Flying Foods

National Labor Relations Board - Board Decisions

Aug 25, 2005

345 N.L.R.B. 101 (N.L.R.B. 2005)

FLYING FOODS
345 NLRB No. 10
101
Flying Foods Group, Inc. d/b/a Flying Foods and Ho-
tel Employees Restaurant Employees Interna-
tional Union Local 355, AFL–CIO. Cases 12–
CA–21462, 12–CA–21465, 12–CA–21505, 12–
CA–21572, 12–CA–21662, and 12–CA–21677–1
August 25, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 24, 2002, Administrative Law Judge
John H. West issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The General
Counsel filed an answering brief and the Respondent
filed a reply brief. The General Counsel also filed a lim-
ited exception to which the Respondent filed an answer-
ing brief.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions only to the extent consistent with
this Decision and Order.3

1 There were no exceptions to the judge’s finding that employee An-
gel Sanchez was not a supervisor under Sec. 2(11) of the Act. There
were also no exceptions to the judge’s dismissals of the allegations that
the Respondent violated Sec. 8(a)(3) and (1) by disciplining employee
Luis Hurtado and violated Sec. 8(a)(1) by: (1) threatening employees,
through the Respondent’s human resources manager, Daysma Grana,
with discharge if they contacted the Union or the Board about discipli-
nary issues; (2) threatening, through employee Dario Mazier, to with-
hold wage increases from employees; (3) promising, through Mazier, a
wage increase if employees decertified the Union; (4) informing em-
ployees, through Supervisor Rene Largaespada, that a wage increase
was a reward for decertifying the Union and that the Union was re-
placed with an employee group; and (5) threatening employees, through
Supervisor Nelson Nunez, with discharge for their support of the Un-
ion.
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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
3 We shall also substitute a new notice to conform it to the language
of the Order and in accordance with our decision in Ishikawa Gasket
America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir.
2004).
Most of the General Counsel’s witnesses testified through an inter-
preter and the record indicates that many of the Respondent’s employ-
ees do not speak English fluently. Because many unit employees are
not native English speakers and may have difficulty understanding a
notice posted in English, we shall order that the Respondent post the
I. INTRODUCTION
This case primarily concerns the Respondent’s conduct
during the final stages of negotiating an initial collective-
bargaining agreement and its subsequent withdrawal of
recognition from the Union on April 18, 2001. The judge
found, among other things, that the Respondent violated
Section 8(a)(5) and (1) by withdrawing recognition from
the Union and by making subsequent unilateral changes
in employees’ terms and conditions of employment. We
agree with these findings for the reasons set forth below.
We also agree with the judge that the Respondent’s uni-
lateral wage increase violated Section 8(a)(3), and that
the Respondent committed several violations of Section
8(a)(1).
We find, however, in disagreement with the judge, that
the Respondent did not violate Section 8(a)(1) by failing
to make a wage proposal during the negotiating sessions
on January 31 and March 28, by soliciting employees to
sign a disaffection petition, or by showing its new em-
ployees a video informing them of their choice not to
sign a union authorization card. We also disagree with
the judge’s finding that the Respondent violated Section
8(a)(5) and (1) by failing to bargain in good faith with
the Union between January 31 and April 18. Accord-
ingly, we shall dismiss these complaint allegations.
II. BACKGROUND FACTS
The relevant factual background is set forth in full in
the judge’s decision and briefly summarized here. After a
Board-conducted election, the Union was certified as the
employees’ collective-bargaining representative on
March 29, 2000. The parties began negotiations for an
initial contract in May 2000 and agreed to resolve all
noneconomic issues before discussing wages.
By the end of January 2001,4 the parties had agreed on
most noneconomic issues. Because the Respondent had
not raised the employees’ wage scale since the Union’s
organizational campaign began in July 1999, the Union
wanted to start negotiations on economic issues as soon
as bargaining on noneconomic issues was complete. Ad-
ditionally, employees’ growing impatience with the pro-
gress of negotiations on wages sharpened the Union’s
desire to discuss wages. Accordingly, at the January 31
bargaining session, the Union submitted a wage proposal
and requested bargaining on wages. In response, the Re-
spondent stated that its financial situation was so precari-
ous that it could not make a wage proposal acceptable to

notice to employees in both English and Spanish. Erie Brush & Mfg.
Corp., 340 NLRB 1386, 1387 fn. 3 (2003), enfd. 406 F.3d 795 (7th Cir.
2005); Streicher Mobile Fueling, Inc., 340 NLRB 994, 996 fn. 6
(2003), enfd. 2005 WL 1395063 (11th Cir. 2005).
4 All dates refer to 2001, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD102
the Union. The Respondent suggested that the Union
conduct an audit of the Respondent’s financial records
and the Union agreed to do so. The parties agreed to dis-
cuss wages again after the Union conducted the audit. In
early February, however, the Union formally requested a
wage proposal from the Respondent. The Respondent
again encouraged the Union to conduct the audit and said
that after the Union understood the Respondent’s finan-
cial situation, the parties could reach an agreement re-
garding wages. There was no further discussion about
either the Union’s audit or its request for a wage proposal
during February.
Meanwhile, from late February through early April,
the Respondent hired 50 to 60 employees into the exist-
ing unit of approximately 100 employees to work on two
newly obtained accounts. Human Resources Manager
Daysma Grana and senior employee Angel Sanchez, who
was not a member of the bargaining unit, conducted new
employee orientation seminars. Maintenance Manager
Dario Mazier, another nonunit employee, also was pre-
sent for two seminars. During the seminars, Grana and
Sanchez screened the video “Little Card, Big Trouble” to
new employees. Generally, the video tells employees
about their right not to sign a union authorization card
and tells them of the potential consequences of signing
an authorization card. At the February 14 seminar in
which this video was shown, Grana and Sanchez made
statements that employee support of the Union would
interfere with the Company’s business opportunities. At
one or more seminars, Sanchez and Mazier also ex-
pressed negative views of unionization and their experi-
ence with unions.
At the beginning of March, the Union decided not to
conduct an audit of the Respondent’s financial records
and the parties immediately scheduled a bargaining ses-
sion for March 28. Believing that its newly obtained
business would bolster its financial condition, the Re-
spondent suggested at the March 28 session that the par-
ties further delay bargaining on wages so that it could
gauge the financial effect of the two new accounts. The
Respondent told the Union that if bargaining on wages
could wait 30 days or so, it might be in a position to con-
sider agreeing to the Union’s earlier wage proposal. The
Union agreed to delay bargaining, and the parties sched-
uled a bargaining session to discuss wages on May 3.
On March 29, however, the Union filed a refusal-to-
bargain charge because of the Respondent’s failure to
make a wage proposal on March 28. The Union’s negoti-
ating committee also circulated an “affection” petition
among employees and continued soliciting authorization
cards, without much success, from new employees in
order to shore up its support. According to the Union’s
chief negotiator, the committee was concerned about
rumors of a disaffection petition circulating among new
employees and the general lack of progress with negotia-
tions on wages, especially since the certification year
ended on March 29. Nevertheless, the Union withdrew
the charge on April 12, because it did not want to hinder
the bargaining session scheduled for May 3.
On or about April 18, Grana found a disaffection peti-
tion in her office signed by approximately 96 employees
of the 164-employee unit and the Respondent withdrew
recognition from the Union that same day. The identity
of the person who put the petition in Grana’s office is
unknown, but credited testimony shows that Mazier was
involved in soliciting employees to sign the petition. A
few days later, the Respondent posted a notice informing
employees that the Union no longer represented them
and was decertified by the employees’ petition.
In mid-May, the Respondent implemented a wage in-
crease retroactive to May 3. Statements by management
officials attributed the wage increase to the Union’s de-
certification. Around this same time, the Respondent also
implemented an employee-management group (referred
to as the EAR group) to discuss workplace issues. It is
undisputed that the Respondent implemented these
changes without providing the Union notice and an op-
portunity to bargain.
III. DISCUSSION
A. The judge found, and we agree, that the Respon-
dent violated Section 8(a)(1) when:
• Human Resources Manager Daysma Grana
and nonunit employee Angel Sanchez, during
a new employee orientation seminar they
conducted on February 14, threatened loss of
business opportunities if employees supported
the Union.5
• Controller Monica Wilsher coercively inter-
rogated employee Alberto Solano in late
March.
• Grana told employees in May that “if the Un-
ion [wa]s certified, there [would not] be a
raise.”6

5 In finding this violation, the judge correctly did not rely on San-
chez’ statement that the Union “would only take money out of [em-
ployees’] pockets.”
6 Sanchez accompanied Grana to this meeting and repeated her
comments. This meeting was not part of new employee orientation
seminars. The General Counsel alleged that Sanchez’ comments at the
meeting were a separate violation. Although we agree with the judge,
for the reasons set forth in his decision, that employee Sanchez was
acting as an agent of the Respondent during new employee orientation
seminars, we need not reach the issue of whether Sanchez was acting
on the Respondent’s behalf by his conduct at the May meeting. His
FLYING FOODS 103
• Grana told employees at a different meeting
in May that the Respondent was going to give
employees a salary increase because the “Un-
ion issue was over” and the Respondent’s
senior vice president of operations, Raul Bur-
gos, told employees in a meeting a few days
later that the Respondent was granting a wage
increase “as a result of” the employee’s ear-
lier petition not to be represented by the Un-
ion.7
• Grana told employees in May that the Re-
spondent was in the process of decertifying
the Union and that, because the Union was no
longer around, the Respondent was forming a
group to deal with workplace issues.
• General Manager Victor Vidal directly told
employees in May that the Union had been
decertified.
B. We adopt the following findings made by the judge
for the reasons set forth below.
1. Respondent’s withdrawal of recognition
The judge, relying on two alternative rationales, found
that the Respondent’s April 18 withdrawal of recognition
violated Section 8(a)(5) and (1): first, the judge reasoned
that the Respondent’s prewithdrawal unfair labor prac-
tices tainted the employee disaffection petition on which
the Respondent relied in withdrawing recognition; and
second, the judge reasoned that the Respondent failed to
show the Union’s “actual loss” of majority status at the
time it withdrew recognition pursuant to Levitz Furniture
Co. of the Pacific, 333 NLRB 717, 717, 725 and fn. 49
(2001) (stating that employer can defeat a postwith-
drawal refusal to bargain allegation if it shows, as a de-
fense, the union’s actual loss of majority status). While
we agree with the judge that the Respondent’s with-
drawal of recognition was unlawful, we do so only on the
basis of the judge’s second rationale.
As discussed elsewhere in this decision, we have found
that the Respondent committed only two prewithdrawal
unfair labor practices: (1) Grana and Sanchez made
unlawful statements during the February 14 new em-
ployee orientation session; and (2) Controller Monica
Wilsher unlawfully interrogated employee Alberto So-
lano in March. Even though we have adopted the judge’s
findings on these two allegations, we find that the Gen-

statements, if found to be an unfair labor practice, would be cumulative
of our findings that the same statements by Grana violated Sec. 8(a)(1).
7 Although Member Schaumber agrees with his colleagues that Vice
President Burgos’s comments violated Sec. 8(a)(1), he does not pass on
Grana’s statements because such a finding would be cumulative and
would not materially affect the remedy.
eral Counsel has not established specific proof of a
causal relationship between these unfair labor practices
and the disaffection petition.8
We agree, however, with the judge’s alternative find-
ing that the withdrawal of recognition violated Section
8(a)(5) and (1) because the Respondent failed to show
the Union’s “actual loss” of majority status under Levitz,
supra.9 The Respondent’s withdrawal of recognition rests
solely on a multipage petition bearing 96 signatures. The
Respondent’s own witnesses testified that there were 164
employees in the unit on April 18 when it withdrew rec-
ognition from the Union. It is undisputed that 6 of the 96
signatures should not be counted. The question remains
whether at least 82 of the remaining 90 signatures are
valid.
Three employee signatories left their employment with
the Respondent before April 18.10 Writing exemplars
from the Respondent’s personnel records demonstrate
that the signatures for seven other employees do not
match their purported signatures on the petition.11 Absent
any countervailing evidence, we find these signatures are
not authentic. Disregarding these 10 signatures on the
petition, a maximum of 80 of the signatures could be
valid, an insufficient number to prove the Union’s actual
loss of majority status.12 Therefore, the petition does not

8 See generally Master Slack Corp., 271 NLRB 78, 84 (1984).
9 Although Chairman Battista and Member Schaumber agree with
the judge that Levitz applies here, they did not participate in that case
and express no view as to whether it was correctly decided.
We do not rely on any implication in the judge’s decision that, under
Levitz, an employer’s withdrawal of recognition is unlawful where the
employer fails to verify the authenticity of a disaffection petition before
withdrawing recognition. As we discuss more fully below, regardless of
the Respondent’s actions with regard to the petition before withdrawing
recognition, the petition, as revealed at the hearing, fails to show an
actual loss of majority status.
In Chairman Battista’s view, after the General Counsel has estab-
lished a withdrawal of recognition at the hearing, the Respondent meets
its defensive burden by introducing a petition ostensibly signed by at
least half of the unit employees. At that juncture, the burden shifts to
the General Counsel to show that some of the alleged signatures should
not be counted. The Chairman concludes that the General Counsel has
met that burden.
10 These employees were Jorge Gonzalez, Maria Isabel Aguilar, and
Annais Salicio.
11 These employees were Norma Calero, Israel Aguilar, Anne Henry,
Samuel Miranda, Tania Martinez, Yurima Varela, and Lumise Jean
Gilles.
12 The General Counsel also challenged the validity of several other
signatures on the petition based on: the Respondent’s admission that it
did not have writing exemplars to authenticate three petition signatures;
the judge’s crediting of one employee’s denial that she signed (although
her signature on the petition looks the same as in her exemplar); and the
judge’s crediting of another employee’s testimony that he was told to
sign the petition in order to get a raise. This last employee signed the
second page of the petition. The signature lines on the second and third
pages of the petition are numbered sequentially after the first page but,
unlike the first page, they bear no statement of the petition’s purpose.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD104
demonstrate an actual loss of majority status and, accord-
ingly, we find that the Respondent’s withdrawal of rec-
ognition on the basis of that petition violated Section
8(a)(5) and (1).
2. Unilateral changes
We also adopt the judge’s findings that the Respondent
violated Section 8(a)(5) and (1) by unilaterally imple-
menting a retroactive wage increase and the EAR group
to discuss workplace issues in mid-May at a time when it
was still obligated to bargain with the Union.
We similarly agree with the judge that the unilateral
implementation of the retroactive wage increase also
violated Section 8(a)(3) and (1) because the Respondent
intended to discourage employee support for the Union
by granting it. On March 28, the Respondent asserted to
the Union that it was not in a financial position to discuss
wages and suggested a delay in bargaining on wages so
that it could determine the financial impact of its new
business. In the meantime, the Respondent withdrew
recognition, and quickly increased wages even though its
general manager credibly testified that its financial posi-
tion was worse than expected after the startup of the two
new accounts. Additionally, the Respondent’s senior vice
president of operations directly told employees that the
wage increase was “a result of” their disaffection. In light
of these circumstances, we find that the Respondent gave
employees the wage increase to discourage any contin-
ued support for the Union and to reward employees for
their disaffection from the Union; thus, the Respondent’s
wage increase not only violated Section 8(a)(5), as dis-
cussed above, but also violated Section 8(a)(3) and (1).
C. For the reasons set forth below, we reverse the fol-
lowing unfair labor practice findings made by the judge
and dismiss these complaint allegations.
1. Mazier’s solicitation of employee disaffection
As previously stated, the Respondent held several ori-
entation seminars for its 50–60 new employees hired
between February and April 2001. Truckdriver Jesus
Treto is the only witness who testified regarding
Mazier’s involvement in any of these seminars. Treto
credibly testified that Mazier, Sanchez, and Human Re-
sources Manager Grana were present at two orientation
seminars, one in early February and another in early
April 2001. Approximately 8–10 new employees at-
tended the February session and about 12 new employees

There are 23 signatures on petition pages two and three. The General
Counsel contends all of these are invalid.
Considering our finding that a sufficient number of signatures on the
petition are invalid so as to preclude a finding a majority of unit em-
ployees no longer supported the Union, we need not pass on these
additional contentions.
attended the April session. Sanchez, who had responsi-
bility for training new drivers, conducted the seminars.
At one session, Mazier said that a union attempted to
come into the Company 4 or 5 years ago but it did not
succeed. Mazier also said that the Company had lived
without the union and that employees did not need it.13
Beginning about 1 week after the April meeting,
Mazier solicited an unspecified number of employees to
sign a disaffection petition.14 These solicitations gener-
ally occurred in the Respondent’s kitchen work area.
There is no evidence that any supervisor observed
Mazier’s solicitations or was otherwise aware of his ac-
tivity.
The Board applies common law principles of agency
in determining whether to attribute an employee’s con-
duct to the employer. See, e.g., Electrical Workers Local
98 (MCF Services), 342 NLRB 740, 742 (2004); Pan-
Oston Co., 336 NLRB 305, 305–306 (2001); Cooper
Industries, 328 NLRB 145 (1999). Apparent authority
results from a manifestation of the principal to a third
party that creates a reasonable belief that the principal
has authorized the alleged agent to perform the acts in
question on behalf of the principal. Electrical Workers
Local 98, supra; Pan-Oston Co., supra. Either the princi-
pal must intend to cause the third person to believe the
agent is authorized to act for him or the principal should
realize that its conduct is likely to create such a belief.
Pan-Oston Co., supra (citing Restatement 2d, Agency, §
27 (1958, comment a)).
Applying these principles here, we agree with the
judge that Mazier was the Respondent’s agent with re-
spect to his actions and statements during the two orien-
tation seminars he attended. Contrary to the judge, how-
ever, Mazier was not shown to have been acting on be-
half of the Respondent when he later solicited employees
to sign a disaffection petition. Mazier’s solicitation did
not take place at either of the two orientation seminars he
attended. Rather, it occurred approximately 1 week after
the April seminar, which was the last seminar Mazier
attended. An employee opposed to unionization does not
become the employer’s agent at all times simply because

13 There is no contention that these statements, or any other state-
ments made by Mazier during the orientation seminars, violated the
Act. To the extent that the judge’s decision could be read to suggest
that Mazier “conducted” several orientation seminars with Grana and
Sanchez from late February through early April, we disagree. Treto’s
testimony only demonstrates that Mazier was “present” at two semi-
nars. Sanchez, not Mazier, “conducted” several sessions.
14 As with many other factual matters, the testimony is unclear as to
whether Mazier engaged in solicitation activity prior to April, though it
is undisputed that he solicited employee support for a disaffection
petition. Signatures on the disaffection petition are dated from April 11
through 16.
FLYING FOODS 105
he speaks critically about the union in two employer-
sponsored meetings with other employees. This is all the
record shows Mazier did here. Further, the record does
not establish any link between the orientation seminars
and the later solicitations. There is no showing that
Mazier’s decertification effort was mentioned at the new
employee orientation sessions, nor is there any showing
as to how many of the employees Mazier solicited were
at the orientation seminars he attended.15
The judge also inferred the Respondent’s apparent au-
thorization of Mazier’s solicitation from his breach of a
no-solicitation rule in a work area where he could have
been observed by a supervisor. There is, however, no
evidence that any supervisor actually saw Mazier solicit
anyone. Furthermore, notwithstanding the no-solicitation
rule’s existence, there is no record of its enforcement
against any employees. Consequently, there is no basis
for finding that solicited employees would reasonably
infer from the nonenforcement of the no-solicitation rule
against Mazier that the Respondent authorized his solici-
tation activity.
Based on the foregoing, we find that the General
Counsel has failed to prove that Mazier acted as the Re-
spondent’s agent when soliciting employees to sign the
disaffection petition. Therefore, Mazier’s role in solicit-
ing support for the disaffection petition is not attributable
to the Respondent and it did not violate Section 8(a)(1)
as alleged. Accordingly, we shall dismiss this complaint
allegation.
2. Showing the video “Little Card, Big Trouble”
As discussed briefly above, from late February to early
April, the Respondent showed the video “Little Card, Big
Trouble” to new employees during orientation sessions.
After discrediting the Respondent’s witnesses who testi-
fied about why the Respondent showed the video to new
employees, the judge found that the Respondent did not
have a legitimate purpose for showing the video during
the Union’s certification year. Considering the screening
of the video in the context of Mazier’s activities during
the same time period, the judge found that Respondent
intended to discourage employees’ continued support for
the Union and concluded that showing the video was part
of an effort to decertify the Union in violation of Section
8(a)(1). We disagree.
“Little Card, Big Trouble” is a campaign video pre-
pared by Projections, Inc. for employers to screen to em-
ployees during representation campaigns. In the video,

15 Adolpho Morales and Alberto Solano, two of the five witnesses
who testified that Mazier solicited them, were long-term employees
who would not have been involved in the new employee training ses-
sions.
fictional union organizers discuss their attempts to solicit
union authorization cards from their coworkers. The nar-
rator of the video also comments on the organizers’ ef-
forts: “[a card] can obligate you to something you very
well might not want any part of. Signing a union authori-
zation card can be like signing a blank check . . . you
won’t know what the real cost will be until it’s too late”;
“when [employees] find out that belonging to a union
means living with its rules and regulations, and having to
pay dues and fines and assessments, well, they aren’t so
eager to be counted among the union supporters.” The
video’s penultimate points are that “if the union organiz-
ers or pushers tell you that better things are automatic
with a union, don’t believe it” and “if the union becomes
your bargaining representative, they, the union agents
and representatives, will sit down at a table across from
the company, and negotiate. But there are no guarantees,
because the company is not required to give in to the
union’s demands. All the company has to legally do is
bargain in good faith.” The video does not threaten em-
ployees who sign an authorization card or promise em-
ployees benefits for not signing a card. It simply encour-
ages employees to “think about” their decision to sign a
card.16
To begin, the judge’s analysis misleadingly suggests
that the analysis of this issue turns on the Respondent’s
motivation for showing the video. On the contrary, “the
standard for determining whether a statement violates
Section 8(a)(1) is an objective one that considers whether
the statement has a reasonable tendency to coerce the
employee or interfere with Section 7 rights, rather than
the intent of the speaker.” Smithfield Packing Co., 344
NLRB No. 1, slip op. at 2 (2004). Resolution of this is-
sue must take into consideration that Section 8(c) of the
Act explicitly recognizes the Respondent’s right to ex-
press its views about labor issues and unionization, pro-
vided it does so in noncoercive terms.17 NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1999).
The judge did not find that the content of the video, in
and of itself, violated 8(a)(1). Clearly it did not. Em-

16 The record contains an English transcript of the video. All or most
of the video screenings were in Spanish. The distributor of the video
did not comply with a subpoena for the Spanish version. The judge
expressed doubt as to whether the English transcript accurately re-
flected what was shown to employees. Nevertheless, the credited testi-
mony of the General Counsel’s witnesses failed to identify any signifi-
cant differences between what they heard and the summary of the video
set out above.
17 Sec. 8(c) of the Act provides that:
The expressing of any views, argument, or opinion, or the dissemina-
tion thereof, whether in written, printed, graphic, or visual form, shall
not constitute or be evidence of an unfair labor practice under any of
the provisions of this Act, if such expression contains no threat of re-
prisal or force or promise of benefit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD106
ployer statements must be viewed in context and not in
isolation to determine if they have the reasonable ten-
dency proscribed by Section 8(a)(1). See, e.g., UARCO,
Inc., 286 NLRB 55, 58 (1987), and cases cited therein. In
this instance, neither of the two factors relied on by the
judge demonstrate that the video had a reasonable ten-
dency to interfere with, restrain, or coerce employees’
exercise of Section 7 rights.
The first factor relied on by the judge was the showing
of the video during the Union’s certification year. The
certification year provides an insulated period during
which an incumbent union’s representative status cannot
ordinarily be challenged. It does not, however, circum-
scribe an employer’s 8(c) right to make noncoercive
critical statements about unionization or the considera-
tions a new employee should contemplate before electing
to join a union.
The second factor relied on by the judge was Mazier’s
decertification activity. We have previously found that
Mazier did not act as the Respondent’s agent while en-
gaged in this activity. In any event, neither the video nor
remarks made during the screening of the video make
reference to decertification.18 Further, there is no credible
evidence that Mazier made any reference to the video or
that he made any threats or promises of benefits to em-
ployees based on whether they chose to sign the disaffec-
tion petition. Accordingly, we find that the General
Counsel has failed to prove that employees would rea-
sonably tend to link Mazier’s conduct to the video and to
infer from that nexus that they would suffer adverse con-
sequences as a result of supporting the Union.
In sum, the video “Little Card, Big Trouble” merely
sets forth the Respondent’s privileged views about the
potential consequences of signing an authorization card.
It contains no threats against employees for signing an
authorization card or any promises of benefit for not
signing a card nor does its make reference to decertifica-
tion. The Respondent has as much right under Section
8(c) to convey this noncoercive message during a union’s
certification year as it does during an organizational
campaign. Finally, employees would not reasonably in-
terpret the video as coercive based on Mazier’s personal
efforts to solicit their support for a disaffection petition.
Thus, the video does not rise to the level of interference,
restraint, or coercion proscribed by Section 8(a)(1), but is
instead protected by Section 8(c).
Our colleague argues that an employer can oppose a
union during an organizational campaign, but not after

18 We note that the judge did not find that unlawful statements made
by Grana and Sanchez at the February 14 orientation seminar had any
bearing on employees’ perception of the video shown on that date. The
judge relied solely on Mazier’s conduct in his analysis of this factor.
the union has become certified. As she phrases it, “the
time for campaigning is over and the free choice of em-
ployees must be respected.” Similarly, she says that the
employer’s “continuing the campaign reasonably tends to
coerce employees in the exercise of their Section 7 rights
because it demonstrates that the employer disfavors their
representative and implies that supporting the union will
be futile or even lead to reprisals.” We disagree. In the
first place, it is not unlawful for an employer to express
an opinion “disfavoring” the union. Further, noncoercive
expressions of opposition to unionization do not neces-
sarily imply that representation by a union is futile or
will lead to reprisals. Moreover, the provisions of Section
8(c) do not simply vanish from the Act during a certifica-
tion year; employers remain free to express views, argu-
ment, or opinion on unionization, or the risks and bene-
fits of signing an authorization card, so long as “such
expression contains no threat of reprisal or force of
promise of benefit.” That is true even if as a result of
such speech some employees choose not to become un-
ion members. Freedom of speech is a core value of our
constitutional democracy, and neither the persuasiveness
of the speech nor the “context” of a certification year
renders otherwise lawful speech unlawful.
Our colleague does not appear to seriously dispute that
an employer may lawfully inform employees of their
protected choice as to whether to sign an authorization
card, even after a union has been certified. However, she
finds, like the judge, that the video in question “went
much further” and informed new employees not only of
that right, but “that it is a problem if you belong” to a
union. Had the video suggested or implied that signing
an authorization card was a “problem” because of any
action the Respondent might take in response, our col-
league’s argument would be a valid one. However, the
video posits that signing a card is a problem because “be-
longing to a union means living with its rules and regula-
tions and having to pay dues and fines and assessments.”
The video’s expression of opinion as to the general dis-
advantages of union membership, even if deemed an
indirect disparagement of this Union, would be insuffi-
cient to establish a violation of Section 8(a)(1). See
Trailmobile Trailer, LLC, 343 NLRB 95, 95 (2004),
quoting Sears, Roebuck & Co., 305 NLRB 193 (1991)
“[w]ords of disparagement alone concerning a union or
its officials are insufficient for finding a violation of
8(a)(1).”
Finally, we disagree with our colleague’s assertion that
the unlawful threat of loss of business as a result of un-
ionization made by Grana and Sanchez tainted the
video’s unrelated and otherwise lawful message concern-
ing the entirely different subject of signing authorization
FLYING FOODS 107
cards. As noted above, the text of the video was noncoer-
cive, it did not encourage or solicit decertification, and it
did not question the status of the Union as the certified
representative or invite direct dealing. Thus, the video
did not have a “coercive effect” in the first instance that
could be “exacerbated” by the unrelated threats of Grana
and Sanchez.19 The showing of the video is alleged as a
separate violation, and we assess it as such.
Our colleague’s reliance on Armored Transport, Inc.,
339 NLRB 374 (2003), and Webco Industries, 327
NLRB 172 (1998), is misplaced. In the former case, the
employer coercively instigated decertification efforts
when it circumvented the union by presenting contract
proposals directly to employees, “direct[ed] employees
as to the certification process by suggesting that they go
to the Board to request a new election,” and requested
employees to file a decertification petition and present
the employer with evidence upon which it could with-
draw recognition. 339 NLRB at 377–378. The Respon-
dent engaged in no such coercive conduct in displaying
the video here. Similarly, in Webco Industries, unlike the
instant case, the employer took adverse action against
employees and then falsely blamed that action on the
union, thereby coercively suggesting that seeking union
representation results in damage to their terms and condi-
tions of employment. 327 NLRB at 173. Absent such
adverse action, or threats, or promises, the expression of
opinion as to the merits of union representation remains
protected by Section 8(c) notwithstanding certification.
Accordingly, we shall dismiss this complaint allegation.
3. Failure to make a wage proposal
As set forth briefly above, on January 31 and March
28, the Respondent suggested a delay in bargaining on
wages because of its financial situation. For this same
reason, the Respondent did not proffer a wage proposal
during the negotiation sessions on those dates.20 The Un-
ion apparently acceded to the Respondent’s suggestion
by first agreeing on January 31, to conduct an audit of
the Respondent’s finances before discussing its own
wage proposal, and then by agreeing on March 28, to
further delay bargaining on wages in the hopes that the
Respondent’s financial condition would improve follow-
ing the startup of two new accounts. Given the Union’s
agreement to the Respondent’s proposal to delay discus-
sions on wages, we find that the Respondent’s failure to
proffer a wage proposal cannot be said to interfere with,

19 Our colleague points to additional statements made by Sanchez
that were critical of the Union. However, those statements were not
even alleged as unfair labor practices, and also do not taint the message
of the video.
20 This conduct was alleged as an 8(a)(1) violation. The General
Counsel did not allege that it was also an 8(a)(5) violation.
restrain, or coerce employees in the exercise of their Sec-
tion 7 rights in violation of Section 8(a)(1). Accordingly,
we shall dismiss this complaint allegation.
4. Surface bargaining
The judge also inferred that that the Respondent’s
January 31 and March 28 claims of financial duress and
proposals to delay bargaining on wages were part of a
deliberate strategy intended to foment employee discon-
tent and to undermine employee support for the Union.
The judge concluded, without explanation or analysis,
that “by its overall conduct” between January 31 and
April 18, the Respondent failed and refused to bargain in
good faith with the Union. Neither the complaint nor the
judge’s decision specifically reference the Respondent’s
January 31 or March 28 proposals to delay further bar-
gaining on wages as bases for a finding of bad-faith bar-
gaining. Nor was this conduct alleged as a violation of
Section 8(a)(5); thus, the judge’s bad-faith finding ap-
pears based solely on the Respondent’s away-from-the-
bargaining-table misconduct.
In determining whether a party has violated its statu-
tory obligation to bargain in good faith, the Board exam-
ines the totality of the party’s conduct, both at and away
from the bargaining table.21 Public Service Co. of Okla-
homa, 334 NLRB 487 (2001), enfd. 318 F.3d 1173 (10th
Cir. 2003); Overnite Transportation Co., 296 NLRB 669,
671 (1989), enfd. 938 F.2d 815 (7th Cir. 1991); Atlanta
Hilton & Tower, 271 NLRB 1600, 1603 (1984). Under
this standard, we must decide whether a party is engag-
ing in hard, but lawful, bargaining to achieve an agree-
ment that it considers desirable or is unlawfully endeav-
oring to frustrate the possibility of arriving at any agree-
ment. Id. In making this determination, the Board exam-
ines not only the conduct of the employer but also the
conduct of the union. Aztec Bus Lines, 289 NLRB 1021,
1042 (1988), and cases cited therein.
a. The Respondent’s negotiations concerning
noneconomic issues
The parties’ extensive bargaining history leading up to
the January 31 bargaining session, as the judge recounts,
indicates that the parties met eight times after their initial
session in May 2000 and bargained to agreement on
nearly all noneconomic issues. The record shows that the

21 Sec. 8(d) of the Act defines the duty to bargain collectively as:
[T]he performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and confer
in good faith with respect to wages, hours, and other terms and condi-
tions of employment . . . but such obligation does not compel either
party to agree to a proposal or require the making of a concession.
NLRB v. Insurance Agents, 361 U.S. 477, 485 (1960).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD108
parties negotiated in good faith throughout this period.
There is no contention to the contrary.
b. The Respondent’s negotiations concerning wages
In January, the Union made a wage proposal and re-
quested bargaining on wages. Although the Respondent
did not make a wage proposal as the Union had re-
quested, its failure to do so is not evidence of bad faith.
First, there is no complaint allegation that the failure to
make a wage proposal violated Section 8(a)(5). Indeed,
as more fully discussed below, the Union at the very
least acquiesced in the delay in bargaining over wages.
Second, the Respondent carefully explained that it
wished to delay making a counterproposal in the hope
that its financial condition would improve and allow it to
make a more generous wage proposal than it could make
at the time. As further evidence of its good faith, the Re-
spondent offered to allow the Union to audit its financial
records to verify its financial condition. Respondent also
made a detailed presentation concerning its finances at
the March 28 bargaining session to explain the justifica-
tion for its delay in making a wage proposal. These ac-
tions fail to manifest bad faith on the part of the Respon-
dent.
c. The Union’s conduct during bargaining
The Union’s position on the delay of bargaining con-
cerning wages proposed by the Respondent was anything
but consistent. On January 31, the Union agreed to the
Respondent’s proposal to delay negotiations on wages
until after it conducted an audit. In early February, how-
ever, the Union demanded a wage proposal from the Re-
spondent before it would conduct the audit. Shortly
thereafter, the Union decided not to conduct an audit. On
March 28, the Union agreed to delay bargaining on
wages until May 3, but filed a refusal to bargain charge
on March 29 complaining of the Respondent’s failure to
bargain on wages the day before. On April 12, again
changing its position, the Union withdrew its March 29
charge so as not to interfere with the scheduled bargain-
ing session on May 3. The Union’s vacillation on how
bargaining was to proceed stands in stark contrast to the
Respondent’s consistent position that it might be in a
position to make a more generous wage proposal after its
business improved than it was able to make at that time.
It would be anomalous to find bad-faith bargaining, i.e.,
that the Respondent sought to avoid reaching an agree-
ment, when the parties actually agreed how to proceed
with bargaining on wages.
d. The Respondent’s away-from-the-bargaining-
table conduct
As discussed above, we have found that the Respon-
dent twice violated Section 8(a)(1) between January 31
and April 18, i.e., Grana and Sanchez threatened on Feb-
ruary 14, that the Union would interfere with the Re-
spondent’s business opportunities and Wilsher coercively
interrogated employee Solano in late March. This away-
from-the-table misconduct is insufficient to prove overall
surface bargaining in the totality of the circumstances of
this case. Cf. River City Mechanical, 289 NLRB 1503,
1505 (1988).
In River City Mechanical, supra, the employer sought
to extract substantial economic concessions during nego-
tiations for a successor agreement, but there was no indi-
cation of bad faith in its conduct at the bargaining table.
Although its conduct away from the table included direct
dealing with employees and expressions of intent to go
nonunion, the Board found that those unfair labor prac-
tices were insufficient to establish overall surface bar-
gaining in the absence of evidence that they influenced
the aims or attitudes of the employer’s officials in ad-
vancing contract proposals on the employer’s behalf. Id.
at 1505.
Likewise in this case, the Respondent’s misconduct
away from the table, which is certainly less egregious
and less related to the bargaining process than the em-
ployer’s misconduct in River City Mechanical, has not
been shown to have influenced its conduct at the bargain-
ing table. Rather, as discussed above, the Respondent
bargained in good faith concerning noneconomic items
and delayed making a wage proposal simply because the
Union agreed to do so. The Respondent’s unfair labor
practices may “show the Respondent’s animus against
the Union; but they do not provide a sufficient indicia of
bad-faith bargaining to warrant the finding of a [surface
bargaining] violation in the circumstances of this case.”
Hostar Marine Transport Systems, 298 NLRB 188, 197
(1990). Accordingly, we shall dismiss this complaint
allegation.
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in the following conduct, the Respon-
dent committed unfair labor practices contrary to the
provisions of Section 8(a)(1) of the Act:
(a) Threatening employees on or about February 14,
2001, with loss of business opportunities due to their
support for the Union.
(b) Threatening in May 2001 to withhold wage in-
creases due to employees’ support for the Union.
FLYING FOODS 109
(c) Informing employees in or around early May 2001
that they were receiving wage increases as a reward for
decertifying the Union.
(d) Informing employees on or about May 7, 2001, that
it was replacing the Union with an EAR group to address
employee grievances.
(e) Informing employees in April 2001 of its unlawful
withdrawal of recognition and saying to employees that
the Union was no longer their collective-bargaining rep-
resentative.
(f) Coercively interrogating an employee on March 28,
2001, about his union membership, activities, and sym-
pathies.
(g) Informing employees on or about May 7, 2001, that
they were receiving wage increases that the Union was
not able to obtain for them as a reward for decertifying
the Union.
4. By implementing retroactive wage increases for
employees in the involved unit to discourage employees
from joining, supporting, and assisting a union and en-
gaging in concerted activities, the Respondent committed
unfair labor practices contrary to the provisions of Sec-
tion 8(a)(1) and (3) of the Act.
5. By engaging in the following conduct, the Respon-
dent committed unfair labor practices contrary to the
provisions of Section 8(a)(1) and (5) of the Act:
(a) Withdrawing recognition from the Union as the ex-
clusive collective-bargaining representative of the unit on
or about April 18, 2001.
(b) Failing and refusing to meet and bargain with the
Union upon request since on or about April 18, 2001.
(c) Creating an EAR group in or around early May
2001 as a replacement for the Union to deal directly with
employees concerning terms and conditions of employ-
ment, which are mandatory subjects for the purposes of
collective bargaining, without giving the Union notice
and an opportunity to bargain.
(d) Implementing in mid- to late May 2001 retroactive
wage increases, which relate to the terms and conditions
of employment and are a mandatory subject for the pur-
poses of collective bargaining, for employees in the unit
without giving the Union notice and an opportunity to
bargain.
6. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
7. The Respondent has not violated the Act in any
other manner.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order the Respondent
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Affirmative Bargaining Order
The judge recommended an affirmative bargaining or-
der to remedy the Respondent’s unlawful withdrawal of
recognition, but did not justify the imposition of such an
order as required by the United States Court of Appeals
for the District of Columbia Circuit. Nevertheless, for the
reasons set forth below, we agree with the judge that an
affirmative bargaining order is warranted on the facts of
this case.22
The Board has previously held that an affirmative bar-
gaining order is “the traditional, appropriate remedy for
an 8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em-
ployees.” Caterair International, 322 NLRB 64, 68
(1996). In several cases, however, the United States
Court of Appeals for the District of Columbia Circuit has
required the Board to justify, on the facts of each case,
the imposition of an affirmative bargaining order. See,
e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d
727 (D.C. Cir. 2000); Lee Lumber & Building Material
Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997);
Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C.
Cir. 1994). In Vincent Industrial Plastics, supra, the court
stated that an affirmative bargaining order “must be justi-
fied by a reasoned analysis that includes an explicit bal-
ancing of three considerations: (1) the employees’ Sec-
tion 7 rights; (2) whether other purposes of the Act over-
ride the rights of employees to choose their bargaining
representatives; and (3) whether alternative remedies are
adequate to remedy the violations of the Act.” 209 F.3d
at 738. Consistent with the court’s requirement, we have
examined the particular facts of this case and we find that
a balancing of the three factors warrants an affirmative
bargaining order.23
First, an affirmative bargaining order vindicates the
employees’ Section 7 rights by providing the employees,

22 The General Counsel and the Respondent both argued that the
remedy should be imposed pursuant to Mar-Jac Poultry, 136 NLRB
785, 787 fn. 6 (1962) (ordering employer to bargain with union for at
least the balance of the certification year remaining after the employer
refused to bargain). Given our reversal of the judge’s bad-faith bargain-
ing during the certification year finding above, however, Mar-Jac Poul-
try is inapplicable.
23 Chairman Battista and Member Schaumber do not agree with the
view expressed in Caterair International, supra, that an affirmative
bargaining order is “the traditional, appropriate remedy for an 8(a)(5)
violation.” They agree with the United States Court of Appeals for the
District of Columbia Circuit that a case-by-case analysis is required to
determine if the remedy is appropriate. Saginaw Control & Engineer-
ing, Inc., 339 NLRB 541, 546 fn. 6 (2003). They recognize, however,
that the view expressed in Caterair International, supra, represents
extant Board law.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD110
who were denied the benefits of collective bargaining by
the Respondent’s unlawful withdrawal of recognition,
with the opportunity to negotiate and execute an initial
collective-bargaining agreement. This is particularly im-
portant given the status of bargaining at the time of the
withdrawal of recognition, where the parties had been
bargaining since May 2000, had resolved noneconomic
issues, and the Respondent, by its unilateral postwith-
drawal wage increase, signaled its ability and willingness
to address unit employees’ key economic concern. At the
same time, an affirmative bargaining order does not un-
duly burden the Section 7 rights of employees who might
oppose continued union representation because the dura-
tion of the order is no longer than is reasonably necessary
to remedy the ill effects of the Respondent’s unlawful
withdrawal of recognition.
Second, an affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it gives the par-
ties a reasonable period of time to resume negotiations
and to execute a collective-bargaining agreement if those
negotiations are successful. It also ensures that the Union
will not be pressured, by the possibility of another chal-
lenge to its majority status, to achieve immediate results
at the bargaining table—results that might not serve the
best interests of the bargaining unit employees.
Third, a cease-and-desist order without the temporary
bar on challenges to the Union’s majority status attendant
to an affirmative bargaining order would be inadequate
to remedy the Respondent’s withdrawal of recognition
and refusal to bargain violations because it would allow
another such challenge to the Union’s majority status
before the taint of the Respondent’s previous unlawful
withdrawal of recognition dissipated. Allowing another
challenge to the Union’s majority status without a rea-
sonable period for bargaining would be particularly un-
fair in light of the Union’s need to reestablish its repre-
sentative status with unit employees after the Respondent
gave them a wage increase as a reward for the Union’s
decertification and created an EAR group to replace the
Union as the medium for discussion of workplace issues.
These circumstances outweigh the temporary impact an
affirmative bargaining order will have on the rights of
those employees who oppose continued union represen-
tation.
Rescission of unilateral changes
Consistent with the Board’s usual remedial practice,
we have modified the judge’s recommended remedy for
the Respondent’s unlawful unilateral wage increase to
require the Respondent, upon request by the Union, to
rescind the wage increase it granted employees after
withdrawing recognition from the Union. Jerry Cardullo
Ironworks, Inc., 340 NLRB 515, 516 (2003); Saginaw
Control & Engineering, supra at 547. We shall also in-
clude an affirmative provision requiring the Respondent
to disestablish the EAR group it unilaterally created to
replace the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Flying Foods Group, Inc. d/b/a Flying
Foods, Miami, Florida, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of business op-
portunities due to their support for Hotel Employees &
Restaurant Employees International Union Local 355,
AFL–CIO.
(b) Threatening to withhold wage increases due to em-
ployees’ support for the Union.
(c) Informing employees that they are receiving wage
increases as a reward for decertifying the Union.
(d) Informing employees that it was replacing the Un-
ion with an EAR group to address employee grievances.
(e) Informing employees of its unlawful withdrawal of
recognition and saying to employees that the Union was
no longer their collective-bargaining representative.
(f) Coercively interrogating an employee about his un-
ion membership, activities, and sympathies.
(g) Informing employees that they were receiving
wage increases that the Union was not able to obtain for
them as a reward for decertifying the Union.
(h) Implementing retroactive wage increases for em-
ployees in the involved unit to discourage employees
from joining, supporting, and assisting a union and en-
gaging in concerted activities.
(i) Failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the following appropriate unit:
All full-time and regular part-time transportation em-
ployees, drivers, helpers, dispatch clerks, kitchen em-
ployees, equipment flight set-up employees, storeroom
employees, dishroom employees, production employ-
ees (hot, cold, cutlery/packing, tray set-up, dessert, and
cooks), porters, flight coordinators, lead persons in cold
food, dishroom, storeroom, and equipment flight set-
up, the transportation hourly supervisor, and the store-
room hourly supervisor, employed by the Employer at
its Miami, Florida location; excluding all office clerical
employees, storeroom clerks, maintenance employees,
professional employees, managerial employees, guards,
and supervisors as defined in the Act.
FLYING FOODS 111
(j) Failing and refusing to meet and bargain with the
Union upon request.
(k) Creating and maintaining an EAR group as a re-
placement for the Union to deal directly with employees
concerning terms and conditions of employment, which
are mandatory subjects for the purposes of collective
bargaining, without giving the Union notice and an op-
portunity to bargain.
(l) Implementing retroactive wage increases, which re-
late to the terms and conditions of employment and are a
mandatory subject for the purposes of collective bargain-
ing, for employees in the unit without giving the Union
notice and an opportunity to bargain.
(m) 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) Recognize and, on request, bargain collectively
with the Union as the exclusive bargaining representative
of the employees in the above-mentioned unit concerning
wages, hours, and other terms and conditions of em-
ployment, and if an understanding is reached, embody
the understanding in a signed agreement.
(b) Disestablish the EAR group and, on request of the
Union, rescind the unilateral wage increase granted to
employees in May 2001.
(c) Within 14 days after service by the Region, post at
its facility in Miami, Florida, copies of the attached no-
tice marked “Appendix.”24 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. The notice shall be posted
in both English and Spanish. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent, Flying Foods, at any time since February 14, 2001.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

24 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.”
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
MEMBER LIEBMAN, concurring and dissenting in part.
Provided it does not make threats or promises, an em-
ployer is free to campaign against a union that seeks to
represent its employees. But once employees have freely
chosen union representation, the employer may not dis-
parage the union or solicit employees to seek decertifica-
tion of the union.1 In other words, the time for campaign-
ing is over and the free choice of employees must be
respected. Continuing the campaign reasonably tends to
coerce employees in the exercise of their Section 7
rights, because it demonstrates that the employer disfa-
vors their representative and implies that supporting the
union will be futile or even lead to reprisals. Here, the
majority errs in endorsing the Respondent’s repeated
showing of an antiunion video to new employees after
the Union had been certified and while it sought to nego-
tiate a first contract, in the context of other unfair labor
practices.
I.
The Respondent held a series of orientation seminars
for new employees from late February through early
April 2001.2 At the February 14 seminar, conducted by
Human Resources Manager Daysma Grana and senior
employee Angel Sanchez (who was acting as an agent of
the Respondent during these seminars), Sanchez told the
new employees that the Union was no good for them;
that it was only interested in strikes, not in benefits for
the employees; that the employees would have more
benefits without the Union; and that the only thing the
Union would do would be to take money out of the em-
ployees’ pockets. My colleagues and I agree that Grana
and Sanchez also unlawfully threatened the employees
that the Union would prevent the Respondent from get-
ting new business.
During these seminars, the Respondent showed the an-
tiunion video “Little Card, Big Trouble,” which warned
the new employees that “[s]igning a union authorization
card can be like signing a blank check . . . you won’t

1 See, e.g., Armored Transport, Inc., 339 NLRB 374, 377–378
(2003). See also Webco Industries, 327 NLRB 172, 173 (1998) (“Al-
though an employer is generally free to make critical comments about a
union that is seeking to organize its employees, it violates Section
8(a)(1) of the Act when it takes adverse action against employees and
falsely blames its action on the union.”).
2 The Union’s certification year ran through March 28, 2001. All
dates are 2001, unless stated otherwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD112
know what the real cost will be until it’s too late” and
“once employees start to find out the truth about unions,
a lot of them will change their minds about wanting a
union in their lives.” The video also declared that one of
the basic reasons employees turn to a union is because
they want to hurt management. Finally, the video pro-
claimed that if the employees do not have any real prob-
lems, then the union creates them.
In late February or early March, and continuing
through mid-April, employee Dario Mazier solicited em-
ployees to sign a petition stating that they did not want to
be represented by the Union. On April 18, about 2 weeks
after the Respondent’s latest showing of “Little Card,
Big Trouble,” the Respondent received a petition pur-
portedly signed by a majority of its employees, declaring
that they no longer wished to be represented by the Un-
ion. The Respondent immediately and (as my colleagues
and I find) unlawfully withdrew recognition of the Un-
ion.
II.
The Respondent’s repeated showing of “Little Card,
Big Trouble” was an obvious attempt to undermine em-
ployee support for the incumbent Union and to solicit
employee support for the decertification movement.
Newly-hired employees watching the video would rea-
sonably infer that supporting the Union, despite their
employer’s disfavor, could bring reprisals. Here, context
is crucial.3
As my colleagues note, this antiunion video was pro-
duced by another company for employers to show to
their employees during union organizational campaigns.
But the Union’s organizational campaign had long since
been successfully completed by the time the Respondent
began to show the video. The Union had won the right to
represent the Respondent’s employees, it was still in its
certification year, and it was in contract negotiations with
the Respondent. Furthermore, the coercive effect of the
video was exacerbated by the unlawful threats made by
Grana and Sanchez at the February 14 seminar that the
presence of the Union would prevent the Respondent
from getting new business.4

3 The administrative law judge in Sodexho Marriott Services, 335
NLRB 538, 547, 555 (2001), found that a video styled “Little Card -
Big Trouble” was legitimate campaign propaganda. But there were no
exceptions to that finding, and the case therefore has no precedential
force. In any event, here the Union was the incumbent bargaining rep-
resentative, while in Sodexho Marriott the video was shown during the
union’s organizational campaign.
4 My colleagues note that the judge did not find that the unlawful
threats made by Grana and Sanchez at the February 14 orientation
seminar had any bearing on the employees’ perception of the video
shown on that date. But the judge also did not find that the threats
lacked any such bearing—and, of course, it is the reasonable tendency
The judge correctly found that the Respondent was not
on the same footing as an employer trying to convince its
employees, during a union organizational campaign, not
to sign a union authorization card or support a union. The
Union here was in place as the certified collective-
bargaining representative. The judge also correctly found
that the “Little Card, Big Trouble” video went much fur-
ther than simply explaining that the employees had a
choice about whether to sign a union authorization card.
He found that the message conveyed to the employees by
the video was “not just that they had a right not to belong
to the Union but that it is a problem if you belong.” I
agree with the judge. Negotiating a first contract is diffi-
cult in the best of circumstances. But negotiating a first
contract while this message was bombarded to new em-
ployees (likely more vulnerable to coercion than the vet-
eran work force) would virtually guarantee that the Un-
ion would be undermined and that the negotiations would
fail. In fact they did.5
In reversing the judge’s unfair labor practice finding,
the majority says that the Respondent’s repeated showing
of the antiunion video to employees was merely a nonco-
ercive expression of the Respondent’s critical views
about unionization and the considerations that a new em-
ployee should contemplate before deciding whether to
join a union. Citing Section 8(c) of the Act, my col-
leagues insist that the Respondent was entitled to convey
this message not only during the organizing campaign,
but also after employees had freely chosen union repre-
sentation.
But, as I have explained, the likely effect of the mes-
sage is fundamentally different when the union has been
certified. In that context, what once may have been le-
gitimate campaign propaganda becomes an implicit
threat, at least under the circumstances present here.
When newly-hired employees are told that endorsing the
incumbent union is like signing a blank check, that em-
ployees turn to unions in order to hurt management, and
that unions create employees’ problems, they under-
standably will hesitate to support the union, even though
it has been certified to represent them. This is coercion,

of the video to coerce employees (and not actual coercion) that matters.
Surely the unlawful threats tended to exacerbate the video’s antiunion
message.
5 It seems clear that the Respondent’s repeated showing of the anti-
union video from late February through early April encouraged the
antiunion sentiment expressed in the April 18 employee petition to get
rid of the Union. Indeed, after being shown the video, employee Hector
Rodriguez and a fellow employee, both of whom had earlier signed
authorization cards, told Sanchez that, having seen the video, they
realized that they had gotten into “a big problem and . . . wanted to get
out.” Some days later, Rodriguez signed the employee petition to get
rid of the Union.
FLYING FOODS 113
not persuasion.6 Accordingly, I would find that the Re-
spondent violated Section 8(a)(1) of the Act, as alleged,
by soliciting its employees to decertify the Union by
showing them the antiunion video in question.7
III.
I agree with the results reached by the majority in all
other respects.
While I find the Respondent’s course of conduct dur-
ing contract negotiations troubling—it suggests that the
Respondent was stalling in order to get through the Un-
ion’s certification year—the Board unanimously finds
that the Respondent unlawfully withdrew recognition and
thereafter refused to bargain with the Union. I am satis-
fied that our affirmative bargaining order remedy for
those violations will satisfactorily restore the Union to
the status quo ante.
Finally, with regard to the General Counsel’s request
that the Union’s certification year be extended under
Mar-Jac Poultry, 136 NLRB 785 (1962), I am satisfied
that ordering the Respondent to bargain in good faith
with the Union for a reasonable period of time is suffi-
cient to remedy the Respondent’s unlawful withdrawal of
recognition and refusal to bargain. Under Lee Lumber &
Building Material Corp., 334 NLRB 399 (2001), enfd.
310 F.3d 209 (D.C. Cir. 2002), such a reasonable period
of time for bargaining, before the Union’s majority status
can be challenged, is at least 6 months.
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.

6 That the employees were new, and, thus, had not participated in the
union-election process, did not entitle the Respondent to launch a coer-
cive campaign aimed at them, however tempting that might have been.
7 In light of my agreement with this unfair labor practice finding, I
need not pass on my colleagues’ reversal of the judge’s finding that
employee Dario Mazier was acting as the Respondent’s agent in unlaw-
fully soliciting employee support for the decertification petition. Such
an unfair labor practice finding would be cumulative.
WE WILL NOT threaten you with the loss of business
opportunities due to your support for Hotel Employees
Restaurant Employees International Union Local 355,
AFL–CIO.
WE WILL NOT threaten to withhold wage increases due
to your support for the Union.
WE WILL NOT inform you that you are receiving a
wage increase as a reward for decertifying the Union.
WE WILL NOT inform you that we are replacing the Un-
ion with an EAR group to address your grievances.
WE WILL NOT inform you of our unlawful withdrawal
of recognition of the Union or say to you that the Union
is no longer your collective-bargaining representative.
WE WILL NOT coercively interrogate you about your
union membership, activities, and sympathies.
WE WILL NOT inform you that you are receiving a
wage increase that the Union was not able to obtain for
you as a reward for decertifying the Union.
WE WILL NOT implement retroactive wage increases
for you to discourage you from joining, supporting, and
assisting a union and engaging in protected, concerted
activities.
WE WILL NOT fail and refuse to bargain with the Union
as the exclusive collective-bargaining representative of
the following appropriate unit:
All full-time and regular part-time transportation em-
ployees, drivers, helpers, dispatch clerks, kitchen em-
ployees, equipment flight set-up employees, storeroom
employees, dishroom employees, production employ-
ees (hot, cold, cutlery/packing, tray set-up, dessert, and
cooks), porters, flight coordinators, lead persons in cold
food, dishroom, storeroom, and equipment flight set-
up, the transportation hourly supervisor, and the store-
room hourly supervisor, employed by the Employer at
its Miami, Florida location; excluding all office clerical
employees, storeroom clerks, maintenance employees,
professional employees, managerial employees, guards,
and supervisors as defined in the Act.
WE WILL NOT fail or refuse to meet and bargain with
the Union upon request.
WE WILL NOT create and maintain an EAR group as a
replacement for the Union to deal directly with you con-
cerning terms and conditions of employment, which are
mandatory subjects of collective bargaining, without
giving the Union notice and an opportunity to bargain.
WE WILL NOT unilaterally implement retroactive wage
increases, which relate to terms and conditions of em-
ployment and are a mandatory subject of collective bar-
gaining, for you with giving the Union notice and an
opportunity to bargain.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD114
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of you in the exercise of
your rights guaranteed by Section 7 of the Act.
WE WILL, on request, bargain collectively with the Un-
ion as the exclusive bargaining representative of the em-
ployees in the unit concerning wages, hours, and other
terms and conditions of employment, and if an under-
standing is reached, embody the understanding in a
signed agreement.
WE WILL disestablish the EAR group we created to re-
place the Union and, upon request by the Union, WE
WILL rescind the unilateral wage increase we granted you
in May 2001.
FLYING FOODS GROUP, INC. D/B/A FLYING
FOODS
Shelley B. Plass, Esq., for the General Counsel.
Harvey M. Adelstein, Esq., Harry J. Secaras, Esq. and Amy J.
Zdravecky, Esq. (Neal, Gerber & Eisenberg), of Chicago,
Illinois, for the Respondent.
Kathleen Phillips, Esq. (Phillips, Richard, & Rind, P.A.), of
Miami, Florida, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. Hotel Employees
Restaurant Employees International Union Local 355, AFL–
CIO (HERE or the Union) filed charges against Flying Foods
Group, Inc. d/b/a Flying Foods (Respondent). A consolidated
complaint and notice of hearing was issued on September 28,
2001. It alleges that the Respondent (a) violated Section 8(a)(1)
of the National Labor Relations Act (the Act), by (1) failing
and refusing since on or about January 30, 2001, to provide a
wage proposal to the Union; (2) showing antiunion videos to
employees and thereby soliciting employees to decertify the
Union; (3) threatening employees with loss of business oppor-
tunities due to their support for the Union; (4) threatening to
withhold wage increases due to employees’ support for the
Union; (5) informing employees that they were receiving wage
increases as a reward for decertifying the Union; (6) informing
employees that it was replacing the Union with an “EAR”
group to address employee grievances; (7) threatening employ-
ees with discharge if they contacted the Union or the Board
about disciplinary issues; (8) soliciting employee support of a
petition to decertify the Union; (9) promising employees wage
increases and other benefits if they decertified the Union; (10)
telling the employees that the Union was decertified and no
longer represented them; (11) interrogating employees about
their union membership, activities, and sympathies; (12) in-
forming employees that they were receiving wage increases
that the Union was not able to obtain for them as a reward for
decertifying the Union; (13) informing employees that they
were receiving wage increases as a reward for decertifying the
Union; and (14) threatening employees with discharge due to
their union membership, activities, and sympathies; (b) violated
Section 8(a)(1) and (3) of the Act by taking certain actions
because employees of Respondent joined, supported, and as-
sisted the Union and engaged in concerted activities and to
discourage employees from engaging in these activities,
namely: (1) implementing a retroactive wage increase for em-
ployees in the unit; (2) verbally reprimanding Luis Hurtado; (3)
issuing a first final warning to Luis Hurtado; (4) suspending
Luis Hurtado for 4 days; and (5) issuing two final warnings to
Luis Hurtado; and (c) violated Section 8(a)(1) and (5) of the
Act by: (1) withdrawing recognition of the Union as the exclu-
sive collective-bargaining representative of the unit; (2) failing
and refusing since withdrawing recognition to meet and bargain
with the Union upon request; (3) failing and refusing by its
overall conduct, including the conduct described above, to bar-
gain in good faith with the Union as the exclusive collective-
bargaining representative of the unit; and (4) without giving the
union notice and an opportunity to bargain: (a) creating an
“EAR” group as a replacement for the Union to deal directly
with employees concerning terms and conditions of employ-
ment; and (b) implementing retroactive wage increases for
employees in the unit. The Respondent denies violating the Act
as alleged.
A hearing was held on March 18–22, May 6–10, and June
10–13, 2002, in Miami, Florida. Upon the entire record1 in this
proceeding, including my observation of the demeanor of the
witnesses and consideration of the briefs filed by the General
Counsel and the Respondent on August 9, 2002, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Illinois corporation, with a place of business
in Miami, has been engaged in providing meals, beverages and
food service equipment2 to the airline industry, including cer-
tain airlines that operate out of Miami International Airport.
The complaint alleges, the Respondent admits, and I find that at
all times material herein, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Raul Burgos, who is the senior vice president of operations
of the Respondent, is responsible for the operations of the 10

1 To the extent that the motions of the Respondent and counsel for
the General Counsel to correct the record are unopposed, they are
hereby granted. The Respondent’s motion to correct the transcript,
counsel for the General Counsel’s motion to correct transcript and
response to Respondent Flying Food’s Motion to correct the transcript,
and Respondent’s response to counsel for the General Counsel’s mo-
tion to correct the transcript and reply to Respondent Flying Food’s
motion to correct the transcript are received in evidence as R. Exh. 47;
GC Exh. 69; and R. Exh. 48, respectively. The Respondent’s unop-
posed corrections should be corrected as follows: [Corrections to the
transcript have been noted and corrected.]
2 The equipment (food carts) is owned by the airline and the Re-
spondent is responsible for housing and maintaining it.
FLYING FOODS 115
facilities that the Respondent has in the United States.3 The
entities operated by Flying Food Group include: (1) Flying
Foods Serve Air Miami, Inc. LLC; (2) Flying Foods Fair, Inc.;
(3) Flying Foods Services, Inc.; (4) Flying Foods Catering, Inc.;
(5) Flying Foods Services of Shanghai, Inc.; and (6) Flying
Foods Group, Inc. The Company filed a name change request
form with the Department of Florida Division of Corporations
in 2001 but Burgos could not recall the exact name that was
given to the new entity which operates out of the Miami facility
at 1650 N.W. 70th Avenue.
According to General Counsel’s Exhibit 4, which is a sum-
mary prepared by the Respondent in response to a subpoena
duces tecum of counsel for the General Counsel, the Respon-
dent, as here pertinent, serviced the following accounts between
November 2000 and August 2001: Air Jamaica, Air France,
Martin Air, Falcon Air, World Airways, Tampa Cargo, North-
west Airlines, Copa Airlines, Alitalia, United Parcel Post,
Cargo Lux, American Transair, BWIA, Aeromar, Gemini, and
D.H.L. Burgos believed that at the time of the trial herein the
Respondent continued to provide service to all of these compa-
nies, except World Airways, but he was not sure if the Respon-
dent continued to provide service to Tampa Cargo, Cargo Lux,
and Aeromar. Respondent has provided service to Air Jamaica
since the Respondent purchased the business from Alfa Foods
in 1996, and Respondent began to provide service to Air France
on March 28, 2001, and to Northwest Airlines on April 1, 2001.
Before November 2000, Respondent provided service to Martin
Air, Falcon Air, World Airways, Tampa Cargo, Copa Airlines,
Alitalia, United Parcel Post, American Transair, BWIA, Aero-
mar, Gemini, and D.H.L. Burgos was not sure when the Re-
spondent began to provide service to Cargo Lux. Respondent
provided service to Asera from December 2001 until February
2002.
Alberto Solano, who worked as a dishwasher and then in
general maintenance in the kitchen for the Respondent at the
involved facility, testified that Monica Wilsher, the controller
of the Respondent at the involved facility, asked him in the
presence of Respondent’s then General Manager Dave Dia-
mond to speak to the employees in his department about voting
for the Respondent in the upcoming election conducted by the
National Labor Relations Board (the Board). Solano told the
employees that the Company needed their votes. Wilsher intro-
duced Solano in December 1999 to a man he identified as Car-
los who Wilsher indicated was the one who was going to repre-
sent the Company in the election. Solano testified that Wilsher
told him that “they would have a salary increase for all the
employees if the company won. If the company didn’t win they
wouldn’t get any because they had to wait for the process to
negotiate with the union and all that.” (Tr. 371.) Wilsher testi-
fied that Solano kept coming to her, he would tell her what was
going on, and he was trying to get support in the dish room area

3 They include facilities at Newark, New Jersey; New York, New
York; Orlando and Miami, Florida; two in Chicago, Illinois; Dallas,
Texas; Los Angeles and San Francisco, California; and Seattle, Wash-
ington. The employees at Midway in Chicago, Illinois, and at JFK in
New York, New York, are represented by labor unions. At the time of
the trial herein, the Respondent was negotiating with respect to a col-
lective bargaining agreement for its employees at San Francisco.
for the Company; and the she never offered Solano a reward for
his support of the Company during the 1999 election. On redi-
rect, Wilsher testified that she never sought Solano out for as-
sistance during the campaign.
The Union won the December 17, 1999 Board election at the
Respondent’s Miami facility. The Respondent filed objections
to the election.
Solano testified that he spoke with Carlos in the lunchroom
as the votes were counted and Carlos said that although the
Company lost, there would be a period of time before the re-
sults were legal.
Two days later, Wilshire called Solano in his working area
and she told him that Carlos was the representative of the Com-
pany. Solano authorized Wilshire to give his telephone number
to Carlos.
The next day Wilshire asked Solano, while they were in Wil-
shire’s office, if Carlos had spoken with him, and when he told
her that Carlos had not called, Wilshire telephoned Carlos and
handed the telephone to Solano. Carlos told Solano that he
needed to speak with him and Solano gave Carlos his home
telephone number. Shortly after 11 p.m. that night Carlos tele-
phoned Solano and told him that he wanted Solano to “make a
sworn affidavit against Adolfo [Morales] and Jim” (Tr. 373),
who are employees of the Respondent, indicating that he had
seen them pressuring or assisting with the other employees to
vote in favor of the Union. Solano told Carlos that he had not
seen them do this and he could not make such a declaration.
Carlos told Solano to think about it and Carlos said that he
would not pressure Solano. Carlos also told Solano that it could
result in better benefits for him and a much better position.
Finally, Carlos told Solano that he was trying to find a way to
appeal the election and annul the results.
Wilsher testified that she did not know who Carlos Rodri-
guez is; that she did recall someone by the name of Carlos Rod-
riguez (as noted below, apparently this is not his correct sur-
name), who the Company hired to help it with the organizing
campaign; that she did not know what firm he is affiliated with,
where he works out of, or the reason he was hired; that Rodri-
guez was there to tell those in management what they could and
could not say or do to the employees; that she did not think that
Rodriguez met with the employees; that she did not know if
Rodriguez met with management; that after the election she
was not sure what involvement he had with the election proc-
ess; that she had conversations with Rodriguez after the elec-
tion “we kind of established kind of like a friendship” (Tr.
1082), but she could not remember what their conversations
were about; that if Rodriguez was at the Respondent’s Miami
facility after the election, it would have been for business pur-
poses; that since the Board election she has had contact with
Rodriguez by e-mail; and that no other employee other than
Solano approached her with respect to assisting with the cam-
paign. On redirect, Wilsher testified that Rodriguez helped then
General Manager David Diamond prepare his remarks to em-
ployees. Subsequently Wilsher testified that she did not recall
but it was possible that she spoke with Rodriguez on the tele-
phone after the Board election; and that she thought that at one
time he gave her his cellular telephone number but she could
not remember his area code.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD116
Five or 6 days later, Carlos telephoned Solano and asked him
if he had thought about the proposal. Solano told Carlos that he
did not want to make that kind of a statement. Carlos told So-
lano that if he did not make that kind of declaration the Union
would win. Solano did not tell Wilshire anything about Carlos’
request.
Burgos testified that he attended employee meetings during
the organizing campaign; that neither he nor Vidal spoke at
these meetings; and that General Manager Dave Diamond and
consultant Carlos Respuro (identified above as Rodriguez),
who he hired, spoke to the employees at these meetings. Subse-
quently Burgos testified that he approved the hiring of Respuro,
who did not testify at the trial herein.
In early March 2000, Andre Balash, the secretary treasurer
and business manager of the Union, telephoned the Respon-
dent’s attorney, Harvey Adelstein, in Chicago, Illinois, indicat-
ing that he was going to be in Chicago for other business and
would like to meet Adelstein and a representative of the Re-
spondent to set up dates with the Respondent to begin negotia-
tions.
On March 16, 2000, Balash met with Adelstein and Burgos
in a restaurant in Chicago. According to the testimony of
Balash, Burgos said the Company in Miami was not doing well,
it was a “bleeding cow” (Tr. 110), and the Respondent was
going to try to get a contract but if things did not turn around
soon, the Respondent would consider getting out of the Miami
market. On cross-examination, Balash testified initially that at
this meeting the parties agreed to negotiate the noneconomics
first. Subsequently, Balash testified that he misspoke and that
this agreement occurred at the May 24, 2001 meeting. Burgos
testified that Raymond Moss, who was the director of human
resources at the time, attended this meeting; that at this meeting
he told Balash that the Miami operation was in a serious finan-
cial situation; it was a “hemorrhaging . . . sick puppy.” (Tr.
1171.) Also, Burgos testified that at this meeting, Balash agreed
to cover all noneconomic issues before they got into the eco-
nomic issues. Adelstein testified that at this meeting Balash
indicated that they should be talking about noneconomics be-
fore they talked about economics, and the Respondent agreed to
that procedure.
On March 29, 2000, the Union was certified as the exclusive
collective-bargaining representative of the involved unit.4
By letter dated March 29, 2000, (GC Exh. 15), Balash ad-
vised Adelstein as follows:

4 GC Exh. 14. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Sec. 9(b) of the Act:
All full-time and regular part-time transportation employees, drivers,
helpers, dispatch clerks, kitchen employees, equipment flight set-up
employees, storeroom employees, dishroom employees, production
employees (hot, cold cutlery/packing, tray set-up, dessert and cooks),
porters, flight coordinators, lead persons in cold food, dishroom, store-
room, and equipment flight set-up, the transportation hourly supervi-
sor and the storeroom hourly supervisor employed by the Employer at
its Miami, Florida location; excluding all office clerical employees,
storeroom clerks, maintenance employees, professional employees,
managerial employees, guards and supervisors as defined in the Act.
I was glad to have had the opportunity to meet with
yourself and your client. I truly hope that we will be able
to establish a healthy labor management relationship.
Please give me a call at your earliest convenience; if
your client would like to further our discussions on how
we might be able to reach a fair agreement.
Soon after this, Balash informed Adelstein that he had to be
in Chicago again to negotiate a national contract and he wanted
to meet with Adelstein and Burgos to discuss possible negotiat-
ing dates.
In mid-April 2000, Balash met Adelstein and Burgos in
Adelstein’s office in Chicago. They selected May 24 and 25,
2000, for negotiations. Burgos testified that he, along with
Adelstein, was responsible for negotiating a collective-
bargaining agreement; that they met Balash in Adelstein’s of-
fice and then they went to the same restaurant they went to for
the prior meeting; and that he reiterated that the Miami opera-
tion was a very sick puppy and the noneconomics would be
resolved before getting into the economics. Adelstein testified
that at this meeting Balash was advised that the Company was
in the process of renegotiating its health insurance program and
Balash said that he would have no problem if the Respondent
put it into effect before negotiations began. On cross-
examination, Adelstein testified that at both this and the earlier
meeting with Balash, it was agreed that the noneconomic issues
would be discussed first.
On May 24, 2000, Balash, Union Organizer Marcos Armero,
and the employee bargaining committee met at 10 a.m. at the
La Quinta hotel in Miami with Adelstein, Burgos, Diamond,
and Daysma Grana, who is Respondent’s human resources
manager.5 The Union submitted a proposed collective-
bargaining agreement to the Respondent at this session (GC
Exh. 16), and the Respondent submitted noneconomic propos-
als, General Counsel’s Exhibit 17, to the Union.6 The meeting
lasted from 2 to 3 hours. As noted above, Balash testified that
at this meeting the parties agreed that noneconomics would be
discussed first. Burgos testified that he and Adelstein served as
the Company’s chief spokespersons; that he had full authority
to agree to proposals on behalf of the Company and he in-
formed the Union of this; that Balash served as the Union’s
chief spokesperson; that proposals were exchanged; that the
Union had an economic proposal and after some discussion it
was indicated that economics would be covered after the non-
economics were agreed to; that the union committee members
did not object to discussing the noneconomic proposals first;
and that it was agreed that while they would sign off on provi-
sions as they negotiated, there was no agreement until there was

5 It was stipulated that Adelstein is a partner in the law firm of Neal,
Gerber & Eisenberg in Chicago.
6 The Union’s wage proposal for all bargaining unit employees reads
as follows:
1st Year $2.00 per hour
2d Year $ .60 per hour
3d Year $ .60 per hour
The sheet, GC Exh. 18 without the modifications noted thereon, titled
“Local 355 Economic Proposals for Flying Food Group in Miami,” also
contains a “Medical Benefit Proposal.”
FLYING FOODS 117
agreement on the entire contract. Burgos also testified that
Adelstein was a spokesman for the Respondent but Adelstein
did not have authority to bind the Respondent to proposals and
to the contract agreement; that he had final authority in this
regard; and that this was not the first occasion when the Re-
spondent did not have an economic proposal at the beginning of
bargaining but on the other occasions it did not involve the
Union involved herein. Adelstein testified that he was the chief
spokesman for the Respondent in the negotiations along with
Burgos; that he had authority to bind the Company for a new
collective-bargaining agreement but he would always confer
with Burgos regarding operational issues; and that he took
notes on a yellow pad and on the union and company written
proposals. The Respondent’s Exhibits 21 and 22 are the Com-
pany’s noneconomic proposal and the Union’s proposals of
May 24, 2000, respectively. Both contain handwritten notes of
Adelstein. And Respondent’s Exhibit 23 is a copy of the notes
that Adelstein took on a legal pad at this session. On rebuttal,
Balash testified that during the first negotiating session none of
the proposed articles were okayed by the parties, there were no
changes made to the language of any of the provisions pro-
posed at that meeting, and no articles were signed off on at that
time.
On May 25, 2000, Balash, Armero, and the employee bar-
gaining committee met at the La Quinta hotel in Miami with
Adelstein, Burgos, Diamond, and Grana. The Union modified
its health and welfare proposal, and it advised the Respondent
that it would be willing to go over the Respondent’s non-
economic proposal, vis-à-vis trying to work with both docu-
ments, because the structure was similar to the Union’s pro-
posal. The Union’s modified medical proposal, which was
given to the Respondent at this meeting, was received as Gen-
eral Counsel’s Exhibit 18.7 Balash testified that Adelstein put it
aside and when Adelstein said that they would go through the
noneconomic proposals first he agreed. The parties went
through the Respondent’s proposal but they did not reach any
agreements at this 4-hour meeting. On cross-examination,
Balash testified that at either this or the May 24, 2000 session
Burgos said that the Company was a bleeding cow, it was hem-
orrhaging, and this was a recurring theme throughout the nego-
tiations he had with Burgos. Balash testified that the Union
wanted to meet in June but since Burgos had a busy schedule,
the parties agreed to meet on July 11 and 12, 2000. Burgos
testified that the parties mutually agreed to meet again on July
11 and 12, 2000. Respondent’s Exhibit 24 is a copy of the notes
Adelstein took at this session. Adelstein testified that at this
session the parties, among other things, discussed tentatively
approving provisions so that they would not have to be renego-
tiated.
On July 11, 2000, Balash, Armero, and the employee bar-
gaining committee met at the La Quinta hotel in Miami with
Adelstein, Burgos, Diamond, and Grana. During this 4-hour
bargaining session the parties reached agreement on some of
the noneconomic proposals. Respondent’s Exhibit 25 is a copy

7 A clean version of GC Exh. 18 was presented to the Company on
May 24, 2000. The version of this exhibit with the handwritten nota-
tions on it was presented, as noted, to the Company on May 25, 2000.
of the notes that Adelstein took at this session. Adelstein spon-
sored Respondent’s Exhibit 26, which are a variety of company
or union proposals in addition to those exchanged on March 24,
2000.8
On July 12, 2000, Balash, Armero, and the employee bar-
gaining committee met at the La Quinta hotel in Miami with the
Respondent. During this 4-hour bargaining session the parties
reached agreement on some language. Balash testified that the
Union wanted to meet in August but the Respondent could not
so they arranged to meet on September 6 and 7, 2000. Burgos
testified that Balash said that he was tied up in August and the
parties mutually agreed to meet in September. Respondent’s
Exhibit 27 is a copy of the notes Adelstein took at this session.
On rebuttal Balash testified that when the parties were schedul-
ing the next session neither he nor Armero was unavailable in
August 2000, and that Adelstein said that Burgos was not avail-
able in the month of August.
On September 6, 2000, Balash, Armero, and the employee
bargaining committee met at the La Quinta hotel in Miami with
Adelstein, Burgos, Diamond, and Grana. During this 4-hour
bargaining session the parties reached agreement on some of
the noneconomic provisions. On cross-examination, Balash
testified that Burgos stated at this session that the Respondent
did not get the British Airways account but he did not recall
Burgos saying that there might be layoffs as a result of this.
Respondent’s Exhibit 28 is a copy of the notes Adelstein took
at this session.
On September 7, 2000, Balash, Armero, and the employee
bargaining committee met at the La Quinta hotel in Miami with
Adelstein, Burgos, Diamond, and Grana. During this 4-hour
bargaining session the parties reached agreement on some of
the noneconomic proposals, and it was decided to type up (1)
what was tentatively agreed upon, and (2) what had not been
agreed upon. According to Balash’s testimony, the parties
agreed to meet on October 18 and 19, 2000. Burgos testified
that the parties agreed to meet in October 19 and 20, 2000.
Respondent’s Exhibit 29 is a copy of the notes Adelstein took
on September 7, 2000.
Balash testified that prior to the October 18, 2000 meeting,
the employee bargaining committee informed the Union that
they had heard that the Respondent was going to merge with a
competitor and the employees were concerned.
On October 18, 2000, according to the testimony of Balash,
he, Armero, and the employee bargaining committee met at the
La Quinta hotel in Miami with Adelstein, Burgos, Diamond,
and Grana. Balash testified that the Respondent gave the Union
the tentative agreement that the Respondent had typed; that the
Union brought up what it had heard about a merger and it pro-
posed incorporating successor language in the collective-
bargaining agreement; that Adelstein told him that he was hal-
lucinating but Adelstein would look at whatever language
Balash proposed; that he told Adelstein that he would go to the
Union’s international council to have the language drawn up
and he would send it to the Respondent; and that negotiations
broke off at that point because successor language was “key”

8 At one point, Adelstrin mistakenly testified that this meeting oc-
curred on June 11, 2000. He later corrected his testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD118
(Tr. 130), if there was going to be a merger. The
“TENTATIVELY AGREED UPON PROVISIONS” and
“NON-AGREED UPON, NON-ECONOMIC ISSUES” which
were given to the Union at this October 19, 2000 meeting, were
received as General Counsel’s Exhibits 19 and 20, respectively.
On cross-examination, Balash testified that it was possible that
Burgos was delayed and he did not arrive for this session; that
the negotiations were not continued for him to review the two
documents that Adelstein gave him at this session; that he be-
lieved that the successorship issue arose at this session; that
Respondent’s Exhibit 1, which are his notes of some of the
negotiations, indicate that there was a meeting on October 19,
2000, where the Company gave the Union proposals to review
and Burgos is not included in the list of those in attendance;
that there was a meeting on October 20, 2000, where the suc-
cessorship situation was discussed and it was indicated that the
Union would send the successorship language to the Company
from its international; that at the October 20, 2000 session he
stated that he saw no point in proceeding without the successor-
ship language because the whole process could be moot; and
that it is possible that he told Adelstein that he would have the
successorship language within a week.
Respondent’s Exhibit 32 is a copy of the notes Adelstein
took on October 19, 2000. He testified that there were two ses-
sions in October 2000, namely October 19 and 20; and that
during the October 19, 2000 session he gave Balash his draft of
the agreed upon noneconomic provisions (R. Exh. 30), and his
draft of the noneconomic provisions which had not been agreed
to yet (R. Exh. 31). On cross-examination, Adelstein testified
that Burgos was not present for the October 19, 2000 meeting.
Burgos testified that he was unable to attend the October 19,
2000 meeting but he did attend the October 20, 2000 negotiat-
ing session. According to the testimony of Burgos, this was the
meeting where Balash (1) alleged that there was an attempt to
sell the Respondent to one of its competitors, and (2) demanded
that, although the parties had agreed on successorship language,
they agree to new successorship language which would be
drawn up in about 1 week. Adelstein testified that Balash broke
off this meeting indicating that he would have successorship
language drafted and he would submit it to Adelstein the fol-
lowing Tuesday. Respondent’s Exhibit 33 is a copy of the notes
Adelstein took at this session. On cross-examination, Adelstein
testified that Balash also complained at this meeting that the
Respondent was hiring employees at higher rates than current
employees were being paid.
On November 14, 2000, Balash sent the Respondent the
aforementioned successor language (GC Exh. 21).
About November 25, 2000, Balash telephoned Adelstein
who indicated that he had not reviewed the successor language
with his client yet. Adelstein told Balash that he would get back
to him.
By letter dated November 28, 2000 (GC Exh. 30), Armero
made the following request of Grana:
The Union is requesting a list of all Employees including ad-
dresses and telephone numbers, for reason of contacting them.
Before Thanksgiving 2000, Armero told Balash that the em-
ployees of the Respondent had told him that the Respondent
was hiring a number of workers. Balash told Armero to send a
letter to the Respondent requesting the names, addresses, classi-
fications, and any pertinent information regarding the new
hires. Balash believed that the Union received the information
it requested by late November or early December 2000. On
cross-examination, Balash testified that the Union insisted on
successorship language because it was concerned that the
Company was hiring a number of new employees; that the
number of employees specified by the Company was not dis-
proportionate with the number of employees that the Union had
organized in December 1999; but that nonetheless the Union
was still adamant about securing appropriate successorship
language.
By fax dated December 1, 2000 (GC Exh. 31), Grana sup-
plied Armero with the employee names and telephone numbers.
Armero telephoned Grana and left a message that he needed the
employees’ addresses. Grana wrote back indicating that she
would need a couple of days to get the information from corpo-
rate.
Burgos testified that Balash sent the new successorship lan-
guage the first week in December 2000.
By fax dated December 6, 2000 (GC Exh. 32), Grana sup-
plied Armero with the names and addresses of the employees
(along with those for the managers), indicating which employ-
ees were terminated. Grana testified that Respondent’s corpo-
rate office in Chicago, Illinois sent the list to her; that she
placed “T” for termination next to certain of the entries; that
she did not know why there was a line drawn through Antoine,
Betty since she was employed as of the date of the printout; and
that she noted on the printout who was in management. On
cross-examination, Grana testified that Antoine is in the bar-
gaining unit and was on the eligibility list for the election in
December 1999.
According to the testimony of Balash, in early December
2000 Adelstein contacted him, indicated that he needed more
time to review the successor language, and a January 31, 2001
negotiation session was scheduled. Adelstein testified that Am-
ero telephoned him and asked if they could schedule a meeting
in January 2001; and that the scheduled meeting was post-
poned.
By memo from Grana dated “1/11/01” (R. Exh. 10), Luis
Hurtado was advised as follows:
As an hourly employee you are required to clock in
and clock out in a daily basis. If you are having problems
with your FFG ID please see me, so we can fix it.
But I can not be inputting your time in and out every-
day. The ‘adjustment log’ should be only used by man-
agement to approve overtime and due to certain circum-
stances . . . [when] the employee can not punch. [Empha-
sis in original.]
On about January 28, 2001, Balash asked to meet with Re-
spondent on the night of January 30, 2001.
On January 30, 2001, at 8 p.m. Balash met with Adelstein
and Burgos at the Marriott hotel restaurant near the airport in
Miami because, according to Balash’s testimony, the Respon-
dent’s employees were growing impatient about the fact that
they were not getting any response on the wage proposal, and
FLYING FOODS 119
he wanted to see if they could facilitate the discussion on the
economic issues. According to his testimony, Balash told Adel-
stein and Burgos that they needed to start talking about wages,
and Burgos said that the company was in a very bad financial
situation at that time. Balash testified that Burgos then left to
use the rest room and Adelstein told him that he was hearing
the Union did not have strong support, and he asked Balash
why didn’t the Union “just walk away from it.” (Tr. 137.)
When Burgos returned to the meeting, he also said that “they’re
hearing from workers that the union’s losing its support” (Tr.
137). Balash told them that the majority of the people are for
the Union. Balash was then asked to take a look at the Respon-
dent’s financial records. He told them that he would have to get
back to them on that. According to his testimony, Balash told
Adelstein and Burgos that the Union was looking to receive a
wage proposal from the Company and Burgos said that the
Respondent was not in a position to give any type of wage pro-
posal that the Union would accept. On cross-examination,
Balash testified that Adelstein may have said that any company
“proposal would be a wage freeze or perhaps concessions and
that’s why they were reluctant to put something on the table.”9
(Tr. 192.) Burgos testified that at this meeting. Balash conceded
that the successorship language was not necessary; and that he
told Balash that the Respondent was a very sick puppy, the
Union’s wage proposals were not sound, and Balash was rais-
ing the expectations of the committee. Adelstein testified that at
this meeting Balash withdrew his successorship proposal; that
Burgos told Balash that people were becoming very unhappy
with the Union; and that when Balash asked him what he
should do, he told Balash that he could lower the expectations
of the employees or he could disclaim interest and walk away.
On cross-examination, Adelstein testified that Bergos told
Balash that there were rumblings that employees at the facility
were becoming disenchanted with the Union and Balash should
lower the expectations of the employees or he was going to lose
the unit; that Burgos told Balash that employees were disaf-
fected; and that when he suggested to Balash that he disclaim
interest and walk away, Balash said that he did not intend to do
that, and he told Balash that he did not think Balash would. On
rebuttal Balash testified that there was no discussion of the
successorship language at this meeting.
On January 31, 2001, at 10 a.m. Balash, Armero, and the
employee bargaining committee met at the at the Marriott Hotel
in Miami with Adelstein, Burgos, and Grana. When the Union
tried to discuss wages, Burgos, according to the testimony of
Balash, said that the Company was hemorrhaging, it was a
bleeding cow, they were very far apart in their proposals, and
what the Company had to offer would not be acceptable con-
sidering what the Union had on the table. When Balash men-
tioned that the Union had a problem with the fact that the Re-
spondent had not included checkoff language in its proposed
contract, Adelstein indicated that the Respondent wanted some
type of disclaimer language incorporated into the checkoff
language. Balash testified that the Union caucused and agreed

9 While this testimony was given when Balash was testifying about
the January 30 and 31, 2001 meetings, it is not clear that he was ruling
out the fact that these words may have been uttered at some other time.
to modify their wage proposal down to $.75 per hour over the 3
years of the contract; and that Burgos said that the Company
would have to take a look at the numbers and get back to the
Union on it. The Union indicated that it wanted the company
fringe benefit package in existence at that time to be incorpo-
rated into the collective-bargaining agreement. Balash was told
that this would have to be packaged all together because it is
economics. On cross-examination, Balash testified that at the
outset the parties summarized what had been accomplished and
what remained open to discuss; that he said that he wanted to
get a contract in the next couple months; that the parties were
close to completing the noneconomic issues; that the bargaining
committee renewed its May 2000 wage proposal, which is
summarized in General Counsel’s Exhibit 18; that Burgos said
that the Respondent would have to close its doors if it agreed to
the Union’s wage proposal, it was not financially feasible, it is
hemorrhaging, it is a bleeding cow; that at one of the meetings
the Company passed around a spread sheet for the first quarter
of 2001 and Burgos explained it, and he was not sure if it was
done at this session or at the next session; that as part of the
aforementioned presentation, Burgos said that there was a defi-
cit of almost $100,000 in the first quarter of 2001; that after
Burgos made his presentation, the Union caucused and came
back with a proposal of an increase of $.75 an hour but he was
not sure if the Union also proposed to shorten the term of the
contract to 2 years; that Burgos probably said that even with the
revision of the wage proposal the Company could not afford the
proposal; that Burgos again made the financials available to the
Union; that it is possible that he told the Company at this ses-
sion that he would have the union auditors call Adelstein to set
up an appointment; that Respondent’s Exhibit 2 are his notes of
this session; that, as indicated in his notes, the Union withdrew
the successorship language which it had previously proposed,
Burgos made a presentation to the committee which indicated
that the current economic condition at the plant is bad, the Un-
ion proposed to cut the term of the contract to 2 years, and he
was supposed to call Thomas Havey about auditing the Com-
pany’s financial records; that at the end of this session he stated
that the Union was going to move quickly ahead with the audit,
Havey would contact Adelstein to schedule an audit time so
that they could set up another meeting; and that another session
was not scheduled at this time because the Union was going to
wait for the outcome of the audit. Armero testified that he be-
lieved that at this session the parties achieved agreement on all
of the noneconomic issues, the Union then raised the issue of
economics, and the Company did not make a counterproposal
even after the Union reduced its proposal from $2 to 75 cents.
Armero also testified that at this session Balash asked for a list
showing the wages of all bargaining unit employees, including
new hires. Adolfo Morales, an employee of the Respondent
who was on the Union’s bargaining committee, testified that
the Respondent indicated that it was not able at the time “to
give a salary increase according to the proposal . . . [that] the
Union has submitted” (Tr. 331). Burgos testified that he used a
flip chart to explain to the employees how much money the
Respondent was losing at the time; that at this time the parties
had agreed to about 95 percent of the language for the non-
economic proposals; that after the Union caucused, it came
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD120
back with a wage proposal; that he told Balash that it was very
irresponsible of him, after the Respondent’s financial presenta-
tion, to change just 1 year; that he told the Union it could audit
the Respondent’s books and Balash accepted the offer; and that
he told Balash that the Company could not afford the increase
the Union was proposing. On cross-examination, Burgos testi-
fied that as of January 31, 2001, 90 to 95 percent of the non-
economic issues were agreed to; that the information he dis-
cussed with the bargaining committee was the Respondent’s
operating statement for the year 2000; that subsequently the
Union deleted the last year from its original economic proposal
so that the proposal was for 2 and not 3 years; that the offer to
the Union to review the Company’s books was for the Com-
pany nationwide; and that he made the same offer to audit the
Company’s books to the Union representing the employees at
the Respondent’s JFK facility in New York, New York, during
negotiations which occurred at the same time as the negotia-
tions involved herein.10 On rebuttal, Balash testified that he
believed that the successorship language was touched on at this
meeting.
According to the notes Adelstein took at this session (R.
Exh. 34), Wilsher attended the January 31, 2001 bargaining
session. She was acting general manager of the Respondent’s
Miami facility between November 2000 and February 2001.
Adelstein testified that he believed that there was still a non-
economic issue open at the end of the January 31, 2001 meet-
ing, namely some seniority language having to do with skill and
ability; that the Union dropped from $2 an hour to 75 cents an
hour for the first and second year of a 2-year contract and the
Union wanted the Company to reduce the copay 25 percent a
year over 2 years; and that at 1:45 p.m. someone from the Un-
ion identified only as George joined the negotiations and said,
“[W]hy not give us a realistic counter, why waste more time”
(Tr. 1390), and Balash said the he would have Havey contact
Adelstein in Chicago to audit the Respondent’s books.
By letter dated February 1, 2001 (GC Exh. 33), Armero
asked Grana for “[a] list of employees that include names, ad-
dress[es], phone numbers, wages and hire dates, for all employ-
ees including NEW HIRES.” (Emphasis in original.) Armero
testified that the information was sought by the Union to de-
termine whether to modify its wage proposal even lower than
what it had originally.
By letter dated February 13, 2001 (GC Exh. 22), Balash ad-
vised Adelstein as follows:
In May of 2000 the Union submitted both an economic
and non-economic proposal to the company.
The economic proposal consisted of wage increases
and a reduction in health care co payments; we also stated
that all other benefits such as sick days, vacation and holi-
days remain the same, however the union has not received
any economic proposal from the company.
As you already know the Union has modified its eco-
nomic proposal in an effort to reach an agreement.

10 At the time of the hearing herein the Respondent had a collective-
bargaining agreement with the Union representing its employees at the
JFK facility in New York.
The Union respectfully requests that the company
submit an economic proposal to the Union within the next
several days. I will then review the proposal with the
committee and follow up with the company immediately.
Thank you for your attention on this matter.
On cross-examination, Balash testified that between the end of
the January 31, 2001 bargaining session and this letter he did
not advise the Respondent that the Union was not interested in
auditing the financial records of the Respondent.
According to his testimony on or about February 15, 2001,
the Respondent’s truckdriver Jesus Treto, along with 8 to 10
other of Respondent’s employees, was shown two videos by
Angel Sanchez, and Grana, and Mazier was present. The first
video shown dealt with training and the second video shown to
employees dealt with a union. Treto testified that Sanchez told
the employees present that the Union was no good for them
since the Union was only interested in strikes and the Union
was not interested in benefits for employees. Treto also testified
that the lady who is the president and owner of the Company
appeared on the video and she said that the Company had the
opportunity to grow, and she and Sanchez, in person, said that
without the Union the employees would have more benefits,
without the Union the Company could continue forward, and
the only thing the Union would do would be to take money out
of the employees’ pockets. Treto further testified that Sanchez
and Grana said the Union would obstruct the progress of con-
tracts for new business. On cross-examination, Treto testified
that his partner Julio “Nogueva” was at this meeting;11 that he
did not think that Burgos was on the video with Gin;12 that
Sanchez said that the Union obstructs or stops the incoming
business that they could obtain with new companies, and Grana
said this also; and that Grana said that the Union would prevent
the Company from getting new business. Treto further testified
that when he previously worked for Sky Chef he was required
to be a member of the Union.
By fax dated February 16, 2001 (GC Exh. 34), Grana sup-
plied Armero with the wages but she indicated that she was not
sending the telephone numbers and addresses because she had
sent them to him a couple of weeks earlier.
By letter dated February 20, 2001 (GC Exh. 23), one of the
Respondent’s attorneys, Amy Zdravecky, advised Balash as
follows:
I received your letter yesterday requesting the Com-
pany’s response to the Union’s economic proposal. As we
explained to you during our last negotiations on January
31, 2001, the Company simply cannot afford the wages
and benefits proposed by the Union in its last economic

11 He was asked if it was “Noguera” and he replied that he thought it
is “Nogueva.” When subsequently testifying about a later showing of a
video about a union, he answered, “correct” when asked, “[w]as Mr.
Noguera in that meeting with you.” It is noted that GC Exh. 55, which
is a list of active and terminated employees for the first 8 months of
2001, contains an entry for Julio Noguera but it does not contain an
entry for Julio Nogueva.
12 Burgos does appear on a video with Gin, a transcript of which was
received as R. Exh. 36.
FLYING FOODS 121
proposal. For that reason, we offered the Union the oppor-
tunity to have its accountants (are also located in Chicago)
review the Company’s finances to prove that we could not
afford your proposal. At the time, you accepted our offer
and advised us that we would be contacted directly by
your auditors to arrange for the review. To date, we have
not been contacted.
Please let us know if we can assist you in arranging a
mutually convenient time for your auditors to review the
Company’s financial records. We promise to assist you in
any way we can in accomplishing this task. We feel that
once the Union has had a chance to review the Company’s
financial records, you will have a much better understand-
ing of the Company’s financial position and we hope to be
able to reach a reasonable agreement on the economic
terms of the contract.
Please contact me for assistance in arranging a review
of the Company’s financial records or if you have any
questions regarding this matter.
Adelstein testified that he and Zdravecky discussed this re-
sponse to Balash’s above-described February 13, 2001 letter.
Hector Enrique Fernandez Rodriguez worked for the Re-
spondent from February 21, 2001, until March 1, 2002.13 He
testified that a few days after he was hired, he and other named
drivers were shown a training video and a video about unions
by Supervisor Angel Sanchez; and that:
The video was a dramatization of the people that be-
long to the union of when you try to do the work and then
delivering some messages that the union is not good for
the worker that it doesn’t resolve the workers’ problems,
that it only survives because of the work of the worker. In
summary that it cannot deliver and that the owner is the
only one that can resolve the problems of the employees.
[Tr. pp. 391 and 392.]
Rodriguez further testified that after the video Sanchez told the
employees that he formerly was in a union, that union did not
provide many benefits, it just got him into problems, and it was
a very negative experience in his life; and that after seeing the
video about unions, he and another named driver approached
Sanchez and told him that
we had signed with the union and we didn’t know what the
union was about but then after seeing the video we had real-
ized that we had gotten into a big problem and that, you
know, we wanted to get out. [Tr. pp. 394 and 395.]
Hector Rodriguez testified that some days later Mazier ap-
proached him and another named employee and asked them,
while they were working, to sign a document to indicate that
they did not want the Union in the working place. He did not

13 According to his testimony, he was unjustly terminated when he
had emergency surgery and belatedly supplied the documentation to the
Respondent showing that he had an operation because he had to wait to
get the documentation from the surgeon. He gave an affidavit to the
Board on March 13, 2002.
read the paper but relied on what Mazier told him was on the
paper. Both he and the other employee signed the paper.14
According to the testimony of Burgos, on February 28, 2001,
Air France gave the Respondent 30 days notice that the Re-
spondent’s bid had been accepted, which meant that service
was to start on March 28, 2001.
Grana testified that in late February and early March 2001
the Respondent started hiring employees to service the Air
France and Northwest accounts, and eventually it added ap-
proximately 60 employees to its work force of about 100 em-
ployees.
According to the testimony of Burgos, about the first week in
March 2001, Northwest Airline accepted the Respondent’s bid
and service was scheduled to begin the first week of April
2001.
By letter dated March 1, 2001 (GC Exh. 24), Balash advised
Zdravecky, as here pertinent, as follows:
After careful consideration HERE, Local 355 does not
see any reason to review the company’s financial situation
in Miami.
The Union has no reason to doubt the company’s eco-
nomic situation. However we believe that [the] company is
obligated to make a counter offer to our proposal.
When we receive your proposal we will then meet with
the workers and take [a] vote whether to accept the eco-
nomic offer or not.
If you have any questions or concerns please contact
my office at . . . .
. . . .
On cross-examination, Balash testified that this was the first
time since the January 31, 2001 bargaining session that the
Union advised the Respondent that the Union did not desire to
audit the Respondent’s financial records; and that after he sent
this letter, the March 28, 2001 bargaining session was sched-
uled through Adelstein. On redirect, Balash testified that the
Union choose not to audit the Respondent because the Union’s
international research department looked at the Company as a
whole, not just Miami, and the Company was a $100 million
company, it had revenues in excess of $100 million, and it con-
tinued to grow. Adelstein testified that this was the first time he
learned that the Union was not interested in auditing the finan-
cial records of the Respondent; and that the parties scheduled
the next negotiating session.
General Counsel’s Exhibits 49(a) through (j) are staffing
requisitions which specify “Air France & Northwest” as the
justification for the new positions. Two of the forms indicate
that the position was posted “3/01/01.” And one of the forms
indicates that position number 20, viz, lead dishwasher, was
posted “3/23/01.” Otherwise the posted date is not specified in
the box on the form. Grana testified that she prepared all of the
postings and posted them for all of the above-described staffing
requisitions.
The former general manager at the Respondent’s Miami fa-
cility, Victor Vidal, testified that there was a contract between

14 It is noted that there is an entry for “Hector E. Fernandez” on L. 1
of R. Exh. 38(f). The entry is dated “4–12–01.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD122
Air France and the Respondent; that there was an actual con-
tract between the Respondent and Northwest Airline; that the
Respondent started the catering of Air France flights in late
February; that in the first 2 months of service to Air France, and
up to the time he left the Respondent in September 2001, there
was no reason for him to think that Air France might cancel the
contract; that he did not remember the date the Northwest con-
tract was signed but he recalled that service started 4 days after
service to Air France started;15 and that there was no reason for
him to fear that the Northwest contract would be lost while he
was general manager of the Respondent from February 2001 to
September 2001. On redirect, Vidal testified that the Respon-
dent was months into providing service to Air France before it
determined whether the start up met the projections and it was
the same with Northwest; that just because the Respondent had
projections that it was going to make a certain amount of
money, it did not mean that the Respondent would actually
make that money from either Air France or Northwest; that Air
France reached about 70 percent of the projection and North-
west reached about 50 percent of the projection; that when he
first came to the Respondent it was losing between $3000 and
$4000 a week in Miami; that while management expected the
financial situation to improve at the Miami facility with the Air
France and Northwest accounts, when the Respondent started
servicing Air France and Northwest things did not improve
financially but rather it got worse; and that 1 month after ser-
vice began the Respondent got the actual numbers on the Air
France and Northwest accounts and realized how far off the
projections were.
General Counsel’s Exhibits 50(a) through (j) are the postings
for specified positions in administration, production, transporta-
tion, sanitation, and storeroom. All of the positions were first
posted on either March 1 or 2, 2001, except for lead dishwash-
ers which was first posted on March 23, 2001, and the dispatch
clerk in transportation which was first posted on April 23,
2001. Grana testified that the Respondent did not hire any per-
sons to fill the jobs covered in these postings prior to March 1,
2001.
Noguera was hired as a truck driver by the Respondent in the
first week of March 2001. He had previously worked for the
Respondent for 2 years and voted in the December 17, 1999
Board election. During his first week after he was hired by the
Respondent in March 2001, he was shown two videos in a con-
ference room at the Respondent’s facility with about 10 other
employees. Angel Sanchez and Grana were present. Noguera
testified that one of the videos was about the work and there
was also a 35-minute video about someone who had lost their
job and the Union did not do anything about it “and they never
resolved any salary issue to the employees.” (Tr. 244.) On redi-
rect, Noguera testified that when Grana was talking about the
union video it was indicated “[t]hat the union didn’t resolve
anything, that they didn’t increase salary, that they didn’t do
anything.” (Tr. 261.) On re-cross, Noguera testified that Grana
did not say anything except to look closely at the video and to

15 When counsel for the General Counsel indicated that she had sub-
poenaed the Northwest agreement and it was not produced, one of the
attorneys for the Respondent stated that it does not exist.
make their own conclusions, and the whole video was negative
about the Union.
According to the testimony of Noguera, about 1 week after
he was shown the video about a union, a blond lady who
worked with Grana approached him with a list with various
signatures and asked him to sign a paper to decertify the Union.
Noguera, who at the time was preparing a flight, told the
woman that he was busy and maybe later. Noguera testified that
he was then called to the cafeteria by Mazier who spoke to him
about the Union; that Mazier told him to speak to Jesus and to
other people to decertify the Union; that he told Jesus that each
employee should make up their own mind; and that he did not
sign the decertification petition. On redirect, Noguera testified
that he had never spoken with the woman from the personnel
department before she asked him to sign the decertification
petition; and that when she asked him to sign the decertification
petition she told him that Mazier had gotten him the job and
Mazier was his friend. According to Noguera’s testimony, the
woman works in the same office as Grana.
Respondent’s Exhibit 3 is a leaflet to the employees of the
Respondent about a strike, work stoppage, or other work action
vote to be held on March 21, 2001. As here pertinent it indi-
cates as follows:
On Wednesday March 21, 2001 there will be a voting at the
Local Union to decide on Work Stoppage, Strike or other
Work Action. This will take place if WE DO NOT reach an
agreement on the negotiation set for March 28, 2001.
On cross-examination, Balash testified that Adelstein tele-
phoned him and said, “[W]hat the ‘f’ are you doing? . . . you’re
painting yourself into a corner.” (Tr. 210.) Adelstein told
Balash about the incoming work from the Air France and
Northwest Air accounts and how important it was to avoid a
work stoppage at all costs because of the need for a successful
start up of those operations. Balash honored Adelstein’s re-
quest.
According to the testimony of Balash, on March 28, 2001, at
the Intercontinental Hotel in Miami, before the negotiating
session, Burgos and Adelstein told him that they were not pre-
pared to give the Union a reasonable wage offer at the time and
what they had would not be acceptable to the Union; that the
Respondent was acquiring two new accounts and after startup
the Respondent would be able to give the Union a wage pro-
posal which the Respondent thought would be acceptable; and
that they would have a clearer picture of what their financial
situation was by May 3, 2001. According to his testimony,
Balash told Adelstein and Burgos that the employees were
really getting anxious, they were frustrated, they had not re-
ceived a wage increase in a long time, and he would take the
Respondent’s position back to the committee and talk to them
about it. Balash met with the committee before the bargaining
session began, and he told them what the company representa-
tives had just told him in the “off the record” meeting. Balash
testified that the committee members were very angry and frus-
trated and wanted to organize to walk off the job. Balash told
the committee members that this would not be advisable since
the Respondent had just hired a number of new employees and
had almost doubled the size of its staff since the Board election.
FLYING FOODS 123
The bargaining session began at 11 a.m. and it lasted about 2.5
hours. Present were Balash, Armero, and the bargaining com-
mittee for the Union, and Adelstein and Burgos for the Com-
pany. Grana came to the session after it started. According to
Balash’s testimony on direct, the Company passed out a finan-
cial spread sheet showing its quarterly returns and earnings,
Burgos went over the spread sheet and tried to explain it. Bur-
gos also indicated that with the new accounts, the financial
picture should change. When the company representatives, later
in this session, asked that the spread sheets be returned, the
union representatives gave them back. Balash testified that
during negotiations the Company did indicate that it had some-
thing to offer in terms of a wage proposal but when he asked
the company representatives to show it, Adelstein said,
“[Y]ou’re not going to like it.” (Tr. 149.) Balash testified that
he demanded to see the proposal and Adelstein said, “[I]t
doesn’t make sense for us to show you anything because you’re
just not going to like it” (Tr. 149); that Adelstein said the Union
would not accept it and he told Adelstein that the Company
should let the Union be the judge of that; that Adelstein said
“no” (Tr. 150); and that he then said, “[O]kay, well we’ll just
have to wait until May 3rd.” (Tr. 149.) The parties agreed to
meet again on May 3, 2001. Balash testified that Burgos said
that “hopefully they would get back to . . . [the Union] with a
reasonable economic offer.” (Tr. 150.) On cross-examination,
Balash testified that during his off-the-record discussion with
Adelstein and Burgos he was told about the importance of the
startup of the Air France and Northwest accounts, the Respon-
dent did not want any disruptions at the worksite, and maybe he
was told it was in the best interests of the Company and the
employees; that during the off-the-record discussion with Adel-
stein and Burgos, he told them that he was not pleased with the
May 3, 2001 date that they were proposing, he really felt that it
was time that they provide the Union with a wage proposal, but
to have a positive labor management relationship he took them
at their word and he said okay; that he told the bargaining
committee between the off-the-record discussion and the bar-
gaining session that the Company was going to suggest waiting
until May 3, 2001, to make a wage proposal; and that during
the bargaining session the Company explained to the bargain-
ing committee why it wanted to wait until May 3, 2001, to
make the wage proposal. Union bargaining committee member
Morales testified that his affidavit to the Board is correct where
it indicates that at this meeting the Respondent brought up the
new contracts which would get them more money and asked if
they could give the Company’s money proposal at the next
session which was scheduled for May 3, 2001. Morales also
testified that the Union was willing to wait until May 3, 2001,
for the Company’s wage proposal.
Burgos testified that he and Adelstein met with Balash out of
the presence of the union bargaining committee before the ne-
gotiating session began; that he told Balash that the passing out
of strike leaflets was very detrimental to the employees of the
Company; that he told Balash that the Respondent could come
up with an economic proposal at this session but the Union
would not be happy with it and if the Union gave the Company
30 days to see how the Air France and Northwest start up went,
he could come back with a more realistic proposal; that it
would take 30 days to determine if the Respondent’s projec-
tions regarding these two new accounts were accurate; that he
proposed May 3, 2001, to reconvene; and that Balash agreed to
wait until May 3, 2001, for an economic proposal but he
wanted Burgos to sell it to the union committee. Further Burgos
testified that when the full committee convened he explained
the situation to them and told them that if they gave him until
May 3, 2001, he would come back with an economic proposal
that he thought would be acceptable to them; that he was not
asked to make an economic proposal to them that day; and that
one of the union committee members, identified only as “Jean,”
objected to adjourning and waiting until May 3, 2001, for the
Company’s economic proposal. On cross-examination, Burgos
testified that he told the bargaining committee that if they
wanted an economic proposal he was willing to give them a
proposal at that time but they would not be very happy with it
in that it would be based on the economic situation at that time;
and that he told the employees that the Miami operation had
been sold four times.
Adelstein testified that he and Burgos told Balash before the
negotiating session that (a) business was very poor but the Re-
spondent was about to land two new accounts which could
improve the Respondent’s financial situation to the point where
the Respondent could make an attractive offer that employees
may accept, and (b) if the Respondent were forced to make an
offer at that time, the offer would be very slim and unlikely to
be ratified; that Balash agreed that it would be better to wait
until the Air France and Northwest accounts were up and run-
ning when the Respondent would be in a position to give per-
haps a better offer depending on the performance of the two
new accounts; that they explained to Balash that if the Respon-
dent had to make an economic proposal at that time based on its
current numbers, it would be a decrease in wages or benefits, or
maybe a freeze in wages; that Respondent’s Exhibit 35 is a
copy of the notes he took at the negotiation session held later
that day; and that during the negotiating session Burgos ex-
plained the financial situation and, in answer to a question re-
garding how long the Respondent was going to be losing
money, Burgos indicated that if it kept losing money it would
have to sell the business in Miami, which had already been sold
four times. On cross-examination, Adelstein testified that the
Respondent did not have a prepared wage proposal to present at
that time but it had an idea of what could be offered, namely a
wage cut or freeze; that they discussed the possibility of a wage
cut or freeze with Balash during the private meeting with him
before the negotiating session but, pursuant to an agreement
with Balash, they did not tell the committee of this possibility
during the subsequent negotiating session;16 and that the Re-
spondent had not considered a retroactive wage proposal prior
to one of the bargaining committee members asking about a
retroactive raise. On redirect, Adelstein testified that during the
meeting with Balash preceding the March negotiation session,
he did not at any time tell Balash the Respondent would not
make a wage proposal.

16 At one point in his testimony Adelstein testified that this occurred
on January 30, but he later corrected this testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD124
On rebuttal Balash testified that during the March 28, 2001
meeting he alone had with Adelstein and Burgos before the
bargaining session he was not told that the Company’s wage
proposal, if given at that time, would be a wage freeze, a wage
cut, or a wage reduction; that when he asked Adelstein and
Burgos if they were prepared to discuss wages that day, Adel-
stein told him that what they had the Union would not accept
and would not like it; and that the Respondent did not provide
any specifics with respect to what the wage proposal would
constitute—no documentation or written proposal was handed
to him.
According to the testimony of Balash, on the night of March
28, 2001, the Respondent met with Air France. On cross-
examination, Balash testified that the Union received a call that
evening from the bargaining committee indicating that at the
meeting with Air France Burgos told the people from Air
France that the Union was out, the Union was not here any-
more; that while bargaining unit members were not at the meet-
ing, they were in the area and could hear what was going on;
that Burgos and the Air France people had a champagne toast
and some cake in the cafeteria; that he telephoned Burgos at the
plant but Burgos denied what the bargaining committee had
told the Union claiming that the Company was looking to bar-
gain and the Company was not trying to pull any fast moves;
that the Union had heard that the Respondent had shown the
new hires an antiunion video; and that he did not believe that
on March 28, 2001, the bargaining committee members told
him anything about a decertification petition circulating among
the employees, and he thought that occurred subsequently.
Burgos testified that some of the representatives of Air
France and the Respondent did celebrate the start up of service
and he did make a champagne toast but he never mentioned the
Union, and during his meeting with Air France he did not make
any comments about the status of negotiations with the Union;
and that a couple of days later Balash telephoned him and told
him that he was hearing rumors that the employees were very
unhappy with what had transpired on March 28, 2001.
On March 29, 2001, the Union filed a charge with the Board
alleging that the Respondent violated Section 8(a)(5) of the Act
by failing to bargain in good faith. This charge was withdrawn
on April 12, 2001. Balash testified that when the charge was
filed the Union believed that the Respondent was trying to have
the Union decertified, the Respondent was showing an anti-
union video to employees during orientation, management did
not provide the Union with a wage offer, and the Union wanted
to block the attempted decertification. Balash further testified
that because the employees on the bargaining committee said
that nothing was going on at the time, and since the Respondent
was providing information and Balash did not want to hinder
the parties from reaching a settlement on May 3, 2001, the Un-
ion withdrew the charge. General Counsel’s Exhibits 25(a)
through (d). On cross-examination, Balash testified that the
charge was based on the Company’s refusal to make a wage
proposal; that in his May 4, 2001 affidavit to the Board, he
indicated that the March 29, 2001 charge was filed because the
Union was concerned about the employer circulating a decerti-
fication petition since more than a year had passed since certifi-
cation; that he did not have any evidence of this when this
charge was filed; that the March 29, 2001 charge does not refer
to the Company circulating a decertification petition; that the
fact that the Union had not received a wage proposal up to that
point and the certification date was up on March 29, 2001, the
charge was filed in order to give the Union time to figure out
what was going on; that it was his understanding that having a
charge already on file would block the processing of a decerti-
fication petition; that the charge was withdrawn when he found
out that nothing was being circulated at the time; and that to the
best of his recollection, the Respondent did not condition the
holding of a meeting on May 3, 2001, upon the withdrawing of
the March 29, 2001 charge.
At the end of March 2001, according to the testimony of No-
guera, Vidal approached him and about four other employees
when they were outside in the yard getting in trucks to go load
planes, and Vidal told them that the Union had been decertified.
Noguera testified that Vidal asked the employees if they had
been notified about it and they told him that they did not know
anything about it: and that this occurred when the employees
were leaving the Respondent’s facility to load a plane. On redi-
rect, Noguera testified that when Vidal made the statement
about the Union being decertified, he was preparing a load for
Jamaica Airline and Falcon Airline.
One of the attorneys for the Respondent elicited the follow-
ing testimony from Vidal:
Q. How are you familiar with Flying Foods?
A. I was employed at Flying Foods from February
16th through the end of September 2001 as general man-
ager.
. . . .
Q. Now when you began working at Flying Foods in
the first month of our employment, during the period of
February and March, did you have any meetings with the
employees in which you discussed the union?
A. No.
Q. Did you ever discuss the union with any employee
individually in the first month of your employment?
A. No.
Q. Did you ever advise any employees during that time
period that the union had been decertified?
A. No, ma’am. [Tr. 892–894.]
Subsequently, Vidal testified that he knew Noguera and he
never told him, or any other employee in March 2001, that the
Union had been decertified; and that prior to the meetings he
and Grana held together with employees in the office or in the
conference room to tell them that the Company no longer rec-
ognized the Union, he never informed any employees, either in
a meeting or individually that the Union had been decertified.
Armero testified that at the end of March 2001 committee
members told him that a decertification petition was being cir-
culated among new hires by Mazier. Armero testified that the
Union called a committee meeting on April 3, 2001, and began
to circulate its own petition. On cross-examination, Armero
testified that the committee members always reported to him
that there was a decertification petition since the end of March
2001, and he did not change the report of this fact to Balash;
and that he did not instruct the committee that they should wait
FLYING FOODS 125
before they started collecting signatures on the petition. On
redirect, Armero testified that after the October 18 or 19, 2000
negotiation session he asked the bargaining committee to con-
tinue picking up union authorization cards to make sure that the
Union still had support, and this continued until the end of
March 2001. Based on the cards and the February 16, 2001 list
of employees the Respondent sent the Union (GC Exh. 34),
Armero testified that he concluded that at the end of March
2001 the Union was supported by a majority of the Respon-
dent’s employees who were in the bargaining unit.
Solano testified that he attended a meeting with the Com-
pany as a member of the Union’s negotiating committee in
March 2001 where salary was discussed. After the meeting,
while at work, Wilsher asked him why, after helping the Com-
pany, he was now against the Company and he was helping the
Union. Solano testified that Wilsher said in the presence of
other dishwashers that if the Company fired him, he would see
if the Union would help him find another job; and that Wilshire
was very upset and she said in a strong tone of voice that he
was an ungrateful person. Wilsher testified that Grana told her
that Solano attended a bargaining session and she could not
believe this because during the organizing campaign Solano
told her that he supported the Company and was totally against
union representation; that she had a conversation with Solano in
the hallway between the dish room and the receiving area for
the store room; that there were people working in the dish
room; that she told Solano during this conversation that she had
learned that he was at the bargaining session and she asked him
what happened; that Solano said that there were some things
that the Company had done and that was why he attended the
bargaining session for the Union; that when she asked him what
happened she was asking him why he had a change of heart;
that she did not ask him anything else; that she did not ask him
what support he thought he could gain from the Union; that she
did not raise her voice to Solano but it is noisy in that area be-
cause of the dishwashing machine; and that she did not have
any other conversations with Solano in 2001 regarding the Un-
ion.
In March and April 2001, a number of employees were hired
by the Respondent to work on the Air France and Northwest
accounts. Two personnel action forms were used to document
these hires. One, General Counsel’s Exhibit 43(a), has a cate-
gory heading “UNION” with boxes in front of “UNION” and
“NONUNION.” None of these boxes were checked on the
forms documenting the involved hires.17 The other form (GC
Exh. 44(a), does not have these boxes.
Burgos testified that before beginning service to Air France
and Northwest the annual revenues for the Respondent’s Miami
facility were around $6 million; that the Respondent projected
that the annual revenues from Air France would be $2.9 mil-
lion, and the annual revenues from Northwest Airlines would
be about $1.9 million; that he approved the hiring of about (a)

17 See GC Exh. 45(a). Many of the personnel action forms received
as GC Exhs. 45 (a) through (nnnnnnn) cover new hires in March and
April 2001. Some, however, cover hiring outside this period and some
cover actions other than hiring which occurred either in or outside these
2 months.
40 employees so that the Respondent could service the Air
France account, and (b) 30 employees for the Northwest Air-
lines account; that one of the Respondent’s competitors, Sky
Chef, previously serviced the Northwest Airlines account; and
that Gate Gourmet previously serviced the Air France account.
According to his testimony, about the beginning of April
2001 Treto was again shown the above-described video regard-
ing a union. He testified that this time there were more employ-
ees present; and that Sanchez and Grana were present, and
Mazier told the employees that about 4 or 5 years earlier a un-
ion had unsuccessfully attempted to organize the Company, the
employees lived without the Union and they did not need it
then. On cross-examination, Treto testified that there were
about 12 employees present at this meeting; that Sanchez and
Grana were present at this meeting and that is all; that both
Mazier and Sanchez told the employees that a union had unsuc-
cessfully tried to organize the employees about 5 years earlier,
the employees lived without the Union, and the employees did
not need a union; that on the video the owner of the Company,
Sue Gin, made statements against the Union; and that the video
with Sue Gin was the only video that he saw on the union.
Sanchez, according to his testimony, conducted two training
sessions for the new drivers hired for the Northwest Airline
account in April 2001.18 He testified that he was directed to
conduct the training by the transportation and operations man-
agers; that Grana gave him a video about a union and told him
to show it during his training session; that he showed the video
at one of the training sessions; that when he showed the union
video to the employees there was no other manager or supervi-
sor present; that he showed about eight videos during the train-
ing sessions and they included a “Welcome to the Company”
video and videos dealing with hygiene, airport security, how to
approach an airplane, and how to do the job in the field; that the
union video was the last video he showed during the training
session; that he could not recall if he made any statements
about the union video; that some of the drivers asked why the
union video was not shown when they were first hired; that
employee Hector Fernandez (Rodriguez) said that if he had
seen the video before, he would not have signed a union au-
thorization card; that Fernandez asked him what to do and he
told Fernandez to speak to another employee; that he told the
employees that he was the president of a local when he worked
in New York City; that the video was about signing a union
authorization card but he could not recall what was said on the
video; that he never told drivers during these sessions or any of
Respondent’s Miami employees in 2001 that the Company
would lose business opportunities due to support for the Union;
and that he did not tell the employees that the Company would
withhold wage increases due to employee support for the Union
in either of the training sessions he conducted in 2001 or to any
employee in 2001. On cross-examination, Sanchez testified that
he showed the union video only on one occasion, and Grana
was neither present when he showed it nor was she present at
any time in the training session on the day he showed the union
video; that he believed that he told the employees that in New

18 After September 11, 2001, Sanchez became the maintenance man-
ager.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD126
York he went from shop steward to president of Local 2750 of
the Machinists (IAM); and that he did not believe that it was a
possibility that the Company would lose business opportunities
if the employees supported the Union. On re-cross, Sanchez
testified that one of the training sessions for the Northwest and
Air France startups was held on April 11, 2001, and he believed
that the other training session for these startups was held about
5 to 7 days before April 11, 2001.
Grana testified that she participated in two nontransportation
department orientation sessions conducted for new employees
in March/April 2001; that there were one or two other driver
and coordinator sessions, which were conducted by Sanchez,
which she did not participate in; that one of her sessions was in
Spanish and the other one was in English; and that she showed
five videos to the employees, namely the “Welcome to Flying
Foods” video, a video on knife safety, one on regulations refer-
ring to the handling of food, one on diseases which can be
transmitted to food, and “Little Card, Big Trouble.” Transcripts
of “Welcome to Flying Foods” and “Little Card, Big Trouble”
were received in evidence as Respondent’s Exhibits 36 and 37,
respectively, by stipulation. The latter was the English version.
The distributor of the Spanish version, which was the version
shown to the employees, did not comply with the subpoena
duces tecum of counsel for the General Counsel with respect to
the Spanish version. Grana further testified that before she
showed the videos to the new employees she told them only
that she was going to put certain videos on for them to “listen
to” (Tr. 1502); that she translated the “Welcome to Flying
Foods” video and the videos on knife safety, diseases, and
proper handling of food, which are in English only, for the
Spanish session in which she participated; that she did not
communicate to the employees in Spanish anything more than
what was being said on the video in English; that she reviewed
the “Little Card, Big Trouble” video a couple of days before
she showed it to the new employees; that she received the “Lit-
tle Card, Big Trouble” video, which is in Spanish, from Heston
after she requested something that she could show the employ-
ees about what a union was; that before showing the new em-
ployees “Little Card, Big Trouble” she told them that “[s]ince
. . . [the Respondent was] negotiating with the union, I just
thought that I [would] introduce this video to them, so that they
have a knowledge of, of their choices” (Tr. 1508); and that she
did not make any comments while “Little Card, Big Trouble”
was being shown in either of the orientation sessions she par-
ticipated in, nor did she tell the new employees that (a) they
would receive a wage increase if they got rid of the Union; (b)
they could lose their jobs or be fired if they supported the Un-
ion; or (c) the Company would lose business opportunities if
they supported the union. On cross-examination, Grana testified
that she believed that she conducted the first orientation session
for new hires on March 18, 2001, and one or two others in
March; that she did not think that she conducted group orienta-
tion sessions in February or April 2001; that she translated the
video “Little Card, Big Trouble,” which was in Spanish, for the
employee orientation meeting held in English; that Heston only
sent her a Spanish version of “Little Card, Big Trouble”; that
while she believed that the new employees should see the video
about Unions so they would have knowledge of their choices,
she told the employees that the Respondent was in contract
negotiations with the Union and that is why she wanted to show
them the video about Unions; that the choice that she wanted
them to know about was not whether or not the employees
wanted to have the Union but rather whether they wanted to
sign the card or not; that the card which she was referring to
was “[t]he card to participate in the union or not to participate.
. . . I guess they should know that they have the . . . choice to
sign the card that they agree with the Union or not to agree with
having a union . . . .” (Tr. 1641); that the card that she was re-
ferring to is the card that is described on the video, namely a
card, the purpose of which is whether the employees want to
join a union or not join a union; that she gave the “Little Card,
Big Trouble” video to Sanchez to show to new employees a
couple of days after her orientation sessions; and that she did
not appear, even momentarily, at the orientation sessions that
Sanchez conducted.
With respect to the videotape shown to new employees in
2001 during orientation at Respondent’s involved Miami facil-
ity, Heston testified that the tape dealt with employees’ rights
as they pertain to a union; that she purchased the tape and she
viewed the tape in its entirety; that the tape was purchased from
a company named Projections; that Projections requested that
the tape be returned to it and she complied with the request;
that no reason was given for the request, which was both verbal
and in writing; that Projections gave the Respondent another
tape to replace the tape which was returned; that she never
viewed the replacement tape; that she believed that the tape was
shown at the other facilities of the Respondent; that the owner
of the Respondent, Sue Gin, appears in another videotape
which is shown during orientation but she did not believe that it
was shown to employees in 2001 during their orientation; that
she did not think that Gin addressed unionization issues in her
video; and that she believed that the tape was sent back to Pro-
jections in 2001.
Burgos testified that he had no knowledge about when the
video was requested back from the Respondent by Projections;
that the Respondent’s senior leadership group, which is an ex-
ecutive committee which meets weekly and monthly, decided
to show the original video from Projections because the Re-
spondent hired employees from Gate Gourmet and Sky Chef,
both of which operate under the Railway Act under which the
employees have no choice regarding whether they would join
or not join the union; that the Respondent wanted to make sure
that the former employees of Gate Gourmet and Sky Chef un-
derstood that they had a choice when they came to work for the
Respondent, which is not subject to the Railway Act, because
Florida was a right to work state; and that some of the employ-
ees who viewed the video were not former employees of Gate
Gourmet or Sky Chef.
In mid-April 2001, Solano was washing dishes when Mazier
told him that “they were collecting signatures to organize a
group of people to negotiate with the Company because the
Union was not capable of obtaining all what the employees
needed.” (Tr. 380.) Solano told Mazier that he could not sign
the document because he had been at a meeting where the em-
ployees received a commitment for May 3, 2001, from Burgos
that the Company would reach some sort of an agreement on
FLYING FOODS 127
that date. Mazier told Solano that if they collected the signa-
tures they needed, there would not be a May 3 meeting.
Also in mid-April 2001, according to the testimony of Treto,
Mazier approached him and other employees on the loading
dock, in his working area, and asked him to sign a document
indicating that the employees did not want the Union to repre-
sent them. Treto refused to sign the document. He testified that
when he saw Mazier approaching employees in the various
departments with the papers he held, he did not see any super-
visors present; that from the office of Nelson Nunez, who is
operations manager at the Respondent’s Miami facility, one
could see the preparation department and a section of the
kitchen where they prepare food; and that Mazier was in the
preparation and kitchen department. Subsequently Treto testi-
fied that he saw Nunez in his office on one occasion when
Mazier was in the preparation and kitchen departments with
papers; that this was the day he saw Mazier taking papers to
other departments after showing the papers to him; and that
there would be no need for employees in the preparation or in
the kitchen departments to be filling out applications for identi-
fication to go to the airport.
In April 2001, according to the testimony of Luis Hurtado,
who is a coordinator at the Respondent’s Miami facility,
Mazier spoke with employees in the salad room telling the new
employees that “if they would sign for no union, he was going
to give them a better salary increase, better salaries, better
benefits, opportunities, . . . [than] employees that were there
working longer for the company.” (Tr. 469.) Hurtado also testi-
fied that Mazier was carrying a file and some of the employees
signed; that when the employees signed they were working in
the production area; and that the production area is the same as
the food preparation area. On cross-examination, Hurtado testi-
fied that the papers Mazier had the employees sign were com-
pletely blank. In his July 12, 2001 affidavit to the Board (GC
Exh. 36, p. 3, LL. 11–13), Hurtado indicated, “He [Mazier] was
telling them that if they signed the paper for no Union they
would have better salary, benefits and opportunities than the
employees who had been working for the Company longer.”
Nunez had his office on the main floor right in front of the
production area in April 2001. He testified that he had a small
window in his door through which he could see some of the
production area while he is seated at his desk; and that he had a
window in the wall of his office but he could only see the pro-
duction area through it if he rose about 4 inches from his chair.
Nunez spends a couple of hours in his office each workday and
the remainder of the time he is in the kitchen making sure that
everything is getting ready.
Respondent’s employee Demaris Fernandez, who was called
by the Respondent to rebut certain of the testimony of em-
ployee Hurtado, testified on cross-examination by counsel for
the General Counsel—over the objection of Respondent’s at-
torney, Zdravecky,—that no one approached her about the Un-
ion in April 2001; that no one approached her with a piece of
paper to sign regarding the Union; that she never signed a piece
of paper; that she did not recall anyone approaching her in 2001
about the Union and asking her to sign anything; and that she
did not remember signing a piece of paper with lines on it.
What purports to be her signature appears on what was intro-
duced at the trial herein as a petition for decertification (R. Exh.
38(a), L. 16).
Vidal testified that he never saw the petition for decertifica-
tion, he did not know who signed it, and he did not know who
circulated it. On cross-examination, Vidal testified that Grana
did not show him the petition; that she did not tell him how
many employees were on the petition; that he could not recall if
Grana told him who gave her the petition; and that he knew that
Grana told him who gave her the petition for decertification but
when he testified at the trial herein he just could not remember
who gave it to Grana.
Burgos testified that on April 17, 2001, he received a tele-
phone call from Grana who told him that she had received a
petition from the employees; and that he told her to contact
Zdravecky and follow her instructions. On cross-examination,
Burgos testified that when Grana telephoned him on April 17,
2001, “[s]he said an employee came in, gave her a petition,”
(Tr. 1290); that he told Grana to telephone Zdravecky and to
follow her strict instructions. Burgos gave the following testi-
mony:
JUDGE WEST: With respect to Ms. Grana’s call on the
17th of April, Year 2001, regarding the petition, is that the
first that you were aware of such a petition?
THE WITNESS [Burgos]: Yes. I was out on the West
Coast.
. . . .
RE-CROSS-EXAMINATION
Q. BY MS. PLASS: Did Ms. Grana call you on April 17
when you were on the West Coast, out on the West Coast?
A. Yes.
Grana testified that on around April 18, 2001, she came into
her office in the morning (she estimated at 8 or 8:30 a.m.) and
she found an envelope under her door which, as here pertinent,
contained pages of signatures with printing at the top of some
of the pages (R. Exhs. 38 (a) through (1); that before she found
this document under her door she had never seen the document
before; that she “immediately” (Tr. 1516) called Burgos and
told him what the document said on top, namely “[w]e employ-
ees of Flying Food Group no longer wish to be represented by
Local 355 H.E.R.E., AFL–CIO, Union,” and that the document
had signatures and dates and the departments; that she did not
say anything else to Burgos who told her to talk to Zdravecky,
one of the Respondent’s lawyers; and that she telephoned
Zdravecky and told her what she had told Burgos and nothing
more. Grana then gave the following testimony on direct:
Q. BY MR. SECARAS: What did you do after speaking
with Ms. Zdravecky?
A. Okay. I verified the signatures on the document.
Q. Tell us what you did to verify the signatures?
A. I went through the employees’ files and looked up
documents that showed their signatures.
Q. Did you look for any one document in particular?
A. I looked at the W-4 form or which other document
I found, if they didn’t have a W-4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD128
Q. What did you do after comparing the documents in
the employee personnel files with signatures to those sig-
natures on the document you received?
. . . .
Q. BY MR. SECARAS: What, if anything, did you do?
A. I looked through each one and I wrote on the side,
duplicates, because there were some duplicates. And I
wrote the word term next to employees that were termi-
nated. [Tr. 1518.]
Grana wrote “Admin” next to line 10 on Respondent’s Exhibit
38(d) which purports to be the signature of Liz Bell Boada,
who is a payroll clerk and not in the bargaining unit. She testi-
fied that the entries on lines one through eight on Respondent’s
Exhibit 38(i) were already covered with what appears to be
liquid paper when she received the document19; and that she
changed line numbers 42 through 50 on Respondent’s Exhibit
38(b) because they were not in sequence. Grana then gave the
following testimony on direct:
Q. What, if anything, did you do upon completing
your review of the document you received against the em-
ployee personnel files?
A. I’m sorry, what was that again?
Q. What, if anything, did you do after you completed
your review of the document you received versus the
documents from the employee personnel files that your
looked at?
A. The document was put in a safe place.
Q. The document that you’re looking at?
A. Yes.
Q. Did you do anything else with respect to the docu-
ment?
A. No.
Q. Did you communicate the results of the analysis
you did to anyone?
A. Yes, I did.
Q. To whom did you communicate those results?
. . . .
A. Zdravecky.
Q. Okay. When did you make that communication
with Ms. Zdravecky?
A. A couple of days after I had received the docu-
ment.
Q. Did you make that communication on the same day
that you did your analysis?
A. Yes. [Tr. 1522 and 1523.]
Further, Grana testified that Respondent’s Exhibit 39 is the fax
cover sheet that she sent to Zdravecky with those pages of Re-
spondent’s Exhibit 38 which had signatures on them, namely
Respondent’s Exhibits 38(a), (b), (c), (d), (e), and (f); that the
cover sheet is dated “4/18/01” and this is the date on which she
transmitted the fax to Zdravecky; that April 18, 2001, was ei-
ther the same day or the day after she received the employee
petition but she could not remember exactly; and that in the

19 There are no other handwritten entries on this page or on R. Exhs.
38(g), (h), (j), (k), and (l).
comments section of the fax cover sheet she wrote the follow-
ing:
177 on payroll Register
-17 of/admin & Mgmt.
-14 terms showing active
146
1-Admin
3-Duplicates
2-terms
6 that are on the list that do not count
Grana testified that she used the payroll register which had a
total of 177 employees; that she deducted from the 177 em-
ployees 17 who were administrative and management employ-
ees and 14 employees who were terminated; that the payroll
registers cover 2 week periods and the one she used at that time
covered the most recent 2-week period prior to April 18, 2001;
that the petition contained the signatures of one administrative
person who was not in the bargaining unit, the signatures of
three people who signed twice, and the signatures of two people
who were terminated and should not have been in the petition;
that at the time she thought her calculation was accurate; that
when she received the first payroll register after April 18, 2001,
she learned that her calculation was not accurate; that she ad-
vised Zdravecky that her original calculation was not accurate;
that she neither performed a subsequent calculation for
Zdravecky nor did she provide Zdravecky with a copy of the
payroll register she received after April 18, 2001; and that she
believed that Wilsher provided a copy of the later payroll regis-
ter to Zdravecky.20
On cross-examination, Grana testified that when she found
the petition under her door her door was closed and locked; that
employees have access to the area just outside her office to use
a copier and a fax machine; that managers, supervisors,21 and
certain employees have mailboxes in the area just outside her
office; that Dario Mazier has a mailbox in the area just outside
her office because a lot of paperwork is put in his box for the
drivers and from the drivers; that the envelope was inside her
office; that she arrived at work that day about 8 or 8:30 a.m.,
which is her usual time; that she guessed the envelope was left
by an employee but she did not see anybody put it in her of-
fice;22 that she did not witness anyone signing or placing their
marks or writing anything on Respondent’s Exhibits 38(a)
through (f); that after she spoke with Burgos and Zdravecky,
she personally went to the employment files of the employees
on the list and she personally pulled the files; that she verified

20 The payroll register, with a “Report Date” of “05/04/01” was re-
ceived as R. Exh. 16. Grana testified that when she sent the fax to
Zdravecky on April 18, 2001, she was not relying on R. Exh. 16, which
indicates that it covers pay period “09.” R. Exh. 12 indicates that pay
period 9 is a 2-week period in 2001 beginning on “4/13” and ending on
“4/26.”
21 Ivan Vasquez, Bernie Toledo, Alvaro Caicedo, and Jose Laureano.
22 Grana then gave the following testimony:
JUDGE WEST: For the record, you arrived that morning at 8:00
of 8:30. How long was it before you called Mr. Burgos?
THE WITNESS [Grana]: About an hour and a half or so be-
cause they’re in Chicago. [Tr. 1650.]
FLYING FOODS 129
that the people on the list were all employed by the Respon-
dent; that she has no personal knowledge of whether the indi-
viduals whose markings appear on Respondent’s Exhibits 38(a)
through (f) read the language that appears on the top of Re-
spondent’s Exhibit 38(a) [and also it appears at the top of Re-
spondent’s Exhibits 38(d), (e), and (f) but not at the top of Re-
spondent’s Exhibits 38(b) and (c)] before they placed their
name or other markings on Respondent’s Exhibits 38(a)
through (f); that she did not witness what the employees were
told about what was printed on the top of certain of the pages;
that while the pages were attached when she received them she
did not know if they were attached when the signatures or
markings were placed on the pages; that she began to review
the files at about 10 or 11 a.m. the same day she received the
petition; that this was after her telephone conversation with
Zdravecky, who asked her to do it immediately; that the pur-
pose of reviewing the employee files was to verify the signa-
tures and the employment status of the people who were on the
petition; that while she included Jorge Gonzales (R. Exh. 38(b)
at L. 40), in her count of valid signatures, according to a Re-
spondent’s personnel action form (PAF) (GC Exh. 57), this
individual resigned effective April 9, 2001;23 that she signed
General Counsel’s Exhibit 57, her signature is not dated, she
did not recall when she signed it, the manager, Rafael Rosario,
dated his signature “4/09/00” (sic), she filled out the PAF, and
the PAF would have been filled out before Rosario signed and
dated it; that Annais Salicio, whose name appears on line 2 of
Respondent’s Exhibit 38(e), and Maria Aguilar, whose name
appears on line 10 of Respondent’s Exhibit 38(f), were counted
in the number of employees who signed the petition because
although, as memorialized in General Counsel’s Exhibits 58
and 59, respectively, both were discharged effective on April
13, 2001,24 she, Grana, did not fill out the discharge forms until
after she received the petition; that while she counted Jerry
Garnley, whose name appears on renumbered line 46 of Re-

23 The “REMARKS” portion of the form reads as follows:
Came in at 10:30 AM was sent in to get some equipment never came
back. When called home wife said that he is out. NO CALL, NO
SHOW
This raises an interesting question in that if Gonzalez (spelled with
an “s” instead of a “z” on the disaffection petition) “never came back”
after April 9, 2001, how could he have signed the petition as an em-
ployee on “04–12–01” as is indicated on L. 40 of R. Exh. 38(b). A
similar question could be asked about another signature on L. 39 of R.
Exh. 38(b). If Eduardo Perez (also spelled with an “s” instead of a “z”
on the disaffection petition) was, as is indicated on GC Exh. 55, termi-
nated (“Voluntary–Dissstisf”) on April 9, 2001, how could he also have
signed the petition on April 12, 2001? As will be seen infra, there are
questions about how others could have signed the petition on April 12,
2001, when, according to Grana, it appears that they were not in Miami
at that time.
24 Grana testified that she believed that these two employees told the
Respondent that they had something of an emergency and had to go to
Tampa or Orlando but that they would come back; that after a couple of
days they did not come back; that she issued them the termination PAF
showing an effective date of April 13, 2001, because it was the day
they left; and that Aguilar’s PAF indicates “No call, no show.” At one
point when asked if she pulled Salicio’s personnel file the day she
received the petition, Grana testified, “I would imagine so.” (Tr. 1662.)
spondent’s Exhibit 38(b), his name is not on General Counsel’s
Exhibit 55, which is—as here pertinent—a list of active em-
ployees at the Respondent’s Miami facility in April 2001;25 that
there would be a PAF for the hiring of an employee and she had
specific recall of a PAF for Garnley;26 that she counted the
entry for Angel Hernandez, whose name appears on line 5 of
Respondent’s Exhibit 38(f), and his name does not appear on
the list of active employees, described above, because he
worked in the administrative department for a while and then
transferred to the storeroom; that she did not recall when Her-
nandez transferred; that Hernandez was either a supply clerk or
a storeroom clerk and there would be a PAF indicating the
transfer as well as his employment;27 that she took into consid-
eration the fact that the involved unit description excludes
“storeroom clerks”; that the department listed after Hernandez’
name on Respondent’s Exhibit 38(f) is storeroom; that she
counted the entry on line 22 on Respondent’s Exhibit 38(a) for
Ivan Vasquez since she believed his promotion to shift supervi-
sor occurred after he signed the petition because he wrote coor-
dinator next to his name and he was a coordinator before he
became a supervisor; that while there would be a PAF for
Vasquez’ promotion she did not check it; that she counted the
entries for Alvaro Caicedo, who is a shift supervisor, Bernie
Toledo, who is a supervisor, Vincent Massari, who was a pur-
chasing supervisor in April 2001 and who was a member of the
bargaining unit as storeroom hourly supervisor; that Toledo,
Caicedo, and Vasquez are authorized to make entries in the sick
and adjustment log; that Juan Carlos Abud, whose name ap-
pears on renumbered line 43 of Respondent’s Exhibit 38(b),
and Maximo Rodriguez, whose name apparently appears on
line 19 of Respondent’s Exhibit 38(f), are supervisors; that
Domingo Robaina, whose name appears on line 24 of Respon-
dent’s Exhibit 38(a), was fired effective April 20, 2001 (GC
Exh. 60); that Samuel Miranda, whose name appears on line 21
on Respondent’s Exhibit 38(a) was terminated effective April
20, 2001 (GC Exh. 61); that she used the W-4 received as Gen-
eral Counsel’s Exhibit 62(a) to verify the employment or the
signature of Karina Prida, whose name appears on line 8 of
Respondent’s Exhibit 38(d); that she did not look at the W-4
received as General Counsel’s Exhibit 62(a) to verify the signa-
ture on the petition since that document was dated “5-25-01”;28
that she did not know if General Counsel’s Exhibit 62(b) was
the exact document that she used to verify the signature of

25 The Respondent did not refute the assertion of counsel for the
General Counsel that while she subpoenaed “[t]he disaffection petition
and any other documentation relied upon as a basis for Respondent’s
withdrawal of recognition of the Union” (par. 15 of p. 2 of the attach-
ment to GC Exh. 41), the Respondent did not give counsel for the Gen-
eral Counsel any documents for Garnley in response to this paragraph
of the subpoena.
26 Such a PAF was never produced by the Respondent.
27 The Respondent did not refute the assertion of the General Coun-
sel that she did not receive a PAF for Hernandez pursuant to her above-
described subpoena.
28 The Respondent did not refute the assertion of counsel for the
General Counsel that this was the document she received pursuant to
her subpoena requesting the documents the Respondent relied on in
connection with the petition.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD130
Patricia Caquimbo, line 4 of Respondent’s Exhibit 38(d);29 that
she verified the information on the petition pertaining to Gui-
llermo Dausa, whose name appears on line 8 of Respondent’s
Exhibit 38(e), by viewing a document in his personnel file;30
that after she read the subpoena, she had a payroll clerk pull the
subpoenaed documents from the personnel files that had em-
ployee signatures but she did not know that it had to be the
same documents she used to verify the signatures;31 that she
could have used General Counsel’s Exhibit 62(d) to confirm the
information on the petition regarding Celemine Luis, lines 10
and 11 on Respondent’s Exhibit 38(e), but she did not remem-
ber exactly;32 that General Counsel’s Exhibit 62(e) could be the
document she relied on for verifying the information that was
on the petition for Norma Naranjo on Respondent’s Exhibit
38(e), line 5;33 that she was not sure if General Counsel’s Ex-
hibit 62(f) is the document that she used for the purpose of
verifying the information on the petition, Respondent’s Exhibit
38(f), line 1, regarding Hector Fernandez in April 2001;34 that
she was pretty sure that she did not rely on General Counsel’s
Exhibit 62(g) in verifying the information for Lumise Jean
Gilles on the April 2001 petition, Respondent’s Exhibit 38(f),
line 12, because it is dated June 4, 2001;35 that she did not rely
on General Counsel’s Exhibit 62(h) to verify the information
for Emile Julmiste on the April 2001 petition, Respondent’s
Exhibit 38(b) renumbered line 48, because the document, a W-
4, is a 2002 form;36 that she did not specifically recall verifying

29 The W-4 is dated “4–26–01.”
30 The Respondent did not refute counsel for the General Counsel’s
assertion that the document she received pursuant to par. 15 of her
above-described subpoena is dated “5–2–01,” GC Exh. 62(c).
31 As noted above, the language in the subpoena reads “[t]he disaf-
fection petition and any documentation relied upon as a basis for Re-
spondent’s withdrawal of recognition of the Union.” Obviously Grana
could not have relied upon documents which were not yet in existence
when she did her analysis.
32 The document is a responsibility counseling form purportedly
signed by Luis in February 2002. The Respondent did not refute the
statement of counsel for the General Counsel that this was a document
that was produced by the Respondent pursuant to the above-described
subpoena with the representation that the Respondent did rely on it for
the purposes of verifying the information of Luis on the petition.
33 The document is a medical benefit plan enrollment/change form
apparently initialed by Naranjo and dated “6/27/01.” The Respondent
did not refute the statement of counsel for the General Counsel that this
document was produced pursuant to the above-described subpoena as
information that was relied upon by the Respondent in connection with
the petition in April 2001.
34 The document is a medical benefit plan enrollment/change form
apparently signed by Fernandez and dated “6/29/01.” The Respondent
did not refute the statement of counsel for the General Counsel that this
document was produced pursuant to the above-described subpoena as
information that was relied upon by the Respondent in verifying the
information of Fernandez on the petition that the Respondent received
in April 2001.
35 The Respondent did not refute the statement of counsel for the
General Counsel that this document was produced pursuant to the
above-described subpoena as information that was relied upon by the
Respondent in verifying the information of Jean Gilles on the petition
that the Respondent received in April 2001.
36 The Respondent did not refute the statement of counsel for the
General Counsel that this document was produced pursuant to the
the signature of Domingo Robaina and she did not recall an
instance where she had to utilize the driver’s license of an em-
ployee; that with respect to Maria Aleman [R. Exh. 38(a), L. 5],
Yreida Perez [R. Exh. 38(d), L. 14], and Raphael Dausa [R.
Exh. 38(e), L. 6], there was no document in those given to
counsel for the General Counsel pursuant to her above-
described subpoena with the representation that these were the
documents that the Respondent relied on to verify the informa-
tion of these employees on the April 2001 petition; that she did
not ask Boada in administration, who asked her to sign the
petition and why she signed it if she was not in the bargaining
unit; that she checked off “Urgent” on the fax cover sheet (R.
Exh. 39), because Zdravecky wanted to know immediately after
Grana had gotten the results and Zdravecky told her this when
she telephoned Zdravecky to tell her that she had received the
petition; and that after she sent the analysis (R. Exh. 39), to
Zdravecky she “had no other conversation with her regarding
the information that . . . [she] sent to . . . [Zdravecky]” (Tr.
1702). On redirect, Grana testified that Salicio and Aguilar
were supposed to come back on April 13, 2001, but she did not
recall whether they were out on April 12 or 13, 2001; that she
decided to terminate these two individuals when the manager
told her that they had not called in a couple of days; that Toledo
was a transportation supervisor in April 2001 and was in the
bargaining unit as transportation hourly supervisor; that in
April 2001 Massari was the storeroom hourly supervisor, which
is a bargaining unit position; and that, in her opinion, the signa-
tures or markings on General Counsel’s Exhibits 62(a) through
(h) are similar to or identical to those for the involved individu-
als on the petition.37 On re-cross, Grana testified that there are
no markings on line 27 of page 1 of the April 2001 petition (R.
Exh. 38(a)), which would lead her to believe that these are the
marks of Tania Martinez judging from what is on the W-4 that
was furnished pursuant to the above-described subpoena (GC
Exh. 67(a)); that the purported signature of Anne Henry on line
19 of the first page of the petition (R. Exh. 38(a)), seems differ-
ent than the signature on the W-4 that was turned over pursuant
to the above-described subpoena (GC Exh. 67(b));38 that the
signature purportedly of Yurima Varela on line 31 of Respon-
dent’s Exhibit 38(b) is the same as the signature on the W-4
supplied pursuant to the subpoena (GC Exh. 67(c)); that the
purported signature of Samuel Miranda on line 21 of Respon-
dent’s Exhibit 38(a) is not the same as the signature on the
document supplied pursuant to the subpoena (GC Exh. 67(d));39
that what purports to be the signature of Norma Calero on line
2 of Respondent’s Exhibit 38(a) looks different than the signa-
ture on the W-4 supplied pursuant to the subpoena (GC Exh.
67(e)), but she was not sure if Calero really signed the W-4;

above-described subpoena as information that was relied upon by the
Respondent in verifying the information of Julmiste on the petition that
the Respondent received in April 2001.
37 As noted above, it does not appear that the documents introduced
by counsel for the General Counsel as GC Exh. 62 were even in exis-
tence on or around April 18, 2001.
38 In two places on the W-4, namely the signature line and the line
where the first name is printed, the first name is spelled Anne and not
Ann as on the petition.
39 As noted above, this individual was discharged on April 20, 2001.
FLYING FOODS 131
that what purports to be the signature of Romona Loyola on
line 8 of Respondent’s Exhibit 38(a) is the same as the signa-
ture on the W-4 supplied pursuant to the subpoena (GC Exh.
67(f)); that none of the markings on the W-4 (GC Exh. 67(g)),
supplied pursuant to the subpoena match the purported signa-
ture of Israel Aguila on line 18 of Respondent’s Exhibit 38(a)
because Aguila did not sign the W-4;40 and that the signature
supplied pursuant to the subpoena (GC Exh. 67(h)), does not
exactly match the markings on line 40 of the petition (R. Exh.
38(b)), for Jorge Gonzalez.41 Subsequently Grana testified that
she had no experience whatsoever in comparing signatures in a
legal matter; that it took her “like around almost a week, I be-
lieve” (Tr. 1770) to compare the signatures and markings on the
petition for decertification against known samples of the signa-
tures of the employees; that she had not completed her review
of the signatures when she faxed her analysis to Zdravecky on
April 18, 2001, “I just completed the numbers for her. The
actual looking up each individual signatures I could not do in
that time frame” (Tr. 1771); that she had not verified the signa-
tures when she faxed the information to Zdravecky on April 18,
200142; that subsequently when she did verify the signatures
there was no documentation whatsoever from her to Zdravecky
on this point; that the formation of some of the letters on line 12
of Respondent’s Exhibit 38(f) is different that the letters on the
W-4 supplied pursuant to the subpoena (GC Exh. 62(g)), and
the spelling of the last name on the petition (Giles) is not the
same as on the W-4 (Gilles); and that it could be assumed that
Aguilar and Salicio, since they were terminated for not return-
ing to work on April 13, 2001, were not working on April 12,
2001, yet both of their signatures on the petition are dated April
12, 2001.
On rebuttal Earnesto del Toro, one of the Respondent’s
truckdrivers, testified that while he was working on April 11,
2001, Toledo asked him to sign a piece of paper which had one
other signature already on it; that there was nothing on the
piece of paper, it was blank except for the one signature; that
there were no other papers attached to the sheet that Toledo
gave him to sign; that Toledo told him “[t]hat the union . . . was
not in the Company any longer” (Tr. 1831); that Toledo, as here
pertinent, said that the paper was to get a $2 raise for the driv-
ers; that his signature appears on the second line, which is
numbered 29, of Respondent’s Exhibit 38(b); that Toledo did
not tell him on April 11, 2001, that the paper he was asked to

40 Actually it appears that he placed his initials on the W-4 on the
line designated employee’s signature and the same or similar initials do
not appear on the petition.
41 The last name on the petition is spelled Gonzales and not Gon-
zalez as it is spelled on the application for employment. Additionally,
as noted above, he resigned effective April 9, 2001, and what purports
to be his signature is dated “04–12–01.”
42 Grana testified that she received all of the pages of the petition at
the same time. Since some of the entries appear to be dated April 17,
2001 [LL. 11 and 12 of R. Exh. 38(e)], and since Grana testified that
she received the petition around 8 or 8:30 a.m., it appears that the earli-
est she could have received the petition would have been April 18,
2001, unless the two individuals who signed and dated the entries on
April 17, 2001, worked and signed the petition before Grana came to
work, and whoever dropped the petition off did so after these two peo-
ple signed and before Grana arrived at work on April 17, 2001.
sign meant that he no longer wished to be represented by the
Union; that he wanted the Union to represent the employees of
the Respondent; and that he received a raise of 50 cents (an
hour) 2 weeks after the next pay. On cross-examination, del
Toro testified that before his above-described conversation with
Toledo, Burgos had come to Miami and told the employees that
the Union had left the Company and there would be a pay raise;
that he was not told the amount of the raise that he would re-
ceive at the meeting where Burgos spoke; that Toledo ap-
proached him with the piece of paper 1 day after the meeting
when he was told there was going to be a raise; that he did not
remember if the meeting at which Burgos spoke was on April
10, 2001; that he did not say it was 1 day after, rather it was
days after when Toledo approached him with this raise of $2;
that the Company did not hold another meeting after he signed
the paper for Toledo; that a second meeting was held where the
six drivers present were told that if they were working for 1
year they would get a $1 raise but since he did not have 1 year
with the Company he received a raise of 50 cents; that Burgos
was not present at the second meeting; that he telephoned Ar-
mero “some days” after April 11, 2001, and told him what
Toledo said about the Union leaving and drivers were going to
get a $2 increase; and that he provided an affidavit to the Board
on the morning that he testified at the trial herein, June 13,
2002.
By letter dated April 18, 2001 (GC Exh. 26), Zdravecky ad-
vised Balash as follows:
We have received objective evidence that a majority of
the Flying Food Miami employees no longer wish to be
represented by the H.E.R.E., Local 355. Therefore, Flying
Foods is hereby withdrawing recognition of your Union as
the collective bargaining representative for their Miami
employees.
Armero testified that he received this letter on April 18 or 19,
2001, and he did not present any of the information that he had
gathered with respect to the Union’s majority status to
Zdravecky or any other company representative but he did tell
Balash about the information he had regarding the Union’s
majority status. On re-cross, Armero testified that Balash’s
inquiry regarding majority support was prior to April 18, 2001,
and Balash did not ask for confirmation after April 18, 2001.
Burgos testified that he was involved in the decision to with-
draw recognition from the Union on April 18, 2001; that he met
with Adelstein, they discussed the procedure, the law, and then
determined that the Respondent would withdraw recognition;
that it was his decision to withdraw recognition from the Un-
ion; and that subsequently he advised Vidal and Grana to hold
meetings with the employees and explain a notice prepared by
the Respondent’s attorney, which was posted in three languages
and which is described below.
Adelstein testified that he had very little involvement with
the decision to withdraw recognition from the Union; that he
was busy with other things and Zdravecky, who was not present
at any bargaining session on behalf of management, was advis-
ing the Company at that point; that he has no personal knowl-
edge of who submitted the petition to the Company; that he
believed that the person who submitted the petition that was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD132
signed by employees to the Company is an employee of the
Respondent; and that his involvement in the decision to with-
draw recognition from the Union consisted of being informed
that a majority of employees had indicated that they no longer
wished to be represented by the Union, he was asked whether
the opinion given by other members of his firm that the Com-
pany withdraw recognition was appropriate, and he responded
that it was.
Vidal testified that Manager Grana showed him the April 18,
2001 letter to the Union withdrawing recognition. On cross-
examination, Vidal testified that Grana showed him the letter
on or about April 18, 2001; and that Grana showed him the
April 18, 2001 letter sometime after she told him about the
petition for decertification.
Grana testified that a couple of days after April 18, 2001, a
copy of Zdravecky’s April 18, 2001 letter was sent to the Re-
spondent’s Miami facility and the general manager, Vidal,
showed it to her; that between the time she forwarded the fax to
Zdravecky on April 18, 2001, and when she saw a copy of
Zdravecky’s April 18, 2001 letter she did not discuss the peti-
tion with any nonmanagement employees at Flying Foods; and
that after she read Zdravecky’s April 18, 2001 letter she did not
individually have any communication with the Respondent’s
Miami employees regarding the Company’s withdrawal of
recognition from the Union. On cross-examination, Grana testi-
fied that she first learned of the decision to withdraw recogni-
tion when Vidal told her about it and showed her Zdravecky’s
April 18, 2001 letter a couple of days after she sent Zdravecky
the April 18, 2001 fax.
By letter mistakenly dated April 17, 2001 (GC Exh. 27), the
Union’s attorney, Kathleen Phillips, advised Zdravecky as fol-
lows:
This firm represents HERE Local 355. Your letter dated this
date has been referred to me for response. It is the Union’s
strong belief that the company has engaged and continues to
engage in unfair labor practices, including today’s withdrawal
of recognition of the union. Enclosed please find the unfair
labor practice charge being filed this date. Notwithstanding the
foregoing, the Union herewith demands bargaining over terms
and conditions and most particularly demands an economic
proposal, which to this date, has not been forthcoming from the
company. Please contact this office with . . . [a] time, date and
place for negotiations and please forward to my attention the
company’s economic proposal.
It was stipulated that this letter was misdated and it was actu-
ally sent on April 18, 2001.
By letter dated April 19, 2001 (GC Exh. 28), Zdravecky ad-
vised Phillips as follows:
We received your letter dated April 17, 2001. On be-
half of Flying Food, we deny that it has engaged in any
unfair labor practices as alleged in your charge. Given our
lawful withdrawal of recognition that we sent to the Union
yesterday, Flying Food has no intention of engaging in any
bargaining with the Union at this time. Moreover, as we
are sure you recognize, under the circumstances, such bar-
gaining would be unlawful.
We trust that this letter adequately responds to the mat-
ters you raised in your April 17 letter.
Balash testified that immediately after receiving the April 19,
2001 letter from the Respondent he instructed Business Agent
Armero to tell the bargaining committee what was going on and
to get a petition to show the Union did have support.
Vidal testified that in the third week of April 2001 a notice
was posted to employees in the cafeteria and hallways indicat-
ing that the Company no longer viewed the Union as the em-
ployees’ representative. (R. Exh. 13.) Two of the 17 sentences
in the body of the notice speak to this. The remainder speaks to
the employees’ right not to speak to union representatives and
union supporters, and not to be harassed. The notice was posted
in English, Spanish, and Creole. Vidal also testified that he and
Grana met with groups of employees to convey this message,
and neither he not Grana met with the employees alone about
this notice; that during these meetings he told the employees
that the Company no longer recognized the Union as their rep-
resentative because a majority of the employees “had petitioned
to do so” (Tr. 904); that neither he nor Grana told the employ-
ees that the Union had been decertified; and that he never, ei-
ther during a meeting with employees or individually, said that
the Union had been decertified. On cross-examination, Vidal
testified that the main reason for these meetings was to let the
employees know that they had the right not to be harassed.
Grana testified that there were two or three employee meet-
ings to communicate verbally to employees regarding the
Company’s withdrawal of recognition from the Union; that she,
Vidal, and Burgos, along with about 20 employees, were pre-
sent at these meetings; and that she posted a notice (R. Exh.
13), in the cafeteria in English, Spanish, and Creole. On cross-
examination, Grana testified that the notices were posted a
couple of days after the decision to withdraw recognition.
On rebuttal, the interpreter used to translate certain of the
testimony and evidence at the trial herein, Vincent Nova, testi-
fied that in the Spanish version of the notice instead of using
the word “acosado,” which means harass, the Respondent used
the word “abusado” which means abuse. The Respondent stipu-
lated to the translation obtained by the General Counsel of the
Creole version, and it was received as General Counsel’s Ex-
hibit 68.
Vidal testified that the employees received a wage increase
after the meetings were held with the employees about the
above-described notice, they “were given in May [2001]. It
wasn’t as a result of . . . the petition being signed or anything. It
was because . . . the company was you know our responsibility
to give them the increases” (Tr. 905); that he, Burgos, and
Grana met with small groups of employees and told them that
they were going to receive a wage increase; that Burgos told the
employees at these meetings that the Respondent was giving
the wage increase because the Company decided on a new
wage scale for existing employees and new hires; that the new
wage scale was shown to the employees with a flip chart (R.
Exhs. 14 and 15); that the raises were not based on whether the
employee supported the Union; that Burgos did not tell em-
ployees at these meetings that they “were receiving the raises or
reward for getting rid of the union” (Tr. 919); that neither he
nor Grana told employees during these meetings that they were
FLYING FOODS 133
receiving the raise as a reward for getting rid of the Union; that
the union issue was never discussed in these meetings; that in
these meetings the employees were told that an arrangement,
called EAR, would be established whereby a group of employ-
ees who represented other employees would meet with man-
agement monthly to discuss open issues and anything manage-
ment brought to the table; that Grana told the employees that
EAR was formed to meet the needs of the employees and to
improve the product the Respondent’s customer was going to
receive; that neither he nor Grana told employees that EAR was
formed to replace the Union; and that the Union was not dis-
cussed or mentioned with respect to EAR. On cross-exam-
ination Vidal testified that before they met with the employees
he, Burgos, Grana and Wilsher met for 2 or 3 days to discuss
the wage increases; that these management meetings occurred
at the end of April before May 4, 2001, but he could not re-
member the exact date; that Burgos picked May 4, 2001, as the
effective date; that the economic condition of the Company in
Miami was not one of the reasons for granting the wage in-
crease; that the economic condition in Miami when manage-
ment was discussing the wage increase was poor, the Company
was struggling in Miami; that the purpose of EAR was to give
the employees the opportunity to discuss any issue; that at the
meetings with the employees the wage increase was discussed
first and then EAR was discussed; and that Burgos told the
employees at these meetings
that the employees . . . petitioned not to be represented by the
union any more, and as a result then the negotiations, and the
wage increases would be done between the employees and the
company. [Tr. 954.]
On redirect, Vidal testified that while he testified that Burgos
told the employees that a petition had been signed by the major-
ity of the employees not to be represented by the Union and
negotiations would be between the employees and the Com-
pany, Burgos never said either that the wage increases were
being given as a reward for the petition or because the employ-
ees had signed a petition to get rid of the Union or because they
had removed the Union, they were getting this increase.
Burgos testified that he did not recall telling the employees
that there was a petition not to be represented by the Union, and
as a result wage increases would be given by the Company; and
that he never mentioned the disaffection petition to the employ-
ees during the 3 days of meetings he held with them regarding
the wage increases.
Grana testified that she was not involved in the decision-
making process regarding the pay increases given to Respon-
dent’s Miami employees in May 2001; that she did attend some
meetings about a week after May 4, 2001, with Burgos and
Wilsher at which the pay increases were discussed; that she was
not sure if Vidal was present; that competitors’ wages were
discussed at the meetings she attended; and that prior to May 4,
2001, the last pay increase given to the Respondent’s Miami
employees was in June 1999. On cross-examination, Grana
testified that she was called into the meeting when there was a
question about a specific department position; that she did not
remember if Toledo received a raise; that Abud Juan Carlos’
PAF indicates that he was not eligible for the raise; and that she
did not remember if Alvaro Caicedo, Ivan Vasquez, Vincent
Massari, and Maximo Rodriguez were eligible for the raise
“[b]ecause they are supervisors so they’re in another category
as the hourly employees” (Tr. 1710). On redirect, Grana testi-
fied that Respondent’s Exhibit 46 is the hourly wage structure
that the Respondent used from June 1999 to May 3, 2001; and
that this wage structure changed in May 2001 in that the Re-
spondent no longer has a 90-day increase (R. Exh. 18).
Grana further testified that about 1 or 2 weeks after May 4,
2001, she, Vidal, and Burgos held two or three employee meet-
ings to inform the employees that they were to be given a pay
increase; that Burgos was not present at all of these employee
meetings; that she spoke on benefits at these employee meet-
ings; that she prepared documents which were shown to em-
ployees at these meetings, i.e. (R. Exh. 15); that she spoke at
these employee meetings about EAR which was management
meeting with employees on a monthly basis to answer employ-
ees’ concerns; that she told the employees that they could select
employees in different departments to attend these EAR meet-
ings and the employees could write out their questions and
submit them to management; and that she drafted Respondent’s
Exhibit 40 and presented it at these employee meetings. The
poster (R. Exh. 40), reads as follows:
Employee
At improving
Relations
Every 6 months employees will select 6 representa-
tives . . . [who] will meet with management on a monthly
basis to discuss company issues.
Grana testified that the poster was only prepared in English;
and that she did not tell employees at these employee meetings
that the EAR committee was intended to replace the Union. On
cross-examination, Grana testified that EAR was the idea of
Burgos; that the purpose of the EAR committee was to give
employees the opportunity to ask questions about rumors; that
management was notified on May 23, 2001, about the imple-
mentation of EAR (GC Exh. 63(a)); that nomination forms (GC
Exh. 63(b)) were sent to employees but none were returned;
that the first meeting occurred about 1 or 2 months after May
23, 2001; that the EAR program was still in existence at the
time of the trial herein but the meetings were not being held on
a consistent monthly basis; and that the employees are not pre-
cluded from bringing up concerns they have regarding terms
and conditions of employment, including wages. On redirect,
Grana testified that while the employees could ask anything
about wages, i.e., when were they going to get a raise, the pur-
pose of the EAR committee was not to negotiate wage in-
creases.
Burgos testified that the Respondent organized or formed
employee-led improving relations committees at its facilities in
Chicago, Newark, Seattle, Los Angles, and Dallas; that the
employees of the Respondent are organized at its facilities at
JFK (New York, New York), Midway, and San Francisco; that
he was involved in the decision to implement in 2001 the EAR
committee in Miami; and that an employee committee had pre-
viously existed at the involved Miami facility in 1999 but the
group stopped meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD134
According to the testimony of Treto, sometime in May 2001,
Grana told all of the drivers who were in the portal of the load-
ing dock that “if the Union is certified, there won’t be any
raise.” (Tr. 424.) Treto testified that Supervisors Rene (Lar-
gaespda) and Angel (Sanchez) were present when Grana made
this statement. Treto also testified that Sanchez repeated what
Grana said. Although Grana testified at the trial herein, she did
not specifically deny Treto’s testimony.43 Largaespada did not
testify at the trial herein. Sanchez testified that he did not tell
any employee in 2001 that the Company would withhold wage
increases due to employee support for the Union. Sanchez did
not testify Grana did not make this statement to a group of em-
ployees including Treto.
In May 2001, the Respondent implemented a wage increase
retroactive to May 3, 2001. Balash testified that at no time in
2001 did the Respondent’s representatives request to meet with
the Union to bargain over the wage increase for the bargaining
unit employees, the parties did not bargain about a wage in-
crease for the unit during bargaining sessions, the Respondent
did not provide notice to the Union about the wage increase for
the bargaining unit before it was implemented, and he found
out about the wage increase when employees told Armero who
told him sometime in the summer of 2001. Noguera testified
that he received a raise of 50 cents in May 2001.
General Counsel’s Exhibits 46 (a) through (ee) are personnel
action forms of the Respondent, all but one with an effective
date of “5/4/01,” which document an annual salary increase for
2001 to the employees named on the forms. Most of the forms
also specify a retroactive amount. General Counsel’s Exhibit 45
also contains some personal action forms covering this salary
increase. The last annual salary increase with a scale change
before this one occurred in 1999 before the Board election.
Heston testified that for persons in job classifications when the
scale changed, their rate of pay would have changed based on
their length of service.
On May 5, 2001, Respondent’s employee Luis Hurtado re-
ceived a responsibility counseling form (verbal warning) for
reporting to work at 6 a.m. instead of his scheduled time of 4
a.m. (R. Exh. 9).
On May 6, 2001, according to his testimony, Morales and all
of the drivers from the transportation department attended a
meeting with Largaespda, who is in charge of sanitation, and
Grana. Morales testified that Grana told the employees that
they were in the process of decertifying the Union, it no longer
existed, and given this condition, there would not be any more
negotiations; and that Grana told the employees that the Com-
pany had improved financially, they were going to give salary
increases, and since there was no intermediary like the Union,
the Company was proposing to form a group, EAR, to be repre-

43 At p. 32 of its brief, the Respondent, citing p. 1508 of the tran-
script, argues that “Grana unequivocally denies telling any employee in
May or at other time that wage increase would be withheld if the Union
was certified.” The only testimony on p. 1508 of the transcript with
respect to wages reads as follows:
Q. During the orientation sessions you conducted, did you
ever tell the employees in those sessions that they would receive a
wage increase from the company if they got rid of the union?
A. No.
sented by an employee of each department to deal with the
different issues that would come up either with respect to labor
problems, wages, or any other problem. Morales testified that
Grana said that since decertification was in progress, the Com-
pany needed to form a committee of employees so that they
could deal with the internal problems. He also testified that
while he did not sign the decertification petition, he did receive
a raise. Morales gave an affidavit to the Board (GC Exh. 35) on
June 12, 2001. In the last two full sentences of the last para-
graph on page 2 of the affidavit he indicated as follows:
In that meeting they told us that there was no more union in
the kitchen because the employees had signed papers to throw
out the Union. They told us that for that reason, they had
given a raise to all the employees in the kitchen.
On re-cross, Morales testified that one of the reasons that
Grana gave that the Company was able to give an increase
when it had not before was that the Company had more busi-
ness and had made more money; and that Grana said that they
were able to give an increase because the union issue was over.
Burgos testified that he returned to Respondent’s Miami fa-
cility on May 7, 2001, and met with Vidal, Grana, and Wilsher
to discuss a wage increase that the Respondent was going to
give to its employees; that the Respondent was having a turn-
over problem because its wages were so low in that it had not
adjusted them since June 1999;44 that the pay of the transporta-
tion employees was severely under market, there was a huge
turnover, their training was substantial, and the Respondent
wanted to focus on that group more than the others; that in-
creases to management, administration, and supervisors were
not included in these discussions; that the Respondent com-
pressed its pay scale to entry, 6 months, and 12 months (delet-
ing a raise after 90 days), and it adjusted most of its rates to be
competitive; that flip charts (R. Exhs. 18, 19, and 20) were used
in the meetings with employees to explain the wage increases;45
that he told Grana and Wilsher that he made a commitment to
the employees that the Respondent would have a wage increase
on May 3, 2001, and he wanted to have one implemented on
that day; that the pay increase was effective May 4, 2001,
which was the start of a pay period; that he participated with
Vidal and Grana in all of the meetings with employees on May
9, 10, and 11, 2001, with respect to the wage increase; that he
explained the raises to the employees at these meetings and he
told them why the increases would be retroactive to May 4,
2001, namely that at the last negotiating session he made a
commitment that there would be an increase on May 3, 2001;
that he never told the employees that these wage increases were
being provided as a reward for getting rid of the Union; and
that after these May 2001 meetings with the employees regard-
ing the pay increases, he did not have any conversations with
the employees regarding the wage adjustments, other than im-
mediately following the meetings when he referred questions to
Vidal and Grana. Subsequently Burgos testified that he did not

44 Burgos testified that “[p]rior to this, Miami had an annual increase
every June.” (Tr. 1295.)
45 The drivers were shown R. Exhs. 18 and 20, and the other em-
ployees were shown R. Exhs. 18 and 19.
FLYING FOODS 135
agree with the testimony of Vidal at the trial herein that the
projections of the Respondent were off by 70 percent with Air
France and were off by 50 percent with Northwest; that the
Respondent had a 3-year written agreement which allowed Air
France, if it was not happy with the Respondent’s performance,
to cancel the agreement apparently with 30 days notice; that
since there was no written agreement with Northwest, he
guessed that Northwest could pull out whenever they wanted
to; and that 2 weeks into providing the service to Air France
and Northwest he had an understanding of what to expect from
these two accounts.
Wilsher testified that she was on the committee which de-
cided to grant a wage increase; that the committee did not dis-
cuss presenting the information about the wage increase to the
Union; that while the wage increases were retroactive, she did
not know how the date was chosen; that she did not recall when
the Company began to discuss the wage increase or when she
was asked to participate on the committee, and that seniority
and being competitive were factors which were considered for
giving the wage increase.
On May 14, 2001, Hurtado attended a meeting at work re-
garding wages. Burgos, Vidal, and Grana were present along
with about 20 other employees. According to Hurtado’s testi-
mony, Burgos spoke telling the employees that they were going
to receive a raise and that the Union was not capable of obtain-
ing a salary increase.
By position statement dated May 17, 2001, signed by Adel-
stein, the Respondent asserted that the petition that was signed
by the employees was received April 18, 2001. Adelstein testi-
fied that while he was the partner in charge of the investigation
by the National Labor Relations Board (the Board) in 2001, he
did not have much involvement in it at all; that albeit he signed
the May 17, 2002 position statement, he did not prepare it but
he did read it; and that the position statement indicates that the
petition that was signed by employees was received on April
18, 2001.
Balash testified on cross-examination that he thought that in
May or June 2001, the Union received a petition which led him
to believe that more than 50 percent of the employees at the
Respondent’s Miami facility supported the Union; that the
Company was hiring employees and the Company was not
giving the Union information on the new employees, and con-
sequently the Union did not know the total number of employ-
ees; that when he found out about the results of the petition he
was at a union convention from July 11 to 17, 2001; and that
soon after receiving the petition he issued a directive to Armero
to notify the Company that the Union had retained majority
support of the workers at the Miami facility. On redirect,
Balash testified that he believed that he saw the petitions in late
June 2001 and he did not recall seeing any petitions in July or
August 2001; and that he saw “some stuff” (Tr. 237), appar-
ently referring to “petition stuff” (id.) in June and July 2001.
On re-cross, Balash testified that he had a conversation with
organizer John Beatty about the petition, Beatty told him that
he was going to send a letter to the Company and when he
spoke to Armero about the petition, he instructed Armero to
send a letter and Armero said that he was going to send a letter
out to the Company.
By position statement dated June 20, 2001, signed by Adel-
stein, the Respondent asserts that there were 146 employees in
the bargaining unit as of April 18, 2001. Adelstein testified on
cross-examination that he read the statement prior to signing it
and in making this assertion he relied on statements given to
him by other members of his firm. On redirect Adelstein testi-
fied that he did not take any action to confirm the accuracy of
the number of 146 bargaining unit employees; and that he did
not inquire from anyone in his firm or from the Respondent
how the 146 was calculated. On re-cross, Adelstein testified
that he believed that Zdravecky prepared this and the May 17,
2002 position statements. On further redirect, Adelstein testi-
fied that he did not know for a fact that Zdravecky prepared
these two statements.
On June 28, 2001, Hurtado coordinated an American West
flight. He testified that he did not put the involved flight to-
gether; that Supervisor Bernie Toledo put the flight together
and the salad room substituted cocktail sauce for salsa for na-
chos because the Respondent did not have any salsa at the facil-
ity; that Toledo did not tell him about the substitution; that a
gentlemen from American West spoke to him insultingly about
the fact that the sauce was the wrong sauce; that he told the
gentlemen to behave like a human being and he should speak
with Hurtado’s supervisor; that he returned to the Respondent’s
facility to get the salsa sauce but when he arrived Toledo told
him that they did not have any salsa in the house, and it was not
his fault; that he went back to the airport, the plane had already
left, and he apologized to the American West supervisor about
not having the salsa for the nachos; that at the behest of his
supervisor he wrote a letter of apology to the American West
supervisor and he turned the letter over to his Supervisor Nu-
nez; and that when he spoke with the American West supervi-
sor the first time he did not raise his voice, he did not ignore the
man’s complaint, and he was not disrespectful. On cross-
examination, Hurtado testified that as a coordinator he is re-
sponsible for making sure that the meals are up to airline speci-
fications; that if the airline has a problem with something in the
process, it looks to him to resolve the problem; that ultimately
he was responsible for making sure that there were no problems
in the process; that the flight in question was Toledo’s and
Toledo prepared it; that he reported this incident to Nunez and
Rosario in Toledo’s presence the same day it occurred; that it
was Toledo’s fault that the wrong sauce was sent to American
West; and that it is the Company’s policy that all complaints
have to be responded to in writing. On redirect, Hurtado testi-
fied that Toledo made the entry in the Company’s red book
about the American West incident; and that the purpose of the
entry was to inform the general manager of the Company. On
rebuttal, Hurtado testified that he wrote a report in the red book
about the fact that American West did not receive the salsa.
However, when he was shown the red book while testifying on
rebuttal, Hurtado was unable to locate the entry he allegedly
made or the entry Toledo allegedly made. Hurtado also testified
on rebuttal that at no time during this incident did he refuse to
replace the cocktail sauce with the appropriate sauce, and he
apologized to the station manager.
Rosario testified that if a coordinator receives a complaint
from an airline, they are supposed to fill out a coordinator re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD136
port and let the managers know what happened so when the
complaint comes in the managers know how to answer; and
that he never saw a coordinator’s report from Hurtado on this
incident.
On Saturday June 30, 2001, at about 3:30 p.m. Hurtado dis-
tributed union authorization cards to employees in the parking
lot at the Respondent’s facility. Hurtado testified that it was his
day off; that the employees who received the cards were not on
the clock; and that he turned the signed cards over to Armero.
General Counsel’s Exhibit 42 is a one-page timesheet of the
Respondent for its Miami facility dated “6–30–01.” It does not
have any “time in” or “time out” for Hurtado.
Grana testified that during the month of June 2001 Hurtado
did not report to her that he was having any problems with his
time card.
On July 4, 2001, Nelson Nunez, according to the testimony
of Hurtado, approached him and said that he had been told that
Hurtado had been collecting signatures for the Union. Hurtado
testified that Nunez said that he was going to fire him because
“you’re not going to bring the union here” (Tr. 475); that Nu-
nez said that he was going to fire him for another reason and
not for what he was doing; that this was said in the presence of
a new employee named Demaris; and that he told Nunez that he
did not collect signatures during his worktime or on the job.
Nunez testified that he and Hurtado worked on July 4, 2001;
that he never had any discussions about HERE Local 355 with
Hurtado; that he never threatened Hurtado with termination
based on his support of HERE Local 355; and that he never told
Hurtado that he would find a reason to terminate him.
Demaris Fernandez testified that in July 2001 she was a
flight checker and she worked with Hurtado in the dock area at
the Respondent’s facility in Miami;46 and that at no time in July
2001 did she hear any manager or supervisor at Flying Food
threaten Hurtado with termination or threaten Hurtado or any-
one else because of their union activities.
On July 8, 2001, Demaris Fernandez received a responsibil-
ity counseling form (GC Exh. 64(a)) which refers to an incident
which occurred on July 7, 2001, namely that only 33 meals
were sent to a Northwest flight because the Respondent forgot
to send two other ovens with a total of 34 meals in them. Ac-
cording to the counseling form, the Northwest station manager
called the kitchen angry, and Fernandez, who was the flight
checker, received a verbal warning.
Armero testified that portions of the petition in support of the
Union were returned to him in June, July, and also August,
2001; that there were 76 to 78 signatures on the petition; that
the printed information on the petition was in three languages,
viz., English, Spanish, and Creole; that he turned the signed
petition sheets over to the Board; that after the Union received
the signed petition sheets “a letter was sent to the Employer . . .
and I believe to Harvey Adelstein, from another organizer
named John Beatty, [who worked in the Union’s Broward
County Florida office] letting him know that we still have a
majority . . . [of] the workforce” (Tr. 283); that he first saw a

46 She had been promoted to a coordinator position, GC Exh. 52(e),
but she did not have her identification which would allow her to go to
the airport so she continued to work as a checker at this time.
faxed copy of the Beatty letter when he came back from a un-
ion convention in California at the end of July 2001;47 that the
Union did not receive a response from Adelstein so he did not
know whether Adelstein received the Beatty letter; that the
Beatty letter has the Broward office address; that the fax infor-
mation at the top of the Beatty letter specifies “Jan. 14 2001”
because the fax machine in Broward was never programmed;
and that while he was in California for the union convention
Beatty telephoned him and told him that he was going to send
this letter to Adelstein and he would send a copy to Armero’s
office so that when he came back he could take a look at it. On
cross-examination, Armero testified that between March 2000
and May 2001 he exchanged correspondence with Adelstein
and he could not recall Adelstein ever not responding to him;
that it would be uncharacteristic and disrespectful for Adelstein
not to respond to a communication from the Union; that he
confirmed that the signatures on the petition were authentic and
belonged to current employees; that the signatures were dated
June, July, and August 2001; that the union convention was
held from July 16 to 24, 2001, and he left to go to Los Angeles,
California, on July 16, 2001; that he faxed and mailed the peti-
tion to the Board before he left for Los Angeles; that he never
made any attempt to find out why Adelstein did not respond to
the Beatty letter; and that there was no cover sheet with the
Beatty letter which was faxed to him.
Respondent’s Exhibit 4 is the seven-page union petition with
the names of those who signed deleted. The dates of the signa-
tures were left on this document which was given to the Re-
spondent by the Union pursuant to a subpoena. The dates go
from “6–26–01” to “8/03/01.”
General Counsel’s Exhibit 48 is a letter from Projections,
Inc. dated July 9, 2001, to “Dear Projections Client.” It reads as
follows:
It is now, and always has been, our policy to produce
videos for our clients that are professional, effective and
compliant with the National Labor Relations Act.
Recently, very small portions of our video “Little Card
. . . Big Trouble” have been alleged to violate the Act.
While there has been no official ruling handed down
against the video, we have settled the issue by agreeing to
change those portions of the tape which the NLRB alleges
to be non-compliant, and we now have a new and revised
version which has been reviewed by the Board’s Regional
Office in Hartford, Connecticut. Entering into this settle-
ment, we did not admit that we violated the law in any
way.
Please return to us your old copy of “Little Card . . .
Big Trouble,” and we will exchange it for the revised
video.
We at Projections value your past business and look
forward to being able to serve you in the future on any
employee communications needs you may have. Please do
not hesitate to call us on any questions regarding this mat-
ter.

47 The unsigned letter, with a union letterhead and dated July 20,
2001, was marked for identification as GC Exh. 29. It was not received
in evidence.
FLYING FOODS 137
Heston testified that the Respondent received this letter from
Projections, Inc.
Nunez testified that he received an email dated July 11,
2001, from Jeffrey Anderson, who is the station manager of
America West Airline in Miami. The email refers to the afore-
mentioned June 28, 2001 incident and claims that Hurtado was
disrespectful and had an arrogant attitude. In receiving the e-
mail (R. Exh. 11), I ruled that it was being received in relation
to the subsequent action Respondent took but if this out of court
statement was being offered for the truth of the matter being
asserted, Anderson would have to testify at the trial herein. The
Respondent did not call Anderson as a witness. Nunez testified
that it was his understanding that Hurtado, when questioned by
the station manager of American West, refused to replace the
cocktail sauce with salsa. On cross-examination, Nunez testi-
fied that he called Hurtado into his office and he spoke with
Hurtado either the same day or the day after he received the
email, telling him that there would be an investigation; that no
one else was present during this conversation; that Hurtado told
him that he found out about the fact that cocktail sauce was
included instead of salsa when the station manager at American
West told him and it was too late to change it; that he spoke
with Toledo about the email but he did not recall whether he
told Toledo about what Hurtado said happened; that Hurtado
was the one who put the flight together in the kitchen and he
probably took the wrong dip for the nachos; that he did not
believe Hurtado when he said that he did not refuse to replace
the cocktail sauce with salsa; that he believed Hurtado when, as
alleged by Nunez, Hurtado told him that there was no more
salsa and he put the cocktail sauce in; that in July 2001 there
were times when Toledo put a flight together and it was possi-
ble that Toledo put the involved flight together; that when he
asked, Toledo told him that he did not put the involved flight
together and Hurtado did “everything” (Tr. 1147); that he did
not ask Toledo who put the involved flight together not because
Hurtado told him that Toledo did; that Hurtado did not tell him
that Toledo had put the involved flight together; that he did not
recall ever receiving a written report from Hurtado regarding
this incident; and that as far as he recalled, this is the first time
that the Respondent had received a complaint from a customer
about Hurtado’s attitude.
On July 12, 2001, Hurtado was scheduled to arrive at work at
1 p.m. Hurtado testified that he telephoned work and told Gate
that he was going to be late because he was having car prob-
lems; that he arrived at work at 3 p.m.; that as he arrived at
work Raphael Rosario sent him to the airport to coordinate a
flight that was going to Italy; that when he returned to the Re-
spondent’s facility Rosario was in a meeting and so he put his
name and time, 4 p.m., in the adjustment and sick log book
(log); that later Rosario told him “that was not the time that I
had come in” (Tr. 489); that Rosario signed the log book in
front of him;48 and that Rosario told him that he would sign it,
not to worry about it, he would sign it. On cross-examination,
Hurtado testified that he did not have car problems on July 12,
2001, but rather he was at the Board giving an affidavit; that

48 Actually Rosario initialed the log book.
when he arrived at work he immediately got in a truck and went
to the airport to service a flight from Italy; that Rosario did not
go with him or stay with him, and he, Hurtado, went with the
driver himself to coordinate the flight; that while he came in at
3 p.m. he wrote down 4 p.m. in the log; that as indicated by
Respondent’s Exhibit 5, he put 3:30 p.m. in the log; that his
name appears twice on the log for July 12, 2001, and Rosario
initialed the other entry which is for 4 p.m.; and that Rosario
signed the entry he, Hurtado, made and then Rosario made an
entry for 4 p.m. On rebuttal, Hurtado testified that when he
arrived at work late on July 12, 2001, he went into the Respon-
dent’s facility before going to the airport; that Rosario did not
go with him to the airport that day; that he indicated in the ad-
justment log that he arrived at the Respondent’s facility at
15:30 or 3:30 p.m.; that he left for the airport at maybe 4:30
p.m.; that the flight was scheduled for departure at 5 p.m.; that
it takes about 15 to 18 minutes to drive from the Respondent’s
facility to the airport; and that he did not remember what time
he arrived at the airport on July 12, 2001.
Rafael Rosario, who at the time of the hearing herein worked
as a ground coordinator for Air Jamaica, worked for the Re-
spondent from 1997 to 2001. He was a transportation manager
for the Respondent in 2001 in charge of scheduling for the
transportation personnel and all of the airline catering schedul-
ing. Rosario supervised drivers, coordinators, and the supervi-
sors who worked under him, and he was responsible for setting
Hurtado’s work schedule. Rosario prepared Respondent’s Ex-
hibit 8, which is the coordinator schedule for July 6–12, 2001.
Rosario testified that on July 12, 2001, Hurtado was supposed
to be coordinating Alitalia Flight 631 which was scheduled to
depart at 4:30 p.m.; that to insure that Alitalia Flight 631 de-
parted on time, Hurtado had to leave the Respondent’s facility
at 2 p.m. to coordinate the flight; that Hurtado was scheduled to
arrive at work at 1 p.m. on July 12, 2001; that Hurtado arrived
at work at 4 p.m. on July 12, 2001; that on his way to the air-
port at 4 p.m. on July 12, 2001, he saw Hurtado parking his car
and he picked Hurtado up and drove him to the air cap; that he
then returned to the Respondent’s facility and he left Hurtado
there to turn over the prepared food and equipment to the flight
attendants; that Hurtado returned to the Respondent’s facility
about 5 p.m. after the flight took off; that he signed Hurtado in
the adjustment log for 4 p.m. so that Hurtado could get paid (R.
Exh. 5(c)); that he made this entry just before he left the facility
at 8 p.m.; that only managers, supervisors, and the dispatchers
are allowed to write the time in for employees in the adjustment
log;49 that employees are not allowed to write in the adjustment

49 Rosario testified that he told the dispatchers that when he was
busy they should put the employee’s name and time in the adjustment
log and he would sign it later. He did not tell the dispatchers anything
about the code column and the dispatchers were not allowed to initial
the entries. According to Rosario’s testimony, the only way someone
can access the adjustment log is for a dispatcher to give it to them. Also
Rosario testified that he instructed the dispatchers to put the time that
they see the employee come in the adjustment log and if the employee
wants the dispatcher to put a time in the log other than when the dis-
patcher sees the employee, that dispatcher is supposed to tell the em-
ployee to get a supervisor. Further Rosario testified that dispatchers are
not authorized to make changes to the adjustment logs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD138
log; that Hurtado did not report for work at 3:30 p.m. that day;
and that Supervisor Toledo initialed in the “supv. apprv.” col-
umn certain of the entries on the adjustment log for July 12,
2001. On re-cross, Rosario testified that on July 12, 2001, he
received a telephone call from Northwest Airlines asking for
the truck.
On July 13, 2001, Hurtado was scheduled to arrive at work at
4 a.m. He arrived at work at 5 a.m. but when there was no su-
pervisor in front of dispatch he indicated in the log book that he
arrived at 4 a.m. Hurtado testified that Rosario asked him about
the entry in the log book and he asked Rosario not to give him a
warning because other employees came in late and Rosario
would sign the log book for them; and that Rosario initialed his
4 a.m. entry. On cross-examination, Hurtado testified that he
was getting paid for an hour he did not work and this was
against company policy.
Rosario testified that Hurtado was scheduled to commence
work on July 13, 2001, at 4 a.m.; that Hurtado came to work at
5:30 a.m. on July 13, 2001; that he himself came to work at 6
a.m. on July 13, 2001; that there is a 4 a.m. “Time In” entry for
Hurtado in the July 13, 2001 adjustment log (R. Exh. 6(c)); that
he did not recall the signature in the supervisor’s box for this
entry; that when he came in at 6 a.m. they were having a prob-
lem (leaving late for the airport and missing a lot of items) with
the first flight going out of the kitchen, which was the flight
that Hurtado was supposed to be coordinating; that he has never
signed in an employee for a time other than the time he knew
the employee reported for work; that Hurtado never told him
that his card would not work in the timeclock; that Hurtado
could have received a new card the same day he reported it;
that if an employee’s card is broken, it will not work some of
the time; and that he believed that in July 2001 Hurtado had
some time punches which would mean that his card was work-
ing at that time. On cross-examination, Rosario testified that he
did not recall signing Hurtado’s entry in the adjustment log for
July 13, 2001, but it could be that it was given to him on Satur-
day; and that Grana did not ask him why there were two entries
for Luis Borja on the adjustment log for July 13, 2001. On re-
cross, Rosario testified that he changed one of the entries for
Borja on the July 13, 2001 adjustment log to 1600 but he did
not remember what it was changed from. Later Rosario testified
that on July 13, 2001, Borja came in at 4 p.m., he saw him at 4
p.m. but the dispatcher did not see him until 4:30 p.m. and this
is why he changed the log to 1600 (or 4 p.m.) apparently from
1630.
By responsibility counseling form dated “7–15–01” (GC
Exh. 65), employee Berthony Lemineur received a verbal warn-
ing indicating, as here pertinent, “Nelson [Nunez] stated to you
that you are required to clock in and out on a daily basis. In the
last 18 work days you had 15 days of adjustments, which you
did not clock/punch in or out” and “You must arrive at your
scheduled time.” Grana testified that she knew that this indi-
vidual was verbally counseled. On redirect, Grana testified that
Lemineur had not received any prior counseling for excessive
use of the adjustment log or failing to clock in prior to this dis-
cipline.
On Monday July 16, 2001, Rosario, according to his testi-
mony, went to payroll and spoke with Grana. Rosario testified
that he went to check what time Hurtado came in on July 13,
2001, because the supervisor who was on duty, Bernie Toledo,
told him that Hurtado came in at 5:30 a.m. and there was a
problem with the flight; that when he asked Grana what time
Hurtado came in on July 13, 2001, she said, “[y]ou sign it [the
adjustment log]. Look like you sign him in, someone sign him
in. Look, four in the morning” (Tr. 777); that Grana also
showed him that Hurtado was signed in twice on the adjustment
log for July 12, 2001; that he told Grana that Hurtado came in
to work at 4 p.m. on July 12, 2001, and he took him to the air-
port; and that they decided to speak with Hurtado when he
came back to work on Wednesday, July 18, 2001. On cross-
examination, Rosario testified that he did not check the adjust-
ment log on Friday before he left work and nothing occurred on
Monday July 16, 2001, to cause him to think about what had
happened on the previous Friday. On redirect, Rosario testified
that he went to Grana on July 16 to make sure what time Hur-
tado came in because Toledo told him that Hurtado came in at
5:30 a.m.; that he did not know whether Hurtado had punched
in or signed in and this is why he went to payroll to ask; that he
looked up Hurtado’s time records for July 12 and 13, 2001,
because Hurtado was causing the company problems; that both
of Borja’s entries for July 13, 2001, had the same entry time so
they would not be investigated; and that a question arose re-
garding Hurtado’s two entries on the July 12, 2001 log because
one was for 3:30 p.m. and the other was for 4 p.m., and a de-
termination had to be made which was correct for payroll pur-
poses.
According to Grana’s testimony that the timeclocks are pro-
grammed so that an employee cannot punch in more than 7
minutes prior to the start of the shift and cannot punch out more
than 7 minutes after the end of the shift. Department managers
have cards which can override the system and if it is past the
employee’s start time, the managers or dispatch clerks can log
in the employee’s start time in the sick and adjustment log
which was kept in the dispatch office next to the timeclock.
On July 18, 2001, Hurtado was given a final warning (GC
Exh. 37), in Grana’s office.50 In addition to Grana, Raphael
Rosario and Nelson Nunez were also present. Hurtado testified
that Grana said that he had various warnings, it was unaccept-
able, and she had to fire him; that he wrote on the warning that
he intended to make a response to the gentlemen from Ameri-
can West; that during this meeting certain of his “time in” en-
tries in the log book were discussed; that he uses his identifica-

50 The responsibility counseling form indicates that the date of the
involved incident is “6/28/01.” The “details of the incident” are as
follows:
The station Mgr. of AWA was very upset because on flt. # 558 they
complained to you about the sauce. He stated that you tried to ignore
the complaint and that you got very defensive and argued with the
customer. He also stated that you were very disrespectful to the cus-
tomer.
“Final Warning” is circled on the form. The “Improvement Plan” reads
as follows:
You should never argue with a customer. You should always try to re-
solve the problem without arguing with the customer. If you are un-
able to resolve the problem, you must communicate it with your su-
pervisor.
FLYING FOODS 139
tion card to punch the timeclock and his card would not work in
the timeclock for 4 or 5 months before this; that dispatch kept
the log book; that when his card stopped working in the time-
clock he told Grana and his Supervisors Nunez, Toledo,
Rosario, and Largaespada; and that when there was no supervi-
sor available, he would put his name and arrival time in the log
book and later tell the supervisor so the supervisor could initial
the entry. On cross-examination, Hurtado testified that he told
Grana that other employees had written themselves in the log;
that he was told that he would be suspended pending an inves-
tigation of what he would provide for them to review; and that
he did not provide the names of other employees who had writ-
ten their own names in the log.
Rosario testified that he and Grana met with Hurtado on July
18, 2001, at about 5 p.m.; that Hurtado took the adjustment log
sheets out of Grana’s hands and he wrote on them, saying that
he wanted to fix the entries; that Hurtado was told that he was
suspended pending an investigation; that he needed to speak
with Toledo, the supervisor who was on duty the morning of
July 13, 2001; that Hurtado said that he wanted to take the mat-
ter to the Union, and Grana told Hurtado that he had to do what
he had to do; that neither he nor Grana threatened Hurtado with
termination if he went to the Union; that Hurtado was sus-
pended for 3 or 4 days; that while Hurtado was suspended he
“got with Bernie [Toledo] and . . . [Grana] . . . to make sure that
. . . [Hurtado] came in at 5:30 [a.m.]”; that Hurtado came to
work on July 13, 2001, at 5:30 a.m. and not 4 a.m.; that follow-
ing Hurtado’s return to work after his suspension, he did not
have any further meetings with Hurtado where his log ins were
discussed; that on July 18, 2001, he gave Hurtado a final warn-
ing (GC Exh. 37) for the American West incident; and that the
meeting with Hurtado regarding General Counsel’s Exhibit 37
occurred earlier than the meeting with Hurtado regarding the
adjustment log and Grana was not present when he met with
Hurtado regarding the warning over the American West inci-
dent.51 On cross-examination, Rosario testified that during this
meeting Grana did not give the copies of the adjustment log she
had to Hurtado but she showed Hurtado the copies while she
was at the desk about 1 foot away from Hurtado; that after Hur-
tado was told that he was suspended pending the investigation,
“[t]hen I went and investigate[d], talked to Bernie [Toledo, the
supervisor on duty], found out what’s happening” (Tr. 841), to
make sure about the time Hurtado came in on July 13, 2001;
that when Hurtado said that he was going to take this to the
Union, Grana said that he should do what he had to do; and that
he did not know that Hurtado supported the Union before Hur-
tado made this statement.
Grana testified that she and Rosario met with Hurtado in her
office on July 18, 2001; that when she showed Hurtado a copy
of the adjustment log and asked him why was a manager told
that he had come in at a certain time, and his manager had writ-

51 Rosario testified that at one point that he and Grana gave Hurtado
the write up. Perhaps he meant that Grana participated in the drafting of
the write up. At another point Rosario testified that he did not know
who prepared GC Exh. 37. According to Rosario’s testimony, he and
Nunez met with Hurtado regarding the warning over the American
West incident.
ten in about an hour and a half after the time Hurtado stated that
he had come in, Hurtado took the copy of the adjustment log
from her hand and corrected it; that Respondent’s Exhibit 5(c)
is the original page from the adjustment log for July 12, 2001,
Respondent’s Exhibit 5(a) is a copy of that page, and Respon-
dent’s Exhibit 5(b) is the copy of the adjustment log for July
12, 2001, which Hurtado changed in Grana’s office from 15:30
to 16:30, which was 30 minutes later than the time entered by
Rosario, namely 16:00; that Respondent’s Exhibit 6(c) is the
original adjustment log page for July 13, 2001, Respondent’s
Exhibit 6(a) is a copy of that original page, and Respondent’s
Exhibit 6(b) is the copy that Hurtado altered in Grana’s office,
changing the start time from 4 a.m. to 5:30 a.m.; that Shift Su-
pervisor and Manager Largaespada wrote Hurtado’s name on
line 10 of Respondent’s Exhibit 5 with a time in of 15:30; that
Hurtado told her that he was aware of company policy but he
knew of other employees who wrote their names and times in
the log book because sometimes managers would forget; that
when she asked for the other employees’ names Hurtado gave
her the names of two other employees, Damaris Fernandez and
Adriana Salinas, who had written in the adjustment log, and she
disciplined both of these employees;52 that when she met with
Salinas on August 2, 2001, she told her that she was receiving a
verbal warning to document the adjustments that she had in her
record, it is against company policy to have so many adjust-
ments, and all hourly employees are required to clock in and
out on a daily basis; that when she and Rosario met with Hur-
tado on July 18, 2001, Hurtado told her that he was going to
talk to the Union about the disciplinary action form and she told
Hurtado that if he felt that he needed to, he should go ahead;
that she never told Hurtado that going to the Union would just
result in further discipline; and that before Hurtado’s statement
she did not know Hurtado’s feelings about the Union. On redi-
rect, Grana testified that the Respondent’s policy regarding
falsification of company records is that the employee would be
disciplined up to and including termination.
Nunez testified that he met with Hurtado in Grana’s office,
with her present, about the American West June 28, 2001 inci-
dent; that no one else was present; that Hurtado told him that he
did not have the salsa so instead he put the cocktail sauce in for
the nachos; and that General Counsel’s Exhibit 37 is the coun-
seling form regarding the discipline that Hurtado received over
the June 28, 2001 incident. On cross-examination, Nunez testi-
fied that Grana did not speak during this meeting; and that
when Hurtado was called into Grana’s office, the counseling
report was already filled out.
On July 25, 2001, Hurtado received a “Final Warn-
ing/Suspension for 2 days” from Grana in her office (GC Exh.

52 R. Exhs. 41 and 42, respectively. Both are memorializations of
verbal warnings. Grana testified that these two employees were given
verbal warnings because they had no prior incidents. Both of these
responsibility counseling forms are dated “8/2/01.” Both refer to the
number of adjustments these employees had in the past month and both
indicate “You must punch in and out on a daily basis.” Neither form
refers to the employee herself writing her name and the time in the
adjustment log. On redirect, Grana testified that neither Fernandez or
Salinas, to her knowledge, received prior discipline regarding excessive
use of the adjustment log or any other timekeeping matters.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD140
38.53 Hurtado testified that Nunez was present; that he wrote on
the form that he was not in agreement with what was written on
the document; that on July 25, 2001, he also received another
“Final Warning/Suspension for 2 days” (GC Exh. 39), for inci-
dents dated “6/15–7/12/01”;54 that Grana, Nunez, and Rosario
were present when he received General Counsel’s Exhibit 39;
that he wrote on the form that he was not in agreement with the
information being given in this document; that Grana said that
she could not accept his conduct and she had to fire him
whether he was going to speak to the Union or not, or whether
he made allegations to the Labor Department; and that at the
direction of Grana, her secretary tried Hurtado’s identity card in
the timeclock and she advised Grana that the card did not work.
On cross-examination, Hurtado testified that while he remem-
bered that Nunez was at this meeting, he did not remember if
Rosario was there also; and that Grana told him that she was
going to give him the benefit of the doubt and he would not be
disciplined beyond the suspension. On re-cross, Hurtado testi-
fied that during his meeting with Grana on July 25, 2001, when
she showed him copies of the July 12 and 13, 2001 pages of the
Adjustment log he changed the entries on the two sheets during
this meeting.
On rebuttal, Hurtado testified that on the day in July 2001
when he “received the disciplines” (Tr. 1800) Grana neither
discussed anything with respect to a policy concerning the ad-
justment log, not did she ask him if he knew anything about not
being allowed to write in the log as an employee; that he knew
of other employees who had a practice of signing the adjust-
ment log but he did not remember their names and he did not
mention their names to Grana during this meeting (As noted
above, Hurtado testified that the question of other employees
writing in the adjustment log came up at the July 18, 2001
meeting.); that to his knowledge, there was no policy in place
with respect to writing in the adjustment log before he was
disciplined; that he did not recall if there was a policy regarding
attendance and timeliness implemented for all employees after
he was disciplined;55 and that during the disciplinary meeting

53 The dates of the incidents given on the responsibility counseling
form are “7/12/01 & 7/13/01.” The “details of the incident” portion of
the form reads as follows:
On the days stated above you arrived late to work and you did not
punch in or out at the time clock. You also told a manager to write you
in on the adjustment log earlier than your actual arrival time on both
days. You even took my copies of the adjustment log and changed
them to what your management had stated that your actual time was.
The “Improvement Plan” portion of the form reads as follows: “You
must arrive at your scheduled time at all times and you must punch in
and out daily. No excuses will be accepted.”
54 The “details of the incident” portion of the form reads as follows:
1/11/01 and 5/05/01 you have been warned about your tardiness and
not punching in and out on a daily basis. In 21 days that you work[ed]
you had 12 adjustments. This is unacceptable.
The “Improvement Plan” portion of the form reads as follows:
You are required to clock in and out on a daily basis. You cannot write
anything on the adjustment log. It is only for management or author-
ized personnel only.
55 Hurtado testified about a period when his ID card worked but he
had to have a supervisor punch him in and out. Hurtado, however, was
he made the changes to Respondent’s Exhibits 5(b) and 6(b) in
Grana’s office when he was directed by Grana to put down the
time he checked in, the papers were on her desk, and he did not
snatch or grab them out of Grana’s hands. On cross-exam-
ination, Hurtado testified that he knew Damaris Fernandez but
he did not know if she ever made an entry for herself in the
adjustment log; that he did not know Adriana Salinas by name;
that the original entries he made in the adjustment log were
incorrect; and that he knew at the time he made the involved
entries in the adjustment log book that the information was
incorrect.
Regarding Respondent’s Exhibit 39, Grana testified that
Hurtado had written his time in the adjustment log which only
managers are allowed to do; that there were some incidents
about Hurtado falsifying time records; that for 1 day there were
two entries for Hurtado and two different managers had signed
a different time for coming in; that Rosario was present for the
meeting she had with Hurtado on July 18, 2001, but Rosario
was not present for the meeting she had with Hurtado on July
25, 2001; and that Hurtado was suspended a total of 4 days in
July 2001, with 2 of the days reflected on General Counsel’s
Exhibit 38 and 2 of the days reflected on General Counsel’s
Exhibit 39. On cross-examination, Grana testified that she com-
pleted the entire document (GC Exh. 39), on July 25, 2001.
Subsequently Grana testified that she did not recall having
someone check whether Hurtado’s card worked in the time-
clock on July 25, 2001, but she did not think this happened
because Hurtado did not tell her that the card was not working
at the time.
On July 26, 2001, according to Hurtado’s testimony, Grana
gave Hurtado a new card but it did not work in the timeclock,
Hurtado had to call his supervisor to get authorization, and
again his time was reported in the log book.
Grana testified on direct that Hurtado asked for a new time-
card after she spoke to him about having to many entries in the
adjustment log; that Hurtado told her that his card was not
working; that she had the payroll clerk make him a new one so
he wouldn’t have that problem; and that she believed that this
occurred in July 2001.
Demaris Fernandez testified that employees are not allowed
to write in the adjustment log; that she received a verbal warn-
ing for failing to punch in and out and before this warning she
had never been disciplined for any attendance violations or for
failing to punch in and out; that her I.D. badge does not work
when it gets old and so she cannot use it to punch in or out; that
she received this verbal warning when she was breaking in for
flight checker because she would get to work early and forget
to punch in;56 that Grana gave her the warning; and that she had
to have her badge replaced once since July 2000 and that oc-
curred 4 or 5 days before she testified herein on May 7, 2002.
Grana posted Respondent’s Exhibit 43 on August 13, 2001.
It is an attendance and timekeeping policy statement. Grana

not sure when this occurred in that he could not remember the day or
the month or even the year this allegedly occurred.
56 According to GC Exhs. 52(d) and (e), which are PAFs, the effec-
tive date of the transfer to the flight checker position was “5/11/01” and
the effective date of her promotion to coordinator was “6/17/01.”
FLYING FOODS 141
also put in big bold letters on the bottom of the adjustment log
that any employee falsifying or altering the adjustment log
would be disciplined up to and including termination.
General Counsel’s Exhibits 47 (a) through (kkk) are PAFs of
the Respondent which collectively document resignations, dis-
charges, layoffs, and voluntary quits in the first 8 months of
2001.
General Counsel’s Exhibit 55 is a list of active employees at
the Respondent’s Miami facility from January 1 to August 31,
2001, as well as a list of terminated employees for the same
period.
Burgos testified that General Counsel’s Exhibit 3 is the em-
ployee handbook which was in effect for the employees at the
involved Miami facility in 2001; and that the handbook indi-
cates that it was “Revised January 2001” but he did not know
what period that handbook was in effect at the involved Miami
facility. The following appears on page 22 of General Coun-
sel’s Exhibit 3:
Unions
At Flying Food, we are committed to a Company’s
philosophy of maintaining a workplace free of unlawful
discrimination and fully utilizing our “Open Door” policy.
Flying Food strongly believes that individual considera-
tion in employee/supervisor relationships provides the best
climate for maximum development, teamwork and the at-
tainment of our goals.
The majority of the American work force, as well as
the majority of Americans employed in the food service
industry, do not belong to unions (less than twelve percent
[12 %] nationally). Union free status is decided by the
choice of our employees, under rights guaranteed to them
by federal labor laws.
We do not believe that third party representation of our
employees is necessarily in the best interest of our em-
ployees or of the Company. We enthusiastically accept our
responsibility to provide good working conditions, good
wages and benefits, fair treatment and the personal respect
that is rightfully yours. All this is a part of your job with
our Company and need not be “purchased” by you from an
outside third party. Please remember that the presence of a
union will not guarantee that you and your fellow col-
leagues will receive any benefits that could not otherwise
have been enjoyed without a union.
At Flying Food, you already have the full opportunity
to express your concerns, suggestions and comments to us
directly so we can better understand each other. We do not
need a third party to continue this long-standing policy. As
a team, we can resolve issues, implement new ideas and
provide useful information and clarification.
Where a union is already present, we pledge to abide
by the rules set forth in the collective bargaining agree-
ment and to bargain in good faith. This handbook, which
is applicable to all employees, sets forth the policies and
rules, except where it is contradictory to any applicable la-
bor contract, in which case the labor contract provisions
shall apply for the bargaining unit employees.
Grana testified that Heston sent her General Counsel’s Exhibit
3 from the corporate office in Chicago, Illinois, in May 2001,
with instructions not to distribute the employee handbook to
employees at the Respondent’s Miami facility because “we
were in negotiations with a union” (Tr. 1475); and that the
handbook was not distributed to employees until around June
2001.
Armero testified that if a company under the jurisdiction of
the National Labor Relations Act, like the Respondent, has a
collective-bargaining agreement with the Union, the new hires
can make a determination as to whether they want to become a
union member or not.
Burgos testified that he was involved in the negotiations for
the first collective-bargaining agreements at JFK and Midway,
and it took roughly 9 months to negotiate the former and 11
months for the latter; and that negotiations for a collective-
bargaining agreement at San Francisco, which started about
March 2001, were interrupted after September 11, 2001, but
negotiations were scheduled to resume in April 2002.
Mazier has worked for the Respondent for about 6 years. He
testified that his job title is maintenance supervisor; that he
does not supervise any employees in the maintenance depart-
ment; that he reports to the Nunez; that in the mornings he, by
himself, delivers equipment to the lunchroom of the pilots for
UPS, which takes about 2.5 hours; that he then returns to the
Respondent’s facility and he, by himself, maintains the equip-
ment used in the production area; that he purchases the parts for
repairing the equipment; that he does not punch a timeclock;
that employees in the production area punch a timeclock; that
Nunez does not punch a timeclock; that he receives a work
schedule every Friday (GC Exh. 5);57 that he is not eligible to
receive overtime pay; that the employees who work in the pro-
duction area are eligible to receive overtime pay; that on his
“PERFORMANCE REVIEW, MANAGEMENT/EXEMPT
EMPLOYEES,” form General Counsel’s Exhibit 6, which has a
job title of maintenance, he signed on the “Employee’s Signa-
ture” line on “01–30–01” and Wilsher signed on the “Man-
ager’s Signature” line; that he received a pay raise in 2001;58
that he is not in favor of or against the Union; that General
Counsel’s Exhibit 9 references a meeting he had with an attor-
ney with respect to an appointment he had with the Board;59

57 The document is titled “MANAGEMENT SCHEDULE.” Mazier is
1 of 14 people listed on the document for the week of October 1, 1999.
In the column designated “POSITION” 10 of the 14 people listed hold
a position which is specifically designated on the document as “man-
ager” or “supervisor.” The four exceptions are the executive chef, the
controller, who is Monica Wilsher, mechanic, who is Angel Sanchez,
and maintenance, who is Mazier.
58 GC Exh. 7 is the “PERSONNEL ACTION FORM” which is dated
“1–01–01.” It designates the involved position as “Dishrm. Supv.”
59 As here pertinent, the invoice reads as follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD142
and that he did not pay the attorney, R.T. Kofman, any money
for meeting with him.
Respondent’s employee Noguera testified that while Mazier
could not discharge employees, he could give his opinion to the
administration and most likely the employee would be fired or
suspended. Noguera did not know of anyone who Mazier said
should be fired. According to Noguera’s testimony, Mazier
could not lay off employees, give a wage increase, promote
employees, transfer employees, or resolve employee griev-
ances.
Morales testified that Mazier gave him the paper work for
getting an airport identification badge and he returned the paper
work to Mazier; and that Mazier’s badge specifies “Mainte-
nance Manager.” On cross-examination, Morales testified that
he has seen Mazier working with Angel Sanchez doing repairs
and he has not seen Mazier perform repairs with anyone else.
Morales also testified that there are two IDs for the airport and
Mazier is responsible for the paper work on both applications.
Morales testified that he also helped drivers fill out their appli-
cations for customs and the airport; and that the help he gave
was the same kind of help that Mazier gave to him. The appli-
cation forms for identification badges are in English.
On cross-examination, Treto testified that Mazier was a su-
pervisor who was responsible for the employees obtaining iden-
tification badges, Mazier also got involved in transportation,

LAW OFFICES
STEARNS WEAVER MILLER WEISSLER ALHADEFF &
SITTERSON, P.A.
2200 Museum Tower
150 West Flagler Street
Miami, Florida 33130
DARIO MAZIER August 30, 2001
c/o Neal, Gerber & Eisenberg 15602958
Attention: Harvey Adelstein ....
Two North LaSalle Street, Suite 2200
Chicago, IL 60602
For Professional Services Rendered Through July 31, 2001
Our matter #36339,0001
NLRB Investigation
Date Attorney Description
07/18/01 RTK Conference with Mazier
regarding Representation; preparation
of representation document;
07/18/01 ALR Draft representation letter to D. Mazier;
07/19/01 RTK Review documents received from Har-
vey Adelstein regarding background of
NLRB Charges; conference with Dario
Mazier regarding representation;
07/24/01 RTK Meet with Harvey Adelstein to discuss
Back ground facts and preparation for
interview Of Dario Mazier;
07/25/01 RTK Conference with Dario Mazier to pre-
pare for his Interview with the NLRB;
. . . .
“RTK” is R.T. Kofman and “ALR” is A.L. Rodman. The hours, rate,
and dollars on the invoice are not included here. The total due as speci-
fied by the invoice was $2,349.50.
Mazier could discipline employees, but he could not name any
employee at the Respondent who reported to Mazier.
Hurtado, who has worked for the Respondent at its Miami
facility for about 6 years, testified that he did not know Mazier
as a supervisor in the years that he had been at the Respon-
dent’s facility.
Adelstein testified that it is the Respondent’s position that
Mazier is not a supervisor and when he was advised that Mazier
was contacted by the Board and wanted an attorney, he advised
the Respondent that he did not believe that his firm should be
representing Mazier; and that he told Burgos, who said that the
Respondent was willing to pay the fee, that he would get a law-
yer for Mazier. On cross-examination, Adelstein testified that
Kofman represents management in labor relations matters; that
the bill was sent to his attention and he did not forward it to
Mazier but rather he forwarded it to the Respondent to pay; and
that he did not know if the bill had been paid or not.
Grana testified that those of the Respondent’s employees,
supervisors or managers who as part of their job go to the Mi-
ami Airport must go through a background check and get an
airport ID badge; that Miami International Airport issues the
airport ID badge; that Mazier or, when he is not present, either
Sanchez or Boada, completes the paper work (R. Exh. 45) for
the employee’s ID badges;60 and that Mazier and Sanchez were
not authorized to sign on behalf of the Respondent with the
Miami-Dade County Aviation Department. On cross-
examination, Grana testified that in 2001 Mazier was promoted
to dish room supervisor but she did not remember the date of
the promotion; that she signed General Counsel’s Exhibit 7 on
“6/22/01,” which as noted above is a PAF for Mazier which
describes his position as dish room supervisor, and which has
an effective date of “1–01–01”; and that General Counsel’s
Exhibit 66 is a PAF she wrote up and signed on “5/1/01” which
has an effective date of “4/30/01,” and the form represents the
fact that Mazier “was changing from a maintenance mechanic
to a dish room supervisor” (Tr. 1733). Subsequently, Grana,
especially in view of the fact that she wrote and signed both
forms, was asked to explain the apparent documentary contra-
diction as to when Mazier became a dish room supervisor. Af-
ter apparently testifying that Mazier was a dish room supervisor
in January 2001, Grana ultimately testified that she was not
sure when Mazier became a dish room supervisor.
Sanchez worked for the Respondent at its Miami facility for
4 years. He testified that before September 11, 2001, there were
three mechanics, including himself, in the maintenance depart-
ment; that the other two mechanics, Jared Garmley and Fran-
cisco Alzate, left after September 11, 2001; that he maintains
the 17 trucks that Respondent has in Miami; that he purchases
the repair parts for the vehicles after he gets authorization from
his manager, Nunez, or Diamond, or Vidal; that as indicated by
General Counsel’s Exhibit 12, on August 15, 2000, he received
a certificate of achievement for the successful completion of
“The Responsibility Counseling Workshop, Management
Training Series” which was cosigned by Heston and Diamond;

60 An identification card (badge) is also required by the Department
of Treasury, United States Custom Service. The application form is
included in R. Exh. 45.
FLYING FOODS 143
that the workshop dealt with counseling employees; that he
never had occasion to use the training because he was not coun-
seling employees; that he has never made a recommendation to
the human resources manager about counseling an employee;
that when he received the training there was only one other
employee working with him; that he signed General Counsel’s
Exhibit 10, which is a “PERFORMANCE REVIEW
MANAGEMENT/EXEMPT EMPLOYEES” dated “8/22/01”;61
and that he signed General Counsel’s Exhibit 11 on the line for
“Supervisor/dept. Head Signature,” which is “Flying Food
Group, Responsibility Counseling Form” dated “5/23/01” but
human resources decided the discipline in this situation and he
did not make a recommendation. Sanchez further testified that
the other two mechanics picked up parts, he would send them if
he was not available, and he would get approval to purchase the
parts from the general manager. Also, Sanchez testified that the
other two mechanics punched a timeclock and he did not. Gen-
eral Counsel’s Exhibit 13 is a “PERSONNEL ACTION
FORM” for Sanchez dated “3/1/01” which under “POSITION”
specifies “Mechanic/Shift. Mgr.” Sanchez testified that other
than the disciplinary action memorialized by General Counsel’s
Exhibit 11, he was not involved in the disciplinary action of
any other employee. Subsequently Sanchez testified that the
two other mechanics received their direction as to what to do on
the trucks from him, the transportation manager and the opera-
tions manager; and that if the other two mechanics needed time
off they spoke to the operations manager.
Gana testified that Sanchez had his own office.
Treto testified that when he started working for the Respon-
dent in February 2001 Sanchez was a supervisor; that Sanchez
ran transportation; and that Sanchez approached the drivers
with authority as a supervisor and let them know that if they did
not follow the company policies and procedures they would be
dismissed. On cross-examination, Treto testified that Sanchez
was a supervisor who used to run transportation; that Sanchez
was a mechanic; that Sanchez does everything as far as fixing
things; that Sanchez follows the schedule set by Nunez and
Largaespada; and that Sanchez has filled in for absent drivers.
As noted above, Rosario testified that only managers and su-
pervisors could sign or initial the entries in the adjustment log.
Toledo’s initials appear in the log.
In the beginning of May 2002, a week before she testified at
the trial herein, Wilsher was asked by one of the attorneys for
the Respondent, Harry Secaras, to confirm how many employ-
ees there were in the Flying Food Group Miami facility on
April 18, 2001. Wilsher testified that when she had a question
whether or when an employee was terminated she would tele-
phone Grana who would give her the information based on
some document Grana had; that she did not know where Grana
got the information; and that she used Respondent’s Exhibits 12
(titled Miami Payperiod Cycles—2001) and 16 (a payroll regis-
ter) in her review.

61 Under “Job Title” the form specifies “Maint./shift supv.” Sanchez
signed the form on the employee’s signature line.
Analysis
Paragraph 7 of the consolidated complaint alleges that since
on or about January 30, 2001, Respondent failed and refused to
provide a wage proposal to the Union. The General Counsel on
brief contends that while the parties agreed to hold off any dis-
cussion of economic subjects until after noneconomic issues
were addressed, there is ample record evidence to demonstrate
the Respondent’s reluctance to address economic subjects when
the time arrived; that the Respondent maneuvered to avoid
finalizing a collective-bargaining agreement; that since the
Respondent did not present conclusive proof to support its
claim that its Miami operation was in the midst of severe finan-
cial difficulties, it can only be found that Respondent’s refusal
to extend any type of counteroffer for economic subjects consti-
tutes a failure and refusal to bargain in good faith; that the Re-
spondent’s continued insistence on an audit is unreasonable and
constitutes bad-faith bargaining, Tama Meat Packing Crop.,
291 NLRB 657 (1988); that Vidal testified that in January 2001
the financial state of the Miami facility was pretty good and the
company definitely expected more improvement; that the delay
was solely for the purpose of getting beyond the certification
year so that the Respondent could coerce employees to decer-
tify the Union through the Respondent’s actions and inaction at
the bargaining table; that the Respondent’s subsequent grant of
retroactive wage increases after withdrawal of recognition
strongly supports a finding that the Respondent’s financial
claim was a delay tactic to obtain time and opportunity to un-
dermine union support and foment employee discontent, S-B
Mfg. Co., 270 NLRB 485 (1984); that the Respondent was
aware of the employees’ frustration; and that Respondent’s
hiring of new employees at higher wage rates was calculated to
prove union impotence and belies the Respondent’s claim of
financial difficulties. The Respondent on brief argues that the
parties agreed at the initial bargaining session that all non-
economic issues would be decided prior to turning to econom-
ics, and that point was not reached until the eighth bargaining
session held on January 31, 2001; that the Respondent never
refused to make an economic proposal; that the Union agreed to
audit the Respondent’s financial records; that when the Union
decided not to audit the parties held another negotiating ses-
sion; that, after the Respondent explained about the two new
accounts, the Union agreed to wait until May 3, 2001, for the
Company’s economic proposal; that an employer does not vio-
late the Act simply by refusing to make a proposal to raise
wages or overall economic benefits as long as it engages in the
bargaining process, University of Vermont/Vermont Educa-
tional Television, 258 NLRB 247(1981); that “the evidence
establishes that the Union failed to make economic proposals
which the Company could afford to accept”;62 that while the

62 R. Br. 81. Since the Respondent never did offer an economic pro-
posal, perhaps what the Respondent is arguing is that the Union did not
succeed in bargaining against itself, and the Respondent should not be
held responsible for that. The Respondent also argues that what Adel-
stein said to Balash on January 30, 2001, namely that the Union should
just walk away from the unit, does not establish that Adelstein had no
intention of reaching agreement with the Union. This argument must be
viewed in the light of the fact that Adelstein is listed as one of two
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD144
evidence establishes that the Company’s financial condition did
not change between January 31 and March 28, 2001, the Air
France and Northwest accounts were projected to have a sub-
stantial impact on the financial condition of the Respondent;
and that the Respondent needed just a few weeks to assess the
startups and it would be in a position to give a more favorable
economic proposal and the Union agreed to that plan.
Contrary to counsel for the General Counsel’s contention,
the Respondent did not continually insist on an audit. Rather
the Respondent offered to allow the Union to have its account-
ants audit the Company’s finances for all of its operations and
the Union initially accepted the offer. Also, contrary to the
impression left by counsel for the General Counsel’s conten-
tion, Vidal did not take the position that the financial state of
the Miami facility was pretty good and the Company expected
more improvement. Vidal was basically a credible witness. He
no longer works for the Respondent. Some of his testimony
contradicts that of Burgos, who, in my opinion for the reasons
given below, is not a credible witness. Vidal credibly testified
that the Respondent was losing between $3000 and $4000 a
week in Miami before it obtained the Air France and Northwest
accounts; that when the Respondent began servicing these two
accounts its financial situation got worse; that it took months
before the Respondent was able to determine whether the Air
France and Northwest startups met its projections; that Air
France reached about 70 percent of Respondent’s projection
and Northwest reached only 50 percent of the Respondent’s
projection; that the economic condition of the Company was
not one of the reasons for granting the wage increase; and that
the economic condition in Miami when management was dis-
cussing the wage increase was poor, the Company was strug-
gling in Miami. Yet, approximately 5 weeks after Adelstein and
Burgos would not give an economic proposal on March 28,
2001, which was a reiteration of their January 30 and 31, 2001
position, the Respondent gave a wage increase retroactive to
May 4, 2001. I do agree with the contention of counsel for the

people to contact on his firm’s labor and employment web site, GC
Exh. 56, which site indicates, as here pertinent,
Neal, Gerber & Eisenberg represents employers nationally in
all aspects of labor and employment law, including employment
counseling, union avoidance, collective bargaining and employ-
ment-related litigation before federal and state courts and federal,
state and local administrative agencies. . . .
The Firm’s Labor & Employment attorneys, widely familiar
with unions at the local and national levels, offer experienced rep-
resentation in all aspects of the labor-management relationship.
Beginning with union -avoidance and the union-organizing cam-
paign, Labor & Employment practice group attorneys advise em-
ployers on what they can and cannot do to discourage union-
organizing activity among employees. For example, the Firm suc-
cessfully represents employers in numerous union-organizing
drives each year and currently is advising a major meal provider
to airlines on how to preserve its non-union status in an industry
where all competitors have been organized.
On cross-examination, Adelstein testified that he really did not know
which major meal provider to airlines the web site refers to; that his law
firm represents only one major meal provider to airlines; that the one is
Flying Food Group; and that he assumes that his firm’s web site refers
to Flying Food Group.
General Counsel that the Respondent’s subsequent grant of a
retroactive wage increase after an unlawful withdrawal of rec-
ognition strongly supports a finding that the Respondent’s fi-
nancial claim was a delay tactic to obtain time and opportunity
to undermine union support and foment employee discontent.
The financial situation at the Miami facility had not changed
from January 31, 2001, to when the retroactive wage increase
was granted. And in the interim, as more fully discussed below,
the Respondent (a) showed its employees at least one antiunion
video as part of its plan to generate employee disaffection with
their certified Union; (b) unlawfully had an agent and a super-
visor, who misrepresented the purpose of the petition, collec-
tively solicit signatures on a disaffection petition; and (c)
unlawfully withdrew recognition of the Union citing a petition
that it had to know would not withstand scrutiny by the Board,
especially in view of the fact that the Company now must prove
that the incumbent union has, in fact, lost majority support.63
While the Respondent did not specifically state at the bargain-
ing sessions on January 31 and March 28, 2001, that it refused
to offer an economic proposal, that is exactly what it was doing
at these two bargaining sessions. This is a situation where con-
duct speaks louder than words. Adelstein has a lot of experi-
ence representing management. While he may have unwisely
shown his hand with the firm’s advertising on the internet, in
my opinion it is not reasonable to expect that he would have
declared at the negotiating table “the Company refuses to make
an economic proposal.”64 Since Adelstein would not place an
economic proposal on the table, the Union, if it wanted to con-
tinue to avoid hindering the possibility of settlement, could do
little else but wait for that which Adelstein knew would never
occur.65 What occurred was planned by the Adelstein. Citing
the fact that the Respondent does have collective-bargaining
agreements at some of its facilities is not really probative be-
cause the markets may be different at those facilities as com-
pared to the Miami market. As was pointed out to the employ-

63 Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). It was
not indicated on the record herein that the petition, which was allegedly
delivered during the night by some unknown person or persons to
Grana’s office, was also filed with the Board as a petition for decertifi-
cation. As noted above, the withdrawal of recognition by one of the
Respondent’s attorneys occurred before the signatures on the petition
were authenticated. And at the trial herein the Respondent did not call
even one person who was conceded to be an employee to authenticate
his or her signature on the petition, and explain what they did or did not
read, and what, if anything, they were told about the document before
they signed it. The one employee the Respondent did call as a witness
testified on cross-examination over the objection of Respondent’s
counsel that no one approached her about the Union in April 2001; that
no one approached her with a piece of paper to sign regarding the Un-
ion; that she never signed a piece of paper; that she did not recall any-
one approaching her in 2001 about the Union and asking her to sign
anything; and that she did not remember signing a piece of paper with
lines on it. If she did not sign the disaffection petition, then it would
appear that what purports to be her signature is a forgery.
64 While GC Exh. 56 indicates that it was printed “6/10/2002,” Adel-
stein did not testify that the pertinent portion of this web site, which is
updated periodically according to his testimony, was not in existence
on January 30, 2001.
65 As noted above, Balash testified that he withdrew the March 29,
2001 charge in the hope of reaching a settlement on May 3, 2001.
FLYING FOODS 145
ees by Bergos, the Miami operation had already been sold more
than once. It appears that the Miami market is a tough market
and, as indicated in the web site of Adelstein’s firm, Adelstein
was and is advising the Respondent “on how to preserve its
non-union status in an industry where all competitors have been
organized.” (GC Exh. 56.) The Respondent violated Section
8(a)(1) of the Act as alleged in paragraph 7 of the consolidated
complaint.66
Paragraph 8 of the consolidated complaint alleges that on or
about February 14 and March 19 and 20, 2001, and on another
date in or around late March/early April 2001, which is not
more specifically known by the General Counsel, Respondent,
through antiunion videos shown at meetings at Respondent’s
facility, solicited employees to decertify the Union. Counsel for
the General Counsel on brief contends that a purpose of the
meetings with the newly hired employees was to solicit support
to decertify the Union through the presentation of antiunion
videos. The Respondent on brief argues that as found by the
administrative law judge, and adopted by the Board, in Sodexho
Marriott Services, 335 NLRB 538 (2001), the video “Little
Card, Big Trouble” is legitimate campaign propaganda and
does not violate the Act;67 that neither Noguera nor Hector
Fernandez testified that the antiunion video contained any al-
leged threats or promises regarding the Union; that Treto’s
testimony about what Gin allegedly said about a union on a
videotape does not establish a violation of Section 8(a)(1) as
such statements are the kind of isolated statements which are
devoid of any coercive intent; that any alleged unlawful pur-
pose such as solicitation of decertification was negated by the
fact that “Little Card, Big Trouble” was shown to new employ-
ees to educate them regarding their right to join or not join the
Union; that many of the employees being hired by Respondent
at the time formerly worked for companies where they were
required to join the union; that Respondent had the right to tell
employees that they did not have to join the Union, United
Technologies Corp., 274 NLRB 609 (1985);68 and that contrary

66 The language in par. 7 of the consolidated complaint, viz, “on or
about” is sufficient to cover the fact that the negotiation session, where
the last of the noneconomic proposals were approved, occurred on
January 31, 2001.
67 Sodexho Marriott Services, supra, can be distinguished in that
there the video “Little Card, Big Trouble” was shown during the course
of the 1998 trial. Here the version of the “Little Card, Big Trouble”
video shown to employees was not shown during the course of our trial.
Indeed even though she subpoenaed it, counsel for the General Counsel
was unable to get a copy of the Spanish version. Without the Spanish
version, we do not know for sure exactly what was said and done in this
video. Also that case involves an organizing drive. Here, the Union had
been certified and the antiunion video was shown during the certifica-
tion year. And finally while the judge found in Sodexho Marriott Ser-
vices, supra, that the video shown in his courtroom in 1998 was legiti-
mate campaign propaganda, as pointed out by GC Exh. 48, in July
2001, after it was alleged that a portion of the video “Little Card, Big
Trouble” violated the Act, Projections, Inc. revised it and entered into a
settlement with the Board’s Regional Office in Hartford, Connecticut.
68 United Technologies Corp., supra, can be distinguished in that
there, unlike here, (a) there was no suggestion that the employees
should abandon their union; (b) the Respondent’s communication oc-
curred in the context of lawful conduct at the bargaining table, and it
to Treto’s testimony that Gin appeared in a union video and
threatened the loss of business opportunities, the evidence es-
tablishes that Gin does not appear in “Little Card, Big Trouble”
nor does she make any statements about the Union during her
appearance in the “Welcome to Flying Food” video.
Obviously the Respondent is not on the same footing as a
company trying to convince its employees during an organizing
drive that they should not sign a union authorization card or
support a union. Here, the Union was certified on March 29,
2000, as the exclusive collective-bargaining representative of
the involved unit. As here pertinent, the majority status of a
certified union is conclusively presumed during the certification
year. It is admitted that the Respondent showed at least one
antiunion on more than one occasion before the certification
year was over.69 There is a conflict in the testimony of Burgos
and Grana, neither of whom is a credible witness, with respect
to whose idea it was to show the employees an antiunion
video.70 As noted above, Burgos testified that the Respondent’s
senior leadership group decided to show the original video from
Projections because the Respondent hired employees from Gate
Gourmet and Sky Chef, both of which operate under the Rail-
way Act under which the employees have no choice regarding
whether they would join or not join the union, and the Respon-
dent wanted to make sure that the former employees of Gate
Gourmet and Sky Chef understood that they had a choice when
they came to work for the Respondent. Grana testified that she
thought that the new employees should know about their
choices and she requested something from Heston that she
could show the employees about the Union. Was the message
on the antiunion video limited to explaining that employees had
a choice? The Respondent certainly does not take this position.
Was the antiunion video shown only to former Gate Gourmet
and Shy Chef employees? Burgos concedes that it was shown
to other new hires also. It appears that the message conveyed to
employees was not just that they had the right not to belong to
the Union but that it is a problem if you belong. Whatever the
message was on the version of the antiunion shown to employ-
ees it was strong enough to have Hector Enrique Fernandez
Rodriguez and another driver subsequently approach Sanchez
and tell him that “after seeing the video . . . [they] realized that
[by signing union authorization cards they] . . . had gotten into
a big problem and . . . [they] wanted to get out.” (Tr. 394 and
395.) When Sanchez was given the opportunity at the trial to

was therefore not undertaken as part of a strategy to frustrate the bar-
gaining process of otherwise avoid bargaining obligations under the
Act; and (c) there was no evidence that the Respondent in United Tech-
nologies Corp., supra, case sought to achieve the elimination of the
union or otherwise alter the bargaining relationship.
69 Grana testified that she conducted her orientation sessions in
March 2001.
70 The credibility of both will be discussed below. It is sufficient to
note at this point that, in my opinion, Grana knowingly lied under oath
about material facts, namely her role with respect to the disaffection
petition. Ironically, before calling her as a witness, the Respondent’s
attorneys knew that the Respondent had the burden of proof to show
that the Union had actually lost majority support. Yet the Respondent’s
attorneys did not call one employee witness to authenticate his or her
signature, and to testify about what he or she read or what he or she
may have been told before signing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD146
explain what on the video would make the drivers react this
way, Sanchez went blank, claiming that he could not recall,
other than it dealt with union authorization cards, what was on
the video. Sanchez was not a credible witness. This former
president of a Union Local in New York City knew exactly
what was going on. To play dumb shows that he placed the
Respondent’s interests, for whatever reason, above being can-
did. Such a witness cannot be treated as a credible witness. An
employer cannot encourage, prompt or solicit employees to
decertify a union, especially in the certification year, and then
claim the rewards of its conduct. Rohlik, Inc., 145 NLRB 1236
(1964) The Respondent did not have a legitimate purpose in
showing anti-union videos.71 The conduct of the Respondent
was calculated to discourage the continued union adherence of
the employees. When this conduct is considered in the light of
the conduct, treated below, of its agent Mazier, who—after the
antiunion video which solicited employees to decertify the
Union was shown to employees—solicited signatures on a dis-
affection petition in work areas when employees were working,
a finding is warranted that the Respondent violated Section
8(a)(1) of the Act by showing antiunion videos on or about the
dates specified in February, March, and April 2001.
Paragraph 9(a) of the consolidated complaint alleges that Re-
spondent, through Daysma Grana, at Respondent’s facility on
or about February 14, 2001, threatened employees with loss of
business opportunities due to their support for the Union.
Counsel for the General Counsel on brief contends that telling
employees that the Union would obstruct incoming business
from new customers constitutes a violation of Section 8(a)(1) of
the Act in that this conveys the impression of futility in select-
ing the Union as bargaining representative. The Respondent, on
brief, argues that even if Treto’s testimony is credited, the
statement cannot support a violation of the Act, as it was an
isolated remark which is devoid of any coercive intent. Grana is
not a credible witness. It appears that Treto was mistaken about
Noguera being at this meeting. Nonetheless, Treto’s testimony
is credited. As noted above, he testified that Sanchez and Grana
said the Union would obstruct the progress of contracts for new
business; that Sanchez said that the Union obstructs or stops the
incoming business that they could obtain with new companies,
and Grana said this also; and that Grana said that the Union
would prevent the Company from getting new business. As
pointed out by the Court in NLRB v. Gissel Packing Co., 395
U.S.575, 618 (1969):
an employer is free to communicate to his employees any of
his general views about unionism or any of his specific views
about a particular union, so long as the communications do
not contain a ‘threat of reprisal or force or promise of benefit.’
He may even make a prediction as to the precise effects he be-
lieves unionization will have on his company. In such a case,

71 One employee, Treto, testified that Gin also made antiunion
statements in a video. Gin did not testify at the trial so she does not
deny that she made antiunion statements on a video shown to employ-
ees. While the Respondent introduced R. Exh. 36, which is a transcript
of a video in which Gin, among others, appears and speaks, no credible
witness testified that this is the only video that Gin made which was
shown to employees.
however, the prediction must be carefully phrased on the basis
of objective fact to convey an employer’s belief as to demon-
strably probable consequences beyond his control. . . .
The involved prediction of Grana and Sanchez was not “care-
fully phrased on the basis of objective fact to convey an em-
ployer’s belief as to demonstrably probable consequences be-
yond his control.” The Respondent violated Section 8(a)(1) of
the Act as alleged in paragraph 9(a) of the consolidated com-
plaint.
Paragraph 9(b) of the consolidated complaint alleges that
Respondent, through Daysma Grana, at Respondent’s facility in
or around February, March, or April 2001, on a date not more
specifically known by the General Counsel, threatened to with-
hold wage increases due to employees’ support for the Union.
Counsel for the General Counsel contends on brief that Grana’s
statement to Treto, namely “if the Union is certified, there
won’t be a raise” implies that for as long as the Union is certi-
fied, the Respondent will not give a wage increase. The Re-
spondent on brief argues that Grana unequivocally denied that
she threatened employees that wages would be withheld if em-
ployees certified the Union. The Respondent cites the May
meetings where wage increases were explained to the employ-
ees. Treto testified to what Grana said to drivers who were in
the portal of the loading dock. Vidal testified that he and Grana
always met with the employees together to explain the wage
increases. There is no evidence that Vidal was present when
Grana and Sanchez spoke on this occasion. Grana did not spe-
cifically deny making this statement. Treto’s testimony regard-
ing Grana’s statement, which was not specifically and credibly
challenged by the Respondent at the trial herein, is credited. In
my opinion counsel for the General Counsel’s interpretation is
correct. The Respondent violated Section 8(a)(1) of the Act in
May 2001 by threatening to withhold wage increases due to
employees’ support for the Union.
Paragraph 9(c) of the consolidated complaint alleges that Re-
spondent, through Daysma Grana, at Respondent’s facility in or
around early May 2001, on a date not more specifically known
by the General Counsel, informed employees that they were
receiving wage increases as a reward for decertifying the Un-
ion. The Respondent on brief argues that transcript pages 1555
and 1557 show that while Grana was present in the May meet-
ings where wage increases were explained, she did not make
any statements about wages, and spoke only about benefits and
the formation of the EAR committee.
As noted above, Morales, as here pertinent, testified that he
along with all of the drivers from the transportation department
attended a meeting on May 6, 2001, with Largaespda and
Grana at which Grana told the employees that (a) they were in
the process of decertifying the Union, it no longer existed, and
there would not be any more negotiations; (b) the Company had
improved financially, it had more business, they were going to
give salary increases; and (c) they were able to give an increase
because the union issue was over.72 In his affidavit to the Board
(GC Exh. 35), Morales indicated as follows:

72 Morales did not testify that Burgos or Vidal were present at this
meeting.
FLYING FOODS 147
In that meeting they told us that there was no more union in
the kitchen because the employees had signed papers to throw
out the Union. They told us that for that reason, they had
given a raise to all the employees in the kitchen.
Largaespda did not testify at the trial herein so he did not
deny that Grana made these statements. Grana did not un-
equivocally, specifically deny making these statements at this
meeting. Additionally, Grana is not a credible witness. The
testimony of Morales is credited. While Morales did not spe-
cifically testify that Grana used the word “reward,” the test is
an objective test and this, in effect, is what Grana said. The
Respondent violated Section 8(a)(1) of the Act as alleged in
paragraph 9(c) of the consolidated complaint.
Paragraph 9(d) of the consolidated complaint alleges that
Respondent, through Daysma Grana, at Respondent’s facility
on or about May 7, 2001, and on other dates in or around early
May 2001 not more specifically known by the General Coun-
sel, informed employees that it was replacing the Union with an
“EAR” group to address employee grievances. Counsel for the
General Counsel on brief contends that the Respondent sought
to placate its bargaining unit employees by not only granting
promised wage increases but also by forming an EAR commit-
tee created solely for the purpose of replacing the Union; that
the record evidence reveals that during the deliberation process
over retroactive wage increases, the Respondent proposed that
this committee be reinstated for the purpose of addressing is-
sues raised by bargaining unit employees; and that the Vidal,
Grana, and Wilsher confirmed that the EAR committee was
established to perform some of the functions previously per-
formed by the Union before recognition was withdrawn. The
Respondent on brief argues that Grana did not make any state-
ments to employees which violated the Act.
As noted above, Morales, as here pertinent, testified that he
along with all of the drivers from the transportation department
attended a meeting on May 6, 2001, with Largaespda and
Grana at which Grana told the employees that (a) they were in
the process of decertifying the Union, it no longer existed, and
given this condition, there would not be any more negotiations;
(b) they were going to give salary increases; (c) since there was
no intermediary like the Union, the Company was proposing to
form a group, EAR, to be represented by an employee of each
department to deal with the different issues that would come up
either with respect to labor problems, wages, or any other prob-
lem; and (d) since decertification was in progress, the Company
needed to form a committee of employees so that they could
deal with the internal problems. Largaespda did not testify at
the trial herein so he did not deny that Grana made these state-
ments. Grana did not unequivocally, specifically deny making
these statements at this meeting. Additionally, Grana is not a
credible witness. The testimony of Morales is credited. He did
not testify that either Vidal or Burgos were present at this meet-
ing. While Morales did not testify that Grana specifically said
“replacing,” the test is an objective test, and this, in effect, is
what Grana said. The Respondent violated Section 8(a)(1) of
the Act on or about May 7, 2001, as alleged in paragraph 9(d)
of the consolidated complaint.
Paragraph 9(e) of the consolidated complaint alleges that Re-
spondent, through Daysma Grana, at Respondent’s facility on
or about July 25, 2001, threatened employees with discharge if
they contacted the Union or the Board about disciplinary issues.
This allegation refers to what Grana said to Hurtado during a
meeting she had with him in July 2001. First, Hurtado testified
that Grana said that she had to fire him for what he did whether
he was going to speak to the Union or not, or whether he made
allegations to the Labor Department. In my opinion this does
not equate to a threat to discharge if the employee contacts the
Union or the Board about the discipline. For the sake of argu-
ment, if one accepted Hurtado’s testimony at face value, what
Grana was saying was I am going to fire you, and whether you
go to the Union or the Board does not change that. Second, for
the reasons given below, Hurtado is not a credible witness. I do
not believe that the “Labor Department” was mentioned during
this meeting. As concluded above, Grana is not a credible wit-
ness. But Rosario was also present at this meeting. I credit his
testimony that neither he nor Grana threatened Hurtado with
termination if he went to the Union. This allegation of the com-
plaint will be dismissed.
Paragraph 10(a) of the consolidated complaint alleges that
Respondent, by Dario Mazier, at Respondent’s facility in or
around February, March or April 2001, on a date not more spe-
cifically known by the General Counsel, threatened employees
that Respondent would withhold wage increases from them due
to their support for the Union. Paragraph 4(b) of the complaint
alleges that Mazier has been an agent of Respondent within the
meaning of Section 2(13) of the Act. Counsel for the General
Counsel on brief contends that the credible record evidence
reveals that Mazier served as an agent of Respondent as he
circulated the disaffection petition among unit employees; that
Mazier engaged in this activity, notwithstanding the Respon-
dent’s no solicitation policy, during working hours on the work
floor in the presence of upper-level management; that this ac-
tivity came on the heels of his presence at the showing of the
videotapes to the newly hired employees; that Mazier was re-
warded for assisting in the circulation of the disaffection peti-
tion when he was given a retroactive pay increase on June 22,
2001; and that, as testified to by Adelstein, the Respondent
accepted responsibility for a legal fee of over $2341 for Mazier.
Counsel for the General Counsel points out that while she
called Mazier on the first day of the trial herein to testify, he
was not called by the Respondent to respond to the evidence of
employee witnesses regarding his circulation of the disaffection
petition. And she requests that an adverse inference be made
that had Mazier testified about it, his testimony would have
supported that of Morales, Solano, Noguera, Treto, Rodriguez,
and Hurtado. The Respondent on brief argues that “Mazier,
during examination by the General Counsel, vehemently denied
soliciting signatures or engaging in any other conduct for or
against the Union in 2001 (Tr. 76);73 that while counsel for the
General Counsel established that Mazier has a supervisory title
and salaried status, she introduced no evidence that Mazier has
acted as a conduit for management’s instructions or messages,
or that he is perceived as a management’s right-hand man, or
that he gives orders to any employee or reprimands employees,
schedules overtime, signs timecards, or grants time off, or that

73 R. Br. 18.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD148
he uses a company truck, or attends management meetings; that
the Company admits that it would be liable for Mazier’s alleged
conduct and/or statements if he has been ‘held out as a conduit
for transmitting information from management to other em-
ployees,’ Debber Electric, 313 NLRB 1094, 1095 fn. 6 (1994);
and that since Counsel for the General Counsel has not estab-
lished that Mazier is an agent, she cannot establish that the
Company violated the Act by any of Mazier’s alleged actions.
With respect to the Respondent’s argument on brief that
“Mazier, during examination by the General Counsel, vehe-
mently denied soliciting signatures or engaging in any other
conduct for or against the Union in 2001 (Tr.76),” it is noted
that on the cited page of the transcript Mazier gave the follow-
ing testimony:
Q. BY MS. PLASS: The question is, what are your sen-
timents; do you support the Union?
. . . .
THE WITNESS: I do not have anything against it, nor
favor them.
Q. BY MS. PLASS: Did you support the Union in the
year 2001?
A. It would be the same feeling for whatever year.
Q. Which is what?
This is all the testimony that Mazier gave on page 76 of the
transcript herein. On page 77 of the transcript Mazier gave the
following testimony:
A. I do not have any interest. I am not in favor nor
against it.
Q. Mr. Mazier, did you engage in any activities in the
year 2001 regarding the Union?
A. No.
By no stretch of the imagination would what appears on page
76 of the transcript amount to a vehement denial of soliciting
signatures or engaging in any other conduct for or against the
Union in 2001. Even when one considers page 77 of the tran-
script, it still does not amount to a vehement denial of soliciting
signatures on a disaffection petition or engaging in other con-
duct against the Union in 2001. Mazier was called as a witness
the first day of the trial herein by counsel for the General Coun-
sel. His testimony as General Counsel’s witness is set forth at
pages 64 to 81 of the transcript herein. This trial, as noted
above, lasted 14 days. There are 1847 pages of transcript. As
noted by counsel for the General Counsel, the Respondent did
not call Mazier as a witness to respond to all of the evidence
about his activities.74 In view of this, his testimony, that he did
not engage in any activities in the year 2001 regarding the Un-
ion, when called by counsel for the General Counsel serves
only to demonstrate his willingness to be untruthful.

74 One of the Respondent’s attorneys asked Mazier only four ques-
tions, all dealing solely with the work he performs, when he was called
by counsel for the General Counsel. The attorney then indicated as
follows:
MR. SECARAS: Your Honor, I do not have any further ques-
tions of Mr. Mazier at this time, but we may call him as part of
our case in chief as well.
In Pan-Oston Co., 336 NLRB 305, 305–306 (2001), the
Board indicated as follows:
The Board applies the common law principles of
agency in determining whether an employee is acting with
apparent authority on behalf of the employer when that
employee makes a particular statement or takes a particu-
lar action. Cooper Industries, 328 NLRB 145 (1999);
Hausner Hard Chrome of KY, Inc., 326 NLRB at 428.
Apparent authority results from a manifestation by the
principal to a third party that creates a reasonable belief
that the principal has authorized the alleged agent to per-
form the acts in question. Southern Bag Corp., 315 NLRB
725 (1994) (and cases cited therein). Either the principal
must intend to cause the third person to believe the agent
is authorized to act for him, or the principal should realize
that its conduct is likely to create such a belief. Service
Employees Local 87 (West Bay Maintenance), 291 NLRB
82 (1988) (citing Restatement 2d. Agency, . . . [subsec-
tion] 27 (1958, Comment a)).
The Board’s test for determining whether an employee
is an agent of the employer is whether, under all of the cir-
cumstances, employees would reasonably believe that the
employee in question was reflecting company policy and
speaking and acting for management. Waterbed World,
286 NLRB at 426–427 (and cases cited therein). The
Board considers the position and duties of the employee in
addition to the context in which the behavior occurred.
Jules v. Lane, 262 NLRB 118, 119 (1982).
The Board may find agency where the type of conduct
that is alleged to be unlawful is related to the duties of the
employee. For example, in Hausner Hard-Chrome of KY,
Inc., supra, the Board found that the heads of various de-
partments who regularly communicated management’s
production priorities to employees acted as agents of the
employer when they told employees that the employer
would likely shut down the plant if employees voted in fa-
vor of a union.
In contrast, the Board may decline to find agency
where an employee acts outside the scope of his or her
usual duties. Thus, in Waterbed World, supra, the Board
found that an employee who interrogated other employees
and threatened them with discharge did not act as an agent
of the employer because the employer had never held out
the employee as being privy to management decisions or
as speaking on its behalf.
Although not dispositive, the Board will consider
whether the statements or actions of an alleged employee
agent were consistent with statements or actions of the
employer. The board has found that such consistencies
support a finding of apparent authority. For example, in
Hausner Hard-Chrome, discussed above, the Board found
that the “manifestation of apparent authority was strength-
ened” because the statements made by the department
heads were consistent with statements made by manage-
ment. 326 NLRB at 428. See also Great American Prod-
ucts, 312 NLRB 962 (1993).
We emphasize that an employee may be an agent of
the employer for one purpose but not another. For exam-
FLYING FOODS 149
ple, in Cooper Industries, supra, the Board found that em-
ployees could reasonably believe that employee facilita-
tors who made various coercive statements acted as agents
of the employer because the employer had held them out
as primary conduits for communication with management.
However, the Board found that employees would not rea-
sonably believe that a facilitator who attended a union
meeting acted as an agent of the employer for purposes of
surveillance where the union representative had ques-
tioned the facilitator, accepted his explanation that he was
there as a regular worker, and permitted him to remain.
328 NLRB 145, 146.
Finally it is the burden of the party who asserts that an
individual has acted with apparent authority to establish
the agency relationship. Millard Processing Services, 304
NLRB 770, 771 (1991), enfd. 2 F.3d 258 (8th Cir. 1993),
cert. denied 510 U.S. 1092 (1994). As discussed above,
the party who had the burden to prove agency must estab-
lish an agency relationship with regard to the specific con-
duct that is alleged to be unlawful.
Applying these principals here, I find that counsel for the
General Counsel, who bears the burden of proof, has estab-
lished that the Respondent did take those actions from which
employees could reasonably conclude that Mazier was acting
on the Respondent’s behalf when he engaged in the specific
conduct found to be unlawful below. Mazier conveyed an anti-
union message at least one orientation meeting. Since mainte-
nance employees were specifically excluded from the unit, even
if he was only an employee, he would not have had any interest
in opposing the union since it would not have had any effect on
him as an employee. When Mazier spoke to the employees
during orientation he was speaking as part of a group of com-
pany representatives. He was not speaking as an employee. He
espoused the company position, he—as conceded by the Re-
spondent on brief—has a supervisory title and he is salaried as
opposed to receiving an hourly wage. Additionally, Mazier,
unlike production employees, does not punch a timeclock, he
cannot receive overtime pay, and he wears a badge that reads
“Maintenance Manager.” Since Mazier was not called by the
Respondent to specifically deny the testimony of Morales, So-
lano, Noguera, Rodriguez, and Treto, the testimony of these
witnesses is credited. Hurtado is not a credible witness. His
testimony regarding Mazier is not credited even though Mazier
did not specifically deny it. Consequently, in addition to all of
the above, we have Mazier approaching employees in work
areas while they are working, soliciting signatures on the disaf-
fection petition for days. While drivers, coordinators and some
supervisors need badges for the airport, production workers do
not. Mazier did not have any excuse to be approaching produc-
tion workers in work areas while they were working to get them
to sign something. The fact that he was able to do this in and of
itself had to convey the understanding to employees that he was
acting on behalf of management. While, in my opinion, counsel
for the General Counsel has established that Mazier was acting
as an agent of the Respondent in soliciting signatures on the
disaffection petition, she did not introduce any evidence dem-
onstrating that Mazier threatened employees that the Respon-
dent would withhold wage increases from them due to their
support for the Union. This portion of the complaint will be
dismissed.
Paragraph 10(b) of the consolidated complaint alleges that
Respondent, by Dario Mazier, at Respondent’s facility on or
about April 13, 2001, and in or around mid-April 2001, on
dates not more specifically known by the General Counsel,
solicited employee support of a petition to decertify the Union.
As indicated above, counsel for the General Counsel on brief
contends that Mazier was acting as an agent of the Respondent
when he solicited signatures on the disaffection petition. Also,
as indicated above, the Respondent on brief argues that Mazier
is not an agent of the Respondent and he denies engaging in
any activities in 2001 regarding the Union. Mazier was not a
credible witness. The fact that an agent of the Respondent,
Mazier, was soliciting signatures on a disaffection petition had
to have a coercive effect on employees. While some of the
more experienced employees refused to sign Mazier’s disaffec-
tion petition, they did so with the understanding that if there
was any question as to whether they supported the Union up to
that point in time, management now knew exactly where they
stood when they refused to sign the petition. With its agent
Mazier soliciting signatures on a disaffection petition, man-
agement was determining who supported the Union and who
supported the Company. The Respondent violated Section
8(a)(1) of the Act as alleged in paragraph 10(b) of the consoli-
dated complaint.
Paragraph 10(c) of the consolidated complaint alleges that
Respondent, by Dario Mazier, at Respondent’s facility on or
about April 13, 2001, and on another date in or around April
2001 not more specifically known by the General Counsel,
promised employees wage increases and other benefits if they
decertified the Union. The only witness testifying in support of
this allegation is Hurtado. I do not find Hurtado to be a credible
witness. Consequently, notwithstanding the fact that Mazier did
not specifically deny Hurtado’s testimony, this allegation of the
complaint will be dismissed.
Paragraph 11(a) of the consolidated complaint alleges that
Respondent, by Angel Sanchez, at Respondent’s facility on or
about February 14, 2001, threatened employees with loss of
business opportunities due to their support for the Union.
Counsel for the General Counsel on brief contends that Sanchez
was acting on behalf of the Respondent when conducting orien-
tation training; that Sanchez possess the requisite 2(11) super-
visory indicia; that according to Wilshire, Sanchez was a sala-
ried employee identified on the payroll register as management
personnel in payroll period 9 for the pay period ending May 4,
2001; that Vidal testified that Sanchez and other managers re-
port directly to him; that Grana testified that Sanchez has an
office where he maintains all videotapes pertaining to drivers as
well as airport certifications for drivers; that as Treto testified,
Sanchez has the authority to assign flights to the transportation
employees, including himself, and Sanchez did tell him and
other employees that if they did not follow company policies
and procedures they will be dismissed; that Sanchez received a
$1330 bonus after showing the antiunion videos to the new
drivers who were “brainwashed so that Respondent could attain
a majority of employees who were too frightened to support the
Union” (counsel for GC Br. 44); that Sanchez’ testimony also
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD150
lacks credibility due to the lack of candor exhibited when re-
sponding to certain questions about the antiunion videotape,
especially when he claimed to have no recollection of the con-
tent of the antiunion videotape when asked what on it would
cause employees who viewed it to approach him and tell him
that they regretted signing union authorization cards; and that
Sanchez made an unlawful statement to employees when he
emphasized that the Union would only accomplish obstructing
incoming business from new customers. The Respondent, on
brief argues that although Sanchez was a salaried employee, his
job duties were just like those of other hourly maintenance
mechanics in 2001; that while Hector Fernandez testified that
he believed Sanchez to be a supervisor, he never observed San-
chez exercise any supervisory authority, and he never witnessed
Sanchez discipline an employee; that while Treto testified that
Sanchez is a supervisor who tells the drivers to take a certain
truck for a certain flight, which employee is responsible for a
certain flight is decided by the schedule set up by Nunez and
Largespada; that Treto testified that Toledo is in charge of op-
erations when Largespada is out; that the General Counsel
failed to establish that Sanchez engaged in any activities evi-
dencing supervisory authority; that while General Counsel’s
Exhibit 11 shows that Sanchez was involved in the issuance of
a verbal warning for one employee on one occasion in May
2001, the evidence demonstrates that Sanchez did not exercise
any independent judgment in the issuance of this warning; that
the one time issuance of a verbal reprimand is insufficient to
establish supervisory status under the Act, Vanport Sand &
Gravel, Inc., 267 NLRB 844 (1983); and that Sanchez was
excluded from the bargaining unit because he holds the position
of mechanic, a classification that was specifically excluded
from the unit by agreement of the parties.
It has not been demonstrated that Sanchez exercised inde-
pendent discretion on any regular basis or to any significant
degree. The assignment of drivers is based on a schedule
worked up by Nunez and Largespada. Sanchez does not grant
time off. When Largespada is absent, Toledo is in charge. San-
chez has none of the other indicia of supervisory responsibility
set forth in Section 2(11) of the Act in that he does not hire,
transfer, suspend, lay off, recall, promote, discharge, reward, or
discipline.75 But the complaint also alleges that Sanchez acted
as an agent of the Respondent. In applying the principals set
forth above, in my opinion counsel for the General Counsel has
demonstrated that the Respondent has taken action from which
employees could reasonably conclude that Sanchez was acting
on Respondent’s behalf when he engaged in the specific con-
duct alleged in this paragraph to be unlawful. Sanchez con-
veyed an antiunion message at orientation meetings. The Re-
spondent argues that mechanics were excluded from the unit
apparently since they are considered maintenance employees.
Since maintenance employees were specifically excluded from
the unit, if Sanchez was only an employee he would not have
had a personal interest in opposing the union since it would not

75 Sanchez did not exercise independent judgment in the one in-
stance where he gave an employee a verbal warning since he was
merely acting as a conduit between management and the involved
employee. GC Exh. 11.
have had any effect on him as an employee. When Sanchez
spoke to the employees he was speaking either as part of a
group of company representatives or he was acting as a conduit
between management and the employees. Sanchez was not
speaking as an employee. He espoused the company position,
and he—as conceded by the Respondent on brief—is salaried
as opposed to receiving an hourly wage. Additionally, he does
not punch a timeclock and he has an office. Sanchez is not a
credible witness. The testimony of Treto is credited. Sanchez
made the same statement as Grana, which is treated in para-
graph 9(a) above. And for the reason specified above, that
statement violates the Act. The Respondent violated Section
8(a)(1) of the Act as specified in paragraph 11(a) of the con-
solidated complaint.
Paragraph 11(b) of the consolidated complaint alleges that
Respondent, by Angel Sanchez, at Respondent’s facility in or
around February, March, or April 2001, on a date not more
specifically known by the General Counsel, threatened to with-
hold wage increases due to employees’ support for the Union.
Treto’s testimony is credited. Sanchez is not a credible witness.
As noted in 9(b) above, in my opinion counsel for the General
Counsel’s interpretation is correct. The Respondent violated
Section 8(a)(1) of the Act in May 2001 by threatening, as here
pertinent, through Sanchez, to withhold wage increases due to
employees’ support for the Union.
Paragraph 12 of the consolidated complaint alleges that in or
around late March 2001, on a date not more specifically known
by the General Counsel, Respondent, by Victor Vidal, at Re-
spondent’s facility, told employees that the Union was decerti-
fied and no longer represented them. Counsel for the General
Counsel on brief contends that informing employees of the
withdrawal of recognition and that the Union is no longer their
representative constitutes violations of Section 8(a)(1) of the
Act. The Respondent on brief argues as follows: “Noguera
testified that sometime around late March [2001], Vidal ap-
proached him and three other employees on the dock while they
were loading trucks for the Northwest account and told them
that the Union had been decertified (Tr. 247).” (R. Br. 20.) No
such testimony was given on transcript page 247. And on page
248 of the transcript where Noguera testifies about this conver-
sation he does not specify that he was loading trucks for the
Northwest account. The Northwest account did not come up
until cross-examination by Zdravecky. And on redirect, No-
guera testified that at the time of this statement he was loading
trucks for Jamaican Airline and Falcon Airline. The Respon-
dent argues on brief, signed by Zdravecky, that “[a]s this con-
versation likely occurred after the withdrawal of recognition in
April 2001, it could not have been unlawful and could not have
solicited employees to decertify the Union when the Union no
longer represented the employees at that time.” (R. Br. 20.) As
noted above, Vidal testified that he did not tell Noguera or any
other employee in March 2001 that the Union had been decerti-
fied, or tell employees this in the first month of his employment
(February 16 to March 16, 2001), or tell employees this prior to
the meetings where he and Grana told employees that the Com-
pany no longer recognized the Union. For decertification to
occur, a valid petition must be filed with the Board. No Board
order decertifying the Union was made a matter of record
FLYING FOODS 151
herein. Indeed, no indication was made on the record that a
decertification petition had been filed with the Board in this
matter. In my opinion Noguera was mistaken on the timing, and
Vidal said something about withdrawal of recognition after
April 18, 2001.76 The Respondent on brief argues that Vidal
“categorically . . . denied that he ever used the word ‘decertifi-
cation’ in any meetings with employees, including meetings
held after the Company’s lawful withdrawal of recognition (Tr.
904)”; and that even if Noguera’s testimony is credited, Vidal’s
statement does not violate the Act as it cannot be construed as
tending to coerce employees in the exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act. When the
statement was made the Union, notwithstanding the Respon-
dent’s machinations, continued to be, as a matter of law, the
certified collective-bargaining representative of the employees
in the unit. For the general manager of the Respondent to be
telling unit employees to their face that the Union could no
longer represent them interfered with and coerced employees in
the exercise of the rights guaranteed in Section 7 of the Act.
The Respondent was not only unlawfully withdrawing recogni-
tion but it, in effect, was telling employees in person that, con-
trary to Section 7 of the Act, unit employees did not have the
right to self-organization, to form, join or assist a labor organi-
zation, or to bargain collectively through a representative of
their own choosing. The Respondent by informing employees
of the unlawful withdrawal of recognition and saying to em-
ployees that the Union was no longer their representative vio-
lated Section 8(a)(1) of the Act.
Paragraph 13 of the consolidated complaint alleges that on or
about March 28, 2001, Respondent, by Monica Wilshire, at a
negotiation session, interrogated employees about their union
membership, activities and sympathies. Counsel for the General
Counsel on brief contends that it is not contested that Wilsher
questioned Solano about having a change of heart; that this
constitutes unlawful interrogation inasmuch as Wilsher, an
upper level manager, questioned Solano about the reason for
his change of sentiment and then implicitly threatened to fire
him; and that, therefore, the interrogation by Wilsher violated
Section 8(a)(1) of the Act. The Respondent on brief argues that
no evidence was introduced to establish, as alleged in the com-
plaint, that Wilshire, at a negotiation session, interrogated em-
ployees about their union membership, activities and sympa-
thies; that since the conversation between Wilsher and Solano
occurred in the hallway, he was free to walk away; that under
the totality of circumstances test, the interrogation would rea-
sonably tend to restrain, coerce, or interfere with rights guaran-
teed by the Act if it was accompanied by a specific threat or
promise, Emery Worldwide, 309 NLRB 185 (1992); that it is
not clear that Wilsher made any specific threats regarding So-
lano’s union activity; that counsel for the General Counsel
failed to establish that the tone, duration or setting of Wilsher’s

76 To the extent that it might be argued that Vidal’s denial is not be-
ing credited, it should be noted that there is a difference in the timing
and the exact wording. Also, as pointed out by Chief Judge Hand in
NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (1950):
It is no reason for refusing to accept everything that a witness says,
because you do not believe all of it; nothing is more common in all
kinds of judicial decisions than to believe some and not all.
inquiry was coercive; that Wilsher’s inquiry was not repeated;
that since Solano attended a bargaining session on the Union’s
behalf, he made it known that he was a union supporter, and
since he was a known union supporter, the likelihood of the
coercive effect of the questioning was lessened; and that based
on the totality of these circumstances, the General Counsel
cannot establish that Wilsher’s conduct violated Section 8(a)(1)
of the Act.
As noted above, Solano testified that while at work, Wilsher
(a) asked him why, after helping the Company, he was now
against the Company and he was helping the Union; (b) said in
the presence of other dishwashers that if the Company fired
him, he would see if the Union would help him find another
job; and (c) was very upset and she said in a strong tone of
voice that he was an ungrateful person. Solano impressed me as
being a credible witness. Wilsher was less than candid about
Carlos Respuro. I credit the testimony of Solano with respect to
this conversation. The Board, in Emery Worldwide, supra at
186, concluded as follows:
Interrogation of employees is not unlawful per se. In
determining whether or not an interrogation violates Sec-
tion 8(a)(1) of the Act, the Board looks at whether under
all the circumstances the interrogation reasonably tends to
interfere with, restrain, or coerce employees in the exer-
cise of their Section 7 rights. Rossmore House, 269 NLRB
1176 (1984); Sunnyvale Medical Clinic, 277 NLRB 1217
(1985).
In my opinion Wilsher’s questioning of Solano violated Sec-
tion 8(a)(1) of the Act in that it was coercive in nature. The
conversation did not occur in a context free of other unfair la-
bor practices. As set forth herein there were numerous unfair
labor practices. The nature of the questioning was threatening.
In a strong tone of voice in front of other employees Wilsher
told Solano that he was an ungrateful person and if the Com-
pany fired him, he would see if the Union would help him find
another job. This conversation was not casual or amicable, and
it was accompanied by a coercive statement made by a high-
level manager, Wilsher, who is the controller of the Respondent
in Miami. The fact that Solano had just made his support for the
Union known by serving on the bargaining committee would
not lessen the coercive nature of Wilsher’s inquiry. After this
conversation, Solano had to wonder if he was going to be fired.
The Respondent violated Section 8(a)(1) of the Act by Wil-
sher’s unlawful interrogation of Solano.
Paragraph 14(a) of the consolidated complaint alleges that on
or about April 18, 2001, Respondent withdrew recognition of
the Union as the exclusive collective-bargaining representative
of the unit. Counsel for the General Counsel on brief contends
that the Respondent directed its agents to solicit employee sup-
port for a petition to decertify the Union; that the Respondent
acted at its peril by hastily processing a disaffection petition
that was secured with the assistance from designated agents;
that the Respondent unlawfully withdrew recognition from the
Union because of its reliance on the disaffection petition that is
laden with defects; that the record evidence reveals that Grana
erroneously counted a number of individuals who should not
have been counted in determining the number of unit members
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD152
who signed the disaffection petition; that many documents
produced pursuant to subpoena that Grana testified were relied
on to verify the signatures on the disaffection petition are dated
after recognition was withdrawn; that no attempt was made by
the Respondent to correct this situation; that Grana could not
locate any documentation in the documents turned over to
counsel for the General Counsel to verify some of signatures;
that the general standard for determining the legitimacy of a
withdrawal of recognition requires an employer who withdraws
recognition from an incumbent union to prove that the union
had, in fact, lost majority status at the time of the withdrawal,
Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001); that
any determination as to the validity of the signatures on the
disaffection petition should be guided by the principles set forth
in NLRB v. Gissel Packing Co, 395 U.S. 575 (1969), because in
these circumstances, establishing proof of actual loss of major-
ity support is akin to situations where a union seeks to prove its
majority statue; that actual loss requires a showing of an actual
numerical loss of a union’s majority support at the time of
withdrawing recognition; that it is obvious that the process of
authenticating signatures extended over a period of several
months inasmuch as Respondent relied on business records
dated after recognition was withdrawn for specified individuals;
that on April 18 there were 146 employees in the unit, there
were 96 names on the disaffection petition (including a total of
24 on two pages which have no heading), and a total of at least
50 names on the petition should be disregarded for issues re-
garding either eligibility, authentication, language, and duplica-
tion; that the Respondent is required to present untainted, valid
evidence that a numerical majority of unit employees no longer
desires representation by the Union; and that here the evidence
reveals that Respondent has failed to meet its burden.
The Respondent at page 28 of its brief argues as follows:
On or about April 17, the Company received a disaf-
fection petition signed by the majority of bargaining unit
employees (Tr.1219–1220; R. Exh. 38). AFTER verifying
the signatures on that petition and confirming that it was
supported by a majority of bargaining unit employees, the
Company lawfully withdrew recognition from the Union
on April 18 [Tr. 1220–1221: GC Exh. 26]. [Emphasis
added.]
At pages 36 and 37 of its brief, the Respondent further ar-
gues as follows:
Next, Grana turned to the task of verifying signatures.
She went to each employees’ personnel file and compared
the signature on the petition to a signature in the employ-
ees[’] personnel file [Tr. 1651, 1656–1657]. . . .
AFTER confirming that the 85 remaining signatures on
the petition were authentic, she [Grana] prepared a cover-
sheet [sic] with her numerical analysis and faxed that,
along with the six pages of the petition containing signa-
tures, to Zdravecky [Tr. 1522, 1529–1532, 1534; R. Exh.
39]. [Emphasis added.]
At pages 54 of its brief, the Respondent further argues as fol-
lows:
Thus, although the Board recently instructed in Levitz
. . ., 333 NLRB [717] (2001), that the burden rests with the
employer to demonstrate that at the time of a withdrawal
of recognition a majority of bargaining unit employees did
not desire to be represented by the incumbent labor or-
ganization, the General Counsel must make this averment
specifically in the complaint and present some evidence
that the employer’s contention of the union’s loss of ma-
jority support lacks credence. Otherwise, the General
Counsel cannot even proceed to the question of taint. Bun-
tiing Bearings Corp., 2002 NLRB LEXIS 268 (ALJ Am-
chan, July 5, 2002) relying on Levitz . . ., supra.
At pages 55 and 56 of its brief, the Respondent further ar-
gues as follows:
Furthermore, NLRB General Counsel, Arthur F. Rosenfeld,
issued GC Memorandum 02-01 on October 21, 2001 to pro-
vide “guidance on how Regions should investigate” charges
alleging unlawful withdrawal of recognition in light of Levitz
. . . . Therein, Regions are advised that “[a]n employer sus-
tains its initial burden of proof of establishing ‘actual loss’ if it
presents untainted, valid evidence, such as a petition, that es-
tablishes that a numerical majority of unit employees no
longer desires representation from the incumbent union.” [GC
Memorandum 02-01, p. 2.]
The portion of the memorandum, which was actually issued on
October 22, 2001, quoted above by the Respondent reads as
follows:
An employer sustains its initial burden of proof of establish-
ing ‘actual loss’ if it presents untainted valid evidence, such as
a petition, that establishes that a numerical majority of unit
employees no longer desires representation from the incum-
bent union.13
_________________
13. In order to be valid, such a petition must contain the signa-
tures of a majority of employees employed in the unit at the time
of the withdrawal of recognition, and the employer must demon-
strate that those signatures are facially authentic, usually by com-
paring them with employee signatures contained in the em-
ployer’s business records or by witness authentication. See, e.g.,
NLRB Casehandling Manual (Part One) ULP, Sec. 10058.1
Understandably the Respondent left out this revealing footnote
from its quotation and Zdravecky did not indicate “[Footnote
omitted.]” which is the accepted practice in such a situation. It
is noted that Memorandum GC 02-01, which the Respondent
cites, was issued almost 5 months before the commencement of
the trial herein.77 Indeed, the Respondent cites “NLRB General

77 As noted above, the GC Memorandum refers to the Board’s Case-
handling Manual. The section cited refers to using union authorization
cards to prove that a majority of the employees supported a union, the
converse of the situation at hand. In his memorandum, General Counsel
indicated that the method used to evaluate the authenticity of signatures
would parallel the methods used to evaluate the authenticity of union
authorization cards when seeking a NLRB v. Gissel Packing Co, 395
U.S. 575 (1969), remedy. Sec. 10058 of the above-described Casehan-
dling Manual reads as follows:
FLYING FOODS 153
Counsel Memorandum 02-01, p. 3 (October 22, 2001) on page
6 of its March 9, 2002 “EMPLOYER’S RESPONSE TO
PETITIONER’S PETITION TO REVOKE THE SUBPOENA
DUCES TECUM,” which was filed with the Board’s Division
of Judges in Atlanta, Georgia, on March 11, 2002.78
And at page 87 of its brief the Respondent further argues as
follows:
The undisputed evidence further demonstrates that,
prior to the hearing [in other words over a year after attor-
ney Zdravecky withdrew recognition] Wilsher confirmed
Grana’s conclusion by using Payroll Register No. 9, the
payroll register that actually covered April 18, but which
was unavailable to Grana at the time of her calculation,
and confirmed that there were 164 active bargaining unit
employees as of April 18, and that 84 bargaining unit em-
ployees had signed the petition.73
__________________
73 The fact that Wilsher performed this analysis after the
Company’s withdrawal of recognition is inconsequential under
Levitz . . . . Rather, Levitz . . . merely states that an employer must
establish objective evidence of a desire of a majority of the bar-
gaining unit employees on the date the company withdrew recog-
nition from the union to proceed with that withdrawal. The fact
that the Company confirmed that it had such support after the
withdrawal of recognition is not fatal to its position as long as it
has demonstrated an actual numerical majority.
Forgetting for the moment the almost total lack of evidence
regarding what any of the signers read or did not read on the
petition, or what they were or were not told about the purpose
of the petition before they signed it, has the Respondent proven,
as it alleges above, that “84 bargaining unit employees had
signed the petition?” Although the burden of proof is on the
Respondent with regard to showing that the disaffection peti-
tion was actually signed by bargaining unit members, the Re-

Authorization Cards: In all proceedings before the Board,
only evidence that the General Counsel has reason to believe is
true and authentic is offered.
It is mandatory upon the Regions to establish the authenticity
of authorization cards before issuance of complaint. . . .
And Sec. 10058.1 reads as follows:
Investigating Authenticity: The means of carrying the burden
of proving the authenticity of authorization cards will vary from
case to case. In certain cases it may be necessary to have signers
authenticate their cards as to execution and purpose, while in
other situations the credited testimony of the solicitor or witnesses
will suffice. Where, despite diligent effort the Region cannot lo-
cate or make available card signers or qualified witnesses, it may
be necessary to use expert testimony to establish the validity of
the cards. Whatever the method, it is incumbent on the Region in
every case to make whatever investigation is reasonably required
to insure the validity of the cards that it intends to submit as evi-
dence in support of the General Counsel’s case.
The Casehandling Manual is in the public domain. All the Respon-
dent’s attorneys had to do was to reverse roles. In other words, the
Respondent’s attorneys should have done what the General Counsel
would do in a Gissel, supra, situation, which is explained in the next
preceding paragraph. The General Counsel does not have the burden of
proof regarding the disaffection petition.
78 The pleading is hereby received as ALJ Exh. 1 and it will be
placed in the record with the formal papers.
spondent itself never made this preliminary showing either with
witnesses or documents.79 The Respondent did not call even
one of the signers to authenticate his or her signature. As noted
above, the one employee witness the Respondent did call for
another purpose, Damaris Fernandez, testified on cross-
examination by counsel for the General Counsel—over the
objection of Respondent’s counsel, Zdravecky—that no one
approached her about the Union in April 2001; that no one
approached her with a piece of paper to sign regarding the Un-
ion; that she never signed a piece of paper; that she did not
recall anyone approaching her in 2001 about the Union and
asking her to sign anything; and that she did not remember
signing a piece of paper with lines on it. Notwithstanding being
faced with evidence during its case in chief that at least one of
the signatures on the disaffection petition, Demaris Fernandez’,
was possibly a forgery, the Respondent still did not call any of
the employees to authenticate their signatures. Why not? And
when faced with testimony that Supervisor Toledo, in soliciting
an employee’s signature, told employee del Toro that a blank
piece of paper, except for one other signature, that he wanted
del Toro to sign was only to get a $2 raise for the drivers since
the Union was not in the Company any longer, the Respondent
did not call Toledo on surrebuttal to refute this testimony. Why
not? The Respondent is arguing that Toledo is a member of the
unit. Additionally, as noted above, the Respondent cited Memo-
randum GC 02-01 to me even before the trial herein began. If
the Respondent’s attorneys had any questions about the re-
quirements of Levitz, supra, what they were required to show,
as set forth above, was laid out in Memorandum GC 02-01.
Why didn’t the Respondent’s attorneys comply with the obvi-
ous and reasonable requirements to meet the Respondent’s
burden of proof. Why didn’t the Respondent’s attorney’s make
any effort on their own (other that asking questions about some
documents that counsel for the General Counsel introduced
during her cross-examination of their witness) to introduce
evidence to prove the authenticity of the signatures?
Almost 50 years ago the following appeared in the opinion
written by Justice Frankfurter in Brooks v. NLRB, 348 U.S. 96,
99–100 (1954):80
Since an election is a solemn and costly occasion, conducted
under safeguards to voluntary choice, revocation of authority
should occur by a procedure no less solemn than that of the
initial designation. A petition or a public meeting—in which
those voting for and against unionism are disclosed to man-
agement, and in which the influences of mass psychology are
present—is not comparable to the privacy and independence
of the voting booth.
How far have we come, and in what direction have we traveled
in these almost 50 years if the disaffection petition introduced
by the Respondent herein, under the circumstances of this case,

79 As noted above, counsel for the General Counsel on cross-
examination of Grana introduced a number of documents which had
employee signatures.
80 It is noted that Brooks v. NLRB, supra, dealt with a certification
year situation. The quoted language should apply, in my opinion,
equally to situations which occur both in and beyond the certification
year.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD154
is accepted as proof by the Respondent that on April 18, 2001,
the Union had actually lost the support of the majority of the
bargaining unit employees?
Both Grana on her direct testimony and the Respondent on
brief try to convey the impression that Grana verified or au-
thenticated the signatures before she faxed her analysis to
Zdravecky on April 18, 2001. Grana subsequently changed her
testimony when she admitted that she had not authenticated the
signatures when she faxed her analysis to Zdravecky on April
18, 2001, which analysis Zdravecky ostensibly relied on when
she withdrew recognition on April 18, 2001. Zdravecky on
brief perpetuates the falsehood notwithstanding the fact that
Grana recanted her testimony that she verified or authenticated
the signatures before she faxed her analysis to Zdravecky on
April 18, 2001. If Zdravecky had told Grana to verify or au-
thenticate the signatures on April 18, 2001, before she for-
warded the analysis that Zdravecky ostensibly was going to rely
on, then obviously Grana would have done it or would have
explained to Zdravecky that she needed more time to complete
this important task before recognition was withdrawn. Grana
did neither. Zdravecky never asked Grana to verify or authenti-
cate the signatures before Zdravecky withdrew recognition. If
one believes Grana’s revised testimony, Zdravecky withdrew
recognition without Grana verifying or authenticating the signa-
tures. If that is so, why was there any need for Grana to subse-
quently verify or authenticate the signatures? Grana was not a
credible witness. Counsel for the General Counsel expresses the
opinion on brief that contrary to Grana’s revised testimony, it
took longer than a week for Grana to verify or authenticate the
signatures because some of the documents which were turned
over to counsel for the General Counsel pursuant to her sub-
poena were dated after April 25, 2001 (the 1-week later accord-
ing to Grana’s testimony). Again Grana was not a credible wit-
ness. She lied under oath about a number of material facts. In
my opinion Zdravecky never asked Grana to verify or authenti-
cate the signatures and Grana never did. That is why, although
she testified that she read the subpoena, Grana was not con-
cerned with what documents were given to counsel for the
General Counsel with respect to documents which allegedly
were used to verify or authenticate signatures. And that is why
the Respondent’s attorneys did not oversee what documents
were turned over in response to paragraph 15 of the subpoena
(GC Exh. 41). Although Grana changed her testimony about
when she verified or authenticated the signatures and she ad-
mitted that there was no documentation memorializing her
communicating this information to Zdravecky, the Respondent
never subsequently attempted to put on evidence through either
Grana or Zdravecky as to exactly when and how this informa-
tion was communicated. The Respondent never verified or
authenticated the signatures. The Respondent did not care. And
attorney Zdravecky did not care.
It is hard to imagine a situation more illustrative of the need
for a Board conducted vote. Here we have, according to Grana,
some unknown person or persons, during her overnight absence
from her office, sliding an envelope containing the disaffection
petition under her locked office door. But according to Vidal,
Grana told him who gave her the petition but he just could not
remember who it was. How could Grana tell him who gave her
the petition if she did not know who it was? And Burgos also
adds to this mix in that he testifies that when Grana called him
to tell him about the petition she said that “an employee came
in, gave her the petition.” (Emphasis added.) Who do we be-
lieve? Then with respect to what did she do with the petition,
Grana testifies on direct that she “immediately” telephoned
Burgos. But during cross-examination Grana testifies that she
waited an hour to 1-1/2 hours to call Burgos in Chicago be-
cause of the time difference. Burgos, however, testified that he
was on the West Coast when Grana telephoned him about the
petition. This would mean that Grana’s change in her testimony
to accommodate the time difference between Miami and Chi-
cago was not enough in view of the fact that the time difference
on the West Coast is greater. This makes one wonder (1)
whether Grana knew exactly who gave her the petition but it
was decided that it would be better to cloak the delivery in
mystery to avoid having to answer questions about this step of
the procedure; and (2) whether there ever was a phone call to
Burgos to tell him about the petition or whether all of the prin-
cipals knew exactly what was going on all along, and the tele-
phone call story described by Grana and Burgos was concocted
to give the procedure an air of legitimacy and at the same time
give Burgos the ability to deny the he knew anything about the
petition. Grana knew exactly who gave her the disaffection
petition. There was no phone call from Grana to Burgos telling
him about the disaffection petition. Burgos already knew about
the petition. Grana did not have to tell him. Both Grana and
Burgos were not credible witnesses.
As noted above, the Respondent on brief argues that Judge
Amchan concluded in Bunting Bearings Corp., supra, relying
on Levitz, supra, that the General Counsel must aver specifi-
cally in the complaint and present some evidence that the em-
ployer’s contention of the union’s loss of majority support lacks
credence before even being allowed to proceed to the question
of taint. First, since Judge Amchan’s decision was issued July
5, 2002, the Respondent could not have been relying on it for
the trial of the matter at hand. Second, Judge Amchan did not
reach the conclusion which the Respondent argues that he did.
Judge Amchan, as here pertinent, concluded as follows:
In Levitz, . . . [supra,] the Board held that an Employer
must show an actual loss of support by a majority of bar-
gaining unit members to withdraw recognition from an in-
cumbent union. It cannot withdraw recognition and refuse
to bargain with an incumbent union merely on the basis of
a good-faith doubt regarding the union’s majority support.
In the instant case, there is no dispute that Bunting has es-
tablished that the Union lost the support of a majority of
unit members by May 29. However there remains the issue
of whether the May 29 employee petition was tainted by
Respondent’s prior unremedied unfair labor practices.
Vincent Industrial Plastics, 328 NLRB No. 40 [300]
(1999). If so, Bunting would have violated Section 8(a)(5)
and (1) in relying on this petition in refusing to bargain
with the Union.
Bunting Bearings Corp., supra, does not support the argu-
ment made by the Respondent. Indeed, Respondent does not
cite any authority that supports its argument that the General
FLYING FOODS 155
Counsel must specifically aver in the complaint that Flying
Food lacked objective evidence that a majority of its bargaining
unit employees no longer desired to be represented by the Un-
ion and unless the General Counsel does, she waives any chal-
lenge to, and acquiesces to the Company’s contention that it has
objective evidence that a majority of the bargaining unit em-
ployees had expressed a desire to be rid of the Union.81 As a
practical matter, since the petition was not filed with the Board
as a petition for decertification, counsel for the General Coun-
sel did not see the petition and any documents that the Respon-
dent might have relied on to authenticate signatures until the
Respondent complied on the first day of the trial herein with
counsel for the General Counsel’s subpoena request for “the
disaffection petition and any other documentation relied upon
as a basis for Respondent’s withdrawal of recognition of the
Union.” Paragraph 15 of General Counsel’s Exhibit 41. Even
then the Respondent did not supply, for some of the signatures
on the petition, documents which would allow counsel for the
General Counsel to make a comparison with the signatures on
the petition. And even after this was brought to the Respon-
dent’s attention, it did not remedy the situation. Also some of
the documents postdated the time during which Grana testified
that she verified the signatures and the Respondent did nothing
to remedy this situation either. What the Respondent is attempt-
ing to do is shift the burden to the counsel for the General
Counsel. In other words, instead of having the Respondent
prove the validity of the petition, the Respondent is taking the
position that the counsel for the General Counsel must disprove
the validity of the petition in advance of having the documents
to do so.82 The burden of proof with respect to the validity of
the disaffection petition, with respect to the authenticity of the
signatures on the petition, is on the Respondent and no one else.
As the Board pointed out in Levitz, supra, which was issued
on March 29, 2001:
After careful consideration, we have concluded that
there are compelling legal and policy reasons why em-
ployers should not be allowed to withdraw recognition
merely because they harbor uncertainty or even disbelief
concerning the union’s majority status. We therefore hold
that an employer may unilaterally withdraw recognition
from an incumbent union only where the union has actu-
ally lost the support of the majority of the bargaining unit
employees, and we overrule Celanese [Corp., 95 NLRB
664 (1951),] and its progeny insofar as they permit with-
drawal on the basis of good faith doubt. Under our new
standard, an employer can defeat a post-withdrawal refusal

81 The Respondent in making this argument asserted that it was
“coupled with the focus of the General Counsel’s case-in-chief to estab-
lish unlawful taint. . . .” (R. Br. 54.) As can be seen above, a great deal
of counsel for the General Counsel’s focus was on the fact that Re-
spondent did not have objective evidence of the Union’s loss of major-
ity support. The burden of proof on the issue of loss of majority support
rests on the Respondent and not on the General Counsel.
82 Certainly it is realized by the Respondent’s attorneys that to make
a good-faith averment one should be in a position to prove the aver-
ment.
to bargain allegation if it shows as a defense, the union’s
actual loss of majority status. [333 NLRB 717].
. . . .
We emphasize that an employer with objective evi-
dence that the union has lost majority support—for exam-
ple, a petition signed by a majority of the employees in the
bargaining unit—withdraws recognition at its peril. If the
union contests the withdrawal of recognition in an unfair
labor practice proceeding, the employer will have to prove
by a preponderance of the evidence that the union had, in
fact, lost majority support at the time the employer with-
drew recognition. If it fails to do so, it will not have rebut-
ted the presumption of majority status, and the withdrawal
of recognition will violate Section 8(a)(5).49
_________________
49 An employer who presents evidence that, at the time it
withdrew recognition, the union had lost majority support should
ordinarily prevail in an 8(a)(5) case if the General Counsel does
not come forward with evidence rebutting the employer’s evi-
dence. If the General Counsel does present such evidence, then
the burden remains on the employer to establish loss of majority
support by a preponderance of all the evidence.
The Respondent has the burden of proof to show actual loss of
majority support by the union at the time the Respondent with-
drew recognition. Here the Respondent is relying on a disaffec-
tion petition to meet its burden. The Respondent, therefore, has
the burden of proving that the disaffection petition is valid. As
noted above, footnote 13 in Memorandum GC 02-01, which the
Respondent cited in a pleading before the trial herein began,
lays out what must be done. It bears repeating. It reads as fol-
lows:
13 In order to be valid, such a petition must contain the signa-
tures of a majority of employees employed in the unit at the time
of the withdrawal of recognition, and the employer must demon-
strate that those signatures are facially authentic, usually by com-
paring them with employee signatures contained in the em-
ployer’s business records or by witness authentication. See, e.g.,
NLRB Casehandling Manual (Part One) ULP, Sec. 10058.1
The Respondent did not meet its burden of proof. The Re-
spondent did not prove the validity of the disaffection petition
and, therefore, the Respondent did not show actual loss of ma-
jority support by the union at the time the Respondent withdrew
recognition.83 The Respondent violated Section 8(a)(5) and (1)
of the Act by withdrawing recognition of the Union as the ex-
clusive bargaining representative of the unit.
While, in my opinion, it is not necessary to go into the ques-
tion of whether the petition was tainted, there is a great deal of
this type of evidence on the record, and in view of the egre-
gious nature of the conduct, I believe that findings should be
made with respect to it. If the Respondent had proven that the
petition was valid, which the Respondent did not do, I would
find that it was tainted by (1) the Respondent (a) unlawfully
failing and refusing to provide a wage proposal to the Union;
(b) showing antiunion videos, especially during the certification

83 Wilsher’s belated exercise is not only irrelevant but it lacks credi-
bility in that Wilsher relied on Grana, who is not a credible witness, for
certain information, and Wilsher did not review all the documents
herself.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD156
year, soliciting employees to decertify the Union; (c) threaten-
ing employees with loss of business opportunities due to their
support for the Union; (d) having its agent Mazier solicit em-
ployee support of a petition to decertify the Union;84 and (e)
coercively interrogating an employee about his union member-
ship, activities, and sympathies in the presence of other em-
ployees, (2) the fact that two of the pages of the disaffection
petition had no heading, one of the employees who signed one
of the pages which had no heading testified was misled as to
the purpose of the document, and notwithstanding this, the
Respondent did not call the other people who signed these
pages to testify as to what they were told regarding the purpose
of the document, and (3) there is evidence of record of the pos-
sible forgery of one of the signatures in the petition.85 I con-
clude that counsel for the General Counsel has established a
causal relationship between the unlawful conduct of the Re-
spondent and its agents and any expression of disaffection with
the incumbent Union.
Paragraph 14(b) of the consolidated complaint alleges that
since on or about April 18, 2001, Respondent has failed and
refused to meet and bargain with the Union upon request.
Counsel for the General Counsel on brief contends that the
Respondent acted unlawfully and at its peril when it withdrew
recognition on April 18, 2001, and its failure and refusal to
meet and bargain with the Union upon request after April 18,
2001, was unlawful. I agree. The Respondent violated Section
8(a)(5) and (1) of the Act as alleged in paragraph 14(b) of the
consolidated complaint.
Paragraph 15 of the consolidated complaint alleges that by
its overall conduct, including the conduct described above in
paragraphs 8, 9(a) and (b), 10(a) through (c), 11(a) and (b), 12,
13, and 14(a) and (b), Respondent has failed and refused to
bargain in good faith with the Union as the exclusive collec-
tive-bargaining representative of the unit. Since, as here perti-
nent, the complaint allegations in paragraphs 10(a) and (c) will
be dismissed they should not be included here. Otherwise in
view of the conclusions reached above, the Respondent violated
Section 8(a)(5) and (1) of the Act as alleged in this paragraph.
Paragraph 16 of the consolidated complaint alleges that on or
about May 7, 2001, Respondent, by Raul Burgos, at Respon-
dent’s facility, informed employees that they were receiving

84 Notwithstanding the fact that Toledo may be included in the unit
as the hourly supervisor in transportation, he is allowed to sign the
adjustment log as a supervisor, and he has the title supervisor. He also
was acting as an agent of the Respondent when he solicited Toro’s
signature, misleading him as to the purpose of the document.
85 It is noted that Zdravecky did not show Damaris Fernandez on re-
direct what purports to be her signature on the disaffection petition.
While the disaffection petition was not marked or introduced until later
in the proceeding when Grana testified, one would think that if Damaris
Fernandez clearly was mistaken, the page with what purports to be her
signature could have been marked for identification on her redirect and
she could have been given the opportunity to see what purports to be
her signature on the disaffection petition. Was this a mistake on
Zdravecky’s part or did Zdravecky know or strongly suspect that the
signature on the disaffection petition was a forgery and the Respon-
dent’s purpose would not be served by showing the signature to Fer-
nandez? Again, the burden of proof is on the Respondent to prove the
authenticity of the signatures.
wage increases that the Union was not able to obtain for them
as a reward for decertifying the Union. As noted above, during
his cross-examination Vidal testified that Burgos told the em-
ployees
that the employees had . . . petitioned not to be represented by
the union any more, and as a result than the negotiations, and
the wage increase would be done between the employees and
the company.
Also as noted above, on redirect Vidal testified that while
Burgos told the employees that a petition had been signed by a
majority of the employees not to be represented by the Union
and negotiations would be between the employees and the
Company. Burgos never said either that the wage increases
were being given as a reward for the petition or because the
employees had signed a petition to get rid of the Union or be-
cause they had removed the Union, they were getting this in-
crease. The best Burgos could manage in response to Vidal’s
testimony was that he did not recall telling the employees that
there was a petition not to be represented by the Union, and as a
result wage increases would be given by the Company. Burgos
did testify that he never mentioned the petition to the employ-
ees during the 3 days of meetings he held with them regarding
the wage increases. That part of his testimony is clearly con-
trary to Vidal’s testimony. Burgos is not a credible witness.
Vidal impressed me as being basically a credible witness. The
testimony of Vidal is credited.86 While Burgos may not have
specifically used the word “reward” and while he may not have
specifically said, “[T]his is the wage increase that the Union
was not able to obtain,” the fact that he knew the employees
were frustrated during negotiations because the Respondent
would not make an economic proposal, the timing of his state-
ments and the timing of the wage increase—when he said he
would do something and not when, pursuant to negotiations, he
should have done something—and the fact that he personally
spoke to the employees about this matter (vis-à-vis circulating a
notice about the wage increase without any mention of the Un-
ion, the petition or what was transpiring regarding the Union)
referring to the petition and using the words “as a result” leads
me to conclude that the General Counsel’s interpretation of
how the employees would objectively view what Burgos was
saying is a reasonable and correct interpretation. The Respon-
dent violated Section 8(a)(1) of the Act as alleged in paragraph
16 of the consolidated complaint.
Paragraph 17(a) of the consolidated complaint alleges that
Respondent, by Rene Largaespada, at Respondent’s facility, in
or around early May 2001, on a date not more specifically
known by the General Counsel, informed employees that they
were receiving wage increases as a reward for decertifying the
Union. Since there is no evidence of record to support this alle-
gation, it will be dismissed.
Paragraph 17(b) of the consolidated complaint alleges that
Respondent, by Rene Largaespada, at Respondent’s facility in

86 As noted above, Burgos’ testimony conflicts with the testimony of
Vidal with respect to other matters. Burgos lied under oath about mate-
rial matters in his attempt to, among other things, justify the payment of
the May 2001 wage increases.
FLYING FOODS 157
or around early May 2001, on a date not more specifically
known by the General Counsel, informed employees that it was
replacing the Union with an “EAR” group to address employee
grievances. Since there is no evidence of record to support this
allegation, it will be dismissed.
Paragraph 18(a), in conjunction with paragraphs 18(c) and
(d) of the consolidated complaint, alleges that in or around
early May 2001, on a date not more specifically known by the
General Counsel, Respondent created an “EAR” group as a
replacement for the Union to deal directly with employees con-
cerning terms and conditions of employment; that this relates to
wages, hours, and other terms and conditions of employment of
the unit and is a mandatory subject for the purposes of collec-
tive bargaining; and that Respondent engaged in this conduct
without giving the Union notice and an opportunity to bargain.
Counsel for the General Counsel on brief contends that the
Respondent sought to placate its bargaining unit employees by
not only granting promised wage increases but also by forming
an EAR committee created solely for the purpose of replacing
the Union; that as Grana testified, employees could raise wage
issues at the EAR committee if they so chose; that the issues
addressed by the EAR committee qualify as conditions of work
and concern the statutory collective-bargaining subjects such as
wages and labor disputes; that since employees from each de-
partment are selected to serve on the committee, EAR meets the
statutory definition of an employee representation committee
under Section 2(5) of the Act, and, much like the Union, consti-
tutes a labor organization, Electromation, Inc., 309 NLRB 990
(1992); and that the committee was established in order to re-
place the Union and deal directly with employees concerning
terms and conditions of employment in violation of Section
8(a)(5) and (1) of the Act. The Respondent on brief argues that
there is no evidence that EAR had any authority to bargain on
behalf of the employees or to resolve employee grievances
regarding wages, hours, and working conditions; that the re-
implementation of the EAR committee in May 2001 cannot
constitute a failure to bargain in good faith with the Union
given that the implementation of the EAR committee was not
announced until some three weeks after the Company lawfully
withdrew recognition from the Union; and that the “Company
was certainly entitled to communicate directly with the em-
ployees, including to hear grievances, and resolve disputes in
the absence of a union. See Brown & Root, 308 NLRB 1206
(1992) (finding that it is lawful to make unilateral changes after
withdrawal of recognition).” (R. Br. 89.) As concluded above,
however, the Respondent unlawfully withdrew recognition
from the Union. Also, as concluded above, while the exact
word “replace” may not have been used, this is exactly what the
Respondent was doing. As alleged, Respondent created the
“EAR” committee as a replacement for the Union to deal di-
rectly with employees concerning terms and conditions of em-
ployment in that the Respondent indicated its willingness to
entertain grievances that relate to wages, hours and other terms
and conditions of employment of the unit, which are mandatory
subjects for the purposes of collective bargaining. The Respon-
dent engaged in this conduct without giving the Union notice
and an opportunity to bargain. The Respondent violated Section
8(a)(5) and (1) of the Act as alleged in paragraphs 18(a), (c),
and (d) of the consolidated complaint.
Paragraph 18(b), in conjunction with paragraphs 18(c) and
(d), paragraph 21, and paragraph 23 of the consolidated com-
plaint, alleges that in or around mid-to-late May 2001, on a date
not more specifically known by the General Counsel, Respon-
dent implemented retroactive wage increases for employees in
the unit; that this relates to wages, hours, and other terms and
conditions of employment of the unit and is a mandatory sub-
ject for the purposes of collective bargaining; that Respondent
engaged in this conduct without giving the Union notice and an
opportunity to bargain; that Respondent engaged in this con-
duct because the employees of Respondent joined, supported,
and assisted the Union and engaged in concerted activities and
to discourage employees from engaging in these activities; and
that Respondent has been discriminating in regard to the hire or
tenure or terms or conditions of employment of its employees,
thereby discouraging membership in a labor organization.
Counsel for the General Counsel on brief contends that given
the correlation between the decision to grant a retroactive wage
increase with representations made by Respondent during nego-
tiations, and representations made to employees that they were
no longer represented by the Union, it is evident that the retro-
active wage increase was intended to reward the unit employees
for their actions in connection with the disaffection petition and
discourage membership in the Union in violation of Section
8(a)(3) of the Act; and that because the withdrawal of recogni-
tion here is clearly unlawful, the unilateral implementation of a
retroactive wage increase on May 4, 2001, constitutes a viola-
tion of Section 8(a)(5) of the Act as well. The Respondent on
brief argues that it did not violate Section 8(a)(5) and (1) of the
Act by unilaterally implementing across-the-board wage in-
creases effective May 4, 2001, and in granting the increase it
did not discriminate against those who continued to support the
Union in violation of Section 8(a)(3) of the Act. As concluded
above, the wage increase was, in effect, described to the em-
ployees as a reward. It was intended to discourage support for
the Union. And since it was unilaterally implemented after the
Respondent unlawfully withdrew recognition of the Union, the
Respondent violated Section 8(a)(5) and (1) of the Act, in addi-
tion to Section 8(a)(1) and (3) of the Act, as alleged in para-
graphs 18(b), in conjunction with paragraphs 18(c) and (d),
paragraph 21, and paragraph 23.
Paragraph 19 of the consolidated complaint alleges that on or
about July 4, 2001, Respondent, by Nelson Nunez, at Respon-
dent’s facility, threatened employees with discharge due to their
union membership, activities, and sympathies. The only witness
testifying in support of this allegation is Hurtado. For the rea-
sons set forth below, Hurtado is not a credible witness. His
testimony will be credited only in those instances where it is
corroborated by a reliable witness or a reliable document. Sup-
posedly Nunez threatened to fire Hurtado because 4 days earlier
Hurtado distributed union authorization cards to employees in
the parking lot at the Respondent’s facility. Hurtado did not
testify that any supervisor saw him distributing the cards. He
did testify that Demaris Fernandez was there when Nunez
threatened to fire him. She did not corroborate him. In fact
when the Respondent called her as a witness, she denied
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD158
knowledge of any such incident. Nunez denied making the
threat. Nunez’ testimony is credited. This allegation of the con-
solidated complaint will be dismissed.
Paragraphs 20(a), (b), (c), and (d), in conjunction with para-
graphs 21 and 23, of the consolidated complaint collectively
allege that on or about July 10, 2001, Respondent verbally rep-
rimanded Hurtado, on or about July 18, 2001, Respondent is-
sued a first final warning to Hurtado, on or about July 18, 2001,
Respondent suspended Luis Hurtado for 4 days, and on or
about July 25, 2001, Respondent issued two final warnings to
Hurtado all because Hurtado joined, supported and assisted the
Union and engaged in concerted activities and to discourage
employees from engaging in these activities; and that Respon-
dent has been discriminating in regard to the hire or tenure or
terms or conditions of employment of its employees, thereby
discouraging membership in a labor organization. The General
Counsel on brief contends that Respondent has failed to satisfy
its burden under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); that Respondent has not shown that it has ever
warned or disciplined an employee for any of the reasons as-
serted, much less suspended any employee for similar conduct;
that Respondent began to strictly apply policies with respect to
the use of the log book in a discriminatory fashion; that prior to
having knowledge of Hurtado’s efforts to acquire support for
the Union, the record clearly reflects that Respondent did not
monitor the use of the log books; that the Respondent consid-
ered Hurtado’s union support when it disciplined him based on
the timing of the disciplinary actions; and that, therefore, the
Respondent violated Section 8(a)(3) of the Act. The Respon-
dent on brief argues that Hurtado gave inconsistent and in-
credulous testimony with respect to changing the log sheets in
Grana’s office; that Grana could have terminated Hurtado for
his admitted falsifying of his time entries in the logs but since
she could not prove that he falsified the supervisor’s initials and
because other employees had also written themselves into the
adjustment log, Grana gave Hurtado the benefit of the doubt
and did not terminate him but rather suspended him; that under
Wright Line, supra, a company may rebut a prima facie show-
ing by demonstrating that it would have taken the same action
even in the absence of the employee’s union activity; that in
Carambola Beach Hotel, 307 NLRB 915 (1992), the Board
affirmed a judge’s decision that the employer lawfully dis-
charged an employee for “stretching time” on his timesheets,
even though the employee had also engaged in protected activi-
ties; that in Animal Humane Society, 287 NLRB 26 (1986), the
Board held that in cases of employee dishonesty, in the absence
of persuasive evidence of pretext, a discharge is justified and
not an unfair labor practice; that counsel for the General Coun-
sel failed to establish that Hurtado was treated any differently
than any other employee who has engaged in similar conduct;
that while the Respondent issued only verbal warnings to
Damaris Fernandez and Salinas for making their own entries in
the adjustment log and for their excessive use of the adjustment
log, these two employees had not resorted to deceit in an at-
tempt to conceal their tardiness and neither had been counseled
previously regarding their abuse of the adjustment log; that
Hurtado not only admitted that he falsified his records in viola-
tion of company policy, but his testimony is rampant with in-
consistencies and it is clear that while under oath, Hurtado had
no problem changing his story several times, depending on who
was asking the questions and when they were asked.; that Hur-
tado not only changed his testimony several times as to when
he came in on July 12, 2001, and what he recorded his time in
the log as, but he also changed his mind several times as to
whether he had changed the logs when Grana showed them to
him in the July 18, 2001 meeting; and that given Hurtado’s
admission of misconduct, counsel for the General Counsel is
hard-pressed to argue that the discipline dispensed violated
Section 8(a)(3) of the Act.
Pursuant to Wright Line, supra, the Board employs a causa-
tion test in all cases alleging a violation of Section 8(a)(3) or
(1) of the Act turning on employer motivation. Counsel for the
General Counsel must make a prima facie showing sufficient to
support the inference that protected conduct was “motivating
factor” in the employer’s decision. Once this is established, the
burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the pro-
tected conduct. To make a prima facie showing, Counsel for the
General Counsel must show that Hurtado engaged in union
activity, that the Respondent knew that he engaged in union
activity, that such activity was a motivating factor in the Com-
pany’s disciplinary action, and that there was antiunion animus
on the part of the Respondent. The Respondent may rebut a
prima facie showing by proving that it would have taken the
same action even in the absence of the employee’s union activ-
ity. If the Company meets this burden, counsel for the General
Counsel must demonstrate that the employer’s proffered justifi-
cation is a pretext for discriminatory conduct.
Hurtado is not a credible witness. Eventually he admitted
that the original entries he made in the adjustment log were
incorrect and he knew at the time he made them that they were
incorrect. Hurado also realized that against company policy he
would have been paid for time he did not work. On rebuttal,
Hurtado began testifying that although the card he used to
clock-in worked during a period of time, he was required to
summon a supervisor to clock in because previously he had
engaged in union activity. When an attempt was made to de-
termine when and why this happened, Hurtado testified that he
could not give the period that it occurred but he speculated that
it was due to his union activity. Also on rebuttal for the first
time Hurtado testified that he changed the log sheets in Grana’s
office because she told him to do it. If Grana was trying to em-
phasize to Hurtado that employees should not be writing in the
adjustment log, it is not clear why she would unnecessarily ask
him to do just that. Hurtado changed his testimony on rebuttal
regarding how long he was at the Respondent’s facility before
he went to the Airport on July 12, 2001. Originally, he testified
that as he arrived at work Rosario sent him to the airport, and
when he arrived at work he immediately got in a truck and went
to the airport. But on rebuttal Hurtado changed his testimony in
that he now testified that when he arrived at the Respondent’s
facility on July 12, 2001 he went into the facility and then he
left for the airport at 4:30 p.m. The obvious question is if he
went into the Respondent’s facility before leaving for the air-
FLYING FOODS 159
port, why didn’t he clock in or have an entry made in the ad-
justment log at that time. Regarding the June 28, 2001 Ameri-
can West incident, Hurtado testified that he and Toledo made
entries in the red book. Yet when he was shown the red book he
could not find the entries. Contrary to Hurtado’s assertion, I do
not believe that the Labor Department was mentioned in his
conversation with Grana regarding his discipline. With respect
to his testimony that he solicited signatures on union authoriza-
tion cards in the Respondent’s parking lot on June 30, 2001, no
other employee corroborated him. And Armero did not cor-
roborate Hurtado with respect to Hurtado’s testimony that he
turned these signed cards over to Armero, And finally while
according to Hurtado, Damaris Fernandez was present when
Nunez allegedly threatened to fire him on July 4, 2001, she did
not corroborate Hurtado when she testified. While an inter-
preter was used with Hurtado, that fact alone does not explain
the changes in Hurtado’s testimony, the contradictions, the
almost total lack of corroboration notwithstanding the obvious
shortcomings in Hurtado’s testimony, and the failure to attempt
to explain some of the glaring inconsistencies.
Counsel for the General Counsel has not demonstrated that
Respondent was aware that Hurtado engaged in union activity
before he was disciplined. Indeed, counsel for the General
Counsel has not demonstrated that Hurtado engaged in union
activity since she is relying solely on Hurtado’s testimony and
he is not a credible witness. Counsel for the General Counsel
has demonstrated that Hurtado was disciplined and that there is
antiunion animus on the part of the Respondent. But this is not
sufficient to make a prima facie showing. Assuming, arguendo,
that counsel did establish a prima facie case, the Respondent
has demonstrated that it had a legitimate business justification
for taking the action it did with respect to Hurtado. As coordi-
nator, Hurtado had final responsibility on the June 28, 2001
flight in question. While testifying, he demonstrated that he can
have an attitude at times. It was not demonstrated that his disci-
pline for the June 28, 2001 incident was disparate when this
factor is taken into consideration. Also it has not been demon-
strated that Hurtado was treated disparately regarding his other
disciplines for it has not been shown that any other employee
engaged in knowingly making incorrect entries in the adjust-
ment log. What Hurtado did was very serious. He was attempt-
ing, against company policy, to get paid for time that he did not
work. The July 12, 2001 entries were questioned by manage-
ment because a determination had to be made which entry was
correct so Hurtado could be paid accordingly. The July 13,
2001 entry was questioned because management wanted to
determine why the first flight going out of the kitchen that day,
which was the flight Hurtado was supposed to be coordinating,
left late for the airport and it was missing a number of items. It
was not that the Respondent was looking for things to disci-
pline Hurtado over. Rather, it was that Hurtado created situa-
tions that not only caught the attention of management but de-
manded that management address and resolve the issues. Re-
spondent has shown that it would have taken the same action
regarding Hurtado even in the absence of any union activity,
which union activity was not even proven here with respect to
Hurtado. And counsel for the General Counsel has not demon-
strated that the employer’s justification is a pretext for dis-
criminatory conduct. The Respondent did not violate the Act as
alleged in paragraphs 20(a), (b), (c), and (d) of the consolidated
complaint. This portion of the consolidated complaint will be
dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to provisions of Section
8(a)(1) of the Act:
(a) By failing and refusing on or about January 30, 2001, to
provide a wage proposal to the Union.
(b) Through antiunion videos shown at the Respondent’s
Miami facility in February, March, and April 2001, soliciting
employees to decertify the Union.
(c) Threatening employees on or about February 14, 2001,
with loss of business opportunities due to their support for the
Union.
(d) Threatening in May 2001 to withhold wage increases due
to employees’ support for the Union.
(e) Informing employees in or around early May 2001 that
they were receiving wage increases as a reward for decertifying
the Union.
(f) Informing employees on or about May 7, 2001, that it was
replacing the Union with an “EAR” group to address employee
grievances.
(g) Soliciting employee support on or about April 13, 2001,
and on or around mid-April 2001 of a petition to decertify the
Union
(h) Informing employees in April 2001 of the unlawful with-
drawal of recognition and saying to employees that the Union
was no longer their representative.
(i) Coercively interrogating an employee on March 28, 2001,
about his union membership, activities and sympathies.
(j) Informing employees on or about May 7, 2001, that they
were receiving wage increases that the Union was not able to
obtain for them as a reward for decertifying the Union.
4. By implementing retroactive wage increases for employ-
ees in the involved unit to discourage employees from joining,
supporting, and assisting a union and engaging in concerted
activities, Respondent committed unfair labor practices con-
trary to provisions of Section 8(a)(1) and (3) of the Act.
5. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to provisions of Section
8(a)(1) and (5) of the Act:
(a) Withdrawing recognition on or about April 18, 2001, of
the Union as the exclusive collective-bargaining representative
of the unit.
(b) Failing and refusing since on or about April 18, 2001, to
meet and bargain with the Union upon request.
(c) Failing and refusing to bargain in good faith with the Un-
ion as the exclusive collective-bargaining representative of the
unit by its overall conduct, including the conduct described
above in paragraphs 8, 9(a) and (b), 10(b), 11(a) and (b), 12,
13, and 14(a) and (b).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD160
(d) Creating an “EAR” group in or around early May 2001 as
a replacement for the Union to deal directly with employees
concerning terms and conditions of employment, which are
mandatory subjects for the purposes of collective bargaining,
without giving the Union notice and an opportunity to bargain.
(e) Implementing in mid-to-late May 2001 retroactive wage
increases, which relate to terms and conditions of employment
and are a mandatory subject of bargaining, for employees in the
unit without giving the Union notice and an opportunity to
bargain.
6. The unfair labor practices set forth above are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. Respondent has not violated the Act in any other manner.
THE REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I shall recommend it cease and desist therefrom
and take certain affirmative action designed to effectuate the
purposes of the Act. I shall recommend that the Respondent be
ordered to recognize and on request, bargain with the Union as
the bargaining representative of the employees in the appropri-
ate unit and put in writing and sign any agreement reached in
terms and conditions of employment and to post appropriate
notices.
It would contradict the purposes of the Act if the employees
in the involved unit were penalized by an Order which might be
interpreted as requiring the Respondent to withdraw the May
2001 wage increase. Accordingly, nothing in this Decision and
Order requires the Respondent to withdraw the May 2001 wage
increase. The wage increase shall remain in effect.
[Recommended Order omitted from publication.]