The Commercial Linen Exchange

National Labor Relations Board - Administrative Judge Opinions

Mar 3, 2004

28-CA-018708 (N.L.R.B. Mar. 3, 2004)

JD(SF)-18-04
Phoenix, AZ

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES

THE COMMERCIAL LINEN EXCHANGE,
A DIVISION OF THE SODEXHO CORPORATION

and Cases 28-CA-18708
28-CA-18807
28-CA-18948
UNION OF NEEDLETRADES, INDUSTRIAL
AND TEXTILE EMPLOYEES, AFL-CIO, CLC
(UNITE)

THE COMMERCIAL LINEN EXCHANGE,
A DIVISION OF THE SODEXHO CORPORATION

and Case 28-RC-6175

UNION OF NEEDLETRADES, INDUSTRIAL
AND TEXTILE EMPLOYEES, AFL-CIO,CLC
(UNITE)

Paul Irving and William Mabry III, Attys.,
Counsel for the General Counsel,
Phoenix, Arizona.
Barry S. Jellison, Atty., Council for the
Charging Party, San Francisco, California
Robert Deeney, Donald Gilbert, Alec Hillbo, and
Tom Kennedy, Attys., Counsel for Respondent,
Phoenix, Arizona.

DECISION AND RECOMMENDATION ON OBJECTIONS

Statement of the Case

Lana H. Parke, Administrative Law Judge. This matter was tried in Phoenix, Arizona
during 18 days of October and November 20031 upon an Order Consolidating Cases, Directing
Hearing on Objections to Conduct Affecting the Election issued August 11 and an Order Further
Consolidating Cases, Amended Second Consolidated Complaint and Notice of hearing (the
complaint) issued September 19 by the Regional Director of Region 28 of the National Labor
Relations Board (the Board) based upon charges filed by the Union of Needletrades, Industrial
and Textile Employees, AFL-CIO, CLC (UNITE), herein the Union or Petitioner. The complaint
alleges The Commercial Linen Exchange, A Division of the Sodexho Corporation (Respondent)
1 All dates herein are 2003 unless otherwise specified.

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engaged in conduct violating the National Labor Relations Act (the Act). 2 Objections to
Conduct Affecting the Results of the Election, filed by Petitioner on June 4 are, in part,
coextensive with the complaint allegations. Respondent essentially has denied all allegations of
unlawful conduct and conduct affecting the results of the election. The General Counsel seeks,
as a remedy to the alleged violations, a bargaining order under NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969).

ISSUES

1. Did Respondent violate Section 8(a)(1) of the Act by engaging in surveillance of
employees’ union activities, threatening employees with unspecified reprisals,
interrogating employees about their union membership, activities, and sympathies,
threatening employees by informing them it viewed their activities as a personal attack,
threatening it would engage in dilatory bargaining, threatening employees with loss of
benefits, improperly involving itself in union authorization card revocation, threatening
employees with discharge, providing food, beverages, company shirts and hats to
employees because they voted against the Union and in order to persuade them from
supporting the Union, informing employees that food and drink were supplied because
employees voted against the Union, thanking employees for voting against the Union,
inviting employees to seek alternate employment if they did not like working in a non-
union environment, promising employees a salary increase, improved drinking water,
improved job security, and other unspecified benefits as a result of their having voted
against the Union, upgrading its drinking water and cooling systems and changing its
safety glove distribution, in order to dissuade employees from supporting the Union,
promulgating an overly-broad and discriminatory no-solicitation rule by prohibiting
employees from speaking with other employees about the Union or about working
conditions, pressuring employees to, and assisting employees in, preparing requests to
revoke their authorization cards, informing employees that salary increases would be
frozen during collective-bargaining, telling employees they could not get improved health
insurance through collective-bargaining, and threatening employees with plant closure if
they selected the Union?
2. Did employees Isabel Avena (Ms. Avena), Elena Espinoza (Ms. Espinoza), Maria
Ramirez (Ms. Ramirez),3 Jesus Zarate (Mr. Zarate), and Sandra Gonzalez
(Ms. Gonzalez) engage in a strike of Respondent on May 1?
3. Did Ms. Avena, Ms. Ramirez, Mr. Zarate, and Ms. Gonzalez make unconditional offers to
return to their former positions of employment on May 1?
4. Did Respondent unlawfully fail and refuse to reinstate Ms. Avena, Ms. Ramirez, and
Mr. Zarate to their former positions of employment?
5. Did Respondent unlawfully discharge Ms. Avena, Ms. Ramirez, and Mr. Zarate?
6. Did Respondent, on May 2, unlawfully issue written discipline to Ms. Espinoza?
2 At the hearing Counsel for the General Counsel amended the complaint to include
additional 8(a)(1) allegations that Respondent coerced employees to revoke authorization
cards, threatened employees that salary increases would be frozen and that employees could
not get improved health insurance during and through any collective-bargaining, threatened
employees with plant closure if they selected the Union as their representative, and interrogated
employees. Counsel for the General Counsel also amended the complaint to allege Rudolfo
“Rudy” Contreras, Nicolas G. Galarza, Elaizar Rodriguez Valdez, and Luis Madrigal as agents
of Respondent. Respondent denied all amended allegations.
3 Ms. Ramirez, whose full name is Maria Argelia Gomez Ramirez testified under the name
Maria Argelia Gomez.

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7. Did Respondent, on May 2, unlawfully discharge Ms. Lozania?
8. Did Respondent, in mid-June, unlawfully orally reprimand Ms. Espinoza and employee
Yolanda Pena (Ms. Pena)?
9. Is the appropriate unit of employees for purposes of collective bargaining that set forth in
the Stipulated Election Agreement approved by the Regional Director on May 6:
All full-time and regular part-time production employees, seamstresses,
laundry workers, maintenance (janitors), stock workers I, house keeping
attendants I, linen room attendants, supervisors I (lead/hourly), and
shipping and receiving employees, employed by the Employer, at its
laundry facility located at 4445 South 36th Street, Phoenix, Arizona;
excluding all other employees, office clericals, mechanics, maintenance
mechanics, engineers, route drivers, drivers I, confidential employees,
guards and supervisors as defined in the Act.
10. Or, is the appropriate unit of employees for purposes of collective bargaining that set
forth in the complaint:
All full-time and regular part-time production employees, seamstresses,
laundry workers, maintenance (janitors), stock workers I, house keeping
attendants I, supervisors I (lead/hourly), and shipping and receiving
employees, employed by the Employer, at its laundry facility located at
4445 South 36th Street, Phoenix, Arizona; excluding all other employees,
linen room attendants, office clericals, mechanics, maintenance
mechanics, engineers, route drivers, drivers I, confidential employees,
guards and supervisors as defined in the Act.
11. From April 24 to April 30 did a majority of employees in the appropriate unit designate
and select the Union as their representative for the purposes of collective bargaining
with Respondent?
12. Is a bargaining order an appropriate remedy herein?
13. Did Respondent change its practice of supplying safety gloves to its soil sorter
employees without affording the Union an opportunity to bargain with Respondent?
14. Did Respondent change its practices by upgrading its drinking water supply system and
providing employees with Gatorade without affording the Union an opportunity to bargain
with Respondent?
15. Did Respondent change its method of scheduling employees without affording the Union
an opportunity to bargain with the Respondent?

On the entire record,4 including my observation of the demeanor of witnesses and after
considering the briefs filed by the General Counsel, Respondent, and the Charging
Party/Petitioner, I make the following

Findings of Fact

I. Jurisdiction

Respondent, a Delaware corporation, with an office and place of business located at
4445 South 36th Street, Phoenix, Arizona (the plant) has been engaged in business as a
provider of commercial laundry services hospitals in Phoenix and Tucson, Arizona. During the
12-month period ending May 5, Respondent derived gross revenues in excess of $500,000, and
during the same period, purchased and received at its facility goods valued in excess of
4 Counsel for the General Counsel’s unopposed post hearing motion to correct the transcript
is granted. The motion and enclosed corrections are received as ALJ exhibit 1.

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$50,000 directly from points outside the State of Arizona. Respondent admits, and I find, it has
at all material times been an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act, and the Union is a labor organization within the meaning of Section
2(5) of the Act.5

II. Alleged Unfair Labor Practices

A. The Union Organizing Campaign

The Union commenced its organizing campaign among Respondent’s employees on
about April 24 followed by a meeting of several employees at a local Days Inn. Meredith Stewart
(Ms. Stewart), organizer for the Union’s industrial laundry division, headed the campaign; other
union organizers included Daisy Pitkin (Ms. Pitkin) and Fernando Bribriezca (Mr. Bribriezca).
Thereafter, union representatives along with employee supporters held additional employee
meetings, talked of the Union and distributed union campaign flyers to employees at the plant,
made house calls to employees to encourage union support, and obtained signed authorization
cards.

In late April, union representatives and supporters painted in Spanish the message “Yes
we can, now or never, UNITE” on a twin bed-sheet sized banner (the banner). The Banner
figured in employee solicitation meetings and an employee demonstration described below. On
April 30, the Union filed a representation petition with Region 28 seeking certification in a unit of
all full and regular parttime production, maintenance, shipping, and receiving employees.

On May 1, union representatives and about 30 employee supporters met at a park near
the facility. The group drafted a list of work issues to present to Terry Lomax (Mr. Lomax), plant
manager. The one-page list of demands was written in Spanish and English (the petition), the
English version of which read:

We, the Sodexho (Commercial Linen
Exchange) workers, demand of our
Employers

• Respect on the Job!
• A More Just Salary!
• Affordable Family Health Insurance!
• Safer Working Conditions!
• An End to Production Pressure!
• An End to Favoritism!

W e w i l l s e e y o u a t t h e
N e g o t i a t i n g T a b l e ! !

UNITE!

5 Where not otherwise noted, the findings herein are based on the pleadings, the stipulations
of counsel, and/or unchallenged credible evidence.

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A group of employees (the demonstrators), planned to carry the banner and copies of
the petition to the plant at about 2 p.m. just before shift change, blowing whistles as they walked
through the hallway of the facility to alert coworkers to rally to the cause. Employees at work
who wished to show their support would join the demonstrators. The demonstrators en masse
would present the petition to Mr. Lomax in his office. The employee demonstration and petition
presentation are described hereafter.

On May 6, the Regional Director approved the parties’ Stipulated Election Agreement.
An election by secret ballot was conducted among Respondent’s employees on May 29. A
majority of Respondent’s employees voted against union representation.

B. Alleged Independent Violations of Section 8(a)(1) of the Act

1. Alleged Surveillance and Threat of Reprisal

The plant is located in a “rough area of town.” About 2 a.m., April 28, several union
representatives and a number of employees gathered outside the plant at a picnic table located
just beyond Respondent’s property line and about 40 feet away from a door where employees
commonly exited the plant. The group displayed the banner and waited for second shift
employees to exit the plant. Between 2:00 and 2:30 a.m., two off-duty employees in the group,
Mr. Gaitan and Alberto Castro (Mr. Castro), carrying union literature, went into the plant to use
the restroom. When the two left the plant, Connie Noble (Ms. Noble), production manager,
joined them and asked what was going on. Mr. Gaitan told her they were organizing a union
and waiting to see employees at shift change. Ms. Noble asked to see what the papers they
carried. Either Mr. Gaitan or Mr. Castro gave her copies.6

Mr. Gaitan and Mr. Castro rejoined the group at the picnic table. During this time,
Ms. Noble stood near the windows and doors of the plant looking out at the group. Later, after
about 30 to 35 employees had gathered around the picnic table, Ms. Noble and Rudy Contreras
(Mr. Contreras), leadman, came from the plant toward the table. Mr. Bribriezca asked
Ms. Noble if he could do anything for her. Ms. Noble said, “I’m just here to see who’s here.”
The two then withdrew, and the union representatives and supporters continued speaking with
employees. Mr. Bribriezca testified he saw Ms. Noble standing between two buildings making
“some type of writing motion.” Visibility was reduced as it was “really early in the morning,” and
still dark outside, but Mr. Bribiezca inferred Ms. Noble wrote down the names of employees
gathering with union representatives. The evidence is insufficient to permit me to adopt such an
inference.

2. Alleged Threat of Discharge

On May 1, an employee in-plant, prounion demonstration (the demonstration, described
below) occurred just at the 2 p.m. quitting time of production employee, Elena Espinoza
(Ms. Espinoza). Ms. Espinoza turned off her machine and joined the demonstrators. She and
demonstrator Anamaria Caranza (Ms. Caranza) testified that after Mr. Gaitan tried to present a
6 Ms. Noble denied seeing Mr. Gaitan at all that evening; she said Mr. Castro gave her
copies of a union flyer and card. Although Mr. Gaitan denied giving Ms. Noble copies of the
literature, saying she took it from Mr. Castro without permission, his Board affidavit states, “I
gave her one of each thing.” His affidavit account unfavorably impacts his testimony concerning
this confrontation, and I conclude the General Counsel has not proven that Ms. Noble “grabbed”
any union literature from any employee.

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petition to Mr. Lomax (as described below), Mr. Lomax spoke to employees through a translator,
Ms. Espinoza said he told employees, “There’s going to be no work.” According to
Ms. Caranza, he said those involved in the demonstration would be fired. Ms. Espinoza
understands a little English but relied primarily on the translation and coworker reports of what
Mr. Lomax said. Ms. Espinoza and Ms. Caranza’s testimony regarding Mr. Lomax’s statements
on that occasion was such an amalgam of dubious coworker reports and inferences that I
cannot give it weight.

3. Informing Employees That Union Activities
Were Viewed as a Personal Affront

Between April 30 and about May 19, Respondent held meetings with small groups of
employees and showed them an antiunion video (video meetings).7 At a video meeting on
May 1, following the demonstration, Mr. Lomax and Sonia Soto Garcia (Ms. Garcia),8
Respondent’s human resources manager, met with a group of employees. With Ms. Garcia
interpreting, Mr. Lomax said he was saddened and hurt by the employees’ conduct, that in his
28 years with the company he had never seen anything like that, and he could not understand
why it was happening to him. On later occasions, Mr. Lomax, who admittedly took employees’
organizing efforts personally, told employees he was surprised they had reached out to a third
party and not to him, that he had always been there for employees.

After reporting to work on May 2, Mr. Lomax and Ms. Garcia met with Ms. Espinoza and
issued her a written warning, as described below, for turning off machines during the
demonstration. During the meeting, Mr. Lomax said he had not done anything to employees,
that it had been just a couple of days since a birthday party had been held for him and asked
why employees were doing this.9

4. Statements Made at Video Presentations

During the video meetings, either before or following the video presentation, Ms. Garcia
and/or Mr. Lomax and other managers spoke to employees. Ms. Garcia told employees that
during negotiations wages would be frozen, but any wage increase reached pursuant to
bargaining would be made retroactive.10 Mr. Lizarraga testified Ms. Garcia said the Union was
not good for the people, all it did was take money; if it came in all benefits would be frozen, and
Respondent would not give doughnuts, ice cream, or a Christmas party to employees.11
However, under cross-examination, Mr. Lizarraga agreed Ms. Garcia had said Respondent
would have to negotiate for a contract, the process would take some time, and during
7 The General Counsel does not allege the video showings to have violated the Act.
8 Witnesses referred to Ms. Garcia as Sonia Soto. As she prefers Garcia, I have used that
name throughout this decision.
9 Counsel for the General Counsel also infers from Ms. Espinoza’s testimony that Ms.
Garcia warned her not to go around talking. However, I find the following testimony too
convoluted to permit me to draw any such inference:
Ms. Espinoza: She gave me this paper. She said that I wouldn’t be going around so that
she wouldn’t, so that I wouldn’t go around having any more problems, so that
I wouldn’t be going around talking, so I wouldn’t have to be doing anything.
10 Respondent reviews each employee annually. The points achieved on the review dictate
employees’ wage increases, the maximum of which is four per cent.
11 Respondent sometimes provided food and drink for special occasions including holidays
and to reward safety goal attainment.

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negotiations, Respondent could not change benefits and salaries. Other employees testified
Ms. Garcia said Respondent could give no raises upon unionization, and Mr. Lomax would
prefer to close the plant rather than accept the union. Much of the employee testimony of what
was said was based on unwarranted inferences or employee consensus of what was said and
not fully reliable. I do not find, therefore, that Ms. Garcia said Respondent would withdraw any
benefits upon unionization or that she threatened plant closure.

5. Respondent Involvement in Authorization Card Rescission

At some video meetings, after showing the video, Ms. Garcia described the union
authorization card as a blank check. She told employees if they wanted information on how to
retrieve their authorization cards they should come to her. Beginning after May 1, Respondent
posted a paper on its bulletin boards, which advised employees that those who regretted
signing union authorization cards could ask the Union to return them, gave instructions on how
to do so, and invited employees to see Ms. Garcia for assistance. When requested, Ms. Garcia
furnished pre-printed examples of wording employees could use in requesting return of their
cards, and some employees completed return requests in her presence. Ms. Garcia collected
revocation requests from some employees and gave them to Ms. Grate for forwarding to the
Board’s regional office or the Union.

6. May 10 or 11 Meeting between Mr. Gaitan and Mr. Lomax

In early May, Mr. Gaitan decided to resign from Respondent’s employ. He called
Mr. Lomax and asked to meet with him. On May 10 or 11, when Mr. Gaitan returned to the
plant while off duty, Mr. Lomax asked to speak with him. Mr. Gaitan joined Mr. Lomax, Lupe
Figgins (Ms. Figgins, Respondent’s comptroller), and Ms. Garcia in the conference room.
Mr. Gaitan told them he was planning to resign. According to Mr. Gaitan, Mr. Lomax asked him
why he was doing it (referring, Mr. Gaitan supposed, to his union support), saying he was a
good worker and that Mr. Lomax had never expected that from him. Mr. Gaitan also testified
that Ms. Garcia said the company could not prohibit him from supporting the Union and that
Mr. Lomax said, “You know what you’re doing; we cannot tell you not to do it.” Respondent’s
witnesses gave extensive testimony regarding this conversation to the effect that Mr. Gaitan
offered to support Respondent’s antiunion campaign in exchange for money. I do not find it
necessary to detail that testimony in light of my credibility determination. In resolving credibility,
I have considered witness demeanor. I found Mr. Gaitan generally to be a very credible
witness, forthright and sincere. However, I observed his manner altered during his testimony of
this meeting. Unlike his manner in giving earlier testimony, he appeared to me to be
uncomfortable. Moreover, I note Mr. Gaitan failed to mention the incident when he gave an
affidavit to the Board three or four days later, which is inexplicable if the conversation went as
related. Therefore, I do not accept Mr. Gaitan’s version of this conversation.

7. Ascribing Discharge of an Employee to Antiunion Animus

Employee Juan Uribe Castellanas (Mr. Castellanas) testified that a few days before the
election, Ms. Garcia told him she had fired employee Carlos Gonzalez because he supported
the Union. No employee by that name has worked for the company. Mr. Castellanas said the
employee he knew as Carlos Gonzalez was an open union supporter, lived near him and was,
indeed, fired.12 When asked to recount his conversation with Ms. Garcia in detail,
12 The Region dismissed an 8(a)(3) charge alleging an unlawful discharge of an individual
named Carlos Gonzalez.

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Mr. Castellanas testified Ms. Garcia came to him in the cafeteria and without preamble
announced, “I ran Carlos off.” Mr. Castellanas’s alleged response, also without explication, was
to tell Ms. Garcia he was not going to be intimidated; he was still going to support the Union.
Absence of contextual details makes the alleged interchange inherently incongruous.
Accordingly, I cannot credit Mr. Castellanas’s account of his conversation with Ms. Garcia
regarding Respondent’s discharge of Carlos Gonzalez or any employee Mr. Castellanas may
have known by that name.

8. Events at the May 29 Vote Tally

Following the election on May 29, the Board conducted a ballot count at the plant
attended by representatives of the parties and a number of employees. When the results were
announced, Ms. Garcia, in exuberant elation, skipped about the room shaking pom poms and
bumped into Leticia Alvarez’s eleven-year-old child.13 According to Ms. Espinoza, Ms. Garcia
said employees were to leave, that Respondent was antiunion and was going to fire them.
Ms. Espinoza said “they” got the other employees to tell us to leave, to go. On cross-
examination, she said “someone” said “they” were running employees off and going to fire them
all, that several individuals said that, including secretaries, coworkers, Ms. Garcia, and
Mr. Lomax. However, she also testified that she did not hear anything from Ms. Garcia or
Mr. Lomax. Ms. Espinoza’s Board affidavit is silent regarding such statements. While
Ms. Espinoza may have heard threatening statements in the melee following the ballot count, I
find her testimony too inconclusive to permit me to charge either Ms. Garcia or Mr. Lomax with
the statements.14

9. The Post-Election Celebrations

On May 30, the day following the election, Respondent hosted a series of celebrations in
its cafeteria, providing food and drink for all employees during extended paid break periods.
According to Ms. Garcia, the celebrations were partly for the outcome of the election and partly
to thank employees for putting up with the pressure and tension surrounding the election. The
May 30 festivities differed from Respondent’s former provision of food and drink for special
occasions in the extension of break time.15 The cafeteria was decorated with balloons and
signs that read, variously, “Thank you for voting no,” “No to unions,” “Thank you. We are
United.” Secretaries informed participating employees the celebrations were to thank them for
voting against the Union, and Ms. Garcia translated supervisor appreciation that employees had
not brought in a third party. With Ms. Garcia translating, Mr. Lomax and Ms. Grate spoke to the
assembled employees, thanking them for their votes. Ms. Grate said Respondent had obtained
several more hospital contracts, which assured abundant future work. In order to meet
increased commitments, employees would have to work together as a team. Employees
13 There is a dispute as to whether the child fell and/or cried, which I do not find necessary
to resolve. There is no evidence the incident was other than an unintentional touching;
Ms. Garcia was not disciplined for it.
14 Except for the alleged threat of discharge testified to by Ms. Espinoza, which I have not
credited, the General Counsel does not contend Ms. Garcia’s conduct at the election tally
violated the Act. Rather, Counsel for the General Counsel argues Ms. Garcia’s conduct and
Respondent’s failure to discipline her for it evidences disparate treatment in the discharge of
Ms. Lozania. That argument is addressed below.
15 Witnesses disagreed on the extent to which Respondent provided food and drink to
employees, but the evidence as a whole persuades me that Respondent consistently, though
infrequently, supplied food and drink on special occasions.

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unwilling to do so or who would not be happy like that should leave Respondent’s employment.
Mr. Lomax circulated among employees thanking them for voting no.16 Respondent tossed
company-embossed hats and visors to employees.

Ms. Noble echoed Ms. Grate’s teamwork statements in three or four safety meetings
conducted by Ms. Noble following the election. She told employees the company was going to
get a lot of new work; it was important for employees to work together; whatever went on before
the election was behind them, and if employees felt they could not work together, it was time to
look for other work.

10. Post-election Grant of Benefits

Sorting employees complained about the heat and drinking water in their work area. A
month or two after the election, Respondent installed a swamp cooler in the plant roof above the
sorting area. The swamp cooler had formerly been used to cool an air compressor at the plant
but had been unused for the preceding three or four years. Following the election, Respondent
also replaced three drinking fountains in the plant area with new ones. Prior to April, employees
had been required to use frequently washed protective gloves, which employees disliked
believing used gloves furnished inadequate protection. Respondent adduced evidence that
prior to its awareness of union activity, it found a competitive vendor to supply reusable gloves,
which were inexpensive enough to use as disposable gloves. Beginning in late April,
Respondent furnished employees new gloves daily.17 In years before 2003, Respondent
furnished employees with Gatorade or similar flavored drinks during very hot summer days and
weeks. Following the election, when the summer heat began in early June, Respondent
furnished Gatorade to employees consistently through the summer until Labor Day.

C. Alleged Violations of Section 8(a)(3) of the Act

1. May 1: Employee Presentation of Petition and Work Cessation

On May 1 as previously planned, the demonstrators, about 25-35 employees strong,
approached the plant through the driveway just before 2 p.m. They entered the plant through a
door at the top of an exterior flight of stairs on the North end of the facility, so-called the
16 These findings are a distillation of essentially corroborative testimony from several employees
who testified concerning Mr. Lomax and Ms. Grate’s statements at the celebrations.
Ms. Espinoza remembered their saying that for those few people who did not agree with how
things were run, it was time to leave. Yolanda Dominguez Pena testified Ms. Grate said if
employees were not happy there, they could look for a job elsewhere, but Mr. Lomax only
thanked employees. Iris Enriquez said Ms. Grate, through Ms. Garcia, told employees this was
now a time for new things, that there was going to be new work coming to the plant. With new
work coming, she wanted employees to work united, and if people did not feel they could be
happy like that, perhaps now was the time to look elsewhere. Ms. Grate did not mention the
Union, and Mr. Lomax only said, “Thank you.” Juan Uribe Castellanas, who speaks English,
testified Ms. Grate said there would be more work as the company had obtained three more
hospital customers, there would be more salaries, water for drinking, and for those employees
who did not feel they could unite and work together, who did not like the work, they could go find
another job.
17 Because employee testimony was inconsistent and unclear as to when the glove change
occurred, I accept Respondent’s evidence that its glove distribution practice was in the process
of being changed before it learned of its employees’ union activity.

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emergency door through which employees customarily entered and exited. Mr. Gaitan headed
the group and carried the petitions. Ms. Lozania and Guillermo Morales (Mr. Morales) followed
behind carrying the banner, inscribed with red lettering “WE WANT A UNION YES IT CAN BE
DONE.”18 After passing through the emergency door, the demonstrators, some of whom
possessed whistles, walked along a production hallway toward the office area. When
Ms. Garcia encountered the demonstrators coming along the hallway, Ms. Lozania and
Mr. Morales were in front with the banner. Ms. Garcia raised her hands in a stopping motion
and said, “Carmen, you can’t…” Ms. Lozania moved past her.19 Ms. Garcia directed a
secretary to call 911, and she reported a disturbance at the plant.20

As they passed the production area, several demonstrators blew their whistles. Hearing
the signal, Ms. Espinoza, who had just finished her production shift and turned off her
machine,21 blew a whistle to alert coworkers, joined the demonstrators, and proceeded with
them to the office. Sorting employees, Ms. Avena, Ms. Ramirez, Ms. Gonzalez, and
Mr. Zarate22 (the four sorting employees), with an hour or so left in their shifts, ceased work to
join the demonstration. Delayed by having to remove safety gloves and protective clothing, the
four sorting employees did not, however, join up with the demonstrators at that time.

After signaling the sorting employees by blowing whistles, the demonstrators, still led by
Mr. Gaitan, reached the office area. The full group did not fit within the reception area, and
some remained outside the entrance door of the reception area. Mr. Gaitan asked the
receptionist to call Mr. Lomax. Shortly thereafter, Mr. Lomax came into the office. Mr. Gaitan,
who speaks simple English, told Mr. Lomax employees wanted to talk about their “points.” He
proffered the petition, saying, “We are UNITE, and we are not scared.” Mr. Lomax, looking
shocked and hurt, declined to accept the petition. Mr. Gaitan put it on a nearby desk, and some
of the demonstrators exited the office through doors leading directly to the outside of the plant.

Mr. Lomax followed the demonstrators to the outside doorway and told them to leave.
As it was the normal time to pick up paychecks from an area adjacent to the front offices,
Mr. Gaitan said he was going to pick up his check. Along with other demonstrators, he went
back into the facility to where employees waited in line for their checks. Mr. Lomax directed the
receptionist to give the demonstrators their checks immediately. After receiving their checks,
they left the plant and walked back toward the driveway to meet with union representatives at
the entrance to the facility.

18 There was significant discrepancy in witness accounts of who carried the banner with
Ms. Lozania. The more reliable testimony establishes Mr. Morales as co-banner carrier.
19 Ms. Lozania’s conduct at this time formed the basis of disciplinary action against her, as
set forth in detail below.
20 I have accepted Respondent’s representation that the label on the 911 tape obtained from
the authorities noted two calls having been made from Respondent’s facility at the same time,
each lasting 1:58 minutes.
21 Company practice was that machines be shut down at shift completion, production
counted, and machines restarted by arriving shift employees. Although Ms. Espinoza was
inconsistent as to which machine she worked on that day, I find her testimony that she shut
down her machine as customary credible.
22 Mr. Zarate did not sort clothes but lifted bins in the sorting department. For convenience,
I refer to all four as sorting employees.

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As the demonstrators returned to the driveway entrance, the four sorting employees
exited the plant and joined them.23 The four sorting employees asked the demonstrators what
had happened. The demonstrators said Mr. Lomax would not listen to them, and the sorters
should return to work. The four sorting employees returned to the plant and upon arriving at the
emergency door found Mr. Lomax standing at the top of the steps. The four sorting employees
told Mr. Lomax they wanted to go back to work. Speaking to employees in English translated
into Spanish by an employee, Mr. Lomax refused to let the employees enter the plant and told
them they could not return to work.24

The four sorting employees rejoined the demonstrators, and the group returned to the
union representatives at the driveway entrance.25 They reported Mr. Lomax would not let them
return to work. Union representatives said Respondent had to let them return to work and
directed them to return to the plant and again tell Mr. Lomax they wanted to work.

Accompanied by Mr. Gaitan and several other demonstrators, the four sorting employees
returned to the emergency door. Mr. Gaitan, who audio recorded the ensuing interchange,
urged employees to knock on the door and say they wanted to work. The four sorting
employees did so and chanted, “We want to work. We want to work.” Mr. Lomax, whose
responses were translated into Spanish, answered, “No, they walked off. They left the job.
They walked off. There’s no work. No, they left.” The employees continued chanting their
desire to return to work, and Mr. Lomax continued to refuse, saying the employees had left.26

After Mr. Lomax’s second rebuff, the group of employees except for Ms. Gonzalez
returned to where the larger group of employees and union representatives waited. Instead of
joining the union representatives, Ms. Gonzalez detoured to the office to get her paycheck.
After picking up her check and realizing Mr. Lomax was not there, she asked her leadman,
23 Testimony was inconsistent as to where the demonstrators exited the plant and whether
the four sorting employees joined with the demonstrators before or after they exited the plant. I
have concluded that reliable testimony places the initial meeting between the demonstrators
and the four sorting employees outside the plant.
24 I do not accept the testimony of Mr. Lomax and other Respondent witnesses that
Mr. Lomax said the employees had been permanently replaced. I found the sorting employees’
accounts credible. Moreover, no such statement is reflected by the tape recording of the
second attempt to return to work, which I consider to be the best evidence of what was said,
and if it were not stated in the latter confrontation, it is unlikely it was said in the first. I also do
not accept Mr. Zarate’s testimony that Mr. Lomax’s translator said the four employees were
fired. It was not clear whether Mr. Zarate heard that from the translator or a coworker.
25 Testimony was inconsistent as to the time lapse between the demonstrators entering the
plant and returning to the union representatives. The testimony as a whole convinces me the
time was brief, certainly less than fifteen minutes.
26 This exchange is reflected by the audio tape recording, which was received into evidence.
The tape ends when an unidentified Spanish-speaking voice says, “Adios, this is where it ends;
it stays here.”

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Eliazar Rodriguez, if she could return to work. When he agreed, she went to her workstation
and completed her shift. Fifteen minutes had elapsed between the time she had left her
workstation and returned.27

News that Respondent had refused to permit three of the four sorting employees to
return to work spread among employees, many of whom expressed to union representatives
their disquiet that coworkers had been “fired.”28

Because the timing of events is crucial to the issues surrounding the sorting employees’
offers to return to work, Mr. Lomax’s testimony concerning his actions after refusing to accept
the petition is recounted in detail:

Before the sorting employees first offered to return to work, Mr. Lomax spoke for two to
three minutes with employee, Avena Sarmiento, who volunteered that several sorting
employees had left their work stations and asked if Mr. Lomax needed to get hold of
leadman, Rudy Contreras. Mr. Lomax told her to have Mr. Contreras call him and went
to the sorting area for five to fifteen minutes. While there, Mr. Lomax spoke to leadman,
Eliazar Rodriguez, who brought Mr. Lomax the soil sorting staffing sheet and told him
four employees were absent from their work stations. Together, they marked the names
of the missing workers, noting that Mr. Zarate, Ms. Ramirez, Ms. Avena, and Susano
Ayala were not at their work stations.29 They did not mark Ms. Gonzalez’s name.30
Mr. Lomax told Eliazar to get some people to take their places and asked employee
Carlos Leon who was nearby how late he could work. After this exchange, Mr. Lomax
was paged for a telephone call, which he took near the receiving dock. The call was
from Mr. Contreras‘s daughter, Vicki Contreras (Vicki). Mr. Lomax told her he wanted
workers, and she said she had three unemployed persons with her then. Mr. Lomax
asked if they had legal work documents, and when she said they did, he said they were
27 In cross-examination, Ms. Gonzalez assented to counsel’s question, “You went out the
employee exit door, and then almost immediately you went back in through the door by Sonia’s
office?” After reviewing Ms. Gonzalez’s testimony, I conclude her agreement to counsel’s
suggested scenario does not invalidate her original testimony. I don’t believe she understood
her answer might be construed to negate her earlier testimony or that “almost immediately” was
arguably inconsistent with her testimony of having twice solicited from Mr. Lomax an opportunity
to return to work.
28 Following the May 1 events, although the Union continued campaigning among
Respondent’s employees, it obtained only four additional authorization cards.
29 Susano Ayala had been given permission to leave early.
30 The failure to mark Ms. Gonzalez’s name shows, as Respondent agrees, that she was
present at her workstation when Mr. Lomax went to the sorting area.

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hired; they were to report to the plant immediately, and Ms. Garcia would fill out their
paper work for them.31 After the phone call, several plant employees offered their
services to cover for the absent sorting employees, which Mr. Lomax accepted.32
Thereafter, while walking back to his office, Mr. Lomax observed three employees,
Mr. Zarate, Ms. Ramirez, and Mr. Avena, approaching the emergency door. Mr. Lomax
detoured to the emergency door and intercepted the employees as they walked up the
steps to the entrance. The employees asked to return to work, and Mr. Lomax
refused.33

2. Replacement of Strikers and Offers of Reinstatement

Employee hiring is primarily within the control of Ms. Garcia who reports to the general
manager, Bonnie Grate. Ms. Garcia approves who is hired, sometimes checking with Ms. Grate
or Mr. Lomax, if applicants are previous employees. Before being hired, each applicant
completes an application and undergoes an interview with Ms. Garcia, the two procedures
usually taking about 30 minutes. After accepting the position, an applicant completes the
required I-9 form, gives proof of legal status, and fills out employment forms. Pursuant to Vicki’s
instructions that they should report to the plant and fill out paperwork for employment, Jonathan
Bourassa, Tom Sardinas, and Rigoberto Valencia arrived at the plant on the afternoon of May 1.
They filled out employment documents, and met with Ms. Garcia. Ms. Garcia did not tell them
they had been permanently hired. They received preliminary employment training and began
working as first shift soil sorters the following day.

Between May 1 and June 2, Respondent did not communicate with Mr. Zarate,
Mr. Avena, and Ms. Ramirez. By letters dated June 2, Respondent wrote to them as follows:

We write about the status of your position with Commercial Linen Exchange. On May 1,
2003, you left your job during your shift and refused to return to work despite requests
that you do so and despite warnings that the Company would hire permanent
replacements.

As you know, by the time you offered to return to work, the Company had hired another
individual to fill your former position. We are writing to you to be certain that you
understand your rights. As a replaced employee, you are entitled to be considered for
preferential rehire into opportunities that the Company desires to fill. Please contact me
to verify that you are interested in re-employment opportunities and to be certain that the
Company will know how to contact you in the event that jobs become available.

31 Regardless of what Mr. Contreras’s daughter may have told Mr. Lomax, the three
individuals, whom Respondent hired later that afternoon, Jonathan Bourassa, Tom Sardinas,
and Rigoberto Valencia, were not with her at the time of the conversation. After her
conversation with Mr. Lomax, Vicki telephoned them at Tom Sardinas’s home and told them if
they wanted jobs, they should go to the plant, that people had walked off the job and
Respondent needed replacements; if they went and filled out the paperwork, they would have
jobs.
32 Four employees each worked 1.5 hours the afternoon of May 1 to complete the absent
sorters’ work.
33 As set forth above, I have declined to accept Mr. Lomax’s testimony that he told
employees he had hired permanent replacements for their positions.

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When Tom Sardinas quit his employment with Respondent in late May or early June,
Respondent did not offer his shift to any of the sorting employees. By letters dated June 19 to
Ms. Avena and Mr. Zarate and July 3 to Ms. Ramirez, Ms. Garcia wrote as follows:

As of today I have one 2nd shift soil sort position available. The starting times for this
shift are 4:00 p.m. on Thursday, Friday and 2:00 pm Saturday and Sunday. The
scheduled days off are Monday, Tuesday, and Wednesday. Your wage would be
$7.45/hour (the starting rate plus an adjustment for previous experience).

Please be advised that this position has been offered to all people on priority hire status,
and will be given to the first person that contacts me…

The initial reinstatement offers were at hourly rates lower than employees had previously
earned though with adjustment for prior service and without restoration of seniority. Mr. Zarate
did not accept a proffered position because of physical impairments. Respondent required
Ms. Ramirez and Ms. Avena to complete employment applications and other employment
forms, and Ms. Garcia told Ms. Ramirez she could not keep her accumulated sick leave. Later
Respondent permitted the recalled employees to retain their pre-replacement seniority.

3. Discharge of Carmen Lozania

Respondent terminated Ms. Lozania because of reported misconduct toward Ms. Garcia
on May 1, during the demonstration. A number of witnesses testified concerning the alleged
confrontation between Ms. Garcia and Ms. Lozania as follows:

Ms. Lozania’s testimony: Ms. Lozania and a fellow employee carried the banner while
Ms. Lozania held her child’s hand as well. At the commencement of the demonstration
and after a few employees, including the banner bearers, had entered the plant through
the emergency door, Ms. Garcia stopped them, saying, “Carmen, you cannot go in.”
Ms. Lozania said the employees just wanted to talk to Terry. When Ms. Garcia saw
other employees entering the plant behind the banner bearers, she said, “Oh my God,”
and left. Ms. Lozania neither pushed nor even touched Ms. Garcia. Neither Bonnie
Grate nor Connie Noble was present.

Ms. Garcia’s testimony: The demonstration came as surprise to Ms. Garcia. She first
knew of it when employees entered the plant. She saw Ms. Lozania and Mr. Morales
holding the banner. As Ms. Lozania came within a few feet of her, Ms. Garcia held up
her hands, palms out, and said, “Carmen, you can’t …” Without permitting Ms. Garcia to
finish her remonstration, Ms. Lozania shoved her aside with a sweeping motion of one
arm and continued toward the offices. Ms. Garcia told the receptionist to dial 911.
Ms. Garcia spoke to the 911 dispatcher, saying a riot of some sort was going on, that
about 20 to 25 employees were on the premises with a banner, and the company
needed someone to prevent the situation from getting out of hand. She did not say she
had been hit or physically touched. The police arrived after the group had dispersed.
Ms. Garcia did not file a police complaint.

Ms. Noble’s testimony: She saw Mr. Morales with Ms. Lozania. Standing about five feet
behind Ms. Garcia as the demonstrators approached, she saw Ms. Garcia hold out her
hands toward Ms. Lozania and saw Ms. Lozania brush her aside with a backhanded
sweeping gesture.

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Ms. Grate: Ms. Grate did not see Mr. Gaitan enter the plant; she saw Ms. Lozania enter
through the emergency door without any child.

Ms. Espinoza’s testimony: During the demonstration, she observed Ms. Lozania held a
child’s hand in one of hers and one end of the banner in the other. She saw Ms. Garcia
nearby but did not see Carmen hit anyone.

Ms. Caranza’s testimony: she participated in the demonstration, entered the plant
through the emergency door at the side of Mr. Gaitan, and walked beside him to
Mr. Lomax’s office. Ms. Lozania was in the group behind Mr. Gaitan when he presented
the petition. She observed Ms. Lozanio during the entire demonstration and saw her
holding the banner with one hand and her child with the other. She never saw her
release the banner or the child, and she never saw her strike Ms. Garcia. She first saw
Ms. Garcia and Ms. Grate at the “end of the office.”

Mr. Alvarado’s testimony: Ms. Lozania and an employee named Guillermo (last name
unknown) held the banner. Ms. Lozania also held a child’s hand. During the petition
procession to Mr. Lomax’s office, Mr. Alvarado preceded Ms. Lozania by about ten feet,
however he could see her the entire time.34 He saw no physical contact between
Ms. Lozania and Ms. Garcia.35

On May 2, Ms. Garcia reported to Respondent that Ms. Lozania had pushed her during
the demonstration. On that same day, about two hours into Ms. Lozania’s work shift, Ms. Grate
instructed Ms. Lozania to report to the office where Mr. Lomax, through an interpreter, told her
she was terminated because of her violent interaction with Ms. Garcia on the preceding day.36
Ms. Lozania asked that Ms. Garcia appear with her before Mr. Lomax to answer the charges,
but he refused. Mr. Lomax said he had several witnesses to the incident although he did not
name them. Ms. Lozania said she also had several witnesses, but she declined to identify them
because she “did not want him to know at that time,” fearing he could take reprisal action
against them. Mr. Lomax said she could appeal the decision to Ms. Grate. Mr. Lomax gave
Ms. Lozania a termination notice written in Spanish, the translation of which is, in pertinent part:

34 I cannot accept either Ms. Caranza or Mr. Alvarado’s testimony of having observed
Ms. Lozania during the entire demonstration. Both were well in front of Ms. Lozania during the
pertinent time. It is unlikely they saw all that occurred behind them. As an example of
Ms. Caranza’s lack of reliable observation, she testified she did not see either Ms. Garcia or
Ms. Grate until the demonstrators reached the office although both Ms. Garcia and Ms. Grate
were present during the demonstrators' march.
35 Although witnesses put Leticia Alvarez at the forefront of the Demonstration, and Counsel
for the General Counsel called her as a witness, she was not asked whether she saw any
confrontation between Ms. Garcia and Ms. Lozania.
36Ms. Lozania had no prior record of discipline. Respondent’s employee handbook describes
an investigatory suspension as a possible step in its disciplinary process. Respondent’s failure
to put Ms. Lozania on suspension pending investigation is not inconsistent with the handbook,
which provides for termination without exercise of prior constructive counseling options upon
violation of Respondent’s workplace violence policy. Ms. Lozania agreed that if an employee
shoved another, the employee would be discharged.

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On the 1st of May 2003 Carmen manifested an act of violence against Sonia Soto.
Carmen physically pushed Sonia Soto, and this was observed by several
witnesses…acts of violence are forbidden in the workplace…the company’s tolerance
level for any act of violence in the work force or work place is zero.

After her termination, with the assistance of Ms. Figgins, Ms. Lozania appealed
Respondent’s action to Ms. Grate. She did not tell either Ms. Figgins or Ms. Grate the names of
her witnesses. In connection with the appeal, Ms. Grate conducted an investigation of the
incident between Ms. Lozania and Ms. Grate. Ms. Grate prepared the following list of questions
for managers and leadmen to ask employees:

1. Were you on premise between 1:40 p.m. and 2:10 p.m. on Thursday, May 1?
2. Were you in a position to see the area between the ironers And the West wall (where
the door is)?
3. Did you see anyone carrying a banner or a sheet w/ writing on it?
4. Describe what you saw that person/those people do.
5. Did you see anyone pushing or shoving another person or each other?
6. If yes, was this in a friendly, playful manner, or in a threatening, aggressive manner,
or in some other manner?

Most employees questioned denied being in a position to see any such interaction.
Employee Mario Palacios answered that he saw Carmen and Guillermo carrying a sheet and
walking to the office but saw no pushing or shoving. Ms. Garcia wrote that she observed
individuals

[w]alking toward front office carrying a banner so I approached them and put my hands
up in a “stop” motion & said in Spanish ‘Carmen, this is not allowed on the company
premises.’ She shoved me back with her right arm and continued to walk toward the
front office. The other people kept walking. The second ‘middle’ person was Guillermo.
I didn’t see who the other person was…I was shoved out of the way by Carmen
Lozania…[i]n a threatening and aggressive manner.

Ms. Noble wrote that she,

saw Miguel with a sheet or something wrapped around him—then he took it & then
Carmen and Guillermo had it. I started to go to a phone to call for Terry
and…[Ms. Grate was] already on the floor. I saw [Ms. Grate] holding [her] hands up and
telling people not to come in that door and motioning to the office. I saw them push by
[Ms. Grate]. Then I saw Sonia walking up to Carmen & Sonia stopped and was talking
with her hands up. I saw Carmen push Sonia out of her way and Carmen just kept
walking. I was scared and got on the phone and called 911—I told the operator that the
people coming in were using physical force and to get here right away…Carmen pushed
Sonia like ‘get out of the way’—she was aggressive.

Ms. Noble was only the only witness to corroborate Ms. Garcia’s account of her
interaction with Ms. Lozania. After conducting the investigation, Ms. Grate affirmed the
termination decision. Ms. Lozania did not take the next appeal step.

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4. May 2 Warning Notice to Ms. Espinoza

Ms. Noble reported to Mr. Lomax and Ms. Grate that she saw Ms. Espinoza turn off
machines other than her own after the demonstration began. Ms. Espinoza denied she had
done so. After reporting to work on May 2, Ms. Espinoza, an open union supporter, was
directed to meet with Ms. Garcia and Mr. Lomax. Ms. Garcia and Mr. Lomax told Ms. Espinoza
that supervisors had reported she turned off machines on the previous day.37 Ms. Garcia asked
why she had been going around turning off machines and said if it happened again she would
be fired. Ms. Espinoza denied that she had turned off any machine other than the one she had
been operating. Ms. Garcia declined to hear anything more from Ms. Esteban and gave her a
Constructive Counseling Notice dated May 2 and marked “Written Warning.” The Constructive
Counseling Notice accused Ms. Espinoza of dangerously and unauthorizedly stopping
machines and cautioned her against similar conduct.

In determining whether Respondent justifiably charged Ms. Espinoza with turning off
machines during the demonstration, I have considered my favorable observations of
Ms. Espinoza, whom I found to be a generally reliable and credible witness. I note Ms. Noble
went down to the production floor from her upstairs office after she heard the whistling that
heralded the demonstration. By all accounts, confusion and disorder reigned, and Ms. Noble
was besieged with employee reports that someone was turning off the machines. In those
circumstances, I find it likely Ms. Noble was mistaken in her impressions. Although I consider
Ms. Noble had a good faith belief that Ms. Espinoza engaged in misconduct, I find
Ms. Espinoza’s testimony to be a credible account of what occurred, and I conclude she did not
turn off any but her own machine.38

5. Mid-June Oral Reprimands to
Ms. Espinoza and Yolanda Dominguez Pena

In mid June, Ms. Garcia called Ms. Espinoza and Yolanda Dominguez Pena (Ms. Pena)
to her office after an employee meeting conducted by supervisor Javier Rodriguez (Javier).
During that meeting, Ms. Espinoza had told Javier that the drinking water was not good and that
her stomach hurt when she drank it. Ms Garcia accused Ms. Espinoza of interrupting Javier
during the meeting. Ms. Garcia told Ms. Espinoza to let Javier do his job, that after Javier said
what he had to say he would open it up for questions, and Ms. Espinoza could raise her
questions with Javier after that. Ms Espinoza protested the water was physically harmful.
Ms. Garcia told Ms. Espinoza not to make any more comments about the water, that if she
talked to other workers any more about the water, she would have problems. I accept
Ms. Espinoza’s testimony that during the meeting with Javier when he said the plant was very
hot, and employees should drink water, she asked, “How is it you want us to drink water? The
water is no good; it hurts our tummies.” I also credit Ms. Pena’s testimony that Ms. Espinoza did
not interrupt Javier during the meeting.

37 Mr. Lomax’s statement was not entirely accurate. Although leadman Nicolas Galarza
testified he heard Ms. Espinoza say, “Stop the machines and follow me,” he did not, apparently,
see her turn any off. Therefore, Ms. Noble’s was the only report of Ms. Espinoza’s misconduct.
38 Although the General Counsel has alleged Ms. Espinoza’s warning notice to violate
Sections 8(a)(1) and (3) of the Act, I have discussed it below as an independent violation of
Section 8(a)(1).

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Ms. Garcia testified that employees complained Ms. Pena had “mistreated” them by
calling them cowards for no longer supporting the Union. Without specifying what words or
portions of Ms. Pena’s discussions with coworkers she objected to, Ms. Garcia told Yolanda,
“[T]wo of your coworkers have complained about some discussion that’s going on in the back,
and I just want to ask you just to change your topics of discussion so that there’s no… more
problems.”39

D. The Appropriate Unit

Respondent’s drivers transport dirty linen from customers to the plant. Production
employees unload the product, which sorting employees sort into bins. The bins go into an
overhead transport system that moves dirty product to the washing area where it is washed,
dried, and ironed. The clean product is bundled, tied, loaded, and transported back to
customers by the drivers. The process takes four to six hours from time of product entry to exit.

In reaching the Stipulated Election Agreement, representatives of Respondent and the
Union never met. All positions and discussion regarding the unit were communicated through
Board Agent Keith Ebanholtz (Mr. Ebanholtz) of Region 28. Ms. Stewart handled the Stipulated
Election Agreement for the Union, and Victoria Davidson (Ms. Davidson) and Bonnie Grate
(Ms. Grate) handled it for Respondent.

At Mr. Ebanholtz’s request, Respondent sent a list of employee names and
classifications to Mr. Ebanholtz, including the linen room attendant (LRA) classification.40
Employees named under the LRA classification erroneously included Frank Payan, Teresa
Moreno, and Maria Luisa Espinoza who work in job classifications other than LRA and who
perform their work at the plant.41 None of the employees appropriately classified as LRAs
worked at the plant; their physical workstations were at five area hospitals under contract with
Respondent for linen supply services.42 Respondent’s representatives did not communicate to
Mr. Ebanholtz the locations of the LRAs and did not discuss with him the “employed by the
Employer at its laundry facility located at 4445 South 36th Street…” language of the unit
description. Of Respondent’s six to seven collective-bargaining agreements covering laundry
workers, only one includes off-site LRAs in the unit.

In the course of working out the unit stipulation, Ms. Stewart understood Mr. Ebanholtz
to say that Respondent wanted to be more precise as to the job classifications included in the
unit. Specifically, Respondent wanted to add the classification LRA to the unit description.
Ms. Stewart said she had no objection as long as the LRAs worked in the plant. Ms. Stewart
assumed the words “employed by the Employer at its laundry facility located at 4445 South 36th
Street…” restricted the unit to those who worked physically at the plant. She was never
informed the LRAs worked at hospitals and would not have agreed to their inclusion in the unit if
39 Ms. Pena appears to have understood Ms. Garcia was referring to union-related
discussions with coworkers.
40 Although this classification is referred to herein as linen room attendant, Respondent’s
usual designation was Hospital Linen Distributor.
41 Frank Payan worked as a dock coordinator.
42 Of the classifications submitted to Mr. Eganholtz, only the LRA classification comprised
employees whose work locations were away from the plant.

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she had known.43 When Ms. Stewart received the Excelsior list, she continued to be unaware
the LRA workstations were not within the plant as Respondent had mistakenly included as LRAs
the names of two employees whom Ms. Stewart knew to be employed in the plant.44 Following
personal contact with employees listed on the Excelsior list, the Union concluded employees
listed as LRAs were not employed at the plant and therefore not appropriately within the
stipulated unit. At the election the Union challenged the ballots of all LRAs.

The LRAs work one or two to a hospital site and only one shift (generally day) unlike
the around-the-clock plant operation. Unlike the plant employees, they must be able to
communicate in English and possess basic math skills. Although plant employees may apply
for open LRA positions, such transfers are rare. Under Arizona State law individuals employed
on hospital premises must undergo criminal background checks, which are not required for plant
employees. LRAs report to the assigned hospital for work shifts and record their work hours
there. LRA supervisor Reyes checks on LRAs and their work at the hospitals or interacts with
them by telephone. LRAs report to the plant for biweekly training meetings on Thursday
paydays, which are not attended by plant employees. Those LRAs who do not have direct
paycheck deposit also pick up their paychecks at the plant. LRAs have virtually no contact with
plant employees. In handling laundry at the hospitals, LRAs accept clean laundry deliveries
from Respondent’s drivers (a classification excluded from the unit), maintain the linen rooms at
the hospitals, and remove already-bagged dirty laundry by cart to where the drivers pick it up.

III. Discussion

A. Independent violations of Section 8(a)(1) of the Act

1. Alleged Surveillance and Threat of Reprisal

The General Counsel contends Ms. Noble’s conduct in the early hours of April 28
(asking Mr. Gaitan and Mr. Castro what was going on, taking union literature from Mr. Castro,
watching the group from the windows and doors of the plant, approaching the group of
employees and organizers to “see who [was there],” and later while back at the plant, making
writing motions) constitute unlawful surveillance and veiled threat of reprisal.

Mere supervisory observation of “open, public union activity on or near [an employer’s]
property does not constitute unlawful surveillance.” Town & Country Supermarkets, 340 NLRB
No. 172, slip op. 7 (2004); Fred’k Wallace & Son, 331 NLRB 914 (2000). The early morning
union activity of April 28 was openly staged near Respondent’s plant so as to attract employees
leaving work at shift change. The Union posted a large banner at a picnic table just outside plant
boundaries and the group urged workers to join them there. In these circumstances, Ms. Noble’s
43 Ms. Davidson testified that on May 9, she had a conversation with Mr. Ebanholtz in which
he told her Respondent’s Tuscon LRAs would not be permitted to vote because they worked a
considerable distance from the plant and did not report there daily. Even assuming an inference
can be drawn from this conversation that Mr. Ebanholtz was aware LRAs did not work in the
plant, it does not provide evidence of union awareness. At the time of this conversation, the
Union had already signed the Stipulated Election Agreement dated May 6, and there is no
evidence the Union knew the work locations of LRAs prior to executing the stipulation.
44 Although it dropped the name of Teresa Moreno as an LRA employee when generating
the Excelsior list, Respondent inadvertently included the names of Maria Luisa Espinoza and
Frank Payan under the classification of LRA in the Excelsior list furnished to the Region and
thereafter to the Union.

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observing the activity cannot be deemed surveillance. Her asking an off duty employee if she
could see, and then accepting a sample of, the union literature he carried into the plant also do
not constitute surveillance. The employees had no legitimate basis for being in the plant at that
time of the night, and they openly carried union literature with them. In those circumstances,
neither Ms. Noble’s inquiry nor her literature requisition could, without more, have coerced the
employees or made them think she was observing their union activities. Finally, her approaching
the picnic table to see who was congregated there is not surveillance. The plant was indisputably
located in a rough area of town, and the activity occurred in the middle of the night, both of
which circumstances justified Ms. Noble’s investigation. Ms. Noble neither commented on
employees’ activities nor took any action to interfere with them. As to Mr. Bribiezca’s belief that
she later wrote down participating employees’ names, the evidence doesn’t allow me to share his
opinion. Accordingly, I do not find Ms. Noble engaged in unlawful surveillance or made any
veiled threat of reprisal.

2. Informing Employees That Union Activities
Were Viewed as a Personal Affront

Mr. Lomax was personally offended by the demonstration, and he repeatedly informed
employees he had taken affront. Employee involvement in the demonstration was protected
under Section 7 of the Act. By his communication of surprise and hurt at employees’ prounion
display, Mr. Lomax implicitly equated engaging in protected activity with disloyalty to him and,
concomitantly, the company. Respondent thereby violated Section 8(a)(1) of the Act.
Westwood Health Care Center, a division of Medcare Associates, Inc., 942 (2000); Dauman
Pallet, Inc., 314 NLRB 185, 186 fn. 7 (1994).

3. Statements Made at Video Presentations

When Ms. Garcia told employees wages would be frozen during negotiations, she did
not restrict the projected freeze to those benefits and/or wage increases that differed from
Respondent’s past practices. With regard to wage increases, Respondent reviews each
employee annually. Based on the points achieved on the review, Respondent grants individual
wage increases, the maximum of which is four per cent. Plainly, Respondent has an
established past practice and procedure for granting wage increases, and employees have a
reasonable expectation of being eligible for an increase under that procedure. Accordingly,
Respondent’s union campaign statement that wages would be frozen during contract
negotiations is unlawful under 8(a)(1) of the Act. Superior Emerald Park Landfill, LLC, 340
NLRB No. 54, slip op. 8 (2003); Desert Aggregates, 340 NLRB No. 39 (2003) and cases cited
therein at fn. 9.

4. Respondent’s Involvement in Authorization Card Revocation

At video meetings, Ms. Garcia invited employees to obtain information from her on how
to retrieve their authorization cards. Respondent posted similar offers on its bulletin boards.
Citing Vestal Nursing Center, 328 NLRB 87, 101 (1999), the Board in Mohawk Industries, 334
NLRB 1170, 1171 (2001) held:

An employer may…advise employees that they may revoke their authorization cards, so
long as the employer neither offers assistance in doing so or seeks to monitor whether
employees do so nor otherwise creates a situation where employees would tend to feel
peril in refraining from revoking. R.L. White Co., 262 NLRB 575, 576 (1982). Thus, an
employer may not offer assistance to employees in revoking authorization cards in the
context of other contemporaneous ULPs. [citation omitted].

Here, Ms. Garcia did not merely advise employees of their rights, she encouraged them

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to contact her to find out how to get their cards back and when they did so, collected their
revocations. Although Ms. Garcia’s motive may have been innocent of any wish to ascertain
employee sentiment, the procedure permitted Respondent to observe whether employees availed
themselves of the opportunity to revoke their cards. Moreover, because the invitation to revoke
authorization cards came almost immediately after Respondent’s refusal to return prounion
demonstrators to work (discussed below), employees would reasonably feel imperiled if they did
not revoke. Accordingly, I find Respondent independently violated Section 8(a)(1) by its
solicitation of employees to revoke authorization cards. Mohawk Industries, supra; Wayne J.
Griffin Electric, Inc., 335 NLRB 1362, 1375 (2001); Escada (USA), Inc., 304 NLRB 845, 849
(1991) (distributing a sample revocation letter to employees in the context of other unfair labor
practices unlawful); Chelsea Homes, 298 NLRB 813, 834 (1990), enfd. mem. 962 F.2d 2 (2d Cir.
1992) (distinction drawn between lawfully providing "ministerial or passive aid in withdrawing
from union membership" and unlawfully "actively solicit[ing], encourag[ing], and assist[ing] such
withdrawals"); cf. Mid-Mountain Foods, 332 NLRB 229, slip op. 3 (2000) (no violation where the
employer "neither tracked whether employees availed themselves of their right to revoke their
union authorizations nor assisted them in the revocation process beyond simply telling them
about the forms.") Cooking Good Division of Perdue Farms, Inc., 323 NLRB 345 (1997)
(revocation forms with instructions and addresses of Board and union available throughout the
plant, with some revocations mailed by the employer.)45

5. May 2 Written Warning Notice to Ms. Espinoza

Respondent disciplined Ms. Espinoza because of its good faith but mistaken belief that
she had engaged in misconduct during the course of her protected participation in the
demonstration. In NLRB v. Burnup & Sims, 379 U.S. 21 (1964), the Supreme Court affirmed the
Board's rule that an employer violates Section 8(a)(1) by discharging or disciplining an employee
based on its good-faith but mistaken belief the employee engaged in misconduct in the course of
protected activity. Id. at 23-24. I conclude Respondent violated Section 8(a)(1) of the Act by
issuing a written warning to Ms. Espinoza for shutting down machines other than her own on May
1. In light of this conclusion, it is not necessary to consider whether Respondent’s conduct also
violated Section 8(a)(3) of the Act as alleged in the Complaint. La-Z-Boy Midwest, 340 NLRB
No. 10, slip op. 1 (2003), citing Shamrock Foods Co., 337 NLRB 915 (2002) (no issue of
motivation where discipline based on a mistaken belief of misconduct in the course of protected
activity.)

6. The Post-Election Celebrations

The General Counsel contends Respondent’s post-election victory celebrations violated
the Act as an unlawful grant of benefit to reward employees for rejecting the Union. Board law
does not support such a conclusion. “The Board has long held that a union's or an employer's
provision of refreshments and dinners during organizing campaigns is within the realm of
permissible conduct [citations omitted].” Lamar Co., LLC, 340 NLRB No. 114 (2003); see also
Raleigh County Commission on Aging, Inc., 331 NLRB 925 (2000), where holding a promised
post-election victory dinner for employees did not constitute objectionable conduct. If such
45 These latter two cases, cited by Respondent, differ from the instant situation in the degree
of employer involvement. Here, at least initially, employees were advised to see Ms. Garcia for
information and assistance on revocation.

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celebrations are not objectionable, a fortiori, they cannot violate 8(a)(1) of the Act. Accordingly,
I shall dismiss this allegation of the Complaint. However, statements made by Respondent’s
management officials during the celebrations are a different matter.

In the victory atmosphere of the post-election parties, Ms. Grate told employees they
would have to work together as a team, and employees unwilling to do so or who would not be
happy doing so should leave Respondent’s employment. In safety meetings conducted
thereafter, Ms. Noble voiced similar sentiments when she told employees they should put
whatever went on before the election behind them, and if they could not work together, they
should look for other work. In the context of celebrating a win over the Union, Ms. Grate’s
statements that employees henceforth needed to work as a “team” could reasonably have been
construed as cautionary notice to abandon union support. By telling employees that those
unwilling to work as a “team” should explore other employment opportunities, Respondent
framed the none-too-subtle equation that union support plus attendant employee division and
unhappiness equaled tenuous job security. Ms. Noble’s later statements even more strongly
associated employee dissatisfaction with union support when she told employees they should
put preelection feelings behind them and work together. In the absence of Section 7
assurances, Ms. Noble’s call for employee unification could reasonably be seen as an
admonition that prounion activity, which had formerly divided employees and caused
dissension, must be abandoned if employment were to continue. Employees would be even
more likely to draw such an inference because of the unfair labor practices committed by
Respondent in its campaign against the Union. Respondent’s argument that its motive in
making such statements was legitimately to boost employee morale and cooperation, even if
true, is unavailing. In determining whether a statement constitutes a threat in violation of
Section 8(a)(1) of the Act, the Board does not consider subjective factors but rather whether,
under all the circumstances, the statement reasonably tends to restrain, coerce, or interfere with
employees' rights guaranteed under the Act. Reeves Bros. Inc., 320 NLRB 1082, 1084 (1996);
Sunnyside Home Care Project, 308 NLRB 346, fn. 1 (1992). The positive purpose behind the
statements, as urged herein by Respondent, is likewise irrelevant. President Riverboat Casinos of
Missouri, 329 NLRB 77 (1999). Accordingly, I conclude both Ms. Grate and Ms. Noble implicitly
threatened employees with reprisals if they continued to engage in union activities. See Paper
Mart, 319 NLRB 9 (1995); Jack August Enterprises, Inc., 232 NLRB 881 (1977).

7. Post-election Grant of Benefits

In the months following the election, Respondent installed a swamp cooler and replaced
three water fountains in its plant. Beginning in April and continuing thereafter, it also permitted
employees daily to wear new rather than used protective gloves. During the summer,
Respondent also provided employees with Gatorade or similar drink. The General Counsel
contends such changes in plant and safety equipment and drink supply constituted unlawful
grants of benefit to reward employees for rejecting the Union.

It is not per se unlawful for an employer to grant benefits to employees in the midst of
union organizational activity, and, presumably, it is not per se unlawful to grant them following
the activity. The burden is upon the General Counsel to establish "by a preponderance of the
evidence that employees would reasonably view the grant of benefits as an attempt to interfere
with or coerce them in their choice on union representation." Southgate Village, 319 NLRB 916
(1995). Logic dictates that the General Counsel’s burden is a heavy one when the grant of
benefit occurs after an unsuccessful representational bid. Otherwise any employer grant of
benefit could be suspect because it might deter contented employees from desiring future
representation. In any event, Counsel for the General Counsel has cited no cases in support of
the theory that post-election grant of benefits independently violate Section 8(a)(1) of the Act,
and I conclude that where no preelection promise of benefit was made, and no coercive

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statements accompanied Respondent’s salubrious post-election changes, they did not
independently violate Section 8(a)(1) of the Act. Whether the changes violated Section 8(a)(5)
of the Act is discussed below.

8. Oral Reprimands of
Ms. Espinoza and Ms. Pena

In mid-June Ms. Espinoza engaged in protected activity when, in an employee meeting,
she complained to her supervisor about the quality of drinking water. Air Contact Transport, Inc.,
340 NLRB No. 81 (2003). Ms. Pena also engaged in protected activity when she talked of the
Union to other employees. Ms. Garcia orally reprimanded the two for engaging in the protected
conduct. Respondent argues no discipline was administered, but even an undocumented
“caution” as Respondent styles its interchange with the two employees, may violate the Act if it
restrains or coerces employees. I do not find Ms. Garcia was motivated by any antiunion
considerations when she reprimanded or cautioned Ms. Espinoza and Ms. Pena. Rather, I
conclude she had a good faith but mistaken belief the two employees had engaged in
misconduct.46 An employer violates Section 8(a)(1) when it disciplines an employee based on its
good-faith but mistaken belief the employee engaged in misconduct in the course of protected
activity, NLRB v. Burnup & Sims, supra, at 23-24. Alternatively, if Respondent’s caution did not
rise to a disciplinary level, Respondent restrained and coerced the two employees in the exercise
of their Section 7 rights. I conclude Respondent violated Section 8(a)(1) of the Act by
reprimanding or cautioning Ms. Espinoza and Ms. Pena for engaging in protected activity but did
not violate Section 8(a)(3) of the Act, as alleged in the complaint.

B. Violations of Section 8(a)(3) of the Act

1. Discharge of Striking Employees

When the four sorting employees left the sorting line at about 2:00 p.m., May 1, and
joined the demonstration to protest working conditions and to signify their support of the Union,
they were engaged in protected activity. Accel, Inc., 339 NLRB No. 134 (2003); Dayton
Newspapers, Inc., 339 NLRB No. 79 (2003). When they returned to the plant and, without
setting any conditions, told Mr. Lomax they wanted to go back into work, they made
unconditional offers to return to work. Diamond Walnut Growers, Inc., 340 NLRB No. 135, slip
op. 2 (2003) (an offer does not have to use the word “unconditional” to be valid). Under the
provisions of Laidlaw Corp., 171 NLRB 1366 (1968), they were entitled to reinstatement to their
former jobs when they unconditionally applied to return to work unless those positions had been
filled by permanent replacements prior to their offers to return to work. Detroit Newspapers, 340
NLRB No. 121 (2003). Advising economic strikers they have been permanently replaced when
they have not been “constitutes a discharge in violation of Section 8(a)(3) and (1) of the Act.
Consolidated Delivery & Logistics, Inc., supra at 525 and fn. 5. The General Counsel contends
Respondent had not permanently replaced the four sorting employees at the time of their offers
46 Respondent offered no direct evidence that Ms. Pena had called any employees cowards.
Even assuming Ms. Pena did so and that such was unprotected, Ms. Garcia’s caution or
reprimand to Ms. Pena encompassed all union discussion with coworkers and thereby infringed
on protected activity.

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to return to work; therefore, its refusal to permit three of them to resume their jobs was both an
unlawful discharge and an unlawful refusal to reinstate each of them. Respondent, on the other
hand, argues that Respondent lawfully and permanently replaced the employees before they
ever asked to return to work and that it never discharged them.

It is undisputed that within the same half hour they left their workstations, the sorting
employees offered to return to work. The crucial question is whether they made their offers
before or after Respondent found replacements for them. Both Respondent and the General
Counsel presented considerable evidence regarding the timing of the offers to return to work.
After a careful review of the evidence, I conclude the sorting employees offered to return to work
before Respondent replaced them with new employees.

Much of the testimony regarding the sorting employees’ offers to return to work was
conflicting. In reaching my conclusion, I have focused primarily on the testimony of Mr. Lomax
and Ms. Gonzalez and find that both accounts support a conclusion that the offers to return to
work occurred pre-replacement. I found Ms. Gonzalez to be a fully credible witness, forthright
and sincere. As of the hearing date, she no longer worked for Respondent, and because of
coworker hostility toward her for having returned to work on May 1, she had been estranged
from union supporters before that. I saw no indication of any desire or tendency to testify in a
way that would favor one side over the other or, indeed, any awareness of how her testimony
might impact the issues. I accept her testimony of what occurred the afternoon of May 1.
Although I found Mr. Lomax to be generally a straightforward and sincere witness, his testimony
regarding replacement of the sorters suffers from inherent incongruity, and where it reaches
irresolvable conflict with that of Ms. Gonzalez, I accept her testimony over his.

Mr. Lomax testified of having taken a number of actions between the time he bade the
demonstrators leave the premises and the time he received offers to return to work from the four
sorting employees. His activities include speaking for two to three minutes with employee,
Avena Sarmiento, spending five to fifteen minutes in the sorting area speaking to leadman,
Eliazar Rodriguez and ascertaining and marking the names of sorting employees who had
absented themselves from their work stations, arranging for substitute workers from the existing
workforce, and taking a telephone call in the course of which he authorized three individuals to
report to the plant to fill out employment papers.47 Giving weight to Ms. Gonzalez’s account, I
find the time between her leaving the plant to join the demonstrators and returning to the
emergency door to request readmittance to work was very brief, in fact, a matter of only fifteen
minutes. It is highly improbable, indeed logistically impossible, for Mr. Lomax to have
accomplished his asserted tasks and employed three new workers in so short a time.
Moreover, and most compellingly, Ms. Gonzalez had indisputably returned to her workstation
and resumed her work duties before Mr. Lomax made any offers of employment to replacement
workers.48 Since she surreptitiously returned to work after she and the other employees made

47 I have assumed only for purposes of this analysis that Mr. Lomax’s instructions to Vicki
constituted job offers to Jonathan Bourassa, Tom Sardinas, and Rigoberto Valencia. There is
nothing in Vicki’s recommendation to the three men that they go to the plant and fill out
paperwork if they wanted jobs to suggest they had actually been hired. Rather, she merely
notified them of the likelihood of employment, which is far short of job offer and acceptance,
both of which must exist to create a “mutual understanding” of permanent employment.
Consolidated Delivery & Logistics, 337 NLRB 524, 526, fn. 5 (2002); Solar Turbines, Inc., 302
NLRB 14 (1991).
48 In its post-hearing brief, Respondent concedes that Ms. Gonzalez “returned to work
before replacements were hired.”

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offers to do so, it follows that Mr. Lomax had not replaced any of the striking sorting employees
at either of the two times the sorting employees attempted to return to work and certainly not
when they first offered to return to work. I conclude therefore that Respondent unlawfully
refused to reinstate the four sorting employees to their former positions upon their unconditional
request offers to return to work and discharged Mr. Zarate, Ms. Ramirez, and Mr. Avena in
violation of Section 8(a)(3) and (1) of the Act.

Assuming, arguendo, that Mr. Lomax had, in fact, hired replacement employees before
the sorting employees offered to return to work, I nonetheless conclude Respondent discharged
Mr. Zarate, Ms. Ramirez, and Mr. Avena. The expressions used by Mr. Lomax in rebuffing the
employees’ offers to return to work during both attempts do not reflect an intention permanently
to replace the employees but, rather, are fully consistent with discharging them. Thus when
Mr. Lomax first refused the employees admittance to the plant, he said nothing about having
replaced them, saying only that they could not return to work. Upon the employees’ second
attempt, Mr. Lomax again said nothing about replacement but insisted there was no work,
repeatedly telling them they had walked off the job. A month went by before Respondent
notified the employees, in writing, that they had been replaced, and when replacement Tom
Sardinas quit in late May or early June, Respondent did not offer the vacated position to any of
the sorting employees. When the replaced employees were offered a sorting position in July,
Respondent initially treated them as new hires. In these circumstances, I conclude, irrespective
of whether Respondent had permanently replaced Mr. Zarate, Ms. Ramirez, and Mr. Avena
when they offered to return to work on May 1, Respondent unlawfully discharged them on that
date for engaging in a protected work stoppage.49

By refusing to permit Mr. Zarate, Ms. Ramirez, and Mr. Avena to return to work after
their unconditional offers to do so and by terminating them for engaging in a protected work
stoppage, Respondent refused to reinstate the three employees and discharged them in
violation of Section 8(a)(3) of the Act. Consolidated Delivery & Logistics, 337 NLRB No. 81, slip
op. 2 (2002).

2. Discharge of Carmen Lozania

Ms. Lozania was unquestionably engaged in protected activity when she participated
in the May 1 demonstration. Whether she lost the protection of Section 7 of the Act, depends
on whether as Respondent contends, she pushed or shoved her supervisor, Ms. Garcia, during
the demonstration, or whether, as the General Counsel contends, no such misconduct
49 Respondent’s motivation is not in issue; all actions toward the three sorting employees
were pursuant to their having engaged in protected work cessation. It is, therefore,
unnecessary to apply the Board’s analytical framework for deciding cases turning on employer
motivation set forth in Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). Contrary to the General Counsel’s argument, I also conclude a
Burnup & Sims analysis is inappropriate. Respondent does not dispute the three sorting
employees engaged in protected activity or contend any misconduct in the course of the
protected activity justified Respondent’s actions toward them. The questions are essentially
factual: did Respondent properly and permanently replace striking employees or did it refuse to
do so and discharge them.

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occurred.50 After considering all the evidence regarding Ms. Lozania’s conduct, I am persuaded
Ms. Garcia’s account is credible. In reaching that determination, I have considered the manner
and demeanor of both witnesses. I found Ms. Garcia, who testified extensively on many issues,
to be forthright and sincere. I noted that although Ms. Lozania asserted to management that
exculpatory witnesses existed, she refused to name then. I cannot accept her claimed wish to
avoid exposing them to retaliation since, presumably, they were a part of the demonstration and
already known to management as union supporters. I conclude Ms. Lozania did, in fact, push or
shove Ms. Garcia aside as she walked with the demonstrators to the plant office. That
conclusion does not, however, resolve the matter. The issue of whether Ms. Lozania’s conduct
was so severe as to cost her the protection of the Act remains.

The Board and the courts in considering nonphysical conduct have recognized,

[E]ven an employee who is engaged in concerted protected activity can by opprobrious
conduct , lose the protection of the Act. The decision as to whether the employee has
crossed the line depends on several factors: (1) the place of the discussion; (2) the
subject matter of the discussion; (3) the nature of the employee's outburst; and
(4) whether the outburst was, in any way, provoked by an employer's unfair labor
practice. [footnote omitted] Atlantic Steel Co., 245 NLRB 814 (1979); see also Felix
Industries, Inc., 331 NLRB No 12 (2000) and Health Care & Retirement Corp., 306
NLRB 63, 65 (1992).

Here, although Respondent committed serious unfair labor practices, it did so after
Ms. Lozania’s confrontation with Ms. Garcia. Consequently, unfair labor practices cannot have
goaded Ms. Lozania. Ms. Lozania’s unprovoked physical assault in pushing Ms. Garcia away
constituted open insubordination to a supervisor, which is serious misconduct and which cost
her the protection of the Act. Notwithstanding the misconduct, it remains to determine whether
Respondent was motivated by union animus in its discharge of Ms. Lozania,

In resolving the question of Respondent’s motivation, I follow the Board’s analytical
guidelines in Wright Line. 51 If the General Counsel’s evidence supports a reasonable inference
that protected concerted activity was a catalyzing factor in Respondent’s discharge of
Ms. Lozania, he has made a prima facie showing of unlawful conduct.52 The burden of proof
then shifts to Respondent to establish persuasively by a preponderance of the evidence that it
50 Under Burnup & Sims, supra, it is not sufficient for Respondent to show a good faith belief
the misconduct occurred, as discipline pursuant to a mistaken belief of misconduct in the course
of protected activity violates Section 8(a)(1) of the Act.
51 251 NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert. Denied 455 U.S. 989
(1982).
52 “The General Counsel must establish four elements by a preponderance of the evidence.
First, the General Counsel must show the existence of activity protected by the Act. Second,
the General Counsel must prove that the respondent was aware that the employee had
engaged in such activity. Third, the General Counsel must show that the alleged discriminatee
suffered an adverse employment action. Fourth, the General Counsel must establish a
motivational link, or nexus, between the employee’s protected activity and the adverse
employment action. [citation omitted].” American Gardens Management Company, 338 NLRB
No. 76 at slip op. 2 (2002).

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would have made the same decision, even in the absence of union activity.53 Avondale
Industries, Inc., 329 NLRB 1064 (1999); T&J Trucking Co., 316 NLRB 771 (1995). Respondent
was well aware of Ms. Lozania’s prominent role in the demonstration. It is also clear
Respondent bore significant animosity toward employees who participated in the demonstration.
Respondent unlawfully refused to reinstate and discharged employees who engaged in a work
stoppage to support the demonstration, and Mr. Lomax informed employees of his chagrin at
employees’ participation in the protected activity. Finally, Respondent disciplined Ms. Lozania
for conduct connected with the protected activity. In these circumstances, I conclude the
General Counsel has made “an initial ‘showing sufficient to support the inference that protected
conduct was a motivating factor’” in Respondent’s decision to terminate Ms. Lozania. American
Gardens Management Company, 338 NLRB No. 76 at slip op. 2 (2002). The burden of proof
therefore shifts to Respondent to show that Ms. Lozania’s discharge would have (not just could
have) occurred even in the absence of her participation in the demonstration. Avondale
Industries, Inc., supra at 1066.

In assessing Respondent’s evidence of lawful purpose in discharging Ms. Lozania, I
recognize the fact that an employer may desire to retaliate against employees or to curtail union
activities does not, of itself, establish the illegality of a discharge. If an employee provides an
employer with sufficient cause for dismissal by engaging in conduct that would, in any event,
have resulted in termination, the fact the employer welcomes the opportunity does not render
the discharge unlawful. Avondale Industries, Inc., supra; Klate Holt Company, 161 NLRB 1606,
1612 (1966). Further, it is well established the Board "cannot substitute its judgment for that of
the employer and decide what constitutes appropriate discipline.” Detroit Paneling Systems,
Inc., 330 NLRB 1170, 1171 fn. 6 (2000) and cases cited therein. Nonetheless, the Board’s role
is to ascertain whether an employer’s proffered reasons for disciplinary action are the actual
ones. Ibid

Here, Ms. Lozania in her conduct toward Ms. Garcia, contravened Respondent’s zero
tolerance of violence policy. There is no question Respondent could reasonably have
discharged her for such conduct. Whether the evidence supports a finding that Respondent
actually did so depends, largely, on how it treated similarly circumstanced employees who had
not engaged in prounion activities, that is, whether it disparately disciplined Ms. Lozania.
Counsel for the General Counsel attempted to provide evidence of disparate treatment by
comparing Ms. Garcia’s bumping into a child at the ballot tally without consequent discipline to
Ms. Lozania’s conduct. I have found the comparison inapt; Ms. Garcia’s conduct was neither
intentional nor insubordinate, which Ms. Lozania’s was and which, moreover, was directed
toward a supervisor. Respondent furnished evidence of employees who were discharged for
acts of violence toward other employees. I conclude Respondent regularly enforced its policy of
zero tolerance for violence and was justified in regarding physical misconduct toward a
supervisor as falling within the prohibitions of that policy. Accordingly, I conclude Respondent
met its burden of showing Ms. Lozania’s discharge would have occurred even in the absence of
her participation in the demonstration. Respondent did not, therefore, violate Section 8(a)(3) of
the Act by discharging Ms. Lozania.

53 A “preponderance” of evidence means that the proffered evidence must be sufficient to
permit the conclusion that the proposed finding is more probable than not. McCormick
Evidence, at 676-677 (1st ed. 1954).

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C. Alleged Violations of Section 8(a)(5) of the Act

I have earlier concluded that Respondent’s installation of a swamp cooler, replacement
of three water fountains, substitution of new for used protective gloves, and provision of
Gatorade or similar drink during the summer did not violate Section 8(a)(1) of the Act. As I have
concluded below that as of May 1, Respondent was obligated to recognize and bargain with the
Union, it is left to determine whether these changes violate Section 8(a)(5) of the Act.

The General Counsel alleges that, after the establishment of its bargaining obligation,
Respondent made the above unilateral changes that affected unit working conditions without
notice to or bargaining with the Union. There is no dispute that changes occurred without notice
to the Union. The question is whether the changes were material, substantial, and significant. It
does not matter that the changes were salubrious. A change need not have a negative impact
on terms and conditions of employment to be substantial and significant. Changes that improve
employee conditions are still subject to the same bargaining obligations as adverse changes.
Wightman Center, 301 NLRB 573, 575 (1991.) However, the General Counsel must show the
changes significantly affected employees. The Fresno Bee, 339 NLRB No. 158, slip op. 3 (2003)
(change in payroll period). The changes here did not alter or impact job functions, duties,
requirements, benefits, wages, hours, or tenure. Cf Northside Center for Child Development, 310
NLRB 105 (1993). The Board has found neither a new timer system nor a classification change
that resulted in a slight pay increase to constitute material or substantial changes. Litton
Systems, 300 NLRB 324 (1990); Alamo Cement Co., 277 NLRB 1031 (1985); see also Civil
Service Employees’ Association, 311 NLRB 6, fn 2 (1993) (requirement that employees carry
beepers not a material change). Moreover, the change in glove distribution had, by credible
accounts, been decided and perhaps even instituted prior to the bargaining obligation. As to the
increased allotment of Gatorade, so minor an adjustment in an already established practice
cannot be material. Litton Systems, supra. I conclude, therefore, the changes made herein
were neither material nor substantial, and Respondent did not thereby violate Section 8(a)(5) of
the Act.

D. Bargaining Order as Remedy

1. The Appropriate Unit

The parties herein entered into a Stipulated Election Agreement that included LRAs in
the appropriate unit. The General Counsel and Charging Party contend the agreement should
not be given effect. They assert the Charging Party, through no fault of its own, did not have a
clear understanding of the duties and work locations of the LRAs, that the stipulation regarding
the unit is ambiguous on its face, and that it would be inequitable to bind the Charging Party to
it. I agree.

The Board will refuse to allow relitigation of unit appropriateness where the intent
behind the parties’ stipulation is clear and unambiguous, even if the stipulation result differs
from that which the Board would reach. South Coast Hospice, 333 NLRB 198 (2001); Hampton
Inn Suites, 331 NLRB 238, 239 (2000); Otis Hospital, 219 NLRB 164, 165 (1975).54 As stated
by the Board, “The initial question is ‘whether the intent of the parties is unambiguously
manifested in the unit stipulation.’ Southwest Gas Corp., 305 NLRB 542, fn. 6 (1991). If the
objective intent of the parties is manifested, the Board gives effect to the agreement. [Citations
omitted].” G & K Services, Inc., 340 NLRB No. 103, at slip op. 2 (2003). See also Genesis
Health Ventures of West Virginia, L.P., 326 NLRB 1208 (1998) (“Where the parties’ intent is
54 The Regional Director is also bound to such a stipulation. T&L Leasing, 318 NLRB 324,
fn. 6 (1995).

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clear and does not contravene any statutory provision or Board policy, the Board holds the
parties to their agreement. [Citation omitted];”) Laidlaw Transit, Inc., 322 NLRB 895 (1997) (the
Board will not examine extrinsic evidence to determine parties’ intent if the unit description is in
clear and unambiguous terms.)55

Here, an ambiguity exists in the unit description. The stipulation, which specifically
includes LRAs in the unit, also states unit employees are those “employed by the Employer, at
its laundry facility located at 4445 South 36th Street, Phoenix, Arizona.” The LRAs work in
various area hospitals and only rarely appear at the plant and never perform work duties there.
Ms. Meredith credibly testified the Charging Party assumed the location designation of the
stipulation limited the unit to employees actually performing work at that address. After
Respondent sought specific inclusion of the LRAs in the unit stipulation, Ms. Meredith, who
never directly discussed unit inclusions with Respondent’s representatives, told the Board Agent
acting as intermediary she had no objection as long as the LRAs worked in the plant. At all
times, therefore, there existed an ambiguity in the language of the stipulation, which included
LRAs working away from the plant while at the same time limiting the unit to employees who
worked at the plant. Thus, the stipulation did not reflect the intent of the Charging Party.

If an ambiguity exists between intent and stipulation, the Board applies “community of
interest” principles to determine whether disputed employees belong in the unit. Genesis Health
Ventures of West Virginia, L.P., supra. The community of interest test requires determination
of whether a mutuality of interests in wages, hours, and working conditions exists among the
employees involved. M.B. Sturgis, Inc, 331 NLRB 1298, 1305 (2000) and cases cited therein.
The Board has stated, “Under Section 9(b) of our statute, a group of an employer's employees
working side by side at the same facility, under the same supervision, and under common
working conditions, is likely to share a sufficient community of interest to constitute an
appropriate unit [citations omitted].” Id..

Factors considered by the Board in determining a lack of community of interest include:

[A] difference in method of wages or compensation; different hours of work; different
employment benefits; separate supervision; the degree of dissimilar qualifications,
training and skills; differences in job functions and amount of working time spent away
from the employment or plant situs ... the infrequency or lack of contact with other
employees; lack of integration with the work functions of other employees or interchange
with them; and history of bargaining.56

Here the LRAs and plant employees do not work side by side, sharing supervision and common
working conditions, and substantial distinctions exist between the work duties and backgrounds
of the LRAs and the plant employees. The LRAs are geographically separated from the plant
employees, which tends to create a separate and distinct community of interest. Judge &
Dolph, Ltd., 333 NLRB 175, 181 (2001). The LRAs report to the plant only for biweekly training
meetings generally held separate from plant employees and have essentially no contact with
plant employees in the performance of their job duties, except for delivery drivers who are
themselves excluded from the unit. The LRAs are supervised separately from plant employees
and, unlike plant employees, must be able to communicate in English, do simple math, and
55 Counsel for the General Counsel presents a colorable argument that the stipulated unit
description is unambiguous, that it permits the inclusion of LRAs, but only those who physically
work in the plant. However, since no such plant LRAs exist retrospectively, presently, or
prospectively, adopting such an argument would avoid the key issue.
56 Home Depot USA, 331 NLRB 1289, 1290 (2000).

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pass a criminal background check. There is no permanent or temporary interchange between
plant employees and LRAs and little similarity of skills, duties, and working conditions.

It is clear the LRAs lack a sufficient community of interest with Respondent’s plant
employees to justify their inclusion in the bargaining unit. Accordingly, I find the appropriate unit
of employees for purposes of collective bargaining is that set forth in the complaint:

All full-time and regular part-time production employees, seamstresses, laundry workers,
maintenance (janitors), stock workers I, house keeping attendants I, supervisors I
(lead/hourly), and shipping and receiving employees, employed by the Employer, at its
laundry facility located at 4445 South 36th Street, Phoenix, Arizona; excluding all other
employees, linen room attendants, office clericals, mechanics, maintenance mechanics,
engineers, route drivers, drivers I, confidential employees, guards and supervisors as
defined in the Act.

2. Majority Status of the Union

Following the Board election on May 29, the Tally of Ballots, in pertinent part, showed
the following:

Approximate number of eligible voters 224
Number of void ballots 0
Number of votes cast for Union 76
Number of votes cast against the Union 117
Number of challenged ballots 19

At the hearing, the parties agreed to certain deletions from the Excelsior list used in the
election. With those deletions, the number of eligible voters stands at 220. The parties
disagree on whether 14 LRAs and employee Leslie Nieves, hired May 1, are appropriately
counted as eligible voters. As set forth above, I have concluded the LRAs are not appropriately
included in the unit, and therefore, they are not eligible voters. Without their inclusion, the
number of eligible voters as of May 1 numbered 206.57 In order to prove majority support as of
May 1, the date Respondent committed its most egregious unfair labor practices, the evidence
must show the Union possessed valid authorization cards from 104 employees at that time.

Union authorization cards provided to employees during the Union’s solicitation of
employee signatures read in pertinent part:

I hereby accept membership in the [Union] and authorize [the Union] to represent me in
negotiations with my employer about wages, hours, and all other conditions of
employment.

57 I do not find it necessary to determine the status of Leslie Nieves.

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Except for the cards of Guillermo Morales and Benita Sanchez, all union authorization
cards submitted into evidence were dated between April 24 and April 30 inclusive (the card
signing period). I find all cards, including those of Guillermo Morales and Benita Sanchez, to
have been signed during that period. 58 At the hearing, the following employees identified their
signatures on union authorization cards:

Alvarado, Roberto Lizarraga, David
Alvarez, Leticia Lozania, Carmen
Ayala, Susano, Mena, Francisca Roa
Caranza, Anamaria Moreno, Monica
Espinosa, Elena Pena, Yolanda Dominguez
Gaitan, Miguel Ramirez, Maria A. (Gomez)
Gonzalez, Sandra Zarate, Jose Jesus
Hernandez, Emilia

At the request of Counsel for the General Counsel, I compared original union authorization card
signatures to exemplars furnished by Respondent.59 Based on my comparisons, I found the
following signatures to be authentic:

Avena, Isabel Martinez, Maria de le Paz
Alvarado, Antonio Mateo, Modesta
Beltran, Gloria Mendoza, Maria Garcia
Casillas, Berta Mitchell, Allen
Casteneda, Maria Mitchell, Trent
Castellanos, Juan Uribe Munoz, Maria
Castillo, Maria O. Ocasio, Amy
Chamale, Elmer Perez, Gilberto
Chombo, Teofilo Ramirez, Victor Nunez
Diaz, Ervey Rodriguez, Joane
Duarte, Maria Sarabia Rubin, Amelia
Duran, Jose Saenz, Jesus R.
Enriquez, Iris Saldana, Maria
Garcia, Jose Bonilla Sanchez, Maria
Garcia, Julio Sanchez, Max
Gordillo, Edith Solis, Rosa
Hernandez, Delia Valdez Strong, Angela
Hernandez, Miguelina Tapia, Raquel
Lopez, Maria Valdez, Filomena
Madrid, Raquel Valenzuela, Maria
Martinez, Beatriz Vasquez, Carmen
Martinez, Humberto Ventura, Evangelina
Martinez, Jose

58 The card of Guillermo Morales was undated and the card of Benita Sanchez was
misdated May 25, but credible evidence establishes both were signed during the card signing
period, appropriately validating the cards. Mercedes Benz of Orland Park, 333 NLRB 1017
(2001).
59 Respondent provided I-9 and W-4 forms signed by employees, which provide appropriate
comparison. Parts Depot, Inc. 332 NLRB 670 (2000).

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Based on its own comparison of union authorization card signatures to exemplars,
Respondent stipulated the authenticity of the following signatures:

Cabral, Silveria Nava, Juan Mayo
De Flores, Marcelina Navarrette, Margarita
Espinosa, Maria Luiza Ojeda, Manuel60
Galindo, Maria I. Osorio, Marta61
Gonzalez, Feliz Pinon, Moncerrat
Gonzalez, Yolanda Poltillo, Patricia62
Guzman, Celsa Rodriguez, Maria C.
Hernandez, Virginia Rodriguez, Salvador F.
Holquin, Graciela B. Ruiz, Audrey
Ricardo, Leon Solis, Juan Padilla
Lizarraga, Basilia Torrealba, Silvio Garcia
Maltos, Guadalupe Torres, Ileana
Martinez, Alejandrina Valdez, Nancy Saldana
Moreno, Sergio Venegas, Maura
Moreno, Sabino Haro

Respondent disputed the authenticity of the following union authorization card
signatures:

Amadisca, Rosa Martinez, Renaldo
Antonio, Vivanio F. Morales, Guillermo
Castro, Albert J. Pinon, Julia
Daniels, Lupe Rivera, Alberto
Diaz, Giovanni Vladimir Rodriguez-Cruz, Ameriz
Gallegos, Maria Romero, Jose Juan
Gonzalez, Sandra Sanchez, Benita
Lopez, Javier Alviro Smith, Ronald
Manuel, Hector Vasquez, Hilda Ibel

Union organizer, Ms. Pitkin, solicited employees of Respondent to sign union
authorization cards during union campaign meetings, outside the plant, and during home visits
to employees. She observed the signing of the following disputed cards63:

Amadisca, Rosa Martinez, Renaldo
Castro, Albert J. Morales, Guillermo
Daniels, Lupe Pinon, Julia
Diaz, Giovanni Rivera, Alberto
60 In his post-hearing brief, Counsel for the General Counsel, names this individual Manuel
Valenzuela. The name and signature on the authorization card that is in evidence as GCX 116-
18 are difficult to decipher. I accept Respondent’s reading of the name,
61 The parties stipulated the signature of Marta Osorio matches the exemplars in
Respondent’s records.
62 This employee’s authorization card bears the name Patricia Poltillo on the “Nombre
[name]” line and Patricia Gordillo on the “Firma [signature]” line.
63 Ms. Pitkin also observed the authorization card signatures of Jose B. Duran, Julio Garcia,
Maria de la Paz Martinez, Trent Mitchell, Gilberto Perez, Felix Gonzalez, and David Lizarraga.

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Gallegos, Maria Romero, Jose
Gonzalez, Sandra Sanchez, Benita
Lopez, Javier Vasquez, Hilda

Union organizers, Edward Martinez, Marcos Lopez, and Alejandro Miranda, solicited
employees of Respondent to sign union authorization cards during union campaign meetings,
outside the plant, and during home visits to employees. Respectively, they observed the
signing of the following disputed cards:

Antonio, Viviano and Rodriguez-Cruz, Amneriz
Manuel, Hector
Smith, Ronald

On April 27, after Mr. Bribriezca explained what a union was, Mr. Alvarado saw Monica
Burruel sign a union authorization card.

Respondent argues the authorization cards of the following nine employees should be
disregarded for the following reasons:

Hector Manual: Respondent asserts its records show no Hector Manual as an employee;
Hector Manuel Alicea Sanchez was an employee, but since the card-signer is not that
individual, the card must be disregarded. I note the address appearing on the card is
essentially the same as that shown on the company records for Hector Manuel Alicea
Sanchez.64 I conclude Hector Manuel Alicea Sanchez merely shortened his full name
when signing the card and that the card signed Hector Manual is that of an employee of
Respondent in the appropriate unit. Accordingly, his card should be counted.

Benita Sanchez: Respondent urges the card be considered invalid as untimely. As
noted above, I have determined Benita Sanchez signed during the card-signing period.
Her card should be counted.

Amneriz Rodriguez-Cruz and Modesta Mateo: Respondent argues these two
employees’ authorization cards were invalidated by union threats and coercion to induce
signing. Amneriz Rodriguez-Cruz initially testified union representatives promised her a
quarterly $50 raise if she signed and told her they would run her off her work if she did
not sign because the Union was going to win. In cross-examination, she agreed a union
representative had said the Union would “fight” for raises but would not be able to help
employees if employees did not support the Union. She could not recall whether the
individual who said “they” would run her off was a man or a woman, and she did not
recall whether union organizers said if employees did not support the Union, the
employer could run the union organizers off. Because of the testimonial inconsistencies,
I cannot credit her testimony of being threatened or improperly induced to sign an
authorization card. Modesta Mateo testified that when she asked what would happen if
the Union did not win, union organizers said if she did not sign a card, she might lose her
job. In cross-examination, she said a coworker, in the presence of union
representatives, told her she should join the union to get better benefits. After hearing
that, she completed her card. I find no credible threat in the alleged statements made to
Modesta Mateo.

64 The apartment number appears as #2 on the card and #1 on company records.

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Maria Elena Gallegos, Sergio Moreno, Iliana Lopez Torrez: Respondent contends that
in soliciting these employees’ cards, the Union misrepresented that a majority of
employees had already signed cards and thereby improperly induced card completion.
Some courts have held that an authorization card can be invalidated by a
misrepresentation that an employee majority has already signed. See e.g., NLRB v.
Roney Plaza Apartments, 597 F. 2d 1046, 1051 (5th Cir. 1979), cited by Respondent.
The Board, however, has considered such statements do not invalidate authorization
cards. Mercedes Benz of Orland Park, supra at 1030 (“everybody was joining” remark
did not invalidate card); Mid-East Consolidation Warehouse, 247 NLRB 552, 560 (1980)
(“Statement that ‘everybody’ had signed seems like little more than salesmanship or mild
puffery.”) Even assuming such misstatements would invalidate authorization cards, the
evidence herein is too vague to permit me to conclude that misstatements were actually
made by any Union representatives or agents. Maria Elena Gallegos could not identify
who had told her all coworkers had signed and in cross-examination said at the time she
signed the card, “there were a lot of people there, and they just told me to sign that
because my other co-workers had already signed.” Sergio Moreno testified that he
signed an authorization card on April 29 after someone called Miguel told him “some 41
people…had already signed, the majority.” Miguel’s statement may well have been an
accurate representation since by the close of the following day, the Union had obtained
107 authorization cards, but in any event, he did not assert a majority of employees had
signed since 41 was clearly not most of the employees. Iliana Lopez Torrez testified
that union representatives told her to sign a card because “we were only lacking some of
[her] coworkers and myself” and “to sign so that the Union could win.” It is not clear from
her testimony that union representatives misrepresented a majority had already signed.
Rather, the statement could be understood, in the context of the Union’s needing the
signatures so it could win, as a representation that only Iliana Lopez Torrez and some of
her coworkers needed to sign cards to attain a majority. I conclude Respondent has not
carried its burden of showing these cards to be invalid.

Marta Osorio, Alberto Rivera: Respondent contends the signatures on cards bearing
these employees’ names were not authenticated. Respondent is bound by its stipulation
to authentication of Marta Osorio’s signatures, and Ms. Pitkin observed the signature of
Alberto Rivera. Therefore, I conclude these cards are valid.

The evidence establishes that 107 of Respondent’s employees signed union
authorization cards during the card-signing period ending April 30. That number is a clear
majority of Respondent’s eligible employees. As of May 1, the Union represented a majority
of Respondent’s employees in the appropriate unit for purposes of collective bargaining.

3. The Propriety of a Bargaining Order

In Gissel Packing Co., 395 U.S. 575 (1969), The Supreme Court identified two
categories of cases in which a bargaining order is appropriate: Category I cases are exceptional
situations involving outrageous and pervasive unfair labor practices that traditional remedies
cannot resolve and which make a fair election impossible. Category II cases involve unfair labor
practices that are less extraordinary but that nonetheless have a tendency to undermine
majority support and impede the election process. As such unfair labor practices render the
possibility of a fair election slight, "employee sentiment once expressed through cards
would…be better protected by a bargaining order." Id, at 614-615.

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The instant matter meets the standards for a Gissel category II bargaining order.
Respondent refused to return Mr. Zarate, Ms. Ramirez, and Mr. Avena to work and discharged
them for engaging in a protected work stoppage during the course of a protected employee
demonstration. Respondent did so in such open and loudly conspicuous circumstances that
only singularly reticent and reclusive unit employees could have remained unaware of
Respondent’s actions.65 The discharge of visibly active union adherents has an especially
pernicious effect on other employees. National Propane Partners L.P, 337 NLRB 1006 (2002).
Awareness of Respondent’s motivation in refusing employment to Mr. Zarate, Ms. Ramirez, and
Mr. Avena was general, and many employees discussed with union representatives their
concern over coworkers having been “fired.” The evidence thus establishes pervasive impact or
dissemination of the unlawful conduct, and it is reasonable to infer the dramatic decline in
employees’ signing authorization cards thereafter was an immediate consequence of
Respondent’s overt unfair labor practices.

Respondent’s coercive conduct did not end with its refusal to reinstate and its discharge
of the three sorting employees. Mr. Lomax repeatedly informed employees he was affronted by
the demonstration. Ms. Garcia improperly involved herself in authorization card revocation.
Respondent issued an unlawful warning notice to Ms. Espinoza. In its election victory
celebrations, Respondent sent a clear message to all employees that desirable employee
teamwork was inconsistent with union adherence and implicitly threatened employees with
reprisals if they continued to engage in union activities. Finally, Ms. Garcia directly coerced and
restrained two employees from engaging in lawful union discussion with other employees. In
these circumstances, Respondent’s unfair labor practices are unremedied, their consequences
are ongoing, the possibility of erasing their effects is slight, and the holding of a fair election is
improbable. See Joseph Stallone Electrical Contractors, Inc., 337 NLRB 1139 (2002); Debbie
Reynolds Hotel, Inc., 332 NLRB 466, at fn. 8 (2000).

4. Respondent’s Estoppel Defense

Respondent asserts that during the hearing, two union agents intentionally
eavesdropped on attorney-client communications. Based on what the agents overheard,
Counsel for the General Counsel amended the complaint. After presenting evidence on the
amended allegations, Counsel for the General Counsel withdrew them, presumably as lacking
merit. Respondent contends its due process rights were infringed upon by the Union’s alleged
misconduct and the General Counsel’s acceptance of it, and that the General Counsel should
therefore be estopped from seeking a bargaining order. Respondent provides no authority in
support of its estoppel theory, and I can find none. Accordingly, I decline to estop the General
Counsel from seeking a bargaining order.

E. Objections to the Election

Following the May 29 election, herein, the Union filed timely objections to conduct
affecting the results of the election on June 4. The objections, in essential part, are as follows:
1. The conduct alleged in Case No. 28-CA-18708 [the original charge filed herein].
2. On the day of the election…employees had to go through the Employer’s office in
order to get to their work stations and the polling place…
65 Respondent argues the terminations, even if unlawful, do not warrant a bargaining order
because the terminations affected a “miniscule” part of the very large unit. Because of the open
and notorious manner of the discharges, the argument is unpersuasive.

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3. Within 24 hours of the election, employees received from the Employer
[objectionable] literature…
4. On the day of the election, a large, anti-union banner was put up where it could
be seen easily by the employees lined up for the polling place and near the
official NLRB Notice of election…
5. Employees who were lined up to enter the polling place were requested by
Employer representatives to leave the line to meet with management.
6. The Employer coerced employees into signing statements asserting that they
signed union authorization cards because the Union forced them to do so.

The evidence adduced in support of the Union’s objections is essentially the same
evidence that supports unfair labor practices herein. The Board has consistently held that
"conduct in violation of Section 8(a)(1) that occurs during the critical period prior to an election is
‘a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an
election.'" IRIS U.S.A., Inc., 336 NLRB 1013, slip op. 1 (2001) citing Dal-Tex Optical Co., 137
NLRB 1782, 1786 (1962).66

Respondent argues that any misconduct was de minimus and did not affect the election. A
narrow exception for minimal or isolated misconduct does exist, Clark Equipment Co., 278
NLRB 498, 505 (1986). The exception does not apply here, as Respondent's unlawful conduct
was widespread and substantial, involving job loss and coercive statements made to most unit
employees.

In light of my finding of pervasive 8(a)(1) and (3) conduct addressed by the objections, I
sustain the objections consistent with my findings herein. When the Board imposes a bargaining
order, the election must be set aside and the petition for election dismissed. Parts Depot Inc,.
332 NLRB 670 (2000); Great Atlantic & Pacific Tea Co., 230 NLRB 766 (1977); Irving Air Chute
Co., Marathon Division, 149 NLRB 627 (1964). Accordingly, in consideration of the bargaining
order, appropriate herein, I recommend the election be set aside and the Union's petition in Case
28-RC6175 be dismissed.

Conclusions of Law

1. Respondent violated Section 8(a)(1) of the Act by
(a) Equating engaging in protected activity with disloyalty to Respondent.
(b) Informing employees wages would be frozen during any contract negotiations.
(c) Soliciting employees to revoke union authorization cards.
(d) Issuing a written warning notice to Elena Espinoza for conduct during the course of
protected activity.
(e) Impliedly threatening employees with reprisals if they continued to engage in union
or other protected activities.
(f) Orally reprimanding Elena Espinoza and Yolanda Pena for engaging in protected
activity.

66 The critical period during which the parties' conduct will be scrutinized for its impact on
voters generally commences with the filing of the representation petition. The National League
of Professional Baseball Clubs, et al., 330 NLRB 670 (2000). The Union filed the instant petition
on April 30.

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2. Respondent violated Section 8(a)(3) and (1) of the Act on March 22 by discriminatorily
refusing to reinstate and discharging striking employees, Isabel Avena, Maria Ramirez, and
Jesus Zarate.

3. The following unit of Respondent's employees is appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the Act:

All full-time and regular part-time production employees, seamstresses, laundry workers,
maintenance (janitors), stock workers I, house keeping attendants I, supervisors I
(lead/hourly), and shipping and receiving employees, employed by the Employer, at its
laundry facility located at 4445 South 36th Street, Phoenix, Arizona; excluding all other
employees, linen room attendants, office clericals, mechanics, maintenance mechanics,
engineers, route drivers, drivers I, confidential employees, guards and supervisors as
defined in the Act.

4. The Union has been at all times since May 1, and is, the exclusive bargaining representative
of the employees in said unit for the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.

5. The unfair labor practices set forth above affect commerce within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act.

Remedy

Having found that Respondent has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

Respondent having discriminatorily refused to reinstate and discharged Isabel Avena,
Maria Ramirez, and Jesus Zarate, it must offer them reinstatement insofar as it has not already
done so and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The recommended Order
will also provide that Respondent bargain in good faith with the Union as the exclusive collective
bargaining representative of the above-described unit.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended67

ORDER

Respondent, The Commercial Linen Exchange, A Division of the Sodexho Corporation,
its officers, agents, successors, and assigns, shall

67 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 purposes.

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1. Cease and desist from

(a) Refusing to reinstate or discharging any employee for striking in support of the Union
of Needletrades, Industrial and Textile Employees, AFL-CIO, CLC (UNITE), and to
discourage employees from engaging in protected activities.
(b) Telling employees they have been permanently replaced when they have not been.
(c) Equating engaging in protected activity with disloyalty to Respondent.
(d) Informing employees wages will be frozen during any contract negotiations.
(e) Soliciting employees to revoke union authorization cards.
(f) Issuing a written warning notice to any employee for conduct during the course of
protected activity.
(g) Suggesting employees quit their jobs or seek other employment or otherwise
impliedly threatening employees with reprisals if they continued to engage in union or
other protected activities.
(h) Orally reprimanding or caution employees for discussing the union or otherwise
engaging in protected activity.
(i) Telling employees not to talk to other employees about the Union or working
conditions while permitting them to talk about other non-work related matters.
(j) 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.

1. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request, bargain with Union of Needletrades, Industrial and Textile Employees,
AFL-CIO, CLC (UNITE) as the exclusive representative of the employees in the
following appropriate unit concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed agreement:

All full-time and regular part-time production employees, seamstresses, laundry
workers, maintenance (janitors), stock workers I, house keeping attendants I,
supervisors I (lead/hourly), and shipping and receiving employees, employed by the
Employer, at its laundry facility located at 4445 South 36th Street, Phoenix, Arizona;
excluding all other employees, linen room attendants, office clericals, mechanics,
maintenance mechanics, engineers, route drivers, drivers I, confidential employees,
guards and supervisors as defined in the Act.

(b) Within 14 days from the date of this Order, insofar as it has not already done so,
offer Isabel Avena, Maria Ramirez, and Jesus Zarate full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privileges previously
enjoyed.
(c) Make Isabel Avena, Maria Ramirez, and Jesus Zarate whole for any loss of earnings
and other benefits suffered as a result of the discrimination against them in the
manner set forth in the remedy section of the decision.
(d) Expunge from its files any reference to the unlawful discharges of Isabel Avena,
Maria Ramirez, and Jesus Zarate and thereafter notify them in writing that this has
been done and that the discharges will not be used against them in any way.
(e) Expunge from its files any reference to the unlawful discipline issued to Elena
Espinoza and Yolanda Pena and thereafter notify them in writing that this has been
done and that the discipline will not be used against them in any way.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated

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by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its plant in Phoenix, Arizona,
copies of the attached notice marked “Appendix.”68 Copies of the notice, on forms
provided by the Regional Director for Region 28 after being signed by Respondent's
authorized representative, shall be posted by Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings,
Respondent has gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by Respondent at
any time since May 1, 2003.
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that 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, at San Francisco, CA: March 3, 2004

Lana H. Parke
Admnistrative Law Judge

68 If this Order is enforced by a Judgment of the United States Court of Appeals, the words
in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(SF)-18-04
Phoenix, AZ

APPENDIX
NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT do anything that interferes with these rights. More particularly,
WE WILL NOT discharge or refuse to reinstate before we have permanently replaced any of
you for supporting the Union of Needletrades, Industrial and Textile Employees,
AFL-CIO, CLC (UNITE!) (the Union) or for engaging in a protected work stoppage.
WE WILL NOT tell you that you have been permanently replaced when you have not been.
WE WILL NOT say or imply you are disloyal if you support the Union.
WE WILL NOT tell you your wages will be frozen during contract negotiations.
WE WILL NOT ask or suggest that you revoke your union authorization cards.
WE WILL NOT Issue a warning notice to any employee for engaging in any protected activity.
WE WILL NOT suggest employees quit their jobs or seek other employment if they want to
engage in union or other protected activities or to be represented by the Union.
WE WILL NOT orally reprimand or caution employees for discussing the Union or engaging in
other protected activity.
WE WILL NOT tell you not to talk to other employees about the Union or your working
conditions while permitting you to talk about other non-work related matters.
WE WILL NOT In any like or related manner interfere with, restrain, or coerce
employees in the exercise of the rights listed above.

WE WILL, on request, bargain with the Union and put in writing and sign any agreement
reached on terms and conditions of employment for our employees in the following
bargaining unit:
All full-time and regular part-time production employees, seamstresses, laundry
workers, maintenance (janitors), stock workers I, house keeping attendants I,
supervisors I (lead/hourly), and shipping and receiving employees, employed by the
Employer, at its laundry facility located at 4445 South 36th Street, Phoenix, Arizona;
excluding all other employees, linen room attendants, office clericals, mechanics,
maintenance mechanics, engineers, route drivers, drivers I, confidential employees,
guards and supervisors as defined in the Act.
JD(SF)-18-04
Phoenix, AZ

WE WILL, within 14 days from the date of the Board’s Order, insofar as we have not already
done so, offer Isabel Avena, Maria Ramirez, and Jesus Zarate full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previously enjoyed.
WE WILL make Isabel Avena, Maria Ramirez, and Jesus Zarate whole for any loss of earnings
and other benefits resulting from their discharges, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges of Isabel Avena, Maria Ramirez, and Jesus Zarate
and WE WILL, within 3 days thereafter, notify them in writing that this has been done
and that the discharge will not be used against them in any way.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discipline of Elena Espinoza and Yolanda Pena and WE
WILL, within 3 days thereafter, notify them in writing that this has been done and that the
discipline will not be used against them in any way.

The Commercial Linen Exchange,
A Division of the Sodexho Corporation

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (602) 640-2146.
JD(SF)-18-04
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

THE COMMERCIAL LINEN EXCHANGE,
A DIVISION OF THE SODEXHO CORPORATION

and Cases 28-CA-18708
28-CA-18807
28-CA-18948
UNION OF NEEDLETRADES, INDUSTRIAL
AND TEXTILE EMPLOYEES, AFL-CIO, CLC
(UNITE)

THE COMMERCIAL LINEN EXCHANGE,
A DIVISION OF THE SODEXHO CORPORATION

and Case 28-RC-6175

UNION OF NEEDLETRADES, INDUSTRIAL
AND TEXTILE EMPLOYEES, AFL-CIO, CLC
(UNITE)

DECISION AND RECOMMENDATION ON OBJECTIONS
TABLE OF CONTENTS

Page
Statement of the Case…………………………………………………………………. 1
Issues……………………………………………………………………………………. 2
Findings of Fact………………………………………………………………………… 3
I. Jurisdiction…………………………………………………………………………… 3
II. Alleged Unfair Labor Practices……………………………………………………. 4
A. The Union Organizing Campaign………………………………………………… 4
B. Alleged Independent Violations of Section 8(a)(1) of the Act…………………. 5
1. Alleged Surveillance and Threat of Reprisal…………………………………. 5
2. Alleged Threat of Discharge…………………………………………………… 5
3. Informing Employees That Union Activities Were Viewed
as a Personal Affront…………………………………………………………… 6
4. Statements Made at Video Presentations……………………………………. 6
5. Respondent Involvement in Authorization Card Rescission………………... 7
6. May 10 or 11 Meeting Between Mr. Gaitan and Mr. Lomax………………... 7
7. Ascribing Discharge of an Employee to Antiunion Animus………………… 7
8. Events at the May 29 Vote Tally………………………………………………. 8
9. The Post-Election Celebrations……………………………………………….. 8
10. Post-election Grant of Benefits……………………………………………….. 9
C. Alleged Violations of Section 8(a)(3) of the Act…………………………………. 9
1. May 1: Employee Presentation of Petition and Work Cessation…………… 9
2. Replacement of Strikers and Offers of Reinstatement……………………… 13
3. Discharge of Carmen Lozania…………………………………………………. 14
JD(SF)-18-04

4. May 2 Warning Notice to Ms. Espinoza………………………………………. 17
5. Mid-June Oral Reprimands to Ms. Espinoza and
Yolanda Dominguez Pena……………………………………………………… 17
D. The Appropriate Unit……………………………………………………………….. 18
III. Discussion…………………………………………………………………………… 19
A. Independent violations of Section 8(a)(1) of the Act……………………………. 19
1. Alleged Surveillance and Threat of Reprisal…………………………………. 19
2. Informing Employees That Union Activities Were Viewed
as a Personal Affront……………………………………………………………. 20
3. Statements Made at Video Presentations……………………………………. 20
4. Respondent’s Involvement in Authorization Card Revocation……………… 20
5. May 2 Written Warning Notice to Ms. Espinoza……………………………… 21
6. The Post-Election Celebrations………………………………………………... 21
7. Post-election Grant of Benefits………………………………………………… 22
8. Oral Reprimands of Ms. Espinoza and Ms. Pena…………………………… 23
B. Violations of Section 8(a)(3) of the Act…………………………………………… 23
1. Discharge of Striking Employees………………………………………………. 23
2. Discharge of Carmen Lozania…………………………………………………. 25
C. Alleged Violations of Section 8(a)(5) of the Act…………………………………. 28
D. Bargaining Order as Remedy……………………………………………………… 28
1. The Appropriate Unit……………………………………………………………. 28
2. Majority Status of the Union……………………………………………………. 30
3. The Propriety of a Bargaining Order…………………………………………... 34
4. Respondent’s Estoppel Defense………………………………………………. 35
E. Objections to the Election………………………………………………………….. 35
Conclusions of Law…………………………………………………………………….. 36
Remedy………………………………………………………………………………….. 37
Order……………………………………………………………………………………… 37
Appendix