D&F Industries, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 2003

339 N.L.R.B. 618 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
D&F Industries, Inc., and Staffing Services America,
Inc. (“Olsten”) and United Food & Commercial
Workers Union, Local 324, United Food &
Commercial Workers International Union,
AFL–CIO–CLC. Cases 21–CA–32952 and 21–
CA–32973
July 14, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On August 9, 2000, Administrative Law Judge Ber-
nard Litvack issued the attached decision. Respondent
D&F, Respondent Olsten, and Charging Party Local 324
filed exceptions and supporting briefs; the General
Counsel filed cross-exceptions, a supporting brief, and an
answering brief; and D&F and Olsten filed answering
briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
only to the extent consistent with this Decision and Or-
der.3 Specifically, contrary to the judge, we find that

1 Respondent D&F has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Respondent Olsten has excepted to the judge’s conclusion that it is
liable for the unfair labor practices of D&F. We agree with the judge,
for the reasons he discussed, that Olsten is liable for the discriminatory
layoffs by D&F in accordance with Capitol EMI Music, 311 NLRB 997
(1993). As the judge found, Olsten’s on-site manager, Carmen Reyes,
attended and participated in translating Chief Operating Officer How-
ard Simon’s speech to employees in which he, inter alia, stated that
D&F would never deal with a third party, threatened plant closure, and
impliedly threatened discharge in retaliation for the employees’ union
activities. With this notice of D&F’s antiunion animus, Olsten was
liable for carrying out the subsequent discriminatory layoffs directed by
D&F. In addition, as a joint employer, Olsten is liable for the coercive
conduct of D&F in violation of Sec. 8(a)(1). See, e.g., Windemuller
Electric, 306 NLRB 664, 666 (1992).
In adopting the judge’s conclusion that Simon unlawfully threatened
employees that if they went on strike they would be replaced, Chairman
Battista relies on the context in which the remark was made, and spe-
cifically on Simon’s threat in the same speech that employees could go
on strike but they were all going to be dismissed. Chairman Battista
does not rely on Simon’s failure to provide a more complete explana-
tion of the respective reinstatement rights of economic and unfair labor
practice strikers.
3 We shall modify the judge’s recommended Order in accordance
with our decisions in Ferguson Electric Co., 335 NLRB 142 (2001);
Maria Paz-Vasquez and Rosa Jaramillo were agents of
D&F; that certain unlawful conduct by them is therefore
attributable to D&F; and that the July 7, 19984 layoffs of
employees Claudia Mayne, Abigail Reyes, Carolina
Orozco, and Salud Soria, and the September 9 layoff of
Maria Jaramillo violated Section 8(a)(1) and (3).
I. CONDUCT OF PAZ-VASQUEZ AND ROSA JARAMILLO
A. Facts
Paz-Vasquez and Rosa Jaramillo, at the time relevant
to this proceeding, served as assistants to the packaging
manager at D&F’s packaging facility on North Hariton
Street in Orange, California.5 The management structure
of the Hariton facility included Howard Simon, chief
operating officer of Global Health Systems, D&F’s par-
ent corporation; Pete Pescetti, D&F’s vice president of
operations; Steve Posey, plant manager; and various de-
partment managers. Margarido (Lucho) Lopez served as
manager of the packaging department, in which 140–150
employees worked in two shifts. On the first shift, two
assistants to the packaging manager, Eduardo Cavallero
and Rosa Jaramillo, reported directly to Lopez. On the
second shift, a shift supervisor, initially Jose Perez and
subsequently Olmedo Duque, reported to Lopez, and two
assistants to the packaging manager, Navijio Vargas and
Paz-Vasquez, were subordinate to the shift supervisor.
Lopez testified that all of the assistants had the same du-
ties and responsibilities. In addition, a line coordinator
monitored production on each of the five production
lines, and a lead person assigned the various line jobs to
employees each day.6
As assistants to Packaging Manager Lopez, Paz-
Vasquez and Rosa Jaramillo were responsible for ensur-
ing both that the packaging process operated on schedule
and that the employees worked productively. The judge

Indian Hills Care Center, 321 NLRB 144 (1996); and Excel Container,
325 NLRB 17 (1997).
We shall also substitute a new notice in accordance with our recent
decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
4 All dates are 1998 unless otherwise indicated.
5 During the period relevant to this proceeding, D&F’s facilities, in-
cluding the Hariton facility in Orange, California, and the Gene Autry
facility in Anaheim, California, were staffed by D&F’s own employees
and employees supplied by Olsten, working side-by-side. The judge
found, and we agree, that D&F and Olsten were joint employers of the
supplied employees, who represented approximately 40 to 50 percent of
D&F’s total work force or about 200–245 employees. In adopting the
judge’s conclusion, however, we do not rely on his characterization of
D&F’s supervision of the supplied employees as minimal because, as
the judge found, D&F assigned the employees to their daily jobs and
monitored their performance of their duties and their compliance with
D&F’s work rules.
6 In addition, Olsten maintained an on-site manager at D&F, Carmen
Reyes, who hired the supplied employees and was involved in such
matters as discipline, attendance, and benefits. She did not supervise
the employees’ performance of their duties for D&F.
339 NLRB No. 73
D&F INDUSTRIES 619
found that the assistants gave assignments to the line
coordinators at the beginning of the shift and oversaw
operations to make sure that the machines functioned
properly, that production lines were adequately staffed
and supplied, and that orders were filled appropriately.
Camerina Calderon, whose testimony the judge credited,
testified that in department meetings, Lopez told the em-
ployees “time after time” that Paz-Vasquez was their
supervisor. In addition, Paz-Vasquez and Rosa Jaramillo
observed employees to ensure that they did not talk ex-
cessively or spend too much time in the restroom. Paz-
Vasquez and Rosa Jaramillo confronted employees con-
cerning their misconduct in these matters, as well as tar-
diness, and reminded them of the Respondent’s rules.
The assistants reported repeated infractions to Lopez.
Lopez also routinely sought oral evaluations from the
assistants concerning employee performance.
The assistants moved employees from one production
line to another as needed to respond to staffing shortages
or during product changes on a line. When Pescetti or
Posey decided that overtime work was necessary, Lopez
informed the assistants how many employees would be
required, and the assistants would seek volunteers to stay
after their shift. Paz-Vasquez and Rosa Jaramillo also
authorized employees to leave work early or take time
off in the case of an emergency or illness. On a day-to-
day basis, the employees brought their work problems
and complaints to the assistants, who would resolve them
or convey them to Lopez.
According to the credited testimony of Calderon, on
July 7, the day the Respondent laid off some of the pack-
aging department employees, she overheard a conversa-
tion between Line Coordinator Luz Figueroa and Paz-
Vasquez before the start of her shift. Figueroa asked
Paz-Vasquez what had happened to her employees and
stated that she needed them, and Paz-Vasquez answered
that “they were never going to show because they were
fired” and that “she had [let them go] by orders from
upstairs” for signing union cards. Paz-Vasquez added
that “that’s the way they all going to be leaving, all the
ones who signed . . . union cards.”
The judge also found that Rosa Jaramillo telephoned
Maria Jaramillo, her sister-in-law, in August and asked
her whether she had joined the Union. Although Maria
Jaramillo had signed an authorization card, she re-
sponded that she had not. Maria Jaramillo testified that
Rosa Jaramillo said that, “Lucia Reyes had told her that
she knew that I had joined up with the Union and that I
had signed . . . a card.” Rosa Jaramillo added, “Lucho
Lopez already knows that you joined up with the Union
and he knows everything.”
B. Analysis
In determining whether an employee is an agent of an
employer and thus whether his or her conduct is attribut-
able to the employer, the Board applies common law
agency principles. If the employee acted with the appar-
ent authority of the employer with respect to the alleged
unlawful conduct, the employer is responsible for the
conduct. “Apparent authority results from a manifesta-
tion by the principal to a third party that creates a reason-
able basis for the latter to believe that the principal has
authorized the alleged agent to perform the acts in ques-
tion.”7 As the judge stated, the Board considers whether,
under all the circumstances, the employee would rea-
sonably believe that the alleged agent “was reflecting
company policy and speaking and acting for manage-
ment.”8 Section 2(13) states that “whether the specific
acts performed were actually authorized or subsequently
ratified shall not be controlling.”
The position and duties of the employee alleged to be
an agent are relevant in determining agency status.9
Thus, an employee’s statement may be attributed to the
employer if the employee is “held out as a conduit for
transmitting information [from the employer] to the other
employees.”10 The Board also considers whether the
alleged agent’s statements or conduct were consistent
with those of the employer.11
Contrary to the judge, we find that Paz-Vasquez and
Rosa Jaramillo were agents of D&F under Section 2(13)
with respect to the coercive statements described above.
As an integral function of their positions, Paz-Vasquez
and Rosa Jaramillo served as conduits between manage-
ment and the employees. On a daily basis, the Respon-
dent relied on them to convey information and decisions
pertaining to production and work rules to employees on
the packaging lines. They informed line coordinators
and employees of the products to be packaged on each
shift. They moved employees from one line to another
as needed due to staffing shortages or product changes.
They administered the Respondent’s policies regarding
overtime and time off for illness or emergencies. They
enforced its rules concerning restroom time, talking, and
tardiness. In all of these matters, the assistants spoke to
employees as the representatives of management and the
record shows that the employees perceived them as such.

7 Cooper Industries, 328 NLRB 145 (1999); see also Pan-Oston Co.,
336 NLRB 305, 306 (2001), and cases cited therein.
8 Id. (Citations omitted.)
9 Pan-Oston, supra at 306; Jules V. Lane, 262 NLRB 118, 119
(1982).
10 Cooper Industries, supra at 145; Debber Electric, 313 NLRB
1094, 1095 (1994).
11 Hausner Hard-Chrome of KY, 326 NLRB 426, 428 (1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620
Moreover, Lopez repeatedly told employees that Paz-
Vasquez was their supervisor.
D&F also relied on the assistants to report to Lopez
pertinent information about employees. They informed
him of repeated rules infractions and responded to his
regular inquiries about employee performance. In addi-
tion, the assistants relayed to management employee
problems and complaints.
In these circumstances, we conclude that employees
had a reasonable basis to believe that the assistants’
statements to them were based on knowledge and appar-
ent authority from D&F. Specifically, employees would
reasonably believe that Paz-Vasquez and Rosa Jaramillo
spoke for management and reflected D&F’s policies in
their conversations with Figueroa and Maria Jaramillo,
respectively. Figueroa, as well as Calderon, who over-
heard the conversation, had no reason to doubt that Paz-
Vasquez knowledgeably and accurately reported that
D&F fired the department employees because they had
signed union cards, and that it intended to discharge
other employees who also signed cards. In the same
manner, Maria Jaramillo would reasonably believe that
Rosa Jaramillo interrogated her on D&F’s behalf as to
whether she had signed an authorization card, and re-
flected management knowledge when she said that Lopez
knew that she had signed a card. Each of these employ-
ees was accustomed to receiving authoritative informa-
tion on both personnel policies and production matters
from D&F through the assistants, and would reasonably
view these conversations in light of that experience.
Moreover, the statements made by Paz-Vasquez and
Rosa Jaramillo were consistent with other coercive
statements and conduct by D&F. In late June or early
July, Howard Simon, the chief operating officer of
D&F’s parent corporation, spoke to an audience of 60 to
75 second-shift employees. According to the testimony
of Calderon, whom the judge credited, Simon told the
employees that people who had signed cards “were going
to be taken away from the plant.” Simon’s threat of dis-
charge no doubt heightened the perceived reliability of
Paz-Vasquez’s explanation for the employees’ absence
from the plant less than 2 weeks later, as well as the seri-
ousness of her own prediction that other employees who
signed cards were “going to be leaving.” Similarly, Rosa
Jaramillo’s interest in whether Maria Jaramillo had
signed an authorization card and her statement that Lo-
pez knew that she had done so were consistent with
Simon’s statements that he knew some employees were
talking about union authorization cards, that D&F would
not let the Union in, and that those who signed cards
would be discharged. In view of these statements, which
made clear Simon’s animus and intent to retaliate against
employees who supported the Union, Maria Jaramillo
would reasonably understand Rosa Jaramillo’s question-
ing as an attempt to verify whether she was one of the
Union’s supporters and as a warning that D&F was
aware of her union activity.
For the reasons discussed above, we conclude that Paz-
Vasquez and Rosa Jaramillo acted as agents of D&F
when they made the coercive statements to Figueroa and
Maria Jaramillo, respectively.12 Therefore, we conclude
that D&F violated Section 8(a)(1) by interrogating em-
ployees regarding their union activities, creating the im-
pression that those activities were under surveillance, and
telling employees that other employees were fired be-
cause they signed union authorization cards.13

12 Great American Products, 312 NLRB 962 (1993).
13 The complaint alleged that Paz-Vasquez and Rosa Jaramillo fur-
ther violated Sec. 8(a)(1) by other interrogations, threats of discharge,
and statements that the employees’ support of the Union would be
futile. We find it unnecessary to pass on these allegations, because they
are cumulative with other violations found and would not affect the
remedy.
In finding that Paz-Vasquez’ statement that Orozco and Abigail
Reyes had been fired for signing union authorization cards violated
Sec. 8(a)(1), we find that this matter, although not alleged in the com-
plaint, was closely connected to the subject matter of other complaint
allegations, and was fully litigated at the hearing. See Pergament
United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir.
1990). Paz-Vasquez testified on behalf of the Respondent after
Calderon’s testimony had already raised the issue of this statement. In
questioning Paz-Vasquez, moreover, Counsel for D&F treated the
statement as an issue requiring rebuttal testimony in the same manner
as the allegations contained in the complaint. After questioning Paz-
Vasquez about the discharges of Orozco and Abigail Reyes, as to which
Paz-Vasquez testified that she had no knowledge, Counsel for D&F
elicited from Paz-Vasquez a sequence of general denials of the alleged
violations of Sec. 8(a)(1) attributed to her. The seventh of nine such
exchanges pertained to the statement raised in Calderon’s testimony.
Q. Did you ever, at anytime, say that employees had been
fired for signing union authorization cards?
A. No.
Paz-Vasquez’ denial, if credited, would have precluded a finding of
a violation of Sec. 8(a)(1) based on this statement. Under these circum-
stances, we find that the Respondent was on notice that the statement
was an issue in the proceeding and treated it as such. Therefore, we
find it appropriate to find the violation.
Chairman Battista would not find a separate violation based on Paz-
Vasquez’ statement because it was not alleged in the complaint. More-
over, counsel for the General Counsel never amended the complaint to
include this allegation, even though, at the end of Calderon’s testimony,
the General Counsel amended the complaint to include allegations
concerning other matters. Thus, D&F could reasonably believe that
Calderon’s testimony related to other matters, e.g., the 8(a)(3) allega-
tions. That is, Calderon’s testimony lends support to the allegation that
Orozco and Reyes were fired for union activity. D&F, in defense of the
8(a)(3) allegation, would seek to contradict that testimony. Thus, the
testimony and counter-testimony does not show that D&F was aware
that it was being accused of an 8(a)(1) violation.
Pergament, cited by my colleagues, requires that matters be fully
and fairly litigated. Due process requires that respondents be put on
clear notice of all allegations against them in order to have the opportu-
D&F INDUSTRIES 621
II. LAYOFFS OF EMPLOYEES CLAUDIA MAYNE, ABIGAIL
REYES, CAROLINA OROZCO, AND SALUD SORIA
A. Facts
D&F conducted a series of layoffs at the Hariton fa-
cility during the summer and early fall, based on a re-
duction in work. Simon testified that 90 percent of the
work of D&F’s packaging department was produced for
one customer, Herbal Life International (Herbal Life).
Under a newly negotiated contract, however, Herbal
Life was obligated to offer D&F only 80 percent of its
manufacturing needs, rather than a right of first refusal
for all of its requirements. According to Simon, the
resulting reduction of work caused D&F to reduce the
number of temporary employees, i.e., those jointly em-
ployed by Olsten, in the packaging department. The
record shows that 10 employees, including Orozco,
Mayne, Soria, and Abigail Reyes, were laid off on July
7. In addition, D&F laid off 20 employees at Hariton in
June; 9 in September, including Maria Jaramillo and
Silvia Martinez;14 and 14 in October. Lopez and Plant
Manager Posey decided which employees would be laid
off. Lopez testified that he based his selections on em-
ployee performance, attendance, and seniority, relying
on his own observations and his notes concerning
comments he received from his assistants during the
year. Posey did not testify at the hearing.
Orozco, Mayne, Soria, and Abigail Reyes all worked on
the same packaging line on the second shift at the Hariton
facility, with line coordinator Figueroa, and each had
signed an authorization card for the Union. On July 7,
Orozco and Mayne each received a telephone call at home
from Olsten On-Site Manager Carmen Reyes. Carmen
Reyes informed Orozco that she did not have a job any
longer because “there was no more work” at the plant.
Similarly, Carmen Reyes told Mayne “that she was sorry
but that she had to lay me off . . . because the production
had lessened.” Soria and Abigail Reyes reported for work
on July 7 and were instructed to go to Carmen Reyes’ of-
fice. There, Carmen Reyes told Soria that “there was no
more work for me any longer,” and told Abigail Reyes that
she was being laid off indefinitely.
As discussed above, when line coordinator Figueroa
asked Paz-Vasquez what happened to her workers be-
cause she needed them to get to work, Paz-Vasquez re-
sponded that “they were never going to show because

nity to present an appropriate defense. In this case, Chairman Battista
finds that D&F was not put on clear notice that Paz-Vasquez’ statement
was being attacked under Sec. 8(a)(1). Therefore, the finding of a
violation is a denial of due process.
14 The layoff of Maria Jaramillo is discussed infra. The judge found,
and we agree, that the layoff of Martinez was based on her union activi-
ties and thus violated Sec. 8(a)(1) and (3).
they were fired.” Paz-Vasquez added that “she wanted to
know how the Union was going to protect Abigail and
Carolina” and that “that’s the way they [sic] all going to
be leaving, all the ones who signed them cards, them
union cards.” Moreover, Paz-Vasquez also stated that
“she had let them go on orders from upstairs” for signing
union cards.
B. Analysis
The General Counsel alleged that the Respondents se-
lected Orozco, Abigail Reyes, Mayne, and Soria for lay-
off because of their union activities, in violation of Sec-
tion 8(a)(1) and (3).15 Applying Wright Line,16 the judge
found that the General Counsel failed to satisfy his initial
burden of showing that the Respondents’ action was mo-
tivated by antiunion animus. Although he found that the
record showed animus on the part of the D&F and union
activities by the employees, the judge determined that the
record did not demonstrate that D&F had knowledge or
suspicions of the employees’ activities. Specifically, the
judge found that Paz-Vasquez’ comment that Orozco and
Abigail Reyes were fired for signing union cards was not
attributable to D&F because she was neither a supervisor
nor an agent. Because the record did not show that Paz-
Vasquez was involved in the decisionmaking concerning
the layoffs, the judge viewed her statement as opinion
and self-aggrandizement.
We agree with the judge that the record amply demon-
strates that Orozco, Abigail Reyes, Mayne, and Soria
engaged in union activity and that D&F harbored animus
against the Union. Contrary to the judge, however, we
find that the record contains evidence that D&F knew of
the employees’ union activities.
As we found above, Paz-Vasquez was an agent of
D&F and served as a conduit for information between
packaging department employees and D&F management.
We have also found that, in her capacity as an agent, Paz-
Vasquez informed employees that Orozco and Abigail
Reyes were fired and that she let them go “by orders
from upstairs” for signing union cards. This statement,
attributable to D&F, demonstrates that D&F had knowl-
edge of Orozco and Abigail Reyes’ union activities. We
therefore find, contrary to the judge, that the General
Counsel satisfied his initial burden of showing that the
15 The General Counsel does not allege that the layoffs in general
were initiated by D&F for pretextual reasons. The Union excepts,
however, to the judge’s failure to consider such a “mass layoff” theory.
We agree with the judge that the General Counsel did not pursue this
theory. It is well established that the General Counsel’s theory of the
case is controlling, and that a charging party cannot enlarge on or
change that theory. Raley’s, 337 NLRB 719 (2002).
16 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622
selection of Orozco and Abigail Reyes for layoff was
motivated by antiunion animus.
Paz-Vasquez did not mention Mayne and Soria by
name, as she did Orozco and Abigail Reyes. However,
even without such direct evidence, we find that the Gen-
eral Counsel also satisfied his initial burden concerning
these allegations, including that D&F had knowledge of
their union activities.

It is well established that, in the absence of direct evi-
dence, an employer’s knowledge of an employee’s un-
ion activities may be proven by circumstantial evidence
from which a reasonable inference may be drawn.
Such circumstances may include the employer’s dem-
onstrated knowledge of general union activities, the
employer’s demonstrated union animus, the timing of
the discipline or discharge, and pretextual reasons for
the discipline or discharge asserted by the employer.17

Based on these factors, we find that the record in this case
warrants an inference of D&F’s knowledge of the union
activities of Mayne and Soria.
The judge found, and we agree, that D&F was well
aware of the general union activity among its employees
and that it harbored antiunion animus. Simon’s speech to
employees in late June or early July, in which, among
other things, he threatened discharge and plant closure in
retaliation for employee support of the Union, vividly il-
lustrates his knowledge and animus regarding the organiz-
ing campaign. Mayne and Soria’s layoffs occurred less
than 2 weeks after Simon’s speech and on the same day
that Orozco and Abigail Reyes were laid off, according to
Paz-Vasquez, for signing union cards. Finally, although
D&F asserted that the layoffs of these and other employ-
ees were necessitated by decreased demand, it offered no
rationale for selecting Mayne and Soria for layoff. Lopez
decided which employees to layoff, along with Plant Man-
ager Posey, who did not testify. Lopez testified that he
had no problem with either employee. We find these cir-
cumstances sufficient to support an inference that D&F
was aware of Mayne and Soria’s union activities at the
time of their selection for layoff. Therefore, we find that
the General Counsel has satisfied his initial burden under
Wright Line regarding these employees.18

17 Pan-Oston, supra, 336 NLRB at 308 (citations omitted). See also
Abbey’s Transportation Services v. NLRB, 837 F.2d 575, 579 (2d Cir.
1988).
18 Contrary to his colleagues, Chairman Battista would not infer that
D&F possessed knowledge of Mayne and Soria’s union activities. He
recognizes that the element of knowledge can be inferred from circum-
stantial evidence if direct evidence is lacking. However, knowledge is
a separate element of the General Counsel’s prima facie case. Where,
as here, the finding is inferred from the other elements of the General
Counsel’s prima facie case, such finding essentially negates knowledge
The General Counsel having met the initial burden
with respect to Orozco, Abigail Reyes, Mayne, and
Soria, we next consider whether D&F has demonstrated
that it would have selected these employees for layoff in
the absence of their union activities. Lopez offered no
basis for selecting Orozco, Mayne, or Soria for layoff.
He testified that he selected Abigail Reyes for layoff
because she worked more slowly than other employees.
However, Lopez presented no explanation for this deter-
mination, except for a general statement that he had ob-
served her. In addition, he admitted that he had never
told anyone, including Abigail Reyes, that she worked
too slowly, and had not followed the established policy
of informing Olsten when one of its employees was not
performing well.
In view of D&F’s failure to show any reason for se-
lecting Orozco, Mayne, and Soria for layoff, or to pro-
vide any support for Lopez’ general assertion that Abi-
gail Reyes worked more slowly than other employees,
we find that D&F failed to demonstrate that it would
have laid off these employees in the absence of their un-
ion activities. Therefore, we conclude that these layoffs
violated Section 8(a)(1) and (3).
III. LAYOFF OF MARIA JARAMILLO
A. Facts
Maria Jaramillo worked on the first shift in the packag-
ing department at the Hariton facility. She signed a un-
ion authorization card in mid-June, when a union agent
visited her home. In August, as described above, Rosa
Jaramillo telephoned her and asked whether she had
signed a card. Even though Maria Jaramillo denied sign-
ing a card, Rosa Jaramillo went on to state that Lopez
already knew that she had signed one and that he knew
everything. On September 8, Maria Jaramillo was laid
off with eight other employees, including discriminatee
Martinez.19

as a separate element. Nor do the factors in Pan-Oston and Abbey’s
Transportation supply the requisite knowledge. Animus and timing are
part of a prima facie case. General knowledge of union activity does
not show knowledge of union activity of particular employees. Pretext
is an ultimate conclusion in an 8(a)(3) case; it is not a factor showing
the element of knowledge. Thus, Chairman Battista agrees with the
judge that the General Counsel has failed to demonstrate knowledge,
and thus to satisfy his initial burden under Wright Line. Therefore, he
would adopt the judge’s dismissal of the complaint allegations regard-
ing the layoffs of Mayne and Soria.
Contrary to the suggestion of Chairman Battista, we find that knowl-
edge here is not inferred wholly from the other elements of the General
Counsel’s initial burden, i.e., the employees’ participation in union
activity and the Respondent’s animus toward such activities, but rather
relies on the additional factors delineated in Pan-Oston and Abbey’s
Transportation, supra.
19 In finding that D&F violated Sec. 8(a)(1) and (3) by selecting
Martinez for layoff, the judge found that, when Martinez handed Lopez
D&F INDUSTRIES 623
When Carmen Reyes telephoned Maria Jaramillo to in-
form her of her layoff, she told Maria Jaramillo that there
was nothing wrong with her but that, according to Lopez,
there was no more work. Carmen Reyes further said that
she would get Maria Jaramillo a job with another com-
pany. Maria Jaramillo testified that when she was laid
off, some employees with less seniority remained.
Lopez testified that he selected Maria Jaramillo for
layoff because she spent too much time in the restroom
and used bad language. He testified that there had been a
“couple of incidents” when she used “offensive, bad lan-
guage” to other employees, and that some employees had
complained to him. He further testified that he investi-
gated and heard her use foul language once near the
lunch truck. With respect to the time she spent in the
restroom, Lopez testified that he investigated and found
that, when she went into the restroom, she spent 10 to 15
minutes there. However, Lopez never spoke with Maria
Jaramillo about either problem. He testified that he told
“someone from Olsten,” but could not recall whom, that
an employee was using foul language. The judge found
that Carmen Reyes did not corroborate his testimony.
Although Lopez testified that he would not have fired
Maria Jaramillo for the misconduct he cited, he noted on
the layoff notice to Carmen Reyes that he did not want
her back.
B. Analysis
The judge found, as he did regarding the four employ-
ees laid off on July 7, that the General Counsel failed to
meet the initial burden under Wright Line, because the
record did not show that D&F had knowledge of Maria
Jaramillo’s union activities.20 The judge found that Rosa
Jaramillo telephoned Maria Jaramillo and warned her
that Lopez knew that she signed a union authorization
card. However, the judge further found that, because
Rosa was neither a supervisor nor an agent of D&F, her
statement was not attributable to D&F. Finally, the
judge found that there was no evidence that Rosa
Jaramillo was privy to D&F’s layoff decisions.
Contrary to the judge, we find that the record demon-
strates D&F’s knowledge of Maria Jaramillo’s union
activities. We have found that Rosa Jaramillo was an
agent of D&F and that D&F was liable for her statement
to Maria Jaramillo that Lopez knew that she had signed a
union authorization card. We therefore find that the

an envelope containing a letter identifying her as a union supporter and
said that she wanted to be known as a member of the Union, Lopez
warned, “[do] you think that paper is going to help you in any way
when they fire you . . . they are going to dismiss you for having deal-
ings with the Union.”
20 The judge found, and we agree, that Maria Jaramillo engaged in
union activities and that D&F demonstrated antiunion animus.
General Counsel satisfied the initial burden under Wright
Line to show that Maria Jaramillo’s layoff was motivated
by antiunion animus.
Moreover, we find that D&F failed to show that it
would have laid off Maria Jaramillo in the absence of her
union activities. Lopez testified that he selected her for
layoff because she used bad language and spent too
much time in the restroom. However, he had never
brought either issue to her attention. He testified that he
had mentioned the problem of bad language to “someone
at Olsten,” but Carmen Reyes did not corroborate his
testimony. In fact, at the time of the layoff, she told
Maria Jaramillo that there was nothing wrong with her.
We recognize that evidence of excessive time in the
restroom or foul language, if credited, could provide a
reasonable basis for selecting one employee over another
for layoff. In this case, the evidence fails to persuade us
that D&F based its decision on these factors. The only
evidence regarding Maria Jaramillo’s alleged excessive
time in the restroom was provided by Lopez, whose tes-
timony the judge credited only where corroborated by
Calderon. Here there was no such corroboration. The
record does not indicate that Lopez viewed either of the
problems he cited as particularly serious, since he did not
bring them to Maria Jaramillo or Carmen Reyes’ atten-
tion and would not have discharged her because of them.
Nonetheless, in the memo informing Carmen Reyes of
Maria Jaramillo’s layoff, he noted that D&F did not want
her back. Although this notation appears to contradict
Lopez’ previous approach to her conduct problems, it is
consistent with his threat to Martinez, who was laid off at
the same time, that “they are going to dismiss you for
having dealings with the Union.” It is also consistent
with Rosa Jaramillo’s warning to her sister-in-law that
Lopez knew she had signed an authorization card for the
Union, and Simon’s statement that employees who sup-
ported the Union would be discharged. Based on these
circumstances, we conclude that D&F selected Maria
Jaramillo for layoff because of her union activities in
violation of Section 8(a)(1) and (3).
ORDER
The Respondents, D&F Industries, Inc., Orange, Cali-
fornia, and Staffing Services of America, Inc. (“Olsten”),
Anaheim, California, their officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Informing employees that Respondent D&F would
never deal with a third party, thereby warning employees
that their support for the Union would be futile.
(b) Informing employees that the doors were open for
them to work elsewhere if the Union was coming in,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624
thereby impliedly threatening employees with discharge
because of their support for the Union.
(c) Threatening employees with discharge if they en-
gaged in a strike against Respondent D&F.
(d) Without distinguishing between economic and un-
fair labor practice strikers and between permanent and
temporary replacements, informing employees that they
would be replaced if they engaged in a strike.
(e) Soliciting grievances from employees in order to
induce them to cease supporting the Union.
(f) Promising benefits to employees in order to induce
them to cease supporting the Union.
(g) Threatening to close the plant because of their em-
ployees’ support for the Union.
(h) Threatening employees with discharge because
they engaged in activities in support of the Union.
(i) Coercively interrogating employees concerning
their union activities.
(j) Laying off employees because they engaged in ac-
tivities in support of the Union.
(k) Creating the impression that the employees’ union
activities are under surveillance.
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Silvia Martinez, Jose Luis Rivera, Carolina Orozco, Abi-
gail Reyes, Claudia Mayne, Salud Soria, and Maria
Jaramillo immediate and full reinstatement to their for-
mer jobs or, if the jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights and privileges of employment previ-
ously enjoyed.
(b) Make Silvia Martinez, Jose Luis Rivera, Carolina
Orozco, Abigail Reyes, Claudia Mayne, Salud Soria, and
Maria Jaramillo whole for any loss of earnings and other
benefits suffered as a result of their unlawful discrimina-
tory conduct in the manner set forth in the remedy sec-
tion of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from their respective files any reference to the unlawful
layoffs of employees Silvia Martinez, Jose Luis Rivera,
Carolina Orozco, Abigail Reyes, Claudia Mayne, Salud
Soria, and Maria Jaramillo and, within 3 days thereafter,
notify each employee in writing that this has been done
and that their unlawful layoffs will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of the records if stored in electronic
form, necessary to analyze the amount of backpay due
under terms of this Order.
(e) Within 14 days after service by the Region, Respon-
dent D&F shall post at its facilities in Anaheim and Ana-
heim Hills, California, and Respondent Olsten shall post at
its office in Anaheim, California, copies of the attached
notice, in Spanish and English, marked “Appendix.”21
Copies of the notice, on forms provided by the Regional
Director of Region 20, after being signed by the Respon-
dents’ authorized representatives, shall be posted by the
Respondents immediately upon receipt and maintained for
60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents to
ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pend-
ency of these proceedings, either Respondent has gone out
of business or closed the facilities involved in these pro-
ceedings, 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 June 1, 1998.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps that each Respondent has taken to
comply.
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 bene-
fit and protection

21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
D&F INDUSTRIES 625
Choose not to engage in any of these protected
activities.

WE WILL NOT inform you that D&F Industries, Inc.
will never deal with a third party, thereby warning you
that your support for United Food & Commercial Work-
ers Union, Local 324, United Food & Commercial
Workers International Union, AFL–CIO–CLC (the Un-
ion) would be futile.
WE WILL NOT inform you that the doors are open for
you to work somewhere else if the Union comes in,
thereby impliedly threatening you with discharge be-
cause of your support for the Union.
WE WILL NOT threaten you with discharge if you en-
gage in a strike against D&F Industries, Inc.
WE WILL NOT, without distinguishing between eco-
nomic and unfair labor practice strikers and between
permanent and temporary replacements, inform you that
you would be replaced if you engaged in a strike.
WE WILL NOT solicit grievances from you in order to
induce you to cease supporting the Union.
WE WILL NOT promise benefits to our employees in or-
der to induce you to cease supporting the Union.
WE WILL NOT threaten you with discharge because you
engage in activities in support of the Union.
WE WILL NOT threaten you with plant closure because
of your support for the Union.
WE WILL NOT coercively interrogate you concerning
your union activities.
WE WILL NOT lay you off because you engaged in ac-
tivities in support of the Union.
WE WILL NOT create the impression that your union ac-
tivities are under surveillance.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of the date of the Board’s
Order, offer Silvia Martinez, Jose Luis Rivera, Carolina
Orozco, Abigail Reyes, Claudia Mayne, Salud Soria, and
Maria Jaramillo full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights and privileges previously enjoyed.
WE WILL make Silvia Martinez, Jose Luis Rivera,
Carolina Orozco, Abigail Reyes, Claudia Mayne, Salud
Soria, and Maria Jaramillo whole, with interest, for any
loss of pay and benefits resulting from their unlawful
layoffs, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs of Silvia Martinez, Jose Luis Rivera, Carolina
Orozco, Abigail Reyes, Claudia Mayne, Salud Soria, and
Maria Jaramillo, and WE WILL, within 3 days thereafter,
notify each of you in writing that this has been done and
that your unlawful layoffs will not be used against you in
any way.
D&F INDUSTRIES, INC. AND STAFFING
SERVICES AMERICA INC. (“OLSTEN”)

Lisa E. McNeil, Esq., appearing on behalf of the General Coun-
sel.
Thomas P. Burke, Esq. and Richard Marques, Esq. (Brobeck,
Phlegar and Harrison), of Los Angeles, California, appear-
ing on behalf of D&F Industries, Inc.
Kim A. Leffert, Esq. and Teresa A. Beaudet, Esq. (Mayer,
Brown & Platt), of Chicago, Illinois, appearing on behalf of
Staffing Services America (Olsten).
Krafchak, Esq. (Gilbert & Sackman), of Los Angeles, Califor-
nia, appearing on behalf of United Food & Commercial
Workers Union, Local 324, United Food & Commercial
Workers International Union, AFL–CIO, CLC.
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. United Food &
Commercial Workers Union, Local 324, United Food & Com-
mercial Workers International Union, AFL–CIO–CLC (the
Union), filed an original and first, second, third, and fourth
amended unfair labor practice charges in Case 21–CA–32952
on September 18, 28, October 13, 22, and November 24, 1998,1
respectively, and the Union filed an original and first and sec-
ond amended unfair labor practice charges in Case 21–CA–
32973 on September 28, October 22, and November 24, 1998.
Based on these unfair labor practice charges and after an inves-
tigation, on April 2, 1999, the Acting Regional Director for
Region 21 of the National Labor Relations Board (the Board),
issued a consolidated complaint, alleging that D&F Industries,
Inc. and Staffing Services America, Inc. (Olsten), separately
called Respondent D&F and Respondent Olsten and collec-
tively called Respondents, acting as joint employers, engaged
in acts and conduct violative of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act).2 Respondent D&F and
Respondent Olsten each timely filed an answer, essentially
denying the commission of the alleged unfair labor practices.
Thereafter, based on a notice of hearing, a trial on the merits of
the unfair labor practice allegations of the consolidated com-
plaint was held before me in Los Angeles, California, on July
26 through 30, August 16, and 24, 1999. At the trial, each
party was afforded the opportunity to fully delineate its fact and
legal positions by examining and cross-examining witnesses, to
offer into the record any relevant, supporting documentary
evidence, to argue its legal positions orally, and to file
posthearing briefs. The documents were filed by each party
and have been carefully considered.3 Accordingly, based on
the entire record, including the posthearing briefs and my ob-

1 Unless otherwise stated, all events occurred during the year 1998.
2 Interim Personnel was named in the consolidated complaint as a
party-in-interest but was neither represented nor participated at the
hearing.
3 Counsel for the General Counsel’s motion to correct the transcript
is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 626
servations of the testimonial demeanor of the several wit-
nesses,4 I issue the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent D&F, a wholly owned
subsidiary of Global Health Systems and a State of California
corporation, with an office and principal place of business lo-
cated on North Enterprise Street in Orange, California, a manu-
facturing plant located on Gene Autry Way in Anaheim, Cali-
fornia (Gene Autry facility), and a packaging plant located on
North Hariton Street in Orange, California (Hariton facility),
has been engaged in business in the manufacture and sale of
dietary food supplements. During the 12-month period imme-
diately preceding the issuance of the instant consolidated com-
plaint, which period is representative, in the normal course and
conduct of its above-described business operations, Respondent
D&F sold and shipped from its Orange, California facilities
goods and products, valued in excess of $50,000, directly to
customers located outside the State of California. Respondent
D&F admits that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
At all times material, Respondent Olsten, a State of Dela-
ware corporation and a wholly owned subsidiary of Olsten
corporation, with an office and place of business located in
Anaheim, California, has been engaged in the business of pro-
viding temporary employees to employers, including Respon-
dent D&F. During the calendar year ending December 31,
1998, which period is representative, in the normal course and
conduct of its above-described business operations, Respondent
Olsten performed services, valued in excess of $50,000, in
States other than the State of California. Respondent Olsten
admits that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.

4 During the course of the hearing, the witnesses were sequestered.
In granting counsel for the General Counsel’s motion, I asked all poten-
tial witnesses to stand and read for them and counsel from the Board’s
decision in Greyhound Lines, Inc., 319 NLRB 554 (1995). Notwith-
standing my clear instructions on sequestration, it came to my attention
that, while at lunch, some of counsel for the General Counsel’s wit-
nesses, including some of the alleged discriminatees, may have dis-
cussed a witnesses’ misidentification of one of Respondent D&F’s
management officials as a “Mr. Marconi.” There is no record evidence
that their discussion involved more than correcting this witnesses’
error, and counsel for Respondent D&F was permitted some latitude in
his cross-examination of witnesses and to recall witnesses for further
cross-examination in order to ascertain the extent of the violation of the
sequestration order. As I indicated at the outset of the hearing, I take
sequestration very seriously and do not look lightly on violations of
such an order. Further, as a trial judge, I am able to exercise broad
discretionary authority in dealing with perceived violations of seques-
tration orders. The identity of Respondent D&F’s management official,
who spoke at plant meetings with employees, is not really at issue, and,
after close scrutiny of the record, I can find no example, nor has coun-
sel for Respondent D&F or counsel for Respondent Olsten cited any, of
testimonial congruence sufficient to cause me to believe that witnesses
collaborated on their respective testimony . Nevertheless, in assessing
the credibility of some of the witnesses, I have taken into account the
potential violation of my sequestration order.
II. LABOR ORGANIZATION
Respondents stipulated that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUES
Based on the allegations of the consolidated complaint, the
following issues arose and were the subjects of litigation during
the instant trial:
1. Are Respondent D&F and Respondent Olsten joint em-
ployers of the temporary employees of Respondent Olsten who
are working at Respondent D&F’s Hariton and Gene Autry
facilities?
2. Did Respondent D&F, through Howard Simon, violate
Section 8(a)(1) of the Act by soliciting grievances from em-
ployees, informing employees that it would be futile for them to
select the Union as their bargaining representative, threatening
employees with job loss because of their support for the Union,
threatening employees with layoffs because of their support for
the Union, threatening employees with plant closure because of
the Union, threatening employees with termination because of
their support for the Union, and by promising benefits to em-
ployees in order to induce them to cease supporting the Union?
3. Did Respondent D&F, through Lucho Lopez, violate Sec-
tion 8(a)(1) of the Act by threatening employees with termina-
tion because of their support for the Union and by interrogating
employees as to their reasons for joining and supporting the
Union?
4. Are Maria Paz-Vasquez and Maria Rosa Jaramillo, each
classified as an assistant to the packaging manager, Lucho Lo-
pez, supervisors of Respondent D&F within the meaning of
Section 2(11) of the Act and its agents within the meaning of
Section 2(13) of the Act?
5. Did Respondent D&F, through Maria Paz-Vasquez, vio-
late Section 8(a)(1) of the Act by interrogating employees re-
garding whether union organizers had visited their homes, their
union sympathies, their involvement with the Union, and
whether they had executed authorization cards for the Union;
by instructing employees not to sign union authorization cards;
by threatening employees with termination if they sign union
authorization cards; and by stating that employees had been
terminated for signing authorization cards for the Union?
6. Did Respondent D&F, through Maria Rosa Jaramillo,
called Rosa Jaramillo, violate Section 8(a)(1) of the Act by
interrogating employees as to whether they had signed union
authorization cards and by creating the impression in the minds
of employees that Respondent D&F was engaging in surveil-
lance of their union activities?
7. Did Respondent D&F violate Section 8(a)(1) and (3) of
the Act by causing the layoffs of alleged discriminatees Claudia
Mayne, Abigail Reyes, Carolina Orozco, Salud Soria, Jose Luis
Rivera, Maria Jaramillo, and Silvia Martinez?
8. If found to constitute a joint employer, is Respondent Ols-
ten vicariously liable for laying off the alleged discriminatees in
violation of Section 8(a)(1) and (3) of the Act?
D&F INDUSTRIES 627
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background and the Respondents’ business relationship
The record establishes that Respondent D&F is a wholly
owned subsidiary of Global Health Systems (GHS), a holding
company; that, besides Respondent D&F, which manufactures
dietary food supplements for the nutritional supplement indus-
try, other wholly owned subsidiaries of GHS manufacture pow-
der meal replacement drinks and distribute herbs and other raw
materials for the dietary food supplement industry; that Howard
Simon is the chief operating officer of GHS and responsible for
operations at all GHS facilities; and that the plant managers at
each of GHS’s production facilities report to him as well as to
other corporate officers. At all times material, through the fall
of 1998, Respondent D&F operated a plant in Anaheim, Cali-
fornia, the Gene Autry facility, at which its products were, and
are, manufactured, and a 40,000 square foot facility in Orange,
California, the Hariton facility,5 to which its new manufactured
products were transported from the Gene Autry facility and
which, according to Simon, was utilized “strictly” for packag-
ing—“putting manufactured tablets and capsules into bottles
and . . . labeling those finish[ed] goods.”6 Pete Pescetti is Re-
spondent D&F’s vice president of operations and was directly
responsible for operations at the Hariton and Gene Autry facili-
ties. Steve Posey was the Hariton plant manager, reporting
directly to Simon and Pescetti, and Sebastian Nevarez was the
manufacturing manager at the Gene Autry facility. At the Hari-
ton facility, the various department managers including the
quality assurance manager, the quality control manager, the
maintenance manager, the warehouse manager, and the packag-
ing department manager reported directly to Plant Manager
Posey. The record further establishes that Staffing Services
America, Inc., Respondent Olsten, is a wholly owned subsidi-
ary of the Olsten Corporation and is in the business of provid-
ing temporary employees, whom it employs, to other employ-
ers; that Respondent Olsten performed services for Respondent
D&F from March 1993 through October 1998, during which
time the former provided light industrial production employees,
packers, material handlers, tablet inspectors, technical employ-
ees, and administrative personnel to Respondent D&F on a
temporary basis, at its manufacturing and packaging facilities;7
that Carmen Reyes was the site manager for Respondent Olsten
at Respondent D&F’s facilities; and that Reyes maintained an
office at the Hariton facility, at which she interviewed prospec-
tive employees and conducted most of Respondent Olsten’s

5 In May 1999, Respondent D&F closed its Hariton facility and
moved its packaging operations to a new facility, located in Anaheim
Hills.
6 The two facilities are three or four miles apart. According to How-
ard Simon, 75 percent of production at the Gene Autry facility is for
Respondent D&F’s main customer, Herbal Life International (HLI),
and 25 percent is for other customers. Further, the product, which is
produced for HLI, represents almost “90 percent” of what is packaged
by Respondent D&F at the Hariton plant.
7 Apparently, commencing in October 1998, Interim Personnel be-
came the supplier of temporary employees to Respondent D&F.
administrative and employee-related functions,8 and visited the
Gene Autry facility two or three times a week.
The record reveals that, at each of Respondent D&F’s facili-
ties, in addition to the temporary workers, employed by Re-
spondent Olsten, the former had its own employees performing
various job functions.9 According to Howard Simon, at the
Hariton facility, while Respondent Olsten’s employees and
Respondent D&F’s employees often worked side-by-side, the
latter’s employees worked in “basically the more skilled posi-
tions, the lead and supervisory position[s].” Its employees were
those who, “over the years over the [course] of [their] experi-
ence had gotten up to a certain level of proficiency.” In con-
trast, Respondent Olsten’s employees “were people who were
generally newer to our facility or people who had been hired to
fill openings as a result of fluctuations in the plant.”10 Carmen
Reyes testified that she normally became aware of available job
openings through conversations with Respondent D&F’s de-
partment managers, and . . . I may have, at any one time, five to
twenty-five openings.” With regard to Respondent Olsten’s
hiring procedures for individuals, who apply for work at Re-
spondent D&F’s facilities,11 Reyes testified that she would
“prescreen, evaluate, and place candidates to the various open
positions [about which Respondent D&F informed her]. . . .
Candidates would come into the office. There was generally
set hours for me to accept applications. They would come in
and apply. . . . and if I had a position open that would meet [the
individual’s] qualifications . . . I would present that candidate to
a supervisor . . . and hopefully get an interview set up. . . . If
[the opening was for] light industrial or packer positions I . . .
directly place the person to an assignment after they’ve been
8 Apparently, Respondent Olsten provided support staff for Reyes at
the Hariton facility.
9 During the average payroll period, Respondent Olsten’s employees
would comprise 40 to 50 percent of the work force at Respondent
D&F’s facilities or between 200 and 245 workers.
10 For example, according to Simon, on the packaging lines at the
Hariton facility, “it would be safe to assume that the people who are
operating the machinery, people who are adjusting the machinery,
people who are directing other employees on the line, were D&F’s
employees. People who were doing . . . entry-level types of work were
[Respondent Olsten’s] employees.”
The record establishes that such was not always the case. Thus,
Carmen Reyes described Respondent Olsten’s so-called “temp to hire”
program pursuant to which if she placed a higher level employee or a
supervisor with Respondent D&F, the individual remained Respondent
Olsten’s employee “just for payroll” purposes and, after 90 days, the
individual would be hired by Respondent D&F. Two such individuals,
Jose Perez and Olmedo Duque, were initially hired by Respondent
Olsten and eventually hired by Respondent D&F as the second-shift
packaging department supervisor. Further, it is clear that most of Re-
spondent D&F’s own full-time production employees had originally
been employed by Respondent Olsten temporary employees. How long
an individual remained the latter’s employee before being hired by
Respondent D&F would vary depending on the individual’s skill level,
performance, and attitude. According to Reyes, a department manager
would inform her when Respondent D&F desired an individual’s trans-
fer to full-time status.
11 Carmen Reyes testified that, given the number of walk-in appli-
cants, advertising available positions at Respondent D&F’s facilities
was never required.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 628
qualified. . . . For the production level employees they were
standard positions that I placed on a regular basis. So, I pretty
much knew what the basic guidelines were for all those.”
Other jobs, “they would have to give me specific requirements
for the job.” On hiring individuals, Reyes would provide a
“verbal” orientation, generally telling them “that they were my
employees. I was responsible for their payroll. If they had any
injuries on the job they would need to report it to me. . . . If
they had any problems out on the floor or with coworkers or
with their jobs to notify me as well.” Reyes was clear that she
would not instruct the temporary employees how to do their
jobs, and Howard Simon testified that Respondent D&F’s per-
sonnel gave the temporary employees, employed by Respon-
dent Olsten, their daily work assignments, job training, and
work instructions and generally supervised their work.
Respondent Olsten was responsible for performing its own
payroll functions for its temporary employees. To this end,
Carmen Reyes would “collect timecards on a weekly basis and
distribute payroll checks on a weekly basis as well.” However,
while Respondent Olsten nominally paid its temporary employ-
ees for their work, according to Howard Simon, Respondent
D&F, “set the rate at which [Respondent Olsten paid] for each
type of job” and was the source of the funds out of which Re-
spondent Olsten paid its employees’ wages.12 Also, Respon-
dent Olsten was responsible for any workplace injuries, suf-
fered by its temporary employees, and Reyes “would have to
investigate and report on each incident and also . . . was in-
volved with the safety meetings that we did on a monthly ba-
sis.” On this latter point, according to Simon, Reyes was a
standing member of Respondent D&F’s plant safety commit-
tees “and had been instrumental in posters and conducting
meetings for the benefit of both sides.” With regard to the dis-
ciplining of Respondent Olsten’s temporary employees, the
record discloses that, while its employees were required to
abide by Respondent D&F’s employment policies, rules, and
regulations, Respondent Olsten was responsible for all discipli-
nary actions, including warnings and suspensions, involving its
employees, and Reyes testified that she had “the last authority”
on any discipline involving Respondent Olsten’s employees.
Thus, on her “periodic” visits to the shop floor, if she observed
a Respondent Olsten employee engaging in misconduct, Reyes
possessed authority to dispense immediate discipline. Other-
wise, when Respondent D&F’s managers informed her of mis-
conduct by one of Respondent Olsten’s employees, either ac-
cepting the report or after conducting an investigation, she was
responsible for disciplining the worker. However, there is no
dispute that Respondent D&F was authorized to request that
Respondent Olsten discharge or lay off its temporary employ-
ees. In this regard, Margarido (Lucho) Lopez, the packaging
manager, conceded that Carmen Reyes did not possess the right
to suggest that an individual not be laid off, and Reyes admitted
that she never questioned Respondent D&F’s rationale for re-
questing that a particular temporary employee be laid off or
discharged. Finally, while temporary employees, employed by
Respondent Olsten, were required to inform Reyes if they were

12 Respondent Olsten charged Respondent D&F a set percentage of
each temporary employee’s pay as its fee.
unable to report for work, they were required to seek permis-
sion of a Respondent D&F supervisor in order to leave work
early.
2. The supervisory status of Maria Rosa Jaramillo and
Maria Paz-Vasquez
The record establishes that, during the spring, summer, and
fall of 1998, at Respondent D&F’s Hariton facility, depending
on demand for its products, the total employee complement at
the Hariton facility, including temporary Respondent Olsten
and full-time Respondent D&F employees, was between 200
and 300 workers; that between 140 and 150 of the employees
worked in the packaging department; that the packaging de-
partment operated with two daily work shifts (6 a.m. to 3 p.m.
and 3:30 a.m. to midnight); and that Lucho Lopez, the packag-
ing department manager,13 worked from 7:30 a.m. until 5:30 or
6 p.m. each day. During the above-time period, on the first
shift, beneath Lopez in authority and reporting directly to him,
were two individuals, each having the job title, assistant to the
packaging manager—Eduardo Cavallero and Rosa Jaramillo,
called Rosa Jaramillo. On the second shift during this time
period, as he normally worked no more than 3 hours into the
shift, beneath Lopez in authority were Second-Shift Supervi-
sors Jose Perez and Olmedo Duque,14 and beneath them were
two individuals, each having the job title, assistant to the pack-
aging manager—Navijio Vargas and Maria Paz-Vasquez.15
The record further establishes that, in May 1998, on both work
shifts, Respondent D&F maintained five packaging lines, each
comprised of 13 to 15 Respondent Olsten temporary employees
and Respondent D&F full-time employees. The packaging
lines were 30 feet in length and 6 feet apart; on each line, em-
ployees operated a machine which feeds specified numbers of
13 Respondent D&F admits that Lopez is a supervisor within the
meaning of Sec. 2(11) of the Act.
14 The record establishes that Jose Perez, who, unbeknownst to Re-
spondent, was a union member on a leave of absence from his em-
ployer and with instructions to seek employment with Respondent
D&F, was hired by Respondent Olsten to work at the former’s Gene
Autry facility in September 1997. Promised more rapid advancement,
he accepted Olsten’s offer of transfer to the Hariton facility in January
1998, and, within 2 months, while remaining in the employ of Respon-
dent Olsten, he was promoted to the second-shift supervisor position in
the packaging department. Because his leave of absence had ended,
Perez left his supervisory position with Respondent D&F in early May,
and, several weeks later, possibly as late as July, Duque was hired by
Respondent Olsten and then appointed to the second-shift supervisor
position by Respondent D&F.
Perez testified that, as second-shift supervisor, he was in charge of
the packaging department during the second shift, that he was responsi-
ble for personal and production problems, and that “my job was to
make sure that everything ran as good as it could and without any prob-
lems and if there was any problems . . . I would try and do the best to
correct them.” Perez further testified that, while he was not authorized
to hire, he did have authority to discipline employees. As to the latter
point, Lucho Lopez admitted that he relied on Perez’ observations of
employees in reaching layoff decisions.
15 During the time period between Perez’ departure from the Hariton
facility and the hiring of Duque, Paz-Vasquez and Vargas were the
highest ranking individuals working in the packaging department on the
second shift after Lopez left the plant.
D&F INDUSTRIES 629
food supplement pills into bottles, a machine which inserts
pieces of cotton on top of the pills in each bottle, a machine
which places a cap on each bottle, a “video jet” machine which
applies the lot number to the bottom of each bottle, a machine
which seals the bottles, and a labeling machine. Other employ-
ees, on each line, are stationed along a conveyor belt, on which
the bottles are placed for packing into boxes and a machine
which stamps each box of pills. There is no dispute that, on
each packaging line, besides the machine operators and other
employees, there was a line coordinator, who was responsible
for monitoring the production on his or her line and for filling
out daily production reports, and a lead person, who assigned
the various line jobs to the line’s employees each day. There is
also no dispute that, although some work, such as operating the
pill machine, requires more experience, the packaging line jobs
are repetitive, “similar” on a daily basis, and interchangeable,
and, other than requiring some concentration, are not particu-
larly complicated. In this regard, line employees normally are
rotated from job to job on a daily basis.
The consolidated complaint alleges that Rosa Jaramillo and
Maria Paz-Vasquez are supervisors within the meaning of Sec-
tion 2(11) of the Act and agents within the meaning of Section
2(13) of the Act.16 At the outset, Lucho Lopez testified that the
four assistants to the packaging manager had exactly “the
same” duties and responsibilities—“there is no difference.” In
support of the consolidated complaint allegations, counsel for
the General Counsel offered the respective testimony of the
alleged discriminatees, a current employee and laid off employ-
ees, and Jose Perez. The latter, who stated that, prior to being
promoted to the second-shift supervisor position in mid-
February 1998, he had been a line coordinator on the first shift
for a 2 or 3 week period, testified that, while Lucho Lopez
spent most of his workday in the packaging department office17
and just 5 percent of his worktime on the production floor, his
assistants spent up to 95 percent of their worktime on the shop
floor and had authority over personnel matters and production.
As to the latter, according to Perez, the assistants to Lopez were
responsible for any problems resulting from tablet miscounts or
shortages or from employees not properly performing their job
duties. Also, during product changes on the packaging lines, a
process which often necessitated “a new set up” and the reas-
signment of employees to other lines, the assistants to Lopez
decided to which lines employees would be reassigned. Re-
garding the assistants’ authority in personnel matters, Perez
testified that, while Lopez made the decisions to assign over-
time work, Jaramillo and Cavallero “would decide who would
work” on the dayshift and, on the second shift, Vargas and Paz-
Vasquez “would decide which lines they were going to work,
which people they were going to keep.”18 Perez further testi-

16 While production employees began at a $5.75-per-hour rate of pay
and line coordinators were paid $7 per hour, Jaramillo and Paz-
Vasquez earned $10.75 per hour.
17 This office was located just off the packaging department floor
and had a large window through which Lopez was able to observe the
workers on each packaging line.
18 During cross-examination, Perez conceded that Lopez assigned
overtime on just one occasion while he was second-shift supervisor.
The work was cleanup work, which Lucho wanted completed by the
fied that, on the first shift, Rosa Jaramillo and Cavallero would
confront employees, who seemed to be spending too much time
in the restrooms and that, on one occasion, Paz-Vasquez ad-
vised him that she had permitted an employee to leave work
early. Current packaging department employee, Camerina
Calderon, who began working at the Hariton plant as a Respon-
dent Olsten temporary employee but who, at the time of the
hearing, was a full-time Respondent D&F employee, testified
that she worked on the second shift during the summer of 1998,
making boxes; that, on several occasions during second-shift
packaging department employee meetings, Lucho Lopez told
the assembled employees that Paz-Vasquez was their supervi-
sor; that, on a daily basis, Paz-Vasquez would assign her to the
line on which she would work; and that, prior to Olmedo Du-
que’s appointment as second-shift supervisor, Paz-Vasquez and
Vargas performed his job duties.
Three former Respondent Olsten employees, who had been
laid off from jobs in the packaging department at Respondent
D&F’s Hariton plant, testified with regard to Rosa Jaramillo
and Maria Paz-Vasquez. According to Marta DeLeon Ornelas,
who did maintenance work for the packaging department on the
dayshift, if supplies were needed, Rosa Jaramillo “would tell
me to go where they were at and then I went to pick them up,”
and “when she put me to do cleaning in maintenance she told
me that I was going to clean lines, she said your lines are going
to lines one, two, and three.” Abelina Garcia-Sosa, who
worked on second shift testified, testified that Paz-Vasquez did
not work on a packaging line; rather, “[S]he just went around
supervising how we worked. That’s all . . . whenever she saw
that there was a problem . . . she had to go and discuss it with
Lucho to see what was up,” and “Lucho had to solve it.” Gar-
cia-Sosa further testified that, whenever Carmen Reyes would
send workers to Paz-Vasquez, the latter would give them their
daily work assignments and that, while Paz-Vasquez would
instruct the lead ladies as to what employees should do each
day, “most of the time . . . we . . . did pretty much the same
tasks.” Paula Pineda Camargo, a packaging department em-
ployee, testified that, on being hired by Respondent Olsten for
work on the second shift, Carmen Reyes informed her that Paz-
Vasquez would be her supervisor and that she “would train us,
she could also lay us off and she could call more people in.”
During cross-examination, asked if Olmedo Duque was her
immediate supervisor, Camargo replied, “[W]e would always
address Maria Paz, to him we almost never went . . . . He was
introduced to us as a manager.”19 Also, Paz-Vasquez “would
police all of us” and, “if we had a problem we had to go to her
about everything.”20 Camargo added that Paz-Vasquez as

next day, and he “told Maria Paz and Vargas, we need to get this place
spotless for tomorrow, you keep the people, whatever people you
want.”
19 On this point, the witness was impeached by her pretrial affidavit
in which she termed Duque her “immediate” supervisor.
20 With regard to personnel matters, Camargo stated that her work
was the same each day and that, while it was not necessary for anyone
to instruct her as to her job on a daily basis, her lead lady “would just
tell us where she was going to position us.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 630
signed overtime. “She told us that we were going to come to
work Saturdays or that we could stay overtime each night and
she picked the people to stay over. Asked during cross-
examination, if overtime was worked on a volunteer basis,
Camargo replied that Paz-Vasquez “would pick them out, she
would tell them, you and you are going to stay.” Finally, as to
discipline, Camargo stated that she once overheard Paz-
Vasquez speaking to Garcia-Sosa. “She told her that she did not
want to hear her talk so much at work or else she was going to
lay her off.” Garcia-Sosa failed to corroborate Camargo on this
point.
Turning to the respective testimony of four of the alleged
discriminatees,21 each of whom worked in the packaging de-
partment at the Hariton facility, on the subject of Jaramillo’s
and Paz-Vasquez’ supervisory status, Maria Jaramillo, testified
that, when she was hired by Carmen Reyes for work at the
Hariton plant, the latter told her to report to Rosa Jaramillo, her
sister-in-law, on the first shift. According to Maria, Rosa
Jaramillo performed no production work—“She just went from
line to line to check on workers and to check the machines, to
see if they were working properly.” She added that, while her
lead lady gave her job assignments on a daily basis and Rosa
Jaramillo never gave her work instructions, her sister-in-law did
transfer her from one line to another, and she gave work in-
structions to the line coordinators. Abigail Reyes testified that,
on the second shift, Paz-Vasquez was over the line coordinators
and “supervised the lines and the people also. . . . She made
sure that the people did their job right . . . . and that we showed
up.” She added that, on one occasion, Paz transferred her from
one line to another. Likewise, Claudia Mayne, who worked on
the second shift, testified that Paz-Vasquez was “the one who
supervised the line.” Her job was “checking to see that the
production came out right.” Carolina Orozco, who worked on
the second shift, testified that Paz-Vasquez could assign people
to certain jobs on different machines and could assign someone
to perform your job if you were not doing it properly. Finally,
Silvia Martinez, who also worked on the second shift, testified
that her supervisor was Maria Paz-Vasquez; that Paz-Vasquez
once gave her permission to leave work early when her daugh-
ter was ill; that she stayed and worked overtime “when they
told me to;” and that Paz-Vasquez was the one who told her to
do so.
Lucho Lopez testified that his assistants mainly have produc-
tion rather than personnel responsibilities and that, even as to
the former, the extent of their authority was minimal. In this
regard, Jaramillo and Paz-Vasquez “are working on the line
. . . . They just focus mainly on production, make sure that
we’re . . . using the right components . . . the right label, the
right cap.” Further, his assistants act merely as “support to the
line coordinators when [the line coordinators] are not finding
something, a number or an item . . . . And they start looking for

21 The record reveals that the seven alleged discriminatees were all
Respondent Olsten temporary employees and that all, except Jose Luis
Rivera, worked at Respondent D&F’s Hariton facility. Rivera worked
at the Gene Autry facility.
that item.”22 Closely questioned regarding the seemingly
inconsequential nature of his assistants’ job duties, Lopez
averred, “Well, this is a person that has got experience. When
you are missing bottles, they know how to handle those issues.
When you are . . . missing any component on the line. They
know the procedure.” During cross-examination, Lopez in-
sisted that this was his assistants’ only role—“assisting the
coordinators.” With regard to personnel matters, the tenor of
Lopez’ testimony was that he was primarily responsible for
observing the work of the packaging department personnel23
and that his assistants’ responsibilities, in that area, were slight.
Thus, according to Lopez, during most of the workday, “I am in
and out from [the] production office to the lines,”24 ensuring
“that everything go right, and that everybody are busy, and we
doing what we supposed to be doing.” In overseeing the pack-
aging department employees, he is either patrolling the lines or
peering out the large production office window at the produc-
tion lines.25 In contrast, Lopez testified, Jaramillo and Paz-
Vasquez, each of whose focus is checking “the components or
numbers,” have virtually no authority in personnel matters.
Thus, they have no authority to hire, fire, lay off, suspend, or
discipline employees. If a Respondent Olsten employee war-
rants discipline, “they’ll let me know first that there is a prob-
lem. We investigate the case. And we report it to Olsten to
take care of it.”26 Likewise, Jaramillo and Paz-Vasquez have
no authority to grant time off, and, Lopez further testified, “if
an employee had an emergency . . . they let me know that these
people have left. Lopez does not consider this granting time off
from work as “in case of emergency, [we] can not retain the
employee.” Moreover, if not an emergency situation, such as a
22 Lopez maintained that, during the workday the line coordinators
and the lead persons make sure their packaging lines have all necessary
supplies and keep a daily packaging report “for whatever happens on
the line.” Also, they are responsible for checking that the machinery is
running properly and for reporting breakdowns.
23 He was contradicted on this point by Howard Simon, who testified
that “Lopez’ functions are primarily to take care of production plan-
ning. He will plan on what’s going to happen next, he maintains the
production board, he monitors the activity on the lines, he sees how
orders are finishing, so he’ll be planning. . . . he relies on [his assis-
tants] to take care of the routine activities on the shop floor,” including
making sure that the workers are working and that the machines are
operation correctly.
24 At one point, Lopez estimated that 70 percent of his time was
spent in this manner; later, he raised his estimate to 75 percent of his
time. In contrast, as stated above, Jose Perez estimated that Lopez
spent 95 percent of his workday inside the production office.
25 Lopez maintained that he was able to observe each of the packag-
ing lines, as the first was no more than 5 feet from the window, with the
remainder of the lines being 6 feet apart. While corroborating Lopez
that he could see all the packaging lines through his office window,
Paz-Vasquez stated that the first line was approximately 15 feet from
his office.
26 For example, according to Lopez, if a temporary employee is
spending too much time in a restroom, Jaramillo or Paz-Vasquez re-
ports the matter to him and, after investigating to determine if such is,
in fact, what has occurred, he will report to Respondent Olsten that
there is a problem. Lopez added that the same procedure would be
used if the miscreant employee is a Respondent D&F employee—he
would investigate and issue discipline if warranted.
D&F INDUSTRIES 631
doctor appointment, the employees . . . have to let [Posey and
Lopez] know first,” and, if an Olsten employee, “I have to no-
notify Olsten, too.” Further, according to Lopez, neither
Jaramillo nor Paz-Vasquez has any authority to grant overtime
to employees, and, in any event, overtime is strictly on a volun-
tary basis. If overtime work is required, Lopez must receive
orders for such from the vice president of operations or the
Hariton plant manager, and “we prefer the same people to work
overtime the same people that is working all day long on those
lines . . . . But if somebody can not stay for any reason . . . we
ask for volunteers to work the overtime.” The responsibility of
his assistants, Jaramillo and Paz-Vasquez, is to “make sure that
we have enough people to work overtime,” but, if no one de-
sires to remain and work overtime, “we don’t force the work. It
is not mandatory to work.” Also, while testifying early in the
trial that his assistants may switch employees from one line to
another, Lopez later testified that he makes the decision that
such will be done and leaves it to the line coordinators and lead
personnel to select the people for transfer. As to the authority
of Paz-Vasquez and Vargas after he left the plant each evening
during the period preceding the appointment of Olmedo Duque
as the second-shift supervisor, Lopez stated, “I try to take care
of the whole thing. I leave everything set up for them . . . . I
was still in charge;” that they were “not allowed to fix” any-
thing; and that “they had my phone number and everything.”
Finally, Lopez admitted that he has solicited oral personnel
evaluations from Jaramillo and Paz-Vasquez. In this regard,
after asserting that he does so only after an abnormal incident,
Lopez was impeached by his pretrial affidavit w he stated,
without qualification, that he routinely asks Paz-Vasquez and
Jaramillo to verbally assess temporary and full-time employees.
Rosa Jaramillo and Maria Paz-Vasquez each essentially cor-
roborated Perez’ description of the extent of their authority in
personnel matters. Thus, each debased the extent of her author-
ity over production and over personnel matters. According to
the former, “I assigned the job duties to the line coordinators. I
checked papers, components, stamps, expiration dates. I went
to the lines to see if they needed help. And if they needed help,
I would send it to them.”27 Jaramillo denied having the author-
ity to hire, fire, layoff, grant time off to employees, assign over-
time, suspend, or discipline. With regard to the latter, if she
observed an employee report late, she would ask why “and then
I tell them that they should always be on time to work” and
report the matter to Lucho Lopez. Jaramillo added that she was
authorized to permit employees to leave early in emergency
situations and that, while she would “ask [employees] who
wants to stay for overtime,” Lucho Lopez would tell her how
many employees are needed.28 Also, Jaramillo denied authority

27 Jaramillo conceded giving work orders, which she obtained from
the computer, which was located in the production office and to which
she had coded access, to the line coordinators.
28 Jaramillo denied ever telling people to work overtime “because it
is a voluntary thing.” One employee corroborated Jaramillo that such
was voluntary. Thus, Camerina Calderon testified that she “some-
times” worked overtime during the summer of 1998 and that “when
we’re at work and we finish the eight-hour day and then we hear that
there is overtime because Maria Paz . . . asks us . . . if we wanted to
to transfer employees from one line to another. She stated that
she continually asks the line coordinators if they need help, and
that, if employees are missing, she asks Lucho Lopez “which
line I could take that needed person . . . . and he would tell me.”
Finally, while denying that she evaluated the work performance
of employees, stating “Lucho does,” Jaramillo conceded giving
Lopez weekly verbal evaluations of employees, which are
based on employees’ on-time records, their job performance,
their behavior, and their bathroom time.
Likewise, Paz-Vasquez, who denied that her job title was as-
sistant to Lopez,29 testified that the line coordinators “take care
of giving orders to the rest of the personnel as to what they are
going to be doing that day” and the lead ladies “take care of
placing the personnel in the different areas of work on the
lines” and that her role merely entailed “mostly. . . helping with
what they are doing.” Later, however, she conceded that she is
in a position of authority over the line coordinators and lead
ladies with regard to production. “We give reports of the work
to be done to the line coordinators and we check all the lines to
make sure that the work is coming out okay. . . . We go from
line to line checking on the orders and making sure they are the
correct ones because there could be mistakes.” Concerning her
authority over personnel matters, Paz-Vasquez denied having
authority to hire, fire, or to lay off.30 Also, she had no authority
to discipline except “when [employees] got there late.”31 Then,
the line coordinators and the lead ladies would tell the em-
ployee to be on time, and, if the employee was repeatedly late,
they would inform Paz-Vasquez, who would, in turn, tell Lucho
Lopez.32 On the same point, corroborating and contradicting
Jaramillo, Paz-Vasquez denied having authority to assign over-
time, which is ordered by Lucho Lopez or Steve Posey. “I tell
the line coordinators to take care of that to select the personnel
because overtime is voluntary. So . . . not everybody can stay.”
Further, she is not authorized to permit employees to leave
early, but, if an emergency situation exists, permission is not
required.33 Also, depending on, if a worker is employed by

stay, do you want to stay for some OT?” She added, “They asked us
individually.”
29 On this point, she was contradicted by her pretrial affidavit w she
swore that her job title was assistant to the packaging manager.
30 Paz-Vasquez testified that she spends most of her time on the pro-
duction floor and, contradicting Lopez, denied that he works on the
floor—“He has his office and he is in his office.”
31 Paz-Vasquez contradicted herself during cross-examination, ad-
mitting authority to also discipline when employees are talking exces-
sively. Thus, if employees are excessively talking, the line coordina-
tors will tell them to stop, but “if they are doing that too much, [the line
coordinators] come and tell me. . . . So, I go . . . and talk to [the em-
ployees] and tell them listen do not talk so much . . . . And, if they
continue, . . . either Olmedo or Lucho go . . . and take care of it.”
32 Contradicting herself during cross-examination on the extent of
her authority to discipline in such instances, Pas-Vasquez stated, “If
[employees] have been coming late, I let them know. I tell them not to
be coming late and not to forget the break time. Because the line coor-
dinator comes and tells me when someone is being late.”
33 On this point, she admitted that her authority was greater during
the time period immediately prior to the hiring of Olmedo Duque.
Thus, she was authorized to permit temporary employees to leave early
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 632
Respondent D&F or Respondent Olsten, he or she must call
into his or her employer’s office in order to request a day off
from work.34 Paz-Vasquez denied authority to move workers
between the lines unless ordered her to do so by Lopez or the
shift supervisor—“We cannot transfer them unless there’s an
order to do that.” Moreover, as to who was the highest supervi-
sory authority after Lopez left the plant during the period prior
to Duque becoming the second-shift supervisor, she admitted,
“It’s me” and Vargas35 and, during said time period, their au-
thority was “the same” after Lopez left the plant.36 Finally,
Paz-Vasquez conceded that she has been asked for her evalua-
tions of employees by Lopez.37
While Lopez, Jaramillo, and Paz-Vasquez denied that the as-
sistants to the packaging manager possessed authority to fire
employees, counsel for the Charging Party offered evidence
contradicting them on this point. Thus, a former Respondent
Olsten temporary employee, Estaban Espinosa, who had been
hired to work at the Respondent D&F Hariton facility in Sep-
tember 1997,38 testified that, one day in November 1997, Paz-

in nonemergency situations as long as the workers notified Respondent
Olsten.
34 Testifying on rebuttal, Camerina Calderon contradicted Paz-
Vasquez, stating, “I called Maria Paz . . . to let her know that I could
not come to work” because of illness. And some other times I would
tell Lucho. She recalled speaking to Paz-Vasquez on five such occa-
sions, testifying that the latter always gave permission, saying “Get
well,” and never placed her on hold in order to consult with anyone.
35 She testified that, if an “emergency” occurred, she was able to
reach Lopez immediately.
36 Paz-Vasquez was closely examined by counsel for the General
Counsel regarding her authority to initial timecards during the period
prior to the hiring of Duque. On this point, she testified that it was
Vargas’s responsibility to “take care of . . . checking the cards. He
would make a report for Lucho about the bad cards and then Lucho
would fix the cards.” She specifically denied having the authority to
initial timecards. However, when impeached by her pretrial affidavit in
which she stated that, when Vargas was not present, she did initial
timecards and that Lucho Lopez had given her the authority, which she
exercised, to check timecards for accuracy, Paz-Vasquez denied pos-
sessing such authority, saying, “[W]e simply just collect [the time
cards] but not to correct them and we just put them aside.”
37 Paz-Vasquez minimized this aspect of her work, asserting that line
coordinators were also responsible for doing employee evaluations.
Jose Perez was uncontroverted that Paz-Vasquez and Vargas knew
the Hariton facility’s burglar alarm code and that each had the keys to
the building and were responsible for locking it at the end of the night
shift.
38 Espinosa, who worked for Respondent until June 1999, testified
that, for a 4- or 5-week period during his employment, at the Hariton
plant, he was a line coordinator in the packaging department—3 or 4
weeks on the first shift and 1 week on the second shift. In that position,
according to the witness, his job was “to maintain the pills in the ma-
chine, to make sure [it] had enough glue” and “to make sure that [the
other employees] were working and that they had enough tables and
seals and the date and the box count.” Contrary to Paz-Vasquez,
Espinosa denied, while working as a line coordinator, ever evaluating
employees or filling out evaluation forms for employees on his line.
Espinosa testified that, on the first shift, Rosa Jaramillo and Eduardo
Cavallero were responsible for ensuring that employees did not engage
in excessive talking nor spend too much time in the restrooms and that,
on the second shift, Paz-Vasquez and Vargas were given the responsi-
bilities. Further, if workers were absent, “I would tell [Paz-Vasquez]
Vasquez fired him from his job. According to Espinosa, on that
day, he reported for work 10 minutes late. “I was going to
punch my card and [Paz-Vasquez] told me not to punch it. I
asked her why shouldn’t I punch in and she told me that I was
fired.” Thereon, with Paz-Vasquez trailing him, Espinosa went
to Carmen Reyes’s office. “I spoke with [Reyes] and she an-
swered me that [Paz] didn’t want me any more.” Again, fol-
lowed by Paz-Vasquez, the temporary employee went to Lucho
Lopez’ office and explained what had occurred. Lopez con-
ferred with Paz-Vasquez and then told Espinosa that Paz-
Vasquez had fired him “because I would be absent three days
per week;” that he would investigate what had occurred; and
that the employee should go home while he did so. Two days
later, Espinosa returned to the Hariton facility, and Lopez told
him “that he had investigated and that he was going to give me
my job back but in his shift.”39 Lucho Lopez, who stated that
Espinosa was a “material handler” on the second shift and who
denied that the employee had ever been a line coordinator, testi-
fied that he, in fact, made the decision to transfer Espinosa to
the first shift. “Mr. Espinosa . . . was having problems with his
[attendance] and missing days. . . . Maria Paz brought it to my
attention several times. . . . So, I start my investigation,”
checking the Respondent Olsten’s files and noting Espinosa’s
tardiness and absences were a recurring pattern. That same
day, Lopez decided that he should speak to Espinosa, but the
latter was late for work again. The next day, Lopez instructed
Paz-Vasquez “to tell him to come and see me. Cause I need to
talk to him. . . . He come to me asking me why he got laid off.
I say you’re not laid off. Let’s try to solve this problem. . . . I
say why you missing days and getting . . . late all the time cause
I want some accountability on your part. . . . we start talking
why he was missing days and coming late . . . more than nor-
mal . . . and his side of it was that he got a lot of problems with
his car, transportation, and he was living here in L.A. . . . I said
I think if we switch you to first shift . . . you can make it on
time. . . . He said that’s not gonna be a problem I’m gonna fix
my problems. And, I believe he took 1 or 2 days . . . . and . . . .
after that we didn’t have any problems.” Maria Paz-Vasquez
testified, during cross-examination, that Espinosa was a Re-
spondent Olsten employee who regularly arrived at work late;

that I needed somebody at this or that machine and then she would go
and get me the . . . people that I needed to fill in that spot.” Finally, the
assistants to Lopez were responsible for reminding workers to be on
time for work. Finally, with regard to overtime, Espinosa corroborated
Jaramillo and Paz-Vasquez as to what occurred when there was over-
time to be worked—Paz-Vasquez would approach him and “she would
tell me, stay to do some overtime if you decide to do it or not.”
39 Espinosa testified that Paz-Vasquez fired one other employee, a
woman named Leticia. He testified that he knew this because Leticia
worked on his packaging line and the employees on the line were aware
that she was upset about having just been terminated by Carmen Reyes.
That same day, according to Espinosa, Paz-Vasquez approached the
packaging line, and employees asked her why Leticia had been fired.
Paz-Vasquez replied that Leticia “was a woman with too many prob-
lems [and] was too friendly with the men.” However, during cross-
examination, Espinosa contradicted himself and admitted that it was
Carmen Reyes and not Paz-Vasquez, who actually fired Leticia.
Espinosa further testified that, as a result of being sent home by Lo-
pez for 2 days, he lost 2 day’s pay.
D&F INDUSTRIES 633
that she reported Espinosa’s continued tardiness to Lucho Lo-
pez; that, one day, she took Espinosa to speak to Lopez, who
was in the shipping and receiving area; and that, after speaking
to Espinosa, Lopez sent him home and eventually transferred
him to the day shift. She denied ever terminating Espinosa.
3. The Respondents’ alleged unlawful acts and conduct
The record establishes that the Union commenced its orga-
nizing campaign amongst the Respondent Olsten temporary and
Respondent D&F full-time employees, who were working at
the latter’s Hariton and Gene Autry facilities, in September
1997, that such continued through the spring of 1998, and that
organizing activity was continuing at the time of the instant
unfair labor practice trial. In support of its efforts, the Union
sent Jose Perez, who was, in the Union’s terminology, a special
projects union representative (SPUR), and other individuals,
including alleged discriminatee, Jose Luis Rivera, an organizer
for the Union, to the two Respondent D&F facilities in order to
seek employment.40 According to Rick Eiden, the Union’s
director of organizing, unlike Perez, Rivera, who was hired by
Respondent Olsten for work at Respondent D&F’s Gene Autry
plant, and the others were “salts” for the Union and were ex-
pected to engage in organizing on being hired. Eiden further
testified that the Union’s organizers began speaking to the two
facilities’ temporary and full-time employees and visiting their
homes in December 1997 and January 1998 and continued
doing so through the spring and summer of 1998.41 In this
regard, alleged discriminatees Carolina Orozco, Claudia
Mayne,42 and Abigail Reyes, who worked at the Hariton facility
on the same packaging department line on the second shift,
each testified that she was visited at her home and solicited to
sign an authorization card by a union agent in January.43 Also,
alleged discriminatee, Salud Soria, who worked at the Hariton
facility in the packaging department on the second shift, and
former employees, Camargo and Garcia-Sosa, each testified
that, in May, she was visited at home by an agent of the Union
and solicited to execute an authorization card;44 alleged dis-
criminatee, Maria Jaramillo, testified that, in June, an agent of
the Union came to her home and solicited her to execute an
authorization card and that she did so; and alleged discrimina-
tee, Silvia Martinez, who worked at the Hariton plant in the
packaging department on the second shift, testified that, in Au-
gust at her home, she signed an authorization card for the Un-

40 Rivera applied for work at the Gene Autry facility in May 1998
and was hired by Respondent Olsten for work there. Immediately on
being hired he commenced organizing for the Union by speaking to
employees and soliciting them to sigh authorization cards inside the
plant in various working areas and outside in the parking lot.
41 Apparently, unaware of the Union’s organizing campaign and act-
ing on her own volition, employee Camerina Calderon contacted the
Union after witnessing a demonstration in support of it in June. She
spoke to Mario Brito, an organizer for the Union. Subsequently, they
met at her home, and she signed an authorization card.
42 According to Mayne, she first became aware of the Union’s orga-
nizing campaign in December 1997.
43 Each testified that she signed the proffered union authorization
card on this occasion.
44 According to Soria, while she refused to sign an authorization card
at that time, she did so at a later date.
ion on being solicited to do so by an agent of the Union. Be-
sides visits by union agents to the homes of workers at the Re-
spondent D&F facilities, employees themselves aided the orga-
nizing campaign inside Respondent D&F’s Hariton facility. As
to this, Camerina Calderon testified that, after speaking to
Mario Brito, she began speaking to her coworkers at the Hari-
ton facility, including alleged discriminatees Reyes, Orozco,
and Martinez, each of whom assisted the Union by giving her
names and phone numbers of fellow employees “so that a repre-
sentative of the Union could come by their houses and speak to
them.” Also, Orozco testified that, at the plant during work, she
spoke to alleged discriminatees Martinez, Soria, Reyes, and
Calderon about the Union, and Mayne testified that, in the plant,
she spoke to Orozco and Reyes about the Union “at the work
station.”45
Counsel for the General Counsel presented evidence that Re-
spondent D&F was aware of the ongoing union organizing
campaign, a fact which Respondent D&F concedes, and alleg-
edly engaged in unlawful conduct in order to thwart it. In this
regard, Paula Pineda Camargo testified that, although solic-
ited,46 she refused to execute an authorization card for the Un-
ion and, later that same day, informed Paz-Vasquez about the
union solicitation. According to Camargo, “I asked her what
was happening. I asked her where had they obtained my ad-
dress for them to be coming to my house. I had one of Mario
Brito’s cards and she asked me to show the card to her, and I
gave it to her and then she took the card to Lucho and then they
got a copy of that.”47 Thereafter, counsel for the General
Counsel contends, Paz-Vasquez, on behalf of Respondent, be-
gan interrogating and otherwise coercing the Respondent Ols-
ten temporary employees, whom she supervised, regarding the
Union. Thus, Camargo testified that, later in May, Paz-
Vasquez approached her, “and she asked me what I thought of
the Union. . . . I told her that the Union was good, that they help
the workers, and then she asked me if the union people had
talked bad about her and I told her, no.” Paz-Vasquez replied
that, “the union people were not going to be able to match them
. . . because [the owners] had too much money . . . . and they
could buy the Union . . . and also had good attorneys.” Like-
wise, Garcia-Sosa testified that, shortly after the union solicita-
tion at her home in May, Paz-Vasquez “came to the line where
we were all working” and “she just asked me if they had come
to my house and I said, yes. After that she asked me if I had
signed a card and I said, no.” At the end of May, according to
the witness, Paz-Vasquez again interrogated her in a different
area of the Hariton facility. “She asked again, if I had signed a
union card . . . . I told her, no, that I hadn’t. And then she said
because if you did sign the card, then the following day, you’re
not going to have a job because they’re going to fire you for
that.” While not specifically denying the above-described al-
45 Line coordinator, Luz Figueroa, testified that alleged discrimina-
tees Mayne, Soria, Reyes, and Orozco worked together on her second-
shift packaging line.
46 The union agent, who visited her home was Mario Brito.
47 Apparently, the card was a business card and not an authorization
card.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 634
legedly unlawful acts,48 Paz-Vasquez conceded that Camargo
spoke to her about the Union, and Lucho Lopez admitted that
“four or five” employees approached him, complaining about
union agents visiting their homes. At first, Lopez was only able
to recall the name of one such employee, Marcus Cineceros,
who believed that Respondent D&F had provided personal
information about him to the Union, and later recalled the name
of another complaining employee, Linda Ellis.
Howard Simon testified that he initially became aware of the
Union’s organizing campaign in June 1998. Further, based on
reports from managers that union representatives were visiting
employees at their homes and that Respondent D&F employees
were “upset” at such contacts by “strangers,” who were telling
them that they had been sent by Respondent D&F, he con-
cluded that he “had better meet with our people to give them
the straight story on what was going on.” Therefore, one day in
late June or early July, he went to the Hariton facility and gave
separate speeches to employees on the day and evening shifts,
and, a month later, he went to the Gene Autry facility and gave
similar speeches. According to Simon, at the Hariton facility,
80 to 100 employees attended the day shift speech, and 60 to 75
employees attended the second-shift speech. With regard to the
allegations of the consolidated complaint, which pertain to
Simon’s speeches that day, the General Counsel’s evidence
concerns purported unlawful comments, by him, to the second-
shift employees. As to these, Abelina Garcia-Sosa testified that
she attended the second-shift meeting and that Simon spoke in
English with Lucho Lopez and Carmen Reyes49 interpreting.
At the outset, Simon held up a union authorization card and
said that employees were complaining to him about union
agents visiting their homes and asking them to sign cards. He
then said he “knew that some other people were trying to come
into the company and they didn’t want anybody else to be man-
aging us” and asked the employees not to sign the cards as he
could solve their problems, including their “benefits,” a “raise,”
and becoming employed by Respondent D&F, just as easily as
the Union could. He then mentioned that Reyes had applica-
tions, which the employees could complete in order to become
Respondent D&F employees. Next, either translating Simon’s
words or speaking for himself, Lucho Lopez announced that
Respondent D&F was going to hire a teacher to teach English
to the employees in order to help them advance at the plant.
Finally, Simon “said whoever did not like working in the com-
pany, the doors were open for them to go and work somewhere
else because if the Union was going to come in there, they
could always lay them people off and get somebody else to
relieve them.” At that point, Simon began taking questions
from the employees, and Camerina Calderon asked why the
employees were not being given better positions. Simon re-
plied that the employees could not be given permanent posi-
tions and that he had to “study” the problem as he was new

48 Paz-Vasquez failed to specifically deny the testimony of either
Camargo or Garcia-Sosa. However, she did generally deny what was
attributed to her.
49 According to Simon, he wanted Carmen Reyes to attend the meet-
ing as the Respondent Olsten representative in order to “deal with any
issues” involving the latter’s employees and to help in the translation.
with the company and needed to meet with the employees “to
learn more about the problems.” Camerina Calderon testified
that she was present at the second-shift employee meeting, at
which Simon spoke, and that Lopez and Reyes translated his
English into Spanish. According to Calderon, at the start,
Simon announced that the plant would be moved to a different
location, “and then he said that . . . he knew that some of the
employees were going around talking about these cards and he
pulled one of them out of his coat pocket and he showed it to
all of us. And then he said that we were going to sign cards to
give permission to the Union to represent us . . . but that was
not good for us to give permission to some strangers. Because .
. . by no way, no means was a union going to be able to get in.
And also that Carmen’s office was antiunion and . . . [would]
not . . . let the Union get [in] either.” Then, an employee asked
what would happen because people already had signed cards,
and Simon replied “that the people that had signed . . . cards
were going to be taken away from the plant.” The same em-
ployee asked what if all employees had signed for the Union,
and Simon replied “that if that were the case . . . we could go
on strike but that we were all going to be dismissed. According
to Calderon, she then raised her hand and asked questions re-
garding raises for employees, rates of pay, and employment by
Respondent D&F, and Simon responded, saying he would “re-
view” the matters and “come up with a good solution for us.”
Claudia Mayne testified that, at the second-shift meeting,
Simon, with Lopez and Reyes translating his English into Span-
ish, “pulled out a union card and he said that several people
within the company were signing these cards. And he wanted
to come to an agreement with the people so that they would not
continue signing . . . these cards because the Union was no
good . . . . And if the company did not want the Union to get in
there, they were not going to.” Carolina Orozco recalled that
Simon, with Lopez and Reyes translating from English into
Spanish, said, “that he had found out about a union card that
was given to him and then he showed it to us. Then he said that
the Union was already inside the factory and that they were
distributing some cards. And he asked if any of us had asked
for the Union to come in. Then, he said he didn’t want any
strangers in the factory . . . . and that we could solve our things
as a family because the Union was going to take our money and
. . . maybe they were going to close the factory and we were
going to find ourselves without work and money. And that if
we had any problems to address them to Carmen.” According
to Orozco, Lopez then spoke on his own and said, “that if we
did not like working there that the doors were wide open and
we could go because there were a lot applications being filled
out right behind us.” Finally, Orozco further testified, Howard
spoke about things being solved for the employees, and “to get
in touch with Carmen and with Lucho and to talk to them and
that he was going to look into the personnel files of each of us
to see what he could do for us to advance.” As to what Howard
Simon said to the second-shift employees, Paula Pineda
Camargo testified, “The new owner . . . said that he knew of
somebody distributing union cards around and that he wasn’t
afraid of the Union. He told us not to sign those cards. . . .
please not to sign them.” Simon continued, saying that all the
company wanted was “forty hours of work a week” from each
D&F INDUSTRIES 635
employee and that “the union people were not going to be able
to contend with him.” An employee asked why he had called
the meeting if he was not afraid of the Union, and Simon re-
plied by pulling a union card from a pocket and saying that he
wasn’t afraid of the Union . . . . that I can always change the
company name, we would even go further away and I can al-
ways close this company . . . and the Union is not going to do
anything to me.” Also, Simon said he just wanted to show
them what they had to execute if they desired union representa-
tion. Likewise, Abigail Reyes recalled that Simon, with Lopez
and Carmen Reyes translating into Spanish, began by showing
“us a card and [saying] that . . . he had found out that the Union
was trying to get in. . . . And that he did not want the Union to
get in because they didn’t want any strangers since we all
worked there as if we were a family.50 He said that . . . there
was going to be a better future and more benefits and every-
thing was going to be better for all the workers there. And for
us not to believe that people from the Union . . . and if we ever
had a problem . . . just go to Lucho or to Carmen . . . and ex-
plain our complaints.”
Simon testified that, for his speeches to the Hariton plant
employees,51 he utilized a multipage document, entitled Main-
taining Non-Union Status, which had been given to him by
Respondent Olsten’s lawyers, that, rather than reading from the
document, he merely referred to it as “there were certain points
that I wanted covered,”52 and that he spoke in English, with
Lopez, Reyes, and Humberto Hernandez, the maintenance
manager, translating into Spanish. According to Simon, he
began each meeting by “displaying a blank unsigned union
authorization card and saying that a number of employees had
[complained to managers] about being contacted at home [by
union agents who said they had been sent by the company]
. . . .” He then told the employees that he wanted to present the
company’s position and explained that the purpose of the card
was to [give] the Union the right to represent them in negotia-
tions with the Company, that employees have the right to sign
such cards and the right not to do so, and that “it was the em-
ployee’s decision.” Continuing, Simon told the employees they
could not rely on promises from the Union, that the Company
signed their paychecks and not the Union, and that the Union
“makes its profits” from members’ union dues. Simon then
discussed a possible election, saying, “that employees would be
given an opportunity to vote for or against the Union.” He then
told the employees that, if the Union was victorious in such an
election, “there would be . . . a time for the Union to negotiate
with the company for wages and benefits. And there was no
obligation on the company to increase anything. That the com-
pany had an obligation to negotiate in good faith.” Then, he
raised the subject of a possible strike, informing the employees
that they would have to make a choice between honoring the

50 Under questioning by counsel for the Union, regarding what
Simon said while holding up the union authorization card, Reyes re-
called him saying, “that we were going to be let go.”
51 Simon averred that he has had experience giving this type of
speech to employees, having done so on two prior occasions to other
employers’ employees.
52 Simon stated that the document was visible on the table behind
which he spoke.
strike or crossing a picket line and that “if an insufficient num-
ber of employees come to work, the company would then have
a choice of either suspending its operations during the strike or
seek[ing] other workers to replace workers who are out on
strike.”53 Last, according to Simon, he spoke about communi-
cation between managers and employees, telling the employees
“that the company did not really want to have a third party
coming between us” and inviting them to go to their supervi-
sors with any “concerns” or to human resources or, if Respon-
dent Olsten, to Carmen Reyes. Thereafter, Simon further testi-
fied, he answered employees’ questions.54 In this regard, he
denied answering a question from a second-shift employee
about English language training but recalled being asked a
question about training employees who desired to earn more
money and answering that “there are a number of jobs here that
require at least a basic knowledge of the English language,
reading and writing” and that “we have plans to offer English-
as-a-second-language courses to our employees. And there
were notices up, sign up sheets already up on the bulletin
board.” Finally, during direct examination, Simon denied tell-
ing employees not to sign union cards or they could be termi-
nated for supporting the Union. During cross-examination,
Simon stated his belief that his interpreters confined themselves
to translating his words into Spanish.
Three other witnesses testified in Respondent D&F’s behalf
regarding Simon’s speech. Lucho Lopez stated that he recalled
nothing about Simon’s remarks to either the first or the second-
shift employees at the Hariton plant. However, he did manage
to contradict Simon, denying that he interpreted for Simon
during the second-shift meeting and stating that Simon only
mentioned the Union after questions on the issue by employees,
and he could not recall either Simon utilizing any printed mate-
rial during either speech or Simon mentioning Respondent
D&F’s options during a strike. Maria Paz-Vasquez, who de-
nied interpreting for Simon during his second-shift speech or
saying anything during the meeting with employees, recalled
little of what Simon said but did remember “he didn’t say any-
thing about any authorization cards or anything.” Carmen
Reyes, who contradicted Lopez, stating that the latter did, in
fact, interpret during Simon’s speech to the second-shift em-
ployees, and Paz-Vasquez, stating that, during the second-shift
meeting, the latter spoke about her employment experience
with Respondent D&F, corroborated Simon, testifying that,
after introducing himself, the latter mentioned “being aware
that employees have complained that there was some union
representative going to peoples’ homes, and he held up a union
. . . card to let employees know that they may be asked to sign
53 Simon conceded failing to draw a distinction between temporary
and permanent strike replacements.
Under questioning by the undersigned administrative law judge,
Simon changed his testimony, stating that he explained to the employ-
ees a third-company option in the advent of a strike—“Well, the
choices were that the company could suspend its operations while the
strike was going on. . . . We could work with the reduced workforce . . .
or three . . . to replace employees during the strike, it could go out and
hire replacement workers.”
54 Simon denied knowing or inquiring into the identities of any ques-
tioner at either the Hariton plant or the Gene Autry plant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636
an authorization card. He [said] . . . that it was their right to
sign or not sign a card.” He also said employees had the right
not to speak to the union representatives and encouraged com-
munication with the employees and that employees could speak
to their supervisors or him if necessary. Reyes denied that
Simon threatened any employee with termination or that he
threatened to close the plant. On this latter point, she recalled
that Simon “might have mentioned that we were going to be
moving to a new location . . . a new site, to a bigger facility.”
There is no dispute that, pursuant to Respondent D&F’s di-
rective, four of the alleged discriminatees (Claudia Mayne,
Abigail Reyes, Carolina Orozco, and Salud Soria) were laid off
by Respondent Olsten on July 7, 1998. As stated above, they
worked during the second shift at Respondent D&F’s Hariton
facility on the same packaging line, with Luz Figueroa as their
line coordinator; they each engaged in activities in support of
the Union; and they spoke with each other about the Union at
the plant. Further, according to Reyes, on the day before the
layoffs, she spoke to Camerina Calderon “at the line when we
were getting set up to work on the line.” No one was listening,
and Calderon “asked me how many workers from that line had
signed up with the Union. And she told me to write them down
and so I did. I wrote the names down on a piece of paper. And
she reached backward . . . to receive the paper and I handed it
to her.”55 As to the layoffs, Orozco and Mayne each testified
that, on July 7, Carmen Reyes telephoned her at home.
According to Orozco, Carmen Reyes telephoned her and in-
formed the alleged discriminatee she did not have a job any
longer as “there was no more work [at the Hariton plant];”
according to Mayne, Reyes telephoned her and “that she was
sorry but that she had to lay me off . . . . because the production
had lessened.” Soria testified that, on July 7, she reported for
work, was summoned to Reyes’s office, and informed by the
latter “there was no more work for me any longer.” Likewise,
Abigail Reyes testified that, on July 7, Carmen Reyes instructed
the former to report to her office and told the alleged
discriminatee she was being laid off “indefinitely.” While the
ostensible reason for the layoffs of the above four individuals
was a lack of work, Camerina Calderon testified that,
subsequent to the layoffs but prior to the start of work that day,
while on her way to obtain some necessary cardboard, as she
passed by line 3, she overheard Paz-Vasquez and Figueroa
speaking.

denying such comments, Paz-Vasquez failed to specifically
56 According to Calderon, “Lucy Figueroa asked
Maria Paz what had happened to her workers . . . because she
needed the people to get to work,” and “Maria Paz [replied]
that they were never going to show because they were fired. . . .
and that she wanted to see how the Union was going to protect
Abigail and Carolina.” Paz-Vasquez added that “she had [let
them go] by orders from upstairs” for signing union cards.
“And then she said, that’s the way they all going to be leaving,
all the ones who signed . . . them union cards.” While generally

55 When asked if Calderon explained why she wanted to know which
employees were in favor of the Union, Reyes, who initially denied
knowing that Calderon was a union adherent, stated, “I . . . knew that
she was already with the union people.” Also, Reyes denied placing
her own name on the paper as “I knew that I had already signed. I did
not deem it necessary.”
56 According to Calderon, the machinery had not yet been started.
comments, Paz-Vasquez failed to specifically deny the above
attributed conversation. Further, according to Calderon, 2 days
later, feeling “guilty” over the layoffs of her
coworkers, she approached Paz-Vasquez at the entrance to the
employees’ cafeteria. Calderon had with her a letter in which
she identified herself as the Union’s helper inside the Hariton
facility, offered it to Paz-Vasquez, and requested that she take it
to Lucho Lopez. Paz-Vasquez opened and read the letter and
asked “why do you want to do this if you know we all like you
here and we all respect you.” She added “that the company has
a lot of money and . . . the Union is not going to get in” and
“that we were going to find ourselves out of a job and without
any help.” Continuing, Paz-Vasquez “told [Calderon], if you
like, I’m going to pretend that I didn’t see any letter but you are
not going to continue to do these things.” Notwithstanding
what Paz-Vasquez told her, Calderon implored her to take the
letter to Lopez. Paz-Vasquez agreed to do so, and Calderon
observed her walking towards Lopez’ office.57 Paz-Vasquez
failed to specifically deny the occurrence or substance of this
conversation.
Respondent D&F contends that the July 7 layoffs of Mayne,
Soria, Reyes, and Orozco were incident to a series of four eco-
nomic layoffs of temporary Respondent Olsten employees from
its Hariton facility in May, July, September, and October 1998,
and Respondent Olsten contends that it laid off the above-four
alleged discriminatees based on Respondent D&F’s command
to do so because of a lack of work. In these regards, Howard
Simon testified that 70 percent of Global Health Science’s total
business has been tied to contracts with Herbal Life Interna-
tional; that, pursuant to a contract, which expired in January
1998, GHS and a predecessor possessed a right of first refusal
of all of HLI’s manufacturing requirements, which right meant,
in effect, that GHS and its predecessor had been the sole manu-
facturer of HLI’s product, its “production department.” How-
ever, according to Simon, pursuant to the parties’ successor
agreement, HLI became obligated to purchase only a minimum
of 80 percent of its product needs from GHS and “the net
manufacturing prices were reduced to [HLI] by an average of
10 percent.”58 Moreover, Simon continued, due to economic
problems in some of HLI’s markets, particularly in Asia and
Russia, during 1998, GHS experienced a “fall off” in business
of “over 20 percent” and made no shipments of HLI’s products
to Russia for a 6-month period. Simon testified that, during the
spring, summer, and fall months of 1998, “to compare it to the
prior year, sales were down more than 20 percent. Part of that
would be attributable to price decrease. But part of it certainly
57 Lucho Lopez testified that, amongst the employees, the only union
supporter, whom he knew, was Calderon because “she talked about it,
especially with me.” He added that “the first time . . . she told me that
she was a union supporter was “in July sometime. It was probably after
the first layoff.” She told him “she was a union supporter. And my
answer was . . . that was the individual decision whether to support or
not.” Calderon failed to deny Lopez’ testimony.
58 Simon conceded that it was hard for GHS to quantify whether the
80 percent figure represented a production decrease as “we didn’t al-
ways know . . . what [HLI’s] total requirements were. It was sort of a
good faith kind of deal.”
D&F INDUSTRIES 637
was attributable to this loss of volume.” This is because
“every item that we manufactured for [HLI] is bottled. Not
every item we manufacture for other clients is bottled. We sell
a number of items in bulk.” Therefore, according to Simon,
given the reduced demand, “at some point in time we have to
shut machines off” and layoffs became necessary; the decisions
on who to lay off “would be made by Steve Posey and Lucho
Lopez. They decide “what the manpower requirements are” at
the Hariton plant “and then move accordingly.”59 Simon testi-
fied that the total number of laid-off employees “was some-
where around 70 to 80 as I recall” and said, “[W]e have records
to show what those numbers were. I’m not familiar with all the
numbers. It’s my guess.”60
With respect to the layoffs, Lucho Lopez, who stated that
layoffs were frequent in the “early summer” when “it slows
down,” corroborated Simon that there were layoffs of Respon-
dent Olsten’s temporary employees in the packaging depart-
ment during the summer of 1998. “The first layoff it was in
July,” and “we tried to hold the people . . . until the work ar-
rives. But it was not happening that way. And so we regularly
start letting people go.” Lopez testified further that he was
informed of the need to lay off employees by Pete Pescetti, who
made the decision and who informed Posey and him. Pescetti
“said we don’t have enough production for all the lines, that we
need to shut . . . two to three lines,” and “he preferred to reduce
second-shift first.61 According to Lopez, the number of laid-off
employees was to total between 30 and 45 employees, it was
his task to decide which of the Respondent Olsten temporary
workers would be laid off, and Pescetti afforded him just “two
or three” days to implement the entire layoff. Given the short
time for his selection process, Lopez spent 80 percent of his
time on this project. In selecting the Respondent Olsten tempo-
rary employees, who were to be laid off, Lopez considered his
notes on the temporary employees’ performance, attendance,
and seniority over the prior “eight to nine months.”62 Of the
four alleged discriminatees, who were laid off on or about July
7, Lopez had no specific recollection regarding Claudia Mayne
and Carolina Orozco. He recalled that his decision as to Salud
Soria was based on a lack of work and that, as to Abigail
Reyes, originally recalling that she was laid off based on a lack
of work, he later testified that she was selected for layoff due to
a general “lack of work” and her “performance.”63 Lopez could
not recall ever speaking to Reyes about her job performance,
and Respondent D&F offered no documentary evidence with
regard to Lopez’ selection process.

59 Respondent D&F offered no business records, supporting Simon’s
testimony, into the record.
60 None of the records was offered to corroborate Simon’s testimony
concerning the number of layoffs.
61 It is not entirely clear, but I believe that two of the packaging lines
on the second shift were to be closed. Moreover, as Lopez made clear,
shutting a line did not necessarily mean that the people on that line
would be among those laid off.
62 The basis of Lopez’ notes on employees’ production were the re-
ports submitted to him by his assistants, including Rosa Jaramillo and
Maria Paz-Vasquez.
63 With regard to Reyes’ performance, Lopez stated, “Normally, she
was slower than the rest of the personnel.”
Carmen Reyes confirmed that Respondent D&F requested
that Respondent Olsten lay off some of its temporary workers
at the Hariton facility during the summer of 1998. “Lucho
Lopez would let me know that production was slowing down
and that there would be the possibility of layoffs coming up
. . . . and he would usually give me a list of employees.” Ac-
cording to Reyes, Lopez would always inform her that the rea-
son for the layoffs was “lack of work,” and her procedure was
then to telephone each affected worker and inform him or her
of the layoff. As proof of the layoffs, Respondent Olsten of-
fered a series of four memoranda from itself to Respondent
D&F, dated June 1, July 9, September 10, and October 6 re-
spectively, setting forth the layoffs of approximately 48 of its
temporary employees from the latter’s Hariton facility between
June 1 and October 6. The records disclose that alleged dis-
criminatees Reyes, Orozco, Soria, and Mayne were included in
a group of nine Respondent Olsten temporary employees, who
were laid off from the packaging department at Respondent
D&F’s Hariton facility on or about July 7.64
Alleged discriminatee, Maria Jaramillo, who worked on the
first shift in the packaging department at the Hariton facility,
testified that she initially became aware of the Union’s organiz-
ing campaign in mid-June when a union agent visited her home
and solicited her to sign an authorization card. She did so.
Subsequently, in August, “I was home, and [Rosa Jaramillo]
called me by phone. . . . She asked me if I had joined the Un-
ion. And I told her, no. And she said that Lucia Reyes had told
her that she knew that I had joined up with the Union and that I
had signed . . . a card. . . . I told her I didn’t know where Lucia
could have gotten this information when it is not true. And . . .
she [replied that] . . . Lucho Lopez already knows that you
joined up with the Union and he knows everything. He even
knows that you signed . . . a card.”65 Marta DeLeon Ornelas,
who was a Respondent Olsten temporary employee at the Hari-
ton facility, who worked during the day shift in the packaging
department, and who was laid off on October 6, testified that
she was away in Mexico and did not become aware of the Un-
ion’s organizing campaign until subsequent to her return on
July 27. Shortly thereafter, according to Ornelas, she was
working with a coworker, Arnelia Pacheco, when Rosa
Jaramillo approached and “she asked me if I had signed a union
card so I said that I had not signed anything, that I had not been
informed because I had been in Mexico and I was just coming
back to work. . . . She said not to sign anything, that it was not
convenient for me, that it wasn’t good.”66 Alleged discrimina-
tee, Silvia Martinez, who worked on the second shift in the
packaging department at the Hariton plant, testified that, on
64 According to Respondent Olsten’s Exh. 2, those individuals laid
off on or about July 7 were Manuel Perez, Rafael Goxion, Abigail
Reyes, Carolina Orozco, Claudia Mayne, Salud Soria, Luz Alba,
Maritza Sanchez, Patricia Soria, and Juana Villanueva.
65 Rosa Jaramillo specifically denied interrogating Maria Jaramillo
as to whether she signed an authorization card for the Union but failed
to specifically deny the latter’s testimony regarding their telephone
conversation.
66 While generally denying having interrogated employees as to
signing cards for the Union, Jaramillo failed to specifically deny this
conversation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638
August 5, a union agent visited her home and that she executed
an authorization card for the Union during her meeting with the
Union’s agent. According to Martinez, after signing the card,
she requested that the union agent give her a letter, stating that
she was an “activist” on behalf of the Union. The agent did so,
and Martinez took the document to the plant in the afternoon.
As she was punching the timeclock, she saw Lucho Lopez and
approached him. “I told Lucho that Maria Paz had reprimanded
me and had told me that she did not want me, us, to help
Camerina Calderon to make boxes.” She then quoted Paz-
Vasquez as saying, “Lucho says that he doesn’t want you to
help Camerina.” To this, Lucho replied, “that he had not told
Maria that.” At this point, according to Martinez, she handed
Lopez an envelope, in which she had placed the union agent’s
letter. While unable to recall whether Lopez opened the enve-
lope and read the letter in front of her,67 she did recall him ask-
ing what was in the envelope, and “I told him . . . that I was
making myself known that I was a union activist.” She added,
“I told him that I wanted to be known as a member of the Un-
ion because I do want the Union in here because we don’t have
any protection of any source and we don’t have help from no-
body, and . . . I feel we need it. . . . He said why did you do it,
out of vengeance, and I said no sir, not out of vengeance. . . .
He said do you think that paper is going to help you in any way
when they fire you. . . . they are going to dismiss you for hav-
ing dealings with the Union, for doing that. . . . He asked me if
I know that I was violating the policy of the company . . . be-
cause I had signed up with the Union.”68
There is no dispute that alleged discriminatees Jaramillo and
Martinez were laid off on or about September 8 amongst a
group of nine Respondent Olsten temporary employees, who
were laid off from the packaging department at Respondent
D&F’s Hariton facility.69 According to Jaramillo, a few days
after her layoff, she went to the Hariton facility and had a brief
conversation with Carmen Reyes during which she asked Reyes
whether Respondent D&F had given Reyes a bad report on her.
Reyes, who failed to deny this conversation, answered “no” and
added, “[T]here’s nothing wrong about you, there’s no more
work, you have been let go.” Alleged discriminatee Martinez
testified that the first word of her layoff came from someone
named “Emmy,” who informed Martinez that “they didn’t have
any more work for me there, that D&F did not want me to work
there, that I could not go to work at D&F.” Subsequently, ac-
cording to Martinez, she spoke to Carmen Reyes, who told her
the reason for the layoff was “that she had received orders from

67 During cross-examination, Martinez stated that Lopez refused to
take the letter from her and that she opened the envelope so that he
could see the letter.
68 Lucho Lopez testified that there were “several times” when Marti-
nez gave him envelopes, which contained notes, referring to doctor’s
appointments or appointments with her children’s teachers at school.
He specifically denied ever receiving a letter from her regarding her
support for the Union or being aware of her support for the Union.
69 According to Respondent Olsten’s Exh. 3, those laid off on or
about September 8 included first shift employees Juana Flores, Maria
Jaramillo, Daniel Saravia, and Cezar Jimenez and second-shift employ-
ees Emilia Sanchez, Evangelina Median, Silvia Martinez, Julio Montes,
and Norma Figueroa.
higher up that I had done something against the company.”
Reyes failed to deny this conversation.
Lucho Lopez made the decisions to layoff alleged discrimi-
natees Jaramillo70 and Martinez. With regard to the former,
while initially testifying that Jaramillo was laid off because of
lack of work, Lopez later testified that he selected Jaramillo for
layoff because she was spending too much time in the restroom
and using bad language and that said problems had continued
unabated for “let’s say five months.”71 He further testified that
“there had been “a couple of incidents” during which she had
used “offensive, bad language” to fellow employees; that “peo-
ple were complaining, a religious person . . . brought it to my
attention;” that, while he was unable to recall the name of this
worker, “several people” complained, including employee,
Elena Bermudez. Lopez added that he personally investigated
these complaints and heard her once “using foul language” by
the lunch truck. As to spending excessive time in the restroom,
Lucho Lopez insisted that “I investigated” [this assertion] and
determined that Jaramillo would spend 10 to 15 minutes in the
restroom whenever she visited the facility. With regard to
whether he reported his problems with Maria Jaramillo to Car-
men Reyes, when called as a witness by counsel for the General
Counsel, Lopez testified, “I talked to Carmen about Maria. . . .
talking too much time to go to the restroom;” when called as a
witness by counsel for Respondent D&F, he was less certain,
stating he could not recall the specific individual but he did tell
someone from Olsten, “[W]e had a person that was using foul
language.” Finally, according to Lopez, he never approached
Maria Jaramillo about her misbehavior72 and, notwithstanding
the foregoing, Jaramillo was actually laid off because of “the
lack of work.” Rosa Jaramillo testified that she had no prob-
lems with Maria Jaramillo except “I did notice that she would
curse a lot and use bad words with the other lady employ-
ees. . . . They told me that sometimes.” In particular, accord-
ing to Rosa, she heard Maria curse at work, yelling “bitch” and
“whore” at other women. While she added that she informed
Lopez about Maria’s cursing, Lopez failed to corroborate her.
Likewise, Carmen Reyes failed to corroborate Lucho Lopez
with regard to reports to Respondent Olsten concerning Maria
Jaramillo’s misconduct.
Regarding Silvia Martinez, under direct examination by
counsel for the General Counsel and, subsequently, by counsel
for Respondent D&F, Lucho Lopez only mentioned lack of
work as the reason for her layoff in September. However, dur-
ing cross-examination by counsel for the General Counsel,
when again asked the reason for her inclusion in the September
70 Asked if he was required to layoff anyone at the time Maria
Jaramillo was laid off, Lopez first answered, “No. . . . But production
was slowing down. And so we laid people off regularly.” Asked the
same question moments later, Lopez responded, “Yes,” saying
Jaramillo was the worker whom he chose.
71 As I understand Lopez’ testimony, Respondent D&F never fires
anyone for cause—“when we have work . . . we never give a layoff to
anybody.” Thus, while Lopez maintained that he selected Jaramillo for
layoff based on her excessive time in the restroom and her proclivity
for using bad language, he would not have requested her termination by
Respondent Olsten for those reasons.
72 She denied using bad language at work.
D&F INDUSTRIES 639
layoff, Lopez, for the first time, stated, “That was lack of work.
. . . And attending.” As to Martinez’ purported absences, Lo-
pez later explained, “almost every week she comes to me to ask
for permission, directly to me” and “once every two weeks” she
either would be absent or ask to leave early. He added that
Martinez would always have doctors’ slips or notes from school
concerning her children; that he would send these to Respon-
dent Olsten as “we don’t keep documents;” and that he reported
Martinez’ attendance problems to Respondent Olsten for any
discipline. Neither Respondent D&F nor Respondent Olsten of-
fered any documentary evidence supporting Lopez’ testimony,
and Carmen Reyes failed to corroborate him as to receiving re-
ports of Martinez’ attendance problems.73
The remaining alleged discriminatee is Jose Luis Rivera,
who began working for Respondent Olsten at Respondent
D&F’s Gene Autry facility in May 1998. He worked on the
second shift, processing pills and mixing powders. As stated
above, while working at the Gene Autry facility, Rivera re-
mained in the employ of the Union and was engaged in
organizing for the Union at the Gene Autry facility. To this
end, Rivera would speak to employees in the plant’s parking lot
and, during working hours, in hallways and in the mop cleaning
room about the Union. Further, according to Rivera, he solic-
ited employees, in the parking lot, to execute authorization
cards for the Union. Specifically, Rivera recalled the names of
two individuals, Gilberto Garcia Estrada and Edwin Madrano,
with whom he spoke about the Union “in the hallways,” and,
according to Rivera, “sometimes they were together and some-
times they were not.” These conversations were always during
worktime, were always loud “because there is a lot of noise
there,” and could have been overheard by one of Rivera’s su-
pervisors, who could have easily observed them while “walking
around the hallways.” Also, Rivera attended Howard Simon’s
speech to the second-shift employees at the Gene Autry facility
in June and was just one of two employees who asked a ques-
tion. According to Rivera, he mentioned an employee, who had
injured his back and, subsequently, had been laid off, and “I
asked them why they said that they wanted to fix that now that
the Union was coming around, how come they didn’t take care
of that before this happened.” He added that no other employee
mentioned the Union at the meeting.
There is no dispute that Rivera was laid off from Respondent
D&F’s Gene Autry facility on August 24. That morning, Car-
men Reyes telephoned Rivera at home and, according to the
alleged discriminatee, said “that she was going to be laying me
off because of an adjustment in personnel.” He asked to speak
to her in person and Reyes said she could be at the Gene Autry
plant in the afternoon. Later in the day, Rivera did meet with
Reyes in an office at the facility. Rivera testified, “She asked
me why I had gone to the company when she had called on the
phone to tell me that she was laying me off. . . . and I told her
for her to remember that I had told her previously . . . that I

73 The record discloses that, subsequent to the Hariton facility lay-
offs in June, July, September, and October, Respondent D&F, later in
October, began hiring temporary employees at the Hariton facility—
from Interim, the successor to Respondent Olsten as the supplier of
temporary employees to Respondent D&F.
needed to see her in person.” Then, Rivera handed an enve-
lope, with a letter inside, to Reyes. “She told me that she could
not take that letter because [it] was directed to Mr. Marconi and
that she was not Mr. Marconi.”74 She added that he could mail
the letter if he so desired. Rivera asked why she would not
accept the letter if she was the person who had hired him.”
Then, “she told me that she was not going to take it and that if I
wanted to pass out some flyers about the Union to go outside
and do it outside, that she didn’t want to see me in there.”75
Respondent D&F offered no evidence regarding, or explana-
tion for, the layoff of Rivera. Carmen Reyes testified on behalf
of Respondent Olsten and stated that the first she knew of the
layoff of Rivera was a telephone call from Sebastian Nevarez,
the manufacturing manager for Respondent D&F, and he “let
me know of two people by phone. He didn’t make a list for
me.” As to the reason for Rivera’s layoff, Reyes initially
blamed the layoff on “downsizing” at the Gene Autry facility
and, moments later, explained it resulted from a “lack of pro-
duction.” She recalled speaking to Rivera about his layoff and
telling him “that the assignment had been ended . . . . I believe
he asked about his check. And I told him the check would be
available at the branch for him to pick up.” Subsequently, ac-
cording to Reyes, she met with Rivera at the Gene Autry facil-
ity. “And, when I saw him there, I told him that his assignment
had ended. There was no reason for him to be on site at the
client’s address. He was an Olsten employee and he could go
to the branch for any help. . . . He did attempt to give me an
envelope,” but she refused to accept it because “it had Dick
Marconi’s name on it” and “I didn’t feel comfortable accepting
someone else’s mail.” Reyes denied saying anything to Rivera
about flyers and was not aware of any union activities by any of
the alleged discriminatees, including Rivera. Reyes recalled
attending Howard Simon’s June speeches to employees at the
Gene Autry facility but, while recalling that “one or two em-
ployees spoke,” had no recollection of Rivera asking a ques-
tion. She added that she would not have recognized Rivera
even if he had asked a question—“I have too many employees.
I don’t recognize all of them.” Finally, Reyes identified Gen-
eral Counsel’s Exhibit 2 as a computer-generated assignment
history form for Rivera, a type of form which is maintained by
Respondent Olsten for all of its temporary employees. On
Rivera’s form, as a reason for the end of his assignment to Re-
spondent D&F, is the following comment—“becuz of attitude
during meeting.” Reyes testified that her assistant, Elizabeth
Escamilla was the individual who wrote the words on the form
and that she obtained the information most “likely from me.”
Given the wording on the document, Reyes conceded the above
notation “appears” to be the reason for Rivera’s layoff.
B. Legal Analysis
Initially, I must decide whether, as alleged in the consoli-
dated complaint, Respondent D&F and Respondent Olsten
constituted joint employers of the Respondent Olsten temporary
74 While the record is not entirely clear, Marconi apparently has an
ownership interest in Respondent D&F.
75 After his layoff from the Gene Autry facility, Respondent Olsten
did find another job for Rivera at a company, called Brasstech, at which
he worked for several months.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
employees, who were working at Respondent D&F’s Hariton
and Gene Autry facilities during the spring, summer, and fall of
1998. In this regard, Board law is quite clear. In NLRB v.
Browning-Ferris Industries, 691 F.2d 1117 (3d Cir. 1982), the
court noted that, unlike the two nominally separate companies
in a “single-employer” relationship, the “joint employer con-
cept” does not require the existence of a single-integrated busi-
ness enterprise. Rather, the latter concept “recognizes that the
business entities involved are, in fact, separate but that they
share or co-determine those matters governing the essential
terms and conditions of employment.” Id. at 1123. While, in
TLI, Inc., 271 NLRB 798 (1984), adopting the United States
Court of Appeals for the Third Circuit’s definition of a joint-
employer relationship as its own, the Board embellished on it:

[In Browning-Ferris Industries] the court found that, where
two separate entities share or codetermine those matters gov-
erning the essential terms and conditions of employment, they
are to be considered joint employers for purposes of the Act.
Further, we find that to establish such status, there must be a
showing that the employer meaningfully affects matters relat-
ing to the employment relationship such as hiring, firing, dis-
cipline, supervision, and direction.

In Laerco Transportation, 269 NLRB 324 (1984), the Board
concluded that evidence of minimal and routine supervision of
employees, limited dispute resolution authority, and the routine
nature of work assignments was insufficient to establish a joint
employer relationship. In contrast, in Branch International
Services, 327 NLRB 209 (1998), the Board concluded that a
company, which leased its entire workforce from a company,
which was engaged in the business of leasing employees to
other businesses, constituted the joint employer of said employ-
ees when the record evidence established that the former hired
and directed the work of the leasing company’s employees and
utilized its own disciplinary system, “which made explicit pro-
vision for discharge.” Id. at 11.
The record evidence discloses that Respondent Olsten hires
its own employees, maintains all employment records, is re-
sponsible for workplace injuries to its employees, and is re-
sponsible for disciplining its own employees; that the work of
the Respondent Olsten’s temporary employees is of a routine
and repetitive nature and employees must report absences to
Carmen Reyes, and that Respondent D&F’s supervision of the
Respondent Olsten employees is minimal, consisting of assign-
ing them to their daily jobs, pointing out violations of Respon-
dent D&F’s workplace rules, and ensuring that they are per-
forming their assigned tasks. However, the record evidence
also discloses that Respondent D&F determined the number of
available temporary employee job vacancies to be filled by
Respondent Olsten’s hires; established the rates of pay for the
latter’s employees and provided the funds from which they
were paid; decided when overtime was required and the number
of temporary employees necessary for such work; and, appar-
ently, was authorized to suspend Respondent Olsten’s tempo-
rary employees from work. As to the latter point, Estaban
Espinosa testified that he was sent home by Lucho Lopez while
the latter investigated his putative termination by Paz-Vasquez
and that he was not paid for the 2 days he was off work, and
Paz-Vasquez corroborated Espinosa that he was, in fact, sent
home by Lopez. Moreover, of utmost significance to the joint
employer issue, when necessary, Respondent D&F simply de-
manded that Respondent Olsten lay off or terminate temporary
employees, determined the number of temporary employees to
be laid off, and selected the affected workers. Whitewood
Maintenance Co., 292 NLRB 1159, 1162 (1989). In this latter
regard, there is no record evidence that Respondent Olsten was
authorized to question or, in fact, ever questioned Respondent
D&F as to its decision to lay off or terminate employees or its
selection of employees for layoff, and, at least with regard to
the July, August, and September layoffs, at issue, the record
evidence is that Carmen Reyes, Respondent Olsten’s on-site
manager, acted in a sycophantic manner, always honoring Re-
spondent D&F’s demands and never questioning Respondent
D&F as to the number of individuals affected by the layoff, the
individuals who were selected for layoff, or Respondent D&F’s
rationale for the layoffs. Capitol EMI Music, 311 NLRB 997,
998 (1993).76 Contrary to counsel for Respondent D&F,77 in
the above circumstances, the conclusion is warranted that Re-
spondent D&F participated meaningfully in the exercise of
control over matters governing the terms and conditions of
employment of Respondent Olsten’s temporary employees,
and, accordingly, I find that the General Counsel has estab-
lished that, at all times material, Respondent D&F and Respon-
dent Olsten constituted joint employers as alleged in the con-
solidated complaint. Capitol EMI Music, supra.
I turn next to whether Respondent D&F’s assistants to the
packaging manager at its Hariton facility, Rosa Jaramillo, and
Maria Paz-Vasquez, are its supervisors within the meaning of
Section 2(11) of the Act and its agents within the meaning of
Section 2(13) of the Act. As to their status as statutory supervi-
sors, I note, at the outset, that the burden of establishing that an
individual is a supervisor within the meaning of Section 2(11)
of the Act rests on the party—the General Counsel—who as-
serts supervisory status. Hausner Hard-Chrome of Kentucky,
Inc., 326 NLRB 426 (1998). Section 2(11) of the Act defines a
supervisor as

any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or to ef-
fectively recommend such action, if in connection with the

76 Counsel for Respondent D&F argues that the laid-off employees
remained employees of Respondent Olsten; however, this misses the
point. Thus, each of the laid-off employees was severed from the work
force at either the Hariton or Gene Autry facilities, with no prospect of
returning to work at a Respondent D&F facility.
77 Counsel rely on Teamsters Local 776 (Pennsy Supply), 313 NLRB
1148 (1994); TLI, Inc., supra; and Laerco Transportation, supra, as
support for their contention that the limited and routine supervision of
the Respondent Olsten temporary employees by Respondent D&F
negates the existence of a joint-employer relationship. However, unlike
the cited decisions, Respondent D&F’s ability to dictate the discharge
and layoff of Respondent Olsten’s employees and the former’s control
over overtime for and the wage rates of the temporary employees estab-
lishes sufficient control over their terms and conditions of employment
to support a joint-employer relationship.
D&F INDUSTRIES 641
foregoing the exercise of such authority is not of a routine or
clerical nature but requires the use of independent judgment.

The statutory indicia quoted above are read in the disjunctive;
as stated by the Board in Great American Products, 312 NLRB
962 (1993), “an individual may be deemed a supervisor within
the meaning of [the above provision] if it is shown that he or
she possesses the authority to engage in any one or more of the
functions enumerated there and uses independent judgment in
exercising such authority. Performance of those functions in a
merely routine, clerical, perfunctory, or sporadic manner will
not suffice.” By the foregoing, Congress meant to ensure that
only individuals, who are vested with “`genuine management
prerogatives’” are included within the definition, and “the
Board must judge that the record proves that an alleged super-
visor’s role was other than routine communication of instruc-
tions between management and employees without the exercise
of any significant discretion.” Id. Quadrex Environmental Co.,
308 NLRB 101, 102 (1992). Finally, the Board has a duty not
to construe the statutory language too broadly because the indi-
vidual found to be a supervisor is denied the employee rights
that are protected under the Act. Azusa Ranch Market, 321
NLRB 811, 812 ((1996); Hydro Conduit Corp., 254 NLRB
433, 437 (1981).
Contrary to the arguments of counsel for the General Coun-
sel, I do not believe that, at any material time , either Rosa
Jaramillo or Maria Paz-Vasquez possessed any of the indicia of
supervisorial status within the meaning of Section 2(11) of the
Act. Thus, no witness testified, nor does the record disclose
any evidence, that the assistants to Lucho Lopez were author-
ized, in the interest of Respondent D&F, to hire, suspend, lay-
off, recall, promote, or reward employees, to adjust their griev-
ances, or to recommend such actions. As to whether they were
authorized to discharge, the only evidence that Lopez’ assis-
tants possessed such authority came from Estaban Espinosa.
As to this, it is clear that, on confronting Espinosa at Lopez’
instruction, Paz-Vasquez said something to cause the employee
to believe that he had lost his job. Thus, Lopez himself admit-
ted that, when Espinosa approached him, the employee asked
why he had been laid off. However, notwithstanding whatever
Paz-Vasquez may have said to Espinosa, it is clear that she did
not, in fact, discharge him, for, by all accounts, Lopez disre-
garded his assistant’s assertion to Espinosa and, instead, sus-
pended the employee pending his own investigation of
Espinosa’s tardiness and absence problem. Accordingly, con-
trary to counsel for the General Counsel, I do not believe the
record evidence warrants a finding that Jaramillo and Paz-
Vasquez were empowered to discharge employees. With re-
gard to their authority to responsibly direct the work of the
packaging line employees at the Hariton facility and to transfer
them between lines, the testimony of all witnesses establishes
that the work performed by Respondent D&F’s own employees
and by Respondent Olsten’s temporary employees on the pack-
aging lines was repetitive, uncomplicated, and interchangeable
and that, on a daily basis, the main functions of Respondent
D&F’s assistants to the packaging manager, including Jaramillo
and Paz-Vasquez, were to ensure that each packaging line had
the proper packaging implements and necessary documents and
that the packaging process proceeded on schedule during the
workday and to observe that the employees on the packaging
lines was performing their assigned job duties in a productive
manner. As to the former, the witnesses agree, and I find, that
the assistants to the packaging manager gave packaging as-
signments and paperwork to the line coordinators at the start of
each shift and, during the course of the shift observed that each
packaging line’s machines were operating properly, that each
line has a sufficient number of workers, and that orders are
being filled properly. As to ensuring that packaging line em-
ployees are working in a productive manner, the record estab-
lishes that Lopez’ assistants observe that the employees are not
talking excessively and not spending too much time in the rest-
rooms. There is no question that, as employees testified,
Jaramillo and Paz-Vasquez are authorized to select and shift
employees from line to line when necessary. However, such
assignments are dictated by shortages of employees on the lines
rather than any assessment of employees’ ability to perform the
work and Lopez, Jaramillo, and Paz-Vasquez were uncontro-
verted that any such transfers must be first be ordered by Lo-
pez. As in J. C. Brock Corp., 314 NLRB 157, 158, (1994), it
appears that Respondent D&F’s packaging process was of a
routine nature, with the employees generally needing little di-
rection in performing their duties. Further, Jaramillo’s and Paz-
Vasquez’ authority to transfer employees between lines and to
ensure that employees perform their assigned job tasks were
functions of “routine work judgment and not the type of inde-
pendent judgment required of a statutory supervisor.” Id. Also,
in my view, whatever authority Jaramillo and Paz-Vasquez
possessed was derived from the necessity of completing work
correctly and on schedule and did not involve their judgment of
employees’ skill levels In these circumstances, I do not believe
that Jaramillo and Paz-Vasquez responsibly directed the work
of the packaging line employees or used independent judgment
in transferring employees between packaging lines.
Regarding the assignment of overtime work, I do not rely on
the testimony of either Jose Perez or former employees, who
testified that Lopez’ assistants select the workers, to whom
overtime work shall be assigned. Rather, noting that Camerina
Calderon, an honest and forthright witness, and Estaban
Espinosa corroborate them on this point, I credit Lopez,
Jaramillo, and Paz-Vasquez that either the vice president of
operations or the Hariton plant manager notify Lopez when
overtime work will be required; that, in turn, he informs his
assistants as to how many employees will be needed; that such
work is given on a strictly voluntary basis; and that, in such
circumstances, the role of Lopez’ assistants is merely to inquire
if employees desire to stay and work overtime. Accordingly,
with regard to overtime, I believe that Jaramillo’s and Paz-
Vasquez’ authority is routine and involves no independent
judgment. Likewise, with regard to discipline, the record evi-
dence establishes that the involvement of Lopez’ assistants,
including Jaramillo and Paz-Vasquez, is routine and does not
require any discretion. Thus, the record evidence is that they
confront employees, who are violating work rules by spending
more time than necessary in the restroom, talking excessively,
or being tardy for work, and remind them of Respondent
D&F’s rules in these regards; that Jaramillo and Paz-Vasquez
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
report continued violations of said rules to Lopez; that, as in the
case of Estaban Espinosa, Lopez independently investigates
such reports of continued rules violations and decides on the
appropriate discipline; and that, if a Respondent Olsten tempo-
rary employee is involved, Lopez reports the matter to Carmen
Reyes, who is responsible for imposing discipline. Next, while
there is evidence that his assistants regularly submit appraisals
of workers to Lopez, there is no evidence that such “meaning-
fully affect[ed] employees’ terms and conditions of employ-
ment.” Hausner Hard-Chrome of Kentucky, Inc., supra at 1.
Finally, regarding their authority to permit employees to leave
work early or to permit employees to take time off, Lopez,
Jaramillo, and Paz-Vasquez admitted that the assistants, includ-
ing Jaramillo and Paz-Vasquez, are authorized to permit em-
ployees to leave early in case of emergencies, and alleged dis-
criminatee, Silvia Martinez, testified that Paz-Vasquez once
permitted her to leave early when her daughter became ill. In
this same regard, while I credit Camerina Calderon that she
telephoned to the Hariton facility and reported absences from
work to the former on no less than five occasions, I note that
said absences were occasioned by illness and that the permis-
sion, granted by Paz-Vasquez, was to “get well.” In these cir-
cumstances, the authority of Lopez’ assistants to permit em-
ployees to leave early or to grant permission to employees to be
absent from work appears to be routine, requiring no independ-
ent judgment, and insufficient to confer supervisory status on
these individuals. Azusa Ranch Market, 321 NLRB 811, 812
(1996); Sears Roebuck & Co., 304 NLRB 193, 197 (1991).
Based on the foregoing, I reiterate my view that neither Rosa
Jaramillo nor Maria Paz-Vasquez possesses any of the indicia
of supervisory status required by Section 2(11) of the act.
Hausner Hard-Chrome of Kentucky, Inc., supra; J. C. Brock
Corp., supra.78 Therefore, neither was, at any material time, a
supervisor, acting in the interests of Respondent D&F, within
the meaning of the Act or was able to bind Respondent D&F by
her statements, and I so find.
Notwithstanding the foregoing, counsel for the General
Counsel argues that, by virtue of apparent authority, Jaramillo
and Paz-Vasquez were, at all times material, agents of Respon-
dent D&F within the meaning of Section 2(13) of the Act, with
the latter thereby responsible for their statements. In this re-
gard, in several cases, while concluding that individuals were

78 I have considered the fact that, during the interim between Perez’
departure and Duque’s hiring, Paz-Vasquez and Navijio Vargas appar-
ently were the highest ranking individuals in the packaging department
after Lopez left the Hariton facility each evening. At the outset, the
Board has held that the foregoing is not the type of responsibility nec-
essary to compel a finding of supervisory status. Azusa Ranch Market,
supra. Moreover, assuming Paz-Vasquez and Vargas did exercise real
supervisorial authority during the above period of time, the Board has
held that such sporadic exercise of supervisorial authority is insufficient
to confer supervisory status under Sec. 2(11) of the Act. Hexacomb
Corp., 313 NLRB 983, 984 (1994).
In the absence of evidence that either Jaramillo or Paz-Vasquez pos-
sessed any of the enumerated categories of supervisorial authority in
Sec. 2(11), the primary indicia of such status, there is no reason to
consider the so-called secondary indicia, including employee-
supervisor ratio, the possession of keys, or the like. Hausner Hard-
Chrome of Kentucky, Inc., supra at 2.
not supervisors within the meaning of Section 2(11) of the Act,
the Board has applied common law agency principles in order
to determine whether such individuals were agents of their
employers, within the meaning of Section 2(13) of the Act, in
the course of making particular statements or taking particular
actions. Hausner Hard-Chrome of Kentucky, Inc., supra at 3;
Southern Bag Corp., 315 NLRB 725 (1994); Great American
Products, 312 NLRB 962, 963 (1993). One such principle is
apparent authority, which “results from a manifestation by the
principal to a third party that creates a reasonable basis for the
latter to believe that the principal has authorized the alleged
agent to perform the acts in question.” Hausner Hard-Chrome
of Kentucky, Inc., supra; Southern Bag, supra; Great American
Products, supra. The Board has long held that, under this doc-
trine, the test for determining whether an asserted supervisory
employee is an agent of the employer is whether, under all the
circumstances “the employees would reasonably believe that
the employee in question was reflecting company policy and
speaking and acting for management.” Waterbed World, 286
NLRB 425, 426 (1987) (citations omitted). As stated in Sec-
tion 2(13), when making the agency determination, “the ques-
tion of whether the specific acts performed were actually au-
thorized or subsequently ratified should not be controlling, and,
under Board precedent, an employer may have an employee’s
statements attributed to it if the employee is “held out as a con-
duit for transmitting information [from management] to other
employees.” Hausner Hard-Core of Kentucky, Inc., supra;
Great American Products, supra.
While several individuals testified that Paz-Vasquez was in-
troduced to them as their supervisor, that Lopez often referred
to Paz-Vasquez as the packaging department employees’ su-
pervisor, that, at one time, Paz-Vasquez and Vargas were the
highest ranking individuals in the packaging department, and
that Lopez’ assistants possessed several of the so-called secon-
dary indicia of supervisory authority, these are not, in my view,
controlling factors in determining the existence of apparent
authority to make a particular statement. Rather, the sine qua
non of such authority appears to be the holding out of the puta-
tive supervisor/agent, by the employer, as “being privy to man-
agement decisions or as speaking with management’s voice
about . . . alleged unlawful matters or that employees perceived
[the individual] as having such a role.” Waterbed World, supra
at 427. Thus, in Hausner Hard-Chrome of Kentucky, Inc., su-
pra, while not finding him to be a supervisor, the Board found
an employee to be an agent where employees looked to the
individual to communicate instructions from management and
to implement management policies. Also, in Victor’s Cafe 52,
Inc., 321 NLRB 504 fn. 1 (1996), while not finding supervi-
sorial status, the Board found an employee to be an agent as he
was “the usual conduit for communicating management’s views
and directives to employees, from the time of their hiring
through their daily accomplishment of their tasks.” Further, in
Southern Bag Corp., supra, while finding that an individual was
not a supervisor, the Board concluded that he was an agent as
he held department meetings to discuss subjects including
safety, housekeeping, quality control, and similar production
matters, and, likewise, in Great American Products, supra,
while finding him not to be a supervisor, the Board found an
D&F INDUSTRIES 643
employee to be an agent as employees looked to him for infor-
mation regarding job assignments and production quotas.
These four cases must be contrasted with the situations in Wa-
terbed World, supra at 426–427, in which the Board concluded,
notwithstanding that an individual initialed timecards and was
referred to by management officials as a supervisor, he was not
a statutory supervisor and, as no evidence existed that the re-
spondent utilized the individual to convey its labor relations
decisions, practices, or policies, he also was not an agent, and,
in Zack Co., 278 NLRB 958, 959 (1986), in which, as there
existed no evidence that an individual responsibly directed
work or that he was privy to management’s unlawful acts, the
Board concluded that the individual was neither a statutory
supervisor nor an agent. Likewise, as there is no record evi-
dence that Lopez’ assistants, including Jaramillo and Paz-
Vasquez, participated in management decisions, held employee
meetings during which Respondent D&F policy matters were
discussed, informed employees of decisions affecting their
working conditions or terms and conditions of employment, or
conveyed production-related decisions to the employees, I find
no basis for concluding that the assistants to Lucho Lopez were
held out, by Respondent D&F, as being privy to management
decisions or as speaking with management’s voice or that em-
ployees reasonably could perceive them as acting in such roles.
Therefore, contrary to counsel for the General Counsel, I do not
believe that, at any time material, either Rosa Jaramillo or
Maria Paz-Vasquez acted as Respondent D&F’s agent within
the meaning of Section 2(13) of the Act so as to bind their em-
ployer through their statements to employees. Waterbed
World, supra. Accordingly, I shall recommend dismissal of the
allegations of paragraphs 8 and 10 of the consolidated com-
plaint, which paragraphs pertain to alleged violations of Section
8(a)(1) of the Act committed by Paz-Vasquez and by Jaramillo.
I turn next to the late June or early July 1998 speech by
Howard Simon to the second-shift employees at the Hariton
facility and to the consolidated complaint allegations that Re-
spondent D&F’s chief operating officer included several state-
ments, violative of Section 8(a)(1) of the Act, in his remarks
and note that any conclusions as to what Simon said are de-
pendent on an analysis of the credibility of the several wit-
nesses. In this regard, by her demeanor, the most impressive
and trustworthy witness, and on whose testimony I place the
greatest reliance, was current employee, Camerina Calderon.
In contrast, neither the testimonial demeanor of Simon nor that
of Carmen Reyes was that of an entirely candid witness, and
each appeared to be testifying in a manner calculated to bolster
his or her party’s legal position. Finally, while the other em-
ployee witnesses generally appeared to be testifying truthfully,
some assertions were uncorroborated, and I shall rely on only
those which were corroborated by Calderon or by other em-
ployees. Accordingly, relying on Calderon and Claudia Mayne,
I find that, during his speech, Simon warned the employees that
it was “not good” for them to give permission to “strangers” to
represent them “because . . . by no way, no means was a union
going to be able to get in. And also that Carmen’s office was
antiunion and . . . [would] not . . . let the Union get [in] ei-
ther.”79 I believe that Simon’s warning was susceptible of but
one interpretation by the listening employees—that Respondent
D&F would refuse to deal with a third party, acting on behalf of
the employees, and that, therefore, their efforts to obtain repre-
sentation by the Union would be doomed to failure. The Board
has long held that an employer’s statements, which are intended
to convey to employees the futility of support for a labor or-
ganization are coercive and violative of Section 8(a)(1) of the
Act. Accordingly, Simon’s warning was clearly unlawful.
Wellstream Corp., 313 NLRB 698, 706 (1994); Bestway Truck-
ing, 310 NLRB 651, 671 (1993); Marcar Industrial Uniform
Co., 306 NLRB 27, 28 (1992). Next, Abeline Garcia-Sosa and
Carolina Orozco, each of whom I credit, corroborated each
other that Simon warned the employees that either “whoever
did not like working in the company, the doors were open for
them to go and work somewhere else because if the Union was
going to come in there” or “if we did not like working there . . .
the doors were wide open and we could go because there were
a lot of applications being filled out right behind us.” The
Board has held that an employer’s suggestion to its employees,
who are union adherents, that they should quit or seek employ-
ment elsewhere if dissatisfied with their terms and conditions of
employment constitute “indirect” threats of discharge and are
violative of Section 8(a)(1) of the Act. Great Lakes Window,
Inc., 319 NLRB 615, 620 (1995); New Life Bakery, 301 NLRB
421, 427 (1991). Likewise, vaguely worded comments to dis-
satisfied union supporters, such as they should be “out in the
open market” or they should “move on elsewhere,” have been
held to be implied threats of discharge, violative of Section
8(a)(1) of the Act. Edy’s Grand Ice Cream, Inc., 323 NLRB
683, 697 (1997); Harpercollins Publishers, Inc., 317 NLRB
168, 180 (1995); Western Health Clinics, 305 NLRB 400, 407
(1991). In my view, Simon’s above-quoted comment was in
the identical vein and equally as coercive. Therefore, it, too,
was violative of Section 8(a)(1) of the Act, and I so find. Also,
relying on Orozco and Paula Pineda Camargo, who corrobo-
rated each other, I find that Simon warned the listening em-
ployees that Respondent D&F would “close the company” in
order to prove he was not afraid of the Union or “close the fac-
tory” in order not to deal with “strangers.” Of course, threats,
such as Simon’s, are “naturally” coercive and deter employee
support for a labor organization and are, therefore, arrantly
violative of Section 8(a)(1) of the Act. Diversified Bank Instal-
lations, 324 NLEB 457, 471 (1997); Portsmouth Ambulance
Service, 323 NLRB 311, 319 (1997).80
Further, with regard to Simon’s speech, I credit Calderon
that, in response to an employee’s hypothetical question as to
what would happen if all of the Respondents’ employees exe-
cuted authorization cards for the Union, Simon responded “that
if that were the case . . . we could go on strike but that we were
all going to be dismissed. In this regard, Simon himself admit-

79 Mayne similarly recalled Simon saying, “[I]f the company did not
want the Union to get in there, they were not going to.”
80 I distinguish this unlawful threat from Simon’s factual statement,
corroborated by Calderon, that Respondent D&F was planning to move
the plant to a different location. I believe Simon uttered both state-
ments and so find.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644
ted telling the employees that, in the advent of a strike, Re-
spondent had the choice of continuing operations or hiring re-
placements for the strikers. While I believe that it is entirely
plausible that Simon spoke in terms of strike replacements, I
also believe Calderon that his words were interpreted in the
above-quoted manner by either Lucho Lopez or Carmen Reyes,
both of whom, Respondents admitted, are their supervisors and
agents. Accordingly, as interpreted, Simon’s threat, that strik-
ing employees would be discharged, was a blatantly unlawful
threat of discharge, violative of Section 8(a)(1) of the Act, and I
so find. Westpac Electric, 321 NLRB 1322, 1363 (1996);
Caterair International, 309 NLRB 869, 879 (1992). Assuming
arguendo, that Calderon misunderstood Simon’s words and, as
interpreted, he, in fact, did speak about hiring replacements for
strikers, I note that he failed to distinguish between economic
and unfair labor practice strikers and between permanent and
temporary replacements. Moreover, in context, Simon spoke
about the consequences of a strike immediately after he impli-
edly threatened the discharge of union supporters. In these
circumstances, unsophisticated employees were placed in the
position of having to comprehend the nuances of an unfamiliar
concept and may well have construed Simon’s incomplete
statement of the law, regarding strikes and the rights of strikers,
as threatening further reprisals for their having supported the
Union. Accordingly, Simon’s admitted statement to the em-
ployees was coercive, and Respondent D&F acted in violation
of Section 8(a)(1) of the Act. Rankin & Rankin, Inc., 330
NLRB 1026 fn. 5 (2000); Eagle Comtronics, 263 NLRB 515,
516 (1982).
Also, with regard to Howard Simon’s speech, I credit
Calderon that an employee asked a question, regarding raises,
and Simon replied, saying he would “review” the matter and
“come up with a good solution for us.” On this point, she was
corroborated by Garcia-Sosa and Carolina Orozco. The former
recalled Simon requesting that employees refrain from execut-
ing authorization cards for the Union as he could solve their
problems as easily as the Union could and Lucho Lopez saying
that Respondent D&F was going to hire an English teacher for
the employees. Similarly, Orozco recalled Simon mentioning
“that he was going to look into the personnel files of each of us
to see what he could do for us to advance.” On this same point,
Simon admitted saying that the company did not want a “third
party” coming between itself and the employees, inviting em-
ployees to go to their supervisors or to Carmen Reyes with any
“concerns,” and answering a question from an employee, who
desired to earn a higher wage, stating “we have plans to offer
English-as-a-second-language courses to our employees.” As
stated by the Board, in Valley Community Services, 314 NLRB
903, 904 (1994), “It is well established that when an employer,
who has not previously had a practice of soliciting employee
grievances or complaints, suddenly embarks on such a course
during an organizational campaign, the Board may find that the
employer is implicitly promising to correct those inequities
discovered as a result of the inquiries, thereby leading employ-
ees to believe that the combined program of inquiry and correc-
tion will make collective action unnecessary.” Simon admitted
inviting Respondents’ employees to go to their supervisors in
order to express their “concerns,” and I note that neither Re-
spondent D&F nor Respondent Olsten offered any evidence of
a past practice of soliciting employees’ problems or questions.
Capitol EMI Music, supra at 1007. Accordingly, in agreement
with counsel for the General Counsel, given the context of
Simon’s comment, I find that Simon, in violation of Section
8(a)(1) of the Act, solicited grievances from the listening em-
ployees. Torbitt & Castleman, Inc., 320 NLRB 907, 909
(1996). Finally, while the unlawful solicitation of grievances is
usually accompanied by the implied promise to correct them,
the above credited testimony establishes that Simon, in fact,
explicitly promised to remedy the concerns of Respondents’
employees if they refrained from executing authorization cards
in favor of the Union. Thus, he promised to solve the employ-
ees’ problems, including higher wages, greater benefits, and
swifter offers of employment by Respondent D&F, to review
the subject of raises and come up with a favorable “solution”
for the employees, and to review the employees’ personnel files
in order to help them advance with Respondent D&F. Further,
Simon admitted informing the employees of the implementa-
tion of a new English-as-a-second-language program. In these
circumstances, the conclusion is inevitable that, during his
speech, Simon promised specific and unspecified benefits to the
second-shift employees in order to discourage them from sup-
porting the Union. Such conduct, during a Union’s organizing
campaign, is, of course, patently violative of Section 8(a)(1) of
the Act. Valley Community Services, supra at 904; Waste Man-
agement of Utah, 310 NLRB 883, 888 (1993).
The next issue concerns the layoffs of Respondent Olsten
temporary employees Claudia Mayne, Abigail Reyes, Carolina
Orozco, and Salud Soria from Respondent D&F’s Hariton facil-
ity on July 7, the layoffs of Respondent Olsten temporary em-
ployees Maria Jaramillo and Silvia Martinez on or about Sep-
tember 8 from Respondent D&F’s Hariton facility, the layoff of
Respondent Olsten temporary employee Jose Luis Rivera on
August 24 from Respondent D &n F’s Gene Autry facility, and
the allegations of the consolidated complaint that Respondents
violated Section 8(a)(1) and (3) of the Act in doing so. With
regard to the alleged unlawful layoffs from Respondent D&F’s
Hariton facility, disavowing any contention that Respondents
engaged in mass layoffs in order to disguise the layoffs of the
alleged discriminatees, counsel for the General Counsel ini-
tially defined the General Counsel’s theory, underlying the
unlawful layoff allegations, in the following terms—that Reyes,
Soria, Mayne, Orozco, Jaramillo, and Martinez “were hand
picked for layoff . . . because of [their union activity].” Then,
only after counsel for the Charging Party goaded her into doing
so, counsel for the General Counsel somewhat vaguely ad-
vanced a possible alternate theory, which, in essence, questions
the validity of Respondent D&F’s defense, relating to its July
and September layoffs as a whole.81 However, in her post-
hearing brief, counsel concentrated on the selection process and

81 Counsel for the General Counsel hypothesized the following:
“There was union activity knowledge animus and that simply the em-
ployer D&F failed to show why these employees were chosen for lay-
off. . . . And it failed to show . . . a reason for their layoffs other than
the fact of that there was this reported economic downturn. Addition-
ally, after these employees were laid off, the employer continued in
hiring other employees [both permanent and temporary].”
D&F INDUSTRIES 645
seemingly abandoned this alternate theory, failing to explicate
exactly what said putative theory entailed or to advance any
argument in support of it. But, picking up the cudgel, in his
posthearing brief, counsel for the Charging Party announced
that the Charging Party “will now argue the General Counsel’s
second theory, leaving the first to General Counsel.”82 and as-
serted that the said alternate theory, which concerns the validity
of the entire June and September layoffs, is that which was
enunciated by the Board in Electro-Voice, Inc., 320 NLRB
1094 (1996), and Rainbow News 12, 316 NLRB 52 (1995), and
similar decisions. According to said theory, the Board will find
violations of Section 8(a)(1) and (3) of the Act when employers
take adverse actions against groups of employees, regardless of
their individual sentiments towards union representation, in
order to punish the employees as a group “to discourage union
activity or in retaliation for the protected activity of some.”
Rainbow News 12, supra at 67; Mini-Togs, Inc., 304 NLRB
644, 648 (1991).
Assuming that said theory was, indeed, counsel for the Gen-
eral Counsel’s alternate theory, based on the entire record, I
believe that an unlawful mass layoff theory is not viable in the
context of the instant consolidated complaint, and that, in any
event, it had been previously rejected by the General Counsel
and, later, abandoned by counsel. Thus, in the cited cases and
similar ones, all of the affected employees initially were alleged
as discriminatees, by the General Counsel, and subsequently
were found, by the Board, to have been unlawfully discrimi-
nated against and entitled to the standard remedies for a viola-
tion of Section 8(a)(1) and (3) of the Act. This was true
whether all or just some of the individuals had, in fact, engaged
in activities in support of the labor organization involved. Of
course, the consolidated complaint alleges just six individuals
as having been unlawfully laid off by Respondents from the
Hariton facility. However, in the underlying original and
amended unfair labor practice charges, besides the alleged dis-
criminatees, eight of the employees, who were among those
laid off in June or September 1998 from the Hariton facility,
are alleged as having been laid off in retaliation for their sup-
port of the Union.83 Yet, the General Counsel failed to allege
any of them as an alleged discriminatee in the consolidated
complaint. Clearly, the Regional Director for Region 21 must
have concluded that no prima facie violations of Section 8(a)(1)
and (3) of the Act could be established as to these eight em-
ployees and, in so concluding, presumably, also must have
considered and rejected the unlawful mass discharge theory of
Electro-Voice, Inc., supra, and Rainbow News 12, supra. The
latter must be true as, notwithstanding counsel for the General
Counsel’s supposed support for an alternate theory, underlying

82 I don’t know whether this means that counsel for the General
Counsel and counsel for the Charging Party discussed the matter and
decided to divide their arguments or that, as counsel for the General
Counsel was not serious in her contention or did not really mean to
argue an alternate theory or did not fully contemplate what this alter-
nate theory would entail, counsel for the Charging Party is “carrying
the ball” for the General Counsel.
83 These are Rafael Goxion, Patricia Soria, Juana Flores, Daniel
Saravia, Cezar Jimenez, Evangelina Medina, Julio Montes, and Norma
Figueroa.
the 8(a)(1) and (3) violation allegations pertaining to the layoffs
from the Hariton facility, she failed to seek to amend the con-
solidated complaint to allege the eight individuals, named in the
unfair labor practice charges, as discriminatees. This is of criti-
cal import, for absent amendment, unlike in the above deci-
sions, the limited 8(a)(1) and (3) allegations of the consolidated
complaint do not support an alternate, mass discharge theory.
Finally, given her silence in her post-hearing brief, notwith-
standing the comment of counsel for the Charging Party, I be-
lieve counsel for the General Counsel abandoned any reliance
on an alternate theory for the alleged unlawful layoffs.
Accordingly, I shall only consider the original theory, under-
lying the instant allegations of discriminatory layoffs from the
Hariton facility and the one from the Gene Autry facility, and
that which was initially argued by counsel for the General
Counsel during the trial and, later, in her posthearing brief. In
this regard, there is no dispute as to the applicable legal stan-
dard. Thus, Board law in 8(a)(1) and (3) discharge and layoff
cases is well settled. As recently explained by the Board in
Naomi Knitting Plant, 328 NLRB 1279 (1999), in Wright Line,
251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989, (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983), to set
forth a violation under Section 8(a)(3) of the Act, the General
Counsel is required to show by a preponderance of the evidence
that antiunion animus was a motivating factor in the employer’s
conduct. Once this showing has been made, the burden shifts
to the employer to demonstrate that the same action would have
taken place in the absence of or notwithstanding the employee’s
union activities. To sustain his initial burden, that of persuad-
ing the Board that the employer acted out of antiunion animus,
the General Counsel must show (1) that the employee was en-
gaged in union activities; (2) that the employer was aware of or
suspected the employee’s involvement in union activities; and
(3) that the employee’s union activities were a substantial or
motivating factor for the employer’s actions. Motive may be
demonstrated by circumstantial evidence as well as by direct
evidence and is a factual issue. FPC Moldings, Inc., 314
NLRB 1169 (1994), enfg. 64 F.3d 935, 942 (4th Cir. 1995).
Four points are relevant to the foregoing analytical approach.
First, in concluding that the General Counsel has established a
prima facie showing of unlawful animus, the Board will not
“quantitatively analyze the effect of the unlawful motive. The
existence of such is sufficient to make a discharge a violation of
the Act.” Wright Line, supra at 1089 at fn. 4. Second, once the
burden has shifted to the employer, the crucial inquiry is not
whether the employer could have engaged in its alleged unlaw-
ful acts and conduct but, rather, whether the employer would
have done so in the absence of the alleged discriminatee’s sup-
port for the Union. Structural Composites Industries, 304
NLRB 729 (1991); Filene’s Basement Store, 299 NLRB 183
(1990). Third, pretextual discharge cases should be viewed as
those in which “the defense of business justification is wholly
without merit” (Wright Line, supra at 1089 fn. 5), and the “bur-
den shifting” analysis of Wright Line need not be utilized.
Arthur Young & Co., 291 NLRB 39 (1988). Finally, as to the
latter point, “it is . . . well settled . . . that when a respondent’s
stated motives for its actions are found to be false, the circum-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646
stances warrant the inference that the true motive is an unlawful
one that the respondent desires to conceal.” Flour Daniel, Inc.,
304 NLRB 970 (1991); Shattuck Den Mining Corp. v. NLRB,
362 F.2d 466 (9th Cir. 1966).
Succinctly put, based on the record evidence, I do not be-
lieve that counsel for the General Counsel satisfied her initial
burden of proof and established that, in causing Respondent
Olsten to lay off Mayne, Orozco, Soria, and Reyes, Respondent
D&F was motivated by antiunion animus. Thus, while there is
ample evidence that each of the above-named alleged discrimi-
natees engaged in some activity in support of the Union, includ-
ing signing authorization cards and speaking to coworkers
about the Union, there is no record evidence, legally probative
of Respondents’ knowledge or suspicions of the four laid-off
employees’ support for the Union. Specifically, while Howard
Simon and Lucho Lopez obviously were aware of the existence
of the organizing campaign and while I credit the trustworthy
testimony of Camerina Calderon, given my findings that, at no
time material, Paz-Vasquez has been either a supervisor, within
the meaning of Section 2(11) of the Act, or an agent, within the
meaning of Section 2(13) of the Act, on behalf of Respondent
D&F, I shall not attribute to Respondent D&F any of Paz-
Vasquez’ comments to Luz Figueroa, overheard by Calderon,
concerning her asserted firing of Abigail Reyes and Carolina
Orozco for signing union cards based on orders from “up-
stairs.” Moreover, absent a scintilla of record evidence estab-
lishing that Paz-Vasquez was involved in or privy to the deci-
sion-making regarding the July 1998 layoffs, her comments to
Figueroa must be taken as mere statements of personal opinion,
bravado, and self-aggrandizement and are not to be afforded
any weight. Zack Co., supra. Other than the foregoing, there
exists no other record evidence regarding Respondent D&F’s
knowledge or suspicion of the above employees’ union activi-
ties or sentiments.84 In the foregoing circumstances, notwith-
standing the existence of general antiunion animus, as evi-
denced by the unlawful threats and comments of Howard
Simon, I conclude that the General Counsel has failed its initial
burden of establishing that the Respondents were unlawfully
motivated in laying off Soria, Mayne, Reyes, and Orozco and
shall recommend that the allegations of paragraph 7 of the con-
solidated complaint, which pertain to the said employees, be
dismissed.
Likewise, I do not believe that counsel for the General Coun-
sel has met its initial burden of proof of establishing that Re-
spondent D&F was motivated by antiunion considerations in
causing Respondent Olsten to lay off Maria Jaramillo. Thus,
while the uncontroverted record evidence is that, by executing
an authorization card, the alleged discriminatee engaged in
activities in support of the Union, the only record evidence,
pertaining to Respondent D&F’s knowledge or suspicions of
her sympathies or activities in support of the Union, is found in

84 I recognize that under a “mass discharge” theory, specific evi-
dence of knowledge as to each alleged discriminatee’s union activities
is not required. However, as I indicated above, I do not believe that the
instant amended complaint is broad enough on which to base such a
theory, and nor do I believe that such was ever the General Counsel’s
theory underlying the Hariton plant layoffs.
a conversation between Rosa Jaramillo and her, during which,
after interrogating her as to whether she had joined the Union
and informing her that another employee said she had signed a
union authorization card, Rosa informed Maria that “Lucho
Lopez already knows that you joined up with the Union and he
knows everything. He even knows that you signed. . . . a card.”
While Rosa Jaramillo denied the conversation, Maria Jaramillo
was a far more impressive witness than her sister-in-law. How-
ever, notwithstanding that I credit Maria Jaramillo’s version of
the conversation, given my prior findings that, at no time mate-
rial, has Rosa Jaramillo acted as a supervisor, within the mean-
ing of Section 2(11) of the Act, or an agent, within the meaning
of Section 2(13) of the Act, on behalf of Respondent D&F, the
latter was not responsible for, or bound by, Rosa Jaramillo’s
remarks to her sister-in-law. Further, as with the statements of
Maria Paz-Vasquez, absent any record evidence that Rosa
Jaramillo was involved in, or privy to, Respondent D&F’s lay-
off decisionmaking process, I must conclude that she engaged
in utter hyperbole and fabrication while speaking to her sister-
in-law and give no weight to her words as establishing Respon-
dent D&F’s knowledge or suspicion of Maria Jaramillo’s sup-
port for the Union. Zack Co., supra. As above, notwithstand-
ing Respondent D&F’s general awareness of the Union’s orga-
nizing campaign, counsel for the General Counsel adduced no
other evidence regarding Respondent D&F’s knowledge or
suspicions of Maria Jaramillo’s union sentiments or activities.
Therefore, notwithstanding the record evidence of general anti-
union animus, I find that the General Counsel has failed to
sustain its initial burden of proof—establishing that Maria
Jaramillo’s union activities were a motivating factor, leading to
her layoff by the Respondents, and I shall recommend that the
allegations of paragraph 7 of the consolidated complaint, which
pertain to Jaramillo’s layoff, be dismissed.
With regard to whether Respondent D&F was unlawfully
motivated in causing Respondent Olsten to lay off alleged dis-
criminatee Silvia Martinez, I believe that counsel for the Gen-
eral Counsel has met her initial burden of proof as to the layoff.
Thus, I credit Martinez, who appeared to be an honest witness,
that she signed an authorization card for the Union on August 4
and that she requested and received, from a union agent, a let-
ter, naming her as a union activist. Further, crediting the
straightforward Martinez over Lucho Lopez, who, in contrast,
appeared to be significantly less candid, I find that, later in the
day, Martinez confronted Lopez and handed him an envelope
which contained the letter; that he asked what was in the enve-
lope; that she “told him that [she] wanted to be known as a
member of the Union because I . . . want the Union in here
because we don’t have any protection of any source and we
don’t have help from nobody;” that he asked if she was doing
this “out of vengeance;” and that, after she denied his impudent
and imprudent retort, Lopez warned “do you think that paper is
going to help you in any way when they fire you . . . they are
going to dismiss you for having dealings with the Union.”
There can be no question, and I find, that the foregoing conver-
sation conclusively establishes Respondent’s knowledge of
Martinez’ support for the Union. What is more, the individual,
who gained such knowledge, was the very same individual
charged by Respondent D&F with selecting employees for
D&F INDUSTRIES 647
layoff. Moreover, Lopez’ latter comment was an incontroverti-
ble warning to Martinez that her support for the Union would
lead to her eventual dismissal by Respondents, and, as such,
constituted a blatant threat of discharge to an employee for
having engaged in union activities in violation of Section
8(a)(1) of the Act, and I so find. Delta Mechanical, Inc., 323
NLRB 76, 78 (1997); Dockendorf Electric, 320 NLRB 4, 11
(1995). Given Lopez’ threat of discharge for engaging in ac-
tivities in support of the Union and the similar direct and im-
plied threats of discharge, which I found were uttered by How-
ard Simon, the record is replete with evidence of Respondent
D&F’s unlawful animus towards supporters of the Union. Fur-
thermore, Respondent D&F’s unlawful animus is established
by the sham nature of its defense regarding Martinez’ selection
for layoff. Initially, in this regard, I note that the individual,
who selected Martinez for layoff, Lucho Lopez, was inconsis-
tent as to the reason for her selection. Thus, when called as a
witness by counsel for the General Counsel and, later, when
testifying on behalf of Respondent D&F, Lopez mentioned only
a lack of work as the reason for Martinez’ layoff. Then, under
cross-examination by counsel for the General Counsel, Lopez
belatedly and inconsistently raised the alleged discriminatee’s
attendance problems as a factor in his selection of her for lay-
off. Further belying the frank nature of Lopez’ latter defense
was his assertion that, along with her numerous written absence
requests, he reported Martinez’ attendance problems to Carmen
Reyes for discipline. However, neither counsel for Respondent
D&F nor counsel for Respondent Olsten offered any documents
supporting Lopez’ testimony and Carmen Reyes failed to cor-
roborate any aspect of his assertions. In these circumstances, I
do not credit any aspect of his testimony regarding the selection
of Martinez for layoff. Accordingly, the conclusion is war-
ranted that Respondent D&F caused Respondent Olsten to lay
off Silvia Martinez because of her support for the Union in
violation of Section 8(a)(1) and (3) of the Act. Moreover, I
believe that the General Counsel has established that, as the
actual employer of the alleged discriminatee, Respondent Ols-
ten was directly aware of the unlawful nature of Martinez’ lay-
off. In this regard, Martinez was uncontroverted, and I find,
that, subsequent to her layoff by Respondent Olsten, Carmen
Reyes told her that the reason for her layoff was that she
(Reyes) “had received orders from higher up that I had done
something wrong against the company.” The record warrants
the inferences, which I draw, that the “something wrong” was
Martinez’ support for the Union and that Reyes knew it.
The remaining alleged discriminatee is Jose Luis Rivera,
who, based on a demand from Respondent D&F’s manufactur-
ing manager to Carmen Reyes, was laid off, by Respondent
Olsten, from Respondent D&F’s Gene Autry facility on August
24. Utilizing the aforementioned Wright Line, supra, princi-
ples, I believe that counsel for the General Counsel has estab-
lished a prima facie case that Rivera’s support for the Union
was the reason for his layoff. Thus, Rivera was uncontroverted,
and I find, that, at all times while working at the Gene Autry
facility, he was an agent of the Union and engaged in organiz-
ing activities. In this regard, he spoke about the Union with
and solicited signed authorization cards from coworkers in the
plant’s parking lot and, during working hours, spoke to em-
ployees in hallways and in the mop cleaning room about the
Union. Also, and of utmost importance, Rivera attended How-
ard Simon’s speech to the second-shift employees at the Gene
Autry facility, during which Carmen Reyes was present, and
was the only employee, who mentioned the Union in a question
to Simon. In my view, Rivera’s question caused Respondent
D&F to suspect his support for the Union, and the documentary
evidence supports my conclusion. Thus, General Counsel’s
Exhibit 2, a computer-generated work history, which Respon-
dent Olsten maintained on Rivera, bears the notation “becuz of
attitude during meeting,” as the reason for the end of his as-
signment to Respondent D&F, and Carmen Reyes admitted that
the information “most likely” came from her. Without any
contrary explanation in the record, the conclusions are war-
ranted that the meeting, to which the document refers, was the
employee meeting during which Howard Simon spoke to the
second-shift employees at the Gene Autry plant and Rivera
asked his question and that the word, “attitude,” referred to his
suspected support for the Union. With regard to motive, the
record is replete with evidence of Respondent D&F’s unlawful
animus toward employees, who supported the Union, and, as
set forth above, General Counsel’s Exhibit 2 clearly establishes
Rivera’s “attitude” as the precipitating reason for his layoff.
That Respondent D&F was motivated to rid itself of Rivera
because of his suspected support for the Union is also seen by
the meretricious nature of Respondents’ defenses to the con-
solidated complaint allegations pertaining to Rivera’s layoff.
Thus, Respondent D&F failed to offer any evidence as to its
reason for demanding Rivera’s layoff, and, while Carmen
Reyes maintained that her instructions for laying off Rivera
came from Respondent D&F’s manufacturing manager Neva-
rez and that such was based on Respondent D&F’s “downsiz-
ing” at the Gene Autry facility, neither Respondent D&F nor
Respondent Olsten called Nevarez as a corroborating witness,
and Reyes contradicted herself, stating that the layoff resulted
from a “lack of production.” Finally, Reyes conceded that the
notation on General Counsel’s Exhibit 2 “appears” to be the
actual reason for Rivera’s layoff. Based on the foregoing, I
find that Respondent D&F caused Respondent Olsten to lay off
Jose Luis Rivera because of his suspected support for the Union
in violation of Section 8(a)(1) and (3) of the Act. Finally, as
with Martinez, in the above circumstances, I believe that coun-
sel for the General Counsel has established that, in complying
with Respondent D&F’s demand that it lay off Rivera, Carmen
Reyes, on behalf of Respondent Olsten, clearly was aware of
Respondent D&F’s underlying unlawful animus.
As a final issue, I must decide whether, as a joint employer,
Respondent Olsten is jointly liable for Respondent D&F’s
unlawful acts and conduct. At the outset, in ascribing vicarious
liability for the nonacting company in a joint-employer rela-
tionship, in which one employer supplies employees to work in
the business of another, the seminal decision of the Board is
Capitol EMI Music, 311 NLRB 997 (1993). As I have decided
in the instant fact context, in Capitol EMI Music, the Board
concluded that two employers, a company, which distributes
recording products to retail establishments and intracompany
facilities, and a company, which refers temporary employees,
who are its employees, to clients, constituted joint employers of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648
said temporary employees and that the distribution company
was unlawfully motivated in making a request to the employ-
ment agency to remove an employee. Noting that there are two
types of joint employer relationships in such cases (the “tradi-
tional” type where each employer has a representative at the
work site and share supervision of the employees and the rela-
tionship in which a company merely supplies workers to the co-
employer and otherwise does not participate in their oversight),
the Board determined that, in joint employer relationships such
as, both employers are liable for a termination “only when the
record permits the inference (1) that the nonacting joint em-
ployer knew or should have known that the other employer
acted against the employees for unlawful reasons and (2) that
the former has acquiesced in the unlawful action by failing to
protest it or to exercise any contractual right it might possess to
resist it.” As to burdens of proof, the Board concluded that the
General Counsel sustains its initial burden by establishing the
joint employer relationship and then showing that one has acted
with unlawful animus. The burden then shifts to the non-acting
party to show “that it neither knew, nor should have known, of
the reason for the other employer’s action or that, if it knew, it
took all measures within its power to resist the unlawful ac-
tion.” Id. at 1000.
The record evidence compels findings that, as a joint em-
ployer, Respondent Olsten was aware of almost all of the
unlawful acts and conduct committed by Respondent D&F,
which I have found above; that, with knowledge of Respondent
D&F’s unlawful animus, Respondent Olsten obediently fol-
lowed the former’s instructions to lay off employees Martinez
and Rivera; that, in the circumstances, Respondent D&F’s pat-
ent antiunion animus may be imputed to Respondent Olsten;
and that Respondent Olsten is thereby vicariously liable for
Respondent D&F’s above unfair labor practices. In this regard,
not only did Respondent Olsten’s site manager, Carmen Reyes,
maintain a daily presence at Respondent D&F’s Hariton and
Gene Autry facilities but also she actively participated in the
supervision of Respondent Olsten’s temporary employees, who
were assigned to work at the two plants. Further, Reyes admit-
tedly was present during Howard Simon’s speech to the sec-
ond-shift employees at the Hariton facility and assisted in the
translation of his remarks; therefore, I believe she clearly was
aware of what Simon said and understood the substance of said
remarks, including his unlawful threats and other coercive
statements.85 Moreover, I reiterate my belief that Reyes’ com-
ment to Silvia Martinez, that she had done “something wrong,”
which resulted in her layoff from Respondent D&F’s Hariton
plant, was an oblique reference to the alleged discriminatee’s
support for the Union. Likewise, I reiterate my conclusion,
that, as Reyes conceded that she was most likely the source for
the comment, “becuz of attitude during meeting,” which ap-
pears on Respondent Olsten’s employment history for Jose Luis
Rivera, and that such “appears” to be the reason for the latter’s
layoff from Respondent D&F’s Gene Autry facility, said refer-
ence refers to the Union-related question, which Rivera asked
Howard Simon and which she heard. In the above circum-
stances, I am convinced that, acting on behalf of Respondent

85 To believe otherwise is nothing less than specious.
Olsten, Carmen Reyes was acutely aware of Respondent D&F’s
unlawful animus in demanding the layoffs of Martinez from its
Hariton plant and Rivera from its Gene Autry facility and that,
as there exists evidence that she was a complicit participant and
no record evidence that she protested Respondent D&F’s ac-
tions, Reyes, on behalf of Respondent Olsten, acquiesced in the
former’s perfidy. Accordingly, given their joint employer rela-
tionship, I believe that Respondent Olsten must be found vi-
cariously liable for Respondent D&F’s discriminatory acts and
conduct, and I so find.
CONCLUSIONS OF LAW
1. Respondent D&F is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Olsten is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
3. At all times material, Respondent D&F and Respondent
Olsten were joint employers of the temporary employees of
Respondent Olsten working at Respondent D&F’s Hariton and
Gene Autry facilities.
4. By informing employees that Respondent D&F would
never deal with a third party, thereby warning employees that
their support for the Union would be futile, Respondents en-
gaged in acts and conduct violative of Section 8(a)(1) of the
Act.
5. By informing employees that the doors were open for
them to work somewhere else if the Union was coming in,
thereby impliedly threatening employees with discharge be-
cause of their support for the Union, Respondents engaged in
conduct violative of Section 8(a)(1) of the Act.
6. By threatening employees with discharge if they engaged
in a strike against Respondent D&F, Respondents engaged in
conduct violative of Section 8(a)(1) of the Act.
7. Without distinguishing between economic and unfair labor
practice strikers and between permanent and temporary re-
placements, by informing employees that they would be re-
placed if they engaged in a strike, Respondents engaged in acts
and conduct violative of Section 8(a)(1) of the Act.
8. By soliciting grievances from employees in order to in-
duce them to cease supporting the Union, Respondents engaged
in acts and conduct violative of Section 8(a)(1) of the Act.
9. By promising benefits to employees in order to induce
them to cease supporting the Union, Respondents engaged in
acts and conduct violative of Section 8(a)(1) of the Act.
10. By threatening employees with plant closure because of
their support for the Union, Respondents engaged in acts and
conduct violative of Section 8(a)(1) of the Act.
11. By threatening employees with discharge because they
engaged in activities in support of the Union, Respondents
engaged in acts and conduct violative of Section 8(a)(1) of the
Act.
12. By laying off employees Silvia Martinez and Jose Luis
Rivera because of their support for the Union, Respondents
engaged in acts and conduct violative of Section 8(a)(1) and (3)
of the Act.
13. The aforementioned unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
D&F INDUSTRIES 649
14. Unless set forth above, Respondents engaged in no other
unfair labor practices.
REMEDY
I have found that Respondents engaged in serious unfair la-
bor practices within the meaning of Section 8(a)(1) and (3) of
the Act. Therefore, I shall recommend that both be ordered to
cease and desist therefrom and to take certain affirmative ac-
tions, which are designed to effectuate the policies of the Act.
Accordingly, having found that Respondents unlawfully laid
off temporary employees Martinez and Rivera, I shall recom-
mend that Respondent D&F be ordered to reinstate them to
their former positions of employment or, if the positions no
longer exist, to substantially equivalent positions without
prejudice to their seniority and other rights and privileges pre-
viously enjoyed86 and that Respondents make each whole for

86 Technically, Martinez was employed by Respondent Olsten at Re-
spondent D&F’s packaging facility and Rivera was employed by Re-
spondent Olsten and Respondent D&F’s Gene Autry facility. How-
ever, the record evidence is that Respondent Olsten has lost its contract
to supply temporary employees to work for Respondent D&F. There-
any loss of earnings he or she may have suffered by reason of
the discrimination against him or her. Backpay shall be com-
puted in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest, as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). I also shall recom-
mend that Respondent D&F and Respondent Olsten be ordered
to remove from their files any and all references to the layoffs
of Martinez and Rivera and to notify each, in writing, that this
has been done and that evidence of the discriminatory conduct
will not be used as a basis for any future actions against either
of them. Finally, I shall recommend that Respondent D&F and
Respondent Olsten be ordered to post separate notices, in Span-
ish and English, detailing their promises.
[Recommended Order omitted from publication.]

fore, ordering Respondent Olsten to reinstate the two employees will be
a useless endeavor if the purpose of reinstatement is to put each in his
or her former position. Accordingly, I have placed the onus on Re-
spondent D&F to do so in any manner necessary in order to effectuate
reinstatement. This is entirely proper as the impetus for the layoffs of
Martinez and Rivera came from Respondent D&F.