Pacific Coast Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2010

355 N.L.R.B. 1422 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 226
1422
Pacific Coast M.S. Industries Co., Ltd. and General
Teamsters, Local 439, International Brother-
hood of Teamsters. Cases 32–CA–22748–1, 32–
CA–22861–1, and 32–RC–5443
September 30, 2010
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE AND
HAYES
At issue in this case are various unfair labor practice
allegations, ballot challenges, and election objections
arising out of a 2006 representation campaign among the
employees at the Respondent’s facility.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified below, and to adopt his recommended Order as
modified and set forth in full below.3
A key question in this case is whether the Respon-
dent’s team leaders are statutory supervisors. As ex-
plained below, we find that the team leaders are not su-
pervisors and accordingly direct that the challenged bal-
lots, all of which were cast by team leaders, shall be
opened and counted and that a revised tally of ballots
shall be prepared. We also resolve the unfair labor prac-
tice allegations and order appropriate remedies.4 How-
ever, as discussed below, we do not, at this time, resolve
the election objections.

1 On May 25, 2007, Administrative Law Judge Jay R. Pollack is-
sued the attached decision. The Respondent filed exceptions and a
supporting brief, the General Counsel and the Union filed answering
briefs to the Respondent’s exceptions, and the Respondent filed a reply
brief to each answering brief. The Union filed cross-exceptions and a
supporting brief, and the Respondent filed an answering brief. The
Respondent further filed a motion to strike the Union’s cross-
exceptions and supporting brief; the Board denied this motion by Order
dated September 17, 2007.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
3 We will modify the judge’s recommended Order to conform to the
violations found and to the Board’s standard remedial language, and in
accordance with our decisions in Ferguson Electric Co., 335 NLRB
142 (2001), and Excel Container, 325 NLRB 17 (1997). We will sub-
stitute a new notice to conform to the Order as modified.
4 We are mindful that the Respondent may have closed its plant,
possibly affecting the implementation of certain remedies ordered here.
Absent a showing of the need for remedial modifications, however, we
will order our standard remedies and leave any modifications to be
resolved in compliance proceedings.
The Respondent, which is a subsidiary of two Japanese
corporations, Maruyasu and Sekiso, manufactures auto-
motive parts. Its primary client has been the General
Motors/Toyota joint venture, New United Motor Manu-
facturing, Inc. (NUMMI). The highest ranking official at
the Respondent’s Tracy, California facility is the com-
pany’s vice president; at the time of the events at issue,
Richard Hendrick held that position.5 Top management
included Sekiso senior vice president (first name un-
known) Yazawa and Maruyasu/Respondent President
Singi Yamada, both of whom resided in Japan. Under
Hendrick’s supervision in the Tracy plant were various
managers, including Assistant General Manager Ryan
Sharffenberg, Production Manager Brian Juarez, and
Human Resources Manager Dawn Tipton. Below the
various managers are group leaders, who are undisputed
supervisors. Below group leaders are team leaders
(TLs), whose supervisory status is at issue. Below team
leaders are team members, who are rank-and-file em-
ployees carrying out the facility’s production work.
In late March 2006,6 a union organizing campaign be-
gan among some of the plant’s employees. The Respon-
dent discovered that TL Felicia Montes was a union sup-
porter in mid-April, after she spoke with two other TLs
about the Union; Montes was unlawfully subsequently
suspended and fired.7 In the course of the Respondent’s
investigation of Montes’ conduct, its managers unlaw-
fully questioned her and other TLs about employees’
union activities and prohibited them from engaging in
union activities.8 The Union filed a representation peti-
tion on June 20, and on June 29 the parties stipulated to
the terms of an election to be held on July 28. Beginning
just after the election date was set, group leader Jose
Quiñones made various statements to employees that
constituted unlawful threats, notwithstanding the Re-
spondent’s attempts to repudiate them.9 Finally, on June

5 At the time of the hearing in this case, Hendrick was a senior man-
ager, overseeing human resources and other departments.
6 All subsequent dates are in 2006, unless otherwise specified.
7 We adopt the judge’s findings that the Respondent violated Sec.
8(a)(3) and (1) by first suspending and then discharging Montes for
speaking in favor of the Union to other employees. In exceptions, the
Respondent defends its actions on the sole basis of its claim that Mon-
tes was a supervisor. As discussed herein, we agree with the judge that
Montes and other TLs were not supervisors.
We reject the Union’s contentions that the judge erred in failing to
find additional, unalleged violations of Sec. 8(a)(1) related to Montes’
conversations.
8 The Respondent’s only exceptions to the judge’s findings that
these actions violated Sec. 8(a)(1) turn on its nonmeritorious contention
that TLs were supervisors. We note that the judge failed to make an
express finding, which he clearly intended, that TL Montes was unlaw-
fully interrogated about her own union activities.
9 We agree with the judge that the Respondent did not effectively
repudiate group leader Quiñones’ threats of futility, plant closure, and
PACIFIC COAST M.S. INDUSTRIES 1423
30, Hendrick unlawfully announced that employees
would receive an across-the-board pay raise, effective
July 1.10
When the election was held, TLs’ ballots were chal-
lenged based on the parties’ disagreement about the TLs’
supervisory status. The vote tally reflected 33 votes in
favor of the Union, 28 votes against, and 10 challenged
ballots, of which 9 remain unresolved. All 9 remaining
challenges turn on the supervisory status of the TLs who
cast them, and the validity of TL Montes’ ballot depends
also on the lawfulness of her discharge. The Respondent
filed objections based on the arrangement of the polling
place, the number of union observers, alleged election-
eering by a union observer, prounion conduct by certain
TLs, and an apparent vandalism incident at a voter’s
home.11 The Union filed conditional objections (in the
event the challenged ballots’ resolution were to reverse
the election outcome) based on Quiñones’ alleged threats
and the wage increase.
1. Team leaders’ alleged supervisory status
TLs in the Respondent’s facility oversee certain as-
pects of the work of team members. The Respondent
argues that TLs are statutory supervisors, while the Un-

job loss due to striker replacements if the employees unionized. (The
Respondent does not except to the judge’s findings that the initial
threats were unlawful.) Subsequent statements made by the Respon-
dent’s officials did not admit wrongdoing, referred only to the plant
closure threats, and failed to give adequate assurance to employees that
the Respondent would not interfere with their Sec. 7 rights in the future.
The Respondent therefore clearly failed to satisfy the standards for
repudiation set forth in Passavant Memorial Area Hospital, 237 NLRB
138 (1978).
10 We agree with the judge’s conclusion that the wage increase was
granted for the purpose of influencing the employees’ votes in the
upcoming election. The Respondent’s own documents demonstrate
that the onset of union organizing was considered a significant justifica-
tion for the raise. Moreover, Hendrick acknowledged that the union
organizing was “certainly a reason” (although not the only reason, he
said) for his decision to seek approval for the pay raise. We need not
rely on the judge’s finding that the decision to grant the pay raise was
not finalized before the petition was filed on June 20. Hendrick’s tes-
timony suggests that the decision may have been made in early June,
and the judge did not expressly discuss this evidence (though he may
have implicitly discredited it).
We reject the Union’s contention that, as a remedial matter, it should
be entitled to request rescission of the wage increase. Rescission upon
union request is a standard Board remedy in cases involving 8(a)(5)
unilateral changes. In such cases, the right to seek rescission remedies
the violation of a union’s right, as the employees’ representative, to
bargain over the wage increase. Here, the wage increase interfered
with employees’ free choice in the election and thus violated Sec.
8(a)(1); it did not violate Sec. 8(a)(5) because the Union was not owed
a bargaining duty at the time of the decision. Consequently, a rescis-
sion remedy is not appropriate in this case.
11 We need not supplement the judge’s description of the facts perti-
nent to the parties’ objections at this time, other than explaining in sec.
2, below, why we are not resolving the objections in this decision.
ion and the General Counsel contend that TLs lack statu-
tory indicia of supervisory authority.
Under Board and Supreme Court precedent, in order to
be a statutory supervisor, an individual must have the
authority to effectuate or effectively recommend at least
one of the supervisory indicia enumerated in Section
2(11) of the Act, using independent judgment in the in-
terest of the employer.12 Oakwood Healthcare, Inc., 348
NLRB 686, 687 (2006) (citing NLRB v. Kentucky River
Community Care, 532 U.S. 706 (2001)). In contending
that TLs are supervisors, the Respondent relies primarily
on their asserted authority to assign, discipline, and ef-
fectively recommend hiring.13
a. Assignment of team members
The Respondent’s policies provide that team members
within each department must rotate among their depart-
ment’s various tasks or workstations. Assignments
within the rotation, which last 60–90 minutes in some
departments and a week in others, are set forth in a “rota-
tion schedule” that informs team members what tasks or
workstations they are assigned to, and during what pe-

12 Sec. 2(11) provides that a supervisor is one who possesses “au-
thority, in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the forego-
ing the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.”
13 The Respondent cites several other bases for TLs’ alleged supervi-
sory authority, all of which we reject. The authority to evaluate em-
ployees’ performance is not a 2(11) indicium; thus, as is the case here,
“when an evaluation does not, by itself, affect the wages and/or job
status of the employee being evaluated, the individual performing such
an evaluation will not be found to be a statutory supervisor.” Willia-
mette Industries, 336 NLRB 743, 743 (2001) (quoting Elmhurst Ex-
tended Care Facilities, 329 NLRB 535, 536 (1999)). Training team
members is also not a supervisory indicium, and as the judge found,
team members as well as TLs trained the Respondent’s team members.
Authority to grant or deny time off is a secondary indicium of supervi-
sory status. Sam’s Club, 349 NLRB 1007, 1014 (2007). Absent pri-
mary indicia of supervisory status, secondary indicia are not disposi-
tive. Training School at Vineland, 332 NLRB 1412, 1412–1413 fn. 3
(2000). Moreover, we agree with the judge that TLs’ role in processing
time-off requests was limited to assessing staffing adequacy, a routine
task that did not involve independent judgment. Pay differentials are
likewise secondary indicia, and in any event, the only relevant evidence
is the testimony of former TL Lue Vang, who appeared to be describing
his pay at the time of the hearing, after his promotion to group leader.
TLs’ inclusion in training programs meant for supervisors shows, at
most, the Respondent’s belief that they were supervisors, but not their
possession of supervisory authority. As for TLs’ signing timesheets
and timeclock corrections, the judge properly found these to be clerical
functions that merely confirmed employees’ presence at work at par-
ticular times and did not involve independent judgment.
The Respondent further contends in its reply brief that TLs responsi-
bly direct their team members, though it does not except to the judge’s
failure to so find. We conclude that the Respondent did not properly
raise this issue before the Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1424
riod of time. The Respondent argues that TLs Pacheco,
Vang, Orn, Martinez, and Quinto create these rotation
schedules; that TLs Montes and Kang apply them daily;
and that former TL Vang, on occasion, decided to mod-
ify them. In so doing, the Respondent contends, TLs are
assigning employees using independent judgment and are
thus 2(11) supervisors.
The judge summarily found that TLs’ assignments of
employees are “per a routine,” and thus TLs do not as-
sign in a manner that demonstrates supervisory authority.
However, the judge failed to consider the question under
the current standards set forth in Oakwood Healthcare,
supra.14 Applying Oakwood, we also conclude that the
Respondent has not demonstrated supervisory status
based on TLs’ assignment of team members.15
First, the Respondent relies primarily on the testimony
of Production Manager Juarez and former TL Vang;
however, the judge reasonably discredited their testi-
mony and instead credited the testimony of several other
TLs about their own functions and authority.16 As ex-
plained below, the TLs’ testimony, other than Vang’s
discredited statements, supports a conclusion that TLs do
not assign team members using independent judgment.
As described, the various tasks or workstations
through which team members (and at least some TLs)
rotate are predetermined, as are the employees’ periodic
assignments to work on each. Thus, assuming arguendo
that assigning team members to workstations represents
the assignment of “significant overall tasks,” and there-
fore that TLs possess authority to assign within the
meaning of Section 2(11),17 they do not use independent

14 Although the Respondent contends that the case should be re-
manded to the judge for analysis under Oakwood, we find such a re-
mand unnecessary. The parties fully presented their evidence related to
TLs’ alleged authority to assign team members using independent
judgment, and the judge made the necessary factual and credibility
determinations. The Board itself can apply the relevant law to the
established facts, without the additional delay inherent in a remand.
15 As the party alleging supervisory status, the Respondent bears the
burden of proof, and any lack of evidence in the record is construed
against it. Oakwood, 348 NLRB at 694.
16 See fn. 2, above. Hendrick, rather than Juarez, was the Respon-
dent’s main witness regarding Montes’ authority. The judge did not
expressly credit or discredit Hendrick’s testimony on this issue, but he
expressly credited Montes with regard to her authority (or lack thereof).
Thus, to the extent that Hendrick’s testimony conflicts with Montes’,
we conclude that the judge discredited Hendrick. The Respondent also
relies on the job description it circulated in seeking to replace Montes
after her suspension. Hendrick’s assertion that Montes performed all of
the duties listed on the job description is contradicted by Montes’ more
specific testimony. In any event, employer-prepared job descriptions
are not controlling on the issue of supervisory authority; instead, the
Board looks to the authority actually possessed and the work actually
performed by the alleged supervisor. Oakwood, 348 NLRB at 690 fn.
24.
17 Oakwood, 348 NLRB at 689.
judgment in exercising that authority because TLs do not
take into account the relative skills of team members in
making those assignments.18 On the contrary, the rota-
tion of team members through workstations or tasks ac-
cording to a predetermined schedule exemplifies judg-
ment that is not independent because it is “dictated or
controlled by detailed instructions.”19
Further, the Respondent did not prove that TLs create
rotation schedules other than sporadically. Montes
credibly testified that she merely continued to apply a
rotation schedule established before she became a TL.
Pacheco testified that she writes out the daily rotation at
most a couple of times a month, when her group leader is
absent; her regular responsibility is merely to review the
schedule and apprise team members of its contents.20 In
any event, Pacheco and half her team start work each
morning an hour later than the other half of the team.
The early-arriving team members begin work without
awaiting Pacheco’s instructions, demonstrating that their
daily assignments within the rotation are not dependent
on any independent decision by Pacheco.
Vang testified that, as a TL, he could modify the rota-
tion schedule when production goals were met early, to
allow certain employees additional training on certain
tasks. Even assuming that this testimony were credited
and that modifying work assignments for training pur-
poses may demonstrate 2(11) authority, the evidence
fails to demonstrate the frequency of such modifications
or their reliance on Vang’s independent judgment.21
In sum, the Respondent has not shown that TLs exer-
cise independent judgment in creating, applying, or
modifying rotation schedules. See Alstyle Apparel, 351
NLRB 1287, 1287, 1303–1304 (2007) (finding no su-
pervisory status where employer failed to show that shift
leaders exercise independent judgment in assigning crew
members to machines for each shift). For these reasons,
we conclude that TLs do not possess supervisory author-
ity to assign.
b. Discipline
The Respondent contends that TLs also have supervi-
sory authority to discipline team members. We agree
with the judge’s rejection of this argument. As the judge
found, TLs’ involvement in the issuance of attendance-
based warning forms was clerical and nondiscretionary.

18 Id. at 693.
19 Id.
20 The record does not support the Respondent’s assertion that
Pacheco admitted to using independent judgment in creating rotation
schedules for her department.
21 The Respondent’s assertions that other TLs either assigned work
based on a rotation schedule or created a rotation schedule rest entirely
on Juarez’ discredited testimony, as the TLs at issue did not testify.
PACIFIC COAST M.S. INDUSTRIES 1425
Thus, we address in detail only TLs’ authority with re-
gard to nonattendance discipline.
The Respondent documented employee conduct (both
positive and negative) that was not related to attendance
on “employee observation forms.” TLs could initiate
such forms, as could admitted supervisors and managers,
but some evidence suggests that team members could do
so as well, and certainly team members could (and did)
initiate preparation of observation forms by informing a
manager of conduct to be documented. TLs sometimes
signed such forms, but only in conjunction with addi-
tional signatures by group leaders or managers.22 TLs
occasionally delivered the completed forms to team
members, though group leaders often carried out this
task. The Respondent asserts that, in presenting the
forms to team members, TLs warned them that they
could be subject to further discipline if they continued
the conduct at issue.
The judge found that the observation forms were pri-
marily “avuncular” counseling rather than discipline.
We do not rely on this characterization. However, the
Respondent has failed to show that that any observation
form issued by a TL ever affected a team member’s
working conditions or job status or tenure. It has like-
wise failed to show that any observation form issued by a
TL could be the basis for future disciplinary action if the
observed conduct continued. Montes credibly testified
that she was not empowered to tell team members that
continuation of their documented conduct could subject
them to further disciplinary action. We therefore con-
clude that TLs’ involvement in the Respondent’s system
of issuing employee observation forms does not demon-
strate supervisory authority to discipline.23

22 The record contains only one observation form signed by a TL.
This form documents that team member Hector Ocequeda was seen
driving his forklift too fast and not wearing his seatbelt. Montes signed
this form, along with Ocequeda himself, group leader Aldo Montes,
manager Brian Bellamy, and Human Resources Manager Dawn Tipton.
For the reasons given by the judge, we agree that Montes did not initi-
ate this form.
23 See Ken-Crest Services, 335 NRLB 777, 777–778 (2001); Vencor
Hospital–Los Angeles, 328 NLRB 1136, 1139 (1999). See generally
Jochims v. NLRB, 480 F.3d 1161, 1170 (D.C. Cir. 2007) (Under Board
law, “the issuance of written warnings that do not alone affect job
status or tenure do not constitute supervisory authority. . . . [F]or the
issuance of reprimands or warnings to constitute statutory supervisory
authority, the warning must not only initiate, or be considered in deter-
mining future disciplinary action, but also it must be the basis of later
personnel action without independent investigation or review by other
supervisors.”). Member Hayes does not rely on the cited precedent to
the extent it suggests that the issuance of oral warnings cannot itself be
evidence of supervisory authority or that the mere fact of review by
others negates that authority.
c. Effective recommendation to hire
The Respondent alleges that TLs effectively recom-
mend hiring, in that they evaluate temporary employees
regarding their qualifications for hire as regular employ-
ees.24 The record contains a 90-day review of temporary
employee Romeo Panopio completed by TL Pacheco.
The review form seeks information about Panopio’s
compliance with safety rules, quality and quantity of
work, and teamwork, as well as general comments. In
addition, the form includes a “final comments” section in
which the reviewing individual is to “[m]ake notes [as]
to why team member should or should not be hired in the
future,” and it gives the reviewer an opportunity to indi-
cate, by circling “yes” or “no,” whether the reviewed
employee should be hired. On Panopio’s form, “yes” is
circled, and Pacheco notes that Panopio is better suited
for hire in a position to which he was recently assigned.
No other reviews of temporary employees are in the re-
cord. Montes acknowledged that she had evaluated tem-
porary employees “to a point,” but denied having rec-
ommended whether or not they should be hired.
The judge found that TLs review the work and skills of
temporary employees, but that these reviews do not
demonstrate supervisory authority because they merely
provide factual information based on TLs’ own observa-
tions. The judge further distinguished Pacheco from
other TLs, finding that her opinion was understandably
given more weight than those of other TLs because,
unlike them, she had previously served as the Respon-
dent’s production manager.
We agree with the judge that the evidence does not
show that TLs possess supervisory authority with regard
to hiring, but we analyze the issue differently. In our
view, the judge’s credibility determinations resolve the
matter. Montes, whose testimony was credited, stated
that her reviews of temporary employees stopped short of
recommending for or against their hire as regular em-
ployees. Thus, at least with regard to Montes, the cred-
ited evidence does not establish that she made hiring
recommendations.
Pacheco is the only TL who has been shown to have
made a recommendation regarding hiring. The Respon-
dent’s only evidence that Pacheco’s recommendation
was “effective” is Juarez’ testimony that Panopio was
hired based on this recommendation. As previously
stated, however, the judge generally discredited Juarez’
testimony on supervisory authority. Pacheco testified at
the hearing but was not asked about her recommendation

24 All team members work as temporary employees for a period of
time (though the record is not clear how long) before being considered
for hire as regular employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1426
regarding Panopio or more generally about the weight
her recommendations on such forms were given.25 The
Respondent therefore has not shown that TLs possess the
authority to effectively recommend hiring.26
In sum, based on the foregoing, we conclude that the
Respondent has failed to meet its burden of proving that
the TLs possessed any of the 2(11) indicia of supervisory
authority. We therefore find they were statutory employ-
ees entitled to the full protection and rights guaranteed
by Section 7 of the Act.
2. Election issues
The current tally of ballots shows 33 votes in favor of
the Union, 28 votes against it, and 9 remaining chal-
lenged ballots, which are determinative. All challenged
ballots were cast by TLs and turn on our decision regard-
ing their supervisory status, with Montes’ ballot addi-
tionally dependent on the lawfulness of her discharge.
Pursuant to our findings, above, that TLs are statutory
employees, not supervisors, and that Montes was dis-
charged unlawfully for her union activity, we conclude
that all nine challenged voters were eligible to vote.
Thus, we will direct the Regional Director to open and
count these ballots and to prepare a revised tally of bal-
lots.
Also pending before us are election objections by both
the Respondent and the Union. In cases like this, admin-
istrative efficiency is often best served by resolving all
pending issues together. Nevertheless, in some cases, we
have departed from that procedure, finding it more effi-
cient to resolve challenged ballots before addressing ob-
jections that may be mooted because the revised tally of
ballots would show that the objecting party has won.27 In
this case, a puzzling factual finding regarding two of the
Respondent’s objections would require remand to the
judge, as we explain below. If we did remand, and the
Respondent’s objections were subsequently mooted by
the revised tally of ballots, the remand would have de-
layed resolution of the case needlessly. In these circum-
stances, we find that administrative efficiency calls for

25 In the absence of credible evidence that Pacheco’s recommenda-
tion was given any weight, we need not rely on the judge’s finding that
her managerial experience gave her recommendation extra weight.
26 We need not rely on the judge’s conclusion that the reviews did
not involve independent judgment because they were merely factual
reporting of TLs’ own impressions. We also do not rely on the judge’s
finding that Montes did not review temporary employees during her last
year as a TL; although the record could be clearer, we read Montes’
testimony that her group leader, not she, reviewed employees’ work
during that period as referring to already-hired team members’ annual
evaluations, rather than pre-hire reviews of temporary employees.
27 See, e.g., Columbia College, 346 NLRB 726, 726 fn. 2, 730
(2006); Laneco Construction Systems, 339 NLRB 1048, 1051 (2003).
preparation of a revised tally of ballots before analysis of
the objections.
In its Objections 6 and 8, the Respondent objects that
the election was held with two observers representing the
Union, but with only one observer representing the Re-
spondent. The judge found that the parties discussed this
imbalance at the morning preelection conference, and the
Board agent offered the Respondent an opportunity to
obtain a second observer. The judge found that, although
the record did not reflect exactly when this offer was
made, the Respondent was given an adequate opportunity
to obtain a second observer, and thus its failure to do so
constituted a waiver of its objection to the observer im-
balance. In our view, however, the Respondent cannot
have waived its right to an equal number of observers
unless it was offered—and it refused—a reasonable op-
portunity to obtain a second observer, a determination
that depends on when the offer was made.28
The Union’s witnesses testified that the Respondent
did not object to the observer imbalance during the
preelection conference—testimony that the judge implic-
itly but unmistakably discredited in finding that the par-
ties discussed the observer imbalance. In contrast,
Hendrick and Vang testified for the Respondent that the
Board agent’s offer of a second Respondent observer was
made only 5–10 minutes before the polls were to open,
and that by then it was too late to find and train an addi-
tional observer. In light of the judge’s discrediting of the
Union’s testimony, Hendrick’s and Vang’s testimony
stands apparently unrebutted. Nonetheless, the judge
expressly found that the record does not reflect when the
Board agent made the offer of a second Respondent ob-
server.
The judge may have intended to discredit Hendrick’s
and Vang’s testimony on the timing of the Board agent’s
offer (despite having apparently credited their testimony
on the fact that the offer was made). And Board law is
clear that testimony need not be credited merely because
it is unrebutted.29 Given the state of the evidence, how-
ever, we cannot ascertain whether the judge implicitly
discredited the unrebutted testimony or relied on some
other rationale for his conclusion that the record did not
reflect exactly when the offer was made. We thus are

28 Compare Best Products Co., 269 NLRB 578 (1984) (overruling
objection where employer declined opportunity, 15–30 minutes before
polls opened, to provide a second observer where union had two), enfd.
765 F.2d 903 (9th Cir. 1985), with Asplundh Tree Expert Co., 283
NLRB 1 (1987) (union representative was not offered option of obtain-
ing additional observer to match employer’s observers, only of object-
ing to unequal numbers after election).
29 See, e.g., Cherry Hill Convalescent Center, 309 NLRB 518, 518
fn. 2, 520–521 (1992) (adopting judge’s discrediting of uncontradicted
testimony, based on witness’s evasive and obstructionist demeanor).
PACIFIC COAST M.S. INDUSTRIES 1427
unable to resolve Respondent’s Objections 6 and 8 in the
absence of clarification by the judge as to at least ap-
proximately when the offer was made, and the judge’s
basis for that finding.
As explained above, however, we direct the Region to
open and count the challenged ballots first, and to then
address only the objections that remain relevant based on
the revised tally of ballots. The Direction below specifi-
cally provides for the possible contingencies.
ORDER
The Respondent, Pacific Coast M.S. Industries Co.,
Ltd., Tracy, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion activities, sympathies, and desires or the union activi-
ties, sympathies, and desires of other employees.
(b) Telling employees they cannot talk about organiz-
ing a labor organization in circumstances in which doing
so does not interfere with their work.
(c) Telling employees that it will close or move the
plant to another State or country if the employees choose
union representation; telling employees that unionization
is a futile act; and telling employees that striking will
result in their losing their jobs.
(d) Granting wage increases for the purpose of deter-
ring employees from voting in favor of union representa-
tion in an NLRB election.
(e) Suspending, discharging, or otherwise disciplining
employees because they engage in activity protected by
Section 7 of the Act, including organizing on behalf of
any labor union.
(f) 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 from the date of this Order, offer
Felicia Montes full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Felicia Montes whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her.
(c) Within 14 days from the date of this Order, remove
from its files any reference to Montes’ unlawful suspen-
sion or discharge, and within 3 days thereafter notify her
in writing that this has been done and that the suspension
and discharge will not be used against her in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its plant in Tracy, California, copies of the attached no-
tice marked “Appendix.”30 Copies of the notice, on
forms provided by the Regional Director for Region 32,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent (in English
and any other foreign language deemed appropriate by
the Regional Director) and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted.31 Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since late April 2006.32
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that Case 32–RC–5443 be
severed and, depending upon the outcome of the revised

30 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.
31 We reject the Union’s arguments for notice-posting terms that dif-
fer from standard terms under extant law. Regarding the Union’s re-
quest that the Respondent should be required to post the notice on its
intranet, Chairman Liebman adheres to her view that electronic posting
need not be raised in the merits hearing. See Wal-Mart Stores, 348
NLRB 833, 833 fn. 3 (2006). She acknowledges, however, that extant
law is to the contrary, and she concurs in applying that law for institu-
tional reasons. Members Pearce and Hayes did not participate in the
decision in Wal-Mart Stores and express no view at this time regarding
the appropriateness of intranet posting of remedial notices.
32 The judge’s recommended Order contained a contingent notice-
mailing date of May 3, 2006, apparently based on the date of Montes’
suspension. It is apparent from the record that at least some of the
interrogations occurring during the investigation of Montes preceded
her suspension. While they cannot be dated with precision, the record
establishes that these earliest unfair labor practices occurred in late
April. We have modified the date accordingly. See Excel Container,
325 NLRB 17 (1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1428
tally of ballots as described below, either transferred to
the Board or remanded to Administrative Law Judge Jay
R. Pollack for further action consistent with this Deci-
sion, Order, and Direction. If remanded to the judge, the
judge shall prepare a supplemental decision limited to the
issue of Respondent’s Objections 6 and 8, specifically
reconciling the testimony regarding the timing during the
preelection conference of the parties’ discussion about
the unequal number of observers. Such supplemental
decision shall set forth findings of fact and a recommen-
dation to sustain or overrule the Respondent’s Objections
6 and 8. Following service of the supplemental decision
on the parties, the provisions of Section 102.46 of the
Board’s Rules and Regulations shall be applicable.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
32 shall, within 14 days from the date of this Decision,
Order, and Direction, open and count the ballots of
Edwin Bagalso, Lue Vang, Angel Martinez, Oscar San-
chez, Keing Orn, Phanma Kang, Anna Pacheco, Israel
Quinto, and Felicia Montes. The Regional Director shall
then prepare and serve upon the parties a revised tally of
ballots. If the revised tally of ballots shows that the Peti-
tioner has received a majority of the valid ballots cast,
the Petitioner’s objections will be moot and Case 32–
RC–5443 shall be remanded to the administrative law
judge for the factual determinations described above re-
garding Respondent’s Objections 6 and 8. If, however,
the revised tally of ballots shows that the Petitioner has
not received a majority of the ballots cast, then the Re-
gional Director shall promptly transfer Case 32–RC–
5443 back to the Board for further proceedings regarding
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT coercively interrogate you about your
own or other employees’ union activities, sympathies,
and desires.
WE WILL NOT tell you that you cannot talk about orga-
nizing a labor organization in circumstances in which
doing so does not interfere with your work.
WE WILL NOT tell you that the Company will close or
move the plant to another State or country if you choose
union representation; WE WILL NOT tell you that unioniza-
tion is a futile act; and WE WILL NOT tell you that striking
will result in your losing your job.
WE WILL NOT grant wage increases for the purpose of
deterring you from voting in favor of representation by
General Teamsters, Local 439, International Brotherhood
of Teamsters, or any other union in an NLRB election.
WE WILL NOT suspend, discharge, or otherwise disci-
pline you because you engage in activity protected by
Federal labor law, including organizing on behalf of any
labor union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
guaranteed by Federal law as listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Felicia Montes full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges she previously enjoyed.
WE WILL make Felicia Montes whole for any loss of
earnings and other benefits suffered as a result of our
discrimination against her, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Felicia
Montes’ unlawful suspension or discharge, and WE WILL,
within 3 days thereafter, notify her in writing that this
has been done and that the suspension and discharge will
not be used against her in any way.
PACIFIC COAST M.S. INDUSTRIES CO., LTD.

Jennifer Benesis, for the General Counsel.
Thomas J. Dowdalls and Harry M. DeCourcy (Littler Mendel-
son), of Walnut Creek, California, and Mr. Richard
Hendrick of Pacific Coast M.S. Industries, for the Respon-
dent/Employer.
David A. Rosenfeld and Caren P. Sencer (Weinberg, Roger &
Rosenfeld), of Alameda, California, for the Charging
Party/Petitioner.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
consolidated case in trial at Oakland, California, on January 29,
PACIFIC COAST M.S. INDUSTRIES 1429
30, 31, and February 1 and 2, 2007. On July 19 and September
26, 2006,1 General Teamsters, Local 439, International Broth-
erhood of Teamsters (the Union or the Petitioner) filed the un-
fair labor practice charges alleging that Pacific Coast M.S. In-
dustries Co., Ltd.2 (Respondent or the Employer) committed
certain violations of the National Labor Relations Act (the Act).
On November 9, the Regional Director for Region 32 of the
National Labor Relations Board (the Board) issued a consoli-
dated complaint alleging Respondent had violated Section
8(a)(1) and (3) of the Act.
In addition, on June 20 the Union filed a representation peti-
tion in Case 32–RC–5443 seeking to represent a unit of Re-
spondent’s production and maintenance employees at its plant
in Tracy, California. An election was conducted on July 28,
pursuant to a Stipulated Election Agreement approved by the
Regional Director. The election remains unresolved due to
challenged ballots and objections. On December 1, the Re-
gional Director issued a Report on Challenged Ballots and Ob-
jections, ordering a hearing. By separate order, he consolidated
those matters with the unfair labor practice proceeding.
All parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, including
observation of the demeanor of the witnesses, and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing3
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent has been a California cor-
poration with its principal office and place of business located
in Tracy, California. It is a manufacturer of automotive parts.
In the course and conduct of its business, during its fiscal year
ending June 30, 2006, it purchased and received goods at its
Tracy facility valued in excess of $50,000 directly from sources
outside California. Accordingly, Respondent admits, and I find
it to be an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
In addition, Respondent admits the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act and I so
find.
Many of the issues raised in this case hinge upon whether
Respondent’s so-called “team leaders” are supervisors as de-
fined in Section 2(11) of the Act. A determination of that ulti-
mate fact will resolve certain threats alleged to have violated
Section 8(a)(1), whether alleged discriminatee Felicia Montes

1 All dates are 2006, unless otherwise noted.
2 On the first day of hearing, Respondent’s counsel requested their
answer be amended to reflect the Respondent's correct name is Pacific
Coast MS, Industries Company, Limited, that request was granted.
3 The credibility resolutions herein have been derived from a review of
the entire testimonial record and exhibits, with due regard for the logic of
probability, the demeanor of the witnesses, and the teachings of NLRB v.
Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those witnesses testi-
fying in contradiction to the findings herein, their testimony has been
discredited, either as having been in conflict with credited documentary or
testimonial evidence, or because it was in and of itself incredible and
unworthy of belief.
is an employee protected by Section 7, and whether team lead-
ers were eligible voters. Other issues include objections to the
manner in which the election was conducted—were the labora-
tory conditions for a fair election somehow compromised, ei-
ther by the voters, the Board agent conducting the election or
even by some unknown third party?
II. RESPONDENT’S ORGANIZATION
A. Overview
As noted, Respondent is a California corporation. It is, how-
ever, the subsidiary of at least one and apparently two, Japanese
corporations, Maruyasu Industries and Sekiso Corporation.
The Tracy operation manufactures parts (mostly transmission,
brake and fuel lines, and seal tubing) for Toyota automobiles
and trucks. Much of its product is delivered to the New United
Motor Manufacturing, Inc. (NUMMI) plant in Fremont, Cali-
fornia, located about 50 miles west. NUMMI is a joint venture
of Toyota and General Motors. Respondent has recently begun
manufacturing parts for another Toyota line, Hino Trucks. It
also sends its products to Toyota Canada and Toyota Mexico.
The Tracy operation consists of three plants, the serially
named plants 1, 2, and 3. Plant 1 houses the truck department,
the passenger department (including end forming), the Hino
department, the quality assurance department, the shipping and
receiving department, and the tool room. The Company’s main
office is also located in plant 1. The vice president and the
human resources staff are officed there. The blow mill and
asphalt departments occupy plant 2, while plant 3 is for the
stamping and heat shrink processes.
During the period in question, mid-2006, the executive in
charge of the Tracy facility was Corporate Vice President Rich-
ard Hendrick. Hendrick was the individual who reported to the
parent corporations in Japan. Respondent’s corporate president
was Singi Yamada, who also served as president of Maruyasu
Industries. He is located in Okasaki, Japan. Reporting to
Hendrick were Ryan Scharffenberg, the assistant general man-
ager, and Dawn Tipton, the HR manager, as well as the manag-
ers for accounting, quality assurance, and the tool room.
Beneath the department managers on the organizational lay-
out are the group leaders and beneath them are the team lead-
ers. That structure holds true for most of the departments, al-
though there are some which did not have a group leader. Both
classifications comprise hourly, not salaried, employees. As far
as this case is concerned, the team leaders’ status plays in a
number of directions. Each of the challenged ballots was cast
by a team leader. Respondent seeks to deny them the right to
vote, asserting they are statutory supervisors. One, Lue Vang,
served as Respondent’s observer during the election, despite the
fact that supervisors are not supposed to perform that func-
tion—see both the Stipulated Election Agreement and Board
law generally. Others are the alleged victims of otherwise
unlawful threats under Section 8(a)(1) and one, Felicia Montes,
is the alleged discriminatee whom Respondent essentially
agrees was fired because of her perceived union activity. There
is some conflicting evidence regarding the team leaders’ pow-
ers and the significance of their authority. Much of this is the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1430
traditional divide between factory foremen and lead persons or
straw bosses.
B. Team Leaders
First, it is entirely clear that none of the team leaders pos-
sesses any of the criteria of Section 2(11) of the Act defining a
statutory supervisor, except possibly the last, to “effectively
recommend” certain action. Section 2(11) states a supervisor
must: “[have the] authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge, as-
sign, reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to rec-
ommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.” None,
by himself or herself, had the authority to hire, transfer, sus-
pend, lay off, recall, promote, discharge, assign,4 reward, adjust
grievances, or even discipline team members. Indeed, that void
alone may be construed as not supporting Respondent’s conten-
tion. Elmhurst Extended Care Facilities, 329 NLRB 535, 536
fn. 8 (1999).
There is some conflicting evidence regarding the extent of
their involvement in daily work assignments, attendance-related
discipline and the effectiveness of recommendations in the
nature of hiring or disciplining or their participation in that
process.
Respondent utilizes two forms which play a role in the disci-
plinary process. One, despite its name, “warning,” is the me-
chanical application of its attendance policy under which tar-
dies and absences accumulate points leading to termination.
This is nearly entirely administered by the human resources
department. Neither the group leaders nor the team leaders
have any discretionary role to play, although they may be called
upon to deliver the warning notice to the offending employee.
For the most part, the group leader, not the team leader, handles
that chore. A team leader might be asked to perform that task
in the group leader’s absence or if there is no group leader for
that component of the factory. Nevertheless, neither the team
leaders nor the group leaders use any independent discretion in
that process.
There are also time-punching questions which arise on a fre-
quent basis. Respondent utilizes a computer check-in system
which is administered by the HR department. If an employee
fails to scan his or her card, the failure will trigger an inquiry
the following day. The team leader may be asked to find out or
confirm whether the employee’s time record needs to be cor-
rected. This duty is nothing more than assisting with the cleri-
cal record and does not involve the use of independent judg-
ment. It is not helpful in determining the supervisory status of
the employee. The same is true for punching errors caught on
the day of the mistake.

4 “Assign” as used in the statute does not refer to daily work assign-
ments, but to job placement. Daily assignments are more closely akin
to the “responsibly direct” [employees] portion of the statute. Even so,
where the assignments are per a routine, as seen here, it is not evidence
of 2(11) supervisory status. Sears, Roebuck & Co., 292 NLRB 753,
754 (1989).
Although out of logical order because it is a secondary, not
statutory, indicium of supervisory status, a similar observation
can be made about the training or mentoring a team leader may
provide to team members or prospective team members. For
example, Respondent usually hires employees from a temp
agency (Adecco, according to R. Exh. 70) which has sent the
prospective employee to Respondent for work. The training
required of a new employee or an in-house transfer is subject to
the same analysis as timekeeping. Showing a fellow employee
how to do a particular job or run a specific machine is not evi-
dence of supervisory power. Indeed, it is common, according
to one of the team members, for team members to serve as
trainers. See the testimony of Lorenzo Castro.5 Likewise, the
temps come with their own timesheet from the temp agency
and someone needs to verify that they worked the hours
claimed. That is commonly done by a responsible employee
approving the temp agency’s timecard. Again, this is nothing
more than the clerical function of timekeeping performed by
that trusted employee and is not evidence of supervisory status.
The second form utilized in the disciplinary system is called
an “Employee Observation Sheet.” This is a more open-ended
form, for it requires factual explication. It is used in both the
discipline and reward tracks. There is testimony that anyone
may fill out such a sheet memorializing whatever they observed
about another person, good or bad. One observation sheet re-
ceived in evidence was written by Production Manager Brian
Juarez but initiated by team members who had complained
about Group Leader Jose Quinones. They had told Juarez that
Quinones had failed to provide team members a lunchbreak
after 10 hours’ work. Juarez recorded on the sheet that he told
Quinones that state law required such breaks and gave addi-
tional advice regarding the need and frequency of breaks. An-
other concerned Quinones’ negative approach to Team Leader
(and former manager) Anna Pacheco and admonished him to
work positively with her.
More frequently, however, the observation sheets are filled
out by someone in the chain of command targeting a team
member for some shortcoming. Usually they do not end up as
traditional discipline. As with the two directed to Quinones,
they are more often used to induce improvement. As such, they
are generally more avuncular than emphatic. This is more in
the nature of counseling than discipline. Counseling is, of
course, not evidence of 2(11) authority. Ken-Crest Services,
335 NLRB 777 (2001).
There is only one observation sheet in the record which was
disciplinary and served as an official warning. Even so, it was
offered only in support of the contention that Felicia Montes,
the alleged discriminatee, was a statutory supervisor. It was
directed to team member Hector Ocequeda for neglecting to
wear his seat belt while driving a forklift. Its application to
Montes is discussed later in the decision.
Given the paucity of evidence supporting Respondent’s con-
tention that the power to fill out observation sheets is evidence

5 Castro testified at two points during the hearing. In his second ap-
pearance, found in the fifth volume, the transcript misidentifies him as
Lorenzo Cortero. The transcript is hereby corrected to reflect his cor-
rect name.
PACIFIC COAST M.S. INDUSTRIES 1431
of supervisory authority, I am unable to accept Respondent’s
argument on the issue. It is true that the sheets may be used for
disciplinary purposes, but it seems that any employee may trig-
ger one, whether they physically write it or not. Witness the
employees’ complaint about breaks that Juarez picked up and
followed. Furthermore, there is no observation sheet in the
record signed by a team leader. Indeed, Montes testified that as
a team leader if she wrote an observation sheet on a team mem-
ber she was not empowered to tell the employee he would be
subject to further discipline.
There is some testimony that team leaders are involved in the
evaluation of temps as they are being considered for hire as
permanent employees. For example, Montes testified that
while serving as a team leader she has evaluated the temps on a
60- or 90-day basis. At the same time, however, she said she
did not make any recommendation concerning their hire. As
for the relevant timeframe, she testified she did no evaluations
of temps between May 2005 and May 2006. During that time-
frame the duty was performed by her group leader, Aldo Mon-
tes.
Production Manager Brian Juarez also gave some testimony
about the manner in which temps became full-time employees.
He asserted that team leaders regularly made recommendations
concerning hiring the temps as they completed their 60- or 90-
day reviews. He pointed to Respondent’s Exhibit 72, a 90-day
review form for a temp named Romeo Panopio dated June 9,
2006. The form asks the trainer to comment on four areas for
evaluation: safety, quality of work, quantity of work, and
teamwork. There are also spaces for both general comments
and a final comment. At the form’s end, the evaluator is asked
to circle “yes” or “no” as a recommendation for hire. In this
case, Team Leader Anna Pacheco followed all those instruc-
tions and gave a neutrally-worded evaluation, finding Pano-
pio’s performance to be acceptable in three of the categories
and needing improvement in the fourth. She concluded with
the remark that the position the applicant had been assigned to
since June (a matter of only 9 days) is better suited to him. She
circled the “yes” choice on the hire recommendation. Juarez
says Panopio was hired based on this evaluation. Respondent
cites that recommendation as evidence of the evaluator’s super-
visory authority.
It should be noted, however, that Pacheco’s assessment dif-
fers in quality from the other team leaders. She is a former
production manager for plant 2 who had been demoted. Cer-
tainly her experience (14 years with the Company) and proba-
bly her managerial skills in evaluating prospective employees
exceed those of other team leaders who do not have her back-
ground. No doubt Anna Pacheco’s assessment carries greater
weight than that of a lesser-experienced team leader who is just
beginning to rise in the Company.
Pacheco had been called by the General Counsel earlier in
the hearing and was not asked about either this recommenda-
tion or the weight such evaluations normally have.
While Respondent sees an inconsistency here between
Pacheco and Felicia Montes’s testimony, I do not. All Felicia
Montes is really saying is that she was the person closest to the
prospective hire and was in a position to provide factual infor-
mation to the hiring authorities who actually made the decision.
Indeed, that is a normal duty of a lead person and is exactly
what Pacheco did in Panopio’s case. Lead employees in most
circumstances are trusted employees. Their observations are
valued. Even so, their observations do not amount to “effec-
tively recommending” the hire of anyone. They simply provide
information which is taken into account by the hiring authority.
Indeed, under Respondent’s hierarchical system, it is doubtful
that group leaders have much discretionary input on such deci-
sions, either. Respondent, by utilizing a temp agency to find
qualified applicants has delegated the initial contact to an inde-
pendent company. That agency is the one which does the
background check and the suitability analysis. That leaves only
simple observation to the team leaders and group leaders. Pro-
ductivity can be measured objectively from that point. The
recommendation choices at the bottom of the evaluation form
are little more than the tail on the dog. While they are the opin-
ions of the evaluator, they do not constitute the independent
judgment or the “effective” recommendation the statute con-
templates for 2(11) supervisor status. I conclude, therefore,
that the team leaders have no role involving independent judg-
ment in the hire of employees nor are their recommendations
“effective” as used in the statute. Their opinions are based on
factual observation, not on whether it is in the employer’s inter-
est to actually hire (or not hire) the employee. Williamette
Industries, 336 NLRB 743 (2001).6
Another area alleged to be proof of supervisory status is the
testimony that team leaders have the authority to grant or deny
time off requests. In this regard, there is a variety of reasons
for an employee to seek time off. The obvious one is the paid
vacation. In addition, there is so-called “convenience time,”
which is unpaid and, of course, emergency time off, also un-
paid.
Respondent utilizes a request form to be filled out and signed
and dated by the employee. It contains two approval signature
lines to be signed and dated by a “supervisor,” one of whom is
to check the “approved” or “denied” blanks. And, it is certainly
accurate to observe that team leaders have routinely signed the
forms, together with the group leader. Still, after the slips are
signed, the form is submitted to the HR department for review
and final approval. The record shows that the group or team
leaders first check to see what impact the employee’s absence
will have on the staffing level. That result is more important
with regard to convenience time, because those requests occur

6 See also the so-called “reportorial” cases discussing the fact that an
employee is not rendered a supervisor by the fact that he makes reports
about others. E.g., Vencor Hospital-Los Angeles, 328 NLRB 1136
(1999) (ability to issue oral warnings in itself does not demonstrate
supervisory authority); VIP Health Services v. NLRB, 164 F.3d 644,
648 (D.C. Cir. 1999) (mere reporting is insufficient to establish that
nurses effectively recommend discharge or discipline); Misericordia
Hospital Medical Center v. NLRB, 623 F.2d 808, 817 fn. 20 (2d Cir.
1980) (authority to do no more than orally counsel and reprimand em-
ployees is not supervisory). Accord: Waverly-Cedar Falls Health
Care, 297 NLRB 390, 392 (1989), enfd. 933 F.2d 626 (8th Cir. 1991);
and Ohio Masonic Home, 295 NLRB 390, 393–394 (1989). See also
Lynwood Health Care Center, Minnesota v. NLRB, 148 F.3d 1042,
1046 (8th Cir. 1998) (mere authority to effectively recommend warn-
ings that “have no tangible effect on [an employee’s] job status . . . is
not sufficient for supervisory status”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1432
on short notice and cannot be planned for as easily as vacation
time. Both the group and team leader are familiar with the
number of staff members required for particular stations and
can easily see whether the employee’s absence can be covered.
Curiously, the only slips which Respondent offered in evidence
show that the request was always approved whether the em-
ployee sought convenience time or vacation time. No denials
have been shown. Discretionary judgment here has not been
shown.
Sick time and emergency time are handled differently, di-
rectly through the HR department which reviews the requests
afterwards. Yet even the request forms covering convenience
and vacation times are reviewed by HR. For example, if the
employee has requested vacation time when his or her vacation
account is insufficient to cover it, HR will deny the request.
Whatever the power the team leaders have here, it is limited.
It is limited by the fact that the group leader and the department
manager have review authority over it in the first instance. In
addition, the HR department has final authority over the entire
process. It is clear that the team leaders are merely the persons
making a tentative decision with respect to such leave requests.
Employees’ paid vacations are nearly a matter of right. The
right to other kinds of absences is governed by a bureaucratic
procedure in which the team leader plays only a limited role,
one which the record shows is often bypassed in favor of the
group leader.
Considering the evidence on this issue as a whole, I find
without exception that the job classification of team leader does
not meet the definition of supervisor as defined by Section
2(11) of the Act. The true first line supervisor is the group
leader. I reach this conclusion primarily upon the testimony of
Montes, Pacheco, Bagalso, and some of Vang’s testimony. I
found that Vang’s testimony that was favorable to Respondent
was colored by his recent promotion. For example, Vang’s
testimony that since his promotion he reports daily to Juarez,
but never did so when he was a team leader, is compelling be-
cause Respondent’s current argument seems to argue that there
is hardly any difference between the team leaders and the ac-
knowledged group leaders’ supervisory authority. The same
can be said for Vang’s testimony that his former group leader
Frank Cordero never turned down any leave requests, suggest-
ing strongly that even group leaders follow routines designed to
get the decision before someone with actual authority. Fur-
thermore, I specifically discount the testimony of manager
Brian Juarez who was transparently promoting the team leaders
to powers greater than they possess.
See, for example, Juarez’ testimony concerning the people
who reported to him as production manager. It is entirely con-
trary to what Vang said.

Q. [BY MR. DOWDALLS]: Still talking about this time
period between April and July 2006, were there PCI em-
ployees who reported directly to you?
A. [WITNESS JUAREZ]: Yes, there was.
Q. And are you able to give me those individuals and
their job titles?
A. Yes, I can. Okay. I have a group leader, Frank
Cordero, Lue Vang is the team leader. And Keing Orn,
team leader. Jesse Ocequeda, group leader. Jose
Quinones, group leader. Anna Pacheco team leader, and
Vernon Kiawe, team leader.
Q. So, these are the seven employees at PCI who re-
ported directly to you?
A. Yes.

Vang had no reason to understand that the reporting line of
authority would have any bearing on supervisory status. He
accurately testified that he did not begin reporting to Juarez
until he became a group leader. Juarez, who understands the
issue, clearly colored the situation to fit with Respondent’s
current argument. Juarez’ testimony on supervisory authority
cannot be relied upon.
I have also carefully gone through the secondary indicia of
supervisory authority supposedly granted each of these team
leaders. I found it telling that none of their supposedly discre-
tionary powers really exist. Moreover, Respondent pointed to
no structural differences, such as wage differentials or manage-
rial privileges. Indeed, there is no evidence that team leaders
have ever been told that they have supervisory authority. That
absence of notification is certainly evidence that they have no
such authority. Volair Contractors, 341 NLRB 673, 675
(2004). It is true that on occasion some have been asked to
travel for training or to work with NUMMI, but this says noth-
ing about their daily duties, which are entirely routine in nature.
Even where a team leader is the only person with any authority,
such as Keing Orn during that time frame (team leader on the
night shift) and leading a group of 8–10 team members, there is
no reason to think his authority became greater simply because
he was “in charge.” The factory operates in a repetitive man-
ner. No discretionary decisions need to be made until a consul-
tation with the group leader could be had during their shift
overlap. Even Juarez’ testimony makes it clear that nothing
non-routine was expected to occur at night: The team leader
(Orn) was “responsible to make sure production was completed
each day. He was responsible for overseeing quality and make
sure shipments were done, as well as training and other various
items.” These duties were not inconsistent with being a nonsu-
pervisory lead person.
Another night-shift team leader, Vernon Kaiawe, who ap-
pears to have only one subordinate, Veronica Arce, said this of
his night-time duties:

Q. [BY MS. BENESIS]: What are your job duties as a
team leader in the passenger department?
A. [WITNESS KAIAWE]: Informing, and I basically tell
Veronica or whoever works there at night what to do, and
I also once in a while fix machines.

As can be seen, Kaiawe’s duties, in addition to the produc-
tion work he does, are minimal. It hardly sounds in supervi-
sion. His assignment of work to the team member is dependent
on production needs. He also passes on to Arce the qality As-
surance dpartment’s daily assessment of her work from the
night before. Her success as an employee does not reflect on
his success as a team leader. He gets no reward for her excel-
lence; neither does he get down graded because of any of her
negative performance.
PACIFIC COAST M.S. INDUSTRIES 1433
The absence of anyone with 2(11) supervisory authority
from these shifts is essentially meaningless to Respondent’s
operation. Night-shift team leaders have no more authority
than do day-shift team leaders. All of them perform their duties
under routines which limit them from performing work involv-
ing independent judgment. Sears, Roebuck & Co., 304 NLRB
193 (1991).
Therefore, I have no hesitancy in finding that team leaders
are employees entitled to the protection of Section 7 of the Act.
III. INTERFERENCE, RESTRAINT, AND COERCION
A. The Wage Increase
On June 29, the Regional Director approved the election
stipulation, setting the representation election in Case 32–RC–
5443 for July 28. Both Respondent’s counsel and the Union’s
counsel had signed the agreement the day before on June 28.
On June 30, in a series of meetings with the employees, Vice
President Hendrick announced an across-the-board wage in-
crease of 26 cents per hour. At the same time he announced a
new safety program and a contest for a cash bonus. Insofar as
the wage increase was concerned, Hendrick followed a script
which had been prepared for him by a labor consultant. The
script is set forth in Respondent’s Exhibit 55. It is not neces-
sary to describe it in detail. The employees had not had a wage
increase since January 2003, although there had been grants of
small yearend bonuses.
Hendrick told the employees that in December 2005, he had
told them that raises would come when the Company was prof-
itable, and that toward the end of the company fiscal year (June
30), he would be able to determine profitability. If the Com-
pany was profitable, he would seek a wage increase from head-
quarters in Japan. He then told them that the Company had,
indeed, become profitable and that he had persuaded the Japa-
nese managers to grant the 26-cent increase.
At the hearing Hendrick testified that the plant had shown
profits in January, February, March, April, and May. As a
result, he had proposed the wage increase on June 5 with Presi-
dent Yamada. At the same time, he acknowledged that the
fiscal year numbers would not become finalized until a month
or so after June 30, because the accounting staff needed several
weeks to gather and check the outstanding figures. Neverthe-
less, he explained, he had a good idea how things were going
due to the monthly “first look” meetings he held with the mana-
gerial staff. Those took place on the second or third workday
of each month. From those, he said he was confident of a fiscal
year’s profitability, so he made the June 5 recommendation.
On April 21, however, Hendrick had become aware of the un-
ion organizing and on May 3 had suspended Felicia Montes for
union organizing. The very next day a Sekiso corporate senior
vice president, Yazawa, arrived in Tracy for a 2-day visit.
Hendrick told him about Montes’s union activity and the action
Respondent was taking concerning it.
Hendrick began preparing his recommendation sometime in
mid-May, although one draft bears a May 30 date. The pro-
posal itself cites the employees’ morale as an issue. “Although
employee morale has been OK, PCI has learned that some em-
ployees have discussed the possibility of union representation.”
This language understates the situation, for he well knew that
the employees had proceeded past the “discussion” point.
In any event, he recommended a two-phase wage increase.
The first would be a 30-cent increase beginning July 1. The
second phase would be 22 cents, beginning January 1, 2007.
He estimated the first phase would cost $4800 per month. The
second addition would result in a monthly payroll increase in
January 2007 to $8320 over the rate as it stood in June. Even-
tually, the Company granted only the 26-cent raise noted above.
That amounted to a monthly payroll bump of $4457, $343 less
per month than Hendrick proposed.
From this, it can readily be seen that Respondent had made
no decision whatsoever concerning either the raise itself or the
amount of the raise at the time the petition was filed. And, of
course, it had not made that decision prior to the employees’
commencement of their union activity. In fact, as it acknowl-
edges, the decision to grant the increase was a direct response
to the union organizing. Beyond that, the timing occurs in tan-
dem with the setting of the day for the election.
With respect to the grant of benefits while a representation
election is concerned, in Lampi, L.L.C., 322 NLRB 502 (1996),
the Board reiterated the rule of law to be applied in timing
cases. There, the Board, quoting itself, said:

It is well established that the mere grant of benefits during the
critical period is not, per se, grounds for setting aside an elec-
tion. Rather, the critical inquiry is whether the benefits were
granted for the purpose of influencing the employees' vote in
the election and were of a type reasonably calculated to have
that effect. NLRB v. Exchange Parts Co., 375 U.S. 405
(1964). As a general rule, an employer's legal duty in deciding
whether to grant benefits while a representation proceeding is
pending is to decide that question precisely as it would if the
union were not on the scene. R. Dalkin, supra, quoting Red
Express, 268 NLRB 1154, 1155 (1984). In determining
whether a grant of benefits is objectionable, the Board has
drawn the inference that benefits granted during the critical
period are coercive, but it has allowed the employer to rebut
the inference by coming forward with an explanation, other
than a pending election, for the timing of the grant or an-
nouncement of such benefits. Uarco Inc., 216 NLRB 1, 2
(1974). See, e.g., Singer Co., 199 NLRB 1195 (1972).

And, in Waste Management of Palm Beach, 329 NLRB 198
(1999), the Board cited the controlling law relating to the tim-
ing of the grant. It said:

The Board has held that benefits granted during an election
campaign are not unlawful if the employer shows that its ac-
tion was governed by factors other than the pending election.
The employer can meet its burden by showing the benefits
granted were part of an already established company policy
and the employer did not deviate from that policy upon the
advent of the union. American Sunroof Corp., 248 NLRB
748, 748–749 (1980), modified on other grounds 667 F.2d 20
(6th Cir. 1981). But, an employer cannot time the announce-
ment of increased benefits to employees in order to dissuade
their union support. Reno Hilton, 319 NLRB 1154, 1154–
1155 (1995); Capitol EMI Music, 311 NLRB 997, 1012
(1993), enfd. 23 F.3d 399 (4th Cir. 1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1434
. . . .
On this record, we conclude, in agreement with the judge, that
the Respondent accelerated the announcement in order to dis-
courage union support. Therefore, we find that the an-
nouncement violated Section 8(a)(1) of the Act. Brooks
Bros., 261 NLRB 876, 883 (1982), enfd. 714 F.2d 111 (2d
Cir.); H-P Stores, Inc., 197 NLRB 361 (1972).

The rule is the same whether the Board is scrutinizing the
grant as an election objection (Lampi, L.L.C., supra), or an
unfair labor practice (Waste Management of Palm Beach, su-
pra; also Holly Farms Corp., 311 NLRB 273, 274 (1993), enfd.
48 F.3d 1360 (4th Cir. 1994);7 and Speco Corp., 298 NLRB
439 fn. 2 (1990). Therefore, for Respondent to defend the
complaint allegation that the grant here interfered with the em-
ployees’ Section 7 rights, it must rebut the inference that it was
granted to influence the election. I find that it has failed to do
so. Hendrick’s memo to headquarters recommending a raise
specifically references the union organizing. Furthermore,
Respondent’s own evidence shows that no raise had been con-
templated (aside from an inchoate hope uttered during the 2005
Christmas season) before Hendrick’s memo of May 30. Re-
spondent waited until the signing of the Stipulated Election
Agreement to announce it. And finally, its evidence concerning
profitability and a raise connected to profitability does not meet
the test. That was not a decision. It was merely Hendrick’s
supposedly fulfilling a promise to seek a raise in the event a
year’s profit was reached. Therefore, Respondent has failed to
demonstrate that it had crystallized its wage increase decision
before it learned of the union activity or that the grant would
have occurred if the Union had not been on the scene. I find,
therefore, that the 26-cent-wage increase granted during the
runup to the election violated Section 8(a)(1) of the Act as the
complaint alleges.
B. Threats; Attempted Repudiation
About a week after the representation petition was filed on
June 20, Production Manager Brian Juarez went around the
plant and handed a memo to each employee advising them of
the filing. Lorenzo Castro, Glen Garcia, and Gilbert Pimental
were among the employees to whom he delivered a copy. As
they read it, Group Leader Jose Quinones joined them to see
what was happening. Juarez gave him a copy and then left,
apparently to deliver copies elsewhere. Quinones read it and
then turned to the three and spoke. Castro:

Q. (BY MS. BENESIS): Did Mr. Quinones say anything
about the handout?
A. (WITNESS CASTRO): Not as soon as we received it.
We all pretty much stopped what we were doing to read
the handout.
Q. And after he read the handout, did he say anything?
A. Yeah, we pretty much stopped what we were doing,
stood around, read the handout, and I remember myself,
Glen and Gilbert were discussing what we thought about

7 Case heard by the Supreme Court on other issues. 517 U.S. 392
(1996).
it. And I remember the group leader saying it will never
happen. That the Japanese wouldn't allow it.
Q. Did he say what would never happen?
A. The—us becoming union.
Q. Did he say anything else about what would happen
if the union came in?
A. Yeah, he said that, you know, before they would al-
low a union to come in, that they would either shut down
the plant and move it to one of our—to another location,
either Mexico or Texas.
Q. Did you ask him any questions?
A. I asked him what he meant by that, and he goes
like, well, they had said from the get-go that they would—
they would never allow us to have a union there. And
that's all I remember him saying.

Some time later, about a month before the election, Quinones
spoke to Veronica Arce, a graveyard shift worker in the pas-
senger department. The end of her shift overlapped slightly
with the beginning of his. She remembers the conversation
because it was the first she was aware that the Union was seek-
ing representation. She also recalls the second because of its
nature. Arce’s English requires some editing for clarity; my
edits are shown. She testified:

Q. BY MS. BENESIS: When did you hear about the un-
ion?
A. When Jose [Quinones] told me.
Q. What did Jose tell you?
A. He told me, Veronica, do you know they're going to
try to put the union inside? I say, yeah. Who? I go, who?
And I don’t remember he told me the name. But I ask
him, what do you think? And he told me I think they [the
employees] stupid because they [the Company] don't have
money to ask .

. . . .

Q. When did Jose tell you this?
A. Maybe like three weeks before the start—the elec-
tions. Like three or four, yeah.
Q. Where did that conversation happen?

. . . .

A. Cell 5, passengers.
Q. Is that a work station?
A. Yes, my work station.

. . . .

Q. BY MS. BENESIS: After Mr. Quinones asked you if
you knew about the union, do you remember if he said
anything to you about the union another time?
A. After that, Yes.
Q. When did he next say something to you about the
union?
A. I don’t remember how many days after, but he told
me when I working on 81/82’s, he tell me that the com-
pany already say if the union come in, they going to close
down because they don't have the money.
Q. Do you remember who started that conversation?
PACIFIC COAST M.S. INDUSTRIES 1435
A. I don’t remember, but I think I asked most of the
people because I'm concerned. Because I don’t know if
I'm going to vote Yes or No. So I want to know. I asking
the people, and they almost—most of the people they ask
me, they told me some things about the union.
Q. Do you remember if you asked Mr. Quinones how
you should vote?
A. If I ask him how you going to vote?
Q. How you should vote?
A. No.
Q. And when you talked with other people about the
union, did you start by asking them how you should vote?
A. I asked them how they think. If the union is good
or bad, but I never ask if I vote Yes or No.
Q. Is the 81/82 is a work station?
A. Yes.
Q. Were you working when Jose told you that the
company already decided they will close if the union came
in? Were you working when Jose talked to you?
A. Yes, I was talking [sic] [working].
Q. After that conversation with Jose, was there any
other time that he talked to you about the union?
A. Yes. After—after—before I left, he told me if the
company—if the company get the union, if they going to
strike, well, it’s not any problem because they’re going to
bring people from Japan to cover the people here. They
going—wait. [Witness pauses] If they bring the people.
So I asked him what going to happen with the people who
is going to strike, and he said they going to lose their jobs
because they have people to cover the people that wants
out.
Q. Did he say how long people from Japan would
work there?
A. He don’t tell me that.
Q. Are you friends with Anna Pacheco?
A. Not really.
Q. Have you ever worked with Anna?
A. Yes.
Q. When did you work with her?
A. I working in truck side, but I don’t like the way
how she works. So I move into passengers, but still has
her eyes on me every time. If I go bathroom. If I do this.
Or if I—anything I do, everything is bad for her. No mat-
ter what. I always try to do all my job good, but still—
Q. Did you ask to be transferred so you wouldn’t have
to work with her?
A. Yes.
Q. Who did you ask to be transferred?
A. [HR manager] Dawn [Tipton].

. . . .

Now when they had the opening to night shift, that's
when I moved to night shift because same thing. If I move
to truck side, if I move passengers, they’re the same thing.
She always has the eyes on me.
Q. Did Jose Quinones tell you that Anna was involved
in the union campaign?
A. Yes.
Q. What did he say about Anna and the union?
A. He told me if the union wins, Anna is going to be
one of the people who’s going to [be] in charge for the un-
ion. And so that made me scared because I don’t want to
have nothing with Anna.
Q. He said she was one of the people who was going to
be in charge?
A. Yeah. It’s like elected for the union to be one of
the—I don't know how say it.
Q. Have you ever told Jose that you don’t get along
with Anna?
A. He knows a lot of times.
Q. How does he know?
A. Because I tell him. And he see it. And I’m not the
only one. People who has problems.
Q. Okay. When did Jose tell you that Anna would be
in charge if the union came in?
A. Is when I work in 81/82’s. The same day when
she—he told me about the union going to be shut down if
the union’s come in.

Arce testified that Quinones issued three threats. The first
was that the employees’ union organizing was futile because
Respondent did not have enough money to pay for the wage
demands the Union would be making. The second, connected
to the first, was that Respondent would have to close if the
Union came in because it didn’t have enough money. That
threat occurred in both conversations. The third was Quinones’
statement that the employees would have to strike and that they
would lose their jobs since the strike would not succeed be-
cause Respondent would bring workers from Japan to do the
strikers’ work. Finally, aware of Arce’s antipathy toward Anna
Pacheco, he told her that Pacheco would be elected one of the
union leaders. While not exactly a threat, he knew she would
be opposed to that eventuality. He was seeking to influence her
vote.
So far as I can tell each of the things Quinones told Arce was
false. Nevertheless, there was no way for Arce to be able to
evaluate their trustworthiness. Respondent does not contest
Arce’s credibility. Indeed, it acknowledges that Quinones
made the remarks. It concedes the point because a few days
later, when its labor consultant spoke to the employees to ad-
vise them what could and could not be said during the pre-
election period, Arce’s team leader, Vern Kiawe told the con-
sultants that Quinones had just made threat to the effect that the
Company would close or move if the Union came in.
Quinones, in the meantime, had gone on vacation.
Upon hearing this, Respondent began some damage control.
At a later meeting that day, the consultant told employees that
one of the supervisors may have said the plant would close,
asserting that the statement, if made, was absolutely not true.
On July 17, Hendrick distributed a memo (dated 3 days before)
to all the team members in an effort to disavow the unidentified
supervisor’s threat, “if it was made.” The letter in its entirety:

Recently I learned that some employees may have
been told by a supervisor that if the union wins the elec-
tion on July 28, 2006, the company will close the plant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1436
This statement, if it was made, is absolutely not true. If
the union wins the election we will have an obligation to
bargain in good faith with the union, and we would bar-
gain in good faith.
We do not want a union here for many reasons, which
we have shared with you, but we will not close this plant
because the union wins the election. I have taken steps to
ensure that this type of statement is not repeated in the fu-
ture. Such a statement is a violation of our policy and will
not be tolerated. Please feel free to tell me or any other
management member if you hear any such statement in the
future.

It should first be noted that the memo does not acknowledge
that the threat was made nor does it admit any wrongdoing. It
specifically hedges as it references whatever the supervisor
may have said, using “may have” and “if it was made” expres-
sions—a clear limitation on actual acknowledgment.
Respondent did write an “employee observation sheet” di-
rected to Quinones on July 17 when he came in to get his pay-
check. Both he and Juarez signed it that day, but they never sat
together until he returned to work a week or so later. The sheet
warned him that he could be terminated if he repeated the
transgression. Even so, the admonition to Quinones remained
private and was never announced to the staff.
Respondent argues that it self-remedied the violation. The
General Counsel disagrees. For a respondent to successfully
claim that it has self-remedied a violation of the Act it must
meet the test set forth in Passavant Memorial Area Hospital,
237 NLRB 138 (1978). There, the Board said that for a repu-
diation of an unfair labor practice to be effective, it must be
timely, unambiguous and to specifically refer to the unlawful
conduct. Moreover, the repudiation must be broadly published
and no further violations must have occurred. In Holly Farms,
311 NLRB 273, 274 (1993), enfd. 48 F.3d 1360 (4th Cir.
1994),8 the Board said the employer must admit wrongdoing.
I find that Respondent has not met the requirements of Pas-
savant. While reasonably timely, this repudiation was certainly
not unambiguous; neither did it specifically refer to the unlaw-
ful conduct. Nor did it address at all Quinones’ statement that
unionization was a futile act, that the plant could be moved to
another State or country or his raising the specter of a strike and
loss of jobs to Japanese employees imported as strike replace-
ments. Clearly, it did not cover all of the unfair conduct. Ac-
cordingly, I find that the General Counsel has proven, and Re-
spondent has not rebutted, these allegations of the complaint.
IV. INTERROGATION; THE DISCHARGE OF FELICIA MONTES
As discussed above, Felicia Montes was a team leader. She
was a 16-year employee who, before her discharge, had served
for about 4 years as the day-shift team leader in the production
control department, performing shipping and receiving. I have
already found that team leaders are not statutory supervisors,
but employees protected by Section 7 of the Act. Respondent
strongly urges as one of its defenses that she was a supervisor
and is unprotected by the Act. One of Respondent’s arguments

8 Case heard by the Supreme Court on other issues. 517 U.S. 392
(1996).
is that Montes’ signature appears on a disciplinary sheet for
Hector Ocequeda when he was warned for not wearing a seat
belt while driving a lift truck. Ocequeda wrote on the back of
the sheet (R. Exh. 68), complaining a “her” didn’t understand
the facts. Respondent argued that the “her” was Montes, who
had initiated the observation sheet warning. Ocequeda, how-
ever, testified that the “her” was Dawn Tipton, the HR manager
who had ordered him to put the belt on. He said that group
leader Aldo Montes actually handed him the form. Respon-
dent’s argument is severely undermined by Ocequeda’s testi-
mony. The discipline levied upon Ocequeda has nothing to do
with Montes, who seems only to have been a witness to the
warning.
Accordingly, I remain undeterred in my conclusion. Mon-
tes’ main duties were exactly the same as her fellow team
members. She noted that there were four basic jobs in her
shipping and receiving section, each performed by one of the
four employees. They rotated jobs weekly on a schedule put in
place years before she became the lead. One employee did
plant 1’s passenger division; another worked on plant 1’s truck
division; a third did plant 2; and the fourth, plant 4. Montes
described her job as unpacking material for distribution to the
production process, including unloading the trucks. Indeed, she
first unloaded and later loaded three trucks per day. As team
leader, she was responsible for the shipping paperwork of the
group and did review paperwork prepared by the other three.
The General Counsel correctly observes that Respondent had
not held Montes accountable for the work performance of the
others, either their paperwork or the manner in which they per-
formed their jobs. Respondent’s argument that she was a statu-
tory supervisor is not supported by the evidence.
Respondent proffers one other defense, that Montes violated
the company no-solicitation policy. As will be shown, Respon-
dent’s approach to this defense required it to interrogate other
employees about her union activities and that interrogation was,
I find, coercive and a separate unfair labor practice.
The facts are relatively straightforward. In early April, Mon-
tes in the dock area had a brief conversation with fellow Team
Leader Edwin Bagalso. Bagalso is uncertain whether he was
on a break. On cross, he said he was “on the clock,” but the
matter was not pursued enough to know whether he we was
working or on a paid break, which might still have meant to
him that he was “on the clock.” He did not know whether
Montes was working or not, since their breaktimes differed. In
any event, the conversation was so brief it could not have inter-
fered with work any more than any nonwork-related brief
comment would have. Bagalso described it:

[T]he only time a person asked me [about a union] was—was
Felicia Montes. When she asked me have you heard about
the union. Then she said—then I said, what about the union?
And then she goes, oh, nothing. Just forget it. And then I
said, and then she said, forget it. And I said, why, what about
the union? And she walked away. That was it.

Bagalso was not asked if Montes asked him to sign a union
authorization card. And several weeks later, he told HR Man-
ager Dawn Tipton who was investigating what Montes had
PACIFIC COAST M.S. INDUSTRIES 1437
done, that she had not asked him to sign a card. In between,
Bagalso had gone to the Philippines to get married.
Either on the day of his encounter with Montes, or the next
day, Bagalso mentioned this snippet to his group leader, Alice
Silva. He initiated the conversation by asking if Silva knew
anything about the Union. When she said she did not, he men-
tioned Montes’ question to him. Eventually Bagalso’s remark
came to Group Leader Quinones and on to Production Manager
Juarez.
About the same time, Montes had a similar exchange with
Lue Vang, then a team leader and Montes’ peer. In December,
little more than a month before he testified, Vang had become a
group leader. According to Vang, their conversation occurred
between 8 and 9 a.m. one morning. He said she asked him how
he would feel if unions represented the employees. He replied
he’d have to think about it. Vang gave an abbreviated version
of what followed: [WITNESS VANG]: She went into a conversa-
tion of how they could improve the plans, stuff like that[.] [Q.]
So, a discussion about protection? A. Correct.
Montes acknowledges going somewhat further, saying that
she observed to Vang that the employees had not had a raise in
4 years and had no job protection. According to Montes, Vang
was more sympathetic to her concern than his simple “I’ll think
about it” response.
Later that day, Vang reported the conversation to Manager
Juarez. Vang says he simply recited the conversation to him.
Again, there is nothing to suggest that Montes had asked Vang
to sign an authorization card.
Juarez says Vang had told him that Montes had asked him to
sign an authorization card and he reported that “fact” to
Hendrick as well as the Bagalso second-hand information.
Based on the testimony given by both Bagalso and Vang, it
seems strange that anyone would have concluded that Montes
was seeking to get cards signed.
Nevertheless, Hendrick transmitted that information to HR
Manager Dawn Tipton, directing her to conduct an investiga-
tion to see if Montes had breached the no-solicitation rule
found in the company handbook.
Tipton was not called as a witness, and there is no dispute
about what she did. On April 24, she took a statement from
Juarez; later she asked Vang if Montes had talked to him about
a union. She also asked team leader Anna Pacheco the same
thing. She asked Pacheco if Montes had asked her to sign a
union card; Pacheco said Montes had not. Tipton also told
Pacheco that she had heard Pacheco’s name had been brought
up in some undetermined conversation, connected it to the un-
ion and then told Pacheco, “That is a no-no.” While not as-
serted directly, Pacheco reasonably concluded that Tipton was
telling her union organizing was not to be carried out. Tipton
told her that there would be “further investigation.”
Tipton continued on, but could not speak to Bagalso because
he was gone. Even so, she sent him a note directing him to
meet with her on his first day back.
On May 3, Tipton and Assistant General Manager Ryan
Scharffenberg met with Montes in the company conference
room. Scharffenberg testified Tipton asked Montes if she was
aware of the no-solicitation rule. When she said she was not,
Tipton asked if she had been asking employees to sign cards.
Montes answered that she knew nothing about union cards.
She asked if Montes had spoken to Vang and Bagalso, about
the Union. Montes denied that she had. Tipton did not accept
Montes’ answers and informed her that she had been named a
“union ringleader,” who was trying to organize the Company.
At that point, Tipton informed Montes that she was suspended
without pay while the investigation continued. Scharffenberg
did not quote Tipton as mention that Montes was being disci-
plined for conduct inappropriate for a supervisor.
When Montes got home, she realized she had been given no
documentation about the suspension. She called the Company
and asked Scharffenberg to send something. Tipton responded
with a letter on May 5 saying that Montes had been suspended
“without pay indefinitely, while an investigation is being con-
ducted and a decision made regarding your recent workplace
conversations.” Like the interview, it was silent about Montes’
supposed supervisory status.
On Monday, May 15, Bagalso returned and was immediately
summoned to Tipton’s office. His testimony:

Q. [BY MS. BENESIS]: What did Ms. Tipton say to you
during that meeting?
A. She said that—she said that she had some questions
for me.
Q. Did she ask you questions then?
A. Yes, she was asking me questions.
Q. What question did she ask you?
A. If Felicia Montes ever contacted me.
Q. Did she ask you if Felicia had asked you to sign
anything?
A. Oh, Yes, that's one of the questions she asked me.
And she—
Q. And what question was that?
A. If she had asked me to sign for the union.
Q. What did you tell her?
A. Then I told her No.
Q. Did she ask you any more questions about what
Felicia said?
A. No, but—Yes, she did, but it happened a long time
ago. But the only thing that I told her—remember telling
her is we passed by the aisle way and Felicia had asked me
if you [sic] [I] heard about the union. And I said, No.
And then when I went back to talk to talk—to ask her
[Montes] what about the union, and she said nothing. I
don't know what happened, but she didn't tell me. I didn't
get to talk to her that day.
Q. Did Ms. Tipton try to find out any more details?
A. She had other questions, but I don't remember most
of them.
Q. Did Ms. Tipton ask you about your involvement
with the union?
A. No, she didn't ask.

Hendrick said that Montes was suspended because he feared
she would somehow interfere with the investigation. He be-
lieved, despite her 16 years of service, that she would “intimi-
date” other employees from being forthcoming to the investiga-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1438
tion.9 He was also the individual who decided to fire Montes.
He testified he fired her because she had violated both the no-
solicitation policy and the Company’s union-free policy. As
before, there is no direct mention of Montes’ supposed status as
a statutory supervisor.
I think it is reasonable to find, even without the evidence af-
firmatively demonstrating that the team leaders are not supervi-
sors, that Respondent’s current argument is an after-the-fact
attempt at obfuscation. There is no evidence that supervisory
status played an actual role in Respondent’s decisionmaking
here.
The foregoing facts constitute a confession that Respondent
suspended and discharged Montes because of her union activ-
ity. In addition, they demonstrate that Respondent’s Tipton
coercively interrogated at least one other team leader, Bagalso,
about Montes’ union activity. The same can be said for her
questioning of Vang, even though he had first volunteered the
information to Juarez. That an employee is willing to provide
information about another employee’s Section 7 activity is not
a license to interrogate him about it. It is coercive both as to
him and as to the individual being investigated. The same is
true of the interrogation of Pacheco. So these are all unlawful
interrogations under Section 8(a)(1).
In addition, Respondent has essentially fabricated the claim
that Montes ever solicited an employee to sign a union authori-
zation card. There is no evidence from anyone, including
Vang, to suggest that Respondent had a good-faith belief that
Montes had been soliciting cards from any employee whatso-
ever, much less that it occurred during worktime.
Indeed the Board has recently reiterated that talking itself is
not solicitation within the meaning of a no-solicitation rule.
Wal-Mart Stores, 340 NLRB 637, 638–639 (2003) (Member
Battista dissenting). There it said:

In the context of a union campaign, “‘[s]olicitation’ for a un-
ion usually means asking someone to join the union by sign-
ing his name to an authorization card.” W. W. Grainger, Inc.,
[supra]. However, an integral part of the solicitation process is
the actual presentation of an authorization card to an em-
ployee for signature at that time. As defined, solicitation activ-
ity prompts an immediate response from the individual or in-
dividuals being solicited and therefore presents a greater po-
tential for interference with employer productivity if the indi-
viduals involved are supposed to be working. Solicitation is
therefore subject to rules limiting it to nonworking time and,
in the special circumstances of retail stores, to nonselling ar-
eas.

. . . .

Once again, our analysis turns on the distinction be-
tween union solicitation and other employee activity in
support of union organizing. “‘[S]olicitation’ for a union is
not the same thing as talking about a union or a union
meeting or whether a union is good or bad.” In recogni-

9 I find Hendrick’s reasoning to be disingenuous. He and Tipton
clearly believed Montes was a union organizer. They suspended her to
prevent her from further contact with her fellow employees, thereby
interdicting her organizing efforts.
tion of this distinction, the Board found that an employee
did not engage in conduct lawfully proscribed by no-
solicitation rules when she merely asked a coworker if she
had a union authorization card. In another instance, the
Board held that an employee’s act of introducing a union
representative to a coworker, and her subsequent statement
that the coworker would go along with the union, did not
constitute solicitation for which the employee could be
disciplined under the employer’s no-solicitation rule.
[Footnotes omitted.]

Also see International Signal & Control Corp., 226 NLRB
661, 665 (1976).
What Respondent was really doing here was imposing a no-
union-talk barrier. Given the fact that Respondent had no rule
against employees talking to one another about any subject, it
cannot bar their discussions about the union so long as work is
not being neglected.
The Supreme Court has said, “The place of work is a place
uniquely appropriate for dissemination of views concerning the
bargaining representative and the various options open to the
employees.” NLRB v. Magnavox Co. of Tennessee, 415 U.S.
322, 325 (1974). That observation, of course, is tempered with
the requirement that employees are expected to be performing
their work during their worktime and should not be distracted
from working by matters unrelated to work. Every employer
knows that workers talk about all sorts of things while they
work. They also know that talking can be distracting, but that it
often is not. If a distraction of that nature occurs, it is easily
correctible. But, prohibiting discussion of certain subject mat-
ters while allowing others is problematical. Thus, a rule which
bars talking about any subject at all might theoretically pass
muster under the Act. But, such a rule would make for a very
unpleasant place to work and could not be easily enforced. For
that reason, such rules are never seen. Recognizing that reality,
the Board has held company rules which prohibit talking about
matters protected by Section 7 during work while permitting
talk about any other subjects violate Section 8(a)(1) of the
Act.10 Opryland Hotel, 323 NLRB 723 (1997), citing Teksid
Aluminum Foundry, 311 NLRB 711, 713–714 (1993); Meijer,
Inc., 318 NLRB 50, 57 (1995); Jennie-O Foods, 301 NLRB
305, 316 (1991); T & T Machine Co., 278 NLRB 970 (1986);
Orval Kent Food Co., 278 NLRB 402 (1986); Cerock Wire &
Cable Group, 274 NLRB 888, 897 (1985). Also Saginaw Con-
trol & Engineering, 339 NLRB 541 (2003). Such a rule does
not prevent an employer from telling employees who have
stopped work to talk to get back to work.
Whatever Montes was doing, it did not breach any rule
against solicitation. At most she was trying to generate a brief
conversation with a fellow employee, a peer team leader, about
their feelings toward union representation. That is far from
solicitation. Talk itself cannot be solicitation. She was doing

10 Sec. 7 of the Act states: “Employees shall have the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall also have the right to
refrain from any or all such activities except[ions not relevant here].
PACIFIC COAST M.S. INDUSTRIES 1439
what Magnavox expressly permits. Respondent did not tell her
to go back to work; it hunted her down and fired her for engag-
ing in protected activity in support of union representation.
That is a clear violation of Section 8(a)(3) and (1) of the Act.
Moreover, Tipton’s imposition of such a bar on Pacheco during
the hunt for Montes (“That is a no-no.”), violates Section
8(a)(1) as well.
V. ELECTION ISSUES—CASE 32–RC–5443
A. The Postures of the Parties
As the election closed on July 28, the Union was leading 33
to 28, a margin of just 5 votes. There were 10 challenged bal-
lots which are determinative of the final outcome. Most of
those voters are, or were, team leaders, including discriminatee
Felicia Montes. The Board affirmed the Regional Director’s
sustaining the challenge to 1 of the 10, leaving 9 for resolution,
still a determinative number.
In addition, the Union/Petitioner filed five objections which,
in the event the final tally does not support its bid for certifica-
tion, would if sustained, require a second election. The first
three objections tend to track the unfair labor practice com-
plaint, but are not congruent with it. The last two assert that the
Employer allowed supervisors in the voting area, particularly in
assigning a supervisor (Lue Vang, then a team leader) to be an
election observer.
The Employer filed 11 objections. The Board has adopted
the Regional Director’s rejection of Employer Objection 10.
The Board ordered the Regional Director to include four of the
Employer’s objections to be heard with the five the Regional
Director had already ordered to hearing. Thus, the Employer’s
nine remaining objections will be decided here.
Those may be grouped discretely. The first group ( Objec-
tions 1, 2, 3, and 9) deals with the polling place layout, where it
asserts that during the early morning session, the Union’s ob-
servers were sitting too closely to the voters as they cast their
ballots. This, it asserts, allowed for the impression that voters’
selections were under surveillance and made it appear as if the
balloting was not secret. It also asserts that the Board agent
was complicit in this conduct because she did not take steps to
rearrange the layout to prevent the conduct.
The second group (Objections 6 and 8) deals with the num-
ber of observers the Union placed at the polls. It also alleges
that the Board agent was complicit and contributed to the prob-
lem by not taking appropriate steps to deny the Union the addi-
tional observer.
Objection 5 asserts that one of the Union’s observers en-
gaged in electioneering at the polls.
The foregoing objections are all aimed at the conduct of the
election itself. The remaining objections are directed to con-
duct which occurred in the days before the election. Objection
4 asserts that Montes and Pacheco solicited employee support
and authorization cards during worktime.
Objection 7 asserts that the Union is responsible for the in-
timidation of an employee at her home by vandalizing a street-
side mailbox and leaving a dead rat and a car with union stick-
ers in the driveway. Objection 11 asserts that even if the Union
cannot be shown to be responsible for the incident, the election
should nevertheless be overturned because it interfered with the
laboratory conditions the Board requires for its elections.
As with the Union’s concerns, the Employer seeks a new
election in the event that in the final tally the Union obtains a
majority of the votes. Therefore, the objections must be re-
solved before the challenged ballots can be resolved and
opened. The Union’s objections will be analyzed first.
In general, the Board will not entertain objections to an elec-
tion which occur prior to the commencement of the preelection
critical period. Ideal Electric & Mfg. Co., 134 NLRB 1275
(1961). Ideal Electric establishes the preelection critical period
to be the timeframe between the filing of the election petition
and the conclusion of the polling. Therefore, incidents occur-
ring prior to June 20 or after the July 28 poll closing will not be
considered as affecting the election outcome. They may never-
theless be unfair labor practices reachable under Section 10 of
the Act.
B. The Petitioner’s Objections
Clearly the 8(a)(1) threats to close and/or move the plant ut-
tered by Group Leader Quinones a week after the petition fall
within the critical period. This conduct is encompassed by
Petitioner’s Objection 1 (Pet. Obj. 1). Nor, as I have found,
was the conduct properly repudiated. To the extent that the
Petitioner’s Objection 1 alleges that the Employer would carry
out postelection reprisals different beyond closing or moving,
no evidence has been presented. Similarly, Petitioner’s Objec-
tion 2 asserts that the wage increase announced on June 30 was
an attempt to discourage employees from voting in favor of
union representation. I have previously found that wage in-
crease to be an unfair labor practice within the meaning of Sec-
tion 8(a)(1).
In Petitioner’s Objection 3, the Union contends that the Em-
ployer threatened to decrease wages or take other action against
the employees if they voted for the Union. Here, I do not find
any evidence of a threatened wage decrease, but I have found
that Quinones unlawfully created the impression that union
representation would be futile and, in addition, that in the event
of a strike, the striking employees would be replaced by work-
ers coming from Japan. I think Petitioner’s Objection 3 fairly
encompasses such a threat.
As for Petitioner’s Objections 4 and 5, these are directed at
the Employer’s use of Lue Vang as an observer. I have found
above that team leaders are not supervisors as defined by Sec-
tion 2(11) of the Act. Vang, accordingly, was a 2(3) employee.
The Employer’s selection of Vang did not interfere with the
conduct of the election.
The Board has consistently held since Dal-Tex Optical Co.,
137 NLRB 1782 (1962), that conduct violative of the Act is a
fortiori conduct which interferes with the exercise of a free and
untrammeled choice in an election. Accordingly, following the
law set forth in Dal-Tex, I find that unfair labor practices occur-
ring during the preelection critical period are grounds for set-
ting aside the election and ordering a rerun since they match
Petitioner’s Objections 1, 2, and 3. Therefore, in the event the
final tally does not demonstrate a majority in favor of the Un-
ion, I will recommend that the election be set aside and a new
election conducted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1440
C. The Employer’s Objections
As noted above, the first group of employer objections, Ob-
jections 1, 2, 3, and 9 (E. Objs. 1, 2, 3, and 9) targets the polling
layout that the Employer asserts was misconduct or the appear-
ance of misconduct.
The facts are not in dispute and Respondent’s Exhibits 64–67
are four photographs of the polling place taken after the morn-
ing session. (At the Employer’s request the tables were moved
further apart for the afternoon session.) The polling place was
Respondent’s conference room. It is not a large room, but ade-
quately houses one 6- or 8-person conference table, a smaller
table and a telephone table, as well as several chairs, enough for
each table and apparently some along the wall. The tables were
arranged in a Τ, with the small table across the top of the large
table. Two NLRB blue corrugated cardboard voting partitions
or booths were set atop the small table about a foot apart. They
are designed for tabletop use. I have administratively deter-
mined that this official agency equipment is 16 inches high, 24
inches wide, and 19 inches deep. Within the booth’s confines,
the voter places the ballot on the table top, 16 inches below the
top of the booth. There is even a 2-inch brace flap across the
top of the booth which serves as an additional blind to shield
the voter’s marks. This system is similar to some curtainless
public election partitions, although in public elections the ob-
servers are much further away than here and the partition’s size
is often more shallow than the Board’s. In that latter respect,
the Board’s partitions are superior to those used in public elec-
tions, for they are more private.
Lue Vang provided the Employer’s testimony. He was the
only one of three observers who testified. As mentioned, he
was a team leader who later became a group leader. It was his
tipoff to the Employer’s attorney during the break between the
two election sessions that caused the photographs to be taken.
Vang testified that the two union observers were Stephanie
Martinez and Felicia Montes. He said that that the company
representatives during the preelection conference made two
objections to the union observers. First, that the Board agent
permitted the Union to have two observers while the Employer
only had one. Second, that the Board agent permitted Montes
to serve as an observer even though she had been discharged.
Vang agreed that the Board agent gave the Employer the op-
portunity to obtain a second observer and that it declined, say-
ing that there was insufficient time. The Employer did not add
a second observer for the second session, either, though there
clearly was sufficient time at that stage.
The Board agent and the observers took their places at the
long table. Although there was room for three chairs on each
side, the photo shows only two were used. The Board agent sat
in the middle chair on the left side of the long table. Stephanie
Martinez sat to the Board agent’s left and next to the smaller
table supporting the voting partitions. She sat with her back to
booths and Vang says Martinez never looked at the voters as
they cast their ballots behind her. Montes sat opposite Marti-
nez, on the large table’s right side. Vang agrees that Montes
also sat with her back to the voting partitions and he never saw
her look at the voters casting their ballots. Vang sat in the mid-
dle chair next to Montes and opposite the Board agent. The
Board agent was in a swivel chair and with the help of the ob-
servers could watch the voters enter the room from the door
behind her. No one sat in the other two chairs.
Once the voters identified themselves to the Board agent, she
gave them a ballot. They would then walk past Martinez, round
the edge of the small table and stand behind one of the two
booths. They cast their ballot, returned the way they came in,
and as they exited, placed their ballot in the ballot box which,
during the first session, sat on the telephone table next to the
door. Vang did not testify that the secrecy of any voter’s ballot
was compromised by this arrangement. He was concerned,
however, by the close proximity of the two union observers to
the voting partitions. Had they made the effort to do so, he
thought that they could have risen from their seats and looked
inside. He agrees they never did. Moreover, the photos show
that the eye level of each (photographic stand-in) observer was
about even with the top of the partitions. I find that, despite
their proximity to the partitions, no observer could have looked
over the 16-inch booth front without standing and making an
obvious effort to do so. There is no evidence that voters made
any complaint about ballot secrecy even though the observers
were sitting right in front of them. I find that ballot secrecy
was not compromised. Instead, all three observers focused on
identifying the voters as they came through the door. Indeed,
voter identification is their primary duty. A person desiring to
look into the booth would have had to make a great and obvi-
ous effort to do so. As a result, I find, secrecy of voting was in
fact accorded to each voter. Furthermore, I find that this ar-
rangement did not even create the appearance that ballot se-
crecy was being compromised.
Therefore, Respondent’s objections cannot be sustained and
must be overruled. It is certainly well settled that the Board
must maintain and protect the integrity and neutrality of its
election procedures. Integrity of the process is a hallmark of
Board election procedures.
There are some similarities here with Avante At Boca Raton,
Inc., 323 NLRB 555 (1997), at least in the sense that the objec-
tion there also raised concerns about the arrangement of voting
equipment in the polling place. There, the objection com-
plained that the ballot box was too close to the observers. Yet,
as here there was no evidence that ballot secrecy was somehow
compromised. “The Employer did not present any voters to
testify about witnessing any of the observers, the translator or
the Board agent handling or tampering with their ballot once
marked, nor to testify about the fact that their election choice
was witnessed or that they had the impression that it was wit-
nessed by one of those individuals as they approached the bal-
lot box.” Id. at 558.
The Board adopted the hearing officer’s recommendation
that the objection be overruled. Clearly, a mere assertion that
secrecy was compromised is insufficient to warrant setting an
election aside. That is all we have here, a mere assertion. In-
deed, Vang’s testimony demonstrates that the evidence is to the
contrary. No observer made any effort to look into the voting
booths and they could not have seen into them without making
an obvious effort to do so. I shall recommend that Employer’s
Objections 1, 2, 3, and 9 be overruled as not supported by any
evidence.
PACIFIC COAST M.S. INDUSTRIES 1441
Employer’s Objections 6 and 8 assert that the Union’s insis-
tence on having two observers while the Employer could only
provide one breached the election agreement and is ground for
setting the election aside. Again, the facts are undisputed. The
fifth paragraph of the Stipulated Election Agreement states:
“OBSERVERS. Each party may station an equal number of
authorized, nonsupervisory-employee observers at the polling
place to assist in the election, to challenge the eligibility of
voters, and to verify the tally.”
The Board has certainly said that the provision in the elec-
tion agreement is a “material” provision, at least to the extent
that it establishes for each party a bargained-for “right” to have
observers. Breman Steel Co., 115 NLRB 247, 249 (1956) (em-
ployer denied any observer); Browning-Ferris Industries of
California, 327 NLRB 704 (1999) (union denied any observer).
In both cited cases, the Board set the election aside and ordered
a second election.
In Best Products Co., 269 NLRB 578 (1984), affd. 765 F.2d
903 (9th Cir. 1985), during the preelection conference before
the first voting session, the petitioner requested that the number
of observers be increased to two per party on the grounds that
an additional observer was necessary to enable the petitioner to
identify all the voters. The Board agent granted the request, and
requested the employer to provide an equal number of observ-
ers. The employer declined for several reasons. The Board
thereupon overruled the objection which followed and issued
the appropriate certification. However, the Board has held that
where a union did not learn until the preelection conference that
the employer was selecting two observers for each station at a
multisite election and could not reasonably have obtained addi-
tional observers, the election must be set aside. Asplundh Tree
Expert Co., 283 NLRB 1 (1987).
In Inland Waters Pollution Control, Inc., 306 NLRB 342,
342–343 (1992) (Member Raudabaugh dissenting), the Board
observed that even though the clause in the stipulated agree-
ment established a “right” and was a “material” clause, it was
not an absolute right. As the Board noted, it does not logically
follow:

[T]hat “because the Board agent refused to seat [the late-
arriving observer], the denial was a material breach of the
agreement. The right to an observer, while material, is not ab-
solute. It is an implicit condition of an election agreement that
the observer to which a party is entitled will show up in time
to carry out his or her functions without risking disruption of
the election. If, as here, a party’s observer arrives when the
election is well underway and the Board agent makes a rea-
sonable judgment that instructing and installing the observer
at that point would disrupt the election, and if, as here, the
party has failed to take reasonable steps to make up for the
late arrival—such as appointing an alternate available to serve
in the designated observer’s place—then the party’s own con-
duct has prevented it from securing its ‘right’ to an observer.”

Accordingly, the Board overruled the objection.
Here, Company Vice President Hendrick testified that the
Union, at the time of the preelection conference, advised that it
intended to have two observers. Stephanie Martinez was one
and she was present for the meeting. The other, though identi-
fied early on, discriminatee Felicia Montes, did not arrive until
toward the end of the conference. Hendrick initially objected to
Montes as an observer since she was no longer employed. That
was resolved after a short discussion. Respondent’s counsel
then objected that the number of observers was now unequal.
The Board agent proposed that the Employer get another ob-
server. Hendrick testified that the attorney responded that there
was not enough time, that the election was to start at 5:30 a.m.,
and the Company did not have time to pull somebody off the
floor and explain their duties to them. The record does not
show the time of day when he made his observation. As a re-
sult, the election was conducted with the Union having two
observers and the Employer having one. In addition, even
though the Employer could have found a second observer for
the afternoon session, it chose not to do so.
On these facts, I do not find any breach of the Stipulated
Election Agreement whatsoever. First, the language of the
Stipulated Election Agreement itself uses the word “may,”
rendering the provision permissible: “Each party may station an
equal number.” Furthermore, circumstances did not arise
which barred the objecting party from having any observer at
all. The Employer did have an observer, Vang, who seems to
have carried out the Employer’s concerns, particularly with
respect to the election arrangements discussed above.
I am also persuaded by the logic of Inland Waters Pollution
Control, supra. The clause in question is a “material one,” of
course. But, the breach was not material, if it may even be
called a breach. It appears to me that the Employer has failed
to demonstrate that the Board agent denied it the opportunity to
obtain a second observer. Even if time had been short, the
Board agent could probably have instructed any newly arriving
observer concerning his/her duties. The decision to go forward
with one observer was made by Respondent. It simply did not
exercise its permissive right to find a second observer. I shall
recommend that these objections be overruled.
Employer’s Objection 5 asserts that one of the Union’s ob-
servers, Stephanie Martinez, engaged in electioneering within
the meaning of the Board’s Milchem11 rule. This rule prohibits
prolonged conversations between persons connected to a party,
including election observers, with prospective voters waiting to
vote. Such conversations, without regard to their content, will
be sufficient to set aside an election as improper electioneering
near the polls. It does not apply where the voter initiates the
conversation or consists of ordinary pleasantries or chance
remarks. In those types of case, the objection will not be sus-
tained as they do not constitute electioneering.
In support of this objection, the employer offered the testi-
mony of its observer Lue Vang. He testified that union ob-
server Stephanie Martinez was sitting in the chair to the left of
the Board agent with her back to the voting partitions. In that
position, she could easily see the Board agent, the door and the
ballot box behind the agent’s swivel chair and, of course, voters
who entered the room to vote. Indeed, all three observers had
approximately the same aspect of the room as they faced the
doorway.

11 170 NLRB 362 (1968). Misprinted “Michem” in the title line.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1442
Vang testified that at one point during the morning session
Angel Martinez, a team leader from plant 2, came into the
room.12 Stephanie Martinez asked him, “Was that all your
people?” Angel Martinez simply replied, “Yes.” There is no
evidence that anything further was said by either. Indeed, Vang
was not asked if Stephanie Martinez made the remark before or
after Angel voted. Furthermore, he did not offer evidence con-
cerning whether any other voters were in the room at that mo-
ment.
The Employer urges that I find the comment made by
Stephanie Martinez to be a statement of employee solidarity
and therefore impermissible electioneering. I cannot concur.
First, this is not a Milchem type of conversation. It was ex-
tremely brief, not prolonged in any way. Indeed, Stephanie’s
words were a question seeking a one-word answer, apparently
an inquiry about whether all the people from Angel’s work area
had now voted. It is certainly not electioneering on its face.
Nor would it have been even if Angel’s answer had been “No.”
Had he given a negative answer, she might have asked him to
urge the remaining employees to come vote. This, of course, is
rank speculation, but it would not have constituted electioneer-
ing if that had been the direction her question led, for urging
fellows to vote, without a partisan message, is only asking them
to exercise their right under the law. Only by innuendo could
one reach the conclusion suggested by the Employer. Yet,
given the lack of evidence about other voters being in the area,
that conclusion would only be speculation, too. I find that Em-
ployer’s Objection 5 should be overruled.
Employer’s Objection 4 asserts that Team Leaders Felicia
Montes and Anna Pacheco interfered with the election in the
days and weeks before by soliciting union authorization cards
during worktime and in violation of the Employer’s no-
solicitation rule. This can have merit only if the two were
statutory supervisors. I have earlier found that they were not.
But even if they were supervisors, no showing has been made
demonstrating the extent of their involvement. Moreover, it is
manifest at this stage that Montes never solicited cards at all,
nor did the Employer have any realistic basis to believe that she
had.
Laborer Sylvia Gonzalez said that Pacheco had asked her to
sign a union card on April 29, but there is no evidence that
Pacheco presented one for Gonzalez’ signature. In fact, the
conversation initially was an inquiry by another employee
about whether Gonzalez was going to attend an immigration
march on May 1.

Q. [BY MR. DOWDALLS]: Okay. Now, when this con-
versation between you and Anna Pacheco was taking
place, who did it start, how did it come up?
A. [WITNESS SYLVIA GONZALES]: I was working on
clamp set, on 21, 22, was [sic] [with] Gilbert Pimentel,
and he, she asked me if I come to this Monday the May
1st.
Q. Come to what?
A. To work. It’s the immigrants march, something
like that.

12 As a team leader, Angel Martinez cast a challenged ballot.
Q. So, that was the day of the big immigrants march?
A. On Monday.
Q. That was Monday?
A. Monday.
Q. Was that May 1st?
A. May 1st.
Q. Okay.
A. And we was working was Saturday April 29th.
Q. Okay.
A. And I say, I don’t know, you come? And she
[Anna Pacheco] told me, no, oh, maybe I’m not. And she
start to tell me if I know about the union and that thing.
And I say, I don’t know. And she asked me if I—oh—
after that she told Hebe (phonetic) if he come this Monday
to work. And Hebe say, no. And she told her, aye, it’s
your people, come on, it’s your people. And loud she
asked me about if I want to sign a card, and I say I don’t
know, let me think.
Q. Did she say what the card was for?
A. No. But she, before she told me about that union
and that thing.
Q. Okay. So, she was talking to you about the union,
telling you about the union?
A. Yes.
Q. And then she asked you if you would sign a card?
A. Yes.
Q. Okay. All right. Well, let me ask you then, what
did you say?
A. Oh, I say I don’t know, let me think.

The import of this testimony’s is very elusive. Gonzalez
seems to believe the card was for the Union, but never quite
says so. In fact, she’s not certain that Pacheco even had a card
at all. Gonzalez says Pacheco had a paper in her hand, but she
never saw what it was. Her uncertainty prompted some ques-
tions from me.13
In any event, it seems to me that the Employer is challenging
the Union’s showing of interest, claiming it was undermined by
supervisory solicitation committed by Montes and Pacheco.
This is an effort, by indirect means, to challenge the sufficiency
of the Union’s initial showing of interest. The Board will not
permit litigation of such an issue. O. D. Jennings & Co., 68
NLRB 516 (1946). Regional Directors will examine such mat-
ters administratively, but the claim needs to be supported by
evidence. Moreover, a collateral attack on the sufficiency of
the showing of interest will not be permitted. International
General Electric, S. A., Inc., 117 NLRB 1571 (1957). Simi-
larly, the Board will not look behind the showing of interest
made by the Regional Director if the issue is brought up in a

13 Questions from Judge Pollack:
ADMINISTRATIVE LAW JUDGE POLLACK: She had something
in her hand?
THE WITNESS: —something in her hands.
ADMINISTRATIVE LAW JUDGE POLLACK: But, you didn’t get
to see what it was in her hand?
THE WITNESS: No, no, that’s why I told you I can’t tell you
it’s that card or not, because I’m not sure.
PACIFIC COAST M.S. INDUSTRIES 1443
postelection circumstance. Goldblatt Bros., Inc., 118 NLRB
643 (1957); Gaylord Bag Co., 313 NLRB 306, 307 (1993).
Also see Glomac Plastics, 194 NLRB 406 (1971), which
outlines the level of supervisory infection necessary to declare
those cards invalid. That case arose in a demand for recogni-
tion framework, not in an election objections context, as here.
I, however, will not concern myself with it, particularly since
the argument has no merit once the nonsupervisory status of the
solicitors has been established.
Finally, it is clear that the conduct occurred before the peti-
tion was filed on June 20. Montes had been suspended as of
May 3 and hadn’t been at the facility for over 6 weeks before
the critical period even commenced. Pacheco’s single solicita-
tion of Gonzalez, if it can be so termed, occurred on April 29,
some 7 weeks before the petition was filed.
It may be argued that even though the solicitation occurred
before the critical period began, an exception should be made.
Lyon's Restaurant, 234 NLRB 178 (1978), does seem to pro-
vide for an exception to the Ideal Electric preelection critical
period limitation on objections. Even so, I find it to be distin-
guishable, for the exception deals with an entirely different type
of complaint, dues waivers/vote purchasing under the Savair
doctrine.14 This exception simply has no application to an iso-
lated solicitation of an authorization card intended to demon-
strate an adequate showing of interest. Employer’s Objection 4
will be overruled.
The final objection, Employer’s Objection 7 asserts that the
election should be set aside due to someone’s having vandal-
ized the streetside mailbox of a voter, leaving a dead rat in her
driveway. It also references a car in the voter’s driveway hav-
ing prounion stickers, but no evidence on this claim was ad-
duced.
The only testimony in support of this objection was by Alma
Baca, who is a 14-1/2-year employee who works the day shift
in the plant 1 truck department. She testified that 9 or 10 days
before the election she had a conversation with her son, Mat-
thew, about the Union. Matthew is a plant 2 employee who
still lives at home with his parents. She initiated the conversa-
tion, asking him if anybody had approached him about the Un-
ion. He replied that someone had, asking him if “he was still
with us?” He told his mother he had said he was, and then said
the person had asked about her. She testified he told her that he
had responded, “I don’t know if she is, but I can get her to
change her mind.”
Two days later, now a week before the election, she rose at
her normal time, 4:15 or 4:30 a.m. to get ready for her 6 a.m.
workday. The Bacas’ house is about 1-1/2 miles from the
plant. As she arose, she heard a loud bang in front of the house
and the sound of a car driving away. She says both she and her
husband opined that it sounded as if something had happened to
the mailbox, located on a post on the street. They did not in-
vestigate.
Later, when she exited the house to go to work, about 5:45
a.m., she saw a dead rat in front of her car in the driveway.
Then, as she drove away from the house, she saw the family

14 NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973).
mailbox had been knocked off its post. She reported the inci-
dent to her supervisor, Group Leader Frank Cordero.
The Employer has offered no evidence demonstrating why
the incident should be attributed to anyone connected to the
election, yet asserting that the conversation she had with her
son somehow implicates the Union. First, the evidence is rank
hearsay; but second, there is nothing in the remark which would
tie the Union to incident. If the Union is counting probable
votes in advance of the election, as Matthew’s conversation
suggests, it does not follow that the Union would resort to in-
timidation as a means of obtaining her vote.
Recognizing the weakness of its argument, the Employer al-
ternatively asserts that unknown third parties may have vandal-
ized the mailbox and thrown the dead rat in the driveway. It
correctly invokes the Board’s long-held the laboratory condi-
tions requirement, asserting that it does not really matter who is
culpable for misconduct, but if the misconduct created an at-
mosphere which interferes with the employees’ free and un-
trammeled right to choose a bargaining representative, the elec-
tion should be set aside. See, e.g., Al Long, Inc., 173 NLRB
447 (1969).
Here, however, there is no other conduct available which can
be used as a ground for finding the atmosphere had become so
infected the ability to run a fair election had been destroyed.
The vandalized mailbox and dead rat cannot even be said to
have been connected to the election at all. That being the case,
the incident cannot have affected the atmosphere surrounding
the election in the first place.
Even so, if the incident could somehow be connected to the
election, it was isolated, occurring a week beforehand. It was
insufficiently widespread to have contaminated the preelection
atmosphere. I will recommend that this objection be overruled,
as well.
D. Challenged Ballots
Having found that the persons holding the job classification
of team leader are all statutory employees, it follows that all of
them were entitled to cast a ballot in the representation election
conducted July 28. Those individuals are: Edwin Bagalso, Lue
Vang, Angel Martinez, Oscar Sanchez, Keing Orn, Phanna
Kang, Anna Pacheco, and Israel Quinto. The ninth remaining
challenge is Felicia Montes. Montes, of course, is also a team
leader. In addition, I have found that Montes was unlawfully
suspended and later discharged in violation of Section 8(a)(3)
and (1) of the Act as detailed above. Under the Act, she is
entitled to a remedy which includes reinstatement to her job.
She, too, is entitled to cast a ballot in this election.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. General Teamsters Local No. 439, affiliated with Interna-
tional Brotherhood of Teamsters is a labor organization within
the meaning of Section 2(5) of the Act.
3. On the dates shown in the decision, Respondent violated
Section 8(a)(1) when its Human Resources Manager Dawn
Tipton coercively interrogated employees about their union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1444
activities, sympathies, and desires and about the union activi-
ties, sympathies, and desires of other employees.
4. In May and June, Respondent acting through Tipton vio-
lated Section 8(a)(1) by telling employees they could not talk
about organizing a labor organization in circumstances which
did not interfere with their work.
5. On the dates shown in the decision, Respondent, acting
through a statutory supervisor, Group Leader Jose Quinones,
violated Section 8(a)(1) by telling employees Respondent
would close or move the plant to another State or country if the
employees chose union representation, by telling employees
that unionization was a futile act, and by telling employees that
striking would result in their losing their jobs.
6. On June 30, Respondent violated Section 8(a)(1) by grant-
ing a wage increase for the purpose of deterring employees
from voting in favor of union representation in an NLRB elec-
tion.
7. On May 3, Respondent violated Section 8(a)(3) and (1) of
the Act when it suspended its employee Felicia Montes because
of her union activity; thereafter, on May 25 it violated Section
8(a)(3) and (1) when it discharged Montes because of her union
activity.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. And, as Respondent discriminatorily sus-
pended and then discharged its employee Felicia Montes, it will
be ordered to offer her immediate reinstatement and make her
whole for any loss of earnings and other benefits, computed on
a quarterly basis from the date of her discharge to the date of a
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Furthermore, it shall be required to ex-
punge from Montes’ personnel file any reference to her illegal
discharge. Sterling Sugars, 261 NLRB 472 (1982). Finally, it
shall be directed to post a notice to employees advising them of
their rights and describing the steps it will take to remedy the
unfair labor practices which have been found.
[Recommended Order omitted from publication.]