeks
of paid vacation. He added that the Company would schedule a meeting to propose those
benefits to the drivers after the holidays.23
D. Carol Garcia
On June 5, 2010, Carol Garcia was involved in a motor vehicle accident while operating
a Company bus.24 The other vehicle sustained approximately $4000 worth of property
damage.25 Sometime in September, in accordance with Company practice, Melissa Morales, a
clerical assistant, presented Garcia with a bill for $800, or approximately 25 percent, of the total
cost of the accident paid out by the Company. Garcia did not dispute her culpability for the
accident, but insisted on speaking with Garduñio first before signing the reimbursement
agreement.26
Garduñio spoke to Garcia on September 20. He informed her that employees were
required to pay for 25 percent of the Company’s costs for any damages caused by an
employee’s operation of a company vehicle. Garcia protested having to take responsibility for
the damages and suggested that the practice was attributable to the Company’s lack of
insurance coverage during the summer months. She also mentioned that she discussed this
issue with coworkers and that they were not happy about this and other aspects of their work.
Garduñio denied Garcia’s contention that the Company lacked insurance and instructed her to
refrain from speaking about such issues with coworkers. Garcia challenged Garduñio to
produce proof of insurance coverage. Reacting to Garcia’s relentless resistance to the
reimbursement issue, Garduñio told her to wait while he went to his office to check her driving

21 There was insufficient evidence to establish that another participant, Sylvia Torres, was a
statutory supervisor. Pedro Garcia believed that she was “in charge of the office that’s upstairs.”
(Tr. 99.) Such a vague description of Torres’ duties are insufficient to establish supervisory
status.
22 Given the credible and undisputed evidence as to what Michael Rosas Jr. and Gabino
told employees on December 10, I do not credit Garduñio’s assertion that he only learned about
the union activity after he received a letter from the Union in mid to late January 2011. (Tr. 637.)
23 I base this finding on Pedro Garcia’s credible and unrebutted testimony. (Tr. 98-104, 129-
130, 135–137.) Given that none of the company witnesses testified, I find Garduñio’s reference
to the Company’s prior announcement that it was considering a 401(k) benefits plan to relate to
the December 10 meeting. (Tr. 643.)
24 All references in this section to Garcia are to Carol Garcia.
25 Carol Garcia conceded that she was at fault in the accident, which resulted in
approximately $4000 worth of damages, with $3189 of that amount paid by the Company. (Tr.
215–217, 231–233, 684-686.)
26 I base this finding on Garcia’s credible and unrebutted testimony. (Tr. 217–219, 226-227;
GC Exh. 3.) Subsequent testimony revealed that “Melissa” was Melissa Morales, a clerical
assistant. (Tr. 628.) She did not testify.
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record. He returned a few minutes later, told Garcia that he would reduce her responsibility for
the accident costs by half to $400, but directed her not to divulge the agreement to anyone and
to stop “riling” up other workers. Garcia reluctantly agreed to sign the agreement.27 As the
encounter wound up, however, she approached Garduñio and, from a few feet away, pointed a
finger at him and warned that he “would pay for this.” Garcia added that “[w]hen somebody
plays with my money, I get them back.” Garduñio, clearly satisfied by the fact that Garcia signed
the agreement, ignored her remarks and went about his business.28
Still seething from her September 20 encounter with Garduñio, Garcia raised the issue
with several people, including several coworkers. Subsequently, Garcia, Pedro Salgado, Frank
Hernandez, and several other employees met at a local Chinese restaurant to discuss several
work-related issues, including wages, work assignments, and the accident reimbursement
policy. The meeting concluded with the participants deciding that Hernandez would explore the
possibility of employee representation by a labor organization.29
On December 10, Garcia returned to the drivers’ room after completing her bus route
when Garduñio called her into a meeting in the dispatcher’s office. This was the day after she
attended the meeting in the seafood restaurant and the same day that several supervisors
informed employees that they knew about and opposed the union organizing effort. With
Melissa Morales present, he handed Garcia a violation notice terminating her employment. After
some discussion as to whether Garcia could read Spanish, Garduñio read the portion reflecting
her alleged threat: “You’re going to pay me back for this. When a person does something to me,
I will do something to get back at this person. They’re not going to play with my money.” Garcia
asked for the particulars as to when and where she made that statement. Garduñio said that the
incident related to the earlier discussion in his office about reimbursement for her accident.
Garcia did not dispute making the statement, but noted that the discussion took place outside
Garduñio’s office. Garduñio responded that he felt threatened by her remarks and consulted an
attorney, who advised that he could discharge her.30

27 GC Exh. 4.
28 My findings as to the September 20 incident are based on portions of testimony by
Garduñio and Garcia. Garduñio’s testimony, contradicted by several pretrial statements, was
not entirely credible. Nevertheless, I credited much of his version regarding Garcia’s outburst. I
also credit his testimony that Garcia did not mention, at that point, any employee interest in a
union, as the weight of the credible evidence indicates that employee interest in a union began
in November. (Tr. 608–609, 679–687, 710–713, 722.) I was not impressed by his irrelevant
contention, however, that Garcia, stipulated to weigh much more than Garduñio, placed him in
fear for his physical well-being. (Tr. 683-684.) Nevertheless, coupled with my observation of her
earlier testimony containing specific details of the encounter, Garcia’s tentative response on
rebuttal, when asked whether she warned Garduñio that he was going to pay her back or that
she would get back at him in some way – “No, that I recall, no” – was unconvincing. On the
other hand, Garduñio did not deny Garcia’s contentions regarding the lack of insurance
coverage, his prohibition against “riling” up coworkers and the fact that he consulted an attorney
before deciding to terminate her. (Tr. 230–242, 270-272, 779–780.)
29 There is no dispute that this protected concerted activity took place. (Tr. 86–89, 245–251,
352–355, 486-489.)
30 Garcia challenged Garduñio’s recollection as to whether the statement was made in his
office or outside the office. She did not, however, deny making the statement. (Tr. 266–273; GC
Exh. 6.) On the other hand, Garduñio did not refute her testimony that he consulted an attorney
before terminating her. (Tr. 271.) That seemed more plausible than his assertion that he
wondered what to do about the incident for 2 months before being inspired by a police officer in
Continued
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E. The January 6 Meeting
Following up on management’s remarks to employees on December 10, the Company
convened a meeting when the drivers returned to work after the holidays on January 6. At this
meeting, Garduñio announced two major developments: a 50-cent hourly wage increase for
drivers, effective the following week;31 and a change in the charter assignment process from
one that generally favored office staff and mechanics to one deferring to the drivers based on
seniority. Garduñio also told the employees during this meeting that they should form a drivers’
committee with whom he would meet to discuss issues of concern.32
At the January 6 meeting, Garduñio also announced that Del Toro was no longer the
charter director. Salgado asked Garduñio why drivers were being paid in cash. After asking
Michael Rosas Sr. if he knew anything about it, Garduñio denied that such a practice existed
and asked Salgado for more details. Realizing that his remark caused a stir among the drivers,
Salgado declined to say anything else.33
F. January 7
The day after the January 6 meeting, Salgado and Hernandez had a conversation with
Supervisor Victor Gabino. Gabino warned that the Union would charge the employees a lot of
dues, asked why they needed a union, and suggested they form a committee to pursue their
issues with management. Hernandez responded that “we already had our committee, that we
had 65% of the drivers signed up.”34
On the same day, Garduñio approached Salgado, Frank Hernandez, and another driver,
Telmo Hernandez, as they sat in the lunchroom. He asked Salgado how he heard about the
charter drivers being paid cash. Salgado responded that he heard rumors to that effect and
suggested he check with the charter director. After Telmo Hernandez remarked that such a
_________________________
a community patrol group (“CAPS”) who suggested that “[y]ou cannot be nice with these
people.” (Tr. 687–688.)
31 The wage increase became effective the following pay period. (Tr. 109, 601–602.)
32 Garduñio’s announcement of these changes at the meeting is not disputed. (Tr. 104–109,
362–364, 414–418, 481-482, 599–604, 648–652.) Notwithstanding Garduñio’s subsequent
denial, his shifting and contradictory testimony, his statements in a Board affidavit, as well as
the Company's position statement, establish that he knew about employee union activity prior to
January 6. (Tr. 631–635; GC Exh. 12.) Moreover, given Garduñio’s lack of credibility on this
issue, it is also clear that any statements by him to unidentified employees refusing to meet with
a group, if true, would have occurred after January 6. (Tr. 605–606, 668–671.)
33 The differences in testimony as to what Salgado blurted out to Garduñio were
insignificant. Pedro Garcia, Frank Hernandez and Salgado testified that Salgado raised the
issue of cash payments for charters, while Garduñio testified that Salgado complained that he
was owed money. (Tr. 107-109, 365–366, 416–419, 449–451, 479–481, 638–640, 653.)
Although I find it more credible that Salgado raised the issue of cash payments and was not
claiming to be owed anything, either version established that Garduñio had reason to believe
that Salgado actually performed the charter services that he was referring to.
34 I base this finding on the credible and unrebutted testimony of Salgado and Hernandez.
Hernandez said that the conversation took place between December and January, while
Salgado pinpointed the date as January 7. (Tr. 369–371, 457–459.)
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practice was attributable to Company’s desire to avoid Federal income taxes, Frank Hernandez
turned the conversation to Carol Garcia’s discharge.35
G. Pedro Salgado
After Salgado’s remarks at the January 6 meeting, Garduñio sought to determine which
drivers received payments in cash from Del Toro for their charter services. He eventually
determined that about 12 drivers received cash payments from Del Toro. Of those 12 drivers,
only Salgado was terminated. On January 12, Garduñio terminated him on the ground that he
stole from the Company. Unlike Salgado, however, other drivers were afforded the opportunity
to return the money they received from Del Toro. Some were placed on probation; others have
never been disciplined.36
H. Additional Interrogation
Sometime in late January or early February 2011, the Company convened a meeting of
the drivers to listen to a speaker on the subject of union membership and its disadvantages. At
some point during the meeting, Garduñio learned that an employee was filming the
presentation. He went down to the meeting and stopped the filming.37 After the meeting,
Garduñio approached several drivers in the drivers’ room. After asking one of them his position
on union affiliation, Garduñio asked Hernandez why he was wearing a union shirt at work and
noted that the shirt bothered some of the drivers. After Hernandez rejected his comment,
Garduñio said that the CPS did not like to do business with union companies. He added that
union affiliation would cause the Company to bid higher on future CPS contracts, reduce its
driver work force, and possibly lose CPS contracts. He concluded the discussion by
commenting that they did not need a third party involved, adding that “we could talk about
this.”38

35 I base this finding on the credible and unrebutted testimony of Salgado and Hernandez.
(Tr. 367–368, 451–452.). Garduñio’s testimony that he was invited into the meeting is not
credible, given that he wanted to talk to Salgado about the charter situation. (Tr. 672–673.)
36 There is no dispute that Del Toro stole the Company’s share of charter fees. However,
Garduñio also insisted on classifying the act of employees being paid cash for services as theft
when they actually performed the charter services. That contention was not credible, especially
when applied as a justification for Salgado’s discharge, while issuing lesser discipline to others.
It was evident that he had already determined to discharge Salgado when he met with him on
January 12. Nor did he testify that he offered Salgado, unlike the other employees, an
opportunity to pay back the cash he received for services rendered. Based on the foregoing,
Garduñio’s contention that he is still investigating some of other drivers is simply incredible. (GC
Exhs. 8–10; Tr. 372–375, 377–389, 426-427, 613-626, 654-655.)
37 I initially sustained the Company’s objection as to testimony about the guest speaker
coming in to address the drivers on the ground that such an event was outside the scope of the
complaint and the General Counsel’s excuse that the General Counsel might seek to amend the
complaint at that late juncture was inadequate. (Tr. 452–455.) However, the Company later
developed testimony about the guest speaker on cross-examination (Tr. 490–491), the General
Counsel pursued that line on further examination (Tr. 629–630) and the Company followed up
with yet more testimony about that meeting. (Tr. 673–678.) The General Counsel did not,
however, follow up with an application to amend the complaint.
38 I found the testimony of Hernandez and Pedro Garcia more credible than that of Garduñio
as to whether the latter was invited by the drivers into a meeting or thrust himself upon them.
Garduñio’s contention that he was invited was significantly contradicted by his pretrial affidavit
Continued
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Around the same time, Gabino followed up on Garduñio’s statements with a warning to
Hernandez that the Company might close the facility and re-open elsewhere in order to avoid
the Union.39
III. Legal Analysis
A. 8(a)(1) Violations
The amended complaint alleges that the Company violated Section 8(a)(1) by:
preventing employees from discussing terms and conditions of employment with one another;
creating an impression that employees’ union organizing activities were under surveillance;
promising improved benefits to, and soliciting grievances from, employees during a union
organizing campaign; interrogating an employee by asking him whether he supported the Union;
threatening to discharge employees if they unionized; threatening to close the facility and move
the Company to a different location in the event the employees unionized; and warning
employees that it would be futile to form a union because the Company would never agree to
allow a labor organization to represent them. The Company denied the allegations in its answer,
but did not offer evidence to the contrary as to some of them.
It is an unfair labor practice for an employer to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. 29 U.S.C. 158(a)(1). Section 7 confers upon
employees the right to self-organization, to form, join, or assist labor organizations, and to
engage in other concerted activities for the purpose of mutual aid and protection. 29 U.S.C. 157.
Employees may be said to be exercising their Section 7 rights where they discuss organizing
amongst themselves. Central Hardware Co. v. NLRB, 407 U.S. 539, 542 (1972). Similarly,
employees are engaged in Section 7 activity where they are seeking to improve terms and
conditions of employment. Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). Where an individual
employee seeks to improve terms and conditions of employment his actions are protected under
the Act if he intends to induce group activity or acts as a representative of at least one other
employee. NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984). Additionally, where an
employee raises a common concern in a group meeting the Board has found that action to be
concerted activity. E.g. Grimmway Farms, 315 NLRB 1276, 1279 (1995).
An 8(a)(1) violation exists where an employer interferes with, restrains, or coerces
employees in the exercise of their Section 7 rights. 29 U.S.C. 158(a)(1). Determinative in finding
such a violation is whether the employer engaged in conduct that may reasonably tend to
interfere with the free exercise of employee rights under the act. Munro Enterprises, Inc., 210
NLRB 403, 403 (1974). Inherent in this test is that to prove a Section 8(a)(1) violation the
General Counsel need not prove either intent on the part of the employer, nor that the conduct
actually had the effect of coercion on the part of the employee. Hanes Hosiery, Inc., 219 NLRB
338, 338 (1975).
1. Impression of surveillance
The General Counsel contends that the Company unlawfully created an impression of
surveillance through comments made by both Victor Gabino and Henry Garduñio to various
_________________________
and was, therefore, not credible. Moreover, he did not refute their testimony as to his statements
at the meeting. (Tr. 111-112, 456–457, 588–591, 598–599, 704–706.)
39 I base these findings on Hernandez’s credible and unrebutted testimony. (Tr. 457–458.)
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employees concerning their involvement in the union organizing campaign. The Company
denied the allegation, but did not address these particular alleged violations in its brief. The test
for determining whether an employer has created an impression of surveillance is whether the
employee would reasonably assume from the employer’s statements that he had been placed
under surveillance. Register Guard Publishing Co., 344 NLRB 1142, 1144 (2005). The Board
does not require evidence that the employer actually learned of the employee’s activity, nor
does it require evidence that the employee intended his union activity to be covert. Flexsteel
Industries, 311 NLRB 257, 257 (1993). Rather an employer violates Section 8(a)(1) by
indicating that it is closely monitoring the degree of an employee’s union involvement. Id.; see
Emerson Electric Co., 287 NLRB 1065, 1065 (1988) (finding an 8(a)(1) violation where the
employer told the employee that he knew he was involved in the union activity, but also that he
was neither a “pusher” for or against the effort); Homer D. Bronson Co., 349 NLRB 512, 512
(2007) (holding that an 8(a)(1) violation existed where the employer told the employee that he
was aware the employee spoke to other employees about a union).
Here, Victor Gabino’s conversation with Pedro Garcia, in which Gabino indicated that he
was aware that Garcia was among the employees who wanted to unionize, constitutes an
impression of surveillance. Although Gabino did not make any direct threats with regard to this
knowledge, an impression of surveillance was created by simply informing Garcia that he was
aware of his union activity. Under the Board’s test, Garcia would reasonably assume that he
had been placed under surveillance, thus violating the Act.
Similarly, Garduñio’s statement to Garcia and some other drivers that he knew
something was going on, and would kick those drivers out once he found out, also created an
impression of surveillance. As stated in Flexsteel, the Board does not require that the employer
actually find out what Section 7 activity the employees are engaged in. 311 NLRB at 257.
Rather, his statements clearly gave the impression that the employees were being placed under
surveillance. Accordingly, this constitutes an 8(a)(1) violation.
2. Promising improved benefits
The General Counsel contends that the Company unlawfully sought to give its
employees improved benefits during their union organizing campaign in the form of a promise to
increase vacation time or increase wages. The Company contends that the actions were lawful
because they were not accompanied by any comments that the benefits would be granted to
employees contingent on them rejecting the Union.
An 8(a)(1) violation exists where an employer announces, promises, or grants benefits in
order to discourage union support. Curwood, Inc., 339 NLRB 1137, 1147 (2003). As stated by
the Supreme Court, the danger inherent in well-timed increases in benefits is the implication that
employees must disavow support for a union in order to continue to receive these benefits.
NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964). It is sufficient that these benefits are
conferred during an organizing campaign in order to constitute interference with employees’
Section 7 rights. Hampton Inn NY – JFK Airport, 348 NLRB 16, 17 (2006). The employer must,
however, have knowledge of the union activity in order for a grant of benefits to be considered
unlawful. Norfolk Livestock Sales Co., 158 NLRB 1595, 1595 (1966). Where the employer is
offering increased benefits simply in an attempt to decrease the future appeal of unionizing,
rather than an attempt to decrease the appeal of a current campaign, that does not constitute an
8(a)(1) violation. Hampton Inn, 348 NLRB at 17.
Here, the promise to increase benefits, either in the form of a 2-week paid vacation, or in
the form of a wage increase in the January 6 meeting (depending on what the employees would
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rather have had), constituted interference with the employee’s Section 7 rights. At this point, the
Company clearly knew of the union activity, and was intent on defeating the organizing
campaign, as evidenced by Michael Rosas Jr.’s proposal to increase vacation time during his
prior conversation with Pedro Garcia. Previous comments, such as those made by Gabino and
Garduñio, also demonstrated the Company’s desire to deter the employees from unionizing.
Accordingly, this increase in benefits cannot be said to have been aimed at decreasing the
general appeal of unionizing, but rather, was aimed at defeating the organizing campaign.
The Company incorrectly argues that the benefits were not unlawful because there were
no statements directly linking them to the employees’ support of the Union. The Board,
however, has made clear that it does not need such explicit and direct evidence to find an
employer’s granting of increased benefits to be unlawful. See Yale New Haven Hospital, 309
NLRB 363, 366 (1992) (stating that absent a showing of a legitimate business reason for the
timing of a grant of benefits during an organizing campaign, the Board will infer improper
motive). The employer failed to offer any evidence supporting that the proposed increase in
vacation time and promised increase in wages were a result of a valid business justification.
Rather, the timing of the benefits, coupled with the December 10th meeting between Rosas and
Garcia, clearly indicate an attempt to use these benefits to defeat the organizing campaign, thus
constituting an 8(a)(1) violation.
3. Solicitation of grievances
The General Counsel contends that the Company unlawfully sought to solicit grievances
from its employees, in the form of a committee, in an attempt to defeat the union organizing
campaign. The Company contends that Garduñio sought to solicit grievances prior to his actual
knowledge of the union organizing campaign and, in fact, refused to solicit further upon learning
of the employees’ efforts.
An employer interferes with Section 7 rights where he solicits employee grievances
during an organizational campaign and promises, either expressly or implied, that those
grievances will be remedied. Briarwood Hilton, 222 NLRB 986, 989 (1976); see Capital EMI
Music, 311 NLRB 997, 1007 (1993) (holding that soliciting grievances during union organizing
inherently constitutes an implied promise to remedy them). Implicit in that promise is that
unionizing is unnecessary because the employees’ grievances will be righted absent a union.
House of Mosaics, Inc., 215 NLRB 704, 704 (1974). Where an employer solicits grievances in
accordance with past practices, prior to any union activity, however, he may not have violated
the Act. Yale New Haven Hospital, supra at 365.
Here, the Company directly solicited employee grievances by virtue of Garduñio’s
suggestion that they form a committee to address their problems at the January 6th meeting.
There is no proof that the Company ever solicited employee grievances before then. Occurring
during an organizing campaign, which management was well aware of, Garduñio’s statement
evidences Company interference with employees’ Section 7 rights in violation of Section 8(a)(1).
4. Employee interrogation
The General Counsel contends that the Company unlawfully interrogated an employee
by asking him whether he supported the Union. The Company denies the allegation and insists
that he made the statement after being invited into a meeting with the drivers.
Employee interrogations that tend to coerce or interfere with Section 7 rights are
unlawful. Rossmore House, 269 NLRB 1176, 1177 (1984). In determining whether an
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interrogation is unlawful, the Board considers all of the relevant circumstances. Id. Factors
include the scope of the questioning, the interrogator’s position in the company, and the
particularized nature of the information sought. Cumberland Farms, 307 NLRB 1479, 1479
(1992). Where the interrogation occurs in an atmosphere of animosity toward the union, and is
directed at discovering the identity of union organizers, it may be coercive. M.F.A. Oil Co., 162
NLRB 1071, 1074 (1967).
Garduñio approached a group of drivers in February 2011 and asked one of them what
his position on the Union was. Contrary to the General Counsel’s contention, the fact that
Garduñio’s actions caused other employees to cover their union insignia is irrelevant. As with all
8(a)(1) violations, the Board does not look to the actual effect that the conduct had, but rather
looks at the conduct from an objective standpoint. Hanes Hosiery, Inc., 219 NLRB 338, 338
(1975). Analyzed objectively, however, the circumstances reveal a coercive encounter.
Garduñio, the Company’s part owner and top operating official, made the inquiry of an
employee coupled with a statement to Frank Hernandez that they needed to talk about the
union situation. The totality of the circumstances establishes Garduñio unlawfully interrogated
an employee in violation of Section 8(a)(1).
5. Threat of discharge
The General Counsel contends that Garduñio unlawfully threatened to discharge
employees if they unionized. The Company denied the allegation.
The expressing of any views does not constitute an unfair labor practice if they contain
no threat of reprisal, force of promise or benefit. 29 U.S.C. 158(c); see Southern Frozen Foods,
Inc., 202 NLRB 753, 755 (1973) (finding no violation where employer’s remarks were
ambiguous in that they did not clearly imply a threat that a union victory would automatically be
followed by a loss of employment). An employer may make a prediction as to the precise effects
he believe unionization will have on his company without violating Section 8(a)(1). See NLRB v.
Gissel Packing Co., 395 U.S. 575, 618 (1969) (holding that a prediction carefully phrased on
objective fact that conveys an employer’s belief as to demonstrably probable consequences is
not unlawful). Where the employer’s basis for such predictions is not objective fact, however,
predictions may violate the Act. See Patsy Bee, Inc., 249 NLRB 976, 977 (1980) (finding
violation where employer had no indication from union that it would make demands which would
cause economic hardship, let alone plant closure; nor did he have evidence that his customers
might even pull their contracts).
Here, Garduñio’s statements to the effect that, if the employees unionized the Company
would be forced to lay off drivers, represented threats not made on the basis of objective fact.
As was the case in Patsy Bee, Garduñio had no indication that the Union would necessarily
drive up labor costs or that the CPS would not contract with the Company. Accordingly, his
predictions, made on the basis of subjective beliefs, cannot be construed as anything other than
threats that employees would be discharged if they unionized. Such threats constituted an
8(a)(1) violation.
6. Prohibiting employees from speaking about the accident
reimbursement policy
The General Counsel contends that the Company unlawfully prevented employees from
discussing terms and conditions of employment with one another when Garduñio told Carol
Garcia not to discuss their agreement concerning her liability for her accident with anyone else.
The Company did not address this alleged violation in its brief.
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An employer may not restrict its employees’ right to discuss self-organizing with other
employees unless the employer can demonstrate that a restriction is necessary to maintain
production or discipline. NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956). Similarly,
absent such a business justification, an employer may not restrict employees in their
discussions concerning other concerted protected activity. See Lafayette Park Hotel, 326 NLRB
824, 825–826 (1998) (rule was not unlawful where there was a legitimate business justification
for the rule and it did not prohibit Sec. 7 activity). The Board must, therefore, balance the
proposed business reasons against employees’ Section 7 rights. See Westside Community
Mental Health Center, 327 NLRB 661, 666 (1999) (employer’s business reasons did not
outweigh employees’ Sec. 7 rights where the employer offered no evidence that its proffered
reasons were of valid concern).
The reason offered by the Company was, essentially, that it did not want other
employees to find out about the concessions it was making because it might make them
jealous. As Counsel for the General Counsel notes in her brief, a similar business justification
was rejected by the Third Circuit in enforcing the Board’s decision finding a rule prohibiting
employee discussion of wages. Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d Cir. 1976).
Moreover, the Company offered no evidence that this was even a valid concern. If anything,
employees concerned about the accident reimbursement policy would have, in all likelihood,
have been interested to learn such information for their own benefit. The accident
reimbursement policy was clearly a term or condition of employment. Under the circumstances,
the Company’s attempt to restrain Garcia in exercising her Section 7 rights lacks legal
justification and, thus, constitutes an 8(a)(1) violation.
7. Threat to close facility
The General Counsel contends that the Company violated Section 8(a)(1) through
Gabino’s statement to Frank Hernandez threatening to close the facility and move the Company
to a different location in the event the employees unionized. The Company denied this
allegation.
Unsupported employer predictions that a plant shutdown will follow a union victory are
unlawfully coercive. Federated Logistics & Operations., 340 NLRB 255, 256 (2003). As the
Company correctly pointed out in its brief, a prediction of plant closure may be lawful if the
employer can show that it is the probable consequence of unionization for reasons beyond the
employer’s control. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). Here, however, no
evidence was presented to show that Gabino’s statement constituted a prediction based on
probable consequences beyond the Company’s control. Rather, this statement was an
unsupported prediction aimed in intimidating Hernandez and other employees in the exercise of
their Section 7 rights, and thus constitutes an 8(a)(1) violation.
8. Statements of futility
The General Counsel asserts that the Company violated Section 8(a)(1) through
Garduñio’s statement to Carol Garcia that the Company would never agree to allow a labor
organization to represent its employees. The Company denied this allegation but did not
address it in its brief.
A statement to the effect that the Company will never agree to union representation
restrains employees and violates their Section 7 rights because it conveys a message that it
would be futile for them to join or support a union. Rood Industries Inc., 278 NLRB 160, 164
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(1986); see Maxi City Deli, 282 NLRB 742, 745 (1987) (finding employer’s statement that there
would never be a union in his restaurant to be unlawful); Loby’s Cafeteria, 187 NLRB 420, 420
(1970) (finding employer’s statement that he was not going to have a union to be unlawful
because it indicated that support for a union is futile). Here, the credible testimony established
that statements by Garduñio to Carol Garcia and by Gabino to Hernandez conveyed the
Company’s position that it would never agree to let the Union represent its employees. Under
the circumstances, their statements of futility violated Section 8(a)(1) by restraining Garcia and
Hernandez in the exercise of their Section 7 rights.
B. Section 8(a)(3)
The amended complaint also alleges that the Company violated Section 8(a)(3) by
discharging Garcia and Salgado because they engaged in protected concerted activity. Garcia
was allegedly discharged because she was engaged in union organizing and complained about
the Company forcing her to reimburse it for the costs of property damage resulting from a
vehicular accident during her employment; Salgado was allegedly discharged for also engaging
in union organizing and raising the issue of compensation for performing charter services. The
Company denies the material allegations and contends that Garcia was discharged for
insubordination after she threatened Henry Garduñio, while Salgado was discharged for theft of
company property.
Charges alleging Section 8(a)(3) violations are analyzed under the Wright Line
framework, which requires the General Counsel to make a prima facie showing sufficient proof
to support the inference that protected conduct was a motivating factor in the employer’s
decision. 251 NLRB 1083, 1089 (1980). To meet this burden, the General Counsel must
establish that the employee engaged in protected activity, the employer had knowledge of the
protected activity, and that the employer took adverse action against the employee as a result of
this protected activity. American Gardens Management Co., 338 NLRB 644, 645 (2002). Once
the General Counsel has proven these elements, the burden shifts to the employer to
demonstrate that he would have taken the same action even in the absence of protected
conduct. Manno Electric, 321 NLRB 278, 281 (1996). If the evidence establishes that the
reasons given for the discharge are pretextual, either in that they are false or not relied on, the
employer has failed to show that it would have taken the same action absent the protected
conduct, and there is no need to perform the second part of the Wright Line analysis. Golden
State Foods Corp., 340 NLRB 382, 385 (2003).
1. Carol Garcia
Carol Garcia engaged in protected concerted activity. She was involved in the union
organizing campaign and engaged in other concerted activity by voicing her concerns amongst
fellow employees about the Company’s accident reimbursement policy. Moreover, Garduñio
was aware of that activity. First, Garcia told him in September that employees were not happy
about certain workplace issues. Second, she was among the employees leaving the union
meeting on December 9 when Sara Martinez saw them and reported that to Garduñio.
The General Counsel also met her burden in establishing that Garduñio terminated
Carol Garcia because she engaged in protected activity. While there is no direct proof of
discriminatory motivation, such motivation can be inferred from circumstantial evidence based
on the record as a whole. Embassy Vacation Resorts, 340 NLRB 846, 848 (2003). Factors
supporting an inference of unlawful motivation include the timing of the termination and
departures from past practices. Id. Here, the timing is sufficiently suspicious to support the
General Counsel’s contention. Garcia allegedly threatened Garduñio in late September. Yet, it
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was not until nearly 3 months later that Garduñio actually fired her. Moreover, Garduñio fired
Garcia the day after Martinez saw Garcia leaving a restaurant with union officials. His proffered
explanation for waiting to fire Garcia—that he did so after consultation in a CAPS meeting—is
contradicted by previous instances in which he immediately discharged an employee for
threatening him. Garduñio’s failure to discharge Garcia immediately after the threat seriously
diminished his credibility. See Soft Water Laundry, Inc., 143 NLRB 1283, 1294 (1963) (finding
employer’s claim to not be credible because he failed to discharge employee immediately after
alleged threat). Coupled with the antiunion animus expressed by Garduñio, it is clear that Carol
Garcia was fired because of her protected conduct.
Having established a prima facie case, the burden shifted to the Company to
demonstrate that it would have discharged Garcia even in the absence of her protected
conduct. It did not. Garduñio’s decision to terminate Garcia was not related to a legitimate
concern for his safety or his past practice. His reliance on an incident 3 months earlier as a
basis for Garcia’s termination was clearly pretextual. As noted above, Garduñio testified that he
was influenced by external forces over the course of 3 months before deciding to terminate
Garcia. Observing his testimonial demeanor and involvement at counsel’s table throughout the
trial, as well as his past record of dealing or not dealing with similar incidents, he did not strike
me as one taken to deep deliberation regarding personnel decisions. All of these factors lead
me to conclude that Garcia was discharged because she engaged in protected concerted
activity in violation of Section 8(a)(3) and (1).
2. Pedro Salgado
The General Counsel contends that Pedro Salgado was discharged for his protected
concerted activity concerning his union organizing efforts as well as his questioning of cash
payments for charter service work. The Company contends that Salgado was not fired for his
protected activity, but rather, because he stole money from the Company.
Applying a Wright Line analysis, the General Counsel has clearly demonstrated that
Salgado engaged in protected activity, through both his unionizing efforts, as well as his clear
questioning of company policy regarding charter compensation at a drivers’ meeting. It is also
clear that the Company knew of his protected activity. Gabino’s conversation with Salgado
concerning the effects of unionizing revealed company knowledge of Salgado’s union-related
activities.
The General Counsel has also met its burden of proving that Salgado’s protected activity
was a motivating factor in the Company’s decision. As explained above, the Company’s
antiunion animus was evident from its efforts to restrain its employees in their union organizing
campaign. See Dandridge Textile Inc., 279 NLRB 89, 98 (1986) (taking into account the
Company’s 8(a)(1) violations in establishing animus in an 8(a)(3) charge). Moreover, Salgado
and only one other driver redefined the most severe form of discipline—termination—while the
other 10 drivers who also received cash compensation for their charter services were simply
required to reimburse the Company and placed on probation or received no discipline at all. I
also found that Garduñio failed to fully investigate the matter as it specifically applied to
Salgado’s involvement in receiving cash for charter services. He approached Salgado after the
drivers meeting and asked him about the cash payments. Salgado told him to speak to the
charter director. Garduñio provided no explanation as to what his alleged investigation before or
after that encounter revealed with respect to Salgado’s question as to why drivers were being
paid cash for providing charter services. See Socied Espanola de Auxillio Mutuo Y Beneficencia
de P. R., 342 NLRB 458, 459 (2004) (emphasizing that one factor to consider in an unlawful
discharge claim is whether the employer conducted a full investigation into the conduct that
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allegedly brought about the discharge).This was a classic instance of disparate treatment
attributable to Salgado’s protected concerted activity. See Embassy Vacation, 340 NLRB, supra
at 348 (holding that one factor to consider is the disparate treatment of employees with similar
offenses). All of these factors demonstrate that Salgado’s protected activity was a motivating
factor in the Company’s decision.
Having established a prima facie case, the Company failed to meet its burden of
demonstrating that it would have discharged Garcia even in the absence of her protected
conduct. It did not. The General Counsel proved that Garduñio’s reason offered for Salgado’s
termination—that he stole money from the Company—was pretextual. It is clear that Del Toro
stole money from the Company. However, assuming arguendo that a driver receiving cash
compensation from the Company’s charter services director violated some unstated company
policy or procedure, Garduñio failed to explain how Salgado, or any other drivers for that matter,
stole money. Indeed, Salgado raised the issue of cash compensation for charter services at the
company meeting. The uncontroverted facts also revealed that Salgado was underpaid for his
share of the charter at issue. Moreover, given the vastly disparate treatment afforded Salgado
compared to the other drivers involved, it is quite evident that he would not have been
discharged in the absence of his protected concerted conduct. Under the circumstances,
Salgado’s discharge violated Section 8(a)(3) and (1). Wells, Inc., 68 NLRB 545, 547 (1946).
Conclusions of Law
1. The Company is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. By discharging Carol Garcia and Pedro Salgado because they engaged in protected
concerted activity by supporting the Union and complaining about terms and conditions of
employment, the Company has been discriminating against employees in violation of Section
8(a)(3) and (1) of the Act.
3. By preventing employees from discussing terms and conditions of employment with
one another, creating an impression that employees’ union organizing activities were under
surveillance, promising improved benefits to, and soliciting grievances from, employees during a
union organizing campaign, interrogating an employee by asking him whether he supported the
Union, threatening to discharge employees if they unionized, threatening to close the facility and
move the Company to a different location in the event the employees unionized, and warning
employees that it would be futile to form a union because the Company would never agree to
allow a labor organization to represent them, the Company violated Section 8(a)(1).
4. The above-described unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Remedy
Having found that the Company has engaged in certain unfair labor practices, we shall
order it to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Company violated Section 8(a)(3) and (1) of the Act by
discriminatorily discharging Carol Garcia and Pedro Salgado, it must offer them reinstatement
and make them whole for any loss of earnings and other benefits. Backpay shall be computed
from date of discharge to date of proper offer of reinstatement in accordance with F. W.
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Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB No. 8 (2010). Further, the Company shall be required to submit the
appropriate documentation to the Social Security Administration so that when backpay is paid, it
will be allocated to the appropriate calendar quarters. The Company shall also be required to
remove from its files any and all references to the unlawful discharges of Carol Garcia and
Pedro Salgado. The Company shall notify them in writing that this has been done and that the
unlawful references will not be used against them in any way.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended40
ORDER
The Company, Latino Express, Inc., Chicago, Illinois, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employees because they engage in
protected concerted activities, including supporting the Teamsters, Local Union No. 777,
affiliated with the International Brotherhood Teamsters, AFL–CIO or any other labor
organization.
(b) Coercively questioning employees about their union support or activities.
(c) Prohibiting employees from discussing issues relating to their terms and conditions of
employment.
(d) Creating the impression that employees union organizing activities are under
surveillance.
(e) Promising improved benefits to employees or soliciting grievances from them during
a union organizing campaign.
(f) Interrogating employees by asking them whether they support the Union or another
labor organization.
(g) Threatening to discharge employees or otherwise close the facility if they form a
union.
(h) Warning employees that it would be futile to form a union because the Company
would never agree to allow a labor organization to represent them.
(i) Preventing employees from discussing terms and conditions of employment with each
other.

40 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 purposes.
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(j) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Carol Garcia and Pedro Salgado
reinstatement and make them whole for any loss of earnings and other benefits.
(b) Within 14 days from the date of this Order, the Company shall also be required to
remove from its files any references to the unlawful discharges of Carol Garcia and Pedro
Salgado. The Company will, within 3 days thereafter, notify each of them in writing that this has
been done and that the discharges will not be used against them in any way.
(c) Within 14 days after service by the Region, post at its Chicago, Illinois facility copies
of the attached notice marked “Appendix”41 in both English and Spanish. Copies of the notice,
on forms provided by the Regional Director for Region 13, after being signed by the Company’s
authorized representative, shall be posted by the Company 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 Company to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Company has gone out of business or closed the facility involved in
these proceedings, the Company shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Company at any time
since September 20, 2010.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Company has taken to comply.
Dated, Washington, D.C. July 12, 2011
__________________________________
Michael A. Rosas
Administrative Law Judge

41 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–40–11
Chicago, IL
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected
concerted activities relating to your terms and conditions of employment or supporting
Teamsters, Local Union No. 777, affiliated with the International Brotherhood Teamsters, AFL–
CIO, or any other union.
WE WILL NOT coercively question you about your union support or activities.
WE WILL NOT prohibit you from discussing with coworkers issues relating to your terms and
conditions of employment.
WE WILL NOT create the impression that employees’ union organizing activities are under
surveillance.
WE WILL NOT promise improved benefits to employees or solicit grievances from them during
a union organizing campaign.
WE WILL NOT interrogate employees by asking them whether they support the Union or
another labor organization.
WE WILL NOT threaten to discharge employees or close the facility if they form a union.
WE WILL NOT warn employees that it would be futile to form a union because the Company
would never agree to allow a labor organization to represent them.
WE WILL NOT prevent employees from discussing their terms and conditions of employment
with each other.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Carol Garcia and Pedro Salgado
reinstatement and make them whole for any loss of earnings and other benefits as a result of
the unlawful discrimination against them.
JD–40–11
Chicago, IL
WE WILL within 14 days from the date of this Order, remove from our files any references to the
unlawful discharges of Carol Garcia, and Pedro Salgado and, within 3 days thereafter, notify
each of them in writing that this has been done and that the discharges will not be used against
them in any way.
LATINO EXPRESS, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
The Rookery Building
209 South LaSalle Street
Chicago, Illinois 60604
Hours: 8:30 a.m. to 5 p.m.
(312) 353-7570
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (312) 353-7170.