Menlo Food Corp. and Hotel Employees Restaurant Employees Union

The full case caption appears at the end of this opinion. On January 8, 1999, Administrative Law Judge Clifford H. Anderson issued the attached decision. The Respondent and the General Counsel filed exceptions and supporting briefs, and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [FOOTNOTE 1] and conclusions [FOOTNOTE 2] and to adopt the recommended Order as modified. [FOOTNOTE 3] ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Menlo Food Corporation, East Palo Alto, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(a). “(a) Within 14 days after service by the Region, post at its East Palo Alto, California facility copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the Regional Director for Region 32, in English and such other languages as the Regional Director determines are necessary to fully communicate with employees, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by other material. In the event that, during the pendancy of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 17, 1997.” IT IS FURTHER ORDERED that the election held in Case 32–RC–4364 is set aside and that case is remanded to the Regional Director for Region 32 to conduct a new election when he deems the circumstance permit the free choice of a bargaining representative. DIRECTION OF SECOND ELECTION A second election by secret ballot shall be held among the employees in the unit found appropriate, whenever the Regional Director deems appropriate. The Regional Director 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 permanently replaced. Those eligible shall vote whether they desire to be represented for collective bargaining by Hotel Employees Restaurant Employees Union Local 19. To ensure that all eligible voters have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses that may be used to communicate with them. Excelsior Underwear, 156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is directed that an eligibility list containing the full names and addresses of all the eligible voters must be filed by the Employer with the Regional Director within 7 days from the date of the Notice of Second Election. North Macon Health Care Facility, 315 NLRB 359 (1994). The Regional Director shall make the list available to all parties to the election. No extension of time to file the list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Dated, Washington, D.C. December 14, 1999 ———– NATIONAL LABOR RELATIONS BOARD DECISION AND REPORT ON OBJECTIONS STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. I heard the above captioned cases in trial in Oakland and San Quentin, California in June, July, and August 1998. The matter arose as follows. I. THE UNFAIR LABOR PRACTICE CASE On September 29, 1997, Hotel Employees Restaurant Employees Union Local 19 (the Charging Party, the Petitioner, or the Union) filed a charge, docketed as Case 32–CA–16384, with Region 32 of the National Labor Relations Board against Menlo Food Corporation (the Respondent or the Employer) amending that charge on February 9, 1998. The Regional Director for Region 32 issued a complaint and notice of hearing on the amended charge on February 27, 1998, and an amended consolidated complaint and notice of hearing on April 29, 1998. The Respondent filed timely answers to the complaint and amended complaint. The complaint as amended alleges and the answer denies that the Respondent’s agents made various improper promises and instructions to, threats to, interrogations of and surveilled employees in the period of September 1997 through January 1998, in violation of Section 8(a)(1) of the National Labor Relations Act (the Act). The complaint further alleges and the answer denies that on or about September 19, 1997, the Respondent terminated employees Victor Ruiz and Daniel Casta�eda because of their union or other protected concerted activities in violation of Section 8(a)(3) and (1) of the Act. The complaint alleges and the answer denies that the Union at all relevant times had the support of a majority of employees in the Union, made a demand for recognition and bargaining of the Respondent on or about September 17, 1997, which demand was at all times thereafter refused by the Respondent. The complaint alleges and the answer denies that, as a result of the other alleged unfair labor practices, a new election would not fairly test employees sentiments and that a bargaining order should be directed against the Respondent effective on or before September 17, 1997. The complaint finally alleges and the answer denies that the Respondent’s failure, on and after September 17, 1997, to recognize the Union upon its demand for recognition and the bargaining order sought violates Section 8(a)(5) and (1) of the Act. II. THE REPRESENTATION CASE On September 24, 1997, the Union filed a petition, docketed as Case 32–RC–4364, seeking to represent the Employer’s employees. Pursuant to a Stipulated Election Agreement approved by the Regional Director on October 21, 1997, an election was conducted on November 12, 1997, in the following unit (the unit):

All full time and regular-time food processing and production employees employed by the Employer at its East Palo Alto, California facility; excluding managerial and administrative employees, sales personnel, office clerical employees, shipping and receiving employees, truck drivers, all other employees, guards and supervisors as defined in the Act.

The tally of ballots shows that 19 votes were cast for the Union, 21 votes cast against the Union and 3 ballots were challenged. The challenged ballots were sufficient in number to affect the results of the election. On February 26, 1998, the Regional Director approved the parties’ stipulation on challenges which recommended the challenge to Jorge Calderon, one of the three challenged ballots, be sustained. In consequence the remaining challenged were no longer determinative of the results of the election. The Petitioner filed timely objections to the election. On March 2, 1998, the Regional Director issued a Report on Objections, order consolidating cases and notice of hearing. The Report approved the withdrawal of certain objections and found that objections 2, 3, 6, and 7 raised substantial and material issues of fact which could best be resolved through a hearing. The Report ordered that the hearing on objections be consolidated with the hearing directed on the complaint, as set forth supra, for a common hearing and determination and, requested that the designated judge prepare and serve upon the parties a report containing resolutions of credibility, findings of fact, and recommendations to the Board respecting the objections. FINDINGS OF FACT Upon the entire record [FOOTNOTE 4] herein, including helpful briefs from the General Counsel and the Respondent, I make the following findings of fact.[FOOTNOTE 5] I. JURISDICTION The Respondent is and at all times material has been a California State corporation with an office and place of business in East Palo Alto, California, where it has been engaged in the business of manufacturing eggroll skins. In the course and conduct of its business, the Respondent annually sells and ships goods and or provides services valued in excess of $50,000 directly to customers located outside the State of California. The complaint alleges, the answer admits and, based on the above commerce facts, I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION STATUS The Union is and has been at all times material a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Respondent is engaged in the manufacture of eggroll skins, i.e., the flour wrappers on the popular food item. The process involves preparing, shaping, and cooking flour dough on various equipment. In recent times some 40-odd production employees have been engaged in the eggroll skin preparation process. Lee Mo is the Respondent’s owner and president;[FOOTNOTE 6] Stephen Luk is the general manager. These two individuals speak Chinese and English but speak only a little Spanish. The two production supervisors at relevant times were Messrs. Salvador Jimenez and Jose Garcia. These two individuals speak both English and Spanish but speak very little or no Chinese. All four of these employees are undisputed supervisors and agents of the Respondent. The unit employees at relevant times were Latino, each of whom spoke Spanish but generally spoke little English and essentially no Chinese. The Union was recognized by the Respondent as representative of its employees in early 1994 and entered into a contract with the Union effective by its terms from April 7, 1994, through April 6, 1996, covering the following unit of employees:

All production and maintenance employees employed by the Respondent at its plant at 175 Demeter Street, East Palo Alto, California excluding office and clerical employees, sales personnel, shipping and receiving employees, truck drivers, guards and supervisors.

Union officials dealt with the Respondent’s management during the contract on various matters. At the time of the contract’s 1996 expiration, recognition of the Union was withdrawn [FOOTNOTE 7] and the Union ceased to represent the employees at least until the disputed events at issue herein. The Union initiated an organizing campaign among the Respondent’s employees a little over a year later and, in the 4- month period from late May through early September 1997 obtained the signed authorization cards of some 34 production employees. On September 17, 1997, the Union faxed a letter to the Respondent, which was received by it in the normal course, asserting the Union represented “a substantial majority” of the Respondent’s food process and production employees, that it was prepared to demonstrate its majority and seeking negotiations for a collective-bargaining agreement. On the same day Union Business Representative Enrique Fernandez went to the Respondent’s facility and, there joined by a significant majority of employees, who ceased work and chanted slogans of support for the Union as discussed in greater detail infra, demanded recognition of the Respondent. On September 24, 1997, the Union filed a representation petition with Region 32 docketed as Case 32–RC–4364. The parties entered into a Stipulation Election Agreement approved by the Regional Director on October 21, 1997, agreeing to hold an election on November 22, 1997, in the following unit (the unit):

All full time and regular part time food processing and production employees employed by the Respondent at its East Palo Alto, California excluding managerial and administrative employees, sales personnel, office clerical employees, shipping and receiving employees, truck drivers, all other employees, guards and supervisors as defined in the Act.

Following an election campaign during which the Respondent utilized the services of a consulting firm, the election was conducted on November 12, 1997. As set forth supra, the tally of election results indicated a defeat for the Union, but timely objections to the election were filed by the Union. B. Events 1. September 17, 1997 Substantial testimony was introduced respecting the specifics of the demonstration at the Respondent’s facility on September 17, 1997. There is little doubt that many of the employees were expecting the arrival of Union Business Agent Enrique Fernandez and other union officials at the facility. When he arrived, the bulk of the employees evidenced their support for the Union by ceasing work, gathering together in the workplace, shouting prounion slogans and joining with Fernandez as he moved through the facility, talked to the Respondent’s agents and attempted to enter the Respondent’s administrative offices. It is also uncontroverted that the Respondent’s agents, Luk and Mo were distracted and discomforted by the process which was noisy and chaotic, and who were also concerned and involved with the effort necessary to insure that the possible damage to production and product in preparation caused by the worker’s abandoned equipment be minimized. There is no dispute that the union officials were asked to leave and that, in time, the police were called, arrived on scene and finally the matter was resolved and the employees returned to work. Some dispute occurred respecting the extent to which new employees Daniel Casta�eda and Victor Ruiz participated, as observed by the Respondent’s agents. Messrs. Casta�eda and Ruiz who testified that they supported the Union–as did the other employeesby ceasing work, marching and shouting. Mo and Luk denied noticing whether either Casta�eda and Ruiz were among the employees who supported the Union during the demonstration or learning thereafter that this was so. Alfredo Gutierrez, an employee of Respondent at the time in question, testified that he did not participate in the demonstration on September 17, but rather was attempting to keep the abandoned equipment operating as well as possible in the absence of the other employees. He testified that while so engaged, and while Mo was attempting to get the employees back in the plant, with the employees all around the area and while he was within 5 or 6 feet of Mo, he heard her assert: “These guys will only work a short time.” Mo testified that, while she did not recall making such a statement in Gutierrez’ presence that day, she did recall asserting out loud — but to no one in particular — while observing the demonstrators: “One of these guys only work for short time,” or “Some of these guys maybe just work for a short period of time.” She testified that the comment was related to her per-ception that the new employees who were supporting the Union by ceasing work and demonstrating had no experience working for the Respondent when the Union had earlier represented employees and hence could not reasonably have confidence in the desirability of union representation at the Respondent. 2. Events following September 17 Juan Pacheco, a current employee of the Respondent, testified [FOOTNOTE 8] that he observed a conversation between Stephen Luk and another employee soon after the Wednesday, September 17, 1997 workstoppage which occurred outside the facility during a break in which Luk said that “they were going to fire Daniel [Casta�eda] and Victor [Ruiz] because they went outside with the Union. . . . Steve Luk said that Daniel and Victor should not have done it because they were new employee . . . . And he also said that they were going to fire them on Friday.” Luk denied making the statements attributed to him and further asserted that he had no role in these two individual’s discharges nor any knowledge of their terminations prior to the day of their discharges, Friday, September 19, 1997. Alfredo Gutierrez testified that a week or 2 before the election he had two conversations one-on-one with Stephen Luk. In the first, Luk asked him if he had “signed for the union?” and Gutierrez answered that he had rather “signed for the Company.” Later the same day and in the same location Luk asked Gutierrez, in Gutierrez’ recollection: “How many people would sign for the union” and Gutierrez answered he did not know, to which Luk rejoined: “[W]hoever signed for the union would have problems.” Luk testified he had no recollection of this conversation. Gutierrez further testified that on the day of the election, November 22, 1997, Mo had a conversation with him and fellow employee Miguel Giardo in which she asked him to “check how many people signed for the union” and he agreed. Mo denied making the statements attributed to her. 3. The Respondent’s consultant’s meetings with employees The Union filed its representation petition on September 24, 1997. The Respondent retained the services of a labor-consulting firm utilizing one of its agents, Arturo Tovar, in the period proceeding the November 12, 1997 election, to hold meetings with small groups of employees. These meetings were conducted in Spanish and generally involved four to six employees with the particular employees in most groups changing for each meeting as production schedules allowed differing groups of employees to be sent to particular meetings. In essence participating employees attended three separate meetings during the period in which the issues of union representation and related matters were discussed. Employee Miguel Vital Gomez testified that in the meetings he attended with the same employees on each occasion Tovar told the assembled employees that the Respondent would not sign a contract and that if the Union was successful in representing the employees a strike would occur. He further recalled Tovar asked the employees why they wanted a Union. Employee Nicholas Martinez recalled in the single meeting he attended that Tovar said: “[I]f the Union won the Owner would not sign a new contract.” Martinez further recalled: Well, [Tovar] said that if the Union was going to get in, if we were going to sign for the Union, there was a chance that there was going to be a strike. Well, that if we voted for the Union she was going to close down and the ones that had voted for the Union were going to be fired. And that she was going to work with the people that wouldn’t have signed. Then that she was going to get new people to replace workers. Employee Benito Avila Gaspar recalled that Tovar said in his meetings that there would be strikes if the Union won the election. Employee Miguel Angel Gomez testified that Tovar told the employees in his meeting that “the bosses were not going to sign, under any circumstance, a contract with the Union.” He also testified that Tovar “was asking which ones were the problems of the Company to see if he was going to be able to do something in order to find a solution.” Employee Ramon Quintero testified in some detail to the first two meetings he attended with Tovar. In the first Quintero testified:

First, [Tovar] introduced himself. He said he was a labor counselor. I asked him for his name one more time and I asked him for his card. He told me that he didn’t use cards. And he said that he had been hired by the Company to talk about the problem. I asked him what was the problem. He told me that the problem was the Union. And he told me he had been hired by the Company to talk about the disadvantages of the Union. He said that if the Union came in there might be a strike. And he said that if there was a strike that we, the employees, might be out a certain door and the Company might, at the same time, be hiring employees through another door and make them into permanent employees. And we would have to get on a waiting list until there was a — an open — a vacancy. He said that the strike might last months or years. He said — he asked us how he would support ourselves during that time. How would we pay rent if when one is on strike one doesn’t have any rights — rights to unemployment and disability and no other government benefits.

Quintero recalled that in his second meeting on or about October 29, 1997, with Tovar:

[Mr. Tovar] started talking about strike again, in different ways. And he asked us why that union — if that union represented hotels and restaurants and they didn’t know anything about manufacturing companies. I told him that it was perhaps because it was the only one we knew.

He said, “Why don’t you talk to the owner to try to get at the problem? Why use third persons if everything can be taken care of there?” He said, “Vote no, against the Union.” He thought that simply — by simply having the threat of the union that would be enough to — for it to have favorable changes for the employees.

And I asked him if this was a promise he was making us. He said, “No.” I said, “But this is what you are implying.” He said, “Take it as you please.”

The Respondent called half a dozen employees who attended meetings with Tovar. These employees, with varying degrees of recollection, generally denied that Tovar had made the assertions alleged in the complaint. Arturo Tovar testified that while he had no separate recollection of each of the many meetings held with employees, he utilized notes and outlines in the meetings to insure he covered the points he desired to make with employees. In essence he testified that he explained to the employees what was occurring or might occur and generally presented the Respondent’s perspective that representation by the Union was not desirable for employees and that employees, being better off without union representation, should vote no in the upcoming election. He testified that he did not make promises, threats nor otherwise violate the Act. He particularly denied asserting that the Respondent would not negotiate with the Union or sign a contract or that the plant would close to punish employees if they selected the Union. 4. Two pieces of the Respondent’s campaign literature

One of the Respondent’s handouts to employees distributed on October 24, 1997 meetings asserts:

“If the union gets in, will there be a strike?”

An informed vote is a X NO vote !

The union’s only real weapon to force its demands when bargaining breaks down is to strike. Before the election you should ask yourself if you would be willing to strike.

Once a strike is called, All employees are affected. STRIKERS get no pay, no benefits, no unemployment compensation, and they face the possibility of losing their jobs while permanent replacements are working in their place.

Union workers who want to work can be fined and disciplined by the union.

Those who cross a picket line may face the possibility of harassment or threats.

Will it happen here? We certainly hope it never does – but frankly, we don’t know

On November 5, 1997, the Respondent distributed a letter to employees over the signature of Stephen Luk which asserts in part:

Dear Menlo Food Employees:

A lot has been said by the union about what they can do for you. They have made a lot of promises, but can they deliver on what is really important to you? Can the deliver higher wages or benefits? Can they deliver job security?

Let’s see what job security really is:

First, is obtaining a job from the employer. (The union does not provide jobs. Ask the union if they will guarantee a new job if you quit or lose your job.)

Second, job security is working for a healthy, growing company, with assurance of steady work. (The Union does not provide this either. All your wages and benefits, equipment, tools, etc., that you see around you are paid for by the company, not the union.)

In simple terms, job security is: