Mento Food Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1999

330 N.L.R.B. 337 (N.L.R.B. 1999)

MENLO FOOD CORP. 337
Menlo Food Corporation and Hotel Employees Res-
taurant Employees Union Local 19. Cases 32–
CA–16384 and 32–RC–4364
December 14, 1999
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On January 8, 1999, Administrative Law Judge Clif-
ford H. Anderson issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs, and the Respondent 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 decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Menlo
Food Corporation, East Palo Alto, California, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post
at its East Palo Alto, California facility copies of the at-
tached notice marked “Appendix.”12 Copies of the notice,
on forms provided by the Regional Director for Region
32, in English and such other languages as the Regional
Director determines are necessary to fully communicate
with employees, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by other mate-
rial. In the event that, during the pendancy of these pro-
ceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since September 17, 1997.”

1 The Respondent and the General Counsel have excepted to some of
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 evidence convinces us that
the they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
2 No exceptions were filed to the judge’s dismissal of allegations that
the Respondent violated Sec. 8(a)(1) by threatening employees with
loss of their jobs for supporting the Union, by promising that employ-
ees who voted against the Union would receive wage increases, and by
impliedly threatening employees with loss of their jobs if they selected
the Union in the election.
3 We shall modify the judge’s recommended Order to conform to our
recent decision in Excel Container, 325 NLRB 17 (1997).
IT IS FURTHER ORDERED that the election held in Case
32–RC–4364 is set aside and that case is remanded to the
Regional Director for Region 32 to conduct a new elec-
tion when he deems the circumstance permit the free
choice of a bargaining representative.
[Direction of Second Election omitted from publica-
tion.]

George Velastegui, Esq., for the General Counsel.
Kathryn E. Sears, Esq. (Gibson, Dunn & Crutcher), of Palo
Alto, California, for the Respondent.

DECISION AND REPORT ON OBJECTIONS
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
the above-captioned cases in trial in Oakland and San Quentin,
California, in June, July, and August 1998. The matter arose as
follows.
I. THE UNFAIR LABOR PRACTICE CASE
On September 29, 1997, Hotel Employees Restaurant Em-
ployees Union Local 19 (the Charging Party, the Petitioner, or
the Union) filed a charge, docketed as Case 32–CA–16384,
with Region 32 of the National Labor Relations Board against
Menlo Food Corporation (the Respondent or the Employer)
amending that charge on February 9, 1998.
The Regional Director for Region 32 issued a complaint and
notice of hearing on the amended charge on February 27, 1998,
and an amended consolidated complaint and notice of hearing
on April 29, 1998. The Respondent filed timely answers to the
complaint and amended complaint.
The complaint as amended alleges and the answer denies that
the Respondent’s agents made various improper promises and
instructions to, threats to, interrogations of and surveilled em-
ployees in the period of September 1997 through January 1998,
in violation of Section 8(a)(1) of the National Labor Relations
Act (the Act). The complaint further alleges and the answer
denies that on or about September 19, 1997, the Respondent
terminated employees Victor Ruiz and Daniel Castañeda be-
cause of their union or other protected concerted activities in
violation of Section 8(a)(3) and (1) of the Act.
The complaint alleges and the answer denies that the Union
at all relevant times had the support of a majority of employees
in the Union, made a demand for recognition and bargaining of
the Respondent on or about September 17, 1997, which demand
was at all times thereafter refused by the Respondent. The
complaint alleges and the answer denies that, as a result of the
other alleged unfair labor practices, a new election would not
fairly test employees sentiments and that a bargaining order
should be directed against the Respondent effective on or be-
fore September 17, 1997. The complaint finally alleges and the
answer denies that the Respondent’s failure, on and after Sep-
tember 17, 1997, to recognize the Union upon its demand for
330 NLRB No. 45
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
recognition and the bargaining order sought violates Section
8(a)(5) and (1) of the Act.
II. THE REPRESENTATION CASE
On September 24, 1997, the Union filed a petition, docketed
as Case 32–RC–4364, seeking to represent the Employer’s
employees. Pursuant to a Stipulated Election Agreement ap-
proved by the Regional Director on October 21, 1997, an elec-
tion was conducted on November 12, 1997, in the following
unit (the unit):

All full time and regular-time food processing and production
employees employed by the Employer at its East Palo Alto,
California facility; excluding managerial and administrative
employees, sales personnel, office clerical employees, ship-
ping and receiving employees, truck drivers, all other em-
ployees, guards and supervisors as defined in the Act.

The tally of ballots shows that 19 votes were cast for the Union,
21 votes cast against the Union, and 3 ballots were challenged.
The challenged ballots were sufficient in number to affect the
results of the election. On February 26, 1998, the Regional
Director approved the parties’ stipulation on challenges which
recommended the challenge to Jorge Calderon, one of the three
challenged ballots, be sustained. In consequence the remaining
challenged ballots were no longer determinative of the results
of the election.
The Petitioner filed timely objections to the election. On
March 2, 1998, the Regional Director issued a Report on
Objections, order consolidating cases and notice of hearing.
The Report approved the withdrawal of certain objections and
found that Objections 2, 3, 6, and 7 raised substantial and
material issues of fact which could best be resolved through a
he

aring. The Report ordered that the hearing on objections be con-
solidated with the hearing directed on the complaint, as set
forth above for a common hearing and determination and, re-
quested that the designated judge prepare and serve upon the
parties a report containing resolutions of credibility, findings of
fact, and recommendations to the Board respecting the objec-
tions.
FINDINGS OF FACT
On the entire record,1 including helpful briefs from the Gen-
eral Counsel and the Respondent, I make the following findings
of fact.2
I. JURISDICTION
The Respondent is and at all times material has been a Cali-
fornia State corporation with an office and place of business in
East Palo Alto, California, where it has been engaged in the
business of manufacturing eggroll skins. In the course and
conduct of its business, the Respondent annually sells and ships
goods and or provides services valued in excess of $50,000
directly to customers located outside the State of California.
The complaint alleges, the answer admits, and, based on the

1 Substantial portions of the record testimony and exhibits were in
Spanish and were translated into English. Where it is relevant to an
understanding of the issues of the case, the facts of translation of par-
ticular evidence is noted. Generally, the nonsupervisory employees
spoke and were communicated with orally and in writing in Spanish.
2 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 otherwise noted, the findings here are based on the plead-
ings, the stipulations of counsel, or unchallenged credible evidence.
above commerce facts, I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
The Union is and has been at all times material a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent is engaged in the manufacture of eggroll
skins, i.e., the flour wrappers on the popular food item. The
process involves preparing, shaping, and cooking flour dough
on various equipment. In recent times some 40-odd production
employees have been engaged in the eggroll skin preparation
process.
Lee Mo is the Respondent’s owner and president;3 Stephen
Luk is the general manager. These two individuals speak Chi-
nese and English but speak only a little Spanish. The two pro-
duction supervisors at relevant times were Salvador Jimenez
and Jose Garcia. These two individuals speak both English and
Spanish but speak very little or no Chinese. All four of these
employees are undisputed supervisors and agents of the Re-
spondent. The unit employees at relevant times were Latino,
each of whom spoke Spanish but generally spoke little English
and essentially no Chinese.
The Union was recognized by the Respondent as representa-
tive of its employees in early 1994 and entered into a contract
with the Union effective by its terms from April 7, 1994,
through April 6, 1996, covering the following unit of employ-
ees:

All production and maintenance employees employed by the
Respondent at its plant at 175 Demeter Street, East Palo Alto,
California, excluding office and clerical employees, sales per-
sonnel, shipping and receiving employees, truck drivers,
guards and supervisors.

Union officials dealt with the Respondent’s management during
the contract on various matters. At the time of the contract’s
1996 expiration, recognition of the Union was withdrawn4 and
the Union ceased to represent the employees at least until the
disputed events at issue here.
The Union initiated an organizing campaign among the Re-
spondent’s employees a little over a year later and, in the 4-
month period from late May through early September 1997
obtained the signed authorization cards of some 34 production
employees.
On September 17, 1997, the Union faxed a letter to the Re-
spondent, which was received by it in the normal course, assert-
ing the Union represented “a substantial majority” of the Re-
spondent’s food process and production employees, that it was
prepared to demonstrate its majority, and was seeking negotia-
tions for a collective-bargaining agreement. On the same day,
Union Business Representative Enrique Fernandez went to the
Respondent’s facility and, there joined by a significant majority
of employees, who ceased work and chanted slogans of support
3 Lee Mo started the Respondent in 1975 as its sole employees. Mo
died in 1994.
4 There is no contention that the withdrawal was in violation of the
Act or that the General Counsel’s theory of a bargaining obligation
herein is predicated on a continuing recognition theory.
MENLO FOOD CORP. 339
for the Union as discussed in greater detail infra, demanded
recognition of the Respondent.
On September 24, 1997, the Union filed a representation pe-
tition with Region 32 docketed as Case 32–RC–4364. The
parties entered into a Stipulation Election Agreement approved
by the Regional Director on October 21, 1997, agreeing to hold
an election on November 22, 1997, in the following unit (the
unit):

All full time and regular part time food processing and pro-
duction employees employed by the Respondent at its East
Palo Alto, California facility, excluding managerial and ad-
ministrative employees, sales personnel, office clerical
employees, shipping and receiving employees, truck drivers,
all other employees, guards and supervisors as defined in the
Act.

Following an election campaign during which the Respondent
utilized the services of a consulting firm, the election was con-
ducted on November 12, 1997. As set forth supra, the tally of
election results indicated a defeat for the Union, but timely
objections to the election were filed by the Union.
B. Events
1. September 17, 1997
Substantial testimony was introduced respecting the specifics
of the demonstration at the Respondent’s facility on September
17, 1997. There is little doubt that many of the employees were
expecting the arrival of Union Business Agent Enrique Fernan-
dez and other union officials at the facility. When he arrived,
the bulk of the employees evidenced their support for the Union
by ceasing work, gathering together in the workplace, shouting
prounion slogans, joining with Fernandez as he moved through
the facility, talked to the Respondent’s agents, and attempted to
enter the Respondent’s administrative offices. It is also uncon-
troverted that the Respondent’s agents, Luk and Mos, were
distracted and discomforted by the process which was noisy
and chaotic, and who were also concerned and involved with
the effort necessary to insure that the possible damage to pro-
duction and product in preparation caused by the worker’s
abandoned equipment be minimized. There is no dispute that
the union officials were asked to leave and that, in time, the
police were called, arrived on scene, and finally the matter was
resolved and the employees returned to work.
Some dispute occurred respecting the extent to which new
employees Daniel Castañeda and Victor Ruiz participated, as
observed by the Respondent’s agents. Castañeda and Ruiz who
testified that they supported the Union—as did the other em-
ployeesby ceasing work, marching, and shouting. Mo and Luk
denied noticing whether either Castañeda and Ruiz were among
the employees who supported the Union during the demonstra-
tion or learning thereafter that this was so.
Alfredo Gutierrez, an employee of Respondent at the time in
question, testified that he did not participate in the demonstra-
tion on September 17, but rather was attempting to keep the
abandoned equipment operating as well as possible in the ab-
sence of the other employees. He testified that while so en-
gaged, and while Mo was attempting to get the employees back
in the plant, with the employees all around the area and while
he was within 5 or 6 feet of Mo, he heard her assert: “These
guys will only work a short time.”
Mo testified that, while she did not recall making such a
statement in Gutierrez’ presence that day, she did recall assert-
ing out loud—but to no one in particular—while observing the
demonstrators: “One of these guys only work for short time,” or
“Some of these guys maybe just work for a short period of
time.” She testified that the comment was related to her per-
ception that the new employees, who were supporting the Un-
ion by ceasing work and demonstrating, had no experience
working for the Respondent when the Union had earlier repre-
sented employees and hence could not reasonably have confi-
dence in the desirability of union representation at the Respon-
dent.
2. Events following September 17
Juan Pacheco, a current employee of the Respondent, testi-
fied5 that he observed a conversation between Stephen Luk and
another employee soon after the Wednesday, September 17,
1997 workstoppage which occurred outside the facility during a
break in which Luk said that “they were going to fire Daniel
[Castañeda] and Victor [Ruiz] because they went outside with
the Union. . . . Steve Luk said that Daniel and Victor should not
have done it because they were new employee . . . . And he also
said that they were going to fire them on Friday.” Luk denied
making the statements attributed to him and further asserted
that he had no role in these two individual’s discharges nor any
knowledge of their terminations prior to the day of their dis-
charges, Friday, September 19, 1997.
Alfredo Gutierrez testified that a week or 2 before the elec-
tion he had two conversations one-on-one with Stephen Luk.
In the first, Luk asked him if he had “signed for the union?”
and Gutierrez answered that he had rather “signed for the Com-
pany.” Later the same day and in the same location Luk asked
Gutierrez, in Gutierrez’ recollection: “How many people
would sign for the union” and Gutierrez answered he did not
know, to which Luk rejoined: “[W]hoever signed for the union
would have problems.” Luk testified he had no recollection of
this conversation.
Gutierrez further testified that on the day of the election,
November 22, 1997, Mo had a conversation with him and fel-
low employee Miguel Giardo in which she asked him to “check
how many people signed for the union” and he agreed. Mo
denied making the statements attributed to her.
3. The Respondent’s consultant’s meetings with employees
The Union filed its representation petition on September 24,
1997. The Respondent retained the services of a labor-
consulting firm utilizing one of its agents, Arturo Tovar, in the
period proceeding the November 12, 1997 election, to hold
meetings with small groups of employees. These meetings
were conducted in Spanish and generally involved four to six
employees with the particular employees in most groups chang-
ing for each meeting as production schedules allowed differing
groups of employees to be sent to particular meetings. In es-
sence participating employees attended three separate meetings
during the period in which the issues of union representation
and related matters were discussed.
Employee Miguel Vital Gomez testified that in the meetings
he attended with the same employees on each occasion Tovar
told the assembled employees that the Respondent would not
sign a contract and that if the Union was successful in repre-
senting the employees a strike would occur. He further recalled

5 As discussed in greater detail, infra, Pacheco’s testimony was
comprised both of recollection and adoption of earlier sworn state-
ments.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 340
Tovar asked the employees why they wanted a union. Em-
ployee Nicholas Martinez recalled in the single meeting he
attended that Tovar said: “[I]f the Union won the Owner would
not sign a new contract.” Martinez further recalled:

Well, [Tovar] said that if the Union was going to get in, if we
were going to sign for the Union, there was a chance that
there was going to be a strike. Well, that if we voted for the
Union she was going to close down and the ones that had
voted for the Union were going to be fired. And that she was
going to work with the people that wouldn’t have signed.
Then that she was going to get new people to replace workers.

Employee Benito Avila Gaspar recalled that Tovar said in
his meetings that there would be strikes if the Union won the
election. Employee Miguel Angel Gomez testified that Tovar
told the employees in his meeting that “the bosses were not
going to sign, under any circumstance, a contract with the Un-
ion.” He also testified that Tovar “was asking which ones were
the problems of the Company to see if he was going to be able
to do something in order to find a solution.”
Employee Ramon Quintero testified in some detail to the
first two meetings he attended with Tovar. In the first Quintero
testified:

First, [Tovar] introduced himself. He said he was a labor
counselor. I asked him for his name one more time and I
asked him for his card. He told me that he didn’t use cards.
And he said that he had been hired by the Company to talk
about the problem. I asked him what was the problem. He
told me that the problem was the Union. And he told me he
had been hired by the Company to talk about the disadvan-
tages of the Union. He said that if the Union came in there
might be a strike. And he said that if there was a strike that
we, the employees, might be out a certain door and the Com-
pany might, at the same time, be hiring employees through
another door and make them into permanent employees. And
we would have to get on a waiting list until there was a—an
open—a vacancy. He said that the strike might last months or
years. He said—he asked us how he would support ourselves
during that time. How would we pay rent if when one is on
strike one doesn’t have any rights—rights to unemployment
and disability and no other government benefits.

Quintero recalled that in his second meeting on or about Octo-
ber 29, 1997, with Tovar:

[Mr. Tovar] started talking about strike again, in different
ways. And he asked us why that union—if that union repre-
sented hotels and restaurants and they didn’t know anything
about manufacturing companies. I told him that it was perhaps
because it was the only one we knew.
He said, “Why don’t you talk to the owner to try to get
at the problem? Why use third persons if everything can
be taken care of there?” He said, “Vote no, against the
Union.” He thought that simply—by simply having the
threat of the union that would be enough to—for it to have
favorable changes for the employees.
And I asked him if this was a promise he was making
us. He said, “No.” I said, “But this is what you are imply-
ing.” He said, “Take it as you please.”

The Respondent called half a dozen employees who attended
meetings with Tovar. These employees, with varying degrees
of recollection, generally denied that Tovar had made the asser-
tions alleged in the complaint. Arturo Tovar testified that while
he had no separate recollection of each of the many meetings
held with employees, he utilized notes and outlines in the meet-
ings to insure he covered the points he desired to make with
employees. In essence, he testified that he explained to the
employees what was occurring or might occur and generally
presented the Respondent’s perspective that representation by
the Union was not desirable for employees and that employees,
being better off without union representation, should vote no in
the upcoming election. He testified that he did not make prom-
ises, threats, nor otherwise violate the Act. He particularly
denied asserting that the Respondent would not negotiate with
the Union or sign a contract or that the plant would close to
punish employees if they selected the Union.
4. Two pieces of the Respondent’s campaign literature
One of the Respondent’s handouts to employees distributed
on October 24, 1997 meetings asserts:

w

The union’s only real weapon to force its demands when

“If the union gets in,
ill there be a strike?”

An informed vote is a NO vote !

bargaining breaks down is to strike. Before the election you
should ask yourself if you would be willing to strike.

Once a strike is called, All employees are affected.
STRIKERS get no pay, no benefits, no unemployment
compensation, and they face the possibility of losing their jobs
while permanent replacements are working in their place.

Union workers who want to work can be fined and disci-
plined by the union.

Those who cross a picket line may face the possibility of
harassment or threats.

Will it happen here? We certainly hope it never does - but
frankly, we don’t know
X

MENLO FOOD CORP. 341
On November 5, 1997, the Respondent distributed a letter to
employees over the signature of Stephen Luk which asserts in
part:
Dear Menlo Food Employees:
A lot has been said by the union about what they can
do for you. They have made a lot of promises, but can
they deliver on what is really important to you? Can the
deliver higher wages or benefits? Can they deliver job se-
curity?
Let’s see what job security really is:
First, is obtaining a job from the employer. (The un-
ion does not provide jobs. Ask the union if they will guar-
antee a new job if you quit or lose your job.)
Second, job security is working for a healthy, growing
company, with assurance of steady work. (The Union
does not provide this either. All your wages and benefits,
equipment, tools, etc., that you see around you are paid for
by the company, not the union.)
In simple terms, job security is:
• Having a placed to work:
• Having the proper tools and equipment to work;
• Having no interruptions of work; and
• Getting paid every payday

How many of those thing[s] can the union deliver on?
None, especially not the last one. Ask them what security
they have for employees that are out on strike.
Union’s unreasonable demands, slowdowns, strikes,
and opposition to improved methods of production all hurt
a company’s ability to operate profitably. A sound and
profitable business will provide job security. Not empty
promises as the union has been telling you.
There can be no job “security” without a job
Attached is a “union guarantee”. Show it to the union
next time they visit you. Anytime you spend money on
something, you expect some sort of guarantee. The same
is true with the union—if they want to charge you monthly
dues, assessments and fines, they should give you a guar-
antee as to what you will receive in return for your money.
. . . Make them give you one! If they say “NO”, you
should say “NO” to the union.
5. The events respecting the disputed promise of a
wage increase
Nicholas Martinez testified that about 1 week before the No-
vember 12, 1997 election he along with two other employees,
brothers Juan Pacheco and Gustavo Pacheco, visited the home
of Supervisor Salvador Jimenez. He testified that in the pres-
ence of Juan and Gustavo Pacheco he had the following ex-
change with Jimenez:

Well, I was the one that started the talk, the conversa-
tion. Because at that time I was going to go to Mexico
when the elections were going to be, I think. I told Salva-
dor Jimenez that maybe I was going to go and join the Un-
ion. Maybe I was going to vote for Mrs. Lee Mo because
it was not convenient for me that the factory was going to
close down or there was going to be a strike because I had
to go to Mexico. . . .
And then he said, “We better get to work and convince
the flour people to vote for the owner, to vote for the lady.
And I’ll talk to the lady to see that you get a raise after the
elections.”

Martinez further testified that on the day of the election or the
day preceding he had an additional conversation with Jimenez
and “the counselor . . . the one who was going to do the coun-
seling of the Company,” in which Martinez told Jimenez
that “the flour people were ready, that they were going to vote
for the lady” and Jimenez responded that “he also had talked to
the lady and she said that if she won the election she was ready,
she was willing to . . . give us a raise if they won the election.”
Yet another conversation between Martinez and Jimenez oc-
curred about 2 days after the election in Martinez memory.
Martinez approached Jimenez and asked him if, and when, they
were going to get a raise and was told that “the lady” had to
wait 10 to 12 days for the Union to “go away.”
Juan Pacheco recalled that he was present with Nicholas
Martinez and Salvador Jimenez at Jimenez’ home as Martinez
testified, but recalled only that Jimenez told them that the elec-
tion would be won. His January 22, 1998 affidavit asserts:

I was present when Salvador Jimenez told us that we would
get a raise after gaining the voting process—after winning the
voting process from the Company. He said that [at] his
house—Salvador’s house—and he also stated at the factory—
From the factory there were—Salvador, Nicholas and I were
there. He said it several times.

Salvador Jimenez testified that on a weekend day sometime
before the election, while he and his brother were barbecuing in
his backyard, Nicholas Martinez, Juan Pacheco, and a third
individual he had not seen before or since came to visit. He
recalled Martinez initiated a conversation about the Company
and the Union asking various questions respecting what was
going to happen after the election, e.g., would the plant close if
the Union won the election, if the employees voted for the Em-
ployer would Mo raise salaries? Jimenez testified he answered
all these questions with the simple assertion that he did not
know.
Jimenez testified that Martinez then asked him whether or
not Mo would raise salaries if Martinez and the others got the
employees to vote against the Union. When Jimenez repeated
he did not know, he recalled Martinez asked: “[S]ay why don’t
you talk to Mrs. Mo and ask them to raise up the salary, and we
work for the company, and I said no, I can’t do that.” After
several essential repetitions of this exchange, Jimenez told Mar-
tinez he would not speak to Mo and that Martinez should go
talk to Mo himself, to which Martinez indicated that they could
not talk to her in Spanish and Jimenez should go with them at
least as a translator. Jimenez answered that he would do that
for them but that he would not do more, could make them no
promises, and that he had no authority to raise wages.
Jimenez testified further that although this agreement was
reached, he did not in fact ever talk to Mo about a salary in-
crease for employees either with or without Martinez and or
Juan Pacheco nor did he have any further discussions with ei-
ther Martinez or Pacheco or indeed any other employees about
the Union or the giving of wage increases before or after the
election.
6. The events surrounding the January 22, 1998 giving of
employee affidavits
Apparently a day or two before Thursday, January 22, 1998,
Miguel Gomez invited several employees to come to his home
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342
on January 22, 1998, to discuss the situation respecting the
union election campaign and meet with a Board agent. Nicholas
Martinez testified that on Wednesday, January 21, 1998, while
at work Mo, utilizing Supervisor Jose Garcia as an interpreter,
asked him if he was going to the union meeting at Miguel Go-
mez’ house and he said he was. Mo denied having this conver-
sation. Garcia did not testify respecting the issue.
Martinez testified that he also had two conversations with
Stephen Luk respecting the planned meeting on the next day—
first at midday when outside on a break and later at the end of
work as he was punching out. Luk first approached him and
asked if he was going to Miguel Gomez’ house. When Marti-
nez said he was, Luk said that he should attend the meeting but
report to Luk about it the next day. Martinez recalled that in
the second conversation, Luk again confirmed that Martinez
was going to the meeting at Gomez home and laughed and told
Martinez that they were very stupid people.
Alfredo Gutierrez testified that on January 22, 1998, Luk
also asked him at work if he was going to attend the Gomez
meeting and he told Luk that he was not going to do so. Luk, in
Gutierrez memory, then told him to attend the meeting and
report back to Luk on what was said. Gutierrez in fact attended
the meeting and met with and supplied an affidavit to a NLRB
agent. Luk testified he had no recollection of this conversation
with Gutierrez and, until the subsequent litigation of the case,
was not aware that Gutierrez had given an affidavit in the mat-
ter.
7. The discharge of Daniel Castañeda
Daniel Castañeda sought employment with the Respondent
through Supervisor Salvador Jimenez and was told the only job
then available was that of pouring flour from a larger container
into smaller buckets as part of the production process. This
work is indisputably physically difficult and wearing. Salvador
Jimenez testified to some reluctance in considering Castañeda
for this position because the task seemingly required a bulkier,
stronger individual. Castañeda however asserted he could do
the work and commenced employment with the Respondent on
August 13, 1997.
The difficulty of the task required that, at least initially, a
new flour pouring employee would work at that task for part of
the day and do lighter product cutting work for the remainder of
the workday. Castañeda started his employment with the Re-
spondent in this manner. Castañeda testified that he continued
his training in this fashion until he hurt his hand, which swelled
up and made it difficult and painful to pour the flour. He re-
ported his difficulty to Salvador Jimenez who told him that he
would be assigned to full time cutting without mentioning that
the transfer was permanent or temporary. Castañeda testified
that he continued cutting the product without being asked to
resume pouring flour until he was precipitously and without
warning terminated on September 19, 1998, by Supervisor Jose
Garcia who came to him at lunch and said: “[t]he Chinese
woman told me there was no more work for you.”
Castañeda was not specific respecting precise timing, but
placed his injury and the subsequent swelling of his hand com-
plaint to Jimenez, and transfer off the pouring job as occurring
rather closely in time to his discharge. He also testified that he
participated with other employees in evincing his support for
the Union on September 17, 1997, at the facility by joining with
the other demonstrators in their efforts that day.
Jose Garcia testified that he directed Castañeda in his work
without problem or incident until on or about September 15,
1997, when Castañeda told him: “I cannot do this job anymore
because it’s too heavy for me, very hard.” Garcia reported this
statement to Salvador Jimenez and told Garcia he would raise
the matter with Mo. The following day Jimenez told Garcia
that he was to tell Castañeda that he was needed to pour flour.
Garcia went to Castañeda, in Garcia’s recollection on or about
September 17, and told him he was needed for the flour-
pouring job. Castañeda responded that he did not want to do
that job because it was too hard. Garcia reported this exchange
to Jimenez and thereafter to Mo. Jimenez essentially corrobo-
rated the testimony of Garcia.
Mo told Garcia on Friday, September 19, 1997, to direct
Castañeda to do the flour pouring work and if he would not do
so to replace Castañeda with another who would do the job.
Garcia reported this conversation to Jimenez and thereafter
asked Castañeda to resume pouring flour which request
Castañeda refused. Garcia testified:

I told him, “Castañeda, Mr. Castañeda, on Friday [Sep-
tember 19, 1997], Mrs. Mo told me she doesn’t need you
anymore, no come back Monday, because we need one
person for that position.” At that time he told me, “I hurt
my hand.” I say, “What I can do? I already asked you
two times to do this job, and you didn’t tell me anything,
so what can I do now?” He said, “Okay, I don’t come
back on Monday.”

Garcia identified and the Respondent entered into evidence two
handwritten notes in Spanish as taken by him after conversa-
tions with Castañeda on September 17 and 19, 1997. The trans-
lations of those entries are consistent with the recitation of Gar-
cia’s conversations with Castañeda as set forth above.
Mo and Salvador Jimenez testified essentially consistent
with the version of events described by Garcia. Castañeda’s
employment ended that Friday and he has not been offered
reinstatement thereafter.
8. The discharge of Victor Ruiz
Victor Ruiz had been an employee of the Respondent in
1995. He returned to its employ on September 3, 1997. Em-
ployees are required to report to work during the interval of 5 to
5:30 a.m.
Ruiz testified that he participated in the work demonstration
on September 17, 1998, and had earlier signed a union authori-
zation card. He recalled that work started at 5 a.m. and em-
ployees were required to arrive within 30 minutes of the start of
work. On the day following the stoppage, Ruiz testified he was
late between 15 to 30 minutes. He recalled:

I arrived. I was going to punch in. Jose Garcia came up; he
told me not to punch in, that the Employer said that she was
going to hire someone else in my place. I asked him why, he
just shook his shoulders and hands and he was saying, “I
don’t know.”

Ruiz testified that although he recalled being told that he should
come to work on time by his supervisor, had not received prior
warnings for late arrival and was not told by Garcia or Mo, with
whom he spoke later that day, that he was fired for being late.
He has not been offered reinstatement to date.
Mo testified that she became aware of Victor Ruiz’ initial
late arrival to work in his second week of employment through
the report of either Jimenez or Garcia that he was not present
and by means of examining time records which indicated that
he had not punched in until around 9 a.m. on September 12—
MENLO FOOD CORP. 343
over 3 hours late. She testified when told by whichever super-
visor involved that the supervisor was to warn Ruiz that he had
to be timely in his attendance. She thereafter learned that Ruiz
was 2 hours late on a second occasion, this time early in the
week of September 14, 1998. Again she asked the relevant
supervisor to instruct Ruiz on the importance of timely atten-
dance. She testified that on Friday, September 19, 1997, she
learned that Ruiz was again late—at that time about an hour
late. Before he arrived and punched in, she testified: “We
made a decision that day that he should be replaced.”
The Respondent introduced payroll records indicating that
Ruiz commenced work on September 12 at 9:44 a.m. and on
September 18 at 10 a.m.
Jose Garcia testified that he was not aware that Ruiz had
been late on September 12 or 18 until Mo raised the matter with
him. He testified that Mo told him on September 19, 1997,
after the start of the working day, but before Ruiz arrived at the
facility that he was to be fired. Thereafter Garcia informed
Ruiz that he had been terminated.
C. The Specific Allegations of the Complaint6
1. Allegations of violations of Section 8(a)(1) of the Act
The complaint alleges in paragraph 6 that the Respondent’s
agents, Lee Mo, Stephen Luk, Salvador Jimenez, and Arturo
Tovar violated Section 8(a)(1) of the Act through various con-
duct. The Respondent denied that its agents had violated the
Act. These allegations require separate consideration and
analysis.
a. Stephen Luk—complaint paragraph 6(a)
(1) Paragraph 6(a)(1) of the complaint
Paragraph 6(a)(1) of the complaint alleges that Stephen Luk
on an unknown date in mid-September 1997 (but after Septem-
ber 17, 1997):

(A) Threatened an employee that Respondent would
fire employees who engaged in Union or other protected
concerted activities:
(B) Impliedly threaten an employee with discharge or
other adverse consequences by telling said employee that
employees should not have engaged in Union or other pro-
tected concerted activities because they were “new” em-
ployees.

As set forth in part above, the sole direct evidence offered to
support this allegation was the testimony—primarily the adop-
tion of prior affidavits—of employee Juan Pacheco. Portions
of his affidavits entered into the record directly support the
allegation. The General Counsel advances this evidence over
the denials of Luk. The Respondent argues the contrary.

6 The General Counsel, on brief at p. 6, moved for the first time to
amend the complaint to include an allegation that Mo, on September
17, 1997, during the work stoppage, threatened employees with dis-
charge arguing that the threat had been fully litigated. At the com-
mencement of the proceeding counsel for the General Counsel, having
been asked if he had any amendments to the complaint to propose,
indicated he did not. Subsequently, I informed counsel I greatly pre-
ferred that the complaint be amended earlier rather than later respecting
unpled violations. Given my determination, as discussed, infra, at fn.
10 and the text referenced therein, that the conduct would not support a
finding of a violation of the Act, even if a complaint allegation had
been included in the issuing complaint, I find it unnecessary to deter-
mine if the complaint amendment should be granted.
Juan Pacheco speaks very little English and testified in Span-
ish. During the investigation of the charges he had given two
affidavits to a Board agent. He testified to observing, as op-
posed to participating in a conversation between Stephen Luk
and another individual who may or may not have been an eth-
nic Chinese or, as the Respondent posits a nonethnic Chinese
referred to as “the Chinese Man.” While it is clear from
Pacheco’s testimony that the conversation he was describing
included spoken words that new employees Castaneda and Ruiz
would be fired for their support of the Union, it was not at all
clear whether the statements were made by Luk as the speaker
of the words or, whether the words were spoken to him by the
other party to the conversation.
Pacheco’s testimony was hesitant, his recitation somewhat
inconsistent and he indicated little present memory of the
events. The General Counsel relied heavily on the affidavits
given by the witness. While Pacheco asked to withdraw his
affidavits, I find this was because of his great reluctance to
participate in the proceeding in any manner, a reluctance that
required special efforts to compel his attendance, as opposed to
a specific recantation of the contents of the affidavits. His affi-
davits recite far more directly than his oral testimony that it was
Luk who a few days after the work stoppage asserted that
Castañeda and Ruiz would be fired on the coming Friday be-
cause they were new employees without a right to support the
Union. Since the workstoppage occurred on Wednesday, Sep-
tember 17, 1997, and the terminations occurred on Friday, Sep-
tember 1997, this conversation seemingly would have occurred
on Thursday, September 18, 1997.
Daniel Castañeda testified that Juan Pacheco told him on or
about the day after the recognition events of September 17,
1997, that “the Chinese man told him that I would be fired
because I hadn’t been working there enough time to be able to
join the Union.” Miguel Vital Gomez gave similar testimony.
Pacheco also testified that other employees were also discuss-
ing this situation although other witnesses denied that this was
so.
Considering the evidence on the matter in its entirety, includ-
ing the affidavits, the testimony of Pacheco and Luk and the
evidence of prior consistent statements by Pacheco, in light of
the burden the General Counsel bears, I do not find the record
will sustain the General Counsel’s complaint allegation. The
evidence from and attributed to Pacheco is muddled. Luk’s
denials were direct and convincing. As the Respondent argues
the probabilities are not compelling. Since in Pacheco’s recol-
lection, the other employees were talking about these two indi-
viduals being terminated, it is not improbable that comments he
heard made by others could be attributed to Luk and his reports
to other employees stimulate further employee comment.
The resolution as to this aspect of the case is not a traditional
comparison of the credibility of two witnesses whose testimony
is in direct conflict so much as a determination that the General
Counsel’s evidence is fatally weakened by its ambiguity and
lack of clarity as well as Pacheco’s confusion and reluctance.
Given all the above, I find there is insufficient credible evi-
dence to sustain the General Counsel’s complaint allegation
and it will be dismissed.
(2) Paragraph 6(a)(2) of the complaint
Paragraph 6(a)(2) of the complaint alleges that Luk on an
unknown date in early November 1997:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 344
(A) Interrogated an employee concerning that em-
ployee’s Union activities.
(B) Threatened an employee that there would be un-
specified reprisals taken against employees who vote for
Union representation.

As set forth above, Alfredo Gutierrez testified to two conver-
sations with Stephen Luk in which Luk asked about Gutierrez’
and other employees support for the Union and suggested union
supporting employees would have “problems.” Luk denied
ever making such statements or indeed even having a similar
conversation with Gutierrez.
Gutierrez was not a union supporter, did not participate in
the work stoppage, and was a careful and thoughtful witness.
His demeanor created in me the strong impression that he was
testifying honestly and limiting his testimony to the matters he
recalled. He was a very impressive witness and instilled in me
great confidence in his veracity. Luk’s numerous recitations
that he had no recall of the events described by and attributions
made by Gutierrez were simply far less persuasive. Gutierrez
had no obvious motive to simply lie and fabricate these events.
It is far more probable that Luk even if only subconsciously
might find it far more preferable to fail to recall events that
would embarrass him and his employer.
One argument made by the Respondent bears separate con-
sideration. The Respondent notes that while the Respondent’s
first level supervision is bilingual speaking fluent Spanish and
English, unit employees speak essentially only Spanish and
management, i.e., Luk and Mo essentially do not speak Span-
ish. This circumstance, argues counsel for the Respondent on
brief, makes it very unlikely that conversations between man-
agement and unit employees could take place absent intermedi-
ate translation and, for that reason, the testimony by employees
respecting such conversations should be discredited.
The Respondent’s argument is relevant, but must be judged
in the circumstances of each conversation. Gutierrez testified
that his conversations with Luk were in both Spanish and Eng-
lish and that he understood Luk sufficiently. Since I found Gu-
tierrez to be an honest and forthright witness, I also credit this
assertion. Further, it must be recognized that intelligent
individuals—and Luk and Gutierrez each seemed to qualify on
this record—who work in a bilingual setting such as the Re-
spondent’s workplace dealing with others who speak another
language for a period of years are able to communicate, even if
somewhat inefficiently, by mixing language, gesture, and any
other mutually understandable aid to understanding.
Based on demeanor and the record as a whole, I credit Gu-
tierrez over Luk where their versions of events differ. This
being so, there is no question that Luk wrongfully inquired of
Gutierrez as to the union sympathies of employees and sug-
gested union supports would have problems. These statements
are traditional violations of Section 8(a)(1) of the Act, and I so
find. Accordingly, I sustain this allegation of the complaint.
(3) Paragraph 6(a)(3) of the complaint
Paragraph 6(a)(3) of the complaint alleges that Luk on or
about November 5, 1997, by letter to employees, threatened
employees with loss of their jobs because of their support for
the Union.
This allegation is based on the letter quoted, supra, distrib-
uted to employees over Luk’s signature as part of the Respon-
dent’s election campaign. The General Counsel on brief em-
phasizes the bold letter assertion in the document: “There can
be no job security without a job.” The Respondent, citing Ac-
tion Mining, 318 NLRB 652 (1995), argues the letter is benign
and permissible in its entirety and does not rise to the level of a
violation of the Act.
The entire letter explains the Respondent’s meaning and us-
age of the phrase “job security” in the context of the election
campaign document and does not improperly suggest that em-
ployee jobs are at risk because of their possible selection of the
Union to represent them. I find the General Counsel has not
sustained his burden respecting this complaint allegation and it
shall be dismissed.
(4) Paragraph 6(a)(4) of the complaint
Paragraph 6(a)(4) of the complaint alleges that Luk on or
about January 22, 1998, interrogated employees concerning
their union activities and instructed employees to engage in
surveillance of the union activities of other employees.
As noted supra, Nicholas Martinez testified to two conversa-
tions with Stephen Luk in which Luk asked about the employee
meeting scheduled on January 22, 1998, and instructed Marti-
nez to attend and report back. Alfredo Gutierrez testified to
similar independent conversations with Luk. Luk denied all the
attributions.
As noted supra, I was very impressed by Gutierrez as a wit-
ness and specifically credited him over Luk respecting the
events alleged to violate the Act in complaint paragraph
6(a)(2). I do so here on the same basis. Martinez’ testimony of
a similar situation, corroborated in its pattern and timing by the
credited testimony of Gutierrez, is also credited over Luk’s
denials.7 Luk’s conduct in asking about the employee’s atten-
dance at an employee union meeting and in seeking reports on
the details of the meeting are classic interrogation and surveil-
lance violations of Section 8(a)(1) of the Act. I sustain this
allegation of the complaint.
b. Arturo Tovar—complaint paragraph 6(b)
Complaint paragraph 6(b), in a dozen subparagraphs, alleges
that Arturo Tovar in meetings with employees during the period
preceding the election made various statements which violate
Section 8(a)(1) of the Act. Arturo Tovar was retained by the
Respondent to conduct small group employee meetings during
the preelection period at the facility. There is no question he
held meetings with employees from October into early Novem-
ber 1997.
As described briefly above, substantial testimony was re-
ceived from many witnesses respecting various meetings. The
General Counsel’s witnesses generally testified to alleged im-
proper statements made by Tovar in these meetings while the
Respondent’s witnesses testified that Tovar did not make im-
proper statements at the meetings that they attended. The Gen-
eral Counsel’s witnesses in some cases also testified that Tovar
did not make improper statements attributed to him by other
witnesses. Tovar testified that he simply did not make any of
the wrongful statements attributed to him. Although he could
not distinguish individual meetings in his mind’s eye, he testi-
fied that he followed a general outline of material he wanted to
cover at each meeting and—as a professional trained in labor
law and the restrictions and limits imposed on an employer’s
representative under the Act—did not violate the Act.

7 Given Luk’s parallel statements to Martinez and Gutierrez, Luk’s
statements to Martinez do not expand the remedy directed herein.
MENLO FOOD CORP. 345
The General Counsel argues that while Tovar may not have
made improper statements at each and every meeting, he did so
at some meetings and the witnesses who claimed he did not
simply did not attend the meetings in question. The Respon-
dent to the contrary notes that even the General Counsel’s wit-
nesses impeach other General Counsel witnesses by recalling
that Tovar did not make the statements attributed to him.
I found Tovar a credible witness with a sound demeanor. I
do not believe he made many of the cruder statements attrib-
uted to him. Thus, I do not credit the witnesses whose testi-
mony is set forth above, who suggested Tovar told the employ-
ees that the Respondent would not sign a contract, would close
the facility, would fire union supporting employees and that a
strike of great length would occur if the employees selected the
Union. I find rather that the employees, who were not well
grounded in the intricacies and subtleties of labor law and
Board standards, misconstrued Tovar’s permissible statements
and, further, simply misrecalled what was said. The simple
reality of NLRB practices, procedures, and decisional law is
such that nuances and fine distinctions, for example, between
the permanent replacement of employees engaged in an eco-
nomic strike and replacing workers generally, is not easily or
quickly understood by laity ungrounded in our esoteric disci-
pline.
Similar dangers of misconstruction and misapprehension oc-
cur in other substantive areas such as the employer’s obligation
to bargain but lack of an obligation to sign a particular contract
or an employer’s assertions that, if objective conditions warrant
as a result of increased labor expense, there may be a risk of
business closure. Indeed it may be fairly anticipated that a
skilled employer-labor representative speaking to employees in
support of the employer’s position in a union election campaign
would attempt to sway employees by going to the limits of
what may be properly asserted. Since individuals generally
recall what they have made sense of, and in these settings mis-
understandings are rife, I find that the employees, whosoever
honest in their testimony, simply did not recall or repeat in
court the actual words used by Tovar. Given Tovar’s denials
and my doubts respecting the testimony of the others, I credit
Tovar. I shall therefore dismiss the various subparts of com-
plaint paragraph 6(b) save as further discussed below.
Employee Ramon Quintero, as noted above, testified with
particular specificity respecting Tovar’s remarks in the two
meetings he attended. I was very impressed with the clarity his
memory and his seeming willingness to testify to only what he
recalled was said without apparent confusion or embellishment.
Quintero’s demeanor was very sound. I credit his testimony
respecting what was said by Tovar in the two meetings he at-
tended. I do not find that Tovar’s testimony is directly contrary
to Quintero but were it to differ, I would credit Quintero over
Tovar for Quintero’s testimony was a specific recollection of a
specific meeting whereas Tovar’s recitation was rather a gen-
eral survey of the entire course of meetings.
Quintero recalled that in the second employer held campaign
meeting he attended on October 29, 1997:

[Mr. Tovar] started talking about strike again, in dif-
ferent ways. And he asked us why that union—if that un-
ion represented hotels and restaurants and they didn’t
know anything about manufacturing companies. I told him
that it was perhaps because it was the only one we knew.
Tovar said, “Why don’t you talk to the owner to try to
get at the problem? Why use third persons if everything
can be taken care of there?” He said, “Vote no, against the
Union.” He thought that simply—by simply having the
threat of the union that would be enough to—for it to have
favorable changes for the employees.
And I asked him if this was a promise he was making
us. He said, “No.” I said, “But this is what you are imply-
ing.” He said, “Take it as you please.”

Complaint subparagraph 6(b)(2)(A)(B) specifically alleges
that the Respondent on October 29, 1997, during employee
meetings through Tovar:

(A) Told employees that they did not have to vote for
the Union during an up-coming NLRB election because
the mere threat of unionization would cause Respondent to
make favorable changes in their working conditions;
(B) Instructed employees to abandon their support for
the Union and to talk to Respondent about their problems
because Respondent would make favorable changes in
their working conditions;
(C) Interrogated employees about their Union sympa-
thy.

Tovar’s question to employees as to why the particular un-
ion, i.e., a hotel and restaurant local union, is clearly an indirect
interrogation about the employees’ union activities, if not in-
tended simply as a rhetorical predicate to a campaign speech.
The fact that an employee answered the question seemingly
suggests that the question was either intended to or was fairly
taken by the listening employees to have been intended to be
answered by those employees. In the setting of an employee
meeting held at the Employer’s initiative for the purpose of
delivering the Employer’s election positions to employees, and
without any ameliorating circumstances—which are absent on
this record—Tovar’s question is an interrogation which inevi-
tably chills employees’ Section 7 rights to support the Union
without divulging to the employer any information respecting
that support. I find that the statement violates Section 8(a)(1) of
the Act and I sustain complaint subparagraph 6(b)(2)(C).
Turning to the other two subsection of complaint subpara-
graph 6(b)(2), the Board in Embassy Suites Resort, 309 NLRB
1313 (1992), held at 1316:

It is well established that when an employer, as here, institutes
a new practice of soliciting employee grievances during a un-
ion organizational campaign, “there is a compelling inference
that he is implicitly promising to correct those inequities he
discovers as a result of his inquiries and likewise urging on his
employees that the combined inquiry and correction will
make union representation unnecessary.”14
_________________________
14 Reliance Electric Co., 191 NLRB 44, 46 (1971).

I find that the remarks of Tovar respecting problem resolu-
tion in Quintero’s credited testimony meet the Board’s quoted
standard for a violation of Section 8(a)(1) of the Act. There is
no evidence of a history of grievance solicitation in employee
meetings on this record, rather the implication, indeed the es-
sentially acknowledged implication, of Tovar’s remarks to
employees, was that the employees, now having threatened to
bring in a union, had gotten the employer’s attention and they
should now report their “problems” to the Respondent for “fa-
vorable changes.” I find these statements violate Section
8(a)(1) of the Act as alleged and I therefore sustain complaint
paragraph 6(b)(2)(B).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346
c. Salvador Jimenez—complaint paragraph 6(c)
Complaint paragraph 6(c) in two subparts alleges that Salva-
dor Jimenez:

(1) On two separate occasions in late October/early
November and mid-November 1997, promised employees
that if they convinced other employees to vote against the
Union, they would receive wage increases and/or higher
wage increases than would be received by employees who
supported the Union, and,
(2) In late November 1997, reaffirmed to an employee
that Respondent would grant wage increases to employees
who voted against the Union.

The allegations respecting Salvador Jimenez rely on the evi-
dence of Nicholas Martinez and Salvador Pacheco, which is
denied or substantially recast by Jimenez. There is agreement
that Salvador Pacheco, Martinez, and another came to Jimenez’
home where Martinez had a conversation with Jimenez respect-
ing the upcoming union election and the likelihood of what
would happen thereafter. Martinez and Pacheco’s generally
corroborative versions of the conversation suggests that when
Pacheco suggested the employees could support the Respon-
dent in the election, Jimenez said that, if they could “convince
the flour people to vote for the lady,” Jimenez would “talk to
the lady to see that you get a raise after the elections.”
Jimenez’ version of the conversation attributes to Martinez
the initiation of the question “whether or not Mrs. Mo would
raise salaries if Martinez and the others got the employees to
vote against the Union.” In Jimenez recollection, he simply
said he did not know and directed the employees directly to
Mo. Martinez then asked if Jimenez would speak to Mo for
them in English and, finally, Jimenez agreed to act as inter-
preter for them but would not do more and could make no
promises.
A second difference in these witnesses’ testimony addresses
what happened in consequence of this meeting. Jimenez testi-
fied that although he had agreed to act as interpreter for Marti-
nez, in fact no meeting took place between Martinez and Mo or
any other agents of the Respondent. He testified that he did not
discuss the matter with Mo or other agents of the Respondent
and the matter simply ended without further ado. Mo testified
that she never discussed an employee raise with Jimenez.
Martinez to the contrary testified he had two more conversa-
tions with Jimenez. The first occurred just before the election
in the presence of “the counselor . . . the one who was going to
do the counseling of the Company.”8 In that conversation Mar-
tinez told Jimenez that the “flour people” were ready to vote for
the lady and Jimenez responded that he had talked to Mo and
that, if the employer won the election she was ready and willing
to give employees a raise. The second conversation between
Jimenez and Martinez alone a few days after the election which
resulted in an apparent defeat for the Union. In that conversa-
tion Martinez recalled asking Jimenez if, and when, the em-
ployees were to receive their raise. Jimenez responded, in Mar-
tinez’ recollection, that the “lady” had to wait 10 to 12 days for
the Union to go away.

8 The General Counsel argues that this testimony establishes that
Tovar was the third party to the conversation and, since he did not
address it in his testimony, an adverse inference should be drawn. I do
not find the evidence sufficiently clear to draw such an inference.
The General Counsel argues that Martinez testimony, sup-
ported by Pacheco’s affidavit should be credited. Thus the
General Counsel seeks a finding that the Respondent seized on
the offer of Martinez to encourage opposition to the Union in
exchange for a raise and surreptitiously promised the raise in
exchange for the employees votes only to find it inappropriate
to grant the promised increases in the event. Such a sequence
of events would clearly be a violation of Section 8(a)(1) of the
Act.
The Respondent argues to the contrary however noting that
Jimenez had received training in what he could and could not
do or say during the election campaign and would have cer-
tainly known that it was improper to promise a wage increase
for employee opposition to the Union. Indeed, as the Respon-
dent notes, other employees testified that Jimenez took a benign
role in the campaign declining to advise employees beyond
urging them to reach there own decision on the matter.
The issues as to these disputed events are far closer that ei-
ther side concedes in its argument. Considering the conflicts in
light of the probabilities of events and the demeanor of the
witnesses, as well as the credibility resolutions and unfair labor
practice findings made elsewhere in this decision, the record as
a whole and, importantly on this question, the burden the Gen-
eral Counsel bears respecting the complaint allegation, I find
there is insufficient credible evidence to sustain these complaint
allegations. As discussed above, Pacheco’s affidavit and testi-
mony under all the circumstances are not as persuasive in cor-
roborating portions of Martinez testimony as they might other-
wise be. Martinez’ version of these events reveals a certain
expediency regarding the issue of union representation which
detracts to a degree from the persuasiveness of his testimony.
More simply put, I credit Jimenez testimony over that of Marti-
nez and Pacheco and find that the Respondent neither sought of
nor agreed to pay Martinez or Pacheco in the form of wage
increases for the organization of employee opposition to the
Union. Accordingly, I shall dismiss the above referenced com-
plaint allegations.
d. Lee Mo
Complaint paragraph 6(d) alleges in two subparts that Lee
Mo:

(1) On an unknown date in early November 1997, di-
rected an employee to compile a list of employees and to
indicate on said list whether the listed employees sup-
ported the Union,
(2) On or about January 21, 1998, interrogated em-
ployees about their Union activities.

The complaint subparagraph 6(d)(1) allegation relies onAl-
fredo Gutierrez, who testified, as set forth in greater detail su-
pra, that Mo asked him to “check how many people signed for
the union.” As discussed in my resolutions of the testimonial
conflicts respecting complaint subparagraph 6(a)(2) supra, I
was very favorably impressed with the testimony of Gutierrez.
Mo denied making the statements attributed to her. Mo fur-
ther testified that she speaks little Spanish. As noted, supra, the
Respondent argues this fact makes the likelihood of such a
conversation very small and generally undermines the testi-
mony of Gutierrez. However, as noted supra, I have credited
Gutierrez that he speaks sufficient English to have understood
the statements made to him. Further, Gutierrez was clearly able
to understand and recall Mo’s statement during the work dis-
MENLO FOOD CORP. 347
ruption on September 17, 1997, that “[T]hese guys only work
for short time,” which statement Mo essentially agreed she
made albeit in a somewhat different context then that suggested
by Gutierrez.
Considering the demeanor of the conflicting witnesses and
the record as a whole, I credit Gutierrez over Mo respecting
these disputed vents. Simply put I found Gutierrez demeanor
superior to that of Mo. I also find it far more probable that Mo
found it more convenient to fail to recall a potentially embar-
rassing event than Gutierrez would have fabricated such an
event. I find therefore that Mo did in fact ask Gutierrez to
“check how many people signed for the union.” This is again a
classic violation of Section 8(a)(1) of the Act and I so find.
The allegation of the complaint is sustained.
Complaint subparagraph 6(d)(2) addresses the contention of
Nicholas Martinez that Mo asked him on January 21, 1998, if
he was going to the meeting at Miguel Gomez’ home on the
following day. Mo denied this conversation. I have credited,
above, Martinez’ testimony that Luk also asked Martinez to
attend and report on this meeting in part because the action by
Luk was essentially identical to the credited testimony of Gu-
tierrez that Luk made the same request of him. Martinez was
not nearly so credible in his testimony as Gutierrez and is not
on this record superior in demeanor to Mo. However in light
of the credited evidence of parallel conduct by Luk and my
earlier discrediting of the denials of Mo respecting the election
day events with Gutierrez, discussed immediately above, I
credit Martinez over Mo as to these events. I find the General
Counsel has met his burden respecting subparagraph 6(d)(2) of
the complaint.
e. Complaint subparagraph 7(e)
Complaint subparagraph 7(e) alleges:

On or about October 24, 1997, through a leaflet distributed to
employees, impliedly threatened employees with loss of their
jobs if they select the Union to be their collective bargaining
representative in the upcoming NLRB election.

The complaint subparagraph challenges the October 24,
1997 leaflet distributed to employees, quoted in full, above. In
essence the leaflet is an ad horrendum campaign piece directed
to the possibility of a strike, if the Union represents the Re-
spondent’s employees and the dismal situation this situation
would present for strikers. While the General Counsel’s analy-
sis and argument respecting the document is thin and without
citation of authority, in essence the General Counsel argues on
brief that the leaflet “does not explain that economic and unfair
labor practice strikers have reinstatement rights.” The Respon-
dent argues the leaflet does not, standing alone, violate the Act
and, in all events, was part of a broader explanation by Arturo
Tovar of the intricacies of the Act and must be judged as sim-
ply a part of a benign larger whole.
The leaflet identifies the strike it is describing as “[t]he un-
ion’s only real weapon to force its demands when bargaining
breaks down,” i.e., an economic strike not an unfair labor prac-
tice strike. The leaflet says that strikers in support of such a
strike: “face the possibility of losing their jobs while permanent
replacements are working in their place.” The assertion, while
not perhaps a classic distillation of the law by Judge Learned
Hand, is close enough to serve as an explanation of the rights of
economic strikers.9 The leaflet in my view is not a misrepre-
sentation of the law of the Act nor is its use as occurred herein
a violation of it. I shall dismiss this paragraph of the complaint.
2. Allegations of violations of Section 8(a)(3) and (1) of
the Act
The complaint alleges at paragraph 7 that on or about Sep-
tember 19, 1997, the Respondent discharged two employees,
Victor Ruiz and Daniel Castañeda, because of their union or
other protected concerted activities in violation of Section
8(a)(3) and (1) of the Act.
The Board in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), established a test for approaching discrimination allega-
tions which was restated in Manno Electric, 321 NLRB 278,
280 fn. 12 (1996):

Under [the Wright Line] test, the Board has always first re-
quired the General Counsel to persuade that antiunion senti-
ment was a substantial or motivating factor in the challenged
employer decision. The burden of persuasion then shifts to
the employer to prove its affirmative defense that it would
have taken the same action even if the employees had not en-
gaged in protected activity. Office of Workers Compensation
Programs v. Greenwich Collieries, [114 S.Ct. 2551, 2557–
2558 (1994).]

It is appropriate to consider the discharges utilizing that analy-
sis. The arguments of the parties common to the two alleged
discriminatees will be initially discussed and then each individ-
ual will have his particular circumstances considered.
a. The General Counsel’s Wright Line burden to persuade that
antiunion sentiment was a substantial or motivating factor in
the Respondent’s discharge decision
The General Counsel’s theory may be briefly set forth as fol-
lows. First, the Respondent and Mo in particular harbored
animus against the Union arising out of the former period dur-
ing which the Union represented the Respondent’s employees.
Indeed the General Counsel introduced evidence that Mo soon
after her husband’s death in 1994 made the statement that she
felt the Union and the difficulties it imposed on the Respondent
contributed to her husband’s death. While Mo testified that at
that unfortunate time in her life she was not clearheaded and
blamed essentially everyone including herself for her husband’s
death, I find the General Counsel has established the Respon-
dent’s animus against the Union and union representation of its
employees.
Second, the General Counsel argues that the Respondent,
Luk, and Mo in particular, well knew of the union support of
employees Victor Ruiz and Daniel Castañeda by virtue of their
open participation with other union supporting employees in
the work disruption in support of the Union’s demand for rec-
ognition on September 17, 1998. The Respondent challenges
this assertion first by relying on the testimony of Luk and Mo

9 In Marquez v. Screen Actors Guild, Inc., 119 S.Ct. 292 (1998), in a
case involving the use of Board language in lieu of a broader explana-
tion of the implications of that language, Justice O’Conner writing for
a unanimous Court held:
Petitioner’ s argument that the failure to explain all the intri-
cacies of a term of art in a contract is bad faith has no logical
stopping point; that argument would require that all the intricacies
of every term used in a contract be spelled out.
The force of that argument seems to apply with equal relevance here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348
that they did not associate these two with union support on
September 17 and, by making the logical argument that in the
confusion of the moment and the large number of employees
participating in the dispute, and given the duties and responsi-
bilities of Mo and Luk on the occasion, there would have been
little likelihood either would have been able to identify particu-
lar individuals who were supporting the union during the event
that day.
The General Counsel buttresses his argument with the testi-
mony of Gutierrez, set forth above in greater detail, that Mo
while working to keep the equipment working in the middle of
the disruption stated: “These guys will only work a short time.”
Mo recalled her comment as rather: “one of these guys only
work for short time,” or “some of these guys maybe just work
for a short period of time.” She explained that the comment
was made to no one in particular, but was rather a simple talk-
ing-to-oneself expression of incredulity that the workers who
had been employed by the Respondent for insufficient time to
have worked when the Union earlier represented the Respon-
dent’s employees and hence could have no experience with
representation by the Union were supporting the Union with
such enthusiasm.
The General Counsel argues that Mo’s statement is a bald
threat and prediction announcing exactly what then took place.
Thus, “these guys,” i.e., the two alleged discriminatees, “would
only work for short time,” i.e., were fired 2 days later, because
of their support for the Union’s demand for recognition on
September 17, 1997. The Respondent argues that the verbal
aside was simply a benign speculation free from malice and
irrelevant to the allegations at issue. I credit Mo’s explanation
and find that the statement was not one of an intention to termi-
nate any employees and further was not intended to be over-
heard by employees.10 Under either version of what Mo said
aloud and irrespective of her motive for making the statement,
it clearly supports the General Counsel’s theory that Mo was
aware that at least some of her newer employees were support-
ing the Union.
This theory is further sustained by the testimony, which I
credit, of employee Guadalupe Meza called by the Respondent
who testified on cross-examination that he heard Mo asking an
Asian employee which employees had joined the demonstration
and which had not stopped working. Mo’s denials of the ac-
tions attributed to her in this testimony are discredited. Meza’s
testimony was clear and direct and his demeanor superior to
Mo respecting this aspect of her testimony.
The General Counsel advances the timing of the September
19, 1997 discharges that fell hard after the Union’s workplace
demonstration on September 17, 2 days before. The record is
devoid of evidence supporting employer knowledge of em-
ployee union activities before September 17, on which date the
Union’s demand for recognition and worker demonstration of
support without doubt made an impression on the Respondent’s
agents. Thus, the General Counsel contends that, faced with
the Union’s demand for recognition and the apparent support of
a substantial number of its employees, the Respondent under-
took “immediate and coercive steps to stifle the union organiz-
ing campaign” (G.C. Br. at 33). The Respondent did so, the
General Counsel argues, by selecting new and therefore the
most expendable of the employees who demonstrated on behalf

10 Were the statement to have been alleged in the complaint as a vio-
lation of Sec. 8(a)(1) of the Act, I would dismiss the allegation.
of the Union and discharging them in a manner calculated to
have the biggest impact on employees.
Given all these factors11 supporting his case, the counsel for
General Counsel argues that he has met the General Counsel’s
burden to persuade that antiunion sentiment was a substantial or
motivating factor in the Respondent’s discharge decision. I
agree and find that the evidence advanced by the General
Counsel above, either not in essential dispute or credited,
above, sustains the initial Wright Line test described in Manno
Electric as quoted above. I find, therefore, consistent with that
analytical scheme that the burden of persuasion shifts to the
Respondent to prove its affirmative defense that it would have
taken the same actions against employees Victor Ruiz and
Daniel Castañeda even if the employees had not engaged in
union activity.
b. The Respondent’s affirmative defenses
The Respondent’s defenses at this stage of the analysis are
best considered on an employee by employee basis.
(1) Victor Ruiz
Victor Ruiz had been an employee of the Respondent’s in
1995 and returned to its employ in early September 1997. The
Respondent introduced documentary and testimonial evidence
that Ruiz was late to work on September 12, 18, and 19. As set
forth in greater detail, infra, the Respondent’s witnesses tell the
tale of a relatively new employee repeatedly late who was dis-
charged in consequence.
The Respondent argues further that other employees who
started work in August and September 1997 were not termi-
nated during the election campaign and that in August and Sep-
tember 1997 three other employees—not counting Castañeda,
were terminated. Thus, neither was it true that the Respondent
terminated all or even many new employees or that it was un-
usual to terminate employees in the period.
The General Counsel—in addition to the arguments dis-
cussed in the initial stage of this analysis, above, attacks the
Respondent’s evidence in several ways. First, counsel for the
General Counsel points to various inconsistencies in the testi-
mony of supervisor Jose Garcia and Mo respecting the details
of the events and attacks the documentary evidence offered by
the Respondent as “doctored” or “fabricated.” Second, the
General Counsel argues that Ruiz was never given a formal
warning or other progressive discipline short of discharge re-
garding his lateness.
I have considered the arguments of the parties on the Ruiz
discharge in their entirety in light of the demeanor of the wit-
nesses and the record as a whole with the burden of persuasion
at this stage of the analysis explicitly on the Respondent. I find
that the Respondent has met that burden. Thus, I find the Re-
spondent has established that it would have discharged Ruiz
even had he not participated in the workplace demonstration on
September 17, 1997.
I reach this conclusion because, while I have carefully con-
sidered the General Counsel’s arguments as advanced at trial
11 I have omitted the arguments advanced by the General Counsel
based on statements attributed to the Respondent’s agents by employee
witnesses which testimony was discredited by me and which state-
ments were found not to have occurred. For example, the discredited
testimony of Pacheco that Luk said on September 17 that Castañeda
and Ruiz should not have supported the Union and would be fired on
Friday.
MENLO FOOD CORP. 349
and on brief, I do not find the attacks on the Respondent’s
evidence in this aspect of the case effective. There were varia-
tions in the versions of events between Garcia and Mo but I
found them more plausibly part of the normal variations in the
recitation of events among different participant than suggestive
of a fabricated scenario or scheme to provide a pretext for a
discharge for concealed reasons. Rather, and I reach this result
in part on a favorable evaluation of the demeanor of Jose Gar-
cia and Lee Mo in this part of their testimony, as compared
with that of Ruiz, I simply believed Mo that she made a busi-
ness decision respecting Ruiz unrelated to the September 17
work stoppage or employee union activities.
Given these credibility resolutions and other findings, I con-
clude that Ruiz was not terminated in violation of Section
8(a)(3) of the Act and I shall dismiss this element of the com-
plaint.
(2) Daniel Castañeda
In many ways Castañeda’s discharge raises similar issues to
Ruiz’ discharge. In each case the alleged discriminatee de-
scribes a situation in which without apparent warning or justifi-
cation the Respondent’s agents discharge him without a formal
warning or other discipline short of discharge. In each case the
discharge falls on Friday, September 19, 1997, 2 days after the
workplace demonstration.
The Respondent’s case, as set forth in greater detail above,
includes testimony from Mo and Supervisors Garcia and Jime-
nez respecting a series of events which if credited would have
not unreasonably led Mo to discharge Castañeda. The General
Counsel’s argument is, in part, that these three individuals and
perhaps Luk who denied any knowledge of, or role in, the
discharge of Castañeda until after the event was consummated,
are in essence lying and have entered into a conspiracy to
falsify their testimony to conceal the true basis for Castañeda’
discharge. Such arrangements are not unheard of nor have I not
seriously regarding the General Counsel’s arguments. Simply
put, I am not persuaded even, as is the case at this stage of the
analysis, where the Respondent bears the burden of persuasion.
As the Latin maxim runs, the testimony of witnesses is to be
considered not merely numbered. The three witnesses on the
Respondent’s behalf had sound demeanors during these por-
tions of their testimony. It is not so much that Castañeda had a
markedly inferior demeanor rather: (1) that the three were
each at least as solid as witnesses; (2) they were mutually cor-
roborative—save for minor details which fell within the normal
range of human variation—and, (3) told a story neither inher-
ently implausible nor at fatal variance with the remaining cred-
ited portions of the record evidence.
In summary, I have considered the arguments of the parties
on the Castañeda discharge in their entirety in light of the de-
meanor of the witnesses and the record as a whole with the
burden of persuasion at this stage of the analysis explicitly on
the Respondent. I find that the Respondent has met that bur-
den. Thus, I find the Respondent has established that it would
have discharged Castañeda even had he not participated in the
workplace demonstration on September 17, 1997.
Given these credibility resolutions and other findings, I con-
clude that Castañeda was not terminated in violation of Section
8(a)(3) of the Act and I shall dismiss this element of the com-
plaint.
3. Allegations of violations of Section 8(a)(5) and (1) of
the Act
The concept of a bargaining order as a remedy for unfair la-
bor practices was elucidated by the Supreme Court in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969). Relevant to the in-
stant case, the Court distinguished between the situation in
which the union had at one point a card majority and the em-
ployer’s conduct has a tendency to undermine majority
strength and impede the election processes, with the situation
where the employer’s unfair labor practices are minor and less
extensive and have only a minimal impact on the election proc-
ess. In the former situation the Court approved the Board’s
direction of a bargaining order. In the latter the Court deter-
mined no such order was appropriate.
In the years following the Court’s decision, the Board’s
categorization of numerous bargaining-order cases into one or
the other of these two general classes has created a substantial
body of law on the issue. While the parties vigorously con-
tested the issue of whether all the allegations of the complaint
in their totality supports a bargaining order remedy, it is ap-
propriate at this stage of the analysis to determine only if the
unfair labor practices found herein support or require such a
remedy. I find there is little question that they do not.
The violations found include the Respondent agents’ wrong-
ful interrogations, solicitations of surveillance of other employ-
ees’ union activities, and solicitation of grievances with implied
promises to remedy those grievances. Without denigrating the
seriousness of the violations or the importance of a remedy to
those violations, utilizing the Court’s language, I find the viola-
tions are minor and less extensive and have only a minimal
impact on the election process. I conclude these violations are
insufficient to support a finding that a new election could not be
fairly conducted. Thus, it is neither necessary nor appropriate to
issue a bargaining order herein. This being so, it is unneces-
sary to consider whether or not the Union had obtained valid
and timely majority support in the bargaining unit or other
predicate facts necessary for a bargaining order to issue.
IV. THE OBJECTIONS
The March 2, 1998 report and recommendation on objec-
tions, order consolidating cases, and notice of hearing sets forth
the Union’s objections which remain at issue:

2. The Employer, by its agents, intimidated eligible
voters with loss of employment opportunities if they sup-
ported the Union
3. The Employer, by its agents, made promises of
benefits to those eligible voters who would vote against
the Union, and made promises of benefits to all eligible
employees as an inducement not to vote for the union, and
promised benefits it the Union lost
6. The [Employer], by its agents, interfered with, re-
strained and or coerced employees in the exercise of their
rights guaranteed by Section 7 of the Act;
7. The [Employer], by its agents, interfered with, re-
strained and or coerced employees in the exercise of their
rights guaranteed by Section 7 of the Act.

These objections adopt the allegations of the complaint which
are alleged to have occurred on or between the date of filing of
the representation petition, September 24, 1997, and the date of
the election, November 12, 1997. The objections raise no new
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350
factual issues beyond those addressed, above, in the unfair la-
bor practice portion of this decision.
An election may be set aside only if improper conduct oc-
curred after the filing of the petition and before the election is
concluded. The prepetition allegations of violations of Section
8(a)(1) and (3) are therefore immaterial to the resolution of the
objections. So, too, the postelection allegations of the com-
plaint have no relevance to the objections at issue herein.
With respect to the unfair labor practice allegations that were
alleged to have occurred in the relevant period, a portion, in-
cluding the “wage increase” and “campaign literature” allega-
tions as well as certain allegations pertaining to Tovar, have
been found without merit above. Having found the conduct at
issue respecting those allegations did not occur as alleged in the
complaint, and based on that analysis, I find that the Em-
ployer’s activities therein considered do not constitute objec-
tionable conduct.
The remaining portion of the complaint allegations falling
within the petition date-election date window are the allega-
tions of subparagraph 6(a)(2) of the complaint respecting Luk
and subparagraphs 6(b)(2)(B) and (C) involving Tovar. I have
sustained those allegations, supra. No further factual analysis
of those allegations need be undertaken save a revisiting of the
timing of the events underlying complaint subparagraph
6(a)(2). The complaint alleges these events occurred in “early
November.” While determining a precise date of the events
within November was not of great significance for purposes of
the unfair labor practice analysis, it is critical to the objections
analysis that the events be located either before or after the
November 12, 1997 election. I find there is no question the
events found to violate the Act occurred before the election.
The credited testimony of Alfredo Gutierrez was that the con-
versation underlying the complaint allegation occurred 1 or 2
weeks before the election. Further, the content of the conversa-
tion as presented in Gutierrez’ credited testimony supports the
conclusion that the conversation occurred in the preelection
period for the conversation with Luk concerned the extent of
employee support for the Union and such issues are invariably
of concern before or during and not after the election.
The unfair labor practices found above which were also
found to have occurred within the objections window include
Tovar’s October 29, 1997 statements at a meeting of employees
and Luk’s preelection statements to a single employee. In con-
sidering such conduct for purposes of determining if a new
election should be directed, the Board looks to the number of
incidents involved, their severity, the extent of dissemination,
the size of the unit and other relevant factors. Archer Services,
298 NLRB 312 (1990). The test is an objective one—whether
the conduct has a tendency to interfere with employee free
choice. Hopkins Nursing Care Center, 309 NLRB 958 (1992).
In the instant case the vote among the approximately 43 eli-
gible votes was very high—43 ballots cast—and the result was
very close. Indeed, the balloting was as close as it could be and
not require additional investigation of the two remaining chal-
lenged ballots. The Regional Director’s Report and Recom-
mendations on Objections notes that of approximately 43 eligi-
ble voters, 19 cast ballots for the Union and 21 against. The
eligibility of two additional challenged voters whose ballots
were impounded was not resolved because the two ballots,
even if counted, were arithmetically insufficient to change the
final result, i.e., even if both ballots were found properly
counted and were in favor of the Union, the Union would have
obtained a tie vote and would not have achieved a majority of
the valid votes cast.
The statements of Tovar and Luk, found violative of the
Act as set forth in detail above, of their very nature would have
a likelihood of swaying employee voters. I find the conduct
had a tendency to interfere with employee free choice. Tovar’s
wrongful conduct was directed to at least four employees. Fur-
ther, the General Counsel established that there was significant
dissemination of Tovar’s statements at these election meetings
by attending employees to other employees. Given the size of
the direct and indirect audience to the Respondent’s improper
conduct, there is no question and I find that the wrongful con-
duct involved here is not isolated, de minimus or insufficient to
have had an effect on the election result. Thus, I find the Em-
ployer’s improper conduct likely interfered in free employee
election choice and, in light of the close result of the balloting,
likely made a difference in the election result. Given all the
above, I sustain the Union’s objections. Accordingly, I shall
recommend to the Board that it set the election aside and direct
a new election at an appropriate time and place.
REMEDY
Having found the Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease-and-
desist therefrom and to take certain affirmative action necessary
to effectuate the purposes and policies of the Act including the
posting of a remedial notice consistent with the Board’s recent
modifications to its standard remedies in Indian Hills Care
Center, 321 NLRB 144 (1996).
CONCLUSIONS OF LAW
On the basis of the above findings of fact and the record as a
whole, I make the following
1. Menlo Food Corporation is and has been at all relevant
times 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. The Respondent violated Section 8(a)(1) of the Act by:
(a) Interrogating employees about their union activities.
(b) Threatening employees with unspecified reprisals be-
cause of their union activities.
(c) Soliciting employees to surveil other employees’ union
activities.
(d) Soliciting employees’ grievances with the implied prom-
ise that those grievances would be remedied without the em-
ployees needing to select the Union to represent them.
4. The above unfair labor practices constitute unfair labor
practices effecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent did not otherwise violate the Act as al-
leged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended
ORDER
The Respondent, Menlo Foods Corporation, East Palo Alto,
California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union activities.
(b) Threatening employees with unspecified reprisals be-
cause of their union activities.
MENLO FOOD CORP. 351
(c) Soliciting employees to surveil other employees’ union
activities.
(d) Soliciting employees’ grievances with the implied prom-
ise that those grievances would be remedied without the em-
ployees needing to select the Union to represent them.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
East Palo Alto, California facility copies of the attached notice
marked “Appendix.”12 Copies of the notice, on forms provided
by the Regional Director, in English and such other languages
as the Regional Director determines are necessary to fully
communicate with employees, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure the notices are not altered, defaced, or
covered by other material. In the event that, during the pen-
dancy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time during or after
September 1997.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
RECOMMENDATIONS RESPECTING OBJECTIONS
I recommend that the Petitioner’s objections to election
numbers 2, 3, 6, and 7, and each of them, be sustained. It is
further recommended that the Board set aside the election of
November 12, 1997, and direct a new election, as appropriate.

12 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT interrogate our employees about their union ac-
tivities and sentiments.
WE WILL NOT solicit employees to surveil other employees’
union activities.
WE WILL NOT threaten employees with unspecified reprisals
because of their union activities.
WE WILL NOT solicit employees’ grievances with the implied
promise that those grievances would be remedied without the
employees needing to select the Union to represent them.
WE WILL NOT in any like or related manner violate the Na-
tional Labor Relations Act.

MENLO FOODS CORPORATION