ORIENT TALLY COMPANY, INC., AND CALIFORNIA CARTAGE COMPANY LLC, A SINGLE EMPLOYER

National Labor Relations Board - Board Decisions

Dec 4, 2018

367 NLRB No. 36 (N.L.R.B. 2018)

367 NLRB No. 36
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Orient Tally Company, Inc., and California Cartage
Company LLC, a single employer and Ware-
house Worker Resource Center. Cases 21–CA–
160242 and 21–CA–162991
December 4, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On February 28, 2018, Administrative Law Judge Ari-
el L. Sotolongo issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel and Charging Party filed answering
briefs, and the Respondent filed a reply brief. The Gen-
eral Counsel filed cross-exceptions and a supporting
brief, the Respondent filed an answering brief, and the
General Counsel filed a reply 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,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The Respondent operates a warehouse and yard in
Wilmington, California. The employees involved in the
instant dispute load, unload, move, and sort merchandise
stored in steel shipping containers. The containers sit
outdoors, and employees spend much of their time inside
the containers. In late 2014 or early 2015, a group of the
Respondent’s employees became involved in activities
supported and organized by the Warehouse Worker Re-
source Center, also known as Warehouse Workers Unit-
ed (WWU). Beginning about August 18, 2015,2 several
of the Respondent’s employees who were affiliated with

1 In the absence of exceptions, we adopt the judge’s findings that
the Respondent violated Sec. 8(a)(1) by (1) coercively interrogating
employee Manuel Reyes on or about July 23, 2015, (2) telling Reyes
not to engage in protected concerted activity by directing him, on or
about July 23, 2015, to bring his work-related concerns directly to
management rather than voice them elsewhere, and (3) impliedly
threatening employee Jose Rodriguez with termination on or about
September 4, 2015, by asking Rodriguez why he did not leave and go
work elsewhere if he was unhappy with his terms and conditions of
employment. Also, in the absence of exceptions, we adopt the judge’s
dismissal of allegations that the Respondent violated Sec. 8(a)(1) by
coercively interrogating Rodriguez on or about September 4, 2015, and
by discouraging employees from engaging in protected concerted activ-
ity on or about October 8, 2015.
2 All dates hereafter are in 2015, unless otherwise indicated.
the WWU began jointly taking heat breaks. The em-
ployees relied on California law that permits employees
to take heat breaks under certain circumstances.
The judge found that the joint heat breaks were pro-
tected concerted activity under Section 7 of the Act.
Accordingly, he found that the Respondent violated Sec-
tion 8(a)(1) of the Act when Operations Manager Freddy
Rivera and Warehouse Manager John Rodriguez ques-
tioned employees about their heat breaks on August 18.
The judge also found that the Respondent’s general man-
ager, Herman Rosenthal, implicitly threatened employees
with unspecified reprisals on or about August 18 in fur-
ther violation of Section 8(a)(1) when Rosenthal angrily
ordered employees to return to work. However, the
judge dismissed allegations that the Respondent violated
Section 8(a)(1) by issuing observation reports to employ-
ees, described below, documenting the heat breaks.
1. We find it unnecessary to pass on the judge’s find-
ing that the August 18 questioning of employees about
the heat breaks violated Section 8(a)(1). As noted above,
there are no exceptions to the judge’s finding that the
Respondent violated Section 8(a)(1) by coercively inter-
rogating employee Manuel Reyes on or about July 23.
Based on this finding, we will order the Respondent to
cease and desist from coercively interrogating its em-
ployees. Accordingly, we need not and do not decide
whether the Respondent coercively interrogated employ-
ees a second time on August 18 because such a finding
would not affect the remedy and would therefore be
merely cumulative. Based on this and our findings be-
low, we also find it unnecessary to pass on the judge’s
predicate finding that the joint heat breaks constituted
protected concerted activity.3
2. We reverse the judge’s finding that Rosenthal im-
plicitly threatened employees with unspecified reprisals.
As more fully set forth in the judge’s decision, the record
establishes that several minutes after the employees
started a heat break on or about August 18, Rosenthal
confronted them in a physically aggressive manner and
loudly ordered them to return to work.4 The judge found
that the manner in which Rosenthal directed the employ-
ees to return to work was implicitly threatening and cal-
culated to cause them to cease engaging in heat breaks
(which the judge had found to be protected by Section 7,
as stated above).

3 No party disputes that the joint heat breaks were concerted activi-
ty. Contrary to the judge, however, the Respondent did dispute whether
the heat breaks were protected concerted activity.
4 The judge found that it was unnecessary to determine if this en-
counter occurred on August 18 or thereafter, on the day of the second
heat break.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We disagree that Rosenthal implicitly threatened em-
ployees. To begin, Rosenthal did not make any state-
ment suggesting that adverse action would be taken
against the employees. He simply ordered employees to
return to work. That he did so loudly and aggressively
does not convert his order into a threat. Indeed, the
Board has declined to find a threat of reprisal on closer
facts than these. See Children’s Services International,
Inc., 347 NLRB 67, 68 (2006) (finding that manager did
not threaten reprisal for employees’ union activity when,
shaking and visibly upset, she expressed her extreme
displeasure with a union flyer, told employees they were
uneducated and lucky to have their jobs, and stated that
she just needed to hit something). Covanta Bristol, Inc.,
356 NLRB 246 (2010), cited by the judge, is distinguish-
able. There, a divided Board found that a manager un-
lawfully threatened unspecified reprisals when he re-
sponded to a union steward’s accusation that the manager
had intimidated an employee by shouting, “You want to
see intimidation? I’ll show you intimidation.” Thus, the
manager in Covanta Bristol made a statement about what
he might do in the future (“I’ll show you intimidation.”).
Rosenthal made no comparable statement.
3. We agree with the judge’s finding that the Re-
spondent did not violate Section 8(a)(1) by issuing re-
ports to employees documenting their heat breaks. There
is no contention that the reports were, in fact, discipli-
nary. Moreover, as the judge found, the Respondents
repeatedly assured employees that the reports were only
observation reports and not disciplinary warnings, and
the judge relied on those assurances to find that the re-
ports were not coercive. We also rely on those assuranc-
es, but, as explained below, the reports themselves would
not reasonably be understood as disciplinary in nature.5
From August 18 through October 8, the Respondent is-
sued written reports to employees when they engaged in
heat breaks. The reports issued on August 18 state in
bold at the top, “EMPLOYEE WARNING
REPORTS.” Below this is a section headed
“IMMEDIATE TERMINATION VIOLATIONS,”
containing a list of serious offenses with a box next to
each offense to mark, if applicable. A double line of
asterisks separates these serious offenses from lesser
offenses, again with a box next to each offense to mark,
if applicable. Below the less serious offenses is “Other
Observation Report,” again with a box to mark if appli-
cable, and this is followed by a section headed
“EMPLOYER/SUPERVISOR REMARKS.” Next,

5 In finding that the reports were not coercive, the judge relied in
part on the fact that they were written in English while many employees
spoke only Spanish. We find it unnecessary to rely on this aspect of the
judge’s reasoning.
the form states: “Any Further Incidents of this Type
Could Result in Further Disciplinary Action Up To and
Including Suspension and/or Termination.” Below this
is an area for an employee to write and sign his or her
remarks, boxes to check to indicate the type of
“ACTION TAKEN” by the supervisor, and a line for an
explanation of the action taken. These forms were modi-
fied for subsequent incidents to varying extents.
Viewed in isolation, some of the pre-printed language
on the forms arguably suggests that the forms are disci-
plinary in nature. See generally SKD Jonesville Division
L.P., 340 NLRB 101, 103 (2003). However, the record
shows that before issuing the reports to employees, the
Respondent consistently marked the box for “Other Ob-
servation Report” and merely noted, under “Employ-
er/Supervisor remarks,” the employee’s request for a heat
break and the duration of the break. The Respondent did
not mark any of the boxes next to any of the “Immediate
Termination Violations” or any of the lesser violations.
The Respondent also did not mark any box for “Action
Taken.” Viewed as a whole, then, the documents issued
to employees did not reasonably tend to create the im-
pression that they were disciplinary in nature.6 For this
reason, as well as for the rationale set forth in the judge’s
decision, we affirm the dismissal of this complaint alle-
gation.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 3:
“3. By interrogating an employee about his protected
concerted activities, by telling employees not to engage
in protected concerted activity, and by suggesting to em-
ployees that those who were not satisfied with their wag-
es, hours, or working conditions should go work else-
where, the Respondent engaged in unfair labor practices
affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.”
ORDER
The Respondent, Orient Tally, Inc. and California
Cartage LLC, a single employer, Wilmington, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their
protected concerted activities.

6 Because no boxes for “Immediate Termination” or lesser viola-
tions were marked on any of the observation forms, and because the
forms, viewed as a whole, did not reasonably create the impression that
they constituted disciplinary actions, employees would not have rea-
sonably deemed the pre-printed statement that “Further Incidents of this
Type Could Result in Further Disciplinary Action” (emphasis added)
to be applicable.
ORIENT TALLY CO., INC. AND CALIFORNIA CARTAGE CO., LLC 3
(b) Telling employees not to engage in protected con-
certed activities.
(c) Implicitly threatening employees with discharge by
suggesting to employees that they should go work else-
where if they are not satisfied with their wages, hours, or
working conditions.
(d) 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) Within 14 days after service by the Region, post at
its Wilmington, California facility copies of the attached
notice marked “Appendix.”7 Copies of the notice, in
English and Spanish, on forms provided by the Regional
Director for Region 21, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since July 23,
2015.
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 21 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. December 4, 2018
______________________________________
John F. Ring, Chairman

7 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.”
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively question you about your pro-
tected concerted activities.
WE WILL NOT tell you not to engage in protected con-
certed activities.
WE WILL NOT implicitly threaten you with discharge
by suggesting you should go work elsewhere if you are
not satisfied with your wages, hours, or working condi-
tions.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
ORIENT TALLY, INC. AND CALIFORNIA
CARTAGE LLC
The Board’s decision can be found at
www.nlrb.gov/case/21-CA-160242 or by using the QR
code below. Alternatively, you can obtain a copy of the
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half St. S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Edith P. Castañeda, Esq. and Cecilia Valentine, Esq., for the
General Counsel.
J. Al Latham, Jr., Esq. and Ryan D. Derry, Esq. (Paul Hastings
LLP), for the Respondent.
Eli Naduris-Weissman, Esq. (Rothner, Segall & Greenstone),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARIEL L. SOTOLONGO, Administrative Law Judge. At issue
in this case is whether certain alleged conduct by Orient Tally,
Inc. and California Cartage LLC, a single employer (Respond-
ent or Employer), in the wake of protected concerted activity by
employees was coercive and thus in violation of Section 8(a)(1)
of the Act.
I. PROCEDURAL BACKGROUND
Based on charges filed by Warehouse Workers Resource
Center (WWRC), also known as “Warehouse Workers United,”
in Cases 21–CA–160242 and 21–CA–162991, the Regional
Director for Region 21 of the Board issued a consolidated com-
plaint on March 21, 2016, alleging that Respondent had en-
gaged in certain conduct in violation of Section 8(a)(1) of the
Act.1
The complaint was later amended during the course of the
hearing, over which I presided in Los Angeles, California, on
June 12–14, 2017.2
II. JURISDICTION
Respondent admits, and I find, that at all material times it has
maintained a principal place of business in Long Beach Cali-
fornia, and a facility in Wilmington, California, where it is
engaged in the business of providing labor services, transload-
ing and deconsolidation services. Respondent further admits,
and I find, that in the past fiscal year, in the course of conduct-
ing its business operations, it has derived gross revenues in
excess of $500,000 and has performed services valued in ex-
cess of $50,000 directly to customers located outside the state

1 These two cases were later consolidated with Cases 21–CA–
173328 and 21–CA–175491 for hearing, cases which were in turn later
severed from the first two cases pursuant to a settlement agreement and
withdrawal of some of the charges, leaving the original cases in the
above caption to proceed to hearing. (See, GC Exh. 1(ee) and (hh).)
2 See GC Exh. 6.
of California. Accordingly, Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.3
Respondent admits, and I find, that the Charging Party,
WWRC, is a person within the meaning of Section 2(1) of the
Act.
III. FACTS
A. Background4
Respondent operates a warehouse and yard in Wilmington,
California, where it loads, unloads, and stores merchandise in
steel shipping containers that arrive in nearby ports. The em-
ployees of Respondent involved in the instant dispute primarily
work as lumpers and forklift operators who load, unload and
otherwise move or sort the merchandise in the containers. As
will be discussed below, these steel containers are stored out-
side, not inside a warehouse, and are thus exposed to the ele-
ments, and the workers spend much of their time inside the
containers. The field of containers is organized by department
or sections, each dedicated to a specific client such as Kmart,
Sears, Amazon, etc. The warehouse houses administrative and
supervisory offices, as well as break areas (lunch tables) and
restrooms.
At all material times during the events at issue in the instant
case, Herman Rosenthal (Rosenthal) was Respondent’s general
manager, in charge if the Wilmington facility. Reporting to
him was Freddy Rivera (Rivera), the operations manager. Re-
porting to Rivera was John Rodriguez (John R), the warehouse
manager.5 As discussed in more detail below, John R is the
front-line supervisor who was the immediate supervisor for
most of the employees involved in this case. All three of the
above-named managers are admitted Section 2(11) supervisors.
Sometime in late 2014 or early 2015 a group of Respond-
ent’s employees became involved in activities supported and
organized by WWRC, which is also known as Warehouse
Workers United (WWU). These activities included picketing
various employers including Respondent, distributing leaflets
(flyers), presenting employee-signed petitions, and taking part
in “delegations” to present such petitions to Respondent. Some
of the employees also started to wear blue T-shirts and fluores-
cent colored safety vests with WWU logos (or emblems) to

3 As briefly mentioned in the preamble, and as reflected in the
pleadings, although Orient Tally Company Inc. and California Cartage
Company, LLC, bear different names and are nominally engaged in
different lines of business, it is admitted in the answer to the complaint
that these two entities constitute a single-integrated business enterprise
and single employer within the meaning of the Act. Accordingly, they
are jointly referred to as “Respondent.”
4 The evidence summarized in this section is either undisputed or
based on uncontroverted testimonial or documentary evidence. Ac-
cordingly, I will not cite the transcript page(s) or exhibit number(s)
relating to these facts, unless there is a specific reason to do so.
5 The reason for using “John R” when referring to John Rodriguez is
because there is another individual whose last name is also Rodriguez
who is frequently mentioned throughout the record, employee Jose
Rodriguez, who will be referred to as “Jose R” in order to avoid confu-
sion.
ORIENT TALLY CO., INC. AND CALIFORNIA CARTAGE CO., LLC 5
work on a regular basis.6 Additionally, WWU, with infor-
mation provided by Respondent’s employees, filed at least one
complaint with Cal-OSHA (OSHA) in June 2015 regarding
alleged health/safety violations at work, a complaint that result-
ed in State of California OSHA inspectors visiting Respond-
ent’s facility in late June 2015 and thereafter issuing a report.
As discussed in more detail below, this complaint and resulting
visit by OSHA inspectors, among other things, was featured in
a WWU flyer distributed at Respondent’s facility.
In light of the above-summarized background, I will now
discuss the series of events that are the subject of the allega-
tions of the complaint.
B. The Events Alleged in the Complaint
1. The July 23, 2015 incident7
As discussed briefly above, sometime between July 20 and
July 23, WWU-affiliated workers distributed a flyer at Re-
spondent’s facility (GC Exh. 4). The flyer, printed in English
and Spanish, reported among other things that OSHA had con-
ducted an inspection of Respondent’s facility on July 20. The
flyer also contained a prominent photograph of Respondent’s
employee Manuel Reyes (Reyes), who is quoted as saying that
Respondent “keeps disrespecting us with low wages and ignor-
ing health & safety laws,” and that Respondent “needs to fol-
low the law by paying us our living wage and having the right
equipment to do our jobs safely.”8
Reyes testified that on July 23, shortly after he arrived at
work, his supervisor, Reyes Ramos (Ramos), informed him that
Rosenthal wanted to speak with him, and they both went to
Rosenthal’s office. Present at Rosenthal’s office when Reyes
and Ramos arrived were Rosenthal, Rivera, Diana West (West)
who is Respondent’s director of administration. According to
Reyes, Rosenthal threw (or tossed) the WWU flyer across the
desk at him and asked him if that was him in the photograph on
the flyer, and Reyes replied that it was. Rosenthal then asked
why he was doing “this,” referring to complaining to OSHA.9
Rosenthal further asked why they were making complaints to
OSHA, and stated that they should bring any complaints to him
directly so that he could make any necessary improvements.
Reyes told Rosenthal that he had had an accident in the past
which caused him to miss work, for which he was never com-
pensated. Rosenthal asked Reyes how long he had worked
there, and when Reyes replied that he had been there 15 years,
Rosenthal replied that he should have known where the pot-
holes were. (Tr. 150–156; 174–176; 177.)
Rosenthal testified that he was upset because of the flyer,
and called Reyes in because of what he said in the flyer, be-
cause he “wanted to hear from the person who lives it, an em-

6 Indeed, Rivera admitted that this group of employees was referred
to as the “blue shirters” by Respondent (Tr. 457).
7 All dates hereafter shall be in calendar year 2015, unless otherwise
specified. This event or incident is alleged in par. 6(a) of the com-
plaint.
8 The living wage reference refers to a Los Angeles ordinance, cited
in the flyer, which directs employers in the area to pay their employees
certain minimum wages and/or benefits.
9 According to Reyes, Rosenthal spoke partly in English and partly
in Spanish, and with the assistance of Rivera, who translated for Reyes.
ployee who is there every day.” He denied having thrown the
flyer at Reyes, but did point at the flyer which was on the desk
between him and Reyes. He asked Reyes why he was on the
flyer and told him to address his concerns about health and
cleanliness. According to Rosenthal, Reyes stated that he was
concerned about the bathrooms being unclean, and Rosenthal
told him that he needed to bring his concerns to “us” (Respond-
ent), so that they could correct the situation. Rosenthal specifi-
cally denied telling Reyes not to go to OSHA and denied men-
tioning OSHA at all.10 (Tr. 327; 329–332; 354; 356; 368; 372.)
Rivera’s testimony about this meeting generally corroborated
that of Rosenthal. He admitted that management had seen the
flyer and was concerned about what Reyes had said in the flyer,
which was the reason they had the meeting with him. They
wanted to talk to Reyes about health and safety and asked him
what his concerns were, so that management could address
those. According to Rivera, Reyes mentioned the dirty re-
stroom, with urine “all over” the toilet and also brought up his
prior injury at work. Rivera testified that Rosenthal never
“threw” the flyer at Reyes and denied that OSHA ever came up
during the meeting, which lasted 5–7 minutes (Tr. 397–402;
451). West also generally corroborated what Rosenthal and
Rivera testified to, testifying that Reyes was called into the
meeting because of the flyer, and was asked about what he said
in the flyer. Reyes mentioned the dirty bathrooms, as described
earlier. OSHA was never brought up, and Rosenthal did not
throw the Flyer at Reyes—indeed, West did not recall the flyer
being present during the meeting (Tr. 461; 463–464; 466–467;
470).
Credibility Resolutions
In this particular instance, I have concluded that there is little
need to resolve the few disparities between the witnesses’ tes-
timony, because those disparities are ultimately not relevant in
reaching a determination as to whether Respondent’s conduct
violated the Act, as will be discussed below. The witnesses all
agree on the salient facts, particularly as admitted by Respond-
ent’s witnesses, which are as follows:
 A flyer discussing the alleged working conditions at Re-
spondent’s facility was distributed there, a flyer which bore
Reyes’ photograph and which quoted him voicing concerns
about those conditions;
 Respondent’s management team, which included the high-
est-ranked supervisors in the facility, saw the flyer, was upset
by it, and called Reyes into a meeting because of the contents
of the flyer;
 During the meeting, Respondent’s officials questioned
Reyes about what he said on the flyer, and told him to bring
any concerns to management.
The only two issues where the testimony of the witnesses di-
gresses: whether Rosenthal “threw” the flyer at Reyes, and
whether the subject of OSHA was ever broached during the
meeting. I conclude that the flyer was present during the meet-

10 Rosenthal admitted, however, being aware that OSHA had con-
ducted an inspection of Respondent’s facility a few days before. He
also admitted that he spoke to no other employees regarding health &
safety at this time. (Tr. 372.)
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, and that Rosenthal pointed or referred to it, as he admitted.
I find it unnecessary, and legally irrelevant, to decide whether
the flyer was thrown. Likewise, I find it unnecessary to make a
finding as to whether OSHA was ever brought up, because it
will ultimately not affect the legal conclusions I reach, as dis-
cussed below.11
Accordingly, I find that the facts as to this event are as de-
scribed above.
2. The “Heat Break” incidents and Respondent’s alleged
reaction to them
(a) The heat breaks12
It is undisputed that beginning about August 18, several of
Respondent’s employees jointly began taking “heat breaks” at
certain times of the day and on various different dates, for the
next several weeks until about the beginning of October.13
What is disputed is what was said and by whom to these em-
ployees, and what Respondent’s supervisors did in response to
such activity. In support of its allegations, the General Counsel
(GC) proffered the testimony of 3 witnesses: Jose Rodriguez
(Jose R), Manuel Reyes (Reyes), and Victor Gonzalez (Gonza-
lez).
Jose R, who has worked for Respondent loading and unload-
ing containers for about 25 years, testified that he and other
employees began participating in activities with the support of
WWU in late 2014 or early 2015. As described earlier in the
background section, these activities included strikes and picket-
ing, leafleting, filing OSHA complaints, collecting signatures
for petitions, and forming delegations to present such petitions
to Respondent’s managers. He and other also frequently wore
the blue WWU T-shirts to work, as well as the safety vests with
WWU logos. According to Jose R, on August 18, about 1 p.m.,
when the temperature inside the containers reached 80 degrees,
he and about 6–7 other employees—who were all wearing the
blue “WWU” T-shirts—first began taking “heat breaks.”14
They stopped working and gathered by the lunch tables (and
water cooler) in the warehouse near supervisor John R’s office.
Jose R and a fellow worker, Rafael Quintero, went inside John
R’s office and informed him they were taking a heat break.

11 Should the Board decide that making a credibility finding regard-
ing the OSHA issue is material or makes a difference, I conclude as
follows: I credit the testimony of Reyes that he was asked why a com-
plaint had been filed with OSHA and told to bring any complaints
directly to management. In so doing, I take into account all the circum-
stances, particularly the fact that OSHA had conducted an inspection of
Respondent’s facility only 3 days earlier (which Rosenthal admitted
being aware of), as described in the flyer, and that Rosenthal admitted
being upset when he read the flyer. I thus find it highly plausible that
OSHA’s visit was fresh in Rosenthal’s mind and was a factor in his
questioning of Reyes, who I infer was likely blamed by Rosenthal for
the OSHA visit, despite his denials.
12 As alleged in pars. 6(b) and (c) of the complaint.
13 Nor is it disputed by Respondent that these activities by its em-
ployees constituted protected concerted activity under the Act.
14 Jose R testified that he learned that under California law, when the
temperature reached 80 degrees and if symptoms related to heat were
present, employees could take certain actions to protect themselves and
employers had to monitor them (Tr. 120–121). This does not appear to
be disputed, but may not ultimately be relevant, as discussed below.
John R said it was fine, but that they had to “clock out,” which
the employees proceeded to do. John R then came out of his
office with a clip clipboard, and proceeded to ask each of the
employees how they felt, whether they were fatigued, and
wrote down their answers. A couple of minutes later, Rivera
arrived in a golf cart, and asked the group what was going on.
Jose R answered that they were taking a heat break, and in re-
sponse Rivera asked if the employer had ever denied them wa-
ter or bathroom breaks, to which they replied no. Rivera then
asked how come the only employees taking a heat break were
wearing the blue (WWU) T-shirts. Jose R replied that they
were taking a break to prevent getting ill because of the heat.
Shortly thereafter, according to Jose R, Rosenthal arrived, look-
ing very mad or upset.15 He approached Reyes and Gonzalez
and in a loud voice told them to go back to work, a command
he repeated in the same manner to all other employees taking
the break. Later, John R, the supervisor, asked Jose R and the
other the employees who took a break that day to sign a “re-
port” describing what had occurred.16 Finally, Jose R testified
that he and the other employees took about 30 additional heat
breaks in the following few weeks. (Tr. 20; 26–28; 31–33; 35–
36; 38–50; 118–121.)
Reyes testified that he worked for Respondent as a forklift
driver from 2000 until March 2016, when he was discharged.
He was one of the participants in different group activities with
the support of WWU, such as strikes and petitions, and was part
of the group that took heat breaks on August 18 and other dates
thereafter.17 On August 18, according to Reyes, he had been
taking the heat break alongside others for about 2 minutes,
when Rosenthal arrived and came right up to him. According
to Reyes, Rosenthal came very close to him physically, so close
that Reyes was sprayed with Rosenthal’s spittle as he yelled at
him, and then others, “Bullshit, Bullshit, get back to work.”
John R then told him to go back to work, because Rosenthal
was mad, and he returned to work. (Tr. 145–148; 158; 160–
164; 166; 170–171.)
Gonzalez testified that he has worked for Respondent for
about 8 years, first as a lumper and then as a forklift driver.
During 2015, he was involved with other coworkers in activi-
ties supported by WWU, including strikes, picketing, forming
part of delegations to the employer, and wearing the blue
WWU T-shits and vests to work. He also took part in taking
heat breaks along coworkers when it was hot, beginning on
August 18. On that date, he joined his co-workers as he saw
them stop their work, and gathered with them by the lunch

15 Jose R explained that he could tell Rosenthal was mad based on
his facial expression and demeanor, as well as his loud voice. (Tr. 46.)
16 Although there is no dispute that Respondent handed the employ-
ees a series of these “reports,” which it asked them so sign, over the
next several weeks, the parties dispute the nature and intent of these
documents, which were introduced into evidence. The General Coun-
sel alleges these were disciplinary warnings, while Respondent con-
tends there were merely “observation reports” documenting what oc-
curred during the heat breaks. These documents, and their contents,
will be discussed in detail below.
17 Reyes confirmed that they informed John R just as they were start-
ing their heat breaks. He also testified that he wore the blue WWU T-
shirt during the period of time they were taking the heat breaks.
ORIENT TALLY CO., INC. AND CALIFORNIA CARTAGE CO., LLC 7
tables and drinking fountain in the warehouse, near John R’s
office, who they notified about the break. About 3–4 minutes
into their heat break, he saw Rosenthal, who looked very mad,
arrive and approach Reyes, getting physically close to him and
yelling “get back to work.”18 Rosenthal then approached an-
other employee, Juan Figueroa, then approached Gonzalez,
coming within 1 foot of him, to the point that Gonzalez held his
hands up, indicating to Rosenthal, who was upset and yelling
“get back to work,” that he should stop before they had physi-
cal contact. Gonzalez went back to work. About 10 minutes
later, according to Gonzalez, his supervisor, John R, came to
where he was working and told him to come with him. They
went to the same lunch table area where he and the others had
earlier taken their heat break, and Rosenthal and Rivera were
there. Rosenthal asked Gonzalez why he had taken a heat
break, and he replied that it was very hot and he had been feel-
ing tired and dizzy. Rosenthal then asked why was everyone
taking a heat break at the same time, and Gonzalez said that he
(and the others) were tired and hot. Rosenthal then told him
that they could not all take a heat break at the same time, but
only if they were sick, throwing up or exhausted. Rosenthal
asked Gonzalez if the supervisors were not treating him well,
and ask if they did not give him enough breaks (of 15 minutes
rather than the standard 10). Gonzalez then received a written
note from John R, which he thought was a warning—as will be
discussed below. Finally, Gonzalez testified that he and the
others did not take heat breaks for another week (Tr. 190; 194–
200; 202–206; 208–212; 231–232; 258–259; 261–264).
Testifying for Respondent with regard to the above-
described incident(s) were John R, Rosenthal and Rivera. John
R testified that the interactions between himself, Rivera and
Rosenthal with the employees taking heat breaks did not occur
on August 18, the first date when such breaks were taken, but
rather on the second occasion on a later date, the exact date
which he could not recall. On August 18, John R testified, he
was approached by Jose R, who told him that he and about 5
other employees were taking a heat break. John R said fine and
proceeded to ask each of them if they were okay, and whether
they needed water or medical attention. The employees re-
sponded that they were fine, but he stayed with them.19 After
the employees returned to work, John R called Rivera and
Rosenthal to inform them of what just occurred. They told him
to alert them next time this occurred. The second time the
group of employees came to him to announce they were taking
a heat break, he alerted Rivera and Rosenthal, who arrived
shortly thereafter. Rosenthal, according to John R, approached
Reyes and asked him what he was doing, and he replied that he
was drinking water. Rosenthal told Reyes to go back to work
when he finished drinking water.20 According to John R,

18 Gonzalez testified that Rosenthal made physical contact with
Reyes (whose work nickname is “Simba”) with his belly, although
Reyes did not corroborate this (Tr. 207; 260–261).
19 In addition to asking the employees how they were feeling, he also
documented their responses and then gave them a written “report”
which he asked them to sign, as will be discussed further below.
20 John R testified that it was “strange” that Reyes was there, since
he worked in a different department from the others, adding that he
indeed asked Reyes “what are you doing here?” (Tr. 289.)
Rosenthal’s demeanor was “normal,” and he never said “bull-
shit” during his exchange with Reyes. John R testified that
these employees took a number of heat breaks during the fol-
lowing weeks, typically twice a day, in the morning and after-
noons (Tr. 283–291; 302; 323–324).
Rosenthal testified that he initially believed that his (and Ri-
vera’s) interactions with the employees taking a heat break had
occurred on August 18, but after listening to John R’s testimo-
ny he agreed that this had occurred during the second heat
break, for the reasons explained by John R.21 On the second
occasion the employees took a heat break, John R alerted Rive-
ra, who in turn alerted him, and they headed to “bay 3” in the
warehouse, where the employees were gathered. When he
arrived, he saw 4–5 employees, all wearing the blue WWU T-
shirts, standing by the water cooler. He approached and asked
them what is going on, to which Jose R, speaking for the group,
replied that they were taking a heat break. He then asked them
if they had any symptoms, to which they replied that they did
not, and then he walked away, letting Rivera talk to them in
Spanish—since most of the employees were Spanish-speaking.
He did not yell, although he spoke in a louder than normal tone
because of the ambient noise in the warehouse. He did not
recall approaching Reyes but testified that he did not speak to
him nor bump him with his belly, nor spray him with spittle.
He further testified that as he was leaving, he saw (Victor)
Gonzalez approaching, and asked him what he was doing.
Gonzalez replied that he was taking a heat break, and Rosenthal
then asked if he had any symptoms, to which Gonzalez replied
that he did not. Rosenthal then went back to his office. He
testified that he did not tell Reyes or any other employee to get
back to work. (Tr. 332–338; 360–362; 364; 374.)
Rivera testified that he received a call from John R on Au-
gust 18 after the employees had finished taking their heat break,
and he told John R to alert him next time it happened. On the
next occasion, after John R alerted him, he alerted Rosenthal
and headed to the area where the employees had gathered.
Rivera, who testified he arrived shortly before Rosenthal, ob-
served several employees sitting on the tables by the water
cooler. He asked them if they were okay or needed any medical
attention, to which they replied no, that they were only taking a
“preventative” heat break. According to Rivera, Rosenthal then
arrived and started talking with the employees, but he could not
recall what Rosenthal said, nor recalled Rosenthal’s demean-
or.22 Nonetheless, Rivera testified that Rosenthal did not seem
angry, and did not recall him saying “bullshit” or “get back to
work.” He saw Rosenthal interact with Reyes by the water
cooler but did not hear him yell or raise his voice, adding that
nothing stood out about that interaction. He added that he did
not recall Rosenthal bumping Reyes with his belly and did not
recall any interaction between Rosenthal and Gonzalez. He
testified that the heat breaks lasted about 5-6 minutes, and less

21 Rosenthal was present in the hearing room during John R’s testi-
mony, as the designated representative of Respondent. All other wit-
nesses were sequestered.
22 During cross examination, Rivera admitted he could not hear what
Rosenthal was saying to the employees, but then, in an apparent con-
tradiction, testified that Rosenthal did not say bullshit,” because he
would have remembered that (Tr. 437–438).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
than 10. (Tr. 403–411; 436–438; 452–455; 457.)
Credibility Resolutions
As can be discerned from the testimony of the witnesses de-
scribed above, there is a conflict between the version of events
testified to by the General Counsel’s witnesses (Jose R, Reyes,
and Gonzalez) and those called by Respondent (John R, Rosen-
thal and Rivera) regarding the heat break events. In assessing
credibility, I must look to a number of factors, including but not
necessarily limited to, inherent interests and demeanor of wit-
nesses, corroboration of testimony and consistency with admit-
ted or established facts, inherent probabilities, and reasonable
inferences that may be drawn from a record as a whole. Hill &
Dales General Hospital, 360 NLRB 611, 615 (2014); Daikishi
Corp., 335 NLRB 622, 633 (2001), enfd. 56 Fed Appx. 516
(D.C. Cir. 2003). Moreover, in making credibility resolutions,
it is well established that the trier if fact may believe some, but
not all, of a witness’s testimony. NLRB v. Universal Camera
Corp., 179 F.2d 749 (2d Cir. 1950). I must also take into ac-
count that the testimony of current employees may be deemed
as particularly reliable when their testimony contradicts that of
their supervisors, because such witnesses are testifying adverse-
ly to their pecuniary interests. Flexsteel Industries, Inc., 316
NLRB 745 (1995); Gold Standard Enterprises, Inc., 234 NLRB
618, 619 (1978). In the present case, I have also taken into
account the effects of the passage of time on memory, given
that the testimony in this case took place about 2 years after the
events in question.
In reviewing the above-described testimony, I note that the
testimony of Jose R, Reyes, and Gonzalez is consistent is de-
scribing the aggressive nature of Rosenthal’s demeanor toward
the employees taking a heat break, including his loud tone of
voice and his insistent directive that they cease what they were
doing and return to work. While there are some minor incon-
sistencies in describing the exact words and conduct by Rosen-
thal—for example his use of the word “bullshit,” and whether
or not he “bumped” his belly against Reyes—the testimony was
nonetheless consistent in describing the salient points described
above. The fact that Jose R and Gonzalez were current em-
ployees at the time of their testimony also enhances their credi-
bility.23 The testimony of Respondent’s witnesses, on the other
hand, was inconsistent and at times contradictory. For exam-
ple, while Rosenthal could not recall any interaction with
Reyes, both John R and Rivera testified that had seen him in-
teracting with Reyes. John R confirmed the account of the
employees that Rosenthal told Reyes to go back to work, some-
thing denied by Rosenthal. Rivera either could not remember
or could not hear what Rosenthal said—although he denied that
Rosenthal had used the expression “bullshit,” which is contra-
dictory. Moreover, I find that the inherent probabilities under
the circumstances favor the accounts of the employees. In that
regard, I note that there is strong circumstantial evidence that
Respondent viewed the employee heat breaks with suspicion if
not hostility, as reflected in its asking why only those wearing
blue t-shirts were engaged in these activities, and in asking how

23 Reyes was no longer employed by Respondent by the time he tes-
tified, but his testimony was consistent with that of Jose R and Gonza-
lez.
come employees appeared to be acting in coordinated fash-
ion—testimony that was not denied or contradicted. In these
circumstances, I conclude that it is highly likely that Rosenthal
acted in the belligerent manner described by the employee wit-
nesses in order to get them to cease their activity.24 I also credit
the testimony of Jose R that Rivera asked him how come only
the employees wearing blue shirts were taking heat breaks,
which Rivera did not deny. Finally, I specifically credit and the
testimony of Gonzalez, who testified he was asked by Rosen-
thal—along with Rivera and John R—why everyone was taking
a heat break at the same time, which was not denied by Rosen-
thal.
Accordingly, I conclude that Rosenthal acted in a physically
and verbally aggressive manner when he confronted the em-
ployees taking a heat break, and that he ordered them to cease
their activity immediately and return to work—as the employ-
ees described in their testimony.25
(b) The written “observation reports” given to employees
engaged in the heat breaks26
It is undisputed that beginning on August 18, and through
October 8, Respondent issued written reports to employees that
engaged in heat breaks, with each separate report corresponding
to the date(s) when the heat break was taken (GC Exh. 5; 7; 8).
It is also undisputed that supervisor John R wrote and issued
these reports to the employees, as directed by his superiors.
What is in dispute, however, is what was said—or not said—to
the employees who were issued these reports, and consequently
what the intent behind these reports was and the possible im-
pact they had—if any—on the employees who received them.
Notably, the complaint does not allege that Respondent disci-
plined these employees, but rather that the reports created the
appearance of discipline.27
The form used for these reports needs to be described—and
reviewed—in order to understand the context of the allegations
regarding these notifications. As mentioned above, the first
time this report or notification was issued to employees was on
August 18, the first time employees took a heat break (GC Exh.
5, p. 1). At the very top of the form, in capitalized and under-

24 In that regard I note that Rosenthal admitted being upset by the
flyer that was distributed by WWU, which precipitated his interview of
Reyes a few weeks earlier. It is therefore reasonable to infer that
Rosenthal viewed the heat breaks as a continuation of activities by
employees that he found irritating, to say the least.
25 It is not crucial to determine whether this incident occurred on
August 18, the day of the first heat break, as claimed by GC’s witness-
es, or occurred shortly thereafter, on the day of the second heat break,
as claimed by Respondent’s witnesses. The important factor is that it
did occur, as described above. Nonetheless, I would note that Re-
spondent’s witnesses’ version is plausible and even makes sense, inas-
much the first heat break took them by surprise and Rosenthal and
Rivera did not find out until it was over—but they were ready to
pounce on the second occasion. Accordingly, if necessary, I would
conclude that this incident occurred on the day the employees took their
second heat break.
26 As alleged in par. 8 of the complaint.
27 Thus, GC did not establish that these reports constituted a form of
discipline that was contained or reflected in the employees’ personnel
files, and consequently GC did not request, as a remedy, that any such
disciplinary records be expunged from the employees’ records.
ORIENT TALLY CO., INC. AND CALIFORNIA CARTAGE CO., LLC 9
lined bold lettering, it says “EMPLOYEE WARNING
REPORTS,” followed by spaces for the employee’s name,
“date of the warning,” company name, and department and shift
information. Immediately below, there is another caption in
bold capitalized letters that says “IMMEDIATE
TERMINATION VIOLATIONS,” followed by a list of of-
fenses meriting such penalty, such as fighting, insubordination,
theft, use or possession of drugs or alcohol, etc., each with a
box next to them to mark, if applicable. Below that, after a
double line of asterisks (***) below the above-described list of
offenses, there is another list of offenses listed, such as absen-
teeism, tardiness, leaving early, and others, each with a box
next to them to mark as applicable , that appear to be separated
from the more serious offenses listed above these as cause for
immediate termination. Immediately below the list of apparent-
ly less-serious offenses, in bold lettering, there is another cate-
gory, in bold letters, which says “Other Observation Report,”
apparently meant to cover other conduct not listed, next to a
box to be checked, if applicable.28 Below that, in bold capital-
ized letters, it says “EMPLOYER/SUPERVISOR
REMARKS, followed by three lines for a supervisor to de-
scribe the conduct or violation observed, followed by a space
for the supervisor’s signature and date. Immediately below
that, in bold, underlined letters, is the following wording: “Any
Further Incidents of this Type Could Result in Further Disci-
plinary Action Up To and Including Suspension and/or Ter-
mination.” Immediately Below, there is an area for the em-
ployee to insert his remarks, and a box to check indicating
whether or not the employee agrees with the facts as described.
Below this is an area for the employee’s signature and date, and
below a caption that reads “ACTION TAKEN:” followed by
boxes to be checked indicating the type of action taken, such as
“Verbal” “Suspension,” “Discharge,” etc., and a line describing
the action taken (GC Exh. 5, p. 1).
The above description belongs to the notification or report
given to Gonzalez by his supervisor, John R, on August 18.
The box next to the caption that says “Other Observation Re-
port” was marked, and below that, under the caption “Employ-
er/Supervisor Remarks,” contained the following remarks (by
John R): “Mr. Gonzalez requested to take a heat break. I asked
him if he felt okay and if he needed medical attention. Asked if
he was feeling dizzy, nausea, or light headed, and he said only
tired because it was hot. Reminded him to drink water. I
stayed there to make sure they were okay. After 7 minutes (2
to 2:07) he returned back to work.”29
As discussed below, these forms were modified for subse-
quent incidents. Starting with the next incident, on September
8, the wording at the very top of the form, which says “Em-
ployee Warning Report,” in bold capital letters, was omitted
(GC Exh. 5, p. 2). Also omitted was the part at the very bottom

28 In the exhibits, the “Other Observation Report” wording is high-
lighted in yellow, but as discussed below, it is not clear if the highlight
existed at the time the reports were given to the employees. John R
testified he created the “Other Observation Report” portion of the doc-
ument for use in the heat break incidents.
29 Every report or notification thereafter contained identical wording
in this space, except for the different time and duration of the break
taken.
of the form, the portion beginning with “Action Taken,” and
everything else below that (the boxes indicating what type of
action was taken). The rest of the form remained identical.30
The form was modified yet again starting on the afternoon of
September 25. At that time, the wording that stated, in bold
italic type, “Any further Incidents of this Type Could Result in
Further Disciplinary Action Up To and Including Suspension
and/or Termination” was also deleted. The form used for these
reports/notifications thereafter remained the same until the last
one was given to employees on October 8 (GC Exh. 5; 7; 8).31
The General Counsel’s witnesses testified as follows with
regard to these reports/notifications: Jose R did not testify at
length about the reports, other than to acknowledge he received
them, and did not recall if the part of the report captioned “Oth-
er Observation Report” was highlighted when he received
them.32 He testified this was the first time he had been issued
these types of reports or notifications, but admitted that John R
told him they were just observation reports (Tr. 61; 70–71; 126;
GC Exh. 2). Gonzalez testified that John R initially told him
these reports were a warning, but also testified that he asked
John R, after the second or third time he had received one, why
he was given these “Immediate Termination Violations” (lan-
guage contained in the actual notification/reports), and that
John R explained that these were only “observations” for their
own records (Tr. 248–249; 253–254; 257–258).33
For Respondent, John R testified that he was directed by Ri-
vera and Rosenthal to use these particular forms. He started
highlighting (in yellow) the “Other Observation Report” cap-
tion, after the first report issued on August 18, so that employ-
ees understood this wasn’t a warning, just an “observation re-
port.” He initially testified that explained this to employees,
although he could not recall the names of individuals he had
explained this to. During cross-examination, however, he testi-
fied that several employees asked if these reports were warn-
ings, including Jose R on the first occasion he issued one, and
that he informed them it was just an observation report.34 He
also testified that disciplinary warnings are forwarded to the
front office, whereas these reports were kept in his office. Ac-
cording to John R, Jose R and others refused to sign the first
report because it was in English, so he started writing them is
Spanish so that they could understand.35 (Tr. 292–296; 304–

30 Thus, such modification was in place for the reports/notifications
given to employees on September 8, September 9, September 10, Sep-
tember 11, and the morning report on September 25.
31 GC Exh. 7 were the forms is Spanish given to Jose R and other
Spanish speaking employees, and GC Exh.8 is their English version
32 Accordingly, I admitted the exhibits (GC Exh. 2) without the high-
lighted portion, since such highlight was not authenticated at the time.
33 This testimony contradicts what Gonzalez said in his Board affi-
davit, taken much closer in time to the date(s) when these events oc-
curred. In his affidavit, Gonzalez states that John R “didn’t tell me that
it was or was not disciplinary in nature,” referring to the so-called ob-
servation reports. Accordingly, I find that Gonzalez was not told these
were disciplinary warnings.
34 Jose R did not rebut this testimony, and accordingly I find that he
asked and was told on the first occasion that these reports were issued
that they were not disciplinary warnings.
35 He also testified that the employees initially did not sign the forms
because they thought they were warnings (Tr. 318). The record shows,
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
306.) Finally, Rivera testified that he was the one who modi-
fied the reports, first adding “Other Observation Reports” and
later taking out the “Employee Warning Report” and “Action
Taken” portions out, and later the portion starting with the
phrase “Any Further Incidents of this Type.” (Tr. 416–417.)
Credibility Resolutions
There is not much to determine, credibility-wise, inasmuch
the forms for the most part speak for themselves. However,
John R’s testimony was by far the most detailed and consistent
about what employees were told about what the purpose of the
forms given to employees in the wake of the heat breaks. Thus,
I conclude, for the reasons previously discussed, that John R
told Jose R and others on the first date that these forms were
not warnings or disciplinary in nature, and thereafter the em-
ployees begun signing the forms. I also note that Gonzalez was
told the same thing, albeit somewhat later, on the second or
third occasion when these forms were issued.
3. The events on or about September 4
Jose R testified that about 4–5 weeks after the first time the
employees began taking heat breaks, John R came to the con-
tainer where he was working and asked him why he was signal-
ing the other workers to start taking their heat breaks. Jose R
asked him if he had seen him do that, to which John R replied
that he had not (Tr. 82–83). In his testimony, John R never
addressed whether or not he had asked Jose R why he was sig-
naling other employees to take heat breaks but testified that he
had seen him beckoning other employees to do that (Tr. 297–
298). In these circumstances, I credit Jose R’s testimony, since
John R did not deny this allegation, and the fact that John R’s
admission that he had seen Jose R signal other employees
makes it more likely that he asked him about it.
Later on the same day, according to Jose R, John R came by
in his golf cart and took him to the office, where Rivera and
Rosenthal awaited. According to Jose R, Rosenthal showed
him a cell phone indicating that the temperature in that area was
75 degrees that day, and therefore employees should not be
taking heat breaks. Jose R explained that he had a thermometer
inside his container which showed it was 84 degrees in there.
Rosenthal then said he did not want to hear his name through
loudspeakers used by picketers, and Jose R replied that was
another matter altogether, that this meeting was about heat
breaks. Rosenthal then asked Jose R, if he did not like the
company, why he did not go somewhere else. Jose R responded
that he had been there many years and liked his job, adding that
he was a good worker. Rosenthal again asked if he did not like
the company, why he didn’t go to a different company. Jose R
responded “are you firing me or what?” Rivera then stepped in
and said that all they were saying was, if he did not feel com-
fortable here, why was he still there. Jose R responded that he
needed the money, and that he was too old to get work from a
different company. Rosenthal then asked Jose R why he had

however that the employees signed all the reports after August 18.
Additionally, it should be noted that only the portion under “Employ-
er/Supervisor Remarks” of the reports issued to Jose R was in Spanish;
the rest of the document was in English (GC Exh. 7). The English
versions were admitted as GC Exh. 8.
“thrown” OSHA on him. Jose R answered because of safety,
health and lack of respect. Rosenthal asked when had had been
disrespected, and Jose R answered many times, proceeding to
give some examples. Jose was asked if they had ever been
denied heat breaks, and he said no, but they were made to
“clock out” and made to sign papers about it, which he called
intimidating.36 (Tr. 84–88; 136–137.)
Rosenthal, Rivera, and John R testified about the above-
described meeting with Jose R in Rosenthal’s office, and they
confirmed the salient facts in Jose R’s account of the meeting.
They thus confirmed that Rosenthal asked Jose R why they
were taking heat breaks when it was only 75 degrees, and con-
firmed Jose R’s reply that it was over 80 degrees inside the
containers where they worked.37 All three witnesses for Re-
spondent also confirmed that Rosenthal asked Jose R why he
did not go work elsewhere if he was unhappy, and that Jose R
in response asked if he was being fired—and that they told him
he wasn’t. (Tr. 300–301; 339; 341-342; 427–429.)
In view of the above, and taking into account the allegations
in the complaint, I conclude no credibility findings need to be
made regarding the above-described meeting between Jose R
and Rosenthal, Rivera, and John R. All witnesses confirm that
Jose R was asked why employees were taking heat breaks when
it was only 75 degrees, and that he was asked why he did not go
work elsewhere if he was unhappy, and that he responded by
asking if he was being fired.
4. The events of October 8
Jose R testified that on October 8, he and about 30 other em-
ployees gathered outside Rosenthal’s office during lunchtime
and knocked on his door to present him with a petition (GC
Exh. 3).38 According to Jose R, initially employees Edelberto
Zamorra (Zamorra) and Carlos Rodriguez (Carlos R) went into
Rosenthal’s office, and then Rosenthal had Reyes come in, and
then Jose R was invited in, but only after Reyes and Zamorra
exited Rosenthal’s office. Jose R explained what the petition,
which requested a wage raise, sick pay, equipment in better
conditions and clean restrooms and dining rooms, was all
about. Rosenthal responded that he would not accede to these
demands, and the delegation left and returned to work after
lunch was over. A short while thereafter, John R came by and
took him to Rosenthal’s office. According to Jose R, Rosenthal
told him he would be sending the petition to the “general of-

36 Other topics were briefly discussed during this meeting, but these
topics are not material to the allegations of the complaint.
37 Rosenthal testified that they asked these questions of Jose R be-
cause they perceived him to be the group’s “leader.” Rosenthal denied
saying anything about OSHA, however. (Tr. 339; 342.)
38 In reality, immediately outside Rosenthal’s office and separated by
a door, is a larger office of various supervisors (including Rivera), and
this office in turn has a door that leads to the warehouse. Thus, there is
a “buffer” area comprised of supervisors’ offices between Rosenthal’s
office and the warehouse. The 30 or so employees were gathered by
the supervisors’ office door (see RX 1, a drawing made by Jose R de-
picting Rosenthal’s office [“R”] and the supervisors’ office immediate-
ly outside Rosenthal’s office [H, S, O, E, R], as well as the door to the
warehouse, with [X] marking the spot where the employees were gath-
ered by the door. (V) marks a window next to the door leading to the
warehouse.
ORIENT TALLY CO., INC. AND CALIFORNIA CARTAGE CO., LLC 11
fice,” which had the authority to respond. Rosenthal then told
Jose R that he did not want everyone to gather in front of his
office, that he wanted them outside the warehouse in the
dock—but not inside the warehouse where he could see them.
In an “aggressive” tone of voice, according to Jose R, Rosen-
thal said “I’m going to speak only with one, man to man.”39
During cross examination, he testified Rosenthal’s office was
too small to accommodate 30 persons (Tr. 91–97; 111–112; R.
Exh.-1.)
Rosenthal testified that the group of about 30 employees
knocked on the door of the supervisors’ office, and that he
came out of his office to meet them there. He told them to
“back off” because other people might need to use that door to
come in or out, and then told them that only one of them could
come in—not all 30. Jose R then came in, handed him the peti-
tion, and told him they needed an answer by Friday (October 8
was a Thursday). Rosenthal further testified that he was some-
what taken by surprise, and is not sure what answer he gave
Jose R—but said he could have said no. He specifically denied
telling Jose R that he did not want to see the employees gath-
ered in the warehouse or within his line of vision, reiterating
that he only told them not to gather in front of the door. He did
not recall telling Jose R that he only wanted to speak “man to
man” to one person, only that he wanted to speak only to one,
not the entire group. After Jose R left his office, he reviewed
the petition more closely and decided to send it to corporate
headquarters. He later called Jose R back to his to inform him
that he would be sending the petition to corporate headquarters,
and Jose R nodded—and nothing else what said.
Credibility Resolutions
I do not view the testimony of Jose R and Rosenthal about
the events on October 8 as mutually exclusive, except in the
limited way described below, and I found them both equally
credible with regard to this instance. In the circumstances de-
scribed, I conclude that Rosenthal, as he testified, told Jose R
and the others not to gather as a group (of 30 or more) at the
entrance to the supervisors’ office, because they were block-
ing—or could block—people from coming in or out.40 As testi-
fied to by Jose R, Rosenthal then met with 2 or 3 of the em-
ployees, including him, in his office—which was admittedly
too small to accommodate a large group. Jose R then testified
that later on, when he and Rosenthal met alone (along with
John R, who translated), Rosenthal said that he did not want to
see employees gathered in the warehouse where he could “see
them,” which Rosenthal specifically denied. In the context of

39 Jose R testified that John R, his supervisor, was present during this
meeting and translated for him and Rosenthal. John R did not testify
about this meeting during his testimony.
40 In its posthearing brief, the General Counsel argues that it is not
credible that anyone’s access was being blocked, because it was
“lunchtime” and, presumably, all the supervisors were out to lunch and
there was therefore no one present to block. No evidence whatsoever
was introduced as to whether the supervisors were indeed at lunch or
were present in the office or nearby, and thus I reject such argument.
Even assuming that the supervisors had indeed stepped out to have
lunch, it is not inconceivable that one or more of them could have re-
turned at any moment and found the door blocked by the large group of
employees gathered there.
these events, I conclude that to the extent the Rosenthal again
said something about the group of employees gathering, it was
just to reiterate what he had said earlier—that he didn’t want
the group gathering at the entrance to the supervisor’s office
because they were potentially blocking egress and ingress. I
believe that something was likely “lost in translation” and that
Jose R may have misinterpreted what Rosenthal actually said
regarding the group gathering nearby. Likewise, I credit
Rosenthal that he told Jose R that he wanted to speak to only
one, not the entire group, and that the “man to man” statement
attributed to him by Jose R, whom I also credit, was in refer-
ence to that. Accordingly, because I find both witnesses equal-
ly credible in this instance, I conclude that the General Counsel
has not sustained its burden of proof as to this allegation.
IV. DISCUSION AND ANALYSIS
A. The July 23 Incident
Paragraph 6(a) of the complaint alleges that Respondent dis-
couraged employees from engaging in concerted activities by
telling them not to do so. The language of this pleading does
not fully cover the precise conduct engaged in by Respondent,
because what actually occurred was slightly different. None-
theless, for the reasons discussed below, I conclude that Re-
spondent’s conduct in this instance was coercive and violated
Section 8(a)(1) of the Act.
As I concluded in the facts section, above, what occurred in
this instance was as follows:
 A flyer discussing wages and working conditions at Re-
spondent’s facility was distributed there, a flyer which bore
Reyes’ photograph and which quoted him voicing concerns
about those issues;41
 Respondent’s management team, which included the high-
est-ranked supervisors in the facility, saw the flyer, was upset
by it, and called Reyes into a meeting because of the contents
of the flyer;
 During the meeting, Respondent’s officials questioned
Reyes about what he said on the flyer, and told him to bring
any concerns to management.
There can be no question that Reyes, along with fellow em-
ployees of Respondent, was engaged in protected concerted
activity by taking part in WWU-related activities and express-
ing his concerns about wages, hours, and working conditions,
as described—and quoted—in the flyer. Indeed, Respondent
admits as much. At issue, then, is whether Respondent violated
the Act when it called Reyes into a meeting to inquire into the
contents of the flyer and his participation therein—and what the
precise nature of the violation is, if any. Both the General
Counsel and Charging Party emphasize the OSHA aspect of the
meeting, arguing that employee participation or involvement in
the filing of an OSHA complaint is protected, and that conse-
quently any restrain or coercion directed at an employee for
such involvement violates Section 8(a)(1). While this is cer-
tainly correct, see, e.g., Michigan Metal Processing Corp., 262
NLRB 275, 276 (1982); Owens Illinois, Inc., 290 NLRB 1193,

41 The flyer was prepared and distributed by WWU in conjunction
with, and the assistance of, Respondent’s employees. (GC Exh. 4.)
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1204–1205 (1988), enfd. 872 F.2d 413 (3d Cir. 1989), this em-
phasis is misplaced, and perhaps unnecessary. This is because
a violation would exist in these circumstances even if OSHA
was never mentioned, indeed even if OSHA did not exist.
Reyes lent his name, along with his opinions and photograph,
to be used in a flyer discussing employee wages and working
conditions, a flyer that was distributed at Respondent’s facility
and which admittedly upset Rosenthal. In response, Reyes was
summoned to Rosenthal’s office, where he faced an entire
phalanx of supervisors—indeed, an entire cross-section of the
supervisory hierarchy at the facility, including his direct super-
visor (Ramos), Ramos’ supervisor (Rivera), and Rivera’s su-
pervisor, Rosenthal, the highest authority in the facility. As if
this weren’t enough, present was also West, an administrative
manager, who may not have had supervisory authority over
Reyes, but whose presence added gravitas to the situation.
They questioned Reyes about his role in the flyer, and about the
contents therein, specifically about the complaints or concerns
he had. In addition, he was told to bring any concerns directly
to management, presumably rather than voice his concerns
elsewhere—in this case, OSHA.
It is well-settled that the circumstances surrounding the ques-
tioning of an employee about his protected activity—that is, the
time, place, manner and rank of those involved—is crucial in
determining whether it is coercive and thus in violation of the
Act. Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984),
affd. sub nom, HERE Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985); Bourne v. NLRB, 332 F.2d 47 (2d. Cir. 1964). The
coercive nature of the circumstances described above is palpa-
ble. It involved not a low-level supervisor casually asking a
question of an employee on the shop floor, but rather the sum-
moning of an employee to the office of Respondent’s principal
authority, where he was questioned by an entire group of su-
pervisors about his protected activity. Such conduct cannot
avoid but having a chilling effect on Reyes and other like-
minded employees, because it sends an indelible message: “this
is what you get for sticking your neck out.”
Respondent argues that it had a valid reason for questioning
Reyes, because an employer needs to be made aware of dan-
gerous or unhealthy conditions so that it can take corrective
action. Such goal is arguably a valid one, but Respondent had a
myriad of ways it could have conveyed such message in a non-
coercive manner. For example, an announcement, either via a
memorandum or in a general meeting, informing all employees
to bring any problems or concerns to management’s attention
(i.e., “if you see something, say something”) would have
achieved such goal without singling out an employee in a coer-
cive manner because he chose to speak out.
Accordingly, I conclude that by engaging in the above-
described conduct, Respondent both interrogated an employee
about his protected activity and dissuaded him from engaging
in it, and thus violated Section 8(a)(1) of the Act.42

42 I am aware that the complaint did not allege an interrogation in
this instance. I note, however, that this matter was fully litigated and
that Respondent had a full opportunity to cross-examine the General
Counsel’s witness and to present its own evidence regarding this event.
In these circumstances, I am permitted to find a violation on a different
B. The August 18 Interrogations by Rivera and Rosenthal
Paragraph 6(b) of the complaint alleges that about August 18
Rivera and Rosenthal interrogated employees about the manner
they took their concerted heat breaks. This allegation refers to
two separate incidents on the same day—which the employees
testified occurred on/about August 18, the first time they took a
heat break, but which Respondent’s witnesses testified actually
occurred at a later date, when the employees took their second
(or perhaps third) heat break.
I credited the testimony of Jose R, who testified that shortly
after the group of 5–6 employees started taking their heat
breaks that day, Rivera arrived in a golf cart, and asked him
(among other things) how come the only employees taking heat
breaks were the ones wearing the blue tee-shirts.43 I also cred-
ited the testimony of Gonzalez, who testified that about 10
minutes after he and the other employees had returned to work
after taking the heat break, John R came by his container and
took him to meet Rosenthal and Rivera, who were at the lunch
area were they had earlier taken their breaks. Rosenthal asked
him why they had taken a heat break, and then asked why eve-
ryone was taking a heat break at the same time.
I conclude, taking into account all the circumstances sur-
rounding these events, that these particular interrogations as to
why only employees wearing the WWU blue t-shirts were tak-
ing such breaks, and how come they all took the break at the
same time, were coercive and violated the Act.44 These ques-
tions, asked in the manner and under the circumstances they
were, conveyed a tone of suspicion if not hostility toward the
employees’ protected activity, further underscored by the phys-
ically aggressive manner in which Rosenthal conducted himself
during his initial encounter with the employees taking heat
breaks, as discussed below. Indeed, it can be reasonably in-
ferred from Respondent’s conduct that at the time it likely con-
sidered the employees’ heat breaks as illegitimate and unpro-
tected work stoppages, brought about by employees conspiring
with WWU, and hence the repetitive nature and scope of the
questions. I also take into account that these interrogations
were not conducted by low-level supervisors during casual
shop-floor bantering, but were rather conducted by Rosenthal
and Rivera, the two highest- ranked management officials, who
went literally out of their way to confront these employees.
Accordingly, and in view of the above-described circum-
stances and factors, I find that Respondent violated Section
8(a)(1) of the Act by interrogating Jose R. and Gonzalez on this

theory than explicitly plead by the General Counsel. Hawaiian Dredg-
ing Construction Co., 362 NLRB 81, 82 fn. 6 (2015); Space Needle,
LLC, 362 NLRB 35, 38 (2015); Noel Canning, 364 NLRB No. 45, slip
op. at 5 (2016).
43 This refers to the blue T-shirts with the WWU logos. Rivera ad-
mitted referring to these employees as the “blue shirters.”
44 On the other hand, I do not find the question as to why they were
taking a heat break to be coercive. Given the fact that these breaks
were an unusual occurrence, particularly the first or second time they
occurred, I conclude that Respondent, as any employer, would be enti-
tled to know why there was a work stoppage. This is particularly true in
light of the fact that these employees were ostensibly basing their ac-
tions on the temperature reaching 80 or more degrees, which they be-
lieved was permitted under California law—as discussed below.
ORIENT TALLY CO., INC. AND CALIFORNIA CARTAGE CO., LLC 13
occasion. Vista Del Sol Healthcare, 363 NLRB No. 135, slip
op. at 17 (2016); Camaco Lorain Mfg. Plant, 356 NLRB 1182,
1182–1183 (2011).
C. The August 18 Conduct by Rosenthal
Paragraph 6(c) of the complaint alleges that about August 18
Rosenthal implicitly threatened employees with unspecified
reprisals. Specifically, this allegation refers to Rosenthal’s
conduct in confronting the employees taking heat breaks, which
the employees testified occurred on the first day they took such
breaks. Rosenthal denied engaging in such conduct, although
he and the other employer witnesses admitted there were en-
counters between Rosenthal and the employees on the second
occasion they took heat breaks. I credited the testimony of the
employee witnesses, all of whom consistently described Rosen-
thal act in a physically aggressive fashion toward the employ-
ees, getting physically close to employees and commanding
them to return to work in a loud manner. The employees de-
scribed Rosenthal as being upset or angry, based on his facial
expressions and body demeanor, and I conclude that indeed he
was. I find that he used his physically aggressive manner, and
raised voice, to project and impose his managerial authority on
the employees in order to get them to cease their protected ac-
tivity, and that such conduct was implicitly threatening—and
coercive—under the circumstances. See, e.g., Covanta Bristol,
Inc., 356 NLRB 246 (2010).45
Accordingly, I conclude that Rosenthal’s conduct had the
tendency to reasonably coerce employees in their exercise of
their Section 7 rights, and thus violated Section 8(a)(1) of the
Act.
D. The September 4 Interrogation by John R
Paragraph 6(f) of the complaint alleges that on September 4,
John R interrogated an employee about his protected concerted
activities. Jose R testified than on that date, John R, his super-
visor, came by the see him in the container where he was work-
ing and asked him why he was signaling other employees to
take heat breaks. Jose R replied, asking John R if he had ever
seen him do that, and John R replied that he had not. I credited
Jose R’s testimony, since John R never denied this occurred.
The General Counsel and Charging Party allege that Re-
spondent had no valid reason to ask Jose R about the heat
breaks, and thus that this interrogation, like the others described
above was unlawful. I disagree. Taking into account the fac-
tors discussed in Rossmore House and Bourne, supra, I do not
view this particular interrogation as coercive. In that regard I
note that this conversation took place in Jose R’s container, the
functional equivalent of a “shop floor” conversation, and that it
was conducted by his immediate supervisor, a low-level super-

45 The manager’s conduct in Covanta, which involved banging his
hand on a table and stating, “I’ll show you intimidation,” had a stronger
and more ominous verbal component than the current situation, which
involved Rosenthal raising his voice and a command to return to work.
Nonetheless, I find that Covanta suggests that the combination of phys-
ically and verbally aggressive conduct can reasonably be seen as coer-
cive by employees.
visor.46 Moreover, the record clearly suggests that by this time
Jose R, due to his seniority and active participation in WWU
activities, was seen as a “leader” by his coworkers, and one that
had not been shy about expressing his views to management.
He challenged John R about the assertion that he had been sig-
naling others, and John R conceded that he had not seen him do
that—and left it at that.
Accordingly, and in view of these factors, I conclude that
this particular conversation would not reasonably tend to coerce
an employee in these circumstances, and therefore did not vio-
late Section 8(a)(1) of the Act. I recommend that this allega-
tion of the complaint be dismissed.
E. The September 4 Implicit Threat by Rosenthal and Rivera
Paragraph 7 of the complaint alleges that on September 4,
Rosenthal and Rivera implicitly threatened employees with
termination because of their protected concerted activity. This
allegation refers to what occurred during a meeting in Rosen-
thal’s office on that day between Rosenthal, Rivera, John R,
and Jose R. I credited Jose R’s testimony as to what occurred
during this meeting, particularly in view of the fact that all the
salient facts were confirmed by Rosenthal, Rivera, and John R.
Thus, I found that during the course of the meeting, Rosenthal
asked Jose R why he did not leave and go work elsewhere if he
was unhappy with the way things were at the company. In
response, Jose R asked “are you firing me, or what?”
The Board has long found statements like the ones made by
Rosenthal to be unlawful because such statements imply a
threat of job loss. Pacific Coast Sightseeing Tours & Charters,
Inc., 365 NLRB No. 131, slip op. at 10 (2017); Medco Health
Solutions of Las Vegas, Inc., 364 NLRB No. 115, slip op. at 3
fn. 4 (2016); Jupiter Medical Center Pavilion, 346 NLRB 650,
651 (2006); McDaniel Ford, Inc., 322 NLRB 956, 962 (1997).
The Board explained its rationale in Jupiter Medical Center, at
651:
The Board has long found that comparable statements made
either to union advocates or in the context of discussions
about the union violate Section 8(a)(1) because they imply
that support for the union is incompatible with continued em-
ployment. Rolligon Corp., 254 NLRB 22 (1981). Sugges-
tions that employees who are dissatisfied with working condi-
tions should leave rather than engage in union activity in the
hope of rectifying matters coercively imply that employees
who engage in such activity risk being discharged.
While Jose R was not engaged in union activity, but rather in
protected concerted activity, this is a difference without a dis-
tinction. Indeed, Jose R’s reaction to Rosenthal’s statement,
asking whether he was being fired, perfectly illustrates the
point made by the Board in Jupiter, as cited above. According-
ly, I conclude that Respondent violated Sec. 8(a)(1) of the Act
by making the above statement, as alleged in paragraph 7 of the
complaint.
F. The Reports Prepared by Respondent
Paragraph 8 of the complaint alleges that commencing on

46 I note that although John R’s official title is “manager,” he is a
front-line, first level supervisor.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
August 18 Respondent issued reports/documents to employees
that appeared to be disciplinary in nature in response to em-
ployees engaging in protected activity, namely taking heat
breaks. As described earlier, it is not alleged that employees
were actually disciplined, but rather that these reports created
the appearance of discipline. It is undisputed that beginning on
August 18, and through October 8, John R wrote these reports
every time that the employees took heat breaks and gave a copy
to each of the employees which had taken a heat break. The
General Counsel and Charging Party argue that these reports,
because of the disciplinary language contained in the pre-
printed forms—in fact these forms were typically used by Re-
spondent for disciplinary purposes—reasonably created the
appearance that discipline was being imposed, an intentional
act to coerce the employees. Respondent argues that it was
only documenting the employees’ reported symptoms in these
unusual circumstances, essentially in order to protect itself, and
that it reassured these employees that they were not being dis-
ciplined. Both sides make valid arguments, and in my view, it
is a close issue in the midst of a deeply gray zone. On balance,
however, and for the following reasons, I am persuaded that the
Respondent did not violate the Act in this instance.
Without a doubt, at first glance, the pre-printed language in
these forms looks ominous, and as counsel for Respondent
conceded, these were “bad forms” (Tr. 127). Bold-lettered
language that states “Immediate Termination Violations” and
warn that “Any Further Incidents of this Type could Result in
further Discipline…” stand out, among others, and could rea-
sonably create the impression on the recipient of such form that
he/she is indeed being disciplined. The question then becomes
what Respondent did, if anything, to cure such impression, and
to re-assure the recipients that they were not being disciplined,
and whether such reassurances were made in a way that any
reasonable individual would so understand. The evidence
shows that Respondent did—over time—edit out some of the
pre-printed language in the form that was the most offensive
but did not do so until many such reports had been issued.
Accordingly, by itself, these edits would not cure the reasona-
ble impression that such forms/reports were disciplinary in
nature. The record shows, however, that early on John R told
Jose R, Gonzalez, and other employees that these reports were
not disciplinary, and suggests that they so understood.
In that regard, I credited John R’s testimony that the told Jo-
se R on the first occasion that he issued such report—on August
18—that these were only observation reports related to their
heat break, and not disciplinary warnings, which Jose R admit-
ted—or at least did not deny.47 John R also testified that he
told several of the other employees, and there was no evidence
submitted to rebut such testimony. Likewise, Gonzalez admit-
ted that John R told him, albeit after the second or third occa-
sion, that these reports were not disciplinary, only observation
reports. 48 Additionally, I credited John R’s testimony that the
employees had initially declined to sign the initial report on

47 See Tr. 126.
48 I did not credit Gonzalez’ testimony that John R initially told him
these were disciplinary warnings, because such testimony was contra-
dicted by his affidavit.
August 18 because his observations were written in English,
which they could not understand because they were Spanish-
speaking. He then started to write the observations in Spanish
beginning with the next report, which the employees then pro-
ceeded to sign (GC Exh. 7). This fact adds another layer of
complexity to the General Counsel’s (and Charging Party’s)
theory of a violation, since the “ominous” pre-printed language
of the reports was in English, and therefore we cannot assume
that the employees reasonably understood such language to be
of a disciplinary nature. At best, in this particular instance, it
can reasonably be said that there is an element of doubt as to
whether the employees in question would so understand. Inas-
much the burden of proof lies with the General Counsel to es-
tablish by a preponderance of the evidence that a violation took
place, I am not persuaded that such burden has been satisfied in
this instance.49
Even if we could assume that the employees understood the
nature of the pre-printed language and reasonably believed that
they were being disciplined, the ultimate issue, as mentioned
above, is whether Respondent cured or mitigated such impres-
sion. I conclude that it did, when John R initially informed
them on the first occasion that these reports were mere observa-
tions and not disciplinary. The evidence, circumstantial as it
may be as to those employees who did not testify, suggests that
they so understood. Further, the comments written by John R
clearly described questions he asked them about their symp-
toms, and their answers, and suggested no disciplinary conse-
quences. I find that the cases cited by the General Counsel and
the Charging party are not clearly on point. For example, the
General Counsel cites Publix Supermarket, Inc., 347 NLRB
1434, 1436 (2006), for the proposition that threatening or sug-
gesting discipline for engaging in protected activities is unlaw-
ful, which is correct. That very case, however, suggests that the
employer’s failure to retract or otherwise cure that threat is
what ultimately proved fatal. In that regard, the Board has
often noted that a timely retraction or reassurance that no ad-
verse consequences will follow can cure or negate an initial
coercive statement or act, as Respondent did in this case.50

49 Gonzalez testified in English and thus we can assume the signifi-
cance of the pre-printed language, as he alluded to in his testimony. As
discussed above, however, he admitted John R told him these reports
were not disciplinary in nature.
50 The General Counsel and Charging Party advance other arguments
that I find unpersuasive or simply miss the point. For example, they
argue that under California law, Respondent was not required or obli-
gated to write reports about employees’ symptoms (or lack thereof)
during heat breaks, and therefore Respondent had no valid reason to do
so, and thus it must be inferred that the only motive was intimidation.
Regardless of what California law requires or not, there can be no
doubt that in a case such as this, were employees were essentially com-
plaining about having to work in conditions that could render then ill,
and where Respondent could thus be exposed to civil if not criminal
liability, it is eminently wise to keep a record of employee complaints
and symptoms, lest something occur. Indeed, from a business and legal
standpoint, if not out of sheer common sense, it would be negligent for
Respondent not to do so in these circumstances. Another argument that
is advanced, or at least implied, is that once employees engage in pro-
tected activity, it is automatically coercive for an employer to ask the
employees any questions about such activity, essentially because it’s
ORIENT TALLY CO., INC. AND CALIFORNIA CARTAGE CO., LLC 15
Accordingly, and for the above reasons, I am not persuaded
that the written reports issued to the employees who took heat
breaks were coercive, since any potential impression of their
being disciplinary in nature was cured by Respondent’s assur-
ances that they were not. In light of the above, I find that Re-
spondent did not violate Section 8(a)(1) in this instance and
recommend that paragraph 8 of the complaint be dismissed.
G. The October 8 Incident
Paragraph 6(g) of the complaint alleges that on October 8,
acting through Rosenthal, Respondent discouraged employees
from engaging in protected concerted activity. This refers to
the alleged comments by Rosenthal to Jose R that he did not
want employees gathered outside his door or in the warehouse
where he could see them. As discussed in the facts section,
however, I did not credit Jose R’s version of this conversation,
but rather credited Rosenthal’s version that he told Jose R (and
the others) not to gather in front of the supervisors’ office door
because they were blocking such entrance. Likewise, I did not
credit the allegation that Rosenthal told Jose R that he would
only meet with only one of them man-to-man. Indeed, accord-
ing to Jose R’s version, during their initial encounter that day,
Rosenthal meet with him and 2 others, which tends to under-
mine the latter allegation. In any event, I have not found the
facts in this instance to be as alleged by the General Counsel,
and I do not find the statement by Rosenthal to Jose R and the
others not to block the door as coercive or otherwise unlawful.
Accordingly, I recommend that paragraph 6(g) of the com-
plaint be dismissed.
CONCLUSIONS OF LAW
1. Orient Tally, Inc. and California Cartage LLC, a single
employer (Respondent) is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Warehouse Workers Resource Center (WWRC) is a per-
son within the meaning of Section 2(1) of the Act.
3. By interrogating employees about their protected concert-
ed activities; by telling employees not to engage in protected
concerted activity; by impliedly threatening employees with
unspecified reprisals because of their protected concerted activ-
ities; and by suggesting to employees that those who were not
satisfied with their wages, hours or working conditions should
go work elsewhere, the Respondent engaged in unfair labor

none of their business. This is contrary to the teachings of Rossmore
House and its progeny, and certainly not in a situation such as present-
ed here. In this case, employees started taking heat breaks once the
temperature reached 80 degrees inside the containers where they
worked, ostensibly because that is what California law allowed them to
do. Assuming that is correct—and regardless of whether in fact that is
the law—the premise is that a threshold of 80 degrees is the triggering
condition that allows them to take such breaks, and it is not unreasona-
ble, let alone coercive, for an employer to inquire whether in fact such
threshold had been reached. The General Counsel’s and Charging
Party’s arguments suggest that once employees declared that it was 80
degrees inside the containers, the employer must acquiesce and accept,
no questions asked, perhaps even if the temperature was 20 degrees and
there were 10 foot snowdrifts outside. I reject such blanket assertions
of unchallengeable employee privilege, because it is simply not a rea-
sonable argument, nor supported by precedent.
practices affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
4. By the conduct described above, the Respondent has vio-
lated Section 8(a)(1) of the Act.
5. Respondent has not otherwise violated the Act as alleged
in the complaint.
REMEDY
The appropriate remedy for the Section 8(a)(1) violations I
have found is an order requiring Respondent to cease and desist
from such conduct and take certain affirmative action con-
sistent with the policies and purposes of the Act.
Specifically, the Respondent will be required to cease and
desist from interrogating employees about their protected con-
certed activities; from telling employees not to engage in pro-
tected concerted activity; from impliedly threatening employees
with unspecified reprisals because of their protected concerted
activities; and from suggesting to employees that those who
were not satisfied with their wages, hours or working condi-
tions should go work elsewhere. Moreover, Respondent will be
required to post a notice to employees, in English and Spanish,
assuring them that it will not violate their rights in this or any
other related matter in the future. Finally, to the extent Re-
spondent communicates with its employees by email, it shall
also be required to distribute the notice to employees in that
manner, as well as any other electronic means it customarily
uses to communicate with employees.
Accordingly, based on the forgoing findings of fact and con-
clusions of law, and on the entire record, I issue the following
recommended51
ORDER
Respondent, Orient Tally, Inc. and California Cartage LLC,
a single employer, Wilmington, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their protected concerted
activities;
(b) Telling employees not to engage in protected concerted
activities;
(c) Impliedly threatening employees with unspecified re-
prisals because of their protected concerted activities; and
(d) Suggesting to employees that those who were not satis-
fied with their wages, hours or working conditions should go
work elsewhere.
2. Take the following affirmative action to effectuate the
policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cilities Wilmington, California, where notices to employees are
customarily posted, copies of the attached notice marked “Ap-
pendix.”52 Copies of the notice, in English and Spanish, on

51 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
52 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-
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forms provided by the Regional Director for Region 21, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places where
notices to employees are customarily posted. In addition to
physical posting of paper notices, the notices shall be distribut-
ed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, 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 current employees and former employees employed by the
Respondent at any time since September 18, 2015.
(b) Within 21 days after service by the Region, file with the
Regional Director for Region 21, a sworn certification of a
responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated: Washington, D.C. February 28, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

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.”
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
In recognition of these rights, we hereby notify employees
that:
WE WILL NOT interrogate employees about their protected
concerted activities.
WE WILL NOT tell employees not to engage in protected con-
certed activities.
WE WILL NOT impliedly threaten employees with unspecified
reprisals because of their protected concerted activities.
WE WILL NOT suggest to employees that those who were not
satisfied with their wages, hours or working conditions should
go work elsewhere.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed by
Section 7 of the Act.
ORIENT TALLY, INC. AND CALIFORNIA CARTAGE LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/21-CA-160242 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.