Case Farms Processing, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 16, 2011

08-CA-039152 (N.L.R.B. Sep. 16, 2011)

JD–57–11
Winesburg, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CASE FARMS PROCESSING, INC.
and Cases 8-CA-39152
8-CA-39187
UNITED FOOD & COMMERCIAL 8-CA-39257
WORKERS, LOCAL No. 880
Melanie Bordelois and Steven Wilson, Esqs.
for the General Counsel
Thomas Rooney and Melanie Webber, Esqs.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was tried in Cleveland Ohio on
May 16–May 20 and May 23–May 24, 2011. On February 24, 2011, an amended consolidated
complaint and notice of hearing (the complaint) issued against Case Farms Processing, Inc., (the
Respondent) based on charges and amended charges filed by United Food and Commercial
Workers Union, Local No. 880 (the Union).1
As amended at the hearing, the complaint alleges in paragraph 9 that the Respondent,
violated Section 8(a)(1) of the Act by the following conduct of human resources manager Abel
Acen: on August 11, 20102 telling an employee that little by little he was going to get rid of
employees who participated in strikes at the Respondent's facility; in the beginning of August
2010, coercively telling an employee that he did not want the new employees to live in either
Dover or New Philadelphia because supporters of the Union lived in those cities and they might
convince the new employees to be union supporters; in the beginning of August 2010, soliciting

1 The charge in 8–CA–39152 was filed by the Union on September 15, 2010; an amended charge was
filed on October 14, 2010, and a second amended charge was filed on November 30, 2010. The charge in
8–CA–39187 was filed by the Union on October 14, 2010, and an amended charge was filed on January
31, 2011. The charge in 8–CA–39257 was filed by the Union on December 10, 2010.
2 All dates refer to the year 2010 unless otherwise indicated.
JD–57–11
2
employee Yerima Medero Ledesma (Ledesma) to be his agent for the purpose of making 5
coercive statements to employees concerning the Union; on September 10, 2010, coercively
telling an employee that he fired Union Committeeman Omar Carrion Rivera (Rivera) because
he did not want people associated with the Union working in the plant; on September 10, 2010,
soliciting Ledesma to be his agent for the purpose of conducting unlawful surveillance of
employees' protected concerted activities and/or union activities; on September 14, 2010,10
through translator Kimberly Clark, threatening an employee with termination if he did not master
a new job in a short amount of time, in retaliation for his protected concerted and/or union
activities; in the end of September 2010, unlawfully creating the impression of surveillance and
coercing employees by telling an employee that he had a list of union supporters in the “paws”
and “live hang” departments; and in the end of September, 2010, unlawfully threatening an 15
employee with termination along with the union supporters in the paws department if the
employee continued to request to transfer there.
Paragraph 10 of the complaint alleges that the Respondent violated Section 8(a)(1) of the
Act by the following conduct of its agent Ledesma: in August and September 2010, coercively 20
telling employees that the Union did not do anything for the employees, that strikes were not
effective and that employees should not go out on strike, and that there would not be a raise until
the Union was no longer the employees- representative, and on September 10, 2010, engaging in
surveillance of employees to discover their union activity.
25
Paragraph 11 alleges that the Respondent violated Section 8(a)(1) of the Act by the
following conduct of debone department manager, Bernard Cooper: on September 2, 2010,
coercively telling an employee that he could not visit the human resources office on his break
and that he had to be in the break room during his breaks; on September 17, 2010, telling an
employee, through translator Carlos Valladares, that he could not time the production lines, and 30
that he had to be in the break room during his breaks; on September 17, 2010, threatening an
employee, through translator Carlos Valladares, with unspecified adverse employment action if
he protested not being allowed to time production lines.
Paragraph 12 of the complaint alleges that the Respondent violated Section 8(a)(3) and 35
(1) of the Act by suspending its employees Rivera and Noe Vasquez Lozada (Lozada) on
September 8, 2010, and terminating their employment on September 10, 2010.
Paragraph 13 of the complaint alleges that on September 14, 2010, the Respondent
disciplined its employee Adolfo Jimenez in violation of Section 8(a)(3) and (1) of the Act.340
The Respondent's answer denied the material allegations of the complaint. On the entire
record, including my observation of the demeanor of the witnesses4, and after considering the
briefs timely filed by the parties, I make the following

3 On April 5, 2011, the Acting Regional Director for Region 8, on behalf of the National Labor
Relations Board, filed petition for an injunction under Section 10(j) of the Act in the United States
District Court, Northern District of Ohio, Eastern Division in Case 5:11-CV-679. On June 20, 2011,
Judge David Dowd granted the Board's petition for 10(j) relief in its entirety.
4 In making the findings regarding the credibility of witnesses, I have considered their demeanor, the
content of the testimony and the inherent probabilities based on the record as a whole. In some
JD–57–11
3
5
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation, is engaged in the business of processing chickens 10
at its facility in Winesburg, Ohio, where it annually sells and ships goods valued in excess of
$50,000 directly to points located outside the State of Ohio. 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.
15
II. ALLEGED UNFAIR LABOR PRACTICES
Background
The Respondent operates poultry processing plants in Morgan and Goldsboro, North 20
Carolina, and Winesburg, Ohio. Its administrative offices are located in Troutman North
Carolina. The Respondent also operates two other facilities in Ohio, a feed mill in Massillon and
a hatchery in Strasburg.
This case involves only the processing plant in Winesburg, Ohio. On June 25, 2007, the 25
Union was certified as the bargaining representative of the production and maintenance
employees at that facility. There are approximate 475 employees in the unit. Since 2007 the
Respondent and the Union have met approximately 63 times to negotiate a collective-bargaining
agreement but as of the close of the hearing no agreement had been reached. In approximately
August 2008, unit employees engaged in a strike that lasted until April 2009. The Respondent 30
did not permanently replace any strikers during the strike.
The record reflects that in February 2010 approximately 82 percent of the Respondent’s
unit employees were Hispanic with about 70 percent of that group being comprised of ethnic
Guatemalans. During the summer of 2010, the Respondent hired approximately 25 employees 35
from Miami, Florida. The vast majority of these employees were of Cuban descent. During
August and September 2010, unit employees engaged in a series of intermittent strikes lasting
from 1 to 3 days. These strikes occurred on August 11, 2010; August 20, 2010; August 31, 2010;
and September 10, 2010. Approximately 120 to 160 employees participated in each strike.
During the material time, Charles McDaniel has been the Respondent’s vice president and 40
general manager of the Winesburg facility and Abel Acen has been the human resources
manager at that facility.

circumstances, I credited some, but not all, of what the witness said. I note, in this regard, that "nothing is
more common in all kinds of judicial decisions than to believe some and not all" of the witness’
testimony. Jerry Ryce Builders, 352 NLRB 1262, fn. 2 (2008), citing NLRB v. Universal Camera Corp.,
179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U. S. 474 (1951). See also J. Shaw
Associates, LLC 349 NLRB 939, 939–940 (2007).
JD–57–11
4
The Alleged Violations of Section 8(a)(1) of the Act5
As noted above, paragraph 9 of the complaint alleges that several violations of Section
8(a) (1) were committed by the Respondent through Acen. Paragraph 10 alleges that the
Respondent, through its agent Ledesma, committed violations of Section 8(a)(1). In support of
these allegations, the Acting General Counsel relies primarily on the testimony of Ledesma, with 10
some aspects of her testimony corroborated by former employee Armando Diaz and other
witnesses. The Respondent relies primarily in the testimony of Acen, who denied all the
allegations, with some aspects of his testimony being corroborated by other witnesses. I find
neither Ledesma nor Acen to be entirely credible as both had deficiencies as a witness. Ledesma
had a tendency to exaggerate and was prone to generalize at times. On the other hand, Acen was 15
at times evasive and at other times testified in a manner that appeared to be designed to bolster
the Respondent's defense. As I discuss the specific allegations of the complaint I will indicate
why I credited one witness over another on a particular point.
Each party spent a significant amount of time and effort attempting to enhance the 20
credibility of its own witnesses and to discredit the opposing party's witnesses. It is appropriate
at the outset to resolve some of the issues raised regarding the credibility of Ledesma and Diaz.
In this connection, the Respondent called Julian Hernandez Lopez (Lopez) and Edwin Diaz
Sepulveda (Sepulveda) specifically to undermine the credibility of Ledesma and Diaz.
Sepulveda, a current employee of the Respondent, testified that on May 12, 2011, he was present 25
at the home of one of the Respondent's former employees, José Casado. According to Sepulveda,
Casado, Casado's wife, Diaz, and Nayda Coll, Diaz’ wife, were all present. Sepulveda testified
that Diaz told him that if he "wanted to get into the business of speaking bad about Abel, there
was a percentage involved." When Sepulveda asked if it was $100, Diaz allegedly responded that
he would give him $7000-$10,000. Diaz allegedly then stated that he wanted Sepulveda to say 30
that Acen hired him to go into the Union to find out "what was said and if there was going to be
a strike." (Tr. 930–932). Sepulveda testified that he reported this incident to Acen.
Diaz denied he was ever present at Casado's house and he specifically denied being there
on May 12, 2011, and offering a bribe to Sepulveda to testify falsely regarding Acen. Diaz 35
testified that he spent the majority of that day changing the oil on his car and produced a receipt
from Wal-Mart dated May 12, 2011, establishing that he purchased oil, an oil filter and an air
filter on that date. Diaz further testified that he has no social contact with Sepulveda. Coll
corroborated the testimony of her husband in all material respects.
40
I credit the testimony of Diaz and Coll over that of Sepulveda. Sepulveda’s claim is
implausible as there is no ready explanation as to how Diaz had the kind of resources and the
motive to attempt to bribe Sepulveda into testifying falsely that Acen committed a violation of
Section 8(a)(1) of the Act.5 Moreover, Sepulveda's demeanor while testifying about this
allegation was not impressive.45
Lopez is also a current employee of the Respondent. He testified that on May 15, 2011,
he was present at Casado's house at approximately 7:30 p.m. when both Ledesma and Diaz
arrived. According to Lopez, Diaz asked Mrs. Casado to convince her husband to give false

5 Neither José Casado nor his wife testified at the trial.
JD–57–11
5
testimony and state that Acen asked him to infiltrate meetings of the union committee and report 5
to him what was going on.
As noted above, both Diaz and Coll both testified that they had never been to the Casado
home. Union Representative Timothy Mullins testified that he had dinner with Ledesma on May
15, 2011, in a restaurant located on the west side of Cleveland, Ohio and that Ledesma left the 10
restaurant at approximately 7:30 p.m. to return to her hotel room in downtown Cleveland. I take
administrative notice of the fact that the distance from the restaurant to New Philadelphia Ohio,
where the Casado residence is located, is 92 miles and it would take approximately 1 hour and 32
minutes to drive that distance.6 I credit the testimony of Mullins as his testimony was detailed
and plausible and his demeanor demonstrated certainty. Accordingly, I do not credit Lopez's 15
claim that Ledesma was present at the Casado home at 7:30 p.m. on May 15, 2011. Because I
find Lopez to be an entirely unreliable witness, I also do not credit his claim that Diaz attempted
to solicit false testimony from Casado.
Turning to the specific allegations of the complaint, paragraph 9(A) of the complaint20
alleges that on or about August 11, 2010, Acen told an employee that he was going to get rid of
employees who participated in strikes. Complaint paragraph 9(B) alleges that in the beginning of
August 2010, Acen told an employee that he did not want new employees to live in either Dover
or New Philadelphia because union supporters might convince the new employees to support the
Union. Complaint paragraph 9(C) alleges that Acen solicited Ledesma to be his agent for 25
purposes of making coercive statements to employees. Paragraph 10(A) alleges that Ledesma on
multiple occasions in August 2010 and September 2010, made coercive statements to employees
as an agent of the Respondent. In support of these allegations the Acting General Counsel relies
on the testimony of Ledesma.
30
Ledesma testified that in the summer of 2010 she was living in Miami, Florida with her
brother when they contacted an employment agency in Miami which informed them that the
Respondent was hiring employees. After the initial contact with the employment agency,
Ledesma spoke to Acen by phone around July 4. Acen informed Ledesma that she was hired and
faxed documents to the employment agency in Miami for her and her brother to sign. Ledesma 35
and her brother traveled from Miami to Canton Ohio by bus and arrived on July 21, 2010.
According to Ledesma, Acen picked them up at the Canton bus terminal and took them to a hotel
in Massillon, Ohio and informed them that the Respondent would pay for the first week at the
hotel.
40
Ledesma stated that she began work for the Respondent on July 22 as a production
worker on the processing line.7 Acen told her and some of the other newly hired employees who
arrived from Florida that they could take breaks and lunch in the "small lunchroom", which is
also referred to in the record as the "supervisors lunchroom" or the "training room."

6 Pursuant to permission I granted at the hearing, the applicable mapquest search was attached to the
Acting General Counsel's brief as exhibit A.
7The Respondent terminated Ledesma for insubordination on November 2, 2010 (R. Exh. 23). I do
not credit her testimony that she quit her employment that day after an argument with her supervisor and
Acen about a work assignment. I find Acen’s testimony that he discharged her to be more plausible under
the circumstances and I therefore credit his testimony on this point.
JD–57–11
6
5
Near the end of her first week of work, Ledesma approached Acen and told him that she
and her brother could not afford to stay at the motel and pay for it themselves. Acen told her that
if she was going to look for a place to rent, he recommended that she look in Massillon. When
she asked why, Acen replied that the majority of the employees lived in Dover and New
Philadelphia and that is where the employees who belong to the Union lived and that if she 10
moved there those employees were going to approach her and ask her to join the Union which he
told her that she could not do (Tr. 381). Ledesma replied that since Acen had been there longer
she would follow his advice. Ledesma and her brother found a rental property in Massillon.
Ledesma testified that after she began her employment, she spoke to Acen on a daily 15
basis in his office. In early August 2010, while at her workstation, she observed employees begin
shouting. A supervisor approached her and told her to continue working and not pay any
attention to those employees as they did not want to work and were going on strike. Later that
day, she spoke to Acen in his office. She asked him what the strike was about and asked him
why he permitted that conduct in the plant as it demonstrated a lack of respect. Acen responded 20
there were “a lot of laws” in this country and he could not do anything but that he was going to
"take them out one at a time." (Tr. 383–384.) Ledesma indicated that she and the other "Cubans"
did not go on strike because they did not “have much time there” and were afraid of being fired
(Tr. 385).
25
According to Ledesma, at some point between the first and second strike in August 2010,
Abel spoke to her about what to say to other employees in case there was another strike. When
the next strike occurred, the striking employees first congregated in the employee lunchroom.
Acen asked Ledesma, and two other nonstriking employees to speak to the striking employees.
Ledesma testified that she spoke to the employees in the lunchroom and told them what Acen 30
had prepared her to say. She told the striking employees to return back to work and, as long as
they belonged to the Union, their salary was not going to increase (Tr. 386). Ledesma testified
that she made the same statements to striking employees when the next strike occurred.
The Acting General Counsel called Armando Diaz as a witness to corroborate portions of 35
Ledesma's testimony. Diaz was also hired through an employment agency in Miami, Florida and
is originally from Honduras. Diaz began work as a production worker on August 2, 2010. He
was promoted to a position as training coordinator at the end of August 2010, and was
terminated on November 26, 2010, for insubordination. He has testified that when he first began
work, Acen told him that he would be welcome to have his lunch in the training room.40
According to Diaz, most of the employees that were hired in Florida ate lunch in the training
room and not in the larger lunchroom that most employees used.
Diaz testified that he observed employees engage in a strike shortly after he began
working at the Respondent's facility, but that he never engaged in any of the strikes that 45
occurred. According to Diaz, when the first strike occurred, Acen "told thepeople that came from
Florida not to support the Union" and to go to the large employee lunchroom where the strikers
were gathering and tell them not to walk out (Tr. 476).
At the end of August or the beginning of September 2010, Diaz approached Acen with a 50
proposal to implement a training program that would help employees avoid injuries. According
JD–57–11
7
to Diaz, in a discussion with Acen regarding the training program on approximately September 5
10, Acen told him that "the purpose of bringing the workers from Florida was to replace the
workers already there, the Guatemalans that were supporting the Union" because Acen wanted to
get rid of the Union (Tr. 486).8
In defense of these allegations, Acen testified that he never met with Ledesma alone in 10
his office. He also specifically denied that he ever told any employee not to look for apartments
in Dover or New Philadelphia. Acen testified that he had never told employees that there would
be no pay increases until the Union was gone and maintained that he never instructed Ledesma to
speak on his behalf to other unit employees regarding the Union.
15
With respect to Acen’s claim that he had never spoken to Ledesma alone in his office, the
Respondent points to the testimony of the Respondent's human resources representative,
Stephanie Ajanel, who testified that since Acen arrived at the plant in February 2010, the policy
has been that two human resources representatives are always present when meeting with a unit
employee. Ajanel also testified that she had never observed Ledesma meeting with Acen alone in 20
his office.
Both Ajanel and the other human resources representative, Kimberly Clark, testified that
employees going to Acen’s office in the summer and fall of 2010 would have to go by their
desks to go to Acen’s office. A diagram prepared by Ajanel of the human resources office as it 25
was configured in 2010 (GC Exh. 27) shows that there was a door leading from the main
employee lunchroom into the human resources office that was located on the left side of the
diagram. If an employee entered that door he or she would be in the human resources office.
Acen’s office was located on the right side of the diagram. To go to his office through the human
resources office, one would have to pass by the desks of Ajanel and Clark. Ajanel also testified, 30
however that there is another door to Acen’s office. This door is also reflected on the right side
of the diagram. This second door is located in the hallway that goes past the human resources
office. There are windows in the human resources office by the desks of Ajanel and Clark that
overlook this hallway. If an employee went down this hallway, he or she would go past the
human resources office and arrive at the second door to Acen’s office. Importantly, past this 35
second door to Acen’s office to the right, as one looks at the door, is the "training room" or
"supervisor's lunchroom" where Diaz, Ledesma and some other employees took their lunch hour
and breaks. Thus, if an employee was in the training room and went into Acen’s office through
the door from the hallway, the employee would not be observed by Clark or Ajanel.
40
After considering all of the relevant circumstances, I find that Acen did meet with
Ledesma in his office. The configuration of the Respondent's offices would permit such a

8 The Acting General Counsel did not allege in the complaint that any of the statements made by
Acen that Diaz testified to, independently violated Section 8(a)(1) of the Act. Rather, the Acting General
Counsel contends that the testimony of Diaz is supportive of the complaint allegations that Ledesma
testified to since it establishes that Acen made similar statements to other employees. I indicated at the
hearing that I would not consider as an independent unfair labor practice anything that was not
specifically alleged in the complaint. Accordingly, as requested by the Acting General Counsel, I have
only considered the testimony of Diaz as corroborative of that of Ledesma and I do not make any findings
regarding whether the statements made to Diaz by Acen constitute independent unfair labor practices.
JD–57–11
8
meeting to occur without being observed by Ajanel or Clark. As noted above, Diaz credibly 5
testified that observed Ledesma meeting with Acen in his office, This is not surprising given that
he also often took his lunch and breaks in the training room which is located near the door to
Acen’s office. I do not find, however, that Acen and Ledesma met daily, as Ledesma claimed in
her trial testimony. Rather, I find that she spoke to him 2 or 3 times a week as she indicated in
her pretrial affidavit that was introduced into evidence by the Respondent (R. Exh. 11, p. 3). 10
With respect to the remainder of Ledesma's testimony with respect to paragraphs 9 (A) (B) and
(C) and paragraph 10 (A) of the complaint, her affidavit is consistent with her testimony.
Another factor convinces me that Ledesma was a confidant of Acen’s and that they spoke
frequently. Although Acen testified he did not speak of any personal matters involving his family 15
with the employees of the Respondent, Ledesma ‘s testimony established that she knew Acen
had a married daughter who lived in Cuba and the gender and approximate ages of his three
other children. There is no credible evidence establishing how Ledesma would know such
information unless Acen had told her. I find, after considering all the relevant circumstances,
Acen did have regular conversations with Ledesma in his office.20
While Acen denied ever telling an employee where to live and claimed that he was not
personally involved in helping Ledesma to find housing, he did not deny that he picked her and
her brother up in Canton Ohio after they had arrived from Miami and took them to the motel that
the Respondent had arranged for them to stay in Massillon, Ohio. Since Acen was personally 25
involved in Ledesma's housing situation at the outset, I find her testimony that he continued to
speak with her about her housing situation to be more plausible than his denial that he had never
done so, thus I credit her testimony on this point.
Accordingly, based on the credited testimony of Ledesma, as corroborated in certain 30
respects by Diaz, I find that in the beginning of August 2010, Acen told Ledesma to look for
apartments in Massillon because if she moved to the Dover/New Philadelphia area where the
majority of the employees lived, she would be approached to join the Union, which, according to
him, she could not do. In determining whether conduct violates Section8 (a)(1) of the Act, the
Board applies the objective test of whether the conduct "reasonably tends to interfere with the 35
free exercise of employee rights under the Act. Tyson Foods, Inc. 311 NLRB 552 (1993) citing
Hanes Hosiery, 219 NLRB 338 (1975). Applying this standard, I find Acen’s statement to
Ledesma to look for apartments in Massilllon because if she moved to the Dover/New
Philadelphia area she would be approached to join the Union violates Section 8(a)(1) of the Act
as alleged in paragraph 9(B) of the complaint.40
Crediting Ledesma, I find that on August 11, 2010, when Ledesma asked Acen why he
tolerated employees going on strike, Acen responded that there were “a lot of laws” in this
country and that he could not do anything, but that he will "take them out one at a time." It is
clear that through Acen’s statement that he would remove employees who engaged in strikes one 45
at a time, the Respondent violated Section 8(a)(1) of the Act as alleged in paragraph 9 (B). Penn
Color Inc., 261 NLRB 395, 405 (1982).
I also credit Ledesma's testimony that after the first strike on August 11, Acen asked her
to speak to employees if there was another strike. Acen told her to urge the striking employees to 50
return to work and to tell them as long as they belonged to the Union, their salary was not going
JD–57–11
9
to increase. By Acen’s solicitation of Ledesma to make statements discouraging other employees 5
from supporting the Union, the Respondent violated Section 8(a)(1) of the Act. Redwing
Carriers, 224 NLRB 530 (1976).
The Agency Status of Ledesma and the Alleged Coercive Statements Made by Her
10
Paragraph 8 of the complaint alleges that, during the material time, Ledesma was an
agent of the Respondent within the meaning of Section 2(13) of the Act. Paragraph 10(A) of the
complaint alleges that in August and September 2010, the Respondent violated Section 8(a)(1)
by coercive statements that Ledesma made to employees. The Respondent contends that
Ledesma was not its agent and therefore it is not responsible for any statements she may have 15
made to employees.
Section 2(13) of the Act states :
In determining whether any person is acting as an ‘agent’ of another person 20
so as to make such other person responsible for his acts, the question of
whether the specific acts performed were actually authorized or subsequently
ratified shall not be controlling.
The Board and the courts have long held that in determining whether a person acts as an 25
agent of another, the Board applies the common-law principles of agency. Dr. Rico Perez
Products, 353 NLRB 453, 463 (2008); NLRB v. Longshoreman (ILWU) Local 10 (Pacific
Maritime Association, 283 F.2d 558, 563 (9th Cir. 1960) enfg. as modified 123 NLRB 559
(1959). Under the common-law rules of agency, an agency relationship can be established by
vesting an agent with actual or apparent authority. Actual authority is "created by a principal’s 30
manifestation to an agent that, as reasonably understood by the agent, expresses the principal’s
assent that the agent takes action on the principal’s behalf.” Restatement (Third) Of Agency,
Section 3.01 "Apparent authority is the power held by an agent or other actor to affect a
principal’s legal relations with third parties when a third party reasonably believes the actor has
authority to act on behalf of the principal and that belief is traceable to the principal’s 35
manifestations.” Restatement (Third) of Agency, Section 2.03.
The party asserting an individual acts as an agent must establish an agency relationship
with regard to the specific conduct alleged to be unlawful. Pan-Oston Co., 336 NLRB 305, 306
(2001).40
The Acting General Counsel principally contends in this case that Acen conferred upon
Ledesma the actual authority to act as the Respondent's agent with respect to the matters alleged
in paragraph 10 of the complaint.
45
Based on the credited testimony of Ledesma, I find that Acen did, in fact, confer upon
Ledesma actual authority to act as the Respondent's agent with respect to making statements to
dissuade employees from engaging in a strike and claiming they would not receive a wage
increase as long as they supported the Union. After the first strike that Ledesma had observed
and discussed with Acen, he solicited Ledesma to make statements to employees should they go 50
on strike again and also told her what to say in such a situation. When some employees again
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engaged in strikes on August 20 and August 31, Acen directed Ledesma to go to the main 5
employee lunchroom and make the statements he had prepared for her. On both occasions
Ledesma told the striking employees to return to work because as long as they belonged to the
Union, their salary was not going to increase. In crediting Ledesma's testimony with regard to
her statements to the striking employees, I note that when she arrived to work at the plant at the
end of July she was unknowledgeable with regard to unions. When the first strike occurred on 10
August 11 she asked her then mentor Acen what the strike was about and asked him why he
permitted that conduct as it demonstrated a lack of respect. I find that it is entirely plausible that
Acen used Ledesma's allegiance to him as a basis to request her assistance in putting an end to
the partial strikes that the Respondent was experiencing at that time.
15
In Tyson Foods, Inc., 311 NLRB 522, (1993) the Board found that an employee
(Andrews) had both actual and apparent authority to be an agent of the employer with respect to
her circulation of a decertification petition. Regarding the actual authority of Andrews, the
evidence established that the employer solicited her to circulate the decertification petition and
she agreed to do so. Having solicited Andrews to circulate a decertification petition and assisting 20
her in her effort, the employer was found by the Board to be responsible for the circulation of the
petition and unfair labor practices that Andrews committed while so engaged. The Board noted
that there were two independent grounds to find that Andrews was an agent of the employer and
that she had both actual and apparent authority from management to solicit signatures for a
decertification petition. Id. at fn.2.25
While the evidence in Tyson Foods established that both actual and apparent authority
were present, the Board's statement that there were two independent grounds to establish agency
clearly indicates that only one needs to be present for an agency relationship to be established.
Since I find that Acen gave Ledesma actual authority to act as spokesperson on behalf of the 30
Respondent and instructed her as to what to say, it is unnecessary to establish that she also had
apparent authority to act on the Respondent's behalf. Thus, I do not find persuasive the
Respondent's argument in its brief that Ledesma did not exhibit sufficient indicia to establish that
employees would reasonably believe that she was reflecting company policy and that she spoke
on behalf of management. This argument is only applicable when the issue involves whether an 35
employee has apparent authority.
With respect to the content of Ledesma’s statements to employees, the Board has found a
supervisor's statement to employees that they would not get a pay raise until they got rid of the
union violated Section 8(a)(1) of the Act. Southside Electric Cooperative, Inc. 243 NLRB 390, 40
399 (1979). Accordingly, as alleged in paragraph 10(A) of the complaint I find that during the
August 20 and August 31, 2010, strikes, the Respondent, through its agent Ledesma, violated
Section 8 (a)(1) of the Act by telling employees that as long as they belonged to the Union their
salary would not increase.
45
The September 10, 2010, Allegations Regarding Ledesma
Paragraph 9(D) of the complaint alleges that on September 10, 2010, Acen told an
employee that he fired Union Committeeman Rivera because he did not want people associated
with the Union working in the plant; paragraph 9(E) alleges that on the same date Acen solicited 50
Ledesma to be his agent for the purpose of conducting unlawful surveillance of employees
JD–57–11
11
protected concerted and/or union activities; and paragraph 10(B) alleges that on that date5
Ledesma, as the Respondent's agent, engaged in the unlawful surveillance of employees’ union
activities.
The Acting General Counsel again relies on the testimony of Ledesma to support these
allegations. Ledesma testified that on September 9 she had a dispute with her supervisor, 10
William Sanchez, regarding a work assignment. According to Ledesma, Sanchez took her to
Acen’s office and Acen informed her that she was suspended for the day and to go home.9
According to Ledesma she left the plant around 9 a.m.(Tr. 438).
Ledesma testified she returned to the plant on September 10, 2010, at 8 a.m. and met with 15
Acen. On direct examination, Ledesma testified that after the meeting she returned to work and,
later in the morning, Acen told her that he wanted to see her in his office at lunchtime. When
Ledesma arrived at Acen’s office during her lunchbreak, he told her to forget what happened
yesterday. Acen told her that she was not going to "lose the day" and that she should bring him
her timecard and he would give her the 8 hours. Ledesma testified she brought him her timecard 20
and he signed it.10 When Acen initialed her timecard he asked Ledesma if she had been informed.
When Ledesma asked about what, Acen asked her if she knew who Rivera was. Ledesma
responded that he was the leader of the Union. Acen told her that he fired him because he was
the leader of the Union.
25
On cross-examination, however, Ledesma's placement of the time of this alleged
conversation was much different. On cross-examination, Ledesma testified that Acen asked her
to bring him her timecard during the morning break. She further testified that she brought him
the timecard at that time, which was approximately 9:20 a.m. and it was at that time that Acen
initialed her timecard and told her that he had fired Rivera because of his union activities.30
Ledesma testified that while she was taking her lunchbreak in the supervisor’s dining
area, she was again asked to see Acen. She returned to his office where Acen told her that a
strike may be pending because Rivera had been fired. He asked her to go outside the plant and
see what the employees who had gathered at the entrance to the plant with Union Representative 35
Mullins were talking about. Ledesma went to the area of the plant entrance where Mullins,
Rivera, and some other employees were gathered. As she approached them, they stopped talking
and she then returned to Acen’s office and reported to him that she had not heard anything
because they stopped talking when she approached them.
40
Union Representative Mullins testified that he was present at the plant entrance at
approximately noon on September 10, 2010, speaking to Rivera and other employees. A woman

9 GC Exh. 9 is a disciplinary counseling records dated September 9, 2010, signed by Ledesma. The
document indicates:
Employee is being suspended for today pending investigation for being insubordinate. Employee
is to return on 9/10/10 to the Human Resource Office to see Abel at 8:00.
On cross-examination, Ledesma claimed that Sanchez was not present when she signed the
disciplinary counseling record (Tr. 437).
10 GC Exh. 11, Ledesma's timecard for Thursday, September 9, 2010, reflects that Acen initialed her
timecard and wrote in 1600 (4 p.m.) and that she was paid for 7.67 hours for the day.
JD–57–11
12
he later learned was Ledesma approached him but then stopped and turned away without saying 5
anything.
The Respondent’s witnesses had a much different version of the events of September 9
and 10. Ledesma’s supervisor, William Sanchez, testified that shortly after Ledesma's afternoon
break ended, she told him that she needed to go to the human resources office. When Ledesma 10
had not returned after approximately 40 minutes, he went to the human resources office but did
not find her there. Sanchez testified that he found her in the supervisors’ lunchroom and
instructed her to return to work. When Ledesma replied that she did not like being followed and
refused Sanchez' order to return to work, Sanchez then told Ledesma to follow him to Acen’s
office. Following a meeting with Sanchez and Ledesma, Acen informed Ledesma that she was 15
suspended for her conduct and ordered her to report to his office the next morning. (Tr. 879-
882).
Acen also testified that Sanchez had come to the human resources office in the afternoon
of September 9 looking for Ledesma. Afterwards both Sanchez and Ledesma came to Acen’s 20
office at approximately 3:45 p.m. and Sanchez reported to him that Ledesma had told him not to
follow her when he found her in the supervisors’ lunchroom and directed her to return to work.
Acen then issued Ledesma the disciplinary counseling report noted above and suspended her for
the rest of the day for insubordination. Acen testified that Ledesma left the plant at 4 p.m. but did
not clock out, so he indicated on her card her time of departure as 4 p.m. and initialed the card. 25
He testified that Ledesma's normal ending time was approximately 6:15 p.m. and that Ledesma
lost approximately 2 hours pay for September 9.
Consistent with the disciplinary counseling report that Ledesma had been issued, Acen
testified that he met with Ledesma and Sanchez on September 8 at 8 a.m.. According to Sanchez, 30
Ledesma apologized and said she would not leave her post without permission again. According
to both Acen and Sanchez, the meeting lasted approximately 15 minutes and Sanchez and
Ledesma then went to the production area. Acen denied that he spoke to Ledesma after her
morning break on September 10. He further testified that he did not speak with her at her
lunchbreak as he left the plant approximately 11 a.m. to take one of the Respondent's 35
representatives, Claudia Dellaion, to the airport and did not return to the plant after that as he had
personal business to attend to.11
When questioned as an adverse witness by counsel for the Acting General Counsel, Acen
testified that on September 10 he was present at the meetings where employees Rivera and 40
Lozada were informed of their terminations. He testified that Rivera was terminated between 9
a.m. and 9:30 a.m. and the meeting with Lozada followed shortly afterwards and that he was
terminated at between 10:15 and 10:45 a.m. (Tr. 100–101 )12 In his direct testimony, Acen denied

11 Kimberly Clark testified that at approximately 11:15 a.m. on September 10, Acen came to a
meeting where Clark and Dellaion were giving training on a new timekeeping system, KRONOS, to get
Dellaion to take her to the airport (Tr. 860).
12 In support of its argument that Ledesma's version of the events that occurred on September 10 is
not credible, the Respondent points to Rivera's testimony that he was informed of his discharge at 10 a.m.
that morning (Tr. 226–227) and Clark's testimony that this meeting occurred at approximately 10 a.m.(Tr.
858–859).
JD–57–11
13
that he had a private conversation with Ledesma on September 10 and he specifically denied that 5
he told her to spy on Rivera and Mullins outside the plant.
When I consider all the relevant factors, I find that Ledesma's testimony regarding the
events of September 9 and 10 is not sufficiently reliable to support findings of unfair labor
practices. In the first instance, I note that there is a major inconsistency in Ledesma's direct 10
testimony and her testimony on cross-examination. On direct examination she testified that at her
lunchbreak on September 10, which occurred at approximately 11:50 a.m., Acen told her that he
had fired Rivera, the "leader of the Union." On cross-examination, however Ledesma
emphatically maintained that Acen told her about Rivera at her morning break which was at
approximately 9:20 a.m.15
In addition to Ledesma's inconsistent testimony, however, I also rely on the inherent
probabilities regarding the conflict in testimony between Ledesma and Acen, Sanchez, Clark,
and Rivera. In this regard, I find that Rivera's termination meeting occurred between 9 a.m. and
10 a.m. Even if that meeting began at 9 a.m., I do not believe that Acen would have told 20
Ledesma about Rivera’s termination at approximately 9:20 a.m. With respect to Ledesma's direct
examination testimony that the meeting with Acen occurred at her lunchbreak, the testimony of
Acen, as corroborated by Clark establishes that he left the plant before them. Accordingly, since
I do not credit Ledesma's testimony regarding the events of September 10, I find that Acen did
not tell Ledesma that he fired Rivera because he was "the leader of the Union" and that he did 25
not solicit Ledesma to engage in surveillance of employees regarding a potential strike.13
I find Mullins to be a credible witness and thus conclude that Ledesma did approach him
while he was at the plant gate with Rivera and other employees on September 10. However, I
find that she did this on her own volition and not because Acen asked her to do so. On the basis 30
of the foregoing, I shall dismiss paragraph 9(D) and (E) and 10(B) of the complaint.
The Late September 2010 Complaint Allegations Involving Ledesma
Paragraphs 9 (G) and (H) of the complaint allege that at the end of September 2010, Acen 35
created the impression of surveillance by telling an employee that he had a list of union
supporters in the paws and live hang departments and threatened that he was going to get rid of
the union supporters. Paragraph 9(I) alleges that at the end of September 2010, Acen threatened
an employee with termination if the employee continued to request a transfer to the paws
department.40
Ledesma was again the principal witness to support these allegations. Ledesma testified
that in September 2010, her brother transferred to the live hang department. The hours in this
department were from 5 a.m. to 4 p.m. As noted above, Ledesma's hours in the thigh department
were from 7 a.m. to approximately 6 p.m. Since Ledesma and her brother drove to work 45
together, she arrived at work at 5 a.m. and waited for her shift to start. Her brother would then

13 Because I find Ledesma's testimony regarding the events of September 10 to be unreliable, I also
do not credit her testimony regarding her suspension on September 9. Rather, I find the mutually
corroborative testimony of Acen and Sanchez to be the more credible version of that event.
JD–57–11
14
wait for her shift to end and at 6 p.m. They would then drive home together. Obviously, these 5
schedules made for a very long day.
According to Ledesma, in late September 2010, she approached Acen and explained that
she would like to have a transfer to the paws department so that she could work the same hours
as her brother. Acen stated that he would not transfer her to that shift because those employees 10
"belonged to the Union."14 Acen further stated that he was going to remove them "one by one"
and asked her if she also wanted to be fired. Ledesma replied, "no" and said she would wait for a
transfer. (Tr. 408.)
The fact that Ledesma was seeking a transfer to the paws department is corroborated by 15
Sanchez. He testified that Ledesma asked him for such a transfer in September 2010, but he told
her that she had to speak to Bernard Cooper, who possessed the authority to make such a transfer
(Tr. 878).
Diaz testified that in November 2010, Acen told him he was going to transfer a trainer, 20
José Otero, to the live hang department because there were only union supporters there. Acen
stated that Otero had not participated in the strike and that he wanted to transfer him to that
department to learn the work. Acen explained to Diaz that his reason for wanting to have Otero
learn the job was to train other employees to do that work, as Acen had a concern that if the
employees in the live hang department went on strike, they could stop all production at the plant.25
Acen denied that he ever had a conversation with Ledesma about transferring her from
the thigh department to the paws department. He specifically denied ever telling her that he
would not transfer her to that department because union supporters worked there; that he wanted
to terminate those employees and that he threatened her with termination if she persisted in 30
seeking such a transfer (Tr. 991).
The inherent probabilities of the situation convince me that Ledesma testified accurately
regarding this issue and I credit her testimony on this point. Her explanation for seeking the
transfer is entirely plausible and the fact that she was seeking such a transfer is confirmed by 35
Sanchez. Diaz credibly testified that Acen was concerned about the union supporters in the live
hang department and the effect of production that would occur if they engaged in a strike.
Moreover, Ledesma's testimony regarding these events demonstrated a certainty that I did not
observe with respect to her testimony involving the events of September 9 and 10.
40
Another factor that I have considered in finding Ledesma's testimony regarding Acen’s
statements to her in late September 2010 to be credible is my belief that Acen felt that Ledesma
betrayed his friendship and confidence in her to support him by her insubordinate conduct on
September 9 that caused her brief suspension. I believe that Acen was sending a message to
Ledesma not to overstep the bounds of their relationship and thus denied her request for a 45
transfer in clear and unequivocal terms. On the basis of the foregoing, I find that the Respondent,
through Acen, violated Section 8(a)(1) of the Act as alleged in paragraphs 9 (G) (H) and (I) of
the complaint.15

14 Apparently both the live hang and paws departments work from 5 a.m. to 4 p.m.
15 I do not credit the testimony of current employee Juan Carlos Bueno Artola who the Respondent
JD–57–11
15
5
The Suspension and Termination of Lozada and Rivera
Facts
In paragraph 12 of the complaint, the Acting General Counsel alleges that the Respondent 10
suspended Rivera and Lozada on September 8, 2010, and terminated them on September 10,
2010 because of their union and protected concerted activities.
Rivera began working for the Respondent in July 2003. He was an ardent union supporter
and was active in a campaign to organize the Respondent's employees in 2007. In this regard, he 15
signed an authorization card and afterwards went on home visits with Union Representative
Mullins to solicit other employees to sign authorization cards. After the Union was certified as
the bargaining representative in June 2007, he became one of the four employee members of the
union committee which attended the bargaining sessions along with Mullins and other union
representatives. Rivera had attended approximately 45 bargaining meetings with that Respondent 20
at the time of the trial. He participated in a 9-month strike lasted from approximately August
2008 to April 2009, and appeared daily on the picket line. In July 2010, he met with Acen as a
Weingarten representative for employees who were faced with possible discipline. Rivera
participated in the strikes that occurred in August 2010. The strike that occurred on August 20
and 21, was in protest of the suspension of five employees who had refused to perform newly 25
assigned work. Rivera met with Acen, the then Plant Manager, Hemrick Edmunson, and Charles
McDaniel, the general manager of the Respondent’s Winesburg facility. At the time of his
suspension on September 8, Rivera was assigned as a trainer on line 5. His duties involved
training new employees and performing production work. He also performed the important duty

called to impugn the credibility of Ledesma. I find his testimony to be implausible. He testified that
initially Ledesma made statements indicating she idolized Acen but that after she received her suspension
in early September 2010, she told Artola that she was very angry with him and "she would not stop until
she made dirt of Mr. Abel under her feet." (Tr. 950). I do not believe that after receiving the light penalty
of 2 hours of loss of pay for her insubordinate behavior on September 9, Ledesma would have been so
angered so as to make such a statement. I believe that but for her friendship with Acen, the penalty would
have been much worse and that Ledesma realized she was let off lightly. I also note that Artola is active
in encouraging employees to not support the union and his testimony demonstrated a bias against the
union and its supporters. Thus, I credit Ledesma's denial that she did not make such statements to Artola.
On the other hand, I do not credit Ledesma's testimony that she received a phone call from Padilla and
Acen in January 2011, in which she was offered her job back. According to Ledesma, after Padilla called
her, Acen got on the phone and said to her "forget everything that had happened in Case Farms and to
come back to work." (Tr. 1059). I find it highly unlikely that after Ledesma's continued insubordinate
behavior finally caused Acen to discharge her in November 2010, he would offer her a job again in
January 2011, in order to dissuade her from testifying against the Respondent. Accordingly, I credit his
denial of this event. I note, however, that this involves a collateral issue regarding the overall credibility
of Ledesma and Acen. Ledesma struck me as an emotional person and I believe her testimony on this
point was an attempt to respond to the attacks involving her credibility made by the Respondent. My
disbelief of her testimony on this issue does not lead me to believe, however, that Ledesma did not testify
truthfully regarding the matters on which I have credited her.
JD–57–11
16
of preparing the rotation list, which rotated employees on a production line to four different tasks 5
throughout the day.
Lozado began working for the Respondent on February 26, 2008, as a production
employee. He participated in a 9-month strike during 2008–2009. He also participated in all of
the strikes that occurred in August 2010. On approximately August 20, 2010, together with 10
another employee Adolfo Jimenez, he spoke to McDaniel regarding the five suspended
employees and urged McDaniel to reconsider their suspensions.16
On August 31, 2010, Lozada and another employee, Arquelio Reyes, were working on
line 5 when supervisor Adolfo Padilla directed both employees to work at another station, thigh 15
deboning, on the same line. When both employees refuse to follow Padilla's order, Acen
suspended both Lozada and Reyes for 5 days.17
After serving his suspension, Lozada returned to work on September 7. That morning
Padilla approached Lozada while he was working on line 5 and told him he was going to be 20
permanently transferred to line 2 (Tr. 606).18 Prior to speaking with Lozada, Padilla had received
authorization from Bernard Cooper, the deboning manager, to permanently reassign Lozada from
line 5 to line 2and Reyes from line 5 to line 1 in order to fully staff those lines.
According to the credible testimony of José Angel Otero, the trainer on line 2, when 25
Padilla and the Lozada arrived at line 2, Padilla told Otero, in the presence of Lozada, that
Lozada's transfer to line 2 was permanent. According to Otero, Lozada told him after Padilla left,
that he did not want to work on line 2 (Tr. 772).19
Lozada worked the remainder of September 7 on line 2 but on the morning of September 30
8 returned to line 5 and began working. Padilla testified that Lozada was needed to commence
production on line 2 so he proceeded to line 5 to speak to him accompanied by Ayala and
Cooper. When they arrived at Lozada's workstation on line 5, Padilla asked him why he had not

16 Jiminez testified that he attended a meeting with Lozada and McDaniel but recalled it was at the
time of the first strike in August 2010. Lozada’s testimony is more detailed and I find it is more reliable
as to when the meeting occurred. The testimony of Lozada and Jimenez is mutually corroborative
regarding the fact that they had a meeting with McDaniel to discuss issues involving one of the August
2010 strikes. I credit their testimony that Lozada was present at such a meeting over McDaniel's denial
that he had ever met with Lozada.
17 The Acting General Counsel does not allege that this suspension of Lozada was unlawful.
18 Lozada testified that Padilla did not tell him how long he would be working on line 2 (Tr. 313). I
credit Padilla over Lozada on this point. Padilla’s testimony is corroborated by that of supervisor Ramon
Ayala, who was present when Padilla spoke to Lozada (Tr. 679). In addition, I find it implausible that
Padilla would not tell Lozada whether he was to work on line 2 for only the remainder of the day or
permanently. However, I do not believe Padilla's testimony that he also informed Rivera of Lozada's
permanent transfer on September 7. The manner in which the events of September 8 unfolded convinces
me that Rivera had no prior knowledge of Lozada's transfer.
19 I credit Otero as he had no motivation to be untruthful regarding this issue. In addition I find his
testimony plausible in that Padilla admitted in his testimony that working on line 2 was harder than line 5
"because it's not his line" (Tr. 314).
JD–57–11
17
reported to line 2 that morning. After first ignoring Padilla, Lozada replied that line 5 was his 5
line and he was not going to report to line 2.
Lozada testified that on the morning of September 8, he returned to line 5 because no one
had told him he had been permanently assigned to line 2. According to Lozada, when Padilla
arrived at his workstation on line 5 and asked him what he was doing on line 5, Lozada replied 10
that he was working. Padilla then asked him why he was on line 5, when on the previous day he
had been told he was to work on line 2. Lozada stated "you never said anything to me, that's why
I'm on line 5" (Tr. 317). Rivera then approached them and asked "what's going on here." Padila
replied that he had told Lozada he was to work on line 2 permanently. Rivera responded he did
not know why employees who knew how to work on line 5 were taken to other lines. Rivera said 15
that if every line has its own trainer, he did not know why "they don't train their own people."
Rivera then stated that he knew that Lozada had been suspended in August and asked Padilla
"are you still pressuring him." Padilla replied no and then Padilla, Cooper, and Ayala left the
area. Lozada testified that Rivera and three supervisors were behind him during the discussion
between Rivera and Padilla and, since he continued to work, he could not see them, that he could 20
hear them. On cross-examination, Lozada acknowledged that during the conversation between
Rivera and Padilla, some employees began to shout "strike" and he also heard some employees
bang their knives (Tr. 344–345).
Rivera testified that at approximately 8 a.m. on September 8, he was training an 25
employee on line 5 when he observed Padilla speaking to Lozada. When Rivera arrived at
Lozada's workstation, he heard Padilla tell Lozada that he had to go to line 2 and Lozada replied
that line 5 was his line and he did not want to go (Tr. 214). Rivera then stepped between Padilla
and Lozada and told Padilla that he could not take Lozada, as supervisors come to his line and
take employees and the only thing that he has left are new employees.20 According to Rivera, he 30
then told Padilla that he was threatening Lozada; Padilla replied that he was not. Rivera then said
that he had trained Lozada and that he was staying on line 5. Cooper then told Padilla "let's go"
and the 3 supervisors left the area. Rivera testified that he was never closer than approximately 2
meters (6 1/2 feet) from Padilla during their conversation and that he did not have his deboning
knife in his hand while he spoke.35
Rivera's testimony is corroborated in all material respects by current employee Yasha
Welesca Rivers Melendez (Melendez) who was called as a witness by the Acting General
Counsel. According to Melendez, she was working on line 5 approximately 10 feet away from

20 The Respondent’s Winesburg facility has 5 deboning lines and a 6th line that is used exclusively
for training. In order to meet customer demand lines, 1 through 4 run at 30 birds per minute. In order to
maintain that line speed those lines have to be fully staffed. Since the Respondent's facility has a high
absenteeism rate, as much as 30 percent on some days, the Respondent at times assigns trained employees
from line 5 to lines 1–4 in order to fully staffed them with trained employees.
When experienced employees are taken from line 5, the remaining employees on line 5 have
additional work to do to maintain line speed, although line 5 operates at a lower speed than the other lines
because of lack of employees to fully staff that line and the experience level of the employees. In
addition, as the trainer on line 5, the loss of experienced employees required Rivera to have to train a
substantial number of new employees who had received only the most basic training on line 6. Rivera had
raised these concerns with members of management during the summer of 2010 when line 5 was assigned
a substantial number of new employees.
JD–57–11
18
Lozada when Padilla approached him. Melendez heard Padilla tell Lozada that he had to go to 5
another line but Lozada told Padilla that he was not going because line 5 was his line (Tr. 1148–
1149). She also saw Rivera step between Padilla and Lozada and tell Padilla that Lozada was not
going to another line because line 5 was his line (Tr. 1149). According to Melendez, while
Rivera was speaking to Padilla, Rivera did not have anything in his hands and had his hands at
his waist during the conversation (Tr. 1141–1143). While Padilla and Rivera were speaking, 10
some of the employees in the immediate vicinity began shouting "strike". Padilla, Ayala, and
Cooper then left the area while Lozada continued to work on line 5. Melendez testified that she
was not friendly with Rivera outside of work and is not a member of the union committee.
The testimony of Padilla, Ayala, and Cooper varies significantly from that of Rivera and 15
Melendez regarding this incident. According to Padilla, when Rivera spoke to him regarding
Lozada's transfer, Rivera was yelling and shaking his finger in Padilla’s face (Tr. 614.) Rivera
had his deboning knife in one hand and repeatedly shouted that Lozada was "going to stay here."
(Tr. 619.) Padilla further testified that while Rivera was speaking approximately 25 employees
began shouting and banging their deboning knives on the worktable and that production stopped. 20
Padilla also testified that employees began to gather around him. Cooper then asked Padilla to
leave the area with him and at that point the three supervisors left.
Ayala also testified that Rivera was shaking his finger in Padilla's face while they were
talking and that he had his deboning knife in his hand. Cooper testified that while he does not 25
speak Spanish, the language that Padilla and Rivera were conversing in that day, he observed
Rivera put his finger in Padilla's face and that he appeared angry.
Jose Angel Otero was also called as a witness by the Respondent regarding this incident.
Otero testified that during the discussion between Rivera and Padilla on September 8, he was 30
working on line 2. While he could see Rivera speaking to Padilla, he could not hear what they
were saying. During their discussion, about 20 to 25 employees began shouting and hit the
production line with their knives. On cross-examination, Otero denied that the employees were
shouting “huelga” (strike in Spanish) and maintained they were "just making a lot of noise and
banging their knives on the tables". (Tr. 779.)35
To the extent that the testimony of Rivera and Melendez conflicts with that of Padilla,
Cooper, and Ayala regarding the incident between Padilla and Rivera, I credit Rivera and
Melendez. I was impressed by their demeanor and the fact that their testimony was consistent on
both direct and cross-examination. Of all the witnesses who testified regarding this incident, I 40
find Melendez to be the most believable. Although she appeared somewhat shy and reticent
because of the gravity of her role as a witness in this proceeding, she had an excellent
recollection of the events and her testimony was credible in all respects. As a current employee
who testified against the interest of her employer, it is unlikely that her testimony is false. The
Board has noted that when employees testify against the interest of their employer, they subject 45
themselves to possibilities of recrimination and the perils would be even greater if such
testimony was false. Bloomington-Normal Seating Co., 339 NLRB 191, 193 (2003). See also
Flexisreel Industries, 316 NLRB 745 (1995); Federal Stainless Sink Division, 197 NLRB 49,
491 (1972).
50
JD–57–11
19
In contrast, the overly dramatic testimony of Padilla, Ayala, and Cooper appeared to be 5
contrived and, in my view, all three shaped their testimony in a way designed to bolster the
Respondent's defense. In addition to not being impressed by their demeanor while testifying
about the conversation between Padilla and Rivera and the improbable nature of their testimony,
there are other factors that I have considered in determining their testimony regarding this
incident is not reliable. I note that none of the statements taken during the Respondent’s 10
investigation that were signed by Padilla (R. Exh. 15), Cooper (R. Exh. 18), and Ayala (R. Exh.
19) mentioned that Rivera was holding a deboning knife during this conversation. I have also
considered Ledesma's testimony that, a couple of days after Rivera was discharged, she was in
Acen’s office with Padilla. According to Ledesma, when she asked why Rivera was fired, Acen
replied that he had an argument with Padilla. Acen then went on to tell Padilla that he had to say 15
"he feared for his life so that Omar wouldn't come back to the plant" (Tr. 1057). Padilla and
Rivera denied such a conversation took place. I credit Ledesma on this point as I find her
testimony plausible in light of Padilla's greatly exaggerated version of the conversation between
himself and Rivera.
20
On another of the many issues involving credibility raised by the parties, I credit the
testimony of Mullins and former employee and Union Committee Member Carmen Beltran
regarding statements made by Ayala at a union meeting held at a community center named Mi
Guate on February 8, 2011. According to Mullins, Ayala was present at this meeting and asked
Mullins if the Union could help him with a problem his girlfriend had at work. After discussing 25
this matter, Mullins asked Ayala if he was present when Rivera was fired. Ayala replied that he
was and that "Omar didn't do anything" (Tr. 1078). Beltran also testified that she was present at
this meeting and that Ayala told her Rivera was "innocent".21
Ayala, on cross-examination, denied that he had ever been to Mi Guate and testified he 30
had never told anyone that Rivera had not threatened Padilla (Tr. 714–715). When called as a
rebuttal witness, Ayala claimed that he had taken his girlfriend to the union meeting at Mi Guate
on February 11, 2008, and that he later picked her up, and that he had never gone into the
meeting.
35
I credit the testimony of Mullins and Beltran in respect to the statements regarding Rivera
made by Ayala at a union meeting held on February 11, 2008. I found the demeanor of these two
witnesses to be persuasive and their testimony had sufficient detail to be reliable. Ayala’s
demeanor did not impress me and he gave conflicting testimony about whether he had ever been
to Mi Guate.40
With regard to Lozada, I credit his testimony regarding the substance of the discussion
between Padilla and Rivera, as it is consistent with the testimony both Rivera and Melendez
made. However, I do not credit his testimony that Padilla did not inform him of the permanent
nature of his transfer because, as I have noted above, I find such testimony to be implausible 45
under all the circumstances. I have given little weight to Otero's testimony as he was not in a

21 Beltran further testified that Ayala told her that he knew that Acen had a plan to let go of the
representatives of the Union and other employees from Guatemala. I give no weight to this portion of
Beltran's testimony because it is unclear from her testimony whether this was something that Ayala heard
Acen say or whether this was Ayala’s opinion of Acen’s intentions.
JD–57–11
20
position to hear what Rivera and Padilla were saying. In addition, he was unable to testify as to 5
what employees were shouting during the exchange between Rivera and Padilla. His testimony
did not have the specificity required to underlie specific findings.
After Cooper and Padilla left line 5 on September 8, Padilla reported the confrontation he
had with Rivera to Acen then reported to McDaniel. McDaniel interviewed Padilla, Cooper, and 10
Ayala regarding the incident. Acen interviewed Rivera and Lozada during the afternoon of
September 8 and, pursuant to McDaniel's instructions, informed them they were suspended
pending further investigation. Human resources assistant Clark was present during these
interviews of Lozada and Rivera and Acen directed her to type her notes of the interviews.
15
After suspending Rivera and Lozada, Acen obtained written statements from Padilla,
Cooper, Ayala, and Otero regarding the incident. Acen presented the four statements and the
notes of the Rivera and Lozada interviews to McDaniel.
McDaniel testified that he reviewed the statements of the three supervisors and Otero and 20
the typewritten interviews of Rivera and Lozada. McDaniel testified without contradiction that
he made the decision to terminate Rivera and Lozada. With respect to Rivera, Acen made no
recommendation as to what discipline, if any, should be administered. McDaniel consulted with
William Lovette the Respondent's president; Robert Barragan the Respondent's director of
human resources; Kenneth Wilson, the Respondent's representative in collective-bargaining 25
negotiations; and the Respondent's attorney. McDaniel testified that he discharged Rivera
because of the threatening insubordinate manner in which he discussed Lozada's transfer with
Padilla. He further testified that the most troubling aspect of Rivera's behavior was that it
occurred on the production floor and that "it was almost a riot situation out there." (Tr. 796; 800–
801.) McDaniel further testified discharging Rivera was a difficult decision because he had acted 30
reasonably as the union committeeman and was a "good worker." (Tr. 800).
McDaniel testified that he also made a decision to terminate Lozada because of his
insubordination and refusal to accept assignments. McDaniel relied on both the suspension that
Lozada received on August 31 for refusing to rotate to another workstation and his refusal to 35
accept the transfer to line 2 on September 8.
According to McDaniel, he made the decision to terminate Rivera approximately 8:30
a.m. on September 10. He then called Acen into his office and instructed him as to what to put on
the termination notice. Rivera's disciplinary counseling record (GC Exh. 7) is dated September 40
10, and indicates he was terminated because of "Grossly disrespectful and intimidating conduct
towards a supervisor." Lozada's disciplinary counseling record (GC Exh. 8) is also dated
September 10 and indicates that he was terminated for "Failure to perform work as assigned and
insubordination."
45
Rivera was called to Acen’s office at approximately 10 a.m. on September 10, where
McDaniel, Acen, and Clark were present . According to Rivera's undisputed testimony, Acen
told Rivera that the Respondent had investigated the incident on September 8, and determined
that Rivera had threatened Padilla. Rivera protested saying he did not threaten him, Acen
repeated that the investigation revealed that he had. McDaniel said he was sorry because he liked 50
JD–57–11
21
Rivera but that he was dismissed. McDaniel then left and Rivera was given his termination 5
notice by Acen. Lozada was then called into the office and given his termination notice.
Analysis
Rivera10
The evidence is clear that Rivera was the most active union supporter in the plant. He
was one of the four employee members of the Union's negotiating committee and had attended
over 45 bargaining meetings. He had an active role in the 9-month strike against the Respondent
in 2008–2009 and had met with management representatives regarding a variety of issues 15
involving terms and conditions of employment.
It is also clear that the Respondent discharged Rivera because what it perceived to be his
"grossly disrespectful and intimidating" conduct toward a supervisor with respect to his
confrontation with Padilla on September 8.20
The first question to be addressed in this case is whether Rivera was actively engaged in
Section 7 activity when he discussed Lozada's transfer with Padilla. The Board has held that
even when employees are actively engaged in exercising Section 7 rights, they can lose the
protection of the act by engaging in opprobrious conduct. Atlantic Steel Co., 245 NLRB 814, 816 25
(1979). The Acting General Counsel contends that Rivera was, in fact, engaged in Section 7
activity while he was engaged in his discussion with Padilla. The Respondent contends that he
was engaged solely in a personal protest by attempting to shift more of the burden of training
new hires to other trainers, rather than engaging in any union or protected concerted activity
during this discussion.30
I find that the evidence supports the conclusion that Rivera was in fact engaged in
Section 7 activity when he discussed Lozada's transfer with Padilla. When Rivera arrived at the
discussion that was occurring between Lozada and Padilla, he immediately became aware that
Padilla was telling Lozada to report to line 2 and that Lozada did not want to go, but Padilla was 35
insisting that he do so. Rivera told Padilla that he could not take Lozada from line 5 because
supervisors were always taking employees from his line and he was left with only new
employees. When Padilla continued to insist that Lozada report to line 2, Rivera stated that he
knew that Lozada had been suspended in August and that Padilla was threatening him. During
the 3 to 5 minutes that Rivera and Padilla were discussing Lozada's transfer, some employees 40
located nearby began to shout "strike" in Spanish. Cooper then told Padilla and Ayala that the
supervisors should leave the area and they did so.
Rivera's actions demonstrate that he was acting as Lozada's representative during his
discussions with Padilla regarding Lozada's transfer to line 2. Rivera was a union committeeman,45
the most active union supporter in the plant. On a number of occasions he had intervened with
supervisors in an effort to represent the interest of unit employees regarding working conditions.
In this regard, in late August 2010, he had met with a number of supervisors including
McDaniel, in an effort to return 5 suspended employees to work. When he became involved in
the discussion with Padilla regarding Lozada's transfer on September 8, he was aware of 50
Lozada's recent suspension for refusing to rotate assignments and alleged that Padilla's directive
JD–57–11
22
to Lozada was threatening. As a member of the Union's employee committee and the most active 5
union supporter in a facility, I find that Rivera's intervention in this matter was, in fact, union
activity. In this connection, I note that he had represented the Union’s interest in many previous
meetings with supervisors regarding terms and conditions of employment. I also note that the
Board has held, with court approval, that the action of one employee espousing the cause of
another is protected concerted activity. Chromalloy Gas Turbine Corp. 331 NLRB 858 (2000); 10
Guardian Industries Corp., 319 NLRB 542, 549 (1995); Wilson Trophy Co. v. NLRB, 989 F.2d
1502 (8 Cir. 1993) enfg. 307 NLRB 509 (1992). I also note that the merits of the complaints
about the transfer of Lozada are not determinative of whether such conduct is protected. In this
regard, the Board has held that employee complaints about working conditions are protected
regardless of the merits of the particular complaint. Skrl Die Casting, Inc. 222 NLRB 85, 89 15
(1976).
The discussion between Rivera and Padilla involved a discussion of Lozada's line
assignment and the manner in which lines are staffed, both of which are clearly terms and
conditions of employment. The evidence establishes that the staffing of lines and line transfers 20
were matters of great concern to employees in the plant. In this regard, Lozada testified that he
viewed working on line 2 as somewhat more difficult than line 5 because of the differences in
some of the work that was performed (Tr. 314). Rivera testified that when a line is not fully
staffed "the product piles up" and the remaining employees have to perform more work (Tr.
290). The transfer of employees from line 5 was also a concern to Rivera personally because 25
removing experienced employees from line 5 made it difficult to maintain production while also
training a large number of new employees. The Board has clearly indicated that when an
employee engages in concerted activity, the fact that the employee also may have acted for
personal reasons does not detract from the concerted nature of the employee's conduct. Circle K
Corp., 305 NLRB 932, 933 fn. 9 (1991); Astro Tool & Die Corp., 320 NLRB 1157, 1161–1162 30
(1996). I do not agree with the Respondent's position that Rivera's discussion with Padilla was
purely an individual concern and an attempt to shift more of the training of new hires to other
lines and retain more experienced employees on line 5. When Rivera interceded with Padilla, he
was acting as Lozada's advocate in the matter, thus establishing that he was not pursuing solely
an individual concern. Accordingly, I find the cases relied on by the Respondent support of its 35
position, including Media General Operations Inc., d/b/a. The Tampa Tribune, 346 NLRB 369
(2006); K-Mart Corp, 341 NLRB 702 (2004) and Holling Press, Inc. 343 NLRB 301, 302
(2004), to be distinguishable from the instant matter as those cases all involved employees who
were pursuing only personal complaints.
40
It is also apparent that when employees in the immediate vicinity of the conversation
between Padilla and Rivera regarding Lozada's transfer from line 5 overheard the discussion,
some of them began saying "strike" during the conversation. While there was no actual work
stoppage, the fact that employees began saying strike, establishes they were reflecting support
for the opposition of Rivera and Lozada to the transfer. The fact that these employees reflected 45
support for the position of Rivera and Lozada is further indication that Rivera was engaged in
concerted activity during his discussion with Padilla. I note that the Board has found that
concerted activity occurs when a second employee spontaneously joins with an individual
employee’s protest. Worldmark By Wyndham, 356 NLRB No. 104 at sl. op. p.3 (2011).
50
JD–57–11
23
Since I have concluded that Rivera was, in fact engaged in union and protected concerted 5
activity while discussing Lozada's transfer with Padilla, I must determine whether his conduct
was such that it removed him from the protection of the Act. In Atlantic Steel, supra, the Board
found that when an employee's discharge is based on conduct that occurred while the employee
was engaging in union or concerted activity that is normally protected, opprobrious conduct will
remove the employee from the protection of the Act. To determine whether the alleged 10
misconduct is sufficient to remove employees from the Act’s protection, the Board considers the
following factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the
nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an
employer's unfair labor practices. Id. at 816. Datwyler Rubber and Plastics Inc., 350 NLRB 669,
670 (2007). 2215
With respect to the first factor, the discussion between Padilla, Lozada, and Rivera took
place in the production area where other employees were present. As noted above, other
employees expressed support for Padilla and Lozada by shouting "strike" during the
conversation. While I find that work on the processing line did not stop, the brief disruption in 20
the processing area establishes that the first factor weighs against Rivera's conduct being
protected.
The second factor, the subject matter of the conversation, weighs in favor of Rivera's
conduct being protected. The discussion between Padilla and Rivera involved the transfer of 25
Lozada and the staffing of lines, both of which are clearly terms and conditions of employment.
As a union committeeman, Rivera had a vested interest in representing employees regarding
what he perceived to be detrimental changes in terms and conditions of employment and had
previous discussions with various members of management regarding the staffing of lines and
transfers between the lines.30
With respect to the third factor, the nature of the employee’s outburst, the credited
testimony establishes that this factor also weighs in favor of Rivera's conduct being protected. In
this regard it is undisputed that Rivera did not assault Rivera, make any threats, or use profanity.
The credited testimony of Rivera and Melendez establishes that Rivera did not have his deboning 35
knife in his hand and that he did not point his finger in Padilla's face. I also find that while some
employee shouted "strike" during the conversation between Padilla and Rivera, employees
continued to work and did not crowd around Padilla.23 Rivera did challenge Padilla's directive

22 Both parties have also discussed in their briefs the applicability of the Supreme Court's decision in
NLRB v. Burnup & Sims, 379 U.S. 21 (1964) to the instant case. In Burnup & Sims the Court held that
Section 8(a)(1) of the Act is violated if it is shown that a discharged employee was engaged in protected
activity, that the employer had knowledge of the protected activity, that the basis of the discharge was an
alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of
the misconduct. Id. at 23. In this case, it is clear that Padilla and Rivera had a confrontation regarding
Lozada's transfer. In my view, under these circumstances, the appropriate analysis is contained in Atlantic
Steel and its progeny.
23 Since I do not believe the testimony of Ayala, Padilla, and Cooper regarding what occurred during
the discussion between Rivera and Padilla, I have given no weight to their testimony regarding their
subjective impressions of this incident. I note, moreover, that in cases involving the application of the
Atlantic Steel analysis, the Board has recently indicated that an objective test is applied to determine
whether the alleged misconduct is sufficient to remove an employee from the protection of the Act and
JD–57–11
24
that Lozada returned to line 2 on a permanent basis. While Rivera's conduct caused employees to 5
consider engaging in a strike, a work stoppage did not occur and disruption of production was
very brief, lasting no more than 3 to 5 minutes. Rivera's protest of Padilla's assignment was
clearly impulsive in nature. The Act permits some leeway for impulsive behavior which must be
balanced against an employer's right to maintain order and discipline. Thor Power Tool Co., 148
NLRB 1379, 1380 (1964), enfd. 351 F.2d 584 (7th Cir. 1965); Beverly, Health & Rehabilitation10
Services, 346 NLRB 1319, 1323 (2006); American Steel Erectors, Inc. 339 NLRB 1315, 1316
(2003). I find that Rivera's conduct in objecting to the reassignment of Lozada unaccompanied
by profanity or threatening behavior did not interfere with the Respondent's legitimate right to
maintain discipline and order. Accordingly, I also conclude that this factor favors the conduct of
Rivera being protected.15
In so concluding, I find that the instant case is distinguishable from the cases relied on by
the Respondent in support of its position that the conduct of Rivera warranted discharge. For
example, in Daimler Chrysler, 344 NLRB 1324 (2005), an employee approached a supervisor in
an open area where other employees and supervisors worked and used sustained profanity in a 20
loud ad hominem attack on a supervisor that other workers overheard. Id. at 1329–1330. The
Board concluded that the employee’s "sustained profanity in a work area would reasonably tend
to affect workplace disciplined by undermining the authority of the supervisor subject to his
vituperative attack." Id. at 1329. Even though the employee was engaged in protected grievance
investigation activity, his misconduct removed him from the protection of the Act. In Marico 25
Enterprises, Inc., 283 NLRB 726 (1987) an employee, Pauyo, was engaged in Section 7
activities during a conversation with a supervisor (Cohen). During the conversation, however,
Pauyo began yelling, and making gestures imitating sexual intercourse. Employees on the shop
floor began clapping and giving encouragement to Pauyo. Cohen requested Pauyo to leave the
area because of the disturbance he was creating. Pauyo responded that Cohen would have to fire 30
him before he would leave. When Pauyo refused to leave the area after two further requests, he
was discharged. Under these circumstances, the Board found that Pauyo’s extensive and abusive
actions and refusal to leave the area unless fired removed him from the protection of the Act.
Clearly, the manner in which Rivera lodged a protest to Lozada's transfer from line 5 was
substantially different than the conduct of the employees in these cases.35
While I find that the Respondent committed contemporaneous unfair labor practices,
there is no evidence that the unfair labor practices are related to or provoked Rivera to interject
himself into the discussion between Lozada and Padilla and thus the fourth Atlantic Steel factor
is neutral in this case.40
After considering the Atlantic Steel factors I find that the first factor, the place of the
discussion weighs against finding the conduct of Rivera to be protected, as his discussion with
Padilla on the production floor could be heard by other employees and did cause a brief
disruption of the processing line. With respect to the second factor, the discussion involved terms 45
and conditions of employment and thus weighs in favor of Rivera's conduct being protected.

that subjective impressions regarding the conduct have no value. Kiewit Power Construction Co., 305
NLRB No. 150 at sl. op. p. 4.
JD–57–11
25
Factor three, the nature of the outburst, also weighs in favor of protection. While Rivera 5
challenged Padilla with regard to whether Lozada's transfer was necessary or warranted, Rivera
used no profanity and the credited testimony establishes he did not act in a threatening manner.
The fourth factor is neutral as the unfair labor practices that the Respondent committed did not
provoke Rivera's conduct. Accordingly after careful consideration of all the factors, I find that
the two factors favoring protection outweigh the one factor that supports finding Rivera's 10
conduct unprotected. I find therefore that by first suspending and then terminating Rivera for his
conduct on September 8, the Respondent violated Section 8(a)(3) and (1) of the Act.
In a number of cases the Board has indicated that when an employee is discharged for
conduct that occurred while the employee was engaged in Section 7 activities, it is not necessary 15
to analyze the case under the Board's Wright Line doctrine.24 Kiewit Power Constr. Co., supra, at
sl. op. p. 4; Honda of America Manufacturing, Inc. 334 NLRB 751, 753 (2001) and Circle K
Corp., 305 NLRB 932, 934 (1991). Since in this case the evidence is clear that Rivera was
discharged for his conduct during his discussion with Padilla, during which he was involved in
Section 7 activity, I will follow the Board's directive.20
Lozada
As noted above, Lozada was a union supporter who participated in the 9-month strike
from August 2008 until April 2009 and the strikes that occurred in August 2010. In addition,25
together with Union Committeeman, Adolfo Jimenez, he met with McDaniel on approximately
August 23, 2010, to discuss the suspension of five employees for refusing to perform assigned
work.
On August 31, 2010, Lozada and another employee, Arguelio Reyes, were working on 30
line 5 when Padilla ordered them to move to another workstation (thigh deboning) on the same
line. Lozada and Reyes refused to follow Padilla's order and both received a 5-day suspension
which began on Wednesday, September 1, and ended on Tuesday, September 7.
When Lozada returned from his suspension on September 7, he reported to line 5, where 35
he had been working since approximately July 2010. Padilla approached Lozada at his
workstation and told him that he was going to be permanently assigned to line 2. Padilla escorted
Lozada to line 2 and, in Lozada's presence, told Otero, the trainer on line 2, that Lozado’s
transfer to line 2 was permanent.
40
Lozada worked the remainder of September 7 on line 2 but, on the morning of September
8, he returned to line 5 and began working. After Padilla became aware that Lozada was working
on line 5 and not line 2, he went to Lozada's position on line 5, accompanied by Cooper and
Ayala. When Padilla asked Lozada why he had not reported to line 2 that morning, Lozada
replied that line 5 was his line and that he was not going to report to line 2. At that point Union 45
Committeeman Rivera arrived and intervened in the conversation, contending that Lozada should
stay on line 5. Lozada did not further participate in the conversation between Rivera and Padilla
after Padilla arrived.

24 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981) cert. denied 455 U.S. 989 (1982).
JD–57–11
26
On September 8, after Acen had interviewed Lozada regarding the circumstances of his 5
refusal to report to line 2, he was suspended pending further investigation. McDaniel testified
that he made the decision to terminate Lozada on September 10 because of his insubordination
and refusal to accept assignments. The termination given to Lozada on September 10 indicated
he was terminated for "Failure to perform work as assigned and insubordination."
10
The Acting General Counsel contends that Lozada's discharge violates Section 8(a)(3)
and (1) of the Act pursuant to the Board's decision in Wright Line. The Respondent contends that
Lozada's discharge is not unlawful pursuant to the Wright Line doctrine. The Respondent also
contends that by continuing to work on line 5 and refusing to report to line 2, Lozada was
engaged in an unprotected partial strike and was subject to discharge on that basis pursuant to 15
Audubon Health Care Center, 268 NLRB 135, 137 (1983) and Vencare Ancillary Services v.
NLRB, 352 F.3d 318 (6th Cir. 2003) denying enf. 334 NLRB 965 (2001).25
Applying the Wright Line standards, I find that Lozada's union activities set forth above
were known to the Respondent. I find that the Respondent harbored animus toward its 20
employees’ union activities by virtue of the violations of Section 8(a)(1) it committed and its
termination of Rivera in violation of Section 8(a)(3) and (1). It is clear that Lozada suffered an
adverse employment action by virtue of his September 8, 2010 suspension and his September 10,
2010 discharge. Under Wright Line the Acting General Counsel has therefore established a prima
facie case and the burden shifts to the Respondent to establish that it would have discharged 25
Lozada in the absence of his union activities.
As noted above, Lozada was informed he was discharged for "Failure to perform work as
assigned and insubordination." McDaniel testified that he considered both Lozada's August 31
suspension and his actions on September 8 in making the decision to discharge him.30
The Respondent’s policy as expressed in the section of its current employee handbook
entitled "Corrective Counseling and Action" indicates that insubordination and refusal to do
assigned work are listed as "Group I" violations. According to the handbook, Group 1 violations
"are considered very serious" and employees may be suspended, depending upon the severity 35
and frequency of the violation, and progressive discipline or separation may result (GC Exh. 16.)
It is clear that shortly after being suspended for refusing to perform a work assignment on
August 31, Lozada, on the second day after returning from that suspension, again refused to
perform a work assignment. The language of the Respondent's handbook clearly indicates that
discharge may be an appropriate penalty for such conduct.40

25 I do not agree with the Respondent's contention that Lozada's conduct on September 8 amounted to
an unprotected partial strike. I note that in both cases relied on by the Respondent there was a concerted
refusal to perform assigned work by a number of employees, while they continued to perform other work.
In Lozada's case, when he initially refused to transfer to line 2 while continuing to work on line 5, it was
his decision, and his decision alone, as Rivera had not yet arrived at the conversation between him and
Padilla. In addition, only Lozada continued to work on line 5 and not report to line 2. No other employee
engaged in such conduct. The concept of activity engaged in concert is critical to the formation of a strike.
In this connection, Section 501 (2) of the Labor Management Relations Act provides:
The term "strike" includes any strike or other concerted stoppage of work by employees (including
a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted
slowdown or other concerted interruption of operations by employees.
JD–57–11
27
5
With regard to the manner in which the Respondent has administered its policy, it
suspended indefinitely 5 employees on August 23, 2010 for refusing to perform assigned work.
The suspensions indicated that the employees could return to work when they agreed to perform
the work as assigned. (R. Exhs. 26–30). After agreeing to perform the work as assigned, the
employees returned to work after 5 days. On August 31, 2010, as described above, the 10
Respondent suspended Lozada and Reyes for 5 days for refusing to perform assigned work. On
December 8, 2009, the Respondent suspended employee David Berrios for 3 days for failing to
perform assigned work and insubordination. The corrective action form issued to Berrios (R.
Exh. 33) reflects the following:
15
The employee refused to obey the Lead Person instructions on December 4, and
December 5, 2009. The lead person asked him to go to work to Evisceration area
and the employee refused the Lead Person instructions. The issue occurred in (sic)
two different times. The employee must obey the supervisor and Lead person
instructions. According with (sic) the employee Hand Book, the employee is20
suspended for 3 days for insubordination. If the employee is insubordinate again
the employee could be termed (sic) for insubordination according with the
employee handbook.
On two occasions, the Respondent issued verbal warnings to employees who refused to 25
accept a work assignment. On July 29, 2009 employee Josue Figueroa was issued a verbal
warning for refusing to train on the leg deboning line in order to improve his performance. The
warning further indicated that if the employee refused to obey the supervisor's instructions, the
employee could be terminated, (GC Ex. 18). On September 9, 2009, employee Pedro Jiminez
was issued a verbal warning for refusing to move to another department when a trainer asked30
him to do so. The warning indicated that another such incident would result in a suspension for
insubordination. (GC Exh. 22).
I note that Ledesma was discharged for insubordination on November 2, 2010 (R. Exh.
23) after first being suspended for engaging in insubordinate conduct. Diaz was also discharged35
for insubordination in November 2010. Since these actions occurred, however, after Lozada’s
discharge, I have given less weight to these discharges than the evidence of the Respondent’s
application of its disciplinary policy that occurred before Lozada’s discharge.
After considering the foregoing, I conclude that there is sufficient evidence to establish 40
that the Respondent would have discharged Lozada regardless of his union activities. In the first
instance, under the Respondent’s existing policy, Group I violations, such as insubordination and
a refusal to perform assigned work, can result in suspension or discharge. The Respondent has
suspended a number of employees who have refused work assignments. In this respect, after first
suspending Berrios for refusing a transfer, the Respondent clearly indicated to him that a second 45
instance of such conduct could result in termination. The fact that the Respondent on two
occasions issued an employee a verbal warning for a first offense for refusing to perform
assigned work does not detract from the fact that in other situations, the Respondent has
determined that suspension is an appropriate penalty for such conduct and indicated, in the
Berrios incident, that a second occurrence could result in termination. In addition, the evidence 50
JD–57–11
28
establishes that the Respondent discharged Ledesma after a second act of insubordination and 5
that Diaz was also discharged for insubordination.
In the instant case, Lozada refused Padilla's order that he report to line 2 on September 8,
shortly after returning to work after being suspended for refusing to rotate to another position on
the same line. His discharge for such conduct is consistent with the manner in which the 10
Respondent has applied its disciplinary policy to such instances. Importantly, the Acting General
Counsel has not produced any evidence that establishes that Lozada was treated disparately from
other employees who engaged in conduct similar to his.
In Septix Waste, Inc., 346 NLRB 494 (2006) the Board indicated that in order to establish 15
a valid Wright Line defense, an employer must establish that it has applied its disciplinary rules
regarding the conduct at issue consistently and evenly. I find that the Respondent has met this
burden with respect to the application of its disciplinary rules regarding Lozada's conduct. Under
the shifting burden analysis of Wright Line, the General Counsel must establish an unfair labor
practice by a preponderance of the evidence. Wright Line, supra, at 1088, fn. 11. I find that this 20
burden has not been met with respect to the discharge of Lozada. Accordingly, I conclude that
the Respondent did not violate Section 8(a)(3) and (1) with respect to Lozada's discharge and I
shall dismiss that allegation in the complaint.
The Allegations Involving Adolfo Jimenez25
Background
Jimenez was hired by the Respondent on April 20, 2005 and worked in the deboning
department for approximately 6 months. After that he worked in a variety of different 30
departments until he was again assigned to the deboning department in May 2010. In December
2010, Jimenez was transferred to the live hang department and was working there at the time of
the hearing.
Jimenez is a very strong supporter of the Union. He was involved in the initial organizing 35
campaign and solicited other employees to sign authorization cards. He served as an observer for
the Union at the election. He is an employee member of the union committee and has
participated in the negotiations. He participated in the 9-month strike that ended in April 2009,
and during that period participated in picketing at the Respondent’s facility. He participated in
the series a brief strikes that occurred in August and the September 10 strike that occurred after 40
Rivera and Lozada were terminated. Jimenez and Lozada met with McDaniel in August 2010,
regarding issues involving one of the strikes that occurred that month.
The September 2, 2010, 8(a)(1) Allegations
45
Paragraph 12(H) alleges that on September 2, 2010, the Respondent violated Section 8
(a)(1) of the Act when Cooper told an employee (Jimenez) that he could not visit the human
resources office on his break and that he had to be in the break room during his breaks.
Jimenez testified that when he first started working for the Respondent, he was informed 50
that if employees had questions they could go to the human resources office during breaks and
JD–57–11
29
lunch. Consistent with these directions, Jimenez had gone to the human resources office many 5
times during breaks and lunch prior to September 2010. According to Jimenez, in early
September 2010, he went to Acen’s office and knocked on the door. Cooper opened the door and
asked him what he was doing there. Jimenez responded that he had a message for Acen. Cooper
told him that he had no right to be there during his break and he should return to the break room.
At that point Acen arrived and Jimenez told him what Cooper had said. Acen told him that it was 10
"okay" to come to his office during breaks but that he did not have time to see him and that he
could come back on his lunch or break. Jimenez did not return that day but on a later day
returned to Acen’s office to speak with him.
Cooper denied telling Jimenez on September 2, 2010, that he could not visit the human 15
resources office during his break. Acen also denied that he heard Cooper tell Jimenez that he
could not come to the human resources office on breaks or that Jimenez complained to him that
Cooper was not allowing him to come to the office during his break. Clark testified that she did
not recall seeing Jimenez outside Acen’s office speaking to Cooper on September 2.
20
I credit Jimenez' testimony with respect to this incident. He testified in a detailed and
consistent manner with respect to these events on both direct and cross-examination. His
demeanor while testifying about this incident impressed me. In addition, I find it entirely
plausible that at a time of heightened tension in the plant after a series of short strikes in August
2010, that Cooper would react in the manner described by Jimenez when Jimenez arrived at 25
Acen’s office. The denials of this conversation by Cooper and Acen were cursory and both
appeared to testify on this point in a way designed to support the Respondent's defense. Clark's
generalized testimony is not probative. Jimenez could easily have been there when she was not
present or the conversation may have occurred at the door to Acen’s office which is not located
inside the human resources office.30
Based on the credited testimony of Jimenez, I find that on September 2, 2010, Cooper
told Jimenez that he could not come to the human resources office during his breaks and he
should return to the break room. I find that the statement violates Section 8(a)(1) of the Act
because it tends to limit employee access to the human resources office in retaliation for union 35
activity that Jimenez and other employees engaged in.
I do not agree with the Respondent's contention that, even if Jimenez is credited
regarding this incident, Acen’s statements to Jimenez repudiated the illegal conduct of Cooper
pursuant to the Board's decision in Passavant Memorial Area Hospital, 237 NLRB 138, 138–139 40
(1978). In Passavant the Board stated that under certain circumstances an employer may relieve
itself of liability for unlawful conduct by repudiating the conduct. To be effective the repudiation
must be "timely, unambiguous, specific in nature to the coercive conduct and free from other
proscribed illegal conduct." In addition, there must be adequate publication of the repudiation to
the employees involved and there must be no proscribed conduct on the employer's part after the 45
publication. As part of the repudiation, the employer should give assurances to employees that it
will not interfere with the exercise of their section 7 rights in the future. See also Intermet
Stevensville, 350 NLRB 1349, 1350, fn. 6, 1382–1383 (2007); River’s Bend Health, 350 NLRB
184, 193 (2007). I find that, under all the circumstances, Acen’s statement to Jimenez that he
could come to his office during breaks and lunch, does not sufficiently comport with the 50
standards of Passavant to eliminate the necessity of a remedial order and notice. As I have
JD–57–11
30
indicated in this decision, in September 2010, the Respondent committed additional violations of 5
Section 8(a)(1) and discharged Rivera in violation of Section 8(a)(3) and (1) of the Act. Thus, the
attempted repudiation did not occur in atmosphere free from other proscribed illegal conduct.
Under these circumstances, I believe that a remedial order and notice is necessary to safeguard
employee rights under the Act.
10
The September 14, 2010, Warning Issued to Jimenez
Paragraph 13(A) of the complaint alleges that on September 14, 2010, the Respondent
disciplined Jimenez in violation of Section 8(a)(3) and (1) of the Act. As amended at the hearing,15
Paragraph 9(F) alleges that on the same date, Acen, through Clark, threatened an employee
(Jimenez) with termination if he did not master a new job in a short amount of time, in retaliation
for his protected concerted and/or union activities.
On September 14, 2010, Jimenez was working on line 5 and was rotated to the wing 20
cutter position. According to Jimenez, Cooper approached him and took 5 wings and left without
saying anything. Later, a supervisor summoned Jimenez to Acen’s office. When Jimenez arrived
at the office, Cooper, Acen, Carmen Beltran, and human resources assistant Stephanie Ajanel
were present. Acen asked Jimenez why he could not cut wings. Jimenez replied that the job was
new to him and he did not know how to cut wings. 26 Acen stated that Jimenez had been working 25
for the Respondent for 6 years. When Jimenez repeated that wing cutting was a new job for him,
Acen told him that if he could not learn it in 1 day he would be fired. Jimenez said that he could
not learn the job but that he would try. Jimenez testified that Cooper then stated that Jimenez had
no respect for the company. According to Jimenez, at that point Acen told Ajanel not to translate
any more. Jiminez was given a warning written in English by Acen but Jimenez refused to sign 30
it. Jimenez cannot read English.
The written verbal warning given to Jimenez (GC Exh. 12) indicates:
Improper work performance, including neglecting work! Employee is expected to 35
improve work performance.27
After the meeting, Jimenez returned to the production line and continued to work.
Cooper testified that on September 14, 2010, he observed Jimenez making improper wing 40
cuts as he was leaving too much breast meat on the wings.28 Cooper further testified that since he
had previously trained Jimenez on wing cuts he was surprised to see such careless work.29

26 On cross-examination, Jimenez admitted that the wing cuts he made on September 14 was "bad
work."
27 The warning is dated September 15, 2010, but I credit Acen’s testimony that the meeting occurred
on September 14 and that he made an inadvertent error with respect to the date on the warning.
28 The record establishes that employees performing wing cuts are instructed not to leave breast meet
on the wings since breast meet sells for $1.70 a pound and wings sell for $.90 a pound.
29 Cooper testified that on March 10, 2010, he had previously trained Jimenez on various procedures
including wing cuts. At that time Cooper filled out a document entitled "Training Program" (R. Exh. 12)
JD–57–11
31
According to Cooper on September 14, he again showed Jimenez how to cut wings properly. 5
However, Jimenez continue to make improper wing cuts and at that point Cooper took the
incorrectly cut wings to Acen.
Acen testified that at the September 14, 2010 disciplinary meeting with Jimenez,
Kimberly Clark, not Stephanie Ajanel, was the human resources assistant present and that Clark 10
translated the meeting for Jimenez. Acen testified he never directed Clark to stop translating
during the meeting. Acen also denied telling Jimenez that if he did not learn how to cut wings in
2 or 3 days, he would be fired.
Clark testified that she was present at the September 14, 2010 meeting with Jimenez and 15
acted as the translator. She also took notes at the meeting. Clark denied that Acen told Jimenez
he would be fired if he did not learn how to perform wing cuts. According to Clark, Acen told
Jimenez he would get additional training in cutting wings.30
The record contains conflicting evidence regarding Jimenez' recent experience with wing 20
cuts beyond the 2 training sessions he received on March 10 and September 14, 2010. Both
Rivera and Jimenez testified that Jimenez had not worked at the wing cutter position on line 5
prior to September 14, 2010. In this connection, Rivera testified that Jimenez told him that he
could not cut wings because he had a hand injury. I note, however, that Jimenez never testified
that a hand injury prevented him from cutting wings. The record establishes that there are 14 25
different positions on the deboning line and that normally an employee rotates between four
positions a day pursuant to a schedule devised by the trainer on the line. There is no evidence to
indicate that a hand injury would cause greater difficulty in performing wing cuts as opposed to
the other tasks on the deboning line.
30
Padilla and Ayala both testified that they observed Jimenez cutting wings on line 5 prior
to September 14. Otero, the trainer on line 2, also testified that he observed Jimenez cutting
wings frequently.
I do not credit Rivera's testimony that he did not assign Jimenez to cut wings because of a 35
hand injury because that assertion is not corroborated by Jimenez. Thus, if for some reason
Jimenez was not assigned to cut wings as part of the normal rotation, there is no credible
explanation in the record as to why that occurred. Accordingly, I credit the mutually
corroborative testimony of Ayala and Padilla that they observed Jimenez cutting wings prior to

that contained Jimenez’ signature. This document reflected various procedures Jimenez was trained on at
that time. The document reflects that on March 10, Jimenez received 2 sessions of wing cutting training.
While Jimenez admitted that he signed the document, he claimed that he did not receive training on wing
cuts on that date but that Cooper merely observed him. I do not credit his testimony on this point as I find
it implausible when I consider the record as a whole. Rather, I credit Cooper's testimony that Jimenez
received extensive training on wing cuts on March 10, 2010. Jimenez admitted that he also received
additional training on wing cuts from Rivera on September 10, 2010.
30 A trainer was assigned to work with Jimenez on wing cuts later that day.
JD–57–11
32
September 14. Otero's testimony, however, has little probative value because he was not in a 5
position to observe the work of Jimenez with clarity from his position.
With respect to the events of the disciplinary meeting regarding Jimenez that occurred on
September 14, 2010, I credit the mutually corroborative testimony of Cooper, Acen, and Clark
over that of Jimenez. I do not find that Jimenez' recollection of that meeting is sufficiently 10
precise to support specific findings of fact. In the first instance, Jimenez recalled that Ajanel was
the human resources assistant present at the meeting, when clearly it was Clark. In addition, I did
not find him to be forthcoming regarding the wing cutting training he received in March 2010.
His attempt to diminish the training he received causes me to doubt his testimony surrounding
the circumstances of his warning.15
Since I do not credit Jimenez' testimony with respect to the disciplinary meeting of
September 14, 2010, I find that the Respondent did not, through Acen, threaten Jimenez with
termination if he did not master the job of wing cutting in a short time. Accordingly, I shall
dismiss paragraph 9F of the complaint.20
Regarding the written verbal warning that Jimenez received on September 14, 2010, I
find, consistent with the credibility resolutions noted above, that Cooper observed Jimenez
making improper wing cuts on that date. Although Cooper had previously given Jimenez
individual training on wing cuts on March 10, 2010, Cooper again showed him the proper 25
manner in which to make those cuts on September 14. When Jimenez persisted in cutting the
wings improperly, Cooper took the improperly cut wings to Acen who determined that a verbal
written warning was appropriate discipline for Jimenez' improper work performance on that date.
A verbal written warning is the first step in the Respondent’s disciplinary process.
30
Applying the Board’s Wright Line analysis to the warning given to Jimenez, he is one of
the most active union supporters in the plant and his activity is well known to the Respondent.
The unfair labor practices I have found here demonstrate that the Respondent harbors some
animosity toward its employees who were supporters of the Union and the verbal written
warning that Jimenez received is clearly an adverse employment action. Accordingly, the Acting 35
General Counsel has established a prima facie case of discrimination with respect to the warning
given to Jimenez on September 14, 2010.
With respect to the Respondent's defense, I first note that Jimenez admitted that the wing
cuts he made on September 14 prior to receiving his warning were not done correctly. Jimenez 40
had received individual training on performing wing cuts on March 10, 2010; he at least
performed some wing cuts in his work on line 5 and was, by his own admission, given additional
training by Rivera on September 10. Cooper gave additional instruction to Jimenez on September
14, which he failed to follow. Considering the record as a whole, I find that Jimenez had
sufficient training to properly perform the job of wing cutting on September 14, 2010. 45
The Respondent issued 15 verbal written warnings to other employees for poor
performance from November 9, 2009 through September 2010. (R. Exhs. 35a - p). Some of these
verbal written warnings were for conduct that is very similar to that Jimenez engaged in. For
example, on September 21, 2010, an employee was given a verbal written warning for "Poor 50
work performance. Employee is leaving bones when working on breast pulling station." (R. Exh.
JD–57–11
33
35b). On May 4, 2010, an employee was given a verbal written warning for "Cannot keep up 5
cutting tenders. This is unacceptable work performance and will not be tolerated." (R. Exh. 35h).
On November 18, 2009, two employees were given verbal written warnings for "not cutting all
the meat off the whole legs. This is unacceptable work performance and will not be tolerated."
(R. Exhs. 35k and l). I find that the Respondent has demonstrated that it has a consistent policy
of issuing verbal written warnings to employees for poor performance while they were engaged 10
in conduct similar to that of Jimenez. The Acting General Counsel has produced no evidence of
disparate treatment regarding the discipline issued to Jimenez. On the basis of the foregoing, I
find that the Respondent has established that it would have issued a verbal written warning to
Jimenez for his work performance on September 14, 2010, regardless of his union activities. It
has therefore met its burden of establishing a valid Wright Line defense. Accordingly, I shall 15
dismiss paragraph 13 of the complaint.
The Mid-September 2010 8(a)(1) Allegations Involving Jimenez
Paragraph 11(A) of the complaint alleges that on or about September 17, 2010, Cooper, 20
through the Respondent supervisor and translator Carlos Valladares, coercively told an employee
(Jimenez) that he could not time the production lines and that he had to be in the break room
during his break in violation of Section 8(a)(1) of the Act.
Paragraph 11(B) alleges that on September 17, 2010, Cooper, through Valladares, 25
threatened and employee (Jiminez) with unspecified adverse employment action if he protested
not being allowed to time the production lines in violation of Section 8(a)(1).
Jimenez testified that since approximately 2007 he and other employees have timed the
Respondent’s production lines approximately 3 times a day. 31 According to Jimenez, in mid-30
September 2010, while on a break at approximately 7:40 a.m., he decided to check the speed on
line 3. The line was running at 36 chickens per minute. Jimenez reported this to a supervisor
who had the line slowed down. At approximately 9:15 a.m., Jimenez was again on a break and
went to check line 1. Cooper approached Jimenez and told him, in English, that he did not have
the right to check lines during his break and that he should finish his break in the break room.35
Jimenez responded that he did have such a right. At that point, Cooper called over supervisor
Carlos Valladares who interpreted for Cooper from English to Spanish. According to Jimenez,
Valladares told him in Spanish that Cooper had said that "he cannot check, and one more word
from me and he doesn't know what was going to happen."
40
Cooper denied that he told Jimenez in mid-September 2010, that he could not time the
speed of the line. Cooper testified that employees had the right to time the lines and that prior to
October 2010, he observed Jimenez time the lines 5 times a day. Cooper also testified that he
never used Valladares to translate for him because his English was not very good.32
45

31 The Respondent's policy is that lines 1 through 4 should run at 30 chickens per minute. Line 5 runs
somewhat slower because of chronic understaffing and inexperienced employees. Because of the
mechanics of the conveyor belt on the production lines, the lines at times increase in speed without being
directed to do so.
32 Valladares did not testify at the hearing.
JD–57–11
34
Clark testified that in mid-September 2010, she recalled that Jimenez complained to her 5
about not being able to time the lines. She could not recall specifically if he was complaining
about Cooper but "it could have very well been Bernard, I don't recall 100%." (Tr. 866) Clark
recalled that Cooper was present during the conversation Jimenez had with her regarding this
issue. According to Clark, Cooper told Jimenez that he was allowed to time the lines and if there
was an issue with line speed to tell him and that Cooper would time the line with Jimenez and 10
make any necessary corrections. Clark testified she never recalled Cooper using Valladares as a
translator and also testified that Valladares’ English was not very good.
It is undisputed that at a bargaining session held in late October 2010, Mullins raised the
problem of employees not being able to time the lines on their breaks. At this bargaining session, 15
the Respondent agreed that Jimenez and Carmen Beltran, another member of the union
committee, would be provided training on how the time line speeds and would be provided
stopwatches and additional breaks before and after lunch in order to check line speeds. From
early November 2010, until he transferred to the live hang department in December 2010,
Jimenez was afforded the opportunity to time the lines on the extra breaks.20
I credit the testimony of Jimenez over that of Cooper regarding the events of mid
September 2010, when Jimenez attempted to time line 3. In addition to reliance on demeanor
considerations, I find that Jimenez' testimony is entirely plausible since this incident occurred
shortly after he engaged in yet another short strike on September 10. Under these circumstances25
it is entirely plausible that a frustrated Cooper denied Jimenez an opportunity to time a
production line, given the fact that Cooper testified that, prior to this occasion, he observed
Jimenez timing the lines up to 5 times per day. In addition, the credibility of Jimenez is
enhanced by the fact that Clark recalled that he complained about not being able to time the lines
to her. Finally, Mullins raised the fact that employees were being denied the opportunity to time 30
lines at a bargaining session held in October. I doubt that Jimenez would have complained to
Clark or raised the issue with the Union if it had not occurred. The fact that Valladares may not
speak English very well does not dissuade me from crediting Jimenez’ testimony on this issue.
Cooper was in the middle of a conversation with Jimenez when he decided to have the remainder
of it translated and most likely called the most available bilingual supervisor. In addition, the 35
information conveyed was simple in nature and would not require and accomplish translator.
Accordingly, I find that in mid -September 2010, Cooper through Valladares, told Jimenez that
he could not time line 3 on his break and should go to the break room. I also find that Cooper,
through Valladares, said he did not know what would happen to Jimenez if he said "one more
word" about checking the line. The Respondent had acquiesced in the right of employees to time 40
the production lines since approximately 2007. Clearly the speed of the line is a critically
important term and condition of employment given the fast-paced nature of the Respondent’s
processing business. By restricting Jimenez from timing the line and ordering him to the break
room, the Respondent was interfering with the established right of employees to monitor this
important aspect of their working conditions. By such conduct, the Respondent, through Cooper, 45
violated Section 8(a)(1) of the Act. By making an unspecified threat of reprisal if Jimenez
persisted in claiming his right to time the line, the Respondent, through Cooper, further violated
Section 8(a)(1) of the Act .
The Respondent contends that even if I credit Jimenez’ version of his mid-September 50
conversation with Cooper, a remedial order and notice are not warranted pursuant to the
JD–57–11
35
Passavant standards. In this regard, the Respondent points first to Clark's testimony, which I 5
credit, that when Jimenez complained to her about being denied an opportunity to time the lines,
Cooper said that if Jimenez felt that there was an issue with respect to line speed to let him know
and he would time the line with him and make the necessary corrections. The Respondent also
points to the fact that in October, 2010, when Mullins raised the issue of employees not being
able to time lines on their breaks, the Respondent agreed that Jimenez and Beltran would be 10
given training on how to time line speeds, would be provided stopwatches, and be given an
additional two breaks in order to check line speeds. The Respondent's action in this regard are
salutary but are insufficient to comply fully with the Passavant standards since they occurred in
the context of the commission of other unfair labor practices by the Respondent. Accordingly, I
find that a remedial order and notice are necessary with respect to this matter in order to 15
appropriately remedy the violation that occurred.
CONCLUSIONS OF LAW
1. The Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of 20
the Act by:
(a) informing employees they should not live in certain cities because supporters of the
Union would approach them to join the Union;
25
(b) informing employees that it was going to terminate employees who engage in strikes
or other union and protected concerted activities;
(c) soliciting employees to be its’ agent for the purpose of making statements to restrain
or coerce employees in the exercise of their Section 7 rights;30
(d) threatening employees that no wage increases will be granted as long as the Union is
the employees' representative;
(e) creating the impression that it is engaging in surveillance of its employees union 35
activities by keeping a list of union supporters;
(f) threatening employees with termination if they persist in seeking a transfer to a
department populated with union supporters;
40
(g) informing employees that they cannot visit the human resources office or time
production lines during their breaks in retaliation for their union or protected concerted
activities;
(h) threatening employees with unspecified reprisals if they persisted in their right to time 45
production lines during their break.
2. The Respondent has engaged in unfair labor practice in violation of Section 8(a)(3) and
(1) of the Act by discharging Omar Carrion Rivera because he engaged in union and protected
concerted activities in order to discourage employees from engaging in those activities.50
JD–57–11
36
3. The above unfair labor practices affect commerce within the meaning of Section 2(2), 5
(6) and (7) of the Act.
4. The Respondent has not otherwise violated the Act.
REMEDY10
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
15
The Respondent, having discriminatorily discharged Omar Carrion Rivera, must offer
him reinstatement and make him whole for any loss of earnings and other benefits. Backpay shall
be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed Kentucky River Medical Center, 356 NLRB No. 8 (2010).20
The Acting General Counsel seeks an order requiring that the notice in this case should
be posted in English, Spanish, Karen, and Burmese and read to the employees in those four
languages. (AGC's brief, pgs. 37–38)33
25
With respect to the request for the notice to be translated into the languages noted above,
the record establishes that the Respondent has an ethically diverse work force at its Winesburg,
Ohio facility. In February 2010, 82 percent of the Respondent’s work force was Hispanic, many
of whom did not speak fluent English. In this regard, 7 of the 8 employee witnesses called by the
Acting General Counsel required a Spanish translator. At the time the hearing was held, the 30
Respondent’s work force had about 5 to 7 employees who speak the Karen language 34and
approximately 10 employees were from Myanmar and apparently speak Burmese. In order to
best assure that employees understand the contents of the notice, I shall order it to be posted in
English, Spanish, Karen, and Burmese. This is consistent with the Board's policy of ordering
notices to be posted in multiple languages when there is an ethnically diverse work force. New35
England Confectionary Co., 356 NLRB No.68 at sl. op. p. 11 (2010); Alstyle Apparel, 351
NLRB 1287, 1288 (2007); Water’s Edge, 293 NLRB 465 (1989).
With respect to the request to have the notice read, the Board generally provides for such
a remedy in two situations. In the first, the evidence establishes that the unfair practices that have 40
been committed are pervasive and egregious such that a notice reading is necessary to dispel the
effects of such conduct. Homer D. Bronson Co., 349 NLRB 512, 515 (2007); Domsey Trading
Corp., 310 NLRB 777, 779–780’ 813 (1993). While the Respondent’s unfair labor practices in
this case are serious they not so egregious or pervasive that a notice reading in all four languages
is required. Alstyle Apparel., supra, at 1288.45

33 In the complaint the Acting General Counsel also indicated that he was seeking an order requiring
the Respondent to read any notice that was issued in English, Spanish, and Karen.
34 I take administrative notice that the Karen people are a Sino-Tibetan language speaking ethnic
group residing in Myanmar (formerly known as Burma) and Thailand. Wikipedia, 2011.
JD–57–11
37
The Board also finds it appropriate to have a notice read when the evidence establishes 5
that a significant number of the employees are illiterate. Domsey Trading Co., supra, at 813.;
Marine Welding and Repair Works, Inc., 174 NLRB 661, 681 (1969); enfd. 439. F.2d 395, 400
(8th Cir. 1971). In the instant case the evidence establishes that 10 to 20 percent of the Hispanic
employees are illiterate, even in Spanish. Accordingly, in order to ensure that these employees
understand the contents of the notice, I shall order that a responsible official of the Respondent,10
or a Board Agent, shall read the notice in Spanish to employees assembled for that purpose.
However, since there is no evidence indicating that the employees who are conversant in the
three other languages are illiterate in those languages, I shall not order the notice be read in
English, Karen, or Burmese.
15
On these findings of fact and conclusions of law and on the entire record, I issue the following
recommended35
ORDER
20
The Respondent, Case Farms Processing, Inc.,Winesburg, Ohio its officers, agents,
successors, and assigns, shall
1. Cease and desist from
25
(a) Informing employees they should not live in certain cities because supporters of
the Union would approach them to join it.
(b) Informing employees that it was going to terminate employees who engage in
strikes or other union protected concerted activities.30
(c) Soliciting employees to be its agent for the purpose of making statements to
restrain or coerce employees in the exercise of their Section 7 rights.
(d) Threatening employees that no wage increases will be granted so long as the 35
Union is the employees' representative.
(e) Creating the impression that it is engaging in surveillance of its employees’
union activities by stating that it was keeping a list of union supporters.
40
(f) Threatening employees with termination if they persist in seeking a transfer to a
department populated with union supporters.
(g) Informing employees that they cannot visit the human resources office or time
production lines during their breaks in retaliation for their union or protected 45
concerted activities.

35 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–57–11
38
(h) Threatening employees with unspecified reprisals if they persist in their right to 5
time production lines.
(i) Discharging employees because of their union or protected concerted activities.
(j) In any like or related manner interfering with, restraining, or coercing its 10
employees in the exercise of their Section 7 rights.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Omar Carrion Rivera 15
full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Omar Carrion Rivera whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the manner set forth in the remedy 20
section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify Rivera in writing, in
English and Spanish, that this has been done and that the discharge will not be used against him 25
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 designated by
the Board or its agents, all payroll records, social security payment records, timecards, personnel 30
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Winesburg, 35
Ohio copies of the attached notice marked “Appendix”36 in English, Spanish, Karen, and
Burmese. Copies of the notice, on forms provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places including all places where notices
to employees are customarily posted. In addition to physical posting of paper notices, the notices 40
shall be distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of
45

36 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–57–11
39
these proceedings, the Respondent has gone out of business or closed the facility involved in 5
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since August 1, 2010.
(f) Within 14 days after service by the Region, post at its facility in Winesburg, 10
Ohio copies of the attached notice marked “Appendix”37 in English, Spanish, Karen, and
Burmese. Copies of the notice, on forms provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places including all places where notices
to employees are customarily posted. In addition to physical posting of paper notices, the notices 15
shall be distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in 20
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since August 1, 2010.
(g) Convene, during working hours, employees for whom Spanish is their primary 25
language and have a responsible official of the Respondent, fluent in Spanish, or a designee of
the Regional Director of Region 8, read the notice in Spanish. The Regional Director for Region
8 shall be afforded a reasonable opportunity to provide for the attendance of a Board agent and
additional translators of the Regional Director’s choosing.
30
(h) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
(i) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it 35
alleges violations of the Act not specifically found.
Dated, Washington, D.C., September 16, 2011.
40
____________________
Mark Carissimi
Administrative Law Judge
45

37 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–57–11
Winesburg, OH
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT inform employees they should not live in certain cities because
supporters of the United Food and Commercial Workers Union, Local No.880 (the
Union) will approach them to join it.
WE WILL NOT tell employees that we are going to terminate employees who participate
in strikes or other union and protected concerted activities.
WE WILL NOT solicit employees to be our agent for the purpose of making statements
to restrain or coerce employees in the exercise of rights under the Act.
WE WILL NOT threaten employees that no wage increases will be granted as long as the
Union is the employee's representative.
WE WILL NOT create the impression that we are engaging in surveillance of our
employees union activities by stating that we are keeping a list of union supporters.
WE WILL NOT threaten employees with termination if they persist in seeking a transfer
to a department populated with union supporters.
WE WILL NOT inform employees that they cannot visit the human resources office or
time production lines during their breaks in retaliation for their union or protected
concerted activities.
WE WILL NOT make unspecified threats of reprisal to employees if they persist in their
right to time production lines.
WE WILL NOT discharge employees or otherwise discriminate against employees
because they engaged in union or protected concerted activities.
JD–57–11
41
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of the Board's Order, offer Omar Carrion Rivera
full reinstatement to his former job, or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or privileges
previously enjoyed.
WE WILL make whole Omar Carrion Rivera for any loss of earnings and other benefits
suffered as a result of our discrimination against him, with interest.
WE WILL within 14 days from the date of the Board's Order, remove from our files any
reference to the unlawful discharge of Rivera, and within 3 days thereafter notify him in
writing, in Spanish and English, that this has been done and his discharge will not be used
against him in any way.
CASE FARMS PROCESSING, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1240 East 9th Street, Room 1695, Cleveland, OH 44199-2086
(216) 522-3715, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (216) 522-3740.