Portola Packaging, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 13, 2012

28-CA-067274 (N.L.R.B. Sep. 13, 2012)

JD(SF)-45-12
Tolleson, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
PORTOLA PACKAGING, INC.
and Case 28-CA-067274
MARTA MAGALLON CORONA, an Individual
and Case 28-CA-067345
JORGE GARCIA, an Individual
and Case 28-CA-070621
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL NO. 99
PORTOLA PACKAGING, INC.
Employer
and Case 28-RC-067973
UNITED FOOD AND COMMERCIAL
WORKERS UNION, LOCAL NO. 99
Petitioner
Sandra L. Lyons, Esq., Phoenix, AZ, for
the General Counsel.
Elizabeth Q. Hinckle, Esq., San Francisco,
CA, for the Union/Petitioner.
Frederick C. Miner, Esq., and Sara Silvester,
Esq., Phoenix, AZ, for the Respondent/Employer.
DECISION
Statement of the Case
GREGORY Z. MEYERSON, Administrative Law Judge. Pursuant to notice, I heard
this case in Phoenix, Arizona on March 20-22 and April 26-27, 2012. This case was tried
following the issuance of an Order Consolidating Cases, Consolidated Complaint and Notice of
Hearing (the complaint) by the Regional Director for Region 28 of the National Labor Relations
Board (the Board) on January 31, 2012. The complaint was based on a number of unfair labor
practice charges, as captioned above, filed respectively, in Case 28-CA-067274 by Marta
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Magallon Corona (Magallon), an individual, in Case 28-CA-067345 by Jorge Garcia, an
individual, and in Case 28-CA-070621 by United Food and Commercial Workers Union, Local
No. 99 (the Union or the Petitioner), and hereafter referred to collectively as the Charging
Parties. The complaint alleges that Portola Packaging, Inc., (the Respondent, the Employer, or
Portola) violated Section 8(a)(1) of the National Labor Relations Act (the Act). The Respondent
filed a timely answer to the complaint denying the commission of the alleged unfair labor
practices.1
Pursuant to a representation petition filed by the Petitioner in Case 28-RC-067973 and a
Stipulated Election Agreement thereafter executed by the parties and approved by the Regional
Director on November 7, 2011, an election by secret ballot was conducted on December 1,
20112 among a unit of the Employer’s employees. Following the election, the Region served a
Tally of Ballots upon the parties, which showed that of approximately 44 eligible voters, 41 cast
ballots, of which 19 were cast for the Petitioner and 19 were cast against the Petitioner. There
were 3 challenged ballots, a number sufficient to affect the results of the election.
On December 8, 2011, the Petitioner filed timely objections to conduct affecting the
results of the election. On January 26, 2012, the Regional Director issued an Order Directing
Hearing on Challenged Ballots and Objections and Notice of Hearing. In his Order, the
Regional Director found that both the challenged ballots and objections raised substantial and
material issues of fact and credibility, which could best be resolved at a hearing. Further, on
February 15, 2012, the Regional Director issued an Order Consolidating Cases and Notice of
Hearing in which he found that common issues exist in Case 28-RC-067973, and Cases 28-CA-
067274, 28-CA-067345, and 28-CA-070621. He therefore ordered that all these matters be
consolidated for purposes of hearing, ruling, and decision, by an administrative law judge.
Accordingly, I heard the issues relating to the objections and challenged ballots at the same
time as I heard the unfair labor practice allegations in this combined matter.
All parties appeared at the hearing, and I provided them with the full opportunity to
participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to
argue orally and file briefs. Based on the record, my consideration of the briefs filed by counsel
for the General Counsel, counsel for the Respondent, and counsel for the Union, and my
observation of the demeanor of the witnesses,3 I now make the following findings of fact and
conclusions of law.
FINDINGS OF FACT
I. Jurisdiction
The complaint alleges, the answer admits, and I find that at all times material herein, the

1 All pleadings reflect the complaint and answer as those documents were finally amended
at the hearing. (See Motion to Amend Complaint (G.C. Ex. 2.) and Second Motion to Amend
Complaint (G.C. Ex. 26.))
2 All dates refer to 2011 unless otherwise indicated.
3 The credibility resolutions made in this decision are based on a review of the testimonial
record and exhibits, with consideration given for reasonable probability and the demeanor of the
witnesses. See NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). Where
witnesses have testified in contradiction to the findings herein, I have discredited their
testimony, as either being in conflict with credited documentary or testimonial evidence, or
because it was inherently incredible and unworthy of belief.
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Respondent has been a Delaware corporation, with an office and place of business in Tolleson,
Arizona (the Tolleson facility), where it has been engaged in the business of manufacturing
plastic closures and containers for food and beverage products. Further, I find that during the
12-month period ending October 21, 2011, the Respondent, in conducting its business
operations as just described, purchased and received at its Tolleson facility goods valued in
excess of $50,000 directly from points located outside the State of Arizona.
Accordingly, I conclude that the Respondent is now, and at all times material herein has
been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. Labor Organization
The complaint alleges, the answer admits, and I find that at all times material herein, the
Union has been a labor organization within the meaning of Section 2(5) of the Act.
III. Alleged Unfair Labor Practices and Alleged Objectionable Conduct
A. Background Facts
The Respondent is an international company with world-wide operations. It is based in
Naperville, Illinois, and has eight facilities in North America, including the Tolleson, Arizona
facility, which is the only facility involved in these proceedings. At that facility the Respondent
manufactures plastic closures, more commonly referred to as bottle caps, and related items for
a variety of beverages and food products, such as juice and milk. The Tolleson facility has been
in operation for approximately eight years. It operates 24 hours a day, seven days a week, with
three separate work shifts. There are approximately 91 employees employed at the facility,
working in approximately 27 different job classifications.
The bottle caps are manufactured using “injection-mold” technology. There are
approximately 39 injection-mold machines, or presses, in operation at the facility, with related
support or ancillary machines, such as label printing and foam insulation, also in operation. The
manufacturing process can be summarized as follows: plastic pellets, also known as resin, are
melted into a fluid, liquid state, which is then injected into a cavity in a steel mold, allowed to
cool, and then ejected into a finished cap. On a busy shift, as many as 20-25 presses may be
operating at any one time.
The highest ranking official at the Tolleson plant is Tim Tyler, general manager. A
number of managers work at the plant under the direction of Tyler, including Chris McClanahan,
human resources and safety manager, Paul Rose, maintenance manager, Tim DeCrow,
production manager, Ray Buchanan, production supervisor, and Fabian Franco, production
supervisor. All the named individuals are supervisors as defined by the Act.
For purposes of analyzing the alleged unfair labor practices, objections, and challenged
ballots, it is necessary preliminarily to understand the work performed by certain of the
Employer’s job classifications and the way in which those employees interact with each other.
The largest group of employees employed at the facility is the “production team,” numbering 36.
While various managers testified that the Respondent does not have any group of employees
referred to as “operators,” the individual production team members who testified indicated that
they frequently refer to themselves as operators.
During each shift, there are a certain number of presses in operation. One production
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team member is assigned to monitor each press during a shift. Besides monitoring the
production from the presses, production team members pack the caps into boxes as the caps
come off a conveyor belt from the presses. They seal the boxes, label them, and take the
boxes to a central conveyor, which transports them to a staging area. “Production team leads”
work alongside the production team members, relieving the team members when they go on
breaks. The team leads assist the “production supervisors” who are responsible for the output
from the presses. The production team members and the team leads report directly to the
production supervisors.
“Staging team members” receive boxes of caps from the production team members, and
sort the boxes on individual pallets according to the customer and product. They then move the
loaded pallets from the staging area to the warehouse. Staging team members report to the
production supervisors.
At the time of the election there were three employees classified as “process
technicians,” Thomas Turner, Michael Burns, and Gabriel Hernandez. These were the three
employees whose ballots were challenged by the Union during the election. The process
technicians are primarily responsible for programming into control panels on the presses the
various computerized settings, such as temperature, pressure, and speed, which affect the
production of the various machines. They also provide a daily report on the performance of the
molds, specifically the percentage of individual cavities within each mold that are functioning
properly. It is the steel molds on the presses that contain cavities into which the plastic is
injected. The process technicians are not assigned to a specific press, but, rather, they
circulate around the production floor trouble shooting the presses. Sometimes the process
technicians are required to open up the presses to inspect the cavities and, if necessary, block
off cavities that are not functioning properly. While various witnesses testified differently, the
evidence indicates that the process technicians spend between 40% and 70% of their working
time on the production floor, with the remainder of their time spent in various locations and
offices preparing reports on laptop computers. The process technicians do not report to the
production supervisors, but instead report directly to production manager Tim DeCrow.
“Maintenance technicians” are responsible for performing machine repair and preventive
maintenance using mechanical, electrical, and pneumatic tools. They troubleshoot and repair
faulty equipment and perform preventive maintenance tasks on machines, including presses,
ancillary equipment, and machines supporting the plant’s infrastructure. As of the date of the
election, there were seven maintenance technicians employed at the facility, one of whom was
Jorge Garcia. Maintenance technicians are not directly involved in the production process and
do not perform production tasks.4 Some of the maintenance technicians work on “GO Teams,”
with the “GO” standing for “get organized.” This involves a “reliability centered maintenance”
system where similar equipment is assigned to a specialized team familiar with that equipment.5
While production manager DeCrow directly supervises all Go Team members, including

4 The bargaining unit as set forth in the Stipulated Election Agreement excluded, among
other employees, the “maintenance mechanics.” While at the hearing the parties did not
specifically stipulate that maintenance mechanics and maintenance technicians are the same
group of employees, it appears from the record that such is the case, and, in any event, no party
is contending that maintenance technicians should be included in the appropriate bargaining
unit.
5 Some production team members and some process technicians are assigned to Go
Teams, while other production team members and process technicians are specifically assigned
to work on a given shift, rather than on a Go Team.
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maintenance technicians, maintenance manager Rose also is responsible for the hiring,
training, and discipline of the maintenance technicians on the Go Teams. For those
maintenance technicians not assigned to Go Teams, Rose is their immediate supervisor.
B. Protected Concerted Activity
Section 7 of the Act guarantees employees “the right to self-organization, to form, join, or
assist labor organizations…and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection….” Employees are engaged in protected
concerted activities when they act in concert with other employees to improve their working
conditions. Eastex, Inc. v. NLRB, 437 U.S. 556 (1987); NLRB v. Washington Aluminum Co.,
370 U.S. 9, 14 (1962). An employer may not retaliate against an employee for exercising the
right to engage in protected concerted activity. Triangle Electric Co., 335 NLRB 1037, 1038
(2001); Meyers Industries, 268 NLRB 493, 479 (1984). An employer violates Section 8(a)(1) of
the Act when it discharges an employee, or takes some other adverse employment action
against him, for engaging in protected concerted activity. Rinke Pontiac Co., 216 NLRB 239,
241, 242 (1975). Further, the Board has found that an employer violates the Act when threats
of an “unspecified reprisal” are made because employees engage in union activity. Certainly,
by analogy, the same would apply to protected concerted activity. Cf. Atlas Logistics Group
Retail Services (Phoenix), 357 NLRB No. 37, slip op. at 1, fn. 2 (Aug. 5, 2011); St. Margaret
Mercy Healthcare Centers, 350 NLRB 203, 205 (2007).
The Board, with court approval, has construed the term “concerted activities” to include
“those circumstances where individual employees seek to initiate or induce or to prepare for
group action, as well as individual employees bringing truly group complaints to the attention of
management.” Meyers Industries, Inc., 281 NLRB 882 (1986), affirmed 835 F.2d 1481 (D.C.
Cir. 1987), cert. denied 487 U.S. 1205 (1988); See also NLRB v. City Disposal Systems, Inc.,
465 U.S. 822, 831 (1984) (affirming the Board’s power to protect certain individual activities and
citing as an example “the lone employee” who “intends to induce group activity”).
In her post-hearing brief, counsel for the General Counsel begins her discussion of the
employees’ alleged protected concerted activity by talking about employee Jorge Garcia. As
noted above, Garcia was a maintenance technician. At the time of the hearing, Garcia had
been employed by the Respondent for 24 years, having moved with the Employer when it
closed a plant in California and opened the Tolleson facility. Initially Garcia was assigned to
work a specific shift at the plant. However, in August of 2011, he was asked to become a
member of a Go Team, which he agreed to do as the hours of work suited him better. At the
time he testified, Garcia was assigned to the 5-Gallon Go Team, which was responsible for the
manufacture of 5-Gallon lids.
According to the testimony of production manager Tim DeCrow, in the spring of 2011,
the maintenance technicians began training on a computer program known as the Enterprise
Asset Management (EAM) System. This system is designed to keep track of all the hours
worked by the maintenance technicians, showing how their time was spent, and also to keep a
record of the various parts utilized by the maintenance technicians in the course of repairing
machinery. The person responsible for training the maintenance technicians on the EAM
System was maintenance manager Paul Rose. He testified that a number of training sessions
were given to the maintenance technicians, including Jorge Garcia. However, even after the
training only about one third of the maintenance technicians were reporting the seven out of
eight hours of labor that the Respondent was demanding, and/or were failing to list the parts
that they used in making repairs.
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Garcia testified that because he was having difficulty leaning to use the EAM System,
that Rose required him to sign a document entitled “EAM Training Acknowledgement Form.”
The document was dated May 6, 2011. It lists certain “Specific Expectations” of the employee,
those requirements being the reporting of at least seven out of eight hours worked and listing
those parts used while repairing machinery. The document stressed the importance of these
reporting requirements, and the last sentence read as follows: “Any failure to meet the specific
expectations outlined above will follow PPI’s employee performance disciplinary procedures up
to and including termination.” (G.C. Ex. 16.) According to Garcia, Rose never informed him that
this document constituted a verbal reprimand, and the first step in the Respondent’s progressive
disciplinary process. Apparently Rose required that the other maintenance technicians who
were not satisfying the EAM reporting requirements also sign this form, as Counsel for the
General Counsel does not contend that the mere signing of this form constituted disparate
treatment towards Garcia.
As he signed the form, Garcia added certain comments at the bottom. (G.C. Ex. 16.)
Garcia’s handwriting is difficult to read, but when he testified Garcia read out loud what he had
written as follows: “We need a lot more training with the system EAM. A lot of the equipment
don’t [sic] have the location and it is hard to find it in the system. Also, the supervisors need to
make the work orders so when we can’t close after work is done.” Garcia testified that he and
the other maintenance technicians were not proficient on the computer and needed more
training in the system. According to Garcia, reporting into the EAM system was taking a lot of
time, it was hard to find parts listed in the computer, and supervisors needed to input certain
information into the system first, in order to save the maintenance technicians’ time. However, it
is important to note that while Garcia contends that his concerns were shared by other
maintenance technicians, there is no evidence that Garcia spoke with fellow employees about
these specific complaints.
Garcia did testify that in mid-May he discussed with coworkers other issues that they
were facing at work. He mentioned talking with “operators” and maintenance technicians, and
named a number of individuals. He testified that these conversations were held daily in the
lunch room during break time. However, when pressed by counsel for the General Counsel to
specify the subjects that were discussed, Garcia was only able to recall the “operators”
complaining that they had too many machines for which they were responsible, and so they
were being over worked, and complaints about production supervisor Ray Buchanan being
unresponsive to their concerns.
Marta Magallon Corona (Magallon), a production team member, who indicated that her
job position was that of “machine operator,” testified that in May of 2011, in the plant dining
room and parking lot, she had conversations with fellow employees about work concerns that
they were having. She then listed a number of employees with whom she had conversations
about being over worked because there were fewer employees available to operate more
machines, and about mistreatment from supervisor Ray Buchanan. It appears that these were
the same complaints that Garcia testified he had discussed during the same time period with
fellow employees.
Another production team member, Evangelina Villegas, who indicated that her job
position was that of “operator,” also testified about work related concerns that she discussed
with fellow employees in May 2011. According to Villegas, they discussed “being treated badly”
by supervisor Ray Buchanan, who would “yell” at them, and about being over worked. She
mentioned talking with some of the same employees who were mentioned by Magallon and
Garcia.
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According to Garcia, in May 2011 he brought the complaints of the production team
members to the attention of production manager Tim DeCrow. Garcia testified that he told
DeCrow that “the operators, they were saying they have too much work and [it’s] hard for them
to handle.” In response, DeCrow allegedly said that he was “tired of hear[ing] the operators cry,
wah, wah, wah.” Garcia testified that he understood DeCrow to mean that the operators were
whining about being over worked.
It is important to note that Garcia testified in English. He is bilingual, with Spanish being
his first and best language. Garcia testified, and it is undisputed, that because of his bilingual
ability, the Employer’s Spanish speaking employees, of whom there are a large number, have
frequently used him as an interpreter in their conversations with the Employer’s English
speaking supervisors. Marta Magallon Corona is one such employee.
Magallon testified that periodically she was asked to act as a “relief team lead,” when the
regular team leads were absent, especially on the weekends. She was unhappy performing
these duties as she believed she had not been adequately trained for the job, it was too much
responsibility, especially on the weekends when the supervisors were not scheduled to work,
and because she was inadequately compensated for performing the work. In mid-May she had
approached her supervisor, Ray Buchanan, about her concerns, but he had not responded
positively. About two weeks later, Magallon asked Garcia to interpret for her as she tried again
to approach Buchanan regarding her concerns.
The testimony of Garcia and Magallon is essentially the same regarding the
conversation with Buchanan. As Buchanan did not testify regarding this conversation, the
testimony of Garcia and Magallon is unrebutted. During the conversation, Magallon spoke in
Spanish, Buchanan spoke in English, and Garcia acted as an interpreter. Magallon expressed
her reasons for no longer wanting to perform the duties of relief team lead. However, Buchanan
was unmoved, essentially informing her that he was the supervisor and that she must perform
the work assigned to her. At some point in the conversation, Buchanan apparently became
loud, and Garcia asked him why he was so angry, why he was yelling, and why he was treating
Magallon badly. Buchanan did not answer orally, but turned his back on the employees after
giving Garcia an aggressive stare. With that gesture, the meeting ended. In any event, it is
undisputed that Garcia kept his temper, never raised his voice, used profanity, or called
Buchanan names.
The following day, Buchanan called Magallon to a meeting in the conference room. Also
present were production manager Tim DeCrow and human resource manager Chris
McClanahan. Magallon spoke in Spanish and English, Buchanan and DeCrow in English, and
McClanahan, who is bilingual, interpreted when necessary. McClanahan informed Magallon
that they were going to talk about the previous day’s incident. During the conversation that
followed, Magallon and the managers discussed her objections to continuing to perform the
duties of the relief team lead. DeCrow tried to persuade Magallon to retain the position, telling
her that she was a smart, hard worker with a lot of potential. He reminded her that the
Respondent had invested a lot of time in her training and asked her to carefully consider the
decision. However, Magallon continued to insist that she did not want the additional work and
responsibility. Ultimately it was agreed that Magallon would continue to perform the job of relief
team lead only until a replacement could be trained.
This aspect of the meeting is not disputed. Testimony is at variance, however,
concerning two other alleged subjects of the conversation, namely employees’ interpreting for
each other, and employee discussions about wages and the meeting itself. According to
Magallon, McClanahan told her that Buchanan had said that Garcia had “disrespected” him the
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previous day. She was further told that for that reason, she was not allowed to use Garcia or
any other coworker as an interpreter. When she protested that employee interpreting was a
regular practice at the plant, one always permitted, she was informed that from now on none of
the employees could use coworkers as interpreters, and that in the future Chris McClanahan
would do all the interpreting between workers and supervisors.
Further, according to Magallon, when she complained about the payment that she
received for working as a relief team lead, she was told it was the same payment that other
employees received when they filled in as relief team leads.6 She disputed that contention,
claiming that she had spoken to fellow employees who had told her otherwise. Magallon
contends that at that point in the conversation McClanahan told her that she was not permitted
to talk about salaries with other employees or to see the salaries of other employees. Also,
McClanahan is alleged to have told her that anything discussed in the conference room meeting
needed to stay there, and Magallon was not permitted to talk with anyone outside the room
about the contents of the meeting.
The management witnesses denied that coworker interpreting was even a topic of
discussion at the meeting, or that there had been any mention of the previous day’s meeting
where Garcia had acted as an interpreter. Further, the Respondent contends that there is no
such prohibition, and that coworkers have continued to act as interpreters for Spanish speaking
employees when having discussions with English speaking supervisors.
DeCrow testified that when Magallon indicated that she had spoken with coworkers
about their salaries, he told her that he had been receiving complaints from other workers who
had been “shaken down” by her about their wages, and they felt uncomfortable with her
questions. He testified that he went on to tell Magallon that if an employee wanted to have a
conversation with her about his/her wages that it was fine for her to do so, but that if an
employee did not want to discuss wages with her, that she should not pursue the matter. All
three managers also testified that Magallon was not told that the meeting was confidential or
that she should not discuss its contents with coworkers.
1. Coworkers Act As Interpreters
The General Counsel alleges in complaint paragraph 5(b)(1), as amended in the Second
Motion to Amend Complaint (G.C. Ex. 26.), that in mid-May 2011, Chris McClanahan, Ray
Buchanan, and Tim DeCrow created more onerous working conditions for [Magallon] and other
employees by refusing to allow them to have their coworkers act as interpreters during
discussions with the Respondent. In addressing this issue it is necessary for the undersigned to
make certain credibility determinations as there are significant variances between the
testimonies of the three management officials on the one hand and Magallon on the other hand.
I simply do not believe that the managers did not bring up the events of the previous day
as they involved Buchanan and Garcia. From the credible testimony of Garcia and Magallon,
unrebutted by Buchanan, that supervisor had been visibly upset by the incident. It is inherently
plausible and reasonable to credit Magallon who testified that at the beginning of the meeting
McClanahan mentioned that Buchanan felt that Garcia had “disrespected” him the previous day.
Further, it is logical to conclude that the Respondent supported its supervisor, Buchanan, by

6 According to the Respondent, an employee who substitutes temporarily for an absent
higher paid employee is paid at the higher rate, but only for the period of time that the substitute
performs the work of the absent employee.
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McClanahan telling Magallon that because of Garcia’s disrespectful actions of the previous day,
that Garcia could no longer act as an interpreter for Magallon.
However, I do not credit Magallon’s further testimony that she was told that henceforth,
coworkers could no longer act as interpreters for fellow employees, and that only Chris
McClanahan would be able to interpret for Spanish speaking employees in conversations with
English speaking managers. I believe that Magallon was simply mistaken, magnifying the
Respondent’s position prohibiting her from using Garcia as an interpreter into a general
prohibition from using any coworker as an interpreter.
The Respondent takes the position that coworkers have continued to be used as
interpreters, and there appears to be unrebutted evidence to support this position. Tim DeCrow
testified that only one day before his appearance at the hearing, he held a production meeting
where a bilingual maintenance technician was used to interpret what a Spanish speaking
employee was saying. Further, employee Herlinda Cervantes testified that when she speaks
with Ray Buchanan or other managers that she sometimes uses fellow employee “Cecilia” to
interpret for her. Accordingly, I believe that counsel for the General Counsel has failed to prove
that the Respondent ever established a general rule prohibiting employees from using
coworkers as interpreters in conversations with English speaking managers, or that Magallon
was told any such thing.
However, as I have already stated, I do believe that Magallon was told by Chris
McClanahan that she could no longer use Garcia as an interpreter because he had
disrespected Buchanan the previous day when acting as an interpreter for Magallon. The
question remains whether this constitutes an unfair labor practice. I do not believe that it does.
Both Garcia and Magallon testified that Garcia was acting as an interpreter for Magallon
during her conversation with Buchanan. He was not acting as her advocate, witness, or even
supportive coworker. Even at the end of their conversation when Buchanan got mad and turned
his back on the employees and raised his voice, it was Magallon who was speaking her mind,
not Garcia. She testified that she “asked Mr. Garcia to ask him [Buchanan] why was he mad,
why was he turning his back on us.” Although there were further words exchanged, it is clear to
me that Garcia was merely acting as an interpreter, rather than going to see Buchanan because
he shared common concerns with Magallon. In fact, Magallon’s concerns had nothing to do
with Garcia. She was unhappy functioning as a relief team lead. Garcia was a maintenance
technician, not supervised by Buchanan, and with no work related connection to Magallon’s
complaints.
Counsel for the General Counsel has not cited any Board or court authority for the
proposition that when an employee acts as a translator or interpreter for another employee in a
conversation with management where only the employee who needs an interpreter has work
related complaints that those employees are engaged in protected concerted activity. I know of
no such authority.7 An interpreter really functions only as a recording and translating device,

7 I do not believe that the cases or law review article cited by counsel for the General
Counsel in her post-hearing brief support the General Counsel’s position that the conduct
engaged in by Garcia and Magallon constituted protected concerted activity. (Republic Aviation
Corp., 324 U.S. 793, 804-805 (1945); Beth Israel Hospital v. NLRB, 437 U.S. 483, 491 (1978);
Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001), quoting Jeannette Corp., 532 F.2d 916, 918
(3rd Cir. 1976); Weinstein, Lauren M., The Role of Labor Law in Challenging English-only
Policies, 47 Harvard Civil Rights-Civil Liberties Law Review 219 (2012)).
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intended merely to record the precise words of the speakers, and then to translate those precise
words into the language of the listeners. Such a person is not speaking his or her own mind,
but the translated words of the speaker.
I conclude that neither Magallon nor other employees were prohibited from using
coworkers as interpreters in conversations with management, but at most Garcia was prohibited
from functioning in that capacity.8 I see no credible probative evidence that such action was
taken because of any protected activity that Garcia may have engaged in, and I do not believe
that Garcia and Magallon were engaged in protected concerted activity when he interpreted for
her with Buchanan. Concomitantly, the Respondent was not creating “more onerous working
conditions” for employees because of their protected concerted activity. Accordingly, I shall
recommend to the Board that the allegation in paragraph 5(b)(1), as set forth in the Second
Motion to Amend the Complaint (G.C. Ex. 26.), be dismissed.
2. Rule Prohibiting Employees from Discussing Wages; and
3. Rule Prohibiting Employees from Discussing Meetings Held with Management
The General Counsel alleges in complaint paragraph 5(b)(2), as set forth in the Second
Motion to Amend the Complaint (G.C. Ex. 26), that in mid-May 2011 the Respondent through
McClanahan, Buchanan, and DeCrow orally promulgated an overly-broad and discriminatory
rule prohibiting employees from discussing their wages and those of other employees with each
other. Further, the General Counsel alleges in paragraph 5(b)(3), as set forth in the Second
Motion to Amend the Complaint, that at the same time the three managers orally promulgated
an overly-broad and discriminatory rule prohibiting employees from discussing with other
employees what occurred in meetings with management.
These allegations arises from the meeting between the three managers and Magallon
where they discussed her desire to no longer serve as a relief team lead. As was set forth
above, one of Magallon’s reasons for wanting to relinquish the position was her feeling that she
was not being adequately compensated for the extra work. It is undisputed that she expressed
this feeling to the managers, and also her belief that other employees who preformed such relief
duties received greater compensation. However, the witnesses disagree as to what was
discussed next.
According to Magallon, when she complained about the payment that she received for
working as a relief team lead, she was told it was the same payment that other employees
received when they filled in as relief team leads. She disputed that contention, claiming that she
had spoken to fellow employees who had told her otherwise. Magallon contends that at that
point McClanahan told her that she was not permitted to talk about salaries with other
employees or to see the salaries of other employees. Also, McClanahan is alleged to have told
her that anything discussed in the conference room meeting needed to stay there, and Magallon
was not permitted to talk with anyone outside the room about the contents of the meeting.
DeCrow testified that when Magallon indicated that she had spoken with coworkers
about their salaries, he told her that he had been receiving complaints from other workers who
had been “shaken down” by her about their wages, and they felt uncomfortable with her
questions. He testified that he went on to tell Magallon that if an employee wanted to have a

8 There is no contention or evidence that without Garcia there were insufficient bilingual
employees to act as interpreters.
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11
conversation with her about his/her wages that it was fine for her to do so, but that if an
employee did not want to discuss wages with her, that she should not pursue the matter.
McClanahan’s testimony was in conformity with that of DeCrow, with the addition that
McClanahan testified that Magallon had said that she understood and that she “wasn’t
badgering anybody or giving anyone a hard time.” All three managers also testified that
Magallon was not told that the meeting was confidential or that she should not discuss its
contents with coworkers.
Regarding the allegations that the managers told Magallon that she must not discuss
wages with other employees and that she must keep the contents of their meeting confidential, I
credit Magallon. As counsel for the General Counsel pointed out in her post-hearing brief, there
is a long line of Board cases standing for the proposition that the testimony of a current
employee, which is adverse to her employer, should be viewed favorably as opposed to the self
–interest testimony of a supervisor. This, of course, is nothing more than a rebuttable
presumption, which is subject to the facts in each situation. See Samaritan Medical Center, 319
NLRB 392, 396 fn. 12 (1995); Hi-Tec Cable Corp., 318 NLRB 280, 295 (1995), enf. granted in
part, denied in part, 128 F.3d 271 (5th Cir. 1997); Gold Standard Enterprises, 234 NLRB 618
(1978); D & H Mfg. Co., 239 NLRB 393, 396 (1978). However, in the case before me, I am
unaware of any reason to conclude that the presumption that Magallon, a current employee of
the Respondent, testified credibly has been rebutted.9
The collective testimony of the three managers regarding this matter simply does not
have the ring of authenticity to it. I doubt that in the course of scolding Magallon for talking
about wages with her fellow employees, DeCrow took the time to explain to her a distinction that
he was allegedly drawing between discussing wages with willing employees and pressuring
unwilling employees to disclose such information. Rather, this seems like something the
managers concocted after the charges were filed in an effort to make their admonition to
Magallon sound lawful.
Further, the Respondent furnished no specific information regarding DeCrow’s claim that
he had received complaints from employees who allegedly reported that Magallon was
pressuring them to give her their wage rates. Had such complaints actually been made,
DeCrow should have been in a position to testify as to the names of those complaining
employees, and the Respondent should have offered their testimony at trial. The Respondent’s
total failure to offer such evidence, which one would logically assume would be done if such
evidence existed, creates an adverse inference that such, in fact, does not exist.10 This
constitutes further evidence of the incredible nature of the managers’ testimony.
While DeCrow and McClanahan testified that DeCrow was the manager making the
statements in question to Magallon, it is of no particular importance which of the three managers
actually spoke the words. Magallon seemed to testify that McClanahan was speaking.
However, she may have been confused as to whose words these were, as McClanahan was
serving as the Spanish language interpreter and may only have been translating for DeCrow.
DeCrow, as production manager, was a higher ranking supervisor than McClanahan, who was

9 It is axiomatic that a witness may be found credible regarding one issue, while at the same
time found incredible regarding another issue.
10 See International Automated Machines, 285 NLRB 1122, 1122-23 (1987), enfd. 861 F.2d
720 (6th Cir. 1988) (“…when a party fails to call a witness who may reasonably be assumed to
be favorably disposed to the party, an adverse inference may be drawn regarding any factual
question on which the witness is likely to have knowledge.”)
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the human resources manager. But, in any event, it is immaterial whether it was McClanahan
or DeCrow speaking the words in question, as the Respondent is responsible for the unlawful
statements of its supervisors.
Having concluded that either DeCrow or McClanahan told Magallon that she was
prohibited from talking with other employee about their wages, I also find that they told her that
the matters being discussed at the meeting were to be kept confidential and not shared with
other employees. It is logical that such was the case as the supervisors’ admonition that
Magallon must keep these matters confidential was a natural extension of the prohibition
against talking with other employees about their wages. It naturally fits in the context of their
conversation. Having determined that these statements, as testified to by Magallon, were made
by the supervisors, I must also determine whether they constitute unfair labor practices. I find
that they do.
In determining whether the existence of specific work rules violate Section 8(a)(1) of the
Act, the Board has held that, “the appropriate inquiry is whether the rules would reasonably tend
to chill employees in the exercise of their Section 7 rights.” Lafayette Park Hotel, 326 NLRB
824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Further, where the rules are likely to have
a chilling effect on Section 7 rights, “the Board may conclude that their maintenance is an unfair
labor practice, even absent evidence of enforcement.” Id. See also, Blue Cross-Blue Shield of
Alabama, 225 NLRB 1217, 1220 (1976).
The Board has further refined the above standard in Lutheran Heritage Village-Livonia,
343 NLRB 646, 646 (2004), by creating a two-step inquiry for determining whether the
maintenance of a rule violates the Act. First, if the rule expressly restricts Section 7 activity, it is
clearly unlawful. If the rule does not, it will none-the-less violate the Act upon a showing that:
“(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.” Id., at 647; See Northwestern Land Services, Ltd., 352 NLRB
744 (2009) (applying the Board’s standard in Lutheran Heritage Village-Livonia, supra at 647).
It is basic horn book law that employees are engaged in lawful protected concerted
activity when they discuss among themselves issues relating to wages, hours, and working
conditions. An employer violates the Act when it attempts to prevent employees from engaging
in protected concerted activities by prohibiting employees from discussing matters such as
wage rates, or prohibits employees from discussing such matters as are raised at meetings with
management officials.
Through the actions of its supervisors in mid-May 2011, the Respondent was orally
promulgating a rule prohibiting Marta Magallon, and other employees, from discussing their
wage rates with each other; and was also orally promulgating a rule that served to prohibit
Magallon, and other employees, from discussing those matters that had just been raised by
management with Magallon. Said rules were overly-broad and discriminatory as on their face
they restrict the exercise of Section 7 rights. Further, those rules would undoubtedly have a
chilling effect on the willingness of employees to engage in Section 7 activity. Lutheran
Heritage Village-Livonia, supra.
Accordingly, I conclude that by the actions of its supervisors, the Respondent has
violated Section 8(a)(1) of the Act by orally promulgating overly-broad and discriminatory rules
prohibiting employees from discussing their wages with each other, and by prohibiting
employees from discussing with each other what occurred at meetings with supervisors, all as
alleged in paragraphs 5(b)(2) and (3), as set forth in the Second Motion to Amend Complaint.
JD(SF)-45-12
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4. Rule Prohibiting Employees from Meeting in Groups with Managers
The General Counsel alleges in complaint paragraph 5(c) that since April 21, 2011, the
Respondent, through Christopher McClanahan, has orally promulgated an overly-broad and
discriminatory rule prohibiting employees from presenting concerted complaints to him.
McClanahan, the safety and human resource manager, holds monthly safety meetings in the
plant for all employees. Each month a different safety topic is taken up during meetings
conducted on each shift. Past subjects have included fall protection, hazardous,
communications, and many others. McClanahan testified that at these meetings he encourages
employee feedback, and often will receive and answer questions on diverse subjects
concerning such matters as days off, vacations, workloads, and other work related subjects.
This testimony was not rebutted by other witnesses.
McClanahan further testified that at the end of these safety meetings he would typically
add that “if there is anybody that has a question or concern that they are embarrassed to bring
up in front of everyone else, feel free to come speak with me, my door is always open.” While
acknowledging that such a statement was made by McClanahan, employees Marta Magallon,
Evangelina Villegas, and Alicia Martinez testified that McClanahan also said that while his door
was always open to hear complaints, “that employees should come by themselves and not in
groups.” Allegedly, such statements by McClanahan, or similar statements that employees
should not come to see him in groups of 2 or 3, were made by him at safety meetings held in
May and June of 2011. However, employee Christina Solano attended such meetings and
denied hearing any statement from McClanahan limiting the number of employees who could
approach him with complaints.
I agree with counsel for the Respondent’s comment in his post-hearing brief that it would
be “inherently illogical” for McClanahan to solicit questions from employees at group meetings
regarding work related matters that he would not also be willing to entertain in his office when
approached by more than one employee. If McClanahan was willing to discuss employee
concerns in a group setting, why would he be reluctant to do so in his private office? It makes
no sense that he would have any such reservation.
It seems likely that employees Magallon, Villegas, and Martinez are simply mistaken or
confused about what McClanahan actually said. Perhaps they misunderstood McClanahan’s
statement that employees who were embarrassed to bring up matters in front of other
employees could come and speak with him in his office to mean that employees must come
alone to see him. In any event, I credit the testimony of McClanahan and Solano because it is
logical and inherently probable.
I conclude that McClanahan never said that employees could only come alone to see
him with complaints, and, thus, did not promulgate an overly-broad and discriminatory rule
prohibiting employees from presenting him with concerted complaints. Accordingly, I shall
recommend to the Board that complaint paragraph 5 (c) be dismissed.
5. Threats for Engaging in Protected Concerted Activity
It is alleged in complaint paragraphs 5(d)(1) and (2) that on about October 5, 2011, the
Respondent, through Tim DeCrow, threatened employees with discharge and/or with
unspecified reprisals for engaging in concerted activities. It is further alleged in complaint
paragraph 5(k) that on about October 4, 2011, the Respondent issued a written warning to
Jorge Garcia, and in paragraph 5(l) that on about October 5, 2011, the Respondent issued
JD(SF)-45-12
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Garcia another written warning. It is the General Counsel’s contention that all these actions
were taken against Garcia by the Respondent, through production manager Tim DeCrow, in the
course of a two day period because of Garcia’s protected concerted activity.
As is set forth in more detail earlier in this decision, Garcia had engaged in protected
concerted activities with his coworkers. In mid-May of 2011he had spent time in the lunch room
when on break on a daily basis discussing with production team members and maintenance
technicians work related complaints. In particular, he had discussed with the “operators” their
complaints about being over worked and about supervisor Ray Buchanan being unresponsive to
their needs.
Garcia brought the complaints of the production team members to the attention of
production manager Tim DeCrow. Garcia testified that he told DeCrow that “the operators, they
were saying they have too much work and [it’s] hard for them to handle.” In response, DeCrow
allegedly said that he was “tired of hear[ing] the operators cry, wah, wah, wah.” Garcia testified
that he understood DeCrow to mean that the operators were whining about being over worked.
As DeCrow never specifically denied having had this conversation with Garcia, I conclude that it
did occur as testified to by Garcia.
Also, in this same May 2011 time period, Garcia was having trouble with the
Respondent’s Enterprise Asset Management [EAM] System. As set forth in detail above, the
EAM System is designed to keep track of all the hours worked by the maintenance technicians,
showing how their time was spent, and also to keep a record of the various parts utilized by the
maintenance technicians in the course of repairing machinery. Garcia, as with some of the
other maintenance technicians, was having difficulty learning how to use the system. As was
discussed above, the Respondent, though its maintenance manager Paul Rose, made
considerable efforts to train the maintenance technicians in the new EAM System. However,
despite these efforts some of the technicians, including Garcia, seemed slow or reluctant to
achieve the desired results.
Because of Garcia’s inability to achieve the desired results using the EAM System, Rose
required him to sign a document entitled “EAM Training Acknowledgement Form.” The
document was dated May 6, 2011. It lists certain “Specific Expectations” of the employee, those
requirements being the reporting of at least seven out of eight hours worked and listing those
parts used while repairing machinery. The document stressed the importance of these reporting
requirements, and the last sentence read as follows: “Any failure to meet the specific
expectations outlined above will follow PPI’s employee performance disciplinary procedures up
to and including termination.” (G.C. Ex. 16.) According to Garcia, Rose never informed him that
this document constituted a verbal reprimand, and the first step in the Respondent’s progressive
disciplinary process. Apparently, Rose required the other maintenance technicians who were
not satisfying the EAM reporting requirements to also sign this form, as Counsel for the General
Counsel does not contend that the mere signing of this form constituted disparate treatment
towards Garcia. The requirement that Garcia sign the form is not alleged in the complaint as an
unfair labor practice.
As he signed the form, Garcia added contain comments at the bottom. Those
comments read as follows: “We need a lot more training with the system EAM. A lot of the
equipment don’t [sic] have the location and it is hard to find it in the system. Also, the
supervisors need to make the work orders so when we can’t close after work is done.” (G.C.
Ex. 16.) He testified that his concerns were shared by other maintenance technicians, however,
there is no evidence that Garcia spoke with fellow employees about these specific complaints.
Never-the-less, I believe that in writing his comments on the form, Garcia was engaged in
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protected concerted activity. His comments should be construed to be the efforts of an
individual employee seeking “to initiate or induce or to prepare for group action,” as well as that
of an individual employee “bringing truly group complaints to the attention of management.”
Meyers Industries, Inc., 281 NLRB 882 (1986), affirmed 835 F.2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988); NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 831 (1984)
(affirming the Board’s power to protect certain individual activities and citing as an example “the
lone employee” who “intends to induce group activity”).
While it is clear that around May of 2011 Garcia engaged in protected concerted
activities with other employees, and alone but also on behalf of other employees, it remains to
be seen whether his activities were in any way related to the subsequent actions of
management. I will address each of the four allegations of unlawful conduct towards Garcia in
chronological order.
Complaint paragraph 5(k) alleges that on October 4, 2011, the Respondent issued
Garcia a written warning. He did in fact receive such a warning on a “Disciplinary Process
Form” dated October 4 and issued by his immediate supervisor, Paul Rose. (G.C. Ex. 17.) The
discipline form makes reference to a prior “verbal reminder” dated May 6, 2011. This prior
reminder was the “EAM Training Acknowledgement Form” mentioned above. (G.C. Ex. 16.)
While counsel for the General Counsel in her post-hearing brief argues that this EAM Form
“does [not indicate] that it is a discipline, part of the progressive discipline plan, or a verbal
reminder,” that is not entirely accurate. The last sentence reads: “Any failure to meet the
specific expectations outlined above will follow PPI’s employee performance disciplinary
procedures up to and including termination.” Therefore, I agree with counsel for the
Respondent that for all practical purposes the EAM Form constituted a first warning to Garcia.
A series of disciplinary warnings issued to Garcia over his failure to train on the
Respondent’s EAM System and to become proficient in that system. As mentioned earlier, the
EAM System is a computer operated electronic system that is used to track hours worked and
parts used by maintenance technicians given certain assignments to perform, in an effort to
promote the Respondent’s ability to manage its production operating costs. The “warning” that
Garcia received in the “EAM Training Acknowledgement Form” was for failing to record at least
7 of his 8 hours of employment in the system, and also for failing to record all parts used in
making repairs. (G.C. Ex.16.)
In December of 2010, Rose provided classroom training in the EAM System to
maintenance technicians, including Garcia. Follow up training was given in February. Every
maintenance technician was required to use the system, and all who failed to do so received the
same written Acknowledgement Form that Garcia received. It is undisputed that Rose spoke
with Garcia numerous times about his failure to properly record information into the system.
However, during the hearing, Garcia testified that his failure to use the system as required was
solely because he either did not receive adequate training, or was too busy with his regular
maintenance duties to train on the system.
As early as August of 2011, Rose assigned all the maintenance technicians in the plant
the duty of completing seven skill assessments to determine their skill levels relative to several
different performance areas including pneumatics, electronics, motor controls, and others.
These assessments were intended to identify subjects where individual maintenance
technicians would need more training. Rose scheduled each of the technicians a designated
time each week to use a dedicated computer located in a plant conference room to complete
the assessments during working time. Garcia acknowledged at the hearing that he was
assigned to work on the assessments every Wednesday, and testified that he did not work on
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the assessment after the assignments were made. He testified that he told Rose that he had
“too much work and had no help,” so that he could not leave the production floor. However,
Rose told him that the assessments must be done, and that he should perform them as
scheduled unless there was a priority need to make a repair.
Rose continued to talk with Garcia about not doing the assessments. According to
Rose’s unrebutted testimony, as of October 1, 2011, only two technicians had failed to complete
a single assessment, namely Garcia and Bonito Deiparine. Therefore, on October 4, Rose
called both men into the conference room, presented them with nearly identical “Disciplinary
Process Forms,” and told them that they were receiving written warnings because of their
failures to complete the assessments assigned in early August. He told them that their failure to
complete any of the assessments was unacceptable, and that they must complete the
assessments no later than November 1 or additional discipline would be imposed.
The Disciplinary Process Form that Garcia received indicated on its face that it
constituted a “First Warning,” that a “Verbal Reminder” had been given on May 6, 2011, that the
unacceptable performance was the failure to have completed any of the 7 assessments first
assigned in early August, and that the expected improvement was “7 of 7 assessment tests
completed by 11/01/11.” (G.C. Ex. 17.) The form was signed by Christopher McClanahan, Paul
Rose, and Garcia.
Counsel for the General Counsel argues in her post-hearing brief that Garcia was never
given a deadline in which to complete the assessments until he was given the written warning
on October 4, and she is suggesting that in some way this was unfair. However, there is no
probative, credible evidence that Garcia was treated in a disparate fashion from any of the other
maintenance technicians. While Garcia testified that he thought that one technician may have
completed fewer assessments than he had done, no evidence was offered to support this
contention. Further, I credit the testimony of Rose who testified in a detailed, convincing
manner, and whose testimony was supported by documentary evidence that Garcia did not
complete his first assessment until October 7, 2011, three days after he received the written
warning. (Em. Ex.10.)
In my view, Garcia was disciplined for cause on October 4 when he received the
“Disciplinary Process Form.” (G.C. Ex. 17.) He was given ample opportunity to receive training
on the EAM System, was repeatedly spoken to by Ross about the need to complete the
assessment tests in a timely fashion, was told to take the training at the times scheduled unless
he had a priority repair to perform, and was not treated in a disparate fashion from the other
maintenance technicians.
The remaining three allegations of unlawful mistreatment of Garcia by the Respondent
(complaint paragraphs 5(d)(1), (2), and 5(l)) all occurred on the following day, October 5, 2011.
However, it is necessary to first note that Garcia accepted an assignment to a “Go Team” in
August 2011. At that time, DeCrow became his supervisor. As discussed above, a Go Team is
made up of production employees, process technicians, and maintenance mechanics, among
other classifications. The Go Team members are assigned to a specialized team familiar with a
particular set of machines. These employees are distinguished from their coworkers who work
on a number of different types of machines during one of three designated work shifts. Garcia
accepted the position on the Go Team because those hours of work were better for him than the
times of the tradition shift to which he had previously been assigned.
It is the Respondent’s position that after being assigned to the Go Team, Garcia began
to have significant performance issues. Specifically, the Respondent documented four
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incidents, which ultimately became the basis for a second disciplinary warning. In each of these
four incidents, the General Counsel argues that Garcia’s job performance was appropriate
under the circumstances. It is the receipt of this second written warning that the General
Counsel contends was unlawful. (See complaint paragraph 5(l)). These four alleged incidents
of improper performance are set forth in the “Disciplinary Process Form” received by Garcia on
October 5, 2011.
The four incidents reported on the Disciplinary Process Form are: (1) an incident
occurring on September 12-13 where Garcia was unable to fix a mechanical problem for two
days, causing production delays, and requiring another maintenance technician to make the
repair; (2) an incident on September 13 where Garcia installed a valve backwards, destroying it
and costing the Employer $4,000; (3) an incident on September 28 when Garcia refused to
follow the direction of his supervisor causing a production delay; and (4) an incident occurring
on September 30 when Garcia failed to answer his phone and report for work to repair a
machine over the course of two shifts, causing another technician to be called to make the
repair, resulting in a production delay. (G.C. Ex. 18.) DeCrow testified that after each incident
he spoke with Garcia, told him what he had done wrong, and at one point told him, regarding
the Go Team, that, “If this is too much for you, let me know and we can put you back on shift
duty.” When asked by counsel for the General Counsel why he gave Garcia this second written
warning, rather than just making it a part of the first written warning issued a day earlier,
DeCrow responded logically that the two written warnings involved totally different issues.
Although Garcia testified that he had not been spoken to after these incidents occurred, I credit
DeCrow. His testimony was detailed and had the ring of authenticity about it. Certainly, these
incidents were of a sufficient magnitude to have warranted DeCrow’s immediate need to speak
with Garcia about them.
Regarding each of the four incidents, Garcia testified that his actions were reasonable
under the circumstances and that he had done nothing wrong. As a layman, unfamiliar with the
technical requirements of repairing presses, I am unable to determine whether Garcia was at
fault or not regarding the first two incidents where production was delayed allegedly because he
was unable to repair machinery and had destroyed a valve that he was trying to replace.
However, I am able to analyze the second two incidents, which I believe are illustrative of all
four.
According to the Respondent, incident 3, which occurred on September 28, involved
Garcia’s refusal to follow direction from supervisor Ray Buchanan. Garcia testified about the
incident, and while he admitted that he failed to follow Buchanan’s order to run a machine and
instead went to lunch, he contended that he did not follow Buchanan’s direction because the
machine needed two hours to warm up in order to avoid being damaged. According to Garcia,
when he went to get lunch, Buchanan started the machine himself without waiting for it to warm
up, resulting in the color for the machine spilling all over the floor. In any event, it seems to me
that the salient point is not whether the machine should have been started without first warming
up, but, rather, that Garcia ignored supervisor Buchanan’s order to start the machine and
instead left for lunch. This was an act of insubordination.
Incident 4 occurred on September 30, when Garcia was at home and off from work. The
Respondent requires its maintenance technicians to be on-call and available to work an
emergency whenever necessary. During the night, when Garcia was at home sleeping, a
machine needed to be repaired, and supervisors made a number of calls to Garcia’s personal
cell phone attempting to contact him and have him report to the plant to make the necessary
repairs. However, Garcia failed to answer the calls. He testified that he did not hear the calls,
apparently because his phone was on vibrate. The Respondent ultimately called in another
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maintenance technician who repaired the machine. In any event, Garcia admits that he failed to
follow the Respondent’s procedure and be available and “on-call” when needed by the
Respondent to report for work.
Concerning incidents 3 and 4, it is clear that Garcia violated the Respondent’s policies
and procedures as he was, respectively, insubordinate towards a supervisor, and was
unavailable and not on-call when needed by the Respondent to report for work. As such, the
Respondent had a legitimate basis for issuing a written warning to Garcia. Regarding incidents
1 and 2, while I am not able to determine the technical issues involved, on the face of the
Respondent’s complaints, I can see no impropriety in the Respondent’s conclusion that Garcia
was either unable to make the repairs, or made them improperly, causing lost production and
damaging equipment. In any event, it is important to stress that counsel for the General
Counsel was unable to show that for any of these incidents that Garcia was treated in a
disparate fashion from other maintenance technicians or that the stated reasons for the
discipline was a pretext.
As noted above, Garcia received this second Disciplinary Process Form on October 5,
2011. (G.C. Ex. 18) He was called to a meeting in the human resource office where DeCrow,
McClanahan, and Rose were present. Garcia testified that while DeCrow was giving him the
written warning, DeCrow told him that he was making too many mistakes. According to Garcia,
DeCrow went on to say that he was “provoking some other people for them to complain,” and
that he “was the kind of person that was not good to have around.” Allegedly, DeCrow added
that Garcia “was not good for the business.” Garcia testified that in response he told DeCrow
that he was not provoking anyone, but just trying to pass information on to management that he
heard from the “operators” on the plant floor. Garcia signed the written warring and then walked
out of the room.
However, Garcia was not happy with the receipt of the written warning, believing that the
discipline was not warranted. He returned to talk with McClanahan, telling him that he wanted a
copy of the warning. At the same time, Garcia indicated he was not happy with the warning
and, so, McClanahan brought him to talk again with DeCrow. Garcia testified that he told the
two men that “some of these—that’s on the paper, I believe is not true.” According to Garcia, he
could see DeCrow’s “temper change,” and DeCrow said, “Jorge, one more warning and you’re
no longer going to be at Portola.” That ended the conversation and Garcia left the room.
All three management witnesses, DeCrow, McClanahan, and Rose denied that DeCrow
made the statements attributed to him by Garcia. The Respondent contends that DeCrow
merely told Garcia that his performance had been poor and was getting worse, with many
mistakes having been made, and, therefore, he was going to receive a written warning.
In this instance, I credit Garcia over the three supervisors. Garcia’s version of the
conversation was highly detailed, and, as he told the story, I could see the emotional effect that
testifying about the incident was having on him. On the other hand, the supervisors testified in a
cold, detached way, which led me to believe that their version of these events was fabricated.
Garcia’s testimony had the ring of authenticity about it, was consistent, and inherently plausible.
As I have already noted, Garcia engaged in protected concerted activity with other employees in
May of 2011 when they discussed work related complaints in the lunch room. He ultimately
brought some of those complaints to DeCrow. However, as I have already found, DeCrow was
less than sympathetic about hearing that the “operators” felt they were overworked, saying that
he was “tired of hear[ing] the operators cry, wah, wah, wah.” Further, Garcia was engaged in
protected concerted activity on behalf of himself and the other maintenance technicians when
on May 6, 2011, he wrote his complaints about the EAM System at the bottom of the EAM
JD(SF)-45-12
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Training Acknowledgement Form that he received. (G.C. Ex. 16.)
The statements attributed to DeCrow on October 5 by Garcia are consistent with
DeCrow’s earlier statements about the operators’ crying. He obviously had no patience with
complaining employees or those who were dissatisfied with their working conditions. Further, I
believe the Board’s policy of giving special credence to the testimony of a current employee who
testifies against the financial interests of his employer should certainly apply to Garcia. See
House of Good Samaritan, 319 NLRB 392, 396, fn.12 (1995) (citing Georgia Rug Mills, 131
NLRB 1304 (1961). While I have not uniformly found Garcia’s testimony credible, I believe that
in this instance it is clearly so.
Having found Garcia’s testimony in this instance credible, I find that on October 5, 2011,
the Respondent, through DeCrow, threatened Garcia because of his concerted activity when
DeCrow told Garcia that he was causing other employees to complain, was not good to have
around, and was not good for business. Accordingly, I find that the Respondent, through
DeCrow, threatened Garcia with unspecified reprisals for engaging in protected activity in
violation of Section 8(a)(1) of the Act, as alleged in complaint paragraph 5(d)(2). Further, I find
that on that same date, the Respondent, through DeCrow, threatened Garcia because of his
concerted activity when DeCrow told Garcia that with one more warning, he would no longer be
working for the Employer. Accordingly, I find that the Respondent, through DeCrow, threatened
Garcia with discharge for engaging in protected activity in violation of Section 8(a)(1) of the Act,
as alleged in complaint paragraph 5(d)(1). These violations establish that the Respondent,
through DeCrow, harbored animus towards its employees who engaged in protected concerted
activity.
It is now necessary to determine the Respondent’s motive in issuing the two written
disciplinary warnings to Garcia on October 4 and 5, 2011. (G.C. 17 & 18.) In Wright Line, A
Division of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the Board announced the following causation test in all cases
alleging violations of Section 8(a)(3) or violations of 8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie showing sufficient to support the inference
that protected conduct was a “motivating factor” in the employer’s decision. This showing must
be by a preponderance of the evidence. Then, upon such a showing, the burden shifts to the
employer to demonstrate that the same action would have taken place even in the absence of
the protected conduct. The Board’s Wright Line test was approved by the United States
Supreme Court in NLRB v. Transportation Corp., 462 U.S. 393 (1983).
In the matter before me, I conclude that the General Counsel has made a prima facie
showing that Garcia’s protected concerted activity was a motivating factor in the Respondent’s
decision to issue to him two written disciplinary warnings. In Tracker Marine, L.L.C., 337 NLRB
644 (2002), the Board affirmed the administrative law judge who evaluated the question of the
employer’s motivation under the framework established in Wright Line. Under the framework,
the judge held that the General Counsel must establish four elements by a preponderance of
evidence. First the General Counsel must show the existence of activity protected by the Act.
Second, the General Counsel must prove that the Respondent was aware that the employee
had engaged in such activity. Third, the General Counsel must show that the alleged
discriminatee suffered an adverse employment action. Fourth, the General Counsel must
establish a link, or nexus, between the employee’s protected activity and the adverse
employment action. In effect, proving these four elements creates a presumption that the
adverse employment action violated the Act. However, more recently the Board has stated that,
“Board cases typically do not include [the fourth element] as an independent element.” Wal-
Mart Stores, Inc., 352 NLRB 815, fn.5 (2008) (citing Gelita USA, Inc.,352 NLRB 406, 407, fn.2
JD(SF)-45-12
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(2008)); SFO Good-Nite Inn, L.L.C., 352 NLRB 268, 269 (2008); Also see Praxair Distribution,
Inc., 357 NLRB No. 91, fn.2 (2011). In any event, to rebut the presumption, the Respondent
bears the burden of showing the same action would have taken place even in the absence of
the protected conduct. See Manno Electric, Inc., 321 NLRB 278, 280, fn.12 (1996); Farmer
Bros. Co., 303 NLRB 638, 649 (1991).
It is axiomatic that Section 7 of the Act gives employees the right to communicate with
each other regarding their wages, hours, and working conditions. Further, the Board has
consistently held that the communication between employees “for nonorganizational protected
activities are entitled to the same protection and privileges as organizational activities.” Phoenix
Transit Systems, 337 NLRB 510 (2002) (citing Container Corporation of America, 244 NLRB
318, 322 (1979)).
As I have already found, there is no doubt that Garcia was engaged in protected
concerted activity in May of 2011 when he discussed work related concerns with fellow
employees in the lunch room at the plant, and when he brought operator complaints about being
over worked to the attention of DeCrow. Further, he engaged in protected concerted activity on
behalf of himself and the other maintenance technicians when on May 6 he wrote negative
comments about the EAM System training on the bottom of the EAM Training
Acknowledgement Form (G.C. Ex. 16) that he signed and gave to Paul Rose.
Obviously, the Respondent was aware of Garcia’s protected concerted activity as
production manager DeCrow was the recipient of Garcia’s complaints regarding the operators
being overworked, and maintenance manager Rose was the recipient of Garcia’s complaints
regarding the EAM System training for maintenance technicians.
The two “Disciplinary Process Forms” (written warnings) received by Garcia on October
4 and 5, 2011, respectively, were clearly adverse employment actions. These were serious
matters under the Respondent’s progressive discipline system, as the second written warning
(the one dated October 5) indicates on its face that the next action was “Termination.”
Finally, counsel for the General Counsel has established a connection or nexus between
the discipline and Garcia’s protected activity by showing that the Respondent, through DeCrow,
harbored animus towards Garcia because of those activities. As noted above, I have found that
on October 5, the date of the second written warning, and only one day after the issuance of the
first written warning, DeCrow orally threatened Garcia with discharge and with other unspecified
reprisals because he had engaged in protected concerted activity. I have already found that
these threats constituted violations of the Act. Certainly the timing of the oral threats in
connection with the issuance of written warnings is support for the proposition that the
Respondent was at least to some extent motivated to issue the written warnings in question
because Garcia had engaged in protected concerted activity.
Having found that the General Counsel has established a prima facie case that the
Respondent was motivated to issue the two written warnings to Garcia, at least in part, because
of his protected concerted activity, the burden now shifts to the Respondent to show that it
would have taken the same action absent the protected conduct. Senior Citizen Coordinating
Counsel of Riverbay Community, 330 NLRB 1100 (2000); Regal Recycling, Inc., 329 NLRB 355
(1999). The Respondent must persuade by a preponderance of the evidence. Peter Vitalie
Company, Inc., 310 NLRB 865, 871 (1993). I am of the view that the Respondent has met this
burden.
Earlier in this decision, I analyzed the two written warnings received by Garcia on
JD(SF)-45-12
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October 4 and 5, 2011, respectively. For the reason that I noted above at length, I concluded
that the two warnings were not a pretext, did not establish disparate treatment, and appeared to
constitute an effort by the Respondent to discipline Garcia for legitimate reasons. Garcia was
far from a model employee. He failed to take timely assessment training on the EAM System
despite repeated efforts on the part of maintenance manager Rose to assist him in doing so.
For this he received the first written warning on October 4. Garcia committed numerous
breaches of the Respondent’s policies and procedures, including insubordination, failure to
respond to an “on-call” contact, and questionable machine repair efforts, which on their face
appear to have resulted in lost production and significant replacement costs for the Respondent.
For this he received the second written warning on October 5. These were not the actions of an
employee who was interested in performing his job duties to the best of his ability. Such
misconduct on the part of an employee, whether Garcia or any other maintenance technician,
would likely have resulted in similar disciplinary action, even where said employee had engaged
in no protected conduct.
Accordingly, based on the above, I conclude that the Respondent has met its burden of
proof and established by a preponderance of the evidence that Garcia was issued the two
written warnings on October 4 and 5, 2011, respectively, for cause. As such, the Respondent
has rebutted the General Counsel’s prima facie case and shown that it would have disciplined
Garcia even in the absence of his having engaged in protected conduct. Therefore, I shall
recommend to the Board that complaint paragraphs 5(k) and (l) be dismissed.
C. Union Activity
It appears that the concerted activity engaged in by certain of the Respondent’s
employees eventually progressed into union activity. Many of the Respondent’s employees
remained dissatisfied with their working conditions and felt that management was unresponsive
to their concerns.
On November 1, 2011, the Union filed a petition for an election with the Region. (G.C.
Ex. 1(e)). On November 7, 2011, a Stipulated Election Agreement was executed by the parties
and approved by the Regional Director. (Em. Ex. 4.) That agreement provided for an election
among the following unit of the Respondent’s employees:
Included: All full time and regular part-time production workers including machine operators,
sanitation, and packaging employees employed by the Employer at its facility in
Tolleson, Arizona.
Excluded: All other employees including maintenance mechanics, shipping and receiving
employees, quality control employees, office clericals, managers, guards, and
supervisors as defined in the Act.
Following the Respondent’s notice that a representation petition had been filed, it hired a
union-avoidance consulting firm, LRI Consulting Services (LRI). The Respondent entered into a
contract with LRI on November 8, 2011. (G.C. Ex. 4.) Under the terms of the contract, LRI
agrees to provide “expert campaign consulting with an on-site facilitator to communicate your
message directly to employees in employee meetings and one-on-one.” (G.C. Ex. 4, p. 1 of the
attached proposal.) One of the three stated objectives in the contract is for the Respondent to
“win the NLRB election by as wide a margin as possible or achieve a withdrawal of the petition,
without meritorious election objections or unfair labor practice charges.” (G.C. Ex. 4.) LRI
dispatched Armando Talancon to the Tolleson plant soon after the contract was signed to serve
as the on-site facilitator.
JD(SF)-45-12
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Under the terms of the contract, LRI’s fee is $50,000 plus expenses for the first fifteen
days of work, and $3,000 for each day thereafter. However, under the contract the bulk of these
sums are refundable should the Union be certified by the Board. (G.C. Ex. 4.)
Talancon arrived at the Tolleson facility on November 8, 2011, and remained at the plant
until two days prior to the election, which was held on December 1. He speaks English and
Spanish and was formerly employed by a different local of the United Food and Commercial
Workers Union. Talancon testified that he has a contract with LRI, under which terms he is paid
expenses and a $50,000 fee for his work at the Respondent’s facility. However, it is significant
to note that according to Talancon, he is only paid the $50,000 fee if the Union loses the
election. If the Union wins the election, then he only gets his expenses, principally for travel,
meals, and housing.11
Talancon testified at length at the hearing. Preliminarily, I would note that I did not find
him to be a credible witness. He made some highly incredible statements at the hearing.
Talancon testified that LRI did not tell him what they wanted him to do at the plant, and that he
was not sent there to communicate the Respondent’s message to their employees. He
contends that he is a “consultant,” sent to the facility merely to answer the questions employees
ask about the election, and to explain the election process to them. He claimed that he had
never seen the contract between LRI and Portola before the hearing, and despite the language
of the contract promising that the “facilitator” will communicate the Employer’s message to the
employees, he testified that he did not communicate that message to the employees. He
argued that the Employer was responsible for communicating its own message.
During examination by counsel for the General Counsel, Talancon seemed very
uncomfortable, especially when testifying about his role in the election campaign. He struggled
to make sense out of some really nonsensical contentions, and seemed frequently uncertain as
to what answer to give to counsel’s questions. His discomfort was somewhat surprising,
considering his educational and professional background. He testified that he has attended law
school, and has worked on labor relations issues, arbitrations, grievances, and contract
negotiations at different times on both the union and the employer side. Frankly, I believe that
his discomfort was the result of his being totally unable to reconcile his contention that he was
merely at the plant to answer employee questions and to explain the election process, with the
terms of LRI’s contract with Portola, which terms provided that the facilitator would present the
Employer’s case to the employees, with the stated objective of defeating the Union in the
election. As I have said, Talancon’s testimony was simply incredible.
When he first arrived at the plant, Talancon held a meeting with management where he
sought to discover “what the problems were, [and] what threw up a flag to their employees to
seek to be represented by the UFCW.” The Employer provided him with an office at the plant
that he could use during his stay. Thereafter, Talancon spent much of his time at the facility
between November 10 and 18 meeting with small groups of employees. Obviously, he was
authorized by the Respondent to conduct these meetings, which were mandatory and held
during work time.

11 The $50,000 sum is somewhat confusing as the LRI contract with the Respondent
provides for the payment of a fee in that amount, and Talancon testified that his fee with LRI is
for the same amount. Never-the-less, it is clear that the Respondent is only required to pay a
fee to LRI if the Union loses the election, and, similarly, LRI is only required to pay a fee to
Talancon if the Union is defeated.
JD(SF)-45-12
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Human Resource Manager Chris McClanahan arranged a schedule for groups of three
or four employees at a time to meet with Talancon in the plant conference room. McClanahan
and/or Plant General Manager Tim Tyler came to the meetings to introduce Talancon. Typically
they would introduce Talancon as someone who had previously worked as a union organizer,
and who had more knowledge than they did regarding the Union and the election process. The
employees were told that the Employer had brought Talancon in to the facility to speak to them,
and that he was there to inform the employees about the Union and to answer any of their
questions. At least one employee, Evangelina Villegas, testified that she was told that Talancon
was there to speak for Portola. Following their introductions, Tyler and McClanahan would
leave the meeting.
Talancon testified that following meetings with groups of employees, that he meet with
management officials and advised them of the issues that employees were raising, principally
that there was a lack of respect for employees, that the Employer seemed uninterested in their
complaints, and that supervisor Ray Buchanan was particularly unresponsive to their needs.
During his testimony, Talancon admitted that he told employees that he “would let management
know” of their complaints, so that “[management] could try to fix things if they could….”
In its answer to the complaint, the Respondent denied that Talancon was an agent of the
Respondent within the meaning of Section 2(13) of the Act. I find this denial frivolous. It is well
established that the Board applies the common law principles of agency when determining
whether an individual is an agent of the employer. Additionally, as stated in the Act, when
making a determination of agency, “the question of whether the specific acts performed were
actually authorized or subsequently ratified shall not be controlling.”
Apparent authority results from a manifestation by the principal to a third party that
creates a reasonable basis for the latter to believe that the principal has authorized the alleged
agent to perform the acts in question. Southern Bag Corp., 315 NLRB 725 (1994); See
generally Great American Products, 312 NLRB 962, 963 (1993); Dentach Corp., 294 NLRB 924
(1989); Service Employees Local 87 (West Bay), 291 NLRB 82 (1988). The test is whether,
under all the circumstances, the employees “would reasonably believe that the employee in
question (the alleged agent) was reflecting company policy and speaking and acting for
management.” Waterbed World, 286 NLRB 425, 426-427 (1987). This test is satisfied when
the employee is held out as a conduit for transmitting information from management to other
employees. Cooper Industries, 328 NLRB 145, 145 (1999). Obviously, the “agent” can also be
an individual, other than an employee.
Typically, labor relations consultants or “facilitators” hired by an employer to convey its
message to employees are considered to be agents of the employer, and, thus, statements
made by them can be attributed to the employer. See DHL Express Inc., 355 NLRB No. 144,
slip. op. at 19 (2010).
In the matter at hand, under the terms of the contract between the Employer and LRI,
the facilitator, who is obviously Talancon, is expected to communicate the Employer’s message
directly to employees in employee meetings and one-on-one. (G.C. Ex. 4.) Thus, he becomes
an actual agent of the Respondent, appointed for the purpose of communicating on behalf of the
Employer with its employees. Further, Talancon was invested with apparent authority as the
Respondent, through supervisors Tyler and McClanahan, brought him into meetings with small
groups of employees, who were told that he had been brought to the plant by Portola so that he
might answer their questions and explain the election process to them. The only logical
conclusion that those employees could reach was that Talancon was representing the Employer
JD(SF)-45-12
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and the interests of management. The Employer did nothing to refute that impression.
Therefore, the Employer was responsible for the actions and statements of its agent, Talancon.
Uniontown Hospital Association, 277 NLRB 1298, 1299 (1985).
1. The Actions and Statements of Armando Talancon
It is alleged in complaint paragraph 5(e)(1) that on about November 10, 2011, Talancon
unlawfully solicited employee complaints and grievances, and promised the Respondent’s
employees increased benefits and improved terms and conditions of employment if they
rejected the Union as their collective-bargaining representative. Further, it is alleged in
complaint paragraph 5(e)(2) that during the same period of time, Talancon threatened
employees with discharge if they chose the Union as their collective-bargaining representative.
Also, it is alleged in complaint paragraph 5(e)(3) that in that same period, Talancon threatened
employees with unspecified reprisals if they selected the Union as their collective-bargaining
representative. These threats and statements are alleged to have occurred during the
numerous small group meetings that the Respondent arraigned for Talancon to have with
employees between November 10 and 18, 2011.
Talancon spoke to these groups of employees in both English and Spanish, going back
and forth between the two languages. Some of the employees to whom he spoke were
proficient in only one language, with others being proficient in both. Five employees, Marta
Magallon, Herlinda Cervantes, Evangelina Villegas, Paul Gaudet, and Maria Solano, testified at
some length about their meetings with Talancon.12 However, they did not all attend the same
meetings.
As I previously stated, I found Talancon to be an incredible witness. His professed lack
of knowledge about his role as a “facilitator” as set forth in the contract between LRI and the
Respondent, and his contention that his role was that of educator, rather than a partisan
attempting to secure the Union’s defeat in the election, defies credulity. Further, the contingent
character of his fee, and that of LRI, being totally dependent upon the Union’s defeat in the
election, makes Talancon potentially a highly biased witness. Obviously, he has a considerable
monetary interest in the outcome of this hearing favoring the Respondent. That is to be
contrasted with the employee witnesses who testified against the pecuniary interest of their
Employer, and who placed their future with Portola at risk in doing so. The Board has frequently
held that the testimony of such witnesses may be given special credence. For these reasons,
as well as those expressed earlier in this decision, I will credit the testimony of employee
witnesses over that of Talancon, whenever they are at variance.
Marta Magallon attended the same meeting as Paul Gaudet. Magallon speaks Spanish,
Gaudet speaks English, and his job classification was not included in the unit sought to be
represented by the Union. Magallon, somewhat inarticulately, recalls Talancon saying that “we
could lose the benefits we have with Portola, that if Portola didn’t want to, they didn’t, they
wouldn’t give us any benefits.” She also remembered Talancon saying that management would
“go and talk to us.” Magallon claims that Talancon mentioned the “attendance policy,” and she
seems to be saying that Talancon was suggesting that the policy was something that the
employees might be able to get management to “change.”

12 Employee Alicia Martinez also spoke about her meeting with Talancon, but with very little
detail. She testified that she could not remember much of what was said because of Talancon’s
poor Spanish.
JD(SF)-45-12
25
In his testimony, Gaudet remembered the meeting differently. He recalled the gist of the
meeting as an explanation of the election process, and the use of secret ballots. Gaudet
specifically denied that Talancon issued any threats, promises, or commands to vote a certain
way. However, I did not find Gaudet to be a compelling witness. He seemed to have his
testimony rehearsed and testified as if by rote.
I credit Magallon whose testimony seemed genuine, and conclude that Talancon was
telling the employees that they would lose benefits if the Union were successful in the election.
Further, I conclude that Talancon was suggesting to the employees that in the case of the
attendance policy, the Employer might be willing to make improvements. As I discredit
Talancon, I do not believe that he was simply explaining the election process and collective
bargaining process to the employees. I find his self serving statements very disingenuous.
Herlinda Cervantes attended a meeting with Talancon at which none of the other five
testifying employees were present. She testified in a rather disjointed, broken manner, perhaps
because of the use of a Spanish language interpreter. At one point she appeared to be
testifying as to what Talancon had said that the Respondent would do, if the Union won the
election. She testified that he said that while “he didn’t know how the company [would] react,
and that the company could treat us badly, for, do, to treat the employees badly that were in
favor of the union because, and that we could be fired.” However, during cross-examination by
counsel for the Respondent, Cervantes responded to a question as to whether Talancon had
said anything about what could happen if the Union won the election, with an emphatic, “That
we could be fired.”
I credit Cervantes, whose testimony is never directly challenged, except by Talancon’s
discredited general denials. Therefore, I conclude that Talancon threatened employees with
discharge if the Union were successful in the election.
Evangelina Villegas testified about a meeting she attended with Talancon, along with
Maria Solano. According to Villegas, during the meeting, Talancon said that he had received
many “complaints” from employees, and that “he was going to hand over all those notes to the
managers,” so they would be aware of them. Further, he indicated that he had been taking
such notes when employees voiced complaints. Villegas testified that during the meeting,
Solano complained about not being respected by the supervisors, having too much work to
perform, and of seeing employees cry because they were overworked. According to Villegas,
Talancon replied that he would “tell that to all the bosses, to the managers, and he would see if
they change things.”
Solano testified in a general way that Talancon “explained to us about the work, about
the Union, and about Portola.” He talked about the election, and said that it was “no problem”
however an employee decided to vote. Solano denied that Talancon made threats, or
promises, or said that the Respondent would otherwise take any action on the basis of how
employees voted. However, she never addressed the specific claim of Villegas that Talancon
said that he would take his notes of employee complaints to management, and see whether
they were addressed. In this respect, Solano’s testimony does not rebut or dispute the
testimony of Villegas. As noted, I do not accord Talancon’s discredited denials any weight.
Accordingly, I credit Villegas’ testimony that Talancon said that he would take employee
complaints to management for them to address.
Regarding the allegation in complaint paragraph 5(e)(1), I believe that the testimony of
Marta Magallon and Evangelina Villegas establishes that the Respondent solicited employee
complaints and grievances, and promised its employees increased benefits and improved terms
JD(SF)-45-12
26
and conditions of employment if they rejected the Union in the election. I found that Magallon
credibly testified that at an employee meeting, Talancon told the assembled workers that
management would talk with the employees and that something might be done to get an
attendance policy they did not like changed. Further, I found that Villegas credibly testified that
at a similar meeting, Talancon told the employees present that he had been taking notes of
employee complaints, and that he was going to hand those notes over to Portola’s managers so
that they would be aware of the complaints.
The Board has repeatedly held that, in the absence of a previous practice of doing so,
the solicitation of grievances by an employer during an organizational campaign violates the Act
when the employer promises to remedy those grievances. See, e.g. Center Construction Co.,
Inc., 345 NLRB 729, 729-731 (2005), enfd. in part, denied in part by Center Construction Co., v.
NLRB, 482 F.3d 425 (6th Cir. 2007); Uarco, Inc., 216 NLRB 1, 2 (1974). The promise to remedy
need not be specific or even explicit. Grouse Mountain Associates II, 333 NLRB 1322, 1324
(2001). Where an organizational campaign is ongoing, the solicitation of grievances creates a
rebuttable presumption that the employer is going to remedy them. Aladdin Gaming, LLC, 345
NLRB 585, 607 (2005), citing Maple Grove Health Center, 330 NLRB 775, 775 (2000); Center
Construction Co., supra. This is especially true when an employer that has not previously had a
practice of soliciting employee grievances suddenly initiates such a practice during an
organizational campaign. Amptech, Inc., 432 NLRB 1131, 1136-1138 (2004).
In the matter before me, there is no probative evidence that the Employer ever had a
practice of soliciting employee complaints. To the contrary, the Employer has the reputation
among its employees of being insensitive to employee complaints. Talancon’s statements
during pre-election meetings with employees were designed to cause employees to state their
complaints or grievances, followed by a subtle notice that those complaints would be
transmitted to management, with the implied suggestion or promise that those complaints would
then be favorably adjusted by the Employer. The Respondent has offered no credible evidence
to rebut this presumption.
Accordingly, I conclude that counsel for the General Counsel has met her burden and
established that the Respondent interfered with, restrained, or coerced employees in the
exercise of their rights guaranteed by Section 7 of the Act, through the conduct of Talancon as
alleged in complaint paragraph 5(e)(1). Such conduct constitutes a violation of Section 8(a)(1)
of the Act.
Regarding the allegation in complaint paragraph 5(e)(2), I believe that the testimony of
Herlinda Cervantes establishes that Talancon threatened employees with discharge for
supporting the Union. I have found that Cervantes credibly testified that at a pre-election
meeting for employees, Talancon informed the assemble employees that if the Union won the
election, the Employer might treat them badly, even firing them.
Of course, it is axiomatic that an employer violates Section 8(a)(1) of the Act when it
threatens to discharge or take other adverse employment action against employees for
supporting a union. Such conduct clearly serves to interfere with, restrain, or coerce employees
in the exercise of their Section 7 rights. Accordingly, counsel for the General Counsel has
established that the Respondent, through Talancon, has violated the Act, as alleged in
complaint paragraph 5(e)(2).
Regarding the allegation in complaint paragraph 5(e)(3), I believe that the testimony of
Marta Magallon establishes that Talancon threatened employees with unspecified reprisals if
they chose the Union as their collective-bargaining representative. I have found that Magallon
JD(SF)-45-12
27
credibly testified that at a pre-election meeting for employees, Talancon informed assembled
employees that if the Union won the election, the employees might lose benefits. While not
specifying what benefits he was talking about, and without making his statement contingent on
the vagaries of collective-bargaining, Talancon was simply threatening employees that a Union
victory might result in a loss of benefits.
Once again, it is axiomatic that an employer violates Section 8(a)(1) of the Act when it
threatens to withhold benefits from employees for supporting a union. Such conduct clearly
serves to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.
Accordingly, counsel for the General Counsel has established that the Respondent, through
Talancon, has violated the Act, as alleged in complaint paragraph 5(e)(3).
2. The Actions and Statements of Ray Buchanan
The General Counsel alleges in complaint paragraph 5(f)(1) that on about November 16,
2011, supervisor Ray Buchanan interrogated employees about their union and concerted
activities. Further, it is alleged in complaint paragraph 5(f)(2) that during the same period of
time, Buchanan created an impression among the employees that their union and other
concerted activities were under surveillance by the Respondent. Also, it is alleged in complaint
paragraph 5(f)(3) that during that same period, Buchanan threatened employees with
unspecified reprisals by not assisting them because they engaged in union and other concerted
activity.13 These three allegations arise out of a single conversation between Herlinda
Cervantes and her supervisor, Ray Buchanan, in the lunch room of the plant on November 16,
2011.
According to the testimony of Cervantes, she was present in the lunch room with
Buchanan and another employee, Daisy, whose last name she cannot recall. Daisy is a
production team member, as is Cervantes. Cervantes testified that she approached Buchanan
and told him that he should help an employee by the name of Jorge Mendez, who she said had
too much work to perform. Further, she testified that Buchanan replied that he would not help
Mendez because “he knows that [Mendez] was in the Union.” Allegedly, Buchanan then asked
Cervantes if she knew that Mendez was in the Union, to which she replied that she did not
know. Cervantes testified that Buchanan next asked her whether she had “signed a card for the
Union.” She told him that she had not, to which he asked her if she was sure. This time she did
not answer his question.
Cervantes testified that next she asked Buchanan a question, namely whether he had
been in a union before. He replied that he had been in a union in the past, but “it was no good.”
Buchanan followed up with a question to Cervantes, asking her whether she had been in a
union before. Cervantes replied that she had previously been in a union, 15-18 years in the
past. She added that currently she was still receiving money from that union. According to
Cervantes, Buchanan said that he could not believe that.
Cervantes testified that Buchanan then asked Daisy “what she thought about unions,” to
which Daisy said that she did not know. Cervantes next told Buchanan that she needed to go
back to work, as her time was up. She left the room, which ended the conversation.
As one would expect, Buchanan’s version of this conversation was somewhat different.

13 This unfair labor practice allegation is also the subject of the Union’s objection number 3
to conduct affecting the results of the election.
JD(SF)-45-12
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He recalled the conversation in the lunch room, and also remembered the other employee
present was Daisy Malabo, another production team member. Buchanan testified that
Cervantes started the conversation, asking him for his “opinion, about the Union coming into the
Portola plant.” He responded that in his opinion, “the Union coming into the Portola plant is a
very big mistake.” She asked him why, to which he replied that based on his past experiences,
if the Union came into the plant, the supervisors would no longer be able to help the production
team members on the plant floor, as they did currently. After prompting by counsel for the
Respondent, Buchanan testified that he told Cervantes that his past experience consisted of
working at Ford Motor Company where the UAW represented the employees, and where
supervisors were not allowed to assist the production employees on the plant floor. He claims
that he told Cervantes that his “fear” was not being allowed to assist the production team
members as he currently did. Cervantes replied that she did not believe that to be true, and that
was the end of the conversation.
Buchanan testified that he did not speak with Daisy during this conversation, and Daisy
said nothing, simply sitting and eating her lunch. Unfortunately, Daisy was not called as a
witness by any party to this proceeding.
Obviously, Buchanan and Cervantes differ significantly regarding the substance of this
conversation. This is not an easy matter to resolve, as both witnesses testified in a direct and
forceful way. However, on the whole, I was more impressed with Cervantes. Her testimony
was reassuringly detailed. Overall it also seemed more logical and likely than that told by
Buchanan. His contention that he told Cervantes about having previously worked for Ford
Motor Company sounded a bit contrived and self serving. Further, as I have mentioned several
times in this decision, the Board tends to give added weight to the testimony of current
employees of a respondent, such as Cervantes, who are testifying against their employer’s
interests, to the potential detriment of themselves. It is appropriate to assume that such
employees wish to keep their jobs, and, therefore, only testify against the interests of their
employer because telling the truth requires them to do so. See Samaritan Medical Center,
supra; Hi-Tech Cable Corp., supra; Georgia Rug Mills, supra; Gold Standard Enterprises, supra;
D & H Mfg. Co, supra. It was certainly easier for Buchanan to testify in favor of the Respondent
than it was for Cervantes to testify against her employer’s interests. Therefore, I credit
Cervantes’ version of her conversation with Buchanan.
Buchanan was engaged in an illegal interrogation, creating an impression of
surveillance, as well as a threat to not assist employees due to their union activity. The
conversation began with Cervantes making a legitimate work related remark to Buchanan,
namely that he should help employee Jorge Mendez, as Mendez had too much work to do.
Buchanan replied by saying that he would not help Mendez because Mendez was in the Union.
This statement constitutes an unlawful implied threat to discriminate against Mendez by refusing
to help him due to his union activity. See Evergreen America Corp., 348 NLRB 178, 202-203
(2006) (telling known union proponent, “Why did you lead this campaign? Now I can’t help you
anymore” was implied threat of reprisal). Buchanan’s threat constituted a violation of Section
8(a)(1) of the Act, as alleged in complaint paragraph 5(f)(3).14
Further, when Buchanan asked Cervantes if she knew whether Mendez was in the

14 Whether Buchanan’s implied threat is construed as a threat of an unspecified reprisal, as
set forth in the complaint, or an implied threat specifically to withhold assistance to employees,
the result is the same. In either case, the Respondent, through Buchanan, has violated the Act
by threatening to discriminate against employees because of their union activity.
JD(SF)-45-12
29
Union and asked her whether she had signed a union authorization card, he was engaged in
unlawful interrogation. The Board looks to the “totality of the circumstances” in determining
whether a supervisor’s questions to an employee about suspected protected activity were
coercive under the Act. Rossmore House, 269 NLRB 1176 (1984), aff’d. sub nom., HERE Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In Westwood Health Care Center, 330 NLRB 935
(2000), the Board listed a number of factors considered in determining whether alleged
interrogations under Rossmore House were coercive. These are referred to as “Bourne
factors,” so named because they were first set forth in Bourne v. NLRB, 332 F.2d 47, 48 (2nd
Cir. 1964). These factors include the background of the parties’ relationship, the nature of the
information sought, the identity of the questioner, the place and method of interrogation, and the
truthfulness of the reply.
In the matter at hand, Buchanan was Cervantes’ immediate supervisor, and he
questioned her in the lunch room in the presence of one other employee, also a subordinate of
Buchanan. The information sought was highly confidential and privileged, namely whether
Mendez was “in the Union,” and whether Cervantes had “signed a union authorization card.”
Cervantes was clearly surprised and frightened by the question, telling Buchanan that she did
not know whether Mendez was in the Union or not, and denying that she had signed a union
card. She was obviously unwilling to tell him that she was a union supporter, even after he
asked her a second time. Under the Bourne factors, Buchanan’s interrogation of Cervantes was
clearly coercive.
Based on the above, I conclude that Buchanan unlawfully interrogated Cervantes. His
questions served to interfere with, restrain, or coerce Cervantes in the exercise of her Section 7
activity. According, I find that the Respondent, through Buchanan, violated Section 8(a)(1) of
the Act, as alleged in complaint paragraph 5(f)(1).
Buchanan also created an impression among employees that their union and other
concerted activities were under surveillance by the Respondent. In his conversation with
Cervantes, Buchanan made the statement that Mendez was in the Union, as if that was a fact
that he knew. Also, when Cervantes denied that she had signed a union card, Buchanan asked
her if she was “sure,” as if he had some knowledge of what she had done. These statements by
Buchanan could reasonably have left Cervantes, and Daisy who was also present, with the
impression that the Respondent was somehow aware of the union activity engaged in by its
employees.
It is well established that where employees are conducting their activities openly on or
near company premises, the open observation of such activities by an employer is not unlawful.
Roadway Package System, 302 NLRB 961 (1991). On the other hand, the Board has
consistently held that “[e]mployees should not have to fear that ‘members of management are
peering over their shoulders, taking note of who is involved in union activities, and in what
particular ways.’” Conley Trucking, 349 NLRB 308, 314 (2007), quoting Fred’k Wallace & Son
Inc., 331 NLRB 914 (2000).
There is no indication that Mendez and Cervantes were engaged in union activity in an
open manner, or, for that matter, in any way. Never-the-less, Buchanan’s statements would
reasonably leave employees with the impression that the Respondent, through Buchanan, was
somehow aware of what they were doing. This would logically cause employees to suspect that
the Respondent was watching their movements and actions, even when those activities were
conducted in private.
Buchanan’s statements would tend to interfere with, restrain, or coerce employees who
JD(SF)-45-12
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wished to exercise their Section 7 rights. Accordingly, I conclude that the Respondent, through
Buchanan, has violated Section 8(a)(1) of the Act, as alleged in complaint paragraph 5(f)(2).
3. The Vote “No” Letter
Complaint paragraph 5(g) alleges that in mid-November 2011, Tim Tyler, by letter,
threatened employees with unspecified reprisals by demanding that they vote “no” in the
upcoming representation election. As was noted above, an election was scheduled for
December 1, 2011, in Case 28-RC-067973, for a unit of the Respondent’s employees. The
Respondent had been engaged in a vigorous campaign to defeat the Union almost since the
petition was filed on November 1. As was discussed earlier, the Respondent contracting with
LRI to conduct much of that campaign, pursuant to which Armando Talancon held meetings with
small groups of employees. Additionally, numerous flyers and letters were produced by the
Employer and distributed to employees, some were posted at the plant, others were handed to
employees, and still others were mailed to employees’ homes. These flyers and letters were
clearly intended to cause the employees to vote in the election against union representation.
Many of the flyers and letters were signed by the plant general manager, Tim Tyler.
While there is some dispute about this issue, I have concluded, as testified to by the
Respondent’s witnesses, that each flyer or letter was two sided, with the text written in the
English language on one side, and the Spanish language text on the other side. The English
language text was translated into Spanish by Chris McClanahan, who is fluent in Spanish,
and/or by Armando Talancon, who is conversant in Spanish, but not fluent. I have concluded
that those Spanish speaking employee witnesses called by the General Counsel, who testified
that they received election related documents from the Employer, were mistaken when they
testified that some of those documents only contained a Spanish language text. I am of the
view that as they were only fluent in Spanish, they paid no attention to the English language
text, and, therefore, have simply forgotten that the documents contained two languages.
The document at issue herein was undated, but the testimony of various witnesses
establish that it was issued about two weeks prior to the election. This document is a letter
signed by Tim Tyler, addressed individually to each specific employee in the proposed
bargaining unit, and mailed, respectively, to each employee’s home address. There were two
versions of the letter entered into evidence, the Spanish language version (G.G. Ex.5.) and the
English language version (Em. Ex. 5.). Tyler testified that he wrote the letter in English, and
Armando Talancon testified that he translated the letter into Spanish. Talancon testified that his
Spanish is “not that great.”
As I have indicated above, I conclude that his letter, as with all pre-election documents
produced by the Respondent, was two sided, with English on one side and Spanish on the
other. The Spanish language version of the letter is the subject of this unfair labor practice
allegation.15
For the most part, the letter consists of standard campaign talking points for an
employer, such as an admonition to beware of union promises, and with a discussion of the
uncertainties of the collective bargaining process. However, it is the last sentence in the
Spanish language text that is the subject of this allegation. The same sentence in the English
language text, which reads as follows, is not in dispute: “I urge you to vote NO on December 1.”

15 This dispute is also the subject of the Union’s objection number 1to conduct affecting the
results of the election.
JD(SF)-45-12
31
The Spanish language text of the last sentence of the letter is: “Te exijo que votas NO
en Diciembre 1, 2011.” The General Counsel and the Union contend that the Spanish sentence
should be translated as, “I demand that you vote NO on December 1, 2011.” The key phrase is
“te exijo.” However, according to the Employer, the Spanish verb “exigir” should be translated
as “urge” or “exhort,” rather than “demand,” making the sentence in dispute read: “I urge that
you vote NO on December 1, 2011.”
At the hearing, much testimony and evidence was taken regarding the meaning of the
Spanish verb “exigir.” I asked the Spanish language interpreter during the hearing to translate
the sentence in question using “common, everyday Spanish as used by Spanish speakers in the
State of Arizona.” The interpreter translated the sentence as follows: “I demand that you vote
no on December 1, 2011.” However, when interpreting the testimony of both Marta Magallon
and Evangelina Villegas, two Spanish speaking employees, as to their understanding of the
sentence, the same interpreter used the word to “exhort,” rather than to “demand.” When the
interpreter was asked as to why the discrepancy, she responded as follows: “I believe when
translating or interpreting the spoken word, sometimes the speaker’s inflection may alter the
slight nuance of the word, which is why I chose exhort. In the written word, I have just what it
says, but in the spoken word there is always that nuance that can be picked up and that’s why I
chose, which essentially the words mean the same things, one’s a little degree more assertive
than the other and I picked that up from the speaker’s inflection.” She went on to say, “Actually
here, which is the word to demand, could be anything from demand, to ask, to exhort, to require,
so there is many different meanings.”
Both Magallon and Villegas testified that they were frightened after receiving the letter
from Tyler, believing that they could be fired if they voted for the Union. They said that they felt
they were being told to vote against the Union, and they shared their fear with other employees.
Finally, a number of pages from Spanish/English dictionaries were admitted into
evidence. The McGraw-Hill Spanish and English Legal Dictionary gives the definition of “exigir”
as, “To demand, command, order, require.” (G. C. Ex. 8.) Webster’s New World Concise
Spanish Dictionary gives the definition of “exigir” as, “to demand” or “to call for, to require.”
(G.C. Ex. 9.)
Talancon admitted that his Spanish was weak. Regarding this particular translation,
which he drafted, he testified, “It was kind of simple. It is elementary translation. It is not that
great.” Never-the-less, he said that he believed that “exigir” meant urge or exhort.
Based on the evidence presented, I am convinced that the word “exigir,” as used in the
Spanish language letter expressed a command and that “demand” is a better translation than
“urge” or “exhort.” While I recognize that the word “exigir” may have shades of meaning in
Spanish corresponding to the range identified by the interpreter, I believe that the use of the
word in the letter fell within the forceful, commanding end of that spectrum. The pages from the
two Spanish/English dictionaries admitted into evidence translate the word as “demand” and do
not even mention the more gentle senses described by the interpreter. This indicates to me that
the imperative sense is predominant. Further, the interpreter gave the common, regional
translation as “demand.” Aside from being good evidence of what the word means to the
Tolleson plant employees, there is no disparity between the dictionary definition and local
usage. Finally, the commanding sense is consistent with the reaction of the employees
reported by Magallon and Villegas. The words “I demand” used by a boss inspire fear in a way
that the words “I urge” or “I exhort” do not.
JD(SF)-45-12
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I am of the view that the Spanish language letter sent to Spanish speaking employees,
of which there were approximately 30, in mid-November of 2011, threatened those employees
with unspecified reprisals by “demanding” that they vote “no” in the election. This demand,
made in the name of the general manager of the facility, reasonably had a tendency to coerce
employees into voting against the Union based on their fear of the consequences of defying
Tyler’s demand. In the context of the workplace, employees naturally take any demand made
by a manager or supervisor very seriously. Here, that is evidenced by the fear and concern that
Tyler’s demand instilled in Magallon, Villegas, and other employees they spoke with about the
letter.
A threat need not be explicit to violate the Act. In Martech MDI, 331 NLRB 487, 500
(2000), the employer’s order to “knock it off” regarding union sympathies was found to contain
an implied threat in violation of Section 8(a)(1) of the Act. Further, the threat need not specify
the reprisal that will be taken against the employees. In Valleydale Packers, Inc., 238 NLRB
1340, 1343 (1978), the Board held that the employer’s warning that an employee “had better
leave it [the Union] alone,” constituted an implicit threat to the employee, although the exact
reprisal against the employee that was implied in the threat was not spelled out.
It is immaterial what Tyler’s intent was, or what the English language version of the letter
said. What matters is whether Talancon’s Spanish translation of the letter had a tendency to
interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. I believe
that it did. Accordingly, I conclude that Tyler’s letter mailed to employees in mid-November of
2011, violated Section 8(a)(1) of the Act, as alleged in complaint paragraph 5(g).
4. The Actions and Statements of Fabian Franco
Complaint paragraphs 5 (h)(1), (2), and (3) allege that in about mid-November 2011, the
Respondent, through production supervisor Fabian Franco, interrogated employees about their
union and other concerted activities; threatened employees with reduced benefits if the Union
was selected as the employees’ collective bargaining representative; and threatened its
employees with unspecified reprisals because they engaged in union and other concerted
activities. In support of these allegations, counsel for the General Counsel offered the testimony
of employee Evangelina Villegas.
According to the testimony of Villegas, approximately three weeks before the election,
she was in the production room with her shift supervisor, Franco. The two were alone and she
was working when Franco asked her, “What do you think about the Union?” Villegas testified
that she responded that she had never previously worked with a union. She contends that
Franco answered, “The Union wasn’t good because it would take away benefits, we’d get paid
less, and would take away our vacations.” After hearing that, Villegas asked Franco, “If the
Union’s not good and they’re gonna take way our benefits, and they are going to pay us less,
wouldn’t that benefit the company?” Allegedly, Franco responded that, “Portola had the money,
not the Union.” According to Villegas, the conversation ended with Franco saying that if she
had any other questions about the Union, she should seek him out and ask. On cross-
examination, Villegas denied that Franco’s statements were made in the context of explanations
of the bargaining process, or Franco’s personal experience as a union member or supervisor in
an organized facility.
While some of her testimony was a little obtuse, I think it obvious that what Villegas was
contending that Franco said was that if the Union won the election, the Respondent would
respond and retaliate by reducing wages and benefits. Nothing else could have been
reasonably intended when Franco added that the Employer had the money, not the Union. In
JD(SF)-45-12
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this context, “money” meant “power.”
Franco testified that in the month preceding the election, he had only one conversation
with Villegas about the Union or the election. This conversation occurred a few days before the
election and was very brief. According to Franco, he simply reminded Villegas to vote in the
election, and said to her that it was none of his business how she voted. He categorically
denied making threats or promises to employees or asking employees about their thoughts and
feelings regarding the Union.
It is not possible to reconcile the two versions of the conversation told by Villegas and
Franco. One of them is not telling the truth. Counsel for the Respondent argues that Franco
should be credited as he is no longer employed by Portola, having voluntarily resigned to
relocate to a cooler climate, and, therefore, as a disinterested witness, had no reason to
fabricate. See e.g. Vegas Village Shopping Corp., 229 NLRB 279, 282-283 (1977); Yaohan of
California, 280 NLRB 268, 278 (1986); W. R. Grace, 240 NLRB 813, 820 (1979). On the other
hand, the General Counsel contends that Villegas should be credited as she is a current
employee who is willing to testify against her employer’s interests, potentially jeopardizing her
job, which allegedly demonstrates her willingness to tell the truth. Both arguments are logical
and have some merit.
However, I credit the testimony of Villegas. I view her story as too detailed and specific
to be purely a product of her own imagination. Further, for the most part, she held to her
account on cross-examination. Franco does not acknowledge that the main substance of the
conversation even took place. In my view, this is more improbable than Villegas’ testimony
about the content of the conversation. The context in which Villegas contends the conversation
occurred seems logical and has the ring of authenticity to it. Accordingly, I will credit Villegas’
version of the conversation.
In asking Villegas what she thought of the Union, Franco was engaged in unlawful
interrogation. Looking at the “totality of the circumstances” as set forth in Rossmore House,
supra, and the Bourne factors, as found in Bourne V. NLRB, supra, I find that Franco’s question
was coercive. Franco and Villegas were alone on the production floor, Franco was Villegas’
immediate supervisor, the question of what she thought about the Union was highly intrusive,
and Villegas, who was a union supporter, was clearly afraid to be honest with Franco and tell
him the truth. Under these circumstances, Franco’s question would reasonably have had the
affect of chilling Villegas’ interest in engaging in union activity. As such, it constituted a violation
of Section 8(a)(1) of the Act, as alleged in complaint paragraph 5(h)(1).
Further, Franco continued to violate the Act during the conversation when he stated that
the Union was no good and, implying that if the Union won the election, employees would lose
benefits, that employees would be paid less, and that they would lose their vacations. This was
coupled with Franco’s statement that it was the Employer who had the money, not the Union.
There was nothing said about the vagaries of collective bargaining or about the bargaining
process in general, merely the implication that if the Union won the election, some bad things
would happen, and that the Employer held the economic power. What this reasonably said to
Villegas was that if the Union won the election, the Employer would retaliate by reducing wages
and benefits. As such, it constituted a not very subtle threat by the Respondent, through
Franco, to reduce benefits and wages if the Union was selected as the collective bargaining
representative. Certainly such a threat would tend to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. This constitutes a violation of Section
8(a)(1) of the Act, as alleged in complaint paragraph 5(h)(2).
JD(SF)-45-12
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The General Counsel alleges in complaint paragraph 5(h)(3) that during this same
conversation between Villegas and Franco, that Franco threatened her with unspecified
reprisals because the employees engaged in union and other concerted activity. However, I
have no idea what facts allegedly support the General Counsel’s contention. To the extent that
Franco made threats to Villages, it was to reduce wages and benefits, which I have just
discussed. This was a specific threat of a reprisal, not an unspecified threat. If anything, this
allegation is simply a repetition of the earlier allegation. As such, it is duplicative. Therefore, I
shall recommend to the Board that complaint paragraph 5(h)(3) be dismissed.
The General Counsel alleges in complaint paragraph 5(i) that in about mid-November
2011 the Respondent, by Franco, solicited employee complaints and grievances, and promised
its employees increased benefits and improved terms and conditions of employment if they
rejected the Union as their collective bargaining representative. In support of this allegation,
counsel for the General Counsel offers the testimony of Evangelina Villegas, who testified that
in the month of November the employees on her shift started having to attend meetings with
supervisor Franco towards the end of each shift. According to Villegas, Franco said that the
reason for these meetings was to “talk about the problems with the machines,” and also so that
“we would get more attention from our employers.”
Tim DeCrow testified about “production meetings” with employees that started in
October of 2011. However, on cross-examination by counsel for the General Counsel, he
admitted that these meetings actually started in November of 2011, as was reflected in an
affidavit that he had previously given to the Region. Under cross-examination, DeCrow
admitted that these meetings were also used for training, to discuss safety issues, and to talk
about the upcoming union election. Beginning in November, these meetings were held on every
shift, which amounted to 3 meetings with employees every day.
In any event, in my view, counsel for the General Counsel has failed to offer sufficient
evidence to support a violation of the Act regarding the allegation that starting in November the
Respondent solicited employee complaints and grievances, and promised its employees
increased benefits and improved terms and conditions of employment if they rejected the Union.
In her post-hearing brief, counsel stated that “witness after witness, including DeCrow and
Franco, testified that the meetings began in November.” But, the only employee witness whose
testimony is referenced by counsel is Villegas. Further, nothing in the testimony of Villegas,
DeCrow, or Franco indicates that grievances or complaints were solicited at these meetings and
that promises were made to remedy complaints. Villegas’ testimony regarding these meetings
was confusing, somewhat incomprehensible, vague, and without substance. Her statement that
Franco said “we would get more attention from our employers,” makes no sense to the
undersigned. I have no idea what Villegas was trying to say, and counsel failed to clarify it with
further questioning.
Accordingly, as the General Counsel has failed to meet her burden of proof and support
this allegation by a preponderance of the evidence, or by any other standard of proof, I shall
recommend to the Board that complaint paragraph 5(i) be dismissed.
5. Tim DeCrow’s Pre-Election Statements
Complaint paragraph 5(j) alleges that in late November 2011, the Respondent, by Tim
DeCrow, threatened employees with unspecified reprisals, if they selected the Union as their
collective bargaining representative. According to the testimony of employee Marta Magallon,
at the end of a shift meeting, with supervisor Fabian Franco present, production manager
DeCrow addressed the employees on her shift. Allegedly, referring to the soon to be held
JD(SF)-45-12
35
election, DeCrow said that, “he couldn’t tell us whether to vote yes or no, but to vote, keeping in
mind the wellbeing of our families.” DeCrow spoke in English, with Franco translating his words
into Spanish. Magallon testified that as they left the plant, employees talked about DeCrow’s
words, and that they were scared about losing their jobs, and wondered how they would feed
their families. This was the only evidence offered by counsel for the General Counsel in support
of this allegation.
Two other employees testified about the end of the shift meeting where DeCrow spoke.
According to Herlinda Cervantes, in referring to the election, DeCrow told the assembled
employees that, “we were all big and [that] was a decision we were going to have to make.” By
the word decision, Cervantes indicated that she understood it meant to vote “yes or no.”
Evangelina Villegas testified that she attended the meeting where DeCrow spoke. According to
Villegas, DeCrow said that, “he could not tell us who to vote for, but just to keep in mind that we
should vote for the [party] who could help us the most and who would help our families.”
The day before the 24-hour period preceding the election, DeCrow attended an end of
shift meeting. According to his testimony, regarding the election, he told the employees that
they had all “been friends for a long time,…[and they should] remember their relationships with
each other.” Further, he told them that they “would have [their] own situations, [their] own
decisions to make, and each one of us has to make our vote based on what is best for us, and
what is best for our families.”
In fact, there is really not much of a difference between what Magallon, Cervantes,
Villegas, or DeCrow claim was said by DeCrow at the meeting in question. Even accepting
Magallon’s testimony as accurate, all she claims that DeCrow said was that in voting, “to keep in
mind the wellbeing of [their] families.” I see nothing improper in that statement. It is not a threat
of any reprisal, unspecified or otherwise. A representation election was a big event at the plant.
Collective bargaining would, of course, potentially affect the wages, hours, and working
conditions of the employees, and collaterally of their families. I fail to see how reminding the
employees of the importance of the election to themselves and their families could constitute a
threat of reprisal. For Magallon or other employees to have reached the conclusion that
DeCrow’s statement was a threat of reprisal against them if they voted in favor of the Union or if
the Union won the election was, in my view, unreasonable.
Further, there is ample Board case authority for the proposition that DeCrow’s statement
that employees should vote in their own best interests, or those of their families, does not
constitute a violation of the Act. See e.g. Goldtex, Inc., 309 NLRB 158, 163 (1991) (statement
to employee “that it would be in his best interest to vote no, that the Union could not do anything
but charge dues,” was not coercive.), enfd. mem. 16 F.3d 409 (4th Cir. 1994); Liberty Mutual
Insurance Co., 194 NLRB 1043, 1044-1046 (1972) (memo to employees stating that selecting a
union “would not be to your best interest and, in fact, could deter and hamper your personal
relation with your Company” is at most an argument containing no threat or warning).
In Werthan Packaging, Inc., 345 NLRB 343, 344 (2005), the Board ruled that the
employer’s statement that it was in employees’ and their families’ best interest to vote “no” was
not threatening. “An employer’s telling an employee that it would be in that person’s or family’s
‘best interest’ to vote against the union, unaccompanied by threats, is too vague to warrant a
finding that the employer was threatening the employee.” Id. “At most, [the employer] was
expressing her opinion that [the employee and his] family did not need the Union.” Id. The
employer “was free to express the view that unionization would not be in the best interests of
the employees and their families.” Id.
JD(SF)-45-12
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The Werthan case is directly on point. DeCrow’s statements at the shift meeting did not
interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Those
statements did not constitute a threat of reprisal for voting in favor of the Union or for engaging
in other union activity. He merely advised employees that their vote was theirs to make, and he
lawfully stressed the importance of their vote by urging them to consider their own best interests
and those of their families. DeCrow’s statements were permissible under Section 8(c) of the
Act. Accordingly, I shall recommend to the Board that complaint paragraph 5(j) be dismissed.
6. Employee Handbook
The General Counsel alleges in paragraph 5(m)(1) of the complaint, as set forth in the
Motion to Amend the Complaint (G.C. Ex. 2), that since about April 21, 2011, the Respondent
has maintained the following overly-broad and discriminatory rule in its Employee Handbook,
dated January 1, 2011: “Section 1008; Corrective Actions: The following behaviors are also
prohibited: Violations may result in corrective action up to and including immediate termination:
20. Failure to obtain permission to leave work, or your workstation, for any reason during
normal working time.” (G.C. Ex. 3.) The Respondent denies that this provision is in any way
unlawful.
In determining whether the existence of specific work rules violate Section 8(a)(1) of the
Act, the Board has held that, “the appropriate inquiry is whether the rules would reasonably tend
to chill employees in the exercise of their Section 7 rights.” Lafayette Park Hotel, 326 NLRB
824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). Further, where the rules are likely to have
a chilling effect on Section 7 rights, “the Board may conclude that their maintenance is an unfair
labor practice, even absent evidence of enforcement.” Id. See also, Blue Cross-Blue Shield of
Alabama, 225 NLRB 1217, 1220 (1976).
The Board has further refined the above standard in Lutheran Heritage Village-Livonia,
343 NLRB 646, 646 (2004), by creating a two-step inquiry for determining whether the
maintenance of a rule violates the Act. First, if the rule expressly restricts Section 7 activity, it is
clearly unlawful. If the rule does not, it will none-the-less violate the Act upon a showing that:
“(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.” Id, at 647; See Northwestern Land Services, Ltd., 352 NLRB
744 (2009) (applying the Board’s standard in Lutheran Heritage Village Livonia, supra at 647).
On the issue before me, counsel for the Respondent has correctly recited the current
state of the law in his post-hearing brief, and has convincingly established that the provision in
question is not unlawful. As counsel points out, the provision prohibits the “failure to obtain
permission to leave work, or your workstation, for any reason during normal working time.”
(emphasis added by the undersigned). The term “working time” is critical to this analysis. In the
Respondent’s Handbook, the term “working time” is specifically defined as “the period of time
scheduled for the performance of job duties, not including meal times, break times or other
periods when employees are properly not engaged in performing their work duties.” (G.C. Ex.
3, p. 51, Section 1104.)
As counsel points out, in an industrial environment, such as Portola, where equipment is
continuously running and production requires constant attention, promoting employees’
presence at their workstations during working time is critically important. Again, the prohibition
only involves leaving the work station without permission during normal “working time.” It is a
well worn and established maxim that “work time is for work.” Ling Products Co., Inc., 212
NLRB 152, 156 (1974). It is highly unlikely that employees will misconstrue the term “working
JD(SF)-45-12
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time” to include lunch and break times, which times are typically encompassed and
differentiated by the term “working hours.”
Further, there is no reasonable basis for inferring a restriction on Section 7 activity as a
result of the rule. As the rule in question does not refer to Section 7 activity, the Board will not
normally conclude that a reasonable employee would read the rule to apply to such activity
simply because the rule could be interpreted that way. Lutheran Heritage Village, 343 NLRB at
646. See Fiesta Hotel Corp., 344 NLRB 1363, 1367 (2005) (“in determining whether a
challenged rule is unlawful, the rule must be given a reasonable reading, phrases should not be
read in isolation, and improper interference with employees’ right is not to be presumed.”)
A very similar rule as that before me was approved by the Board recently in 2 Sisters
Food Group, Inc., 357 NLRB No. 168, slip. op. at 3 (2011). In that case, the ALJ found a rule
over-broad that prohibited “[l]eaving a department or the plant during a working shift without a
supervisor’s permission,” and “[s]topping work before the shift ends or taking unauthorized
breaks.” The Board disagreed and reversed, applying the standard used in Lutheran Heritage
Village. In its analysis, the Board first found that the rule did not explicitly restrict Section 7
activities, as it “only prevent[ed] an employee from taking unauthorized leaves or breaks and
does not expressly restrict concerted action by employee.” Further, the Board concluded that
an employee reading the rule would not reasonably construe it to prohibit conduct protected by
Section 7.
In analyzing the rule in the 2 Sisters case, the Board distinguished Labor Ready, Inc.,
331 NLRB 1656, 1656 fn.2 (2000), in which it held that a rule prohibiting “walk[ing] off” the job
was unlawfully overbroad because employees reasonably would understand such a rule to
prohibit the restriction on “walking off” as synonymous with striking. The rule involved in 2
Sisters, as with the similar rule at issue before me, prohibited only leaving a department or the
employer’s plant without permission, stopping work before a shift ends, or talking unauthorized
breaks. As such, it should not confuse employees or reasonably lead them to believe that their
right to engage in Section 7 activity is being limited in any way.
I believe that 2 Sisters is controlling on this issue and represents the current state of
Board law. Therefore, I find nothing unlawful, overly-broad, or discriminatory regarding the rule
in question. Accordingly, I shall recommend to the Board that paragraph 5(m)(1), as set forth in
the Motion to Amend Complaint (G.C. Ex. 2.), be dismissed.
Paragraph 5(m)(2) of the complaint, as set forth in the Motion to Amend Complaint (G.C.
Ex. 2.), alleges that since about April 21, 2011, the Respondent has maintained an overly-broad
and discriminatory rule in its Employee Handbook, dated January 1, 2011, which reads as
follows: “(2) Section 1404: Media Relations: Policy Statement---Employees should not provide
any information regarding the Company to the media (e.g. television, radio and newspaper). All
requests for information from the media regarding any aspect of Portola must be referred to the
Chief Financial Officer or President. All press releases, publications, articles and any other
documents for release to the media must be approved in advance by the Chief Financial
Officer.” The Respondent denies that this provision is in any way unlawful.
I am of the view that the rule in question is on its face overly-broad and, thus, unlawful.
A rule that limits the ability of employees to discuss work related issues with the media
constitutes an unlawful restriction on employees who wish to engage in concerted activity with
others, in this case through the media. See, e.g. Crown Plaza Hotel, 352 NLRB 382, 386
(2008) (media policy prohibiting employees from commenting on “any incident” unlawful where
not restricted to when medial seeks the employer’s “official comments”); Leather Center, 312
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NLRB 521, 525, 528 (1993) (Board adopts ALJ finding that a handbook provision allowing only
a company officer to comment to the media, and requiring all media contacts be referred to a
company official a violation).
Certainly one can imagine a situation where employees who are unhappy with their
wages, hours, or terms and conditions of employment maybe interested in bringing their
complaints to the attention of the local press, with the hope that adverse publicity, as reported in
the press, may serve to embarrass the employer, and, thus, exert enough pressure to motivate
the employer to improve working conditions. This is the essence of concerted activity, and, as
protected conduct, cannot be abridged.
Counsel for the Respondent’s statement in his post-hearing brief that “nowhere” does
the policy purport to restrict employees from communicating to the media about matters of
concern to them, and does not restrict the expression of views about employment conditions,”
ignores a reasonable reading of that policy. The Board has held that “[t]he test of whether a
statement is unlawful is whether the words could reasonably be construed as coercive, whether
or not that is the only reasonable construction.” Double D Construction Group, Inc., 339 NLRB
303, 304 (2003). In any event, even if the rule is ambiguous, any ambiguity in a work rule that
may restrict protected concerted conduct “must be construed against the [employer] as the
promulgator of the rule.” Ark Las Vegas Restaurant, 343 NLRB 1281, 1282 (2004) (an
ambiguity in a “no-loitering” rule construed against the employer). See also Norris/O’Bannon,
307 NLRB 1236, 1245 (1992).
I conclude that a plain and reasonable reading of the rule in question would serve to chill
employees’ interest in engaging in lawful concerted activity by alerting the press to work related
concerns regarding wages, hours, and terms and conditions of employment. As such, the very
maintenance of said rule, without any actual enforcement, interferes with, restrains and coerces
employees in the exercise of their Section 7 rights. Accordingly, the maintenance of the rule in
question constitutes a violation of Section 8(a)(1) of the Act, as alleged in complaint paragraph
5(m)(2), as referenced in the Motion to Amend Complaint. (G.C. EX. 2.)
7. The Flyer
In complaint paragraphs 5(n)(1), (2), and (3), as is reflected in the Motion to Amend
Complaint (G.C. Ex. 2.), the General Counsel alleges that in about mid-November 2011, the
Respondent, by Fabian Franco and Tim DeCrow, in a flyer: (1) unlawfully disparaged the Union
and those that supported the Union by telling employees “don’t be a loser!”; (2) threatened
employees with loss of benefits if they supported the Union; and (3) informed its employees that
it would be futile for them to select the Union as their bargaining representative. The
Respondent denies that its campaign flyers contained any statements that would constitute
unfair labor practices.
Counsel for the General Counsel indicates in her post-hearing brief that the flyer in
question, which was written in both English and Spanish, was posted at the Respondent’s
facility, and also handed out by Franco during his “after-shift” meetings. Counsel states that the
alleged offending flyer is in evidence as G.C. Ex. 11, which is a two page document, one page
in English and one in Spanish. However, in counsel for the Respondent’s post-hearing brief,
when he addresses this issue, he refers to a Spanish language flyer that is in evidence as G.C.
Ex. 19. The text of this one page Spanish language flyer was translated on the record into
English by the Spanish language interpreter during the hearing. So, in addressing these
allegations, the General Counsel and the Respondent are referring to different flyers. Despite
this discrepancy, the legal issues in question are addressed by both parties, although the
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content of the flyers is different.
I will direct my attention to the flyer in evidence as G.C. Ex. 11, as this is, according to
counsel for the General Counsel, the alleged offending flyer, and the General Counsel has the
burden of proof. The flyer is headed with the statement, “Don’t be a loser! Say No to the Union.”
It is followed by numerous statistics regarding such matters as: percentage of organized
workers in the workforce, numbers of union certification elections held, number of union election
victories; number of union election petitions withdrawn; and the number of union decertification
elections held and the results. The one page flyer has a concluding paragraph, which asks the
question, why if unions are successful are the numbers of union members declining? The final
sentence reads: “Actions speak for themselves: union representation is a game in which you will
always LOSE. Vote NO X” (emphasis as in original). On the Spanish language version only,
there are black and write drawings of a soccer player kicking a ball, a soccer ball going into a
goal, a baseball player hitting an enlarged baseball, and a basketball hoop. (G.C. Ex. 11.)
Counsel for the General Counsel contends that the flyer disparages the Union and those
that support it by suggesting that they are “losers,” by suggesting the futility of representation,
and by implicitly saying that benefits will be lost if the Union wins the election. That is all
nonsense. The flyer says nothing of the sort. The language of the flyer does not have the
implicit meanings that the General Counsel attributes to it.
This flyer constitutes election campaign propaganda. It is totally permissible under
Section 8(c) of the Act. It is the Employer’s expression of views, disseminated in writing, which
do not contain a threat of reprisal, or force, or promise of benefit. It does not constitute an unfair
labor practice.
The Respondent’s employees are adults, and certainly they understand that campaign
propaganda constitutes the view point of a particular party to an election, and need not, and
should not be accepted at face value as accurate. It is axiomatic that the Board does not police
the correctness and accuracy of every statement made by an Employer during an election
campaign, so long as those statements do not contain a threat of reprisal, or force, or promise
of benefit. See Sears, Roebuck & Co., 305 NLRB 193 (1991) (“Words of disparagement alone
concerning a union or its officials are insufficient for finding a violation of Section 8(a)(1)”). The
communication in the flyer under review is of the type routinely used in election campaigns,
where the Board leaves it up to employees to shift through the parties’ propaganda, reach their
own conclusions about the relative merits, and make an informed choice. See Shopping Kart
Food Market, 228 NLRB 1311, 1313 (1977) (“We believe that Board rules in this area must be
based on a view of employees as mature individuals who are capable of recognizing campaign
propaganda for what it is and discounting it.”)
It is not unlawful, disparaging, or denigrating to the Union or its supporters to point out
the risks of union representation and collective bargaining and to urge that those risks be
avoided. See, e.g. Poly-America, Inc., 328 NLRB 667, 669 (1999), affd. in part and revd. in part
260 F.3d 465 (5th Cir. 2001) (“It is well settled that Section 8(c) …gives employers the right to
express their views about unionization or a particular union as long as those communications do
not threaten reprisals or promise benefits”); Children’s Center for Behavioral Dev., 347 NLRB 35
(2006) (“an employer may criticize, disparage or denigrate a union without running afoul of
Section 8(c)(1), provided that its expression of opinion does not threaten employees or
otherwise interfere with the Section 7 rights of employees”); Trailmobile Trailer, LLC, 343 NLRB
95 (2004) (argument involving disparaging remarks is left routinely to the good sense of
employees).
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The flyer in question does not threaten reprisals or promise benefits, nor does it imply
that union representation or collective bargaining is futile. It does not interfere with, restrain, or
coerce employees in the exercise of their Section 7 rights. It is not the responsibility of the
Board to hold the hands of the potential voters and police the accuracy of the Employer’s
election propaganda. The voters are responsible adults who should be able to distinguish truth
from fiction and likely understand that not everything written or said during an election campaign
is accurate. As long as the Employer is not threatening reprisals or promising benefits, the
Board will not interject itself into the campaign. As mentioned above, the Board has traditionally
ruled that election campaigns are best evaluated by the voters themselves. See, e.g. Shopping
Kart Food Market, 228 NLRB, supra; Midland Life Insurance Co., 263 NLRB 127, 133 (1982).
Accordingly, I shall recommend to the Board that complaint paragraphs 5(n)(1), (2), and (3), as
reflected in the Motion to Amend Complaint (G.C. Ex. 2.), be dismissed.
8. The Video
It is alleged in complaint paragraphs 5(o)(1), (2), and (3), as referenced in the Second
Motion to Amend Complaint (G.C. Ex. 26.), that in late November 2011, the Respondent, by
playing a video at the Respondent’s facility during working hours, which was viewed by
employees: (1) threatened employees by implying that the Union was behind the vandalism and
violence depicted on the video; (2) disparaged the Union by implying that the Union was behind
the vandalism and violence depicted on the video; and (3) threatened employees with
termination by telling employees that the Union could request their termination in “right to work”
states. The Respondent denies that this video indicated or implied anything orally or visually
that could reasonably constitute either an unfair labor practice or objectionable conduct.
LRI provided the Respondent with anti-union videos. There were eight videos in total,
four in English and four Spanish counterparts. The Spanish and English “pared” versions
covered roughly the same material, although the individual “employees” giving interviews or
testimonials were different. The Spanish videos played in the lunch room and the English ones
ran on a monitor in a hallway. Each video was played continuously for twenty-four hours, and
then substituted for a different one the next day. The videos played at a very high volume,
uncomfortably high such that Evangeline Villegas mentioned the noise three times in her
testimony, and indicated that she sometimes left the lunch room to avoid it. Villegas also
testified that the video disheartened her and her coworkers and made them afraid. The video
played at the hearing was approximately twenty minutes long, which would mean it would have
been repeated seventy-two times in a twenty-four hour period.
Two of these videos are the basis of these unfair labor practice allegations and
objections to the election. Both videos were screened at the hearing, with the Spanish
language video being translated by the interpreter into the record, and the English language
video directly recorded into the record. A transcript of the English video was also admitted into
evidence. (Un. Ex. 8.) The English video is entitled, “Your Job on the Line” and the Spanish
video is entitled, “Job Security and Strikes.”
The videos are presented in a newscast style, and alternate between two “anchors”
speaking and with interviews of “employees” in the field. The videos discuss the alleged
hardships of employees involved in strikes and the alleged problems for employees created by
labor organizing and collective bargaining. There is talk on the video of permanent
replacements, boycotts, and plant shutdowns. Some of the subjects broached are in legal form.
For example, the discussion of permanent replacements quotes from a Board decision. Other
parts of the video consist of discussions of actual organizing campaigns and of unionized
facilities. These include interviews with persons, purported to be actual union organizers and
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represented employees, who “volunteered” to share their experiences for the camera. Clearly,
the intent of the video is to place unions, union representation, and collective bargaining in a
very negative light. The aim of the video is obviously to convince the viewer not to support a
union organizing campaign, in this instance the soon to be conducted election at Portola.
While the two videos are very similar, they are not identical. Counsel for the General
Counsel makes it clear in her post-hearing brief that it is the Spanish language video that
allegedly violates the Act. She contends that the video depicts acts of vandalism with the
distinct impression being left with the viewer that the Union was responsible for this violence.
Further, she contends that the video implies that unions have the ability, unrestricted, to ask an
employer to fire an employee who does not pay union dues. Allegedly, the video misstates the
law, as it does not distinguish between a “right to work” state such as Arizona and a non-right to
work state.
However, in both the post-hearing briefs from counsel for the Union and counsel for the
Respondent, it appears that they are addressing issues in the English language video. My
review of the evidence strongly suggests that counsel for the General Counsel has simply made
an inadvertent error in referring to the Spanish language video, and it is actually the English
language video, “Your Job on the Line,” which alleged contains the offending scenes and
language. Therefore, I will address my comments and analysis to that video.
At one point in the video, there is discussion regarding a strike that occurred at a
unionized employer, Basic Vegetables in King City, California. It recounts a break down in
collective bargaining, resulting in a strike. Employee interviewees describe how the strike lasted
much longer than expected and created tension in the community, especially between strikers
and those employees who crossed the picket line. Those who crossed the picket line describe
harassment, insults, threats, and broken windows. One of the purported news anchors then
states: “Now months into the strike, daily reports of violence and vandalism have become
common throughout the town. King City was a community being torn apart by a union strike.
Local union leaders continued to claim the company was losing money and would soon give in
to their demands.” While he is talking, the video on screen depicts a car being vandalized.
There is a date and time stamp on the screen that reads, October 15th 1999, and shows
1:13 am. The parties stipulated on the record as to specifically what the screen depicted, but
basically it shows a vehicle being vandalized by two individuals. They appear to be breaking
the vehicle’s windows, and perhaps damaging the tires. The scene is somewhat “grainy,” and
appears to be filmed through a window. After viewing this scene, the undersigned was unable to
determine whether it was an actual depiction of a car being vandalized in real time, or a
dramatization of an event filmed for demonstrative purposes. In any event, I do not believe it
matters for purposes of resolving the alleged unfair labor practices.
The General Counsel alleges that the scene in question implies that the Union was
behind the vandalism, and, thus, was threatening to the employees at Portola and disparaging
of the Union. However, in my view, that contention is highly inaccurate. Both from the narrative
and visual scene on the video, it would appear to any reasonable person that the vandalism
being shown and reported related solely to the strike at Basic Vegetables in King City,
California. The “anchor man” is reporting on that strike and has clearly identified it as the one
involving Basic Vegetables. The date and time stamp that appears on the screen as the
vandalism is being depicted shows a date some twelve years earlier. Further, there is
absolutely nothing on the video as would connect the Union organizing the workers at Portola in
Tolleson, Arizona with a strike at a different business, located in King City, California, some
twelve years earlier.
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I simply fail to see any connection between the events depicted on the video screen and
the Union’s organizing campaign at Portola. I do not believe that any reasonable employee who
viewed the video at Portola prior to the election would find any nexus between the Union and
the vandalism depicted on the video. I do not believe that by showing the video, the
Respondent was implying that the Union was behind the vandalism depicted on the screen,
and, concomitantly, no reason for employees to feel threatened, or any reason for anyone to
conclude that the scene disparaged the Union. Further, there is no reasonable basis for
employees to conclude that simply because there was allegedly violence associated with a
strike in California some twelve years earlier, that they should fear violence in connection with
the organizing campaign at Portola. Such alleged implications are unreasonable, and “a bridge
too far.” Accordingly, I shall recommend to the Board that complaint paragraphs 5(n)(1) and (2),
as reflected in the Second Motion to Amend Complaint, be dismissed.
Regarding the General Counsel’s allegation that the video “threatened employees with
termination by telling employees that the Union could request their termination in ‘right to work’
states” (complaint paragraph 5(n)(3), as reflected in the Second Motion to Amend Complaint,
G.C. Ex. 26.), counsel for the General Counsel is rather cryptic in offering evidence in support of
this contention. In her post-hearing brief, counsel for the General Counsel devotes only a very
short paragraph in support of this complaint allegation. She says, “[T]he video implies that
unions have the ability, unrestricted, to ask an employer to fire an employee who does not pay
his or her dues. This video makes no distinction between a ‘right to work’ state such as Arizona
or a non-right to work state where a union may or may not have that ability.” Unfortunately,
counsel does not indicate where in the video this alleged offending language appears.
However, my review of the English language video transcript (Un. Ex. 8.) discovered the
following narrative. In the video the female anchor explains: “Some actions taken by unions
directly threaten the job security of members. Here’s a letter from a union to an employer. The
first paragraph states that an employee has failed to become a member of the union and pay
dues. The second paragraph says, ‘We therefore request that in accordance with the union
contract, this employee be discharged.’” The anchor then continues, “A request like this is not
unusual. People accused of violating certain provisions of the union’s constitution, local bylaws,
or collective bargaining contract can be let go by their employer at the union’s request. During
contract negotiations, unions bargain hard for this kind of power.”
Counsel for the General Counsel offered no case law or argument in support of this
allegation. However, counsel for the Respondent did. The Respondent argues that at most
what exists here is a failure to explain the right to work provision in Arizona. The case law cited
by counsel, Shopping Kart Food Market, supra at 1313; Midland National Life Insurance Co.,
supra at 133, stands for the proposition that the Board does not generally probe into the truth or
falsity of the parties campaign statements. Further, the “mere fact that a party makes an untrue
statement, whether of law or fact, is not grounds for setting aside the election.” John W.
Galbreath & Co., 288 NLRB 876, 877 (1988). See Furr’s, Inc., 265 NLRB 1300, 1300 fn.10
(1982) (there is “no basis for treating misrepresentations of law differently from other
misrepresentations.”). Nor presumably would it constitute an unfair labor practice.
I am of the view that the video’s failure to provide a more comprehensive discussion and
treatment of Arizona’s right to work law does not make the video unlawful when presented in
Arizona.16 It does not impliedly threaten that any employee of the Tolleson facility will be

16 Apparently this same video is used by LRI and sent to its clients in various states of the
Continued
JD(SF)-45-12
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terminated because of a request from the Union. It remains the responsibility of the potential
employee voters to educate themselves as to the truth or falsity of campaign propaganda,
whether from the Employer or the Union. Accordingly, I find no violation of the Act, and shall
recommend to the Board that complaint paragraph 5(n)(3), as referenced in the Second
Amendment to Complaint (G.C. Ex. 26.), be dismissed.
D. Summary of Conclusions
In summary, I have found that the Respondent violated Section 8(a)(1) of the Act as
alleged in complaint paragraphs: 5(b)(2), (3), (d)(1), (2), (e)(1), (2), (3), (f)(1), (2), (3), (g), (h)(1),
(2), and (m)(2). Further, I have recommended that the following complaint paragraphs be
dismissed: 5(b)(1), (c), (h)(3), (i), (j), (k), (l), (m)(1), (n)(1), (2), (3), (o)(1), (2), and (3).
IV. The Representation Case
A. The Challenged Ballots
As noted earlier in this decision, the Tally of Ballots from the election held on December
1, 2011, showed that there were 3 challenged ballots, a number sufficient to affect the results of
the election. The Union had challenged the ballots of the 3 “process technicians,” Thomas
Turner, Michael Burns, and Gabriel Hernandez, contending that they were not properly included
in the stipulated unit. To the contrary, the Employer contends that the process technicians are
actually “production workers,” and specifically included in the stipulated unit. It is axiomatic that
the Union, as the party challenging the votes of the process technicians, has the burden of proof
and must establish the ineligibility of the challenged voters. I believe that the Union has met this
burden.
The Stipulated Election Agreement entered into by the parties and approved by the
Regional Director on November 7, 2011, provides for a unit of “All full-time and regular part-time
production workers including machine operators, sanitation, and packaging employees…,”
excluding all other employees, including certain named classifications. However, the term
“process technicians” is not listed in either the inclusions or exclusions. Never-the-less, it is
clear that what the Union was seeking in its petition for an election and what the parties agreed
to in the stipulated unit was a group of production workers. Unfortunately, the Employer does
not actually have a classification of employees designated as “production workers.” The Union
contends that the term “production workers” refers to the employees classified as “production
team members,” who are also allegedly known as “operators,” while the Employer contends that
the term “production workers” or “operators” refers to the process technicians, whose status in
the unit is disputed by the Union.
The Board uses a three-step analysis when resolving determinative challenge ballots in
cases involving stipulated bargaining units. First the Board determines whether the stipulation
is ambiguous. Where the objective intent of the parties to the stipulation is clearly and
unambiguously expressed in the stipulation, the Board merely enforces the agreement.
However, if the stipulation is ambiguous, the Board will seek to determine the parties’ intent
through the normal methods of contract interpretation, including by the examination of extrinsic
evidence. Finally, if the parties’ intent still cannot be discerned, then the Board determines the
bargaining unit by employing the normal “community of interest” test. Caesars Tahoe, 337
NLRB 1096 (2002).
_________________________
United States, both right to work and non-right to work states.
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Unfortunately, it appears that the stipulated unit is ambiguous. There is no mention in
the stipulated unit of “process technicians,” either in the classifications included or excluded.
Further, while the term “machine operators” is included in the unit, the Employer does not
actually have such a classification of employees. Therefore, the Board cannot simply enforce
the terms of the stipulation.
Seeking to determine the parties’ intent through the normal methods of contract
interpretation is also problematic. As mentioned, it is obvious from the way the stipulated unit is
described that the Union is basically seeking to represent a group of production workers. But
there is no such classification. The parties agree that the largest group of employees included
in the unit is classified as “production team members.” Out of a total of 44 employees included
on the Excelsior list, 33 were production team members.17 Of the production team members
who testified at the hearing, most of them indicated that they refer to themselves as “operators.”
However, a number of the Employer’s supervisors who testified indicated that they were
unaware that the production team members referred to themselves as “operators,” and that, in
fact, the group that most nearly performed the duties of “operators,” were the process
technicians.
I find this position taken by some of the Employer’s supervisors to be totally
disingenuous. It is inconceivable that with the production team members regularly referring to
themselves as “operators,” the supervisors could be unaware of such. Further, as will be
apparent following a description of the respective work performed by the production team
members and the process technicians, the term “operator” much more closely describes the
work performed by the production team members than it does that work performed by the
process technicians. In my opinion, the effort on the part of the Employer to try and portray the
process technicians as “operators” is merely part of the campaign to have them included in the
stipulated unit so that they might vote in the election.
In any event, because the use of the various terms in question, “production team
member, process technician, and operator,” are somewhat confusing, because the testimony of
the witnesses is somewhat contradictory, and because the parties hold contrary views, I will not
attempt to decide the issue of the parties’ intent through normal methods of contract
interpretation. Rather, I will resolve the question of the determinative challenge ballots through
the Board’s normal community of interest test.
In determining whether employees share a “community of interest,” the Board considers
the following factors: “[W]hether the employees are organized into a separate department; have
distinct skills and training; have distinct job functions and perform distinct work, including inquiry
into the amount and type of job overlap between classifications; are functionally integrated with
the Employer’s other employees; have frequent contact with other employees; interchange with
other employees; have distinct terms and conditions of employment; and are separately
supervised.” United Operations, Inc., 338 NLRB 123, 123 (2002).
Earlier in this decision, I discussed at length the work performed by certain of the
Employer’s job classifications and the way in which those employees interact with each other.
However, for the purpose of establishing the community of interest of the employees comprising
the stipulated unit, it is necessary to restate some of that information.

17 Of the other employees included on the Excelsior list, 4 were team member leads, 3 were
staging team members, 3 were process technicians, and 1 was a sanitation employee.
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The largest group of employees employed at the facility is the “production team
members,” who at the time of the hearing numbered 36. As discussed, those employees refer
to themselves as “operators.” During each shift there are a number of presses in operation.
One production team member is assigned to monitor each press during a shift. Besides
monitoring the production from the presses, production team members pack the caps into boxes
as the caps come off a conveyor belt from the presses. They seal the boxes, label them, and
take the boxes to a central conveyor, which transports them to a staging area.
“Production team leads” work alongside the production team members, relieving the
team members when they go on breaks. The team leads assist the “production supervisors”
who are responsible for the output from the presses. The production team members and the
team leads report directly to the production supervisors.
“Staging team members” receive boxes of caps from the production team members, and
sort the boxes on individual pallets according to the customer and product. They then move the
loaded pallets from the staging area to the warehouse. Staging team members report to the
production supervisors.
The production team members, production team leads, and staging team members all
share a significant community of interest. However, in my view, the process technicians do not
share this community of interest.
The process technicians are primarily responsible for programming into control panels
on the presses the various computerized settings, such as temperature, pressure, and speed,
which affect the production of the various machines. They also provide a daily report on the
performance of the molds, specifically the percentage of individual cavities within each mold that
are functioning properly. It is the steel molds on the presses that contain cavities into which the
plastic is injected. The process technicians are not assigned to a specific press, but, rather,
they circulate around the production floor trouble shooting the presses. Sometimes the process
technicians are required to open up the presses to inspect the cavities and, if necessary, block
off cavities that are not functioning properly. While various witnesses testified differently, the
evidence indicates that the process technicians spend between 40% and 70% of their working
time on the production floor, with the remainder of their time spent in various locations and
offices preparing reports on laptop computers. The process technicians do not report to the
production supervisor, but instead report directly to production manager Tim DeCrow.
Once the process technicians program information into the control panels on the
presses, they have no direct responsibility for the production of the presses. That duty falls to
the production team members, one assigned to each press, who watch that press to ensure it is
functioning properly. If a press is not functioning properly, the production team member
normally does not try and repair it, but will alert the appropriate employee, such as a
“maintenance technician” (mechanic) or process technician. The process technicians have
access to simple hand tools, which they use to inspect the cavities in the molds. The production
team members consider themselves “operators” because they are assigned to specific
machines, watching them produce the product, with the first responsibility to spot a malfunction.
Serious equipment failures are usually repaired by the maintenance technicians, who are
excluded from the unit.
While the process technicians spend approximately half their time on the production
floor, the remainder of their time is spend preparing reports on their laptop computers, usually in
offices that are not individually assigned to them. They will occasionally serve as a replacement
JD(SF)-45-12
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for a production team member who is on break, but normally that duty is performed by the
production team member leads. Production team members, all of whom spend their full working
time on the production floor, must get permission before taking a break, as others must be
assigned to watch their machines while they are gone. The process technicians do not have to
ask permission before leaving the production floor, and they apparently move freely between
the production floor and office space.
Production team members are generally one of the lowest paid classifications at the
facility. Process technicians are a higher paid classification, and, depending on the specific
individual worker, may be paid as much as twice the rate of the production team member. Even
higher paid classifications are the process specialist and process engineer, both of which have
a higher education and level of training. According to production manager DeCrow, the process
technician, process specialist, and process engineer all focus on the performance of the molds,
and the process-related variables that influence that performance. While there is some limited
overlap in the work performed by the process technicians and the production team members, it
seems apparent that the process technicians have considerably more work overlap with the
process specialists and process engineers, who work directly with the molds.
In determining with which employees the process technicians share a community of
interest, it is instructive to review the Employer’s job description for the position of “Process
Technician I.” (Un. Ex. 2.) Some of those duties include: “Working with Process Engineers and
Corporate Engineering to bring new products to our customers in a timely manner; Working with
Process Engineer and Mold Maintenance to effectively refurbish and maintain molds; Helping
out in the day-to-day activities in the mold shop when necessary; Filling in as a supervisor or
mold technician when the need arises; Working independently to improve cycle time and
cavitation on a daily basis; and Giving feedback to mold technicians and supervisors as
necessary.” These duties obviously show a significant overlap with those specialized duties
performed by the process specialist and process engineer. Further, it is clear from that job
description, which requires a “[m]inimum two year technical degree or 3 years of experience
with multi-cavity high speed injection molding” that the position of process technician is much
closer in necessary expertise with that of the process specialist and process engineer than with
that of the production team member, which requires no specialized experience or education.
As noted earlier, the production team members, team leads, staging team members, and
sanitation employee, all of whom it is uncontested are included in the stipulated unit, are
supervised by the production supervisors. On the other hand, the process technicians are
supervised by production manager DeCrow, who also supervises those process specialists and
process engineers who are on GO-Teams.
Based on all the above referenced factors, I conclude that the process technicians do
not share a significant community of interest with the classifications in the stipulated unit. On
the other hand, the process technicians share a greater community of interest with the process
specialists and process engineers. The process technicians are ineligible to vote as not
properly included in the stipulated unit. Therefore, I conclude that the challenges to the ballots
of Thomas Turner, Michael Burns, and Gabriel Hernandez are sustained, and their ballots shall
remain unopened and uncounted.
B. The Objections
As reflected in the Regional Director’s Order Directing Hearing on Challenged Ballots
and Objections and Notice of Hearing (G.C. Ex. 1(o)), there are a number of objections to the
election referred to the undersigned for resolution, some of which are identical to the unfair labor
JD(SF)-45-12
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practices alleged in the complaint. Where the objections are identical to the unfair labor
practices, the issues will not be restated, but only the conclusions previously reached.
Objection Number 1
Objection number 1 involves the letter from plant general manager Tim Tyler sent to the
homes of the Employer’s employees around November 22, 2011, specifically the Spanish
language version of the letter. The objection reads as follows: “On or around November 22,
2011, the Employer stated, in a letter to employees, ‘Te exijo que votes NO en Diciembre 1,
2011.’ The primary definition of the verb ‘exigir’ in the 2009 Oxford Concise Spanish Dictionary
is ‘to demand.’”
This objection was the subject of the unfair labor practice allegation found in paragraph
5(g) of the complaint. It was extensively discussed earlier in this decision. As discussed above,
I found that the Spanish language letter, likely read by the approximately 30 Spanish speaking
employees, threatened those employees with unspecified reprisals by “demanding” that they
vote no in the election. This demand, made in the name of the general manager of the facility,
reasonably had a tendency to coerce employees into voting against the Union based on their
fear of the consequences of defying Tyler’s demand. Accordingly, I concluded that the letter
violated Section 8(a)(1) of the Act. As I have found merit to this unfair labor practice allegation,
concomitantly, I also find merit to objection number 1.
Objection Number 2
Objection number 2 involves the same letter from Tim Tyler referenced above. Again, it
is the Spanish language version of the letter that is alleged to be objectionable. As noted
earlier, each letter was addressed to the individual employee recipient, so that the employee’s
first name was in the salutation. Tim Tyler, the author of the English language version of the
letter, signed the document, which was translated into Spanish by Armando Talancon, the labor
relations consultant.18 This objection relates to the first sentence in the final bullet point in the
Spanish version. (G.C. Ex. 5 & 6.)
At the hearing, the Spanish language interpreter was asked by counsel for the Union to
translate this bullet point, which is actually two sentences long. After a first attempt at the
translation, the interpreter asked to write out her interpretation, and then to make another
attempt at the oral translation. This second translation is the final effort by the interpreter, and
clearly the language with which she was satisfied. This second translation of the two sentences
in the bullet point is as follows: “Do not think that the salaries and benefits remain the same or
improve [sic],19 as a result of the negotiation. The law specifically allows the Company to
maintain its last offer to the Union if the Union and the Company cannot come to an agreement.”
Counsel for the Union argues in her brief that the first sentence of the bullet point is a
“threat to decrease salaries and benefits,” if the Union is selected as the employees’ collective
bargaining representative. However, this contention ignores the second sentence of the bullet
point, which makes it clear that wages and benefits are a product of the bargaining process, and
that the Employer can maintain its last offer when the parties are unable to come to an
agreement. In fact, in the context of the full bullet point, this would seem to be a legitimate

18 Tyler signed both the English and Spanish versions of the letter.
19 The interpreter spoke the word “sic” to indicate that the Spanish language version of the
sentence, as written, was grammatically incorrect.
JD(SF)-45-12
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statement of the law, although certainly simplified to its bare essentials.
As I have discussed at length earlier in this decision, under Section 8(c) of the Act, the
Employer has the right to express negative views about the collective bargaining process, as
long as there is no threat of reprisal or force or promise of benefit. Clearly, references to the
risks and uncertainty of collective bargaining, including the very real possibility that some wages
and benefits may be reduced, are protected by Section 8(c), and do not constitute unlawful
threats. See Wild Oats, 344 NLRB 717, 717-718 (2005) (flyer stating that “[i]n collective
bargaining you could lose what you have now” is protected by Section 8(c), and not unlawful).
This is the very sort of campaign propaganda, which the Board has consistently held that
employees are astute enough to be able to judge the truth of for themselves. Accordingly, I
shall recommend that objection number 2 be overruled.
Objection Number 3
Objection number 3 alleges that around November 17, 2011, “an agent of the Employer
told an employee that he would not help the employee with her excess workload because the
employee was a union supporter.” This objection was the subject of the unfair labor practice
allegation found in paragraph 5(f)(3) of the complaint. It was extensively discussed earlier in
this decision.
As was discussed in detail above, I found that supervisor Ray Buchanan, during a
conversation with employee Herlinda Cervantes, informed Cervantes that he would not help
employee Jorge Mendez with his work load because Mendez “was in the Union.” Further, I
concluded that this statement constituted an unlawful implied threat to discriminate against
Mendez by refusing to help him due to his union activity, in violation of Section 8(a)(1) of the
Act. I should note that during this same conversation, Buchanan made other statements to
Cervantes, which also constituted unlawful interrogation and creating the impression of
surveillance, independent violations of the Act. As I have found merit to this unfair labor
practice allegation, concomitantly, I also find merit to objection number 3.
Objection Number 4
Objection number 4 reads as follows: “During the critical period, the Employer repeatedly
played videos in the employee break room that gave the impression of the inevitability of a strike
or strikes should the Union be voted in.” Counsel for the Union, in her post-hearing brief,
expands on this objection, contending that the video in question “implied the inevitability of
strikes,” and “implied a threat of strike violence,” both allegedly unsupported by objective facts.
Earlier in this decision, I discussed the video in question at great length. That discussion
was in connection with complaint paragraphs 5(b)(1), (2), and (3), as reflected in the Second
Motion to Amend the Complaint. (G.C. Ex. 26.) In those paragraphs the General Counsel
alleged that the video violated the Act by “threatening employees by implying that the union was
behind the vandalism and violence depicted on the video; disparag[ing] the Union by implying
that the Union was behind vandalism and violence depicted on the video; [and] threatening
employees with termination by telling employees that the Union could request their termination
in ‘right to work’ states.” However, I found the video did not violate the Act, as alleged in the
complaint, and I recommended dismissal of these allegations.
The video in question was played to employees in both English and Spanish under the
titles, “Your Job on the Line,” the English version, and “Job Security and Strikes,” the Spanish
version. Both videos were screened at the hearing, with the Spanish language video being
JD(SF)-45-12
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translated by the interpreter into the record, and the English language video directly recorded
into the record. A transcript of the English video was also admitted into evidence. (Un. Ex. 8.)
I discussed the strike violence depicted on the video at great length earlier in this
decision, and that discussion is directly relevant to this objection. I will not repeat that
discussion here, except to reiterated that I fail to see any connection between the events
depicted on the video screen and the Union’s organizing campaign at Portola. I do not believe
that any reasonable employee who viewed the video at Portola prior to the election would find
any nexus between the Union and the vandalism depicted on the video. Further, I do not
believe that by showing the video, the Employer was implying that the Union was behind the
vandalism depicted on the screen, or that it constituted a prediction of the inevitable negative
consequences of unionization.
While the film depicts strikes as one possible consequence of the failure of the collective
bargaining process, it does not indicate that this is the inevitable outcome of union
representation. Further, although there is strike vandalism depicted in the video, it is directly
tied to a specific strike in California,20 and nothing is said to suggest that such vandalism is
typical or inevitable during strikes. The video, when viewed as a whole, and where the strike is
not isolated out of context, is a propaganda film, not particularly unusual in an election
campaign. Typically, the Board leaves it up to employees to sift through both parties’
propaganda, reach their own conclusions about the relative merits, and make an informed
choice. Shopping Kart Food Market, 228 NLRB 1311, 1313 (1976) (“[W]e believe that Board
rules in this area must be based on a view of employees as mature individuals who are capable
of recognizing campaign propaganda for what it is and discounting it”).
In my opinion, the video in question constitutes a legitimate expression of the Employer’s
view of the merits of union representation under Section 8(c) of the Act. The Employer has a
right to express its opinion in what is clearly a propaganda film. It does not depict strikes and
violence as the inevitable consequence of union representation, although they are certainly
depicted as a possible outcome. Employees exposed to campaign propaganda from both sides
should be left to decide the truth for themselves, as long as no threats of reprisal or force or
promise of benefit are made. Accordingly, I find objection number 4 to be without merit, and I
recommend that it be overruled.
C. Recommendation on Election
In summary, I have found merit in objection number 1, wherein the Employer
“demanded” that employees vote against the Union, and in objection number 3, wherein the
Employer threatened not to assist an employee who was a union supporter. I have also found
merit to the following complaint allegations, wherein conduct occurred during the “critical period”
between the filing of the representation petition and the election, in violation of Section 8(a)(1) of
the Act: 5(e)(1), (2), (3), (f)(1), (2), (3), (g), (h)(1), (2), and (m)(2). These violations of the Act
included the following unlawful actions: threats of discharge, threats of reduced wages and
benefits, threats of unspecified reprisals; conduct constituting interrogation, creating the
impression of surveillance, the solicitation of complaints and grievances and the promise of
increased benefits and improved conditions of employment; and an overly-broad and
discriminatory policy on contact with the media.
It is well settled that conduct during the critical period that creates an atmosphere

20 Basic Vegetable Products in King City, California.
JD(SF)-45-12
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rendering improbable a free choice warrants invalidating an election. See General Shoe Corp.,
77 NLRB 124 (1948). Such conduct is sufficient if it creates an atmosphere calculated to
prevent a free and untrammeled choice by the employees. As the Board stated, “In election
proceedings, it is the Board’s function to provide a laboratory in which an experiment may be
conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of
the employees.” General Shoe Corp., supra at 127.
I have found that the Respondent has committed numerous and significant unfair labor
practices during the critical period, which unfair labor practices also constitute objectionable
conduct. The Board has traditionally held that conduct violative of Section 8(a)(1) of the Act is
also conduct which interferes with the exercise of a free and untrammeled choice in an election.
As such, it serves as a basis for invalidating an election. According to the Board, conduct which
is violative of Section 8(a)(1) of the Act is “a fortiori, conduct which interferes with the exercise of
a free and untrammeled choice in an election.” Playskool Mfg. Co., 140 NLRB 1417 (1963); see
also IRIS U.S.A., Inc. 336 NLRB 1013 (2001); Diamond Walnut Growers, Inc., 326 NLRB 28
(1988). Further, the Board has held that this is also “because the test of conduct which may
interfere with the ‘laboratory conditions’ for an election is considerably more restrictive than the
test of conduct which amounts to interference, restraint, or coercion which violates Section
8(a)(1).” Dal-Tex Optical Co., 137 NLRB 1782 (1962). See also Overnite Transportation Co.,
158 NLRB 879 (1966); Excelsior Underwear, 156 NLRB 1236 (1966).
However, not all unfair labor practice conduct will warrant setting aside an election. In
Caron International, 246 NLRB 1120 (1979), the Board rejected a per se approach to the fortiori
language of Playskool. Instead, the Board said the test was an objective one, that being
whether the conduct has a tendency to interfere with employees’ free choice. Hopkins Nursing
Care Center, 309 NLRB 958 (1992). See also Recycle America, 310 NLRB 629 (1993) (where
the Board found that the unfair labor practices were not sufficient to set aside the election).
The Board weighs a number of factors in determining whether Section 8(a)(1) violations
of the Act, and presumably separate objectionable conduct as well, are sufficient to warrant
setting aside an election. In the face of unfair labor practices and meritorious objections, the
Board may still decline to overturn the results of an election where it concludes that the
violations and/or conduct are de minimis. Bon Appetit Management Co., 334 NLRB 1042
(2001); Caron International, Inc., 246 NLRB 1120 (1979). Still, Section 8(a)(1) violations fall
within the de minimis exception only when these violations “are such that it is virtually
impossible to conclude that they could have affected the results of the election.” Super Thrift
Markets, 233 NLRB 409, 409 (1977), cited in Sea Breeze Health Care Center, 331 NLRB 1131
(2000).
In determining whether the misconduct could have affected the results of the election,
the Board considers “the number of violations, their severity, the extent of dissemination, the
size of the unit and other relevant factors.” Clark Equipment Co., 278 NLRB 498, 505 (1986);
Avis Rent-a-Car, 280 NLRB 580, 581 (1986); Chicago Metallic Corp., 273 NLRB 1677, 1704
(1985). Regarding those factors, several are of particular importance in considering those
objections and unfair labor practices before me that I have determined have merit. This was an
extremely close election, with a tie vote between those cast for the Petitioner and those cast
against.21 Obviously, the election results could not have been any closer. The Board has held
that in a close election the objectionable and/or unlawful conduct need not be as severe or have

21 This assumes that, as I have found, the 3 challenged voters were not eligible to vote, and
their ballots will not be counted.
JD(SF)-45-12
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affected as many employees in order to warrant setting aside the election. The narrowness of
the vote in an election is a relevant consideration. Robert Orr-Sysco Food Services, 338 NLRB
614 (2002); Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995); Also see Avis Rent-a-Car,
supra.
Further, the meritorious objections and unfair labor practices committed by the Employer
in this case were pervasive. I have found improper conduct committed during the critical period
by literally every company official supervising the employees in the voting unit, including plant
general manager Tyler, human resources manager McClanahan, production manager DeCrow,
and supervisors Franco and Buchanan. The labor relations consultant hired to conduct the
Employer’s election campaign, Armando Talancon, was also found to have committed unfair
labor practices. This improper and/or unlawful conduct was sever, including threats to
discharge, threats to reduce wages and benefits, and threats of other unspecified reprisals,
interrogation, creating the impression of surveillance, and solicitation of complaints and
promises of benefits, all in an effort to defeat the Union in the election. Additionally, the
Employer’s conduct was widely disseminated and permeated the voting unit. Especially
egregious and received by each member of the voting unit was the letter from plant general
manager Tyler wherein he stated on the Spanish language version of the letter that he
“demanded” that the employees vote “no” in the election.
These were significant unfair labor practices and objections, which would clearly have
had a tendency to seriously inhibit the employees’ willingness to engage in union activity, and
would likely have created an atmosphere unconducive to a free and untrammeled choice by the
employees. The Employer’s conduct destroyed the laboratory conditions required by the Board.
Based on the above, I conclude that the objectionable conduct and unfair labor practices
engaged in by the Employer have tended to interfere with the free and fair choice of a
determinative number of voting unit employees. Accordingly, as the election results do not
reflect the employees’ free and fair choice, I recommend that the election be set aside and that
this proceeding be remanded to the Regional Director for Region 28 for the purpose of
conducting a second election.
Conclusions of Law
1. The Respondent, Portola Packaging, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, United Food and Commercial Workers Union, Local No. 99, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By the following acts and conduct the Respondent has violated Section 8(a)(1) of the
Act:
(a) Orally promulgating an overly-broad and discriminatory rule prohibiting employees
from discussing their wages and those of other employees with each other;
(b) Orally promulgating an overly-broad and discriminatory rule prohibiting employees
from discussing what occurred in meetings with the Respondent’s supervisors with other
employees;
(c) Threatening its employees with discharge for engaging in concerted activities;
JD(SF)-45-12
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(d) Threatening its employees with unspecified reprisals for engaging in concerted
activities;
(e) Soliciting employee complaints and grievances, and promising its employees
increased benefits and improved terms and conditions of employment if they rejected the Union
as their collective bargaining representative;
(f) Threatening its employees with discharge if they chose the Union as their collective
bargaining representative;
(g) Threatening its employees with unspecified reprisals if they chose the Union as their
collective bargaining representative;
(h) Interrogating its employees about their union and concerted activities;
(i) Creating an impression among its employees that their union and other concerted
activities were under surveillance by the Respondent;
(j) Threatening its employees with withholding assistance to them because they engaged
in union and other concerted activities;
(k) Threatening its employees with unspecified reprisals by demanding employees vote
“no” in the upcoming representation election;
(l) Threatening its employees with reduced wages and benefits if the Union was selected
as the employees’ collective bargaining representative; and
(m) Maintaining an overly-broad and discriminatory rule in its Employee Handbook
prohibiting and restricting its employees’ contact with the news media.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designated to
effectuate the policies of the Act.
The Respondent shall be required to post a notice that assures its employees that it will
respect their rights under the Act. In addition to physically posting of paper notices, notices
shall be distributed electronically, such as by email, posting on an intranet or internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees
by such means. J. Picini Flooring, 356 NLRB No. 9 (2010).
Also, having found that a provision in the Respondent’s Employee Handbook, as
referenced above, is overly-broad and discriminatory, the recommended order requires that the
Respondent revise or rescind the unlawful language, and advise its employees in writing that
said provision has been revised or rescinded.
Further, as indicated above, I have found that the Respondent engaged in both
objectionable conduct and unfair labor practices affecting the results of the election in Case 28-
RC-067973. I recommend, therefore, that the election in this case held on December 1, 2011,
be set aside, that a new election be held at a date and time to be determined in the discretion of
the Regional Director for Region 28, and that the Regional Director include in the Notice of
JD(SF)-45-12
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Election the following language:
NOTICE TO ALL VOTERS
The election held on December 1, 2011, was set aside because the National Labor Relations
Board found that certain conduct of the Employer interfered with the employees’ free
exercise of a free and reasoned choice. Therefore, a new election will be held in accordance
with the terms of this Notice of Election. All eligible voters should understand that the
National Labor Relations Act gives them the right to cast ballots as they see fit and protects
them in the exercise of this right free from interference by any of the parties.22
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended23
ORDER
The Respondent, Portola Packaging, Inc., its officers, agents, successors, and assigns,
shall
1. Cease and desist from:
(a) Orally promulgating an overly-broad and discriminatory rule prohibiting employees
from discussing their wages and those of other employees with each other;
(b) Orally promulgating an overly-broad and discriminatory rule prohibiting employees
from discussing what occurred in meetings with the Respondent’s supervisors with other
employees;
(c) Threatening its employees with discharge for engaging in concerted activities;
(d) Threatening its employees with unspecified reprisals for engaging in concerted
activities;
(e) Soliciting employee complaints and grievances, and promising its employees
increased benefits and improved terms and conditions of employment if they reject the Union as
their collective bargaining representative;
(f) Threatening its employees with discharge if they chose the Union as their collective
bargaining representative;
(g)Threatening its employees with unspecified reprisals if they chose the Union as their
collective bargaining representative;
(h) Interrogating its employees about their union and concerted activities;

22 Lufkin Rule Co., 147 NLRB 341 (1964).
23 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD(SF)-45-12
54
(i) Creating an impression among its employees that their union and other concerted
activities were under surveillance by the Respondent;
(j) Threatening its employees with withholding assistance to them because they engaged
in union and other concerted activities;
(k) Threatening its employees with unspecified reprisals by demanding employees vote
“no” in the upcoming representation election;
(l) Threatening its employees with reduced wages and benefits if the Union was selected
as the employees’ collective bargaining representative;
(m) Maintaining an overly-broad and discriminatory rule in its Employee Handbook
prohibiting and restricting its employees’ contact with the news media; and
(n) In any like or related manner, interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days of the Boards’ Order, revise or rescind the rule in its Employee
Handbook prohibiting and restricting its employees’ contact with the news media, and shall so
inform its employees in writing;
(b) Within 14 days after service by the Region, post at its Tolleson, Arizona facility,
copies of the attached notice marked “Appendix”24 in both English and Spanish. Copies of the
notice, 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 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physically posting of paper notices, notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since May 15, 2011; and
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

24 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD(SF)-45-12
55
IT IS FURTHER ORDERED that the Regional Director for Region 28 shall set aside the
representation election in Case 28-RC-067973, and that a new election shall be conducted at a
date and time to be determined in the discretion of the Regional Director.
Dated at Washington, D.C. September 13, 2012
_____________________
Gregory Z. Meyerson
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities
You have the right to join with your fellow employees in protected concerted activities.
These activities include discussing working conditions among yourselves, forming a
union, and making common complaints about your wages, hours, and other terms and
conditions of employment, including making concerted complaints to management.
WE WILL NOT do anything that interferes with these rights. Specifically:
WE WILL NOT tell you that you are prohibited from discussing your wages and those of other
employees with each other.
WE WILL NOT tell you that you are prohibited from discussing with other employees what
occurred in meetings with supervisors.
WE WILL NOT threaten you with discharge for engaging in concerted activities.
WE WILL NOT threaten you with unspecified reprisals for engaging in concerted activities.
WE WILL NOT solicit complaints and grievances from you, and/or promise you increased
benefits and improved terms and conditions of employment on the condition that you reject the
United Food and Commercial Workers Union, Local No. 99 (the Union), as your collective
bargaining representative.
WE WILL NOT threaten you with discharge if you chose the Union as your collective bargaining
representative.
WE WILL NOT threaten you with unspecified reprisals if you chose the Union as your collective
bargaining representative.
WE WILL NOT interrogate you about your union and concerted activities.
WE WILL NOT create an impression among you that your union and other concerted activities
are under surveillance.
WE WILL NOT threaten you with withholding assistance from you because you engaged in
union and other concerted activities.
WE WILL NOT threaten you with unspecified reprisals by demanding that you vote against
representation by the Union.
WE WILL NOT threaten you with decreased wages and benefits if the Union was selected as
your collective bargaining representative.
WE WILL NOT maintain a rule in our Employee Handbook that prohibits and restricts you from
contact with the news media.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Federal labor law, including the right to vote for the
Union, or any union, to represent you in collective bargaining with us.
WE WILL revise or rescind the rule in our Employee Handbook prohibiting and restricting your
contact with the news media, and We Will inform you in writing when we have done so.
PORTOLA PACKAGING, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 602-640-2146.