Don Chavas LLC d/b/a Tortillas Don Chavas

National Labor Relations Board - Administrative Judge Opinions

Feb 15, 2013

28-CA-063550 (N.L.R.B. Feb. 15, 2013)

JD–04–13
Tucson, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DON CHAVAS, LLC d/b/a
TORTILLAS DON CHAVAS

Respondent
and CASES: 28-CA-063550
28-CA-067394
MARIELA SOTO
Charging Party
and
ANAHI FIGUEROA
Charging Party
Sophia Alonso, Esq., Paul Irving, Esq. and
John Giannopoulos, Esq., for the General Counsel.
John J. Munger, Esq. and
David Ruiz, Esq., for the Respondent.
DECISION
Statement of the Case
Christine E. Dibble, Administrative Law Judge. The case was tried in Tucson, Arizona,
on August 22—24, 2012, and October 1—3, 2012.1 Mariela Soto (Soto) filed the charge in case
28–CA-063550 on August 29, 2011. Anahi Figueroa (Figueroa) filed the charge in case
28–CA–067394 on October 24, 2011. Figueroa filed an amended charge in case 28–CA–
067394 on November 28, 2011. The Regional Director for Region 28 of the National Labor
Relations Board (NLRB/Board) issued an Order Consolidating Cases, Consolidated Complaint
and Notice of Hearing on November 30, 2011. Respondent filed a timely answer on December
13, 2011, denying all material allegations in the consolidated complaint. By motion dated
September 7, 2012, the Acting General Counsel (General Counsel) for NLRB moved to amend
the complaint to include re-numbering of paragraphs 2(j), to 2(o), 4(i) to 4(j) and 4(j) to 4(k). The
General Counsel’s motion to amend also included a request to add paragraph 4(i). Paragraph
4(i) reads as follows:

1 All dates are in 2011, unless otherwise indicated.
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Since about September 4, 2011, Respondent, by Jesus Arturo Olguin, by telephone,
threatened its employees with discharge because they ceased working concertedly and
engaged in a strike.
By Order dated September 19, 2012, I granted the motion to amend. Payless Drug
Stores, 313 NLRB 1220, 1221 (1994).
The amended complaint alleges that Respondent violated Section 8(a)(1) of the National
Labor Relations Act (the Act) when (1) on or about July 7, 2011, Respondent transferred Soto to
a different work shift, thus causing her termination; (2) on or about September 4, 2011,
Respondent, by Jesus Arturo Olguin (Olguin), by telephone, threatened its employees with
discharge because they stopped working concertedly and engaged in a strike; (3) on or about
September 4, 2011, Respondent discharged employees Figueroa and Alan Pineda (Pineda);
and (4) in or about mid-September 2011, Respondent transferred Figueroa (who had been
rehired) to a different work shift thus causing her termination.
Based on the entire record, including my observation of the witnesses’ demeanor, and
after considering the General Counsel’s and Respondent’s briefs, I make the following:
Findings of Fact
I. Jurisdiction
Respondent, an Arizona limited liability company with an office and place of business in
Tucson, Arizona, produces, distributes, and sells tortillas and related products.
Respondent contests the Board’s jurisdiction in this matter. Respondent argues that it
has not during the past 12 months and at all material times purchased and received, at its
facility in Tucson, Arizona, goods valued in excess of $50,000 directly from points outside the
State of Arizona. Respondent admits it engaged in commerce outside the State of Arizona but
contends the dollar amounts are below the jurisdictional requirements and have a de minimis
effect on interstate commerce.
The General Counsel argues that under an indirect inflow theory of the case,
Respondent meets the jurisdictional requirements of the Act. Indirect inflow refers to the
purchase of goods or services that originated outside of the employer’s state, but purchased by
the employer from a seller in the state.
In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1(1937), the Supreme Court held
that the Commerce Clause of the U.S. Constitution gave Congress the authority to regulate
labor disputes of employers whose activities “affected” interstate commerce, thus upholding
Section 10(a) of the National Labor Relations Act (NLRA/Act). Section 2(6) & (7) of the Act
defines “commerce” and “affecting commerce.” This statutory jurisdiction to regulate labor
disputes includes both unfair labor practices and representation questions. Due to the broad
powers granted it to regulate industrial relations of employers engaged in interstate commerce,
the Board never found it effective to exercise its full powers. Therefore, over time, the Board
exercised its discretion to decline jurisdiction in certain areas. In 1950, the Board developed
jurisdictional standards for a uniform assessment of determining jurisdiction, with modifications
of the standards in 1954 and 1958. However, the Board’s use of its discretionary powers to
exercise jurisdiction resulted in Supreme Court rulings and Congress limiting the Board’s power
to decline jurisdiction. Congress added Section 14(c)(1) & (2) in the Landrum-Griffin
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amendments of 1959. Thus Congress approved of the Board declining jurisdiction involving an
entire class of smaller employers, but prohibited it from declining over employers covered under
the jurisdictional standard in effect on August 1, 1959. Nonetheless, the Board continues to
have broad discretion to decline jurisdiction. The federal courts have uniformly observed that
the Board is not required to adhere to its jurisdictional standards but usually follows it. The court
in NLRB v. Erlich’s 814, 577 F.2d 68, 71 (8th Cir. 1978), noted an administrative standard “is a
discretionary standard which the Board has imposed upon itself. Where statutory jurisdiction
exists…the Board had the administrative discretion to disregard its own self-imposed
jurisdictional yardstick.” However, the Board cannot assert jurisdiction if the employer’s business
does not involve interstate commerce that exceeds the de minimis level. Monetary sums far
smaller than those at issue have been found by the Board to exceed the de minimis level.
(Marty Levitt, 171 NLRB 739 (1968), held that $1500 in out-of-state activities “is more than the
trifle or matter of a few dollars, which the courts have characterized as de minimis.”)
Respondent argues that because it sold exclusively to in-state businesses and
purchased solely from in-state enterprises, it has not engaged in interstate commerce within the
meaning of Section 2(6). In addition, Respondent contends jurisdiction is not proper because
the alleged unfair labor practices are not “the type of intrastate activities that if widespread,
would substantially decrease the flow of interstate commerce.” (R. Br. p.13)2
I find that the alleged unfair labor practices at issue are exactly the type of activities
Congress envisioned when passing the Act. Changing the terms and conditions of employment
in retaliation for engaging in concerted activity would tend to lead to a labor dispute that would
“burden or obstruct commerce” or the “free flow” of commerce. Respondent admitted that the
alleged actions had caused the loss of customers. Therefore, presumably, reducing the amount
of goods sold intrastate and the amount of supplies needed to purchase from interstate
suppliers, thus burdening the “free flow” of commerce. Stoppage or disruption of work in
Tucson involves interruptions in the steady stream into and out of Arizona, of credit, cash, and
supplies. Congress has explicitly regulated transactions and goods in interstate commerce and
also activities which in isolation might be found to be “merely local but in the interlacings of
business across state lines adversely affect such commerce.” See, Polish National Alliance v.
NLRB, 322 U.S. 643 (1944); NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224 (1963).
Although Respondent argues the Board’s assertion of jurisdiction is inappropriate
because it conducts business intrastate, under the indirect inflow theory of jurisdiction the
evidence clearly establishes that the jurisdictional standard has been met.
The evidence establishes that Respondent purchased the majority of its supplies from
Food Source International, LLC (FSI), a wholesale supplier of baking and food products with its
office located in Tempe, Arizona. Weston Huber (Huber), office and operations oanager for FSI,
testified on behalf of the General Counsel. FSI supplies Respondent with wholesale baking
ingredients. Huber explained the record keeping system he utilized to track the products sold to
Respondent, the price Respondent paid for the products, and the state of origin of the products.
(Tr. p.170, 190, 193, 195–196, 206.) Huber produced evidence establishing that Respondent
purchased and received goods totaling $51,755.50 from FSI for the period August 2011 through
July 2012. (GC Exh. 9, 10.) FSI purchased the supplies it sold to Respondent from out of state
vendors. (GC Br. p. 13, 15, 16; GC Exh. 12, 13; Tr. p.140, 161)

2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R.” for Respondent’s exhibit;
“GC” for General Counsel’s exhibit; “GC Br.” for the General Counsel’s brief; and “R Br.” for Respondent’s
brief.
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Juan Valdez, owner of A & P Paper & Plastic Supplies (A & P), testified that his
company supplied Respondent with tortilla bags from October 2010 through March 2012. (Tr. p.
626.) He noted that the bags supplied to Respondent were purchased by his company from a
supplier in California. The documentary evidence establishes that A & P provided Respondent
with supplies totaling $6,286.40. (Tr. p. 626–630; GC Exh. 36.) Additionally, Respondent paid
life and property insurance premiums to American Family Insurance (AFI). AFI’s billing
statements were sent to Respondent from Wisconsin and Respondent in turn sent its premium
payments to Wisconsin. Respondent paid $5,028.40 in insurance premiums for the period at
issue. (GC Exh. 19, 20, 34.)
Respondent does not specifically dispute the dollar figures set forth above, but rather
contends the jurisdictional standard has not been met because FSI “marked up” the cost of the
products sold to Respondent. Under Respondent’s theory, the jurisdictional amounts should be
calculated based on the price FSI paid for the goods before selling them to Respondent. (R. Br.
p.16.) However, Respondent provides no case law and I can find none to support this argument.
I also reject Respondent’s argument that the period in which purchases from suppliers
other than FSI were made may not be considered because the “additional amounts the
government attempts to include are from a variety of different time periods that do not
correspond with the FSI evidence. To allow the government to include these additional amounts
would be to allow the government to base its discretionary dollar amount on a representative
period of time well beyond the 12 months allotted.” (R. Br. p. 18.) Even assuming that
Respondent’s argument has merit, the total dollar amount from FSI alone is sufficient to meet
the statutory and jurisdictional standards and is more than a de minimis amount. Clearly,
Respondent purchased and received more than $50,000 in products which originated outside of
the state of Arizona. Including the amounts from A & P and AFI, the evidence of record
establishes that more than the minimum jurisdictional amount has been met.
Accordingly, I find that Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. Supervisory and Agency Status of Adrian Olguin
The General Counsel alleges that Respondent’s son, Adrian Olguin (Adrian), is a
supervisor or, in the alternative, an agent of Respondent.3 However, Respondent disagrees
with this designation, asserting Adrian was merely a worker.
The burden of establishing supervisory status is with the party alleging that status. The
party asserting supervisory status must set forth specific facts which prove the existence of
supervisory authority. Under Section 2(11) of the Act, the status of supervisor is determined by
the duties performed and not the title or job classification. Section 2(11) defines a supervisor as
any person
having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to recommend such action, if …

3 Despite being subpoenaed by the General Counsel to testify at the hearing, Adrian Olguin did not
appear.
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such authority is not of a merely routine or clerical nature, but requires the use of
independent judgment.
The Act also provides that an individual who is an agent of the employer is, in effect, the
employer for purposes of assessing responsibility in matters over which the Board has
jurisdiction. The Board applies common law principles to determine if an individual possesses
apparent authority to act for an employer. In Comau, Inc., 358 NLRB No. 73, slip op. at 3
(2012), the Board listed the principles as (1) an indication by the principal to a third party that
creates a reasonable belief that the alleged agent has been authorized by the principal to act;
and (2) the principal intended or should have realized that its conduct is likely to create the third
party to believe the agent is authorized to act for the principal. See Pan-Oston Co., 336 NLRB
305, 305–306 (2001).
Adrian started his employment at the company in 2011. Adrian worked the production
line and assisted Respondent with the daily operations of the factory and store. When Olguin
was absent from the factory, Soto, Figueroa, and Pineda observed Adrian grant time off to
employees, schedule shifts, assign job tasks, resolve employee and customer complaints,
receive products from vendors, and resolve vendor disputes. (Tr. 353–356, 368–372, 453–466,
550, 553–561.) Olguin arrived at the factory at 7:00 a.m. to collect the tortillas produced on the
night shift and left soon after to deliver products to his customers. In his absence, Adrian
assigned Soto job tasks and addressed her workplace complaints. Soto observed Adrian
address customer complaints, operate the register in the retail store, sign vendor invoices,
accept mail, and compose the employees’ work schedules. (Tr. 553–556.) She was also aware
of Adrian changing the shifts of two employees, Eduardo and Donaeva (last names unknown).
Soto admitted that she would make requests for days off work to Olguin but also has, on
occasion, made the same requests to Adrian. (Tr. 557.) Likewise, Pineda observed Adrian
accept delivery of weekly supplies from vendors, requested days off from Adrian in Olguin’s
absence, and made workplace complaints to Adrian in Olguin’s absence. (Tr. 353–356.)
Figueroa observed Adrian address customer complaints, conduct inventory, and order supplies
from vendors. (Tr. 452–463.)
The evidence establishes that Adrian meets the statutory definition of supervisor. Adrian
was intimately involved in the daily management of the factory and workers. Olguin admitted
that he was infrequently at the factory and in his absence Adrian had the authority to resolve
“problems” that arose. (Tr. 21, 272.)4 Despite Respondent’s assertion that Adrian did not

4 Olguin testified that Adrian was not allowed to independently make decisions. He contended Adrian
had to consult with him each time he signed for a purchase order from a supplier or assigned workers’
schedules. Olguin stated Adrian and various other employees staffed the cash register. He agreed that
Adrian received and opened the mail but only if given permission by him. He denied that Adrian
independently made decisions to order supplies, but rather insisted Adrian had to call him to ask what
supplies should be ordered. According to Olguin, Adrian notified him of customer or employee complaints,
which he would resolve or tell Adrian how to resolve them. (Tr. 221–228, 232, 235–236, 238.) Olguin
also testified that Adrian was not allowed to interview or hire new workers. (Tr. 830–833) I do not credit
Olguin’s testimony that he did not allow Adrian independent authority to make decisions in the workplace.
Olguin acknowledged that he was frequently away from the factory making deliveries to customers. He
also admitted that if there was a “problem” at the factory while he was away, Adrian had the authority to
resolve the issues. (Tr. 21.) Soto, Figueroa, and Pineda credibly testified Adrian frequently made
managerial decisions without first consulting Olguin. Adrian provided no testimony or sworn affidavit
contradicting them on this point. Although coworkers Yolanda Gonzalez (Gonzalez), Jesus Arvizu
(Arvizu), Esmeralda Graciano (Graciano), and Marcos Arvizu (M. Arvizu) testified they did not perceive
Adrian to have supervisory status, they did not contradict the testimony of Soto, Figueroa and Pineda that
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exercise independent judgment in performing his job duties, the evidence is to the contrary.5
Adrian assigned employees’ daily tasks, changed employees’ shifts, mediated workplace
disputes, and instructed employees on the number of tortillas to produce daily. It should again
be noted that none of the witnesses contradicted the testimony of Soto, Figueroa and Pineda
that they observed Adrian perform these, and other, uniquely supervisory duties.
Adrian also meets the definition of an agent based on the apparent authority test. The
employees were aware of the familial connection between Olguin and Adrian. The Board has
held that family relationship is a factor to consider in determining apparent authority and when
viewed based on the totality of the record, may be sufficient to find agency based on apparent
authority. Laborers Local 270 (OPEIU Local 29), 285 NLRB 1026, 1028 (1987). Olguin used
Adrian to communicate his instructions to the employees. (Tr. 21-23, 221-238) Thus, intending
to cause the employees to believe that Respondent had authorized Adrian to oversee factory
operations and resolve employee concerns. He also testified that Adrian informed him of
“everything” because of the trust they had for each other. (Tr. 23) There is no evidence that
Olguin placed this type of unqualified trust to carry out his instructions in any employee other
than Adrian.
Based on Adrian’s role as Respondent’s “mouthpiece”, authority to interface with
customers, vendors, and employees to resolve to disputes, and Respondent’s admitted implicit
trust in Adrian as his son and confidante, I find that Soto, Figueroa, and Pineda would
reasonably believe that Adrian was reflecting the company policy and acting on behalf of
Respondent. See, Guille Steel Products Co., 303 NLRB 537, 539 (1991).
I find, therefore, that the evidence establishes Adrian meets the definition of a supervisor
and an agent as set forth in Sections 2(11) & (13) of the Act.
III. Alleged Unfair Labor Practices
1. Overview of Respondent’s Operation
As noted above, Respondent operates a tortilla production factory. The tortilla factory
operates 24 hours each day. Respondent also has a retail store in a portion of the building that
houses the tortilla factory. The retail store is open to the public from 8 a.m. to 8 p.m. (Tr. 450,
545). Respondent distributes and sells its products to businesses within the state of Arizona.
(GC 2; Tr. 34–35). The company employs approximately eight (8) tortilla production workers to
staff two shifts. The morning shift encompasses the hours of 4 a.m. to 4 p.m. and the evening
shift is from 4 p.m. to 4 a.m. Two of the eight employees work a weekend shift from Friday
through Monday to cover the days employees on the Sunday through Thursday shifts are not at
work. The evidence of record establishes that occasionally some workers are scheduled to start
at 6 a.m. for the morning shift or 2 p.m. for the evening shift.
_________________________
they observed him perform uniquely supervisory job duties.
5 Olguin attempted to minimize Adrian’s authority over the employees by testifying that in his absence
from the factory, he would often leave Benjamin Rodolfo (Rodolfo) or Alma Davila (Davila) in charge of
the facility. (Tr. 327–328.) However, I do not credit his testimony on this point. Neither employee provided
testimony to corroborate Respondent on this point. Further, Respondent was unsure if the tenure of their
employment corresponded to the time frame at issue. Finally, there was more persuasive and probative
testimony from Soto, Figueroa, and Pineda that Adrian (and not Benjamin or Davila) was most likely to
resolve issues and issue instructions in Respondent’s absence. I credit their testimony on this point. The
evidence establishes that many of the employees perceived Adrian to be a supervisor and have the
authority to speak on behalf of Respondent.
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The tortilla workers are responsible for working the production line to produce tortillas. A
normal shift produces 70 packages of tortillas an hour. Each package contains a dozen tortillas
for a total of 840 packages on both shifts. The production line consists of four stations:
“boleadora” (machine which creates the dough), “wheel” (machine which presses the dough into
a tortilla shape), griddle (cooks the dough), and packing area (the station used to package the
tortillas). During a fully staffed shift, a worker spends approximately ½ hour at a station per
hour. (Tr. 491–492, 808–810.)
Olguin is the owner, president, and manager of Respondent and has held those
positions since purchasing the business in approximately 2010. (Tr. 80, 83–85) Olguin is also
the sole member of the limited liability company.
Adrian worked from 8 a.m. to 6 p.m. and he oversaw the workers on the morning shift
and a portion of the evening shift. In Olguin’s absence from the factory, Adrian had the authority
to resolve employee and customer complaints. Olguin communicated instructions to the
employees through Adrian. Adrian approved employee shift changes, operated the retail store’s
cash register, received company mail, signed vendor invoices, and conducted inventory.
Soto first began working for Respondent as a tortilla production worker in mid-year 2009
until March 2010. She returned to the job in the summer of 2010 and worked until Davila, title
unknown, terminated her at the end of 2010. As a result of that termination, Soto filed a
complaint with the Human Rights Commission and was subsequently rehired a month later.
Upon her rehire in early 2011, she was assigned to the same shift she had worked prior to her
termination (4 a.m. to 4 p.m. Monday through Friday). Throughout her periods of employment
with Respondent, Soto was assigned to work from 4 a.m. to 4 p.m. Friday through Monday. (Tr.
549–550.)
Figueroa was hired by Respondent in February 2011 as a tortilla production worker.
She was assigned to work Friday through Monday from 4 a.m. to 4 p.m., except for four days in
August when she was assigned to the night shift to accommodate her mother’s illness. (Tr. 507–
508, 511–512.) Due to a dispute with Adrian about workplace conditions, on September 4,
2011, Figueroa and Pineda walked off the job. Subsequently, Respondent contacted her and
offered to rehire her into her former position. Figueroa agreed and Respondent rehired her in
approximately mid-September 2011. Figueroa was again assigned to work from 4 a.m. to 4
p.m. Friday through Monday. Approximately a week after she was rehired to work the day shift,
Respondent transferred her to the evening shift. (Tr. 514)
Pineda was employed with Respondent on three (3) separate occasions.6 He worked
for the tortilla factory in 2010 and 2011. He was employed with the Respondent approximately 8
months in 2010. In February 2011, Pineda returned to work at the tortilla factory with a
schedule of six (6) days a week from 4 a.m. to 4 p.m. (Tr. 353).
2. Workers’ complaints regarding workplace conditions
Beginning in the summer of 2011, Soto and other workers began to complain to each

6The record is unclear on the specific dates for the three separate periods Pineda was employed by
Respondent.
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other about malfunctioning equipment, excessive heat in the factory, lack of proper pay, and
workplace injuries, and workplace sexual harassment.
Workers’ Complaints about Wages
Soto and Figueroa on several occasions discussed Respondent’s failure to pay them
overtime. Figueroa, like Pineda and Soto, protested the lack of pay for overtime work. She
encouraged her coworker, Macario, to join her in telling “…Arturo [Olguin] to pay us the extra
hours that we were putting in so that we could — that way, we could make a little bit more
money.” (Tr. 485–486) Pineda also discussed with the Soto and Figueroa and complained to
Olguin about Respondent’s failure to pay them the legally mandated minimum wage or for
overtime worked. (Tr. 359–360) 7
Workers’ Complaints about Malfunctioning Equipment and Excessive Heat
During the summer, Soto, Figueroa, and Pineda began to complain among themselves
about the excessive heat inside the factory, compounded by the malfunctioning equipment. Soto
reported machine breakdowns to Respondent and discussed with her coworkers the physical
effects some of the machine malfunctions had on them. She noted that she and other
coworkers complained to management that faulty gas burners on the grill caused excessive
fumes resulting in headaches. (Tr. 557, 565–566.) Soto observed Pineda suffer an asthma
attack because a broken part on one of the machines caused excessive heat inside the factory.
Sotoreported the problem to Adrian but it was not fixed. Respondent was aware of employee
complaints regarding malfunctioning equipment and excessive heat inside the factory. Workers
also complained to Olguin about the broken extractor used to cool the equipment. In the
summer of 2011, the employees told him the extractor was not properly cooling the facility and
making it too hot. Olguin also acknowledged other instances of machine malfunctioning during
the period at issue, which he must have been informed about from his workers because,
according to his testimony, he spent little time in the factory. (Tr. 272–273.)8
In the summer of 2011, a machine malfunctioned causing it to become too hot inside the
factory for some of the workers, including Pineda. Pineda complained to Respondent that the
heat in the factory worsened his asthma and he heard other workers complain among
themselves about painful urination and peeling skin as a result of the heat. He asked
Respondent to resolve the uncomfortable working conditions. (Tr. 363–365.) Throughout the
summer, however, the heat inside the factory continued to exacerbate Pineda’s asthma and
make it physically uncomfortable for other workers.

7 Olguin testified that none of the employees complained to him about his failure to pay them
minimum wage or for overtime worked. I do not credit Olguin’s testimony on this point. Unlike the
charging parties, Olguin could not provide any corroborating evidence to refute the witnesses’ testimony
that they complained to him on several occasions about Respondent’s failure to provide them with
overtime pay or legally mandated minimum wage.
8Olguin claims not to recall which workers informed him of the malfunctioning equipment. Gonzalez
testified that she heard workers complain to Olguin about broken equipment but did not specify the
employees. Therefore, the only testimony that identifies with any specificity the individuals complaining to
him about faulty equipment are Soto, Figueroa, and Pineda. Therefore, I credit their testimony on this
point that they complained among themselves and to Respondent regarding excessive heat inside the
factory and the adverse physical effects they experienced.
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Workers’ Complaints about Workplace Injuries & General Working Conditions
Pineda discussed with Soto, Figueroa, and other workers steps management should
take to lessen workplace injuries. Pineda suffered injury and observed that other workers
injured themselves working on the machines because they were not provided with the proper
safety equipment. For example, while cleaning the wheels and blades on the equipment,
Pineda suffered burns to his arms and hands. He also noted that several of his coworkers
burned their hands and arms from cleaning the griddle. (Tr. 378–381) He told Adrian that
Respondent needed to purchase protective gloves for the workers to use to avoid getting
burned by the griddle. Respondent never purchased effective protective gloves. (Tr. 381–382)
Pineda discussed with his coworkers actions they could take to improve their working
conditions. He noted Respondent gave workers only one 15 minute break in a 12 hour work
day. After much discussion among them, Pineda and several coworkers asked Respondent for
a few extra minutes of break time. There is no evidence that Respondent acquiesced to their
demands. Pineda also complained to Respondent about the lack of drinking water for the
employees. (Tr. 383–384.)
Soto’s and Figueroa’s Complaints of Being Subjected to Sexual Harassment
Figueroa spoke with other coworkers about sexual harassment she was subjected to by
Adrian. She and Soto observed Adrian treat a female coworker, Lucia, more favorably in
granting absences from work because she allowed him to fondle her. (Tr. 471)9 Figueroa also
discussed with Soto that Adrian made sexual advances towards her, which she rejected. (Tr.
472-483) In addition to Soto, she also talked about Adrian’s behavior towards her with another
co-worker, Chella (last name unknown).10 Figueroa conversed with Pineda about the excessive
heat inside the factory, which caused them to get sick.
Soto encouraged Figueroa to complain to Olguin about the sexually harassing nature of
Adrian’s remarks and actions towards her in the workplace. Soto and Figueroa complained
among themselves the preferential treatment Adrian showed towards “Lucia” because “she
would allow him to grab everything and she would hide in the bathroom with him.” (Tr. 571.)
Other examples of Adrian’s sexually harassing behavior included, placing his hands towards
Soto’s breasts and commenting on their size and remarking on the size of Figueroa’s buttocks
and vagina. (Tr. 574–575)11

9 There was no testimony from Lucia or Adrian refuting Soto’s and Figueroa’s testimony on this point.
10 Although, Chella did not testify at the hearing and corroborate Figueroa on this point, I credit
Figueroa’s testimony because it is consistent with the totality of the evidence. Further, Respondent
presented no evidence to refute her on this point.
11 Olguin denied that Soto or Figueroa complained to him about Adrian sexually harassing them prior
to their filing a charge with the Arizona Attorney General’s Office of Civil Rights Division (AZ Attorney
General) in October 2011. Although Olguin denies knowledge of complaints about sexual harassment, I
do not find him credible on this point. Unlike the charging parties, Respondent was not able to provide
any persuasive corroborating testimony or other evidence to support his assertion that Soto and Figueroa
never complained to him about sexual harassment. Respondent provided testimony from Yolanda
Gonzalez, current employee, to support his assertion that he was unaware of allegations of sexual
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3. Soto’s shift change and subsequent termination
Approximately fifteen (15) days before July 3, Soto asked Respondent if she could be
absent from work that day because she wanted to go shopping for her children. She noted that
Olguin told her “to tell Adrian because he wasn’t in charge of the scheduling or time off.” (Tr.
576–577)12 Therefore, a few days prior to July 3rd, Soto told Adrian that Olguin instructed her to
ask him for permission to be absent from work on July 3. Adrian denied her request. Soto
again approached Olguin and asked to take July 3 off. It is undisputed that during this
conversation he allowed her to take July 3 as an authorized absence.
On July 4, 2011, Soto reported for duty at her normally scheduled time, 4 a.m., but a
coworker, Francisco, greeted her at the factory door and informed her she was not scheduled to
start work until 6 a.m. No one from the factory had called to notify her of the change. Adrian
was standing behind Francisco laughing at her while Francisco told her she could not come into
the facility until her start time of 6 a.m. (Tr. 579–580.) Soto waited outside the factory until 6 am
to begin work.
Later the same day (July 4) an argument occurred at the factory involving Soto,
Figueroa, and Adrian. The argument began when Adrian entered the factory stating, “…he
didn’t give a fuck if he was sued for sexual harassment”. (Tr. 581.) He continued to direct a
string of profanities towards her and Figueroa because of their complaints that he had subjected
them to unwanted sexual advances. A coworker, Betty (last name unknown) intervened and
told them to stop the argument because customers in the retail area could hear the shouting.
(Tr. 582) The argument ended and everyone returned to work. Thereafter, Soto finished her
shift and left work. The following Friday (July 7) she was scheduled to work her normal shift.
However, Soto was notified through her aunt that Respondent had changed her work shift from
4:00a.m to 4 p.m. to 2 p.m. to 4 a.m. (Tr. 582). Soto testified that she telephoned Olguin and, “I
told him not to change me over to the nightshift because the children’s father worked at night
and I wouldn’t have anybody to leave the children with.” (Tr. 583.) When he refused to change
his decision, she accused him of changing her shift in retaliation for the complaints of sexual
harassment she made against Adrian. According to Soto, Olguin leveled profanities at her and
hung up the phone. Soto did not return to work because there was no one at night to care for
her children, ages 5 and 11. (Tr. 584.) July 4, 2011, was her last day of employment with
Respondent.
Respondent insisted Soto was transferred to the afternoon shift because she was
engaged in excessive conversation with Figueroa. (Tr. 299.) He denied overhearing other
_________________________
harassment. Gonzales testified that she never witnessed Adrian making sexual remarks towards the
women at the factory but claimed to have observed Figueroa making sexual comments to Adrian. (Tr.
668–671.) However, she admitted that she “believe[d]” she worked with Soto on just two occasions. (Tr.
641.) Her limited contact with Soto, therefore, is insufficient to show that she was in a position to observe
in 2011 that Soto never made allegations of sexual harassment to Respondent. Furthermore, credible
corroborating testimony was provided by Pineda that he too witnessed Soto being sexually harassed by
Adrian and complained about it to Respondent.
12 Olguin testified that he did not know if Adrian denied her request to be absent from work on July
3
rd
. (Tr. p.308) I credit Soto’s testimony on this point. Except for Olguin’s one line denial, the evidence is
uncontradicted that Adrian refused her request for a one day leave of absence for July 3
rd
prompting her
to again ask Olguin to grant her request.
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workers discussing non work related issues. (Tr. 303–304) According to Respondent, the
productivity on the morning shift suffered because of the socializing between Soto and
Figueroa. (Tr. 817–818.)13
4. Figueroa’s and Pineda’s work stoppage due to staff shortage and their subsequent discharges
On September 4, 2011, Pineda, Figueroa, and Graceila (Fuentes) reported for the
morning shift at 4 am. However, after assessing the situation, they determined that with just
three workers reporting for duty, each one would have to spend too much time in the hottest
area of the factory, near the wheel and griddle. Pineda explained that with four workers, each
person spent a half hour on each rotation in the heat by the griddle and wheel. However, with
only three people working, each person had to rotate into the area for an hour each time. (Tr.
369.) Therefore, he called Adrian at 6 am to request that a fourth worker be sent to help them.
Adrian stated he would get a fourth person to assist them. They continued cooking the tortillas
while waiting for the fourth worker to arrive. At approximately 7 am, Pineda again called Adrian
because the fourth worker had not arrived. Pineda told Adrian, “That it was too hot and with
only three people that it was impossible to continue working without stopping throughout the
entire day.” (Tr. 371.) Adrian arrived at approximately 7:30 am and began yelling at the
workers to make tortillas. Pineda again complained to Adrian that they needed another worker
to help because they had been working short-handed for several days. Adrian told him they
would not get a fourth worker to assist them because the person he called would not answer the
phone. (Tr. 372–373.) Pineda and Adrian continued to argue about the need for a fourth worker
on the shift. (Tr. 372–373.) Finally, Adrian told him “Go to hell, you’re just a crybaby. Get the
hell out of here.” Pineda and Figueroa left the building. (Tr. 373.)14

13I do not credit Olguin’s testimony. Olguin claimed that he overheard Soto and Figueroa discussing
non-work related matters each time he went to the factory to pick up tortillas for delivery. Respondent
insisted Soto was transferred to eliminate her socializing with Figueroa and increase production on the
morning shift. Olguin was unable to produce documentation showing a decrease in productivity for the
period at issue. Olguin alleged production numbers were recorded on paper at the beginning of each
shift. He noted, “At 4 a.m., they had to leave me a note of how much was produced up until 4 a.m.” (Tr.
804, 806) He testified that at 7 a.m. he would “recount” the tortillas generated between 4 a.m. to 7 a.m.
daily to ensure the accuracy of the production count. At 8 p.m. nightly he also counted the tortillas
generated on the morning shift. (Tr. 804–807.) According to Olguin, the morning shift was producing 120
less packages of tortillas than normal. However, Respondent was unable to produce records or
corroborating testimony to support his defense on this point.
Second, Respondent’s argument that Soto and Figueroa were the only employees engaging in
conversation that was not work related strains credulity. By his own admission, Olguin testified that he
spent most of his time away from the factory delivering tortillas to customers. He testified, “I am never
there [the tortilla factory]. I am always working by delivering.” (Tr. 272) Therefore, his opportunity to
overhear the workers’ conversations was, by his own admission, extremely limited. If he indeed observed
Soto and Figueroa talking together, those occasions would have been infrequent. The infrequency of his
observation of charging parties’ engaging in non-work related conversation would not be sufficient to
justify his excuse that he transferred Soto because she was the sole reason for a decrease in production
numbers. Despite his insistence that other workers were not engaging in excessive nonwork related
conversations, I do not find him credible. When questioned about employees complaining to him about
broken equipment, he claimed he was in the factory infrequently but changed his testimony to note that
daily he overheard conversation between Soto and Figueroa because he was often in the factory. This
type of contradictory testimony weighs negatively on the overall credibility of his testimony.
14 I find Pineda’s testimony credible on this point. It was corroborated by a witness, Figueroa.
Continued
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Figueroa corroborated Pineda’s testimony regarding the events of September 4. She
told Adrian she could not work with just three workers because it made the job hotter and
harder.15 (Tr. 488.) Adrian told them, “That he wasn’t going to bring any fourth person, that if
we wanted to work, to work like that, and if not, to go to hell.”16 (Tr.495.) Shortly thereafter,
Figueroa and Pineda left the factory together because a fourth worker had not arrived.
5. Olguin telephones figueroa and Pineda after their walk out
Adrian called Olguin (who was in Mexico) to inform him that the morning shift was
missing a fourth worker and two other workers (Pineda and Figueroa) were threatening to leave.
Olguin told Adrian to find a fourth worker. According to Olguin, Adrian again called to notify him
that a fourth worker, Jesus Arvizu (Arvizu), had arrived to work. Therefore, Olguin instructed
Adrian to call Pineda and Figueroa to tell them they should return to work because he got a
fourth worker to help them. (Tr. 821–823)17
_________________________
Further, Adrian did not provide testimony and Respondent did not provide persuasive evidence to refute
Pineda on this point.
15 Pineda identified “Graciela” as the third worker present at the factory that day. However, Figueroa
identified the third worker as “Chella.” (Tr. 488.) The record is unclear if “Graciela” and “Chella” refer to
the same worker. The record establishes, nonetheless, that the parties agree that prior to Adrian’s arrival
at the factory; there were only three workers present.
16 The interpreter corrected her interpretation of la verga to note the proper translation is “To go fuck
off” and not “to go to hell.”
17 I do not credit Olguin’s testimony that a fourth worker was secured to assist the employees for the
remainder of the shift. Olguin admits that he does not know from first-hand observation if a fourth worker
ever appeared for work that day. (Tr. 823.) Respondent produced Arvizu to corroborate Olguin’s
contention that he got another worker to assist Figueroa and Pineda. Although, Arvizu testified he was the
“fourth worker” and arrived to work on September 4, 2011, at “7:00 or 8:00,” I find he woefully lacked
credibility. The majority of his testimony was accompanied by smirks, sarcasm, and evasion. He gave
intentionally deceptive and often confusing testimony. An example is Arvizu’s testimony that he had
worked for Respondent for the past two (2) to three (3) years and in 2011 he worked the entire year. He
claimed that in 2011, for approximately 1 to 2 months he worked the same shift with Soto and Figueroa.
On cross-examination, however, when presented with evidence of his 2011 incarcerations and
deportation he continued to provide evasive answers and never admitted that he could not have worked
for Respondent for all of 2011. Based on the documentation in evidence, Arvizu was incarcerated from
approximately March 18, 2011, to April 17, 2011, and again arrested in May 2011. After being confronted
with the documentation, Arvizu reluctantly admitted to being incarcerated for 30 days in March 2011 and
again in June 2011 before being deported to Mexico (GC Exh. 38–40). The record is devoid of evidence
showing when or if Arvizu was re-admitted to the country in 2011. During direct examination, Arvizu also
gave confusing, vague, and senseless responses to questions on direct and cross examination. For
example, Respondent attempted to use Arvizu to show that Adrian did not perform supervisory functions.
Arvizu was asked which management official he reported machine malfunctions and his response was he
“thinks” at some point in 2011 a machine broke and he “thinks” someone told Respondent about the
malfunction and he “thinks” Respondent fixed it. (Tr. 715.) His response was so riddled with ambiguity
and vagueness that it was useless. Most of his testimony consisted of this type of vague and
contradictory responses. Early in his testimony he stated that in 2011 he did not have any problems at
work. (Tr.713.) However, later in his testimony he proceeded to testify that in August 2011 he went to
Respondent to complain about a problem on the production line. (Tr. 749.) In addition to contradicting his
earlier testimony that he never experienced problems in the work place in 2011, it was previously noted
that there is no evidence to show when, after his deportation in approximately July 2011, he was
Continued
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Pineda testified that Olguin told him he did not know if a fourth worker had arrived at the
factory or if Adrian would be able to get a fourth worker to help them that day.18 He testified
Olguin told him, “…Adrian was going to fix that.” (Tr.444) Pineda and Figueroa insist that
management never informed them that a fourth person arrived at the factory to work. I find that
the weight of the evidence supports them on this point.19 Approximately an hour after Pineda
and Figueroa left the factory, Olguin telephoned Pinedea and instructed him to return to work or
he would be terminated. Olguin told Pineda, “…to go back to work because if not, I wasn’t
going to be working there anymore.” (Tr. 374.)20 Pineda did not return to the factory because
Respondent could not assure him to his satisfaction that a fourth worker had been procured to
assist them with the work. (Tr. 443–444.) Olguin also called Figueroa from Mexico at
approximately 9 a.m. the same day and told her if she did not return to work immediately she
would be fired. (Tr.496.) Figueroa responded to Olguin, “okay, that’s fine” and did not return to
work. (Tr. 497.)21
6. Respondent rehires Figueroa but a subsequent shift change results in her termination
Approximately two weeks after Figueroa walked out of the factory with Pineda, Olguin
called to ask her if she wanted to return to work. She agreed and was re-hired to work 4 a.m. to
4 p.m. from Friday to Monday. (Tr. 317–318, 497–498.) This is the schedule she had worked
throughout her employment with Respondent, except for a brief period when she worked the
evening shift at her request because her mother was ill. The Friday after she agreed to return to
_________________________
readmitted into the United States. (GC Exh. 38-340.) Therefore, it is impossible to credit his testimony
that in August 2011, he complained to Respondent about problems on the production line. Based on the
evasive, confusing, and vague responses he gave on both direct and cross-examination and his overall
demeanor, I find his testimony to be worthless and it fails to support Respondent’s defense. Furthermore,
Adrian did not appear for the hearing. Therefore, there is no testimony from Adrian corroborating the substance of
his conversation with Olguin or whether he was able to get a fourth person to work.
18 Olguin denied telling Pineda or Figueroa that Adrian was unable to get a fourth worker. He
insisted that Adrian got another employee to work and communicated that information to Figueroa and
Pineda. I find, however, that Figueroa’s and Pineda’s testimony is more credible on this point than
Olguin. Adrian did not provide testimony contradicting Pineda’s version of their argument about his failure
to get a fourth worker to assist them. Pineda also had corroborating testimony from Figueroa that Olguin
never assured them a fourth work had arrived and threatened them both with termination if they did not
immediately return to work. Olguin, by contrast, admitted he had no first-hand knowledge that a fourth
worker appeared to work for the period at issue, nor first-hand knowledge regarding the substance of
Adrian’s conversation with Figueroa and Pineda.
19 I credit Figueroa’s and Pineda’s testimony on this point. Olguin had not first-hand knowledge of
what information or if Adrian conveyed any information to Figueroa and Pineda about a fourth worker.
20 Olguin denied making this threat, but I do not credit him on this point. I carefully observed Olguin’s
and Pineda’s demeanors as they testified on this point. Pineda was poised, forthright, and composed.
His testimony was consistent; and he avoided evasive, vague, or combative responses. I found his
testimony overall and on this point specifically to be consistent with the evidence. There were no
contradictions on the material facts and a few slight variations regarding minor details. In contrast, Olguin
overall demeanor was of evasiveness and contradiction. He repeatedly had to be cautioned by his
attorney, me, and attorney for the General Counsel against giving nonresponsive answers. As I noted at
other points in the decision, Olguin gave several contradictory responses on material facts which
negatively reflects on his overall credibility.
21 I credit Figueroa’s testimony regarding the events of September 4 because she was consistent in
her statement of the events of that day, there is credible testimony corroborating her version of events,
and her overall demeanor adds to the credibility of her testimony.
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work, she reported for duty and worked the morning shift from Friday through Monday. Soon
after her return, Figueroa and Adrian had a disagreement regarding her packaging of several
tortillas. She noted, “He [Adrian] started unpacking the dozen pack tortillas that I had packed
because a client arrived asking for a three dozen pack.” (Tr. 499–500.) She complained to
Respondent because, according to her, that was not the proper procedure for making a three
(3) dozen package of tortillas. In response to her complaint Respondent replied, “That not even
he [Olguin] could control him [Adrian].” (Tr. 501.) The following Thursday she called
Respondent to ask if she should report to work the following day at 4 a.m. or 6. She called to
confirm her reporting time because, “…many times the nightshift finishes early, so then two
people show up at 4 in the morning to start getting the dough ready. Two other people will show
up around 6 in the morning to start getting the griddles and everything else going.” (Tr. 501.)
Respondent instructed her to report at 6 a.m. the following day. Later that same day, a
coworker, Macario, called to tell her that Adrian had changed her start time to midnight. She
told him Olguin scheduled her to report for work at 6 a.m. and that was the time she would
report for work. She went to work the next day at 6 a.m. but Arvizu shouted to her to go home
because Adrian had assigned her to work the evening shift. She tried several times to call
Olguin but he did not answer his phone. Eventually Adrian answered Olguin’s phone and told
her Olguin had changed her reporting time to 4 p.m. Olguin testified that he transferred Soto to
the evening shift because, “…I needed her in the evening because production was low, and she
knew how to do her job well...”22 (Tr. 321.) Soto again reminded him she could not work that
shift because she was unable to obtain childcare for her children at night. (Tr. 503–509) Olguin
refused to reverse his decision so Figueroa did not return to work. Olguin waited 2 days for
Figueroa to return to work before eventually hiring a replacement worker for her position. (Tr.
321)
IV. Discussion and Analysis
A. Legal Standards
Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7
of the Act. The rights guaranteed in Section 7 include the right “to form, join or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid
or protection.” See Brighton Retail, Inc., 354 NLRB 441, 441 (2009).
In Meyers Industries (Meyers 1), 268 NLRB 493 (1984), and in Meyers Industries
(Meyers II) 281 NLRB 882 (1986), the Board held that “concerted activities” protected by
Section 7 are those “engaged in with or on the authority of other employees, and not solely by
and on behalf of the employee himself.” However, the activities of a single employee in enlisting
the support of fellow employees in mutual aid and protection is as much concerted activity as is
ordinary group activity. Individual action is concerted if it is engaged in with the object of
initiating or inducing group action. Whitaker Corp., 289 NLRB 933 (1988). A conversation can
constitute concerted activity when “engaged in with the object of initiating or inducing or
preparing for group action or [when] it [has] some relation to group action in the interest of the
employees.” Meyers II, supra, 281 NLRB at 887 (quoting Mushroom Transportation Co., 330
F.2d 683, 685 (3rd Cir. 1964)). The object of inducing group action, however, need not be

22 Again, I do not find Olguin’s denial credible. He “conveniently” failed to produce the documentation
which allegedly shows there was a significant decrease in production on the evening shift.
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expressed depending on the nature of the conversation. See Sabo, Inc., 359 NLRB No. 36, slip
op. at 4–5 (2012).
An employer violates Section 8(a)(1) of the Act if it disciplines or discharges an
employee for engaging in activity that is “concerted” within the meaning of Section 7 of the Act.
If it is determined that the activity is concerted, a violation of Section 8(a)(1) will be found if the
employer knew of the concerted nature of the employee’s activity, the concerted activity was
protected by the Act, and the adverse employment action was motivated by the employee’s
protected, concerted activity. Relco Locomotives Corp., 358 NLRB 1 (2012) (citing Meyers
Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB 755 F.2d 941 (D.C.
Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988)). Once
the General Counsel establishes such an initial showing of discrimination, the employer may
present evidence, as an affirmative defense, showing it would have taken the same action even
in the absence of the protected activity. The General Counsel may offer evidence that the
employer’s articulated reasons are pretext or false. Relco, supra.
As with 8(a)(3) discrimination cases, the Board applies the Wright Line23 analysis to 8(a)
(1) concerted activity cases that involve an employer’s motivation for taking an adverse
employment action against employees. Sabo, Inc., supra; Saigon Gourmet Restaurant, Inc., 353
NLRB 1063, 1065 (2009). The burden is on the General Counsel to initially establish that a
substantial or motivating factor in the employer’s decision to take adverse employment action
against an employee was the employee’s union or other protected activity. In order to establish
this initial showing of discrimination, the evidence must prove: (1) the employee engaged in
concerted activities; (2) the concerted activities were protected by the Act; (3) the employer
knew of the concerted nature of the activities; and (4) the adverse action taken against the
employee was motivated by the activity. Once the General Counsel has met its initial showing
that the protected conduct was a motivating or substantial reason in employer’s decision to take
the adverse action, the employer has the burden of production by presenting evidence the
action would have occurred even absent the protected concerted activity. The General Counsel
may offer proof that the employer’s articulated reason is false or pretextual. Sabo, Inc., at 5.
Ultimately, the General Counsel retains the ultimate burden of proving discrimination. Wright
Line, id. However, where “the evidence establishes that the reasons given for the Respondent’s
action are pretextual—that is, either false or not in fact relied upon—the Respondent fails by
definition to show that it would have taken the same action for those reasons, absent the
protected conduct, and thus there is no need to perform the second part of the Wright Line
analysis.” Golden State Foods Corp., 340 NLRB 382, 385 (2003) (citing Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982)). The Wright Line analysis is
not applicable when there is no dispute that the employer took action against the employee
because the employee engaged in protected concerted activity.
B. July 4, 2011 Transfer of Mariela Soto and Subsequent Termination24
The General Counsel alleges that on July 7, 2011, Respondent transferred Soto to a
different work shift, thus causing her termination because she engaged in concerted protected

23251 NLRB 1083, 1089, (1980) enfd. 662 F.2d 899 (1
st
Cir. 1981), cert denied 455 U.S. 989 (1982).
24 Although the General Counsel phrases the issue as a termination, it is clear from Respondent’s
answer to the complaint, both parties’ posttrial briefs, and the evidence that the alleged charge is a
constructive discharge. Therefore, I have analyzed the issue of the “termination” as a constructive
discharge.
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activity.
Soto’s Transfer to a Less Desirable Shift
In order to sustain its initial burden of proof, the General Counsel must first prove that
Soto’s protected activities were the substantial or motivating factor in Respondent’s decision to
transfer her. Upon such a showing, Respondent then must present evidence that it would have
transferred Soto even absent the protected concerted activity. See Correctional Medical
Services, 356 NLRB No. 48, slip op. at 2.
The evidence established that Soto engaged in concerted activities when she voiced
complaints to coworkers and Respondent about the working conditions in the plant (excessive
heat, broken equipment, lack of protective gear, inadequate pay, and sexual harassment). Her
actions were clearly an attempt to protect her and other workers from what she perceived to be
unsafe and unfair working conditions. The Board has held concerted activity includes
“circumstances where individual employees seek to initiate or to induce or to prepare for group
action” and where an individual employee brings “truly group complaints to management’s
attention.” Myers II, 281 NLRB at 887. Soto’s complaints and acts are the epitome of concerted
activity.
In addition, she complained to and worked with Figueroa, Pineda and other coworkers in
an effort to convince Respondent to pay them the minimum wage required by law and provide
them with the overtime pay to which they were entitled. (Tr. 358–361, 564–565.) In Sabo, Inc.,
supra, 359 NLRB at 3, the Board held that wage discussion is “inherently concerted” activity.
See Automatic Screw Products Co., 306 NLRB 1072, 1072 (1992), enfd. mem. 977 F.2d 582
(6th Cir. 1992).
I find that the evidence establishes Respondent had knowledge of the concerted
activity. As previously discussed, I do not find credible Respondent’s testimony that neither the
charging parties or any other worker complained to him about improper wage payment and lack
of overtime pay. Also, Olguin admitted that workers complained to him regarding equipment
failures and the excessive heat generated by some of the equipment malfunctions. (Tr. 266–
268.) Olguin did not persuasively rebut Soto’s testimony that she brought such complaints to
his attention. Sabo, Inc., at 4; Aroostook County Regional Opthalmology Center, 317 NLRB 218,
220 (1995) enfd. denied on other grounds 81 F.3d 209 (D.C. Cir. 1996).
Next, I find that Soto’s complaints to coworkers and Respondent about wages,
workplace sexual harassment, and workplace induced illnesses meet the Act’s definition of
protected activity. In White Oak Manor, 353 NLRB 83 (2009), the Board continued its precedent
of holding that Section 7 protects activity unrelated to union organizing. Employee complaints of
sexual harassment in the workplace and workplace hazards have been held by the Board as
protected. Board law is also clear that wage discussions, as in this case, is “inherently
concerted” and protected because it is likely “to spawn collective action.” Sabo, Inc., at fn.11
(quoting Aroostook County, supra.).
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The remaining question is whether Respondent transferred Soto because of
discriminatory animus. It is clear that there was tension and hostility between Soto and Adrian.
It has also been established that Soto repeatedly complained, individually and in concert with
other employees, about Adrian’s behavior to Olguin. It is not unreasonable to infer from the
evidence that her repeated complaints to the owner of the company (Olguin) about his son and
supervisor (Adrian) would engender animus against her. It has also been established that at
least several days prior to her transfer, Olguin knew she had small children. Thus,
management’s hostility towards her combined with its knowledge of her childcare concerns
strongly indicates that the transfer was made to retaliate against her for exercising her Section 7
rights. The timing of her transfer occurring within days of Adrian’s profanity laced outburst
against her for complaining to Olguin about his sexually harassing conduct also establishes a
strong inference discriminatory animus was a motivating factor in Respondent’s decision to
transfer her to the evening shift. Accordingly, I find that the General Counsel met his initial
burden of showing discriminatory motive.
I also find that Respondent has not met its burden of showing that the transfer would
have taken place even in the absence of the protected conduct. See Wright Line, supra, 251
NLRB at 1089; Camaco Lorain Mfg. Plant, 356 NLRB No. 143, slip op. at 3–4 (2011) (discharge
violated Section 8(a) (1) because respondent failed to meet Wright Line rebuttal burden).
Respondent argues that it transferred Soto to the evening shift because her performance
on the morning shift was poor. Olguin complained that that he had to separate Soto and
Figueroa from working together because they socialized too much and did not work quickly
enough, thus causing a drop in the morning production numbers. (Tr. 299–304, 812–813, 817–
818.) He produced, however, only unsubstantiated assertions. It again must be emphasized
that despite Olguin’s testimony regarding his detailed daily production count for each shift, he
was unable to produce records or corroborating testimony to support his contention that he had
to transfer Soto to increase her productivity and “normalize” production on the morning shift. (Tr.
299, 301-304, 817- ) Thus, I find that Respondent’s transfer of Soto from the morning shift to the
afternoon shift violates Section 8(a)(1) of the Act.
Respondent Constructively Discharged Soto
The General Counsel alleges that Respondent, in retaliation for Soto’s concerted
protected activity, transferred her to the evening shift to force her to resign. The Board has
articulated two theories for analyzing actions involving constructive discharge. The test for
determining if a constructive discharge falls under the “traditional” theory is if the employer has
deliberately made the working conditions unbearable and it is established (1) the burden placed
on the employee was caused or intended to cause the employee to resign; and (2) the burden
was imposed because of the employee’s protected activity. The “Hobson’s Choice” theory
occurs when the employee voluntarily resigns because the employer conditions continued
employment on the employee’s relinquishment of Section 7 rights. Intercom 1 (Zercom), 333
NLRB 223 (2001); Engineering Contractors, Inc., 357 NLRB No. 127 (2011).
I find that Respondent knew or should have known that its transfer of Soto to the
evening shift would result in an untenable situation for Soto. Olguin admitted he was aware
Soto had children. He also acknowledges that when she was notified of her reassignment to
the afternoon shift, she explained to him she could not work it because she did not have child
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care for her children. (Tr. 305) Olguin never produced evidence that her excuse was false or
asserted that he disbelieved her explanation. Despite Soto’s pleas against the change,
Respondent insisted on transferring her to a shift he knew she could not work. In a case similar
to the fact pattern at issue, the Board found that refusing to grant an employee’s request to
transfer shifts because she could not afford childcare to accommodate a different shift
constituted constructive discharge because the employer knew and should have reasonably
foreseen, that refusing the shift transfer would force the employee to resign. American Licorice,
Co., 299 NLRB 145, 148–149 (1987). See also, Baker, Harold W., Co., 71 NLRB 44, 60–61
(1946). Second, it must again be noted that the timing of her transfer occurring within days of
Adrian’s profanity laced outburst against her for complaining to Olguin about his sexually
harassing conduct also establishes a strong inference that discriminatory animus was a
motivating factor in Respondent’s decision to transfer her to the evening shift, thus resulting in
her discharge. I find the evidence establishes that Respondent deliberately chose an
employment action to take against Soto that it knew would make her working conditions so
unbearable that she would be forced to resign.
Based on the totality of the evidence, I find that Respondent transferred Soto thus
causing her termination in violation of Section 8(a)(1).
C. Respondent’s Illegal Threat to Discharge of Figueroa and Pineda for Engaing in a Work Stoppage
The General Counsel alleges that on or about September 4, 2011, Respondent, through
Olguin, threatened its employees with discharge because they stopped working concertedly and
engaged in a strike. The test for a violation of Section 8(a)(1) is whether, considering of all the
circumstances, the employer’s conduct or statements had a reasonable tendency to restrain,
coerce, or interfere with employees’ rights guaranteed by Section 7 of the Act. Mediplex of
Danbury, 314 NLRB 470, 472 (1994).
The General Counsel argues Figueroa and Pineda engaged in a “classic” work stoppage
protected by the Act when they walked off the job to protest the lack of a fourth worker on the
shift and the excessive heat in the factory. Therefore, according to the General Counsel,
Respondent’s threats to terminate Figueroa and Pineda if they did not return to work are a
violation of Section 8(a) (1) of the Act. Respondent denies Pineda and Figueroa were
threatened with termination if they did not return to work during their work stoppage.
I find that Pineda’s and Figueroa’s work stoppage on September 4 constitutes concerted
protected activity. Post Tension of Nev., Inc. 352 NLRB 1153 (2008). The evidence is
uncontradicted that for the period at issue the shift was short staffed and the factory was
excessively hot for those working that day. There is no persuasive evidence that either Pineda
or Figueroa would have walked off the job but for the inadequate staffing level and heat at the
factory. The record shows that these two factors were the direct cause of the walkout. In Magic
Finishing Co., 323 NLRB 234 (1997), the Board found a violation of the Act where three (3)
employees left the job to protest unbearably hot working conditions. Likewise, Pineda and
Figueroa walked off the job after repeatedly complaining to Respondent that they needed
additional staffing to complete their work because it was too hot to work at the current staffing
levels. See also, NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).
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Respondent denies that Figueroa and Pineda were threatened with termination if they
did not immediately return to work after their walk out. As previously discussed, I do not find
credible Olguin’s testimony that he did not threaten to terminate Figueroa and Pineda because
they walked off of the job to protest inadequate staffing and excessive heat in the factory.
Earlier in the decision I detailed my reasons for finding Figueroa and Pineda were more credible
than Olguin on this point based on their overall demeanor. Furthermore I credit Pineda’s
testimony because it is consistent within the context in which it occurred. It is uncontradicted
that the morning shift was short staffed; the lack of a fourth worker required working longer in
the hottest area of the factory; and Adrian told the workers they would have to work short staffed
or leave the premises. (Tr. 372–373) There is no evidence refuting Pineda’s and Figueroa’s
testimony that Pineda repeatedly questioned Adrian and Olguin about giving them assistance
that day. Figueroa corroborated Pineda’s testimony on this point. While each made statements
that the other did not, there were no contradictions on the material facts and only slight
variations regarding minor details. These are slight variations one would expect in witnesses’
observations. Within that context it is credible that Olguin, like Adrian had earlier, threatened
them if they did not cease their work stoppage and return to work. Further, I found Pineda’s
overall demeanor to be a consistently credible throughout his testimony. He maintained an
even tone, refrained from smirks, evasive responses, and vague or combative responses.
Figueroa also credibly testified that Olguin called her within a few hours of her walk out
and threatened her with termination if she did not immediately return. I also credit her testimony
on this issue because of her overall demeanor and the consistency of her testimony. Her
testimony is credible because there is evidence that she had been complaining with other
workers and to Olguin throughout the summer that the factory was excessively hot and causing
workers to become ill. There is uncontradicted evidence that she and Pineda had been working
short staffed for several days prior to their work stoppage. Again, the overall context of the
situation makes it more probable than not that during his call to Figueroa; Olguin threatened her
with discharge if she did not return to work. In addition, I find Figueroa was a credible witness
because she avoided histrionics, provided concise and consistent responses, and refrained
from tailoring her responses in a light she may have thought was most helpful to the General
Counsel’s case.
In Central Valley Meat Co., 346 NLRB 1078 (2006), the Board held that threatening
employees with termination for engaging in a protected work stoppage violates Section 8(a)(1)
of the Act. Pineda and Figueroa were subject to such an attempt when Respondent threatened
them with termination in retaliation for engaging in a protected work stoppage. I therefore find
that Respondent’s threat to terminate employees Figueroa and Pineda if they did not return to
work following a protected work stoppage violated Section 8(a)(1) of the Act.
G. September 4, 2011 Discharges of Figueroa and Pineda
The General Counsel alleges Respondent subsequently discharged Figueroa and
Pineda in retaliation for engaging in protected concerted activity. The Wright Line standard
governs whether they were discharged in violation of 8(a)(1).
The General Counsel must first prove, by a preponderance of the evidence, that the
employees’ protected conduct was a motivating factor in Respondent’s decision to discharge
them. The General Counsel satisfies this burden by showing that Figueroa and Pineda
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engaged in protected concerted activity when they participated in a work stoppage; Respondent
has knowledge of the work stoppage; and Respondent had discriminatory animus towards their
protected activity. Circumstantial evidence may be used to show animus. Camaco Lorain
Manufacturing Plant, 356 NLRB No. 143 slip op. at 4 (2011).
I have previously discussed and found that the work stoppage constituted concerted
protected activity and Respondent was aware of it. Respondent denies discriminatory animus
towards the employees’ protected activity. Respondent argues Figueroa and Pineda voluntarily
quit; and their walk out ceased to be protected activity once they refused to return to work after
being informed that the staffing shortage had been resolved.25 (R. Br. 33–34). However, I find
Respondent discharged Figueroa and Pineda. Moreover, I find Respondent would not have
taken that action absent them engaging in concerted protected activity.
The employer is responsible for creating an atmosphere, through words or actions, of
uncertainty for employees regarding their employment status. The judge must make a
determination “from the perspective of the employees” and that determination is based on
“whether the employer’s statements or conduct would reasonably lead the employees to believe
that they had been discharged.” NLRB v. Hilton Mobile Homes, 387F.2d 7, 9 (8th Cir. 1967). See
Brunswick Hospital Center, 265 NLRB 803, 810 (1982).
Adrian’s conduct upon his arrival at work September 4 would be sufficient to reasonably
lead Figueroa and Pineda to believe they would be discharged if they did not continue to work
despite their concerted complaints about the staffing shortage and excessive heat. From the
perspective of the employees, his status as Respondent’s supervisor and agent would also
reasonably cause them to believe they would be discharged if they engaged in a work
stoppage. In response to their complaints about working short staffed and in excessive heat,
Adrian leveled profantities at them, stated a fourth worker would not be coming, and told them to
“Get the hell out of here.” (Tr. 372–373.) He also told them if they were not willing to work short
staffed and in the excessive heat then “To go fuck off.” (Tr. 495.) Olguin reinforced this
message when he told Figueroa and Pineda that regardless of the status of the staffing
shortage and other complaints, they would be fired if they did not immediately return to work.
From the perspective of the employees, I find Adrian’s and Olguin’s statements would
reasonably lead them to believe that they had been discharged and were in fact discharged.
The Respondent’s animus against Figueroa’s and Pineda’s concerted protected activity is
evidenced by Olguin’s threat to discharge them if they did not cease their protected work
stoppage. The timing of the discharges, essentially simultaneously with the threat, supports a
finding of that discriminatory animus motivated the adverse employment actions.
The General Counsel has made an initial showing of discrimination, therefore the burden
shifts to Respondent to show that it would have terminated Pineda and Figueroa even absent
the protected activities. However, the Respondent fails to advance a nondiscriminatory reason
for its action, other than to insist the employees were not terminated but rather voluntarily quit.
As I previously addressed in the decision, this argument fails.

25 I reject this argument. Earlier in the decision I discussed in detail my rationale for finding Figueroa
and Pineda were not informed that the staffing shortage and excessive heat in the factory had been
resolved.
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Based on the totality of the evidence of record, I find that the General Counsel has
established that Respondent discharged Pineda and Figueroa for engaging in concerted
protected activities in violation Section 8(a)(1) of the Act.
F. Mid-September 2011 Transfer and Termination of Figueroa
In mid-September 2011, Respondent rehired Figueroa. The General Counsel alleges
that upon her re-hire and initial assignment to the day shift, Respondent subsequently
transferred Soto to a different work shift, thus causing her termination because she engaged in
concerted protected activity.
I find that the General Counsel has failed to establish that the reassignment of Figueroa
to a different work shift, thus causing her termination violated Section 8(a)(1) for the reasons
discussed below
The General Counsel posits that upon her rehire (mid-September), Figueroa continued
her concerted protected activity when she complained to Respondent that Adrian unpacked nine
bags of tortillas that she had previously packaged. The General Counsel argues this action is
protected concerted activity because it is evidence that Respondent feared she would continue
to be outspoken and agitate for workplace rights on behalf of herself and the other workers. (Tr.
498–501; GC Br. 25.) I find, however, that clearly the complaint about Adrian unpacking her
previously packaged tortillas is not concerted protected activity. There is no persuasive
evidence to prove that her complaint was done for the mutual aid or protection of herself and
other employees. It was an individual complaint in attempt to resolve a workplace dispute for
the benefit of one person, Figueroa. The General Counsel failed to articulate a strong argument
or provide case law to establish that this incident constitutes protected activity. The General
Counsel could possibly overcome this deficit by presenting persuasive evidence that, upon her
return, Respondent continued to harbor discriminatory animus against Figueroa such that her
transfer and subsequent termination were motivated by her prior concerted protected activity
(activity that occurred before her discharge on September 4). However, the record is devoid of
such evidence. The record contains minimal testimony or other evidence to support the
General Counsel’s case on this issue.
Based on the totality of the evidence of record, I find that Respondent did not violate
section 8(a)(1) when Figueroa was transferred to the evening shift resulting in her termination.
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Adrian Olguin is a supervisor and an agent of Respondent within the meaning of
Section 2(11) and 2(13) of the Act.
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3. By discriminatorily transferring employee Mariela Soto on July 7, 2011, from the day
shift to the night shift because of her concerted protected activities, which caused her
termination, Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
4. By discriminatorily threatening Alan Pineda and Anahi Figueroa with termination
because of their concerted protected activities, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
5. By discriminatorily discharging employees Alan Pineda and Anahi Figueroa on or
about September 4, 2011, because of their concerted protected activities, Respondent has
engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
6. Other than specifically found herein, Respondent has engaged in no other unfair labor
practices.
Remedy26
In finding that the Respondent, Don Chavas, LLC d/b/a Tortillas Don Chavas, has
engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I will
recommend that Respondent be ordered to cease and desist and to take certain affirmative
action to effectuate the policies of the Act.
Because I have found that Respondent unlawfully transferred employee Mariela Soto to
the night shift resulting in her termination, I will recommend that Respondent be ordered to
reinstate Mariela Soto on the day shift (4 a.m. to 4 p.m.). Because I have found that
Respondent unlawfully discharged employees Alan Pineda and Anahi Figueroa, I will
recommend that Respondent be ordered to reinstate both employees to the shifts they were
assigned to (4 a.m. to 4 p.m.) before the discriminatory action. I also recommend that all three
employees be made whole for any loss of earnings and benefits they suffered as a result of the
discrimination against them from the date of the discrimination to the date of their reinstatement
as provided in F.W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in New
Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010) enf. denied on other grounds sub.
nom., Jackson Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011). Respondent shall file a
report with the Social Security Administration allocating backpay to the appropriate calendar
quarters. Respondent shall also compensate the discriminates for the adverse tax
consequences, if any, of receiving one or more lump-sum backpay awards covering periods
longer than 1 year, Latino Express, Inc., 359 NLRB No. 44 (2012).

26 Respondent argues that the complaint must be dismissed if it is determined that the Charging
Parties are undocumented aliens because the Board lacks the power to order backpay and reinstatement
to undocumented aliens. (R. Br. 36.) The employee’s immigration status and “its effect on the remedy are
left for determination at the compliance stage of the case.” See Tuv Taam Corp., 340 NLRB 756, 759–
761 (2003).
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On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended27
Order
The Respondent, Don Chavas, LLC d/b/a Tortillas Don Chavas, its officers, agents,
successors, and assigns shall
1. Cease and Desist from
(a) Discharging or constructively discharging its employees due to their engaging
in concerted protected activities.
(b) Threatening to discharge its employees for engaging in concerted protected
activities.
(c) Transferring to less desirable shifts its employees for engaging in concerted
protected activities.
(d) In any like or related manner interfering with, restraining, 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 purposes
and policies of the Act.
(a) Within fourteen (14) days from the date of the Board’s Order, Respondent
must offer Mariela Soto, Alan Pineda, and Anahi Figueroa full reinstatement to their
former jobs or, if any of those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privileges previously enjoyed.
(b) Make Mariela Soto, Alan Pineda, and Anahi Figueroa whole for any loss of
earnings and other benefits suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.
(c) Within fourteen (14) days from the date of the Board’s Order, Respondent
must remove from its files any reference to the unlawful discharge and constructive
discharge of Mariela Soto, Anahi Figueroa, and Alan Pineda and within three (3) days
thereafter notify the employees in writing that you have taken this action that the
discharges will not be used against them in any manner, including but not limited to, as a
basis for future personnel action against them, or referred to in response to any inquiry
from any employer, employment agency, unemployment insurance office, or reference
seeker, or otherwise used against them.
(d) Within fourteen (14) days, preserve and, on request, make available to the
Board or its agents for the examination and copying, all payroll records, social security

27 If no exceptions are filed as provided in Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended order shall, as provided in Sec.
102.48 of the rules, be adopted by the Board and all objections to them shall be deemed waived
for all purposes.
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payment records, timecards, personnel records and reports, and all other records
necessary to analyze the amount of back pay due under the terms of this Order.
(e) Within fourteen (14) days after service by the Region, post at Respondent’s
Tucson, Arizona tortilla facility and all its other factories (if applicable) in the State of
Arizona, in both English and Spanish a copy of the attached notice marked “Appendix.”28
Copies of the notice, on forms provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the
facilities involved in these proceedings, or sold the business or the facilities involved
herein, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any
time since July 7, 2011.
(f) Within Twenty-One (21) days after service by the Regional, file with the
Regional Director a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. February 15, 2013
____________________
Christine E. Dibble
Administrative Law Judge

28 If this Order is enforced by a judgment of the United States Court of Appeals, the words in the notice
reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read “POSTED
PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the National Labor
Relations Act and has ordered us to post and abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge or constructively discharge you because you engage in
concerted work stoppage.
WE WILL NOT threaten to discharge you for engaging in concerted protected activities.
WE WILL NOT transfer you to a different work shift because you engaged in concerted
protected activities.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our
employees in the rights guaranteed to them by Section 7 of the National Labor Relations
Act.
WE WILL, within Fourteen (14) days from the date of the Board’s Order, offer Mariela
Soto, Alan Pineda, and Anahi Figueroa full reinstatement to their former jobs or, if any of
those jobs no longer exist, to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed and WE WILL make them
whole for the wages and benefits they los, plus interest, as a result of our unlawful
conduct.
WE WILL, within Fourteen (14) days from the date of the Board’s Order, remove from
our files any reference to the unlawful discharge and constructive discharge of Mariela
Soto, Anahi Figueroa, and Alan Pineda and within Three (3) days thereafter WE WILL
notify the employees in writing that we have taken this action that the discharges will not
be used against them in any manner, including but not limited to, as a basis for future
personnel action against them, or referred to in response to any inquiry from any
employer, employment agency, unemployment insurance office, or reference seeker, or
otherwise used against them.
DON CHAVAS, LLC d/b/a TORTILLAS DON CHAVAS
(Employer)
DATED: __________ BY__________________________________________
(Representative) (Title)
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The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 N. Central Ave. – Suite 1400
Phoenix, AZ 85004
Hours: 8:30 a.m. to 5:00 p.m.
505-248-5128
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 513-684-3750.