Pan American Grain Co.

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 205 (N.L.R.B. 2004)

PAN AMERICAN GRAIN CO.
343 NLRB No. 32
205
Pan American Grain Co., Inc., and Pan American
Grain Manufacturing Co., Inc. and Congreso de
Uniones Industriales de Puerto Rico. Cases 24–
CA–8570, 24–CA–8579, 24–CA–8624, 24–CA–
8629, 24–CA–8637, 24–CA–8747, 24–CA–8807,
24–CA–8893, and 24–CA–8974–1
September 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND MEISBURG
On May 23, 2003, Administrative Law Judge George
Alemán issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an exception and a supporting 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 conclusions2
and to adopt his recommended Order as modified.
I. INTRODUCTION
The central issue presented is whether the Respondent
violated Section 8(a)(5) and (1) of the Act by barring the
Union’s chosen representative from its facilities and by
refusing to bargain with him, allegedly because of his
misconduct.3 In his decision, the judge found that the
Respondent’s actions violated the Act because the union
representative’s misconduct was not so serious that his
presence would render good-faith bargaining impossible
or futile. For the reasons that follow, we disagree with
the judge and reverse his finding.
II. FACTUAL BACKGROUND
The relevant facts, as set forth more fully in the
judge’s decision, are as follows.

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.
2 We correct the judge’s inadvertent omissions from the recom-
mended Order and notice and amend the recommended Order and
notice to include a requirement that the Respondent make whole em-
ployees for any monetary losses suffered as a result of the Respon-
dent’s unlawful discontinuation of the $500 bonus payments, and to
reflect the judge’s finding that the Respondent violated Sec. 8(a)(5) and
(1) by unlawfully encouraging employees to bypass the Union and deal
directly with the Respondent.
3 This is the only unfair labor practice finding to which the Respon-
dent has excepted.
The Respondent is engaged in the importation, manu-
facture, and sale of grains, animal feed, and other related
products. Since 1987, the Union has been the exclusive
collective-bargaining representative of the Respondent’s
production and maintenance employees. Since 1992,
José A. Figueroa has been the Union’s president and its
designated representative for administering and negotiat-
ing agreements and for handling grievance and arbitra-
tion matters with the Respondent.
On May 27, 1998, following an incident in which Fi-
gueroa allegedly threatened to “tear off” the head of a
supervisor and invited him outside to fight, the Respon-
dent informed Figueroa that he would no longer be al-
lowed access to any of its facilities. When Figueroa re-
ceived the May 27 letter, he complained to the Respon-
dent that banning him from the facilities was a violation
of the parties’ collective-bargaining agreement, which
states that union representatives “will have access to the
offices and the premises” of the Respondent “to deal
with Union matters.” After May 27, Figueroa continued
to conduct union business in the Respondent’s adminis-
trative offices but no longer met with employees in the
Respondent’s facilities.
Approximately 2 years later, Figueroa’s conduct was
again called into question. On May 9, 2000,4 during a
phone conversation with the Respondent’s human re-
sources director, Luis Juarbe, Figueroa became furious
over Juarbe’s position concerning an information re-
quest. Figueroa told Juarbe that if he would not change
his position, they would have to resolve their pending
issues by “exchanging blows.” In response to hearing
other voices coming from Figueroa’s end of the conver-
sation, Juarbe asked whether Figueroa had put their con-
versation on speakerphone; Figueroa denied this and
stated that he was alone. Juarbe then asked if Figueroa’s
statement about exchanging blows was intended as an
invitation to fight. Figueroa responded, “You take it any
way you want to.”
On May 12, an anonymous recorded message was left
on Juarbe’s answering machine. The message began
with an unidentified voice stating, “One has to be killed.
One has to be taken away, whichever, and I will start
with the trunk. I will watch him go through.” The next
voice on the tape, subsequently identified as Figueroa’s,
replied, “That’s the son of a bitch, Jose Gonzalez. That’s
the trunk.”
Juarbe immediately reported the message to Jose Gon-
zalez, the Respondent’s president, who instructed Juarbe
that the Respondent should have no further contact or
communications with Figueroa. The Respondent also

4 Unless otherwise noted, all subsequent dates refer to 2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD206
filed a criminal complaint regarding the threatening
phone message.
On May 19, Juarbe sent a letter to the Union’s board of
directors, notifying them that due to Figueroa’s behavior,
the Respondent would no longer have any contact or
dealings with Figueroa.5 The letter further advised that
while Figueroa was prohibited from entering its facilities,
any other union officials were “welcome to come, visit,
bargain, and communicate with us.”
III. THE JUDGE’S DECISION
The judge found, inter alia, that the Respondent vio-
lated Section 8(a)(5) and (1) by denying Figueroa access
to its facilities and by refusing to bargain with him as the
Union’s chosen representative. The judge’s decision was
based upon his conclusion that “Figueroa’s misconduct,
while objectionable, was not so serious as to have pre-
vented the Respondent from engaging in meaningful
negotiations with the Union through him.” For the rea-
sons that follow, we disagree with the judge’s conclusion
and find that the Respondent’s decisions to exclude Fi-
gueroa from its facilities and to refuse to meet with him
did not violate the Act.
Analysis
The Board has long recognized that “each party to a
collective-bargaining relationship has both the right to
select its representative for bargaining and negotiations
and the duty to deal with the chosen representative of the
other party.” Fitzsimmons Mfg. Co., 251 NLRB 375, 379
(1980), enfd. sub nom. Auto Workers v. NLRB, 670 F.2d
663 (6th Cir. 1982). A party’s right to select its repre-
sentative, however, is not absolute, and the other party is
relieved of its duty to deal with a particular representa-
tive when that representative’s presence would render
collective bargaining impossible or futile. Id. The test is
whether there is “persuasive evidence that the presence
of the particular individual would create ill will and
make good-faith bargaining impossible.” KDEN Broad-
casting Co., 225 NLRB 25, 35 (1976).
The Board’s analysis of whether an individual repre-
sentative has engaged in conduct such that his or her
presence would make good-faith bargaining “impossi-
ble” is essentially a factual inquiry. In the instant case,

5 The Respondent also filed charges with the Board asserting that the
Union, through Figueroa, had violated Sec. 8(b)(1)(A) and (B) of the
Act by implicitly threatening Juarbe on May 9 and by failing to dis-
avow, and thereby supporting, the May 12 threat to “assault and/or kill”
Gonzalez. These charges resulted in Case 24–CB–2074, which was
decided on summary judgment when the Union failed to file an answer
to the complaint. The Board’s decision was subsequently enforced by
an order of the United States Court of Appeals for the First Circuit.
NLRB v. Congreso de Uniones Industriales de Puerto Rico, No. 02–
1197 (1st Cir. May 7, 2002).
the facts, considered as a whole, indicate that this stan-
dard has been met.
As an initial matter, we note, as the judge discussed,
that Figueroa’s misconduct in 2000 occurred against the
background of his already troubled history with the Re-
spondent. It is undisputed that in May 1998, the Re-
spondent barred Figueroa from all or most of its facilities
based on an allegedly similar incident. The Respondent
could reasonably consider the 1998 bar in conjunction
with the incidents in 2000 in deciding that a complete bar
was warranted.6 Furthermore, the Respondent’s 1998 bar
against Figueroa was still in effect in 2000, when the
events at issue took place.
In addition, we find it significant that Figueroa actively
participated in making an apparent death threat against
the Respondent’s president, Jose Gonzalez. The serious-
ness of such a threat, considered in the context of Figue-
roa’s prior misconduct as well as his May 9 telephone
conversation with Luis Juarbe, would reasonably create
significant ill will such that good-faith bargaining would
be impossible if the Respondent were required to bargain
with Figueroa as the Union’s representative. Accord-
ingly, we find that the Respondent’s decisions to bar Fi-
gueroa from its premises and to refuse to bargain with
Figueroa did not violate Section 8(a)(5) and (1) of the
Act.
Contrary to the judge’s decision, we do not find that
Figueroa’s participation in the apparent death threat was
limited to “a failure to disavow someone else’s threat.”
Rather, we find that, by identifying Gonzalez by name as
the person to be killed, Figueroa played an active role in
making the apparent death threat.
The judge found that the seriousness of Figueroa’s
threats was lessened by the fact that they were made on
the telephone and were not made in the presence of em-
ployees. The evidence is ambiguous on the latter point.
However, we need not resolve this factual issue. In view
of the serious nature of the threat, we find it irrelevant
whether employees heard it, and it is similarly irrelevant
that it was made on the telephone.
Finally, we do not share the judge’s view that the fact
that the Respondent “met and dealt with Figueroa on
several occasions after the May 12 incident on matters
such as arbitration hearings and contract negotiations”
refutes the Respondent’s contention that Figueroa’s pres-
ence would prevent good-faith bargaining. The meetings

6 The fact that the prior incident involving Figueroa occurred 2 years
earlier does not preclude the Board from considering its lingering effect
on the relationship between the Respondent and Figueroa. See, e.g.,
King Soopers, Inc., 338 NLRB 269 (2002) (misconduct occurring 4
years earlier was sufficient to establish that representative’s presence
would preclude good-faith bargaining).
PAN AMERICAN GRAIN CO. 207
occurred “several days” after the May 9 and 12 incidents.
Since the Respondent said on May 19 that it would no
longer deal with Figueroa, it is reasonable to assume that
these meetings occurred between May 9–12 and 19,
when the Respondent implemented its decision to bar
Figueroa from its facilities. It was not unreasonable for
the Respondent to take 7–10 days to make such an im-
portant decision, and it was not unreasonable to deal with
Figueroa while the matter was being considered. Fur-
ther, the evidence does not establish that the Respondent
was able to engage in good-faith bargaining in the pres-
ence of Figueroa after the May 9 and 12 incidents. To
the contrary, the evidence establishes that, on those occa-
sions when the Respondent met with Figueroa to negoti-
ate after the May 9 and 12 incidents, the meetings were
conducted by a mediator and the parties remained in
separate rooms.
Accordingly, we conclude, on all the evidence, that the
Respondent did not violate Section 8(a)(5) and (1) of the
Act by refusing to meet with Figueroa and by barring
Figueroa from its facilities.
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.,
Guaynabo, 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(b).
“(b) Refusing to provide the Union with requested in-
formation, which it needs to comply with its statutory
obligations as the unit employees’ exclusive bargaining
representative; refusing to deduct union dues from unit
employees Alberto Franco Mateo, Marcelo Franco
Villegas, Daniel Castro, and Jorge Ortiz; and urging em-
ployees to bypass the Union and bargain directly with the
Respondent.”
2. Substitute the following for paragraph 2(b).
“(b) Make employees covered by the Amelia collec-
tive-bargaining agreement whole for any loss suffered by
the unlawful discontinuance of the guaranteed $500 an-
nual bonus for the years 2001 to the present, plus inter-
est.”
3. 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 vio-
lated 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 make unilateral changes in the terms and
conditions of employment of our employees who are
represented by Congreso de Uniones Industriales de
Puerto Rico, without first notifying the Union and afford-
ing it an opportunity to bargain over any such changes.
WE WILL NOT fail and refuse to provide the Union with
requested information that is relevant to and necessary
for the Union in the performance of its statutory repre-
sentative duties.
WE WILL NOT refuse to deduct union dues for unit em-
ployees Alberto Franco Mateo, Marcelo Franco Villegas,
Daniel Castro, and Jorge Ortiz.
WE WILL NOT attempt to bypass the Union by encour-
aging employees to bargain directly with us.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of their Section 7 rights by
urging them to abandon the Union and promising them
unspecified benefits if they do so, by telling them that the
Union is bankrupt, or by telling them that the filing of
charges with the Board would be a futile gesture.
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 rescind the March 13, 2000 unilateral ban we
imposed on employee use of cell phones in our facilities;
the March 1, 2000 training program we unilaterally insti-
tuted for the CSV-40 machines; and our unilateral deci-
sion to discontinue the $500 bonus for employees, and
WE WILL notify and, at the Union’s request, bargain over
these or any other changes we wish to make in the unit
employees’ terms and conditions of employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD208
WE WILL furnish the Union with the information it re-
quested in its August 16, 2000 information request.
WE WILL, within 14 days from the date of the Order,
reassign employees Javier Garcia and Luis Perez to the
A-skill classification, without prejudice to the seniority
or other rights and privileges previously enjoyed.
WE WILL make Javier Garcia and Luis Perez whole for
any loss of wages or other benefits they may have suf-
fered due to their unlawful demotion to the unskilled
classification, with interest.
WE WILL make employees covered by the Amelia col-
lective-bargaining agreement whole for our failure to pay
the guaranteed $500 annual bonus for the years 2001 to
the present, plus interest.
WE WILL accept the dues deduction applications from
unit employees Alberto Franco Mateo, Marcelo Franco
Villegas, Daniel Castro, and Jorge Ortiz, and begin de-
ducting and remitting such dues to the Union.
PAN AMERICAN GRAIN CO., AND PAN
AMERICAN GRAIN MANUFACTURING CO., INC.
Miguel Nieves, Esq. and Vanessa Garcia, Esq., for the General
Counsel.
Ruperto J. Robles, Esq. and Rafael Lopez, Esq., for the Re-
spondent.
Hector Santos, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE ALEMÁN, Administrative Law Judge. A trial in the
above-entitled matter was held in San Juan, Puerto Rico, from
July 29–August 2 and 26–30, 2002, following the filing of
charges by Congreso de Uniones Industriales de Puerto Rico
(the Union), and issuance of a consolidated complaint and no-
tice of hearing by the Regional Director for Region 24 of the
National Labor Relations Board (the Board).1 The complaint
alleges that Pan American Grain Co., Inc., and Pan American
Grain Manufacturing Co., Inc. (the Respondent) has, in various
manners, violated Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act).2 The Respondent, in a timely filed
answer, denies having engaged in any unlawful conduct.
At trial, all parties were afforded a full and fair opportunity
to examine and cross-examine witnesses, to submit oral and
written evidence, to argue orally on the record, and to file post-
trial briefs. On the entire record, including my observation of

1 Copies of the unfair labor practice charges filed by the Union in
this case, along with copies of all pleadings and related documents filed
by the parties are contained in GC Exh. 1. Exhibits offered into evi-
dence by the General Counsel and the Respondent are hereinafter iden-
tified respectively as “GC Exh.” and “R. Exh.” followed by the exhibit
number. Reference to testimonial evidence is identified by the tran-
script volume (e.g., I–IX) followed by the page number.
2 Pan American Grain Co., Inc. and Pan American Grain Manufac-
turing Co., Inc. constitute a single-integrated business enterprise and
are a single employer within the meaning of the Act.
the demeanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Puerto Rico corporation, with offices lo-
cated in Guaynabo, Puerto Rico, is engaged in the importation,
manufacture, and sale of grains, animal feed, and other related
products. During the 12-month period preceding issuance of
the complaint, the Respondent, in the course and conduct of its
business operations, purchased and received at its Arroz Rico
facility goods valued in excess of $50,000 directly from points
and places outside the Commonwealth of Puerto Rico. The
Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Allegations
As noted, the consolidated complaint alleges numerous vio-
lations of Section 8(a)(5) and (1) of the Act. The 8(a)(5) con-
duct complained of includes allegations that the Respondent
sought to bypass the Union and deal directly with employees
regarding their terms and conditions of employment; that it
unilaterally implemented procedures for employees to request
training on its production equipment; unilaterally established a
ban on use of cell phones/beepers in the workplace; failed and
was refusing to include certain employees in the bargaining unit
represented by the Union and to deduct their union dues; uni-
laterally changed the job classifications and reduced the wages
of employees Javier Garcia, Luis M. Pérez, and Rodolfo
Rodríguez and unilaterally changed the work schedule of an
employee in contravention of his seniority rights; failed to pay
certain unit employees a contractually required annual payment
of $500; assigned bargaining unit work to nonunit employees;
refused to provide the Union with requested relevant and neces-
sary information; and refused to meet and bargain with José
Alberto Figueroa, the Union’s designated representative, with
respect to grievances and denied him access to its facilities.
The 8(a)(1) conduct includes allegations that the Respondent
interfered with the employees’ Section 7 rights by telling them
it would not negotiate with union officials because they were
ill-mannered; that the Union was bankrupt; that filing griev-
ances was a futile gesture; and by suggesting that employees
abandon the Union.
B. Factual Background
The Respondent operates three main facilities known as the
“Arroz Rico” plant, the “Amelia” plant, and the “Corujo”
plant.3 It also utilizes a shipping vessel, known as “La Zorra,”
as a storage facility. At all relevant times herein, its manage-

3 Other smaller facilities operated by the Respondent and of rele-
vance here include a warehouse known as ALCA, situated adjacent to
the Arroz Rico plant, and a grain elevator known as Silo 12, which is
also situated in the vicinity of the Arroz Rico plant.
PAN AMERICAN GRAIN CO. 209
rial/supervisory staff, all admitted statutory supervisors and
agents as defined by the Act, included Company President Jose
Gonzalez Freyre (Gonzalez), Human Resources Director Luis
Juarbe, Plant Manager Antonio Jacobs, Operations Manager
Geraldo Curet Salim (Curet), Maintenance Manager Noel Ba-
jandas, and Supervisor Eduardo Aldeano.
Since June 11, 1987, the Union has been the exclusive col-
lective-bargaining representative of the Respondent’s produc-
tion and maintenance employees, and has, since then, main-
tained successive collective-bargaining agreements with the
Respondent. Since 1992, José A. Figueroa has been the Un-
ion’s president and its designated representative for purposes of
administering and negotiating agreements with the Respondent,
and for handling grievance and arbitration matters.4 The parties
most recent agreements covered employees in the Arroz Rico,
Corujo, and Amelia facilities under two separate agreements,
and were effective from March 4, 1998, to March 4, 2002 (see
GC Exh. 2; GC Exh. 3).5
The incidents and conduct alleged in the complaint as viola-
tions of the Act all occurred during 2000 and 2001. A discus-
sion of the facts underlying the allegations, and my findings
with respect thereof, follows.
1. Figueroa’s denial of access to Respondent’s facilities
Since 1992, Figueroa has dealt with different managers and
supervisors in the course of administering the parties’ agree-
ments, including Gonzalez, Juarbe, Curet, Jacobs, and others,
as well as, Respondent’s legal counsel, Ruperto Robles, and has
done so through correspondence, phone calls, and by visiting
the company premises. As to the latter, article III of the collec-
tive-bargaining agreement required Figueroa or any other union
representative wishing to visit the Respondent’s premises to
first notify the plant manager or his designee of his intent.6

4 Figueroa has worked for the Union since 1978. Figueroa’s father,
Arturo Figueroa (A. Figueroa), apparently was the Union’s former
president. The record reflects that A. Figueroa assisted his son, Figue-
roa, in negotiations with the Respondent (VIII.527–528).
5 The Arroz Rico and Corujo production and maintenance employees
were covered by the agreement (the “Arroz Rico” contract) received
into evidence as GC Exh. 2, and the Amelia plant employees were
covered under GC Exh. 3, the “Amelia” contract. Both agreements
group employees into three separate classifications: A-skilled, B-
skilled, and nonskilled. (See GC Exhs. 2–3, art. XIX.). At the Amelia
plant, employees in the A-skilled classification include “mechanics,
electricians, welders, heavy equipment, and finger lift operators (see
GC Exh. 3, art. XIX). Given their higher skills, employees classified as
A-skilled receive a higher hourly wage than employees in the other
classifications. For reference purposes, and as so designated in com-
plaint par. 6, the Amelia plant employee unit is herein described as unit
A, and the Arroz Rico plant employee unit as unit B. The Arroz Rico
plant handles Respondent’s rice-producing operation; the Amelia plant
is involved in the production of animal feed.
6 Art. III, sec. 2 of the parties’ agreements reads as follows:
The Union shop steward and the [Union] representatives will have ac-
cess to the offices and the premises and the work shops of the Com-
pany to deal with Union matters and they may do so, if they so wish,
accompanied by their legal advisors. These visits will be made during
work hours as long as they notify the plant manager and/or the person
designated by him of their wish and need to visit the plant. The man-
ager or authorized representative may accompany the [Union] repre-
On May 27, 1998, Figueroa received written notice from Re-
spondent’s then human resources director, Ada Martinez, that
he was no longer allowed access “to any of the [Respondent’s]
facilities and/or subsidiaries as an individual” because of an
incident that occurred during the week ending May 22, 1998
(GC Exh. 4; I: 44). The incident in question involved an en-
counter Figueroa had on May 19, 1998, with Mechanics Super-
visor Marcos Figueroa as the former sought to enter the Arroz
Rico facility. Figueroa explained that on that occasion, Marcos
Figueroa, in an aggressive tone, told Figueroa he could not
enter the facility without asking permission to do so. Figueroa
disagreed, stating that the contract only required notification to,
not permission from, the Respondent of his intent to visit the
plant.7 Figueroa claims that during the incident, Marcos Figue-
roa made flailing gestures with his hands and, at one point,
actually hit him and invited Figueroa to step outside to fight.
The incident, according to Figueroa, ended with the interven-
tion of a plant manager (Tr. 47).
Neither Marcos Figueroa nor Martinez was called to testify.
The Respondent, however, elicited testimony from Bajandas
who stated that he was present during Figueroa’s encounter
with Marcos Figueroa. Bajandas’ version is that on May 19,
1998, he was present when he heard Marcos Figueroa tell Fi-
gueroa he was not allowed to enter the facility without permis-
sion from a supervisor, and that Figueroa responded that he did
not need anyone’s permission, that he could enter and leave the
plant when he wanted. Bajandas described Figueroa as being
upset during this incident, and that Marcos Figueroa remained
calm. At one point, Bajandas claims, Figueroa threatened to
“tear off” Marcos Figueroa’s head, and invited the latter to step
outside to fight. Bajandas recalls Marcos Figueroa asking Fi-
gueroa if his remark was intended as a threat, and Figueroa
responding that it was, and that if he didn’t like it, they could
work it out, but that in any event, he was still going to tear off
Marcos Figueroa’s head. According to Bajandas, another man-
ager, Luis Ricardo Rivera, entered at that point and informed
Figueroa that he would have to follow company rules. Bajan-
das claims that as he was leaving, Figueroa remarked that Re-
spondent’s managerial personnel, including Gonzalez, viewed
themselves as “gods.” (VII. 340–345).
Bajandas concedes that he never saw Figueroa actually as-
sault Marcos Figueroa during this incident.8 For his part, Fi-
gueroa denied Bajandas’ claim that he threatened Marcos Fi-
gueroa during that incident, or that he had not followed the

sentatives during his visit. It is understood that if there is no security
guard at the gate, the [Union] officer may enter the office but he or she
must immediately identify himself or herself with the supervisor of the
department that he wishes to visit and inform him about his need to
visit the department.
7 A plain reading of art. III, sec. 2 appears to support Figueroa’s po-
sition, for the provision makes no mention of permission being required
for a plant visit. Rather, the provision, as noted, requires only that the
union representative notify the manager or other authorized representa-
tive of his desire to visit the plant.
8 Bajandas’ testimony in this regard contradicts an assertion made by
Respondent in a subsequent March 21, 2000 letter to Figueroa claim-
ing, inter alia, that the latter had “physically assaulted” Marcos Figue-
roa during the May 19, 1998 encounter (see VII: 368; GC Exh. 20).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD210
proper procedures for gaining access to Respondent’s facilities
(II: 231; 233). As Marcos Figueroa was not called to testify,
and as Bajandas did not see Figueroa assault Marcos Figueroa,
I credit Figueroa’s denial that any assault took place during that
incident.
Figueroa testified that on receiving the May 27, 1998 letter,
he complained to Martinez that the Respondent was violating
the collective-bargaining agreement by banning him from Re-
spondent’s facilities. Although banned from the plants them-
selves, Figueroa nevertheless had been allowed access to the
Respondent’s administrative offices.9 However, on May 19,
2000, the Respondent extended the ban to include its offices.
(Tr. 238.) The May 19, 2000 total ban on Figueroa’s access to
the facilities was precipitated by two separate incidents that
occurred on May 9 and 12, 2000.
The May 9 incident involved an implicit threat made by Fi-
gueroa to Juarbe during a phone conversation they held that
day. Juarbe testified to receiving a call that day from Figueroa
inquiring about some pending cases that needed to be dis-
cussed. Although admitting that he had a poor recollection of
what was discussed during that conversation due to the passage
of time, Juarbe nevertheless did recall that at one point during
the conversation, Figueroa became furious because he was not
getting the answers he expected from Juarbe. He further re-
called Figueroa stating that if this was how it was going to be,
they would have to resolve their pending issues by exchanging
blows.10 Juarbe claims that during this phone conversation, he
heard “voices” at Figueroa’s end and suspected that Figueroa
had put their conversation on a speakerphone, and that when he
questioned Figueroa about it, the latter denied that a speaker-
phone had been turned on or that there was anyone present with

9 Figueroa filed a charge with the Board alleging the denial of access
as unlawful, which matter, along with other allegations, including a
charge filed by the Company against the Union accusing Figueroa of
misconduct, was the subject of an earlier complaint. A hearing before
me on the complaint allegations was held on February 9, 2000. At the
start of the hearing, the parties entered into a non-Board settlement
agreement resulting in a withdrawal of all charges filed by the parties.
(See GC Exh. 6). Figueroa claims that not long after the February 9,
2000 hearing, he learned that the Respondent’s security guards had
received instructions not to allow him into the facilities. He then wrote
to Juarbe asking to be allowed into the Respondent’s facilities, but by
letter dated February 16, 2000, Juarbe referred him to Martinez’ May
27, 1998 letter denying him access (GC Exh. 5). While claiming that
the Respondent’s February 16, 2000 reflects Respondent’s intention not
to comply with the parties’ February 9, 2000 settlement agreement, the
General Counsel has not sought to have the settlement agreement set
aside (GC Br. 49). Nor, for that matter, does the Respondent claim that
the current allegation involving its refusal to allow Figueroa access to
any part of its facilities was resolved by that settlement agreement.
10 The translation provided at the hearing to Juarbe’s testimony as to
what Figueroa actually said was that they would have “to resolve this
matter in a slapping of each other’s faces.” (VI: 97.) This literal trans-
lation of Figueroa’s remark by the official court interpreter at the hear-
ing does not, in my view, accurately reflect the true meaning of Figue-
roa’s comment. Rather, a more accurate translation of Figueroa’s
comment is that they would have to resolve the matter by “exchanging
blows” or a “fist fight.”
him.11 Juarbe purportedly then asked Figueroa if his comment
about “exchanging blows” was intended as an invitation for
him (Juarbe) to fight Figueroa, to which the latter purportedly
replied, “You take it any way you want to.” (VI: 98.) Juarbe
claims he then reported the matter to Gonzalez who instructed
him to contact their attorneys. No decision, however, other
than the filing of charges with the Board, was taken to discon-
tinue any further contacts with Figueroa as a result of this inci-
dent.
The May 12, 2000 incident involved a recorded message left
on Juarbe’s answering machine containing a threat directed at
Gonzalez. Juarbe testified that he had spoken to Figueroa on
many other prior occasions and was, therefore, able to recog-
nize Figueroa’s voice on the recording. At the hearing, Juarbe
identified, from the transcript of the recording, certain state-
ments purportedly made by Figueroa.12 Juarbe reported the
phone message to González and both, along with Jacobs, heard
the recording, after which González purportedly instructed
Juarbe to contact their legal counsel and find out what they
should do (VI: 120). Soon thereafter, Gonzalez instructed
Juarbe that the Respondent should have no further written,
verbal, or physical contact with Figueroa. By letter dated May
19, 2000, addressed to the Union’s board of directors, Juarbe
notified the Union that due to Figueroa’s “unruly behavior,” the
Respondent would “no longer have any contact either in writing
or personally” with Figueroa, that he would not be allowed to
visit “our offices,” and that any messages and/or written docu-
ments from Figueroa would be returned and not received. The
letter further advised the Union that while Figueroa was prohib-
ited from entering its facilities, any of its other officers was
“welcome to come, visit, bargain and communicate with us.”
The letter explains that the Respondent’s decision was based on
“Figueroa’s participation in the acts that are stated in the charge
in [Case] 24–CB–2074,” and that it involved only Figueroa “in
his personal and official capacity” (R. Exh. 13).13 The Union,

11 On brief, the Respondent, apparently relying on Juarbe’s version
of the May 9, 2000 phone conversation between the latter and Figueroa,
states that Figueroa made his “fist fight” remark “while in the presence
of employees.” (R. Br. 33.) Juarbe, however, testified only to having
heard “voices” in the background, and never stated that the “voices”
belonged to employees. In fact, nothing in Juarbe’s testimony suggests
that he knew where Figueroa was calling from. The Respondent’s
assertion on brief, therefore, that Figueroa made his remark in the pres-
ence of other employees lacks evidentiary support.
12 A transcript of the recorded message, in Spanish and English, was
received into evidence as R. Exh. 12. The recorded message, according
to the transcript, begins with an unidentified voice commenting as
follows: “One has to be killed. One has to be taken away, whichever,
and I will start by the trunk. I will watch him go through.” (See R. Exh.
12, p. 2, L. 22, p. 3, L. 3.) The following comment, “That’s the son of
a bitch, Jose Gonzalez. That’s the trunk,” was identified by Juarbe as
having been made by Figueroa (VI: 118). Juarbe, however, did not
attribute the former “One has to be killed.” comment to Figueroa.
13 Case 24–CB–2074 involved allegations that the Union, through
Figueroa, had violated Sec. 8(b)(1)(A) and (B) of the Act by implicitly
threatening Juarbe, during their May 9, 2000 phone conversation, with
resolving their bargaining differences through fist fighting, and by
failing to disavow, and thereby supporting, an employee’s May 12,
2002 threat to physically assault and/or kill Gonzalez. On October 1,
2001, the Board in the above case issued an unpublished decision (336
PAN AMERICAN GRAIN CO. 211
however, according to Juarbe, responded that Figueroa was the
person designated to handle cases involving Pan American.
Juarbe claims that since May 12, 2000, the Respondent has
repeatedly asked to meet with the Union to address second-step
grievances, with the only caveat that someone other than Figue-
roa representing the Union at these meetings. Asked why the
Respondent did not want him or other managers to meet di-
rectly with Figueroa, Juarbe replied that it was for their own
safety because of the “other violent incidents” that had “already
occurred with” Figueroa. Yet, Juarbe concedes that despite this
purported safety concern over meeting with Figueroa, he, in
fact, met and dealt with Figueroa on several occasions after the
May 12, 2000 incident on matters such as arbitration hearings
and contract negotiations. (VI: 123; 125.) The Respondent on
brief concedes that Juarbe did continue to meet with Figueroa
“up until May 19, 2000” (R. Br. 31.)
The parties, however, are in agreement that, in response to
the Respondent’s requests for meetings, the Union for the most
part declined to meet unless Figueroa, its designated representa-
tive, was allowed to attend, something the Respondent ada-
mantly opposed. (VI: 125–126; 137; 152; R. Exh. 17.) Despite
the Respondent’s assertion that it would not accept any corre-
spondence from Figueroa, Juarbe testified that at some point
the Respondent changed its mind and began accepting Figue-
roa’s correspondence pertaining to labor relations matters, but
would direct its reply to the Union, not Figueroa (VII: 249–
250).
Discussion
The General Counsel contends that the Respondent’s refusal
to meet with Figueroa, the Union’s designated representative,
to discuss grievances, and its refusal, since on or about May 19,
2000, to allow him to enter its premises, was unlawful and a
violation of Section 8(a)(5) and (1) of the Act. The Respondent
counters that Figueroa’s May 9, 2000 invitation to Juarbe to
resolve their bargaining differences through a fist fight, and his
participation in, and failure to disavow, the threatening state-
ments contained in the May 12, 2000 recording, both of which
formed the basis for the violations found in Case 24–CB–2074,
were the sole reasons for its decision to ban Figueroa from its
facilities altogether (see VI: 84; R. Exh. 13), and for refusing to
have any further dealings with him.14 It argues that its refusal

NLRB No. 67) (not reported in Board volumes), pursuant to a summary
judgment motion filed by the General Counsel based on the Union’s
failure to file an answer to the complaint, finding merit to the above
allegations. A copy of the Board’s decision was received into evidence
as R. Exh. 1. The Board’s decision was subsequently enforced by an
order of a U.S. Court of Appeals for the First Circuit dated May 7, 2002
(R. Exh. 1).
The General Counsel’s intimation on brief (GC Br. 50), that the vio-
lations found by the Board in its decision in Case 24–CB–2074 did not
involve any threat made by Figueroa, is simply wrong, for the Board in
its decision did indeed expressly find that Figueroa’s May 9, 2000
remark amounted to an implicit threat to resolve their “bargaining
differences by means of fist fighting.”
14 Although Respondent, at the hearing and in its May 19, 2000
memo to the Union, made clear that the decision not to have any further
dealings with Figueroa and to ban him entirely from the Respondent’s
premises, was prompted solely by the May 9 and 12, 2000 incidents, on
to deal with Figueroa as the Union’s representative was justi-
fied under the Board’s holding in Fitzsimmons Mfg. Co., 251
NLRB 375 (1980), because Figueroa’s “unruly” behavior was
so egregious that it rendered bargaining with the Union through
Figueroa futile, if not impossible. I disagree with the Respon-
dent.
In Fitzsimmons, supra, the question before the Board was
whether an employer could lawfully refuse to bargain with the
designated representative of the union who had engaged in
certain misconduct. There, the union representative, during the
course of a grievance meeting, without provocation, and in the
presence of other employees, threatened to punch the em-
ployer’s representative in the mouth and “knock him on his
ass,” physically assaulted the employer’s representative by
grabbing him by his necktie and pulling him up to his feet, and
then challenged him to step outside to the parking lot, presuma-
bly to fight. The Board in Fitzsimmons declined to find the
employer’s refusal to bargain to be unlawful. In so doing, the
Board noted while parties to a collective-bargaining relation-
ship are generally free to choose their own representatives, a
party may nevertheless be relieved of its obligation to deal with
a particular representative if the latter’s presence during nego-
tiations would render collective bargaining impossible or futile.
Quoting from an earlier decision in KDEN Broadcasting Co.,
225 NLRB 25 (1976), the Board stated that the test for deter-
mining when such a refusal to bargain with a party’s designated
representative is justified is whether there is “persuasive evi-
dence that the presence of the particular individual would create
ill will and make good-faith bargaining impossible.” Fitz-
simmons, supra at 379. Applying that standard to the union
representative’s conduct, the Board in Fitzsimmons found the
conduct was sufficiently egregious as to have rendered bargain-
ing with the union, through the representative, impossible,
thereby justifying the employer’s refusal to bargain. Id. at 379.
Here, there is no question, given the Board’s decision in
Case 24–CB–2074, that Figueroa did indeed engage in unac-
ceptable behavior when, on May 9, 2000, he implicitly threat-
ened Juarbe by inviting him to resolve their bargaining differ-
ences through a fist fight, and when, on May 12, 2000, he failed
to disavow an implied threat made by some unidentified em-
ployee to Gonzalez in a recorded message. Figueroa’s miscon-
duct, however, is in no way comparable to the type of egregious
behavior engaged in by the union representative in Fitz-
simmons, supra. Thus, unlike the union representative in
Fitzsimmons, Figueroa never physically assaulted Juarbe or any
other manager, and his May 9, 2000 threat, unlike the union
agent’s conduct in Fitzsimmons, occurred during a one-on-one
phone conversation with Juarbe and not in the presence of other

brief the Respondent appears to argue that that decision was based on
“a series of incidents which peaked during the month of May 2000,”
suggesting implicitly that other conduct purportedly engaged in by
Figueroa prior to the May 2000 incidents, e.g., the 1998 incident in-
volving Marcos Figueroa, also factored into that decision. This appar-
ent change in position casts doubt on Respondent’s overall assertion
that its decision was prompted by Figueroa’s misconduct. At a mini-
mum, the Respondent’s assertion on brief, which I reject as not credi-
ble, appears to be nothing more than a post hoc attempt to further jus-
tify its decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD212
employees, a factor which the Board in Fitzsimmons found
added to the egregiousness of the union agent’s conduct. It is
patently clear, therefore, that while inappropriate, Figueroa’s
misconduct here was not as severe or as egregious as the union
agent’s misconduct in Fitzsimmons.
Nor was Figueroa’s misconduct here as severe as that en-
gaged in by a union representative in another case, Victoria
Packing Corp., 332 NLRB 597 (2000), which the Board found
was not serious enough to have justified an employer’s refusal
to bargain with that representative. Thus, in Victoria Packing,
supra, the union representative, during the course of a meeting
attended by the company owner, a shop steward, and two other
company representatives, engaged in a shouting match with the
owner and, at one point, came up to the owner’s face and while
pointing a finger at him, shouted, “I’m going to get you and
you’re [sic] f–king company.” The Board in that case upheld
the judge’s finding that the union representative’s misconduct,
while “rude” and possibly considered “excessive” in other set-
tings, was not “the type of conduct which could reasonably be
construed as tainting the bargaining process as long as he was
involved.” In so finding, the judge relied on the fact that repre-
sentative’s misconduct “was of an extremely short duration,
and did not involve any “physical contact or explicit threat of
force.” The judge further explained that “[f]or better or worse,
the obligation to bargain also imposes the obligation to thicken
one’s skin and to carry on even in the face of what otherwise
would be rude and unacceptable behavior.” Victoria Packing,
supra at 600. The judge accordingly concluded, and the Board
agreed, that the employer was not justified in refusing to meet
and bargain with the union agent on the basis of his above-
described misconduct.
Like the union representative’s misconduct in Victoria Pack-
ing, supra, Figueroa’s misconduct here did not involve any
physical contact or an explicit threat. Rather, Figueroa’s May
9, 2000 conduct, as found by the Board in Case 24–CB–2074,
consisted of a single implied threat to Juarbe, while his May 12,
2000 misconduct did not involve a threat by Figueroa but rather
a failure to disavow someone’s else’s threat. However, Figue-
roa’s misconduct here differs from the union representative’s
conduct in Victoria Packing, supra, in that, in the latter case,
the board agent’s threat, as in Fitzsimmons, supra, occurred in
the presence of others, e.g., two managers and one employee,
whereas Figueroa’s May 9, 2000 threat, as noted, did not. This
factor thus renders Figueroa’s misconduct less serious than that
engaged in by the union agent in Victoria Packing, which latter
conduct the Board, as noted, found was not sufficiently serious
to justify an employer’s refusal to bargain.15

15 See also Long Island Jewish Medical Center, 296 NLRB 51
(1989), where a union agent’s conduct in “lightly” pushing a manager
during the course of a meeting in the presence of other employees, in
calling the manager an “asshole” on several occasions, in preventing
the manager from getting out from behind her desk, and in hurling
“obscenities” at this and another manager on different occasions, was
found not to have justified the employer’s refusal to allow the agent
onto its premises. Thus, the Board in Long Island Jewish Medical
Center agreed with the judge that, while “distasteful,” the union agent’s
conduct “did not constitute persuasive evidence that the [his] presence
at the facility would create ill-will and make good-faith bargaining
In sum, I am convinced that Figueroa’s misconduct, while
objectionable, was not so serious as to have prevented the Re-
spondent from engaging in meaningful negotiations with the
Union through him. The Respondent, for its part, has presented
no persuasive evidence to indicate that Figueroa’s presence at
the bargaining table would create ill-will and make good-faith
bargaining impossible. Indeed, Juarbe’s own testimony, that he
continued meeting with Figueroa for several days thereafter,
following the May 9 and 12, 2000 incidents on arbitration mat-
ters and for further negotiations, lays bare the Respondent’s
claim that Figueroa’s misconduct had rendered good-faith bar-
gaining with him futile or impossible. Accordingly, I find that
Figueroa’s misconduct did not justify the Respondent’s May
19, 2000 decision to refuse to bargain with him as the Union’s
chosen representative, and to deny him access to its facilities,
as required under the parties collective-bargaining agreement.
The Respondent’s decision in this regard, therefore, violated
Section 8(a)(5) and (1) of the Act.
2. The ban on cell phone use
José Colón, an employee of the Respondent at its Arroz Rico
facility since 1993, has been serving as union steward since
sometime in early 2000. He testified to an incident that oc-
curred on March 10, 2000, regarding his use of a cell phone.
Thus, he recounted that as he was returning to work from his
break on March 10, Aldeano called him to a meeting with Ba-
jandas during which employee Rodolfo Rodríguez was to be
instructed to work overtime. (IV: 567–568.) Soon after the
meeting, Colón used his cell phone while still inside the plant
to call Figueroa to seek advice regarding the Rodríguez meet-
ing. According to Colón, while he was on the phone, Bajandas
approached him and “reminded” Colón that the use of cell
phones during working hours was not permitted, that only man-
agement officials were permitted to do so, and that, if he
wanted to speak with Figueroa, he had to do so outside of his
normal working hours, and that under company rules, he could
not have a cell phone inside the Company (IV: 569). Colon
claims he told Bajandas that the prohibition on the use of cell
phones in the plant facility was “news” to him, implying that
Colon was unaware of any such restriction.
Bajandas’ version of this incident is that after the meeting, he
noticed Colón standing some 5 to 6 feet from the production
area using a cell phone, and that he then went over and “re-
minded” Colón that he was not allowed to use a cell phone in
the production area. Bajandas testified that the prohibition on
the use of such phones extends only to the production area and
is intended to prevent possible contamination of the product
being packaged should the phone, beeper, or other loose object
fall in (VII: 346). According to Bajandas, he suggested to Co-
lon during their discussion that if he needed to make a call to
the Union or anyone else, he could do so by notifying a super-
visor who would make a phone available to him in one of the
supervisors’ offices (VII: 348–349; 382). The conversation,
according to Bajandas, ended at that point. There is no evi-
dence to show, nor does the Respondent contend, that Colon

impossible.” Id. at 72. Again, Figueroa’s misconduct here, in my view,
was not as egregious as that engaged in by the union agent in Long
Island Jewish Medical Center.
PAN AMERICAN GRAIN CO. 213
was using his cell phone while actually engaged in production
work.
Colón testified that when he reported for work 3 days later,
on March 13, 2000, he observed that a memo on the use of cell
phones had been posted by Plant Manager Gustavo Lejardi next
to the timeclock. Jacobs testified that he directed Lejardi to
prepare the memo after observing an employee, Luis Velez,
speaking on a cell phone while operating a “man lift.” Jacobs
claims that Velez was verbally warned about the incident. The
March 13 memo was directed to all “Arroz Rico” employees
and reads as follows:
I want to remind you that the use of cellular telephones, beep-
ers or other similar equipment is prohibited inside the plant
and its perimeter. The use of this equipment will only be al-
lowed to persons authorized by the management of Pan
American Grain. Unauthorized personnel cannot have said
equipment inside the plant. If any person ignores this regula-
tion, the same will be disciplined as applicable.
Colón claims that at no time prior to May 10, 2000, was he
aware of any company policy, written or otherwise, prohibiting
the use of cell phones in the facility, and that he had observed
supervisors using cell phones in the plant. He testified that at
no time prior to the posting of the above memo did Lejardi or
Jacobs ever prevent him from using his cell phone inside the
plant (IV: 645–646). According to Colón, on March 15, 2000,
2 days after he first saw Lejardi’s memo, and as he was heading
towards his work area, Aldeano approached and instructed him
to leave his cell phone in his car because González had threat-
ened to fire anyone caught with a cell phone.16 (IV: 570.)
Colon’s testimony was corroborated, in part, by former em-
ployee David Arroyo Pino, who recalls seeing Colón using the
cell phone following the March 10 meeting, and Bajandas in-
forming Colón that he was prohibited from doing so. Pino
further recalls seeing the March 13, 2000 memo posted on the
bulletin board, and testified that at no time prior thereto had he
seen any policy forbidding the use of cell phones at the Com-
pany. Pino testified that he had, in the past, observed employ-
ees and supervisors alike using cell phones inside the plant, but
that after the March 13 memo was posted, he continued to see
supervisors using cell phones but did not see any employees
doing so. (III: 426–427.)
The Respondent at the hearing conceded that prior to the
March 13 memo, it had no written policy prohibiting the use of
cell phones in the workplace (IV: 607). It contends, however,
that it has always adhered to certain Food & Drug Administra-
tion (FDA) safety guidelines known as “Good Manufacturing
Practices” or “GMP” set forth in 21 CFR § 110, and that said
guidelines form part of company rules that employees are ex-
pected to follow.17 (VIII: 410.) The Respondent claims that the

16 While he briefly testified on other matters, Aldeano was not asked
about, and consequently did not deny, Colón’s testimony in this regard.
(VII: 390–396.) González likewise was not asked if he had ever made
such a comment.
17 A copy of 21 CFR § 110 was received into evidence as R. Exh.
18. The company rules were received into evidence as R. Exh. 4. Par.
5, p. 2 of R. Exh. 4 prohibits employees, for safety and hygienic rea-
general ban on the wearing of jewelry and other related items at
the workplace contained in the GMPs incorporates, by implica-
tion, other items that an employee may wear or carry on his or
her person, such as cell phones and beepers.
According to Jacobs, when he began working for Respon-
dent in 1998, the use of cell phones and beepers “at the Pan
American Grain plants” was prohibited, and the ban “reen-
forced [sic] . . . on different occasions.” (VII: 413.) Jacobs
testified that the company rules found in Respondent’s Exhibit
4 were written by him, and that employees were trained on the
GMPs and received, during such training, copies of Respon-
dent’s Exhibit 4. He conceded, however, that Respondent’s
Exhibit 4 does not contain an express prohibition on the use of
cell phones and beepers. Nevertheless, he contends that the
Respondent treats items such as cell phones and beepers as
“objects” within the meaning of Respondent’s Exhibit 4, para-
graph 5 because they can become dislodged from one’s person
and fall into the food processing area, contaminating the prod-
uct. He explained that because of the danger of food contami-
nation, employees “working directly with the product” are not
allowed to have any loose items, such as jewelry, cell phones,
beepers, etc., “on their person.” He further admitted, however,
that during the training given to employees on the GMPs, he
never specifically mentioned that the use of cell phones was
prohibited under paragraph 5. (VIII: 425–427.) Asked by Re-
spondent’s counsel what, if any, condition is imposed on em-
ployees on the use of cell phones and beepers inside the plant
itself, Jacobs explained that employees are “totally prohibited”
from using said items while they are “operating . . . any type of
equipment.” (VIII: 430.) His assertion in this regard, coupled
with his explanation that the purpose of the ban on cell phones
and other items, e.g., jewelry, during the operation of machin-
ery was to prevent possible contamination of food products
should they become dislodged, suggests that the alleged ban on
cell phones, if one did exist, extended only to their use by em-
ployees during the operation of machinery, and presumably not
to their use at other locations within Respondent’s facilities. In
fact, Jacobs’ further testimony, that “employees have always
been allowed to utilize their cellular telephones . . . in the cafe-
teria . . . and the patio,” suggests that the Respondent’s alleged
ban on cell phone use did not apply to all areas inside and
within the perimeter of the Respondent’s facilities, as stated in
the March 13 memo, and, indeed, as Jacobs himself initially
testified.18 (VIII: 430.)
Like Jacobs, Bajandas testified that the Company’s (GMP)
policy on the wearing of jewelry such as earrings and watches,
extends implicitly to cell phones and beepers, explaining in this
regard that employees are not permitted to have “anything” on
their persons that might jeopardize their safety. Bajandas, as
previously indicated, further explained that the prohibition
applies to employees and supervisors alike. Regarding the

sons, from wearing “rings, watches, neck chains or pendants, bracelets
and other types of jewelry” on company premises.
18 Jacobs did not explain why, if employees were allowed to use
their cell phones in certain areas within the Respondent’s facilities, the
March 13 memo he directed Lejardi to prepare describes the ban as
applying to all areas “inside the plant and its perimeter.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD214
areas to which the cell phone ban applied, Bajandas under-
mined Lejardi’s purported “reminder” to employees in the
March 13 memo, that the ban applied to the inside of the plant
and its perimeter, by testifying that the use of cell phones has
occurred inside the plant, and that he himself has done so on
occasions. Further, Bajandas’ description of the cell phone
restriction to Colon on March 10, 2000, e.g., that the ban ap-
plied to the production area, was also inconsistent with the
March 13 memo’s description of the policy as applying to the
entire “plant and its perimeter.” I have no doubt, given his
statement to Colon about the ban applying to production areas,
and his admission that cell phones have in the past been used
inside the plant by himself and others, that Bajandas himself
did not believe that, prior to March 13, the Respondent’s pur-
ported ban on the use of cell phones extended to all areas in-
side, and around the perimeter, of Respondent’s facilities, as
was stated in the March 13 memo.19 (VII: 346–348; 378; 382.)
In sum, I found neither Jacobs’ nor Bajandas’ testimony
concerning Respondent’s policy on the use of cell phones by
employees to be particularly credible. Both, as previously dis-
cussed, gave confusing, as well as conflicting and, at times,
self-contradictory, descriptions of the Respondent’s alleged cell
phone policy and its parameters. Their testimonial description
of the alleged ban was, moreover, inconsistent with the ban
described in Lejardi’s March 13 memo, an inconsistency left
unexplained by Jacobs who, by his own admission, directed
Lejardi to prepare and post the memo. Adding to the confusion
is a May 17, 2001 memo issued by Lejardi to all employees at
the Arroz Rico plant “reminding” them that the use of cell
phones, beepers, and jewelry was prohibited in “the areas of
production, mill, dispatch, and the elevators.” (GC Exh. 38.)
The restrictions on employees’ use of cell phones and beepers
described by Lejardi in his May 17, 2001 memo, as noted, are
different, e.g., less restrictive in that they are limited to specific
areas of a plant, from that described by him in his earlier memo
of March 13, 2000, which, as noted, extended the ban to the
entire facility and its perimeter. This obvious discrepancy be-
tween the total ban on the use of cell phones described in the
March 13, 2000 memo, and the less restrictive one subse-
quently described in the May 17, 2001 memo, was not ex-
plained by the Respondent. Lejardi, who authored both memos
and who presumably could have clarified the matter, was never
called to testify. The Respondent’s failure to call Lejardi as a

19 At the hearing, Respondent’s counsel, Robles, averred that the
employees were told “from day one that they cannot use the cellular
phones in the workplace” (IV: 607). His assertion in this regard, how-
ever, lacks evidentiary support or corroboration from either Jacobs or
Bajandas, neither of whom testified that employees were specifically
informed of the ban. In fact, Jacobs, as noted, readily admitted that,
during the employee training sessions on the GMPs, he never men-
tioned that cell phones and beepers were among the items considered
banned under R. Exh. 4. Nor does Robles’ description of the ban as
applying to the “workplace” fully square with Bajandas’ or Jacobs’
description of the extent of the limitation on cell phone use, for as
noted, Jacobs, at one point, described the ban as applying only when
employees were actually operating machinery, while Bajandas ex-
plained that the ban applied to the production area in general, rather
than to the entire plant.
witness to explain the inconsistencies in his memos warrants an
adverse inference that, if called, his testimony on this issue
would have been adverse to Respondent. Bryant & Stratton
Business Institute, 327 NLRB 1135, 1154 fn. 20 (1999).
Given the above facts and inconsistencies in Jacobs’ and Ba-
jandas’ testimony, the Respondent’s claim, that it had, prior to
the March 10, 2000 incident and March 13, 2000 posting, long
maintained an unwritten policy restricting employee use of cell
phones in the workplace, is not a credible one.20 However,
assuming, arguendo, that the Respondent, prior to March 10,
had some unwritten rule or policy restricting employee use of
cell phones, it is patently clear from their own ambiguous and
inconsistent testimony that neither Jacobs nor Bajandas knew
precisely what those restrictions were. In any event, Colon’s
and Pino’s credited testimony that they were unaware of any
prohibition on the employees’ use of cell phones inside the
plants, and that they and/or other employees often used cell
phones in the workplace without apparent repercussions, and
Jacobs’ admission that employees were never expressly told,
during their training on the GMPs, of any restrictions on the use
of cell phones, leads me to believe that if any such restriction
did exist, they were never conveyed to employees and, more-
over, had been either ignored or never enforced.
Discussion
The complaint alleges that the Respondent unilaterally and
unlawfully changed its employees terms and conditions of em-
ployment on March 10, when Bajandas prevented Colon from
using his cell phone, and on March 13, when Lejardi posted the
memo informing employees that the use of cell phones was
prohibited inside the plant and its perimeter.
An employer has a statutory duty to bargain in good faith
with the duly chosen representative of its employees regarding
the latter’s wages, hours, and other terms and conditions of
employment, commonly referred to as “mandatory” subjects of
bargaining. NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958).
Absent a clear and unmistakable waiver, an employer violates
the Act if it unilaterally alters or changes a term or condition of
employment without first giving its employees’ representative
prior notice, and an opportunity to bargain over the change.
NLRB v. Katz, 369 U.S. 736, 743 (1962).21

20 The only objective evidence produced by the Respondent suggest-
ing the likelihood that it may have had some rule on the use of cell
phones is a warning memo issued to Colon in November 1996, for not
complying with a company rule on the wearing of safety glasses (see R.
Exh. 6). The memo, in addition to identifying the “wearing of safety
glasses” as a “safety norm,” lists three other “safety norms,” one of
which is the “using or carrying a cellular or beeper inside the working
area.” Notwithstanding the reference in the memo to a safety rule
regarding the use of cell phones or beepers, the Respondent readily
admitted at the hearing that this memo by itself does not constitute a
rule, and that, in fact, no written rule exists prohibiting such conduct
(IV: 606–607).
21 A union’s waiver of its statutory right to bargain over a particular
subject matter can occur by express language in a collective-bargaining
agreement, or may be implied from the parties’ bargaining history, past
practice, or a combination of both. KIRO, Inc., 317 NLRB 1325, 1327
(1995); Register-Guard, 301 NLRB 494, 496 (1991). The party claim-
ing that a waiver has occurred bears the burden of showing that the
PAN AMERICAN GRAIN CO. 215
The Respondent’s sole defense to the allegation is that it has
long maintained an unwritten rule prohibiting the use of cell
phones inside its plants, and that Bajandas was simply enforc-
ing that rule against Colon on March 10, while Lejardi, in his
March 13 memo, did nothing more than “remind” employees of
the purported rule.
I find no merit in Respondent’s argument. Other than Ja-
cobs’ and Bajandas’ confusing, vague, and at times conflicting
testimony, the Respondent produced no evidence to show that it
had, prior to March 10, 2000, maintained a policy prohibiting
the use of cell phones in the workplace. By its own admission,
the Respondent never actually had a written policy to that ef-
fect. If anything, Colon’s and Pino’s credited testimony, cor-
roborated in part by both Jacobs and Bajandas, makes clear that
the use of cell phones in the plant was a common and accepted
practice among employees and supervisors alike. Their testi-
mony in this regard, as well as Jacobs’ admission that employ-
ees were never actually told, during their training on the GMPs,
that the prohibition on the use of jewelry extended to cell
phones and beepers, convinces me that any purported restric-
tions the Respondent may have had on the use of cell phones at
the workplace, were never actually communicated to employ-
ees and, moreover, had either been ignored or never enforced.
The Respondent in this regard produced no evidence to show
that any employee had, prior to March 10, 2000, ever been
spoken to, warned, or otherwise disciplined for violating its so-
called ban on cell phone use in the workplace.
In short, I find, contrary to the Respondent’s claim, that the
employees’ use of cell phones inside Respondent’s facilities
was a common and accepted practice prior to March 10, 2000,
when Colon was prevented by Bajandas from using his cell
phone, and certainly before the Respondent posted its purported
March 13, 2000 memo. The use of cell phones by employees
was therefore a term and condition of their employment, and
thus a mandatory bargaining subject which the Respondent was
not at liberty to unilaterally alter or change without first notify-
ing the Union and affording it an opportunity to bargain. Il-
liana Transit Warehouse Corp., 323 NLRB 111, 122 (1997);
Pepsi-Cola Bottling Co. of Fayetteville, Inc., 315 NLRB 882,
895 (1994); Treanor Moving & Storage Co., 311 NLRB 371,
386 (1993); Brown & Connolly, Inc., 237 NLRB 271, 281
(1978); and Advertiser’s Mfg. Co., 280 NLRB 1185 (1986).22
The Respondent, however, did just that when, on March 10 and
13, 2000, respectively, and without prior notice to or bargaining
with the Union, it prohibiting Colon from using his cell phone
inside the plant to call the Union, and posted the memo inform-
ing employees of the ban on cell phone use inside the plant and
its perimeter. Accordingly, the Respondent’s above conduct

union clearly and unmistakably relinquished its right to bargain over
the subject matter. TCI of New York, 301 NLRB 822, 824 (1991); Twin
City Garage Door Co., 297 NLRB 119, 128 (1989).
22 The Respondent does contend that the use of cell phones is not a
mandatory bargaining subject. Rather, its sole argument, which I have
rejected as lacking evidentiary support, is that it was simply adhering to
an established past practice when it prohibited Colon from using his
cell phone in the production area, and when it posted the March 13,
2000 memo. The Respondent, who bore the burden of proving that it
had such a practice, has, as found above, not done so.
amounted to violations of Section 8(a)(5) and (1) of the Act, as
alleged.23
3. The new equipment training policy
The record reflects that the Respondent utilizes different
types of machinery and equipment in its production process.
One such machine, identified as an ICA, is used for packaging
rice. In late 1998, early 1999, the Respondent acquired and
installed two ICA machines, each of which required five–six
employees per shift to operate. Jacobs testified that employees
“were selected [for training] based on a group of employees
with higher seniority to work together with employees with less
seniority for both shifts” (VIII: 436–437).24 According to Ja-
cobs, employees chosen to train and operate this equipment
were those already classified as A-skilled. Jacobs further testi-
fied that the training given to employees on the ICA did not
result in any promotion, salary increase, or additional benefits.
(VIII: 438).
In February 1999, the Union, through Figueroa, asked that
two A-skilled mechanics, Antero Diaz and Francisco Martínez,
be trained in the mechanical maintenance and repair of the
ICAs. The Respondent, Jacobs claims, agreed to do so because
both Diaz and Martínez apparently were receiving some form
disability benefits. Jacobs denies discussing any other claim or
matter during his 1999 meeting with Figueroa. (VIII: 440–441.)
Early in 2000, the Respondent acquired and installed another
new machine, known as a CSV-40, in the production depart-
ment of the Arroz Rico facility which was to be used for the
packaging of long grain rice. Jacobs testified that the selection
procedure for employees training on the CSV-40 was the same
as that followed in 1999 with the ICAs, e.g., senior as well as
less senior A-skilled employees from different shifts were to be
selected, and that the training would have no impact on the
employees’ opportunity for promotion, or affect their classifica-
tion in any way. (VIII: 441–442.)
Following installation of the CSV-40, Juarbe circulated a
memo dated March 1, 2000, notifying production employees of
the new machine, and asking that those interested in receiving
training on the new equipment should obtain a questionnaire

23 The Respondent’s further claim, that the allegation is time barred
by Sec. 10(b) of the Act, is rejected as without merit. Sec. 10(b) of the
Act provides in pertinent part that “no complaint shall issue based upon
any unfair labor practice occurring more than six months prior to the
filing of the charge with the Board.” Here, the credible evidence of
record fails to show the existence of any rule prohibiting cell phone use
in the workplace prior to March 10, 2000. That the Respondent may
long have had “concerns” about the use of cell phones in the work-
place, as it asserts on brief (R. Br. 57), does not establish that a ban on
cell phone use had been in place prior to March 10, 2000. Further,
even if some restrictions had been in place, the Respondent has not
demonstrated that the Union was, or had reason to be, aware of such
restrictions. Paul Mueller Co., 337 NLRB 764 (2002); Dutchess Over-
head Doors, Inc., 337 NLRB 162 (2001).
24 Jacobs’ testimony in this regard was ambiguous and confusing.
Thus, it is not clear if Jacobs was stating that the selection of employees
for training on the ICA machines was to be done according to seniority
and that these employees would then be put to work alongside less
senior employees (possibly to train the latter), or whether he meant to
say that senior and less senior employees would be trained together.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD216
from Lejardi describing the skills that would be evaluated. The
memo states that all those meeting the requirements would be
considered for the training (GC Exh. 8). While the memo did
not specify precisely what those requirements were, it rather
vaguely suggests that the requirements needed were somehow
based on the employees having “necessary skills.” On March
3, 2000, 2 days later, Lejardi circulated another memo stating
that no one had yet requested training on the CSV-40, and not-
ing that they had only until March 7, 2000, to do so (GC Exh.
9).
On March 6, 2000, Figueroa wrote to Juarbe stating that the
collective-bargaining agreement required the training on the
CSV-40 to be done according to seniority, and reminded Juarbe
that on February 5, 1999, when the Respondent first acquired
its ICA machines, an agreement was entered into between Ja-
cobs and Figueroa whereby training on the ICAs would be
provided to employees with the most seniority (GC Exh. 10).
By letter dated March 7, 2000, Juarbe responded to Figueroa’s
claim of a February 5, 1999 agreement by noting that, accord-
ing to Jacobs, “there is no evidence of any agreement reached”
on the subject of providing training by seniority. (GC Exh. 11.)
Jacobs similarly testified that Figueroa was wrong in his asser-
tion that an agreement was reached in 1999 requiring that train-
ing be provided on the basis of seniority. Rather, his recollec-
tion was that the February 1999 meeting involved only an
agreement to train mechanics Diaz and Martínez on the mainte-
nance and repair of the ICAs. (VIII: 444.)
Figueroa responded 2 days later by letter stating that Juarbe
was wrong, and that Jacobs was a liar and an unprofessional
because an agreement had indeed been entered into on February
5, 1999, whereby Jacobs agreed that training on the ICAs
would be done according to seniority. Figueroa also insisted
that Juarbe had been present at the 1999 meeting when the
agreement was made and was, therefore, lying about not know-
ing of the agreement. Figueroa reiterated that any training that
was to be done on the ICAs or some other machinery must be
done according to seniority. He then requested that the Re-
spondent sit down and negotiate with the Union the procedure
to be followed for providing such training (GC Exh. 13). Fi-
gueroa claims that the Respondent has refused to negotiate over
employee training on the new equipment (I: 89).
On March 8, 2000, Gonzalez wrote to Figueroa addressing
the issue of further training of employees on the ICA machines,
and on the new CSV-40 machine. Regarding the former, Gon-
zalez noted that while the training period and its training con-
tract with the ICA machine manufacturer had ended, he never-
theless would, consistent with his policy that all employees
possess the necessary skills and with the Union’s request that
employees not trained in 1998 and 1999 on the ICAs receive
such training, permit all employees who had not taken the train-
ing to do so. The evaluation and training of these employees,
according to Gonzalez, would follow the seniority list, and that
the training of these employees would begin with the “simpler
machines” and end up with “the more complex machines, the
CVS-40.”25 Training, the letter stated, would begin by employ-

25 In the various correspondence received into evidence, the new
equipment is at times described as either the CVS-40 or the CSV-40.
ees filling out a questionnaire specifying his or her areas of
knowledge and the areas where training was needed. Finally,
Gonzalez advises that the training in the new CSV-40 would be
done in accordance with Juarbe’s March 7 letter.
Figueroa testified that an employee’s failure to train on new
machinery could adversely affect his or her job status. He ex-
plained that the collective-bargaining agreements require that
employees classified as A skilled be familiar with all packing
operations. Thus, he reasoned that an A-skilled employee un-
familiar with or not trained in new machinery, such as the ICAs
or the CSV-40, could theoretically be downgraded to a lower
classification, e.g., B skilled, as they would lack the skills
needed to operate said machinery (I: 93–94).
Discussion
The General Counsel contends that the selection process an-
nounced by the Respondent in March 2000, for employees
wanting to be trained on the CSV-40 machine was done with-
out giving the Union any prior notice or an opportunity to bar-
gain over the process, in violation of Section 8(a)(5) and (1) of
the Act. The Respondent argues that the allegation is barred by
Section 10(b), and that, in any event, under article 1, section 1,
of its collective-bargaining agreement with the Union, it had
the right to unilaterally institute the March 1, 2000 training
program.26
As to the Respondent’s latter defense, there is no question,
and the Respondent does not claim otherwise, that the training
program on the new equipment announced on March 1, 2000, is
a mandatory subject of bargaining, as it could potentially affect
advancement opportunities for unit employees. E.G. & G.
Rocky Flats, Inc., 314 NLRB 489, 497 (1994); Cello-Foil
Products, 178 NLRB 676, 682 (1969). As such, absent a clear
and unmistakable waiver by the Union of its right to bargain
over this particular subject matter, the Respondent was not free
to unilaterally institute the training program without first giving
the Union notice and an opportunity to bargain. The Respon-
dent, however, contends, implicitly, that such a waiver can be
found in the language of the management-rights clause which
gives it the exclusive right “to conduct, manage and/or operate
the business, establish and maintain the good operations of the
work rules.” (R. Br. 50.) I disagree, for it is well settled that the
Board “will not infer, from a general contractual provision, that
the parties intended to waive a statutorily protected right unless
the undertaking is ‘explicitly stated.’” Stated otherwise, the
waiver must be clear and unmistakable. Michigan Bell Tele-
phone Co., 306 NLRB 281 (1992); Register-Guard, 301 NLRB
494, 495 (1991); Johnson-Bateman Co., 295 NLRB 180, 184

26 Art. I, sec. 1 of the parties agreement reads as follows:
The Union recognizes that it is the exclusive right of the COMPANY
to conduct, manage, and/or operate the businesses, to establish and
maintain in good operation of the work rules. Likewise, it recognizes
that the right to control, supervise, and manage the COMPANY in
general, are exclusive functions of the COMPANY. The creation of
new jobs, the elimination or changes of existing jobs, the service to be
provided and the scheduling of work, are the COMPANY’S preroga-
tives, and the same will not be considered as [excluding] other mana-
gerial prerogatives not previously explained in detail; except for the
limitations stated in this Agreement.
PAN AMERICAN GRAIN CO. 217
(1989). Here, nothing in the language of article I, section 1,
cited by the Respondent, or elsewhere in that provision for that
matter, makes reference to, much less mentions, the right
claimed by the Respondent to unilaterally institute training
programs for employees. The clause, thus, lacks the degree of
specificity required to constitute a clear and unmistakable
waiver of the Union’s right to bargain over this subject matter.
Moreover, the Respondent, it should be noted, does not con-
tend, nor is there any evidence to show, that this particular sub-
ject matter was discussed and explored during contract negotia-
tions, or that its March 1, 2000 decision involving the institu-
tion of the training program was consistent with an established
past practice. Accordingly, the Respondent’s waiver defense is
found to be without merit.
As to the Respondent’s 10(b) defense, the latter provision, as
noted, precludes the finding of an unfair labor practice based on
conduct occurring more than 6 months prior to the filing of the
unfair labor practice charge. Here, the allegation, that the Re-
spondent’s March 1, 2000 unilateral institution of a training
policy was unlawful, is based on an unfair labor practice charge
in Case 24–CB–8579 filed on March 15, 2000, clearly well
within the 10(b) 6-month limitations period. (GC Exh. 1[c].)
The Respondent’s suggestion, on brief, that the Union is some-
how precluded by Section 10(b) from challenging the legality
of its March 1, 2000 conduct because it never filed a charge
over, or challenged the legality of, the training program estab-
lished for employees on the ICA machines in 1998, is without
merit, for it is well settled that each failure or refusal by an
employer to satisfy its bargaining obligation constitutes a new
and independent violation of the Act. U.S. Can Co., 305 NLRB
1127, 1143 (1992); Washington Hardware & Furniture Co.,
175 NLRB 63, 65 (1969); Cumberland Shoe Corp., 156 NLRB
1130, 1137 (1966); also Industrial Power, 321 NLRB 816, 819
(1996). Thus, even accepting as true the Respondent’s claim
that the Union could have filed a charge in 1998, alleging its
institution of an employee training program as unlawful, the
Respondent’s subsequent refusal to bargain over the March 1,
2000 institution of a training program for the CSV-40
amounted to a new and independent violation, for which a
timely charge was filed.
Having rejected as without merit the Respondent’s “waiver”
and “10(b)” defenses, I find that the Respondent’s failure and
refusal to notify and bargain with the Union before announcing
and instituting its March 1, 2000 CSV-40 training program for
unit employees was unlawful and a violation of Section 8(a)(5)
and (1) of the Act.
4. The refusal/failure to deduct union dues
Both collective-bargaining agreements entered into by the
parties contain, at article XXV, a union-security provision re-
quiring that unit employees become members of the Union 31
days after they begin their employment with the Respondent.
Section 2 of article XXV requires that an employee sign a writ-
ten authorization directing the Respondent to deduct union dues
from the employee’s salary, and requires the Respondent to
comply with that authorization and to deliver the collected dues
to the Union’s treasurer.
On February 17, 2000, Figueroa wrote to Juarbe advising
that four “maintenance employees”—Alberto Franco Mateo,
Marcelo Franco Villegas, Daniel Castro, and Jorge Ortiz—were
seeking membership in the Union and had submitted signed
dues-checkoff forms to the Union authorizing the Respondent
to begin deducting the required union dues from their wages.
The signed dues-checkoff forms were attached to Figueroa’s
letter. (GC Exh. 7.) Figueroa claims that when these four em-
ployees came to him seeking membership in the Union, they
described themselves as welders in the maintenance department
who performed their work in the Amelia and Corujo plants. (I:
63.)27 It is undisputed that welders are among the job classifi-
cations that form part of the bargaining unit.
Figueroa testified that after sending his letter, Juarbe got
back to him and indicated he was going to discuss the matter
with González, and that Juarbe subsequently informed him that
he had gotten González’ approval and that the dues deductions
would be made. Figueroa, however, claims that Juarbe called
him a few days later to say that González had changed his mind
and that no dues deductions would be made. (I: 67.) He further
claims Juarbe gave him no explanation as to why Gonzalez had
changed his mind.
Juarbe had a different take on his conversation with Figueroa
regarding these four employees. Thus, he recalls receiving
Figueroa’s February 17, 2000 letter. He testified that the four
employees in question had been working for the Respondent
since 1996, and were employed in the construction department
at the Amelia plant, not in the maintenance department, as testi-
fied by Figueroa (VI: 174). He claims that on receiving Figue-
roa’s letter, he informed Figueroa he would look into the matter
and then consulted with González. Gonzalez purportedly told
him that he was not opposed to the four employees being part
of the Union, but that the four would have to be included in a
bargaining unit separate and apart from the production employ-
ees as they were construction employees. Juarbe then notified
Figueroa of his discussion with González, and stated that the
Union was allowed to represent the four employees but in a unit
different from the one the Union already represented at Amelia,
and advised Figueroa to take whatever steps were necessary
before the Board to achieve this goal. Juarbe claims that during
negotiations that took place in December 2001, the Union
asked that Franco, Franco Villegas, Castro, and Ortiz be in-
cluded in the Amelia production unit but that the Respondent
declined to do so (VI: 177–178). Juarbe concedes that the four
employees performed welding work and were viewed by the
Respondent as welders. He contends, however, that at no time
since February 2000, when the Union submitted dues-checkoff
authorization for the four employees, have these four employ-

27 Franco, Franco Villegas, Castro, and Ortiz have apparently been
employed by Respondent for several years. Figueroa testified, without
contradiction, that the Union had not previously sought to collect dues
from these four individuals because he had been led to believe by Gon-
zález that the four were not employees but rather independent contrac-
tors. It was only when the four sought to become union members in
February 2000 that Figueroa checked their pay stubs and learned that
they in fact were employees, not subcontractors. (IX: 666–667.) Gon-
zález did not refute Figueroa’s above assertion. Figueroa’s testimony
in this regard is credited.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD218
ees been viewed by the Respondent as forming part of the bar-
gaining unit (VII: 266–267).
Figueroa expressly denied Juarbe’s version of their discus-
sion regarding the inclusion of the four employees in the unit,
reiterating, on cross-examination, that Juarbe simply told him
that Gonzalez had changed his mind without giving an explana-
tion (II: 227). Although questioned on other matters, Gonzalez
was never asked to corroborate Juarbe’s account, or to refute
what Figueroa, through Juarbe, attributed to him. The failure to
question Gonzalez on this issue, despite the fact that the latter,
according to Juarbe, was the one who made the decision on
whether or not dues should be deducted, supports an adverse
inference. Asarco, Inc., 316 NLRB 636, 640 (1995).
I credit Figueroa’s version of his conversation with Juarbe.
Juarbe was simply not very convincing on this issue. His
claim, for example, that the Respondent has never treated or
viewed these four employees as part of the bargaining unit is
rendered suspect by a February 27, 2002 letter he sent to the
Union advising it of a layoff of certain unit employees (see GC
Exh. 37). The four individuals whose status is at issue here
were included among the unit employees identified by Juarbe in
his letter as those unit employees who would be affected by the
layoff (VII: 263). The letter, thus, clearly undermines Juarbe’s
assertion that the Respondent has never viewed these employ-
ees as part of the unit. Juarbe’s rather defensive and at times
argumentative demeanor on cross-examination convinces me
that he was being evasive and less than candid (see, e.g., VII:
245; 258). Accordingly, I find, as testified to by Figueroa, that
Gonzalez, through Juarbe, at first agreed to allow the deduction
of dues for the four individuals, but subsequently, and without
explanation, changed his mind and refused to do so.
As to the duties performed by these four employees, Geraldo
Curet, their immediate supervisor, testified that all four have
been with the Company for more than 8 years, and that they are
assigned to the Respondent’s construction department which is
responsible for the construction and expansion of Respondent’s
buildings, warehouses, and other facilities. Curet claims that
the four employees perform their functions throughout the Re-
spondent’s various facilities, and that their duties differ sub-
stantially from the work typically performed by bargaining unit
welders in that the latter engage in what he described as “light”
welding, whereas the former are more akin to “construction
workers” who perform “structural” welding. According to
Curet, there is no relationship between the work done by bar-
gaining unit welders in the maintenance department and that
done by the four construction department welders. He ex-
plained in this regard that while unit welders are responsible for
the general maintenance of the plant, the construction depart-
ment welders are exclusively engaged in the construction and
building of new structures for the Company and perform no
unit work at all. However, on occasion, construction depart-
ment welders have installed new production equipment. Curet
denies that the latter have ever performed light welding work to
repair production equipment at the plant (VII: 323). Curet ad-
mits that unit welders have on occasion assisted construction
department welders, but that such work consisted of holding
ropes or material or doing light welding work, and that such
assistance occurs only about once or twice a year (VII: 295–
296; 301). Unit employees, Curet contends, do not perform
“structural” or “heavy” welding when assisting construction
department welders because they lack the skills to do so. (VII:
314–315.) Like Juarbe, Curet was, at times, also evasive, as
when he declined to provide a straight answer to the General
Counsel’s question regarding the duties performed by certain
employees (see, e.g., VII: 319).
Franco Mateo and Franco Villegas, both of whom no longer
work for the Respondent, testified as to the work they per-
formed while in the Respondent’s employ. Franco Mateo testi-
fied that he worked as a welder at the Respondent’s various
plants repairing defective equipment, and working on expan-
sions made to the facilities. Franco Mateo also identified bar-
gaining unit employees Daniel Castro, Domingo Garcia, Jorge
Ortiz, and William Jomez as having worked with him on con-
struction projects undertaken by the Company (IX: 618). He
explained that at times, while working on a construction pro-
ject, he, along with any of the other construction welders and/or
unit welders, might be asked by the supervisor in charge to
repair some machinery or equipment that needed fixing (IX:
620–621). In short, Franco Mateo described the work he did
while employed by Respondent as construction and mainte-
nance work (IX: 635).
Franco Villegas, brother of Franco Mateo, testified that he
too was a welder who performed construction as well as main-
tenance or repair work at Respondent’s various plants. The
repair work described by Franco Villegas consisted of repairing
tanks that had rusted out. Franco Villegas also identified Cas-
tro, Garcia, Ortiz, and Jomez as the “coworkers” who worked
alongside him and his brother doing all types of welding work
at the different plants. (IX: 644.) Franco Villegas specifically
recalled doing maintenance work on certain machinery at the
Corujo plant with Jomez on instructions from either Curet or
supervisor Augusto Montoya, and that such maintenance work
included changing damaged screens, and repairing washers and
elevators (IX: 647). He further testified that he had also
worked with Jomez and Garcia on the construction of tanks,
and that while the work he did on such projects involved elec-
trical welding, his duties in this regard consisted mostly of do-
ing the pre-welding preparation, such as taking measurements,
and that, “for the most part,” he did not do much welding.
Jomez and Garcia, he explained did the welding on such pro-
jects. (IX: 648.)
Jomez, currently employed as a bargaining unit welder by
the Respondent, testified, consistent with the testimony of
Franco Mateo and Franco Villegas, that his duties include do-
ing maintenance as well as structural welding. (IX: 588.) He
testified that when he first began working for Respondent, the
four construction welders were presented to him as his “fellow
welders.” Jomez described the work performed by the four
construction welders as being the same work that he performed
(IX: 592). According to Jomez, 95 percent of his worktime is
spent doing structural welding work. (IX: 608.)
Discussion
It is well established that the duty to bargain includes a duty
to checkoff and remit union dues if there is a contractual basis
for doing so. Cherry Hill Textiles, Inc., 309 NLRB 268, 269
PAN AMERICAN GRAIN CO. 219
(1992). Article XXV of the parties’ agreement clearly imposes
such an obligation on the Respondent. The latter does not deny
refusing to deduct union dues for Franco Mateo, Marcelo
Franco Villegas, Daniel Castro, and Jorge Ortiz, but contends,
on brief, that it was justified in doing so because these four
employees do not share a community of interest with other
production and maintenance employees. The Respondent’s
contention is without merit.
The Respondent’s “community of interest” argument, in my
view, is nothing more than a post hoc attempt to justify its re-
fusal to comply with its contractual obligations. Support for
this proposition can be found in the fact that in its answer to the
complaint, the Respondent never asserted a lack of “community
of interest” as a defense to this allegation, and instead claimed
that it refused to discount union dues for these four individuals
because the Union had not provided it with the “correspondent
[dues-checkoff] authorization.” Its claim in this regard is spe-
cious at best, for the record evidence makes patently clear that
Figueroa did, in fact, present Juarbe with properly signed dues-
checkoff authorizations from all four employees on February
17, 2000, long before the Respondent filed its answer to the
complaint. Further, it would appear from the Respondent’s
February 27, 2002 letter to the Union notifying it of an upcom-
ing layoff of unit employees, which lists Franco Mateo,
Marcelo Franco Villegas, Daniel Castro, and Jorge Ortiz as unit
employees who would be affected by the layoff, and from the
company identification cards given to them when first em-
ployed identifying them as “welders” in the “maintenance”
department, that the Respondent, notwithstanding its claim to
the contrary, has treated and viewed these four individuals as
part of the bargaining unit. Finally, the evidence of record, and
in particular the testimony of the various employees who testi-
fied regarding their respective duties, convinces me that Franco
Mateo, Marcelo Franco Villegas, Daniel Castro, and Jorge
Ortiz work side-by-side with, and perform basically the same
work as, other unit welders, and thus share a community of
interest with them.
Accordingly, the Respondent’s claim that it was justified in
refusing to deduct union dues from Franco Mateo, Marcelo
Franco Villegas, Daniel Castro, and Jorge Ortiz because they
purportedly lacked a community of interest with other unit
employees is rejected as without merit. The Respondent’s fail-
ure to comply with its contractual obligation to deduct the dues
amounted to a refusal to bargain, and violated Section 8(a)(5)
and (1) of the Act, as alleged.
5. The demotion/reclassification of employees
The record reflects that David Arroyo Pino, Javier Garcia,
Rodolfo Rodriguez, and Luis Perez, all initially classified as A-
skilled employees, worked on the production line operating
what is known as a 20-pound rice-packing machine.28 Opera-
tion of the 20-pound machine is a purely manual function re-
quiring all four individuals to carry out a specific chore. Thus,
the machine operator’s duty is to manually fill bags with rice,
which are then sent along a conveyor belt to a second employee

28 While described at the hearing as a 20-pound machine, in actuality
the machine packs rice into 3-pound bags of 20 each. (III: 418.)
some 4 to 5 feet away whose job it is to sew up the bags of rice.
A third employee has responsibility for placing the sewn rice
bags onto pallets, and a fourth employee has the quality control
duty of ensuring that the bags have been sewn properly and to
look for other production defects. The fourth employee also
serves as a replacement whenever one of the other three em-
ployees has to leave the machine for some reason or another.
These four employees would often rotate to the other stations
so that each was able to perform all functions. The 20-pound
bag machine and conveyor belt system apparently was capable
of handling from six to seven bags at a time and generally pro-
duced approximately 45–50 pallets of rice per shift.
Jacobs testified that beginning sometime in March 2000 and
continuing through the months of April and May 2000, he be-
gan noticing a decline in the level of production at the 20-
pound machine. He explained that while the normal operation
of the machine generally produces between 45–50 pallets per
shift, the average number of pallets produced during these 3
months was between 20 and 25. Jacobs concluded from his
observation of the four employees working on 20-pound ma-
chine, e.g., Pino, Garcia, Rodriguez, and Perez, that they were
deliberately slowing down the production process and, thus,
engaging in a work slowdown prohibited under article 8, sec-
tion 1, of the parties’ collective-bargaining agreement. To re-
solve the problem, Jacobs instituted a progressive disciplinary
process for these four individuals consisting of verbal warnings,
followed by written warnings, suspensions, and finally reclassi-
fication to a lower job status or classification (VIII: 467–470).
The record reflects that in early May 2000, Garcia, Rodri-
guez, and Perez each received oral and written warnings advis-
ing that they were not meeting the production goal of process-
ing six to seven 20-pound rice packs through the conveyor
system at one time. Thus, on May 9, 2000, Garcia was notified
in writing that he had previously been verbally warned that,
while the production quota for the 20-pound machine was six to
seven packs at a time on the conveyor belt, he was only produc-
ing five. The following day, May 10, he received a written
warning for similar conduct and told that if his production level
did not meet company and A-skilled employee requirements, he
would be reclassified. On May 12, Garcia was notified in writ-
ing that effective May 15, 2000, he was being reclassified from
A skilled to nonskilled due to his failure to meet production
requirements. (See R. Exh. 2.)
Perez received similar warnings on May 9 and 10, and was
likewise warned on May 13, 2000, that his continued slowdown
in production might result in his “suspension from employment
or salary.” (See GC Exhs. 31–33.) Perez was likewise down-
graded or reclassified from A skilled to unskilled. Rodriguez
received similar warning letters (R. Exh. 20), and shortly there-
after was discharged for reasons unrelated to his alleged low
production.29 Although no similar disciplinary warnings were
produced for Rodriguez, Jacobs’ testimony that he began “a
process of progressive discipline . . . with these employees”
suggests that Rodriguez might very well have been the recipient
of such warnings (VIII:470).

29 Rodriguez was apparently terminated for threatening Gonzalez
(VIII: 480). His discharge is not alleged in this case to be unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD220
Jacobs claims that the production levels at the 20-pound ma-
chine improved to their normal levels following the action
taken against the four employees. It appears, and the Respon-
dent does not contend otherwise, that the downgrading or re-
classification of Garcia, Rodriguez, and Perez from A-skilled to
the nonskilled job category, occurred without prior notification
to the Union.
Discussion
The General Counsel contends that the downgrading or re-
classification of unit employees is a mandatory bargaining sub-
ject, and that the Respondent’s failure to notify and bargain
with the Union before demoting or reclassifying Garcia, Rodri-
guez, and Perez from A skilled to unskilled violated Section
8(a)(5) and (1) of the Act.30 The Respondent does not deny the
General Counsel’s claim that the reclassification of employees
is a mandatory subject of bargaining. Rather, the Respondent,
as it did with respect to its March 1, 2000 institution of the
training program, argues only that it had the right to unilaterally
downgrade or reclassify employees under the management
rights clause, e.g., article, section 1, of the contract. Thus, it
suggests implicitly that the language in the management-rights
clause constitutes a waiver by the Union of its right to bargain
over this subject matter.
The reclassification, demotion, or disciplining of employees
Garcia, Rodriguez, and Perez is a mandatory subject of bargain-
ing, as it relates directly to their wages, hours, and other terms
and conditions of employment. Artesia Ready Mix Concrete,
Inc., 337 NLRB No. 93 (2002) (not reported in Board vol-
umes); Washoe Medical Center, Inc., 337 NLRB 202 (2001);
Technicolor Government Services, 268 NLRB 258, 261 (1983).
The Respondent’s assertion that the Union waived its right to
bargain over this particular subject matter by agreeing to the
management-rights clause in the contract is without merit, for
the clause contains no specific mention of the Respondent’s
purported right to demote, downgrade, or reclassify employees
from one job classification to another. The clause, as previ-
ously described, only recognizes the Respondent’s general right
to “control, supervise, and manage the COMPANY in general,”
and its specific right over “the creation of new jobs, the elimi-
nation or changes of existing jobs, the service to be provided
and the scheduling of work.” Clearly, the right to downgrade
employees from one job classification to another is not among
the specific rights listed in the latter part of the management-
rights clause. Nor can one infer that said right was implicitly
bestowed on the Respondent by virtue of the general right
granted to it in article I, section 1, to “control, supervise, and
manage” its operations, for, as previously noted, the Board will
not infer a waiver of a statutory right from generally-worded
language in a management-rights clause. Further, the Respon-
dent does not contend, nor is there evidence to show, that this
particular subject matter was discussed during negotiations, or
that Respondent’s decision to downgrade or reclassify Garcia,
Rodriguez, and Perez was consistent with an established past
practice. Accordingly, no evidence has been produced by the

30 For reasons unknown, the General Counsel withdrew Pino’s name
from this particular allegation.
Respondent to show that the Union clearly and unmistakably
waived its right to bargain over the reclassification of employ-
ees. The Respondent’s unilateral decision to downgrade or
reclassify Garcia, Rodriguez, and Perez from the A-skilled to
the unskilled classification, without first notifying or bargaining
with the Union, was, therefore, unlawful and a violation Sec-
tion 8(a)(5) and (1) of the Act.
6. The change in Arroyo Pino’s work schedule
Pino initially worked for the Respondent as a temporary em-
ployee at its Arroz Rico facility from 1992 through May 8,
1995. During those 3 years, Pino was first on the payroll of
Pro-Tempo, and then on the payroll of Unique Search, both
temporary employment agencies (III: 440–441; GC Exhs. 26–
27). Pino subsequently became a full-time employee of the
Respondent. This conversion from temporary to permanent
employment status occurred by virtue of a settlement agree-
ment entered into between the Respondent and the Union on
May 3, 1995, resolving an arbitration dispute, whereby Pino
and a number of other temporary employees, including Geraldo
Reyes, Santos Martinez, and Angel Nieves, became regular
employees of the Respondent effective May 8, 1995 (GC Exh.
25).31
Pino remained a regular employee of the Respondent until
terminated sometime in July 2000. He testified that during his
employment, he operated the 20-pound machine as an A-skilled
employee. Sometime in March 2000, Pino, together with his
other coworkers on the 20-pound machine, e.g., Garcia, Rodri-
guez, and Perez, were moved from the first shift to the second
shift. According to Pino, he was told that the reason for the
shift change was because the Respondent was in the process of
installing new machinery, and that the facility would not have
sufficient power to run all the machines at one time on the same
shift, leading to the shutdown of the 20-pound machine, and the
transfer of its operators to the second shift (III: 431; 513–514).
Pino acknowledged that when the shift change occurred, the
20-pound machine was not operational (IV: 510.)
Plant Manager Jacobs testified that Pino’s and the other em-
ployees’ shift was changed because the Respondent had insti-
tuted “two new brands” which increased production. He claims
that this increase in production capacity did not allow for the
operation of three packing machines at one time on the same
shift. He explained that the plant has a maximum production
capacity of 30 tons per hour and that operation of the three
packing machines used in production, e.g., the ICA, a 60-pound
machine, and the 20-pound machine, would result in a 48–50
ton per hour production rate, thereby exceeding its maximum
capacity. To enable it to maintain its 30 tons per hour produc-
tion capacity, the Respondent opted to move operation of the
20-pound machine, which is the last one in the production
chain, along with its operational crew, to the second shift. As a
result, the 20-pound machine, Jacobs claims, is “practically
never” used on the first shift. (VIII: 453; 463.)

31 A list with the names of the temporary employees and the amount
of seniority time applied to them is contained in an attachment to the
May 8, 1995 agreement. The amount of seniority attributed to them,
according to language in the agreement, was to be used solely for layoff
and recall purposes.
PAN AMERICAN GRAIN CO. 221
Following his transfer to the second shift, Pino protested,
through Union Steward David Torres, to Supervisor Lejardi,
that he had greater seniority than others who purportedly stayed
on the first shift, namely Reyes, Martinez, and Nieves, and that
under the Arroz Rico bargaining agreement, employees having
the most seniority were entitled to work the first shift, which he
claims was the preferred one, if they so desired. (III: 433–434;
437.)
Discussion
The General Counsel contends that the reassignment of Pino
from the first to the second shift was a mandatory subject of
bargaining, and that the Respondent’s unilateral decision to
change Pino’s shift without notifying the Union or affording an
opportunity to bargain, was unlawful and a violation of the Act.
The Respondent does not deny unilaterally changing Pino’s
work shift, or that such a change is a mandatory bargaining
subject. It contends, however, that the right accorded it under
article 1, section 1, the management-rights clause, to “schedule
the work” of employees and to generally operate the business,
justified its unilateral decision to move Pino from the first to
second shift. (R. Br. 78.) Thus, it implicitly argues that the
Union’s agreement to such language in the management-rights
clause was tantamount to a waiver by the Union of its right to
bargain over any decision involving employee shift changes. I
find merit in the Respondent’s argument.
As previously described, the management-rights clause re-
serves exclusively to the Respondent the following rights: “the
elimination or changes of existing jobs . . . and the scheduling
of work.” While the clause makes no specific mention of a
right to change an employee’s shift, the exclusive right ac-
corded therein to the Respondent over the “scheduling of work”
for employees, in my view, logically encompasses the exclu-
sive right to unilaterally assign employees to different shifts.
Clearly, the movement of an employee from one shift to an-
other of necessity involves a change in that employees work
schedule. Thus, I find that the Union’s right to bargain over a
decision to move an employee from one shift to another was
clearly and unmistakably waived by the Union when it agreed
to the “scheduling of work” language in the management-rights
clause. The Respondent’s March 2000 decision, therefore, to
move Pino from the first to the second shift was, I further find,
consistent with the prerogative granted to it under the “schedul-
ing of work” language of the management-rights clause and not
unlawful. Accordingly, I shall recommend that this particular
allegation be dismissed.
7. The $500 bonus
The collective-bargaining agreement entered into by the par-
ties in 1998 covering employees at the Amelia plant (GC Exh.
3) included, in appendix B, a provision whereby the Respon-
dent agreed to pay each unit employee a bonus of $500 a year
in exchange for the elimination of certain benefits that had been
provided under articles VIII and X of the prior agreement.32

32 The provisions of the old contract replaced by app. B included a
“perfect attendance” and “sick leave” provision. Figueroa explained
that under the old contract’s “perfect attendance” provision, employees
received $50 a month for every month in which they did not miss a day
Under appendix B, the Respondent was to pay employees the
above amount on March 4 of the years 1998–2000, with an
additional payment to be made on June 5, 1998.33 The record,
more particularly Figueroa’s testimony, makes clear that the
Respondent did in fact comply with the above-payment sched-
ule. (II: 192.) The Respondent made no further payments after
the contract expired in 2000.
Figueroa claims that sometime in October 2000, during the
early stages of negotiations, he sent Respondent a letter setting
forth the changes the Union wanted to make to provisions in the
expired contract. One such change, he contends, included a
proposal to raise the amount of the bonuses set forth in appen-
dix B from $500 to $1000 (I: 104; GC Exh. 13). According to
Figueroa, during the negotiations, the parties agreed to retain
the bonus program described in appendix B at $500. He con-
tends, however, that despite reaching such an understanding,
the Respondent refused to sign the agreement (I: 113; II: 187).
Regarding the adoption of appendix B during the 1998 nego-
tiations, González testified that during those talks, he proposed,
and the Union agreed, to pay employees $2000 in four install-
ments in exchange for the elimination of certain benefits provi-
sions in the previous contract. He explained that once the last
payment was made in March 2000, no further payments were
made because the Respondent had complied with all the pay-
ments called for by appendix B. González contends that during
the November 2000 negotiations, Figueroa initially insisted that
the $500 bonuses were required to continue after expiration of
the contract, but that the latter subsequently agreed with the
Respondent’s position and notified union members that the
bonuses called for under appendix B were not required to be
paid beyond 2000, and that if employees wanted the bonuses to
continue, the matter would have to be renegotiated (VII: 519).
González was never asked to confirm or deny Figueroa’s claim
that the parties reached agreement during the negotiations to
continue the bonus program beyond 2000. Nor, for that matter,
was Figueroa asked during his rebuttal testimony to refute the
statements attributed to him by González during the November
2000 negotiations.
The only other testimony addressing the question of whether
the $500 bonuses specified in appendix B of the 1998 contract
were to continue beyond the year 2000, came from Union
Delegate Ivan Vazquez. Vazquez, who served on the negotiat-
ing committee, expressed the view that the last payment that
was to be made under appendix B was to occur on March 4,
2000. However, on further examination by the General Coun-
sel, Vazquez stated that he understood the agreement between
the parties to be that the $500-bonus payments were to be paid
every year on March 4. (VI: 22–25.) Vazquez’ testimony in

of work, and under the “sick leave” provision, employees could miss up
to 6 days for personal matters without affecting a bimonthly bonus of
$50 they purportedly received. (I: 101.)
33 During questioning by Respondent’s counsel, Figueroa stated that
under app. B, the $500 bonus was also to be paid in 2001 (II: 193.)
Respondent’s counsel appeared to be in agreement with Figueroa re-
garding the 2001 bonus payment (II: 196, L. 22). App. B, however,
makes no mention whatsoever of any payments having to be made in
2001.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD222
this regard was too confusing and ambiguous to be entitled to
any weight.
Discussion
The General Counsel contends that the Respondent’s discon-
tinuance of the $500 bonus amounted to unilateral change in
the unit employees’ term and conditions of employment and a
violation of Section 8(a)(5) and (1) of the Act. He asserts that
the language of appendix B contains “clear, specific and un-
equivocal language” stating that the bonus was to be paid to
union members on an annual basis. Further, while acknowledg-
ing that appendix B sets forth specific dates when such pay-
ments were to be made, the General Counsel nevertheless ar-
gues that the bonus was a mandatory subject of bargaining
which, under Board law, survives the expiration of the contract
and must be continued until the parties either reach a new
agreement or an impasse in bargaining. The Respondent
counters that its obligation under appendix B was limited to
making the $500 bonus payments on the dates specified only
during the 3-year term of the agreement, and denies that the
bonus payments were intended to continue after the contract
expired. I agree with the General Counsel.
It is well settled that, with some limited exceptions not appli-
cable here, the terms and conditions of employment established
in a collective-bargaining agreement generally survive the con-
tract’s expiration and cannot be changed absent agreement by
the parties or a bargaining impasse. NLRB v. Katz, 369 U.S.
736 (1962); also Quality House of Graphics, 336 NLRB 497
(2001); Mining Specialists, Inc., 330 NLRB 99, 105 (1999);
Coalite, Inc., 278 NLRB 293, 301 (1986). The Respondent
does not contend, nor is there any evidence to show, that either
requirement was satisfied here. Rather, its sole argument, as
noted, is that appendix B, by its very terms, limited the pay-
ment of the $500 bonuses to just the 3 years covered by the
Amelia contract. I find no such limitation in appendix B.
While appendix B does set forth the precise amounts and dates
on which the bonuses were to be paid out during each year of
the 1998–2000 Amelia contract, I find nothing in the wording
of appendix B to reflect an agreement by the parties that the
distribution of the bonuses would not continue once the con-
tract expired in 2000. In fact, the first sentence of appendix B,
which states that the Company agrees to pay each unionized
employee a bonus of $500 a year, could very well be read to
mean that the bonus payments were intended to be an ongoing
proposition and not necessarily limited to the 3 years covered
by the contract. In short, I find nothing in appendix B that can
reasonably be construed as an agreement between the parties
relieving the Respondent of its statutory obligation to continue
this term and condition of employment once the contract ex-
pired. See Mining Specialists, Inc., supra. Accordingly, by
unilaterally discontinuing and failing to maintain in effect the
$500 bonus program established under appendix B of its 1998–
2000 collective-bargaining agreement with the Union, the Re-
spondent, I find, violated Section 8(a)(5) and (1) of the Act, as
alleged.
8. The alleged performance of bargaining unit work
by nonunit employees
a. Complaint paragraph 10(g)
The complaint alleges several instances in which the Re-
spondent purportedly used nonunit personnel to perform bar-
gaining unit work, or used employees of one bargaining unit to
perform work generally performed by employees of another
unit.
Specifically, complaint paragraph 10(g) alleges that some-
time in August 2000, the Respondent utilized temporary or
administrative employees employed at the “La Zorra” ware-
house to perform maintenance work at the Arroz Rico facility
generally performed by unit B employees.34 In support of this
allegation, José Colón, a unit B employee at the Arroz Rico
plant, testified that in August 2000, he observed La Zorra em-
ployee, Polinar Alvarado, whom he described as being either a
temporary or an administrative employee at La Zorra, loading
and unloading material and doing mechanical work at La Zorra,
using equipment regularly used by unit B employees.35 Alva-
rado, he explained, continued to perform the above-described
unit work into either 2001 or 2002, and stopped doing so only
after being injured and going on disability or workman’s com-
pensation (IV: 578). Unit employee Francisco Aponte, em-
ployed as a grain elevator operator (Silo 12) at the Arroz Rico
plant, also recalls seeing Alvarado in August 2001 loading and
unloading trucks, and cleaning the area of the grain elevator,
work described by Aponte as bargaining unit work. He last
saw Alvarado doing such work towards the end of 2001 (V:
687–688).
The Respondent offered no evidence to refute Colón’s and
Aponte’s claim that Alvarado performed bargaining unit work
during the period stated by the latter, or their claim that Alva-
rado was a nonunit employee at the time he performed such
work.
Discussion
The complaint alleges, the General Counsel contends, and
the Respondent denies, that the performance of bargaining unit
work by Alvarado, a nonunit employee, violated the Act. I
agree with the General Counsel.
The Board has held that an employer violates Section 8(a)(5)
and (1) of the Act by reassigning work performed by bargain-
ing unit employees to others outside the unit without affording
notice or an opportunity to bargain to the collective-bargaining
representative. Harris-Teeter Super Markets, Inc., 307 NLRB
1075 fn. 1 (1992), citing Kohler Co., 292 NLRB 716, 720
(1989); A-1 Fire Protection, Inc., 273 NLRB 964, 966 (1984).
The assignment of unit work to nonunit employees, the Board

34 Although the complaint alleged that the “La Zorra” employees
were part of a separate bargaining unit, the record shows, and the Gen-
eral Counsel on brief agrees, that said employees were temporary or
administrative employees and not part of any established unit. (GC Br.
34). The General Counsel’s unopposed motion to amend the complaint
to correct the wording of par. 10(g), to reflect that “La Zorra” employ-
ees were “nonunit” employees, is granted.
35 The Respondent admits that Polinar was a temporary employee
employed at La Zorra and not part of the bargaining unit (IV: 623–
624).
PAN AMERICAN GRAIN CO. 223
has explained, affects the unit employees’ terms and conditions
of employment, as it has the potential to affect the scope of the
bargaining unit. Antelope Valley Press, 311 NLRB 459, 460–
461 (1993). Such an assignment of unit work to nonunit em-
ployees, as occurred here, was, therefore, a mandatory subject
of bargaining which the Respondent was not free, absent a clear
and unmistakable waiver by the Union of its right to bargain
over the matter, to unilaterally make said work assignment
without giving the Union prior notice and an opportunity to
bargain.
The Respondent does not dispute that the assignment of unit
work to nonunit employees is a mandatory subject of bargain-
ing. Rather, in what appears to be a waiver defense, the Re-
spondent, on brief, makes reference to two contract provi-
sions—article XI, section 4 and article XXI, section 4—which
it contends allows it to assign unit work to nonunit employees.
Regarding article XI, section 4, that provision prohibits the
Respondent from assigning unit work to supervisors and ad-
ministrative employees while there are unit employees on lay-
off status, and from taking overtime work away from unit em-
ployees. While the provision makes no mention whatsoever of
any right by the Respondent to assign unit work to nonunit
employees (e.g., to supervisors and administrative employees),
the Respondent’s further assertion on brief—that the General
Counsel had not shown that there were any unit employees on
layoff when Alvarado was observed performing unit work—
boils down to a claim that the ban in article XI, section 1, on
the performance of unit work by nonunit employees while unit
employees are laid off, should be read as implicitly authorizing
the assignment of unit work to nonunit employees during
nonlayoff periods.
The Respondent makes a similar argument with respect to ar-
ticle XXI, section 4, which permits the Respondent to employ
temporary employees indefinitely provided they do not take
work away from permanent employees.36 This provision, like
article XI, section 4, contains no mention of any purported right
by the Respondent to assign unit work to temporary employees.
However, the Respondent’s assertion on brief, that the General
Counsel produced no evidence to show that the unit work per-
formed by Alvarado or any other temporary employee had the
“negative effect of taking away work opportunities [from] unit
employees,” suggests that it has the implicit right under article
XXI, section 4 to assign unit work to temporary employees so
long as such assignments do not result in a loss of work oppor-
tunities for unit employees. (R. Br. 87–88.)
The Respondent’s reliance on articles XI and XXI to support
its waiver defense is without merit for, to prevail on such a
defense, the Respondent, as discussed in footnote 21, supra,
must show that the subject matter at issue was expressly waived
by the Union in the contract or, in the absence of such specific
language, that the matter was waived during recent contract
negotiations or via an established past practice. Here, neither

36 See GC Exh. 2, art. XI, sec. 4; art. XXI, sec. 4. No translation of
these provisions was provided by either party at the hearing. However,
the Respondent, on brief (R. Br. 86), has provided a fairly accurate
translation of art. XI, sec. 4, and a somewhat accurate partial translation
of art. XXI, sec. 4.
article XI nor article XXI contains any specific reference to or
mention of the Respondent’s purported right to assign bargain-
ing unit work to nonunit employees. Article XI, section 4, as
noted, serves only to prohibit the Respondent from assigning
unit work to nonunit employees during layoffs, but does not
expressly authorize the assignment of such work during
nonlayoff periods.37 Article XXI, section 4 similarly recog-
nizes the Respondent’s right to use temporary employees pro-
vided they do not take work away from unit employees, but
does not expressly grant the Respondent the right to assign unit
work to temporary employees when such assignments might
theoretically not cause a diminution in work opportunities for
unit employees.38
Further, the Respondent does not contend, nor, for that mat-
ter, is there any record evidence to show, that the subject of the
assignment of unit work to such nonunit employees as supervi-
sors, administrative, or temporary employees was ever dis-
cussed or explored during their contract negotiations, or that the
performance of unit work by nonunit employees was consistent
with an established past practice. In these circumstances, I find
that the Respondent has not met its burden of showing that the
Union clearly and unmistakably waived its right to receive
notice of, and to be afforded an opportunity to bargain over, the
Respondent’s assignment of unit work to nonunit employees.
Accordingly, the Respondent’s failure to do so with respect to
Alvarado’s performance of unit work violated Section 8(a)(5)
and (1) of the Act.
b. Complaint paragraph 10(h)
Aponte also testified, in support of the allegation in com-
plaint paragraph 10(h), that in August 2000, he observed unit A
employees Vicente Martínez, Angel Medina, and Alberto Ortiz
doing unit B work at Silo 12.39 Specifically, he claims to have
observed on many occasions Martínez loading trucks and
cleaning the area around Silo 12, and that he last saw him doing
this work towards the end of 2001. Aponte recalls that another
grain elevator operator, Juan Garcia, was with him when he
first observed Martínez doing unit B work in August 2000.
Discussion
The General Counsel contends that the work at Silo 12 was
unit B work, and that by transferring unit A employees from the
Amelia facility to Silo 12 to do work belonging to unit B em-
ployees, the Respondent violated Section 8(a)(5) and (1) of the

37 Indeed, it would, in my view, have been highly anomalous for the
Union to have included a prohibition in the contract against the Re-
spondent assigning unit work to nonunit employees during layoff peri-
ods but to have allowed such assignments during nonlayoff periods.
38 The Respondent’s assertions regarding the General Counsel’s fail-
ure to show, with respect to art. XI, sec. 4, that unit employees were on
layoff, and, with respect to art. XXI, sec. 4, that unit employees were
deprived of work opportunities by the assignment of unit work to non-
unit employees, appears to be nothing more than an attempt to shift the
burden of proof regarding its waiver defense to the General Counsel.
As noted, the burden of proving a waiver of a statutory right rests
squarely with the party asserting said defense. TCI of New York, supra.
39 The Respondent operates 12 silos in all. Curet testified, without
contradiction, that Silos 1–11 are generally used to store rice, while
Silo 12, since 1998, has been used to store corn. (VII: 324.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD224
Act. The Respondent disputes the General Counsel’s claim that
the work at Silo 12 is unit B work. Rather, it contends that Silo
12, which, as noted, is used to store corn, is an integral part of
its grain feed operation run out of the Amelia facility. Thus, it
insists that Silo 12 “serves exclusively to provide raw material
to the Amelia and Corujo animal feed operations” and that the
work there consequently belongs to unit A and not unit B (R.
Br. 89–90).
I agree with the General Counsel. The merits of this particu-
lar allegation hinge on whether the work at Silo 12 was unit A
or unit B work. Aponte, as noted, testified that the Silo 12
work has long been performed by unit B employees, and that he
saw employees Martinez, Medina, and Ortiz, whom he de-
scribed, as unit A employees, doing unit work at Silo 12 during
2000 and 2001. The Respondent has offered no evidence to
contradict Aponte’s claim of seeing Martinez, Medina, and
Ortiz working at Silo 12, or his assertion that all three are
members of unit A. Nor, for that matter, has it presented any
evidence to dispute Aponte’s claim that the work at Silo 12 was
unit B work. The Respondent, instead, cites certain testimony
by Curet that Silo 12 has always been used to store corn, and
points out that Aponte himself testified in similar fashion. It
insists that given the purpose of Silo 12, e.g., to store corn to be
used in connection with the processing of animal feed at the
Amelia facility where unit A employees work, it follows that
the work at Silo 12 must have been unit A, not unit B, work.
Its assertion in this regard, however, is based not on any record
evidence but rather on speculation and conjecture. The mere
fact that corn is stored in Silo 12, and that it is used in connec-
tion with the processing of grain feed at the Amelia facility, in
my view, does not, without more, constitute proof that the work
done at Silo 12, was unit A work. Curet, it should be noted,
never actually refuted Aponte’s testimony that the Silo 12 work
was generally done by unit B employees. Rather, Curet testi-
fied only as to Silo’s 12 purpose and function, and was never
questioned on which group of employees, unit A or unit B,
regularly worked at Silo 12.
Accordingly, I credit Aponte and find that the Silo 12 work
was unit B work, and that during 2000 and 2001, the Respon-
dent assigned unit A employees to perform work in Silo 12
generally performed by unit B employees. Thus, I agree with
the General Counsel and, for reasons discussed above in con-
nection with the allegation in complaint paragraph 10(g), find
that such an assignment of unit work to nonunit employees
constituted a further violation of Section 8(a)(5) and (1) of the
Act.
c. Complaint paragraphs 10(i)–(j)
Colón further testified, in support of the complaint allegation
in paragraph 10(i), that in November 2000, he observed two
nonunit administrative employees, Luis Negrón and Hernan
Sáenz, whom he described as “checkers,” operating forklifts,
which work, he claims, was bargaining unit work. Colón de-
scribed “checkers” as nonunit employees who regularly work in
the dispatch area and are responsible for directing the forklift
operators as to the material or cargo that is to be loaded onto
trailers. Colón contends that as of the date of the hearing, Ne-
grón and Sáenz were still performing the unit work of operating
the forklifts.
Regarding complaint allegation 10(j), Colón testified that he
observed Sáenz and temporary employee Norberto Butter in
November 2000, doing bargaining unit work in the dispatch
area adjacent to his own work area in the Arroz Rico facility
(IV: 581). He claims that both had been employed in the
ALCA warehouse as either a temporary or administrative em-
ployee, although he admitted on cross-examination that he did
not know precisely what positions these two held at ALCA (IV:
635). However, he recalls that during the period in question,
Butter was “occupying the unionized position in charge of
vans,” while Sáenz was “performing checker duties.”(IV: 581.)
Discussion
The General Counsel contends that the assignment of unit
work to nonunit employees Butter and Saenz violated Section
8(a)(5) and (1). The Respondent’s position regarding these
allegations is the same as that asserted in connection with its
defense to complaint paragraph 10(g), to wit, that the General
Counsel produced no evidence to show that such work assign-
ments “was contrary and/or proscribed by the collective-
bargaining agreement applicable to the Arroz Rico production
and maintenance employees.” (R. Br. 88.) I agree with the
General Counsel and find, for the reasons discussed in connec-
tion with complaint paragraph 10(g), that the Respondent’s
unilateral assignment of unit work to nonunit employees Butter
and Saenz in November 2000 violated Section 8(a)(5) and (1)
of the Act.
d. Complaint paragraph 10(k)
Finally, Colon and Aponte both testified to seeing production
supervisors doing bargaining unit work. Thus, Colón claims
that in August 2000, he observed Supervisor Luis Rivera oper-
ating ICA machine 3, and saw Supervisor José Ramirez operat-
ing a forklift in the mill area of the plant. As to Rivera, Colón
recalls that Rivera operated the ICA 3 machine for an entire
shift (2–10 p.m.) because the person who normally operated the
machine did not report for work that day. As to Ramirez, Co-
lon claims he observed him operating a forklift for some 10–20
minutes engaging in what he described as a “big bag move-
ment,” which, according to Colon, is typically performed by
unit personnel (IV: 641). Colon’s testimony as to what he ob-
served Supervisors Rivera and Ramirez doing was uncontra-
dicted and is therefore credited.
Aponte’s testimony on the other hand, while also uncontra-
dicted, nevertheless was not very convincing. He testified to
having seen Rivera on just one occasion standing next to the
ICA 2 machine as he went to get a drink of water. Although he
initially stated that his observation of Rivera standing in front
of the ICA 2 machine lasted just a few seconds, he subse-
quently stated, somewhat inconsistently, that Rivera in fact
stayed in front of the machine the entire shift (V: 699;704). I
find Aponte’s claim that he observed Rivera in front of the
machine during the entire shift not to be credible. Rather, I find
his former claim, that he saw Rivera standing in front of the
ICA 2 machine during the few seconds it took for him to get
some water, to be more believable. Aponte also claims to have
seen Supervisor Eduardo Aldeano on two separate occasions
PAN AMERICAN GRAIN CO. 225
standing near the ICA 1 machine, and asserts that his observa-
tions in this regard again occurred as he was on his way to get a
drink of water.40 These incidents, according to Aponte, oc-
curred in August 2000.
Aponte readily admitted having no familiarity with the ICA
1 and 2 machines, raising a question as to how he would have
known if Rivera and/or Aldeano were indeed operating the
machines in question. That Aponte, by his own admission,
only witnessed Rivera and Aldeano simply standing in front of
or next to the machines adds further uncertainty to the question
of whether either of these supervisors was indeed running the
ICA machine. (V: 704.) In these circumstances, I find
Aponte’s testimony as to what he observed Supervisors Rivera
and Aldeano doing simply too tenuous and vague to support a
claim that the latter were operating the ICA machines sometime
in August 2000, and, thus, possibly engaged in performing
bargaining unit work.
Aponte also testified to seeing another supervisor, Leonardo
Martin, in August 2000, operating a 20-pound machine for
several minutes, and Supervisor Jose Ramirez sewing the bags
of rice coming off the 20-pound machines and repairing a sew-
ing machine. Ramirez, Aponte claims, performed this work
during the entire 15 minutes that he, Aponte, was on break (V:
709). According to Aponte, there were two other unit employ-
ees working on the 20-pound machine while Ramirez did the
sewing and repairs. Given Aponte’s dubious testimony as to
what he observed with respect to Supervisors Rivera and Al-
deano, I remain skeptical of what Aponte actually saw Supervi-
sors Martin and Ramirez doing. Thus, the fact that he may
have observed Martin operating the 20-pound machine for a
few minutes hardly serves to establish that Martin was in fact
performing bargaining unit work. It is quite possible, for ex-
ample, that Ramirez may only have been testing or trouble-
shooting the machine. Nor do I find plausible Aponte’s claim
that he spent his 15-minute break watching Supervisor Ramirez
sewing rice bags on the 20-pound machine.
Discussion
The General Counsel contends the unit work performed by
the above-described supervisors violated Section 8(a)(5) and
(1) of the Act. I find merit in the allegation but only with re-
spect to the work that Colon observed Rivera and Ramirez
doing in August 2000, to wit, the former operating the ICA
machine 3 during an entire shift, the latter, Ramirez, operating a
forklift to perform a “big bag movement.” This evidence, as
noted, was not challenged by the Respondent. Rather, the Re-
spondent’s sole defense to this conduct, identical to that raised
with respect to the allegation in complaint paragraph 10(g), is
that the performance of unit work by supervisors under article
XI, section 4 is prohibited only when unit employees are laid
off and, by implication, not on other occasions, such as during
nonlayoff periods. For reasons discussed in my findings re-
garding complaint paragraph 10(g), the Respondent’s argu-
ment, that the performance of unit work by Supervisors Rivera

40 Although Aponte initially stated that both Rivera and Aldeano
were operating the ICA machines, he subsequently admitted that he
only observed the two supervisors standing in front of, and not neces-
sarily operating, the machines.
and Ramirez in August 2000, was not unlawful, is found to be
without merit. I further find, therefore, that the Respondent
violated Section 8(a)(5) and (1) when, without giving the Union
notice or an opportunity to bargain, it allowed Rivera and Ra-
mirez in August 2000 to perform bargaining unit work. The
other alleged instances described by Aponte, of supervisors
purportedly engaging in bargaining unit work, are simply too
vague and tenuous to support a violation. I shall, therefore,
recommend dismissal of these latter allegations.
9. The alleged failure to provide the Union with
relevant information
The record reflects that on or about June 4, 1997, the Union
was recognized by the Respondent as the exclusive bargaining
representative of all “drivers and helpers” used at the Arroz
Rico and Amelia facilities.41 (GC Exh. 22.) On August 16,
2000, Figueroa wrote to Respondent’s attorney, Robles, re-
questing certain information relating to the drivers’ unit, which
information, Figueroa pointed out in the letter, was needed by
the Union in furtherance of ongoing contract negotiations it was
having with the Respondent (GC Exh. 23).42 Figueroa testified,
without contradiction, that the Respondent never answered its
August 16, 2000 letter. On September 8, 2000, Figueroa again
wrote to Robles that he had not yet received a response or the
information requested in his August 16 letter, and cautioning
that the Respondent’s refusal to reply within 5 days would be
viewed by the Union as a refusal to bargain (GC Exh.-24).
Figueroa testified that, to date, the Respondent has not com-
plied with its information request (II:187).
Discussion
The complaint alleges, and the General Counsel contends,
that the Respondent never complied with the Union’s informa-
tion request, and that its failure and refusal to do so violated
Section 8(a)(5) and (1) of the Act. The Respondent, in its an-
swer, denied the above allegation and claimed, instead, that the
information requested by the Union in its August 16, 2000 let-
ter had already been provided. The Respondent’s posttrial
brief, however, is silent on this issue. I find merit in the com-
plaint allegation.
An employer has a statutory obligation to provide, on re-
quest, relevant information that might be needed by a union for

41 The unit appears to be the one described in the complaint as unit
C, which includes:
All chauffeurs and chauffeurs helpers employed by the Respondent at
its facilities in Amelia Industrial Park, and Bo. Sabana rice plant in
Guaynabo, and Corujo in Bayamon, but excluding all other employ-
ees, guards, and supervisors as defined by the Act.
42 In its request, the Union asked to be provided with the following
information: (1) Whether the Respondent had sold the trucks presuma-
bly driven by its drivers; (2) if so, to whom they were sold, the selling
price, whether and what type of financing was provided; (3) if the
trucks were sold to unit employees, why the Union was not notified of
the sale and why the sale was not negotiated with the Union; (4) why
drivers’ unit employees were transferred to the production and mainte-
nance unit without notifying or bargaining with the Union; (5) the
number of employees remaining in the drivers’ unit, their duties, and
the types of trucks, if any, they are driving; and (6) whether there is any
truck being driven by a unionized employee who is not part of the
drivers’ unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD226
the proper performance of its duties as a collective-bargaining
representative. NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152
(1956); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436
(1967); Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979).
When the information sought by a union pertains to the terms
and conditions of employment of employees within the bar-
gaining unit it represents, the information is deemed to be pre-
sumptively relevant to the union’s proper performance of its
bargaining obligations. Watkins Contracting, Inc., 335 NLRB
222 (2001). Where the information sought is presumptively
relevant, the employer has the burden of proving lack of rele-
vance. Hofstra University, 324 NLRB 557 (1997).
The Respondent here has not questioned the relevancy of the
information sought by the Union in its August 16, 2000 request.
Indeed, as stated, its sole defense, set forth in its answer, is that
it has already complied with the request. Accordingly, I find
that the information requested by the Union was indeed rele-
vant. Watkins Contracting, supra. As to its claim that the in-
formation has already been provided, Figueroa testified under
oath to the contrary. The Respondent, for its part, offered no
testimonial or documentary evidence to refute Figueroa’s
claim, or to demonstrate that it has in fact complied with the
Union’s information request. Accordingly, I credit Figueroa
and find that the Respondent has yet to furnish the Union with
the information requested in its August 16, 2000 letter. Its
failure to do so, therefore, constituted a violation of Section
8(a)(5) and (1) of the Act, as alleged.
10. The alleged March 20, 2000 comments by
Supervisor Aldeano
Pino testified that on or around March 20, 2000, following a
meeting held between Supervisor Aldeano and those employees
who worked on the 20-pound machine, Aldeano told employees
that they should do what Michael Martinez, a former employee
turned supervisor, had done, to wit, “turned his back entirely on
the Union and give his support to the Company.” Aldeano,
Pino claims, stated that employees stood to gain by doing so,
and that if they filed a charge with the Board, employees would
either lose or it would take several years to resolve because
“Gonzalez had money to pay.” Pino testified that employees
present at this meeting included Felipe Ramos, Luis Perez,
Javier Garcia, and Rodolfo Rodriguez. (III: 421–422.) Perez
provided some corroboration for Pino’s testimony. Thus, he
testified that Aldeano told him and other employees sometime
in April 2000, that they should do what Martinez had done and
change sides and leave the Union. (IV: 670.)
Aldeano generally denied making any antiunion remarks to
any employee. (VII: 392.) His denial in this regard, prompted
by leading questions from Respondent’s counsel, was not
credible. Rather, I found Pino and Perez to be more believable
and accept as true their claim that Aldeano suggested that they
abandon the Union. I also find credible Pino’s assertion that
Aldeano told them it would be futile to file any charges with
the Board because they would lose, or because Gonzalez had
enough money to delay the matter for years.
Discussion
The complaint alleges that Aldeano’s remarks were coercive
and a violation of Section 8(a)(1) of the Act. The Respondent
contends that Aldeano never made the remarks attributed to
him by Pino and Perez, and that even if he had, the remarks
were only an expression of Aldeano’s personal views, and,
thus, protected under the free speech proviso of Section 8(c) of
the Act.43 I find merit in the allegation.
As found above, Aldeano did in fact suggest to Pino and
Perez on or around March 20, 2000, that they abandon the Un-
ion and throw their support to the Company. Aldeano, how-
ever, did more than simply encourage them to abandon the
Union. Rather, by making reference to the fact that former
employee, Martinez, became a supervisor following the latter’s
withdrawal from the Union, and telling Pino and Perez that they
stood to gain if they followed suit, Aldeano implicitly, if not
explicitly, promised that Pino and Perez, like Martinez, would
be similarly rewarded, possibly through promotion into Re-
spondent’s supervisory ranks, if they withdrew their support
from the Union and supported the Respondent instead. Al-
deano’s encouragement to Pino and Perez that they abandon the
Union, conditioned as it was on a promise of benefit, does not
fall within the protective ambit of Section 8(c), as claimed by
the Respondent, but rather was coercive and amounted to a
violation of Section 8(a)(1) of the Act. Multi-Ad Services, 331
NLRB 1226 (2000); Gencorp, 294 NLRB 717 (1989); Heads &
Threads Co., 261 NLRB 800, 809 (1982).
11. The June 2001 bargaining sessions
a. The June 11 events
In and around June 11–14, 2001, the Respondent and the Un-
ion were engaged in negotiations for a new contract covering
employees at the Amelia/Corujo plant, as well as the Annex
and dock facilities. At these negotiations, the Union was repre-
sented by A. Figueroa, Alberto Ortiz, Ivan Vazquez, Ruben
Báez, Edwin Román, Andrés Sandoval, and Andrés Agosto.44
González, Juarbe, and Curet represented the Respondent.45

43 Sec. 8(c) provides, in relevant part, that “[t]he expressing of any
views, argument, or opinion ... shall not constitute or be evidence of an
unfair labor practice . . . if such expression contains no threat of reprisal
or force or promise of benefit.”
44 Vazquez testified that A. Figueroa was chosen to be the Union’s
chief spokesperson during those negotiations because of an existing
conflict between Gonzalez and Figueroa (III: 349–350).
45 Gonzalez testified that he initially refused to take part in the nego-
tiations because he did not want to be in the same room with Figueroa,
whom he accused of trying to assault him (Gonzalez), and of conspiring
to murder or assassinate him. (VIII: 533–534; 538–539.) He claims,
however, that sometime in March 2001, employees Carlos Fernandez
and Juan Vazquez asked him to join the negotiations because they were
tired of its slow pace. These two employees, Gonzalez claims, had on
prior occasions made similar requests of him. He further claims he told
the employees that he would be willing to join the negotiations if the
meetings could be held in the company offices and not at the Dept. of
Labor, if they could find a solution to his problem with Figueroa be-
cause he was not going to be in the same room with Figueroa, and
provided he, Gonzalez, was not assaulted or insulted. He testified that
soon thereafter, A. Figueroa called him and said that he, A. Figueroa,
would be heading the Union’s bargaining team, and wanted the meet-
ings held at the company offices, and asked if Gonzalez was willing to
take part in the negotiations. Gonzalez claims he agreed to do so.
(VIII: 535–537.)
PAN AMERICAN GRAIN CO. 227
Ortiz gave the following account of what occurred during the
June 11, 2001 session. He recalls that as he, A. Figueroa, and
the others were seated at a table awaiting the start of negotia-
tions that day, Gonzalez entered the room and instructed A.
Figueroa to move because the latter purportedly was sitting in
his chair. A. Figueroa apologized to Gonzalez, stating that he
knew everything in the room belonged to Gonzalez. The par-
ties then began discussing the drug provision of the existing
contract. Regarding this provision, the Respondent sought to
have the word “drugs” replaced with the term “control sub-
stances.” However, according to Ortiz, A. Figueroa opposed
any such change in the wording of the provision and suggested
that the language be left alone as the contract was about to ex-
pire. Gonzalez responded that he did not like the provision and
wanted to change the language.
After some discussion, the bargaining session ended and the
parties left. Ortiz recalls that on leaving the premises, he and
the other union representatives huddled in the parking lot to
discuss the events of the day. However, on seeing Gonzalez,
Juarbe, and Curet approaching, Ortiz and the others dispersed
to their vehicles. Ortiz claims that as he and Vazquez got into
Ortiz’ vehicle, Gonzalez approached, opened the passenger-
side door, and asked Vazquez what had happened at the bar-
gaining table. Both Juarbe and Curet, according to Ortiz, were
present during this encounter (II: 328). Gonzalez then told
Vazquez that the drug test language he was proposing was bet-
ter for employees than the one currently in the agreement.
Vazquez responded that he did not believe that to be the case.
Gonzalez then directed himself to Ortiz and asked if he, Ortiz,
knew whether drugs or alcohol were being used at the Respon-
dent’s facilities, but Ortiz denied having any such knowledge.
Gonzalez, Ortiz claims, then turned back to Vazquez and asked
if knew that the Union was bankrupt. Vazquez replied that that
was Figueroa’s and A. Figueroa’s problem. Gonzalez purport-
edly then stated that he did not want Figueroa coming to the
plants anymore. Vazquez responded that Gonzalez should not
allow the problem between himself and Figueroa to interfere
with the collective-bargaining process. Ortiz recalls that at one
point, he suggested to Vazquez that they should leave because
he was tired, and that, soon thereafter, he heard Gonzalez tell
Vazquez that he (Gonzalez) had a salary increase in store for
employees (II: 311–312; 330). According to Ortiz, Gonzalez
directed himself mostly to Vazquez during this conversation,
and that while other things were said, he could not recall much
more of the conversation. (II: 308–311.)
Vazquez corroborated much of Ortiz’ testimony regarding
what transpired between him and Gonzalez in Ortiz’ vehicle on
June 11, 2001. Thus, he confirmed that Juarbe and Curet were
present during this encounter, that Gonzalez asked if he knew
that the Union was bankrupt, and that Gonzalez at one point
asked Ortiz if Respondent’s employees used drugs and alcohol
(III:352; 355; 379–380). Vazquez recalls discussing A. Figue-
roa with Gonzalez. He testified that he told Gonzalez that A.
Figueroa was handling the negotiations so as to avoid conflict
between Gonzalez and Figueroa. He further recalls stating that
Gonzalez himself had expressed a preference of having A. Fi-
gueroa at the bargaining table. Gonzalez purportedly admitted
that he indeed had asked to have A. Figueroa, instead of his
son, Figueroa, at the bargaining table, but that he had come to
realize that A. Figueroa and Figueroa “had the same blood.”
(III: 357.)
According to Vazquez, during this encounter in Ortiz’ vehi-
cle, Gonzalez suggested that negotiations take place only be-
tween members of the parties’ committees, without Gonzalez or
any union official being present, and that if any agreements
were reached, the committees would submit the agreements to
their principals, e.g., Gonzalez and Figueroa for review and
approval. Under Gonzalez’ alleged proposal, negotiations
would, thus, occur only between Juarbe and Curet for the Re-
spondent, and the above-named employee representatives, sans
A. Figueroa or Figueroa, for the Union. Vazquez told Gonzalez
he would take the latter’s proposal to the Union’s committee
for consideration and would get back to him. Vazquez, how-
ever, never got back to Gonzalez on the matter. (III: 359–360.)
Finally, Vazquez claims that at one point during this conversa-
tion, Gonzalez asked him and Ortiz if they wished to hear the
recording containing Figueroa’s alleged threat, but Vazquez
declined to do so, noting that this was a personal problem be-
tween him and Figueroa and that this was the reason why there
were problems with the negotiations (III: 375).
As to the June 11, 2001 bargaining session, Gonzalez gener-
ally confirmed that the parties disagreed on whether the drug
language in the current contract should be changed. Gonzalez,
however, was never asked to confirm or deny having a conver-
sation with Vazquez and Ortiz in the latter’s vehicle in the
parking lot after the meeting; he did deny, in general terms and
in response to a leading question from Respondent’s counsel,
commenting about the Union being bankrupt. (VIII: 527–528.)
Gonzalez, however, did not deny telling Vazquez that he and
other employee representatives on the Union’s bargaining team
should negotiate directly with Respondent’s bargaining repre-
sentatives without a union official or himself being present, or
telling Vazquez that he and other employees had a salary in-
crease coming. Juarbe, who, according to Ortiz and Vazquez,
was present when Gonzalez made his remarks, was not asked to
confirm or deny whether such remarks were made.
I credit Ortiz’ and Vazquez’ mutually corroborative, and un-
challenged, assertion that Gonzalez approached both of them
while they were in Ortiz’ car following the meeting and en-
gaged in some discussion. Thus, I find that Gonzalez suggested
to Vazquez during that encounter that he and other members of
the Union’s bargaining team negotiate directly with Respon-
dent’s management team without the presence of any union
official or Gonzalez, and that the union officials and Gonzalez
would become involved only after the employee representatives
and the management team came to an agreement. I also find
that he told Vazquez that employees could expect a raise, and
that the Union was bankrupt. While Gonzalez generally denied
ever having commented that the Union was bankrupt, his denial
in this regard was not credible. I believe instead, as asserted by
both Ortiz and Vazquez, that Gonzalez indeed asked Vazquez
during their conversation if he knew the Union was bankrupt.
b. The June 13, events
Ortiz and Vazquez also testified about a June 13, 2001 nego-
tiating session involving the question of the 15-minute em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD228
ployee break. Vazquez recalled that during that meeting, when
A. Figueroa sought to caucus with his team on the issue, Gon-
zalez stated that he was not there to waste time. A. Figueroa
purportedly told Gonzalez that the purpose of the caucus was to
discuss and hopefully clarify any misunderstandings that might
arise on a particular issue. When Gonzalez asked A. Figueroa
how much time he needed for the caucus, the latter responded,
“whatever amount of time is necessary.” According to
Vazquez, Gonzalez and his team then left the room to allow the
Union to caucus but returned some five minutes later, at which
time A. Figueroa tells him his team was still caucusing. Gon-
zalez and his team again left the room but purportedly returned
some 5 to 10 minutes later, only to be told again by A. Figueroa
that they had not yet finished caucusing. Gonzalez, Vazquez
recalls, then banged his hand on the table and sat down. A
short while later, A. Figueroa told his team, “Let’s get the hell
out of here.”
Agosto, a member of the Union’s bargaining committee, at-
tended the June 13 session and described the “caucusing” inci-
dent between A. Figueroa and Gonzalez. He recalls the meet-
ing began with a discussion of the employees’ breaktime, and
that after the parties stated their respective positions, A. Figue-
roa indicated he needed to caucus with his team to discuss the
Company’s proposal. Agosto claims that Gonzalez became
upset and stated that his time was valuable and that he had no
time to waste on caucuses. Gonzalez nevertheless left the room
presumably to allow the Union to caucus. However, he re-
turned some 5 to 10 minutes later and stated he could not waste
any more time, to which A. Figueroa responded that Gonzalez
could not impose his manner of negotiating on him, and that
Gonzalez had to give him some time to discuss the proposal.
Acosta recalls Gonzalez responded to A. Figueroa but admits
he did not hear what Gonzalez said. At that point, A. Figueroa
stood up and, in an upset tone, stated, “I’m going to hell, I can-
not tolerate this.” The meeting, Agosto recalls, ended at that
point. (IV: 559–560.)
Gonzalez recalls that the June 13 bargaining session dealt
with the 15-minute break for employees. He contends that on
arriving at the meeting, he wanted to begin negotiations imme-
diately but A. Figueroa stated he was not ready to start and
needed to caucus with his team first. Gonzalez protested that
they were ready to begin, but after some discussion left the
room and allowed the Union to caucus. When he returned 10
minutes later, A. Figueroa stated he was not yet ready to pro-
ceed, and Gonzalez, after some protestation, again left the
room. He returned 10 minutes later at which time the parties
began their negotiations. After some discussion, A. Figueroa,
according to Gonzalez, again said he needed to caucus with his
team. Gonzalez and his team left and, on returning some 15
minutes later, was purportedly told by A. Figueroa that he did
not want to be rushed. Gonzalez responded that A. Figueroa
should come prepared to the negotiations because he did not
have time to waste.
Gonzalez testified that the Company’s position throughout
the negotiations was that the contract language should be suffi-
ciently clear so as to prevent misinterpretations. He explained
that since A. Figueroa stepped down as union president, the
Respondent had gone from handling few if any arbitrations to
some 200 cases under Figueroa’s presidency, creating a huge
expense for the Company. Thus, he claims he told A. Figueroa
that while the latter was the one negotiating the contract for the
Union, he was not the one who would be administering the
contract on a day-to-day basis. It was for this reason that he
purportedly told A. Figueroa that the contract language agreed
upon should be clear enough so that anyone reading it would
know exactly what was meant. Gonzalez claims that A. Figue-
roa responded by telling him to “go to hell,” that he did not
need “to take this shit” from Gonzalez, then got up and left with
his team, ending the meeting. (VIII: 529–531.)
Juarbe, who was also present at this meeting as a member of
the Respondent’s bargaining team, recalls that the purpose of
the session was to discuss the employees’ rest period. He
claims that at one point during this meeting, Gonzalez stated
that if the Union wanted him to be at the negotiations, they
would have to expedite matters because he was going to be
away for approximately 2 months; otherwise, the negotiations
would have to await his return. Juarbe testified that the meet-
ing lasted between 1 and 2 hours, and that towards the end of
the meeting, A. Figueroa “suddenly and very unexpectedly” got
up from his chair, told Gonzalez that “he didn’t have to take
this shit anymore and to go to hell.” (VI: 169.) A. Figueroa and
his bargaining team then packed up their things and left.
On leaving the facility, the Union’s bargaining team headed
towards their respective vehicles. Vazquez recalls that on get-
ting into Ortiz’ vehicle, he turned around and saw Curet ap-
proaching the vehicle containing employees Agosto and
Sandoval. Ortiz recalls that once in the vehicle, Vazquez told
him to turn around and that, when he looked back, he saw Curet
talking to Sandoval and Agosto.
Consistent with Ortiz’ and Vazquez’ observations, Agosto
testified that Curet approached him and Sandoval and asked
them to remain because Gonzalez wished to speak with them.
Gonzalez showed up moments later and discussed various top-
ics with them. According to Agosto, Gonzalez stated that he
“was no longer going to negotiate” with either A. Figueroa or
his son, Figueroa, that “there were more unions in Puerto
Rico,” and that they should find themselves another union with
which he would be willing to negotiate. Agosto claims he told
Gonzalez that the latter should remember that what was being
negotiated at the bargaining table was for the benefit of the
employees, not Figueroa. At one point, Gonzalez, according to
Agosto, stated that his only regret about this entire matter was
that it was the employees who were being prejudiced by the
situation because a salary increase had already been included in
his budget. Agosto then suggested that if what Gonzalez was
saying was true, he should go ahead and give the raise. Gon-
zalez replied that he could not do so because if he did so, A.
Figueroa would file a charge with the Board alleging that the
Company had failed to negotiate the raise with the Union.
Agosto replied that if Gonzalez’ truly wanted to give employ-
ees the raise, they should then proceed to negotiate over it. (IV:
542–543.) The conversation, Agosto recalls, pretty much
ended at that point.
Gonzalez testified that after A. Figueroa and his team walked
out of the June 13 meeting, he and his team turned off the lights
and left the building. He claims that on exiting, he found
PAN AMERICAN GRAIN CO. 229
Agosto and the other union representatives mulling around and
talking among themselves. According to Gonzalez, he and
Sandoval engaged in some brief chit-chat about the anxiety
Sandoval was purportedly experiencing. Following that brief
discussion, Gonzalez claims he repeated to Agosto and the
other employees gathered that they should work on obtaining a
good contract. He explained to the employees that he would
soon be leaving on vacation and would be away for 6 months,
and that, in the meantime, employees should “proofread” the
contract so that when he returned from vacation, it would be
ready for him. Gonzalez purportedly further told the employ-
ees that Curet and Juarbe would be made available to them
during company hours to assist in the proofreading. Gonzalez
explained to the employees that unlike A. Figueroa, who was
reviewing every letter in the contract and going over it word for
word, he did not have time to pore over the contract paragraph
by paragraph, which is why he wanted the employees to proof-
read it so that it could be ready for him on his return from vaca-
tion. (VIII: 538–539.) Gonzalez was not questioned about, and
consequently neither confirmed nor denied, the statements at-
tributed to him by Agosto to the effect that, following the June
13 meeting, Gonzalez told him and Sandoval he would no
longer negotiate with Figueroa or A. Figueroa, that employees
should find themselves another union to represent them, and
that he would not give employees a salary increase because the
Union might accuse him of failing to negotiate over the raise. I
credit Agosto’s testimony in this regard.
c. June 14, 2001 Gonzalez meeting with employees
Vazquez testified that on June 14 the parties did not meet to
negotiate as they had been doing. Instead, he recalled that
around midday, his shift supervisor, Humberto Santana, told
him that Gonzalez wanted to meet with him and other em-
ployee members of the Union’s bargaining team which in-
cluded Carlos Fernandez, Ruben Baez, and Edwin Roman. At
this meeting with Gonzalez, which Vazquez recalls was also
attended by Curet, Gonzalez asked what was happening with
the collective-bargaining agreement. When Vazquez answered
that they were not having any problems, Gonzalez asked why
the employees were not speaking up at the negotiations.
Vazquez replied that employees would only create conflict by
speaking out, and that the reason for having caucuses during
negotiations was to allow employees to express themselves. He
added that employees, in any event, had authorized A. Figueroa
to speak for them at the bargaining table. Gonzalez, according
to Vazquez, replied that this was why he wanted the collective-
bargaining agreement to be clear, because he did not want Fi-
gueroa at the facility and that the latter would not be setting
foot in the Company again. (III: 369.) Vazquez claims that
Gonzalez, as he had done a few days earlier on June 11, asked
if he and the other employees wanted to hear the recording
containing Figueroa’s alleged threat, explaining that he wanted
employees to see the type of representative they had selected.
Curet, on Gonzalez’ instructions, retrieved a recorder and the
tape recording was played for the employees. Vazquez paid
little attention to what was on the recording. Finally, Vazquez
claims that Gonzalez repeated his suggestion, first made during
their June 11 conversation in Ortiz’ car, that the employee
members of the Union’s bargaining team should negotiate the
agreement by themselves, and then submit it to the union repre-
sentative and Gonzalez for final approval. (III: 377.)
Roman also testified about the June 14, 2001 meeting and
largely corroborated Vazquez’ account. Thus, he recalls Curet
being present, Gonzalez suggesting that the two bargaining
committees meet and negotiate a contract without him and A.
Figueroa being present, and Gonzalez playing the recording
purportedly containing a threat by Figueroa. Roman further
recalls Vazquez telling Gonzalez, in response to the latter’s
suggestion about the committees negotiating among them-
selves, that employees had already authorized A. Figueroa to
bargain on their behalf. According to Roman, Gonzalez replied
that while he, Gonzalez, could not be changed as a negotiator as
he was the owner of the Company, the employees’ choice of
bargaining representative could be changed because the Union
had many representatives. Finally, Roman claims that, at one
point, Gonzalez made mention of raises that he had for employ-
ees, and that when Vazquez suggested he distribute the raises,
Gonzalez replied that “when the collective bargaining agree-
ment is negotiated, he will give us what we have asked for.”
(IV: 524–528.)
Gonzalez was questioned about the June 14, 2001 meeting
by Respondent’s counsel. However, his testimony as to what
occurred or what was said was ambiguous and confusing.
Thus, when asked by his counsel whom he had met with on
June 14, 2001, Gonzalez stated that he first wanted to lay some
foundation for his answer and then proceeded to ramble on
about how he initially did not want to take part in the negotia-
tions, and how he eventually relented and agreed to get in-
volved after being asked to do so by employees Fernandez and
Vazquez. He eventually admitted asking Fernandez, Vazquez,
Baez, and “some other employees” to meet with him on June
14. He recalls telling employees at this meeting that he was
leaving for vacation and suggesting that they proofread the
contract in his absence so that negotiations could be completed
on his return. Gonzalez further recalled some discussion about
the need for an elevator at one of Respondent’s facilities. He
made no mention whatsoever of having played the recording
for the employees, or having asked employees to negotiate
without their union representative. Gonzalez did not indicate if
Curet was present at this meeting. Curet, who testified on other
matters, was not questioned about the June 14, 2001 meeting.
I found Gonzalez’ rather rambling account of the June 14,
meeting not to be credible. I credit instead Vazquez’ and Ro-
man’s mutually corroborative account and find that Gonzalez,
as he did during his June 11 conversation with Vazquez, did in
fact urge the employee members of the Union’s bargaining
committee at this June 14 meeting to engage in direct negotia-
tions with the Respondent’s bargaining committee members
without their union representative and designated spokesperson,
A. Figueroa.
Discussion
The General Counsel contends, and I agree, that the Respon-
dent violated Section 8(a)(5) and (1) when Gonzalez on June
11, and again on June 14, 2001, urged employee members of
the Union’s negotiating committee to bargain directly with their
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD230
counterparts on the Respondent’s bargaining team without A.
Figueroa.
The Act prohibits an employer from dealing directly with
employees at a time when they are represented by an exclusive
collective-bargaining representative. See, e.g., Medo Photo
Supply Corp. v. NLRB, 321 U.S. 678, 684 (1944). Thus, an
employer must deal in bargaining negotiations with the statu-
tory representative and cannot bargain directly or indirectly
with the employees. See Borden, Inc., 308 NLRB 113, 128
(1992), citing NLRB v. Insurance Workers, 361 U.S. 477, 484–
485 (1960); also Ad-Art, Inc., 290 NLRB 590, 606 (1988).
“The employer’s statutory obligation is to deal with the em-
ployees through the union, and not with the union through the
employees.” Borden, supra, quoting from General Electric Co.,
150 NLRB 192, 195 (1964).
The record here makes clear, and the Respondent does not
contend otherwise, that during the June 2001 negotiations, A.
Figueroa was the employees’ designated spokesperson and
representative. Thus, it was A. Figueroa who had the authority
to bargain and speak on the employees’ behalf, and with whom
the Respondent was obligated to deal during the negotiations.
By urging the employee members of the Union’s bargaining
committee to negotiate directly with the Respondent’s bargain-
ing team without their principal spokesperson, A. Figueroa
being present, the Respondent, in effect, sought to avoid its
bargaining obligations by bypassing the Union and dealing
directly with employees. That this was its true intent was made
clear by Gonzalez’ June 13 comments to Agosto that he “was
no longer going to negotiate” with either A. Figueroa or his
son, Figueroa, that “there were more unions in Puerto Rico,”
and that they should find themselves another union with which
he would be willing to negotiate. The Respondent’s attempt to
bypass the Union and to bargain directly with employees
amounted to a breach of its duty to bargain in good faith with
the Union, and, as stated, violated Section 8(a)(5) and (1) of the
Act. E. I. du Pont & Co., 311 NLRB 893, 918 (1993); Weinreb
Management, 292 NLRB 428, 432 (1989).
I also find, as alleged in the complaint and as claimed by the
General Counsel, that the Respondent unlawfully sought to
undermine the Union in the eyes of its employees when Gon-
zalez, on June 11, 2001, told Ortiz and Vazquez that the Union
was bankrupt. Gonzalez’ remark, as noted, followed on the
heels of his first unlawful attempt to persuade Vazquez and
Ortiz to bargain directly with the Respondent without their
union representative and chief spokesperson, A. Figueroa. As
such, I am convinced that Gonzalez’ unsubstantiated claim
about the Union being bankrupt was meant to further under-
mine the Union in the hope that Vazquez, Ortiz, and other em-
ployees would become disaffected with, and abandon, the Un-
ion. Accordingly, I find that Gonzalez’ “bankrupt” remark was
coercive and a violation of Section 8(a)(1) of the Act.
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.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act and, at all times material, has been the
exclusive collective-bargaining representative of the Respon-
dent’s employees in the following bargaining units identified as
units A, B, and C:
UNIT A
All production and maintenance employees of the Respondent
at its Amelia Industrial Park “Arroz Rico” plant and the
Corujo plant, in Guaynabo and Bayamon, Puerto Rico, re-
spectively, including but not limited to drivers, helpers, me-
chanics and electricians; but excluding all office clerical em-
ployees, guards, and supervisors as defined by the Act.
UNIT B
All production and maintenance employees of the Respondent
at its rice plant located at Bo. Sabana, Guaynabo, including,
but not limited to, drivers, helpers, mechanics, and electri-
cians, but excluding all office clerical employees, guards, and
supervisors as defined by the Act.
UNIT C
All chauffeurs and chauffeurs helpers employed by the Re-
spondent at its facilities in Amelia Industrial Park, and Bo.
Sabana rice plant in Guaynabo, and Corujo in Bayamon, but
excluding all other employees, guards, and supervisors as de-
fined by the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
urging employees to abandon the Union and implicitly promis-
ing them some unspecified benefits if they did so, by telling
employees that the Union was bankrupt, and telling them that
complaining to the Board would be an exercise in futility.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally, and without first notifying or bargaining
with the Union, establishing a ban on employee use of cell
phones within its facilities; unilaterally instituting a training
program for employees on its CSV-40 machines; unilaterally
demoting or reclassifying employees from the A-skilled to the
unskilled classification; unilaterally discontinuing its annual
$500 bonus program for employees; unilaterally assigning bar-
gaining unit work to supervisors and/or nonunit employees;
failing and refusing to comply with the Union’s August 16,
2000 request for relevant information needed for the perform-
ance of its representative duties; failing and refusing to comply
with its contractual obligation to deduct union dues from unit
employees; and by refusing to bargain with the Union’s desig-
nated representative, Figueroa, and denying him access to its
facilities.
5. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
6. Except as found herein, the Respondent has not engaged
in any other unfair labor practices.
REMEDY
The Respondent, having engaged in unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act, shall be ordered
to cease and desist from engaging in such practices and to take
certain steps to remedy the violations found.
To remedy the unlawful unilateral changes made in the unit
employees’ terms and conditions of employment, the Respon-
PAN AMERICAN GRAIN CO. 231
dent shall be required to rescind the March 1, 2000 program it
unilaterally instituted to train unit employees on the CSV-40
machine, its March 13, 2000 ban on employee use of cell
phones in its facilities, and its March 2000, its demotion or
reclassification of employees David Pino, Javier Garcia,
Rodolfo Rodriguez, and Luis Perez from the A-skilled to the
unskilled classification, and its discontinuation of the $500
yearly bonuses for employees, and to bargain, on request, over
these or any other changes it might wish to make in the unit
employees’ terms and conditions of employment. The Respon-
dent shall also be required to meet and bargain with Jose A.
Figueroa as the Union’s designated representative for purposes
of negotiations or contract administration, or with any other
representative so designated by the Union, and allow him ac-
cess to its premises for such purposes.
The Respondent shall, within 14 days from the date of this
Order, be required to reinstate Javier Garcia and Luis Perez46 to
their former A-skilled classifications, without prejudice to their
seniority or other rights and privileges previously enjoyed. It
shall also be ordered to make them whole for any losses in
wages or other benefits they may have sustained due to their
unlawful demotion in the manner prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), with interest as provided in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent shall be required to accept and comply with
the dues-checkoff assignments for employees Alberto Franco
Mateo, Marcelo Franco Villegas, Daniel Castro, and Jorge
Ortiz, and to provide the Union with the information requested
in its August 16, 2000 request for information. Finally, the
Respondent shall be required to post, in English and Spanish,
an appropriate notice to employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended47
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
(a) Unilaterally instituting a ban on employee use of cell
phones in its facilities; instituting a “new equipment” training
program; assigning bargaining unit work to nonunit employees
and supervisors; demoting, downgrading, or reassigning unit
employees from one job classification to a lower classification,
discontinuing its $500 annual bonus, or making any other uni-
lateral changes in its unionized employees’ terms and condi-
tions of employment without first notifying and bargaining with
Congreso de Uniones Industriales de Puerto Rico, which is the

46 Employee Rodolfo Rodriguez, as noted, was terminated for rea-
sons not alleged in the complaint to be unlawful. For reasons unknown,
the General Counsel withdrew David Pino’s from this particular allega-
tion. Consequently, the reinstatement remedy is not applicable to them.
47 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.
exclusive bargaining representative of its employees in the
following appropriate bargaining units:
UNIT A
All production and maintenance employees of the Respondent
at its Amelia Industrial Park “Arroz Rico” plant and the
Corujo plant, in Guaynabo and Bayamon, Puerto Rico, re-
spectively, including but not limited to drivers, helpers, me-
chanics and electricians; but excluding all office clerical em-
ployees, guards, and supervisors as defined by the Act.
UNIT B
All production and maintenance employees of the Respondent
at its rice plant located at Bo. Sabana, Guaynabo, including,
but not limited to, drivers, helpers, mechanics, and electri-
cians, but excluding all office clerical employees, guards, and
supervisors as defined by the Act.
UNIT C
All chauffeurs and chauffeurs helpers employed by the Re-
spondent at its facilities in Amelia Industrial Park, and Bo.
Sabana rice plant in Guaynabo, and Corujo in Bayamon, but
excluding all other employees, guards, and supervisors as de-
fined by the Act.
(b) Refusing to meet or bargain with Jose A. Figueroa as the
Union’s designated representative in negotiations and on other
contractually related matters, refusing to allow him access to its
facilities as required by the parties’ collective-bargaining
agreements; refusing to provide the Union with requested in-
formation which it needs to comply with its statutory obliga-
tions as the unit employees’ exclusive bargaining representa-
tive; and refusing to deduct union dues from unit employees
Alberto Franco Mateo, Marcelo Franco Villegas, Daniel Castro,
and Jorge Ortiz.
(c) Telling employees they should abandon the Union and
promising to provide them with unspecified benefits if they did
so; telling them that the Union is bankrupt; and telling employ-
ees that the filing of charges with the Board would be a futile
gesture.
(d) 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) Rescind the unilateral changes made in the unit employ-
ees’ terms and conditions of employment described above in
paragraph 1(a), and bargain, on request, with the Union over
these or any other changes we may wish to make in the unit
employees’ terms and conditions of employment.
(b) Recognize and bargain with Jose A. Figueroa as the Un-
ion’s designated representative for purposes of collective bar-
gaining and contract administration, or with any other represen-
tative so designated by the Union, and allow Jose A. Figueroa
access to its facilities for such purposes as required under the
parties’ agreement.
(c) Provide the Union with the information sought in its Au-
gust 16, 2000 information request.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD232
(d) Accept the dues deduction applications from, and begin
deducting and remitting to the Union dues on behalf of, unit
employees Alberto Franco Mateo, Marcelo Franco Villegas,
Daniel Castro, and Jorge Ortiz.
(e) Within 14 days from the date of this Order, reassign em-
ployees Javier Garcia and Luis Perez to their former A-skilled
classification, without prejudice to their seniority or other rights
and privileges previously enjoyed.
(f) Make Javier Garcia and Luis Perez whole for any loss of
earnings or benefits they may have suffered due to their unlaw-
ful demotion, with interest, in the manner described in the rem-
edy portion of this decision.
(g) Within 14 days after service by the Region, post at its fa-
cilities Guaynabo, Puertp Rico, in English and Spanish lan-
guage, copies of the attached notice marked “Appendix.”48
Copies of the notice, on forms provided by the Regional Direc-

48 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.”
tor for Region 24, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, 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 employees employed by the Respondent at any time
since March 1, 2000.
(h) 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.