Intl. Baking Co. & Earthgrains

INTERNATIONAL BAKING CO. & EARTHGRAINS 348 NLRB No. 76 1133 Sara Lee d/b/a International Baking Company and Earthgrains and Freight, Parcel, Bakery, Dairy, Meat, Poultry and Factory Workers in the Los Angeles Metropolitan Area; General Truck Drivers, Warehousemen and Helpers Los Ange- les, San Bernardino, Riverside Counties, Cali- fornia; Agricultural and Related Product Work- ers in the California Counties of San Diego, Im- perial, Orange, Alameda, Los Angeles, San Ber- nardino, Ventura, Santa Barbara, Kern, San Luis Obispo, Tulare, Kings, Monterey, San Benito, Fresno and Merced, Local 63, Interna- tional Brotherhood of Teamsters1 and Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, Local 37, AFL– CIO, CLC and Martin Sanchez. Cases 21–CA– 36154, 21–CA–36155, 21–CA–36180, 21–CA– 36491, and 21–CA–36201 November 22, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On July 29, 2005, Administrative Law Judge Lana H. Parke issued the attached decision. The Respondent, the General Counsel, and the Bakery, Confectionery, To- bacco Workers and Grain Millers International Union, Local 37, AFL–CIO, CLC (Local 37) filed exceptions and supporting briefs. The Respondent filed answering briefs to the Charging Party’s and the General Counsel’s exceptions and the General Counsel filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions2 and briefs and has decided to affirm the judge’s rulings, findings,3 and conclusions as 1 We have amended the caption to reflect the disaffiliation of the In- ternational Brotherhood of Teamsters from the AFL–CIO effective July 25, 2005. 2 No exceptions were filed to the judge’s dismissal of allegations that the Respondent violated Sec. 8(a)(1) by: threatening employees Martin Sanchez and Ruben Luna; threatening the likelihood of future union- called strikes and concomitant job loss if employees selected the Union; threatening the outsourcing of product delivery if employees selected the Union; and interrogating employee Sanchez. Further, there were no exceptions to the judge’s dismissal of the allegation that the Respon- dent violated Sec. 8(a)(3) by discharging employee Guadalupe Arteaga. 3 The Respondent, the General Counsel, and Local 37 have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility reso- lutions unless the clear preponderance 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 care- fully examined the record and find no basis for reversing the findings. modified4 and to adopt the recommended Order as modi- fied and set forth in full below.5 We agree with the judge, for the reasons set forth in her decision, that the Respondent violated Section 8(a)(1) of the Act by interrogating employees, creating an im- pression of surveillance, threatening the outsourcing of work because of the Union, and threatening reprisals for union activity.6 However, we find merit in the Respondent’s conten- tion that the General Counsel’s failure to amend the complaint to include the violations allegedly committed by Logistics Manager Jesse Medina precludes considera- tion of them here. Further, as explained below, we find, contrary to the judge, that: Supervisor Sara Dominguez did not impliedly threaten an employee that supporting the Union would harm the employee’s pay and seniority; Supervisor Manuel Arteaga did not unlawfully equate voting for the Union with disloyalty to the Respondent; and Human Resources Director Irma Elioff did not im- pliedly promise to continue a flexible discipline policy if employees rejected the Union, or impliedly threaten em- ployees with a strict discipline policy if they selected the Union. Although we adopt the judge’s finding that Elioff’s statements to an employee at an unemployment hearing did not violate Section 8(a)(1), we do so for the reasons set forth below. Finally, as explained below, we adopt the judge’s findings that the Respondent did not violate Section 8(a)(3) by warning and suspending employee Felipe Serrano for engaging in union activity,7 or by sus- pending and discharging employee Maria Zarco.8 I. FINDINGS REGARDING SUPERVISOR JESSE MEDINA The judge found, based on testimony elicited by the General Counsel at the hearing, that Logistics Manager 4 Pursuant to Reliant Energy, 339 NLRB 66 (2003), Charging Party Local 37 was permitted to call to the Board’s attention its recent deci- sions in U-Haul Co. of California, 347 NLRB 375 (2006); Nordstrom, Inc., 347 NLRB 294 (2006); and Longs Drug Store California, Inc., 347 NLRB 500 (2006). 5 We shall modify the judge’s recommended Order to conform to the violations found. We shall also substitute a new notice in conformity with the Order as modified. 6 In adopting the judge’s finding that Supervisor Arturo Arteaga unlawfully threatened employee Guadalupe Arteaga, Chairman Battista notes that the Respondent excepted to the judge’s finding only on the basis of her credibility resolutions. 7 We correct the judge’s inadvertent error in stating that the Respon- dent discharged Serrano. Because, as discussed below, we do not find that Supervisor Jesse Medina unlawfully warned employee Felipe Serrano not to invite other employees to a union meeting, we do not adopt the judge’s finding that the Respondent violated Sec. 8(a)(1) by including this incident in Serrano’s final notice. 8 We find, as discussed below, that Zarco’s suspension and discharge did not violate Sec. 8(a)(1), (3), or (4) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1134 Medina unlawfully interrogated employees concerning the Union, impliedly threatened employee Guadalupe Arteaga with unspecified reprisals, solicited employee Serrano to find out who supported the Union, and warned Serrano not to invite other employees to a union meeting, all in violation of Section 8(a)(1). Although none of these allegations was alleged in the complaint or added as amendments at the hearing, the judge nonetheless found Medina’s conduct unlawful on the basis of her view that it was “closely connected” to the subject matter of other complaint allegations and was fully litigated. The Respondent excepts, arguing that it had no notice that Medina’s conduct was at issue. The Respondent contends that the General Counsel’s failure to amend the complaint deprived the Respondent of notice that Me- dina’s conduct was at issue, and prevented it from fully defending against these allegations. Although the Re- spondent acknowledges that it called Medina as a witness to testify, it contends that it did so to address matters specifically alleged in the complaint. The Respondent argues that it questioned Medina only briefly on some, but not all, of the issues involving the unalleged 8(a)(1) violations, and that it would have adduced comprehen- sive testimony from Medina on those issues had the General Counsel amended the complaint. We find merit in the Respondent’s argument. As noted above, the complaint did not allege that Me- dina engaged in any conduct violative of Section 8(a)(1). Although the complaint did allege several 8(a)(1) viola- tions, those allegations were against other persons and were very precise. The complaint specifically identified the supervisors or agents who allegedly committed the unlawful acts, detailed when those acts allegedly oc- curred, and described the substance of those acts. The complaint listed 12 separate allegations of such miscon- duct by 5 supervisors or agents. Not a single one of these detailed complaint allegations named Medina as having committed any such act. Moreover, the General Counsel moved to amend the complaint on another mat- ter at the hearing, but made no such motion with respect to any conduct allegedly engaged in by Medina. Nor did the General Counsel argue, in her brief to the judge, that Medina committed any violations. The Respondent, not- ing that the General Counsel had not amended its com- plaint with respect to Medina, stated in its brief to the judge that it would not address Medina’s conduct. De- spite this, the judge found that Medina’s conduct violated the Act. Due process requires that a party be on notice of the General Counsel’s contentions. See generally Mine Workers District 29, 308 NLRB 1155, 1158 (1992). The Respondent, however, did not receive such notice. By virtue of the allegations in the complaint and amended complaint, and the position of the General Counsel at the hearing, the Respondent had no notice that Medina’s conduct was in issue, until the judge, sua sponte, found these violations in her decision. In the circumstances of this case, with multiple allegations concerning conduct by various personnel, the Respondent was entitled to know, during the course of the litigation, what conduct the General Counsel contended was unlawful so that it could offer rebutting evidence. Here, the complaint does not mention Logistics Manager Medina, although it lists five other individuals, including one also with the last name of Medina, but who was not related to the logistics manager. The complaint distinctly lists the offending persons and the conduct in which those persons allegedly engaged. There is no apparent relationship between any of this conduct and that purportedly engaged in by Me- dina. Because the General Counsel failed to place the lawfulness of the statements attributed to Medina at is- sue, the Respondent was deprived of the opportunity to adequately address the questions.9 We cannot conclude, therefore, that the issues involving Medina were fully and fairly litigated, and thus we cannot find that Me- dina’s conduct violated the Act.10 II. THE ALLEGED 8(a)(1) STATEMENTS The Respondent manufactures bakery products at its Vernon, California facility where it employed between 18–20 shipping and receiving employees and 11 delivery drivers. In 2002, Local 37 conducted a representation campaign among the Respondent’s shipping and receiv- ing employees, culminating in a Board-conducted repre- sentation election, which Local 37 lost. In early spring 2003, the Teamsters (the Union) commenced an organ- izational campaign among the Respondent’s drivers.11 The Union filed a representation petition in September and won the October 16 election by a vote of seven to four. A. In September, Supervisor Sara Dominguez told employee Guadalupe Arteaga that “the Union wasn’t a good thing. That it wasn’t right. That [he] was one of the most senior drivers there with more time there.” Dominguez further told Arteaga that Arteaga was mak- ing decent money, that the Union would harm him, and that it would be better for him not to sign a union card. 9 For example, as discussed above, the Respondent did not believe it was even necessary to address Medina’s statements in its brief to the judge. 10 See generally Aljoma Lumber, 345 NLRB 261, 263 (2005) (alle- gation involving different individuals from those listed in complaint insufficiently related to warrant consideration). 11 All dates hereafter refer to 2003, unless otherwise indicated. INTERNATIONAL BAKING CO. & EARTHGRAINS 1135 The judge found that Dominguez impliedly threatened Arteaga with unspecified reprisals if he supported the Union. She found that the statements violated Section 8(a)(1) of the Act because they conveyed a message that union support would negatively impact Arteaga’s senior- ity and pay. We disagree, and find that Dominguez was merely ex- pressing her lawful opinion concerning the effects of unionization on the employees. Section 8(c) provides that “[t]he expressing of any views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice . . . if such expres- sion contains no threat of reprisal or force or promise of benefit.” “Intemperate” remarks that are merely expres- sions of personal opinion are protected by the free speech provisions of Section 8(c). Sears, Roebuck & Co., 305 NLRB 193 (1991). We find that Dominguez’ remark did not rise to the level of unlawful conduct. Dominguez’ comments amounted to nothing more than an expression of her per- sonal belief that Arteaga did not need the Union and would not benefit from it. Such a statement is no differ- ent in kind from one in which an employer lawfully tells employees there is no need to call a union in to resolve issues.12 For the same reason, we disagree with the judge that the Respondent violated Section 8(a)(1) when, 1 or 2 days before the election, Supervisor Manuel Arteaga admonished employee Martin Sanchez not to “do wrong by us” in the upcoming vote. The judge found the state- ment unlawful because, in her view, it equated loyalty to the Company with opposition to the Union and suggested that voting for the Union would “wrong” the Respon- dent. We disagree. As explained above, Manuel Arteaga’s statement urging Sanchez not to “do wrong by us” was a lawful expression of the supervisor’s opinion on the dis- advantages of unionism and did not impart a threatening meaning.13 B. Prior to the October election, the Respondent held three meetings with its drivers concerning the upcoming union election. At the meetings, Human Relations Direc- tor Elioff told employees that in the event they were even 5 minutes late getting to work “unfortunately under a union contract if there is a disciplinary procedure in that 12 See, e.g., Howard Johnson Co., 242 NLRB 386 (1979) (telling employees that the company was convinced they did not need a union because it would “only make things more difficult for all of us” not violative, since it “merely sets forth [the employer’s] views on the disadvantages of unionism and does not impart a threatening mean- ing”). 13 Howard Johnson Co., supra. union contract we would not have the luxury of deviating from it because we end up with union grievances as a result of it.” The judge found that Elioff’s statement carried with it both an implied promise (continuation of the current, presumably flexible, disciplinary approach if the drivers rejected the union) and an implied threat (conformity to strict disciplinary proceedings if the drivers chose union representation). Accordingly, she found that Elioff’s statement regarding the potential impact of a contractual disciplinary procedure violated Section 8(a)(1). We dis- agree. Generally, an employer does not violate the Act by in- forming employees that unionization will bring about “a change in the manner in which employer and employee deal with each other.” Tri-Cast, Inc., 274 NLRB 377 (1985). An employer may lawfully tell its employees that its freedom to deal directly with them will be con- strained if they choose union representation. This is es- pecially so, where, as implied in Elioff’s statements, the change would be as the result of a negotiated collective- bargaining agreement. The fact that such a statement might tend to discourage union support among employ- ees who prefer to deal with their employer on an individ- ual basis, does not render the statement unlawful.14 Ac- cordingly, we find that Elioff’s remarks were protected under Section 8(c) of the Act and we shall dismiss this complaint allegation. C. The Respondent discharged Guadalupe Arteaga on January 12, 2004.15 Following his discharge, Guadalupe Arteaga filed for unemployment benefits with the State of California. Employee Felipe Serrano testified at the unemployment hearing in support of Guadalupe Arteaga. During her cross-examination of Serrano at the hearing, Human Resources Director Elioff asked Serrano if he was on “final warning status.” According to Elioff, she asked the question essentially to show potential bias on Serrano’s part. The judge found that such a question could be viewed as a reminder to Serrano that he was on shaky discipli- nary grounds with the Respondent and that he had better be careful as to how he testified. The judge noted, how- ever, that Elioff asserted that her intent was solely to 14 Elioff did not say that stricter discipline would be imposed under a union contract. She said that if there were a union contract calling for a certain procedure, and if the Respondent deviated from it, there might be a union grievance. Thus, our colleague vastly over-reads the state- ment. Nor was there a promise of benefit. The Respondent was simply ob- serving that the present regimen of flexibility would obtain if the Union lost the election. 15 As noted above, no party excepted to the judge’s finding that the discharge did not violate Sec. 8(a)(3) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1136 bring to the unemployment judge’s attention that Serrano arguably had reason to be disgruntled with the Respon- dent. Accordingly, she dismissed this allegation of the complaint. The General Counsel excepts, contending that by rely- ing on Elioff’s subjective intent, the judge applied the wrong standard in evaluating the legality of Elioff’s questioning of Serrano. We agree. The test for deciding whether a statement constitutes a threat of unspecified reprisal is whether it reasonably tends to coerce employ- ees in the exercise of their statutory rights. See, e.g., Exterior Systems, 338 NLRB 677, 679 (2002). Applying that test here, we find that Elioff’s asking Serrano whether he was on “final warning status” would not lead an employee reasonably to believe that he was being coerced, but rather that his credibility was being legiti- mately questioned. Moreover, we note that the question merely elicited an indisputable fact. Because Serrano was in fact on final warning status at the time of the un- employment proceeding and the Respondent had the right to establish this fact with reference to his credibil- ity, Elioff’s question was lawful. Accordingly, we find that Respondent did not violate Section 8(a)(1) by threat- ening Serrano. III. SUSPENSION AND TERMINATION OF EMPLOYEE MARIA ZARCO In 1994, the Respondent hired Maria Zarco. Employee Auria Chavez had requested that Sara Dominguez, a su- pervisor in the human resources office, hire Zarco, who was Chavez’ sister. Then and later, Dominguez social- ized with Chavez and other employees who described themselves as Zarco’s sisters and Mexican nationals. Zarco served as Local 37’s observer at the election held in 2002. In August 2003, Zarco testified exten- sively in a Board unfair labor practice and objection hearing concerning that election. All of the Respondent’s employees, including Zarco, were required by Federal law to provide the Respondent with employment authorization documents. The Re- spondent maintained a “tickler” system designed to alert the human resources department monthly of work per- mits due to expire within 90 days so that the staff could remind employees to renew their permits. In January 2004, while reviewing the tickler files, Elioff noticed that Zarco’s work permit was due to expire in 90 days. Ac- cording to her regular business practice, Elioff reviewed Zarco’s permit which listed Guatemala as her country of origin.16 Believing Zarco to be from Mexico and not from Guatemala, Elioff decided to investigate. 16 Copies of Zarco’s work permit from 1998–2004 showed the coun- try of birth as Guatemala. Dominguez, who reviewed Zarco’s previous Meanwhile, as described above, on January 12, 2004, the Respondent lawfully terminated Guadalupe Arteaga. The next day, employee Hector Magana, in the presence of Supervisor Manuel Arteaga, asked Zarco if she in- tended to support Guadalupe Arteaga in his expected protest against his discharge. Zarco answered that Gua- dalupe’s assertions against Supervisor Arturo Arteaga were true. The following day, Elioff pointed out to Zarco the word “Guatemala” on Zarco’s work permit and said “But we all know you are from Mexico.” Zarco replied that she had “fixed” her papers like a lot of other people by saying that she was from Guatemala.17 Elioff told Zarco not to tell her anything more that would re- quire her to terminate Zarco. She suspended Zarco and told her to come back in a week with a letter from the Immigration and Naturalization Service (INS) correcting the error. Later that day, Zarco wrote a letter supporting Guada- lupe Arteaga’s version of the events leading to his dis- charge. Subsequently, an assistant to Zarco’s immigra- tion lawyer sent the Respondent a letter referring to Zarco as a native of Guatemala but failing to address the accuracy of that information. Elioff told Zarco and her attorney that the letter was insufficient and that the Re- spondent required a letter from the INS rectifying the error on Zarco’s work permit to correctly read that Zarco was from Mexico. No such letter was provided. On January 22, 2004, the Respondent terminated Zarco. Elioff told Zarco that the company attorneys had decided she should be fired and that the Respondent could not allow her to work knowing that her work permit was not legal. The judge found that Zarco engaged in protected con- certed activity when she testified at the 2003 Board hear- ing, that the Respondent knew of her protected concerted activity, and that Zarco had suffered an adverse employ- ment action. The judge found, however, that the General Counsel did not establish the necessary motivational nexus between Zarco’s protected concerted activity and the adverse employment action.18 Accordingly, the judge concluded that the General Counsel failed to establish a prima facie case that the Respondent suspended and ter- minated Zarco in violation of Section 8(a)(4) because she testified at a hearing before the Board.19 work permits, testified she had previously failed to notice that Guate- mala was named as the country of birth. 17 A consequence of the Nicaraguan Adjustment and Central Ameri- can Relief Act, 8 U.S.C. § 1101 (NACARA), was that certain Guatema- lans were eligible for more favorable immigration treatment than Mexi- can citizens. 18 American Garden Management Co., 338 NLRB 644 (2002). 19 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). INTERNATIONAL BAKING CO. & EARTHGRAINS 1137 The judge then evaluated whether the suspension and discharge violated Section 8(a)(1). She found that al- though the suspension and the termination were not al- leged as independent 8(a)(1) violations, the issue was fully litigated and the Respondent’s defense would be the same as the one it put forth in the 8(a)(4) case.20 The judge found that Zarco engaged in protected concerted activity when she wrote a supportive letter for Guadalupe Arteaga regarding his supervisor’s conduct. The judge found, however, that the Respondent met its burden of establishing that it would have suspended and thereafter terminated Zarco even if she had not engaged in pro- tected concerted activity. Accordingly, the judge found that Zarco’s suspension and termination did not violate Section 8(a)(1) of the Act. The General Counsel and Local 37 except to the judge’s dismissal of the 8(a)(4) allegation and to the judge’s failure to address the complaint’s allegation that Zarco’s suspension and termination violated Section 8(a)(3). As to the 8(a)(3) allegation, they contend that Zarco engaged in union activity when she acted as an observer for Local 37 in the 2002 election and testified for Local 37 at the Board hearing, that the Respondent had knowledge of Zarco’s union activity, and that the Respondent’s numerous 8(a)(1) violations established animus. The General Counsel and Local 37 further as- sert that in light of the Respondent’s virulent and endur- ing antiunion campaign, the record amply demonstrates a nexus between Zarco’s union activity and her discharge. We agree with the General Counsel that the judge should have specifically considered the complaint’s alle- gation that Zarco’s suspension and discharge violated Section 8(a)(3) of the Act, but we find her omission to be nondeterminative. Thus, assuming arguendo that the General Counsel established a prima facie case that the Respondent violated Section 8(a)(1), (3), and (4) of the Act by suspending and discharging Zarco, we find, as did the judge, that the Respondent met its burden of showing that it would have taken this action regardless of her pro- tected activity, union activity, and participation in Board proceedings. That is, the Respondent met its burden of showing that it would have suspended and terminated Zarco for having an improper work permit. The Respon- dent established that it was responsible for seeing that Zarco possessed acceptable documentation of authoriza- tion for employment in the United States. Also, the ap- parent discrepancy in Zarco’s country of origin was dis- covered in the regular course of Elioff’s practice of re- 20 We find it unnecessary to decide whether the suspension and ter- mination, considered as independent violations of Sec. 8(a)(1), were closely related to the complaint allegations and fully litigated because we conclude that, in any case, those actions were lawful. viewing work permits. As noted above, the Respondent consistently maintained a system to review work permits that were due to expire. Thus, after Zarco informed Elioff that she had “fixed” her papers to indicate that she had come from Guatemala rather than Mexico, the Re- spondent concluded, given an employer’s burden of compliance under the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324 (IRCA), that it risked civil and/or criminal liability by retaining Zarco, whom it be- lieved deceptively obtained work authorization. We therefore find that the Respondent established that it would have suspended and discharged Zarco even in the absence of her protected concerted activities.21 Although our dissenting colleague concedes that the Respondent could take some action with respect to Zarco, she challenges the discharge decision on the basis that it was “abrupt” and because it was “implausible” that an employer would discharge an employee so quickly in these circumstances. We do not agree. First, our colleague relies upon the discharge of Arteaga and the suspension of Serrano. However, as the dissent con- cedes, the judge found—and we agree—that these two incidents of adverse action did not violate the Act. Thus, the Respondent’s lawful conduct with respect to these other employees does not establish that it was seeking to rid itself of union adherents or establish union animus. Nor do we find that the timing of the Respondent’s dis- charge of Zarco was suspicious.22 When the Respondent realized, in the regular course of its review of employee work permits, the apparent discrepancy between Zarco’s soon-to-expire permit and its understanding of her home country, the Respondent informed Zarco precisely of what assurances it needed from her, and provided her adequate time to obtain counsel to resolve the issue. Although the dissent contends that there was insufficient time for Zarco to obtain a corrective letter, the record shows that the Respondent gave Zarco 8 days to obtain the letter, i.e., from January 14 to 22. Zarco never asked for more time based on INS delay or any other reason. Further, it is well established that the Board does not substitute its own business judgment for that of the em- ployer in evaluating whether conduct was unlawfully 21 As the judge found, whether the Respondent was correct in its be- lief that it risked legal liability by retaining Zarco is not the issue before the Board. The issue is, rather, whether the Respondent violated the Act by terminating Zarco. That such a termination may not have been compelled by immigration laws does not convert the discharge here to a violation of the Act. 22 Our colleague also attempts to link Zarco’s discharge with an ear- lier case where the Board found that Elioff had unlawfully discharged an employee. Yet our colleague concedes that the Respondent did not violate the Act with respect to the other discharges here, and indeed agrees that there is no 8(a)(4) or (1) violation here. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1138 motivated.23 Rather, the issue is whether the Respondent would have discharged Zarco absent her protected activ- ity. Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), affd. mem. 127 F.3d 34 (5th Cir. 1997). There is nothing in the timing of the Respondent’s dealing with Zarco that raises the inference of unlawful action. As to the dissent’s claim that it was “implausible” that the Respondent would have discharged a 10-year em- ployee with a good work record, the judge specifically found “no evidence [that] Ms. Elioff ever accommodated or overlooked any work permit inconsistency, so as to permit an inference that she treated Ms. Zarco dispar- ately.” Clearly, the Respondent had a past practice of reviewing work permits when they were due to expire. It was in the normal course of this practice that Elioff dis- covered the inconsistency with regard to Zarco.24 Our dissenting colleague argues that the Respondent was not required to discharge Zarco. Again, the conten- tion misses the mark. The issue, as noted above, is not what the Respondent was required to do. It is whether the Respondent would have taken the same action even if the employee had not engaged in protected activity.25 As to that issue, the Respondent was reasonably concerned about the immigration status of Zarco. Zarco had lied on her application form and failed to correct the error through the appropriate authorities. Our colleague also argues that the Respondent has shown no prior discharge for this activity viz lying on immigration documents and failing to correct this. But neither has the General Counsel shown that such actions by others has been tolerated. Further, it is not the law that an employer can prevail only by showing prior iden- tical misconduct and discipline. Finally, the fact that the Respondent indicated that Zarco had resigned does not establish a discriminatory motive for the discharge. It is not unusual for an em- ployer to record that designation, even in a discharge situation.26 Accordingly, we shall dismiss these allegations. 23 Framan Mechanical, Inc., 343 NLRB 408, 417 (2004) (quoting Ryder Distribution Resources, 311 NLRB 814, 816 (1993)). 24 The record contains no evidence as to whether a similar situation had ever arisen at the Respondent’s facility in the past. However, it is clear that Elioff had only recently begun reviewing the employees’ work authorization cards, a job that had previously been performed by Sara Dominguez. Dominguez testified that during her yearly reviews of Zarco’s cards she failed to notice that the cards named Guatemala as Zarco’s country of origin. 25 Manno Electric, supra. 26 It does not follow that little weight should be given to an em- ployer’s statement of the reason for a discharge. ORDER The National Labor Relations Board orders that the Respondent, Sara Lee d/b/a International Baking Com- pany and Earthgrains, Vernon, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees about their or other em- ployees’ union and other concerted, protected activities. (b) Creating the impression of surveillance of employ- ees’ union activities. (c) Impliedly threatening employees with reprisals if they continue to engage in union or other protected ac- tivities. (d) Attributing the reason for possible outsourcing of work to employees’ union or other concerted protected activities. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following the affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days after service by the Region, post at its plant in Vernon, California, copies of the attached notice marked “Appendix.”27 Copies of the notice, in both English and Spanish, on forms provided by the Re- gional Director for Region 21, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 2003. (b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 27 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” INTERNATIONAL BAKING CO. & EARTHGRAINS 1139 MEMBER LIEBMAN, concurring in part and dissenting in part. I would find one violation of Section 8(a)(1) in addi- tion to those found by the majority.1 The record estab- lishes that the Respondent unlawfully threatened to fol- low a more rigid disciplinary procedure if employees acquired union representation. Further, given the totality of this record, I would find that the Respondent has not overcome the General Counsel’s initial showing that the Respondent precipitously fired Zarco because of her un- ion activity by establishing that it would have taken that action even in the absence of her union activity. Zarco’s discharge therefore violated Section 8(a)(3). I. PREDICTION AND THREAT OF A STRICTER DISCIPLINARY PROCEDURE On October 16, 2003, Teamsters Local 63 won an election to represent the Respondent’s drivers. During the month preceding the election, the Respondent cam- paigned vigorously against the Union and, as the major- ity agrees, violated Section 8(a)(1) on multiple occa- sions.2 The Respondent’s human resources director, Irma Elioff, was one of the management speakers at 1 I agree with the majority that the violations found by the judge per- taining to Supervisor Jesse Medina were not sufficiently alleged, but only on the grounds that the General Counsel neither amended the complaint to include Medina’s misconduct nor argued these violations at the hearing or in his brief to the judge, pursuant to Sec. 3(d); nor did the judge amend the complaint sua sponte at the hearing pursuant to Sec. 10(b). See Rebel Coal, 279 NLRB 141, 147 (1986); GTE Auto- matic Electric, 196 NLRB 902 (1972) (Sec. 10(b) authorizes judge to amend complaint when General Counsel consents “or where evidence has been received into the record without objection”). I note further that most of the Medina violations would have been cumulative of other violations. I do not reach the complaint allegation that Supervisor Dominguez threatened Guadalupe Arteaga that the Union would affect him ad- versely because I find it cumulative of the unsupported prediction by Human Resources Director Elioff, discussed below, that a stricter dis- ciplinary system would be imposed if the Union won the election, which I find was unlawful. Similarly, I do not reach the complaint allegation that Supervisor Arteaga’s exhortation to employee Martin Sanchez not to “do wrong by us” in the election was unlawfully coercive, because it was cumulative of the Respondent’s other unlawful threats of reprisal. Finally, I do not agree that the question the Respondent put to em- ployee Felipe Serrano confirming his final-warning status while cross- examining him at an unemployment-insurance hearing had no reason- able tendency to be coercive. I agree, however, that in the setting of an administrative hearing the Respondent had the right to litigate its case and to elicit confirmation of an indisputable fact that had an arguable bearing on Serrano’s credibility. For this reason, the question was not unlawful. 2 I agree with the majority that the Respondent unlawfully interro- gated employees, created an impression of surveillance, threatened to outsource work if the Union won the election, and threatened employ- ees with reprisal for union activity. Except for the violations of Sec. 8(a)(1) and (3) discussed herein, I agree with the dismissal of the other complaint allegations. meetings with employees on the subject of the election. Among other statements, Elioff told employees that if the unit was covered by a union contract and a driver arrived 5 minutes late for work, “unfortunately if there is a disci- plinary procedure in that union contract we would not have the luxury of deviating from it because we might end up with union grievances as a result of it.” The ma- jority finds this to be no more than an accurate and law- ful observation that under a union contract the Respon- dent would no longer be free to “deal directly” with em- ployees. However, Elioff’s comment went far beyond indicat- ing that the Respondent would be legally required to deal with the Union. Elioff clearly indicated that the discipli- nary procedure in any union contract would preclude flexibility even to the point of requiring a driver who was “5 minutes late” to be disciplined, while under the Re- spondent’s current policy the tardiness would be over- looked. Elioff stated no basis whatsoever for predicting the terms of a contract that did not exist, and her state- ment was therefore not a lawful prediction of the conse- quences of unionization. See Systems West LLC, 342 NLRB 851, 852 (2004) (employer stated no basis for its prediction that employees would not qualify as journey- men or receive a journeyman’s pay under union con- tract).3 The judge was also correct that Elioff’s statement was both an implicit promise that the Respondent would continue its current, purportedly more lenient policy, if the Union lost the election and an implicit threat that it would impose discipline more strictly if the Union won. For all of these reasons, Elioff’s statement violated Sec- tion 8(a)(1). II. THE ZARCO DISCHARGE I also dissent from the majority’s finding that the dis- charge of Maria Zarco was lawful. The General Counsel showed that the Respondent acted with antiunion animus, and the Respondent failed to show that Zarco would have been discharged even if she had not engaged in union activity. Maria Zarco was a 10-year employee with a good re- cord. At the time of her discharge she worked in the Respondent’s shipping and receiving department. Zarco was an observer for Bakery Workers Local 37 in a 2002 Board election in which that Union unsuccessfully at- 3 See also NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). Both the judge and I reject the claim that Elioff was “merely observing” that the Union could insist on the letter of its contract and therefore Elioff’s statement was protected by Sec. 8(c). Under the majority’s interpretation of Sec. 8(c), an employer lawfully may “observe” that any manner of strict discipline might befall employees as a result of the union’s interpretation of its contract, no matter how unfounded or coer- cive the employer’s speculation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1140 tempted to organize that unit. Zarco also testified in support of the Union’s election objections at a hearing in August 2003. On June 25, 2004, the Board upheld some of the Union’s objections and found that the Respondent violated Section 8(a)(1) and (3) in connection with the election.4 In October 2003, Teamsters Local 63 won an election to represent the facility’s drivers. The Teamsters’ victory and the Board’s then-pending order for a new election in the shipping and receiving unit created the possibility that two important units at the Respondent’s facility would soon be unionized.5 Under the Immigration Reform and Control Act of 1986 (IRCA), all of the Respondent’s foreign-born em- ployees were required to submit documentation, includ- ing employment authorization cards, on an annual basis demonstrating their eligibility for employment in the United States. The Respondent conducted a monthly review of those documents in order to identify authoriza- tion cards which were due to expire within 90 days. In January 2004, while assisting in this monthly review task, Elioff noticed that Zarco’s workcard would expire within that timeframe and that it specified Guatemala as Zarco’s country of origin. Based on her previous con- tacts with Zarco and other employees, Elioff believed that Zarco’s true country of origin was Mexico. Elioff called Zarco to her office on January 14, and pointed out the apparent discrepancy on her workcard. The judge credited Elioff’s testimony that Zarco then admitted that from the time she had first applied for em- ployment with the Respondent she had “fixed” her pa- pers “like a lot of other people have” by specifying Gua- temala as her country of origin.6 Elioff immediately placed Zarco on suspension without pay and gave her “a week” to report the “error” on her workcard to the Bu- reau of Immigration and Customs Enforcement (ICE)7 4 International Baking Co. & Earthgrains, 342 NLRB 136 (2004), affd. 2006 WL 1737185 (9th Cir. 2006) (unpublished). 5 In January 2004, within a space of 19 days, the Respondent dis- charged two prounion employees, including Zarco, and suspended a third for a week. However, there were no exceptions to the judge’s findings that the other termination (of Guadalupe Arteaga) was lawful. I agree with the majority that the suspension and warning of Felipe Serrano was not shown to be unlawful. The adverse actions against the other two employees nevertheless constitute relevant circumstantial evidence in determining whether the Respondent acted with unlawful animus against Zarco, even if they were not proved to be independently unlawful. 6 All of Zarco’s previous workcards did in fact specify Guatemala as her country of origin. Under Federal law, certain individuals from Guatemala were eligible for more favorable immigration treatment than Mexican citizens. 7 Before 2002, the enforcement component of the Immigration and Naturalization Service (INS) for the interior of the United States. and obtain a written ICE confirmation that the error had been corrected. Zarco contacted her immigration attorney, Alberto Salas, who wrote a letter to Elioff stating that Zarco had obviously satisfied the INS’s requirements in order to obtain her workcard but that the Respondent had the right to verify the workcard’s validity if it wished to do so. When Zarco delivered the letter to Elioff on January 19, Elioff again told her that she had to obtain a letter from ICE confirming the required correction of her workcard. With Zarco present, Elioff then called Salas and told him what she had told Zarco. Salas pointed out that Elioff could contact the INS if she doubted the ve- racity of Zarco’s work authorization, and also suggested that a letter from the Respondent to ICE would cover the company’s legal obligations. However, Elioff told Salas that Zarco would be fired for falsifying her documents because the company “could get into trouble.” Elioff called Zarco 3 days later and discharged her, telling her that the “company attorneys” had decided she should be fired. However, Zarco’s written termination notice, sent to her the same day, specified that the reason for termina- tion was “Voluntary Resignation.” As the majority agrees, the judge should have analyzed the discharge under Section 8(a)(3) as well as under Sec- tion 8(a)(1) and (4), since that violation was also alleged in the complaint. Unlike the majority, however, I would find that the discharge violated Section 8(a)(3).8 The General Counsel clearly met his initial Wright Line burden of showing that the Respondent acted with antiunion animus.9 The Respondent not only has a his- tory of committing unfair labor practices, see Interna- tional Baking Co., supra,10 but committed the additional violations found in this case just a few months before Zarco’s discharge. Zarco was also closely associated with the Bakery Workers, having served as an observer for the Union in the 2002 election and as a witness for the Union at the 2003 Board hearing. The majority as- sumes arguendo that the General Counsel met his initial 8 I agree with the majority that the General Counsel did not establish a violation of Sec. 8(a)(4), because the judge found no evidence that the Respondent acted with animus against witnesses who had testified in the August 2003 Board proceeding. I also agree that Zarco’s discharge was not shown to be an independent violation of Sec. 8(a)(1) in connec- tion with a conversation she had with a supervisor the day before her suspension over whether she intended to write a letter in support of Guadalupe Arteaga, a union supporter who was discharged on January 12, 2004. As the judge found, Elioff was not shown to have known about that conversation before she fired Zarco. 9 251 NLRB 1083, 1089–1090 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 10 In fact, the judge in International Baking Co. & Earthgrains, su- pra, specifically found that Elioff acted with unlawful motive in select- ing a union supporter for layoff in that case. 342 NLRB at 149. INTERNATIONAL BAKING CO. & EARTHGRAINS 1141 Wright Line burden, but bases its conclusion that the dis- charge was lawful solely on its finding that the Respon- dent showed that it would have discharged Zarco even if she had not engaged in protected activity. The majority, like the judge, essentially accepts the Respondent’s con- tention that Zarco was terminated for falsifying her im- migration documentation. Because the judge’s finding that Zarco admitted she had misstated her country of origin on her workcard was based on the crediting of Elioff’s testimony over Zarco’s, I accept that finding as fact.11 Given the record as a whole, however, I do not agree that the Respondent has borne its burden of showing that Zarco would have been discharged so quickly for this infraction if she had not been a union activist. It is well established that undocu- mented workers are employees protected by the Act, even though they are not entitled to the remedy of back- pay if they are discriminatorily fired.12 It is also well settled that where the General Counsel has established that the Respondent acted with unlawful animus, the Re- spondent cannot simply cite a lawful rationale that might have been available at the time but must show that it was in fact motivated by that rationale.13 In this sense, com- pliance with IRCA’s statutory requirements is no differ- ent than any other lawful rationale for a discharge.14 The Respondent was required to show that it would have abruptly fired Zarco based on her perceived non- compliance with IRCA even in the absence of her union activity. This it has failed to do. First, the Respondent’s written mischaracterization of Zarco as having voluntarily “resigned” when it is clear that she was fired undermines its contention that it acted out of fear of exposure to legal sanctions if Zarco were not discharged quickly. There was no reason for the Re- spondent to conceal either the nature of Zarco’s separa- 11 I note in passing, however, that the judge apparently did not dis- credit Zarco because of her demeanor but because of perceived oral and written “inconsistencies” in Zarco’s testimony and her prehearing de- scription of her first conversation with Elioff. These inconsistencies may not have justified the weight the judge chose to give them. Zarco’s testimony that she did not understand what “error” on her workcard Elioff was referring to, even though Elioff pointed to the word “Guatemala,” would have been plausible if Zarco was in fact from Guatemala and if Elioff (as Zarco testified) did not refer to Mex- ico in that conversation. And with respect to Zarco’s failure to refer to certain statements by Elioff in the letter she wrote shortly afterward on behalf of Arteaga, the judge appears to have discredited Zarco because she did not write with the precision of an attorney. 12 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 150 fn. 4 (2002); Concrete Form Walls, 346 NLRB No. 80, slip op. at 3–4 (2006). 13 E.g., Allen v. NLRB, 561 F.2d 976, 982 (D.C. Cir. 1977); Stemilt Growers, 336 NLRB 987, 990 (2001); Wright Line, 251 NLRB at 1089. 14 Concrete Form Walls, supra, 346 NLRB No. 80, slip op. at 3–6, citing Sure-Tan v. NLRB, 467 NLRB 883, 896 fn. 6 (1984). tion or the true reason for it if it was in fact motivated by that fear.15 Where a stated reason for an action is found to be pretextual, an inference is justified that the real motive was unlawful.16 Second, while infractions of IRCA cannot be con- doned, it is implausible that in normal circumstances the Respondent would have discharged a 10-year employee with a good record as quickly as Zarco was terminated after the discovery of the violation. Elioff suspended Zarco without pay immediately upon confronting her with the purported discrepancy on her workcard, and in doing so clearly placed the Respondent in sufficient compliance with IRCA to avoid liability. Elioff could therefore have given Zarco more than a week either to obtain corrective documentation from ICE or to take other corrective steps before finally discharging her.17 Instead Elioff informed Zarco’s attorney only 5 days after her suspension that Zarco would be discharged, ignoring his suggestion that the Respondent satisfy its legal obligations by merely reporting the situation to ICE and thereby documenting its intention to comply with IRCA. Elioff apparently did not even discuss that sug- gestion with the Respondent’s own attorneys. Accord- ingly, although the Respondent was concededly required to take some action upon discovering that Zarco was not authorized to work, it had no IRCA obligation to dis- charge her so quickly.18 Third, the Respondent has conspicuously failed to show how it would deal with, or had dealt with, similar 15 In the majority’s view, “it is not unusual” for employers to record a discharge as a “resignation.” To the extent this is accurate, it suggests that the Board should not give much weight to an employer’s contem- poraneous statement of the reason for a termination. 16 E.g., Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966); Smucker Co., 341 NLRB 35, 40 (2004), enfd. 130 Fed.Appx. 596 (3d Cir. 2005); Loudon Steel, 340 NLRB 307, 312 (2003). 17 One need not be an expert in Federal bureaucracy to question the assumption that Zarco could have obtained a notice of “correction” or any other written communication from the ICE within the space of a week. For example, employers and immigration attorneys alike have opposed a recent proposal by the Department of Homeland Security to require employers who receive “no-match” letters from the Social Security Administration (indicating a discrepancy between an em- ployee’s stated name and social security number) to get the discrepancy resolved within 60 days, on the partial ground that much more time would be needed. “Business, Unions Agree: DHS Should Abandon proposed Rule on SSA No-Match Letters,” Daily Labor Report (Aug. 22, 2006). To recognize this reality is not to “substitute” any “business judgment” for the Respondent’s or to dictate what the Respondent was “required to do.” This reality is material in determining what actions the Respondent would have taken regarding an immigration discrep- ancy in the absence of Zarco’s protected activity. 18 This directly undercuts the Respondent’s asserted motive for act- ing against Zarco with such haste. And as the majority agrees, the “issue” here is the Respondent’s real motive—i.e., whether Zarco would have been treated in the same manner even if she had not been a union activist. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1142 cases in the past.19 Again, while IRCA required the Re- spondent to take corrective action, IRCA did not dictate that Zarco be discharged only a few days after she was placed on unpaid suspension. The Respondent confirms in its brief that it employed a “significant number” of foreign nationals, and its management was therefore fa- miliar with ICE’s enforcement procedures. There is no dispute that, as the majority emphasizes, the Respondent had a practice of reviewing work permits that were due to expire. But the Respondent has not even contended that Zarco’s treatment after Elioff reviewed her permit conformed to a preexisting policy or practice, let alone presented evidence of what that practice was. The majority is correct that the mere possibility that Zarco’s discharge was not “compelled” by IRCA “does not convert the discharge here to a violation of the Act.” By the same token, however, neither does the mere pos- sibility that a discharge might eventually be necessary under IRCA if Zarco took no corrective action to convert the precipitous discharge to a lawful action if it was mo- tivated by antiunion animus. The fact that the Board must, like any other Federal agency, respect IRCA’s re- quirements does not authorize an employer to use com- pliance with IRCA as a pretext for discrimination against employees who engage in Section 7 activity.20 Because the Respondent failed to show that Zarco would have been treated in the same manner if she had not been a union supporter, her discharge violated Section 8(a)(3). APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection 19 Only after a respondent employer shows that it was enforcing a fa- cially valid personnel procedure already in place, or at least was acting consistently with past practice, is the General Counsel required to show disparate enforcement. See, e.g., Golub Corp., 338 NLRB 515, 516 (2002); Baptist Medical Center, 338 NLRB 346, 376 (2002). 20 See Concrete Form Walls, supra, slip op. at 5 fn. 19 (even where employer reasonably believed discriminatees were unauthorized aliens, employer could not use their undocumented status as a pretext for dis- charge for their union activity). Choose not to engage in any of these protected activities. WE WILL NOT interrogate employees about their or other employees’ union and other protected concerted activities. WE WILL NOT create the impression of surveillance of employees’ union activities. WE WILL NOT impliedly threaten employees with repri- sals if they continue to engage in union or other protected activities. WE WILL NOT attribute the possible outsourcing of work to employees’ union or other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. SARA LEE D/B/A INTERNATIONAL BAKING COMPANY AND EARTHGRAINS Jean Libby and Irma Hernandez, Esqs., for the General Coun- sel. Timothy A. Davis and Kimberley F. Seten, Esqs. (Constangy, Brooks & Smith, LLC), of Kansas City, Missouri, for the Respondent. Amanda Lively (Wohlner, Kaplon, Phillips, Young & Cutler), of Sherman Oaks, California, for the Charging Party, Team- sters Local 63. Guadalupe Palma, Esq. (Weinberg, Roger & Rosenfeld), of Alameda, California, for the Charging Party, Bakery Union Local 37. Ruben Luna, Organizer, of Covina, California, for the Charging Party, Teamsters Local 63. DECISION I. STATEMENT OF THE CASE LANA H. PARKE, Administrative Law Judge. This matter was tried in Los Angeles, California, on April 4 through 7, and May 23, 2005,1 upon second order consolidating cases, amended consolidated complaint, and amended notice of hearing (the complaint) issued December 15, 2004, by the Acting Regional Director of Region 21 of the National Labor Relations Board (the Board) based on charges filed by Wholesale and Retail Food Distribution, Teamsters Local 63 (Teamsters Local 63),2 on a charge filed by Bakery, Confectionery and Tobacco Workers and Grain Millers International Union, Bakery Union Local 37, AFL–CIO, CLC (Bakery Union Local 37 ), and on a charge filed by Martin Sanchez (Sanchez), an individual. The complaint, as amended, alleges Sara Lee Bakery Group d/b/a International Baking Company and Earthgrains (Respondent) violated Section 8(a)(1), (3), and (4) of the National Labor 1 All dates herein are 2004, unless otherwise specified. The hearing was continued from April 7 to May 23, 2005, to permit counsel for the General Counsel to procure the testimony of Alberto Salas. 2 The full name of Teamsters Local 63 is set forth in the case cap- tion. INTERNATIONAL BAKING CO. & EARTHGRAINS 1143 Relations Act (the Act).3 Respondent essentially denied all allegations of unlawful conduct. II. ISSUES 1. Did Respondent engage in the following independent vio- lations of Section 8(a)(1) of the Act: threaten employees with termination if they selected Teamsters Local 63 as their collec- tive-bargaining representative; threaten employees with job loss if they voted for Teamsters Local 63 and in the event of a strike; threaten employees with unspecified reprisals if they engaged in protected activities; threaten to report employees to the Bureau of Citizenship and Immigration Service (formerly known as Immigration and Naturalization Service) in retaliation for engaging in protected activity; interrogate employees about their union activities; create the impression of surveillance of employees’ union activities; threaten an employee with un- specified reprisals for having testified in support of another employee’s unemployment insurance claim; and threaten to terminate an employee if he contacted a union representative? 2. Did Respondent violate Section 8(a)(3) and (1) of the Act by suspending and terminating Jose Guadalupe Arteaga on January 12? 3. Did Respondent violate Section 8(a)(1), (3), and (4) of the Act by suspending and terminating Maria Zarco on January 13 and 22, respectively? 4. Did Respondent violate Section 8(a)(3) and (1) of the Act by suspending and issuing a written warning to Felipe Serrano on January 29? III. JURISDICTION Respondent, a Delaware corporation, with a facility located in Vernon, California (the Vernon facility) has at all relevant times been engaged in the manufacture, sale, and distribution of bakery products to commercial customers. During the 12- month period ending September 22, 2003, a representative period, Respondent annually sold and shipped goods valued in excess of $50,000 directly from its Vernon facility to customers located outside the State of California. Respondent admits, and I find, it has at all relevant times been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and Teamsters Local 63 and Bakery Union Local 37 have been a labor organizations within the meaning of Section 2(5) of the Act.4 IV. FINDINGS OF FACT A. Alleged Independent Violations of Section 8(a)(1) of the Act Respondent manufactures bakery products at its Vernon fa- cility, where at all times relevant hereto, it employed 18–20 shipping and receiving employees and 11 delivery drivers. In 2002, Bakery Local 37 conducted a representation campaign among Respondent’s shipping and receiving employees, culmi- nating in a Board-conducted representation election, which 3 At the hearing, counsel for the General Counsel amended the com- plaint to include the January 29, 2004 suspension of Felipe Serrano as a violation of Sec. 8(a)(3) and (1) of the Act. Respondent denied the amended allegation. 4 Unless otherwise explained, findings of fact are based on party admissions, stipulations, and uncontroverted testimony. Bakery Union Local 37 lost.5 In the spring of 2003, Teamsters Local 63 commenced an organizational campaign among Re- spondent’s drivers at the Vernon facility. Region 21 conducted a representation election among Respondent’s drivers on Octo- ber 16, 2003, which Teamsters Local 63 won by a vote of 7 to 7. Jose Guadalupe Arteaga (Guadalupe Arteaga or Guadalupe) and Felipe Serrano (Serrano) actively supported Teamsters Local 63 from nearly the inception of its campaign. During the course of the campaign, the following exchanges occurred between supervisors and employees of Respondent: 1. Rigoberto Arteaga (aka Arturo Arteaga and herein Arturo Arteaga or Arturo), shipping and receiving supervisor According to Guadalupe Arteaga,6 in September 2003, Arturo Arteaga asked Guadalupe if he was aware someone wanted to bring in a union and asked if Guadalupe had signed a union card because he knew seven drivers had. When Guada- lupe denied signing, Arturo said he had been told one of the cards bore the last name of “Arteaga.” Guadalupe said perhaps a temporary driver had used his name. Two to 3 days later, Arturo told Guadalupe to tell him if he knew something about the Union. Guadalupe denied any knowledge. Arturo said that maybe Guadalupe was even the president. Guadalupe answered that if Arturo continued to say that he would talk to his supervisors upstairs. Arturo laughed. Thereafter, Arturo often referred to Guadalupe in front of other employees as “the president of the union.” On other occasions, Arturo instructed Guadalupe to tell him which employees had “voted” for the Union, saying that even if employees had not signed, employees would have to leave. Arturo Arteaga denied the above accusations. I credit Gua- dalupe Arteaga’s account. His testimony was clear, consistent, and forthright.7 Sanchez testified that on several occasions prior to the elec- tion, Arturo Arteaga asked whom he was going to vote for and told him to be careful about his choice. On the day before the election, Arturo told Sanchez he knew whom he was going to vote for. On the day of the election, Arturo told Sanchez not to forget whom he was voting for. Arturo denied having such conversations with Sanchez. Sanchez’ precomplaint affidavit to the Board does not mention any interrogation but states only that Arturo Arteaga told him to “be careful who you vote for.” Respondent terminated Sanchez in November 2003. Subse- quently, Sanchez filed an unfair labor practice charge with the Board, which was thereafter dismissed. The potential bias cre- ated by this history, coupled with the discrepancies between Sanchez’ affidavit and his assertions at the hearing, prevent me 5 The Board dismissed in part and sustained in part objections to that election. International Baking Co. & Earthgrains, 342 NLRB 136 (2004). 6 Arturo Arteaga is not related to Guadalupe Arteaga. 7 I consider few witnesses in this matter to have been fully candid or consistently reliable in all testimony. However, I need not refuse to accept everything a witness says because I do not believe all of it; “nothing is more common in all kinds of judicial decisions than to believe some and not all [that a witness says].” NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951), cited with approval in Daikichi Sushi, 335 NLRB 622 (2001). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1144 from crediting his testimony. 2. Sara Dominguez (Dominguez), Respondent’s human resources supervisor According to Guadalupe Arteaga, after Arturo Arteaga first spoke to him, Dominguez called him to her office and asked if he knew something about the union. When Guadalupe Arteaga denied knowledge, Dominguez told him he was one of the most senior drivers and made decent money, that the Union would harm him, and that it would be better for him not to sign a un- ion card. When Guadalupe Arteaga again denied knowledge, Dominguez told him to think about it. Dominguez denied any such conversation but testified, somewhat equivocally, “No, I didn’t ask because I already knew. They just—you couldn’t talk to them. There was no change in their minds. I mean there was no reason to talk to them.” I find Guadalupe Arteaga’s testimony in this regard persuasive, and I credit his account. 3. Manuel Arteaga, shipping and receiving supervisor and brother of Arturo Arteaga According to Guadalupe Arteaga, sometime before the elec- tion, Manuel Arteaga asked Guadalupe and Sanchez if they knew which employees had signed union cards. They denied knowledge. Manuel Arteaga said that even if the Union won an election, the drivers would leave, as he would hire the Schnei- der company to do their work.8 Two to 3 days later, Manuel Arteaga told Guadalupe that he knew who the leader of the Union was. Guadalupe said that if they knew, they should stop calling him the president. Manuel Arteaga said he also knew who had signed cards. At about the same time, Manual Arteaga, referring to the up- coming election, told Sanchez, “Don’t do wrong by us.” Following the election, according to Guadalupe Arteaga, Manuel Arteaga told him he was certain he had voted for the Union. Guadalupe admitted doing so. Manuel Arteaga denied talking to any employee about the union at any time. I did not find his denials convincing, and I do not credit them. 4. Jesse Medina (Medina), logistics manager As Respondent correctly points out, there is no complaint al- legation that Jesse Medina’s conduct violated the Act. Not- withstanding the General Counsel’s presumably inadvertent omission, counsel for the General Counsel presented detailed evidence of Medina’s allegedly unlawful statements, and Re- spondent called Medina to rebut the testimony. Therefore, I find the parties fully litigated this issue. “It is well settled that the Board may find and remedy a violation even in the ab- sence of a specified allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated [citations omitted].” Atlantic Veal & Lamb, Inc., 342 NLRB 418 fn. 5 (2004). The issues regarding Medina’s statements are inextricably connected to the timely alleged allegations of the complaint, involve the identical underlying legal theory and factual situation, and are 8 Respondent did, in fact, subcontract its product delivery work sometime after the election. The General Counsel does not allege that the subcontracting violated the Act. subject to the same employer-raised defenses. Redd-I, Inc., 290 NLRB 1115, 1118 (1988); Precision Concrete, 337 NLRB 211 (2001). Accordingly, I have considered whether Medina’s statements violated Section 8(a)(1) of the Act. According to Guadalupe Arteaga, Medina asked him if he knew anything about the Union because he had a letter saying drivers had signed cards authorizing the Union to represent them. Guadalupe denied knowledge. Medina said the Union was not a good thing, and Guadalupe should tell the honest truth if he was involved. Guadalupe again denied involvement. Medina told Guadalupe that he knew he was comfortable in his job and that he should think about the Union, as it was not a good thing. Guadalupe Arteaga also testified that on another occasion as they rode together in a delivery truck, Medina asked him to report what he knew about the Union and whether he was com- fortable with his job. Guadalupe complained that Arturo Arteaga pressured him, yelled at him, gave him the worst jobs, called him names (i.e. “La Gorda,” meaning the fat lady), and grabbed his private parts. Medina laughed. Guadalupe said it was not funny and reminded Medina that he had promised to fix those problems when Guadalupe had formerly complained of them. Medina said he would try to give Guadalupe a raise. Driver Felipe Serrano (Serrano) testified that in early Sep- tember, Medina asked him if he knew who organized the driv- ers. Serrano denied knowledge, but thereafter Medina contin- ued to inquire and asked Serrano to find out who wanted the Union and who had signed authorization cards, saying he would keep the information confidential. Although Medina, who no longer worked for Respondent at the time of the hearing, admitted that the topic of the Union came up in conversations with employees, he denied telling any employee that he knew who had signed authorization cards. I find Guadalupe Arteaga’s and Serrano’s testimony in this re- gard persuasive, and I credit their accounts. In September 2003, Serrano invited two drivers, Alfredo Garcia and Arturo Maravilla (Maravilla), to attend a union meeting. When the two declined, Serrano told them it was unfair for them to let union supporters do the work to obtain benefits they would later profit from. According to Serrano, both he and Maravilla used strong language but parted without further incident. A few days later, Medina told Serrano never to invite Garcia and Maravilla to a union meeting, as he could get into trouble if he did. 5. Rick Medina, safety director9 In August 2004, Respondent received a customer complaint that one of Respondent’s delivery drivers had knocked down a shed at the customer’s facility. Upon reviewing the delivery schedule, Medina and Rick Medina identified the driver as Serrano. In the course of Respondent’s investigation, while enroute to view the subject trailer, Serrano told Rick Medina he wanted to call his union representative to protest the Com- pany’s reaching a conclusion without investigation. Serrano testified that Rick Medina told him if he called the Union, it could be grounds for termination. Fortuitously, Luna called 9 Rick Medina is not related to Medina. INTERNATIONAL BAKING CO. & EARTHGRAINS 1145 Serrano on his cellular telephone at that moment. Serrano told Luna about the situation and asked if he wanted to speak to Rick Medina. After Rick Medina accepted the telephone, Serrano heard him say it was a bad connection and recite his office number. Serrano and Rick Medina went to the latter’s office where Rick Medina accepted a phone call from Luna. I do not credit Serrano’s testimony that Rick Medina told him calling the Union could be grounds for termination. It is im- probable that after having made such a statement, Rick Medina would immediately engage in an apparently amicable conversa- tion with Serrano’s union representative. Moreover, there is no evidence Serrano told Luna of the threat, which one would expect had such a threat occurred. Following further investiga- tion of the incident, Respondent issued Serrano a final warning, which the General Counsel did not allege violated the Act. 6. Irma Elioff Following his discharge, Guadalupe Arteaga filed for unem- ployment benefits with the State of California, Employment Development Department (EDD), which resulted in a hearing on April 5, before Administrative Law Judge Georgina Torres Rizk of the California Unemployment Insurance Appeals Board (the unemployment hearing). Serrano, inter alia, testified at the unemployment hearing on behalf of Guadalupe. In the course of cross-examination, Irma Elioff (Elioff), Respondent’s human resources director, asked Serrano if he was, at the time of his testimony, in “final warning” status. According to Elioff, she asked the question essentially to show potential bias on Serrano’s part. 7. Respondent’s preelection meetings with drivers Prior to the October election, Respondent held three meet- ings with its drivers regarding the upcoming union vote. Elioff spoke at the meetings. Also present for Respondent were Arturo Arteaga, Dominguez, and Medina. According to employee witnesses, at the first meeting, Elioff told employees there was nothing good about the Union, that it was losing membership and was always on strike, and that em- ployees would lose if they voted for it, that unions go on strike, and if other companies went on strike, Respondent’s drivers would have to join them and could be more easily fired. She told employees that Respondent could make its rules stricter, that if employees were 5 minutes late they could receive a warning, and on the third tardy it would be “goodbye.” (In this regard, Guadalupe Arteaga understood Elioff to be speaking of what would occur if employees were in the Union.) Elioff said medical coverage under a union was no good; a union charged dues and could raise them when employees least expected it. She told employees it was better they not vote, as they would lose seniority and start from zero in bargaining. She said if employees went on strike the Company could subcontract the delivery work, naming the Schneider company as a likely pros- pect. Employee witnesses recalled that at the second meeting, Elioff repeated much of the same information given in the first meeting. She also told employees Respondent was legally obligated only to pay them minimum wage and could subcon- tract the delivery work to Schneider. Elioff read aloud from news clippings of strikes in Tennessee where the companies replaced strikers, and workers got fired. Dominguez described her family’s privations and loss of income when her husband’s union had gone on strike. Elioff said that the Union would charge employees $500 a year, which could otherwise be used to buy food for the family. Respondent showed a video in which a driver told of his father’s experiences with a union and advised employees to vote no. At the third meeting, employee witnesses said, Respondent showed a video and representatives asked employees not to vote for the Union. Elioff said striking employees would not receive unemployment and could be replaced. All employee witnesses denied that Elioff had read from anything other than news clippings at the meetings, but I cannot accept their testi- mony in that regard. In her posthearing brief, counsel for the General Counsel concedes that Elioff “read from prepared scripts.” I note that in meetings Respondent conducted with employees during the 2002 union election campaign Elioff also read, although not verbatim, from scripts. International Baking Co. & Earthgrains, supra. The inability of employees who testified about the meetings to recall that Elioff read from scripts impacts negatively on their reliability as witnesses. Respondent introduced three scripts into evidence. Elioff, Medina, and Dominguez denied that in responses to questions that Elioff said drivers could lose their jobs or be fired. Dominguez testified that Elioff answered a question about driv- ers’ wages up north by saying there were no guarantees, since, with a union, wages and benefits could go up or down, and that during a strike employees could lose benefits because they were not working. After taking into consideration the sketchiness of the various employee accounts and after assessing all testimony for reliability and consistency, I find that Respon- dent’s witnesses, in this regard, testified clearly, unequivocally, and sincerely. I find that Elioff, for the most part, read to em- ployees from printed scripts, and I credit Respondent witnesses’ testimonies of her nonscripted statements. In pertinent part, Elioff’s scripted remarks read as follows: The Teamsters have more strikes each year than any other union in the country. I repeat, the Teamsters have more strikes than any other union in the country. Strikes with the Teamsters can happen two ways. If we don’t agree with the Teamsters during negotiations of wages or other things, they can take you all out on strike. This is called a primary strike. Again, given our current financial situation, if the Teamsters win this election, you could find yourself in a position where if we refuse the Teamsters re- quests during bargaining they could call you out on strike. . . . . Always remember, economic strikers don’t get paid, don’t get benefits, don’t get unemployment and can be permanently replaced by other employees or contract driv- ers. . . . . If the costs of delivering the products are more than the cost of using an outside transportation company, measures like they took in London [Kentucky] have to be considered. I am not saying that we have a plan in place in our bakery to outsource the driver jobs or that we would DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1146 outsource the jobs if the Teamsters win the election. I re- peat, I am not saying that we have a plan in place in our bakery to outsource the driver jobs or that we would out- source the jobs if the Teamsters win the election. All I am saying is that if production or delivery costs are not in line with earnings all options have to be considered. In her posthearing brief, counsel for the General Counsel as- serts that Elioff “admitted to telling [employees at the meet- ings] that under a union contract, there would be no flexibility in administering a disciplinary procedure because Respondent would end up with grievances.” Presumably, counsel referred to the following testimony: Q. In [any of these three meetings] did you ever tell employees . . . that it would be easier to fire them if they voted in a union? A. No. Q. Did you talk about what would happen to them if they might be five minutes late getting to work? A. Yes . . . What I explained to them was unfortu- nately under a union contract if there is a disciplinary pro- cedure in that union contract we would not have the luxury of deviating from it because we might end up with union grievances as a result of it. B. Suspension and Termination of Guadalupe Arteaga By Guadalupe Arteaga’s account, in the 2 years before the union organizational campaign began, Arturo Arteaga, whom he had known for 30 years and whom he considered a friend, engaged in “horseplay” at work by grabbing his buttocks. Guadalupe admitted that although he did not like the horseplay and did not think his supervisor should behave that way, he sometimes jokingly “returned” the conduct after Arturo insti- gated it or mimicked the conduct because he was angry about it. Guadalupe said he complained about it to Elioff, who said she would take care of it but did not. One or 2 days after Respondent held its second union cam- paign meeting, Guadalupe Arteaga spoke with Oscar Lopez (Lopez) in Medina’s office. Lopez, who said he was there from New Mexico to represent the company, told Guadalupe he was not telling employees to vote yes or no, but he reminded Gua- dalupe of what he had said at the meeting. Guadalupe told Lopez how Arturo Arteaga treated him: pressuring him, yelling at him, grabbing his private parts in front of others, assigning him the worst jobs, calling him the fat lady, stealing pallets from the company, and selling bread to the lunch truck proprie- tors. Lopez said he would report Guadalupe’s complaints to management. On January 12, Guadalupe Arteaga unloaded a trailer with Gemaro Bugarin (Bugarin), Arturo Arteaga’s uncle. When the two finished the unloading, Guadalupe asked Bugarin to move the trailer, as was customary. Arturo intervened and told Gua- dalupe, “No, you’re going to move it.” Guadalupe asked why Arturo’s “f— cousin” did not move it, as he always did. Arturo repeated his order, and Guadalupe agreed, saying he would first visit the restroom. Up to this point, the story is essentially un- disputed. Witnesses disagree, however, as to what transpired after Guadalupe returned from the restroom. According to Guadalupe Arteaga, on his return to the loading area from the restroom, as he passed Arturo Arteaga, Arturo grabbed his testicles very hard from the front, “squeezing like never before.” In considerable pain, Guadalupe wordlessly shoved Arturo away from him into some bread trays, ripping his jacket. Guadalupe’s testimony at his April 5 unemployment hearing differs somewhat from his hearing testimony. Guada- lupe testified in the unemployment forum that on April 5 when he was going toward the office to obtain his paperwork, Arturo Arteaga grabbed him, whereupon Guadalupe “turned around desperately” and in doing so, tore Arturo’s jacket. Guadalupe’s report to Zarco of what occurred also differs from his testi- mony. According to Zarco, Guadalupe telephoned her at home to ask her to write a letter describing the times she had seen him and Arturo playing around at work. Guadalupe told Zarco he needed the letter because of something that happened while he and Arturo were playing around. Guadalupe said he had grabbed Arturo from behind, and when Arturo in return had grabbed his genitals, Guadalupe had pushed him into a stack of trays. Testifying for the General Counsel, Serrano said that he ob- served the confrontation as he was walking toward the exit door; he saw Arturo Arteaga grab Guadalupe Arteaga by the “balls,” and Guadalupe shove him away by pushing his shoul- der, after which Serrano turned away and left. In testimony given at Guadalupe’s April 5 unemployment hearing, Serrano said that Arturo and Guadalupe “basically [stood] facing each other” when Arturo grabbed Guadalupe’s “private parts.” Serrano said he had never before seen Arturo touch any em- ployee, including Guadalupe other than by slapping them on their shoulders or backs. Serrano’s latter testimony is inconsis- tent with his January 12 written description of the event, which states, in pertinent part: I . . . have been witness and saw Arturo Arteaga . . . grab and push Jose Guadalupe Arteaga . . . grabbed him on the bud [sic].10 It is not the first time that I have seen this before. Last time I seen this was on 1-11-2004. According to Arturo Arteaga, after Guadalupe Arteaga an- grily inquired why Arturo Arteaga’s “f— relative” would not move the trailer, he ran toward Arturo, grabbed him by his neck, ripping his jacket, pushed him against the bread racks, and made a motion as if he would hit him.11 Arturo asked what was going on, whether Guadalupe was crazy, and why he had done that to him. Arturo denied grabbing Guadalupe’s private parts or fighting him in any way. Respondent called two witnesses, who described what they had seen of the confrontation. William Quevado, shipping and receiving employee, heard Arturo Arteaga tell Guadalupe Arteaga to move a trailer as the two walked in front of him, but he did not hear Guadalupe’s response, and he saw no physical contact, being turned away from the two. He did not pay enough attention to notice whether their voices were angry, but he heard cloth rip. Bugarin testified he went to the restroom 10 I take “bud” to be a misspelling of “butt.” 11 By gesture during his testimony, Arturo Arteaga demonstrated Guadalupe Arteaga’s grabbing his jacket by its front-neck area. INTERNATIONAL BAKING CO. & EARTHGRAINS 1147 immediately after Arturo Arteaga directed Guadalupe Arteaga to move the trailer and neither saw nor heard any further inter- action between the two. After their confrontation, Arturo Arteaga left the loading area and immediately telephoned his supervisor, Medina. He told Medina that Guadalupe had lunged at him, grabbed him by the throat, and pushed him against a rack of bread. He said his neck hurt, and Medina told him to go to the health clinic and to tell Manuel to tell Guadalupe he was suspended. Arturo then telephoned Elioff. While this was going on, Guadalupe moved the trailer, reported to the office and obtained his delivery pa- pers from Arturo, who was talking on the telephone, and made his delivery. When Guadalupe Arteaga returned to the Vernon facility, Luis Magana and Manuel Arteaga told him he had to go home and return the next day to talk to Elioff. According to Guadalupe, he asked for permission to finish his 8 hours, to which Manuel Arteaga initially agreed but later refused, saying Respondent would say he was not doing his job properly. Gua- dalupe said that maybe he was already not doing his job prop- erly because a driver named Bajaro had punched in and then gone to work another job. According to Guadalupe, Manual Arteaga said that Bajaro was not in the Union. At some point following the Arturo/Guadalupe incident, Arturo Arteaga met with Elioff in her office. He told her that William Fierro Quevado, Nicolas Macias, and Bugarin had been working in the area at the time of the confrontation. He also told Elioff that although he had telephoned the police, he did not file a report because the police cautioned him that Gua- dalupe Arteaga could echo his accusation of assault, and the police would have to arrest him as well. Elioff spoke to Nicolas Macias, who said that he was stand- ing by the bread trays, that he heard something and noticed the trays move. Then he saw Arturo Arteaga, who showed him his torn jacket. Elioff also spoke to William Quevado, who said he was counting bread when he heard angry voices and ripping cloth. When he turned toward the sounds, he saw Guadalupe and Arturo Arteaga standing together before walking away in separate directions.12 At 11:09 a.m. that same day, Elioff informed Respondent’s head office by e-mail that Guadalupe had “physically as- saulted” Arturo, stating inter alia: My recommendation is immediate discharge. We have a custom and practice as well as a policy that an employee is discharged for [cause] whenever this has happened. We do not have a single employee who has ever gotten into a fight and has been given a warning or suspension. They have always consistently been discharged immediately af- ter an investigation confirms this. In addition, I would like to point out the written docu- mentation we have given several of these Class A Drivers due to their behavior as a result of them having voted in the union. They have been insubordinate, but we have 12 In a file memo regarding the incident dated January 12, Elioff stated that she interviewed Leopoldo Meza as a witness. At the hear- ing, Elioff testified that she had inadvertently substituted Leopoldo Meza’s name for that of Nicolas Macias. Elioff did not interview Bug- arin until June. treaded lightly towards them and merely given them some- thing in writing. In my opinion we cannot afford to devi- ate from our custom and practice as well as policy of zero tolerance towards violence in the workplace. When Guadalupe Arteaga went home, he telephoned Union Representative Ruben Luna (Luna). The following day, the two returned to Respondent’s facility at 11 a.m. Declining to permit Luna to participate, Elioff met with Guadalupe in her office and asked what had happened the day before. According to Guadalupe, he told her that Arturo Arteaga had grabbed his private parts and he had torn his jacket. Elioff accused Guada- lupe of trying to hit Arturo, saying she had two witnesses but refusing either to name them or let Guadalupe see them. Gua- dalupe said he had witnesses too, and asked her to let him con- front Arturo, which she refused. Guadalupe told Elioff that he and Arturo were just playing with each other and that Arturo was in the habit of playing with the employees. According to Elioff, Guadalupe told her that he and Arturo had been horsing around as usual, but this time Guadalupe had ripped Arturo’s jacket accidentally. Elioff denied that Guadalupe had said any- thing about Arturo grabbing him, which is inconsistent with her testimony at the April 5 unemployment hearing, where she admitted that Guadalupe Arteaga had told her on January 21 that Arturo Arteaga had grabbed his private parts. Elioff sent Guadalupe Arteaga home, saying she would call him later. A few hours later, Elioff called Guadalupe and told him he was fired. With the purpose of proving that Arturo Arteaga had a pro- pensity for physical sexual contact with employees, counsel for the General Counsel presented witnesses to testify about Arturo’s inappropriate behavior at work. Corroborated by Maria Zarco (Zarco), shipping and receiving employee, Guada- lupe Arteaga testified that he saw Arturo show obscene photo- graphs including two of Arturo in compromising positions with a scantily clad woman to Zarco and ask her if she would like to be the woman in the photographs.13 Guadalupe also testified that Arturo sometimes grabbed his buttocks while telling Zarco to watch. Zarco testified that Arturo and Guadalupe played around a lot, grabbing each other’s buttocks and genitals and pushing each other.14 Daily, she saw Arturo touch other driv- ers’ buttocks and genitals. On one occasion, Arturo told her to look inside a trailer where employee, Gustavo Diaz, sporting a bra and thong underwear, submitted to other drivers grabbing his privates.15 According to Zarco, beginning in October 2003, Arturo embraced her from behind on two occasions and asked her out, all of which Arturo denied. Zarco said she complained 13 Copies of the photographs were put into evidence. Admittedly, the photographs were taken at a party attended by both Guadalupe and Arturo Arteaga. I find it unnecessary to resolve who took the pictures, who kept them, or how they were obtained for submission into evi- dence. 14 According to Zarco’s January 14 written description of this physi- cal interaction, “other people that were not drivers would get in the game . . . [and] none of them would hide when they grabbed each oth- ers buttocks and their front part.” 15 Gustavo Diaz denied that he had ever, willingly or under coercion, worn the described garments at work. He did not seem a likely candi- date for vulgar inanity, and I credit his testimony. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1148 to Dominguez that Arturo was bothering her. Dominguez told Zarco that if it happened again, she was to tell her. About 2 weeks later, Zarco also reported Arturo’s behavior to Elioff. Elioff said she would take care of it. Both Dominguez and Elioff denied receiving any such complaints. Along these same lines, driver Alex Padilla, testified that he had twice seen Arturo Arteaga touch Guadalupe Arteaga’s buttocks both before and after the union election.16 He also testified that in about June 2003, he had seen Arturo grab a female lunch truck proprietor from behind and simulate having sex. Driver Adalid Osorto recalled seeing Arturo Arteaga grab the proprietor’s breasts from behind.17 He also testified that he saw Arturo touch Guadalupe Arteaga’s private parts, as well as Sanchez’, and grab Guadalupe from behind, simulating a sex act.18 Sanchez testified he saw Arturo inappropriately touch drivers who worked with him, particularly targeting Guadalupe by grabbing his buttocks or touching his anus. Sanchez agreed that Guadalupe also grabbed Arturo, saying the two “played with each other and also testified that he and other employees played around in the same way. Arturo Arteaga also called Guadalupe Arteaga “La Gorda” (the fat lady). The evidence shows that most employees had used the term as a nickname for Guadalupe for many years; there is no evidence the nickname originated with Arturo. For his part, Arturo Arteaga denied inappropriately touching Guadalupe Arteaga. Respondent’s witnesses, Hector Magana (Magana), senior shipping and receiving lead, Manuel Arteaga, Medina, Bugarin, and Arturo Arteaga’s uncle, denied seeing him do so.19 Although Medina admitted that Guadalupe com- plained to him that Arturo yelled at him, he denied that Guada- lupe complained of inappropriate touching. Respondent has a written sexual harassment prevention pol- icy, which is contained within the handbook distributed to all employees and posted by the entrance into the production plant and in the lunchroom. Further, Elioff conducts yearly training among hourly employees regarding the policy. C. Warning and Suspension of Felipe Serrano Serrano was an active union supporter, serving as the union observer at the union election in October 2003, and as shop steward thereafter. On January 29, Respondent issued Serrano a final warning and suspended him for 7 days. Respondent’s notice of warning read: 16 In a letter he provided to Guadalupe Arteaga in January, Padilla described Arturo Arteaga’s conduct with Guadalupe Arteaga as mutual joking around, saying, “they always treat each other too informally.” 17 Arturo Arteaga denied inappropriate behavior with Anna Doster, proprietor of the lunch truck with whom he was friendly and whom he occasionally hugged. Doster corroborated his testimony, and I find her credible. 18 In a letter he provided to Guadalupe Arteaga in January, Osorto described Arturo Arteaga’s conduct with Guadalupe as joking around and “struggling.” 19 Neither Magana’s nor Bugarin’s denial is entitled to any weight. The former did not work the same shift as Arturo Arteaga, and the latter admitted, under cross-examination, that Guadalupe and Arturo Arteaga touched and shoved each other, playing around like children. A copy of this memo is being given to you for the pur- pose of clarifying your position with the company based on unacceptable behavior you have exhibited recently, not only with your fellow drivers, but with other company personnel as well. Previously, you were given a memo dated November 17, 2003 as a direct result of your continued volatile and intimidating behavior while at work. That memo directly referenced your unacceptable, discourteous, and abusive behavior towards a supervisor, which was witnessed by employees. . . . . A second incident involved two fellow drivers. In that situation, you were once again verbally abusive, confron- tational, antagonistic, intimidating and very disrespectful according to the information given by these drivers. The most recent incident occurred on January 26, 2004, and involved a warehouseperson in the Shipping & Receiving Department on Monday, January 26th. This display of unacceptable behavior was witnessed by several individuals. Based on the company’s investigation of the incident, including witness interviews, it was determined that you were abusive, confrontational and antagonistic towards a fellow employee. Please be advised, however, that these are not the only cases of unacceptable workplace behavior which you have demonstrated. Therefore, consistent with the company’s Global Busi- ness Practices standards regarding abusive and intimidat- ing behavior, and based on the facts summarized above, coupled with our strict policy of zero tolerance towards any acts of violence, you are hereby on notice that any fu- ture incident of this nature will result in your immediate discharge from the company. Lastly, you are being suspended, without pay, for one week starting immediately. The incidents alluded to in the warning notice refer to the fol- lowing circumstances: November 17, 2003: Respondent issued a warning to Mr. Serrano on for making an obscene gesture and deroga- tory comments to his supervisor, Arturo Arteaga on No- vember 16, 2003. There is no allegation this warning vio- lated the Act. Incident involving two fellow drivers: This item re- lates to Mr. Serrano’s exchange with Mr. Garcia and Mr. Maravilla, described above. According to Ms. Elioff, the two employees told her that Mr. Serrano had called them idiots for not attending union meetings. When the em- ployees said they were not interested, Mr. Serrano became belligerent and cursed the two, one of whom cursed back. January 26, 2004: This item stems from a confronta- tion between Mr. Serrano and Mr. Magana. Mr. Magana testified that sometime around the end of January, shortly after he gave Mr. Serrano a direction to move a trailer, Mr. Serrano approached him in the presence of other employ- ees and told Mr. Magana not to mess with him. INTERNATIONAL BAKING CO. & EARTHGRAINS 1149 When Mr. Magana denied having done so, Mr. Serrano said, “Don’t mess with me; you don’t know me.” When Mr. Magana wanted to know if Mr. Serrano was threatening him and what he intended to do, Mr. Serrano said, “Keep it up, and you will see; you will regret it.” Mr. Magana reported the incident to Mr. Medina and Ms. Elioff. The General Counsel does not allege that Respon- dent’s consequent warning to Mr. Serrano violates the Act. D. Suspension and Termination of Maria Zarco Dominguez worked in Respondent’s human resources office beginning in about 1989. Her duties included review of em- ployee work authorization forms, including Employment Au- thorization Cards (work permits) issued by the U.S. Department of Justice, Immigration and Naturalization Service, some of which required annual renewal. In 1994, employee Auria Chavez recommended that Dominguez hire Zarco, whom she described as her sister, and Respondent did so in October 1994. Then and later, Dominguez socialized with Auria Chavez and other employees who described themselves as sisters of Zarco and nationals of Mexico. Dominguez, as well as her supervisor, Elioff, assumed Zarco was also a Mexican national. Additionally, Elioff based her belief that Zarco was from Mexico on her recollection that the group, including Zarco, had at one time delegated one sister to go to Mexico to care for their ailing mother. On April 18, 2002, Local 37 petitioned for an election among Respondent’s production and maintenance employees at its Vernon facility. Zarco served as Local 37’s observer at the election held July 9 and 10, 2002, which Local 37 lost by a large margin.20 Following the election, Local 37 filed unfair labor practice charges and objections to the election. In Au- gust 2003, a hearing was held before an administrative law judge (ALJ) on the charges and objections, at which Zarco gave extensive testimony.21 All of Respondent’s alien employees, including Zarco, were obligated by Federal law annually to obtain and provide to Respondent employment authorization documents. Respondent maintained a “tickler” system designed to alert its human re- source department to work permit expirations due to occur within 90 days so that the staff could remind employees of their documentation responsibilities. Respondent conducted monthly reviews of the tickler file and gave reminders to employees as indicated. Copies of work permits bearing Zarco’s picture, name, and signature, for the years 1998–1999, 2000–2001, 2001–2002, and 2003–2004 were received into evidence. Each showed “Country of Birth” as “Guatemala.” According to Dominguez, during her yearly reviews of Zarco’s employment authorization cards, she failed to notice that the cards named Guatemala as 20 The facts concerning Local 37’s representation efforts and Zarco’s participation therein are set forth in Sara Lee Bakery Group d/b/a In- ternational Baking Co. & Earthgrains, supra. 21 On December 3, 2003, the ALJ, who largely discredited Zarco’s testimony, issued his decision, finding Respondent had engaged in certain unlawful and objectionable conduct. By order dated June 25, the Board affirmed the administrative law judge’s decision and directed that a second election be held. Ibid. Zarco’s country of birth and never asked Zarco where she had been born. After Respondent reduced human resource staffing in 2001 or 2002, Dominguez’ supervisor, Elioff, began to assist Dominguez in reviewing employee work permits, as needed. In January 2004, while performing the monthly tickler file review, Elioff saw that Zarco’s work permit was due to expire in 90 days. Consistent with Respondent’s common practice, Elioff reviewed Zarco’s permit22 and noticed the country of origin stated thereon was Guatemala. As Elioff believed Zarco was from Mexico and not Guatemala, she decided to obtain an explanation. According to Zarco, on January 13, the day after Respondent terminated Guadalupe Arteaga, Magana, in the presence of Manuel Arteaga asked Zarco what she would say if anyone asked her if Arturo Arteaga played around with the drivers. She answered that it was the truth that Arturo played around with the drivers.23 The following morning, January 14, Zarco was called to Elioff’s office. Zarco testified that Elioff told her she was aware Guadalupe Arteaga was asking some employees to write letters supporting his claim that he had problems with Arturo Arteaga. Zarco said she had not given him any letter but that she was thinking about whether to help him. Zarco reminded Elioff that she had complained of Arturo’s conduct toward her. Elioff told Zarco that was something that had to resolve itself, adding that the people who wanted to help Guadalupe were going to end up in trouble. Zarco said she had not given Gua- dalupe any letter. Elioff said she was just telling her that peo- ple who helped him were going to end up in trouble. Elioff denied having any such conversation regarding Guadalupe Arteaga. According to Zarco, Elioff then changed the subject and told Zarco that while checking work permits nearing expiration, she had noticed an error on Zarco’s work permit. Pointing to the word “Guatemala” that appeared under “Country of Birth” on Zarco’s work permit, Elioff said, “There is a mistake—an error in your permit. It says ‘Guatemala.’” Elioff told Zarco she should go to an attorney and see about fixing the error, giving her a week to do so. Zarco said she would see an attorney so he/she could check and see what the error was. Elioff gave a different version of her and Zarco’s exchange. According to Elioff, she pointed to the word “Guatemala” on Zarco’s work permit and said, “But we all know you are from Mexico.” Zarco replied that she had “fixed” her papers like a lot of other people have by saying they are from Guatemala.24 Elioff interrupted Zarco, saying, “Please don’t tell me anything more that is going to make me have to terminate you. I prefer 22 Respondent routinely double-checked expiration dates by referring to the work permits consequent to occasional employee defensiveness about the reminders. 23 Both Magana and Manuel Arteaga denied this exchange. As Zarco appeared to testify sincerely and forthrightly about the conversa- tion, I credit her testimony. 24 A consequence of the Nicaraguan Adjustment and Central Ameri- can Relief Act (NACARA) was that certain Guatemalans, inter alia, were eligible for more favorable immigration treatment than Mexican citizens, which could arguably provide a motive for misrepresenting country of origin. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1150 to believe that the INS made a mistake on your work permit and therefore what I am going to need for you to do is go to the INS, let them know that this is an error on your work permit. What they most likely will give you is a letter to bring back to me confirming that they are going to rectify [the error] and I will be able to have you come back to work.” Later that day, Zarco wrote the letter Guadalupe Arteaga had requested, describing her observations of Arturo Arteaga’s conduct with the drivers. Regarding Elioff, Zarco wrote: And now with the problem that happened with Arturo and J. Guadalupe they threaten to fire me if I say something of what I know. Irma Elioff has threatened me with calling immigra- tion so they can deport me because that has always been the threat and since I told them that I was only going to say the truth and not lies she then told me that she gave me one week to put my documents in order and if not she would have to fire me and call immigration, and the motive was that I did not want to collaborate with her she was also not going to do it with me. She said that J. Guadalupe for having lied with re- spect to the Union would have to leave and all the people that were on his side. And for me to think about it and I had a week to do so. The next day, January 15, Zarco spoke to Alberto Salas (Salas), an assistant in the office of Frank Carvajal, an immi- gration attorney who had previously assisted Zarco in obtaining her work permit. Zarco told him of her meeting with Elioff. Salas asked what the error was, and Zarco said it was in the place on the card where “Guatemala” was printed.25 Salas checked on his computer and said it was no error; the current card read the same as previous cards. Salas wrote the following letter, which reads, in pertinent part: We have handled the legalization of Maria Zarco Amaya, a native of Guatemala. It is my understanding that an employer may ask for a valid work permit and verify the permit. You are free to do so. I do not understand why anyone would have any doubts about the validity of her work permit. Any other type of inquiry is unusual and probably not allowed by law. . . . Please also read the notice from the BCIS on unfair employment practices on immigration related matters. On the following Monday afternoon, Zarco presented the let- ter to Elioff, explaining that Salas said there was no mistake regarding Guatemala. According to Zarco, Elioff said she would call immigration and asked if Zarco would answer their questions. When Zarco agreed to do so, Elioff changed her mind. Telephoning Salas instead, she angrily spoke to him in English, which Zarco does not understand. At the conclusion of the conversation, Elioff told Zarco her attorney was commit- ting fraud by putting Guatemala on her work permit, as she knew Zarco and her sisters who also worked at the Vernon facility were from Mexico. Zarco said the employees Elioff referred to were not her sisters but her cousins, whom she called sisters because they grew up together, and that she, her- 25 Salas’ testimony in this regard did not corroborate Zarco’s. Salas testified that Zarco told him her supervisor was saying that Zarco was not Guatemalan. self, was born in Guatemala.26 She said that if Elioff had asked where she was from, she would have told her, without wasting her time getting a letter. Elioff asked why Zarco had not told her she was from Guatemala. Zarco told Elioff she had never asked her and suggested she call immigration. Elioff said she would call INS the following day. Elioff’s version of what transpired between her and Zarco that day is significantly different. Elioff said that she told Zarco the letter from Salas was not what she needed; rather, she required a letter from the INS stating they would rectify the error on Zarco’s work permit, which stated she was from Gua- temala, to correctly read that she was from Mexico. Elioff then telephoned Salas and told him essentially the same thing, after which, utilizing the speaker feature of the telephone while Salas was still listening, she translated what she had told him to Zarco. When she had finished, Salas said, “That is fine,” and they terminated the conversation. The hearing was continued from April 7 to May 23, 2005, to permit Salas to testify. Concerning his January 15 conversation with Elioff, Salas said he told Elioff how she could verify the validity of Zarco’s work permit. Elioff told him that she did not question the validity of the work permit but said she knew Zarco was Mexican, not Guatemalan. Salas told Elioff that at some point Zarco had to have presented evidence to INS that she was from Guatemala, which evidence had apparently satis- fied INS. He suggested that Elioff speak to INS if she doubted the veracity of the evidence. He told Elioff that the company’s only legal obligation was to copy Zarco’s work permit and keep it on file, but if she felt the Company had to do more, a letter to INS would cover the Company’s obligations. Elioff told Salas that Respondent was going to fire Zarco for falsifying immigra- tion documents because the Company could get into trouble.27 I have carefully considered all relevant testimony in deter- mining whether to accept Zarco or Elioff’s account of their conversations. Zarco testified, essentially, that she did not understand Elioff doubted the accuracy of Zarco’s stated coun- try of origin. Yet, by Zarco’s account, Elioff specifically pointed to “Guatemala” as being erroneous. Moreover, Salas testified that Zarco told him she was having trouble with a su- pervisor at work who said Zarco was not Guatemalan. It is not plausible that Zarco did not comprehend Elioff’s concern, and her implausible testimony on this point reflects poorly on her credibility. Further, Zarco’s written account of her conversa- tion with Elioff differs significantly from her testimony at the hearing. In her January 14 letter, Zarco recounted neither Elioff’s statement that she knew employees were writing letters 26 At the hearing, Zarco denied her country of origin was Mexico. I declined to permit Respondent to adduce additional evidence regarding Zarco’s origin and her immigration status. The relevant evidence is what Respondent believed regarding Zarco’s status at the time of her termination and whether it held the belief in good faith or was moti- vated by considerations unlawful under the Act. Ascertaining Zarco’s actual status months after her discharge neither establishes Respon- dent’s motive nor significantly bears on credibility. 27 Although Salas could not, at the hearing, independently recall Elioff’s having made that statement, he confirmed that he had so at- tested to a Board agent during the investigation stage of this matter and that subsequent illness and medication had affected his recall. INTERNATIONAL BAKING CO. & EARTHGRAINS 1151 supporting Guadalupe nor her threat that all employees who helped Guadalupe would end up in trouble, both of which de- tails are so noteworthy that it is unlikely Zarco would have neglected to include them in her letter had the statements been made. Zarco wrote, essentially, that Respondent had threatened “to fire [her] if [she said] something of what [she] knew,” but that is also not consistent with Zarco’s testimony. Given these inconsistencies, I cannot accept Zarco’s testimony of her con- versation with Elioff, and I accept Elioff’s account. On Thursday, Elioff telephoned Zarco and told her the com- pany attorneys had decided she should be fired. According to Elioff, she told Zarco that Respondent could not allow her to work knowing that her work permit was not legal. Thereafter, Respondent sent Zarco a termination notice dated January 22, in which the reason for termination noted, “Voluntary Resigna- tion.”28 V. DISCUSSION A. Independent Violations of Section 8(a)(1) of the Act 1. Legal principles Section 8(a)(1) of the Act provides that “It shall be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 [of the Act].” In considering communications from an employer to employees, the Board applies the “objective standard of whether the remark tends to interfere with the free exercise of employee rights. The Board does not con- sider either the motivation behind the remark or its actual effect. Miller Electric Pump & Plumbing, 334 NLRB 824 (2001). Communications from an employer to employees that threaten reprisal for supporting a labor organization, or promise benefit for not doing so, interfere with, restrain, or coerce em- ployees as contemplated by Section 8(a)(1). Manhattan Crowne Plaza Town Park Hotel Corp., 341 NLRB 619 (2004); Grouse Mountain Lodge, 333 NLRB 1322 fn. 2 (2001). The Board has adopted a totality-of-the-circumstances test in determining whether questioning of an employee constitutes unlawful interrogation. Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The Board also consid- ers the following criteria called “the Bourne factors:”29 (1) Background, i.e. history of employer hostility and discrimination. (2) Nature of information sought, e.g. on which to base employment action. (3) Identity of the questioner, i.e. place in company hi- erarchy. (4) Place and method of interrogation, e.g. casual or formal. (5) Truthfulness of the reply. Ultimately, the Board’s task is to “determine whether under all the circumstances the questioning at issue would reasonably 28 Although Respondent contends Zarco resigned, clearly Respon- dent terminated her. 29 First set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). tend to coerce the [questioned] employee so that he or she would feel restrained from exercising rights protected by Sec- tion 7 of the Act.” Westwood Health Care Center, 330 NLRB 935, 940 (2000). The interrogation occurring herein is evalu- ated under those standards. It is unlawful under Section 8(a)(1) of the Act for an em- ployer to create an impression that it is watching or monitor- ing its employees’ protected union activity, or in other words, to create an impression of surveillance. The under- lying premise is that employees should be free to participate in union activity without fearing that members of manage- ment are peering over their shoulders, noting who is in- volved in union activities and to what extent or how. “‘[T]he test for determining whether an employer has cre- ated an impression of surveillance is whether the em- ployee[s] would reasonably assume from the statement in question that [their] union activities had been placed under surveillance.’ Tres Estrellas de Oro, 329 NLRB 50, 51 (1999).” St. Thomas Gas, 336 NLRB 711, 719–720 (2001). It is not necessary that employees attempt to keep their activi- ties secret to create a violation, and it is not necessary that the employer’s words indicate the information has been obtained illegally. Grouse Mountain Lodge, 333 NLRB at 1322–1323. 2. Supervisory conduct A. Arturo Arteaga violated Section 8(a)(1) of the Act by the following conduct: 1. In September 2003, asking Guadalupe Arteaga if he had signed a union card, saying he knew seven drivers had and that he had been told one of the signators was named “Arteaga.” Arturo’s statements constituted unlawful interrogation and unlawfully created the impression of surveillance. 2. On later occasions, by directing Guadalupe Arteaga to tell him if he knew anything about the Union and to tell him which employees had “voted” for the Union, engaging in unlawful interrogation and unlawfully requesting employees to report to Respondent the union activities of other employees. Arm- strong Machine Co., 343 NLRB 1149, 1150 (2004); Fixtures Mfg. Corp., 332 NLRB 565 (2000). 3. Telling Guadalupe Arteaga that even if employees had not “signed,” they would have to leave, thereby threatening reprisals for union activity.30 B. Sara Dominguez violated Section 8(a)(1) of the Act by the following conduct: 1. Prior to the October election, asking Guadalupe Arteaga if he knew something about the Union, which constituted unlawful interrogation. 2. Impliedly threatening Guadalupe Arteaga with unspeci- fied reprisals by conjoining a comment on his seniority and his “decent” pay rate with an admonition that the Union would harm him and that it would be better for him not to sign a union card. It is reasonable to conclude that Dominguez’ statement 30 Counsel for the General Counsel argues that Arturo Arteaga also interrogated Sanchez. I have not accepted Sanchez’ testimony to that effect. I have found only that Arturo Arteaga told Sanchez to be careful whom he voted for. Such an admonition, without any accompanying intimation of harmful consequences, is not coercive. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152 must have conveyed a message that union support would nega- tively impact Guadalupe’s seniority and pay level. See Reno Hilton, 319 NLRB 1154, 1155 (1995). Dominguez gave Gua- dalupe no explanation as to how supporting the Union might harm him, leaving him to infer that the harm might arise from subjective factors within Respondent’s control. C. Manuel Arteaga violated Section 8(a)(1) of the Act by the following conduct: 1. Prior to the October election, asking Guadalupe Arteaga and Sanchez if they knew which employees had signed union cards. 2. Informing the two employees that Respondent would out- source their work. Although Respondent’s later outsourcing of its delivery work may have been lawful, Manuel Arteaga’s suggestion to employees that it was linked to their union activi- ties is coercive even if his statement were untrue. Moreover, the statement evidences Respondent’s hostility toward employ- ees’ union activities. Paragon Pattern & Mfg. Co., 342 NLRB 167 (2004). 3. Telling Guadalupe that he knew who the union leader and the card signers were created an impression of surveillance. 4. Admonishing Sanchez not to “do wrong by us,” in the upcoming election unlawfully equated loyalty to the company with opposition to the Union. The clear suggestion that voting for the Union would “wrong” Respondent is coercive and vio- lates Section 8(a)(1) of the Act. 5. Following the election, telling Guadalupe he knew how he voted created an impression of surveillance. D. Jesse Medina violated Section 8(a)(1) of the Act by the following conduct: 1. On various occasions, set forth above, asking Guadalupe Arteaga if he knew anything about the Union and adjuring him to tell the truth about any involvement, all of which constitutes unlawful interrogation. 2. Telling Guadalupe that he knew he was comfortable in his job and that he should think about the Union, as it was not a good thing. By linking Guadalupe’s current job comfort with abstention from union adherence, Medina impliedly threatened Guadalupe with unspecified reprisals, as the reasonable infer- ence to be drawn from his statement was that union support would disturb Guadalupe’s contentment. 3. On various occasions, asking Serrano who organized the drivers and soliciting him to find out who wanted the Union and who had signed authorization cards, all of which consti- tutes unlawful interrogation. 4. Prior to the election, telling Serrano not to invite other employees to a union meeting, under penalty of adverse conse- quences, thus interfering with Serrano’s Section 7 rights. E. Irma Elioff did not violate the Act by her cross- examination of Serrano at the unemployment hearing: Counsel for the General Counsel argues that a cross- examination question posed by Elioff to Serrano during the course of Guadalupe Arteaga’s unemployment hearing consti- tuted a threat of unspecified reprisals against Serrano for having testified in support of another employee’s unemployment insur- ance claim. Elioff asked Serrano if he was, at that time, in “final warning” status, which he was. While such a question could be viewed as a reminder to Serrano that he was on shaky disciplinary ground with Respondent and had better mind how he testified, Elioff asserts that her intent in asking the question was solely to bring to the unemployment ALJ’s attention the fact that Serrano arguably had reason to be disgruntled with Respondent. There is no evidence Respondent otherwise threatened or coerced any employee in connection with his/her testimony at the unemployment hearing, and there is no evi- dence to justify ascribing to Elioff any improper motivation in raising a legitimate credibility issue in that forum. Accord- ingly, I conclude the General Counsel has not proved Elioff engaged in 8(a)(1) conduct in this instance, and I shall dismiss this allegation of the complaint. F. Statements made in Respondent’s preelection meetings with drivers: In examining union campaign statements made by an em- ployer to its employees, neither the subjective reactions of em- ployees nor the intent of the speaker are determinative in find- ing 8(a)(1) violations. President Riverboat Casinos of Mis- souri, Inc., 329 NLRB 77 (1999); Swift Textiles, 242 NLRB 691 fn. 2 (1979). Rather, “the issue is whether objectively . . . remarks reasonably tended to interfere with the employee’s right to engage in [a] protected act.” Southdown Care Center, 308 NLRB 225, 227 (1992). As noted above, I have credited the testimony of Elioff, Medina, and Dominguez regarding what was said at employee meetings. The General Counsel asserts that even disregarding employee testimony, Respon- dent’s evidence proves that Respondent unlawfully conveyed to its drivers the message that, “one way or another, either by strikes, the collective-bargaining agreement or by subcontract- ing, employees would lose their jobs if the Teamsters Union won the election.” Counsel for the General Counsel’s censure of Elioff’s preelection statements is three-pronged: (1) the statements threatened the likelihood of future union-called strikes and concomitant job loss if employees selected the Un- ion; (2) the statements threatened outsourcing of product deliv- ery if employees selected the Union; (3) the statements threat- ened adherence to an inflexibly punitive disciplinary system upon negotiation of a union contract. As for Elioff’s statements concerning strikes, the script shows she accused the Teamsters of striking more frequently than any other union in the country and explained that strikes can occur when a company and a union do not agree to contract terms during negotiations. Elioff did not imply the company would not conduct contract negotiations in good faith or that the union would have to strike to gain reasonable demands, or that union representation would inevitably lead to strikes and job loss. Rather, it appears that Elioff accurately outlined what may occur when an employer and a union reach valid impasse during bargaining. The Board has approved campaign lan- guage that discusses the economic realities of the bargaining process. J. R. Wood, Inc., 228 NLRB 593, 593–594 (1977). Applying the Board’s Southdown standard to her remarks, I cannot find that Elioff’s description of strike potential or con- sequences unlawfully interfered with employees’ Section 7 rights. A threat to outsource or subcontract work because employ- ees elect to be represented by a union is unlawful. MPG Transport, Ltd., 315 NLRB 489 fn. 1 (1994). As for Elioff’s INTERNATIONAL BAKING CO. & EARTHGRAINS 1153 statement concerning delivery outsourcing, she neither threat- ened that Respondent would predicate outsourcing on employ- ees’ representational decision nor suggested that outsourcing would be accomplished without reference to any elected repre- sentative. She merely notified the drivers that Respondent would consider the costs of in-house versus subcontracted de- livery and that delivery as well as production costs had to corre- late to earnings, a fundamental facet of entrepreneurial plan- ning, which could not reasonably have surprised or alarmed employees. I do not find Respondent’s stated intention to con- sider lawful economic strategies in operating its business vio- lated Section 8(a)(1) of the Act. Finally, Elioff told employees, essentially, that if a future un- ion contract contained a disciplinary procedure, Respondent would have to adhere to it even for such minutiae as reporting for work 5 minutes late. Viewed objectively, this statement carries with it both an implied promise (continuation of the current, presumably flexible, disciplinary approach if the drivers rejected the Union) and an implied threat (confor- mity to strict disciplinary procedures if the drivers chose union representation). I find, therefore, that Elioff’s state- ment regarding the potential impact of a contractual disci- plinary procedure violated Section 8(a)(1) of the Act. B. Suspension and Termination of Guadalupe Arteaga Respondent’s motivation in suspending and terminating Guadalupe Arteaga on January 12 and 13, respectively, is in dispute. In resolving that issue, the Board’s analytical guide- lines in Wright Line,31 control. If the General Counsel’s evi- dence supports a reasonable inference that union activity was a catalyzing factor in Respondent’s suspension and subsequent discharge of Guadalupe Arteaga, he has made a prima facie showing of unlawful conduct. “The General Counsel must establish four elements by a preponderance of the evidence. First, the General Counsel must show the existence of activity protected by the Act. Second, the General Counsel must prove that the respondent was aware that the employee had engaged in such activity. Third, the General Counsel must show that the alleged discriminatee suffered an adverse employment action. Fourth, the General Counsel must establish a motivational link, or nexus, between the employee’s protected activity and the adverse employment action.” [Citation omitted.] American Gardens Management Co., 338 NLRB 644, 645 (2002). If the General Counsel establishes these four elements, the burden of proof then shifts to Respondent to establish persuasively by a preponderance of the evidence that it would have made the same decision, even in the absence of protected activity.32 Avondale Industries, 329 NLRB 1064 (1999); T & J Trucking Co., 316 NLRB 771 (1995). The evidence herein clearly establishes that Guadalupe Arteaga was an active union supporter. As evidenced by the 31 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 32 A “preponderance” of evidence means that the proffered evidence must be sufficient to permit the conclusion that the proposed finding is more probable than not. McCormick on Evidence, at 676–677 (1st ed. 1954). supervisory violations of Section 8(a)(1) detailed above, Re- spondent bore animosity toward its drivers’ union activities. Through interrogation, Respondent’s supervisors made re- peated efforts to ascertain the identities of the union proponents among the drivers. By creating the impression of surveillance and by making veiled threats of reprisal, Respondent’s supervi- sors also tried to quell union support. Following the election, Respondent learned that Guadalupe Arteaga had, indeed, voted for the Union when he admitted as much to Manuel Arteaga, fellow supervisor of and cousin to Arturo Arteaga. Moreover, Guadalupe Arteaga professed to have done so in hope of ob- taining better treatment from Arturo Arteaga, whose later com- plaint formed the basis for both suspension and discharge. It is reasonable to infer that Arturo Arteaga might bear particular animosity toward Guadalupe Arteaga who had, prior to the election, consistently denied union participation in response to Arturo’s questions. In these circumstances, I conclude the General Counsel has made “an initial ‘showing sufficient to support the inference that protected conduct was a motivating factor’” in Respondent’s decision to suspend and terminate Guadalupe Arteaga. American Gardens Management Co., supra.33 The burden of proof therefore shifts to Respondent to show that Guadalupe Arteaga’s termination would have (not just could have) occurred even in the absence of his union sup- port. Avondale Industries, supra at 1066. In assessing Respondent’s evidence of lawful purpose in suspending and terminating Guadalupe Arteaga, I recognize the fact that an employer’s desire to retaliate against an employee or to curtail protest does not, of itself, establish the illegality of a termination. If an employee provides an employer with suffi- cient cause for dismissal by engaging in conduct that would, in any event, have resulted in termination, the fact the employer welcomes the opportunity does not render the discharge unlaw- ful. Avondale Industries, supra; Klate Holt Co., 161 NLRB 1606, 1612 (1966). The correlative canon, of course, is that if an employer’s motive is unlawful, it is immaterial that a legiti- mate reason for dismissal may exist. E & L Transport Co., 331 NLRB 640 (2000). Further, it is well established the Board “cannot substitute its judgment for that of the employer and decide what constitutes appropriate discipline.” Detroit Panel- ing Systems, 330 NLRB 1170, 1171 fn. 6 (2000), and cases cited therein. Nonetheless, the Board’s role is to ascertain whether an employer’s proffered reasons for disciplinary action are the actual ones. Ibid. Two questions must be answered to permit an informed de- termination of Respondent’s motivation: (1) Did Arturo Arteaga truthfully report the facts of his January 12 confronta- tion with Guadalupe Arteaga to upper management; and, as a corollary question, if not, did he misreport the incident because 33 I do not agree with the General Counsel that Elioff’s January 12 e-mail to headquarters evidenced animus. Elioff referred to having “treaded lightly” in cases of driver insubordination that had resulted from their “having voted in the union.” It does not follow that because Respondent may, accurately or inaccurately, have perceived negative postelection alteration in some employees’ behavior, it therefore bears animosity toward union activity. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1154 of his animosity toward Guadalupe’s union activities?34 (2) Even assuming Arturo accurately recounted to management what had occurred between him and Guadalupe, did Respon- dent suspend and terminate Guadalupe because he assaulted Arturo or because he had supported the Union in its recent and successful representation bid? In considering whether Arturo Arteaga accurately reported his January 12 confrontation with Guadalupe Arteaga, I have carefully examined all accounts of the incident. I note that Arturo has consistently held to his version of what occurred, while Guadalupe has given inconsistent accounts. Thus, Gua- dalupe testified that he did not attack Arturo but only reacted to Arturo’s vicious and unprovoked frontal assault on his testicles; yet his unemployment testimony suggests that Arturo assaulted him from behind whereupon he “turned around desperately,” and he told both Elioff and Zarco that he and Arturo were play- ing around at work, adding to Zarco that he initiated first con- tact by grabbing Arturo from behind. Guadalupe’s corroborat- ing witness, Serrano, also gave inconsistent reports at the hear- ing, Serrano said he saw Arturo grab Guadalupe by the “balls,” which was essentially consistent with his testimony at Guada- lupe’s unemployment hearing, but in a contemporaneous writ- ten account, he wrote that he saw Arturo grab Guadalupe on the butt. Moreover, Serrano’s unemployment testimony of Arturo and Guadalupe facing each other at the time of Arturo’s attack did not agree with Guadalupe’s instant testimony that Arturo was at his side when he assaulted him. Given the vacillatory testimony of the General Counsel’s witnesses regarding the January 12 confrontation between Arturo and Guadalupe Arteaga, I cannot accept their accounts. Accordingly, I give weight to Arturo Arteaga’s testimony of what occurred. Since I find that Arturo Arteaga did not attack Guadalupe Arteaga, it is unnecessary for me to consider those cases in which the Board and the courts reject misconduct defenses where the employer provokes an employee to the point where he commits an indiscretion and then relies on his conduct to terminate him. See, e.g., NLRB v. M & B Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965). In light of this finding, I also find it unnecessary to determine whether Arturo had a proclivity for unseemly sexual interaction with others. My conclusion that Arturo Arteaga did not attack Guadalupe Arteaga does not end the matter, however; it still must be de- termined whether Respondent actually suspended and termi- nated Guadalupe because he assaulted Arturo, or whether ani- mus toward Guadalupe’s union activities motivated Respondent to seize upon the incident to rid itself of a union supporter. Direct evidence of unlawful motivation is seldom avail- able, and unlawful motivation may be established by cir- cumstantial evidence, the inferences drawn therefrom, and the record as a whole. Tubular Corp. of America, 337 NLRB 99 (2001); Abbey Transportation Service, 284 NLRB 689, 34 In the latter situation, even if Respondent relied in good faith upon Arturo Arteaga’s report, Guadalupe Arteaga’s discipline would violate the Act, as Respondent is bound by the acts of its supervisor, e.g., falsely accusing an employee of misconduct in retaliation for his union activities. Dobbs International Services, 335 NLRB 972, 973 (2001). 701 (1987); Shattuck-Denn Mining Corp., 362 F.2d 466, 470 (9th Cir. 1966). Indications of discriminatory motive may include expressed hostility toward the protected activity,35 abruptness of the adverse action,36 timing,37 failure to conduct a full and fair investigation,38 disparate treatment,39 and/or depar- ture from past practice.40 There is no overt evidence of union animus directed specifically toward Guadalupe Arteaga, but circumstances, as described above, exist from which it is rea- sonable to infer animus. However, no suspicious timing exists herein. Guadalupe’s union activity attracted supervisory atten- tion prior to the October 2003 election, but there is no clear evidence that Respondent continued its antiunion conduct thereafter. While Respondent’s action in suspending and termi- nating Guadalupe was certainly abrupt, the immediacy of it is reasonably explained as a justifiable reaction to an employee’s assault on his supervisor. Further, there is no evidence of dis- parate treatment or departure from past practice. Respondent has, at all relevant times, had a zero-tolerance-for-violence policy, and there is no evidence Respondent disregarded or minimized that policy. Counsel for the General Counsel argues that Respondent evidenced discriminatory motivation by conducting a cursory investigation of Arturo and Guadalupe’s confrontation. While Elioff did not interview every potential witness, there is no evidence Respondent sought to shape or distort its inquiry or engaged in sham fact gathering. And while it is also true Elioff refused to identify Respondent’s witnesses for Guadalupe or to let him confront Arturo, “[I]t is not the province of the Board to assure that employees can confront their accusers. An employer’s failure to accord an employee this asserted ‘right’ does not establish a discriminatory motive.” Chart- wells Compass Group, USA, Inc., 342 NLRB 1155 (2004). Respondent provided Guadalupe reasonable information regarding the nature of his misconduct, and, although inter- viewing the subject employee is not a requirement for an ade- quate investigation,41 gave him an opportunity to tell his side of the story. Counsel for the General Counsel also asserts that Elioff’s refusal to permit Guadalupe to have union rep- resentation during her interview with him is evidence of “profound hostility to the Union campaign.” Respondent had no legal obligation to admit a union representative into the interview, and I cannot infer animus from Elioff’s de- clining to do so. Counsel for the General Counsel further contends that Elioff’s January 12 e-mail to headquarters showed a close- minded determination to terminate Guadalupe Arteaga re- gardless of what any investigation showed, which obduracy reveals unlawful motivation. However, Elioff prepared the 35 Mercedes Benz of Orland Park, 333 NLRB 1017 (2001). 36 Dynabil Industries, 330 NLRB 360 (1999). 37 McClendon Electrical Services, 340 NLRB 613 fn. 6 (2003); Beth- lehem Temple Learning Center, 330 NLRB 1177 (2000). 38 Bonanza Aluminum Corp., 300 NLRB 585 (1990). 39 NACCO, 331 NLRB 1245 (2000). 40 Sunbelt Enterprises, 285 NLRB 1153 (1987). 41 Frierson Building Supply Co., 328 NLRB 1023 (1999). INTERNATIONAL BAKING CO. & EARTHGRAINS 1155 e-mail after having spoken to Arturo Arteaga and another employee about the incident. From their accounts, she had initial knowledge of what had occurred, and no valid reason has been shown why Elioff should not have believed Arturo’s account. See American Thread Co., 270 NLRB 526 (1984). She was, therefore, entitled to give a preliminary recom- mendation as to disciplinary disposition of the matter. In short, neither Respondent’s investigation of Guadalupe Arteaga’s behavior nor its consequent termination proceeding evidences animus. Finally, counsel for the General Counsel argues that dis- charge is an extreme penalty, which should not be applied to an otherwise exemplary employee. However, Respondent’s action is not disproportionate to the offense even for a commendable worker. The Board has recognized that changes in the work- place environment require serious employer attention to poten- tial workplace violence,42 and Guadalupe Arteaga’s discharge for violence toward his supervisor is neither unreasonable nor contrived. See Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996). Accordingly, I find Respondent met its burden of showing Guadalupe Arteaga’s discharge would have occurred even in the absence of his union activities. Respondent did not, therefore, violate Section 8(a)(3) and (1) of the Act by discharging Guadalupe Arteaga. C. Warning and Suspension of Felipe Serrano Serrano was a high profile union supporter, serving as union observer at the October 2003 union election and as shop stew- ard thereafter. The General Counsel contends that Respon- dent’s January 29 warning to Serrano and his consequent 7-day suspension were motivated by its animus toward his union ac- tivities. The Board’s analytical guidelines in Wright Line, su- pra, control. As explained in detail above, if the General Coun- sel’s evidence supports a reasonable inference that union activ- ity was a catalyzing factor in Respondent’s warning and sus- pension of Serrano, he has made a prima facie showing of unlawful conduct. The burden of proof then shifts to Respon- dent to establish persuasively by a preponderance of the evi- dence that it would have made the same decision, even in the absence of protected activity. With regard to the discipline given Serrano, it is undisputed that the General Counsel has established the first three of four elements the Board set forth in American Gardens Management Co., supra, the General Counsel has shown that Serrano en- gaged in protected activity; the General Counsel has proved that Respondent was aware of Serrano’s protected activity, and the General Counsel has shown Serrano suffered an adverse employment action. Respondent contends, however, that the General Counsel has not met the fourth element, i.e., establish- ing a motivational link, or nexus, between Serrano’s protected activity and the discipline given him. With regard to the fourth element, it is clear from Serrano’s warning notice that Respondent based Serrano’s discipline, at least in part, on certain of Serrano’s union-related activity. The warning notice cites as one item of unacceptable workplace 42 IBM Corp., 341 NLRB 1288, 1290 (2004). behavior the following: A second incident involved two fellow drivers. In that situa- tion, you were once again verbally abusive, confrontational, antagonistic, intimidating and very disrespectful according to the information given by these drivers. This incident referred to Serrano’s September 2003 exchange with two other drivers in which he criticized their refusal of his invitation to attend a union meeting, perhaps disparaged their intelligence, and traded profanities with one of them. Respon- dent contends that Serrano’s behavior to the two employees lost him the protection of the Act that he would otherwise have enjoyed in soliciting employees to participate in union meet- ings. The Board has stated that verbal abuse and profane lan- guage are not “an inherent part of Section 7 activity. [Citation omitted.]” Lutheran Heritage Village, 343 NLRB 646 (2004). The Board also recognizes that an employer may prohibit “abusive or threatening language” in a desire to maintain order and avoid liability for workplace harassment. An employer may not, however, exercise valid prohibitions so as to prohibit activity protected by Section 7. Ibid. The question of whether particular employee activity involving verbal abuse or profanity is protected by Section 7 turns on the specific facts of each case. See Atlantic Steel, 245 NLRB 814, 816 (1979) (employee’s use of abusive lan- guage may be unprotected depending on circumstances of case including nature of outburst); Key Food, 336 NLRB 111 (2001) (employee’s profane and abusive tirade not so unreasonable in relation to the employer’s provocation as to justify discharge); Chartwells Compass Group, USA, Inc., supra (employer may not lawfully discipline an employee for making prounion statements that merely make another employee feel uncomfortable.) The pertinent question here is whether Serrano’s Septem- ber 2003 conduct was so egregious as to forfeit the protec- tion of the Act. I find it was not. Serrano merely, and pro- tectedly, invited coworkers to attend a union meeting. When they declined, his animadversion on their characters was neither extensive nor threatening. Although Serrano used profanity, as did one of the invitees, record evidence suggests the use of profane language among Respondent’s drivers was commonplace and thus neither intrinsically in- timidating nor opprobrious. See Lutheran Heritage Village, supra at fn. 7. While duplicative solicitations of unwilling coworkers might have constituted harassment,43 Serrano did not persist in his invitation to the two employees or even repeat it. Accordingly, I find that Serrano’s September 2003 conduct was protected, that Respondent’s inclusion of that conduct in his warning notice violated Section 8(a)(1) of the Act,44 and that the General Counsel has made a prima 43 See Lutheran Heritage Village, supra at fn. 13. 44 Although the General Counsel did not specifically allege the in- clusion of this incident in Serrano’s warning notice as an independent violation of the Act, the issue is closely connected to the subject matter of the complaint and has been fully litigated. See Atlantic Veal & Lamb, Inc., supra. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1156 facie showing that Respondent violated the Act by warning and suspending Serrano on January 29. The burden of proof thus shifts to Respondent to establish persuasively by a preponder- ance of the evidence that it would have imposed the same dis- cipline without relying on the September 2003 incident. Even excluding the September 2003 incident, Serrano’s January 29 warning and suspension relied on cumulative mis- conduct, including a previous warning issued November 17, 2003, for “discourteous and abusive behavior towards a super- visor,” and “abusive, confrontational and antagonistic” behav- ior toward leadman Magana on January 26. The General Coun- sel does not contend that the November 2003 warning notice violated the Act. As for the latter incident, the specifics of Serrano’s January 26 confrontation with Magana are that he threatened Magana with implicit violence in front of other em- ployees in response to what Serrano perceived as Magana’s disrespectful finger-snapping manner of assigning him a task. The General Counsel does not contend, and I cannot find, that Magana’s direction to Serrano was given so insultingly and provocatively as to justify Serrano’s response. See, e.g., NLRB v. M & B Headwear Co., supra. Therefore, it is un- disputed that Serrano engaged in misconduct on both occa- sions. Respondent argues that it would have issued Serrano the warning and suspension based solely on his November 2003 and January 26 misconduct, as both related to disre- spect for and an undermining of Respondent’s authority in directing its employees. As noted above, it is well established the Board “cannot sub- stitute its judgment for that of the employer and decide what constitutes appropriate discipline.” Detroit Paneling Systems, Inc., supra, and cases cited therein. While trivial and insub- stantial misconduct resulting in discharge may raise a “strong inference of retaliatory motive,”45 Serrano’s No- vember 2003 and January 26 conduct cannot be considered either trivial or insubstantial. Each incident showed signifi- cant disrespect for employer authority, the latter involving potential workplace violence, a legitimate employer concern,46 minimalization of which could result in calamitous conse- quences. Given the undisputed evidence that Serrano com- mitted serious and similar infractions within a 2-month pe- riod, I find no basis on which to conclude Respondent would not have discharged him for those two infractions alone. See Amber Foods, Inc., 338 NLRB 712, 717 fn. 16 (2002). Accordingly, I find Respondent met its burden of showing Serrano’s discharge would have occurred even in the absence of his union activities and even in the absence of its unlawful inclusion of the September 2003 incident in his warn- ing notice. Respondent did not, therefore, violate Section 8(a)(3) of the Act by discharging Felipe Serrano. D. Suspension and Termination of Maria Zarco The General Counsel contends that Respondent, on January 13 and 22, respectively, suspended and terminated Zarco in violation of Section 8(a)(4) of the Act because she testified at a 45 Id. at 1171. 46 IBM Corp., supra. hearing before the Board. Section 8(a)(4) makes it unlawful to discharge or otherwise discriminate against an employee because she has filed charges or given testimony at a Board proceeding. A Wright Line analysis applies in 8(a)(4) cases. American Gardens Management Co., supra at 645. To reiterate, under Wright Line, the General Counsel must establish four elements by a preponderance of the evi- dence. First, the General Counsel must show the existence of activity protected by the Act. Second, the General Coun- sel must prove that the respondent was aware that the em- ployee had engaged in such activity. Third, the General Counsel must show that the alleged discriminatee suffered an adverse employment action, and finally the General Counsel must establish a motivational link, or nexus, be- tween the employee’s protected activity and the adverse employment action. American Gardens Management Co., id. Once the General Counsel has made the showings re- quired above, the burden shifts to the Respondent to prove that it would have discharged the employee even in the ab- sence of the protected conduct. In August 2003, Zarco testified extensively at an unfair labor practice and objections hearing arising from Local 37’s 2002 representation campaign and election among Respondent’s production and maintenance employees.47 Zarco was unques- tionably engaged in activity protected by the Act when she testified, which establishes the first element of the Wright Line analysis. Respondent was well aware of Zarco’s protected participation in the Board hearing, and that, coupled with Re- spondent’s January suspension and discharge of Zarco, answers Wright Line’s knowledge and adverse employment-action ele- ments. Thus, the General Counsel has met the first three ele- ments of the Wright Line burden. However, the evidence herein does not so easily satisfy Wright Line’s fourth element, i.e., that “the General Counsel must establish a motivational link, or nexus, between the employee’s protected activity and the adverse employment action.” American Gardens Man- agement Co., id. There is no evidence any supervisor or agent of Respondent ever expressed animosity toward Zarco for her August 2003 testimony against the Company.48 On January 13, the day fol- lowing Guadalupe Arteaga’s discharge, Magana, in the pres- ence of Supervisor Manuel Arteaga, essentially questioned Zarco as to whether she would rally to Guadalupe’s support.49 It is reasonable to infer that Magana and Manuel Arteaga had Zarco’s past willingness to testify against Respondent in mind when they sought to ascertain if she intended to support Guada- 47 The administrative law judge’s decision issued on December 2, 2003, generally discrediting Zarco’s testimony, but finding Respondent had violated Sec. 8(a)(1) and (3) of the Act and had engaged in objec- tionable conduct, requiring a new election. 48 Although counsel for the General Counsel presented some testi- mony that Respondent imposed more onerous work duties and condi- tions on Zarco after the 2003 hearing, the evidence was not well devel- oped, and I cannot draw any inferences of animus from it. 49 Manuel Arteaga’s silence during this exchange constitutes super- visory acquiescence in the questioning, which is thus chargeable to Respondent. INTERNATIONAL BAKING CO. & EARTHGRAINS 1157 lupe in his expected protest against his discharge, but there is nothing to suggest Respondent wished to retaliate against Zarco because of her past testimony. Moreover, while the questioning might arguably permit an inference of animus toward Zarco’s potential support of another employee in a dispute over his discharge, it cannot support an inference of animus toward Zarco’s past Board testimony. Accordingly, I find the General Counsel failed to meet his Wright Line burden of establishing a prima facie case that Respondent violated Section 8(a)(4) by suspending and terminating Zarco because she testified at a Board hearing. My finding that the General Counsel has not made a prima facie case of Section 8(a)(4) does not dispose of the allegations concerning Zarco’s suspension and discharge. The following questions remain: (1) Did Zarco’s action in preparing a letter for Guadalupe Arteaga regarding Arturo Arteaga’s conduct constitute protected concerted activity within the meaning of Section 8(a)(1) of the Act? and (2) If so, did Respondent sus- pend and terminate her because she did so?50 The Board has enunciated its “longstanding distinction” be- tween concerted activity and mutual aid or protection, both of which tests must be met in establishing Section 7 coverage. Holling Press, Inc., 343 NLRB 301, 302 (2004). In Holling Press, an employee of the company filed a claim of sexual harassment against her supervisor, then appealed to coworkers to give supportive evidence, for which she was fired. In dis- missing the complaint, the Board concluded the employee’s efforts to garner support, while concerted, were made only to advance her personal issue. The Board stated that the element of concertedness [i]nclude[s] “circumstances in which individual employees seek to initiate or to induce or to prepare for group action, [cit- ing Mushroom Transportation v. NLRB, 330 F.2d 683 (3d Cir. 1964)]” . . . and “activity which in its inception involves only a speaker and a listener, for such activity is an indispen- sable preliminary step to employee self-organization,” so long as what is being articulated goes beyond mere griping. [Cit- ing Meyers Industries, 281 NLRB 882 (1986).] The “mutual aid or protection” element, however, requires that the activity engaged in “benefit the group,” [not] advance [an employee’s] personal case . . . [and is shown when] the group of employees ha[ve] a common interest in the subject matter.” Holling Press, Inc., 343 NLRB at 303. Applying Holling Press, it is clear Guadalupe Arteaga was engaged in activity, which, though “concerted,” did not consti- tute “mutual aid or protection” when he solicited coworker statements in an effort to bolster his unlawful discharge claim. But it is not Guadalupe’s activity that is at issue but Zarco’s, and Holling Press does not answer the question of whether 50 Although the General Counsel did not allege Zarco’s suspension and termination independently violated Sec. 8(a)(1) of the Act, the employment actions were fully litigated, and Respondent would clearly have presented the same defense to an 8(a)(1) theory of violation as it did to the 8(a)(4) allegation. Accordingly, it is appropriate to consider whether Zarco’s suspension and termination independently violated Sec. 8(a)(1) of the Act. MEMC Electronic Materials, Inc., 342 NLRB 1172, 1178 (2004). employees who support another employee in an employment dispute are thereby engaged in concerted activity for mutual aid or protection. The Board has, however, had occasion to rule on analogous activity. In Cadbury Beverages, Inc.,51 one em- ployee cautioned another against representation by an as- sertedly untrustworthy individual. The Board concluded that the employee’s caution constituted protected concerted ac- tivities on behalf of another employee, and the employer violated Section 8(a)(1) of the Act by suspending him be- cause of it. Extending Cadbury to Zorca’s situation, I find that when she wrote a supportive letter for Guadalupe Arteaga, she engaged in concerted activity in aid and protec- tion of a fellow employee, thus meeting both requirements of Section 7 coverage. Adverse employment action taken to quell or to interfere with her protected activity would consti- tute a violation of Section 8(a)(1) of the Act. Having determined that Zarco’s action in preparing a letter for Guadalupe Arteaga regarding his supervisor’s conduct con- stituted concerted, protected activity within the meaning of Section 8(a)(1) of the Act, it remains to determine whether Respondent suspended and terminated Zarco because she en- gaged in the protected concerted activity. Respondent contends it did not terminate Zarco because of any protected activity. Rather, Respondent argues, it did so in compliance with the requirements of the Immigration Reform and Control Act of 1986 (IRCA), upon suspecting, in good faith, that Zarco’s work permit was based on false information. IRCA’s prohibitions have been enunciated by the Supreme Court: [I]f an employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the em- ployer is compelled to discharge the worker upon discov- ery of the worker’s undocumented status. § 1324a(a)(2). Employers who violate IRCA are punished by civil fines, 1324a(e)(4)(A), and may be subject to criminal prosecu- tion, 1324a(f)(1). IRCA also makes it a crime for an unau- thorized alien to subvert the employer verification system by tendering fraudulent documents. 1324c(a). It thus prohibits aliens from using or attempting to use “any forged, counterfeit, altered, or falsely made document” or “any document lawfully issued to or with respect to a per- son other than the possessor” for purposes of obtaining employment in the United States. §§ 1324c(a)(1)–(3). Aliens who use or attempt to use such documents are sub- ject to fines and criminal prosecution. 18 U.S.C. § 1546(b).52 Clearly, Respondent was responsible for seeing that Zarco possessed acceptable documentation of authorization for em- ployment in the United States. Whether Respondent was re- 51 324 NLRB 1213 (1997), enfd. 333 U.S. App. D.C. 94 (D.C. Cir. 1998). 52 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 145 (2002); see also Collins Food International v. U.S. Immigration & Naturalization Service, 948 F.2d 549 (9th Cir. 1991); and Mester Mfg. Co., v. I.N.S., 879 F.2d 561 (9th Cir. 1989). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1158 quired to act upon its suspicion that Zarco’s documentation (which had passed INS muster) was premised on inaccurate information is not so clear. Counsel for the General Counsel argues Respondent bore no such responsibility, pointing out that INS regulations “expressly allow Employers to rely on documents which on their face appear to be valid and relate to the person for whom they are issued”53 and that Elioff “never thought [Zarco’s work permit] was a fake document.” In short, counsel for the General Counsel appears to assert that Respon- dent is not only justified in turning a blind eye to possible documentation fraud but that Respondent’s failure to do so signals pretextuality. Respondent, on the other hand, contends that “[o]nce Maria Zarco . . . informed [Respondent] that she was not lawfully authorized to work in the United States, be- cause she had ‘fixed’ her paperwork, it had no choice but to terminate her or allow her to resign.” Respondent offers no authority for this broad assertion, and its legal validity may be questionable. However, given the statutory and case authority regarding an employer’s burden of compliance under IRCA, I find it was not unreasonable for Elioff, and presumably Re- spondent’s corporate counsel whom she consulted, to conclude the company might risk civil and/or criminal liability by retain- ing an employee who they believed had deceptively obtained work authorization. My finding that Respondent’s concern with Zarco’s immi- gration status was not so inconsequential as to constitute pre- textuality does not, of course, end the inquiry. It remains to determine whether Respondent’s suspension and termination of Zarco was motivated by validly held concerns or whether Re- spondent seized on suspected documentation improprieties to rid itself of an individual whose protected activity it disliked. As the Board, quoting J. P. Stevens & Co. v. NLRB, 638 F.2d 676, 681 (4th Cir. 1981), noted, “the mere presence of legitimate business reasons for disciplining or discharging an employee does not automatically preclude the finding of discrimination.” KOFY TV-20, 332 NLRB 771, 772 (2000). I have found that Elioff did not, as claimed, tell Zarco on January 13, that people who helped Guadalupe were going to end up in trouble. A direct threat is not, of course, the only method of proving that adverse employment action is unlawful. The timing of Elioff’s meeting with Zarco, coming as it did almost immediately after Magana, in the presence of Manuel Arteaga, questioned Zarco about whether she would support Guadalupe Arteaga, creates at least a remote suspicion that Respondent’s ensuing suspension and termination of Zarco was unlawfully motivated. However, a number of facts militate against such a conclusion. First, there is no evidence anyone reported to Elioff the substance of Magana and Manuel Arteaga’s conversation with Zarco, and Zarco gave Elioff no indication she planned to write a letter for Guadalupe. Second, there is no evidence that Respondent bore animosity toward employee support of Guadalupe. Third, there is no evidence that Elioff deviated from normal practice in reviewing Zarco’s work documentation. While Dominguez may have, inadver- tently or otherwise, overlooked a discrepancy between the 53 Citing Handbook for Employers Instructions for Completing Form I-9 (Employment Verification Form), p. 8. country of origin identified on Zarco’s work permit and the one tacitly acknowledged in the workplace, there is no showing Elioff ever did so. Fourth, there is no evidence Elioff ever accommodated or overlooked any work permit inconsistency, so as to permit an inference that she treated Zarco disparately. Fifth, Elioff gave Zarco ample time to rectify any misunder- standing about her work permit or to verify its accuracy, which is inconsistent with a “rush to judgment” that can herald ani- mus.54 Upon Elioff’s inquiry into the accuracy of her work permit, Zarco did little to alleviate Elioff’s concerns. The General Counsel argues, essentially, that Respondent’s failure to take steps to ascertain the accuracy of Zarco’s work permit demon- strates animus.55 I cannot agree. Respondent had no duty to establish the validity of Zarco’s work permit; that burden, as well as access to authenticating information, belonged to Zarco. Since Zarco knew Elioff doubted Guatemala was her country of origin, it is reasonable to expect Zarco would have explored the issue with Elioff immediately or at least defended the veracity of the permit if she believed it to be accurate. Elioff gave Zarco a week to straighten out the perceived “error” in her work permit. There was nothing to prevent Zarco from present- ing substantiating evidence to Elioff to establish that no error existed in the work permit. Zarco did not do so. Rather she obtained a letter from Salas that did not address the accuracy of the information. Even after Elioff declined to accept Salas’ letter as resolving the problem, she gave Zarco additional time to resolve the problem, which Zarco did not utilize. Zarco’s unresponsiveness in the face of a patent threat to her employ- ment could rationally be viewed by Respondent as confirmation that a problem with the work permit existed. In light of Re- spondent’s reasonable belief that the integrity of Zarco’s docu- mentation was compromised, it is irrelevant that, as counsel for the General Counsel points out, Zarco’s 10-year performance record is unblemished. While such evidence may counterbal- ance alleged misconduct, it is unavailing as a defense to im- proper alien work authorization documentation. In sum, the evidence compels a conclusion that Respondent suspended and thereafter terminated Zarco because of per- ceived inaccuracy in her work permit and not because she en- gaged in protected concerted activity. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by (a) Interrogating employees about their or other employees’ protected concerted activities. (b) Asking employees to report to management the protected concerted activities of other employees. (c) Creating the impression of surveillance of employees’ 54 See Caesar’s Atlantic City, 344 NLRB 984 (2005). 55 Actions the General Counsel suggests Respondent should have taken include contacting the BCIS, asking Zarco for documents such as birth certificate or passport, and inquiring into family relationships. INTERNATIONAL BAKING CO. & EARTHGRAINS 1159 union activities. (d) Impliedly threatening employees with reprisals if they continue to engage in union or other protected activities. (e) Equating voting for the Union with disloyalty to Respon- dent. (f) Warning an employee not to invite other employees to a union meeting. (g) Attributing possible outsourcing of work to employees’ union or other protected concerted activities. (h) Impliedly promising to continue a flexible discipline pol- icy if employees reject the Union. (i) Impliedly threatening employees with a strict discipline policy if employees select the Union. 4. The unfair labor practices set forth above affect com- merce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]