La Favorita, Inc.

National Labor Relations Board - Board Decisions

May 9, 1991

302 N.L.R.B. 849 (N.L.R.B. 1991)

849
302 NLRB No. 131
LA FAVORITA, INC.
1 The Respondent has excepted to the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 In adopting the judge’s recommended Order directing a new election based
on the Respondent’s objectionable conduct, we rely on the incidents occurring
after the filing of the representation petition on September 20, 1989, in which
employee Margarito Gonzales, on behalf of Gilbert Gamez, offered hourly
raises to the Garcia brothers in exchange for their antiunion votes, and co-
owner Sylvia Gamez questioned employee Margarita Medina about how Me-
dina was going to vote.
3 The Notice of Second Election to be issued by the Regional Director shall
be in both English and Spanish and such other languages as the Regional Di-
rector determines are reasonable and necessary to communicate fully with vot-
ers, and shall include language informing employees that the first election was
set aside because the Board found that certain conduct by the Respondent
interfered with the employees’ free choice. Lufkin Rule Co., 147 NLRB 341,
342 (1964).
La Favorita, Inc. and United Food and Commercial
Workers Union, Local No. 7. Cases 27–CA–
11014–8, 27–CA–11210, and 27–RC–7014
May 9, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On October 24, 1990, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, and to adopt his recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, La Favorita, Inc., Denver,
Colorado, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
IT IS FURTHER ORDERED that Case 27–RC–7014 is
severed from Cases 27–CA–11014–8 and 27–CA–
11210, and that Objections 3 and 6 to the conduct of
the election filed in Case 27–RC–7014 are sustained
and the election is set aside; and that Case 27–RC–
7014 is remanded to the Regional Director for Region
27 for the purpose of conducting another election at
such time as he deems the circumstances will permit
the free choice of a bargaining agent.3
[Direction of Second Election omitted from publica-
tion.]
Michael J. Belo, Esq., for the General Counsel.
Gustav V. Achey, Esq., of Denver, Colorado, for the Re-
spondent Employer.
Earnest L. Duran, Jr., Esq., of Wheat Ridge, Colorado, for
the Charging Party Petitioner.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard the above-captioned consolidated cases in trial in Den-
ver, Colorado, on various days in the period April 3, through
July 18, 1990. Timely posthearing briefs were received on
September 12, 1990. The cases arose as follows.
On September 20, 1989, United Food and Commercial
Workers Union, Local No. 7 (the Petitioner, the Union, or
the Charging Party) filed a petition docketed as Case 27–
RC–7014 seeking to represent certain employees of La
Favorita, Inc. (the Employer or Respondent). An election was
held on November 3, 1989, and thereafter timely objections
were filed by the Union. On February 8, 1990, the Acting
Regional Director for Region 27 issued a Regional Director’s
supplemental decision on and objections to election, order di-
recting hearing and notice of hearing, and order consolidating
hearing with Case 27–CA–11014–8. That order, inter alia, di-
rected that a hearing be held on Petitioner’s Objections 3 and
6.
On October 24, 1989, the Union filed a charge docketed
as Case 27–CA–11014–8 against Respondent. Following an
investigation on November 16, 1989, the Regional Director
issued a complaint and notice of hearing respecting Case 27–
CA–11014–8. As noted supra, the two cases were consoli-
dated for a common hearing by the Regional Director’s Feb-
ruary 8, 1990 order. On February 5, 1990, the Union filed
a charge docketed as Case 27–CA–ll210 against Respondent.
The Union thereafter amended the charge on March 1, 1990,
and further amended the charge on March 6, 1990. Following
an investigation, the Regional Director on March 8, 1990,
issued an order consolidating cases, consolidated complaint
and notice of hearing consolidating the three cases captioned
above for a common hearing.
The consolidated complaint alleges that agents of Re-
spondent in August, September, and November 1989 en-
gaged in various acts violative of Section 8(a)(1) of the Na-
tional Labor Relations Act (Act). The consolidated complaint
further alleges that Respondent in December 1989 and Janu-
ary 1990 refused to rehire an employee: (1) because of the
former employee’s protected concerted and union activities
in violation of Section 8(a)(3) and (1) of the Act and (2) be-
cause the former employee had given an affidavit to the
Board during the investigation in violation of Section 8(a)(4)
and (1) of the Act. Respondent denies that it has in any way
violated the Act.
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine, and
cross-examine witnesses, to argue orally, and to file
posthearing briefs.
On the entire record herein, including helpful briefs from
the General Counsel and Respondent, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 As a result of the pleadings and the stipulations of counsel at the trial,
there were few disputes of fact regarding collateral matters. Where not other-
wise noted, the finding herein are based on the pleadings, the stipulations of
counsel, or unchallenged credible evidence.
FINDINGS OF FACT1
I. JURISDICTION
At all times material Respondent has been a Colorado state
corporation with an office and places of business in Denver,
Colorado, where it has been engaged in the baking and sell-
ing of flour and corn tortillas and the operation of a
delicatessen/restaurant.
Respondent in the course and conduct of its business oper-
ations, annually purchases and received goods, materials, and
services valued in excess of $50,000 from other enterprises
within the State of Colorado that received said goods, mate-
rials, and services directly in interstate commerce. Respond-
ent annually sells and ships goods, materials, and services
valued in excess of $50,000 directly to other enterprises
within the State of Colorado that are directly engaged in
interstate commerce.
The parties agree, and I find, that Respondent is now and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a corporation principally owned by Gilbert
Gamez and Sylvia Gamez, husband and wife. Respondent
has two facilities, a tortilla bakery and a restaurant-deli-
catessen a few miles away. On August 14, 1989, the Union
through its part-time organizer, Wilbert Martinez, appeared at
the tortilla bakery and commenced an organizing campaign.
In the days that followed Martinez remained in the area talk-
ing to employees where possible. On September 20, 1989, a
representation petition was filed by the Union. A Board-con-
ducted election was held on November 3, 1989. The relevant
events discussed below occurred in the context of the organi-
zation and election campaign.
B. Evidence
1. The allegations of violations of Section 8(a)(1)
of the Act
a. Allegations of misconduct by Gamez in mid-
August 1989
(1) Interrogations and threats
Former employee Valentin Garcia testified that he spoke
to the union organizer the first day he saw him and gave
Martinez his name. Garcia testified that the following day he
went to punch his timecard with a fellow employee but dis-
covered that their timecards had been removed from the
timecard rack. Valentin Garcia testified that he then spoke to
Gilbert Gamez who had possession of the timecards. Gamez,
in Garcia’s recollection, asked what had been said to the or-
ganizer. Garcia answered that ‘‘he had just asked for our
names, and that to simply give our names to somebody was
not doing anything wrong.’’ Garcia recalled that Gamez told
him that he had already fired one employee who had given
his name to the organizer and that ‘‘if we continued that he
was going to fire us, as well.’’ Gamez then returned the
timecards to the employees and went into his office. Gamez
denied that the described events ever took place.
Jesus Raul Rodriguez testified that within a few days of
the organizer’s appearance, he was standing outside of the
plant at the end of the day at a time when Martinez was
nearby. Rodriguez testified that he asked Gamez about
Sousa, an employee Rodriguez had not seen recently.
Rodriguez testified Gamez told him that he had fired Sousa
because he had been talking to the ‘‘union man’’ and that
he would fire Rodriguez if he saw him talking to Martinez.
Gamez denied that these events took place.
Rigoberto Briones testified that a few days after the orga-
nizer appeared he had a conversation with Gamez while
working in which Gamez said ‘‘he didn’t want to see any-
body talk to Martinez or else he would fire them.’’ Gamez
denied ever conversing with Briones about the Union.
Alicia Basquez testified that on August 20, 1989, she
asked Gamez for a transfer from the evening to the day shift.
She recalled Gamez said there was at the time no space
available. He then asked Basquez if she had talked to the
‘‘union guy.’’ Basquez said no. Gamez continued the con-
versation, in Basquez’ memory, stating that he had let em-
ployees go because they had talked to the union organizer.
Gamez denied having had this conversation.
(2) Inducement to assault
Valentin Garcia testified that on or about August 19, 1989,
he was approached by Gamez as he prepared to use a high
pressure hose to wash the floors. Garcia testified that Gamez
offered him money to ‘‘give a bath’’ to the organizer. Garcia
declined, whereupon he was told by Gamez to turn the
equipment over to fellow employee Patricio Reyna. In Gar-
cia’s recollection, Gamez then told Reyna to ‘‘pretend that
he was going to be washing his van, and when Martinez
went by to go ahead and spray him.’’ Garcia testified that
although water was sprayed toward Martinez by Reyna, the
effort was not a success and Martinez did not necessarily
even get wet.
Patricio Reyna testified that he was not offered money to
spray Martinez. Further he testified that the occasion on
which he sprayed water toward Martinez while washing the
van was inadvertent and unintentional. Gamez denied the
conduct attributed to him by Garcia.
b. Allegation of a promise of raises just before
the election
Margarito Gonzales Herrera, known to the others involved
herein as Margarito Gonzales, had been an employee of Re-
spondent for many years. He testified that a week or two be-
fore the election Gamez mentioned that he was considering
raising the wages of Gonzales and his two cousins, brothers
Valentin and Petronilo Garcia, by the sum of 50 cents per
hour. About 1 week later, the two had a second conversation.
851LA FAVORITA, INC.
Gamez told Margarito Gonzales that the three employees
‘‘needed to vote against the Union . . . that he would give
us 50 cents [per hour wage increase] if we voted against the
Union.’’ Gamez, in Gonzales’ recollection, asked him to con-
vey this message to the brothers Garcia. Gamez denied this
conversation took place.
Valentin Garcia testified that he and his brother, Petronilo
Garcia, were leaving the plant the day before the election
when Gamez approached them. Petronilo continued walking
but Valentin stopped to talk. Gamez told him the Union was
not a ‘‘bargain’’ for employees, but was rather a trick.
Gamez, in Valentin Garcia’s recollection, then directed him
to talk to his cousin and fellow employee, Margarito
Gonzales, who, Gamez suggested, ‘‘knew everything.’’
Gamez denied these events ever transpired.
Valentin Garcia testified he then spoke to Margarito
Gonzales in the parking lot asking him ‘‘what it was that
Gilbert [Gamez] was bringing.’’ Gonzales reported that
Gamez ‘‘was going to offer to increase our salary by one
dollar if we voted ‘no’,’’ naming the brothers Garcia and
himself as the beneficiaries of the promised wage increase.
Valentin Garcia responded, in his recollection, ‘‘that it was
too late because we had already asked Gilbert for an increase
and he had never been willing to give us one.’’ Gonzales re-
called the events similarly save that the promised increase
was 50 cents per hour and that Valentin responded that he
could not accept the offer because he was ‘‘inside the
Union.’’
Valentin Garcia testified he and Petronilo Garcia had a
conversation with Margarito Gonzales the following morning,
before the election. Valentin Garcia recalled Gonzales told
the brothers: ‘‘Gilbert [Gamez] is offering a dollar in order
to vote ‘no’, so earn it.’’ Valentin recalled that both he and
his brother responded that, inasmuch as they had previously
asked for an increase in wages without success, ‘‘we were
going to cooperate with the Union as much as we could.’’
Petronilo generally corroborated his brother’s version of
events. Margarito Gonzales’ version differed only (1) in his
recollection that the events occurred a day or two earlier, (2)
that the promised increase was to be 50 cents per hour, and
(3) that Petronilo responded that he could not change his
opinion because he was already ‘‘inside the Union.’’
Gonzales testified that he reported these conversations to
Gamez. Gamez denied such a conversation took place.
Gonzales received a $.50 per hour wage increase on Novem-
ber 16, 1989.
c. Allegation of interrogation by S. Gamez on the day
of the election
Margarita Medina, then an employee of Respondent, testi-
fied that about 5:30 p.m. on the day of the election she was
at a friend’s home when she received a phone call. She ini-
tially spoke to an employee than to S. Gamez. S. Gamez
asked her why she had not gone to vote. Medina answered
that she had been busy and that she did not have a ride to
the facility where the vote was being held. S. Gamez then
asked how Medina was going to vote. Medina answered
‘‘no,’’ whereupon S. Gamez said she would send a cab for
Medina. Ultimately Medina voted in the election. S. Gamez
denied that the interrogation occurred.
C. The Allegation of Violations of Section 8(a)(3) and
(4) of the Act
On November 12, 1989, Valentin Garcia asked Respond-
ent for a leave of absence. His written request stated:
Mr. Gilbert Gamez
I’m request a Personal Leave of Absence from the
day 11/15/89. Be back until my wife have our baby. I
understand that a Personal of Leave of Absence is with-
out pay. When everything past I will return to work.
Sincerely,
Valentin Garcia
[address omitted]
[phone number omitted]
After submitting his request, Garcia had a conversation
with Gamez at his workplace. Garcia testified that Gamez
said:
Thank you very much for letting me know that you’re
going to leave because talking is how people under-
stand one another. And he told me that whenever I
wanted to return that my job would be there for me,
no matter what it were to be.
At the end of the workday on November 15, Garcia re-
ceived the following letter in Spanish and English:
Your request for a leave of absence, without pay, be-
ginning November 16, 1989 is granted. The leave of
absence is for 5 days. If you do not return to work on
or before November 21, 1989 you will have to reapply
for employment with La Favorita, Inc. If it is necessary
for you to reapply for employment with La Favorita,
Inc., you will be given priority consideration if and
when there is and [sic] opening.
Mr. and Mrs. Garcia had their baby on November 26,
1989. Complications required Mrs. Garcia to remain at home
in bed through December. Valentin Garcia returned to Re-
spondent’s bakery on December 15 and there spoke with
Gamez. Garcia testified Gamez told him there was no work
due to Christmas but that he should continue checking and
to fill out a new application. Garcia completed a new appli-
cation, left the facility and did not return until January 21,
1990. On that occasion Gamez told Garcia he was too late,
that others had been hired.
Gamez testified that Respondent had no position available
when Garcia announced his availability for work on Decem-
ber 15, 1989. Work did become available on or about De-
cember 18, 1989, and, although he testified it was quite un-
usual, Gamez telephoned Garcia and several others that day
to offer each employment. Gamez testified that he called
Garcia several times at his home, letting the phone ring for
5 minutes at a time without answer. Mrs. Garcia testified she
was bedridden during the month of December and that her
telephone was on the night stand next to her bed in operating
condition throughout the month. She testified she received no
telephone calls from Respondent and could not have missed
such a call had it been placed.
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 This does not mean I accept the recalled dates of the events as fixed. Thus,
Valentin Garcia’s recited timecard conversation could well have occurred on
a different date.
D. Analysis and Conclusions
1. Credibility resolutions
The parties at trial and on brief ably marshalled argument
and authority for their respective positions. In my view how-
ever the heart of this case is the strong and consistent con-
flict between the versions of events offered by Respondent
and the General Counsel’s witnesses. To an unusual degree
the testimony is diametrically in opposition. Resolution of
these conflicts in my view significantly resolves the issues in
controversy for, once resolution of the factual disputes is
concluded, the legal doctrines applicable are uncomplicated
and not in essential dispute. It is appropriate then to turn to
the conflicting events.
Gilbert Gamez unequivocally denied the statements attrib-
uted to him by Valentin Garcia, Jesus Rodriguez, Rigoberto
Briones, and Alicia Basquez. I credit each employee over
Gamez. I do so in part based on the mutually corroborative
pattern of events described by these witnesses. Primarily
however, I reach this conclusion because I found Gamez’ de-
meanor to be unpersuasive particularly when arrayed against
the various witnesses involved herein. These witnesses were
neither glib nor aggressive. The process of translation ren-
dered much of their testimony uneven and halting. Despite
these circumstances, I was convinced that they were testi-
fying as best they could to what they recalled took place and
that the events and conversations described were neither
manufactured nor misattributed.2 Gamez, however, left me
with the strong impression that he was simply denying those
events and statements attributed to him which he felt were
inconvenient or embarrassing. I do not believe he felt con-
strained by the truth to fully describe events as he recalled
them. I came to the conclusion that Gamez’ testimony was
designed to sustain a considered defense to the allegations
rather than recite events as they were recalled. In making this
resolution I include employee Patricio Reyna’s testimony in
that rejected on the basis of demeanor as constituting no
more than incredible, self-serving denials.
The final complaint allegation addressing Section 8(a)(1)
of the Act places the testimony of S. Gamez and Margaret
Medina in opposition. I found Medina to be a direct and
honest witness with a sound demeanor. I did not reach the
same conclusion with respect to S. Gamez who, in my view,
like her husband, was simply denying a telephone conversa-
tion that was embarrassing to admit. I credit Medina’s
version of the conversation and discredit the denial of S.
Gamez.
The allegations respecting Section 8(a)(3) and (4) of the
Act array the testimony of Gamez against Mr. and Mrs.
Valentin Garcia. Gamez testified that he telephoned the Gar-
cia residence several times on November 18, 1989, letting
the phone ring for long periods without getting an answer.
Mrs. Garcia testified she was continuously within arm’s
reach of her telephone and no calls from Gamez came. Mrs.
Garcia was a straightforward and convincing witness. I do
not credit Gamez who stands earlier contradicted on other as-
pects of the case by various witnesses each of whom I cred-
ited supra. Based on my determinations respecting his credi-
bility set forth supra, I find Gamez did not call Valentin Gar-
cia to offer him employment on December 18, 1989, or any
other day, even though on December 18, 1989, he did call
other individuals and offer them employment.
2. Conclusions
Given the credibility resolutions described above I make
the following conclusions respecting the allegations of the
complaint.
a. The 8(a)(1) allegations concerning Gamez
I have credited the testimony of the General Counsel’s
witnesses concerning the statements made by Gamez to em-
ployees. Thus, I have found that Gamez, the chief executive
officer of Respondent, offered money to employees to assault
a union organizer with a high pressure water hose, threatened
employees with discharge if they spoke to a union organizer,
and told employees other employees had been discharged be-
cause they had spoken to a union organizer. Each action is
a conventional violation of Section 8(a)(1) of the Act and I
so find. Accordingly, I sustain paragraphs 5(a), (b), (c), and
(d) of the complaint.
b. The 8(a)(1) allegation concerning Margaro Gonzales
I have credited Gonzales, Valentin Garcia, and Petronilo
Garcia respecting the conduct they attributed to Gamez, dis-
crediting his denials. Accordingly, I have found that Gamez
requested that Gonzales offer wage increases to the Garcia
brothers in exchange for their votes against the Union and
that Gonzales carried out Gamez’ instructions by so inform-
ing the brothers and reporting their responses back to Gamez.
While Gonzales was not a supervisor, his actions were in
precise accordance with Gamez’ instructions. There is no
doubt therefore that Gonzales was an agent of Gamez and
Respondent in carrying out Gamez’ instructions. Therefore
Respondent is liable for Gonzales’ actions.
An employer violates Section 8(a)(1) of the Act when it
offers employees wage increases conditioned on their casting
votes against a labor organization in an NLRB conducted
election. Respondent engaged in such conduct here and
therefore violated Section 8(a)(1) of the Act. Accordingly, I
sustain paragraph 5(e) of the complaint.
c. The 8(a)(1) allegation concerning Sylvia Gamez
I have found above that S. Gamez asked an employee how
she was going to vote in the Board election as part of a
course of conduct designed to encourage voting by an em-
ployee who expressed an intention to vote against the Union.
Such conduct is also a traditional violation of Section 8(a)(1)
of the Act and I so find. Accordingly, I sustain paragraph
5(f) of the complaint.
d. The 8(a)(3) allegation concerning the failure to
rehire Valentin Garcia
As set forth supra, I have found that Gamez threatened
Garcia with termination if he contacted the union organizer
and that Valentin Garcia rebuffed Gamez’ monetary induce-
ments both to assault the union organizer and to vote against
the Union. Finally, I have found that Gonzales reported to
Gamez that Valentin Garcia would not vote against the
Union because he was ‘‘inside’’ it. These findings establish
853LA FAVORITA, INC.
3 In light of the wage increase given Gonzales as discussed above, I also
find that Valentin Garcia should properly have received the same increase on
his reinstatement and that this fact should be considered in determining the
amount of Valentin Garcia’s backpay in this matter.
Gamez’ knowledge of and hostility to Valentin Garcia’s
union activities.
Consistent with the unchallenged evidence, I further find
that Garcia had been told in writing by Respondent at the
time he took his leave of absence that he had ‘‘priority con-
sideration’’ for reemployment, that he had announced his de-
sire to return to work on December 15, 1989, that work be-
came available on December 18, 1989, and that Garcia called
other individuals on December 18, 1989, to offer them work
and thereafter employed them. I find therefore that no valid
reasons exists on this record why Respondent should not
have offered Valentin Garcia reemployment as of that date.3
The General Counsel has clearly established a strong prima
facie case respecting Respondent’s failure to rehire Valentin
Garcia.
I have discredited the assertion of Gamez that he at-
tempted to telephone Valentin Garcia on December 18, 1989,
to inform him of the availability of work. Rather I found that
no such effort was made. Accordingly, I find Respondent
fails completely to show why Garcia was not rehired on De-
cember 18, 1989. In light of all the above and the record as
a whole, I further find that Valentin Garcia was denied rein-
statement because of his union activities in violation of Sec-
tion 8(a)(3) of the Act.
e. The 8(a)(4) allegation concerning the failure to
rehire Valentin Garcia
The General Counsel further argues that the Union’s ob-
jection 3, quoted infra, was served on Respondent on No-
vember 8, 1989, and that from its language Respondent knew
that Valentin Garcia was a source of the information under-
lying the objection. The General Counsel also notes that Gar-
cia gave the Board an affidavit on December 6, 1989, re-
specting the allegations. Gamez denied any knowledge of
these facts.
The General Counsel is correct that ‘‘a reasonable infer-
ence should be made that Gamez suspected either Valentin
or Petronilo Garcia of providing evidence to support the
Union’s objection about the offer of a raise [objection 3]’’
(Br. p. 23). The inference to be drawn from the language of
the objection however addresses Valentin Garcia giving evi-
dence to the Union not necessarily his giving evidence to the
Board. Indeed the objection concludes with the statement:
‘‘This information was reported to Wilbert Martinez, union
organizer.’’ Given all of the above, I conclude the objection
does not support an inference the Respondent knew Valentin
Garcia gave an affidavit to the Board. Nor is there any other
evidence sufficient to sustain such a finding. Since an em-
ployee’s cooperation with a labor organization in the prepa-
ration of election objections is protected by Section 8(a)(3)
of the Act and not Section 8(a)(4) of the Act, no violation
of Section 8(a)(4) may be found on this record. Accordingly,
I find the General Counsel has not sustained the 8(a)(4) alle-
gation in the complaint. Therefore, I shall dismiss paragraph
8 of the complaint.
f. Summary
Based largely on demeanor and credibility, I have sus-
tained the General Counsel’s complaint allegations of viola-
tions of Section 8(a)(1) and (3) of the Act. I have found that
the General Counsel has failed to sustain the allegations of
the complaint respecting Section 8(a)(4) of the Act, which I
shall dismiss.
IV. THE OBJECTIONS
A. Language of Union Objections
The two objections consolidated with the unfair labor
practice allegations of the complaint are as follows:
Objection 3
Shortly before voting, employees were told that if
they voted against the Union, they would receive $1.00
per hour raises. This ‘‘offer’’ was made through an em-
ployee who was seen speaking to the employer, Gilbert
Gamez, for a long time just before votes were cast.
This information was reported to Wilbert Martinez,
union organizer.
Objection 6
The Union would note that the Employer was many
times made statement threatening and coercing employ-
ees to discourage pro-union sentiment. Thus, the Em-
ployer has destroyed the ‘‘laboratory-type conditions’’
necessary for a fair election.
B. Ruling on Objections
1. Objection 3
The Union’s objection 3 raises the contentions discussed
supra in consideration of paragraph 5(e) of the complaint.
Having sustained the contentions of the General Counsel that
Gamez’ conduct violated Section 8(a)(1) of the Act. I further
find here that it also constitutes objectionable conduct.
2. Objection 6
The Union’s objection 6 is a catchall contention which in-
corporates all allegations of the complaint occurring after the
filing of the petition and before the election, i.e., paragraph
5 alleging various violations of Section 8(a)(1) of the Act.
Having sustained those allegations supra, I further find that
the conduct found violative of Section 8(a)(1) of the Act also
constitutes objectionable conduct. White Plains Lincoln Mer-
cury, 288 NLRB 1133 (1988).
3. Summary and conclusion
Based on the factual discussion appearing supra in the sec-
tion addressing the alleged unfair labor practices, I sustain
the Union’s objections 3 and 6. Accordingly, I shall rec-
ommend that the Board direct a new election. I shall further
recommend that the Board direct that the new notice of elec-
tion comply with the remedial provisions set forth in Lufkin
Rule Co., 147 NLRB 341 (1964), and also specifically ad-
dress the rights to employees to vote free of financial induce-
ments.
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. l02.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. l02.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
5 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to effec-
tuate the purposes and policies of the Act.
I shall recommend that Respondent offer Valentin Garcia
full and immediate reinstatement to the position he would
have held, but for Respondent’s wrongful refusal to rehire
him on December 18, 1989.
Further Respondent shall be directed to make Valentin
Garcia whole for any and all loss of earnings and other
rights, benefits and emoluments of employment he may have
suffered by reason of Respondent’s discrimination against
him, with interest. Backpay shall be computed in the manner
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as provided in New Horizons for the Retarded,
283 NLRB 1173 (1987); see also Florida Steel Corp., 231
NLRB 651 (1977), and Isis Plumbing Co., 139 NLRB 716
(1962).
Respondent shall also be required to expunge any and all
references to its refusal to rehire Valentin Garcia from its
files and notify Valentin Garcia in writing that this has been
done and that the refusal to rehire him will not be the basis
for any adverse action against him in the future. Sterling
Sugars, 261 NLRB 472 (1982).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by en-
gaging in the following acts and conduct:
(a) Offering employees money to assault union organizers.
(b) Threatening to terminate employees if they talked with
a union organizer.
(c) Threatening employees by telling them that other em-
ployees had been terminated for talking to a union organizer.
(d) Offering employees raises if they would vote no in a
union election conducted by the National Labor Relations
Board.
(e) Interrogating employees about their voting preferences
so that employees who opposed the Union could be encour-
aged to vote.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by failing and refusing to rehire Valentin Garcia on Decem-
ber 18, 1989, because of his union activities.
5. Respondent has not otherwise violated the Act as al-
leged.
6. Respondent destroyed the laboratory conditions nec-
essary to hold a free and fair election through the conduct
described in the analysis of paragraph 5 of the complaint,
supra.
Based on the above findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended4
ORDER
I. ORDER RESPECTING UNFAIR LABOR PRACTICES
The Respondent, La Favorita, Inc., Denver, Colorado, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Offering employees money to assault union organizers.
(b) Threatening to terminate employees if they talk with
a union organizer.
(c) Threatening employees by telling them that other em-
ployees had been terminated for talking to a union organizer.
(d) Offering employees raises if they would vote no in the
union election conducted by the National Labor Relations
Board.
(e) Interrogating employees about their voting preferences
so that employees who opposed the Union could be encour-
aged to vote.
(f) Failing and refusing to rehire employees because of
their union activities.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate employment to former employee
Valentin Garcia to the position he would have held, but for
Respondent’s wrongful refusal to rehire him on December
18, 1989.
(b) Make whole former employee Valentin Garcia for any
and all losses incurred as a result of Respondent’s unlawful
refusal to rehire him, with interest, as provided in the section
of this Decision entitled ‘‘Remedy.’’
(c) Remove from its files any and all references to the re-
fusal to rehire Valentin Garcia and notify him in writing that
this has been done and that the fact of Respondent’s refusal
to rehire him will not be used against him in any future per-
sonnel actions.
(d) Post at each of its Denver, Colorado facilities copies
of the attached notice marked ‘‘Appendix.’’5 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 27, in English, Spanish, and such other languages as the
Regional Director determines are necessary to fully commu-
nicate with employees, after being signed by Respondent’s
authorized representative, shall be posted for 60 consecutive
days in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure the notices are not
altered, defaced, or covered by other material.
(e) Notify the Regional Director in writing within 20 days
from the date of the Order what steps Respondent has taken
to comply.
II. ORDER RESPECTING THE REPRESENTATION CASE
1. The Union’s objections 3 and 6 are sustained and a new
election shall be directed consistent with the Board’s practice
in such circumstances.
855LA FAVORITA, INC.
2. The following language, as provided in the Board’s de-
cision in Lufkin Rule Co., 147 NLRB 341, 342 (1964), shall
be included in the notice of election to be issued in this mat-
ter in both English and Spanish and such other languages as
the Board and/or the Regional Director determine are reason-
able and necessary to fully communicate with voters.
The election conducted on November 3, 1989, was
set aside because the National Labor Relations Board
found that certain conduct of the Employer interfered
with employees’ exercise of a free and reasoned choice.
Therefore a new election will be held in accordance
with the terms of this notice. All eligible voters should
understand that the National Labor Relations Act, as
amended, gives each eligible voter the right to cast his
or her ballot as he or she sees fit, and protects all vot-
ers in the exercise of that right, free from interference
by any of the parties. Voters are specifically informed
that the Employer or its agents are not permitted to ask
you how you are going to vote, to suggest how you
should vote or to offer you any thing of value such as
a wage increase in order to cause you to vote against
the Union.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which we appeared and presented evi-
dence, the National Labor Relations Board has determined
that we have violated the National Labor Relations Act and
has ordered us to post this notice and to abide by its terms.
WE WILL NOT offer employees money to assault union or-
ganizers.
WE WILL NOT threaten to terminate employees if they talk
with a union organizer.
WE WILL NOT threaten employees by telling them that
other employees have been terminated for talking to a union
organizer.
WE WILL NOT offer employees raises if they would vote
no in the union election conducted by the National Labor Re-
lations Board.
WE WILL NOT interrogate employees about their voting
preferences so that employees who opposed the Union could
be encouraged to vote.
WE WILL NOT fail and refuse to rehire employees because
of their union activities.
WE WILL NOT in any like or related manner interfere with
our employees’ exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL offer immediate and full reemployment to em-
ployee Valentin Garcia to the position he would have held,
but for our wrongful refusal to rehire him on December 18,
1989.
WE WILL make employee Valentin Garcia whole, with in-
terest, for any and all losses he may have suffered as a result
of our failure to rehire him on December 18, 1989.
LA FAVORITA, INC.