Washington Fruit & Produce Co.

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1215 (N.L.R.B. 2004)

WASHINGTON FRUIT & PRODUCE CO.
343 NLRB No. 125
1215
Washington Fruit and Produce Company and Inter-
national Brotherhood of Teamsters, AFL–CIO,
d/b/a Teamsters United For Change. Cases 19–
CA–25404, 19–CA–25424, 19–CA–25441, 19–
CA–25533, 19–CA–25598, 19–CA–25659, 19–
CA–25673, 19–CA–25685, 19–CA–25689, 19–
CA–25702, 19–CA–25735, and 19–RC–13536
December 16, 2004
DECISION, ORDER AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On December 29, 2000, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent and the General Counsel filed exceptions1
and supporting briefs, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Order
and to adopt the recommended Order as modified3 and
set forth in full below.

1 There were no exceptions to the judge’s dismissals of the following
allegations: (1) the written warning to employees Rosio Diaz and Rosa
Quintanar for leaving work early on August 7, 1997, as well as the
written warning to employee Ana Guzman for leaving work early on
September 9, 1997; (2) the Respondent’s excessive supervision and
surveillance on August 8, 1997; (3) the Respondent’s August 1997
initiation of improved health care plan costs; (4) Supervisor Betty de
Weese’s telling employees they could not contribute to funeral flower
costs because of the Respondent’s no-solicitation rule; (5) the Decem-
ber 1997 comment by Supervisor Christina Bautista regarding the Re-
spondent’s “No Union” T-shirts; and (6) the December 9, 1998 inter-
view between employee Rigoberto Flores and Attorney Natalie Pierce.
2 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
3 In light of the fact that the Respondent’s employees are Spanish-
speaking, we shall modify the recommended Order to provide that the
Respondent post the attached notice to employees in both Spanish and
English.
We shall substitute a new notice in accordance with our decision in
Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d
534 (6th Cir. 2004). In addition, we shall modify the recommended
Order to provide standard remedial language and to conform the lan-
guage to the violations found.
I. ADOPTION OF JUDGE’S ULP FINDINGS
AND DISMISSALS
A. Summary
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) of the Act by (1) telling employ-
ees that they could not engage in union activity on com-
pany property; (2) coercively interrogating employees
about their union sympathies and threatening them with
the loss of their jobs4 for seeking union representation;
(3) making comments that employees who choose to
wear prounion apparel were “cutting their own throats”
or “putting their heads in a noose”; (4) ordering employ-
ees to wear “No Union” T-shirts; and (5) intimidating
employees by falsely accusing them of holding union
meetings during work.5 The judge also found, and we
agree, that the Respondent violated Section 8(a)(3) and
(1) by (1) issuing an enhanced warning to employee Ana
Guzman because she engaged in union activity;6 and (2)
issuing a warning to employee Indalecio Mata for park-
ing his car near the Respondent’s front entrance because
it contained a union placard.7

4 In his exceptions, the General Counsel contends that the judge
erred in failing to find that Bautista also threatened employees with job
loss in December 1997. We find it unnecessary to pass on this allega-
tion because the finding of such an additional violation would be cumu-
lative and would not affect the remedy. See also fn. 35, infra.
5 Member Schaumber would reverse the judge’s finding that Shift
Manager Bautista unlawfully threatened employees Flores, Martin
Alvarez, and Clemente Gomez when she told them that she did not
want them having any union meetings in the cold room. At the time
that Bautista made this statement, the three employees had halted work
and were engaged in conversation. In Member Schaumber’s view,
Bautista’s comment to them was merely a casual, offhand remark made
simply to prompt them to resume working and was not threatening or
coercive.
In response, Chairman Battista and Member Walsh emphasize that
Bautista did not simply direct the three employees to return to work.
Instead, she told them that she “did not want them having any union
meetings there in the cold room,” even though Bautista could not hear
what the three employees were saying. Under the circumstances,
Chairman Battista and Member Walsh agree with the judge that, in
essence, Bautista was threatening employees with discipline in the
event that they were perceived to be talking about the Union at work.
6 Member Schaumber would dismiss this allegation. See fn. 23, in-
fra.
7 Chairman Battista and Member Walsh emphasize that Mata had
parked in the same spot without incident for at least 3 weeks, and that
the Respondent could hardly have avoided noticing his car since it was
bright pink in color. Mata received a warning only after he placed two
union placards in his car’s windows. Thus, the Respondent treated him
disparately based on his display of prounion sentiments. Further, the
judge found that the Respondent’s prior efforts to enforce its parking
regulations were “desultory, uneven, and half-hearted.” Accordingly,
the Respondent has failed to show that it would have warned Mata even
in the absence of his show of support for the Union.
The judge, however, referred to the Mata warning as a violation of
Sec. 8(a)(1) and inadvertently neglected to mention that Sec. 8(a)(3)
was violated as well. We correct the judge’s oversight.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1216
We agree with the judge that the Respondent did not
violate Section 8(a)(3) and (1) by refusing to reinstate
Maria Abundiz upon her return from Mexico.8 We also
agree with the judge’s dismissal of the 8(a)(1) allegations
pertaining to Supervisor Christina Bautista’s asking two
employees who were dressing in heavy jackets before
entering the cold room, if they were putting on their
“bulletproof vests.”9
B. Dismissal of Videotaping Allegation10
As more fully explained below, we agree with the
judge that the Respondent did not violate Section 8(a)(1)
by videotaping employees during a union rally. The Re-
spondent is engaged in the business of nonretail packing

Contrary to his colleagues, Member Schaumber would dismiss the
complaint allegation that the Respondent enforced its parking regula-
tions more stringently against employee Mata by issuing a written
warning to him for parking in front of the Respondent’s office before 5
p.m. Member Schaumber notes that the Respondent did not treat Mata
disparately. Rather, both Mata and employee Oscar Moreno violated
the same parking rule on the same day, and the Respondent issued them
identical warnings. Contrary to the judge, Member Schaumber would
not find, without additional evidence, that the Respondent’s warning to
Moreno was merely an effort to “sanitize” its warning to Mata. Fur-
ther, while the Respondent had given oral warnings to parking rule
violators on two occasions in the past, Mata and Moreno were longtime
employees who, in the Respondent’s view, should have known the rule.
It is true that the Respondent gave longtime employee Cecilia Padilla
an oral warning when she parked in front of the office before 5 p.m. in
violation of the Respondent’s rule, but this was because the Respondent
knew that Padilla, whose shift began after 5 p.m. was accustomed to
parking there at the commencement of her shift. Her parking a bit
earlier was an aberration from her prior practice warranting an oral
instead of a written warning.
8 The judge found that Abundiz had effectively abandoned her job
by overstaying the leave of absence she had been granted, and, thus,
when she sought to return to work, she was no longer an employee of
the Respondent. In addition, the judge considered, under FES, 331
NLRB 9 (2000), Supp. Decision 333 NLRB 66 (2001), enfd. 301 F.3d
83 (3d Cir. 2002), whether the Respondent unlawfully refused to hire
Abundiz as a new employee. The judge found that the General Counsel
had failed to establish a prima facie case and that, even if he had, the
Respondent rebutted it. We affirm the judge’s dismissal of the refusal
to reinstate allegation, but we find it unnecessary to pass on the judge’s
FES analysis because the complaint did not allege a refusal to hire
violation, and the matter was not fully litigated at the hearing.
9 Although we dismiss this allegation, we specifically disavow the
judge’s reasoning that Bautista’s statement was not a threat because
Bautista was joking and “mak[ing] fun of the Union.” A supervisor’s
statements may be coercive regardless of his friendship with an em-
ployee and regardless of whether the remark was well intended. See
Trover Clinic, 280 NLRB 6 fn. 1 (1986). Board precedent makes clear
that the proper test in these circumstances is whether the supervisor’s
comments reasonably tended to interfere with the employees’ free
exercise of their Sec. 7 rights. Hanes Hosiery, Inc., 219 NLRB 338
(1975). Applying Board precedent, we find, in agreement with the
judge, that Bautista’s comments about “bulletproof vests” did not rea-
sonably tend to interfere with the free exercise of employees’ Sec. 7
rights.
10 Member Walsh does not agree with the dismissal of the videotap-
ing allegation. See his dissent in part.
and sale of fruit at its main office and two plants in
Yakima and Union Gap, Washington. The Union began
its campaign to organize the Respondent’s employees in
March 1996. The Union sought to represent a unit of
production and maintenance employees, and warehouse,
shipping, repair yard, and refrigeration employees at both
plants.
The Union determined that it would request recogni-
tion from the Respondent in a very public fashion by
holding a rally on August 12, 1997,11 in front of the Re-
spondent’s main office, which is located in a relatively
busy industrial area near downtown Yakima.12 The Un-
ion contacted the local television and newspaper media
to cover the event, but it gave no advance information
about the rally or its plans to the Respondent.
On August 11, Mike Gempler, an official of the Wash-
ington Fruit Growers League, told the Respondent’s
president, Rick Plath, that a group of union organizers
and union supporters, including high-ranking officials
from AFL–CIO headquarters in Washington, D.C.,
would be marching from the Union’s office at the local
train station to the Respondent’s main office the next
day. Although Plath knew nothing of the specifics of the
Union’s planned rally—i.e., what its purpose was; at
what time it would take place or how long it would last;
how many people would be involved; or whether it
would be peaceful—he believed that the Respondent
should be prepared for the event.
On the morning of August 12, Plath met with Ware-
house Manager Tommy Hanses and Human Resources
Manager Lupe Martinez. Plath told them about the Un-
ion’s planned rally and expressed to them his concerns
about the safety of employees and their cars; the safety of
the Respondent’s packing equipment; and possible inci-
dents of violence and trespassing.13 Plath asked Martinez
to have a video camera ready to videotape the rally so as
to preserve on tape evidence of any damage done to ve-
hicles and packing equipment on the Respondent’s prem-
ises.
In mid-afternoon on August 12, Teamsters and AFL–
CIO officials led a march of 50 to 60 people from the
Union’s train station office to the Respondent’s main
office, where they set up a large table, intended to serve
as a symbolic bargaining table. A union official esti-
mated that by the time the group arrived at the Respon-
dent’s office, there were over 100 demonstrators. The

11 All subsequent dates are in 1997 unless indicated otherwise.
12 The Respondent’s Yakima plant is located across the street from
its main office.
13 Plath testified that, prior to the August 12 rally, the Respondent
had called the police several times because of problems with trespass-
ers.
WASHINGTON FRUIT & PRODUCE CO. 1217
rally leaders sat at the table with the crowd around them
chanting for Plath to come out of the building, which he
did for a short time.
Martinez recorded about 19 minutes of videotape. The
tape shows that demonstrators in the street significantly
affected traffic. Traffic slowed to a crawl as some driv-
ers attempted to negotiate through the crowd, while other
drivers made U-turns to avoid the crowd. The “bargain-
ing table” and some benches in the street blocked traffic
and there were demonstrators sitting on cars. The tape
also shows that, at one point, a large number of demon-
strators entered the Respondent’s office as a group. Mar-
tinez testified that he recognized only 12 of the demon-
strators as being employees of the Respondent, while a
union official testified that she recognized about 40 em-
ployees. Either way, a majority of the approximately
100 demonstrators appeared not to be employees of the
Respondent. Three employees eventually made their
way into the office with a written demand for recogni-
tion, which the Respondent rejected.
The principles the Board applies to videotaping cases
were fully set out in National Steel & Shipbuilding Co.,
324 NLRB 499 (1997), enfd. 156 F.3d 1268 (D.C. Cir.
1998), where the Board stated:
[T]he fundamental principles governing employer sur-
veillance of protected employee activity are set forth in
F. W. Woolworth Co., 310 NLRB 1197 (1993). The
Board in Woolworth reaffirmed the principle that an
employer’s mere observation of open, public union ac-
tivity on or near its property does not constitute unlaw-
ful surveillance. Photographing and videotaping such
activity clearly constitute more than mere observation,
however, because such pictorial record keeping tends
to create fear among employees of future reprisals. The
Board in Woolworth reaffirmed the principle that pho-
tographing in the mere belief that something might
happen does not justify the employer’s conduct when
balanced against the tendency of that conduct to inter-
fere with employees’ right to engage in concerted activ-
ity. . . . Rather, the Board requires an employer engag-
ing in such photographing or videotaping to demon-
strate that it had a reasonable basis to have anticipated
misconduct by the employees. ‘‘[T]he Board may
properly require a company to provide a solid justifica-
tion for its resort to anticipatory photographing. . . .
The inquiry is whether the photographing or videotap-
ing has a reasonable tendency to interfere with pro-
tected activity under the circumstances in each case.”
[Citations omitted.]
The judge correctly followed this precedent and exam-
ined whether the Respondent had demonstrated sufficient
justification for its videotaping of the rally. The judge
found that at the time Path made his decision, he knew
that the Union was planning a high-profile event with a
group of people, including high-ranking union officials
from out of town, who would be marching from the train
station to hold a public demonstration at the Respon-
dent’s office. Plath did not know the purpose of the
march, or when it would start, or whether the Union
could control the crowd. What Plath did know, as found
by the judge, was that he had to be concerned about the
safety of both the Respondent’s employees and the Re-
spondent’s equipment. Faced with these circumstances,
and concerned about a recurrence of trespassing on the
property, Plath asked Martinez to videotape the upcom-
ing rally to gather and preserve evidence. Finding the
Respondent’s concerns with trespassing and safety issues
to be reasonable, the judge properly found no violation of
the Act based on the Respondent’s videotaping.14
Our dissenting colleague would find a violation be-
cause, in his view, the Respondent failed to establish
proper justification for its decision to videotape the Un-
ion’s rally. According to the dissent, the Respondent had
only a “mere belief” or ‘“sheer suspicion” that unpro-
tected activity might occur at the rally because Plath had
minimal information about the rally; the rally occurred
on public property; and the videotaping began without
any union or employee misconduct occurring that day or
on prior occasions. We disagree with the dissent on all
three points.
First, given the available information, Plath’s reason
for deciding to videotape was based on more than what
the Board refers to as a “mere” belief that something
might happen. At the time he made the decision, Plath
knew that there was going to be a demonstration possibly
involving a large number of people in front of the Re-
spondent’s office. Plath knew that officials from the
AFL–CIO had come into town from Washington, D.C.,
to take part in the demonstration. Plath could easily
visualize the consequences of such a high-profile gather-
ing, and he could predict that he would have safety,
property, and security issues to face.

14 See, e.g., Corporate Interiors, Inc., 340 NLRB 732, 746 (2003),
citing Ordman’s Park & Shop, 292 NLRB 953 (1989) (concern about
trespass issues constitutes a valid justification); Saia Motor Freight
Line, 333 NLRB 784 (2001) (concern about traffic safety provided a
legitimate justification).
The judge also relied on the Union’s failure to inform the Respon-
dent about the demonstration as grounds for finding that the videotap-
ing was not coercive. The judge speculated that the Union’s planning
of the demonstration suggested that the Union was “setting the com-
pany up for a fall . . . [and] seeking to provoke some sort of illegal
response.” We do not adopt this portion of the judge’s rationale for
dismissing the videotaping allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1218
Second, Plath certainly had every reason to expect that
there would be, at the very least, trespassing by union
supporters and organizers on the Respondent’s property,
given the close proximity of the public areas. Unlike
Robert Orr-Sysco Food Services, 334 NLRB 977, 978
(2001), where the Board found no proper justification for
employer videotaping of employees’ handbilling, the
public property in the present case literally began at the
respondent’s doorstep, rather than “two turns away from
the [respondent’s] driveway” as in Robert Orr-Sysco
Food Services. 334 NLRB at 978. Furthermore, given
prior incidents of trespassing on the Respondent’s prop-
erty, which had led Plath to contact the police, it was
prudent of Plath to plan on documenting the Union’s
rally.
Finally, the Respondent, like the employer in Saia, su-
pra, had legitimate safety and trespassing concerns which
justified its videotaping of the demonstration. and its
videotaping was consistent with the Board’s Rule that the
taking of photographs or videotaping to document tres-
passory activities for the purpose of making a claim of
trespass is lawful.15 In Saia Motor Freight Line, supra,
the Board found that the employer was justified in video-
taping handbilling activities, which occurred on the em-
ployer’s property in its driveway. The Board accepted
the employer’s concern about safety and potential negli-
gence liability as a legitimate justification for photo-
graphing employees engaged in handbilling. The Board
in Saia also pointed out that the employer began its
videotaping after the handbilling began and after becom-
ing dissatisfied with police efforts to stop handbillers’
interference with traffic entering its facility. It does not
follow, however, that the Board requires that “solid justi-
fication” can be established only after specific instances
of anticipated problems have occurred. The Board’s
rules regarding picture-taking of protected activity do not
mean that an employer is precluded from asserting a le-
gitimate concern simply because no disruption has yet
occurred. If that were the case, there would be no reason
for the Board to require “solid justification for its resort
to anticipatory photographing.” National Steel & Ship-
building, supra. As the Board has held, in a different
context, “The pedestrian need not wait to be struck be-

15 In fact, Plath’s concerns were justified. When the demonstrators
arrived, the Union immediately placed its symbolic bargaining table in
the public street in front of the office. Also, as the judge remarked,
traffic on the public street was disrupted and could have resulted in
personal injury. At one point a large number of demonstrators entered
the Respondent’s office. We do not, of course, rely on the incidents,
which occurred after the videotaping began, to justify the videotaping.
Rather, these ensuing events simply show that the safety and trespass-
ing issues about which Plath was already concerned were legitimate.
fore leaping for the curb.” Betts Cadillac Olds, Inc., 96
NLRB 268, 286 (1951).
Thus, we conclude, in agreement with the judge, that
the Respondent had a reasonable basis to expect miscon-
duct based upon the circumstances discussed above.
Accordingly, we conclude that the Respondent’s video-
taping of the union rally did not violate the Act.16 We
shall dismiss this allegation.
II. REVERSALS OF JUDGE’S ULP FINDINGS17
Contrary to the judge and our dissenting colleague, we
find that the Respondent did not violate Section 8(a)(3)
and (1) of the Act by: (1) warning employees and demot-
ing employee Pamela Smith for violating the Respon-
dent’s no-solicitation rule; and (2) by discharging em-
ployee Ana Guzman for work-related misconduct.
A. Discipline for Allegedly Violating
No-solicitation Rule
The Respondent maintains a no-solicitation rule for
employees which states:
Approaching fellow employees in the work place re-
garding activities, organizations or causes, regardless of
how worthwhile, important or benevolent, can create
unnecessary apprehension and pressures for fellow em-
ployees. Such conduct is inappropriate and unneces-
sary. . . . No employee shall solicit or promote support
for any cause or organization during his or her working
time or during the working time of the employee or
employees at whom such activity is directed.18
The General Counsel concedes that this rule, which was in
effect prior to the union organizing campaign, is valid on its
face. He argues, instead, that the Respondent discriminato-
rily enforced the rule in violation of Section 8(a)(3) and (1)
by applying it to discipline employees Pam Smith, Maria
Andrade, Rosa Salas, and Sonia Abundiz for discussing the
Union while working in 1997.
On September 4, Smith’s duties included delivering an
electric motor to coworker Clayton Johnson at the Union
Gap plant. While delivering the motor to the plant,
Smith, an active union organizer, initiated a conversa-

16 As the judge found, the possibility that the Respondent’s videotap-
ing could have coerced the employees is remote. Several TV stations
were also covering the event, at the Union’s request, along with the
Yakima Herald newspaper. Thus, it was the Union, not the Respon-
dent, who first introduced cameras to the demonstration.
17 Member Walsh does not agree with the reversals of the judge’s
unfair labor practice findings. See his dissent in part.
18 The rule states that “working time” includes “all time for which an
employee is paid and/or is scheduled to be performing services for the
Company; it does not include break periods, meal periods, or periods in
which an employee is not, and is not scheduled to be, performing ser-
vices or work for the Company.”
WASHINGTON FRUIT & PRODUCE CO. 1219
tion, which included references to the Union, with em-
ployee Gabriel Villarreal while she waited for Johnson.
After he arrived, Johnson removed the motor from
Smith’s car and, accompanied by Smith, brought it inside
the plant. Johnson testified that as they walked to the
plant, Smith asked him how he felt about the Union and
told him that a union would mean better wages and bene-
fits. Although Johnson indicated he did not support the
Union, Smith continued to press him about it. Smith
later continued her conversation about the Union with
Villarreal during an approximately 15-minute trip to the
local hardware store to do an errand for Johnson. Smith
does not deny that her conversations with Johnson and
Villarreal occurred during working time and were in-
tended to solicit and promote support for the Union.
Johnson reported Smith’s conversations to the Respon-
dent.
The Respondent also received complaints from five
other employees that prounion employees Andrade,
Salas, and S. Abundiz were “harassing” them with talk
about the Union and were constantly pressuring them to
attend meetings and to support the Union. One employee
testified that she asked her supervisor to move her work-
station away from Abundiz to escape the harassment.
Andrade and Salas did not deny that they solicited sup-
port for the Union during worktime. Abundiz did not
testify.
On September 10, the Respondent issued Smith a
warning for “soliciting the union during work hours at
the Union Gap plant. It is a violation of company policy
to solicit during work hours.” The warning also stated
that Smith would be dismissed for a further incident of
soliciting for the Union during working hours. The Re-
spondent also removed Smith from her parts runner posi-
tion, a demotion resulting in loss of premium pay. On
October 23, the Respondent issued written warnings to
Andrade, Salas, and S. Abundiz about “[c]omplaints
from several employees for soliciting the Union during
work time.”
The judge found that these warnings and the demotion
were unlawful because the employees involved did no
more than talk about the Union while they were working
and that this conduct did not amount to “solicit[ing] or
promot[ing] support for any cause or organization” in
breach of the Respondent’s no-solicitation rule. The
judge also stressed that there was no showing that these
conversations interfered with the work of Smith,
Andrade, Salas, S. Abundiz or any employee. Relying
on Jennie-O Foods, 301 NLRB 305 (1991), the judge
further concluded that, in effect, the Respondent “was
imposing a no union talk rule” against these employees,
which is a violation of Section 8(a)(1).
We disagree with the judge’s analysis. The General
Counsel concedes that the Respondent’s rule is valid on
its face. The rule, on its face, prohibits solicitation and
the promotion of support. These terms are to be under-
stood in terms of the overall purpose of the rule. That
purpose is readily apparent from the opening sentence of
the rule. That is, the Respondent is concerned about em-
ployees “approaching fellow employees in the work
place regarding activities, organizations, or causes.” Such
“can create unnecessary apprehension and pressure for
fellow employees.” Accordingly, such conduct is “inap-
propriate.” The conduct involved here was of that kind
and, thus, clearly fell within the ambit of the rule. Ac-
cordingly, without resolving the semantic question of
whether the words “solicit” or “promote,” standing
alone, would cover the conduct here, the conduct here
clearly fell within the ambit of the rule.
Similarly, the fact that the Respondent tolerates “talk”
in the workplace does not warrant a contrary result. It is
one thing, for example, to “talk” to fellow employees
about Sunday’s football game. It is quite another to try
to “persuade” fellow employees to support a cause. The
former is allowed. The latter is not, irrespective of
whether the cause is the union or something else.19
Finally, the fact that there was no actual interference
with work does not render unlawful the rule or its appli-
cation. The Board has found that rules restricting solici-
tation activity during worktime are permitted because of
the employer’s right to prevent interference with work.
Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). There
is, however, no requirement that actual interference be
shown to justify the rule.
The conduct for which Smith, Andrade, Salas, and S.
Abundiz were disciplined was encompassed by the Re-
spondent’s valid rule. Thus, the Respondent clearly
permits employees to talk among themselves while
working, without restriction as to subject matter, so long
as their personal discussions do not rise to the level of
solicitation or promotion within the meaning of the rule.
Here, the conduct of these four employees exceeded dis-
cussion and was proscribed under the Respondent’s rule.
Pam Smith did not merely talk to Johnson and Villareal
about the Union—she persistently urged them to support
the Union. Andrade, Salas, and S. Abundiz also did not
simply talk to their coworkers about the Union—they
constantly pressured them to attend meetings and to sup-
port the Union. This conduct is precisely that which the
Respondent intended by proscribing promotion and so-
licitation. Thus, based on a concededly valid rule, the

19 There is no allegation that approaching employees about other
causes (e.g., religion) was permitted under the rule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1220
Respondent lawfully prohibited employees from solicit-
ing or promoting support for a cause during working
time.
Accordingly, we shall dismiss the 8(a)(3) and (1) alle-
gations based on these four warnings and Smith’s demo-
tion.
B. Discharge of Ana Guzman
On November 12, the Respondent discharged Guzman
for a November 11 incident in which she “purposely let a
tray of apples fall to the ground.” The facts leading to
her discharge are not in dispute. Guzman, the leading
union adherent,20 was working at the end of line 35 pick-
ing trays of apples from the conveyor belt and packing
the trays into a shipping carton. Cristina Herrera also
was working with her arranging the trays on the con-
veyor belt. Other employees were working on lines 34
and 36. Three supervisors, including Kirk McGarity,
were positioned on the catwalk above the conveyor belts,
which put them in a position to observe the employees’
work.21
A tray of apples moved down line 36, but the person
responsible for line 36 did not see it. As the judge found,
line employees have a responsibility to assist fellow line
employees when needed. McGarity called out to warn
Guzman, who was the closest to the end of line 36, that
the tray was about to fall off the belt. Guzman did not
respond. As a result, some apples fell into the shipping
carton and some onto the floor. McGarity believed that
Guzman deliberately allowed the apples to fall. Guzman
testified that she heard McGarity yell at her about the
time she heard the tray of apples fall off the conveyor
belt and that she was attending a tray of apples on her
own line at the time. When McGarity questioned
Guzman as to why she had not stopped the tray from
falling, Guzman responded that she did not see the apples
fall and that line 36 was not her line.
McGarity reported the incident to Night-Shift Manager
Eric Hanses, who investigated the incident. He asked
McGarity for a written statement, interviewed Guzman
about her view of the incident, and asked for statements
from employees who worked nearby line 36. McGarity
provided a written statement of what he observed.
Hanses asked Guzman what had happened, and she re-
plied that it was not her line. Hanses also spoke to
nearby employees. Several of Guzman’s coworkers told
Hanses that Guzman had asserted on more than one oc-
casion that employees on the line should not work so

20 The judge described Guzman as “relentless in her pursuit of seek-
ing advantage” of opportunities to advance the Union’s cause.
21 There is no allegation that the supervisors’ observation of employ-
ees from that catwalk was unlawful.
hard and that they should indeed let apples fall off the
conveyor belts if there were not enough employees avail-
able to perform the job. In fact, Hanses had heard this
assertion previously from Noemi Mendes regarding the
August 6 incident: Mendes told him that Guzman had
told her, “Don’t work so hard. Just let the bags fall.”
Eric Hanses next reported the incident to Warehouse
Manager Tommy Hanses with the recommendation that
Guzman should be discharged. Tommy Hanses con-
ducted his own investigation by speaking with the super-
visors who were on the catwalk above the conveyor
belts, including Miriam Delgado who stated that Guzman
had allowed the tray to fall. Tommy Hanses also spoke
with a number of employees who worked in the area of
line 36. Tommy Hanses did not speak with Guzman
because she had already made a statement to McGarity in
which she declined to accept responsibility for the inci-
dent. After reviewing these supervisors’ and employees’
statements and Guzman’s disciplinary record, which in-
cluded prior verbal warnings for past work-related mis-
conduct, Tommy Hanses concluded that Guzman should
be discharged.
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging Guzman. He
described the warehouse manager’s investigation as
“shoddy,” faulting T. Hanses for not interviewing
Guzman and disagreeing with his reliance on statements
of coworkers who were not, in the judge’s view, in the
best position to see what had happened. The judge also
found that T. Hanses could not properly rely on the ver-
bal warning Guzman received in August for a similar
incident because that warning was unlawful in that it was
substantially motivated by the Respondent’s animus to-
wards the Union.
We assume, without deciding, that applying the princi-
ples of Wright Line22 the General Counsel has proved by
a preponderance of the evidence that Guzman’s union
activities were a substantial and motivating factor in the
Respondent’s decision to discharge her. We find, how-
ever, contrary to the judge and our dissenting colleague,
that the Respondent has shown that it would have dis-
charged Guzman even in the absence of her union activi-
ties.
First, Guzman had a history of repeatedly ignoring and
violating the Respondent’s lawful work rules. For ex-
ample, on July 29, Guzman deliberately violated the Re-
spondent’s valid no-distribution rule by attempting to
distribute a newspaper to employees while they were
working. The judge concluded that the day-shift man-

22 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
WASHINGTON FRUIT & PRODUCE CO. 1221
ager lawfully told her she could not distribute materials
in a work area at any time. Additionally, on September
9, Guzman deliberately walked off the job before all her
work was finished. The judge found that the Respon-
dent’s written warning to Guzman for this incident did
not violate the Act. Finally, the Respondent issued warn-
ings to Guzman and her coworker, Mendes, on August 6
for an incident in which 15 bags of fruit fell from the
overflow table to the floor. The judge found that the
Respondent violated the Act by giving a warning to
Guzman which contained a threat of discharge, which the
warning to Mendes did not contain. We agree with the
judge that the August 6 warning is unlawful only because
of the “enhancement” it contained, i.e., threat of dis-
charge, which shows that the Respondent unlawfully
treated Guzman differently than it treated Mendes for the
same incident (because of Guzman’s union activity).23
However, we point out, as the judge did, that the “con-
cept” of the warning—letting bags of fruit fall to the
floor—is valid, but the “enhancement” of it to threaten
discharge to Guzman but not to Mendes is not valid.24
Second, as set forth above, during the course of Eric
Hanses’ investigation, several of Guzman’s coworkers
told Hanses that Guzman had informed employees on
previous occasions, including August 6, that they should
not work so hard and that they should just let the apples
fall off the conveyor belt. These employee statements,
together with the fact that similar incidents were used by
Guzman to provoke confrontations with the Respondent,
convinced Hanses that Guzman’s actions in failing to
prevent the tray of apples from falling to the floor on
November 11 were deliberate.
Finally, we find that the Respondent’s investigation
into the November 11 incident was not, in fact,
“shoddy,” as the judge described, but was, instead, thor-
ough and complete. Almost contemporaneously with the
incident, McGarity asked Guzman why she had not pre-

23 Contrary to his colleagues, Member Schaumber would reverse the
judge’s finding that the August 6 warning to employee Guzman was
unlawful. The judge found the warning unlawful solely on the basis
that the Respondent treated Guzman disparately, in that its warning to
her was more severe. Unlike Mendes, however, Guzman had a prior
work rule violations.
In response, Chairman Battista and Member Walsh point out that the
August 6 Guzman warning, on its face, contains no reference whatso-
ever to a prior work-rule violation. Indeed, the warning form contained
a section entitled “Previous Warnings,” but no entries were made in it.
As the warning itself shows that the Respondent did not, in fact, rely on
any prior misconduct, the more severe discipline Guzman received
cannot be justified on that ground.
24 In fact, the judge states: “Had the warnings been equal, it would
be hard to say that [the supervisor] had done anything wrong. What
happened here is that [the supervisor] wrongfully enhanced the warning
to Guzman.”
vented the tray of apples from falling. Guzman re-
sponded that not only had she not seen the tray, but also
that, in essence, it was not her responsibility because it
was not her line. However, the Respondent’s work rules
clearly establish that although an employee may be pri-
marily responsible for a particular line, that employee is
also responsible for assisting other employees on other
lines nearby. McGarity’s oral report of the incident to
Eric Hanses prompted Hanses to conduct his own inves-
tigation, which included talking to Guzman and her co-
workers who were eyewitnesses to the incident. Eric
Hanses’ report prompted Tommy Hanses to also conduct
his own investigation, which included getting statements
from three supervisors and six employees.25 He did not
speak with Guzman because she had already given her
statement. Tommy Hanses concluded, on the basis of
these statements, that Guzman saw the tray of apples on
line 36 in time to help the employee assigned to line 36
and to prevent them from falling to the floor. There was
no evidence that Guzman did not see the tray about to
fall, and she was the employee in the best position to
prevent the fall because she was physically closest to line
36. Hanses reasonably concluded that Guzman deliber-
ately ignored what was happening and purposely let the
tray of apples fall to the floor.26
Accordingly, we find, for the reasons discussed above,
that the Respondent did not violate the Act by discharg-
ing Ana Guzman. We shall dismiss this allegation.

25 We do not find it problematic that T. Hanses disregarded the state-
ment of Antonia Fernandez which tended to corroborate Guzman’s
version, as it was the only statement which did so.
26 The dissent claims that the Respondent’s Wright Line burden was
to show that the discharge would have occurred even in the absence of
the unlawful enhanced warning on August 6. Assuming arguendo that
this is so, we find that the Respondent satisfied its burden here. The
Respondent has established that Guzman had a history of violating its
work rules, as evidenced by the lawful July and September warnings.
The Respondent also has established that Guzman had a history of
letting apples fall onto the floor, regardless of whether the Respondent
unlawfully enhanced her discipline for that incident, and that she had
advocated such conduct among her fellow employees. Lastly, after
investigating the November 11 incident, the Respondent had reasonable
grounds for believing that Guzman deliberately permitted the tray of
apples to fall to the floor again. Guzman’s status as the leading union
adherent does not immunize her from discipline for such deliberate
misconduct. Thus, regardless of whether the Respondent unlawfully
enhanced the warning given to Guzman on August 6 for her miscon-
duct, the record amply supports a finding that the Respondent would
have discharged her for her misconduct on November 11.
We recognize that the Respondent’s warning of August 6 was that
Guzman would be discharged if there were another incident of drop-
ping fruit. However, this is not the same as saying that no discharge
would have occurred in the absence of the warning. In addition, the
November 11 incident was reasonably perceived as a deliberate drop-
ping of fruit. We find that the deliberate dropping of fruit would have
caused the discharge, even if there had been no prior warning.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1222
III. THE RESPONDENT’S CONDUCT DOES NOT WARRANT
SETTING ASIDE THE ELECTION27
A. Objection 23
On January 8, 1998, a Board election was held in the
production and maintenance employees unit sought by
the Union. The election results reveal that out of ap-
proximately 300 eligible voters, there were 121 votes for
and 161 votes against the Union; with 1 void and 8 chal-
lenged ballots. The judge recommended, inter alia, that
the election be set aside on the basis of the Union’s Ob-
jection 23. That objection alleges that the Respondent
failed to furnish correct addresses for employees whose
names were listed on the Excelsior28 list provided to the
Union. We find, contrary to the judge and our dissenting
colleague, that Objection 23 has no merit, and we, there-
fore, overrule that objection for the following reasons.
On December 2, the Respondent’s attorney, Daniel
Croley, timely faxed the Excelsior list to the Region who
then conveyed the list to the Union. On December 16,
the Union’s attorney, Robert Gibbs, informed the Region
that the Excelsior list contained incorrect names and ad-
dresses. The Region notified Croley that 12 addresses on
the list appeared to be incorrect. On December 18, Gibbs
informed the Region that 87 of 306 addresses on the Ex-
celsior list (or about 28 percent) were incorrect, but that
the Union, on its own, had found addresses for all but 28
employees.29 Neither Gibbs nor the Region conveyed
this additional information to the Respondent. On De-
cember 19, Croley informed the Region that it would
correct the 12 inaccurate addresses. On January 5, 1998,
the Respondent provided a revised Excelsior list correct-
ing the 12 addresses.
In concluding that Objection 23 should be sustained,
the judge incorrectly relied on Woodman’s Food Mar-
kets, 332 NLRB 503 (2000), which involved the omis-
sion of names from an Excelsior list, not the inclusion of
inaccurate employee addresses on the list. We find that
the instant case is controlled by the Board’s decision in
Women in Crisis Counseling, 312 NLRB 589 (1993).
In Women in Crisis Counseling, supra, the Excelsior
list contained incorrect addresses for 6 of 20 employees,
a 30-percent inaccuracy rate. The Board stated that, “[I]n
determining whether an employer has substantially com-
plied with [Excelsior], the Board has consistently viewed
the omission of names as more serious than inaccuracies
in addressees . . . [because it] is far more likely to frus-

27 Member Walsh does not agree with this section of the decision.
See his dissent in part.
28 Excelsior Underwear, 156 NLRB 1236 (1966).
29 The record does not make clear whether some or all of the original
12 incorrect addresses were included in the Union’s remaining 28 in-
correct addresses.
trate the Board’s purposes [of ensuring communication]
than inaccuracies in addresses. . . . A party with an em-
ployee’s name but an inaccurate address at least has a
key piece of information which can be used to identify
and communicate with the person by means other than
mail.” Id. at 589. The Board found that a 30-percent
inaccuracy rate for addresses on the Excelsior list did not
warrant setting aside the election there.30 Compare, Mod
Interiors, 324 NLRB 164 (1997), where the Board held
that a 40-percent inaccuracy rate was sufficient to sustain
an election objection.
Here, the Union claimed that 87 of the 306 addresses
on the Excelsior list (or about 28 percent) were inaccu-
rate. However, the Union admitted that on December 18
it had obtained correct addresses for all but 28 of the 306
employees (or about 9 percent). For the 3-week period
preceding the January 8 election, the Union was in pos-
session of accurate addresses for more than 90 percent of
the employees whose names were included on the Excel-
sior list. Thus, the Union had the opportunity to com-
municate with at least 90 percent of the unit employees at
their homes. In addition, there is no evidence or conten-
tion that the inaccuracies on the Excelsior list were the
result of bad faith or gross negligence by the Respondent.
Therefore, relying on Women in Crisis Counseling, su-
pra, we find that the Respondent substantially complied
with the eligibility requirements of Excelsior Underwear,
supra. Accordingly, we shall overrule Objection 23.31

30 In Women in Crisis Counseling, supra, the Board also noted that
the inaccuracies were not the result of gross negligence or bad faith.
The Board recognized that its greater tolerance of address inaccuracies
as compared to address omissions reflected a “pragmatic recognition”
that an employer may not be able to maintain a completely accurate list
of current addresses. See Women in Crisis Counseling, supra at 589.
We note that in the present case the Respondent’s controller and payroll
clerk testified that employees are required to notify them if they change
their address, but since paychecks and tax information are hand-
delivered, the rule is not enforced.
31 The following cases relied on by the dissent are inapposite. Alco-
hol & Drug Dependency Services, 326 NLRB 519 (1998), involved the
failure of the union to timely receive the Excelsior list. In the instant
case, the Excelsior list was timely received by the Union. With respect
to K.T.I., Inc., 330 NLRB 1293, 1294 (2000), a close reading of the
facts reveals that the union may not have been able to communicate
with as many as a third of the unit due to inaccurate addresses on the
Excelsior list. Here, by contrast, as explained above, the Union had the
correct addresses of all but 9 percent of the employees included on the
Excelsior list well before the election.
Our dissenting colleague asserts that we should direct a second elec-
tion because the number of incorrect addresses could be determinative
in this case. We note that under existing precedent the number of omis-
sions of employees’ names from the Excelsior list may be considered in
determining whether to set aside the election. However, the Board has
not decided to extend that analysis to incorrect addresses. See Wood-
man’s Food Markets, 332 NLRB 503 fn. 11 (2000).
WASHINGTON FRUIT & PRODUCE CO. 1223
B. December “No Union” T-Shirt Incident
The judge also recommended that the election should
be set aside because the Respondent committed an unfair
labor practice during the critical preelection period. The
judge referred to a late December incident involving
Shift Manager Christina Bautista and employees Aleida
Barton and Rosa Garcia. The judge found, and we agree,
that Bautista violated Section 8(a)(1) by unlawfully di-
recting Barton and Garcia to wear a “No Union” T-shirt
at work against their wishes. However, we do not agree
with the judge that Bautista’s conduct also warrants set-
ting aside the election.
We recognize that “it is the Board’s usual policy to di-
rect a new election whenever an unfair labor practice
occurs during the critical period since ‘[c]onduct viola-
tive of Section 8(a)(1) is, a fortiori, conduct which inter-
feres with the exercise of a free and untrammeled choice
in an election’.”32 (Emphasis in original.) The only ex-
ception to this policy is “where the misconduct is de
minimis: ‘such that it is virtually impossible to conclude’
that the election outcome has been affected.”33
In determining whether misconduct could have af-
fected the results of the election, the Board has consid-
ered the number of violations, their severity, the extent of
dissemination, and the size of the unit.34 Other factors
the Board considers include the “closeness of the elec-
tion, proximity of the conduct to the election date, [and
the] number of unit employees affected.” Detroit Medi-
cal Center, 331 NLRB 878 (2000) (citations omitted).
Thus, in Coca-Cola Bottling Co., 232 NLRB 717, 718
(1977), the Board declined to set aside the election de-
spite 8(a)(1) violations consisting of interrogations af-
fecting 2 employees out of a unit of 106 employees.
Here, there is no evidence that the December T-shirt
incident, which directly involved only 2 employees, was
widely disseminated among the approximately 300 em-
ployees in the unit. In addition, the incident occurred
more than a week before the election. Given the isolated
nature of the misconduct and the fact that the election
was not close, we find it “virtually impossible” to con-
clude that the election outcome could have been af-

32 Clark Equipment Co., 278 NLRB 498, 505 (1986), quoting Dal-
Tex Optical Co., 137 NLRB 1782, 1786 (1962).
33 Sea Breeze Health Care Center, 331 NLRB 1131 (2000), quoting
Super Thrift Markets, 233 NLRB 409 (1977). Chairman Battista and
Member Schaumber note that the “virtually impossible” standard re-
flects current Board precedent. While expressing no view on the ap-
propriateness of the “virtually impossible” standard, they find that, in
any event, that standard has been satisfied in the present case.
34 Super Thrift Markets, supra. See also Caron International, Inc.,
246 NLRB 1120 (1979).
fected.35 We shall, accordingly, certify the results of the
election.
ORDER
The National Labor Relations Board orders that the
Respondent, Washington Fruit and Produce Company,
Yakima, Washington, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Telling employees they cannot engage in union ac-
tivity on company property.
(b) Threatening employees with loss of their jobs if
they seek union representation.
(c) Coercively interrogating employees about their un-
ion sympathies.
(d) Interfering with employees’ free exercise of their
Section 7 rights by telling employees that those who
wear apparel with a prounion message are “cutting their
own throats” or are “putting their heads in a noose,” or
any similar remark.
(e) Ordering employees to wear apparel with a pro-
company message.
(f) Issuing warnings to employees because they choose
to display prounion placards on their personal vehicles.
(g) Issuing or enhancing warnings to employees be-
cause they are engaging in protected union activity.
(h) Intimidating employees by falsely accusing them of
holding union meetings during work.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the written warnings given to Indalecio
Mata and Ana Guzman on August 6, 1997.
(b) Within 14 days from the date of this Order, remove
from its files any references to the unlawful written

35 The General Counsel claims that there was an additional unfair la-
bor practice committed during the critical period when, in mid-
December, Bautista allegedly threatened employees with the loss of
their jobs. The incident was not specifically pleaded in the complaint
and the judge did not address it in his decision. We previously stated
above in fn. 4 of our decision that we find it unnecessary to reach this
issue because it would be cumulative in any event.
However, assuming arguendo that Bautista’s comment was a viola-
tion of Sec. 8(a)(1), we find, under the standard set forth above in this
section of our decision, that it does not warrant setting aside the elec-
tion. Employee Barton testified that only two other employees were
close enough to have heard Bautista’s comments. There is no evidence
that the incident was disseminated within the 300-person unit. At most,
therefore, the alleged incident directly affected only three employees,
and the Union lost the election by 40 votes. Further, although the al-
leged threat was serious, it was made approximately 3 weeks before the
election. Thus, we find it “virtually impossible” to conclude that this
alleged misconduct affected the election results.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1224
warnings given to Mata and Guzman, and within 3 days
thereafter notify Mata and Guzman in writing that this
has been done and that the warnings will not be used
against them in any way.
(c) Within 14 days after service by the Region, post at
its packing plants in Yakima and Union Gap, Washing-
ton, copies of the attached notice marked “Appendix.”36
Copies of the notice, in English and Spanish, on forms
provided by the Regional Director for Region 19, after
being signed by the Respondent’s authorized representa-
tive, 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 Respon-
dent 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 facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since July 1, 1997.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations not found.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for International Brotherhood of Teamsters,
AFL–CIO, d/b/a Teamsters United for Change, and that
it is not the exclusive representative of the Respondent’s
employees in the appropriate unit.
MEMBER WALSH, dissenting in part.
The majority erroneously dismisses the complaint al-
legations that the Respondent violated the Act by disci-
plining four employees for talking about the Union, by
discharging the leading union adherent, Ana Guzman,
and by videotaping employees participating in a union
rally. In addition, the majority errs in overruling the Un-
ion’s Excelsior1 objection and failing to direct a second
election. These issues are discussed in turn below.2

36 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 Excelsior Underwear, 156 NLRB 1236 (1966).
2 In all other respects, I agree with the majority’s decision.
I. THE UNLAWFUL DISCIPLINE OF THE FOUR
EMPLOYEES (PAM SMITH, MARIA ANDRADE, ROSA
SALAS, AND SONIA ABUNDIZ)
A. Factual Background
Pam Smith, a long-term employee of the Respondent,
was a particularly active union supporter. On September
4, 1997,3 she spoke to two employees during working
time about the advantages of unionization, but she did
not present them with a card or petition to sign. The
judge specifically found that “her efforts were simply
talk.” The judge also found that the “Respondent’s em-
ployees . . . speak to each other frequently about all sorts
of things and have never been disciplined for doing so.”
Nevertheless, on September 11, the Respondent issued
Smith the following warning: “Pam was soliciting the
union during work hours at the Union Gap plant. It is a
violation of company policy to solicit during work hours.
Future solicitation during work hours will result in dis-
missal.”4 Simultaneously, Smith was demoted and suf-
fered a loss in pay.
On October 23, the Respondent issued similar warn-
ings to prounion employees Maria Andrade, Rosa Salas,
and Sonia Abundiz, allegedly because it had received
reports from other employees about “harassment.” The
warnings threatened Andrade, Salas, and Abundiz with
discharge if a similar occurrence were to take place. The
warnings are identical and state: “Complaints from sev-
eral employees for soliciting the Union during work-
time.” The judge found, however, that Andrade, Salas,
and Abundiz did not solicit their coworkers to sign any
documents, but merely talked to them about the Union.
The judge also found that the Respondent made “no ef-
fort . . . to determine the actual facts,” but summarily
“concluded that [the employees’] talking about the Union
qualified as harassment.”
B. Analysis
As the judge recognized, an employer violates the Act
when it prohibits talking about the union during work-
time while permitting discussions about any other sub-
ject. Jennie-O Foods, 301 NLRB 305, 316 (1991).
That is precisely what occurred here. Although the Re-
spondent permitted talking on the job about a wide vari-
ety of subjects unrelated to work, it discriminatorily sin-
gled out the four employees in question for discipline
because they spoke in favor of the Union. Significantly,
the four employees did not engage in “soliciting,” as the

3 All subsequent dates are in 1997 unless otherwise indicated.
4 The Respondent maintains a rule stating that employees may not
“solicit or promote support for any cause or organization during his or
her working time or during the working time of the employee or em-
ployees at whom such activity is directed.”
WASHINGTON FRUIT & PRODUCE CO. 1225
Respondent erroneously alleged in the warnings it issued
them. Under established precedent, “talking about a un-
ion” is not the same thing as “solicitation for a union.”
W. W. Grainger, Inc., 229 NLRB 161, 166 (1977), enfd.
582 F.2d 1118 (7th Cir. 1978). ‘“Solicitation’ for a un-
ion usually means asking someone to join the union by
signing his name to an authorization card.” Id. The
judge specifically found [phrase deleted] that the four
employees’ conduct did not rise to the level of “solicita-
tion” in violation of the Respondent’s no-solicitation
rule.
The majority concedes that the Respondent could not
discipline the employees for merely talking about the
Union. And the majority stops short of finding that the
employees engaged in prohibited “soliciting.” Neverthe-
less, the majority concludes that the discipline was law-
ful. The majority reasons that the employees’ conduct
fell generally within “the ambit of the rule,” which pro-
hibits not only “soliciting,” but also “promoting” a cause.
I disagree.
As set forth above, Board law is clear that an employer
cannot prohibit employees from simply talking about a
union, if it allows talking about other subjects. Despite
the fact that the General Counsel has not challenged the
“promoting” a cause portion of the rule as being over-
broad in violation of Section 8(a)(1), it is improper, in
my view, to allow the Respondent to enforce an other-
wise clearly unlawful prohibition based on such highly
ambiguous language. Rather than reach such a result, I
would simply read the Respondent’s rule narrowly, as
prohibiting solicitation, rather than prohibiting simply
talking about the Union. Since the judge correctly found
that the employees did not engage in solicitation in viola-
tion of the rule, it follows that the Respondent violated
Section 8(a)(3) and (1) when it issued Smith a warning
and demoted her, and when it issued warnings to
Andrade, Salas, and Abundiz, all because of their pro-
tected activities on behalf of the Union.
II. THE UNLAWFUL DISCHARGE OF ANA GUZMAN
A. Factual Background
Ana Guzman was the leading union adherent, and her
union activity was well known to the Respondent. In-
deed, the judge found, and the majority agrees, that, just
months before her discharge, the Respondent unlawfully
treated her in a disparate manner because of her visible
union activity. Specifically, on August 6, Guzman and a
coworker were issued warnings for their involvement in
an incident in which fruit fell to the floor. The Guzman
warning concluded with an admonition that she would be
discharged if a similar incident occurred. The co-
worker’s warning, however, contained no reference to a
consequence if a similar incident should occur. The
judge found that there was no explanation for this differ-
ent treatment. Accordingly, he concluded, and the ma-
jority agrees, that the Respondent violated the Act when
it “enhanced” the warning to Guzman because of her
union activity.
On November 12, the Respondent discharged Guzman,
allegedly for her involvement in another fruit-dropping
incident. A supervisor claimed that Guzman purpose-
fully let the fruit fall; Guzman, on the other hand,
claimed that she did not see the fruit fall and that the fruit
was not on her “line.” The Respondent conducted an
“investigation” that did not include an interview with
Guzman. The discharge slip described the Respondent’s
reasons as follows: “After a thorough investigation it is
clear that Ana Guzman purposely let a tray of apples fall
to the ground at 11:20 p.m. last night. She has had re-
peated oral warnings and a written warning stating that
this is absolutely prohibited and will be discharged if this
occurred again.” Guzman signed the slip under protest,
asserting that the real reason was her union activity.
B. Analysis
Little need be said in support of the judge’s finding
that Guzman was discharged in violation of the Act.
There can be no doubt that the General Counsel has satis-
fied his Wright Line5 burden of showing that antiunion
animus was a motivating factor in the Respondent’s deci-
sion. Thus, the record shows that Guzman was the lead-
ing union adherent, that the Respondent knew of her par-
ticipation in union activities, and that the Respondent
demonstrated hostility toward the Union and employees
who supported it, as evidenced by the unlawful warning
the Respondent issued to Guzman on August 6.
The only real question is whether the Respondent has
satisfied its Wright Line burden of showing that it would
have discharged Guzman even in the absence of her un-
ion activities. That question can be answered simply by
examining the reasons the Respondent gave for discharg-
ing her. Prominent among these is the Respondent’s
reliance on the unlawful August 6 warning. Since the
discharge was based on the prior warning, and since the
prior warning itself was unlawful, the Respondent could
meet its Wright Line burden only by showing that the
discharge would have occurred even in the absence of the
unlawful warning. This it failed to do. To the contrary,
the record shows a clear linkage between the unlawful
warning and the discharge. Thus, the unlawful warning
itself stated that Guzman would be discharged if a simi-
lar incident were to occur, and the discharge slip charac-

5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1226
terized the November 11 event as just such an incident.
Therefore, the Respondent has not shown that it would
have discharged Guzman in the absence of the unlawful
warning. Accordingly, the judge correctly concluded
that Guzman’s discharge violated Section 8(a)(3) and (1)
of the Act.
III. THE UNLAWFUL VIDEOTAPING OF THE UNION RALLY
A. Factual Background
On August 11, the Respondent’s president, Rick Plath,
received a phone call from Mike Gempler, an official of
the Washington Fruit Growers League. Gempler told
Plath that the Union was planning a march to the Re-
spondent’s office the following day. Plath described the
conversation as follows:
Mike Gempler called me on the telephone at home and
said that there was somebody from Washington, D.C.,
with the AFL–CIO, and some Teamster organizers
from there as well, which would be marching from the
train station to our packing line office tomorrow some-
time. . . . He just said these were high-ranking officials,
and there’d be a lot of people who would be with this
group, and that was about it.
On the morning of August 12, Plath instructed the hu-
man resources manager, Alex Martinez, to videotape the
rally. Plath testified that his instructions were based on
“concern[s] about employee safety and their vehicles . . .
and we have kind of sophisticated packing equipment,
and I just wanted all of this preserved on tape if there
was any damage which was going to take place.” Plath
added that violence and trespassing were also concerns.
On the afternoon of August 12, a group of about 50–60
people met at the Union’s office at the local train station.
By the time the marchers reached the Respondent’s of-
fice, there were approximately 100 participants, includ-
ing Richard Trumka, secretary-treasurer of the AFL–
CIO, and a significant number of the Respondent’s em-
ployees. The rally was entirely peaceful. Martinez
videotaped the demonstration for approximately 20 min-
utes.
B. Analysis
The applicable principles are well established. Absent
proper justification, an employer’s videotaping of em-
ployees engaged in protected activities violates Section
8(a)(1) because “it has a tendency to intimidate.” F. W.
Woolworth, 310 NLRB 1197 (1993). An employer must
“provide a solid justification for its resort to anticipatory
[videotaping].” NLRB v. Colonial Haven Nursing Home,
542 F.2d 691, 701 (7th Cir. 1976). The mere belief that
“something ‘might’ happen does not justify [videotaping]
when balanced against the tendency of that conduct to
interfere with the employees’ right to engage in con-
certed activity.” Flambeau Plastics Corp., 167 NLRB
735, 743 (1967), enfd. 401 F.2d 128, 136 (7th Cir. 1968),
cert. denied 393 U.S. 1019 (1969).
In the instant case, the issue is whether the information
Plath received from Gempler provided “solid justifica-
tion” for Plath’s decision to videotape the rally. The
judge made the following findings about that conversa-
tion:
• Plath could not determine much from what
Gempler had said. He did discern that it was
going to be a Teamster operation.
• [T]he information which was relayed to Plath
was minimal and came only the night before.
• All [Plath] had heard was that a lot of people
would be marching on his plant.
• Plath was “mostly in the dark.”
This falls far short of the required showing. It is no
answer to say, as the majority does, that Plath was con-
cerned about safety and trespassing issues. Providing a
“solid justification” requires more than simply suspecting
that unprotected activity might occur.6 The employer
must “demonstrate that it had a reasonable basis to have
anticipated misconduct by the employees.” National
Steel & Shipbuilding Co., 324 NLRB 499 (1997), enfd.
156 F.3d 1268 (D.C. Cir. 1998). Nothing that Gempler
said would support a finding that Plath had a reasonable
basis for anticipating misconduct during the rally. Sig-
nificantly, there is no evidence of Union or employee
misconduct on prior occasions.
A comparison of two Board cases is instructive. In
Saia Motor Freight Line, 333 NLRB 784 (2001), the
Board found that the employer established proper justifi-
cation for photographing employees who were handbill-
ing on the employer’s premises. The evidence showed
that the handbillers impeded traffic entering the em-
ployer’s facility, raising the possibility of vehicular colli-
sions and potential negligence liability for the employer.
Significantly, the employer did not engage in anticipa-
tory photographing. Rather, the employer resorted to
photographing only when it became dissatisfied with the
efforts of the police to minimize traffic congestion.
By contrast, in Robert Orr-Sysco Food Services, 334
NLRB 977 (2001), the Board found that the employer
failed to establish proper justification for videotaping

6 The Respondent’s answering brief essentially concedes that Plath
acted on nothing more than sheer suspicion: “Because Plath did not
know what the demonstration would entail, he wanted to be prepared in
the event that it was violent, involved trespassing, or caused damage to
employee and/or Company property.”
WASHINGTON FRUIT & PRODUCE CO. 1227
employees who were handbilling. The Board distin-
guished Saia on the grounds that the handbilling oc-
curred on public, not private, property, and that the em-
ployer failed to show that it began videotaping only after
becoming dissatisfied with the police response.
The instant case is closer to Robert Orr, supra, than to
Saia, supra. Here, as in Robert Orr, the protected activ-
ity occurred on public, not private, property. In addition,
here, as in Robert Orr, the Respondent began videotap-
ing as soon as the protected activity commenced and
before any incident occurred.
In sum, the Respondent’s own testimony shows that it
decided to videotape the Union’s rally based on the
“mere belief that something might happen.” National
Steel & Shipbuilding Co., supra. This is precisely what
the Act forbids. Accordingly, the Respondent’s surveil-
lance of the union rally violated Section 8(a)(1) of the
Act.
IV. THE UNION’S MERITORIOUS EXCELSIOR OBJECTION
A. Factual Background
On December 2, the Respondent timely submitted the
Excelsior list. On December 16, the Union informed the
Region that 12 of the individuals on the Excelsior list did
not reside at the addresses specified. That same day, the
Region requested that the Respondent correct the ad-
dresses. However, the Respondent did not provide the
corrected addresses until 20 days later, January 5, 1998,
which was just 3 days before the election.
In the meantime, the Union discovered additional in-
accurate addresses. Specifically, on December 18, the
Union informed the Region that addresses for 87 indi-
viduals on the Excelsior list were incorrect, and that,
despite its efforts, the Union had not found correct ad-
dresses for 28 of the 87 individuals.7 However, the Re-
gion never conveyed this information to the Respondent.
B. Analysis
“It is extremely important that the information in the
Excelsior list be not only timely but complete and accu-
rate so that the union may have access to all eligible vot-
ers.” Mod Interiors, 324 NLRB 164 (1997). The Excel-
sior rule is intended “to achieve important statutory goals
by ensuring that all employees are fully informed about
the arguments concerning representation and can freely
and fully exercise their Section 7 rights.” Id.
In Alcohol & Drug Dependency Services, 326 NLRB
519 (1998), and in K.T.I., Inc., 330 NLRB 1293 (2000),

7 The record does not make clear whether some or all of the original
12 incorrect addresses were included in the remaining 28 incorrect
addresses. This issue should be resolved against the Union, the party
with the burden of proof. Thus, under this approach, the total number
of incorrect addresses is 28.
the Board sustained Excelsior objections due to errors by
the Regional Offices. In Alcohol & Drug Dependency,
supra, the union did not timely receive the Excelsior list
because (1) the Region provided the employer with the
wrong due date; and (2) the Region, once it received the
list, did not immediately mail it to the union. 326 NLRB
at 519. In K.T.I., supra, the union complained to the Re-
gion at least a week before the election that addresses on
the Excelsior list were incorrect, but the Region delayed
contacting the employer about the list’s accuracy until
the day before the election. The Board specifically held
that when a union presents such a complaint, “the Region
is obligated to promptly contact the Employer. . . . This
the Region failed to do.” 330 NLRB 1293 fn. 1.
In Alcohol & Drug Dependency, supra, and again in
K.T.I., supra, the Board identified “the relevant inquiry”
as “whether the delay—however caused—interfered with
the purpose behind the Excelsior requirements of provid-
ing employees with a full opportunity to be informed of
the arguments concerning representation, so that they can
fully and freely exercise their Section 7 rights.” Alcohol
& Drug Dependency, 326 NLRB at 520; K.T.I., 330
NLRB 1293 fn. 2. In both cases, the Board concluded
that the delays caused by the Regional Offices interfered
with this purpose and, consequently, that the elections
had to be set aside.
In the instant case, there were substantial delays attrib-
utable to both the Respondent and the Region during the
period between the initial submission of the Excelsior list
on December 2 and the holding of the election on Janu-
ary 8, 1998. First, the Respondent failed to respond for
almost 3 weeks to information it received from the Re-
gion on December 16.8 This failure resulted in a delay in
the Union’s receipt of correct addresses for 12 individu-
als on the Excelsior list until just 3 days before the elec-
tion. In addition, the Region failed to convey to the Re-
spondent the information it received from the Union on
December 18. This failure resulted in the Union’s never
receiving correct addresses for 16 other individuals on
the Excelsior list. Thus, during virtually the entire 5-
week campaign period, the Union lacked correct ad-
dresses for 28 employees on the Excelsior list, and the
votes of these employees could have affected the election
outcome.9

8 Women in Crisis Counseling, 312 NLRB 589 (1993), relied on
heavily by the majority, is plainly distinguishable. In that case, the
employer submitted corrected addresses on the same day that the Re-
gion informed the employer of the problem. In the instant case, the
Respondent waited almost 3 weeks to provide the corrected addresses.
As the judge correctly concluded, the Respondent “did not give the task
the professional attention that it deserved.”
9 The tally of ballots was 121 for and 161 against the Union, with 8
nondeterminative challenged ballots. Assuming that the challenged
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1228
In sum, the combination of delays by the Respondent
and the Region interfered with the purpose behind the
Excelsior rule of ensuring that all employees are fully
informed about the arguments concerning representation.
Therefore, the Union’s Excelsior objection should be
sustained and the election set aside.10
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT tell you that you cannot engage in activ-
ity on behalf of International Brotherhood of Teamsters,
AFL–CIO, d/b/a Teamsters United for Change or any
other union on company property.
WE WILL NOT threaten you with loss of your jobs if you
seek union representation.
WE WILL NOT coercively interrogate you about your un-
ion sympathies.
WE WILL NOT interfere with your free exercise of your
Section 7 rights by telling you that those who wear ap-
parel with a prounion message are “cutting your own
throats” or are “putting your heads in a noose,” or any
other similar remark.
WE WILL NOT order you to wear apparel with a pro-
company message.
WE WILL NOT issue warnings to you because you
choose to display union placards on your personal vehi-
cles.
WE WILL NOT issue or enhance warnings to you be-
cause you are engaging in protected union activity.

voters were eligible and voted for the Union, a change in 17 votes
would have altered the election’s outcome.
10 In addition to sustaining the Excelsior objection, the judge rec-
ommended setting aside the election based on one unfair labor practice
occurring within the critical period (the December 1997 incident in
which supervisor Bautista ordered employees to wear antiunion ap-
parel). Given that the Excelsior objection alone warrants setting aside
the election, it is unnecessary to rely on this additional ground.
WE WILL NOT intimidate you by falsely accusing you of
holding union meetings during work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the warnings given to Indalecio Mata
and Ana Guzman on August 6, 1997.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warnings given to Indalecio Mata and Ana Guzman,
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the warnings will
not be used against them in any way.
WASHINGTON FRUIT AND PRODUCE COMPANY
Irene Hartzell Botero and Miriam C. Delgado, Esqs., for the
General Counsel.
Robert K. Carrol, Daniel A. Croley, and Natalie A. Pierce (Lit-
tler Mendelson), of San Francisco, California, for Respon-
dent.
Robert H. Gibbs (with Heather Houston on brief) (Gibbs Hous-
ton Pauw), of Seattle, Washington, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. Maitre d’.
This case was tried before me in Yakima, Washington, over 53
hearing days during 1998 and 1999, on an amended consoli-
dated complaint issued by the Regional Director for Region 19
of the National Labor Relations Board (the Board) on October
9, 1998. The complaint is based upon 11 unfair labor practice
charges filed on various dates by the International Brotherhood
of Teamsters, AFL–CIO, d/b/a Teamsters United for Change
(the Union), from July 25, 1997,1 through February 2, 1998,
against Washington Fruit and Produce Company (Respondent).
The complaint has been further consolidated with objections to
a representation election filed by the Union on January 15,
1998, concerning an NLRB representation election conducted
on January 8, 1998. Both the complaint and the objections tend
to track one another, but they are not congruent. Moreover,
some of the complaint allegations have been dismissed on the
record. Insofar as the complaint is concerned, it alleges that
Respondent has committed various violations of Section
8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act). The complaint also alleges that Respondent’s unfair labor
practices dissipated the Union’s majority status and Respondent
thereby avoided its obligation to recognize and bargain with the
Union after the Union demanded recognition. In addition, the
General Counsel asserts that the unfair labor practices commit-
ted by Respondent are so egregious that a fair second election
cannot be held and that a bargaining order is the only appropri-
ate remedy. Respondent denies the essential portions of the
complaint, and specifically objects to the bargaining order as an
appropriate remedy. During the course of the hearing, I permit-

1 All dates are 1997 unless otherwise noted.
WASHINGTON FRUIT & PRODUCE CO. 1229
ted the General Counsel to amend the complaint to allege that
one of Respondent’s attorneys violated Section 8(a)(1) of the
Act while interviewing a witness. Respondent also denies this
allegation.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Washington State corporation headquartered
in Yakima and having its office and main plant in that city as
well as a cherry packing operation in the adjoining town of
Union Gap. At those locations it is engaged in the business of
nonretail packing and sale of fruit, including apples, pears, and
cherries. From those locations it annually ships and sells fruit
processed within the State to customers outside the State and to
customers or otherwise engaged in interstate commerce, valued
in excess of $50,000. Accordingly it admits that it is, and has
been, an employer within the meaning of Section 2(2), (6), and
(7) of the Act. In addition, it admitted at the hearing that the
Union is a labor organization within meaning of Section 2(5) of
the Act.
II. INTRODUCTION AND BACKGROUND
Respondent’s main office is located at 402 North 1st Avenue
in Yakima. Immediately across the street, on the west side, is
its main packing plant. They are located in an industrial area
near downtown Yakima. The operation, together with its ap-
purtenant support facilities, sprawls over at least two city
blocks. In fact, the buildings of three other fruit packing com-
panies are interspersed with those of Respondent. The Charg-
ing Party’s John August referred to the area as “fruit row,” but
the charm that sobriquet might suggest is entirely missing. It is
a relatively busy nonretail commercial sector of Yakima’s
downtown, filled with warehouses. For an overview see the
aerial photograph (GC Exh. 23).
Respondent principally packs apples, but it also packs pears
at one end of the warehouse. The cherries are packed at Union
Gap. Apple packing proceeds on a near year-round basis; pears
are packed much of the time, but the quantity is far less and the
pear season may be shorter. Cherries are packed only in
springtime. Respondent also has its own orchards and has an
interest in a local food processing plant. It is a corporation
which is principally owned by two families, the Plath family
and the Hanses family.
Rick Plath is the president of the corporation and chief ex-
ecutive officer. During the 6 or 8 months preceding the Janu-
ary 8, 1998 NLRB election, Tommy Hanses was the warehouse
manager. He reported directly to Rick Plath and was in charge
of the packing operation. Reporting to Tommy Hanses were
Day-Shift Manager Mel Sager and Night-Shift Supervisor Eric
Hanses. Each of those had three supervisors reporting to him
on his shift. These subordinate supervisors were in charge of
the sorters, packers, and baggers. Also reporting to Tommy
Hanses were the foremen from four other departments, the pear
line, and the refrigeration, receiving, and shipping departments.
Respondent employs approximately 300 production and
maintenance employees. The number varies depending on the
season. During the period in question, July 1997 through Janu-
ary 8, 1998, the production and maintenance staff ranged from
293 to 311 employees. Apple packing takes place on two
shifts, a day shift and a night shift which ends about 1 a.m.
Teamsters International Union Organizer Lorene Scheer tes-
tified that the Union began organizing apple packers in the
spring of 1996. The evidence shows that the Union’s organiz-
ing efforts were originally directed at Stemilt Growers in We-
natchee, an apple producing city about 110-road miles north of
Yakima. Indeed, the Union sought to organize fruit packing
sheds in both Yakima and Wenatchee. Much of the Union’s
effort was aimed at Stemilt. Scheer was involved in that effort
as well. The Union established an office in Yakima at some
point, and the organizers’ first signatures were not obtained
from Respondent’s employees until March 21, 1997.
It appears from an amalgamation of testimony from various
union officials, as well as lead employee organizer, Ana
Guzman, that it was the Union’s intention to obtain recognition
from the targeted growers without invoking the representation
election procedures available to it from the Board. The plan
appears to have been to obtain as many signatures as they could
on petition forms having spaces for four signees. Following the
acquisition of a significant number of signatures, the Union
intended to demand recognition. As will be seen, that occurred
on August 12 during what can only be described as street thea-
ter. Several dignitaries from the Teamsters International Union
and the AFL–CIO came to Yakima and participated. When
neither Stemilt nor Respondent would grant voluntary recogni-
tion, the Union eventually chose to file election petitions. The
petitions for both Respondent and Stemilt were filed on No-
vember 20. The Acting Regional Director approved a Stipu-
lated Election Agreement with Respondent on November 26,
setting the election for January 8, 1998.
Many of Respondent’s employees speak only Spanish, al-
though many others are bilingual to varying degrees. Some are
perfectly fluent in English and Spanish; some speak no English
at all; and, of course, there are some who speak only English.
An official interpreter was required for much of the testimony.
When witnesses described conversations in Spanish, they were
directed to testify in Spanish. Where they described conversa-
tions or statements made by persons speaking English, they
were directed to use the English words and sentences which
they could remember. If they were unable to say the English
words, they were permitted to describe the conversation in
Spanish as best they understood. Moreover, some of the Span-
ish-speaking witnesses were not literate in Spanish. And, there
are at least two English-speaking employees who are not liter-
ate in English.
This circumstance has created opportunities for misunder-
standing at several levels: First, in the plant or other locations;
second, during the organizing drive; third, during the NLRB
investigation and, fourth, during the testimony. Occasionally,
there were problems with NLRB affidavits. It was the practice
of the bilingual Board agent to interview Spanish-speaking
witnesses in Spanish, but to write the affidavit in English
(without any Spanish draft being created), which the affiant
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1230
then signed. Later, when the witness testified, the English affi-
davit was translated back to Spanish and then turned over to
Respondent’s counsel pursuant to the Jencks2 rule. This led not
only to awkwardness, but to severe anomalies on at least two
occasions. Fortunately, most translation issues were amicably
resolved by Attorneys Botero and Delgado for the General
Counsel and Carrol for Respondent, together with court transla-
tor José Chávez, all of whom are perfectly fluent in Spanish.3
Even so, the scrivening technique used by the investigator
tended to inhibit cross-examination because Respondent had no
opportunity to review a witness’s original words as adopted by
signature. Respondent’s counsel could only review a Spanish
document which had been translated from English, not the
original Spanish, even though the witness spoke to the investi-
gator in Spanish. Original nuance is easily lost when a state-
ment is filtered in that manner.
Initially, the complaint alleged that Respondent’s unfair la-
bor practices commenced about May 30. Although I dismissed
on the record that allegation, paragraph 7(a) of the complaint,
for evidentiary insufficiency the incident introduced one of the
major employee organizers involved in the case, Ana Guzman.4
Guzman is alleged to have been unlawfully discharged on No-
vember 14. In addition to her discharge, other allegations relat-
ing to hire and tenure of employment concerned an alleged
unlawful demotion of Pam Smith on September 9, and the al-
leged unlawful refusal to rehire Maria Abundiz on December 4.
In addition, Respondent is alleged to have issued warnings to
some of its employees in reprisal for their having engaged in
union activity. In addition, Respondent is alleged to have en-
gaged in a variety of conduct designed to deter employees from
obtaining union representation. In general, all of these inci-
dents will be dealt with in a chronological manner. There are,
however, a few issues which are replicated throughout the pe-
riod. The first, and most repeated, is the issue of how Respon-
dent’s no-solicitation rule was enforced. Indeed, enforcement
of that rule coincides with the first incident under scrutiny.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The No-Solicitation Rule
As of March 1997, Respondent’s rule regarding the solicita-
tion and distribution of literature at the plant was set forth in its
newly revised handbook for employees. The language quoted
below is taken from General Counsel’s Exhibit 35, a posted
notice consistent with the handbook:
Solicitation and Distribution of Literature
Approaching fellow employees in the work place re-
garding activities, organizations or causes, regardless of
how worthwhile, important or benevolent, can create un-
necessary apprehension and pressures for fellow employ-

2 See Board Rule 102.118(b)(1).
3 Respondent’s attorney, Pierce, is also fluent in Spanish, but was
not usually present during the hearing, being engaged in trial prepara-
tion for cocounsel.
4 I also dismissed on the record complaint par. 12 for failure to prove
conduct which violates the Act, relating to a preelection raffle. I per-
mitted, however, a closely connected election objection to remain in the
case, as it may have interfered with in the outcome of the election.
ees. Such conduct is inappropriate and unnecessary. The
Company has established rules applicable to all employees
which govern solicitation or distribution of written mate-
rial during working time and entry onto the premises and
work areas. All employees are expected to comply strictly
with these Company rules.
1. No employee shall solicit or promote support for
any cause or organization during his or her working time
or during the working time of the employee or employees
at whom such activity is directed.
2. No employee shall distribute or circulate any written
or printed material in work areas at any time, or during his
or her working time or during the working time of the em-
ployee or employees at whom such activity is directed.
3. [omitted]
As used in this policy, “working time” includes all
time for which an employee is paid and/or is scheduled to
be performing services for the Company; it does not in-
clude break periods, meal periods, or periods in which an
employee is not, and is not scheduled to be, performing
services or work for the Company.
It should be observed that the no solicitation rule is some-
what more expansive then rules of this sort usually are. Not
only does it prohibit “solicitation,” it also prohibits “promo-
tion.” Despite that addition, the General Counsel has not spe-
cifically attacked that language in the complaint. Nonetheless,
the use of the word “promotion” creates an ambiguity which is
unfortunate. Instead, the General Counsel concedes that the
language is nondiscriminatory on its face.
In any event, the language bars solicitation of employees
who are engaged in work. The obvious intent of the rule is to
prohibit employees from interfering with their own work and
the work of others. It does not bar, on its face, employees from
talking to one another, so long as such conversations do not
interfere with work. The evidence is quite clear that Respon-
dent’s employees, particularly those on the packing lines, speak
to each other frequently about all sorts of things and have never
been disciplined for doing so. The work performed on these
lines is rote and repetitive. The employees perform it automati-
cally and with little thought. In that circumstance they can
easily speak to each other about any subject they wish without
any deleterious effect on their production. With that back-
ground in mind, I proceed to the events beginning June 30.
B. June 30 and July 1
1. Alfonso Barela
On and off from late 1996, a small group of employees had
been involved in union organizing. There had been occasional
protests about the treatment of individual workers who had run
afoul of one rule or another. One of the themes of the organiz-
ing drive was to ask that Respondent treat the employees with
respect, at least insofar as the employees perceived it. In June,
cherries were being packed at the Union Gap plant. That eve-
ning, at the scheduled “lunch” hour for the night-shift cherry
packers, a group of day-shift employees came to the Union Gap
parking lot and set up a picnic table festooned with union ban-
ners. They styled the lunch, to which the night-shift workers
WASHINGTON FRUIT & PRODUCE CO. 1231
were invited, as a “Table of Respect.” Although that location is
about 20 yards inside company property, it is still about 100
yards from the plant entrance. Some cherry packers did come
outside and visit the table for a snack. The individuals at the
table also sought to distribute some union fliers to anyone who
would take them.
Night-Shift Supervisor Eric Hanses observed the table’s lo-
cation and determined that it constituted a likely trespass. He
told the employees that they were trespassing and that he was
going to call the police, saying he hoped that none of them
would end up in jail.5 He telephoned Warehouse Manager
Tommy Hanses and also called the city police. The police
arrived first, passed by the picnic table, and went to the en-
trance of the plant. While Eric Hanses and the police officer
were speaking together near the front door, Tommy Hanses
arrived in his personal vehicle. He observed the group at the
table as he passed by. He stopped his car about halfway be-
tween the table and the front door, about 50 yards away from
each. He was eventually joined by Eric Hanses and the police
officer. While there is some divergence in testimony, at some
point Alfonso Barela went to them and had a conversation of
some type. Barela, though Spanish-speaking, speaks English
well enough to serve as an ad hoc, but not word-for-word,
translator. At the time, Barela worked as a junior plant me-
chanic whose duties included setting up the apple lines in the
mornings. That evening he was one of the employees at the
Table of Respect and for the first time he had worn a union
button. Some employees say that he served as a translator that
night. More likely he simply told the employees his perception
of what was happening, including his version of his conversa-
tion with Tommy Hanses. Tommy Hanses recalls that Barela
simply walked up to them while he was talking to the police
officer and asked what was going on. When Tommy told him
nothing was going on, Barela returned to the table.
It is undisputed that Tommy Hanses concluded upon his ar-
rival that nothing had occurred to warrant police intervention
and so advised the officer. The officer left, apparently not
speaking to any employee, and the incident, if it can be de-
scribed that way, ended.
The following morning, July 1, at about 6:50 a.m., Tommy
Hanses observed Barela handing an employee named Martin a
colored flyer of the type which had been distributed the night
before at Union Gap. Barela’s normal start time was 6:30 a.m.,
about half an hour before packing actually begins. Barela’s
duties include making certain that the conveyors are operating
properly. As a result, he is on duty before the production em-
ployees arrive.
Barela’s testimony about what happened next is virtually
nonexistent. His recollection was so poor that counsel for the
General Counsel was obligated to use his NLRB affidavit as
past recollection recorded. Moreover, he was confused, believ-
ing that the affidavit had been taken by a union official, rather
than NLRB investigator Hurtado.
Barela inaccurately said in the affidavit that his shift began at
7 a.m., on the morning in question and that Tommy Hanses
gave him a warning for the conduct and then angrily directed

5 This remark is not alleged as a violation of the Act.
him to clean up a dirty floor underneath the dump tank. The
complaint alleges that both the warning and the direction to
clean that area were unlawful, together with a contention that
Tommy Hanses closely observed him at his work thereafter.
Hanses readily agrees that he gave Barela the warning. It is
in evidence as General Counsel’s Exhibit 36. In that exhibit,
Hanses recites that the incident occurred at 6:50 a.m. that day.
He wrote: “Alfonso was observed soliciting union literature
during work hours. Washington Fruit has a strict no solicitation
policy which prohibits this activity during work hours. Any
further solicitation during work hours will result in termina-
tion.”
Barela is unable to say that he was actually off duty at the
time that he distributed the flyer to Martin. Moreover, it ap-
peared to me that in his affidavit Barela deliberately shifted his
start time from 6:30 to 7 a.m. That would insinuate that the
warning was for conduct occurring prior to the start of his shift,
even though he knew the incident actually occurred during his
own worktime. On that basis, I am unable to conclude that the
warning was given inappropriately.
However, the warning demonstrates a problem which Re-
spondent has throughout this proceeding. Barela was actually
guilty of distributing material, rather than soliciting. Tommy
Hanses’ written description asserts that the conduct was solici-
tation. He made no distinction between the two types of con-
duct.6
While Tommy Hanses made an error here, that error is not
fatal insofar as the Act is concerned. Rather clearly, the pur-
pose of the rule is to prohibit employees from stopping their
own work or the work of others to participate in nonwork-
related business which should be conducted during nonwork
periods. Clearly, Barela’s stopping work to hand the flyer to
another worker violated the rule against distribution. Tommy
Hanses’ misanalysis does not change that fact.
The General Counsel next asserts that what Tommy Hanses
did immediately thereafter also violated the Act. Hanses says
that as he was dealing with Barela, advising him that he had
broken the rule, he realized that if Barela had time to distribute
material, he might not have enough work to do. He asked
Barela about his workload and Barela replied that he was basi-
cally caught up, although he had a bearing to replace. Tommy
Hanses then told Barela that he wanted him to clean the area
under the dump tank.
Although Barela worked under the direct supervision of Mel
Sager, it was not unusual for Tommy Hanses to give directions
such as he gave here. Moreover, even though Barela was a
mechanic, cleanup duty was not unknown to him. Two weeks
earlier he had been given a similar job, to clean the dump pit.
That is a far more onerous job than cleaning under the tank.
The area under the tank is a smooth flat floor painted with ep-
oxy. The bottom of the tank is about 4 feet above the floor. It
is relatively easy to clean that area with a scrub broom although
one must crouch to reach all the way underneath. In contrast,
the earlier job of pit cleaning required the employee to work
below ground level in knee deep water in order to clear a drain.

6 Tommy Hanses: “—you’re distributing—you’re soliciting and you
can’t do that.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1232
In fact, Barela didn’t do very good job of cleaning the pit and
he received a written warning from Mel Sager on June 18.
However, he successfully cleaned the flat floor on July 1.
Barela estimates that he took somewhere between 20 to 45
minutes to complete that task over a 3-hour period, interrupted
by attention to other matters.
The General Counsel observes that this instruction came
from Tommy Hanses rather than Barela’s direct supervisor,
Mel Sager. Hanses explained that this was not unusual as he
has given similar instructions over the years to just about any-
body who had no work to perform. I find this explanation en-
tirely credible and consistent with Tommy Hanses’s hands on
approach to supervision.
I do not find this incident to have been coercive of any Sec-
tion 7 right.7 Barela had clearly left work to distribute the flyer,
had been told not do it, had been found to have some time on
his hands and was directed to perform cleanup work, a type of
task (floor swamping) which was not particularly unusual.
Even Barela did not claim that the work was onerous. At the
time he was an agile 25-year-old used to working in odd, un-
comfortable, positions. These allegations will be dismissed.
In addition, the General Counsel contends that Tommy
Hanses unduly scrutinized Barela after this incident. Barela
was unable to give any valid testimony about the incident, as-
serting a lack of memory. In his pretrial affidavit, utilized as
past recollection recorded, he said that Tommy Hanses ob-
served him about 20 times after he distributed the flyer and
performed the cleanup task. On the witness stand he admitted
that he was only guessing and that he had no independent recol-
lection. Given his lack of memory and his tendency to exag-
gerate and shade, I am unable find his testimony or the account
found in his affidavit to be sufficient to make a finding.
Tommy Hanses denied watching him excessively although he
did agree that he checked to make certain that Barela cleaned
the floor.
I do not find the testimony presented here to be of sufficient
weight to support the allegation in the complaint. It will be
dismissed.
2. Christina Bautista
Christina Bautista was the day-shift apple packing line su-
pervisor, a first-line supervisor. She had charge of anywhere
between 20 and 70 apple packers, depending on the time of
year. She was also in charge of the cold room. She reported to
Mel Sager.
On July 1, Bautista approached two cold room workers,
Rogelio Andrade and Ramiro Arteaga, who were standing in
front of the cold room putting on their heavy jackets. Both of
them testified that Bautista approached them and asked if they
were putting on their “bulletproof vests.” They asked what she
was talking about and she explained, incorrectly, that the police
had run some employees off from where they had been holding

7 Sec. 7 of the Act states: “Employees shall have the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall also have the right to
refrain from any or all such activities [exception not pertinent here].
a meeting the night before. He remembers her saying that no
one could make meetings on private property and if they did so,
the Company would call the police and would remove them.
Andrade had attended the Union Gap Table of Respect meet-
ing, while Arteaga had not. Arteaga replied that it was her bad
luck that he had not been at the meeting because he would have
liked to have been there. He says that she angrily asked him if
he denied being in the Union. He replied he did not deny it,
that he was in the Union. He says she asked him if he had no
shame. He went on to describe her as saying that “employees
should take more care with their jobs and should not be making
meetings with the Union because outside there were many peo-
ple who needed a job, and at any moment, they could take our
jobs.”
Andrade’s testimony is quite similar. When Bautista misde-
scribed what had occurred at Union Gap, Andrade attempted to
set her straight. She said that the police had taken the employ-
ees out of their union activities at Union Gap. When Andrade
told her that wasn’t true, she replied that “she knew.” She went
on to say that employees had jobs, to be careful about that job,
not to get into problems. Andrade attempted to explain then
that their organizing activities were protected by law, but
Bautista scoffed intimating that they knew nothing about the
law. Andrade says that she went on to say that he and Arteaga
were putting their jobs at risk. He says she said that other peo-
ple were asking for jobs, that he and Arteaga had theirs and
should take care of them. She also said that it was wrong for
the day shift to have gone to Union Gap to be with the night
shift; the day shift had no reason to be there.
Bautista denies these versions and Respondent asserts that
the testimony is inconsistent and should be disbelieved. I note
that Andrade says that Bautista had actually spoken to Arteaga
first, most of which he did not hear, and he had to ask her to
repeat what she had said. Clearly, Bautista had the opportunity
to say somewhat different things to each of them. Rather than
demonstrating inconsistency, their testimony in that circum-
stance is mutually corroborative. Moreover, Bautista denied on
the stand that she even knew Arteaga, but that testimony is
belied by her prehearing NLRB affidavit in which she admits
she supervised him.
Bautista’s conduct here clearly violated Section 8(a)(1).
First, she suggested that employees could not engage in union
activity on company property. Second, she said that day-shift
employees should not be supporting night-shift employees.
Thirdly, she said that if they did so they would be putting their
jobs at risk. These remarks are clearly coercive. They suggest
that union activity equates with loss of one’s job. Therefore,
such a remark is an indirect threat of job loss. It also had the
effect of interrogating Arteaga about his union sympathies. Her
approach to him forced him to say that he had not been at Un-
ion Gap. Hearing that, she asked him if he denied being in the
Union. He replied that he did not deny it.
Rather clearly, Bautista aimed to determine what Arteaga’s
union sympathies were. That was none of her business.
Arteaga had done nothing to warrant such an inquiry. She be-
gan the conversation and through a ploy obtained his admis-
sion. He revealed information that she did not know. This
WASHINGTON FRUIT & PRODUCE CO. 1233
allowed her to tell him that she thought the Union would lead to
the loss of his job. That interrogation violates Section 8(a)(1).
I do not regard her banter about the bulletproof vests as coer-
cive. It was simply a joke referring to the fact that the police
had been called to Union Gap the night before. It was hardly a
threat, but was instead a misguided attempt to make fun of the
Union. It did however provide her with an opening to express
her views on unionization.
C. Introducing Ana Guzman; July 29 Encounter with
Mel Sager
Ana Guzman has previously been referenced as being the
principal employee organizer. She was originally hired on
January 3, 1995, and worked the night shift as an apple packer.
She was discharged on November 12 and her discharge is al-
leged to be in violation of Section 8(a)(3). Her union activity
was reasonably well known to Respondent’s management. She
began wearing union shirts and other paraphernalia in the
spring and was a principal figure during the solicitation of sig-
natures and at union meetings held at the Union’s office at track
29.8
As a night-shift employee, Guzman’s duties were under the
immediate supervision of Guillermina Delgado, the line super-
visor, and Eric Hanses, the night-shift packing foreman. She
did not work for Mel Sager or Christina Bautista, who had
charge of the day shift.
Shortly before noon on July 29, Guzman entered the back
door of the packing plant carrying approximately 20 copies of a
free Spanish newspaper called “Viva.” There is some dis-
agreement regarding what occurred next. She says she stood in
the walkway between the machines and the center wall for a
few minutes awaiting the noon shutdown. She knew she could
not distribute material to employees while the lines were run-
ning and was waiting to go to the lunchroom which was down
the wall only a few feet away. Nonetheless, she agrees that she
gave out approximately 8 to 10 copies of the paper before Sager
came to her. Sager says that he observed her from his position
on the catwalk. He says at the time he first observed her, the
lines were still running and that he saw her hand a newspaper to
another employee. Shortly thereafter, he shut down the lines
for the noon break. Within moments, he came down the cat-
walk to speak to her. He spoke to Guzman in English although
her English is not very good. She speaks halting English and
her comprehension is limited to very basic phraseology.
It is not clear on the record whether Sager knew anything
about what she was distributing, except that it may have been
recognizable as the Spanish-language newspaper. There is no
evidence that he knew or was aware of the reason Guzman was
distributing it. It certainly was not readily ascertainable that the
newspaper contained an article regarding the Union’s organiz-
ing campaign.
He admits he told her that she couldn’t distribute such things
in the plant and that she was to “take it outside.” She began to
argue with him saying that it was her right to distribute the

8 Track 29 is a small shopping and business center about 3 blocks
from Respondent’s main office. Businesses in that center are located in
remodeled railroad boxcars.
paper. Guzman testified that he told her that if she did not
cease he would call the police. He denies that he said any such
thing. In his version, she seemed to be daring him to call the
police. Within moments, Bautista arrived to try to assist their
communications. They argued for a few moments about
whether Guzman was doing anything improper. The discussion
ended when Guzman walked into the lunchroom. While there,
she distributed the remainder of her papers.
Counsel for the General Counsel contends that Sager im-
properly prohibited Guzman from distributing the papers be-
cause in her view the distribution did not begin until after the
lines had been shut down. In addition, she contends that
Sager’s reference to calling the police constituted an illegal
threat.
In my view, the factual analysis proposed by the General
Counsel is incorrect. Guzman admits that she entered the plant
2 or 3 minutes before noon and that the lines were still running.
Clearly the lines had not yet been shut down. She also admits
that she stood in the walkway holding the newspapers in her
hand. The walkway is adjacent to one of the bagging lines and
there were people working in that area. Clearly she was in a
working area while work was being performed, poised to dis-
tribute. Sager says he observed her actually hand a paper to an
employee before he shut the lines down. She also admits that
she handed out 8 to 10 papers before Sager came down to her.
Since it only took Sager a few seconds to come down from the
catwalk, the obvious question is: how fast could Guzman hand
out 8 to 10 papers before he got there? It seems likely to me
that she had handed out some papers before Sager ever saw her.
She could not have handed out 8 to 10 papers in the short time
that it took for him to come off the catwalk and walk over to
her. Accordingly, I conclude that she was in a work area, the
walkway, for the purpose of distributing newspapers. I further
conclude that she distributed, according to her, 8 to 10 while
the lines were still running.
In that situation, I am obligated to conclude that she was in
breach of the company rule against distribution. That rule pro-
hibits the distribution of printed material in work areas at any
time. Clearly Guzman had failed to observe the rule. Sager
was within his rights to point that out to her. Moreover, I’m not
persuaded that Sager said anything about calling the police. All
he told her to do was to “take it outside.” There was certainly
no reason for him to conclude that any crime had been commit-
ted, for Guzman had committed no crime and had not been
accused of doing so. All Sager was interested in was getting
the newspapers outside of his work area. When she took the
remaining newspapers to the lunchroom, she satisfied his
wishes, for he did nothing further about the matter.
To the extent that there is evidence that someone spoke of
calling the police, I believe it was Guzman. She was aware that
the police had come to the Union Gap demonstration and, I
think, was hoping for similar publicity. Guzman, if nothing
else, is relentless in her pursuit of seeking advantage on the
public stage.9 She would have easily recognized an opportunity

9 Guzman has taken the limelight on numerous occasions on behalf
of the Union. She has appeared on Spanish television and radio, has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1234
to create publicity had she been able to induce Sager to have
her arrested. Accordingly, I credit Sager’s denial that he
threatened to call the police.
It is true that Sager told Guzman to take the newspapers out-
side. In a sense that is somewhat ambiguous, and one could
conclude that he was telling her to take them outside the build-
ing. One could also interpret his remark as a direction that she
take the newspapers out of the work area. She seems to have so
interpreted it, because she did not take them outside the build-
ing, she took them to the lunchroom, which was outside work
area. Given her own interpretation, I conclude that there was
no misunderstanding and that whatever latent ambiguity his
remark may have had was resolved by his inaction after they
parted and he saw her enter the lunchroom. This observation,
too, supports the conclusion that he did not mention calling the
police.
Accordingly, this allegation will be dismissed.
D. August 1; Christina Bautista
1. Remarks to Rosa Garcia and Socorro Barajas
Rosa Garcia and Socorro Barajas are daughter and mother
respectively. They are both packers who work on the day shift
under Bautista’s supervision. Although they are not related,
Bautista affectionately calls Barajas “mother-in-law.”
About August 1, several employees wore union T-shirts to
work. Sometime during the day Garcia and Barajas were work-
ing together on the same table. Behind Garcia, two other em-
ployees, Maria Tellez and Christina Valencia, were working on
another table some distance away. They were wearing pro-
union T-shirts. According to Garcia, Bautista approached
Barajas from behind and gave her a hug, saying, “Look,
mother-in-law. Look at them. . . . Look at the T-shirts they are
wearing.” Barajas asked Bautista what that had to do with
anything, and Bautista replied, “They are cutting their own
throats.”
Bautista denies the conversation occurred, and Barajas did
not testify.
2. Remarks to Sonia Abundiz, Eva Perez, and Antonia
According to Sonia Abundiz, on that same day, three other
packers were working together, Sonia Abundiz, Eva Perez, and
another whose first name was Antonia. Sonia Abundiz does
not know Antonia’s last name. Abundiz and Perez had worn
the union T-shirt that morning. She says that at some point
Bautista, apparently performing her normal rounds, passed by
their station. Abundiz recalls Antonia asking Bautista her opin-
ion about the T-shirts. Bautista replied, “Oh, leave them alone.
They are placing the noose around their neck.” Perez was not
called as a witness and Bautista denies making the remark.
3. Analysis
The General Counsel contends that these remarks violated
Section 8(a)(1) as an unspecified threat of reprisal for engaging
in the union activity of wearing prounion T-shirts. Respondent
opposes such view, essentially asserting that the conduct did
not occur, contending that Bautista’s denial should be credited.

been interviewed by the Spanish press and has taken political trips on
the Union’s behalf which have received extensive publicity.
I do not concur with Respondent’s analysis with respect to
credibility. I credit the testimony of both Garcia and Sonia
Abundiz. Even though the two conversations occurred at dif-
ferent times that day, it appears that the simultaneous wearing
of T-shirts became a conversation subject insofar as Bautista
was concerned. The two incidents are mutually corroborative.
The context of both remarks is, nonetheless, subject to more
than one interpretation. The first is that Bautista was recog-
nizably expressing her personal opinion about the wisdom of
the employees’ union activity. The second is that it was a spe-
cific effort to coerce additional employees from joining the
others in supporting the Union.
Bautista initiated the first conversation, speaking directly to
Barajas and calling her attention to the fact that the other em-
ployees were wearing union T-shirts. When Barajas expressed
unconcern, Bautista added some fuel to the fire by saying that
the T-shirt wearers were in the process of cutting their own
throats. The message to Barajas and to Barajas’ daughter Gar-
cia was that employees who chose not to wear such T-shirts
were less likely to get into trouble. Whether that trouble would
take the form of a reprisal or whether it would take the form of
unfortunate circumstances in the long run was deliberately left
to the listeners’ imagination. In that situation, I am unable to
conclude that it was merely Bautista’s expression of personal
opinion. Nonetheless, it does not amount to a threat of reprisal
as alleged by the General Counsel.
Instead, I apply the rule of El Rancho Market, 235 NLRB
468, 471 (1978). The Board, in determining whether the con-
duct under scrutiny is coercive within the meaning of Section
8(a)(1) looks to see whether the employer’s conduct may rea-
sonably be seen as tending to interfere with the free exercise of
employee rights under the Act. Motive or success is not the
touchstone. Here it is clear to me that in the first conversation
Bautista sought to interfere with Barajas’ and Garcia’s Section
7 right to join those who chose to wear prounion T-shirts. The
second conversation is not quite as clear. The conversation was
not begun by Bautista, but by an unknown person whose first
name is Antonia. As described by Sonia Abundiz, Antonia
called the T-shirts to Bautista’s attention and Bautista re-
sponded that those employees were putting their own necks in a
noose. I find here that it makes no difference who began the
conversation. No matter who started it, Bautista took advan-
tage of that fact in order to convey the same message as before:
that employees were better off not to wear union T-shirts, for if
they did, they were likely to find themselves in some sort of
trouble. Again, that response may reasonably be seen as tend-
ing to undermine the right of employees to engage in the pro-
tected activity of wearing prounion T-shirts. Accordingly, I
find that both remarks violate Section 8(a)(1) of the Act.
E. Late July and Early August; Union Activism
As the General Counsel correctly points out, the Union col-
lected the bulk of its signatures from Respondent’s employees
between March and May. Many of these signatures were solic-
ited through the participation in some fashion of Ana Guzman.
Guzman was involved in a particularly public manner. Indeed,
she became a ubiquitous presence whenever publicity for the
Union’s cause could be obtained. Her efforts were not limited
WASHINGTON FRUIT & PRODUCE CO. 1235
to Respondent, but were aimed at the entire apple industry in
central Washington. On July 23, a week before she sought to
distribute “Viva” in the plant as described above, she was fea-
tured in a front page story and photographed in the local news-
paper, the “Yakima Herald.” (GC Exh. 28.) In that article she
is quoted as accusing Respondent’s supervisors of engaging in
harassment of employees because of their union activities. She
also appeared in stories published by the two Spanish-language
newspapers. She was a frequent guest on a Spanish radio sta-
tion, KDNA. Later she described the organizing drive on the
local Spanish television station, Channel 17 (Hispanavision).
In general, her message was that the employees were engaged
in a just cause, often citing perceived employer mistreatment
and urging the community to support it.
At work her approach was assertive as well. She constantly
wore union apparel, buttons and hats. She was often the bearer
of union flyers. She was perceived by all, management and
employees alike, as the principal employee union leader. Re-
spondent acknowledges being aware of her activity. Not only
did it observe it first hand, but President Rick Plath read about
her in the “Yakima Herald,” as did Eric Hanses. Most of the
Spanish-reading managers also read about her in the Spanish-
language newspapers.
Guzman was often assisted by about 12–15 others. In no
particular order they included Indalecio Mata, Rosio Diaz,
Maria Abundiz, Sonia Abundiz, Maria de Jesus (Chuy)
Andrade, Pam Smith, Marcelino Gonzalez, Rosa Salas, Antonio
Salazar, Rigoberto Flores, Efrain Velasco, Pedro Arguello, and
Judy Byrd (until she left Respondent’s employ in August).
Guzman is a true believer in her cause. She is willing to push
the envelope insofar as union representation is concerned. This
character trait seems to require her to take some risks in pursuit
of her goal.
The Union, as noted previously, had no intention of utilizing
the representation election procedures which the Board admin-
isters. At some point, probably late July, the Union determined
that it would demand recognition with a show of strength in the
streets. It also decided that it would be appropriate for the de-
mand to be made by high-ranking union officials from Wash-
ington, D.C. These were to be representatives from the Team-
sters International Union as well as the organizing department
of the AFL–CIO.
Undoubtedly word of the arrival of such officials, together
with their moral support, energized the employee organizers in
a way that had not been seen before. Their appearance on Au-
gust 12 was preceded by several incidents.
F. August 6 Warning to Indalecio Mata
The 400 block of North First Avenue divides the main office
and the packing plant. The main office is on the east side,
while the packing shed is on the west. There are no curbs
marking the edge of the street nor are there any sidewalks. If
there were, the street would be narrower than it already is.
Both buildings are set off the roadway far enough to allow
some painted angle parking on each side. It is typical of many
industrial streets. In fact, this is the very area where the August
12 demonstration and demand for recognition took place, dis-
cussed infra. Employees generally are asked to park behind the
main warehouse (on its west side) in marked spaces, a practice
which allows adequate parking for office employees and busi-
ness visitors working at or visiting the headquarters office.
According to Respondent, there is a well-known, but unwritten,
rule prohibiting employees from parking on North First Avenue
near the office entrance during the day while the office is open.
Near the south end of the block, some distance from the office
parking area, is a small patch where two or three cars can paral-
lel park.
Because for most employees the night shift began at 4:15
p.m. and the office didn’t close until 5 p.m., there was some
opportunity for persons who didn’t want to park in the back of
the building to seek open places near the front warehouse door,
roughly directly across the street from the main headquarters’
door. This is despite the fact that there are many more spaces
in the back which are at least as convenient to a doorway as the
fewer spaces in the front.
Indalecio Mata is a night-shift sorter. He was hired in 1995
and was under the direct supervision of Sorter Supervisor Kirk
McGarity and Night-Shift Supervisor Eric Hanses. Mata was
an early supporter of the Union and frequently wore union ap-
parel to work. He drove an older bright pink Chevrolet Sprint.
The vehicle is conspicuous not only for its color, but also for its
miniature size. Nearly everyone knew the car was his. Mata
usually parked behind the warehouse but says about 3 weeks
before August 6 he began parking on North First. Sometimes
he parked near the south end of the block away from the office
spaces, but more often he parked in spaces used by the office
workers. He claims he did this without drawing any comment.
He had placed two prounion stickers on the vehicle but until
August 6 it had not drawn any attention. He also says that he
was unaware of any prohibition barring him from parking there.
On August 6, he put two prounion placards in the car’s back
side windows. Finding an open space, he proceeded to park in
front of the main office about 4 p.m. Later that evening Eric
Hanses issued him a written warning (GC Exh. 97). That
document asserts that all warehouse employees know they can-
not park in the office area until after 5 p.m., and that Mata had
breached the rule. It concluded warning him that if he did it
again he would be discharged.
Later that evening, Hanses issued a similar warning to an-
other warehouse employee who had parked in that area, Oscar
Moreno. Moreno, too, was told that if he did it again he would
be discharged.
Respondent presented a sensible reason for limiting the park-
ing area in front of the office, but offered very little to show
that it was such a serious offense as to warrant the threat of
discharge. Indeed, on the few occasions where the issue had
come up, the employees in question had first been orally coun-
seled. That did not occur with Mata or Moreno. Moreover,
Respondent offered some rather noncredible testimony from
Guillermina Delgado, the night-shift packing supervisor, that
Eric Hanses had instructed her on one occasion to speak to
everyone on the shift (115 employees) to see if they had parked
in front of the office. Frankly, while there may have been a
desire to keep spaces open in front of the office, its effort to
compel such a result was desultory at best. There is evidence
that at least one night-shift employee, Cecilia Padilla, had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1236
parked in that area for 2 years without drawing any commen-
tary. Finally, in November 1997 Delgado admonished her
about it. Padilla also says that Delgado’s claim of an earlier
admonishment never happened. Delgado even gave testimony
that she had announced the policy over the warehouse intercom
on several occasions; yet Padilla testified she never heard
Delgado make any such announcements. Certainly Padilla was
never given a warning threatening her with discharge if she
continued to park in front of the office at 4 p.m. Moreover,
Padilla is a relatively disinterested witness.
Based on the foregoing evidence, I conclude that Mata’s ve-
hicle, adorned by two large prounion placards, attracted Eric
Hanses’ attention. The pink car clearly served as union adver-
tising which was located in front of Respondent’s headquarters
office. That was an irritant which Eric could not stomach.
While he was within his rights to ask Mata to move the car to
the employee parking area, or even to remind him that it was
parked in the wrong place, Eric went too far with the warning.
The warning stated that in the event that it occurred again he
would be discharged. Frankly, that is a severe overreaction to
an extremely minor offense. Such warnings had never been
given before. The only distinction between this offense and the
others is that Mata’s vehicle sported union advertising. That
difference clearly produced Eric’s reaction.
Respondent observes, however, that Moreno was given a
similar warning that day. That treatment, it argues, demon-
strates that Mata was treated no differently than any other indi-
vidual who broke the rule. I am not impressed with that argu-
ment. The Moreno warning is a clear effort to sanitize the one
given to Mata. What is more persuasive is Respondent’s previ-
ous desultory, uneven, and half-hearted effort to enforce a pre-
ferred approach to employee parking.10 That feeble attempt
contrasts sharply with what it did on August 6. I conclude,
therefore, that Eric Hanses’ issuance of the warning to Mata
violated Section 8(a)(1) of the Act. It was retaliatory at worst
and had the necessary effect, at best, of restraining an employee
in the exercise of his Section 7 right to express his prounion
sympathies in public manner.
G. The August 6 Warning to Ana Guzman and
Noemi Mendes
During the first part of the evening shift, Respondent was
running at least one line of bagged apples. Respondent often
packs three different sizes of apple bags: 3, 5, and 8 pounds.
On that evening, the bags were being packed into large triwall
bins. According to Eric Hanses, the lines can only be set for
two sizes at a time. There is testimonial inconsistency about
that point as well as the sizes of the bags being packed. It is
unnecessary to unravel those inconsistencies.
Workers on that line work in pairs, one on each side of a bin.
Each pair is obligated to recognize the size bag which they are
assigned to place in the bin. They are then obligated to grab
that size bag as it goes by on the belt. If the pair fails to remove

10 Respondent’s reliance on the threat-of-discharge warning issued
almost a year before to Martha Blas cannot be accorded any weight.
On its face, it shows that Blas had earlier received an oral warning
which she had disregarded. No oral warnings were given Mata or
Moreno before being threatened with discharge.
a bag, the bag will pass by and be caught at the bottom of the
line by a circular table. That table revolves and eventually the
missed bags will be picked up and placed in the proper bins.
The circular table serves as an overflow table. Employees ro-
tate locations and job duties on these lines every half-hour.
Ana Guzman and Noemi Mendes were rotated to the station
nearest the overflow table. Prior to their arrival at that station,
it had run smoothly. Shortly after they arrived, problems arose.
Approximately 15 bags fell from the overflow table to the floor.
Approximately 35 bags remained on the overflow table. The
line had to be stopped while the bags were picked up and culled
while the bags remaining on the table were packed. Guzman
testified that the lines were running too fast, while Mendes says
that Guzman was grabbing only two bags at a time instead of
four.
Lines Supervisor Frederico Gonzalez helped the two clean
up. Shift Supervisor Eric Hanses had observed the incident and
later spoke to Gonzalez about it. He did not speak to either
Guzman or Mendes. Neither supervisor made any specific
effort to determine the true cause of the incident. Instead,
Hanses decided that since the two were supposed to be working
as a team, they both warranted warnings. He was aware that
the previous team at that station had worked without incident
and that the line’s speed had not changed. He simply con-
cluded that they had not been working fast enough.
During the lunch period he issued warnings to both of them.
The first was to Mendes. He basically described what had oc-
curred, assigning blame to both and asserted that if they needed
help they should call for it. The Mendes warning containing no
reference to a consequence if a similar incident should occur.
The Guzman warning was quite similar but concluded with a
warning that she would be discharged if a similar incident oc-
curred. There is no explanation for this different treatment. So
far as the record shows, Guzman had not received any previous
warnings. That raises the question: Why threaten her with dis-
charge at this stage, but not also issue an identical threat to
Mendes?
Hanses does say, although it is not by way of explanation,
that when he asked Gonzalez what had happened, Gonzalez
told him that Guzman claimed she did not know how to load
the bins. He also says that when he spoke to Mendes, she told
him that Guzman had told her, “Don’t work so hard. Just let
the bags fall.” He says Mendes also requested not to have to
work with Ana again because she didn’t want to get in trouble
or get fired because Ana wasn’t working hard enough. How-
ever, he did not really discuss these issues with Guzman when
he met with her.
Both of them say that the warning discussion took a different
turn. It is clear that Hanses did not ask Guzman what had oc-
curred. He simply gave her the warning and told her to sign it.
At that point Guzman objected, essentially saying that the
fallen fruit was not her responsibility.
She denied she had let the fruit fall and asserted that Hanses
had never given the warning to any worker who had let fruit
fall. She claimed that fruit falls every day. Then she testified
she said to him:
WASHINGTON FRUIT & PRODUCE CO. 1237
The only thing you’re doing is “harassing me because of my
union activity.” And he said, “You’re never at fault, right?”
And I said, “No.” And I told him I am going to sign this pa-
per for you if this will make you feel happy. And I said, “If
you want, I can sign two or three right now because you will
know you’re pressuring me because of my union activity,
that’s all.” So I signed the paper and I put the protest on it.11
Aside from the issue of whether or not Guzman had engaged
in misconduct sufficient to warrant a warning, is clear from her
testimony that she is issuing him a challenge. Rather clearly
she is ridiculing both Hanses and the warning. She is saying
that she is signing the warning not because of any acknowl-
edgement of his managerial authority, but sarcastically, to make
him happy and that she would sign two or three of them, be-
cause they were essentially worthless. It can be seen from her
response that she has become a risk taker. In a sense, she is
daring Hanses to take additional action.
Even so, I’m not impressed with Hanses’ reaction here. Cer-
tainly there is no evidence that Guzman’s performance at the
overflow table was the product of deliberate misconduct. Men-
des never gave any testimony to that effect and even if she told
Hanses that Guzman had said something to the effect that she
was not working at normal speed, Hanses did not use that as a
ground for the warning.
Instead, Hanses chose to treat Guzman and Mendes almost
equally. Both received a written warning. However, those
warnings were not equal. Guzman was told that she would be
discharged if she committed a similar act. Mendes was not.
The only difference between the two here was that Guzman had
become visibly active on behalf of the Union. Respondent
offers no alternative explanation. Accordingly, I conclude that
Eric Hanses enhanced the warning to Guzman because of her
union activity. That enhancement renders the warning illegal
under Section 8(a)(1) and (3).
However, it does not follow that the warning given to Men-
des was also violative of the Act. It cannot be said that Hanses’
approach to the incident was entirely illegally motivated.
Rather clearly an out-of-the-ordinary incident had occurred.
Careful analysis was not required to assign responsibility to the
two who were performing the task. Had the warnings been
equal, it would be hard to say that Hanses had done anything
wrong. What happened here is that he wrongfully enhanced the
warning to Guzman. That enhancement says nothing about the
validity of the warning to Mendes. The concept of warning
both employees was valid; the enhancement to Guzman was
not. To the extent to the complaint may be interpreted as being
concerned with the Mendes warning, it should be dismissed.
H. The Warnings for Leaving Work Early
There are actually two incidents which occurred involving
warnings to employees for leaving work before the work was
done for the day. The first occurred on August 7 and involved
employees Maria del Rosio Diaz (Rosio) and Rosa Quintanar.
The second occurred on September 9 and involved only Ana

11 At the bottom of the warning she wrote in Spanish: “I signed this
under protest. I am not in agreement with this. Eric is harassing me
because of my union activity.”
Guzman. While Guzman was probably the leading union activ-
ist, Diaz was not far behind. In fact, she married professional
union organizer, Andrew Barnes, whom she met during the
campaign. She had worked for Respondent about 3 years be-
fore the election in January 1998. On the date of the election
she resigned to begin married life in the Portland, Oregon area.
Respondent has utilized a shift-ending practice for many
years. The routine is connected to the manner in which the
lines are shut down in sequence. While the shift nominally
ends at 1 a.m., and employees are regularly paid to 1 a.m., in
reality employees at the end of the lines are always obligated to
remain at their stations until the last bag or tray comes off the
line, is packed, and the lines wiped down. The shutdown proc-
ess takes about 10 or 15 minutes and employees in the begin-
ning of the process are able to leave their stations earlier than
the ones at the end of the process. This means that for those at
the end of the line sometimes cannot leave until 3 to 5 minutes
after 1 a.m. According to the managers, there are roughly the
same number of times that the lines actually shut down earlier
and employees, including those at the end, are actually able to
leave their workstations before 1 a.m. In either case the em-
ployees’ time is calculated as ending at 1 a.m.
Respondent points to a Department of Labor Regulation, 29
CFR § 785.48(b) upon which it relies to explain its practice.12
Whether Respondent’s reliance on this regulation is correct or
whether it complies with the regulation is not before me. What
is clear is that at least two of the employee union organizers,
Diaz and Guzman, believed the practice to be illegal in that it
required employees to work after 1 a.m. without being paid.
Diaz concedes that she never spoke to any supervisors or man-
agers about the validity of the practice. In fact, it is not clear
that she actually spoke to any fellow employees about the per-
ceived unfair nature of the practice before August 7. Indeed, it
is not clear that she ever spoke to a fellow employee about her
view of the practice before she chose to leave her line early on
August 7.
1. August 7; Diaz and Quintanar
Diaz was called as a witness by the General Counsel;
Quintanar was called by Respondent. Their versions are simi-
lar but are not mutually corroborative. In the early hours of
August 7, both Diaz and Quintanar were working together at
the end of a packing line. The line had continued to run past 1
a.m., and about 1:03 a.m. the incident occurred. The line itself
seems to have stopped a minute or two later.
According to Diaz, she said that about 1 a.m. she turned to
Quintanar and said, “Let’s go. It’s 1 a.m. and everyone has

12 In its entirety, 29 CFR § 785.48(b) reads as follows:
(b) “Rounding” practices. It has been found that in some in-
dustries, particularly where time clocks are used, there has been
the practice for many years of recording the employees’ starting
time and stopping time to the nearest 5 minutes, or to the nearest
one-tenth or quarter of an hour. Presumably, this arrangement av-
erages out so that the employees are fully compensated for all the
time they actually work. For enforcement purposes this practice
of computing working time will be accepted, provided that it is
used in such a manner that it will not result, over a period of time,
in failure to compensate the employees properly for all the time
they have actually worked.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1238
left.” She says Quintanar responded, “Let’s go.” Diaz says
that Quintanar left first while she stayed a moment to pick up
her belongings. At that point, Line Supervisor Frederico Gon-
zalez approached her to tell her that she still had to clean up.
She declined and says she and Quintanar left the plant together.
Later she modified that testimony to say they went in separate
directions.
Quintanar, on the other hand, testified that even though she
was working with Diaz at the time she simply left because no
one had told her to clean up and that there was no other reason.
She apparently thought her work was done or that Diaz would
take care of it. She denies that Diaz and she even spoke before
she left line. She also says she left by herself in order to meet
her husband who worked in one of the cold rooms. She says
Diaz did leave at the same time, but neither of them said any-
thing to each other. She also says she told NLRB investigator
Hurtado that she left about 1:05 a.m. If she left as late as that,
the line would have either have stopped or have been in the
process of stopping. Under her version, she just left quickly,
leaving the cleanup to someone else, if it was necessary. She
does not make any contention that she was stopping before 1
a.m. to protest any pay practice, nor does she claim that she was
acting in concert with Diaz.
Line Supervisor Gonzalez reported the incident to Shift
Manager Eric Hanses. The following afternoon Hanses pre-
pared written warnings for each of them. The one for
Quintanar reads: “Mrs. Quintanar left her job before it was
finished. If Mrs. Quintanar leaves her work station before her
work is finished again she will be dismissed.” When the warn-
ing was presented to her, she signed it without protest and re-
sumed work on her next shift.
The warning for Diaz was nearly identical. It states:
Mrs. Diaz walked away from her job before she was done.
Frederico saw her and asked why she left. She said “do I
have to stay and finish.” He said yes. She said it’s already
1:00 and walked away. Mrs. Diaz may not leave her work
station before her work is complete—if this happens again she
will be dismissed.
It should be observed here that neither warning refers to an
employee other than the one being warned. There is no sugges-
tion that Eric Hanses believed that the two were acting in con-
cert. Moreover, Quintanar, unlike Diaz, didn’t say anything
which might be considered a protest over having to work after 1
a.m. Diaz’ remark that it was “already 1:00” does not clearly
signify that Diaz was making any kind of protest. Certainly it
does not signify that Diaz was acting in concert with anyone
else. Nor does it signify that she was acting for the mutual
benefit or protection of anyone else. She didn’t even testify to
what Hanses wrote per Gonzalez’ report. Instead, she only
acknowledges Gonzalez asked her to finish, but she apparently
chose to ignore him and walked away.
Unlike Quintanar, Diaz would not initially sign the warning
which had been presented to her in translation by Guillermina
Delgado and Eric Hanses. She says she didn’t agree with what
was in the warning. Since she didn’t sign, they wouldn’t let her
go to work and she went to the union office at track 29 where
she obtained some assistance. There she complained that the
warning was in English (although the statement she signed for
the Union that evening was also in English). In addition, her
statement to the Union does not refer to any concerted action by
her and Quintanar. She simply says, “Last night, shortly after 1
a.m., I had finished working when Frederico Gonzalez asked
me why I hadn’t been at my table, he hadn’t asked me earlier to
clean the table. I answered that it was after 1 a.m. Rosa
Quintanar also left at quitting time.”
She attempted to present that statement to Eric Hanses later
that evening. In doing so she was accompanied by a group of
employees, apparently some of who came from the night shift.
One of them was Ana Guzman. He told her that he would not
deal with the problem at that time and Diaz should return the
following afternoon and take up the matter with Tommy
Hanses.
On August 8 another group accompanied Diaz in meeting
with Tommy Hanses. Again the group included Guzman, and
asserted that the warning was unwarranted and unfair. After
discussing the matter for awhile, Diaz signed the warning and
was permitted to go to work.
2. September 9; Guzman
Although it is out of chronological sequence, I include it here
because the next-described incident closely mirrors the one
described in the preceding subsection. At the time of the inci-
dent, Guillermina Delgado was the packing line supervisor.
Ana Guzman and several others were putting apple trays into
boxes. Guzman testified that in the early hours of September 9
she observed that it had become 1 a.m., and she chose to leave,
telling others near her, “Let’s go.” Her testimony is:
I remember that day, that it was already 1 in the morning. I
was working there with another group of workers close by.
When I turned over to—when I looked over to see the clock, I
saw that it was 1 in the morning. So then, I told them, let’s go,
it’s 1 a.m. So then, I took three steps from where I was stand-
ing working, Guillermina Delgado was very close by there in
front of me, and the part that’s above. So then, she told me,
“Ana, the apples are still coming out.” And I told her, “Guilla,
but it’s already 1:00. So then, I went back and Maria Valencia
was—had taken my place. So I remained there working again
besides Maria Valencia.
Delgado’s version is not significantly different except that
she reports that Guzman did not return to the line, but ignored
her admonition to return. She remembers Guzman saying in a
loud voice. “It’s now 1:00; let’s go.” She then observed
Guzman walk away from her line toward the kitchen. Delgado
called after her, “Ana, it’s still not time for us to go, it’s still—
the machine has not been shut off yet. Return, go back; There’s
still a lot of apples.” But Guzman responded saying, “It’s now
1:00; I am not going to work after 1:00.” Guzman continued on
her way and left.
According to Delgado, there were several other employees in
Guzman’s vicinity, including Diaz, Maria Valencia, Lupe Mar-
tinez, a Rosales, Herrera, and possibly Quintanar. It is undis-
puted that none of the employees responded to Guzman’s ex-
hortation either verbally or by joining her in leaving. They all
remained until the line was shut down a minute or two later.
WASHINGTON FRUIT & PRODUCE CO. 1239
Delgado was on the catwalk at the time of the incident and
unable to immediately catch up to Guzman. As she went after
Guzman she ran into Eric Hanses and reported to him what had
occurred.
The following day Hanses and Delgado called Guzman to
the office to issue her a written warning. The warning states
“Mrs. Guzman walk away from her job before the work was
finished. Her supervisor told Ana to finish. However, Mrs.
Guzman ignored her supervisor and walked away. If Mrs.
Guzman leaves early without permission, or if she fails to com-
ply with her supervisor’s instructions, Mrs. Guzman will be
dismissed.”
There are some slight variations regarding what transpired
during the warning interview at 5 p.m. the next day. Delgado
served as a translator for Eric Hanses. Guzman’s version:
She [Delgado] told me, “Ana, you are going to sign this pa-
per.” I asked why. She said, “Because last night, you left
your line of work. You left before we were finished.” So I
told her, “Guilla, you saw that it was already 1:00 in the
morning.” She said, “Yes. But your obligation is to stay until
the apples stop coming out [down].” I told her, “You saw that
I did not leave by myself. A group left along with me, and
there is no reason to work for free after 1:00 in the morning.”
And she said, “Yes.” So then, I told her, “But you saw that I
went back.” And she said, “Yes, but you left again.” And I
said, “Yes, but it was along with a group of workers. I did not
leave by myself.” Then, I asked her, “Guilla, honestly, was it
1:00 in the morning by then or not?” And she said, “Yes.”
But she said, “You have to—your obligation is to finish, to
finish—to wait until the apples are finished coming up
[down].” So then, I told her, “I already spoke to Tommy
[Hanses] about this. I already told him that we will not work
for free after our shift.” And I told her, “But I don’t have any
reason to be discussing this with you.” So then, she said,
“Sign it.” So I signed it.
After signing it, adding a protest on the back of the form,
Guzman returned to work. Her protest asserted that she was
not in agreement with the warning and contended that it was
because of her union activities. On the face of it, the warning
makes no reference to any union activity, nor was there any
union-related connection to her conduct the night before. In-
deed, fellow union organizer Diaz made no move to join
Guzman. (In fairness, that may have been because she had
been warned against such activity 4 weeks earlier; Delgado
says she was not aware of the earlier incident involving Diaz
and Quintinar.)
Delgado also describes the warning interview:
DELGADO: Eric said [in English], “Ana, I’m going to
give you a warning for leaving your lines before the work
is done.”
Q. BY MR. CARROL: All right. And at that point what
did you say in Spanish to Ana Maria?
A. [Through interpreter] I said [in Spanish], “Ana, Eric
says that he’s giving you this paper to sign, and it explains
here that you left before your work was done.”
. . . .
Q. Okay. Now, after you said those Spanish words to
Ana Maria, what happened next?
A. She said, “I left because it was already 1:00; I will
not work after 1:00 without getting paid for it.”
Q. And she said that in which language?
A. In Spanish.
Q. Now, did you translate that to Mr. Hanses in Eng-
lish?
A. Yes.
Q. Tell the judge what you told Eric Ana Maria said in
English.
A. [In English] I told Eric that Ana said, “I’m not go-
ing to work after 1:00; I can work only—we have to work
only till 1:00. After 1:00, we’re not getting paid.”
Q. Now, who spoke next after you translated that
Spanish statement to Mr. Hanses in English?
A. Eric.
Q. Okay. And what do you remember Eric saying, in
English, if that’s the word—language he used.
A. He said that she had to stay and work like every-
body else till the job was done.
Q. Okay. And did you translate that to Ana Maria in
Spanish?
A. [Through interpreter] Yes.
Q. And could you give us the Spanish translation?
A. I told her, “Ana, Eric says that you need to stay and
work like everyone else until the job is done.”
Q. Did Ana say anything in response?
A. She argued back and said that she was—she would
[only] work until 1:00.
Eric Hanses’ testimony is very similar to Delgado’s:
WITNESS [ERIC HANSES]: Okay. I said, “You can’t
leave work early.”
Q. BY MR. CROLEY: And did she respond?
A. Yes.
Q. What was her response?
A. Her response was, “It was 1:00 o’clock and I was
going home.”
Q. And did you respond to that?
A. Yes.
Q. What did you do next?
A. I said—I can’t recall the specific words that were
used in this transaction, so how do I—
ADMINISTRATIVE LAW JUDGE KENNEDY: Well, just tell
me what your best recollection is then.
THE WITNESS: Okay. My best recollection of the con-
versation is that I again—I explained to her about the shift
ending early and/or late, and I explained that I had a write-
up for her, and that she can’t—she cannot leave work
early. And she signed the warning and went back to work.
Q. BY MR. CROLEY: During this meeting did Ana ever
indicate whether she had returned to the line?[13]

13 Guzman testified that she had first left the line and then returned.
Neither Delgado nor Eric Hanses agree. Hanses testified that when
Delgado met him on the catwalk to tell him that Guzman had left, he
walked part way down so he could see the area where he had last been
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1240
A. No.
. . . .
Q. BY MR. CROLEY: Is there anything else that you re-
call her saying during the meeting?
A. No.
Q. Did she say that she had left early in protest of any-
thing?
A. She never said that she was protesting. No.
Q. And you indicated that you gave her a disciplinary
notice at this meeting?
A. Yes.
Q. And what was your reason for giving her that no-
tice?
A. Because she left work early.
Q. Okay. And was there any other reason that you
gave her that notice?
A. No.
3. Analysis
The General Counsel asserts that both incidents were pro-
tected by Section 7 of the Act. The theory is that Diaz,
Quintanar, and Guzman were all protesting Respondent’s prac-
tice of requiring employees to work past 1 a.m. There are sev-
eral problems with the General Counsel’s approach. We may
assume that Respondent knew both Diaz and Guzman were
union activists, for they wore union apparel and buttons. Ex-
cept for that, however, there is really no evidence that Diaz and
Quintanar were operating in concert in these two incidents.
There is no suggestion that anyone thought their leaving early
was union activity. In fact, the General Counsel does not even
make that contention. Quintanar’s testimony suggests that she
only left early to meet her husband, leaving cleanup to her part-
ner. Neither Diaz nor, later, Guzman ever said anything to any
manager suggesting that their actions on those evenings had the
purpose of protesting the practice or had a union aim of some
kind. Indeed, there is no evidence that they said much of any-
thing until the following day when they received their warning
slips. When they did speak they only remarked that it was
“past 1 a.m.” and they didn’t want to work after 1 a.m. without
being paid.
Moreover, I’m not impressed with Guzman’s credibility re-
garding what she did in the September 9 incident. She says that
she initially left the line, was called back, found Valencia at her
place and then worked beside Valencia for a few moments and
then left again with other employees. It would seem to me that if
that were true, by the time she left again, the line would have
been stopped. In that situation, when the others left it would have
been because work had ended. No concerted work stoppage
would have occurred. Yet she makes it sound as if others had
joined her when they had not.
The more likely version is that Guzman had attempted to per-
suade others to leave with her while line was running, but had
failed. She left, hoping they would follow her when she said,
“Let’s go.” But no one did. She decided to keep going and did

working. He said, “[W]e went part-way down the catwalk, and I was
looking in the area that she—that I’d last seen her, and I didn’t see her.
And when I turned off the packing line two minutes later, I went—I
walked all the way down to the end, and I didn’t see her.”
so. Delgado’s admonition would not have stopped her. She
believed she was on a mission, and it is unlikely that Delgado’s
direction to return to the line would have been heeded. Accord-
ingly, I do not credit Guzman’s contention that she returned to
the line and that the others left with her moments afterward, but
before the line stopped.
There is no suggestion in anything which Hanses or Delgado
(or Gonzalez earlier) said or did which leads to the conclusion
that the warnings issued were for any reason other than respond-
ing to an employee’s decision to leave work before she was sup-
posed to. It is true that Diaz and Quintanar seemed to leave si-
multaneously, but the warnings levied upon them did not even
mention that the two had left at the same time. In fact, the evi-
dence leads to the conclusion that it was Quintanar who left first,
to avoid the cleanup and to meet her husband. In fact, Quintanar
stood by the doorway waiting for her husband; she did not de-
part.14 Had she been protesting, she would have left the building
in order to avoid being told to return to her station. There was no
reason for Gonzalez to conclude that any concerted activity was
occurring. From his point of view, two employees were skipping
out early. Neither he nor Gonzalez was aware of anything which
would lead one to conclude that a concerted protest was being
made.
But, assuming as the General Counsel does, that a concerted
protest was in progress, it does not follow that it was also pro-
tected. It has long been a tenet of employment law that employ-
ees do not have the right to set their own terms and conditions of
employment. Recent cases on that point are: Scioto Coca-Cola
Bottling Co., 251 NLRB 766 (1980); Bird Engineering, 270
NLRB 1415 (1984); Interlink Cable Systems, 285 NLRB 304
(1987); House of Raeford Farms, 325 NLRB 463 (1998); cf.
Specialized Distribution Management, 318 NLRB 158 (1995).
(Arbitrator entitled to assume that employees cannot set their
own terms and conditions of employment.) Earlier cases are
cited throughout those decisions.
The Act, of course permits employees to negotiate, through a
collective-bargaining agreement, changes in terms and condi-
tions of employment. That is quite different from employees
unilaterally setting their own terms and conditions. Moreover,
Section 7 of the NLRA protects employees who make common
cause with one another for their mutual aid and protection. The
pertinent language is set forth in the footnote.15
Here the employees accepted Respondent’s terms and condi-
tions when they were hired, including the so-called “rounding”
pay practice at the end of the night shift as it affected the em-
ployees who tended the ends of the lines. On August 8 and
again on September 9, Respondent did what it had always done;
it allowed the shift to end less than 5 minutes after 1 a.m. (On
other days it had apparently ended the shift before 1 a.m., also a
practice it had always followed.) Respondent made no changes
in the working conditions which the employees had accepted.
Nonetheless, Diaz and Guzman decided to change those condi-
tions simply by declining to work under them. Their act of

14 Quintanar’s sense of urgency was misplaced. Her husband did not
meet her at the doorway until 10 minutes later.
15 Sec. 7 states: “Employees shall have the right . . . to engage in . . .
concerted activities for the purpose of . . . mutual aid or protection.”
WASHINGTON FRUIT & PRODUCE CO. 1241
walking away from the lines was a clear effort to set their own
terms and conditions of employment. Even so, it is not clear
that they had made common cause with anyone; even if they
had, neither Gonzales not Delgado could have been aware of it,
for these employees said nothing about why they were leaving.
And, we know that Quintanar was not a part of anything.
As the Board said in Bird Engineering, supra: “These em-
ployees did not engage in a strike, withholding of work, or
other permissible form of protest to demonstrate their dis-
agreement with the Respondent’s rule. Instead they simply
chose to ignore the [Company’s] rule in direct defiance of the
direction and warnings of management. By treating the rule as a
nullity and following their pre-rule lunchtime practice they did
not participate in a legitimate protected exercise but rather en-
gaged in insubordination. These employees were attempting
both to remain on the job and to determine for themselves
which terms and conditions of employment they would ob-
serve.”
The law does not empower employees to set their own rules,
including their hours of work. Thus, even assuming these wal-
kaways were concerted, they were not protected under the doc-
trine cited above. Accordingly, the allegations in the complaint
asserting that the warnings given to Diaz, Quintanar, and
Guzman were unlawful shall be dismissed. If the employees
wished to have protested the rounding practice, they were free
to file complaints with either the U.S. Department of Labor, the
Washington State Department of Labor and Industries, or to go
on strike in protest of the practice. They did not choose any of
the protected paths; instead, they simply determined on their
own when to work and when not to work. That has never been
protected.
One other observation may be made. Guzman had become
involved with the group who supported Diaz on August 8. She
had served in some leadership capacity for that group and had
spoken to Tommy Hanses on Diaz’ behalf. She even told him
she disagreed with the practice of requiring employees to work
after 1 a.m. without additional pay. She was well aware of
Respondent’s view on the matter, that employees were obli-
gated to do so, though the rounding explication may not have
been clearly explained. Thus, when she chose to leave on Sep-
tember 9, she knew she was defying a company rule and delib-
erately put her job at risk. One may reasonably ask whether she
was embarking upon a campaign of provocation when review-
ing the subsequent events in which she was involved.
I. The Aaron Ayala Affidavit; Allegations of Threats and Sur-
veillance on August 8
Aaron Ayala was a night-shift laborer who also performed
some packing and some cleanup duties. Ayala was deported
from the United States at El Paso, Texas, by the U.S. Immigra-
tion and Naturalization Service on October 29, 1998, a week
before the instant hearing opened in Yakima. He had been
hired in 1995 and continued to work for Respondent through
some time after the NLRB election in January 1998.
Ayala does not appear to be able to read and write English;
he says in an English affidavit that he is Spanish-speaking. The
affidavit, taken by a Spanish-speaking Board agent, was offered
by the General Counsel in support of paragraphs 7(f) and 10(a)
of the complaint. Those allegations assert that Eric Hanses on
August 8 engaged in excessive supervision and surveillance of
union supporters and that on the same date Guillermina
Delgado told employees that all union supporters were useless
and would lose their jobs. Both are alleged to violate Section
8(a)(1).
Because Ayala had last been seen by an INS agent crossing
the bridge to Mexico from El Paso, the General Counsel asserts
that Ayala is unavailable as a witness. Respondent hotly dis-
putes that contention. In any event, the General Counsel noti-
fied Respondent about a week before it was actually offered of
its intention to utilize the residual exception to the hearsay rule,
Fed.R.Evid. 807, formerly Rule 804(b)(5), to have the affidavit
received in evidence.
As a matter of policy, the General Counsel has usually cho-
sen not to obtain the personal presence of witnesses who reside
in foreign countries. Indeed, it would appear from colloquy
that the General Counsel does not wish to obtain the presence
of individuals who have been deported by the INS. In any
event, the General Counsel did not seek to bring back Ayala for
the hearing; nor did it seek to depose him in Mexico under
consular procedures.
The residual rule has several components: first, the witness
must be unavailable to testify; second, the statement must have
circumstantial guarantees of trustworthiness equivalent to live
testimony; third, it must be offered as evidence of a material
fact; fourth, it must be more probative than other evidence
which the proponent can procure through other reasonable ef-
forts; and fifth, the general purpose of the rules and the interests
of justice will be served by admitting the document in evidence.
Board law appears to require that I receive the document and
I did so at the hearing. (GC Exh. 99.) See Custom Coated
Products, 245 NLRB 33 (1979); and Weco Cleaning Special-
ists, 308 NLRB 310 (1992). In general, the Board believes that
affidavits taken by its investigative agents are sufficiently
trustworthy to warrant receipt in evidence when a witness is not
available. At least two circuit courts disagree. See Central
Freight v. NLRB, 653 F.2d 1023 (5th Cir. 1981); and NLRB v.
United Sanitation Service, 737 F.2d 936 (11th Cir. 1984).
Yet, Fed.R.Evid. 901 requires that evidence be authenticated
as a condition precedent to admissibility. I note here that Gen-
eral Counsel’s Exhibit 99 has not actually been authenticated
by any witness. The Board investigator did not testify and so
did not authenticate the exhibit. I accepted counsel for the
General Counsel’s representation that the Board agent had
taken the affidavit and it is what it purports to be. However, the
exhibit is certainly not self-authenticating and it is troubling in
at least one other respect—it incorporates by reference an Eng-
lish statement taken and written in the first person by a nongov-
ernment person. That attachment is not authenticated for pur-
poses of admissibility by anyone. Accordingly, I must con-
clude that General Counsel’s Exhibit 99 has not been authenti-
cated sufficiently to warrant its admission in evidence and I
must reverse my earlier ruling. See National Family Opinion,
246 NLRB 521, 532 fn. 1 (1979). I reach that conclusion even
though I authenticated Ayala’s signature on his union authori-
zation petition (GC Exhs. 20-88) based on exemplars. The
stipulation governing that signature does not run to his affida-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1242
vit, and I am unwilling to authenticate it for admissibility pur-
poses. That duty rests with the General Counsel, not with the
judge.
Even beyond the question of authenticity is the question of
whether this affidavit and its attachment have circumstantial
guarantees of trustworthiness. I have real doubts in this regard
and earlier expressed them on the record. First, the Board agent
interviewed the witness in Spanish. It is unclear to me from the
face of the statement whether the Board agent actually identi-
fied the witness and if so, how. Second, although he inter-
viewed the witness in Spanish, no Spanish document was pre-
pared. The Board agent then reduced whatever notes he had
taken to an English statement, read it to the witness in Spanish,
and then had him sign it. No Spanish version was ever pre-
sented to the witness; indeed no Spanish version was ever cre-
ated.16
Moreover, the Board agent’s written version and the un-
known union official’s written version are not consistent. Writ-
ten in the first person, the writer (not Ayala, but writing as if
s/he were Ayala) says that he put on a union button at 6:15 p.m.
and that about 4 hours later he was subjected to a statement
from Delgado that individuals who were involved with the
Union were useless and would be kicked out. That statement
does not appear anywhere in the affidavit taken by the Board
agent. The affidavit which the Board agent did write does not
mention Ayala putting on a union button, but does describe Eric
Hanses as giving Ayala special scrutiny that evening, including
a scolding for working on the bag line when he had been in-
structed to work on the box line. That affidavit contains no
reference to any remarks made him by Delgado.
These factors, when added together, leave me without confi-
dence in the trustworthiness of what the documents describe.
First, the witness was asked to sign a document which he could
not read as it was in English and the only language which he
really understood was Spanish. Second, judges are all familiar
with the difficulty of dealing with nuance in affidavits. Chief
Judge Markey commented on the problem in Central Freight,
supra at 1026, quoting from another case: “As stated in Work-
man v. Cleveland-Cliffs Iron Co., 68 F.R.D. 562, 565
(N.D.Ohio 1975): ‘The court is well aware of the subtle shifts
in meaning that can occur when one’s statement is recorded by
another.’” I can only add that the problem is dramatically en-
hanced when the statement goes through translation from a
foreign language. Indeed, here, we cannot even present an
original Spanish statement to a court translator to compare with
the English, because it does not exist. Moreover, the identity of
the translator of the attachment is unknown, as is his/her trans-
lation skill and objectivity.
Finally, there is the question of whether Ayala was truly un-
available, although I think he was, having departed for a for-
eign country. Yet, I cannot say that the General Counsel has

16 For Jencks purposes [Board Rule 102.118(b)(1)], written Spanish
translations of the English were provided for witnesses who actually
testified. Even so, those translations had never been seen by the wit-
nesses prior to their being on the witness stand. Indeed, they were not
necessarily translated back to Spanish by the Board agent who inter-
viewed them. I find this procedure to be irregular.
utilized all the reasonable means that the Government has
available to it to secure his presence. For all we know, he may
have remained in Juarez, across the border from El Paso. Or he
may have gone to a city with a U.S. Embassy or Consulate
where he could readily be deposed. He may have been only a
telephone call away. Of course, he may also have retreated into
deep rural Mexico and become totally unavailable. While I
cannot say what level of effort could reasonably have been
made, I know that the General Counsel did not direct his staff
to look much past Yakima and environs. I doubt that is
enough. However, I base my conclusion on more narrow
grounds.
If the General Counsel wants his allegations to be sustained,
he must provide admissible evidence. The Ayala affidavit re-
mains unauthenticated and is hearsay which is not admissible
under any of the recognized exceptions. It simply has too many
shortcomings, the worst of which is a lack of trustworthiness,
having been cluttered on the one hand with a non-NLRB scriv-
ener and bare of a Spanish original on the other. Respondent
need not meet inadequate evidence such as this.
Since the General Counsel has offered no other evidence,
paragraphs 7(f) and 10(a) of the complaint must be dismissed.
J. The August 12 Demonstration; Videotaping; Demand
for Recognition
1. Descriptive facts
Although the Union had made plans to demand recognition
from Respondent in a public manner, it did not advise anyone
from Respondent’s management that it was going to do so.
Apparently, however, the Union did notify the news media.
Several television stations and the “Yakima Herald” newspaper
were on hand for the event. Respondent’s officials were kept in
the dark about the Union’s intentions. In fact, Rick Plath had
been on vacation through Sunday, August 10.
Sometime during the evening of Monday, August 11, Plath
received a telephone call from Mike Gempler, an official of the
Washington Fruit Growers League. Although intended as a
“heads-up,” Gempler’s intelligence was obviously based on
incomplete, possibly inaccurate, data. Plath describes the in-
formation which Gempler transmitted to him:
Mike Gempler called me on the telephone at home and said
that there was somebody from Washington, D.C., with the
AFL–CIO, and some Teamster organizers from there as well,
which would be marching from the train station [Track 29] to
our packing line office tomorrow sometime . . . He just said
these were high-ranking officials, and there’d be a lot of peo-
ple who would be with this group, and that was about it.
Plath could not determine much from what Gempler had
said. He did discern that it was going to be a Teamster opera-
tion.17 Yet, he did not know what the purpose of the march
was, he did not know who the march leaders would be, he did

17 At that time, the Union was operating under a newly minted trade
name, “Teamsters United for Change.” That name’s connection to the
International Brotherhood of Teamsters was not well understood at that
time. It could easily have been mistaken for a splinter group of some
kind as well as a nascent independent union. Yakima has long had its
own Teamsters Union, Local 760.
WASHINGTON FRUIT & PRODUCE CO. 1243
not know who would be involved (company employees or out-
siders), he did not know how many people would be participat-
ing in the march, nor did he know when it would take place or
how long it would last. In fact, he could not be sure the march
would be entirely peaceful, although he had no reason to be-
lieve that it would be especially aggressive, either. He simply
did not know what to expect. He nonetheless believed that it
would be unwise to be unprepared.
The following morning he met with Tommy Hanses and
Alex Martinez.18 Plath says he gave the following instructions
to Martinez: “[I] asked Alex if he would get the video camera
ready, because there was going to be a march on our plant
sometime that day, and I was concerned about employee safety
and their vehicles . . . and we have kind of sophisticated pack-
ing equipment, and I just wanted all of this preserved on tape if
there was any damage which was going to take place.” . . . .
“We were concerned about violence at that time.” Martinez
adds that possible trespassing was also an issue.
Sometime between 2 and 3 p.m. a group of about 50–60 peo-
ple met at the Union’s office at track 29. The march was led by
John August, who is the coordinator of organization for the
International Brotherhood of Teamsters in Washington, D.C.
He was accompanied by Richard Trumka, secretary-treasurer of
the AFL–CIO. The International organizers in charge of this
campaign all reported to August. There were approximately
five of them assigned to this drive. The chief organizer was
Lorene Scheer. She, too, participated in the march. While the
testimony does not clearly reveal whether her fellow organizers
also participated, it seems likely that they did. Certainly the
video evidence suggests that they did.
August testified that the group grew larger as the march pro-
gressed. He estimated that it exceeded 100 people by the time
they arrived in front of Respondent’s main office on North First
Avenue. Upon arriving at that location, they erected a large
folding table, styled as a symbolic bargaining table.
The crowd consisted of men, women, and children. In some
respects it took on a festive atmosphere. They were carrying
balloons. Even so, the area in which they gathered was not
very large and the gathering did block and/or slow traffic on the
street. Martinez shot approximately 19 minutes of videotape
during the demonstration. For the most part he stood on the
west side of the street aiming toward the east. From this van-
tage point much of his filming was directed at the backs of the
demonstrators as they faced the office doorway. He shifted
positions several times, sometimes retreating into the wide-
open warehouse doorway. At some points he was clearly visi-
ble to anyone who chose to look, while in others he was less
obtrusive.
August says that the demonstration lasted 15 to 20 minutes.
Martinez recalls it lasted about an hour. He only videotaped 19
minutes. He explained that his camera was not continuously

18 Martinez is alleged in the complaint to be the human resources
manager. Martinez has worked for Respondent for 11 years, starting
out as a forklift operator and then working his way up into the office,
translating, working on unemployment and workman’s compensation
claims, helping with the hiring paperwork and the like. He appears to
be a capable young man. He had utilized video equipment as part of
his job in handling workman’s compensation issues.
turned on during the entire rally and the camera battery became
too low.
Martinez also testified, after he reviewed the video, he could
only recognize about 12 of the people photographed as being
Washington Fruit employees. His testimony contrasts with
Scheer’s who says that when she viewed the video she recog-
nized 26 employees by name plus additional employees by
sight, for a total of about 40. If Scheer is correct, then the
crowd included 60 individuals who were not employees. If
Martinez is correct, then more than 80 of the demonstrators
were not employees. In viewing the videotape I observed that
there were people carrying banners and flags identifying them-
selves as supporters or members of the United Farm Workers
Union. If so, they were no doubt strangers to Plath and Re-
spondent.
In the very first portion of videotape, Scheer can be seen giv-
ing some instructions to a colleague. That individual promptly
approaches Martinez with his own camera and smilingly takes
Martinez’ picture. Later in the tape another individual ap-
proaches Martinez and, in good humor, tells him that he is en-
gaging in “illegal surveillance,” saying, “[W]e’ll talk about it in
court.” Further into the tape another cameraman appears and
photographs Martinez as he operated his camera. In addition,
toward the end of Martinez’ tape several commercial television
cameramen are seen, apparently gathering news footage.
The rally leaders sat at the table while others crowded
around them. It appears from an early portion of Martinez’
videotape that the crowd began to chant “We want Rick!” The
chanting lasted for a few minutes, followed by a cheer when
Plath appeared. Plath can be seen later in the video momentar-
ily as he returns to the building. From the testimony of both
Plath and August it appears that when Plath learned that
Trumka was one of the officials, he went outside to greet him.
Trumka did not know Plath and had to be convinced by by-
standers that Plath had actually come out to meet him. The
“Yakima Herald” took a picture of the two shaking hands.
Apparently the encounter was so unexpected and so brief that
August was unready to hand the demand for recognition letter
to Plath although he says he attempted an oral demand. Either
Plath ignored August or was engaged with Trumka. Plath de-
nied speaking to August at all. Plath spent little time there and
promptly returned to the building.
Martinez’ tape does show that the crowd behind the table
had spilled well into the street and that people were milling
around on the roadway. It also shows vehicle traffic, both
smaller vehicles and tractor-trailers attempting to negotiate
their way through the crowd. There is no question that traffic
was slowed to a snail’s pace. In addition, there is testimony
that smaller vehicles which entered the block at either end fre-
quently decided to make a U-turn to avoid the crowd. It ap-
pears from the videotape, but not from the testimony, that after
Plath appeared the table was moved from the office side of the
street to the warehouse side. After the table was moved, traffic
flow seemed to improve. It seems quite likely that the table had
originally been placed on or partially on the roadway and
needed to be moved.
The tape also shows, about the 15th minute, a large number
of demonstrators, some with small children, entering the office
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1244
en masse. Their activity is peaceful in the sense that no mis-
conduct occurs, but it is also clear that their number far exceeds
what would be expected to enter an office of that size. Those
individuals are also seen to be leaving shortly after they en-
tered. The purpose of the entry cannot be determined simply
by viewing the tape.
From the table’s new location, about 18 minutes into the
tape, the Union decided to send Guzman and two other em-
ployees into the office with the written demand for recognition.
The tape shows Guzman and two others running across the
street, into the building and appearing to deliver some sort of
paper. They exit shortly thereafter. Guzman says that the letter
was given to her by August and she took it up the stairs. That
letter has never been found.
In addition, Scheer says the Union made an effort to send an
original of the letter to Respondent by certified mail, although
there is no proof that it was delivered. The Union did not pre-
serve a copy of the original. Despite those failures Respondent
acknowledges that it received a fax version of the recognition
demand on the following day.
2. Analysis
The complaint alleges that Martinez’ videotaping the demon-
stration violated Section 8(a)(1) of the Act. It is true that the
Board is rightly concerned about the coercive effect photogra-
phy might have on employees who are engaged in protected
activity. Such photography has been described as “pictorial
recordkeeping” which would have the tendency to create the
fear of future reprisals. Waco, Inc., 273 NLRB 746 (1984).
Furthermore, the Board has said that photographing in the mere
belief that something “might” happen is not justified when
balanced against the tendency of that conduct to interfere with
the right of employees to engage in protected activity. F. W.
Woolworth Co., 310 NLRB 1197 (1993), citing Flambeau Plas-
tics Corp., 167 NLRB 735 (1967), enfd. 401 F.2d 128, 136 (7th
Cir. 1968), and NLRB v. Colonial Haven Nursing Home, 542
F.2d 691, 701 (7th Cir. 1976). The Board quoted, with ap-
proval, the Colonial Haven court’s statement that “the Board
may properly require a company to provide solid justification
for its resort to anticipatory photographing.”
Despite that language the Board has taken a generally realis-
tic view of photographing protected activity. Indeed, it has
engaged in a balancing of interests approach. There are cir-
cumstances where photography has been found lawful in a
variety of circumstances. Clearly picture taking of protected
activity cannot be not a per se violation of the Act. U.S. Steel
Corp. v. NLRB, 682 F.2d 98 (3d Cir. 1982). The Board has
permitted photographs of pickets in circumstances where recent
strikes have been violent, Bozzuto’s, Inc., 277 NLRB 977
(1985), and where it is necessary to preserve or collect evidence
of illegal picketing. Roadway Express, 271 NLRB 1238
(1984); Concord Metal, 295 NLRB 912 (1989). The test is not
whether the violence or illegal activity is actually occurring, but
whether it is reasonably likely to occur. “Mere belief” that
something might happen is not enough, but a belief greater than
“mere” would seem to qualify as a justification. That requires a
fact finder to undertake an assessment of what sort of belief the
employer had at the time he ordered the photos to be taken. I
do so here.
The entire demonstration was obviously planned very care-
fully. It required the presence of two high-ranking union offi-
cials who had to travel cross country. It required the gathering
of individuals at a specific time at track 29. It required a sce-
nario to be played at the site—here a symbolic bargaining table.
It required an audience, and the news media were invited. Most
importantly, it required an unsuspecting employer who would
not be given time to duck. Thus, keeping any information
about the plan from Plath was essential.
Indeed, the information which was relayed to Plath was
minimal and came only the night before. Gempler had told him
that a lot of people would be coming from track 29 accompany-
ing some high-ranking union officials. He had a good idea that
it was a Teamster-sponsored event. He could also conjecture
that nonemployees would be involved. If he made that surmise,
he was right, for well over half of the demonstrators did not
work for him and he had no idea who they would be.
It is now clear that the Union had no intention of violence
and, being a well-orchestrated demonstration, the Union may
have had controls in place to thwart any misguided persons. If
so, that information was unknown to Plath. All he had heard
was that a lot of people would be marching on his plant. The
information he had was not even known to be reliable. He was,
as the Union wanted, mostly in the dark. He didn’t know who
the leaders were, he didn’t know who the followers were, he
didn’t know their purpose and he didn’t know when the march
would begin, how long it would last or what they would do
when they arrived.
It may even be conceded for the purpose of this discussion
that Plath did not think that the company was going to be at-
tacked by a lawless mob. Still, he had safety to think of. The
area in front of the office is constantly used by employees
crossing from one building to the other, the office itself is not
secured by guards, the plant doors are usually open, employees
are found in both places, expensive equipment is located just
inside the door to the warehouse, and autos are parked in the
spaces on each side of the street between the buildings. It
would be an imprudent business practice for Plath to have ig-
nored the property and safety issues that a crowd of unknown
proportions and purpose would present. He had to take steps of
some sort.
When he arrived at the plant in the morning he undoubtedly
became aware that most, if not all, of the morning shift was at
work and things seemed entirely normal. He didn’t have a
strike on his hands, but the day was still young and he didn’t
know what might happen. Without any immediate threat there
was no point in obtaining security services or calling the police.
Indeed, Plath probably had doubts that Gempler’s information
was correct. Maybe nothing would happen.
Still, he couldn’t very well do nothing. He chose to take
what he perceived to be an unobtrusive way to deal with the as
yet ephemeral demonstration. That was simply to ask Martinez
to videotape it if it took place. At the very least, he reasoned, if
an untoward incident occurred, Martinez would be in a position
to collect evidence about it. Clearly it was less coercive in the
WASHINGTON FRUIT & PRODUCE CO. 1245
circumstances than calling the police or bringing in security
guards, not to mention more cost effective.
When the marchers actually arrived, almost the first thing
which occurred was Scheer’s noticing Martinez and deciding to
obtain proof of his photography for herself. She instructed a
colleague to take a picture of Martinez. Those two focused
their cameras on one another in an amiable manner. Later,
another person, probably an organizer, joked with Martinez that
he was engaged in illegal surveillance and they’d “talk about it
in court.” Martinez’ work also shows the crowd in the street as
well as the traffic impedance. Still later, Martinez captured a
large group entering the office en masse and then exiting. Most
of the people throughout the video are shot from behind, and
there are no instances where Martinez focuses on any one per-
son except for those who deliberately sought to be photo-
graphed.
Keeping in mind that this entire demonstration was deliber-
ate “street theater,” I have great difficulty in concluding that
Martinez’ videotaping was actually coercive. Here, the Union
planned a demonstration, invited the public, and invited both
newspapers and local television stations to the event. It kept
Respondent in the dark about its intentions and now complains
that the Company’s moderate response is censurable. The
irony is self-evident. It seems to me that in a very real sense
the Union is setting the Company up for a fall. It may even
reasonably be argued that the Union was seeking to provoke
some sort of illegal response from Plath for its own advantage.
Whether or not that is true, there is really no question, as I
observed that the hearing, that placing a large number of per-
sons in a small area such as this for confrontational purposes
runs the risk that those individuals will not behave. Here, most
of the individuals in the crowd had no real stake in the security
of the area and its contents, such as automobiles, property and
machinery. They were not employees whose livelihood de-
pended on that property. Moreover, they were caught up in a
social cause in which Respondent was being portrayed as some
sort of wrongdoer, an exploiter of labor. It would have taken
only one person, whether demonstrator or interloper, to have
ignited the event.
Any reasonable person would have concluded, as Plath did,
that there was a sufficiently high level of risk connected to such
a demonstration to warrant some level of cover. In that circum-
stance, I am unable to conclude that Plath’s decision to direct
Martinez to videotape the demonstration was unreasonable.
There is no evidence that Plath had directed Martinez to pick
out specific employees to be photographed. Plath’s concern
turned out to be reasonably well founded. At least one incident
occurred which might have become misconduct, the en masse
entry into the office. Indeed, the vehicle hindrance which oc-
curred might have resulted in an unfortunate incident as well.
Had one of the demonstrators been struck by a car or truck,
Martinez’ videotape might well have provided evidence that
Respondent was not legally responsible for the pedestrian’s
injury.19

19 Workmen’s compensation claims are not unheard of in demonstra-
tion injury cases assuming the injured party was an employee, whether
protestor or bystander. Moreover, a negligence claim against an em-
Balancing the employees’ Section 7 right to be free of coer-
cion against Respondent’s obligation to maintain a safe work-
ing area (including vehicle parking), even if that area crosses a
public street, I conclude, based on the facts here, that Respon-
dent’s measured use of the video camera did not violate Section
8(a)(1) of the Act. Plath had legitimate reasons for videotaping
portions of the demonstration.20 Accordingly, this allegation
will be dismissed.
K. Improved Health Plan Costs
1. Facts concerning the copayment decrease
For a number of years Respondent has provided its employ-
ees with health insurance through a plan known as PacifiCare.
It provided coverage via multiple options. These options in-
cluded medical/vision and medical/vision/dental coverage. It
was available to the employee, the employee plus dependent,
the employee plus spouse, or the employee plus spouse plus
dependents. Each of the options requires the employee to pay
different amounts, while the employer pays a separate amount
of the total premium. The employee’s portion is called a “co-
payment.” This system was in place at the time the Union be-
gan its organizing drive in the Yakima Valley in 1996 and later
when the Union obtain its first signatures from Respondent’s
employees in March 1997.
Curiously, not very many employees had ever signed up for
the plan. Only 41 of the more than 300 employees (about 14
percent) have actually chosen coverage. Since the employee-
only copayment is just $24 per month, such paucity is surpris-
ing.21 Even if employees thought spouse/dependent coverage
was too high, coverage for the breadwinner alone was (and
remains) fairly inexpensive.22
It is uncontested that Respondent usually conferred addi-
tional benefits in May of each year. In May 1997, Respondent
announced a 4-percent-across-the-board wage increase and also
reduced the annual work hours required to qualify for vacation
pay. The latter was due to the recent installation of more effi-
cient equipment which had reduced the likelihood of employees
qualifying for vacation pay under the old rule. Neither of these
benefit grants is alleged to be unlawful.
At the same time, according to both Tommy Hanses and
Rick Plath, Plath had become concerned that the level of the
health insurance copayment was not competitive with that of
other nearby packing houses. He contacted Don Reed of the
Yakima Valley Growers-Shippers Association to ask him to

ployer by a nonemployee injured in such a demonstration is hardly far-
fetched.
20 After the incident, Plath told the local newspaper that he had been
“wrong” to have videotaped the demonstration. Such a remark does not
qualify as a binding admission on a question of law. It only amounts to
a hindsight recognition that the demonstration had turned out to be
peaceful. Had he known the Union’s plan in advance, his decision to
videotape might have been different.
21 The copayment was $54 for employee and his/her dependents.
For employee and spouse it was $82, while for employee/spouse/de-
pendents it was $112.
22 Observing that many of Respondent’s employees are married
women, my concern is likely without foundation if they are relying
upon health insurance from their spouses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1246
survey the Association’s members to determine the copayment
other companies were offering. In late June, Reed responded
by telephone advising Plath about the copayment rates of some
of the other plants as well as that required by the plan offered
through the Association. Plath asked him to put the informa-
tion in writing and Reed did so in mid-July. At that point Plath
became certain that the copayments required by Respondent
were higher than what was being offered elsewhere in the in-
dustry.
Plath then turned the matter over to Tommy Hanses, instruct-
ing him to make adjustments. During the last week of July and
the first 2 weeks of August, both Plath and Hanses were absent
due to overlapping vacations. Hanses was able to complete
proposed changes in the copayment structure before he left and
put the proposal in Plath’s inbox. It was there on Monday,
August 11, when Plath returned. The evidence does not reflect
whether Plath approved the proposal that day or the next. The
following day, of course, was the day of the march and demon-
stration.
On Wednesday, August 13, Respondent distributed General
Counsel’s Exhibit 32, the announcement of the changes which
Plath had approved. The employee-only rate for medical/vision
coverage remained the same, $24 per month. For all the other
options the copayment was reduced. Those reductions ranged
from $8 to $25 for medical/vision coverage. For medi-
cal/vision/dental, the copayment rate decreases ranged from $8
to $52.
Between the date of the announcement, August 13 through
December 1997, seven additional employees added themselves
to the plan. Two of those chose employee-only coverage and
did not benefit from the new copayment schedule. The remain-
ing five had earlier filled out applications to join the plan and
joined when they had worked sufficient hours to become eligi-
ble. That means that slightly more than 1-1/2 percent of the
employees added themselves to the enhanced plan during that
period. Yet, it is impossible to conclude that any of those were
induced to join based upon the reduced copayment schedule,
for they had signified their intention to so before the plan was
changed. Moreover, the record does not show how many of the
41 covered employees had chosen coverage for family mem-
bers other than themselves. As a result, the percentage of em-
ployees actually affected by the change is unknown, though we
can surmise that it is less than 14 percent, since only 14 percent
were covered at all.
Additionally, as Plath’s and Tommy Hanses’ testimony de-
scribing the manner in which the copayment matter was han-
dled is unchallenged, I conclude that it occurred in the manner
they described. Thus, it appears that beginning in May Re-
spondent had some misgivings regarding the level of copay-
ment the plan required and began to explore whether its levels
were appropriate. It conducted an investigation which led it to
the conclusion that adjustments were needed.
The issue then is whether Respondent’s adjustment of the
copayments was due to the Union’s organizing effort23 or

23 There is no evidence that any of Respondent’s managerial staff
was aware that one of the items in the Union’s signup petitions was
health related. See the GC Exh. 20 series where the Union says the
whether it was a step which Respondent would have taken in
the ordinary course of its business.
2. Analysis regarding the copayment benefit
It is almost self-evident today that if an employer grants a
benefit in order to dissuade its employees from seeking union
representation, he violates Section 8(a)(1) of the Act. The Su-
preme Court held in 1964 that such a grant during the pendency
of an NLRB election petition was timed to influence the out-
come of the representation election and a violation of Section
8(a)(1). NLRB v. Exchange Parts Co., 375 U.S. 405. Although
the case was decided in an election petition context, the concept
was quickly recognized as applying to the organizing drive
itself. See Famous-Barr Co., 174 NLRB 770 (1969).
In addition, Famous-Barr applied the principles set forth in
McCormick Longmeadow Stone Co.,24 to an organizing cam-
paign rather than simply to the preelection critical period. In
McCormick, the Board adopted Trial Examiner Reel’s decision
which held: “[A]n employer’s legal duty in deciding whether to
grant benefits while a representation case is pending is to de-
termine that question precisely as he would if a union were not
in the picture. If the employer would have granted the benefits
because of economic circumstances unrelated to union organi-
zation, the grant of those benefits will not violate the Act. On
the other hand, if the employer’s course is altered by virtue of
the union’s presence, then the employer has violated the Act.”
See also J. & G. Wall Baking Co., 272 NLRB 1008, 1012
(1984).
Indeed, in American Sunroof Corp., 248 NLRB 748
(1980),25 the Board observed that it “has long held that the
granting of benefits during an election campaign is not per se
unlawful where the employer can show that its actions were
governed by factors other than the pending election. [Citations
omitted.]” It went on to say that an employer can meet his
burden by showing that the benefits granted were part of an
already established company policy and that the employer did
not deviate from that policy upon the advent of the union.
Later, in Wm. T. Burnett & Co., 273 NLRB 1084, 1091
(1984), the Board adopted Judge Brandon’s statement that
grants of benefit during union election campaigns raise a strong
presumption of illegality. More recently, in Holly Farms
Corp., 311 NLRB 273, 274 (1993),26 the Board said that it does
not rely upon a presumption of illegal motive from such a
grant, but will draw an inference of improper motivation and
interference with employees’ free choice from all the evidence
presented and from the employer’s failure to establish a legiti-
mate reason for the grant.

employer should agree to eight bullet points, one of which was “a liv-
able family wage with quality health benefits and retirement with dig-
nity.” If improved health benefits was a union talking point with the
employees, it was included with improved wages and mixed with a
myriad of other issues. It is has not been shown that Plath was aware of
any those points when in May he directed that the copayment issue be
studied. Certainly the Union had not identified the size of the copay-
ment as an issue. Therefore, he could not have been responding to
anything the Union had said.
24 158 NLRB 1237, 1241 (1966).
25 Enfd. in pertinent part 667 F.2d 20 (6th Cir. 1981).
26 Enfd. 48 F.3d 1360 (4th Cir. 1995), affd. 517 U.S. (1996).
WASHINGTON FRUIT & PRODUCE CO. 1247
Keeping these varying approaches in mind, I am obligated to
find that the General Counsel has at the very least established
an inference that Respondent’s grant of the reduced copayment
benefit violated the Act. It occurred after the Union’s organiz-
ing drive was known to have begun. It was aimed at all its
employees including those in the bargaining unit which the
Union sought. Moreover, it occurred the day after a union
demonstration in which it demanded recognition.
Since the evidence here only creates an inference and not a
presumption, in order to rebut that inference Respondent needs
only to present evidence showing that it would have done what
it did whether or not the Union was on the scene or that it had a
legitimate business purpose unrelated to union organizing.
Here, I must conclude that its unchallenged evidence is suffi-
cient to defeat the inference of illegality raised by the General
Counsel. First, in May 1997, a time period during which Re-
spondent normally focused on benefit increases, Plath put into
motion a course of action whose natural end was the decreased
copayment benefit. He began his investigation by contacting a
local employer association to determine whether or not his
company offered competitive copayment rates for its employ-
ees. That question was not definitively answered until mid-
July.
In July, Reed provided him with the necessary written
documentation which Plath and Tommy Hanses could follow.
Hanses used it as a roadmap to propose changes which were
consistent with the industry practices. Respondent is in compe-
tition for employees with dozens of other apple packers in the
Central Washington area. It is an entirely appropriate business
decision to become and remain competitive with like employers
insofar as fringe benefits are concerned.
While it is true that in May, when Plath decided to investi-
gate the circumstances, the Union was well into the process of
collecting signatures, the timing of Plath’s decision does not
appear to be in response to the Union’s activity. In addition,
his announcement of the change on August 13 is fully explain-
able by the timing of when the written survey came to him,
mid-July, Tommy Hanses’ completion of the project and by the
timing of their overlapping vacations. When Plath returned
from vacation on Monday, August 11, Hanses’ work on that
project had been completed and was waiting in his inbox for
action. All Plath did thereafter was to approve it and send it
through the clerical process for finalization. That process no
doubt occurred on Monday and Tuesday (perhaps interrupted
on Tuesday by the march) with distribution of the notice occur-
ring on Wednesday.
Furthermore, Respondent notified the employees in a neutral
manner, as the notice (GC Exh. 31) made no reference whatso-
ever to the union organizing campaign. It appears to have been
distributed in the same manner as all other normal employment
matters were communicated to employees.27 It all seems per-

27 Employees did not connect the change to the Union’s presence.
Employee Pam Smith, one of the leading proponents of the Union
testified:
Q. (BY MR. CARROL) All right. Now with respect to the
health plan, you don’t know why, do you, the cost of the health
plan changed?
A. No.
fectly consistent with the Board’s approach in American Sun-
roof, supra.
Finally, one cannot help but notice that the change in co-
payment rates affected only a few. Barely 14 percent of the
eligible employees were covered by the plan from the outset.
Fewer than that chose the type of coverage affected by the rate
change. While the record is not clear, it seems likely that that
number is less than 10 percent. In such circumstances, it is
difficult to conclude that the change had a great impact on the
employees the Union sought to represent.
Considering the entire matter as a whole, I conclude that the
General Counsel’s inference of unlawfulness has been rebutted.
Both the purpose and the timing are credibly explained on neu-
tral terms. Respondent proceeded as if the Union were not in
the picture, thereby complying with the Board’s rule in Fa-
mous-Barr, supra. The affected number of employees was
quite small and Respondent never in any way connected the
benefit to the union organizing. Moreover, no representation
election petition was pending,28 so the timing cannot be in-
ferred to have been have been for the purpose of influencing an
election outcome.29 Finally, if Respondent were seeking to
dissuade employees from union representation it would not
have targeted such a small group. Under those circumstances,
the conduct may not reasonably be seen as tending to interfere
with the free exercise of employee rights under the Act. Cf. El
Rancho Market, 235 NLRB 468, 471 (1978). Accordingly, I
conclude that this allegation of the complaint should be dis-
missed.
L. No-Solicitation Rule Enforcement
1. Pam Smith
Pam Smith has worked for Respondent for approximately 23
years. For the most part she has served as a sorter/packer.
Since 1992 she has been paid forklift wages (a premium of
about 70 cents per hour over packer scale) because she was on
call to serve as a parts runner. This meant that Smith would
report to her day-shift job, most likely packing, and would
work at that task until called to pick up or deliver parts. She
visited local vendors and suppliers and nearly every one of
Respondent’s buildings in both Yakima and Union Gap. She
was often able to use a company pickup truck for that purpose,
but sometimes was obligated to use her personal vehicle when
the pickup truck was unavailable. She usually took instructions
from Mel Sager. She is in her fifties and is considered a highly
responsible employee.
Smith became active in union organizing early on. She was
one of five or six employees who were particularly active. She
solicited cards, attended union meetings, urged others to do so,
and had responsibility for communicating union ideas to the
English-speaking employees. She also wore union apparel,
including union buttons and hats.
On September 4, Smith was called to deliver an electric mo-
tor to the Union Gap plant. That plant is used in the springtime,
as previously noted, for cherry packing but it also serves to

28 The Union did not file its election petition until November 20,
over 3 months later.
29 B & D Plastics, 302 NLRB 245 (1991), and cases cited.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1248
store apples. When functioning as an apple warehouse, it is
usually manned by two individuals. In September, those two
were Clayton Johnson and Gabriel Villarreal. Johnson appears
to be in charge of the plant and has described himself as a su-
pervisor, although he does not meet the definition of a supervi-
sor as set forth in Section 2(11) of the Act. At best he would be
a lead person.
That day Smith had been obligated to use her personal vehi-
cle for the delivery. The motor was heavy and had been placed
in the trunk of her vehicle by someone else. When she arrived
at the Union Gap facility she says she first encountered Villar-
real who was outside near the entry. They greeted one another
and Smith told him that she had a motor for Clayton Johnson.
Villarreal called for Johnson who came outside a few moments
later. In the meantime she and Villarreal engaged in some
small talk. Johnson came out, lifted the motor from the trunk
and then carried it inside. Johnson says she accompanied him
into the warehouse speaking to him about the Union as they
went, making him walk excessively slowly. She denies it, say-
ing she remained outside. He says the workbench where he
placed the motor was only 20 feet from her car, but that be-
cause of the baby steps he says she used, it took 2–3 minutes
for him to reach the bench. I do not credit him on the point.
The motor only weighed about 20 pounds and he could walk as
fast as he chose to. Moreover, that distance would have been
no impediment to her talking to him as she could easily have
been heard over that distance even had she remained by the car
as she said.
While there is some dispute about what actually occurred
and what Smith said, it is clear from the evidence that Smith
did not interfere with the work of either Villarreal or Johnson
during this portion of the encounter. The small talk between
Smith and Villarreal had apparently triggered Smith to take her
break and she smoked and drank coffee while waiting for John-
son to take care of the motor. There is evidence that Villarreal
turned the conversation to the Union as they waited for Johnson
by saying that he liked Smith’s union T-shirt. At some point
when Johnson returned she asked both what they thought of the
Union. Johnson says that he walked away at that point. Villar-
real told her that he was happy with the job and got along well
with Sager.
At some point, Johnson asked her if she could obtain an odd-
sized bolt from the Eagle Hardware store located about two-
thirds of a mile away. After some discussion, Johnson decided
it would be best to send Villarreal with her so he could be cer-
tain that the correct bolt was obtained. The bolt was a replace-
ment for one on the backrest of Villarreal’s forklift.
Accordingly, Smith drove Villarreal to and from the hard-
ware store, taking 10–15 minutes30 to do so. I conclude that the

30 When the length of time involved in this round trip became an is-
sue, Smith reenacted it, accompanied by NLRB Attorney Botero.
Smith testified that the reenactment of the round trip, including a few
minutes to buy the bolt, took 9 minutes and that the entire round trip
was only 1.3 miles. Frankly, the brief time spent surprises me because
Eagle Hardware stores (a regional chain in the Pacific Northwest) are
large warehouse type stores. A customer would be extremely fortunate
not to have to wait in a checkout line. I think Smith’s original testi-
trip took about 15 minutes. Whether the trip took 9 minutes as
estimated by Smith, or 20 minutes, the maximum which would
be expected, Smith clearly returned Villarreal to his work-
station within an acceptable timeframe. During this period,
Smith says Villarreal continued the conversation about the
Union asking if having a union would mean more money. She
says she told him that if he was interested he should attend a
union meeting.
I limited Villarreal’s testimony, which occurred on the 51st
day of trial, to describing the length of the trip and what he
reported to Johnson after it was over. It is apparent from the
testimony of both Villarreal and Smith that there is some per-
sonal animosity between them. Furthermore, I found Villarreal
to be more hostile to the proceedings than necessary. At some
points he seemed to be evasive.
Indeed, although that trip might possibly have been accom-
plished in the 9 minutes of Smith’s reenactment, realistically
such a trip could be expected to take about 20 minutes without
drawing any concern for the absence. Villarreal describes
Smith as driving extremely slowly and prolonging the trip, even
though he says it took only 15 minutes. Even if she did drive
slowly I fail to see the point of his testimony unless it was sim-
ply to malign Smith. He did not return late nor is there any
suggestion that any of his work was delayed as a result of slow
driving. Villarreal’s approach to describing the facts is ques-
tionable.
When Respondent’s counsel asked Villarreal to describe
what he told Johnson about what occurred, he gave some testi-
mony which can only be described as missing the point. In-
stead of describing anything, he says he asked Johnson if Smith
had asked him the same questions. Furthermore, he used words
which seemed out of character for they have legal meanings. In
fact, he admitted later that those words were not used during his
conversation with Johnson. Villarreal testified:
Q. (BY MR. CARROL) Okay. Near as you can recall,
what did you tell Clayton [Johnson] about what had hap-
pened with Ms. Smith.
A. (WITNESS VILLARREAL) I just asked him if she had
asked him some of the same questions as—that she asked
me. And that if he knew that, you know, what—what was
going on as far as her soliciting on—you know, company
hours—the union. Or organizing one.
Q. Okay. So you asked Mr. Johnson that?
A. I just asked him if he—if she had the same—if she
asked him any of the same questions.
MR. CARROL: Did you tell him that that’s what she
had said to you?
MR. GIBBS: Objection, leading.
ADMINISTRATIVE LAW JUDGE KENNEDY: Just—just—
yeah. Sustained. What did you say? What did she say?
Q. BY MR. CARROL: Oh, okay. What did you say in
addition to what you’ve already said to Mr. Johnson about
what Pam Smith said to you?
A. He just said that—

mony that she took 10–15 minutes is more probable. Villarreal also
says it took about 15 minutes.
WASHINGTON FRUIT & PRODUCE CO. 1249
ADMINISTRATIVE LAW JUDGE KENNEDY: No, what did
you say?
THE WITNESS: I just asked him if he—if she asked any
of these same questions.
Q. BY MR. CARROL: Okay.
A. And that it was kind of funny.
ADMINISTRATIVE LAW JUDGE KENNEDY: Well, okay,
now, what—did you describe the questions to him?
THE WITNESS: I just told him that on top of that she
had given me a ride over and solicitated [sic]—well, asked
me if I knew—if I—how I would vote on a union and on
to say other—asking me other questions about how I felt
about it. I just, in response, told him that I told her I didn’t
want any damn union and that—then I’d asked him if
he’d—if she’d ever tried any kind of crap with him, you
know, if she ever—I told him that she’d put her hand on
my leg and told me that they needed every vote they could
get.
ADMINISTRATIVE LAW JUDGE KENNEDY: Okay.
Q. BY MR. CARROL: Okay. Just keep thinking, did
you tell him—ha—have you told us everything that you
reported to Mr. Johnson about what Pam Smith said or
did?
A. Well, it’s been such a while back that it’s hard for
me to recall exactly what exactly I said.
Q. Uh-huh.
A. But I just let him know what had happened, and I
told him exactly what I had said, what I had stated. You
know, and I asked him a question if—if she had any—any
of the same questions for him or how he felt—
Q. All right.
A. About being harassed or badgered about—on—you
know, during his working hours about the union.
. . . .
Q. Just focus in, Gabriel, and just see—see if you can
remember any other words that you might have said to
Clayton about that whole incident.
A. Just that I thought it was kind of crummy that she
put her hand on my leg.
Q. All right.
A. And that I didn’t expect that.
Q. Any—anything else?
A. That was kind of what really stayed on my mind.
That was really all I could remember about the—the inci-
dent.
Q. All right. Did you tell Mr. Johnson that that was
how you felt?
A. I just told him I felt crappy about it, yeah. And I
thought it was uncalled for.
Q. All right. Did—did you use the actual word “solic-
ited” or “solicitated” when you made your report, or did
you say it [—] another word?
A. I don’t think I said “solicitated.” I think I just said
that—that she tried to—“Did she try to ask you some of
these same questions she asked me,” and then I went on to
say something like, I thought that it was, you know, a—a
real point that I let it—I had to let somebody know—just
that I had to let somebody know what was going on.
Johnson’s testimony about what Villarreal told him is rather
brief:
THE WITNESS (CLAYTON JOHNSON): [Villarreal] told
me that she was—she asked him to join the union and told
him that he’d—asked him how much he made an hour and
he told her it was none of her business, and said, “Well,
you know, you’ll—you’ll make more wi—if the union
comes in.” And then he said that she grabbed him by the
knee and gave him a little squeeze on the knee.
Q. BY MR. CARROL: Anything else Gabriel reported to
you about this conversation?
A. That’s all I can remember.
Q. All righty. And did you say anything to Gabriel at
that time?
A. I said—well, I told him about the conversation that
I had with Pam.
According to Johnson, he and Villarreal talked about what
had happened and Johnson decided to report it to Tommy
Hanses. Accordingly, he phoned Tommy. He testified: “Yes, I
told Tommy everything that we just said . . . Yeah, everything
that I—everything that Gabriel told me and—and my conversa-
tion with Pam.”
A week later, on September 10, Tommy Hanses prepared
General Counsel’s Exhibit 37, a warning. Threatening dis-
charge for a future offense. It states: “Pam was soliciting the
union during work hours at the Union Gap plant. It is a viola-
tion of company policy to solicit during work hours. Future
solicitation during work hours will result in dismissal.” It was
presented to Smith on September 11 and she signed it. She was
also removed from the parts running job because, as Hanses
said, “Well, being parts runner, she’s able to leave the—the
plant and go out to different areas of the warehouse and differ-
ent facilities and she’s not able to be under supervision when
she’s doing the job.”31 Simultaneously, Smith lost the forklift
wage premium and was assigned only to duties within the
warehouse.
2. The warnings to Maria (Chuy) Andrade, Rosa Salas, and
Sonia Abundiz
On October 23, three packers were issued warnings by
Tommy Hanses and Mel Sager. They were Chuy Andrade,
Rosa Salas, and Sonia Abundiz. The warnings threaten dis-
charge if a similar occurrence were to take place. The warnings
are identical. They state: “Complaints from several employees
for soliciting the Union during worktime.”
Through an interpreter, Tommy Hanses explained, according
to Sager, “He said . . . that the reason that they were—that we
brought them up to the office was because of our no solicitation
or distribution policy, and that there was some complaints from
some of their co-workers that they were being harassed about
the union.” They were directed to sign the slips; if they did not
do so they would not be permitted to return to work. Andrade
became upset and called the Union to get advice. After speak-

31 Sager did not immediately remove her from parts running, but did
so shortly afterwards when Plath asked why she was still doing it. He
told Sager that she needed to be removed from that job.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1250
ing to someone there she signed, but wrote a protest at the bot-
tom, saying that the accusation was not true. The other two
signed as well, but did not write a protest.
According to Sager, the entire incident began the same day
when Day-Shift Sorting Supervisor Sheri Dallman32 advised
him that five employees had complained to her that they were
being harassed by Andrade, Salas, and Sonia Abundiz regard-
ing the Union. He said: “Sheri just—she told me there was a
problem in the sorting booth, and I go, ‘What’s the problem?’
and she said some of her ladies had complained to her about
while they were working they were getting harassed about the
union, signing up for the union.” According Sager, he under-
stood Dallman to be saying it wasn’t the first time. He reports
Dallman saying, “that the ladies didn’t want to say anything,
because they were afraid of retaliation from these ladies—these
other ladies.” He recalled two of the five complainants as be-
ing Flora Zink and Maria de Bautista but was unable to recall
the others, assuming Dallman actually mentioned them by
name.
Almost immediately, Sager called Tommy Hanses on the
phone to report what Dallman had said. He testified, “I told
him that Sheri Dallman just—just left my office and said that
there were some complaints about some of the ladies during
working hours harassing the—harassing some of the other la-
dies about union—about the union.” He reported, too, that it
wasn’t the first time.
On cross-examination he testified:
(BY MS. BOTERO) And now, you testified that Sheri
told you that these three women were harassing other em-
ployees about the union. And I believe you also testified
that they were talking to them about signing up for the un-
ion. Do you recall that recent testimony you gave?
A. Yeah. Signing cards or something. They were stu-
pid if they didn’t.
The parties stipulated that in his NLRB affidavit Sager never
mentioned anything about these three employees relative to
signing cards. However, I do not think the witness was embel-
lishing here. Instead, he was recalling that the “harassment”
consisted of one or more of the three employees telling the
others that they were ‘stupid’ not to sign. Indeed, there is no
suggestion that any of the three had actually handed signature
petitions to any of the five during worktime. In fact, Sager
seems to have understood that the entire incident was only one
of union talk.
How much of that understanding found its way to Tommy
Hanses is not clear. Even so, Hanses never spoke to Dallman
to find out what she had observed first hand; neither did he
speak to either the five “harassees” or any of the three “harass-
ers” to inquire about what had happened, if anything. Instead,
he immediately drew up the warning slips.
3. Analysis regarding no-solicitation/no-distribution rule
While the fact patterns are somewhat different in the two in-
cidents described above, Respondent has dealt with them in an

32 Dallman was called as a witness by the General Counsel, but was
not asked what, if anything, she knew about the events leading up to the
warnings.
identical fashion. It has concluded that both incidents consti-
tuted violations of its no-solicitation/no-distribution rule. In-
deed the rule might also be characterized as a “no-solicitation,
no-distribution, no-promotion” rule. The prohibition on promo-
tion, together with a lack of understanding regarding what con-
stitutes solicitation, has led to a restrictive view of what the rule
actually bars. Respondent has argued that talking about the
Union is solicitation as intended by the rule. Respondent’s
contention is unpersuasive. Indeed, Respondent has no blanket
rule prohibiting talking on the job.33
First, it should be understood that the while Section 7 ap-
pears to grant employees the absolute right to engage in union
organizing at all times and in all places, both the Board and the
courts have recognized that working time is for work and em-
ployees do not have the authority to set their own terms and
conditions of when they will work and when they will not.
Indeed, Justice Frankfurter said in NLRB v. Steelworkers
(Nutone, Inc.), 357 U.S. 357, 362 (1958): “Employer rules pro-
hibiting organizational solicitation are not in and of themselves
violative of the Act, for they may duly serve production, order
and discipline.” The Board has long approved of such rules.
Peyton Packing Co., 49 NLRB 828, 843 (1943); Stoddard-
Quirk Mfg. Co., 138 NLRB 615 (1962); and Our Way, Inc., 268
NLRB 394 (1983). The last is the Board’s most recent clarifi-
cation of its recognition that “working time is for work.” It is
therefore clear that the primary, if not only, purpose of such a
rule is to keep employees at work when they are supposed to be
working. See also Gooch Packing Co., 162 NLRB 1, 6–7
(1966), where Trial Examiner Goerlich said in discussing the
factors to be considered to make out a violation: “(5) Prior to
the advent of the Union a breach of the so-called no-solicitation
rule was limited to interference with production; thereafter,
‘talking union’ became a breach even though it did not consti-
tute an interference with production. [Footnote omitted.] (6) At
the time the so-called no-solicitation rule was invoked there
was no evidence of the impairment of production by union
solicitation.”
Two things can be gleaned from Trial Examiner Goerlich’s
commentary. He first makes the point that such a rule’s pur-
pose is to prevent disruptions to work; second he says that if the
rule is applied as a warrant for interfering with the Section 7
right of employees to talk about the union, such an interpreta-
tion will be deemed to be unlawful absent a showing of actual
interference with an employee’s work. Therefore, the fact that
a lawful no-solicitation rule may be established does not mean
that its enforcement cannot be unlawful. The Board has faced
the problem frequently.
Often the question depends on how an employer defines the
word “solicitation. Here, Respondent has characterized solici-
tation” to mean talking about the Union during worktime. In
two cases Judge Dyer was faced with the same question. Both

33 The evidence is clear that employees who work on the lines talk to
one another almost constantly throughout the day. Other workers also
talk to one another although the circumstances may be more difficult
due to the nature of their jobs. It is simply more difficult for forklift
operator to talk to another forklift operator as they drive around the
facilities.
WASHINGTON FRUIT & PRODUCE CO. 1251
analyses were adopted by the Board. The first was Interna-
tional Signal & Control Corp., 226 NLRB 661, 665 (1976).
There he said:
The word solicitation is used fairly loosely in a number of ar-
eas. Here “solicitation” is defined by Supervisor Jacobs as
meaning talking favorably for a union. Solicitation ordinarily
means that someone is asking an employee to join union by
signing a union authorization card; similarly, charitable so-
licitation means asking someone to contribute to a charitable
organization or in the commercial context exhibiting a prod-
uct or a picture of a product and asking the person to buy it.
That is not the same thing as talking about a subject. Tuley’s
talk to Trostle, Scott, and Frey did not occur after an investi-
gation which led Respondent to believe they were guilty of
violating company rules, but rather was a blanket warning to
them not to “harass” employees by telephone calls to their
homes or by solicitation during working hours. Tuley’s defi-
nition of harassment included a person saying something to
another person which the second person did not want to listen
to or which irritated that individual. While Tuley may have
thought he was justified in his comments from what his su-
pervisors allegedly told him, it would appear from the context
that Tuley overspoke himself, since the implicit accusations
were not founded on knowledge of the guilt or innocence of
the three employees on everything of which he accused them,
and they were discriminatorily inhibited by his speech from
exercising their Section 7 rights. I conclude and find that
Tuley’s speech to the employees and Respondent’s discrimi-
natory application of the no-solicitation rule both violate Sec-
tion 8(a)(1) of the Act. [Emphasis added.]
Later, in W. W. Grainger, Inc., 229 NLRB 161 (1977), enfd.
582 F.2d 1118 (7th Cir. 1978), Judge Dyer analyzed it this way:
The main question in this case is whether Respondent
discharged Talaber for “soliciting for a union” or for
merely talking about a union and if such action was taken
in enforcement of its no-solicitation rules. A supportive
question thus raised is, “What is solicitation?” From the
evidence in this case it seems clear that Respondent
equated talking about a union with “solicitation” and once
it found a “solicitation” violation which it felt was “fla-
grant,” moved to discharge the main union proponent.
Therefore, it has been found that Respondent promulgated
and enforced overly broad, invalid no-solicitation rules in
violation of Section 8(a)(1) of the Act and, by using its
definition of “solicitation,” discharged Talaber in violation
of Section 8(a)(1) and (3) of the Act.
. . . .
It should be clear that “solicitation” for a union is not the same
thing as talking about a union or a union meeting or whether a
union is good or bad. “Solicitation” for a union usually
means asking someone to join the union by signing his name
to an authorization card in the same way that solicitation for
a charity would mean asking an employee to contribute to a
charitable organization or having the employee sign a chance
book for such a cause or in the commercial context asking an
employee to buy a product or exhibiting the product for him
from a book or showing the product. [Emphasis added.]
Clearly it takes something more than just talking to qualify
as “solicitation.” Obviously the Board, accepting Judge Dyer’s
analyses, agreed that somehow work had to be stopped by the
alleged solicitor to make out a violation of the rule. It is here
where I have trouble with Respondent’s “no-promoting” por-
tion of its rule. Rather clearly if solicitation requires an inter-
ference with someone’s work, “promoting” a cause does not.
Promoting can be, and most likely is, through talking. There-
fore, when it says it is barring solicitation, defined simply as
talking, it is also invoking the rule against promoting a cause.
Both bar talking.
Although in theory it is conceivable that a valid rule against
any talking whatsoever during worktime might be valid, for its
purpose might be to enhance production, in practice it is not
very likely, for a no-talking blanket would be impossible to
enforce at most businesses. In any event, company rules which
prohibit talking about the union during work while permitting
talk about any other subjects violate the Act. Jennie-O Foods,
301 NLRB 305, 316 (1991); Meijer, Inc., 318 NLRB 50, 57
(1995). Indeed, where an employer imposes a restriction on
employees’ conversations, it violates Section 8(a)(1) of the Act
if the talking restriction applies only to union-related talk.
Opryland Hotel, 323 NLRB 723 (1997), citing Teksid Alumi-
num Foundry, 311 NLRB 711, 713–714 (1993); T & T Ma-
chine Co., 278 NLRB 970 (1986); Orval Kent Food Co., 278
NLRB 402, 405 (1986); and Cerock Wire & Cable Group, 274
NLRB 888, 897 (1985).
In one of the two incidents described above Respondent
made an effort to demonstrate that the so-called solicitor inter-
fered with the work of two other employees. In the other, it
made no significant effort, only attempting to characterize the
employee conduct as “harassment.” Indeed, in the latter inci-
dent Respondent made no real effort to investigate what had
actually happened.
In the Pam Smith incident, Johnson asserted that Smith
somehow impeded his reentry into the building while he was
carrying the motor. However, even under his version her so-
called baby steps could not have appreciably slowed him. He
only had to walk about 20 feet in total. How Smith could have
slowed him down from that task escapes me. Assuming she
was talking about the Union the same time she was accompany-
ing him hardly qualifies as any sort of interference with his
duties.
Similarly, Villarreal’s testimony fails to persuade me that
anything untoward occurred. Johnson directed him to ride over
to the Eagle Hardware store a short distance away to obtain a
part. During the drive, according to him, Smith asked him
questions about his pay, suggesting that union representation
could possibly increase the amount. He says that she somehow
interfered with his personal space by placing her hand on his
knee to emphasize the need for unionization. This interference,
he says, constituted harassment. Moreover, he asserts that she
deliberately drove slowly so that she could extend her con-
versation with him.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1252
First, Villarreal is 34 years old, is 6-feet tall and weighs
about 250 pounds. Smith is in her 50s, is of relatively slight
build and hardly an imposing figure. However, she is a persis-
tent individual. I have no doubt that Smith pursued Villarreal
for the purpose of having him sign up with the Union. There is
no evidence, however, that she presented him with such a
document. Indeed, there is no evidence that she had such a
petition with her at that time. Instead, her efforts were simply
talk. She sought to persuade Villarreal to attend a union meet-
ing if he wanted to learn more about the benefits of unioniza-
tion. She undoubtedly did inquire about his wage, no doubt
asserting that it could be better through collective bargaining.
For some reason, Villarreal, despite his own assertive per-
sonality, was unable to stop her from continuing her inquiry.
He claims that he told her he did not want to talk about it, but if
he had, I think she would’ve honored that request. She did not
testify that he made such request and it seems unlikely that the
request was ever made. Certainly their conversation did not
slow their progress to and from the hardware store. The entire
round trip, including the purchase, took only 15 minutes. It
would have been unrealistic for Johnson or any manager to
assume that the trip could have been shorter. Therefore, insofar
as Respondent is concerned, Smith’s errand with Villarreal was
carried out in a timely manner. No interference with produc-
tion occurred. Therefore, Respondent’s contention that Smith
interfered with Villarreal’s duties is misplaced.
Moreover, Villarreal’s contention that she somehow harassed
him is unpersuasive. At worst she earnestly urged him to con-
sider learning more about what the union could or could not do
for him. Patting him on the knee could hardly have been mis-
taken for anything other than in an altruistic and charitable way.
A reasonable acquaintance, would not have taken it any other
way. I do not think that Villarreal actually responded to her
overture in the self-offended way which he describes. In fact,
Johnson did not describe Villarreal’s reaction in such terms.
I conclude that all Smith did during these two encounters
was to speak about the Union and its benefits in a persuasive
way. She did not interfere with their work nor did she take an
excessive amount of time so far as her own work was con-
cerned. Respondent’s warning to her was therefore unlawful
and in violation of Section 8(a)(1). She did not violate Re-
spondent’s no-solicitation rule. In effect, Respondent was im-
posing a no union talk rule against Smith. Such a rule clearly
violates the Act. See Opryland Hotel, supra. Her demotion
immediately followed and, because it was connected to the
improper application of the no-solicitation rule, it too, violated
Section 8(a)(1); moreover, since she was demoted for engaging
in the union activity of talking about the Union, protected activ-
ity, the demotion became a hire and tenure issue within the
meaning of Section 8(a)(3);34 thus, her demotion violated Sec-
tion 8(a)(3) as well as Section 8(a)(1). Direct Transit, 309
NLRB 629, 633 (1992).

34 Sec. 8(a)(3) of the Act states in pertinent part: “It shall be an un-
fair labor practice for an employer—by discrimination in regard to hire
or tenure of employment or any term and condition of employment to
encourage or discourage union membership in any labor organization.”
The same observations can be made for the warnings issued
to Andrade, Salas, and Sonia Abundiz. The only report which
was made about the incident came from Dallman who did not
testify about the incident. Moreover, there is no evidence that
any manager spoke to the five offended employees or to the
three employees who were penalized about the incident(s).
Sager simply accepted Dallman’s word that five employees had
complained that they were being harassed about the Union, but
made no effort to determine what constituted the harassment.
Instead, he concluded that their talking about the Union quali-
fied as harassment. Again, no effort was made to determine the
actual facts. Instead, Respondent invoked the no-solicitation
rule. It interpreted that rule to bar union talk. There is, of
course, absolutely no evidence that this talk interfered with the
work of any of the sorters on the line. Moreover, Sager’s sec-
ondhand recollection that one of the women may have told the
five complainants that they were “stupid” not to join the Union
cannot be characterized as anything other than part of the de-
bate over whether or not the employees should unionize. It did
not carry any threat, but was only the expression of an opinion.
In that circumstance, the warnings violated Section 8(a)(1) of
the Act. They also violated Section 8(a)(3) of the Act, for the
warnings weakened the tenure of these employees, having been
threatened with discharge upon receipt of the next warning.
Litton Microwave Cooking Products, 300 NLRB 324, 325
(1990). Their tenure was lessened because of their protected
union talk. Jennie-O Foods, supra; Bryant & Stratton Business
Institute, 321 NLRB 1007, 1028 (1996); McClain of Georgia,
Inc., 322 NLRB 367 (1996).
M. Christina Bautista and Rigoberto Flores
Rigoberto Flores was hired in October 1997. He was as-
signed to the cold room under the direction of Christina
Bautista. He testified that sometime in November, apparently
during the last 2 weeks of the month, he and two other cold
room employees, Martin Alvarez and Clemente Gomez, halted
work momentarily to discuss how certain tasks should be
shared. Bautista saw them talking together and, according to
Flores, told them that she “did not want them having any union
meetings there in the cold room.” None of the three responded
and Bautista then approached a fourth worker, Antonio Salazar,
who had been working off to the side. He had not been a part
of the group and had not participated in that conversation.
Nonetheless, Salazar was known by Bautista to be a union ad-
herent. Salazar regularly wore union paraphernalia and cloth-
ing.
Flores testified that Bautista spoke to Salazar for a few min-
utes, although he was unable to hear what she said, and then
returned to where the group was still standing. He recalls her
saying, “Antonio Salazar had made her upset with him, and she
would like to be a man so that she could take out her anger with
him.”
Neither Bautista nor Salazar testified about the incident.
The General Counsel contends that this event constituted an
unlawful interrogation and a threat against employees because
of their union sympathies and the union sympathies of other
employees. Respondent asserts that Flores’ testimony fails to
make out an 8(a)(1) violation of any kind. It argues that
WASHINGTON FRUIT & PRODUCE CO. 1253
Bautista was simply urging employees to return to their work,
reminding them that union activity was not permitted during
worktime.
I view the matter somewhat differently. Rather clearly
Bautista saw the three speaking together and observe that they
were not actually working with the apple pallets to which they
were assigned. Instead of asking why they had stopped, which
would be the first line supervisor’s normal question, she told
them that there were to be no union meetings while working.
Whether she intended it as a jest, or was referring to their at-
tending union meetings, or intended it as some sort of gibe at
Salazar is unclear. I do not agree with Respondent that her
remark was simply the enforcement of the no-solicitation rule
or direction that employees should not stop working. It seems
to be more than that. If she had simply wanted the employees
to return to work, she would have said something to that effect.
Instead, she seems to have wanted to send a message. I think
the most likely message that she was sending was “I have in-
structions to keep people from talking about the union while
they are working. If I see groups of people talking I will as-
sume that they are talking about the Union even if they are not,
and they are subject to discipline for doing so.”
Unlike the General Counsel, I do not find her remark to have
been an interrogation. It was not intended to, and did not, so-
licit any response. Nor did it get one. Instead, the remark was
intended as an intimidation, even if it was meant as a bad joke.
In essence she was threatening employees with discipline in the
event that they were perceived to be talking about the Union at
work. In a very real sense, her remark was a continuation of
Respondent’s view that it was against the no-solicitation rule to
talk about the Union during worktime. Plath, Tommy Hanses,
and Mel Sager had interpreted similar conversations in the
same fashion over the previous 2 months. Employees talking
among themselves, particularly in circumstances where manag-
ers could not hear, had become something to fear.
I observe that the Union had filed its NLRB election petition
on November 20, shortly before this conversation occurred.
During this time Respondent was beginning to construct its
campaign to persuade the employees to vote against union rep-
resentation. It was sensitive to any debate occurring in the
workplace in circumstances which it did not control. For that
reason Respondent wished to squelch union conversations
among the employees. It knew that it probably could not inter-
fere with two employees talking, but it knew that if more than
two were talking such a conversation would have a greater
likelihood of being about the Union than any other. That is
what attracted Bautista to the conversation in the first place—
three employees were conversing and Bautista could not hear
what they were saying. Without waiting for an explanation, she
injected herself and Respondent’s policy of interdiction into the
conversation.
Accordingly, I conclude that Bautista’s comment constituted
an unlawful threat within the meaning of Section 8(a)(1).
Insofar as Bautista’s commentary on Salazar is concerned, I
find that it is not cognizable under the Act. Flores did not hear
their conversation and could not testify about it. When she
returned, sputtering about Salazar, her remark was not associ-
ated with the Union in any way. Salazar was an energetic un-
ion activist and was no doubt wearing his union paraphernalia,
but whatever conversation she had just had with him is unlikely
to have been union related. If it had been, she would have said
something about it to the three whom she had just threatened.
To the extent the complaint is aimed at her anger against Sala-
zar for unknown reasons, the evidence is insufficient to warrant
any unfair labor practice finding.
N. The Discharge of Ana Guzman
On November 12, Respondent discharged Ana Guzman fol-
lowing an incident which had occurred the previous evening.
The discharge slip, signed by Tommy Hanses, describes the
reasons given: “After a thorough investigation it is clear that
Ana Guzman purposely [sic] let a tray of apples fall to the
ground at 11:20 p.m. last night. She has had repeated oral
warnings and a written warning stating that this is absolutely
prohibited and will be discharged if this occurred again.”
Guzman signed the slip under protest asserting that the real
reason was her union activity.
The explanation in the warning slip is somewhat misleading.
First, there is no evidence of “repeated oral warnings” in this
record and second, as noted previously in section G, the written
warning given her on August 6 was for reasons prohibited by
Section 8(a)(3) and (1). Second, it is true that Guzman at some
point appears to be willing to risk her job in favor of becoming
the Union’s cause celebre (the September 9 warning) and she is
quoted by some coworkers as having asserted that employees
should not work so hard and that they should let apples fall in
circumstances which would demonstrate that there were not
enough workers to perform the job. The issue here, however, is
whether or not Respondent correctly assessed her conduct as
purposeful when it discharged her. If so, the Act will not pro-
tect her. If not, I must determine whether Respondent’s evi-
dence is sufficient to rebut the General Counsel’s prima facie
case of discrimination as set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
The underlying facts are not in dispute. That evening
Guzman was working at the end of line 35 where it was her
duty to pick apple trays from the conveyor belt, turn, and slide
the tray into a prepared shipping carton. The conveyor belt
lines are in pairs. Thus, she was working on the right side of
the 34–35 pair and immediately to her right (as she faced the
length of the belt) was line 36. Its pair, line 37, was not operat-
ing that evening. Usually, each line has two persons assigned
to it, the packer (Guzman) and an apple turner (arranger). The
employees switch positions every half hour or so. When the
incident occurred, about 11:20 p.m., Maria Cristina Herrera
was arranging apples on Guzman’s line. In addition, Herrera
was being assisted by Ramona Castillo whose primary duty was
to pack line 36. Line 36 was running slowly that evening, ap-
parently because Castillo was the only one assigned to it. As a
result she was able to both arrange and pack trays on line 36,
but still had time to assist Herrera as line 35 was running much
faster.
On the other side of Guzman were Olivia Suarez, the packer
on line 34, and Antonia Fernandez who was packing line 33.
Above them on the catwalk were the regular supervisors
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1254
Guillermina Delgado and Frederico Gonzalez, who really did
not observe the incident being several feet away. However, one
of the sorting supervisors, Kirk McGarity, had joined them and
was standing immediately above Guzman. He says he was
there “killing time.”
Unnoticed by Castillo, a tray of apples moved down line 36.
As it neared the end, McGarity called out to Guzman, the per-
son nearest the end of line 36 to warn her. She did not respond
and the apples fell into the carton, although some may have
fallen onto the floor.35 There is a great deal of conflicting evi-
dence regarding what had actually occurred. McGarity con-
cluded that Guzman had purposefully let them fall. She testi-
fied, in essence, that she heard him yell about the same moment
she heard the tray fall and that she was attending a tray of her
own and could not have reached line 36 in time to prevent the
spillage.36 Moreover, she added, it was not her line. Indeed,
Castillo made a futile effort to catch the tray as well. In answer
to McGarity’s asking Guzman why she wasn’t watching, she
simply replied she hadn’t seen it. He persisted and asked again.
She said, “I didn’t see the apples and it wasn’t my line. I didn’t
see when the apples fell.”
McGarity reported what he had seen to Eric Hanses who
then began an investigation of what had occurred. On Eric’s
request, McGarity gave him a written statement. The follow-
ing day employees who had been working nearby were called
to the office to give statements as well. Eric did not seek an
explanation from Guzman because he incorrectly believed that
her only response was that she had said it was not her line. He
then sent Guzman home for the remainder of the shift.
Later, based on his assessment of the statements, Tommy
Hanses decided to discharge Guzman. At the time he made the
decision Tommy Hanses knew that the evidence conflicted,
even without Guzman’s version, but concluded that since there
was evidence that she had declined responsibility for line 36,
and she had supposedly offered no other explanation, that
McGarity’s assessment was probably correct. In fact, however,
Guzman’s full explanation was ignored as was Antonia Fer-
nandez’ supporting (and corroborating) statement.37 It is cer-
tainly true that Guzman said that the line was not hers, but she
also said that she had not heard McGarity in time and had not
seen the tray. Furthermore, he discounted Castillo’s attempt to
accept responsibility.
One thing which Tommy Hanses did not do was to recognize
that line 35 was moving fast enough to warrant three, instead of
two, workers. Castillo did not leave her line to help Herrera

35 Fallen apples are considered culls, even if they fall into the box.
36 I accept as a fact that line employees are obligated to assist other
line employees when needed and as those needs are observed. Having
accepted that as a plant practice, however, it does not follow that re-
sponsibility for the work of others falls upon an employee who might
be in a position to assist where her own work would be disrupted and
endanger the product for which she is primarily responsible.
37 Fernandez’ statement says that when McGarity yelled, Guzman
responded that she was “taking care of my line and I didn’t see that
they were dropping from the other line.” She also testified consistently
with her statement: “She [Guzman] only replied, [to McGarity] ‘I was
packing on my line only and I didn’t see that the apples were going to
fall.’”
without reason. That being the case it is entirely likely that
Guzman was extremely busy loading trays into the cartons and
had little opportunity to watch for problems on other lines.
Another thing he did not do was to scrutinize McGarity’s
statement. On its face, it has at least one serious problem. In
the statement McGarity says that he only yelled, “hey!” at
Guzman and that she did not move in response. Since he was
not her supervisor, his was a call by an uncustomary voice, one
which did not even direct her to look at line 36. Moreover, her
lack of response is perfectly consistent with someone who was
either busy, who didn’t heed for a moment or who did not in-
stantly recognize the shout was directed to her. If she had re-
sponded to such a yell, it would have been to look up at him on
the catwalk, not to a line to which she was not assigned. Under
McGarity’s own version, set forth in his note, it is entirely
likely that McGarity’s shout either occurred too late to catch
the tray or was so vague or poorly instructive that it did not
allow Guzman time to realize the tray needed to be caught.
Hesitation, not action, was the natural response to such a call,
even if it had been heard in time. Yet, Tommy Hanses did not
consider that fact at all.
During the hearing, McGarity’s testimony rendered his entire
factual description even more unworthy of reliance. McGarity
acknowledges that he didn’t observe who was helping on
Guzman’s line; he had not noticed either Herrera or Castillo as
they turned line 35 apples. That failure suggests that he wasn’t
really watching very carefully.38 While that is understandable
since the area wasn’t under his supervision and he was only
“killing time,” it seriously undermines both his testimony and
the claim in his statement to Eric Hanses: “It was obvious that
she knew the trays were going to fall.” It is evident that
McGarity’s perception of what had transpired is suspect.39
Finally, in failing to interview Guzman herself, Hanses
blinded himself to any defense she may have had, even though
he had the evidence of one witness (Fernandez) who had heard
Guzman in English utter more than the denial of any obligation
to line 36. Fernandez had also heard Guzman say she hadn’t
seen the tray. Hanses discounted Fernandez’ version simply by
looking at the statements of the other employees, most of whom
were not able to understand or see what had actually happened.
It would also appear that Guzman had not helped herself with at
least some of her coworkers by earlier making remarks to the
effect that line personnel should let apples fall in circumstances
where the lines were undermanned. That attitude led many of
her coworkers here to simply believe that she had carried out

38 McGarity also expanded the simple “hey!” of his note to Eric to
“‘Hey, Ana, go’—this is just out of memory; I’m not sure of my exact
words, but ‘Hey, Ana, those are going to fall; go get those.’”
39 Adding even more confusion, and further lessening McGarity’s
credibility, is his statement to Eric Hanses as they discussed what had
happened, that he had been watching the tray as it came down the con-
veyor wondering when Guzman would notice it. Had the tray become
some kind of amusement to him as he idled there? Why didn’t he call
attention to it sooner? If he had, perhaps Castillo would have seen it
and taken care of it. Moreover, why didn’t McGarity include that ob-
servation in his note to Eric? If he had, what would Tommy Hanses
later have made of such information? Was McGarity setting Guzman
up for a fall?
WASHINGTON FRUIT & PRODUCE CO. 1255
that opinion in not stopping the fall from line 36. Their feelings
appear in their statements, but they cannot be accepted with
confidence as eyewitness reports. Indeed, Guzman’s view-
point, to the extent it was known by management, may have
been used in part as a justification for the shallow analysis
which Tommy Hanses gave her in this incident.
However, keeping in mind that the earlier warning to
Guzman was discriminatory, in November she was in greater
danger for discharge than she should have been. Her tenure
had been illegally weakened and she was at risk for any legiti-
mate incident which would warrant discharge for a second like
event as well as for a second discriminatory discipline. Noemi
Mendes, Guzman’s coactor in the first apple-dropping incident,
was not at the same level of jeopardy, even though both warn-
ings were their first for that type of conduct. Therefore, it is
inescapable that Respondent treated Guzman more harshly here
than it would have treated Mendes had she been on line 35 that
night and reacted the same way. Mendes was not at risk for
discharge, because she had been given a lesser level of disci-
pline in the earlier incident.
This leads me to conclude that Respondent’s discharge of
Guzman was for an illegal reason. At the very least, her tenure
had been unlawfully undermined so that a second apple-
dropping offense would be treated more harshly than a warn-
ing. Independent of that, Tommy Hanses’ treatment of her for
the line 36 incident was less than fair. He did not ask her ver-
sion, he relied on a supervisor whose report was suspect and he
relied on the versions of coworkers who, for the most part were
busy at their own lines and either did not see, or could not have
seen, what had happened. Nor did they understand (or even
hear) what Guzman actually said to McGarity. They were do-
ing their own work. In discounting Fernandez’ corroboration,
he also ignored the fact that McGarity later scolded Guzman in
English and Guzman responded in (broken) English. Fernan-
dez, though Spanish-speaking, has taken classes in English and
had a better ability than any of her coworkers to understand
what Guzman, at least replied. Tommy Hanses should have
given her version superior weight.
The Board has often held shoddy investigations such as this
to be evidence that an employer was using such an incident to
justify an illegal discharge. Clinton Food 4 Less, 288 NLRB
597, 598 (1988); Hickory Creek Nursing Home, 295 NLRB
1144, 1159 (1989); Washington Nursing Home, 321 NLRB
366, 375 (1996); and Woodlands Health Center, 325 NLRB
351, 365 (1998). I find that analysis to be applicable here.
O. Maria Abundiz
1. Facts
Maria Abundiz is an immigrant from Mexico. She has lived
in United States for over 20 years and toward the end of 1997
had been employed by Respondent for approximately 8 years,
mostly as a sorter. She speaks very little English. She has an
adult daughter, Trinidad Rivera, who, at the time of the hearing,
had recently graduated from Central Washington University in
Ellensburg and had just begun teaching kindergarten in Walla
Walla. During her 8 years of employment with Respondent,
Abundiz has neither been counseled nor disciplined for her
work performance.
Abundiz is 1 of about 15 employees who comprised the core
of union organizers. She had begun wearing a union T-shirt in
April and wore it about three times per week. She was in-
volved in nearly every employee protest or rally which oc-
curred at the plant, including the Union Gap luncheon on June
30, the August 12 recognition demand rally (where she carried
a banner), and the protests involving Diaz and Smith. Her un-
ion sympathies and activities were well known.
Once a year, according to Rivera, Abundiz would return to
Mexico to visit her mother. In late October 1997, Abundiz
sought permission from Eric Hanses (assisted by an employee
who often interpreted) to take 4 weeks off for that purpose in-
stead of the two normally allowed by the Company. She told
him that she would not lie to him (as she believed others had)
and claim some sort of emergency justifying an extended ab-
sence. She simply asked for 2 additional weeks. There is very
little disagreement regarding what Hanses told her. He said:
I can only give you two weeks off for vacation. And if you
go longer than two weeks, you know, that’s it. You’d be—
you’d be fired. And she replied back to me that, “I’m being
honest with you. I’m not going to lie like some of the other
people who say that they have emergencies.” And that—she
informed me that she was driving down, and so she needed
more than two weeks. I told her, “I’m sorry. I can’t give you
more than two weeks leave. After that two weeks is up, you
will be replaced.” At which point, she asked me if she could,
when she came back, come and check for work . . . I said,
“I’m not going to guarantee you a job when you come
back.”. . . She said, “Thank you. I’m going to be leaving. I’m
going.” She told me, “I’m going.
Her version is not much different:
I told him that I was not lying to him, telling him that it was
an emergency, that we wanted to go to the family and go to
Mexico. So then Eric told me if I was going to take the four
weeks, and I answered him “Yes,” so then he said, “Okay,
maybe when you return you’ll have to wait for your job.” . . .
The reason I told him that I was telling him the truth was be-
cause there were other people that would leave, and they
would tell him that it was because of an emergency, and they
would leave and then when they came back, they would have
their job, but that I was speaking to him the truth.
Abundiz left as planned and did not return to Yakima until
early December. On December 4, accompanied by Rivera,
Abundiz decided to inquire about her job. About 5 p.m. that
day the two arrived at the plant office and spoke with Eric
Hanses. Rivera did not serve as a word-for-word translator, but
had discussed with her mother earlier what she would say to
Eric Hanses. She testified:
I said that my mom was back from Mexico, and she would
like to know when she could start working. Eric then said that
her position was already filled, so she was going to be able
to—[he] didn’t need her. So then, I said, “Well, can we come
back and just be checking to see when another position opens
up? And he said that that wouldn’t be necessary because she
took a long time—she was—she left to Mexico—from Mex-
ico, and she took a while to come back, and that she wasn’t a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1256
very good worker. He said, and I quote, “And besides, she’s
not a very good worker.”
Eric Hanses’ version:
Her daughter informed me that, “My mother is back.” She
said, “My mom is back. Do you have work for her? Is her
job still available?”. . . . I said that—that there was no—that I
had—I said that her job had been filled. . . . The daughter said,
“Well, can my mom—should she come every day and
check?” And I said, “No, tell her not to bother to come in.”
And her daughter asked me why. “Why shouldn’t she come
back in?” And I said to her, “Frankly, your mom is not a very
good worker, and I’m not going to rehire her.”
At that point the two engaged in a short argument. Rivera
observed that Abundiz had worked for the Company for 8 years
and then recalled that during an April conversation Hanses had
said, in essence, that Abundiz was a valuable worker, having
given her long experience as a reason for denying Abundiz the
opportunity to transfer to the day shift. He denied the assertion.
At that point, Tommy Hanses, who had been on the telephone
nearby interjected, saying, “They know why she’s not going to
come back to work. . . . Don’t talk to them any more.”40 At that
point Rivera and Abundiz both left.
There is a testimonial difference regarding what was said in
the April conversation, but I do not believe it necessary to spe-
cifically resolve it. Whatever may have been said in April
bears little upon what occurred in December for the contexts
are quite different.
Eric Hanses testified that after 2 weeks had passed in No-
vember he replaced Abundiz by hiring a new employee named
Sara Perez. He considered Abundiz to be a quit. Company
records show her termination date to be October 31, 1997.41 In
fact, what transpired here is best described as “job abandon-
ment.” Rather clearly, Abundiz knew from what Eric Hanses
had told her at the end of October that if she took more than the
2 weeks allowed under company policy, it was likely that she
would be replaced and unable to return. She knowingly risked
her job to take 4 weeks of vacation instead of the allotted two.
2. Analysis
Before analyzing the factual circumstances, it is appropriate
to review the allegation in the complaint insofar as it relates to
Abundiz. Paragraph 13(d), as amended, asserts “About De-
cember 4, 1997, Respondent refused to reinstate its employee
Maria Abundiz.” Rather clearly, the complaint does not allege
that Abundiz was unlawfully discharged; further it does not
allege that Respondent refused to “rehire” her. Instead, it al-
leges that it did not “reinstate” her. Use of the word “reinstate”
implies that Respondent never took steps to separate her from

40 Rivera recalls Tommy’s interjection as “Now you know why your
mom is not getting her job back.” I find her to be mistaken here as it is
most likely that Tommy was cutting off the argument and because
Eric’s version is consistent with that intention.
41 For what it is worth, contrary to the contention of the General
Counsel, R. Exh. 3–23 is not evidence of a discharge. It is simply a
sheet which includes “termination” dates without regard to the logic
concerning the termination. R. Exh. 3 includes both discharges and
quits.
employment. Yet the General Counsel argues, somewhat un-
necessarily, that Respondent fired her. I am not exactly certain
what those differences in approach serve, if anything. I do
know that the evidence demonstrates clearly that Abundiz
abandoned her job when she did not return to work after 2
weeks and she lost her job. Whether it is characterized as a quit
or a discharge seems immaterial.
Eric Hanses had clearly told her that if she did not come
back at the end of the 2 weeks she would be fired and that he
would not guarantee that she would get her job back. Rivera’s
version, to the effect that he said Abundiz might have to wait
for her job, seems unlikely. While close, it is entirely inconsis-
tent with Respondent’s needs. Respondent is willing to make
adjustments in manpower needs to cover excused absences.
There is no evidence that it is willing to suffer manpower short-
ages to make accommodations beyond its attendance rules.
Here, Abundiz is admitting that Eric Hanses had told her that
her job would go to someone else if she did not return in a
timely way. Obviously, Respondent must be able to rely on the
availability of employees on a daily basis. When she told him
that she was going to stay in Mexico for the 4 weeks, no matter
what, she was putting her needs above those of her employer.
Eric Hanses recognized that and prepared to replace her when
she did not return. He saw her job abandonment coming and
readied himself for it.
Therefore, it is clear that both Respondent and Abundiz
knew that a separation from employment would occur if she did
not appear for work at the end of the 2 weeks. Thus, the com-
plaint’s use of the phrase “refused to reinstate” is really inap-
plicable. She was not an employee who remained in some sort
of limbo such as a layoff or other inactive payroll status. She
had left Respondent’s employ. There was no job to which she
could be reinstated—she had disengaged herself from it. Ac-
cordingly, I shall treat the matter as a refusal to hire/rehire.
At the time the case was tried, all parties were aware of the
Board law with respect to allegations of an unlawful refusal to
hire as set forth in Big E’s Foodland, 242 NLRB 963, 968
(1979). On May 11, 2000, the Board revisited the discrimina-
tory refusal to hire principles when it decided FES, 331 NLRB
9. In FES, supra at 12, the Board clarified the elements of a
discriminatory refusal to hire. It said that the General Counsel
must, under the allocation of burdens set forth in Wright Line:42
(1) the respondent was hiring or had concrete plans to hire at
the time of the alleged unlawful conduct; (2) the applicant had
experience or training relevant to the position; and (3) antiunion
animus contributed to the decision not to hire the applicant.43
In many respects the FES factors are not greatly different from
those of Big E’s Foodland, supra. See the footnote below.44

42 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
43 I have not quoted FES exactly, but have omitted nonrelevant lan-
guage.
44 “Essentially, the elements of a discriminatory refusal to hire case
are the employment application by each alleged discriminatee, the
refusal to hire each, a showing that each was or might be expected to be
a union supporter or sympathizer, and further showings that the em-
ployer knew or suspected such sympathy or support, maintained an
WASHINGTON FRUIT & PRODUCE CO. 1257
A review of the facts with respect to Abundiz’ circumstances
shows that on December 4 she made an oral application for
work.45 It also shows that she specifically asked for her job
back but that her job had gone to replacement employee Perez.
It does not, however, show that Respondent was hiring at that
time. Even so, it is evident that both Eric and Tommy Hanses
were aware of her union activity and propensity. In addition,
there is evidence of antiunion animus. Certainly various types
of 8(a)(1) conduct had been committed and Respondent had
earlier unlawfully discharged Guzman and wrongfully reas-
signed/demoted Smith to prevent her from having access to
other employees.
In analyzing what was going through Eric Hanses’ mind at
the time she applied for her job back on December 4, it is al-
most self-evident that he was annoyed with her because she had
taken the extra 2 weeks. Her attitude in taking those 2 weeks
bordered on defiance or insubordination. Certainly he thought
she had put her personal interests ahead of the Company’s. He
undoubtedly had no desire to treat her positively at that stage. I
find, therefore, under FES, that a prima facie case has not been
made out. First, there is no showing that Respondent was hir-
ing sorters on December 4. Second, even though there is some
general antiunion animus to point to, that animus has no real
nexus to Hanses’ negative response to Abundiz’ application.
He would have responded the way he did no matter what be-
cause he could not simply ignore her misconduct. To rehire her
would have rewarded her misbehavior. That he would not do.
Therefore, even if a prima facie case had been made out, it has
been persuasively rebutted.46 Accordingly, this allegation will
be dismissed.
P. Betty de Weese
The complaint alleges that about December 11, Pear Super-
visor Betty de Weese denied employees the opportunity to con-
tribute to funeral flowers for a “coworker” because of the Un-
ion’s organizing campaign. The coworker in question was
actually one of the managers, Rumsey Abdullah, the shipping
supervisor, whose mother had recently died. De Weese super-
vises about 40 employees.
According to Janine Bliss, a pear packer with 20 years ex-
perience, over the years there have been numerous instances in
the pear packing room where individuals had made solicitations
of one kind or another. Many of these occurred before the no-
solicitation rule was changed in March 1997.
When it was learned that Abdullah’s mother had died, De
Weese decided to follow a longstanding practice and take up a
collection for flowers or some other remembrance. Bliss re-
members contributing a few dollars to De Weese in her office.

animus against it, and refused to hire the applicant because of such
animus.” Big E’s Foodland, supra at 968.
45 Respondent does not utilize a written application process. It will
accept oral applications made to shift supervisors as in this instance.
46 Counsel for the General Counsel point to the fact that there were
instances where employees overstayed leaves but didn’t lose their job
upon their return. I have reviewed those incidents but cannot find that
they were comparable. If nothing else, those individuals waited for
time to pass (a self-imposed ‘penance’ period?) before seeking to re-
turn. Abundiz did not.
After a few hours had passed, Bliss remembers De Weese re-
turning the money. On direct, Bliss reported De Weese’ expla-
nation: “[S]he stated when she was handing it back to me that
Tommy Hanses had talked to the lawyers and they said, return
it because it was solicitation and because of the union thing.”
On cross, when Bliss was asked to use the words that De Weese
used, she said that she “was returning the money because it was
considered solicitation.” She did not repeat her reference to the
Union. She did, however, remember being scornful of De
Weese’s use of the word “solicitation” asking if they were so-
liciting the dead.
De Weese testified that she returned the money after having
had discussion first with, Mel Sager, and later Tommy Hanses.
Sager had alerted her that the new rule might bar her from such
a solicitation and she then checked with Hanses who confirmed
that the new rule prohibited her from taking up such a collec-
tion.47 As a result, she returned the money, explaining either
that it “was” or “might be” considered soliciting. She denies
making any reference to the Union in her explanation.
Based on the foregoing, I am unable to conclude that the al-
legation in the complaint has been sustained. Bliss’ hesitant
and uncertain testimony, testimony that De Weese put blame on
the Union for canceling the collection, is simply not credible.
When she was asked to use the words that De Weese suppos-
edly used, she referenced the no-solicitation rule, even making
fun of it. Nor, did she repeat her earlier testimony. In addition,
De Weese’s explanation makes perfect sense. She learned from
a fellow supervisor that the solicitation might be breaking the
new rule, checked with a higher authority, learned that the rule
applied and made an appropriate explanation to her crew. In
that circumstance, I cannot find that De Weese blamed the Un-
ion for her decision to return the money. This allegation of the
complaint will be dismissed.
Q. Christina Bautista and Frederico Gonzales as the
Election Approached
1. Bautista
It will be recalled that the election petition was filed by the
Union on November 20. When that occurred, Respondent be-
gan to marshal its arguments and propaganda to oppose the
Union’s drive. It hired outside consultants and put together a
campaign designed to persuade employees to vote against rep-
resentation. Among other things, it decided to counter the pro-
union T-shirts with “no union” T-shirts and to counter the pro-
union buttons with “no union” buttons. Once the election was
set, it put together a calendar of presentations, short speeches,
videos, small group talks, and an “educational” raffle, all de-
signed to present Respondent’s view in opposition to union
representation.
Although the date is not firmly fixed by the parties, some-
time in late December a video was shown to groups of 10–15
employees in the lunchroom. Eventually, the entire voting unit
saw the presentation. As part of the presentation, Respondent

47 That advice was no doubt correct but see Hammary Mfg. Corp.,
265 NLRB 57 fn. 4 (1982), which permits a small number of “benefi-
cent acts” such as an annual United Way campaign as a narrow excep-
tions to a no-solicitation rule.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1258
had placed a large box of “no union” T-shirts48 to be taken by
any employee who wished to do so. Many of the prounion
employees chose to wear their prounion T-shirts as an expres-
sion of opposition to the programs being presented. One of the
groups included Chuy Andrade, Marcelino Gonzalez, and Rosa
Salas who were all wearing their prounion shirts. After the
presentation was completed, Andrade went to the box and be-
gan distributing the “no union” shirts to Gonzalez and Salas
and perhaps others who favored the Union. At that point, Shift
Manager Christina Bautista observed them and asked Andrade
who had given her permission to take them. Andrade replied
that no one had done so, that Bautista had given them to others
and that she wanted one. Bautista told her to stop but Andrade
refused. As a result a number of “no union” T-shirts were dis-
tributed to union activists. Bautista did nothing thereafter de-
spite Andrade’s refusal to abide by her directive.
The General Counsel asserts that this incident constitutes an
unlawful interrogation. I do not agree. Certainly no interroga-
tion took place. Bautista did not inquire about their union ac-
tivities, feelings, or desires and nothing she did was designed to
get them to reveal those beliefs. The union sentiments of these
employees were not only already known to Bautista, they were
emblazoned on their chests. Indeed I have difficulty in finding
that Bautista did anything at all that can be characterized as
coercive. First, following El Rancho Market, supra, I am un-
able to conclude that anything Bautista said here can reasonably
be seen as tending to interfere with the free exercise of em-
ployee rights under the Act. All that happened was that
Bautista saw some known union activists taking material which
the company wished to give to employees who agreed with the
company’s viewpoint. Bautista can reasonably be seen as pro-
tecting company propaganda items from being removed from
the debate platform. In essence she was preventing prounion
employees from making off with opposition material—she was
attempting to prevent what she perceived to be a campaign
“dirty trick.” No interrogation occurred and nothing she said
had any tendency to deter the manner in which Andrade, Gon-
zales, and Salas were exercising their Section 7 rights.
The same cannot be said for other incidents which occurred
that day. Aleida Barton and Rosa Garcia testified about two
separate incidents after the video was shown. Barton testified:
All the women who were around me had the T-shirt, the “No
Union” T-shirt. But I was not wearing it. So Christina
Bautista told me, “Girl, everybody has a T-shirt. Go to the
bathroom and put it on.” And I said that I was not going to
put it on. And so she asked me why, and I said that because I
was a Jehovah’s Witness and I was not going to put it on.
And so for the second time, with a very authoritative voice
she told me “Go to the bathroom and put it on.”
She continued to refuse and Bautista sarcastically remarked
to others nearby that Barton was refusing because she was “a
sister,” meaning a religious woman such as a nun. Barton stood
her ground.

48 On the front it said, “Washington Fruit.” On the back it said,
“[N]o union” together with a small box containg a check-mark.
Similarly, Rosa Garcia testified that Bautista, still in the
lunchroom after the video, handed her the shirt and told her to
go put it on, saying all employees had to wear one. Garcia at
first objected, but later relented. She remembers Bautista told
her to wear the shirt the following week, and when she ap-
peared at work without it, Bautista demanded to know where it
was. Garcia tried to avoid answering that she was refusing to
wear it, and claimed the shirt had shrunk in the laundry. Upon
hearing that, Bautista obtained a larger size and ordered her to
put it on. Again Garcia declined, but Bautista insisted and Gar-
cia again relented and wore the oversize “no union” T-shirt.
A few days later, Bautista was handing out antiunion buttons
and Barton, in what she perceived as an effort to placate
Bautista, said she would take one. Bautista told Barton she
could have one if she promised to wear it. Barton could not do
that, so she simply said, “As you wish,” and let the matter drop.
Bautista testified in a stiff and clipped manner. She an-
swered with only one-word denials when asked about these
incidents. She clearly did not want to be a witness and was
reluctant even to appear. Her demeanor was of someone who
did not wish to cooperate in the truth-finding process. Her
denials are rejected in favor of the versions offered by Barton
and Garcia.
First, although the complaint characterizes Bautista’s con-
duct here as coercive interrogation, the conduct is actually
stronger than that. Bautista directed employees to wear an
antiunion garment against their specific wishes. She did it in an
insistent manner, managing to step on one employee’s religious
beliefs in the process and intimidating another on two occasions
to actually wear the shirt. This was straightforward coercion:
“Wear these shirts or suffer my ire.”
In addition to the coercion, Bautista’s requirement also con-
stituted an unlawful interrogation as alleged. When individuals
resisted wearing the shirts or the buttons, that resistance un-
doubtedly labeled the employee as one who, if not actually
perceived as a union supporter, needed more attention. Simi-
larly, if an employee willingly took and wore the shirt or but-
ton, it signaled that the employee was already in the Employer
camp and less likely to be a campaign target.
It should be observed here that those perceptions might not
actually turn out to be accurate, for secret-ballot voting is not
way of inducing individuals to reveal preferences he or she
might not otherwise disclose. It is an unlawful inquiry into an
employee’s sentiments and which can only be described as a
coercive interrogation. Garland Knitting Mills of Beaufort,
South Carolina, Inc., 170 NLRB 821 (1968), enfd. in pertinent
part sub nom. Ladies’ Garment Workers v. NLRB, 414 F.2d
1214 (D.C. Cir. 1969); American Metal Climax, Inc., 164
NLRB 983 (1967), enfd. in pertinent part 413 F.2d 191 (6th
Cir. 1969). The fact that employees may not have been aware
that they were being scrutinized is not a defense. Employees
are entitled to either express their opinions about labor unions
and unionization and they are equally entitled to keep their
opinions to themselves. It is entirely inappropriate for an em-
ployer to surreptitiously dig into an employee’s heart to deter-
mine his or her union sentiments. It is no answer to say that
such things are done by advertisers or by political campaigns in
other venues. Here, the venue is the workplace. When it
WASHINGTON FRUIT & PRODUCE CO. 1259
comes to representation elections, the rules are different. Em-
ployees should never be placed in a situation where they reveal
their union sentiments, even if that sentiment is revealed by
inaction. Bautista’s behavior in these incidents violated Section
8(a)(1) of the Act. Kurz-Kasch, Inc., 239 NLRB 1044 (1978);
Tappan Co., 254 NLRB 656 (1981); Houston Coca-Cola Bot-
tling Co., 256 NLRB 520 (1981); and Automotive Plastic Tech-
nologies, 313 NLRB 462, 468 (1993).
2. Frederico Gonzales
Frederico Gonzales, one of the night-shift supervisors, was
present at several of the video meetings (different supervisors
attended others). Called by Respondent to testify about a vari-
ety of matters including T-shirts, counsel for the General Coun-
sel cross-examined him about what occurred after the videos
had been shown. She asked whether he “observed” employees
taking “no union” T-shirts from the box as he sat or stood about
15 feet away. He replied that he had. He also testified that he
was in and out of the lunchroom that day; sometimes he stayed
for the video, sometimes he left.
I had permitted the General Counsel to inquire because the
subject matter was similar to that adduced in support of para-
graph 7(h) aimed at Bautista’s conduct described above, think-
ing that additional light would be shed on Bautista’s conduct. I
later granted the General Counsel’s September 28, 1999 motion
to add paragraph 7(i) to the complaint to deal with these facts.49
In their brief, counsel for the General Counsel asserts that Gon-
zalez’ disclosure that he “observed” employees taking shirts
from the box constitutes an 8(a)(1) surveillance violation as
alleged.
Frankly, I am not particularly impressed with counsel for the
General Counsel’s analysis here. First, she reads too much
from Gonzalez’ acceptance of her suggested word, “observe.”
Clearly he saw people take shirts. Whether that was an “obser-
vation” on his part, constituting surveillance is an entirely dif-
ferent question. He apparently had been assigned to be the
supervisor of the moment to be present during several, repeti-
tive video showings. (Bautista had been assigned the duty for
other meetings.) Gonzalez’ presence in the lunchroom could
not have been missed by any employee. Indeed, there is no
evidence that he was in any way surreptitious. Anyone in the
room would have seen what he saw and would know that he
was seeing it. They did whatever they did knowing he could
see if he chose to pay attention. In a real sense they exposed
their views themselves.
Gonzalez says he made no record (mental or otherwise) of
what he saw or who took shirts and who did not. I find his
testimony to be credible. He was present, but was uninterested
in the meetings and didn’t care much about them. It is unlikely
that anyone thought he was watching with any purpose. More-
over, Gonzalez has not been shown to have been coercive as
was Bautista. There is no evidence that he even spoke to the
employees as they departed the meeting and passed by the box
of shirts. This is quite different from what Bautista had done,
ordering her employees to wear one and later passing them out

49 The amendment, found as the last document in GC Exh. 109, al-
leges that Gonzales had surveilled employees by openly monitoring
whether employees had selected the “procompany, antiunion” T-shirts.
to her staff, forcing them to make a decision and later forcing
them to wear the shirt.
For there to be an actual surveillance violation of Section
8(a)(1), the employees being surveilled must actually be (or
perceived to be) engaging in conduct protected by Section 7.
Normally, of course, an employer engages in unlawful surveil-
lance when he observes employees who are doing something in
support of a union. While Section 7 equally protects employees
who choose to refrain from supporting a union, it seems anoma-
lous to hold that an employer commits an 8(a)(1) surveillance
violation when he observes employees engaging in conduct
opposing a union, particularly where the employer himself gave
them the means and opportunity to express their views. Here,
all the employer did, after showing a video which apparently
met the free speech parameters of Section 8(c), was to leave a
box of “no union” T-shirts to be taken by any employee who
wanted. If a supervisor such as Gonzalez saw an employee
take one, his observation could not be coercive of the right to
refrain. Certainly, picking up such a shirt would not constitute
any Section 7 activity on behalf of the Union.
Second, employees who chose to go back to work without a
shirt would not be perceived by Gonzales or anyone else as
being engaged in the Section 7 activity of refusing the shirt.
They were simply doing what they were supposed to do, return
to their workstations upon completion of the presentation.
Accordingly, I fail to see what Section 7 activity on behalf of
the Union Gonzales was supposedly observing. The employees
who did not pick up a shirt were not engaging any union activ-
ity so there was no activity to be surveilled, much less protected
by the statute. In any event, the General Counsel’s question
was whether Gonzalez had observed employees taking shirts,
not whether he had observed employees not taking shirts.
In these circumstances, I cannot find a surveillance violation.
Gonzalez’ supposed admission is much less than the General
Counsel wishes to make it. It is nothing more than an honest
answer that he did see some people taking the shirts. It is not
an admission that he was keeping watch over the employees
under some mandate or suspicion. Furthermore, those employ-
ees were not engaged in activity which had the Employer’s
disapproval. The elements of the violation are simply not pre-
sent.
R. Natalie Pierce and Rigoberto Flores
1. Introduction
I take this next incident out of chronological order. Among
other things, it demonstrates that there is a patina of witness
dissimulation with respect to testimony about statements made
by the consultants as described in subsequent sections. That
tarnish appeared when Rigoberto Flores testified concerning
statements supposedly made by consultant Mayra Berrelleza in
late December 1997.
Flores had been called by the General Counsel and gave tes-
timony regarding an alleged threat made by Berrelleza to the
effect that if the Union won the election the boss would prefer
to close rather than negotiate with the Union and it would be
useless to negotiate with the Union. On cross-examination,
Flores reluctantly admitted that he had told one of Respon-
dent’s attorneys, Natalie Pierce, something quite different dur-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1260
ing an interview in November 1998. His testimony about the
interview immediately resulted in the General Counsel moving
to amend the complaint to allege that Flores had improperly
been called to the interview and that Pierce had improperly
interviewed Flores in violation of the safeguards set forth in the
Board’s decision in Johnnie’s Poultry Co., 146 NLRB 770
(1964), enf. denied on other grounds 344 F.2d 617 (8th Cir.
1965).
During his cross-examination Flores gave the following tes-
timony:
Q. BY MR. CARROL: In a meeting with the company
lawyers did you say that at the union office the union
asked you to tell the federal agents things that did not hap-
pen?
A. (WITNESS FLORES): It was not exactly people from
the union.
Q. Okay. Well, who was it that told you to go tell the
federal agents things that did not happen?
. . . .
THE WITNESS: A co-worker.
Q. BY MR. CARROL: And who was that?
A. May I say the name?
Q. Sure.
A. His name is Jose Zarate.
. . . .
Q. BY MR. CARROL: Did you also—did you say to the
company lawyers that the union representatives came to
your home and one of the representatives who was young
and had a beard told you that the more accusations the un-
ion has against the company, the more benefits we’ll get?
A. Yes.
Q. Do you remember who that union representative
was, the young one with the beard?
A. I do not remember his name.
Q. Was it Andrew Barnes?
A. No, I do not remember his name.
. . . .
Q. Do you remember telling anybody from the union,
“It’s not true what you’re telling me to say, and I don’t
want to lie”?
A. No.
Q. You didn’t say that to anybody from the union?
A. Not—it was not from the union. It was to a co-
worker.
Q. Oh, and this—was this Mr. Zarate?
A. Yeah.
Q. And you said that you didn’t want to lie? That you
could get into problems?
A. Yes.
Q. And he said, “There won’t be any problems. The
union will support you at any moment”?
A. He said that the union would support me. He didn’t
say that there would not be any problems. He only said
that the union would support me.
Q. And after he said that, it’s true that union represen-
tatives went to your house?
A. Yes.
Q. And they called you on the telephone every day?
. . . .
THE WITNESS: They would call me twice a week.
Q. BY MR. CARROL: And that was before you met
with the NLRB agent?
A. Yes, sir.
It can be seen from this testimony that Flores has admitted to
Respondent that pressure had been brought to bear against him
to give testimony which, to Flores’ knowledge, was not true.
He ultimately contended that he did not accede to this pressure.
2. The facts relating to Pierce’s meeting with Flores
In December 1998, Natalie Pierce had been out of law school
about a year. Because she speaks Spanish, she had been as-
signed to investigate and interview company employees who
might be called as witnesses. She was aware of the Board’s
rules regarding interviewing employee witnesses in preparation
for trial as set forth in Johnnie’s Poultry, supra, and endeavored
to follow them.
Flores testified that on the day of the meeting, December 9,
1998, a fellow employee named Francisco Juarez50 had told
him that Pierce wanted to meet with him in a meeting room in
the headquarters office. As a result, he met with Pierce as he
believed he had been instructed. He says that the meeting be-
gan with her asking about a union photo booklet in which his
picture is alleged to have appeared shortly before the election in
January 1998. He says she asked him whether he appeared in
the book and asked about the opinion of his coworkers who had
appeared in the book. (He answered they were “discontented.”)
He testified that Pierce asked him what he didn’t like about the
Union and what bothered him about it. He agrees that she did
not ask him the names of the coworkers.
Yet, Pierce had no reason to ask about such a thing. The
booklet was not part of any election objection or unfair labor
practice allegation. She says she didn’t know such a book ex-
isted until he told her about it. Flores’ testimony is peculiar and
such an inquiry by Pierce seems very unlikely.
Pierce recalls the interview entirely differently. She testified
that as she drove to work that morning, Juarez called to her
from the forklift on which he was riding. She stopped her car
and he came over to speak to her. She says he said, “Hi, a
friend of mine would like to speak to you. He came to me
and—and he said that he was having a lot of problems with the
union and the union has asked him to say things that didn’t
happen and now they wanted [him] to go to court.”
She replied that his friend could come meet with her if he
wanted.51 About half an hour later she met Flores in the build-
ing entry, they introduced themselves (with Flores describing

50 Juarez had served as one of the Employer observers during the
election.
51 Juarez corroborates Pierce’s version. Moreover, careful analysis
of Flores’ own account leads to the conclusion that Flores chose to see
Pierce because he had some private concerns of his own.
WASHINGTON FRUIT & PRODUCE CO. 1261
himself as Juarez’ friend), and took him to the conference room
on the second floor where she normally conducted her business.
Speaking in Spanish, the first thing she did was to read him
General Counsel’s Exhibit 95(a), then allowed him time to read
it for himself. The document is in Spanish but the court inter-
preter has translated it to English in General Counsel’s Exhibit
95(b). The original is a Spanish version of a Johnnie’s Poultry
purpose and rights slip. Flores signed the form sometime be-
fore he left Pierce that day.
Pierce says she asked Flores why he wanted to see her. He
responded that he wanted to talk to her because he’d been hav-
ing a lot of problems with the Union. She says he further re-
sponded saying the Union had tried to get him to say things that
hadn’t happened, had tried to get him to do (provocative)
things, that he’d had enough problems with the Union and now
they wanted him to go to court. He told her he’d received a
phone call the night before from lead organizer Lorene Scheer
telling him that he would need to go to court, and he said that
he had told Scheer he’d think about it.
Pierce asked for some clarification and, after a false start re-
garding a union photo book, Flores went on to say that the Un-
ion had asked him to “do things” which would cause him to get
warnings but he had declined.
She then asked if there was anything else. He replied, “After
the election, the Union called me to the office to give another
declaration. And they wanted me—the—at the Union, they
wanted me to tell things about—to, I guess, give a declaration
about meetings that I had with consultants.” She recalls he said
that after he gave the declaration, union representatives started
calling him every day, started coming by his house twice a
week and telling him that he would need to speak with federal
agents, and that he—the more accusations that he could make
against the company, the more benefits he would get.52 And he
said one day, when he was at the union office, one of these
union representatives who had come to his home asked him to
say things to the federal agent that hadn’t happened.
3. Discussion
As can be seen, both versions are to a great extent mutually
corroborative. Flores, however, had been most reluctant to
reveal what he had reported to Pierce. Indeed he was reluctant
to testify at all. Curiously, he attributed to Berrelleza the re-
marks in support of the threat to close and the threat that it
would be useless to negotiate with the Union.
Berrelleza had first come to Respondent’s facility on De-
cember 15 with Steve Highfill, the lead consultant who Re-
spondent had hired to run the campaign opposing unionization.
Berrelleza frequently works in representation election cam-
paigns opposing unionization. She usually speaks to Spanish-
speaking audiences (her English is limited53) because she has
had a unique experience which Highfill has come to believe

52 Allowing for some misunderstanding of the Spanish, even the
General Counsel allows that what Flores may really have been saying,
according to Pierce, was the more accusations he could make, the more
beneficial it would be. In fact, Flores accepted Carrol’s use of “bene-
fits” as the word which was said while probably meaning “beneficial.”
53 Consultant José Ybarra said she spoke “not great” English to the
pear packers at a meeting in late December.
effectively rebuts union organizing campaigns. She had previ-
ously worked as a packer in the strawberry packing industry in
Watsonville, California, where 12-1/2 years earlier, in July
1985, she had become involved in a violent strike by a Team-
ster Local there. She tells a graphic story about the breakdown
of negotiations, the 18-month strike which ensued, the loss of
respect for human safety which she underwent, followed by
violence and the commission of criminal acts which the strikers
came to believe they needed to commit as their cause became
lost and as desperation overtook them. She presents herself as
a remorseful victim of circumstances beyond her control, one
who has been given the opportunity to tell others about her
experience, cautioning them about the risks unionization may
present.54 Insofar as I could determine, her tale appears to be
true; she supports it with newspaper articles. Certainly the
General Counsel has not effectively countered it.
The main point to be made here is that Berrelleza’s principal
function in this campaign was to describe her experiences as a
unionized, striking worker. It was not her function to do much
else. More specific information regarding the effects of unioni-
zation was provided by Highfill on December 15, not Ber-
relleza. Similarly, in the late December, early January meet-
ings, she again went over her Watsonville experience, leaving
much of the general information about the union representation
to the professional consultant, José Ybarra.55 Berrelleza’s
credibility with the employees depended on her being a wit-
ness/participant to a real event. Anything more would have
made her an advocate, which would have undermined her ef-
fectiveness. Therefore, it seems unlikely that Berrelleza would
have made any remarks at all to Flores regarding what “the
boss’s” preferences were or whether it was “useless” to negoti-
ate with the Union. She denies saying such things and Highfill,
Ybarra and the third consultant during the December 15 presen-
tation, Maria Carmona, all deny that Berrelleza said any such
thing.
Flores is obviously a man of conscience, but whose sense of
integrity is not unwavering. He knew that he had been impor-
tuned by others to make false statements to the NLRB investi-
gators. He had been told that the Union would back him up,
even though both he and his solicitor knew that it was wrong.
His conscience sent him to Pierce either to warn her or to tell
her that he had given a statement which was not true, seeking a
way to avoid having to testify. Yet he could not bring himself
to tell her what he had actually said. Even on the witness stand,
while loath to admit that he had given a false statement, he was
nonetheless willing to say that a fellow employee and an uni-
dentified union official had urged him to falsify and exaggerate
during the course of the investigation. He was driven to point
out what he perceived as a general problem but did not want the
finger pointed at himself. Until he was cross-examined, it no
doubt seemed to him that whatever he had told the investigators
would not be subject to scrutiny, and that his story would stand
unchallenged.

54 Her speech is found in Tr. Vol. 34, pp. 4979–4984.
55 Both Highfill and Ybarra operate management consultant busi-
nesses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1262
When probed on cross-examination, however, his sense of
cover vanished. He knew that he had not revealed to Pierce
what the truth actually was, apparently perceiving by her de-
meanor, that she could not help him. All he had done was to
alert her to a problem. On the stand, though, he realized that he
was obligated to tell the truth about what little he had said to
her about being suborned, because she might testify about what
he had said. As a result, his testimony and her testimony about
what he had told her, vary little on that point. Accordingly, I
conclude that he is telling the truth when he says that a fellow
employee and a union official56 told him to exaggerate. In fact,
he was contacted numerous times and undoubtedly succumbed
to their call. Even so, he still believes in the Union and will not
squeal on it.
Obviously, Flores’ testimony demonstrates that employees
have been urged by someone, whether union official or over-
zealous fellow employee, to go beyond the truth: the more ac-
cusations, the better. While I am hesitant to conclude that such
measures were taken with respect to all of the General Coun-
sel’s witnesses, or that all of them fell victim to such overtures,
it is clear to me that there is a patina or tarnish of unseen in-
struction which blurs the truth regarding what the consultants
said.
A good example is Indalecio Mata’s testimony that during
one of the sessions conducted by Highfill, he called Highfill a
liar, whereupon Highfill rushed him, pointed a pen in his face
and angrily told him to shut up. Highfill denied the incident
occurred and no employee corroborated Mata.57 Since High-
fill’s purpose was to convince employees that union representa-
tion was unwise, and since he had facts and figures which he
was using to support the view he was espousing, it would have
been self-defeating to be seen physically threatening an em-
ployee in front of 20–25 others. Highfill is a smooth salesman.
He would not have been put off stride by some verbal hostility.
His eye was on employees he could convince. He was not
about to drive them to the other camp by a public verbal or
physical altercation with one of their fellows.58 Mata’s testi-
mony is simply a fabrication. Yet it fits perfectly with what
Flores told Pierce he had been asked to do, cause problems and
say things which were untrue.
Clearly, when it comes to reciting and analyzing what the
consultants said during the preelection period, great care needs
to be taken before drawing any conclusions regarding the rela-
tive credibility of the employee witnesses. This is not to say
that the consultants don’t have their own problems. Careful
parsing of the testimony is required.
4. Conclusions regarding Pierce’s interview of Flores; safe-
guards
At the hearing, I granted the General Counsel’s oral motion
to amend the complaint to challenge Pierce’s interview of Flo-

56 I think it likely that he does know the name of the union official,
but will not reveal it because to do so would damage the Union’s cause.
57 Concepción (Concha) Loera-Rivera attended the same meeting. If
such an incident had occurred, she would have recalled.
58 Highfill appears to be in his 50s. Based on age as well as stature,
he is an unlikely physical aggressor. Mata is in his 20s, somewhat
immature, and aggressive enough to call a stranger a liar.
res. The allegation reads: “On or about December 9, 1998,
Respondent by its employee agent Francisco Juarez at its facil-
ity and by its attorney agent at its main office, coerced and
interrogated employees regarding their and other employees’
union sympathies and Section 7 activities in violation of Sec-
tion 8(a)(1) of the Act.” As can be seen, the allegation starts
with Juarez, not Pierce. Indeed, it alleges that Juarez’ bringing
Flores for a pretrial interview is itself a coercive act. Then it
goes on to assert that the attorney-agent (Pierce) improperly
interrogated Flores.
The allegation is based on Flores’ testimony that Juarez told
him to go see Pierce. At that time, Juarez was a forklift driver
who had come to know most of the people who worked for
Respondent.59 He certainly knew Flores who worked in the
cold room which is frequented by forklift drivers such as him-
self. He had served as the Employer’s observer during the
election and during trial preparation had been called upon to
notify those employees who Respondent’s lawyers wished to
interview in preparation for trial. Respondent was interviewing
employees as prospective witnesses with respect to two major
issues, the unfair labor practice allegations and the Union’s
objections to the outcome of the election.
The General Counsel seems to think, first, that Juarez be-
came Respondent’s agent when it asked him to be the individ-
ual who told employees they were wanted in the main office.
Second, it argues that the very act of telling an employee, such
as Flores, to go to the office interferes with a Section 7 right.
All Juarez did, according to Flores, was to tell him that he had a
meeting in the office. When Flores asked what it was about, he
says Juarez simply told him, “The young lady will explain.”
Nothing else was said.
Assuming this version is correct,60 it does not make out an
8(a)(1) violation. First, assigning an employee to the duty of
telling employees to go to the office is insufficient to make him
an agent for unfair labor practice purposes. Juarez was a fork-
lift driver, nothing more. He had no other authority. Clearly,
under Flores’ rendition, Juarez was simply a messenger. Carry-
ing messages is one of the duties asked of most employees at
one time or another. If that makes them an agent, it is one of
extremely limited power and authority—to simply carry the
message. In this case the message was: “You’re wanted in the
office.” Second, Juarez did nothing more on his own, although
he did answer Flores’ inquiry regarding what the meeting was
about, but essentially only replying that Flores would find out
when he got there. No interrogation took place whatsoever,
much less a coercive interrogation. Quite simply, from Flores’
own account, this portion of the allegation never had any fac-
tual basis and was without merit from the outset.
Insofar as the allegation is aimed at Pierce’s conduct, it is
without merit as well. The facts lead to the certainty that Flores
volunteered to see Pierce. Pierce’s account is set forth above
and I have alluded to Juarez’ corroboration. Specifically,
Juarez described how Flores came to him, saying he had a
problem with the Union and with giving testimony, how he told
Flores Pierce might be able to help, and how he mentioned the

59 In June 1999, Juarez became one of the bagging supervisors.
60 In fact, I credit Pierce’s account, supra.
WASHINGTON FRUIT & PRODUCE CO. 1263
matter to Pierce one morning as she drove up. Considering the
testimony of all three, I have no difficulty in concluding that
Flores, through his coworker Juarez, initiated the meeting.
That being the case, the interview was not for the purpose of
pre-trial preparation. In fact, Pierce didn’t know what the pur-
pose of the meeting was, since she hadn’t called it. Despite
that, out of caution, she did read the Johnnie’s Poultry rights
slip to him and later had him sign it.
Since Flores had come forward on his own, the warning slip
which Pierce read to him and which he signed was really not
apropos, for it speaks in terms of seeking information which
occurred before the election, and about the election. The main
thing which it did for Flores, was to include the statement that
he was under no obligation to talk to her, to advise him that
there would be no harm or gain from speaking to her, that he
could answer or not answer as he chose, that there would be no
punishment if he refused to speak to her and that she only
wanted the employee to tell the truth.
Moreover, there is no credible evidence that Pierce did any-
thing other than to ask Flores what he wanted to tell her and ask
him to clarify what he was saying as he attempted to focus on
his concerns. His testimony about what Pierce supposedly
asked him at the outset makes little sense. She knew nothing of
the Union’s photo booklet before he told her about it and cer-
tainly had no inceptive interest in asking about it. He testified
in a conclusionary manner, unable to use the words which she
said. He even agrees that she did not ask him about something
she may have been charged to look at, the circumstances under
which he signed the union petition. Obviously, she was just
listening to him as he told her in a truncated fashion about the
efforts to suborn him. At some point he stopped, realizing that
she was not going to be able to advise him what to do or help
him to avoid testifying. Was it her noncommittal manner
which stopped him? I think so.
In Johnnie’s Poultry, 146 NLRB at 774–775, the Board said
that both it and the courts have held that where an employer has
a legitimate cause to inquire, he may exercise the privilege of
interrogating employees on matters involving their Section 7
rights without incurring 8(a)(1) liability. The purposes which
the Board and courts have held legitimate are of two types: the
verification of a union’s claimed majority status to determine
whether recognition should be extended, involved in the pre-
ceding discussion, and the investigation of facts concerning
issues raised in a complaint where such interrogation is neces-
sary in preparing the employer’s defense for trial of the case.
In allowing an employer the privilege of ascertaining the neces-
sary facts from employees in these given circumstances, the
Board and courts have established specific safeguards designed
to minimize the coercive impact of such employer interroga-
tion.
Specifically, the safeguards are that the employer: must
communicate to the employee the purpose of the questioning,
assure that no reprisal will take place, and obtain his/her par-
ticipation on a voluntary basis. The questioning must occur in
a context free from employer hostility to union organization
and must itself not be coercive in nature and the questions must
not exceed the necessities of the legitimate purpose by prying
into other union matters, eliciting information concerning an
employee’s subjective state of mind, or otherwise interfering
with the statutory rights of employees. When an employer
transgresses the boundaries of these safeguards, he loses the
benefits of the privilege.
The Board went on to say:
In defining the area of permissible inquiry, the Board has gen-
erally found coercive, and outside the ambit of privilege, in-
terrogation concerning statements or affidavits given to a
Board agent [footnote. omitted] for such questions have a pro-
nounced inhibitory effect upon the exercise by employees of
their Section 7 rights, which includes protection in seeking
vindication of those rights free from interference, restraint,
and coercion by their employer.
First, it is clear to me that Pierce did not interrogate Flores
about any affidavit which he had given to a Board agent. She
simply let him talk about whatever issue had prompted him to
come to her. It turned out that the issue did deal indirectly with
what he had said to a Board agent, but it was not as a result of
anything she asked him. It was something he wanted to get off
his chest. Indeed, he provided no details at all about what was
in his affidavit, but implied that whatever was in it was not the
truth as he had been suborned, hinting that others may have
been corrupted as well.
When he stopped talking about it, she did not pursue it any
further, as tempting as that must have been. Instead she hon-
ored what had been said in the warning slip and let him leave
without any pursuit on her part. She made some notes about
what he had said and nothing further occurred until he testified,
whereupon he confirmed that at least two people had urged him
to say false things to the Board agent.
Accordingly, I find that the General Counsel has failed to
prove that Pierce violated Section 8(a)(1) in her encounter with
Flores on December 9, 1998. First, he approached her and the
entire matter was voluntary on his part. Second, she provided
him with the safeguards required by Johnnie’s Poultry and
honored them as he began having second thoughts about pro-
ceeding further with her. Third, the entire conversation was
private and occurred in a second floor conference room where
they were unlikely to be seen. Finally, she did not proceed
beyond the bounds of lawful subject matter or take advantage
of him in any way. This allegation will be dismissed.
S. The Preelection Meetings
1. The consultants
Steve Highfill is a business consultant in California Hot
Springs, California. His business is known as Ag-Relate. He
advises employers, usually in the agricultural domain, with
respect to labor relations and connected management issues.
Although he operates as a one-man business, he does contract
with other individuals who assist him on an ad hoc basis. Much
of his work is concerned with the representation of employers
who appear before the California Agricultural Labor Relations
Board. He has also represented employers before the NLRB.
In May 1997, Respondent retained Highfill to conduct a su-
pervisory training session and to speak to employees regarding
their right to union representation under the NLRA. None of
those meetings are under scrutiny by the instant complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1264
However, he had been accompanied in May by one of his con-
tract assistants, Maria Carmona. Carmona is a former organizer
for United Farm Workers Union, one who was trained by the
AFL–CIO in the art of organizing unrepresented employees.
As a result of their May visit, both Highfill and Carmona be-
came recognizable to many of Respondent’s employees.
After the election petition was filed on November 20, Re-
spondent again engaged Highfill to conduct its election cam-
paign. Virtually simultaneously, Stemilt Growers in We-
natchee hired him to conduct their election campaign. The
Union had filed a petition seeking to represent that employer’s
employees on the same day that it filed its petition to represent
Respondent’s. As a result, Highfill found himself in need of
other assistants. On December 2–3, he conducted meetings
with groups of about 25 employees, with Rick Plath present,
but not participating. On December 15, he held 10–12 smaller
group sessions with Respondent’s employees assisted by Car-
mona and Mayra Berrelleza. Later, on December 28 those
three, together with a fourth consultant, José Ybarra, arrived in
Yakima to present the final portions of the campaigns with both
companies. On that day the four prepared some posters to be
placed in Respondent’s lunchroom. At that point, Highfill and
Carmona traveled to Wenatchee for the finish at Stemilt, and
did not participate further in the Washington Fruit campaign.
Ybarra, like Highfill, operates his own consulting business, J.
C. Ybarra Management Services, from his office in Fresno,
California. He says about 50–75 percent of his business is
concerned with union organizing drives. The other 25 percent
deals with supervision, safety, and communication issues. He
says that he became involved in the Washington Fruit drive at
Highfill’s request, as Highfill was overextended by both cam-
paigns. Both he and Highfill have extensive backgrounds as
management consultants. Their backgrounds may be con-
trasted with those of Carmona and Berrelleza. Carmona had
just begun working with Highfill earlier in 1997, no longer
being a union organizer. Berrelleza is much more experienced
than Carmona, having served as Highfill’s exemplar for a num-
ber of years. She says she has been involved in about 70 elec-
tion campaigns. As noted above in section R,3, her participa-
tion consists primarily of describing her experiences during the
1985 Watsonville strawberry packing strike. Neither Carmona
nor Berrelleza qualifies as a professional in the field of man-
agement consulting.
Ybarra says his first contact with Respondent’s employees
came on December 29, the day after putting up the posters, as
he and Berrelleza began speaking with small groups of employ-
ees, as well as making an initial presentation to the pear packers
who had not previously been addressed. He says between De-
cember 29 and January 5, 1998, the two spoke to about 300
people. He remembers only one video presentation, which
overlapped January 5–6, 1998. During that same period, Plath
also spoke to small groups of employees, while Ybarra served
as his translator.
All of these individuals are paid well for their services.
Highfill’s normal rate is $185 per hour, including his time testi-
fying; Ybarra, $145 per hour; Carmona $50 per hour; and Ber-
relleza $600 per day, which for an 8-hour day, works out to $75
per hour. While testifying, their lodging and transportation
expenses were picked up (through Ag-Relate) by Respondent.
2. The evidence
The complaint, paragraph 11 and its subparts, alleges that
during December and January before the election, the consult-
ants made a variety of 8(a)(1) transgressions. Boiled down,
they cover multiple threats of job loss such as through plant
closure, sending fruit to other packing sheds, INS raids/depor-
tation, as well as threats to blacklist union supporters and/or
undocumented employees. In addition, it alleges threats of
unspecified reprisals, statements that union representation is a
futility, claims that if the Union won the election it would force
the employees to go on strike, and that wages would be frozen
and/or lowered.
The General Counsel relies on the testimony of nine wit-
nesses to support the allegations. Although these witnesses
attended a variety of meetings, each of the witnesses tended to
focus on evidence supporting a particular allegation, though
some described more than one. Moreover, as might be ex-
pected, they are not always clear with respect to when meetings
were, the sequence of meetings, the identities of the individuals
conducting the meetings, or the factual context in which re-
marks were made. Their testimony is often curt and incom-
plete.
The consultants, as might be expected due to the planned na-
ture of their presentations, describe their remarks within the
context in which they occurred and in a logical, neutral manner.
In view of the fact that there is no cohesive manner in which
to present topic by topic or sequential evidence, I conclude that
it is best to simply present each witness and to analyze each on
his or her own terms.
Concepción (Concha) Rivera-Loera: Rivera-Loera attended
a meeting conducted by Highfill which she mistakenly says
occurred on December 8. The General Counsel offers her tes-
timony in support of a closure threat, a threat of job loss and a
statement that the Union would force employees to go on strike.
She is a night-shift sorter who testified through the interpreter.
She testified that Highfill called the Union “a bunch of liars,”
saying that if the Union came in, the “only thing” it would ac-
complish would be to close the plant. Then she said: “He said
also that if the union were to succeed in coming in, the only
thing that they would do would be for us to have strikes. And
the only thing that would happen, would be that they would fire
us, and it would only cause problems for us, the employees.”
On cross-examination she admitted that she had poor recall
and recanted to some extent, acknowledging that Highfill used
the word “could” not “would” when referring to closing the
plant or going on strike.
In observing her testify, I had the distinct impression that this
witness was attempting to follow a script. Moreover, her ac-
knowledgement of poor recall is unhelpful to her credibility.
And, changing her testimony to describe Highfill’s words from
the certainty of prediction to the uncertainty of possibility is
worth noting.
Highfill, on the other hand, acknowledges that he referred to
the Union’s history of corruption and the convictions of its
international presidents for the purpose of asking the employees
WASHINGTON FRUIT & PRODUCE CO. 1265
whether they wished to trust such individuals. In Rivera’s
hands that became calling the Union a bunch of liars. In addi-
tion, Highfill denies that he ever said that the plant would close
if the Union came in, observing that he actually described the
obligation to bargain in good faith. That very obligation led to
his discussion of the bargaining process and what might happen
in the event the parties could not agree. One of the possibilities
left to the Union was to go on strike, he said, and he distributed
a list of then-current longest strikes in United States. See Gen-
eral Counsel’s Exhibit 102 (Spanish on one side, English on the
other). Of the 10 strikes listed on that exhibit, 6 of them were
being conducted by the Teamsters. The exhibit also showed the
length of each strike, ranging from 131 to 273 days. The cen-
tral portion of the document contains five “bullet points”—“1.
No one can predict whether or not there will be a strike; 2. A
strike requires employees to choose between supporting union
bosses’ decision to strike against choosing to keep working to
support their families; 3. If you chose to keep working to sup-
port your family, the union (acting as judge and jury) could fine
and assess you; 4. The constitution authorizes the Teamsters to
try, convict, and fine you for: leaving or trying to escape the
union or ‘crossing an authorized picket line’ to support your
families. [Citing the appropriate section of the Teamsters Con-
stitution].”
At the bottom of the Spanish side of the document, but not
the English,61 is the following exhortation: “It’s a risk of possi-
ble terrible consequences. Best vote no union and stay with a
free and winning team.” (Emphasis in original.)62
As noted, Highfill denies ever saying that the Company
would close the plant or that individuals would be fired in the
event the Union won the election. In fact, he testified that he
told employees that it was against law to fire employees be-
cause of the Union.
I am of the view that Rivera-Loera’s testimony is unreliable
and that of the two versions presented, I must credit Highfill.
Rigoberto Flores: Flores’ testimony regarding what Ber-
relleza supposedly said has previously been discussed in sec-
tion R,3, specifically that he had admitted being suborned to
say false things to the NLRB. The General Counsel alleged
that Berrelleza had said that the “boss” would prefer to close
the business rather than negotiate with the Union and it would
therefore be “useless” to negotiate with Union. In addition to
my accepting Berrelleza’s version in the previous discussion, I
observe that Flores omitted from his January 13, 1998 state-
ment any reference to negotiations being useless or that the
owner would prefer to close than negotiate with the Union.
Flores also testified that Berrelleza said that the Union liked
to have long strikes so that the boss could hire other people.
This reference was also omitted from that statement. Berrelleza
credibly denied making the remark.

61 According to Highfill, the identical English exhortation was cut
off in the copying process due to the shorter length of the paper when
mistakenly printed in landscape mode.
62 Statements such as those contained in GC Exh. 102 are generally
considered lawful and permissible under the free speech provision of
the Act, Sec. 8(c). Cases so holding are Coleman Co., 203 NLRB 1056
(1970), and UARCO, Inc., 286 NLRB 55, 76–79 (1987). The General
Counsel has not attacked this exhibit as unlawful.
Finally, Flores says that Berrelleza, when answering ques-
tions from someone regarding whether the Respondent would
call the Immigration and Naturalization Service, said that it
would not be in the Company’s interest to do so, but if they
came the Company could do nothing about it. He says she
went on to say that the Company had stopped the INS once, but
couldn’t do it again.
With respect to the INS, Flores’ testimony provides little
help here. First, it is unlikely that Berrelleza said anything
about the INS; that was a topic which was left to Highfill or
possibly Ybarra in later sessions. Second, saying that calling
the INS would not be in the Company’s interest is perfectly
lawful and simply common sense. Third, saying that Berrelleza
had claimed that the Company had stopped the INS once, but
wouldn’t do it again seems absurd. Berrelleza had no knowl-
edge one way or another about Company’s relationship with the
INS. The employees had more knowledge about that relation-
ship than she did. If she were to make any representations
about the history between the Company and the INS, employ-
ees would easily recognize her ignorance and take it for a false-
hood. It simply makes no sense for her to make any comment
whatsoever about a history of which she had no knowledge.
She certainly denies that she said anything regarding the Com-
pany’s supposed power over the INS. At best she might make
the common sense observation, as Flores said she did, that call-
ing the INS would not be in anyone’s best interest. Certainly
she did not make any threat to call the INS.
Flores has offered no credible evidence that Berrelleza said
anything unlawful.
Rafaela Romero: Romero is a day shift packer who testified
about a meeting she attended in late December, apparently with
Ybarra and Berrelleza. She said that the male consultant said,
“[T]he union could not obligate the company to negotiate” and
“[I]f the owners wanted to, they could stop the plant and they
could also send the fruit elsewhere and stop us from working.”
Her testimony was very brief and she did not supply any con-
text for the remarks. Her January 22, 1998 report to the Union
(R. Exh. 5) (actually signed as a declaration), is inconsistent
with that testimony. A Spanish document,63 which Romero
said she both read and had read to her, it was translated to Eng-
lish prior to the hearing by Board Attorney Miriam Delgado.
The pertinent language, in its entirety, is:
I was in a meeting when the consultant told me that the
owner did not have to negotiate a salary increase with the
Union, did not have to negotiate a medical/health plan, and
the Union could not force the owner to give us a contract.
The consultant did not say that the owner had the right
to send his apples to another packer if he wanted to, and
lay off the employees, and that the owner had the right to
close his packaging operation if he wanted to.
The most obvious inconsistency is her statement that the
consultant did not say that the owner had the right to send ap-
ples to another packer. The General Counsel has argued that,
although Attorney Delgado’s translation is correct, the witness

63 The document was taken by someone named George Minori, pre-
sumably from the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1266
missed a scrivener’s error in the Spanish, and that the word
“no” is really the word “nos,” a Spanish word for “us.” In that
event the sentence would read, “the consultant told us that the
owner had the right to send his apples to another packer.”
While I am sympathetic to the problems of scrivener’s er-
rors, I do not think it likely that one occurred here. The witness
testified that the drafter read it to her and that she read it her-
self. When counsel attempted to get her to look at it more care-
fully (even having the translator read it aloud to her again) so
that she could explain the discrepancy between her testimony
and the writing, she became defensive and would not cooperate.
Her behavior caused me to remark, “We’re getting into an ar-
gumentative situation now. The witness either doesn’t under-
stand, can’t understand, or won’t understand the difference
between what’s going on and what she said and what’s in the
paper.” She couldn’t bring herself to say that the written ver-
sion was a mistake. Accordingly, I find that the account set
forth in Respondent’s Exhibit 5 is accurate and that her testi-
monial version is not. I further find that her behavior requires
me to view her testimony with skepticism.
In addition, her testimony varies from Respondent’s Exhibit
5 in other respects. Her initial testimony was “the union could
not obligate the company to negotiate,” suggesting that the
consultant was saying the company could not be forced to ne-
gotiate at all. But in Respondent’s Exhibit 5 she said the con-
sultant asserted the owner did not “have to” negotiate specific
items, e.g., “a salary increase,” or a “medical/health plan” and
that the Union could not force the owner to give the employees
a contract.
The first observation to be made here is that Romero was
able, in the written version, to place the consultant’s comments
in some context, while on the stand she did not. Second, the
written report allows one to see that the consultant’s comments
are much more expansive than Romero was willing to say
while on the stand, demonstrating that she is withholding what
she knows.
Third, the nature of the consultant’s comments can reasona-
bly be seen as partial descriptions of perfectly lawful commen-
tary. If the consultant was accurately describing the collective-
bargaining process, he quite likely would have spoken about
examples of bargaining subjects—salary, health plan—and
spoken about how, even with good-faith bargaining in place,
the parties might be unable to agree. Indeed, the last clause of
the sentence (“the Union could not force the owner to give us a
contract”) is entirely accurate if no agreement is reached.
Ybarra testified that the three topics he discussed upon his
arrival on December 29 were union dues, union initiation fees,
and special assessments. He says that the subject of collective
bargaining was principally handled by a video. He says the
video was much more detailed than either he or Berrelleza
could present in the time allotted. He does say that both he and
Berrelleza said at various times that a collective-bargaining
contract would mean that things would likely not stay the
same—sometimes things do remain the same, while sometimes
employees get more, and other times they get less. He asserts
that neither he nor Berrelleza said anything beyond that.
Berrelleza recalls the meetings in late December somewhat
differently, saying that Ybarra was the first speaker. He ob-
served that he had been a Teamster himself and then proceeded
to do a financial calculation related to dues in the event the
Teamsters won election. She recalls Ybarra stressed good
communication skills, advised that the two of them would be
available to talk individually afterwards. At that point she says
she spoke of her experience as a union member.
Both deny saying anything resembling what Romero de-
scribes.
Given Romero’s shortcomings as a witness,64 I am com-
pelled to conclude that she did not provide credible evidence of
any violation here.
Efrain (Payo) Velasco: Velasco is a day-shift box machine
operator. His immediate supervisor is Christina Bautista. He
testified through the interpreter, although on cross-examination
it became clear that he is reasonably bilingual. When counsel
asked him how much English he spoke he replied, “a little.” A
review of his prehearing statements subsequently revealed that
he had said that he both reads and writes English, also suggest-
ing that he speaks English. Indeed, he has taken classes in
English. His explanation, that he preferred Spanish to English
because he was concerned about “legal terminology” which he
might not understand, does not sit well with me. He was there
to recite facts, not discuss law—legal terminology should not
have been a concern. If he was uncomfortable speaking Eng-
lish in a formal setting he could have said so. Instead, he gave
an answer which can only have been intended to mislead me
about his language skills.
The General Counsel called him to testify about the issues of
futility, being forced to go on strike, wage freeze/lower wages,
reprisals and immigration threats. He testified that he attended
five meetings with the consultants and at two of them remarks
were said concerning those subjects.
He said that on December 23, the third of the five meetings,
he recalled, “Mr. Highfill telling us that no one could force the
company nor the union to negotiate with us. Because he said
that they were the owners and they could do whatever they
wanted to. That they could freeze our wages and lower them
also. Another thing he said was that if the union were to enter
into the company, they would force us to go on strike even if
we did not want to.”
As with some other witnesses, there is no context in which
these remarks were made. It presented as if it had been a
memorized burst.
He also testified that he was absolutely certain that it had oc-
curred on December 23. Yet the evidence shows that Highfill
did not speak to the employees after December 15. Ordinarily,
a lack of memory concerning a date would be of little impor-
tance, but this witness’ insistence on the validity of that date
caught my eye. (“Q. Now, you testified that you [ ]—attended
an employee meeting on December the 23rd of 1997? A. Yes.
Q. Are you absolutely certain about that date? A. Yes. Q.

64 There is also evidence, which I do not find necessary to explore
here, that Romero has a bias against Respondent due to her belief that
Respondent has violated the Family Medical Leave Act with respect to
an absence from work due to a family member’s injury. She is a plain-
tiff in a Federal suit regarding her loss of pay; she was initially denied
reinstatement but was back to work at the time of the hearing. At that
time the suit was still unresolved.
WASHINGTON FRUIT & PRODUCE CO. 1267
How? A. Because I remember and that’s the testimony that I
gave. Q. Did you make a note of it on a calendar or some piece
of paper that that was the actual date? A. No. I do not re-
member.”) At one point he is attempting to impress me with
the precision of his memory, only to be forced to say he did not
remember whether he had even written it down.
The second meeting which he testified about was the last
meeting. He says it occurred on January 5, 1998 (a date to
which the General Counsel led him). He testified that consult-
ant José [Ybarra] told employees that the Company could not
call the INS and that it would not be the Company’s fault if the
INS came. He asserts that Ybarra harped on this issue 10 to 15
times during the the 15-minute discussion. Oddly, his version
does not even amount to a threat to call the INS; it is instead, a
reassurance that the Company would not do so.
On cross-examination, counsel suggested that what Highfill
had really said was that the Union couldn’t force the Company
to agree to the Union’s demands, but Velasco, replied that he
didn’t remember that. Indeed, he became somewhat defensive,
his recollection seemed to recede and he went blank. And one
point he mixed up the words “could” and “would” particularly
when referencing the union forcing employees to go on strike.
Finally he settled on “would force us.”
Significantly, he admitted that the consultants generally used
examples when making their points, admitting there was a ma-
jor context in which to place their remarks. Despite that admis-
sion, at no point did Velasco ever even make an effort to de-
scribe a specific example. The consultants, of course, said they
presented their examples in specific detail. Velasco’s acknowl-
edgment here demonstrates that he was not testifying about the
words the consultants used, only the conclusions which he drew
from them, conclusions which are unsupported by facts.
Although Velasco said the words which the General Counsel
needed to make its case, I conclude that his testimony is not
reliable, but is instead conclusory and deliberately designed to
veil the truth. He knows the actual words the consultants used
but declines to reveal them. He has simply not been forthcom-
ing. He wants me to accept his conclusions at face value.
I conclude that Velasco’s testimony is unreliable and an in-
adequate foundation upon which a finding that the Act has been
violated can be based.
Antonio Salazar: As observed earlier, Salazar is a cold room
employee working under Bautista’s supervision. He is a recog-
nized union activist. The General Counsel called him to testify
about several allegations against the consultants, including
statements that unionization would be a futility, that the Union
would force the employees to strike, that reprisals would be
taken in the event the employees chose union representation
and that they made threats related to deportation.
Salazar testified that during the first meeting conducted by
Highfill, during the first week in December, Highfill “started
telling us that, really, the union had some very strict rules by
which, on occasions, they would make it mandatory for us, the
workers, to have stoppages or strikes. He asked if we were
aware of that work stoppage that had occurred at that time in
July and August of ‘97 at [United Parcel Service], and also the
millions of dollars that had been lost. He also asked if we were
aware of the accusations that were being held against Mr. Ron
Carey, who is the president of the Teamsters. That’s most of
what I remember.” Salazar also recalls Highfill discussing
union dues.
He also recalls Carmona saying something similar regarding
the Union obligating employees to strike and to participate in
work stoppages.
On cross-examination Salazar admitted that with respect to
the Union that the consultants “may have said” that the Union
could discipline employees who didn’t strike. He even admit-
ted that Highfill never said that the Union would strike Re-
spondent. He also agreed that in the January meetings neither
Ybarra nor Berrelleza ever said that the Teamsters would strike
Respondent.
At the second meeting, apparently December 15, Salazar
said that Highfill presented a document describing a history of
strikes. While testifying about this meeting, he was asked if
Highfill said anything about wages and he replied: “He said
that about those wages, if the union won, while they were mak-
ing the contract, that our wages would be frozen.” In addition,
Salazar said that Highfill responded to a question by employee
Alicia Mendoza who had asked if there was any truth to a ru-
mor that the Company would call the INS. Salazar recalls
Highfill responding, “No, the company will not bring them in.
The one that might possibly bring them in would be the union.”
As discussed previously Highfill did indeed bring a list of
current strikes to the meeting and distributed it. Second, High-
fill acknowledges that when describing the bargaining process
he stated that wages would remain the same until a new agree-
ment had been reached and that the company could not make
changes during that period. Thus, Salazar’s testimony about
wages being frozen seems likely to be almost accurate, missing
Highfill’s distinction that during negotiations employers are not
permitted to make unilateral changes in working conditions. In
fact, Salazar agreed with counsel on the point:
Q. Okay. He just—he just said that during the bar-
gaining process there could not be changes made without
negotiating?
A. Exactly, yes.
With respect to the response Highfill gave to Mendoza, inso-
far as it relates to the Company’s response it is entirely lawful.
Insofar as the Union is concerned, Highfill clarified that as he
stood before the group he realized that the question presented
an opportunity to explain by example a circumstance under
which the Union might actually benefit from an INS raid. Ear-
lier that month there had been a well-publicized INS raid on an
unrelated company, Brewster Heights Packing, which was non-
union. The immigration service had arrested and deported
several undocumented aliens as a result of that raid.
He explained that under a union contract which had a union-
security clause, new employees are usually obligated to pay an
initiation fee to become union members. He pointed out to the
employees that if Brewster Heights had been unionized, the
only entity which would benefit from the raid would be the
union because that employer would be obligated to replace the
deported employees with new employees. Under a normal
union contract, the replacements who chose to comply with the
union-security clause would have to pay initiation fees. In that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1268
sense, he said, the union would be the only beneficiary of an
INS raid. Despite that he did not suggest that the Union had
any real incentive to call the INS. Ybarra even said he did not
think that the Union was “that mean.”
I find Highfill’s description to be more detailed and more ac-
curate than that provided by Salazar and conclude that Salazar’s
testimony is simply incomplete. In that circumstance, I find
that he has not fully described what Highfill said and that what
Highfill actually did say was perfectly lawful.
Insofar as threatening reprisals is concerned, I found no
place in the record where Salazar made such contention. There
is an incident involving repartee between Salazar and Ber-
relleza concerning a consultant named Leticia Maravilla whom
Highfill had discharged. It did not involve a threat by Respon-
dent to take any reprisal against any employee for selecting the
Union.
Considering the context in which the remarks Salazar de-
scribed occurred, and considering that his recollection was
incomplete, I am unable to find anything in his testimony which
supports the allegations in the complaint.
Maria del Rosa (Rosio) Diaz: Diaz’ union activity has pre-
viously been discussed. She was one of the leading employee
organizers and later married professional organizer Andrew
Barnes.
She testified that about 2 weeks before Christmas she at-
tended a meeting in the lunchroom conducted by Highfill,
Carmona and another person she did not know (probably Ber-
relleza). She says there were 10 to 15 employees in attendance.
She says Highfill told them, “That the union would obligate us
to go on strike. And that we would not matter to the—we
would be of no importance to the boss, because he could re-
place us. And that we could lose our job.” She was unable to
remember anything more which occurred at that meeting.
As with other witnesses, this testimony is without any con-
text and is very curtailed. She could remember nothing said by
either Carmona or the third person. Yet we know that Ber-
relleza described her 1985 strawberry strike experience and that
Carmona warned employees about certain organizing tech-
niques used by professional organizers. As an organizer her-
self, she should have remembered what Carmona described.
Similarly, Berrelleza’s graphic description of the 1985 strike
should have been recalled. Rather clearly, Diaz is providing
information through a selective memory.
Again, one can perceive that Diaz is not describing the words
which Highfill used, but is instead editing his remarks in a
manner best suited for the Union’s purpose. We know that his
discussion of strikes occurred only after he explained the bar-
gaining process and what might happen in the event that
agreement could not be reached. Moreover, Highfill, as previ-
ously noted, did speak about the Union’s constitution which
gave it the right to discipline members who did not join an
authorized strike. We also know that Highfill presented his list
of ongoing strikes and spoke of the economic impact strikes
have on employees. He testified: “[T]here was a discussion of
strikes at some juncture and I don’t exactly know when it was, I
said that the law currently in the United States is that when
there is a strike, a company can still lawfully replace economic
strikers. And I defined that term for them. Told them what
economic striker meant.” He also denied saying that employ-
ees were useless because they could be replaced or fired.
I conclude that Diaz’ testimony is too abrupt and pointed to
be credible. She is obviously influenced by her strong belief in
the union movement. She is unable to testify fully and com-
pletely and in an objective manner. She is not without bias.
Highfill’s testimony is much more credible. Accordingly, I
conclude that Diaz’ testimony does not support the complaint.
Marcelino Gonzalez: Gonzalez testified through the inter-
preter. He is illiterate in Spanish and, of course, understands
very little English and speaks even less. I concluded, while
observing him, that he doesn’t understand much more than
simplistic phraseology. Sophisticated argument, such as that
engaged in by more educated persons, are simply too subtle for
him. Nuance strains his understanding. In addition, his anger
at being transferred from his previous cleanup job to working at
the dumper was a significant factor in his approach to testi-
mony. He believes that he was transferred from one job to the
other because of his union activities. Of course, the complaint
contains no such allegation. He nevertheless believes it to be
true.
He is a strong union adherent. Even though he cannot read
or write, he did successfully solicit a few signatures on authori-
zation petitions on behalf of the Union. He is gregarious and
talkative. He is mischievous as well, having taken part in Chuy
Andrade’s distribution of the procompany T-shirts after one of
the video meetings.
He testified that he attended all of the preelection meetings
conducted by the consultants, but he tends to conflate them. He
actually described only three meetings, one with Highfill
(whom he misnamed “Garfield”), one with Ybarra (apparently)
and one with Plath (whom he actually knew).
At the first meeting he described, he said Highfill/Garfield
told him that the Union would force the employees to strike.
He gave an affidavit dated December 16, either only 1 day from
the December 15 meeting or 2 weeks after the December 3
meeting, but did not mention this subject in that affidavit. The
subject does appear in a second affidavit (R. Exh. 2), dated
February 3, 1998, but in a decidedly different manner.
He also says that Ybarra, in the second meeting, said that the
employees would be forced to strike. He does not explain why
that would be so. He doesn’t say whether the strike would
occur because an agreement would not be reached, or that the
Company would bargain in bad faith thereby causing a strike or
that the Union would force a strike for reasons of its own. He
simply does not explain. This, of course, coming from Ybarra,
could not have been included in the December 16 affidavit, but
does appear in Respondent’s Exhibit 2. That exhibit, taken in
English by a Board agent, demonstrates at least some confusion
on Gonzalez’ part. I quote the pertinent portion of the affidavit:
These meeting [sic] were conducted by consultants.
Sometimes Tommy Hanses was present. At the first meet-
ing there was a white man name [sic] Highfill, and two
women Maria Carmona and “Maravilla.” They all said the
union was bad. They talked to us about strikes that the un-
ion was going to force us to do.
WASHINGTON FRUIT & PRODUCE CO. 1269
In the last company meeting another consultant, Jose,
told us that we did not have to vote, but not voting was
like a vote for the union.
As can be seen, this affidavit is vague. It does not describe
any words which the consultants supposedly used. Further-
more, it does not describe José Ybarra as having said anything
about strikes. It only describes in conclusionary terms strikes
which the Union was going to force them to take, according to
Highfill, not Ybarra.
Among other things, this is an example of Gonzalez’ inabil-
ity to discern nuance in what Highfill was really saying. Again,
there is no question that the consultants cited the historical fact
that Teamsters presidents have been convicted of corruption.
That fact to Gonzalez’ recollection became “the union was
bad.” There is also no doubt that Highfill described the bar-
gaining process and described the few options left when no
agreement is reached, including a strike. There is also no ques-
tion that Berrelleza (misidentified as Maravilla) described her
experience in the 1985 strawberry strike, and that Highfill
spoke of the constitutional right of the Union to impose sanc-
tions on members who declined to join authorized strikes. This
is a far cry from Gonzalez’ conclusionary claim that somehow
the Teamsters would force employees to go on strike, or from
the other possibility, that the Company would bargain in bad
faith, thereby forcing a strike.
Moreover, some of Gonzalez’ testimony is simply a garble.
In further describing what Ybarra supposedly said about strik-
ing, he gave the following testimony which included a refer-
ence to some sort of unspecified reprisal:
Q. (BY MS. DELGADO) As best as you can recall, who
spoke during that meeting, that second meeting?
A. Mr. Jose.
Q. And as best as you can recall, what did he say?
A. Well, he was talking to us as regards where the un-
ion was going to take us.
Q. And do you recall what he said about that?
A. That it was going to force us to strike.
Q. Okay. And do you recall if you made any comment
at that meeting?
A. Yes.
Q. And what do you recall?
A. I answered why was the union going to force us to
make strikes if that was not the truth.
Q. And do you recall if any of the consultants that
were present answered your question?
A. Yes.
. . . .
Q. BY MS. DELGADO: Okay. Who answered the ques-
tion?
A. Mr. Jose.
Q. And what was the answer that you got from him?
A. He said that the company would take reprisals
against us if they were to lose.
Quite obviously, Gonzalez was making it up as he went
along. He was being asked about strikes, and described a ques-
tion he supposedly asked Ybarra, “[W]hy would the union
force us to strike?” To that, Ybarra supposedly replied, “[T]he
company would take reprisals against us if they were to lose
[the election].” This simply makes no sense. In essence he is
saying that Ybarra said the Union would force a strike because
the company would take reprisals if it lost the election. Why
would Ybarra say something as nonsensical as this?
Accordingly, because he has told inconsistent stories, be-
cause he is unable to recall matters in any sort of sensible con-
text, and because he seems to have a bias not only favoring the
Union, but disfavoring the Company, I conclude that Marcelino
Gonzalez’ testimony is unreliable and does not support the
allegations in the complaint.
Maria de Jesus (Chuy) Andrade: Chuy Andrade, like Rosio
Diaz, was one of the principal employee organizers. She had
been the victim of some 8(a)(1) conduct in October for talking
about the Union while working and stood up to Bautista when
Bautista questioned her filching some procompany T-shirts
which were not intended for union leaders at the end of a
preelection video. Her proclivities were well known to Re-
spondent’s supervision and managers, though probably not to
the consultants. She attended the same meetings as activists
Rosa Salas, Marcelino Gonzales, and Efrain Velasco. She, too,
testified through the interpreter.
The General Counsel offered Andrade’s testimony to support
its contention that the consultants made statements constituting
an unlawful threat of closure, that union representation would
be a futility, that jobs would be lost, that the employer would
send its fruit elsewhere, that employees would be forced to
strike and that wages would be frozen or lowered.
Andrade testified about four meetings she attended con-
ducted by the consultants. A review of her testimony shows
that she is somewhat confused about the sequence of the meet-
ings. Moreover, she believes Mayra Berrelleza attended all of
the meetings, although the credible evidence shows that Ber-
relleza was not present during the early December meetings.
She also claims that either Carmona or Berrelleza did most of
the talking at these meetings. This, too, is contrary to the
credible evidence, as Highfill and Berrelleza both spoke at
length December 15 meeting and Ybarra was the major speaker
at the meetings in the 10 days before the election.
She was taken through each of the four meetings she de-
scribed. She testified that the group of employees who usually
accompanied her to these meetings was the same, and that it
included individuals who were the most active in the Union.
She testified that during the first meeting, which she did not
make an effort to date, Carmona said, among other things:
{T]hat everything that the union was telling us was all lies,
that they were all lies what they were saying, they were all
false promises. She said to us that [neither] the union [n]or
us, [. . . ] no one was going to make the company pay us more
money than what the company could pay us. She also told us
that if we ask for a dollar raise, or 50 cents raise, that they
would not pay that because neither us nor the union could pay
us that if the company could not do that. She said that they
were the owners, and neither the union nor us would make
them pay us more. [Edited for clarity.]
Andrade interrupted Carmona: “I stood up, and I was very
angry. I told her—I told her that we were old enough, we were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1270
big enough, why didn’t they let us organize ourselves? Why
didn’t they let us tell them what we wanted? I remember that
she told me that I was a foolish child, that I didn’t even know
what I wanted.” At the time she testified, Andrade was still
angry over what she regarded as an insult. Carmona denies
ever calling an employee either “foolish” or a “foolish child.”
One thing is clear under Andrade’s version, that Carmona
had been attempting to explain that in the bargaining process an
employer would not pay more than it could afford—an em-
ployer could not pay money it did not have. It is equally clear
that Andrade regarded that remark as unacceptable, because she
did not understand Carmona’s description to be in the abstract.
Andrade continued, “I remember Maria Carmona saying that
if the Union entered that the Company could take their fruit to
other warehouses, and that we could be left without a job, and
that neither us, the workers, nor the union could do anything
because they were the owners and they were the ones that
would decide.” And then she testified, “I don’t remember if it
was Maria Carmona or if it was Mayra [Berrelleza], the one
that told us. She told us that if the union were to enter that we
were risking losing our jobs. She said ‘You could lose your
jobs,’ and she said ‘They will make sure that you will never
find work in any other warehouse.’ I asked her, ‘Why? We are
not criminals. We are in a free country. We can organize our-
selves whenever we want to.’”
On cross-examination, she added that if the Union won, that
the employees would be forced on strike and nothing could be
done about that. She also said that Mayra told them that if
there was a strike the Company had the right to operate the
plant with other workers.
Keeping in mind that Carmona and Berrelleza had specific
roles to play, much of Andrade’s testimony here seems to be
only partially accurate while at the same time a distortion of
what was actually said. First, it seems entirely unlikely that
Carmona said much of anything about the bargaining process.
Highfill was the one responsible for the subject matter. Car-
mona said virtually nothing during the early December meeting
and only described union organizing tactics at the December 15
meeting.
It is true, as has been previously noted, that Highfill did
speak about what might happen in the event that collective
bargaining failed to result in an agreement. In that event, he
said, a strike might ensue. And, as previously noted, he was
prepared with his list of ongoing strikes. Furthermore, Ber-
relleza detailed her 1985 strawberry strike experience. One of
them also spoke of the United Parcel Service strike which was
then in the news. Andrade concedes the consultants spoke of
the Watsonville strawberry strike, but denies anyone mentioned
the UPS labor dispute.
Her concession that Berrelleza dealt with her experience in
Watsonville is also a concession that the consultants were stick-
ing to their planned roles. Therefore, if Highfill and Berrelleza
were performing their duties, why would Carmona not be per-
forming hers? She was there simply to describe union organiz-
ing tactics which she characterized as deceptive. All three de-
nied ever talking about sending fruit to other packers or that
unionization equated with job loss. Indeed, a threat to send
fruit to other sheds makes little sense in this community, where
Respondent is one of the largest, if not the largest, apple pack-
ers. Furthermore, Respondent had only recently completed a
large capital investment in equipment. It is also belied by
Plath’s discussion shortly before the election in which he de-
scribed the Company’s future, noting that more trees had been
planted and that the Company’s future was bright. For the
consultants to say that Respondent would send its fruit to other
packers simply because a union had organized it would not be
seen as a believable deterrent.
I conclude, therefore, that Andrade’s testimony is similar to
what has been determined with other witnesses—that she has
misunderstood or has distorted what was really being said. Her
claim of job loss and blacklisting was simply an extrapolation
she drew from Berrelleza’s Watsonville experience, not an
independent threat from Berrelleza.
With respect to the second meeting, Andrade says that the
consultants who participated were Ybarra (Jose) and Berrelleza
(Mayra). Again, she cannot put a date on it, but it must have
been after Ybarra arrived on December 28. She describes what
he had to say: “I recall that Mr. Jose said that if the union were
to enter—if the union were to enter, that we were running the
risk of losing our jobs—that we were running the risk of losing
our jobs, they could even close the plant; and that just because
we were participating in the union that we could be left without
a job.”
She says that Berrelleza told them: “if the union were to en-
ter, that we could be replaced by other workers. She said that
we could be replaced, and that the company could close down
whenever they wanted to, and that we would lose our job. She
also said that if the union were to enter, that they could make it
mandatory for us to go on strike or have a work stoppage, and
she said that we would have to do that. And I told her that, no,
that if we didn’t want to do that, that we wouldn’t have to do
what we didn’t want to do.”
On cross-examination, she added that Berrelleza said that in
the event of a strike, and the Company could not get replace-
ments, the Company might have to send its fruit out to other
packers. At other points, she said that Mayra either “could” or
“will” take its fruit to other warehouses. Later, Berrelleza says
that Mayra told them that in the event of a strike, the company
“might” send the fruit out. Frankly, her inconsistent testimony
here does not leave me with much confidence in her accuracy.
She also said, whether it was in the second or third meeting,
that Berrelleza spoke in more detail about her Watsonville ex-
perience:
(WITNESS ANDRADE) . . . Mayra said that if the union
entered, that the same thing would happen to us, what
happened to her mother in Watsonville, California.
Q. Okay. Besides the Watsonville, California story, do
you recall if Mayra said anything else regarding the union
coming into the plant?
A. Yes. She said that if the union were to enter, that
we would be fired.
Q. What was—do you recall what she said about Wat-
sonville, the story about Watsonville, California?
A. Yes.
Q. And what was that?
WASHINGTON FRUIT & PRODUCE CO. 1271
A. She said that the same thing that had happened to
her mother would happen to us, that if the union were to
enter, that they were going to fire us just like she had been
fired, simply for being involved in a strike; just because of
being involved in that strike, that her mother had been
fired from her job, and that the same thing would happen
to us, that they would fire us, and that we would be re-
placed, and that they would make sure that we would not
be hired in any other packing shed.
This testimony invokes a startling embellishment. For the
first time we see a claim that Berrelleza’s mother was involved
in the 1985 the Watsonville strawberry strike. Furthermore,
according to Andrade, the mother had been fired and had been
blacklisted.
Berrelleza testified that she never said any such thing and
furthermore said that her mother was never involved in the
Watsonville strike. I certainly have no reason to discredit Ber-
relleza on the point. It is possible, but entirely unlikely, that
she would need to invent a fictitious mother who suffered ex-
tensively during the Watsonville strike. Yet her own experi-
ence was quite sufficient for the purpose. Accordingly, I con-
clude that Andrade’s testimony is more than simple embellish-
ment; it is an untruth.
Andrade also asserts that during the third meeting that Ber-
relleza said that if the Union got in, it would be “useless” be-
cause the Company would never negotiate with it. In addition,
the Company would lower or freeze the wages, that the Union
would require the employees to go on strike and that the em-
ployees would be replaced, the Company would close and the
employees would lose their jobs.
Oddly, on cross-examination she recalls that Berrelleza said
that in the event of a strike, if the Company couldn’t find em-
ployees to do the work, it might have to close. She also re-
members Berrelleza saying that if the Union won the election
and they began to negotiate, that the workers could end up with
less than what they have now, the same, or more. In almost the
same breath she asserted that Berrelleza said, “[I]f the union
were to win, that they (Respondent) could freeze our salaries,
even lower them.”
Again, Andrade’s testimony leaves me without confidence.
She is inconsistent, she is incomplete, and she is inventive. Her
testimony pales when compared to that of Berrelleza and
Ybarra. I cannot rely upon it and it cannot be used to support
the allegations in the complaint.
3. Commentary and conclusions
As can be seen in the foregoing, each of the witnesses prof-
fered by the General Counsel in support of the allegations con-
cerning the consultants has been discredited. In nearly all of
the cases, they were internally inconsistent, told multiple stories
either on the stand or in their prehearing statements, were em-
bellishing and/or telling falsehoods. I find it curious that each
of these individuals is a Spanish-speaking member of the activ-
ist group. None of the English-speaking activists, such as Pam
Smith, or nonactivists (whether Spanish- or English-speaking)
ever heard anything like that reported by this group. If Re-
spondent were actually saying such things to its employees as
part of a common plan, surely such things would have been
said to English-speaking employees. Yet there is no evidence
whatsoever to that effect.
Furthermore, all the witnesses called by the General Counsel
to support this portion of the complaint said that they had spo-
ken to no one (other than the lawyers) about what they testified
to. I find that denial disingenuous. This organizing campaign
was a momentous event in their lives. It would have been a
common topic of conversation. Statements such as those which
were described would have spread like wildfire throughout the
plant. Yet these employees would have me believe that they
said nothing about them to other employees.
These two factors, when connected to all the inconsistencies
in their stories, lead me to the conclusion that these individuals
have either chosen or been led to a path of deliberate falsehood.
I am not certain whether these employees, like Flores, were
suborned or whether their zeal led them astray. Individuals
with strong feelings such as those held here are often known to
believe that the end justifies the means. I think these individu-
als fell prey to that type of thinking.
This is not to say that Highfill and his staff did not play
hardball here. In utilizing truthful, but unpleasant examples,
Highfill’s group was able to convey a very strong negative
image of union representation. Nonetheless, that message was
protected by Section 8(c) of the Act.
Section 8(c), of course, does not protect coercion. Yet, at no
place can I find in the record any credible evidence supporting
the types of coercion that are commonly seen in speeches of
this nature and which would be beyond the bounds of Section
8(c). The employees’ claims that the consultants said wages
would be frozen or that strikes were inevitable are simply
fragments of what was actually said. In fact these fragments
almost certainly are deliberate. Such evidence does not rise to
the level where it could be said the remarks may reasonably be
construed to be saying that the existing system of wage in-
creases would be stopped either if the Union won the election
or to await a first contract. Compare Daily News of Los Ange-
les, 315 NLRB 1236 (1994), enfd. 73 F.3d 406 (D.C. Cir.
1996). Similarly, such evidence does not lead one to the con-
clusion that the consultants were saying strikes were the inevi-
table result of voting for the Union or that a contract could not
be reached without a strike. Compare Vestal Nursing Center,
328 NLRB 87 (1999). Employee evidence of these and other
remarks, such as the threats to close, to process the apples
elsewhere or to call the INS is simply untrustworthy.
The Board and the courts have said that Section 8(a)(1) and
8(c), when read together, leave an employer free to communi-
cate with his employees so long as the communication does not
contain a “threat of reprisal, or force, or a promise of benefit.”
NLRB v. Gissel Packing Co., 395 U.S. 575, 617–618 (1969);
General Electric Co., 332 NLRB 919 (2000); Advanced Mining
Group, 260 NLRB 486 (1982); Coleman Co., 203 NLRB 1056
(1970); and TRW, Inc. v. NLRB, 654 F.2d 307 (5th Cir. 1981).
None of these factors was proven here. The consultants’
speeches were protected by Section 8(c).
As a result, I conclude that the General Counsel has failed to
prove that Respondent violated the Act as alleged in paragraph
11 of the complaint, except for that portion relating to Bautista
which has been discussed in another section.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1272
IV. OBJECTIONS TO THE OUTCOME OF THE ELECTION
As previously noted, the parties entered into a Stipulated
Election Agreement which was approved by the Regional Di-
rector on November 26, 1997. Pursuant to that agreement a
representation election was conducted on January 8, 1998, in
the following unit:
All regular hourly production and maintenance employees
(including apple and pear employees), warehouse, shipping,
repair yard, and refrigeration employees; excluding all sala-
ried employees, office clerical employees, all other employ-
ees, and guards and supervisors as defined in the Act.
The tally showed that of approximately 300 eligible voters,
121 votes were cast for representation by the Union, 161 were
cast against representation and there were 8 challenged ballots
and 1 void ballot. The challenges were insufficient to affect the
outcome of the election and the final tally showed that the Un-
ion lost the election by 40 votes.
On January 15, 1998, the Union filed 23 objections to con-
duct affecting the results of the election. The Regional Director
investigated the objections and on June 12, 1998, issued his
report and recommendation on objections in which he dis-
missed Objections 4, 13, and 15. He consolidated the remain-
ing objections with the complaint so that the matters could be
heard together. On June 23, 1999, I dismissed Objection 22 on
the record.
A large number of the objections simply track the complaint
and have been dealt with in the unfair labor practice section of
this decision. Those are Objections 1, 2, 3, 5, 7, 8, 16, 18, 19,
and 20. The merits of these objections will not be discussed
further here. Where necessary, any remedy required will be
included in the remedy and Order portion of this decision.
There are two objections, Objections 14 and 17 which could
have been alleged as unfair labor practices, but were not. Ob-
jection 14 alleges that Respondent solicited grievances, implic-
itly promising to remedy them, in order to encourage employ-
ees not to support the Union. There is no evidence supporting
this objection and the Union’s brief does not refer to it. Ac-
cordingly, Objection 14 will be dismissed. Similarly, Objection
17 alleges that the Employer engaged in, or gave the impression
of engaging in, surveillance of workers engaged in concerted,
protected activity in nonproduction areas in nonworktimes. In
support of this objection the Union points to an incident occur-
ring on May 30, 1997. This was the subject matter of para-
graph 7(a) of the complaint which I dismissed on the record on
June 30, 1999. Aside from its obvious failure of proof, I ob-
serve that the incident occurred about 6 months before the peti-
tion was filed. Accordingly, it did not occur during the preelec-
tion critical period. See the Board’s rule as set forth in Ideal
Electric & Mfg. Co., 134 NLRB 1275 (1961). That case re-
quires objectionable conduct to have occurred between the
filing of the petition and the election; therefore, this matter will
not be pursued further.
That leaves for resolution Objections 6, 10, 11, 12, 21, and
23. They will be dealt with seriatim.
Objection 6. This objection alleges that Respondent offered
prizes, such as color televisions to workers in order to gauge
antiunion sentiment and to induce workers to express antiunion
statements orally and in writing. The evidence in support of
this allegation deals with a preelection raffle. At volume 3,
page 384 of the transcript, the parties entered into the stipula-
tion set forth in the footnote.65 Based on my understanding of
the law and taking into account the stipulation, on June 23,
1999, I orally dismissed the unfair labor practice allegation
dealing with the raffle, paragraph 12 of the complaint, but per-
mitted this objection to stand. Since that time the Board has
revisited the entire field of preelection raffles. In Atlantic Lim-
ousine, Inc., 331 NLRB 1025 (2000), the Board set forth a new
rule regarding preelection raffles, saying that it would be ap-
plied “to all pending cases in whatever stage.” (Id. at 1030.)
The new rule is aimed at preserving the “laboratory conditions”
which the Board seeks to preserve during the preelection pe-
riod. Specifically, the rule says that preelection raffles will be
deemed sufficient to overturn a Board election “if (1) eligibility
to participate in the raffle or win prizes is in any way tied to

65 The stipulation:
1) Respondent, as part of its election campaign, held a con-
test.
2) Beginning in early December 1997, Respondent posted in
the warehouse lunchroom generally two questions and answers
per week. [ ] General Counsel’s Exhibit 41 is a true and correct
copy of the completed posting, except that question and answer
number 4 was not posted or used in the contest, and the fax
transmission information did not appear on the posting.
3) As to the instructions and questions, the contest form was
uniform. [ ] General Counsel’s Exhibit 42 is a true and correct
copy of a completed contest form.
4) Respondent divided the raffle participants into three
groups, herein “raffle groups.” These groups consisted of the fol-
lowing employees: One raffle group was comprised of day shift
apple line employees, a second raffle group consisted of night
shift apple line employees, and a third raffle group consisted of
shipping/pear line/warehouse/repair yard and refrigeration em-
ployees.
5) Contest forms for each raffle group were sequentially
numbered, based upon the number of employees in each raffle
group. The same number on each contest form appears on the
bottom, right-hand corner and at the top. These numbers were
created by respondent solely for the contest. The colors of the
contest form numbers for each raffle group were different. The
colors used were red, black, and most likely, blue.
6) After completing the questionnaire, General Counsel Ex-
hibit 42, each employee who participated tore off the bottom,
right-hand corner of the questionnaire.
7) Completion of the questionnaire, General Counsel Exhibit
42, was necessary to be eligible for the raffle drawing.
8) Prior to Respondent grading the questionnaires, completed
questionnaires were placed into a particular box designated for the
employee’s particular raffle group.
9) Respondent graded the contest forms based upon the ques-
tions and answers appearing in General Counsel Exhibit 41.
10) Employees, to be eligible for contest prizes, had to an-
swer all the questions correctly, based on General Counsel Ex-
hibit 41. The prizes and their after-tax cost for each group were:
first prize, $430.39, a t.v. with integrated VCR; second prize,
$182.90, a barbecue; and third prize, $139.86, a VCR. The raffle
drawings for each of the raffle groups were separately conducted
by respondent on January 2, 1998.
11) Prizes were awarded to the winning participants in each
raffle group.
WASHINGTON FRUIT & PRODUCE CO. 1273
voting in the election or being at the election site on election
day or (2) the raffle is conducted at any time during a period
beginning 24 hours before the scheduled opening of the polls
and ending with the closing of the polls. The term ‘conducting
a raffle’ includes the following: (1) announcing a raffle; (2)
distributing raffle tickets; (3) identifying the raffle winners; and
(4) awarding the raffle prizes.”
In examining the stipulation, I observe that the announce-
ment of this raffle occurred during the first week of December
1997, a month or more before the election. Furthermore, I
observe that the drawing itself was held on January 2, 1999, 6
days before the election. Accordingly, I am unable to conclude
that this raffle ran afoul of the Atlantic Limousine rule.
Furthermore, I am not persuaded that this raffle sought to in-
duce employees to reveal their union sympathies and desires. It
was instead designed as a debating tool to induce employees to
vote against the Union. It set forth questions and answers for a
true-false quiz to be given as a condition for becoming eligible
for the drawing. The employees were divided into three groups
for three separate drawings. One group was the day shift, one
group was the night shift, and one group included all of the
shipping/pear line/warehouse/repair yard and refrigeration em-
ployees. The quiz for each group was separately colored and
each quiz was numbered at the top and the bottom. The em-
ployee, to be eligible for the drawing, first filled out the quiz
and tore off the bottom containing the number as proof that the
number drawn belonged to him or her. Second, all forms were
graded consistent with the answers as posted on the lunchroom
wall. They are found in General Counsel’s Exhibit 41 and in
revised format are set forth in the footnote below.66 Those

66 GC Exh. 41 as follows:
1. Q. Union members never stop paying for their jobs. A.
True, because the union requires employees to pay dues as long as
they work under a contract.
2. Q. If the union negotiates a contract that does not include
a raise for the employees, the union will not make the employees
pay dues. A. False, because the union requires its members to
pay dues in every company where it has a contract.
3. Q. It is against the law for union agents to make promises
to workers that they know they cannot keep. A. False, unfortu-
nately, union agents can legally promise anything they think will
convince people to vote for them.
4. [Not utilized during this election]
5. Q. The union gives workers more pay and better benefits.
A. False, the union does not pay one cent worth of wages and
benefits. The employer is the only one who pays for these
changes.
6. Q. Union ‘initiation fees’ can be well over $100 and any-
one who fails to pay them when the union says may have to lose
their jobs. A. True, if the union gets a contract it can require
every new employee to pay a fee or be fired.
7. Q. It is possible for those making minimum wage ($5.15
per hr.) to lose money by belonging to a union. A. True, if the
employer and the union sign a contract that offers minimum
wage, dues later required by the union will cause to (sic) employ-
ees to actually make less than they did without the union.
8. Q. The union enforce the employer to pay more than he is
willing to pay. A. False, because the law does not require any
employer to pay more than he is willing to pay.
quizzes which answered all questions correctly were placed in a
box for the drawing.
Since all of the quizzes in the drawing were correct and since
there were three winners for each group, those who held match-
ing numbers, no one except the winners was identifiable. In-
deed, even the identities of persons without perfect answers
could not be known. Furthermore, although the prizes (combi-
nation television/VCR, barbecue, VCR) ranged in value from
$432 to $140, they are not directly aimed at the purchase of
votes. They are instead, designed to focus the employees’ at-
tention on the issues which a representation election participant
usually debates.
Accordingly, I find this raffle to be protected by Section
8(c), the free speech section of the Act. This objection will be
overruled.
Objections 10, 11, 12, and 21. These objections all relate to
conduct occurring during the period the polls were open on
January 8, 1998. They tend to run together and the witnesses
are generally the same. Objection 10 asserts that the Employer
serveilled or gave the impression of surveilling voters as they
voted or as they waited in line or walked to the polls. Objec-
tion 11 asserts that the employer engaged in electioneering in
the polls and in the line of waiting voters immediately outside
the polling place. Objection 12 alleges that the Employer di-
rected employees to vote even if they may not have wished to
do so or barred some employees from voting. Objection 21,
connected to Objection 12, contends that that the Employer
coordinated the release of employees to vote contrary to an
agreed-upon plan of release and that the breach of the agree-
ment interfered with the laboratory conditions required by the
Board.
Pursuant to the Stipulated Election Agreement, election was
held between the hours of 2 and 6 p.m. on January 8, 1998.
About half an hour before the election was to begin Board
Agent Rudy Hurtado conducted a preelection conference. Al-
though the Petitioner-Union asserts in its objections of that an
agreement was reached relating to the release of employees
from their tasks to go to the polls, the evidence does not so
show. Instead, according to the Union’s principal witness,67
Andrew Barnes, who served as a translator for some of the
Spanish-speaking people at the meeting, but who was not one
of the active participants, the only thing he could really recall
was that the observers were to release the employees in groups

9. Q. A union can strike an employer to force him to pay
more. A. True, but when a strike happens, those who take part in
it may be permanently replaced—no matter how long they may
have worked for the employer.
10. Q. If a person breaks any of the union’s rules or refuses
to pay any of their fines, assessments or dues, they can be fined or
even fired. A. True, and the best way to avoid the possibility of
such terrible things from ever happening is to keep the union out
of this company.
67 The principals for the Union at that meeting were Attorney Robert
Gibbs and John August, the International Union’s coordinator of or-
ganization. Although August served as a witness for the General Coun-
sel regarding the August 12 demonstration, he was not asked regarding
whether or not any prerelease agreement was reached on January 8,
1998.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1274
and that the supervisors would not be involved in the release
process. He recalled that “large groups” were not to go all at
once. Rather obviously, this meant that Respondent was in-
tending to continue to run its fruit processing activities as best
could while employees were engaged in the voting process.
Because the election period was deliberately timed to over-
lap the shift change, and because of the length of the polling
period, each party chose two employees as their election ob-
servers. The Union chose Maria Gonzalez and Ruth Anton.
The employer chose Francisco Juarez and Sandra Ayala.68
Gonzalez and Anton were employed on the night shift, while
Juarez and Ayala worked the day shift. Gonzalez and Ayala
were designated to be one pair while Juarez and Anton became
the other. When one pair was out releasing workers, the other
remained at the polling place with the Board agent to assist him
in checking off the names of voters as they presented them-
selves. It was also their duty to challenge any person who ap-
peared to vote whose name was not on the list of voters. The
Maria Gonzales/Sandra Ayala pair did the initial release of
voters. They switched duties with the Francisco Juarez/Ruth
Anton pair at 3:30 p.m., about halfway through the election
period.
One of the instructions, which the Board agent gave to the
observers, limited what they could say to employees as they
were being released. Essentially he told the observers to tell
the employees that if they were ready to vote, then it was time
for them to go and vote and that they should follow the two
observers to the polling place. They were to say nothing more
and were asked to make no gestures as well. For a portion of
that time, Gonzalez carried a handwritten cardboard sign with a
similar message, per the Board agent’s instructions.
The polling place itself was the lunchroom in the center of
the main warehouse building. It has a self-closing door that
opens to the aisleway between the lunchroom wall and the bag-
ging area. When the Board agent placed heavy paper over the
door window, the room became entirely private. No one could
see inside the lunchroom unless they opened the door.
Before the election began, the managers and supervisors
wore their procompany T-shirts. However, when the election
approached, all of them, including Tommy Hanses, either re-
moved the shirts or covered them with an outer garment. Ex-
cept for Bagging Supervisor Martin Zepeda, there were no
supervisors anywhere near the lunchroom during the election.
Zepeda’s normal duties required him to be in his area, which as
noted, is located across the aisleway from the lunchroom door.
However, no evidence has been offered that any manager or
supervisor, including Zepeda, spoke to any employee as they
approached the lunchroom to vote. Indeed, there is no evidence
that anyone whatsoever spoke to employees as they approached
the polling place with the observers or once they were inside
the lunchroom. Accordingly, there is no proof that any elec-

68 She stated her name as “Sandra Aiala-Reies,” spelling it as shown
here. I initially thought her to say “Ayala-Reyes,” but she corrected
me. However, company records, including the Excelsior list, show her
as “Sandra Ayala.” The parties have accepted that spelling and I shall
follow that convention here.
tioneering occurring during the polling period. In the absence
of any evidence supporting Objection 11, it must be overruled.
Zepeda is, however, the focus of Objection 10, alleging that
the Employer either surveilled or created the impression of
surveillance of employees during the polling.
According to observer Maria Gonzalez, on numerous occa-
sions during the election, estimated between 8 to 10 times, she
observed Zepeda at the drinking fountain not far from the
lunchroom door. She testified that the fountain is only 5 or 6
feet from the door. She is not corroborated by her partner
Ayala. Ayala says that she did not observe any supervisor by
the fountain. Moreover, she says the fountain is some 10 to 15
meters (some 30 to 45 feet) from the lunchroom door, next to
the restrooms. At that time it was the only fountain in the
building.
The Union observes that Zepeda did not testify and argues
that because he did not deny or explain what he was doing,
Gonzalez’ version should be credited. Of course, it does not
take into account Ayala’s testimony. I recognize that there is
some difference between Gonzalez and Ayala regarding the
distance between the door and water fountain, but on balance I
am not persuaded that Zepeda was doing anything improper.
First, it seems unlikely, absent some special need, that anyone
would visit the water fountain as frequently as described by
Gonzalez. Yet Gonzalez did not seem to be one who would
exaggerate. Still, I note Ayala’s failure to observe such an
oddity. Surely Gonzalez would have said something to Ayala
upon the fourth or fifth observation. Apparently she did not.
Accordingly, if she observed Zepeda at the water fountain, I
believe it was only once or twice, not the 8 to 10 times she
says. I also note that there is no evidence that Zepeda had any
papers with him to suggest that he was recording what he saw
or that the employees on their way to the polls even noticed
him. His behavior seems to have been entirely unremarkable.
In that circumstance, I cannot conclude that Zepeda was do-
ing anything out of the ordinary. He worked in that general
area, the water fountain was handy, was next to the restroom
and he was in a location where one would expect to see nearly
everyone on the floor at one time or another.
I am therefore unable to find any facts warranting sustaining
this objection. Accordingly, I shall recommend that Objection
10 be overruled.
Insofar as Objections 12 and 21 are concerned, the Union
points to three situations that are said to support the conten-
tions. One involved Mel Sager at the packing lines, another
involved Rumsey Abdulla, the shipping department foreman
who was at the cold room and the third seems to have involved
Allan Munn, the shipping foreman at the bin lot, although the
witnesses did not know his name.
Although, as I have found, no specific release agreement had
been reached, there was a general consensus regarding how
employees should be notified that it was their turn to go to the
polls. One of those factors was for the observers to begin at the
beginning of the processing operation and follow it to the end.
However, Gonzalez and Ayala seemed not to understand this
preference, at least as they started out. They began with the
pear packers and then proceeded to the apple sorting lines.
While the initial choice of the pear packers was appropriate, it
WASHINGTON FRUIT & PRODUCE CO. 1275
was there that the observers could not make themselves under-
stood and very few employees followed them. As a result the
Board agent asked Gonzalez to hold up the cardboard sign and
to speak as best they could to the employees thereafter.
However, the apple line employees were chosen somewhat
out of the expected order. That line usually begins with the
dumper, with the bag line being a last station. When they ar-
rived at the bag line, according to Sager, too many people left
at once causing a department wide problem. As a result he
spoke to them an asked that they take one line at a time, allow-
ing for orderly shutdown and resumption. They agreed to fol-
low that procedure and, before telling the employees on a spe-
cific line that it was their turn to vote, would advise Sager
which line they were about to release. Gonzalez says that
Sager told them which of the employees to release.
I think part of the problem here was the Board agent’s limita-
tion on the words which the observers were permitted to use.
While they may have been able to use common sense in releas-
ing the employees line by line, they had been told they could
say nothing other than “it is your turn to vote.” Because they
said nothing else, too many people at a time left, leaving sta-
tions unmanned but with the lines continuing to run. It was for
that reason that Sager interceded. In fact, according to Ayala,
Sager “asked if it was okay” to proceed by having a whole line
stop and that both she and Gonzalez concurred. Once the ob-
servers agreed to a line-by-line stoppage, the problem was re-
solved. There is no evidence that Sager spoke to any voter or
released any voter himself. In fact, Gonzalez’ testimony that he
selected some specific employees would appear to be a mis-
statement. What Sager was no doubt doing was trying to
minimize the confusion. If he referred to anyone by name, it
was to choose individuals from a specific line, so that other
lines could continue to run, while still permitting the observers
to perform their assigned function. Had he not stepped in, there
was the distinct possibility all the bag employees would have
left at once or that the departures would be so uncontrolled that
operating lines would have been undermanned risking spillage
and/or inability to maintain bag-size integrity. There is no evi-
dence that he interfered with anyone’s right to vote. Indeed,
neither Gonzalez nor Ayala think they missed anyone in the
bagging area.
Later, when Gonzalez and Ayala arrived at the shipping de-
partment, located in a building across the street, the second
situation arose. Gonzalez says that Ayala asked her to wait a
moment while she went upstairs to speak to Abdulla in the
office. A moment later, she says, Abdulla came down and told
the employees to vote. He called people off the forklift and
from the cold room and then led them outside so they could
walk to the warehouse to vote. Ayala’s version is somewhat
different. She observes that the entrance to the shipping de-
partment is somewhat dangerous, with fast-moving forklifts
exiting the main door which is covered with hanging plastics
strips that inhibit visibility. She wanted to make certain the
forklifts would be stopped for safety reasons when the employ-
ees walked through that doorway. She testified:
Q. (BY MR. CROLEY) And what was the reason for ini-
tiating contact with Mr. Abdulla?
A. Because there was up above a person that was to
vote also, and I know that the forklifts, they run fast
around there. I—before going up there, I told [asked]
Maria if it was okay if we told Rumsey so that he could
look or watch so that we would not have any problem with
the forklifts. I only went up above and I said, “Rumsey, I
need your people.”
Then we came down, and he came down with us, and
we told the three people that were there. And there’s a
large door. And Rumsey walked up and said not to go by
there, because we went through there. Then we went
through there and inside we told the other two people that
were inside the cold room. Then we left.
Thus, there is a testimonial variance between Gonzalez and
Ayala regarding the role Abdulla played in releasing these em-
ployees. However, I’m of the view that the variance is essen-
tially meaningless. Rather clearly, when Abdulla came down
from his office, he immediately got on a forklift, exiting
through the door in question and appears to have protected it
while the employees departed with the observers. He does
appear to have said something to the effect of “Okay, guys” but
that remark is too vague to be of significance. He may simply
have been saying to the observers that the course was safe.
Whatever else might be set of this situation, it is clear that Ab-
dulla did not walk around the department telling employees that
they could leave to vote. That was left to the observers.
The third situation occurred at the bin lot, also located some
distance from the main warehouse. When Gonzalez and Ayala
arrived at the bin lot, there is again some testimonial variance.
Gonzalez says that when they arrived, employees, perhaps six
or seven, said they were on their break. She says that he ob-
servers asked them if they were ready to vote, but they replied
they were not because they were on their break. She says
Ayala asked for a supervisor, went and found one, and that he
returned and ordered them to go vote. Ayala says that about the
same time the employees declined to leave because they were
on their break, a man drove up on a forklift and the observers
told him that it was time to vote. At that point the man said
something in English which neither Ayala nor Gonzalez could
understand. At that point the two observers decided to move
on, but two or three of bin lot employees followed them and
another went his car and drove to the warehouse.
Both Gonzalez and Ayala believe that the individual who
spoke to the employees was the foreman, but they do not know
his name. The foreman for that area was Allan Munn. He did
not testify.
Again, I do not find testimonial difference to be significant.
I do not think that Gonzalez is entirely correct when she says
that Ayala left to find a supervisor. No doubt the foreman was
nearby. When Ayala announced to him, perhaps be leaving
him to be an employee, that it was time to vote, he undoubtedly
knew that the employees were taking a break. For him to make
some not understood comment to them, is not proof that he was
releasing them himself. He might have been releasing them,
but he might equally have been admonishing them about put-
ting their break ahead of their right to vote. Clearly he did not
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1276
tell them to vote, because not all of them followed the observ-
ers. Some chose not to go.
I conclude that the Union has failed to prove its Objections
12 and 21. Accordingly, they are overruled.
Objection 23. This objection asserts that the Employer failed
to provide correct addresses for the employees whose names
appeared on the Excelsior list.69 It also alleges that the em-
ployer failed to include the names of all the eligible voters on
the list. With respect to the latter issue, the Charging Party
appears to have abandoned that concern. No evidence was
offered and no argument has been made in support of that con-
tention.
However, evidence was adduced to demonstrate that 28.4
percent of the addresses on the list were incorrect. Further-
more, the parties inquired into correspondence between the
Union’s attorney, the Board’s Regional Office, and Respon-
dent’s attorney. They introduced by stipulation Charging
Party’s Exhibit 2, extracts from the Regional Office’s represen-
tation case file in Case 19–RC–13536. The first is a December
2, 1997 cover letter from Respondent’s attorney, Daniel Croley,
to the Regional Director transmitting the Excelsior list. It was
followed by facsimile from the Union’s attorney, Robert Gibbs,
dated December 16, 1997. In that transmission, Gibbs submit-
ted material supporting a protest that the Excelsior list was
defective in several ways, including a contention that it listed
individuals who were unknown and advising that when the
Union visited the addresses for those individuals, no one by that
name could be found.
In response, the election specialist assigned to the case,
Charlene Egbert, faxed Croley a request to deal with the prob-
lems, noting that the addresses for 12-named persons seemed to
be incorrect.
On December 18, Gibbs faxed Harold Weier, a Regional Of-
fice supervisor in charge of representation cases, advising that
87 of the 306 addresses (28.43 percent) on the Excelsior list
were incorrect. He also said the Union, by its own efforts, had
found addresses for all but 28 and that 2 of the 28 were indi-
viduals whose employment status was not known. Gibbs sub-
mitted a photocopy of the list, supplemented by handwritten
notations regarding individuals whose addresses were defec-
tive. The evidence shows that this information was entered by
one of the Union’s principal organizers, Andrew Barnes.
Also in the file is a telephone message slip in which Egbert,
responding to Croley’s initial call of December 19, notes that
Croley “will verify who has quit and who hasn’t and [get] the
new addresses if the union will verify that everyone else on the
list is eligible.”70 Another entry on the slip asserts that one of
the disputed individuals is not a supervisor. It seems likely

69 Excelsior Underwear, Inc., 156 NLRB 1236 (1966). That deci-
sion requires that within 7 days [after approval of an election agreement
or direction of an election], an employer must file with the Regional
Director an election eligibility list, containing the names and addresses
of all the eligible voters. The Regional Director, in turn, shall make
this information available to all parties in the case. Failure to comply
with this requirement shall be grounds for setting aside the election
whenever proper objections are filed. [156 NLRB at 1240.]
70 When Croley testified, he did not deny the remark.
here that Croley and Egbert were speaking only of issues raised
by her December 16 facsimile to him.
Despite that telephone call, which occurred on December 19
or shortly thereafter, there is no evidence that the substance of
Gibbs’ December 18 complaint regarding the 28-percent inac-
curacy rate was transmitted to Croley or acted upon by him.
Indeed, Croley did not respond to Egbert’s December 16
transmittal until January 5, 1998 (with a copy to Gibbs).
Respondent’s controller, Bryan Mains, and its payroll clerk
Patricia Thomas testified that Respondent attempts to maintain
the correct addresses for each of its employees and has a rule
that employees are supposed to notify the office of address
changes, but that the rule is often ignored. Because Respondent
does not utilize the employees’ addresses for any purpose, there
is no incentive for the employees to assist the Company in
keeping accurate records. Paychecks and annual W-2 forms are
hand delivered. The only persons to whom W-2 forms are
mailed are those who are no longer employed.
I conclude from that testimony that Respondent knew the
probability of incorrect addresses was extremely high. I also
observe that Croley, in dealing with the 12 bad addresses con-
tained in the December 16 facsimile, as well as the other issues
raised there, did not treat the matter with any sense of priority.
He explained that for the most part he was away from his office
for the Christmas season and somehow the need to deal with
the issues slipped past him. He seems to also have been hin-
dered by the time it took Respondent to obtain current ad-
dresses of the 12. Even so, it is not clear that he could have
been able to address Gibbs’ December 18 concern with the
28.4-percent inaccuracy rate—the Regional Office does not
appear to have advised him about it. At that point, 16 days had
passed from the due date of the list and a corrected list could
never have given the Union the benefit of having in its posses-
sion a proper list for the 5 weeks that the stipulated election
agreement contemplated.
Moreover, he treated the matter with some disdain. Why did
he tell the election specialist that he would get the addresses
only on the condition that the Union agree that all of the other
names on the list were eligible voters? The election specialist
is part of the Regional Office support (clerical) staff, not the
professional staff. Her authority is most circumscribed and she
would not be able to participate in the type of negotiation which
Croley proposed. Her duties are directed to the election me-
chanics, and not to anything substantive.71 So why approach
her? In any event, the substantive discussion was over, having
been finalized by the stipulated election agreement. Respon-
dent’s duty (and therefore Croley’s duty) was to comply with
that agreement to make the election process work—among
other things, to supply an Excelsior list which complied with
the Board’s requirements. It was certainly not to draw a subor-
dinate Board employee into some kind of needless dialog.
Under North Macon Health Care Facility, 315 NLRB 359,
360–361 (1994), the Board has held that the Excelsior rule is
not intended to test employer good faith or “level the playing
field” between petitioners and employers, but is to achieve

71 The professional staff member who processed the representation
case was Field Examiner Cathleen Shelton.
WASHINGTON FRUIT & PRODUCE CO. 1277
important statutory goals by ensuring that all employees may be
fully informed about the arguments concerning representation
and can freely and fully exercise their Section 7 rights. See
also Mod Interiors, Inc., 324 NLRB 164 (1997). Accordingly,
the Board requires that the information in the Excelsior list be
not only timely but complete and accurate so that the union
may have access to all eligible voters. The Board has recently
revisited this kind of issue in Woodman’s Food Market, 332
NLRB 503 (2000). It observed there that previous cases often
inquired regarding whether or not an employer’s errors could
be overlooked because despite them, the employer was “in
substantial compliance” with its requirements. In Woodman’s
the Board noted that the Excelsior requirements were not to be
mechanically applied, citing Telonic Instruments, 173 NLRB
588, 589 (1968). Nonetheless, the Board observed it had also
recognized that the potential harm from omissions is suffi-
ciently great to warrant an approach that encourages a consci-
entious effort by employers to comply with the Excelsior re-
quirements. Thrifty Auto Parts, 295 NLRB 1118 (1989). It
went on to say, “The Board has consistently viewed the omis-
sion of names from the eligibility list as a serious matter be-
cause a party that is unaware of an employee’s name suffers an
obvious and pronounced disadvantage in communicating with
that person by any means. Women in Crisis Counseling, 312
NLRB 589 (1993). See also Thrifty Auto Parts, supra. Thus, the
omission of names from the eligibility list clearly frustrates the
policies underlying the Excelsior rule since the union may be
denied the opportunity prior to the election to inform these
voters of its position on the issues raised before the election.”
It decided in Woodman’s that the previous rule concerning
percentages alone did not take into account other factors of
equal or greater importance. One of those factors was the
closeness of the election and whether the number of omissions
would be sufficient to affect the outcome of the election. It
decided to overrule those cases which relied solely on percent-
ages saying:
[T]the Board’s Excelsior policy was designed to enhance the
availability of information and arguments both for and against
union representation to employees so that they might render a
more informed judgment at the ballot box. Thus, the proper
focus in determining whether an employer has complied with
the requirements of the Excelsior rule should be on “the de-
gree of prejudice to these channels of communication, and not
the degree of employer fault.” Avon Products, 262 NLRB 46,
48 (1982). Obviously, the potentially prejudicial effect on the
election is most clear where the number of omissions may
have compromised the union’s ability to communicate with a
determinative number of voters. To ignore this circumstance,
therefore, is not only inconsistent with the rule’s purpose but
makes little sense. Accordingly, we overrule our prior cases
to the extent they have done so and hold that whether the
omissions involve a determinative number of names must be
considered in determining whether to set aside the election.
[Footnote omitted, supra at 504.]
Another factor to be considered is the Employer’s explana-
tion for its noncompliance. Of course, in circumstances where
the noncompliance is determined to be in bad faith, its explana-
tion will be rejected.
Here, unlike Woodman’s, supra, the case does not involve
the omission of the names themselves, but the inclusion of in-
correct addresses. Considering that the primary purpose of the
Excelsior rule is to make certain that all of the eligible employ-
ees are accessible to the Union in order to ensure that the statu-
tory goal of fully informing the employees about the arguments
concerning representation is fulfilled, it appears to me that that
goal has been frustrated by the lack of access. Obviously ad-
dresses are an important component of communication. Here,
over 28 percent of the employees’ addresses were wrong. It is
nearly self-evident that such a high level of inaccessibility
would have a negative impact on the ability of voting unit em-
ployees to obtain information to be fully informed about the
arguments in favor of representation. Indeed, the outcome of
the election may well have been affected. The Union lost the
election by 40 votes. Here, there were 87 incorrect addresses.
Obviously that number could have affected the outcome. How-
ever, the Union concedes that it had managed to get addresses
for 61 of those 87. Even so, it did not have that number for the
entire preelection period. But as the Board has said, in circum-
stances where the union was able to get information on its own,
“a union’s ability to communicate with employees by means
other than the eligibility list does not influence the determina-
tion of whether the employer has substantially complied with
its Excelsior duty. Thrifty Auto Parts, [supra].” Therefore, it is
inappropriate to concern myself with the possible success the
union may have had with those 61.
But, even if I held that the Union had properly reached those
61, that would still leave the remaining 26 for whom no ad-
dresses were ever found. Hypothetically, if 21 of those 26 had
voted for no representation, but with proper access would all
have voted for the Union, the tally would change to show that
142 votes would have been cast in favor of union representation
and 140 against. I recognize that the hypothetical is only barely
possible on a mathematical basis, but it proves the point that it
is critical for the Union to have face-to-face access. Obviously,
the election outcome may well have depended upon proper
addresses. Without it, face-to-face access to every member of
the voting unit was not possible. In point of fact, however, it is
clear that the Union did not have access to all 61 for the entire 5
weeks to conduct the campaign.
Finally, while I do not believe Croley’s approach to correct-
ing Excelsior list errors was in bad faith, I think it is fair to
conclude that he did not give the task the professional attention
that it deserved. He was not conscientious as impelled by
Thrifty Auto Parts, supra. He did not correct the first errors
which were brought to his attention until 3 days before the elec-
tion, even though he had been notified of them almost 3 weeks
earlier. He may well have been handicapped by the holiday
season or by the time the Company took to find out the new
addresses, but neither of these serves as a valid excuse.
The only proper approach here was to have ascertained the
correct addresses in the beginning. Respondent knew, and
Croley no doubt did too, that the database of addresses was not
up-to-date. Efforts should have been made to obtain the correct
addresses immediately upon the signing of the Stipulated Elec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1278
tion Agreement. He should have impressed upon Respondent
the need for accurate addresses. In fact, based upon his attempt
to distract election specialist Egbert around December 19, one
might easily conclude that he knew there was a problem. Why
else ask for an agreement which would put the error-filled list
beyond review?
Accordingly, I conclude that Objection 23 has merit. Re-
spondent should have provided an Excelsior list with correct
addresses. If there were nothing else in this case, the election
must be overturned on this basis alone and a new election or-
dered. Objection 23 is therefore sustained.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. In addition, Respondent having discrimina-
torily discharged Ana Guzman, it must offer her reinstatement
and make her whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Similarly, as Respondent discriminatorily
demoted Pamela Smith, it must make her whole for any loss of
earnings and other benefits, plus interest as computed in New
Horizons for the Retarded, supra. Furthermore, it shall be re-
quired to remove from the affected employees’ personnel files
any reference to their illegal treatment, whether discharge, de-
motion or lesser discipline. Sterling Sugars, 261 NLRB 472
(1982). Finally, it shall be directed to post a notice to employ-
ees advising them of their rights and describing the steps it will
take to remedy the unfair labor practices which have been
found.
A Bargaining Order is not Appropriate
As noted in the beginning of this decision, the General
Counsel and the Charging Party seek a remedial order requiring
Respondent to recognize and bargain with the Union because in
their view Respondent has committed such egregious unfair
labor practices that ordinary remedies would be insufficient to
allow for the conduct of a fair second election.
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the
Supreme Court set forth the rules under which bargaining or-
ders should be issued. It established three categories, or levels,
of unfair labor practices to consider in determining whether a
bargaining order is an appropriate remedy. The first category is
that of an employer having committed “outrageous” and “per-
vasive” unfair labor practices which have rendered the holding
of a new, untainted election impossible. The second category is
“marked by less pervasive practices which nonetheless still
have the tendency to undermine majority strength and impede
the election processes.” In that circumstance a bargaining order
could also be appropriate. The third category is where the un-
fair labor practices are so minor that “because of their minimal
impact on the election machinery, [they] will not sustain a bar-
gaining order.” Id. at 613–615.
The Board has declined to apply any mechanical or per se
rules in determining whether to issue a bargaining order. It has
recognized that fact patterns are so variable and infinite that
such an approach would not be realistic. Instead, each case
needs to be fully examined for the nature and extent of the mis-
conduct. There are however, some guidelines. Certain types of
unfair labor practices are said to be “hallmark,” and carry more
weight favoring the issuance of a bargaining order. Hallmark
violations generally are aimed at the loss of employment or at
unfair labor practices difficult to remedy, and which would
linger into a new election period. Discharges obviously fall in
the first group as do threats of discharge, plant closing, and
threats to close. The second group encompasses the grant of a
wide variety of benefits.72
At the very least, the General Counsel’s argument assumes
that all of the allegations in the complaint have been sustained.
Based on the foregoing, however, that is not the case. I have
rejected, on a failure of credible proof, all the allegations relat-
ing to the consultants, as well as a number of other 8(a)(1) ac-
cusations, some of which had no legal merit. The 8(a)(3) re-
fusal to rehire allegation also failed for lack of proof. I did
sustain the single unlawful discharge allegation and the unlaw-
ful demotion, also finding that Respondent misapplied its no-
solicitation rule and committed some garden variety 8(a)(1)
conduct. Moreover, while the 8(a)(3) discharge and demotion
are serious matters, I must note that they occurred in a voting
unit of 300 plus employees operating in two shifts and spread
around buildings which are found in portions of 4-city blocks.
Much of the 8(a)(1) conduct occurred well before the elec-
tion petition was filed on November 20. Moreover, it does not
qualify as a massive response to the employees’ organizing
activities. The first unfair labor practice was committed by
First-Line Supervisor Christina Bautista on July 1 during her
repartee with two cold room employees. No other unfair labor
practices were committed until a month later in August. Again,
it was Bautista on August 1 making remarks about what might
happen to employees who wore pro-union T-shirts. Both of
these may be characterized as conduct by first line supervisor
who either did not know better, or who held strong opinions of
her own which she could not control. (In fact, it was Bautista
who committed the only unfair labor practices which occurred
during the preelection critical period—compelling a few em-
ployees to wear procompany T-shirts.)
On August 6, Foreman Eric Hanses was the first mid-level
manager to take any steps which might be characterized as a
negative response. He reacted to Mata’s brazenness in parking
his car adorned with union placards in front of the headquarters
office. Later that night, he treated Guzman more harshly than
he treated Mendes when he issued her a stronger warning for
the identical offense in an apple spillage. Yet even this unfair
labor practice could not have undermined the election process
concerning an election which did not occur until 6 months later.
The next unfair labor practice was 5 weeks after that, on
September 10 (almost a month after the demand for recognition
demonstration), when Tommy Hanses, on Rick Plath’s instruc-

72 Examples of such cases are cited by Judge Cracraft in Yoshi’s
Japanese Restaurant, 330 NLRB 1339, 1346 fn. 20 (2000).
WASHINGTON FRUIT & PRODUCE CO. 1279
tions, misapplied the no-solicitation rule to Pam Smith. This
resulted in her demotion and the deprivation of her parts-runner
duties. It was this unfair labor practice which first involved
upper-level management. Even so, as hire and tenure violations
go, it was on the less weighty end of the scale. It is nonethe-
less, the first unfair labor practice which I have considered in
determining whether or not a bargaining order is appropriate.
The preceding violations are simply too remote from the elec-
tion and are not so pervasive as to impede it.
The next violation was a second misapplication of the no-
solicitation rule to three packers on October 23, followed on
November 12 by the unlawful discharge of Guzman. The last
violation was the aforementioned incident in which Bautista in
late December ordered two or three of her supervisees to wear
procompany T-Shirts.
All of these post-August 12 incidents can be remedied by
traditional means. In my opinion neither the facts nor Board
precedent warrants the issuance of a bargaining order to the fact
pattern described here. See Pyramid Management Group, 318
NLRB 607, 609 (1995). In some respects that case was more
likely to warrant a bargaining order than this one. Its 8(a)(1)
unfair labor practices were more numerous and severe, includ-
ing creating the impression that union representation would be
futile and threatening not to bargain with the Union if it won
the election. In addition, the respondent there, in a much
smaller voting unit (69) suspended 2 employees and discharged
2 others in violation Section 8(a)(3). Despite that the Board
declined to issue a bargaining order as part of the remedy. It
observed that none of the 8(a)(1) violations were “hallmark”
and that the 8(a)(3) violations did not directly affect a signifi-
cant portion of the 69-member voting unit nor were they com-
bined with widespread hallmark violations.
Similarly, none of the 8(a)(1) violations here is of the “hall-
mark” variety. And the demotion of Smith and the discharge of
Guzman, while coercive and “hallmark” do not directly affect a
significant portion of this 300-plus member voting unit. They
can certainly be remedied by the time a new election is con-
ducted. See also Yoshi’s Japanese Restaurant, supra; Phillips
Industries, 295 NLRB 717 (1989).
Majority Status
It is true, that the General Counsel has demonstrated that the
Union has submitted proof, through signatures on representa-
tion petitions, demonstrating that it had obtained majority
status, appearing to maintain that standing until the election.
Such status is required as a condition of a bargaining order.
Gourmet Foods, 270 NLRB 578 (1984). The vast majority of
the signatures, however, were solicited between March and
May, 7 to 9 months before the election. Indeed, the General
Counsel relies on only 13 signatures which were obtained after
May. Eight employees signed during August and September
and one signed in October. Rather clearly, a large number were
obtained before the debate began in earnest in August. One
may properly ask whether the election outcome might have
been different had the Union filed its petition in May or June
instead of waiting until late November as it steadfastly followed
its policy of seeking voluntary recognition. Even though there
were a few pre-August 12 unfair labor practices which might
have had an impact, did that delay contribute to the cooling of
the employees’ ardor?
Because the Union demanded recognition on August 12, and
because the unfair labor practices which preceded that date
were committed only by First-Line Supervisor Christina
Bautista and Night-Shift Foreman Eric Hanses, and not by any
higher-level managers, August 12 would be the appropriate
date to determine majority status, were a bargaining order nec-
essary. Because a bargaining order will not be recommended, I
shall not deal with the majority issue in great detail.
Nevertheless, payroll records show that on August 12, Re-
spondent had 307 employees in the voting unit. At that time it
had acquired the signatures of 179 of those employees. In de-
termining that number, I authenticated the signatures of all but
24. I determined that those 24 should be litigated. Even so,
assuming that none of those litigable signatures were valid, the
Union still enjoyed majority status, 155 signatures (half being
154). However, upon any reasonable view of the evidence,
none of those 24 could be rejected. There were four of those 24
who were called by Respondent and who testified that they did
not sign the petitions even though handwritten entries were
made in their names.73 For a variety of reasons I have rejected
their testimony as not credible. But, in the final analysis, a
decision not to count their signatures would not affect the Un-
ion’s majority.
Respondent also attacked the petitions themselves as being
ambiguous and misleading. While I have considered the argu-
ment, I must reject it on the merits. However, in view of my
conclusion that a bargaining order is unnecessary, I choose not
discuss the matter further. The same can be said for Respon-
dent’s efforts to demonstrate that the signatures were improp-
erly solicited. On the merits, it simply failed to show that any
signature solicitor made representations intended to cancel the
plain meaning of the language authorizing the Union to be the
employee’s collective bargaining representative. In the circum-
stances here, a lengthy discussion of the issue would serve no
purpose.
Accordingly, I conclude that on August 12 the Union did en-
joy majority status based upon the petition signatures.
Remedy Regarding Case 19–RC–13536
In view of the fact that unremedied unfair labor practices
were extant at the time the petition was filed and because an-
other unfair labor practice was also committed during the
preelection critical period, the Board should set aside the elec-
tion of January 8, 1998, and order a new election to be con-
ducted upon the completion of a remedial period during which
an appropriate notice to employees will be posted.
Based on the foregoing findings of fact, legal analyses, and
the record as a whole I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.

73 These were: Bertha Alvarez, Anjelica Juarez, Maria Valencia, and
Gloria Antuñez.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1280
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. On July 1, 1997, acting through Christina Bautista, Re-
spondent violated Section 8(a)(1) by telling employees they
could not engage in union activity on company property, by
threatening employees with loss of their jobs if they sought
union representation, and by interrogating employees about
their union sympathies.
4. On August 1, 1997, acting through Bautista, Respondent
violated Section 8(a)(1) by interfering with employees’ free
exercise of their Section 7 rights when she told employees that
those who wore apparel with a prounion message were “cutting
their own throats” or were “putting their own heads in a noose.”
5. On August 6, 1997, acting through Eric Hanses, Respon-
dent violated Section 8(a)(3) and (1) when it issued employee
Indalecio Mata because he parked a car with union placards in
front of the headquarters building.
6. On August 6, 1997, acting through Eric Hanses, Respon-
dent violated Section 8(a)(3) and (1) when it issued employee
an enhanced a warning to its employee Ana Guzman because of
her union activity.
7. On September 10, 1997, acting through Tommy Hanses,
Respondent violated Section 8(a)(3) and (1) when it issued
employee Pamela Smith a warning and demoted her because
she was talking about the Union while at work.
8. On November 12, 1997, Respondent discharged its em-
ployee Ana Guzman because of her union activity.
9. In late December 1997, acting through Bautista, Respon-
dent violated Section 8(a)(1) by interfering with employees’
free exercise of their Section 7 rights when she ordered em-
ployees to wear apparel with a procompany message.
10. The General Counsel has not proven any other allegation
in the complaint.
[Recommended Order omitted from publication.]