Tortilleria La Poblanita

National Labor Relations Board - Administrative Judge Opinions

Mar 26, 2007

02-CA-037455 (N.L.R.B. Mar. 26, 2007)

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Yonkers, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
TORTILLERIA LA POBLANITA
Case Nos. 2-CA-37455
2-CA-37468
and 2-CA-37471
2-CA-37473
UNITED WORKERS OF AMERICA, LOCAL UNION 660
Susannah Z. Ringel and Olga C. Torres
New York, New York for the General Counsel
Mitchell I. Weingarden (Marsh Menken & Weingarden PLLC)
White Plains, New York, for the Respondent
DECISION
Statement of the Case
MINDY E. LANDOW, Administrative Law Judge. This case was tried in New York, New
York on September 18-21 and October 5, 30 and 31, 2006.1 Based upon charges and amended
charges filed on January 25 and 31, February 2, March 13 and April 18 by United Workers of
America, Local Union 660 (the Union) in the above-captioned cases, an Order Consolidating
Cases, Consolidated Complaint and Notice of Hearing (the complaint) was issued on July 31
against Tortilleria La Poblanita (the Respondent). The complaint alleges, in essence, that
Respondent violated Sections 8(a)(1), (3) and (5) of the Act by withdrawing recognition from and
failing and refusing to bargain with the Union as the exclusive collective-bargaining
representative of certain of its employees; by discharging its employee Juan Hernandez and by
committing various violations of Section 8(a)(1) of the Act including: threatening employees with
adverse consequences, discharge, reduced hours and plant closure because of their support for
the Union; promising employees increased wages and benefits if they abandoned their support
for the Union; interrogating employees regarding their Union sympathies; threatening
employees with discharge if they refused to complete a poll disclosing whether they support the
Union; informing employees that an employee was discharged for engaging in protected
conduct and conditioning the reinstatement of that employee upon employees rejecting the
Union; conditioning the reinstatement of a discharged employee upon the withdrawal of charges
before the Board and soliciting employees to sign a petition withdrawing their support for the
Union. On August 22, Respondent filed an Answer denying the material allegations of the
complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following

1 All dates are in 2006 unless otherwise specified.
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Findings of Fact
I. Jurisdiction
The Respondent makes and distributes tortillas from its facility in Yonkers, New York to
wholesale customers. Respondent has admitted that annually, in the course and conduct of its
business operations, it sells and ships goods valued in excess of $50,000 from its facility directly
to points outside the State of New York. Accordingly, I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Siemons
Mailing Service, 122 NLRB 81 (1959).
II. Labor Organization Status
Respondent has denied knowledge or information sufficient to form a belief as to
whether the Union is a labor organization. As discussed in further detail below, the record
establishes that the Union is an organization in which employees participate and which exists
for the purpose of dealing with employers concerning employee wages, hours and other terms
and conditions of employment. Accordingly, the record establishes, and I find, that the Union is
a labor organization within the meaning of Section 2(5) of the Act. Alto Plastics Mfg. Corp., 136
NLRB 850, 851-852 (1962).
III. The Alleged Unfair Labor Practices
Respondent’s Business Operations
Since August 2005, Respondent has been owned by Pedro Reyes (hereinafter Reyes)
and his brother Joel Reyes. Prior to that time, the facility was owned by Carlos Reyes (their
father) and Elminio Garcia. Reyes was questioned by Counsel for the General Counsel
pursuant to Rule 611(c) of the Federal Rules of Evidence. During this testimony, Reyes
admitted that from 1994 until he assumed ownership, he had been the manager of the facility.
He subsequently denied that he held a managerial role, and claimed that he “just helped out” by
fixing machinery and checking the tortillas. Since becoming owner of the facility, Reyes’
responsibilities have expanded to include paying the bills, being more attentive to clients,
ordering supplies, selling the product and maintaining the physical facility. Reyes asserted that
he did not know whether any employees had been hired during the period of time from 1994 to
2005.
One of the issues herein, raised and relied upon by the Respondent, involves whether
Reyes understands English.2 When asked whether he deals with clients in English, Reyes
stated that the majority of his clients speak Spanish. If they do not, he asks them to get
someone to speak Spanish to him. He did acknowledge, however, that he speaks some
English, at times, but not often. As discussed below, there is some evidence in the record to the
contrary, to the effect that Reyes can both speak and read English.
The Respondent operates on two shifts. The day shift runs from 7:00 a.m. to 3:00 p.m.
and the night shift runs from 3:30 p.m. to 1:00 a.m. There are twelve employees on the day
shift: eight operate the machinery, one is a mixer, two pack spices and there is also one general
warehouse employee who prepares boxes for shipping. There are nine employees working

2 Reyes testified with the assistance of a Spanish-language interpreter.
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during the night shift, and some employees cross over and work both shifts. Factory employees
are paid $6.75 per hour.
Respondent also employs drivers who make deliveries to customers. These employees
are paid on a weekly basis and earn between $450 and $500 per week. They do not perform
production work, and it appears from the record that the drivers have limited interaction with
those employees who work in the factory. It is undisputed that Spanish is the primary language
for a majority, if not all, of Respondent’s employees and for some, their only language.
Reyes testified that, prior to February 2006, he paid his employees in cash and initially
stated that he did not know whether records of these payments were kept. Reyes then recalled
that the company had an accountant in New Jersey, who “would send proof by fax” of
deductions that were made for approximately eight employees and would “file the income tax for
the workers.” Since some time in February 2006, Respondent’s payroll has been processed by
a payroll service called Payroll by Paychex, Inc. When questioned by Counsel for the General
Counsel regarding the payroll for the pay period ending February 24, Reyes identified those
employees who had been employed on January 9 (the date of the alleged demand for
recognition by the Union). Reyes identified 15 individuals in job classifications encompassed by
the bargaining unit sought by the Union.3 In addition, he named four individuals in those job
classifications who had been employed on January 9, but were no longer employed as of the
date the February 24 payroll was prepared.4
Jose Raul Diaz was first hired by the Respondent as an accountant in January 2006. He
testified that when he reviewed Respondent’s records he discovered that Respondent did not
maintain proper records for its employees and began asking employees to provide their social
security numbers and identification. Under questioning by Counsel for the General Counsel,
Diaz acknowledged that approximately 15 employees did not provide documentation at first, and
that most of these employees continued to work for the Respondent.5 Diaz further admitted that
as of March 2006, several employees had failed to provide work authorization papers and that
these employees were still working for Respondent as of the date of his testimony.
The Union’s Organizing Campaign
Gilberto Mendoza, who is also known, and referred to in the record, by the nickname
“Tito,” (hereinafter referred to as Mendoza), has been an organizer for the Union for
approximately two years. The Union had been conducting an organizing campaign among
employees of another employer near the Respondent’s facility, and the organizers decided to
approach Respondent’s employees as well. On December 29th, Mendoza, Director of
Organizing Jordan El-Haj and another organizer named John Mendoza were in the vicinity and
saw employees from the Tortilleria, who were on their lunch break. John Mendoza was
instructed to speak with them, which he did. In the process, he gave the employees Union

3 The following employees were identified by Reyes as being employed in job classifications covered
by the bargaining unit sought by the Union on January 9: Felimon Aquino, Gabino Aquino, Domingo
Benitez, Luis Cordova, Antonio Flores, Juan Fuentes, Paulino Martinez, Pedro Mejia, Gregorio Morales,
Arturo Aquino, Roman Chavez, Nicandro Olguin, Hipolito Sotelo, Celso Vivar and Antonio Zuniga.
4 These are Cinthya Tapia Guzman, Juan Hernandez, Miguel Angel Linares and Angel Tigre. The
transcript erroneously refers to Linares as “Miguel Angel Nadas” and to Tigre as “Angel Guerra” and is
hereby amended to reflect the correct names of these individuals.
5 The February 24 payroll shows that out of 23 individuals on the payroll at that time (including both
Reyes brothers), 12 employees were missing a valid social security number.
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authorization cards.
One of the issues raised by the Respondent is whether the employees in question who
signed authorization cards understood the import of what they were signing. The cards
distributed to employees provide in relevant part: “I hereby authorize Local 660, UNITED
WORKERS OF AMERICA, to represent me and, in my behalf, to negotiate and conclude all
agreements as to hours of labor, wages and other employment conditions. I hereby authorize
LOCAL 660 to collect from my employer all monies due to the union.” These provisions are in
English, and no Spanish translation is provided. The card also requests information such as
name, address, telephone number and the employer’s name. The card directs an individual to
sign and date it. A Spanish translation is provided for these items.
Juan Hernandez worked as a tortilla packer for Respondent during the day shift from
mid-2000 until his discharge on January 31. He and coworker Domingo Benitez were the
employees approached by John Mendoza, as described above. According to Hernandez, at
this time the Union representative explained to them that when employees put their information
on the card and signed it, they would be authorizing the Union to represent them in order to
enable them to negotiate with the company.6
The two men returned to work and distributed Union cards to other employees. At this
time Hernandez signed his own card, which he identified at the hearing. He also recalled
witnessing three other employees sign cards as well: Domingo Benitez, Luis Cordova
(hereinafter Cordova) and Antonio Flores. Hernandez testified that he explained the purpose of
the cards to his coworkers in “the manner in which I understood,” but acknowledged during
cross-examination that he could not read English. Cordova, who identified his own card,7 also
recalled seeing a number of other employees signing their cards at the same place and time.8
Cordova testified that he understood that, by signing the card, he was giving the Union the
power to “represent us legally so that they would fight for our rights with regard to a salary
increase, holidays, vacations and to have a better agreement, a better work conditions at the
company.” Cordova, who is able to read English to some extent, testified that he explained the
purpose of the cards to his coworkers.
Later that day, Hernandez, along with approximately eight other employees, met with
John Mendoza and Mendoza. Employees were told that if they signed the authorization cards,
the Union would have the opportunity to represent them, to get a contract and improve their
wages and benefits. According to Hernandez, employees had questions for the Union regarding
what potential benefits would accrue if they were to join up, and in what sense it would be
prejudicial to them. After employee questions were answered to their satisfaction, it was decided
to give the signed authorization cards to the Union. Hernandez, who had the cards, turned them
over to Mendoza.
Mendoza returned to the facility at 9:00 p.m. where he met with employees on the night
shift and distributed authorization cards. Mendoza described the purpose of the Union and told
employees generally what an employer could and could not do during the course of a union
campaign. Mendoza testified that he explained that the cards authorized the Union to represent

6 Juan Mendoza, who no longer works for the Union, did not testify herein.
7 Cordova was employed by Respondent on the date of his direct testimony. At some point in time
between the date of this testimony and his cross-examination on October 30, Cordova was discharged.
8 These employees are Juan Hernandez, Domingo Benitez, Paulino Martinez, Miguel Linadas,
Gregorio Morales, Hyman Filimon Aquino and Juan Fuentes.
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them and negotiate on their behalf with regard to wages and hours. Two of the employees
present on this occasion, Roman Chavez and Nicandro Olguin, testified herein.9 Counsel for
Respondent elicited testimony on cross examination that neither Chavez nor Olguin could read
English or what was stated in English on the card. Chavez stated, however, that Mendoza told
employees that “the card would mean that the union would represent us. He told us that
everyone was accepting that the union should represent us in front of the company.” Similarly,
Olguin testified that, “[Tito] started to tell us how the union could help us. The truth is we were
very interested because there were people who were working there for a long time and the
company really hasn’t done anything for us.” According to Olguin, Mendoza showed the
employees the cards and “told us that those cards were authorizing them to speak on our behalf
with the boss, and he told us what was involved.”
After this discussion, a number of employees signed authorization cards. Mendoza
recalled witnessing four employees who signed cards in his presence.10 Chavez and Olguin
both authenticated the cards they signed on that occasion and further testified that they
observed other employees signing cards as well.11
Subsequently, on January 8, El-Haj and Mendoza held a meeting with employees in the
parking lot of a fast food restaurant located near Respondent’s facility. Employees from both
shifts attended this meeting, and witness estimates of the number of employees who attended
varied from 16 to 21.12 Employees, especially those who had not been present on prior
occasions, voiced their doubts about joining the Union, and the Union representatives answered
employee questions. The employees decided that they wanted the Union to represent them,
and selected four workers to represent them in any future meetings with Respondent, one of
whom was Hernandez. Hernandez identified the other committee members by their first names:
Celso, Gregorio and Hipolito. It was also decided that employees would meet up with the Union
representatives on the following morning and request that Pedro Reyes recognize the Union.
The Alleged Recognition of the Union and Execution of the Recognition Agreement
The following morning, January 9, employees arrived and waited outside Respondent’s
facility along with El-Haj and Mendoza. At approximately 7:15 a.m., Reyes arrived and was
preparing to unload a delivery truck. The group approached him, and Reyes asked employees
why they were not working. According to Mendoza, he spoke with Reyes in Spanish and asked
him if he spoke English, and Reyes answered that he did. El-Haj then spoke with Reyes in
English, while Mendoza translated their conversation into Spanish so that the employees could
understand. El-Haj told Reyes that the employees would not work, and they wanted him to hear
what they had to say. He introduced himself and Mendoza and told Reyes that the employees
had asked the Union to represent them, and that the Union was requesting recognition.
According to El-Haj, he told Reyes that the Union had no intention of disrupting his business but
wanted to negotiate working conditions suitable for everyone. El-Haj showed Reyes a document
and explained that it was a recognition agreement, not a contract, and explained that it was an

9 At the time of his testimony, Chavez was no longer an employee of Respondent, having been
discharged on October 13. Olguin was a current employee at the time he testified.
10 These employees are Roman Chavez, Nicandro Olguin, Hipolito Sotelo and Celso Vivar.
11 These are Olguin, Sotelo, Vivar, as well as Arturo Aquino and Antonio Zuniga (Zuniga is
mistakenly referred to in the transcript as Funiga. The transcript is hereby amended to reflect his correct
name.)
12 The Union did not keep a list of attendees.
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acknowledgement that the Union represented the employees to discuss and reach agreement
on working conditions. Reyes then addressed the employees, in Spanish, asking them if what
El-Haj had stated was true; did they want the Union. At first the employees did not respond, and
Mendoza urged them to answer Reyes. The employees then responded “Si.” Reyes then said
okay, but that he wanted to unload the truck first. After the truck was unloaded, El-Haj, Mendoza
and Reyes proceeded to Reyes’ office.
When they were in the office, El-Haj provided Reyes with the document which had been
shown to him previously and again explained that it was not a contract containing terms and
conditions of employment. El-Haj asked Mendoza to translate for him but, according to the
testimony of both Union representatives, Reyes indicated that it was not required. The parties
had some further discussion, and Mendoza conversed with Reyes in Spanish. Reyes then
signed the agreement, and made a copy of it. The document admittedly signed by Reyes
provides as follows:
AGREEMENT made and entered into the 9TH day of January 2006 by and between
Tortilleria la Poblanita located at 4 Heriot Place, Yonkers, New York hereinafter called
the “Employer” and United Workers of America Local Union 660, hereinafter called the
“Union” located at 14 Bond Street, Great Neck, New York.
WITNESSETH:
WHEREAS, the Union is hereby recognized by the Employer as the sole and exclusive
Bargaining Agent for all employees within the Collective Bargaining Unit as hereinafter
defined; and
WHEREAS, the Employer is engaged in the food industry.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants and
Agreements hereinafter contained, it is AGREED as follows:
FIRST: The Employer does recognize the Union as the sole Collective Bargaining Agent
for all full-time and part-time production employees employed at the Employer’s facility
located at 4 Heriot Place, Yonkers, New York, including all production positions within
the above stated location; excluded all supervisors, managerial employees, watchmen
and guards as defined under the National Labor Relations Act.
SECOND: It shall be a condition of employment that all employees of the Employer
covered by this Agreement who are members of the Union on the effective date of this
Agreement shall remain members and those who are not members on effective date of
this Agreement shall on the thirty-first (31st) calendar day following the effective date of
this Agreement or execution thereof, whichever is later, shall become and remain
members in the Union. It shall also b a condition of employment that all employees
covered by this Agreement and hired on or after its effective date on the execution
thereof, whichever is later, shall on and from the thirty-first (31st) calendar day following
the beginning of such Agreement, become and remain in the Union.
TWENTY-ONE [sic]: This Agreement shall become effective as of the 9th day of January,
2006 and shall remain in full force and effect until the 9th day of January, 2007.
IN WITNESS WHEREOF, the parties hereto have attached their hands and seals and
certified that they are authorized by their members to enter into this Agreement the day
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and the year first above written.
Reyes acknowledged signing this document (hereinafter referred to as the recognition
agreement). Reyes stated, however, that he was nervous and did not know what the Union
representatives said to him. He further testified that he did not know what the paper was, did not
know what a “recognition agreement” was at the time and believed that “it was like a permit to
allow employees to work.” Reyes testified that the Union representative “got too close to me and
started to scream.” He further testified that the Union told him that unless he signed the
agreement, employees would not work. According to Reyes, he took the paper and went to look
for someone, like a lawyer, to tell him what it said. He further testified that he agreed to sign the
paper because production had stopped and he knew that if he did not sign it the employees
were not going to work.
The Union’s Demands for Bargaining
Reyes testified that, after he signed the recognition agreement, the Union called him to
request bargaining, and he told them to speak with his lawyer. He did not remember whether
the Union ever visited the factory again, but stated that if they had come he would have given
them his attorney’s business card. According to Reyes, other than the one occasion where he
signed the recognition agreement, there was no other meeting or occasion where the Union
came to his facility accompanied by employees. Reyes offered no testimony regarding any
further encounter with the Union or any of its representatives.
The testimony of Union and employee witnesses differs significantly from Reyes’
account of events. After obtaining Reyes’ signature on the recognition agreement, El-Haj had it
executed by Union President Brian McCarthy and signed by three of the four committee
members, as well. Several days later, El-Haj and Mendoza returned to the facility and provided
Reyes with a copy of the fully executed recognition agreement, and requested a date to
commence negotiations. At this point in time, Reyes asked to see the Union cards that
employees had signed. El-Haj stated that this was not a normal practice, because the Union
wanted to keep the identities of the card signers confidential. Reyes asked how he could know
who else had signed the recognition agreement, and El-Haj told him that one of the signatures
belonged to Hernandez.13 Reyes insisted on seeing the authorization cards and El-Haj offered
him the option of a neutral third-party card check, which Reyes declined. El-Haj asked Reyes to
consider a date to begin bargaining, and stated that the Union would return.
El-Haj and Mendoza returned to the facility on Wednesday, January 25. On this
occasion, they offered to let Reyes see the authorization cards, on the condition that he sign a
receipt stating that he had received them. Reyes stated that he would not sign anything.
According to Mendoza, Reyes then stated that he wanted to go to an election. Mendoza replied
that the time for that had passed, that employees had already told him they wanted the Union,
and he had agreed. The Union representatives again demanded that negotiations begin, but
Reyes refused to commit to any specific date, and they left the facility.
The Union representatives, accompanied by Hernandez, returned on Friday, January 27
between 3:00 and 3:30 p.m., which is during the changeover from the morning to evening shifts.
Hernandez entered the facility, found Reyes by the machines, told him that the gentlemen from
the Union wanted to speak with him and asked him to come outside. Reyes told Hernandez that
he was not going to come out and that they should “go to hell.” The Union representatives

13 El-Haj testified that he could not identify the other two names. They are not independently legible.
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decided to enter the facility and, with Hernandez, made their way to Reyes’ office. Other
employees stood by in the immediate vicinity. The Union representatives asked Reyes for a
date for negotiations. Reyes replied that he wanted to see the cards, and he was not going to
negotiate with the Union. El-Haj stated that the Union would not show Reyes the cards. The
discussion became heated, and Reyes accused the Union of trying to bully him. The Union
reiterated that it was time to get negotiations moving. Reyes then demanded that Hernandez
produce “papers.”14 Hernandez told him to tell that to everyone. Reyes left the office and
addressed the employees who were standing around, stating that he wanted papers from
everyone there and that whoever did not provide papers would be fired. El-Haj reiterated that
they wanted a date for negotiations and that the Union would file charges soon. Reyes angrily
told them to leave the premises.
On Monday, January 30, El-Haj and Mendoza were in the car when they received a
telephone call advising them that Respondent was holding a meeting with employees.15 The
Union representatives arrived at the facility some time after 3:00 p.m. Upon their arrival,
employees, together with Reyes and Diaz, approached them. Employees stated that they were
being asked to sign papers. Another individual came out of Reyes’ office holding a letter,
demanding to know who had sent it. That letter, which El-Haj had previously sent to Reyes,
states as follows:
On January 16, 2006 and January 25, 2006 I have approached you as the recognized
collective bargaining agent for your employees at your facility at 4 Heriot Place in
Yonkers New York.
On both these occasions as well as on the date you signed a recognition agreement you
have refused to begin negotiations with the United Workers of America Local Union 660.
We are now demanding that you begin negotiating with us and on January 26, 2006 we
have filed charges with the National Labor Relations Board for your refusal to negotiate.
El-Haj asked this individual if he was an attorney, and he replied that he was not. El-Haj
asked Mendoza to communicate this information to employees. In response to a question as to
whether he was a lawyer, El-Haj replied that he was not but that he was the employees’ legal
representative. This individual, whose name was never identified on the record, then stated to
the employees present that they had no papers, they couldn’t be in the Union and that they
were going to have to pay Union dues which would be taken out of their paychecks. Mendoza
countered these remarks by stating that employees could be in the Union even if they had no
papers and that the Union would negotiate a contract which would offset the amount of Union
dues which employees would have to pay.16 El-Haj brought out his cell phone, which also
functions as a tape recorder, and suggested that this individual say what he had to say into the
recorder. He then asked Reyes for a date for negotiations, and Reyes replied that he was not
going to negotiate with the Union and demanded that the Union representatives leave the
premises. According to El-Haj, Reyes was speaking in English during this encounter.

14 Hernandez testified that Reyes had asked him for work authorization papers two or three days
prior to this occasion. In addition, when Reyes commenced working for Respondent in 2000, then-owner
Garcia had made a similar request.
15 This meeting is discussed in further detail below.
16 In his testimony at the hearing, Mendoza referred to this as a “clothing allowance” but could not
explain why he used such a term. He did explain, however, that no reference to uniforms was intended.
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El-Haj and Mendoza provided a physical description of the unidentified individual with
whom they spoke. They described a tall gentleman, possibly of Mexican descent, with black hair
specked with grey and a mustache, wearing khaki pants and a white shirt. As discussed below,
this individual, who was described similarly by employee witnesses, is referred to in the
complaint and herein as the “mediator.”
In early February, Mendoza called the facility and spoke with Reyes. He suggested that
they start fresh, and begin negotiations. Reyes told Mendoza that his employees did not want
the Union any more. Mendoza replied that Reyes had scared them, but that employees still
supported the Union, and reiterated his request that Reyes commence negotiation. Reyes
refused his request.
Respondent’s January 30 Meeting with Employees
On January 30, during the shift change , a meeting was held for employees presided
over by Diaz, the Reyes brothers and the “mediator.” Diaz and the mediator were the primary
speakers.17 Employees were informed that the company wanted to negotiate with the
employees, not with the Union and that the company was looking into providing employees with
a wage increase and health insurance.18 During the course of this meeting, employees were
told that the Union was there to steal their money, and after two or three months they would get
rid of all the existing employees and put in their own people. The mediator told employees that
they should sign a paper stating that they did not want the Union. Both Hernandez and Gregorio
Morales (hereinafter Morales) spoke up at the meeting and noted that employees had requested
salary increases in the past, but nothing had ever been given to them. Reyes insisted that no
one had ever told him that employees wanted salary increases, a contention that was disputed
by employees. In response to a comment by Hernandez, Reyes told Hernandez to give him his
social security number and residence card and he would give him what was due to him under
the law.
Respondent Creates and Distributes a Ballot to Employees
Under questioning by Counsel for the General Counsel, Diaz acknowledged that,
pursuant to a request from the Reyes brothers, he created a document to be distributed among
Respondent’s employees. This document contains both English and Spanish versions of the
following text, and provides as follows:
VOTE
Date ____________
Today I am casting a vote to decide if I as an individual want to have a union

17 The witnesses who testified regarding this meeting variously attributed some comments to Diaz or,
alternatively, to the mediator. At times, the testimony was not clear as to precisely who was making these
statements to employees. There was, however, an overall consistency in the various witnesses’ testimony
regarding the topics brought up and discussed with employees, as set forth above.
18 Cordova testified specifically that Diaz asked employees to give him a little bit of time to look over
the payroll, but that the company was considering a $2.00 per hour wage increase for employees who
had been with the company for over six years, with a smaller raise for those who had been there for less
time. The mediator told employees that the company was looking into a health insurance plan for its
employees, but that they would have to assume half the cost.
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representation at my place of work TORTILLERIA LA POBLANITA INC. located at 4
Harriot Pl., Yonkers, N.Y. 10707
I am casting my vote today as follows:
YES I want to have a UNION representation at my place of work __________
Check mark
NO I don’t want a UNION representation at my place of work _________
Check mark
I understand that is vote is secret and I will obey the outcome of the majority
As discussed below, the record establishes that this document was distributed to
employees during the course of the workday on January 31. Employees were asked to place
their completed ballots in a box left by the door to the facility as they were leaving work.
According to the testimony of both Reyes and Diaz, none of the employees completed or
returned the ballot, as requested.19
The Discharge of Juan Hernandez
Hernandez testified that on January 31, some time between 2:00 and 3:00 p.m., the
mediator distributed the ballot described above to employees. He told employees that it was for
a vote to see whether employees wanted the Union, and that they should deposit their votes in
a box when leaving work. Hernandez refused to take the paper, and told the mediator to leave it
by his side.
When it was time to leave work, Diaz was standing at the door to the facility and asked
Hernandez for his paper. Hernandez replied that he didn’t have it. Diaz offered another to
Hernandez, who said that he was not interested.20 Diaz stated that if Hernandez would not take
the paper, he would be dismissed. According to Hernandez, he said, “fine,” and Diaz told him
not to come in on the following day. Hernandez waited outside for his coworkers and learned
that Juan Fuentes (hereinafter Fuentes) and Morales, had also been discharged as well.
Hernandez then called Mendoza, who stated that the accountant did not have the authority to
fire Hernandez, and that he should report to work the following day. Hernandez spoke with
Fuentes, and it was agreed that they would return to work the next day and if it proved to be a
fact that they had been discharged they would stop production so Reyes could explain why they
had been fired, since in their minds there was no reason for them to have been let go.
Mendoza testified that on the evening of January 31, Hernandez called him and reported
that the accountant had told him that he wasn’t going to work there anymore unless he signed a
paper that had been distributed earlier that day. According to Mendoza, Hernandez “described a
piece of paper that it was like voting yes or no.” Mendoza told Hernandez that that was illegal,
and he should not listen to the accountant, as he was not the boss. Mendoza confirmed that he

19 When first shown the ballot during his testimony, Reyes stated that he did not remember seeing it.
After having his recollection refreshed by his affidavit, Reyes acknowledged that it was shown to him in
either late January or early February by Diaz, and he authorized Diaz to distribute it to employees. Diaz
told him that no employee had completed or returned it.
20 Hernandez testified that Diaz offered him a paper that was rolled up in a way so that the printed
side could not be seen.
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advised Hernandez to return to work the following day, as if everything was normal, unless
Reyes said he was fired. Mendoza also advised Hernandez to insist that Reyes provide a
reason in front of witnesses if, in fact, he had been fired.
On cross-examination, Hernandez was asked whether he believed he had been
discharged because of his union activities. Hernandez replied, “It’s not what I believe. They just
terminated me without me knowing for what reason.” Hernandez was later asked whether it was
his understanding that he was discharged because he did not hand in the ballot. He stated that
he did not know.
When examined regarding this issue by Counsel for the General Counsel, Diaz admitted
that the ballot described above had been distributed to employees toward the end of their shift
on January 31, and they were asked to leave it in a box by the door. Diaz also admitted that at
the end of the shift, as Hernandez was leaving with three or four other employees he asked
them for papers. Diaz asserted, however, that at the time he was asking employees for the work
authorization documentation that employees had previously been asked to provide. According
to Diaz, when he made that request, Hernandez made a face at him in a disrespectful way, and
he discharged him for that reason. Thereafter, Hernandez continued to make faces at him. Diaz
testified that he would have fired other employees for not providing their documentation, but
they had proceeded ahead. According to Diaz, he asked Fuentes, who was leaving at the same
time, for his documentation, and fired him when he did not provide it. However, on the following
day, Fuentes arrived and gave his papers to Juan Reyes. According to Diaz, who was not
present on this occasion, these documents included a social security number and a driver’s
license. Diaz arrived at the facility at about noon the following day and, upon learning that
Fuentes had provided documentation, went to speak with him. Fuentes appeared contrite, so
Diaz asked Fuentes to forgive him and allowed him to stay. According to Diaz, the difference
between Hernandez, Fuentes and any other employee who did not provide documentation was
one of “attitude” and Hernandez’s disrespectful behavior.21
Diaz testified that Hernandez never provided him with a social security number or any
other form of identification. Hernandez’s personnel file, however, contained a photocopy of a
social security card (which was entered into evidence by Respondent) as well as a W-4 form
which was signed in mid -January. Diaz testified that the social security card that Hernandez
provided did not appear genuine to him because the number was typed and not computer
generated. In fact, on cross-examination, Hernandez confirmed that this card had not been
issued to him. According to Hernandez, Diaz had previously asked him for documentation, but
told him that he didn’t care where he got it from, and that he needed a social security number
because the company had to pay taxes. Hernandez testified that on the Monday following this
discussion, he provided Diaz with the social security card contained in his personnel file.
Reyes initially testified that he was present when Hernandez was fired, but later
acknowledged that he was not. He stated that Diaz had reported to him that he had fired
Hernandez because he had walked away from him when his documentation was requested.
Reyes also confirmed that he approved Diaz’s decision to discharge Hernandez for that reason,
and that Fuentes was allowed to return because he brought documents in on the following day,
and because he demonstrated a more respectful attitude. Reyes acknowledged that, prior to
January 2006, he had not asked employees for work authorization documentation but this was

21 The record contains no further evidence as to whether Morales was discharged or when he may
have been reinstated. As noted below, it appears from the record that he was present and working on the
following day. His name also appears in the February payroll referred to above.
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“because I was just starting to reorganize myself so there were a lot of things I didn’t know.”
Events of February 1
The following day, Hernandez returned to the facility. He did not find his time card, but
commenced working anyway. Fuentes arrived and began working as well. Approximately 15
minutes later, Reyes approached Hernandez and told him to “get out.” Hernandez asked why,
and Reyes replied that he did not want to see him there. Hernandez asked for a reason, and
Reyes insisted that he leave the facility. Hernandez turned to coworkers Cordova and Morales
and told them to shut their machines and to instruct Fuentes to shut his machine as well. The
employees did not comply. Hernandez approached Reyes and, according to Hernandez, Reyes
said, “What’s the matter with you?” and pushed him against a stack of filled tortilla boxes.
Hernandez then righted himself and turned off his machine and asked the others to do so as
well. Again, they did not do as asked. Reyes pushed Hernandez again, with a blow to his chest,
and then turned around and proceeded to his office. Hernandez followed him and yet again
directed his coworkers to turn off their machines, which they did not do. Hernandez then turned
off two other machines, but the workers manning them immediately turned them back on.
Hernandez then called Mendoza, and as they were speaking Reyes came out of his
office with a video camera. Hernandez returned to his work site, and Reyes came over with the
camera in hand and ordered Hernandez to leave. Hernandez replied that Reyes had to give him
a reason, and aside from that Reyes owed him an explanation of why he had hit him. Reyes
asked who Hernandez had as a witness, and he indicated all of his coworkers. At this point,
Reyes called the police.22 Hernandez continued to work. Some five minutes later, another
employee came over and said that Reyes had sent him over so that he could replace
Hernandez. Hernandez refused to leave and continued working, with his coworker remaining at
his side. After about 15 minutes, the police arrived. Reyes told the police that Hernandez had hit
him, which Hernandez denied, stating that Reyes had in fact hit him. One of the police officers
told Hernandez, in Spanish, to go outside. As they were leaving Mendoza arrived, and spoke
with the police officers in English. After this, Hernandez left the premises with Mendoza and the
police.
Mendoza testified that he received a phone call from Hernandez at about 7:15 that
morning. He could hear Reyes in the background. Hernandez told Mendoza that Reyes would
not give him a reason, he had a camcorder, and that Reyes had pushed and hit him. Mendoza
proceeded to the facility and the police had already arrived. Mendoza asked employees if Reyes
had hit Hernandez, and they confirmed that they had witnessed that. No charges were filed,
however.
The only testimony offered by Respondent on the issue of Hernandez’s conduct on
February 1 was through questioning of Reyes,23 as follows:
Q: [by Counsel for Respondent] The questions I’m asking you about, the behavior of
the two the next day – I’m asking you questions about the next morning. Were you there
and did you personally observe that behavior?
A. Yes. From Juan Fuentes good, and from Juan Hernandez no.

22 According to Hernandez, Reyes was speaking in English at this point in time, but he recognized
that he was speaking to the police.
23 Diaz was not at the facility at the time.
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Q: When you say no regarding Mr. Hernandez – and this is the last question or
questions regarding this –what do you mean by Mr. Hernandez not being good?
A: He was working on the machine and he had already been fired. He started to
scream and to turn off the machines.
Q: Why was Mr. Hernandez fired?
A: Because of the documentation. He didn’t bring the documentation.
Hernandez’s Subsequent Communications with Respondent
Hernandez testified about a series of subsequent telephone conversations with known
and self-identified agents of Respondent. On February 13, Diaz called Hernandez and asked
him whether he wanted to return to work. Hernandez said yes, but he wanted to speak with
someone from the company, and Diaz gave the phone over to Reyes. Reyes told Hernandez
that if he wanted to return he would have to sign some papers to, as Hernandez put it,” take
back the lawsuit.” Hernandez refused, and Reyes told him that unless he did so he could not
return. Hernandez told him that he had spoken with Cordova, who had reported that there had
been a discussion with an attorney who said that his discharge had been illegal, and it was
illegal to make employees sign papers. Hernandez then overheard Reyes tell Diaz, “he says
that the papers that we’re making him sign are illegal.” Hernandez then overheard Diaz reply,
“illegal are the papers that they signed for the union.” Diaz then got on the phone and told
Hernandez that he didn’t care whether he joined or did not join the union, but only cared about
whether Hernandez would sign a paper stating that he did not owe the company anything and
the company did not owe him anything. Hernandez said he would not sign such a paper, and
Diaz stated that an attorney would be speaking with him. Neither Reyes nor Diaz offered any
testimony regarding this issue.
About 20 minutes later, Hernandez received a telephone call from someone who
identified himself as Wilson Soto. He stated that the company realized that they had made a
mistake in firing Hernandez, and they wanted him to return to work. Soto offered to pay
Hernandez for the days that he was owed. Hernandez replied that Reyes had told him that he
had to sign some papers. Soto said that the company would take him back, and he did not have
to sign anything. Hernandez responded that Reyes had insisted that he sign papers before he
could return to work. Soto said he did not know about that, and he would check with the Reyes
brothers and speak with Hernandez later.
Two days later, on February 15, Hernandez received a telephone message from Soto
who said that Hernandez could return to work, that they would be waiting for him in the office
with an envelope with money inside, and he would not have to sign anything at that time. Soto
added, however, that one week later Hernandez would have to (as Hernandez put it), “sign a
piece of paper where we would knock down the allegations. . .” On the following day,
Hernandez spoke by telephone with Joel Reyes. Hernandez stated that he had heard the
message that Soto had left for him, but that he had heard it late in the day. Hernandez asked
whether he could still go back to his job. Joel Reyes said he didn’t know anything about that,
and that Soto was not the lawyer on the case regarding the Union. He offered to give
Hernandez the name and number of his attorney, which he did. He also told Hernandez that the
attorney spoke only English. Since that time, Hernandez had no further contacts with any
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representative of Respondent. Hernandez asked Mendoza to contact the attorney on his
behalf.24
Respondent’s Subsequent Meetings with Employees
After Hernandez was discharged, Respondent held a series of meetings with its
employees at which the Union was discussed. Evidence regarding what occurred at these
meetings was provided by Cordova, Chavez and Olguin.25 Under questioning from Counsel for
the General Counsel, Diaz acknowledged that on a few occasions he had told employees that
they had good jobs. He admitted asking them why they wanted the Union and inquiring as to
what could the Union do for them that the Employer could not. Diaz characterized these
communications as “informal conversation.” Other than Diaz’s testimony, described above,
Respondent presented no witness testimony or other evidence regarding any of the meetings it
is alleged to have held with employees or what may have occurred during these meetings.
Early February Meeting
Sometime during the week after Hernandez was discharged, Diaz and the mediator held
a meeting with employees during the shift change. Diaz told employees that they had to sign a
paper stating that they did not want the Union, and that this paper would be brought to the labor
department.26 The employees were shown a paper, which was written in Spanish, but it appears
from the record that no employee who was present signed it.27
February 10
On the evening of February 10, night shift employees were called to meet with Pedro
and Joel Reyes, Diaz, the mediator and a driver named Marlin Sanchez, who is known by the
nickname “Cacahuete” (Peanut). 28 Sanchez told employees that he could not sell tortillas, and
his truck was full. Reyes added that since the company could not sell its tortillas, they would
have to reduce the work hours of employees.29 Reyes then told employees that if they decided

24 According to Hernandez, Mendoza stated that he contacted the attorney who said that he
was going to have a meeting with the people from the factory, and he would call Mendoza back.
Mendoza offered no testimony on this issue.
25 At the time of his direct testimony, Cordova was a current employee of Respondent. He was
discharged at some point in time during the hiatus between his direct and cross-examination. Olguin was
an employee of Respondent at the time of his testimony, but Chavez was not, having been discharged on
October 13.
26 According to Cordova, Diaz stated that employees would also have to sign a “release” as
protection for the owners so that the employees could not sue them.
27 Olguin testified to a meeting held with night shift employees during this general time frame, but he
appears to be conflating what was discussed there with the January 30 meeting; in particular, he refers
the late arrival of the Union representatives, which occurred on only that one occasion. I do not rely,
therefore, on his testimony on what may have occurred during any meeting held with employees during
the first week of February.
28 Sanchez is not alleged to be a supervisor or agent of Respondent.
29 At some point in time after Respondent withdrew its recognition from the Union, the Union
distributed two leaflets to Respondent’s customers. The first is a letter from El-Haj advising that the Union
is embroiled in a dispute with the company, that charges had been filed with the Board and the Union
would be commencing “a massive campaign to truthfully advise the public of this dispute. This campaign
will include both picketing and leafleting at your establishment.” The second leaflets asks the recipient:
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to continue to support the Union, he would have to close the factory, and that he would reopen
under a different name. Diaz stated that if employees were to sign a paper stating that they do
not want the Union, things would return to normal and that the company would take charge of
getting rid of the Union. Diaz told the employees that on the following Monday there would a
vote among employees about whether they wanted the Union.
February 13
The following Monday, February 13, another meeting was held for employees. The
meeting began at about 3:00 p.m., and day shift employees were joined by the night shift
employees upon their arrival. Pedro Reyes and Soto spoke with employees. Diaz and the
mediator arrived later. According to Cordova, Soto told employees that the company had hired
him and he was there because of the Juan Hernandez case. He stated that the firing of
Hernandez had been an injustice, that Respondent had no reason to fire someone who was
their representative, and if anyone knew Hernandez’ phone number they should give it to him.
Soto further stated that if employees were to leave the Union, Hernandez would be given his job
back. Cordova additionally testified that Soto stated that, “whether we wanted the Union or not
he had to come here to Federal Plaza to ask for a paper so that we could all sign it and bring it
back so that we would not have the union.” When Diaz arrived, he stated that he had the paper
for a vote. Cordova testified that he told Soto that there would not be any vote because Reyes
had already signed an agreement with the Union. According to Cordova, Soto then agreed that
there would not be any vote and stated that he was there to work on the Hernandez case.
Employees Sign a Document Repudiating the Union
Another meeting was held on February 20, at about 8:00 a.m. with the morning shift.
Two drivers, Sanchez and Jose Luis Lopez came into the facility and asked to speak with the
employees. Reyes remained in his office. At this time, the facility machines, which had been
running, were turned off. According to Cordova’s unrebutted testimony, the drivers turned off the
machines prior to addressing employees.
Sanchez told employees that this didn’t have anything to do with the bosses, but that he
wanted employees to sign a paper so that he could continue to sell tortillas. A paper was
distributed to employees. It is written in Spanish and was translated into the record, as follows:
“We employees of La Poblanita have decided to do a voting about Union 660. This is a voting,
it’s a free voting without the presence of the boss.” There are two columns: one is labeled “No
Union” and the other is “Si Union.” Employees signed the agreement at this time.
Another, separate, meeting was held with employees from the night shift in Reyes’
office, where he presented the petition to employees. Olguin, among others, signed on this
occasion.30
_________________________
“Please do not buy tortillas made by: Tortilla la Poblanita,” asserting among other things that the
employees recently joined a union, that the owner is now threatening employees with deportation and
discharge, that the owner of the company is exploiting “his own people,” and that the Union has filed
charges with the NLRB. The flyer further requests recipients to call Reyes and advise him of their support
for the employees.
30 Olguin offered an account of this meeting which was similar in many respects to other witness
testimony regarding a meeting previously held with night shift employees on February 10, at which
Sanchez spoke and where the Reyes brothers and Diaz were present. Again, after carefully considering
the record as a whole, I conclude that Olguin’s account of events relates to this prior meeting, and
possibly to another earlier meeting, held on January 30, where employees were told that if they
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IV. Analysis and Conclusions
Respondent’s Recognition of and Subsequent Withdrawal of Recognition from the Union
The Union’s Majority Status
The complaint alleges that, on or about January 9, the Union was designated as the
exclusive collective-bargaining representative of Respondent’s employees in an appropriate
unit. Respondent denies this. Respondent contends that the record fails to support a finding that
a majority of the defined unit designated the Union as their exclusive collective-bargaining
representative. In support of this argument, Respondent maintains that Respondent’s
employees did not understand the significance of the authorization cards they were directed to
sign by Union representatives and fellow employees and that, therefore, there is insufficient
evidence to establish that a majority of respondent’s employees knowingly and intentionally
submitted authorization cards.
The record establishes at, as of January 9, the date of the Union’s demand for
recognition, Respondent employed 19 employees in various factory job classifications sought by
the Union.
The Board will accept the testimony of a signatory or a witness to the signing of a union
card as a valid method of authentication. See e.g. US.A. Polymer Corp., 328 NLRB 1242, 1269
(1999). Moreover, the Board has long held that it “will . . . accept as authentic any authorization
cards which were returned to the person soliciting them even though the solicitor did not witness
the actual act of signing.” Evergreen America Corp., 348 NLRB No. 12, slip op. at 2
(2006)(quoting McEwen Mfg. Co., 172 NLRB 990, 992 (1968)). I find that, relying upon these
methods, the General Counsel has successfully authenticated 15 of the 22 union authorization
cards collected by the Union prior to January 9.31
_________________________
renounced the Union they would receive enhancements in their salaries and benefits, as described
above. While I do not specifically rely upon Olguin’s testimony regarding what was said to employees on
February 20, I do find, however, that his testimony is generally corroborative of other witness testimony
regarding what occurred during meetings Respondent held with employees. I conclude, however, that
most events as described by him did not occur on the date or dates he attributed to them, but rather on a
prior occasion or occasions. Even if I were to fully credit Olguin’s testimony regarding what occurred on
February 20, any findings made pursuant to his testimony would be largely duplicative of other findings
made herein.
31 The card of Arturo Aquino was authenticated by Chavez, who witnessed the signing at the
meeting held by Mendoza on December 29; the card of Felimon Aquino was authenticated by Cordova,
who witnessed the signing; Domingo Benitez’s card was authenticated by witnesses Hernandez and
Cordova; Chavez identified his own card and his card was additionally authenticated by Mendoza;
Cordova identified his own card, and his testimony was corroborated by Hernandez; Hernandez
witnessed Antonio Flores sign his card. Cordova witnessed Juan Fuentes sign his card; Hernandez
identified his own card, and Cordova witnessed the signing as well; the cards of Miguel Angel Linares,
Paulino Martinez and Gregorio Morales were authenticated by Cordova, who witnessed the signing;
Olguin identified his own card and it was additionally authenticated by Mendoza, the card solicitor and by
Chavez as a witness; the card of Hipolito Soleto was authenticated by Mendoza, the card solicitor and by
Chavez as a witness; the card of Celso Vivar was authenticated by Mendoza, the card solicitor and by
Chavez and Olguin, as witnesses; Antonio Zuniga’s card was authenticated by Chavez, as witness. With
respect to the other cards in the exhibit herein, these include a duplicate card and cards from employees
not part of the defined bargaining unit.
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With respect to the issue of whether the employees in question knowingly and
intentionally submitted authorization cards, the Board has long held that “[w]hen a card signer is
illiterate, or has no ability in English, it must be established that the card signer knew what he
was signing and in fact authorized the Union to represent him.” Brancato Iron Works, Inc., 179
NLRB 75, 81-83 (1968). There must be evidence that the card was translated or explained so
that the card signer “understood the meaning and purpose of an authorization card” otherwise it
“cannot be counted toward establishing the Union’s majority support.” Food Cart Market, 286
NLRB 1016, 1017 (1987). See also M&M Backhoe Services, 345 NLRB No. 29, slip op. at 5
(2005).
As an initial matter, I find it inherently plausible and probable that Respondent’s
employees discussed among themselves the import of the authorization cards at the time they
were signed. I further credit Hernandez’s testimony that Union organizer John Mendoza
explained the purpose of the cards given to him and to Benitez; that he understood the card was
for the purpose of authorizing the Union to represent employees in order to negotiate with the
company and that he returned to work and explained the purpose of the cards to his coworkers.
Cordova, who was working that day, understands English sufficiently to read and comprehend
the authorization card and stated that he understood that by signing it he was giving the Union
the power to represent the workers in terms of rate of pay and other working conditions. I credit
Cordova’s testimony that he explained his understanding of the meaning of the card to his
coworkers. Employees on the morning shift met with Mendoza at the end of their shift on
December 29. I credit Mendoza’s testimony that while meeting with employees he explained to
them that the cards would enable the Union to legally represent them and bargain for improved
terms and conditions of employment, and note that his testimony in this regard was
corroborated by the fact that Hernandez was authorized by his coworkers to present the signed
cards to Mendoza at this time. Mendoza met with employees of the night shift that evening and
explained the purpose of the cards, as he had previously that day. His testimony in this regard
was corroborated by night shift employees Chavez and Olguin. Chavez recalled that Mendoza
stated that by signing the cards it would mean that they were accepting the Union to represent
them with the company; similarly Olguin testified that Mendoza advised employees that the
cards authorized the Union to speak on their behalf to the boss.
Based upon the foregoing evidence, I find that Counsel for the General Counsel has met
its burden of establishing that the card signers understood the purpose of the Union’s
authorization cards, notwithstanding any inability to read or speak English. I further conclude
that, as of January 9, the Union represented a majority of employees in the bargaining unit set
forth in the recognition agreement.32

32 In its answer, Respondent does not specifically deny that the unit defined in the recognition
agreement is an appropriate unit but, rather, “respectfully refers the Court to the applicable law for its
content and meaning.” The defined unit describes those employees involved in Respondent’s production
process. As the record establishes, this includes employees who mix product, operate the machinery,
pack the tortillas and prepare them for shipping, and excludes the drivers and other enumerated
classifications. In cases where there is a voluntary recognition of a Union, the assessment of whether a
bargaining unit is appropriate is “limited to a determination that the agreed-upon unit is not inconsistent
with the Act or contrary to Board policy.” Alpha Associates, 344 NLRB No. 95, slip op at 3 (2005). In the
instant case, a unit of production employees, which does not include drivers or helpers, is neither
inconsistent with the Act nor contrary to Board policy. See E.H. Koester Bakery Co., 136 NLRB 1006
(1962) (inclusion of drivers in a more comprehensive unit would be based upon community of interest
standards.) I find therefore, that the unit defined in the recognition agreement is an appropriate unit for
purposed of collective bargaining.
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Respondent’s Recognition of the Union
The complaint alleges that on or about January 9, Respondent recognized the Union as
the exclusive collective bargaining agreement of its employees in the described unit, a
contention which Respondent denies.
It is undisputed that, on January 9, El-Haj and Mendoza came to Respondent’s facility
and were accompanied by unit employees who were assigned to work the morning shift on that
day; that employees remained outside rather than reporting to work as was their custom; that
the Union representatives had a discussion with Reyes in the presence of these employees;
that the Union presented Reyes with the document described above; that employees then
began their work duties and that Reyes, together with the Union representatives, proceeded to
Reyes’ office where he signed the document in question. Respondent contends that this
sequence of events does not evince a lawful recognition of the Union as the collective-
bargaining representative of its employees because Reyes did not understand what the
document was or intend to recognize the Union by signing the document in question. Thus, it is
argued, there was no “meeting of the minds” in regard to recognition and, therefore, no
enforceable recognition agreement.
In support of this argument, Respondent points to the fact that the agreement, a complex
legal document which, as El-Haj testified, he would be unable to draft himself, was never
translated for Reyes. Respondent additionally argues that Reyes “was pressured, felt
threatened, and just wanted the employees to return to work.” Respondent also alleges that
Mendoza got close to Reyes and raised his voice.
It has long been acknowledged that, under Section 9(a) of the Act, a valid bargaining
relationship may arise not only as a result of a Board-certified election, but also from an
employer’s voluntary recognition of a majority union. American Opera Musical Theatre Co., 332
NLRB 1627 (2001); Royal Coach Lines, Inc., 282 NLRB 1037 (1987) enf. denied on other
grounds, 838 F.2d 47 (2d Cir. 1988). See also Terracon, Inc., 339 NLRB 221, 223 (2003), enfd.
sub nom. International Union of Operating Engineers Local 150 v. NLRB, 361 F.3d 395 (7th Cir.
2004)(a majority union may become the recognized bargaining representative of a unit of
employees when an employer either explicitly or implicitly agrees to recognize it).
A signed recognition agreement evinces an employer’s voluntary recognition of a union.
See Moisi & Son Trucking Inc., 197 NLRB 198, 200 (1972) (letter to union stating, in relevant
part, “. . .We also hereby agree to recognize [the union] as exclusive Bargaining Agent for our
drivers” found to establish voluntary recognition); Royal Coach Lines, supra.
As noted above, Respondent argues that Reyes never recognized the Union because he
did not understand the import of what he was signing. This defense fails as both a matter of fact
and a question of law.
As an initial matter, I did not find Reyes to be a credible witness. When questioned by
Counsel for the General Counsel he was uncooperative, evasive and vague. He recanted
testimony on various details, and offered false and highly improbable testimony on others. 33

33 For example, Reyes initially admitted that prior to assuming ownership he was the “manager” of
the facility, and then asserted that he was merely a helper, limited to performing menial tasks. He denied
knowing whether any employees had been hired during the period from 1994 to 2005. Given the fact that
Respondent’s entire payroll consists of approximately 23 individuals, this is highly improbable. He claimed
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Even when questioned by his own attorney, his account of events was sparse and at times
clearly appeared to have been extemporized. Having had the occasion to observe him in
person, I do not believe that he would have felt physically threatened by the Union
representatives and do not credit his vague and non-specific testimony regarding any sort of
physical coercion, in any event. Similarly, I do not credit Reyes’ testimony regarding his inability
to comprehend English. I observed that during the course of the hearing and in particular during
his testimony, Reyes appeared to understand what was occurring without benefit of translation.
Moreover, I credit El-Haj and Mendoza’s generally corroborative testimony that they offered to
translate the recognition agreement to Reyes, and that he indicated that would not be required.
Further, I find it inherently implausible that Mendoza would not have translated the agreement to
Reyes if it had been apparent that he could not understand it. I additionally note that there is
unrebutted evidence that Reyes spoke in English with Union representatives on the date of the
recognition, on a subsequent occasion when the Union visited the facility and when summoning
the police on the day after Hernandez’s discharge. Further, there is no evidence that the Union
misrepresented the nature of the document to Reyes.34
Moreover, and significantly, Reyes admitted that he signed the agreement to induce his
employees to work. This indicates that he understood the purpose of the recognition agreement,
and, further, evinces an acknowledgement that the Union had the majority support of his
employees. The agreement in question is relatively lengthy and specific, and I do not believe
that Reyes, as the owner and proprietor of a successful business, would cavalierly sign such a
document if he did not intend to do so. I note that the testimony is unrebutted that Reyes asked
his employees whether they desired representation and, after an initial hesitation, they
confirmed to him that they did. Thus, based upon the foregoing, I conclude that Reyes knew that
a majority of his employees supported the Union further understood the significance of the
document he was signing on that date. 35
Even if that were not to be the case, however, it is well settled that Respondent’s
proffered defense fails as a matter of law. As has been noted, such an argument amount to
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that, prior to retaining the services of a payroll service, he maintained no records of his cash payroll and
then, apparently realizing the improbability of such testimony, suddenly recalled that he had an
accountant in New Jersey who, among other things, filed income tax returns for his employees. Reyes
further initially testified that he was present at the facility at the time Hernandez was discharged, but in
later testimony was compelled to admit that he was not.
34 Reyes’ testimony that he took the document and sought out a lawyer to tell him what it said was
clearly extemporized and, under the circumstances herein, incredible. Clearly, Reyes could have sought
that advice, but under economic pressure, decided not to do so.
35 Although an employer may request to see a union’s evidence of majority status at the time a
demand for recognition is made, a union is not required to show the employer any evidence of majority
status unless the employer makes such a request. As the Board stated in Windsor Place Corp., 276
NLRB 445 fn. 1 (1985), citing Ladies Garment Workers v. NLRB, 366 U.S. 731, 739-740 (1969):“We
disavow the judge’s finding that a union must demonstrate its majority status before an employer can
recognize it. Rather, an employer can recognize a union without such a demonstration but risks 8(a)(2)
liability for recognizing a union supported by a minority of unit employees.” In Moisi & Son Trucking, supra
at 198 fn. 2, the employer chose to extend recognition solely upon the union’s claim of majority support,
without an independent card check. The employer subsequently challenged the nature of its
understanding with the union, but the Board concluded that the employer had failed to introduce sufficient
evidence challenging the union’s majority at the time of the agreement. The Board held that “[o]nce an
employer has extended voluntary recognition to a union, . . .he will not be heard subsequently to
challenge its majority status in an 8(a)(5) proceeding unless he introduces affirmative evidence proving a
lack of majority at the time of the recognition agreement.” Id.
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nothing more than an “’ignorance of the law’ excuse; that is to say, it presents no legally
cognizable excuse at all.” MPF Fire Protection, 318 NLRB 840, 842 (1995). In this regard,
Respondent’s reliance upon NLRB v. Clark-Sprague, Inc., 440 F.2d 1099 (1971) is misplaced.
In that case, the court agreed with the trial examiner that, when confronted with authorization
cards signed by employees, the company president’s statement that he would have to talk with
the plant manager about the issue indicated that there was no express recognition at that time.
The court relied upon the company president’s testimony, credited by the trial examiner, that the
union had left it “entirely up to [the company] to decide if it would be all right with us if they
represented [the employees]. . We left them on the best of terms and with the idea we would let
them know if we decided pro or con.” As the court concluded, this did not demonstrate that any
“meeting of the minds” had been reached on the issue of recognition as to this particular unit of
employees. The facts of the instant case, as described above, present no such ambiguity.
Accordingly, based upon the foregoing, I conclude that on January 9, Respondent
voluntarily recognized the Union as the exclusive collective-bargaining representative of the
employees in the designated unit.
It is well settled that a union that has been voluntarily recognized by an employer is
entitled to an irrebutable presumption of majority status which remains in force for a “reasonable
period of time” during which the employer is under an obligation to meet and bargain with the
union. Royal Coach Lines, supra at 1038; American Opera Musical Theatre Co., supra at 1631;
Keller Plastics Eastern, 157 NLRB 583 (1966).36
In the instant case, Respondent recognized the Union on January 9 but never fulfilled its
obligation to bargain with the Union.37 The evidence establishes that the Union sought to
commence negotiations within days after the recognition agreement was signed, but Reyes
refused to agree to dates.38 The Union reiterated its demand for bargaining by letter and by
returning to the facility accompanied by Hernandez and other employees, only to be rebuffed.
Thus, as General Counsel has argued, the “reasonable period of time” to bargain had not
begun, much less elapsed. By failing and refusing to meet and bargain with the Union as the
exclusive collective-bargaining representative of its employees, I find that Respondent has
violated Section 8(a)(1) and (5) of the Act.
The Alleged Violations of Section 8(a)(1)
As noted above, the complaint alleges numerous violations of Section 8(a)(1) of the Act.
Respondent’s answer denied the allegations; however Respondent presented no rebuttal

36 Upon expiration of a reasonable period of time, a union continues to enjoy a rebuttable
presumption of majority status, whereby an employer may withdraw recognition from a union only if it
possesses evidence that the union has in fact lost its majority support in an atmosphere untainted by
unfair labor practices. See Alpha Associates, supra slip op. at 4. Respondent has raised no such
argument herein, and the underlying circumstances would not support it, in any event.
37 I do not credit Reyes’ obviously false testimony that the Union never returned to the facility but if
they did, he gave them his attorney’s business card.
38 It was at this point, after the recognition had been extended, that Respondent demanded to see
proof of the Union’s majority, by viewing the cards. The Union offered to establish its majority support
through a neutral third-party card check or by showing the cards to Reyes on the condition that he sign an
acknowledgment that he had seen them. Both these options were rejected, and based upon the totality of
the circumstances as described above, I conclude that Reyes did not, in fact, have any reasonable basis
to question the majority status of the Union.
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evidence to the account of events presented by the General Counsel’s witnesses. Moreover,
Respondent fails to address these allegations of the complaint in its brief.
In general, I found General Counsel’s witnesses to be credible. Clearly, there are certain
discrepancies in their testimony, in particular regarding what was discussed at various meetings
held with employees. Given the number of meetings held, coupled with the fact that there were
several agents of Respondent, and others, present and speaking at these meetings, I find it
entirely probable that witnesses testifying truthfully, and to the best of their recollection, would
not have an exact or verbatim recollection of events. Moreover, it is likely in my view that the
recollection of various witnesses might differ in certain respects as to what they recall occurring
on any particular occasion. These variances in witness testimony, rather than undermining
credibility, support a finding that they were recounting, as truthfully as possible, what they
observed and recalled from the various occasions in which the Union was discussed.
I further note that at the time of his testimony for the General Counsel, Cordova was
employed by the Respondent, and Olguin was a current employee as well. I find that, to the
extent these witnesses appeared to accurately recall events that transpired, their testimony
tends to be reliable because, on the whole, they were testifying adversely to their interests.
Advocate South Suburban Hospital, 346 NLRB No. 23 fn. 1 (2006) (quoting Flexsteel Industries,
316 NLRB 545 (1995), enfd. mem. 83 F.3d 419 (5th Cir. 1996).39 My conclusions in this regard
are buttressed by an observation of the witnesses’ demeanor. With respect to Cordova, I note
that Counsel for the General Counsel found herself obliged to refresh his recollection on a
number of occasions. Once that was accomplished, however, I found his testimony to be
detailed and complete and he presented his testimony in a forthright and direct manner. 40
Similarly, the other witnesses presented by Counsel for the General Counsel answered
questions on direct and cross-examination in a forthright manner, without evasion.
Moreover, Respondent failed to offer any evidence to rebut the testimony regarding the
numerous allegations of Section 8(a)(1). It is well-settled that when a party fails to call a witness
who may be reasonably assumed to favor that party’s position regarding an issue in dispute, an
adverse inference may be drawn regarding those factual matters about which the witness is
likely to have knowledge. International Automated Machines, 285 NLRB 1122 (1987), enfd. 861
F.2d 720 (6th Cir, 1988). A similar inference may be drawn where a witness is called by a party
who testifies to some matters but not others. The Salvation Army, 345 NLRB No. 48, fn. 7
(2005). In this case neither Reyes nor Diaz offered any testimony regarding any alleged
violation of Section 8(a)(1) in rebuttal to that offered by the General Counsel’s witnesses.

39 As noted above, I do not find Olguin’s recollection to be entirely reliable; however, I do believe that
the events he described took place, but not quite in the order that he placed them.
40 At the hearing, Respondent sought to impeach Cordova’s credibility by introducing evidence that
he presented fraudulent work authorization documentation to Respondent. General Counsel objected on
the basis that such questions were improper under the Federal Rules of Evidence, Rule 608(b). After the
parties briefed the issue, and presented oral argument in support of their respective positions, I ruled that
Respondent could not question Cordova regarding these matters, but announced that I would treat the
record as if Cordova would have invoked his right against self-incrimination to such questions. I further
advised Counsel for Respondent that he could, therefore, argue that I draw any appropriate adverse
inferences from Cordova’s anticipated refusal to answer such questions. See Matter of Maurice, 73 F.3d
124, 126 (7th Cir. 1995). In its brief, Respondent has raised no such argument and I conclude that
Respondent has abandoned this issue. Even if this were not to be the case, however, in considering the
record as a whole, including my observation of his demeanor and other attendant circumstances,
described above, I find Cordova was a truthful witness herein, and this conclusion would not be altered if
it were to come to light that he had provided fraudulent work authorization documentation to Respondent.
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Respondent failed to call, or to explain its failure to produce, Joel Reyes, Soto or the mediator. I
infer, therefore, that if these witnesses had testified truthfully to the matters raised by the
General Counsel’s witnesses, such testimony would not have been favorable to the
Respondent.
Agency Status of Wilson Soto and the “Mediator”
The General Counsel alleges that both Soto and the mediator acted as agents of
Respondent within the meaning of Section 2(13) of the Act. In its answer, Respondent denied
agency status, but presented no evidence as to why that would not be the case. Further,
Respondent has presented no evidence to rebut that Soto and the mediator were present at
employee meetings or to refute what they are alleged to have told employees. Respondent fails
to address the issue of these individuals’ agency status in its brief.
Under the Act, an employer is responsible for the actions and statements of persons
acting as its agents. In making this determination, the Board applies common law agency
principles. If an individual acts with the apparent authority of the employer with respect to
alleged unlawful conduct, the employer is responsible for such conduct. “Apparent authority
results from a manifestation by the principal to a third party that creates a reasonable basis for
the latter to believe that the principal has authorized the alleged agent to perform the acts in
question.” D&F Industries, 339 NLRB 618, 619 (2003)(quoting Cooper Industries, 328 NLRB
145 (1999)). Section 2(13) of the Act provides that in “determining whether any person is acting
as an ‘agent’ of another person so as to make such other person responsible for his acts, the
question of whether the specific acts performed were actually authorized or subsequently
ratified shall not be controlling.” The position and the duties of the alleged agent are relevant in
determining agency status and the Board also will also consider whether the alleged agent’s
statements or conduct were consistent with those of the employer. D&F Industries, supra.
In agreement with the General Counsel I find that, in various meetings with employees, both
Soto and the mediator acted as agents of Respondent. In this regard, I note that Soto told
employees, with Reyes present, that he was hired by Respondent to work on the Juan
Hernandez case. Virtually all of the allegedly unlawful statements made by Soto and the
mediator (with the exception of any discussions Soto may have had with Hernandez after his
discharge) were made at the Respondent’s facility, in the presence of admitted agents and
supervisors of Respondent, who not only failed to disavow or contradict the statements, but
frequently ratified them. While the nature of the business relationship between Respondent and
the mediator is unknown, his statements were made in furtherance of Respondent’s anti-union
campaign. Thus, I find that his status as an agent for purposes of Section 8(a)(1) liability is
established. Accordingly, I conclude that both Soto and the mediator were agents of
Respondent during all relevant times herein.
The Alleged Violations of Section 8(a)(1)
January 27 – Demand To See Work Authorization Documents Leading to a Threat of Discharge
As noted above, when Union representatives, accompanied by Hernandez, approached
Reyes seeking a commitment to dates for collective bargaining, he immediately demanded to
see “papers” (which under the circumstances I construe to be a demand for work authorization
documents) from Hernandez and then from employees who were gathered outside his office.
This demand was then followed by a threat of discharge if employees failed to comply.
Irregardless of the legal rights and obligations Respondent may have to require that its
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employees produce work authorization documentation in general,41 its demands on this
occasion were issued in immediate response to the Union’s demand for collective bargaining
and were integral to a general threat of discharge to employees, to discourage them from
supporting the Union, in violation of the Act.42
January 30 –Promises of Benefits, Implied Threats of Job Loss and Solicitation of Employee
Signatures Evincing Rejection of the Union
With employees gathered for a meeting during the shift change, Diaz and the mediator,
in the presence of the Reyes brothers, promised employees improvements in their salaries and
benefits, in exchange for their abandonment of the Union. Such conduct constitutes an unlawful
promise of benefits. ELC Electric, Inc., 344 NLRB No. 144 (2005); Country Window Cleaning
Co., 328 NLRB 190 (1999). At the same time, employees were told that the Union would, after
some time had passed, replace current employees with their own people. I find that by these
statements, Respondent impliedly and unlawfully threatened its employees with the prospect of
job loss if the Union were to continue to represent them. North Hills Office Services, supra, slip
op. at 2. At this meeting, Diaz began his solicitation of employee signatures on a petition to
withdraw their support for the Union. Such a request is also violative of Section 8(a)(1) of the
Act. County Window, supra at 195 (employer’s request that employees sign a document
withdrawing previously-indicated interest in joining union unlawful).
January 31 – Attempt to Poll Employees Regarding their Continuing Support for the Union
As discussed above, on January 31, after extending voluntary recognition to the Union,
Diaz and the mediator distributed a ballot by which employees were to “vote” as to whether they
wanted Union representation. As has been noted, “an employer may not initiate a poll of
employee sentiments in an attempt to create –as opposed to confirm—a good faith doubt of the
union’s majority support among employees.” Public Service Co. of Oklahoma (PSO), 334 NLRB
487, 505 (2001). Respondent’s attempt to poll employee sentiment was also lacking the
fundamental safeguards set forth in Struksnes Construction Co., Inc., 165 NLRB 1062, 1063
(1967).43 See also Lou’s Produce, Inc., 308 NLRB 1194, 1195 fn. 6 (1992), enfd. Lou’s

41 In fact, the record indicates that both prior and subsequent to the Union’s organizing campaign
Respondent took only a sporadic interest in requiring work authorization documentation from its
employees. The record establishes that when Diaz came on board, he found that Respondent failed to
have required documentation for employees. By Diaz’s own admission, when he asked employees to
provide the required documentation, a number of employees failed to comply. Nevertheless, such
employees continued in Respondent’s employ at least though the time Diaz testified herein.
42 The Board has held that, under similar circumstances, a demand for work authorization
documentation is a separate and distinct violation of Section 8(a)(1). See e.g. North Hills Office Services,
Inc., 344 NLRB No. 134, slip op. at 1-2 (2005); Regal Recycling, Inc., 329 NLRB 355, 366 (1999); Victor’s
Café 52, Inc., 321 NLRB 504, 514-515 (1996). In this case, however, the complaint does not specifically
allege the demand for work authorization documents as an independent violation of Section 8(a)(1). It
appears from the arguments framed in Counsels for the General Counsel’s brief that they have construed
Reyes’ hasty demand for work authorization documents to be part of an overall pattern of coercive
conduct culminating in an unlawful threat of discharge, and I so find.
43In Struksnes, supra at 163, the Board held, “[a]bsent unusual circumstances, the polling of
employees by an employer will be violative of Section 8(a)(1) of the Act unless the following safeguards
are observed: (1) the purpose of the poll is to determine the truth of a union’s claim of majority; (2) this
purpose is communicated to employees, (3) assurances against reprisal are given, (4) the employees are
polled by secret ballot and (5) the employer has not engaged in unfair labor practices or otherwise
created a coercive atmosphere.” The burden of establishing that such safeguards are complied with is on
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Produce, Inc. v. NLRB, 21 F.3d 1114 (9th Cir. 1994). Accordingly, I find that Respondent’s post-
recognition attempt to poll employees regarding their continued Union support was coercive,
and under the circumstances herein, constituted an unlawful interrogation of employees
regarding their support for the Union, as alleged in the complaint. See Greenleaf Motor Express,
285 NLRB 844 fn. 3 (1987).44
Early February – Demand that Employees Sign a Renunciation of Union
The unrebutted evidence establishes that, shortly after Hernandez was fired, employees
were called to a meeting where Diaz again told employees that they had to sign a paper
rejecting the Union. Notwithstanding the fact that employees did not sign any such paper at this
time, such a demand violates Section 8(a)(1) of the Act. County Window, supra.
February 10 – Threats of Reduced Hours and Plant Closure
On February 10, driver Sanchez (not an alleged agent of Respondent) told employees
that as a result of the Union campaign he had not been able to deliver tortillas. Reyes seized
upon this opportunity to explain to employees that, as a consequence, he would have to reduce
work hours. He then told employees that he would close the business altogether and reopen
under another name, and that this could be avoided if employees would sign a paper rejecting
the Union. Such comments violate Section 8(a)(1) of the Act. See E.L.C. Electric, Inc., supra;
Regal Recycling, supra.
February 13 – Meeting with Wilson Soto
At this meeting, Soto told employees that Hernandez had been unjustly discharged. As
Counsel for the General Counsel notes, the Board has held that informing employees that an
employee’s discharge was prompted by protected activity has been found to be a violation of
Section 8(a)(1). While Soto did not specifically state to employees that Hernandez had been
fired for his Union activity, the unmistakable implication of his statement, placed in the context of
ongoing anti-Union meetings, was that Hernandez’s protected conduct was the cause of his
discharge. See e.g. Sands Hotel & Casino, 306 NLRB 172, 184, enfd. 993 F.2d 913 (D.C. Cir.
1993)(employer’s statement that implied that employee’s discharge was due to protected
conduct was violative of Section 8(a)(1) of the Act.) This is particularly true given the context of
Soto’s other comments, in particular, that Hernandez would be brought back to work if
employees renounced their support for the Union, a statement which is, in and of itself, another
violation of the Act. See Del Rey Tortilleria, Inc., 272 NLRB 1106, 1114 (1984), enfd. NLRB v.
Del Rey Tortilleria, Inc., 787 F.2d 1118 (7th Cir. 1986), At this meeting, Soto yet again solicited
employees to sign a paper renouncing the Union, in violation of Section 8(a)(1) of the Act.
County Window, supra.
February 20 – Solicitation of Employee Petition Rejecting Union
On February 20, two meetings were held with employees where an anti-Union petition
was circulated. Although the first meeting was presided over solely by employee drivers, it is
clear from the context that this meeting was only condoned, but also ratified by Respondent. As
an initial matter, the morning meeting was held openly in the facility, during production hours,
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the employer and a failure to comply with just one of these requirements renders the poll unlawful. See
Lackawanna Electrical Construction, 337 NLRB 458, 465 (2002)(and cases cited therein).
44 Diaz’s threat to discharge Hernandez for his failure to submit the poll is discussed below.
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and the machines were turned off for this purpose. Reyes was in the facility, where he could
easily observe what was occurring. As to the second meeting, the credited evidence shows that
employees were called to Reyes’ office directly, and presented with the petition. Under these
circumstances, there can be little doubt that the solicitation of employee signatures purporting to
renounce their support of the Union was coercive and violative of Section 8(a)(1) of the Act.
County Window, supra at 196 (and cases cited therein)(employees put “on the spot” when
asked to sign a prepared letter revoking their prior designation of the union.)
The Unlawful Discharge of Juan Hernandez
The complaint alleges that the Respondent’s discharge of Juan Hernandez violated
Section 8(a)(1) and (3) of the Act. Respondent contends that Hernandez was lawfully
discharged by Diaz after he refused to provide the necessary accounting documents and
treated Diaz with disrespect and disdain. In this regard, Respondent argues that all employees
were asked for social security cards and other identifying documentation, and had been asked
to provide similar documentation in the past. Respondent minimizes the import of Hernandez’
protected conduct, arguing that Hernandez was not alone in refusing to participate in
Respondent’s “straw vote” regarding the Union, and notes that the General Counsel’s own
witnesses established that there had been a total lack of employee participation. Respondent
additionally points to the fact that Hernandez was only one of four committee persons to sign
the recognition agreement, and no other employee was discharged. Respondent further
contends that there is no direct evidence of any improper motive for Hernandez’ termination,
and in this regard, relies upon Hernandez’ testimony that he did not know why he was
terminated.
The Supreme Court-approved analysis in 8(a)(1) and (3) cases turning on employer
motivation was established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). See NLRB v. Transportation Management Corp., 462
U.S. 393, 395 (1983) (approving Wright-Line analysis). In Wright Line the Board determined that
the General Counsel carries the burden of persuading by a preponderance of the evidence that
the employee's protected conduct was a motivating factor (in whole or in part) for the employer's
adverse employment action.45 Proof of such discriminatory motivation can be based on direct
evidence or can be inferred from circumstantial evidence based on the record as a whole.
Robert Orr/Sysco Food Services, 343 NLRB 141, 142 (2004), enfd. mem. 179 LRRM (BNA)
2954 (6th Cir. 2006); Embassy Vacation Resorts, 340 NLRB 846, 848 (2003). This includes
proof that the employer's reasons for the adverse personnel action were pretextual. Road
Trucking Co., 342 NLRB 895, 897-898 (2004), citing Laro Maintenance Corp. v. NLRB, 56 F.3d
224, 229 (D.C. Cir 1995) (“When the employer presents a legitimate basis for its actions which
the factfinder concludes is pretextual .... the factfinder may not only properly infer that there is
some other motive, but that the motive is one that the employer desires to conceal-an unlawful
motive ….”) (internal quotations omitted).46

45 In particular, the General Counsel must show that the employee had engaged in protected activity
and that the Respondent knew of this activity. The General Counsel must also establish that the activity
was a substantial or motivating reason for the employer’s action.
46 The Board has also found that when an evaluation of the General Counsel's initial case, or
Respondent's defense, includes a finding of pretext, this “defeats any attempt by the Respondent to show
that it would have discharged the discriminatee[s] absent their union activities.” Road Trucking Co., supra
at 898; La Gloria Oil and Gas Co., 337 NLRB 1120, 1124 (2002). “This is because where” the evidence
establishes that the reasons given for the Respondent's action are pretextual --that is, either false or not
in fact relied upon-the Respondent fails by definition to show that it would have taken the same action for
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Where the General Counsel makes an initial showing under Wright Line, the burden shifts
to the Respondent to establish that it would have taken the same action even in the absence of
union activities. Williamette Industries, 341 NLRB 560, 563 (2004); Wright Line, supra. To meet
its Wright Line burden, “[a]n employer cannot simply present a legitimate reason for its action
but must persuade by a preponderance of the evidence that the same action would have taken
place even in the absence of the protected activity.” W.F. Bolin Co., 311 NLRB 1118, 1119
(1993), petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir.
1996). See also Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
In the instant case, I find that the General Counsel has met its initial burden under
Wright Line of establishing that Hernandez was discharged for his protected conduct.47
As noted above, Hernandez was one of the employees initially approached by the
Union, and he distributed and collected authorization cards from his coworkers. Only a few days
after the recognition agreement was signed, Union representatives returned a copy to Reyes
bearing counter-signatures, including that of Hernandez. Further, Reyes was specifically told
that Hernandez had signed the recognition agreement as a member of the Union’s bargaining
committee.
Hernandez accompanied Union representatives El-Haj and Mendoza to the facility on
January 27, and acting as spokesman for the Union, advised Reyes that the Union was there to
speak with him. He was told to “go to hell.” He accompanied the Union representatives into
Reyes’ office. When the Union requested that Reyes provide them with dates for negotiations,
Reyes demanded that Hernandez produce papers, made a similar general announcement to
other employees in the vicinity and then announced to employees that those who did not
produce such papers would be dismissed.
Hernandez thereafter attended the meeting held for employees on January 30,
described above, where he spoke out and countered the company’s contentions (including
those found to unfair labor practices), openly stated that Reyes had refused to provide
employees with improved salaries and benefits. He was discharged on the following day.48
Thus, I find that the record supports a finding that Hernandez openly engaged in
protected conduct, and that Respondent had knowledge of such conduct. Moreover,
Respondent’s animus toward such conduct is amply demonstrated by totality of the evidence
herein including Respondent’s withdrawal of recognition from the Union and its refusal to
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those reasons, absent the protected conduct, and thus there is no need to perform the second part of the
Wright Line analysis.”' Road Trucking, supra, citing, Golden State Foods Corp., 340 NLRB 382, 385
(2003).
47 In their brief, Counsels for the General Counsel initially argue that, inasmuch as Hernandez was
discharged while refusing to engage in Respondent’s coercive poll, he was thus discharged while
engaging in protected conduct and an analysis pursuant to Wright Line is not necessary. In support of
this contention, General Counsel relies upon Felix Industries, 331 NLRB 144, 146 (2000), remanded on
other grounds, Felix Industries v. NLRB., 251 F.3d 1051 (D.C. Cir. 2001). That case, however, dealt with
a circumstance where it was undisputed that the alleged discriminatee engaged in certain conduct (found
to be protected conduct), which the respondent claimed justified the discharge. That circumstance does
not obtain here, where Respondent’s motivation for taking the allegedly unlawful action is disputed. In
such cases, the Board has made clear that a Wright Line analysis is appropriate. Id.
48 The timing of Hernandez’s discharge, occurring four days after he approached Reyes on behalf of
the Union, and only one day after he spoke at a meeting of employees, further supports a determination
of unlawful motive. Davey Roofing, Inc., 341 NLRB 222, 223 (2004).
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bargain as well as by substantial unrebutted evidence of numerous violations of Section 8(a)(1),
as set forth above. These unfair labor practices, occurring just prior to Hernandez’s discharge,
and in its immediate aftermath, provide direct evidence of Respondent’s unlawful motivation.
See e.g. Mid Mountain Foods, Inc., 332 NLRB 251, 251 fn. 2 (2002).
Inasmuch as the General Counsel has met its burden under Wright Line, the burden
shifts to the Respondent to persuade, by a preponderance of the evidence, that it would have
taken such action even in the absence of Hernandez’s protected conduct.
During the course of the trial, and in its brief, Respondent offered the following rationales
supporting its decision to discharge Hernandez. At the opening of the hearing, it was asserted
that when Hernandez was informed of the requirement that he provide work authorization
documentation, he “violently resisted” and “spoke strongly against it” and “was told in no
uncertain terms by Mr. Diaz that he would be terminated if he appeared the next day without the
documentation.” Then, “Mr. Hernandez appeared the next day without the documentation, and
aggressively and arrogantly so. He said he was going to work, and was told no he’s not. He was
fired or reminded that he had been fired contingent upon providing the documentation at that
time. And then he proceeded to get violent and aggressive toward Mr. Reyes . . .[creating] a
physical confrontation and [turning] off the manufacturing machines. . .” As noted above, Diaz
testified that Hernandez was fired on January 31 for making faces at him in a disrespectful way
when asked for his documentation, and Reyes testified that Hernandez was fired for not
providing documentation and not reinstated because of his poor behavior on the following day.49
I find that any or all of these accounts, to the extent they can be credited, are insufficient
to meet Respondent’s burden of proof to establish that it would have discharged Hernandez
irregardless of his protected conduct.
With regard to Respondent’s claim that Hernandez was fired for a failure to provide
documentation, as an initial matter, I find that the evidence establishes that Hernandez had, at
least partially, complied with Respondent’s request. It is undisputed that his personnel file
contained a photocopy of a social security card, as well as a signed W-4 form. In this regard, I
reject Diaz’s testimony that he had previously concluded that the social security card supplied
by Hernandez was fraudulent. Based upon the exhibit entered into evidence by the Respondent,
I find that Diaz would have been unable, upon nothing more than visual inspection, to determine
that this was not a validly issued document. Moreover, had Diaz legitimately doubted the card’s
authenticity, it is far more probable that he would have confronted Hernandez at the time he
submitted it. Respondent has provided no other justifiable basis for Diaz to reasonably
conclude that the documentation Hernandez had provided was fraudulent.
Moreover, I do not credit Diaz’s testimony that he was stationed at the exit to the facility
upon the conclusion of the work day on January 31 to demand work authorization
documentation from employees. Rather, I find that the “paper” Diaz was seeking was the ballot
which had been distributed to employees earlier that day. In so concluding, I note that Diaz
admitted that a box had been left by the door for employees to deposit their completed ballots
as they left work. Thus, I conclude that Diaz was stationed by the door to encourage employees
to complete and return the poll at this time. More generally, I further find that there would have
been no reason for Diaz to position himself at the door while employees were leaving at the end

49 To the extent Respondent has provided shifting explanations for the reason for Hernandez’s
discharge this, too, provides further evidence of unlawful motivation. U.S. Coachworks, Inc., 334 NLRB
955, 957 (2001).
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of their shift to request work authorization documentation which would obviously be more
conveniently produced during the course of the work day.
Further, there is no credible, probative evidence that Respondent has, before or since,
discharged any other employee for a failure to provide work authorization documentation. In
fact, as Diaz acknowledged, a number of employees who had failed to provide such
documentation were still employed as of the time of the hearing. Thus, even if I were to find that
Diaz had been requesting such documentation, I would be obliged to conclude that Hernandez
had been treated in a differing fashion from other employees. Such disparate treatment
constitutes evidence of an unlawful motive. Robert Orr/Sysco Food Service, supra. Moreover,
Respondent’s apparently pressing concern for compliance with IRCA50 during the period when
the Union was organizing does not excuse a discharge prompted by employee protected
conduct. See Regal Recycling, Inc., 329 NLRB 355 (1999)(Board found violation where
employer made sudden mass demand for work-eligibility documents not previously uniformly
required and then “laid off” employees for failing to comply); Concrete Form Walls, 346 NLRB
No. 80, slip op. at 5 (2006)(“an employer cannot use compliance with another statute [IRCA] as
a smoke screen for its true purpose of retaliating against employees for exercising their Section
7 rights”).
Respondent further relies upon Diaz’s testimony that Hernandez was “making faces” and
acting disrespectfully. Other than general comments about Hernandez’s “attitude,” Respondent
has offered no specific evidence regarding any insubordination in which Hernandez may have
engaged which would have justified his discharge on January 31. Diaz’s vague assertions, even
if credited, fail to establish misconduct sufficient to meet Respondent’s burden of proof in this
regard. Moreover, as General Counsel points out, the Board has long considered similar
comments, such as accusing an employee of having a "bad attitude," to be a veiled reference to
the employee's protected activities. See e.g., Climatrol, Inc., 329 NLRB 946 fn. 4 (1999);
Promenade Garage Corp., 314 NLRB 172, 179-180 (1994); Cook Family Foods, 311 NLRB
1299, 1319 (1993). When referenced in the context of explaining why an employee was
terminated, it constitutes "especially persuasive evidence" that the termination was unlawfully
motivated. Cook Family Foods, supra at 1319.
Respondent points to the fact that Hernandez was not alone either in refusing to
complete the ballot or in counter-signing the recognition agreement, and argues that a lack of
improper motive is proven by Respondent’s failure to take action against other employees. In
this regard, I note that Hernandez was a prominent Union supporter, and acted as its
spokesman during the encounter with Reyes on January 27. Moreover, it is well settled that an
employer need not discharge every union adherent in order to make its point. See Flite Chief,
Inc., 229 NLRB 968, 977 (1977); Great Atlantic & Pacific Tea Co., 210 NLRB 593 (1974).
Respondent further argues that Hernandez’s discharge is justified by virtue of his
conduct on the following day. This claim is not supported by the evidence. As an initial matter,
there is no record evidence to support Respondent’s contention that Hernandez initiated a
physical confrontation with Reyes, as has been contended. In fact, the only testimony in this
regard establishes to the contrary: that it was Reyes who assaulted Hernandez on this
occasion. Moreover, it is apparent from the evidence that Reyes ratified Diaz’s earlier
determination to discharge Hernandez, and communicated this to him, prior to Hernandez

50 Immigration Reform and Control Act of 1986, which, inter alia, makes it unlawful for employers
knowingly to hire undocumented workers or for employees to use fraudulent documents to establish
employment eligibility.
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taking any action with regard to either instructing his coworkers to turn off their machines, or
attempting to turn off the machines himself. Moreover, while Hernandez then did turn off the
machines, interfering briefly with production, he took such action only after he had been told he
was fired, had been instructed to leave the facility and was subject to an assault by Reyes.
Reyes essentially confirmed this sequence of events when he testified that, “[Hernandez] was
working on the machines and he had already been fired. He started to scream and to turn off
the machines.” I further note that immediately after offering such testimony, Reyes was asked
why Hernandez had been fired and replied, “[b]ecause of the documentation, he didn’t bring the
documentation.” Thus, even if I were to assume that Hernandez had engaged in subsequent
misconduct which would, under other circumstances, justify his discharge, in this instance
Respondent cannot rely upon such conduct to defend its prior unlawful decision to terminate his
employment.51
Thus, Respondent has failed to sustain its burden of establishing, by a preponderance of
the evidence, that it would have discharged Hernandez notwithstanding his Union activity. I
conclude, therefore, that Respondent has violated Section 8(a)(3) as alleged in the complaint.
I further find that on the date of his termination, Hernandez was threatened with
discharge for his failure to comply with Respondent’s unlawful poll, in violation of Section 8(a)(1)
the Act. Moreover, Hernandez’s unrebutted testimony establishes that after his discharge both
Reyes, and then Soto, told him that a condition of his return to work would include, among other
things, a withdrawal of the charges relating to his termination, in violation of Section 8(a)(1) of
the Act. Del Rey Tortilleria, supra at 1108. 52
V. Conclusions of Law
1. The Respondent is, and has been at all material times, an employer within the
meaning of Section 2(2), (6) and (7) of the Act
2. The Union is, and has been at all material times, a labor organization within the
meaning of Section 2(5) of the Act.
3. A Unit that is appropriate for bargaining under Section 9(b) of the Act is:
All full-time and part-time production employees employed at the Employer’s facility
located at 4 Heriot Place, Yonkers New York, including all production positions within the
above stated location; excluded all supervisors, managerial employees, watchmen and
guards as defined under the National Labor Relations Act.
4. Since January 9, 2006, the Union has been, and is, the exclusive collective-
bargaining representative of employees employed by the Respondent in the unit described
above for purposes of collective bargaining with respect to wages, hours and other conditions of
employment.

51 The separate issue of what effect Hernandez’s post-discharge conduct should have upon the
remedy herein is discussed below.
52 In so finding, I acknowledge that Hernandez’s testimony has certain inherent ambiguities.
Considering his testimony in context and as a whole, however, it appears from the record that
Respondent was insisting that Hernandez supply them with a release which included those matters
pertaining to his unlawful discharge.
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5. By engaging in the conduct described below the Respondent has been interfering
with, restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of
the Act in violation of Section 8(a)(1) of the Act:

(a) Threatening employees with discharge if they fail to provide work authorization
documentation because of their support for the Union;
(b) Promising employees improvements in wages and benefits if they renounce their
support for the Union;
(c) Impliedly threatening employees with job loss if the Union were to continue to
represent them;
(d) Soliciting employees to sign a petition withdrawing their support for the Union;
(e) Coercively polling or otherwise interrogating employees regarding their support for
the Union and threatening them with discharge if they fail to comply;
(f) Threatening employees with reduced work hours and plant closure as a result of
continued Union representation;
(g) Informing employees that Juan Hernandez’s discharge was a result of his Union
activities and conditioning his reinstatement on employee withdrawal of support for the Union;
(h) Conditioning Juan Hernandez’s reinstatement upon the withdrawal of unfair labor
practice charges filed against Respondent.
6. By discharging and refusing to reinstate Juan Hernandez, Respondent has been
discriminating in regard to the hire or tenure or terms and conditions of employment of its
employees, thereby discouraging membership in a labor organization, in violation of Section
8(a)(1) and (3) of the Act.
7. By withdrawing recognition from the Union as the collective-bargaining representative
of the employees in the unit described above, and failing and refusing to bargain collectively and
in good faith with the Union, the Respondent has violated Section 8(a)(1) and (5) of the Act.
8. Respondent has thereby engaged in unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that Respondent has engaged in certain unfair labor practices, I find it
necessary to order Respondent to cease and desist therefrom, and to take certain affirmative
action necessary to effectuate the policies of the Act.
I shall recommend that Respondent be ordered to recognize and bargain with the Union
as the exclusive collective-bargaining representative of employees in the appropriate unit of
employees set forth above concerning their terms and conditions of employment and, if an
agreement is reached, to embody such understanding in a signed agreement
An issue is raised concerning the appropriate remedial order for Hernandez’s unlawful
discharge. There are two sets of circumstances which call into question whether an order for the
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Board’s traditional remedy is an appropriate one. One involves whether Hernandez is, in fact,
authorized to work in this country and, if not, whether Respondent’s conduct has any impact on
a determination regarding the appropriate remedy for Hernandez’s unlawful discharge. The
issue of whether Hernandez is an undocumented worker was not litigated herein; neither was
the issue of what complicity, if any, Respondent may have had in flouting the provisions of IRCA
and how that might impact any remedy found to be proper.53 I find it appropriate, therefore, to
leave resolution of these issues to later compliance proceedings, if necessary. See Tuv Taam
Corp., 340 NLRB 756 (2003) (“Typically, an individual's immigration status is irrelevant to a
respondent's unfair labor practice liability under the Act. Questions concerning the employee's
status and its effect on the remedy are left for determination at the compliance stage of a case.”)
In addition, as discussed above, I have found that on the day following his discharge,
Hernandez returned to the facility where, during the course of events that transpired, he turned
off Respondent’s manufacturing machines.54 The question is whether this post-discharge
conduct constitutes serious misconduct that renders Hernandez unfit for future service with
Respondent, and tolls any backpay remedy. Roure Bertrand Dupont, Inc., 271 NLRB 433
(1984). As the Board has observed, “not every impropriety deprives the offending employee of
the protection of the Act. The Board looks at the nature of the misconduct and denies
reinstatement “in which the misconduct is violent or of such character as to render the
employees unfit for further service. “ C-Town, 281 NLRB 458 (1986), (quoting J.W.
Microelectronics Corp., 259 NLRB 327 (1981)). The Board also takes into account whether the
misconduct was an “emotional reaction” to the employer’s own unlawful discrimination against
the employee. Alto-Shaam, Inc. 307 NLRB 1466, 1467 (1992), enfd. 996 F.2d 1219 (7th Cir.
1993), cert. denied 114 S.Ct. 442 (1993) (and cases cited therein.) See also Dearborn Big Boy
No. 3, Inc., 328 NLRB 705 (1999); compare Hadco Aluminum & Metal Corp., 331 NLRB 518,
520 (2000).
In the instant case, Hernandez’s act of turning off the machines was immediately
preceded by a physical assault. Moreover, he had been unlawfully discharged on the previous
day, and Reyes confirmed this fact by angrily insisting that Hernandez leave the facility, while

53 In Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 149 (2002), the Supreme Court
denied the traditional remedy of backpay to an undocumented worker who had criminally violated IRCA
by presenting fraudulent documents to his employer. In that case, the employer hired the employee with
no knowledge of his undocumented status. In his dissent, Justice Breyer hypothetically observed that
were the Board forbidden to assess backpay against a knowing employer there would be a perverse
economic incentive running directly contrary to IRCA’s basic objective. The majority opinion did not
address this observation, and it does not appear that the issue of the knowing employer has been
specifically addressed by the Board since Hoffman was decided.
54 As noted above, after learning that he had, in fact, been discharged, Hernandez asked his
coworkers to turn off their machines, but they did not comply with his requests. Counsel for the General
Counsel argues that these requests are protected activity. I note that in Meyers Industries, 281 NLRB
882, 887 (1986)(Myers II), the Board noted that its definition of concerted activity included individual
activity where, “individual employees seek to initiate or to induce or to prepare for group action, as well as
individual employees bringing truly group complaints to the attention of management.” Further, the Board
has held that employee discussions regarding a work stoppage constitute protected activity, even in those
circumstances where the work stoppage itself arguably would be unprotected. See ATC of Nevada, 348
NLRB No. 43, slip op. at 1 fn. 3 (2006) (and cases cited therein.) Bearing these standards in mind I find
that Hernandez’s attempts to encourage his coworkers to engage in collective action to protest his
discharge were protected under the Act. However, even assuming such conduct is not protected, I
conclude, based upon the standards set forth below, that Hernandez’s entreaties to his coworkers would
not constitute misconduct sufficient to deny him the Board’s traditional remedy for his unlawful discharge.
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refusing to explain the reason for this determination. Further, any action taken by Hernandez
was immediately rectified by other employees, and it does not appear that production was lost
or that any damage was done to the product or the manufacturing process.
I further note that the record establishes that, on one other documented occasion,
employees turned off the manufacturing machines and held a meeting with their coworkers
during production hours, with no adverse result. Here, Respondent has offered no testimony
either to rebut this evidence or to demonstrate a non-discriminatory reason as to why it
condoned the shut down of operations on this occasion. See Marshall Durbin Poultry Co., 310
NLRB 68, 70 (1993); John Cuneo, Inc., 298 NLRB 856-857 (1990) where the Board has found
that in circumstances involving after-acquired knowledge of employee misconduct,
reinstatement and backpay are appropriate remedies unless employer can prove that such
misconduct would have resulted in a lawful discharge for which it would have discharged any
employee.55
Thus, while an attempt to interfere with production should not be minimized or
condoned, under all the circumstances herein, in light of the standards which have been applied
by the Board, I conclude that Hernandez’s conduct is not of “such a serious or flagrant nature to
warrant the withholding of the Board’s traditional remedy.” C-Town, supra.
Thus, the Respondent, having discriminatorily discharged Juan Hernandez, must offer
him reinstatement and make him whole for any loss of earnings and other benefits, computed
on a quarterly basis from the date of discharge to the date of his 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). In addition, Respondent
should be required to remove from its files any reference to the unlawful discharge and notify
Hernandez that this has been done and that the discharge will not be used against him in any
way.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended56
ORDER
The Respondent, Tortilleria La Poblanita, its officers, agents, successors, and assigns,
shall
1. Cease and desist from:
(a) Withdrawing recognition from the Union and failing and refusing to bargain
collectively and in good faith with the Union as the exclusive collective-bargaining representative
of employees in the following appropriate unit:

55 In particular, the Board has held that an employer must “establish that the discriminatee’s conduct
would have provided grounds for termination based on a preexisting lawfully applied company policy and
any ambiguities will be resolved against the employer.” The Board will not infer or assume that an
employer would have disqualified an individual based on the nature of his misconduct. John Cuneo, supra
at 857 fn. 7.
56 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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All full-time and part-time production employees employed at the Employer’s facility
located at 4 Heriot Place, Yonkers New York, including all production positions within the
above stated location; excluded all supervisors, managerial employees, watchmen and
guards as defined under the National Labor Relations Act.
(b) Discharging or otherwise discriminating against employees because of their activities
in support of the Union or for their other concerted, protected conduct;
(c)Threatening employees with discharge if they fail to provide work authorization
documentation because of their support for the Union;
(d) Promising employees improvements in wages and benefits if they renounce their
support for the Union;
(e) Impliedly threatening employees with job loss if the Union were to continue to
represent them;
(f) Soliciting employees to sign a petition withdrawing their support for the Union;
(g) Coercively polling or otherwise interrogating employees regarding their support for
the Union and threatening them with discharge if they fail to comply;
(h) Threatening employees with reduced work hours and plant closure as a result of
continued Union representation;
(i) Informing employees that an employee’s discharge was a result of his Union activities
and conditioning his reinstatement on employee withdrawal of support for the Union;
(j) Conditioning an employee’s reinstatement on the withdrawal of unfair labor practice
charges filed against Respondent.
(k) In any like or related manner interfere with, restrain or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Recognize the Union as the exclusive collective-bargaining representative of the
employees in the above-described unit and, upon request, bargain collectively and in good faith
concerning wages, hours and other terms and conditions of employment, and embody any
understanding reached in a signed agreement;
(b) Within 14 days from the date of the Board’s Order, offer Juan Hernandez full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights or privileges otherwise enjoyed;
(c) Make Juan Hernandez whole for any loss of earnings and other benefits as a result
of the discrimination against him, in the manner set forth in the remedy portion of this decision;
(d) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge and within 3 days thereafter notify the Juan Hernandez in
writing that this has been done and that the discharge will not be used against him in any way;
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(e) 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 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;
(f) Within 14 days after service by the Region, post at its facility in Yonkers, New York
copies of the attached notice marked “Appendix”57 in both English and Spanish. Copies of the
notice, on forms provided by the Regional Director for Region 2 after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since January 9, 2006;
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply;
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., March 26, 2007
____________________
Mindy E. Landow
Administrative Law Judge

57 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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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 withdraw recognition from the Union or fail and refuse to bargain collectively and
in good faith with the Union as the exclusive collective-bargaining representative of our
employees in the following appropriate unit:
All full-time and part-time production employees employed at the Employer’s facility
located at 4 Heriot Place, Yonkers New York, including all production positions within the
above stated location; excluded all supervisors, managerial employees, watchmen and
guards as defined under the National Labor Relations Act.
WE WILL NOT discharge or otherwise discriminate against employees because of their
activities in support of the Union or for their other concerted, protected conduct;
WE WILL NOT threaten employees with discharge if they fail to provide work authorization
documentation because of their support for the Union;
WE WILL NOT promise employees improvements in wages and benefits if they renounce their
support for the Union;
WE WILL NOT impliedly threaten employees with job loss if the Union were to continue to
represent them;
WE WILL NOT solicit employees to sign a petition withdrawing their support for the Union;
WE WILL NOT coercively poll or otherwise interrogate employees regarding their support for the
Union or threaten them with discharge if they fail to comply;
WE WILL NOT threaten employees with reduced work hours and plant closure as a result of
continued Union representation;
WE WILL NOT inform employees that an employee’s discharge was a result of his Union
activities and condition his reinstatement on employee withdrawal of support for the Union;
WE WILL NOT condition an employee’s reinstatement on the withdrawal of unfair labor practice
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charges filed against us;
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL recognize the Union as the exclusive collective-bargaining representative of the
employees in the above-described unit and, upon request, bargain collectively and in good faith
concerning wages, hours and other terms and conditions of employment, and embody any
understanding reached in a signed agreement;
WE WILL offer Juan Hernandez full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to his seniority or other rights or
privileges otherwise enjoyed;
WE WILL make Juan Hernandez whole for any loss of earnings and other benefits as a result of
the discrimination against him and remove from our files any reference to his unlawful discharge
and notify him in writing that this has been done and that the discharge will not be used against
him in any way.
TORTILLERIA LA POBLANITA
(Employer)
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.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
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, 212-264-0346.