Krystal Enterprises Inc.

National Labor Relations Board - Board Decisions

Aug 26, 2005

345 N.L.R.B. 227 (N.L.R.B. 2005)

KRYSTAL ENTERPRISES
345 NLRB No. 15
227
Krystal Enterprises Inc. and United Food and Com-
mercial Workers Union, Local 324.1 Cases 21–
CA–34553 and 21–CA–34875
August 26, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 1, 2002, Administrative Law Judge John J.
McCarrick issued the attached decision. The General
Counsel and the Respondent filed exceptions and sup-
porting briefs, and the General Counsel and the Charging
Party filed answering briefs.
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
We agree with the judge, for the reasons stated in his
decision, that the Respondent violated Section 8(a)(1) by:
threatening to retaliate against employees for engaging in
union activities; interrogating employees about their and
other employees’ union activities;4 creating the impres-
sion that employees’ union activities were under surveil-
lance; denying employees access to union representatives
during a union rally; and promulgating and maintaining
an overly broad no-solicitation/no-distribution rule. We
also agree with the judge that the Respondent violated
Section 8(a)(3) and (1) by disciplining and suspending
employee Ricardo Romero for engaging in union activi-
ties and by reducing the work duties of employee Olga
Lopez based on the Respondent’s belief that she was
engaging in union activities.

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers Union from the AFL–CIO
effective July 29, 2005.
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.
3 In light of the fact that many of the Respondent’s employees are
Spanish-speaking, we shall modify the recommended Order to provide
that the Respondent post the attached notice to employees in both Span-
ish and English. Washington Fruit & Produce Co., 343 NLRB 1215,
1215 fn. 3 (2004).
We shall additionally modify the recommended Order to provide
standard remedial language and to conform it to the violations found.
4 We find it unnecessary to pass on the judge’s conclusion that Plant
Manager Dominick Vitelli’s questioning of employees Juan Rodriguez
and Juan Luis Quintana in January 2001 was unlawful as such a finding
would be cumulative and would not materially affect the remedy.
Contrary to the judge, however, we find that the Re-
spondent did not violate Section 8(a)(3) and (1) by dis-
charging Romero and by laying off Lopez. As discussed
more fully below, we find that the Respondent satisfied
its rebuttal burden under Wright Line of establishing that
it would have discharged Romero based on his violations
of the Respondent’s sexual harassment policy even in the
absence of his union activities.5 We similarly find that
the Respondent established that it would have included
Lopez in its 20-percent work force reduction even in the
absence of her perceived union activities.
I. DISCHARGE OF RICARDO ROMERO
Romero was employed by the Respondent from Octo-
ber 1999 to May 10, 2001.6 He was a quality control
inspector in the parts department from September 2000
until his discharge on May 10. In January, Romero began
assisting the Union’s organizing effort at the Respon-
dent’s facility by providing the Union with home phone
numbers of the Respondent’s employees, handing out
authorization cards, handbilling outside the facility, and
talking about the Union with coworkers.
Between March and May, the Respondent issued dis-
ciplinary actions against Romero on three occasions. On
March 9, the Respondent gave Romero a written warning
for accepting three defective doors. On March 22, the
Respondent gave Romero a written warning for being out
of his work area during working time. On May 7, the
Respondent issued a 3-day suspension to Romero for
again being out of his work area during working time.
We agree with the judge that these disciplinary actions
violated Section 8(a)(3) of the Act.
In early May, at the company Cinco de Mayo party, at
least three supervisors and employee Nestor Sanchez
witnessed Romero grab two or three other employees
from behind and push his pelvis against them. At the end
of the party, one of the Respondent’s supervisors, Luis
Alvarez, approached Sanchez and asked if he had seen
Romero’s actions. Sanchez responded that he had seen
them, that he had seen Romero engage in that sort of
behavior regularly, and that he did not think it was right.
Alvarez then told Sanchez that he should file a complaint
with human resources if he did not think Romero’s con-
duct was right. Sanchez then went with Alvarez to Plant
Manager Vitelli’s office and told Vitelli that he had seen
Romero and other employees in the parts department
touch employees’ genitals and buttocks on many occa-
sions. Sanchez, however, was not sure he wanted to file a

5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
6 All dates are 2001, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD228
complaint and stated he wanted to think about it over the
weekend.
On the following Monday, Sanchez told Vitelli that he
was ready to file a complaint.7 Sanchez then filed a com-
plaint with Human Resources Assistant Flavio Montes.
The complaint did not mention the misconduct at the
Cinco de Mayo party. Instead, it cited sexual horseplay
and touching that Sanchez had observed Romero and
employees in the parts department, Miguel Valpuesta,
Rafael Bonilla, Ivan Artiaga, and Christian de la Cruz,
engage in on a regular basis. Sanchez testified that he
also told Montes that Romero and Valpuesta had, on
separate occasions, grabbed him from behind and
touched his buttocks and that he did not feel comfortable
around employees who engaged in such offensive touch-
ing.
In response to Sanchez’ complaint, Montes and Vitelli
conducted an investigation into sexual harassment in the
parts department. During the investigation, Montes and
Vitelli interviewed about 15 employees. A number of
them implicated Romero as a primary participant in the
sexual touching. Upon completion of the investigation,
Montes concluded that Romero had repeatedly violated
the company sexual harassment policy and recommended
his discharge. Montes recommended Romero’s discharge
because this was his second offense. Romero previously
received a written warning in February for violating the
Respondent’s sexual harassment policy by using profan-
ity with another employee during the morning break.8
Given the weight of evidence against him and the fact
that Romero had been previously warned about violating
the Respondent’s sexual harassment policy, Montes did
not interview Romero before recommending his dis-
charge.
In addition to Romero’s termination, Montes recom-
mended the discharge of Valpuesta, whom Montes de-
termined had been the other main instigator of the sexual
touching in the parts department and had been previously
disciplined for violating the Respondent’s sexual har-

7 Our colleague refers to Sanchez’ complaint as “trumped up” by the
Respondent. The record, however, does not support this assertion.
There is no evidence to call into question whether Romero engaged in
misconduct at the Cinco de Mayo party, and the judge found that simi-
lar conduct by Romero and others was common in the parts department.
Sanchez filed the complaint only after thinking about it over the week-
end. We are satisfied that the complaint was not “trumped-up” but was
instead well founded and filed by Sanchez voluntarily.
8 This warning was not alleged as a violation of the Act. The Re-
spondent’s sexual harassment policy is set forth in full in the judge’s
decision. It prohibits verbal as well as physical harassment. In the
absence of any record evidence concerning the specific profanity used
by Romero in February, we will not disturb the judge’s unexcepted to
finding that the warning issued by the Respondent was for violating its
sexual harassment policy.
assment policy. Montes also recommended that Bonilla
be suspended, and that Jaime Martinez, Jose Alberto
Espinosa, and de la Cruz be given written warnings.
Human Resources Manager Gabriella Strauss imple-
mented the recommended disciplinary actions, including
discharging Romero for violating the Company’s sexual
harassment policy. Other than Romero’s discharge, none
of the disciplinary actions taken as a result of the sexual
harassment investigation were alleged as violations.
To establish a violation under Wright Line, the General
Counsel must prove, by a preponderance of the evidence,
that the employee’s protected conduct was a substantial
or motivating factor in the employer’s decision to dis-
charge or take other adverse action against the employee.
The burden then shifts to the Respondent to demonstrate
that it would have taken the same action even in the ab-
sence of the protected activity.
We have adopted the judge’s findings that the March
and May warnings and suspension issued to Romero
violated Section 8(a)(3) and (1).9 In these circumstances,
we also agree with the judge that the General Counsel
met his burden of proof in its case-in-chief that Romero’s
union activity was a motivating factor in his discharge.
We disagree, however, with the judge’s finding that the
Respondent failed to show that it would have discharged
Romero even in the absence of that activity.
The judge correctly recognized that the “Respondent
had ample evidence that Romero’s behavior in 2001 vio-
lated company sexual harassment policy,” which defines
sexually harassing conduct as “unwelcome sexual ad-
vances . . . or any other verbal or physical contact of a
sexual nature that prevents an individual from effectively
performing the duties of their position or creates an in-
timidating, hostile, or offensive working environment.”
The judge found, however, that the Respondent’s sexual
harassment policy was regularly dishonored by both em-
ployees and supervisors and found that the Respondent
treated Romero disparately when compared with its per-
missive treatment of its supervisors and employees.
Thus, the judge concluded that the Respondent’s sexual
harassment defense was a pretext and the true reason for
Romero’s discharge was his union activity. We do not
agree with these findings.
As the judge recognized, Romero’s conduct clearly
violated the Respondent’s sexual harassment policy.
Moreover, these violations were serious and repeated. As
discussed more fully above, at a company party, Romero

9 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) by disciplining Romero on March 9, we do not rely on his find-
ing that the Respondent coercively interrogated employee Rene An-
guiano about Romero on March 7 because the record shows that this
interrogation occurred on May 7.
KRYSTAL ENTERPRISES 229
grabbed two or three employees from behind and pushed
his pelvis against them. Several employees similarly in-
dicated that Romero had touched them in an offensive
manner at work on other occasions. The Respondent
concluded that Romero had repeatedly touched fellow
employees in a sexual manner and discharged him for his
misconduct.
The record demonstrates that the Respondent consis-
tently investigated and took action when, as here, it re-
ceived a complaint of sexual harassment. Indeed, there is
no evidence that the Respondent ever failed to investi-
gate a sexual harassment complaint. Nor is there any
evidence that the Respondent failed to take disciplinary
action if the complaint proved well founded. For exam-
ple, in August 1999, the Respondent terminated four em-
ployees after a complaint and investigation into an inci-
dent in which those employees had pulled down the
pants of a coworker. In February, only 3 months before
Romero’s discharge, the Respondent suspended a male
employee in the parts department for 3 days after he
made a sexually oriented remark to a female coworker
and she complained to human resources. Again in Febru-
ary, one parts department employee was suspended and
two others put on probation for being in possession of
offensive materials.
The Respondent’s handling of the complaint concern-
ing Romero was consistent with this past practice. Upon
receiving the complaint, the Respondent conducted a
thorough investigation and interviewed 15 employees.
As a result of this investigation, the Respondent disci-
plined five employees other than Romero. Three em-
ployees received written warnings, one employee was
suspended, and the other employee, Valpuesta, impli-
cated as a primary instigator with Romero was likewise
terminated. None of these other employees were known
union supporters and none of these disciplinary actions
were alleged as unfair labor practices.
Our dissenting colleague, like the judge, asserts that
the Respondent did not similarly discipline other em-
ployees who engaged in the same type of offense as Ro-
mero. Our colleague recounts in lengthy and graphic
detail conduct of a sexually oriented nature at the Re-
spondent’s facility that went unpunished. We recognize
that the Respondent’s supervisors and managers did not
respond to many incidents of sexually oriented conduct
and indeed participated at times in such conduct. When
no employees complained, the conduct was apparently
tolerated by the Respondent, an indifference we neither
condone nor share. The record clearly demonstrates,
however, that when an employee complained about this
tawdry behavior, the Respondent took action.10
Sanchez’ complaint was one of many on which the Re-
spondent acted. Sanchez felt uncomfortable and com-
plained that the conduct was affecting his ability to do
his job. It prompted the investigation and discipline at
issue here, just as previous complaints prompted disci-
pline against other offending employees. The incidents
the judge and our dissenting colleague allude to are dis-
tinguishable because they did not involve or result in an
employee complaint. Consequently, they cannot be relied
upon as evidence of disparate treatment.11
Our colleague argues that the Respondent “orches-
trated” Sanchez’ complaint. In our view, nothing in the
manner in which the complaint was made justifies a find-
ing of antiunion motivation rendering Romero’s dis-
charge discriminatory. The Respondent did not direct
Sanchez to file a complaint; it told him to file a com-
plaint if he did not think the conduct was right. Consis-
tent with its practice, the Respondent took no action on
the matter until Sanchez thought about it over the week-
end and then filed a complaint.12 The complaint was not
about Romero’s activities at the Cinco de Mayo party,
but about his offensive behavior and the similarly offen-
sive conduct of others in the parts department and San-
chez’ serious discomfort with it. Thereafter, the Respon-
dent acted on Sanchez’ complaint in accordance with its

10 Our colleague notes that several supervisors and managers wit-
nessed prior misconduct and even participated in same. However,
particularly in light of the latter fact (participation), there is nothing to
show that they complained about the misconduct. By contrast, em-
ployee Sanchez did complain.
11 Our dissenting colleague cites to a number of cases to support her
contention that the Respondent treated Romero disparately. These
cases, however, are distinguishable because in each the employer failed
to show that it had ever taken similar disciplinary action in response to
similar violations in the past. In the present case, the Respondent has
shown that it took similar disciplinary actions against employees who it
found had violated the sexual harassment policy on several occasions,
including terminating one employee and disciplining four others in
addition to Romero for engaging in sexual harassment in the parts
department.
We likewise find KOFY TV-20, 332 NLRB 771 (2000), cited by our
dissenting colleague, inapplicable to the present case. In KOFY TV-20,
the Board found that the respondent failed to rebut evidence of dispa-
rate treatment by presenting examples of similar treatment. In the pre-
sent case, the General Counsel failed to show disparate treatment. The
examples of sexual horseplay about which no complaints were made
are not analogous to the examples of sexual horseplay over which em-
ployees filed complaints of sexual harassment. Indeed, the record does
not identify a single instance of an employee complaint that did not
result in the Respondent disciplining the offending employee.
12 In these circumstances, contrary to our dissenting colleague’s be-
lief, the fact that Sanchez did not complain after witnessing numerous
prior incidents of sexual horseplay and misconduct does not establish
that his complaint in this instance was induced by the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD230
consistent practice of investigating and taking action on
complaints of sexual harassment.
Under these circumstances, we find that the Respon-
dent met its burden under Wright Line of showing that it
would have discharged Romero, even absent his union
activity, for his repeated violations of its sexual harass-
ment policy. Accordingly, we shall dismiss this allega-
tion of the complaint.
II. DISCHARGE OF OLGA LOPEZ
We also reverse the judge’s finding that the Respon-
dent violated Section 8(a)(3) and (1) by laying off em-
ployee Olga Lopez. Lopez was employed as a safety
clerk in the Respondent’s human resources department
from April 1999 to August 1. Her duties included con-
ducting safety training, distributing safety equipment,
performing first aid, completing medical authorization
forms, investigating work injuries, assisting employees in
the completion of workers compensation forms, and or-
dering first aid supplies. On July 9, Strauss altered Lo-
pez’ duties, including removing Lopez’ responsibility for
employee files and sending injured employees to the
medical clinic. Strauss informed Lopez that her duties
were changing because of a “negative change” the Re-
spondent had toward Lopez. Strauss also stated that dur-
ing Strauss’ maternity leave, a lot of information had
filtered out of the human resources office and employees
were complaining of the Union visiting their homes. Lo-
pez’ remaining duties were to distribute safety equip-
ment, perform first aid, and conduct safety training. The
judge found that the Respondent violated Section 8(a)(3)
by reducing Lopez’ duties.
Also in July, the Respondent’s vice president, Mike
Hill, formulated a plan for layoffs due to a 50-percent
decline in sales. He gave his managers, including Human
Resource Manager Gabriella Strauss, the option of laying
off 20 percent of their work force or cutting all employ-
ees’ pay by 20 percent.13 The human resources depart-
ment had a total of five employees: Strauss, Lopez, As-
sistant Manager Montes, payroll clerk Isabella,14 and
Hilary Gonzalez, a part-time, temporary clerk hired to
assist in the department during Strauss’ maternity leave.
Strauss chose to lay off both Lopez and Gonzalez. Gon-
zalez resigned prior to the layoff. Strauss informed Lo-
pez on August 1 that the Respondent was conducting a
layoff and Strauss was going to have to let her go. Lopez
responded that she understood and left. Plantwide, ap-
proximately 80 employees were laid off on August 1.
The Respondent did not fill Lopez’ position. Instead, her

13 It is clear that each department would be cut by 20 percent under
the first option.
14 The record does not reveal Isabella’s last name.
duties were absorbed by the remaining human resources
staff.
We agree with the judge’s finding, for the reasons he
set out, that the Respondent violated Section 8(a)(3) by
reducing Lopez’ duties on July 9 based on her perceived
union activities.15 The judge also found that the Respon-
dent violated Section 8(a)(3) and (1) by laying off Olga
Lopez. We assume, arguendo, that the General Counsel
satisfied his initial burden under Wright Line of estab-
lishing that Lopez’ perceived union activity was a moti-
vating factor in the decision to include her in the layoff.
Contrary to the judge, however, we find that the Respon-
dent met its Wright Line burden of demonstrating that it
would have laid off Lopez in any event.
As noted above, the Respondent’s decision to lay off
Lopez was part of a plantwide layoff of about 80 em-
ployees. There is no claim that this layoff was unlawfully
motivated. To the contrary, it is undisputed that the lay-
offs were a necessary response to declining sales and
revenue. It is equally clear that the Respondent did not
need Lopez in order to meet its human resources re-
quirements. Strauss and Hill both testified that Lopez’
position was created in 1999 when the Respondent’s
workforce reached at least 400 employees, and the Au-
gust 1 layoff resulted in a significantly smaller work
force, making Lopez’ position unnecessary. Additionally,
Lopez’ duties were absorbed by remaining human re-
sources staff and the position was not reinstated.
Although this economic justification is compelling, the
judge rejected it. He concluded that the Respondent’s
economic defense was pretextual, because the human
resources department was only required to reduce its
personnel by 20 percent, and satisfied that requirement
with the departure of Gonzalez. Our dissenting col-
league similarly concludes that there was no economic
justification for the layoff of Lopez following the depar-
ture of Gonzalez. We disagree.
As shown above, the human resources department was
overstaffed even after Gonzalez resigned. Gonzalez was
hired as a part-time, temporary employee to help cover
the needs of the department during Strauss’ maternity
leave. Gonzalez stayed for a little while after Strauss
returned part time, but was not a permanent employee.
Gonzalez’ position was thus extraneous before the
planned layoff. In these circumstances, her resignation

15 The judge found that Olga Lopez did not engage in any union ac-
tivity. The Board has held, however, that an employer may violate Sec.
8(a)(3) if it discriminates against an employee in the belief that the
employee has engaged in union activities, even if the employer is mis-
taken. Handicabs, Inc., 318 NLRB 890, 897 (1995); Henning &
Cheadle, Inc. v. NLRB, 522 F.2d 1050, 1052 (7th Cir. 1975). The re-
cord indicates that the Respondent believed Lopez was engaging in
union activity.
KRYSTAL ENTERPRISES 231
did not meet the Respondent’s 20-percent force reduction
goal for the human resources department.
We also disagree with our dissenting colleague’s view
that the Respondent selected Lopez for layoff because of
her perceived union activities. The safety clerk position
held by Lopez was created about 1999 to meet the needs
of the Respondent’s work force at that time. With the
layoffs, the number of production employees dropped
below the 1999 levels, making the safety clerk position
once again unnecessary. Having established that there
was no longer a need for Lopez’ position, and that it was
legitimately seeking to significantly reduce its payroll
expenses, the Respondent met its rebuttal burden under
Wright Line of showing that it would have included Lo-
pez in the layoff regardless of her perceived union activ-
ity.16 Accordingly, we shall dismiss this allegation of the
complaint.
ORDER
The National Labor Relations Board orders that the
Respondent, Krystal Enterprises Inc., Brea, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Disciplining or otherwise discriminating against
any employee for supporting United Food and Commer-
cial Workers Union, Local 324, or any other union.
(b) Coercively interrogating any employee about their
union support or union activities.
(c) Threatening any employee for supporting United
Food and Commercial Workers Union, Local 324, or any
other union.
(d) Creating the impression that employees’ union ac-
tivities are under surveillance.
(e) Denying employees access to union representa-
tives.
(f) Maintaining an overly broad no-solicitation/no-
distribution rule.
(g) 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) Make Ricardo Romero whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of the decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful warnings and
suspension of Ricardo Romero, and within 3 days there-
after, notify him in writing that this had been done and

16 In selecting Lopez for layoff, the Respondent did not rely on her
reduced duties. As noted above, that reduction is found to be unlawful.
that the warnings and suspension will not be used against
him in any way.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility in Brea, California, copies of the attached no-
tice marked “Appendix.”17 Copies of the notice, on
forms provided by the Regional Director for Region 21,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. This notice shall be
posted in English and Spanish. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current and former employees employed by the
Respondent at any time since January 2001.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
MEMBER LIEBMAN, dissenting in part.
The Respondent targeted Ricardo Romero and Olga
Lopez for phony discipline or other punishment, and
ended up discriminatorily terminating both of them.
Romero was discharged because he was a union activist
(and not because he engaged in sexual horseplay, which
was rampant—and tolerated–in the workplace here).
Lopez was laid off because the Respondent suspected
that she was the cousin of a union activist and that she
was aiding the Union’s organizational campaign (and not

17 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD232
for economic reasons, which had evaporated). Despite
finding other unlawful retaliation against Romero and
Lopez, my colleagues curiously accept the Respondent’s
defense of its actions, which simply do not bear up under
scrutiny.1
A. Romero’s Discharge
1. Overview
Romero was an open and active union supporter. From
the very start of his participation in the Union’s organiz-
ing campaign in January 2001, he was targeted by the
Respondent for unlawful retaliation, as our decision to-
day finds.2 Ultimately, he was discharged, assertedly for
engaging in sexual horseplay in violation of the Respon-
dent’s written policy against sexual harassment. As the
record makes clear, however, the Respondent tolerated
virtually identical sexual horseplay and misconduct in
the workplace by many other employees and supervisors
alike.3 If ever there was a case of disparate treatment, this
is it.
2. Sexually oriented horseplay and misconduct was
generally tolerated
Sexually oriented horseplay and misconduct was ram-
pant in this plant among employees and supervisors, and
was well known to—and generally tolerated by—
management. The judge describes this fully in his deci-
sion.4 He paints a vivid picture (parental guidance sug-
gested): incidents of simulated fellatio; pervasive sexual
profanity (including by Plant Manager Vitelli); display of
pornography by employees as well as periodically by a
supervisor to employees on the supervisor’s computer at
work; e-mailing of sexually harassing material between
supervisors at work; a supervisor’s printing of that mate-
rial at work, as well as sending it to two of the Respon-
dent’s vendors; a supervisor’s printing at work and dis-
tributing to employees an e-mail titled “Top 10 Sexual
Positions”; the same supervisor distributing pornographic

1 My colleagues and I agree that the judge correctly found that the
Respondent violated Sec. 8(a)(1) of the Act by: threatening to retaliate
against employees for engaging in union activity; interrogating em-
ployees about their and other employees’ union activity; creating the
impression that employees’ union activity were under surveillance;
denying employees access to union representatives during a union rally;
and promulgating and maintaining an overly broad no-solicitation, no-
distribution rule. We also agree that the judge correctly found that the
Respondent violated Sec. 8(a)(3) and (1) of the Act by disciplining and
suspending Romero for engaging in union activity and by reducing
Lopez’ work duties because the Respondent believed she was engaging
in union activity.
2 All dates are 2001, unless stated otherwise.
3 The Respondent’s written policy against sexual harassment is con-
tained in its employee manual, and is set out by the judge in sec.
II,A,4,d of his attached decision.
4 Secs. II,A,4,d and B,2,d of his attached decision.
material at work; and an employee displaying this same
pornographic material to other employees at work.
Of particular relevance to Romero’s discharge, the
judge recounted how employees and supervisors (includ-
ing on occasion Plant Manager Vitelli and Supervisor
Luis Alvarez) frequently playfully touched each other on
the buttocks and genitals, sometimes in the presence of
other supervisors, again including Vitelli and Alvarez,
and Human Resources Assistant Montes. On one occa-
sion, Montes and security guard Flavio Rivera observed
employees mimicking sexual activity in the body shop
department. Montes laughed and neither he nor Rivera
made any effort to get the employees to stop. Another
time, Vitelli himself touched employee Javier Garcia on
the buttocks. Vitelli did the same thing to employee
Martin Lizarraga, who was bent over looking inside a
limousine, and employee Jose Zamarron, who was bent
over buffing a car. On another occasion, during a con-
versation between Vitelli and Rivera in Rivera’s office,
Rivera turned around and Vitelli inserted his radio an-
tenna between Rivera’s buttocks in an upward thrusting
motion. Similarly, Alvarez placed his radio antenna on
the buttocks of purchasing clerk Carmen Von Puschen-
dorf.
Each time Project Manager Jeff Brown visited the
parts department, he grabbed employee Jose Alberto
Espinosa’s genitals. On another occasion in the parts
department, Brown sat on employee de la Cruz’ lap and
rotated his pelvis, simulating sexual activity. At least
twice, employee Alberto Vela grabbed Supervisor Ken
Trotter from behind and moved his pelvis in and out.
Trotter did not attempt to stop Vela either time. Supervi-
sor Cesar Delgado regularly grabbed employees on the
buttocks and genitals, and pretended to kiss them.
Leadman Mauricio Machuca twice grabbed employ-
ees’ buttocks. The employees objected, and complained
to Trotter on both occasions. While Trotter admonished
all of the wood shop employees to stop this type of mis-
conduct, he took no formal action against Machuca him-
self, and he did not report either incident to higher man-
agement.
Between January 1 and May 7, employee Nestor San-
chez observed employees in the parts department, includ-
ing Romero, engage in the type of sexual horseplay gen-
erally described above about 20-25 times each day. He
never reported any of this conduct to Vitelli or to any
other supervisors or managers.
3. Romero is targeted for retaliation for his
union activity
In January, security guard Rivera reported to Plant
Manager Vitelli that Romero was getting employees’
phone numbers so that the Union could contact them.
KRYSTAL ENTERPRISES 233
Vitelli called employee Juan Rodriguez into Vitelli’s
office and, with Rivera present, asked Rodriguez whether
Romero was in the Union and why Romero was asking
for Rodriguez’ phone number. Vitelli told Rodriguez
that “we don’t want the Union in.” Rodriguez replied that
Romero had also spoken to employee Juan Luis
Quintana. After dismissing Rodriguez, Vitelli had
Rivera bring Quintana to Vitelli’s office. Vitelli asked
Quintana why Romero was trying to get in touch with
Quintana. After dismissing Quintana, Rivera told Vitelli
to see what Vitelli could do to “get rid” of Romero, be-
cause Romero was enlisting support for the Union.
Vitelli told Rivera that Vice President/Chief Financial
Officer Mike Hill and Human Resources Manager
Strauss would “take care of it.” Later that month, Rivera
again told Vitelli to “get rid” of Romero. Vitelli replied,
“I wish I could but I need evidence.”
In February, Vitelli told Rivera to call him on the radio
every time that Rivera saw Romero speaking to employ-
ees. On February 7, while on his lunchbreak in the park-
ing lot, Romero and a fellow employee were engaged in
horseplay, calling each other profane names and pretend-
ing to fight. Unknown to Romero, Human Resources
Manager Strauss overheard the profanity. She was em-
barrassed, and assertedly thought that the profanity vio-
lated the Respondent’s sexual harassment policy.5
Shortly thereafter, Strauss and Inventory Control Man-
ager Dieter Von Puschendorf held a conference with
Romero and issued him a warning for using profanity.
The Respondent’s record of employee conference about
this incident states in pertinent part that:
Employee [Romero] must respect other employees by
respecting the workplace. Employee must refrain from
the use of abusive and offensive language (cursing).
This is considered an offensive behavior.6
Neither Strauss nor Von Puschendorf, however, disciplined
the other employee involved in the incident.7 In fact, after
Romero apologized to Strauss for using bad language in her
presence, Von Puschendorf told Romero not to worry about
the warning because Strauss was “full of shit.”

5 Strauss’ sensibilities are, however, called into question by her ex-
press reference to her human resources predecessor as a “[f—king] old
lady.”
6 Thus, contrary to my colleagues’ characterization of this warning
(and the judge’s characterization of it in sec. II,A,3,a of his attached
decision), the warning was clearly not for violating the Respondent’s
sexual harassment policy. It was for cursing, with no mention at all of
sexual harassment.
7 Indeed, the use of profanity by and between employees and super-
visors was pervasive and almost entirely undisciplined. See the final
two paragraphs of sec. II,A,4,d of the attached judge’s decision.
On March 9, and again on March 22, the Respondent
gave Romero pretextual written warnings in retaliation
for his union activity, as the Board finds today. On
March 26, Romero gave Vitelli a letter stating that Ro-
mero was engaging in organizing activity on behalf of
the Union. On April 10, Vitelli told Romero that several
employees had said that Romero asked them to sign
something for the Union. Vitelli told Romero “If I don’t
[f—k] with your family, don’t [f—k] with mine,” an
unlawful threat we unanimously find.
In early May, Supervisor Alvarez asked parts depart-
ment employee Luis Gallegos whether Romero had spo-
ken to Gallegos about the Union while Romero was re-
turning defective parts. Later that day, Gallegos was
called into Vitelli’s office, with Alvarez present. Vitelli
asked Gallegos where he had been going with Romero
when Vitelli spotted them together in Gallegos’ car.
Vitelli also asked Gallegos whether Romero had spoken
to Gallegos about the Union during “working hours,” and
whether Gallegos knew whether Romero spoke to other
employees about the Union. We unanimously find both
interrogations unlawful.
On May 7, employees Jesus Gutierrez and Rene An-
guiano told their supervisors that Romero had been
speaking to them about the Union. Later that day, An-
guiano was called into a meeting with Vitelli and Human
Resources Assistant Montes. Vitelli asked Anguiano
when and how often Romero had been talking to him.
Anguiano replied that Romero had often spoken to him
about the Union, as well as about work and other topics,
that Romero visited Anguiano’s department two or three
times per week for about 10–15 minutes, during break-
time and worktime, but Anguiano could not say which
topics Romero discussed during breaktime and which
topics he discussed during worktime.
Later the same day, as the Board finds unanimously,
the Respondent discriminatorily suspended Romero for
pretextual reasons in retaliation for his union activity.
After Romero was unlawfully suspended, Plant Manager
Vitelli, security guard Rivera, and Romero’s immediate
supervisor, Javier Garcia, all escorted Romero from the
plant to the parking lot. On the way to the parking lot,
Vitelli walked behind Romero and repeatedly kicked
Romero’s feet. When they reached Romero’s car, Vitelli
told Romero he had 1 minute to get off the premises. As
Rivera and Vitelli walked back to the facility, Vitelli
asked Rivera, “Did you see me? I kicked that [f—ker]
and he didn’t do anything about it.”
As this recitation illustrates, and the Board finds
unanimously, between January and May 7 (3 days before
Romero’s discharge, discussed below), the Respondent:
(1) repeatedly unlawfully interrogated employees about
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD234
Romero’s union activity; (2) unlawfully threatened Ro-
mero if he continued to participate in union activity; and
(3) unlawfully retaliated directly against Romero for his
continued participation in union activity. By May 10, all
that was left for the Respondent to do to Romero was to
get rid of him.
4. Romero’s discharge
The judge correctly found that on May 10 the Respon-
dent’s course of unlawful conduct towards Romero cul-
minated with his discharge. The majority, however,
finds that the Respondent lawfully discharged Romero
for—of all things in this workplace—sexual harassment.
a. Facts leading up to Romero’s May 10 discharge
On May 4, the Respondent held a Cinco de Mayo party
for its employees from about noon to 3 p.m. in the park-
ing lot. During the party, Plant Manager Vitelli and Su-
pervisors Alvarez and Marines saw Romero grab two or
three employees from behind and push his pelvis against
them. The employees themselves did not complain to the
Respondent about this, and no one took any immediate
action against Romero for it, or indeed even mentioned it
to him.
About an hour later, however, after the party had
ended, Alvarez went to where employee Nestor Sanchez
was eating and asked him if he had seen Romero “doing
that stuff to the persons in the crowd.” Sanchez replied
that he had, but that it was a “regular thing” for Romero
and that Sanchez had seen him do it “a lot of times.”
At this point, even though Sanchez was not involved in
any way in the incident in question, and even though
Alvarez and Vitelli had witnessed the incident them-
selves, Alvarez suggested that Sanchez file a sexual har-
assment complaint against Romero. Specifically, Alva-
rez asked Sanchez if he thought Romero’s conduct was
proper. Sanchez replied that he did not think it was right,
and that it was not something that should be done in pub-
lic. Alvarez said that if Sanchez did not think that Ro-
mero’s conduct was right, “I think you should file a re-
port.” Alvarez then offered to accompany Sanchez to
Vitelli’s office. When they got there, Alvarez said to
Sanchez, “Why don’t you tell [Vitelli] what you saw?”
(which, of course, was the same thing that Vitelli and
Alvarez themselves had seen an hour and a half before,
without saying anything to anyone else about it). San-
chez told Vitelli that he had seen Romero “grabbing peo-
ple from behind and trying to pull them and stuff like
that.” Vitelli asked Sanchez whether he had seen Ro-
mero do that before, and Sanchez replied that he had, and
that it was a “common thing” for Romero: “Every time I
would see him or I would see him around where I used to
eat, he would do that to someone.” Sanchez also told
Vitelli that he had seen at least four or five other em-
ployees in addition to Romero (Sanchez named Artiaga,
de la Cruz, Valpuesta, and Bonilla) touch other employ-
ees’ genitals and buttocks on many occasions, and that it
was an everyday occurrence.8 Vitelli said that if Sanchez
wanted to file a report, he should go to the human re-
sources department. Sanchez agreed to think about it
over the weekend.
Three days later, on May 7, Vitelli, as described above,
separately unlawfully interrogated Gutierrez and An-
guiano about Romero’s union activity, and discriminato-
rily suspended Romero because of his union activity.
The same day, Sanchez told Vitelli that Sanchez was
“ready to file a report about it.” Vitelli accompanied
Sanchez to the human resources department to file a re-
port about Romero. Vitelli stayed with Sanchez in Mon-
tes’ office in the human resources department. Sanchez
told Montes and Vitelli that he had seen the people in the
parts department “grabbing each other, holding each
other, their privates, their behinds, and sometimes . . .
almost trying to kiss each other.” Sanchez again named
Ivan Artiaga, de la Cruz, Miguel Valpuesta, Rafael
Bonilla, and Romero, with Valpuesta and Romero being
the “main instigators.”9 Sanchez’ May 7 report to Vitelli
and Montes was apparently only an oral report. There is
no copy of or reference to any written report of this mat-
ter in the record.
In any event, Montes and Vitelli conducted an “inves-
tigation” of Sanchez’ report. They interviewed 15 em-
ployees. They never interviewed Romero. The investi-
gation confirmed that it was common practice in the
parts department for employees to touch each other in a
sexual manner and to use profane and obscene language.
b. Analysis and conclusion
The Respondent engaged in a 4-month course of
unlawful activity aimed at Romero, culminating in his
discriminatory suspension 3 days before his May 10 dis-
charge. The majority nevertheless concludes that, at the
very end, the Respondent proved that it would have law-
fully discharged Romero for “sexual harassment” even if

8 Sanchez described the conduct to Vitelli as employees “grabbing
their privates . . . grabbing each other . . . mostly in front of people . . .
rubbing each other and lifting one leg up . . . just kind of like trying to
have sex with them with their clothes on . . . running their thumb up
their behind . . . just the regular stuff they do.”
9 Indeed, Sanchez also told Montes and Vitelli at this May 7 meeting
that (1) about a year and a half earlier, in about November 1999, while
Sanchez was walking in the plant, Valpuesta grabbed Sanchez from
behind and tried to “pull his middle finger up my behind,” and (2)
about 7 months earlier, in about October 2000, while Sanchez was
making copies, Romero grabbed him from behind and “ran his hand up
my behind.” Sanchez did not, however, report either of these incidents
to the Respondent before this May 7 meeting with Vitelli and Montes.
KRYSTAL ENTERPRISES 235
he had not engaged in any of the union activity that
caused the Respondent to treat him unlawfully right up to
3 days before it discharged him. They accept the Re-
spondent’s position that Romero’s conduct at the Cinco
de Mayo party (which assertedly prompted Sanchez’
report, which in turn assertedly led to the Respondent’s
investigation) violated the Respondent’s sexual harass-
ment policy. The record rules out the majority’s conclu-
sion.
As the judge found, the Respondent’s sexual harass-
ment policy was a sham, regularly dishonored by em-
ployees and supervisors alike, and the Respondent’s as-
sertion that it discharged Romero for violating its sexual
harassment policy was a pretextual attempt to mask its
discharge of Romero because of his union activity. Ro-
mero’s misconduct at the party, while arguably in viola-
tion of the Respondent’s written policy, was in fact no
more than par for the course. Romero’s discharge re-
flected disparate treatment, revealing the Respondent’s
overriding motive here.10
Meanwhile, the record makes clear that Sanchez’ re-
port of the Cinco de Mayo incident was itself trumped up
by the Respondent as a pretext to get rid of Romero, only
3 days after unlawfully suspending him in retaliation for
his union activity. Vitelli and Alvarez themselves ob-
served Romero engaging in sexual horseplay at the party.
Yet, they did nothing at that time to stop it or even men-
tion it to him. Rather, they waited for about an hour after
the party had ended and then began to cajole Sanchez
into making a report.11 My colleagues say that Sanchez
made his May 7 report about Romero because Sanchez
felt uncomfortable and complained that Romero’s con-
duct was affecting Sanchez’ ability to do his job. But by
Sanchez’ account, he witnessed approximately 1800 in-
cidents of sexual horseplay and misconduct during the 4-
month period prior to his May 7 report about Romero,
and he was himself the target of two earlier incidents of
sexual misconduct. Sanchez never complained to man-
agement about any of this until he was induced by to
Alavarez and Vitelli to make his May 7 report about
Romero.

10 See Joseph Chevrolet, Inc., 343 NLRB 7 (2004) (disparate treat-
ment where other employees who committed similar offenses were not
immediately discharged); Jack in the Box Distribution Center Systems,
339 NLRB 40, 53–54 (2003) (section styled “6. Disparate treatment”);
SCA Tissue North America, LLC, 338 NLRB 1130, 1137 (2003) (other
employees disciplined in less severe way for considerably more egre-
gious conduct), enfd. 371 F.3d 983 (7th Cir. 2004); La Gloria Oil &
Gas Co., 337 NLRB 1120, 1124 (2002) (employer had a practice of not
disciplining drivers for driving infractions) affd. mem. 71 Fed. Appx.
441 (5th Cir. 2003).
11 Perhaps Vitelli and Alvarez did not think they, in good faith, could
report Romero’s misconduct at the party because they themselves had
engaged in similar sexual horseplay on other occasions.
Nevertheless, the majority finds that the Respondent
established that it would have discharged Romero for
violating the sexual harassment policy, even in the ab-
sence of his union activity. They find that whenever
anyone filed a sexual harassment complaint, the Respon-
dent investigated it and took action. But the Respon-
dent’s claim, that in investigating Romero it was simply
acting consistently with its practice of investigating
complaints from employees, is disingenuous. The record
clearly establishes that several of its supervisors and
managers witnessed first-hand, and even participated in,
some of the abundant sexual horseplay and misconduct
involved in this case. The Respondent cannot, therefore,
seriously claim that the reason it did not take action in or
even investigate those other incidents of sexual horseplay
and misconduct was because no one complained about
them. Because much of that misconduct was witnessed
by and participated in by the Respondent’s supervisors
and managers, no complaint from an employee was
needed to alert the Respondent to the misconduct.
The majority also accepts the Respondent’s claim that
in investigating Romero, it was simply investigating
Sanchez’ report. But the record establishes that the Re-
spondent itself orchestrated that report from the very
beginning, for the same unlawful reason that it had sus-
pended and warned Romero earlier.
The Respondent’s assertion, endorsed by my col-
leagues, that its discipline of some other employees for
similar sexual misconduct legitimizes its discipline of
Romero, is also unavailing. The record establishes that
much, if not most, of the sexual horseplay and miscon-
duct of the type that Romero was found to have engaged
in went undisciplined, even though the Respondent was
aware of it. The real question is not whether Romero
was treated similarly to the other employees who were
disciplined as a result of the investigation in question,12
but rather whether Romero was treated differently from
the many other employees (as well as managers and su-
pervisors) who engaged in sexual horseplay and miscon-
duct known to the Respondent, but who were never dis-
ciplined.13 As the Board has observed, “It is not un-

12 See, e.g., KOFY TV-20, 332 NLRB 771 (2000) (examples of ar-
guably similar treatment not enough to rebut significant showing of
disparate treatment).
13 See Becker Group, Inc., 329 NLRB 103, 104 (1999) (Jennings’
warning for using vulgar language and gestures toward shop steward
was pretextual where employer tolerated regular use of vulgar language
and gestures in the workplace by employees and supervisors alike;
“[T]he record is replete with evidence that the use of profanity and
obscene gestures between employees, and even between supervisors
and employees, is rampant at the facility.”); Carry Cos. of Illinois, 311
NLRB 1058, 1067 (1993) (discharge of union supporter for urinating
outside on employer’s premises was disparate treatment where record
established that it was common practice for employees and supervisors
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD236
common for an employer to discipline some of its em-
ployees in order ‘to give credence to its pretextual rea-
sons’ for disciplining other employees whom it has
unlawfully targeted.” Koronis Parts, Inc., 324 NLRB
675, 675 fn. 1 (1997). For all of the reasons discussed, it
seems obvious that Romero was treated differently be-
cause of his union activity.
B. Lopez’ Termination
I disagree with the majority that Lopez was lawfully
laid off for economic reasons; instead, I would adopt the
judge’s finding that Lopez was unlawfully laid off be-
cause of her perceived union activity.
1. Background
Lopez was the safety clerk in the human resources de-
partment. The Board has found unanimously that the
Respondent discriminatorily took away many of her job
duties in early July, including particularly her access to
employee personnel files, because it believed that she
was engaging in union activity and providing employee
addresses to the Union.
More specifically, when Human Resources Manager
Strauss discriminatorily reduced Lopez’ job duties on
July 9, she told Lopez that the reduction in duties was
because of a “negative change” the Respondent had to-
ward Lopez. Lopez asked Strauss if the reason her duties
were being reduced was because the Respondent be-
lieved that she was Jorge Romero’s cousin.14 Strauss did
not deny to Lopez that that was the reason, but instead
simply told Lopez that she could not prove that it was.
On July 16, Supervisor Raphael Rodriguez told em-
ployee Guadalupe Hernandez that the Respondent knew
that Hernandez was a union supporter, and asked Her-
nandez if she knew whether Lopez was Jorge’s cousin.
Around this time also, Rodriguez told Lopez that Vitelli
had earlier asked Rodriguez if he knew whether Lopez
was Jorge’s cousin. (Vitelli suspected that Lopez was
providing the Union with employee addresses.) Rodri-
guez also told Lopez that the Union was becoming strong
and that management was concerned. The next day, July
17, Vitelli asked security guard Rivera whether he
thought that Lopez was involved with the Union. Vitelli
then told Rivera that Jorge and Ricardo Romero were to
blame for getting the Respondent into the union “mess.”

to urinate outside on employer’s premises, without being disciplined for
doing so), enfd. 30 F.3d 922 (7th Cir. 1994).
14 Jorge was a former employee of the Respondent in the human re-
sources department who had been discharged in January. He was also
discriminatee Ricardo Romero’s brother. The Respondent knew that
Jorge was active in the Union’s organizational campaign following his
discharge, during the time of the events herein.
About 2 weeks later, on August 1, the Respondent laid
off Lopez.
2. Lopez’ layoff
a. Facts
During the first week in July, higher management told
the department managers that there needed to be a plant-
wide reduction in costs. The managers, including
Strauss, were required to choose between either reducing
the workweek of everyone in their departments from 40
to 32 hours (a 20-percent reduction in wage and salary
expense) or laying off 20 percent of the people in their
department (a 20-percent reduction in force). Strauss
decided to have a 20-percent layoff in the human re-
sources department rather than cut the wages of everyone
in the department 20 percent across the board. Accord-
ingly, Strauss would have to lay off one of the five peo-
ple in her department in order to meet the required 20-
percent reduction in force.
Five people were assigned to the human resources de-
partment at the time of the July events in question: Man-
ager Strauss, Assistant Manager Montes, safety clerk
Lopez, payroll clerk Isabella, and human resources clerk
Gonzalez (a temporary employee). Fortuitously, how-
ever, Gonzalez quit on July 24. The human resources
department thus achieved its required 20-percent reduc-
tion in force without the need for a layoff. (As the judge
found, the Respondent did not attempt to show that the
resignation of Gonzalez, as a temporary employee, did
not count toward the 20-percent force reduction quota.)
But on August 1, Strauss laid off Lopez anyway, with
no advance notice, effective immediately.
b. Analysis and conclusion
The Respondent offered no explanation for why
Strauss laid off Lopez even after the human resources
department achieved its required 20-percent reduction in
force when Gonzalez resigned a week earlier. Conse-
quently, the judge correctly found that the Respondent
had not met its rebuttal burden of proving that it would
have laid off Lopez even in the absence of its perception
that Lopez was engaged in union activity. I agree.
In finding to the contrary, the majority relies on the
fact that the plantwide layoff of about 80 employees (of
which the layoff in the human resources department was
one small part) was not alleged to be discriminatorily
motivated. But that is quite beside the point.15 Lopez’
layoff was only indirectly brought on by the general de-
cision to have a plantwide layoff. Her layoff was the

15 See Merrill Iron & Steel, 335 NLRB 171, 173–174 (2001) (the
fact that underlying layoff decision was motivated by business neces-
sity does not preclude finding that selection of particular employees for
layoff was discriminatorily motivated).
KRYSTAL ENTERPRISES 237
direct result of Department Manager Strauss’ particular
decision to lay off Lopez even though the department
itself did not need to lay off anyone in order to achieve
the required 20-percent reduction in force within the de-
partment.
Nor is Lopez’ layoff explained by the fact, relied on by
the majority, that the human resources department was
apparently able to function without her, or the assertion,
offered by my colleagues, that the human resources de-
partment was “overstaffed” even after Gonzalez’ resigna-
tion. Again, these suggestions miss the point. Lopez was
not laid off because the department could get along
without her; she was laid human resources off in the
course of the plantwide reduction in force, even though
her department had already met its reduction in force
quota a week before Lopez was laid off.
There is no basis, then, for concluding that the Re-
spondent would have laid off Lopez, even in the absence
of her perceived union activity.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discipline or otherwise discriminate
against any of you for supporting United Food and
Commercial Workers Union, Local 324, or any other
union.
WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT threaten any employee for supporting
United Food and Commercial Workers Union, Local
324, or any other union.
WE WILL NOT create the impression that employees’
union activities are under surveillance.
WE WILL NOT deny employees access to union repre-
sentatives.
WE WILL NOT maintain an overly broad no-
solicitation/no-distribution rule.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make Ricardo Romero whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warnings and suspension of Ricardo Romero, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the warnings and suspension
will not be used against him in any way.
KRYSTAL ENTERPRISES INC.
Lisa McNeil, Esq. and Sonia Sanchez, Esq., for the General
Counsel.
Erick Becker, Esq. and Robert Long, Esq. (American Consult-
ing Group, Inc.), of Costa Mesa, California, for the Re-
spondent.
Jay Smith, Esq. (Gilbert & Sackman), of Los Angeles, Califor-
nia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Los Angeles, California, on February 25 to March
1, March 18 to 21, and March 25 to 28, 2002, upon the General
Counsel’s consolidated amended complaint issued January 30,
2002, which alleges that Krystal Enterprises, Inc. (Respondent)
committed certain violations of Section 8(a)(1)1 and (3) of the
National Labor Relations Act (the Act). Respondent timely
denied any wrongdoing.
Issues
1. Did Respondent threaten employees with unspecified re-
prisals in retaliation for engaging in union activities in violation
of Section 8(a)(1) of the Act?
2. Did Respondent interrogate employees about their and
other employees’ union activities in violation of Section 8(a)(1)
of the Act?
3. Did Respondent threaten employees with suspension in
retaliation for engaging in union activities in violation of Sec-
tion 8(a)(1) of the Act?
4. Did Respondent create the impression that its employees’
union activities were under surveillance?
5. Did Respondent deny its employees access to union rep-
resentatives by blocking and closing facility exits in violation
of Section 8(a)(1) of the Act?
6. Did Respondent promulgate and maintain an overly broad
no-solicitation/no-distribution rule in violation of Section
8(a)(1) of the Act?
7. Did Respondent warn, suspend and terminate Roberto
Rivera in violation of Section 8(a)(3) of the Act?

1 At the hearing counsel for the General Counsel’s motion to strike
8(a) and 9(a) allegations of the consolidated amended complaint was
granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD238
8. Did Respondent reduce the work responsibilities of Olga
Lopez and subsequently terminate her in violation of Section
8(a)(3) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by counsel for the General Counsel, counsel for Charging Party
and counsel for Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a California corporation, manufactures
limousines, buses, and funeral cars at its facility in Brea, Cali-
fornia, where it annually sells and ships goods valued in excess
of $50,000 directly to points outside the State of California.
The Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that United Food and Commercial
Workers Union, Local 324, AFL–CIO (the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent manufactures limousines, buses, and funeral cars
at its facilities in Brea, California. The main facility where
most of the events in this case occurred is located on Imperial
Highway and is referred to as the Imperial Building. A second
building located on Kraemer Street, a few blocks from the Im-
perial Building, is referred to as the Kraemer Building. Re-
spondent’s management team consisted of Ed Grech (Grech),
president and CEO, John Beck (Beck), the executive vice
president, and William Michael (Mike) Hill (Hill), the vice
president and chief financial officer (CFO). Hill reported to
Grech and Beck. Hill supervised Plant Manager Dominick
Vitelli (Vitelli), Human Resources Manager Gabriella Strauss
(Strauss), and Purchasing Manager Rick Von Ahn (Von Ahn).
During 2001, Flavio Montes (Montes) was the human resources
assistant.2 As plant manager of both the Imperial and Kraemer
facilities, Vitelli’s duties included oversight of the production
facilities and coordination with production managers and lead-
men in order to timely manufacture the vehicles. Vitelli’s pro-
duction assistant was Hector Tirado (Tirado).
At the Imperial building the vehicles were manufactured on
production lines in several discrete departments, each with a
supervisor. During late 2000 to August 2001, at the Imperial
facility, Respondent operated production lines “A,” “B,” and
“C.” Each line employed about 100 employees. In total, prior
to August 20013 Respondent employed over 500 production
employees. Respondent manufactured limousines on produc-
tion line “A,” hearses on production line “B,” and shuttle buses
on production line “C.” The vehicle fabrication process com-
mences in the welding department, supervised by Florentino
Morales (Morales). In the welding department the vehicle is

2 Montes’ duties included prescreening applicants, administering the
medical/dental coverage, assisting employees with completing 401(K)
forms, and assigning work tools.
3 All dates are in 2001, unless otherwise stated.
cut in half, the center stretch piece is inserted, and the vehicle is
reassembled. Doors are also installed in the welding depart-
ment. The vehicle then proceeds to the mechanical department,
supervised by Ken Thioulen (Thioulen). Next, the vehicle goes
to the body and paint department, supervised by Benito Rodri-
guez. The vehicle then proceeds to the electrical department,
supervised by Manuel Martinez. After that the vehicle moves
to the trim department, supervised by Martine Ramirez. In the
trim department employees continue the process of assembling
the vehicle after it has been painted and wired.4 Next, the vehi-
cle travels to the upholstery department and final assembly,
supervised by Luis Alvarez (Alvarez) and Geraldo Flores.
Finally, the vehicle goes to the detail department, supervised by
Geronimo Ochoa (Ochoa). In the detail department, the em-
ployees clean the vehicles before they are shipped out.
Respondent has other production employees not on the pro-
duction line. Dieter Von Puschendorf (Von Puschendorf) and
Raul Martinez (Martinez) supervised the parts department. Ken
Trotter (Trotter) supervised the wood shop department.5 Rob-
bie Jasper (Jasper) supervised the final bus assembly depart-
ment. Julie Blain (Blain) supervised the shipping department.6
Cesar Delgado (Delgado), supervised the carpentry department.
Gary Caccavalle (Caccavalle), Tyrone Threedouble (Threedou-
ble), and Jason Luevanos (Luevanos) supervised the service
department. Ralph Garcia (Garcia) supervised all the quality
control inspectors.
This case is not legally complex. Rather the outcome de-
pends on witness’ credibility. This case takes place in an as-
sembly plant where trucks and limousines are put together.
Respondent’s production employees are mainly Spanish-
speaking men without a great deal of education. From my ob-
servation of them while giving testimony, they appeared rough
and unsophisticated. General Counsel’s witnesses testified in a
manner that was inherently probable and uniformly consistent
about the day-to-day occurrences in their workplace. Thus,
General Counsel’s witnesses said it was commonplace for both
supervisors and employees to sell food, beverages, candy, and
jewelry throughout the workday; that both supervisors and
employees participated in sports betting pools; that both super-
visors and employees cursed and used vulgar language as part
of the regular vernacular; that both supervisors and employees
engaged in sexual horseplay in the form of touching employ-
ees’ private parts and telling sexual jokes and; that both super-
visors and employees passed around pornographic material. On
the other hand, Respondent called a succession of witnesses
who would have me believe that the Little Sisters of the Poor
ran Respondent’s facility. These witnesses testified unbelieva-
bly that neither they nor any other employee ever used profan-

4 The trim department is where the headlights, grill, and taillights
were put on the vehicle.
5 During the first half of 2001, Trotter supervised 52 to 53 employ-
ees in the wood shop department, which is located between the parts
and service departments. Respondent stipulated that Trotter is a super-
visor within the meaning of Sec. 2(11) of the Act.
6 Blain supervised the shipping department during the relevant pe-
riod in 2000 to 2001. At the time of the hearing, Blain no longer works
for Respondent.
KRYSTAL ENTERPRISES 239
ity7 and they never bought or sold so much as a bar of candy
while at work.8 Many of these witnesses were impeached on
cross-examination.9 Other witnesses proffered by Respondent
offered contradictory evidence when they admitted that they
used or heard profanity and observed sexual horseplay.10 Other
Respondent witnesses were reluctant, nonresponsive and hostile
in their testimony.11 I have not credited the testimony of Re-
spondent’s witnesses noted above and any contradictions in the
facts found below are resolved in favor of General Counsel’s
witnesses.
2. The union organizing campaign
In November 2000, the Union began an organizing campaign
among Respondent’s production employees at the Imperial and
Kraemer buildings. In support of the organizing campaign, in
November 2000, the Union began handbilling Respondent’s
employees outside the Imperial building. In response to the
Union’s campaign, in November 2000, Respondent began con-
ducting management meetings regarding the Union’s organiz-
ing effort.
On January 17, Jorge Romero, Respondent’s recently fired
human resources assistant,12 contacted union organizer Jose
Perez to assist in organizing Respondent’s employees. Both
Jorge Romero and his brother, Ricardo Romero, an employee in
Respondent’s quality control department, furnished Perez with
the home phone numbers of Respondent’s employees.
Commencing in January, in addition to furnishing employ-
ees’ phone numbers, Ricardo Romero handed out authorization
cards, handbilled outside the Imperial facility, and talked to
Respondent’s employees at work about the Union.
3. The 8(a)(1) allegations
a. The interrogations and threats
In January, Respondent’s security guard, Eddy Rivera, told
Plant Manager Vitelli he had seen Ricardo Romero talking to
fellow employee Juan Rodriguez in the break area and that
Romero was getting employees’ phone numbers so the Union
could call them. Vitelli called Rodriguez into a meeting and in
Eddy Rivera’s presence asked Rodriguez, “Is Jorge Romero in
the Union?” “What’s going on?” “Why is he asking for your
phone number?” Vitelli then stated, “He is in the union. We
have to stick together. We don’t want the Union in.” During

7 See testimony of Raphael Garcia, Florentino Morales, Jesus
Gutierrez, Rene Angiano, Martin Lizarraga, Geronimo Ochoa, and
Javier Garcia.
8 See testimony of Gabriella Strauss, Raphael Garcia, Florentino
Morales, Dieter Von Puschendorf, Jesus Gutierrez, Rene Angiano,
Geronimo Ochoa, Javier Garcia, Rafael Rodriguez, and Martin Lizar-
raga.
9 See testimony of Strauss, Morales, Von Puschendorf, Gutierrez,
Modesto Marines, Gilbert Delgado, Luis Alvarez, Raymundo Zuniga,
Raul Martinez, and Jeffrey Brown.
10 See testimony of Von Puschendorf, Ken Trotter, William Hill, Al-
cides Bonilla, Nestor Sanchez, Marines, Delgado, and Vitelli.
11 See testimony of Strauss and Rafael Rodriguez.
12 Jorge Romero was employed by Respondent as human resources
assistant from December 3, 1998, to January 2001. Strauss fired Jorge
Romero because it was against company policy for human resources
employees to have relatives working in the plant.
the meeting Rodriguez mentioned that Ricardo Romero had
also spoken to employee Juan Luis Quintana. After dismissing
Rodriguez, Vitelli told Rivera to bring Quintana to his office.
Vitelli asked Quintana, “Why is Jorge Romero trying to get in
touch with you?” Quintana said he did not know. After the
meeting with Quintana, Eddy Rivera told Vitelli, “See what you
can do to get rid of Ricardo Romero because he is getting num-
bers for Jorge for the Union.” Vitelli replied, “Don’t worry
Strauss and Hill will take care of it.” Later in January while
walking into the plant with Vitelli, Eddy Rivera said, “Get rid
of Ricardo.” Vitelli replied, “I wish I could but I need evi-
dence. If it was up to me, I would but upper management
won’t let me.”13
In February while in the detail area of the Imperial plant
Eddy Rivera told Vitelli he had seen Ricardo Rivera talking to
employees. Vitelli said, “Why didn’t you tell me? Every time
you see Ricardo talking to employees call me on the radio.”14
On February 7 at 10 a.m., Ricardo Romero was on his morn-
ing break at the lunch trucks in Respondent’s parking lot. He
was engaged in horseplay with a fellow employee, and both
were using some rather rough language. Unknown to Romero,
Strauss had come to the lunch truck and overheard the profan-
ity. According to Strauss, she was embarrassed and thought
Romero’s profanity violated Respondent’s sexual harassment
policy. Strauss immediately gave Romero a written warning
for violating Respondent’s sexual harassment policy. Romero
apologized for using the bad language in her presence. After
the meeting while walking back to work, Von Puschendorf told
Ricardo Romero not to worry about it because Strauss was “full
of shit.”15 No action was taken against the fellow employee.16
In early March, both Jesus Gutierrez (Gutierrez) and Rene
Anguiano (Anguiano), mechanics in Respondent’s service de-
partment, told their supervisors, Threedouble and Leuvanos,
that Ricardo Romero had been talking to them about the Union.
After complaining to Threedouble, Anguiano was called into a
meeting with Montes and Vitelli on March 7. Vitelli asked
Angiano how often Romero had been talking to him and when.
Anguiano said that Romero had been talking to him often about
the Union. According to Anguiano, Ricardo Romero visited
the service department two to three times a week for 10 to 15
minutes during breaks and worktime. Even though Romero
sometimes talked about the Union, Anguiano could not say
which topics Romero discussed during breaks versus during
worktime. In his interview by Vitelli and Montes, Gutierrez
said that over the proceeding 2-week period Ricardo Romero
had come by the service department during breaks, lunch, and

13 Vitelli denied interrogating any employee about their union activi-
ties or the activities of others. Unlike Vitelli, Rivera was a disinterested
witness with no axe to grind. His testimony was given in a manner free
of hyperbole or rancor. He was responsive to questions on both direct
and cross-examination. I will credit his testimony.
14 I credit Rivera’s testimony.
15 Von Puschendorf denied making this comment. I find Von
Puschendorf was an incredible witness who was trying to minimize his
participation in Respondent’s workplace culture of pornography, vul-
garity, and sexual permissiveness. I will credit Romero’s testimony.
16 The General Counsel has not alleged this warning as a violation of
the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD240
working time. Montes did not ask Gutierrez whether Romero
was talking about the Union during these visits.
Because Ricardo Romero felt he was being discriminated
against for engaging in union activity, he gave a letter to Vitelli
on March 26 that indicated he was engaged in organizing activ-
ity on behalf of the Union.17 Vitelli said he heard Romero was
in the Union and didn’t know why Romero was doing this after
all Vitelli had done for he and his brother, Jorge.
On April 10, Ricardo Romero was in Vitelli’s office. Vitelli,
responding to rumors that he had signed some paper dealing
with the Union, said, “Several employees said you asked them
to sign. If I don’t fuck with your family, don’t fuck with mine.
Don’t take food off my table. I don’t know why your brother is
stabbing me in the back.”18
After work on May 3 Ricardo Romero handed out union lit-
erature outside the Imperial plant with other workers.
In May, Upholstery Supervisor Luis Alvarez questioned Luis
Gallegos (Gallegos), one of Respondent’s parts department
employees, outside the service department. Alvarez asked
Gallegos, “What is Ricardo Romero doing in your depart-
ment?” Gallegos replied Romero was returning defective parts.
Alvarez said, “Did Ricardo Romero talk to you about the Un-
ion?”19 Gallegos denied talking to Romero about the Union.
About 2 hours later the same day Gallegos was called into
Vitelli’s office where Alvarez was present. Vitelli asked
Gallegos what Ricardo Romero did in Gallegos’ work area.
Gallegos replied that Romero was doing his job. Vitelli said, “I
saw you and Romero going in your car outside the company.
Where were you going?” Gallegos said they were going to a
restaurant. Vitelli then asked Gallegos, “Did Romero talk to
you about the Union during working hours?” When Gallegos
said no, Vitelli then asked if Gallegos talked to union represen-
tatives. After Gallegos said he had talked to union representa-
tives during lunchtime at the park, Vitelli asked, “Do you know
if Romero talked to other employees about the Union?”20
Gallegos said he did not know.
On May 9, Brian Burt (Burt), one of Respondent’s parts re-
ceivers was called into a meeting with Human Resources Assis-
tant Montes and Vitelli. Montes asked Burt several times, “Did
anyone approach you about the Union?” Later that day, Guada-
lupe Hernandez (Hernandez), employed by Respondent as an
electrical assembler, was called to a meeting in the human re-
sources office with Montez and Vitelli. When Montes told
Hernandez that he was in the office because a coworker in the
parts department had made a sexual harassment complaint,
Hernandez said he had seen nothing. Montes then said, “Did
anyone speak to you about the Union?”21 Hernandez denied
speaking to anyone about the Union.

17 See GC Exh. 5.
18 I credit Romero’s version of the meeting.
19 Alvarez denied interrogating Gallegos about the Union. In other
testimony, Alvarez incredibly denied ever hearing an employee use
profanity or tell a dirty joke at work. I credit Gallegos testimony.
20 I credit Gallegos’ testimony.
21 Montez denied interrogating Burt or Hernandez. I found Montez a
facile witness with an obvious bias, as Strauss’ lover. Burt on the other
hand testified without rancor and was responsive in his answers on
On May 10, Burt acted as Ricardo Romero’s witness at Ro-
mero’s termination meeting. Later that day Romero was termi-
nated, while in Vitelli’s office, Vitelli asked Burt why Romero
picked him to be his witness. Burt replied, “I guess he thinks
I’m an honest guy.” Vitelli said, “Either Romero thinks you’re
an honest guy or you’re lying to me yesterday and today.”
Vitelli then asked Burt if he was part of the Union.22
On May 31, at the Kraemer facility, Gallegos asked Supervi-
sor Rafael Rodriguez (Rodriguez), also known as “Five” or
“Fay,” about the union rally that had taken place that day at the
Imperial building. Gallegos asked if there had been any speak-
ers. Rodriguez replied, “No, and I told my employees if they
talk at the rally, I will suspend them.”23
On about July 16, Olga Lopez (Lopez), Respondent’s safety
clerk, had a conversation with Raphael Rodriguez in the safety
office. Rodriguez said Vitelli had a meeting with supervisors in
March and asked Rodriguez if he knew Jorge Romero and Lo-
pez were cousins. Vitelli asked Rodriguez, “How did the Un-
ion visit employees and know their addresses?” At about the
same time in mid-July, Raphael Rodriguez and Guadalupe Her-
nandez had a conversation in the electrical department. Rodri-
guez told Hernandez, “We know you are in the Union. If you
know something, say it. Do you know Olga and Jorge are
cousins?”24 Hernandez denied being in the Union or knowing
that Olga and Jorge Romero were cousins.
On July 17, security guard Eddy Rivera and Vitelli had a
conversation in Vitelli’s office. Vitelli asked Rivera if he
thought Lopez was involved with the Union and Rivera stated
that he did not think so.25 At one point Vitelli blamed Ricardo
and Jorge Romero for getting Respondent in the union “mess.”
Vitelli told Rivera to stay away from the safety office.
b. The no-solicitation/no-distribution rule
Respondent distributed an employee manual to its employees
in both the Spanish and English languages. The General Coun-
sel and Respondent proffered competing versions of the em-
ployee manual.26 The no-solicitation/no-distribution rule in the
English language employee manual offered by the General
Counsel provided:
Solicitations & Distributions

direct and cross-examination. I credit the testimony of Burt and Her-
nandez.
22 Vitelli denied interrogating Burt. I credit Burt’s testimony.
23 Rodriguez was a particularly hostile and evasive witness who had
to be admonished to respond to questions from counsel for the General
Counsel on cross-examination. I credit the testimony of Gallegos.
24 I credit the testimony of Lopez and Hernandez over that of Rodri-
guez.
25 I credit Rivera’s testimony.
26 Jorge Romero obtained General Counsel’s employee manuals in
late 2000, when he was still employed in Respondent’s human re-
sources department. Romero, who was responsible for binding and
distributing the employee manuals, testified that the only change to the
employee manual in 1999 was a noncompetition policy. Mauricio
Salinas, an employee hired by Respondent in March 2000, testified
without contradiction that the Spanish language employee manual he
received in March 2000, contained the solicitation and distribution
language in GC Exh. 13. I credit the testimony of Romero and Salinas.
KRYSTAL ENTERPRISES 241
Solicitation for any cause on company property is not permit-
ted. You are not permitted to distribute non-company litera-
ture at any time. Persons not employed by Krystal are also
prohibited from soliciting or distributing literature on com-
pany property.27
The translation of the solicitation and distribution rule in the
Spanish language employee manual reads:
Solicitation of anything in the company is not permitted. You
do not have permission to distribute literature which is not of
the company. Persons who are not employed by Krystal are
also prohibited from soliciting or distributing literature within
the property of the company.28
Respondent submitted employee manuals29 in both English
and Spanish language versions.30 The English language manual
contained the following no-solicitation/no-distribution rule:
Solicitations & Distributions
Solicitation for any cause during working time and in
working areas is not permitted. You are not permitted to
distribute non-company literature in work areas at any
time during working time. Working time is defined as the
time assigned for the performance of your job and does
not apply to break periods and meal times. Working areas
do not include the lunch room or the parking areas. Solici-
tation during authorized meal and break periods is permit-
ted so long as it is not conducted in working areas. How-
ever, employees are not permitted to sell chances, mer-
chandise or otherwise solicit money or contributions with-
out management approval.
Persons not employed by Krystal are prohibited from
soliciting distributing literature on company property.
Hill and Rocio Wheat (Wheat) explained Respondent’s ver-
sion of the employee manuals. In early 1999 Hill told Wheat,
Respondent’s human resources manager at the time, to review
the solicitation and distributions policy in the employee man-
ual. According to Wheat, in March 1999 she reviewed both the
solicitation and distributions and confidentiality language in the
employee manual. Wheat drafted revisions for the solicitation
and distributions policy in both Spanish and English. She had
copies of the revisions made at Kinkos. Wheat told Jorge Ro-
mero, her assistant, to remove the old solicitation and distribu-
tion language and insert the new language into the employee
manuals that were stored in the supply closet. Wheat said em-
ployees were notified of the change to the employee manual by
memo. The memo dated March 19, 1999, states:
This is a revised Krystal Employee Manual, please take some-
time [sic] to review it, and return to me the Receipt & Ac-

27 GC Exh. 12, p. 38.
28 GC Exh. 13, p. 37; Tr. p. 899.
29 R Exh. 19, p. 38, Exhs. 20 and 24, p. 37.
30 Respondent did not provide a translation of its version of the
Spanish language solicitation and distribution rule. However, Rocio
Wheat, Respondent’s human resources manager from July 1997
through October 2000, testified that R. Exhs. 19, 20, and 24 contained
the versions she revised of Respondent’s solicitation and distribution
rule in English and Spanish.
knowledgement page with your signature, and date. In addi-
tion, attached is also a revised copy of the Employee Inven-
tion, Non-Disclosure, & Non-Competition Agreement, please
initial the first page, and sign and date the bottom of the sec-
ond page.
Nothing in the memo indicates that the new solicitation and
distribution language was distributed to employees.31 Further,
Wheat testified that in March 1999 there were only 50–100
copies of the extant employee manual in stock.32 Vitelli testi-
fied Respondent employed almost 500 employees in 1999.
Thus, contrary to the memo, Respondent could not have dis-
tributed new employee manuals to all of its employees in
March 1999. I find that Respondent did not distribute the re-
vised solicitation and distribution language or new employee
manuals to its employees in March 1999. Moreover, according
to Wheat, the old manuals, previously distributed to employees
were not taken back. Accordingly, the employee manuals pre-
sented by counsel for the General Counsel were the versions in
effect in 2001.
c. The allegation Respondent denied its employee’s access
to union representatives
On May 31 from 4 to 5:30 p.m., the Union held a rally at Re-
spondent’s Imperial facility. The rally took place on the side-
walk at the southwest corner of the Imperial facility.33 On
Kraemer Boulevard, union representatives handed out handbills
at the Kraemer exit and at an adjoining alley exit from the Im-
perial facility from about 4:50 to about 5:10 p.m. The Kraemer
gate, about 400 feet north of the union rally, allowed employees
with cars to exit at a traffic signal. The alley, about 100 feet
north of the Kraemer exit gate, was an exit from Krystal park-
ing lot 2. From the alley employees could only turn right on
Kraemer, away from the site of the union rally. The exits were
used by employees to exit the Imperial facility on foot and by
car. The Kraemer exit had a gate that could be closed but was
normally kept open so employees could leave work. On about
May 17, a “new access” was cut into the wall between Krystal
parking lots 1 and 2. On May 31, Vitelli told supervisors via
radio to keep employees in their work areas and not to use the
restrooms. Between 3 to 3:15 p.m. Vitelli ordered the roll up
doors on the Kraemer Street side of the Imperial facility closed.
They were open the next day and were not closed again through
July 17. Owner Ed Grech said over the radio during the rally,

31 Respondent presented an invoice dated March 17, 1999, from
Kinkos for 2000 pages copied. However, Wheat testified that this
invoice was for changes to the Non-Competition Agreement policy.
Moreover the 2000 copies would have been insufficient to give each
employee a copy of the two new policies or a new employee manual.
32 Hill testified that in 1999 Respondent had about 200–300 extant
employee manuals and had about 250 more copied so that every em-
ployee could get a new employee manual with the revised solicitation
and distribution language. Other than the March 17 Kinkos invoice,
Respondent proffered no evidence to support Hill’s assertion that 250
new manuals were copied. I credit Wheat’s testimony that Respondent
had only 50–100 manuals in stock since she was responsible for stor-
ing, supplying, and revising the manual and would have been more
familiar with this information than Hill.
33 See GC Exh. 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD242
“Hey, I see employees going toward the rally.” Grech then
ordered the Kraemer gate closed from about 5 until after 5:15
p.m. Vitelli told security guard Rivera not to allow employees
to exit the Kraemer gate but to use the “new access” to prevent
employees from attending the union rally.34 Four security
guards, including Rivera, as well as Supervisors Vitelli and Ken
Thullem, stood in the area between the Kraemer gate and the
new access gate. They all directed employees to leave via the
new access gate. Rivera stated, “[T]odos este lado,” meaning
“everyone this way.” At least seven employees were prevented
from exiting the Kraemer gate. At the alley exit, security guard
Albert Casares, pursuant to Grech’s order, was directing em-
ployees away from the rally.
4. The 8(a)(3) allegations
a. The March 9 warning to Romero
Respondent employed Ricardo Romero from October 1999
to May 10, 2001. Romero began working as a quality control
inspector (receiving) in September 2000. Romero’s duties as a
quality control inspector called for him to inspect various parts
received from Respondent’s vendors for defects. While Ro-
mero worked in both the parts and receiving departments, his
job took him throughout the Imperial building on a regular
basis. He was never told that he could not leave the receiving
area. Romero was supervised by both Von Puschendorf, the
parts department supervisor, and Ralph Garcia, the quality con-
trol supervisor. However, supervisors from other departments
gave Romero orders he carried out. Romero was never told not
to follow the orders of other supervisors.
On March 9, Romero received three fiberglass hearse load-
ing doors. While Romero was unloading the doors from the
vendor’s truck, Welding Supervisor Morales approached and
asked whether Romero had received any loading doors because
the welding department needed them. Romero showed Morales
the door and immediately noticed that it was damaged on the
corner. As a result of seeing this defect, Romero told Morales
that he was going reject the door and send it back to the vendor.
Morales instructed him to not return the door because the pro-
duction floor needed it. Morales went on to say that the vehicle
had already moved from the welding department to the next
stage on the production floor without the loading door.
Morales admitted that he instructed Romero to inform him the
moment the doors came in because the welding department
needed them, and that the vehicle that needed the door was
already in the next department.35
After the door had been taken to the production floor, Super-
visor Alvarez called Romero’s supervisor, Garcia, and told him
to come look at a defective door. When Garcia arrived, he
noticed that the door in question was damaged on the bottom
corner. Morales then showed Garcia and Alvarez a second

34 I credit Rivera’s testimony.
35 Morales was an incredible witness who denied seeing employees
sell anything at work, hearing employees use bad language at work or
seeing employees touch each other at work. Later on cross-
examination, Morales contradicted himself and admitted he heard em-
ployees use foul language at work and that he sold telephone credit
cards at work. I will credit Romero’s testimony.
defective door, which had cracked fiberglass. Then Garcia and
Alvarez were shown a third defective door that was still in the
receiving area.
Garcia called Ricardo Romero and began yelling at Romero
and asked him why he had accepted the defective door. Ro-
mero told Garcia that Morales had instructed him to accept the
door. Garcia claimed that Morales had no authority to accept
parts. However, Romero accepted defective doors in the past
when told to do so by supervisors who needed the parts. For
example, on March 27, Romero rejected a defective hearse
shell. Alvarez admonished Romero for rejecting the shell be-
cause Alvarez needed the part. Alvarez told Romero, “Next
time check with me before you reject a part.”36 Respondent’s
parts receiving clerk, Burt testified he knew that Ricardo Ro-
mero received defective parts when the production department
needed the part and was able to repair it. Burt said the produc-
tion department requested bent pillars, window moldings, and
damaged hearse doors. Contradicting Garcia’s testimony, Al-
varez admitted that Respondent had the ability to make repairs
to fiberglass parts and repaired hearse fiberglass loading doors
several times in 2001.
Later in the day on March 9, Respondent gave Romero a
written warning for accepting the defective hearse doors. The
warning stated in pertinent part:
On Friday, March 9, 2001, failed to follow his job responsi-
bilities, by approving 3 car doors that did not meet the estab-
lished quality standards and allowed them to be taken to the
production floor to be placed in the assembling [sic] line.
b. The March 22 warning to Romero
On March 22, around noon Ricardo Romero saw service de-
partment employee Gutierrez in the parts department.
Gutierrez, who was on sick leave, had come to the plant to fill
out disability forms. Gutierrez asked Romero for help in filling
out the forms. Romero suggested Gutierrez speak with Strauss
and Gutierrez asked Romero to take him to Strauss’ office.
Romero agreed, clocked into work just before 1 p.m., and took
Gutierrez to the human resources department to speak with
Strauss. When they got to Strauss’ office, Strauss was with
someone so Romero spoke to Gutierrez for a few minutes and
went to the purchasing department. According to Human Re-
sources Assistant Montes, the entire incident took no more than
5 minutes from the time Romero met Gutierrez in the parts
department until Romero left for the purchasing department.
While in front of Strauss’ office, Montes had overheard Ro-
mero tell Gutierrez, “Well, don’t worry. If they don’t help you
here, we can help you. We are the Union. We can help you.
We can help you get an attorney. We help you defend your
case.” Later, Montes told Strauss that Romero offered
Gutierrez help from the Union.

36 Alvarez testified that he admonished Romero for receiving the de-
fective hearse shell. Alvarez said he reported this incident to Romero’s
supervisor, Ralph Garcia. However, despite both Garcia and Alvarez
having been involved in the hearse door incident of March 9, neither
provided Romero with a written warning. I credit Romero’s testimony
that Alvarez told Romero to check with him before rejecting a part.
KRYSTAL ENTERPRISES 243
On March 22 at about 3 p.m. Romero was called to the hu-
man resources office. Present were Vitelli, Strauss, and Garcia.
Strauss told Romero he was being warned for wasting company
time on personal business. Strauss said he should not be talk-
ing to employees and not working. Strauss told Romero that he
had spent over 30 minutes asking for Jesus’ phone number.
Romero was not asked to explain why he was out of his work
area. Romero’s warning stated in part:
The employee must be at his designated working area at all
times during his working hours unless the employee needs to
take restroom’ [sic] break or the employee is in his break or
lunchtime.
c. The May 7 suspension of Romero
In the spring of 2001, Supervisors Threedouble and Leu-
vanos complained to Vitelli that Romero was talking to service
department employees about the Union during working time.
Vitelli reported the complaint to Montes and they began an
investigation.
Montes and Vitelli first met with Threedouble and Luevanos,
in separate meetings. Threedouble stated that he did not know
whether Ricardo Romero’s visits to the service department
were work related or not. Luevanos stated that Ricardo Ro-
mero would speak with service department employees, includ-
ing Gutierrez and Anguiano, about three times a week during
break and stay after the break had ended. Luevanos told Vitelli
and Montes that when he questioned employees Gutierrez and
Anguiano, they told him that Ricardo Romero was talking to
them about the Union.
Next Vitelli and Montes met with Gutierrez and Anguiano in
separate meetings. Vitelli asked Gutierrez if Ricardo Romero
was coming to his workstation during work hours to talk.
Gutierrez stated that in the past two weeks Romero had come
by the service department during breaks, lunch, and working
time.
During the meeting with Anguiano, Vitelli asked him if he
had any problems with Ricardo Romero. Anguiano said that
Romero was bothering him by “pushing certain things” during
working hours. Anguiano added that Romero visited to discuss
work-related matters, such whether the service department
could use parts that Respondent was excessing. Other times
Romero visited Anguiano and talked to him about the Union.
According to Anguiano, Romero visited the service department
two to three times a week for 10 to 15 minutes at a time during
both breaks and worktime. Even though Romero sometimes
talked about the Union, Anguiano could not say which topics
Romero discussed during breaks as opposed to during work
time.
As part of the ongoing investigation, Supervisor Alvarez ap-
proached employee Luis Gallegos (Gallegos). Alvarez asked
Gallegos what Ricardo Romero was doing in the service de-
partment since only supervisors were authorized to be in that
department. Gallegos assured Alvarez that Romero was in the
service department returning defective parts and performing his
job duties. Alvarez asked Gallegos if Romero had talked to
him about the Union.37 Gallegos said, “no” and that Romero
was only doing this job.
About 2 hours later, Gallegos was called to Vitelli’s office
where Alvarez was present. Vitelli asked what Ricardo Ro-
mero was doing in the service department. Gallegos again
stated that Romero was performing his job duties. Vitelli then
asked Gallegos whether Romero had talked to him about the
Union during work hours. Gallegos replied, “no.” Vitelli
asked whether any union representatives had talked to
Gallegos. Gallegos responded that a union representative had
talked to him during lunch at the park. Finally, Vitelli asked
Gallegos whether he knew if Romero had spoken to other em-
ployees about the Union and Gallegos said, “no.” At the end of
the meeting, Vitelli told Gallegos that if he heard anything
about Romero talking to employees about the Union during
working hours to inform Vitelli.
On May 7, Ricardo Romero was called to the human re-
sources office. Present were Montes, Garcia, and Vitelli.
Flavio Montes told Romero he was being suspended for being
out of his workplace. While it was Respondent’s practice to
give the disciplined employee an opportunity to present their
side of the case, Romero was given no such opportunity con-
cerning this suspension. The warning stated in part:
The Employee must be at his designated working area at all
times during his working hours unless the employee needs to
take restroom breaks or the employee is in his break or lunch-
time. . . . This is the second time that the Employee is found
in violation of this company policy. Due to the severity of
this issue here described employee will be suspended without
pay for three days (until 5-10-01).
After Ricardo Romero was suspended on May7, Vitelli, Gar-
cia, and security guard Rivera escorted Romero from the Impe-
rial building to the parking lot. On the way to the parking lot,
Vitelli, who walked behind Romero, repeatedly kicked Ro-
mero’s shoes. Once they reached Romero’s car, Vitelli told
Romero he had 1 minute to get off the premises. As Rivera and
Vitelli walked back to the facility, Vitelli stated, “Did you see
me? I kicked that fucker and he didn’t do anything about it.”38
It was commonplace for employees to engage in personal
business during working time at Respondent’s facility. Re-
spondent’s employees regularly engaged in other activities
unrelated to work. Employees sold bottled water, shrimp cock-
tails, computer software, music compact discs (CDs) and tapes,
bed comforters, tamales, raffle tickets for vehicles and televi-
sions, cigarettes, jewelry, chocolate bars, boxing gloves, and
Avon products. They made bets on sporting events. Employee
Salvador Lobato sold water during and after the lunch hour.
An employee named Rene sold chocolate bars to employees
during working hours. Armanda Romero sold boxing gloves.
Francisco Elizarraras sold cigarettes during working hours.
Employee Wenceslao Alvarez sold computer software to em-
ployees. There were two “Avon Ladies,” named Adilia and
Magda. An employee named Bustos took bets on soccer games

37 I credit Gallegos testimony.
38 I credit Rivera’s testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD244
during work time.39 The foregoing items were sold throughout
the workday, including before, after, and during work hours.
General Counsel’s witnesses testified that Martin Lizarraga
(Lizarraga), employed by Respondent from 1993 to the present,
sold tamales during the morning hours, both before and after
employees began work. In the morning, Lizarraga took orders
for tamales from employees and supervisors and he delivered
the tamales throughout the day.40 Olga Lopez saw Supervisors
Modesto Marines, Eddias Macias, Rafael Rodriguez, and Jose
Lopez purchasing items during working hours. Burt testified
that he has seen Supervisors Martinez and Von Puschendorf
buy candy bars during working hours.
During his employment, Jorge Romero sold music CDs out
of his office. For a period of time, Jorge Romero sold as many
as 15 CDs a day. Jorge Romero sold a CD to Garcia during
working hours. Garcia did not discipline Jorge Romero or in-
struct him to stop selling CDs. Carpentry Department Supervi-
sor Delgado sold cars and would ask employee during working
hours whether they wanted to buy cars.
Security guard Rivera testified that at no time was he di-
rected to stop employees from selling items during worktime.
d. The May 10 termination of Ricardo Romero
On May 4, Respondent held a Cinco de Mayo party for its
employees in its parking lot from about noon to 3 p.m. Near
the end of the party three supervisors, Marines, Vitelli, and
Alvarez saw Ricardo Romero grab two or three employees
from behind and push his pelvis against them. At about 4 p.m.,
Alvarez asked Nestor Sanchez (Sanchez)41 if he had seen Ro-
mero touch employees during the party. Sanchez said he had
and that it was a common occurrence in the parts department.
After speaking to Sanchez, Alvarez suggested that Sanchez file
a complaint of sexual harassment against Romero. Later on
May 4, Sanchez met Vitelli and told him that he had seen Ro-
mero and other employees in the parts department touch em-
ployees’ genitals and buttocks on many occasions.42
On the morning of May 7, Sanchez filed a complaint against
Romero with Montes, describing the sexual touching by Ro-
mero and other employees, including Miguel Valpuesta
(Valpuesta), Rafael Bonilla (Bonilla), and Christian de la Cruz
(de la Cruz).

39 The record does not reveal the last names of employees Rene,
Adilia, Magda, or Bustos.
40 Lizarraga initially testified that he sold tamales from November
2001 to January 2002, in Respondent’s parking lot at the Imperial facil-
ity before work. Then Lizarraga admitted that in August 2001, the
health department came to Respondent’s facility and told him he could
no longer sell tamales. At that Lizarraga stopped selling tamales.
Lizarraga admitted that he sold tamales to Strauss one time and he
delivered them to her office at around 5 p.m. I credit the testimony of
General Counsel’s witnesses that Lizarraga regularly sold tamales
during working hours.
41 Employed by Respondent from September 1999 to the present in
the parts department.
42 Ricardo Romero denied that he approached any employees from
behind and moved his pelvis in or out, or engaged in any similar con-
duct. I credit the testimony of Sanchez. Romero’s conduct is consistent
with what was common practice at Respondent’s facility.
Respondent’s employee manual at page nine defines Re-
spondent’s harassment policy as follows:
Harassment Policy
Krystal intends to provide a work environment that is
pleasant, healthful, comfortable and free from intimida-
tion, hostility or other offenses which might interfere with
work performance. Harassment of any sort-verbal, physi-
cal, visual-will not be tolerated.
What Is Harassment?
Harassment can take many forms. It may be, but is not
limited to: words, signs, jokes, pranks, intimidation,
physical contact, or violence. Harassment is not necessar-
ily sexual in nature.
Sexually harassing conduct may include unwelcome
sexual advances, requests for sexual favors, or any other
verbal or physical contact of a sexual nature that prevents
an individual from effectively performing the duties of
their position or creates an intimidating, hostile, or offen-
sive working environment, or when such conduct is made
a condition of employment or compensation, either implic-
itly or explicitly.
Responsibility
All Krystal employees, and particularly managers,
have a responsibility for keeping our work environment
free of harassment. Any employee who becomes aware of
an incident of harassment, whether by witnessing the inci-
dent or being told of it, must report it to their immediate
manager or any management representative with whom
they feel comfortable. When management becomes aware
that harassment might exist, it is obligated by law to take
prompt and appropriate action, whether or not the victim
wants the company to do so.
Reporting
In order to assist in preventing or eliminating any un-
welcomed harassment, any incidents of harassment must
be immediately reported to a manager or other manage-
ment representative. Appropriate investigation and disci-
plinary action will be taken. All reports will be promptly
investigated with due regard for the privacy of everyone
involved. Any employee found to have harassed a fellow
employee or subordinate will be subject to severe discipli-
nary action or possible discharge. Krystal will also take
any additional action necessary to appropriately remedy
the situation. . . .
Montes and Vitelli conducted the investigation of Sanchez’
complaint. Montes and Vitelli interviewed about 15 employees
Between May 7 and 10. Of the 15 employees interviewed, 643
implicated Romero as a participant in sexual touching together

43 One of the six, Gilbert Delgado, claimed Romero’s name was
Richard. Delgado claimed that Romero had black hair and a black
mustache and had the name Richard written on his uniform. Romero’s
uniform did not have the name Richard embroidered over the pocket
but rather the name Ricardo. Further, two other employees in the parts
department and in the QC department were named Richard and both
had black hair and mustaches. It is clear that Delgado’s identification
of Romero was incorrect.
KRYSTAL ENTERPRISES 245
with other parts department employees. The other nine em-
ployees interviewed did not implicate Romero. The investiga-
tion disclosed that it was common practice in the parts depart-
ment for employees to touch each other in a sexual manner and
to use profane and obscene language.
On May 7, Respondent suspended Valpuesta pending com-
pletion of the investigation. Upon completion of the investiga-
tion, Montes recommended the termination of Valpuesta and
Romero, the suspension of Rafael Bonilla, and written warn-
ings to Jaime Martinez and Jose Alberto Espinosa. Bonilla was
suspended rather than terminated because he had no previous
warnings. Montes informed Hill, Vitelli, and Strauss of his
recommendations and received no objections. Strauss then
made the decision to terminate both Romero and Valpuesta.
On May 10, Romero was terminated for repeatedly violating
Respondent’s sexual harassment policy. Once again, Romero
was not given an opportunity to present his side of the case.
Montes said he did not interview Romero because the evidence
against him was overwhelming and this was his second offense.
Respondent terminated Valpuesta on May 11 for violation of
Respondent’s sexual harassment policy.
Montes’ investigation ignored the common practice at Re-
spondent’s Imperial facility for both employees and supervisors
to engage in sexual horseplay, to use profanity and vulgar lan-
guage, and to possess and display pornography. Several wit-
nesses, including some presented by Respondent, testified that
employees frequently touched each other on the buttocks, chest,
and genitals. Employees testified that Supervisors Von
Puschendorf, Martinez, Alvarez, Vitelli, Marines, Geronimo
Ochoa,44 Robert Jasper, Jeff Brown (Brown),45 Modesto
Morales, Manny Robelledo, Ken Thullem, and Eddy Macias
were present when employees touched each other on the but-
tocks, chest, and genitals.
Once, security guard Rivera and Montes were in the body
shop department and saw employees mimicking sexual activity.
Montes laughed and did not attempt to stop the employees from
engaging in the activity. Valpuesta, in the presence of Von
Puschendorf, observed employee Rafael grab employee
Salgado’s head and mimic the act of fellatio, while stating,
“Suck it mother fucker, suck it.” Von Puschendorf commented,
“It must be nice.” All the employees laughed. Von Puschen-
dorf did not discipline the employees.46
Jorge Romero saw Vitelli walk toward employee Javier Gar-
cia and touch him on the buttocks. Garcia said, “orale puto,”
which means “come on faggot.” Vitelli repeated this same
conduct with employee Lizarraga, who was bent over looking
inside a limousine, and with employee Jose Zamarron, who was
bent over buffing a car. On another occasion, Vitelli was in
security guard Rivera’s office. During the conversation, Rivera
turned around and Vitelli ran his radio antenna between the

44 Ochoa, who has been employed with Respondent for at least 5
years, is a line supervisor on the “A” production line. Ochoa is respon-
sible for overseeing the whole production line, but he is most directly
responsible for the detail department on the “A” line. During 2001,
Ochoa supervised about 15 to 16 employees. Respondent stipulated
that Ochoa is a supervisor within the meaning of Sec. 2(11) of the Act.
45 Brown is the project manager.
46 I credit the testimony of Rivera and Valpuesta.
Rivera’s buttocks in an upward thrusting motion. In response,
Rivera jokingly placed Vitelli in a headlock.47 Ricardo Romero
saw Alvarez place his radio antenna on the buttocks of Carmen
Von Puschendorf, a purchasing clerk.
When Supervisor Brown visited the parts department he
grabbed employee Alberto Espinosa’s genitals. On another
occasion in the parts department Brown sat on employee Chris-
tian de la Cruz’ lap and rotated his pelvis, simulating sexual
activity.48 Jorge Romero testified that on three separate occa-
sions, while in his office with Supervisor Trotter, employee
Alberto Vela walked into the office and grabbed Trotter from
behind and moved his pelvis in and out. Trotter did not attempt
to stop Alberto Vela either time. Trotter admitted to two such
incidents with employee Alberto Vela.
Jorge Romero stated that Supervisor Modesto Marines en-
tered his office and showed him a photo of a naked woman’s
breast and asked Jorge Romero whether he liked her. When
Jorge Romero responded that he did, Modesto showed him the
bottom half of the picture, revealing a male penis. Modesto
laughed and told other employees.49
It is uncontroverted that Cesar Delgado (Delgado) hit an em-
ployee on the buttocks, while calling the employee an “idiot”
and telling the employee to hurry up and complete a certain job
task.50 Employee Salinas saw Delgado on a regular basis grab
employees on the buttocks and genitals, and pretended to kiss
them. Delgado once told Salinas that he wanted to make love
to him. Salinas told him that he was not a homosexual and the
comment made him feel uncomfortable. Salinas did not report
Delgado’s conduct because he feared losing his job.
Trotter admitted that on two occasions his leadman, Mauri-
cio Machuca (Machuca), grabbed the buttocks of another em-

47 Vitelli denies touching employees in a sexual manner. I credit the
testimony of Jorge Romero and Eddy Rivera over that of Vitelli. It is
likely that Vitelli engaged in this conduct given its widespread practice
in the Imperial facility, particularly in view of his previous counseling
by Hill for engaging in similar conduct.
48 Brown denied touching employees in a sexual manner. Brown
also denied employees told dirty jokes at work then later contradicted
his testimony and admitted employees told dirty jokes. I credit Ricardo
Romero’s testimony that Brown engaged in touching employees in a
sexual manner.
49 Marines denied ever seeing pornography at Respondent’s facili-
ties. He also initially denied using profanity. He later admitted that
employees used “guy talk” including words like “fucking.” I credit the
testimony of Jorge Romero.
50 In 2001, Delgado was the leadman on production line “C” and was
responsible for about 20 employees. He reported to Trotter. If there
was a problem on the production line Delgado would send the appro-
priate employee, based on the employee’s skill and knowledge, to
address the problem. Delgado had the authority to recommend merit
raises for his subordinate employees. Even though Trotter would per-
sonally view employees’ performance, he did rely on Delgado’s as-
sessment of employees work performance when considering merit
raises. Delgado was responsible for conveying employees’ complaints
to Trotter and he made sure employees performed their work duties.
He also reported misconduct to Trotter. Trotter relied on Delgado to
ensure that Respondent’s production needs were met. I find that
Delgado is a supervisor within the meaning of Sec. 2(11) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD246
ployee.51 The first time the employee objected and told Ma-
chuca that he did not like being touched.52 About 2 weeks
later, Machuca touched another employee in the same fashion
and the employee pushed Machuca and told him not to touch
him. Trotter claimed that he met with his entire wood shop
department and admonished them against that type of conduct,
because customers came through the facility and it was impor-
tant to make a good impression. Trotter did not report either
incident to human resources or to any other manager, despite
his obligation to do so under Respondent’s harassment policy.
Trotter did not issue Machuca a written warning as a result of
either incident.
Respondents’ employees and supervisors often viewed and
circulated pornographic pictures and e-mail. Burt testified that
about once a month Supervisor Raul Martinez called employees
to his computer and showed them pornographic movie clips on
his computer.53 When Rivera patrolled Respondent’s premises,
employees showed him pornography. Rivera saw pornographic
pictures on the toolboxes owned by Respondent54 and on
smaller toolboxes owned by employees. Rivera saw pornogra-
phy in the welding, detail, body shop, and parts departments.
On May 6, 4 days before Respondent terminated Ricardo
Romero, Supervisor Von Puschendorf e-mailed Supervisor Von
Ahn a document entitled “Pick-Up Lines.”55 Von Puschendorf
printed the e-mail on the company printer and employees
viewed it. Vitelli conceded that Von Ahn violated Respondent’s
sexual-harassment policy by sending Von Puschendorf the
“Pick-Up Lines” e-mail. Von Ahn was not disciplined. Von
Ahn also sent “Pick-Up Lines” e-mail to some of Respondent’s
vendors including their paint vendor BASF Corporation and
their fiberglass vendor, a company called Blackhawk.
Von Puschendorf received and printed on the company
printer an e-mail entitled, “Top 10 Sexual Positions.”56 Von
Puschendorf distributed copies of the e-mail to employees.
Vitelli also conceded that Von Puschendorf violated Respon-
dent sexual harassment policy by printing “Top 10 Sexual Posi-
tions” on the company computer. Von Puschendorf also dis-
tributed the pornographic material received as Charging Party
Exhibit 2.57 Valpuesta maintained copies of the pictures on a
clipboard, which he kept in the parts department. Valpuesta
showed these pornographic pictures to employees. Burt testi-
fied that he saw pornography on Respondent’s computer’s
shared hard drive between July and October 2000.
In May, after Ricardo Romero’s termination, Larry Webster,
employed by one of Respondent’s vendors, e-mailed a docu-
ment with the subject heading of “Men,” the first line of which

51 Trotter did not recall the dates, but the first time occurred before
Strauss was hired.
52 Trotter did not recall the name of the employee.
53 Martinez was a thoroughly discredited witness who fully im-
peached himself on the issue of his observation and possession of por-
nography at work. I credit Burt’s testimony.
54 The company-owned toolboxes were about 4-feet tall.
55 See GC Exh. 8.
56 See GC Exh. 1.
57 Von Puschendorf denied seeing or distributing CP Exh. 2. I do
not credit this denial in view of Von Puschendorf’s admitted appetite
for pornography in the workplace.
reads, “This is for men tired of receiving male-bashing jokes.”58
Von Puschendorf then forwarded the e-mail to several supervi-
sors, including Martinez. Vitelli further conceded that Marti-
nez violated Respondent’s sexual harassment policy by e-
mailing this item. Martinez forwarded the e-mail to employee
Burt. Martinez was not disciplined. Burt identified the e-mail
entitled “Men” as one Supervisor Martinez sent to him through
company e-mail.
Respondent’s employees regularly used profanity and curse
words, in both English and Spanish. Some of the most com-
mon Spanish words and phrases were: “puto, joto, or maricon,”
each means “faggot”; “culero,” meaning “asshole”; “pendijo,”
which means “stupid”; “chinga,” meaning “fucker”; “chinga tu
madre,” which means “fuck your mother”; “pinche,” which
means “fucking”; “panocha,” meaning “pussy”; and “verga,”
which means “cock”; and “cingota,” meaning “go fuck your-
self.” The English equivalent of the foregoing words were also
commonly used. Employees regularly said, “mother fucker,”
“son-of-a-bitch,” “cock sucker,” and “fuck you.” Supervisors
were often present when employees used offensive language
and they never told employees to stop. Supervisors Manuel
Martinez, Trotter, Alvarez, Marines, Jeff Brown, Benito Rodri-
guez, and Geronimo Ochoa, have each been present when em-
ployees used offensive language.59
Vitelli testified that he has heard employees say “chinga”
and “pinche.” Supervisors themselves used the very same of-
fensive language. Supervisors like Manuel Robelledo, Modesto
Marines, and Hector Tirado used offensive language on a daily
basis.60 Vitelli frequently asked employees “panacha o verga,”
meaning “pussy or cock.”61 Respondent’s witness Sanchez said
that employees in the parts department used profanity and of-
fensive language, like “idiot,” “fuck your mother,” “fuck off,”
and “fuck you.” Employees used this language in the presence
of Supervisor Martinez. Respondent’s witness Zuniga also
testified that employees used words like, “pinche,” “chinga,”
and “pinche joto,” “maricon,” and “cingota,” meaning “go fuck
yourself.” Supervisor Alvarez admitted that employees used
profanity in Spanish, such as “pinche” and “bobasola,” mean-
ing “bullshit.” Supervisor Marines admitted to sometimes us-
ing bad language. Jorge Romero heard Strauss refer to her
predecessor, Rocio Wheat, as that “fucking old lady.”62
e. The July 9 reduction in Olga Lopez’ duties
Respondent employed Olga Lopez as safety clerk from April
1999 to August 1. Lopez’ office was located in a trailer outside
of the Imperial facility. As a safety clerk, Lopez’ duties in-
cluded: distributing safety equipment to employees; conducting
safety training of new employees and retraining of old employ-

58 See GC Exh. 11.
59 Many of these supervisors incredibly denied ever hearing swear
words at work. I have discredited their testimony as a result of their
prevarication.
60 Rivera testified that Robelledo, Marines, and Tirado each had em-
ployees working under them and wore white shirts.
61 Hill verbally counseled Vitelli once about this use of offensive
language.
62 Strauss denied making this statement. For the reasons noted
above, I credit Romero’s testimony.
KRYSTAL ENTERPRISES 247
ees; inspecting safety equipment to ensure they were in good
working order; securing transportation to the medical clinic for
injured employees; completing the medical authorization
forms; performing first aid on employees’ minor injuries; or-
dering first aid supplies; investigating work injuries by talking
to the injured worker, supervisors, and witnesses; assisting
employees complete workers compensation forms; maintaining
files on injured employees; completing the Occupational Safety
and Health Administration (OSHA) logs, which are called the
OSHA 200 Logs; and completing the V.O.C. Logs, which indi-
cate how much glue and paint Respondent used per day. Lo-
pez’ duties gave her access to employee personnel files.
On July 9, at around 10:45 a.m., Lopez met with Strauss in
the human resources office. Strauss informed Lopez that be-
cause of a “negative change” Respondent had toward Lopez,
starting July 9, Lopez was no longer going to be responsible for
completing the OSHA 200 Logs, sending employees to the
clinic, and worker’s compensation forms. Strauss said all the
safety files were to be maintained in Strauss’ office.63 Strauss
also stated that during her absence on maternity leave, a lot of
information had filtered out of the human resources office and
employees were complaining of the Union visiting them at their
homes. Strauss told Lopez to train employee Hilary Gonzalez,
herein called Gonzales, on how to perform Lopez’ duties at the
Kraemer building. Lopez asked if the reduction in duties was a
result of her performing poorly, and Strauss responded that
Lopez was one of her best workers. Lopez asked Strauss if the
reduction was because Respondent thought she and Jorge Ro-
mero were cousins. Strauss told Lopez that Lopez could not
prove that.
Lopez was left with the job duties of distributing safety
equipment, performing first aid, safety training, and retraining
employees at the Imperial building.
In July, Supervisor Rodriguez approached the work area of
employee Guadalupe Hernandez. Rodriguez told Hernandez
that they already knew she was involved with the Union and if
she knew anything she had better tell him. Hernandez stated
that she knew nothing. Rodriguez then asked Hernandez if she
knew if Jorge Romero and Lopez were cousins. Hernandez
stated that she did not know.64 After Lopez’ duties were re-
duced, Supervisor Rodriguez entered the safety office and
talked with Lopez. Rodriguez informed Lopez that during a
March supervisors’ meeting, Vitelli asked him if he knew that
Jorge Romero and Lopez were cousins. Rodriguez told Vitelli
that he did not think so, and Vitelli replied how was it then that
the Union visited employees and knew employees’ addresses.
Rodriguez also told Lopez that the Union was getting strong
and the managers were concerned. On July 17, Rivera and
Vitelli talked in Vitelli’s office. Vitelli told Rivera that he was
hanging around the safety office a lot and there was a rumor
that he and employee Lopez had a sexual relationship. Vitelli
asked Rivera if he thought Lopez was involved with the Union

63 While Strauss denied reducing Lopez’ duties, Lopez’ testimony is
corroborated by Strauss’ e-mail of July 9, received as GC Exh. I credit
Lopez’ testimony.
64 Hernandez testified that she later reported Rodriguez’ comments
to Strauss.
and Rivera stated that he did not think so. At one point Vitelli
blamed Ricardo and Jorge Romero for getting Respondent in
the union “mess.” Vitelli told Rivera to stay away from the
safety office.
f. The August 1 termination of Lopez
According to Hill, in January Respondent’s business began
to decline about 25 or 30 percent in sales. By the second half
of 2001, Respondent’s business had dropped 50 percent in
sales. In July, Hill met with each of the managers that report to
him, including Strauss, and gave them a choice. Hill told the
managers that they had two options: they could put their de-
partment on a 4-day workweek, working 32 hours a week, thus,
taking a 20-percent pay cut; or they could lay off 20 percent of
the people in their department. If the managers chose the sec-
ond option, and the department had five or less employees, the
manager had to lay off one employee. Prior to the layoff, dur-
ing July, Strauss’ department consisted of five people: Montes,
Lopez, Hilary Gonzales (Gonzales), Isabella,65 and Strauss.
According to Strauss, after her discussion with Hill, she
evaluated her staff and decided to lay off not one but two em-
ployees: Gonzales, who was hired as a temporary employee
during Strauss’ maternity leave and Lopez. Strauss had
planned to retain Gonzales for several months after she returned
from her maternity leave in June. On July 9, Strauss assigned
Gonzales Lopez’ safety duties at the Kraemer building. Lopez
was chosen for termination because her duties had been per-
formed in the past by outside safety consultant, Mike Bushey.
Before Strauss could lay her off, Gonzales quit on July 24.
On August 1, 2001, Strauss had a meeting with Lopez in the
safety office and told Lopez that Respondent was conducting a
layoff. Strauss told Lopez that the layoff was going to effect
the human resources department and that Respondent was go-
ing to have to let Lopez go. Lopez said she understood and left.
The August 1 downsizing resulted in approximately 80 pro-
duction employees being laid off. In mid-August, Hill insti-
tuted a 4-day workweek when supervisors did not lay off suffi-
cient numbers of employees in their departments. Then, as a
result of September 11, 2001, the employer laid off another 100
employees on September 27, 2001. Including 40 to 50 employ-
ees who voluntarily quit during 2001, a total of 220 to 230 pro-
duction employees were terminated in 2001.
After Lopez was fired, Strauss and Montes performed some
of the safety duties. They passed out safety equipment, con-
ducted safety training, performed first aid, ordered safety
equipment, filed, and sent employees to the clinic. The safety
clerk position has not been reinstated.
B. The Analysis
1. The 8(a)(1) allegations
The consolidated amended complaint alleged numerous in-
stances of interrogations and threats and will be dealt with as
they appear in the complaint.

65 The record does not reveal Isabella’s last name. Isabella was the
payroll clerk.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD248
a. In January Vitelli interrogates employees about their
union activities and sympathies
This allegation was not plead in the General Counsel’s con-
solidated amended complaint but was fully litigated at the hear-
ing.66 In January, Respondent’s security guard, Eddy Rivera,
told Vitelli he had seen Ricardo Romero talking to fellow em-
ployee Juan Rodriguez in the break area and that Romero was
getting employees’ phone numbers so the Union could call
them. Vitelli called Rodriguez into a meeting and in Eddy
Rivera’s presence asked Rodriguez, “Is Jorge Romero in the
Union?” “What’s going on?” “Why is he asking for your
phone number?” Vitelli then stated, “He is in the union. We
have to stick together. We don’t want the Union in.” During
the meeting Rodriguez mentioned that Ricardo Romero had
also spoken to employee Juan Luis Quintana. After dismissing
Rodriguez, Vitelli told Rivera to bring Quintana to his office.
Vitelli asked Quintana, “Why is Jorge Romero trying to get in
touch with you?”
In general, it is unlawful for an employer to inquire as to the
union sentiments of its employees. President Riverboat Casi-
nos of Missouri, 329 NLRB 77 (1999). Whether an interroga-
tion is unlawful is determined by the totality of the circum-
stances. Rossmore House, 269 NLRB 1176, 1177 (1984);
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). The stan-
dard is whether under all the circumstances the alleged interro-
gation reasonably tends to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. The Board
applies an objective standard when determining whether a
statement is coercive. MDI Commercial Services, 325 NLRB
53, 63–64 (1994). An employer may not create the impression
that employees’ protected activities are under surveillance.
Hudson Neckwear, Inc., 302 NLRB 93, 95 (1993).
In the instant case, Vitelli interrogated both Rodriguez and
Quintana in order to determine if they, Jorge or Ricardo Ro-
mero were engaged in union activity. Vitelli’s statement that
Jorge Romero was in the Union created the impression that
Romero’s union activities were under surveillance and violated
Section 8(a)(1) of the Act. The interrogation was conducted by
a high-management official, the plant manager, in his office.
There was no legitimate reason for Vitelli to make these inquir-
ies. The interrogations of Rodriguez and Quintana were coer-
cive and violated Section 8(a)(1) of the Act.
b. On April 5 Vitelli interrogated employees about their
union sympathies and activities and threatened employees
and their families with unspecified reprisals for engaging
in union activities
There was no evidence adduced that Vitelli interrogated em-
ployees in April about their union activities. However, on
April 10, Vitelli told Ricardo Romero, “Several employees said
you asked them to sign. If I don’t fuck with your family, don’t
fuck with mine. Don’t take food off my table. I don’t know
why your brother is stabbing me in the back.”

66 An unpleaded but fully litigated matter mainly support an unfair
labor practice finding despite a lack of an allegation in the complaint.
Hi-Tech Cable Corp., 318 NLRB 280 (1995); enfd. in part 128 F.3d
271 (5th Cir. 1997); Meisner Electric, Inc., 316 NLRB 597 (1995).
Vitelli’s statement to Romero had to do with the March 26
letter Romero gave Vitelli, putting Respondent on notice Ro-
mero was engaged in union activity. Vitelli’s statement was a
veiled threat to Romero that he should not engage in union
activity or Romero and his family could suffer the conse-
quences of Romero’s union activity. The Board has found
similar statements coercive. Stoody Co., 320 NLRB 18 (1995).
In Leather Center, Inc., 308 NLRB 16, 27 (1992), a violation of
Section 8(a)(1) was found where an employer’s vice president
discovered that an employee had attended a union meeting and
stated to the employee that he was fucking with the family and
playing hardball. Also in Taylor Co., 292 NLRB 658, 663
(1989), during a union campaign, where the employer’s plant
manager told employees I won’t hurt you, if you all won’t hurt
me, the Board found an 8(a)(1) violation. I find Vitelli’s state-
ment violated Section 8(a)(1) of the Act.
c. On May 7, 9, and 10 Vitelli interrogated employees about
their and other employees’ union activities and sympathies
In early May, Gallegos was called into Vitelli’s office where
Alvarez was present. Vitelli asked Gallegos what Ricardo Ro-
mero did in Gallegos’ work area. Gallegos replied that Romero
was doing his job. Vitelli said, “I saw you and Romero going
in your car outside the company. Where were you going?”
Gallegos said they were going to a restaurant. Vitelli then
asked Gallegos, “Did Romero talk to you about the Union dur-
ing working hours?” When Gallegos said no, Vitelli then asked
if Gallegos talked to union representatives. After Gallegos said
he had talked to union representatives during lunchtime at the
park, Vitelli asked, “Do you know if Romero talked to other
employees about the Union?” Gallegos said he did not know.
On May 10, Burt acted as Romero’s witness at Romero’s ter-
mination meeting. Later that day in Vitelli’s office, Vitelli
asked Burt why Romero picked him to be his witness. Burt
replied, “I guess he thinks I’m an honest guy.” Vitelli said,
“Either Romero thinks you’re an honest guy or you’re lying to
me yesterday and today.” Vitelli then asked Burt if he was part
of the Union.
Both the interrogation of Gallegos and Burt were made by
the plant manager, in his office without any legitimate purpose.
These interrogations violated Section 8(a)(1) of the Act. Gard-
ner Engineering, 313 NLRB 755 (1994); Hoffman Fuel Co.,
309 NLRB 327 (1992); Cumberland Farms, 307 NLRB 1479
(1992).
d. On May 7 Alvarez interrogated employees about their
and other employees’ union activities and sympathies
In May, Upholstery Supervisor Alvarez questioned Gallegos,
Respondent’s parts department employee outside the service
department. Alvarez asked Gallegos, “What is Ricardo Ro-
mero doing in your department?” Gallegos replied Romero
was returning defective parts. Alvarez said, “Did Ricardo Ro-
mero talk to you about the Union?” Gallegos denied talking to
Romero about the Union.
This interrogation was the preamble to Vitelli’s subsequent
interrogation of Gallegos by Vitelli, discussed above. Supervi-
sor Alvarez had no legitimate reason to ask if Romero was
talking to Gallegos about the Union but rather was simply try-
KRYSTAL ENTERPRISES 249
ing to find out who was supporting the Union. Alvarez’ inter-
rogation violated Section 8(a)(1) of the Act. President River-
boat Casinos of Missouri, supra.
e. On May 7 and 9 Flavio Montes interrogated employees
about their and other employees’ union activities
and sympathies
On May 9, Burt, Respondent’s parts receiver, was called into
a meeting with Human Resources Assistant Flavio Montes and
Vitelli. Montes asked Burt several times, “Did anyone ap-
proach you about the Union?” Later that day Guadalupe Her-
nandez, employed by Respondent as an electrical assembler,
was called to a meeting in the human resources office with
Montez and Vitelli. After Montes told Hernandez that he was
in the office because a coworker in the parts department had
made a sexual harassment complaint, Hernandez said he had
seen nothing. Montes then said, “Did anyone speak to you
about the Union?” Hernandez denied speaking to anyone about
the Union.
The interrogations of Burt and Hernandez by Montes, the
highest human resources official at the time, in the human re-
sources office was coercive and had no legitimate purpose,
particularly since the purpose of the interview was supposedly
to investigate sexual harassment not union activity. I find these
interrogations violated Section 8(a)(1) of the Act.
f. On May 31 Raphael Rodriguez threatened employees
with suspension for engaging in union activities
On May 31, at the Kraemer facility, Gallegos asked Supervi-
sor Rafael Rodriguez, also known as “Five” or “Fay,” about the
union rally that had taken place at the Imperial building.
Gallegos asked if there had been any speakers. Rodriguez re-
plied, “No, and I told my employees if they talk at the rally, I
will suspend them.”
An employer’s threat of suspension for engaging in union ac-
tivities violates the Act. Bestway Trucking, Inc., 310 NLRB
651, 671 (1993); Q-1 Motor Express, 308 NLRB 1267, 1277
(1992). Rodriguez threat to Gallegos violated Section 8(a)(1)
of the Act.
g. On July 16 Raphael Rodriguez interrogated employees
about their union activities and sympathies and creates
an impression of surveillance
The allegation that Raphael Rodriguez created an impression
that employees’ union activities were under surveillance was
not plead in the General Counsel’s consolidated amended com-
plaint but was fully litigated at the hearing.67 On about July 16,
Olga Lopez, Respondent’s safety clerk, had a conversation with
Rodriguez in the safety office. Rodriguez said Vitelli had a
meeting with supervisors in March and asked Rodriguez if he
knew Jorge Romero and Lopez were cousins. Vitelli asked
Rodriguez, “How did the Union visit employees and know their
addresses?” At about the same time in mid-July, Rodriguez
and Hernandez had a conversation in the electrical department.
Rodriguez told Hernandez, “We know you are in the Union. If
you know something, say it. Do you know Olga and Jorge are

67 Ibid.
cousins?” Hernandez denied being in the Union or knowing
that Olga and Jorge Romero were cousins.
Telling employees that the employer knows who is active in
the union creates among employees an impression that their
union activities are under surveillance and is unlawful. Peter
Vitale Co., 310 NLRB 865, 874 (1993). I find that Rodriguez’
statement to Hernandez that Respondent knew she was in the
Union reasonably would have created an impression in Her-
nandez’ mind that her union activities were under surveillance
and violated Section 8(a)(1) of the Act.
h. On May 31 Respondent denied employee’s access to
union representatives by blocking and closing facility exits
When an employer denies its employee’s access to union
representatives it violates Section 8(a)(1) of the Act. Miller
Group, 310 NLRB 1235, 1238 (1993); Libby-Owens Ford Co.,
285 NLRB 673 (1987).
On May 31, Vitelli told supervisors via radio to keep em-
ployees in their work areas and not to use the restrooms. Be-
tween 3 to 3:15 p.m. Vitelli ordered the roll up doors on the
Kraemer Street side of the Imperial facility closed. They were
open the next day and were not closed again through July 17.
Owner Ed Grech said over the radio during the rally, “Hey, I
see employees going toward the rally.” Grech then ordered the
Kraemer gate closed from about 5 until after 5:15 p.m. Vitelli
told security guard Rivera not to allow employees to exit the
Kraemer gate but to use the “new access” to prevent employees
from attending the union rally. Four security guards, including
Rivera, as well as Supervisors Vitelli and Ken Thullem, stood
in the area between the Kraemer gate and the new access gate.
They all directed employees to leave via the new access gate.
Rivera stated, “[T]odos este lado,” meaning “everyone this
way.” At least seven employees were prevented from exiting
the Kraemer gate. At the alley exit, security guard Albert
Casares, pursuant to Grech’s order, was directing employees
away from the rally.
During the union rally on May 31, Respondent’s owner and
supervisors did all they could to deny employees access to the
union rally, taking place outside the Imperial facility. Grech
directed gates closed that would have allowed employees to
obtain information from union representatives at those gates.
Vitelli instructed security guards to route employees leaving
work away from the rally to the north through the new access
gate. This conduct violated Section 8(a)(1) of the Act by deny-
ing employee access to the Union. Miller Group, supra.
i. In January Respondent promulgated and maintained
an overly broad no-solicitation/no-distribution rule
As found above, Respondent’s no-solicitation/no-distribution
rule in the English language employee manual provides:
Solicitations & Distributions
Solicitation for any cause on company property is not permit-
ted. You are not permitted to distribute non-company litera-
ture at any time. Persons not employed by Krystal are also
prohibited from soliciting or distributing literature on com-
pany property.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD250
The translation of the solicitation and distribution rule in the
Spanish language employee manual reads:
Solicitation of anything in the company is not permitted. You
do not have permission to distribute literature which is not of
the company. Persons who are not employed by Krystal are
also prohibited from soliciting or distributing literature within
the property of the company.
The law relating to no-solicitation and no-distribution rules
is well settled. An employer may not prohibit solicitation on
the employees’ own time. Republic Aviation Corp. v. NLRB,
324 U.S. 793 (1945). Distribution of literature may be prohib-
ited in working areas during working time. Stoddard-Quirk
Mfg., 138 NLRB 615 (1962). A rule prohibiting solicitation or
distribution during “working time” is presumptively valid,
since it implies solicitation is permitted during nonworking
time; by contrast, a rule which prohibits solicitation during
“working hours” is presumptively invalid, because the term
“working hours” connotes periods of time, such as breaks and
lunch, which are the employees’ own time. Our Way, Inc., 268
NLRB 394, 395 (1983). However, a rule which is presump-
tively valid may violate the Act if it is applied in a discrimina-
tory fashion. Opryland Hotel, 323 NLRB 723 (1997); Reno
Hilton Resorts, 320 NLRB 197 (1995); Emergency One, Inc.,
306 NLRB 800 (1992).
Respondent’s solicitations and distributions rule prohibits
employee solicitation and distribution of literature in any place
at any time. Under Republic Aviation and Stoddard-Quirk and
their progeny, Respondent’s rule is facially overbroad and vio-
lates Section 8(a)(1) of the Act.
2. The 8(a)(3) allegations
The consolidated amended complaint alleges several viola-
tions of Section 8(a)(3) of the Act. They will be dealt with as
they appear in the complaint.
The General Counsel has the initial burden of establishing
that union activity was a motivating factor in Respondent’s
action alleged to constitute discrimination in violation of Sec-
tion 8(a)(3) of the Act. The elements required to support such a
prima facie violation of Section 8(a)(3) are union activity, em-
ployer knowledge of the activity, and a connection between the
employer’s anti union animus and the discriminatory conduct.
Once the General Counsel has established its prima facie case,
the burden shifts to Respondent to show that it would have
taken the disciplinary action even in the absence of protected
activity. Wright Line, 251 NLRB 1083 (1980).
a. The March 9 warning to Romero
Ricardo Romero engaged in union activities on behalf of the
Union herein. He assisted in organizing Respondent’s employ-
ees with his brother Jorge beginning in January. Ricardo Ro-
mero provided the Union the phone numbers of Respondent’s
employees, handed out union authorization cards to Respon-
dent’s employees, and talked to Respondent’s employees at
work about the Union. As early as January Vitelli had been
told by both security guard Rivera and employee Juan Rodri-
guez that Ricardo Romero was getting employees’ phone num-
bers for the Union. Vitelli was concerned about the union
campaign and began interrogating employees about the activi-
ties of the Romero brothers. By early March, Respondent had
further knowledge of Ricardo Romero’s union activities. In
early March, both Jesus Gutierrez and Rene Anguiano, me-
chanics in Respondent’s service department told their Supervi-
sors Threedouble and Leuvanos that Ricardo Romero had been
talking to them about the Union. After complaining to Three-
double, Anguiano was called into a meeting with Montes and
Vitelli on March 7. Vitelli asked Anguiano how often Romero
had been talking to him and when. Anguiano said that Romero
had been talking to him often about the Union. In addition, the
element of antiunion animus has been established. In the Janu-
ary meeting with Rodriguez and Rivera Vitelli said, “Is Jorge
Romero in the Union?” “What’s going on?” “Why is he ask-
ing for your phone number?” Vitelli then stated, “He is in the
union. We have to stick together. We don’t want the Union
in.” After the meeting Vitelli expressed Respondent’s animos-
ity toward Ricardo Romero. Eddy Rivera told Vitelli, “See
what you can do to get rid of Ricardo Romero because he is
getting numbers for Jorge for the Union.” Vitelli replied,
“Don’t worry Strauss and Hill will take care of it.” Finally the
warning to Romero came within days of the March 7 interroga-
tions and expressions of anti union animus. Having established
its prima facie case that Respondent’s March 9 warning to Ri-
cardo Romero for inspecting and accepting three defective
fiberglass doors violated Section 8(a)(3) of the Act, the burden
shifts to Respondent to show that the warning would have taken
place even in the absence of Romero’s union activity.
Respondent contends it warned Romero because he in-
spected and approved three defective fiberglass doors. Romero
does not dispute that he accepted at least one door with a de-
fect. However, there is no evidence that Romero inspected and
accepted the other two doors. While there is an invoice ac-
knowledging receipt of three doors signed by Romero and oth-
ers, there was no evidence adduced at the hearing that Romero
inspected or accepted the two additional doors that allegedly
had defects. One door arrived in the welding department and
one door remained in the receiving area. Indeed the credited
evidence indicates that as the doors were arriving, Welding
Supervisor Morales approached and asked whether Romero had
received any loading doors because the welding department
needed them. Romero showed Morales the door and immedi-
ately noticed that it was damaged on the corner. As a result of
seeing this defect, Romero told Morales that he was going re-
ject the door and send it back to the vendor. Morales instructed
him to not return the door because the production floor needed
it. Morales went on to say that the vehicle had already moved
from the welding department to the next stage on the produc-
tion floor without the loading door. It was Respondent’s prac-
tice to accept defective parts that were urgently needed and
could be repaired. Supervisors had told Romero many times to
accept defective parts, including supervisor Alvarez on March
27. Respondent’s March 9 warning to Romero was so inconsis-
tent with its past practice that it must be considered pretextual.
Respondent has failed to sustain its burden under Wright Line.
I find that the March 9 warning of Romero violated Section
8(a)(3) of the Act.
KRYSTAL ENTERPRISES 251
b. March 22 warning to Romero
The General Counsel has previously established Respon-
dent’s knowledge of Romero’s union activity and Respondent’s
antiunion animus. Additionally, the timing of Romero’s March
22 warning for engaging in nonwork matters on company time
occurred right after Montes overheard Romero offer Gutierrez
union assistance to remedy his injury. I find that the General
Counsel has established a prima facie case that Respondent
violated Section 8(a)(3) of the Act in its March 22 warning to
Romero. Under Wright Line, the burden shifts to Respondent
to show it would have disciplined Romero even in the absence
of his union activity.
Respondent argues that it validly disciplined Romero be-
cause he was away from his work area on noncompany busi-
ness. Respondent produced disciplinary records of other em-
ployees who had been warned for not working to show that
Romero’s discipline was consistent with past enforcement of its
rules. However, the examples cited by Respondent are not
apposite to Romero’s job. It appears that most of the employ-
ees disciplined were not working while at their job station or
were away from their work area. While Respondent attempted
to establish that Romero’s job duties required his presence in
the receiving area, the evidence has shown that Romero’s job
duties took him throughout Respondent’s facility on a regular
basis. Romero had just punched into work when he took dis-
abled worker Gutierrez from the service area to the human
resources office. From there Romero went to the purchasing
department to conduct business. The entire trip took no more
than 5 minutes according to Respondent’s witness Flavio Mon-
tes. While Romero may have spoken to Gutierrez for a few
minutes while waiting for Strauss, it was not uncommon for
Respondent’s employees to engage in nonwork-related activi-
ties during worktime. The record is replete with examples of
employees who engaged in nonwork activity during worktime
without discipline. Further, in these circumstances it is disturb-
ing that Respondent did not afford Romero an opportunity to
explain his side of the story before deciding to discipline him.
It appears that Respondent’s true motive here was not valid
discipline but rather discipline because Romero was engaged in
union activity at the time of the warning. I find that Respon-
dent violated Section 8(a)(3) of the Act in its March 22 disci-
pline of Romero.
c. The May 7 suspension of Romero
As noted above, the General Counsel has established each
element of a prima facie violation of Section 8(a)(3) of the Act
in Ricardo Romero’s previous warnings. Each element is also
present in Romero’s May 7 suspension for being in the service
department on nonwork business. Moreover, the timing of this
warning took place within days of Vitelli and Alvarez’ interro-
gation of Gallegos about Romero’s union activity and within
days of Romero handing out union literature in front of Re-
spondent’s Imperial facility.
Respondent’s defense is identical to the one raised in its
March 22 warning to Romero. As noted above, Romero’s job
duties took him to many parts of the Imperial facility. In the
May 7 warning Respondent failed to determine if Romero’s
visits to the service department were for work or nonwork pur-
poses. The witnesses Respondent interviewed provided
equivocal information in this regard. It was admitted that su-
pervisor Threedouble did not know whether Romero’s visits to
the service department were work-related or not. Service de-
partment employee Anguiano testified that Romero visited to
discuss work-related matters, such as whether the service de-
partment could use parts that Respondent was to discard. Other
times Romero visited Anguiano and talked to him about the
Union. According to Anguiano, Romero visited the service
department two to three times a week for 10 to 15 minutes dur-
ing breaks and worktime. Even though Romero sometimes
talked about the Union, Anguiano could not say which topics
Romero discussed during breaks versus during worktime.
While Von Puschendorf claimed to have verbally counseled
Romero in April for disrupting service department employees,
there is no evidence that Von Puschendorf conducted an inves-
tigation into this incident to determine if Romero was talking to
employees on worktime. Given the paucity of evidence Re-
spondent possessed to show Romero was out of his work area
engaged in nonwork activity, an inference can be drawn that
Respondent’s suspension of Romero was pretextual. Respon-
dent has failed to show that it suspended Romero for valid rea-
sons. I find that Respondent’s May 7 suspension of Romero
violated Section 8(a)(3) of the Act.
d. The May 10 termination of Romero
Having previously found that Respondent violated Section
8(a)(3) of the Act for twice warning and then suspending Ri-
cardo Romero for engaging in union activity, I conclude that
the General Counsel has likewise established a prima facie case
that Respondent terminated Romero in violation of Section
8(a)(3) of the Act. Respondent bears a heavy burden under
Wright Line to establish that it would have fired Romero in the
absence of his union activity.
Respondent’s contends that it fired Romero for his repeated
violation of its sexual harassment policy. At first blush, it
would appear that Respondent had ample evidence that Ro-
mero’s behavior in 2001 violated company sexual harassment
policy. Thus even Romero admitted that he touched employees
in a sexual manner and used profane and obscene language at
work. During Respondent’s investigation of Nestor Sanchez’
sexual harassment complaint against Ricardo Romero other
employees indicated that Romero had touched them in a sexu-
ally offensive manner at work. Moreover, Respondent had
previously warned Romero in February for his use of profane
language.
However, Respondent’s investigation ignored that its sexual
harassment policy was a sham. It was a policy regularly dis-
honored by both employees and supervisors alike. The record
is replete with instances of sexually oriented conduct by super-
visors as well as employees. Supervisors and employee rou-
tinely and frequently touched each other’s buttocks, chest, and
genitals; cursed at and called each other vulgar names; e-mailed
sexual jokes, and circulated pornographic material through
Respondent’s e-mail system. Respondent’s supervisors were
often present when employees mimicked sexual acts. Supervi-
sors never attempted to stop employees from engaging in this
conduct. Supervisors never instructed the security guard,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD252
whose job responsibility was to report employees’ activities to
management, to report this conduct. In fact, employees did not
report the sexually oriented conduct because it was so common.
Respondent’s supervisors not only permitted the activity,
they participated in it as well. Employees testified that several
supervisors touched and grabbed employees’ genitals and but-
tocks. Trotter testified that twice employee Alberto Vela
grabbed him, yet Trotter never disciplined Vela. Supervisor
Trotter testified that Machuca on two separate occasions
touched an employee’s buttocks. Trotter did not discipline Ma-
chuca.
The record reveals that Von Ahn and Von Puschendorf sent
and received sexual e-mails over the Respondent’s computer
system. Von Puschendorf printed sexual e-mails and forwarded
the e-mails to employees and vendors. Even though Vitelli
conceded that printing the sexual jokes on Respondent’s printer
violated the sexual-harassment policy, neither Von Ahn nor
Von Puschendorf was disciplined. Von Puschendorf e-mailed
the “Pick-Up Lines” document 4 days before Romero was ter-
minated for violating the sexual harassment policy.
It is apparent from Respondent’s disparate treatment of Ro-
mero’s behavior, when compared to Respondent’s permissive
treatment of its supervisors’ and employees’ behavior, that its
sexual harassment defense is mere pretext. The real reason for
Respondent’s termination of Romero was his efforts to organ-
ize its employees.
Therefore, Respondent has failed to rebut the General Coun-
sel’s prima facie case that it unlawfully discharged Ricardo
Romero for his union activities. I find that Respondent’s dis-
charge of Ricardo Romero violated Section 8(a)(3) of the Act.
e. The July 9 reduction of Lopez’ job duties
Olga Lopez did not engage in any union or other protected-
concerted activity. However, an employer may violate Section
8(a)(3) of the Act if it discriminates against an employee based
upon what it perceives are the employee’s union activities even
if the employer is mistaken. Handicabs, Inc., 318 NLRB 890,
897 (1995); Henning and Cheadle, Inc., 212 NLRB 776 (1974);
enfd. 522 F.2d 1050 (7th Cir. 1975).
While it is clear that Lopez did not engage in union activity,
Respondent expressed a morbid curiosity in her relationship
with union organizer Jorge Romero, who Vitelli knew was
actively engaged in organizing efforts. Thus, in July, Supervi-
sor Rodriguez asked Hernandez if she knew if Jorge Romero
and Lopez were cousins. Hernandez stated that she did not
know. After Lopez’ duties were reduced, Supervisor Rodri-
guez informed Lopez that during a March supervisors’ meeting,
Vitelli asked him if he knew that Jorge Romero and Lopez were
cousins. Rodriguez told Vitelli that he did not think so, and
Vitelli replied how was it then that the Union visited employees
and knew employees’ addresses. On July 9, when Lopez’ job
duties were reduced and Lopez’ access to employee files was
removed, Strauss explained the connection between Lopez’
reduced duties and the Union. Strauss commented that during
her absence on maternity leave, a lot of information had filtered
out of the human resources office and employees were com-
plaining that the Union was visiting them at their homes. This
statement was a thinly veiled insinuation that Lopez was the
source of the information leaks to the Union. When Lopez
asked Strauss if the reduction was because Respondent thought
she and Jorge Romero were cousins, Strauss told Lopez that
Lopez could not prove that. Finally, on July 17, Vitelli asked
Rivera if he thought Lopez was involved with the Union and
Rivera stated that he did not think so.
The administrative law judge in Handicabs, supra, con-
cluded, “. . . the Act is violated if an employer acts against the
employee in the belief that he has engaged in protected activi-
ties.”68 I find that Respondent was motivated by its anti union
animus and terminated Lopez in the belief she was engaged in
union activity within two weeks of making inquiry into her
union sympathy.
In defense, Respondent argues that the only duty removed
from Lopez on July 9 was her safety function at the Kraemer
facility. However Strauss’ e-mail of July 9 clearly states that
Lopez’ duties were limited to first aid, safety training, ordering
safety supplies and providing employees with safety equip-
ment. Significantly the e-mail notes that Strauss was now in
charge of employee files and sending employees to the clinic.69
This was a significant reduction in Lopez’ duties. Lopez’ du-
ties, including inspection of safety equipment, assistance of
employees with transportation to the health clinic and comple-
tion of clinic forms, ordering first aid supplies, investigating
work injuries, assisting employees fill out workers’ compensa-
tion forms, and maintaining the OSHA and VOC logs were
removed. The e-mail confirms that Strauss removed Lopez’
access to the employee files, consistent with Strauss concern
that Lopez was leaking employee information to the Union.
Respondent’s defense that it did not significantly reduce Lopez’
duties is simply not supported by the facts. I find that Respon-
dent has failed to sustain its burden under Wright Line and I
find that Respondent violated Section 8(a)(3) of the Act by
reducing Lopez’ job duties on July 9.
f. The August 1 termination of Lopez
Having found that Respondent violated Section 8(a)(3) of the
Act in reducing Lopez’ job duties due to Respondent’s percep-
tion that Lopez was engaged in union activity, it follows that
the General Counsel has established a prima facie case that
Respondent’s termination of Lopez 3 weeks later violated Sec-
tion 8(a)(3) of the Act. Respondent must show that its termina-
tion of Lopez on August 1 would have occurred even if it did
not believe she was engaged in union activity.
Respondent contends that it terminated Lopez in an overall
layoff of employees due to an economic slowdown. While
Respondent produced no documentary evidence to support its
contention that sales in 2001 were lower than in previous years,
I will assume arguendo that this was the case. Moreover, there
is no dispute that in 2001 there were about 200 employees laid
off in various departments.
The plan for the layoffs was formulated by Respondent’s
vice president, Michael Hill, and given to his managers, includ-
ing Strauss, at the department head’s meeting during the first
week of July. The plan required each department head to lay

68 Handicabs, supra at 897.
69 See GC Exh. 15.
KRYSTAL ENTERPRISES 253
off 20 percent of their work force (departments with five or less
employees had to lay off at least one employee) or to cut all
employees’ pay 20 percent. Strauss chose to lay off employees
rather than reduce pay.
When human resources clerk Hilary Gonzales quit on July
24, Strauss had met her quota to lay off 20 percent of the hu-
man resources department work force, nevertheless Strauss laid
Lopez off on August 1. Respondent proffered no evidence that
temporary employees like Gonzales did not count toward the
20-percent reduction in force. Respondent offered no explana-
tion for this violation of Hill’s plan.
I find that Respondent’s economic defense for Lopez’ layoff
is a pretext to disguise the true motivation for her discharge, her
apparent union activities. Having already met her quota for the
layoff of one employee in the human resources department,
Strauss had no reason to discharge Lopez other than to elimi-
nate an apparent union supporter.70 I conclude that Respondent
has failed to sustain its burden of proof under Wright Line and I
find that Lopez was terminated in violation of Section 8(a)(3)
of the Act.

70 Any argument that Lopez was laid off to comply with Hill’s re-
quirement that all departments reduce hours by 20 percent when they
failed to layoff employees is spurious, since the human resources de-
partment had already reduced its manpower by 20 percent. An addi-
tional 20-percent reduction-in-force would have been punitive and only
enforces the pretextual nature of Lopez’ layoff.
CONCLUSIONS OF LAW
By interrogating its employees about their and other employ-
ees’ union activities, by threatening its employees with reprisals
for engaging in union activities, by creating the impression that
employees’ union activities were under surveillance, by deny-
ing employees access to union representatives, by maintaining
an overly broad no-solicitation/no-distribution rule, by warning,
suspending and terminating Ricardo Romero and by reducing
the duties of and terminating Olga Lopez, Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]