Latino Express, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 2012

358 N.L.R.B. 823 (N.L.R.B. 2012)

LATINO EXPRESS, INC. 823

358 NLRB No. 94
Latino Express, Inc. and Carol Garcia and Pedro Sal-
gado and International Brotherhood of Team-
sters, Local 777.
1
Cases 13–CA–046528, 13–CA–
046529, and 13–CA–046634
July 31, 2012
DECISION AND ORDER AND NOTICE AND
INVITATION TO FILE BRIEFS
BY MEMBERS HAYES, GRIFFIN, AND BLOCK
On July 12, 2011, Administrative Law Judge Michael
A. Rosas issued the attached decision. The Respondent,
Latino Express, Inc., filed exceptions and a supporting
brief, and the Acting General Counsel filed an answering
brief. The Acting General Counsel filed cross-
exceptions and a supporting brief, the Respondent filed
an answering brief, and the Acting General Counsel filed
a reply brief.2
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,3 findings,4 and conclusions as
modified below and to adopt the recommended Order as
modified and set forth in full below.5
We agree with the judge that the Respondent violated
Section 8(a)(1) of the National Labor Relations Act by:
prohibiting employees from discussing their terms and

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties addressed in this decision.
3 The Acting General Counsel has excepted to the judge’s denial of
his motion to amend the complaint to allege that the Respondent unlaw-
fully issued subpoenas to employees seeking union-related pamphlets,
letters, emails, and other documents in their possession. We find that
the judge did not abuse his discretion in denying the motion. Member
Block finds merit in the Acting General Counsel’s exception and would
sever and remand this allegation to the judge for further proceedings.
4 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
5 We have amended the judge’s conclusions of law consistent with
our findings herein. We shall modify the judge’s recommended Order
to conform to our findings and to the Board’s standard remedial lan-
guage, and we shall substitute a new notice to conform to the Order as
modified. We shall modify the judge’s recommended Order in accord-
ance with our decision in Indian Hills Care Center, 321 NLRB 144
(1996), and to provide for the posting of the notice in accord with J.
Picini Flooring, 356 NLRB 11 (2010). For the reasons stated in his
dissenting opinion in J. Picini Flooring, Member Hayes would not
require electronic distribution of the notice.
conditions of employment with one another, creating the
impression that employees’ union activities were under
surveillance, promising improved benefits to employees
during a union organizing campaign, soliciting grievanc-
es and promising to remedy them during a union organiz-
ing campaign, coercively interrogating an employee
about his union activities, and threatening to discharge
employees and to close and move the facility if they se-
lected the International Brotherhood of Teamsters, Local
777 (the Union) as their collective-bargaining representa-
tive.6 We also agree that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging employees
Carol Garcia and Pedro Salgado because they supported
the Union and engaged in other protected concerted ac-
tivities.
The Acting General Counsel excepts to the judge’s
failure to find that, as alleged in the complaint, the Re-
spondent violated Section 8(a)(1) by granting employees
a wage increase during the organizing drive. We find
merit in that exception. It is undisputed that the Re-
spondent, shortly after learning of the organizing drive,
told employees at a January 6, 2011 meeting that they
would be receiving a 50-cent-an-hour wage increase. It
is further undisputed that the wage increase became ef-
fective in the pay period following the January 6 meet-
ing.
It is well established that “[a]bsent a showing of a le-
gitimate business reason for the timing of a grant of ben-
efits during an organizing campaign, the Board will infer
improper motive and interference with employee rights
under the Act.” ManorCare Health Services–Easton,
356 NLRB 202, 222 (2010), enfd. 661 F.3d 1139 (D.C.
Cir. 2011) (citations omitted). The Respondent has not
made the requisite showing in this case. The Respondent
contends that it granted the wage increase in early Janu-
ary because it needed to set its wage rates before reibid-
ding on its 3-year contract with the Chicago Public
Schools. It offered no evidence, however, of when the
new rates had to be in place and failed to explain why it
could not have based its bid on projected wage rates.
There also is no evidence that the Respondent was con-
sidering a wage increase until after it became aware of
the union organizing campaign. Finally, the Respondent

6 We reverse the judge’s further finding that the Respondent unlaw-
fully threatened employees that it would be futile to select the Union as
their bargaining representative. The judge relied, in part, on Vice Pres-
ident Henry Garduñio’s alleged statement to Carol Garcia that he, Gar-
duñio, would never allow a union to represent the Respondent’s em-
ployees. The judge, however, discredited Garcia on this point. To the
extent the judge also relied on Maintenance Director Victor Gabino’s
threat to close and move the facility, which we agree was unlawful on
its own terms, it is unnecessary to find that Gabino’s statement was also
unlawful as a threat of futility.
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

made no attempt to communicate to employees that the
increase was independent of the ongoing union organiz-
ing campaign. For these reasons, we find that the Re-
spondent’s grant of the wage increase violated Section
8(a)(1) of the Act.
AMENDED REMEDY
The Acting General Counsel excepts to the judge’s
failure to recommend a broad order directing the Re-
spondent to cease and desist violating the Act “in any
other manner.” A broad cease-and-desist order is war-
ranted when a respondent is shown to have a proclivity to
violate the Act or has engaged in such egregious or wide-
spread misconduct as to demonstrate a general disregard
for employees’ fundamental statutory rights. See Hick-
mott Foods, 242 NLRB 1357, 1357 (1979). On the facts
of this case, we do not find that the Respondent has a
demonstrated proclivity to violate the Act. In addition,
although the Respondent discriminatorily discharged two
employees and violated Section 8(a)(1) in a variety of
ways, a broad remedial order is not justified merely by a
substantial number of violations. See Blankenship &
Associates, 306 NLRB 994, 994–995 (1992), enfd. 999
F.2d 248 (7th Cir. 1993). Accordingly, we find that a
broad cease-and-desist order is not warranted in this case.
For similar reasons, we are not persuaded by the Act-
ing General Counsel’s exception to the judge’s failure to
recommend that the notice be read aloud to employees
by the Respondent or a Board agent. The Acting General
Counsel has not demonstrated that this measure, in addi-
tion to the Board’s traditional remedies, is needed to
remedy the effects of the Respondent’s unfair labor prac-
tices. See Chinese Daily News, 346 NLRB 906, 909
(2006), enfd. mem. 224 Fed.Appx. 6 (D.C. Cir. 2007).
Notably, despite the Respondent’s misconduct, the Union
won the election and has been certified as the employees’
representative. See Latino Express, Inc., Case 13–RC–
022005 (April 15, 2011).
The Acting General Counsel has requested two addi-
tional remedies in connection with the issuance of a
backpay award to remedy the 8(a)(3) discharges of dis-
criminatees Garcia and Salgado. The first remedy in-
volves the judge’s ordering the Respondent to submit the
appropriate documentation to the Social Security Admin-
istration so that when backpay is paid, it will be allocated
to the appropriate calendar quarters.7 Backpay awarded
under a statute is creditable to the year(s) in which it

7 Although no party has excepted to this aspect of the judge’s reme-
dy, the Board has the authority to consider remedial issues sua sponte.
See, e.g., J. Picini Flooring, 356 NLRB 11, 12 fn. 5 (2010); Indian
Hills Care Center, 321 NLRB 144, 145 fn. 3 (1996) (citations omitted).
should have been paid.8 But, unless the employer or the
employee notifies the Social Security Administration in a
separate, special report, the employee’s backpay will be
posted to the employee’s social security earnings record
in the year received.9 Wages not credited to the proper
year may result in lower Social Security benefits or fail-
ure to meet the requirements for benefits.10 The Acting
General Counsel therefore sought an order requiring the
Respondent to make the necessary report to the Social
Security Administration, and the judge granted it.
The second requested remedy is raised by the Acting
General Counsel’s exception to the judge’s failure to
order the Respondent to reimburse the discriminatees for
any excess Federal and State income taxes they might
owe if they receive a lump-sum backpay award covering
more than 1 calendar year. Backpay is taxable income in
the year in which it is paid.11 Receipt of a lumpsum
backpay award covering more than 1 calendar year can
lift an employee into a higher tax bracket for the year in
which it is received, with the result that the employee
bears a greater tax burden than if she had received that
same pay in the normal course. Eshelman v. Agere Sys-
tems, Inc., 554 F.3d 426, 441 (3d Cir. 2009). The Acting
General Counsel seeks an order requiring the Respondent
to make an additional payment compensating the dis-
criminatees for any such increased tax burden.
Because adoption of these remedies in backpay cases
would mark a change in Board practice, the Board has
determined that it is desirable to ascertain the positions
of interested parties and to solicit information from them.
Accordingly, the Board has decided to sever these two
remedial issues and retain them for further consideration,
to permit the issuance of this decision regarding the re-
maining issues in the case. The Board will issue a sup-
plemental decision regarding the Social Security report-
ing requirement and tax compensation remedy at a later
date.
The Board invites all interested parties to file briefs in
this case regarding the questions of whether, in connec-
tion with an award of backpay, the Board should routine-
ly require a respondent to: (1) submit the appropriate
documentation to the Social Security Administration so
that when backpay is paid, it will be allocated to the ap-
propriate calendar quarters, and/or (2) reimburse a dis-
criminatee for any excess Federal and State income taxes

8 Internal Revenue Service, Reporting Back Pay and Special Wage
Payments to the Social Security Administration 2, Pub. 957 (May
2010).
9 Id.
10 Id.
11 Rev. Rul. 78-336, 1978-2 C.B. 255.
825
LATINO EXPRESS, INC.

the discriminatee may owe in receiving a lump-sum
backpay award covering more than 1 year.
Briefs not exceeding 25 pages in length shall be filed
with the Board in Washington, D.C. on or before October
1, 2012. No extensions will be granted. The parties to
the matter may file responsive briefs on or before Octo-
ber 15, 2012, which shall not exceed 10 pages in length.
No other responsive briefs will be accepted. The parties
and amici shall file briefs electronically at
https://mynlrb.nlrb.gov/efile. If assistance is needed in
filing through https://mynlrb.nlrb.gov/efile, please con-
tact Lester A. Heltzer, Executive Secretary, National
Labor Relations Board.
AMENDED CONCLUSIONS OF LAW
Replace the judge’s Conclusion of Law 3 with the fol-
lowing paragraph.
“3. By prohibiting employees from discussing terms
and conditions of employment with one another, creating
an impression that employees’ union organizing activi-
ties were under surveillance, promising improved bene-
fits to employees during a union organizing campaign,
soliciting grievances from employees during a union
organizing campaign, granting a wage increase to em-
ployees during a union organizing campaign, interrogat-
ing an employee by asking him whether he supported the
Union, threatening to discharge employees if they union-
ized, and threatening to close the facility and move the
Company to a different location in the event the employ-
ees unionized, the Company violated Section 8(a)(1).”
ORDER
The National Labor Relations Board orders that the
Respondent, Latino Express, Inc., Chicago, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they engage in protected union or
concerted activities, including supporting the Interna-
tional Brotherhood of Teamsters, Local 777 or any other
labor organization.
(b) Coercively interrogating employees about their un-
ion membership, activities, sympathies, or support.
(c) Prohibiting employees from discussing their terms
and conditions of employment.
(d) Creating the impression that it is engaged in sur-
veillance of its employees’ union or other protected con-
certed activities.
(e) Soliciting grievances from employees and promis-
ing to remedy them in order to discourage employees
from selecting union representation.
(f) Promising improved benefits to employees in order
to discourage employees from selecting union represen-
tation.
(g) Granting wage increases to employees in order to
discourage employees from selecting union representa-
tion.
(h) Threatening employees with discharge if they se-
lect the Union or any other labor organization as their
bargaining representative.
(i) Threatening employees with closure of their work
facility if they select the Union or any other labor organi-
zation as their bargaining representative.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Carol Garcia and Pedro Salgado full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Carol Garcia and Pedro Salgado whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, in the manner set
forth in the remedy section of the judge’s decision as
amended in this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and, within 3 days thereafter, notify the employees in
writing that this has been done and that the discharges
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 rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Chicago, Illinois facility copies of the attached notice
marked “Appendix.”12 Copies of the notice in English
and Spanish, on forms provided by the Regional Director

12 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.”
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since September 20, 2010.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 13 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the Social Security report-
ing requirement and tax compensation remedy discussed
in the “Amended Remedy” section of this decision are
severed from this case, and that the Board shall retain
jurisdiction over those matters for further consideration.
The Board will issue a supplemental decision regarding
those remedies at a later date.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

WE WILL NOT discharge or otherwise discriminate
against any of you for engaging in protected union or
concerted activities, including supporting International
Brotherhood of Teamsters, Local 777 or any other labor
organization.
WE WILL NOT coercively question you about your un-
ion membership, activities, sympathies, and/or support.
WE WILL NOT prohibit you from discussing your terms
and conditions of employment.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your union or other protected
concerted activities.
WE WILL NOT solicit grievances from you and promise
to remedy them in order to discourage you from selecting
union representation.
WE WILL NOT promise you improved benefits in order
to discourage you from selecting union representation.
WE WILL NOT give you wage increases in order to dis-
courage you from selecting union representation.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Union or any other
labor organization.
WE WILL NOT threaten you with closure of your work
facility if you select the Union or any other labor organi-
zation as your bargaining representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Carol Garcia and Pedro Salgado full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Carol Garcia and Pedro Salgado whole
for any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Carol Garcia and Pedro Salgado, and
WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the discharges
will not be used against them in any way.

LATINO EXPRESS, INC.

Jeanette Schrand, Esq., for the General Counsel.
Zane Smith, Esq. (Zane D. Smith & Associates, Ltd.), of Chica-
go, Illinois, and Sheila Genson, Esq. (The Law Office of
Sheila A. Genson, Ltd.), of Schaumburg, Illinois, for the
Respondent.
Gregory Glimco, of Brookfield, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Chicago, Illinois, on April 25–27, 2011. The
charges in Cases 13–CA–046528 and 13–CA–046529 were
827
LATINO EXPRESS, INC.

filed on January 18, 2011,1 and the charge in Case 13–CA–
46634 was filed on March 9. The complaint issued April 6.
The consolidated complaint (the complaint) alleges that: Latino
Express, Inc. (the Company) violated Section 8(a)(3) and (1) of
the National Labor Relations Act (the Act) by discharging Car-
ol Garcia and Pedro Salgado on December 10, 2010, and Janu-
ary 12, 2011, respectively, for engaging in protected concerted
activities.
The Company is also charged with a myriad of violations of
Section 8(a)(1) of the Act: preventing employees from discuss-
ing terms and conditions of employment with one another;
creating an impression that employees’ union organizing activi-
ties were under surveillance; promising improved benefits to,
and soliciting grievances from, employees during a union or-
ganizing campaign; interrogating an employee by asking him
whether he supported the Union; threatening to discharge em-
ployees if they unionized; threatening to close the facility and
move the Company to a different location in the event the em-
ployees unionized; and warning employees that it would be
futile to form a union because the Company would never agree
to allow a labor organization to represent them.2
The Company denied the material allegations of the com-
plaint and asserts that Garcia was discharged for threatening her
supervisor, while Salgado was discharged for stealing company
money for charter services.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, with an office and place of
business in Chicago, Illinois, has been engaged in the business
of providing bus transportation services for students as well as
charter bus services to the general public. In conducting its
transportation services, the Company annually derives gross
revenues in excess of $250,000, and purchases and receives at
its Chicago facility goods and materials valued in excess of
$5000 from points directly outside the State of Illinois. The
Company admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.

1 All dates are from September 2010 to February 2011 unless other-
wise indicated.
2 At the end of the second day of trial, the General Counsel moved to
amend par. V(5)(e) of the complaint to allege additional 8(a)(1) viola-
tions based on subpoenas duces tecum served on three employees on
April 18, 2011; the subpoenas sought production of union-related pam-
phlets, letters, emails, notices, or electronic communications. (Tr. 497–
499.) After legal argument at the outset of the third and last day of
trial, I found plausible merit to the proposed motion to amend. See
Guess ?, Inc., 339 NLRB 432, 434 (2003); Wright Electric, Inc., 327
NLRB 1194 (1999); National Telephone Directory Corp., 319 NLRB
420 (1995). However, relying on Stagehands Referral Service, LLC,
347 NLRB 1167 (2006), I denied the application on the ground that it
was inexcusably late and prejudicial to the Company. (Tr. 566–575.)
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Operations
1. General operations
The Company provides bus transportation services within the
Chicago metropolitan area. Its primary work arises from a con-
tract with the Chicago Public Schools (CPS) system for the
2010–2011 school year. At all material times the following
individuals were employed in supervisory capacities within the
meaning of Section 2(11) or as agents within the meaning of
Section 2(13) of the Act: Michael A. Rosas Sr.—president;3
Henry Garduñio—vice president; Joseph Garduñio Sr.—owner;
Victor Gabino—maintenance director; Sarah Martinez—
dispatcher/manager;4 and Raymundo Del Toro Jr.—charter
director.5
The Company is owned in equal one-third shares by Michael
A. Rosas Sr., Henry Garduñio, and Joseph Garduñio. Henry
Garduñio oversees the Company’s daily operations.6 Sylvia
Torres is an administrative assistant with a myriad of responsi-
bilities, including payroll, bill payments, scheduling of meet-
ings, and implementing employee discharges.7
Carol Garcia was employed as a bus driver by the Company
during the 1990’s before returning to their employ in Septem-
ber 2008. Pedro Salgado had been employed by the Company
on and off since July 2006 as a standby driver to fill in for regu-
larly scheduled drivers.
2. Charter services
In addition to providing bus transportation to the CPS, the
Company provides charter bus transportation to other organiza-
tions. Those organizations pay for the charters by cash, check,
money order, or purchase order. Raymundo Del Toro was the
charter director until he was terminated in December. He was
required to compensate charter drivers by check for one-third of
the amount charged the customer. There was no written policy
relating to charter assignments and Del Toro had complete
discretion as to whom they were assigned. Unbeknownst to
management, however, Del Toro paid several drivers by cash
for their charters. These employees included Pedro Salgado,

3 During a pretrial conference on April 7, the Company’s trial coun-
sel noted the similarity in names between me and the Company’s Presi-
dent, Michael A. Rosas Sr. I informed counsel for the parties that I was
unaware of any extended family relationship between me and Mr.
Rosas. The Company’s counsel responded that he was unaware of any
information to the contrary.
4 The Company admits supervisory and agent status on the part of
these individuals. (GC Exh. 1(k).)
5 Del Toro was not listed in the complaint as a statutory supervisor
or agent. Essentially seeking to conform the pleadings to the proof, the
General Counsel, citing Oakwood Healthcare, Inc., 348 NLRB 686
(2006), established that Del Toro was a company supervisor and agent
based on testimony that he exercised independent judgment to assign
charter work. (Tr. 323.)
6 Unless otherwise stated, all references to Garduñio are to Henry
Garduñio. (Tr. 582–583.)
7 Although not pled in the complaint, Garduñio testified that she was
part of his management team and was given the responsibility of notify-
ing former Charter Director Del Toro that he was terminated. (Tr. 626–
628, 649–650.)
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Sosino, Salvador, Juvencia, Pedro Garcia, Alfonzo Avila, Tel-
mo Hernandez, Nicolas Paredes, and David Guerraro.8
Salgado was assigned a charter during the fall of 2010, but
his subsequent paycheck did not reflect compensation for that
service in accordance with Company procedure. He ap-
proached Del Toro, who instructed him to return later and re-
frain from speaking to anyone about the matter. Salgado re-
turned later and Del Toro handed him $100 in cash.9
At some point after employees went on vacation status dur-
ing the December 2010–January 2011 school holiday recess,
Garduñio learned from a clerical assistant who reviewed in-
voices that Del Toro was misappropriating charter money.10
Del Toro would deposit checks into his checking account and,
after they cleared, would pay the charter drivers in cash.11
3. Policies
Several Company policies or procedures are at issue. Three
of them appear typical to the normal operation of a business.
The first involves employee raises. Based on the Company’s
typical 3-year contracts with the CPS, the Company typically
determines the amount of employee salaries prior to the begin-
ning of the contract term.12 A second policy prohibits stealing.
An example of stealing is where an employee fails to turn into
the Company money received from a customer for a charter.13
The third policy is a vague and inconsistent prohibition against
threats to other employees; prior to 2010, Garduñio terminated
one employee for threatening him, but took no action against
another employee for the same conduct. More recently, in
February 2011, Garduñio issued a verbal warning to an em-
ployee for intimidating two other employees.14

8 Although not disputed that there was a Company procedure requir-
ing Del Toro to pay charter drivers by check, there was no evidence
that drivers were actually prohibited from receiving their charter com-
pensation in cash. (Tr. 322–326, 351, 382–386.)
9 I found Salgado credible on this point, even though he conceded
that receiving compensation in cash seemed inappropriate. The Com-
pany, even though it called Del Toro, did not challenge Salgado’s as-
sertion that he did, in fact, perform the charter at issue and received
only $100 in cash for his services. (Tr. 387–389, 403–404, 420-423.)
10 Although Melissa Morales did not testify, it is not disputed as to
how Garduñio learned that Del Toro was stealing money from the
Company. (Tr. 639–641.)
11 Notwithstanding Del Toro’s concession that he was stealing mon-
ey from the Company (R. Exhs. 12–14.), there was no testimony to
indicate that charter drivers whom he paid in cash failed to provide
charter services or received more than one-third of the charter amount
paid by customers for their services. (Tr. 325–327; R. Exhs. 5A–B,
6A–B, 7D(5), 7D(22)–23, 7D(25)–(26).)
12 Although not disputed that salaries needed to be determined before
submitting a bid to the CPS, it is unclear as to when bids were due for
the next bus services contract. (Tr. 644–646.)
13 Garduñio was evasive as to whether a charter driver was at fault
for accepting cash from the charter director for services performed. On
cross-examination, he sidestepped the role of the charter director and
maintained that an employee stole money from the Company if he/she
received cash for a charter and “if we don’t know about this cash.” (Tr.
612–614.)
14 In spite of counsel’s leading questions, Garduñio conceded that
there is no written policy prohibiting employee threats. He eventually
caught on and testified that there was an unwritten policy against
The last policy at issue relates to the Company’s penchant
for avoiding insurance coverage for property damage claims.
Whenever an employee, while in the scope of his/her employ-
ment, causes property damage to a Company or other vehicle,
the Company requires the employee to reimburse the Company
for 25 percent of the damages. In return for such compliance,
the Company does not document the incident in the employee’s
driving record.15
B. The Union Organizing Campaign
The union organizing campaign began in November 2010.
After being contacted by employee Frank Hernandez, Union
Organizer Elizabeth Gonzalez provided authorization cards and
scheduled meetings with employees to discuss the prospects for
the formation of a bargaining unit. Several weeks later, in late
November 2010, Hernandez met with Elizabeth Gonzalez and
they agreed to initiate an organizing campaign with company
employees. Within days, Hernandez succeeded in having sev-
eral employees, including Carol Garcia and Pedro Salgado sign
union authorization cards. He was also able to enlist them to
solicit signatures from other employees.16
On December 9, Gonzalez and two other union representa-
tives met with the first group of employees at Mariscos El
Abuelo y Yo, a local seafood restaurant (the seafood restau-
rant), for about 1-1/2 hours. Located at the corner of 38th Street
and Kedzie Avenue, the seafood restaurant was about a city
block away from the Company’s facility. The employees in
attendance included Hernandez, Carol Garcia, Pedro Salgado,
Major Rose, Edwardo Farerra, and Pedro Garcia. Gonzalez
received 27 union cards and gave the employees more to dis-
tribute to other employees.17
When the meeting ended, the employees and union repre-
sentatives exited the restaurant at about 6 p.m. and congregated
briefly on the corner. Gonzalez and the other two union repre-
sentatives wore jackets and hats emblazoned with Teamsters
insignias. Their location was well lit by street lights. At that
point, Sara Martinez, the Company’s dispatcher/manager, was
in a company vehicle a short distance away in the adjacent
intersection. As she waited for the traffic light to turn green,

threats. (Tr. 688–689.) That policy is, at best, inconsistent. On Febru-
ary 11, driver Kennith Mitchel received a verbal warning for intimidat-
ing two other employees. (R. Exhs. 7D–18.) In another instance, Gar-
duñio immediately terminated Miguel Saballo for threatening him. (Tr.
607–608.) In yet another instance, however, he took no action against
an employee who threatened him 2 years earlier and recently assaulted
him. (Tr. 687–688.)
15 The Company’s practice of charging their employees for the cost
of automobile damage was not disputed. (Tr. 215–217, 363, 684–686.)
16 Although undisputed that Garcia and Salgado solicited coworkers
and/or obtained signatures for union authorization cards, there is no
direct proof that company managers or supervisors knew about their
activity. (Tr. 56–60, 251–252, 254–255, 259–261, 354–357, 361; GC
Exhs. 5, 7.)
17 Similarly, it is not disputed that this activity occurred and that
Carol Garcia and Salgado were present. (GC Exh. 2; Tr. 58–60, 64–69,
90–92, 260–264, 358, 471–472.)
829
LATINO EXPRESS, INC.

Martinez looked directly at the employees.18 Upon returning to
the facility, Martinez reported her observations to Garduñio.19
C. December 10
On December 10, the day following the meeting at the sea-
food restaurant, Del Toro informed Pedro Garcia over the com-
pany radio that Maintenance Director Victor Gabino wanted to
speak with him. Pedro Garcia complied and immediately re-
ported to Gabino. Gabino proceeded to inform Garcia that he
learned of the Union’s organizing efforts and that many of the
drivers were upset with that activity. Pedro Garcia acknowl-
edged the union activity and proclaimed his support for the
Union.20
Later that same day, Pedro Garcia, along with coworkers
Ramiro and Tina, were summoned to a meeting in a conference
room with several managers and supervisors, including Michael
Rosas Sr., Michael Rosas Jr., and Sara Martinez.21 Michael
Rosas Sr. directed his son, Michael Rosas Jr., to address the
employees. Michael Rosas Jr. proceeded to inform the employ-
ees that company management was aware of the union organiz-
ing campaign.22 Ramiro promptly expressed his opposition to
the formation of a union. Rosas Jr. followed with a promise to
improve employee benefits, which led to a heated exchange
between Pedro Garcia and Ramiro about unionized bus compa-
nies in the Chicago area. Martinez then challenged Pedro Gar-
cia to name a unionized bus company in Chicago. The discus-
sion moved to the issue of standby drivers. Pedro Garcia ar-
gued in favor of higher wages for standby drivers, while Mi-
chael Rosas Sr. responded that the Company would consider
giving the employees 2 weeks of paid vacation. He added that
the Company would schedule a meeting to propose those bene-
fits to the drivers after the holidays.23

18 Witness estimates as to Martinez’s distance from the group ranged
from 20 to 50 feet. Nevertheless, the credible and fairly consistent
testimony of meeting participants as to the lighting conditions, as well
as Martinez’ nearby position as she observed the group, went unrebut-
ted. (Tr. 72–75, 91–92, 120–122, 264–266, 304–313, 358–360, 409–
413, 438–439, 445–449, 469–477.)
19 Without Sara Martinez’ testimony to shed a different light, I found
it suspicious that she would simply tell Garduñio that she observed a
group of employees leaving a restaurant and nothing else. (Tr. 612,
692–694.)
20 Gabino was not called as a witness to refute Pedro Garcia’s credi-
ble testimony regarding this meeting. (Tr. 92–98, 122–124.)
21 There was insufficient evidence to establish that another partici-
pant, Sylvia Torres, was a statutory supervisor. Pedro Garcia believed
that she was “in charge of the office that’s upstairs.” (Tr. 99.) Such a
vague description of Torres’ duties is insufficient to establish supervi-
sory status.
22 Given the credible and undisputed evidence as to what Michael
Rosas Jr. and Gabino told employees on December 10, I do not credit
Garduñio’s assertion that he only learned about the union activity after
he received a letter from the Union in mid to late January 2011. (Tr.
637.)
23 I base this finding on Pedro Garcia’s credible and unrebutted tes-
timony. (Tr. 98–104, 129–130, 135–137.) Given that none of the
company witnesses testified, I find Garduñio’s reference to the Compa-
ny’s prior announcement that it was considering a 401(k) benefits plan
to relate to the December 10 meeting. (Tr. 643.)
D. Carol Garcia
On June 5, 2010, Carol Garcia was involved in a motor vehi-
cle accident while operating a Company bus.24 The other vehi-
cle sustained approximately $4000 worth of property damage.25
Sometime in September, in accordance with Company practice,
Melissa Morales, a clerical assistant, presented Garcia with a
bill for $800, or approximately 25 percent, of the total cost of
the accident paid out by the Company. Garcia did not dispute
her culpability for the accident, but insisted on speaking with
Garduñio first before signing the reimbursement agreement.26
Garduñio spoke to Garcia on September 20. He informed
her that employees were required to pay for 25 percent of the
Company’s costs for any damages caused by an employee’s
operation of a company vehicle. Garcia protested having to
take responsibility for the damages and suggested that the prac-
tice was attributable to the Company’s lack of insurance cover-
age during the summer months. She also mentioned that she
discussed this issue with coworkers and that they were not hap-
py about this and other aspects of their work. Garduñio denied
Garcia’s contention that the Company lacked insurance and
instructed her to refrain from speaking about such issues with
coworkers. Garcia challenged Garduñio to produce proof of
insurance coverage. Reacting to Garcia’s relentless resistance
to the reimbursement issue, Garduñio told her to wait while he
went to his office to check her driving record. He returned a
few minutes later, told Garcia that he would reduce her respon-
sibility for the accident costs by half to $400, but directed her
not to divulge the agreement to anyone and to stop “riling” up
other workers. Garcia reluctantly agreed to sign the agree-
ment.27 As the encounter wound up, however, she approached
Garduñio and, from a few feet away, pointed a finger at him
and warned that he “would pay for this.” Garcia added that
“[w]hen somebody plays with my money, I get them back.”
Garduñio, clearly satisfied by the fact that Garcia signed the
agreement, ignored her remarks and went about his business.28

24 All references in this section to Garcia are to Carol Garcia.
25 Carol Garcia conceded that she was at fault in the accident, which
resulted in approximately $4000 worth of damages, with $3189 of that
amount paid by the Company. (Tr. 215–217, 231–233, 684–686.)
26 I base this finding on Garcia’s credible and unrebutted testimony.
(Tr. 217–219, 226–227; GC Exh. 3.) Subsequent testimony revealed
that “Melissa” was Melissa Morales, a clerical assistant. (Tr. 628.) She
did not testify.
27 GC Exh. 4.
28 My findings as to the September 20 incident are based on portions
of testimony by Garduñio and Garcia. Garduñio’s testimony, contra-
dicted by several pretrial statements, was not entirely credible. Never-
theless, I credited much of his version regarding Garcia’s outburst. I
also credit his testimony that Garcia did not mention, at that point, any
employee interest in a union, as the weight of the credible evidence
indicates that employee interest in a union began in November. (Tr.
608–609, 679–687, 710–713, 722.) I was not impressed by his irrele-
vant contention, however, that Garcia, stipulated to weigh much more
than Garduñio, placed him in fear for his physical well-being. (Tr.
683–684.) Nevertheless, coupled with my observation of her earlier
testimony containing specific details of the encounter, Garcia’s tenta-
tive response on rebuttal, when asked whether she warned Garduñio
that he was going to pay her back or that she would get back at him in
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Still seething from her September 20 encounter with Gar-
duñio, Garcia raised the issue with several people, including
several coworkers. Subsequently, Garcia, Pedro Salgado,
Frank Hernandez, and several other employees met at a local
Chinese restaurant to discuss several work-related issues, in-
cluding wages, work assignments, and the accident reimburse-
ment policy. The meeting concluded with the participants de-
ciding that Hernandez would explore the possibility of employ-
ee representation by a labor organization.29
On December 10, Garcia returned to the drivers’ room after
completing her bus route when Garduñio called her into a meet-
ing in the dispatcher’s office. This was the day after she at-
tended the meeting in the seafood restaurant and the same day
that several supervisors informed employees that they knew
about and opposed the union organizing effort. With Melissa
Morales present, he handed Garcia a violation notice terminat-
ing her employment. After some discussion as to whether Gar-
cia could read Spanish, Garduñio read the portion reflecting her
alleged threat: “You’re going to pay me back for this. When a
person does something to me, I will do something to get back at
this person. They’re not going to play with my money.” Gar-
cia asked for the particulars as to when and where she made
that statement. Garduñio said that the incident related to the
earlier discussion in his office about reimbursement for her
accident. Garcia did not dispute making the statement, but
noted that the discussion took place outside Garduñio’s office.
Garduñio responded that he felt threatened by her remarks and
consulted an attorney, who advised that he could discharge
her.30
E. The January 6 Meeting
Following up on management’s remarks to employees on
December 10, the Company convened a meeting when the
drivers returned to work after the holidays on January 6. At
this meeting, Garduñio announced two major developments: a
50-cent hourly wage increase for drivers, effective the follow-
ing week;31 and a change in the charter assignment process
from one that generally favored office staff and mechanics to
one deferring to the drivers based on seniority. Garduñio also
told the employees during this meeting that they should form a

some way—“No, that I recall, no”—was unconvincing. On the other
hand, Garduñio did not deny Garcia’s contentions regarding the lack of
insurance coverage, his prohibition against “riling” up coworkers and
the fact that he consulted an attorney before deciding to terminate her.
(Tr. 230–242, 270–272, 779–780.)
29 There is no dispute that this protected concerted activity took
place. (Tr. 86–89, 245–251, 352–355, 486–489.)
30 Garcia challenged Garduñio’s recollection as to whether the
statement was made in his office or outside the office. She did not,
however, deny making the statement. (Tr. 266–273; GC Exh. 6.) On
the other hand, Garduñio did not refute her testimony that he consulted
an attorney before terminating her. (Tr. 271.) That seemed more plau-
sible than his assertion that he wondered what to do about the incident
for 2 months before being inspired by a police officer in a community
patrol group (“CAPS”) who suggested that “[y]ou cannot be nice with
these people.” (Tr. 687–688.)
31 The wage increase became effective the following pay period.
(Tr. 109, 601–602.)
drivers’ committee with whom he would meet to discuss issues
of concern.32
At the January 6 meeting, Garduñio also announced that Del
Toro was no longer the charter director. Salgado asked Gar-
duñio why drivers were being paid in cash. After asking Mi-
chael Rosas Sr. if he knew anything about it, Garduñio denied
that such a practice existed and asked Salgado for more details.
Realizing that his remark caused a stir among the drivers, Sal-
gado declined to say anything else.33
F. January 7
The day after the January 6 meeting, Salgado and Hernandez
had a conversation with Supervisor Victor Gabino. Gabino
warned that the Union would charge the employees a lot of
dues, asked why they needed a union, and suggested they form
a committee to pursue their issues with management. Hernan-
dez responded that “we already had our committee, that we had
65% of the drivers signed up.”34
On the same day, Garduñio approached Salgado, Frank Her-
nandez, and another driver, Telmo Hernandez, as they sat in the
lunchroom. He asked Salgado how he heard about the charter
drivers being paid cash. Salgado responded that he heard ru-
mors to that effect and suggested he check with the charter
director. After Telmo Hernandez remarked that such a practice
was attributable to Company’s desire to avoid Federal income
taxes, Frank Hernandez turned the conversation to Carol Gar-
cia’s discharge.35
G. Pedro Salgado
After Salgado’s remarks at the January 6 meeting, Garduñio
sought to determine which drivers received payments in cash
from Del Toro for their charter services. He eventually deter-
mined that about 12 drivers received cash payments from Del

32 Garduñio’s announcement of these changes at the meeting is not
disputed. (Tr. 104–109, 362–364, 414–418, 481–482, 599–604, 648–
652.) Notwithstanding Garduñio’s subsequent denial, his shifting and
contradictory testimony, his statements in a Board affidavit, as well as
the Company's position statement, establish that he knew about em-
ployee union activity prior to January 6. (Tr. 631–635; GC Exh. 12.)
Moreover, given Garduñio’s lack of credibility on this issue, it is also
clear that any statements by him to unidentified employees refusing to
meet with a group, if true, would have occurred after January 6. (Tr.
605–606, 668–671.)
33 The differences in testimony as to what Salgado blurted out to
Garduñio were insignificant. Pedro Garcia, Frank Hernandez and Sal-
gado testified that Salgado raised the issue of cash payments for char-
ters, while Garduñio testified that Salgado complained that he was
owed money. (Tr. 107–109, 365–366, 416–419, 449–451, 479–481,
638–640, 653.) Although I find it more credible that Salgado raised the
issue of cash payments and was not claiming to be owed anything,
either version established that Garduñio had reason to believe that
Salgado actually performed the charter services that he was referring to.
34 I base this finding on the credible and unrebutted testimony of
Salgado and Hernandez. Hernandez said that the conversation took
place between December and January, while Salgado pinpointed the
date as January 7. (Tr. 369–371, 457–459.)
35 I base this finding on the credible and unrebutted testimony of
Salgado and Hernandez. (Tr. 367–368, 451–452.). Garduñio’s testimo-
ny that he was invited into the meeting is not credible, given that he
wanted to talk to Salgado about the charter situation. (Tr. 672–673.)
831
LATINO EXPRESS, INC.

Toro. Of those 12 drivers, only Salgado was terminated. On
January 12, Garduñio terminated him on the ground that he
stole from the Company. Unlike Salgado, however, other driv-
ers were afforded the opportunity to return the money they
received from Del Toro. Some were placed on probation; oth-
ers have never been disciplined.36
H. Additional Interrogation
Sometime in late January or early February 2011, the Com-
pany convened a meeting of the drivers to listen to a speaker on
the subject of union membership and its disadvantages. At
some point during the meeting, Garduñio learned that an em-
ployee was filming the presentation. He went down to the
meeting and stopped the filming.37 After the meeting, Gar-
duñio approached several drivers in the drivers’ room. After
asking one of them his position on union affiliation, Garduñio
asked Hernandez why he was wearing a union shirt at work and
noted that the shirt bothered some of the drivers. After Her-
nandez rejected his comment, Garduñio said that the CPS did
not like to do business with union companies. He added that
union affiliation would cause the Company to bid higher on
future CPS contracts, reduce its driver work force, and possibly
lose CPS contracts. He concluded the discussion by comment-
ing that they did not need a third party involved, adding that
“we could talk about this.”38
Around the same time, Gabino followed up on Garduñio’s
statements with a warning to Hernandez that the Company

36 There is no dispute that Del Toro stole the Company’s share of
charter fees. However, Garduñio also insisted on classifying the act of
employees being paid cash for services as theft when they actually
performed the charter services. That contention was not credible, espe-
cially when applied as a justification for Salgado’s discharge, while
issuing lesser discipline to others. It was evident that he had already
determined to discharge Salgado when he met with him on January 12.
Nor did he testify that he offered Salgado, unlike the other employees,
an opportunity to pay back the cash he received for services rendered.
Based on the foregoing, Garduñio’s contention that he is still investi-
gating some of other drivers is simply incredible. (GC Exhs. 8–10; Tr.
372–375, 377–389, 426–427, 613–626, 654–655.)
37 I initially sustained the Company’s objection as to testimony about
the guest speaker coming in to address the drivers on the ground that
such an event was outside the scope of the complaint and the General
Counsel’s excuse that the General Counsel might seek to amend the
complaint at that late juncture was inadequate. (Tr. 452–455.) Howev-
er, the Company later developed testimony about the guest speaker on
cross-examination (Tr. 490–491), the General Counsel pursued that line
on further examination (Tr. 629–630) and the Company followed up
with yet more testimony about that meeting. (Tr. 673–678.) The Gen-
eral Counsel did not, however, follow up with an application to amend
the complaint.
38 I found the testimony of Hernandez and Pedro Garcia more credi-
ble than that of Garduñio as to whether the latter was invited by the
drivers into a meeting or thrust himself upon them. Garduñio’s conten-
tion that he was invited was significantly contradicted by his pretrial
affidavit and was, therefore, not credible. Moreover, he did not refute
their testimony as to his statements at the meeting. (Tr. 111–112, 456–
457, 588–591, 598–599, 704–706.)
might close the facility and re-open elsewhere in order to avoid
the Union.39
III. LEGAL ANALYSIS
A. 8(a)(1) Violations
The amended complaint alleges that the Company violated
Section 8(a)(1) by: preventing employees from discussing
terms and conditions of employment with one another; creating
an impression that employees’ union organizing activities were
under surveillance; promising improved benefits to, and solicit-
ing grievances from, employees during a union organizing
campaign; interrogating an employee by asking him whether he
supported the Union; threatening to discharge employees if
they unionized; threatening to close the facility and move the
Company to a different location in the event the employees
unionized; and warning employees that it would be futile to
form a union because the Company would never agree to allow
a labor organization to represent them. The Company denied
the allegations in its answer, but did not offer evidence to the
contrary as to some of them.
It is an unfair labor practice for an employer to interfere
with, restrain, or coerce employees in the exercise of their Sec-
tion 7 rights. 29 U.S.C. § 158(a)(1). Section 7 confers upon
employees the right to self-organization, to form, join, or assist
labor organizations, and to engage in other concerted activities
for the purpose of mutual aid and protection. 29 U.S.C. § 157.
Employees may be said to be exercising their Section 7 rights
where they discuss organizing amongst themselves. Central
Hardware Co. v. NLRB, 407 U.S. 539, 542 (1972). Similarly,
employees are engaged in Section 7 activity where they are
seeking to improve terms and conditions of employment. East-
ex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). Where an individ-
ual employee seeks to improve terms and conditions of em-
ployment his actions are protected under the Act if he intends to
induce group activity or acts as a representative of at least one
other employee. NLRB v. City Disposal Systems, 465 U.S. 822,
831 (1984). Additionally, where an employee raises a common
concern in a group meeting the Board has found that action to
be concerted activity. E.g. Grimmway Farms, 315 NLRB
1276, 1279 (1995).
An 8(a)(1) violation exists where an employer interferes
with, restrains, or coerces employees in the exercise of their
Section 7 rights. 29 U.S.C. § 158(a)(1). Determinative in find-
ing such a violation is whether the employer engaged in con-
duct that may reasonably tend to interfere with the free exercise
of employee rights under the act. Munro Enterprises, Inc., 210
NLRB 403, 403 (1974). Inherent in this test is that to prove a
8(a)(1) violation the General Counsel need not prove either
intent on the part of the employer, nor that the conduct actually
had the effect of coercion on the part of the employee. Hanes
Hosiery, Inc., 219 NLRB 338, 338 (1975).
1. Impression of surveillance
The General Counsel contends that the Company unlawfully
created an impression of surveillance through comments made

39 I base these findings on Hernandez’ credible and unrebutted testi-
mony. (Tr. 457–458.)
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

by both Victor Gabino and Henry Garduñio to various employ-
ees concerning their involvement in the union organizing cam-
paign. The Company denied the allegation, but did not address
these particular alleged violations in its brief. The test for de-
termining whether an employer has created an impression of
surveillance is whether the employee would reasonably assume
from the employer’s statements that he had been placed under
surveillance. Register Guard Publishing Co., 344 NLRB 1142,
1144 (2005). The Board does not require evidence that the
employer actually learned of the employee’s activity, nor does
it require evidence that the employee intended his union activi-
ty to be covert. Flexsteel Industries, 311 NLRB 257, 257
(1993). Rather an employer violates Section 8(a)(1) by indicat-
ing that it is closely monitoring the degree of an employee’s
union involvement. Id.; see Emerson Electric Co., 287 NLRB
1065, 1065 (1988) (finding an 8(a)(1) violation where the em-
ployer told the employee that he knew he was involved in the
union activity, but also that he was neither a “pusher” for or
against the effort); Homer D. Bronson Co., 349 NLRB 512, 512
(2007) (holding that an 8(a)(1) violation existed where the em-
ployer told the employee that he was aware the employee spoke
to other employees about a union).
Here, Victor Gabino’s conversation with Pedro Garcia, in
which Gabino indicated that he was aware that Garcia was
among the employees who wanted to unionize, constitutes an
impression of surveillance. Although Gabino did not make any
direct threats with regard to this knowledge, an impression of
surveillance was created by simply informing Garcia that he
was aware of his union activity. Under the Board’s test, Garcia
would reasonably assume that he had been placed under sur-
veillance, thus violating the Act.
Similarly, Garduñio’s statement to Garcia and some other
drivers that he knew something was going on, and would kick
those drivers out once he found out, also created an impression
of surveillance. As stated in Flexsteel, the Board does not re-
quire that the employer actually find out what Section 7 activity
the employees are engaged in. 311 NLRB at 257. Rather, his
statements clearly gave the impression that the employees were
being placed under surveillance. Accordingly, this constitutes
an 8(a)(1) violation.
2. Promising improved benefits
The General Counsel contends that the Company unlawfully
sought to give its employees improved benefits during their
union organizing campaign in the form of a promise to increase
vacation time or increase wages. The Company contends that
the actions were lawful because they were not accompanied by
any comments that the benefits would be granted to employees
contingent on them rejecting the Union.
An 8(a)(1) violation exists where an employer announces,
promises, or grants benefits in order to discourage union sup-
port. Curwood, Inc., 339 NLRB 1137, 1147 (2003). As stated
by the Supreme Court, the danger inherent in well-timed in-
creases in benefits is the implication that employees must disa-
vow support for a union in order to continue to receive these
benefits. NLRB v. Exchange Parts Co., 375 U.S. 405, 409
(1964). It is sufficient that these benefits are conferred during
an organizing campaign in order to constitute interference with
employees’ Section 7 rights. Hampton Inn NY–JFK Airport,
348 NLRB 16, 17 (2006). The employer must, however, have
knowledge of the union activity in order for a grant of benefits
to be considered unlawful. Norfolk Livestock Sales Co., 158
NLRB 1595, 1595 (1966). Where the employer is offering
increased benefits simply in an attempt to decrease the future
appeal of unionizing, rather than an attempt to decrease the
appeal of a current campaign, that does not constitute an 8(a)(1)
violation. Hampton Inn, 348 NLRB at 17.
Here, the promise to increase benefits, either in the form of a
2-week paid vacation, or in the form of a wage increase in the
January 6 meeting (depending on what the employees would
rather have had), constituted interference with the employee’s
Section 7 rights. At this point, the Company clearly knew of
the union activity, and was intent on defeating the organizing
campaign, as evidenced by Michael Rosas Jr.’s proposal to
increase vacation time during his prior conversation with Pedro
Garcia. Previous comments, such as those made by Gabino and
Garduñio, also demonstrated the Company’s desire to deter the
employees from unionizing. Accordingly, this increase in ben-
efits cannot be said to have been aimed at decreasing the gen-
eral appeal of unionizing, but rather, was aimed at defeating the
organizing campaign.
The Company incorrectly argues that the benefits were not
unlawful because there were no statements directly linking
them to the employees’ support of the Union. The Board, how-
ever, has made clear that it does not need such explicit and
direct evidence to find an employer’s granting of increased
benefits to be unlawful. See Yale New Haven Hospital, 309
NLRB 363, 366 (1992) (stating that absent a showing of a legit-
imate business reason for the timing of a grant of benefits dur-
ing an organizing campaign, the Board will infer improper
motive). The employer failed to offer any evidence supporting
that the proposed increase in vacation time and promised in-
crease in wages were a result of a valid business justification.
Rather, the timing of the benefits, coupled with the December
10th meeting between Rosas and Garcia, clearly indicate an
attempt to use these benefits to defeat the organizing campaign,
thus constituting an 8(a)(1) violation.
3. Solicitation of grievances
The General Counsel contends that the Company unlawfully
sought to solicit grievances from its employees, in the form of a
committee, in an attempt to defeat the union organizing cam-
paign. The Company contends that Garduñio sought to solicit
grievances prior to his actual knowledge of the union organiz-
ing campaign and, in fact, refused to solicit further upon learn-
ing of the employees’ efforts.
An employer interferes with Section 7 rights where he solic-
its employee grievances during an organizational campaign and
promises, either expressly or implied, that those grievances will
be remedied. Briarwood Hilton, 222 NLRB 986, 989 (1976);
see Capital EMI Music, 311 NLRB 997, 1007 (1993) (holding
that soliciting grievances during union organizing inherently
constitutes an implied promise to remedy them). Implicit in
that promise is that unionizing is unnecessary because the em-
ployees’ grievances will be righted absent a union. House of
Mosaics, Inc., 215 NLRB 704, 704 (1974). Where an employer
833
LATINO EXPRESS, INC.

solicits grievances in accordance with past practices, prior to
any union activity, however, he may not have violated the Act.
Yale New Haven Hospital, supra at 365.
Here, the Company directly solicited employee grievances
by virtue of Garduñio’s suggestion that they form a committee
to address their problems at the January 6 meeting. There is no
proof that the Company ever solicited employee grievances
before then. Occurring during an organizing campaign, which
management was well aware of, Garduñio’s statement evidenc-
es Company interference with employees’ Section 7 rights in
violation of Section 8(a)(1).
4. Employee interrogation
The General Counsel contends that the Company unlawfully
interrogated an employee by asking him whether he supported
the Union. The Company denies the allegation and insists that
he made the statement after being invited into a meeting with
the drivers.
Employee interrogations that tend to coerce or interfere with
Section 7 rights are unlawful. Rossmore House, 269 NLRB
1176, 1177 (1984). In determining whether an interrogation is
unlawful, the Board considers all of the relevant circumstances.
Id. Factors include the scope of the questioning, the interroga-
tor’s position in the company, and the particularized nature of
the information sought. Cumberland Farms, 307 NLRB 1479,
1479 (1992). Where the interrogation occurs in an atmosphere
of animosity toward the union, and is directed at discovering
the identity of union organizers, it may be coercive. M.F.A. Oil
Co., 162 NLRB 1071, 1074 (1967).
Garduñio approached a group of drivers in February 2011
and asked one of them what his position on the Union was.
Contrary to the General Counsel’s contention, the fact that
Garduñio’s actions caused other employees to cover their union
insignia is irrelevant. As with all 8(a)(1) violations, the Board
does not look to the actual effect that the conduct had, but ra-
ther looks at the conduct from an objective standpoint. Hanes
Hosiery, Inc., 219 NLRB 338, 338 (1975). Analyzed objective-
ly, however, the circumstances reveal a coercive encounter.
Garduñio, the Company’s part owner and top operating official,
made the inquiry of an employee coupled with a statement to
Frank Hernandez that they needed to talk about the union situa-
tion. The totality of the circumstances establishes Garduñio
unlawfully interrogated an employee in violation of Section
8(a)(1).
5. Threat of discharge
The General Counsel contends that Garduñio unlawfully
threatened to discharge employees if they unionized. The
Company denied the allegation.
The expressing of any views does not constitute an unfair la-
bor practice if they contain no threat of reprisal, force or prom-
ise or benefit. 29 U.S.C. § 158(c); see Southern Frozen Foods,
Inc., 202 NLRB 753, 755 (1973) (finding no violation where
employer’s remarks were ambiguous in that they did not clearly
imply a threat that a union victory would automatically be fol-
lowed by a loss of employment). An employer may make a
prediction as to the precise effects he believes unionization will
have on his company without violating Section 8(a)(1). See
NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969) (hold-
ing that a prediction carefully phrased on objective fact that
conveys an employer’s belief as to demonstrably probable con-
sequences is not unlawful). Where the employer’s basis for
such predictions is not objective fact, however, predictions may
violate the Act. See Patsy Bee, Inc., 249 NLRB 976, 977
(1980) (finding violation where employer had no indication
from union that it would make demands which would cause
economic hardship, let alone plant closure; nor did he have
evidence that his customers might even pull their contracts).
Here, Garduñio’s statements to the effect that, if the employ-
ees unionized the Company would be forced to lay off drivers,
represented threats not made on the basis of objective fact. As
was the case in Patsy Bee, Garduñio had no indication that the
Union would necessarily drive up labor costs or that the CPS
would not contract with the Company. Accordingly, his predic-
tions, made on the basis of subjective beliefs, cannot be con-
strued as anything other than threats that employees would be
discharged if they unionized. Such threats constituted an 8(a)(1)
violation.
6. Prohibiting employees from speaking about
the accident reimbursement policy
The General Counsel contends that the Company unlawfully
prevented employees from discussing terms and conditions of
employment with one another when Garduñio told Carol Garcia
not to discuss their agreement concerning her liability for her
accident with anyone else. The Company did not address this
alleged violation in its brief.
An employer may not restrict its employees’ right to discuss
self-organizing with other employees unless the employer can
demonstrate that a restriction is necessary to maintain produc-
tion or discipline. NLRB v. Babcock & Wilcox Co., 351 U.S.
105, 113 (1956). Similarly, absent such a business justification,
an employer may not restrict employees in their discussions
concerning other concerted protected activity. See Lafayette
Park Hotel, 326 NLRB 824, 825–826 (1998) (rule was not
unlawful where there was a legitimate business justification for
the rule and it did not prohibit Sec. 7 activity). The Board
must, therefore, balance the proposed business reasons against
employees’ Section 7 rights. See Westside Community Mental
Health Center, 327 NLRB 661, 666 (1999) (employer’s busi-
ness reasons did not outweigh employees’ Sec. 7 rights where
the employer offered no evidence that its proffered reasons
were of valid concern).
The reason offered by the Company was, essentially, that it
did not want other employees to find out about the concessions
it was making because it might make them jealous. As Counsel
for the General Counsel notes in her brief, a similar business
justification was rejected by the Third Circuit in enforcing the
Board’s decision finding a rule prohibiting employee discussion
of wages. Jeannette Corp. v. NLRB, 532 F.2d 916, 919 (3d Cir.
1976). Moreover, the Company offered no evidence that this
was even a valid concern. If anything, employees concerned
about the accident reimbursement policy would have, in all
likelihood, been interested to learn such information for their
own benefit. The accident reimbursement policy was clearly a
term or condition of employment. Under the circumstances, the
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Company’s attempt to restrain Garcia in exercising her Section
7 rights lacks legal justification and, thus, constitutes an 8(a)(1)
violation.
7. Threat to close facility
The General Counsel contends that the Company violated
Section 8(a)(1) through Gabino’s statement to Frank Hernandez
threatening to close the facility and move the Company to a
different location in the event the employees unionized. The
Company denied this allegation.
Unsupported employer predictions that a plant shutdown will
follow a union victory are unlawfully coercive. Federated
Logistics & Operations., 340 NLRB 255, 256 (2003). As the
Company correctly pointed out in its brief, a prediction of plant
closure may be lawful if the employer can show that it is the
probable consequence of unionization for reasons beyond the
employer’s control. NLRB v. Gissel Packing Co., 395 U.S.
575, 618 (1969). Here, however, no evidence was presented to
show that Gabino’s statement constituted a prediction based on
probable consequences beyond the Company’s control. Rather,
this statement was an unsupported prediction aimed at intimi-
dating Hernandez and other employees in the exercise of their
Section 7 rights, and thus constitutes an 8(a)(1) violation.
8. Statements of futility
The General Counsel asserts that the Company violated Sec-
tion 8(a)(1) through Garduñio’s statement to Carol Garcia that
the Company would never agree to allow a labor organization
to represent its employees. The Company denied this allega-
tion but did not address it in its brief.
A statement to the effect that the Company will never agree
to union representation restrains employees and violates their
Section 7 rights because it conveys a message that it would be
futile for them to join or support a union. Rood Industries Inc.,
278 NLRB 160, 164 (1986); see Maxi City Deli, 282 NLRB
742, 745 (1987) (finding employer’s statement that there would
never be a union in his restaurant to be unlawful); Loby’s Cafe-
teria, 187 NLRB 420, 420 (1970) (finding employer’s state-
ment that he was not going to have a union to be unlawful be-
cause it indicated that support for a union is futile). Here, the
credible testimony established that statements by Garduñio to
Carol Garcia and by Gabino to Hernandez conveyed the Com-
pany’s position that it would never agree to let the Union repre-
sent its employees. Under the circumstances, their statements
of futility violated Section 8(a)(1) by restraining Garcia and
Hernandez in the exercise of their Section 7 rights.
B. Section 8(a)(3)
The amended complaint also alleges that the Company vio-
lated Section 8(a)(3) by discharging Garcia and Salgado be-
cause they engaged in protected concerted activity. Garcia was
allegedly discharged because she was engaged in union organ-
izing and complained about the Company forcing her to reim-
burse it for the costs of property damage resulting from a ve-
hicular accident during her employment; Salgado was allegedly
discharged for also engaging in union organizing and raising
the issue of compensation for performing charter services. The
Company denies the material allegations and contends that
Garcia was discharged for insubordination after she threatened
Henry Garduñio, while Salgado was discharged for theft of
company property.
Charges alleging 8(a)(3) violations are analyzed under the
Wright Line framework, which requires the General Counsel to
make a prima facie showing sufficient to support the inference
that protected conduct was a motivating factor in the employ-
er’s decision. 251 NLRB 1083, 1089 (1980). To meet this
burden, the General Counsel must establish that the employee
engaged in protected activity, the employer had knowledge of
the protected activity, and that the employer took adverse ac-
tion against the employee as a result of this protected activity.
American Gardens Management Co., 338 NLRB 644, 645
(2002). Once the General Counsel has proven these elements,
the burden shifts to the employer to demonstrate that he would
have taken the same action even in the absence of protected
conduct. Manno Electric, 321 NLRB 278, 281 (1996). If the
evidence establishes that the reasons given for the discharge are
pretextual, either in that they are false or not relied on, the em-
ployer has failed to show that it would have taken the same
action absent the protected conduct, and there is no need to
perform the second part of the Wright Line analysis. Golden
State Foods Corp., 340 NLRB 382, 385 (2003).
1. Carol Garcia
Carol Garcia engaged in protected concerted activity. She
was involved in the union organizing campaign and engaged in
other concerted activity by voicing her concerns amongst fel-
low employees about the Company’s accident reimbursement
policy. Moreover, Garduñio was aware of that activity. First,
Garcia told him in September that employees were not happy
about certain workplace issues. Second, she was among the
employees leaving the union meeting on December 9 when
Sara Martinez saw them and reported that to Garduñio.
The General Counsel also met her burden in establishing that
Garduñio terminated Carol Garcia because she engaged in pro-
tected activity. While there is no direct proof of discriminatory
motivation, such motivation can be inferred from circumstantial
evidence based on the record as a whole. Embassy Vacation
Resorts, 340 NLRB 846, 848 (2003). Factors supporting an
inference of unlawful motivation include the timing of the ter-
mination and departures from past practices. Id. Here, the
timing is sufficiently suspicious to support the General Coun-
sel’s contention. Garcia allegedly threatened Garduñio in late
September. Yet, it was not until nearly 3 months later that
Garduñio actually fired her. Moreover, Garduñio fired Garcia
the day after Martinez saw Garcia leaving a restaurant with
union officials. His proffered explanation for waiting to fire
Garcia—that he did so after consultation in a CAPS meeting—
is contradicted by previous instances in which he immediately
discharged an employee for threatening him. Garduñio’s fail-
ure to discharge Garcia immediately after the threat seriously
diminished his credibility. See Soft Water Laundry, Inc., 143
NLRB 1283, 1294 (1963) (finding employer’s claim to not be
credible because he failed to discharge employee immediately
after alleged threat). Coupled with the antiunion animus ex-
pressed by Garduñio, it is clear that Carol Garcia was fired
because of her protected conduct.
835
LATINO EXPRESS, INC.

Having established a prima facie case, the burden shifted to
the Company to demonstrate that it would have discharged
Garcia even in the absence of her protected conduct. It did not.
Garduñio’s decision to terminate Garcia was not related to a
legitimate concern for his safety or his past practice. His reli-
ance on an incident 3 months earlier as a basis for Garcia’s
termination was clearly pretextual. As noted above, Garduñio
testified that he was influenced by external forces over the
course of 3 months before deciding to terminate Garcia. Ob-
serving his testimonial demeanor and involvement at counsel’s
table throughout the trial, as well as his past record of dealing
or not dealing with similar incidents, he did not strike me as
one taken to deep deliberation regarding personnel decisions.
All of these factors lead me to conclude that Garcia was dis-
charged because she engaged in protected concerted activity in
violation of Section 8(a)(3) and (1).
2. Pedro Salgado
The General Counsel contends that Pedro Salgado was dis-
charged for his protected concerted activity concerning his
union organizing efforts as well as his questioning of cash
payments for charter service work. The Company contends
that Salgado was not fired for his protected activity, but rather,
because he stole money from the Company.
Applying a Wright Line analysis, the General Counsel has
clearly demonstrated that Salgado engaged in protected activi-
ty, through both his unionizing efforts, as well as his clear ques-
tioning of company policy regarding charter compensation at a
drivers’ meeting. It is also clear that the Company knew of his
protected activity. Gabino’s conversation with Salgado con-
cerning the effects of unionizing revealed company knowledge
of Salgado’s union-related activities.
The General Counsel has also met its burden of proving that
Salgado’s protected activity was a motivating factor in the
Company’s decision. As explained above, the Company’s
antiunion animus was evident from its efforts to restrain its
employees in their union organizing campaign. See Dandridge
Textile, Inc., 279 NLRB 89, 98 (1986) (taking into account the
Company’s 8(a)(1) violations in establishing animus in an
8(a)(3) charge). Moreover, Salgado and only one other driver
received the most severe form of discipline—termination—
while the other 10 drivers who also received cash compensation
for their charter services were simply required to reimburse the
Company and placed on probation or received no discipline at
all. I also find that Garduñio failed to fully investigate the mat-
ter as it specifically applied to Salgado’s involvement in receiv-
ing cash for charter services. He approached Salgado after the
drivers meeting and asked him about the cash payments. Sal-
gado told him to speak to the charter director. Garduñio provid-
ed no explanation as to what his alleged investigation before or
after that encounter revealed with respect to Salgado’s question
as to why drivers were being paid cash for providing charter
services. See Socied Espanola de Auxillio Mutuo y Benefi-
cencia de P.R., 342 NLRB 458, 459 (2004) (emphasizing that
one factor to consider in an unlawful discharge claim is wheth-
er the employer conducted a full investigation into the conduct
that allegedly brought about the discharge). This was a classic
instance of disparate treatment attributable to Salgado’s pro-
tected concerted activity. See Embassy Vacation, 340 NLRB,
supra at 348 (holding that one factor to consider is the disparate
treatment of employees with similar offenses). All of these
factors demonstrate that Salgado’s protected activity was a
motivating factor in the Company’s decision.
Having established a prima facie case, the Company failed to
meet its burden of demonstrating that it would have discharged
Salgado even in the absence of his protected conduct. It did
not. The General Counsel proved that Garduñio’s reason of-
fered for Salgado’s termination—that he stole money from the
Company—was pretextual. It is clear that Del Toro stole mon-
ey from the Company. However, assuming arguendo that a
driver receiving cash compensation from the Company’s char-
ter services director violated some unstated company policy or
procedure, Garduñio failed to explain how Salgado, or any
other drivers for that matter, stole money. Indeed, Salgado
raised the issue of cash compensation for charter services at the
company meeting. The uncontroverted facts also revealed that
Salgado was underpaid for his share of the charter at issue.
Moreover, given the vastly disparate treatment afforded Salga-
do compared to the other drivers involved, it is quite evident
that he would not have been discharged in the absence of his
protected concerted conduct. Under the circumstances, Salga-
do’s discharge violated Section 8(a)(3) and (1). Wells, Inc., 68
NLRB 545, 547 (1946).
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. By discharging Carol Garcia and Pedro Salgado because
they engaged in protected concerted activity by supporting the
Union and complaining about terms and conditions of employ-
ment, the Company has been discriminating against employees
in violation of Section 8(a)(3) and (1) of the Act.
3. By preventing employees from discussing terms and con-
ditions of employment with one another, creating an impression
that employees’ union organizing activities were under surveil-
lance, promising improved benefits to, and soliciting grievances
from, employees during a union organizing campaign, interro-
gating an employee by asking him whether he supported the
Union, threatening to discharge employees if they unionized,
threatening to close the facility and move the Company to a
different location in the event the employees unionized, and
warning employees that it would be futile to form a union be-
cause the Company would never agree to allow a labor organi-
zation to represent them, the Company violated Section 8(a)(1).
4. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, we shall order it to cease and desist and to
take certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that the Company violated Section 8(a)(3) and
(1) of the Act by discriminatorily discharging Carol Garcia and
Pedro Salgado, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits. Backpay
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

shall be computed from date of discharge to date of proper offer
of reinstatement in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
Further, the Company shall be required to submit the appropri-
ate documentation to the Social Security Administration so that
when backpay is paid, it will be allocated to the appropriate
calendar quarters. The Company shall also be required to re-
move from its files any and all references to the unlawful dis-
charges of Carol Garcia and Pedro Salgado. The Company
shall notify them in writing that this has been done and that the
unlawful references will not be used against them in any way.
[Recommended Order omitted from publication.]