2 Sisters Food Group, Inc., and Fresh & Easy Neighborhood Market, Inc.

National Labor Relations Board - Board Decisions

Dec 29, 2011

357 N.L.R.B. 1816 (N.L.R.B. 2011)

1816
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 168
2 Sisters Food Group, Inc. and United Food and
Commercial Workers International Union, Lo-
cal 1167. Cases, 21–CA–038915, 21–CA–038932,
and 21–RC–021137
December 29, 2011
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION CASES
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On June 10, 2010, Administrative Law Judge Lana H.
Parke issued the attached decision. The Respondent filed
exceptions and a supporting brief. The General Counsel
and the Charging Party filed separate exceptions and
supporting briefs, and answering briefs to the Respond-
ent’s exceptions. The Respondent submitted a reply
brief to the General Counsel’s answering brief, and an
answering brief to the Charging Party’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision, Order, and Direction of Second Election,
and to adopt the recommended Order as modified and set
forth in full below.1
Overview
The Union commenced an organizational campaign at
the Respondent’s food processing and packaging plant in
2008. On July 17, 2009,2 an election was held pursuant
to a Stipulated Election Agreement. The tally of ballots
showed 66 votes for and 87 votes against the Union, with
24 challenged ballots.3
For the reasons the judge stated, we adopt her findings
that the Respondent violated Section 8(a)(1) of the Act
by promulgating and maintaining a rule prohibiting dis-
tribution of printed matter, and violated Section 8(a)(3)

1 In accordance with our decision in Kentucky River Medical Center,
356 NLRB No. 8 (2010), we modify the judge’s remedy by requiring
that backpay shall be paid with interest compounded on a daily basis.
We shall modify the judge’s recommended Order to conform to our
findings, and to provide for the posting of the notice in accord with J.
Picini Flooring, 356 NLRB No. 9 (2010). For the reasons stated in his
dissenting opinion in J. Picini Flooring, Member Hayes would not
require electronic distribution of the notice. Should the notice need to
be mailed, the Respondent shall mail it to all employees on its payroll
as of February 1, 2009, consistent with the parties’ stipulation during
the hearing that since at least that date the Respondent’s employees
received new-hire packets containing the work rules found unlawful
herein.
2 All dates are in 2009, unless otherwise noted.
3 The parties stipulated during the hearing to sustain 3 of the 24 chal-
lenged ballots, so the remaining challenged ballots are nondetermina-
tive.
and (1) by terminating employee Xonia Trespalacios.4
For the reasons stated below, we further adopt her find-
ings that the Respondent violated Section 8(a)(1) by
maintaining work rules prohibiting the unauthorized so-
licitation of contributions and the “inability or unwilling-
ness to work harmoniously with other employees” as
well as its policy requiring arbitration of employment-
related disputes.5 Contrary to the judge, however, we
find that the Respondent’s rules prohibiting leaving the
plant or taking breaks without permission were lawful.6
We adopt the judge’s recommendation, for the reasons
she stated, to sustain the Union’s objections relating to
Trespalacios’ termination.7 Contrary to the judge, how-
ever, we also find that the Respondent’s distribution of
antiunion paraphernalia to employees on the day of the
election interfered with employee free choice, and we
rely on this objectionable conduct as a further basis for
setting aside the election.8 Finally, we remand the Un-
ion’s request that the rerun election be held off premises
controlled by the Respondent with instructions guiding
the Regional Director’s exercise of his sound discretion
over the selection of the election site.
Analysis
1. The Respondent’s work rules include a prohibition
on the “[u]nauthorized soliciting of contributions on
Company premises.” We agree with the judge that the
Respondent violated Section 8(a)(1) by maintaining this
rule. To determine whether the maintenance of a chal-
lenged rule is unlawful, the first inquiry is “whether the
rule explicitly restricts activities protected by Section 7.”
Lutheran Heritage Village-Livonia, 343 NLRB 646, 646
(2004) (emphasis in original). If so, the rule is unlawful.
If not, “the violation is dependent upon a showing of one
of the following: (1) employees would reasonably con-
strue the language to prohibit Section 7 activity; (2) the
rule was promulgated in response to union activity; or (3)

4 In finding the latter violation, Member Hayes notes that the securi-
ty camera video footage of Trespalacios’ allegedly hostile encounter
with a coworker, on which the Respondent relied to terminate her, was
inconclusive and susceptible to differing interpretations. Under those
circumstances, he agrees that the Respondent’s failure to thoroughly
investigate the incident supports an inference that the discharge was
unlawful.
5 As stated in his dissenting opinion, Member Hayes would not find
these violations.
6 We deny the Union’s request for special remedies that are not war-
ranted in the circumstances of this case and are beyond the scope of the
Board’s usual remedies.
7 In doing so, we additionally rely on the dissemination of infor-
mation concerning the discharge to about 80 unit employees by Tracey
Reilly, the Respondent’s vice president of operations, on July 13, 4
days before the election.
8 Member Hayes finds it unnecessary to reach this issue.
1817
2 SISTERS FOOD GROUP, INC.

the rule has been applied to restrict the exercise of Sec-
tion 7 rights.” Id. at 647.
As the Board observed in Lutheran Heritage, “a rule
prohibiting employee solicitation, which is not by its
terms limited to working time, would violate Sec. 8(a)(1)
under this standard, because the rule explicitly prohibits
employee activity that the Board has repeatedly found to
be protected by Sec. 7.” Id. at 646 fn. 5. The Respond-
ent’s prohibition of solicitation is not limited to working
time, and thus it explicitly restricts activities protected by
Section 7. Moreover, contrary to the Respondent and our
dissenting colleague, the rule is unlawful even though it
is limited to the solicitation of contributions since solici-
tation of contributions to support an incipient organizing
drive, to help a fired fellow employee, and for many sim-
ilar purposes is protected by Section 7.
2. We also affirm the judge’s finding that the Re-
spondent’s policy requiring its employees to submit “all
[employment] disputes and claims” to binding arbitration
is unlawful. In U-Haul Co. of California, 347 NLRB
375, 377–378 (2006), enfd. 255 Fed. Appx. 527 (D.C.
Cir. 2007), the Board found that a similar policy requir-
ing arbitration of “all disputes relating to or arising out of
an employee’s employment . . . [including] any other
legal or equitable claims and causes of action recognized
by local, state, or federal law or regulations” violated
Section 8(a)(1). There, as here, employees would rea-
sonably read the broad language of the policy to prohibit
the filing of unfair labor practice charges with the Board,
even though the policy did not explicitly restrict access
to the Board. Id. at 377.
The Respondent and our dissenting colleague argue
that the policy is lawful because it is explicitly limited to
claims “that may be lawfully [] resolve[d] by arbitration.”
(emphasis added). They argue that, in these circum-
stances, employees would reasonably understand that the
policy did not prohibit the filing of charges with the
Board. The Board, however, rejected a similar conten-
tion in U-Haul, above at 377–378, where it found that
language arguably limiting the mandatory arbitration
policy to claims “a court of law would be authorized to
entertain” did “nothing to clarify that the arbitration poli-
cy does not extend to the filing of unfair labor practice
charges.” Id. at 377–378. There, as here, the limiting
language in the Respondent’s arbitration policy does not
by its terms specifically exclude NLRB proceedings, and
“most nonlawyer employees” would not be sufficiently
familiar with the limitations the Act imposes on manda-
tory arbitration for the language to be effective. Id. at
378.
3. We also affirm the judge’s finding that the Re-
spondent violated Section 8(a)(1) by maintaining a rule
subjecting employees to discipline for the “inability or
unwillingness to work harmoniously with other employ-
ees.” In Flamingo Hilton-Laughlin, 330 NLRB 287, 295
(1999), the Board found unlawful a rule that prohibited,
among other things, “[u]sing loud, abusive or foul lan-
guage.” The Board reasoned that “[b]ecause the [rule
did] not define abusive or insulting language or conduct,
. . . [it] could reasonably be interpreted as barring lawful
union organizing propaganda.” Id. Like the rule in Fla-
mingo Hilton-Laughlin, the Respondent’s rule does not
define what it means to “work harmoniously” (or to fail
to do so). Its patent ambiguity distinguishes it from
those conduct rules found to be lawful in Palms Hotel &
Casino, 344 NLRB 1363, 1367–1368 (2005), and Lu-
theran Heritage, supra at 647–649, cited by our dissent-
ing colleague, that were more clearly directed at unpro-
tected conduct. In these circumstances, we agree with
the judge that the Respondent’s rule was sufficiently im-
precise that it could encompass any disagreement or con-
flict among employees, including those related to discus-
sions and interactions protected by Section 7, and that
employees would reasonably construe the rule to prohibit
such activity. See Lutheran Heritage, supra at 646.
4. The judge found that the Respondent’s rules prohib-
iting “[l]eaving a department or the plant during a work-
ing shift without a supervisor’s permission” and
“[s]topping work before shift ends or taking unauthor-
ized breaks” violated Section 8(a)(1) because they were
“impermissibly overbroad.” We disagree.
Applying Lutheran Heritage, we find first that these
rules do not explicitly restrict Section 7 activities. On
their face, they only prevent an employee from taking
unauthorized leaves or breaks and do not expressly re-
strict concerted action by employees.9 Further, an em-
ployee reading these rules would not reasonably construe
them to prohibit conduct protected by Section 7. In La-
bor Ready, Inc., 331 NLRB 1656, 1656 fn. 2 (2000), the
Board held that a rule prohibiting “walk[ing] off” the job
was unlawfully overbroad. Employees would reasonably
understand such a rule to prohibit Section 7 activity, such
as a strike, given the common use of the term “walk out”
as a synonym for a strike. The rules here, in contrast,
prohibit only leaving a department or plant during a shift
without permission, stopping work before a shift ends,

9 The General Counsel does not contend that the Respondent prom-
ulgated these rules in response to the union organizing campaign at the
Respondent’s facility. And the Respondent did not apply them to re-
strict the exercise of Sec. 7 rights.
1818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and taking unauthorized breaks. For these reasons, we
find that they are lawful.10
5. As noted above, we have adopted the judge’s rec-
ommendation to sustain the Union’s Objections 4 and 37,
relating to Trespalacios’ termination, and to set aside the
election. The Union additionally alleged in Objections
12, 45, and 50 that the Respondent’s distribution of T-
shirts and beanies to employees on the day of the election
constituted objectionable conduct. The judge overruled
those objections, finding that there was no evidence that
the Respondent disseminated any coercive communica-
tions or information regarding the Union or the election
along with the T-shirts and beanies. In its exceptions, the
Union points out that representatives of the Respondent
were involved in the distribution of the T-shirts and
beanies. We find merit in this exception.11
Helen Marquez, the Respondent’s Production Manag-
er, dropped off T-shirts and beanies imprinted with the
Respondent’s name and logo for Laura Perez, a laundry
room employee, to distribute on the day of the election.
In the context of a campaign during which the Respond-
ent vigorously sought to persuade employees to vote
against representation and because these items were dis-
tributed on the day of the election, we find that they were
and would have been understood by the employees to be
campaign paraphernalia.
On the morning of the election, pursuant to the Re-
spondent’s direction, Perez handed out these T-shirts and
beanies to any interested employee while otherwise per-
forming her normal duties at the laundry room distribu-
tion center. She also went to the employee cafeteria and
offered the same items to employees there. Perez subse-
quently summoned Marquez to the area where the items
were being distributed because employees were grabbing
the items in a disorderly fashion. According to Marquez,
Perez wanted her to clarify to the employees that they
could take one T-shirt or one beanie, but not both.
Marquez testified that she did as Perez had asked, and

10 In deciding this issue, we do not rely on Crowne Plaza Hotel, 352
NLRB 382 (2009), a case issued by two Board Members, and cited by
the judge. See New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635
(2010); Hospital Pavia Perea, 355 NLRB No. 215, slip op. at 1 fn. 2
(2010) (recognizing that two Board members “lacked authority to issue
an order”).
11 As noted, Member Hayes finds it unnecessary to resolve these lat-
ter objections.
In the absence of exceptions, we adopt pro forma the judge’s over-
ruling of Objections 14, 22, 39, and 46. The Union also excepts to the
judge’s overruling of Objections 2 and 51, but failed to present any
supporting arguments. Therefore, in accordance with Sec. 102.46(b)(2)
of the Board’s Rules and Regulations, we disregard those exceptions.
Naples Community Hospital, 355 NLRB No. 171, slip op. at 1 fn. 4
(2010). We find it unnecessary to pass on the judge’s findings regard-
ing the remaining objections.
that she then answered a question from an employee re-
garding whether temporary associates could take any
items.
Employers may make campaign paraphernalia availa-
ble to employees at a central location, provided that su-
pervisors are absent from the distribution process and
there is no other coercive conduct in connection with the
distribution. Circuit City Stores, 324 NLRB 147 (1997).
However, “employers may not distribute campaign para-
phernalia in a manner pressuring employees to make an
observable choice that demonstrates their support for or
rejection of the union.” Id. Here, the Respondent did not
simply provide a supply of T-shirts and beanies at a cen-
tral location; it used employee Perez during her working
hours, and while performing her otherwise normal duty
of distributing laundry to employees, to distribute the
paraphernalia. Cf. Black Dot, Inc., 239 NLRB 929, 929
(1978) (“mere availability” of antiunion buttons in a
flowerpot hung on a wall could not reasonably tend to
interfere with employees’ free choice). Because Perez
could not have engaged in this activity without the Re-
spondent’s permission, it would have been evident to all
employees that she was acting as the Respondent’s agent
in distributing the paraphernalia even if she was not an
agent for any other purpose. Moreover, Marquez, a
manager and an agent of the Respondent,12 was not only
present during the distribution but took control of it when
Perez was unable to maintain order, and thereafter regu-
lated the dissemination of the campaign paraphernalia.
Additionally, the employees were aware that the Re-
spondent was monitoring their actions because, just a
few days earlier, the Respondent showed employees se-
curity camera footage from the cafeteria of the incident
that led to Trespalacios’ termination. By these actions,
the Respondent created a situation where employees
were pressured to make an “observable choice” on the
day of the election that demonstrated their support for or

12 We find that Marquez is an agent of the Respondent. According
to Reilly, Marquez was involved in Trespalacios’ termination: Marquez
translated for Reilly and Trespalacios during the termination meeting
and, after the meeting, Marquez escorted Trespalacios to retrieve her
lunchbox before Trespalacios left the plant. Marquez also facilitated
the resolution of an incident between employee Ricardo Lopez and
Manager Mark Slade to which she was a witness: Lopez asked her
whether he could speak with human resources about the incident;
Marquez then directed him to human resources, emailed the human
resources manager with her account of the incident, and participated in
the meetings between Lopez and human resources. In these circum-
stances, where the Respondent placed Marquez in a position identifying
her with management, employees would reasonably understand that she
was acting on behalf of management. See Ella Industries, 295 NLRB
976, 976 fn. 2 (1989) (employee who served as translator and conduit
for employer’s communications to employees regarding union election
was agent for that purpose).
1819
2 SISTERS FOOD GROUP, INC.

rejection of the union. Thus, the Respondent’s distribu-
tion of the T-shirts and beanies was coercive, and tended
to interfere with employee free choice in the election.
6. The Petitioner asks that we order that the rerun elec-
tion be conducted off the Respondent’s premises. Under
the circumstances of this case, we direct the Regional
Director to consider and resolve this request on remand
consistent with our decision in Austal USA, LLC, 357
NLRB No. 40 (2011).
a. As the Board recently observed in Austal, id., slip
op. at 2, “[t]he Act is silent on the location of elections.”
Thus, the Board must exercise its discretion to select an
appropriate election site. In Halliburton Services, 265
NLRB 1154, 1154 (1982), the Board observed that “it is
clear under the broad remedial powers contained in Sec-
tion 10(c) of the Act and our administrative powers to
conduct elections under Section 9(c)(1)(A) of the Act,
that the Board may designate the site of an election.”
(Footnote omitted.)
Consistent with the Board’s broad delegation of au-
thority to its regional directors to conduct elections, pur-
suant to Section 3(b) of the Act, the Board has left the
selection of the election site within the sound discretion
of its regional directors. We explained in Austal that this
practice is based on the fact that “the regional director,
through his agents, can investigate potential sites and
evaluate their suitability.” Id., slip op. at 3. Over half a
century ago, the Board similarly explained, “[t]hose fac-
tors which determine where an election may best be held
are peculiarly within the Regional Director's knowledge.
His close view of the election scene, including the many
imponderables which are seldom reflected in a record, is
essential to a fair determination of this issue. We are
convinced that it would be administratively unfeasible
for the Board to make such determinations in every
case.” Manchester Knitted Fashions, 108 NLRB 1366,
1366 (1954). The Petitioner in this case does not ask that
we intrude into the Regional Director’s discretion to se-
lect the precise site for conducting the election based on
his review of the physical site and inquiry into its availa-
bility by actually selecting the site ourselves. Rather, the
Petitioner asks only that we preclude the Regional Direc-
tor, based on the facts of this case, from conducting the
rerun election on the Respondent’s premises. We decline
at this time to limit the Regional Director’s discretion in
even this limited respect, concluding that it is more ap-
propriate to direct that the Regional Director resolve this
matter on remand.
The regions’ current practice is ordinarily to conduct
rerun elections on the employer’s premises, so long as
the employer consents. The source of the current prac-
tice is the Board’s nonbinding Casehandling Manual
(Part Two) Representation Proceedings Section 11302.2,
which provides that in “the absence of good cause to the
contrary,” any election should be held “somewhere on
the employer’s premises.”13 As far as we can determine,
the Board has never provided an express rationale for
this practice, although in most instances the ease of vot-
ing and cost are obvious factors weighing in favor of
voting at the workplace. In addition, the Board has until
recently provided limited guidance as to when the ordi-
nary practice should be departed from in a rerun elec-
tion,14 except, consistent with the Casehandling Manual,
in extreme cases of “egregious and pervasive” unfair
labor practices.15 In other words, the Board has appro-
priately vested the regional directors with discretion to
choose the election site based on their direct appraisal of
the physical layout and other factors that they may deem
appropriate to consider on a case-by-case basis.
In Austal, the Board directed the Regional Director to
consider the following factors when deciding whether to
hold a rerun election off the employer’s premises:

First, the Petitioner’s objection to holding the
third election on the Employer’s premises, the Em-

13 The Board has not required that elections be conducted on the
employer’s premises, as the Board has invested regional directors with
discretion to conduct mail ballot elections under appropriate circum-
stances. See GPS Terminal Services, Inc., 326 NLRB 839, 839 (1998)
(upholding Regional Director’s decision to conduct mail-ballot election
when employees were “scattered because of their job duties”); San
Diego Gas & Electric, 325 NLRB 1143, 1144 (1998) (Regional Direc-
tor has discretion to conduct elections using “a combination of mail and
manual ballots”); M & N Highway Service, 326 NLRB 451 (1998).
14 Sec. 11302.2 of the Casehandling Manual provides, in part:
It may also be necessary to conduct an election off the employer’s
premises where there are egregious or pervasive employer unfair labor
practices. Thus, where a request to proceed has been filed, the Re-
gional Director may direct that the election be conducted away from
the employer’s premises in situations where an election held on the
employer’s premises would compromise the prospect that employees
will be able to exercise free choice. Examples of such conduct might
include discharges or other discrimination directed at a significant por-
tion of the voting unit, threats of plant closure, or other serious conse-
quences if the union were to prevail and threats of violence to union
adherents. In exercising discretion, the Regional Director should con-
sider factors such as size of the unit, whether the conduct is ongoing,
the extent to which the unfair labor practices are known to the voters,
and the potential impact upon voter participation of having the elec-
tion off premises.
15 See Fieldcrest Cannon, Inc., 318 NLRB 470, 474 (1995), enfd. in
relevant part 97 F.3d 65, 74 (4th Cir. 1996) (ordering rerun election be
conducted off the employer’s premises in light of “egregious and per-
vasive” unfair labor practices including threats of discipline and dis-
charge, coercive interrogation, threats of plant closing, threats of depor-
tation, and discriminatory reassignments, suspensions and discharges).
1820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer’s request that it be held there, and the grounds
therefor.
Second, the extent and nature of the Employer’s
prior unlawful and objectionable conduct and the
fact that the Petitioner has made a request to proceed
despite the fact that the compliance period relating to
the prior unlawful conduct has not yet closed. See
Casehandling Manual Section 11302.2.
Third, the advantages available to the Employer
over other parties to this proceeding if the election is
conducted on premises it owns or otherwise controls.
Finally, the Regional Director must evaluate the
alternative site proposed by the Petitioner, as well as
other readily available sites. In evaluating these
sites, the Regional Director shall consider their ac-
cessibility to employee-voters, the ability of the
Board to conduct and properly supervise the election
on the site, whether the parties to this proceeding
have equal access to and control over the site, and
the cost of conducting the election on the site.

Id., slip op. at 3.
These same factors must be considered in the present
case. In accord with our longstanding precedent, and
particularly in the absence of any record on the issue, it is
a task for the Regional Director in the first instance to
adduce and weigh evidence relevant to these factors in
determining where to conduct the rerun election. Any
party aggrieved by that determination may seek review
by the Board.
b. In Austal, we were unable to provide further guid-
ance because the matter came to the Board on a request
for special permission to appeal only a short time before
the election was set to begin.16 We thus take this oppor-
tunity to elaborate further on the considerations that
should guide the Regional Director’s exercise of discre-
tion in this regard.
First, the Regional Director should consider the Peti-
tioner’s objection to holding the rerun election on the
Employer’s premises, the Employer’s request that it be
held there, and the grounds therefor. Here, as in Austal,
the Petitioner objects to the Regional Director conduct-
ing the rerun election on the Respondent’s premises.
This alone is a relevant consideration.17 All parties to a
Board-supervised election, whatever its outcome, should
believe, insofar as possible, that it was conducted under

16 For reasons set forth in his dissenting opinion, Member Hayes
does not join sec. 6,b of the majority opinion.
17 The dissent suggests that we hold that the petitioner’s preference
is the decisive factor, but Austal holds, as we reiterate above, that the
Regional Director should consider the preferences of all the parties to
the representation proceeding.

conditions that were fair to all. The Petitioner objects on
the generally applicable grounds that the rerun election
should not “be conducted on the premises of one side in
the election process who is decided[ly] not neutral.” But
the Petitioner also objects on the more specific grounds
that the Respondent used its control over the worksite on
the election day “through the use of security guards, de-
laying voters, posting antiunion literature in the voting
area and having security cameras on.” Both grounds for
objection are entitled to be weighed by the Regional Di-
rector. Further, the Respondent did not respond to the
Petitioner’s request that the Board order that the rerun
election be held off the Respondent’s premises. On re-
mand, the Regional Director shall afford the Respondent
an opportunity to address (but not litigate) this issue.
Second, the Regional Director should consider the ex-
tent and nature of the Respondent’s prior unlawful and
objectionable conduct and whether the Petitioner makes
a request to proceed despite the fact that the compliance
period relating to the prior unlawful conduct has not yet
closed. See Casehandling Manual Section 11302.2.
Here, the Respondent discharged a key union supporter,
a member of the organizing committee who had distrib-
uted union literature at the facility, 4 days before the
election. Later that same day, the Respondent called a
meeting of all employees and played a security video of
the incident that led to the discharge, which the Re-
spondent mischaracterized as showing the employee
“threatening, intimidating, and physically assaulting an-
other employee who used to be her friend because she
changed her mind and decided to vote against the union.”
In addition, the Respondent maintained several unlawful
rules, including an overbroad prohibition on distributions
of literature. During the preelection period, these rules
may have restricted the ability of prounion employees to
spread their message (while, as described below, the Re-
spondent faced no such restrictions on spreading its mes-
sage). Finally, the Respondent engaged in a form of un-
lawful polling on the day of the election by distributing
the T-shirts and beanies. On remand, the Regional Di-
rector shall consider the extent and nature of this unlaw-
ful and objectionable conduct. Given the pendency of
the Respondent’s exceptions to the judge’s findings, the
question of whether the Petitioner would proceed with a
rerun election despite these unfair labor practices and the
nonexhaustion of the compliance period was not ripe
until now. On remand, the Regional Director shall afford
the Petitioner an opportunity to make that choice.
1821
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Third, the Regional Director must evaluate “the ad-
vantages available to the Employer over other parties to
this proceeding if the election is conducted on premises it
owns or otherwise controls.” Austal, supra, slip op. at
3.18 Employers are, of course, parties to representation
proceedings of which elections are critical elements un-
der the Board’s regulations. 29 CFR § 102.8 (2011).
See also Casehandling Manual Section 11008.1. Aside
from this formal designation, employers have an interest
in the results of elections conducted under Section 9 of
the Act because those results are a predicate for an em-
ployer’s legal duty to recognize a representative of its
employees. It is an unfair labor practice for an employer
to refuse to recognize and bargain with a labor organiza-
tion selected by its employees in an election conducted
under Section 9 of the Act. For this reason, our experi-
ence teaches that some employers choose to conduct an
active campaign prior to a Board-supervised election in
an effort to convince their employees to remain unrepre-
sented. The Respondent did so in this case. The fact that
employers are parties to representation proceedings, not
uninterested and, in many cases, not neutral parties,
weighs against holding elections on their property if do-
ing so gives them an advantage over other parties.19
Our experience further reveals that many employers
control access to their premises, often for operational
reasons, and often choose to deny access to union repre-
sentatives. Employers’ right to bar nonemployee union
organizers from its property is the general rule. See
Lechmere v. NLRB, 502 U.S. 527 (1992); accord: NLRB
v. Babcock & Wilcox Co., 351 U.S. 105 (1956).20 Our
experience also reveals that many employers bar nonem-
ployee union organizers from their property on the day of
the election even when the election is taking place on the
employer’s premises. Indeed, the Board has held that the
failure of union representatives to vacate the premises at
the employer’s request may constitute objectionable con-

18 Our dissenting colleague assumes that this factor will always
weigh against holding the election at the workplace, but that is not the
case. Some workplaces may be open to the public, including represent-
atives of all parties to the representation proceeding, for example, a
college campus. Even when that is not the case, the employer may
permit access by representatives of the other parties. And even when
that is not the case, the regional director may be able to select the pre-
cise location of the polls and the hours of voting so that conducting the
election at the worksite does not advantage any party, for example,
conducting the election just before employees begin work at a location
on the work site accessed directly from a public sidewalk.
19 Notably, the Casehandling Manual provides that when an election
is held off the employer’s premises, it cannot be held in a hall “used as
a headquarters by a union.” Sec. 11302.2.
20 Limited exception is made for remote or isolated employment lo-
cations where the employees are beyond the reach of reasonable union
efforts to communicate with them, and when the employer's access
rules discriminate against unions. Lechmere, supra at 535.
duct by the union warranting setting aside the election on
the grounds that it suggests to employees that the em-
ployer is powerless to defend its property rights. See
Ansted Center, 326 NLRB 1208, 1213–1214 (1998);
Phillips Chrysler Plymouth, 304 NLRB 16 (1991); see
also Chrill Care, Inc., 340 NLRB 1016 (2003). Employ-
ers likewise retain their right on election day to regulate
and restrict employee posting of campaign material on
company property and to restrict employee campaign
conduct during worktime and in work areas so long as
the restrictions are consistent with Republic Aviation
Corp. v. NLRB, 324 U.S. 793 (1945), not promulgated in
response to the protected activity, and not otherwise dis-
criminatory. An employer’s use of its premises to cam-
paign, through managerial and supervisory employees or
retained third-party consultants, while excluding union
representatives and limiting employee campaigning to
the full extent permitted under Republic Aviation and its
progeny has not been held to violate the Act, NLRB v.
Steelworkers (NuTone), 357 U.S. 357 (1958); Hale Nani
Rehabilitation, 326 NLRB 335 (1998), even on election
day.
In sum, when an election is held on an employer’s
premises during work hours, the employer retains access
to its employees during the voting period, and its highest-
ranking officials or any third parties the employer desig-
nates may speak to the employees in one-on-one conver-
sations at their work stations or in most other locations21
in the workplace and urge them to vote against the un-
ion.22 At the same time, the employer may prevent union
representatives from gaining access to employees during
that same crucial period. Given employers’ right to con-
trol their premises in these respects, holding an election
on the employer’s premises raises questions about the
parties’ relative opportunities to campaign, particularly
in light of the Board’s well-established concern about the
influence of campaign conduct in the 24-hour period
immediately preceding the election. See Peerless Ply-
wood Co., 107 NLRB 427 (1953) (prohibition against
election speeches to massed assemblies of employees
within 24 hours of election); Milchem, Inc., 170 NLRB
362 (1968) (strict rule against prolonged conversations
between representatives of any party to the election and
voters waiting to cast ballots); Kalin Construction Co.,
321 NLRB 649 (1996) (changes in paycheck process
prohibited 24 hours before election). The significant
advantage obtained by the party who obtains the “last,

21 The only exception is conversations in the “locus of final authori-
ty.” See, e.g., General Shoe Corp., 77 NLRB 124, 127 (1948), enfd.
192 F.2d 504 (6th Cir. 1951), cert. denied 343 U.S. 904 (1952).
22 Electro-Wire Products, 242 NLRB 960 (1979); Associated Milk
Producers, 237 NLRB 879 (1978).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1822
most telling word” has been recognized by the Board,23
as well as in political campaign scholarship.24 That it is
also recognized by employers is evidenced by the fact
that, despite the Board’s lack of authority to require that
elections take place on employers’ property, employers
consent to holding elections on their premises in almost
all instances.25 While the existing empirical work on this
subject is not definitive, it is persuasive and creates con-
cern that holding representation elections on premises
controlled by one party without the consent of all other
parties is inconsistent with the Board’s obligation to “in-
sure[] that no party gains a last minute advantage over
the other.” Milchem, supra at 362.26

23 See Peerless Plywood Co., supra at 429 (“Such a speech, because
of its timing, tends to create a mass psychology which overrides argu-
ments made through other campaign media and gives an unfair ad-
vantage to the party, whether employer or union, who in this manner
obtains the last most telling word.”).
24 See, e.g., Seth J. Hill, et al., The Duration of Advertising Effects in
Political Campaigns, prepared for the American Political Science As-
sociation Annual Meeting, August 29-September 3, 2007, Chicago, IL,
available at
http://web.mac.com/vavreck/Lynn_Vavreck/Working_Papers_files/HL
VZapsa8.doc (findings suggest the existence of “an electorate in which
swing voters . . . are not persuaded by the totality of campaign infor-
mation, but simply decide on the basis of whatever message they have
encountered most recently”) (cited with permission of authors); The
Duration of Advertising Effects in the 2000 Presidential Campaign,
prepared for the 2008 Midwest Political Science Association Annual
Meeting. Available at
http://bellarmine2.lmu.edu/economics/papers/HLVZ-APSA.pdf (“ad-
vertising in the home stretch— perhaps just the last week – appears to
have a disproportionate impact”) (cited with permission of the authors);
Fernanda Leite Lopez de Leon, The Tuesday Advantage of Politicians
Endorsed by American Newspapers, prepared for the American Eco-
nomic Association Annual Meeting, Ja. 6–9, 2011, available at
http://www.aeaweb.org/aea/2011conference/program/retrieve.php?pdfi
d=64 (documenting electoral advantage of candidates endorsed by
newspapers on election day compared to those receiving earlier en-
dorsements) (cited with permission of author).
25 We note that our dissenting colleague is simply wrong when he
suggests that a factor weighing in favor of holding an election on the
work site “is the symbolic import to employees of requiring that their
employer accede to the presence of Board agents and the conducting of
a Board election on its premises,” because the Board has no authority to
require the employer to so accede.
26 Contrary to the dissent’s assertion, an employer’s exercise of its
constitutional right to freely speak to employees concerning an upcom-
ing or even ongoing election is entirely irrelevant to the choice of elec-
tion sites under Austal as elaborated by our holding today. Nor are any
advantages or disadvantages generally possessed by any party prior to
or even after the opening of the polls relevant in any way. The only
relevant consideration is “the advantages available to the Employer
over other parties to this proceeding if the election is conducted on
premises it owns or otherwise controls.” Austal, supra, slip op. at 3
(emphasis added). Whether the employer has or is likely to avail itself
of those advantages is not the question. In other words, the only rele-
vant consideration is whether the choice of election sites advantages
one party over another.
The union, after all, also has a right to speak freely, but we seriously
doubt that our colleague would consider it to be irrelevant to the re-
In this case, during the first election, the Respondent
utilized all the advantages afforded to it by the election
being held on its premises. On the day of the election,
employees arriving at the facility to vote were greeted by
six security guards (the Respondent typically utilized
one) and law enforcement officers from the Sheriff’s
Department. The Respondent stopped and held at its
entrance gate several employees who arrived to vote in
the election. Even after granting these employees admis-
sion to the premises, the Respondent required that its
agents escort several of them to the voting area.27 In
some instances, the Respondent’s conduct led to it taking
up to an hour for employees to vote. In addition, the
Respondent permitted several of its campaign consultants
free access to the premises on election day, which they
utilized to speak to numerous employee-voters one-on-
one before they voted. One employee testified that a
consultant was telling employees about a company in
another state that had purportedly gone “bankrupt” be-
cause of a union. At the same time, the Respondent re-
stricted access to the facility by nonemployee union rep-
resentatives to attendance at the preelection conference
and inspection of the polling place, the minimum re-
quired under the Board’s Casehandling Manual.28 Final-
ly, the Respondent’s campaign literature was ubiquitous
throughout the premises, and employees had to pass
some of the posters on their way to vote. Employees also
had to pass by four or five operational security cameras
going to the polls. All of this must be considered by the
Regional Director on remand.
Fourth, on remand, the Regional Director must evalu-
ate any alternative sites proposed by the Petitioner as
well as others known or discovered by the Regional Di-
rector. In evaluating these sites, the Regional Director
shall consider their accessibility to employee-voters,29
the ability of the Board to conduct and properly super-
vise the election on the site, whether the parties to this

gional director’s exercise of his or her discretion in choosing the site of
the election whether the site chosen for the election is accessible to
union but not employer representatives. Indeed, our colleague express-
es serious concern about employers not having equal access to election
sites other than their own premises. But under Austal this is also a
relevant consideration, as Austal clearly states that in considering any
alternative locations the regional director must consider “whether the
parties to this proceeding have equal access to and control over the
site.” Id.
27 Cf. North American Plastics Corp., 326 NLRB 835(1998) (em-
ployer refused to allow all potentially eligible voters onto its premises
to vote).
28 NLRB Casehandling Manual (Part Two) Representation Proceed-
ings Sec. 11318.3.
29 Consideration of this factor is responsive to the dissent’s concern
about voter turnout. Depending on its precise location, an off-site
polling place may be just as accessible and convenient for employee
voters as an on-site location.
2 SISTERS FOOD GROUP 1823
proceeding have equal access to and control over the site,
and the cost of conducting the election on the site.30 It is
in this area, the evaluation of the suitability of alternative
sites, that the Board must defer to the sound discretion of
its regional directors. See Mental Health Association,
Inc., 356 NLRB No. 151, slip op. at 1–2 fn. 5 (2011)
(declining “to deviate from the Board’s current practice
of leaving the determination of the appropriate method
and location for initial and rerun elections to the discre-
tion of the Regional Director”); Federated Logistics &
Operations, 340 NLRB 255, 258 fn. 12 (2003) (refusing
to rule directly on union’s request for a rerun election off
the employer’s site, instead deferring to Regional Direc-
tor’s “judgment on the issue of election site”); Hallibur-
ton Services, 265 NLRB at 1154 (same). But, as we held
in Austal, the Regional Director must exercise his discre-
tion after considering the factors described above. 357
NLRB slip op. at 3 (“We are unable to determine wheth-
er the Regional Director abused her discretion or, indeed,
whether she exercised any discretion at all.”)
7. Fresh & Easy Neighborhood Market, Inc. moved to
intervene and supplement the record with a Declaration
by its chief human resources officer indicating that it
purchased the Respondent’s assets on June 28, 2010,
shortly after the judge issued her decision, and that a
majority of the Respondent’s employees accepted em-
ployment with Fresh & Easy under terms that differed
significantly from those offered by the Respondent. Ac-
cording to the motion, Fresh & Easy seeks to intervene
for the purpose of objecting to any direction of a second
election in this matter on the basis that such an election
would be predicated upon a stipulated election agreement
to which Fresh & Easy was not a party.31 The facts as-
serted in the Declaration are not relevant to our determi-
nation that the election must be set aside or our disposi-
tion of the complaint allegations in this case. According-
ly, we deny the motion to supplement the record, and we
deny Fresh & Easy Neighborhood Market, Inc.’s motion
to intervene without prejudice to its right to renew the
motion before the Regional Director in connection with
subsequent proceedings in this case. See Section
102.48(d)(1) of the Board’s Rules and Regulations.

30 In this respect, the applicable provision of the Casehandling Man-
ual is sound:
If an election is held away from the employer’s premises, it should be
held as close by as is appropriate and necessary in a public building,
social hall (other than one used as headquarters by a union), or a hotel,
motel, school, church, or garage. A place normally used as a munici-
pal voting place is particularly desirable. A van or truck may also be
used if other accommodations are not found.
Sec. 11302.2.
31 The Union filed a statement of position with respect to the motion,
and the General Counsel filed an opposition to the motion.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent maintained unlaw-
ful rules prohibiting unauthorized soliciting of contribu-
tions, unauthorized distribution of printed matter, and the
“inability or unwillingness to work harmoniously with
other employees,” and an unlawful policy requiring em-
ployees to submit all employment disputes and claims to
binding arbitration, we shall order the Respondent to
rescind the rules and policy.32
Having found that the Respondent has unlawfully ter-
minated employee Xonia Trespalacios, we shall order the
Respondent to offer Trespalacios immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges
previously enjoyed. We shall order the Respondent to
make Trespalacios whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against her. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8
(2010).
In addition, the Respondent shall be required to re-
move from its files any references to Trespalacios’ un-
lawful discharge, and to notify her in writing that this has
been done and that the discharge will not be used against
her in any way.
ORDER
The National Labor Relations Board orders that the
Respondent, 2 Sisters Food Group, Inc., Riverside, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from

32 Regarding the rule and policy violations, we will modify the
judge's recommended Order to conform with Guardsmark, LLC, 344
NLRB 809, 811–812 (2005). Pursuant to that decision, the Respondent
may comply with the Order by rescinding the unlawful provisions and
republishing its Rules of Conduct and employee handbook without
them. We recognize, however, that republishing the Rules of Conduct
and handbook could entail significant costs. Accordingly, the Re-
spondent may supply the employees either with Rules of Conduct and
handbook inserts stating that the unlawful rules have been rescinded, or
with new and lawfully worded rules on adhesive backing which will
cover the old and unlawfully broad rules, until it republishes the Rules
of Conduct and handbook without the unlawful provisions. Thereafter,
any copies of the Rules of Conduct and handbook that are printed with
the unlawful rules must include the new inserts before being distributed
to employees. Id. at 812 fn. 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1824
(a) Maintaining a work rule prohibiting unauthorized
soliciting of contributions on company premises.
(b) Maintaining a work rule prohibiting distribution of
printed matter on company premises without permission.
(c) Maintaining a work rule subjecting employees to
discipline for the “inability or unwillingness to work
harmoniously with other employees.”
(d) Maintaining a policy requiring its employees to
agree to submit all employment disputes and claims to
binding arbitration as a condition of employment.
(e) Discharging or otherwise discriminating against
employees for supporting United Food and Commercial
Workers International Union, Local 1167 or any other
labor organization.
(f) 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) Rescind the work rule prohibiting unauthorized so-
liciting of contributions on company premises.
(b) Rescind the work rule prohibiting distribution of
printed matter on company premises without permission.
(c) Rescind the work rule subjecting employees to dis-
cipline for the “inability or unwillingness to work har-
moniously with other employees.”
(d) Rescind the policy requiring its employees to agree
to submit all employment disputes and claims to binding
arbitration as a condition of employment.
(e) Furnish all current employees with inserts for the
current Rules of Conduct and employee handbook that
(1) advise that the unlawful rules and policy have been
rescinded, or (2) provide the language of lawful rules or
policy; or publish and distribute revised Rules of Con-
duct and an employee handbook that (1) do not contain
the unlawful rules and policy, or (2) provide the language
of lawful rules or policy.
(f) Within 14 days from the date of this Order, offer
Xonia Trespalacios full reinstatement to her former job
or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
(g) Make Xonia Trespalacios whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, in the manner set forth in the
remedy section of this decision.
(h) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge
and, within 3 days thereafter, notify the employee in
writing that this has been done and that the discharge will
not be used against her in any way.
(i) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post at
its Riverside, California facility copies of the attached
notice, in English and Spanish, marked “Appendix.”33
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 and maintained for 60 consecutive days
in conspicuous places, including all places where notices
to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 1,
2009.
(k) Within 21 days after service by the Region, file
with the Regional Director for Region 21 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
[Direction of Second Election omitted from publica-
tion.]

MEMBER BECKER, dissenting in part.
The Petitioner objects to the Employer’s conduct of
the mandatory employee meeting where Vice President
Reilly showed the video of the incident involving Tres-
palacios and explained, falsely, as we found above, that
Trespalacios had been terminated for “threatening, intim-
idating, and physically assaulting another employee who
used to be her friend because she changed her mind and
decided to vote against the union.” Petitioner acknowl-

33 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
2 SISTERS FOOD GROUP 1825
edges that the meeting, which took place 4 days before
the election, is not objectionable under Peerless Plywood
Co., 107 NLRB 427 (1953), because it did not take place
within the 24 hours before the election. But Petitioner
asks the Board to extend the rule of Peerless Plywood to
all mandatory campaign meetings conducted by an em-
ployer during the critical period between the filing of the
petition and the election. Although we need not reach
this issue in order to overturn the results of the election
and order a rerun, as the majority does, I would neverthe-
less reach the issue because of its centrality to the fair
conduct of Board-supervised elections.1
Board-supervised elections have been called the
“crown jewel of the Board’s accomplishments” under the
Act. London’s Farm Dairy, Inc., 323 NLRB 1057, 1060
(1997) (Member Higgins, dissenting). By continuing to
permit employers to require that employees attend cam-
paign meetings as a condition of continued employment,
the Board does not simply tarnish that jewel, it fractures
it. I would not continue down this long but fundamental-
ly misguided path.
The central right established in the Act we enforce is
embodied in its Section 7. Section 7 vests in employees
a right to form, join, or assist labor organizations and to
refrain from any and all such activity. Attending a cam-
paign meeting, whether to hear about the benefits of un-
ion representation or its detriments, is clearly conduct
protected by Section 7. See, e.g., Electric Hose & Rub-
ber Co., 265 NLRB 696, 699 (1982) (employer violated
rights guaranteed by Section 7 by warning employee to
“be careful” if he went to a union campaign meeting).
Section 8 of the Act bars both employers and labor or-
ganizations from coercing employees in the exercise of
their Section 7 rights. It is beyond doubt that if a labor
organization threatened employees in any manner in or-
der to coerce their attendance at a union meeting where
they would be urged to vote in favor of representation or
to prevent their attendance of an employer meeting
where they would be urged to vote against representa-
tion, the labor organization’s conduct would be an unfair
labor practice under Section 8(b)(1)(A). Similarly, in my

1 A 1990 study of over 200 representation elections found that em-
ployers conducted mandatory meetings prior to 67 percentof the elec-
tions. John J. Lawler, Unionization and Deunionization: Strategy,
Tactics, and Outcomes 145 (1990). A more recent study found that in
89 percent of campaigns surveyed, employers required employees to
attend captive audience meetings during work time and that the majori-
ty of employees attended at least five such meeting during the course of
the campaign. Kate Bronfenbrenner & Dorian Warren, The Empirical
Case for Streamlining the NLRB Certification Process: The Role of
Date of Unfair Labor Practice Occurrence, ISERP Working Paper
Series 2011.01 at 6 (June 2011), available at
iserp.columbia.edu/research/working-papers.
view, when an employer conducts a mandatory meeting
to urge employees to vote against representation by a
labor organization, the employer interferes with, re-
strains, and coerces employees in the exercise of their
Section 7 rights under Section 8(a)(1). A mandatory
meeting, by definition, is a meeting employees are re-
quired to attend as a condition of employment. By in-
structing employees to attend a meeting and informing
them it is mandatory, an employer threatens to discharge
or discipline the employees if they choose not to attend.
This violates Section 8(a)(1).
Moreover, the coercion inherent in a mandatory cam-
paign meeting is directly tied to employees’ casting their
ballots in the election. When employees enter the voting
booth, whether it is 25 hours after the meeting or 1 hour
after the meeting,2 they will surely remember not only
that the employer urged them to vote against representa-
tion but that the employer threatened them with termina-
tion or other discipline if they refused to listen to the
employer’s views on the question. Permitting such a
threat to be tied directly to the employer’s position on the
question of representation is not consistent with the em-
ployee free choice protected by Sections 7 and 9 of the
Act. In other words, requiring employees to attend cam-
paign meetings as a condition of employment is also ob-
jectionable.
Nothing in the words of Section 8(c) suggests that the
Board should tolerate such clearly coercive conduct.
Section 8(c) provides:
The expressing of any views, argument, or opinion, or
the dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the pro-
visions of this Act, if such expression contains no threat
of reprisal or force or promise of benefit.
29 U.S.C. § 158(c). This section has no application here for
two, independent reasons.
First, regardless of what is said at a mandatory meet-
ing, a meeting cannot be mandatory without a threat of

2 Under current law, such compelled attendance at a meeting or
compelled participation in a conversation through which employees are
urged to vote against representation is not objectionable at any time
until employees enter the polling area or are waiting in line to vote
unless it involves a “massed assembl[y]” within the meaning of Peer-
less. 107 NLRB at 429. Thus, for example, the Board has held that it
is not objectionable for an employer’s highest ranking officials system-
atically to proceed through the workplace less than 24 hours before a
vote urging all individual employees at their work stations where they
cannot escape the message to cast their ballot against representation.
See Electro-Wire Products, 242 NLRB 960 (1979); Associated Milk
Producers, Inc., 237 NLRB 879 (1978). As explained below, the rule I
would adopt would cover all such compulsion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1826
discipline or discharge for not attending. That threat
clearly falls outside the protection of Section 8(c).
Moreover, Section 8(c), on its face, insulates speech
only from “constitut[ing] or be[ing] evidence of an unfair
labor practice.” The section thus applies only in unfair
labor practice proceedings brought under Section 8 of the
Act and not in representation proceedings under Section
9. In fact, the Board clearly so held in General Shoe
Corp., just 1 year after Congress adopted Section 8(c).
77 NLRB 124, 126 (1948), enfd. 192 F.2d 504 (6th Cir.
1951), cert. denied, 343 U.S. 904 (1952). Since that
time, the Board has expressly and repeatedly reaffirmed
its original construction. See, e.g., Dal-Tex Optical Co.,
137 NLRB 1782, 1787 fn. 11 (1962) (“Congress specifi-
cally limited Section 8(c) to the adversary proceedings
involved in unfair labor practice cases and its has no ap-
plication to representation cases.”); Kalin Construction
Co., 321 NLRB 649, 652–653 (1996). Indeed, the Board
found pure speech to be objectionable and grounds for
overturning an election in Peerless Plywood itself. And
the courts of appeals have recognized that “because of
the need for an atmosphere amenable to rational deci-
sionmaking, the parties to a representation election do
not retain their full panoply of [First Amendment] rights
during the critical period” between the filing of a petition
and the election. Freund Baking v. NLRB, 165 F.3d 928,
935 (D.C. Cir. 1999).
As the District of Columbia Circuit has reminded us,
the Supreme Court has repeatedly instructed that:

The most fundamental principle in any case involving
the interpretation of a statute is that “the ‘starting point’
must be the language of the statute itself.” Lewis v.
United States, 445 U.S. 55, 60 (1980); accord Consum-
er Product Safety Comm’n v. GTE Sylvania, Inc., 447
U.S. 102, 108 (1980); Caminetti v. United States, 242
U.S. 470, 485 (1917). Indeed, that language must be
given conclusive weight unless the legislature express-
es an intention to the contrary.

Electrical Workers Local 474 v. NLRB, 4814 F.2d 697, 710
(D.C. Cir. 1987)(parallel citations omitted). Indeed, when
the language of our statute is clear and unambiguous, we are
not permitted to look behind it at the legislative history. See
Beverly Health & Rehabilitation Services v. NLRB, 317
F.3d 316, 321 (D.C. Cir. 2003) (when the language of the
Act “manifests an ‘unambiguously expressed intent’ [it]
precludes the Board's [contrary] interpretation”). The lan-
guage of Section 8(c) clearly and unambiguously does not
protect threats and does not apply in representation cases.
We need not and are not permitted to proceed further.
Even if there were some ambiguity in Section 8(c) as
to this issue, the Supreme Court has further instructed us
that ambiguous language should not be construed in a
manner inconsistent with the fundamental principles em-
bodied in a statute. “Where rights are infringed, where
fundamental principles are overthrown, where the gen-
eral system of the laws is departed from, the legislative
intention must be expressed with irresistible clearness to
induce a court of justice to suppose a design to effect
such objects.” U. S. v. Fisher, 6 U.S. 358, 390 (1805).
Permitting employers in the period prior to a representa-
tion election to force employees on threat of discipline or
discharge to listen to speech aimed at influencing their
vote is inconsistent with the “fundamental principles”
embodied in the Act. Congress has certainly not ex-
pressed an intention to permit such coercion with “irre-
sistible clearness” in Section 8(c).
Moreover, even if we could proceed to examine the
legislative history of Section 8(c), it does not suggest that
Congress intended to permit employers to force employ-
ees to attend campaign meeting on threat of discipline.
The clear purpose of Section 8(c) was “to insure both to
employers and labor organizations full freedom to ex-
press their views to employees on labor matters.” S.
Rep. No. 105, 80th Cong., 1st Sess. 23 (1947). But hold-
ing that employers engage in objectionable conduct by
compelling employees to listen to those views under
threat of discipline would in no way interfere with em-
ployer free speech as we now understand the concept or
as it was generally understood in 1947.
The Supreme Court has found that Section 8(c) codi-
fied the First Amendment. Allentown Mack Sales & Ser-
vice v. NLRB, 522 U.S. 359, 386 (1998). As the Court
explained in NLRB v. Gissel Packing Co., 395 U.S. 575,
617 (1969), “[Section] 8(c) (29 U. S. C. § 158 (c)) mere-
ly implements the First Amendment.” This is instructive
because the First Amendment permits regulation of
speech designed to protect captive audiences. See, e.g.,
Hill v. Colorado, 530 U.S. 703, 734 (2000) (“The regula-
tions in this case, however, only apply if the pedestrian
does not consent to the approach. Private citizens have
always retained the power to decide for themselves what
they wish to read, and within limits, what oral messages
they want to consider.”) (footnote omitted); Frisby v.
Schultz, 487 U.S. 474, 487 (1988) (“The First Amend-
ment permits the government to prohibit offensive
speech as intrusive when the ‘captive’ audience cannot
avoid the objectionable speech.”); Lehman v. Shaker
Heights, 418 U.S. 298, 307 (1974) (Douglas, J., concur-
ring) (“While [a person] clearly has a right to express his
views to those who wish to listen, he has no right to force
his message upon an audience incapable of declining to
receive it.”); Rowan v. United States Post Office Dept.,
397 U.S. 728, 737 (1970) (“[n]othing in the Constitution
2 SISTERS FOOD GROUP 1827
compels us to listen to or view any unwanted communi-
cation, whatever its merit”). Federal courts have recog-
nized that “[f]ew audiences are more captive than the
average worker.” Robinson v. Jacksonville Shipyards,
Inc., 760 F.Supp. 1486, 1535 (M.D. Fla. 1991) (citation
omitted). And this is certainly true when those workers
are required by their employer to attend a campaign
meeting on pain of discipline or discharge.3 It thus fol-
lows from the First Amendment captive audience juris-
prudence that Section 8(c) does not insulate the express
or implied threat inherent in requiring employees to at-
tend meetings in order to listen to campaign communica-
tions.
The source of the Board’s contrary position on this is-
sue is Babcock & Wilcox Co., 77 NLRB 577 (1948). In
that case, the Board held that Section 8(c) prevented it
from concluding that an employer committed an unfair
labor practice by conducting a mandatory meeting. In
full, the Board reasoned:

With respect to the “compulsory audience” aspect of
the speeches, the Trial Examiner concluded from all the
evidence that the notices of the meetings as well as the
oral instructions given to the employees concerning
these meetings removed the element of choice from the
employees and, in effect, compelled them to attend in
violation of the Act. In reaching this conclusion, the
Trial Examiner relied upon the “compulsory audience”
doctrine enunciated in Matter of Clark Bros. Co., Inc.
However, the language of Section 8 (c) of the amended
Act, and its legislative history, make it clear that the
doctrine of the Clark Bros. case no longer exists as a
basis for finding unfair labor practices in circumstances
such as this record discloses. Even assuming, there-
fore, without deciding, that the respondent required its
employees to attend and listen to the speeches, we con-
clude that it did not thereby violate the Act.

Id. at 578 (footnote omitted). Notably, the Board did not in
any way analyze “the language of Section 8(c)” or explain
how the employer could “require its employees to attend or
listen to the speeches” without an explicit or implicit threat
of adverse consequences if they did not comply with the
requirement.

3 Our sister agency, the Equal Employment Opportunity Commis-
sion, has construed the prohibition of discrimination on grounds of
religion in Title VII of the 1964 Civil Right Act to mean that
“[e]mployees cannot be forced to participate—or not participate—in a
religious activity as a condition of employment.” See
http://www.eeoc.gov/types/religion.html. Surely this means that em-
ployers cannot require employees to attend a meeting where they are
urged to practice one religion rather than another or no religion at all.
Nor did the Babcock & Wilcox Board point to any spe-
cific portion of the legislative history to support its con-
clusion. The Senate Report on what became the Taft-
Hartley amendments to the Act, which contained what
became Section 8(c), does express disapproval of the
Board’s pre-Taft-Hartley decision in Clark Bros. Co., 70
NLRB 802 (1946), enfd. 163 F.2d 373 (2d Cir. 1947),
but the Report in no way suggests that the Committee
intended the amendments to permit employers to require
employees to attend campaign meetings on threat of dis-
cipline. The Report states:

The Supreme Court in Thomas v. Collins (323 U.S.
516) held, contrary to some earlier decisions of the La-
bor Board, that the Constitution guarantees freedom of
speech on either side in labor controversies and ap-
proved the doctrine of the American Tube Bending case
(134 F.(2d) 993). The Board has placed a limited con-
struction upon these decisions by holding such speech-
es by employers to be coercive . . . if the speech was
made in the plant on working time (Clark Brothers, 70
N.L.R.B. 60). The committee believes these decisions
to be too restrictive and, in this section, provides that if,
under all the circumstances, there is neither an express
or implied threat of reprisal, force, or offer of benefit,
the Board shall not predicate any finding of unfair labor
practice upon the statements.

S. Rep. No. 105, 80th Cong., 1st Sess. 23 (1947). Thus, the
Report makes clear that while Section 8(c) guarantees
“freedom of speech,” it also does not insulate express or
implied threats. Moreover, the specific element of Clark
Bros. disapproved of in the Report as “too restrictive” is the
holding that employers’ speech is unlawful “if the speech
was made in the plant on working time.” Id. Requiring
attendance on threat of discipline is, of course, a critical step
beyond holding a meeting in the plant on working time. As
if to underscore that distinction, immediately after criticiz-
ing what it characterized as the Clark Bros. holding that
speech was unlawful simply because it took place “in the
plant on working time,” the Senate Report makes clear that
Section 8(c) insulates speech only if “under all the circum-
stances, there is neither an express or implied threat of re-
prisal.” There is thus nothing in the legislative history sup-
porting the Board’s holding in Babcock & Wilcox.
Subsequent Board holdings on this issue provide no
further rationale, but typically simply rely on Babcock &
Wilcox. In Fontaine Converting Works, 77 NLRB 1386,
1387 (1948), for example, the Board merely stated,
“Nor, on this record and for the reason stated in Matter of
The Babcock & Wilcox Co., do we find that this Re-
spondent violated the amended Act by compelling its
employees to attend and listen to speeches on company
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1828
time and property.” (Footnote omitted.) Similarly, in
Litton Systems, Inc., 173 NLRB 1024, 1031 (1968), the
Board summarily affirmed an administrative law judge’s
dismissal of a charge based on the discharge of an em-
ployee who left a mandatory campaign meeting. The
judge concluded:

I do not agree with the General Counsel's premise that
Provost's above-described conduct at the June 6 meet-
ing constituted a concerted activity protected by the
Act. An employee has no statutorily protected right to
leave a meeting which the employees were required by
management to attend on company time and property
to listen to management's noncoercive antiunion speech
designed to influence the outcome of a union election.
For if he had such a statutory right, then management's
compulsory requirement to attend such a meeting
would interfere with and restrain him in the exercise of
that right in violation of Section 8 (a)(1) of the Act.
Yet, the Board has held as long ago as 1948, that such a
finding is barred by "the language of Section 8(c) of the
amended Act and its legislative history." Thus, the
Board concluded that "even assuming therefore, with-
out deciding, that the respondent required its employees
to attend and listen to the speeches, we conclude that it
did not thereby violate the Act." Babcock & Wilcox
Co., 77 NLRB 577, 578.

Id. at 1030–1031 (footnote omitted). See also F.W. Wool-
worth Co., 251 NLRB 1111, 1113 (1980), enfd. 655 F.2d
151 (8th Cir. 1981), cert. denied 455 U.S. 989 (1982)
(summarily affirming judge’s conclusion: “Under the prec-
edent, Respondent's attempt to further its antiunion cam-
paign by conducting a captive-audience meeting and by
declaring that no questions would be answered in the course
thereof, did not amount to an unfair labor practice.”)
In S & S Corrugated Paper Mach. Co., 89 NLRB 1363
(1950), the Board extended the holding in Babcock to
representation cases but without any attention to the ac-
tual language in Section 8(c) or its own holding in Gen-
eral Shoe, 77 NLRB at 126. Again, in total, the Board
reasoned:

On the facts revealed by the Regional Director's report
in this case, the “captive audience” aspect of the Em-
ployer's speeches, otherwise protected by Section 8(c)
of the amended Act, cannot form the basis for a finding
that the Employer, by denying the Petitioner an equal
opportunity to use its facilities and time, has interfered
with the employees’ free choice of a bargaining repre-
sentative. The Petitioner’s objections to the conduct of
the election on this ground are therefore overruled.

Id. at 1363. In other words, one searches Board precedent
in vain for a colorable rationale for the current rule despite
the rule’s critical importance in representation elections.
In sum, employers have a right to speak freely on the
question of whether their employees should be represent-
ed for purposes of collective bargaining, but “[w]hen to
this persuasion other things are added which bring about
coercion, or give it that character, the limit of the right
has been passed.” Thomas v. Collins, 323 U.S. 516,
537–538 (1945). An express or implied threat of disci-
pline for not listening to the employer’s speech indisput-
ably adds to the speech the element of coercion that takes
it outside the protection of both the First Amendment and
Section 8(c) and permits it to serve as grounds for over-
turning the results of an election. I would restore at least
some of the luster to the Board’s “crown” the Board-
supervised representation election – by holding objec-
tionable such obvious and overtly coercive yet wide-
spread conduct.4

MEMBER HAYES, dissenting in part.
I disagree with my colleagues’ affirmation of the
judge’s findings that certain of the Respondent’s rules or
policies violate Section 8(a)(1). On a matter of far great-
er import, I also disagree with their unwarranted, unprec-
edented, and restrictive definition of guidelines govern-
ing a regional director’s discretion to decide where to
hold a Board election.
1. The Respondent maintained work rules separately
addressing the “[u]nauthorized soliciting of contributions
on Company premises” and “inability or unwillingness to
work harmoniously with other employees.” Employees
would not reasonably view either of these rules to pro-
hibit Section 7 activity. The former rule is specifically
limited to prohibiting solicitation of “contributions.” As
limited, it does not explicitly restrict Section 7 solicita-
tion activity, and there is no invalidity in its implicity
prohibition of unprotected solicitation of contributions
during nonworking time. Further, there is no ambiguity
in the rule’s wording which employees would not rea-
sonably construe as prohibiting protected activity on its
fact. In sum, by interpreting this rule to prohibit Section
7 solicitation activity, my colleagues impermissibly
“pars[e] workplace rules too closely in a search for am-
biguity that could limit protected activity.” Adtranz ABB
Daimler-Benz Transp., N.A., Inc. v. NLRB, 253 F.3d 19,
28 (D.C. Cir. 1991) (noting that the Board itself has cau-

4 I would so hold whether it is a single employee or a group of em-
ployees who are compelled to listen because I do not believe that the
“mass psychology” referenced by the Board in Peerless, 107 NLRB at
429, and used to distinguish communications to individuals and smaller
groups, see, e.g., Electro-Wire, 242 NLRB at 960, has any foundation
in reliable social science data or other evidence.
2 SISTERS FOOD GROUP 1829
tioned against such parsing in finding that the employer’s
no-solicitation rule was lawful).
As for the latter rule, the Board has previously held
that such restrictions are lawful. See Palms Hotel & Ca-
sino, 344 NLRB 1363, 1367–1368 (2005) (lawful rule
prohibited conduct that “is or has the effect of being inju-
rious, offensive, threatening, intimidating, coercing, or
interfering with” employees or customers); Lutheran
Heritage, 343 NLRB 646, at 647–649 (lawful rule pro-
hibited “harassment,” “verbal, mental, and physical
abuse,” and “abusive and profane language”). Such rules
reflect the lawful expectation that employees “comport
themselves with general notions of civility and decorum
in the workplace,” Palms Hotel, at 1368, inasmuch as
both employers and employees have a substantial interest
in promoting a workplace that is “civil and decent.” Lu-
theran Heritage, at 649. The rule requiring employees to
work “harmoniously” goes no further than this, and the
majority’s finding that it is unlawful cannot be reconciled
with the holdings in these cases.
The Respondent also had a policy requiring arbitration
of employment-related disputes. In my view, employees
would not reasonably construe this policy to prohibit
filing charges with the Board because it is explicitly lim-
ited to claims “that may be lawfully [] resolve[d] by arbi-
tration.” Thus, the Respondent’s arbitration policy is
distinguishable from that found unlawful in U-Haul Co.
of California, supra; Kinder-Care Learning Centers, 299
NLRB 1171, 1171 (1990); and Great Lakes Chemical
Corp., 298 NLRB 615, 621–622 (1990), enfd. 967 F.2d
624 (D.C. Cir. 1992). None of those unlawful policies
were explicitly limited to claims that could be lawfully
resolved by arbitration. Further, I note that arbitration
agreements are common and necessary in today’s em-
ployment landscape, and that Federal policy favors the
enforcement of arbitration agreements, especially in the
employment context. See Circuit City Stores. v. Adams,
532 U.S. 105, 122–123 (2001). In these circumstances, I
does not subscribe to extant Board law insofar as that
precedent can be read to invalidate standard arbitration
agreements solely because they do not contain a specific
express exclusion for the filing of charges with the
Board.
2. Let me simplify my colleagues’ discussion of a re-
gional director’s “discretion” when ruling on the Peti-
tioner’s request to conduct the rerun election offsite.
First, whenever a petitioning union makes such a request,
“[t]his alone is a relevant consideration.” Second, when-
ever there is the potential that an employer will exercise
its legal right to campaign against unionization on or
before election day, particularly to exclude non-
employee union agents from its premises, this lawful
conduct weighs against conducting an election on its
premises. The rest of my colleagues’ guidance, primarily
discussing the Respondent’s unlawful conduct, is win-
dow dressing. The longstanding Board preference for
holding onsite any representation election—not just rerun
elections—has now been eliminated by the vote of two
Board Members responding to a single paragraph argu-
ment by the Petitioner’s counsel, without any apparent
concern that such a sweeping change should be under-
taken by a “minority” majority and absent prior notice or
invitation for broader discussion of its ramifications.1 If
the foregoing factors are present, a regional director’s
actual discretion is limited to identifying a suitable
offsite location for the election. That is all.
It is certainly true that the Board has not gone to great
lengths to explain why onsite elections have traditionally
been preferred. My colleagues refer to the “obvious”
factors of “ease of voting and cost.” These factors are
not insignificant, particularly the former, which relates to
the core purpose of insuring maximum employee partici-
pation in the democratic process.2 Tellingly, my col-
leagues do not refer to empirical data on employee par-
ticipation rates in offsite elections.3 In their opinion, a
regional director’s consideration of the ease of voting
and cost is limited to the assessment of whether a par-
ticular off-premises site is suitable. For that matter, it is
unclear what diminished level of participation or in-
creased level of expense would outweigh the factors of a
Petitioner’s request and an Employer’s activity in lawful
opposition to collective-bargaining representation, and
thereby permit the regional director to reject a particular
offsite location and to direct that an election be held on
the Employer’s premises.
My colleagues’ countervailing concern is that an em-
ployer has what they perceive to be such an unfair ad-
vantage in access to employees during the election cam-

1 My colleagues do not dispute that they have articulated guidelines
applicable to any election where the voting location is at issue.
2 There are other factors that seemingly support a preference for
holding onsite elections. One entails consideration of the possible
dispruption to an employer’s business operations in order to accomo-
date employees going to vote. Another factor is the symbolic import to
employees when their employer accedes to the presence of Board
agents and the conducting of a Board election on its premises even if
that employer adamantly opposes unionization.
3 There is, for comparison, an empirical study of mail ballot election
statistics indicating that making voting more inconvenient depresses
voter turnout. See Sara Slinn and William A. Hebert, “Some Think of
the Future: Internet, Electronic and Telephonic Labor Representation
Election” at pp. 11 and 13, available at:
http://works.bepress.com/william_herbert/21, showing Board data to
the effect that mail ballot elections have around a 15—20 percent lower
participation rate than manual elections. It seems at least plausible that
requring employees to vote at places other than where they work could
have a comparable effect.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1830
paign that it should at least be denied the opportunity on
election day to deliver what might be the “last, most tell-
ing word” to employees before they enter the voting ar-
ea.4 If that last word is to be uttered offsite in opposition
to collective-bargaining representation, it will now have
to come from an employee or some non-agent of the em-
ployer. The presence of any officials of the employer
who appear at the offsite location for purposes other than
attending the preelection conference will almost certainly
be challenged as unlawful surveillance. This is not true,
of course, for union agents who, unlike the employer,
have had general access to employees at their homes and
elsewhere offsite throughout the organizational cam-
paign. These agents may populate the immediate vicini-
ty outside of the offsite voting area before and during
polling hours in order to assure that the last word com-
municated to employees favors their postion.
To some, myself included, it may seem surpassingly
strange to premise a change in the requirements for re-
solving disputes about where to hold a Board election on
the prospect that an employer might exercise its legal
right to communicate with employees on a question con-
cerning representation. By now, however, we should be
accustomed to my colleagues’ concern that this should
happen. Time and time again, they have demonstrated a
willingness, if not open zeal, for limiting employer
communications and, in the process, for diminishing the
impact of the Supreme Court’s Lechmere decision.5 In
Independence Residences, 355 NLRB No. 153 (2010),
the majority perceived no problem with conducting
Board elections under the cloud of an obviously
preempted New York State law limiting the ability of
certain employers to engage in legal activity in opposi-
tion to an organizational campaign. In rulemaking, my
colleagues have effectively limited both the time for pre-
election employer campaigns as well as the preelection
opportunity to litigate and resolve eligibility issues af-
fecting a substantial number of potential voters.6 In New
York, New York Hotel & Casino, 356 NLRB No. 119
(2011), and subsequent related cases,7 my colleagues
substantially curtail an employer’s claimed onsite com-
munication advantage by requiring a property-owning
employer to give to an onsite contractor’s employees
essentially the same onsite access to engage in organiza-

4 My colleagues contend that they are concerned only with the ad-
vantages available to an employer during election hours if voting takes
place on its premises. I do not view their rationale as so limited.
5 Lechmere v. NLRB, 502 U.S. 527 (1992) (reaffirming precedent
holding that, except in limited circumstances, employers may bar
nonemployee union organizers from their property).
6 [Include Federal Register cite]
7 Simon De Bartolo Group, 357 NLRB No. ___ (2011), and Reliant
Energy, 357 NLRB No. ___ (2011).
tional activity as is enjoyed by the property owner’s own
employees.
Unlike my colleagues, I would leave to Congress to
determine what permissible limitations, if any, may be
constitutionally imposed to redress the claimed ad-
vantage held by employers in Board election campaigns
because they can communicate with employees at their
workplace.8 Absent good reason to depart from Board
practice about where to hold representation elections, I
would adhere to the status quo preferring onsite elections
and leaving to regional directors the broad discretion to
depart from that preference in rerun elections under the
general factors cited in Austal USA.9

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain a work rule prohibiting unau-
thorized soliciting of contributions on company premis-
es.
WE WILL NOT maintain a work rule prohibiting distri-
bution of printed matter on company premises without
permission.
WE WILL NOT maintain a work rule subjecting employ-
ees to discipline for the “inability or unwillingness to
work harmoniously with other employees.”
WE WILL NOT maintain a policy requiring employees to
agree to submit all employment disputes and claims to
binding arbitration as a condition of employment.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the United Food and

8 Member Becker would go further still and prohibit employers from
making captive audience election campaign speeches during the entire
critical preelection period, rather than just in the 24 hours preceding the
election. I would not do so. Absent three affirmative votes to overrule
this precedent, there is no need to discuss the details of Member Beck-
er’s dissenting view.
9 Austal USA, LLC, 357 NLRB No. 40 (2011).
2 SISTERS FOOD GROUP 1831
Commercial Workers International Union, Local 1167 or
any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the work rules and policy set forth
above.
WE WILL furnish all of you with inserts for the current
edition of the Rules of Conduct and employee handbook
that (1) advise that the unlawful provisions, above, have
been rescinded, or (2) provide the language of lawful
provisions; or publish and distribute to all current em-
ployees a revised Rules of Conduct and employee hand-
book that (1) do not contain the unlawful provisions, or
(2) provides the language of lawful provisions.
WE WILL, within 14 days from the date of the Board’s
Order, offer Xonia Trespalacios full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Xonia Trespalacios whole for any loss
of earnings and other benefits resulting from her dis-
charge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Xonia Trespalacios, and WE WILL, within
3 days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.
2 SISTERS FOOD GROUP, INC.

Irma Hernandez and Jean Libby, Attys., for the General Coun-
sel.
David Rosenfeld and Ana M. Gallegos, Attys. (Weinberg Roger
& Rosenfeld, PC), of Alameda, and Los Angeles, Califor-
nia, for the Charging Party.
Alan Berkowitz and Cathy Lee, Attys. (Bingham McCutchen
LLP), of San Francisco, and Los Angeles, California, for
the Respondent.
DECISION
I. STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. Pursuant to un-
fair labor practice charges and timely objections to a represen-
tation election of July 17, 2009,1 filed by United Food and
Commercial Workers International Union, Local 1167 (the
Union), the Regional Director of Region 21 of the National
Labor Relations Board (Region 21 and the Board, respectively)
issued a Report on Challenged Ballots and Objections in Case
21–RC–021137 and order consolidating Cases 21–CA–038915
and 21–CA–38932 and notice of hearing (the report and the

1 All dates herein are 2009, unless otherwise specified.
complaint, respectively) on December 14, 2009.2 The com-
plaint alleges that 2 Sisters Food Group, Inc. (the Respondent)
violated Section 8(a)(3) and (1) of the National Labor Relations
Act (the Act).3 This consolidated case was tried in Riverside,
California on March 1–3, 17–19, and in Los Angeles, Califor-
nia, on March 29, 2010.
II. ISSUES
1. Did the Respondent violate Section 8(a)(1) of the Act by
promulgating and maintaining overbroad rules, including solici-
tation and distribution rules and a rule waiving employees’
right to file charges with the Board, all of which has interfered
with, restrained, and coerced employees in the exercise of their
Section 7 rights?
2. Did the Respondent violate Section 8(a)(3) and (1) of the
Act by terminating employee Xonia Trespalacios on July 13,
2009?
3. Did the Respondent engage in conduct that affected the
results of the representation election held July 17, so as to re-
quire the setting aside of the election?
III. JURISDICTION
At all material times, the Respondent, a Delaware corpora-
tion, with a facility located in Riverside, California (the facili-
ty), has been engaged in the nonretail business of processing
and supplying food. During the 12-month period ending Sep-
tember 30, a representative period, the Respondent, in conduct-
ing its operations described above in paragraph 2(a), purchased
and received at the facility goods valued in excess of $50,000
directly from points outside the State of California. At all mate-
rial times, the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
IV. PROCEDURAL BACKGROUND
The Union commenced an organizational campaign among the
Respondent’s employees in 2008. Thereafter, the following
sequence of events occurred:

 August 26, 2008 and October 24, 2008, respective-
ly: the Union filed unfair labor practices against the
Respondent in Cases 21–CA–38480 and 21–CA–
38563 (the 2008 ULP charges).
 February 26: the Region authorized the issuance of
a consolidated complaint in the 2008 ULP charges,
alleging violations of Sections 8(a)(1) and (3) of the

2 At the hearing the General Counsel amended the Complaint to in-
clude an allegation that Fernando Rivera and Luz Ceballos were, at all
material times, labor relations consultants to the Respondent and agents
within the meaning of Sec. 2(13) of the Act, which was not disputed.
At the hearing, the Union withdrew its challenges to the ballots of
Sotelo Avila, Angelica Baca, and Roxanne Harris, whereafter challeng-
es were no longer sufficient to affect the results of the election.
3 In representation cases, an employer is traditionally referred to as
“Employer” and the union as “Petitioner.” For convenience, 2 Sisters
Food Group, Inc. will be referred to throughout as “the Respondent,”
and United Food and Commercial Workers International Union, Local
1167 as “the Union.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1832
Act, hearing for which was ultimately scheduled
for June 10.
 May 28: the Petitioner filed a representation peti-
tion with the Region in Case 21–RC–21137, which
was blocked pending disposition of the 2008 ULP
charges.
 June 4: the Petitioner executed a request to proceed
with the representation election, notwithstanding
the blocking charges and the pending unfair labor
practice hearing in the 2008 ULP charges.
 June 10: hearing on the 2008 ULP charges com-
menced before an administrative law judge, contin-
uing on four intermittent days until July 11.
 June 17: the Regional Director approved a Stipulat-
ed Election Agreement, setting the election in Case
21–RC–21137 for July 17 in an appropriate unit of
the Respondent’s employees as follows:

All full-time and regular part-time production employees,
maintenance employees, technical/quality assurance employ-
ees, sanitation employees, shipping and receiving employees
and plant clerical employees employed by the Employer at its
[Riverside] facility . . . excluding all other employees, tempo-
rary employees, office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act.

 July 15: the Union filed an unfair labor
practice charge against the Respondent in
Case 21-CA-38915.
 July 17: the Region conducted the represen-
tation election in Case 21–RC–21137. The
tally of ballots showed that of approximate-
ly 186 eligible voters, 66 cast ballots for,
and 87 against, the Petitioner.
 July 29: the Union filed an unfair labor
practice charge against the Respondent in
Case 21–CA–38932.
 September 28: an administrative law judge
approved the parties’ settlement agreement
of the 2008 ULP charges, on which com-
pliance thereafter closed.4
 October 28: Consolidated complaint in
Cases 21–CA–38915 and 21–CA–38932 is-
sued.
 December 14: the Report and the Com-
plaint issued.
V. UNFAIR LABOR PRACTICE CASE
Unless otherwise explained, findings of fact herein are based
on party admissions, stipulations, and uncontroverted testimony
regarding events occurring during the period of time relevant to
these proceedings. On the entire record, including my observa-
tion of the demeanor of the witnesses, and after considering the

4 Counsel for the Union requested that the hearing tran-
scripts/exhibits and settlement agreement from this hearing be received
as evidence of animus and to support certain objections to the election,
which request was denied. A CD of the materials is held in the file as a
rejected exhibit.
briefs filed by the General Counsel, the Union, and the Re-
spondent, I find the following events occurred in the circum-
stances described below during the period relevant to these
proceedings:
A. Relevant Company Work Rules and Policies
The Respondent operates the following production depart-
ments at its facility: shipping and receiving, cooked and bread-
ed processing, red meat, poultry, and home meal replacement
(HMR). At all relevant times the following individuals in the
following positions were supervisors at the facility within the
meaning of Section 2(11) of the Act:

Tracey Reilly (Ms. Reilly) Vice President of Operations
Veronica Vega (Ms. Vega) Poultry Department Supervisor

Fernando Rivera (Rivera) and Luz Ceballos (Ceballos) were
labor relations consultants to the Respondent and agents within
the meaning of Section 2(13) of the Act. Florinda Avila was a
lead employee in the poultry production department.
The Respondent’s written rules of conduct contained the fol-
lowing relevant rules, violation of which subjected employees
to discipline ranging, variously, from written warning through
discharge:

Rule 11: Leaving department or the plant during a
working shift without a supervisor’s permission.
Rule 12: Stopping work before shift ends or taking un-
authorized breaks.
Rule 28: Unauthorized soliciting of contributions on
[Respondent’s] premises.
Rule 33: Distributing printed matter on [Respondent’s]
premises without permission.
Rule 34: Fighting or attempting to provoke a fight on
company property.
Rule 35: Inability or unwillingness to work harmoni-
ously with other employees.5

The Arbitration of Disputes provision in the Respondent’s writ-
ten offer of employment, reads:

Any dispute arising between you and 2 Sisters Food Group
Inc, will be resolved by arbitration in accordance with 2 Sis-
ters Food Group Inc, Arbitration Policy, which is included in
the Employee Handbook that you will receive. By accepting
this offer of employment, you agree to waive your right to a
court or jury trial, and you acknowledge that all claims that
may be lawfully [resolved] by arbitration will be decided by a
neutral arbitrator whose decision will be final and may not be
appealed.

The Respondent required prospective employees to
sign the following arbitration agreement:

I agree to submit to binding arbitration all disputes and claims
arising out of this application and, in the event that I am hired,

5 First violation of rules 34 and 35 carries the potential discipline of
“Written Warning up to Discharge,” which presumably includes dis-
charge as a discretional penalty. As noted by Human Resource Manag-
er Angie Sandoval (Ms. Sandoval), the Respondent could impose a
written warning, a suspension, or discharge for a first violation of rule
34.
2 SISTERS FOOD GROUP 1833
all disputes and claims arising out of my employment. This
agreement includes every type of dispute that may be lawfully
submitted to arbitration, including claims of wrongful dis-
charge, discrimination, harassment, or any injury to my phys-
ical, mental or economic interests. This means that a neutral
arbitrator, rather than a court or jury, will decide the dispute.
As such, I am waiving my right to a court or jury trial. I agree
that any arbitration will be conducted in accordance with 2
Sisters Food Group employee handbooks, or the rules of the
American Arbitration Association.

With regard to discipline of employee misconduct, the Re-
spondent, in both policy and practice, was committed to inter-
viewing employees accused of misconduct and obtaining an
employee’s explanation prior to imposition of discipline. In
pertinent part, the Respondent’s Progressive Discipline Policy
stated:

Prior to imposing any disciplinary action, the Supervi-
sor must determine if there are sufficient reasons to initiate
the disciplinary process, and if so, at what level of disci-
pline.
1. Adequacy of notice. The Supervisor must first de-
termine whether the employee was given fair notice of the
consequences of the misconduct. . . . Supervisors should
not assume that employees learn rules by word of mouth.
Supervisors should consider whether communication of
the rules was reinforced in policy manuals or employee
handbooks.
2. Investigate facts. Supervisors are responsible for
investigating each incident as soon as possible. They
should obtain all facts, interview available witnesses, and
review the information fairly and impartially before initiat-
ing disciplinary action. Employees should always be giv-
en an opportunity to explain their actions.
3. Classify disciplinary violation. Supervisors must
determine if a particular act is a major or minor problem,
an isolated incident, or a recurring problem.
B. Discharge of Xonia Trespalacios
Xonia Trespalacios (Trespalacios) had two periods of em-
ployment with the Respondent: October 10 to December 7,
2007, and April 8 until July 13, 2008, when she was dis-
charged. At the time of her discharge, Ms. Trespalacios
worked in the day-shift poultry department. Ms. Trespalacios
was known to many coworkers to have an outgoing, demonstra-
tive personality, given to touching people when talking to them.
In May, Ms. Trespalacios became involved in the union
campaign at the facility, joining the union organizing commit-
tee, participating in committee meetings, and distributing pro-
union flyers at the Riverside facility. From May through July
13, Ms. Trespalacios distributed as many as two prounion flyers
per week to day-shift coworkers. Ms. Reilly saw Ms. Trespala-
cios passing out union leaflets. On one occasion, Ms. Trespala-
cios, holding a flyer in one hand, placed her other hand on Ms.
Reilly’s shoulder and walked a short distance with her.
Ms. Trespalacios was one of a group of the Respondent’s em-
ployees pictured on two of the Union’s election campaign fly-
ers that were widely distributed in the plant. On July 4,
Ms. Trespalacios was present when a coworker asked Mr. Rive-
ra about compensation for the holiday. When Ms. Trespalacios
disputed Mr. Rivera’s computations, Mr. Rivera said something
to the effect that Ms. Trespalacios was always with the Union.
On Thursday, July 9, during a day-shift lunchbreak in the
dining area of the Riverside facility, Ms. Trespalacios interact-
ed with employee Yolanda Flores (Ms. Flores) in the presence
of employees Sonia Vicente (Ms. Vicente) and Martha Castillo
(Ms. Castillo) (the Trespalacios/Flores interaction). A security
camera in the dining area filmed the interaction, the footage of
which the Respondent later copied to a CD (the Trespala-
cios/Flores CD), which was received into evidence at the hear-
ing. The Trespalacios/Flores CD lacks high-quality clarity and
definition and has no audio component. Nonetheless, the CD
shows the following:

Ms. Trespalacios stops by a table at the far end of the
dining area where Ms. Vicente, Ms. Castillo, and Ms. Flo-
res are seated. While standing next to the seated Ms. Flo-
res, Ms. Trespalacios touches her on the shoulder multiple
times with patting motions and then delivers four firmer
touches or nudges to Ms. Flores’ shoulder that appear to
jostle Ms. Flores. Ms. Trespalacios turns away from the
table momentarily but soon reappears and momentarily
addresses Ms. Flores while gesturing animatedly before
folding her arms across her chest and inclining her body
toward Ms. Flores with her head bent toward Ms. Flores’
head. Although it is not entirely clear, Ms. Trespalacios’
folded arms appear to touch or bump Ms. Flores’ shoulder
and to jog her slightly. The reactions of Ms. Vicente, Ms.
Castillo, and Ms. Flores, if any, cannot be ascertained.

After she finished her lunch break, Ms. Flores told lead em-
ployee, Ms. Avila, that she had had a problem with Ms. Tres-
palacios. Ms. Avila reported the matter to Ms. Vega who took
Ms. Flores to her office. Ms. Flores told Ms. Vega about the
Trespalacios/Flores interaction, stating that Ms. Vicente and
Ms. Castillo had also been present.
On the same day, July 9, Ms. Vega told Ms. Reilly that Ms.
Trespalacios had pushed and abused Ms. Flores. . . .Ms. Reilly
told Ms. Vega to obtain written statements from witnesses to
the incident. On Friday, July 10, Ms. Vega provided Ms. Reilly
with written statements from herself, Ms. Avila, Ms. Flores,
and Ms. Vicente, translating for her those written in Spanish.
Ms. Flores’ statement, in pertinent part read:

Yesterday, on Thursday . . . during my lunch hour, I asked
Xonia why she was upset with me, if it was because of the
Union. And she told me that she didn’t care, then she told me
that she was gonna kick my ass out and throw me away, and
she pushed me. And I am very upset for what she told me. I
also told Xonia that it was my decision to vote in favor or
against the Union. All I want is to work comfortably and to
be left alone.

Ms. Vicente provided two statements6 of the incident that read
in pertinent part:

6 It is not clear how it happened that Ms. Vicente came to give two
statements.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1834
Xonia approached Yolanda and Xonia touched her
shoulder. And Yolanda said, she told her, “You’re angry
because I’m not in your Union.” And Xonia said, “Aside
from that, I am the same person here.”
Xonia approached Yolanda touching her on her shoul-
der. And Yolanda told her, “Are you angry because I
don’t support your Union?” And Xonia told her, “I am
another person here. The Union is something else very
apart from this.”

Ms. Avila’s statement, in pertinent part read:

Yolanda Flores coming from the lunch room and told
me that a lady from poultry had told her a bad word and
had pushed her. I told her that it needed to be reported to
the supervisor because we cannot say bad words to people.
And I told her that [I] was going to communicate it to the
supervisor, and I told Veronica [Vega].

Ms. Vega’s statement, in pertinent part read:

Yesterday 7/9/09 @ 2:09 p.m. Flo Sotelo [Florinda
Avila] and Yolanda Flores came to me in Sealing, telling
me that at lunch time, Xonia Trespalacios pushed her and
told her that when the Union comes in, she will be fired
with a kick up her __s…Yolanda tells me she feels really
uncomfortable with the things Xonia Trespalacios told her.

After reviewing the statements, Ms. Reilly did not direct an-
yone to interview and/or obtain a statement from either Ms.
Trespalacios or Ms. Castillo, the other worker present during
the Trespalacios/Flores interaction, and she did not, herself,
interview any of the four witnesses to the interaction. Ms. Reil-
ly acknowledged that she had not followed the company disci-
pline policy in three particulars: (1) she did not obtain state-
ments from all available witnesses to Ms. Trespalacios’ alleged
misconduct; (2) she did not obtain all facts relevant to
Ms. Trespalacios’ discipline; and (3) she did not give Ms. Tres-
palacios an opportunity to explain her actions. Ms. Reilly fur-
ther acknowledged that of the two eyewitnesses who gave
statements, only Ms. Flores claimed that Ms. Trespalacios had
threatened her. Ms. Reilly agreed that Ms. Vicente’s statement
did not corroborate that a threat or an assault had occurred.7

7 Ms. Trespalacios testified about her interaction with Ms. Flores as
follows: while Ms. Trespalacios was passing through the dining area,
Ms. Vicente called her over to a breakroom table where Ms. Vicente sat
with Ms. Flores and Ms. Castillo. Ms. Trespalacios spoke briefly to
Ms. Vincente about nonunion matters. As they talked, Ms. Flores said
to Ms. Trespalacios something to the effect that since Ms. Trespalacios
was with the Union, Ms. Trespalacios was no longer talking to her.
Ms. Trespalacios softly touched Ms. Flores’ arm, assuring her, “With
the Union or without, I continue to be the same.” Saying no more,
Ms. Trespalacios left. Ms. Trespalacios insisted that she touched Ms.
Flores only once and never bumped her. She denied telling Ms. Flores
the Union would have her kicked out or that she would lose her job
when the Union came in. Ms. Vicente, who also testified, denied that
Ms. Trespalacios had used any foul language or made any threats dur-
ing the interaction. Ms. Flores’ testimony, although more detailed than
her written account, was essentially consistent with her statement.
I recognize that Ms. Trespalacios’ version is not fully consistent
with the camera footage. However, since Ms. Trespalacios’ version of
the Trespalacios/Flores interaction was neither obtained nor considered
After reviewing the Vega/Flores/Vicente statements, Ms.
Reilly viewed the camera footage of the incident, i.e., the foot-
age contained in the Trespalacios/Flores CD, five to seven
times. On the afternoon of July 10, based on her review of the
statements and the camera footage, Ms. Reilly concluded that
Ms. Trespalacios had committed an extremely serious, even
violent, “assault” of Ms. Flores, and she decided to terminate
Ms. Trespalacios. To Ms. Reilly’s knowledge, it was the only
assault of one worker on another since the Union had filed its
petition for election.
On Saturday July 11, Ms. Reilly talked to labor consultant,
Carlos Restrepo, about a presentation she planned to make to
employees regarding the Trespalacios/Flores interaction, asking
him to prepare a script for it in English and Spanish. Her inten-
tion was to play for employees the Trespalacios/Flores CD and
to make it clear to them that employees could not carry on as
they had been because employees were “just becoming a bit hot
and heated, and [Ms. Reilly] wanted people to understand that
[she] wanted people to work together, not against each other
[because they] would be a better company if [they all] worked
together.”
On Monday, July 13, Ms. Trespalacios was called into the
training center to meet with Ms. Reilly and Helen Marquez, the
factory manager. With Ms. Marquez translating, Ms. Reilly
told Ms. Trespalacios that she was going to be dismissed be-
cause it had been reported to Ms. Reilly that Ms. Trespalacios
had broken a company rule by assaulting someone.
Ms. Trespalacios asked Ms. Reilly who the person was, but Ms.
Reilly refused to give her any information, saying, “The inter-
view is over. Can you please leave?” Ms. Trespalacios asked
Ms. Reilly if she were being fired because she was supporting
the Union, which Ms. Reilly denied.
On the same day, shortly after firing Ms. Trespalacios, Ms.
Reilly assembled about 80 employees into the dining area. Ms.
Reilly read to employees from the following script, as consult-
ant Ms. Ceballos, utilizing the same script, translated:

I called this meeting because I’m very concerned with some-
thing I’ve seen happening here lately as the union election
gets closer.

But before we talk about that let me say that this type of be-
havior has been going on since last year. In fact last year we
had to terminate another employee for threats of physical
harm against another employee who did not support the un-
ion.8

Although the union claims that these types of actions do not
occur, the truth is that they do and things are actually getting
worse, allow me to show you. Here is a video of what hap-
pened here last Thursday. After you see it, I’ll tell you more.

before Ms. Reilly decided to terminate her, the credibility of her ver-
sion is irrelevant.
8 The employee referred to was alleged as a discriminatee in the con-
solidated complaint issued pursuant to the 2008 ULP charges, which
allegations were outstanding on July 13 and were later settled on Sep-
tember 28.
2 SISTERS FOOD GROUP 1835
Ms. Reilly played the Trespalacios/Avila CD for the employ-
ees, projecting the footage on the dining area wall, and thereaf-
ter read aloud the following:

The video clip is of an employee threatening, intimidating and
physically assaulting another employee who used to be her
friend because she changed her mind and decided to vote
against the union.

This is one example of the mistreatment some employees
have shown their coworkers who disagree with them on the
union question.

I’m here to tell you that I won’t tolerate that kind of behavior
here in our plant.9

Ms. Reilly had never before shown any video of employee
misconduct to assembled employees and had never before told
assembled employees of another employee’s termination.
C. Discussion of Alleged Unfair Labor Practices
1. Legal principles
Section 7 of the Act provides that employees have the
right to engage in union activities. Section 8(a)(1) of the Act
provides: “It shall be an unfair labor practice for an employ-
er to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7.” Section
8(a)(3) of the Act provides that it shall be an unfair labor
practice for an employer to discriminate in regard to hire or
tenure of employment or any term or condition of employ-
ment to encourage or discourage membership in any labor
organization.
An employer may lawfully impose some restrictions on
employees’ statutory rights to engage in union solicitation
and distribution. Such restrictions, however, must be clearly
limited in scope so as not to interfere with employees’ right
to solicit their coworkers on their own time or to distribute
literature on their own time in nonwork areas. Republic Avia-
tion Corp. v. NLRB, 324 U.S. 793 (1945); Our Way, Inc., 268
NLRB 394 (1983). The Board considers that an employer’s
maintenance of a work rule violates Section 8(a)(1) if em-
ployees would reasonably construe the language of the rule
to restrict the exercise of Section 7 rights, applying a stand-
ard articulated in Lutheran Heritage Village-Livonia, 343
NLRB 646, 646–647 (2004), and restated in NLS Group, 352
NLRB 744–745 (2008):

If the rule explicitly restricts Section 7 activity, it is unlawful.
If the rule does not explicitly restrict Section 7 activity, it is
nonetheless unlawful if (1) employees would reasonably con-
strue the language of the rule to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Section 7
rights. In applying these principles, the Board refrains from

9 Based on employee Maria Garcia’s testimony that Ms. Reilly had a
paper from which she read every time she spoke, as did Luz Ceballos in
translating, I accept that Ms. Reilly did not deviate from the script in
her remarks to employees.
reading particular phrases in isolation, and it does not presume
improper interference with employee rights.

In termination cases turning on employer motivation, the
Board applies an analytical framework that assigns the General
Counsel the initial burden of showing that union activity
was a motivating or substantial factor in an adverse em-
ployment action. The elements required to support such a
showing are union activity by the employee, employer
knowledge of that activity, and employer animus toward the
activity. Direct evidence of union animus is not required; a
discriminatory motive for adverse action may be inferred from
circumstantial evidence and the record as a whole. Verizon and
its Subsidiary Telesector Resources Group, 350 NLRB 542,
548 (2007); Tubular Corp. of America, 337 NLRB 99 (2001).
If the General Counsel meets the initial burden, the burden
of proof then shifts to the Respondent to show, as an affirm-
ative defense, that it would have taken the same action even
in the absence of the employee’s protected activity. Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982); Alton H.
Piester, LLC, 353 NLRB No. 33 (2008).
1. Independent alleged violations of Section 8(a)(1) of the
Act
a. Maintenance of work rules
The General Counsel contends that the Respondent violated
Section 8(a)(l) of the Act by maintaining the following work
rules:
Rules 11 and 12. Rules 11 and 12 respectively prohibit employ-
ees from leaving their department or the plant during a working
shift without a supervisor’s permission, and stopping work
before shift ends or taking unauthorized breaks. Citing Crowne
Plaza Hotel,10 the General Counsel argues that employees
could reasonably read Rules 11 and 12 to require consultation
with supervision before engaging in a protected work stoppage
on penalty of discipline.
The Respondent points out that Rules 11 and 12 address le-
gitimate business concerns and do not expressly or implicitly
prohibit protected activity and argues that no evidence exists
that the rules have been applied so as to restrain or chill em-
ployees in exercising their Section 7 rights or that any employ-
ee interpreted them to prohibit protected activities. The Re-
spondent cites Lafayette Park Hotel, 326 NLRB 824, 825
(1998) (mere maintenance of certain rules does not chill em-
ployees’ Sec. 7 rights). The rules considered in Lafayette Park
Hotel do not parallel those at issue herein. The Board in
Crowne Plaza Hotel, on the other hand, held that rules prohibit-
ing employees from “leaving [their] work area without authori-
zation before the completion of [their] shift [and/or] walking
off the job” were unlawfully overbroad because “an employee
would reasonably read those rules as, respectively, requiring
management’s permission before engaging in such protected
concerted activity, thereby allowing management to abrogate

10 352 NLRB 382, 386–387 (2009) (rules that prohibit “walking off
the job” and “leaving your work area without authorization before the
completion of your shift” are unlawful)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1836
the Section 7 right to engage in such activity . . . or altogether
prohibiting employees from exercising their Section 7 right to
engage in such protected concerted activities.”11 See also La-
bor Ready, Inc., 331 NLRB 1656, 1656 fn. 2 (2000) (invalidat-
ing, as overbroad, a rule that “[e]mployees who walk off the job
will be discharged”). Accordingly, I find Rules 11 and 12 vio-
late Section 8(a)(1) of the Act as impermissibly overbroad.
Rule 28. Rule 28 prohibits the unauthorized soliciting of
contributions on [the Respondent’s] premises. Citing Our Way,
Inc., 268 NLRB 394 (1983) and Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945), the General Counsel argues that
rules barring solicitation on employees’ own time are presump-
tively invalid. Without citing any authority for its position, the
Respondent contends the prohibition of “contribution” solicita-
tion cannot have a chilling effect on Section 7 rights. Although
not clearly explicated, the Respondent’s position appears to be
that the language of rule 28, restricted as it is to solicitation of
“donations,” cannot be construed to encompass any protected
activity. While barring solicitation of donations may not ex-
plicitly restrict activity protected by Section 7, I cannot find the
word “donations” to be so intrinsically limited as to prevent
employees from reasonably construing the language to prohibit
protected solicitations and thus to chill protected activity.12 See
Lutheran Heritage Village-Livonia, at 646. Since any ambigui-
ty in the Respondent’s rules must be construed against it as the
promulgator of the rules,13 I find Rule 28 to be overbroad and
violative of Section 8(a)(1) of the Act
Rule 33. Rule 33 prohibits distributing printed matter on
[Respondent’s] premises without permission. This rule unqual-
ifiedly bars literature distribution at any time on the Respond-
ent’s premises, which must necessarily include distribution of
protected material on nonworking time and in nonworking
areas. It is thus presumptively invalid. See Hale Nani Rehabil-
itation & Nursing, 326 NLRB 335 (1998); Stoddard-Quirk
Mfg. Co., 38 NLRB 615, 621 (1962).
Rule 35. Rule 35 prohibits inability or unwillingness to
work harmoniously with other employees. The adjuration to
“work harmoniously” is so imprecise as to encompass any dis-
agreement or conflict among employees, including those relat-
ed to protected discourse and/or interaction. Since employees
could reasonably construe the language of the rule to prohibit
Section 7 activity, it is overbroad and violates Section 8(a)(1)
of the Act. See Lutheran Heritage Village-Livonia, at 646.
b. Maintenance of mandatory arbitration agreement
As a condition of employment, the Respondent requires its
employees to agree to submit all employment disputes and
claims to binding arbitration, “including claims of wrongful
discharge, discrimination, harassment, or any injury to . . .
physical, mental or economic interests.”
The General Counsel contends that the Respondent’s invol-
untary arbitration provision precludes employees from seeking

11 Crowne Plaza Hotel at 386–387.
12 Among other potentially overbroad applications of the rule, it
would prohibit solicitation of a financial donation to defray printing
costs of protected literature.
13 Lafayette Park Hotel, at 828.
redress with the Board, which reasonably tends to inhibit em-
ployees from invoking their right to raise employment-related
complaints under the provisions of the Act and violates Section
8(a)(1) of the Act.
The Respondent disagrees, arguing that as the provision does
not explicitly restrict employees from resorting to the Board’s
remedial procedures, employees would not reasonably believe
they are precluded from filing unfair labor charges with the
Board. The Respondent further argues that absence of evidence
of intent to interfere with employee access to the Board and/or
of implementation prevents a finding of violation.
Applying an objective standard, the Board has found that
even if a mandatory arbitration policy does not explicitly re-
strict employees from resorting to the Board’s remedial proce-
dures, the inquiry must be whether its language “would reason-
ably be read by employees to prohibit the filing of unfair labor
practice charges with the Board.” U-Haul Co. of California,
347 NLRB 375, 377 (2006). Here, employees would reasona-
bly understand the arbitration policy to require employees to
utilize the Respondent’s arbitration procedures instead of filing
charges with the Board. Accordingly, the policy violates Sec-
tion 8(a)(1) of the Act.
3. Discharge of Xonia Trespalacios
No party disputes that the General Counsel has met the
first two elements of the Wright Line burden as to the dis-
charge of Ms. Trespalacios. Uncontroverted evidence
shows that Ms. Trespalacios engaged in union activities of
which the Respondent was aware. As to the third element—
the existence of employer animus toward Ms. Trespalacios’
union activities or to employee union support generally—
there is no direct evidence. Any finding that the Respond-
ent had a discriminatory motive in discharging Ms. Tres-
palacios must be inferred from circumstantial evidence and the
record as a whole.
Consideration of the circumstantial evidence starts with the
Trespalacios/Flores CD and necessitates a determination as to
what inferences may be drawn from the recorded footage. After
carefully reviewing the Trespalacios/Flores CD, I find that the
most tenable inference to be drawn is that Ms. Trespalacios
innocuously patted and nudged Ms. Flores’ shoulder as the two
women spoke and later bent toward Ms. Flores with folded
arms to whisper in her ear, jogging her shoulder inadvertently
in the process. Viewed in a light most favorable to the Re-
spondent, the Trespalacios/Flores footage is, at best, susceptible
to two interpretations, an innocent as well as a culpable one.
Therefore, the camera footage alone cannot justify a conclusion
that Ms. Trespalacios hostilely pushed Ms. Flores’ shoulder as
they spoke and later vindictively bumped her with folded arms.
Since the Respondent could not have unequivocally determined
the tenor of the Trespalacios/Flores interchange solely by view-
ing the Trespalacios/Flores CD, it follows that the Respondent
would have had to examine fully the circumstances surrounding
the interchange in order to ascertain fairly and impartially
whether Ms. Trespalacios had engaged in misconduct.
The course of action the Respondent took was the antithesis
of a full examination of the circumstances surrounding the
Trespalacios/Flores interchange. Ms. Reilly failed to follow
2 SISTERS FOOD GROUP 1837
established, written company policies in investigating the al-
leged misconduct of Ms. Trespalacios; she did not attempt to
obtain accounts from all witnesses to the incident; she made no
attempt to obtain Ms. Trespalacios’ version of events, although
company policy dictated that “[e]mployees should always be
given an opportunity to explain their actions,” and she took no
steps to ascertain whether Ms. Trespalacios had been given
notice of the consequences of her alleged behavior. Finally,
Ms. Reilly did not consider all available evidence to evaluate,
as policy prescribed, whether the alleged conduct was “a major
or minor problem, an isolated incident, or a recurring problem.”
Even apart from Ms. Reilly’s unexplained failure to follow
company disciplinary policy, her investigation of Ms. Flores’
complaint against Ms. Trespalacios was plainly inadequate by
any standard: she failed to gather information from all witness-
es to the incident; she failed to look into Ms. Trespalacios em-
ployment record; she rejected, without plausible explanation,
Ms. Vicente’s eyewitness account, which contradicted in mate-
rial part Ms. Flores’ accusations, and, without any articulated or
apparent need for haste, she precipitately resolved to terminate
Ms. Trespalacios. The investigation deficits and disciplinary
haste strongly suggest animus.14
Ms. Reilly’s posttermination conduct may also be considered
in determining animus. On the same day that she discharged
Ms. Trespalacios, Ms. Reilly assembled employees and played
for them the Trespalacios/Flores footage, asserting that the CD
showed an employee threatening, intimidating and physically
assaulting another employee because she had decided to vote
against the Union. Although Ms. Reilly admitted she knew of
no employee violence toward union nonsupporters since the
election petition had been filed, she nevertheless told the as-
sembled workforce that threats of physical harm against non-
supporters was worsening. Her stated aim of making employ-
ees understand they should work together, not against each
other, reveals an antipathy for employee discord that goes be-
yond reasonable workplace concerns and encompasses the ro-
bust, vigorous, and protected employee interactions that are
common during union campaigns. Ms. Reilly did not assure
employees that the Respondent would respect the rights of em-
ployees to campaign enthusiastically for the Union but only
emphasized that she would not “tolerate” the “mistreatment
some employees had shown their coworkers who disagreed

14 See Toll Mfg. Co., 341 NLRB 832, 833 (2004) (employer failure
to follow progressive discipline system evidence of unlawful motiva-
tion); Embassy Vacation Resorts, 340 NLRB 846, 848–849 (2003)
(animus shown by employer’s failure to give employees a chance to
defend themselves and its deviation from its past practice of discipline);
Guardian Automotive Trim, Inc., 340 NLRB 475, 475 fn. 1 (2003)
(employer failed to follow its progressive discipline policy); Alstyle
Apparel, 351 NLRB 1287, 1287–1288 (2007) (limited investigation
into alleged misconduct without giving employees an opportunity to
explain allegations against them supports a conclusion that the dis-
charges were discriminatorily motivated); Midnight Rose Hotel, 343
NLRB 1003, 1005 (2004) (failure to conduct fair investigation before
imposing discipline defeats claim of reasonable belief of misconduct);
Toll Mfg. Co., supra (precipitous discharge persuasive evidence of
unlawful intent).
with them on the union question.”15 Her stated aim and her
warning reveal animus toward vigorously expressed union sup-
port. Finally, since the Trespalacios/Flores footage recorded, at
most, ambiguous behavior, its presentation as an example of
conduct that could provoke termination also reveals animus
toward forceful but protected union activity.16
The Respondent’s above-described omissions and commis-
sions require an inference that the Respondent had a discrim-
inatory motive in discharging Ms. Trespalacios. Ms. Reilly’s
poorly investigated and otherwise-inexplicable assessment of
Ms. Trespalacios’ alleged misconduct and her utilization of Ms.
Trespalacios’ discharge in unwarrantedly cautioning employees
against “mistreatment” of those who differed on the union issue
evidence animus toward Ms. Trespalacios’ union activity and
toward employee union support generally.17 The General
Counsel having met the initial Wright Line burden, the bur-
den shifts to the Respondent to establish persuasively by a
preponderance18 of the evidence that it would have discharged
Ms. Trespalacios even in the absence of her union activities
or the union activities of employees generally.
In order to meet its shifted Wright Line burden, the Respond-
ent “must show that it had a reasonable belief that [Ms.
Trespalacios] committed the offense, and that it acted on
that belief when it discharged [her].” McKesson Drug Co.,
337 NLRB 935, 936–937 fn. 7 (2002). After careful con-
sideration of the evidence, for the reasons detailed above, I
find Ms. Reilly did not have a reasonable belief that Ms.
Trespalacios had committed an offense that merited termi-
nation. The Respondent has neither justified Ms. Reilly’s di-
gression from prior practice and policy nor vindicated Ms. Reil-
ly’s extraordinary postdischarge employee presentation to em-
ployees. The only rational explanation is that the Respondent
was motivated in both instances by a desire to quell employee
union support and generally to impede the union organizational
drive. The Respondent has not met its shifted burden under
Wright Line; accordingly, I find the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging Ms. Trespalacios
on July 13.
VI. REPRESENTATION CASE: FINDINGS OF FACT, AND DISCUSSION

15 See Champion Home Builders Co., 350 NLRB 788, 789 (2007)
(employer’s speech to employees lawful where it “explicitly affirmed
that [the employer] would respect the right of employees to solicit (and
even argue) for the Union.”)
16 The absence of an 8(a)(1) allegation regarding Ms. Reilly’s
presentation does not prevent me from considering it as evidence of
animus.
17 Even assuming Ms. Trespalacios was the unfortunate casualty of
the Respondent’s animus toward union activities generally rather than
animus toward her activities specifically, the General Counsel has
established the necessary animus element.
18 A “preponderance” of evidence means that the proffered evidence
must be sufficient to permit the conclusion that the proposed finding is
more probable than not. McCormick Evidence, at 676–677 (1st ed.
1954).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1838
A. Objections to the Election
The Board does not lightly set aside representation elections.
Quest International, 338 NLRB 856 (2003); Safeway, Inc., 338
NLRB 525 (2002); NLRB v. Hood Furniture Mfg. Co., 941
F.2d 325, 328 (5th Cir. 1991) (citing NLRB v. Monroe Auto
Equipment Co., 470 F.2d 1329, 1333 (5th Cir. 1972), cert. de-
nied 412 U.S. 928 (1973)). “There is a strong presumption that
ballots cast under specific NLRB procedural safeguards reflect
the true desires of the employees.” NLRB v. Hood Furniture
Mfg. Co., supra, 941 F.2d at 328, and the burden of proving a
Board-supervised election should be set aside is a “heavy one.”
Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th Cir. 1989)
(quoting Harlan #4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6th
Cir.), cert. denied 416 U.S. 986 (1974). The objecting party
must show that objectionable conduct affected employees in the
voting unit. Avante at Boca Raton, Inc., 323 NLRB 555, 560
(1997) (overruling employer’s objection where no evidence
unit employees knew of alleged coercive incident).
As the objecting party, the Petitioner has the burden of prov-
ing interference with the election. See Jensen Pre-Cast, 290
NLRB 547 (1988). The test, applied objectively, is whether the
employer’s conduct has the tendency to interfere with the em-
ployees’ freedom of choice. See Taylor Wharton Division, 336
NLRB 157, 158 (2001); Baja’s Place, 268 NLRB 868 (1984).
On July 24, the Petitioner filed 53 timely objections to em-
ployer conduct affecting the results of the election. Either prior
to or in the course of the hearing, the Petitioner withdrew all
objections except for Objections 2, 4, 12, 13,14,15,16, 17, 22,
25, 29, 31, 33, 34, 35, 37, 39, 40, 43, 45, 46, 47, 49, 50, 51, and
53, which are before me for consideration. Where objections
relate to the same sequence of events, I have considered them
together.
Objection 2
Employer, by its agents, intimidated eligible voters with loss
of employment opportunities if they supported the Union.

The Petitioner does not address this objection in its post-
hearing brief. However, the evidence adduced in support of the
objection is as follows: (1) After the Petitioner distributed con-
sumer boycott flyers at facilities of Fresh & Easy food stores
(F&E), the Employer’s sole customer, the Employer distributed
campaign flyers stating, “An Attack on Fresh & Easy is an
Attack on 2 Sisters” and “Don’t Let the UFCW Make Us Fail.”
(2) Consultant Mr. Rivera showed employees a document de-
scribing how a company in Arizona had gone bankrupt because
of a union, telling them they had the right to vote yes or no and
they should think over whether they wanted the union.
Under Section 8(c) of the Act employers may express their
views, arguments, or opinions about and regarding unions as
long as such expressions are unaccompanied by threats of re-
prisals, force, or promise of benefits. NLRB V. Gissel Packing
Co., 395 U.S. 575 (1969); International Baking Co. &
Earthgrains, 348 NLRB 1133 (2006). Even “intemperate”
personal opinions are protected by the free speech provisions of
Section 8(c). International Baking Co., 348 NLRB 1133
(2006); Sears, Roebuck & Co., 305 NLRB 193 (1991). An
employer may explain its perception of the advantages and
disadvantages of collective bargaining to its employees as long
as there are no threats or promises of benefits. Amersino Mar-
keting Group LLC, 351 NLRB 1055(2007); Langdale Forest
Products Co., 335 NLRB 602 (2001). The Board also permits
the employer to distribute antiunion materials, as long as there
is no coercion. In Re Allegheny Ludlem Corp., 333 NLRB 734
(2001). Since there is no showing that the Respondent over-
stepped its speech rights under Section 8(c), I recommend that
Objection 2 be overruled.
Objections 4 and 37
Objection 4: Employer, by its agents, interfered with the
rights of employees by singling out known Union adherents
and publically insulting them.

Objection 37: The Employer fired a known Union supporter
on or about July 13 and made an example out of her by es-
corting her out of the plant with a guard. The Employer then
showed a video to captive audience meetings using her as an
example. This coerced employees.

The evidence relating to Objections 4 and 37 has been set
forth above in the statement of facts as to the discharge of Ms.
Trespalacios and the presentation of the Trespalacios/Flores CD
to assembled employees. I have found the Respondent unlaw-
fully discharged Ms. Trespalacios. Such unlawful conduct is “a
fortiori, conduct which interferes with the results of an elec-
tion.” See Airstream, Inc., 304 NLRB 151, 152 (1991).
Further, Ms. Reilly’s statements in her July 13 meeting with
employees would reasonably have the effect of discouraging
employees’ protected activities and her threat to discipline
workers for “mistreatment” of those with differing union views
was so vague as to chill protected, albeit vigorous, activity. See
Tawas Industries, 336 NLRB 318, 322 (2001)(employer state-
ments that employees who harass or pressure other employees
in the course of union solicitations should be reported to man-
agement, who will discipline the offending individuals, dis-
courage employees from engaging in protected activity). Ac-
cordingly, I recommend that Objection 4 and 37 be sustained.
Objections 12, 45, and 50
Objection 12: Employer, by its agents, questioned and polled
employees regarding their support for the Union during the
pre-election period.

Objection 45: The Employer passed out free T-shirts and hats
to employees in a manner as to engage in interrogation of the
employees as to their sentiments for or against the Union.

Objection 50: The Employer asked voters how they voted and
if they voted.

The Employer made available to employees tee shirts and
beanies imprinted only with the Respondent’s name and logo.
Laura, a laundry room employee who gives out clean smocks
and gear to workers, handed out the tee shirts and beanies to
any interested employee at the laundry room distribution coun-
ter. Later, Laura went to the employee cafeteria and proffered
free tee shirts and beanies to employees there. Although an
employee rush to obtain the free items caused some congestion
and confusion at the laundry counter, there is no evidence that,
along with the handouts, the Respondent disseminated any
2 SISTERS FOOD GROUP 1839
coercive communications or any information at all about the
Union or the election. Accordingly, I recommend that Objec-
tions 12, 45, and 50 be overruled
Objections 13 and 35
Objection 13: Employer, by its agents, imposed a discrimina-
tory non-solicitation and/or discriminatory no-distribution rule
on employees in a manner designed to interfere with the con-
duct of a fair election.

Objection 35: The Employer maintained and enforced illegal
rules restricting section 7 activities of employees.

Objections 13 and 35 are substantially coextensive with alle-
gations of the complaint, and evidence relating to both the ob-
jections and the complaint allegations has been set forth above
in the statement of facts regarding relevant company work
rules and policies.

Although I have found that the Employer maintained over-
broad and unlawful workplace rules, it is not axiomatic that
such conduct warrants setting aside an election; rather, the
Board looks to all facts and circumstances to determine whether
the employment atmosphere was so tainted as to warrant setting
aside the election. Delta Brands, Inc., 344 NLRB 252, 253
(2005). There is no evidence the Employer implemented or
enforced the overbroad rules at any time during the critical
period or that employees’ union activities were in any way
affected by them. The evidence shows that employees engaged
in open prounion activity at the facility during the entire elec-
tion campaign and filed unfair labor practice charges. Since
there is no showing that the mere existence of the rules could
have affected the results of the election, I recommend that Ob-
jections 13 and 35 be overruled.
Objection 14
Objection 14: Employer, by its agents, denied employees ac-
cess to their Union representatives during the period preced-
ing the conduct of the NLRB election.

The Union presented no evidence in support of Objection 14.
Accordingly, I recommend that Objection14 be overruled.
Objection 22
Objection 22: The Employer, by its agents, interfered with the
free choice of employees (by) threatening to have a Union
representative arrested in the presence of employees, interfer-
ing with the laboratory conditions necessary for the conduct
of a fair election.

The evidence relating to Objection 22 consists of testimony
that when union agent Joe Duffle arrived at the facility in the
evening for the postelection vote count, an officer of the More-
no Valley Police Department told him he needed to leave the
property or face incarceration. The Union did not address this
objection in its posthearing brief, and I find no basis on which
to find that a police officer’s post-election threat to a union
agent interfered with the free election choice of any voter.
Accordingly, I recommend that Objection 22 be overruled.
Objection 33 and 47
Objection 33: The Employer interfered with the voting rights
of six employees who were forced to wait outside the plant
for up to an hour, escorted through the plant by management
and security thugs and then escorted out all serving to intimi-
date them and other employees.

Objection 47: The Employer, by its attorney, tried to prevent
employees from voting by closing the gate to employees ar-
riving before the polls closed. This intimidated the workers
who observed this although the one worker who showed up
was eventually allowed to enter the premises and vote. This
is also direct persuader activity and Seyfarth Shaw should
be required to file its LM-20.

On election day, off-duty employees seeking to vote entered
the facility through the Respondent’s entrance gate. The name of
one woman who appeared to vote had inadvertently been omitted
from the Excelsior List, and her admission was delayed for 30
minutes. Because she was on medical leave from the Respond-
ent’s Corona facility and was unfamiliar with the facility, Ms.
Reilly accompanied her to the entrance to the voting area. For-
mer employees, Perla Sosa, Soccoro Serrano, and Laura Salcedo,
alleged discriminatees in the 2008 ULP charges, were delayed for
about 30 minutes at the entrance gate until escorted by an office
employee to the voting area and permitted to vote challenged
ballots. Two individuals arrived at the facility entrance apparent-
ly shortly before the polls closed. One used an electronic em-
ployee gate pass to enter the facility. The other, Javier Castro,
who was not named on the Excelsior list, was delayed at the gate.
Both were ultimately allowed to vote. No evidence was present-
ed from which I can infer that any of the delays interfered with
any employee’s free choice in the election. Accordingly, I rec-
ommend that Objection 22 be overruled.
Objections 39
Objection 39: The Employer refused to allow representa-
tives of the Petitioner on the premises to attend a pre-
election conference, interfered with the right of one Union
observer to participate as an observer and refused to allow
Union representatives on the property to attend the vote
count.

The Union did not address this objection in its post-hearing
brief, but evidence relating to Objection 39 consists of the fol-
lowing: (1) although union representatives attended a pre-election
conference conducted by the Region, the Respondent limited
their number; (2) employee Pablo Andreas, prospective union
observer, arrived at the facility gate, telling a guard that he was to
be an election observer but that he was 30 minutes late. When
asked to wait, he waited for 15 minutes and then went to the
parking lot; (3) the same facts as set forth under Objection 22.
None of the evidence adduced in support of Objection 39 per-
mits an inference that any of the alleged conduct interfered with
the free election choice of any employee or precluded a fair elec-
tion. Accordingly, I recommend that Objection 39 be overruled.
Objections 15, 16, 34, and 43
Objection 15: Employer, by its agents, including third party
agents, created an atmosphere of fear and coercion, interfer-
ing with the laboratory conditions necessary for the conduct
of a fair election.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1840
Objection 16: Employer, by its agents, and by third parties,
created an atmosphere of fear, intimidation and coercion
which made impossible the holding of a fair election.

Objection 34: The Employer hired extra security guards dur-
ing the campaign and on the election day in order to intimi-
date employees.

Objection 43: The Employer created an atmosphere of coer-
cion by having three Moreno Valley police stationed at the
plant on election day. This along with the increased security
thugs caused an atmosphere of intimidation.

During a union demonstration conducted by the Union in May,
40–50 demonstrators, over the objections of Respondent’s man-
agers and security officers, entered the Respondent’s premises.19
Although management repeatedly advised the demonstrators they
were trespassing and asked them to leave, the demonstrators
raucously refused to leave the building, demanding that the Re-
spondent recognize the Union and shouting for Ms. Reilly to
appear. The demonstrators remained in the Respondent’s facility
until ousted by law enforcement.
On the day of the election, the Respondent increased security
officers from one to six, positioning guards at the gates and park-
ing area of the property, a not unwarranted precaution in light of
the May demonstration. In response to a rumor that a large group
of demonstrators was approaching the facility, the Respondent
requested law enforcement presence, and Sheriff’s Department
officers appeared briefly at the facility with one unit staying 20 to
25 minutes. There is no evidence the officers interacted with
voters or interjected themselves into election issues.
The objecting party must show the conduct in question had a
reasonable tendency to interfere with the employees’ free and
uncoerced choice in the election. Quest International, 338 NLRB
856, 857 (2003). Since neither the security guards nor law en-
forcement personnel engaged in any coercive or even questiona-
ble conduct towards employees, I cannot find that the Respond-
ent’s implementation of security measures on the day of the
election had a reasonable tendency to interfere with the em-
ployees’ free and uncoerced choice in the election. According-
ly, I recommend objections 15, 16, 34, and 43 be overruled.
Objections 17 and 40
Objection 17: The Employer, by its agents, made captive au-
dience speeches to employees within 24 hours before the
scheduled time of the Board conducted election.

Objection 40: The Employer engaged in a captive audience
meeting within 24 hours of the election by having numerous
on-on-one meetings where the same script was read to em-
ployees effectively constituting a captive audience meeting.

As to Objection 17, the Union has proffered no evidence of
any formal captive audience meeting held by the Respondent
within 24-hours of the election. The objection appears relate to
the July 13 meeting, detailed above, in which Ms. Reilly played
the Trespalacios/Avila CD for employees. Pointing out the
coercive character of the July 13 meeting, the Union argues that
“the Board should use this opportunity to prohibit captive audi-

19 The Respondent provided video evidence of the demonstration.
ence meetings by the employer during the critical period.” The
Union correctly “recognize[s] this Judge will not overrule…
current Board precedent” and proposes to reserve meaningful
discussion for the appellate process. As the Union acknowledg-
es, the objections hearing is not the appropriate forum in which
to seek reversal of Board precedent; accordingly I recommend
objection 17 be overruled.
As to Objection 40, the Union argues that interaction among
the Respondent’s consultants and various employees on the day
of the election was tantamount to captive audience meetings.
On the day of the election, consultant Mr. Rivera spoke to vari-
ous employees in the locker room, in the employee cafeteria
during employees’ break or lunch times, and in the designated
smoking area. The Board has said that the 24-hour rule enunci-
ated in Peerless Plywood, 107 NLRB 427, 429 (1953) “was not
intended to, nor, in our opinion, does it prohibit every minor
conversation between a few employees and a union agent or
supervisor for a 24-hour period before an election.” Business
Aviation, Inc., 202 NLRB 1025 (1973). The Board has also held
that the rule does not prohibit employers and unions from making
campaign speeches during the 24-hour period “if employee at-
tendance is voluntary and on the employees’ own time.” Peerless
Plywood Co., supra at 430; see also Foxwoods Resort Casino,
352 NLRB 771, 771 and 780–781 (2008).
Although employees may have been personally disinclined to
leave the locker room, cafeteria, or smoking area when the Re-
spondent’s consultant spoke to them, they cannot by any stretch
of logic have been considered “captive.” As the Union has pre-
sented no evidence to show that the Respondent made speeches
to a captive assembly of employees within 24 hours of the elec-
tion, I recommend that Objection 40 be overruled.
Objection 25
The Employer, by its agents, engaging in campaigning at
the polling places and in the line to the polling place by the
NLRB conducted election.

The Union contends that because campaign posters urging
employees to vote against the Union were affixed to facility walls
in proximity to the immediate voting area and along the antici-
pated route to the voting area, election laboratory conditions were
violated.20 There is no evidence the posters were affixed on the
day of the election, rather it appears the posters had been dis-
played for some time. The following employees, Pablo Andreas,
Maria Garcia, Antonio Quintero, and Zeferino Arzate testified,
variously, that on the day of the election the Vote-No posters
could be seen in the changing room and the production office, at
the plant entrance, in the cafeteria, next to the Human Resources
office, at the back door, by the production office, and near the
production rooms. Employees had to pass some of the posters
enroute to the voting area. There is no evidence the posters were
visible to voters waiting in line to vote.
In considering objections of impermissible electioneering, the
Board determines whether the conduct, under the circumstances,
warrants an inference that it interfered with the free choice of the
voters by assessing the following factors: whether the conduct

20 The Union raises no objection to the content of the posters but on-
ly to their placement.
2 SISTERS FOOD GROUP 1841
occurred within or near the polling place, whether the conduct
occurred within a designated “no electioneering” area, the extent
and nature of the alleged electioneering, whether it was conduct-
ed by a party to the election or by employees, and whether it is
contrary to the instructions of the Board agent. Boston Insulated
Wire & Cable Co., 259 NLRB 1118, 1119 (1982).
Under the circumstances of this case, the evidence is insuffi-
cient to warrant an inference that the existence of Vote-No post-
ers interfered with the exercise of the employees’ free choice.
There is no evidence the posters could be seen by employees
waiting in line to vote; they were not displayed in any no-
electioneering area, and their placement did not violate any in-
structions by the Board agent. The posters were apparently in
situ during much of the pre-election period; no particular atten-
tion was drawn to them on the day of the election, and there is no
reason to infer that their continued presence, without more, rose
to the level of impermissible electioneering. Accordingly, I rec-
ommend that Objection 25 be overruled.
Objections 29, 31, and 49
Objection 29: The Employer, by its agents, discriminated
against employees in violation of Sections 8(a)(1) and (3) by
terminating them because of their union and/or protected
concerted activities.

Insofar as Objection 29 relates to the discharge of Sonia Tres-
palacios, that issue has been dealt with under Objections 4 and 37
and need not be reconsidered under Objection 29. No evidence
as to any other discriminatory discharge was received.

Objection 31: The Employer fired four Union supporters
during the pre-petition period. Those unlawful discharges
have not been remedied.

Objection 49: The Employer committed numerous viola-
tions of the Act which are the subject of the Complaint in
Case 21–CA–38480 and 38563. Those unfair labor practices
are unremedied and the failure to remedy them interferes
with laboratory conditions.

Objections 31 and 49 relate to the unfair labor practice alle-
gations stemming from the 2008 ULP charges. As noted earli-
er, following several days of hearing on the cases, an adminis-
trative law judge approved the parties’ settlement agreement of
the complaint allegations on September 28. Compliance on the
settlement agreement thereafter closed. I have declined to re-
ceive the hearing transcripts/exhibits and settlement agreement
in these cases as evidence of wrongdoing. Accordingly, I rec-
ommend that Objections 31 and 49 be overruled.
Objection 46
The Employer asked employees not to wear items supporting
the Union.

The Union provided no evidence in support of this objection.
Accordingly, I recommend objection 46 be overruled.
Objection 51
The Union was not allowed at the pre-election conference to
tour enough of the facility in order to insure that the voting
areas would be secure from campaigning and that there would
be free access to voting without intimidation and coercion from
the Employer.
The Union did not address this objection in its post-hearing
brief, but the evidence relating to Objection 51 is essentially
that during the pre-election conference, the Respondent refused
to accommodate a union representative’s request to tour em-
ployees’ pathways from work areas to the voting room. There
being no basis for inferring that the Respondent’s denial of this
request would interfere with employees’ free choice in the elec-
tion, I recommend objection 51 be overruled.
Objection 53
The Employer, through its agents, unlawfully recorded em-
ployees, thus intimidating and coercing them.

At the time of the election, the Respondent operated 30 secu-
rity cameras in the plant, all of which recorded in “real time”
mode and which surveyed the Respondent’s entire operations.
On the day of the election the two cameras in the immediate
vicinity of the voting area were conspicuously covered with
cardboard boxes. The remaining 28 cameras were operative
throughout the election day as usual. Camera footage from the
remaining cameras was viewable in the security-guard and Ms.
Reilly’s offices. Although each employee would normally have
to pass by four or five operating cameras on his/her way to the
voting area, no camera was positioned to track employees’ final
passage into the voting area.
The Union contends that by viewing election-day camera
footage, the Respondent could determine with reasonable accu-
racy who was and who was not voting by tracking employees’
treks from work areas to the voting area. Such information
could allow the Respondent to “encourage employees to vote
whom the employer believes to be employer sympathizers” and
to allow the Respondent to “coerce employees because they
know that they are being watched whether they decide to vote
or not vote.” There is no evidence the Respondent encouraged
any employee to vote or had any knowledge of whether indi-
vidual employees had or had not voted.
The Board “recognize[s] that an employer has the right to
maintain security measures necessary to the furtherance of
legitimate business interests during the course of union activi-
ty.” National Steel & Shipbuilding Co., 324 NLRB 499, 501
(1997), enfd. 156 F.3d 1268 (D.C. Cir. 1998). The Board also
finds it “neither unlawful nor objectionable when a . . . security
camera, operating in its customary manner, happens to record
protected concerted activity on videotape.” Robert Orr-Sysco
Food Services, 334 NLRB 977 (2001). There being no evi-
dence that the Respondent’s security cameras in use on election
day operated in other than their customary manner, I recom-
mend objection 53 be overruled.
Alleged Conduct Not Included in the Union’s Objections
In its post-hearing brief, the Union has alleged that Board
agent misconduct interfered with the election, arguing that a
Board agent’s pre-election-day tour of the facility constituted
secretive and serious misconduct warranting a new election.
The Union has raised an issue “not reasonably encompassed
within the scope of the objections that the Regional Director set
for hearing.” See Precision Products, 319 NLRB 640, 641
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1842
(1995). A party affected by objections to an election is denied
procedural due process if the fundamental requirements of
“meaningful notice . . . and . . . full and fair opportunity to liti-
gate” are not provided. Factor Sales, Inc, 347 NLRB 747
(2006). To be “meaningful, the notice must provide a party
with a “clear statement” of the accusation against it, as a party
“cannot fully and fairly litigate a matter unless it knows what
the accusation is.” Champion International Corp., 339 NLRB
672, 673 (2003). Inasmuch as the Union’s allegations in this
regard constitute an untimely objection, they are not consid-
ered.
VII. CONCLUSIONS AS TO THE UNION’S OBJECTIONS
Inasmuch as I have recommended that Objections 4 and 37
be sustained, I recommend that the election held on July 17,
2009, in Case 21–RC–021137 be set aside and that the repre-
sentation proceeding be remanded to the Regional Director of
Region 21 for the purpose of conducting a second election.
Further, in accordance with Lufkin Rule Co., 147 NLRB
241 (1964), and Fieldcrest Cannon, Inc., 327 NLRB 109, 109
fn. 3 (1998), I recommend that the following notice be is-
sued in the Notice of Second Election in Case 21–RC–21137:
NOTICE TO ALL VOTERS
The election conducted on July 17, 2009, was set aside because
the National Labor Relations Board found that certain conduct
of the Employer interfered with the employees’ exercise of a
free and reasoned choice among employees in the following
unit:

All full-time and regular part-time production employees,
maintenance employees, technical/quality assurance employ-
ees, sanitation employees, shipping and receiving employees
and plant clerical employees employed by the Employer at its
Riverside facility, excluding all other employees, temporary
employees, office clerical employees, professional employees,
guards and supervisors as defined in the Act.

Therefore, a new election will be held in accordance with the
terms of this notice of election. All eligible voters should un-
derstand that the National labor Relations Act, as amended,
gives them the right to cast their ballots as they see fit and pro-
tects them in the exercise of this right, free from interference by
any of the parties
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and
in a business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
promulgating and maintaining overbroad work rules and by
promulgating and maintaining a mandatory arbitration rule that
required employees to waive their right to file charges with the
Board.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by terminating employee Xonia Trespalacios because she
engaged in union or other concerted protected activities and
to discourage employees from engaging in these activities.
5. The unfair labor practices set forth above affect commerce
within the meaning of Section 8(a)(3) and (1) and Section 2(6)
and (7) of the Act.
6. By the conduct described in Objections 4 and 37, which
conduct occurred during the critical election period, the Re-
spondent has interfered with the holding of a fair election; the
conduct warrants setting aside the election in Case 21–RC–
21137 that was conducted on July 17, 2009.
REMEDY
Having found the Respondent has engaged in certain unfair
labor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent having unlawfully terminated employee
Xonia Trespalacios, it must offer her reinstatement and make
her whole for any loss of earnings and other benefits. Back-
pay shall be computed on a quarterly basis from the dates of
her discharge to the date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as computed in
New Horizons, 283 NLRB 1173 (1987). The Respondent will
be ordered to make appropriate emendations to Xonia Tres-
palacios’ personnel files. The Respondent will be ordered to
post appropriate notices.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended21
ORDER
The Respondent, 2 Sisters Food Group, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining overbroad work rules and
a mandatory arbitration rule that requires employees to waive
their rights to file charges with the Board
(b) Terminating any employee for engaging in union ac-
tivities and/or to discourage employees from engaging in un-
ion activities.
(c) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer em-
ployee Xonia Trespalacios full reinstatement to her former
jobs or, if that job no longer exists, to substantially equiva-
lent positions, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make employee Xonia Trespalacios whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against her, in the manner set forth in the

21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
2 SISTERS FOOD GROUP 1843
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful termination of
Xonia Trespalacios and, within 3 days thereafter notify, her
in writing that this has been done and that the termination
will not be used against her in any way.
(d) Preserve and, within 14 days of a request, or such ad-
ditional time as the Regional Director may allow for good
cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports,
and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Riverside, California, copies of the attached notice
marked “Appendix.”22 Copies of the notice, on forms provided

22 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
by the Regional Director for Region 21 after being signed by
the Respondent’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 Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by Respondent at any
time since July 13, 2009.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”