Sun Country Citrus, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1984

268 N.L.R.B. 700 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sun Country Citrus, Inc. and Construction, Produc-
tion & Maintenance Laborers' Union, Local
383, Laborers' International Union of North
America, AFL-CIO
Sun Country Citrus, Inc. and Construction, Produc-
tion and Maintenance Laborers' Union, Local
383, an affiliate of the Laborers' International
Union of North America, AFL-CIO and Sales
Drivers and Helpers Teamsters Local 274, an
affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Petitoner. Cases 28-CA-
6156 and 28-RC-3849
30 January 1984
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 15 March 1983 Administrative Law Judge
Burton Litvack issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings, findings, l and
conclusions2 and to adopt the recommended
Order.
' The Respondent has excepted to some of the judge's credibility find-
ings. 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. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 We specifically affirm the judge's conclusion that Supervisor Gross
violated Sec. 8(aXI) by soliciting employee Vasquez to dissuade other
employees from supporting the Union. Our dissenting colleague apparent-
ly views this conduct as innocuous in the context of a general friendship
between Vasquez and Gross. The Chairman's view excludes from consid-
eration facts which place Gross' conduct in the proper context. Having
hired Vasquez, Gross approached her on the first day of her job, in-
formed her about the Union's organizational effort, directly asked her if
she would vote for the Union, told her not to vote for it, implied surveil-
lance of the Union's activities by identifying its employee adherents, and
threatened to take her "to the office" if she spoke well of the Union.
After this bit of "friendly persuasion," Gross informed Vasquez that she
hired her to help persuade other employees to vote against the Union.
Then, in the evening of the same day, Gross visited Vasquez at her home
where she again solicited her help in dissuading employees from voting
for the Union, and repeated her threat to take Vasquez to the office if she
spoke favorably about the Union. Under these circumstances, we find
that Gross far transgressed the bounds of friendship. Her solicitation to
oppose the Union, coupled with an express threat of adverse action for
failing to do so, would reasonably tend to coerce Vasquez or any em-
ployee from engaging in union activities.
Contrary to the judge, we conclude that Supervisor Gross' assertion,
that if employee Vasquez voted for the Union the Union would have her
fired, did not constitute illegal conduct under Sec. 8(aXI) of the Act.
268 NLRB No. 97
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Sun Coun-
try Citrus, Inc., Yuma, Arizona, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order, except that the attached notice
is substituted for that of the administrative law
judge.
IT IS FURTHER ORDERED that the election in
Case 28-RC-3849 be set aside and that said case be
severed and remanded to the Regional Director for
Region 28 for the purpose of conducting a new
election.
[Direction of Second Election omitted from pub-
lication.]
CHAIRMAN DOTSON, dissenting in part.
Unlike my colleagues, I do not find that the Re-
spondent violated Section 8(a)(1) of the Act when
its supervisor asked an employee to relate to other
employees her experience with a union.' The su-
pervisor, Gross, and the employee, Vasquez, admit-
tedly were friends. They had worked together for
a previous employer and Vasquez was hired by
Gross to work for the Respondent. It was in this
context that Vasquez voluntarily informed Gross
that her husband had been a union member. Gross,
in turn, asked Vasquez to relate her experience to
her fellow employees and ask them to vote against
the Union. I do not consider that a request of this
nature, in this context, interferes with, restrains, or
coerces employees in the exercise of their Section 7
rights.
I agree with the decision in all other respects.
i I take issue solely with this specific finding. Thus, I am not persuad-
ed by the majority's reiteration of other violations found by the adminis-
trative law judge and with which I agree.
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to rehire laid-off or former
employees because they engaged in union or other
protected concerted activities.
WE WILL NOT interrogate employees concerning
their union membership, sympathies, and activities.
700
SUN COUNTRY CITRUS, INC.
WE WILL NOT create among our employees the
impression that we are engaging in surveillance of
their union or other protected concerted activities.
WE WILL NOT solicit our employees to engage in
antiunion campaigning and to dissuade their fellow
employees from engaging in union or other pro-
tected concerted activities.
WE WILL NOT threaten employees with termina-
tion or other reprisals because they engage in union
or other protected concerted activities.
WE WILL NOT threaten employees with harsher
and more onerous working conditions because they
engaged in union or other protected concerted ac-
tivities.
WE WILL NOT impliedly threaten to notify the
Immigration and Naturalization Service in order to
dissuade employees from supporting a labor organi-
zation.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Juan Diaz immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way.
SUN COUNTRY CITRUS, INC.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge: These
matters were tried before me in Yuma, Arizona, on Sep-
tember 29, 1982, pursuant to an order consolidating cases
and notice of hearing issued by the Regional Director
for Region 28 of the National Labor Relations Board,
herein called the Board, on December 30, 1980.1 The
amended complaint in Case 28-CA-6156 was issued by
said Regional Director on June 25, 1981,2 based on an
unfair labor practice charge filed by Construction, Pro-
duction & Maintenance Laborers' Union, Local 383, La-
borers' International Union of North America, AFL-
CIO, herein called the Laborers, on November 5, 1980,
and alleges that Sun Country Citrus, Inc., herein called
the Respondent, engaged in acts and conduct violative of
Section 8(a)(1) and (3) of the National Labor Relations
l Unless otherwise stated, all events herein occurred in 1980.
2 The Regional Director issued an order, deleting portions of the
8(aXI) and (5) allegations and the entire 8(aX1) and (5) allegation, on
April 13, 1982.
Act, herein called the Act. The Respondent filed an
answer thereto, denying the commission of any unfair
labor practices. The Laborers and Sales Drivers and
Helpers Teamsters Local 274, an affiliate of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Teamsters, jointly filed a petition for an election among
certain employees of the Respondent in Case 28-RC-
3849 on May 23, 1980, and an election, pursuant thereto,
was conducted by the Regional Director for Region 28
on October 31, 1980. The Laborers timely filed objec-
tions to the conduct of said election on November 5 and
7, 1980, and the said Regional Director issued an order
directing a hearing on the objections on December 19,
1980. The matters were consolidated for hearing inas-
much as several of the objections parallel the unfair labor
practice allegations contained in the amended complaint.
At the hearing, all parties were afforded a full opportuni-
ty to examine and cross-examine witnesses, to offer rele-
vant evidence, and to file posthearing briefs.
Upon the entire record of the case, my observation of
the demeanor of the witnesses, and the post-hearing
briefs, which have been carefully considered, I make the
following
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a State of Arizona corporation, is en-
gaged in the business of packing and shipping citrus
fruits at a place of business located in Yuma, Arizona.
During the 12-month period immediately preceding the
issuance of the amended complaint, a representative
period, the Respondent, in the course and conduct of its
aforementioned business operations, sold and shipped
citrus fruit, valued in excess of $50,000, directly to cus-
tomers located outside the State of Arizona. The Re-
spondent admits that, at all times material herein, it has
been, and is, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION
The Respondent admits that the Laborers is now, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
!I!. ISSUES
1. Since on or about September 22, 1980, has the Re-
spondent failed and refused to rehire its former employ-
ee, Juan Diaz, in violation of Section 8(a)(1) and (3) of
the Act?
2. Has the Respondent engaged in conduct violative of
Section 8(a)(l) of the Act by the following acts:
(a) In May 1980, interrogating an employee regarding
her union membership, activities, and sympathies.
(b) On or about October 21, 1980, creating the impres-
sion among its employees that it was engaging in surveil-
lance of their union activities.
(c) On or about October 21, 1980, soliciting its em-
ployees to withhold support from the Laborers and to
encourage fellow employees to do the same.
701
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) On or about October 21, 1980, threatening employ-
ees with reprisals if they conferred with other employees
about the Laborers.
(e) On or about October 21, 1980, threatening employ-
ees that if the Laborers were selected by them as their
collective-bargaining representative, it would fire those
who voted against it in the forthcoming election.
(f) On or about October 21, 1980, interrogating em-
ployees regarding their union membership, activities, and
sympathies.
(g) On or about October 25, 1980, telling employees
that their jobs would be assured if they voted against the
Laborers in the forthcoming election.
(h) On or about October 25, 1980, creating the impres-
sion among its employees that more restrictive work
rules would result if they selected the Laborers as their
collective-bargaining representative.
(i) On or about October 25, 1980, telling employees
that the Laborers would not permit them to vote with-
out immigration papers.
() On or about October 27, 1980, implying that em-
ployees would receive a similar benefit previously re-
ceived, if they rejected the Laborers.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent's Failure and Refusal to Rehire
Employee Juan Diaz
1. The facts
The record establishes that the Respondent operates a
packing house in Yuma, Arizona, wherein various types
of citrus fruits including lemons, oranges, and grapefruits
are graded, sorted, packaged, and shipped to customers
throughout the United States and that said operations are
conducted on a seasonal basis, with the lemon picking
and packing season lasting from late August until Janu-
ary or February of the following year and the picking
and packing of Valencia oranges commencing in late
February and continuing through May. Rezza Gorgani,
who is currently the president of the Respondent, was its
general manager during 1980; George Dominguez has
been a foreman since 1977; Richard Ochoa was the
"grade foreman" for the Respondent in 1980; and Eva
Gross is a floorlady for the Respondent. s The record
further establishes that, commencing in April 1980, the
Laborers and the Teamsters jointly conducted an orga-
nizing campaign among the Respondent's employees and
that said campaign culminated in the filing of a represen-
tation election petition on May 23 in which the Joint Pe-
titioners sought to represent the Respondent's production
and maintenance employees and truckdrivers. An elec-
tion was eventually conducted by a Board agent on Oc-
tober 31, the results of which showed that 38 votes were
cast against the Laborers and the Teamsters and 30 votes
were cast for them. The Laborers timely filed objections
to the conduct of the election.
s The Respondent admitted that Dominguez and Ochoa were supervi-
sors within the meaning of Sec. 2(11) of the Act and stipulated to the
supervisory status of Gross.
Juan Diaz testified that he worked for the Respondent
during the 1979-1980 citrus picking and packing season4
and that he mainly performed two jobs5-making boxes
and stacking packed boxes on pallets. Diaz admitted that
he exhibited no support for the union organizing cam-
paign during the spring of 1980, and there is no record
evidence that he participated in any significant manner
except to the extent of executing a Laborers authoriza-
tion card on April 30 and, perhaps, attending union
meetings. As to the former, Diaz stated that no supervi-
sors or anyone else observed him sign the authorization
card "because we did it very discreetly," and he also tes-
tified that no supervisors ever spoke to him concerning
his union activities or that subject generally. There is no
dispute that Diaz worked for the Respondent until on or
about May 19 at which time he abruptly quit-"Because
it was coming to the end of May and they started to take
people out of the last ones that were in that didn't have
enough time." In this regard, Respondent's Exhibit 5, a
week-by-week compilation of the number of packing-
house employees employed by the Respondent from
April 26 until November 8, 1980, reveals that 20 new
employees were hired during the week ending May 17
and that the number of employees did not decline signifi-
cantly, reflecting the end of the citrus season, until the
week ending June 14. In any event, according to Diaz,
he went to Mexico for the summer months.6
Diaz further testified that, on returning to the Yuma
area, he visited the Respondent's packinghouse on Sep-
tember 22, the Monday of the last complete week in Sep-
tember, seeking work. He met Richard Ochoa by the
door and asked to be hired. Ochoa "told me to wait for a
little while until he would settle the people . . . so he
could accommodate me." Thereupon, according to Diaz,
they observed George Dominguez, the foreman, walking
4 Diaz testified during cross-examination that he was hired in Novem-
ber 1979 but also identified his W-4 tax form which is dated January 11,
1980. Mike Shrader, the Respondent's accountant, testified that the Re-
spondent requires all newly hired employees to complete a W-4 form on
the date of hire, that Diaz did not work for the Respondent prior to Jan-
uary 11, 1980, and that company records show that no paychecks were
issued to Diaz prior to that date.
a There appears to be confusion in the record as to Diaz' job classifica-
tion and what types of work he was able, and qualified, to perform. At
the outset, the record establishes that the packer and grader/sorter jobs
are mainly performed by women and that the male jobs involve loading
and unloading, palletizing, driving forklifts, cleaning, and general labor.
Rezza Gorgani testified that individuals other than packers and graders
may be classified as doing one type of work, most work where needed,
and may do several different jobs in a day; that Diaz was moved from
job to job; and that a general laborer is one "who can do odds and little
thing here, little thing down there." Richard Ochoa echoed Gorgani, tes-
tifying that Diaz, like other workers, was a "handyman"-"sometimes
they load, sometimes they make cartons, everything." G.C. Exh. 3,
which is a compilation of the names, classifications, and week of hire for
all employees as of October 24, 1980, shows that employees were classi-
fied as either packer or grader or general laborer. Based on the forego-
ing, it is apparent that Diaz was capable of performing all types of work
but, perhaps, with the exception of sorting/grading and packing, jobs for
which the Respondent utilized women predominantly.
6 There is some dispute as to where Diaz went after quitting the Re-
spondent's employ in May. Juventino Matus, a box foreman for the Re-
spondent, testified that he had a conversation with Diaz a few days later
in the latter's house. Diaz told Matus "that he was going to Colordao for
the lettuce, and that the work right there at Sun Country was very hard
. . it was very heavy work, and that he got tired there."
702
SUN COUNTRY CITRUS, INC.
up the stairs which led to the office, and Ochoa said to
the foreman that Diaz was there, ready for work. Do-
minguez responded "that right now at the moment there
was no work," and Diaz thereupon left. He testified that
for the next 3 weeks, three times each week (on every
Monday, Wednesday, and Friday), he went to the pack-
inghouse in order to be rehired for the coming season;
on each occasion he was told by Dominguez that there
was no work available but that he should come back
again. According to Diaz, his last such visit was on
Friday,7 October 15.s He met Gilberto Matus, the Re-
spondent's shipping clerk, and they spoke about Diaz re-
turning to work. George Dominguez approached them
and said to Matus that he needed two new workers.
"And then [Matus] said here's the old man, because
that's what they call me, the old man . . . and [Domin-
guez] said that he wouldn't give me a job because I had
signed the Union card." Thereupon, Matus returned to
Diaz, and "he told me for you, there's no more work
here." Diaz left the packinghouse and did not return.
With regard to the Respondent's defense to the allega-
tions that it unlawfully refused to rehire Juan Diaz, Gil-
berto Matus denied that the events of October 15, as tes-
tified to by Diaz, ever occurred.9 George Dominguez
testified that Diaz did, indeed, seek to be rehired by the
Respondent in September 1980-in the midst of the
lemon season. According to the foreman, he was work-
ing on the packinghouse floor when Diaz entered and
approached him. Diaz "came in asking for a job, he told
me he really needed a job . . . but at the time I didn't
give him a job because I didn't have no openings. I had a
crew all set . . . [w]hen he came in . . . he said that he
would later give me $50 if I gave him a job right away. I
told him, 'That's not the way it work,' but if I needed
help, I will hire him but not now, because I had no
openings for him.... I told him to check back in
maybe couple of weeks . . . to see if we needed any
more help, and I would hire him." Dominguez specifical-
ly denied refusing to hire Diaz because the latter had ex-
ecuted an authorization card, stating, "at that time, I
didn't even know he was a union member or he was in-
volved with the union. I just didn't hire him because ...
I didn't need any help at that time."x° Juventino Matus,
7 Diaz was certain that his last visit to the packinghouse was on a
Friday in mid-October inasmuch as on the next day, a Saturday, he
sought employment at another packinghouse.
a Diaz' recollection of what occurred subsequent to his September 22
visit to the packinghouse was marred by a direct conflict between his tes-
timony as to dates and the reality of the 1980 calendar. Thus, he was cer-
tain that his final visit to the packinghouse was on Friday, October 15.
As to the day of the week, Diaz was sure it was a Friday inasmuch as on
"Saturday I went to ask for the job right there where I'm working."
However, a check of the 1980 calendar establishes that October 15 was a
Wednesday and that October 17 was a Friday. When confronted with
this fact, Diaz continued to insist that the date of his last visit was Octo-
ber 15-"because, you see, the two weeks of October, it would be fifteen
days." Further, although Diaz insisted that the packinghouse was in oper-
ation, sorting and packing lemons, on the day of his last visit, Respond-
ent's Exhibit 9 establishes that on Wednesday, October 15, no lemons
were sorted or packed. However, said exhibit does reveal that lemons
were sorted and packed on Friday, October 17.
9 Matus, who has a severe hearing impairment, normally "hears" by
reading the lips of a speaker and admitted that there is a great deal of
noise in his work area.
1' Rezza Gorgani testified that four general factors govern the Re-
spondent's employment requirements on any given day: supply and
the box foreman and a long-term employee, testified that
he also spoke to Diaz concerning the availability of
work. Placing their conversation at least I month before
the Respondent commenced hiring additional employees,
Matus stated that Diaz came to him and said he wanted
to work. Matus replied that there was no work and sug-
gested that Diaz speak to Dominguez. At that time, ac-
cording to Matus, he was well aware that no more em-
ployees were needed-"Because every person has their
post. I have been working there for many years, and I
know which post belongs to which people .... all the
people that's there is busy." Finally, Richard Ochoa,
who confined his testimony to October 15, stated that in
an ordinary year said date is the peak of the season and
that he did not think the Respondent was hiring at the
time as all required employees are normally working by
then.
With regard to the assertions of the above-stated wit-
nesses, it is instructive to once again refer to Respond-
ent's Exhibit 5, which establishes the following employ-
ment figures at the Respondent's packinghouse for Sep-
tember through November 1980:
Week Ending
09-06-80
09-13-80
09-20-80
09-27-80
10-04-80
10- 1-80
10-18-80
10-25-80
11-01-80
11-08-80
Employee
Complement
12
35
73
63
69
67
71
76
79
76
Furthermore, analysis of General Counsel's Exhibit 3,
the Respondent's total employee complement as of Octo-
ber 24, 1980, discloses that five individuals classified as
general laborers were hired during the week ending Sep-
tember 20; four such employees were hired in the week
ending October 4; and, in each of the following 3 weeks,
two general laborers were hired. Finally, Gorgani admit-
demand, the grades of fruit, unit costs, and the Federal Government's
citrus fruit allotment system. As to supply and demand, employment re-
quirements vary from week to week depending on the market for the
citrus growers' products. If their return is low, the growers will not
grow fruit. As a consequence, with reduced volume, the need for em-
ployees lessens. With regard to the grades of fruit, early in the season
grade is not an important consideration, resulting in a reduced employee
demand. However, as the season progresses more pickers and graders are
needed to cull the poor quality fruit. Regarding the Respondent's unit
costs, Gorgani testified that "as the number of employees increases. the
unit cost increases. And as the number of employees decreases, the unit
cost decreases." He further explained, "if the unit cost is higher, the
charges to the growers is going to be higher.... Since the ... com-
modity . . . is such a margin profitability, we have to watch it constant-
ly, the number of employees we got, to drop our charges; therefore, the
return to the grower is going to be more." As to the government allot-
ment system, each packinghouse receives a "marketing order" which
"tells us how many units we can pack and ship domestically. If we pack
more units than that, we are not allowed to ship it." According to Gor-
gani, the interaction of the foregoing factors makes hiring and firing ut-
terly unpredictable and often results in hiring or firing done without
preparation.
703
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ted that no records exist regarding the availability of
work on any one particular day.
Asked whether he would have rehired Diaz had there
been work available, Dominguez testified, "I would have
hired him if I could have have had a chance to talk with
[Richard Ochoa] first, because the previous year ...
Mr. Ochoa told him to do that certain job . . . and he
didn't want to do it, and he tried to pick up a fight with
him." Also, Diaz quit the preceding season, ". . . and
. . . they take into consideration if he quits that season
without letting me know . . . that put us in a bind right
away, because we don't know if he's coming back or not
* ..then that put the rest of the guys ... to work more
harder than they're supposed to."" Although Gilberto
Matus described Diaz as not a good worker and a com-
plainer, asked by me whether Diaz' work, putting aside
the alleged "fight" and the fact that he quit the previous
season, was acceptable, Dominguez answered, "I would
say work okay. You know, sometime he complained
that, you know, tell him to pick up fruit from the floor
that falls on, and some day he complain, but, you know,
we didn't think too much of it, really."'2
As to the incident involving Richard Ochoa and Diaz,
Ochoa testified that, on a day in May, he almost engaged
in a fight with Diaz after the latter refused to pick up
oranges from the packinghouse floor. "I asked him to
pick up the oranges." Diaz responded, "'Well, the hell if
I'm going to pick up oranges.' He said, 'If you don't like
it, give me my check right now."' Thereupon, according
to Ochoa, Diaz began slamming a fist into his other
hand. "Well, I told him that it was his job to carry the
order that we had given him." Diaz repeated that, if
Ochoa did not like his conduct, Ochoa should get Diaz'
check. Ochoa just walked away, and Diaz never both-
ered to clean up the oranges. During cross-examination,
Ochoa testified that the incident occurred at 8 p.m. and
no later; however, after being confronted with his sworn
pretrial affidavit, Ochoa admitted stating that the inci-
dent had, in fact, occurred 2 hours later-at approxi-
mately 10 p.m. Juventino Matus also testified as to this
incident, stating that "[Diaz] was given orders that he
didn't want to do it, he wanted his check and he was
saying words," curse words. Contradicting Ochoa as to
the time of day, Matus said, "We were getting ready to
get out and the sun wasn't down yet. Or maybe it was
going down a little bit." Although the length of the
workday that day was unclear in the record, Matus ad-
mitted that Diaz often became tired during work and
that the hours often lasted from 7 a.m. until 9 p.m. Also,
Dominguez admitted that on occasion the workers
worked long hours. Finally, Diaz did not deny the inci-
dent.
2. Analysis
The amended complaint alleges that Juan Diaz was
not rehired by the Respondent in violation of Section
I' Asked during cross-examination whether he told Diaz that if a job
existed, he (Domniguez) would have rehired Diaz, Dominguez respond-
ed, "After checking with Mr. Ochoa first." Asked if he said this to Diaz,
Dominiguez answered in the affirmative.
" During cross-examination, Dominguez admitted that many other
workers complained about the work.
8(a)(1) and (3) of the Act. In support, the General Coun-
sel argues that the Respondent failed to rehire Diaz,
from the date of his initial visit to the packinghouse after
returning to the Yuma area, "because . . . it knew, or
suspected, that Diaz was a union supporter." In contrast,
the Respondent's attorney asserts that there is no evi-
dence that any supervisor had knowledge of Diaz' union
activities and that he was denied re-employment solely
"because there were no job positions open on the day he
arrived." Moreover, the General Counsel argues, if Diaz
were again denied employment a week or two later, "it
would have been based solely on his poor past work
record, and the fact that he left his job without notice in
May of 1980."
A determination of the legality of Diaz' discharge is
governed by the traditional precepts of Board law in
8 (aX1) and (3) discharge cases, as modified by the
Board's decision in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (Ist Cir. 1981). Thus, in order to es-
tablish a prima facie violation of Section 8(a)(l) and (3)
of the Act, the General Counsel must establish (1) that
the alleged discriminatee engaged in union or other pro-
tected concerted activities; (2) that the employer had
knowledge of said activities; (3) that the employer's ac-
tions were motivated by union animus; and (4) that the
discharge had the effect of encouraging or discouraging
membership in a labor organization. WMUR-TV, 253
NLRB 697, 703 (1980). Further, the General Counsel has
the burden of proving the aforementioned by a prepon-
derance of the evidence. Gonic Mfg. Co., 141 NLRB 201,
209 (1963). While the aforementioned analysis was easily
applied in cases in which the employer's motivation was
straightforward, conceptual problems arose in which the
employer's motivation was involved-the presence of
both a lawful cause and an unlawful cause for the dis-
charge. In order to resolve this ambiguity, in Wright
Line, above, the Board established the following causa-
tion test in all 8(a)(l) and (3) cases involving employer
motivation. "First, we shall require that the General
Counsel make a prima facie showing sufficient to support
the inference that protected conduct was a 'motivating
factor' in the employer's decision. Once this is estab-
lished, the burden will shift to the employer to demon-
strate that the same action would have taken place even
in the absence of the protected conduct." Id. at 1089.
Two points are relevant to the foregoing test. First, con-
cluding that the General Counsel has established a prima
facie violation of the Act, the Board will not "quantita-
tively analyze" the effect of the unlawful motive. The
existence of such is sufficient to make a discharge a vio-
lation of the Act. Id. at 1089 fn. 14. Second, while appar-
ently warranting the identical analytical approach, pre-
textual discharge cases should be viewed as those in
which the "defense of business justification is -wholly
without merit." Id. at 1084 fn. 5.
What should be clearly perceived by the parties herein
is that a determination as to whether Diaz was ulawfully
denied reemployment by the Respondent is entirely de-
pendent on the credibility of the witnesses, in particular
that of the alleged discriminatee. Thus, if Diaz is cred-
ited that Dominguez stated that he (Dominguez) would
704
SUN COUNTRY CITRUS, INC.
not rehire Diaz because the latter signed a union card,
such conclusively establishes not only that the Respond-
ent had knowledge of, or suspected, Diaz' union activi-
ties, but also that Dominguez was motivated by Diaz'
union activities in refusing to rehire him and, as a conse-
quence, that the asserted reasons for not rehiring Diaz
were a sham and patent fabrications. My task in resolv-
ing credibility is complicated by the fact that Juan Diaz
was a most unimpressive witness, seemingly incapable of
coherently explaining himself and with portions of his
testimony (particularly concerning why he was so insist-
ent and certain that his final visit to the Respondent's
packinghouse in search of work was on Friday, October
15) hoplessly confusing. However, this is not to say that
I found Diaz to be dishonest or lacking in candor. To
the contrary, I believe that he related his testimony in a
forthright and candid manner and that my difficulties
with such mainly resulted from Diaz' lack of literacy.
George Dominguez also appeared to be a rather un-
impressive witness; however, in contrast to Diaz, his de-
meanor, I believe, was that of an individual who fabri-
cated significant portions of his testimony. Further, while
repeatedly asserting during direct examination that he
told Diaz in September he would hire him if work was
available, Dominguez did not testify that he qualified
such assurances with the statement that he would have
to speak to Richard Ochoa before offering Diaz work.
Yet, during cross-examination Dominguez stated that not
only would he have spoken with Ochoa prior to rehiring
Diaz but also he told this to Diaz. Such, of course, is
clearly inconsistent. Further, if, as he asserted, Domin-
guez told Diaz that no work was available, such would
not have been true and, as a defense to allegedly unlaw-
fully refusing to rehire Diaz, is inconsistent with the Re-
spondent's own records. In this regard, between Septem-
ber 13 and November 1, the Respondent's employee
complement increased from 35 to 79 workers and, during
that same period, no less than 15 employees, classified as
general laborers, were hired. As he performed all the
"male-oriented" jobs, Diaz presumably worked in this
job classification. In these circumstances, I credit the tes-
timony of Juan Diaz over that of George Dominguez.
Likewise, I place no reliance on, and discount, the testi-
mony of Juventino Matus, who stated that he spoke to
Diaz in September about work and told him there was
nothing available at Respondent's packinghouse; Richard
Ochoa, who testified that no hiring was being done
around October 15; and Gilberto Matus, who denied
Diaz' testimony as to his final meeting with Dominguez.
I believe each demonstrated, by his demeanor, a definite
bias in favor of the Respondent and tailored his testimo-
ny to comport with the Respondent's asserted defenses.
Based on my above-stated resolutions of the witnesses'
credibility, I conclude that the Respondent, through Do-
minguez, was aware of-or, at least, suspected-Diaz' in-
volvement in the union organizing campaign and that
Dominguez was unlawfully motivated in refusing to
rehire him. In this regard, I find that Diaz went to the
Respondent's packinghouse about September 22 seeking
work; that Dominguez told him, at that time, nothing
was available but that he should return; and that, over
the following 3-week period, Diaz visited the packing-
house three times a week but was informed by Domin-
guez that no jobs were available. I further find that Diaz
last visited the Respondent's facility on Friday, October
17, and that he was present when, speaking to Gilberto
Matus, Dominguez said he would not rehire Diaz as the
latter had signed a card for the Union. As to the above
date, I believe that Diaz was honestly confused as to the
date but not as to the day of this visit and, given its oc-
currence on a Friday during the second full week of Oc-
tober and the Respondent's own records which reveal
that lemons were packed on this day, that October 17
must be the correct date of Diaz' final meeting with Do-
minguez. Finally, I note that, by Diaz' own account, his
union activities were scant and discreet and that other
than his own version of his final meeting with Domin-
guez there is no record evidence of the Respondent's
knowledge of said activities. However, Diaz' testimony
which I have credited is sufficient to establish this essen-
tial factor and, while troubling, I shall not, and need not,
engage in speculation as to how Dominguez learned of
Diaz' limited involvement with the Laborers.
Based on the aforementioned credibility resolutions,
the state of the record is that Dominguez admitted to
Diaz that he was unlawfully motivated in refusing to
offer re-employment to the former. The effect of said ad-
mission is to render as fabrication the Respondent's prof-
fered defense for its conduct. In these circumstances,
careful examination of the validity of the various facets
of the Respondent's defense is seemingly not required.
However, inasmuch as credibility is of such overriding
significance herein, I note that the Respondent absolutely
failed to establish that no work was available for Diaz in
late September and early October. To the contrary, the
Respondent's records reveal that several general laborers
were hired during this time period, individuals who pre-
sumably performed work which Diaz was quite capable
of performing. While Gorgani asserted that the Respond-
ent's employment needs changed daily and decisions in
this regard were made with little preparation, I do not
accept the contention that no work was available on any
of the days on which Diaz sought work. The employ-
ment records seemingly refute this and even Gorgani ad-
mitted that no records exist which support his assertion.
As to the matters of Diaz having abruptly quit in May,
and of his uncontroverted insubordination to Richard
Ochoa, I note that Dominguez himself testified that his
alleged reason for not rehiring Diaz was a lack of work
and that he engaged in a blatant contradiction, stating
that he would have checked with Ochoa before rehiring
Diaz. In these circumstances, the latter two justifications
appear to have been afterthoughts.
Accordingly, based on the record as a whole, I find
that the Respondent failed and refused to rehire Juan
Diaz in violation of Section 8(a)(1) and (3) of the Act. H.
B. Zachry Co., 261 NLRB 681 (1982). Central Transport,
244 NLRB 656, 658-659 (1979), Victor Valley Hospital,
227 NLRB 513 (1976).'3
'3 Counsel for the Respondent argued that there is no record evidence
that the Respondent's refusal to rehire Diaz had the effect of encouraging
anyone to join or discouraging anyone from joining a labor organization
Continued
705
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Alleged Independent 8(a)(1) Violations
1. The facts
Counsuelo Vasquez testified that she was hired by Eva
Gross on October 21, 1980, as a "grader" and that her
job was to sort lemons which passed by her on a con-
veyor belt. Vasquez, who stated that she was acquainted
with Gross from having worked with her at another
packinghouse 3 years before, further testified that, on the
afternoon of October 21 at approximately 3 p.m., Gross
approached her work station and spoke while Vasquez
continued to work. ". . . [S]he asked me, do you know
that the Union's going around here, and I said no, and
she said yes. And then she said well, there's a Union
going around here. .... and then she said if the Union
gets here, are you going to vote for it, and I said . .. I
don't know . . . she told me to vote no for the Union.
She told me to vote no for the Union if I was going to
vote." Vasquez asked Gross which girls were supporting
the Unions; the latter pointed to four of them, naming
Maria Espinoza and Sara Espinoza but not the others.
Vasquez volunteered that her late husband had been a
member of the Laborers and asked why should she vote
no. "And she told me because they didn't want a Union
around them." Vasquez asked why, and Gross replied,
"... because the Union around was lying, and I said
lying about what?" Thereupon, Gross mentioned a
worker named Abelina Mendoza, identified her as one of
the girls who had been distributing cards on behalf of the
Laborers, and said that the Union had promised to help
her with her sick young child-putting him in a hospital.
Vasquez said that the Union would undoubtedly do that;
Gross said that Vasquez should not say such a thing, that
the Union was lying, that Vasquez should tell Mendoza
to vote no, and that "if I said that the Union was good
. . . I was going to be taken to the office."
Next, Gross said "that she hired me because she knew
me and she wanted me to help her." Vasquez asked,
"... help you with what? And then she told me that
she wanted me to tell the women to vote no for the
Union." Gross continued, explaining that "she wanted
my help because I had experience with the Union be-
cause I told [her] about my husband." Vasquez respond-
ed that she could not do what Gross requested. Finally,
Vasquez recalled, at one point in their conversation,
Gross said, "... you know .... if you vote for the
Union, they're going to fire you?" Vasquez asked who
Gross meant by "they," and Gross responded, ". . . the
Union." Nothing more was said during this conversation.
Later that same day, according to Vasquez, while she
and her daughter were eating dinner at her home, Eva
Gross came to her house and asked to speak to Vasquez.
They walked outside, and Gross said to the employee
that "she wanted me to give my experience to the girls
and that, therefore, no violation of Sec. 8(aXI) and (3) has been estab-
lished. Clearly, however, the natural result of this conduct would be to
have such an effect upon Diaz. In any event, the Supreme Court an-
swered counsel's assertion 30 years ago. In Radio Officers v. NLRB, 347
U.S. 17 (1954), the Court said ". . . an employer's protestation that he
did not intend to encourage or discourage must be unavailing where a
natural consequence of his action was such encouragement or discourage-
ment.... [Ilt is presumed that he intended such consequence. In such
circumstances, intent to encourage is sufficiently established." Id. at 45.
there .... And then I asked her what about. And she
said she wanted me to tell Hermilina Burke and Anna
Maria Espinoza . . . and Berta . . . to vote no for the
Union. And I asked her why, and she said because she
didn't want those girls to vote for the Union." Next,
Gross again raised the subject of Abelina Mendoza and
her sick child, saying "that the Union wasn't going to
help her with her little boy. And then she told me to tell
some of the people, too." Vasquez responded that she
could not do that, and Gross asked Vasquez how she
knew the Union was good. The latter explained that her
husband had been a member of the Laborers and that the
labor organization had helped pay his funeral expenses.
Gross replied, repeating her earlier-stated warning "[I]f
you tell [that to the girls] then you're going to be taken
to the office." The floorlady then left.
Abelina Mendoza, who was hired by Eva Gross in
September and worked as a lemon sorter, testified that
approximately I week before the NLRB-conducted elec-
tion, which was held on October 31, Gross approached
her at Mendoza's work station one morning and asked
that the employee accompany her into the restroom.
Mendoza was quite nervous, and Gross offered her a cig-
arette to calm her nerves. Thereafter, they spoke about
the imminent election and Mendoza's sick child. With
regard to the former, Gross said that if Mendoza was for
the Company and not the Union "my job would be
secure." Also "she told me that if the Union won, I
could not be late any more, or be off from work because
I would be fired."' 4 Next, Gross raised the subject of
Mendoza's status in the United States, asking if she pos-
sessed immigration papers. "I told her I had a working
permit." Gross replied that she really did not care if
Mendoza had such papers or did not but that "if I didn't
have any papers, the Union would not let me vote."
Eva Gross testified that, as the Respondent's floorlady,
she is responsible for placing the graders at different po-
sitions along the conveyor belt and making sure that not
too many citrus fruits are eliminated during the sorting
procedures. With regard to Consuelo Vasquez, Gross
denied ever having gone there in order to speak about
"the Union."'a She also generally denied ever interro-
gating the graders as to whether they supported "the
Union" or ever asking any grader to campaign against
"the Union." As to Abelina Mendoza, Gross denied
having asked the former if she had immigration papers,
telling Mendoza that if she did not have such papers, she
could not vote, or telling her that "the Union" would
not let her vote if Mendoza did not have immigration
papers. While denying interrogating employees on the
subject, Gross testified that employees did question her
about the Union, stating that Mendoza told her that she
did not know whether to vote yes and that she told
Mendoza "she had to make her own decision how to
vote." Finally, Gross averred that she was absolutely
'4 Mendoza testified that she was often late or absent as a result of her
child's illness.
15 She testified that she did go to Vasquez' house on two occasions-
once to lend Vasquez $25 for "gas money" and on another occasion to
give the employee her paycheck.
706
SUN COUNTRY CITRUS, INC.
"impartial" during the election campaign-"No, I didn't
think whether I would want it or not."' e
Employee Trinidad Gonzalez testified that she worked
for the Respondent from February 1980 until June
1980-"until the run was over." According to the wit-
ness, one day in May she had a conversation with Rich-
ard Ochoa in the area of the "dump," where freshly
picked fruit is deposited prior to processing. She was
working when Ochoa approached; "he asked me if I was
one of the leaders of the Union. . . . I told him that it
wasn't me, that there were several." Richard Ochoa
denied the entire incident. '
Finally, the following is alleged to constitute unlawful
conduct by the Respondent. Employee Marta Gutierrez,
who had worked for the Respondent for 3 years, testified
that 3 days before the election Eva Gross approached as
Gutierrez was leaving the ladies' restroom and said she
wanted to talk to the employee. According to Gutierrez,
"she told me that I was free to vote or not vote, but it
was a duty to vote, and that without ... the Union they
had already given us two more cents per box." Asked
when this increase had been given to the employees, Gu-
tierrez said such was given the previous year. Gross
denied the incident, and Michael Shrader, the Respond-
ent's accountant, testified that no such raise had ever
been given to the Respondent's sorters.
2. Analysis
The amended consolidated complaint alleges, and
counsel for the General Counsel contends, that the afore-
mentioned statements and remarks of Eva Gross and of
Richard Ochoa constitute violations of Section 8(a)(I) of
the Act. Both the General Counsel and the Respondent's
attorney recognize that resolution of the allegations de-
pends on my evaluation of the credibility of those wit-
nesses who testified on behalf of the General Counsel,
Vasquez, Mendoza, Gonzalez, and Guiterrez, against that
of the Respondent's witnesses Gross and Ochoa. "' Based
a6 Josephine Ochoa, the wife of Supervisor Richard Ochoa, testified
that she worked as a "sample girl" for the Respondent during the 1980
election campaign and that she never had a conversation about the Union
with Eva Gross at that time. Hilaria Garcia Lomeli, a sorter for the Re-
spondent for 5 years, likewise denied speaking to Gross about the Union
during the election campaign. Further, the parties stipulated that four
other graders would testify in a similar manner.
G1 Ochoa testified that he had been instructed not to ask such ques-
tions, and Gorgani testified that the Respondent utilized labor relations
experts in order to conduct the preelection campaign and that said indi-
viduals counseled supervisors as to what should and should not be said to
employees during the preelection period.
a6 Inasmuch as I do not deem their testimony relevant to whether
Gross or Ochoa violated Sec. 8(aXl) of the Act by their alleged state-
ments to employees Vasquez, Mendoza, Gonzalez, and Gutierrez, I shall
not pass on the credibility of the Respondent's witnesses Josephine
Ochoa or Hilaria Garcia Lomeli. Thus, assuming arguendo their credibil-
ity, the fact that Gross may not have spoken to either about the Laborers
or the Teamsters during the campaign may be reflective of such factors
as their relationship to supervisors (in the case of Ochoa) or their longev-
ity as employees (in the case of Lomeli). As to the stipulated testimony, I
do not perceive it relevant to the allegations if the testimony of the Gen-
eral Counsel's witnesses are credited. Again, the fact that Gross may
have spoken to some, but not all, of the employees may be reflective of
factors not discernible from this record-such as the witnesses' perceived
vulnerability to such conduct.
on observations of the demeanor of each, I found Vas-
quez, Mendoza, and Gonzalez to be honest and forth-
right witnesses and I credit the testimony of each herein.
In contrast, Gross impressed me as a witness who fabri-
cated her testimony and who did not know the meaning
of candor. More specifically, I was not impressed by her
asserted neutrality during the election campaign or by
her rather generalized denials of the allegations herein.
Further, I have previously stated my belief that Richard
Ochoa demonstrated a bias toward the Respondent,
which attitude tainted his testimony. I place no reliance
on the testimony of either Gross or Ochoa.
The foregoing credibility resolutions lead to the ines-
capable conclusion that the Respondent engaged in a
preelection campaign of unfair labor practices, designed
to dissuade susceptible employees from voting for the pe-
titioning labor organizations, the Laborers and the Team-
sters. In this regard, Richard Ochoa interrogated Gonza-
lez as to her role in the organizing campaign. Such con-
duct "without a legitimate purpose and adequate assur-
ances against reprisal . . is inherently coercive, and
hence violates Section 8(a)(1)." Vincent et Vincent of Al-
lentown Mall, 259 NLRB 1025, 1026 (1982); E. I. du Pont
& Co., 257 NLRB 139, 140 (1981); Major Cab Co., 255
NLRB 1383, 1388 (1981). Further, during her two con-
versations with Consuelo Vasquez, Eva Gross committed
several violations of the Act. Thus, after informing her
of the union organizing campaign, Gross asked Vasquez
if she intended to vote for the petitioning Unions. Such
interrogation is, of course, violative of Section 8(aXl) of
the Act. Gladieux Food Service, 252 NLRB 744, 746
(1980); Paceco, 237 NLRB 399, 400 (1978); Greenpark
Care Center, 236 NLRB 683, 697 (1978). At least two
times during their conversations, Gross pointed out indi-
viduals who, she stated, were union supporters. Such
statements have been held by the Board as tending to
create, in the minds of fellow employees, the impression
that the employer is engaging in surveillance of their
union activities and they are violative of Section 8(aXl)
of the Act. H. B. Zachry Co., supra; Hoover, Inc., 240
NLRB 593, 606 (1979); C & JMfg. Co., 238 NLRB 1388,
1391 (1978). Gross requested Vasquez to aid her during
the preelection campaign by relating her experiences
with the Union to fellow employees and telling them to
vote against it. Such importunate solicitations to employ-
ees to dissuade others from supporting a labor organiza-
tion are violative of Section 8(a)(l) of the Act. Vincent et
Vincent, supra; Weyerhauser Co., 251 NLRB 574, 578
(1980); Amber Delivery Service, 250 NLRB 63, 71 (1980).
On two occasions during their conversations, Gross
warned Vasquez that she would be taken to the "office"
if she, instead, spoke favorably about the Unions to em-
ployees and once Gross threatened that Vasquez would
be fired, by the Union, if she voted for it during the elec-
tion. Clearly, such statements constitute blatant threats of
retaliation for engaging in protected concerted activity
and are violative of Section 8(a)(l) of the Act. Wilkes-
Barre Wholesale Service, 246 NLRB 491 (1979); Cone
Mills, 245 NLRB 159 (1979).
With regard to her conversation with employee Men-
doza, the record establishes that Gross also committed
707
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violations of the Act. Thus, by linking Mendoza's job se-
curity to her support for the Respondent during the cam-
paign, Gross, in effect, threatened to fire the employee if
Mendoza supported, and eventually voted for, the peti-
tioning Unions-in violation of Section 8(a)(1) of the
Act. Cone Mills, supra. That Gross meant the above
comment as a threat is made blatantly clear by her com-
ment, which immediately followed-that, if the Unions
were victorious in the election, Mendoza no longer
could report late for work or take time off from work
because of her sick child. "IT]he Board has found that an
employer may not threaten an employee with the . . .
stricter enforcement of work rules as a consequence of
supporting a union." Such is violative of Section 8(a)(l)
of the Act. Colson Equipment, 257 NLRB 78, 81 (1981);
Mark Lines Inc., 255 NLRB 1435, 1439 (1981). Finally,
by raising the spectre of Mendoza's immigration papers
and commenting that the Unions might not permit her to
vote if she did not have them, Gross engaged in a rather
"thinly veiled" threat to notify the Immigration and Nat-
uralization Service in order to dissuade Mendoza from
supporting the Laborers-in violation of Section 8(a)(1)
of the Act. Sure-Tan, Inc., 234 NLRB 1187, 1191 (1978).
As to the alleged conversation between Gross and Gu-
tierrez in which Gross mentioned the upcoming election
and said Gutierrez should remember that the Respondent
had given the female employees a raise of 2 cents per
box without a union's intervention, assuming arguendo
the credibility of employee Gutierrez, I do not believe
Gross' comment rises to the level of a violation of Sec-
tion 8(a)(1) of the Act. Thus, rather than constituting an
"implicit promise" of a future raise, the statement of
Gross is no more than a statement of fact and a reminder
that employees were previously given a raise and that a
union's assistance had not been necessary. To find that
Gross implied a future raise if there were no union repre-
senting the workers would be to speculate as to such,
and I shall not do so. Accordingly, I do not believe that
the alleged comment would be violative of the Act, and
I shall recommend that the applicable paragraph of the
amended complaint be dismissed.
V. REMEDY
Having found and concluded that the Respondent en-
gaged in unfair labor practices within the meaning of
Section 8(a)(l) and (3) of the Act, I shall recommend to
the Board that it be ordered to cease and desist from en-
gaging in such acts and conduct. I shall also recommend
to the Board that the Respondent take certain affirmative
action in order to effectuate the policies of the Act. With
regard to Juan Diaz, I believe that the Respondent un-
lawfully refused to rehire him on or about October 1,
1981.1' Accordingly, I shall recommend that the Re-
spondent be ordered to offer him immediate and full re-
instatement to his former position or, if that job no
longer exists, to a substantially equivalent position with-
out prejudice to his seniority or other rights and privi-
19 Notwithstanding that the evidence of the Respondent's knowledge
of Diaz' union activities is on October 17, given that Dominguez was
continually telling Diaz that no work was available when such is refuted
by the Respondent's own records, I shall date the discrimination from
this date.
leges. I shall further recommend that the Respondent be
ordered to make him whole for any loss of earnings he
may have suffered as a result of the discrimination
against him by payment to him of the amount he normal-
ly would have earned from the date of the refusal to
rehire him, October 1, 1981, with backpay to be comput-
ed in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), and with interest as prescribed in Isis
Plumbing Co., 138 NLRB 716 (1962); and Florida Steel
Corp., 231 NLRB 651 (1977).
Vl. THE LABORERS' OBJECTIONS
Timely objections to the conduct of the October 31,
1980 election were filed by the Laborers and served on
the Respondent. Four of said objections address the alle-
gations of the amended complaint and concern conduct
occurring between the filing of the petition and the date
of the election and are violative of Section 8(a)(1) of the
Act. Thus, for the reasons set forth in my analysis of the
unfair labor practice allegations, I find Laborers' Objec-
tions 1, 2, 5, and 7 to be meritorious and recommend that
they be sustained. Dal-Tex Optical Co., 137 NLRB 1782
(1962). As no evidence was adduced in support of the re-
mainder, I shall further recommend that said objections
be overruled.
In view of my recommendations with respect to Ob-
jections 1, 2, 5, and 7 above, it is also recommended that
the results of the election held on October 31, 1980, be
set aside and that Case 28-RC-3849 be remanded to the
Regional Director for Region 28 for the purpose of con-
ducting a new election at such time as he deems the cir-
cumstances permit the free choice of bargaining repre-
sentation. Further, having found that the conduct of the
Employer precluded a fair election, I shall recommend
that the Regional Director include in the notice of elec-
tion to be issued in this matter the following paragraph
pursuant to the Board's decision in Lufkin Rule Co., 147
NLRB 341 (1964):2 °
Notice To All Voters
The election conducted on October 31, 1980, was
set aside because the National Labor Relations
Board found that certain conduct of the Employer
interfered with employees' exercise of a free and
reasoned choice. Therefore, a new election will be
held in accordance with the terms of this notice of
election. All eligible voters should understand that
the National Labor Relations Act, as amended,
gives them the right to cast their ballots as they see
fit, and protects them in the exercise of their right,
free from interference by any of the parties.
Upon the foregoing findings of fact, and the entire
record herein, I make the following
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
20 Said notices should be in English and Spanish.
708
SUN COUNTRY CITRUS, INC.
2. The Laborers is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of
the Act by refusing to rehire employee Juan Diaz.
4. The Respondent violated Section 8(a)(1) of the Act
by:
(a) Interrogating employees concerning their union
membership, sympathies, and activities.
(b) Creating the impression in the minds of employees
that it was engaging in surveillance of their union activi-
ties.
(c) Soliciting employees to campaign against the La-
borers and to dissuade their fellow employees to with-
draw support from the Laborers.
(d) Threatening employees with termination and other
reprisals because of their support for the Laborers.
(e) Threatening employees with harsher and more on-
erous working conditions because of their union activi-
ties.
(f) Impliedly threatening to notify the Immigration and
Naturalization Service in order to dissuade employees
from supporting the Laborers.
4. Except as found, the Respondent has not committed
any other unfair labor practices.
5. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act, I issue the following recommended
ORDER2
The Respondent, Sun Country Citrus, Inc., Yuma, Ari-
zona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to rehire laid-off or former employees be-
cause they engaged in union activities.
(b) Interrogating employees concerning their union
membership, sympathies, and activities.
(c) Creating, among its employees, the impression that
it is engaging in surveillance of their union activities.
(d) Soliciting employees to campaign against a union
and to dissuade their fellow employees from engaging in
union or other protected concerted activities.
(e) Threatening employees with termination and other
reprisals because they engaged in union or other protect-
ed concerted activities.
21 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(f) Threatening employees with harsher and more on-
erous working conditions because they engaged in union
or other protected concerted activities.
(g) Impliedly threatening to notify the Immigration
and Naturalization Service in order to dissuade employ-
ees from supporting a labor organization.
(h) In any like or related manner threatening, coerc-
ing, or restraining employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Offer Juan Diaz immediate and full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position without prejudice to his se-
niority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered as a
result of the discrimination against him in the manner set
forth in the section of this decision entitled "Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll and all other records necessary to determine the
backpay due under the terms of this Order.
(c) Expunge from its files all reference to the refusal to
rehire Juan Diaz and notify him that such has been done.
(d) Post at its Yuma, Arizona facility copies of the at-
tached notice marked "Appendix." 22 Copies of the
notice, 2 on forms provided by the Regional Director
for Region 28, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the amended complaint
be dismissed insofar as it alleges that the Respondent vio-
lated Section 8(a)(1) of the Act by implying that employ-
ees would receive a future wage increase if they voted
against the Laborers.
IT IS FURTHER RECOMMENDED that the election in
Case 28-RC-3849 be set aside and that said case be re-
manded to the Regional Director for Region 28 for pro-
ceedings not inconsistent with this decision.
22 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
23 Said notice should be in English and Spanish.
709