Pan American Grain Co.

National Labor Relations Board - Board Decisions

Oct 26, 2004

343 N.L.R.B. 318 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 47
318
Pan American Grain Co., Inc., and Pan American
Grain Manufacturing Co., Inc. and Congreso De
Uniones Industriales De Puerto Rico. Cases 24–
CA–9138, 24–CA–9144–2, 24–CA–9161, 24–CA–
9216, 24–CA–9227, 24–CA–9350, 24–CA–9390,
and 24–CA–9447
October 26, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG
On April 12, 2004, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.
1. We agree with the judge that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by implementing
its February 27, 2002 layoff of 15 striking employees
without giving the Union adequate notice and a reason-
able opportunity to bargain. The Respondent contends
that it provided the Union with adequate notice of its
intention to lay off employees when it informed the Un-
ion, during collective-bargaining negotiations in 2001,
that it planned to continue staff reductions in the future
consistent with increased efficiency. As the judge found,
however, the Respondent’s general statements concern-
ing potential future work force reductions were not suffi-
ciently specific to provide the Union with a reasonable
opportunity to bargain over the Respondent’s decision to
implement the February 27 layoffs. See, e.g., Gannett
Co., 333 NLRB 355, 357 (2001) (holding that, to be ade-
quate under the Act, “[t]he prior notice must afford the
union a reasonable opportunity to evaluate the proposals

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent’s exceptions were limited to challenging the judge’s
finding of an 8(a)(5) and (1) violation for implementing the February
27, 2002 layoffs without giving the Union notice and an opportunity to
bargain; the judge’s recommendation of a reinstatement and full back-
pay remedy; and the judge’s finding that the Union’s first unconditional
offer to return to work occurred on July 10, 2002. No exceptions were
filed to the remainder of the judge’s decision.
and present counter proposals before implementing [the]
change”).
We reject the Respondent’s contention that the man-
agement-rights clause contained in the parties’ collec-
tive-bargaining agreement constituted a waiver by the
Union of its right to bargain over the Respondent’s deci-
sion to lay off employees and over the effects of those
layoffs. Even if we were to assume that the parties’ con-
tract contained such a waiver, it is well established that
“the waiver of a union’s right to bargain does not outlive
the contract that contains it, absent some evidence of the
parties’ intention to the contrary.” Paul Mueller Co., 332
NLRB 312, 313 (2000) (quoting Ironton Publications,
321 NLRB 1048 (1996)). The parties’ collective-
bargaining agreement expired in November 2000, over a
year before the layoffs at issue here, and there is no evi-
dence that the parties intended any alleged waiver con-
tained therein to continue in effect after the contract’s
expiration. Accordingly, the Respondent cannot rely on
any provisions of the expired collective-bargaining
agreement to justify its failure to provide the Union with
notice and an opportunity to bargain over the layoff deci-
sion and the effects of that decision.2
2. The Respondent contends that the judge erred in
recommending a full backpay remedy, rather than the
limited remedy described in Transmarine Navigation
Corp., 170 NLRB 389 (1968). We disagree.
In Bridon Cordage, Inc., 329 NLRB 258, 259 fn. 11
(1999), the Board explained the nature of the two types
of remedies as follows:
Where, as here, the evidence establishes that a
layoff was the direct result of a decision over which
an employer has no bargaining obligation, the Board
has provided the more limited Transmarine “effects”
remedy. This limited remedy is distinguishable from
those cases where the layoff decision was a separate
and independent employer decision and not the di-
rect result of an earlier, nonbargainable decision. In
such cases, a full backpay and reinstatement remedy
for the layoffs is ordered.
Id. (internal citations omitted). Here, we have found
that the Respondent’s decision to lay off employees was
a mandatory subject of bargaining, and that the Respon-
dent violated Section 8(a)(5) and (1) by failing to satisfy
its obligation to bargain both over the decision and its
effects. Accordingly, we find that the full backpay and
reinstatement remedy is appropriate.

2 Members Meisburg and Schaumber note that, had the Respondent
established a past practice of implementing substantial layoffs under
circumstances similar to those presented at the time of the February 27,
2002 layoff, they might view the case differently.
PAN AMERICAN GRAIN CO. 319
3. Finally, we find merit in the Respondent’s exception
to the judge’s finding that the strikers made an uncondi-
tional offer to return to work on July 10, 2002. Accord-
ingly, we amend the judge’s decision and recommended
order to reflect our finding that the first unconditional
offer to return to work was made on August 5, 2002.
Consistent with the Respondent’s exception, which
was conceded by the General Counsel in its answering
brief, we find that the Union’s offer to return to work on
July 10, 2002, was not unequivocally unconditional. The
Union’s July 10 letter stated that, “We reiterate that the
employees are available to work without conditions.”
(Emphasis added.) The Union’s prior offer to return to
work indicated that “the employees are available to im-
mediately return to work under the same conditions al-
ready negotiated.” Furthermore, in the July 10 letter
containing the offer to return to work, the Union contin-
ued to demand that the Respondent abide by the alleg-
edly agreed-upon conditions. This ambiguity, combined
with Figueroa’s testimony at the hearing suggesting that
the July 10 offer to return to work was not, in fact, un-
conditional, supports our finding that the Union’s first
unconditional offer to return to work was made on Au-
gust 5, 2002, instead of on July 10, 2002.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that Pan American Grain Co.,
Inc., and Pan American Grain Manufacturing Co., Inc.,
San Juan, Puerto Rico, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(e).
“(e) Treat the former strikers as persons who have re-
mained employees since the start of the strike and pro-
vide them with reinstatement to their previous positions,
or substantially equivalent positions, that have or will
become available subsequent to the unconditional offer
to return to work on August 5, 2002.”
2. Substitute the attached notice for that of the admin-
istrative law judge
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discriminatorily refuse to consider Do-
mingo Garcia’s January 2002 request for leave because
he engaged in protected activity by participating in a
strike.
WE WILL NOT discontinue medical plan payments for
Jose Rossner Figueroa and Alberto Ortiz Serrano be-
cause employees engaged in protected activity by strik-
ing.
WE WILL NOT lay off unit employees without first giv-
ing adequate notice of our intention to do so to the Union
and affording the Union an opportunity to bargain in
good faith over the layoff and its effects.
WE WILL NOT discriminatorily reduce the wages of the
following individuals because they engaged in a strike or
other protected activity: Ramon Mojica-Santiago; Angel
Granado-Ortiz; Cesar Gonzalez-Ocasio; Luis Marrero
Ramos; Armando Torres-Garay; Hector Figueroa-
Martinez; Domingo Garcia; Ruben Baez-Garcia; Marcelo
Franco Villegas; Daniel Castro Rafa; Jorge Ortiz-
Tavarez; Alberto Franco-Mateo; Ernesto Martinez-
Martinez; Miguel Maldonado Molina; Policarpio Gon-
zalez Martinez; Daniel Cruz Suarez; Carlos Fernandez
Centeno; Miguel Mercedez Sanchez; Luis Montanez
Cintron; Genaro Ortiz Alvarez; Omar Maysonet Merced;
Pedro Reyes Vargas; Isaias Rivera Rodriguez; Edwin
Roman Herrera; Andres Agosto Flores; Ramon Alicea
Garcia; Mariano Pagan Cruz; Tony Melendez Pacheco;
Heriberto Olivero Negron; Bill Montes Rodriguez; Nel-
son Sandoval Leon; Carlos de los Santos Robles; Wil-
liam Gomez Narvaez; Geovanni Perez Guadalupe; Is-
mael Rivera Guadalupe; Ismael Rivera Delgado; Vin-
cente Martinez Canario; Angel Medina Vargas; Alberto
Ortiz Serrano; Ivan Vazquez Muniz; and Jose Rossner
Figueroa.
WE WILL NOT treat the individuals listed above as new
hires or deny them reinstatement to their prestrike posi-
tions or substantially equivalent positions when such
positions become available.
WE WILL NOT refuse the Union’s request for a state-
ment of the names and positions of employees at our
Amelia, Corujo, Muelle, and Anexo Romana facilities, or
unreasonably delay the provision of information relevant
to the Union’s bargaining responsibilities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD320
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL consider Domingo Garcia’s January 2002 re-
quest for leave and provide him with backpay for any
paid leave that he requested and for which he had ac-
crued the necessary benefit.
WE WILL, on request, bargain with the Union concern-
ing the decision to lay off employees on February 27,
2002, and the effects of that decision.
WE WILL reinstate and make whole the employees laid
off on February 27, 2002, for loss of pay and other em-
ployment benefits suffered as a result of our unlawful
conduct.
WE WILL treat the individuals who engaged in the
strike that was initiated on January 8, 2002, as persons
who have remained employees since the start of the
strike and provide them with reinstatement to their previ-
ous positions or substantially equivalent positions, that
have or will become available subsequent to the uncondi-
tional offer to return to work on August 5, 2002.
WE WILL make the individuals who engaged in the
strike that was initiated on January 8, 2002, whole for
any loss of earnings and/or other benefits that they suf-
fered as a result of the discriminatory reduction in their
wages and the unlawful denial of reinstatement.
WE WILL immediately furnish the Union with the names
of all employees working for us at the Amelia, Corujo,
Muelle, and Anexo Romano facilities, and will state the
specific position (e.g., welder, electrician, mechanic, pellet
mill operator, batcher, mixer) held by each employee, as
requested by the Union in its letter of November 27, 2002.
WE WILL, at the request of the Union, furnish the Union
in a timely fashion with any information that is relevant
for purposes of collective bargaining.
PAN AMERICAN GRAIN CO., INC., AND PAN AMERICAN
GRAIN MANUFACTURING CO., INC.
Miguel A. Nieves-Mojica, Esq. and Marisol Ramos, Esq., for the
General Counsel.
Ruperto Robles, Esq. and Rafael J. Lopez Rivera, Esq., of San
Juan, Puerto Rico, for the Respondent.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in San Juan, Puerto Rico, on 32 days from November 13, 2002,
to December 4, 2003. The case arises out of eight charges filed
by Congresso de Uniones Industriales de Puerto Rico (the Union)
against Pan American Grain Manufacturing Co., Inc., and Pan
American Grain Co. (the Respondent). The Regional Director
for Region 24 of the National Labor Relations Board issued the
complaint in Case 24–CA–9227 (complaint I) on May 31, 2002,
and the consolidated complaint in Cases 24–CA–9138, 24–CA–
9161, and 24–CA–9216, on July 31, 2002. On October 22, 2002,
the Regional Director issued a complaint (complaint II), which
consolidated Cases 24–CA–9138, 24–CA–9161, and 24–CA–
9216 with Cases 24–CA–9144-2 and 24–CA–9350. On October
31, 2002, the Regional Director issued an order consolidating the
cases included in complaint I and complaint II, but did not issue a
new complaint integrating the allegations for all six cases. On
December 31, 2002, the Regional Director issued a complaint
(complaint III) in Case 24–CA–9390 and, on January 31, 2003, a
complaint in Case 24–CA–9447 (complaint IV). On April 11,
2003, upon motion by the General Counsel, I consolidated Cases
24–CA–9390 and 24–CA–9447 with the prior six cases.1
The complaint2 alleges that the Respondent violated Section
8(a)(3) and (1) of the National Labor Relations Act (the Act)
when it terminated the employment of a total of 41 bargaining
unit employees in February and April 2002, withheld accrued
vacation benefits from one unit employee, and stopped making
payments to the medical plans of two unit employees who were
on medical leave, all because the employees joined and/or as-
sisted the Union and engaged in concerted activities, including a
strike. The complaint further alleges that the Respondent vio-
lated Section 8(a)(5) and (1) by discontinuing its payments to the
medical plans of the two employees without first bargaining with
the Union. The complaint also alleges that the Respondent unilat-
erally changed employees’ existing terms or conditions of em-
ployment in violation of Section 8(a)(5) and (1) by beginning to
require its employees to sign for receipt of Saturday work sched-
ules, and violated Section 8(a)(3) and (1) by suspending six em-
ployees who refused to comply with the requirement. The com-
plaint alleges that the Respondent dealt directly with unit em-
ployees in violation of Section 8(a)(5) and (1) by soliciting em-
ployees to accept the Respondent’s proposal for a collective-
bargaining agreement and by seeking a response from employees
to the proposal. The complaint alleges that the Respondent vio-
lated Section 8(a)(1) by making threatening statements and by
disparaging the Union.
The complaint also alleges that the Respondent violated Sec-
tion 8(a)(3) and (1) when it reinstated the terminated employees
because it: did not offer them their previous positions or substan-

1 The Union filed the charge in Case 24–CA–9138 on January 10,
2002, the charge in Case 24–CA–9144–2 on May 16, the charge in
Case 24–CA–9161 on January 24, the charge in Case 24–CA–9216 on
March 14, the charge in Case 24–CA–9227 on March 26, and the
charge in Case 24–CA–9350 on August 2, 2002. The Union filed
amended charges in Cases 24–CA–9227, 24–CA–9216, 24–CA–9138,
and 24–CA–9144–2, on April 26, May 16, June 13, and October 2,
2002, respectively. The Union filed a second amended charge in Case
24–CA–9227 on May 10, 2002. When the trial in this matter opened it
concerned only these six cases. The trial initially closed on December
12, 2002. Subsequently, on April 11, 2003, I granted the General
Counsel’s motion to consolidate the cases that had already been heard
with two closely related cases, Cases 24–CA–9390 and 24–CA–9447.
Pursuant to Sec. 102.35(8) of the Board’s Rules and Regulations, the
record in the prior cases was reopened. On June 16, 2003, the Board
upheld my decision to consolidate the cases.
2 By “the complaint” I refer to all the complaints consolidated in this
proceeding. Specific complaints will be identified by the use of roman
numerals, as indicated above.
PAN AMERICAN GRAIN CO. 321
tially equivalent positions; imposed more onerous and rigorous
working conditions on them; assigned them to less desirable
work shifts; and reduced their wages. In addition, the complaint
alleges that the Respondent violated Section 8(a)(5) and (1) by
failing and refusing to comply with the Union’s request to furnish
the names and positions occupied by its employees at various
facilities.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel and the Respondent,3 I make the following
FINDINGS OF FACT4
I. JURISDICTION
The Respondent,5 a Puerto Rico Corporation, has its central
office in Bo. Amelia, Guaynabo, Puerto Rico (the Arroz Rico
facility), and other places of business in the Amelia Industrial
Park in Guaynabo, Puerto Rico (the Amelia facility), and the
Corujo Industrial Park in Bayamon, Puerto Rico (the Corujo

3 The General Counsel and the Respondent had submitted briefs re-
garding Cases 24–CA–9138, 24–CA–9144-2, 24–CA–9161, 24–CA–
9216, 24–CA–9227, and 24–CA–9350, before I issued my order re-
opening the record and consolidating those cases with Cases 24–CA–
9390 and 24–CA–9447. After the completion of the hearing on the
consolidated cases, the General Counsel and the Respondent again filed
briefs. The initial briefs are referred to as GC Br. (I) and R. Br. (I).
The briefs filed after the additional two cases were added, and the re-
cord reopened (GC Br. (II) and R. Br. (II)).
After the initial briefs were filed, and before the record was re-
opened, the Respondent submitted a reply brief, along with a motion
for leave to file it. In its motion, the Respondent argues that it should
be permitted to file the reply brief because the General Counsel’s brief
distorted the record and offered a mistaken reading of prior precedent.
The General Counsel opposes the Respondent’s motion. After consid-
ering the matter, I conclude that the Respondent has not shown that its
reply brief does anything more than expand upon some of the Respon-
dent’s contentions regarding the facts and law applicable to this case.
Therefore, I deny the Respondent’s motion for leave to file its reply
brief.
The Respondent has also made a motion for leave to file a transla-
tion of R. Exh. 26 after the original deadline for submission of transla-
tions. That motion is granted.
4 The court reporter did not paginate the entire transcript in this case
consecutively. Rather the transcript pages for the November 2002 trial
days were numbered 1 to 505, and the pages for trial days from De-
cember 2002 till the trial closed in December 2003 were numbered 1 to
3868. Citations in this decision refer to the November 2002 transcript
as “Tr. (I),” and to the December 2002 to December 2003 transcript as
“Tr. (II),” followed, in both cases, by the page number assigned by the
court reporter.
5 The General Counsel alleges that Pan American Grain Co., Inc.,
and Pan American Grain Manufacturing Co., Inc. constitute a single-
integrated business enterprise. The Respondent neither admits nor
denies this, but does admit that Pan American Grain Co., Inc., and Pan
American Grain Manufacturing Co., Inc. have: been affiliated business
enterprises with common officers, ownership, directors, management,
and supervision; formulated and administered a common labor policy
affecting employees of the operations; shared common premises and
facilities; have provided services for and made sales to each other;
interchanged personnel with each other; and, held themselves out to
public as a single-integrated business enterprise. I find that Pan Ameri-
can Grain Co., Inc., and Pan American Grain Manufacturing Co., Inc.,
constitute a single-integrated business enterprise.
facility). The Respondent is engaged in the importation, manu-
facture and sale of grains, animal feed and related products, and
in the processing of rice. During the 12-month period preced-
ing the issuance of complaint I, the Respondent, in conducting
its business operations, purchased and received at the Arroz
Rico facility goods valued in excess of $50,000, directly from
points outside the Commonwealth of Puerto Rico. During the
12-month periods preceding the issuance of complaints II, III,
and IV, the Respondent, in conducting its business operations,
purchased and received at its Corujo and Amelia facilities goods
valued in excess of $50,000, directly from points outside the
Commonwealth of Puerto Rico. I find that the Respondent is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent manufactures animal feed at its Amelia and
Corujo facilities, and processes rice at its Arroz Rico facility.6
The Respondent also maintains a warehouse facility in an area
referred to as “the docks” or “Muelle,” and a weighing station
known as “Anexo Romana.” The Union has been the collective-
bargaining representative of production and maintenance em-
ployees at the Amelia and Corujo facilities since 1986, and at the
Arroz Rico facility since 1992 or 1993. Production and mainte-
nance employees at the docks and Anexo Romana are also cov-
ered by one of these collective-bargaining agreements. At all
relevant times, Jose Gonzalez (Gonzalez) has been the president
of the Respondent, and Jose Figueroa (J. Figueroa) has been the
president of the Union. The last collective-bargaining agreement
(CBA or agreement) covering unit employees at the Amelia and
Corujo facilities expired on November 21, 2000, and the one at
the Arroz Rico facility expired on March 4, 2002. As of the time
of trial, successor agreements had not been executed for these
facilities.
On January 8, 2002, unit employees at the Respondent’s Ame-
lia and Corujo facilities initiated a strike. On February 27, 2002,
during the strike, the Respondent notified 15 of the strikers that
they were being laid off. On April 16, 2002, while the strike
continued, the Respondent notified 26 unit employees (all the
remaining strikers plus two unit employees on long-term sick
leave) that they had been permanently replaced.
B. Signatures Required on Saturday Schedules
The Respondent’s unit employees at the Corujo facility gener-
ally work from Monday to Friday each week, but sometimes the
Respondent calls upon them to work on a Saturday. Prior to
December 17, 2001, the supervisors coordinated the Saturday
schedules with employees when such work was necessary. The
Respondent would communicate the company’s needs to em-
ployees who then, with the participation of the union steward,
decided which employees would perform the Saturday work. A
schedule was not presented to employees, nor were they required

6 The Respondent refers to its animal feed operation as “Pan Ameri-
can Grain Company,” and to its rice operation by the slightly different
name, “Pan American Grain Manufacturing Company.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD322
to sign anything memorializing the schedule; however, a note
regarding which employees were working which Saturday shifts
was created for the information of supervisors.
The Respondent deviated from this practice beginning on De-
cember 17, 2001. That day it presented employees at the Corujo
facility with a memorandum from Osvaldo Marin (maintenance
manager) setting forth a work schedule for Saturday, December
22. The memorandum assigned particular employees to work on
each of three shifts and also stated that “[n]on-compliance with
the above could carry the imposition of severe disciplinary
measures.” Before this memorandum was distributed, Fausto
Didonna (supervisor) and Andres Agosto (shop steward and
member of union bargaining committee) had, through the usual
method, arrived at a different schedule for the same Saturday.
Agosto told Marin that he did not agree with the new schedule.
On December 18, 2001, Didonna directed Agosto to place his
signature on the memorandum from Marin, and stated that Ger-
ardo Curet (operations manager) had directed that this be done.
Agosto refused because, in his words, he “wasn’t going to ac-
cept what was written down.” Didonna stated that the signature
was only to acknowledge receipt of the memorandum. Agosto
still refused to sign, stating that if the Respondent wanted him
to acknowledge receipt, then a separate receipt form should
have been provided. Didonna also directed Nelson Sandoval, a
deputy steward, to sign the schedule, but like Agosto, Sandoval
refused.7
In letters dated December 21, Curet admonished Agosto and
Sandoval for refusing to sign for receipt of the Marin memo-
randum and stated that the next “similar act” would result in a
3-day unpaid suspension. After Agosto received this letter,
Agosto and Arturo Figueroa (A. Figueroa)8 called Curet. Cu-
ret, Agosto, and A. Figueroa worked together to arrive at an
overtime schedule that covered Saturday, December 29, 2001,
and Saturday, January 5, 2002. On December 24, 2001, Curet
and A. Figueroa signed this agreed-to schedule. The schedule
was posted on the bulletin board, but on that same day Marin
gave Agosto and Sandoval another schedule for December 29
that differed from the one that had just been agreed to by Curet,
Agosto, and A. Figueroa. Agosto and Sandoval refused to sign
the schedule presented by Marin, and Agosto subsequently
asked Curet why another schedule had been distributed that was
different from the one they had agreed on. Curet told Agosto
that the Company would follow the agreed on schedule, not the
one presented by Marin. By letter dated January 4, 2002, Curet

7 I do not credit Sandoval’s testimony that he was told to sign the
document in order to show his commitment to comply with the sched-
ule. This is contrary to Agosto’s account of how Didonna presented the
signature requirement, and also with the letter and memorandum from
the Respondent documenting the event. I did not find Sandoval a very
credible witness based on his demeanor and testimony. Sandoval testi-
fied that the Respondent had never asked him to sign documents in the
past, Tr. (I) 394, but the record included multiple examples of docu-
ments from the Respondent that Sandoval had signed, Tr. (I) 395–396,
398, 401, 412. When Sandoval was confronted with these documents
he, at first, responded evasively, but eventually conceded that the Re-
spondent often had him sign documents. Id.
8 Arturo Figueroa is a union official who was on the bargaining
committee. He is also the father of J. Figueroa, the union president.
suspended Agosto and Sandoval for 3 days without pay for
“refusing to sign the acknowledgment receipt.”
The record shows that in many instances the Respondent had
employees sign to acknowledge receipt of documents handed to
them by supervisors and agents of the Company. For example,
Agosto signed an admonishment letter from the Respondent to
acknowledge receipt of that admonishment, not to show accep-
tance of what was stated in the letter. The record also includes
examples of documents that the Respondent distributed to em-
ployees that were not signed by the recipients. Indeed, while
Luis Juarbe (director of human resources) testified that requir-
ing employees to acknowledge receipt of any document pro-
vided to them has been the Respondent’s practice since he
came to the Company in 1999, he conceded that supervisors
sometimes failed to follow that practice. The Respondent did
not show that it had ever disciplined an employee for failing to
sign a document prior to December 2001. In fact, Juarbe testi-
fied that he knew of no such cases. By the same token, the
General Counsel did not show that there were past incidents
when, as here, employees had refused to sign documents to
acknowledge receipt after the supervisor expressly instructed
them to do so. The Respondent’s employee manual sets forth
the discipline applicable to various offenses and does not list
failure to sign for receipt of work schedules among the offenses
subject to discipline, and contains no policy requiring that
documents be signed. The manual does set forth discipline for
an employee’s “refus[al] to work reasonable overtime.”
C. Contract Negotiations
During 2001, the Respondent and the Union engaged in ne-
gotiations for a successor to the agreement covering the Amelia
and Corujo facilities. According to both Gonzalez and J. Fi-
gueroa, the parties agreed to terms for a successor CBA by late
2001. However, the parties never executed a successor CBA.
The Union presented the Respondent with a CBA that, accord-
ing to the Union, embodied the terms the parties had agreed to,
but the Respondent declined to sign it. On January 8, 2002, the
same day that the unit employees went on strike, the Respon-
dent provided a proposed CBA to the Union. This proposed
CBA was different from the one presented by the Union, but
the Respondent contends that it, rather than the Union’s ver-
sion, embodies the terms the parties had agreed to. The Union
did not agree that the Respondent’s version reflected the
agreement reached by the parties, and refused to sign it. In a
letter dated February 12, J. Figueroa also stated that there were
eight “unfair practices,” mostly involving individual employ-
ees, that the parties had to “attend to” or “discuss” “before at-
tending to the signing of the [CBA].” A number of these issues
had not been raised by the Union prior to the start of the strike.
At a meeting between the parties on February 22, 2002, Alberto
Fernandez, a representative of the Respondent, stated that if the
Union was conditioning signing the CBA on the Respondent’s
agreement regarding the eight issues “collateral” to the CBA,
there was nothing further to discuss. Subsequent to this, at a
point prior to April 16, 2002, the Respondent notified the Un-
ion that it believed impasse had been reached. The Union de-
nied that there was an impasse.
PAN AMERICAN GRAIN CO. 323
In February 2002, the parties began negotiations for a succes-
sor to a separate agreement, this one for the Arroz Rico facility.
That agreement was set to expire on March 4, 2002. The Re-
spondent posted a copy of the Union’s proposal on a bulletin
board at the facility. Then the Respondent prepared a written
version of its own proposed CBA and presented it to the Union
on March 21 or 22. In the cover letter accompanying the pro-
posal Gonzalez asked that the Union “consider favorably this
offer that is extremely reasonable for everyone,” given the “eco-
nomic reality of the enterprise.” The Respondent, within a day or
two after obtaining a return receipt indicating that its CBA pro-
posal had been delivered to the Union, distributed the proposal to
employees at the Arroz Rico plant. The proposal materials were
distributed to employees individually during a change in shift.
When employee Jose Colon received the materials he asked An-
tonio Jacobs, plant manager, if it was the Respondent’s proposal,
and Jacobs stated that it was Respondent’s “best and only offer.”
Jacobs told another employee, Francisco Aponte, that the pro-
posal was the “most reasonable . . . for . . . employees.” In at
least some instances, Jacobs told employees to study and evaluate
the proposal so that they would know what it consisted of when
the matter was discussed by the bargaining committee or in an
assembly.
D. The Strike at the Amelia and Corujo Facilities
The Union initiated a strike at the Amelia and Corujo facilities
on January 8, 2002. On the day the strike began, Gonzalez issued
a memorandum to the Union and the strikers, and included with it
a proposed CBA which he said was “the agreement that the com-
pany is willing to sign because it was so agreed.” In the memo-
randum, Gonzalez went on to state that the CBA was the “best
agreement of this industry,” and accused the Union of causing the
strike by injecting new issues into the bargaining process after the
parties had reached a full agreement. In the memorandum, Gon-
zalez also stated that unless the Union signed the agreement by 1
p.m. that day, he would conclude that “its contents were not cor-
rect” and that the parties would return to the bargaining table to
analyze all the positions of the parties. He warned that the costs
to the Respondent resulting from the strike would be taken into
account during subsequent negotiations and that the Respondent
would “not financially affect other employees because of ex-
penses incurred by [the strikers].” He also listed a number of
companies that, according to him, had shut down because of
“strikes of this nature.”
E. Gonzalez Meets with Betancourt and Maldonado
Juan Betancourt and Noel Maldonado are truckdrivers who,
prior to January 2002, regularly transported materials for the
Respondent. Although they are not part of the bargaining unit,
both ceased performing work for the Respondent when the strike
began. According to Betancourt, he told the Respondent that the
reason he ceased this work was because of concern about his
personal safety. On January 8 or 9, 2002, Betancourt was in the
area where the striking employees were picketing when he re-
ceived a call on his cell phone from Gonzalez. Gonzalez asked
Betancourt to come to his office. Betancourt, who had helped to
mediate a strike at the Respondent’s facility in 1996, agreed to
meet with Gonzalez. On the way to Gonzalez office, Betancourt
invited Maldonado to accompany him and the two proceeded to
the office together.
When Betancourt and Maldonado arrived at Gonzalez’ office,
Gonzalez asked them whether they were on the “side” of the
strikers or of the company. Betancourt and Maldonado informed
Gonzalez that they were on the Company’s side. Gonzalez said
that he had told the strikers to return to work by 1 p.m., and that
if they did not do so they would “find themselves out of the com-
pany, they wouldn’t return.” He stated that if the employees did
not return by 1 p.m. he “would rather close the company” than
reach an agreement with them. Gonzalez told them that he could
make more money by converting the facility into offices. He
stated that he had $8 million set aside for a project at the Arroz
Rico facility, but that now he “might possibly not carry . . . on
with it.” Gonzalez called the strikers “jerks” and “sons of
bitches,” and said he would not be concerned if it cost him $2
million to rid the company of them. Betancourt responded that
the strike could be settled if Gonzalez “just gave in a little and the
Union representatives or strikers also gave in a little.” Betan-
court stated that many of the strikers had been with the Respon-
dent from its inception, and opined that the success of the enter-
prise was the result of having a good president and good employ-
ees. Gonzalez replied that he would not reach any deal with J.
Figueroa. He said he would wait for the strikers to run out of
money and then would laugh as the strikers lost their homes and
cars, and found that their wives were unfaithful to them. He
punctuated these comments by thrusting his hips in what
Maldonado understood as a sexually suggestive gesture.9 Gon-

9 I have credited Betancourt’s and Maldonado’s generally consistent
testimony regarding statements made by Gonzalez during the meeting.
Neither Betancourt nor Maldonado is a member of the Union, or has
otherwise been shown to be biased in favor of the Union. Indeed, it is
undisputed that Betancourt told Gonzalez that they were on the com-
pany’s “side” in the dispute. Gonzalez himself stated that Betancourt
had been instrumental in mediating a strike between the Company and
the bargaining unit employees in 1996. Although Betancourt did not
work during the strike, he made clear to the Respondent that this was
because of concerns over his personal safety. Betancourt and
Maldonado both testified in a confident and certain matter about the
meeting. Gonzalez’ denials, to the extent that they can be called that,
were not convincing to me. He testified that he had not made any of
the “immoral” statements he is accused of, but when the Respondent’s
counsel gave him an opportunity to deny the specific statements Betan-
court and Maldonado testified to, Gonzalez answers were evasive. In
many instances, rather than directly deny that he made the statements,
he testified that the actions he allegedly threatened to take were incon-
sistent with actions he actually was taking, or that his alleged comments
were contrary to his personality. See generally Tr. (II) 463–468. For
example, when asked about his alleged statement that he would wait for
the strikers to spend all their money, that the strikers’ wives would be
unfaithful and that he would laugh, Gonzalez responded that these
statements were contrary to the way he treated employees, but he did
not directly deny making the threat. Tr. (II) 465–466. When asked
about the allegation that he called the strikers “sons of bitches” and
“jerks,” Gonzalez responded that he had known the employees for a
long time, treated them as friends, and characterized the alleged state-
ments as “not me.” Tr. (II) 466–467.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD324
zalez urged Betancourt to talk to J. Figueroa and “get some sense
into him.”10
After Betancourt and Maldonado left their meeting with Gon-
zalez, they returned to the area where the strikers were. The strik-
ers asked Betancourt to recount what Gonzalez had said, but
Betancourt replied that he would discuss the matter only with J.
Figueroa.11 When J. Figueroa arrived, Betancourt and he went to
a restaurant, away from the striking employees, and Betancourt
related what Gonzalez had said.
F. Status of Betancourt and Maldonado
The parties disagree about whether Betancourt and Maldonado
are employees of the Respondent for purposes of Section 2(3) of
the Act, or whether they are independent contractors. The record
shows that the Respondent does not provide either Betancourt or
Maldonado with identification cards or uniforms. The Respon-
dent generally pays truckdrivers per load according to the weight
of the load, not based on an hourly wage, or a salary. The Re-
spondent does not deduct social security, income tax, or unem-
ployment compensation premiums from their pay, and it does not
provide them with benefits such as a health plan, sick leave, va-
cation pay, or overtime, which are provided to its production
employees. Betancourt and Maldonado receive no training from
the Respondent, pay their own fines for traffic violations, and
obtain necessary trucking permits on their own. The Respondent
does not require Betancourt and Maldonado to work exclusively
for the Company; however, in practice, both drivers generally use
all of their work time providing services to the Respondent.
Betancourt and Maldonado are not required by the Respondent to
appear for work every day, or at a particular time, and after they
complete a delivery it is up to them to decide whether to return to
the Respondent and seek additional work that day. Maldonado
has increased his revenues from the Respondent by operating a
total of four trucks and hiring three drivers to work for him.
Maldonado, not the Respondent, makes deductions from the pay
of these drivers for such things as income tax, social security, and
the State insurance fund, and provides fringe benefits such as
Christmas bonuses, sick leave, and vacation leave.
Betancourt and Maldonado own their trucks and the Respon-
dent does not require them to place the Respondent’s name or
logo on the trucks. The Respondent has no involvement in the
purchase, maintenance, or repair of the trucks, and does not re-
quire that only certain models of truck be used. The Respondent
does not pay for fuel for the trucks and does not provide over-
night parking. In order to carry materials for the Respondent,

10 The General Counsel suggests that Gonzalez asked Betancourt to
talk to employees about what they had discussed. However, the record
only establishes that Gonzalez asked Betancourt to talk with Union
President J. Figueroa, who is not an employee of the Respondent.
11 In its initial brief, the General Counsel asserts that Betancourt tes-
tified that after the meeting with Gonzalez he rejoined the picketing
strikers and “talked to them about the things that had transpired.”
However, the citations relied on by the General Counsel do not support
the contention that Betancourt and Maldonado told the strikers anything
about the threats made by Gonzalez. To the contrary, Betancourt
clearly testified that when the strikers asked him what Gonzalez said,
his response was that he would discuss the matter with J. Figueroa. Tr.
(I) 136–137, 151. The record does not show that Maldonado discussed
Gonzalez’ comments with any of the employees.
Betancourt’s and Maldonado’s trucks are outfitted with certain
additional equipment. An entity called the Environmental Qual-
ity Board requires that these modifications be made on trucks
carrying the types of materials that the truckdrivers transport for
the Respondent. In Betancourt’s case, he bought the necessary
equipment and the Respondent assisted in its installation, but in
Maldonado’s case the Respondent had no involvement at all in
making the modifications. Due to concerns about contamination,
there are also certain types of materials that Betancourt and
Maldonado are prohibited from transporting in their trucks if they
also wish to transport materials for the Respondent. The Envi-
ronmental Quality Board imposes these anticontamination re-
strictions on the Respondent, which in turn requires compliance
from truckdrivers who provide services to the company.
Betancourt and Maldonado generally carry materials between
facilities owned by the Respondent. Once the material is loaded
into the truck, they take it to a destination specified by the Re-
spondent, but are free to choose their own route to that destina-
tion. They do not collect money on behalf of the Respondent.
G. Garcia Denied Vacation Pay
Domingo Garcia is a welder who began working for the Re-
spondent in 1993. On a form dated January 7, 2002, Garcia re-
quested leave for a vacation to commence on January 14, 2002.
Garcia had previously discussed the matter with Curet (opera-
tions manager), who gave his approval. Garcia and his supervi-
sor both signed the request. After Garcia submitted the vacation
request, the strike commenced on January 8 and Garcia partici-
pated in the strike. Garcia was not paid for the vacation that was
to begin on January 14. Juarbe testified that when Garcia’s leave
request arrived at the human resources department, “the employ-
ees had already gone on strike. So it was not processed.”
Employees Garcia, Agosto, and Jose Rossner Figueroa (Ross-
ner) all testified that in their experience Curet was the official
who approved employees’ vacation leave. However, Luis
Juarbe, the Respondent’s human resources director, explained
that authorization was not final until after the human resources
department verified that the employee had accrued the number of
vacation days sought. Consistent with Juarbe’s statement, the
Respondent’s form for requesting vacation leave has the follow-
ing signature line: “Approved by: _________, Human Re-
sources Director.” According to the applicable collective-
bargaining agreement, employees “will accrue vacations with full
pay . . . as long as they have worked one (100) hundred hours or
more per month.”
Garcia stated he had always received vacation pay if Curet ap-
proved it, but he conceded that he did not know whether further
review had followed Curet’s approval. Similarly, Rossner testi-
fied that he did not know if the leave request had to be signed by
an official from human resources. I find, based on the record in
this case, that vacation leave was not authorized until after the
human resources department confirmed that the employee had
accrued the leave, and an official of the human resources depart-
ment signed the request. Garcia’s leave form in this instance was
signed by himself and a supervisor, and his request had previ-
ously been approved by Curet, but no official from the human
resources department signed the form or approved the request.
PAN AMERICAN GRAIN CO. 325
H. Respondent Discontinues Medical Insurance
Payments for Rossner and Ortiz
Rossner and Alberto Ortiz Serrano (Ortiz) were on unpaid
medical leave at the time the strike began on January 8, 2002.12
Rossner, an employee of the Respondent for approximately 20
years, began his unpaid medical leave in September 2000. Ortiz,
an employee of the Respondent for approximately 11 years began
his medical leave in 2001, most likely in about December of that
year. By letters dated January 10, 2002, the Respondent notified
Rossner and Ortiz that the Respondent “w[ould] not continue
making its contribution to the Health Plan.” The letters informed
Rossner and Ortiz that they could subscribe to “extended cover-
age under COBRA” by notifying the Respondent within 60 days
and paying premiums of $234.90.13
Pursuant to contract and practice, the Respondent permits the
bargaining unit employees an unpaid medical leave of up to 2
years. During that 2-year period, the Respondent continues to
make payments for the employee’s health plan. The health plan
that covers the bargaining unit employees is a group plan chosen
by the Union. The Respondent’s only responsibility regarding
this health plan is to make a monetary contribution for the plan’s
premiums.
The Respondent did not introduce any evidence that the pro-
vider for the health plan had informed the company that the plan
had been, or soon would be, canceled, or that premium payments
could no longer be made for Rossner and Ortiz.
I. Layoff and Replacement
Before the Union made an unconditional offer to return to
work at the Amelia and Corujo facilities, the Respondent in-
formed the bargaining unit employees that their services were no
longer needed. First, in a letter dated February 27, 2002, the
Respondent notified 15 of the striking employees at the Amelia
and Corujo facilities that they were being laid off effective im-
mediately. In a February 27 letter to the Union, Juarbe stated that
these individuals were being laid off as a result of the following
“positions” being “permanently eliminated”: “A-Skilled-Truck
Loader/Utility; A-Skilled-Buhler Pellet Mill Operator; A-Skilled-
Pellet Mill Operator; A-Skilled-Electrician; A-Skilled-Welder;
A-Skilled-Mechanic; Welder four (4) position; A-Skilled-Cotton
Container Unloader; A-Skilled-Mechanic; A-Skilled-Sprout Pel-
let Mill Operator; B-Skilled-Sprout Mill Operator; B-Skilled-
Pellet Mill Operator.” In a letter dated April 16, 2002, the Re-
spondent notified the remaining 26 striking employees at the

12 At trial, the Respondent introduced a document from the State
human resources department, dated August 27, 2001, stating that Ross-
ner had no emotional condition. However, the Respondent has not
claimed that this document led it to conclude that Rossner was no
longer entitled to medical leave. To the contrary, on October 22, 2001,
almost 2 months after the State human resources department issued the
document, the Respondent’s human resources director certified in writ-
ing that Rossner was still on sick leave and had been since September
18, 2000. At about the same time, Rossner’s physician, Jose Roman,
M.D., stated that Rossner would require continuing medical treatment
for an indefinite period of time. Dr. Roman stated that Rossner was
taking three types of medication and had monthly appointments.
13 The letters do not state how often this amount would have to be
paid.
Amelia and Corujo facilities that they were being permanently
replaced as of 5 p.m. that day.
Regarding the February layoff, Gonzalez’ uncontradicted tes-
timony was that in 1996 the Respondent embarked on a project to
modernize its facilities, and that this project significantly reduced
the Respondent’s staffing needs and resulted in one or two lay-
offs each year since its inception. The modernization project
continued in late 2001 and early 2002, and the new equipment
was so efficient that the Respondent was able to shut down one
of two production lines at the Amelia facility and still meet the
demand for its products. In addition, the Respondent’s sales
dipped substantially when the strike started, further decreasing
the Respondent’s staffing needs in the early months of 2002. In
February 2002, Gonzalez met with Curet (operations manager)
and Eduardo Fernandez (treasurer/budget) to discuss the Respon-
dent’s budget and plant operations. They concluded that the
Respondent required fewer employees and would implement a
layoff.14 Gonzalez felt it was appropriate to immediately notify
the Union that the 15 employees had been selected for layoff,
even though those employees were on strike and therefore were
not providing services to the company. His understanding was
that striking employees were not generally entitled to unemploy-
ment compensation, food stamps, and other government benefits,
but that by informing the Union that 15 of the strikers had been
laid off, the Company would enable the affected employees to
obtain such assistance. On February 27, Gonzalez instructed
Juarbe to prepare a letter informing the Union that the 15 em-
ployees were being laid off. Juarbe, prepared the letter, dated
February 27, in which he stated that the layoff was “due to eco-
nomic reasons and as a result of a substantial decrease in produc-
tion and sales.” The decision about which employees were se-
lected for the layoff was made in conformity with procedures in
the CBA. At the time of this layoff, the Respondent was in the
midst of what Gonzalez described as “a major expansion,” but
the record does not show whether this expansion had created, or
would create, jobs comparable to those being eliminated as the
result of modernization of the Amelia and Corujo facilities.
Regarding the replacement of the 26 unit employees on April
16, the record shows the following. After the strike commenced,
the Respondent obtained replacement workers through a tempo-
rary agency. Initially, the Respondent did not hire the replace-
ments as its own employees. Instead the replacements, while
providing services to the Respondent, were directly employed by
the temporary agency. This arrangement continued through
April 16, 2002. On April 17, 2002, the Respondent hired the
replacement workers as employees of the Company. On that day
the replacement workers completed probationary period em-
ployment contracts with the Respondent that stated, “On this date
I have been hired to carry out work . . . subject to a probationary
period.” Twenty-five individuals completed these probationary
period contracts on April 17. At the time that the replacements
began the probationary periods, the Respondent informed them

14 Gonzalez testified credibly that, during contract negotiations in
2001, he told the union committee that the Respondent planned to
further reduce the size of the staff. He stated that the union committee
showed no interest in discussing that issue, but rather focused on nego-
tiating the compensation and benefits under a new contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD326
they were being offered permanent positions, but had to complete
probation.15 For some of the replacements, the probationary
period was 45 days and expired on May 31, 2002, and for others
it was 90 days and expired on July 17, 2002. The Respondent
issued identification cards to these employees for the first time on
April 17, at the start of the probationary period. After receiving
the April 16 letter, J. Figueroa wrote to the Respondent to oppose
the permanent replacement of unit employees and request a meet-
ing on the matter.
J. Union’s Unconditional Offer to Return to Work16
The parties subsequently engaged in extensive correspondence
regarding the striker’s possible return to work, and the substance
of this correspondence must be recounted briefly. By letter dated
June 26, 2002, A. Figueroa, on behalf of the Union, informed
Juarbe that the employees were “available to immediately return
to work under the same conditions already negotiated.” On July

15 Juarbe, the Respondent’s human resources director, testified that
the replacements were informed they were being hired as permanent
employees subject to the completion of a probationary period. The
General Counsel questioned Juarbe about a portion of an affidavit he
gave to the Board, in which he stated that the replacements were “not
told that they were permanent.” Tr. (II) 195. Based on other portions
of the affidavit, and the testimony of Juarbe, I understand the portion of
the affidavit referenced by the General Counsel to mean only that the
employees were not notified at the conclusion of their probationary
period of the resulting change in their employment status to “perma-
nent” in the sense of no longer being probationary. Tr. (II) 192–196,
278–281, 284–286. I conclude that Juarbe’s affidavit is not inconsis-
tent with his testimony that the replacements were informed that the
April 17 contracts were for permanent employment subject to the com-
pletion of a probationary period.
16 The Respondent argues that the complaint did not provide it with
adequate notice that the General Counsel intended to allege that the
Union made an unconditional offer to return to work and that the matter
has not been fully and fairly litigated. R. Br. (II) at 26. I reject this
contention. There is no requirement that the complaint list all the spe-
cific evidence that the General Counsel intends to introduce at trial.
See American Newspaper Publishers Assn. v. NLRB, 193 F.2d 782, 800
(7th Cir. 1951) (“The Act does not require the particularity of pleading
of an indictment or information, nor the elements of a cause like a
declaration at law or a bill in equity. All that is requisite in a valid
complaint before the Board is that there be a plain statement of the
things claimed to constitute an unfair labor practice that respondent
may be put upon his defense.”), affd. 345 U.S. 100 (1953), and Board’s
Rules and Regulations, Rule 102.15 (Complaint “shall contain . . . (b) a
clear description of the acts which are claimed to constitute unfair labor
practices, including, where known, the approximate dates and places of
such acts and the names of Respondent’s agents or other representatives
by whom committed.”) The complaint in this case alleged that the
Respondent violated the act by, inter alia, failing to offer the union
members the “positions occupied by them or substantially equivalent
positions,” and by reducing their wages when they returned to work
after the strike.” The Respondent not only should have recognized, but
clearly did recognize, that the facts relating to the Union’s offer to
return were relevant to these allegations and were being litigated.
Indeed, numerous letters going to the issue of the Union’s uncondi-
tional offer to return were introduced into evidence and counsel for
both the General Counsel and the Respondent elicited testimony re-
garding the matter. The question of whether the Union made an un-
conditional offer to return to work was fully and fairly, indeed exten-
sively, litigated, in this proceeding.
3, Juarbe responded that the parties had a dispute about what
terms they had negotiated for a new collective-bargaining agree-
ment, and asked the Union to state in detail what it meant by “the
same conditions already negotiated.” By letter dated July 10, A.
Figueroa clarified that the employees were “available to work
without condition” and that the Union was not requiring that the
Respondent accept the Union’s proposed CBA as a prerequisite
for their return to work. Now Juarbe shifted his stance, no longer
claiming the question was one of better defining the Union’s
offer to return, but rather stating, “As you are aware, [the strikers]
were permanently replaced, consequently, there are no vacant
positions available at this time.” In a letter dated July 18, A.
Figueroa contended that the strike was “not an economic one,”
and requested “the reinstatement, without conditions, of all the
unionized employees.” In early August, the Union filed a charge
alleging that the company had unlawfully refused to reinstate the
former strikers despite their unconditional offer to return to work.
In a letter to the Respondent, dated August 5, 2002, the Union
stated, “We again reiterate to you our reinstatement offer, without
employment conditions.” When Juarbe responded on August 8,
he no longer claimed that there were no vacant positions, but
rather stated that reinstatement of the former strikers was contin-
gent on the parties signing a new collective-bargaining agree-
ment. In a separate letter, dated August 13, Juarbe stated that he
understood the Union had “desisted” from its position that the
employees would not return to work until the resolution of con-
troversies “invol[ving] the particular employees and other is-
sues.” Juarbe went on to state that although “the employees have
been permanently replaced . . . some vacancies have arisen that
we will cover by making the pertinent offer to the employees.”
The letter concluded, that all the “affected employees” should
come to the Respondent’s offices 2 days later on August 15,
2002, at 2 p.m., for the purpose of “making a determination about
the persons entitled to this, those who are available and/or inter-
ested.” The Union received this letter at 2:50 p.m. on August 13.
In a letter to Juarbe dated August 15, A. Figueroa stated the union
president and others were available to meet regarding reinstate-
ment on August 20 at 9:30 a.m. in the Union’s offices. In the
letter, A. Figueroa also denied that the Union had conditioned its
return to work on the resolution of the controversies referred to
by Juarbe and stated that “all the workers, which make up the
appropriate unit . . . reiterate an unconditional reemployment
offer.” None of the employees appeared at the Respondent’s
offices on August 15. On the same day, and apparently before
receiving A. Figueroa’s letter, Juarbe sent a letter to the Union
stating that the Respondent was offering employment to the 15
strikers who it had laid off in February 2002, and inviting them to
appear at the company’s offices on August 22 at 9 a.m. Juarbe
included letters to the 15 laid-off employees stating that “there
were some vacant positions for which you can qualify.” The
Respondent did not inform the Union or the former strikers what
type of work was being offered, or what the terms and conditions
of employment would be. However, it did inform the employees
that if they did not appear “it will be understood that you are not
interested in working and waive the rights granted to you by
[Puerto Rican law].” A. Figueroa responded with a letter, dated
August 20, in which he stated that “all the employees, the 15
discharged employees of February 27, 2002, as well as the ones
PAN AMERICAN GRAIN CO. 327
you allegedly substituted on April 16, 2002, are interested in
working.”
On the morning of August 22, the former strikers appeared at
the Respondent’s offices,17 along with both J. Figueroa and A.
Figueroa. As of that time, the Respondent had not told the for-
mer strikers what positions the Company was offering them,
what shifts they would be working, or what their pay and other
terms and conditions of employment would be. Juarbe testified
that the Respondent intended to discuss these matters with the
employees once they entered the facility.18 After the strikers had
assembled in front of the facility, Juarbe and Curet came out of
the office and approached them. Without preliminary discussion,
Juarbe began calling out the names of employees and stated that
those whose names he called could enter the facility. J. Figueroa
interrupted and told Juarbe that he should not talk directly to the
employees, but to J. Figueroa himself as the employees’ repre-
sentative. A. Figueroa told Juarbe that the Respondent had pre-
viously been notified by letter that J. Figueroa would be present
to represent the former strikers. Juarbe and Curet left for a time,
and then returned with Alberto Fernandez, the Respondent’s in-
house counsel. Juarbe stated that he had looked for a letter re-
questing that J. Figueroa be permitted to enter the facility, but
had not found one. Fernandez directed the employees to enter
and Juarbe said that A. Figueroa would be permitted to come in
with them, but that J. Figueroa would not be.19 A. Figueroa said
that J. Figueroa, as union president, needed to be present. J. Fi-
gueroa thought his presence was necessary so that he could rep-
resent the employees when they met with the Respondent about
their re-employment. In the end, the Respondent persisted in its
refusal to allow J. Figueroa to enter the premises and none of the
employees entered without him. J. Figueroa had previously indi-
cated to the Respondent that he was willing to discuss the reem-
ployment of the former strikers with company officials some-
where other than the Respondent’s facilities, but the Respondent
rejected the Union’s request to have the meeting at the Union’s
facility, ostensibly because of the Respondent’s concerns for the
safety of its officials.
In a letter to A. Figueroa, dated September 4, Gonzalez stated:
With regard to the ex-employees that you represent;
they opted not to return to work on August 15, 2002, as well

17 All of the former strikers were present except for Policarpio Gon-
zalez, who had been excused.
18 According to Gonzalez, it had been the Respondent’s intention on
August 22 to offer the 15 previously laid-off individuals employment
under the same terms and conditions as they had before the strike. If
this was Gonzalez’ intention, it was not communicated to the Union as
of the time of the August 22 incident.
19 The Respondent has refused J. Figueroa admittance to its facilities
for several years. The Respondent’s position is that this exclusion is
justified because J. Figueroa’s past behavior demonstrates that he is a
security risk. In a decision issued on May 23, 2003, Administrative
Law Judge George Aleman found, inter alia, that the Respondent’s
exclusion of J. Figueroa from its facilities violated Sec. 8(a)(5) and (1)
of the Act. Pan American Grain Co., Inc., JD–59–03, 2003 WL
21251892 (Division of Judges). The General Counsel and the Respon-
dent have both filed exceptions to elements of Judge Aleman’s deci-
sion, and these exceptions were pending before the Board as of the date
of this decision.
as on August 22, 2002. That is resignation from work. The
company has accepted this resignation and has offered and it
is offering those jobs to other individuals in a permanent
manner.
The record shows that the Respondent has subsequently hired at
least six new production employees to do bargaining unit work at
the Amelia facility20 where many of the former strikers worked
prior to the start of the strike.
K. Former Strikers Return to Work
In a letter dated October 8, the Respondent informed the for-
mer strikers and the Union that the Respondent had openings for
which they would be considered if they presented themselves for
work. The Union and the Respondent corresponded regarding
the openings and the Union tried unsuccessfully to arrange a
meeting with Gonzalez to discuss the details of re-employment.
By letter dated October 26, the Respondent again invited the
former strikers to present themselves for possible employment.
As with previous letters from the Respondent on the subject, this
letter did not state which employees would be rehired, the posi-
tions to which they would be assigned, or the terms and condi-
tions of employment. In the letter, the Respondent set a deadline
of November 2, for the former strikers to appear. On October 28,
J. Figueroa informed the Respondent that all the strikers wanted
to return to work, and would appear on October 29 at 8 a.m. to
request reinstatement.
On October 29, the former strikers appeared at the Respon-
dent’s offices, this time without J. Figueroa. The Respondent
interviewed the former strikers and had them complete employ-
ment applications. Twenty-five or twenty-six of the former strik-
ers were re-employed that day. The rest of the former strikers
who were still interested in working for the Respondent were
rehired in early November. Although some of these individuals
had worked for the company for as many as 20 years, all were
now treated as new employees and required to complete proba-
tionary periods. Prior to the strike, the Respondent paid these
individuals wages ranging from $6.15 to $9.31 per hour.21 When
they returned to work after the strike, the former strikers were all
were paid $5.15 an hour, the lowest wage permitted under the
CBA, and one that could only be paid to “new” employees. This
wage was well below the minimum the Respondent was permit-
ted to pay nonprobationary employees in both the skilled and

20 The six employees are: Pedro Bruno, Melvin Diaz, Luis Ledesma,
Enrique Maysonet, Jesus Prieto, and Edwin Santana.
21 My findings regarding the prestrike wage rates of the former strik-
ers are based on a summary exhibit that the General Counsel prepared
from information contained in personnel files produced by the Respon-
dent in response to the General Counsel’s subpoena. See GC Exh. 89.
The Respondent argues that this exhibit should have been excluded as
hearsay. R. Br. (II) at 2–3. I am surprised that the Respondent would
make this argument since it stated at trial that it did not object to the
exhibit as long as certain information pertaining to matters other than
wages was stricken from it. That information was stricken from the
exhibit at trial, and I did not consider it in making my findings in this
proceeding. The Respondent does not contend that any of the wage
information contained in this summary of the subpoenaed material was
not accurate, much less present any testimony or evidence that it was
inaccurate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD328
unskilled classifications under the expired CBAs. When these
“new” employees completed their probationary periods, the Re-
spondent continued to pay them $5.15 an hour, even though the
CBA mandates that wage increases of at least $1 an hour will be
granted once the probationary period is completed.22 Since the
start of the strike, the Respondent has hired a number of new
employees who were not former strikers. All of these nonstrikers
were started at wages of at least $5.50 and as much as $7 per
hour. Of the employees hired after the start of the strike, only the
former strikers were paid the lowest wage stated in the CBA.
After the Union made its unconditional offer to return to work,
the Respondent assigned the overwhelming majority of the 40
returning strikers to its Arroz Rico facility, where none of them
had been working immediately prior to the strike.23 During that
period, the Respondent hired at least six individuals who had not
participated in the strike to perform bargaining unit work at the
Amelia facility—the prestrike work location for more than half of
the former strikers.
About 11 of the returning strikers were assigned to the same
shift as they worked immediately before the strike.24 Eight others
have been assigned to more than one shift since returning, but
have worked at least part of the time on their prestrike shift. Both
before and after the strike, the majority of the employees at issue
were assigned to the day shift, with most of the others assigned to
the evening shift. As was the case before the strike, only a small
number of the at-issue employees worked on the night shift after
the strike. One employee, Carlos Fernandez Centeno, filed a
grievance complaining about his post-strike shift assignment.
Before the strike Fernandez worked from 7 a.m. to 3 p.m., but
after the strike he was assigned to work from 2 to 10:30 p.m.
Almost without exception, the Respondent did not reinstate the
former strikers to their prestrike positions. This was true even
when there was an opening for that returning striker in his pre-
strike position.25 Before the strike, most, if not all, of the at-issue

22 Art. XVII of the CBA states: “The new employees will start at
$5.15 per hour and after their regular probationary period of ninety (90)
days they will then receive the salary according to the classification in
which they are performing.” The article also sets forth the wages ap-
plicable to the various classifications—the lowest of which is $6.15 per
hour.
23 One employee, Alberto Ortiz Serrano, testified that prior to the
strike he was working at an annex near the Arroz Rico facility, but the
evidence suggests that this was not part of the Amelia facility for pur-
poses of collective bargaining. Another employee, Angel Granado, had
worked at the Arroz Rico facility in the year 2000, but it appears he
was working at the Amelia facility when the strike commenced.
24 In this group I have included not only employees who worked pre-
cisely the same hours before and after the strike, but also those who
worked the same general shift—for example, the “night shift.” The
record indicates that the Respondent has three shifts: a day shift that
usually runs from 7 a.m. to 3 p.m., although in some assignments it
starts as early as 5:30 or 6 a.m. and ends earlier than 3 p.m.; an evening
shift that starts somewhere between noon and 3 p.m., and ends between
10 p.m. and midnight; and, a night shift that starts between 10 and 11
p.m., and ends between 6 and 7 a.m.
25 Former striker Omar Maysonet was working as a bag filler imme-
diately before the strike. After the strike, the Respondent assigned
Maysonet to a position as a stevedore, at the same time that it assigned
former striker Isaias Rivera Rodriguez, who had been a batcher/mixer
before the strike, to the bag filler position. Former striker Daniel Cruz
employees were in one of the two “skilled” classifications and
held positions that generally required substantial skills. The posi-
tions that these individuals had held before the strike included
“electrician,” “mechanic,” “welder,” “pellet mill operator,” “in-
gredients receiver/miller,” “mixer,” “batcher,” “heavy equipment
operator,” “bag filler,” “sewer,” and “truck loader.”26 By-and-
large, the primary duties of these positions required rather limited
physical exertion. Many of the employees would operate auto-
mated machinery through the use of buttons, pedals, or similar
controls, and/or would watch to make sure that the machine was
operating properly or producing the expected grade of material.
The equipment operated by these employees included both sta-
tionary machinery and mobile units such as loaders, and forklifts.
In some instances employees were required to look into silos or
tanks to monitor the levels of raw material or product. The em-
ployees working as mechanics provided preventive maintenance
and repaired broken equipment, and those working as welders
installed new equipment, mended ruptures in metal tanks, and
made other repairs. Electricians repaired and maintained the

Suarez was a forklift operator immediately before the strike. After the
strike, the Respondent assigned Cruz to a position as a sewer, at the
same time that it assigned former striker Luis Montanez Cintron, who
was a batcher/mixer before the strike, to a position as a forklift opera-
tor.
26 The Respondent contends that employees did not work in specific
positions and that the company used them to perform whatever tasks it
deemed necessary. The Respondent claims that, before the strike, none
of the employees were employed in specific positions such as “welder,”
or “mechanic,” or “pellet mill operator,” and so on, but only as produc-
tion employees classified as skilled-a, skilled-b, or unskilled, depending
on their level of skill. I reject the Respondent’s contention. Not only
did the employees who testified provide extensive and mutually cor-
roborative testimony that they had specific positions before the strike,
but a number of the Respondent’s own officials referred to the former
strikers using the same position titles identified by the employees. See,
e.g., Tr. (II) 3145 and 3150 (supervisor states that Luis Montanez was
a “mixer”), Tr. (II) 3165–3166 (supervisor states that Ruben Baez was
an “electrician”), Tr. (II) 3201 (supervisor states that Luis Marrero’s
position was “mechanic”), Tr. (II) 3302 (maintenance manager states
that William Gomez was a “welding mechanic”), Tr. (II) 3358 (mainte-
nance manager states that Policarpio Gonzalez “was the batcher for the
second shift”), Tr. (II) 1153 (human resources director admits that
Daniel Castro was a “welder”). Under questioning, Juarbe conceded
that “the position” of welder existed with the Respondent before the
strike. Tr. (II) 1153. The record also contains numerous documents in
which the Respondent referred to the positions occupied by employees.
For example, a letter from Juarbe, dated February 27, 2002, stated that
the Company was laying off employees because a total of 15 “posi-
tions” were being eliminated. The letter then enumerated the positions,
which included, inter alia, “Welders four (4) positions,” “A-Skilled-
Electrician,” “A-Skilled Welder,” “A-Skilled Buhler Pellet Mill Opera-
tor,” “A-Skilled-Electrician” position,” and “A-Skilled Mechanic. GC
Exh. 33. The record also includes copies of the identification cards that
the Respondent issued to a number of the at-issue employees before the
strike, and these identify those workers by the positions of “mechanic”
and “welder.” GC Exhs. 100, 104, 111, and 114. Other documents
created by the Respondent also refer to employees occupying specific
positions. See, e.g., GC Exhs. 98 and 99. In light of the record evi-
dence, I consider the Respondent’s contention that the employees did
not have “positions” before the strike to be preposterous. The fact that
the Respondent’s officials insisted on pressing this contention continu-
ally throughout the hearing does nothing to bolster their credibility.
PAN AMERICAN GRAIN CO. 329
Respondent’s electrical equipment, such as electric motors and
magnetic motors. In addition to these duties, the skilled employ-
ees were routinely responsible for performing cleaning in their
work areas that was incidental to the tasks of their positions. The
Respondent would also intermittently call upon these employees
to perform duties other than those associated with their specific
positions. These duties could sometimes be more demanding
from the point of view of physical exertion or working environ-
ment or both. Before the strike, some of the employees were
required to perform duties: at substantial heights, while exposed
to the elements, in confined spaces, around hot machinery, and in
the presence of excessive dust and/or fumes. However, during
their regular shifts these employees spent most, and in some
cases essentially all, of their working time performing the less
onerous duties associated with their specific positions.
After the strike, the employees were generally assigned to per-
form work that involved considerably greater physical demands
than the positions they occupied prior to the strike. For example,
immediately after the strike at least 12 of the employees were
assigned to work full time inside a cement grain silo where they
shoveled corn and scraped away corn that had become stuck to
the inside walls. This was physically grueling work, in a hot,
poorly lit, environment where the air was foul smelling and ex-
tremely dusty. The silo was approximately 100 feet high and 50
feet in diameter and the only ventilation was provided through
the silo’s one small door. The employees were able to work
continuously in this environment for no more than 10 to 30 min-
utes at a time before they would have to exit and recover in the
fresh air.27 A number of the employees credibly testified that
they developed health problems as a result of this work. In the
past the Respondent had not required its own employees to per-
form this unpleasant work, but rather had used employees from a
temporary help agency.
After working at the silo, the same group of employees was
assigned to clean the bilge, or cellar, of a shipping vessel that the
Respondent kept at a dock and used as a warehouse. The bilge
was between 50-and 100-feet deep and its floor was very muddy.
The environment was dusty and there was an unpleasant odor due
to the length of time that food material had been stored there.
The employees used shovels to pile the food material on top of
the water that had collected in the bottom of the bilge. Then they
shoveled this material into drums that were removed by a crane.
Afterwards they cleaned interior surfaces of the silo using shov-
els, brooms, screwdrivers, and pressure hoses. At various points,
employees would clean with a hose while standing on a metal
platform that was hung from a crane and suspended at heights of
more than 50 feet over the bilge’s bottom. The top of the bilge
was mostly open, providing ventilation, but the employees were
required to work in some areas associated with the bilge that
were poorly ventilated. Cleaning the bilge in this manner was
not routine work for the company—it had been performed only
once during a 4-year period.
The Respondent eventually assigned most of the returning
strikers, including those initially sent to the silo and the bilge, to
work on the packing lines at the Arroz Rico facility. A smaller

27 In addition to these brief breaks, the employees generally received
the usual breaks available to other employees.
number were assigned to work at the Amelia facility’s packing
line. The Arroz Rico facility was a clean, relatively dust-free,
operation, as compared to the Amelia and Corujo facilities, which
were quite dusty. Much of the work at the packing lines was
“stevedoring”—i.e., manually taking sacks from an assembly line
and placing them on portable platforms or “pallets.”28 The sacks
weighed between 20 and about 100 pounds29 and the work was
repetitive and more or less continuous with the exception of
scheduled break periods. On some of the production lines the
sacks came to the stevedores shortly after a packaging process
that involved the application of heat, and a number of the em-
ployees found the sacks uncomfortably hot to handle. Other
work that was done on these lines included the filling and sewing
of the sacks. To fill a sack, the employee placed it empty on a
machine that held it in place while the product was poured in.
Then the employee let the bag drop onto an assembly line, tak-
ing care that it was properly positioned so as not to spill. An-
other employee then guided the sack through a machine that
automatically sewed it closed. On at least some of the packing
lines, the employees rotated through the three assignments—
filling, sewing, and stevedoring—over the course of the day.
After the strike, some of the employees were assigned for a
period of time to watch over the curved stretch of a conveyor
where bags of product were prone to get stuck. The employees
working there would manually move or adjust the bags when
there was a problem. Cesar Gonzalez Ocasio, one of the few
former strikers who were assigned to the Corujo facility after
the strike, was directed to work part of the day as a batcher, the
same position he had held prior to the strike at the Amelia facil-
ity.
The former strikers consistently testified that they preferred
their prestrike work to the work the Respondent assigned them
to perform after the strike. In most cases the former strikers
stated that they wanted to use the skills, experience and training
they had acquired for their prestrike positions. A number also
testified that they preferred the physical demands of their pre-
strike positions because they involved less exertion or were
carried out in a less challenging physical environment.
L. Union’s Information Request
On August 15, 2002, Juarbe sent letters to 15 of the former
strikers, stating that the Respondent had eliminated their posi-
tions in February 2002, but was now prepared to offer them
work for which they were qualified. In a letter dated August
20, 2002, A. Figueroa responded that the Union rejected the
Respondent’s claim that the positions had actually been elimi-
nated, and argued that the employees were entitled to rein-
statement in their previous positions. In the same letter, A.
Figueroa requested information that he said the Union needed
“in order for us to prepare” for a meeting with the company
regarding the dispute. The request identified five items, only
one of which is at issue here. That item read as follows: “We
want you to inform us the names, jobs and positions that are

28 This work is also referred to as “palletizing.”
29 Some of these sacks actually were comprised of many smaller
sacks that were packaged together.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD330
held by the employees that you have working at the Amelia,
Corujo, Muelle and Anexo Romana plants.”
The Respondent’s president, Gonzalez, responded to A. Fi-
gueroa’s request in a letter dated August 23, 2002. In response
to the request for the names, jobs and positions of current em-
ployees, Gonzalez stated, “I do not have authorization from
those persons to disclose their names.”
In a letter from J. Figueroa to Gonzalez, dated August 30, J.
Figueroa argued that the Respondent was legally required to
provide the Union with the names of the employees working at
the facilities listed in the request. Subsequently, by letter dated
November 27, the Respondent provided the Union with the
names and duty stations of the employees. The letter stated that
each of the employees worked in “production,” but did not state
their positions or specific duties. The Respondent had not pro-
vided any other information in response to this item in the re-
quest as of the time of trial.
M. Complaint Allegations
The complaint alleges that since about December 19, 2001,
the Respondent unilaterally changed existing terms or condi-
tions of employment in violation of Section 8(a)(5) and (1) by
beginning to require its employees to sign for receipt of Satur-
day work schedules that stated employees would be subject to
discipline for failure to comply with the schedule. In addition,
the complaint alleges that the Respondent violated Section
8(a)(3) and (1) on about January 4, 2002, when it suspended six
employees who refused to comply with the new requirement.30
The complaint also alleges that on January 8 or 9, 2002, the
Respondent violated Section 8(a)(1) by making threatening
statements and by disparaging the Union. The complaint alleges
that in January 2002 the Respondent violated Section 8(a)(3)
and (1) of the Act by withholding Garcia’s vacation benefits
and by discontinuing payments for the medical plans of Ross-
ner and Ortiz, because the employees engaged in protected
activity. The complaint further alleges that the discontinuation
of the medical plan payments for Rossner and Ortiz violated
Section 8(a)(5) and (1) because the Respondent did not first
bargain with the Union over the change. The complaint alleges
that the Respondent violated Section 8(a)(3) and (1) of the Act
when it terminated the employment of 15 individuals on about
February 27, 2002,31 and 26 employees on about April 16,
2002,32 because the employees engaged in protected activity.

30 The six employees are: Andres Agosto, Ramon Alicea, Nelson
Sandoval, Mariano Pagan, Policarpio Gonzalez, and Ernesto Martinez.
31 The individuals alleged to have been affected by the February 27
action are: are Ramon Mojica-Santiago; Angel Granado-Ortiz; Cesar
Gonzalez-Ocasio; Luis Marrero Ramos; Armando Torres-Garay; Hec-
tor Figueroa-Martinez; Domingo Garcia; Ruben Baez-Garcia; Marcelo
Franco Villegas; Daniel Castro Rafa; Jorge Ortiz-Tavarez; Alberto
Franco-Mateo; Ernesto Martinez-Martinez; Miguel Maldonado Molina;
and Policarpio Gonzalez Martinez.
32 The individuals alleged to have been affected by the April 16 ac-
tion are: Daniel Cruz Suarez; Carlos Fernandez Centeno; Miguel Mer-
cedez Sanchez; Luis Montanez Cintron; Genaro Ortiz Alvarez; Omar
Maysonet Merced; Pedro Reyes Vargas; Isaias Rivera Rodriguez;
Edwin Roman Herrera; Andres Agosto Flores; Ramon Alicea Garcia;
Mariano Pagan Cruz; Tony Melendez Pacheco; Heriberto Olivero
Negron; Bill Montes Rodriguez; Nelson Sandoval Leon; Carlos de los
The complaint also alleges that the terminations violated Sec-
tion 8(a)(5) and (1) of the Act. The complaint further alleges
that since the Respondent reinstated the terminated strikers on
or about October 29, 2002,33 it has discriminated against them
in violation of Section 8(a)(3) and (1) by: not offering them the
positions they previously occupied or substantially equivalent
positions; imposing on them more onerous and rigorous work-
ing conditions; assigning them to less desirable work shifts;
and, reducing their wages. The complaint alleges that the Re-
spondent dealt directly with unit employees in violation of Sec-
tion 8(a)(5) and (1) in March and April 2002 by soliciting em-
ployees to accept the Respondent’s proposal for a collective-
bargaining agreement and by seeking a response from employ-
ees to the proposal. Finally, the complaint alleges that the Re-
spondent failed to bargain in violation of Section 8(a)(5) and
(1) by refusing to comply with the Union’s August 20, 2002
information request for the names and positions of the Respon-
dent’s employees at Amelia, Corujo, Muelle, and Anexo Ro-
mana.
Analysis
Requirement that Employees Sign Saturday
Work Schedules
Complaint II alleges that the Respondent violated Section
8(a)(5) and (1) by the following conduct:
Since about December 19, 2001, Respondent has changed ex-
isting terms and conditions of employment by unilaterally,
and contrary to past practice, requiring its employees to sign,
as acknowledging receipt of the same, a copy of the work
schedule for Saturday, December 22, 2001, and Saturday, De-
cember 29, 2001, which warned employees that failure to
comply with the schedule would subject employees to disci-
pline.
It is not clear whether this allegation is simply that the Respon-
dent unlawfully began requiring employees to sign Satur-
day/overtime schedules, or whether the allegation is also meant
to raise an issue regarding the policy that discipline would at-
tach for failure to work the overtime hours indicated. The Gen-
eral Counsel’s arguments at trial and briefs after trial do noth-
ing to clarify this question. Although I consider it dubious that
the latter issue was fully and fairly litigated, I will assume for
purposes of discussion that it is encompassed by complaint II
and was fully litigated.
An employer violates Section 8(a)(5) and (1) of the Act
when it unilaterally changes the wages, hours, or other terms
and conditions of employment of bargaining unit employees
without first providing the collective-bargaining representative
with notice and a meaningful opportunity to bargain. NLRB v.
Katz, 369 U.S. 736 (1962); Bryant & Stratton Business Insti-

Santos Robles; William Gomez Narvaez; Geovanni Perez Guadalupe;
Ismael Rivera Guadalupe; Ismael Rivera Delgado; Vincente Martinez
Canario; Angel Medina Vargas; Alberto Ortiz Serrano; Ivan Vazquez
Muniz; and Jose Rossner Figueroa.
33 The General Counsel is pursuing these allegations on behalf of all
of the former strikers, with the exception of Giovanni Perez Vallez,
who refused to return to work for the Respondent. GC Br. (II) at 2 fn.
1.
PAN AMERICAN GRAIN CO. 331
tute, 321 NLRB 1007 (1996); Mercy Hospital of Buffalo, 311
NLRB 869, 873 (1993); Associated Services for the Blind, 299
NLRB 1150 (1990). This is true even if at the time of the
change the collective-bargaining agreement between manage-
ment and the union has expired and a new agreement has not
been completed. Litton Financial Printing Div. v. NLRB, 501
U.S. 190, 198 (1991). The Board has made clear that in order
to constitute a unilateral change that violates the Act, the em-
ployer’s action must be a material, substantial, and significant
change that has a real impact on, or causes a significant detri-
ment to, the employees or their working conditions. Golden
Stevedoring Co., 335 NLRB 410, 415 (2001) (quoting Millard
Processing Services, 310 NLRB 421, 425 (1993)); Outboard
Marine Corp., 307 NLRB 1333, 1339 (1992), enfd. mem. 9
F.3d 113 (7th Cir. 1993); UNC Nuclear Industries, 268 NLRB
841, 847–848 (1984); and Peerless Food Products, 236 NLRB
161 (1978).
Regarding the requirement that employees sign the overtime
schedules to acknowledge their receipt, the record shows that
this was not a material, substantial, and significant change from
the Respondent’s past practice. The Respondent has a long-
standing practice of instructing employees to acknowledge
receipt of documents by signing either the document itself or a
separate acknowledgment form.34 The exhibits submitted in
this case include an array of documents that employees signed
for this purpose prior to the alleged unilateral change. It is not
a significant change, or even a change really, for the Respon-
dent to apply this general, facially benign, requirement to
documents that were being distributed for the first time, such as
the Saturday/overtime schedules.35 See, e.g., UNC Nuclear
Industries, supra at 847–848 (oral tests administered to unit
employees not an unlawful change where tests were merely an
extension of an existing program). The General Counsel does
not cite a single case in which imposition of a requirement that
employees acknowledge receipt of documents was found to be
a substantial enough change in working conditions to trigger
the obligation to bargain, much less any case in which the ap-
plication of an existing requirement of that nature triggered a
bargaining obligation simply because the specific document
involved was being distributed for the first time. I conclude
that the Respondent did not make a unilateral change in viola-
tion of Section 8(a)(5) and (1) by applying the existing ac-
knowledgment requirement to the Saturday/overtime schedules.

34 The record shows that supervisors sporadically failed to enforce
this policy. Enforcement of an existing rule does not constitute a uni-
lateral change simply because enforcement was somewhat lax or inat-
tentive in the past. Rust Craft Broadcasting of New York, 225 NLRB
327 (1976).
35 The record indicates that, in the past, the Respondent had deter-
mined who would perform Saturday/overtime work after a process of
consultation with union officials and/or employees. The General Coun-
sel does not allege that the Respondent made an unlawful unilateral
change by distributing schedules that the Respondent generated without
such consultation. As a practical matter, the Respondent did not use the
schedules that it created without union/employee input, but rather, as in
the past, followed schedules that were arrived at through discussions
with the Union and employees.
The General Counsel cites authority for the proposition that a
change in an employer’s disciplinary system is a mandatory
subject of bargaining. However, the General Counsel failed to
show the existence of an established past disciplinary practice
or understanding regarding overtime assignments that was
changed by the Respondent’s December 2002 admonition about
the consequences of failing to follow the overtime schedules.
Exxon Shipping Co., 291 NLRB 489, 493 (1988) (when alleg-
ing a unilateral change from an established past practice or
understanding, the General Counsel has the burden of demon-
strating the existence of the past practice or understanding),
Whirlpool Corp., 281 NLRB 17, 22 (1986). What evidence
there is in the record indicates that the admonition contained in
the December 2002 memorandums was consistent with the
Respondent’s prior pronouncements on the issue. More spe-
cifically, the Respondent’s employee manual states that “refus-
ing to work reasonable overtime” is an infraction subject to
progressive discipline including suspension and discharge. See
Chicago Tribune Co., 304 NLRB 495, 508–509 (1991) (not
unlawful unilateral change for employer to announce that em-
ployees who refuse to work overtime will be disciplined, where
agreement said that employees would work a reasonable
amount of overtime), enf. granted in part, denied in part 974
F.2d 933 (7th Cir. 1992).
Similarly, the General Counsel has not shown that the De-
cember 2002 memorandum resulted in a change in the way the
disciplinary policy regarding refusal to work overtime was
actually enforced.36

36 In its initial brief, the General Counsel also argues that the Re-
spondent unilaterally changed its disciplinary system in violation of
Sec. 8(a)(5) and (1) of the Act by initiating a practice of disciplining
employees who refused to sign to acknowledge receipt of Satur-
day/overtime work schedules. This allegation is not encompassed by
any reasonable reading of the complaint. Instead, the complaint alleges
that the Respondent unilaterally imposed the signing requirement itself,
and arguably the requirement that employees comply with the overtime
schedule. The General Counsel did not seek to amend the complaint at
hearing to include an allegation that the Respondent unilaterally
changed its disciplinary policy relative to the requirement that employ-
ees sign for receipt of documents, nor did it mention this allegation
during its opening argument. I find that this allegation was not fully
and fairly litigated and I decline to reach it. Cibao Meat Products, 338
NLRB 934, 936 (2003); Q-1 Motor Express, Inc., 308 NLRB 1267,
1268 (1992), enfd. 25 F.3d 473 (7th Cir. 1994), cert. denied 513 U.S.
1080 (1995). At any rate, were I compelled to decide the issue on basis
of what evidence there is in this record, I would almost certainly rule in
favor of the Respondent. The General Counsel has failed to demon-
strate that the Respondent departed from any previously established
disciplinary practice or understanding when it suspended employees
who refused its instruction to acknowledge receipt of documents. The
evidence does show several instances in which a document was not
signed by the employee/recipient and yet the recipient was not disci-
plined. However, it was not shown that in any of those instances the
employee refused to sign in the face of a direct order from the Respon-
dent to do so. The evidence showed that supervisors sometimes failed
to follow the policy of instructing employees to sign documents that
were handed to them. It is one thing when an employee does not ac-
knowledge receipt of a document because the employer neglected to
request that he or she do so, and quite another for an employee to refuse
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD332
For the reasons discussed above, I conclude that the Respon-
dent did not violate Section 8(a)(5) and (1) by requiring em-
ployees to sign to acknowledge receipt of Saturday/overtime
schedules, and by warning employees that discipline would
result from failure to comply with the schedule. Those allega-
tions should be dismissed.
Complaint II also alleges that on about January 4, 2002, the
Respondent discriminatorily suspended employees Andres
Agosto, Ramon Alicea, Policarpio Gonzalez, Ernesto Martinez,
Mariano Pagan, and Nelson Sandoval, in violation of Section
8(a)(3) and (1) for failure to obey an instruction to sign, and
comply with, the Saturday/overtime schedules distributed on
December 22 and 29. The General Counsel’s sole argument on
this score is that discipline imposed pursuant to an unlawful,
unilaterally imposed, rule is itself unlawful. This is true. See
Aldworth Co., Inc., 338 NLRB 137, 147 fn. 48 (2002). How-
ever, as discussed above, the rule pursuant to which the Re-
spondent is alleged to have issued the suspensions was not
shown to have been unlawfully imposed. Moreover, the Gen-
eral Counsel did not introduce evidence that other employees
who refused to follow similar orders were treated better, or
otherwise show that union activity, rather than insubordination,
was the reason for the suspensions.
For the reasons discussed above, I conclude that the allega-
tion that the Respondent violated Section 8(a)(3) and (1) by
suspending Andres Agosto, Ramon Alicea, Policarpio Gon-
zalez, Ernesto Martinez, Mariano Pagan, and Nelson Sandoval
should be dismissed.
Statements by Gonzalez to Betancourt and Maldonado
The General Counsel alleges that the statements Gonzalez
made to Betancourt and Maldonado on January 8 or 9 tended to
restrain, coerce, and interfere with employees in the exercise of
their rights under Section 7 of the Act. As discussed above,
during the first days of the strike, Gonzalez called Betancourt
and Maldonado to his office and stated that he would take ad-
verse actions against the strikers unless they abandoned the
strike. He also referred to the strikers using disparaging names
and stated that he would never reach an agreement with the
Union president. Had these statements been made to the strik-
ing employees of the company, I would have little difficulty
finding that the General Counsel established a violation of Sec-
tion 8(a)(1). See, e.g., Bestway Trucking, Inc., 310 NLRB 651,
671 (1993) (threats of job loss unlawful), enfd. 22 F.3d 177
(7th Cir. 1994); Baddour, Inc., 303 NLRB 275 (1991) (threats
that strikers would lose their jobs unlawful). For the reasons
discussed below, however, I conclude that both Betancourt and
Maldonado were independent contractors, not employees.
Moreover, neither Betancourt nor Maldonado was shown to
have served as a conduit for conveying the threatening and
disparaging comments made by Gonzalez to individuals who
were employees. Therefore, I conclude that the General Coun-
sel has failed to establish that the statements violate Section
8(a)(1).

the employer’s explicit instruction that he or she acknowledge receipt
of a specific document.
The Board determines whether an individual is an employee
or an independent contractor by applying the common law
agency test and considering all aspects of the individual’s rela-
tionship to the employing entity. Roadway Package System,
326 NLRB 842, 849–850 (1998). Among the many factors that
the Board has considered in making this determination in the
cases of truckdrivers/owners are whether the individuals: per-
form functions that are an essential part of the company’s nor-
mal operations; receive training from the company; do business
in the company’s name with assistance and guidance from it;
are prevented from engaging in outside business; provide ser-
vices under the company’s substantial control; have substantial
proprietary interests beyond their investment in their trucks;
lack significant entrepreneurial opportunity for gain or loss;
leave their vehicles overnight with the company; are subject to
discipline by the company, Id. at 851–852; have control and
responsibility for their own employees; select and acquire their
vehicles; are responsible for the financing, inspection, or main-
tenance of the vehicles without involvement by the company;
are guaranteed minimum compensation by the company; are
required by the company to provide delivery services each
scheduled workday, Dial-A-Mattress Operating Corp., 326
NLRB 884, 891–892 (1998); make their own arrangements for
the parking and storage of the trucks when not in use; are free
to decide whether to make their trucks available to the company
on a particular day, Portage Transfer Co., 204 NLRB 787,
787–789 (1973); receive direction from the company regarding
the route to be used to a delivery point; are issued identification
cards by the company; National Freight, Inc., 146 NLRB 144,
146 (1964); operate trucks bearing the company’s name; con-
trol the means by which he or she achieves the company’s ends;
Deaton Truck Lines, Inc., 143 NLRB 1372, 1376–1378 (1963),
affd. 337 F.2d 697 (5th Cir. 1964), cert. denied 381 U.S. 903
(1965); and have social security or other taxes withheld from
their paychecks by the company; Bowman Transportation, Inc.,
142 NLRB 1093, 1096 (1963).
The record evidence, when considered through the prism of
these factors, overwhelmingly leads to the conclusion that
Betancourt and Maldonado performed their work for the Re-
spondent as independent contractors, not employees. Betan-
court and Maldonado operated their own businesses–
purchasing and maintaining their trucks, and obtaining their
trucking permits, all without involvement from the Respondent.
They had entrepreneurial opportunities that are beyond those
typically available to “employees.” For example, Maldonado
increased his revenue from the Respondent by purchasing a
total of four trucks, and hiring three employees of his own to
operate them. Betancourt and Maldonado were free to use their
trucks to transport materials for other companies if they wished.
They also bore certain risks of an entrepreneurial nature. For
example, Betancourt and Maldonado purchased fuel for their
trucks and the profits from their businesses could fluctuate
based on the price of fuel. The Respondent generally paid them
based on the weight of each load that they hauled, not based on
an hourly rate or a salary, and did not provide fringe benefits,
or deduct social security or income taxes from their paychecks.
Betancourt and Maldonado did not generally hold them-
selves out to the public at large as being associated with the
PAN AMERICAN GRAIN CO. 333
Respondent. The Respondent did not provide Betancourt or
Maldonado with company uniforms, and the Respondent’s
name and logo did not appear on their trucks. The Respondent
did not issue company identification cards to either Betancourt
or Maldonado, although such cards were issued to all produc-
tion employees. Betancourt, a witness for the General Counsel,
explicitly testified that he was an independent contractor, and
neither Betancourt nor Maldonado stated that they considered
themselves employees.
The view that Betancourt and Maldonado are not employees
is also supported by the fact that the delivery work they per-
form is not the essence, or an integral part, of the Respondent’s
business. Although like many companies, the Respondent ar-
ranges for the delivery of its products to customers, its primary
business is manufacture, processing, and sale, not delivery.
There is no allegation or evidence that the Respondent provides
delivery services to other companies, or transports anything
other than its own materials and products. Moreover, the Re-
spondent exercises minimal control over the manner in which
Betancourt and Maldonado carry out their work. The drivers
are not required to appear every day for work, or to continue
picking up and delivering loads throughout the day, and they
select their own routes to destinations. Betancourt and
Maldonado make their own arrangements for parking the trucks
when they are not in use. In order to transport the Respon-
dent’s materials and products, Betancourt and Maldonado are
required to make certain modifications to their trucks and to
refrain from carrying materials that could contaminate what
they are hauling for the Respondent. However, these limita-
tions are imposed by the Environmental Quality Board, not the
Respondent, and therefore, under Board precedent, are not in-
dicative of control by the Respondent. See Don Bass Trucking,
275 NLRB 1172, 1174 (1985) (requiring compliance with Gov-
ernment-imposed regulations does not constitute company con-
trol because such regulations constitute supervision by the
State, not the employer).
The General Counsel contends that Betancourt and
Maldonado should be considered employees because they
“work for the Respondent under vastly similar conditions as the
truck drivers in the case of Roadway Package Systems, Inc.,”
General Counsel’s Brief (I) at 10—a case in which the Board
found Roadway’s drivers to be employees. The General Coun-
sel’s characterization of the facts in Roadway as “vastly simi-
lar” to those at issue here is hard to understand. In truth, the
circumstances relating to drivers in the instant case are dissimi-
lar to those in Roadway Package in virtually all the respects
that the Board found most telling there. The first sentence in
the “analysis of factors” section of Roadway Package notes that
the drivers “perform functions that are an essential part of one
company’s normal operations,” and “constitute an integral part
of the company’s business.” That was the case for the truck
drivers in Roadway Package because the company’s business
was small package delivery. Obviously the work of truckdriv-
ers who make deliveries is the essence of the business of a de-
livery company. However, the Respondent in this case is not a
delivery company, but rather one whose essential business is
the manufacture, processing, and importation of grain products.
The next fact relied on by the Board in Roadway Package was
that the company provided training to the drivers. This, too, is
unlike the situation here; neither Betancourt nor Maldonado
received training from the Respondent.
In Roadway Package, the Board noted that “the driver’s
connection to and integration in Roadway’s operations is highly
visible and well publicized.” The Board based this conclusion
on the facts that the company required drivers to wear a uni-
form approved by the company, drive identical vehicles that
were designed and built according to the company’s specifica-
tions, and display the company’s logo and distinctive styling on
their vehicles. Could the facts involved in the instant case be
any more different? The Respondent here does not provide any
type of uniforms or identification to Betancourt and Maldonado
and their trucks do not carry the Respondent’s logo, much less
its distinctive styling. The Respondent has no part in the design
of the trucks and does not require that a specific model be used.
The differences between the relevant facts in Roadway
Package and the instant case do not end there. The employer in
Roadway Package provided off-hours parking for the trucks,
offered maintenance assistance, and left little room for drivers
to influence their income level through their own efforts or
ingenuity. As discussed above, the Respondent in the instant
case did not provide off-hours parking, did not assist drivers
with truck maintenance, and did allow the workers significant
opportunity to increase their income level, as Maldonado did by
obtaining multiple trucks and hiring other drivers to work for
him. The Board noted in Roadway that the company had cre-
ated significant barriers to the drivers performing outside work.
By contrast, in the instant case there is no evidence that the
Respondent created such barriers.
The cases of Betancourt and Maldonado are much more
similar to the one in Dial-A-Mattress, where the Board found
that the owner-operators involved were not employees, but
rather independent contractors. As in the instant case, the
owner-operators in Dial-A-Mattress, had the opportunity to
make entrepreneurial profit, arranged their own training, hired
their own employees, operated as independent businesses, and
received no assistance from the company in the selection, ac-
quisition, or maintenance of their vehicles.
For the reasons discussed above, I conclude that Betancourt
and Maldonado were independent contractors rather than em-
ployees within the meaning of Section 2(3) of the Act.
In its initial brief, the General Counsel contends that Betan-
court and Maldonado communicated Gonzalez’threatening and
disparaging comments to the striking employees. The state-
ments to nonemployees Betancourt and Maldonado arguably
could be a violation if Gonzalez was using those individuals as
a means of communicating his threatening and disparaging
statements to persons who were employees. The Board has
found a violation where an employer makes threats to a non-
employee with the intent of using that individual as a conduit to
communicate the threat to an employee who is a spouse of the
nonemployee. See, e.g., Medin Realty Corp., 307 NLRB 497
(1992). In the instant case, however, I conclude that the record
fails to show that Betancourt and Maldonado were used as con-
duits. There was no evidence that Gonzalez encouraged either
truckdriver to communicate the threatening and disparaging
comments to employees. Unlike in the case of threats made to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD334
an employee’s spouse, Betancourt’s and Maldonado’s interests
cannot be presumed to be so closely bound up with those of the
employees that the truckdrivers would reasonably be expected
to react to Gonzalez’ statements by attempting to influence
those employees. Moreover, Betancourt and Maldonado were
not shown to have communicated the threats to employees. It
is true that Gonzalez encouraged Betancourt and Maldonado to
talk to J. Figueroa, and that Betancourt, at least, did so. How-
ever, J. Figueroa was himself a nonemployee union organizer
and statements threatening employees communicated to such an
individual are not generally viewed as coercive in violation of
the Act. Basin Frozen Foods, 307 NLRB 1406, 1412 fn. 28
(1992) (dictum); see also Meat Cleaver, 200 NLRB 960 fn. 2
(1972) (Board declines to adopt administrative law judge’s
finding that remarks made to nonemployees violated Sec.
8(a)(1) when made outside the presence of employees), enfd.
mem. sub nom. NLRB v. Asher, 492 F.2d 1189 (9th Cir.
1974).37
I conclude that the allegation that Respondent violated Sec-
tion 8(a)(1) of the Act by the statements Gonzalez made to
Betancourt and Maldonado on about January 8 or 9, 2002,
should be dismissed.
Garcia’s Vacation Benefit
Complaint II alleges that in January 2002 the Respondent
violated Section 8(a)(3) and (1) of the Act by withholding Do-
mingo Garcia’s vacation benefits. Garcia submitted a request
for vacation leave shortly before the start of the strike, but the
vacation dates he requested fell during the strike. Juarbe admit-
ted that the reason Garcia’s leave request was not processed
when it arrived in the human resources department was that the
strike had already commenced at that time. Tr. (II) 217. Juarbe
testified that the human resources department approves leave
requests if it is determined that the individual has accrued the
amount of leave necessary to meet the request. Tr. (II) 294–
295.
The General Counsel and the Respondent agree that the Gen-
eral Counsel has the prima facie burden of showing (1) that the
vacation benefit had accrued, and (2) that the benefit was with-
held on the apparent basis of the strike. General Counsel’s
Brief (I) at 12, Respondent’s Brief (I) at 42; see also Noel
Corp., 315 NLRB 905, 911 (1994), enfd. in part 82 F.3d 1113
(D.C. Cir. 1996). If the General Counsel makes that showing,
then the burden shifts to the Respondent to prove that it had a
legitimate and substantial business justification for withholding
the benefit.” Id. In this case, the General Counsel failed to
establish the first element of the prima facie case. Neither Gar-
cia, nor Juarbe, nor any other witness testified that Garcia had
accrued the vacation leave he was seeking. The record also
lacks documentary evidence on the subject. The collective
bargaining agreement provides that employees accrue leave if
they work 100 hours in “each month,” but the record does not
show how many hours Garcia worked in any of the months

37 Of course, threats made to a nonemployee union agent may be a
violation if the threats are against the union agent and seek to coerce
him or her in the exercise of Sec.7 rights. See, e.g., Bristol Farms, 311
NLRB 437 (1993) (employer violated Sec. 8(a)(1) by threatening to
arrest nonemployee union agents engaged in lawful handbilling).
leading up to his leave request. Nor does it show how much
leave Garcia had already used. Indeed, in its brief on this sub-
ject, the General Counsel merely assumes that the Garcia had
accrued the leave, and provides no argument or discussion re-
garding what it recognizes to be the first element of its prima
facie.
Since the General Counsel has failed to establish the first
element of the prima facie case, I conclude that the allegation
that the Respondent violated Section 8(a)(3) and (1) of the Act
by denying vacation leave to Garcia should be dismissed.
Although the General Counsel has failed to show that the
Respondent unlawfully denied vacation leave to Garcia, I find
that the evidence does establish that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to consider Gar-
cia for such leave because of the strike. As discussed above,
Juarbe admitted that the reason Garcia’s leave request was not
processed was that the strike had started by the time the request
was received. There was no evidence showing that Juarbe be-
lieved Garcia lacked the necessary accrued vacation, and, in-
deed, Juarbe’s testimony was that that his department stopped
processing the request because the strike had begun, without
ever determining whether Garcia was entitled to the vacation
leave. The Board has recognized that denying an individual
consideration can violate Section 8(a)(3) and (1) if that denial
is motivated by the individual’s union or protected concerted
activity. For example, the fact that an employer discriminato-
rily denied an individual consideration for hiring or promotion
has been found to be a violation of Section 8(a)(3) and (1), even
if it is not shown that there was an actual position to which the
individual could have been hired or promoted. See, e.g., Wayne
Erecting, Inc., 333 NLRB 1212 (2001) (discriminatory refusal-
to-consider for hire); Lancaster Fairfield Community Hospital,
311 NLRB 401 (1993) (discriminatory refusal-to-consider for
promotion). The same principal warrants finding a violation
when an employer discriminatorily denies an employee consid-
eration for vacation pay or another benefit, even if it is not
shown that the benefit would have been awarded to the em-
ployee absent the discrimination. Under a modified version of
the framework developed in the hiring and promotion context, a
prima facie case of failure-to-consider a request for an existing
job benefit is established where the evidence shows that (1) the
employer excluded the employee from the consideration proc-
ess for the existing job benefit, and (2) antiunion animus con-
tributed to the decision not to consider the employee for the job
benefit. See, e.g., Wayne Erecting, supra. If the General Coun-
sel makes this initial showing, then the burden shifts to the
employer to show that it would not have considered the indi-
vidual even in the absence of his union activity or affiliation.
Id.
In the instant case, both elements of a prima facie case are
established by Juarbe’s testimonial admission that Garcia’s
request for leave was not processed because the strike had
commenced. The Respondent does not offer any basis for be-
lieving that it would have refused to consider Garcia’s request
if not for the strike. Indeed, it is not plausible that such a basis
exists given Juarbe’s admission and Garcia’s testimony that his
leave requests had always been honored in the past if, as here,
he first obtained the approval of Curet.
PAN AMERICAN GRAIN CO. 335
I recognize that while the complaint contains an allegation
that the Respondent discriminatorily denied Garcia vacation
leave, it does not allege that the Respondent had discriminato-
rily denied him consideration for vacation leave. However, the
Board may find and remedy a violation even in the absence of a
specific allegation in the complaint if the issue is closely con-
nected to the subject matter of the complaint and has been fully
litigated. This is particularly true when the conduct is estab-
lished by the testimonial admissions of the Respondent’s own
witness. Letter Carriers Local 3825 (Postal Service), 333
NLRB 343 fn. 3 (2001); Pergament United Sales, 296 NLRB
333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990); Meisner
Electric, 316 NLRB 597 (1995), affd. mem. 83 F.3d 436 (11th
Cir. 1996). As long as the unpled violations have been fully
litigated due-process concerns are satisfied. Seton Co., 332
NLRB 979, 981 fn. 9 (2000). I conclude that it is appropriate
to find that the Respondent violated Section 8(a)(3) and (1)
when it decided not to process his leave request because the
strike had commenced. The testimonial admission of Juarbe,
the Respondent’s own human resources director, established
this conduct. There is no dispute that Juarbe was, at all mate-
rial times, a supervisor and agent of the Respondent. The other
evidence of record, in particular the testimony of Garcia, Ross-
ner, and Agosto, indicated that leave was routinely granted if
Curet approved it. The violation based on the Respondent’s
discriminatory refusal to consider Garcia’s leave request of
January 2002 is closely connected to the allegation in complaint
II that the Respondent discriminatory refused to grant that leave
request. I conclude that this matter has been fully litigated.
I find that the Respondent violated Section 8(a)(3) and (1) by
discriminatorily refusing to consider Garcia’s January 2002
request for leave because the strike had commenced.
Medical Plan Payments for Rossner and Ortiz
Complaint II alleges that, when the Respondent discontinued
making payments to the medical plans of Rossner and Ortiz, it
violated Section 8(a)(3) and (1) of the Act because it was moti-
vated by the employees’ protected activity, including the strike.
As set forth above, the General Counsel has the initial burden
of showing that the medical plan benefit had accrued, and that
the benefit was withheld on the apparent basis of the strike.
Noel Corp., supra at 911. If the General Counsel makes that
showing, then the burden shifts to Respondent to prove a le-
gitimate and substantial business justification for withholding
the benefit. Id.
On January 10, 2002, just 2 days after the start of the strike,
the Respondent informed Rossner and Ortiz, employees of
approximately 20 years and 11 years, respectively, that it would
discontinue its contribution to their group medical plan cover-
age. The Respondent had been providing the benefit to them
for some time prior to the start of the strike and was still pro-
viding it when the strike began. Under the Respondent’s estab-
lished practice, Rossner and Ortiz, as employees on medical
leave, were entitled to continue receiving the medical plan
benefit for 24 months—a period that had not expired for either
of them. The fact that the bargaining unit went on strike did
not affect Rossner’s or Ortiz’ entitlement to receive the medical
plan benefit while on medical leave. The Board has stated that
“an employer may not presume that employees unable to work
on and after the commencement of a strike are affirmatively
supporting the strike and can therefore have benefits terminated
as if they were strikers.” Gulf Oil Co., 290 NLRB 1158, 1160
(1988); Conoco, Inc., 265 NLRB 819, 821 (1982), enfd. 740
F.2d 811 (10th Cir. 1984). This is true even if an injured em-
ployee attends the picket line during the strike. Freeman Deco-
rating Co., 336 NLRB 1, 8 (2001), enf. denied 334 F.3d 27
(D.C. Cir. 2003); National Football League Management, 309
NLRB 78, 86, 109 (1992). Based on this evidence, I conclude
that both Rossner and Ortiz had accrued the medical plan bene-
fit.
I also find that evidence establishes that the Respondent
ceased contributing to Rossner’s and Ortiz’ medical plan on the
apparent basis of the strike. Timing is an important factor in
assessing discriminatory motivation. See, e.g., Detroit Panel-
ing Systems, 330 NLRB 1170 (2000); Bethlehem Temple
Learning Center, 330 NLRB 1177, 1178 (2000); American
Wire Products, 313 NLRB 989, 994 (1994). The timing in this
case is enough to show an apparent link. On January 10, just 2
days after the strike commenced, the Respondent informed the
two disabled employees that it would cease its contribution to
their medical plan. The Respondent did not introduce any evi-
dence to suggest that it was planning to discontinue, or had
even contemplated discontinuing, this benefit before the start of
the strike. Indeed, the Respondent appears to concede that its
decision to discontinue the benefit was linked to the strike.
Respondent’s Brief (I) at 45. The link between the strike and
the discontinuation of the benefit is also supported by the
statements Gonzalez made just a day or two earlier indicating
that he intended to make the strike as financially painful as
possible for employees. The General Counsel has met its initial
burden, and therefore the burden shifts to the Respondent to
prove a legitimate and substantial business justification for
cessation of the medical plan benefit.
The Respondent suggests that it was justified in discontinu-
ing its contributions to the medical plan for Rossner and Ortiz
because the employees were insured under a group medical
plan obtained by the Union and “a reasonable inference can be
drawn . . . that the Company had no knowledge as to the terms
and conditions of the insurance coverage and/or if the insurance
Company would allow individual coverage of particular em-
ployees.” Respondent’s Brief (I) at 46. This unsupported
speculation by Respondent’s counsel about the fate of the group
medical plan and the availability of individual coverage falls far
short of meeting the Respondent’s burden of proving a legiti-
mate and substantial business justification. Not one of the Re-
spondent’s officials testified that he or she had doubts about the
availability of the medical plan during the strike, or claimed
that such doubts in any way contributed to the Respondent’s
decision to discontinue the medical plan payments for Rossner
and Ortiz. Even if the Respondent harbored such doubts, that
would be insufficient to show the necessary business justifica-
tion, unless the Respondent had a legitimate and substantial
basis for those doubts. None of the Respondent’s officials testi-
fied that the insurance company, the Union, or any other
source, informed the Respondent that the group health plan was
being discontinued or that the Company’s individual contribu-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD336
tions for Rossner and Ortiz would no longer be accepted or
could not be applied to preserve coverage. Nor did any official
of the Company testify that, before discontinuing the payments,
the Respondent made an effort to find out whether the group
medical plan had been canceled, or whether Rossner and Ortiz
could continue to be covered. To put it bluntly, the business
justification suggested in the Respondent’s brief is completely
without factual basis and gives every indication of being purely
an invention of counsel. The Respondent has not met its bur-
den of showing a legitimate and substantial business justifica-
tion for its action.
I conclude that the Respondent violated Section 8(a)(3) and
(1) of the Act by discontinuing its payments to the medical
plans for Rossner and Ortiz because employees engaged in a
strike.38
Employees Laid Off and Permanently Replaced
Complaint II alleges that the Respondent violated Section
8(a)(3) and (1) of the Act by terminating the employment of 15
unit employees on February 27, 2002, and 26 unit employees
on April 16, 2002, because of the employees’ union and pro-
tected concerted activities, including engaging in the strike that
began on January 8, 2002.
Under the Board’s decision in Wright Line, 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied
455 U.S. 989 (1982), approved in NLRB v. Transportation
Corp., 462 U.S. 393 (1983), the General Counsel meets its
initial burden of showing that a layoff was unlawfully moti-
vated by establishing that the employees engaged in protected
activity, that the employer knew of the activity, and that the
employer demonstrated antiunion animus. Vico Products Co.,
336 NLRB 583, 587–588 (2001), enfd. 333 F.3d 198 (D.C. Cir.
2003). Unlawful motivation can also be inferred from circum-
stantial evidence, such as the timing of the layoff. Id. Once the
General Counsel meets its initial burden, the burden shifts to
the Respondent to show that it would have laid off the employ-
ees even in the absence of the protected activity. Id. at 587 fn.
15. With respect to the 15 employees alleged to have been
unlawfully terminated on February 27, the General Counsel
easily clears the three hurdles to meeting its initial burden. The
employees were engaged in protected activity—a strike—at the
time of the layoff, and the Respondent was aware of this activ-
ity. The General Counsel has also shown antiunion animus. As
discussed above, Gonzalez, the Respondent’s owner and presi-

38 Complaint II also alleges that by discontinuing its medical plan
payments for Rossner and Ortiz the Respondent has been failing and
refusing to bargain collectively and in good faith with the Union in
violation of Sec. 8(a)(5) and (1). Neither the General Counsel nor the
Respondent discusses this refusal to bargain allegation in their briefs.
Indeed, the statements of issues in the General Counsel’s briefs do not
include an 8(a)(5) and (1) allegation based on the medical plan pay-
ments for Rossner and Ortiz among the issues listed. In its briefs, the
General Counsel seeks no relief related to this allegation and does not
discuss whether evidence shows that the Respondent offered the Union
an opportunity to bargain on the subject. I conclude that the General
Counsel has abandoned the claim that the Respondent violated Sec.
8(a)(5) and (1) of the Act when it discontinued the medical plan pay-
ments for Rossner and Ortiz, and that the issue was not fully litigated. I
reach no determination regarding the issue.
dent, called the striking employees “jerks” and “sons of
bitches,” and said that they would find themselves “out of the
company, they wouldn’t return” unless they abandoned their
strike that day. He said that he would refuse to reach agree-
ment with Union, would laugh at the plight of the strikers when
their money ran out, and was willing to spend $2 million to rid
the company of the strikers. Moreover, the layoff was the sort
of action that Gonzalez indicated he would take to punish the
strikers. Although Gonzalez’ statements were made to non-
employees and therefore did not amount to a violation of Sec-
tion 8(a)(1), that does not diminish the antiunion animus im-
plicit in the statements. See Basin Frozen Foods, supra at 1412
fn. 28. I conclude that the General Counsel has met its burden
of showing that unlawful motivation played a part in the Re-
spondent’s decision to lay off 15 unit employees on February
27, and the burden therefore shifts to the Respondent to show
that it would have laid off the employees even absent their pro-
tected activity.
The Respondent states that its decision to lay off the 15 strik-
ing employees was the result of an ongoing project to reduce
staffing needs by modernizing and automatizing its facilities.
Gonzalez testified in some detail about this project, which be-
gan in 1996 and was continuing at the time of the strike and
layoff. He described new equipment that was purchased and
installed at the Respondent’s facilities and which reduced the
Respondent’s need for unit employees. He discussed photo-
graphs of some of the new equipment and explained the func-
tion of the equipment in the Respondent’s operation. He also
testified that recent changes made the Respondent’s operation
so much more efficient that the company had been able to shut
down one of its older assembly lines at one facility, signifi-
cantly decreasing staffing needs. The modernization and auto-
mation project had resulted in one or two layoffs per year. In
addition, Gonzalez stated that the Respondent’s sales declined
below expectations in early 2002, further reducing staffing
requirements. The Respondent selected the particular employ-
ees who were laid off for the February 2002 layoff by following
the procedures in the CBA.
The General Counsel did not introduce evidence that rebut-
ted Gonzalez’ facially plausible, and quite detailed, testimony
that a significant decrease in staffing needs had resulted from
the modernization and automation project and from a dip in
sales. No testimony or other evidence was produced indicating
that the changes in equipment described by Gonzalez had not
occurred or that those changes had not, as he claimed, reduced
the Respondent’s need for unit employees as of early 2002.
Similarly, there was no testimony or other evidence disputing
Gonzalez’statement that the February 2002 layoff was one of
many work force reductions that had been implemented since
the Respondent began the modernization and automation pro-
ject in 1996. Nor was there any probative evidence contradict-
ing Gonzalez’ statement that, during contract negotiations in
2001, he informed the Union’s bargaining team that further
staff reductions were anticipated. There was also no testimony
or other evidence to rebut Gonzalez’ testimony that the Re-
spondent’s sales dipped below expectations in the early months
of 2002, after the strike commenced. Moreover, the General
Counsel failed to show that the 15-employee staff reduction
PAN AMERICAN GRAIN CO. 337
from 41 to 26 bargaining unit employees was not real. Indeed,
the evidence indicates that once all 41 bargaining unit employ-
ees had been eliminated from the work force, the Respondent
hired only 25 replacement workers. The record does not show
that the Respondent returned to the 41-employee, pre-layoff,
staffing level for the type of work done by bargaining unit em-
ployees, or even that the Respondent exceeded the 26-employee
level that resulted from the February layoff.39 This tends to
support to conclusion that the Respondent had experienced a
real decrease in its need for production employees.
The timing of the layoff—less than 2 months after the com-
mencement of the strike—is somewhat suspicious. This timing
is especially curious given that the 15 laid-off employees were
already on strike and, therefore, were not providing services to
the Respondent at the time they were laid off. However, the
Respondent discussed the need for staff reductions during con-
tract negotiations with the Union in 2001. This establishes that
a layoff was being considered before the strike, and undercuts
the suggestion that the timing of the layoff was dictated by the
strike. Regarding the decision to lay off employees who were
already withholding services, Gonzalez explained that once he
concluded that the 15 striking employees would not be needed
when the strike ended, he wanted to notify the employees im-
mediately so that they could obtain government benefits, such
as unemployment compensation and food stamps. He stated
that he thought it would be “immoral” to delay notifying the
employees of the layoff until the strike ended because that
would mean the affected employees would have to go months
without receiving government benefits to which they were enti-
tled. The General Counsel has not disputed Gonzalez’ asser-
tion that by notifying the Union of the layoff the Respondent
enabled the laid-off individuals to obtain government benefits
that would otherwise have been unavailable to them. Although
Gonzalez’ professed concern for the well-being of the strikers
is suspect given his other behavior, in particular his statements
to Betancourt and Maldonado, I believe that his explanation is
sufficiently plausible, in light of the record as a whole, to ne-
gate any inference that might otherwise be raised by the timing
of the layoff.
The General Counsel notes that Juarbe’s February 27 letter
informing the Union of the layoff does not mention the mod-
ernization and automation project, but rather states that the
reductions were the result of “economic reasons and . . . a sub-
stantial decrease in production and sales.” Although both Gon-
zalez’ and Juarbe’s explanations for the layoff boil down to a
claim that the services of the laid off workers were no longer
necessary to meet the company’s production needs, I do see
their explanations as inconsistent inasmuch as Gonzalez attrib-
utes that lack of need primarily to increased efficiency and
Juarbe attributes it to decreased demand. The fact that an em-
ployer offers shifting explanations for terminating employees is
evidence of pretext. Douglas Foods Corp., 330 NLRB 821
(2000), review granted in part 251 F.3d 1056 (D.C. Cir. 2001).

39 There was evidence that, at the time of the layoff, the Respondent
was in the process of an expansion that was expected to create new
jobs. However, the record does not show that these new jobs involved
work comparable to that performed by bargaining unit employees.
I have considered this evidence, but conclude that the inconsis-
tency in this case is of little probative value. First, while Gon-
zalez testified that the modernization and automation project
was the main reason for the layoff, he also testified, consistent
with Juarbe’s letter, that a dip in sales also decreased staffing
needs. In addition, Juarbe, who prepared the letter, was not one
of the participants in the meeting at which the decision to lay
off employees was made. In fact, Juarbe was not informed
about the layoff decision until February 27, when Gonzalez
directed him to prepare the letter informing the Union about the
layoff. Juarbe finalized the letter the same day. As the Re-
spondent’s director of human resources, Juarbe’s duties in-
volved recruiting and selecting employees, administering the
CBA, establishing rules and procedures, and disciplining em-
ployees, but not such things as monitoring production and sales.
Under these circumstances, I consider it not unlikely that the
discrepancy between Gonzalez’ explanation and the one given
in Juarbe’s letter resulted from the fact that the letter was pre-
pared on short notice by someone who was not involved in
either the decision to implement a layoff or in managing the
Respondent’s production and sales. The evidence substantiat-
ing the Respondent’s position that an ongoing modernization
and automation project had reduced staffing needs was detailed,
plausible, and uncontroverted; it outweighs the evidence cast-
ing doubt on the veracity of the Respondent’s explanation. The
Respondent has shown that it more likely than not would have
decided to implement its February 2002 layoff because its staff-
ing needs had decreased, even absent the employees’ protected
activities.
For the reasons discussed above I conclude that the allega-
tion that the Respondent violated Section 8(a)(3) and (1) by
terminating 15 employees in February 2002 should be dis-
missed.
The General Counsel argues that the April 16 termination of
26 bargaining unit employees was unlawful because “when an
employer falsely informs striking employees that they have
been permanently replaced, the employer unlawfully discharges
the strikers in violation of Section 8(a)(1) and (3).” General
Counsel’s Brief (I) at 26; see also Consolidated Delivery &
Logistics, 337 NLRB 524, 525 (2002), enfd. 63 Fed. Appx. 520
(D.C. Cir. 2003); Noel Corp., 315 NLRB at 907; Mars Sales &
Equipment Co., 242 NLRB 1097, 1101 (1979), enf. granted in
relevant part 626 F.2d 567 (7th Cir. 1980).40 According to the

40 The General Counsel has not pled, or argued, that the replaced
employees were unfair labor practice strikers or that the Respondent
was prohibited from permanently replacing them. Nor does the Gen-
eral Counsel contend that the strikers had made an unconditional offer
to return to work at the time they were permanently replaced in April
2002. The Union did not present an independent case at trial, or a brief
after trial, or otherwise contend in this proceeding that the employees
should be found to have been unfair labor practices strikers or that they
made an unconditional offer to return prior to April 17. Since it is not
alleged either that the employees were engaged in an unfair labor prac-
tices strike, or that the strikers had made an unconditional offer to re-
turn to work prior to their permanent replacement the Respondent’s
right, under NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333,
345–346 (1938), to hire permanent replacements in April 2002 is not an
issue here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD338
General Counsel, the Respondent’s statement that the 26 em-
ployees had been permanently replaced on April 16 was false
because the replacement workers hired at that time were all
subject to probationary periods.
The Respondent bears the burden of proving the permanent
status of strike replacements. Consolidated Delivery & Logis-
tics, supra at 526. In this case Juarbe testified, without contra-
diction, that the replacements had previously worked for the
Respondent through a temporary agency, but on April 16 were
hired as permanent employees of the Respondent, subject only
to the completion of their probationary periods. Juarbe’s testi-
mony on this point is consistent with the documentary evidence
showing that the employees entered into employment contracts
directly with the Respondent on April 17. Juarbe testified that
the understanding with the replacements at that time was that
they would work for the Respondent indefinitely. This, too, is
corroborated by the employment contracts, which do not state
that the employment will end on particular day, or limit the
duration of the employment to a certain number of days. There
was no significant evidence to contradict Juarbe’s claim that,
on April 17, the replacements were hired with the understand-
ing that they would work indefinitely.
The General Counsel’s argument that the striker replace-
ments were not permanent because they were hired subject to a
probationary period fails under Board precedent. The Board
has held that replacements hired to work indefinitely subject to
a probationary period are considered permanent replacements
during the probationary period. Id. at 626 fn. 5; Solar Turbines
Incorporated, 302 NLRB 14, 15 (1991), affd. sub nom. mem.
Machinists v. NLRB, 8 F.3d 27 (9th Cir. 1993); Anderson, Clay-
ton & Co., 120 NLRB 1208, 1214 (1958); and Kansas Milling
Co., 97 NLRB 219, 225–226 (1951). The 25 replacement em-
ployees began on April 17 with the understanding that they
would work indefinitely, and thus they were permanent re-
placements as of that day, despite the fact that they were sub-
ject to probationary periods. The Respondent’s statement that
the strikers were being permanently replaced was not false.
Therefore, the precedent relied on by the General Counsel is
inapplicable, and the statement does not give rise to a violation
of Section 8(a)(3) and (1).41 The Union did not make an un-
conditional offer to return to work until July 10—well after the
replacements were hired as permanent employees.
I conclude that the allegation that the Respondent violated
Section 8(a)(3) and (1) of the Act on April 16, 2002, by telling
26 unit employees that they had been permanently replaced
should be dismissed.
The complaint, as amended (see GC Exhs. 1(ll) and (hh)),
also alleges that the terminations in February and April were
mandatory subjects of bargaining and that the Respondent
failed to bargain over them in violation of Section 8(a)(5) and

41 I do not consider it significant that the Respondent’s April 16 let-
ter to the strikers stated that they would be permanently replaced as of 5
p.m. that day, but the Respondent did not actually hire the replacements
as permanent employees until the start of business the next day. Absent
evidence that the strikers were planning on making an unconditional
offer to return on April 16 or 17, or other unusual circumstances not
present here, any gap that arguably exists between the close of business
on April 16 and the start of business on April 17 is of no consequence.
(1). It is well established that layoff decisions are a mandatory
subject of bargaining and that an employer who conducts a
layoff without giving the union notice and an opportunity to
bargain violates the Act. SPX Corp., 333 NLRB 875 fn. 1
(2001); Kajima Engineering, 331 NLRB 1604, 1619–1620
(2000); and Holmes & Narver, 309 NLRB 146, 146–147
(1992); see also NLRB v. Katz, supra. The record and applica-
ble law lead me to conclude that the Respondent unlawfully
failed to bargain over the February 27 layoff in violation of
Section 8(a)(5) and (1) of the Act. J. Figueroa testified that the
Respondent did not give the Union prior notice or an opportu-
nity to bargain over the changes. The only contrary evidence is
Gonzalez’ testimony that during negotiations for a new contract
prior to the layoff, he informed the union committee that the
Respondent intended to continue with staff reductions in the
future. Gonzalez’ general statements that the Respondent an-
ticipated layoffs in the future do not constitute adequate notice
about the specific layoff that was carried out by the Respondent
on February 27, and do not give rise to a colorable argument
that the Union waived bargaining. See Gannett Co., 333 NLRB
355, 357–358 (2001) (“notice must afford the union a reason-
able opportunity to evaluate the proposals and present counter-
proposals before implementing [the] change”); Sierra Interna-
tional Trucks, Inc., 319 NLRB 948, 950 (1995) (employer’s
“inchoate and imprecise” statement regarding “future plans
about which the timing and circumstances are unclear” is insuf-
ficient notice); Oklahoma Fixture Co., 314 NLRB 958, 960–
961 (1994), enf. denied 79 F.3d 1030 (10th Cir. 1996). Ac-
cording to Gonzalez, it was not until February 2002 that the
Respondent’s officials had the meeting at which a decision was
made to lay off employees effective February 27. Neither Gon-
zalez, nor any other witness, testified that, once the Respondent
decided to have the specific layoff, the Respondent ever gave
the Union notice or an opportunity to bargain.
I find that the Respondent violated Section 8(a)(5) and (1) of
the Act by implementing the February 27 layoff without giving
the Union adequate notice and reasonable opportunity to bar-
gain.
The General Counsel does not make any argument to support
the allegation that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing to provide the Union with notice and
an opportunity to bargain regarding the April 16 action affect-
ing 26 unit employees. As discussed above, I have concluded
that those 26 bargaining unit employees were permanently
replaced. A Respondent’s right to continue its business by
hiring permanent replacements during an economic strike is not
limited by an obligation to provide the Union with notice and
an opportunity to bargain regarding that decision. Times Pub-
lishing Co., 72 NLRB 676, 684 (1947). Since the Respondent
did not have a duty to bargain over the permanent replacement
of the 26 employees, it did not violate the Act by failing to do
so.
I conclude that the allegation that the Respondent violated
Section 8(a)(5) and (1) of the Act by failing to give the Union
notice and an opportunity to bargain regarding the termination
of 26 bargaining unit employees on April 16 should be dis-
missed.
PAN AMERICAN GRAIN CO. 339
Alleged Direct Dealing
The complaint alleges that the Respondent dealt directly with
unit employees in violation of Section 8(a)(5) and (1) in March
and April 2002 by soliciting employees to accept the Respon-
dent’s proposal for a collective-bargaining agreement and by
seeking a response from employees to the proposal. “In order
to prove [unlawful direct dealing], it must be shown that Re-
spondent is communicating with its represented employees and
that the discussion is for the purpose of establishing or chang-
ing the wages, hours, and terms and conditions of employment
. . . or undercutting the Union’s offer to establish or change
them, and finally, such communication must be to the exclusion
of the Union.” Southern California Gas Co., 316 NLRB 979,
982 (1995); see also Permanente Medical Group, 332 NLRB
1143, 1145 (2000). “[A]n employer has a fundamental right . .
. to communicate with its employees concerning its position in
collective bargaining negotiations,” United Technologies Corp.,
274 NLRB 1069, 1074 (1985), but is obligated “to deal with the
employees through the union, and not with the union through
the employees.” General Electric Co., 150 NLRB 192, 195
(1964).
The record shows that the Respondent distributed a proposal
for a new CBA to represented employees at the Arroz Rico
facility within a day or two after providing that proposal to the
Union. Thus the General Counsel has proven both that the
Respondent “communicat[ed] with its represented employees”
and did so regarding a matter relating to changes in wages and
other terms and conditions of employment. The General Coun-
sel’s case stumbles over the requirement that the communica-
tion be made “to the exclusion of the Union.” Although under
the circumstances I question how meaningful an opportunity
the Union had to communicate with unit members about the
proposal before the Respondent delivered it to employees, the
fact remains that the Respondent delivered the proposal to the
Union first. The Respondent’s actions bring it to the brink of
dealing “with the union through the employees.” However, I
do not believe one can say under the circumstances present here
that the Respondent crossed over into unlawful territory, and
the General Counsel provides no authority or argument that
indicates otherwise. See Putnam Buick, 280 NLRB 868 (1986)
(Employer did not violate Sec. 8(a)(5) by calling its employees
together and passing out copies of contract proposals that had
been provided to the union earlier that day.), affd. 827 F.2d 557
(9th Cir. 1987).
The complaint also alleges that the Respondent violated Sec-
tion 8(a)(5) and (1) by seeking a response from employees to
the CBA proposal. The General Counsel relies on Hancock
Fabrics, 294 NLRB 189 (1989), enfd. mem. 902 F.2d 28 (4th
Cir. 1990), for the proposition that an employer may not poll
employees about their preferences with respect to changes to
existing conditions of employment. In the instant case, how-
ever, the General Counsel has not shown that officials of the
Respondent either asked any employees what their preferences
were regarding the changes embodied in the Respondent’s pro-
posal, or otherwise sought a response from employees about the
proposal. Indeed, Jacobs told employees that the proposal was
being distributed so that employees would be able to discuss it
with the union bargaining committee or in assembly, not so that
they could discuss it with management officials. I believe the
Respondent’s action falls within the category of lawful com-
munications “to employees concerning its position in collective
bargaining negotiations.” United Technologies Corp., supra.
For the reasons discussed above I conclude that the allega-
tions that the Respondent dealt directly with employees in vio-
lation of Section 8(a)(5) and (1) by distributing a proposed
CBA to employees and seeking a response from employees
regarding the proposal, should be dismissed.
Reduced Wages Paid to the Former Strikers
The General Counsel alleges that when the former strikers
resumed working in October and November 2002, the Respon-
dent paid them reduced wages because they had engaged in the
strike. Prior to the strike these employees were earning be-
tween $6.15 and $9.31 per hour. When they returned after the
strike, the Respondent paid each of them only $5.15 an hour,
the lowest wage allowed under the collective-bargaining
agreement, and one that was only permissible for “new” em-
ployees. This wage was well below the minimum the Respon-
dent was allowed to pay nonprobationary employees in the both
the skilled and the unskilled classifications. After the returning
strikers completed their probationary periods, the Respondent
did not give them the increases that were automatic under the
CBA, but continued to pay them only $5.15 an hour. For the
reasons discussed below, I find that the Respondent discrimina-
torily paid the returning strikers reduced wages because of their
protected activity, and therefore violated Section 8(a)(3) and (1)
of the Act.
The General Counsel easily meets its initial burden under
Wright Line, supra, of showing that the Respondent’s decision
to reduce the wages of the returning strikers was motivated by
antiunion animus. The alleged discriminatees had all engaged
in a strike against the Respondent and the Respondent was
aware of that activity. The statements that the Respondent’s
president, Gonzalez, made to Betancourt and Maldonado show
antiunion animus and are strong evidence that Gonzalez
planned to act on that animus by punishing the strikers finan-
cially if they participated in the work stoppage. Since the Gen-
eral Counsel has met its initial burden, the burden shifts to the
Respondent to show that it would have reduced the wages of
the laid-off employees even absent the protected activity.
The Respondent argues that it treated the returning strikers as
new hires who would be paid only $5.15 an hour because those
individuals resigned when they failed to appear on August 15 in
response to an invitation from the Respondent, and when they
failed to enter the Respondent’s facility on August 22 in order
to be reemployed. This contention is without merit. Even as-
suming that the returning strikers had resigned and could be
treated as new employees that would not explain the Respon-
dent’s decision to pay them as little as it did. Since the strike
began, the Respondent has hired a number of employees who
were not strikers and the Respondent started them all at wages
in excess of the $5.15 per hour that was paid to all the employ-
ees who had participated in the strike. This was true despite the
fact that most of the former strikers were skilled and had many
years of experience with the Respondent. The Respondent has
not shown that it had a legitimate reason for paying the return-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD340
ing strikers less than other, nonstrikers, hired since January 8,
2002. The record leads me to conclude that although the CBA
allows a wage of $5.15 per hour for new hires, the Respondent
reserved that low wage for those employees who had partici-
pated in the strike. Moreover, the Respondent’s claim that it
was simply following the CBA provisions regarding wages is
belied by the fact that when the returning strikers completed
their probationary periods, the Respondent denied them the
wages increases of a $1 or more per hour each that were auto-
matic under the CBA.42 Thus, the Respondent has failed to
show that it would have reduced the wages of the returning
strikers to $5.15 per hour absent the protected activity.
Even if the record showed that the Respondent had consis-
tently paid new employees $5.15 per hour, I would reject the
Respondent’s argument because the company was not entitled
to treat the former strikers as new employees. In Laidlaw
Corp., 171 NLRB 1366, 1369–1370 (1968), enfd. 414 F.2d 99
(7th Cir. 1969), cert. denied 397 U.S. 920 (1970), and subse-
quent cases, the Board has made clear that “economic strikers
who unconditionally apply for reinstatement at a time when
their positions are filled by permanent replacements remain
employees” and cannot be treated as new hires or entry-level
employees. See also Detroit Newspapers, 340 NLRB 1019
(2003); Alaska Pulp Corp., 326 NLRB 522 (1998), enf. granted
in part, denied in part on other grounds 231 F.3d 1156 (9th Cir.
2000); and Transport Co. of Texas, 177 NLRB 180, 185
(1969), enfd. 438 F.2d 258 (5th Cir. 1971).
In an effort to avoid the application of Laidlaw, the Respon-
dent contends that it could treat the returning strikers as new
employees because they had resigned their employment by
failing to return to work on August 15 and 22 in response to
offers of reinstatement. Regarding the August 15 date, the
record shows that, while the Respondent invited former strikers
to come to its facility, it did not make any of them an offer of
reinstatement. The August 13 letter that the Respondent char-
acterizes as an offer of reinstatement states that the former
strikers “have been permanently replaced,” but that “there have
recently been some vacancies” and that all the “employees
affected,” should appear at the Respondent’s facility on August
15 so that it could be determined which among them “are enti-
tled” to fill the vacancies. This letter is notable for what it does
not state. It does not state that the Respondent is offering any
of the former strikers their former positions, or substantially
similar ones. It does not state what type of work the former
strikers are being invited to seek, the location where the work
will be performed, the wages that will be paid, or any of the
other conditions of employment. Moreover, although the Re-

42 The Respondent claims that it did not give wage increases to the
returning strikers who completed their probationary periods because the
Union never requested bargaining regarding the matter. However, the
increases that the CBA provides for upon the completion of the proba-
tionary period are automatic, and do not require bargaining. Indeed, the
Respondent’s decision to deny those automatic raises, and thereby
change the dynamic status quo under the CBA, was itself a change
about which it was obligated to bargain. See Ventura County Star-Free
Press, 279 NLRB 412, 419–420 (1986) (pay step increases granted to
employees when they reach new experiences levels are part of a dy-
namic status quo and cannot be discontinued without bargaining).
spondent invites the Union to appear on August 15 with “all
affected employees,” the letter does not state that it will re-
employ all, most, or even a significant minority of the former
strikers who respond. The letter does not name a single em-
ployee who the Respondent is offering to re-employ on August
15, but only states that it will determine who is “entitled” to the
vacancies. The letter does not even state that the former strik-
ers will have preference over other applicants. It is not clear it
is anything more than an invitation for the former strikers to
apply for an undisclosed number of unspecified vacancies.
Certainly, it is not what the Respondent now suggests—i.e., an
offer to reinstate all the replaced strikers to their former posi-
tions, or to substantially similar ones.
Even if the Respondent’s August 13 letter offered specific
employees reinstatement to their former, or substantially simi-
lar, positions, I would conclude that it was not a valid offer
because it did not provide a reasonable amount of time for the
former strikers to accept reinstatement and arrange to report. In
Toledo (5) Auto-Truck, 300 NLRB 676 (1990), enfd. mem. 986
F.2d 1422 (6th Cir. 1993), the Board found that an employer
violated Section 8(a)(3) and (1) by unlawfully terminating the
recall rights of two former strikers who failed to appear in re-
sponse to a recall notice stating that they had to report by a
specific date or their recall rights would be terminated. The
Board stated that an offer of reinstatement is invalid if the time
period in which to report is “unreasonably short” and the offer
“[m]akes it clear that reinstatement is conditioned on the em-
ployee’s returning to work by the specified date.” 300 NLRB
at 676 fn. 2. One of the employees in Toledo received notifica-
tion 3 days before the reporting deadline, and in the other in-
stance the employee actually received the letter after the report-
ing deadline. The Board stated that such an offer is invalid “on
its face,” and that employees are not even required to respond.
Id. In the instant case, the employees had not worked for the
Respondent in over 7 months, and it had been more than 4
weeks since the Union made the unconditional offer to return to
work, yet the Respondent’s August 13 letter to the Union gave
the employees only 48 hours to appear. Under the circum-
stances, it was unreasonable to expect the Union to be able to
communicate with all the former strikers and for those former
strikers to arrange to make themselves available within such a
short period of time. The Respondent has not shown that there
were any unusual circumstances that made the 48-hour deadline
essential. Under Toledo, the Union was not even obligated to
respond to the Respondent’s invalid offer, but the Union did
respond, and did so within a reasonable period of time, in its
April 15 letter offering to meet with the Respondent.43 Since

43 The Respondent relies on Esterline Electronics Corp., 290 NLRB
834 (1988), to argue that it made a valid offer of reinstatement. That
case provides that an unreasonably short response deadline does not, by
itself, render an offer of reinstatement invalid unless the offer states or
suggests that the offer will lapse if the employee does not make a deci-
sion on restatement by the deadline. Under Esterline, if the employer
does not indicate that the offer will lapse after the expiration of the
unreasonable deadline, the employees have an obligation to contact the
employer to see if the deadline will be extended. In this case, I believe
that the Union and employees would reasonably read Juarbe’s August
13 letter as suggesting that those who wanted to return had to appear on
PAN AMERICAN GRAIN CO. 341
the Respondent’s letter of August 13 letter was not a valid offer
of reinstatement, the replaced strikers did not voluntarily resign
by failing to appear on August 15.
I also conclude that the employees did not voluntarily resign
on August 22 when they failed to enter the Respondent’s facil-
ity. At that time, the Respondent had still not clarified how
many vacancies there were, what types of vacancies the em-
ployees would be considered for, or what the terms and condi-
tions of employment would be. The Respondent had not told
the Union or the employees that it was offering any of them
reinstatement to their former positions or to substantially
equivalent positions, or even that any former striker would
necessarily be reemployed if they appeared.44 Thus, when the
former strikers failed to enter, they were not rejecting an offer
of reinstatement, resigning their employment, or forfeiting their
rights under Laidlaw.45
For the reasons discussed above, I conclude that the Respon-
dent has failed to meet its burden under Wright Line of showing
that it would have reduced the wages of the former strikers
even absent the protected activity. I find that the Respondent
violated Section 8(a)(3) and (1) of the Act by reducing the
wages of the former strikers employees.
Work Shifts
The complaint alleges that the Respondent unlawfully dis-
criminated against the 41 strikers by assigning them to less
desirable work shifts after the strike. At trial, however, the
General Counsel failed to introduce evidence that the former
strikers, with one exception, were even assigned to less desir-
able work shifts, much less that they were assigned to such
shifts for discriminatory reasons. Indeed, 11 of the former
strikers who the complaint alleges were assigned to “less desir-
able” work shifts have been returned to the same shift they

August 15 at 2 p.m. and that the invitation would expire after that time.
At any rate, on August 15, the Union met any obligation it had under
Esterline by responding to the company’s invitation and proposing to
meet on August 20.
44 The letters inviting the former strikers to the Respondent’s offices
on August 22 date stated that “there are some vacant positions for
which you can qualify,” but those letters did not state how many posi-
tions there were or that the former strikers necessarily would qualify for
them.
45 Even if the Respondent had made a valid offer of reinstatement, I
would find that the Respondent failed to show that the employees re-
signed on August 22 when they refused to enter the facility without J.
Figueroa. More specifically, the Respondent did not establish that it
was entitled to prohibit J. Figueroa—the union official chosen to speak
for the unit—from accompanying the employees into the facility in
order to discuss the details of their return to work. Indeed, in a separate
case, currently pending before the Board, the administrative law judge
found that the Respondent’s refusal to permit J. Figueroa into its facil-
ity was itself an unfair labor practice. See supra at fn. 19. An offer to
reinstate strikers becomes invalid if the Respondent conditions the offer
on the strikers accepting an unfair labor practice. See Royal Motor
Sales, 329 NLRB 760, 777 (1999) (lockout unlawful when it had the
purpose of pressuring employees to accept unfair labor practice), enfd.
Fed. Appx. 1 (D.C. Cir. 2001); D.C. Liquor Wholesalers, 292 NLRB
1234 fn. 3 (1989) (lockout is not in support of a “legitimate bargaining
position,” when it is being used to pressure employees to accept unlaw-
fully implemented last offer), enfd. 924 F.2d 1078 (D.C. Cir. 1991).
worked prior to the strike. Another eight of the former strikers
have worked at least part of the time on their prestrike shift.
There was no testimony that those returning strikers who were
not given their prestrike schedules were assigned to shifts that
were generally regarded by employees or company officials as
less desirable. Only one of the returning strikers, Carlos Fer-
nandez Centeno, testified that he personally considered his
post-strike schedule less desirable.46 In Fernandez’ case I con-
clude that the General Counsel failed to show that the Respon-
dent made a decision to assign him to a less-desirable shift.
The evidence did not show that when the Respondent chose
Fernandez for the 2 to 10:30 p.m. schedule, Fernandez had
stated a poststrike shift preference, or that the Respondent oth-
erwise knew that Fernandez would consider that shift undesir-
able. Even if the Respondent had knowingly gone against Fer-
nandez’ shift preference, the record here would not establish
that the decision was connected to the Respondent’s antiunion
animus. Fernandez participated in the strike, but it was not
shown that he had engaged in any protected activities that dis-
tinguished him from the other strikers or provide a basis for
believing that the Respondent would single him out for an un-
desirable shift assignment.
I find that the allegation that the Respondent discriminatorily
assigned the former strikers to less desirable shift assignments
in violation of Section 8(a)(3) and (1) has not been proven and
should be dismissed.
Reinstatement to the Same, or Substantially
Equivalent Positions
The complaint alleges that since October 29, 2002, the Re-
spondent has discriminated against the former strikers by not
offering them the positions previously occupied by them or
substantially equivalent positions of employment. For the rea-
sons discussed below I conclude that this allegation has merit.
In Laidlaw Corp., the Board stated:
[E]conomic strikers who unconditionally apply for reinstate-
ment at a time when their positions are filled by permanent
replacements: (1) remain employees; and (2) are entitled to
full reinstatement upon the departure of replacements unless
they have in the meantime acquired regular and substantially
equivalent employment, or the employer can sustain his bur-
den of proof that the failure to offer full reinstatement was for
legitimate and substantial business reasons.
Id. at 1369–1370; see also Detroit Newspapers, 340 NLRB
1019 (If the former positions do not exist, the former strikers
are entitled to reinstatement in substantially equivalent posi-
tions.).
The record shows that the former strikers made an uncondi-
tional offer to return to work on July 10, 2002. (See GC Exh.

46 Another employee, Jose Rossner, testified that before the strike he
had chosen to work a particular shift so that he could tend to his father
who was experiencing medical problems. However, Rossner’s father
passed away prior to his reemployment, and Rossner did not testify that
he still had a shift preference. At any rate, within 5 days of returning to
work he was assigned to his prestrike shift.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD342
60; see also GC Exhs. 63, 64.) 47 During the following Sep-
tember and October, the Respondent hired at least six new em-
ployees to perform bargaining unit work at the Amelia facility.
Despite the former strikers’ unconditional offer to return to
work, and the requirements discussed in Laidlaw, the Respon-
dent did not offer any of these positions to the former strikers
who had performed bargaining unit work at the Amelia facility
prior to the strike. The Respondent contends that, Laidlaw
notwithstanding, it is not required to offer full reinstatement to
the former strikers when appropriate openings occur because
those individuals resigned their employee status on August 15
and 22 by refusing offers of reinstatement. In keeping with this
contention, the Respondent has treated the returning strikers not
as persons who “remained employees” under Laidlaw, but as
new employees who were required to fill out applications,
complete probationary periods, and work for a reduced, intro-
ductory, wage. For the reasons discussed above, I have rejected
the Respondent’s claims that it made valid offers of reinstate-
ment and conclude that the former strikers did not refuse any
such offers or resign their employment. Therefore, the Re-
spondent violated the Act by denying the former strikers their
rights under Laidlaw, both by failing to reinstate them when
appropriate openings occurred, and by treating them as new
hires rather than as persons who had “remained employees.”48
I conclude that the Respondent has violated Section 8(a)(3)
and (1) of the Act by treating the returning strikers as new
hires, and denying them reinstatement to their previous posi-
tions or substantially equivalent positions when such positions
became available after the employees made their unconditional
offer to return to work.
More Onerous Working Conditions
The complaint alleges that the Respondent violated section
8(a)(3) and (1) of the Act in the following manner:
Since on or about October 29, 2002, Respondent has
discriminated against the [former strikers] regarding their
terms and conditions of employment by imposing on them
more onerous and rigorous working conditions such as
lifting heavy feed bags.
I find this allegation facially ambiguous. The question I
have is “more onerous” than what—the positions the former

47 My view that the employees made an unconditional offer to return
on July 10 is not altered by the fact that later, on August 22, the em-
ployees refused the Respondent’s demand that the Union’s president (J.
Figueroa) be excluded from the discussions regarding the details of
their return. It is not for the Respondent to decide what official of the
collective bargaining representative will speak on behalf of the unit,
and the employees’ offer did not become conditional simply because
they insisted on their chosen representative. See supra, fn. 19. It is
unlawful for an employer to pressure former strikers to accept an unfair
labor practice as a condition of returning to work. See supra at fn. 45.
48 See Sunol Valley Golf Club, 310 NLRB 357, 373 (1993) (unlawful
to treat returning strikers as new hires who have to complete employ-
ment applications), enfd. sub nom. Ivaldi v. NLRB, 48 F.3d 444 (9th
Cir. 1995); Champ Corp., 291 NLRB 803, 808 (1988) (Employer vio-
lated the act by requiring returning striker to “execute an application
. . . and accept employment as a new employee.”), enfd. 933 F.2d 688
(9th Cir. 1990), cert. denied 502 U.S. 957 (1991).
strikers occupied before the strike or other positions that have
become available since they returned to work? The General
Counsel appears to have understood this allegation as meaning
the former, since it introduced extensive testimony comparing
the work that the former strikers did before the strike with the
work they did after the strike. That evidence did show that in
many cases the returning strikers were assigned tasks that were
more onerous, sometimes considerably more onerous, than
those they performed before the strike. This comparison is be-
side the point, however, since the alleged discriminatees were
economic strikers whom the Respondent lawfully replaced on a
permanent basis before the strikers made an unconditional offer
to return to work. Therefore, the Respondent was not required
to reinstate the former strikers to their previous positions, or
substantially equivalent positions, until such openings occurred,
regardless of how onerous the former strikers found their cur-
rent working conditions.
Perhaps the General Counsel could have made out a viola-
tion using evidence that the Respondent assigned the returning
strikers to positions that were more onerous than other positions
that have been available since the former strikers were re-
employed. However, the record does not contain such evi-
dence. The General Counsel did not show what other positions
have opened or been filled since the former strikers returned to
work and certainly has not shown how onerous or rigorous the
duties and responsibilities of any such positions were. Given
this defect in proof, it is possible that the assignments the for-
mer strikers have received since returning to work were the
least onerous ones available, or even the only ones available.
Moreover, the General Counsel did not show that the post-
strike assignments were unnecessary to the Respondent’s op-
erations or otherwise prove that the assignments were invented
to punish the returning strikers. On the record in this case I
cannot conclude that the Respondent assigned the returning
strikers to positions that were more onerous or rigorous than
other available positions, much less that it made such assign-
ments for discriminatory reasons.
For these reasons, I conclude that the allegation that the Re-
spondent violated Section 8(a)(5) and (1) by discriminatorily
assigning the returning strikers to more onerous and rigorous
working conditions should be dismissed.49

49 This conclusion does not affect the previous finding that the Re-
spondent has violated the Act by failing to offer the former strikers
reinstatement to their pre-strike positions, or substantially equivalent
positions, when such openings occurred. This is true regardless of
whether the former positions were less onerous than their post-strike
positions.
In its brief the Respondent argues that after the General Counsel
“fully rested his case,” the General Counsel was permitted “to resume
with his case in order to supply the evidence needed to avoid” dismissal
of the part of the case regarding allegations of more onerous working
conditions. GC Br. (II) at 2–3. Contrary to the Respondent’s assertion,
at the time the Respondent moved to dismiss, the General Counsel
made clear that it was not resting because Juarbe (director of human
resources), who was being examined by the General Counsel as an
adverse witness pursuant to Fed.R.Evid. 611(c), had become unavail-
able in the midst of his testimony, and the completion of that examina-
tion was required. I offered the Respondent the option of waiting until
the General Counsel fully rested before stating the basis for the motion
PAN AMERICAN GRAIN CO. 343
Respondent’s Refusal to Provide the Union with
Employees’ Names and Positions
The complaint alleges that the Respondent violated Section
8(a)(5) and (1) by refusing the Union’s August 20, 2002, re-
quest for the names and positions of employees at the Amelia,
Corujo, Muelle, and Anexo Romana facilities. An employer is
required to provide information that is requested by a union and
is relevant to the union’s performance of its statutory duties and
responsibilities in representing employees. NLRB v. Acme
Industrial Co., 385 U.S. 432, 435–437 (1967). The standard
for assessing relevance is a liberal, discovery-type standard. Id.
at 437; see also Ohio Power Co., 216 NLRB 987, 991 (1975),
enfd. 531 F.2d 1381 (6th Cir. 1976).
The Respondent argues that the individuals about whom the
Union was seeking information were striker replacements. This
argument does not relieve it of the obligation to provide the
information because the Board has repeatedly stated that a un-
ion represents striker replacements in the bargaining unit and is
“presumptively entitled to the names and payroll records of
bargaining unit employees, including strike replacements.”
Page Litho, Inc., 311 NLRB 881, 882 (1993), enf. granted in
part, denied in part mem. 65 F.3d 169 (6th Cir. 1995); see also
Grinnell Fire Protection Systems Co., 332 NLRB 1257, 1257–
58 (2000); Central Management Co., 314 NLRB 763, 769 and
780 (1994); Chicago Tribune Co., 303 NLRB 682 (1991), enf.
denied 965 F.2d 244 (7th Cir. 1992); and Trumbull Memorial
Hospital, 288 NLRB 1429 (1988). The Respondent has for-
warded no colorable basis for overriding the presumption that
the Union is entitled to the information at issue here. An em-
ployer may justify the refusal to supply information about strike
replacement workers by showing either “a likelihood of a clear
and present danger to the employees involved,” Burkart Foam,
283 NLRB 351, 356 (1987), enfd. 848 F.2d 825 (7th Cir. 1988),
or a “clear and present danger that the information would be
misused,” Page Litho, Inc., 311 NLRB at 882. The Respondent
has shown neither here. In particular, the record did not show
that the Union or the strikers had engaged in any unlawful con-
duct directed at the replacement workers. No replacement
workers were called to testify that they had concerns about their
safety, or that they would have objected to the Respondent
supplying their names and positions to the bargaining represen-
tative of the unit in which they were working. I do not believe
that the Respondent has shown any likelihood or danger of
abuse whatsoever, and certainly it has not shown a “clear and
present danger” of abuse. Thus, the Union’s presumptive enti-
tlement to the requested information regarding the striker re-
placements is controlling.50

to dismiss, but the Respondent chose to press the motion during the
period that Juarbe was unavailable. At any rate, in light of my conclu-
sion that the allegation regarding more onerous working conditions
should be dismissed, the Respondent’s contention is moot.
50 Even assuming that the Union’s entitlement to the information did
not arise until the strike ended, that would not change the result here
since the record shows that the strike had ended at the time of the in-
formation request. The Union requested the information on August 20,
well after the Union abandoned the strike by making an unconditional
offer to return to work. Moreover, even after the former strikers actu-
ally returned to work in late October, the Respondent continued to
Even if the information sought by the Union was not pre-
sumptively relevant to the representation of the strike replace-
ments, it would still be relevant to the representation of the
former strikers. In response to the Union’s offer to return to
work, the Respondent took the position that 15 of the former
strikers did not have to be reinstated because they had been laid
off during the strike due to the elimination of positions. The
information request makes clear that one reason the Union is
asking for the names and positions of current employees is to
permit it to assess the Respondent’s assertion that positions had
been eliminated. The Union was entitled to the requested in-
formation for that purpose. See Burkart Foam, supra at 356
(“[U]nions are entitled to the names, addresses, and seniority
dates of strike replacements as well as information relating to
the reasons for terminating strikers and relating to their re-
call.”). Such information was plainly relevant to the Union’s
performance of its statutory duties and responsibilities in repre-
senting the 15 former strikers who the Respondent had laid off
and, therefore, the Respondent was legally required to provide
that information.
In a letter dated November 27, 2002, the Respondent pro-
vided some of the information sought by the Union. The Re-
spondent’s November 27 letter supplied the names of the em-
ployees, identified the facilities where they were working, and
stated that all were “production” employees, but it did not iden-
tify the employees’ positions, as requested by the Union.51 The
Union is entitled to information regarding the positions occu-
pied by these bargaining unit employees for the purposes dis-
cussed above, and the Respondent’s refusal to provide that
information is in violation of the Act. Moreover, the informa-
tion that was contained in the November 27 letter was provided
after a delay of 3 months. The Respondent has provided no
evidence showing that the information requested was volumi-
nous or particularly difficult or time-consuming to gather. I
conclude that the Respondent delayed unreasonably by waiting
3 months to supply the information that it communicated in its
November 27 letter. An employer violates the Act when it
unreasonably delays providing information to which a collec-
tive bargaining representative is entitled. Valley Inventory
Service, 295 NLRB 1163, 1166 (1989).
I find that the Respondent violated Section 8(a)(5) and (1) of
the Act by refusing the Union’s August 20, 2002 request that it
state the positions of employees at the Amelia, Corujo, Muelle,
and Anexo Romana facilities, and by unreasonably delaying the
provision of the other information requested about those em-
ployees.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.

withhold information requested regarding the positions of employees.
Thus the Respondent withheld the information after it was clear that the
strike had ended, and the presumption in favor of disclosing the re-
quested information was triggered.
51 For the reasons discussed earlier, I reject the Respondent’s conten-
tion that the unit employees did not have “positions.” See supra at fn.
26.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD344
2. The Union is labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) by dis-
criminatorily refusing to consider Domingo Garcia’s January
2002 request for leave because he participated in protected
activity by striking.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by discontinuing its payments to the medical plans for Jose
Rossner Figueroa and Alberto Ortiz Serrano because the em-
ployees engaged in protected activity by striking.
5. The Respondent violated Section 8(a)(5) and (1) of the
Act by implementing the February 27 layoff without giving the
Union adequate notice and reasonable opportunity to bargain.
6. The Respondent violated Section 8(a)(3) and (1) of the
Act by reducing the wages of the returning strikers.
7. The Respondent has violated Section 8(a)(3) and (1) of the
Act by treating the returning strikers as new hires, and denying
them reinstatement to their previous positions or substantially
equivalent positions when such positions became available after
the employees made their unconditional offer to return to work.
8. The Respondent violated Section 8(a)(5) and (1) of the
Act by refusing the Union’s August 20, 2002 request that it
state the positions of employees at the Amelia, Corujo, Muelle,
and Anexo Romana facilities, and by unreasonably delaying the
provision of the other information requested about those em-
ployees.
9. The Respondent was not shown to have committed the
other unfair labor practices alleged in the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. With respect to the Respondent’s
unlawful failure to provide the Union with notice or an oppor-
tunity to bargain over the February 27 layoff, I find that a full
backpay remedy is appropriate. The Board has held that “the
traditional and appropriate Board remedy for an unlawful uni-
lateral layoff based on legitimate economic concerns includes
ordering the employer to bargain over the layoff decision and
the effects of that decision, reinstating the laid-off employees,
and requiring the payment to the laid-off employees of full
backpay, plus interest, for the duration of the layoff.” Ebenezer
Rail Car Services, Inc., 333 NLRB 167 fn. 5 (2001); see also
L.W.D., Inc., 335 NLRB 241 fn. 2 (2001), enf. granted in part,
order set aside in part 76 Fed. Appx. 73 (6th Cir. 2003), and
Lapeer Foundry & Machine, 289 NLRB 952, 955–956 (1988).
Since the employees were engaged in a strike at the time the
layoff was instituted, the backpay period in this case should
begin to run at the time of the Union’s unconditional offer to
return to work on July 10, 2002, not as of the time the layoff
was initiated on February 27.
With respect to the unlawful reduction in the wages of the
former strikers, I find that the former strikers are entitled to
backpay for the difference between what they have actually
been paid since returning to work with the Respondent and the
wages they were being paid prior to the strike plus any general
increases. As discussed above, the record shows that when the
Respondent reemployed the former strikers, it discriminatorily
paid them significantly lower wages than it did other hirees
who had not participated in the strike. There is uncertainty,
however, about how much the Respondent actually would have
paid the former strikers if it had not discriminatorily reduced
their wages. One cannot say with confidence that the Respon-
dent would have paid them the same wages paid to the non-
strikers newly hired during the relevant time frame since the
former strikers had specialized skills, experience and training
relevant to the Respondent’s operation. Although the matter is
not free from doubt, there is some basis for believing that, if not
for its unlawful motivation, the Respondent would have evalu-
ated the returning strikers’ skills, experience and training as it
did before the strike, and offered them their prestrike wages,
plus any general increases. The Board is not infrequently faced
with situations where it is impossible to know with certainty
what would have happened in the absence of an employer’s
unfair labor practices, and in such situations the Board has
broad discretion to devise a remedy that effectuates the pur-
poses of the Act. International Paper Co., 319 NLRB 1253,
1278 (1995), enf. denied 115 F.3d 1045 (D.C. Cir. 1997); see
also Bagel Bakers Council of Greater New York v. NLRB, 555
F.2d 304, 305 (2d Cir. 1977); NLRB v. Carpenters Local 180,
433 F.2d 934, 935 (9th Cir. 1970). Under such circumstances,
the backpay claimant should receive the benefit of any doubt
rather than the respondent, the wrongdoer responsible for the
existence of any uncertainty and against whom any uncertainty
must be resolved. Weldun International, Inc., 340 NLRB 666,
668 (2003); La Favorita, Inc., 313 NLRB 902, 903 (1994),
enfd. 48 F.3d 1232 (10th Cir. 1995). Since the uncertainty
about what the Respondent would actually have paid the return-
ing strikers was created by the Respondent’s own unlawful
conduct, that uncertainty should be resolved against the Re-
spondent, not against the victims of the unlawful conduct.
“The most elementary conceptions of justice and public policy
require that the wrongdoer shall bear the risk of the uncertainty
which his own wrong has created.” Bigelow v. RKO Radio
Pictures, 327 U.S. 251, 265 (1946); see also International Pa-
per Co., supra at 1278 (same).
All backpay provided by my recommended order should be
reduced by the amount of net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and increased by
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended52
ORDER
The Respondent, Pan American Grain Co., Inc., and Pan
American Grain Manufacturing Co., Inc., Guaynabo, Puerto
Rico, its officers, agents, successors, and assigns, shall
1. Cease and desist from

52 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
PAN AMERICAN GRAIN CO. 345
(a) Discriminatorily refusing to consider Domingo Garcia’s
January 2002 request for leave because he engaged in protected
activity by striking.
(b) Discontinuing its payments to the medical plans for Jose
Rossner Figueroa and Alberto Ortiz Serrano because employees
engaged in protected activity by striking.
(c) Laying off unit employees without first giving adequate
notice of its intention to do so to the Union and affording the
Union an opportunity to bargain in good faith over the layoff
and its effects.
(d) Discriminatorily reducing the wages of the former strik-
ers because they engaged in a strike or other protected activity.
(e) Treating the former strikers53 as new hires and denying
them reinstatement to their prestrike positions or substantially
equivalent positions when such positions become available.
(f) Refusing the Union’s request for a statement of the posi-
tions of employees at the Respondent’s Amelia, Corujo,
Muelle, and Anexo Romana facilities, and unreasonably delay-
ing the provision of information relevant to the Union’s bar-
gaining responsibilities.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Consider Domingo Garcia’s January 2002 request for
leave and provide him with backpay for any paid leave that he
requested and for which he had accrued the necessary benefit.
(b) Make Jose Rossner Figueroa and Alberto Ortiz Serrano
whole by reimbursing them for any losses that occurred as a
result of the Respondent’s unlawfully discontinuing it payments
to their medical plans.
(c) On request, bargain with the Union concerning the deci-
sion to lay off employees on February 27, 2002, and the effects
of that decision.
(d) Reinstate the employees laid off on February 27, 2002,54
and make them whole, in the manner set forth in the remedy
section of the decision, for loss of pay and other employment
benefits suffered as a result of its unlawful conduct.
(e) Treat the former strikers as persons who have remained
employees since the start of the strike and provide them with
reinstatement to their previous positions, or substantially
equivalent positions, that have or will become available subse-
quent to the unconditional offer to return to work on July 10,
2002.

53 By “former strikers” I refer to the 41 individuals employees listed
above in fns. 31 and 32, with the exception of Geovanni Perez Vellez,
for whom the General Counsel is no longer maintaining this claim.
54 These are the individuals listed supra in fn. 31.
(f) Make the former strikers whole for any loss of earnings
and/or other benefits that they suffered as a result of the dis-
criminatory reduction in their wages and their denial of rein-
statement in the manner set forth in the remedy section of the
decision.
(g) Immediately furnish the Union with the names of all em-
ployees working for the Respondent in the appropriate unit, as
well as a statement of the specific position (e.g., welder, elec-
trician, mechanic, pellet mill operator, batcher, mixer) held by
each employee, as requested by the Union in its letter of No-
vember 27, 2002.
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(i) Within 14 days after service by the Region, post at all of
its facilities in Guaynabo, Puerto Rico, and Bayamon, Puerto
Rico, in English and Spanish, copies of the attached notice
marked “Appendix.”55 Copies of the notice, on forms provided
by the Regional Director for Region 24, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since January
2002.
(j) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

55
If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”