Mission Foods

National Labor Relations Board - Board Decisions

Jul 27, 2007

350 N.L.R.B. 336 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
350 NLRB No. 36
336
Gruma Corporation d/b/a Mission Foods and United
Food and Commercial Workers International
Union Local 99, CLC. Cases 28–CA–17946, 28–
CA–18056–1, 28–CA–18112, 28–CA–18112–2,
28–CA–19076, and 28–CA–20202
July 27, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On March 29, 2006, Administrative Law Judge Albert
A. Metz issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-
exceptions and a supporting brief, the Respondent filed
an answering brief, and the General Counsel filed a reply
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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions as modified and to adopt the recom-
mended Order as modified and set forth in full below.2
I. INTRODUCTION
This case arose in the wake of an organizing campaign
and representation election among the Respondent’s em-
ployees at its Tempe, Arizona food manufacturing facil-
ity in 2001. In 2004, the Board certified the Union as the
employees’ exclusive collective-bargaining representa-
tive. The complaint alleges, and the judge found, that the

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(1) of the Act by maintaining handbook
rules prohibiting employees from: (i) remaining in nonwork areas when
they are off duty; (ii) leaving the premises, their assigned work areas, or
ceasing work, without authorization; (iii) distributing literature of any
kind on company property or on customer premises during nonworking
time and in nonworking areas; and (iv) making false statements con-
cerning the Company, its employees, or its products and services.
Also, in the absence of exceptions, we adopt the judge’s finding that the
Respondent violated Sec. 8(a)(5) and (1) of the Act by failing to pro-
vide the Union with requested information that was relevant to its rep-
resentational duties.
2 We shall modify the judge’s recommended Order and substitute a
new notice to conform to our findings and to the Board’s standard
remedial language.
Respondent committed various unfair labor practices
during the 2001 to 2004 time period.
Specifically, the judge found, and we agree for the rea-
sons set forth in his decision, that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by taking the
following actions without giving the Union notice and an
opportunity to bargain: (i) eliminating a bargaining unit
position from the sanitation department; (ii) transferring
employee Michaela Burgara from the sanitation depart-
ment to another department; (iii) subcontracting the sani-
tation department work; and (iv) eliminating its em-
ployee-of-the-quarter award. We also agree with the
judge’s findings that the Respondent violated Section
8(a)(5) and (1) by unilaterally changing its method for
determining whether to grant an annual wage increase
and by unilaterally failing to grant a wage increase in
2002, but we clarify the judge’s rationale.3 Similarly,
although we agree with the judge’s dismissal of the com-
plaint allegations that the Respondent unlawfully sus-
pended and discharged employee Ramon Marquez, we
do so only for the reasons discussed below.
II. THE FAILURE TO GRANT A WAGE INCREASE
IN 2002
Beginning no later than 1998, the Respondent main-
tained a practice of granting employees annual wage in-
creases during the first quarter of every calendar year.
According to the Respondent’s employee handbook, an
employee’s total wage increase consisted of any combi-
nation of three parts: (1) a merit increase; (2) a “struc-
tural scale increase,” based on the Respondent’s assess-
ment of the local job market; and (3) a “step” increase,
i.e., a job promotion. The Respondent determined the
amount of the structural scale increase by conducting a
telephone survey of other area companies to assess wage
levels in the local market.
In September 2001, 1 month after winning the repre-
sentation election, the Union wrote to the Respondent,
insisting that any wage “increases be implemented in the
normal course of business” and that the Union “be given
advanced notice of and an opportunity to bargain regard-
ing any such [wage] increases.” Notwithstanding the

3 As the judge noted, at the time of the hearing, the Respondent was
challenging the validity of the Union’s certification. Thus, the Respon-
dent had refused generally to recognize and bargain with the Union; the
Board had issued a decision finding that the Respondent’s conduct
violated Sec. 8(a)(5), see Mission Foods, 345 NLRB 788 (2005); and
the Respondent had filed a petition for review of that decision in the
United States Court of Appeals for the District of Columbia Circuit (the
Board filed a cross-application for enforcement). Following the hear-
ing and the issuance of the judge’s decision, the D.C. Circuit, in an
unpublished judgment, denied the Respondent’s petition for review and
granted the Board’s cross-application for enforcement. See Mission
Foods v. NLRB, 200 Fed.Appx. 4 (D.C. Cir. 2006) (per curiam).
MISSION FOODS 337
Union’s request, the Respondent, without giving the Un-
ion notice or an opportunity to bargain, unilaterally de-
cided that no structural increases would be given in 2002.
The Respondent also unilaterally changed the method-
ology it used for determining whether to grant employees
a structural increase. First, in place of the local market
survey, the Respondent used a survey that included em-
ployers throughout the State of Arizona. Second, the
Respondent did not conduct the wage survey until Octo-
ber, although its past practice had been to conduct the
survey during the first quarter of the year. Third, the
Respondent considered not only the results of the wage
survey, but also its recruitment and retention needs.
There is no evidence that those factors had been consid-
ered prior to 2002.
In analyzing whether the Respondent’s conduct vio-
lated Section 8(a)(5) and (1) of the Act, the judge applied
the multifactor analysis set forth in Dynatron/Bondo
Corp.,4 and found that the Respondent had an established
practice of granting first-quarter “merit” increases to
employees. The judge further found that, given this
practice, the Respondent had an obligation to bargain
with the Union before deciding not to grant a “merit”
wage increase in 2002, and that by failing to do so, the
Respondent violated Section 8(a)(5) and (1) of the Act.
The judge also found that the Respondent violated Sec-
tion 8(a)(5) and (1) by unilaterally changing its method
for determining whether to grant such an increase. We
agree with the judge’s unfair labor practice findings, but
not his entire rationale.
Initially, we agree with the Respondent that the judge
mischaracterized the wage increase withheld in 2002 as a
merit-based increase. In fact, the record shows that it
was a structural scale increase.5 The judge’s error, how-
ever, does not warrant a different result.
It is well settled that an employer violates Section
8(a)(5) and (1) if it unilaterally changes a term or condi-
tion of employment. NLRB v. Katz, 369 U.S. 736 (1962).
“This is so even if the Union has only won an election,
but has not yet been certified as the bargaining represen-

4 323 NLRB 1263 (1997), enfd. in relevant part 176 F.3d 1310 (11th
Cir. 1999). In Dynatron/Bondo, the Board found that the employer had
a past practice of granting merit-based wage increases, and that the
employer violated Sec. 8(a)(5) and (1) of the Act by refusing to bar-
gain over the discontinuance of the program. In determining that the
raises at issue were an established past practice, the Board found the
following factors relevant: (1) the sole, fixed criterion for granting a
raise was merit; (2) the timing of the increase was fixed; (3) the amount
of the raise, although discretionary, fell within a narrow range; (4) the
majority of employees received the increase; and (5) the increases had
been consistently granted over a significant period of time. Id. at 1264.
5 The General Counsel never alleged that the Respondent violated
the Act by failing to grant any increase other than the structural scale
increase.
tative of the company’s employees.” NLRB v. Talsol
Corp., 155 F.3d 785, 794 (6th Cir. 1998). A wage in-
crease program constitutes a term or condition of em-
ployment when it is an “established practice . . . regularly
expected by the employees.” Daily News of Los Angeles,
315 NLRB 1236, 1239 (1994), enfd. 73 F.3d 406 (D.C.
Cir. 1996), cert. denied 519 U.S. 1090 (1997). Factors
relevant to this determination include “the number of
years the program has been in place, the regularity with
which raises are granted, and whether the employer used
fixed criteria to determine whether an employee will re-
ceive a raise, and the amount thereof.” Rural/Metro
Medical Services, 327 NLRB 49, 51 (1998). “[I]t is the
unilateral change in the terms and conditions of employ-
ment that results in the finding of an 8(a)(5) violation,
not the type of wage increase that is continued or discon-
tinued.” Daily News of Los Angeles, supra, 315 NLRB at
1239.
Here, the record shows that the structural wage in-
crease was a term and condition of employment. Thus,
the Respondent had granted a structural wage increase to
employees for at least 4 years prior to 2002. In addition,
the timing of the increase was fixed, as the increases
were consistently granted during the first quarter of each
year. Further, the sole criterion for determining the
amount of the structural wage increase was fixed (the
local wage survey). Finally, the majority of the Respon-
dent’s employees—at least 80 percent—received this
annual first-quarter wage increase, and those increases
fell within a narrow range.6 Taking all of these factors
into account, we find that the annual structural wage in-
crease was an established term and condition of em-
ployment by 2002.
That being the case, the Respondent was obliged to
maintain the fixed elements of the structural wage in-
crease program—the local wage survey and its timing—
and to negotiate with the Union over the discretionary
element of the structural wage increase—the amount.
Daily News of Los Angeles, supra, 315 NLRB at 1239.
The Respondent, however, failed on both counts.
First, the Respondent unilaterally changed its estab-
lished method for determining whether its employees
were entitled to a structural wage increase. As described,
prior to 2002 the Respondent conducted a telephone sur-
vey of local companies to assess area wages. In 2002,
the Respondent switched to a statewide market survey.
In addition, the Respondent changed the timing of the

6 In 2000, employees received structural wage increases ranging
from 1.56 to 7.10 percent; in 2001, the structural wage increases ranged
from 3.17 to 7.69 percent. See Dynatron/Bondo Corp., 323 NLRB
1263 fns. 6–9 (1997), enfd. in relevant part 176 F.3d 1310 (11th Cir.
1999) (increases ranged from 1.5 to 8.5 percent).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD338
wage survey from February/March to October. Further,
for the first time, the Respondent considered not only the
wage survey, but also its recruitment and retention needs.
By unilaterally making these changes, the Respondent
violated Section 8(a)(5) and (1) of the Act. See Hyatt
Regency Memphis, 296 NLRB 259 fn. 2, 285–286
(1989), enfd. 939 F.2d 361 (6th Cir. 1991) (unilateral
changes to wage adjustment plan); see also J. P. Stevens
& Co. v. NLRB, 623 F.2d 322 (4th Cir. 1980), enfg. in
part 239 NLRB 738 (1978) (unilateral alteration to
method of computing holiday pay).
Second, the Respondent failed to give the Union notice
and an opportunity to bargain regarding the amount of
the increase, i.e., its determination that no structural
wage increases would be given to employees in 2002.
By such unilateral conduct, the Respondent additionally
violated Section 8(a)(5) and (1). Daily News of Los An-
geles, supra.7
III. THE SUSPENSION AND DISCHARGE OF EMPLOYEE
MARQUEZ
Unit employee Ramon Marquez began working for the
Respondent in 1994. Marquez engaged in union activity
during the organizing campaign in 2001. The Respondent
suspended and then discharged him in July 2002 after he
damaged a piece of manufacturing equipment. The com-
plaint alleges that it was Marquez’ union activity, not the
equipment damage, that motivated his suspension and
discharge, and that the Respondent thereby violated Sec-
tion 8(a)(3) and (1) of the Act.
The judge, however, dismissed those complaint allega-
tions. The judge found that the General Counsel did not
meet his initial Wright Line8 burden of showing that
Marquez’ union activity was a motivating factor in the
Respondent’s decision to suspend and discharge him.
Specifically, the judge found that the management offi-
cial primarily responsible for the adverse actions again
Marquez had no knowledge of his union activities. The
judge further found that, even assuming the General
Counsel had satisfied his initial burden, the Respondent
established that it would have suspended and discharged
Marquez in any event based on the equipment damage.
We agree with the judge’s dismissal of these allegations,

7 Chairman Battista notes that there was no notice to the Union and
opportunity to bargain. If there had been, he would conclude that the
Respondent’s action would have been lawful, even if impasse had not
been reached. See his position in Neighborhood House Assn., 347
NLRB 553, 555 at fn. 8 (2006).
We shall leave to the compliance stage of this proceeding the deter-
mination of how much of a structural wage increase employees would
have received in the absence of the Respondent’s unlawful conduct.
See Hyatt Regency Memphis, supra, 296 NLRB at 259 fn. 2.
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
but we rely only on the General Counsel’s failure to es-
tablish that the Respondent had knowledge of Marquez’
union activities.
The Respondent’s suspension and discharge of
Marquez was handled by Human Resources Manager
Elizabeth Laytong, who had only recently joined the Re-
spondent, in April 2002. Laytong suspended Marquez,
investigated his alleged damage to equipment, and rec-
ommended his discharge to Vice President Jim Needles,
who approved it without further inquiry.
The judge specifically credited Laytong’s testimony
that she had no knowledge of Marquez’ prior union ac-
tivity in 2001. Although there is testimony that Needles
had knowledge of certain employees’ union activity, he
denied having knowledge of Marquez’ union activity,
and there is no evidence to the contrary.9
In these circumstances, we find that the General Coun-
sel failed to establish that the Respondent knew about
Marquez’ union activity when it suspended and dis-
charged him. In particular, Human Resources Manager
Laytong’s credited testimony establishes that she had no
such knowledge, and it was Laytong who suspended
Marquez and effectively recommended his discharge. In
addition, the General Counsel has not shown that Vice
President Needles, who made the final discharge deci-
sion, was aware of Marquez’ prounion sentiments. Fur-
ther, we agree with the judge that the record as a whole
does not provide a basis for inferring knowledge. Absent
evidence of knowledge, the General Counsel failed to
satisfy his initial Wright Line burden of demonstrating
that the suspension and discharge were discriminatorily
motivated. See, e.g., Tomatek, Inc., 333 NLRB 1350,
1353 (2001) (“[C]redible proof of ‘knowledge’ is a nec-
essary part of the General Counsel’s threshold burden,
and without it, the complaint cannot survive.”).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified and set forth below, and orders that the Re-

9 We recognize that, in sec. VIII,B, par. 2 of his decision, the judge
stated that a human resources representative, Ludy Tamayo, testified
that she became aware of Marquez’ union activity in August 2001,
shortly before the election, and that she reported this information to
higher management, including Vice President Needles. The record
shows, however, that Tamayo testified that she remembered passing
this information to only one person—her supervisor, Karen Larsen.
There is no evidence that Tamayo or Larsen shared their knowledge of
Marquez’ union activity with any other members of management.
Thus, contrary to the judge’s statement, Tamayo’s testimony does not
establish Needles’ knowledge of Marquez’ union activity. Further,
with respect to Larsen, the record shows that she left the Respondent’s
employ in about September 2001, some 7 months before Laytong was
hired and some 10 months before Marquez’ suspension and discharge.
MISSION FOODS 339
spondent, Gruma Corporation d/b/a Mission Foods,
Tempe, Arizona, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Food
and Commercial Workers International Union, Local 99,
CLC, by changing employees’ terms and conditions of
employment, including discontinuing the employee-of-
the-quarter award, withholding the annual structural
wage increase, changing the method for determining
whether to grant a structural wage increase, and failing to
bargain over the amount of the structural wage increase,
without first giving the Union notice and an opportunity
to bargain.
(b) Refusing to bargain collectively with the Union by
eliminating a bargaining unit position from the sanitation
department, by transferring employee Michaela Burgara
from the sanitation department to another department, or
by subcontracting the sanitation department work, with-
out first giving the Union notice and an opportunity to
bargain.
(c) Failing and refusing to provide relevant informa-
tion requested by the Union for the purpose of carrying
out its representational duties.
(d) Maintaining in employee handbooks, or anywhere
else, rules that: (i) prohibit employees from remaining in
nonwork areas when they are off duty; (ii) prohibit em-
ployees from leaving the premises, their assigned work
areas, or ceasing work, without authorization; (iii) pro-
hibit employees from distributing literature of any kind
on company property or on customer premises during
nonworking times and in nonworking areas; or (iv) pro-
hibit employees from making false statements concern-
ing the Company, its employees, and its products and
services.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All full-time and regular part-time TQ techs, sanitation
techs, receivers, customer service reps, mechanics, pro-
duction operators, production packers, production
sweepers, production ingredients, production maseca
dumpers employed by the Respondent at its facilities
located at 5860 South Ash Avenue, Tempe, Arizona,
and all full-time and regular part-time warehousemen
employed by the Respondent at its facilities located at
840 West Carver Road, Tempe, Arizona; but excluding
all other employees, office clericals, guards, and super-
visors as defined in the Act.
(b) Make the unit employees whole for any loss of
earnings and other benefits they may have suffered by
reason of the Respondent’s failure to grant structural
wage increases in 2002. Backpay shall be computed in
accordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
(c) Rescind the unlawful rules contained in the em-
ployee handbook that: (i) prohibit employees from re-
maining in nonwork areas when they are off duty; (ii)
prohibit employees from leaving the premises, their as-
signed work areas, or ceasing work, without authoriza-
tion; (iii) prohibit employees from distributing literature
of any kind on company property or on customer prem-
ises during nonworking times and in nonworking areas;
and (iv) prohibit employees from making false state-
ments concerning the Company, its employees, or its
products and services.
(d) Furnish all current employees with inserts for the
current employee handbook that (1) advise that the
unlawful rules have been rescinded, or (2) provide the
language of lawful rules; or publish and distribute re-
vised handbooks that (1) do not contain the unlawful
rules, or (2) provide the language of lawful rules. Jupiter
Medical Center Pavilion, 346 NLRB No. 61, slip op. at 4
(2006).
(e) Discontinue subcontracting bargaining unit work in
the sanitation department and notify and, on request, bar-
gain with the Union over any decision to subcontract out
bargaining unit work.
(f) Restore the janitorial functions in the sanitation de-
partment as they existed prior to September 2003.
(g) Within 14 days from the date of this Order, rescind
the unilateral transfer of employee Michaela Burgara
from the sanitation department and offer her full rein-
statement to her former position as it existed before the
unlawful action, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
(h) Make Michaela Burgara whole for any loss of earn-
ings and other benefits she may have suffered as a result
of the unlawful changes in terms and conditions of em-
ployment resulting from eliminating her unit position in
the sanitation department. Backpay is to be computed in
accordance with Ogle Protection Service, supra, with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD340
interest as computed in New Horizons for the Retarded,
supra.
(i) Rescind the unilateral change made by terminating
the employee-of-the-quarter award, restore the award,
and make unit employees whole for any loss of earnings
and other benefits they suffered as a result of this unilat-
eral change. Backpay is to be computed in accordance
with Ogle Protection Service, supra, with interest as
computed in New Horizons for the Retarded, supra.
(j) Furnish the Union the information it requested in its
August 7, 2002 letter.
(k) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(l) Within 14 days after service by the Region, post at
its facility in Tempe, Arizona, copies of the attached no-
tice marked “Appendix.”10 Copies of the notice written
in both English and Spanish, on forms provided by the
Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of
business, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice in both English and
Spanish to all current employees and former employees
employed by the Respondent at any time since Septem-
ber 2001.
(m) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations not specifically found.

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with United
Food and Commercial Workers International Union, Lo-
cal 99, CLC, by changing employees’ terms and condi-
tions of employment, including discontinuing the em-
ployee-of-the-quarter award, withholding the annual
structural wage increase, changing the method for deter-
mining whether to grant a structural wage increase, and
failing to bargain over the amount of the structural wage
increase, without first giving the Union notice and an
opportunity to bargain.
WE WILL NOT refuse to bargain collectively with the
Union by eliminating a bargaining unit position from the
sanitation department, by transferring employee
Michaela Burgara from the sanitation department to an-
other department, or by subcontracting the sanitation
department work, without first giving the Union notice
and an opportunity to bargain.
WE WILL NOT fail and refuse to provide relevant infor-
mation requested by the Union for the purpose of carry-
ing out its representational duties.
WE WILL NOT maintain in employee handbooks, or
anywhere else, rules that: (i) prohibit you from remaining
in nonwork areas when you are off duty; (ii) prohibit you
from leaving our premises, your assigned work areas, or
ceasing work, without authorization; (iii) prohibit you
from distributing literature of any kind on company
property or on customer premises during nonworking
times and in nonworking areas; or (iv) prohibit you from
making false statements concerning the Company, its
employees, and its products and services.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
MISSION FOODS 341
WE WILL, before making any changes in wages, hours,
or other terms and conditions of employment, notify and,
on request, bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time TQ techs, sanitation
techs, receivers, customer service reps, mechanics, pro-
duction operators, production packers, production
sweepers, production ingredients, production maseca
dumpers employed by us at our facilities located at
5860 South Ash Avenue, Tempe, Arizona, and all full-
time and regular part-time warehousemen employed by
us at our facilities located at 840 West Carver Road,
Tempe, Arizona; but excluding all other employees, of-
fice clericals, guards, and supervisors as defined in the
Act.
WE WILL make you whole for any loss of earnings and
other benefits, including interest, you may have suffered
by reason of our failure to grant structural wage increases
in 2002.
WE WILL rescind the unlawful rules contained in the
employee handbook that: (i) prohibit you from remaining
in nonwork areas when you are off duty; (ii) prohibit you
from leaving the premises, your assigned work areas, or
ceasing work, without authorization; (iii) prohibit you
from distributing literature of any kind on company
property or on customer premises during nonworking
times and in nonworking areas; and (iv) prohibit you
from making false statements concerning the Company,
its employees, or its products and services.
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise that the unlawful rules
have been rescinded, or (2) provide the language of law-
ful rules; or publish and distribute revised handbooks that
(1) do not contain the unlawful rules, or (2) provide the
language of lawful rules.
WE WILL discontinue subcontracting bargaining unit
work in the sanitation department and notify and, on re-
quest, bargain with the Union over any decision to sub-
contract out bargaining unit work.
WE WILL restore the janitorial functions in the sanita-
tion department as they existed prior to September 2003.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the unilateral transfer of employee
Michaela Burgara from the sanitation department and
offer her full reinstatement to her former position as it
existed before the unlawful action, without prejudice to
her seniority or any other rights or privileges previously
enjoyed.
WE WILL make Michaela Burgara whole, with interest,
for any loss of earnings and other benefits she may have
suffered as a result of the unlawful changes in terms and
conditions of employment resulting from eliminating the
unit position in the sanitation department.
WE WILL rescind the unilateral change made by termi-
nating the employee-of-the-quarter award, WE WILL re-
store the award, and WE WILL make you whole, with in-
terest, for any loss of earnings and other benefits you
suffered as a result of this unilateral change.
WE WILL furnish the Union the information it requested
in its August 7, 2002 letter.
GRUMA CORPORATION D/B/A MISSION FOODS
John Giannopoulos, Esq., for the General Counsel.
Gerard Morales, Esq., Jacqueline Mendez Soto, Esq., and Lisa
Coulter, Esq., for the Respondent.
Martin Hernandez, for the Charging Party Union.
DECISION1
ALBERT A. METZ, Administrative Law Judge. The General
Counsel’s second consolidated complaint alleges that the Re-
spondent violated Section 8(a)(1) of the Act by maintaining
various handbook provisions since September 18, 2004; Sec-
tion 8(a)(1) and (3) by suspending and discharging employee
Ramon Marquez in 2002; and Section 8(a)(1) and (5) by failure
to award quarterly bonuses, failure to provide annual wage
increases, elimination of a bargaining unit position in the sani-
tation department, subcontracting the eliminated work to a third
party, and transfer of the unit employee to an unlike classifica-
tion in a different department without affording the Union an
opportunity to bargain about the conduct and the effects of the
conduct; and the failure to provide the Union with information
relevant to the performance of its duties as the unit’s collective-
bargaining representative.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent, an Arizona corporation, manufactures tor-
tilla and chip food products at a facility located in Tempe, Ari-
zona. The Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the United Food and Commercial
Workers International Union Local 99, CLC2 (the Union) is a
labor organization within the meaning of Section 2(5) of the
Act.

1 This matter was heard at Phoenix, Arizona, on April 18–20 and
November 30, 2005.
2 The Union’s name is amended to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005. Mission Foods, 345 NLRB 788, fn.
1 (2005).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD342
II. BACKGROUND
A. Respondent’s Supervisory Organization
At all relevant times, Plant Manager Paul De La O headed
the Respondent’s Tempe plant supervisory hierarchy. Santiago
Armstrong reported directly to De La O and supervised the
production department. German Ahumada reported to Arm-
strong, and oversaw the corn department.
Ludy Tamayo was the Respondent’s first-line human re-
sources representative at the plant. She reported directly to the
plant human resources manager. From April 2002 until May
2003, the plant human resources manager was Elizabeth Lay-
tong. Karen Larsen had been the previous human resources
manager. She quit her employment with the Respondent at
approximately the end of 2001. During the period after Larsen
quit and Laytong commenced her duties, Tamayo was chiefly
responsible for the plant’s human resources duties. She did,
however, harmonize her activities with Rosa Flores, the Re-
spondent’s corporate director of human resources. Flores works
at the Respondent’s headquarters in Irving, Texas. Jim Needles
was the Respondent’s vice president of human resources and
reported directly to Respondent’s president. Needles officed in
Irving, Texas, and was responsible for the Respondent’s human
resources operations in the United States and Europe. The Re-
spondent stipulated that De La O, Armstrong, Ahumada, Nee-
dles, Flores, Laytong, and Tamayo were, at the relevant times,
supervisors and agents of the Respondent within the meaning of
Sections 2(11) and 2(13) of the Act.
B. The Union’s Election Campaign
On July 13, 2001, the Union filed a petition with the Board
for a representation election in a unit of Respondent’s Phoenix
area production and warehouse employees. The Respondent
opposed union representation of the employees and conducted a
campaign to convince the workers that they did not need such
representation. An outside consultant, Carlos Restrepo, worked
with Needles in conducting the antiunion campaign. Needles
testified that both before and after the election Respondent’s
managers received information about the Union, including how
individual employees felt about the Union. This information
would then get “fed back” to Needles. For example, Tamayo
received information about the Union which she would discuss
with Needles. Needles, in turn, would share some of this in-
formation with Restrepo and De La O.
C. The Election
The Board conducted a representation election at the Re-
spondent’s Tempe facility on August 23, 2001. The Union won
that election. Over 3 years later, on November 22, 2004, the
Board certified the Union as the exclusive collective-bargaining
representative of the employees in the following appropriate
unit:
All full-time and regular part-time TQ techs, sanitation techs,
receivers, customer service reps, mechanics, production op-
erators, production packers, production sweepers, production
ingredients, production maseca dumpers employed by the Re-
spondent at its facilities located at 5860 South Ash Avenue,
Tempe, Arizona, and all full-time and regular part-time ware-
housemen employed by the Respondent at its facilities located
at 840 West Carver Road, Tempe, Arizona; but excluding all
other employees, office clericals, guards, and supervisors as
defined in the Act.
The Union continues to be the exclusive representative of the
unit employees under Section 9(a) of the Act.
Commencing in 2002, the Union filed various unfair labor
practice charges against the Respondent including those that are
the subject matter of the present litigation. Three weeks after its
election victory, the Union demanded bargaining and insisted
that Respondent refrain from making any unilateral changes
with respect to unit employees’ terms and conditions of em-
ployment. The Respondent, however, ignored the request be-
cause it had filed objections to the election. On August 27,
2005, the Board issued a decision that found that the Respon-
dent violated Section 8(a)(1) and (5) of the Act by unlawfully
failing and refusing to bargain with the Union and to furnish the
Union with necessary and relevant information requested by the
Union. Mission Foods, 345 NLRB 788 (2005). The Respon-
dent continues to refuse to bargain with the Union and has ap-
pealed the Union’s certification. That matter is presently before
the United States Court of Appeals for the District of Columbia
Circuit, along with the Board’s cross-application for enforce-
ment.
On December 29, 2004, the original consolidated complaint
was issued by the Regional Director. The Respondent filed a
Motion for Summary Judgment and the Board issued an Order
dated March 15, 2005, granting in part, and denying in part, the
Respondent’s motion.
III. EMPLOYEE HANDBOOK RULES
A. Rules Background
The Respondent has maintained an employee handbook for a
number of years. The handbook, printed both in English and
Spanish, applies to all of its Phoenix area employees and con-
tains rules of employee conduct. New employees are educated
as to the contents of the handbook and are required to sign an
acknowledgement that they have been given a copy and will
obey its rules. The General Counsel alleges that the following
rules contained in the Respondent’s handbook are violations of
Section 8(a)(1) of the Act. The Respondent asserts that the rules
are common policy statements required to maintain orderly
business operations.
B. No-Access Rule
The Respondent’s handbook contains the following no-
access rule:
NON-WORKING EMPLOYEES . . .
Employees after punching out must leave [the] premises im-
mediately and should not come back to [the] premises unless
requested by your immediate supervisor. Premises is defined
as on company property, and includes lunch room and park-
ing areas.
The Board stated the following standard regarding no-access
rules in TeleTech Holdings, Inc., 333 NLRB 402, 404 (2001):
A no-access rule for off-duty employees is valid only if it lim-
MISSION FOODS 343
its their access solely with respect to the interior of the plant
premises and other working areas; it is clearly disseminated to
all employees; and it applies to off-duty employees seeking
access to the plant for any purpose and not just those employ-
ees engaging in union activity. In addition, a rule denying off-
duty employees access to parking lots, gates, and other out-
side nonworking areas is invalid unless sufficiently justified
by business reasons. Tri-County Medical Center, 222 NLRB
1089 (1976). See also, e.g., Fairfax Hospital, 310 NLRB 299,
308–309 (1993).
The Respondent’s no-access rule is not limited to the interior
of the plant and nonworking areas, but extends to its entire
property including parking areas and nonworking areas. The
Respondent presented no evidence of a business justification
for prohibiting off-duty employees from its parking lots, gates,
or other outside nonwork areas. I find, therefore, that the Gen-
eral Counsel has shown by a preponderance of the evidence
that the Respondent’s no-access rule is a violation of Section
8(a)(1) of the Act. Mediaone of Greater Florida, Inc., 340
NLRB 277 (2003); Hudson Oxygen, 264 NLRB 61, 72 (1982).
C. Rules Relating to Leaving Assigned Work Area
and Premises
Respondent’s handbook contains two rules prohibiting em-
ployees from leaving the premises, their work area, or ceasing
work, without prior authorization. These rules read as follows:
MAJOR OFFENSES
The following offenses are cause for immediate discharge
upon their occurrence, without further notice or warning: . . .
27. Leaving company premises without authorization.
GENERAL OFFENSES
The following offenses may result in a verbal or written warn-
ing . . . may also be accompanied by a disciplinary suspen-
sion. Receipt of more than one (1) warning . . . in a twelve
(12) month period may be cause for further disciplinary action
up to and including discharge: . . .
3. Leaving assigned work area or ceasing work without au-
thorization.
The General Counsel argues that both rules are overly broad
because they intrude upon the employees’ rights to engage in
protected, concerted activities, such as an employee walk-out to
protest working conditions or to engage in an unfair labor prac-
tice strike. The Respondent asserts that these rules are reason-
able and permissible work rules.
In determining whether a respondent’s maintenance of a
work rule violates Section 8(a)(1), the Board uses the analysis
set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004). In that case, the Board stated:
[A]n employer violates Section 8(a)(1) when it maintains a
work rule that reasonably tends to chill employees in the ex-
ercise of their Section 7 rights. Lafayette Park Hotel, 326
NLRB 824, 825 (1998). In determining whether a challenged
rule is unlawful, the Board must, however, give the rule a rea-
sonable reading. It must refrain from reading particular
phrases in isolation, and it must not presume improper inter-
ference with employee rights. Id. at 825, 827. Consistent
with the foregoing, our inquiry into whether the maintenance
of a challenged rule is unlawful begins with the issue of
whether the rule explicitly restricts activities protected by Sec-
tion 7. If it does, we will find the rule unlawful.
If the rule does not explicitly restrict activity protected
by Section 7, the violation is dependent upon a showing of
one of the following: (1) employees would reasonably
construe the language to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Section
7 rights.
Where a rule is likely to have a chilling effect on Section 7
rights, the Board may conclude that its maintenance is an unfair
labor practice, even absent evidence of enforcement. See
NLRB v. Vanguard Tours, 981 F.2d 62, 67 (2d Cir. 1992), cit-
ing Republic Aviation v. NLRB, 324 U.S. 803 fn. 10 (1945).
The Respondent’s rules subjecting an employee to punish-
ment for leaving his work area, ceasing work without authori-
zation, or leaving company premises without permission are
unambiguous prohibitions that do touch upon Section 7 rights.
Situations where employees engaged in protected concerted
activity such as leaving a work area to complain to supervision
about wages, hours, or working conditions would fall within the
meaning of the rules. Likewise, a protected walk-out from work
would fall within the ambit of these disciplinary mandates. I
find that the employees would reasonably construe these rules
to prohibit Section 7 activity, that these rules would tend to
chill Section 7 rights, and I, therefore, conclude that the rules
violate Section 8(a)(1) of the Act.
D. No-Distribution Rule
Another “General Offense” rule contained in the Respon-
dent’s employee handbook states that employees are subject to
discipline up to discharge for:
7. Distribution of notices, pamphlets, booklets or bulletins of
any kind on company property or on customer premises.
A no-distribution rule which is not restricted to working time
and to work areas is overly broad and presumptively unlawful.
MTD Products, 310 NLRB 733 (1993); Our Way, Inc., 268
NLRB 394 (1983). The mere existence of an overly broad rule
of this kind tends to restrain and interfere with employees’
rights under the Act, even if the rule is not enforced. Brunswick
Corp., 282 NLRB 794, 795 (1987). When a rule is presump-
tively unlawful on its face, the employer bears the burden to
show that it communicated or applied the rule in a way that
conveyed a clear intent to permit distribution of literature in
nonworking areas during nonworking time. Ichikoh Mfg., 312
NLRB 1022 (1993), enfd. 41 F.3d 1507 (6th Cir. 1994).
The Respondent’s rule goes beyond the standards established
by the Board and courts in restricting its employees’ Section 7
rights regarding distribution of union materials. It includes,
without definition, the Respondent’s entire premises. No evi-
dence was presented that the Respondent communicated or
applied the rule in a way that demonstrated to employees a
clear intent to permit distribution of literature in nonworking
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD344
areas during nonworking time or that special circumstances
justified such a rule. The rule also prohibits, without definition,
its employees’ distribution of literature at customers’ premises.
I find, therefore, that the Respondent’s no-distribution rule is
overly broad and a violation of Section 8(a)(1) of the Act.
TeleTech Holdings, Inc., supra at 403, and cases cited therein.
E. Rule Prohibiting False and Malicious Statements
The final rule that the General Counsel alleges as unlawful is
the “General Offense” rule 16, that prohibits Respondent’s
employees, under the threat of discipline, from, “[m]aking
false, vicious or malicious statements concerning any employ-
ees, the company, or its products and services.”
A rule that prohibits and punishes merely false statements is
unlawful per se because the Act protects merely inaccurate
employee statements. Tawas Industries, 321 NLRB 269, 276
(1996). The Board has found that the maintenance of rules
similar to Respondent’s rule 16 violate Section 8(a)(1) of the
Act. Lafayette Park Hotel, 326 NLRB 824, 828 (1998) (“Mak-
ing false, vicious, profane, or malicious statements toward or
concerning the Lafayette Park Hotel or any of its employees.);
Cincinnati Suburban Press, 289 NLRB 966, 975 (1988) (“false,
vicious or malicious statements concerning any employee, su-
pervisor, the Company, or its product.”); Spartan Plastics, 269
NLRB 546, 552 (1984) (“false, vicious, or malicious statements
concerning any employee, supervisor, the Company, or its
products.”). I find that, insofar as Respondent’s rule 16 prohib-
its employees from making false statements it has a reasonable
tendency to chill protected activity and, therefore, violates Sec-
tion 8(a)(1) of the Act.
IV. INFORMATION REQUEST
On August 7, 2002, the Union sent Respondent a letter re-
questing that the company provide it with the following infor-
mation:
1. a list of every worker currently employed in the
unit, including his or her name, date of hire, rate of pay,
job classification, current address, and phone number;
2. a copy of any and all current company rules, poli-
cies, practices or procedures applicable to workers em-
ployed in the unit;
3. a complete description, including any summary plan
description as well as the plan itself for any benefit plan,
including pension, savings profit sharing, severance stock
incentive, vacation, health and welfare, training legal ser-
vices, child care or any other benefit plan relating to the
workers employed in the unit. Also provide the em-
ployee’s cost share, if any, of such benefits; and
4. a copy of the current job descriptions relating to
workers employed in the unit.
The Respondent replied to the Union’s request a week later
stating that it did not recognize the Union as the representative
of its employees, and therefore refused to provide the requested
information.
Information relating to wages, hours, and terms and condi-
tions of employment of unit employees is presumptively rele-
vant for purposes of collective bargaining and must be fur-
nished on request. Metro Health Foundation, Inc., 338 NLRB
802, 803 (2003). The Board has previously found that the spe-
cific type of information requested by the Union in its August 7
letter is presumptively relevant, and that the Respondent has
violated the Act by not producing the information after the
Union’s certification. Mission Foods, supra. slip op. at 5, 8–10.
I conclude that the Respondent has violated Section 8(a)(1) and
(5) of the Act by refusing to provide the information it has re-
quested. Sevakis Industries, Inc., 238 NLRB 309, 313 (1978).
V. UNILATERAL CHANGES IN THE SANITATION DEPARTMENT
A. Facts
Respondent’s unit employee Michaela Burgara, worked in
the sanitation department, where she cleaned offices, bath-
rooms, and the dining room. On September 29, 2003, Burgara
was informed by way of a memorandum that her position was
eliminated and the work was being subcontracted to an outside
party. The Respondent offered Burgara a job in the production
department, or “should you decide not to take the position you
will be paid all of your earned vacation and will be eligible for
unemployment.” Respondent never provided the Union with
notice or an opportunity to bargain about any of these decisions
or their effects.
Burgara accepted the Respondent’s offer for employment in
the production department. Burgara worked an average of 41
hours per week during the 12 pay periods immediately preced-
ing her transfer to the production department. The Respon-
dent’s records demonstrate that in the first 12 pay periods im-
mediately after her transfer, Burgara averaged 35 hours per
week.
B. Analysis—Elimination of Unit Job, Subcontracting Work,
and Transfer of Employee
A union must be given notice and afforded a meaningful op-
portunity to bargain before any changes are made in unit em-
ployees’ wages, hours, and terms and conditions of employ-
ment. Crane Co., 244 NLRB 103, 114 (1979). This obligation
extends to the elimination of bargaining unit positions, Kansas
AFL–CIO, 341 NLRB 1015, 1027 (2004); and to transferring a
bargaining unit employee, Wellman Industries, 222 NLRB 204,
206 (1976), enfd. 549 F.2d 830 (D.C. Cir. 1977), cert. denied
434 U.S. 818 (1977). It also applies to subcontracting bargain-
ing unit work, when such subcontracting does not constitute a
change in the scope, nature, or direction of the enterprise, but
only involves the substitution of one group of workers for an-
other to perform the same work. Socidad Española de Auxilio
Mutuo Beneficencia de P. R., 342 NLRB 458, 459 (2004). A
Respondent acts at its peril by making unilateral changes while
its election objections are pending. Mike O’Connor Chevrolet,
209 NLRB 701 (1974).
The Respondent substituted a third party to perform the jani-
torial functions such as cleaning of the offices, restrooms,
floors, carpet, etc. The Respondent did not offer any evidence
that the subcontracting was either a change in the scope and
direction of the enterprise, or that there was a compelling eco-
nomic reason that would have justified the unilateral changes. I
find, therefore, that by unilaterally eliminating Burgara’s job in
the sanitation department, subcontracting the work to a third
party, and transferring Burgara to a different department where
MISSION FOODS 345
she performed different job functions and initially received
lesser hours of work, the Respondent violated Section 8(a)(1)
and (5) of the Act.
VI. ELIMINATION OF THE EMPLOYEE-OF-THE-QUARTER
AWARD
A. Facts
For several calendar quarters prior to the August 2001 repre-
sentation election the Respondent maintained an “employee-of-
the-quarter” award program that awarded employees a $100
cash award each quarter. Employee nominations for the awards
were made to the human resources department and several em-
ployees per quarter were selected to receive the awards, their
names were announced in employee meetings and the names
were engraved on a plaque that was displayed on a bulletin
board. The Respondent gave this award for at least six consecu-
tive quarters during 2000–2001, with 47 such awards being
granted in 2000 alone.
Respondent gave its last award after the second quarter of
2001, and ended the program in September 2001, just after the
Union’s election victory. The Respondent’s posthearing brief
notes that, “The Quarterly Award for the third quarter would
have been issued in September-October 2001.” Respondent
never announced to its employees that it was ending the pro-
gram and the Respondent does not dispute that the discontinu-
ance of the award program was never discussed with the Union.
The Respondent asserts that the program was stopped because
Human Resources Manager Larsen resigned around the time
the quarterly award for the third quarter would have issued and
her replacement, Laytong, was not hired until April 2002. Lay-
tong testified that, at the time she was hired she did not know
about the quarterly award and learned about the program sev-
eral months after she was hired while assisting legal counsel
with the investigation of the charges.
B. Analysis—Discontinuation of the
Employee-of-the-Quarter Award
If an employer has an established service award program that
is based on job performance, and not linked to the employer’s
financial condition, it is a violation of the Act to unilaterally
discontinue the program. Mr. Potty, Inc., 310 NLRB 724, 729
(1993) (violation to unilaterally discontinue $25 sales bonus
that was based on job performance); Conval-Ohio, Inc., 202
NLRB 85 (1973) (violation to unilaterally discontinue a cash
award program for years of service). The Respondent’s em-
ployee-of-the-quarter award was a cash award that was not
linked to Respondent’s financial condition but was based upon
employees’ job performance. Awards were made for six con-
secutive quarters and given to at least 47 employees. The em-
ployees, thus, had a reasonable expectation that the awards
would continue. Waxie Sanitary Supply, 337 NLRB 303 (2001)
(employer’s conduct by paying three consecutive bonuses
raises the employees’ reasonable expectation that the bonus
will continue).
The Respondent does not dispute that was not recognizing
the Union at the time it unilaterally stopped the awards program
or that it did not give the Union notice of the programs discon-
tinuation. The Respondent argues, however, that the employee-
of-the-quarter is another matter over which it had no obligation
to bargain as the Union was not certified at the time. As noted
above, this argument is rejected because the Respondent acted
at its peril in not informing or bargaining with the Union about
this mandatory subject of bargaining. Mike O’Connor Chevro-
let, supra. I conclude, therefore, that the Respondent violated
Section 8(a)(1) and (5) of the Act by unilaterally discontinuing
the employee-of-the-quarter program without providing the
Union notice and an opportunity to bargain. Mr. Potty, Inc.,
supra.
The Respondent further argues that the allegation about the
awards program is barred because the Union filed the underly-
ing charge on May 17, 2002, more than 6 months after Respon-
dent discontinued the bonus in September 2001. Section 10(b)
of the Act provides in pertinent part that “no complaint shall
issue based upon any unfair labor practice occurring more than
six months prior to the filing of the charge with the Board and
the service of a copy thereof upon the person against whom
such charge is made.”
The Board has held that the 10(b) limitations period does not
begin to run until the aggrieved party has received actual or
constructive notice of the conduct that constitutes the alleged
unfair labor practice. Vanguard Fire & Security Systems, 345
NLRB 1016 (2005); Allied Production Workers Local 12
(Northern Engraving Corp.), 337 NLRB 16, 18 (2001) (The 6-
month period provided by Sec. 10(b) begins to run only when a
party has “clear and unequivocal notice” of the unfair labor
practice.); Concourse Nursing Home, 328 NLRB 692, 694
(1999). The party asserting the 10(b) defense has the burden of
showing actual or constructive notice. Courier-Journal, 342
NLRB 1093–1104 (2004).
I find that the Respondent has not met its Section 10(b) bur-
den of proof. The Respondent was refusing to recognize the
Union at the time it discontinued the program, and it has not
shown that it provided any actual notice to the Union regarding
the program’s termination. As to constructive knowledge of the
unilateral change the record shows that the discontinuation of
the award was never announced to the employees nor is there
any showing that the Union had representatives at the plant
who gained knowledge of the program’s cessation. The Board
has held that the fact that unit members may know of a change
in working conditions cannot be imputed to a union where, as
here, the employer is refusing to bargain with the union, and
there is no union steward at the facility. Adair Standish, 295
NLRB 985, 986 (1989), enfd. 914 F.2d 257 (6th Cir. 1990)
(employees’ knowledge of a change cannot be imputed to the
union where the employer is refusing to recognize the union);
St. George Warehouse, Inc., 341 NLRB 904 (2004) (no con-
structive notice where employer was refusing to bargain with
the union and the union did not have a steward in the shop to
police working conditions). I find, therefore, that the Respon-
dent has not met its burden of showing that the allegation in-
volving the award program is time barred by Section 10(b) of
the Act.
VII. ELIMINATION OF THE ANNUAL WAGE INCREASE
A. Facts
The Respondent has a long-term practice of giving employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD346
ees annual merit wage increases known as “wage structure” or
“scale” increases. These raises have been given every year
since at least 1998 with the exception of 2002. The increases
are put into effect during the first quarter of every calendar year
based on an evaluation of each employee’s individual perform-
ance. Over the period since 1998 the raises ranged from ap-
proximately 1 to 8 percent and were given to a vast majority of
the employees each year.
Prior to 2002 the Respondent conducted a telephone salary
survey of other area companies to ascertain the wage market.
Laytong was hired as the Respondent’s Human Resources
Manager in April 2002. Laytong testified that she did not
evaluate the wage scales for the 2002 year until approximately
6 months later. Laytong decided to use a different method of
determining wage increases and relied upon an Arizona Em-
ployer’s Council, Inc., survey focusing on the unskilled assem-
blers job classification for her analysis. Laytong testified that
she relied on the Arizona survey when it was decided not to
give merit wage increases in 2002. She continued to use this
method of assessing merit raises in the years subsequent to
2002.
On September 14, 2001, the Union wrote to the Respondent
and noted that the Union had been recently selected as the unit
employees’ collective-bargaining representative. The letter
stated in part that the Union insisted that normal wage increases
be given to employees and that it be “given advance notice of
and an opportunity to bargain regarding any such increases.”
The Respondent did not give employees any merit raises in
2002 in accordance with its past practice and it did not notify
the Union of its decision to withhold the wage increase.
B. Analysis—Deletion of 2002 Merit Wage Increase
An employer violates the Act if it makes unilateral changes
in wages, hours, and terms and conditions of employment,
without notifying the union or giving it a meaningful opportu-
nity to bargain. NLRB v. Katz, 369 U.S. 736 (1962). When an
employer has a pattern and practice of granting its employees
wage increases based on merit, employees view these increases
as fixed terms and conditions of employment which cannot be
altered without providing the Union notice and opportunity to
bargain. Dynatron/Bondo Corp., 323 NLRB 1263, 1266, 1273
(1997), enfd. in relevant part 176 F.3d (11th Cir. 1999), citing
Daily News of Los Angeles, 315 NLRB 1236, 1239 (1994),
enfd. 73 F.3d 406 (D.C. Cir. 1996), cert. denied 519 U.S. 1090
(1997). In determining whether such increases are part of the
employees’ existing wage structure the following factors are
relevant: (1) whether the criteria for granting the increase is
based on merit; (2) whether the timing of the increase is fixed;
(3) whether the amount of the increase, although discretionary,
falls within a narrow range; (4) whether the majority of eligible
employees receive the increase; and (5) whether the increase
has been granted over a significant period of time. Id.
The record shows that the Respondent relied on merit in
granting the wage increases, that they were regularly given in
the first quarter of each year, the raises ranged within a narrow
range of 1 to 8 percent the vast majority of employees always
received the raises, and they had been granted since 1998. The
raises were denied employees in the months following the Un-
ion’s victory in the representation election and the change was
made without notice to or bargaining with Union. I find, there-
fore, that the Respondent did have an established practice of
granting first quarter merit wage increases to employees when
it discontinued such raises for the 2002.
The Respondent contends it had no obligation to bargain
with the Union about the wage issue because it was contesting
the Union’s certification at the time. It is axiomatic that an
employer acts at its peril if it determines to make unilateral
changes during the pendency of election objections. Mike
O’Connor Chevrolet, supra; Dow Chemical Co. v. NLRB, 660
F.2d 637, 654 (5th Cir. 1981); Sundstrand Heat Transfer, Inc.
v. NLRB, 538 F.2d 1257, 1259 (7th Cir. 1976). The peril to the
employer is that if the Board rejects the employer’s objections
and certifies the union, the employer’s duty to bargain relates
back to the date of the election and its unilateral actions while
the objections were pending can be found as violations of the
Act. Id. The Respondent chose to ignore its bargaining obliga-
tions as to the annual merit wage increases and unilaterally
decided to not give such raises in 2002. I conclude, therefore,
that the Respondent did violate Section 8(a)(1) and (5) of the
Act by such unilateral action.
The Respondent also argues that it did not change anything
when it decided not to grant merit raises in 2002. Thus, it is
asserted that a survey was taken and the resulting conclusion
was that raises were not necessary. This argument misses the
point that the Respondent was under an obligation to bargain
about not granting any raises and that the survey method for
reaching its conclusion had changed from prior years. I find
that the Respondent made an unlawful unilateral change when
it used a different means for accessing area wages. I conclude
that the Respondent violated Section 8(a)(1) and (5) of the Act
when in 2002 it unilaterally changed the method by which it
surveyed salaries to determine the need for merit wage in-
creases. Daily News of Los Angeles, supra at 1237.
VIII. SUSPENSION AND DISCHARGE OF RAMON MARQUEZ
A. Background
Ramon Marquez was employed by the Respondent from
1994 until his discharge in July 2002. Marquez worked as a
packer in the corn department where he tied tortilla packages
using a machine known as a Tie-Matic. The Tie-Matic was
described as being a heavy metal machine that was attached to
a 3-by-3 foot steel table. When Marquez encountered a mal-
function to the machine, the conveyor belt that supplied him
with tortilla packages did not stop. The result was the packages
would accumulate and eventually fall to the floor.
B. Marquez’ Union Activity
Marquez became interested in union representation in spring
2001. At that time he attended union meetings with fellow em-
ployees and he hosted four to five such meetings at his resi-
dence.
Tamayo testified that shortly before the representation elec-
tion was held in August 2001 employee Susana Perez told her
that Ramon Marquez had attended a union meeting along with
his brother and coworker Antonio. Perez also told Tamayo that
the Union’s organizing committee was holding meetings in
MISSION FOODS 347
Antonio’s house. Actually the union meetings were being held
at Ramon’s house, and Tamayo admitted that Ramon may have
told her this sometime in 2001. Tamayo testified that she re-
ported information she obtained about the Union to her superi-
ors in management, including her manager and Needles, Re-
spondent’s vice president of human resources.
Needles was in overall charge of the Respondent’s antiunion
campaign leading to the election. He testified that he knew that
Ramon and Antonio Marquez were brothers, and that he knew
Antonio was a union supporter and was soliciting fellow em-
ployees to support the Union. Needles acknowledged that he
was also told that Antonio was holding union meetings at his
home. Needles shared this information with Plant Manager De
La O and the Respondent’s labor consultant, Carlos Restrepo.
Needles, however, denied that he suspected Ramon Marquez
was a union supporter.
C. Ramon Marquez’ Suspension and Termination
On July 4, 2002, the Respondent accused Ramon Marquez of
intentionally damaging the Tie-Matic machine. The Respondent
suspended him on that day and terminated him on July 9.
Marquez testified that while he was working on July 4 using
the Tie-Matic it malfunctioned. The credited record evidence
shows that he became angry and pushed the machine aside in
order to replace it with another machine.
Employee Roberto Munoz was working nearby and saw that
Marquez was having problems with his machine. Munoz went
to aid Marquez and began hand tying the packages. Munoz
watched as Marquez pushed the malfunctioning Tie-Matic to
one side, and pulled a replacement into his work area. Munoz
testified that he did not observe Marquez try to overturn the
machine or hit it with his fists.
Shortly after Marquez replaced the broken machine a lead
person, Rolando Trevino, came to his workstation and accused
him of hitting the machine. Marquez denied hitting the Tie-
Matic and told Trevino that he had simply pushed the machine
out of the way in order to replace it with another. Trevino,
however, left and complained to Department Supervisor Ger-
man Ahumada that Marquez had hit the errant machine and
been rude to him. Marquez was then summoned to the office
and Ahumada questioned him about what had happened.
Marquez told him that he only pushed the machine out of the
way in order to get a new one into use. Marquez denied that he
had hit the machine. Ahumada told Marquez that he was being
suspended for 3 days while Respondent investigated the inci-
dent.
Respondent’s employee Arturo Hernandez, an industrial me-
chanic, was summoned on July 4 to fix Marquez’ broken Tie-
Matic. He had not witnessed what Marquez did with the ma-
chine but Hernandez testified that it was his opinion that the
machine broke because its continuous operation loosened the
screws keeping the motor together, and a screw had jammed the
motor. Hernandez stated that the problem was a result of the
screws being too small and they could not sustain the amount of
torque required of them. Hernandez repaired the machine by
tightening the screws. As he was fixing the problem, his lead
arrived and Hernandez explained the situation to him. The lead
then assisted him in making the necessary repairs. Hernandez
estimated that it took the men about 20 to 30 minutes to fix the
problem. Hernandez was never interviewed by the Respondent
about his observations regarding the problem with the Tie-
Matic machine on July 4.
Part of Hernandez’ job was to prepare a report detailing any
repairs he made to machinery and the amount of time devoted
to the job. Hernandez testified that he prepared such a report
detailing his work on July 4 to Marquez’ Tie-Matic and gave it
to the lead. Counsel for the General Counsel subpoenaed this
report but the Respondent was unable to produce any repair
reports for the Tie-Matic.
D. Laytong’s Initial Investigation
Laytong testified that she was at home on July 4, when she
received a telephone call from Ahumada regarding Marquez
and the problem with his machine. Laytong instructed Ahu-
mada to suspend Marquez. Laytong subsequently began an
investigation into the incident. She testified that she reviewed
Marquez’ personnel file and did not find any recent reprimands
or disciplinary actions. She also interviewed Trevino and em-
ployee Susana Perez and typed their statements in English and
Spanish.
Perez’ statement reads in part:
Ramon has demonstrated throughout a . . . long period of time
not to have any patience. This 4th of July I saw that he was
pushing the Tie-Matic machine as though he . . . he wanted to
push it onto the floor or throw it onto the floor. This machine
is placed on a table. Ramon pushed the table. The machine
. . . did not completely tip over to the floor. It was sustained
by some pallets. Upon throwing . . . the table, the machine
became loose from the table and that is why I believed that
the screws broke.
Trevino’s statement given to Laytong reads in part:
I went to get my tools when I saw Ramon Marquez, who was
pushing the Tie-Matic. He pushed the machine. This ma-
chine is sustained or supported by a table and the table was
stopped by pallets. He was out of control. He was using bad
words, saying—he said to hell with this, this piece of shit
doesn't work.
E. Rolando Trevino’s Affidavit–Evidentiary Ruling
Trevino not only gave a statement to Laytong but he also
provided an affidavit to the Respondent during the investigation
of the unfair labor practice charges in this case. The following
discussion details my rulings and reasoning in regard to
Trevino’s affidavit when the Respondent attempted to introduce
it into evidence at the hearing.
On April 20, 2005, the hearing was adjourned sine die in or-
der to give counsel for the General Counsel time to obtain en-
forcement of Respondent’s subpoena ad testificandum served
upon Trevino. He had not appeared at the hearing as directed
by the subpoena.
The subpoena was duly enforced in Federal District Court
and Trevino was served with the court order and a copy of my
order setting the continued hearing for September 13, 2005.
Respondent’s counsel represented he was told by Trevino that
he was prepared to appear and testify at the hearing. The hear-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD348
ing, however, was postponed and rescheduled for November
30, 2005. Respondent’s counsel stated that an attempt to serve
Trevino by mail with a copy of the new hearing order was not
successful as the certified letter was returned noting that
Trevino had moved and left no forwarding address. The Re-
spondent next tried to personally serve Trevino at his last
known address. Respondent’s counsel further represented that
he was informed that Trevino no longer resided at that address
and that his new residence was unknown.
Trevino was not present at the November 30, 2005 resump-
tion of the hearing. Thus, the Respondent’s counsel offered into
evidence an affidavit apparently obtained from Trevino on July
31, 2002. Counsel for the General Counsel objected to the
offer as hearsay that did not meet any of the exceptions permit-
ted by Fed.R.Evid. 804(b). I sustained the objection and re-
jected the proffered exhibit. At the request of the Respondent’s
counsel the affidavit was placed in the rejected exhibit folder.
The Respondent in its post-hearing brief again argues that the
affidavit should have been received into evidence. I affirm my
ruling at trial and reject the receipt of Trevino’s affidavit.
As stated on the record, I ruled that Trevino was an “un-
available” witness under the terms of Fed.R.Evid. 804(a). That
rule provides in pertinent part:
Rule 804. Hearsay Exceptions; Declarant Unavailable
(a) Definition of unavailability.
“Unavailability as a witness” includes situations in which the
declarant—
(5) is absent from the hearing and the proponent of a state-
ment has been unable to procure the declarant’s attendance
. . . by process or other reasonable means.
The Respondent argues that since Trevino was declared an
unavailable witness that his affidavit should then be received
into evidence under the exception enumerated in Fed.R.Evid.
804(b)(1). That exception states:
(b) Hearsay exceptions.
The following are not excluded by the hearsay rule if the de-
clarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at an-
other hearing of the same or a different proceeding, or in a
deposition taken in compliance with law in the course of the
same or another proceeding, if the party against whom the tes-
timony is now offered, or, in a civil action or proceeding, a
predecessor in interest, had an opportunity and similar motive
to develop the testimony by direct, cross, or redirect examina-
tion. [Emphasis added.]
I found that while Trevino was unavailable his affidavit did
not meet the definition of former testimony because the General
Counsel was not present and did not have an opportunity to
develop the testimony by direct, cross, or redirect examination.
Trevino’s statement was not the result of testimony given in
any formal proceeding nor was it obtained in a deposition. A
key requirement for the former testimony exception is that the
party against whom the evidence is now offered must have had
a reasonable opportunity to cross-examine the declarant at the
time of the former testimony. While the Respondent argues that
the General Counsel was given a copy of the affidavit during
the course of the investigation this does not substitute for the
opportunity to develop, in a hearing or deposition, the witness’
first-hand knowledge, opportunity to observe, motive for telling
the truth, competency, bias, prejudice, admissions, etc. that
form the underpinnings of cross-examination. I, therefore, af-
firm my ruling at hearing that the affidavit is not admissible
under the exception stated in Fed.R.Evid. 804(b)(1).3
The Respondent’s brief repeats its argument made at trial
that because the affidavit was not allowed under the exceptions
in Fed.R.Evid. 804(b)(1) then it should be received under “Sec-
tion 805 of the Rules of Evidence.” I took counsel to mean
Fed.R.Evid. 807, which was formerly Rule 805, and likewise
rejected the offer under that rule. Fed.R.Evid. 807, known as
the “residual exception,” is a catch all permitting the admission
of hearsay evidence if it is otherwise deemed as having equiva-
lent circumstantial guarantees of trustworthiness to the enumer-
ated hearsay exceptions found in Rules 803 or 804. To qualify
for the residual exception the offered evidence must, among
other requirements, be shown to meet the standard that “the
general purposes of these rules and the interests of justice will
best be served by admission of the statement into evidence.” In
the present case the Respondent offers a hearsay affidavit taken
from a witness who was unwilling to appear at hearing pursuant
to a subpoena. That affidavit is offered for the truth of the mat-
ter asserted on a key point—Marquez’ disputed handling of his
Tie-Matic on the day in question. I find that the affidavit does
not serve the interests of justice, does not provide sufficient
guarantees of trustworthiness and does not possess sufficient
probative weight or value to assist me, as the trier of fact, in
accurately deciding what occurred. I, therefore, affirm my rul-
ing that Trevino’s affidavit is not admissible under the residual
exception stated in Fed.R.Evid. 807.
F. Additional Investigation
Laytong’s investigation also included a July 4 e-mail she re-
ceived from Corn Department Supervisor German Ahumada.
The e-mail detailed what Trevino had reported regarding the
incident involving Marquez. The e-mail states that Trevino had
observed Marquez being upset and hitting and pushing the ma-
chine. Ahumada’s e-mail also notes that he left a written state-
ment on Laytong’s notebook that had been prepared by Jose
Sarabia who also witnessed at least part of what happened.
Sarabia’s statement relates that Marquez pushed the broken
Tie-Matic to the side and he then pulled in a working Tie-
Matic. Sarabia saw that as Marquez pushed the broken Tie-
Matic, its table hit a wooden pallet.

3 The Respondent argues in its brief that Trevino’s affidavit is the
“functional equivalent of in-court testimony.” In support of that asser-
tion the Respondent cites U.S. v. White, 502 U.S. 346 (1992). I find
White to be inapposite authority for the cited proposition because in
that case the Supreme Court held that the prosecution was not required
to produce the 4-year-old victim of a sexual assault at trial or to have
the trial court find that the victim was unavailable for testimony before
the out-of-court statements of the child could be admitted under the
spontaneous declaration and medical examination exceptions to the
hearsay rule.
MISSION FOODS 349
Laytong did not interview Sarabia or Munoz as part of her
investigation. It is not clear from the record that Laytong was
aware that Munoz may have witnessed the incident. Laytong at
first testified that Sarabia was not mentioned as a witness but
when shown Ahumada’s e-mail mentioning that Sarabia’s
statement had been left for her, Laytong testified that somehow
she had not paid any attention to the statement.
Laytong also received a July 8 e-mail from Production Man-
ager, Santiago Armstrong concerning an interview with
Marquez. Armstrong’s e-mail states that he concluded based on
the interview that Marquez had used his machine as a push tool
to move an empty pallet, which was an unsafe act, and that
Marquez should have moved the pallet by lifting it or using a
pallet jack.
Laytong testified that she also received a note from Mainte-
nance Supervisor Celio Rodriguez that detailed a variety of
repairs done to “the” Tie-Matic machine. This note is undated
and it is unclear what specific Tie-Matic machine is the subject
of the report. The record shows that there were two manual
tying machines that were attached to tables. The one that
Marquez was having problems with was attached to a table.
Rodriguez’ note states that the repair he was commenting on
took 3.5 man hours to complete and involved replacing and
custom fitting screws, including drilling out screws, repairing
and replacing arms, replacing damaged guide covers, followers
and stop cover, and straightening, aligning and balancing the
machine stand. Rodriguez’ report does not state who did the
repair, and how Rodriguez concluded that the machine had
been damaged by “abusive treatment.” If this account of repair
refers to Marquez’ machine and the events of July 4 it is at odds
with the description of repairs made by Hernandez on that date.
Celio Rodriquez was not presented as a witness by the Respon-
dent. I, therefore, do not find that the memo is evidence suffi-
cient to support Respondent’s adverse action against Marquez.
Laytong relied on the various interviews and reports she had
received concerning Marquez’ conduct on July 4 and deter-
mined that he should be discharged for damaging company
equipment. Laytong then called Respondent’s Texas home
office and conferred with Rosa Flores, the director of human
resources and Jim Needles, vice president of human resources.
She informed them of her discharge recommendation and they
both concurred.
On July 9 Laytong talked to Marquez and informed him that
he was being discharged. Marquez, as he had done when inter-
viewed previously, denied having damaged the machine. Lay-
tong also sent Marquez a letter dated July 9, 2002, stating that
he was being discharged because he had violated Respondent’s
rules of conduct, rule 3 (gross negligence in the use of company
equipment) and rule 8 (sabotage of, or intentional damage to,
company equipment).
G. Analysis of Marquez’ Suspension and Termination
The General Counsel contends that the Respondent sus-
pended and discharged Marquez because he had engaged in
union activities and that his discharge was based on pretext in
order to conceal that motive. The Respondent defends its ac-
tions as being the result of Marquez’ misconduct concerning
company equipment and that this was the sole reason for his
termination.
It is well settled that an employer violates the Act by taking
an adverse employment action in order to discourage union
activity. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir.1981); see also NLRB v. Transportation Man-
agement Corp., 462 U.S. 393, 401–404 (1983) (approving the
Wright Line test). Under a Wright Line analysis the General
Counsel has the initial burden of establishing that union activity
was a motivating factor in the adverse employment action al-
leged to constitute discrimination in violation of Section
8(a)(3). The elements commonly required to support such a
showing of discriminatory motivation are union activity, em-
ployer knowledge, timing, and employer animus. Once the
General Counsel has established a prima facie case, the burden
shifts back to the employer to prove its affirmative defense that
the alleged discriminatory conduct would have taken place
even in the absence of protected activity. Wright Line, supra.
See Manno Electric, 321 NLRB 278, 280 fn. 12 (1996); Wil-
lamette Industries, 341 NLRB 560, 562 (2004). The ultimate
burden remains, however, with the General Counsel. Framan
Mechanical Inc., 343 NLRB 408, 412 (2004) (citing Wright
Line, 251 NLRB at 1088 fn. 11).
The Wright Line test applies regardless of whether the case
involves pretextual reasons or dual motivation. Frank Black
Mechanical Services, 271 NLRB 1302 fn. 2 (1984). “A finding
of pretext necessarily means that the reasons advanced by the
employer either did not exist or were not in fact relied on,
thereby leaving intact the inference of wrongful motive estab-
lished by the General Counsel.” Limestone Apparel Corp., 255
NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). It is the
General Counsel’s burden to show that the Respondent’s stated
reason for the adverse action was pretextual, see New York
Telephone, 300 NLRB 894 (1990), enfd. mem. sub nom. Fouhy
v. NLRB, 940 F.2d 648 (2d Cir. 1991).
There is no dispute that Marquez did engage in union activ-
ity and that he suffered an adverse action by his suspension and
termination from employment. The Parties differ greatly, how-
ever, as to whether Marquez’ suspension and discharge were
fair treatment for his conduct on July 4. The focus of my analy-
sis must be, not the fairness of Marquez’ discipline, but
whether there was a motivational link between his union activi-
ties and his discharge. Based on the record as a whole, I con-
clude that such a connection has not been established by a pre-
ponderance of the evidence.
Laytong’s investigation was the subject of severe attack by
the General Counsel. Of particular controversy was Laytong’s
failure to speak to all potential witnesses and her conclusion
that Marquez was responsible for some purposeful damage to
the machine. The comprehensiveness and fairness of an em-
ployer’s adverse action investigation is a legitimate subject for
scrutiny in an unfair labor practice proceeding. E.g., Burger
King Corp., 279 NLRB 227, 239 (1986) (Board has considered
an employer’s failure to conduct a fair investigation and to give
employees the opportunity to explain their actions before im-
posing disciplinary action to be significant factors in findings of
discriminatory motivation.) I have taken this issue into serious
consideration in reaching my decision on the matter. Laytong’s
investigation was not exhaustive but neither was it shown to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD350
have been irrational or its conclusions meritless. She got the
initial report of the Marquez incident in a telephone call to her
residence on a holiday. Marquez’ reported conduct was trou-
bling enough to Laytong so as to cause her to immediately sus-
pend him pending investigation. On her return to work, Lay-
tong promptly conducted her investigation. She received re-
ports from multiple sources that suggested varying degrees of
misconduct by Marquez. Laytong chose to rely on these reports
in making her recommendation for termination. While the se-
verity of Marquez’ conduct is in much dispute, it is not dis-
puted that he pushed his machine and it ultimately needed re-
pair in order to again function. It is impossible for me to deter-
mine the underlying cause for the needed repairs or whether
Marquez’ actions exacerbated the machine’s problems. What I
do conclude, however, is that while Laytong’s investigation
was less than perfect, it was not indefensible under all the cir-
cumstances. Merillat Industries, 307 NLRB 1301, 1303
(1992). (A respondent must establish its Wright Line defense
only by a preponderance of evidence. The respondent's defense
does not fail simply because not all of the evidence supports it,
or even because some evidence tends to negate it.) I find that
the investigation has not been shown to have been so deficient
as to form the basis for inferring the reasons given for adverse
action against Marquez were a pretext. I conclude that Laytong
had a reasonable belief that Marquez abused his machine and
that she acted on that belief in recommending the adverse ac-
tion against him.
The next consideration is the Respondent’s knowledge of
Marquez’ union activities and what, if any, part that played in
his discharge. The Respondent had some knowledge of
Marquez’ union activities. Thus Tomayo was cognizant of his
union activities and admittedly passed this information to
higher management during the election campaign. It is also
noted, however, that the uncontroverted evidence shows that
Tamayo played no part in the termination of Marquez.
Laytong recommended Marquez’ termination. Counsel for
the General Counsel concedes that there is no direct evidence
that Laytong had knowledge of Marquez’ union activities. It is
argued, however, that because others in management admit-
tedly knew of his activities, particularly around the time of the
election, that I should infer that Laytong possessed such knowl-
edge. Sears, Roebuck & Co., 337 NLRB 443, 450 (2002)
(knowledge of union activity can be established by circumstan-
tial evidence or inferred from the circumstances which, taken
together, show that an employer had knowledge of the activi-
ties.) The record as a whole does not convince me that such an
inference is justified. Laytong was not employed by the Re-
spondent until April 22, 2002, some 8 months after the election.
She testified that she was unaware of the union activity at the
plant until charges were filed subsequent to her hiring. Laytong
credibly denied any knowledge of Marquez’ union activities.
She no longer works for the Respondent and appeared to be an
honest witness who responded to questions to the best of her
recollection. While she was uncertain of some details concern-
ing Marquez’ discharge, I found her uncertainty to be genuine,
not designed to veil the facts and not surprising as she was
attempting to recall events that were 3-1/2 years remote to her
testimony. In sum, I found Laytong to be a persuasive witness
and I credit her testimony that she had no knowledge of
Marquez’ union activities at the time she recommended his
discharge to her superiors. I conclude, therefore, that the Gen-
eral Counsel has not shown that the person who recommended
Marquez’ discharge had knowledge that he had engaged in
union activities.
The General Counsel argues that Needles was admittedly
aware that Marquez’ brother was a union activist and, therefore,
it is reasonable to infer that he had knowledge or belief that
Marquez was a union supporter. Needles denied that he had
such knowledge or belief. The argument continues that Needles
had final authority over Marquez’ discharge and could have
prevented it from happening. This argument misses the point
that he was not shown to have any part in the matter until after
Laytong had suspended Marquez, investigated and made her
recommendation. Even assuming knowledge on the part of
Needles that Marquez was a union supporter, I find the record
does not show that Needles’ approval of the discharge recom-
mendation was motivated by antiunion animus directed at
Marquez or that there was evidence of an overriding reason
why he should have reversed Laytong’s recommendation for
firing Marquez.
Another element necessary to the General Counsel’s prima
facie case is timing. Marquez was shown to be active on behalf
of the Union at the time of the election. The record does not
show with specificity what, if any, union activities he may have
pursued in proximity to the time of his discharge. While the
discharge was some months following the election this is only
one consideration in determining if the General Counsel has
made the required Wright Line showing. I do not find, there-
fore, the timing between Marquez’ union activities and his
discharge as being dispositive of the matter. See Flannery Mo-
tors, 321 NLRB 931 (1996) (lapse of time between protected
activity and discharges was insufficient to overcome other evi-
dence of antiunion motive), enfd. mem. 129 F.3d 1263 (6th Cir.
1997).
In examining the element of animus the record shows that
the Respondent has unlawfully refused to bargain with the Un-
ion, made unilateral changes in employees’ wages, hours, and
working conditions and maintained certain unlawful employee
handbook rules. West Michigan Plumbing & Heating, Inc., 333
NLRB 418 fn. 2 (2001) (employee handbook which violated
Sec. 8(a)(1) evidences antiunion animus); U.S. Marine Corp.,
293 NLRB 669, 671 (1989), enfd. 944 F.2d 1305 (7th Cir.
1991), cert. denied 503 U.S. 936 (1992) (animus established, in
part, by numerous 8(a)(5) violations). Thus, there has been
sufficient evidence presented of general animus in regard to the
Union. K. W. Electric, Inc., 342 NLRB 1231 (2004). There is,
however, no credible evidence that the Respondent took
Marquez’ union activity into consideration in either suspending
him or terminating his employment. Laytong, the person pri-
marily responsible for the adverse action against Marquez, has
been found to have had no knowledge of his union activity.
There is no evidence that her superiors had anything to do with
her decision to suspend Marquez on July 4 or that she was in
anyway influenced by Marquez’ union activities in making the
recommendation that he be fired. Even if it is assumed that
Laytong’s superiors had knowledge of Marquez’ union sympa-
MISSION FOODS 351
thies, there is insufficient evidence that this was the motivation
for their approval of his discharge.
After a full review of the record and the Parties’ briefs I find
that the General Counsel has not proven its required prima facie
showing that the motivation for the adverse action against
Ramon Marquez was because of his union activities. I further
find that, even assuming such a prima facie showing was found,
that the Respondent has demonstrated that Ramon Marquez
would have been suspended and discharged regardless of his
union activities. I conclude, therefore, that the preponderance of
the evidence does not establish that the suspension and dis-
charge of Ramon Marquez in July 2002 were violations of Sec-
tion 8(a)(1) and (3) of the Act. Wright Line, supra.
CONCLUSIONS OF LAW
1. The Respondent, Gruma Corporation d/b/a Mission Foods,
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. United Food and Commercial Workers International Un-
ion Local 99, CLC is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) and (5) of the
Act.
4. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent has not violated the Act except as herein
specified.
[Recommended Order omitted from publication.]