Labriola Baking Company

National Labor Relations Board - Board Decisions

Sep 8, 2014

361 N.L.R.B. 412 (N.L.R.B. 2014)

412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Labriola Baking Company and Juventino Silva, Peti-
tioner and Teamsters Local 734. Case 13–RD–
089891
September 8, 2014
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
HIROZAWA, JOHNSON, AND SCHIFFER
The National Labor Relations Board has considered
objections to an election held March 14, 2013, and the
hearing officer’s report recommending disposition of
them. The election was conducted pursuant to a Stipu-
lated Election Agreement. The tally of ballots shows 16
for and 20 against the Union, with 4 challenged ballots,
an insufficient number to affect the results. The Board
has reviewed the record in light of the exceptions and
briefs, and has decided to sustain the Union’s exception
and order a new election.
I.
On September 21, 2011, Teamsters Local 734 was cer-
tified as the bargaining representative for a unit of full-
time and part-time sales drivers at Labriola Baking, a
bakery and delivery company operating in the Chicago,
Illinois area. A year later, the parties not yet having
agreed to a first contract, an employee filed a petition to
decertify the Union.
One week before the election, the Employer held a
mandatory meeting for the drivers; roughly 25 of the 40
unit employees were present. At the meeting, Vice Pres-
ident and Chief Operating Officer Robert Burch spoke to
employees about the upcoming election. Approximately
80 percent of the unit employees were Spanish-speaking,
so the Employer had Payroll Administrator Manual Ro-
jas translate Burch’s remarks. Following a script, Burch
said: “If you chose Union Representation, we believe the
Union will push you toward a strike. Should this occurs
[sic], we will exercise our legal right to hire replacement
workers for the drivers who strike.” Unit employees,
however, testified and the hearing officer found that Ro-
jas’ translation ended with the statement that the Em-
ployer would replace the workers with “legal workers” or
a “legal workforce.” There is no evidence that the Em-
ployer made any attempt to correct or clarify Rojas’
translation, either at the meeting or afterward.
One week later, the employees voted to decertify the
Union with 20 votes against representation, 16 votes for
representation, and 4 uncounted challenged ballots.1 The
1 For purposes of this case, we treat the election as a tie because,
when considering election objections, the Board assumes that uno-
Union timely filed objections, including, as Objection 1,
its claim that Rojas’ translation was a threat to report
employees to immigration authorities.
The full text of Objection 1 states:

On or about May 7, 2013, at a meeting attended by
about twenty-five (25) employees, COO Burch, and
Rich Labriola, Mr. Burch told employees that if they
supported Local 734 in the March 14 election, Local
734 would cause the employees to engage in a strike,
and the Employer would take action to hire a legal
workforce. The statement constituted a threat to report
employees to immigration authorities if they exercised
their Section 7 rights to support 734 and/or engage in a
strike.
II.
The hearing officer concluded that the words spoken
by Rojas were not objectionable because they did not
expressly or impliedly threaten that the Employer would
report employees to immigration authorities if they sup-
ported the Union. We find that the hearing officer failed
to recognize the threat of adverse consequences these
words conveyed to non-English-speaking employees,
regardless of their immigration status.2
A.
The hearing officer analyzed Objection 1 only in terms
of whether the Employer threatened to report employees
to immigration authorities. That is an unduly restrictive
reading of the Union’s objection. To be sure, the objec-
tion refers to reporting employees to immigration author-
ities, but it specifically sets forth Rojas’ statement that
the Employer would take “action” to hire a “legal work-
force.” In these circumstances, we are not precluded
from considering whether the statement amounted to a
more generalized threat. And, in any event, the Board
may consider conduct that does not “exactly coincide
with the precise wording of the objections” where, as
here, that conduct is “sufficiently related” to the filed
objections. Fiber Industries, 267 NLRB 840, 840 fn. 2
(1983). Thus, the question whether Rojas’ translation
conveyed to employees that the Employer would take
some kind of action against them based on their legal
status is appropriately before us.
pened, uncounted ballots were cast in favor of the objecting party.
Harborside Healthcare, Inc., 343 NLRB 906, 913 fn. 23 (2004).
2 The Union also excepted to the hearing officer’s finding that the
Employer did not engage in objectionable conduct by conveying the
impression that bargaining was futile. We find no merit in this excep-
tion for the reasons stated by the hearing officer.
361 NLRB No. 41

LABRIOLA BAKING CO. 413
B.
Before turning to Rojas’ translation itself, we observe
that there can be no dispute that the Employer is respon-
sible for his translation of Burch’s prepared remarks,
having designated Rojas to perform that service. See
API Industries, 314 NLRB 706, 706 fn. 1 (1994). The
record, moreover, fully supports a finding that Rojas’
statement warned that the Union would call a strike and
that the Employer would respond by hiring “legal work-
ers.”3 This is the credited testimony establishing what
employees were told, as opposed to the account cited by
our dissenting colleagues, in which the Employer simply
states its legal right to hire replacement workers in the
event of a strike and innocuously announces its intention
to comply with the law. The credited evidence hardly
constitutes a “mere mention of [the] legal requirements.”
With these points established, we turn to the substance of
Rojas’ statement.
Although it does not appear that the Board has previ-
ously considered the likely impact of the phrase “legal
workers” on employees, our cases and the policies under-
lying them warrant a finding that Rojas’ statement was
objectionable. The Board has recognized that employer
threats touching on employees’ immigration status war-
rant careful scrutiny, as they are among the most likely to
instill fear among employees.4 In Viracon, Inc., 256
NLRB 245, 246–247 (1981), for example, the Board
issued a Gissel bargaining order based in part on the em-
ployer’s threats that, if the union were certified, the em-
ployer would report employees to immigration authori-
3 As an example, see the following exchange between the Employ-
er’s counsel and employee Flores:
Q. BY MR. WIT: So, Mr. Flores, I want to ask you about what
you say Mr. Burch said at the March 7th meeting. Because the
first time you described [it], you said he said they would hire legal
workers, the second time you described it you said he would con-
tract legal labor workers. What specifically was it that Mr. Burch
say?
A. I don’t know if I said it bad. Like he’s like you were say-
ing, if we’re going to strike, there will be a strike, we’re going to
hire legal workers.
Q. Isn’t it that Mr. Burch said we have a legal right to hire re-
placement workers?
A. No, he didn’t say that.
Q. He didn’t say that?
A. No.
4 In analyzing such statements, Board and court precedent instructs
us to be mindful of the economic dependency of employees on their
employer “and the necessary tendency of the former, because of that
relationship, to pick up intended implications of the latter that might be
more readily dismissed by a more disinterested ear.” NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1969); see, e.g., Yuma Coca-Cola
Bottling Co., 339 NLRB 67, 68–69 (2003) (relying on Gissel to set
aside election based on the employer’s postpetition statements that
reinforced earlier, prepetition threat to eliminate benefits if employees
selected union representation).
ties and the union would not allow employees without
documentation to work in the plant. The Board ob-
served:

[These] threats would undoubtedly evoke the most in-
tense fear, not only of employment loss, but of removal
from their very homes as well.
* * *
Moreover, these threats—regardless of their applicabil-
ity to any employee—signaled Respondent’s displeas-
ure at union activity and the lengths to which it would
go to impose retributions should employees thwart its
will.

Id. at 247.
Similarly, the statement here—“we will replace you
with legal workers”—was part of a threat to retaliate
against employees for maintaining union representation;
it was what the employer stated it intended to do when
the Union “push[ed]” workers to strike.5 The dissent’s
entire rationale rests on the assertion that the statement
was not a threat. But, as our dissenting colleagues
acknowledge, it is both objectionable and (where al-
leged) unlawful for an employer to threaten immigration-
related problems for employees because they engage in
union or other protected, concerted activity. In our view,
that is what the Employer did in this case. By telling non-
English-speaking employees that it would replace them
with “legal” workers, the Employer communicated that
their immigration status would be subjected to scrutiny.6
5 Our dissenting colleagues place too much weight on the hearing of-
ficer’s finding that Rojas’ translation of Burch’s remarks conveyed the
actions the Employer would take “in the event of a strike.” It is clear to
us that the hearing officer’s characterization of the translated statements
was contextual only and not intended to be a determination of whether
the statements were either a prediction or a threat. Indeed, it appears
that the hearing officer did not fully entertain this important distinction.
In any event, we find that the translated statement, as presented to
employees, plainly was a prediction and threat. As explained, Burch’s
script stated: “[W]e believe the Union will push you toward a strike.”
Burch testified that he read the script in its entirety. The next sentence
in the script, as translated, threatened to replace the employees with
legal workers in response to the Union pushing employees to strike.
Thus, Burch’s statement, as conveyed to employees, is properly viewed
as a prediction and threat. See e.g., L.S.F. Transportation, Inc., 330
NLRB 1054, 1066 (2000), enfd. 282 F.2d 972 (7th Cir. 2002) (Employ-
er unlawfully threatened employees by stating they “could go ahead
and bring the Union in, but when we went on strike that he would bring
in temporary or replacement workers to replace us.”)
6 We would reach the same result even if the threat were veiled or
ambiguous. The Board has been clear that it will construe any ambi-
guity in a threatening statement against the employer making the state-
ment. See Unifirst Corp., 335 NLRB 706, 707 (2001) (“[w]here, how-
ever, ambiguous comments about striker replacement are part and
parcel of a threat of retaliation for choosing union representation, as
they were here, any ambiguity should be resolved against the employ-
er”); see also Sears Roebuck de Puerto Rico, 284 NLRB 258, 270 fn.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414
Contrary to the suggestion of our dissenting col-
leagues, no one disputes that employers have certain ob-
ligations to ascertain the legal status of their employees
and ensure compliance with the law. But the counter-
vailing principle is equally true: it is objectionable to
threaten employees that engaging in protected activity
will lead to scrutiny of their immigration status. Sure-
Tan, Inc. v. NLRB, 467 U.S. 883, 895–896 (1984) (even
if an employer otherwise may lawfully report the pres-
ence of an undocumented worker, the employer violates
the Act “when the evidence establishes that the reporting
of the presence of an illegal alien employee is in retalia-
tion for the employee’s protected union activity”); Nor-
tech Waste, 336 NLRB 554, 554–555 (2001) (rejecting
the employer’s assertion that it reviewed its employees’
immigration status merely to ensure its compliance with
Federal immigration laws, finding instead that the em-
ployer used that review “as a smokescreen to retaliate for
and to undermine the [u]nion’s election victory”).
Furthermore, in determining whether an employer’s
statement was objectionable, we examine it from the
perspective of a reasonable employee. See, e.g., Lancas-
ter Care Center, L.L.C., 338 NLRB 671, 672 (2002).
The test is not what the speaker may have meant to say,
but whether his actual words would tend to interfere with
employee free choice. Id.
Applying these principles to the facts of this case, we
have little difficulty in discerning the threatening nature
of Rojas’ references to “legal workers” or a “legal work-
force.” First, by asserting that the Union would “push”
the employees to strike and thus jeopardize their em-
ployment, the Respondent was skirting the limits of law-
ful persuasion. See Unifirst Corp., above, 335 NLRB at
707; L.S.F. Transportation, Inc., above, 330 NLRB at
1066. In that context, the import of Rojas’ references to
“legal workers” was that the Employer would use immi-
gration, i.e., “legal,” status, to take action against the
employees in the event of the all but inevitable strike that
the Employer claimed the Union would cause.7 From the
17 (1987) (setting aside election based on employer agent’s suggestion
that the employer would close the facility if employees voted for union
representation; “assuming, arguendo, that there is some ambiguity
lurking in the statement, the Employer is liable for the double entendre
. . . .”).
7 It is irrelevant to our analysis whether any of the employees in fact
were themselves undocumented or had immigration-related problems.
As one court of appeals has explained, even documented workers may
be intimidated by threatened scrutiny of their immigration status, for
they “may fear that their immigration status would be changed, or that
their status would reveal the immigration problems of their family or
friends; similarly, new legal residents or citizens may feel intimidated
by the prospect of having their immigration history examined in a pub-
lic proceeding.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1065 (9th Cir.
2004), cert. denied 544 U.S. 905 (2005).
employees’ standpoint, why else would the Employer
specify “legal” workers? Certainly, the employees can-
not be charged with piecing together that the Employer
meant (assuming it did) for Rojas to convey the finer
points of striker-replacement law. See Lancaster Care
Center, above, 338 NLRB at 672 (“reasonable employ-
ee” standard does not obligate the employee to “divine a
legitimate gloss to what was said”); Sears Roebuck de
Puerto Rico, above, 284 NLRB at 270 fn. 17 (holding
employer responsible for ambiguous statements to em-
ployees who “are neither law professors nor grammari-
ans”).
For those reasons, we find that the facts of this case
warrant finding that Rojas’ statements were objectiona-
ble. The Board will set aside an election if objectionable
conduct has the tendency to interfere with the employ-
ees’ freedom of choice. Taylor Wharton Division, 336
NLRB 157, 158 (2001). Here, the objectionable state-
ment was highly coercive and widely disseminated at a
captive audience meeting held shortly before a close
election. In those circumstances, we find that the threat
interfered with employees’ freedom of choice and that a
second election is necessary.
C.
Setting aside the election is also important to ensure
public confidence in the Board’s ability and willingness
to make the Act meaningful to all participants in the
work force, which has become increasingly diverse in
national origin and ethnicity. The Board must continue
to fine tune its institutional “ear” in order to protect vul-
nerable workers from immigration-related threats and
manipulation that violate the Act.
At the same time, we agree with our colleagues that
some imprecision inevitably arises when communicating
complex issues in multiple languages. This is particular-
ly true when communications are walking the fine line
between lawful descriptions and unlawful threats. We
disagree, though, that employers should be granted
greater latitude in addressing non-English-speaking
workers. Both the traditional principles for analyzing
threats and our obligation to be mindful of the status and
concerns of vulnerable workers inform our view that
these statements deserve careful scrutiny. Here, the mis-
translation of the statement that the Employer would hire
replacement workers when the Union “push[ed]” em-
ployees to strike signaled to a majority of the unit that

LABRIOLA BAKING CO. 415
employees’ immigration status and employment could be
jeopardized if they retained union representation. We
find that this statement is objectionable conduct warrant-
ing a new election.
[Direction of Second Election omitted from publica-
tion.]

MEMBERS MISCIMARRA and JOHNSON, concurring in part
and dissenting in part.
Our colleagues here find that an employer engages in
objectionable conduct by saying it will do something
“legal.” Specifically, the majority invalidates an election
solely because the Employer stated that, in the event of a
strike, it would exercise its “legal right to hire replace-
ment workers for those . . . who strike,” which a Spanish-
speaking translator described as hiring “legal workers” or
a “legal workforce” in the event of a strike. There is no
evidence that the Employer made any statement arguably
relating to the potential unlawful immigration status of
its employees, that the Employer had any knowledge that
any of its employees might have such unlawful status, or
that immigration-related issues were a particular concern
to this work force. However, our colleagues find this
language constituted an objectionable threat to “take
some kind of action” against employees based on their
immigration status. As to this issue, there are two salient
facts: (i) the employer’s use of the word “legal” as de-
scribed above, and (ii) participation by non-English-
speaking employees in the discussion.
We dissent from our colleagues’ finding for three rea-
sons. First, the allegation is contradicted by the record
and by hearing officer findings that our colleagues fail to
fully acknowledge. Second, the majority improperly
disregards well-established principles regarding burdens
of proof and related standards governing representation
proceedings. Third, the majority’s finding appears to
reflect an underlying, mistaken premise that it is objec-
tionable for employers to make even the slightest refer-
ence to the legal requirement of work authorization.
Here, the majority essentially maintains—para-
doxically—that an employer violates the law by stating it
will comply with the law.1
We do not discount the importance of Board and court
cases where—unlike the situation presented here—
1 Because the instant case involves the Board’s review of election
objections, the majority finds that the word “legal” constitutes objec-
tionable conduct (to a degree that warrants overturning the Board-
conducted election), and our colleagues do not specifically address
whether the conduct violates the Act. However, if the same facts arose
in a case involving alleged unfair labor practices, our colleagues’ anal-
ysis suggests they would find that similar conduct would constitute
unlawful restraint, coercion, or interference with protected rights in
violation of Sec. 8(a)(1) of the Act.
employers are found to have violated the Act based on
unlawful threats, which can include threats to cause im-
migration-related problems for employees.2 However,
nothing in the NLRA renders unlawful or objectionable
every mention of immigration-related work require-
ments. After all, employers and employees alike are
required to comply with these legal requirements. With-
out more than exists in this case, the mere mention of
such legal requirements (even if that occurred here,
which is far from clear) cannot be reasonably found ob-
jectionable or unlawful.3
Our colleagues have an admirable objective, and we
agree that the Act should be “meaningful to all partici-
pants in the workforce, which has become increasingly
diverse in national origin and ethnicity.” It is also true
that undocumented aliens who lack the work authoriza-
tion required under federal law face vulnerabilities re-
garding their legal status. But here, the majority allows
its well-intentioned general concerns to carry the day,
despite the shortcomings of the Union’s objection, by
overturning the outcome of a Board-conducted election
when there is virtually no evidence of immigration-
related concerns, apart from the mere use of the word
“legal” in the presence of non-English-speaking employ-
ees. In our view, this goes well beyond “fine-tun[ing]”
the Board’s “institutional ‘ear’ in order to protect vulner-
able workers from immigration-related threats and ma-
nipulation that violate the Act,” as our colleagues state.
Obviously, some imprecision arises when communi-
cating complex issues in multiple languages to a diverse
work force. Although our colleagues generally agree
with this observation, they nonetheless brush it aside in
favor of applying a rigid test of linguistic purity that the
Board itself failed: the Spanish-speaking interpreter at
the hearing before a Board hearing officer confused the
same concepts giving rise to the controversy in this
case.4
2 See, e.g., Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984); North Hills
Office Services, 346 NLRB 1099, 1102 (2006). Cf. Hoffman Plastic
Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
3 The Union filed exceptions to the hearing officer’s recommenda-
tions to overrule Objections 1 and 3. Although we dissent from our
colleagues’ finding that the hearing officer improperly overruled Objec-
tion 1 (dealing with the statement about “legal” replacement workers in
the event of a strike), we join our colleagues in affirming the hearing
officer’s recommendation to overrule Objection 3, which, as alleged by
the Union, involved conveying the impression that bargaining was
futile.
4 Our colleagues state that they disagree “that employers should be
granted greater latitude in addressing non-English speaking workers.”
We have not advocated any different standard that would apply when
employees have a primary language other than English. To the contra-
ry, our colleagues adopt a different rule pertaining to words and phrases
that, in the majority’s view, cannot lawfully be used around Spanish-
speaking employees.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416
Most of the facts are undisputed. The Employer oper-
ates a bakery and employs, among others, approximately
40 drivers, who participated in a Board-conducted decer-
tification election. The Union lost the election by a vote
of 20 to 16, with 4 nondeterminative challenged ballots.
During a meeting prior to the election, Employer Vice
President and Chief Operating Officer Robert Burch read
from a written script that stated in part: “If you chose
Union Representation we believe the Union will push
you towards a strike. Should this occurs [sic], we will
exercise our legal right to hire replacement workers for
those drivers who strike.” Because roughly 80 percent of
the drivers spoke Spanish, a Spanish-speaking payroll
administrator, Manuel Rojas, served as Burch’s transla-
tor.
After the election, the Union filed objections seeking
to invalidate the election results. Objection 1 related to
the manner in which the above statement was translated.
According to the objection, “Mr. Burch told employees
that if they supported Local 734 in the March 14 elec-
tion, Local 734 would cause the employees to engage in
a strike, and the Employer would take action to hire a
legal workforce” (emphasis added). The Union’s objec-
tion continues: “The statement constitutes a threat to
report employees to immigration authorities if they exer-
cised their Section 7 rights to support [the Union] and/or
engage in a strike” (emphasis added).
The hearing officer carefully analyzed the testimony of
multiple witnesses, who variously described how the
“legal right to hire replacement workers” phrase was
translated. Considering the evidence in the “best light”
for the Union, the hearing officer determined that the
translated statement was not objectionable. The hearing
officer stated: “Through Rojas, Burch indicated that the
Employer would hire ‘legal’ workers as replacements.”
The hearing officer reasoned that the translated remarks
“do not amount to a threat to report employees to immi-
gration authorities if they supported the Union or en-
gaged in a strike.” In agreement with the Employer, the
hearing officer indicated the remarks contained “no ex-
press or implied threat to report employees to immigra-
tion.”
The hearing officer stated it was plausible that Rojas
(the translator) “could have converted ‘legal right to hire
replacement workers’ to ‘legal workforce’ or ‘legal
workers’ during his contemporaneous translation of
Burch’s remarks.” Indeed, the hearing officer explained
that, at the hearing, “the Board interpreter also experi-
enced difficulty distinguishing the concepts during [the]
testimony.” Although the hearing officer concluded that
Rojas “referred to ‘legal workers’ or a ‘legal work-
force,’” she specifically found “this reference was made
in the context of what action the Employer would take in
the event that the Union went on strike” (emphasis add-
ed).5
The record contains not a shred of evidence suggesting
that any employees lacked work authorization, that they
feared being reported to immigration authorities, or that
some other type of immigration-related issues or prob-
lems existed in the workplace. The only potential basis
for inferring the existence of immigration-related fears—
an inference drawn by our colleagues—is the participa-
tion by Spanish-speaking employees in the meeting.
In these circumstances, we believe that neither facts
nor logic support a finding that the Employer engaged in
objectionable conduct by accurately describing what it
would do in the event of a strike—i.e., that it would ex-
ercise its “legal right to hire replacement workers,” trans-
lated as hiring a “legal workforce” or “legal workers.”
Indeed, given that the translation of the Employer’s re-
marks referred to who would be hired in the event of a
strike—i.e., “legal workers” or a “legal workforce” —we
do not understand how this could reasonably be inter-
preted as a threat to “report” current employees to any-
one.
Nonetheless, our colleagues find the Employer’s
statement objectionable based on their view of the “likely
impact” of the phrase “legal workers” on employees.
Here, the majority begins by substituting a different ob-
jection for the one the Union filed. The Union alleged
that the Employer threatened to “report employees to
immigration authorities . . . .” The majority, however,
expands and reinterprets this specific allegation into a
claim that the Employer threatened to “take some kind of
action against [employees] based on their legal status.”
As to this expanded version of the Union objection, our
colleagues then conclude it is reasonable for employees
to regard the phrase “legal workers” as meaning that “the
Employer would use immigration . . . to take action”
against them. Notwithstanding the hearing officer’s spe-
cific finding that the Employer’s remarks were “made in
the context of what action the Employer would take in
the event that the Union went on strike,” our colleagues
maintain that, from the standpoint of employees, the Em-
ployer would only logically use the phrase “legal work-
5 Our colleagues find that “Rojas’ statement warned that the Union
would call a strike and that the Employer would respond by hiring
‘legal workers’” (emphasis added), and they contrast their finding with
“the account” cited by us. However, we cite the “account” credited by
the hearing officer based on her careful assessment of the record “con-
sidering the evidence in the Union’s best light” (emphasis added). The
hearing officer found that Rojas spoke of action the Employer would
take “in the event of a strike.” We adopt the hearing officer’s factual
finding, which is contrary to the majority’s description of Rojas’ state-
ment.

LABRIOLA BAKING CO. 417
ers” to threaten employees with immigration-related ac-
tions.6 Again disregarding the hearing officer’s specific
finding about context (i.e., the fact that the Employer was
explaining who it would hire in the event of a strike), our
colleagues reason that “employees cannot be charged
with piecing together that the Employer meant . . . to
convey the finer points of striker-replacement law.” Yet,
our colleagues at the same time indicate that the Em-
ployer’s remarks improperly warned employees about
the “inevitabil[ity]” of a strike. Based on these and other
characterizations, the majority asserts that “our cases and
the policies underlying them” warrant a finding that it is
illegal to mention the hiring of “legal” replacement em-
ployees in the event of a strike. Apparently, this illegali-
ty arises if employers use one of two prohibited
phrases—“legal workers” or a “legal workforce” —when
non-English-speaking employees participate in the con-
versation.
With due respect to the contrary view of our col-
leagues, we believe three considerations compel a con-
clusion that the record does not reasonably support a
finding of objectionable conduct here, based on the mere
use of the phrase “legal workers” or “legal workforce.”
First, consistent with the hearing officer’s findings, our
view of this case is straightforward: (a) the Employer
described (in English) its “legal” right to hire replace-
ments in the event of a strike;7 (b) this was translated
(into Spanish) as the potential hiring of “legal workers”
or a “legal workforce” as striker replacements;8 and (c)
6 Our colleagues quote the “statement [at issue] here” as “we will re-
place you with legal workers.” The credited testimony does not contain
this quotation. As explained above, the hearing officer found that Ro-
jas converted “legal right to hire replacement workers” to “legal work-
force” or “legal workers” during his contemporaneous translation of
Burch’s remarks.
7 There is no dispute about the English version of what the Employer
stated. The Employer’s COO, Burch, read from a written “script” that
he had prepared in advance. That script stated that, in the event of a
strike, “we will exercise our legal right to hire replacement workers for
those drivers who strike.” Based on the uniform testimony of multiple
witnesses, with only a single exception, the hearing officer found that
Burch (and his translator, Rojas) “were reading except for times when
Burch was addressing employee questions.”
8 Our colleagues believe this statement was an unambiguous threat,
but add that they “would reach the same result even if the threat were
veiled or ambiguous” by construing the ambiguity against the Employ-
er. In our view, the statement was unambiguously not a threat. We do
not believe the terms “legal workers” and “legal workforce” can rea-
sonably be considered ambiguous in the circumstances presented here.
However, even if considered ambiguous, it is not appropriate to “con-
strue any ambiguity . . . against the Employer.” Unless there is a threat
of retaliation, the Board’s policy is to resolve “in the employer’s favor
any ambiguity occasioned by a failure to articulate employees’ contin-
ued employment rights when informing them about permanent re-
placement in the context of an economic strike.” Unifirst Corp., 335
NLRB 706, 707 (2001) (citing Eagle Comtronics, Inc., 263 NLRB 515,
516 (1982)). In our view, the record and the hearing officer’s findings
nothing in the record suggests that any unit employees
had immigration-related problems or concerns, threat-
ened or otherwise. We believe these conclusions are not
only straightforward, they are inescapable from the rec-
ord and findings by the hearing officer.9
Second, our colleagues’ finding of objectionable con-
duct runs counter to important, well-established princi-
ples regarding burdens of proof and other rules govern-
ing the Board’s adjudication of election objections. It is
worth noting that one of the Board’s primary functions is
to give effect to election results consistent with the em-
ployees’ right of “self-organization” and the Board’s
responsibility to safeguard the “fullest freedom” of em-
ployees in their exercise of protected rights.10 In our
view, the majority’s finding of objectionable conduct
does not give appropriate weight to the following princi-
ples: (i) Board elections are not lightly set aside, and the
party seeking to overturn the election—in this case the
Union—bears the burden of proving that objectionable
conduct interfered with the results of the election (Safe-
way, Inc., 338 NLRB 525 (2002)); (ii) the burden placed
on the party challenging election results is a “heavy”
burden (id.); (iii) an election will not be set aside unless
it is proven that objectionable conduct reasonably tended
to interfere with the employees’ free and uncoerced
choice (Quest International, 338 NLRB 856, 857 (2003);
Taylor Wharton Division, 336 NLRB 157, 158 (2001));
preclude a reasonable conclusion that the “legal workers” or “legal
workforce” remark was a threat of retaliation. Therefore, any ambigui-
ty would appropriately be resolved in the Employer’s favor. Id. This is
especially true given that the burden of proof rests upon the Union as
the party seeking to overturn the election results, and the facts that
multiple witnesses testified in varying ways regarding the comments,
and it was clear to all employees that Rojas was providing a simultane-
ous Spanish translation of Burch’s comments.
9 We do not believe it is proper to reinterpret and expand Objection
1, which, as submitted by the Union, alleged that the Employer threat-
ened to “report employees to immigration authorities” in retaliation for
protected activity. As noted above, our colleagues expand Objection 1
to allege a threat to “take some kind of action against [employees]
based on their legal status.” At no time did the Union seek to amend its
objection to include this broader allegation. Notwithstanding our col-
leagues’ suggestion to the contrary, it is well established that the Board
will not consider objections not previously raised unless there is a
showing that the different alleged misconduct was newly discovered
and previously unavailable to the objecting party. See, e.g., Tuf-Flex
Glass, 262 NLRB 445, 445 fn. 3 (1982), enfd. 715 F.2d 291 (7th Cir.
1983). In this regard, Fiber Industries, 267 NLRB 840, 840 fn. 2
(1983), relied upon by our colleagues, is readily distinguishable from
the present case. There, the petitioner raised new allegations that the
Board elected to consider even though they did not coincide precisely
with the wording of the objections. Id. In the present case, the Union
has not sought to amend its objection; rather, our colleagues have de-
cided to expand it at their own initiative. Even in its expanded form,
we believe there is no support for a finding of objectionable conduct
based on the record or any reasonable interpretation of the Act.
10 See Secs. 7 and 9(b).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 418
and (iv) the Board’s factual findings in representation
and unfair labor practice cases can be upheld on review
only if they are supported by “substantial evidence.”11
These principles do not consist of empty words; they
exist for important reasons, and the Board is required to
adhere to them when adjudicating representation cases.
We do not believe our colleagues’ finding of objectiona-
ble conduct—based on the mere utterance of the phrase
“legal workers” or “legal workforce,” which multiple
witnesses actually described different ways—can be
squared with our requirements that the Union bears a
heavy burden, which is to prove that objectionable con-
duct interfered with employee free choice, based on sub-
stantial evidence. As the hearing officer found, Rojas’
translation did not contain any reference to employees’
legal immigration status or to other immigration matters.
Nor is there any evidence that even remotely suggests
immigration concerns even existed among the unit em-
ployees, let alone had any bearing on employee support
for the Union. Finally, Rojas’s translation occurred
against a backdrop that was devoid of any objectionable
or unlawful conduct, let alone any objectionable or un-
lawful conduct related to employees’ immigration sta-
tus.12
Third, our colleagues’ finding of objectionable conduct
appears to suggest that employers violate the Act or en-
gage in objectionable conduct if they make the slightest
reference to the legal requirement of work authorization,
at least in the presence of non-English-speaking employ-
ees. We agree that it is highly objectionable and unlaw-
ful for an employer to threaten or cause immigration-
related problems for employees because they engage in
union or other protected concerted activity. But this is
not such a case. The decisions relied upon by the Un-
ion—all reasonably distinguished by the hearing of-
ficer—involved threatened retaliation that was directly
linked to the employees’ immigration status.13 Here, by
11 Sec. 10(e) (“The findings of the Board with respect to questions of
fact if supported by substantial evidence on the record considered as a
whole shall be conclusive.”).
12 Although the majority suggests that the Employer’s comments
constituted a warning to employees about the alleged “inevitab[ility]”
of a strike, there was no allegation or objection in this case based on a
claim that the Employer asserted strikes were inevitable or that the
Union would “‘push’ the employees to strike.” Our cases establish that
an employer’s statement about a potential strike and its right to replace
striking employees, “should this occur,” is a lawful prediction about the
consequences of union representation and not, as the majority states, a
threat of retaliation. See, e.g., Eagle Comtronics, Inc., 263 NLRB 515
(1982) (prediction about consequences of union representation protect-
ed by Sec. 8(c) absent threat of reprisal or force or promise of benefits).
13 For example, the employers’ statements in QSI, Inc., 346 NLRB
1117 (2006), enf. denied in part sub nom. Smithfield Packing Co. v.
NLRB, 510 F.3d 507 (4th Cir. 2007).and Viracon, Inc. 256 NLRB 245
(1981), unlike the Employer’s statement at issue here, were overt and
comparison, the hearing officer found there was a plausi-
ble explanation for the use of the phrase “legal workers”
or “legal workforce” (i.e., that it was a rough translation
of the employer’s description of the “legal” right to hire
replacement employees in the event of a strike).14 Even
without such an explanation, there is no evidence that the
Employer threatened existing employees when using the
term “legal” to describe other people who would be hired
“in the event that the Union went on strike.”
It bears emphasis that nobody contends that the Em-
ployer here threatened, in the event of a strike, to hire
“illegal” workers or an “illegal” work force. Such a
statement might violate Section 8(a)(1), for example, if
an employer threatened to retaliate against striking em-
ployees by replacing them with lower-paid undocument-
ed employees who lacked work authorization. By com-
parison, the instant case deals with the Employer’s indi-
cation that it would hire “legal” workers or a “legal”
work force in the event of a strike. If a party announces
its intention to engage in conduct that is “legal,” the
Board cannot reasonably find this constitutes an objec-
tionable or unlawful threat without some reasonable sup-
port in the record, or the law, for such a counterintuitive
proposition. Neither type of support exists in the cir-
cumstances presented here. Thus, the majority’s under-
lying premise boils down to a speech prohibition: in
effect, our colleagues find that it is objectionable or un-
lawful for an employer to tell employees it will comply
with the law. Such a finding undermines well-
established principles of free speech, which protect the
right of parties to express “views,” “argument” and
“opinion,” where such expressions contain no threat of
reprisal.15 For the reasons stated previously, the record
pointed threats to, respectively, have employees arrested by immigra-
tion authorities and reported to immigration authorities. Similarly, the
Union’s reliance on Mid-Wilshire Health Care Center, 342 NLRB 520
(2004), is unpersuasive because the employer in that case, unlike the
Employer here, explicitly told an employee that it knew that she did not
have papers in order to coerce her into signing a decertification petition.
In Unifirst Corp., 335 NLRB at 707, and L.S.F. Transportation, Inc.,
330 NLRB 1054, 1066 (2000), enfd. 282 F.3d 972 (7th Cir. 2002), the
employers threatened that they would encourage or even cause a strike,
and in Sears Roebuck de Puerto Rico, 284 NLRB 258, 270 fn. 17
(1984), the employer issued “an obvious, objectionable threat” to close
the facility. No similar allegations or circumstances are present here.
Likewise, because the Employer’s action here clearly was not a
“smokescreen” designed to mask retaliatory intent, Nortech Waste, 336
NLRB 554, 554–555 (2001), is clearly distinguishable from the present
case.
14 We note also that there are legal obligations related to hiring any
kind of employee, including strike replacements, that have nothing to
do with immigration law or status and are independent of the Act. E.g.,
Belknap, Inc. v. Hale, 463 U.S. 491 (1983). Thus, hiring a “legal work-
force” is not solely referable to immigration issues or labor issues.
15 Although Sec. 8(c) makes reference only to unfair labor practice
cases, “the strictures of the First Amendment . . . must be considered in

LABRIOLA BAKING CO. 419
here does not support any reasonable inference that the
Employer’s statements constituted such a threat.
The Board has an eventful and uneven history of deal-
ing with immigration-related requirements. In Sure-Tan,
Inc. v. NLRB, 467 U.S. 883 (1984), the Supreme Court
upheld the Board’s position that undocumented aliens
were “employees” under the Act, with protection against
unlawful retaliation based on protected activity, even if
they failed to satisfy the requirements of the Immigration
and Nationality Act (INA). In Hoffman Plastic Com-
pounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme
Court rejected the Board’s position that it could require
backpay for undocumented aliens who never obtained
work authorization as required by the Immigration Re-
form and Control Act (IRCA). Other cases involve dis-
putes when the Board has prevented parties from seeking
or introducing evidence regarding the lack of work au-
thorization. See, e.g., NLRB v. Domsey Trading Corp.,
all cases.” Allegheny Ludlum Corp., 333 NLRB 734, 737 fn. 20 (2001),
enfd. 301 F.3d 167 (3d Cir. 2002).
636 F.3d 33 (2d Cir. 2011); Flaum Appetizing Corp., 357
NLRB 2006 (2011) (majority opinion by Chairman
Pearce and Member Becker; dissenting opinion by
Member Hayes). All of these decisions clearly reflect
two things: (i) federal law imposes immigration and
work authorization requirements on employers and em-
ployees alike; (ii) the existence of these requirements is
no secret.16 The mention of one’s intention to comply
with such requirements—for example, in a phrase such
as “legal workers” or “legal workforce”—cannot reason-
ably be found to violate federal law.
For these reasons, we respectfully dissent from our
colleagues’ finding of objectionable conduct regarding
use of the phrase “legal workers” or “legal workforce”
(Objection 1).

16 Indeed, a prerequisite to any individual’s employment is proof of
citizenship or valid work authorization, which must be reflected in
written I-9 Forms retained by the employer. See, e.g., 8 CFR
§ 274a.2(a)(2).