Caribe Ford

National Labor Relations Board - Board Decisions

Nov 13, 2006

348 N.L.R.B. 1108 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 74
1108
Caribe Ford and Union Nacional de Trabajadores de
Puerto Rico and Generoso Perez. Cases 24–CA–
8291, 24–CA–8435, and 24–CA–8356
November 13, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND KIRSANOW
On December 29, 2000, Administrative Law Judge
George Alemán issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed a brief in support of the judge’s
decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der, and to adopt the recommended Order as modified
and set forth in full below.2
The judge found, inter alia, that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discharging
employee Generoso Pérez in January 19993 for engaging
in protected union activity. In its exceptions, the Re-
spondent contends that the requisite elements of a viola-
tion have not been met because the judge erroneously
inferred, in the absence of direct evidence, that the Re-
spondent knew about Pérez’ union activity. We find
merit in the Respondent’s argument.4
To prove a violation of Section 8(a)(3) and (1) under
our decision in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F. 2d
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
2 We shall modify the judge’s recommended Order to conform to the
violations found and in accordance with Ferguson Electric Co., 335
NLRB 142 (2001). We shall also substitute a new notice to conform to
the Order as modified and in accordance with Ishikawa Gasket Amer-
ica, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
3 All dates herein are 1999, unless otherwise indicated.
4 The Respondent also argues that the judge erroneously inferred an-
tiunion animus. Given our finding that there is insufficient evidence of
the Respondent’s knowledge of prounion activity, it is unnecessary to
address the Respondent’s argument regarding antiunion animus.
989 (1982), the General Counsel must first prove, by a
preponderance of the evidence, that the employee’s pro-
tected conduct was a motivating factor in the employer’s
adverse action against that employee.5 Once the General
Counsel makes a showing of discriminatory motivation
by establishing the employee’s union activity, the em-
ployer’s knowledge of it, and the employer’s animus
against it,6 the burden of persuasion shifts to the em-
ployer to establish that it would have taken the same ad-
verse action against the employee even in the absence of
the employee’s union activity.
We find that the General Counsel failed to establish a
prima facie case of unlawful discharge under the Wright
Line standard. Specifically, we find that the General
Counsel failed to prove that the Respondent had knowl-
edge of union activity at the time of Pérez’ discharge.
The record clearly establishes that the Respondent be-
came aware of the union organizing drive in mid-March,
almost 2 months after Pérez’ discharge. Rolando Fal-
gueras, the Respondent’s general manager, testified that
he learned of the union activity from Jose Carrasquillo,
the Respondent’s service department manager, sometime
in March; and there is no evidence that Carrasquillo sat
on that information before communicating it to Fal-
gueras. Even the General Counsel concedes that there is
no direct evidence that the Respondent was aware of any
union activity among its employees prior to Pérez’ Janu-
ary 22 discharge, let alone evidence that Pérez supported
the Union or had engaged in union activities.
Despite this uncontradicted evidence that knowledge
was acquired in March, and despite the complete absence
of any direct evidence of knowledge before that time, our
dissenting colleague posits that circumstantial evidence
can be relied on to show that the Respondent learned of
the union activity in January. More particularly, our dis-
senting colleague argues that knowledge of union activ-
ity can be inferred from, inter alia, animus toward union
activity.
We agree that where an employer displays animus to-
ward union activity, there is presumably employer
knowledge of that activity. Further, where there is gen-
eral knowledge of union activity and animus toward that
activity, one might infer knowledge of union activity by
an alleged discriminatee. For example, in Montgomery
Ward, 316 NLRB 1248, 1254 (1995), enfd. 97 F.3d 1448
(4th Cir. 1996), the employer argued that it did not vio-
late Section 8(a)(3) in April when it discharged employ-
ees Guss and Groenwoldt because it had no knowledge
specifically of their union involvement. However, the

5 Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
6 Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999).
CARIBE FORD 1109
Board found that the employer displayed strong anti-
union animus in March, after learning generally of the
union organizing effort among its employees. Thus, ac-
cording to the Board, specific knowledge of Guss’ and
Groenwoldt’s union activities could be inferred from the
employer’s general knowledge of union activity and
demonstrated hostility toward such activity.
Similarly, in Pan-Osten Co., 336 NLRB 305, 308
(2001), the employer was aware of union activities
among its employees generally and had displayed hostil-
ity toward a known union supporter. Despite the fact
that there was no evidence of the employer’s specific
knowledge of employee Mosby’s union activities, the
Board concluded that Mosby was unlawfully discharged.
The Board stated that a reasonable inference of knowl-
edge could be drawn based on the employer’s general
knowledge of union activity among its employees and its
demonstrated hostility toward such activities preceding
Mosby’s discharge. Id. at 308.
By contrast, in the instant case, there is no evidence
that the Respondent was even generally aware of union
activity among its employees at the time it discharged
Pérez. The conduct allegedly showing animus began in
March 1999, when the Respondent became generally
aware of union activity. With no evidence that the Re-
spondent had any knowledge of union activity among its
work force at the time it discharged Pérez, we find its
later-displayed animus insufficient to infer that it knew
specifically of Pérez’ union activity.
Our colleague also relies on the purported openness of
Pérez’ union activities to support an inference of knowl-
edge. The record makes clear, however, that Pérez was
discreet about those activities. After meeting with a un-
ion representative on January 8, Pérez assembled some
coworkers to tell them that there would be a union in-
formational meeting on January 27. According to Pérez
and another employee witness, no one from management
was present when Pérez conveyed this information to
employees. And, after this meeting, up through the time
of his discharge, there is no evidence that Pérez or any
other employee spoke to management about the Union or
Pérez’ support of it. Finally, when Pérez was discharged
on January 22, the Respondent said nothing to indicate
that his discharge bore any relation to his union activi-
ties.7
The cases our colleague cites in support of inferring
knowledge from open union activity are distinguishable.
In Vibra-Screw, Inc., 301 NLRB 371 (1991), the em-
ployees at issue “went around Respondent’s plant to tell

7 The letter given to Pérez at the time of his discharge indicated that
he was being discharged for low production.
most of the unit employees what transpired” at a union
meeting the day before. Id. at 373. Here, by contrast,
Pérez’ union activity was localized and brief. Moreover,
it was unwitnessed by and undisseminated to manage-
ment. In NLRB v. Hospital San Pablo, Inc., 207 F.3d 67
(1st Cir. 2000), enfg. 327 NLRB 300 (1998), the dis-
criminatee had engaged in “extensive and prolonged
[u]nion activities.” 327 NLRB at 300. In addition, the
respondent in that case already was aware that its em-
ployees were engaging in prounion activity and that the
activity had begun in the discriminatee’s department.
Here, Perez did not engage in extensive and prolonged
union activities, and the Respondent did not have even
general knowledge of union activities.
Our dissenting colleague also relies on the timing of
Pérez’ discharge to support the inference that Respon-
dent knew of his union activities. We acknowledge that
the Respondent discharged Pérez soon after he contacted
the Union, and that this circumstance may raise suspi-
cions. However, under Wright Line, supra, the General
Counsel bears the burden to prove employer knowledge
as part of his Wright Line case. Mere suspicion arising
from coincidental timing alone is insufficient to sustain
that burden. See, e.g., Lasell Junior College, 230 NLRB
1076 fn. 1 (1977). In NLRB v. Novelty Products Co., 424
F.2d 748, 750 (2d Cir. 1970), enfg. 170 NLRB 466
(1968), cited by the dissent on the issue of timing, there
was abundant evidence of both employer knowledge of
union activity and demonstrated animus at the time of the
mass layoffs at issue in that case. Here, both of those
elements are missing.
In sum, where, as here, there is insufficient evidence
that the Respondent had knowledge of Pérez’ union ac-
tivity at the time of his discharge, the General Counsel
has not satisfied his burden of proof under Wright Line.8

8 Chairman Battista agrees with Member Kirsanow that the evidence
does not establish that the Respondent knew, at the time of Pérez’
January discharge, of any union activity by Pérez. In addition, Chair-
man Battista concludes that the evidence does not establish antiunion
animus as of that time. At most, the evidence shows such animus in
March, 2 months after the discharge. Contrary to Member Liebman,
assuming arguendo evidence supporting a finding of knowledge of
Pérez’ union activity, it does not follow that proof of one element of the
General Counsel’s prima facie case will constitute proof of another
element, antiunion animus. “To hold otherwise is to pile inference on
top of inference.” Alldata Corp., 327 NLRB 127, 128 (1998) (dissent),
enfd. denied 245 F.3d 803 (D.C. Cir. 2001). In denying enforcement of
the Board’s order as it related to the discharge of employee Abbadessa,
the D.C. Circuit stated: “We agree with the dissenting Board member
that there is simply no evidence that [the respondent] ever manifested
any hostility to Abbadessa’s protected concerted activity.”
Further, even if there were such animus in January, that would not
show knowledge of union activity in January. In this regard, Chairman
Battista does not agree that animus toward union activity yields a pre-
sumption of knowledge of union activity. The two elements of an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1110
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion of
Law 4.
4. By issuing an 8-day suspension and discipli-
nary writeups to Jose DeDiego on April 27 and Au-
gust 10 and 13, respectively, and thereafter discharg-
ing DeDiego on September 3, for his union activi-
ties, the Respondent violated Section 8(a)(3) and (1)
of the Act.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we find that it must be ordered
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
To remedy its discriminatory treatment of Jose
DeDiego, the Respondent shall be ordered, within 14
days from the date of the Board’s Order, to offer him full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges he previously enjoyed. The Respondent shall also
be required to make Jose DeDiego whole for any loss of
earnings and other benefits he may have suffered due to
his unlawful discharge and his 8-day suspension in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest on such amounts to be com-
puted as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). The Respondent will also be
required, within 14 days from the date of the Order, to
rescind and remove from its files any and all reference to
DeDiego’s unlawful April 27 8-day suspension, August
10 and 13 disciplinary write-ups, and September 3 dis-
charge, and within 3 days thereafter, to notify him in
writing that this has been done and that the unlawful con-
duct will not be used against him in any way. Finally,
the Respondent shall be required to post an appropriate
notice.9
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the

8(a)(3) violation are not the same. An employer may well fear union
activity and display animus toward union activity, even if there is in
fact no ongoing union activity or knowledge of any union activity. In
addition, even if there is ongoing union activity and employer animus
toward that activity, that does not yield a presumption of knowledge
that alleged discriminatee X engaged in that activity.
9 Nothing herein shall require the Respondent to rescind any benefits
or improvements in employee terms and conditions of employment that
were unlawfully granted or made by the Respondent to dissuade em-
ployees from supporting the Union.
Respondent, Caribe Ford, San Juan, Puerto Rico, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Cease and desist from
(a) Threatening to close its facility if a union were
brought in; prohibiting employees from distributing un-
ion literature during their nonworking time and threaten-
ing them with discharge if they do so; creating an im-
pression of surveillance of its employees’ union activi-
ties; and soliciting, promising to remedy, and remedying
employee grievances in an effort to dissuade them from
supporting the Union.
(b) Suspending, issuing written warnings to, and dis-
charging Jose DeDiego or any other employee for sup-
porting Union Nacional de Trabajadores de Puerto Rico,
or any other union.
(c) 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) Within 14 days from the date of this Order, offer
Jose DeDiego full reinstatement to his former job or, if
his job no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Jose DeDiego whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him in the manner set forth in the amended
remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful 8-day suspen-
sion of, disciplinary warnings issued to, and discharge of
Jose DeDiego and, within 3 days thereafter, notify him in
writing that this has been done and that the suspension,
warnings, and discharge will not be used against him in
any way.
(d) 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 re-
cords 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 facility in San Juan, Puerto Rico, copies of the at-
tached notice marked “Appendix.”10 Copies of the no-

10 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-
CARIBE FORD 1111
tice, on forms provided by the Regional Director for Re-
gion 24, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity 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 March 24,
1999.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
MEMBER LIEBMAN, dissenting in part.
It is well established that circumstantial evidence can
suffice to prove that the employer knew of the em-
ployee’s union activity, one element required to establish
a discriminatory discharge under Section 8(a)(3) of the
Act. Here, contrary to the majority, I would infer that the
Respondent knew that Generoso Pérez was a leading
union supporter, when it discharged him promptly after
he engaged in open union activity. As the judge did, I
would go on to infer that the Respondent was motivated
by antiunion animus, based on (among other things) the
adjudicated unfair labor practices committed by the Re-
spondent after Pérez’ discharge. Finally, the General
Counsel having carried his initial burden of proof, I
would find that, given the shifting and inconsistent
grounds it offered, the Respondent failed to prove that it
would have discharged Pérez even absent his union ac-
tivity.
I.
The record clearly establishes that Pérez, one of the
Respondent’s salesmen, engaged in protected union ac-
tivity. Indeed, as found by the judge, Pérez met with the
Union about organizing the Respondent’s employees in
early January 1999. Thereafter, Pérez convened a public
meeting of his coworkers, in the Respondent’s show-
room, to tell them that he had contacted the Union and to
set up a union informational meeting for all interested
employees, to be held later that month.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Within days of this employee meeting, the Respondent
initiated a performance evaluation of its sales force. The
results of that evaluation revealed that at least four sales-
men had worse sales records than Pérez.1 Nonetheless,
only Pérez and one other employee were discharged.
After Pérez’ discharge, when the employees’ union ac-
tivities culminated in the March 1999 filing of an elec-
tion petition, the Respondent reacted further against the
employees’ organizing activities by committing a series
of unfair labor practices, including threatening employ-
ees with plant closure, creating the impression that em-
ployee union activity was being surveilled, soliciting
grievances and promising to remedy them, and disciplin-
ing and discharging an additional employee because of
his union activities.2
II.
The majority argues that, on these facts, the General
Counsel failed to satisfy his Wright Line3 burden, be-
cause there is insufficient evidence that the Respondent
knew of Pérez’ union activities. Separately, Chairman
Battista also posits that the record fails to establish that
the Respondent had demonstrated animus toward Pérez’
activities. I disagree.
A.
With respect to knowledge, it is “well established that,
in the absence of direct evidence, an employer’s knowl-
edge of an employee’s union activities may be proven by
circumstantial evidence from which a reasonable infer-
ence may be drawn.” Pan-Oston Co., 336 NLRB 305,
308 (2001).
Such circumstantial evidence may include the “em-
ployer’s demonstrated union animus, the timing of the
discipline or discharge, and the pretextual reasons for the
discipline or discharge asserted by the employer.” Id.
The Board has also held that an employee’s open union
activities may constitute circumstantial evidence giving
rise to a “proper inference of an employer’s prior knowl-
edge of a discriminatee’s protected activities.” Vibra-
Screw, Inc., 301 NLRB 371, 373 (1991).
In regard to animus, “[i]t is well established that a dis-
criminatory motive may be inferred from circumstantial
evidence and the record as a whole, and that direct evi-
dence of animus is not required.” Tubular Corp. of
America, 337 NLRB 99 (2001).

1 Indeed, as noted by the judge, a Respondent-produced document
shows that during the 6-month period prior to his discharge, Pérez’
production exceeded that of at least six other sales employees.
2 We are unanimously adopting these violations, as found by the
judge.
3 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1112
B.
Here, the circumstantial evidence creates a strong in-
ference of both the Respondent’s knowledge and its ani-
mus with respect to Pérez’ union activities.
1.
As to knowledge, sales employee Pérez contacted the
Union and conducted a meeting about the Union in an
open, public area within the Respondent’s facility. In
these circumstances,
it is reasonable to believe that someone dropped a hint,
if not more to management. Human nature is not to the
contrary.
NLRB v. Hospital San Pablo, Inc., 207 F.3d 67, 74 (1st Cir.
2000) (noting that the discriminatee was a “committed un-
ion activist and actually solicited co-workers” in the work-
place), enfg. 327 NLRB 300 (1998).
Just a few days after Pérez’ open union activities, he
was discharged. As one court has put it, the timing of the
discharge was “stunningly obvious.” NLRB v. Novelty
Products Co., 424 F.2d 748, 750 (2d Cir. 1970). Fur-
thermore, Pérez’ was discharged purportedly for poor
performance, even though he had a better record than at
least four other salespeople. The Respondent’s stated
reason for Perez’ discharge therefore appears to be a pre-
text, a point more fully discussed below.4
Finally, as I will explain, there is abundant evidence of
animus, which is relevant to the issue of employer
knowledge, as well as to the issue of motive.
This combination of open union activity, timing, pre-
text, and animus provides sufficient circumstantial evi-
dence to establish the Respondent’s knowledge of Pérez’
union activity.
In concluding that the General Counsel failed to estab-
lish that the Respondent had knowledge of Pérez’ union
activity, my colleagues rely significantly on the testi-
mony of Ronald Falgueras and Carrasquillo that they
first became aware of the employees’ organizing drive in
March 1999. That the Respondent’s officials admitted
having knowledge 2 months after Pérez’ discharge, how-
ever, does not establish that they lacked knowledge ear-
lier. It is clear that the judge, in inferring knowledge
from circumstantial evidence, implicitly discredited Fal-

4 The Board has also inferred knowledge where there is a delay be-
tween the employer’s discipline and the employee’s alleged miscon-
duct. Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd.
97 F.3d 1448 (4th Cir. 1996). Here, the Respondent asserted at one
point that Pérez had been discharged based on two disciplinary warn-
ings he had received months before his January 22, 1999 discharge: one
on April 22, 1998, when the company was under different ownership,
and the other on October 2, 1998. Pérez denied receiving either warn-
ing.
gueras’ and Carrasquillo’s testimony that they were un-
aware of Pérez’ prounion efforts in January 1999.
2.
Contrary to Chairman Battista’s view, there was also
good reason to infer animus with respect to Pérez’ dis-
charge.
The timing of Pérez’ discharge so soon after he con-
tacted the Union, as well as the Respondent’s disparate
treatment of Pérez in relation to other sales personnel,
support a finding of animus. See, e.g., Medic One, Inc.,
331 NLRB 464, 475 (2000), citing Adco Electric, 307
NLRB 1113, 1123 (1992), enfd. 6 F.3d 1110 (5th Cir.
1993).
The Respondent’s later violations of the Act, in which
antiunion animus was openly displayed, are also relevant
to assessing whether Pérez’ discharge, early in the union
organizing effort, was unlawfully motivated. As em-
ployee union activity increased, the Respondent reacted
with multiple violations of Section 8(a)(1) and (3). For
example, the Respondent told employee DeDiego that
the mere fact that he had tried to bring in the Union was
enough reason for the Company to fire him, and it told
DeDiego and other employees that if the Union did come
in the Respondent would close down the business.
It is reasonable to infer, based on the course of the Re-
spondent’s conduct, that the Respondent harbored ani-
mus against Pérez’ union activities. That a more wide-
spread display of animus followed Pérez’ discharge,
rather than preceding it, simply suggests that the Re-
spondent saw a need to coerce employees on a wider
scale than it did at the time it fired the leading union sup-
porter. Given the intensity of the Respondent’s animus,
it seems implausible to conclude that it was not engen-
dered until after Pérez was discharged.
In concluding that the elements of knowledge and
animus reasonably may be inferred from all of the cir-
cumstances, I have also considered the Respondent’s
shifting explanations for Pérez’ discharge. “‘Shifting
explanations for discharge may, in and of themselves,
provide evidence of unlawful motivation.’” U.S. Coach-
works, Inc., 334 NLRB 955, 957 (2001), quoting NLRB
v. Henry Colder Co., 907 F.2d 765, 769 (7th Cir. 1990).
“The Board has long expressed the view that ‘when an
employer vacillates in offering a rational and consistent
account of its actions, an inference may be drawn that the
real reason for the conduct is not among those asserted.’”
Sound One Corp., 317 NLRB 854, 858 (1995), enfd. 104
F.3d 356 (2d Cir. 1996), quoting Aluminum Technical
Extrusions, 274 NLRB 1414, 1418 (1985).
Here, the Respondent gave inconsistent explanations
for Pérez’ discharge in its answer, at the hearing, and in
its brief. In its answer, the Respondent cites the reason
CARIBE FORD 1113
for Pérez’ discharge as poor performance. At the hear-
ing, the Respondent blamed Pérez’ discharge on low
production and a poor attitude. In its brief, the Respon-
dent claims that Pérez was discharged due to economic
problems that it was having. The judge appropriately
drew an adverse inference from the Respondent’s incon-
sistent explanations and concluded that the actual reason
for the Respondent’s conduct was not among those as-
serted.
C.
Based on all of these circumstances, I would adopt the
judge’s finding that the General Counsel carried his ini-
tial Wright Line burden of proving that the Respondent
had knowledge of Pérez’ union activity, and that his dis-
charge was motivated by antiunion animus.
In turn, I would also adopt the judge’s finding that the
Respondent has not carried its Wright Line rebuttal bur-
den of demonstrating that it would have discharged Pérez
even absent his union activity. As discussed, the Re-
spondent’s claim that Pérez was discharged for low pro-
duction is unsupportable. The record evidence estab-
lishes that several employees with worse performance
records than Pérez were retained. Further, as found by
the judge, the Respondent’s additional justifications were
pretextual or after-the-fact rationalizations.
III.
For these reasons, and those stated by the judge, I
would find that the Respondent’s discharge of Pérez vio-
lated Section 8(a)(3) and (1) of the Act.
Ismael Rodriguez Izquierdo, Esq., for the General Counsel.
Jesus Diaz Rivera and Rebecca Diaz, Esqs., for the Respon-
dent.
Luis Alvarez Colon, for the Charging Party.
DECISION
GEORGE ALEMÁN, Administrative Law Judge. A hearing in
this matter was held on June 21–23 and 29–30, 2000, in Hato
Rey, Puerto Rico, following the filing of unfair labor practice
charges by Union Nacional de Trabajadores de Puerto Rico (the
Union) and Generoso Perez, an individual, and issuance of a
consolidated complaint on November 30, 1999,1 by the Re-
gional Director for Region 24 of the National Labor Relations
Board (the Board). The complaint alleges that the Respondent,
Caribe Ford, violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). The Respondent, in a timely-
filed answer, denies having engaged in any unfair labor prac-
tices.
All parties at the hearing were afforded full opportunity to
call and examine witnesses, to submit oral as well as written
evidence, and to argue orally on the record. On the entire re-

1 All dates herein are in 1999, unless otherwise specified.
cord,2 including my observation of the demeanor of the wit-
nesses, and after considering posthearing briefs filed by the
General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Florida corporation with an office and
place of business in San Juan, Puerto Rico, where it is engaged
in the wholesale and retail sales and servicing of motor vehi-
cles. During the 12-month period preceding issuance of the
complaint, the Respondent, in the normal course of its business
operations, had gross revenues in excess of $500,000 and, dur-
ing the same period, purchased and received at its above place
of business goods and materials valued in excess of $50,000
directly from points located outside the Commonwealth of
Puerto Rico. The complaint alleges, the Respondent admits,
and I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Allegations
Specifically, the complaint alleges that the Respondent vio-
lated Section 8(a)(1) by: creating the impression that its em-
ployees’ union and other concerted activities were being kept
under surveillance; threatening employees with plant closure;
discharge and other unspecified reprisals if they brought in a
union or engaged in union activity; interrogating employees
about their union or concerted activities; soliciting employee
withdrawal of support for the Union; soliciting and remedying
employee grievances, and promising and granting employees
increased benefits and improved terms and conditions of em-
ployment to convince them to refrain from union activity and to
undermine the union movement.
It further alleges that the Respondent violated Section 8(a)(3)
and (1) of the Act by failing and refusing to assign alleged dis-
criminatee Jose DeDiego sufficient work, thereby preventing
him from meeting his assigned mechanic’s quota; issuing him a
disciplinary warning and several disciplinary memoranda, sus-
pending him for 8 days, and subsequently discharging him for
his union activities. Finally, the complaint alleges that the Re-
spondent violated Section 8(a)(3) by discharging alleged dis-
criminatee Generoso Perez because of his activities on behalf
of, and support for, the Union.
B. Factual background
In June 1998, the Respondent began operating its San Juan
dealership facility after acquiring the business, managerial staff,
and employees (including alleged discriminatees DeDiego and
Perez) from its predecessor, Automotores de Puerto Rico. Ro-

2 Reference herein to testimonial evidence will be cited as “Tr.”
(transcript) followed by the page number(s). Exhibits received in evi-
dence will be referred to as either “GCX” for a General Counsel exhibit
or “RX” for a Respondent exhibit, followed by the exhibit number(s).
Finally, reference to arguments made by the parties in their posttrial
briefs will be cited as “GCB” for the General Counsel’s brief, or “RB”
for the Respondent’s brief, followed by the brief page number(s).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1114
lando Falgueras, formerly employed by Automotores as general
sales manager, currently serves as Respondent’s general man-
ager and has general managerial responsibility over five sepa-
rate departments. John (J.P.) Poldruhi, apparently also serves
as a general manager. The record, however, does not reveal his
duties or responsibilities.3 Tito Avendaño, formerly employed
by Automotores as sales manager, currently holds the same
position with the Respondent with supervisory authority over
the sales personnel. Mariano Perez (M. Perez), Automotores’
former parts manager, serves in a similar capacity with the
Respondent with responsibility over parts inventory control and
the parts department personnel. Jose Carrasquillo, Automoto-
res’ former service department manager, holds essentially the
same position with the Respondent, and is responsible for em-
ployees in the service department and all matters relating
thereto. Finally, Jorge Cruz Detres, formerly employed by
Automotores as workshop supervisor, holds the same position
with the Respondent and has direct supervision and control
over the automotive technicians, dispatchers, and workshop in
general.4
1. Generoso Perez
Perez worked for the Respondent from June 1998, until dis-
charged on January 22, 1999. Prior to June 1998, Perez, as
noted, was employed by Automotores and was being super-
vised by Avendaño and Falgueras.5 He testified that after ac-
quiring Automotores, the Respondent made certain operational
changes which caused “uneasiness” among its sales staff of
some 20 salespersons. The changes in question, he explained,
affected the sales staff financially and placed additional pres-
sures on them. Perez further testified, without contradiction,
that 2 weeks before being discharged, e.g., around January 8, he
discussed the employees’ concerns with Teamsters representa-
tive Negron and asked him to come and speak to the salesper-
sons at the Respondent’s facility.6 Negron agreed to talk to the
employees but suggested it might be better to hold the meeting
at his house. Perez agreed and a meeting was set for January
27, at 6:30 p.m. After his discussion with Negron, Perez met
for about 10 minutes at the lot 2 showroom with several em-
ployees from both lots, notified them of the date, time, and
place of the meeting, and gave them Negron’s name, address,
and phone number. Employee Luis Reyes, who was discharged
days after Perez, corroborated Perez’ claim of his union-related
discussion with employees. Thus, he recalled that at one meet-
ing of some four or five salespersons, Perez provided them
information about the Teamsters and informed them of the
upcoming January 27 meeting at Negron’s house. Perez could

3 DeDiego’s reference to Poldruhi as a general manager was not dis-
puted by the Respondent (Tr. 147).
4 Falgueras, Avendaño, Perez, Carrasquillo, and Detres are all admit-
ted supervisors within the meaning of the Act.
5 According to a document received in evidence as RX–2, on April
22, 1998, before the Respondent took over Automotores’ operation,
Perez was given a letter by Falgueras stating he had failed to attend a
meeting of sales employees, and urging him to make more of an effort
to comply with the Respondent’s obligations. Perez, however, testified
that he never saw the letter prior to the hearing.
6 There were two sales lots—lot 1 and lot 2—at Respondent’s facil-
ity. Avendaño was manager over lot 1.
not recall if any of the Respondent’s managers or nonsales
employees were nearby or observed his meeting with the sales-
persons at the lot 2 showroom. He also admitted that no man-
agement official ever discussed or raised his union activities
with him.
Falgueras testified that on or around January 13, 1999 (just
days after Perez met with union representative Negron and held
his employee meeting), he received a phone call from the Re-
spondent’s president, Steve Westphal, directing him, on behalf
of Respondent’s board of directors, to conduct an evaluation of
all sales personnel working at Caribe Ford. There is nothing in
Falgueras’ testimony to suggest that he was ever directed to
terminate any employee following the evaluation. Rather, he
recalled being told only that “if we had to take a measure
against, or in favor of, someone, we should do so.”7 He claims
that any decision to terminate or retain an employee was left up
to him. (Tr. 837.) Following receipt of Westphal’s directive,
Falgueras claims he instructed Avendaño to conduct this re-
view. Avendaño, he contends, then evaluated all the sales staff
and, on January 21, presented him with a list of five salesper-
sons purportedly having the lowest production records, two of
whom were Perez and Reyes, and recommended that both
Perez and Reyes be terminated.
Avendaño’s testimony regarding the evaluation and dis-
charge of Perez is as follows. Sometime in January, Falgueras
called him to his office and told him about Westphal’s directive
to conduct an evaluation of the salespersons. Avendaño claims
Falgueras told him that an evaluation of the salespersons should
be done “to see if the ones that were at a lower echelon, or had
a lower production, would be replaced by us, by salespersons
who we would try to get from other dealers, with high sales
averages.”8 (Tr. 726–727.) Falgueras does not corroborate
Avendaño in this regard for there is no mention in his testimony
of a discussion with Avendaño regarding replacement employ-
ees. Avendaño then asked the accounting department to pro-
vide him with the sales production figures for each salesperson.
Following his conversation with Falgueras, Avendaño asked
the accounting department to provide him with the sales pro-
duction figures for each salesperson. The accounting depart-
ment then purportedly furnished him with the information
which included a chart listing the names of 13 salespersons, and
the number of vehicles or units each sold during the period June
through December 1998 (GCX-7).9 He testified that the chart

7 The Respondent’s assertion on brief (p. 3), that Falgueras received
the directive from Westphal and the board of directors sometime in
December 1998, lacks factual support and, more importantly, is contra-
dicted by Falgueras’ own testimony that he received the call “around
January 13, 1999” (Tr. 843). Avendaño’s testimony, infra, that Fal-
gueras informed him sometime in January about Westphal’s phone call
also appears to contradict the Respondent’s claim that the instructions
from Westphal were received in December 1998.
8 Avendaño’s testimony as to what Falgueras said to him, it should
be noted, is at odds with Falgueras’ testimony that he was only in-
structed by Westphal to conduct a review of the salespersons, and that
Westphal did not discuss the termination of any employee.
9 Avendaño’ testimony as to how and when he received GCX–7 was
somewhat evasive and self-contradictory. Asked, for example, who
prepared the chart, Avendaño replied, “I don’t know, it must’ve been
prepared by. . . the accounting department.” As to when he might have
CARIBE FORD 1115
(GCX-7) prepared for him by the accounting department was
not accurate because the names of other salespersons in the
Respondent’s employ had been omitted, and that, on January
21, he prepared a more accurate report of his own covering the
period from July 1998 through January 1999, and then dis-
carded GCX-7, after using the information contained therein as
a base to prepare his own report.10 (Tr. 773.) Avendaño claims
that in his report, he evaluated each salesperson based on their
total sales for the 7-month period between June 1998-January
1999, and took into account “the average of the utilities, and the
total utilities that those sales represented for the company.”11
He purportedly also took into account whether a particular
salesperson “dedicated a bit more time to the clients,” the price
of the cars sold by the salespersons, and the accessories a sales-
person may have sold with the vehicle. (Tr. 727.) In sum,
Avendaño claims that the overall profit made by the Respon-
dent on the sale of a vehicle, not merely the number of vehicles
sold by the salesperson, was given consideration in his evalua-
tion of the sales staff.
Avendaño claims that on the basis of his report, he con-
cluded that Perez, salespersons Reyes, Salgado, Abraham Ne-
gron (A. Negron), and a fifth unidentified individual, were the
five with the worst production ratings. (Tr. 746.) Of these five,
Reyes, according to Avendaño, had the worst record, leading
him to immediately conclude that Reyes should not be retained.
Avendaño claims he then compared the production records of
Perez and A. Negron in deciding which of the two to recom-
mend for discharge. Both, according to Avendaño, had similar
production records. He then decided to compare their person-
nel files to determine which of the two might be the better em-
ployee.12 Avendaño claims that when he examined Perez’ file,
he found two disciplinary writeups that purportedly had been
issued by Falgueras to Perez on April 22, 1998, while both

received it, Avendaño, in response to questioning by the General Coun-
sel, stated he “must have” gotten it after Perez’ January 22 discharge.
However, in response to my questions, Avendaño stated that the chart
was part of the file generated in connection with the evaluation Fal-
gueras asked him to conduct, and that it had been prepared before, not
after, Perez’ discharge. (Tr. 774, 776.) I am convinced that the chart
was prepared by the accounting department in response to Avendaño’s
request.
10 Avendaño’s report was offered and received into evidence without
objection as RX–17. The Respondent subsequently withdrew RX–17,
presumably in order to provide opposing counsel and the reporter with
the requisite number of copies (Tr. 732–734). It did not, however, prior
to the close of the hearing, furnish the reporter with duplicates as re-
quired by the Board’s rules (see fn. 16, supra), nor did it reintroduce the
document into evidence following its withdrawal. While citing to RX–
17 in its posthearing brief (RB:13–4), the Respondent has made no
posthearing request to have RX–17 reintroduced and made a part of the
record. Accordingly, I give no weight to RX–17 as it was expressly
withdrawn as an exhibit by the Respondent at the hearing.
11 Avendaño admits that based solely on the number of sales by each
salesperson during the period reviewed, Perez had a better production
record than at least three other salespersons. (Tr. 747.)
12 Avendaño’s testimony, that he compared only the personnel files
of Perez and A. Negron to see which of the two he would recommend
for dismissal, contradicts the Respondent’s assertion on brief (p. 13),
that Avendaño also reviewed Salgado’s personnel file to see if it con-
tained any disciplinary writeups.
were still employed by Automotores, and on October 2, 1998.13
He found no similar writeups in A. Negron’s file. Rather, he
contends that A. Negron’s file contained a copy of an e-mail
letter dated March 3, 1998, from a customer praising A. Ne-
gron’s work while the latter was employed by Automotores (Tr.
733–736). His review of the files, Avendaño claims, “tipped
the balance in favor of Negron,” and led him to conclude that
Perez should be terminated along with Reyes. On January 21,
after preparing his report and completing his evaluation, Aven-
daño claims he discussed his findings and recommendations
with Falgueras. Falgueras purportedly agreed with Avendaño’s
recommendation and instructed him to call the two employees
into his office and notify them of their dismissal.
Falgueras agreed that Avendaño came to him on the after-
noon of January 21, with his report and recommendation that
Reyes and Perez be terminated. Falgueras claims that the deci-
sion on how many salespersons were to be terminated was
made by Avendaño. Avendaño, however, offered no explana-
tion as to how he arrived at the number of employees he felt
should be terminated. Falgueras claims he agreed with Aven-
daño’s recommendation, and then directed the accounting de-
partment to prepare the paperwork necessary to effectuate the
discharges. Both Falgueras and Avendaño testified that Perez
and Reyes were notified the next day of their termination. Their
testimony in this regard, however, is disputed by Reyes’ testi-
mony, and by his discharge letter, which reflect that he was not
discharged at the same time as Perez, but rather 5 days later, on
January 26. (Tr. 130; GCX-33.) I credit Reyes and reject as not
credible Falgueras’ and Avendaño’s testimony to contrary.
Perez’ testified as follows regarding the discharge interview.
At around 4:50 p.m. on January 22, Muñoz told him that Re-
spondent’s general manager, Rolando Falgueras Jr. wanted to
see him. On receipt of Muñoz’ message, Perez suspected that
the Respondent might somehow have learned of his union ac-
tivities and was about to fire him. Once inside Falgueras’ of-
fice, Perez met with Falgueras and Avendaño, and was handed
a letter stating that he was being discharged because of his low
production during the past 7 months (GCX–2). Perez ex-
pressed surprise at the letter as he considered his production
numbers to have been satisfactory, and asked Falgueras to pro-
vide him with the true reason for the discharge. He claims that
neither Falgueras nor Avendaño responded to Perez’ inquiry.
Instead, Avendaño simply asked him to turn in his key to the
office. Perez replied that it was already late, and that he would
turn in the key the following day after retrieving his personal
items. The entire meeting lasted some 20 minutes. Perez did in
fact return the next day to collect his belongings and turn in his
key.
Falgueras denies that the reasons for the discharge were not
explained to Perez. Rather, he claims that when Perez ques-
tioned him about the letter, he told Perez that the Respondent
had been having problems with Perez “relating to production,

13 See RX-1. The writeup charged Perez with having a defensive
and aggressive attitude towards his coworkers and customers, and
failing to meet his sales quota of 12 vehicles per month. Perez denied
having ever received the October 2, 1998 warning which is RX-1 (Tr.
88).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1116
and the continuous problem that we had related to attitude
against clients and fellow workers.” (Tr. 808.) Falgueras’
claim in this regard was not corroborated by Avendaño. Thus,
while the latter recalled Perez questioning Falgueras on why he
was being discharged, Avendaño in his testimony makes no
mention of Falgueras providing Perez with any further explana-
tion for the discharge other than what was stated in the dis-
charge letter. I credit Perez and find that Falgueras did not
mention anything about the discharge having been based in part
on an alleged poor attitude or the warnings presumably found
in his file by Avendaño.
2. Jose DeDiego
DeDiego worked as an automotive technician with the Re-
spondent, as he had done with Automotores, from June 1998,
until discharged on September 3, 1999. The record reflects that
in late February, Poldruhi implemented a production quota for
all automotive technicians. Thus, by memo dated March 2, the
Respondent notified all technicians that as discussed during a
February 25 meeting, technicians would have to complete a
minimum of 25 production hours per week, and that employees
who failed to do so would receive a written warning informing
them of their low production (RX-8).14 On March 8, DeDiego
received such a warning from Poldruhi. On receipt of the
warning, DeDiego claims he met with Poldruhi and Shop Su-
pervisor Detres to explain why he had not met his production
quota, at which time he declined to sign the letter to indicate he
had received it. At some point during this meeting, Poldruhi,
according to DeDiego, instructed him in front of other co-
workers to pick up his toolbox and leave, at which time
DeDiego signed the letter. Poldruhi did not testify, and Detres,
while called as a witness, did not specifically recall discussing
the March 8 memo with DeDiego, and testified only that such
memos were often discussed with employees.
On March 18, DeDiego and other employees engaged in a
work slowdown to protest Respondent’s failure to pay them the
monthly incentive check that was due them on March 15. He
recalls that during the slowdown, Detres and other managers
instructed them to leave the work area if they did not plan to
continue working. He contends that employees nevertheless
stuck together and continued the slowdown, but that tempers
remained fairly high among employees. DeDiego claims that at
one point, he phoned his uncle, Oscar Ortiz, a union organizer,
for advice, and was told that employees should remain in the
work area.15 Following his phone conversation with Ortiz,
DeDiego returned to the employees and urged them to remain
calm. Employees eventually received their incentive pay
around noon that same day, along with a letter signed by Fal-
gueras expressing Respondent’s surprise at the work slowdown
and admonishing them against further similar job actions

14 Employees unable to meet the 25-hour-per-week production quota
due to illness or because of vacation time would not be issued written
notices (Tr. 420).
15 Contrary to the Respondent’s suggestion at the hearing (Tr. 308–
309), DeDiego’s denial on cross-examination, that he spoke to Ortiz
about an incident involving a Ford Explorer, is not inconsistent with his
testimony on direct examination that his discussion with Ortiz involved
the work slowdown. (Tr. 143.)
(Tr.153).16
On receiving the letter, DeDiego told employees he was go-
ing to the Union to discuss the events of the day. He testified,
without contradiction, that some of his coworkers agreed to
accompany him to the Union’s office and followed him in their
cars. On arriving, DeDiego, and between 16 and 22 other em-
ployees who showed up, met with union officials Manuel and
Oscar Ortiz. At this meeting, employees signed union authori-
zation cards on behalf of the Union. DeDiego and others also
received blank authorization cards for distribution to other em-
ployees at Respondent’s facility. DeDiego testified, again
without contradiction, to having solicited cards from other em-
ployees and returning them, along with the cards solicited by
other employees, to the Union.
Carrasquillo testified that he learned from employees Carlos
Perez and Eric Lugo that employees in the service department
were becoming interested in organizing themselves and that
DeDiego appeared to be the one behind the movement. It ap-
pears that Carrasquillo then passed on this information to Fal-
gueras, for the latter testified that he learned of the union activ-
ity from Carrasquillo sometime in March. According to Fal-
gueras, he told Carrasquillo that employees were fully within
their rights to organize provided they did not campaign during
working hours because that would interfere with production.
On March 24, the Union filed a petition with the Board seek-
ing to represent all of the Respondent’s auto mechanics and
auto parts dispatchers (GCX-9). On or about the same date,
DeDiego was talking to employee Carlos Perez about the union
and/or signing a union card. Some 10 minutes later, Detres
approached DeDiego and instructed him to go to Falgueras’
office. DeDiego then went to Falgueras’ office where Fal-
gueras, Detres, Carrasquillo, and Poldruhi were all present.
According to DeDiego, Falgueras began the meeting by telling
him, “You’re the one who’s trying to bring the Union in here.”
DeDiego told Falgueras he felt uncomfortable discussing the
matter in the presence of Carrasquillo and Detres. Falgueras
then instructed both to leave the room, at which time DeDiego
admitted responsibility for bringing in the Union, explaining he
did so because he wanted to know what rights he and other
workers had. Falgueras replied that he had been trying to as-
certain since the March 18 work stoppage, who had been stir-
ring up his employees, and further remarked that he could not
allow a union to come in because he would lose the opportunity
given to him by the “North Americans,” referring to Respon-
dent’s corporate owners. Falgueras, according to DeDiego,
further stated that if the Union were brought in, the Respondent
would close down the business. DeDiego responded that he
and other employees had rights under the law, and that “if we
wanted to have someone represent us, the law would guarantee
those rights to us.” Falgueras went on to mention that if he,
Falgueras, did not feel comfortable at a particular place, “he
would just leave.” DeDiego replied that he had felt the same
way when Poldruhi gave him the earlier warning. Falgueras
then asked DeDiego to talk to the union leaders and ask them to
end their efforts to bring the Union in, and that if Poldruhi was

16 Falgueras’ comment to employees about not engaging in any fur-
ther job actions is not alleged as a violation of the Act.
CARIBE FORD 1117
the problem, he would fire Poldruhi. Falgueras added that he
“did not want anyone from the outside” telling him how to run
his business, and that he was going to speak to other employees
in an effort to resolve whatever complaints they had. Finally,
Falgueras gave DeDiego until 1p.m. the following day to report
to him that the unionization efforts had been halted.
Detres, who testified at the hearing, was not asked to confirm
or deny DeDiego’s account that he directed DeDiego to go to
Falgueras’ office, or that he was in attendance at the meeting
between Falgueras and DeDiego. Carrasquillo, also a witness
in this proceeding, was similarly not questioned about this al-
leged meeting. Poldruhi, as noted, did not testify and, while
Falgueras did testify, he did not expressly deny that such a
meeting with DeDiego took place. Rather, he testified only that
he never meets individually with employees, and that all his
employee meetings occur in group sessions, never alone. (Tr.
802.)
I credit DeDiego and find that such a meeting took place,
and that Falgueras made the comments attributed to him by
DeDiego. In so doing, I rely not only on DeDiego’s sound
demeanor as a witness and his detailed explanation of the meet-
ing, but also on the fact that, except for Falgueras’ general as-
sertion that he never meets individually with employees,
DeDiego’s claim went unchallenged. The Respondent could
have, but did not, elicit any denial from either Detres or Carras-
quillo that such a meeting was held. Nor did the Respondent
call Poldruhi who, according to DeDiego, was present at the
meeting and presumably heard the remarks Falgueras allegedly
made to DeDiego, to deny that such remarks were made or that
he attended any such a meeting. The Respondent’s failure to
question Detres or Carrasquillo regarding this meeting, or to
call Poldruhi to confirm or deny DeDiego’s account, warrants
an adverse inference that had Detres and Carrasquillo been
asked, they would not have denied that such a meeting was
held, or that had Poldruhi been called, his testimony would not
have been favorable to the Respondent. A-1 Portable Toilet
Services, 321 NLRB 800, 803 (1996); Casa San Miguel, Inc.,
320 NLRB 534 (1995); Northway Nursing Home, 243 NLRB
544 (1979).
After his meeting with Falgueras, DeDiego returned to work
and, at the end of the day, notified the Union of Falgueras’
remarks. DeDiego claims that the next day, Falgueras, together
with Carrasquillo, met with all the automotive technicians. At
this meeting, Falgueras told employees that the Respondent
intended to build a new facility across the street from the cur-
rent one, and possibly another one in Fajardo, Puerto Rico, and
that employees who remained could expect to have a good
future with the Company. DeDiego recalls Falgueras also tell-
ing employees that he knew of the Union’s organizational
drive, that employees had signed authorization cards, and
which employees had been part of the union movement. Fal-
gueras further told employees that he had met with DeDiego
the day before.
According to DeDiego, he asked Falgueras for permission to
speak to employees after Falgueras had finished, explaining
that he did so because he feared employees might assume from
Falgueras’ reference to their meeting the day before that
DeDiego had disclosed to Falgueras which employees had
signed union cards. Allowed to do so, DeDiego proceeded to
tell employees that he had in fact met with Falgueras the day
before and had informed him his own involvement with the
Union. He assured employees, however, that he had not dis-
closed to Falgueras the names of any other employees who had
signed cards. He also told employees that he had mentioned to
Falgueras some of the concerns they were having, including the
fact that employees were being asked to take unpaid vacations,
and that they were not being credited with the proper amount of
seniority when requesting employment certification letters from
the Respondent.
DeDiego further recalls that at this meeting, Falgueras
agreed to correct some of the employee concerns, which in-
cluded providing them with paid vacation time, and reschedul-
ing employee start time to accommodate their need to avoid
traffic problems. DeDiego further recalls that at one point dur-
ing the meeting, Carrasquillo asked employees to forgive him,
that he was going to change, but that they should not allow a
union in because unions, in his view, did not resolve anything.
According to DeDiego, the changes promised by Falgueras, as
well as others, were subsequently implemented by the Respon-
dent (Tr. 233.)
Falgueras recalls meeting with employees sometime in late
March, presumably the same one testified to by DeDiego. The
purpose of the meeting, he claims, was to determine whether
there was a need to purchase additional tools for the shop. He
did, however, recall telling employees at this meeting that if
they wished to engage in an organizational campaign, they
should do so during nonworking hours, but that a union would
result in additional costs to them. Asked what prompted him to
make the remark, Falgueras explained that he was simply re-
sponding to a discussion that was taking place at the time
among employees regarding union quotas or dues. As to the
restriction imposed on employees at this meeting regarding
union activity during working hours, Falgueras explained that
this policy applied only to group discussions of union matters
by employees during working hours, and did not apply to one-
on-one conversations between employees who wished to en-
gage in union talk. (Tr. 840–842.)
Carrasquillo was not asked about this March meeting, but
testified generally to having attended various production-
related meetings held by Falgueras in 1999. His testimony
about being in attendance at Falgueras’ meetings in 1999, and
DeDiego’s specific assertion that Carrasquillo was present at
the March meeting, convinces me that Carrasquillo did indeed
attend this late March meeting. Although Carrasquillo recalls
Falgueras mentioning to him that employees had the right to
organize themselves and to engage in union activity, he did not
state that it occurred at the March meeting.
DeDiego testified that following this March meeting, several
employees feared retaliation and asked to have their authoriza-
tion cards returned to them. One employee, DeDiego claims,
went so far as to threaten to shoot DeDiego if he (the em-
ployee) was terminated. (Tr. 177.) On March 30, the Union
responded to the Respondent’s attempts to dissuade employees
from supporting it by circulating, through DeDiego, a memo to
employees cautioning them against the Company’s “divide and
conquer” strategy, and urging them to be wary of Respondent’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1118
tricks. (GCX–13.) DeDiego testified, credibly and without
contradiction, that he distributed the flyer at the Company park-
ing lot on his free time. DeDiego recalls that on returning to
work after his distribution activities, he was met by Carras-
quillo who instructed him to go to Falgueras’ office. He testi-
fied that when he got to Falgueras’ office, Falgueras handed
him one of the leaflets and asked if he had been distributing
them. DeDiego told him he was, and that he had been advised
by the Union to distribute the literature on his own free time.
Falgueras, according to DeDiego, then threatened to fire him if
he handed out the literature again. (Tr. 194.) DeDiego, how-
ever, ignored Falgueras’ instructions and continued with his
distribution activities.
Falgueras generally denied engaging in any discussion about
the distribution of literature with employees, or having seen
anyone engaging in distribution activity at the facility. He did
recall Carrasquillo bringing him a union flyer one day and tell-
ing him that the flyer had been left in the Respondent’s cafete-
ria after working hours. Carrasquillo was not asked about this
incident, leaving undisputed DeDiego’s claim that he was di-
rected by Carrasquillo to Falgueras’ office after completing his
distribution activities on his lunchbreak. I credit DeDiego’s
claim that soon after he finished distributing union literature
during his lunchbreak, Carrasquillo directed him to Falgueras’
office and that, once there, Falgueras questioned him about his
leafleting activities and threatened to fire DeDiego if he did not
cease his distribution activity. While the record does not spec-
ify if Carrasquillo or anyone else from management in fact saw
DeDiego distributing union literature, it is reasonable to infer
from Carrasquillo’s conduct in directing DeDiego to Falgueras’
office soon after DeDiego completed his activity, and from
Falgueras’ threat to discharge DeDiego for such activities, that
Carrasquillo did indeed observe DeDiego engaging in such
activity during his lunchbreak and reported the matter to Fal-
gueras.
On March 31, an incident occurred involving a Ford Ex-
plorer vehicle DeDiego had been assigned to repair some 3
weeks earlier, on March 8. Thus, on March 8, DeDiego re-
ceived a work order from dispatcher Alfonso Reyes to replace a
leaking windshield washer reservoir on a 1999 white Ford Ex-
plorer owned by Noemi Valentin. The work order, received in
evidence as General Counsel Exhibit 15, reflects that Valentin
purchased the vehicle in February 1999. DeDiego explained
that in making the repair, he followed the normal company
procedure of taking the job order to the parts department to
obtain a replacement reservoir for the vehicle. The parts de-
partment employee, DeDiego further explained, in turn pre-
pared a receipt for, and handed him, the replacement part which
he then installed in the vehicle.17 He testified that after install-

17 DeDiego testified that the part he installed was in fact not a new
replacement part but instead one which had been cannibalized from a
Ford Bronco damaged when Hurricane Georges struck the island, and
whose parts the Respondent was using as replacements in other vehi-
cles (Tr. 202). His testimony in this regard is corroborated by Respon-
dent’s own document, RX–11, a computer printout used by Respon-
dent’s parts department to keep track of reservoir assemblies used in
repairs. Thus, RX–11 shows that a “-1” notation was made on March
8, the date the Ford Explorer was brought in for repair. Such a nota-
ing the new part, he took the damaged reservoir to dispatcher
Eddie Sanchez, who stamped the back of his work order with
the words “scrap parts” to identify the damaged part removed
from the vehicle as “scrap,” and closed the job order to reflect it
had been completed. DeDiego’s testimony in this regard is
unrefuted. Sanchez did not testify.
Regarding the storage of used or replaced parts, M. Perez
testified that when such parts are removed from a vehicle, they
are labeled or marked for identification and kept for 2 or 3 days
in a separate storage area, after which they are stored in a ware-
house for 3 months in the event a question arises regarding the
warranty coverage, or in case Ford Motor Company wants to
confirm the part as being damaged. He explained that once a
claim is paid under the warranty, the part is discarded. (Tr.
689–690.)
Detres also provided testimony regarding the storage and
disposition of used or replaced parts which differs in some
respects from M. Perez testimony on the subject. He explained
that once a part is removed from a vehicle, it is stored in a
“scrap” storage area within the parts department, where it re-
mains for 1 or 2 days at most, after which the “scrapped” part is
relocated by a parts department employee to a separate ware-
house located outside the service department where it remains
until picked up by a Ford Motor Company representative. He
further explained that when the Respondent replaces, pays for,
and receives reimbursement from Ford Motor Company for a
warranted part, it retains the “scrapped” part for 30 days, during
which period Ford could, “at any moment”, show up to reclaim
the part. Further, he testified that while the Respondent does
not maintain a record of what parts Ford has taken from the
“scrap” warehouse, Ford does record what it has taken on “ser-
vice sheets” it obtains from Respondent’s service department.
He claims that the absence of those sheets would indicate that a
part has been picked up by Ford, and that the presence of such
sheets would suggest the contrary. (Tr.448–449, 461–462.)
According to Detres, the storage and warehouse area where the
scrap parts are stored is secured and that only two parts depart-
ment employees have access to said facility. DeDiego, by con-
trast, testified that scrapped parts are kept outside the parts
department in an unsecured area readily accessible to other
personnel. (Tr. 222–223.)
On March 31, the owner of the Ford Explorer brought the
vehicle back to the shop complaining that the windshield
washer fluid reservoir was leaking. Testimony regarding what
occurred next was provided by Carrasquillo, Detres, DeDiego,
and employee Wilfredo Vasquez, an automotive technician.
Carrasquillo claims that on receiving the complaint from the
customer, he asked Detres to inspect the vehicle to see what the
problem was, and that Detres in fact did so.
Detres testified that he inspected the vehicle, as requested,
observed that the reservoir was empty, and that when he filled
it with water, it all drained out. He claims he reviewed the
March 8 work order and learned that DeDiego had been as-
signed the task of replacing the reservoir, and that the docu-

tion, as Detres stated on direct examination, means that a needed part is
not in stock and is being acquired from another vehicle for use in the
vehicle needing the repair. (Tr. 444.)
CARIBE FORD 1119
ments showed that DeDiego received a replacement part from
the parts department and that a replaced “scrapped” part had
been turned over to the parts department. (Tr. 519.) He then
purportedly asked M. Perez to check the “scrap” storage area to
see if the old part was still there.18 Detres further claims that on
visually inspecting the vehicle, he observed that the reservoir
did not have a sticker containing the part number, which he
avers is always found on new replacement parts,19 and that the
bolts holding the reservoir in place did not appear to have any
scratch marks on them, suggesting to him that the part which
should have been changed on March 8, was not. He testified
that had the original part been removed from the vehicle, as
shown on the work order, the bolts would have contained some
scratch marks left there by the ratchet and socket used by the
mechanic, in this case DeDiego, to remove them.20
Detres claims he then asked three or four other mechanics,
one of whom I find to have been Vasquez, to inspect the vehi-
cle to see if the part had indeed been changed.21 Of those me-
chanics asked by Detres to inspect the vehicle, Vasquez was the
only one called to testify. He testified that on inspecting the
vehicle, he noticed that the washer reservoir was clean and
white. He claims he then asked Detres if he had checked the
“scrapped parts” department to see if the old part was there, and

18 M. Perez was not questioned about this incident nor asked if he
had been directed by Detres to look for the part in the “scrap” storage
area.
19 Detres testified that all parts contain some kind of marking on it.
Thus, a factory-installed part which comes with the vehicle will contain
a different marking, such as a number stamped on it, while a replace-
ment part, e.g., one maintained by the parts department, will typically
have a sticker. Detres, however, did not explain if the reservoir he saw
on the vehicle on March 31, contained a factory-installed marking.
There is in this regard no evidence to suggest that Detres removed the
reservoir from the vehicle to see if it contained a sticker on some other
unseen portion of the reservoir, or to ascertain if had some marking
identifying it as a factory-installed item.
20 A photo taken by Detres of the vehicle’s washer reservoir, offered
to corroborate Detres’ claim that the bolts on the reservoir contained no
scratch marks, was received into evidence as RX-10. The Respondent
subsequently withdrew the photo for the purpose of providing the re-
porter with duplicates as required by Sec. 102.38 of the Board’s Rules
and Regulations (Tr. 435). The Respondent, however, apparently did
not return the photo or duplicates to the reporter prior to the close of the
hearing, for the photo has not been included with the record provided to
me. Its omission from the record has no prejudicial effect on either
party to this proceeding, for Detres’ own conflicting testimony regard-
ing the photo renders it of no probative value to the issue at hand.
Thus, while he claimed on direct examination that a viewing of the
photo confirmed that the bolts on the reservoir contained no scratch
marks, on cross-examination, Detres admitted that no such conclusion
was possible simply from looking at the photo. (Tr. 433, 541.) The
photo therefore is of no help in deciding whether or not the reservoir
was removed.
21 Detres could not recall if Wilfredo Vasquez was among the group
of mechanics he asked to check out the Explorer. Carrasquillo identi-
fied employees Eric Lugo and Luis Pensa as two of the individuals who
inspected the vehicle, but claims he never asked Vasquez to do so, and
believes Detres likewise did not ask Vasquez to look over the vehicle.
Vasquez, however, testified that he in fact was asked by Detres to in-
spect the Explorer. I credit Vasquez in this regard and find he indeed
was asked by Detres to conduct a visual inspection of the vehicle.
that Detres told him he had done so but that the replaced part
could not be found. Vasquez then questioned how Detres could
prove the reservoir had not been changed, and reminded him
that there were times when new parts came in defective, sug-
gesting the possibility the replacement part installed on the
vehicle by the mechanic in question might also have been de-
fective to begin with.22
Despite what Vasquez may have told him, Detres neverthe-
less concluded from the lack of an identifying sticker on the
reservoir then on the vehicle, the apparent lack of scratch marks
on the bolts holding the reservoir in place, and the fact that the
replaced “scrap” part could not be found in the “scrap” storage
area, that DeDiego had not changed the part on the Ford Ex-
plorer on March 8. Detres then took photos of the vehicle and
asked DeDiego to go to his office.
DeDiego’s recollection of the incident is that on returning to
work from lunch on March 31, he noticed several co-workers
standing around the Ford Explorer, and after clocking in was
told by Carrasquillo to go to the vehicle. When he got to the
vehicle, he saw its owner standing nearby and Detres taking
photos. Carrasquillo informed him that company records
showed the Ford Explorer had been assigned to DeDiego for
repair on March 8. He recalls that at some point, Detres asked
Vasquez to inspect the car to verify if the part had, in fact, been
replaced. DeDiego claims that after Vasquez inspected the
vehicle, Carrasquillo told DeDiego he wanted to see him in his
office. DeDiego requested and was allowed to have Vasquez
serve as a witness at this meeting. (Tr. 219.)
DeDiego recalls that at this meeting attended by Carras-
quillo, Detres, and Vasquez, Carrasquillo accused him of not
repairing the Ford Explorer on March 8, of stealing the re-
placement part, and of committing fraud. DeDiego denied the
accusation, and pointed out to Carrasquillo and Detres that the
work order reflected that the part had been replaced, and that
the old part had been turned over to the parts department for
storage as scrap. According to DeDiego, after confirming that
the work order contained such a notation, M. Perez was sum-
moned and asked to search the scrap storage area for the dis-
carded reservoir. After M. Perez’ departure, DeDiego com-
mented aloud that the accusation being lodged against him was
simply part of the Company’s efforts to persecute him for try-
ing to bring in the Union, to which Carrasquillo responded that
the mere fact that DeDiego had tried to bring the Union in was

22 Vasquez apparently did not yet know that DeDiego had been the
mechanic on the car. None of the other mechanics who, along with
Vasquez, purportedly inspected the vehicle at Detres’ request were
called to testify. Nor were sworn statements taken from them regarding
this incident. Carrasquillo nevertheless testified that when asked their
opinion on whether or not the washer reservoir on the Ford Explorer
had been replaced, the other mechanics simply responded that they “did
not believe so.” I reject as not credible Carrasquillo’s testimony in this
regard. In so doing, I note that Detres, who was responsible for con-
ducting the investigation and who, by Carrasquillo’s own admission,
was the one who purportedly asked the mechanics to inspect the vehi-
cle, never testified to having received any such report from the mechan-
ics. However, even if Carrasquillo’s assertion as to what these mechan-
ics may have said to him was accepted as true, the somewhat ambigu-
ous nature of their opinion does not establish that DeDiego did not
change the reservoir on March 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1120
enough reason for the Company to fire him. (Tr. 227.) When
M. Perez did not return to the office, DeDiego was directed to
return to work.
While there are minor discrepancies between DeDiego’s and
Vasquez’ description of that meeting, in most material respects
Vazquez corroborated DeDiego’s account. Vasquez, for exam-
ple, recalled that it was M. Perez who accused DeDiego of
stealing the replacement part, and that Carrasquillo expressed
agreement with M. Perez’ accusation by stating, “that’s what
happened, he stole it.” Vasquez, however, recalled hearing
DeDiego complain that the Respondent was looking for a way
to fire him, and Carrasquillo responding that he was tired of
DeDiego, and that the “mere fact that he (DeDiego) had “joined
the union” was reason enough to suspend him.
Detres testified that after inspecting the vehicle, he called
DeDiego to a meeting, attended also by Carrasquillo, and told
DeDiego that while the service sheet showed the damaged res-
ervoir on the Ford Explorer had been replaced, he (Detres) was
of the opinion that the work had not been done. DeDiego, ac-
cording to Detres, stated that he had replaced the damaged part
on the vehicle, and that the Company was attempting to build a
file against him and trying to “screw” him up. On cross-
examination, Detres added that DeDiego also told him and the
other managers that they could do whatever they wanted to
him. Detres denied that DeDiego was ever threatened during
the meeting, and testified that nothing much happened after this
brief conversation, and that DeDiego “continued working at the
workshop as usual.” (Tr. 456–457, 524.)
Carrasquillo’s testimony regarding the meeting was very
limited. Thus, he testified that after Detres inspected the vehi-
cle and concluded that the part had not been changed, he and
Detres informed DeDiego of their findings, and that DeDiego,
in response, simply asked, “What is it that you’re going to do
with me?” According to Carrasquillo, he and Detres informed
DeDiego they would decide what to do later. Carrasquillo de-
nied that DeDiego was ever threatened by anyone at the meet-
ing, or that profanity was used against him. (Tr. 614.)
M. Perez likewise provided little testimony regarding the
meeting. He recalled, for example, DeDiego being accused of
committing fraud in connection with the March 8 repair to the
Ford Explorer, but did not identify the accuser, and recalls
DeDiego responding that the Company was trying to “screw”
him. He denied, however, hearing DeDiego state that he was
being persecuted for his union activities, and claims that the
union was never mentioned at the meeting. (Tr. 695.)
DeDiego claims that following the meeting, as he was on
way to his work station, he noticed Falgueras driving a blue
vehicle (Explorer). According to DeDiego, when Falgueras
saw him, he, Falgueras, while looking at DeDiego, ran his
thumb across his throat, in a “throat-cutting” motion. DeDiego
claims that following the March incident, his work assignments
were reduced, affecting his productivity and, ultimately, reduc-
ing his ability to earn monthly incentives.
On April 20, a Board-conducted election was held which the
Union lost by a vote of 33 to 7.23 DeDiego testified that fol-
lowing the election, the Respondent held a party for employees
and supervisors at one of its offices to celebrate its victory.
Although he did not attend, DeDiego claims he could overhear
employees repeatedly chanting, “Roly, Roly, Roly . . . ,” in an
apparent display of support for Respondent’s general manager,
Rolando (Roly) Falgueras.
DeDiego also testified to an incident that occurred on April
26. Around 10:30 a.m. that day, as he headed from his service
area to the lot across the street to pick up a job order, M. Perez
approached him, angrily accused him of pouring brake fluid on
his newly purchased van, and threatened to physically harm
him. DeDiego claims he asked M. Perez for an explanation of
what he meant, but that M. Perez simply continued talking and
directing obscenities at him. Soon thereafter, DeDiego was
approached by an angry Carrasquillo who directed him to go
the office. DeDiego claims that when Carrasquillo opened the
office door for him to enter, he, DeDiego, said he would not go
in without a witness. Carrasquillo, however, purportedly re-
plied, “What the f—k are you talking about, a witness? Forget
about this witness. We’re already fed up with you, what we
have to do is fire the hell out of you.” (Tr. 255.) DeDiego re-
calls that a short while later, employee Lugo was passing by
and that Carrasquillo then told DeDiego that Lugo would serve
as his witness.24 When he entered the office, DeDiego noticed
Detres was already there sitting behind a desk.
Once inside, DeDiego claims he told those present that he
was simply there to work, and that his efforts to bring in the
Union had been a clean one and that he had not been disre-
spectful to anyone. Soon thereafter, according to DeDiego, M.
Perez, accompanied by one Nancy Martinez, showed up with a
bottle of brake fluid in hand and again accused DeDiego of
pouring the fluid on his van. He also recalls that M. Perez, at
one point, started coming at him stating, “[T]his is shit, just like
you are,” and that Carrasquillo had to intervene and escort M.
Perez and Martinez outside the office. DeDiego then remarked
to Carrasquillo, “Now they also want to hit me,” and asked
Carrasquillo if they had any evidence to prove he was responsi-
ble for the alleged damage. He further told Carrasquillo, “Well,
just go ahead and call the police. And if you want to fire me,
well, fire me.” (Tr. 256.) DeDiego, however, was instructed to
return to work. DeDiego testified that, to his knowledge, the
incident was never reported to the police, nor were criminal
charges ever brought against him for this alleged incident. Nor
was he asked to pay for any of the alleged damage caused to M.
Perez’ vehicle. However, the following day, April 27, DeDiego
was suspended without pay for 8 days, in part, for this alleged
incident.
M. Perez also testified regarding this incident. His version is
that at around 8 a.m. on April 26, he parked his van in a parking

23 Detres admitting knowing prior to the Board’s April 20 election,
from comments made by employees and managers alike, including
possibly Carrasquillo and/or Falgueras, that DeDiego was a leader in
the union movement (Tr. 512–513).
24 DeDiego described Lugo as Falgueras’ personal mechanic who
opposed the Union.
CARIBE FORD 1121
spot located just outside DeDiego’s work area in the service
department. Approximately 1 or 2 hours later, he took Carras-
quillo and Detres to see his van and, while doing so, overheard
DeDiego singing in the shop. He was unable to say for sure,
however, if there were other employees in the shop besides
DeDiego. After showing Carrasquillo and Detres his new van,
and presumably after the latter two had left to their respective
offices, M. Perez claims he went into the shop to get his car
keys for the purpose of retrieving some items from his vehicle,
and returned some 3 or 4 minutes later. M. Perez testified that
when he got to his vehicle, he noticed paint and liquid dripping
down one of the van’s rear windows, and on the cyclone fence
right behind the vehicle. On close inspection, M. Perez deter-
mined that the liquid was brake fluid. He testified that as he
turned to go back into the shop, he ran into DeDiego. He then
confronted DeDiego and accused him of pouring the brake fluid
on his van and staining it. According to M. Perez, his assump-
tion that DeDiego was the guilty party was based on the fact
that he had overheard DeDiego singing in the shop moments
earlier. M. Perez claims that on confronting DeDiego, the latter
admitted responsibility by stating, “Yes, so what? What are
you going to do about it?”
M. Perez further testified that after confronting DeDiego, he
went into the shop and found an opened bottle of brake fluid
next to DeDiego’s toolbox. He claims he then took the brake
fluid bottle, went to Carrasquillo’s office, showed the latter and
Detres, who was also present, the brake bottle, told them of the
damage to his vehicle, and that he had found the bottle near
DeDiego’s toolbox.25 M. Perez does not contend that DeDiego
was in attendance when he reported the incident to Carrasquillo
and Detres. He did, however, testify that this meeting with the
latter two managers was the one and only time he ever met with
Carrasquillo and Detres over this incident (Tr. 687).26 M. Perez
claims he next went to Falgueras to report the incident, showed
him the brake fluid bottle, and repeated what he had told
Carrasquillo and Detres. Falgueras, according to M. Perez,
assured him he would look into the matter and would let him
know what, if any, action would be taken. While Falgueras
testified at the hearing, he was never asked to confirm or deny
meeting with M. Perez regarding this incident. M. Perez claims
he then took photos of the alleged damage and some 20–30
minutes later drove the van to a body repair shop for an esti-
mate and to have it repaired.27 He admits he never bothered to

25 The Respondent’s assertion on brief (p. 10), that M. Perez first
found the opened brake bottle in DeDiego’s work area and then con-
fronted DeDiego, does not square with M. Perez’ testimony which, as
discussed, reflects that the latter first accused DeDiego and then mo-
ments later allegedly found the brake fluid bottle.
26 Carrasquillo and DeDiego, however, both testified that M. Perez
did attend a subsequent meeting at which Detres was also in attendance,
during which M. Perez in a somewhat belligerent manner, accused
DeDiego of throwing brake fluid on his vehicle. Carrasquillo’s and
DeDiego’s mutually corroborated testimony is credited over M. Perez’
implicit denial that he met with Carrasquillo just one time to report the
incident to him.
27 The photos were received in evidence as RX–15(a–d), and, like
RX–10, withdrawn by the Respondent for duplication purposes. (Tr.
684.) As with RX–10, the Respondent failed to return the photos or
copies thereof to the reporter prior to the close of the hearing. RX–15
wipe the oil clean from the vehicle before taking it to the body
shop, but claims it would not have helped because the brake
fluid had already damaged the paint on the van.
Detres was also questioned about this incident and testified
as follows. Early in the morning of April 26, M. Perez drove
his van into the shop to show it to others. Detres, however,
informed him the van could not stay inside the shop and would
have to be left outside. (Tr. 547.) A short while later, around
9–10 a.m., M. Perez took him to see his new vehicle. Like M.
Perez, Detres also recalls hearing DeDiego singing in the shop.
Detres testified that some 20 minutes later after he returned to
the shop, M. Perez came to him and complained that brake fluid
had been thrown on his new van damaging the paint, and that
he had found a bottle of brake fluid on DeDiego’s table. Detres
recalls that when he went to inspect the damage, the van was
being washed in an effort to remove the oil. His testimony in
this regard is at odds with M. Perez’ version. Thus, M. Perez
makes no mention in his testimony of having had the van
washed at any time during this incident. In fact, M. Perez, as
noted, testified that he made no effort to wipe the brake fluid
off the vehicle because the damage had already been done, and
that he instead took the van to a body shop to have the damage
assessed and repaired.
Detres, by his account, did not investigate the incident him-
self nor did he participate in any investigation with others.
Rather, he testified that any such investigation was conducted
by Carrasquillo (Tr. 549). He did, however, admit there were
no eye witnesses to the incident, and that management simply
assumed that DeDiego was the responsible party because
DeDiego was at work and physically present in the shop that
morning, because his workstation was closest to where M.
Perez’ van had been parked, and because three bottles of brake
fluid, one of which was opened, were found on DeDiego’s
work station. (Tr. 543–544.) He also acknowledged, however,
that similar bottles of brake fluid were found in the work areas
of other technicians. M. Perez, it should be noted, made no
mention in his testimony of having seen three bottles of brake
fluid at DeDiego’s work station, or of noticing similar bottles at
other employee work stations.
Carrasquillo testified as follows regarding this incident. He
testified that on the morning of April 26, he and Detres were
looking at M. Perez’ new van, and overheard DeDiego singing
aloud in the shop nearby. About one-half hour later, after re-
turning to his duties, M. Perez reported to him that someone
had thrown brake fluid on the rear portion of his van. Carras-
quillo makes no mention in his testimony of Detres being pre-
sent when M Perez first reported the incident to him, placing
his version of this meeting at odds with M. Perez’ assertion that
Carrasquillo and Detres were both present at this meeting. In
fact, it would appear from Carrasquillo’s testimony that Detres
may not have been present when M. Perez first made his report

is of no probative value to issue for which they were submitted, e.g.,
whether DeDiego was responsible for the damage caused to M. Perez’
vehicle. Thus, the photos revealed only what DeDiego’s work area
looked like, and where M. Perez had parked his vehicle. Consequently,
the absence of these exhibits from the record, resulting apparently from
the Respondent’s own neglect, has no prejudicial effect on either party.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1122
to Carrasquillo, for Carrasquillo claims that after receiving the
report from M. Perez, he, Carrasquillo, went to inform Detres
of the incident. Carrasquillo further expressed the belief that,
after reporting the incident to him, M. Perez reported the matter
to Falgueras.28
Carrasquillo further explained that on arriving at Detres’ of-
fice, he and Detres summoned DeDiego to the office to discuss
the incident. Once at the office, DeDiego denied responsibility
for the damage done to M. Perez’ vehicle, and asked Carras-
quillo what they were trying to do to him and whether anyone
had seen him commit the alleged act. Carrasquillo did not re-
spond to DeDiego because they were still waiting for M. Perez
to return to the office. He does recall, however, that M. Perez
arrived 5 minutes later with the bottle of brake fluid in hand
and began accusing DeDiego of damaging his vehicle.29
Carrasquillo recalls M. Perez telling DeDiego, “[Y]ou’ve
messed up my van; and you know you were the one.” DeDiego
purportedly replied, “Well, go ahead, do what you have to do.”
At one point during the meeting, M Perez became indignant
over the whole incident and, according to Carrasquillo, he and
Detres had to intervene to “control the situation so it would not
get out of hand.” (Tr. 620.) He then purportedly informed
DeDiego that the matter would be investigated and that a deci-
sion would later be made to decide if DeDiego should be disci-
plined for the incident. Carrasquillo claims he and M. Perez
then conducted an investigation late that afternoon, after all
employees had left. Their investigation, he further stated, con-
sisted of inspecting the site where the van was parked. During
the investigation, Carrasquillo claims he observed brake fluid
on the rear of the van and on a section of the fence adjacent to
the rear of the van. Based on these findings, and the alleged
discovery of a bottle of brake fluid at DeDiego’s workstation,
Carrasquillo concluded that DeDiego was the one responsible
for damaging M. Perez’ vehicle. (Tr. 622–623.) M. Perez, it
should be noted, made no mention in his testimony of having
taken part in any such investigation with Carrasquillo.
On April 27, a decision was made to suspend DeDiego for
the brake fluid incident and for the March 31 Ford Explorer
incident. Carrasquillo testified that the decision was made
between him, Detres, and Falgueras. Falgueras was not ques-
tioned about this incident and consequently did not corroborate
Carrasquillo’s claim that he participated in the suspension deci-
sion. Detres’ testimony on who took part in the decision to
suspend DeDiego was ambiguous and self-contradictory. Thus,
asked by the General Counsel who made the decision to sus-
pend DeDiego for the brake fluid incident, Detres answered, “I

28 While Carrasquillo’s testimony about M. Perez going to see Fal-
gueras appears consistent with M. Perez’ claim that he did so, I am not
convinced that such a meeting between M. Perez and Falgueras regard-
ing this incident took place. My doubts in this regard stem from Fal-
gueras’ failure to confirm that any such meeting took place. Further,
Carrasquillo’s testimony about M. Perez going to see Falgueras was
couched in uncertainty. Thus, his actual testimony was that, “If I’m not
mistaken,” M. Perez went to report the incident to Falgueras.
29 Carrasquillo gave inconsistent testimony regarding the brake fluid
bottle. Thus, he initially took credit for finding the bottle at DeDiego’s
workstation. He subsequently changed his testimony, however, by
stating that M. Perez, not he, found the bottle (Tr. 617–618).
understand it was service manager, Mr. Carrasquillo.” (Tr.
549.) Further, when asked if Carrasquillo consulted anyone,
presumably either himself and/or Falgueras, before making the
decision to suspend DeDiego, Detres replied, “I could not tell.”
However, further in his testimony, Detres admitted having
taken part in that decision. He did not, however, corroborate
Carrasquillo’s claim as to Falgueras’ involvement, testifying in
this regard that “if there was somebody else who participated, I
wouldn’t dare to answer, because I don’t really know it for a
fact.” (Tr. 549–550.)
Asked to explain why DeDiego was suspended for the March
31 Ford Explorer incident 1 month after its occurrence, Carras-
quillo stated that he and the other two managers had decided to
wait before disciplining him for the reservoir incident to see if
DeDiego would engage in some other act of misconduct.
Again, Carrasquillo’s claim in this regard is not corroborated
either by Falgueras or Detres. Carrasquillo further testified that
had the brake fluid incident not occurred, DeDiego might never
have been disciplined for the Ford Explorer incident. (Tr. 639–
640.)
Despite the inconsistencies and the rather dubious explana-
tions provided by Detres, Carrasquillo, and M. Perez regarding
this incident, there is no question that on April 27, DeDiego
was suspended without pay for 8 days, in part, for this particu-
lar incident. DeDiego testified that at the end of the workday
on April 27, as he was leaving, Detres and Carrasquillo sum-
moned him to the office where Carrasquillo handed him an
envelope containing a letter notifying him of the suspension
(see GCX–18).30 DeDiego claims he took the envelope, picked
up his toolbox, and left. According to Detres, when DeDiego
returned from his 8 day suspension, he had “an aggressive atti-
tude towards his fellow workers in general, and there was a
sense of uneasiness among the personnel.” (Tr. 467.)
On August 10, DeDiego received a disciplinary writeup
signed by Carrasquillo and Detres. Although the memo lists
the subject matter of the writeup as “INTIMIDATION AND
COERCION TOWARD FELLOW WORKERS,” the memo
also charges DeDiego with having been disrespectful to
Carrasquillo on July 6,31 more than 1 month earlier, and with
having an “inferior productivity and efficiency” performance.
As to the intimidation conduct referenced in the writeup, the
memo accuses DeDiego of telling an employee, on August 2,
that she was on the Company’s side, and yelling at her on Au-
gust 3, and further telling the employee that he, DeDiego, was
“going to bring in the union no matter what, whether anyone

30 The suspension letter states that it was being issued by Carras-
quillo and Detres, confirming Detres’ involvement in that suspension
decision. It does not, however, list Falgueras as a participant in that
decision and simply reflects that he was served with a copy of the writ-
ten suspension decision. I am convinced that Falgueras did not take
part in that decision and that Carrasquillo was not being truthful in
claiming that he did.
31 The memo states that on July 6, DeDiego entered the dining area
where Carrasquillo was chatting with coworkers and began shouting
“Roly, Roly, Eh . . . , now you have to put up with Roly, and there is no
‘boggie’ [sic], no money, take that now.” Carrasquillo notes in his
memo that through his remark, DeDiego demonstrated a lack of respect
for him because DeDiego knew that Falgueras was a friend of his.
CARIBE FORD 1123
likes it or not (this again during working hours.” The writeup
warns that “if there is no corrective action on your part, we will
not have any other alternative but to take the corresponding
disciplinary action applicable to the case.” (See GCX–20.)
When asked to describe the nature of the intimidation
DeDiego allegedly engaged in, Carrasquillo stated that it re-
ferred to complaints he purportedly received from employees
Lillian Rodriguez and Carlos Perez regarding comments
DeDiego made to them about the union during working hours.32
Carrasquillo admitted, however, that the intimidating and har-
assing nature of DeDiego’s conversation with Rodriguez was
not its contents, but rather the fact that it occurred during work-
ing hours, stating in this regard that DeDiego had the right to
discuss whatever he wanted during the “lunch hour or quitting
time.” (Tr. 646.) DeDiego admits having discussed the union
with Rodriguez, but claims it occurred during his lunchbreak,
and not during working hours. Neither Rodriguez nor Carlos
Perez was called to refute DeDiego’s claim in this regard.
Carrasquillo’s claim in the writeup, therefore, that the conver-
sation occurred during work hours, lacks any evidentiary sup-
port. Accordingly, I credit DeDiego and find that his discus-
sion with Rodriguez occurred during his lunchbreak.
On August 12, 2 days after receiving the above-warning let-
ter, DeDiego responded with a letter of his own addressed to
Carrasquillo and Detres. In his letter, DeDiego admits being a
union activist and states that in said capacity, he was exercising
“the right granted to me by the National Labor Relations Act to
campaign on behalf of the Union during nonworking hours.”
Regarding the August 2 and 3 incidents referenced in the Au-
gust 10 warning letter, DeDiego stated:
I would like to clarify to you that the situations mentioned in
your memo, that took place on August 2 and 3, 1999, were
during non-working hours. Also, I point out to you that the
ones who are intimidating and threatening are yourselves with
the memo that you addressed to me.
The next day, in response to DeDiego’s August 12 letter,
Carrasquillo and Detres issued him another disciplinary
writeup. In this August 13 writeup, Carrasquillo and Detres
first acknowledge receipt of DeDiego’s August 12 letter and
then accuse him of not telling the truth in his letter because the
alleged acts of misconduct for which he was issued the prior
warning had, in their view, occurred during working hours.33

32 Carrasquillo in his testimony made reference to employee Carlos
Perez in connection with this alleged intimidation conduct by DeDiego.
It is unclear from his testimony, however, if Carlos Perez was being
mentioned as the recipient of that conduct by DeDiego, or whether he
had simply corroborated Rodriguez’ story to Carrasquillo regarding
DeDiego.
33 Carrasquillo’s testimony was ambiguous and confusing on who
prepared the writeup. Thus, asked who wrote the memo, Carrasquillo
replied, somewhat hesitantly, “It could be that I generated a draft, and
Jorge [Detres] reads it.” When asked which of the two actually wrote
the memo, Carrasquillo again replied, without much conviction, “It
must have been me.” I was unimpressed with Carrasquillo’s responses
to my questions in this regard, and am convinced he was being deliber-
ately evasive in answering questions regarding this particular incident.
Adding to his lack of credibility on this matter is Carrasquillo’s unwit-
ting admission that he did not believe there was anything wrong with an
They further advised DeDiego that his conduct was to be re-
viewed and evaluated in other “forums,” and that his conduct
was affecting the rights of his co-workers. (GCX–22.) By
letter dated August 17, addressed to Carrasquillo and Detres,
DeDiego advised them that he adheres to the position taken in
his August 12 letter, and asks for an explanation as to what
forums they were referring to in their August 13 letter (GCX–
24).
DeDiego testified that on September 3, at around quitting
time, Carrasquillo called him to his office where Detres was
also present. Once there, Carrasquillo handed him an envelope
containing a discharge notice. The discharge letter, received
into evidence as General Counsel Exhibit 23, states that for the
past few months, DeDiego had engaged in “an intolerable pat-
tern of misconduct.” The acts of misconduct cited in the letter
as the basis for the discharge included the following: low pro-
duction warnings issued to him on March 8, and August 11, 20,
and 27; his April 27 suspension; and the writeups issued to him
on August 10 and 13. When given the letter, DeDiego re-
marked, “[T]hey finally fired me,” to which Carrasquillo pur-
portedly replied, “Yes.” (Tr. 295.) The decision to terminate
DeDiego, according to Detres, was made by him and Carras-
quillo “maybe one, two weeks” prior to the September 3 dis-
charge date. When Falgueras was asked by Respondent’s
counsel to state the reasons for DeDiego’s termination, he ex-
plained that DeDiego “was dismissed because of his productiv-
ity and behavior towards fellow employees and managerial
personnel (sic).” (Tr. 802.)
C. Discussion
1. The 8(a)(1) allegations
The complaint, as noted, alleges, and I agree, that the Re-
spondent violated Section 8(a)(1) in several respects. Thus, I
find that the Respondent created the impression that it was
keeping DeDiego’s union activities under surveillance when,
during his March 24 meeting with DeDiego, Falgueras accused
DeDiego of being the one “who’s trying to bring the Union in
here.” In determining whether an employer has created an
impression of surveillance, the Board looks at whether an em-
ployee could reasonably assume from the statement in question
that his or her union activities have been placed under surveil-
lance. United Charter Service, 306 NLRB 150 (1992). While
the record evidence makes clear that DeDiego was principally,
if not exclusively, responsible for the Union’s organizational
drive among the Respondent’s service employees, there is no
evidence to suggest, nor does the Respondent contend, that
DeDiego had, prior to the March 24 meeting, conducted his
activities in the open, or publicly declared himself to be a union
supporter. In fact, DeDiego’s reluctance to discuss the union
with Falgueras in the presence of his two immediate supervi-
sors, Carrasquillo and Detres, suggests that he may have felt
uncomfortable doing so. Clearly, had DeDiego been open
about his union activities prior to his meeting with Falgueras, it
is highly unlikely he would have felt so reticent about discuss-

individual defending himself, as DeDiego had done in his August 12
memo. (Tr. 649.) Yet, Carrasquillo and Detres issued DeDiego the
warning for this very reason.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1124
ing his union activities in the presence of his supervisors. Thus,
while there is no disputing that DeDiego was the Union’s lead-
ing adherent at the facility, I am not persuaded that DeDiego
conducted his activities out in the open prior to his March 24
meeting with Falgueras. When Falgueras therefore called
DeDiego to his office and accused him of being the one respon-
sible for the Union’s organizational efforts at the facility,
DeDiego could reasonably have believed that the Respondent
had been keeping his union activities under surveillance. By
engaging in such conduct, the Respondent, I find, unlawfully
created an impression of surveillance and violated Section
8(a)(1) of the Act.
The Respondent also violated Section 8(a)(1) when Fal-
gueras, during his March 24 meeting with DeDiego, and again
at the employee meeting held the following day, Falgueras
threatened to close the facility if the Union were brought in.
The Board has long found such threats of plant closure to be
highly coercive and unlawful. See Springs Industries, 332
NLRB 40 (2000); Highland Yarn Mills, Inc., 313 NLRB 193,
206 (1993); Middle Earth Graphics, Inc., 283 NLRB 1049,
1057 (1987). The Respondent, in my view, also violated Sec-
tion 8(a)(1) when Falgueras, at the March 24 meeting, told
DeDiego he would be willing to fire Poldruhi if that is what it
took to convince employees to end the union drive, and that he
intended to talk to employees “to resolve the complaints that
they had.” Apparently true to his word, Falgueras, at the em-
ployee meeting conducted by him the following day, listened to
employee complaints on changes the Respondent had made
since taking over on matters relating to vacation and seniority,
and agreed to remedy them by rescinding the changes which
had been made in these two areas. There is no evidence here to
show, nor does the Respondent contend, that it had a practice of
regularly looking into and resolving employee grievances or
complaints. It is well settled that in the absence of such a prac-
tice, a solicitation of employee grievances accompanied by a
promise to remedy them constitutes coercive conduct and vio-
lates Section 8(a)(1) of the Act. Maple Grove Health Care
Center, 330 NLRB 775 (2000); Waste Mgmt. of Palm Beach,
329 NLRB 198(1999); Reno Hilton, 319 NLRB 1154, 1169
(1995); Ring Can Corp., 303 NLRB 353, 356 (1991); Reliance
Electric, 191 NLRB 44, 46 (1971). Indeed, as described above,
Falgueras in fact remedied some of the complaints brought to
his attention during the employee meeting. Accordingly, I find
that by soliciting, promising to remedy, and indeed remedying,
employee grievances, the Respondent, as stated, violated Sec-
tion 8(a)(1) of the Act.
Lastly, I find that the Respondent violated Section 8(a)(1)
when on March 30, Falgueras prohibited DeDiego from distrib-
uting union literature during his lunch hour and threatened to
fire DeDiego if he continued to do so. Although Falgueras
denied having discussed the distribution of Union literature
with any employee, I have, as noted, credited DeDiego’s claim
that he was ordered to Falgueras’ office where he was ques-
tioned about the distribution of literature and thereafter threat-
ened by Falgueras with discharge if he continued to do so. It is
well settled that employees have a Section 7 right to distribute
union literature in nonwork areas of the employer’s premises
during nonworking periods and that employers may not inter-
fere with this right except to the extent necessary to maintain
production or discipline. Republic Aviation Corp. v. NLRB,
324 U.S. 793 (1945); Eastex, Inc. v. NLRB, 437 U.S. 556, 570–
572 (1978); Eby-Brown Co. L.P., 328 NLRB 496 (1999); Ford
Motor Co., 315 NLRB 609, 610 (1994); NCR Corp., 313
NLRB 574, 576 (1993). No showing or claim has been made
here by the Respondent that DeDiego’s distribution activities
had in any way disrupted its operations. As such, the restriction
against distributing union literature imposed by Falgueras on
DeDiego, and his threat to fire DeDiego if he failed to comply,
unlawfully interfered with DeDiego’s Section 7 rights, and, as
noted, violated Section 8(a)(1).
2. The 8(a)(3) allegations
a. Generoso Perez’ discharge
The General Counsel contends that Perez was discharged in
violation of Section 8(a)(3) and (1) for his attempt to organize
the Respondent’s sale staff. To establish a violation of Section
8(a)(3) and (1), the General Counsel, under the causation test
set forth by the Board in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), must make a prima facie showing sufficient to support
an inference that protected or union activity was a motivating
factor in an employer’s decision to discipline or discharge an
employee. See Manno Electric, 321 NLRB 278 fn. 12 (1996).
The General Counsel makes out a prima facie case by demon-
strating, through a preponderance of evidence, that the alleged
discriminatee engaged in union or other protected activity, that
the employer was aware of that activity, and that it harbored
antiunion animus. Once a prima facie showing is made, the
burden of persuasion shifts to the employer to prove it would
have taken the same action even if the employee had not en-
gaged in any protected activity.
There is no question here, and I so find, that Perez was en-
gaged in union activity just prior to his discharge. Thus, Perez’
credible and uncontradicted testimony reveals that he contacted
the Teamsters Union some 2 weeks prior to his discharge in an
attempt to organize the salespersons. Perez also held a meeting
with employees at the Lot 2 showroom, presumably an open
area, to advise them of the upcoming meeting with a Teamster
official, and engaged in individual conversations with employ-
ees regarding the Teamsters. His testimony in this regard is
corroborated by Reyes and is also credited.
The question of whether the Respondent had knowledge of
Perez’ activities, however, is not so readily apparent, for, as
The General Counsel concedes on brief, there is no direct evi-
dence to show that the Respondent was aware of such activities.
Nevertheless, it is well settled that employer “knowledge” need
not be established directly, but may rest on circumstantial evi-
dence from which a reasonable inference of knowledge may be
drawn. Aero Ambulance Service, 327 NLRB 639(1999); Casa
San Miguel, 320 NLRB 534. 551 (1995); Dentech Corp., 294
NLRB 924, 954 (1989); Montgomery Ward & Co., 316 NLRB
1248, 1253 (1995). The Board, for example, may infer knowl-
edge where the reasons for the discipline are baseless, unrea-
sonable, or contrived so as to raise a presumption of wrongful
motive, or where the “weakness of an employer’s reasons for
adverse personnel action can be a factor raising a suspicion of
CARIBE FORD 1125
unlawful motivation.” Montgomery Ward & Co., supra. I find
such an inference fully warranted here.
Several factors lead me to conclude that the Respondent’s
explanations for discharging Perez are baseless and wholly
contrived. There is, first of all, the shifting nature of the expla-
nations proffered by the Respondent for its decision. In its
answer, for example, the Respondent states that Perez was dis-
charged because he had a “poor job performance and was the
object of two written warnings.” The two warnings alluded to
in the answer, which Perez denies receiving, are the April 22
memo issued to Perez while employed by Automotores, and the
October 2 memo (see RX–1, 2). At the hearing, Falgueras and
Avendaño testified, somewhat, but not totally, in conformity
with the reason given in the answer, that Perez was discharged
for his low production and a poor work attitude.34 (Tr. 718,
807–808.)
In its brief, however, the Respondent raises for the first time,
and in my view as an afterthought, an economic hardship de-
fense for the discharge. Thus, it contends that sometime in
December 1998, its board of directors discussed with Falgueras
the “economic problems” it was then experiencing, and that the
evaluation Falgueras was directed by Westphal to undertake in
January, and inferentially the discharges of Perez and Reyes
that followed, was directly related to its weak economic condi-
tion. (RB:12-13.) Falgueras, however, never testified to having
had any December conversation with Respondent’s board of
directors regarding economic problems it might be having. Nor
did he mention having any discussion with Westphal during the
January phone call about the Respondent’s economic condition,
or of being told by Westphal that a reduction in the sales force
might be needed because of the alleged economic problems the
Respondent claims on brief it was experiencing. Nor was any
such testimony offered by Avendaño. Indeed, when asked by
the General Counsel why the Respondent wanted an evaluation
done in the first place, Avendaño speculated that the Respon-
dent might simply have “wanted to know what position the
salespersons were at, since they were new at it,” suggesting
implicitly that the Respondent was simply interested in know-
ing how its sales staff was doing after 6 months on the job.35
(Tr. 754.) In sum, there is absolutely no record evidence to
support the Respondent’s economic hardship defense to the
Perez discharge. The absence of such evidence, coupled with
the Respondent’s belated attempt to raise this as defense, sup-

34 Falgueras gave conflicting and confusing testimony when asked if
the April 22, 1998 memo played a role in Perez’ discharge, stating at
first that it did not, then vacillated somewhat by stating, “it could have
been taken into account,” and finally claiming, “You could put it [as]
having been considered.” (Tr. 805–806.) Given his admission that it
was he who discharged Perez, Falgueras’ above-ambiguous responses
as to whether he relied on the April 22 memo to discharge Perez casts
serious doubt on his explanation for the discharge.
35 Avendaño’s further testimony about the Respondent’s intent to re-
place those it terminated with salespersons from other dealerships, if
accepted as true, would also serve to undercut the Respondent’s eco-
nomic hardship defense to the Perez (and presumably Reyes) discharge,
for it is highly unlikely that the Respondent would be hiring replace-
ments if it indeed was experiencing financial difficulties. Avendaño’s
claim in this regard is not credited, particularly since it was not cor-
roborated by Avendaño.
ports an inference that the true reason for the discharge is an
unlawful one. Tracer Protection Services, Inc., 328 NLRB 734
(1999); Atlantic Limousine, Inc., 316 NLRB 822 (1999);
Carambola Beach Hotel & Golf Club, 307 NLRB 915, 929
(1992), Gurabo Lace Mills, Inc., 265 NLRB 355, 370 (1982).
Equally without foundation is the Respondent’s contention
that Perez was selected for discharge because of low productiv-
ity, for the evidence of record establishes that Perez’ sales fig-
ures for the 6-month period exceeded that of other salespersons
not selected for discharge. There is, first of all, GCX–7, which,
as noted, was prepared by the Respondent’s own accounting
department at Avendaño’s request. While, as will be shown
below, another Company document received in evidence as
General Counsel Exhibit 3 reveals that the accounting depart-
ment in preparing General Counsel Exhibit 7 significantly un-
derstated the number of units sold by Perez during the 6-month
period between June and December 1998, General Counsel
Exhibit 7 by itself shows that Perez’ production numbers (59)
were higher than that of A. Negron (56) and Salgado (45), nei-
ther of whom was discharged. However, as noted, General
Counsel Exhibit 7 does not accurately reflect Perez’ productiv-
ity level for the 6-month period in question.
GCX–3, received into evidence without objection, are copies
of monthly reports for the period June to December 1998,
which the Respondent routinely provided to Perez on a monthly
basis containing his sales figures and commission earned for
the months in question. The Respondent, as noted, did not
object to its admission, nor did it question the reliability of the
data contained therein. Review of that data reveals that Perez’
actual sales from June through December 1998, totaled 74 units
sold, not the 59 units stated in General Counsel Exhibit 7. As-
suming, therefore, that the production figures set forth in Gen-
eral Counsel Exhibit 3 are correct, and the Respondent makes
no claim that they are not, then Perez’ productivity level for the
period June through December 1998, clearly exceeded that of at
least 6 of the 13 salespersons listed by the Respondent’s own
accounting department in General Counsel Exhibit 7,36 seri-
ously undermining, if not rendering patently false, the Respon-
dent’s contention that Perez’ productivity was among the low-
est of its sales staff.37 The Respondent’s contention in this

36 Avendaño admits that GCX–7 did not include the names of all the
salespersons in the Respondent’s employ during the 6-month period in
question. Thus, it is quite possible that Perez’ production figures may
also have exceeded that of the salespersons whose names were omitted
from GCX–7 by the accounting department.
37 The General Counsel also produced at the hearing a daily sales re-
cord which Perez maintained in the course of his employment with the
Respondent wherein he recorded the date of each sale made by him, the
customer’s name, the stock number assigned by the Respondent to the
vehicle, and the amount being financed by the customer. This record
was received into evidence as GCX–4 over the Respondent’s objection.
Perez credibly explained that he kept this record in order to verify the
accuracy of the monthly reports furnished to him by the Respondent in
the form of GCX–3. Perez further testified, and a comparison of GCX–
4 with GCX–3 shows, that there were sales made by him in the months
of July and November that were not reported in GCX–3. The Respon-
dent did not contest his testimony in this regard. The upshot of his
testimony is that when the additional sales are taken into account,
Perez’ production total for the period in question was closer to 78 (see
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1126
regard is further undermined by the fact that at no time prior to
his discharge was Perez ever told or warned about his alleged
low production.38 In sum, the weight of the evidence convinces
me that Perez could not have been discharged for low produc-
tivity.
Further, assuming, arguendo, that the two warnings, e.g.,
April 22 and October 2, 1998 memos, purportedly found by
Avendaño in Perez’ personnel file were in fact issued to him by
Falgueras, a claim denied by Perez (Tr. 88, 114), the weight of
the evidence convinces me they were simply dredged up by the
Respondent after the fact and had nothing to do with the real
reason for Perez’ discharge. The pretextual nature of the warn-
ings as a basis for the discharge is made patently obvious by the
fact that the April 22 warning was purportedly issued to Perez
by Automotores, the Respondent’s predecessor, for conduct
that allegedly occurred before Perez became employed by the
Respondent. Thus, for the Respondent here to suggest that this
memo could have played any role in Perez’ discharge simply
defies logic and common sense. Indeed, if, as claimed by the
Respondent, the April 22 memo was part of Perez’ personnel
file while he was employed by Automotores, then it can be
safely assumed that the Respondent knew full well of its exis-
tence when it chose to retain Perez as an employee after its
acquisition of the Automotores business. Incredulously, the
Respondent would now have me believe that this April 22
memo, which it chose to ignore when it decided to keep Perez
on as an employee, suddenly became a factor in the decision to
discharge him some 9 months later. I find the Respondent’s
contention in this regard simply too absurd to warrant further
discussion.
As to the October 2 warning, Avendaño admitted he had no
first-hand knowledge as to the reason for its issuance, and testi-
fied only that the warning was issued to Perez by Falgueras
based on an incident reported to the latter by Carrasquillo.
Carrasquillo, however, was never questioned about this warn-
ing or the incident(s) that purportedly led up to it, leaving un-
corroborated Avendaño’s testimony about Carrasquillo’s in-
volvement in it. Falgueras did testify about the warning but his
testimony was anything but persuasive. He vaguely explained,
for example, that he issued the warning to Perez because “we
continued to have problems with his attitude towards fellow
workers and clients,” and that the purpose of the warning was

GCB:5). The Respondent, who undoubtedly maintained production
records on all its salespersons, including Perez, produced no evidence
to refute Perez’ testimony or the data contained in GCX–3 and GCX–4.
Accordingly, I credit Perez’ testimony regarding the discrepancies
between GCX–3 and GCX–4, and find that his production figures for
the period between June and December 1998 indeed totaled approxi-
mately 78 units. As such, Perez’ production numbers was higher than 7
of the 13 salespersons listed in GCX–7.
38 Avendaño gave conflicting testimony on whether the matter of
low productivity was ever discussed with Perez. Thus, he initially
testified to having met with Perez “on different occasions” prior to his
January discharge to discuss his production, and that once such a meet-
ing occurs with an employee, it becomes an “official” matter (Tr. 745).
He subsequently admitted, however, that the first time Perez was noti-
fied of his low production was when he was discharged. I give no
credence to his testimony. Rather, I find that Perez, prior to his dis-
charge, was never spoken to by anyone regarding low production.
to let Perez know “that this is not the first time that we face this
situation of a defensive and aggressive attitude towards fellow
workers and clients.” (Tr. 806.) Yet, he offered no details on
what specifically triggered his decision to issue the warning.
Nor did he indicate that he issued the warning based on a report
from Carrasquillo, as claimed by Avendaño. Falgueras further
testified that he personally gave the memo to Perez and advised
him “to improve your attitude towards your fellow workers and
clients.” His testimony in this regard conflicts with Perez’
claim that he never received any such warning. I found Perez
to be the more credible of the two and accept his denial over
Falgueras’ claim that he personally gave the warning to Perez.
Falgueras’ testimony in this regard simply lacked the ring of
truth and came across as somewhat scripted. Thus, rather than
testifying specifically about the problems Perez was purport-
edly having with “fellow workers and clients,” Falgueras, when
asked why he issued the warning, what he discussed with Perez
regarding that warning, why Perez was discharged, and what he
told Perez during the discharge interview, simply parroted the
theme that it was Perez’ “attitude” towards his fellow workers
and clients which led to the October 2 warning and discharge.
Perez, I am convinced, never saw this warning prior to being
shown it at the hearing.
In sum, Perez’ credited testimony that he never saw either
warning prior to the hearing, that he was never told about the
warnings during the discharge interview, and the lack of any
mention in the discharge letter to the warnings as a basis for the
discharge,39 leads me to conclude that like the Respondent’s
“low production” defense, the warnings, even if they had been
in Perez’ personnel file, were mere afterthoughts used by the
Respondent to conceal its true reason for discharging Perez. I
am convinced from the patently false and pretextual nature of
its defense to the discharge, and the fact that the discharge oc-
curred within 1 week of Perez’ commencement of his union
activities, that the Respondent indeed knew of, and was op-
posed to, Perez’ union activity before firing him. I find that it
was the Respondent’s desire to nip the growth of any such un-
ion movement in the bud which prompted it to move against
Perez on January 22. Accordingly, I find that the Respondent
discharged Perez on January 22, not for low production or be-
cause of previously-issued warnings, but rather for his union
activities, in violation of Section 8(a)(3) and (1) of the Act.
b. The discipline imposed on and discharge of DeDiego
The General Counsel contends that DeDiego was suspended
for 8 days on April 27, issued the two disciplinary writeups on
August 10 and 13, and discharged on September 3, because of
his activities on behalf of the Union in violation of Section
8(a)(3) and (1) of the Act.
The General Counsel, I find, has established, prima facie,
that the actions taken against DeDiego were all motivated, at
least in part, by antiunion considerations. DeDiego’s union
activities, and the Respondent’s knowledge of said activities,
are well documented in the record. Thus, it was DeDiego who,

39 A failure to mention to an employee an asserted reason for an ad-
verse action at the time the action is taken can indicate a discriminatory
motive for the demotion. Delta Gas, 282 NLRB 1315, 1317 (1987).
CARIBE FORD 1127
as noted, first contacted the Union seeking guidance as to how
to proceed with the work stoppage he and other employees had
undertaken in March, and who essentially led employees to the
Union’s office where they signed authorization cards on behalf
of the Union. In addition to signing a card, DeDiego solicited
signed cards from other employees, and assumed responsibility
for returning to the Union the authorization cards he and others
had solicited. DeDiego distributed literature on behalf of the
Union to other employees during his free time, and personally
sought to persuade employees into supporting the Union. The
above makes patently clear that DeDiego was the Union’s most
ardent supporter.
The evidence also makes clear that the Respondent, prior to
taking the disciplinary measures against him that are the subject
of the 8(a)(3) allegations, was fully aware of DeDiego’s role as
a leading union adherent. Carrasquillo, as noted, testified to
learning of the Union’s organizational drive and of DeDiego’s
possible involvement in those efforts from employees Carlos
Perez and Lugo. Falgueras similarly testified that Carrasquillo
informed him of such union activity among the service depart-
ment employees sometime in March. DeDiego likewise credi-
bly testified that he disclosed his involvement in the Union to
Falgueras on or around March 24, after Falgueras summoned
him to his office and interrogated him about his activities.
Finally, the record amply supports a finding that the Respon-
dent harbored animus towards the Union and its supporters.
Thus, the Respondent revealed its animus when, through Fal-
gueras, it unlawfully questioned DeDiego about his union ac-
tivities, created the impression it was keeping his activities
under surveillance, and prohibited DeDiego from distributing
union literature on his own time under threat of discharge. The
Respondent further demonstrated its animus towards the Union
by soliciting employee grievances and promising to, and there-
after remedying, them. Its conduct in this regard, I find, was
designed to convince employees not to support the Union by
demonstrating that the Respondent, not the Union, was capable
of resolving their employment-related problems.
Accordingly, I find that the General Counsel has made a
prima facie showing that the Respondent suspended DeDiego
on April 27, issued him disciplinary writeups on August 10 and
13, and finally discharged DeDiego on September 3, because of
his activities on behalf of the Union. Under Wright Line, the
burden now shifts to the Respondent to rebut the General
Counsel’s prima facie case by demonstrating that each of the
above-described disciplinary measures taken against DeDiego
would have occurred even if DeDiego he had not taken part in
union activity.
(1) The suspension
The Respondent, as stated, contends that DeDiego received
the 8 day suspension for damaging M. Perez’ vehicle with
brake fluid, and for failing to repair the Ford Explorer on
March 8. Both stated reasons, in my view, are nothing more
than pretexts.
Regarding the brake fluid incident, DeDiego, as noted, de-
nied vandalizing M. Perez’ vehicle, a denial bolstered by the
absence of any direct, or credible circumstantial, evidence link-
ing him to the incident. Detres readily conceded that to his
knowledge, no one actually saw DeDiego commit the alleged
act, and M. Perez, who purportedly discovered the brake fluid
on his van, does not claim to have seen DeDiego do so. Rather,
the Respondent’s belief in DeDiego’s guilt, as stated by Detres,
was based on nothing more than the fact that DeDiego’s work
station was the one closest to where M. Perez parked his van on
the morning of April 26, and because an opened bottle of brake
fluid was found at his workstation. Perez’ assumption of
DeDiego’s guilt, however, was based on much less than that.
Thus, Perez assumed, rather incredulously, that DeDiego was
the one who vandalized his vehicle because moments earlier he
had overheard DeDiego singing aloud in the shop. Perez, as
noted, accused DeDiego even before finding a bottle of brake
fluid at the latter’s work station, and without so much as ques-
tioning DeDiego first or conducting an investigation into the
matter.
Carrasquillo claims that he did investigate the incident be-
fore imposing the suspension on DeDiego. Inconsistencies in
his testimony, and his generally poor demeanor, render his
claim in this regard unreliable and not worthy of belief.
Carrasquillo’s assertion, for example, that M. Perez took part in
that investigation was not corroborated by the latter. M. Perez,
as noted, testified that his only meeting with Carrasquillo re-
garding this matter occurred in the morning of April 26, soon
after he purportedly found the brake fluid on his van, but made
no mention of taking part in the investigation Carrasquillo con-
tends took place around 5 p.m. that day. Carrasquillo’s further
assertion that he discovered brake fluid on the vehicle during
his investigation is likewise inconsistent with M. Perez’ testi-
mony that he took his vehicle to a body shop for an estimate
and repair that same morning, and with Detres’ claim that he
saw M. Perez’ vehicle being washed earlier that day. Clearly,
if the van had been washed, as claimed by Detres, or been re-
paired earlier that day, as testified to by M. Perez, then it is
highly improbable that Carrasquillo would have seen any brake
fluid still on the vehicle when he purportedly conducted his
investigation. Given the inherent inconsistencies and improb-
abilities in Carrasquillo’s testimony, and his questionable de-
meanor, I simply do not believe that Carrasquillo conducted
any investigation into the matter. Rather, I am inclined to be-
lieve that Carrasquillo was not being truthful in claiming that
he did.
However, even if I were to believe that Carrasquillo investi-
gated the matter, the investigation was at best a perfunctory one
consisting of nothing more than a visit by Carrasquillo to the
site where M. Perez had his vehicle parked when the incident
allegedly occurred. Thus, there is no evidence that Carras-
quillo, or any other management official, so much as ques-
tioned other employees to see if anyone had heard or witnessed
anything that might shed light on who could have vandalized
M. Perez’ vehicle. Carrasquillo, it should be noted, never testi-
fied to having uncovered anything during his investigation that
incriminated or linked DeDiego to the incident. It is patently
clear, therefore, that to the extent an investigation was con-
ducted, which I doubt, it was at best a cursory one. The Board
has held that an employer’s failure to adequately investigate
alleged misconduct supports an inference of unlawful motiva-
tion. Sartorius, Inc., 323 NLRB 1275, 1280 (1997). The Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1128
spondent, I find, has not established that DeDiego vandalized
M. Perez’ vehicle on April 26. Rather, I am convinced that this
allegation of misconduct was a pure fabrication created for the
sole purpose of retaliating against DeDiego for having at-
tempted to unionize the service department employees.40
The other reason cited by the Respondent for the suspension,
e.g., DeDiego’s alleged failure to repair the Ford Explorer on
March 8, is also pretextual in nature. Initially, DeDiego testi-
fied that he did indeed perform the necessary repair work on the
vehicle on March 8. I credit his testimony in this regard, par-
ticularly since the Respondent’s own documents support his
claim. Thus, the work order given to DeDiego on March 8,
directing him to perform the repair shows that the repair in
question, replacement of a leaking windshield washer reservoir,
was performed, and that the damaged reservoir or “scrapped”
part was turned over to the parts department by DeDiego that
same day. Indeed, Detres readily admitted that the documents
do reflect that a windshield washer reservoir was installed by
DeDiego on the Ford Explorer on March 8.
The Respondent, however, contends that despite what its re-
cords show, it had reason to doubt, based on Detres’ inspection
and observation of the vehicle on March 31, that DeDiego re-
paired the Ford Explorer on March 8. It asserts that given De-
tres’ observations, and its failure to locate the old reservoir
DeDiego claims was removed from the Ford Explorer on
March 8, in its scrap storage area, it had reason to believe that
the reservoir on the vehicle on March 31, was the one that
should have been but was not replaced on March 8, by
DeDiego, and that DeDiego committed fraud by falsifying the
work order to show that work had been done. I disagree, for
the Respondent’s belief in this regard is based on nothing more
than speculation and conjecture.
Initially, I was not particularly impressed by Detres’ testi-
mony regarding this and other matters both because of his gen-
erally poor demeanor as a witness, and because his testimony
contains too many self-contradictions and inconsistencies ren-
dering it unreliable. Thus, I view with some skepticism his
testimony regarding the alleged investigation he conducted on
March 31, into whether DeDiego repaired the Ford Explorer on
March 8. While I do not doubt that Detres may have inspected
the vehicle,41 I find that the Respondent could not reasonably
have concluded from the observations made by Detres during
said inspection that DeDiego had not repaired the Ford Ex-
plorer on March 8.
Thus, the fact that the reservoir in the Ford Explorer was
leaking when the vehicle was brought in on March 31, does not
establish that DeDiego failed to make the necessary repair on
March 8, for as credibly explained by Vasquez to Detres, and as
latter reluctantly admitted at the hearing, new parts are often-
times found to be defective, making it quite possible that the
reservoir DeDiego installed in the Ford Explorer on March 8,

40 DeDiego, as noted, was never asked to compensate M. Perez for
the alleged damage caused to his van, leading me to believe either that
M. Perez had no proof of DeDiego’s involvement in the incident, or
that the incident never occurred in the first place.
41 My belief that Detres looked at the vehicle is based on Vasquez’
testimony that he was asked by Detres to inspect the vehicle.
was may have defective, thereby accounting for the continued
leaking. There is also the likelihood that the replacement reser-
voir installed by DeDiego on the Ford Explorer on March 8,
may have been damaged after the repair was made. The vehi-
cle, as noted, was not returned to the shop until some 3 weeks
later. Detres admits he never questioned the owner, Valentin, to
ascertain what, if anything, may have occurred with the vehicle
after it was driven out of the shop on March 8. Thus, he never
bothered to learn if the vehicle continued to leak washer fluid
when it left the shop on March 8, or when during the 3week
period between March 8 and 31, the owner first noticed the
problem. Nor did he inquire from the owner whether anyone
else might have looked at or tampered with the vehicle during
that time period.
The Respondent further contends that it was justified in con-
cluding that the defective reservoir on the Ford Explorer had
not been removed on March 8, as no scratch marks were found
on the bolts which held the part in place. Its contention, how-
ever, is based on Detres’ testimony which I find highly ques-
tionable. I am convinced from his demeanor on the witness
stand that Detres was not being fully candid regarding this par-
ticular incident. Thus, I do not believe his assertion regarding
the lack of scratch marks on the bolts. Vasquez, who credibly
testified he was asked by Detres to inspect the vehicle, made no
reference in his testimony as to the presence or absence of
scratch marks on the bolts, and in fact opined to Detres that he
could not tell simply from looking at the reservoir whether or
not it had been changed by DeDiego on March 8. Inconsis-
tency in Detres’ testimony regarding the photos he took of the
reservoir on March 31, further serve to undermine his credibil-
ity in this regard. Thus, on direct examination, Detres stated
that the photos he took of the reservoir clearly demonstrated
that the bolts were devoid of scratch marks. On cross-
examination, however, Detres conceded that it was not possible
to discern from the photos whether or not the bolts had scratch
marks, and that his testimony was based only what he purport-
edly observed on March 31. The Respondent, as noted, did not
call any of the three mechanics that Detres claims were asked
inspect the vehicle to corroborate his account. Consequently, I
place no credence on Detres’ assertion regarding the presence
or absence of scratch marks on the bolts.42
Nor would the Respondent have had any reason to suspect
that DeDiego did not replace the faulty reservoir on the Ford
Explorer on March 8, merely because it could not find the old
reservoir among its “scrapped” parts. Thus, assuming the truth
of Detres’ assertion, that said parts are stored in a “scrap” stor-
age area for 1 or 2 days at most, then it stands to reason that the
faulty reservoir which DeDiego removed and turned in as
“scrap” to the parts department some 3 weeks earlier would not

42 Other than evidence showing him to be a workshop supervisor,
there is no indication that Detres was an experienced mechanic or that
he was trained in the installation or removal of windshield washer
reservoir systems. Nor is there any evidence to suggest that Detres had
any special training or experience in the field of metallurgy that might
render him capable of providing a credible opinion on whether the use
of a tool, such as a ratchet and socket, to extract the metal bolts used to
hold a Ford Explorer windshield washer reservoir in place, would leave
scratch marks of the type testified to by Detres.
CARIBE FORD 1129
have been found in the “parts” storage area, but would instead
have been moved to a separate warehouse. Detres’ testimony,
which, as noted, was not corroborated by M. Perez, is that he
asked M. Perez to look in the “scrap” storage area for the part.
He made no mention of having directed M. Perez to also search
the warehouse for the part. I do not, in any event, believe, par-
ticularly in the absence of corroboration from M. Perez, that
Detres’ made any such request of the former. Rather, I am
convinced that no such search of the “scrap” storage area or the
warehouse was ever conducted by the Respondent. Even if I
were to believe that such a search was made and that the part
was not found, it still would not prove that DeDiego did not
turn the faulty reservoir over to the parts department on March
8, for, as noted, the Respondent’s own documents confirm
DeDiego’s claim that he did turn in the faulty reservoir to the
parts department. Further, there may be other explanations for
why the part might not have been in storage on March 31. It is
quite possible, for example, that a Ford Motor Company repre-
sentative came to claim the part, for both Detres and M. Perez,
as noted, testified that this was what typically happened to a
part within 30 days of storage. There is no evidence to indicate
that Detres, as part of his investigation, sought to contact Ford
Motor Company to ascertain if one of its representatives may
have already retrieved the “scrapped” reservoir from the Re-
spondent’s “scrap” storage area. Further, given DeDiego’s
testimony, which I credit, that “scrapped” parts are not main-
tained in a secure area, it is also possible that the defective res-
ervoir turned in by DeDiego on March 8, may been “appropri-
ated” by another employee for personal use. Again, there is no
indication in the record that Detres or any other management
official made any such inquiry of other employees.
Thus, I find that the Respondent did not have a reasonable
basis for concluding from Detres’ rather perfunctory investiga-
tion that DeDiego failed to perform the work in question on
March 8. Indeed, the fact that the Respondent took no action
against DeDiego following Detres’ purported investigation
leads me to believe that either the Respondent itself did not take
the investigation very seriously or that it had doubts as to
whether the factors cited by Detres sufficiently established that
DeDiego had not changed the defective part on March 8. In
this regard, I find it inconceivable that the Respondent would
have allowed DeDiego to return to work without so much as a
verbal warning if it truly believed that DeDiego had perpetrated
a fraud against it by falsifying records to cover up a job not
done. Carrasquillo’s rather lame explanation, that he did not
take immediate action against DeDiego because he preferred to
wait and see if DeDiego would engage in other acts of miscon-
duct, borders on the absurd and is rejected as not credible. As
stated, a more plausible explanation is that no action was taken
on March 31, either because DeDiego had in fact done the work
in question on March 8, or because the Respondent was unable
to prove that DeDiego had not done so.
In sum, I find that DeDiego was not guilty of either of the of-
fenses which the Respondent contends formed the basis for the
April 27 suspension. Thus, it produced no credible evidence to
show that DeDiego failed to repair the Ford Explorer engaged
in the misconduct attributed to him in the April 27 suspension
letter, nor that it had a good-faith believe that DeDiego was
guilty of the alleged misconduct. Accordingly, it has not met
its burden under Wright Line of establishing through a prepon-
derance of credible evidence that DeDiego would have been
suspended for 8 days on April 27, even if he had not a union
supporter. Avondale Industries, 329 NLRB 1064 (1999). In-
deed, the timing of the suspension, 1 week after the Union lost
the Board-conducted election, leads me to believe that the Re-
spondent, emboldened by its success over the Union, seized the
opportunity to not only punish DeDiego for his union activities,
but to also send a message to other employees that such activi-
ties would not be tolerated in the future. Both explanations for
the suspension, I am convinced, are mere pretexts conjured up
by the Respondent to hide the true retaliatory and unlawful
nature of the suspension. For these reasons, I find that
DeDiego’s April 27 suspension violated Section 8(a)(3) and (1)
of the Act, as alleged.
(2) The August 10 and 13 disciplinary writeups
As previously found, the General Counsel has made a prima
facie showing that the writeups, like the suspension, were moti-
vated, at least in part, by DeDiego’s union activities. As to the
writeups, the Respondent has presented no credible evidence to
rebut the General Counsel’s prima face case. Both writeups, in
my view, are clearly pretextual.
As to the August 10 disciplinary write-up, that warning, as
found above, was issued to DeDiego, in part, for discussing
union matters with Rodriguez during his nonworking hours, an
activity which Carrasquillo readily concedes was permitted by
the Respondent and which, more importantly, has long been
deemed to be protected activity under the Act. Waste Manage-
ment. of Palm Beach, 329 NLRB 198 (1999); Hale Annie Re-
habilitation, 326 NLRB 335 (1998); Ford Motor Co., 315
NLRB 309, 610 (1994). Accordingly, by issuing the warning
to DeDiego, in part, for engaging in union activities during his
free time, as was his statutory right, the Respondent, I find,
violated Section 8(a)(3) and (1) of the Act.43 While the August
10 warning cites two other reasons for its issuance, I find them
to be pretextual in nature. Thus, the one incident mentioned in
the memo accusing DeDiego of having been disrespectful to

43 In fact, Falgueras’ testimony, that employees could discuss the un-
ion individually among themselves during work hours, but not in
groups, meant that DeDiego’s discussion with Rodriguez would have
been permitted even if Carrasquillo’s claim about the incident occur-
ring during working hours was accepted as true. Detres’ testimony
that the Respondent had no prohibition whatsoever on employee solici-
tation and distribution during working hours is at odds with Falgueras’
claim as to the existence of a limited rule prohibiting group discussions
during working hours. As between Falgueras and Detres, I am inclined
to believe the latter that the Respondent did not have a no-
solicitation/no distribution rule applicable to working hours. The
Board, it should be noted, has held that in the absence of a formal no-
solicitation rule, an employer has the right to discipline an employee for
engaging in union activity only if the employee’s conduct interfered
with production on the occasion in question. Harry M. Stevens Ser-
vices, Inc., 277 NLRB 276, 282 (1985). Thus, assuming, arguendo,
that DeDiego’s discussion with Rodriguez did take place during work-
ing hours, the Respondent here neither contends, nor has produced
evidence to show, that DeDiego’s solicitation of Rodriguez interfered
with production.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1130
Carrasquillo occurred on July 6, more than a month before the
disciplinary memo was issued. Carrasquillo did not explain
why he waited so long to impose discipline on DeDiego for this
particular incident. Further, there is no indication in the record
that DeDiego was even spoken to about this incident either by
Carrasquillo or any other management official, prior to receiv-
ing the August 10 warning. Carrasquillo’s failure to immedi-
ately call to DeDiego’s attention conduct which he purportedly
deemed to be personally offensive and disrespectful, and the
unexplained long delay in meting out punishment for this al-
leged misconduct, simply makes no sense, leading me to be-
lieve that it was afterthought resurrected by the Respondent a
month after its occurrence so as to bolster its decision to retali-
ate against DeDiego for his union activities vis-à-vis Rodri-
guez.
The August 13 memo also violated the Act as it was issued
to DeDiego for disagreeing with the unlawful August 10 disci-
plinary writeup issued to him. Thus, the Respondent’s claim in
its August 13 writeup, that DeDiego was not being truthful in
asserting that his activities occurred during nonworking hours,
was simply wrong. The indignation expressed by DeDiego at
having been wrongfully accused of certain misconduct was
therefore fully justified, and could not serve as the underpin-
ning for the issuance of the August 13 writeup. While the
Board does not require an employer to condone an employee’s
insubordination or abusive behavior, it has nevertheless held
that an employer cannot provoke an employee into committing
an indiscretion and then rely on this indiscretion as a basis to
discharge or take some other disciplinary measure against the
employee. See Caterpillar, Inc., 322 NLRB 764, 678–679
(1996), and cases cited therein; see also NLRB v. Steinerfilm,
Inc., 669 F.2d 845 (1st Cir. 1982); Trustees of Boston Univer-
sity v. NLRB, 548 F.2d 391, 392–393 (1st Cir. 1977); Felix
Industries, Inc., 331 NLRB 144 (2000); R&W Landscape &
Property Management, 324 NLRB 278, 281–282 (1997). The
Respondent, in any event, has not contended that DeDiego’s
statement in his August 12 letter amounted to insubordination
or was in any way abusive. Further, Carrasquillo, as noted,
readily admitted that he did not find anything particularly
wrong in an employee, such as DeDiego here, “defending him-
self or herself” against charges brought against him. (Tr. 649.)
In these circumstances, I find that the August 13 write-up, like
the August 10 write-up, was unjustifiably issued to DeDiego
not for disagreeing with the Respondent, but rather in retalia-
tion for his union activities. Its issuance, therefore, violated
Section 8(a)(3) and (1) of the Act.
(3) The September 3 discharge
The General Counsel, as previously discussed, has made a
prima facie showing that DeDiego’s discharge, like the suspen-
sion and disciplinary writeups that preceded it, was likewise
motivated by antiunion considerations. The Respondent, on the
other hand, has not sustained its burden of showing that
DeDiego was discharged for legitimate, nondiscriminatory
reasons. As set forth in DeDiego’s discharge letter, the Re-
spondent based its decision to discharge DeDiego on what it
claims was a pattern of misconduct by DeDiego that included
the 8-day suspension, and the two disciplinary writeups given
to him on August 10 and 13. As found above, however, all
three of these disciplinary measures taken against DeDiego
were unlawfully motivated by discriminatory reasons and vio-
lated Section 8(a)(3) and (1) of the Act. It is well settled that an
employer may not justify a discharge on the basis of prior
unlawfully issued disciplinary warnings. Teledyne Advanced
Materials, 332 NLRB 539 (2000); Care Manor of Farmington,
Inc., 318 NLRB 725, 726 (1995); Equitable Gas Co., 303
NLRB 925, 932 (1989); Dynamics Corp., 296 NLRB 1252
(1989); Celotex Corp, 259 NLRB 1186 (1982). Application of
this principle thus renders untenable the Respondent’s claim
that DeDiego’s discharge was motivated by legitimate, nondis-
criminatory reasons.
The Respondent, of course, also cited DeDiego’s receipt of
four production warnings as a further reason for his discharge.
However, the burden of demonstrating that it would have
reached the same decision without reliance on the discriminato-
rily issued warnings and suspension clearly rests with the Re-
spondent. Fermont, 296 NLRB 1252, 1253 (1989). That bur-
den has not been met here. First, it should be noted that the
Respondent here makes no claim that DeDiego would have
been discharged on September 3, for low production even if he
had not been suspended on April 27, or been issued the August
10 and 13 disciplinary write-ups. In fact, Detres readily admit-
ted that one incident alone of those mentioned in DeDiego’s
discharge letter would not have been enough to cause his dis-
charge, and that it was his accumulation of events which led the
Respondent to terminate him (Tr. 510–511). Further, there is
no evidence to indicate that any employee has ever been dis-
charged by the Respondent based solely production warnings.
Nor is there evidence to suggest that the accumulation of a set
number of such production warnings would lead to termination.
In fact, the record reflects that other employees who received
numerous production warnings remain in the Respondent’s
employ.44 In sum, the Respondent has not met its burden of
establishing that DeDiego’s discharge would have occurred
without reliance on the unlawfully issued warnings and suspen-
sion. Accordingly, because his discharge was based on the
unlawfully issued warnings and suspension, it follows that
DeDiego’s discharge was also unlawful under Section 8(a)(3)
of the Act. Fermont, supra at 1254.45
CONCLUSIONS OF LAW
1. The Respondent, Caribe Ford, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Union Nacional de Trabajadores de Puerto Rico is a labor
organization within the meaning of Section 2(5) of the Act.

44 See warnings issued to employee Ernesto Rojas (GCX-26, 27, 28)
and to employee Mario Perez Diaz (GCX-29, 30, 31).
45 The complaint at par. 6(a) also alleges that beginning on or about
April 20, the Respondent unlawfully reduced DeDiego’s work load
thereby preventing him from meeting his assigned monthly production
quota. Other than DeDiego’s statement in this regard, no documentary
evidence was produced to show that the amount of work assigned to
DeDiego after April 20, was inconsistent with that being assigned to
other employees. Accordingly, I find no evidence to support this alle-
gation.
CARIBE FORD 1131
3. By threatening to close its facility if the Union were
brought in, creating the impression it was keeping Jose
DeDiego’s union activities under surveillance, prohibiting
DeDiego from distributing union literature on his own free time
and threatening him with discharge if continued to do so, and
by soliciting, promising to remedy, and thereafter remedying
employee grievances, the Respondent has violated Section
8(a)(1) of the Act.
4. By discharging Generoso Perez on January 22, 1999, is-
suing an 8-day suspension and disciplinary writeups to Jose
DeDiego, respectively on April 27 and August 10 and 13, and
thereafter discharging DeDiego on September 3, for their union
activities, the Respondent violated Section 8(a)(3) and (1) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
To remedy its discriminatory treatment of Generoso Perez
and Jose DeDiego, the Respondent shall be ordered to, within
14 days from the date of the order in this case, offer them full
reinstatement to their former positions or, if those positions no
longer exists, to substantially equivalent positions, without
prejudice to the seniority or other rights and privileges they
previously enjoyed. The Respondent shall also be required to
make Generoso Perez and Jose DeDiego whole for any loss of
earnings and other benefits they may have suffered due to their
unlawful discharge and, in DeDiego’s case, his 8-day suspen-
sion, in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest on such amounts to be com-
puted as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987). The Respondent will also be required to,
within 14 days from the date of this Order, rescind and remove
from its files any and all reference to their unlawful discharges,
and, in DeDiego’s case, to the unlawful April 27, 8-day suspen-
sion, and August 10 and 13 disciplinary writeups issued to him,
and within 3 days thereafter, notify them in writing that this has
been done and that said unlawful conduct will be used against
them in any way. Finally, the Respondent shall be required to
post an appropriate notice.46
[Recommended Order omitted from publication.]

46 Nothing herein shall require the Respondent to rescind any bene-
fits or improvements in employee terms and conditions of employment
which were unlawfully granted or made by the Respondent to dissuade
employees from supporting the Union.