Carl'S Jr.

CARL'S JR 975 C. K. E. Enterprises d/b/a Carl's Jr. and Hotel Em- ployees and Restaurant Employees Union, Local 11, Hotel Employees and Restaurant Employees International Union, AFL-CIO and Federico A. Rodriguez. Cases 21-CA-23062, 21-CA-23814, 21-RC-17377, and 21-CA-23469 22 September 1987, DECISION, ORDER, AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 27 March 1986 Administrative Law Judge Joan Wieder issued the attached decision. The Re- spondent and the General Counsel filed exceptions and supporting briefs, and the Respondent filed a brief in opposition to the General Counsel's excep- tions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and i The Respondent has excepted to some of the judge 's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cit. 1951) We have carefully examined the record and find no basis for reversing the findings The judge erred in stating that none of the leadpersons' union sympa- thies was known to the employees. Earlier in her decision, the judge stated that leadperson Sandoval urged employees to vote for the Union. This error, however, does not require reversal of the judge's 8(a)(1) find- ings Sandoval's statements that the restaurant would close , the Immigra- tion and Naturalization Service would be called, and prounion employees would be terminated if the Union won the election were made at the di- rection of the Respondent 's agents, whose- goal was to gain support among the employees for the Respondent's antiunion position Cf Paints- ville Hospital Co., 278 NLRB 724 (1986) (no 8(a)(1) violation through prounion supervisor's advising against wearing union buttons and warn- ing about alleged management antiunion retaliation when employees had reason to know supervisors were ,making the statements on their own ini- tiative in order to protect the union campaign) The judge also erred in stating that Personnel Supervisor Ruppel indi- cated that Najarro was discharged because of his union activity. The record indicates that Assistant Managar Maldonado made this connec- tion Finally, the Respondent is correct that the conversation between Bon- illa and Esquivel , in which Esquivel threatened closure of the store if the Union won the election, took place in late March or early April, not 23 April as alleged in the complaint Contrary to the Respondent 's conten- tion, however, the inaccuracy of the complaint in fixing the date of this conversation and the General Counsel's failure to move to conform the complaint to Bonilla 's testimony (on which the finding of the threat was based) does not warrant reversal of the judge 's finding of a violation re- garding this threat The Respondent had notice that Esquivel 's statement would be litigated as a violation of Sec 8(a)(1) because the complaint specifically alleges that Esquivel threatened to close the store if the Union prevailed Further, the Respondent does not argue that it was pre- cluded from adducing any exculpatory facts or that it would have altered its presentation of the case in any manner had an earlier date been speci- fied Accordingly, we find no merit to the Respondent's contention be- cause the issue was fully litigated and all the operative facts underlying the finding of the 8(a)(1) violation are present in the record Baytown Sun, 255 NLRB 154 (1981) conclusions2 and 'to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, C. K. E. Enterprises d/b/a Carl's Jr., Los Angeles, Califor- nia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that Case 21-RC-17337 is severed from Cases 21-CA-23062, 21-CA--23814, and 21-CA-23469; that the Respondent's objection to the election in Case 21-RC-17377 is overruled; and that the Petitioner's Objections 1, 3, 4, and 7 are sustained. DIRECTION It is directed that the challenges to the ballots of Olivia Flores, Juan Solorzano, and Luis Najarro are overruled and that their ballots should be opened and counted and a revised tally of ballots should issue. In the event the revised tally shows that a majority of the valid votes were cast for the Petitioner, a certification of representative shall be issued; if the tally shows that a majority of the valid votes were not' cast for the Petitioner, then The judge erroneously found that Guizar spoke with employees on election day and urged that they vote against the Union The record indi- cates that the Respondent directed Guizar to talk to employees on elec- tion day and tell them to vote against the Union, but there is no evidence that Guizar carried out these orders Similarly, the evidence does not establish, as the judge found, that Es- quivel threatened to terminate employees who did not assist the Respond- ent in its antiunion campaign Neither of these errors affect the Order recommended by the judge. The Respondent has excepted to the judge's finding about the appro- priateness of the unit In the representation case proceeding, the parties stipulated to the unit as found by the judge, which specifically excludes leadpersons. The Respondent now argues, however, that it entered into that stipulation based on its belief that the leadpersons were supervisors within the meaning of Sec 2(11) of,the Act As the judge has now deter- mined that the leadpersons are not supervisors, the Respondent maintains that the election stipulation is not controlling and the Board must deter- mine the appropriateness of the bargaining unit We disagree It is well-settled law in stipulated unit election cases that the Board's function is to ascertain the parties' intent regarding the disputed employ- ees and then to determine whether such intent is inconsistent with any statutory provision or established Board policy Tribune Co., 190 NLRB 398, 399 (1971), Viacom Cablevision, 268 NLRB 633 (1984). Here, the intent of the parties as expressed in their stipulation of the appropriate bargaining unit is in clear and unambiguous terms. Without qualification, the stipulation excludes "leadpersons " As noted, that intent should be given recognition unless the result is inconsistent with the Act or Board policy. A/Z Electric, 282 NLRB 356 (1986); Cruts Along Boats, 128 NLRB 1019 (1960). The Respondent has not produced, nor does the record otherwise reveal, any evidence that would demonstrate that the exclusion of leadpersons from the unit, even if, as here, they are found to be statutory employees, is inconsistent with the Act or Board policy Ac- cordingly, in agreement with the judge, we find the stipulated unit to be an appropriate one z Under Conclusions of Law 7 and 8, the judge states that the chal- lenges to Najarro's, Solorzano's, and Guizar's ballots should be overruled and the'ballots opened and counted The judge obviously was referring to the ballots of Najarro, Solorzano, and Flores - 285 NLRB No. 126 976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ,the election shall be set aside and a second election by secret ballot shall be held among the employees in the unit found appropriate. The Regional Direc- tor shall direct and supervise the election, subject to the Board's Rules and Regulations. Eligible to vote are those employed during the payroll period ending immediately before the date of the, Notice of Second Election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike that began less than 12 months before the election date and who retained their employee status during the eligibility period and their replacements. Those in the military services may vote if they appear in person at the polls. Ineligible to vote are employees who have quit or been discharged for cause since the payroll period, striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before, the election date, and employees engaged in an economic strike that began more than 12 months before the election date and who have been, perma- nently replaced. Those eligible shall vote, whether they desire to be represented for collective bargain- ing by the Hotel Employees and Restaurant Em- ployees Union, Local 11, Hotel Employees and Restaurant Employees International Union, AFL- CIO. Joel Martinez, Esq., for the General Counsel. Kenneth E. Ristau Jr., Esq. (Gibson, Dunn & Crutcher), of Newport Beach, California, for the Respondent. Charles Y. Bahr, Esq., of Anaheim, California, for the Respondent. Gordon K. Hubel, Esq. (Levy, Ansell &'Goldman), of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge. These con- solidated cases were tried in Los Angeles, California, on various dates in July, August, and September 1985.1 In the unfair labor practice cases the original charge in Case 21-CA-23062 was filed by Hotel Employees and Restau- rant Employees Union, Local 11, Hotel Employees and Restaurant Employees International Union, AFL-CIO (Union) on 16 March and amended on 16 April. The charge in Case 21-CA-23814 was filed by the Union on 25 March. The original charge in Case 21-CA-23469 was filed by Federico A. Rodriquez, an individual, on 2 October and amended on 17 December, The initial com- plaint issued in these proceedings was dated 29 June and amended 21 September. A second order consolidating cases and amending the complaint issued 4 January 1985. The third order consolidating cases and amending the i All dates are in 1984 unless otherwise stated complaint issued 22' May 1985. The third amended com- plaint alleges that C. K. E. Enterprises d/b/a Carl's Jr. (Carl's Company or Respondent) engaged in more than 60 violations of Section 8(a)(1) of the National Labor Relations Act, and five violations of Section 8(a)(3) of the Act. On 26 April, pursuant to a Stipulation for Certification Upon Consent Election, a Board-conducted election was held among the employees in the following bargaining unit: All regular full-time and -part-time counter service employees, bus persons and cooks employed by the employer at 700 West Seventh Street, Los Angeles, California; excluding all other employees, managers, manager trainees,' manager candidates, lead persons, confidential employees, guards and supervisors, as defined in the Act.2 - The election results are as follows: there were about 28 eligible voters with 11 voting for the Union and 11 bal- lots cast against the Union; there were no void - ballots and 4 challenged ballots. One ballot was challenged by the Union, one by Carl's, and two by,the Board agent. On 2 May Carl's filed objections to the election. On 3 May the Union filed objections to the election. The ob- jections were timely filed. On 22 August the Acting Re- gional Director for Region 21 issued a report on chal- lenged ballots and objections counting one ballot and re- ferring the three remaining challenged ballots for deter- mination. Specifically, the ballot of Olivia Flores was challenged by the Union, which claimed she 'is a leadper- son and not eligible to vote; and, the ballots of Juan An- tonio Solorzano and Luis Regelio Najarro were chal- lenged by the Board agent because their names did not appear on the eligibility list of voters and they are named as discriminatees in the unfair labor practice proceedings. The Regional Director ordered a hearing on these chal- lenged ballots and certain of the objections of the-Union and Respondent in conjunction with the unfair labor practices alleged in the complaint. The Respondent filed a timely answer to the third amended consolidated complaint admitting certain ' allega- tions, but denying the substance of allegations asserting that it did not commit any unfair labor practice. All parties appeared at the hearing, were afforded full opportunity to participate, to introduce relevant evi- dence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been careful- ly considered, were filed on behalf of the General Coun- sel and Respondent. On the entire record, and from my observation of the witnesses and their demeanor, and on substantial, reliable evidence considered along with the consistency and, in- herent probabilities of the testimony," I make the follow- - 2 It is undisputed, and I find, that the stated unit constitutes an appro- priate unit for purposes of collective bargaining within the meaning of Sec, 9(b) of the Act § See generally Universal Camera Corp Y NLRB, 240 U S- 474, 496 (1951) CARL'S JR, 977 FINDINGS OF FACT 1. JURISDICTION The Respondent is a California corporation which op- erates a chain of restaurants and at all times material has engaged in that business with a facility located at 700 West Seventh Street, Los Angeles, California. The par- ties admit and I find that during the past 12-month period, Respondent, in the normal course and conduct of its business operations has received gross revenues in excess of $500,000 and has purchased and received goods valued in excess of $50,000 directly from suppliers locat- ed outside the State of California and thus Carl's is en- gaged in commerce within the meaning of the Act, and assertion of jurisdiction over its operations will effectuate the policies of the Act. The parties stipulated and I find that the Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES AND OBJECTIONS CONDUCT A. Background Carl's operates a chain of about 380 to 400 fast food restaurants. This proceeding involves only one of these restaurants that is located at 700 West Seventh Street, Los Angeles and designated by Respondent as Store 100 (the ' Store or Store 100). This restaurant , along with five others in downtown Los Angeles, was under the overall supervision of Ronald Paullins at all times pertinent.4 Store 100 is larger than most of the restaurants in the Carl's chain. It has a main counter with 18 cash registers where orders for various food items are placed . It also has an area called the Country Store that sells hot dogs and nachos. These items are not sold at ` all Carl's. The Country Store is about 100 yards from the main counter. The Store has a second floor where the manager 's office, training area, break area, and changing rooms are locat- ed. Paullins maintains a desk in the manager's office. The office is locked at all times because that is where the money is counted. For several years Store 100 was managed by Henry Clemens. In February Clemens was transferred and he 4 The parties stipulated ihat the following individuals occupied the designated positions and were supervisors and agents of Respondent as defined in the Act Ronald Paullins District Manager Kenneth M . McGuire Manager Raul Esquivel Manager Jeannette Segovia Assistant Manager Rafique Philipos Assistant Manager Ivel Daniels Assistant Manager Michael Guerrera Assistant Manager Caridad Voohies Assistant Manager Ron Lemons Assistant Manager Jaime Martinez Assistant Manager Ward Ruppel Supervisor Hugo Maldonado Lead/Asst. Manager Modesto Alas Assistant Manager was, replaced by ' McGuire. s McGuire testified, without contradiction, that he was instructed to "have the store hit profit and hit budget and to clean up the security problems." After he assumed the manager's position he discovered that the Store's paperwork was not up to date, including periodic reviews necessary for emloyees to receive longevity raises. McGuire embarked on a pro- gram of bringing the paperwork up to date and granting the deserved raises. McGuire also stated that he found his predecessor was lax in enforcing several of the Company's policies. For example, the Company had two discount policies for em- ployees. One of these involved a 20-percent discount that ,was given to certain qualified employees; 6 at specified times the Company issued 20-percent discount cards to all eligible employees. In order to get the discount, the employees would have to show their 20-percent discount card. The cashier was obligated to request presentation of the card before ringing up the order and recording the discounted purchase in the computerized cash register system. Not all employees at Store 100 showed their 20- percent discount card at the time they made discount purchases. Another breach of policy he observed in- volved the consumption of beverages during worktime. According to McGuire, the employees received free soda and iced tea during breaks' only. Store 100 employ- ees were consuming beverages all day. McGuire met with both employees and'supervisors to inform them8 he was going to strictly follow company policy. McGuire started using to a greater degree the Compa- ny's system of progressive discipline.9 Clemens, for ex- ample, did not record verbal warnings as required. McGuire had a yellow binder which was kept behind the counter where all verbal warnings were recorded. The employees were not shown these records. 10 About the same time or shortly after McGuire became manager of Store 100, a competitor, Pioneer Chicken, opened a store nearby. i i The new competition resulted s The parties stipulated McGuire was the store manager from 25 Feb- ruary to 27 March R Exh . 29 indicates that McGuire was manager of the Store on 10 February 6 The testimony did not clearly describe the qualifications, whether total hours worked or numbers of months employed was the qualifying factor. ' Full-time employees received two 10-minute breaks and one-half hour lunchbreak a day s At this time there were about 8 assistant managers, 7 leadpersons, 10 to 18 busboys, 18 to 20 cashiers, and 8 to 1l cooks; plus weekend em- ployees. 9 According to McGuire's uncontradicted testimony, verbal warnings were issued by supervisors as a corrective measure when the infraction was not considered to be very severe and it was an initial breach of policy Some initial offenses such as thefts are subject to immediate termi- nation (as discussed below regarding Solorzano 's discharge) If the verbal warning does not result in resolution of the problem the employee is given a written warning and notified that they could be terminated if they did not improve . A second written warning could be issued if the problem persisted, which could result in up to a 3-day suspension or ter- mination The manager , according to McGuire, is given broad discretion in determining discipline 10 Employees were shown written warnings and requested but not re- quired to sign them to reflect that they received the warning 11 The exact date of the opening of this restaurant is not a matter of record 978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in a temporary loss of business and McGuire was direct- ed to reduce the employees ' work hours. The employees, many of whom were Hispanic, i z including ' some lead- men, were unhappy with McGuire's actions and they sought assistance from a Hispanic organization13 which, directed them to the Union. The employees attended two or three union meetings and Solorzano distributed ap- proximately 30 to 32 cards. Two other alleged discrimin- atees were also attendees at the union meetings, Griselda Guizar and Luis Najarro. Hugo Maldonado, a leadman, attended the first union meeting. The Union filed a peti- tion for an election in Case 21 -RC-17377 on 1 March 1984. None of Respondent's stores are unionized. Respondent, on learning of the petition , initiated an in- quiry into the genesis of the union organizing campaign. Paullins, the day after McGuire learned of the organizing campaign, instructed McGuire not to deal with the union matter, just run the store, and check with Paullins re- garding some types of discipline . 14 Respondent then in- stituted a "vote no" campaign and started holding meet- ings with all assistant managers and leadpersons. McGuire did not attend any of these meetings . Around the end of March, McGuire was transferred and replaced by Paul Esquivel. Paullins reluctantly admitted that one of the reasons McGuire was transferred was because he was considered the cause of the union organizing cam- paign.15 Esquivel, prior to his employment with Carl's, worked as a district manager for another fast food chain, and owned his own restaurant . He is bilingual. Carl's hired him as a manager candidate in June 1983, and he was a manager for a few months at another store before being transferred to Store 100. He was not told of the union organizing campaign prior to his transfer to Store 100. He had previously worked at Store 100 for about 7 weeks as a manager-trainee. On his transfer to the Store, he participated in the Company's meetings with the as- sistant supervisors and leadpersons as did Paullins and an individual named Ward Ruppel.16 Esquivel could not recall the date he started work at Store 100 and Re- spondent did not provide any documentation to establish the date. 12 Most of the employee witnesses were from El Salvador is Apparently there was a coalition for Hispanic workers named Casa Del Obrero that has a representative named Nicolas He was first con- sulted by Juan Solorzano and Marcos Bcndla and directed them to the Union Juan Solorzano is an alleged discrimmatee 14 McGuire was inconsistent and unclear in his testimony on this point Initially he testified Paullins' instructions were to not do anything with- out checking with him Later, he modified his testimony, claiming he only had to check with Paullins about terminations, not other types of 'discipline 15 At first Paulhns testified that McGuire was transferred because he was unable to communicate with the Spanish-speaking employees while ,Esquivel was bilingual Then he failed to reply directly when asked if several people complained about McGuire being the cause of the union campaign When pressed, he admitted some said he was the cause of the union organizing campaign. Then, after initially balking, he admitted that the employees' complaints were a consideration in the decision to remove McGuire (Tr 1390) 16 Ruppel did not appear to testify His absence was unexplained. Leadpersons as Supervisors B. Supervisory Status of Leadpersons Respondent contends that the leadpersons attended the meetings ' because they were supervisors. The General Counsel and Charging Party claim that leadpersons are not supervisors; however, the complaint does allege that Leadmen Luis de Jesus Sandoval, Miguel A . Revelorio, and Mario Mendoza were agents of Respondent within the meaning of'Section 2(2) and (13) of the Act. Section 2(11) of the Act describes the term "supervi- sor" as including: [A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or disci- pline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but- requires the use of independent judgment. This section is to be read in the disjunctive; possession of any one of the enumerated powers establishes superviso- ry status. Eastern Greyhound Lines v. NLRB, 337 F,2d 84, 87 (6th Cir. 1964). The burden of proof rests on the party making the allegation that supervisory status exists. Tucson Gas Co., 241 NLRB 181 (1979), and cases cited therein. In this case, the company bears that burden.-Cf. Commercial Movers, 240 NLRB 288, 290 (1979). In estab- lishing supervisory status, it must be demonstrated that the leadpersons perform one or more of the enumerated functions with independent judgment; not in a routine of clerical manner. Walla Walla Union-Bulletin v. NLRB, 631 F.2d 609, 613 (9th Cir. 1980); NLRB v. Security Guard Service, 384 F.2d 143, 147 (5th Cir. 1967). NLRB v. Harmon Industries, 565 F.2d 1047, 1049 (8th Cir. 1977), Isolated and infrequent incidents of supervision does not render an employee a supervisor . NLRB v. Doctors' Hos- pital of Modesto, 489 F.2d 772, 776 (6th Cir. 1973). As stated in Bay-Area-Los Angeles Express, 275 NLRB 1063, 1073 (1985): "Finally, the Board, in interpreting Section 2(11) has been instructed that `[i]t is important for the Board not to construe supervisory status too broadly, for a worker who is deemed a supervisor loses his organiza- tional rights.' McDonald Douglas Corp. v. NLRB, 65,5 F.2d 932 (9th Cir. 1981); accord: Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (7th Cir. 1970). ('The Board has a duty to employees to be alert not to construe supervisory status too broadly because the em- ployee who is deemed a supervisor is denied employee rights which the Act is intended to protect.') Warner Co. v. NLRB, 365 F.2d 435, 437 (3d Cir . 1966)." I find that while there is evidence that leadpersons exercise some authority in carrying out their duties, the employer has failed to demonstrate by a preponderance of the evi- dence that they possessed the necessary authority and employed independent judgment in exercising that au- thority. Respondent employs cooks, cashiers, and busboys„ under the classification of counterpersons . These employ- CARL'S JR. ees are paid an hourly wage in accordance with a scale that provides for longevity and other increases . Respond- ent established the category of leadperson sometime after 1978. Leadpersons are also paid an hourly rate in accord- ance with an established schedule. When a counterperson becomes a leadperson, he/she is given a raise of 15 to 20 cents per hour, The slightly higher hourly pay rate is in- adequate to establish supervisory status. Alamo Cement Co., 277 NLRB 1031 (1986). The leadpersons in Store 100 did not receive formal training, and there were no manuals or other documents placed into evidence that were indicative that leadper- sons were supervisors. Understandably, McGuire, with- out any corroboration, testified that he held weekly meetings with his assistant- managers and leadpersons. McGuire's testimony is not credited. Esquivel, interest- ingly, twice testified that he had regular supervisory meetings with only assistant managers ; 17 and only later, after several recesses, did he testify that leadpersons at- tended meetings for supervisors . Esquivel's initial testi- mony was visably more candid on this point and is cred- ited. The established practice of Clemens, who was the manager prior to McGuire , is not a matter of record. It is improbable that McGuire met with leadpersons and as- sistant managers regularly since, as discussed in more detail below, the advent of the organizing campaign led Respondent to implement a "vote no" campaign which included holding daily meetings with all assistant manag- ers and leadpersons . No one testified that they attended two meetings in 1 day, one with McGuire and the other with Ward Ruppel.' s The leadpersons that testified did not assert that they, at anytime other than during the company campaign, attended "supervisory meetings" with the assistant managers, no less routinely. To the contrary, two leadpersons, Sandoval and Guizar, testified that these supervisory meetings concerning matters other than the union organizing campaign were attended by as- sistant managers only. McGuire's assertion that leadpersons could issue warn- ings, effectively recommend individuals be hired or fired; give orders during the workday; and , exercise all super- visory powers on the floor is also not credited . Initially, the statement that they had all supervisory powers on the floor contradicts his testimony that leadpersons could not fire employees. Not one leadperson or other witness testified leadpersons could terminate employees and Re- spondent appears to admit this finding on brief. Mario Mendoza, a leadperson at all times pertinent, testified he interviewed job applicants and effectively recommended their hire. Mendoza's testimony was con- fusing. Although bilingual, he chose to testify in Spanish, which may account in small measure for the lack of clar- ity. However, most of the confusion is found to stem from a conscious attempt to tailor his testimony so it was cast in a light favorable to Respondent's case. For exam- ple, he initially testified he interviewed job applicants, when cross-examined closely, he described his activities 17 Tr. 1852 and 2025 is Ruppel was placed in charge of the Company's campaign and at- tended all meetings held with store personnel in furtherance of that cam- paign. 979 as 'acting as interp reter, translating the application form and otherwise assisting Spanish-speaking job applicants to complete the form.19 Also, Mendoza indicated that at least one applicant had already been recommended by Hernandez, an assistant manager . This makes Mendoza's later description of his actions as serving as an introduc- tory explanation to new hires of their job duties more probable. This conclusion is buttressed by the testimony of Esquivel and Segovia that they interviewed and hired all job applicants.20 Further, Mendoza admitted that he never asked job applicants what skills they possessed. This admission against interest also requires a finding that leadpersons could not and did not hire, This conclu- sion is buttressed by the Company's own manual that de- scribes the duties of leadpersons as possessing limited au- thority that does not require the use of independent judg- ment. a 1 19 Mendoza's testimony was replete with inconsistencies One example is that he testified the first employee he interviewed was during Clemens' tenure as manager When asked to describe the interview , he stated that Esquivel as manager brought the applicant to him for Mendoza to explain the various job duties assigned to the counterpersons Although Esquivel and Mendoza claimed that after the election, the interviewer was request- ed to sign an evaluation, no such evaluation was introduced into evi- dence Further, Mendoza claims he interviewed Palma . Segovia testified she interviewed and hired Palma Palma corroborated Segovia Mendoza admitted he had poor recall It is noted that although the parties invoked the sequestration rule, Mendoza sat in the courtroom by mutual agree- ment as Respondent's interpreter It was stipulated that he was paid his normal wages for this activity. 20 While Esquivel said he interviewed all job applicants, he also had Segovia and a third individual , either a leadperson or assistant manager, interview the applicant. No one corroborated this claim that is found to be self-serving Segovia testified that she interviewed-Palma and she de- cided to hire him There were no leadpersons , save for Mendoza's con- fused testimony, who testified they interviewed job applicants, To the contrary, Guizar, Bonilla, and Sandoval all testified they never hired anyone Based on demeanor, their testimony is credited . Sandoval and Guizar are former employees and former leadpersons Bonilla is a current employee who is a leadman Esquivel testified that interviewers are re- quired to fill out and sign interview sheets None were introduced into evidence I assume that there were none executed by leadpersons Final- ly, when asked if Mendoza had authority to hire, Esquivel avoided di- rectly answering the question and replied it would be by mutual agree- ment. This failure to directly answer the question further discredits his testimony 21 The Company's personnel manual lists the leadpersons' specific re- sponsibilities as follows 1 Directs activities of Counter Personnel in a limited area (i e, front/back line) so that all work is performed as efficiently as possi- ble and service times are met and sales money is kept track of 2 Trains and cross trains Counter Personnel to meet the needs of the unit and the employee. 3 Inspects portions , product rotation and holding times on the line so that food quality standards are maintained 4 Assigns extra duties to Counter Personnel to maintain service, productivity and cleanliness standards under the guidance of the person in charge 5 Inspects inventory for proper rotation and storage to insure product quality 6 Supervises and participates in opening or closing procedures so that products and equipment are correctly handled. 7 Instructs Counter Personnel on proper work safety, and proper handling of equipment Reports any equipment failures to the person in charge. 8 Fills out the position chart so that all work is performed as ef- fectively as possible and has the chart approved. 9 Consults with person in charge of assigning breaks to comply with unit policy, labor laws and productivity Continued 980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A leadperson may have effectively recommended that an individual be hired; but Esquivel admitted that coun- terpersons also effectively recommended that individuals be hired.22 Esquivel interviewed job applicants except for one day when he was on vacation. He indicated he independently scrutinized the applicant rather than ac- cepting the appraisal of a leadperson. Thus, even view- ing the evidence in a light most favorable to Respondent, it does not establish supervisory status. McEver Engineer- ing, 275 NLRB 921 (1985). The record fails to demonstrate that leadpersons could discipline or effectively recommend discipline. Although several leadpersons, including Mendoza and Ricardo Maldonado, testified they could discipline employees, there was no' persuasive evidence- that they could issue either written or verbal warnings or effectively recom- mend their issuance. There was no documentary' evi- dence of a warning issued by a leadperson. Mendoza did say he issued a written warning to Salvador Cubillas for being late. Mendoza brought the infraction to Esquivel's attention. Esquivel apparently decided on the discipline and Hernandez,,an assistant manager, filled out the warn- ing notice for him. Mendoza, Esquival, and Cubillas signed the warning. The General Counsel's Exhibit 4 is a warning issued to Solorzano signed by a leadperson, Joanne Carini, and McGuire. McGuire admitted he made the decision to issue the warning, after being informed by Carini of an asserted violation of established company policy. McGuire said he would investigate the allegation and did conduct an investigation. It was McGuire that directed Carini to document the incident on the employ- ee conference form (warning notice), after he prepared the first portion of the document, a statement of policy. There was no showing that Mendoza's and Carini's ac- tions of bringing infractions of established policies to the attention of a manager required the use of independent judgment. In fact there was no showing that either Men- doza or Carim23 actually recommended discipline rather than just reporting violations of established guidelines. Thus, it is concluded that the record does not warrant a finding that leadpersons have authority to discipline or effectively recommend discipline of employees, See Fer- alloy West Co., 277 NLRB 1083, and cases cited therein. The record is also devoid of any probative evidence that leadpersons can grant or effectively recommend raises, promotions, layoffs, recalls, suspensions, rewards, assignments, change working conditions, or adjust griev- ances. All the leadpersons who testified indicated with- out contradiction that they could not grant time off and that if any employee wished to leave early, an assistant 10 Counts and posts product waste to help provide inventory ac- countability 11 Sees that each guest's needs are taken care of in a helpful friendly and concerned manner. 22 Esquivel's attempts to discount this admission by claiming that lead- persons recommended individuals be hired more frequently is deemed un- persuasive and ineffective No documents or other reliable indicia of lead- persons having more influence in the hiring decision was proffered San- doval testified that his recommendations while he was a leadperson that employees be hired had similar effect as his one recommendation, when he was a cook that an individual be hired 23 Carmi did not appear and testify Respondent did not explain her absence manager had to authorize the action. Mendoza, who after 3 p.m. was a leadperson without an assistant manag- er on the dining room floor, admitted that if an employee wished to leave early he had to first consult an assistant manager and that only an assistant manager could au- thorize the early departure. Sandoval explained that he once brought to Esquivel's attention that an employee was long overdue for a raise. Esquivel said he would investigate. Upon investigation, Esquivel determined that the employee was in fact long overdue and corrected the error by giving the raise. There was no showing, no less a claim, that Sandoval's action was an effective recommendation to grant the raise. See Feralloy West Co., id. Mendoza testified he oc- casionally was asked his opinion about employees, but the record is devoid of the context for the inquiry. Es- quivel testified that he periodically reviews each employ- ee and fills out a performance review before personally interviewing that employee. It is at this time that he de- cides if an employee is to receive a raise. Esquivel did not indicate he consulted leadpersons. It is therefore con- cluded Respondent did not show leadpersons could ef- fectively grant or recommend raises. The record does establish that leadpersons do issue orders to employees daily. Some of the orders are, ac- cording to Mendoza, a mere relaying of direction given by an assistant manager or other supervisor. The other orders issued by leadpersons in the absence of assistant managers have not been persuasively demonstrated to re- quire independent judgment. Initially, Respondent failed to indicate the percentage or how much of the leadper-' sons' time was spent supervising employees. It is undis- puted that leadpersons and counterpersons share many of the same duties. The leadpersons were responsible for training new employees, but according to both Bonilla and Mendoza, for example, the busboys' duties were rou- tine and easily learned. The busboys knew when to take out the trash, when to clean tables, trays, vacuum or sweep floors, and perform their other duties. Even after 3 p.m., when Mendoza was the only leadperson in the dining room and there were no assistant managers in that area, Mendoza admitted that he and the two busboys had been assigned specific duties and knew what to do. During the day unexpected events do occur such as a customer dropping a tray or water glass, but Bonilla tes- tified without- dispute that busboys knew what to do without direction. That Bonilla was the only leadperson working on weekends does not prove he was a supervi- sor, for there were no leadpersons, before his assignment, just assistant managers working on weekends. The basis for his assignment to weekend duty was not established. I conclude that the work of counterpersons was routine and the giving of orders by leadpersons in these circum- stances is insufficient to establish supervisory status. Alamo Cement Co., 277 NLRB' 1031 (1986). Each employee was assigned work hours and break- times in the schedule prepared by Segovia. Mendoza admits the schedules are prepared without any input from leadpersons. Although leadpersons' and assistant managers' names appear on different schedules than counterpersons, this is not indicative of supervisory CARL'S ,J1._ status. There was no showing a leadperson could transfer an employee from one location to another or change an assignment. At most, if there was a spill in the kitchen and the cooks were otherwise occupied, one or two bus- boys may be asked to clean it up. In the kitchen, the lead cooks were responsible for seeing that orders were filled in accordance with established menu standards and quan- tities. In preparation for the day's business, set amounts of various dishes were routinely prepared and placed on trays. The leadperson was responsible for seeing that these set amounts were maintained as orders were filled by telling the cooks more of a particular item was needed. Kitchen cooking chores, according to Sandoval, were generally performed in accordance with set assign- ments determined by the individual cook's ability. For example, the same cook was assigned to prepare the roast beef every day. Cleanup duties, on the other hand, were assigned on a rotating basis, for some chores were more onerous than others. Ivy Daniels, an assistant man- ager, was present in and around the kitchens most of the day. Thus, there was little or no occasion for the lead- person to exercise independent judgment. See McEver Engineering, 275 NLRB 128 (1975). There was one area in which leadpersons were given responsibility in the absence of an assistant manager and that was' in the granting of 10-minute breaks. However, as Sandoval indicated, ' this was a routine matter for breaks would only be authorized when business was slow and not during the lunch hour; 11 a.m. to 2 p.m. Another indication that the leadpersons were not su- pervisors is the fact that they wore the same uniforms as counterpersons. Assistant managers wore vests or suit jackets and white shirts instead of the brown shirts issued to leadpersons and counterpersons. Leadpersons did have a different name tag than counterpersons. Leadpersons' name tags were a different color, beige or light yellow, with their names and position engraved thereon. Coun- terpersons' names were pasted on name tags in red Dymo tape. Leadpersons, assistant managers, and coun- terpersons clocked in and out of work. Leadpersons were never authorized to retain keys to the restaurant, only the manager and designated assistant managers kept keys to the store. Guizar testified, without question, that her duties did not change when she became a leadperson. She was often given the duties of a leadperson while still a cashier. Respondent fails to persuasively explain away the concomitance of duties or lack of training. What Re- spondent did demonstrate was that counterpersons could become leadpersons without any training or instruction. This demonstrates that the work was routine and easily learned if at all significantly different from that of coun- terpersons. In sum, I find that activities such as discipline, hiring, firing, which require the use of independent judgment are left to the assistant managers, managers , and regional directors. The leadpersons engage in routine and clerical activities without exercising the type of independent judgment required under Section 2(11) of the Act. The record fails to establish that leadpersons consistently dis- play true independence of judgment in performing super- visory tasks. NLRB v. Parma Water Lifter Co., 211 F.2d 258, 261 (9th Cir. 1954), cert. denied 348 U.S. 829 (1954). 981 I conclude the Respondent has not sustained its burden of proving that leadpersons are supervisors within the meaning of Section 2(11) of the Act. Thriftway Supermar- ket, 276 NLRB 1450 (1985). C. Agency Status of Sandoval, Revelorio, and Mendoza The General Counsel and Charging Party argue that even though Sandoval, Revelorio, and Mendoza are not supervisors, Respondent must still be held responsible for their statements. Mendoza admits that leadpersons were the conduits to employees for managers and assistant managers. Joint Industry Board, 238 NLRB 1398 (1978), and River Manor Health Facility, 224 NLRB 227 (1976). At the commencement of its campaign, Respondent held meetings during working hours that all assistant manag- ers and leadpersons attended. Their absence from the worksite must have been noticed. After some of these meetings, at the Company's direction, the assistant man- agers and leadpersons spoke to the employees about the organizing effort and distributed some literature present- ing the Company's views. Under these circumstances, I find these three leadpersons have been "placed by man- agement in the strategic position where employees could reasonably believe they spoke in its behalf." B-P Custom Building Products, 251 NLRB 1337 (1980). Cf. Roskin Bros., 274 NLRB 413 (1985), Studio S.J.T. Limited, 277 NLRB 1189 (1985). I find, therefore, that the General Counsel and the Charging Party have established that Sandoval, Reve- lorio, and Mendoza had been specifically deputized by Respondent to perform actions on its behalf in its cam- paign against unionization and they were at all times Re- spondent's agent in the commission of these actions. Whether their actions were unlawful will be considered individually and contextually below. D. Alleged 8(a)(1) Violation The General Counsel contends that in response to the Union's organizing effort, Respondent committed numer- ous violations of Section 8(a)(1) of the Act. Upon learn- ing of the union petition, Carl's sent a representative to the Store to determine the cause of the employees' orga- nizing efforts. Paullins and Ward Ruppel, a company representative from its personnel office, interviewed em- ployees and supervisors to make this determination. After these interviews, McGuire was informed that he was to manage the Store; "not deal with anything about the union, and clear certain disciplinary actions with Paullins, first."24 McGuire, without any advance notice, was then transferred to a distant store and put on a 2- week leave of absence. Paullins admitted the fact that McGuire was one of the causes of the union organizing 24 As noted above, McGuire initially testified that he had to check with Paullins about disciplinary actions. Later he stated he only had to check with Paullins regarding terminations This inconsistency was not atypical of his testimony in general and impacts adversely on his credibil- ity 982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD campaign, which at least contributed to the decision to transfer him.25 Paullins admitted that prior to his testimony, he read, or had read to him, testimony of witnesses who previ- ously appeared in this proceeding. At the commence- ment of the trial, the parties voluntarily agreed to seques- ter the witnesses, except for Mario Mendoza, who was to act as Respondent's interpreter. The parties were in- structed that it was their obligation to police the rule. Paullins' access to at least portions of the transcript was not the subject of objection or a motion to strike on the basis of an asserted breach of the sequestration agree- ment. There is no evidence that Paullins or any of Re- spondent's other witnesses attempted to tailor their testi- mpny to mesh with that of other witnesses. Inasmuch as access to the transcript or portions thereof is not claimed to be a breach of the sequestration agreement and was utilized as a method for Respondent to pursue its legiti- mate defenses, I will consider his testimony, but I am mindful of Wigmore's comment that "it would seem ob- vious to good sense that the perusal of journals reporting this testimony should be forbidden," but this-is no cause, standing alone, to discredit the witness. I shall assess this witness' testimony in light of all relevant factors. See Gossen Co., 254 NLRB 339 (1981), and cases cited there- in.26 Paullins' admission that his testimony was based at least in part on these readings and not recall is also con- sidered in assessing his credibility. 1. The meeting at the Deli The complaint alleges in, paragraph 19 that "on or about 12 March 1984, Respondent, through Jeanette Se- govia, at 321 Bixel Street, Los Angeles, California,27 during a union meeting, told employees that they should forget about the Union because Ken McGuire had, stated that he would close the restaurant if the Union were to come in."28 Segovia admits that sometime in March an employee named Gonzalo asked her to go to a restaurant called the Deli for a meeting with some others to have a few beers after work. It was her habit to go to the Deli after work on paydays, every other Friday, with her boyfriend, Mike Guerrera,29 and others for a few pitchers of beer. On the day in question, Segovia and her party were joined by a number of other employees including Na- jarro, Solorzano, Guizar, Marcelus, Marcos, and Hugo Maldonado. 25 ,At first Paullins said McGuire was transferred because he could not communicate with the employees in Spanish There was no showing that the employee consist of Store 100 was different than that of McGuire's previous assignments as manager. Only after several attempts to avoid an- swering did Paullins admit that "the other problem," the union organiz- ing campaign, was a consideration in the decision to remove McGuire from the Store. This lack of candor reflects adversely on Paullins' credi- bility - - 25 Wigmore, Evidence, Sec 1840 (Chadbourn rev 1976) 27 The parties agreed this was the Charging Party's address 28 The Company did not contend that the misstatement of location of this allegation warrants dismissal of this allegation Rather, Respondent denies the allegation on the merits It is found that, based on the record, this paragraph of the complaint was fully and fairly tried - 29 Guerrera, thean an assistant manager at the Store, did , not appear and testify. Solorzano asserted that during the meeting "Janette talked to us about abandoning the union" that the Com- pany was going to "take away Ken [McGuire] and Ro-, berto [Hernandez]" if the employees abandoned the Union. Prior to the union organizing drive, Hernandez, an assistant manager at the Store, got into an altercation at work. It was alleged that Hernandez kicked Najarro and Najarro threw a can opener at Hernandez. They were not disciplined for the incident, but Najarro was transferred from busboy to cook. Paullins admitted he became aware of the incident about 2 months later, in February; investigated the matter, but did not discipline the participants due to the passage of time. Hernandez was transferred before Esquivel became the store manag- er. The employees were complaining about McGuire and Hernandez and according to Solorzano and Najarro, Se- govia was invited to the meeting which was-held to or- ganize a union. Najarro testified that there were two meetings with Segovia at the Deli and during the second meeting she said, "My opinion is that you should forget about the Union because Ken said that the restaurant is going to be closed if you continue with this about the Union." Ac- cording to Najarro, union authorization cards were dis- tributed during these meetings at the Deli and Segovia and Guerrera observed this activity. Segovia gave a different version of the events, claim- ing she never made the asserted statement and disclaimed any mention of the Union. These denials` are not cred- ited, based principally on demeanor. Also considered were inherent probabilities and inconsistencies in her tes- timony. She admitted that she saw the union literature at the Store and told Ruppel that the genesis of the orga- nizing campaign was the employees' reaction to McGuire. Her assertion that she did not understand some words of the Salvadorian dialect spoken by the counter- persons of the Deli, including the term "union," was dis- credited by her later testimony that when she heard the word union she thought the reference was to a credit union. There was no showing the employees have access to a credit union or that such a statement was contextu- ally appropriate. Segovia was frequently used by the Company as an interpreter, before and during the orga- nizing campaign. There was no mention of any commu- nications difficulty due to differences in the Salvadorian dialect and her own knowledge of Spanish. No such dif- ficulties were apparent at this hearing where none of the court certified interpreters were from El Salvador; and none had difficulty interpreting the word "union." The meeting admittedly occurred in March, after the Union filed its petition on 1 March. Considering Respondent's reaction to this filing, it is highly improbable that Sego- via had no knowledge of the union campaign. In fact Se- govia was a trusted supervisor, working as the manager's "righthand man." Based on the credited evidence, I find Segovia made the claimed statement. Segovia's respected status in the Store would give great impact to a claim that the Store would be closed, and infers such action would be retaliatory if its employ- ees are successful in their union organizing efforts. Re- CARL'S Jk: spondent has not shown that this statement fits the cate- gory of lawful predictions. I find the conduct violative of Section 8(a)(1) of the Act. Compare Churchill's Res- taurant, 276 NLRB 775 (1985). 2. Allegations concerning McGuire The complaint alleges in paragraphs 21 and 22 that: 21. On various occasions in March and April 1984, Respondent, through Ken McGuire, at the fa- cility of Respondent described in paragraph 2 above, ordered employees to report to Respondent the union sympathies of their co-workers. This alle- gation is discussed below in the section 3 company meetings that McGuire was the alleged wrong and not Ruppel and Esquivel does not warrant dismissal of the charge. 22. In or about the beginning of March 1984, Re- spondent, through Ken McGuire, with the assistant [sic] of Jeanette Segovia acting as interpreter, at the facility of Respondent described in paragraph 2 above: (a) Interrogated employees regarding their union activities. (b) Told employees that their union activities were prohibited. (c) Told employees that anyone caught distribut- ing union literature or involved in union activities would be suspended. (d) Promised employees more work hours if they were to abandon support of the Union. McGuire, Paullins, and Segovia deny the allegations. Respondent argues that McGuire was ordered to not get involved with anything involving the Union and that his denial, as a former company employee with some resent- ment toward the Company, should be credited. Solorzano testified that in early or mid-February McGuire offered to promote him to leadperson, give him a raise, and increase his hours. The offer was refused, Solorzano did not feel comfortable accepting the position because he does not speak English. There was no testi- mony by Solorzano that McGuire coupled the offer with anything related to the union organizing effort. Miguel Revelorio translated for McGuire during this conversa- tion. Revelorio was a leadperson. He understood McGuire made the promotion offer after inquiring why Solorzano wanted the Union; and the offer was to be an- other means for giving him a raise. Revelorio, a current employee of the Company, was a credible witness. How- ever, his testimony on this point was confused and there was no reference to the incident in his affidavit. Reve- lorio did not claim McGuire made the offer contingent on some promise or action by Solorzano--thus, this testi- mony does not warrant the finding of a violation of the Act. As Solorzano admitted in his affidavit, "McGuire did not place any conditions on his offer, but I had a feeling it came as a result of the Union's organizing com- paigning [sic]." It is uncontroverted that leadpersons re- ceive more wages than counterpersons. There was no showing that the position offered Solorzano did not re- quire the assignment of more hours. The failure of the 983 General Counsel to tie the alleged promise to the aban- donment of support of the Union's requires the conclu- sion that there is a failure to prove this subparagraph of the complaint. I find that this allegation should be dis- missed. Naiarro testified that in March, Segovia asked him to come with her to the manager's office. When he arrived at the office, McGuire and Paullins were there. McGuire, apparently with Segovia acting as interpreter, asked him if he knew something about the Umon and who was involved in the Union. In reply, Najarro said all the personnel were involved because they did not agree with the Company's actions. McGuire assertedly told him "that those union activities were prohibited, and whoever was observed doing anything of the union could be suspended." Najarro's testimony about this meeting is credited based on demeanor. Also considered is Segovia's admission that, prior to the commencement of the union organizing campaign, she was unaware of a no-solicitation or no-distribution rule, but after the cam- paign began, the Company said something "about while we were working documents weren't to be passed out in work areas anywhere. 1130 McGuire admitted the some employees took their breaks in the dining area in a loca- tion near a television set. This is a work area. It is undis- puted that the Company distributed literature trying to persuade employees to not vote for the Union during its antiunion campaign; on the Company's premises during breaks.3 i The leadpersons and assistant managers were also assigned to talk to specified employees and discuss the Company's position.32 Demeanor alone is sufficient to discredit the denials of McGuire, Segovia, and Paullins. Also considered is the fact they testified at great length in response to leading questions. I noted twice on the record that testimony elicited on, direct examination through the device of lead- ing questions had less probative value and that this would be considered in making credibility resolutions. I do so now. This is only one of a multitude of reasons for not crediting much of their testimony. Paullins, for exam- ple, tried to volunteer information to tailor testimony to fit the Respondent's litigation theories. McGuire engaged in similar conduct. Paullins testified inconsistently. For example, he testified that he reviewed some of his notes about a week before he testified. He made notes of each incident as part of his duties. After testifying some of these notes were written in 1984, he said he reviewed documents not notes; and said that he did not have any notes. When asked for the documents he said he did not review any documents then later said he viewed some of the literature distributed during the campaign. Also, it evolved that everything in the transcript that pertains to him was read to him.33 Paullins admitted at least once 30 As noted above, she denied hearing McGuire tell Najarro that he could not do anything for the Union 31 For example, see the testimony of Segovia on Tr 2478 32 The Company's no-distribution policy will be discussed in the sec- tion dealing with Solorzano's suspension and discharge below 33 The scope of this reading was not described This action is also dis- cussed above 984 DECISION jOF THE NATIONAL LABOR RELATIONS BOARD that his testimony was based on material read to him from the transcript, that, he had no, independent recall and could not separate his independent recall from the material read to him. Paullins also admitted to lack of recall about many important matters. Particularly on cross-examination, Paullins did not answer in a clear direct manner, and at times visibly lacked candor, at- tempting at times to obfuscate rather than present facts.34 McGuire, like Paullins, attempted to volunteer infor- mation in a patent attempt to tailor his testimony to fit Respondent's litigation theory. Although no longer an employee, McGuire obviously took great pride in his management efforts while in Respondent's employ and, while admittedly feeling wronged by the Company, he also visibly wanted to demonstrate the propriety of his efforts during his short tenure as manager of Store 100. Also, McGuire's testimony contained inherently incredi- ble testimony. For example, he testified he had no idea when the meetings for all leadpersons and supervisors were held, exactly who attended, or how frequently they were held. Yet, he also testified he spent most of his time roaming the Store. It seems incredible he did not notice that only counterpersons were present for 1 or 2 hours almost every afternoon, even though his office was used for most of the meetings including the first.35 McGuire admitted he had difficulty recalling the events that tran- spired at the Store. He also engaged in patent surmise and generalization further undercutting his credibility.36 As noted above, Segovia was not a highly credible witness. Her testimony contained inconsistencies. Initial- ly, she claimed' she had no function at the meetings. Then she admitted she did some translating. She did not appear candid and forthright in her demeanor. Segovia volunteered information in an attempt to tailor her testi- mony to fit Respondent's theories of the case. She resort- ed to generalizations to coverup lack of recall and only when pressed admitted she did not remember the facts requested. Also she resorted to surmise rather than admit lack of knowledge.37 In sum, based on the credited testimony, it is found that McGuire asked Najarro what he knew about his union activities and told him that anyone engaging in union activities could be suspended. In determining the legality of an interrogation, it must be resolved whether, under all the circumstances the in- terrogation reasonably tends to restrain, coerce, or inter- fere with the employees' Section 7 rights. Rossmore House, 269 NLRB 1176 (1984). In this case I find that Najarro was a known union supporter. He attended the meeting with Segovia at the Deli and was admittedly an outspoken union supporter at the time. Najarro also as- serted, without contradiction, that Segovia and Guerrera observed him soliciting union authorization cards. Sego- via then spoke to Ruppel who was investigating the gen- 34 See for example Tr 1382, 1383, 1390, 1428, 1514, and 1515, 35 See Tr 2711-2714 36'See Tr 2784 and 2790 for examples, 37 See Tr 2485, in which she testified McGuire did not know the em- ployees were trying to get a union in before he left McGuire admitted he was informed that the Union filed a petition on 1 March, shortly after the Company was notified and while he was still manager ' esis of the organizing campaign. During the interview in question, the questions were asked by the store manager in the presence of the district manager and an assistant manager. The exchange occurred in the manager's office after Najarro was specifically brought there to answer the questions. This was certainly not a casual conversa- tion where general information was sought. Respondent wanted to know who supported the Union and why. As found in Kona 60 Minute Photo, 277 NLRB 867 (1985). This information can reasonably be seen by those being questioned as a basis to initiate action against individual employees. In fact, at the conclusion of the questioning, discipline for union activity was threatened. Under these circumstances, I concluded that the questions accompa- nied tended to coerce Najarro and were violative of Sec- tion 8(a)(1). McGuire's statement to Najarro that union activity was prohibited and threatening to discipline em- ployees who are caught engaging in such activity is also found to be coercive and violative of Section 8(a)(1). '3. The company meetings The Company expressed its concern over the union or- ganizing campaign by having Paullins interview' all unit employees regarding what they felt the problems were in the restaurant. The Company also held meetings,with all the leadpersons and supervisors working at Store 100. The meetings were held during working hours and the attendees were paid for their time. If the attendee had al- ready worked their scheduled time they were paid for overtime. Attendees not scheduled to work that day re- ceived premium pay. All leadpersons and supervisors, except McGuire, were required to attend. The meetings lasted between 1/2 to 2 hours. Ruppel conducted most if not all of the meetings. The General Counsel alleges that it was these meetings and actions derived from them that resulted in many violations of Section S(a)(1). Respond- ent contends these meetings were held to inform the leadpersons and supervisors what they were' permitted and prohibited from doing during an organizing cam- paign, this is the antithesis of the allegations. The Com- pany denies that any leadpersons or supervisors violated the Act. Esquivel's unrefuted testimony is-that during the first meeting or two Ruppel distributed and reviewed a series of documents relating to the organizing campaign.38 Also discussed at the meetings, on unspecified dates, was prounion literature. The origin of some of this material was not established on the record. Some of this literature claimed the Company committed many of the violations alleged in the complaint. The Company argues this liter- ature was the origin of the claimed threats and other vio- lations, not Respondent's actions. These positions of the parties will be evaluated based on the credited testimony. as These documents included A Guide to Basic Law and Procedures under the National Labor Relations Act prepared in the office of the Gen- eral Counsel of the Board, Your Government Conducts an Election also a Board-prepared publication, Everything You've Ever Wanted to Know About Unions But Were Afraid to Ask, published by Commerce Clearing House, and several documents prepared by Respondent stating what su- pervisors may do during a union organizing campaign Some of these documents were also printed in Spanish and distributed to the Spanish- speaking personnel CARL'S JR. The testimony of some of the witnesses was corrobo- rated in part by Esquivel. It is admitted by Esquivel, whose testimony on this point is corroborated by Guizar, Sandoval, and Bonilla,39 that Ruppel, about the third meeting, brought a chart to the meeting that listed, the names of all the counterperspns. The chart was used during that meeting and most, if not all, subsequent meet- ings to review the employees' attitudes. Each leadperson and assistant manager was asked whether each employee was happy with their working conditions and benefits. Esquivel was not sure if they were asked or discussed whether the individual employees were for the Company or for the Union. He as well as Paullins admitted the Company conducted an antiunion campaign and that the purpose of the meetings was to organize and further the Company's campaign. Esquivel also admitted that indi- vidual assistant managers and leadpersons were directed to talk to employees and to urge individual employees to vote against the Union. a. Testimony of Bonilla Bonilla attended only one of those , meetings; about 1 week before the election. Bonilla was promoted leadper- son shortly before the election Prior to the promotion he went to a union meeting and signed an authorization card. At.the meeting, Ruppel referred to the chart listing all employees eligible to vote and consulted with each leadperson and assistant manager, asking them to opine whether that employee was in "favor of the Company and who was not. ..." The chart was marked to desig- nate if the employee was for or against the Company. If doubt was expressed about an employee the reason for the doubt was sought. If an attendee expressed reticence to talk about the employees, they were told -that they would talk to him later. If an attendee stated an employ- ee was "in favor" of the Company, they would be direct- ed to strengthen that individual's proclivities by telling them "bad things about the Union." Ruppel also said it was important for the employees to know "it was necessary" to vote for the Company and how to mark their ballots to vote for Respondent. They were told it was important that each employee knows which box to mark with an X and to be sure the X was in the box to insure their vote would count. He was also told to explain that voters should not sign their ballot. On the day before the election, Ruppel talked to him in the office. Jeanette Segovia acted as interpreter. "Jea- nette told me that he would do the same, that he knew that Antonio Solorzano and Luis Najarro were the re- sponsible ones who brought the Union to that locale of work. And because the Company didn't want these kind of people working there, and he asked me what side was I, it was to their side or the side of the Company. [sic]" Bonilla replied that he was "in favor of the Company." He was then requested to assist them. He was asked to arrive early on election day and talk to the eligible voters to try to convince them to vote "for the Compa- ny" and show them how and where to mark their bal- lots. 19 Segovia's uncorroborated contrary testimony is not credited. 985 On election day, he arrived on time, not early as re- quested. Bonilla observed the following leadpersons and assistant managers talking to employees about the elec- tion, Mario Mendoza, Federico, Griselda Guizar, Lupe, Jeanette Segovia, Luis Sandoval, Voohies, and others whose names he could not recall. He heard some of these conversations. Mario Mendoza was overheard talk- ing to busboys Salvador and Juancito, among others. Mendoza told them they had to vote for the Company, showing them where to mark the ballot with an X, using a sample ballot distributed to the leadpersons and assist- ant managers. Guizar was heard telling employees that they had to vote for the Company, not the Union. Bon- illa heard Lupe telling Juancito and Salvador that they had to vote for the Company and demonstrating how he should mark the ballot. Sandoval was observed talking to several cooks and telling one, Jesus, that he had to vote yes for the Company and no for the Union. Esquivel was also observed talking to employees, but Bonilla did not hear what he said. Ruppel did not appear and testify. His absence was un- explained. Segovia has been found not to be a credible witness. Bonilla was a credible witness. This finding is based principally on observing his demeanor that was in- tense and forthright. This current employee demonstrat- ed a clarity of recall and willingness to assist in the pro- ceeding. b. Testimony of Sandoval Before the commencement of the union organizing campaign, Sandoval never attended a meeting with any assistant managers and leadpersons, although assistant managers met regularly with the manager. After the union organizing campaign commenced he attended the company-conducted meeting with the assistant managers. Sandoval is no longer employed by Respondent. According to Sandoval, during these meetings the Company distributed material describing the individuals' rights. Paullins, Esquivel, and Ruppel told the attendees what information they, should communicate to the em- ployees to convince them to vote against the Union, in- cluding: the employees may be subjected to union fines if they broke certain rules; and, if the Union won the Com- pany could close the restaurant, call Immigration, or fire employees. Ruppel asked them to help win'the employ- ees over to the Company's point of view because the Union could not promise better benefits. Sandoval admit- ted that he talked to almost all the cooks repeating what he was told, that they "could have problems with Immi- gration or lose their jobs" or the restaurant could be closed; and, that he was instructed by Paullins and Ruppel to inform(them of the dangers of voting for the Union. After talking to the employees daily he would report back during the company meetings whether he was able to gain the assurance of employees that they would vote for the Company or change the minds of those favoring the Union. Sandoval's report would be noted on the chart by dashes and dots. Sandoval admitted he thought the Company was wrong; he favored the Union and told 986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees not to believe- what the Company told them and he urged them to vote for the Union. On election day, Sandoval claims he did not talk to any of the cooks because he understood that "They .. . could not talk to them anymore." This denial of wrong- doing is not credited based on his demeanor during this denial. He observed Jaime talking ' to employees as they were getting ready to vote and in a hurried manner heard him telling the cook to be sure they knew how they were going to vote; to vote no for the Union. Based on demeanor, Sandoval's admissions are credited. His testimony was credibly corroborated. c. Testimony of Guizar This former employee is one of the alleged discrimina- tees. Guizar was promoted to leadperson shortly before the election and began going to the company meetings on 12 April. She candidly admitted to being prounion. When she was promoted, Ruppel, in Voohies' presence, told her he knew she and her sister were involved in the- Union but that because she was now a supervisor, she could not go around campaigning for the Union, and he instructed her not to go around campaigning for the Union, but to campaign for the Company, by talking to the employees. She was given a list of counterpersons to talk to and was instructed on what to say. When she car- ried out this order she was observed by the manager or assistant manager who issued the order . During these talks she reviewed with the employees why Respondent thought the Union would not be good for the Company and asked the employees to "vote no." She did this during working hours, including on election day. This testimony is found to be credible corroboration of Bonil- la's testimony. Specifically, Guizar was instructed to tell the counter- persons to vote no in the election, and that the Company was "gonna close the store and . . . everybody's gonna lose their jobs . . . everybody's gonna be fired." Ruppel also instructed the attendees ofthe company meetings to tell the employees to vote no. He indicated that if the employees chose the Union things would happen, "[h]e'd tell us many times that he knew there were Salvadorians and there was an illegal working in the United States. They was going to call immigration-to tell that to the people and we did." Also, "[Ruppel] said he knew about the Salvadoran people and he said that, tell -them they don't want to go back and get killed in _ El Salvador, vote, `no,' because we gonna call immigration." She fol- lowed this directive and said so did others; "everybody was telling everybody." She observed other leadpersons talking to employees. On cross-examination, in response to a leading ques- tion, Guizar agreed that Ruppel and others said that the business would be closed if there were strikes or the Union asked for more than the Company would pay. Se- govia assertedly made similar comments. Guizar admit- ted relating these statements to unit members . There was no showing Guizar's comments to the employees were so cast as to make them permissible opinion. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). According to Guizar, Ruppel instructed the assistant managers and leadpersons to inform the employees that if they voted against the Union, there would be changes, they would have working hours restored and receive other benefits. They were to encourage the employees to relate their problems or any questions and indicate the Company would understand and correct their problems; 40 to say that the Union does not care about employees because they are strangers, and to tell employees if they had any questions or problems to come to the leadperson who would understand and correct the problems. According to Guizar, Ruppel discussed alleged discriminatee Solorzano at one meeting saying "that it was silly . . . to think he got fired because he put some chile on the nachos." That the real reason that everybody knew, that was because he was involved with the Union. [Ruppel] said that was going to happen to every- one who was involved. Guizar also described with accuracy some of the liter- ature the Company first distributed during the meetings that was later disseminated to employees. There is no al- legation that any violation of the Act occurred by the distribution of this material. In corroboration of Bonilla and Sandoval, Guizar de- scribed the chart and how Esquivel , 'Paullins, or Ruppel would ask the attendees how they thought the individual unit members would vote and then indicate on the chart whether the individual was considered a company or union person. These three company representatives also said during these meetings that they thought it would be better for the Company if the Union lost the election. Guizar is found to be credible based on her demeanor. I also note she demonstrated the ability to accurately recall the matters addressed at the trial with candor. d. Testimony of Mendoza Respondent called Mendoza to refute the allegations of Bonilla, Sandoval, and Guizar. He corroborated their tes- timony' about the chart .41 He also said they were to find out if the employees had problems and what they were so that they could be solved . One problem mentioned by an' employee was their work schedule. He did not know if the schedule was changed. Mendoza admitted the em- ployees were reluctant to talk to him about their prob- lems. - Regarding store closure , in response to many leading questions, Mendoza testified that Ruppel said if the, Union prevailed and got a contract that cost too much, the Store might have to close. He related this statement to the busboys.42 He admitted it is possible he told em- 40 The complaint did not allege that Ruppel promised employees they would retain or receive increased benefits if they did not support the Union But it alleged that about 2 April 1984 , Esquivel promised employ- ees that they could return all their benefits if they abandoned support of the Union 41 None of the witnesses testified how an individual employee's senti- ment was recorded on the chart 42 Some prounion literature distributed outside the restaurant indicated that unionization could result in substantially increased wages CARL'S JR. ployees the Store might , go bankrupt. Mendoza also said that no one mentioned deportation during the meeting al- though there was a rumor that the Company would deport employees if they did not vote against the Union. Mendoza's comportment was not credible. He had poor recall, did not listen to questions, and volunteered information; indicative of attempting to tailor testimony to meet Respondent's litigation theories. As previously mentioned , much of his testimony was in response to leading questions. Also he failed to respond directly to some questions in a manner bespeaking lack of candor. e. Discussion No unit members attended these meetings. Leadper- sons are explicitly excluded from the unit. Respondent argues it is not responsible for their conduct. See Mont- gomery Ward & Co., 115 NLRB 645 (1956), and its prog- eny. Cf. Times-Herald, 253 NLRB 524 (1980), and United Artists Theatre Circuit, 277 NLRB 115 (1985). The com- plaint lists three leadpersons as agents, Sandoval,43 Re- velorio, and Mendoza . I find that the failure to allege Guizar and Bonilla as agents does not absolve Respond- ent from responsibility for their conduct which the Com- pany encouraged and authorized. There was no objec- tion to this testimony on the basis of surprise or other prejudice. The credited evidence clearly establishes that at least some leadpersons admittedly told unit members they should vote no in the forthcoming election , and benefits would result or, if the Union won, certain specified ad- verse consequences could result . These leadpersons were clearly cloaked with the authority to make these state- ments. Holiday Inn-Glendale, 277 NLRB 1254 citing Longshoremen (Sunset Line), 79 NLRB 1487, 1509 (1948). Respondent required all leadpersons and supervisors to attend daily meetings as part of its efforts to resist the Union's organizing efforts. It was obvious to the unit members that all leadpersons and supervisors were at- tending these meetings. Esquivel admitted going around the store and directing their attendance . He admitted that the leadpersons and supervisors were told to talk to unit members to discuss company benefits and other mat- ters as part of its campaign. Leadpersons were assigned specific employees to talk to and to ascertain their views; whether they were procompany or prounion . The em- ployees' probable leanings were then regularly reported back to management and noted on the chart. The lead- persons and supervisors also distributed company cam- paign literature to unit members-including material on how to mark their ballots.44 Thus I find that Respondent deputized leadpersons and supervisors to inform unit members why they should not vote for the Union during normal work hours. In fact, Sandoval claimed, without contradiction, that when he communicated the threats he also told unit members he was instructed to do so by Paullins and Ruppel. These statements were made in furtherance of the Company's 43 See pars 7 and 25 of the complaint I find this allegation was fully and fairly tried. 44 There is no allegation that the Company or its agents engaged in electioneering 987 ostensible interests . In sum, I find Bonilla, Sandoval, Guizar, and Mendoza were acting as Respondent's agents when they made the admitted statement to unit members. Holiday Inn-Glendale, supra, 277 NLRB 1254. Cf. Uniontown Hospital Assn., 277 NLRB 1298 (1985). These agents admit to making threats and promises. They also admitted they were directed to report the union sympathies of unit members . This credited testimo- ny requires a finding that Respondent violated Section 8(a)(1) of the Act by: Ordering leadpersons to report to Respondent the Union sympathies of their coworkers; telling unit members to vote against the union, for, if the Union won the election, union supporters could be termi- nated as were Solorzano and Najarro;45 that the Compa- ny could close the restaurant;46 INS would or could be called to report the presence of illegal immigrants;47 and the employees might be sent back to El Salvador and face death ; that if the employees voted against the Union there would be changes in working conditions including restoration of working hours;48 and solicited grievances while ' implying that Respondent would redress the prob- lems,49 without showing it has engaged in similarly con- ducted surveys in the past. That some of these leadper- sons may have been sympathetic to the Union does not motivate the coercive effect of their actions for there was no showing their sympathies were known to the members they talked to or that such sympathies would temper Respondent's actions if the Union won the elec- tions. Cf. Paintsville Hospital Co., 278 NLRB 724 (1986). The complaint also alleges that Ruppef created the im- pression among the employees that their union activities were under surveillance by Respondent. This allegation is discussed below in the section discussing the suspen- sion of Grizelda Guizar and related allegations . The alle- gation in paragraph 25, subparagraph (a) that Sandoval interrogated employees regarding' their union activities and the union activities of their fellow workers during the course of his actions on behalf of Respondent" has not been substantiated by a preponderance of the evi- dence and will be dismissed. 4. Allegations concerning Esquivel The complaint alleges that Esquivel engaged in a plethora of violations of the Act. Specifically it alleges: 20. On or about the dates listed below, Respond- ent, through Raul Esquivel, at the facility of Re- spondent described in paragraph 2'above: (a) On or about April 21, 1984, told employees that they would lose benefits if the Union won a Board-conducted election. 45 Uniontown Hospital Assn , 277 NLRB 1298 46 Poletti 's Restaurant, 261 NLRB 313 (1982). 47 Sure Tan, Inc, 234 NLRB 1187 (1978). 48 Uniontown Hospital Assn., 277 NLRB 1298 (1985); and Boyle- Midway, 247 NLRB 851; C. Markus Hardware, 243 NLRB 903 (1979) 49 University of Richmond, 274 NLRB 1204 (1985), Ace Hardware Corp, 271 NLRB 1174 (1984) 5° His reports to Respondent during the meetings may have come from his observations alone There was no showing how he got the infor- mation for these reports 988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) On or about April 2, 1984, promised employ- ees that they would retain all of their benefits if they abandoned support of the Union. (c) On or about April 11, 1984, told employees that reprisals would be taken against them' as a result of having engaged in union activities. (d) On or about April 13, 1984, told employees that he had fired Juan Solorzano because he had en- gaged in union activities. (e) On or about April 23, 1984, told employees that Respondent would close the restaurant if they selected the Union as their collective- bargaining agent. (f) On or about April 23, 1984, told employees that Respondent would call the Immigration and Naturalization Service if the Union were to win a Board-conducted election. (g) On various occasions in April 1984, interro- gated employees regarding their union activities. (h) On or about April 7, 1984, instructed employ- ees to help him win support against the Union. (i) On or about April 7, 1984, told employees that all of those employees that did not assist him in winning support against the union would be fired. (j) On or about April 12, 1984, offered payment to employees if the employees agreed - to attend a Union meeting and report to him which employees attended the meeting so that he could fire them. (k) On or about April 23, 1984, instructed em- ployees to report to him regarding the union sup- port of other employees. (1) On various occasions during the months of March, April and May, 1984, told employees that certain other employees were union supporters and that it was necessary to get rid of them. (m) On or about March 26, 1984, at a meeting for Respondent's assistant managers and leadpersons, in- structed employees to convince other employees to vote against the Union, and said that due to a few, all would pay. (n) In or about April 1984, on various occasions, interrogated employees regarding how other em- ployees were going to vote in the union election. (o) In or about April 1984, told employees to state whether they were going to vote for Respond- ent or for the Union in the union election. (p) On or about July 28, 1984, told employees that he knew that certain employees had gone to Respondent and to the Union to report him, and that as a result, he was going to fire the employees. (q) On or about July 17, 1984, told employees that Respondent would get rid of all of those em- ployees who had worked at Respondent's facility (described above in paragraph 2), who had worked for Respondent during the Union's campaign. (r) On or about July 19, 1984, asked an employee why he had gone to the Union regarding a problem in the receipt of his paycheck, and what he had to do with the Union. a. Testimony of Flores (1) Status of Flores For ease of presentation, the status of Flores will be discussed at this juncture. The Union challenged the ballot of Flores alleging she is a leadperson and thus ex- cluded from the unit. Flores, whom Respondent con- tends is not a leadperson, testified to possessing most of the indicia of supervisory status. I find, however, the Charging Party has failed to establish by a preponder- ance of the credible evidence that she was a leadperson and a supervisor. Flores started working for Respondent in March 1982 while she was a sophomore in high school. Flores worked part-time, principally on weekends during the school year, and occasionally after` school. During vaca- tions she worked full time. She testified that around 1983 Richard Dwyer, 51 an assistant manager, talked to her about becoming a leadperson. Shortly thereafter, she be- lieves, she received a raise and her duties changed. Her new duties included helping an assistant manager count the money in the office;52 and being in charge of the cashiers in the assistant manager's absence.53 She was given keys" to the cash drawers and if any of the cashiers were out of money, she would get it for them; along with another individual, a leadperson named Lupe.54 She also performed a "QA,"55 which included checking the restaurant daily for cleanliness, checking the tem- peratures of the refrigerators, and recording the informa- tion.56 She would also total the hours on the employees' timesheets.5 7 Flores, while attending one of the meetings held, by the Company for assistant managers and leadpersons in March, was asked by Paullins to leave as soon as he saw her. Paullins informed her she was not considered a lead- person. Flores testified that shortly after Dwyer spoke to her, she was issued a new name badge that read "Olivia, leadperson." Name badges for leadpersons and assistant managers had to be ordered for they were engraved: So- lorzano, ' Guizar, and Sandoval saw her wearing the badge and Solorzano said he had heard from' a nonsuper- visOry source that she had been promoted to leadperson. The Company's records do not reflect that Flores was promoted to leadperson. She never received any memor- alization of the promotion, contrary to established proce- dures. All her personnel records reflect she, was a coun- terperson until she left Respondent's employ. In fact, she admits that Assistant Manager Philipos told her she 5l Dwyer did not appear and testify, his absence was not explained. 52 As previously noted, Guizar performed these tasks while a cashier sa Flores did not fully explicate what she meant by the term "being in charge" When it was not busy, she would direct other cashiers to clean up and occasionally cleaned up herself This, is a routine task not demon- strative of the possession of independent judgment, as found above 54 Flores did not know Lupe's last name Ss The term or the acronym "QA" was not made a part of the record 56 There is no clear showing this task was more than clerical in nature 54 This is also found to be a clerical task because there was no indica- tion it involved the exercise of independent judgment Flores further tes- tified, as found above, that when she considered herself a leadperson, she did not have authority to give employees leave to go home early or re- quire them to work overtime Two employees, herself included, were as- signed cash registers daily by the assistant managers , CARL'S J1.. ^ n would have to await her high school graduation before she could be promoted to leadperson . The first raise she received was the 10-cent raise for counterpersons who perform satisfactorily after an established number of bench hours. 58 The Company's documents and uncon- troverted testimony indicate these raises do not reflect a promotion. Flores received another standard longevity raise after 1200 hours and was earning $3.65 an hour. According to Respondent, based on uncontested evi- dence, a promotion to leadperson usually would have been accompanied by a raise . -59 The personnel files do not reflect such a promotion or raise. Further substantiat- ing this conclusion is Flores' admission that her work as- signments appeared on the counterperson 's list, which is kept in the training room rather than on the assistant manager and leadperson list that was kept in the office. She asserted another leadperson was also assigned work on the counterperson's list. It was not clearly established whether the other employee was a leadperson . Flores never questioned why she was on the counterperson's list. Paullins testified without contradiction, that he would have had to approve Flores' promotion; an assist- ant manager cannot. There was no showing that Paullins had approved the promotion. Although Clemens was known for sloppy paperwork, such was not demonstrat- ed to be the case in this instance, and if it were so, would not constitute a promotion. Usually, according to Paullins, the manager would inform the employees they were promoted . Flores does not claim Clemens told her the promotion was approved . Flores claims Segovia took the badge. Segovia was not questioned on the issue. Such a badge was not placed in evidence . Assuming Flores had a leadperson's name tag, this would not constitute a promotion for it does not meet Respondent 's established procedures and the proponent has failed to indicate it otherwise so qualifies. In sum, I find that the Charging Party has failed to es- tablish, that Flores was promoted to leadperson. 6 0 Accordingly, the challenge to Flores' ballot is over- ruled. Since this ballot is sufficient to affect the results of the election, I recommended the Regional Director be directed to open and count the ballot, to prepare a re- vised tally of ballots, and to issue the appropriate certifi- cation. (2) Alleged unfair labor practices of Esquivel Flores testified that she overheard Esquivel say to Se- govia, in the presence of Rafique Philipos, an assistant manager: He just said that who-whoever votes for, for the union, that he was going to get the immigration 58 Bench hours are the total number of hours the employee worked for the Company ss Guizar was promoted to leadperson without getting a raise. 80 It is noted Flores testified that in early 1984 Respondent started a training program for leadpersons Paullins testified that it was up to each store manager to train leadpersons Esquivel testified that at some unspec- ified time, classes for leadpersons were held in his district The failure to adduce the time and content of these classes warrants a finding that there was no showing that the leadperson promotion is supervisory or even re- quires special training 989 to them . . . . He said he was going to send 'em back to the-to their-countries and stuff. Also, Flores said she overheard Esquivel tell Philipos: . . . that he would rather have the-the restaurant close up but the union wasn 't going to get in. Philipos did not testify. His absence was unexplained. Respondent argues that the allegations are untrue. The Company argues that the coalition and perhaps the Union6' circulated documents to the employees that er- roneously charged the Company with making such threats.62 In fact, the Company asserts in its objection to the election, that it was an union agent that threatened employees who did not support the Union with calling INS to deport them. This allegation is discussed in the section entitled "The Respondent's Objections to the, Conduct of the Election." It was not demonstrated that these statements Guizar overheard, which were not, made to any unit members and were not placed in a con- text indicative of coercion or interference, were violative of the Act. These statements will, however, be consid- ered as corroboration of Sandoval's and Bonilla's testi- mony. b. Testimony of Bonilla According to Bonilla, he had several conversations with Esquivel before he was promoted to leadperson in April. During one such conversation in March, Esquivel assertedly said "that if the Union won, they are going to close the restaurant, and if it was possible, they were going to call the Immigration so they would take away all the illegals, or undocumented people." Later that same day, Esquivel asked him if he had his papers. After Bonilla said he did, Esquivel said, "fine, in case Immigra- tion comes he has them." Then in early April, Esquivel told him that if the Union won the election, the restau- rant was going to be sold and Immigration called be- cause he did not want to work where he would be get- ting orders from the Union. Paullins admitted he over- heard Esquivel say he would not like to work for two bosses, Carl's and the Union, as a reason employees should not vote for the Union. During the Company's campaign , Bonilla admitted that Esquivel would discuss the material described in the Company's literature and ask if Bonilla had any questions or if he could provide more information. There was no indication Esquivel promised any benefits based on these discussions . Although Bonilla said he indicated to Esqui- vel he favored the Company's position whenever Esqui- vel spoke to him about benefits, there was no showing this was in response to any unlawful interrogations. As found above, Bonilla was the more credible wit- ness. It is also noted that Bonilla's testimony is corrobo- rated by other credible witnesses. 61 There is not a scintilla of evidence that the Union engaged in such action or gave its imprimatur or assistance to it 62 See R Exh 17. 990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD c. Testimony of Sandoval Sandoval testified that prior to the election, Esquivel, in the presence of five other employees, asked him if he knew whether the cooks had papers to prove they were legally in the country. In reply, Sandoval said he did not know. Esquivel then asked if he knew whether the lead- persons were documented aliens. Sandoval replied he could only speak for himself. After the election, Sandoval was told he was trans- ferred to another restaurant. When Sandoval asked Es- quivel why he was transferred without requesting it, he was told "Esquivel wanted to get rid of all the people that he had there and he wanted to get all new people that will be convenient, better for him." After his transfer, Sandoval went back to the Store for a paycheck. Esquivel told him the check had not arrived, then he inquired if it was true that Sandoval was in the Union. Esquivel denied these conversations occurred as alleged. Sandoval has been found to be the more credible witness. Because this inquiry occurred after the election and was not shown, under the criteria established in Blue Flash Express, 109 NLRB 591 (1954), as explicated in Rossmore House, 269 NLRB 1176 (1984), to reasonably tend to restrain, coerce, or interfere with the rights guar- anteed by Section 7 of the Act, it is found that it was not violative of the Act. This allegation of the complaint is dismissed. d. Testimony of Revelorio Revelorio testified that about 3 weeks before the elec- tion, Esquivel said-he wanted Revelorio and Mendoza to determine who was in the Union "so as to run them out." They were to go to a union meeting to gain this information. In response to a leading question, Revelorio also said he recalled Esquivel offered to pay them for the time devoted to this activity. Esquivel frequently asked him to help the Company campaign, and to determine which employees were for the Company and -which were for the Union. Revelorio honored this request; but did not tell unit members how to vote. Revelorio always reported that he and the individuals he questioned fa- vored the Company. - Shortly after Esquivel started working as manager of the Store, he asked Revelorio how all these problems got started; who initiated the organizing effort; and, who was in the Union. Revelorio answered he would not reply, he did not have the time.63 He also asserted Esquivel talked about Palma and the Union, saying he was sure Palma was for the Union and he was going to terminate Palma. Revelorio testified that at least some of these conversations about Palma oc- curred after the election. After, the election, Esquivel as- sertedly told Revelorio that he wanted to fire Sandoval, "that he wanted to fire those that he was sure belonged to or worked for the Union." His affidavit does not clearly corroborate this testimony. Thus, it appears that Sandoval may have told Revelorio what he understood Esquivel's position to be, not Esquivel. The lack of clar- cs As previously noted, Revelorio was a busboy in February and March 1984 ity on this point introduced by the affidavit leads me to conclude that Revelorio's testimony on this point is not persuasive. That Revelorio admitted he did not like Es- quivel does not impair his credibility, rather as a current employee, it enhances it, for he is candid. Esquivel denies Revelorio's allegations, but admits he told some employees to investigate the Union. He claims he, meant they_ should get some facts, but he did not claim he clearly related such intent to the employees. Regarding the solicitation of surveillance allegation, Mendoza testified that Revelorio was not told, to his knowledge, to go to one or more union meetings and spy. Mendoza knew who attended union meetings from other employees. Mendoza, as previously noted, was not found to be a highly credible witness and his categorical denial is not persuasive. Revelorio, on the other hand, testified in a candid and forthright manner. Based on de- meanor and other considerations, Revelorio's testimony is found to be credible where clear. e. Discussion The General Counsel's witnesses did not address all the violations allegedly committed by Esquivel. As noted above, the testimony specifically substantiates, by a pre- ponderance of the credible evidence, only those allega- tions contained in paragraph 20(e), (f), (h), (i), (k), (1), (n), and (q). All the other allegations in paragraph 20 shall be dismissed. As stated above, threats to close the restaurant, call the Immigration and Naturalization Service, and fire union supporters as a method to coerce employees to vote against the Union, are violations of Section 8(a)(1) of the Act. There was no convincing evidence that these threats were made as lawful predictions. The interroga- tion of Revelorio and soliciting him to attend union meetings to report 'on union supporters are also viola- tions of Section' 8(a)(1) of the Act. Revelorio was shown to be an open and active union supporter. The atmos- phere surrounding the questioning included 'threats of discharge and store closure, which clearly tend to coerce and intimidate. 5. Allegations involving Revelorio and Sandoval Paragraph 15 of the complaint alleges that: In or about late March or early , April 1984, `Re- spondent through Miguel A. Revolorio, at the facil- ity of Respondent described in paragraph 2-above: (a) Interrogated employees about what they thought about-the Union. (b) Interrogated employees about how they in- tended to vote in the union election. Paragraph 25 of the complaint alleges that: - On a daily bases during the month of April, 1984, Respondent, through Luis de Jesus Sandoval, at the facility of Respondent described in paragraph- 2 above: - CARL'S JR. 991 (a) Interrogated employees regarding their union activities and the union activities of their fellow workers. (b) Told employees that Respondent would close the restaurant if they voted in favor of the Union. (c) Told employees that Respondent would call the Immigration and Naturalization Service if they were to vote in favor of the Union. (d) Told employees that Respondent would ter- minate those employees that voted in favor of the Union. As found above in the section dealing with the compa- ny meetings, Revelorio admitted and I find the alleged violations. Similarly, as previously discussed , Sandoval credibly admitted the violations alleged in all but sub- paragraph (a). There was no clear and persuasive evi- dence of any interrogation as claimed and this portion of the complaint is dismissed . The other alleged violations by Sandoval have been found above. 6. Allegations against Ivey Daniels Paragraph 16 of the complaint alleges: (a) On or about April 11, 1984, Respondent, through Mr. Ivey, at the facility of Respondent de- scribed in paragraph 2 above, through Hugo Mal- donado acting as interpreter , interrogated employ- ees regarding their union sympathies. There was no evidence adduced involving Daniels in any interrogation. The allegations concerning Maldonado are discussed below. 7. Allegations concerning Paullins, Voohies, and Segovia Some of the alleged violations involving Paullins also included other supervisors particularly Segovia and Voo- hies. Paragraph 24 of the complaint alleges that: On or about the dates listed below, Respondent, through Ron Paullins: (a) On or about February 17, 1984, through Jea- nette Segovia, an admitted assistant manager, acting as an interpreter; and have: (i) Told employees to forget about the Union, that Respondent would resolve employee prob- lems and that Respondent would get rid of objec- tionable supervisors, in exchange for the employ- ees' abandonment of their support of the Union. (ii) Told employees that Respondent would not accept the Union. (b) On or about April 6, 1984, granted dental benefits to employees in exchange for their aban- donment of support for the Union. (c) On various occasions beginning on or about April 12, 1984, told employees that Respondent would call the Immigration and Naturalization Service if they did not vote against the Union. (d) On various occasions beginning on or about April 12, 1984, interrogated employees regarding their Union activities. (e) On or 'about April 13, 1984, at a meeting for leadpersons, interrogated employees regarding their union activities. (f) In or about the beginning of March 1984, promised a promotion to an employee in exchange for abandonment of support for the Union. (g) Beginning on or about April 12, 1984, on var- ious occasions, instructed employees to report on the union sympathies and activities of their co- workers. (h) Since April 26, 1984, on various occasions, told employees that they had not been promoted be- cause of the Union election. (i) In or about mid-March 1984, told employees that Respondent would close its facility if the em- ployees selected the Union as their collective-bar- gaining agent. Paragraph 23 of the complaint alleges Voohies: 23. On or about the dates listed below, Respond- ent, through Caridad [Voohies], at the facility of Respondent described in paragraph 2 above: (a) On or about April 6, 1984, offered to pay em- ployees' dental bills in exchange for their abandon- ment of support for the Union. (b) On or about April 6, 1984, told employees that if they voted for the Union they would lose all of their benefits. (c) On or about April 6, 1984, told employees that Respondent would close the restaurant if the employees voted in favor of the Union. (d) On or about April 9, 1984, told employees that Respondent would close the restaurant if the Union won a Board-conducted election. (e) On or about April 9, 1984, directed employees to vote against the Union in a Board-conducted election. (f) On or about April 9, 1984, and on April 27, 1984, stated to employees that she knew that they were involved in union activities, thereby creating an impression among its employees that their union activities were under surveillance by Respondent. (g) In or about the beginning of March 1984, promised a promotion to an employee in exchange for abandonment of support of the Union. a. Assertions involving Solorzano In March, Segovia gave Solorzano one of the docu- ments distributed by the Company in its campaign. They discussed the procompany content of the material and Segovia told him what he read was "good, and to aban- don the union." They were discussing their contrary po- sitions when Paullins, walking by, joined in the discus- sion. Paullins and Segovia asked him to continue the dia- logue upstairs in the employee locker room. According to Solorzano, through Segovia as transla- tor, 992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD . . . Ron said to abandon the union for the compa- ny . . . and that he would take away Hernandez and Ken [McGuire] . . . . So, he asked me if I had already organized in other occasions, and I told him "Yes." That he would take Hernandez because of the complaints from the employees about Hernandez and Ken. Solorzano was not sure, but he believed that Paullins said, "They would be better off closing down the restau- rant and not accept the union." At the end of the discus- sion, Paullins said, "that he would not accept the union for anything." Although it could be argued that much of Sandoval's testimony was somewhat altered on cross-examination, this altered testimony consisted principally of yes or no answers to permissibly leading questions . However, the testimony under the circumstances of the the case does not discredit the witness, for context was not clarified. Paul- lins admitted there was more than one such conversation and Segovia usually acted as his translator. During one of 'these conversations , Solorzano asked Paullins why Hernandez was not disciplined for hitting one of the em- ployees in the past, yet now they wanted to resolve ev- erything. Paullins replied that the Company's main office had not known of the incident and that is why no action was taken. Segovia, whose testimony previously was found not credible, testified she translated for Paullins in a meeting about the Union with Solorzano , and claimed that McGuire and Hernandez were not mentioned . She said these conversations involved why Solorzano wanted the Union. Although much of Segovia's testimony was found unreliable, this admission that Respondent knew and in- quired about Solorzano's advocacy of unionization is credited. Paullins admitted he had a conversation with Solor- zano during the campaign and initially indicated he could not recall the context of the conversation. After being asked a leading question , he said he could recall the conversation and volunteered he had independent recollection of it. At another juncture in his testimony, Paullins admitted that he could not separate those events he recalled independently' from recall- based on having portions of the transcript read to him by Respondent's Counsel in preparation for the proceeding . Consequently, his denial is not credited . Also, Paullins appeared more interested in denying wrongdoing than testifying about the actual events. In conclusion , I find that Paullins promised to remove two unpopular supervisors from the Store64 if the employees would abandon their organizing effort. I note the similarity of this promise to that made by Segovia in the "Deli," which lends credence to Solor- zano's testimony. I also conclude that he said , "he would not accept the union for anything ." Because Solorzano was unsure if Paullins threatened to close the Store in s4 As indicated above, all parties agree that the employees'. dissatisfac- tion with McGuire and Hernandez was the genesis of the union organiz- ing campaign the event the Union prevailed in the election, I find that this testimony does not warrant "finding a violation. b. Testimony of Flores Flores claims that about a week after being asked to leave the meeting,66 she asked Paullins whether she was a leadperson and he ostensibly told her that, when they made her a leadperson, the papers did not go through and that she would receive the promotion after the elec- tion, the - election "froze everything." After some prompting, Flores also claims Esquivel "said that they wanted my vote to count for the Company, and if I had the leadperson, that I couldn't vote because I was part of management and I couldn't vote." Esquivel told her to take the name badge off and keep doing her work about a week before the election. Segoiva took off her leadper- son name tag. Esquivel's statement is not alleged to be. a violation of the Act, nor is Segovia's action. About 2 weeks after the election, Flores claims she asked Paullins, in the presence of Ruppel, to send in her promotion papers since the election was over. Paullins allegedly replied that he would make her "a leadperson after all the union problems were over." Paullins denied ever dealing with Flores as a leadperson, but did not spe- cifically deny her claim that he told her the promotion was delayed because `of the "union problems." c. Discussion The issue therefore is whether Paullins refused to process Flores' promotion , and if such refusal is violative of the Act.66 There was no showing that the store manager recom- mended Flores for a raise and/or promotion which Paul- lins thus refused to process: The evidence also does not establish that such a recommendation was in prospect but delayed because of 'the union election . There had been-a change of manager, and the General Counsel never asked Esquivel if he intended to promote Flores nor in any other manner established that such a promo- tion was forthcoming. Even assuming arguendo that Paullins made the state- ment as alleged, after the election, it merely substantiates the finding that Flores was not a leadperson . The deci- sion to delay consideration of a 'promotion was not couched as a threat or shown to be otherwise coercive, intimidating, or in any other manner- violative of the Act. The statement was not put in terms that made it depend- ent ou the defeat of the union organizing effort. I shall therefore dismiss this allegation of the complaint. ss Esquivel claims that at the time she was asked to leave the meeting Paullins told her to "Go talk to your sister " Flores did' not corroborate Esquivel Paullins told her and later the assembled employees that Flores was asked to leave because she was not a leadperson and did not appear on the books as a leadperson. According to Segovia, Flores claimed she was a leadperson before the meeting, but left without protest The com- ment ascribed to Paullms was not alleged as violative in paragraph 24 of the complaint I therefore find that this matter was not fully and fairly tried, and will not be considered herein es It is noted that neither brief addressed this issue CARL'S JR.. , d. Testimony of Bonilla At the outset, I find that Bonilla's testimony, even if credited in its entirety, does not warrant finding a viola- tion of the Act by Paullins. Bonilla said Paullins promoted him to leadperson be- cause he deserved the position and the promotion was long overdue; also the promotion was the only way he could get a raise. At another time, Bonilla was told that if the Union won the election and the Company was forced to pay more than it could afford, it would have to close. There was no showing that the statement was other than permissible prediction. e. Testimony of Guizar During the union organizing campaign, Guizar walked past Paullins, who was talking with Guerrera about some anticompany literature. Paullins engaged Guizar in the conversation. Guizar translated same anticompany mate- rial for Paullins.67 Paullins stated that the allegations in the document were lies. He then got pen and paper and performed a financial analysis of the Store's operation; demonstrating that if the Union won the election, "they're going to ask for too much and you see all this month we can't afford it, because they're gonna ask for too much to pay you guys and everything so we have to close the store because we're not going to have enough money to cover all of this that he was showing me." The General Counsel failed to show why this was other than a permissible prediction, and allegations based on this testimony are dismissed. Guizar also spoke to Segovia about anticompany liter- ature.68 Her testimony about this conversation is un- clear. It appears that Segovia said, "You guys got to stop everything because we're gonna close the store." Since this discussion centered on anticompany literature as well as the Company's response thereto, I find that this con- versation was similar to that with Paullins and is not vio- lative of the Act. In support of this conclusion Guizar's next comment, "So then, Ron came over and he tell me that if I have, you know, some questions, talk to him or Jeanette [Segovia] longer." An unlawful threat of plant closure predicated on union activity, rather than on lawful prediction of a possible consequence, would not need further discussion or explanation. Although initially unsure of the date, Guizar said that on 6 April, she asked Rafique if she could go home early because she had a toothache. He granted permission. After changing ^ her clothes, she encountered Caridad Voohies,69 an assistant manager, and an admitted super- visor. Voohies initially talked to her about the Union, saying that she should help stop the organizing cam- paign; that Voorhies knew she was involved. Voohies also told her before 26 April she should talk to the em- ployees and tell them to vote no; that she should try to 67 R. Exh. 7 s$ The Union distributed some literature as did an organization known as "Casa del Obrero" which was referred to as a workers' coalition for Central Americans. The Union disclaims preparation and distribution of most of the anticompany literature , including R. Exh 17 This disclaimer was never refuted. 60 Voohies did not appear and testify . Her absence was unexplained 993 stop everything because the Store would be closed if the Union came in. I find that Voohies made this statement. The lack of controversion and Voohies' unexplained fail- ure to testify warrant this conclusion. Guizar told Voohies she was going home because she had a toothache. Voohies asked her why she did not go to a dentist and Guizar replied that she did not have any money. Voohies later asked her why she did not use her insurance. Guizar replied she did not have enough hours for coverage to vest. Voohies told her to wait a minute, and returned with Paullins, who said she did not have any insurance but she would be covered. Guizar admit- ted she was told to go to the dentist, the insurance would cover it, and Paullins did not mention or allude to the Union. The Company's records clearly show she did qualify for and had insurance at this time. Guizar admit- ted she never received notification that her insurance coverage was terminated. I find that the documentary evidence and Guizar's admissions indicate that she at the least misunderstood Paullins and there was no granting of dental benefits in exchange for her abandonment of support for the Union. As noted by Respondent in its brief, Guizar may have been under the mistaken impres- sion that since her hours were cut she lost some benefits. In any event, the allegation arising from this incident is dismissed for lack of persuasive evidence. After she went to the dentist, Guizar again spoke with Voohies. Voohies called her over and repeated for the third or fourth time, a request that Guizar help her "then she said everybody had been talking about me, like a good employee. The customers like me, that I was .. . good . . . . Then she tell me that I should be a leadper- son and I refused two times." Approximately 2 days later, about 12 April, Voohies again asked Guizar to become a leadperson saying that she would have more hours, more benefits, and her job would change; that she would not have to be on the cash register and could tell others to mop, or sweep. Voohies then asked Guizar to help her inform the employees that if the Union became their representative, Respondent would close the restaurant. Guizar agreed to help but re- fused the promotion. Later in the day, Guizar overheard Paullins telling Ruppel that she declined the promotion because she was a union supporter. After overhearing this conversation, she told Voohies, during another at- tempt to convince her to become a leadperson, that she would accept the promotion. Voohies then brought her some documents that Guizar executed .70 The first time Voohies mentioned the Union to Guizar, she told Guizar she thought it would be best for every- one if the employees voted no and -hoped if Guizar agreed, she would assist in convincing the employees to vote no. This uncontroverted testimony was given in a clear and forthright manner and is credited. Soliciting employees to persuade others to vote against the Union is violative of Section 8(a)(1). Reeves Bros., 277 NLRB 1568 (1986). However, the complaint did not allege Voo- hies committed this violation and it cannot be found to 70 The following day, 13 April, Paullms told Guizar Ruppel wanted to talk to her. The conversation with Ruppel has been found to have unlaw- fully created the impression of surveillance. See below 994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have been fully and fairly tried. The General Counsel did not amend the complaint to include this event as an alleged violation and there is no basis to conclude Re- spondent would not have attempted to, refute any such claim. Therefore, it will be considered as background evidence only inasmuch as there was, no objection to its admission. In sum, I find Voohies has violated Section 8(a)(1) of the Act by telling employees Respondent would close the restaurant if they voted in favor of the Union, and created the impression of surveillance by telling Guizar she knew she was involved in the Union. The other alle- gations made in paragraph 20 of the complaint are un- supported and paragraph 20, subparagraphs (b), (d), (e), and (g) are dismissed. Paullins, through Segovia acting as an interpreter, also violated Section 8(a)(1) of the Act by promising to remove objectionable supervisors if employees aban- doned the Union's organizing effort; 71 telling employees that Respondent would not accept the Union ;72 and in- terrogating employees about this union activity. The other allegations of paragraph 25, specifically subpara- graphs (b), (c), (f), (h), and (i) have not been proven by a preponderance of the credible evidence and are dis- missed. The allegation in subparagraph (g) that on vari- ous occasions Paullins instructed employees to report on the union sympathizers and activities of their coworkers is found to have been demonstrated by the testimony concerning Respondent's action during the Company's meetings. Respondent may argue that the evidence of the meetings does not clearly attribute the actions to Paul. lins. The credited evidence does attribute this activity to Respondent's admitted supervisors and agents. As such, they were fully aware of the issue; which, I find, has been fully litigated.? 3 8. Allegations concerning Jaime Martinez Revelorio testified that in March Jaime Martinez, an assistant manager, told him Ruppel instructed him to ask employees whether they were prounion or procompany and how were they going to vote. Martinez informed him that he was to tell the employees how to vote; to vote for the- Company. Martinez said he wanted to be sure; "Otherwise Raul was' going to run them out ... . To fire them." According to Revelorio's undisputed tes- timony,74 he inquired how the employees would vote, but did not relay the discharge threat. Martinez directed Revelorio to make these inquiries and threats to several named employees, including Palma. Martinez made this request several times. Sometimes the request came while they were working, at other times during lunches, On some occasions, Martinez would watch him follow his directive from a distance of about 50 feet.75 Revelorio 71 Gathff Business Products, 276 NLRB 543 (1985), and C. Markus Hardware, 243 NLRB 903 (1979) 72 Id and Southern Illinois Petrol, 277 NLRB 160 (1985). 73 American Stores Packing Co., 277 NLRB 1656 (1986), holding that directing employees to report on other employees is clearly a violation of Sec 8(a)(1) of the Act Southern Illinois Petrol, 277 NLRB 160 (1985).' 74 Martinez did not appear His absence was unexplained. 7s Revelorio's affidavit corroborated this testimony. never reported back the employees' true feelings if they were prounion. As noted above, directing an employee to persuade other employees to vote against the Union is violative of Section 8(a)(1) of the Act. Reeves Bros.,, supra, 277 NLRB 1568 (1986). 9. Other allegations concerning Segovia and allegations about Maldonado The complaint alleges that: 17. On or about April 25, 1984, Respondent, through an agent, speaking through Jeanette Sego- via, who was interpreting, at the facility of Re- spondent described in paragraph 2 above: (a) Told employees that other employees - had been fired due to their support of the Union. (b) Interrogated employees regarding their -sup- port of the Union. 18. On or about the dates listed below, Respond- ent, through Jeanette Segovia,,at the facility of Re- spondent described in paragraph 2 above: (a) On or about March 22, 1984, told employees that they were suffering harsher working conditions and that employees had been terminated because they were involved in union activities. (b) ' In or about late March or early April 1984, told employees-that it would close the facility if the employees selected the Union as their collective- bargaining representative. 19. On or about March 12, 1984, Respondent, through Jeanette Segovia, at 321 Bixel Street, Los Angeles, California, during a Union meeting, told employees that they should forget about the Union because Ken McGuire had stated that he would close the restaurant if the Union were to come in. Paragraph 16 of the complaint asserts that: (a) On or about April 11, 1984, Respondent through Mr. Ivey, at the facility of Respondent de- scribed in paragraph 2 above, through Hugo Mal- donado acting as an interpreter, interrogated em- ployees regarding their union sympathies. (b) On or about September 25, 1984, Respondent, through Hugo Maldonado , informed employees that Raul Esquivel would be terminating employees be- cause of said employees supporting of the union. Maldonado was a leadperson at' all times pertinent. He is currently employed by Respondent as an assistant manager. Paragraph 19 involves the conversations at the Deli. There is no showing Segovia ever attended a union meeting or was at its union hall . This mistake in the complaint does not introduce such error or vagaries as to warrant finding the allegation was not fully and fairly tried. Respondent, in conducting its defense, clearly dem- onstrated understanding of the allegation. The events at the Deli have been previously discussed. Based on the credited testimony of Solorzano and Na- jarro, it was found that Segovia told employees that they should forget about the Union for if the Union prevailed, CARL'S d;R, the restaurant would be closed. This threat is clearly a violation of Section 8(a)(1) of the Act. Najarro also testified that Segovia told him "that we should forget about the union." This statement is too am- biguous to support finding a violation. It may have been made in a context free of coercion, such as a permissible prediction. Segovia's involvement in Paullins' interroga- tion of Najarro has been previously discussed; as had the allegation in paragraph 17(a) of the complaint that em- ployees were told during the Company's meetings that other employees had been fired due to their support of the Union.76 Guizar-testified credibly that about 3 weeks before the election, Segovia talked to her in the office about some company literature. Paullins and other supervisors were present. Segovia asked her if she saw the posted compa- ny campaign literature. During the conversation, Segovia told her "you guys got to stop everything because we're gonna to close the store." Guizar replied, "Well, we're not gonna lose more than we're losing right now, work- ing just a few hours a day." Segovia responded that she did not care because she had another job, but that Guizar should consider the others and stop the union or- ganizing effort. This testimony is ambiguous at its best. The lack of context requires, the conclusion that the testi- mony does not support the' allegation that Segovia threatened harsher working conditions because of the union organizing campaign. Najarro's testimony does not support the assertion that Segovia told employees that certain individuals lost benefits or otherwise suffered be- cause they were involved in union activities. I conclude that the General Counsel has not shown, save for what occurred at its company meetings that Segovia commit- ted the violations alleged in paragraph 18(a) of the com- plaint, and' it is dismissed. Bonilla testified that in early April, Maldonado, who attended a, union meeting, said, "to be careful, that they already have fired Luis Najarro, and later on it was going to be Antonio Solorzano, and then after that it was going to be me." Segovia told Maldonado to be quiet, that these were matters he should not talk about. Bonil- la's testimony does not link union activity with the dis- charges. Segovia and Maldonado denied making these statements saying that employees were or were going to be terminated because of their union activity. Palma testified that Maldonado told him Esquivel wanted to fire him because "I was in the Union and [Es- quivel] didn't like it .. ..°" Maldonado denied making the statement. Maldonado's denials are not credited based principally on demeanor. Maldonado appeared more concerned with presenting facts favorable to his employers than testifying candidly. For example, he vol- unteered information. Lack of good recall was also ap- parent. For example, he said Ruppel attended only one meeting for leadpersons and supervisors regarding the election. His testimony also contained inherent inconsist- encies. That similar threats were made by other agents of Respondent lends credence to the testimony of Palma and Bonilla, and I find Maldonado made the threat. That Ivey was mentioned in paragraph 16(a) of the complaint 76 See, for example, testimony of Gwzar 995 does not warrant a finding of lack of due process. The complaint was sufficient to apprise Respondent of the al- legation . There was no clear and convincing showing that Maldonado interrogated employees as alleged in paragraph 16, subparagraph (a) of the complaint. In sum, I find Maldonado threatened discharge in vio- lation of Section 8(a)(1) of the Act. The allegation in paragraph 16(a) of the complaint asserting unlawful in- terrogation is dismissed. 10. Allegations concerning Mendoza Paragraph 14 of the complaint alleges that Mendoza interrogated employees regarding who they were going to vote for in the union election. Bonilla, as indicated above, testified that, on the day of the election, he overheard Mendoza telling employees that they had to,vote for Respondent and where to mark their ballots with an X to accomplish this task. He heard several supervisors tell employees on election day to be sure to vote for the Company. Mendoza admitted he was directed to report to work early on 26 April and when he did, he explained the ballot to the counterperson and said, "that f hoped,they would vote for the Company be- cause I thought there was no problem there." During another incident, Mendoza saw some prounion literature in the kitchen area and asked Bonilla who dis- tributed it. Bonilla replied,Solorzano. The evidence does not support the allegation, the requisite coercion was not demonstrated; and paragraph 14 of the complaint is dis- missed .7 7 11. No-Distribution, no-solicitation rule Paragraphs 9, 10, and 11 of the complaint allege: 9. Since on or' about February 1984, in its Em- ployee Handbook issued to all of its employees, Re- spondent has maintained the following rule: To avoid disruption or disturbance of CKE and its employees, the following rules apply to solicitation and the distribution of literature on CKE property or by CKE employees. Failure to comply with these rules may result in disciplinary action up to and including dismissal. 1. Outsiders-Persons not employed by CKE may not solicit or distribute literature on CKE property at any time, for any purpose, except as set forth in paragraph 3 below. 2. CKE Employees-An Employee shall not solicit or promote support for any cause or orga- nization during the employee's working time or during the working time of the employee or em- ployees at whom such activity is directed. No employee shall distribute or circulate any written or printed material in work areas at any time, or during the employee's working time or during the working time of the employees at whom such activity is directed. For the purpose of the Rule, 77 As noted above, there was no allegation of unlawful electioneering in the complaint 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "working time" does not include meal-time or break-time. No employee shall enter or remain in non-public work areas for any purpose except to report for, be present during, or conclude the employee's work shift. 3. Application of this Rule-In applying the above, in restaurants patronized by,the public and by employees during their authorized rest break and meal periods, there is no prohibition with regard to solicitation between employees and other employees and/or between employees and non-employees as long as; all employees and non- employees involved are patrons of the facility who are complying with all rules of conduct governing customers; and all involved employees are on authorized rest breaks or lunch break, or it is before or after their work; and there is no dis- ruption of the business, its facilities, guests or cus- tomers. 10. On or about March 15, 1984, Respondent, acting through Michael , at the facility of Respondent, described above in paragraph 2, pro- mulgated and since said date has maintained a rule prohibiting employees from distributing any peti- tions on Respondent 's premises. 11. In or about the beginning of March 1984, Re- spondent, acting through Ken McGuire, at the facil- ity of'Respondent described above in paragraph 2, promulgated and since said date has maintained a rule prohibiting the distribution of any union litera- ture'on Respondent's premises. The Company's rule 'is not on its face, violative of the Act. The testimony adduced in support of these allega- tions is discussed in the section dealing with Solorzano's suspension and discharge.78 E. The Alleged Violations of Section 8(a)(3) of the Act The complaint alleges that Respondent violated Sec- tion' 8(a)(3) and (I) by discharging Luis Najarro on 22 March, Juan Solorzano on 12 April, and Eligio Palma on 28 September; and by failing and refusing to reinstate these employees because they engaged in activity pro- tected by Section 7 of the Act. Also, it is alleged that Solorzano and Guizar were suspended because they en- gaged in protected concerted activities. _ Respondent, while admitting the discharges and suspensions, denies knowledge of these employees protected concerted ac- tivities and argues that the disciplinary actions were taken for just cause. Section 8(a)(3) of the Act provides that "[i]t shall be an unfair labor practice for an employer by discrimina- tion in . . . any term or condition of employment to . discourage membership in any labor organization . . . by discharge or suspension. The statutory criterion of unlawful motive, once established, establishes a violation of the Act unless the Respondent can demonstrate, as an affirmative defense, that the action would have been 78 The statement made by supervision to Najarro about this rule has previously been considered taken even in the absence of protected conduct. Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied,455 U.S.,989 (1982). Cf. NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). In general, to establish a prima facie case of discrimi- natory discharge, the General Counsel must establish that the discriminatee engaged in protected conduct, which the employer knew of or suspected, and that this protected activity was a motivating factor in the decision to discipline the employee. Employer knowledge of the employees' protected activity need not be -based on direct evidence, but can be inferred from the facts and circumstances surrounding the employer's action. Motive may be inferred from circumstantial as well as direct evi- dence. The individual allegations of discriminatory disci- pline will be examined within this framework. 1. Discharge of Najarro Najarro was hired in March 1982 as a busboy. About 9 months later he was transferred to the kitchen as a cook because of an altercation he had with Roberto Hernan- dez. He claimed without refutation that Hernandez struck him. Segovia believed Hernandez kicked him and he threw a can opener at Hernandez. She warned him about the incident; however, there is, no record of this warning. Hernandez was not disciplined for the inci- dent.79 Najarro was active in the organizing campaign and distributed union literature outside the Store several times. As previously noted, on one occasion he was called into the office and McGuire inquired if he "knew something about the Union . . . and . . . who was in- volved in the matter of the Union." The events leading up to, Najarro's discharge, as well as the discharge, were the subject of conflicting and in- consistent testimony. Considering the size of the employ- ee complement on each shift, the active campaigns by both the Union and its supporters and'the Company, the open solicitation of Segovia's assistance in organizing,by Najarro and Solorzano, the interrogations of Solorzano and Najarro, the attempts of the Company to ascertain who was prounion, and the unlawful threats of discharge found above, I find that Respondent knew of their union activity. Najarro claims that on 19 March, the day before the incident that led to his termination occurred, McGuire placed him under close scrutiny. McGuire criticized the manner in which he was preparing hamburgers, saying he was placing the meat on the bun upside down. The hamburgers were prepared on a machine that cooked it so that there were stripes similar to grill" marks on only one side of the patty. Everytime he followed McGuire's directions he was told it was wrong and to reverse the side he placed facing up. After the second critique, McGuire changed his work station ' to a location- where he could be more closely observed. Najarro claims he became flustered, and asked for permission to go home. 79 The Company contends, without argument to the contrary, that by the time responsible company officials became cognizant of the incident months after the occurrence, the passage of time so obfuscated the evi- dence it precluded the meaningful unposition of discipline CARL'S JR. He did go home. There are a number of inaccuracies in the account. Initially, it is clear from his testimony that he was poorly trained for his job of assembling hamburg- ers. The lined side of the patty was to be placed on the bun facing up so it was visible to the consumer . Najarro testified that the proper way to assemble a hamburger was to put the lined side of the patty facing down so that the lettuce and other condiments were on top of the un- lined side. Another area of confusion is his claim McGuire criticized his method of assembling hamburgers on 19 March. The Company's "Record of Verbal Warn- ings"80 indicates the incident occurred on 10 February. The record does not indicate` that Najarro was subjected to any other discipline for the incident. McGuire's version of the events do not differ substan- tially except for the discipline imposed . During a routine inspection tour, McGuire observed that the cooks were incorrectly assembling hamburgers by placing the striped side of the patty facing down. He instructed them in the proper manner of assembling the hamburger . All the cooks except Najarro started doing their job correctly. Shortly thereafter, McGuire returned to check on the cooks and noted only Najarro continued to assemble the hamburgers incorrectly; he again instructed him to do it with the stripes facing up. McGuire moved Najarro to another work station where he could be more closely ob- served.81 McGuire left, then returned and claims Na- jarro still was not complying with his instruction, per- haps due to a failure in communication. To get his atten- tion, McGuire said, he sent Najarro home. As noted above, there was no showing that Najarro was disci- plined beyond the verbal warning, contrary to McGuire's claim he suspended him. Najarro had received several verbal warnings after the 10 February incident.82 On 28 February he was late and not dressed for work so he was sent home by McGuire. On I and 6 March unexcused absences were noted. These verbal warnings were not alleged by Respondent to be predicates for Najarro's termination. On 20 March Najarro received a verbal warning for receiving a 20-percent discount, when he purchased orange juice, without showing his discount card . As pre- viously mentioned the Company has two discounts, one 20 percent and the other 50 percent. The testimony of Paullins describing the documents will be that relied on in making findings for he was the most experienced man- ager. According to Paullins, the 50-percent discount is for employees while on duty, they are entitled to pur- chase all food products , at a 50-percent discount except sodas, which ' they receive free. On duty includes both lunch and breaks as well as one-half hour before and after work. There is no card issued for the 50-percent discount and employees do not need to show any docu- ments to receive it. The 20-percent discount is a benefit given employees that meet length of service eligibility requirements. After meeting this requirement , they are issued a card which 80 R. Exh 29 81 This action was not alleged to be a violation of the Act transcript was very poor, but not so poor as to render it unusable. 997 they can use in all of Respondent's restaurants when they are not working; it can be used for purchases for their families. It is company policy that, before the discount can be given, the cashier ask for and be shown the card. According to Segovia and Guizar; this policy was not followed at Store 100; employees who were known to the cashiers were not asked to show their cards. Neither Guizar nor Segovia testified that McGuire, during his short tenure as manager, required adherence to the policy, but he was known to be a stricter manager than Clemens. Respondent did not place into the record any warnings issued during McGuire's tenure as manager for breaches of the 20-percent discount policy. On 20 March Najarro purchased orange juice at a 20- percent discount without showing his card. Najarro claims he was on break, which would have entitled him to a 50-percent discount. The Company's computer records, which would have confirmed or refuted the claim, were not placed in evidence. However, it is admit- ted that Najarro sought and received a 20-percent dis- count and did not show his card. McGuire observed the transaction and asked the cashier if she had asked to see the card; she replied no. She also said, according to McGuire, that Najarro did not show the card as required by company policy. McGuire and Jaime Martinez then approached Najarro in the dining room,83 and asked him if he showed his card. Najarro admitted to McGuire he did not show his 20-percent discount card at the time of the purchase; that he had forgotten it at home; and said he would bring it the next day. Najarro also asked why he had to show his card when everyone knew him. McGuire used Jaime Martinez84 as an interpreter during this conversation. He instructed Martinez to give Na- jarro a verbal warning for this 'breach of company policy. The warning was filled out by Martinez. The events that followed this conversation are the subject of the dispute regarding Najarro. Najarro claims that at this juncture he went to the changing room, for it was time to go home. McGuire claims that as he was walking over to the area near the cash register where the verbal warning book was kept, he was followed by an agitated Najarro. According to McGuire, Najarro followed him and was yelling at him in a very loud voice, used the word "puto" and what he took as the insulting gester of ex- tending the middle finger of his hand. McGuire under- stood the word "puto" to be very insulting; translating it as "male whore."85 McGuire, following what he under- stood to be his orders during the union organizing cam- paign, did not immediately fire Najarro, but suspended him pending consultation with Paullins.86 83 McGuire indicated he talked to Najarro in the dining room Appar- ently, some employees routinely took their breaks and ate lunch in the dining room 84 As noted above, Martinez did not appear and testify and his absence was unexplained 85 It is noted that the reporting service failed to accurately translate the phrase "male whore" in the transcript at all times. In general, the 82 No verbal warnings were recorded before 10 February The system 86 McGuire also said Hernandez later told him Najarro used a lot for recording verbal warnings before that date, if any, was not clearly more profanity This uncorroborated, unspecific testimony is found not shown on the record Continued 998 DECISIONS-OF THE NATIONAL LABOR RELATIONS BOARD Paullins testified that on 20 March, both McGuire and Segovia telephoned him and said that Najarro had called McGuire a male whore, gave him the finger, and acted very belligerently toward him . Segovia did not corrobo- rate Paullins' testimony, disclaiming any involvement in, the incident. The cashier who gave the discount without asking for Najarro's discount card also received a verbal warning. -Najarro claims that he went into the change room and shortly thereafter, McGuire knocked on the door. Na- jarro opened the door, and had Spanish language union material , in his hand, which he threw to the floor. McGuire admitted he picked it up , tore the material up without reading it,' and threw it away. McGuire does not speak or, apparently, read Spanish . Najarro -then went home. He was not warned or disciplined for littering the change room. McGuire gave a similar account of this event but did not state the day it occurred . On 22 March Najarro reported for work as scheduled. , After working for about 1 hour he was asked by Segovia to go to the office. When he got to the office, McGuire and Paullins were there and Segovia was to act as interpreter. 117 Ac- cording to Paullins, he interviewed Najarro and others that day and determined to discharge Najarro who ad- mitted calling McGuire a "puto" and even demonstrated giving the finger to Paullins and claiming that is the way he points. Najarro disclaims admitting he called McGuire a "puto" or giving him the finger. At the time he was terminated he was given a termina-, tion report.88 The report stated that on 20 March, Na- jarro engaged in "[i]nsubordination verbal abuse and pro- fanity used toward mgr . and managerial staff in guest presents [sic]." After the interview and discharge , according to Na- jarro, but before he left the Store, he talked to Segovia who told him, "I told you that you should be careful with that matter of the union ." Najarro told her he knew he was being fired because of the Union, not because of the things he was accused of. Segovia repeated that she told them they should be careful . Segovia denied making the comment . I find for the previously stated reasons that Najarro's version of the conversation is the more credible. Similarly, based principally on demeanor , Najarro's version of the conversations with McGuire and Paullins is also credited, even though there are some inconsisten- cies in his testimony . These inconsistencies are not of the nature and importance to warrant discrediting his testi- mony. On the other hand, McGuire and Paullins, as found above, are not generally credible. With regard . to the Na- jarro discharge, McGuire prepared a written description of the incident on 20 March . The written report, which was signed by both McGuire and Martinez , states: probative of Respondent's claim that it had good cause to discharge Na- jarro unrelated to his concerted protected activity These other claimed profanities were not asserted to be the basis for Nalarro's termination 87 Segovia denied the role McGuire thought Ruppel was present and said he was positive Segovia acted as interpreter Paullins could not recall who acted as interpreter a5 G C Exh. 6 We then approached Luis Najarro and asked him for his 20% discount which he did not have. We then asked him if he understood the 20% discount policy. He replied yes. I then informed Jaime Marti- nez to write both Sandra Amadordor [the cashier] and Luis Najarro in the verbal warning cards for violation of the 20% discount policy. When Jaime wrote Luis up he asked why? Jaime then explained that 20% are given with a card, at which time he became enraged at which time pro- fanity occured [sic] in front of guests . "Puto" was clearly heard by 'Mike Guerrera, Jaime Martinez, Jim McGuire and the guests . I turned to Luis and told him that I understood that word and asked him to punch out and go home ... '. The written version did not mention anything about Najarro giving McGuire the finger. This omission was unexplained. Two supervisors who ostensibly heard the use of profanity, Guerrera and Martinez , were not called to corroborate McGuire. This unexplained failure war- rants the drawing of an adverse inference that if called they would not corroborate McGuire. Martin Luther King Sr. Nursing Center, 231 NLRB 15 fn. 1 (1977). Mar- tinez was the only witness to the event who understood what Najarro was saying. Seligman '& Associates, 273 NLRB 1216 (1984). Najarro, Respondent admits, had profound difficulty understanding McGuire when he was instructing him how to assemble hamburgers and recog- nized the need for interpreters. McGuire also claims he understood only one word, "puto." However, he 'claimed without corroboration other profanities were used' by Najarro. This tendency toward exaggeration also serves to discredit McGuire. McGuire's assertion that he noticed many breaches of the 20-percent policy among the employees and com- menced enforcing it is also uncorroborated. Guizar and Segovia in fact refuted this claim testifying that, once known to the cashiers, employees never showed their discount cards. Although much testimony was elicited about McGuire's strictness, none mentioned the 20-per- cent discount rule. If he warned others, he, according to his own testimony, would have recorded the warnings in the "yellow" book. No such warnings were proferred. This material was solely within the control of Respond- ent. Master Security Service, 270 NLRB 543 (1984). The written version of the incident also differs from McGuire's testimony in that it states the tape was re- viewed and McGuire testified he did not review the cash register tape that he did not have the appropriate key at that time to- determine if a 20-percent discount was given. Another basis for' questioning McGuire's testimo-' ny is that the usual company record of the incident on 20 March is that only a verbal warning was given for get- ting a 20-percent discount and not showing the card. There is no recordation at the time this warning was issued, that Najarro was suspended for cursing at McGuire and giving him the finger . This failure tends to support Najarro's version of the event that he did not curse or otherwise engage in improper behavior after being warned of his breach of the 20-percent rule. CARL'S JR. Najarro's reporting for work on what apparently was his next scheduled workday also tends to support his tes- timony. If he was suspended , ` there was no showing for how long, which I find is improbable . Another inconsist- ency in McGuire's testimony is his claim employees were not allowed to consume food in the dining room while in uniform. Najarro's claim he was in uniform is unrefut- ed.89 Several witnesses testified they took breaks in the dining room. This testimony is corroborated by McGuire who said he found Najarro consuming the orange juice in the dining room near the , television set. He did not recall if other employees were also at the table. Another inconsistency in McGuire's testimony is that Najarro was afforded the opportunity to give his side of the story on 22 March, then he said the termination report was probably filled out prior to the discussion, which McGuire thought occurred the next day rather than 2 days later. This lack of clear recall is coupled with a strong tendency to engage in surmise, further dis- crediting his testimony . For example, he testified Sandra the cashier was upset over receipt of the verbal warning and asked to speak to Paullins . The basis for stating she was upset was not adduced . He then said she met with Paullins but was unsure if he was present. On what he predicated the statement, Paullins met with her about the incident is not a matter of record . The lack of ability to determine what is fact and what is surmise also impairs McGuire's credibility. Paullins' apparent corroboration of McGuire's version of the event is equally incredible. After giving a detailed rendition of the' interview, Paullins tested ' he did not recall, what someone reported Najarro had done on 20 March, he did not recall who called him or the date, he did not recall who else was present during the interview with Najarro and, although there would have been an in- terpreter, he does not know who he used, and he does not recall what he told Najarro or what Najarro told him. These statements were made after Paullins gave de- tailed testimony about the incident . These admissions against interest are much more credible than his re- sponses to many leading questions and his other testimo- ny on direct examination which was based, as found above, on hearing some of the testimony of others rather than his independent recollections. As found above, the credited evidence of other wit- nesses demonstrate that Respondent threatened to dis- charge union adherents and Ruppel indicated Najarro was discharged because he was a prounion activist. These statements, Najarro's testimony , the timing of the discharge in the midst of the Company's antiunion cam- paign, and the apparent pretext in Respondent 's action, leads me to conclude that the General Counsel has estab- lished a prima facie case of a violation . Respondent failed to establish through credible testimony or otherwise that the termination would have occurred absent Najarro's concerted protected conduct. Although Respondent established that ii has dis- charged employees for using profanity in the past, it has as If Najarro had changed, then according to McGuire he could not have purchased the orange juice and immediately thereafter consumed it on the prermses. 999 failed to establish by credible evidence that Najarro en- gaged in the alleged misconduct . I find the claimed mis- conduct was pretextual and the discharge of Najarro was motivated by his union activities, in violation of Section 8(a)(3) and (1) of the Act. 2. Discipline of Juan Solorzano Respondent hired Solorzano as a busboy in August 1983 . He was suspended by the Company on 17 March and 11 April and discharged on 12 April. Solorzano was considered by both the Union and the Company as a leading union activist. For example, Segovia admitted that Solorzano was the only employee she was asked to escort to the office by Paullins so he could inquire why he favored the Union . When Solorzano replied he could get higher wages, Paullins tried, as discussed above, to demonstrate by use of operating data, how such wages could result in operating losses and the possible closure of the restaurant. Solorzano clearly stated he still favored union representation . Another predicate for finding knowledge of Solorzano's prounion stance is the use of the chart during the Company's meeting, where his and the other employees' union proclivities were the subject of daily discussion . The credited testimony regarding threats to fire union activists and naming Solorzano as a target, further buttress the conclusion that Respondent knew of Solorzano's leading role in the union organizing effort. On 15 March Solorzano was asked by,^the Union to attend a hearing at the local Board offices on the Union's representation petition. He requested and received per- mission from Segovia to attend the proceedings that morning. After reporting first to the union office, he learned the hearing was cancelled because the parties had agreed to hold an election. After spending about half an hour at the union hall he returned to the restaurant around 11 :30 or 12 noon. He returned with a petition seeking reinstatement of a former employee, Luciano Gonzalez. Gonzalez had been discharged for the use of profanity. The record does not clearly show when Solor- zano knew the reason for Gonzalez' discharge. On his return to the restaurant, although his shift normally ended around 4 or 5 p.m., he was informed his services were not required that day.9 m Before leaving Solorzano went upstairs to the locker room to gather some belongings and check his work schedule. He encountered four employees whom he as- serts were on a break . McGuire observed him explaining the petition to the four other employees, and asked him if he was working. Solorzano said no. McGuire told him he had no business there, and instructed him to leave. Solorzano had gone upstairs in the restaurant on other occasions when he was not working to look at the work schedule. This activity was not shown to have been out of the ordinary or, in the circumstances extant on 15 March, in clear breach of company policy. The Compa- ny does strictly limit access to the upstairs portion of the facility, for it keeps large sums of money in the office that is near the locker and break rooms. Paragraph 2 of 9' There is no allegation of impropriety regarding this decision 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Respondent's solicitation and distribution rule pro- vides: "No employee should enter or remain in non- public work areas for any purpose except to report for, be present during, or conclude the employee's work shift."91 Paragraph 3 of the rule, however, does permit employees to solicit and distribute material between themselves before and after work, if "there is no disrup- tion of the business, its facilities, guests or customers." Because the nonpublic work areas are the least "disrup- tive" locations, it would appear that there is some lack of clarity in the rule and that Solorzano's actions, including spending a few minutes explaining the petition, were not a patent breach of this rule. Solorzano went downstairs and as he was leaving saw Mike Guerrera, JoAnn Carini,92 and Leticia Plitron sit- ting together. He asked Plitron to sign the petition. So- lorzano claims, without corroboration, that Plitron had finished working. 93 Guerrera and Carini commented that Solorzano's actions were not legal. Plitron signed the pe- tition and Solorzano left. Carini, according to McGuire, told him that she and some other employees had been approached by Solorzano, on their work time, with ma- terial concerning the Union.94 The following day, 16 March, after working several hours, Solorzano was informed by McGuire that he was being suspended for 3 days "because I had with me union papers." Solorzano testified without refutation that he informed McGuire that they were not union papers, it was a petition for Luciano Gonzalez. McGuire then tore up the warning and redrafted the notice. Solorzano was given two employee conference forms. The first provides: Employees may not solicit or promote support for any cause or organization; In addition they may not distribute or circulate any written or printed materials in work areas (1) at any time (2) or during employees working time (3) or during the working time of any employees at whom such activity is di- rected.95 Employee was soliciting signatures for petition for Luciano Gonzalez to return to work. He had card present for signatures in breakroom. He was not on shift. He was told he could not do that and had to leave at which time [sic]. Any further viola- tion will result in suspension or termination. 91 As indicated above, the parties stipulated that this rule is facially valid. 92 Canni is a leadperson She did not appear and testify 93 McGuire claimed Plitron and Carmi were working 94 McGuire stated that at this time he told Solorzano he was in breach of company policy. However, later he explained his failure to give Solor- zano a warning for this violation of the rules because Solorzano had al- ready left This patent inconsistency is illustrative of the lack of reliability of McGuire's testimony It is noted that Solorzano was inconsistent with his recall of the dates, but contextually his presentation of'the facts was much more consistent. Also Solorzano's demeanor was forthright and in- dicated an attempt to accurately recall events, readily admitting facts that he perceived as harmful to his interest 9s This statement is corroborative of Najarro's testimony that he was told he could not distribute any prounton material at any time on the premises This employee conference form was filled out by McGuire. McGuire was unsure whether he warned So- lorzano he could be suspended or terminated for the next infraction when he asked him to leave the premises during their discussion in the breakroom on 15 March. Solorzano's testimony, which was the more credible, in- dicates no such warning was given. The second warning was filled out in part by McGuire and in part by Carini pursuant, to McGuire's instructions. The portion filled not by McGuire is verbatim the same as the first paragraph of the first employee conference form. The portion written by Carini states: Letty and I were sitting in the dining room as Juan came to sit next to us and then asked Letty to sign a petition to have Luciano Gonzalez to come back to work. Then Mike saw him asking and told him to leave and not to be having anything signed in the store and then he left. Juan was off duty when this occurred and it was occurred [sic] in the working area. At the end of the form, McGuire noted the days So- lorzano was suspended, and cautioned that "any viola- tions may ocur [sic] in termination. On suspension time [sic] you are not to be in restaurant at any time-" Solorzano told McGuire he did not "do anything wrong" and would not accept the suspension; if he was to be treated so unjustly he would rather be fired. McGuire told. him "no, because. he was too strong." McGuire did not explain what was meant by the phrase "too strong." Contrary to what he wrote on the employee confer- ence forms, McGuire testified he understood that em- ployees could not solicit within the confines of company property except when on an authorized break in the em- ployee breakroom; they could not 'solicit in the confines of the restaurant if off duty. As noted' above, this is con- trary to the provision of paragraphs 2 and 3 of the Com- pany's rule. There was no claim that Solorzano's actions with Plitron resulted in "disruption of the business at fa- cilities, guests or customers." The General Counsel argues correctly that the rule was unlawfully applied by McGuire and Guerra.96 At the outset, only the rule against solicitation is in- volved in the disciplinary action. However, Respondent's alleged disparate application of the rule, including its own distribution of company literature, will be consid- ered. In this consideration I note that, in general, greater restrictions against distribution are tolerated because of the potential problems of littering and other disruptions 91 McGuire's testimony that some of the employees in the break room at the time Solorzano solicited them were working is not credited based principally on demeanor Also, McGuire displayed poor recall. Respond- ent does not allege that Solorzano was engaged in unprotected activity or that his action was not concerted I find Solorzano was engaged in pro- tected concerted activity National Semiconductor Corp., 272 NLRB 973 (1984), citing NLRB v Hendricks County Electric Corp, 454 U S 170, 173 fn 3 (1981) The testimony regarding Guerra's statement is unrefuted CARL'S JR. caused by such activity. Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962).97 The General Counsel has overcome the presumption of valid application of the rule by the statements con- tained in the employee conference form, the unrefuted testimony concerning Guerra's statements, and the clear- ly demonstrated disparate application of the rule. McGuire, on the employee conference form, imposed a blanket prohibition against employees soliciting for any cause or organization. Carini, quoting Guerra, explained the rule as prohibiting having "anything signed in the store." These prohibitions were not limited to working time.98 Our Way, Inc., 268 NLRB 394 (1983); Cerock Wire Group, 274 NLRB 888 (1985). McGuire also indi- cated that solicitations must be limited to the upstairs break area. This limitation unlawfully deprived employ- ees from soliciting in other break areas. As found above, employees used areas of the public dining room for their breaks. McGuire's claim that he put a stop to the em- ployees taking breaks in the dining room is not credited, based primarily on demeanor. Also considered is the lack of corroboration, and several witnesses testified they took breaks in the dining room. As noted by the General Counsel, Respondent's own witness testified that employ- ees were allowed to take their breaks in the dining room area where a television set was located.99 Solorzano was subsequently involved in another incident, discussed in detail below, where he was taking a break in the dining room.100 Apparently Plitron was not on duty at the time of the solicitation, for she was sitting in the dining room. There is no other explanation offered for her being away from her work station nor is it claimed her worksite was sitting at a dining room table. Therefore I find that at all times here pertinent, employees took breaks in the dining room. Prohibiting access to an off-duty employee to other off-duty employees in an established break area, where there was no breach of a company rule, is viola- tive of Section 8(a)(1) the Act. NLRB v. E. I. DuPont & Co., 750 F.2d 524 (6th Cir. 1984). Harold's, Club v. NLRB, 758 F.2d 1320 (9th Cir. 1985). This improper ap- plication of the rule was limited to perceived, union ac- tivity and was clearly in response to the union organiz- ing drive, and was designed to inhibit this activity. In contrast to the treatment of Solorzano, as Guizar and others testified, assistant managers and leadpersons went around work areas during working time distribut- ing company campaign literature and trying to convince employees to vote for the Company and against the Union. Esquivel posted notices of the meetings on the various bulletin boards maintained by the Company at the facility and went around the Store and informed leadpersons and supervisors of the company meetings. Leadpersons and supervisors were not limited to the up- stairs break area in their distribution and solicitation ac- 97 That McGuire claims Solorzano solicited signatures on authoriza- tion cards does not make this a no-distribution issue Stoddard-Quirk, id Cf Rose Co, 154 NLRB 228 (1965). 98 See G C Exhs 3 and 4, quoted above $9 See Maldonado's testimony 100 Segovia's claim that "the company gave these instructions that while we were working documents weren't to be passed out in the work area anywhere" is not credited She has been found not to be credible. 1001 tivities. This widespread solicitation and distribution on behalf of the Company in the dining room and other work areas clearly demonstrates disparate application of the rule which is violative of Section 8(a)(1) of the Act. Daniel Construction Co., 266 NLRB 1091 (1982); Mara- thon Letourneau v. NLRB, 699 F.2d 248, 256 (5th Cir. 1983). Midwest Regional Joint Board v. NLRB, 564 F.2d 434, 446 (D.C. Cir. 1977); and Zero Corp, 262 NLRB 495, 506 (1982). The next issue, therefore, is whether the disciplining of Solorzano, based on McGuire's and Guerra's 1 °' applica- tion of the no-solicitation rule, was violative of Section 8(a)(3) and (1) of the Act. The employer violates the Act by discriminatorily enforcing an otherwise valid rule to restrict an employee from engaging in protected concert- ed activity; threatening the employee with discipline; and disciplining the employee, for such actions. Trailways, 237 NLRB 654 (1978), enfd. 608 F.2d 523 (5th Cir. 1979). Compare Midwest Regional Joint Board v. NLRB, 564 F.2d 434 (D.C. Cir. 1977).102 Respondent has not shown that it successfully repudi- ated this unlawful coercive conduct, Passavant Memorial Area Hospital, 237 NLRB 138 (1978). That two employee counseling forms were given for what McGuire thought was solicitation of union authori- zation cards occurring within minutes of each other was not shown to be consistent with McGuire's own explana- tion of the Company's progressive discipline system. McGuire recognized that his predecessor was very lax and that he needed to counsel the employees with verbal warnings to establish adherence to the Company's vari- ous policies. Under these circumstances, McGuire gave many verbal warnings. In this instance there was no verbal warning. The first warning assertedly resulted in a caution that any further violations would result in sus- pension or termination. The fact that this action was taken without reference to the Company's rule, indicates a desire to quell and punish the activity out of proportion to the infraction. McGuire's action was inconsistent with his other discipli- nary actions. For example, when McGuire saw an em- ployee put chili on nachos, which other witnesses for Respondent asserted was stealing requiring immediate discharge, he merely issued a verbal warning because it was early in his tenure at Store 100. Yet McGuire gave a written warning threatening more severe discipline for soliciting in the change room while the employee is off the clock. McGuire testified that he would consider it a "splitting of hairs"considering an em- ployee who was off the clock breached policy by distrib- uting material in the change room. This inconsistency is indicative of animosity. Another indication of McGuire's bias is his description of Solorzano's activity in the change room. He said Solorzano was "pressuring people into signing cards." This description was not shown to 101 Guerra's rule as stated by Carim, pursuant to McGuire's orders, is found attributable to Respondent because Carmi was clearly acting as its agent Idaho Falls Consolidated Hospitals v NLRB, 731 F 2d 1384, 1387 (9th Cir 1984) '°z As noted by the General Counsel any discipline as a result of the promulgation of the unlawful no-solicitation rule is similarly unlawful 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD be justified, he admittedly did not understand most of the discussion, which was in Spanish. Also he admitted he did not,clearly recall the incident; he was not sure of the details. The issuance of an employee counseling for Solor- zano's first perceived violation of the disparately en- forced rule is also contrary to McGuire's understanding of Respondent's system of discipline. He testified that, while the nature of the infraction dictated the nature of the discipline, a written warning is issued after several verbal warnings or if there was a history of breaching policy. Solorzano's first written warning was not alleged to reflect a severe problem or to be otherwise warranted. Considering all these factors as well as the Company's overall campaign and other infractions, I find the Com- pany's decision to suspend Solorzano was discriminatori- ly motivated and violated Section 8(a)(3) and (1) of the Act. Respondent failed to show that Solorzanowould have been suspended even absent the unlawful motive. Respondent suspended Solorzano on I1 April and dis- ciplined him on 12 April. The Company argues that these actions were for good cause. Solorzano admittedly put chili on his nachos, 103 without paying for the chili, which is stealing and routinely a basis for discharge. The Company established without refutation, that it main- tained very rigid menu standards: Chili was not to be used on nachos-only on hot dogs. Esquivel noted this improper use of a condiment, suspended him, and a day later discharged Solorzano. I find that the General Counsel has made a prima facie case that Respondent was unlawfully motivated in disci- plining Solorzano based on credited testimony regarding Ruppel's statements, the Company's threats, and other unlawful activity. Respondent did demonstrate that dis- charge was the normal discipline for taking food without paying. However, I conclude that this infraction was not the Employer's primary motivation in this instance or that he would have been terminated even in the absence of his protected concerted activity. iSolorzano candidly admitted that he took the chili without paying for it and that chili was to be used only on hot dogs. His only excuse is that he saw other em- ployees as well as customers put chili on nachos. Ac- cording to Solorzano, who was not contradicted, Esqui- vel ordered him to throw the nachos out "otherwise" he would fire him (emphasis added). Solorzano, as found above, was found to be the more credible witness. Esquivel testified that after he asked Solorzano if he knew putting the chili on the nachos was against compa- ny policy, Solorzano said he did not care. He ordered him to throw them away. Solorzano first balked and then threw them away. According to Esquivel, the Union was not mentioned or discussed, and he did not know that Solorzano was involved with the Union at the time. Esquivel, in contradiction to his earlier statement, then testified that he saw Solorzano eating the nachos and told him it was against policy to have chili on the chips. He did not recall Solorzano's reply exactly, but 102 He purchased the nachos on a discowiit and then sat down at a table in the dining room He was obviously taking a break in the dining room said he kept eating the chips. Solorzano said he did not care what Esquivel did with him, and accused Esquivel of giving him a "hard time," of holding a "grudge," be- cause he was associated with the Union. Esquivel replied that the accusation was untrue. This admission that the Union was mentioned is credited. Also Esquivel admitted that the Company marked the chart to indicate an em- ployee's, views toward the Union and Solorzano was well known to Segovia, Paullins, and McGuire as a prounion activist. Esquivel claimed that because of Solorzano's accusa- tion, he decided to suspend him pending an investigation rather than follow his routine of immediate discharge for that infraction. The noted inconsistent testimony indi- cates unlawful motive. Another indication of unlawful motive is that Esquivel later testified that he and Paullins reviewed Solorzano's file, noticed this was his third vio- lation, the other two being the no-solicitation rule viola- tions, which warranted his dismissal. If stealing was nor- mally and routinely dealt with by discharge and was ini- tially the predicate relied on by Esquivel, resort to this other reason is further indication of pretext. Resort to varied reasons for an action is probative of pretext. t o4 This finding of pretext is supported by the credited testimony of Sandoval that: Raul told me that he has seen Solorzano putting chili on his tortilla chips and that he was going to suspend him. But at the same time that he told me that, then he told me that he was not going to sus- pend him any longer, he was going to fire him be- cause Solorzano answered that if he suspended him, he was going to take the Company to court .. . . The threat bothered him . . . he knew Antonio [So- lorzano] was in the Union so Antonio answered him that it was time, and that's what [Esquivel] told me, that he was going to fire him because he told that he was in the Union. So when he told me that he called Frederico and Miguel so they could also hear what he was telling me, that he was going to fire him because he thought he was being threatened. Although this testimony is somewhat confusing, in part due to the problems attendant to simultaneous trans- lation, it supports Solorzano's testimony that Esquivel initially contemplated suspension as the discipline he was going to impose for the infraction. Only after the Union was mentioned was it determined to discharge him. This evidence clearly refutes Respondent's claim that Solor- zano would have been discharged absent his union activi- ty and requires the finding that he was discriminatorily discharged in violation of Section 8(a)(3) and (1) of the Act. 104 Paullms initially testified he decided to discharge Solorzano Then he testified he did not recall if Solorzano had been working prior to his talking to him Then he testified he did not recall why Solorzano was discharged He did not recall being involved in the decision to discharge him. He admitted he had no independent recollection of the basis for the discharge. Based on this admission, I conclude that Paullms was not the individual who decided to terminate Solorzano; and` his testimony is not probative. CARL'S JR. This conclusion is buttressed by Guizar's previously credited testimony that during a meeting, Ruppel said Solorzano was fired because he was involved with the Union. Bonilla's credited testimony that Maldonado told him the Company was going to fire Solorzano adds sup- port to this finding. In sum, I find Respondent discharged Solorzano be- cause he had engaged in concerted activity protected by the Act and it wished to discourage other employees in the forthcoming election. Respondent did not convinc- ingly demonstrate that it would have discharged Solor- zano absent these unlawful motives, in fact, there are in- dications that he would have received a less severe pen- alty. 3. Discharge of Palma Palma transferred to Store 100 in February. He was fired on 28 September. I find the General Counsel has failed to make a prima facie showing that Palma's dis- charge was discriminatorily motivated. Palma was a dishwasher who had a reputation for sloppiness and slov- enliness. He received a series of warnings based on these traits. He admitted he was warned for not keeping the kitchen clean, not mopping a wet floor before leaving on break, spitting on a wall visible to customers in the dining room, wearing dirty clothes, and keeping his hair too long. These warnings were undisputedly justified and the last warning informed him that another infraction would result in termination. After receiving this warning, Palma worked 5-1/2 hours without taking a break on 3 days of his last week of employment in admitted contra- vention of company policy. The first two occasions may have been in response to requests from supervisors, but Palma admitted that the infraction which led to his dis- charge was done without supervisory direction and with- out consulting a supervisor. The rule required employees to take an one-half hour lunchbreak after having worked 5 hours. This rule was more stringent than the state re- quirement that employees be given a lunchbreak after they, worked 5-1/2 hours. Palma knowingly breached company policy after receiving a warning that he would be discharged for such a breach. The General Counsel argues unpersuasively that com- ments Maldonado and Esquivel made to Palma demon- strate discriminatory motive in the decision to discharge Palma. According to Palma's uncontradicted testimony, Maldonado told Palma that Esquivel was going to fire Palma, and the rumor ostensibly also included a cowork- er named "Alfredo." The rumor was they were going to be fired for eating company food, a clearly established basis, for such discipline as found above in the discussion of Solorzano's discharge. Palma discussed the rumor with Esquivel and after Maldonado explained to Esqui- vel that the food had been prepared for "Maria," Esqui- vel told Palma, "It's all right." That was the end of the incident, Another argument advanced by the General Counsel is that Revelorio's testimony that Esquivel once told him he was certain Palma was "all union" and he would fire him demonstrates improper motive. The date of the con- versation was not adduced, but Revelorio estimated the comment was made about 3 months before Palma was 1003 fired. Also, this argument does not address Revelorio's testimony that he told Esquivel that Palma did not favor the Union; he supported the Company. Revelorio also testified that Palma at times indicated to him that he fa- vored the Company and was thinking of voting for the Company. Revelorio reported the statement to Martinez. Thus it is not clear that Respondent knew of any proun- ion sentiments held by Palma. Palma engaged in limited union organizing activity. He attended one meeting and distributed two union authori- zation cards. He testified that during the organizing cam- paign, he just did his work, minded his own business, and did not campaign. After the election, he said he told all who were interested he did not even know what a union was. These admissions are credited. Not credited is his assertion that 2 days after the company food incident, Maldonado told him Esquivel wanted to fire him because he was in the Union and Esquivel did not like the idea. Maldonado denied making this statement. Palma exhibited a poor recall of dates and events and a tendency to testify in a manner he perceived as most favorable to his case. For example, he first said he was discharged 2 days after the election. However, the prin- cipal basis for discrediting him is demeanor; he did not demonstrate a forthright and convincing manner. If Respondent wanted to "rid itself' of a union sup- porter, why would it wait over 5 months after the elec- tion when Palma admittedly provided it with ample op- portunities to discharge him for cause. For example, Maldonado testified without dispute that he gave Palma several warnings about his lack of cleanliness; that Palma was usually dirty. Palma admitted he understood the need for cleanliness in appearance and Work habits in a restaurant. The continued violations of company policies could have readily been utilized as a basis for the Com- pany to discharge Palma if he was perceived as a union activist it wished to terminate. There was no need for Respondent to wait more than 5 months after the elec- tion to take action. In sum, the General Counsel has failed to prove by a preponderance of the credible evidence that Respondent unlawfully discharged Palma, and this portion of the al- legation contained in paragraph 7 of the complaint shall be dismissed. 4. Suspension of Grizelda Guizar and related allegations of violations involving Guizar Guizar was hired by Respondent in 1981 as a cashier. As noted above, she was promoted to leadperson during the union organizing campaign . At this time she had con- versations with Esquivel and Ruppel. According to Guizar's uncontroverted testimony, after being asked to become a leadperson and declining, she overheard Paullins remark to Ruppel that she declined the promotion because she was active in the Union's or- ganizational effort. She determined to accept the promo- tion when it was offered again shortly thereafter. On 13 April, the day after she was promoted, Paullins told her Ruppel wanted to talk to her. They conversed upstairs. Ruppel told her that he knew both she and her sister were involved with the Union, but now that she was a 1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD leadperson, she should assist him by telling the employ- ees to vote no in the election. He told her that she would have to help him because she was a "company person." This unrefuted credible testimony is found to have cre- ated the impression of surveillance in violation of Section 8(a)(1) of the Act; considering the atmosphere created by the various violations found here and all the other sur- rounding circumstances , including Guizar's acceptance of or promotion to leadperson after prior refusals only after she overheard Paullins tell Ruppel she had refused be- cause she was a union supporter. See Gatliff Business Products, supra.105 Other factors extant at this time were overt threats of plant closure and terminations. Under these circumstances, the comment was clearly coercive. Guizar also testified that after Esquivel replaced McGuire he assured her everything was going to be al- right regarding the reductions in employees ' hours; that there would be changes including reinstatement , of hours. Esquivel also told her that any warnings McGuire signed would be removed from her personnel file; that "it was [McGuire's] mistakes." Esquivel could not recall making this statement; but he did not unequivocally deny making them, - Paragraph 20of the complaint does not allege that this conversation is violative- of the Act and, to ensure due process, it will, be .considered as background only in relation to Guizar's suspension. On 27 April, the day-after the election, Guizar report- ed to the Storer 20 minutes 'before her scheduled starting time. She went upstairs to fix her hair and , admittedly shortly before she was to start work, she ordered break- fast.' She believes, but is not sure, that Philipos, an assist- ant manager, Was, the only cook. There was a delay in the preparation of her breakfast . She consumed her breakfast and admittedly was late when she attempted to clock` in. Although Guizar believes she was only 3 min- utes late, she signed ' an interoffice 'memo dated 27 April that stated that she was 10 minutes late for the start of her, sshift. She did not'comment on the form106 that it was in error, or otherwise claim that at the time she was only 3 minutes late.' I therefore conclude that her percep- tion of the amount of time she was late is inaccurate and the memo, written at or around the time of the incident, is more reliable. On 14 , March, Guizar received an employee confer- ence form from Guerra stating that she was 25 minutes late for her scheduled ` shift and the "[n]ext infraction will result in 3 days suspension . The 27 April memo referred to the March conference form indicating that the next in- fraction "will result in [sic] 3 day suspension." She was suspended 1 through 3 May. 107 The General Counsel argues that remarks made by Philipos that the Union's representatives were expected in the restaurant and he did not want them talking to her was the basis for the suspension. The General Counsel 105 Ruppel instructing leadpersons to convince other employees to vote no has previously been found to be a violation of Sec 8(a)(1) 106 The standard employee conference form was not used for this warning; however, the form used was signed by Guizar and there was space for her to comment She made no comments She-did not have to sign the form 107 Guizar did not return to work on 4 May and was discharged on 5 May This action was not alleged to be violative of the Act, noted Philipos was not called as a witness and his ab- sence was not explained . This argument is not persuasive in this instance. Esquivel imposed, the suspension. The days she was to be absent are not alleged to be when the Union was to be present . The infraction was admitted. Suspension was expected and in accordance with 'the preceding employee counseling given in March. Thus, assuming arguendo that Philipos made , the comment and it was sufficient to warrant a finding that the General Counsel made a prima , facie case, the Company's docu- ments demonstrate that Guizar would have been sus- pended absent any concerted protected activity. 108 Based on the credited evidence; I find the General Counsel has not sustained her burden under Wright Line, supra, and this portion of the allegation in paragraph 8 of the complaint is dismissed. F. Objections 1. The Respondent's objections to the conduct of the election The Respondent filed timely objections to the conduct of the election on 2 May! On 22 August -the Acting Re- gional Director of Region 21 dismissed all the employ- ees' objections except-the following claim: The Union, its, agents and, members of the bar- gaining unit threatened and,intimidated employees in a manner that destroyed the laboratory condi- tions required for a lawful election . These threats and intimidations made it impossible for the employ- ees to vote according 'to their own free will. This objection was referred to me for hearing consoli- dated with certain objections of the Charging Party that are identical to certain of the alleged unfair labor prac- tice allegations discussed supra and challenges to the bal- lots of Olivia Flores, Juan Antoino Solorzano , and Luis Rejelio Najarro. The specific conduct complained of by Respondent is the claim that the Union , threatened employees who did not support the Union, with termination and deportation. Respondent argues, that union literature, Respondent's Exhibit 17, and the testimony of-Hugo Maldonado dem- onstrate such threats were made. Respondent's Exhibit 17 was not shown to be attributable to the Union, There is uncontroverted evidence that several organizations that were not shown to be affiliated with the Union or acting as its agent distributed antiemployer material in- cluding the "Casa del Obrero," which was described by several witnesses as a workers ' coalition that assists Cen- tral Americans. The reference is made in this exhibit to the Company threatening to call immigration, a threat found above to have occurred. Maldonado is not a credible witness. This finding is based on demeanor; a conclusion buttressed by inconsist- ios Guizar also testified without contradiction, Voohies on 27 April commented that Guizar and her sister's union activity were the reason for her suspension This testimony does not alter my conclusion' for-Voo- hies was not shown to have had any input into the decision to warn and suspend Guizar or was privy to the basis for the decision. CARL'S JR. ent testimony and admitted poor recall. For example, in response to leading questions, he testified that he heard an unidentified union agent say they would deport and fire employees if they did not support the Union. On cross-examination, his recitation of the events occurring at the union meeting he attended did not contain the threats; stating that all he recalled about the meeting was the man asking for more signed cards and the woman taking down everybody else's names. He did not remem- ber anything else.' On redirect, when the leading format of questioning was again employed, he restated the alle- gation of wrongdoing, but could not recall if a man or woman made the statement, admitting he did not remem- ber very well. I find it improbable that an employee could not recall whether a man or woman made such threats, In contradiction to his testimony, his affidavit states: The two Union agents also said that those that didn't sign the cards, if the Union won the election, after the ejection, the Union would try to get rid of those employees, one by one . . . . They did not say how the Union would do this. I did not hear any threats made by Union agents. Then Maldonado testified it was the man who made the statement. His affidavit also states: About five days before the election, I heard about two employees say, that the Union said that if the Union won the election, the Union would not only take them out of the Company but also have them removed from the country.. I heard this said in the dining room near the T.V. where the employees take their break. I heard the two employees say this but I didn't see who they were and don't know who it was. They were male voices. This is all that I heard said. These "voices" were not shown to be agents or other- wise affiliated with the Union, even if Maldonado' s testi- mony is credited. Other attendees of the same union meeting-Bonilla, Navarro, Sandoval, and his brother, did not corroborate Maldonado's testimony. Ruiz, the Union's business agent, credibly denied that he or other union representatives made the alleged threats. He testified in a candid and forthright manner. He admitted they discussed previous organizing cam- paigns during the union meetings, including tactics re- sorted to by other companies to quell or defeat the Union. Solorzano did ask what, if anything, would happen if employees were not in the country legally and Rutz replied that the Government perceives them only as employees, whether documented or not. Ruiz also noted it was not the Union's function to take anyone's job away; the Union would not engage in any retaliation against employees who did not support the Union. The Union would not know how anyone voted and thus could not discriminate against anyone. Based on the credited evidence, I recommend that Re- spondent's objection be overruled. As an aside, it is noted Maldonado testified that, before attending the meeting that was scheduled to com- 1005 mence at 5 p.m., 2 hours after he finished work, he stayed around the Store and may have had a beer. He frequently stayed after work to have a beer. This Re- spondent witness' testimony contradicts McGuire, who said a basis for Solorzano's suspension was that he did not depart the premises - after his scheduled workday con- trary to company policy. Maldonado's testimony is cred- ited in this regard for it is contrary to the Company's in- terests. Maldonado is an agent and current employee who was obviously trying to please his employer through his testimony. This admission against interest supports the previous conclusion that Solorzano was dis- criminatorily disciplined. 2. The Union's objections to the conduct of the election The Union filed timely objections to the conduct of the election on 3 May. The Acting Regional Director for Region 21 concluded that four of these objections were closely related to the alleged unfair labor practices al- leged in the complaint in Case 21-CA-23062 and the issues were consolidated for my resolution. The specific objections here under consideration are: that Respondent threatened "to call Immigration and Naturalization Serv- ice to conduct a raid on the Employer's premises if the employees voted in favor of the union; The Employer discharged Solorzano and Najarro in retaliation for their union activities; The Employer interrogated employees about their union activities and sympathies; and, The Employer promised and granted employees benefits." These allegations have been discussed and analyzed above and there is no need for repetition. I have found that Respondent violated the Section 7 rights of a significant number of employees during the period from the filing of the representation petition to the date of the election. This widespread conduct consti- tutes objectionable conduct.' Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). I recommend that the Union's Objections 1, 3, 4, and 7 be sustained. ' F. The Challenged Ballots 1. The ballot of Flores The Union challenged the ballot of Olivia Flores on the ground that she is a leadperson. As I found above, she is not a leadperson and hence I recommend that the challenge to this ballot be overruled. 2. The ballots of Najarro and Solorzano Najarro's and Solorzano's ballots were challenged be- cause their names did not appear on the election eligibil- ity list. The contention of the Union and the General Counsel that these votes should be counted because they had been terminated by the Employer in violation of Section, 8(a)(3) and (1) of the Act has been found to be meritorious, supra. Thus, I conclude they were employ- ees at the time of the election and eligible to vote. I therefore recommend that the challenges to their ballots be overruled. 1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD G. Recommended Disposition of the Representation Case In sum, I recommend the overruled challenged ballots of Flores, , Najarro, and Solorzano be commingled, opened and counted, and a second revised tally of ballots then be issued. If, such tally shows a majority of votes in favor of union representation, a certification of represen- tation shall be issued. If the tally results in a majority vote against represen- tation by the Union or in a tie vote, then the election re- sults should be set aside and, based on the meritorious objections found, a rerun election be conducted at a time deemed appropriate by the Regional Director for Region 21. I deem a rerun election warranted if a majority vote against representation by the Union 'or in a tie vote for the unlawful conduct by Respondent found herein was severe and widespread, and probably had a great impact on the election. THE REMEDY Having found Respondent has committed violations of Section 8(a)(1) and (3). of the Act, I recommend that 'it be required to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the purpose of the Act. Having found that Najarro was improperly discharged and Solorzano improperly suspended and discharged, I shall, require Respondent to reinstate them to their former positions or, if such positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed, and to make them whole for any loss of earn- ings they may have suffered by reason of the suspension and/or discharge by paying to them a sum of money equal to that which they would have normally earned absent their discharge, less earnings during such period to be computed in the manner described in F' W, Wool- worth Co., 90 NLRB 289, (1950), with interest computed in the manner described in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962). The disciplinary notices issued in conjunction with these violations and other related documentation shall be removed from Respondent's records.los The number and variety of Respondent's violations of the Act further warrants an order requiring it to cease and desist in any other manner from violating the Act. The large,number of employees at the Store who are Spanish-speaking also requires that the notices be posted in both English and Spanish. The General Counsel also seeks a remedial order that includes a visitatorial clause authorizing the General Counsel to' engage in discovery under the Federal Rules- of Civil Procedure to monitor compliance with the Order issued herein. This remedy is sought not because of exigencies peculiar to this case, but as a request for 109 During the trial, Respondent's counsel argued that some if not all of the alleged discrrmtnatees were undocumented aliens. Respondent was informed that, under the circumstances of this case, the issue could he most properly resolved during the compliance stage of the hearing Counsel was referred to Sure-Tan, Inc v. NLRB, 467 U S 883 (1984) Cf Sure-Tan, Inc., 277 NLRB 302 (1985)' routine inclusion in all cases, arguing that at times, it must engage,in discovery before it can determine if'con- tempt or other ancillary proceedings are warranted. The routine inclusion of a visitatorial provision the General Counsel claims would permit discovery to determine promptly if contempt proceedings should be instituted while diminishing potential liability under the Equal Access to Justice Act (EAJA). Also, it is averred that discovery under a visitatorial provision is most appropri- ate for it permits the successful litigant to police compli- ance by requiring the losing party to submit to post-judg- ment discovery, similar to the relief provided under Fed.R.Cir. V.P. 69. The General Counsel contends this is the most viable alternative to the other avenues of dis- covery110 because of potentially long delays occasioned by the other options, and it is most appropriate that such discovery be conducted under the aegis of the enforcing court. The need for a visitatorial clause as a remedy has not been shown in this proceeding. The routine inclusion of such a provision is a matter of policy best referred to the judgment of the Board. See O. L. Willis, Inc., 278 NLRB 203 (1986). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in the action and conduct found viola- tive in this decision, Respondent interfered with, re- strained, or coerced its employees in the exercise'of the rights guaranteed them-in Section 7 of the Act and there- by violated Section 8(a)(1) of the Act. 4. By suspending Solorzano and discharging Najarro and_ Solorzano because of their union activities, Respond- ent discriminated against employees because they en- gaged in concerted protected activities, in violation of Section 8(a)(3) and (1) of the Act. 5. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not otherwise violated the Act as alleged and those allegations not proven, as found above, should' be dismissed. 7. The challenges to the ballots of voters Najarro, Guizar, and Solorzano should be overruled. 8. Because the challenges are determinative of the result of the election, it is recommended that the over- ruled challenged ballots of Guizar, Solorzano, and Na- jarro be'opened and counted and a second revised tally of ballots be issued. 9. The Respondent's objections to the conduct of the election have been found to lack merit and should be overruled. 110 Application to a court of appeals for a discovery order or obtain- ing enforcement in a Federal district court, of an investigatory subpoena issued under Sec 11 of the Act are the other alternatives CARL'S JR. 10. The Union's objections to the conduct of the elec- tion have merit and should be sustained. In the event the tally of ballots results in a majority vote against represen- tation by the Union or tie vote, then the election results should be set aside and a rerun election conducted at a time deemed appropriate by the Regional Director for Region 21. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ediii ORDER The Respondent, C.K.E. Enterprises d/b/a Carl's Jr., Los Angeles, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interfering with, restraining, and coercing its em- ployees in the exercise of their rights guaranteed them in Section 7 of the Act in violation of Section 8(a)(1) of the Act. (b) Interrogating employees about their own and/or other employees' union activities including how employ- ees intended to vote in an NLRB-conducted election, for or against the Employer; and whether they favored the Union. (c) Threatening employees that if the Union organized the Respondent: (1) They would close that restaurant; (2) discharge any employee involved in union activities; (3) discharge those employees who voted in favor of the Union; (4) call Immigration and Naturalization Service. (d) Promulgating and enforcing an unlawfully broad no-solicitation, no-distribution rule and threatening disci- plinary action for violations of the no-solicitation, no-dis- tribution rule. (e) Creating the impression of surveillance of the em- ployees' union activities; offering to pay employees if they agreed to attend a union meeting and report back which employees attended the meeting so they could be fired; instructing employees to report to a supervisor whether other employees supported the union or the Company. (f) Informing employees of the futility of soliciting the Union as their collective-bargaining representative. (g) Soliciting employee complaints and grievances. (h) Instructing leadpersons to convince other employ- ees to vote against the Union and otherwise unlawfully attempting to induce employees to campaign against the Union. (i) Promising employees that the employer would re- solve their problems and get rid of two unpopular super- visors if the employees abandoned their support for the Union. (j) Telling employees Juan Solorzano and Luis Najarro had been discharged because of their union activities. (k) Discriminating against several employees because of their union activities in violation of Section 8(a)(3) i i i If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 1007 and (1) of the Act by: Discharging Luis Najarro. Sus- pending and discharging Juan Solorzano. (1) In any like or related manner interfering with, re- straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action, necessary to effectuate the policies of the Act. (a) Offer Luis Najarro and Juan Solorzano immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Remove from its files any reference to the unlawful discharge of Luis Najarro and the unlawful suspension and discharge of Juan Solorzano and notifying them in writing that this has been done and that these discipli- nary actions will not be used against them in any way. (c) Make Luis Najarro and Juan Solorzano whole for any loss of earnings and benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (d) Preserve and,' on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its facility in Los Angeles, California, copies of the attached notice marked "Appendix."' 12 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that all allegations con- tained in the consolidated amended complaint found not to constitute unfair labor practices are dismissed. IT IS FURTHER RECOMMENDED in Case 21-RC-17377 that the Respondent-Petitioner's. Objection 1 be over- ruled, Charging Party-Petitioner's Objections 1, 3, 4, and 7 be sustained, and that the challenge to the ballots of Olivia Flores, Juan Solorzano, and Luis Najarro be over- ruled, these ballots be opened and counted, and a revised tally of ballots be issued. If such tally shows a majority of votes in favor of union representation, a certification of representation should be issued; if the tally results in a majority vote against representation by the Union or in a tie vote, then the election results should be set aside, 112 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD based on the objectionable conduct that fell within the critical period, and a new election directed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT suspend, discharge, discipline, or other- wise discriminate, against employes because of their union sympathies, activities, or other protected concerted ac- tivities. - WE WILL NOT threaten our employees with closing the restaurant if Hotel Employees and Restaurant Employees, Union, Local 11 , Hotel Employees and Restaurant Em- ployees International Union , AFL-CIO win the election nor will we threaten to call the Immigration and Natu- ralization Service using the spectre of deportation or dis- charge of any employee involved in union activities; dis- charge of , those employees who vote in favor of the Union, or any other form of retaliation. WE WILL NOT interrogate employees about their own and/or other employees' union activities including how employees intend to vote in the NLRB -conducted elec- tion, for or against the employer and, whether ' they favor the Union. WE WILL NOT create the impression of surveillance of our employees' union activities; offer to pay employees if they agree to attended a union meeting and report back which employees attended the meeting , so they can be fired; and instruct employees to report to a supervisor whether other employees support the Union or the Com- pany. -WE WILL NOT inform our employees that it is futile to select the Union as their collective -bargaining representa- tive. WE, WILL NOT solicit grievances from , our employees for the " purpose of discouraging their participation in union activities nor will we unlawfully solicit them, or instruct them, to persuade other employees to vote against the Union in an election. WE WILL NOT promise our employees expressed or im- plied benefits for the purpose of inducing them to with- draw their anion support or to discourage such support. WE WILL NOT tell employees that Luis Najarro and, Juan Solorzano were discharged because of their union activities, implicity threatening similar discrimination will be taken against them if they support the Union. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL offer Luis Najarro and Juan Solorzano im- mediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or- other rights and privileges , and WE WILL make them whole for any loss of earnings and other benefits they may have suffered as a result of our discrimination against them, less any net interim earnings , plus interest. WE WILL notify them that we have removed from our files any references to their suspensions and/or dis- charges and these disciplinary actions will not be- used against them in any way. C.K.E. ENTERPRISES D/B/A CARL'S JR.