Pacific Coast M.S. Industries Co., Ltd

National Labor Relations Board - Administrative Judge Opinions

May 25, 2007

32-CA-022748 (N.L.R.B. May. 25, 2007)

JD(SF)–15–07
Tracy, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA
PACIFIC COAST M.S. INDUSTRIES CO., LTD.
and Case 32–CA–22748-1
32–CA–22861-1
GENERAL TEAMSTERS, LOCAL 439, 32–RC–5443
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Jennifer Benesis, Oakland, CA,
for the General Counsel.
Thomas J. Dowdalls and Harry M. DeCourcy,
(Littler Mendelson) of Walnut Creek, CA, and
Mr. Richard Hendrick of Pacific Coast M.S. Industries,
for the Respondent/Employer.
David A. Rosenfeld and Caren P. Sencer,
(Weinberg, Roger & Rosenfeld) of Alameda, CA,
for the Charging Party/Petitioner.
DECISION
Statement of the Case
JAY R. POLLACK, Administrative Law Judge: I heard this consolidated case in trial at
Oakland, California, on January 29, 30, 31 and February 1 and 2, 2007. On July 19 and
September 26, 20061, General Teamsters, Local 439, International Brotherhood of Teamsters
(herein called the Union or Petitioner) filed the unfair labor practice charges alleging that Pacific
Coast M.S. Industries Co., Ltd., 2 (Respondent or the Employer) committed certain violations of
the National Labor Relations Act (the Act). On November 9, the Regional Director for Region 32
of the National Labor Relations Board issued a consolidated complaint alleging Respondent had
violated Section 8(a)(1) and (3) of the Act.
In addition, on June 20 the Union filed a representation petition in Case 32-RC-5443
seeking to represent a unit of Respondent’s production and maintenance employees at its plant
in Tracy, California. An election was conducted on July 28, pursuant to a Stipulated Election
Agreement approved by the Regional Director. The election remains unresolved due to
challenged ballots and objections. On December 1, the Director issued a Report on Challenged

1 All dates are 2006 unless otherwise noted.
2 On the first day of hearing, Respondent counsel requested their Answer be amended to reflect the
Respondent's correct name is Pacific Coast MS, Industries Company, Limited, that request was granted.
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Ballots and Objections, ordering a hearing. By separate order, he consolidated those matters
with the unfair labor practice proceeding.
All parties have been afforded full opportunity to appear, to introduce relevant evidence,
to examine and cross-examine witnesses and to file briefs. On the entire record, including
observation of the demeanor of the witnesses, and having considered the post-hearing briefs of
the parties, I make the following3
Findings of Fact
I. Jurisdiction
At all times material, Respondent has been a California corporation with its principal
office and place of business located in Tracy, California. It is a manufacturer of automotive
parts. In the course and conduct of its business, during its fiscal year ending June 30, 2006, it
purchased and received goods at its Tracy facility valued in excess of $50,000 directly from
sources outside California. Accordingly, Respondent admits, and I find it to be an employer
engaged in commerce within the meaning of Sections 2(2), (6) and (7) of the Act
In addition, Respondent admits the Union is a labor organization within the meaning of
Section 2(5) of the Act and I so find.
Many of the issues raised in this case hinge upon whether Respondent’s so-called ‘team
leaders’ are supervisors as defined in Section 2(11) of the Act. A determination of that ultimate
fact will resolve certain threats alleged to have violated Section 8(a)(1), whether alleged
discriminatee Felicia Montes is an employee protected by Section 7, and whether team leaders
were eligible voters. Other issues include objections to the manner in which the election was
conducted – were the laboratory conditions for a fair election somehow compromised, either by
the voters, the Board Agent conducting the election or even by some unknown third party?
II. Respondent’s Organization
A. Overview
As noted, Respondent is a California corporation. It is, however, the subsidiary of at
least one and apparently two, Japanese corporations, Maruyasu Industries and Sekiso
Corporation. The Tracy operation manufactures parts (mostly transmission, brake and fuel lines
and seal tubing) for Toyota automobiles and trucks. Much of its product is delivered to the New
United Motor Manufacturing, Inc. (NUMMI) plant in Fremont, California, located about 50 miles
west. NUMMI is a joint venture of Toyota and General Motors. Respondent has recently begun
manufacturing parts for another Toyota line, Hino Trucks. It also sends its products to Toyota
Canada and Toyota Mexico.

3 The credibility resolutions herein have been derived from a review of the entire testimonial
record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses,
and the teachings of NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). As to
those witnesses testifying in contradiction to the findings herein, their testimony has been
discredited, either as having been in conflict with credited documentary or testimonial evidence, or
because it was in and of itself incredible and unworthy of belief.
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The Tracy operation consists of three plants, the serially named Plants 1, 2 and 3.
Plant 1 houses the truck department, the passenger department (including end forming), the
Hino department, the quality assurance department, the shipping and receiving department and
the tool room. The Company’s main office is also located in Plant 1. The vice-president and the
human resources staff are officed there. The blow mill and asphalt departments occupy Plant 2,
while Plant 3 is for the stamping and heat shrink processes.
During the period in question, mid 2006, the executive in charge of the Tracy facility was
corporate vice-president Richard Hendrick. Hendrick was the individual who reported to the
parent corporations in Japan. Respondent’s corporate president was Singi Yamada, who also
served as president of Maruyasu Industries. He is located in Okasaki, Japan. Reporting to
Hendrick were Ryan Scharffenberg, the assistant general manager, and Dawn Tipton, the HR
manager, as well as the managers for accounting, quality assurance and the tool room.
Beneath the department managers on the organizational layout are the group leaders
and beneath them are the team leaders. That structure holds true for most of the departments,
although there are some which did not have a group leader. Both classifications comprise
hourly, not salaried, employees. As far as this case is concerned, the team leaders’ status
plays in a number of directions. Each of the challenged ballots was cast by a team leader.
Respondent seeks to deny them the right to vote, asserting they are statutory supervisors. One,
Lue Vang, served as Respondent’s observer during the election, despite the fact that
supervisors are not supposed to perform that function – see both the Stipulated Election
Agreement and Board law generally. Others are the alleged victims of otherwise unlawful
threats under §8(a)(1) and one, Felicia Montes, is the alleged discriminatee whom Respondent
essentially agrees was fired because of her perceived union activity. There is some conflicting
evidence regarding the team leaders’ powers and the significance of their authority. Much of
this is the traditional divide between factory foremen and lead persons or straw bosses.
B. Team Leaders
First, it is entirely clear that none of the team leaders possesses any of the criteria of
Section 2(11) of the Act defining a statutory supervisor, except possibly the last, to ‘effectively
recommend’ certain action. Section 2(11) states a supervisor must: “[have the] authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature, but requires the use of
independent judgment.” None, by himself or herself, had the authority to hire, transfer,
suspend, lay off, recall, promote, discharge, assign,4 reward, adjust grievances or even
discipline team members. Indeed, that void alone may be construed as not supporting
Respondent’s contention. Elmhurst Extended Care Facilities, 329 NLRB 535, 536, n. 8 (1999).
There is some conflicting evidence regarding the extent of their involvement in daily work
assignments, attendance-related discipline and the effectiveness of recommendations in the
nature of hiring or disciplining or their participation in that process.

4 ‘Assign’ as used in the statute does not refer to daily work assignments, but to job
placement. Daily assignments are more closely akin to the ‘responsibly direct’ [employees]
portion of the statute. Even so, where the assignments are per a routine, as seen here, it is not
evidence of Section 2(11) supervisory status. Sears, Roebuck & Co., 292 NLRB 753, 754
(1989).
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Respondent utilizes two forms which play a role in the disciplinary process. One,
despite its name, ‘warning,’ is the mechanical application of its attendance policy under which
tardies and absences accumulate points leading to termination. This is nearly entirely
administered by the human resources department. Neither the group leaders nor the team
leaders have any discretionary role to play, although they may be called upon to deliver the
warning notice to the offending employee. For the most part, the group leader, not the team
leader, handles that chore. A team leader might be asked to perform that task in the group
leader’s absence or if there is no group leader for that component of the factory. Nevertheless,
neither the team leaders nor the group leaders use any independent discretion in that process.
There are also time-punching questions which arise on a frequent basis. Respondent
utilizes a computer check-in system which is administered by the HR department. If an
employee fails to scan his or her card, the failure will trigger an inquiry the following day. The
team leader may be asked to find out or confirm whether the employee’s time record needs to
be corrected. This duty is nothing more than assisting with the clerical record and does not
involve the use of independent judgment. It is not helpful in determining the supervisory status
of the employee. The same is true for punching errors caught on the day of the mistake.
Although out of logical order because it is a secondary, not statutory, indicium of
supervisory status, a similar observation can be made about the training or mentoring a team
leader may provide to team members or prospective team members. For example, Respondent
usually hires employees from a temp agency (Adecco, according to R.Exh. 70) which has sent
the prospective employee to Respondent for work. The training required of a new employee or
an in-house transfer is subject to the same analysis as timekeeping. Showing a fellow
employee how to do a particular job or run a specific machine is not evidence of supervisory
power. Indeed, it is common, according to one of the team members, for team members to
serve as trainers. See the testimony of Lorenzo Castro.5 Likewise, the temps come with their
own timesheet from the temp agency and someone needs to verify that they worked the hours
claimed. That is commonly done by a responsible employee approving the temp agency’s time
card. Again, this is nothing more than the clerical function of timekeeping performed by that
trusted employee and is not evidence of supervisory status.
The second form utilized in the disciplinary system is called an “Employee Observation
Sheet.” This is a more open-ended form, for it requires factual explication. It is used in both the
discipline and reward tracks. There is testimony that anyone may fill out such a sheet
memorializing whatever they observed about another person, good or bad. One observation
sheet received in evidence was written by production manager Brian Juarez but initiated by
team members who had complained about group leader Jose Quinones. They had told Juarez
that Quinones had failed to provide team members a lunch break after 10 hours’ work. Juarez
recorded on the sheet that he told Quinones that state law required such breaks and gave
additional advice regarding the need and frequency of breaks. Another concerned Quinones’s
negative approach to team leader (and former manager) Anna Pacheco and admonished him to
work positively with her.
More frequently, however, the observation sheets are filled out by someone in the chain
of command targeting a team member for some shortcoming. Usually they do not end up as
traditional discipline. As with the two directed to Quinones, they are more often used to induce

5 Castro testified at two points during the hearing. In his second appearance, found in the
fifth volume, the transcript misidentifies him as Lorenzo Cortero. The transcript is hereby
corrected to reflect his correct name.
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improvement. As such, they are generally more avuncular than emphatic. This is more in the
nature of counseling than discipline. Counseling is, of course, not evidence of Section 2(11)
authority. Ken-Crest Services, 335 NLRB 777 (2001).
There is only one observation sheet in the record which was disciplinary and served as
an official warning. Even so, it was offered only in support of the contention that Felicia Montes,
the alleged discriminatee, was a statutory supervisor. It was directed to team member Hector
Ocequeda for neglecting to wear his seat belt while driving a forklift. Its application to Montes is
discussed later in the decision.
Given the paucity of evidence supporting Respondent’s contention that the power to fill
out observation sheets is evidence of supervisory authority, I am unable to accept Respondent’s
argument on the issue. It is true that the sheets may be used for disciplinary purposes, but It
seems that any employee may trigger one, whether they physically write it or not. Witness the
employees’ complaint about breaks that Juarez picked up and followed. Furthermore, there is
no observation sheet in the record signed by a team leader. Indeed, Montes testified that as a
team leader if she wrote an observation sheet on a team member she was not empowered to
tell the employee he would be subject to further discipline.
There is some testimony that team leaders are involved in the evaluation of temps as
they are being considered for hire as permanent employees. For example, Montes testified that
while serving as a team leader she has evaluated the temps on a 60 or 90-day basis. At the
same time, however, she said she did not make any recommendation concerning their hire. As
for the relevant time frame, she testified she did no evaluations of temps between May 2005
and May 2006. During that time frame the duty was performed by her group leader Aldo
Montes.
Production manager Brian Juarez also gave some testimony about the manner in which
temps became full-time employees. He asserted that team leaders regularly made
recommendations concerning hiring the temps as they completed their 60 or 90 day reviews.
He pointed to R.Exh. 72, a 90-day review form for a temp named Romeo Panopio dated
June 9, 2006. The form asks the trainer to comment on four areas for evaluation: safety,
quality of work, quantity of work, and teamwork. There are also spaces for both general
comments and a final comment. At the form’s end, the evaluator is asked to circle ‘yes’ or ‘no’
as a recommendation for hire. In this case, team leader Anna Pacheco followed all those
instructions and gave a neutrally-worded evaluation, finding Panopio’s performance to be
acceptable in three of the categories and needing improvement in the fourth. She concluded
with the remark that the position the applicant had been assigned to since June (a matter of only
nine days) is better suited to him. She circled the ‘yes’ choice on the hire recommendation.
Juarez says Panopio was hired based on this evaluation. Respondent cites that
recommendation as evidence of the evaluator’s supervisory authority.
It should be noted, however, that Pacheco’s assessment differs in quality from the other
team leaders. She is a former production manager for Plant 2 who had been demoted.
Certainly her experience (14 years with the Company) and probably her managerial skills in
evaluating prospective employees exceed those of other team leaders who do not have her
background. No doubt Anna Pacheco’s assessment carries greater weight than that of a lesser-
experienced team leader who is just beginning to rise in the Company.
Pacheco had been called by the General Counsel earlier in the hearing and was not
asked about either this recommendation or the weight such evaluations normally have.
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While Respondent sees an inconsistency here between Pacheco and Felicia Montes’s
testimony, I do not. All Felicia Montes is really saying is that she was the person closest to the
prospective hire and was in a position to provide factual information to the hiring authorities who
actually made the decision. Indeed, that is a normal duty of a lead person and is exactly what
Pacheco did in Panopio’s case. Lead employees in most circumstances are trusted employees.
Their observations are valued. Even so, their observations do not amount to ‘effectively
recommending’ the hire of anyone. They simply provide information which is taken into account
by the hiring authority. Indeed, under Respondent’s hierarchical system, it is doubtful that group
leaders have much discretionary input on such decisions, either. Respondent, by utilizing a
temp agency to find qualified applicants has delegated the initial contact to an independent
Company. That agency is the one which does the background check and the suitability
analysis. That leaves only simple observation to the team leaders and group leaders.
Productivity can be measured objectively from that point. The recommendation choices at the
bottom of the evaluation form are little more than the tail on the dog. While they are the
opinions of the evaluator, they do not constitute the independent judgment or the ‘effective’
recommendation the statute contemplates for Section 2(11) supervisor status. I conclude,
therefore, that the team leaders have no role involving independent judgment in the hire of
employees nor are their recommendations ‘effective’ as used in the statute. Their opinions are
based on factual observation, not on whether it is in the employer’s interest to actually hire (or
not hire) the employee. Williamette Industries, 336 NLRB 743 (2001).6
Another area alleged to be proof of supervisory status is the testimony that team leaders
have the authority to grant or deny time off requests. In this regard, there is a variety of reasons
for an employee to seek time off. The obvious one is the paid vacation. In addition, there is so-
called ‘convenience time,’ which is unpaid and, of course, emergency time off, also unpaid.
Respondent utilizes a request form to be filled out and signed and dated by the
employee. It contains two approval signature lines to be signed and dated by a “supervisor,”
one of whom is to check the ‘approved’ or ‘denied’ blanks. And, it is certainly accurate to
observe that team leaders have routinely signed the forms, together with the group leader. Still,
after the slips are signed, the form is submitted to the HR department for review and final
approval. The record shows that the group or team leaders first check to see what impact the
employee’s absence will have on the staffing level. That result is more important with regard to
convenience time, because those requests occur on short notice and cannot be planned for as
easily as vacation time. Both the group and team leader are familiar with the number of staff
members required for particular stations and can easily see whether the employee’s absence
can be covered. Curiously, the only slips which Respondent offered in evidence show that the

6 See also the so-called ‘reportorial’ cases discussing the fact that an employee is not
rendered a supervisor by the fact that he makes reports about others. E.g., Vencor Hospital-
Los Angeles, 328 NLRB 1136 (1999) (ability to issue oral warnings in itself does not
demonstrate supervisory authority); VIP Health Services v. NLRB, 164 F.3d 644, 648 (D.C. Cir.
1999) (mere reporting is insufficient to establish that nurses effectively recommend discharge or
discipline); Misericordia Hospital Medical Center v. NLRB, 623 F.2d 808, 817 fn. 20 (2d Cir.
1980) (authority to do no more than orally counsel and reprimand employees is not
supervisory). Accord: Waverly-Cedar Falls Health Care, 297 NLRB 390, 392 (1989), enfd. 933
F.2d 626 (8th Cir. 1991); and Ohio Masonic Home, 295 NLRB 390, 393–394 (1989). See also
Lynwood Health Care Center, Minnesota, v. NLRB, 148 F.3d 1042, 1046 (8th Cir. 1998) (mere
authority to effectively recommend warnings that “have no tangible effect on [an employee’s] job
status . . . is not sufficient for supervisory status”).
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request was always approved whether the employee sought convenience time or vacation time.
No denials have been shown. Discretionary judgment here has not been shown.
Sick time and emergency time are handled differently, directly through the HR
department which reviews the requests afterwards. Yet even the request forms covering
convenience and vacation times are reviewed by HR. For example, if the employee has
requested vacation time when his or her vacation account is insufficient to cover it, HR will deny
the request.
Whatever the power the team leaders have here, it is limited. It is limited by the fact that
the group leader and the department manager have review authority over it in the first instance.
In addition, the HR department has final authority over the entire process. It is clear that the
team leaders are merely the persons making a tentative decision with respect to such leave
requests. Employees’ paid vacations are nearly a matter of right. The right to other kinds of
absences is governed by a bureaucratic procedure in which the team leader plays only a limited
role, one which the record shows is often bypassed in favor of the group leader.
Considering the evidence on this issue as a whole, I find without exception that the job
classification of team leader does not meet the definition of supervisor as defined by Section
2(11) of the Act. The true first line supervisor is the group leader. I reach this conclusion
primarily upon the testimony of Montes, Pacheco, Bagalso and some of Vang’s testimony. I
found that Vang’s testimony that was favorable to Respondent was colored by his recent
promotion. For example, Vang’s testimony that since his promotion he reports daily to Juarez,
but never did so when he was a team leader, is compelling because Respondent’s current
argument seems to argue that there is hardly any difference between the team leaders and the
acknowledged group leaders’ supervisory authority. The same can be said for Vang’s testimony
that his former group leader Frank Cordero never turned down any leave requests, suggesting
strongly that even group leaders follow routines designed to get the decision before someone
with actual authority. Furthermore, I specifically discount the testimony of manager Brian
Juarez who was transparently promoting the team leaders to powers greater than they possess.
See, for example Juarez’s testimony concerning the people who reported to him as
production manager. It is entirely contrary to what Vang said.
Q [By Mr. Dowdalls] Still talking about this time period between April and July 2006,
were there PCI employees who reported directly to you?
A [Witness Juarez] Yes, there was.
Q And are you able to give me those individuals and their job titles?
A Yes, I can. Okay. I have a group leader, Frank Cordero, Lue Vang is the team
leader. And Keing Orn, team leader. Jesse Ocequeda, group leader. Jose
Quinones, group leader. Anna Pacheco team leader, and Vernon Kiawe, team
leader.
Q So, these are the seven employees at PCI who reported directly to you?
A Yes.
Vang had no reason to understand that the reporting line of authority would have any
bearing on supervisory status. He accurately testified that he did not begin reporting to Juarez
until he became a group leader. Juarez, who understands the issue, clearly colored the
situation to fit with Respondent’s current argument. Juarez’s testimony on supervisory authority
cannot be relied upon.
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I have also carefully gone through the secondary indicia of supervisory authority
supposedly granted each of these team leaders. I found it telling that none of their supposedly
discretionary powers really exist. Moreover, Respondent pointed to no structural differences,
such as wage differentials or managerial privileges. Indeed, there is no evidence that team
leaders have ever been told that they have supervisory authority. That absence of notification is
certainly evidence that they have no such authority. Volair Contractors, 341 NLRB 673,
675 (2004). It is true that on occasion some have been asked to travel for training or to work
with NUMMI, but this says nothing about their daily duties, which are entirely routine in nature.
Even where a team leader is the only person with any authority, such as Keing Orn during that
time frame (team leader on the night shift) and leading a group of 8-10 team members, there is
no reason to think his authority became greater simply because he was ‘in charge.’ The factory
operates in a repetitive manner. No discretionary decisions need to be made until a
consultation with the group leader could be had during their shift overlap. Even Juarez’s
testimony makes it clear that nothing non-routine was expected to occur at night: The team
leader (Orn) was “responsible to make sure production was completed each day. He was
responsible for overseeing quality and make sure shipments were done, as well as training and
other various items.” These duties were not inconsistent with being a non-supervisory lead
person.
Another night shift team leader, Vernon Kaiawe, who appears to have only one
subordinate, Veronica Arce, said this of his night-time duties:
Q [By Ms. BENESIS] What are your job duties as a team leader in the passenger
department?
A [Witness KAIAWE] Informing, and I basically tell Veronica or whoever works there at
night what to do, and I also once in a while fix machines.
As can be seen, Kaiawe’s duties, in addition to the production work he does, are
minimal. It hardly sounds in supervision. His assignment of work to the team member is
dependent on production needs. He also passes on to Arce the Quality Assurance
department’s daily assessment of her work from the night before. Her success as an employee
does not reflect on his success as a team leader. He gets no reward for her excellence; neither
does he get down graded because of any of her negative performance.
The absence of anyone with Section 2(11) supervisory authority from these shifts is
essentially meaningless to Respondent’s operation. Night shift team leaders have no more
authority than do day shift team leaders. All of them perform their duties under routines which
limit them from performing work involving independent judgment. Sears, Roebuck & Co., 304
NLRB 193 (1991).
Therefore, I have no hesitancy in finding that team leaders are employees entitled to the
protection of Section 7 of the Act.
III. Interference, Restraint and Coercion
A. The Wage Increase
On June 29, the Regional Director approved the election stipulation, setting the
representation election in Case 32-RC-5443 for July 28. Both Respondent’s counsel and the
Union’s counsel had signed the agreement the day before on June 28. On June 30, in a series
of meetings with the employees, vice-president Hendrick announced an across-the-board wage
increase of 26¢ per hour. At the same time he announced a new safety program and a contest
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for a cash bonus. Insofar as the wage increase was concerned, Hendrick followed a script
which had been prepared for him by a labor consultant. The script is set forth in R.Exh. 55. It is
not necessary to describe it in detail. The employees had not had a wage increase since
January 2003, although there had been grants of small year-end bonuses.
Hendrick told the employees that in December 2005, he had told them that raises would
come when the Company was profitable, and that toward the end of the Company fiscal year
(June 30), he would be able to determine profitability. If the Company was profitable, he would
seek a wage increase from headquarters in Japan. He then told them that the Company had,
indeed, become profitable and that he had persuaded the Japanese managers to grant the 26¢
increase.
At the hearing Hendrick testified that the plant had shown profits in January, February,
March, April and May. As a result, he had proposed the wage increase on June 5 with
president Yamada. At the same time he acknowledged that the fiscal year numbers would not
become finalized until a month or so after June 30, because the accounting staff needed several
weeks to gather and check the outstanding figures. Nevertheless, he explained, he had a good
idea how things were going due to the monthly “first look” meetings he held with the managerial
staff. Those took place on the second or third workday of each month. From those, he said he
was confident of a fiscal year’s profitability, so he made the June 5 recommendation. On
April 21, however, Hendrick had become aware of the union organizing and on May 3 had
suspended Felicia Montes for union organizing. The very next day a Sekiso corporate senior
vice-president, Yazawa, arrived in Tracy for a two-day visit. Hendrick told him about Montes’s
union activity and the action Respondent was taking concerning it.
Hendrick began preparing his recommendation sometime in mid-May, although one draft
bears a May 30 date. The proposal itself cites the employees’ morale as an issue. “Although
employee morale has been OK, PCI has learned that some employees have discussed the
possibility of union representation.” This language understates the situation, for he well knew
that the employees had proceeded past the ‘discussion’ point.
In any event, he recommended a two-phase wage increase. The first would be a 30¢
increase beginning July 1. The second phase would be 22¢, beginning January 1, 2007. He
estimated the first phase would cost $4800 per month. The second addition would result in a
monthly payroll increase in January 2007 to $8320 over the rate as it stood in June. Eventually,
the Company granted only the 26¢ raise noted above. That amounted to a monthly payroll
bump of $4457, $343 less per month than Hendrick proposed.
From this, it can readily be seen that Respondent had made no decision whatsoever
concerning either the raise itself or the amount of the raise at the time the petition was filed.
And, of course, it had not made that decision prior to the employees’ commencement of their
union activity. In fact, as it acknowledges, the decision to grant the increase was a direct
response to the union organizing. Beyond that, the timing occurs in tandem with the setting of
the day for the election.
With respect to the grant of benefits while a representation election is concerned, in
Lampi, L.L.C., 322 NLRB 502, (1996), the Board reiterated the rule of law to be applied in timing
cases. There, the Board, quoting itself, said:
It is well established that the mere grant of benefits during the critical period is
not, per se, grounds for setting aside an election. Rather, the critical inquiry is
whether the benefits were granted for the purpose of influencing the employees'
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vote in the election and were of a type reasonably calculated to have that effect.
NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). As a general rule, an
employer's legal duty in deciding whether to grant benefits while a representation
proceeding is pending is to decide that question precisely as it would if the union
were not on the scene. R. Dalkin, supra, quoting Red Express, 268 NLRB 1154,
1155 (1984). In determining whether a grant of benefits is objectionable, the
Board has drawn the inference that benefits granted during the critical period are
coercive, but it has allowed the employer to rebut the inference by coming
forward with an explanation, other than a pending election, for the timing of the
grant or announcement of such benefits. Uarco Inc., 216 NLRB 1, 2 (1974). See,
e.g., Singer Co., 199 NLRB 1195 (1972).
And, in Waste Management of Palm Beach, 329 NLRB 198 (1999) the Board cited the
controlling law relating to the timing of the grant. It said:
The Board has held that benefits granted during an election campaign are not
unlawful if the employer shows that its action was governed by factors other than
the pending election. The employer can meet its burden by showing the benefits
granted were part of an already established company policy and the employer
did not deviate from that policy upon the advent of the union. American Sunroof
Corp., 248 NLRB 748, 748–749 (1980), modified on other grounds 667 F.2d 20
(6th Cir. 1981). But, an employer cannot time the announcement of increased
benefits to employees in order to dissuade their union support. Reno Hilton, 319
NLRB 1154, 1154–1155 (1995); Capitol EMI Music, 311 NLRB 997, 1012 (1993),
enfd. 23 F.3d 399 (4th Cir. 1994).
* * *
On this record, we conclude, in agreement with the judge, that the Respondent
accelerated the announcement in order to discourage union support. Therefore,
we find that the announcement violated Section 8(a)(1) of the Act. Brooks Bros.,
261 NLRB 876, 883 (1982), enfd. 714 F.2d 111 (2d Cir.); H-P Stores, Inc., 197
NLRB 361 (1972).
The rule is the same whether the Board is scrutinizing the grant as an election objection
(Lampi, L.L.C., supra), or an unfair labor practice (Waste Management of Palm Beach, supra;
also Holly Farms Corp., 311 NLRB 273, 274 (1993), enfd. 48 F.3d 1360 (4th Cir. 1994) 7 and
Speco Corp., 298 NLRB 439, fn.2 (1990). Therefore, for Respondent to defend the complaint
allegation that the grant here interfered with the employees’ Section 7 rights, it must rebut the
inference that it was granted to influence the election. I find that it has failed to do so.
Hendrick’s memo to headquarters recommending a raise specifically references the union
organizing. Furthermore, Respondent’s own evidence shows that no raise had been
contemplated (aside from an inchoate hope uttered during the 2005 Christmas season) before
Hendrick’s memo of May 30. Respondent waited until the signing of the Stipulated Election
Agreement to announce it. And finally, its evidence concerning profitability and a raise
connected to profitability does not meet the test. That was not a decision. It was merely
Hendrick’s supposedly fulfilling a promise to seek a raise in the event a year’s profit was
reached. Therefore, Respondent has failed to demonstrate that it had crystallized its wage
increase decision before it learned of the union activity or that the grant would have occurred if

7 Case heard by the Supreme Court on other issues. 517 U.S. 392 (1996).
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the union had not been on the scene. I find, therefore, that the 26¢ wage increase granted
during the run-up to the election violated §8(a)(1) of the Act as the complaint alleges.
B. Threats; Attempted Repudiation
About a week after the representation petition was filed on June 20, production manager
Brian Juarez went around the plant and handed a memo to each employee advising them of the
filing. Lorenzo Castro, Glen Garcia and Gilbert Pimental were among the employees to whom
he delivered a copy. As they read it, group leader Jose Quinones joined them to see what was
happening. Juarez gave him a copy and then left, apparently to deliver copies elsewhere.
Quinones read it and then turned to the three and spoke. Castro:
Q (By Ms. BENESIS) Did Mr. Quinones say anything about the handout?
A (Witness CASTRO) Not as soon as we received it. We all pretty much
stopped what we were doing to read the handout.
Q And after he read the handout, did he say anything?
A Yeah, we pretty much stopped what we were doing, stood around, read the
handout, and I remember myself, Glen and Gilbert were discussing what we
thought about it. And I remember the group leader saying it will never
happen. That the Japanese wouldn't allow it.
Q Did he say what would never happen?
A The -- us becoming union.
Q Did he say anything else about what would happen if the union came in?
A Yeah, he said that, you know, before they would allow a union to come in,
that they would either shut down the plant and move it to one of our -- to
another location, either Mexico or Texas.
Q Did you ask him any questions?
A I asked him what he meant by that, and he goes like, well, they had said from
the get-go that they would -- they would never allow us to have a union there.
And that's all I remember him saying.
Some time later, about a month before the election, Quinones spoke to Veronica Arce, a
graveyard shift worker in the passenger department. The end of her shift overlapped slightly
with the beginning of his. She remembers the conversation because it was the first she was
aware that the Union was seeking representation. She also recalls the second because of its
nature. Arce’s English requires some editing for clarity; my edits are shown. She testified:
Q BY MS. BENESIS: When did you hear about the union?
A When Jose [Quinones] told me.
Q What did Jose tell you?
A He told me, Veronica, do you know they're going to try to put the union inside? I say,
yeah. Who? I go, who? And I don’t remember he told me the name. But I ask him,
what do you think? And he told me I think they [the employees] stupid because they
[the Company] don't have money to ask...
* * *
Q When did Jose tell you this?
A Maybe like three weeks before the start -- the elections. Like three or four, yeah.
Q Where did that conversation happen?
* * *
A Cell 5, passengers.
Q Is that a work station?
A Yes, my work station.
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* * *
Q BY MS. BENESIS: After Mr. Quinones asked you if you knew about the union, do
you remember if he said anything to you about the union another time?
A After that, Yes.
Q When did he next say something to you about the union?
A I don't remember how many days after, but he told me when I working on 81/82's, he
tell me that the company already say if the union come in, they going to close down
because they don't have the money.
Q Do you remember who started that conversation?
A I don't remember, but I think I asked most of the people because I'm concerned.
Because I don't know if I'm going to vote Yes or No. So I want to know. I asking the
people, and they almost -- most of the people they ask me, they told me some things
about the union.
Q Do you remember if you asked Mr. Quinones how you should vote?
A If I ask him how you going to vote?
Q How you should vote?
A No.
Q And when you talked with other people about the union, did you start by asking them
how you should vote?
A I asked them how they think. If the union is good or bad, but I never ask if I vote Yes
or No.
Q Is the 81/82 is a work station?
A Yes.
Q Were you working when Jose told you that the company already decided they will
close if the union came in? Were you working when Jose talked to you?
A Yes, I was talking (sic) [working].
Q After that conversation with Jose, was there any other time that he talked to you
about the union?
A Yes. After -- after -- before I left, he told me if the company -- if the company get the
union, if they going to strike, well, it's not any problem because they're going to bring
people from Japan to cover the people here. They going -- wait. [Witness pauses] If
they bring the people. So I asked him what going to happen with the people who is
going to strike, and he said they going to lose their jobs because they have people to
cover the people that wants out.
Q Did he say how long people from Japan would work there?
A He don't tell me that.
Q Are you friends with Anna Pacheco?
A Not really.
Q Have you ever worked with Anna?
A Yes.
Q When did you work with her?
A I working in truck side, but I don't like the way how she works. So I move into
passengers, but still has her eyes on me every time. If I go bathroom. If I do this.
Or if I -- anything I do, everything is bad for her. No matter what. I always try to do
all my job good, but still --
Q Did you ask to be transferred so you wouldn't have to work with her?
A Yes.
Q Who did you ask to be transferred?
A [HR manager] Dawn [Tipton].
* *
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. . . Now when they had the opening to night shift, that's when I moved to night shift
because same thing. If I move to truck side, if I move passengers, they're the same
thing. She always has the eyes on me.
Q Did Jose Quinones tell you that Anna was involved in the union campaign?
A Yes.
Q What did he say about Anna and the union?
A He told me if the union wins, Anna is going to be one of the people who's going to
[be] in charge for the union. And so that made me scared because I don't want to
have nothing with Anna.
Q He said she was one of the people who was going to be in charge?
A Yeah. It's like elected for the union to be one of the -- I don't know how say it.
Q Have you ever told Jose that you don't get along with Anna?
A He knows a lot of times.
Q How does he know?
A Because I tell him. And he see it. And I'm not the only one. People who has
problems.
Q Okay. When did Jose tell you that Anna would be in charge if the union came in?
A Is when I work in 81/82's. The same day when she – he told me about the union
going to be shut down if the union's come in.
Arce testified that Quinones issued three threats. The first was that the employees’
union organizing was futile because Respondent did not have enough money to pay for the
wage demands the Union would be making. The second, connected to the first, was that
Respondent would have to close if the Union came in because it didn’t have enough money.
That threat occurred in both conversations. The third was Quinones’s statement that the
employees would have to strike and that they would lose their jobs since the strike would not
succeed because Respondent would bring workers from Japan to do the strikers’ work. Finally,
aware of Arce’s antipathy toward Anna Pacheco, he told her that Pacheco would be elected one
of the union leaders. While not exactly a threat, he knew she would be opposed to that
eventuality. He was seeking to influence her vote.
So far as I can tell each of the things Quinones told Arce was false. Nevertheless, there
was no way for Arce to be able to evaluate their trustworthiness. Respondent does not contest
Arce’s credibility. Indeed, it acknowledges that Quinones made the remarks. It concedes the
point because a few days later, when its labor consultant spoke to the employees to advise
them what could and could not be said during the pre-election period, Arce’s team leader, Vern
Kiawe told the consultants that Quinones had just made threat to the effect that the Company
would close or move if the Union came in. Quinones, in the meantime, had gone on vacation.
Upon hearing this, Respondent began some damage control. At a later meeting that
day, the consultant told employees that one of the supervisors may have said the plant would
close, asserting that the statement, if made, was absolutely not true. On July 17 Hendrick
distributed a memo (dated 3 days before) to all the team members in an effort to disavow the
unidentified supervisor’s threat, “if it was made.” The letter in its entirety:
Recently I learned that some employees may have been told by a supervisor that
if the union wins the election on July 28, 2006, the company will close the plant.
This statement, if it was made, is absolutely not true. If the union wins the
election we will have an obligation to bargain in good faith with the union, and we
would bargain in good faith.
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We do not want a union here for many reasons, which we have shared with you,
but we will not close this plant because the union wins the election. I have taken
steps to ensure that this type of statement is not repeated in the future. Such a
statement is a violation of our policy and will not be tolerated. Please feel free to
tell me or any other management member if you hear any such statement in the
future.
It should first be noted that the memo does not acknowledge that the threat was made
nor does it admit any wrongdoing. It specifically hedges as it references whatever the
supervisor may have said, using ‘may have’ and ‘if it was made’ expressions – a clear limitation
on actual acknowledgment.
Respondent did write an ‘employee observation sheet’ directed to Quinones on July 17
when he came in to get his paycheck. Both he and Juarez signed it that day, but they never sat
together until he returned to work a week or so later. The sheet warned him that he could be
terminated if he repeated the transgression. Even so, the admonition to Quinones remained
private and was never announced to the staff.
Respondent argues that it self-remedied the violation. The General Counsel disagrees.
For a respondent to successfully claim that it has self-remedied a violation of the Act it must
meet the test set forth in Passavant Memorial Area Hospital, 237 NLRB 138 (1978). There, the
Board said that for a repudiation of an unfair labor practice to be effective, it must be timely,
unambiguous and to specifically refer to the unlawful conduct. Moreover, the repudiation must
be broadly published and no further violations must have occurred. In Holly Farms, 311 NLRB
273, 274 (1993), enfd. 48 F.3d 1360 (4th Cir. 1994), 8 the Board said the employer must admit
wrongdoing.
I find that Respondent has not met the requirements of Passavant. While reasonably
timely, this repudiation was certainly not unambiguous; neither did it specifically refer to the
unlawful conduct. Nor did it address at all Quinones’s statement that unionization was a futile
act, that the plant could be moved to another state or country or his raising the specter of a
strike and loss of jobs to Japanese employees imported as strike replacements. Clearly it did
not cover all of the unfair conduct. Accordingly, I find that the General Counsel has proven, and
Respondent has not rebutted, these allegations of the complaint.
IV. Interrogation; the Discharge of Felicia Montes
As discussed above, Felicia Montes was a team leader. She was a 16-year employee
who, before her discharge, had served for about four years as the day shift team leader in the
production control department, performing shipping and receiving. I have already found that
team leaders are not statutory supervisors, but employees protected by Section 7 of the Act.
Respondent strongly urges as one of its defenses that she was a supervisor and is unprotected
by the Act. One of Respondent’s arguments is that Montes’s signature appears on a
disciplinary sheet for Hector Ocequeda when he was warned for not wearing a seat belt while
driving a lift truck. Ocequeda wrote on the back of the sheet, R.Exh 68, complaining a ‘her’
didn’t understand the facts. Respondent argued that the ‘her’ was Montes, who had initiated the
observation sheet warning. Ocequeda, however, testified that the ‘her’ was Dawn Tipton, the
HR manager who had ordered him to put the belt on. He said that group leader Aldo Montes
actually handed him the form. Respondent’s argument is severely undermined by Ocequeda’s

8 Case heard by the Supreme Court on other issues. 517 U.S. 392 (1996).
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testimony. The discipline levied upon Ocequeda has nothing to do with Montes, who seems
only to have been a witness to the warning.
Accordingly, I remain undeterred in my conclusion. Montes’s main duties were exactly
the same as her fellow team members. She noted that there were four basic jobs in her
shipping and receiving section, each performed by one of the four employees. They rotated
jobs weekly on a schedule put in place years before she became the lead. One employee did
Plant 1’s passenger division; another worked on Plant 1’s truck division; a third did Plant 2 and
the fourth, Plant 4. Montes described her job as unpacking material for distribution to the
production process, including unloading the trucks. Indeed, she first unloaded and later loaded
three trucks per day. As team leader, she was responsible for the shipping paperwork of the
group and did review paperwork prepared by the other three. The General Counsel correctly
observes that Respondent had not held Montes accountable for the work performance of the
others, either their paperwork or the manner in which they performed their jobs. Respondent’s
argument that she was a statutory supervisor is not supported by the evidence.
Respondent proffers one other defense, that Montes violated the company no-
solicitation policy. As will be shown, Respondent’s approach to this defense required it to
interrogate other employees about her union activities and that interrogation was, I find,
coercive and a separate unfair labor practice.
The facts are relatively straightforward. In early April, Montes in the dock area had a
brief conversation with fellow team leader Edwin Bagalso. Bagalso is uncertain whether he was
on a break. On cross, he said he was ‘on the clock,’ but the matter was not pursued enough to
know whether he we was working or on a paid break, which might still have meant to him that
he was ‘on the clock.’ He did not know whether Montes was working or not, since their break
times differed. In any event, the conversation was so brief it could not have interfered with work
any more than any non-work related brief comment would have. Bagalso described it:
[T]he only time a person asked me [about a union] was – was Felicia Montes.
When she asked me have you heard about the union. Then she said -- then I
said, what about the union? And then she goes, oh, nothing. Just forget it. And
then I said, and then she said, forget it. And I said, why, what about the union?
And she walked away. That was it.
Bagalso was not asked if Montes asked him to sign a union authorization card. And
several weeks later, he told HR manager Dawn Tipton who was investigating what Montes had
done, that she had not asked him to sign a card. In between, Bagalso had gone to the
Philippines to get married.
Either on the day of his encounter with Montes, or the next day, Bagalso mentioned this
snippet to his group leader, Alice Silva. He initiated the conversation by asking if Silva knew
anything about the Union. When she said she did not, he mentioned Montes’s question to him.
Eventually Bagalso’s remark came to group leader Quinones and on to production manager
Juarez.
About the same time, Montes had a similar exchange with Lue Vang, then a team leader
and Montes’s peer. In December, little more than a month before he testified, Vang had
become a group leader. According to Vang, their conversation occurred between 8 and 9 a.m.
one morning. He said she asked him how he would feel if unions represented the employees.
He replied he’d have to think about it. Vang gave an abbreviated version of what followed:
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[Witness VANG] She went into a conversation of how they could improve the plans, stuff like
that[.] [Q.] So, a discussion about protection? A. Correct.
Montes acknowledges going somewhat further, saying that she observed to Vang that
the employees had not had a raise in 4 years and had no job protection. According to Montes,
Vang was more sympathetic to her concern than his simple ‘I’ll think about it’ response.
Later that day, Vang reported the conversation to manager Juarez. Vang says he simply
recited the conversation to him. Again, there is nothing to suggest that Montes had asked Vang
to sign an authorization card.
Juarez says Vang had told him that Montes had asked him to sign an authorization card
and he reported that ‘fact’ to Hendrick as well as the Bagalso second-hand information. Based
on the testimony given by both Bagalso and Vang, it seems strange that anyone would have
concluded that Montes was seeking to get cards signed.
Nevertheless, Hendrick transmitted that information to HR manager Dawn Tipton,
directing her to conduct an investigation to see if Montes had breached the no-solicitation rule
found in the Company handbook.
Tipton was not called as a witness, and there is no dispute about what she did. On April
24, she took a statement from Juarez; later she asked Vang if Montes had talked to him about a
union. She also asked team leader Anna Pacheco the same thing. She asked Pacheco if
Montes had asked her to sign a union card; Pacheco said Montes had not. Tipton also told
Pacheco that she had heard Pacheco’s name had been brought up in some undetermined
conversation, connected it to the union and then told Pacheco “That is a no-no.” While not
asserted directly, Pacheco reasonably concluded that Tipton was telling her union organizing
was not to be carried out. Tipton told her that there would be “further investigation.”
Tipton continued on, but could not speak to Bagalso because he was gone. Even so,
she sent him a note directing him to meet with her on his first day back.
On May 3, Tipton and assistant general manager Ryan Scharffenberg met with Montes
in the Company conference room. Scharffenberg testified Tipton asked Montes if she was
aware of the no-solicitation rule. When she said she was not, Tipton asked if she had been
asking employees to sign cards. Montes answered that she knew nothing about union cards.
She asked if Montes had spoken to Vang and Bagalso, about the Union. Montes denied
that she had. Tipton did not accept Montes’s answers and informed her that she had been
named a ‘union ringleader,’ who was trying to organize the Company. At that point, Tipton
informed Montes that she was suspended without pay while the investigation continued.
Scharffenberg did not quote Tipton as mention that Montes was being disciplined for conduct
inappropriate for a supervisor.
When Montes got home, she realized she had been given no documentation about the
suspension. She called the Company and asked Scharffenberg to send something. Tipton
responded with a letter on May 5 saying that Montes had been suspended “without pay
indefinitely, while an investigation is being conducted and a decision made regarding your
recent workplace conversations.” Like the interview, it was silent about Montes’s supposed
supervisory status.
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On Monday, May 15 Bagalso returned and was immediately summoned to Tipton’s
office. His testimony:
Q [By Ms. BENESIS] What did Ms. Tipton say to you during that meeting?
A She said that -- she said that she had some questions for me.
Q Did she ask you questions then?
A Yes, she was asking me questions.
Q What question did she ask you?
A If Felicia Montes ever contacted me.
Q Did she ask you if Felicia had asked you to sign anything?
A Oh, Yes, that's one of the questions she asked me. And she --
Q And what question was that?
A If she had asked me to sign for the union.
Q What did you tell her?
A Then I told her No.
Q Did she ask you any more questions about what Felicia said?
A No, but -- Yes, she did, but it happened a long time ago. But the only thing that I told
her -- remember telling her is we passed by the aisle way and Felicia had asked me
if you [sic] [I] heard about the union. And I said, No. And then when I went back to
talk to talk -- to ask her [Montes] what about the union, and she said nothing. I don't
know what happened, but she didn't tell me. I didn't get to talk to her that day.
Q Did Ms. Tipton try to find out any more details?
A She had other questions, but I don't remember most of them.
Q Did Ms. Tipton ask you about your involvement with the union?
A No, she didn't ask.
Hendrick said that Montes was suspended because he feared she would somehow
interfere with the investigation. He believed, despite her 16 years of service, that she would
‘intimidate’ other employees from being forthcoming to the investigation.9 He was also the
individual who decided to fire Montes. He testified he fired her because she had violated both
the no-solicitation policy and the Company’s union-free policy. As before, there is no direct
mention of Montes’s supposed status as a statutory supervisor.
I think it is reasonable to find, even without the evidence affirmatively demonstrating that
the team leaders are not supervisors, that Respondent’s current argument is an after-the-fact
attempt at obfuscation. There is no evidence that supervisory status played an actual role in
Respondent’s decision-making here.
The foregoing facts constitute a confession that Respondent suspended and discharged
Montes because of her union activity. In addition, they demonstrate that Respondent’s Tipton
coercively interrogated at least one other team leader, Bagalso, about Montes’s union activity.
The same can be said for her questioning of Vang, even though he had first volunteered the
information to Juarez. That an employee is willing to provide information about another
employee’s Section 7 activity is not a license to interrogate him about it. It is coercive both as to
him and as to the individual being investigated. The same is true of the interrogation of
Pacheco. So these are all unlawful interrogations under Section 8(a)(1).

9 I find Hendrick’s reasoning to be disingenuous. He and Tipton clearly believed Montes
was a union organizer. They suspended her to prevent her from further contact with her fellow
employees, thereby interdicting her organizing efforts.
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In addition, Respondent has essentially fabricated the claim that Montes ever solicited
an employee to sign a union authorization card. There is no evidence from anyone, including
Vang, to suggest that Respondent had a good faith belief that Montes had been soliciting cards
from any employee whatsoever, much less that it occurred during work time.
Indeed the Board has recently reiterated that talking itself is not solicitation within the
meaning of a no-solicitation rule. Wal-Mart Stores, Inc., 340 NLRB 637, 638-639 (2003),
(Member Battista dissenting). There it said:
In the context of a union campaign, "'[s]olicitation' for a union usually means
asking someone to join the union by signing his name to an authorization card."
W.W. Grainger, Inc., [supra]. However, an integral part of the solicitation process
is the actual presentation of an authorization card to an employee for signature at
that time. As defined, solicitation activity prompts an immediate response from
the individual or individuals being solicited and therefore presents a greater
potential for interference with employer productivity if the individuals involved are
supposed to be working. Solicitation is therefore subject to rules limiting it to
nonworking time and, in the special circumstances of retail stores, to nonselling
areas.
* * *
Once again, our analysis turns on the distinction between union
solicitation and other employee activity in support of union organizing.
"'[S]olicitation' for a union is not the same thing as talking about a union or a
union meeting or whether a union is good or bad." In recognition of this
distinction, the Board found that an employee did not engage in conduct lawfully
proscribed by no-solicitation rules when she merely asked a coworker if she had
a union authorization card. In another instance, the Board held that an
employee's act of introducing a union representative to a coworker, and her
subsequent statement that the coworker would go along with the union, did not
constitute solicitation for which the employee could be disciplined under the
employer's no-solicitation rule. (footnotes omitted.)
Also see International Signal and Control Corp., 226 NLRB 661, 665 (1976).
What Respondent was really doing here was imposing a no-union-talk barrier. Given the
fact that Respondent had no rule against employees talking to one another about any subject, it
cannot bar their discussions about the union so long as work is not being neglected.
The Supreme Court has said, "The place of work is a place uniquely appropriate for
dissemination of views concerning the bargaining representative and the various options open
to the employees." NLRB v. Magnavox Company of Tennessee, 415 U.S. 322, 325 (1974).
That observation, of course, is tempered with the requirement that employees are expected to
be performing their work during their work time and should not be distracted from working by
matters unrelated to work. Every employer knows that workers talk about all sorts of things
while they work. They also know that talking can be distracting, but that it often is not. If a
distraction of that nature occurs, it is easily correctible. But, prohibiting discussion of certain
subject matters while allowing others is problematical. Thus, a rule which bars talking about any
subject at all might theoretically pass muster under the Act. But, such a rule would make for a
very unpleasant place to work and could not be easily enforced. For that reason, such rules are
never seen. Recognizing that reality, the Board has held company rules which prohibit talking
about matters protected by Section 7 during work while permitting talk about any other subjects
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violate §8(a)(1) of the Act.10 Opryland Hotel, 323 NLRB 723 (1997), citing Teksid Aluminum
Foundry, 311 NLRB 711, 713-714 (1993); Meijer, Inc., 318 NLRB 50, 57 (1995); Jennie-O
Foods, 301 NLRB 305, 316 (1991); T & T Machine Co., 278 NLRB 970 (1986); Orval Kent Food
Co., 278 NLRB 402 (1986); Cerock Wire & Cable Group, 274 NLRB 888, 897 (1985). Also,
Saginaw Control and Engineering, 339 NLRB No. 76 (2003). Such a rule does not prevent an
employer from telling employees who have stopped work to talk to get back to work.
Whatever Montes was doing, it did not breach any rule against solicitation. At most she
was trying to generate a brief conversation with a fellow employee, a peer team leader, about
their feelings toward union representation. That is far from solicitation. Talk itself cannot be
solicitation. She was doing what Magnavox expressly permits. Respondent did not tell her to
go back to work; it hunted her down and fired her for engaging in protected activity in support of
union representation. That is a clear violation of Section 8(a)(3) and (1) of the Act. Moreover,
Tipton’s imposition of such a bar on Pacheco during the hunt for Montes (“That is a no-no.”),
violates Section 8(a)(1) as well.
V. Election Issues – Case 32–RC–5443
A. The Postures of the Parties
As the election closed on July 28, the Union was leading 33 to 28, a margin of just five
votes. There were ten challenged ballots which are determinative of the final outcome. Most of
those voters are, or were, team leaders, including discriminatee Felicia Montes. The Board
affirmed the Regional Director’s sustaining the challenge to one of the ten, leaving nine for
resolution, still a determinative number.
In addition, the Union/Petitioner filed five objections which, in the event the final tally
does not support its bid for certification, would if sustained, require a second election. The first
three objections tend to track the unfair labor practice complaint, but are not congruent with it.
The last two assert that the Employer allowed supervisors in the voting area, particularly in
assigning a supervisor (Lue Vang, then a team leader) to be an election observer.
The Employer filed eleven objections. The Board has adopted the Director’s rejection of
Employer objection No. 10. The Board ordered the Director to include four of the Employer’s
objections to be heard with the five the director had already ordered to hearing. Thus the
Employer’s nine remaining objections will be decided here.
Those may be grouped discretely. The first group ( Nos. 1, 2, 3, and 9) deals with the
polling place layout, where it asserts that during the early morning session, the Union’s
observers were sitting too closely to the voters as they cast their ballots. This, it asserts,
allowed for the impression that voters’ selections were under surveillance and made it appear
as if the balloting was not secret. It also asserts that the Board agent was complicit in this
conduct because she did not take steps to rearrange the layout to prevent the conduct.

10 Section 7 of the Act states: “Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to refrain from any or all such
activities except[ions not relevant here].
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The second group (Nos. 6 and 8) deals with the number of observers the Union placed
at the polls. It also alleges that the Board agent was complicit and contributed to the problem by
not taking appropriate steps to deny the Union the additional observer.
Objection 5 asserts that one of the Union’s observers engaged in electioneering at the
polls.
The foregoing objections are all aimed at the conduct of the election itself. The
remaining objections are directed to conduct which occurred in the days before the election.
Objection No. 4 asserts that Montes and Pacheco solicited employee support and authorization
cards during work time.
Objection 7 asserts that the Union is responsible for the intimidation of an employee at
her home by vandalizing a streetside mailbox and leaving a dead rat and a car with union
stickers in the driveway. Objection 11 asserts that even if the Union cannot be shown to be
responsible for the incident, the election should nevertheless be overturned because it
interfered with the laboratory conditions the Board requires for its elections.
As with the Union’s concerns, the Employer seeks a new election in the event that in the
final tally the Union obtains a majority of the votes. Therefore the objections must be resolved
before the challenged ballots can be resolved and opened. The Union’s objections will be
analyzed first.
In general, the Board will not entertain objections to an election which occur prior to the
commencement of the pre-election critical period. Ideal Electric & Mfg. Co., 134 NLRB 1275
(1961). Ideal Electric establishes the pre-election critical period to be the time frame between
the filing of the election petition and the conclusion of the polling. Therefore, incidents occurring
prior to June 20 or after the July 28 poll closing will not be considered as affecting the election
outcome. They may nevertheless be unfair labor practices reachable under Section 10 of the
Act.
B. The Petitioner’s Objections
Clearly the Section 8(a)(1) threats to close and/or move the plant uttered by group
leader Quinones a week after the petition fall within the critical period. This conduct is
encompassed by Petitioner’s Objection No. 1 (PetObj 1). Nor, as I have found, was the conduct
properly repudiated. To the extent that the PetObj 1 alleges that the Employer would carry out
post-election reprisals different beyond closing or moving, no evidence has been presented.
Similarly, PetObj 2 asserts that the wage increase announced on June 30 was an attempt to
discourage employees from voting in favor of union representation. I have previously found that
wage increase to be an unfair labor practice within the meaning of Section 8(a)(1).
In PetObj 3 the Union contends that the Employer threatened to decrease wages or take
other action against the employees if they voted for the Union. Here I do not find any evidence
of a threatened wage decrease, but I have found that Quinones unlawfully created the
impression that union representation would be futile and, in addition, that in the event of a strike,
the striking employees would be replaced by workers coming from Japan. I think PetObj 3 fairly
encompasses such a threat.
As for PetObjs 4 and 5, these are directed at the Employer’s use of Lue Vang as an
observer. I have found above that team leaders are not supervisors as defined by Section 2(11)
of the Act. Vang, accordingly, was a Section 2(3) employee. The Employer’s selection of Vang
did not interfere with the conduct of the election.
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The Board has consistently held since Dal-Tex Optical Co., 137 NLRB 1782 (1962), that
conduct violative of the Act is a fortiori conduct which interferes with the exercise of a free and
untrammeled choice in an election. Accordingly, following the law set forth in Dal-Tex, I find that
unfair labor practices occurring during the preelection critical period are grounds for setting
aside the election and ordering a rerun since they match PetObjs 1, 2, and 3. Therefore, in the
event the final tally does not demonstrate a majority in favor of the Union, I will recommend that
the election be set aside and a new election conducted.
C. The Employer’s Objections
As noted above, the first group of employer objections, Nos. 1, 2, 3, and 9 (EObjs 1, 2,
3, and 9) targets the polling layout that the Employer asserts was misconduct or the appearance
of misconduct.
The facts are not in dispute and R.Exhs 64-67 are four photographs of the polling place
taken after the morning session. (At the Employer’s request the tables were moved further
apart for the afternoon session.) The polling place was Respondent’s conference room. It is
not a large room, but adequately houses one 6-or-8 person conference table, a smaller table
and a telephone table, as well as several chairs, enough for each table and apparently some
along the wall. The tables were arranged in a Τ, with the small table across the top of the large
table. Two NLRB blue corrugated cardboard voting partitions or booths were set atop the small
table about a foot apart. They are designed for tabletop use. I have administratively
determined that this official Agency equipment is 16 inches high, 24 inches wide, and 19 inches
deep. Within the booth’s confines, the voter places the ballot on the table top, 16 inches below
the top of the booth. There is even a two inch brace flap across the top of the booth which
serves as an additional blind to shield the voter’s marks. This system is similar to some
curtainless public election partitions, although in public elections the observers are much further
away than here and the partition’s size is often more shallow than the Board’s. In that latter
respect, the Board’s partitions are superior to those used in public elections, for they are more
private.
Lue Vang provided the Employer’s testimony. He was the only one of three observers
who testified. As mentioned, he was a team leader who later became a group leader. It was his
tipoff to the Employer’s attorney during the break between the two election sessions that caused
the photographs to be taken.
Vang testified that the two union observers were Stephanie Martinez and Felicia Montes.
He said that that the Company representatives during the pre-election conference made two
objections to the union observers. First, that the Board agent permitted the Union to have two
observers while the Employer only had one. Second, that the Board Agent permitted Montes to
serve as an observer even though she had been discharged.
Vang agreed that the Board Agent gave the Employer the opportunity to obtain a second
observer and that it declined, saying that there was insufficient time. The Employer did not add
a second observer for the second session, either, though there clearly was sufficient time at that
stage.
The Board Agent and the observers took their places at the long table. Although there
was room for three chairs on each side, the photo shows only two were used. The Board agent
sat in the middle chair on the left side of the long table. Stephanie Martinez sat to the Board
Agent’s left and next to the smaller table supporting the voting partitions. She sat with her back
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to booths and Vang says Martinez never looked at the voters as they cast their ballots behind
her. Montes sat opposite Martinez, on the large table’s right side. Vang agrees that Montes
also sat with her back to the voting partitions and he never saw her look at the voters casting
their ballots. Vang sat in the middle chair next to Montes and opposite the Board agent. The
Board agent was in a swivel chair and with the help of the observers could watch the voters
enter the room from the door behind her. No one sat in the other two chairs.
Once the voters identified themselves to the Board Agent, she gave them a ballot. They
would then walk past Martinez, round the edge of the small table and stand behind one of the
two booths. They cast their ballot, returned the way they came in, and as they exited, placed
their ballot in the ballot box which, during the first session, sat on the telephone table next to the
door. Vang did not testify that the secrecy of any voter’s ballot was compromised by this
arrangement. He was concerned, however, by the close proximity of the two Union observers
to the voting partitions. Had they made the effort to do so, he thought that they could have risen
from their seats and looked inside. He agrees they never did. Moreover, the photos show that
the eye level of each (photographic stand-in) observer was about even with the top of the
partitions. I find that, despite their proximity to the partitions, no observer could have looked
over the 16 inch booth front without standing and making an obvious effort to do so. There is no
evidence that voters made any complaint about ballot secrecy even though the observers were
sitting right in front of them. I find that ballot secrecy was not compromised. Instead, all three
observers focused on identifying the voters as they came through the door. Indeed, voter
identification is their primary duty. A person desiring to look into the booth would have had to
make a great and obvious effort to do so. As a result, I find, secrecy of voting was in fact
accorded to each voter. Furthermore, I find that this arrangement did not even create the
appearance that ballot secrecy was being compromised.
Therefore, Respondent’s objections cannot be sustained and must be overruled. It is
certainly well settled that the Board must maintain and protect the integrity and neutrality of its
election procedures. Integrity of the process is a hallmark of Board election procedures.
There are some similarities here with Avante At Boca Raton, 323 NLRB 555 (1997), at
least in the sense that the objection there also raised concerns about the arrangement of voting
equipment in the polling place. There, the objection complained that the ballot box was too
close to the observers. Yet, as here there was no evidence that ballot secrecy was somehow
compromised. “The Employer did not present any voters to testify about witnessing any of the
observers, the translator or the Board agent handling or tampering with their ballot once
marked, nor to testify about the fact that their election choice was witnessed or that they had the
impression that it was witnessed by one of those individuals as they approached the ballot box.”
Id at 558.
The Board adopted the hearing officer’s recommendation that the objection be
overruled. Clearly a mere assertion that secrecy was compromised is insufficient to warrant
setting an election aside. That is all we have here, a mere assertion. Indeed, Vang’s testimony
demonstrates that the evidence is to the contrary. No observer made any effort to look into the
voting booths and they could not have seen into them without making an obvious effort to do so.
I shall recommend that EObjs 1, 2, 3, and 9 be overruled as not supported by any evidence.
EObjs. 6 and 8 assert that the Union’s insistence on having two observers while the
Employer could only provide one breached the election agreement and is ground for setting the
election aside. Again, the facts are undisputed. The fifth paragraph of the Stipulated Election
Agreement states: “OBSERVERS. Each party may station an equal number of authorized,
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nonsupervisory-employee observers at the polling place to assist in the election, to challenge
the eligibility of voters, and to verify the tally.”
The Board has certainly said that the provision in the election agreement is a ‘material’
provision, at least to the extent that it establishes for each party a bargained-for ‘right’ to have
observers. Breman Steel Co., 115 NLRB 247, 249 (1956) (employer denied any observer);
Browning-Ferris Industries of California, Inc. 327 NLRB 704 (1999) (union denied any observer).
In both cited cases the Board set the election aside and ordered a second election.
In Best Products Co., 269 NLRB 578 (1984), affd. 765 F.2d 903 (9th Cir. 1985), during
the preelection conference before the first voting session, the Petitioner requested that the
number of observers be increased to two per party on the grounds that an additional observer
was necessary to enable the Petitioner to identify all the voters. The Board agent granted the
request, and requested the Employer to provide an equal number of observers. The Employer
declined for several reasons. The Board thereupon overruled the objection which followed and
issued the appropriate certification. However, the Board has held that where a union did not
learn until the pre-election conference that the employer was selecting two observers for each
station at a multi-site election and could not reasonably have obtained additional observers, the
election must be set aside. Asplundh Tree Expert Co., 283 NLRB 1 (1987).
In Inland Waters Pollution Control, et al., 306 NLRB 342, 342-343 (1992) (Member
Raudabaugh dissenting), the Board observed that even though the clause in the stipulated
agreement established a ‘right’ and was a ‘material’ clause, it was not an absolute right. As the
Board noted, it does not logically follow
[T]hat “because the Board agent refused to seat [the late-arriving observer], the
denial was a material breach of the agreement. The right to an observer, while
material, is not absolute. It is an implicit condition of an election agreement that
the observer to which a party is entitled will show up in time to carry out his or her
functions without risking disruption of the election. If, as here, a party's observer
arrives when the election is well underway and the Board agent makes a
reasonable judgment that instructing and installing the observer at that point
would disrupt the election, and if, as here, the party has failed to take reasonable
steps to make up for the late arrival--such as appointing an alternate available to
serve in the designated observer's place--then the party's own conduct has
prevented it from securing its "right" to an observer.
Accordingly, the Board overruled the objection.
Here, Company vice-president Hendrick testified that the Union, at the time of the pre-
election conference, advised that it intended to have two observers. Stephanie Martinez was
one and she was present for the meeting. The other, though identified early on, discriminatee
Felicia Montes, did not arrive until toward the end of the conference. Hendrick initially objected
to Montes as an observer since she was no longer employed. That was resolved after a short
discussion. Respondent’s counsel then objected that the number of observers was now
unequal. The Board agent proposed that the Employer get another observer. Hendrick testified
that the attorney responded that there was not enough time, that the election was to start at
5:30, and the Company did not have time to pull somebody off the floor and explain their duties
to them. The record does not show the time of day when he made his observation. As a result,
the election was conducted with the Union having two observers and the Employer having one.
In addition, even though the Employer could have found a second observer for the afternoon
session, it chose not to do so.
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On these facts, I do not find any breach of the Stipulated Election Agreement
whatsoever. First, the language of the Stipulated Election Agreement itself uses the word ‘may,’
rendering the provision permissible: “Each party may station an equal number. . . . “
Furthermore, circumstances did not arise which barred the objecting party from having any
observer at all. The Employer did have an observer, Vang, who seems to have carried out the
Employer’s concerns, particularly with respect to the election arrangements discussed above.
I am also persuaded by the logic of Inland Waters Pollution Control, supra. The clause
in question is a ‘material one, of course. But, the breach was not material, if it may even be
called a breach. It appears to me that the Employer has failed to demonstrate that the Board
Agent denied it the opportunity to obtain a second observer. Even if time had been short, the
Board Agent could probably have instructed any newly arriving observer concerning his/her
duties. The decision to go forward with one observer was made by Respondent. It simply did
not exercise its permissive right to find a second observer. I shall recommend that these
objections be overruled.
EObj 5 asserts that one of the Union’s observers, Stephanie Martinez, engaged in
electioneering within the meaning of the Board’s Milchem 11 rule. This rule prohibits prolonged
conversations between persons connected to a party, including election observers, with
prospective voters waiting to vote. Such conversations, without regard to their content, will be
sufficient to set aside an election as improper electioneering near the polls. It does not apply
where the voter initiates the conversation or consists of ordinary pleasantries or chance
remarks. In those types of case, the objection will not be sustained as they do not constitute
electioneering.
In support of this objection, the employer offered the testimony of its observer Lue Vang.
He testified that Union observer Stephanie Martinez was sitting in the chair to the left of the
Board agent with her back to the voting partitions. In that position, she could easily see the
Board agent, the door and the ballot box behind the agent’s swivel chair and, of course, voters
who entered the room to vote. Indeed, all three observers had approximately the same aspect
of the room as they faced the doorway.
Vang testified that at one point during the morning session Angel Martinez, a team
leader from Plant 2, came into the room.12 Stephanie Martinez asked him “Was that all your
people?” Angel Martinez simply replied, “Yes.” There is no evidence that anything further was
said by either. Indeed, Vang was not asked if Stephanie Martinez made the remark before or
after Angel voted. Furthermore, he did not offer evidence concerning whether any other voters
were in the room at that moment.
The Employer urges that I find the comment made by Stephanie Martinez to be a
statement of employee solidarity and therefore impermissible electioneering. I cannot concur.
First, this is not a Milchem type of conversation. It was extremely brief, not prolonged in
any way. Indeed, Stephanie’s words were a question seeking a one-word answer, apparently
an inquiry about whether all the people from Angel’s work area had now voted. It is certainly not
electioneering on its face. Nor would it have been even if Angel’s answer had been “No.” Had
he given a negative answer, she might have asked him to urge the remaining employees to
come vote. This, of course, is rank speculation, but it would not have constituted electioneering

11 170 NLRB 362 (1968). Misprinted ‘Michem’ in the title line.
12 As a team leader, Angel Martinez cast a challenged ballot.
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if that had been the direction her question led, for urging fellows to vote, without a partisan
message, is only asking them to exercise their right under the law. Only by innuendo could one
reach the conclusion suggested by the Employer. Yet, given the lack of evidence about other
voters being in the area, that conclusion would only be speculation, too. I find that EObj. 5
should be overruled.
EObj4 asserts that team leaders Felicia Montes and Anna Pacheco interfered with the
election in the days and weeks before by soliciting union authorization cards during work time
and in violation of the Employer’s no-solicitation rule. This can have merit only if the two were
statutory supervisors. I have earlier found that they were not. But even if they were
supervisors, no showing has been made demonstrating the extent of their involvement.
Moreover, it is manifest at this stage that Montes never solicited cards at all, nor did the
Employer have any realistic basis to believe that she had.
Laborer Sylvia Gonzalez said that Pacheco had asked her to sign a union card on
April 29, but there is no evidence that Pacheco presented one for Gonzalez’s signature. In fact,
the conversation initially was an inquiry by another employee about whether Gonzalez was
going to attend an immigration march on May 1.
Q [By Mr. DOWDALLS] Okay. Now, when this conversation between you and Anna
Pacheco was taking place, who did it start, how did it come up?
A [Witness Sylvia GONZALES] I was working on clamp set, on 21, 22, was (sic) [with]
Gilbert Pimentel, and he, she asked me if I come to this Monday the May 1st.
Q Come to what?
A To work. It’s the immigrants march, something like that.
Q So, that was the day of the big immigrants march?
A On Monday.
Q That was Monday?
A Monday.
Q Was that May 1st?
A May 1st.
Q Okay.
A And we was working was Saturday April 29th.
Q Okay.
A And I say, I don’t know, you come? And she [Anna Pacheco] told me, no, oh, maybe
I’m not. And she start to tell me if I know about the union and that thing. And I say, I
don’t know. And she asked me if I -- oh -- after that she told Hebe (phonetic) if he
come this Monday to work. And Hebe say, no. And she told her, aye, it’s your
people, come on, it’s your people. And loud she asked me about if I want to sign a
card, and I say I don’t know, let me think.
Q Did she say what the card was for?
A No. But she, before she told me about that union and that thing.
Q Okay. So, she was talking to you about the union, telling you about the union?
A Yes.
Q And then she asked you if you would sign a card?
A Yes.
Q Okay. All right. Well, let me ask you then, what did you say?
A Oh, I say I don’t know, let me think.
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The import of this testimony’s is very elusive. Gonzalez seems to believe the card was
for the Union, but never quite says so. In fact, she’s not certain that Pacheco even had a card
at all. Gonzalez says Pacheco had a paper in her hand, but she never saw what it was. Her
uncertainty prompted some questions from me.13
In any event, it seems to me that the Employer is challenging the Union’s showing of
interest, claiming it was undermined by supervisory solicitation committed by Montes and
Pacheco. This is an effort, by indirect means, to challenge the sufficiency of the Union’s initial
showing of interest. The Board will not permit litigation of such an issue. O.D. Jennings & Co.,
68 NLRB 516 (1946). Regional Directors will examine such matters administratively, but the
claim needs to be supported by evidence. Moreover, a collateral attack on the sufficiency of the
showing of interest will not be permitted. International General Electric, S. A., Inc., 117 NLRB
1571 (1957). Similarly, the Board will not look behind the showing of interest made by the
regional director if the issue is brought up in a post-election circumstance. Goldblatt Bros., Inc.,
118 NLRB 643 (1957); Gaylord Bag Co., 313 NLRB 306, 307 (1993).
Also see, Glomac Plastics, 194 NLRB 406 (1971), which outlines the level of supervisory
infection necessary to declare those cards invalid. That case arose in a demand for recognition
framework, not in an election objections context, as here. I, however, will not concern myself
with it, particularly since the argument has no merit once the non-supervisory status of the
solicitors has been established.
Finally, it is clear that the conduct occurred before the petition was filed on June 20.
Montes had been suspended as of May 3 and hadn’t been at the facility for over 6 weeks before
the critical period even commenced. Pacheco’s single solicitation of Gonzalez, if it can be so
termed, occurred on April 29, some 7 weeks before the petition was filed.
It may be argued that even though the solicitation occurred before the critical period
began, an exception should be made. Lyon's Restaurant, 234 NLRB 178 (1978) does seem to
provide for an exception to the Ideal Electric pre-election critical period limitation on objections.
Even so, I find it to be distinguishable, for the exception deals with an entirely different type of
complaint, dues waivers/vote purchasing under the Savair doctrine. 14 This exception simply
has no application to an isolated solicitation of an authorization card intended to demonstrate an
adequate showing of interest. EObj 4 will be overruled.
The final objection, EObj 7 asserts that the election should be set aside due to
someone’s having vandalized the streetside mailbox of a voter, leaving a dead rat in her
driveway. It also references a car in the voter’s driveway having prounion stickers, but no
evidence on this claim was adduced.
The only testimony in support of this objection was by Alma Baca, who is a 14-½ year
employee who works the day shift in the Plant 1 truck department. She testified that 9 or 10

13 ADMINISTRATIVE LAW JUDGE POLLACK: She had something in her hand?
THE WITNESS: -- something in her hands.
ADMINISTRATIVE LAW JUDGE POLLACK: But, you didn’t get to see what it was in her
hand?
THE WITNESS: No, no, that’s why I told you I can’t tell you it’s that card or not, because
I’m not sure.
14 NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973)
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days before the election she had a conversation with her son Matthew about the Union.
Matthew is a Plant 2 employee who still lives at home with his parents. She initiated the
conversation, asking him if anybody had approached him about the Union. He replied that
someone had, asking him if “he was still with us?” He told his mother he had said he was, and
then said the person had asked about her. She testified he told her that he had responded, “I
don’t know if she is, but I can get her to change her mind.”
Two days later, now a week before the election, she rose at her normal time, 4:15 or
4:30 a.m. to get ready for her 6 a.m. workday. The Bacas’ house is about a mile and a half from
the plant. As she arose, she heard a loud bang in front of the house and the sound of a car
driving away. She says both she and her husband opined that it sounded as if something had
happened to the mailbox, located on a post on the street. They did not investigate.
Later, when she exited the house to go to work, about 5:45 a.m., she saw a dead rat in
front of her car in the driveway. Then, as she drove away from the house, she saw the family
mailbox had been knocked off its post. She reported the incident to her supervisor, group
leader, Frank Cordero.
The Employer has offered no evidence demonstrating why the incident should be
attributed to anyone connected to the election, yet asserting that the conversation she had with
her son somehow implicates the Union. First, the evidence is rank hearsay; but second, there is
nothing in the remark which would tie the Union to incident. If the Union is counting probable
votes in advance of the election, as Matthew’s conversation suggests, it does not follow that the
Union would resort to intimidation as a means of obtaining her vote.
Recognizing the weakness of its argument, the Employer alternatively asserts that
unknown third parties may have vandalized the mailbox and thrown the dead rat in the
driveway. It correctly invokes the Board’s long-held the laboratory conditions requirement,
asserting that it does not really matter who is culpable for misconduct, but if the misconduct
created an atmosphere which interferes with the employees’ free and untrammeled right to
choose a bargaining representative, the election should be set aside. See, e.g., Al Long, Inc.,
173 NLRB 447 (1969).
Here, however, there is no other conduct available which can be used as a ground for
finding the atmosphere had become so infected the ability to run a fair election had been
destroyed. The vandalized mailbox and dead rat cannot even be said to have been connected
to the election at all. That being the case, the incident cannot have affected the atmosphere
surrounding the election in the first place.
Even so, if the incident could somehow be connected to the election, it was isolated,
occurring a week beforehand. It was insufficiently widespread to have contaminated the pre-
election atmosphere. I will recommend that this objection be overruled, as well.
D. Challenged Ballots
Having found that the persons holding the job classification of team leader are all
statutory employees, it follows that all of them were entitled to cast a ballot in the representation
election conducted July 28. Those individuals are: Edwin Bagalso, Lue Vang, Angel Martinez,
Oscar Sanchez, Keing Orn, Phanna Kang, Anna Pacheco, and Israel Quinto. The ninth
remaining challenge is Felicia Montes. Montes, of course, is also a team leader. In addition, I
have found that Montes was unlawfully suspended and later discharged in violation of Section
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8(a)(3) and (1) of the Act as detailed above. Under the Act, she is entitled to a remedy which
includes reinstatement to her job. She, too, is entitled to cast a ballot in this election.
Conclusions of Law
1. Respondent is an employer engaged in commerce and in a industry affecting
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
2. General Teamsters Local No. 439, affiliated with International Brotherhood of
Teamsters, is a labor organization within the meaning of Section 2(5) of the Act.
3. On the dates shown in the decision, Respondent violated Section 8(a)(1) when its
Human Resources Manager Dawn Tipton coercively interrogated employees about their union
activities, sympathies and desires and about the union activities, sympathies and desires of
other employees.
4. In May and June, Respondent acting through Tipton violated Section 8(a)(1) by
telling employees they could not talk about organizing a labor organization in circumstances
which did not interfere with their work.
5. On the dates shown in the decision, Respondent, acting through a statutory
supervisor, group leader Jose Quinones, violated Section 8(a)(1) by telling employees
Respondent would close or move the plant to another state or country if the employees chose
union representation, by telling employees that unionization was a futile act, and by telling
employees that striking would result in their losing their jobs.
6. On June 30, Respondent violated Section 8(a)(1) by granting a wage increase for the
purpose of deterring employees from voting in favor of union representation in an NLRB
election.
7. On May 3, Respondent violated §8(a)(3) and (1) of the Act when it suspended its
employee Felicia Montes because of her union activity; thereafter, on May 25 it violated Section
8(a)(3) and (1) when it discharged Montes because of her union activity.
Remedy
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. And, as Respondent discriminatorily suspended and then
discharged its employee Felicia Montes, it will be ordered to offer her immediate reinstatement
and make her whole for any loss of earnings and other benefits, computed on a quarterly basis
from the date of her discharge to the date of a proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Furthermore, it shall be
required to expunge from Montes’s personnel file any reference to her illegal discharge.
Sterling Sugars, 261 NLRB 472 (1982). Finally, it shall be directed to post a notice to
employees advising them of their rights and describing the steps it will take to remedy the unfair
labor practices which have been found.
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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 15
ORDER
Respondent, Pacific Coast M.S. Industries Co., Ltd., Tracy, California, its officers,
agents, and representatives, shall
1. Cease and desist from:
a. Coercively interrogating employees about their union activities, sympathies and
desires and the union activities, sympathies and desires of other employees.
b. Telling employees they cannot talk about organizing a labor organization in
circumstances which do not interfere with their work.
c. Telling employees that it will close or move the plant to another state or country if the
employees choose union representation; telling employees that unionization was a
futile act; and telling employees that striking will result in their losing their jobs.
d. Granting wage increases for the purpose of deterring employees from voting in favor
of union representation in an NLRB election.
e. Suspending, discharging or otherwise disciplining employees because they engage
in activity protected by Section 7 of the Act, including organizing on behalf of any
labor union.
f. 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 Felicia Montes full reinstatement to
her former job or, if that job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privileges previously enjoyed.
b. Make Felicia Montes whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her, in the manner set forth in the Remedy section
of the decision.
c. Within 14 days from the date of this Order, remove from its files any reference to
Montes’s unlawful discharge, and within 3 days thereafter notify her in writing that
this has been done and that the discharge will not be used against her in any way.
d. Preserve and, within 14 days of a request, make available to the Board or its agents
for examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an

15 If no exceptions are filed as provided by § 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in § 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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electronic copy of the records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
e. Within 14 days after service by the Region, post at its plant in Tracy, California
copies of the attached notice marked “Appendix.” 16 Copies of the notice, on forms
provided by the Regional Director for Region 32 after being signed by Respondent's
authorized representative, shall be posted (in English and any other foreign language
deemed appropriate by the Regional Director) by 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 Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the
Respondent at any time since May 3, 2006.
f. Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Recommendation Concerning Objections to the Election; Case 32–RC–5443
Based on the foregoing findings concerning the objections to the election filed by each
party, I recommend that the Board overrule all of the Employer’s Objections. I further
recommend sustaining the objections filed by the Petitioner-Union. Additionally, I recommend
that the challenged ballots be opened and counted and a revised tally of votes be issued. I
further recommend that in the event that the revised tally does not result in a majority cast in
favor of representation by the Union-Petitioner, that the July 28, 2006, election be set aside and
an second election be held at a time to be determined by the Regional Director. Finally, in the
event that a majority of votes is cast for the Petitioner-Union, I recommend that a certificate of
representative be issued in its favor.
Dated, Washington, D.C., May 25, 2007
____________________
Jay R. Pollack
Administrative Law Judge

16 If this Order is enforced by a Judgment of the 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.”
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 coercively interrogate you about your union activities, sympathies and desires or
the union activities, sympathies and desires of other employees.
WE WILL NOT tell you that you cannot talk about organizing a labor organization in
circumstances which do not interfere with your work.
WE WILL NOT tell you that the Company will close or move the plant to another state or country
if you choose union representation; WE WILL NOT tell you that unionization is a futile act; and
WE WILL NOT tell you that striking will result in your losing your job.
WE WILL NOT grant wage increases for the purpose of deterring you from voting in favor of
representation by General Teamsters, Local 439, International Brotherhood of Teamsters in
an NLRB election.
WE WILL NOT suspend, discharge or otherwise discipline you because you engage in activity
protected by Federal law, including organizing on behalf of any labor union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of your rights guaranteed by Federal law as listed above.
WE WILL within 14 days from the date of Board’s Order, offer Felicia Montes full reinstatement
to her former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges she previously enjoyed.
WE WILL make Felicia Montes whole for any loss of earnings and other benefits suffered as a
result of our discrimination against her.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any reference
to Felicia Montes’s unlawful discharge, and within 3 days thereafter notify her in writing that this
has been done and that the discharge will not be used against her in any way.
PACIFIC COAST M.S. INDUSTRIES CO., LTD.
(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.
1301 Clay Street, Federal Building, Room 300N, Oakland, CA 94612-5211
(510) 637-3300, Hours: 8:30 a.m. to 5 p.m.
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, (510) 637-3270.
JD(SF)–15–07
Tracy, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA
PACIFIC COAST M.S. INDUSTRIES CO., LTD.
and Case 32–CA–22748-1
32–CA–22861-1
GENERAL TEAMSTERS, LOCAL 439, 32–RC–5443
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
TABLE OF CONTENTS
Statement of the Case ...................................................................................................... 1
Findings of Fact ................................................................................................................ 2
I. Jurisdiction.............................................................................................................. 2
II. Respondent’s Organization .................................................................................... 2
A. Overview......................................................................................................... 2
B. Team Leaders................................................................................................. 3
III. Interference, Restraint and Coercion..................................................................... 8
A. The Wage Increase........................................................................................ 8
B. Threats; Attempted Repudiation...................................................................... 11
IV. Interrogation; the Discharge of Felicia Montes ...................................................... 14
V. Election Issues – Case 32–RC–5443..................................................................... 19
A. The Postures of the Parties............................................................................. 19
B. The Petitioner’s Objections ............................................................................. 20
C. The Employer’s Objections ............................................................................. 21
D. Challenged Ballots.......................................................................................... 27
Conclusions of Law........................................................................................................... 28
Remedy ............................................................................................................................ 28
ORDER............................................................................................................................. 29
Recommendation Concerning Objections to the Election; Case 32–RC–5443.................. 30
APPENDIX........................................................................................................................ 1