Stern Produce Company, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 2019

368 NLRB No. 31 (N.L.R.B. 2019)

368 NLRB No. 31
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Stern Produce Company, Inc. and United Food and
Commercial Workers Union, Local 99. Cases 28–
CA–163215, 28–CA–166351, and 28–CA–168680
July 31, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On December 14, 2017, Administrative Law Judge Lisa
D. Thompson issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent filed
a reply brief. In addition, the General Counsel filed cross-
exceptions and a supporting brief, the Respondent filed an
answering brief, and the General Counsel filed a reply
brief.1
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,2 and conclusions only to the
extent consistent with this Decision and Order.3
The judge found, and we agree, that the Respondent
committed multiple and serious violations of the National
Labor Relations Act. We disagree, however, with her rec-
ommendation that the Board issue a remedial bargaining
order under NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). Although the extent and severity of the Respond-
ent’s unfair labor practices warrant consideration of this
remedy, more than 3-1/2 years have passed since they
were committed. Moreover, the Respondent’s “hallmark”
violations were witnessed by only three employees, and
there is no evidence that they were disseminated beyond
these three. These facts and circumstances raise substan-
tial doubt as to the enforceability of a Gissel bargaining
order. Consistent with our recent decision in Sysco Grand
Rapids, LLC, 367 NLRB No. 111 (2019), we believe the
wiser course is to order certain extraordinary remedies, in-
cluding special union-access remedies, to dissipate the ef-
fects of the Respondent’s violations, following which, if
the Union wishes to proceed, the employees may exercise

1 The Respondent also filed a motion to reopen the record, to which
the General Counsel filed a timely opposition, and the Respondent filed
a reply. The motion is addressed at fn. 13, infra.
2 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
their right of free choice in a Board-conducted, secret bal-
lot election.
I. OVERVIEW
This consolidated proceeding arose from an organizing
drive by United Food and Commercial Workers Union,
Local 99 (the Union), conducted among drivers and ware-
house employees at the Respondent’s wholesale distribu-
tion and delivery facility in Phoenix, Arizona. Having ob-
tained signed authorization cards from a majority of the
Respondent’s drivers and warehouse employees, the Un-
ion filed a petition for a representation election on October
14, 2015.4 Pursuant to a Stipulated Election Agreement,
an election was scheduled for November 5. From October
22 to November 3, the Respondent’s labor consultants, Ri-
cardo Pasalagua and Miko Penn, met with employees in
the petitioned-for unit to discuss the upcoming election.
The Respondent’s owner, William Stern, attended and
participated in some of these meetings.
On November 3, the Union filed an unfair labor practice
charge in Case 28–CA–163215, alleging that the Re-
spondent had committed numerous violations of the Act
during these meetings. Later that day, the Regional Direc-
tor postponed the election pending the outcome of an in-
vestigation into the Union’s unfair labor practice charge.
On November 4, Pasalagua read the unfair labor prac-
tice charge to a group of employees in the petitioned-for
unit and told them that the Union’s filing of the charge
caused the election to be cancelled. Through mid-January
2016, Pasalagua met with employees to discuss the charge
and the Region’s subsequent request for certain materials
from the Respondent. Thereafter, the Union filed a second
charge in Case 28–CA–166351, amended its second
charge, and filed a third charge in Case 28–CA–168680,
alleging that the Respondent had committed additional vi-
olations of the Act. On July 19, 2016, the Regional Direc-
tor issued a consolidated complaint, alleging that the Re-
spondent had committed numerous unfair labor practices.
The judge dismissed allegations that the Respondent vi-
olated the Act by interrogating employee Eduardo
Mancera, creating the impression of surveillance by tell-
ing employees Jose Ruiz and Roberto Rosas that a major-
ity of employees no longer supported the Union and that
it was supported by only a small group of employees,
threatening employees with wage loss, telling employees
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 We have amended the judge’s conclusions of law consistent with
our findings herein. We shall modify the judge’s recommended Order
to conform to our findings and to the Board’s standard remedial lan-
guage, and we shall substitute a new notice to conform to the Order as
modified.
4 All dates hereafter are in 2015 unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
to not pay attention to the Union and that the Union would
not be able to do anything for them because the Respond-
ent was the one with the last word, and discouraging em-
ployees from participating in the Board’s investigation by
telling them that the Respondent could not help them with
their work orders because it had to continue answering
Board charges. We adopt the judge’s dismissal of these
allegations.5
The judge found, however, that the Respondent com-
mitted multiple violations of Section 8(a)(1) before the
scheduled election date. These violations included inter-
rogating employees about their union sympathies; making
various threats, including “hallmark” threats of job loss,
layoffs, and facility closure; creating the impression that
employees’ union activities were under surveillance;
promising to improve employees’ working conditions,
salaries, insurance, and positions if employees voted
against union representation; and promising that owner,
William Stern, would fix a workers’ compensation prob-
lem.6 The judge additionally found that after the election
was postponed, the Respondent interfered with the
Board’s investigation of the unfair labor practice charges,
also in violation of Section 8(a)(1). We adopt these find-
ings for the reasons stated by the judge.7 Further, in the
absence of exceptions, we adopt the judge’s findings that
the Respondent violated Section 8(a)(1) by impliedly

5 In dismissing the allegation that the Respondent discouraged partic-
ipation in the Board’s investigation by telling employees that it could not
help them with work orders while having to answer Board charges, the
judge observed that the General Counsel “failed to establish how these
statements discouraged or hindered [employee Eduardo] Mancera or oth-
ers from participating in the Board’s investigation of the Union’s ULP
charges.” We do not rely on this observation, which appears to apply a
subjective legal standard to the Respondent’s statements. The Board ap-
plies an objective standard in these circumstances. See, e.g., Manage-
ment Consulting, Inc. (Mancon), 349 NLRB 249, 250 fn. 6 (2007). In
any event, we agree with the judge that this allegation lacks record sup-
port and should therefore be dismissed.
Member McFerran joins her colleagues in dismissing the allegation
that the Respondent violated the Act by interrogating employee Mancera.
In doing so, though, she notes that there were two allegedly unlawful
encounters. There were no exceptions filed to the dismissal based on the
first meeting, and the second was not an interrogation for the reasons
given by the judge.
6 Only one unlawful statement—an implied threat of loss of bene-
fits—was made to a large group of employees (36 out of 65 employees
in the petitioned-for unit); most of the remaining statements were made
during small-group meetings, and the record does not establish how
many employees heard them; and only three employees heard the “hall-
mark” threats and there is no evidence that those threats were dissemi-
nated beyond those three.
7 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by interrogating its employees about their union sympathies, we
rely on the judge’s finding that the questioning was coercive under all
the circumstances. See Rossmore House, 269 NLRB 1176 (1984), enfd.
sub nom. Hotel Employees & Restaurant Employees Local 11 v. NLRB,
760 F.2d 1006 (9th Cir. 1985). We do not pass on the judge’s additional
promising employee Eduardo Mancera and others that the
Respondent would provide drivers with jackets and other
unspecified benefits if employees voted against the Union,
and by promising to promote an employee if the employee
stopped engaging in union activity.8 As explained below,
however, we reverse the judge’s findings that the Re-
spondent violated the Act by its remarks about strikes and
lockouts and about changes in employees’ ability to deal
directly with the Respondent’s owner if employees se-
lected the Union to represent them.
Finally, the judge’s recommended Order included a no-
tice-reading remedy and a Gissel bargaining order, and the
judge declined to grant the General Counsel’s request for
special union-access remedies. We do not adopt the
judge’s bargaining order remedy. As explained below,
however, we agree that a notice-reading remedy is war-
ranted, and we shall additionally order certain special un-
ion-access remedies. We will also substitute a broad
cease-and-desist order for the judge’s recommended nar-
row order.
II. ALLEGED THREAT THAT A STRIKE OR LOCKOUT
WAS INEVITABLE
The judge found, among other things, that the Respond-
ent violated Section 8(a)(1) by threatening its employees
that a strike or lockout was inevitable if they selected the
Union as their collective-bargaining representative and the
finding that asking whether employees would vote for the Union was
inherently coercive.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by threatening that it would go bankrupt if employees unionized,
we note that the credited testimony supporting this finding was furnished
by Jose Pacheco, not Juan Juarez as stated by the judge.
The Respondent excepted to the judge’s conclusions that the Re-
spondent violated Sec. 8(a)(1) by creating the impression of surveillance
when Ricardo Pasalagua accused Eduardo Mancera of riling up employ-
ees and then declined to respond to Mancera’s request for the source of
Pasalagua’s information, and when Pasalagua suggested that he knew
employees were participating in the Board’s investigation, but it pre-
sented no argument in its brief in support of either exception. Accord-
ingly, pursuant to Sec. 102.46(a)(1)(ii) of the Board’s Rules and Regula-
tions, these exceptions may be disregarded, and we find it appropriate to
do so here. See, e.g., Neises Construction Corp., 365 NLRB No. 129,
slip op. at 1 fn. 5 (2017).
8 We find it unnecessary to pass on the judge’s dismissal of the alle-
gation that, by the same statement, the Respondent also threatened loss
of a promotional opportunity, as an additional violation finding would
not materially affect the remedy.
Member McFerran joins her colleagues in adopting the judge’s find-
ing of this violation but would also reverse the judge’s dismissal of the
allegation that the statement further threatened the loss of a promotional
opportunity. The judge found that Pasalagua unlawfully promised em-
ployee Mancera that the Respondent was considering him for a supervi-
sor position and that he should “calm down” from “riling up” employees.
The promise of benefit and threat of reprisals are two outcomes from the
same statement: if Mancera “calmed down” from “riling up” employees,
he would be given a promotion to a supervisory position. But if he did
not, he would be denied such a position.
STERN PRODUCE CO. 3
Union rejected the Respondent’s bargaining demands.
We disagree with the judge’s finding.
The record shows that during one of the meetings with
employees to discuss the upcoming election, labor con-
sultant Miko Penn made the following remarks:
You also have the option to strike. If a final offer is re-
jected, a strike vote will be taken. Most of you don’t
want to go on strike. But if you do, you have a right to
vote for that. Or, the Employer, Billy [Stern], as a pres-
sure tactic to slap some sense into the Union, and they
can lock you out. That is Billy’s leverage. He says,
“Look these negotiations are not going anywhere. We
are not coming to an agreement.” You are not going on
strike or he finds out that you may be going on strike
next week. And in order to protect his own business, he
can lock the door, on all of you. That is absolutely legal.
That is his pressure tactic that he has to make sure the
Union agrees to his terms.
The judge found that these remarks were unlawful because
they were “devoid of objective facts based upon specific past
strike experiences” and “conveyed to employees that strikes
are inevitable[.]” Contrary to the judge and our dissenting
colleague, we find these remarks were not unlawful.
Absent accompanying threats or promises of benefit, an
employer does not violate the Act when it shares with em-
ployees a correct statement of the law. See, e.g., Eagle
Comtronics, Inc., 263 NLRB 515, 515–516 (1982) (find-
ing that employer did not violate the Act by “truthfully in-
forming employees that they are subject to permanent re-
placement in the event of an economic strike”); Drives,
Inc., 172 NLRB 969, 970 (1968) (finding that employer’s
statements about the union’s ability to call a strike and the
risk of a strike if the union won the election did not violate
the Act where the employer did not characterize a strike
as inevitable), enfd. on other grounds 440 F.2d 354 (7th
Cir. 1971), cert. denied 404 U.S. 912 (1971). Here, Penn
accurately stated that employees had the right to strike if

9 We do not dispute the dissent’s contention that it is possible, de-
pending on the facts of a specific case, to convey that a strike or lockout
is inevitable without using the words “will” or “would.” In the circum-
stances presented here, however, Penn’s remarks did not convey inevita-
bility, as explained above. And because they did not do so, the Respond-
ent was under no obligation to mitigate Penn’s remarks by providing as-
surances that strikes are not inevitable, as the dissent mistakenly sug-
gests.
10 Contrary to the dissent’s contention, neither Harrison Steel Cast-
ings, 293 NLRB 1158 (1989), nor Neo-Life Co. of America, 273 NLRB
72 (1984), compel a finding of a violation here. In Harrison Steel Cast-
ings, the employer invoked the “ever-present possibility of a strike” and
subsequent job loss resulting from a decision to unionize. 293 NLRB at
1159. In other words, the employer in that case drew a straight line from
unionization to the looming prospect of a strike as an “ever-present pos-
sibility” to job loss. It did not, as here, make a strike contingent on
they rejected the Respondent’s final offer in contract ne-
gotiations. Penn also accurately stated that the Respond-
ent can “lock the door” on them (i.e., lock out its employ-
ees) in anticipation of a strike or in support of its bargain-
ing position. See American Ship Building Co. v. NLRB,
380 U.S. 300, 310 (1965) (holding that employer’s use of
a lockout in support of its legitimate bargaining position
is not “in any way inconsistent with the right to bargain
collectively or with the right to strike”); Highland Super-
stores, Inc., 314 NLRB 146, 146 (1994) (employer can
lawfully lock out employees “in response to economic ac-
tion by the union, provided that the employer’s action is
in support of a lawful bargaining position”). Penn’s accu-
rate statements of the law included no language suggesting
a predetermination to force a strike or resort to a lockout
and, therefore, were lawful.
Focusing narrowly on isolated statements within Penn’s
remarks, our dissenting colleague contends that Penn
“[conveyed to] employees with certainty that they would
be locked out (for reasons unrelated to economic necessi-
ties) if they chose union representation.” This contention
is not borne out by a fair reading of the entirety of what
Penn said. Preliminarily, Penn explained that employees
would have “the option to strike” if they were not satisfied
with the Respondent’s contract offer and that a decision to
strike would depend on their vote. Penn then stated that
Stern could “lock the door” in certain circumstances, not
that he would do so. Thus, Penn’s remarks interposed
three contingencies between a choice to unionize and a
lockout: (i) the possibility (not the inevitability) that em-
ployees might be dissatisfied with the Respondent’s con-
tract offer; (ii) the possibility (not the inevitability) that
employees might vote to strike if they were dissatisfied
with the offer; and (iii) the possibility (not the inevitabil-
ity) that Stern might lock out employees as a pressure tac-
tic in certain circumstances.9 In these circumstances, we
find that Penn did not convey that a strike or lockout
would inevitably result from unionization.10
multiple intervening events between the decision to unionize and a strike
or lockout. In Neo-Life Co. of America, the employer’s executive vice
president told employees that if they voted for the union, the employer
“would not want to bargain,” that it “would not have to sign a contract,”
and that if there were no contract a strike would follow and “scabs”
would come in, and the Board found that this constituted a threat to force
a strike by bargaining in bad faith. 273 NLRB at 72. No such facts are
presented here. Similarly unavailing are the dissent’s citations to other
cases involving statements clearly conveying that unionization will in-
evitably lead to a strike, lockout, or other adverse consequences. See
Systems West LLC, 342 NLRB 851, 851–853 (2004) (employer predicted
that unionization would limit employees’ ability to be hired for jobs in
their work area); Schaumburg Hyundai, Inc., 318 NLRB 449, 450 (1995)
(employer predicted, without objective facts, that unionization would re-
sult in lower wages and harsher working conditions); Walker Color
Graphics, 227 NLRB 455, 466 (1976) (employer threatened to cease
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Accordingly, we reverse the judge’s finding that by
Penn’s remarks, the Respondent violated Section 8(a)(1).
III. ALLEGED THREAT OF LOSS OF BENEFIT
The judge found that the Respondent, by its consultant
Ricardo Pasalagua, violated Section 8(a)(1) by threatening
to withhold a benefit from employees if they selected the
Union as their collective-bargaining representative. The
judge based this finding on credited testimony that Pasa-
lagua told Eduardo Mancera and other employees that if
they chose the Union to represent them, they would no
longer have direct dealings with the Respondent’s owner
and would have to wait until the Union negotiated with
him. The judge found that although Pasalagua’s remark
was accurate, it was nevertheless unlawful because it rea-
sonably conveyed an implied threat of loss of communi-
cation and followed other statements that violated Section
8(a)(1). Contrary to the judge, we find Pasalagua’s remark
was lawful.
In determining whether statements about the impact of
unionization violate Section 8(a)(1), the Board considers
the totality of the relevant circumstances. See Gissel, 395
U.S. at 589; North Star Steel Co., 347 NLRB 1364, 1366
(2006). However, the Board will find “no threat, either
explicit or implicit, in a statement that explains to employ-
ees that, when they select a union to represent them, the
relationship that existed between the employees and the
employer will not be as before.” Office Depot, 330 NLRB
640, 642 (2000) (citing Tri-Cast, Inc., 274 NLRB 377
(1985)).
Here, as the judge observed, Pasalagua accurately de-
scribed the precise effect of unionization, conveying that
employees would deal with the Respondent through the
Union rather than directly with the Respondent’s owner.
The judge erred, however, in finding that this accurate de-
scription was rendered unlawful by the fact that it fol-
lowed unlawful statements. The Board is generally “re-
luctant to convert otherwise lawful statements into unlaw-
ful threats simply because of the existence of other viola-
tions,” Children’s Center for Behavioral Development,
347 NLRB 35, 36 (2006), and we decline to do so here.
Although the Board has, on occasion, found “ambiguous
comments” unlawful “because of a pervasively coercive
atmosphere,” id. at 36-37, Pasalagua’s statement was not
ambiguous. His unambiguous message was that choosing
to have a collective-bargaining representative would im-
pact the manner in which employees would deal with the

operations if employees unionized); Essex Wire, 164 NLRB 319, 319–
320 (1967) (in urging employees to ratify contract, employer stated that
possible consequence of not ratifying included closing the plant and per-
manent loss of employees’ jobs).
11 In agreeing to reverse the judge’s 8(a)(1) finding and to dismiss the
allegation that Pasalagua unlawfully told Mancera that the employees
Respondent’s owner, and such a statement is clearly law-
ful under longstanding precedent. Accordingly, we re-
verse the judge’s 8(a)(1) finding and dismiss this com-
plaint allegation.11
IV. THE JUDGE’S RECOMMENDED BARGAINING ORDER
Having found that the Respondent engaged in numerous
and pervasive unfair labor practices, including hallmark
violations involving threats of job loss, layoffs, and facil-
ity closure, and that the unfair labor practices continued
over several months, the judge further found that the vio-
lations tainted the environment to such an extent that a
Gissel bargaining order was warranted.
Given the extent and severity of the Respondent’s unfair
labor practices, we would normally consider issuing a bar-
gaining order. However, over 3-1/2 years have elapsed
between the Respondent’s unfair labor practices and the
issuance of our decision today. This delay creates a sub-
stantial risk that a Gissel bargaining order would prove un-
enforceable. See, e.g., Flamingo Hilton-Laughlin v.
NLRB, 148 F.3d 1166, 1171–1172 (D.C. Cir. 1998) (4-
year delay between unfair labor practices and Board deci-
sion in part obviated need for bargaining order). In similar
circumstances but where (unlike here) an election had
been held, the Board has found that employees’ rights
would be better served by proceeding directly to a second
election rather than engendering further litigation and de-
lay over the propriety of a bargaining order remedy. See
Sysco Grand Rapids, 367 NLRB No. 111, slip op. at 2;
Smithfield Foods, Inc., 347 NLRB 1225, 1232–1233
(2006); Audubon Regional Medical Center, 331 NLRB
374, 377–378 (2000); Comcast Cablevision of Philadel-
phia, 328 NLRB 487, 487 (1999); Cooper Industries, 328
NLRB 145, 146 (1999), review denied sub nom. Steel-
workers v. NLRB, 8 Fed.Appx. 610 (9th Cir. 2001). The
same concerns about doubtful enforceability and litiga-
tion-related delay are present here. In addition, and con-
trary to our dissenting colleague, a reviewing court might
find that the absence of evidence that the hallmark viola-
tions were disseminated beyond the few employees who
were subjected to them also weighs against enforcement
of a bargaining order. See Stevens Creek Chrysler Jeep
Dodge, 357 NLRB 633, 637 (2011) (extent of dissemina-
tion, among other factors, considered in determining
whether Gissel bargaining order is warranted), enfd. 498
Fed.Appx. 45 (D.C. Cir. 2012); Desert Toyota, 346 NLRB
118, 121–122 (2005) (no Gissel bargaining order where
would no longer have direct dealings with the Respondent’s owner and
would have to wait until the Union negotiated with him, Member McFer-
ran notes, without passing on whether it was correctly decided, that the
statement was not unlawful under Tri-Cast, Inc., 274 NLRB 377 (1985),
and declines at this time to revisit that decision.
STERN PRODUCE CO. 5
hallmark violations did not impact a significant portion of
the bargaining unit), petition for review denied 265
Fed.Appx. 547 (9th Cir. 2008).12
For these reasons, we decline to impose a Gissel bar-
gaining order remedy.13 We find, however, that certain
special remedies are warranted in light of the Respond-
ent’s extensive and serious unfair labor practices, both in
response to its employees’ union organizational efforts
and after the election was postponed. These additional
remedies should serve to dissipate as much as possible any
lingering effects of the Respondent’s unfair labor prac-
tices and to ensure that a fair election can be held should
the Union choose to proceed to an election.
Specifically, we adopt the judge’s notice-reading rem-
edy, requiring the Respondent to have the attached notice
read aloud, in English and Spanish, to the employees so
that they “will fully perceive that the Respondent and its
managers [and consultants] are bound by the requirements
of the Act.” Federated Logistics & Operations, 340
NLRB 255, 258 (2003), review denied 400 F.3d 920, 920,
930 (D.C. Cir. 2005). The Board has long held that the
“public reading of the notice is an ‘effective but moderate
way to let in a warming wind of information and, more
important, reassurance.”’ United States Service Indus-
tries, 319 NLRB 231, 232 (1995) (quoting J.P. Stevens &
Co. v. NLRB, 417 F.2d 533, 540 (5th Cir. 1969)), enfd. 107
F.3d 923 (D.C. Cir. 1997). Reassurance to employees that
their rights under the Act will not be violated by the Re-
spondent is particularly important because the Respond-
ent’s owner, William Stern, not only hired the labor con-
sultants who committed most of the violations but was
personally and directly involved in some of the miscon-
duct. See, e.g., North Memorial Health Care, 364 NLRB
No. 61, slip op. at 1 (2016) (notice-reading appropriate in
part due to participation of high-ranking responsible man-
agement officials in unfair labor practices), enfd. in rele-
vant part 860 F.3d 639 (8th Cir. 2017). We shall accord-
ingly order the Respondent, during the time the required
notice is posted, to convene employees in the petitioned-
for unit during working time at its Phoenix, Arizona facil-
ity, by shifts, departments, or otherwise, and have William
Stern (or, if he is no longer the owner, a high-ranking man-
agement official), in the presence of Ricardo Pasalagua,
Miko Penn, and a Board agent and an agent of the Union

12 The dissent contends that our reliance, in part, on the absence of
evidence that hallmark violations were disseminated demonstrates that
we misunderstand the Gissel standard, but she herself acknowledges that
extent of dissemination is one factor the Board considers in determining
whether a Category II Gissel bargaining order is warranted. See, e.g.,
Stevens Creek Chrysler Jeep Dodge, 357 NLRB at 637; Garvey Marine,
Inc., 328 NLRB 991, 993 (1999), enfd. 245 F.3d 819 (D.C. Cir. 2001).
13 We share our colleague’s strong commitment that our remedies
should do as much as possible to eliminate the lingering effects of the
if the Region and/or the Union so desire, read the notice
aloud to employees (with translation into Spanish), or, at
the Respondent’s option, permit a Board agent, in the pres-
ence of Stern, Pasalagua, and Penn, to read the notice to
the employees. See Bozzuto’s, Inc., 365 NLRB No. 146,
slip op. at 5 (2017).
In addition, we shall order remedies aimed at securing
the Union “an opportunity to participate in [the] restora-
tion and reassurance of employee rights by engaging in
further organizational efforts . . . in an atmosphere free of
further restraint and coercion.” United Dairy Farmers
Cooperative Assn., 242 NLRB 1026, 1029 (1979), enfd.
in relevant part 633 F.2d 1054 (3d Cir. 1980). We shall
thus require the Respondent to grant the Union and its rep-
resentatives reasonable access to the Respondent’s bulle-
tin boards and all other places where notices to employees
are customarily posted, and shall further order the Re-
spondent to supply the Union, on its request, the names
and addresses of its current unit employees. See Audubon
Regional Medical Center, 331 NLRB at 378. We shall
additionally order the Respondent to give notice of, and
equal time and facilities for the Union to respond to, any
address made by the Respondent to its employees on the
question of union representation. We impose these special
access remedies in light of the significant and pervasive
nature of the Respondent's unfair labor practices and the
need to assure a free and fair election. See Monfort of
Colorado, 298 NLRB 73, 86 (1990), enfd. in relevant part
965 F.2d 1538 (10th Cir. 1992); United Dairy Farmers
Cooperative Assn., 242 NLRB at 1029.
Finally, we find that the egregiousness of the Respond-
ent’s unfair labor practices warrants a broad order requir-
ing the Respondent to cease and desist “in any other man-
ner” from interfering with, restraining, or coercing its em-
ployees in the exercise of their Section 7 rights. See Hick-
mott Foods, 242 NLRB 1357 (1979).
AMENDED CONCLUSIONS OF LAW
Delete paragraphs 7, 9, 16, and 17 of the judge’s Con-
clusions of Law and renumber the remaining conclusions
accordingly.
Respondent’s unfair labor practices. We simply disagree that in the cir-
cumstances of this case, as in comparable cases cited above, a remedial
bargaining order is an essential or even advisable means of accomplish-
ing that shared goal as soon as possible.
Because we have decided not to issue a Gissel bargaining order, the
Respondent’s motion to reopen the record to introduce evidence of
changed circumstances since the unfair labor practices were committed
is moot.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
ORDER
The National Labor Relations Board orders that the Re-
spondent, Stern Produce Company, Inc., Phoenix, Ari-
zona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion membership, activities, sympathies, or support.
(b) Coercively interrogating employees about their par-
ticipation in the National Labor Relations Board’s inves-
tigation of unfair labor practice charges filed against the
Respondent.
(c) Creating the impression that it is engaged in surveil-
lance of its employees’ union or other protected concerted
activities.
(d) Threatening employees with the sale of the Re-
spondent’s business if employees supported the Union.
(e) Threatening employees with the closure of their
work facility if employees supported the Union.
(f) Threatening employees that the Respondent will de-
clare bankruptcy if employees supported the Union.
(g) Threatening employees with loss of benefits, re-
duced work hours, and unspecified reprisals if employees
supported the Union.
(h) Threatening that employees would be fined or jailed
if they testified during the Board’s investigation of unfair
labor practice charges filed against the Respondent.
(i) Threatening employees that selecting a union repre-
sentative would be futile.
(j) Promising employees increased wages, benefits,
equipment, and other improved terms and conditions of
employment to discourage employees from supporting the
Union.
(k) Discouraging employees from testifying in the
Board’s investigation of unfair labor practice charges filed
against the Respondent.
(l) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its Phoenix, Arizona facility copies of the attached notice
marked “Appendix”14 in both English and Spanish. Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 28, after being signed by the Respond-
ent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
employees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If 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 Re-
spondent at any time since October 29, 2015.
(b) Within 14 days after service by the Region, at its
Phoenix, Arizona facility, hold a meeting or meetings,
scheduled to ensure the widest possible attendance of unit
employees, at which the attached notice marked “Appen-
dix” is to be read to employees (with Spanish translation)
by the Respondent’s owner, William Stern (or, if he is no
longer the owner, by a high-ranking responsible manage-
ment official of the Respondent), in the presence of Ri-
cardo Pasalagua, Miko Penn, and a Board agent and an
agent of the Union if the Region and/or the Union so de-
sire, or, at the Respondent’s option, by a Board agent in
the presence of Stern (or another high-ranking manage-
ment official if Stern is no longer the owner), Pasalagua,
Penn, and an agent of the Union if the Union so desires.
(c) Immediately on request of the Union, for a period
of 2 years from the date on which the notice is posted or
until the Regional Director has issued an appropriate cer-
tification following a free and fair election, whichever
comes first, grant the Union and its representatives reason-
able access to the Respondent’s bulletin boards and all
places where notices are customarily posted in its facility
in Phoenix, Arizona.
(d) Supply the Union, on its request, with the full names
and addresses of its current unit employees, updated every
6 months, for a period of 2 years or until a certification
after a fair election.
(e) In the event that during a period of 2 years following
the date on which the aforesaid notice is posted, or until
the Regional Director has issued an appropriate certifica-
tion following a free and fair election, whichever comes
first, any supervisor or agent of the Respondent convenes
any group of employees at the Respondent’s facility in
Phoenix, Arizona, and addresses them on the question of
union representation, give the Union reasonable notice
thereof and afford two union representatives a reasonable
opportunity to be present at such meeting and, on request,
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
STERN PRODUCE CO. 7
give one of them equal time and facilities to address the
employees on the question of union representation.
(f) Within 21 days after service by the Region, file with
the Regional Director for Region 28 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. July 31, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting in part.
Although I join my colleagues in many of their findings
today, I write separately to dissent on two issues. First, I
agree with the judge’s finding that the Respondent’s state-
ment that it would lock out employees in the event they
chose union representation constitutes a threat in violation
of Section 8(a)(1) of the Act. Second, considering the Re-
spondent’s egregious and wide-reaching violations of the
Act, as well as the negative impact of those violations on
the prospect of conducting a fair election, I would issue a
Gissel1 bargaining order remedy.
I.
There is no dispute about what the Respondent’s official
told employees would certainly happen if they chose to be

1 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
2 Gissel, 395 U.S. 575, 618–619 (1969).
3 For example, in Walker Color Graphics, 227 NLRB 455, 455, 466
(1976), the Board adopted the judge’s finding that an employer made an
unlawful threat when it said it would not allow the union to come to the
plant but would resort to a lockout of the employees. The statement was
not a mere prediction of the economic consequences of unionization and
was not premised on cost consideration. Rather, it came in the context
of the employer’s other statements of the detrimental effect of unioniza-
tion, adamant opposition to the union, and the assertion that the company
would improve conditions if the employees rejected the union. See also
Essex Wire, 164 NLRB 319, 319–320 (1967) (finding a threat of lockout
violated Sec. 8(a)(1) when it was stated as the consequence were em-
ployees to fail to ratify a proposed contract). The unlawfulness of such
statements, lacking factual certainty but presented as a certain outcome,
has been established in several contexts. See, e.g., Systems West LLC,
represented by the Union. The Respondent’s labor rela-
tions consultant, Miko Penn, told approximately 36 em-
ployees at a mandatory meeting that:
You also have the option to strike. If a final offer is re-
jected, a strike vote will be taken. Most of you don’t
want to go on strike. But if you do, you have a right to
vote for that. Or, the Employer, Billy [Respondent Pres-
ident William Stern], as a pressure tactic to slap some
sense into the Union, and they can lock you out. That is
Billy’s leverage. He says, ‘look these negotiations are
not going anywhere. We are not coming to an agree-
ment.’ You are not going on strike or he finds out that
you night be going on strike next week. And in order to
protect his own business, he can lock the door, on all of
you. That is absolutely legal. That is his pressure tactic
that he has to make sure the Union agrees to his terms.
Unlike my colleagues, I would adopt the judge’s finding
that the Respondent’s statement violated Section 8(a)(1)
of the Act. In NLRB v. Gissel Packing Co., the Supreme
Court held that “[i]f there is any implication that an em-
ployer may or may not take action solely on his own initi-
ative for reasons unrelated to economic necessities and
known only to him, the statement is no longer a reasonable
prediction based on available facts, but a threat of retalia-
tion based on misrepresentation and coercion.”2
Here, the Respondent warned employees in no uncer-
tain terms that if they chose the Union and it did not agree
to the Respondent’s bargaining terms, “a strike vote will
be taken” and that the Respondent had decided that it
would lock out employees to “make sure the Union agrees
to [its] terms.” The Supreme Court’s standard for an un-
lawful threat is therefore met, as the Respondent had no
way of factually knowing how negotiations with the Un-
ion would progress, but nevertheless told employees with
certainty that they would be locked out (for reasons unre-
lated to economic necessities) if they chose union repre-
sentation.3
342 NLRB 851 (2004) (finding coercive an employer’s prediction, based
on the union’s existing master labor agreement with other employers,
that current employees would lose their jobs because they would not
qualify for the union’s hiring hall, where applicable qualifications actu-
ally would be determined in collective bargaining); Schaumburg Hyun-
dai, 318 NLRB 449, 450 (1995) (finding that an employer unlawfully
threatened employees when, during an election campaign, it told them
that it would sign an existing union contract that provided for lower wage
rates and harsher working conditions, where those terms actually were
subject to negotiation).
My colleagues’ attempt to distinguish these cases is unsuccessful.
First, the cases stand for the proposition that an employer may not con-
vey that unionization will inevitably have adverse consequences when
there is no basis for such a prediction. Second, as discussed below, to
find an employer’s statement coercive, Board precedent does not require
that the employer have used terms such as “will” and “would”; certainty
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
There is no merit to my colleagues’ claims that the Re-
spondent was simply “shar[ing] with employees a lawful,
correct statement of the law” and that the Respondent “did
not convey that a strike or lockout would inevitably result
from unionization.” To be sure, an employer may make a
prediction about the possible adverse consequences of un-
ionization—if the prediction is phrased properly to avoid
the implication that the employer will certainly impose
those consequences itself if employees choose the union.4
But, as described, that is not what happened here. Instead,
the Respondent presented its threatened lockout as the cer-
tain result if the employees chose representation by the
Union.
In support of their position that Penn did not convey in-
evitability, my colleagues rely on the fact that he stated
Stern “could” lock out employees, not that he “would” do
so. Penn’s use of “conditional” words, however, is not
enough to save his remarks. In Harrison Steel Castings
Co.,5 for example, the Board found an unlawful threat
when an employer stated: “In a union company there is the
ever-present possibility of a strike. Our customers rely
upon dependable delivery of goods and services, and the
risk of a strike may force our customers into looking for
alternative suppliers, which could lead to a loss of jobs at
our plant. When you consider your vote for or against a
union examine that choice in terms of your own personal
best interests rather than what is good for the employer.”6
Although the employer used the terms “possibility,”
“may,” and “could,” the Board explained that the strong
suggestion that unionization could make the company
noncompetitive and lead to the loss of jobs “had a ten-
dency to coerce employees when viewed against the back-
ground of the [employer’s] other unlawful conduct.”7
Similarly, in Neo Life Company of America,8 the Board
held that the employer unlawfully threatened that a strike
was inevitable when it stated that if the employees voted
for the union, “the [employer] ‘would not want to bargain’
with it, that it would have to bargain but would not have
to sign a contract, and that if there were no contract a strike
would follow, ‘scabs’ would come in, and there would be
a ‘real mess outside.’” Although the employer did not ex-
pressly state that it would refuse to bargain and that there

can be conveyed by other means, including clear implications in the con-
text of other unfair labor practices. The Respondent conveyed such in-
evitability here.
4 See DHL Express, Inc., 355 NLRB 1399, 1400 (2010) (under Gissel,
“lawful predictions of the effects of unionization must be based on ob-
jective fact and address consequences beyond an employer's control.”);
New Process Co., 290 NLRB 704 (1988) (employer statements were
lawful because the employer did not present the risk of job loss as an
inevitable consequence of unionization beyond its control).
5 293 NLB 1158 (1989).
6 Harrison Steel, 293 NLRB at 1159.
definitely would be a strike, the Board considered the em-
ployer’s statements in light of its other unlawful com-
ments and held that “in this context it can be inferred that
if the [employer] did not ‘want to’ nor ‘have to’ sign a
contract, it would not sign one and a strike would follow.”9
As in Harrison Steel and Neo Life, Penn’s statements
must be viewed against the backdrop of the Respondent’s
numerous other unfair labor practices, as found by the
Board. In that context, the Respondent’s statements rea-
sonably conveyed to employees that unionizing would re-
sult in a strike and lockout. The Respondent certainly did
not mitigate Penn’s statements by providing assurances
that strikes are not inevitable.10 On the contrary, the Re-
spondent held fast to the notion that Stern viewed a lock-
out as his way to force the Union to agree to the Respond-
ent’s bargaining positions in order to “protect his own
business.”
For those reasons, I agree with the judge that the Re-
spondent’s statement constituted an unlawful threat in vi-
olation of Section 8(a)(1).
II.
The Board is unanimous in finding that the Respondent
not only committed serious and pervasive unfair labor
practices during its antiunion campaign, but also contin-
ued to commit serious violations after the campaign was
suspended to hinder the Board’s investigation of those un-
fair labor practices. As the Gissel Court observed, when
an employer’s violations undermine employees’ statutory
rights in so many ways, “perhaps the only fair way to ef-
fectuate employee rights is to re-establish the conditions
as they existed before the employer’s unlawful cam-
paign.”11 That means requiring the employer to honor the
union’s previously established majority support by order-
ing the employer to recognize and bargain with the union.
As I recently emphasized in my dissent in Sysco Grand
Rapids, “[t]he Gissel Court wholly embraced the im-
portance of the bargaining order as an indispensable com-
ponent of national labor policy to secure employee free
choice. The Board’s responsibility to ensure employees’
true representational desires, undistorted by undue em-
ployer influences, demands that the Board continue to ex-
ercise its authority to issue a bargaining order when
7 Id.
8 2 73 NLRB 72 (1984).
9 Neo-Life Co. of America, 273 NLRB at 72.
10 See Arkansas Lighthouse for the Blind, 284 NLRB 1214, 1219
(1987) (finding an unlawful threat when the employer stated “after the
Union came into three lighthouses” in California, “there were strikes”
and “all three lighthouses closed up tight as a jug and never reopened;”
employer did not provide assurances that strikes are not inevitable or that
it would bargain in good faith if employees selected the union).
11 395 U.S. at 612 fn. 32.
STERN PRODUCE CO. 9
necessary.”12 This case easily justifies the exercise of that
authority.13
A.
In Gissel, the Supreme Court identified two categories
of misconduct that warrant imposition of a bargaining or-
der. Category I cases are “exceptional” and are “marked
by outrageous and pervasive unfair labor practices.”14
Category II cases, while less exceptional, are “marked by
less pervasive practices which nevertheless still have the
tendency to undermine majority strength and impede the
election process.”15 The Respondent’s violations clearly
rise to the level of a Category II Gissel order.16
The facts of the Respondent’s violations are largely un-
disputed and are set forth more fully in the judge’s deci-
sion. The Board unanimously agrees that the Respondent
began its unlawful conduct immediately after the Union
filed its petition, including making threats of job loss, fa-
cility closure, and loss of benefits. Such violations have
long been deemed highly coercive with an enduring im-
pact on employee free choice that is difficult to dissipate.17
The Board also unanimously agrees that the Respondent
committed additional violations impacting over half of the
employees in the petitioned-for unit, which further

12 367 NLRB No. 111, slip op. at 7 (2019).
13 Although I would issue a remedial bargaining order in this case, I
agree with my colleagues that other additional remedies are necessary to
remedy the Respondent’s unlawful conduct. Specifically, I join my col-
leagues in ordering a notice reading; granting the Union reasonable ac-
cess to the Respondent’s bulletin boards and all other places where no-
tices are customarily posted; supplying the Union, on its request, the
names and addresses of its current unit employees; and ordering the Re-
spondent to give the Union notice of, and equal time and facilities for the
Union to respond to, any address made by the Respondent to its employ-
ees on the question of union representation; and a broad cease and desist
order. I also join their imposition of the Board’s standard remedies for
the violations found.
14 Gissel, 395 U.S. at 613.
15 Id. at 614.
16 When considering a Category II bargaining order, the Board con-
siders the seriousness and extent of the unfair labor practices to deter-
mine the impact of the violations on employee free choice by looking to
a number of factors, including the number of employees affected, the size
of the unit, the extent of dissemination, the identity of those committing
the unfair labor practices, and whether the employer is likely to engage
in future violations. Stevens Creek Chrysler Jeep Dodge, 357 NLRB
633, 637 (2011), enfd. 498 Fed.Appx. 45 (D.C. Cir. 2012).
17 See Adam Wholesalers, 322 NLRB 313, 314 (1996).
18 As the Board has observed, “[u]nlawfully granted benefits have a
particularly long-lasting effect on employees and are difficult to remedy
by traditional means not only because of their significance to the em-
ployees, but also because the Board’s traditional remedies do not require
a respondent to withdraw the benefits from the employees.” Gerig’s
Dump Trucking, 320 NLRB 1017, 1017–1018 (1996), enfd. 137 F.3d
936 (7th Cir. 1998). See also NLRB v. Exchange Parts Co., 375 U.S. 405,
409 (1964) (“employees are not likely to miss the inference that the
source of benefits now conferred is also the source from which future
benefits must flow and which may dry up if the employer is not
obliged.”).
supports a bargaining order. The Respondent interrogated
employees about their union sympathies, made threats of
reprisals for supporting the Union, indicated that support-
ing the Union was futile, created the impression of surveil-
lance, and promised to improve employees’ working con-
ditions if they voted against the Union.18 Longstanding
Board precedent fully supports imposing a Gissel bargain-
ing order in those circumstances.19
It also bears emphasis that William Stern, the Respond-
ent’s president, was personally involved in some of these
unfair labor practices. Such a pattern of conduct that in-
cluded the highest levels of company authority surely left
an indelible mark on the employees. As the Board has
recognized, “When the antiunion message is so clearly
communicated by the words and deeds of the highest lev-
els of management, it is highly coercive and unlikely to be
forgotten.”20
Further, the Respondent’s continuing hostility towards
its employees’ exercise of their Section 7 rights, even after
the union campaign was halted and the Board’s investiga-
tion of the unfair labor practice allegations had begun, is
strong evidence that its unlawful conduct will persist in
the event of another organizing campaign.21 Particularly
19 See, e.g., A.P.R.A. Fuel Oil Buyer’s Group, 309 NLRB 480, 480–
481 (1992) (employer unlawfully discharged employees, promised ben-
efits, created the impression of surveillance, coerced affidavits from em-
ployees to revoke authorization cards, made statements of futility, inter-
rogated employees about union sympathies, and offered benefits to em-
ployees in exchange for revocation of unfair labor practice charges);
Mayfield Produce, 290 NLRB 1083, 1083 fn. 3 (1988) (employer unlaw-
fully told employees that others would be discharged for union activities,
created the impression of surveillance, coercive interrogated employees,
promised benefits, and made multiple threats of discharge, loss of jobs,
loss of overtime, change of operations, and plant closure); Hedstrom Co.,
235 NLRB 1193, 1194–1196 (1978) (employer unlawfully threatened to
end overtime and take away benefits, solicited grievances and promised
to remedy them, interrogated employees, and made implied threats of
plant closure); Schuckman Press, 181 NLRB 158, 158 (1970) (employer
unlawfully promised benefits, threatened employees, and interrogated
employees). As discussed above, I would further find the Respondent
unlawfully threatened to lock out employees if they selected union rep-
resentation, which only adds to the justification for a Gissel bargaining
order.
20 Consec Security, 325 NLRB 453, 455 (1998), enfd. mem. 185 F.3d
862 (3d. Cir. 1999).
21 See M. J. Metal Products, 328 NLRB 1184, 1185 (1999) (Category
II Gissel order was supported in part by the employer’s continued mis-
conduct after the election because “[a]n employer’s continuing hostility
toward employee rights in its postelection conduct evidences a strong
likelihood of a recurrence of unlawful conduct in the event of another
organizing effort.”) (internal citations omitted), affd. 267 F.3d 1059
(10th Cir. 2001); Garney Morris, Inc., 313 NLRB 101, 103 (1993) (em-
ployer’s unlawful activities continued even after it agreed to enter into
the purported informal settlement agreement it raised as a defense to the
imposition of a bargaining order, and this indicated a strong likelihood
of recurring unlawful conduct), enfd. 47 F.3d 1161 (3d Cir. 1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
troubling is the Respondent’s interference with the
Board’s investigation of the unfair labor practice charges.
The Respondent threatened employees that if they testi-
fied they would be lying or providing false testimony and
could be fined $5000 or jailed. Thus, the Respondent has
shown not only its disregard for its employees’ rights, but
it has also sought to deter employees from enforcing those
rights and demonstrated its general disregard for the au-
thority of the Board and its processes. This misconduct
plainly “reveals continued hostility to employee rights and
substantial likelihood of the [r]espondent again engaging
in illegal activities.”22
Taken as a whole, the Respondent’s unlawful conduct
sent a clear message to employees that there would be se-
rious adverse consequences if they supported the Union,
and that the Respondent was committed to thwarting even
employees’ recourse to the Board itself. In those circum-
stances, it is quite plain to me that a fair election is unlikely
and that instead the Board should issue a Gissel bargaining
order as a necessary and fully appropriate remedy in this
case.
B.
My colleagues nevertheless shy away from imposing a
Gissel order. They cite that “over 3-1/2 years have elapsed
between the Respondent’s unfair labor practices and the
issuance of our decision today,” which they fear “creates
a substantial risk that a Gissel bargaining order would
prove unenforceable.” They also assert that “a reviewing
court might find that the absence of evidence that the hall-
mark violations were disseminated beyond the few em-
ployees who were subjected to them also weighs against

22 Tufo Wholesale Diary, Inc., 320 NLRB 896, 896 (1996), enfd. 113
F.3d 1230 (2d Cir. 1997).
23 See, e.g., Garvey Marine, Inc. v. NLRB, 245 F.3d 819 (D.C. Cir.
2001) (enfg. 328 NLRB 991 (1999)) (4 years); Evergreen America Corp.
v. NLRB, 531 F.3d 321, 332–333 (4th Cir. 2008) (4 years). Accord:
J.L.M. Inc. v. NLRB, 31 F.3d 79, 85 (2d. Cir. 1994) (”the passage of three
years is not itself sufficient to indicate that the effects of the Company’s
ULPs will no longer be felt.”). Moreover, “[p]ractices may live on in the
lore of the shop and continue to repress employee sentiment long after
most, or even all, original participants have departed.” Bandag, Inc. v.
NLRB, 583 F.2d 765, 772 (5th Cir.1978) (enforcing Gissel order despite
turnover).
24 Relatedly, I would deny the Respondent’s motion to reopen the rec-
ord to introduce evidence of changed circumstances. According to the
Respondent, a fair rerun election is possible due to the departure of the
labor consultants who participated in many of the violations, the lessen-
ing of President Stern’s role at the company, and unit turnover. Initially,
the Respondent never raised the asserted changes in its management
structure at the hearing, and so I find no basis to reopen the record to
permit the introduction of this evidence now. Further, there is no reason
to forego a bargaining order based on the Respondent’s assertion that it
has experienced significant employee turnover, which supposedly has
diminished the effects of its unlawful conduct on the current work force.
See Garvey Marine, Inc. v. NLRB, 245 F.3d 819 (D.C. Cir. 2001)
enforcement of a bargaining order.” As in my dissent in
Sysco Grand Rapids, supra, I am unpersuaded that either
of these concerns justifies withholding one of our most ef-
fective remedies.
About 3½ years have elapsed between the Respondent’s
last unfair labor practice and the Board’s decision today.
The Board has not hesitated to issue—and reviewing
courts have enforced—a Gissel bargaining order within
similar and even longer timeframes.23 Accordingly, I am
unconvinced that the passage of time justifies omitting a
bargaining order here.24
Nor is there merit to the concern that the Respondent’s
violations were not sufficiently disseminated. There were
65 eligible voters at the relevant time. My colleagues and
I agree that the Respondent violated Section 8(a)(1) when
Miko Penn told a group of about 36 employees that Presi-
dent Stern had done many things for employees in the past
and “now he is going to be in a situation where is going to
bargain tough against you.” Six employees were directly
impacted by the remaining unfair labor practices found,
and other violations by Pasalagua and Stern involved
small groups of employees. For the reasons discussed
above, I would further find the Respondent also unlaw-
fully stated that it would lock out employees in a group
meeting with about 36 employees present. Even under the
majority’s findings alone, however, over half of the eligi-
ble voters were impacted by the Respondent’s unfair labor
practices. Such dissemination easily supports a Category
II Gissel order, particularly when combined with the tim-
ing of the Respondent’s continued unfair labor practices
throughout the preelection period and into the Board’s in-
vestigation of those violations.25
(enforcing Gissel order because lore of the shop “affect[s] the ability of
new hires and veteran employees alike to vote their true preferences in a
new election.”); see also NLRB v. Intersweet, Inc., 125 F.3d 1064, 1070
(7th Cir. 1997) (bargaining order enforced where 20 percent of the orig-
inal workforce remained); Amazing Stores, Inc. v. NLRB, 887 F.2d 328,
330–331 (D.C. Cir. 1989) (bargaining order affirmed despite “almost
complete turnover of personnel in the bargaining unit.”). Finally, there
is no merit in the Respondent’s contention that it should be able to intro-
duce evidence of its voluntary agreement to post notices advising em-
ployees of their rights under the Act and that the Respondent is now neu-
tral as to whether employees should unionize. The Respondent has not
demonstrated that such postings could or would cure the unfair labor
practices that justify a Gissel bargaining order here. See Passavant Me-
morial Area Hospital, 237 NLRB 138 (1978).
25 See Armon Co. 279 NLRB 1245, 1245 fn. 2, 1255–1256 (1986)
(Category II bargaining order when the employer’s threats and interro-
gations were directed at half of the unit employees); Piggly Wiggly, 258
NLRB 1081, 1081–1082 (1981) (bargaining order appropriate when half
of the unit was subject to employer’s unlawful threats, surveillance, or
promises of benefits); see also Stevens Creek Chrysler Jeep Dodge, 357
NLRB 633, 637 (2011) (finding a Category II Gissel bargaining order
warranted in light of the seriousness of the violations and the pervasive
nature of the conduct, including factors such as the number of employees
affected, the size of the unit, the extent of dissemination, and the identity
STERN PRODUCE CO. 11
My colleagues express particular concern that the Re-
spondent’s hallmark violations were not widely dissemi-
nated among unit employees.26 This concern misunder-
stands the standard for a Category II Gissel bargaining or-
der. A Category II bargaining order requires the Board to
consider the seriousness and extent of the employer’s un-
fair labor practices and their impact by looking at, among
other things, the number of employees affected, the size of
the unit, the extent of dissemination, the identity of those
committing the unfair labor practices, and whether the em-
ployer is likely to engage in future violations.27 While a
hallmark violation may be present in a Category II situa-
tion, it is not required to justify a bargaining order when
there are numerous other unfair labor practices that to-
gether have a lasting adverse impact on employee free
choice.28 Thus, in Astro Printing Services,29 the Board is-
sued a bargaining order even when there had been no hall-
mark violations. As the Board noted in Flamingo Hilton
Laughlin, in Category II cases it considers “all the unfair
labor practices committed by the employer in determining
whether a bargaining order is appropriate,” including
threats, interrogation, and solicitation.30
Here, my colleagues and I agree that the Respondent has
committed numerous serious unfair labor practices, in-
cluding during the pre-election period and during a Board
investigation. Further, as discussed above, these unfair la-
bor practices touched large numbers of employees in the
unit and involved the highest levels of management. Un-
der Astro Printing Services, this suffice to support a Cate-
gory II order, even without the existence (or dissemina-
tion) of “hallmark” violations. But, in fact, the Respond-
ent did commit several hallmark violations, including
threatening job loss and plant closure. Taken as a whole,
the Respondent’s violations clearly support the issuance
of at least a Category II bargaining order, notwithstanding
my colleagues’ concerns that those “hallmark” violations
were not disseminated widely enough.
III.
In Gissel, the Court instructed that “[i]f the Board finds
that the possibility of erasing the effects of past practices
and ensuring a fair election (or a fair rerun) by the use of
traditional remedies though present, is slight and that em-
ployee sentiment once expressed through cards would, on

and position of the individuals committing the unfair labor practices),
enfd. 498 Fed. Appx. 45 (D.C. Cir. 2012).
26 The term “hallmark” violations has been used to describe unfair la-
bor practices that are highly coercive and have a lasting effect on election
conditions. See NLRB v. Jamaica Towing, 632 F.2d 208, 212–213 (2d
Cir. 1980). These generally include plant closure, threats of plant clo-
sure, discharge or adverse actions against key union supporters, and the
unlawful grant of benefits. Id.
27 See Stevens Creek Chrysler Jeep Dodge, 357 NLRB at 637.
balance be better protected by a bargaining order, then
such an order should issue.”31 As I noted in my dissent in
Sysco Grand Rapids, above, I would follow the Supreme
Court’s instruction and impose a bargaining order to fulfill
the Board’s responsibility to enforce the Act and issue an
order that fully effectuates employees’ rights in this case.
Dated, Washington, D.C. July 31, 2019
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we 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 ac-
tivities.
WE WILL NOT coercively interrogate you about your un-
ion membership, activities, sympathies, or support.
WE WILL NOT coercively interrogate you about your par-
ticipation in the National Labor Relations Board’s inves-
tigation of unfair labor practice charges filed against us.
WE WILL NOT create the impression that we are engaged
in surveillance of your union or other protected concerted
activities.
WE WILL NOT threaten you with the sale of our business
if you support the Union.
28 See NLRB v. Jamaica Towing, 632 F.2d at 213–214. By contrast,
the extent to which hallmark violations have been disseminated is more
critical in a Category I situation. See id. at 212–213.
29 300 NLRB 1028, 1029 (1990) (“Although the Respondent did not
commit any ‘hallmark’ violations (such as threats of plant closure, threats
of discharge, or actual discriminatory discharge), the unfair labor prac-
tices were serious in nature, commenced on the day the Union demanded
recognition and affected the entire small bargaining unit.”).
30 Flamingo Hilton-Laughlin, 324 NLRB 72, 73 (1997).
31 Gissel, 395 U.S. at 614–615.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
WE WILL NOT threaten you with the closure of your
work facility if you support the Union.
WE WILL NOT threaten that we will declare bankruptcy
if you support the Union.
WE WILL NOT threaten you with loss of benefits, reduced
work hours, and unspecified reprisals if you support the
Union.
WE WILL NOT threaten that you will be fined or jailed if
you testify during the Board’s investigation of unfair labor
practice charges filed against us.
WE WILL NOT threaten that selecting a union representa-
tive would be futile.
WE WILL NOT promise you increased wages, benefits,
equipment, and other improved terms and conditions of
employment to discourage you from supporting the Un-
ion.
WE WILL NOT discourage you from testifying in the
Board’s investigation of unfair labor practice charges filed
against us.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights listed
above.
WE WILL hold a meeting or meetings during working
hours and have this notice read to you and your fellow
workers (with Spanish translation) by owner, William
Stern (or, if he is no longer the owner, by a high-ranking
responsible management official), in the presence of Ri-
cardo Pasalagua, Miko Penn, and a Board agent and an
agent of the Union if the Region and/or the Union so de-
sire, or by a Board agent in the presence of Stern (or an-
other high-ranking management official if Stern is no
longer the owner), Pasalagua, Penn, and an agent of the
Union if the Union so desires.
STERN PRODUCE COMPANY, INC.
The Board’s decision can be found at www.nlrb.gov/case/28-
CA-163215 or by using the QR code below. Alternatively,
you can obtain a copy of the decision from the Executive Sec-
retary, National Labor Relations Board, 1015 Half Street,
S.E., Washington, D.C. 20570, or by calling (202) 273-1940.

1 Although Barber entered his appearance in the case, he did not ap-
pear in or participate at the hearing.
2 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); see also Engel-
hard Corp., 342 NLRB 46, 60–61 (2004) enfd. 437 F.3d 374 (3d Cir.
2006).
Fernando Anzaldua and Sandra Lyons, Esqs., for the General
Counsel.
Patrick Scully and John Doran, Esqs. (Sherman & Howard
L.L.C.), for the Respondent.
David Barber, Esq., for the Charging Party.1
DECISION
Statement of the Case
LISA D. THOMPSON, Administrative Law Judge. In this case,
the General Counsel requests a Gissel bargaining order to rem-
edy the alleged “serious and substantial” unfair labor practice
(ULP) conduct of Stern Produce Company, Inc. (Respondent).2
The General Counsel asserts these unfair labor practices pre-
clude conducting a fair election.
On November 3, 2015, the United Food and Commercial
Workers Union, Local 99 (Charging Party, Local 99 or the Un-
ion) filed an ULP charge against Respondent, alleging multiple
violations of the National Labor Relations Act (NLRA or the
Act).3 On December 21, 2015, the Union filed a second ULP
charge against Respondent4 and amended it on January 29, 2016.
The Union filed a third ULP charge against Respondent on Jan-
uary 29, 2016.5 On July 19, 2016, the Regional Director for Re-
gion 28 (Regional Director) consolidated all three charges and
issued a consolidated complaint and notice of hearing.
The consolidated complaint (complaint) alleges that Respond-
ent, through its owner, supervisors and/or admitted agents, vio-
lated Section 8(a)(1) and (5) of the Act when it: (1) interrogated
employees about their union membership, activities, and sympa-
thies, (2) promised its employees increased benefits and im-
proved terms/conditions of employment to discourage them
from supporting the Union, (3) created an impression of surveil-
lance among employees concerning their union activities, (4)
threatened employees with various, unspecified reprisals and a
loss of benefits if they supported/voted for the Union, (5) threat-
ened employees that the owner would sell his business and/or
close the facility if employees selected the Union, (6) told em-
ployees that the Union would not be able to do anything to im-
prove their terms/conditions of employment and it would be futile
for them to vote for the Union, (7) promised employees increased
and other unspecified benefits if the Union lost the Board-con-
ducted election, (8) implemented a previously unenforced open
door policy to discourage employees from voting for the Union,
(9) created an impression of surveillance among employees by
distributing a flyer to employees stating that union organizers
3 Case 28–CA–163215.
4 Case 28–CA–166351.
5 Case 28–CA–168680.
STERN PRODUCE CO. 13
visited employees at their home without revealing the source of
that information, (10) implemented a gift card program to dis-
courage employees from supporting the Union, (11) promulgated
a rule/directive that prohibited employees from talking about the
Union and threatened employees with unspecified consequences
for doing so,6 (12) discouraged employees from and threatened
employees with unspecified reprisals for participating in a Board
investigation, (13) created an impression of surveillance among
employees by suggesting that Respondent knew which employ-
ees participated in the Board investigation, (14) interrogated em-
ployees about their participation in the Board investigation, and
in so doing, interfered with a Board proceeding, (15) threatened
employees with unspecified reprisals for providing testimony to
the Board during the Board investigation, and (16) failed and re-
fused to recognize and bargain with the Union as the employees’
exclusive bargaining representative.
Respondent filed its answer, and an amended answer, deny-
ing all material allegations and setting forth its affirmative de-
fenses to the consolidated complaint.
This case was tried before me in Phoenix, Arizona, from Sep-
tember 6–9, 2016. At trial, the General Counsel amended the
consolidated complaint. The amendment alleged that Respond-
ent violated Section 8(a)(1) of the Act when, in a letter dated July
8, 2016, Respondent: (17) blamed the Union for preventing the
Company from making changes to employees’ wages, benefits,
and working conditions, and (18) represented to employees that
the Union would file ULP charges against Respondent if Re-
spondent provided employees a wage increase. Respondent de-
nied these allegations on the record at the hearing.
On September 9, 2016, the trial recessed so the General Coun-
sel could seek enforcement of several trial subpoenas in U.S.
District Court. The trial resumed to conclusion from February 6–
9, 2017.
After the trial, the General Counsel and Respondent filed ex-
tensive posthearing briefs, which I have read and considered.
Based on those briefs and the entire record, including the testi-
mony of the witnesses and my observation of their demeanor, I
make the following7
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
At all material times, Stern Produce has been a corporation
with an office and place of business in Phoenix, Arizona. Re-
spondent has been engaged in the wholesale distribution of food
products.

6 In its brief, the General Counsel withdrew their allegation that Re-
spondent violated the Act when one of its supervisors promulgated an
overly broad and discriminatory rule/directive prohibiting employees
from talking about the Union and threatened employees with unspecified
consequences for doing so. See GC Br. at 83; see also GC 1(i) at ¶5(p).
7 Abbreviations used in this decision are as follows: “Tr.” for the
Transcript, “GC Exh.” for the General Counsel’s exhibits, “R. Exh.” for
Respondent’s Exhibits, “GC Br.” for the General Counsel’s brief, and
“R. Br.” for Respondent’s brief. Specific citations to the transcript and
exhibits are included where appropriate to aid review and are not neces-
sarily exclusive or exhaustive.
8 I find that Stern and Tarango were supervisors of Respondent within
the meaning of Sec. 2(11) of the Act and agents of Respondent within
It is undisputed that, during the 12-month period ending No-
vember 3, 2015, Respondent purchased and received goods val-
ued in excess of $50,000 directly from points outside the State
of Arizona. Accordingly, I find that Respondent has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
It is also undisputed, and I find that, at all material times, Lo-
cal 99 has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
1. Respondent’s facility
Stern Produce is a wholesale refrigerated distribution com-
pany that provides produce to grocery stores, restaurants, nurs-
ing homes, and hospitals in Arizona. It has facilities in Phoenix,
Tucson, and Flagstaff, Arizona. The conduct at issue in this case
occurred at Respondent’s facility on 7th Street and University
Drive in Phoenix (Respondent’s facility).
Respondent employs approximately 90 employees. Employ-
ees work in three major departments: purchasing, sales, and op-
erations.

Warehouse employees and drivers work in the opera-
tions department. Respondent employs about 35 drivers and 16
to 18 warehouse employees, working day and night shifts. At the
time that the Union petitioned to represent Respondent’s em-
ployees, Respondent employed a total of 65 drivers and ware-
house employees.
At all material times, William “Billy” Stern (Stern) was the
president of Stern Produce. He oversaw the general business and
day-to-day operations of the Company. During October and No-
vember 2015, Kirk Massey (Massey) served as Respondent’s
vice president. Kerry Boykins (Boykins) was in the process of
becoming the warehouse manager who oversaw the warehouse
employees. Transportation Manager Jesus Tarango (Tarango)
oversaw the drivers.8
Tina Leese was an advisor for Respondent, who reported di-
rectly to Stern. While Leese’s exact title is unclear from the tes-
timony, it is undisputed that Leese oversaw the books, helped
make decisions, ensured the facility ran smoothly, took care of
any problems, and acted as a liaison for Stern. Although Stern
downplayed Leese’s role, testifying that she “sometimes”
worked at Respondent’s facility, I credit Leese’s testimony that
she worked at the facility Monday through Friday, 3 a.m. to 6
p.m. and on sometimes weekends as well.9
the meaning of Sec. 2(13) of the Act. See R. Answer at ¶4(a). I further
find that, between October and November 2015, Massey was also a su-
pervisor and agent of Respondent under the Act.
9 I have based my credibility findings on multiple factors, including,
but not limited to, the witness’ opportunity to be familiar with the sub-
jects covered by the testimony given; established or admitted facts; the
impact of bias on the witness’ testimony; the quality of the witness’ rec-
ollection; testimonial consistency; the presence or absence of corrobora-
tion; the weight of the evidence; the witness’ demeanor while testifying;
inherent probabilities; and reasonable inferences that may be drawn from
the record as a whole. Daikichi Sushi, 335 NLRB 622, 633 (2001), enfd.
56 Fed.Appx. 516 (D.C. Cir. 2003); New Breed Leasing Corp. v. NLRB,
111 F.3d 1460, 1465 (9th Cir.), cert. denied 522 U.S. 948 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
2. The Union’s organizing campaign
It is undisputed that Local 99 sought to organize and represent
Respondent’s drivers and warehouse workers. Beginning
around May 2015, the Union began soliciting signed authoriza-
tion cards from Respondent’s drivers and warehouse employees.
Union representatives routinely made house visits to employees,
and according to Union Organizer Ron McDade (McDade), or-
ganizers were almost always welcomed by employees. The Un-
ion also held meetings at the union hall.
It is also undisputed that, as the Union began educating em-
ployees about organizing, the Union collected 42 authorization
cards, which represented 64 percent —or a majority of support—
for -from the drivers and warehouse employees (the petitioned
unit).10 As such, on October 14, 2015, the Union filed a petition
for election with Region 28 (the Region) of the National Labor
Relations Board (NLRB or the Board.)11
Stern was out of town when he first learned of the Union’s
organizing drive. Leese telephoned and told him about the elec-
tion petition. Thereafter, Stern, Region 28 and the Union entered
into a Stipulated Election Agreement, which set an election date
for November 5, 2015. Pursuant that agreement, Respondent
provided the Region and the Union with a list of 65 eligible em-
ployee voters from the proposed unit.12
Respondent opposed unionization. Stern hired labor consult-
ant firm, The Crossroads Group, and consultants Ricardo Pasa-
lagua (Pasalagua) and Miko Penn (Penn), to represent Respond-
ent’s view.13 According to Sterm, he never experienced an or-
ganizing campaign before and employees approached him ex-
pressing confusion about the process, their rights, and the Un-
ion’s claims. As a result, Stern asked the consultants to educate
employees about the process. While Stern testified that he
wanted to debunk myths that were rumored around the facility
about the process, he also admitted that he wanted to keep his
company a union-free environment. I also credit consultant Penn
who testified that she is typically hired by employers to convince
employees to vote “no” on unionization.14
On October 22, 2015, Pasalagua and Penn met with Stern and
other management personnel to learn about the nature of Re-
spondent’s business, employees’ schedules, the election petition
and what Stern wanted them to do vis-à-vis, the organizing cam-
paign. They also coordinated meetings with employees to inform
them about the election, the process and to convince them to re-
main union free.15
It is undisputed that, between October 22 and November 3,
2015, Pasalagua and Penn held various large and small group
meetings with Respondent’s drivers and warehouse employ-
ees.16 These meetings were mandatory as Respondent posted
flyers about the meetings at the timeclock requiring employees
to attend. While Pasalagua was equivocal about his role at

Credibility findings need not be all or nothing propositions, and it is com-
mon for a fact finder to credit some, but not all, of a witness’ testimony.
Daikichi Sushi, supra at 622.
10 GC Exhs. 7, 21, 33 (a-hh); see also GC Exh. 34–38.
11 GC Exh. 4 at ¶3.
12 Tr. 94; GC Exh. 7; see also GC Exh. 4 at ¶2 and att. A. The parties
stipulated to the unit description at the hearing.
Respondent’s facility, I credit Penn’s testimony that Pasalauga
led Respondent’s antiunion campaign since he was bilingual
(spoke Spanish and English—Penn only spoke English and a
large portion of employees were Spanish-speaking) and had
more experience than Penn.17
Pasalagua used four sets of PowerPoint presentations (also
known as phases), to convey information about unionization.
These phases were written in English and Spanish. Pasalagua
conducted meetings with the warehouse workers while Penn
held meetings with the drivers.
B. Specific Incidents of Alleged Unlawful Conduct
1. The October 2015 large group meeting
On October 23, 2015, Pasalagua conducted a large group
meeting with Respondent’s warehouse employees during various
shifts. During these meetings, Pasalagua went over the Power-
Point presentations, each one covering a different subject. Each
meeting lasted approximately an hour. Pasalagua held four sets
of meetings with each group of warehouse employees.
Penn also held her first large group meeting with the drivers
on October 23. Her meetings were given in English. Approxi-
mately 14 to 28 drivers attended. Like Pasalagua, Penn held sev-
eral sets of meetings with the drivers during their shifts, and she
showed them the PowerPoint presentations. Penn took attend-
ance at her meetings to keep track of which employees received
the information and to ensure she followed up with any specific
employee who could not attend at that time.
Although Penn testified that she typically: (1) shared a state-
ment of employee’s rights under Section 7 of the Act, (2) ex-
plained to employees their right to freely choose to unionize, (3)
assured them that no retaliation would result regardless of their
decision to unionize, and (4) explained the role of the Board, I
credit an audio recording made by driver Roberto Rosas (Rosas),
a union supporter, that detailed the content of what Penn dis-
cussed in her large group meetings with employees.
Specifically, during a mandatory large group meeting held
in/around October 29, 2015 with approximately 36 employees,
Penn was recorded making the following statements:
Some of you in here already have been saying that you
would like to be shop steward, and you have told your
coworkers that.18
. . .
You also have the option to strike. If a final offer is
rejected, a strike vote will be taken. Most of you don’t want
to go on strike. But if you do, you have a right to vote for
that. Or, the Employer, Billy, as a pressure tactic to slap
some sense into the Union, and they can lock you out.
That is Billy’s leverage. He says, ‘look these negotiations
13 At all material times, Pasalagua and Penn have been agents of Re-
spondent within the meaning of Sec. 2(13) of the Act. See GC Exh. 1(n)
at ¶4(b).
14 Tr. 97–99, 106, 120; see also Tr. 196.
15 Tr. 211–212.
16 Tr. 213.
17 Tr. 213.
18 GC Exh. 22(b).
STERN PRODUCE CO. 15
are not going anywhere. We are not coming to an agree-
ment.’ You are not going on strike or he finds out that you
may be going on strike next week. And in order to protect his
own business, he can lock the door, on all of you. That is
absolutely legal. That is his pressure tactic that he has to make
sure the Union agrees to his terms.19
. . .
Just so you know, the Union representative was here last
night. A couple of employees approached the Union
and said, ‘Will you sign this? Part of that was on strike.
Part of that was on – you are promising me two, five, ten
dollars more per hour. All this is great stuff. Put it in
writing. Guarantee me that you can get me one penny
more.’ And they said that they could not sign it. Why won’t
they sign it? They don’t have the power to. Like I’ve been
telling you all along . . .20
. . .
Why is he [Stern] scared, right? He’s not scared. He’s con-
cerned. And he doesn’t want to be put in a situation where
he’s negotiating against your interests. Because remember,
Billy is not going to be bargaining with his stuff. The Union
doesn’t bargain with its wages and benefits and the Union
still gets paid too. What goes on the negotiating table are
your wages, your hours, your overtime, your everything.
So, if you put Billy in that arena where he has to bargain
tough, he will. He is going to make sure that his business
survives. He doesn’t want to have to. Look at all the stuff he
has done for many of you in here. Many of you were given
a second chance by him at one point or another – you’ve
gone to him and asked for loans, asked for him to change
your schedule . . . now he is going to be in a situation
where he is going to bargain tough against you. If that is
the road you want to go down. So, if you put him that room,
like a boxing match, if you put him there, he is going to
fight. He doesn’t want to be there because he wants to
make sure he can do what is best for the company, and the
company is you.21
Although Rosas was vague and evasive when asked what and
who prompted him to make the audio recording, I nevertheless
find the recording authentic and representative of what Penn told
employees during her large group meetings.
2. The small group meetings
It is undisputed that Pasalagua and Penn also met regularly
with employees either individually or in groups of two or three.
The small group meetings were held in one of two conference
rooms at Respondent’s facility. Although Stern testified that he
attended and “listened in” on a few small group meetings, but
only when employees asked him to attend, I credit the various
employees who testified that they never asked for Stern’s pres-
ence and he attended and played an active role in discussions
with them and the consultants.

19 Id.
20 Id.
21 Id.
Moreover, while Stern, Penn, and Pasalagua either denied or
were equivocal about whether individual employees were called
over the intercom to meet with the consultants, I credit dispatcher
Lynette Guzman (Guzman) who testified that Acting Warehouse
Manager Boykins instructed her to call certain employees over
the intercom to come meet with Pasalagua.22 In so doing, I find
that Pasalagua told Boykins who he wanted to speak with, and
subsequently, Boykins instructed Guzman to announce their
names over the intercom system such that everyone in the ware-
house knew who was being summoned to meet with Pasalagua.
Nevertheless, it was during these small group meetings with
employees that many of the alleged violations occurred.
3. The alleged coercive statements made during small
group meetings
The substance of what occurred in many of these meetings
turns on an evaluation of credibility.23 Having carefully re-
viewed the record, and based on the testimony of employees Jose
Pacheco (Pacheco), Jose Loc (Loc), Rosas, Jose Ruiz (Ruiz), and
Eduardo Mancera (Mancera), I find the following facts:
a. Pacheco’s small group meetings with Pasalagua
At all material times, Pacheco served as a forklift operator for
Respondent. He was also a union supporter. Although Pacheco
claimed he attended six or seven small group meetings in late
October 2015—approximately 2 weeks before the scheduled
election—I do not find Pacheco credible on this point since he
had difficulty remembering many of the basic details of his con-
versations with Pasalagua, i.e., who was present at the meetings
with him, when were they held, etc. However, I do find that,
each time Pacheco met with Pasalagua, Guzman announced his
name over the intercom which was heard throughout the entire
facility.
In one meeting with Pasalagua, Pasalagua told Pacheco that if
the Union did not come into the Company, Stern would try to
improve salaries, warehouse workers’ positions, and provide
more opportunities for employees to grow. Pasalagua also told
him that if employees gave Stern a vote of confidence and em-
ployees voted against the Union, Stern would give employees a
raise.
For his part, Pasalagua denied the statements attributed to him
by Pacheco. However, I credit Pacheco’s testimony over that of
Pasalagua regarding this incident, mainly because his testimony
was corroborated by other employees who testified to being told
similar statements from Pasalagua.
Specifically, as discussed later in this decision, drivers Rosas
and Ruiz testified that, during one of their small group meetings
with Pasalagua, Pasalagua told them to give Stern a “second
chance” and if they voted against the Union, Stern would ensure
that “things would change [implying for the better].” Accord-
ingly, I find that Pasalagua made the statements attributed to him
during his first meeting with Pacheco.
Pacheco recalled another meeting with Pasalagua, Stern, and
warehouse laborer Gasper Beltran (Beltran) in late October
2015. In that meeting, Pasalagua told them that Stern had an offer
22 Tr. 120.
23 Id. at fn. 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
from Sysco to sell his company, but Stern rejected it because he
did not want to leave his employees without employment. Pasa-
lagua reiterated to Pacheco and Beltran that, while Stern did not
want to sell his company, if presented with the opportunity, Stern
had the option of selling to Sysco. Pasalagua then stated words
to the effect that “if the union won, Stern could reduce work
hours in order to give employees a raise or he would hire more
employees that could do their work and give the veteran workers
a penny raise.” Pasalagua ended with telling Pacheco and Beltran
if employees could not get anything [regarding salary increases]
from their supervisor, they could talk to Pasalagua. Beltran con-
firmed Pacheco’s version of the meeting.24
For his part, Stern denied ever meeting with or participating
in a small group meeting with Pacheco or Beltran. However, I
credit Pacheco’s and Beltran’s testimony over that of Stern since
both corroborated the other’s testimony and had specific recol-
lection of Stern participating in their small group meeting. In
contract, Stern’s testimony in this regard amounted to general,
perfunctory denials that the incident occurred.
While Stern also denied ever receiving any offers to buy his
business, including any from Sysco, he admitted to receiving six
or seven voicemails since 2013 of people expressing interest in
buying his company. I find Pasalagua used this information in
his conversations with Pacheco and Beltran. Lastly, although
Stern denied telling anyone he would consider selling his com-
pany and never threatened to sell or close down his business if
employees unionized, which I find credible, testimonial evidence
reveals that it was Pasalagua, not Stern, who made the statement
to Pacheco and Beltran.
For his part, Pasalagua again denied making the statements
attributed to him. However, I do not find Pasalagua credible for
several reasons. First, Pasalagua often gave testimony that was
directly controverted by his own admissions on the record. For
example, Pasalagua initially denied meeting with individual em-
ployees prior to the scheduled election, then, after being pressed
by the General Counsel, changed his testimony and admitted that
he had.
Second, Pasalagua was very verbose in his responses, gave
longwinded and oftentimes nonresponsive answers, and spoke
rapidly, as if he did not intend for counsel to understand his re-
sponses. Even after I instructed him to slow down and answer
the questions asked, he continually spoke rapidly and was eva-
sive and longwinded in his responses. Moreover, as Pasalagua
gave his testimony on direct (as a Rule 611(c) witness), he often
leaned back in his chair and his posture appeared sloughing and
overly relaxed. This left me with the impression that he failed to
appreciate the seriousness of the proceedings, and coupled with

24 Tr. 812–813, 839–840.
25 These witnesses ignored their subpoenas for which the General
Counsel sought enforcement in U.S. District Court. Because of their fail-
ure to appear, Respondent counsel learned these witnesses’ identity and
that they were expected to testify. With this knowledge, Respondent
counsel, in my opinion, took advantage of the recess in the hearing in
order to interview them prior to their expected testimony. I find coun-
sel’s conduct in this regard, at minimum, violates the Board’s rules pro-
hibiting discovery, and at most, manipulative and inherently improper.
They were admonished for their conduct on the record.
his inconsistent testimony, made him appear less than fully cred-
ible.
Third, it appears that Pasalagua tried to evade responding to
his subpoena ad testificandum and subpoena duces tecum which
were timely served on him by the General Counsel in the case.
Despite attesting that he never received the General Counsel’s
subpoenas, I note that both subpoenas were properly served and
received at Pasalagua’s then-current address of record.
Lastly, and most importantly, despite being instructed by me
not to speak to anyone about his testimony, I discovered that
Pasalagua, at the behest of Respondent counsel, served as an in-
terpreter for Respondent when Respondent counsel interviewed
two employee witnesses who were expected to testify on behalf
of the General Counsel.25
Apparently, both employee witnesses were told they were re-
quired to meet with Pasalagua and Respondent’s counsel as part
of their subpoena. When the witnesses were questioned by Re-
spondent counsel, Pasalagua gained knowledge about what each
of these witnesses would testify despite being aware that he
could have been recalled at a witness in this case.
Technically, Pasalagua’s conduct is not a direct violation of
my sequestration order, yet I find that it is an indirect violation
because his conduct violates the spirit of my order. In fact, Pasa-
lagua (and Respondent’s counsel) knew full well that his appear-
ance during these witnesses’ interviews was, at minimum, a con-
flict of interest and at worst, was intimidating for the employee
witnesses testifying in this matter.26 Needless to say, I find Pasa-
lagua’s conduct (and the conduct of Respondent’s counsel in ar-
ranging the situation) completely improper, and as a result, made
Pasalagua’s testimony less than fully credible.
In making the above factual findings, I credit Pacheco’s ver-
sion of events over that of Pasalagua for several reasons.27 First,
Pacheco’s testimony is corroborated by driver Juan Juarez (Jua-
rez) who confirmed being told similar statements by Pasalagua.
Specifically, Juarez testified that Pasalagua told him in a small
group meeting words to the effect that “there were many compa-
nies that were union that ultimately go bankrupt”—the implica-
tion being if Respondent unionized it would also go bankrupt. I
found Juarez’s testimony credible on this point.
Second, Pacheco had a specific recollection of this conversa-
tion with Pasalagua. He appeared even tempered, and his de-
meanor was composed and steady. In contrast, Pasalagua’s tes-
timony was generalized, nonspecific and amounted to general,
perfunctory denials that the incident occurred. Third, and most
importantly, because Pacheco is a current employee testifying
before management and against his own economic interest, his
testimony has a special guarantee of reliability.28 Accordingly, I
26 Again, I am extremely troubled by the conduct and propriety of sea-
soned Respondent counsel who arranged to interview these employee
witnesses during a recess in the hearing knowing full well that discovery
is not permitted in Board proceedings.
27 See Daikichi Sushi, 335 NLRB 622, 622 (2001) (credibility findings
need not be all or nothing propositions, and it is common for a fact finder
to credit some, but not all, of a witness’ testimony).
28 See Gold Standard Enterprises, 234 NLRB 618, 619 (1978) (testi-
mony of current employees, particularly while management representa-
tives are present, that accuses respondent of wrongdoing has inherent
STERN PRODUCE CO. 17
find that Pasalagua made the statements attributed to him during
his small group meeting with Pacheco and Beltran.
b. Loc’s small group meetings with Pasalagu
Jose Loc (Loc), one of Respondent’s drivers, also confirmed
being told that Stern could close the business and that the Union
would disadvantage employees. In late October or early Novem-
ber 2015, Loc attended two meetings alone with Pasalagua. In
the first meeting, Transportation Manager Tarango told Loc to
go meet with Pasalagua in the conference room. Once Loc ar-
rived in the conference room and after some general discussion
about what was going on with the Company and the Union’s or-
ganizing campaign, Pasalagua told Loc that the Union was not
good for the Company or the workers, and that there was a “pos-
sibility” that Stern would close the business. Pasalagua also told
Loc that employees would be better off gathering together and
speaking with Stern directly.
Pasalagua then said the Union would promise employees
many things but ultimately Stern would make the final decision.
Pasalagua also stated that, if the Union won, Stern would have to
close the business without paying anyone and employees would
need to go on strike if they did not win. Loc remained silent dur-
ing the entire meeting. Ultimately, Pasalagua asked Loc if he had
any questions, and Loc replied, “no.” At that point, the meeting
ended and Loc returned to work.
Loc met with Pasalagua a second time. This time, Pasalagua
saw Loc in the warehouse and signaled Loc to come talk with
Pasalagua in the small conference room.

Only Loc and Pasa-
lagua were present in the room. Once they arrived in the confer-
ence room, Pasalagua discussed an incident with Loc that oc-
curred about a week before their second meeting.
A week prior, while driving his work truck, Loc hit the
bumper of another vehicle. When Loc told Stern about the acci-
dent, Loc explained to Stern that there was a discrepancy in what
happened—Loc admitted that he hit a part of the other vehicle’s
bumper, but the mechanic argued that Loc damaged the entire
bumper. Stern believed Loc’s version of the accident.
In any event, as Loc told Pasalagua the details of the accident
in their meeting, Pasalagua told Loc words to the effect, “so as a
result of the accident, Stern did you a favor—he believed your
version of the accident. Now you should believe in Stern.” Pasa-
lagua then told Loc words to the effect that if he believed in
Stern, then there would be more opportunities at the facility.
Pasalagua then said that the Union was “no good” then asked
Loc if he had any questions. Loc replied, “no” and the meeting
concluded.
Pasalagua again denied making any statements about Stern
closing the business or promising employees any benefits if they
voted against the Union. However, I credit Loc’s testimony over
that of Pasalagua for the same reasons noted in my credibility
analysis above. Although there were considerable discrepancies
in Loc’s testimony regarding when his small group meetings

reliability because these witnesses are testifying adverse to their pecuni-
ary interests).
29 Loc also testified to various statements given to Respondent’s coun-
sel John Doran during the recess of the hearing. These statements are
arguably favorable to Respondent. However, because I previously found
Respondent’s counsel’s conduct tantamount to conducting unlawful
were held, whether he was on light duty or on leave when the
meetings occurred and why he ignored his subpoena ad testifi-
candum served on him by the General Counsel, I find these in-
consistencies insignificant.29 Rather, I credit Loc’s testimony as
to what Pasalagua told him, because it is corroborated by
Pacheco and Juarez who testified to being told similar statements
by Pasalagua.
Moreover, Loc was articulate and appeared even tempered
throughout his testimony. His responses were direct, specific and
he maintained great recall of incidents. In contract, Pasalagua
gave general, nonspecific denials. Lastly, Loc’s testimony has
enhanced reliability due to his status as a current employee.30
Loc’s overall demeanor struck me that he was committed to tell-
ing the truth. Accordingly, I find that Pasalagua made the state-
ments attributed to him by Loc.
c. Rosas’ small group meetings with Pasalagua
Driver Rosas is a longtime employee of Respondent. He was
a union supporter and served on the union organizing committee
at Respondent’s facility. He attended the mandatory large group
meeting conducted by Penn on October 29, 2015, where he rec-
orded her statements to employees.
Prior to the Union’s petition, it is undisputed that the drivers
and warehouse employees complained for several years about
the lack of wage increases or promotion opportunities. Many of
them complained to their respective supervisors but nothing was
done to address their concerns.
Rosas attended a small group meeting with Juarez, Stern, and
Pasalagua. When Rosas and Juarez arrived in the conference
room, at some point, Rosas reiterated that employees had been
complaining about the lack of wage increases and promotion op-
portunities. At that point, Stern told them that he wanted an op-
portunity for the Union not to come onboard and that “things
were gonna change.” Stern also told the men that, while he was
unaware that employees requested wage increases and improved
working conditions, nothing could be done about their previous
requests since his supervisors never told him about it. Although
Stern also told Rosas and Juarez that Stern knew employees were
organizing (only because they were organizing), there would be
no reprisals. However, Stern made a point to ensure that employ-
ees received guarantees from the Union.
In making the above findings, I credit Rosas’ testimony about
his conversation with Stern/Pasalagua, primarily because his tes-
timony is corroborated by Pacheco and Loc, who testified to be-
ing told similar statements by Pasalagua. Although Stern “could
not recall” meeting with Rosas and Juarez, he did not affirma-
tively deny that he attended the meeting either. Finally, because
of Rosas’ status as a long-term current employee, Rosas’ testi-
mony warrants enhanced reliability under the circumstances.31
Accordingly, I find that Stern made the statements attributed to
him by Rosas.
discovery of a witness, and wholly inappropriate, I will not consider any
statements given by Loc during his interview with Respondent’s counsel
in this decision.
30 See Gold Standard Enterprises, supra..
31 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
d. Ruiz’ small group meetings with Pasalagua
Driver Ruiz, a union supporter, attended two small group
meetings. He recalled his first meeting was held in Respondent’s
small conference room. He, Stern, and Pasalagua attended. Dur-
ing his meeting, Pasalagua told Ruiz that Stern wanted to speak
with him. When he arrived in the conference room, Stern asked
Ruiz whether he supported the union. Ruiz replied that he did not
know whether he supported the Union, because he needed more
information.
As the conversation proceeded, Ruiz lifted his shirt and
showed Stern and Pasalagua that he had been herniated. Ruiz
discussed with them his previous work-related injury and how
he had not been properly compensated through workers compen-
sation. After learning of Ruiz’ issue, Pasalagua responded that
“Stern will fix your problem.” Stern apologized, told Ruiz that
he was unaware of what happened to him and that it “will not
happen again.” Ruiz admitted that he had never told Stern about
his workers compensation issues prior to this small group meet-
ing.
Ruiz attended a second meeting with Rosas, Pasalagua, and
Stern in November 2015. The meeting lasted approximately 10
minutes. When the men arrived, Pasalagua and Stern asked them
whether they supported the Union. Before they could respond,
Pasalagua and Stern asked the men to vote against the Union be-
cause Stern would “change everything” and Stern wanted a “sec-
ond chance” [to change everything]. At some point, Pasalagua
interjected that there “was a really small group that wanted the
union.” Thereafter, Stern gave both men a document (called the
list of guarantees) stating that Respondent would not retaliate
against them no matter how the men voted in the election.32 Af-
ter handing the men the guarantees, Stern told them that his cell
phone “was there” and that they could use it to report anything
going on at the facility. The meeting ended without incident.
As with Pacheco and Rosas, in making the above findings, I
credit Ruiz’ testimony and discredit the testimony of Stern and
Pasalagua for the same reasons stated in my credibility analysis
above. Overall, I found Ruiz’ testimony was generally corrobo-
rated by Pacheco and Rosas. His recollection of his conversa-
tions with Pasalagua and Stern were specific in nature, and his
demeanor was steady and composed. As such, Ruiz struck me as
committed to speaking the truth. Accordingly, I find that Pasa-
lagua and Stern made the statements attributed to them by Ruiz.
e. Mancera’s small group meetings with Pasalagua
Warehouse employee Mancera, a longtime employee of Re-
spondent, was a union supporter. He attended two small group
meetings with Pasalagua a few weeks prior to the election. In his
first meeting, Mancera met with Pasalagua and approximately 8
to 10 night-shift workers in the conference room. Pasalagua in-
troduced himself, told employees he was a legal counselor to
Stern, and that he was meeting with them to discuss the Union.
Pasalagua then told employees about the benefits and disad-
vantages of the Union but noted that the only disadvantage to
unionizing was that Stern and the Union would have to negotiate

32 See GC Exh. 23; see also GC Exh. 12.
33 See Gold Standards, 234 NLRB at 629 (testimony of current em-
ployees, particularly while management representatives are present, that
everything. Pasalagua then stated that Stern was unaware of what
was going on with the Company and that Stern could make
changes if employees gave him a vote of confidence. At that
point, Pasalagua told employees that Stern was open to any com-
plaints they had and, based on that, Stern would see what
changes he could make. However, Pasalagua stressed that, if the
Union came on board, employees could not have any direct deal-
ings with Stern; rather employees would have to wait until the
Union negotiated with Stern.
Mancera’s second small group meeting occurred in late Octo-
ber/early November 2015. He, Pasalagua, and Stern were pre-
sent. At that meeting, Stern asked him how things were going at
work. Mancera responded affirmatively. At that point, Stern told
Mancera that he knew Mancera was ‘a good worker,” hoped that
everything was going well for him, and if Mancera would give
Stern a vote of confidence, he would try to make things better for
the night-shift workers. Stern stressed that he could not promise
Mancera anything otherwise he could face an unfair labor prac-
tice charge. However, Stern again told Mancera that if he would
give Stern a vote of confidence, Stern would try to make
changes. Pasalagua was silent during the meeting.
At that point, Mancera reminded Stern that the night workers
had petitioned for jackets to protect them against the cold while
loading merchandise. Stern replied that he would try to get the
jackets. The meeting concluded at that point.
Approximately 4 days before the election date, Mancera was
working in the warehouse. Pasalagua saw Mancera and walked
over. Pasalagua told Mancera words to the effect, “Stern is upset
with you because you are riling up employees.” Mancera denied
riling up anyone. Pasalagua then told Mancera that he should
calm down because Stern was considering Mancera for a super-
visor position on the night shift once “this [election] blows over.”
Mancera repeated that he was not the person riling up anyone
and challenged Pasalagua to point out the person who accused
Mancera. In response, Pasalagua said, “well you know,” then
left.
For his part, Pasalagua denied that he made the statements at-
tributed to him by Mancera. However, I credit Mancera’s testi-
mony for several reasons. First, Mancera’s testimony is gener-
ally corroborated by Pacheco, Ruiz and Rosas, who confirmed
being told similar statements by Pasalagua. Second, Mancera’s
demeanor was especially notable, because he was even-keeled,
well-spoken and direct and specific in his recall of events, par-
ticularly since he had just gotten off work at 4:00 a.m. the day of
the hearing and was without sleep when he gave his testimony.
Most importantly, Mancera’s testimony has a heightened relia-
bility due to his status as a current employee.33
In contrast, as stated above, Pasalagua’s demeanor and gen-
eral perfunctory denials coupled with his conduct during the
hearing recess (as outlined above) left me with the impression
that he was evasive and manipulative, and overall, not committed
to telling the truth. Accordingly, I find that Pasalagua made the
statements attributed to him by Mancera.
accuses respondent of wrongdoing has inherent reliability because these
witnesses are testifying adverse to their pecuniary interests)..
STERN PRODUCE CO. 19
f. Beltran’s small group meetings with Pasalagua
Beltran attended small group meetings with Pasalagua. I
found Beltran’s testimony credible where he explained that,
when he was summoned to Respondent’s small group meetings,
he always met with Pasalagua and either Pacheco, warehouse
employee Paula Duran (Duran) and/or warehouse worker So-
corro Chacon (Chacon).
However, I do not find the remainder of Beltran’s testimony
credible for several reasons. First, Beltran’s testimony was not
corrobated by any other witness. For example, although Beltran
testified, in general, that Pasalagua told employees: (1) that em-
ployees could not trust the Union because the Union could not
deliver on what they promised since Stern, as the owner, always
had the last word, (2) that employees were placing their jobs at
risk by paying attention to the Union and (3) that Stern could
close his business; Chacon and Duran (who Beltran claimed al-
ways attended his small group meetings with him) never corrob-
orated Beltran’s account of their meetings. Moreover, even
though Beltran claimed to have attended small group meetings
with Pasalagua (and Chacon, Duran, or Pacheco) at least four to
five times a week prior to the election, he could not provide any
specific dates when these meetings occurred.
Second, I note that Beltran gave inconsistent and often times
contradictory testimony. For example, while Beltran stated that,
in one of his small group meetings, Pasalagua told employees
that the Union may not be helpful to employees, Beltran admitted
that Pasalagua also told employees that, because the Union and
Stern would have to negotiate, Stern would not necessarily have
to agree with the Union’s demands. In fact, Beltran admitted that
neither Stern, Pasalagua, or Penn ever told him that Respondent
would deliberately refuse to negotiate with the Union if they won
the election.34 Nor did Stern, Pasalagua, or Penn ever threaten
him with reprisals based on how he voted in the election or
threaten a strike or lockout if the Union won the election.35
In addition, although Beltran recalled Pasalagua telling em-
ployees that, at other companies that voted in a union, some em-
ployees lost their jobs, Beltran also admitted that Pasalagua told
employees that the only way Stern would ever shut down his
company would be if the Company fell on financial hard times.36
Finally, while Beltran inferred in his testimony that he was
being pressured by Respondent to vote against the Union, he also
admitted that he felt scared and pressured by the Union—to sup-
port them—and some of his coworkers—to vote against the Un-
ion.37
Respondent’s counsel also attempted to call Beltran’s veracity
into question by eliciting testimony that Beltran allegedly falsi-
fied a W-4 tax form from 2007 (executed in 2009) which resulted
in Respondent receiving a “no-match” letter from the Social Se-
curity Administration (SSA). However, I was persuaded that
Beltran’s testimony lacked veracity when Chacon testified that
Beltran, who testified the day before Chacon, telephoned her to
ask her forgiveness for testifying that she attended small group
meetings with him that she had not attended. Not only do I find

34 Tr. 833.
35 Tr. 827.
36 Tr. 835–836.
37 Tr. 827.
Beltran’s testimony suspect after learning of this development,
as discussed later in this decision, Chacon testified that Pasa-
lagua never made any of the statements Beltran attributed to him.
In any event, I find that Beltran clearly violated my sequestra-
tion order and instructions not to discuss his testimony with an-
yone. Except where I specifically noted, Beltran’s conduct in
this regard coupled with his inconsistent and contradictory state-
ments called his entire testimony into question and, as such,
made his testimony completely unbelievable.
g. Chacon’s small group meetings with Pasalagua
Warehouse employee Chacon attended two small group meet-
ings in late October/early November 2015. The first meeting
Chacon attended with Beltran, Duran and Pasalagua. The second
meeting was attended by Beltran, Duran, warehouse employee
Oscar Pacheco (different from Jose Pacheco) and Pasalagua. In
both meetings, Chacon never heard Pasalagua make any threats
about Stern closing or selling the Company. In fact, despite what
had been rumored around the facility, it was Chacon who asked
Pasalagua whether Stern would sell/close the business if the Un-
ion won, to which Pasalagua responded that Stern would not
close the company, and the only way Stern would close the fa-
cility is if the Company had financial problems.
Overall, I find Chacon’s testimony credible. Specifically,
Chacon appeared confident and even tempered on the stand de-
spite rigorous cross examination by the General Counsel. She
was articulate and straightforward in her testimony.
While Jose Pacheco previously attested that Pasalagua told
him that Stern “could” sell the Company to Sysco, which I found
credible, I nevertheless find Chacon’s testimony credible as it is
possible that Pasalagua never made the statement to Chacon dur-
ing her small group meetings. Accordingly, while I still believe
Pasalagua told Pacheco and others that Stern could sell the Com-
pany, I believe Pasalagua did not make that statement to Chacon.
4. “Where Have I Been?” flyer
At some time prior to the scheduled election date, Respondent
provided a flyer titled “Where Have I Been?” to employees.38
The flyer was signed by Stern. The flyer was distributed in re-
sponse to the Union’s flyer to employees inquiring where Stern
had been.39 While Stern did not recall who drafted his flyer, I
credit Leese’s testimony that she provided the flyer to Stern for
him to look over and sign. The flyer was written in English and
Spanish.40
The flyer stated:
First, I would like to take a moment to thank the majority of
Stern employees for their overwhelming support!
Second, the union has questioned where I have been. This is
Where I Have Been for the Past Two Years Since I took Over
Stem!
• Repairing & Raising the Loading Docks $81,000.00
•Purchasing New Trucks for your Safety 5,250.000.00
• Adding Lights for the Warehouse 33,000.00
38 GC Exh. 14(a).
39 Tr. 142.
40 GC Exh. 14(b).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
• Repairing the Roof 98,000.00
•Repairing the Cooling Tower for Ammonia Room 30,000.00
• New Automated Freezer Door 32,000.00
• Repair Roof Top Ammonia Piping 13,000.00
• New Pallet Jacks 78,000.00
• New Fork Lifts 185,000.00
• Cell Phones provided to drivers for $30,000.00 work use &
personal use during off hours at no charge.
When the union came to Stern [the company], the union
organizers came with a bag full of promises including more
money, better wages and better working conditions. In fact,
the union organizers even visited employees at home without
an invitation. When Stem employees recently asked the un-
ion to put their promises in writing, the union organizer
refused!
Like I have said all along, I CANNOT make any promises.
However, you can see now that the big difference between
me and the union is that:
I DON’T LIE!!
5. The 25-hour speech
It is undisputed that, on November 3, 2015, a second large
group meeting (known as the 25th Hour Speech) was held in the
large conference room. Approximately 35 to 50 employees at-
tended. Stern, Pasalagua, and Penn were also present.
It is also undisputed that, during the meeting, Stern read the
following statement to employees:
If there is one good thing that came out of all of this, it is that
we now know that the lines of communication are open without
having a third party between us.
. . .
I appreciate all of your comments and concerns that you have
voluntarily shared with me during this campaign. All of you
know that l cannot legally make any promises. One thing I can
tell you, however, is that I hear you loud and clear.
As you know by now it does not matter what the union prom-
ises you. Those promises cannot come true if I do not agree.
The law only requires that 1 bargain in good faith. That does
not mean that I have to agree to any proposal the union puts on
the table.
Also, there is no time limit placed on negotiations. Negotiations
can last two months, six months or even years. Even the out-
come of negotiations cannot be guaranteed. As a result, you can
end up with more, the same or less than what you have now.
Last week, a union organizer denied that they have made you
promises. They said they have not been visiting your homes.
All of you know very well that this is absolutely untrue.
How can you trust the union when they are not being honest
with you?
. . .

41 GC Exh. 13.
42 GC Exh. 12(a).
After my meetings with you, it became clear to me that my
management team has done a poor job communicating your is-
sues and concerns to me. I assumed that everything was just
fine when I asked how you were doing and you responded, “we
are okay.”
I understand now that many of you did not want to jump the
chain of command. I now have a clear picture that I need to be
in more direct contact with all of you. Like I said before, I can-
not promise you anything but I can guarantee that I am not a
liar.
In fact, unlike the union that refused to sign the guarantees you
provided to them, I took the initiative to put together the fol-
lowing.41
At that point, Stern read a list of guarantees, which basically
told employees there would be no reprisals against them regard-
less of their decision to unionize.42 Stern read the speech in Eng-
lish while Pasalagua translated it in Spanish.43
At end of the meeting, employees received copies of the
signed and notarized guarantees in English and Spanish.44 It is
undisputed that neither Stern nor Pasalagua threatened to
close/sell the Company if employees voted for the Union or
promised increased wages if employees voted against the Union
during this meeting.
6. Lack of union support
It is undisputed that, as the Union and Respondent began pre-
senting their respective positions about the organizing campaign,
support for the Union declined. The issue is what were the rea-
sons behind the declining support?
Although Rosas testified that, prior to the election, approxi-
mately 15-20 employees participated on the Union’s organizing
committee, yet one week before the election, the organizing
committee stopped participating and only four to five employees
attended union meetings, I credit Chacon’s testimony that it was
not solely due to Respondent’s anti-union campaign. In fact, af-
ter attending several Union meetings, Chacon decided on her
own to stop supporting the Union because she no longer saw the
benefit of unionizing, and she became frustrated because the Un-
ion appeared to be incessantly trying to talk to employees at
home and at work. Despite the Union’s conduct, Chacon tried
contacting organizers Ricardo Gomez (Gomez) and Ponciano
Hernandez (Hernandez) several times to have her concerns ad-
dressed but neither of them ever responded to her inquiries.
Testimonial evidence also reveals that, during one of her small
group meetings she attended with Duran and Beltran in Novem-
ber 2015, Chacon, on her own, told Pasalagua she no longer sup-
ported the Union. She then gave Pasalagua a written statement
to that effect. While there was considerable testimony concern-
ing who or what motivated Chacon to give her statement to Pasa-
lagua, I credit Chacon that she simply reiterated to Pasalagua
what she previously told Gomez, before the scheduled election,
that she was no longer interested in continuing with the Union
because union organizers were not responding to her inquiries.
Chacon confirmed she gave her statement to Pasalagua of her
43 GC Exh. 12(b).
44 GC Exh. 12(a)-(b).
STERN PRODUCE CO. 21
own volition.
Duran also stopped attending union meetings on her own ac-
cord and no one from Respondent ever told her to stop attending
meetings. In fact, even Beltran felt pressure to make a decision
about the Union from the Union (to support representation) and
his coworkers (not to support the Union). Although I did not find
Beltran particularly credible concerning other incidents in this
case, other credible testimonial evidence corroborated his testi-
mony in this regard.45
7. Election postponed
It is undisputed that, on November 3, 2015, 2 days before the
scheduled election, the Union filed the first ULP charge in this
case (28–CA–163215). The charge challenged the various al-
leged coercive statements employees reported being told by
Pasalagua, Penn, and Stern. That same day, Region 28 issued an
Order postponing the election pending an investigation into the
above ULP charge.
8. Pasalagua/Penn read ULP charge to employees
It is undisputed that on November 4, 2015, the day after Re-
gion 28 postponed the election, Pasalagua held group meetings
with Respondent’s warehouse employees where he told them
that the election was canceled because the Union filed its first
ULP charge against Respondent. Pasalagua admitted that he read
the actual ULP charge verbatim to employees.
It is also undisputed, and Pasalagua admitted that, he read ver-
batim the allegations listed in the Region’s December 3, 2015
letter requesting certain evidence from Respondent.46 According
to Pasalagua, he detailed, one by one, each allegation claimed by
the Union and gave his own explanation regarding what each al-
legation meant. Pasalagua also read the individual employee’s
names who filed each allegation against Respondent. Pasalagua
also admitted reading three or four of the allegations in Spanish
although he declined to translate the allegations in writing at that
time.
It is further undisputed that, on December 3 or 4, 2015, Penn
returned to Respondent’s facility and read/updated the drivers on
the Union’s allegations. She also read the allegations as they
were detailed in the Region’s letter requesting evidence from Re-
spondent which included naming the individual employees who
filed the charges against Respondent.47 She read the allegations
in English.
Pasalagua also held five or six one-on-one meetings with em-
ployees to discuss the Union’s ULP charge against Respondent.
Duran confirmed that Pasalagua met with her and read the ULP
allegations to her verbatim. According to Duran, not only did
Pasalagua verbally read and translate the allegations into Span-
ish, he gave her a written translation of the charges with employ-
ees’ names (driver Uvaldo Ponce, Ruiz, and Rosas) on them.
Beltran also met with Pasalagua individually where he told
Beltran that the ULP allegations were ridiculous and the Union
would not be able to proceed. According to Beltran, Pasalagua
told him that the Union’s motive in filing the charge was to con-
sume time and prevent Stern from carrying out the changes he

45 See Daikichi Sushi, supra (credibility findings need not be all or
nothing propositions and it is common for a fact finder to credit some,
but not all, of a witness’ testimony).
promised. At that point, Pasalagua told Beltran that he knew
Beltran had been called to interview with the Board and told him
to give his statement so long as he told the truth. Pasalagua
warned Beltran that if he did not tell the truth, Respondent could
file charges against him. Toward the end of the meeting, Pasa-
lagua asked Beltran if he was standing firm with the company
then questioned his support of Respondent.
As I previously noted, while I did not find Beltran credible for
the reasons outlined above, because his testimony was corrobo-
rated by Duran, who I find credible, I find that Pasalagua made
the statements attributed to him.
It is undisputed that, on December 18, 2015, the Union filed a
second ULP charge against Respondent (28–CA–166351). It is
undisputed that Pasalagua returned to the facility after this sec-
ond ULP charge was filed and again read the charge form to
warehouse employees.
It is further undisputed that, in January 2016, Pasalagua con-
ducted approximately seven or eight meetings with warehouse
employees to inform them of the Region’s January 8, 2016, letter
requesting evidence. He admitted sharing the information with
“pretty much 90 percent of the employees in the warehouse.”
Pasalagua read each allegation contained in the letter in Spanish
and told employees the identities of the employees named in the
letter. He also admitted to providing Spanish-translated copies
to employees who requested one.
I also credit Jose Pacheco who testified that, around January
5, 2016, he attended a small group meeting with Pasalagua where
Pasalagua told employees that the Union did not have much
money to continue filing charges against Respondent.
It is further undisputed that, around mid-January 2016, Pasa-
lagua again met with employees at the facility. During this meet-
ing, Pasalagua showed employees, including Pacheco, the
charges against Respondent and told them that the charges were
not valid. According to Pacheco, Pasalagua then told employees
that if employees testified concerning the charges, they would be
lying, giving false testimony and could be fined $5000 or given
5 years in jail. I credit Pacheco’s testimony regarding this inci-
dent as I previously found that his demeanor, even temperament,
and mannerisms on the stand made him believable.
In another meeting with Pacheco and warehouse employee
Reynalda Prieto Subias, (Subias), Pasalagua told the pair that
there was no basis for the Union’s charges and that the charges
were not credible. Pasalagua then reiterated that if Pacheco or
Subias testified before a judge, they would be lying. Again, for
the reasons stated above, I find Pacheco’s testimony credible.
Accordingly, I find that Pasalagua made the statements attributed
to him by Pacheco concerning the Union’s second charge and
employees’ testimony to the Board.
9. Interfering with Board investigation
Based on the testimony of Juarez and Pacheco, I find the fol-
lowing facts:
In early January 2016, Juarez returned from his route and he
ran into Transportation Manager Tarango. Tarango asked Juarez
to come to the office to speak with Pasalagua. Juarez obliged.
46 GC Exh. 19.
47 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
Once Juarez arrived in the office, Pasalagua told Juarez that
Pasalagua heard that Juarez would be giving a statement to the
Board. Juarez confirmed what Pasalagua heard. At that point,
Pasalagua told Juarez that it was not necessary for him to give
his statement to the Board since the Board would be asking the
same questions as Respondent. Pasalagua then gave Juarez a
copy of the Region’s December 5, 2015 letter that listed the Un-
ion’s allegations and requested evidence from Respondent. At
some point, Juarez asked Pasalagua how he knew Juarez was
giving a Board statement but Pasalagua did not answer. How-
ever, Juarez admitted that Pasalagua told him it was his decision
to give his statement to the Board.
I also credit Pacheco who confirmed that, around mid-January
2016, Pasalagua showed employees the ULP allegations, told
employees that the Board charges were invalid, and if employees
testified concerning those charges, they would be lying, provid-
ing false testimony, and they could be fined $5000 and given 5
years in jail. While Pasalagua denied the statements attributed to
him, for the reasons previously outlined above, I discredit Pasa-
lagua and credit Juarez’ and Pacheco’s testimony.
10. The gift card program
Based on the documentary evidence and the testimony of Re-
spondent’s advisor, Tina Leese, I find the following facts:
In late 2014, Leese, on behalf of Respondent, created a gift
card program to reward drivers who received 100 percent on
their Department of Transportation (DOT) vehicle inspection re-
port.48 These impromptu DOT inspections were required in the
produce delivery industry and were necessary to ensure delivery
trucks met DOT requirements.
Leese created the gift card program to reward drivers who
were able to meet Respondent’s deadlines despite being pulled
over and kept on the side of the road for extended periods by
DOT inspectors.
With Stern’s approval, in 2014, Respondent began providing
gift cards to local restaurants for deserving drivers who made
100 percent on their DOT inspection reports and still managed
to deliver Respondent’s produce on time. Once the program be-
gan, Leese kept a record of rewards given to employees.49
Although Driver Uvaldo Ponce (Ponce) initially testified that,
immediately prior to the scheduled election, he received his first
ever $50-Olive Garden gift card from Leese for passing a DOT
inspection but had never received a gift card in the past, he sub-
sequently wavered, admitting that he could not recall whether he
received the gift card before or after the scheduled election. As
such, I do not find Ponce’s testimony particularly credible.
I credit Leese’s testimony, which is supported by the docu-
mentary evidence, that she gave gift cards to other drivers in
2014 and 2015 (well in advance of the union campaign) based
solely on their passing their DOT inspections.

48 Tr. 988.
49 Tr. 988–989, 995.
50 Tr. 127, 131; see also Tr. 999–1000; see also GC Exh. 11.
51 Tr. 999–1000.
52 Tr. 129.
53 Tr. 135.
11. Respondent’s open door policy
Prior to the scheduled election, Respondent maintained an
open door practice/policy in its employee handbook. The hand-
book containing the practice/policy was distributed to employees
when they onboard with Respondent. The policy has been in
practice for many years even prior to when Stern became presi-
dent of the company.50
The policy essentially allows any employee who has any con-
cerns about anything, whether personal or financial, involving
personnel issues, or even an interpersonal conflict with a
coworker, the ability to speak directly to their manager/supervi-
sor or Stern himself. Stern’s telephone number was listed in the
handbook and employees were given direct access to Stern to
discuss any issues affecting them.51
In making the above findings, I credit Stern’s uncontroverted
testimony that, well prior to the union campaign, he often walked
around the warehouse, greeted employees, and asked them how
things were going at work.52 Stern also confirmed that, both be-
fore and after the union petition was filed, employees often ap-
proached him about personnel issues, requested days off, asked
for additional work hours and personal loans when they ran into
financial difficulties, and generally voiced their concerns to him
about their terms and conditions of employment.53 Leese also
witnessed employees talking directly to Stern about issues,
thereby taking advantage of the open door practice/policy. I find
her testimony credible in this regard.
I also credit Stern when he confirmed that, after the Union pe-
tition was filed, employees approached him on their own accord
with questions about the election process.54 Although Stern was
aware that some employees were discussing the policy amongst
themselves, he admitted that he never specifically discussed the
policy with any employee following the filing of the petition.55
Nevertheless, despite that various employees testified to being
unaware of the open door policy until the union’s organizing
campaign, I find that employees utilized the policy by going di-
rectly to Stern to speak with him about various professional or
personal issues they had.
12. The July 8, 2016 letter
It is undisputed that, on June 22, 2016, the Union sent a letter
to Stern seeking to confirm rumors the Union heard from em-
ployees that Stern promised certain employees a $2-per-hour
wage increase.56 In the letter, the Union advised Stern that it
would not oppose the $2-per-hour wage increase, and if Stern
provided such an increase, they would not file any ULP charges
against Respondent.
Stern, however, never promised to provide such an increase to
employees.57 As such, on July 8, 2016, Stern sent a letter to all
employees updating them on the status of the election and ad-
vised employees that the Union filed additional ULP charges
against Respondent.58
With respect to the rumored $2-per-hour wage increase, Stern
54 Tr. 130.
55 Tr. 127.
56 GC Exh. 17.
57 Tr. 156.
58 GC Exh. 16.
STERN PRODUCE CO. 23
told employees, “The union has filed more and more charges; as
long as those charges are still being investigated by the govern-
ment, Stern will comply with its legal obligation to continue the
“Status Quo” regarding your wages, benefits or working condi-
tions.”59 The letter was distributed to employees in English and
Spanish.60
In making the above findings, I credit Stern’s testimony and
rely solely on the above-referenced letters which speak for them-
selves. Accordingly, I do not find that Stern or his letter to em-
ployees promised anyone a $2-per-hour wage increase as alleged
in the complaint.
Discussion and Analysis
The record in this case clearly supports a finding that Re-
spondent, through Stern and/or Respondent’s agents Pasalagua
and Penn, committed a series of 8(a)(1) violations in response to
the Union’s organizing campaign and employees’ lawful pursuit
of their union activities.
A. The 8(a)(1) Interrogation Violations
The General Counsel asserts that Stern and/or Respondent’s
agents, Pasalagua and Penn, violated Section 8(a)(1) of the Act
by interrogating Ruiz, Rosas, Mancera, and Beltran about their
union membership/activities/sympathies and by interrogating
Pacheco and Juarez about their participation in the Board inves-
tigation.
Interrogating an employee about his/her union support/sym-
pathies violates Section 8(a)(1) of the Act if, under all the cir-
cumstances, the questions reasonably tend to restrain, coerce, or
interfere with Section 7 rights.61 Factors that may be considered
to determine whether an alleged interrogation is unlawful in-
clude: (1) the identity of the questioner and his/her status in the
employer’s hierarchy, (2) the place and method of questioning,
(3) any background of the employer’s hostility, and (4) the nature
of the information sought. 62 The Board also considers whether
the employee is an open union supporter. 63 While not an ex-
haustive list that should not be mechanically applied, the afore-
mentioned factors, known as the Bourne factors, are intended to
guide the fact-finder in determining, as a whole, whether the
questioning at issue tended to restrain, coerce, or interfere with
an employee’s Section 7 rights. The General Counsel bears the
ultimate burden of proving Respondent’s conduct interfered, re-
strained and/or coerced employees from exercising their Section
7 rights.64
In complaint paragraph 5(a)(i), the General Counsel alleges
that Respondent, through Stern and Pasalagua, unlawfully inter-
rogated drivers Rosas and Ruiz about whether they supported the
Union. I agree.
Applying the Bourne factors, Stern is the president of the
Company, and Pasalagua, an agent of Respondent, was specifi-
cally hired by Stern to speak on Stern’s behalf, to convince

59 Id.
60 Id. at (a)-(b).
61 Rossmore House, 269 NLRB 1176, 1177–1178 (1984), enfd. 760
F.2d 1006 (9th Cir. 1985) (citing Bourne v. NLRB, 332 F.2d 47 (2d Cir.
1964).
62 Scheid Electric, 355 NLRB 160, 160 (2010), see also Manorcare
Health Services–Easton, 356 NLRB 202, 218 (2010); Westwood Health
employees not to vote for the Union. Second, the nature of the
question itself—i.e., whether Ruiz and Rosas would vote for the
Union, is inherently coercive. In fact, Ruiz was twice interro-
gated about his union sympathies. Moreover, the location of the
questioning; first, alone with Stern and Pasalagua in a small con-
ference room; second, accompanied by his coworker Rosas in
the same conference room, heightens the intimidating nature of
the interrogation.
In addition, the context of Stern’s and Pasalagua’s interroga-
tion occurred merely weeks before employees were scheduled to
vote, and at a time when Stern and Pasalagua were trying to keep
Respondent a union-free environment. As such, their question-
ing of Ruiz and Rosas was even more coercive. While Ruiz, to
his credit, told Stern and Pasalagua that he was unsure how he
would vote, I find Ruiz’ response indicative of how threatened
he was with Stern’s and Pasalagua’s inquiries. On the whole, I
find Stern’s and Pasalagua’s actions violated Section 8(a)(1) of
the Act as their conduct would reasonably be viewed as tending
to restrain and/or interfere with Ruiz and Rosas exercising their
Section 7 rights.
Complaint paragraph 5(j)(i) avers that Respondent, through
Stern, violated the Act when he interrogated Mancera about his
union membership, activites and/or sympathies. However, under
the circumstances, I do not find that Stern unlawfully questioned
Mancera in his first two one-on-one meetings.
Specifically, in the first meeting, the record demonstrates that
Pasalagua met with Mancera and approximately 8 to 10 other
warehouse workers in a conference room. As such, nothing about
the location of the meeting or the fact that Mancera was accom-
panied by several of his coworkers suggests intimidation. More-
over, record evidence reveals that Pasalagua introduced himself,
explained who he was and why he called the meeting then dis-
cussed the advantages and disadvantages of unionizing. Nothing
about the context or content of the meeting is inherently coer-
cive. Furthermore, there is no evidence that Pasalagua singled
out Mancera or specifically inquired of Mancera’s union mem-
bership, activities/sympathies.
Similarly, Mancera’s second meeting with Stern and Pasa-
lagua would not reasonably be viewed as an unlawful interroga-
tion. Although I find the location of Mancera’s second meet-
ing—i.e., in a small conference room by himself—suspect, the
questioning was not inherently coercive. In fact, the record re-
veals that Stern asked Mancera how things were going with
Mancera at work, told Mancera that Stern thought he was a
“good worker,” that Stern hoped everything was going well for
him and asked Mancera if he would give Stern a vote of confi-
dence. While this exchange proves, in my view, that Stern un-
lawfully promised Mancera a benefit in exchange for voting
against unionization, I find no clear evidence that Stern or Pasa-
lagua unlawfully interrogated Mancera as to his union member-
ship, activities or sympathies. Accordingly, I recommend
Care Center, 330 NLRB 935, 939 (2000); Evergreen America Corp., 348
NLRB 178, 208 (2006).
63 See, e.g., Gardner Engineering, 313 NLRB 755, 755 (1994), enfd.
as modified on other grounds 115 F.3d 636 (9th Cir. 1997).
64 29 U.S.C. § 160(c) (violations of the Act are adjudicated “upon the
preponderance of the testimony” taken by NLRB).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
dismissing complaint paragraph (j)(i).
Next, complaint paragraph 5(i)(i) asserts that Pasalagua un-
lawfully interrogated Beltran about his union activities. How-
ever, because I did not find Beltran credible as a whole, I con-
clude that the General Counsel failed to prove that Pasalagua vi-
olated the Act as alleged.65 As stated above in my factual find-
ings, Beltran often gave inconsistent, contradictory testimony
that made his version of events less than believable. For exam-
ple, although Beltran asserted that he was pressured by Respond-
ent to vote against the Union, he admitted he was pressured by
the Union (to vote for the Union) and his coworkers to vote
for/against the Union. Most importantly, both warehouse em-
ployees Chacon and Duran, who accompanied Beltran at every
meeting with Pasalagua, failed to corroborate any of the alleged
coercive statements Beltran claimed Pasalagua made.66
Most importantly, Beltran violated my sequestration order by
contacting Chacon to apologize to her for lying about her appear-
ance at some of his meetings with Pasalagua. Beltran’s actions
in this regard called his entire testimony into question and made
him wholly incredible as a witness. Accordingly, Respondent did
not unlawfully interrogate Beltran, and as such, did not violate
the Act with respect to Beltran.
Lastly, in complaint paragraphs 5(r)(i) and (s)(iii), the General
Counsel claims that Respondent, through Pasalagua, unlawfully
interrogated Juarez and Pacheco about their participation in the
Board’s investigation of the Union’s ULP charge. I agree.
Again, the credited testimony shows that Pasalagua, an agent
of Respondent, attempted to convince Juarez not to provide his
statement to the Board during its investigation of the Union’s
ULP charges. As such, the individual interrogating Juarez (Pasa-
lagua) coupled with the nature of the questioning is highly coer-
cive. Moreover, the location of the interrogation—alone in a con-
ference room, heightens the coercive nature of the situation. In
addition, the context of Pasalagua’s questioning—occurring on
the eve of Juarez’s Board interview—makes the interrogation
even more intimidating.
Similarly, I conclude that Pasalagua’s statements to Pacheco
(and others) regarding what would happen if they testified before
the Board was equally coercive. In fact, Pasalagua threatened
Pacheco (and others) that if they gave their statements to the
Board, they would be lying, providing false testimony and could
be fined. Despite that there were several employees present, I
conclude that the nature and content of Pasalagua’s statement,
which constitutes a threat, occurring on the eve of the Board’s
investigation, was inherently coercive.
Accordingly, Respondent violated the Act when Pasalagua in-
terrogated Juarez and Pacheco about their participation in the
Board’s investigation.
B. Section 8(a)(1) Creating the Impression of
Surveillance Violations
The General Counsel next asserts that Respondent, through

65 See Sec. B(3)(a), supra.
66 Id.
67 See Broadway, 267 NLRB 385, 400 (1983) (citing United States
Steel Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982)).
68 See Fred’k Wallace & Son, Inc., 331 NLRB 914 (2000).
69 See Fred’k Wallace & Son, Inc., 331 NLRB at 915.
Pasalagua and Penn, on various but separate occasions, violated
the Act by creating the impression among employees that their
union activities were under surveillance.
The test for determining whether an employer unlawfully cre-
ates the impression of surveillance is an objective one and in-
volves the determination of whether the employer’s conduct, un-
der the circumstances, was such that would tend to interfere with,
restrain, or coerce employees in the exercise of the rights guar-
anteed under Section 7 of the Act.67 Specifically, the trier of fact
must view the evidence on the whole and determine whether the
employee would reasonably assume from the employer’s con-
duct and/or statements that their union activities had been placed
under surveillance.68
Although an employer’s mere observation of open, public un-
ion activity on or near its property will not constitute unlawful
surveillance, the employer cannot “do something ‘out of the or-
dinary’ to give employees the impression that it is engaging in
surveillance of their protected activities.”69 The Board’s analysis
thus focuses on whether the observations were ordinary or rep-
resented unusual behavior.70
Similarly, the test for whether an employer’s statement creates
an impression of surveillance is whether the employee would
reasonably assume from the statement that his/her union activi-
ties were under surveillance.71 The Board has held that a super-
visor does not create an impression of surveillance by a mere
statement that he is aware of a rumor about union activities “so
long as there is no evidence indicating that the respondent could
only have learned of the rumor through surveillance.”72 “Since a
rumor is, by definition, talk or opinion widely disseminated with
no discernible source, employees could not reasonably assume
from a respondent's knowledge of such a rumor, without more,
that their union activities had been placed under surveillance.”73
Complaint paragraph 5(b)(i) (A-B) asserts that Respondent,
through Penn, unlawfully created an impression among employ-
ees that their union activities were under surveillance when Penn
told employees, in a recorded conversation, that she knew that
Union representatives were at Respondent’s facilities. I disagree.
Specifically, I do not find sufficient evidence to explain that
Penn’s observations and knowledge of the union representative’s
activities were out of the ordinary. In fact, I could posit that Penn
may have been at Respondent’s facility, walking out and casually
observed Union representatives meeting with employees. Or, an
employee could have told Penn or Penn could have learned
through rumor that union representatives were present at Re-
spondent’s facility prior to her statement being recorded. Either
way, the General Counsel failed to present credible evidence
showing Penn did something unusual to learn of the union repre-
sentative’s presence at Respondent’s facility. Accordingly, I con-
clude that Respondent did not violate Section 8(a)(1) of the Act
as alleged; and as such, dismiss this complaint allegation.
Similarly, Respondent did not violate the Act by creating an
70 Aladdin Gaming, LLC, 345 NLRB 585 (2005), rev. denied 515 F.3d
942 (9th Cir. 2008).
71 United Charter Service, 306 NLRB 150 (1992).
72 South Shore Hospital, 229 NLRB 363 (1977), citing G. C. Murphy
Co., 217 NLRB 34, 36 (1975).
73 Id.
STERN PRODUCE CO. 25
impression of surveilling employees regarding its knowledge
that Union organizers visited employees at home.74 Rather, the
record reveals that it was common knowledge among employees
(through rumors and employees telling Respondent) that union
organizers visited employees at home. In fact, Union Organizer
McDade testified about visiting employees’ homes and ware-
house employee Chacon testified that she complained to Re-
spondent about the union representatives visits to employees’
homes. There is no evidence that Respondent, through Stern,
Pasalagua, or Penn, engaged in any unusual behavior or did
“something out of the ordinary” for employees to reasonably
conclude that Respondent was monitoring organizers’ visits to
their homes.
Respondent, through Stern and/or Pasalagua, also did not cre-
ate an impression of surveillance when they told drivers Ruiz and
Rosas that a majority of employees no longer supported the Un-
ion but only a small group of employees supported the Union.75
Again, record evidence reveals that Chacon told Pasalagua that
she no longer supported the Union. Duran also told Pasalagua
that she stopped attending union meetings. Moreover, there was
no evidence presented that Stern and/or Pasalagua engaged in
any unusual conduct to determine the level of union support (or
lack thereof) among employees. In fact, Respondent could have
learned, through rumors at the facility or casually observing at-
tendance at union meetings that support was waning for the Un-
ion. Viewing the record as a whole, the General Counsel has
failed to present sufficient evidence that Respondent’s
knowledge of the level of union support came from anything
other than ordinary observations.
However, I conclude that Respondent, through Pasalagua, cre-
ated the impression of surveillance by suggesting that he knew
employees were participating in the Board investigation.76 Here,
unlike the previous allegations, Pasalagua did something “out of
the ordinary.” Specifically, Pasalagua took the unusual step of
reading the Union’s ULP charge(s) to employees, and in so do-
ing, he learned which employees would likely be interviewed by
the Board during its investigation. Not only that, as stated pre-
viously in this decision, he queried employees about their partic-
ipation in the Board’s investigation. In light of the circumstances
as a whole, I find that Pasalagua’s conduct constituted more than
“mere observation,” but “represented unusual behavior” on his
part that would reasonably lead Juarez (and others) to conclude
that their Union activities were under surveillance.
Respondent, through Pasalagua, also created the impression of
surveillance when he told Mancera he was “riling up employ-
ees.”77 Specifically, as stated I previously, I find Pasalagua’s
statement particularly troubling considering the timing, location
and context of when the statement occurred. Moreover, Pasa-
lagua is an agent acting on behalf of Stern himself whose sole
purpose is to convince employees to vote against the Union.
More importantly, Pasalagua had no legitimate reason to

74 See Consol. Compl. ¶5(h).
75 See GC 1(i) at ¶5(i)(ii).
76 See GC Exh. 1(i) at ¶5(r)(ii).
77 See GC Exh. 1(l) at ¶5(u)(i).
78 Smithers Tire & Automotive Testing of Texas, 308 NLRB 72 (1992).
79 Id.; see also Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st
Cir. 1981) (inquiry under Sec. 8(a)(1) is an objective one which
question Mancera about his alleged conduct with his fellow em-
ployees. In fact, the evidence supports that Mancera was not ril-
ing up anyone. Even if Pasalagua heard through rumor or casu-
ally observed Mancera “riling up employees,” in this case, Pasa-
lagua did something more. In fact, after Mancera denied Pasa-
lagua’s accucations, Pasalagua told Mancera that he may lose a
promotion opportunity if he refused to calm down his rhetoric.
Moreover, even after Mancera denied Pasalagua’s accusations a
second time and demanded to know where Pasalagua learned
about the rumors concerning him, Pasalagua refused to respond.
Viewing the totality of the circumstances, Pasalagua’s actions
represented something “out of the ordinary” which would rea-
sonably leave Mancera (or anyone else) with the impression that
his Union activities were under surveillance. Accordingly, I
conclude that Respondent violated the Act as alleged in para-
graph 5(u)(i) of the complaint.
C. The Section 8(a)(1) Threatening Employees for Engaging in
Union Activities Violations
The General Counsel next asserts that Respondent, by Pasa-
lagua and Penn, violated the Act by threatening employees in
various ways for engaging in union activities.
In assessing whether a remark constitutes a threat, the appro-
priate test is “whether the remark can reasonably be interpreted
by the employee as a threat.”78 The actual intent of the speaker
or the effect on the listener is immaterial.79 The “threat in ques-
tion need not be explicit if the language used by the employer or
his representative can reasonably be construed as threatening.”80
The Board considers the totality of the circumstances in as-
sessing the reasonable tendency of an ambiguous statement as a
veiled threat to coerce.81
Determining whether an ambiguous statement is an illegal
threat versus an opinion about the possible consequences of un-
ionization has proven difficult. The U.S. Supreme Court de-
scribed the balance between the employer’s free speech rights as
codified by Section 8(c) of the Act and employee’s Section 7
rights in NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).
In Gissel, the Court stated:
It is well settled that an employer is free to communicate to his
employees any of [its] general views about unionism or any of
[its] specific views about a particular union so long as the com-
munications do not contain a “threat of reprisal or force or
promise of benefit.” [The employer] may even make a predic-
tion as to the precise effect [it] believes unionization will have
on the company. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to convey an
employer’s belief as to demonstrably probable consequences
beyond [its] control.82
An employer need not remain neutral during a union cam-
paign, and Section 8(c) permits the employer to campaign
examines whether the employer’s actions would tend to coerce a reason-
able employee).
80 NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970).
81 KSM Industries, 336 NLRB 133, 133 (2001).
82 See also National Propane Partners, L.P., 337 NLRB 1006, 1017
(2002).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
against the union and present an alternate view, ensuring that
employees are fully informed about their choice.83 However, em-
ployers must present their view without threatening employees.
As the Court noted in Gissel, “the Board has often found that
employees, who are particularly sensitive to rumors of plant
closings, take such hints as coercive threats rather than honest
forecasts.”84 In balancing these competing interests, the Board
has held that threats of job loss or loss of hours in retaliation for
engaging in union activities violate Section 8(a)(1) of the Act.85
Likewise, threats not to promote employees due to their pro-
tected activities also violate the Act.86
1. Threats of sale, closure or bankruptcy
In complaint paragraphs 5(c)(i) and (d)(i), the General Coun-
sel asserts that Respondent, through Pasalagua, in various small
group meetings, threatened drivers Pacheco, Loc, and/or Beltran
by telling them, during an organizing campaign, that Respondent
could sell/close its business which would cause employees to
lose their jobs. Complaint paragraph 5(o)(i) alleges that, during
another small group meeting in the midst of the organizing drive,
Pasalagua threatened driver Juarez that Respondent may go
bankrupt. Based on the credited evidence, I agree with counsel
for the General Counsel that, by stating, on the eve of the elec-
tion and without any objective evidence, that Stern could
sell/close the facility, Pasalagua’s obvious implication was that
Pacheo’s, Loc’s, and/or Beltran’s support for the Union
would result in negative consequences.
Similarly, Pasalagua’s comment to Juarez, on the eve of the
union election, that companies that had unions do not retain con-
tracts and, therefore, go bankrupt, implies, without any objective
factual basis for his statement, that such a scenario would happen
to Respondent if Juarez voted for the Union. Unlike cases where
the Board held that Respondent’s statements could be construed
as “predictions” about the effects of unionization, in Pasalagua’s
case, his “predictions” were not based on objective facts from
previous strikes or bankruptcies to which he was involved. Ra-
ther, Pasalagua’s remarks would reasonably lead an employee to
conclude that strikes and/or Respondent’s bankruptcy are inevi-
table if employees supported the union.87 Clearly, the Supreme
Court found such statements t h a t equate union activities to
bankruptcies and/or facility closings amount to unlawful
threats.88 Accordingly, I conclude that Respondent violated Sec-
tion 8(a)(1) of the Act as alleged in the complaint.

83 See, e.g., Steam Press Holdings, Inc. v. Hawaii Teamsters, 302 F.3d
998 (9th Cir. 2002).
84 Gissel, supra at 619–620 (footnotes omitted).
85 United/Bender Exposition Service, 293 NLRB 728, 732 (1989);
Middletown Hospital Assn., 282 NLRB 541 (1986); Air Express Interna-
tional, 281 NLRB 932 (1986); Fiber Glass Systems, 278 NLRB 1255
(1986); Foundation of California State University, 255 NLRB 202
(1981); Louis Gallet, Inc., 247 NLRB 63, 63 at fn. 1 (1980).
86 QSI, Inc., 346 NLRB 1117, 1118 (2006); Hospital Shared Services,
Inc., 330 NLRB 317, 318 (1999); Prudential Insurance Co. of America,
317 NLRB 357 (1995); Marmon Transmotive, 219 NLRB 102, 113–114
(1975); Ford Motor Co., 251 NLRB 413, 422 (1980).
87 See Stanadyne Automotive Corp., 345 NLRB 85, 89–90 (2005)
(employer did not violate the Act when it told employees that, hypothet-
ically, if the parties’ negotiations resulted in an impasse, based upon pre-
vious union strikes, the effects of unionizing could result in the
2. Threats of strike or lockout
Similarly, I find that Respondent, via Penn, violated the Act
when she told employees, in a recorded statement during a large
group meeting that if the Union rejected Respondent’s final of-
fer, a strike vote “will be taken,” and . . . if employees voted to
strike, Stern could use his leverage and “lock the door on all of
you . . . to make sure the Union agrees to his terms.” Again,
Penn’s statements are devoid of objective facts based upon spe-
cific past strike experiences. Rather, she conveyed to employees
that strikes are inevitable, and as such, the Board has found such
statements unlawful.89 Accordingly, Respondent violated Sec-
tion 8(a)(1) of the Act as alleged in paragraph 5(b)(ii) of the com-
plaint.
3. Threats of loss of benefits and hours
In complaint paragraph 5(b)(iii), the General Counsel argues
that Respondent, through Penn, violated the Act when, during a
large group meeting, she impliedly threatened employees with a
loss of benefits by saying, “Look at all the stuff he has done for
many of you in here. Many of you were given a second chance
by him at one point or another—you’ve gone to him and asked
for loans, asked for him to change your schedule . . . now he is
going to be in a situation where he is going to bargain tough
against you.” In reviewing the record, I agree with counsel for
the General Counsel as the Board has found these types of state-
ments unlawful.90
Similarly, I find that Respondent, via Pasalagua, violated the
Act when he threatened Pacheco and others by stating that if the
Union came onboard, Stern could reduce employees’ work hours
in order to be able to give them a raise. Specifically, the credited
evidence shows that, in threatening Pacheco with reduced work
hours if employees voted for the Union, particularly given that
the discussion was held in a small conference room with few
employees present, Pasalagua’s obvious implication was that
Pacheco’s support for the Union would result in negative con-
sequences. The Board has found that these types of statements
amount to unlawful threats. Accordingly, Respondent violated
the Act as alleged in complaint paragraph 5(g).
I also find that Respondent violated the Act when Pasalagua
told Mancera and several other night shift employees about their
inability to talk/deal with Stern directly if they unionized.91
While Pasalagua’s statement is an accurate “prediction as to the
precise effect . . . unionization will have”92 on Respondent, vis-
possibility of union strikes); Cf AP Automotive Systems, Inc., 333
NLRB 581 (2001) (employer violated the Act where its speech con-
veyed only the inevitability of a strike by stating: “the scenario . . .
[that] the [union] would inevitably make exorbitant demands, . . . the
[e]mployer would not agree to these demands, a strike would ensue,
and the plant would close.”) .
88 Gissel, supra at 619–620 (footnotes omitted).
89 AP Automotive Systems, Inc., supra, Gold Kist, Inc., 341 NLRB
1040, 1040–1042 (2004).
90 See Reeves Bros., Inc., 320 NLRB 1082, 1083 (threats made in a
captive audience meeting to reduce hours amounted to an unlawful
veiled threat of repercussions if employees selected the union).
91 GC Exh. 1(i) at ¶5(k).
92 Gissel, supra at 619.
STERN PRODUCE CO. 27
à-vis—employees would have to negotiate with Stern through
their union versus directly with Stern—I nevertheless agree with
counsel for the General Counsel’s argument that employees
hearing Pasalagua’s comment, made after numerous other coer-
cive statements to employees on the eve of the scheduled elec-
tion, would reasonably believe that he was impliedly threatening
them that if employees unionize, they will give up the benefit of
dealing directly with Stern.
The credited testimony also reveals that Pasalagua threatened
Pacheco, his coworkers, and Beltran when Pasalagua told them
that that they would be fined and given jail time if they testified
untruthfully during the Board investigation. Clearly, Pasa-
lagua’s communications had no basis in fact and was not care-
fully phrased . . . “to convey an employer’s belief as to demon-
strably probable consequences beyond [its] control.”93 Rather, I
find his comments tantamount to a threat of reprisal (i.e., fines
and jail time) if employees exercise their Section 7 rights (i.e.,
participate in the Board’s investigation of the Union’s ULP
charges against Respondent). Accordingly, Respondent vio-
lated the Act as alleged in complaint paragraphs 5(k), (s)(i) and
5(t).
In complaint paragraph 5(l), the General Counsel alleges that
Respondent threatened employees that it would engage in dila-
tory bargaining tactics when Pasalagua purportedly told Beltran
and his coworkers that Stern “would have the last word” in bar-
gaining. Although counsel for the General Counsel primarily re-
lied on Beltran’s testimony concerning this incident, I did not
find him credible. Moreover, Chacon and Duran, whom Beltran
claimed were present in all of his meetings with Pasalagua, never
corroborated Beltran’s account of Pasalagua’s statements. With-
out credible, corroborating evidence, I do not believe Pasalagua
made the remarks Beltran attributed to him.
Nor do I find Pasalagua’s remark that Mancera should “calm
down” from riling up employees because Stern was considering
him for a supervisor position constitutes an unlawful threat. Ra-
ther, this allegation is more appropriately analyzed under the the-
ory that Respondent promised employees increased benefits
and/or improved working conditions. Therefore, Respondent did
not violate the Act as alleged; and accordingly, I dismiss para-
graphs 5(l) and 5(u)(iii) of the complaint.
D. Promised Employees Increased Benefits and Improved
Terms and Conditions of Employment
The General Counsel next argues that Respondent, through
Pasalagua, during several separate small group meetings, made
promises of increased benefits, wages, and/or other unspecified
benefits to employees in violation of Section 8(a)(1). Pasalagua
and Stern are also alleged to have made further promises to pro-
vide employees with jackets and other unspecified improved
benefits on the eve of the scheduled election. After reviewing all
of the evidence of record, I find that the General Counsel has
proven the allegations alleged.
The Supreme Court, in Medo Photo Supply Corp. v. NLRB,

93 Id.
94 NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964).
95 Id.
96 See, e.g., Curwood Inc., 339 NLRB 1137, 1147–1148 (2003), enfd.
in pertinent part 397 F.3d 548, 553–554 (7th Cir. 2005) (prepetition
321 U.S. 678, 686 (1944), stated that the “action of employees
with respect to the choice of their bargaining agents may not be
induced by favors bestowed by the employer as well as by his
threats or domination.” As the Court explained in NLRB v. Ex-
change Parts Co., 375 U.S. 405, 409 (1964):
[t]he danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove. Employees are not
likely to miss the inference that the source of benefits now
conferred is also the source from which future benefits must
flow and which may dry up if it is not obliged.94
As such, the Court held that that “the conferral of employee ben-
efits while a representation election is pending, for the purpose
of inducing employees to vote against the union,” interferes with
the employees' protected right to organize.95 This rule applies
both when an election is imminent as well as during an organi-
zational campaign before a representation petition has been
filed.96
To avoid liability then, an employer that grants wage increases
or other benefits during the pendency of an election petition must
prove that the increase or benefit was planned prior to the time
the union activity began, or that they were part of an established
past practice.97 If the announcement of a benefit is timed to in-
fluence an election’s outcome, the Board may find a violation of
the Act even where the benefit had previously been planned. Alt-
hough employers’ purported promise is often indirect, ambigu-
ous and must be inferred, “the fact that an employer couches the
promises of benefits in language that does not guarantee any-
thing specific does not remove the taint of illegality.”98
Complaint paragraphs 5(a)(ii) and (iii) allege that Respondent,
via Pasalagua, promised Ruiz that Stern would fix his problems
with his workers compensation payments in an attempt to entice
him to vote against the Union. Based upon a review of the record,
I conclude that the complaint allegations are supported by the
record. Specifically, I find the timing of Pasalagua’s statement,
during a one-on-one meeting with Ruiz on the eve of a scheduled
election, highly suspect. Additionally, there was no evidence ad-
duced by Respondent that Pasalagua or Stern were previously
aware of Ruiz’ workers compensation issue (in fact Stern denied
knowing anything about it) or had previously told Ruiz they
would “fix” his issue. Under the circumstances presented here, I
find Pasalagua’s comment constituted an implied promise of
benefit because he inferred that Ruiz’s workers compensation
payments would be taken care of if he supported Stern and voted
against unionization.
Similarly, I conclude that Pasalagua unlawfully promised in-
creased wages and improved benefits during his small group
meeting with Pacheco. Specifically, the credited evidence sup-
ports Pasalagua’s statements that he told Pacheco, on the eve of
the scheduled election, that he would improve salaries, insurance
and drivers’ positions if Pacheco and others gave Stern a vote of
confidence. In fact, the evidence reveals that Pasalagua
announcement and promise to improve pension benefits in reaction to
knowledge of union activity among its employees violated Sec. 8(a)(1)).
97 NLRB v. Exchange Parts Co., supra; Baltimore Catering Co., 148
NLRB 970 (1964).
98 Superior Emerald Park Landfill, LLC., 340 NLRB 459, 460 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
explicitly linked his promise of wage increases to employees vot-
ing against the Union. The Board has held such implied promises
of benefits tied to an upcoming election unlawful.99
In addition, Pasalagua and Stern unlawfully promised Rosas
and Ruiz wage increases and better working conditions if they
voted against the Union. Specifically, the evidence clearly
demonstrates that, during a small group meeting with Rosas and
Ruiz, Stern told the men that he wanted the opportunity for the
Union not to come onboard and immediately thereafter, told
them that “things were going to change.” Such a link between
the implied promise itself, the timing of the promise (occurring
on the eve of the scheduled election) and a request for a vote of
confidence [and against unionization] makes Stern’s statements
unlawful. Other than Respondent’s denial that the conversation
occurred (which I found not credible), I find no legitimate busi-
ness justification for the timing of Stern’s statements; nor do I
find any evidence that such a beniefit was previously planned.
Accordingly, I conclude Respondent violated the Act as alleged
in complaint paragraphs 5(e) and (m).
Pasalagua and Stern also impliedly promised Mancera and
others that they would provide drivers with jackets and other un-
specified benefits if employees voted against the Union.
The Board found a similar promise to give equipment and re-
sources to employees during an organizing campaign unlawful
in Superior Emerald Park Landfill, 340 NLRB 459, 460 (2003).
In that case, the supervisor, who held three impromptu small
meetings with two employees during an organizing campaign,
told the employees that he would “make [the] necessary changes
to make it a better place to work,” “try to obtain more equipment
and staff,” and offered to do “whatever” he could to address is-
sues involving the “equipment, personnel, needs, changes in the
company [and] changes in the economy.” Significantly, during
these particular meetings, the supervisor stressed to the employ-
ees that “now is the time to bring some of those questions out.”
The Board, in adopting the administrative law judge’s (ALJ
or judge) findings, found an implicit link between the supervi-
sor’s repeated promises to try to obtain more equipment and staff
and the upcoming election. In so doing, the Board, agreeing with
the ALJ’s findings, determined that the supervisor’s remarks
“could not have been clearer in suggesting the linkage between
the upcoming election and management’s desire to improve
employees’ working conditions.” Ultimately, the Board con-
cluded the supervisor’s statements unlawful.
Like in Superior Emerald Park Landfill, in this case, the cred-
ited evidence first demonstrates that Stern linked his request for
a “vote of confidence” to improving conditions at the facility.
The Board found such statements unlawful.100 Second, immedi-
ately after Mancera reminded Stern about his previous request
for company jackets, Stern agreed to provide them. Moreover,
the timing of the promise—occurring during a one-on-one meet-
ing with Mancera, on the eve of the scheduled election—is
highly suspicious especially after Stern asked Mancera for a

99 See NLRB v. Exchange Parts Co., supra.
100 See Reno Hilton, 319 NLRB 1154, 1156 (1995) (supervisor’s re-
quest for a chance to “deliver,” taken in the context of his earlier
references to benefits already bestowed, and in the broader context of
the Respondent’s unlawful promises of benefits, grants of benefits, and
“vote of confidence.” While Respondent denied that the incident
occurred, the evidence demonstrates otherwise. I find no evi-
dence that Respondent had a legitimate business reason for the
timing of Stern’s promises; and as such, Respondent violated the
Act as alleged in complaint paragraph 5(j)(ii).
Lastly, I conclude that Pasalagua impliedly promised Mancera
a promotion if he stopped engaging in protected concerted union
activities. Specifically, the record reveals that Pasalagua told
Mancera that if he “calm[ed] down” from riling up employees,
he was in line for a supervisory position. Even though Mancera
denied riling up anyone, the clear implication of Pasalagua’s
statement is if Mancera refrained from engaging in protected un-
ion activities, he would be considered for promotion. Moreover,
the timing of Pasalagua’s statement—occurring just days before
the scheduled election—infers an improper motive. Having
found no evidence to justify the timing of Pasalagua’s statement,
Respondent violated the Act since any employee in Mancera’s
position would reasonably conclude that they are being promised
a benefit (i.e., promotion) if they do not engage in union activi-
ties. Therefore, I sustain the complaint allegations in paragraph
5(u)(ii).
E. Granted Employees Benefits
1. Respondent’s open door policy
Complaint paragraph 5(f) contends that Respondent, through
Pasalagua and Stern, granted employees benefits when it imple-
mented a previously unenforced open-door policy that provided
direct access to Stern. However, the record reveals otherwise.
Rather, the credited evidence demonstrates that Respondent
maintained an open door practice/policy prior to the scheduled
election which allowed employees to discuss any issue, whether
personal or work related, directly with Stern. Stern’s uncontro-
verted testimony confirmed that, before and after the election pe-
tition was filed, employees approached Stern about various is-
sues and often voiced their concerns about their terms and con-
ditions of employment. Although counsel for the General Coun-
sel relied on employees’ testimony that they had never heard of
the policy prior to the organizing campaign, the evidence demon-
strates that they nevertheless utilized the policy before and dur-
ing the union campaign.
To further prove that Stern implemented the unenforced open-
door policy to coincide with the Union’s organizing campaign,
the General Counsel argued that Stern was hardly available at the
facility prior to the organizing campaign but was present onsite
almost daily during the campaign. However, I credit Stern’s tes-
timony explaining his prior unavailability, which had nothing
whatever to do with the Union or the organizing campaign.
The fact of the matter is that Respondent continued to imple-
ment its open door policy despite the election petition and organ-
izing campaign; and as such, did not violate the Act by granting
implied promises to remedy grievances, violates Sec. 8(a)(1) since such
statements would be interpreted by reasonable employees as an implied
promise “either to grant additional benefits or to remedy employees’
grievances, or both.”).
STERN PRODUCE CO. 29
a previously unenforced benefit to employees.101
2. Respondent’s gift card program
Similarly, I conclude that Respondent did not violate the Act
by granting restaurant gift cards to employees who received 100
percent ratings on their DOT inspections.102 Here, the General
Counsel relies on the testimony of driver Loc who confirmed
that, prior to the union’s organizing campaign he had never re-
ceived any reward for perfect ratings on his DOT inspections.
However, the General Counsel’s reliance on employee testimony
is misplaced.
Rather, the credited and documentary evidence shows that
Leese began the gift card program long before the election peti-
tion was filed to reward drivers for receiving perfect ratings on
their DOT inspections while meeting Respondent’s time targets
to deliver produce. The program was in place before and during
the organizing campaign. Although Loc may not have received
a reward prior to the election petition, the documentary evidence
proves that the start of the program had nothing to do with the
Union, the election petition or the organizing campaign. Re-
spondent thereby did not grant benefits to employees as a result
of the organization campaign or employees protected concerted
union activities. Therefore, I dismiss complaint paragraphs 5(f)
and (n).
F. Informed Employees That It Would be Futile for Them to
Select the Union
Complaint paragraphs 5(c)(ii), (d)(ii), and (o)(ii) all contend
that Respondent, through statements made by Pasalagua, threat-
ened employees that it would be futile for them to select the Un-
ion.
With respect to the allegations that Pasalagua told Pacheco
(and others) that Respondent would reduce employees work
hours if the union came on board and that Stern could give em-
ployees a “penny increase” since Stern ultimately had the last
word (paragraph 5(c)(ii)), I do not find a separate violation here
as I previously analyzed (and sustained) this allegation as an un-
lawful threat of reprisal.103
In addition, I do not find that Respondent violated the Act with
respect to statements Beltran attributed to Pasalagua because I
have previously found Beltran’s testimony uncorroborated and
incredible. Again, this contention formed the basis of an allega-
tion which I previously analyzed and dismissed as a threat of re-
prisal. Accordingly, I dismiss complaint paragraphs 5(c)(ii) and
(d)(ii) respectively.
However, I conclude that Respondent, through Pasalagua, es-
sentially informed Loc that it would be futile for him to select
the Union when he told Loc that it would be better if all employ-
ees got together and spoke directly with Stern about their

101 NLRB v. Exchange Parts Co., supra; see also Baltimore Catering
Co., 148 NLRB 970 (1964).
102 See GC Exh. 1(i) at ¶5(n).
103 This same incident forms the basis for complaint par. 5(g). See GC
1(i) at ¶5g. Counsel for the General Counsel attempts to double dip with
the foregoing allegation as it did with complaint allegation 5(u)(ii) in-
volving Pasalagua’s statements to Mancera. In essence, counsel purports
to use the same incident to support two 8(a)(1) threat of reprisal viola-
tions. In my view, there’s only one, which I previously analyzed and sus-
tained. I cannot imagine any other reason for such duplicity other than
concerns since, in the end, Stern would have the last word. Alt-
hough ordinarily, such a statement would not be found unlaw-
ful,104 given the context in which Pasalagua made his remarks, it
is clear that any employees in Loc’s position would reasonably
believe that selecting the Union would not benefit them since
Stern ultimately made the final decision. Absent any other evi-
dence to justify the the timing of the statement, I find that Pasa-
lagua’s remark violated the Act as alleged in complaint para-
graph 5(o)(ii).
Lastly, the General Counsel raised questions about Respond-
ent’s anti-union sentiment found in its flyers distributed to em-
ployees and posted throughout the facility. However, counsel
does not clearly delineate a specific allegation regarding these
flyers. To the extent that counsel asserts that, Respondent, in its
flyers, threatened its employees by conveying that selecting the
Union would be futile,105 counsel offered no argument in support
of this allegation.106
G. Blamed the Union and Misrepresented its Actions
In complaint paragraph 5(v), the General Counsel essentially
alleges that Respondent threatened employees when it blamed
the Union for preventing Stern from making changes to employ-
ees’ terms and conditions of employment. Counsel further as-
serts that Respondent threatened employees by telling them that
the Union would file ULP charges against Stern if it increased
employees’ wages during the organizing campaign. However,
counsel’s arguments are not supported by the record.
In reaching this conclusion, I considered Respondent’s state-
ment in the context of what was happening during the organizing
campaign as a whole, looking at the overarching message being
conveyed to employees.
Using that standard, the documentary evidence clearly shows
that Stern issued the July 8, 2016 letter to employees in response
to a previous letter from the Union and in an attempt to debunk
rumors (raised by the Union) that employees would receive a
wage increase and to explain Respondent’s legal obligations to
maintain the status quo under the Act. Nothing in the record sug-
gests that this letter threatened employees in any way. I can only
surmise that the General Counsel’s position is that it is a ULP
violation for Respondent to address false rumors and state its le-
gal obligations under the Act during a union organizing drive.
Such an allegation is ridiculous; and I find no evidence that Re-
spondent’s letter violated the Act in any way. Accordingly, I dis-
miss the allegations contained in complaint paragraph 5(v).
H. Interfered with the Board’s Process and Investigation
Lastly, the General Counsel asserts that Respondent, via Pasa-
lagua, violated the Act by discouraging employees from
that the General Counsel is trying to take several bites from the same
apple in an effort to support a Gissel remedy. I caution counsel from
continuing this tactic going forward.
104 See Tri-Cast, Inc., 274 NLRB 377 (1985) (employer’s statement
to employees that they would no longer be able to bring complaints di-
rectly to management if they selected a Union found lawful); see also
Office Depot, 330 NLRB 640, 642 (2000).
105 See GC Exh. Br. at 54; see also GC Exh. 15.
106 See GC Exh. 1(i).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
participating and/or interfering with employees’ ability to partic-
ipate in the Board’s investigation of the Union’s ULP charges. I
agree.
It is well settled that participating in the Board’s processes of
filing ULP charges, regardless of whether they are ultimately
meritorious, is concerted protected activity.107 Giving testimony
to the Board is also protected.108 As such, threatening to retaliate
against employees because they participated in the Board’s pro-
cesses is also a threat of reprisal and violative of the Act.109 Sim-
ilarly, statements intended to hinder or discourage an employee
from participating in the Board’s investigation of ULP charges
violates the Act.110
In complaint paragraph 5(q), the General Counsel asserts that
Respondent, through Pasalagua, discouraged Mancera from par-
ticipating in the Board’s investigation when, after showing
Mancera the Union’s ULP charges, Pasalagua told Mancera that
he could not help employees with work orders so long as Re-
spondent was responding to the Union’s charges. However, the
record reveals otherwise. In fact, Mancera testified that Pasa-
lagua told him that some employees filed charges concerning
work orders being taken away from them, then Pasalagua stated
that Respondent would have to wait until the investigation con-
cluded.111 Counsel failed to establish how these statements dis-
couraged or hindered Mancera or others from participating in the
Board’s investigation of the Union’s ULP charges. Therefore, I
do not find sufficient evidence to conclude that Respondent vio-
lated the Act as alleged, and I dismiss the allegations in the afore-
mentioned paragraph.
However, the record clearly supports that Pasalagua repeat-
edly tried to discourage, hinder and interfere with employees’
right to participate in the Board’s investigation. Specifically, I
find credible evidence that, after showing Juarez the Union’s
ULP charges, Pasalagua told Juarez that he did not need to an-
swer the Board’s questions since the Board would ask him the
same questions as Respondent.112 I find no other implication for
this statement other than to try to discourage Juarez from partic-
ipating in the Board’s investigation.
I also find that Pasalagua told several employees that they
would be lying if they gave testimony about the Union’s charges
to the Board and would be fined and jailed for giving false testi-
mony. On its face alone, Pasalagua’s remark is intended to

107 See Anheuser-Busch, Inc., 337 NLRB 3, 15 (2001) (unlawful threats
of retaliation for filing charges with Board violate Act), enfd. 338 F.3d
267 (4th Cir. 2003); see also Braun Electric Co., 324 NLRB 1 (1997),
citing, Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, 740 (1983),
and Roadway Express, 239 NLRB 653 (1978) (“there can be no doubt
that [filing charges] was protected by the Act.”).
108 Equitable Gas Co., 303 NLRB 925, 936 (1991) (finding violation
of Sec. 8(a)(1) where threatening statements were premised on filing
ULP charges and giving supporting testimony under the Act”).
109 See, e.g., Armstrong Rubber Co., 273 NLRB 233, 235 (1984); Do-
nahue Beverages, Inc., 1999 NLRB 681, 583 (1972).
110 Management Consultant Inc. (MANCON), 349 NLRB 249, 250
(2007); see also Certain-Teed Products Corp., 147 NLRB 1517, 1519–
1521 (1964) (employer’s advice to employees that they need not cooper-
ate with Board agents in unfair labor practice investigations violated Sec.
8(a)(1) where advice was designed to and would discourage employees
from providing information and hinder investigation of unfair labor prac-
tice charges).
discourage employees from giving testimony to the Board.113
Accordingly, by attempting to discourage employees from par-
ticipating in the Board’s investigation, Respondent violated Sec-
tion 8(a)(1) of the Act as alleged in complaint paragraphs 5(r)(iii)
and (s)(ii).
I. BARGAINING ORDER
The General Counsel requests, given the numerous egregious
violations committed by Respondent, that I issue a remedial bar-
gaining order under NLRB v. Gissel Packing Co., 395 U.S. 575
(1969) (also known as a Gissel bargaining order).
The Board has broad discretion to fashion a just remedy to fit
the circumstances of each case it confronts.114 The Supreme
Court has interpreted Section 10(c) as vesting the Board with
discretion to devise remedies that effectuate the policies of the
Act.115
Under Gissel, the Board will issue a remedial bargaining or-
der, absent an election, in two categories of cases. The first cat-
egory is “exceptional” cases, those marked by unfair labor prac-
tices so “outrageous” and “pervasive” that traditional remedies
cannot erase the coercive effects, thus rendering a fair election
impossible.116
The second category involves “less extraordinary cases
marked by less pervasive practices which nonetheless still have
the tendency to undermine the majority strength and impede
election processes.”117 In the latter category of cases, a Gissel
bargaining order may be best if, on balance, the possibility of
erasing the effects of the past unfair labor practices, by using tra-
ditional remedies is slight and employee sentiment would be bet-
ter protected by the order.118
In determining the propriety of a bargaining order, the Board
examines the seriousness of the violations and the pervasive na-
ture of the conduct, considering such factors as the number of
employees directly affected by the violations, the size of the unit,
the extent of the dissemination among employees, and the iden-
tity and position of the individuals committing the unfair labor
practices.119 A Gissel order, however, is an extraordinary rem-
edy. The preferred route is to order traditional remedies for the
unfair labor practices and to hold an election, once the atmos-
phere has been cleansed by the remedies ordered. Hialeah Hos-
pital, 343 NLRB 391, 395 (2004) (citing Aqua Cool, 332 NLRB
111 Tr. 177.
112 MANCON, supra at 249 (“an instruction, admonition, or warning
to an employee, express or implied, not to get involved in activities pro-
tected by the Act interferes with, restrains, and coerces employees in the
exercise of their rights under the Act.”).
113 See Novelis Corp., 363 NLRB No. 101, fn. 9 (2016).
114 Maramont Corp., 317 NLRB 1035, 1037 (1995).
115 Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898–899 (1984).
116 Gissel, supra.
117 Id. at 614.
118 Id.
119 See Intermet Stevensville, 350 NLRB 1270 (2007) citing Abram-
son, LLC, 345 NLRB 171, 176 (2005) (citing Garvey Marine, Inc., 328
NLRB 991, 993 (1999), enfd. 245 F.3d 819 (D.C. Cir. 2001)). Accord
Holly Farms Corp., 311 NLRB 273, 281 (1993), enfd. 48 F.3d 1360 (4th
Cir. 1995), cert. denied in pertinent part 516 U.S. 963 (1995).
STERN PRODUCE CO. 31
95, 97 (2000)).
After carefully reviewing the violations found herein, I find
that the General Counsel has met its burden to prove that a Gissel
bargaining order is appropriate under the circumstances.
The purpose of a remedial bargaining order is “to remedy past
election damage [and] deter future misconduct.”120 The Supreme
Court had sanctioned the issuance of such a bargaining order
“where an employer has committed independent unfair labor
practices which have made the holding of a fair election unlikely
or which have in fact undermined the union's majority. . . .”121
Thus, the Board has the authority to order an employer to recog-
nize and bargain with a union even if the employees have not
voted for union representation in an election.
Using the aforementioned standards, I find that this case falls
squarely within Category I. The pervasiveness of the unfair labor
practices is described fully above and need not be reiterated here.
The unfair labor practices included highly coercive hallmark vi-
olations such as threats of job loss, layoffs, and facility closure,
as well as threats of bankruptcy, mass strikes, and lock outs.
Moreover, the unfair labor practices continued over several
months on the eve of the scheduled election. The threat of facility
closures and lock outs came from Respondent’s agents, speaking
on behalf of the owner, during small one-on-one meetings as
well as during captive-audience meetings with each and every
employee. “Neither the threat nor the mass layoff is likely to be
forgotten by the employees. To the contrary, these are the types
of dire warnings and concrete measures certain to exert a sub-
stantial and continuing coercive impact on any employee,
whether current or subsequently hired, contemplating a vote in
favor of unionization.”122
Respondent also committed other unfair labor practices that
made it clear to the employees that their support and/or vote for
the Union would have a negative effect on their employment.
Those violations included holding small one-on-one and large
group meetings where Respondent’s consultants gave employees
the impression that their concerted activity was under surveil-
lance, repeatedly making statements that it was futile for employ-
ees to support the Union, threatening employees with a loss of
benefits and reduced work hours, promising employees improved
working conditions, equipment and other resources if they voted
against the Union, and telling employees that Respondent would
engage in dilatory bargaining if they voted to unionize. These vi-
olations reinforced the coercive atmosphere created by the “hall-
mark” threats of job loss, layoffs, facility closure, and/or bank-
ruptcy.
Although I did not find violations on every allegation in the
complaint, for those violations I do find, I conclude that they are
sufficiently severe and persuasive hallmark violations that, cou-
pled with the other violations, have tainted the environment to
such an extent that a fair, impartial election is impossible. I find,
therefore, that a bargaining order is warranted under Category
I.123

120 Gissel, supra.
121 Gissel, supra at 610; see also NLRB v. Katz, 369 U.S. 736, 748
(1962).
122 See Weldun International, 321 NLRB 733, 734, and 748 (1996),
enfd. mem. in relevant part 165 F.3d 28 (6th Cir. 1998).
CONCLUSIONS OF LAW
1. Respondent Stern Produce Company, Inc. is an employer
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by interro-
gating employees Roberto Rosas and Jose Ruiz about their union
membership, activities, and/or sympathies.
3. Respondent violated Section 8(a)(1) of the Act by interro-
gating employees Juan Juarez and Jose Pacheco about their par-
ticipation in the Board’s investigation of the Union’s ULP
charges.
4. Respondent violated Section 8(a)(1) of the Act by creating
an impression that employees’ union activities were under sur-
veillance by suggesting that Respondent knew which employees
were participating in the Board’s investigation of the Union’s
ULP charges.
5. Respondent violated Section 8(a)(1) of the Act by threaten-
ing employees Jose Pacheco, Jose Loc, and Gasper Beltran that
the owner would sell his business and/or close the facility if em-
ployees supported the Union.
6. Respondent violated Section 8(a)(1) of the Act by threat-
ening employee Juan Juarez that the owner may go bankrupt if
employees supported the Union.
7. Respondent violated Section 8(a)(1) of the Act by threat-
ening employees that the owner will force a strike or lock out if
employees supported the Union.
8. Respondent violated Section 8(a)(1) of the Act by threat-
ening Jose Pacheco and other employees with unspecified repris-
als and a loss of benefits and work hours if employees supported
the Union.
9. Respondent violated Section 8(a)(1) of the Act by making
threatening statements to Eduardo Mancera and other employees
that they would be unable to talk to or deal/negotiate directly
with the owner if employees unionized.
10. Respondent violated Section 8(a)(1) of the Act by threat-
ening Jose Pacheco, Gasper Beltran, and other employees that
they would be fined and given jail time if they testified untruth-
fully during the Board’s investigation of the Union’s ULP
charges.
11. Respondent violated Section 8(a)(1) of the Act by prom-
ising employees increased wages, benefits, equipment and/or im-
proved terms and conditions of employment if the Union lost the
election.
12. Respondent violated Section 8(a)(1) of the Act by prom-
ising employee Eduardo Mancera that Respondent would pro-
vide equipment and other unspecified benefits to employees if
the Union lost the election.
13. Respondent violated Section 8(a)(1) of the Act by giving
employee Jose Loc the impression that it would be futile for them
to vote for the Union.
14. Respondent violated Section 8(a)(1) of the Act by discour-
aging employee Juan Juarez from testifying in the Board’s inves-
tigation of the Union’s ULP charges.
123 Electro-Voice, Inc., 320 NLRB 1094 (1996). Since the General
Counsel satisfied the standards for a Gissel order under Category I, I do
not reach the question of whether the case satisfies the standards for a
bargaining order under Category II—that being whether Respondent’s
ULP violations undermined the Union’s support.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
15. By the conduct described above, Respondent has engaged
in unfair labor practices affecting commerce within the meaning
of Sections 2(2), (6), and (7) of the Act.
16. By the conduct described above, Respondent has failed to
recognize and bargain in good faith with the Union.
17. Accordingly, Respondent has violated Sections 8(a)(5)
and (1) of the Act.
18. Respondent did not otherwise engage in any other unfair
labor practices alleged in the consolidated complaint in violation
of the Act.
REMEDY
Having found that Respondent engaged in several unfair labor
practices, I find Respondent must be ordered to cease and desist
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
Having interrogated employees Jose Ruiz and Roberto Rosas
about their union membership, activities, and/or sympathies, Re-
spondent is ordered to cease and desist from this action and in-
terrogating any other employee about his/her union membership,
activities, and/or sympathies.
Having interrogated employees Juan Juarez and Jose Pacheco
about their participation in the Board’s investigation of the Un-
ion’s ULP charges, Respondent is ordered to cease and desist
from this action and interrogating any other employees about
their protected concerted activity.
Having created an impression that employees’ union activities
were under surveillance by suggesting that Respondent knew
which employees were participating the Board’s investigation of
the Union’s ULP charges, Respondent is ordered to cease and
desist from this action.
Having threatened employees Jose Pacheco, Jose Loc, and
Gasper Beltran that the owner would sell his business and/or
close the facility if employees supported the Union, Respondent
is ordered to cease and desist from this action and threatening
any other employee in this regard.
Having threatened employee Juan Juarez that the owner may
go bankrupt if employees supported the Union, Respondent is
ordered to cease and desist from this action and threatening any
other employee in this regard.
Having threatened employees that the owner will force a strike
or lockout if employees supported the Union, Respondent is or-
dered to cease and desist from this action.
Having threatened employee Jose Pacheco and other employ-
ees with a loss of benefits, reduced work hours and other unspec-
ified reprisals if employees supported the Union, Respondent is
ordered to cease and desist from this action.
Having made threatening statements to employee Eduardo
Mancera and other employees that they would be unable to talk
to or deal/negotiate directly with the owner if employees union-
ized, Respondent is ordered to cease and desist from this action.
Having threatened Jose Pacheco, Gasper Beltran, and other
employees that they would be fined and given jail time if they

124 J. Picini Flooring, 356 NLRB 11, 13.
125 Allied Medical Transport, Inc., supra at 6 fn. 9 (2014).
126 Federated Logistics & Operations, 340 NLRB 255, 258 (2003),
affd. 400 F.3d 920, 929–930 (D.C. Cir. 2005); see also Homer D. Bron-
son Co., 349 NLRB 512, 515 (2007).
testified untruthfully during the Board’s investigation of the Un-
ion’s ULP charges, Respondent is ordered to cease and desist
from this action.
Having made implied promises to employees of increased
wages and other improved terms and conditions of employment
if the Union lost the election, Respondent is ordered to cease and
desist from this action.
Having made implied promises to employee Eduardo
Mancera that Respondent would provide employees with equip-
ment and/or other resources if the Union lost the election, Re-
spondent will be ordered to cease and desist from this action.
Having given employee Jose Loc the impression that it would
be futile for him and his coworkers to vote for the Union, Re-
spondent is ordered to cease and desist from this action.
Having discouraged employee Juan Juarez from testifying in
the Board’s investigation of the Union’s ULP charges, Respond-
ent is ordered to cease and desist from this action and discourag-
ing any other employee in this regard.
In light of my finding above that a Gissel bargaining-order is
appropriate, the Respondent is ordered to, on request, bargain
with the Local 99 of the United Food and Commercial Workers
Union as the exclusive representative of the employees in the
appropriate unit concerning terms and conditions of employ-
ment.
I will order that Respondent post a notice in the usual manner,
including electronically to the extent mandated in J. Picini
Flooring, 356 NLRB 11, 15–16 (2010). The notice will be
posted in both English and Spanish. In accordance with J. Picini
Flooring, the question as to whether an electronic notice is ap-
propriate should be resolved at the compliance phase.124
In addition, the General Counsel has requested that the notice
be read aloud by Stern or Pasalagua or by a Board agent in the
presence of Stern or Pasalagua. The Board has required this rem-
edy when numerous serious unfair labor practices have been
were committed by high-ranking management officials.125 In ad-
dition, when unfair labor practices are severe and widespread,
having the notice read aloud to employees allows them to “fully
perceive that the Respondent and its managers are bound by the
requirements of the Act.”126
I find the General Counsel has established that this remedy is
necessary to enable employees to exercise their Section 7 rights
free from coercion.127 However, in light of the coercive environ-
ment created by the violations committed by Stern and/or his
consultants, Respondent is ordered to have the notice read aloud
by a Board agent in the presence of Stern, Pasalagua and Penn as
well as the rest of Respondent’s management personnel. The
notice will be read in both English and Spanish, or read in Eng-
lish and translated in Spanish; however, the translation shall not
be read/conducted by Pasalagua. In addition, Respondent is or-
dered to read the Notice in the presence of a Union representative
in order that employees will be assured that they can learn about
union representation and support the Union if they choose.128
127 See AC Specialists, Inc., 359 NLRB 1401, 1404 (2013); Jason
Lopez' Planet Earth Landscape, Inc., 358 NLRB 383, 383 (2012).
128 United States Service Industries, 319 NLRB 231, 232 (1995) (or-
dered notice reading in presence of union due to employer’s “history of
STERN PRODUCE CO. 33
The General Counsel has also requested that an explanation of
rights under the Act should accompany the Board notice to em-
ployees. I find the General Counsel’s request supported given the
nature and pervasiveness of unfair labor practice violations com-
mitted by Respondent and will “undo the likely impact of the
violations on . . . employees.”129
Lastly, the General Counsel requests that the Union be granted
access to non-work areas of Respondent’s facility during non-
work time to afford the union “an opportunity to participate in
the restoration and reassurance of employee rights by engaging
iin future organizational efforts, if it so chooses, in an atmos-
phere free of further restraint or coercion.” However, I decline to
order this remedy under the circumstances presented in this
case.130
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended131
ORDER
Respondent, Stern Produce Company, Inc., Phoenix, Arizona,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union membership,
activities, and/or sympathies;
(b) Interrogating employees about their participation in the
Board’s investigation of ULP charges filed against Respondent;
(c) Creating an impression that employees’ union activities
are under surveillance by suggesting that Respondent knew
which employees were participating in the Board’s investigation
of ULP charges against it;
(d) Making threatening statements to employees that the
owner would sell his business and/or close the facility if employ-
ees supported the Union;
(e) Making threatening statements to employees that the
owner may go bankrupt if employees supported the Union;
(f) Threatening employees that the owner will force a strike
or lockout if employees supported the Union;
(g) Threatening employees a loss of benefits, reduced work
hours, and/or other unspecified reprisals if employees supported
the Union;
(h) Making threatening statements to employees that they
would be unable to talk to or deal/negotiate directly with the
owner if employees unionized;
(i) Threatening employees that they would be fined and given
jail time if they testified untruthfully during the Board’s investi-
gation of ULP charges against it;
(j) Promising employees increased wages, benefits, equip-
ment, and/or other improved terms and conditions of employee
if the Union lost the election;
(k) Giving employees the impression that it would be futile
for them to vote for the Union;
(l) Discouraging employees from testifying in the Board’s

pervasive illegal conduct” during organizing campaigns), enfd., 107 F.3d
923 (D.C. Cir. 1997).
129 Pacific Beach Hotel, 361 NLRB 709, 714.
130 Excel Case Ready, 334 NLRB 4, 5 (2001).
131 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
investigation of ULP charges against it;
(m) Failing to recognize and bargain in good faith with the
Union; and
(n) 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 effectu-
ate the policies of the Act.
(a) On request, bargain with Local 99 of the United Food and
Commercial Workers Union as the exclusive collective-bargain-
ing representative of the employees in the following appropriate
unit concerning terms and conditions of employment
Included: All full-time and regular part-time warehouse em-
ployees and drivers employed by Respondent at its distribution
facility in Phoenix, Arizona.
Excluded: All sales employees, accounting employees, office
clerical employees, maintenance employees, managers,
guards, and supervisors as defined by the Act.
(b) Within 14 days after service by the Region, post at its fa-
cility in Phoenix, Arizona, copies of the attached notice marked
“Appendix”132 in both English and Spanish. Copies of the notice,
on forms provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places where no-
tices to employees are customarily posted. In addition to physi-
cal posting of paper notices, the notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other material.
In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since January 1, 2015.
(c) Within 14 days after service by the Region, hold a meeting
or meetings, scheduled to ensure the widest possible attendance,
at which the attached notice is to be read to all employees by a
Board agent in the presence of the owner/president, consultants
Ricardo Pasalagua and Miko Penn and all other management of-
ficials employed by Respondent. The notice will be read in both
English and Spanish, or read in English and translated into Span-
ish.
(d) Within 21 days after service by the Region, file with the
Regional Director for Region 28 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
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.
132 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
Dated: Washington, D.C. December 14, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising
these rights.
WE WILL NOT interrogate you about your union membership,
activities, and/or sympathies.
WE WILL NOT interrogate you about your participation in an
investigation of unfair labor practice charges conducted by Na-
tional Labor Relations Board.
WE WILL NOT create an impression that your union activities
are under surveillance by stating or suggesting in any way that
we know that you are participating in an investigation of unfair
labor practice charges conducted by the National Labor Rela-
tions Board.
WE WILL NOT make threatening statements to you that we will
sell the business, close the facility, and/or go bankrupt if you
support the Union or otherwise exercise your Section 7 rights.
WE WILL NOT threaten to force a strike or lockout of employ-
ees if you support the Union or otherwise exercise your Section
7 rights
WE WILL NOT threaten you with a loss of benefits, reduction of
work hours, or other unspecified reprisals if you support the
Union or otherwise exercise your Section 7 rights.
WE WILL NOT threaten you with fines and jail time if you tes-
tify during an investigation of unfair labor practice charges con-
ducted by the National Labor Relations Board.
WE WILL NOT promise you increased wages, benefits, equip-
ment, and/or other improved terms and conditions of employ-
ment for engaging in union or other protected concerted activity.
WE WILL NOT give you the impression that it would be futile
to support the Union or otherwise exercise your Section 7 rights.
WE WILL NOT discourage you from testifying in an investiga-
tion of unfair labor practice charges conducted by National La-
bor Relations Board.
WE WILL on request, bargain with the Union and put in writing
and sign any agreement reached on terms and conditions of em-
ployment for our employees in the bargaining unit:
Included: All full-time and regular part-time warehouse em-
ployees and drivers employed by Respondent at its distribution
facility in Phoenix, Arizona.
Excluded: All sales employees, accounting employees, office
clerical employees, maintenance employees, managers,
guards, and supervisors as defined by the Act.
STERN PRODUCE COMPANY, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-163215 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.