Excel Container, Inc.

17 325 NLRB No. 14 EXCEL CONTAINER, INC. 1 The Respondent has excepted to some of the judge’s credibility findings. In this regard the Respondent contends, inter alia, that the judge improperly credited one part, but discredited another part, of employee Guadalupe Cardenas Ortega’s testimony regarding a con- versation that he had with Pedro Medina. We note, however, that ‘‘nothing is more common in all kinds of judicial decisions than to believe some and not all, of a witness’ testimony.’’ NLRB v. Univer- sal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950). The Respond- ent also contends that the judge’s credibility resolutions regarding Ortega’s discharge, and thus her finding that the discharge violated Sec. 8(a)(3) and (1), are the result of bias. After careful examination of the entire record we are satisfied that this contention is without merit. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We have modified the Order to reflect that the Respondent’s in- stallation of the buzzer system had the effect of curtailing the em- ployees’ paid wash-up time as the judge stated in her analysis, as well as in her conclusions of law. 3 Further, the use of the date that the unfair labor practice oc- curred better effectuates the policies of the Act. Thus, we note that the charge can be filed up to 6 months after the alleged unfair labor practice occurred and, as noted by the judge here, the first charge filed may not generate any complaint allegations, or all complaint allegations generated by the first charge may be dismissed. Excel Container, Inc. and Teamsters Local 714, af- filiated with International Brotherhood of Teamsters, AFL–CIO. Cases 13–CA–33569, 13– CA–33593, and 13–CA–33598 November 7, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS On May 30, 1997, Administrative Law Judge Nancy M. Sherman issued the attached decision. The Re- spondent filed exceptions with supporting argument and the General Counsel filed an answering brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings1, and conclusions and to adopt the rec- ommended Order as modified.2 In Indian Hills Care Center, 321 NLRB 144 (1996), and subsequent cases, the respondent was required, if it had gone out of business or had closed its facility, to mail a copy of the notice to employees employed by it at any time since the date the charge was filed. In fashioning a remedy here, however, the judge rea- soned that the triggering date of respondent’s notice- mailing obligation should be the date of the first unfair labor practice rather than the date that a charge is filed. After careful consideration, we have decided to modify the standard provision to use the date of the first unfair labor practice. The purpose of the notice, as the judge noted, is to ensure that employees are no- tified of the outcome of the Board proceeding. See In- dian Hills, supra. The use of the date that the first vio- lation of the Act occurred as the operative date ensures that all employees who were exposed to the unfair labor practice and its effects will be notified of the outcome of the Board proceeding.3 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Excel Container, Inc., Aurora, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(d). ‘‘(d) Discouraging membership in Local 714, or any other union, by forbidding employees to consume food and beverages at their machines, by installing buzzer systems which have the effect of curtailing employees’ paid wash-up time, by ceasing the use of air-condi- tioners, by removing telephones, by withdrawing the privilege of free coffee, by discharging employees, or by otherwise discriminating with respect to hire or ten- ure of employment or any term or condition of em- ployment.’’ 2. Substitute the following for paragraphs 2(e) and (f) and reletter the subsequent paragraphs. ‘‘(e) Eliminate the buzzer system instituted on July 24, 1995, and thus restore the amount of paid wash- up time which employees received prior to the installa- tion of the buzzer system, unless the Respondent can show that such a system would have been instituted after July 24, 1995, even in the absence of union activ- ity.’’ 3. Substitute the attached notice for that of the ad- ministrative 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 the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00017 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 This consolidated complaint was originally based partly on a charge with Case 13–CA–33616. On October 25, 1996, the Regional Director approved withdrawal of this charge, severed it from the other cases covered by the complaint, and dismissed those portions of the complaint which were based on the withdrawn charge. To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT give you the impression of surveil- lance over meetings of Teamsters Local 714, affiliated with International Brotherhood of Teamsters, AFL– CIO. WE WILL NOT offer you benefits if you continue to refrain from supporting Local 714. WE WILL NOT interrogate you about Local 714 in a manner constituting interference, restraint, or coercion. WE WILL NOT discourage membership in Local 714, or any other union, by forbidding you to consume food and beverages at your machines, by installing buzzer systems which have the effect of curtailing your paid wash-up time, by ceasing the use of air-conditioners, by removing telephones, by withdrawing the privilege of free coffee, by discharging you, or by otherwise dis- criminating with respect to hire or tenure of employ- ment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights under the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Guadalupe Cardenas Ortega and Pete Medina full reinstatement, as nonprobationary em- ployees, to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privi- leges previously enjoyed. WE WILL make Guadalupe Cardenas Ortega and Pete Medina whole for any loss of earnings and other benefits resulting from their discharges, less any net interim earnings, plus interest. WE WILL rescind the rule which forbids you to eat food or to drink beverages at your machines. WE WILL restore the privilege of free coffee to the employees, in the same manner that it was available before July 21, 1995; and make you whole, with inter- est, for any losses you may have suffered by reason of our withdrawal of free coffee privileges. WE WILL eliminate the buzzer system instituted on July 24, 1995, which had the effect of curtailing the amount of paid wash-up time which employees re- ceived, unless we can show that even in the absence of union activity, this system would have been in- stalled thereafter. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the discharges of Guadalupe Cardenas Ortega and Pete Medina and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the discipline will not be used against them in any way. EXCEL CONTAINER, INC. Richard S. Andrews, Esq. and Peter Hines, Esq., for the Gen- eral Counsel. Walter J. Liszka, Esq. and James R. McCann, Esq., of Chi- cago, Illinois, for Respondent. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge. These consolidated cases were heard before me in Chicago, Illinois, on October 30 and 31 and November 1, 1996, pursuant to a charge in Case 13–CA–33569 filed by Teamsters Local 714, affiliated with International Brotherhood of Teamsters, AFL–CIO (the Union) against Respondent Excel Container, Inc. on July 25, 1995; a charge in Case 13–CA–33593 filed by the Union against Respondent on August 2, 1995; a charge in Case 13–CA–33598 filed by the Union against Re- spondent on August 4, 1995, and amended on October 11, 1995; and a consolidated complaint issued on October 31, 1995, and amended on February 5, 1996.1 The complaint in its final form alleges that Respondent violated Section 8(a)(1) of the National Labor Relations Act (the Act) by in- terrogating employees about their union sympathies and ac- tivities, by promising them benefits in order to dissuade them from supporting the Union, and by creating an impression among its employees that their union activities were under surveillance. In addition, the complaint in its final form al- leges that Respondent violated Section 8(a)(3) and (1) of the Act by imposing on its employees, to discourage their union activity, more onerous and rigorous working conditions, and by discharging employees Guadalupe Cardenas Ortega and Pete Medina. On the basis of the record as a whole, including the de- meanor of the witnesses, and after due consideration of the posthearing briefs filed by counsel for the General Counsel (the General Counsel) and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION AND THE UNION’S STATUS Respondent is a corporation with an office and place of business in Aurora, Illinois, where it manufactures and sells corrugated cardboard boxes. During the calendar year preced- ing the issuance of the complaint, a representative period, Respondent purchased and received at its Aurora facility goods and materials valued in excess of $50,000 directly from points outside Illinois, and sold and shipped goods val- VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00018 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 19 EXCEL CONTAINER, INC. ued in excess of $50,000 from its Aurora facility directly to customers located outside Illinois. I find that, as Respondent admits, it is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over its operations will effectuate the policies of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Alleged Preelection Violations of Section 8(a)(1) In February or March 1995, Respondent’s employee Jose Crisanto telephoned Genaro Rodriguez, an organizer for the Union, to inquire about the benefits of union representation. In the next few months, Respondent’s employees held union meetings on Friday afternoons, after work, at a restaurant called Reynosa in Aurora, Illinois. Among the dozen or more different employees who attended one or more of these meet- ings were truckdriver Pete Medina (an alleged discriminatee), stacker Guadalupe Cardenas Ortega (also an alleged discriminatee), assistant machine operator Pedro Medina (the brother-in-law of Cardenas Ortega; no kin to Pete Medina, so far as the record shows), and machine assistant Avelina Alvarado. At one or another of these meetings, all of the em- ployees named in the preceding sentence signed documents indicating that they wanted to be represented by the Union. On May 15, 1995, the Union filed with the Board a rep- resentation petition seeking a unit which included production, maintenance, shipping, and truck driving employees. On June 22, 1995, the Regional Director directed an election in that unit. The election was scheduled for July 21, 1995, a Friday. Three or four of the Friday union meetings were attended by production employee Pedro Medina. A few days before the election, on a Monday following one of these Friday union meetings which Pedro Medina attended, Juan Osorio, who Respondent admits was a supervisor for and an agent of Respondent and who had not attended that meeting, brought up with Pedro Medina the subject of the meeting while the two men were at work. Osorio asked Medina how things were going with the Union and the meetings, to which Medina replied that he did not know what Osorio was talking about. On another occasion , Osorio told Medina that Osorio knew what days the Union was having these meetings and who was there. Osorio went on to say that Medina was among those present, but did not name anyone else who had attended. Medina, who did not know whether Osorio was telling the truth and did not want him to know that the em- ployees were having a union meeting, replied that the em- ployees were meeting there for the sole purpose of having dinner. About April 1995, after talking to employee Alvarado about Osorio’s house, he asked her when she was going to buy a house. She told him that she would like to buy a house. Alvarado’s duties called for her to leave a daily report in the offfice of Osorio, who was her immediate supervisor. On a visit to Osorio’s office for this purpose, after she had attended several union meetings and during the week before the election, she encountered Osorio. He brought up the sub- ject of the Union, and asked what she knew about it. She untruthfully said that she knew nothing. He asked whether she had gone to a union meeting. She untruthfully said no. Then, he said that Respondent could provide her with help to buy a house. Alvarado gave honest testimony that ‘‘right there’’ she was not afraid when he asked her about the Union, but ‘‘when I felt different it was when—like he was trying to buy me . . . when he gave me the offer that the company could help me to buy a house.’’ During the July 21 election, she acted as the Union’s observer. Respondent never helped her to buy a house. My findings as to these Osorio—Medina and Osorio—Al- varado conversations are based on the employees’ uncontradicted testimony. Osorio did not testify. He was ef- fectively served with a subpoena issued at the General Coun- sel’s behest; but Osorio did not appear pursuant to that sub- poena, and the General Counsel rested his case on November 1, 1996, without seeking enforcement of that subpoena. Osorio voluntarily resigned from Respondent’s employ on October 18, 1996, more than 4 months after the issuance of the notice of hearing pursuant to which the hearing began on October 30, 1996. On an undisclosed date between his res- ignation and November 1, 1996, Osorio was incarcerated by the Immigration and Naturalization Service; between an un- disclosed date prior to November 11, 1996, and at least until November 19, 1996, Osorio was in Mexico. Respondent never effectively served Osorio with a subpoena. By order dated December 2, 1996, I denied Respondent’s motion to receive, as substantive evidence, the prehearing affidavit which then Supervisor Osorio gave to counsel for the Gen- eral Counsel in the presence of Respondent’s counsel on Au- gust 22, 1995, during the investigation of the charges and be- fore the complaint issued. B. Alleged Postelection Unfair Labor Practices 1. Alleged imposition of more onerous and rigorous working conditions a. Prelunch conduct on election day The election was held between 6 and 8 a.m. on July 21, 1995, in the employee lunchroom. The tally of ballots re- vealed that 13 votes were cast for the Union, 11 were cast against the Union, and 2 ballots (a determinative number) were challenged. So far as the record shows, no objections to the election were ever filed. Later that morning, Glenn Fortune (who is Respondent’s part owner, and also its vice president of production) held a meeting with all of Respond- ent’s production employees. Using Osorio as a translator, Fortune (an Anglophone who speaks almost no Spanish) told the employees (for most of whom Spanish is a first lan- guage) that effective immediately there was a new rule which forbade the consumption of food and beverages at the em- ployees’ machines. Prior to this announcement, the employ- ees had been allowed to eat and drink at their machines while they were working. Fortune also announced that begin- ning the following Monday, July 24, Respondent was putting into operation a buzzer system which would signal the em- ployees when to commence working at the beginning of the shift, to cease working at the end of the shift, and to begin and end their break and lunch periods. At all relevant times beginning before the union activity started, Respondent’s rules have required employees to main- tain the work area and keep it clean. Fortune testified that he told the employees on July 21, 1995, that they could no longer consume food or beverages at their work stations be- VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00019 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 My finding that a buzzer sounded at about 3:28 p.m., as well as at 3:30 p.m., is based on Pedro Medina’s testimony. I believe that employee Crisanto was confused in testifying otherwise. 3 This finding is based on the testimony of Pedro Medina, Cardenas Ortega, and Crisanto. Moreover, Respondent’s answer ad- mits that the telephone was removed on or about July 21. For de- meanor reasons, I do not credit the testimony of Smith, who tended cause on at least three occasions in 1995, he had found cof- fee cups and broken bottles in the work area; that their pres- ence represented a safety hazard; and that he had found two broken glass bottles in the work area on the morning of July 21 and shortly after the election. Maintenance mechanic Rudy Smith testified that ‘‘way be- fore the Union,’’ Fortune and/or Company President/Owner Michael Mikula told Smith that management wanted a buzz- er system because ‘‘the guys would be standing on a ma- chine and keep working and everybody else would go to break. Nobody ever paid any attention, no buzzers telling no- body what to do. They’d just constantly work.’’ The equip- ment for the buzzer system whose effectuation was an- nounced to the employees on July 21, 1995, was included in the assets which Respondent acquired from another firm, Monarch Packaging, whose inventory Respondent had con- tracted to purchase in May 1994. The purchased buzzer equipment was removed from Monarch’s premises in Chi- cago, and was installed in Respondent’s Aurora plant by Smith, about the fall of 1994. From time to time thereafter, Smith attempted to repair the buzzer system and then advised Fortune that it was operational, but it repeatedly failed to work properly and repeatedly had to be disconnected. For- tune credibly testified that Respondent had no operational buzzer system for a good part of a year prior to July 21, 1995. On direct examination as an adverse witness called by the General Counsel, Fortune testified that 3 or 4 days before the July 21 election, Smith told him that the buzzer system was ready to function. However, Fortune’s prehearing affida- vit states that Smith so advised him ‘‘Just prior to the [July 21] meeting’’ with the employees, and on recross-examina- tion by Respondent’s counsel, Fortune testified that Smith so advised him after the election. Moreover, Fortune’s prehear- ing affidavit states that Smith so advised him ‘‘just before’’ a July 21 meeting with the employees in the afternoon, whereupon Fortune told the employees that a buzzer system was being instituted, whereas he had initially testified as an adverse witness that on July 21 he had so advised the em- ployees before the lunchbreak, which begins at 11:45 a.m. Fortune and Smith both testified that Respondent eventu- ally bought a new buzzer system. However, Fortune testified that this system was ordered by Smith and that Fortune did not know when it was ordered; whereas Smith testified that the new system was bought by Fortune. Smith initially testi- fied that Fortune bought this new system ‘‘probably’’ before the July 21 union election; but Smith’s subsequent testimony tends to represent that Fortune bought the new system some time later. Respondent’s records show that a part for the old system was shipped to Respondent on August 8, 1995; Smith testified that he ordered the part about this time, and that the buzzer system was operational before he ordered this part, al- though (he testified) he could not recall exactly how long be- fore. Respondent’s answer states that the buzzer system was not operational until after July 21, 1995. The buzzer system went into effect about the week follow- ing the election. Before the buzzer system went into effect, the employees had been free to stop working and start wash- ing themselves up at any time after they finished cleaning the machines, which are shut down for the day at 3 or 3:15 p.m. and prior to the 3:30 p.m. clock-out time. After the buzzer system went into effect, the employees were not permitted to begin washing themselves until a buzzer sounded at about 3:28 p.m., 2 minutes before a second buzzer signaled the end of the workday.2 2. Alleged election day changes in the lunchroom After the meeting during which Fortune announced the in- stitution of a buzzer system and prohibited employees from consuming food or beverages at their machines, the employ- ees returned to work. The employees worked for less than an hour and then went to lunch at the regular time, 11:45 a.m., in the employee lunchroom. The General Counsel claims that by the time they reached the lunchroom Respond- ent had effected certain changes therein because the initial tally of ballots showed more ‘‘yes’’ then ‘‘no’’ votes. These at least alleged changes are described below. a. Removal of the telephone At all relevant times prior to the election, a telephone was hung outside the door of the lunchroom, which opens into the production area. At the time this instrument was origi- nally installed, it was the only telephone in the plant, and the only means of communication between the plant and the of- fice, which are 75 to 80 feet apart. By July 1995, a telephone instrument had also been installed in Osorio’s office, which is right around the corner from the lunchroom. However, Fortune credibly testified that the telephone instrument out- side the lunchroom was still a convenience for management. At all material times, employees had been permitted to use this telephone instrument free of charge to make outgoing local calls. As a witness for Respondent, Fortune testified that on a date he did not recall Osorio or Smith told him that the bell on this telephone instrument did not work. However, Fortune credibly testified that he was never told that this telephone instrument was unusable for the purpose of calling Respondent’s office or for making outgoing calls, and he did not testify to having been advised that this instrument was defective in any respect other than the bell. Fortune testified that he did not tell anyone to remove that telephone instru- ment, and that he did not recall whether the defect in the old telephone instrument was drawn to his attention at the time he was told that it had been removed. Further, although at certain points Fortune credibly testified that he purchased a new telephone instrument after Smith had informed him that the old instrument was broken and Smith had removed it, at one point Fortune testified that the old one may have been repaired and reinstalled. Smith credibly testified that on a date he was not asked to give, he told Fortune about the de- fect in the telephone instrument, and that Fortune told him to take the existing telephone instrument down and Fortune would buy another one. The old telephone instrument re- mained on the wall outside the lunchroom until the day of the election. However, by the time the employees went to the lunchroom for lunch on the day of the election, the old tele- phone instrument had been removed.3 Fortune credibly testi- VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00020 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 21 EXCEL CONTAINER, INC. to be vague and uncertain as to dates, that the old telephone instru- ment was not removed until ‘‘a couple weeks after the election.’’ 4 My finding that the new telephone was not installed until after October 10, 1995, more than 12 weeks after the old one had been removed, is based on the testimony of employee Pedro Medina. Al- though Smith testified that the new telephone was installed ‘‘prob- ably immediately’’ after the old one was removed, he dated the re- moval as ‘‘a couple weeks after’’ the election, and dated the union election as ‘‘maybe in August sometime . . . I don’t know.’’ For- tune testified that he bought the replacement telephone instrument some time in August on a date which he did not recall. He further testified that he showed the newly installed telephone instrument to Richard Andrews, counsel for the General Counsel, when he came to the facility on August 22 and took Fortune’s affidavit. I do not credit the foregoing testimony by Fortune, for demeanor reasons, be- cause his testimony about the telephone matter was uncertain and in- cluded internal inconsistencies, and because he admittedly failed to tell Andrews on August 22 that a new telephone had been installed, even though Fortune’s affidavit taken by Andrews on that day con- tains some details about the telephone removal and states that ‘‘there used to be a telephone on the outside of the lunchroom in the plant.’’ 5 The coffee, cream, and sugar were paid for by Part Owner For- tune personally. 6 This finding is based on credible parts of the testimony of Pedro Medina and Cardenas Ortega. For demeanor reasons, and because Respondent’s answer states that the coffee makers were removed ‘‘due to the need for repair,’’ I do not credit Fortune’s testimony that no coffee makers were then in the lunchroom, because the one which he himself had provided had broken down ‘‘somewhere in the time frame’’ of July 21, 1995, and was in the maintenance shop, and the other had been retrieved by the salesman employee who owned it. Although maintenance employee Smith did testify that on a few occasions he had been asked to repair one of the coffee makers in the lunchroom, he was not asked about dates. For demeanor reasons, I do not believe his uncorroborated testimony that nobody ever used a second coffee maker which was also in the lunchroom. fied that because of the additional telephone instruments in- stalled in the facility after the initial installation of the tele- phone instrument near the lunchroom, and because during this period he and Osorio had begun to carry two-way radios, the instrument near the lunchroom, although a convenience, was no longer needed by management. A new telephone in- strument was installed, where the old one had been, on an undisclosed date between October 11, 1995, and the October 1996 hearing.4 At least before the removal of the telephone instrument outside the lunchroom, Respondent also maintained in the die room, about 80 feet from the lunchroom, a telephone instru- ment from which employees were permitted to make out- going calls without charge. So far as the record shows, this telephone remained in the die room, and remained available for free local calls by employees, at all relevant times after the removal of the lunchroom telephone. b. Removal of coffee makers Since the beginning of Respondent’s operations, in 1989, Respondent had on a fairly consistent basis operated coffee makers from which employees were permitted to help them- selves free of charge.5 On the last day before the election, two operable coffee makers were in the lunchroom.6 They were still operating in the lunchroom on the morning of the election, although the timing of the election (6 to 8 a.m.) left some of the employees without enough time to obtain coffee from them. Before lunch, Fortune put one of them into the dumpster. The credible evidence fails to show what happened to the other. Neither of them was in the lunchroom when the employees entered the lunchroom at 11:45 a.m. on July 21. In 1993, Respondent entered into a contract with a vend- ing company called Tom’s, which already operated a candy- vending machine on Respondent’s premises, to install and operate a coffee-vending machine. Tom’s brought the coffee- vending machine to Respondent’s premises in 1994, before the union campaign began, but never hooked it up. There- after, Tom’s went into bankruptcy, and in July or August 1995, Respondent acquired ownership of the coffee machine. Fortune asked Smith to hook it up, and it has been operating since some time after July 1995. c. The air-conditioner About 1992, Fortune brought a wall-type air-conditioner from home and had Smith install that air-conditioner in the employee lunchroom. Smith credibly testified that during the summer of 1995, which was unusually hot, the lunchroom air-conditioner stopped running at least three times. How- ever, in the first part of the morning of the July 21 election, this air-conditioner was working (see infra). When the em- ployees came to the lunchroom for lunch on July 21, the room was exceedingly hot, the air-conditioner was unplugged, and the cover and the control knob had been re- moved. The air-conditioner was not turned on again until about a month later. Fortune denied having instructed anyone to turn off the air-conditioner in order to penalize the em- ployees for seeking union representation. My finding that the air-conditioner was working on July 21 before the lunch period is based on the testimony of Cardenas Ortega. Pedro Medina credibly testified that the air- conditioner was working when he had lunch the day before the election. At one point he testified that before the election ‘‘they were having some problems with the air-conditioner.’’ However, he later testified that except for the appearance of the air-conditioner (that is, the cover and the knob had been removed), he did not know whether the air-conditioner had broken down. Moreover, he testified that on the day of the election, Respondent ‘‘turned off the air-conditioner and took the knob off it.’’ He was not asked the period over which the ‘‘problem’’ to which he referred had been arising. I re- gard Cardenas Ortegas as a more honest witness than Pedro Medina. In any event, their testimony does show that during a continuous period which began before the July 21 election, the air-conditioner had been operating, although (perhaps) not very effectively, until being turned off before the July 21 lunchbreak. Fortune did not testify that problems with the air-conditioner arose on or a few days before July 21. To the extent inconsistent with Cardenas Ortega’s testimony, for de- meanor reasons, I do not credit Smith’s November 1996 tes- timony, which is generally vague as to dates, that since June 1995 to the present the air-conditioner had been continuously operating except when it had broken down. d. Removal of microwave oven Before the election, the lunchroom had contained three microwave ovens—one of them purchased by a group of em- ployees who got together and bought one, one of them per- sonally owned by Fortune, and one of them personally VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00021 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 Fortune testified that he had not known this until so advised by Osorio. 8 He testified through a Spanish-English interpreter. 9 The application gives the same address for Cardenas Ortega and for his brother-in-law, Pedro Medina. 10 In view of Fortune’s testimony that the bundles were stacked properly (although too slowly), and for demeanor reasons, I credit Cardenas Ortega’s testimony that Fortune told him on only one oc- casion how to stack the bundles, and Cardenas Ortega’s denial of Pedro Medina’s testimony that on at least two or three occasions Fortune and/or Osorio told Cardenas Ortega to ‘‘do it like this.’’ owned by Osorio. During the interval between the election and the lunchbreak that day, employee Cardenas Ortega saw Osorio and employee Smith (an eligible voter) remove Osorio’s microwave oven from the lunchroom. The evidence fails to show whether any of the employees knew that this microwave oven was Osorio’s property.7 Fortune testified without contradiction that nobody from management had ever told Osorio to remove this oven from the lunchroom. Osorio did not testify. As previously noted, employees Cardenas Ortega and Pedro Medina had seen Fortune, that same morning and after the election, throw into the dumpster a coffee pot which had been operative earlier that morning. Moreover, during the afternoon break on the day of the elec- tion Cardenas Ortega found in the dumpster a wall clock which had been in the lunchroom. Cardenas Ortega retrieved this clock and took it home, where it worked perfectly well. 2. Allegedly discriminatory election—day discharge of Guadalupe Cardenas Ortega Guadalupe Cardenas Ortega’s first language is Spanish, and he knows little or no English.8 During his job interview on April 5, 1995, with Supervisor Osorio, who is bilingual in Spanish and English, Osorio gave an English-language blank application form to employee Pedro Medina, who is also bilingual, and asked him to fill it out for Cardenas Or- tega, who is Medina’s brother-in-law. Medina told Cardenas Ortega that this document was an employment application, and wrote in the blanks what he told Medina to put in there. This application checks ‘‘yes’’ before the inquiry, ‘‘Do you have any physical limitations that preclude you from per- forming any work for which you are being considered?’’ but contains no entries in the blank stating ‘‘If yes, what can be done to accommodate your limitation?’’ In addition, this ap- plication names Pedro Medina in the blank calling for ‘‘Ref- erences: Give the names of three persons not related to you whom you have known at least one year.’’9 Between early June and about the end of July 1995, Cardenas Ortega attended three union meetings. As noted above, Supervisor Osorio told employee Pedro Medina that Osorio knew what days the Union was having these meetings and who was there. In addition, Osorio told Medina that Osorio knew Medina had attended; and the only meeting Me- dina attended was also attended by Cardenas Ortega. At the first of these meetings, Cardenas Ortega signed a paper to show that he wanted the Union. The employees who attended one or more union meetings included the entire crew on the Flexo machine—namely, Jose Crisanto, Pedro Medina, and Cardenas Ortega. Immediately after the election tally was announced, Fortune told machine operator Crisanto (through Osorio) to speed up the Flexo ma- chine, whose product Cardenas Ortega was stacking. As Cardenas Ortega prepared to punch out that afternoon, Osorio summoned him to Osorio’s office. Osorio said that Fortune was ‘‘really angry,’’ that Cardenas Ortega was not doing his duties well, and that Osorio was ‘‘really sorry’’ but Cardenas Ortega did not have work any more. Cardenas Or- tega said that he did not understand why Fortune was saying that, because, about 15 days before the election, Fortune had told the three-employee crew on the Flexo machine (includ- ing Cardenas Ortega) that they were doing a good job. Osorio said that Cardenas Ortega was one of the people who had worked for the Union. Cardenas Ortega’s personnel file contains a typewritten memorandum, signed by Osorio, which is dated July 24, 1995, 3 days after Cardenas Ortega’s discharge. It recites: ‘‘To: Guadalupe Cardenas (Personnel File),’’ but there is no evidence that he saw or received a copy at any material time. The memorandum states: On several [occasions] I have talked to Guadalupe about his work performance. Namely not being able to keep up with the Flexo. In fact, there are notations in his file concerning this very fact. On 6–26–95 we ex- tended Guadalupe’s probationary period until 10–5–95 in hopes that he would improve. But at this time there has been no improvement in his performance. After re- peatedly talking to Guadalupe and not seeing any re- sults I have no choice but to terminate him. Osorio did not in fact tell Cardenas Ortega that he had poor performance on the machine and that his production was below standard, or that he would be removed from his job if his performance did not improve; nor did Osorio in fact repeatedly tell him that he was doing a bad job. During most of Cardenas Ortega’s tour of duty with Re- spondent, he worked as a helper on the Flexo machine. When product leaves this machine, it consists of various sized cartons whose members are lying flat but which are ready for assembly into usable cartons. After leaving the Flexo machine, these flat unassembled cartons are carried by a conveyor belt to a bander machine and then, to a point on the conveyor belt from which a helper removes the banded bundles of unassembled cartons and stacks them. Fortune tes- tified that Cardenas Ortega was discharged because he stacked the banded bundles of cartons too slowly and, in consequence, the crew was constantly shutting down the Flexo machine so that he could catch up.10 Fortune further testified that his decision to discharge Cardenas Ortega was reached before July 5, 1995; that July 5, 1995, was the last day of the probationary period of Cardenas Ortega (who had started to work on April 5); that Fortune decided not to dis- charge him on that date because of the advice of counsel, who recommended that he not be discharged at that point in time because it might be a case for an unfair labor practice complaint owing to the union activity that was going on in the plant at that time; and that ‘‘we’’ made a decision to ex- tend Cardenas Ortega’s probation for 90 days—that is, until October 5, 1995. Fortune went on to testify that he remained dissatisfied with Cardenas Ortega’s work, and that during the week before the July 21 election Fortune decided ‘‘for sure’’ to terminate him. Fortune testified that Respondent let him work for the rest of the day, after the polls closed at 8 a.m., VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00022 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 23 EXCEL CONTAINER, INC. 11 My findings in the last two sentences are based on Pedro Medina’s uncontradicted testimony about a report made to him by Cardenas Ortega. Cardenas Ortega’s testimony as to Osorio’s report to Cardenas Ortega about Fortune’s statements to Osorio was not re- ceived to show that Fortune in fact made such statements. However, the credible portion of Medina’s testimony that Cardenas Ortega at- tributed certain remarks to Osorio was received to show that Osorio in fact made such remarks; see Rule 801(d)(2)(A) of the Federal Rules of Evidence. For demeanor reasons, I accept Cardenas Ortega’s denial of Medina’s testimony that Cardenas Ortega said to him that Osorio had told Cardenas Ortega that his probation was going to be extended. 12 Fortune testified that he had seen Osorio hand this document to Cardenas Ortega. However, Fortune’s prehearing affidavit states that he did not know whether this letter was given to Cardenas Ortega. Nor is there any other evidence that he received it. 13 Before testifying for the General Counsel under subpoena, Pedro Medina told Richard Andrews (counsel for the General Counsel) that Medina was reluctant to testify because ‘‘I might have some prob- lems at work because of them’’ and that it ‘‘could happen’’ that Re- spondent would hold against him a mistake at work after the case was over. Medina eventually complied with the subpoena because both Andrews and Respondent told him that his testimony could be required. Later, Pedro Medina voluntarily testified for Respondent. 14 Crisanto testified for the General Counsel, but was not asked about Cardenas Ortega’s work performance. At the time of the hear- ing, Crisanto was still in Respondent’s employ. I draw no inference from his failure to testify about Cardenas Ortega’s work perform- ance. because this was Respondent’s ‘‘normal procedure’’ and to be released at the end rather than the middle of the day causes less ‘‘embarrassment’’ to the employee. However, in his prehearing affidavit Fortune stated that the reason for his decision to defer until after the vote the discharge message to Cardenas Ortega was Respondent’s need to keep the Flexo machine operating. As to the probationary-period matter, the record shows as follows: Respondent follows the policy of putting each newly hired employee on a 90-day probationary period. If the em- ployee completes his probationary period satisfactorily he be- comes a regular employee, becomes eligible for certain fringe benefits, and receives an automatic raise of 50 cents an hour. Respondent has the option of extending that proba- tion if Respondent so desires. With the exception noted infra fn. 11, it is uncontradicted that nobody from management ever told Cardenas Ortega in so many words that his first 90 days of employment were a probationary period. However, Cardenas Ortega did learn from other employees that when they passed their probationary period of 90 days they got an automatic raise. On July 5, 1995, he approached Osorio, and asked about the raise he was supposed to get after 90 days . Osorio said that he had talked to Fortune, and that Fortune had said that ‘‘they weren’t happy with the job that [Cardenas Ortega] was expected to do.’’11 Cardenas Ortega never received a wage increase. His personnel file contains the following document, dated June 26, 1995, all of which is typewritten and which does not bear Osorio’s written sig- nature: From: Juan Osorio To: Guadalupe Cardenas Re: Extension of Probationary Period [Cardenas Ortega’s] work is below standard. He is not able to keep pace with the machine and unable to per- form other jobs, with training at an expected level. We will extend this employee’s probationary period for an additional 90 day period. I will reevaluate his perform- ance on a weekly basis and inform the employee of his progress. The probationary period has been extended to 10–5–95. However, Cardenas Ortega credibly testified that nobody from Respondent ever gave him this document, and that he had never seen it until the General Counsel showed it to him.12 Nor did Osorio come to him every week and tell him how he was doing on the machine. As to Cardenas Ortega’s work performance, the record shows as follows: Fortune testified that between the date of Cardenas Ortega’s hire and his termination he stacked all the cartons produced by the Flexo machine. However, between about June 7 and 12, Cardenas Ortega worked on the band- ing machine, and during an undisclosed period he worked on the gluer. Also, Cardenas Ortega was absent from work dur- ing part of June 5 and on June 6, in consequence of a work- related injury. Moreover (as Osorio knew), Cardenas Ortega had been instructed by the doctor who treated him for this injury to refrain until July 7 from lifting loads which exceed- ed 25 pounds, a weight which Cardenas Ortega’s stacking duties required him to lift from time to time. Further, as dis- cussed infra, Cardenas Ortega credibly testified that on one occasion, Crisanto helped him perform his stacking duties. Fortune testified that Cardenas Ortega’s at least alleged failure to stack bundled cartons fast enough to keep up with the Flexo machine, with a consequent need to shut down the machine so he could catch up, came to Fortune’s attention through personal observation. However, his prehearing affi- davit states that most of what he knew about Cardenas Ortega’s work performance came from Fortune’s discussions with Osorio. In view of the internal inconsistencies in For- tune’s testimony as to the source of his alleged information about Cardenas Ortega’s work, in view of the vagueness of employee Pedro Medina’s testimonial explanation therefor (‘‘sometimes we had to stop the machine because the line was so full . . . maybe [Cardenas Ortega] wasn’t [stacking] fast enough or he couldn’t manage. I don’t know’’),13 and for demeanor reasons, I credit employee Crisanto’s testimony that Respondent had problems with the Flexo machine about twice a month, and Cardenas Ortega’s testimony that he kept up with the Flexo machine, that the line crowded up on only one occasion, that this problem resulted from the operation of the bander, that on this occasion Crisanto helped him with the stacking, and that this was the only occasion on which Cardenas Ortega received help in stacking.14 Moreover, as to the period for which production statistics appear in the record (May 6—August 12, 1995), no particular difference appears between the weeks preceding Cardenas Ortega’s discharge and the weeks afterward. Furthermore, although production was relatively low at the time when (according to Fortune) Cardenas Ortega’s termination for poor production was dis- cussed (that is, the first part of June if not the last part of May), production for the week ending May 26 was the high- est shown in the record; the production records for the weeks ending June 2 and 16 state ‘‘not enough orders’’; and during most of the week ending June 9, Cardenas Ortega was absent VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00023 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 15 My findings in this sentence are based on Medina’s testimony. Cessna did not deny that he so advised Medina, although Cessna tes- tified that the 50-cent increase had nothing specifically to do with Medina’s work performance during his first tour of duty, and that Cessna gave Medina this increase because Cessna felt that $9.50 was low for a truckdriver. Fortune testified that before Medina came back, ‘‘we had determined’’ that because of the difficulty in obtain- ing truckdrivers, the starting rate for truckdrivers would be increased from $9.50 to $10 an hour. 16 My findings as to this conversation are based on Medina’s testi- mony. When asked at the hearing what Medina’s reaction was when he was fired, Cessna testified, ‘‘To the best of my recollection, he said ‘okay, that’s fine.’’’ Cessna was not otherwise asked about the content of this conversation. Cessna’s prehearing affidavit, most of which was received as substantive evidence on motion by the Gen- eral Counsel which was opposed by Respondent, states that Cessna told Medina that he was being discharged for unsatisfactory perform- ance, for damaging a Rollins tractor, for a parking ticket which he had not reported, for ‘‘other undocumented incidents including two damaged trailers,’’ for coming in an hour late one day the previous week, and for driving a company truck on his street, ‘‘which is resi- dential’’. Because Medina impressed me as a more honest witness than Cessna, I credit Medina. As discussed infra, at the hearing Re- spondent produced evidence as to only one damaged trailer. Also, as discussed infra, Medina credibly denied that he had damaged even one trailer, credibly denied coming in late, and credibly testified that there are no restrictions as to trucks on the street where his house is located, and on which he drove his truck to reach his house for lunch. Moreover, as discussed infra, the tractor damage cited by Re- spondent was not caused by Medina. because of a work-related injury or was working on the banding machine. Also, on August 8, 18 days after Cardenas Ortega’s discharge, Respondent issued a disciplinary warning to employee Crisanto (who at all material times has been the operator of the Flexo machine and controls its speed) which blamed him for ‘‘a steady decline in productivity and a dete- rioration of quality in the past few weeks. Your productivity has gone from a high of 4150 pieces per hour average [in May 21–26, when Cardenas Ortega was performing the stacking operator] to 2585 pieces per hour average [in July 30-August 5, after Cardenas Ortega was discharged].’’ Fur- ther, it is uncontradicted that Fortune complimented the Flexo crew (including Cardenas Ortega) in early July; and that he was never orally reproached about his work. Finally, although his personnel file contains two purported typewriten memorandums to Cardenas Ortega from Osorio (dated June 26 and 30) which criticized Cardenas Ortega’s work, it is uncontradicted that management never gave him either of them, and neither of them bears Osorio’s written signature. 3. Allegedly discriminatory discharge of Pete Medina Pete Medina was first hired by Respondent, as a semi- truckdriver, on March 21, 1995, at $9.50 an hour. He re- signed effective April 11, 1995, before completing his proba- tionary period. After his resignation, Respondent hired an- other driver who left after a few days. Thereafter, effective May 1, 1995, Respondent rehired Medina as a semidriver. When Medina was rehired, then shipping supervisor William Cessna, an admitted supervisor, told him that Cessna did not want to keep on having the problems with the drivers which Respondent had had after Medina’s resignation; and that Medina’s initial wage rate would be $10 an hour—50 cents higher than he had been receiving when he resigned-—be- cause Cessna ‘‘was so happy with [Medina’s] work’’ and Medina deserved the higher rate.15 Other drivers did not get a 50-cent increase after May 1. During the interview when Medina was rehired, Cessna told him that he would be on probation for 90 days after his rehire. In May or June 1995, Pete Medina attended a union meet- ing at which he signed a paper to show that he wanted to be represented by the Union. As previously noted, Supervisor Osorio told production employee Pedro Medina that Osorio knew who was attending the meetings. A wage increase to Pete Medina of 50 cents an hour, effective July 8, 1995, was recommended by Cessna and approved by Fortune on July 6, 1995—25 days before the expiration of Medina’s proba- tionary period. As previously noted, other drivers did not get a wage increase after May 1. Fortune testified that it was he who made the final deci- sion to terminate Medina, that Fortune made this decision on Cessna’s advice, and that it was Cessna who selected July 28 as the discharge date. Fortune’s prehearing affidavit states that this decision was made on July 28, 1995, which was the last day Medina worked for Respondent. Cessna testified that it was he who made the determination to discharge Medina. Cessna further testified that he and Fortune talked about let- ting Medina go at the beginning of July, when the ‘‘damage and traffic invoice [see infra] came in’’; Cessna showed Me- dina the ‘‘damage’’ invoice before Medina received his 50- cent raise. Cessna further testified that he and Fortune also discussed letting Medina go about July 14. Cessna went on to testify that he and Fortune decided to fire Medina on July 28, a Friday, because Respondent’s only other driver was to return from vacation the following Monday. On July 28, when Medina returned from making deliv- eries, Cessna said that he had ‘‘news’’ for Medina. Cessna said that he was going to have to let Medina go because Cessna had been told by Fortune and Mikula that Medina had been seen over in his house. Medina said that he had gone to his house (about 2 blocks from Respondent’s plant) to eat his lunch, asked if there was anything wrong with that, and reminded Cessna that he had previously told Medina that he could eat his lunch at home if he wanted to. Cessna said that his boss had said that ‘‘they don’t like that; and they’re telling me that I’m going to have to let you go.’’ Cessna went on to say, ‘‘I’m happy, I don’t have no problem with your work. If I was them, I wouldn’t do this. But I have my bosses, they tell me, and I’m going to have to live with it . . . you’ve been doing a good job.’’16 As an adverse witness for the General Counsel on direct examination, Cessna testified that the ‘‘major reasons’’ for his at least alleged decision to discharge Medina were two accidents which damaged equipment and which he failed to report to management, and (a consideration not mentioned in Cessna’s prehearing affidavit) failure to call in after the last delivery was made. After some prompting by the General Counsel, Cessna further testified that ‘‘to the best of his recollection something about a parking ticket’’ also factored into the discharge decision. Later, on examination by Re- spondent’s counsel, Cessna testified that Medina was dis- charged for the further reasons that he had failed to call in and for ‘‘reporting to work late as opposed to calling in and not showing up.’’ Neither of these last alleged events was the subject of a writeup, and Medina credibly denied engag- ing in such conduct. Medina’s personnel file contains the fol- VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00024 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 25 EXCEL CONTAINER, INC. 17 As a matter of routine, Respondent does not attempt to make permanent records of such matters before the original computer en- tries have disappeared. 18 More specifically, a passenger-side step was missing, the bump- er was shaking, and the tractor had cracks and dents. During Medina’s first tour of duty with Respondent, he had driven this trac- tor, had repeatedly advised Cessna in writing that the tractor had these defects, and had vainly asked him to have at least the bumper repaired. 19 This finding is based on Medina’s testimony. I do not credit Cessna’s testimony that Medina did not telephone him to advise him of the accident on the day it occurred, for demeanor reasons and in view of the inconsistencies in Cessna’s testimony discussed infra fns. 20–21. 20 My finding in this sentence is based on Cessna’s prehearing af- fidavit. Cessna initially testified that Anderson said Medina had caused damage to the parked tractor. Because Cessna gave his affi- davit within 4 months after the incident but testified about it at least 14 months after the incident, because his subsequent testimonial de- scription of his conversation with Anderson does not describe any damage to the parked tractor, and because there is no evidence that Rollins ever billed Respondent for any damage to the parked tractor, I believe that Cessna’s testimonial reference thereto was in error. lowing memorandum, dated July 28, 1995 (the date of Medina’s discharge) and written and signed by Cessna: Pete [Medina] had been warned previously about damage to equipment mainly 2 trailer damage incidents which he denied. After receiving a bill for tractor dam- age from Rollins Leasing and a parking ticket from the city of Elk Grove, we have no other choice but to ter- minate Mr. Medina’s employment. After Respondent ’s counsel had shown this document to Cessna, he testified that the ‘‘main reason’’ for Medina’s dis- charge was that he had been warned previously about dam- age to equipment. Then, Cessna testified as follows: Q. By [Company counsel] McCann: Were there [lesser] reasons for discharge? A. Yes. Q. Would those have been memorialized in any way? A. Yes. Q. How so? A. Attendance and/or tardiness is recorded in the Excel computer system.17 Q. Did you feel a need to enumerate those instances in this memorandum? A. No, I did not. Q. Why? A. Because I felt that this was more than enough jus- tification for letting Pete Medina go. Fortune testified that the July 28 memorandum quoted above accurately reflected all the reasons for Medina’s termi- nation. He testified that tardiness or attendance was not a part of the decision to terminate Medina, that Cessna had never told Fortune that Medina had a tardiness or attendance problem, and that this issue as to Medina had never been dis- cussed with Fortune. However, Fortune’s prehearing affidavit states that Medina was fired partly because ‘‘he was quite late one time’’ during the last week (July 24–28) of Medina’s employment, and Cessna testified that he had want- ed to discharge Medina just before July 21 but kept him on because Respondent’s only other driver was going to be on vacation between July 24 and 28. No writeup for this alleged tardiness incident appears in Medina’s personnel file. Fortune further testified that Medina was not discharged for failing to call in when he would be absent. Fortune testified that he decided to discharge Medina because of ‘‘some accidents,’’ or ‘‘a couple of accidents, doing damage to a truck, a trail- er,’’ which Medina had failed to report; because of a parking ticket which Medina had failed to report; and (a reason not mentioned in the July 28 memorandum) because of Medina’s alleged repeated failure to call in at the end of the day or when he had to wait an extended period of time to make a delivery to a customer. Medina received no writeups in con- nection with his alleged failures to call in. One of the incidents which at least allegedly motivated Medina’s discharge involved two tractors owned by Rollins Truck Rental/Leasing, from which Respondent leases all of its tractors. In early May 1995, pursuant to Cessna’s instruc- tions, Medina drove a tractor-trailer to Rollins’ leasing yard, and exchanged the tractor he initially drove that morning for one which Respondent had left with Rollins some weeks ear- lier to repair the gear. At that time, Rollins’ yard was ex- ceedingly foggy. After making this exchange, he hit the rear- end tires of another Rollins-owned tractor, which was parked in the Rollins yard, with the right side of the front bumper of the Rollins-owned tractor which he had just picked up. Nobody ever told Medina that the parked tractor was dam- aged, and there is no probative or credible evidence that it had been damaged (see infra). However, the Rollins-owned tractor which Medina had just picked up and was driving bore visible body damage which had occurred before Re- spondent had left it with Rollins with a repair order limited to the gear.18 Immediately after the accident, someone from Rollins came over, claimed that Medina had damaged the Rollins-owned tractor which he had been driving, and took some pictures. At this point, using a telephone in his tractor to call Cessna, Medina reported that he had had an accident but that no damage had resulted, to which Cessna responded by telling him to rehook the tractor which he had driven to Rollins to the trailer which he had hauled to Rollins, and to finish his working day.19 That same day, Rollins Account Manager Dave Anderson telephoned Cessna that Medina had hit, with the tractor he was driving, the tractor parked next to him.20 When Medina returned to the plant later that day, Cessna told him that ‘‘Rollins’’ had called Cessna. Medina was ‘‘sketchy’’ (Cessna’s testimonial description) about the matter, but did not contest that it occurred. In mid-May 1995, the tractor which Medina had been driving when he ran into the parked tractor was repaired so as to remove the dents, replace the missing step, and secure the bumper. About June 29, 1995, Cessna received an in- voice from Rollins for $922, for the ‘‘repair [of] front end damage’’ on the tractor which Medina had been driving when it hit the rear tires of the parked tractor. Cessna showed this invoice to Medina, and said that Rollins was claiming that this damage had been done by Medina on Rol- lins’ lot. Medina said that the damage reflected on the in- voice had been done before his accident on Rollins’ lot and that he had reported that accident to Respondent at the time VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00025 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 21 My finding that Medina did not receive an oral warning is based on his testimony. I do not credit Cessna’s testimony that such a warning was given during this interview, for demeanor reasons, be- cause of Medina’s subsequent receipt and his retention of a wage in- crease, and in view of the inconsistencies between Cessna’s testi- mony and his prehearing affidavit. More specifically, Cessna initially testified that he did not talk to Medina about the incident until after receiving a June 28 invoice for repair of the tractor Medina had been driving, but Cessna’s prehearing affidavit describes a conversation with Medina about the incident on the same day in May when it oc- curred. 22 As previously noted, Rollins owns all of the tractors used by Respondent. 23 Medina testimonially speculated that the ticket may have been issued while he was absent from his parked vehicle in order to eat lunch. it occurred (see supra fn. 18). He went on to say that the accident at Rollins’ premises had occurred on a foggy and rainy day, and that the tractor he had hit was misparked. Me- dina never received any discipline, or an oral or written warning, about the matter. He received his 50-cent wage in- crease after Cessna showed him the $922 Rollins invoice, and Cessna took no subsequent steps to cut Medina’s pay.21 He was never asked to pay the $922 which Rollins had billed Respondent for repairing the tractor; it is not Respondent’s practice to require drivers to pay for the cost of repairing damage they may have caused to equipment. As to the parking-ticket incident, the credible evidence shows as follows: Respondent requires drivers to report to management any traffic tickets which they receive. On July 6, 1995, Cessna received from Rollins an invoice for a $25 parking ticket which had been issued on June 8, by the City of Elk Grove, in connection with a tractor being driven that day by Medina.22 This was the first information that Cessna had received about this ticket. When Cessna talked to Me- dina about the matter, Medina said that he could not remem- ber getting such a ticket, and offered to pay for it.23 Re- spondent does not have a practice of requiring drivers to pay parking tickets that are issued to their vehicles. Cessna told Medina not to worry about the ticket, ‘‘we’ll take care of it.’’ Medina’s 50-cent wage increase was approved by Cessna on the day of this interview, and approved (inferen- tially, after Cessna’s approval) by Fortune. Cessna testified that he did not believe he was aware of the parking ticket when he approved Medina’s wage increase, but that Cessna took no steps thereafter to cut Medina’s pay. Cessna further testified that Medina was never disciplined because of the parking ticket. Cessna testifed that in early May 1995 (before the tractor- collision incident) someone (perhaps, an employee) whose name Cessna did not recall told him that a trailer belonging to Respondent had been damaged while Medina was pulling it. Cessna further testified that ‘‘immediately’’ after the dam- age was brought to his attention he took a photograph of the damaged trailer, and that this photograph was the photograph received into evidence as Respondent’s Exhibit 9. Although Respondent assigns a number to each trailer and requires the driver to record this number on his daily work report (see Tr. 442 ll. 5–21 and G.C. Exh. 21), the foregoing evidence is the only record evidence which may tend to show that Me- dina was pulling the photographed trailer when it was dam- aged. Medina’s personnel file contains no writeups in con- nection with a damaged trailer, and Cessna testified that he did not remember whether he gave Medina any oral dis- cipline in connection with the damaged trailer. As discussed supra, Cessna authorized a 50-cent hourly increase for Me- dina several weeks after the date which Cessna testimonially attached to his discovery of the damage to the trailer. Al- though Cessna testified at the end of October 1996 that the damage was ‘‘major’’ and was repaired in 1995, he testified that he could not recall the cost of the repairs. In view of the foregoing, particularly Cessna’s inability to recall who told him that Medina had damaged the trailer or how much repairing it had cost, and for demeanor reasons, I credit Medina’s denial that he was pulling the trailer when it was damaged, and, in addition, infer that Respondent did not hon- estly believe that he did. Cessna testified that on about 12 occasions after Medina’s rehire, he failed to comply with Respondent’s requirement that he call Respondent after each delivery. I credit Medina’s testimony that he invariably made such calls, for demeanor reasons, in view of Cessna’s untruthfulness in connection with the damaged trailer, and because there is no evidence that anyone said anything to Medina about the matter. C. Aftermath Immediately after the July 21, 1995, issuance of the initial tally, which showed that two more of the counted ballots had been cast for the Union than against it, company counsel told Respondent’s management (Mikula, Fortune, Cessna, and Osorio) that ‘‘it wasn’t over yet.’’ On November 3, 1995, the Board directed the Regional Director to open and count the two challenged ballots. The final tally was issued on Decem- ber 1, 1995, and showed that the Union had lost the election by a tie vote. D. Analysis and Conclusions 1. The alleged preelection unfair labor practices In agreement with the General Counsel, I find that Re- spondent violated Section 8(a)(1) of the Act when Supervisor Osorio told employee Pedro Medina that Osorio knew when the union meetings were being held and who was there, and added credence to this statement by accurately telling Me- dina that Medina had been among those present. NLRB v. Q- 1 Motor Express, 25 F.3d 473, 477 (7th Cir. 1994), cert. de- nied 115 S.Ct. 729 (1995); Hertz Corp., 316 NLRB 672, 685 (1995); Bert Wolfe Ford, 239 NLRB 555, 564 (1978). In finding that such statements tended to interfere with and co- erce employees in the exercise of their statutory right to (inter alia) attend union meetings, I note that Medina re- sponded by untruthfully denying that the meeting was a union meeting. Osorio’s remarks were not rendered lawful by the absence of evidence that Respondent had in fact engaged in surveillance. Flexsteel Industries, 311 NLRB 257 (1993). Moreover, I agree with the General Counsel that Respondent further violated Section 8(a)(1) when, after employee Alva- rado untruthfully disavowed to Osorio any interest in the Union, he told her that Respondent could help her to fulfil her expressed desire to buy a house—a remark which, in context, constituted an offer of benefit if she continued her perceived failure to support the Union and, accordingly, vio- lated Section 8(a)(1). K.G. Knitting Mills, 320 NLRB 374, 374 fn. 4, 378 (1995); Frank Leta Honda, 321 NLRB 482, 489 (1996). VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00026 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 27 EXCEL CONTAINER, INC. 24 Thus, as shown infra, Respondent discriminatorily discharged two employees shortly after the election. Moreover, as previously noted, before the election Respondent offered an employee benefits if she continued her perceived failure to support the Union, gave an employee the impression of surveillance over union meetings, and unlawfully interrogated employees about their union activity. 25 NLRB v. Transportation Management Corp., 462 U.S. 393, 398– 403 (1983); NLRB v. Advance Transportation Co., 979 F.2d 569, 573 (7th Cir. 1992); NLRB v. Advance Transportation Co., 965 F.2d 186, 190–191 (7th Cir. 1992); NLRB v. Bestway Trucking, Inc., 22 F.3d 177, 180 (7th Cir. 1994); KNTV, Inc., 319 NLRB 447, 452 (1995); Manno Electric., 321 NLRB 278, 280 fn. 12 (1996). In addition, I find that Respondent violated Section 8(a)(1) when Osorio asked employee Pedro Medina how things were going with the Union and the meetings, and asked employee Alvarado what she knew about the Union and whether she had gone to a union meeting. In so finding, I rely on the fact that the subject of the Union was brought up by Osorio and not the employees, that both employees untruthfully dis- avowed knowledge of the Union, that Alvarado untruthfully denied attending any union meetings, that Respondent later discharged two employees for their union activity and ef- fected reprisals against all the employees because a majority of the ballots initially opened had favored the Union (see infra), that no legitimate reason for these inquiries was ten- dered to the employees or appears in the record, and that Osorio (far from assuring the employee that union activity would not affect how Respondent treated them) implied to Alvarado that Respondent would help her to buy a house if she continued in her alleged lack of interest in the Union. See Central Transport, Inc. v. NLRB, 997 F.2d 1180, 1189– 1190 (7th Cir. 1993); NLRB v. Shelby Memorial Hospital Assn., 1 F.3d 550, 559–560 (7th Cir. 1993); Williamhouse of California, 317 NLRB 699, 713 (1995); and Union National Bank of Pittsburgh, 276 NLRB 84, 87–88 (1985). 2. The alleged postelection unfair labor practices a. Changes in working conditions The record shows that Respondent disliked the Union and did not want it to organize the shop.24 Moreover, imme- diately after the initial tally, which indicated that the Union had won the election, Respondent announced a new work rule which forbade the consumption of food and beverages at the employees’ machines, and also announced the effec- tuation of a new buzzer system which had the effect of limit- ing the employees’ wash-up time to 2 minutes under cir- cumstances where they would previously have begun wash- ing up some time earlier. Furthermore, when the employees went to the lunchroom to eat lunch later that morning, they discovered that Respondent had eliminated certain amenities which had previously been afforded to them. More specifi- cally, the air-conditioner had been rendered inoperative (it was late July), the telephone directly outside the lunchroom had been removed, and the coffee makers from which em- ployees had been able to obtain free coffee had been re- moved. Particularly noteworthy is the fact that Respondent took all of these actions within 3-1/2 hours after the announcement of the initial tally in the representation election. ‘‘Timing alone may suggest anti-union animus as a motivating factor in an employer’s action.’’ NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984). Indeed, even considered in- dividually, the timing of some of such actions is difficult to reconcile with the lawful explanations tendered therefor by Respondent. Thus, the new telephone instrument was not in- stalled until at least 6 weeks after the old one had been re- moved, even though (so far as Fortune knew) the old tele- phone instrument had been perfectly adequate for the pur- pose of making outgoing calls, which was its sole utility to the employees and was a convenience for management. Moreover, as to the coffee makers, Respondent does not con- tend, nor does the evidence show, that the coffee-vending machine was operable when Fortune discarded one of the coffee pots which had been making coffee until and during the election. Furthermore, as to the buzzer system, Respond- ent’s own witnesses gave mutually and internally contradic- tory testimony as to when (if ever) Fortune was advised, be- fore buying a new one at an undisclosed time some weeks or months later, that the system acquired from Monarch ap- peared to have been rendered usable. Likewise tending to show that Respondent’s actions were unlawfully motivated is the falsity or improbability of Re- spondent’s tendered explanations therefor. Thus, Respondent contended that Fortune discarded one of the coffee pots be- cause it was inoperable, and that the knob and cover had been removed from the air-conditioner in preparation for its removal for the purposes of repair. However, free coffee had (as usual) been available in the lunchroom that morning, be- fore the election tally had been announced, and the air-condi- tioner had been producing cold air during the lunch period on the day preceding the election. Furthermore, at no point did mechanic Smith or anyone else testify that the air-condi- tioner broke down on July 21, the day of the election. Also, forbidding employees to continue eating or drinking at their machines appears to be a rather extreme reaction to finding cups and broken bottles in the work area on three occasions in about 7 months. In addition, much of Respondent’s own testimony is inconsistent with any contention that Fortune believed a workable buzzer system had finally been put into place shortly before he announced the effectuation of a buzz- er system; and any professed desire by Respondent to enable the employees to know when to start and when to stop work is difficult to reconcile with Respondent’s action, on the very day that Fortune announced the buzzer system, in discarding a usable wall clock which had hung in the lunchroom and which obviously assisted employees in judging when to re- turn from lunch and breaks. In short, the evidence preponderantly shows that in install- ing a buzzer system which had the effect of limiting wash- up time, in forbidding employees to eat or drink at their ma- chines, in shutting down the lunchroom air-conditioner, in withdrawing the privilege of free coffee, and in removing the telephone outside the lunchroom door, Respondent was moti- vated, at least in part, by the Union’s seeming election vic- tory earlier that morning. Accordingly, such conduct violated Section 8(a)(1) and (3) unless Respondent shows, by a pre- ponderance of the evidence, that Respondent would have taken such action regardless of the tally.25 Repondent has failed to make such a showing. More specifically, Respond- ent has failed to show, by a preponderance of the evidence, that even in the absence of the Union’s seeming election vic- tory, (1) the telephone would have been removed on July 21, VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00027 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26 The complaint does not allege, nor does the General Counsel appear to contend, that Respondent violated Sec. 8(a)(1) by creating the impression that the removal of the microwave was motivated by the election tally. although it could still be used for outgoing calls and was not replaced for at least 6 weeks; (2) the air-conditioner would have been inoperable because it broke down that day; (3) the coffee pots would have been removed and/or discarded on that day, even though they were still usable and the record fails to show the availability on that day of even vending- machine coffee; (4) the buzzer system would have been put into effect the following week, and would have reduced wash-up time to 2 minutes; and (5) employees would have been forbidden to drink beverages or eat at their machines, on the strength of a single recent incident of two broken bot- tles near a machine. It is true that the evidence regarding the buzzer system may indicate that eventually, Respondent would have put a buzzer system into effect. Also, the evi- dence as the coffee-vending machine suggests that perhaps, Respondent would eventually have withdrawn the free coffee privileges. However, the statute forbids the acceleration of changes in employment, where such acceleration is unlaw- fully motivated; see Matson Terminals., 321 NLRB 879 (1996); Rain-Ware, supra, 732 F.2d at 1354. In any event, the evidence does not establish that Respondent would have adjusted its buzzer system so as to decrease its employees’ wash-up time to 2 minutes if Respondent had installed that system at a time, and in a manner, unaffected by the employ- ees’ union activities; nor does the evidence show that Re- spondent would have withdrawn all free coffee privileges on the activation of the coffee-vending machine. For the foregoing reasons, I do not credit Fortune’s denial that he took such action to penalize the employees for seek- ing representation by the Union. See NLRB v Walton Mfg. Co., 369 U.S. 404, 406–408 (1962). Rather, I find that by effecting such changes in employee working conditions, Re- spondent violated Section 8(a)(1) and (3) of the Act. Re- spondent’s contention that some of these retaliatory changes were relatively trivial, even if true, does not constitute a legal defense thereto, particularly because their synchronization emphasized to the employees Respondent’s inclination and power to retaliate against employees with respect to union- ization. Moreover, Respondent somewhat understates the se- riousness of such acts even when considered individually. Thus, the eventual availability of coffee-vending machine is hardly the equivalent of continuously available free coffee. Further, the absence of a lunchroom telephone over a period of weeks or months is not wholly compensated for by either the presence of a die-room telephone whose location ren- dered it less convenient for use during breaks restricted to 15 minutes and a lunch period restricted to 30 minutes, or by the eventual replacement of the telephone instrument. Fi- nally, the absence of an air-conditioner during about the hot- test period in the year is hardly compensated for by its res- toration at a time when the weather would likely have started to cool off a little. However, the General Counsel has failed preponderantly to show that Respondent violated Section 8(a)(1) and (3) when Osorio removed from the lunchroom the microwave oven owned by him. As to this kind of unfair labor practice alle- gation, a critical issue is the motive for the action in ques- tion.26 As to the microwave oven removal, the record fails to show what Osorio’s motive was. The only record evidence which even arguably draws into question the testimony that management never told him to remove the oven is the fact that its removal coincided in time with retaliatory actions by management some of which, like the oven removal, ad- versely affected the lunchroom amenities. I regard this tem- poral coincidence as unsufficient to support an inference that Osorio removed his oven pursuant to higher management’s instructions. Nor do I infer that Osorio acted out of personal dislike for the Union, particularly in view of his avowed dis- agreement with higher management’s decision to discharge Cardenas Ortega for union activity. Accordingly, I need not and do not consider whether such a motive would be attrib- utable to Respondent. I note that there is no evidence that Osorio left the microwave oven in the lunchroom for pur- poses other than personal convenience. As to the microwave oven, the complaint will be dismissed. b. The allegedly discriminatory discharges The credible, and largely undisputed, evidence shows that Respondent disliked the Union; that Respondent claimed knowledge of which employees had attended union meetings; and that such meetings had been attended by Cardenas Or- tega and by Pete Medina. Further, the evidence shows that about 2 weeks before Cardenas Ortega was discharged, For- tune had complimented the work of the three-man crew which included Cardenas Ortega; that Cardenas Ortega had always kept up with the Flexo machine and had never been criticized about his work; that Supervisor Cessna had told Medina when he was rehired in May 1995 that he would be paid 50 cents an hour more than he had received during his previous tour of duty with Respondent because Cessna had been happy with his work; and that before Medina had com- pleted his probationary period, and less than a month before he was discharged, he received a second 50-cent increase which had been recommended by Cessna and approved by Fortune. Further, the evidence shows that Cardenas Ortega was discharged on the day of the July 21 election and Re- spondent’s retaliatory acts against all of its employees; and that during his discharge interview, Osorio said that he was really sorry about Cardenas Ortega’s discharge and, in re- sponse to his comment that his work had recently been com- plimented by Fortune, volunteered that Cardenas Ortega had been one of the people who had worked for the Union—a remark which approached, if indeed it did not constitute, an admission that such union activity was the real reason for his discharge. Finally, when effecting the July 28 discharge of Medina, which according to Cessna had been delayed for a week pending the return from vacation of Respondent’s only other driver, Cessna said that he was happy with Medina’s work and did not want him to be discharged. The General Counsel’s contention that these discharges were discriminatorily motivated gains further support from the evidence showing that the reasons which Respondent tenders therefor are false. Thus, although Cessna’s memoran- dum in Medina’s personnel file states that Medina was dis- charged partly because he damaged two trailers he was haul- ing, as to one of these incidents Respondent offered no evi- dence whatever; and as to the other, the evidence shows that VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00028 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 29 EXCEL CONTAINER, INC. Medina was not hauling the trailer when it was damaged and Respondent did not honestly believe that he was. Further, al- though Cessna told Medina during his discharge interview that he was being discharged because he had been seen over in his house, two blocks from Respondent’s plant, it is uncontradicted that he explained to Cessna that Medina had gone to his house to eat his lunch, and that Cessna had given him permission to do so on a previous occasion. Further, al- though Respondent contends that Medina was discharged partly for having damaged a Rollins tractor when he was driving it in Rollins’ parking lot, and had failed to report this incident when it occurred, the evidence shows that he had in fact immediately reported the collision to which Respondent now chooses to attach the damage to the tractor; that the damage in question had been effected before Medina’s first tour of duty with Respondent, and had been repeatedly re- ported to Respondent some weeks before the collision; that Medina received a merit wage increase after Respondent learned about this incident; and that Medina continued to re- ceive his new wage rate until his discharge 4 weeks later. Also, although Respondent contends that Medina was dis- charged partly for failure to report his having been given a parking ticket, when first finding out about the parking ticket Respondent told him to ‘‘forget it’’ after receiving his rep- resentation that he had not known that he had been ticketed, and made no effort to rescind the wage increase which Cessna approved on the day he learned about the parking ticket. Moreover, although Fortune’s prehearing affidavit states that Medina was discharged partly for being quite late one time, Fortune testimonially disavowed tardiness as a rea- son for Medina’s discharge, and Cessna testified that the dis- charge decision was made before this incident allegedly oc- curred. Further, although Respondent contends that Medina was discharged partly because he repeatedly failed to call in at the end of the day, he was never written up for such al- leged conduct, and the credible evidence shows that Medina in fact called in after making each delivery. Finally, although Respondent contends that Cardenas Ortega was discharged because he stacked bundled cartons at a rate too slow to keep up with the Flexo machine, the credible evidence shows that he in fact kept up with that machine. ‘‘False defenses be- come a two-edged sword in that they may serve to support an ultimate inference of unlawful motive.’’ Western Plant Services, 322 NLRB 183 (1996); see, also, Whitesville Mill Service Co., 307 NLRB 937 (1992); and Triple H. Electric Co., 323 NLRB 549 fn. 2 (1997). I do not credit Fortune’s testimony that he was unaware of Pete Medina’s and Cardenas Ortega’s union activity, in view of Osorio’s state- ment to Pedro Medina that Osorio knew who was attending meetings; in view of Osorio’s statements during Cardenas Ortega’s discharge interview (more specifically, Osorio’s ref- erence to Cardenas Ortega’s union activity upon his ref- erence to Fortune’s having recently complimented the work of Cardenas Ortega’s crew); in view of the fact that the bilin- gual Osorio reported directly to Fortune and (because For- tune and the employees speak different languages) likely gave him more information about the employees than would be expected in a wholly English-speaking setting; in view of Fortune’s internally inconsistent testimony as to other mat- ters; and for demeanor reasons. See NLRB v. Walton Mfg. Co., supra at 408. The General Counsel’s contention that Medina was dis- charged at least partly for unlawful reasons is further sup- ported by the inconsistencies in Respondent’s position as to the surrounding circumstances. Thus, Fortune’s prehearing affidavit states that management’s decision to discharge Me- dina was made on July 28, 1995, which was the last day Me- dina worked for Respondent, and that it was Cessna who se- lected July 28 as the discharge date. However, Cessna testi- fied, and Respondent’s brief states (p. 32), that the decision to discharge Medina was made about a couple of weeks be- fore July 28, and that he was kept on because Respondent’s only other driver was on vacation during the week which ended on July 28. Further, Fortune testified that it was he who decided to terminate Medina and that Fortune made this decision on Cessna’s advice, whereas Cessna, on the other hand, testified that it was he who made the determination to discharge Medina, and that it was he and Fortune who de- cided on the date of Medina’s discharge. Fortune testified that tardiness was not a part of the decision to terminate Me- dina, but Fortune’s prehearing affidavit states that Medina was fired partly because ‘‘he was quite late one time’’ and Cessna testified that Medina was discharged partly for report- ing to work late. Cessna testified, in effect, that Medina was discharged partly because of his attendance, but Fortune tes- tified that attendance was not a factor in the decision to ter- minate Medina. Fortune testified that Medina was not dis- charged for failing to call in when he would be absent; but Cessna testified that Medina was discharged partly for engag- ing in such conduct. Finally, although Fortune testified that the July 28 memorandum reflects all the reasons for Medina’s discharge, and the memorandum refers solely to ‘‘2 trailer damage incidents,’’ ‘‘a bill for tractor damage from Rollins,’’ and the parking ticket, Respondent has (as shown) given a number of other reasons for Medina’s discharge. These inconsistencies in management’s testimony about who decided on Medina’s discharge and on its date and when that decision was made, and management’s inconsistent and shift- ing explanations for that decision, further support the infer- ence that his discharge was unlawfully motivated. Scientific Ecology Group, 317 NLRB 1259 (1995); P*I*E Nationwide, 282 NLRB 1060, 1065 (1987), enfd. 894 F.2d 887 (7th Cir. 1990); Laidlaw Transit, Inc., 315 NLRB 509, 512 (1994); and Trader Horn of New Jersey, 316 NLRB 194, 199 (1995). For the foregoing reasons, I conclude that the evidence preponderantly shows that Respondent discharged Cardenas Ortega and Pete Medina at least partly because of their union activity; and I do not credit Fortune’s testimony otherwise. Accordingly, these discharges violated Section 8(a)(1) and (3) unless Respondent has shown, by a preponderance of the evidence, that the employees would have been discharged even in the absence of their union activity. See the cases cited supra at fn. 25. Respondent has failed to make such a showing. Because the legitimate reasons discussed above were merely pretextual, such reasons cannot serve to meet Respondent’s burden. T & J Trucking Co., 316 NLRB 771 (1995). Although Fortune did testify that Medina was dis- charged partly because he failed to call in when a customer delayed in accepting a delivery, Cessna did not so testify, and there is no other evidence as to this matter. Accordingly, I find that Respondent has not met its burden, and that the discharge of Cardenas Ortega and Pete Medina violated Sec- tion 8(a)(1) and (3) of the Act. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00029 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 27 The discriminatees are to be offered reinstatement as non- probationary employees. Gulf States United Telephone Co., 253 NLRB 603, 603 fn. 2, 608 fn. 17 (1980), enfd. 694 F.2d 92 (5th Cir. 1982). On the expiration of Medina’s probationary period and Cardenas Ortega’s allegedly extended probationary period, during which they were unlawfully discharged, each of them would have received a 50-cent hourly increase and become eligible for certain fringe benefits. Accordingly, such increases and new benefits are to be included in their gross backpay. Notwithstanding the cir- cumstances surrounding Respondent’s alleged June 26, 1995, exten- sion of Cardenas Ortega’s probationary period from July 5, 1995, to October 5, 1995, the General Counsel does not appear to claim that his backpay and benefits following his unlawful July 21, 1995, dis- charge should be calculated as if his probationary period had ended on July 5, or that he should receive any backpay for the period be- tween July 5 and his discharge. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(1) of the Act, through Supervisor Juan Osorio, by giving employees the im- pression of surveillance over union meetings, by offering benefits to employee Avelina Alvarado if she continued her perceived failure to support the Union, and by interrogating employees Alvarado and Pedro Medina about the Union. 4. Respondent has violated Section 8(a)(1) and (3) of the Act by engaging in the following conduct: (a) Forbidding the consumption of food and beverages at the employees’ machines. (b) Installing a buzzer system which had the effect of cur- tailing employees’ wash-up time. (c) Ceasing the use of air-conditioning in the employees’ lunchroom. (d) Removing the telephone instrument outside the em- ployees’ lunchroom. (e) Removing coffee makers from the employee lunch- room from which employees could obtain free coffee. (f) Discharging Guadalupe Cardenas Ortega and Pete Me- dina. 5. The unfair labor practices described in Conclusions of Law 3 and 4 affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not violated the Act by removing a microwave oven from the employee lunchroom. THE REMEDY Having found that Respondent has violated the Act in cer- tain respects, I shall recommend that Respondent be required to cease and desist from such conduct, or like and related conduct, and to take certain affirmative action necessary to effectuate the policies of the Act. Thus, Respondent will be required to resume providing free coffee to the employees, to the same extent that such coffee had been provided before July 21, 1995; to offer Cardenas Ortega and Pete Medina re- instatement to their former positions or, if no such positions exist, to substantially equivalent positions; to make the em- ployees whole for any losses they may have suffered by rea- son of their failure to receive free coffee; and to make Cardenas Ortega and Pete Medina whole for any loss of pay and other benefits they may have suffered by reason of the discrimination against them.27 Backpay is to be calculated as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950). Interest is to be paid on the sums due under this Order, as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Also, Respondent will be required to expunge from its records all references to Cardenas Ortega’s and Pete Medina’s unlawful termination, including, without limitation, the document dated June 26, 1995, which purports to extend Cardenas Ortega’s probationary period (G.C. Exh. 9); the document dated June 30, 1995, purporting to constitute a per- formance review as to Cardenas Ortega (G.C. Exh. 10); his status report dated July 21, 1995 (G.C. Exh. 11); the docu- ment dated July 24, 1995, purporting to deal with his dis- charge (G.C. Exh. 12); the invoice dated June 28, 1995, from Rollins Truck Rental/Leasing, to the extent that it names Pete Medina (G.C. Exh. 18); and the status/payroll change report and attachment as to Pete Medina dated July 28, 1995 (G.C. Exh. 23). Further, Respondent will be required to notify these employees in writing (in English and Spanish) that this has been done and that the actions and matters reflected in these documents will not be used against them in any way. Also, Respondent will be required to post appropriate no- tices in English and in Spanish. In Indian Hills Care Center, 321 NLRB 144 (1996), the Board modified its standard no- tice-posting order by adding a provision for mailing of no- tices if the facility were closed down, and without regard to whether the record showed that the facility had in fact closed down. This notice-mailing requirement is reflected in para- graph 2(i) of my recommended Order. In Indian Hills, if the facility were to be closed down, notices were to be sent to all employees who had worked for the respondent employer at any time since a particular date (specified in the Order) which was subsequent to the commission of the unfair labor practices found and whose inclusion in the Order is unex- plained in the Board’s Decision. In Quebecor Printing Dickson, Inc., 323 NLRB 137 (1997), which found unfair labor practices on November 3 and 8, 1995, the Board issued an Order which called for mailing notices (if the facility closed) at any time since November 9, 1995, ‘‘which was the date that the Union filed the instant unfair labor practice charge’’; no other charges had been filed. Because the first charge filed herein (filed on July 25, 1995) attacked the dis- charge of Cardenas Ortega and I have found it to be unlaw- ful, selection of that date as a trigger to notice-mailing obli- gations would be administratively easy in the instant case. However, in procedurally different cases, selection of the triggering date might be complicated if the complaint allega- tions generated by the initial charge had been dismissed, if all of the charges had been filed before the occurrence of the unfair labor practices found, or if it is unclear which of sev- eral charges was the first to generate a sustained complaint allegation; cf. NLRB v. Fant Milling Co., 360 U.S. 301 (1959). Because the purpose of the notice is to counteract the effect of unfair labor practices on the employees who may have been exposed thereto, I conclude that the triggering date should be the date that the unfair labor practices began—in this case, July 17, 1995. I do not believe that the appropriate- ness of such a policy is diminished by the fact that such a mailed notice would reach more of the employees who may have been exposed to unfair labor practices than would have VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00030 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10 31 EXCEL CONTAINER, INC. 28 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended 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.If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 29 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.’’ been reached if the facility had still been in operation and, therefore, the notices would have been posted. Indeed, a good case could be made for requiring such a facility to mail notices to exposed employees who had been separated before notices were posted in the facility. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended28 ORDER The Respondent, Excel Container, Inc., Aurora, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Giving employees the impression of surveillance over meetings of Teamsters Local 714, affiliated with Inter- national Brotherhood of Teamsters, AFL–CIO. (b) Offering benefits to employees if they continue to re- frain from supporting Local 714. (c) Interrogating employees about Local 714 in a manner constituting interference, restraint, or coercion. (d) Discouraging membership in Local 714, or any other labor organization, by forbidding the consumption of food and beverages at employees’ machines, by installing buzzer systems, by curtailing employees’ wash-up time, by ceasing the use of air-conditioners, by removing telephones, by with- drawing the privilege of free coffee, by discharging employ- ees, or by otherwise discriminating in regard to hire or tenure of employment or any term or condition of employment. (e) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Gua- dalupe Cardenas Ortega and Pete Medina full reinstatement, as nonprobationary employees, to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed. (b) Make them whole for any loss of earnings and benefits they may have suffered by reason of the discrimination against them, in the manner set forth in the remedy section of this decision. (c) Rescind the rule which forbids employees to eat or to drink beverages at their machines. (d) Restore the privilege of free coffee to the employees, in the same manner that it was available before July 21, 1995; and make employees whole for any losses they may have suffered by reason of the withdrawal of free coffee privileges, in the manner set forth in the remedy section of this decision. (e) Afford employees the same amount of paid wash-up time which they received before July 24, 1995. (f) Eliminate the buzzer system instituted on July 24, 1995, unless Respondent can show that such a system would have been instituted after July 24, 1995, even in the absence of union activity. (g) Within 14 days from the date of this Order, remove from its files (1) all references to the unlawful discharge of Guadalupe Cardenas Ortega and Pete Medina; (2) the docu- ment dated June 26, 1995, which purports to extend Cardenas Ortega’s probationary period; (3) the document dated June 30, 1995, purporting to constitute a performance review as to Cardenas Ortega; (4) Cardenas Ortega’s status report dated July 21, 1995; (5) the document dated July 24, 1995, purporting to deal with his discharge; (6) the invoice dated June 28, 1995, from Rollins Truck Rental/Leasing, to the extent that it names Pete Medina; and (7) the status/payroll change report and attachment as to Pete Me- dina dated July 28, 1995. Within 3 days thereafter, notify these employees in writing, in Spanish and English, that this has been done, and that the actions and matters reflected in these documents will not be used against them in any way. (h) Preserve and, within 14 days of a request, make avail- able to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or useful in analyzing the amount of backpay due under the terms of this Order. (i) Within 14 days after service by Region 13, post at its facility in Aurora, Illinois, copies, in Spanish and English, of the attached notice marked ‘‘Appendix.’’29 Copies of the no- tice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized rep- resentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, includ- ing all places where notices to employees are customarily posted. 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 busi- ness 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 em- ployees employed by the Respondent at any time since July 17, 1995. (j) 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. Paragraph VI(a)(iv) of the complaint is dismissed. VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00031 Fmt 0610 Sfmt 0610 D:\NLRB\325.002 APPS10 PsN: APPS10