NeilMed Products, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 11, 2011

20-CA-035363 (N.L.R.B. Jul. 11, 2011)

JD(SF)–20–11
Santa Rosa, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEILMED PRODUCTS, INC.
and Case 20-CA-35363
TEAMSTERS LOCAL 624, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHANGE
TO WIN COALITION
Carmen León, Esq., for the Acting General Counsel.
Diane Aqui, Esq., of Santa Rosa, California, and
Karen Tynan, Esq., of Healdsburg, California,
for Respondent.
Teague Pryde Paterson, Esq. (Beeson, Tayer &
Bodine), of San Francisco, California, for the
Charging Party.
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge. This case was heard in Santa Rosa,
California on April 20 and 21, 2011, pursuant to the amended complaint and notice of hearing
(the complaint) issued March 31, 2011, alleging that NeilMed Products, Inc. (Respondent)
violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act)1 by denying
Teamsters Local 624, International Brotherhood of Teamsters, Change to Win Coalition (the
Union) Business Agent Elmer Cisneros (Cisneros) access to its facility.2 Respondent defends
this allegation arguing that its duty to provide a safe workplace requires that Cisneros be denied
access to its facility.
All parties were provided full opportunity to appear, to introduce relevant evidence, to
examine and cross examine witnesses, and to argue the merits of their respective positions. On

1 29 U.S.C. Sec.158(a)(1) and (5).
2 The underlying unfair labor practice charge was filed by the Union on December 22, 2010.
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the entire record, including my observation of the demeanor of the witnesses,3 and after
considering the briefs filed by counsels for the General Counsel and the Respondent, I make
the following findings of fact and conclusions of law.
Findings of Fact
Respondent is an Employer Engaged in Commerce within the Meaning of Section 2(2), (6), and
(7) of the Act.
Respondent is a corporation engaged in the manufacture and sale of pharmaceuticals.
During calendar year 2010, Respondent derived gross revenues in excess of $500,000 and
purchased goods valued in excess of $5000 which originated from points outside the state of
California. Respondent admits and I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.4
The Union is a labor organization within the meaning of Section 2(5) of the Act.
Respondent admits and I find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.5
Pursuant to a NLRB conducted secret-ballot election, the Union was certified on September 1,
2009.
The Union was certified as the exclusive collective-bargaining representative of
employees on September 1, 2009,6 in the following appropriate unit:
All full-time and regular part-time warehouse, production and driver employees
including machine operators, operators, assemblers, material movers, mail
marketing helpers, shippers, and receivers employed by the Employer at its
facility located at 601 Aviation Blvd, Santa Rosa, California; excluding all other
employees, including quality control employees, office clerical employees,
confidential employees, managers, guards, and supervisors as defined in the
Act.
At all material times, based on Section 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of unit employees.
Respondent admits and I find that based on Section 9(a) of the Act, the Union has been
the exclusive collective-bargaining representative of unit employees at all times material herein.

3 Credibility resolutions have been made based upon a review of the entire record and all
exhibits in this proceeding. Witness demeanor and inherent probability of the testimony have
been utilized to assess credibility. Testimony contrary to my findings has been discredited on
some occasions because it was in conflict with credited testimony or documents or because it
was inherently incredible and unworthy of belief.
4 29. U.S.C. Sec. 152(2), (6), and (7).
5 29 U.S.C. Sec.152(5)
6 20–RC–18262
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After 22–25 bargaining sessions, the parties reached agreement on a first contract on
November 19, 2010.7
The parties participated in 22–25 bargaining sessions, and all parties stipulate that the
last six bargaining sessions were held as follows: July 19, 28, August 3, October 8,
November 12, and 19. The parties reached agreement at the last session on November 19. The
term of this agreement is from November 19, 2010, through November 18, 2011. None of these
bargaining sessions were held at Respondent’s premises.
From May 20 to November 19 the Union engaged in picketing at Respondent’s premises.
Beginning on May 20 and lasting until November 19, the Union engaged in picketing at
Respondent's premises along Aviation Boulevard, a two-way street running east/west. Picketing
typically began at 4:45 a.m. In the early months of picketing, 15-20 picketers were present in the
morning at this time. Arriving cars lined up at the gate to wait for a supervisor to arrive. Once the
supervisor arrived, the guard unlocked the gate and the cars drove across the picket line.
Cisneros served as picket captain throughout the strike.
Besides patrolling along the entrance to the facility, the picketers also yelled such things
as “suck ups,” “sell outs,” “we are picketing for justice,” “barberos,” “banditos,”8 and “defienden
sus derechos”9 at employees crossing the picket lines. In turn, employees crossing the picket
line yelled that the picketers were idiots, cocksuckers, lazy, and should get back to work.
Obscenities were exchanged.
Maria Chavez claimed that Cisneros and other picketers walked in front of her car every
day, sometimes forcing her to stop. She testified that Cisneros said, “If I wasn’t with them,
something bad would happen to me.” Chavez agreed that all of the picketers yelled at her but
she felt Cisneros was the worst. He yelled things like “scab, banditos, rat, and thief.” Chavez felt
these words were directed specifically to her although she was in a line of about 100 cars.
Chavez said that sometimes Cisneros hit her car with the picket sign. Chavez testified that she
did not have her car repaired due to any impact from the picket sign.
Although there is plenty of corroboration for Chavez’ testimony regarding the name
calling, as I have found above, this occurred on both sides of the dispute. I find Chavez’
testimony unbelievable in respect to her “belief” that Cisneros was yelling specifically at her. I do
not find that Cisneros yelled specifically at Chavez. Rather, I find that Cisneros yelled at many of
the employees crossing the picket line. I credit Cisneros testimony that he did not hit Chavez
vehicle with his picket sign. As to the alleged statement, “If I wasn’t with them, something bad
would happen to me,” I discredit it as too long a sentence to hear while passing picketers and, in
any event, I find it too vague to form a conclusion as to the nature of the alleged statement.
Another employee testified that Cisneros yelled at her, “You have gone on your knees to
the doctor [the owner] and [she] was a sell-out.” A third employee testified that Cisneros called
her a “sell-out” and a “kiss-ass.” One time when she crossed the picket line, Cisneros elbowed
her driver’s side-view mirror. Another time, he stood directly in front of her car. Another witness
testified that Cisneros tried to jump in front of her truck on several occasions. There was another

7 Unless otherwise referenced, all further dates are in 2010.
8 Cisneros testified that this was the closest Spanish word for the term “scab.”
9 Cisneros testified this would mean in English, “Come defend your rights.”
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report of a female picketer who blocked ingress on a single occasion.
I find that during the picketing, name calling, and obscenities were exchanged on both
sides. I find that the picketers, including Cisneros, sometimes impeded or obstructed ingress to
the facility. I have specifically discredited testimony that Cisneros blocked specific individual’s
ingress everyday. I further have specifically discredited testimony that Cisneros threatened
employee Chavez.
On June 16 employee/union steward Elmer Cisneros was suspended due to involvement in a
picket line incident in which he broke the windshield of a Dodge Caravan as it was driven across
the picket line by Supervisor Jonathan Herdita.
There is no dispute that employee Elmer Cisneros was suspended by Respondent on
June 16 due a picket line incident of that same date. At approximately 9 a.m., about 10
picketers were patrolling at the Aviation Boulevard entry to Respondent’s premises. According
to Cisneros,
I -- we were picketing as usual. And my then supervisor, Jonathan Herdita, drove
his van into the picketers. And I fell on his hood and I held onto his hood. And he
drove for about 20, 30 feet and finally came to a stop.
A statement written by Cisneros and signed by Herdita and Cisneros on June 16, states
in relevant part, “I Elmer [Cisneros] will pay for the windshield on the Dodge Caravan . . .
because I accidentally broke it.” Ultimately Cisneros did not reimburse Herdita.10 Cisneros
agreed that he signed this document because a Sonoma County Sheriff’s deputy gave him the
option of paying for the windshield or being arrested.
Leticia Alfaro videotaped various incidents at the picket line. On June 16, she videotaped
10 or 15 minutes of various picket line activities and then stopped the tape and put her camera
down. About 10 or 15 minutes later, when she saw Mr. Herdita approaching, she turned her
camera on again. She explained that the picketers routinely observed Mr. Herdita driving at a
fast rate of speed and she usually taped him. Alfaro testified that she had not deleted anything
from the videotape segment that involved Mr. Herdita on June 16. I credit Alfaro’s testimony in
this regard. Alfaro impressed me as a thoughtful, responsible witness who took care in
ascertaining the meaning of questions before providing her answer.
Although the videotape segment was admitted in evidence, Respondent renews its
objection to the exhibit because it is not the complete document. In other words, Respondent
contends that the Acting General Counsel must also provide the 10 to 15 minute segment prior
to the incident at issue herein which was taped about 10 to 15 minutes before Mr. Herdita’s
arrival. I adhere to my ruling at trial. There is no indication that the parties may be misled by an

10 Cisneros was served with a temporary restraining order filed on Herdita's behalf by
Respondent after he agreed to reimburse Herdita for the damaged windshield.
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item taken out of context. I find there is no logical connection between the events which
occurred after Mr. Herdita’s arrival and 10–15 minutes before his arrival.11
Respondent also requests that I not assign significant weight to the videotape based
upon its lack of completeness. According to the videotape, Herdita arrived at the picket line at
8:39 a.m. In my view, a segment of video which occurred roughly 10–15 minutes prior to
Herdita’s arrival has absolutely nothing to do with the matter at issue herein. On that basis, I
admitted the videotape in evidence.
Cisneros fell across the hood of Herdita’s moving vehicle. When the vehicle continued to move
forward, Cisneros hit the windshield of Herdita’s vehicle twice. There is no dispute that the
windshield was broken.
I credit the details shown in the videotape to the same degree I credit Cisneros’
testimony. Cisneros’ testimony is similar to what the videotape illustrates. There is no other
testimony rebutting either the videotape or Cisneros’ testimony. Accordingly, I find, as Cisneros
testified, that Cisnero did indeed fall onto the hood of the van as the van drove into the
picketers. It is not possible to estimate the distance that the vehicle drove while Cisneros was
on the hood. It could have been 20–30 feet as Cisneros testified. It could have been a lesser
distance. However, the van did proceed forward while Cisneros was lying on the hood.
Thus, when the videotape begins, the van driven by Herdita is proceeding east on
Aviation Boulevard. Cisneros is out of view from the driver’s perspective because two other
picketers are in front of him. The vehicle approaches the left side of the driveway entrance to
the facility but ingress is blocked by two picketers.12 Cisneros may be seen walking across the
screen from right to left at this point but he is not one of the two picketers who initially blocked
ingress. As the van continues to turn left, the vehicle’s driver’s side front bumper nears the two
picketers who remain stationary. Cisneros turns and approaches the passenger side front
bumper at this point. As the vehicle continues to move forward, the two unidentified picketers
shift slightly backwards, away from the vehicle, while Cisneros walks toward the center of the
front bumper. At this point, Cisneros appears to be quite close to the front bumper and the two
unidentified picketers are now behind him. One of the two unidentified picketers moves away
from the area and Cisneros looks down at the vehicle’s bumper.
At this point, the camera veers to the right and Cisneros is visible only at the left edge of
the picture. It is not possible to tell whether the vehicle is moving at this point. The camera then
pans back to the left but the vehicle and Cisneros are not visible because an unidentified man
holding a picket sign crosses the field of vision. By the time this man exits, Cisneros’ legs can
be seen just behind the remaining picketer who was blocking ingress when the van initially
approached. Based on the position of his legs and the movement of the wheels of the car, it
appears that the car moves forward at this point and that Cisneros falls toward the vehicle. The
vehicle continues to move forward and Cisneros’ feet leave the ground. His picket sign falls to

11 Respondent claims that the original video tape may contain evidence of provocation of
Cisneros “or what actions or activities occurred briefly before Mr. Cisneros hit Mr. Herdita’s
windshield.” It is unclear to me that any potential provocation of Cisneros would be relevant
herein. If Respondent meant to claim that Herdita might have been provoked, I note that he did
not testify in this proceeding and I infer from his absence that he would not testify that he had
been provoked.
12 The record indicates that other drivers entered on the left side of the drive. The record
does not indicate whether the right side of the drive was free of picketers.
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the ground. It does not appear that Cisneros jumped on the vehicle although once on the
vehicle, he jerked his body forward to grasp the top rim of the hood by the windshield. The
vehicle continues to move forward with Cisneros on the hood of the vehicle. After the vehicle
has moved forward about 10 feet, Cisneros hits the windshield with his right hand. The car
continues forward and Cisneros hits the windshield again with his right hand. The vehicle then
stops. Cisneros slides his feet to the ground and goes around to the driver’s side of the vehicle.
He has his arms raised out to the side of his body with his hands open wide. He says, “What the
hell you doing, man?” The driver emerges and also raises his arms with his hands open wide.
The driver walks away and gets out his cell phone. Cisneros also gets out his cell phone and
both appear to be making calls. According to the camera clock, these events took place from
8:39 to 8:40 a.m. It is not possible to estimate the speed of the vehicle nor is it possible to
accurately determine the distance the vehicle traveled.
Based upon the record as a whole, I find that Herdita provoked the incident by
continuing to move his vehicle forward when picketers were blocking his ingress and especially
once a picketer became affixed to the hood of his vehicle. I find that Cisneros did not jump on
the vehicle but that he did purposefully and recklessly move into an area of danger as the
vehicle approached. Once the vehicle came into contact with his legs, Cisneros fell across the
hood and then held onto the top rim of the hood. I note that no pack of wild dogs, no
approaching train, no assault at gunpoint prevented Herdita from stopping his vehicle when
picketers blocked his ingress or when Cisneros fell onto the hood of his car. Moreover,
Respondent cites no law or decision which allows a motorist to proceed at will directly into the
body of a pedestrian. I, too, am unaware of such law or decision. Accordingly, I find that Herdita
provoked Cisneros to hit the windshield when Herdita continued moving forward while a
pedestrian was directly in his path and after the pedestrian fell onto his hood.
I reject Respondent’s invitation to make findings of fact based upon three redacted13
police reports. These reports were admitted as public records. None of the police officers were
called as witnesses. Thus, a redacted police report dated June 16 sets out conflicting
statements from two callers. According to the report, the first caller, assumably Cisneros,
reported that his supervisor ran into him with his vehicle and the caller “accidentally hit the
windshield with his hand and broke it.” The second caller, assumably Herdita, stated that an
employee blocked entry to the facility, jumped onto the hood of his car and smashed the
windshield with his hand. I can draw no conclusions based upon this report except that both
Cisneros and Herdita apparently called the police. This is consistent with Cisneros’ testimony.
However, the report contains two statements of the facts which are diametrically opposed and
does not afford a basis for finding that one or the other of the statements is true.
A second redacted police report indicates that an unidentified individual reported to
police that “A MINIVAN CAME THROUGH THE PICKET LINE AND BUMPED A PROTESTER
SHO (sic) JUMPED ON THE HOOD OF THE VEH. NO INJURIES.” The officer reported that he
viewed the video “WHERE ELMER JUMPED ON THE CAR,,A (sic) CRACKED THE
WINDSHIELD WITH HIS RGIHT (sic) FIST.” Denoting the officer’s use of the word “jump” about
the video as “a factual determination, not an opinion,” Respondent asserts that this report
proves that Cisneros jumped on the car. Because the video which the officer relied upon is
before me, I have made my own factual findings with respect to the video.
Respondent also notes another redacted police report dated May 20, in which an
unidentified individual reported that Cisneros walked into the front of her vehicle, yelled at her,

13 The name in the “Victim or Caller” portion of the report has been redacted.
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and then came to her window claiming that she had harassed him by hitting him. The police
report continues that the unidentified reporting individual then reported that Cisneros pointed a
video camera at her. Finally, the police report notes that the reporting individual stated that her
purpose in making the report was to document the incident in case Cisneros filed a report
against her. Upon being shown this report, Cisneros denied that he jumped in front of a vehicle,
faked an injury, put a video camera in the driver’s face, and threatened to call the police. The
individual who reported this matter to police was not called as a witness. Respondent argues
that the police report must be accepted as true citing specifically to present sense impression
and excited utterance. Under the circumstances, I find the statements in the police report
unreliable because they were made in anticipation of litigation. Moreover, the individual that
made this report to the police was not called as a witness. Finally, I credit Cisneros denial of the
incident.
Allegations of cell phone pictures taken outside the Hearing Room.
After a morning break on the first day of hearing, Respondent’s counsel reported what she
characterized as a potential breach of the sequestration rule as follows:
. . . some of my witnesses were fearful of Mr. Cisneros, which is the point of my
sequestration motion. When these ladies arrived, Mr. Cisneros took out his cell
phone camera and snapped photographs of them. They have now been
intimidated and this is exactly what I was hoping to prevent by making my motion
[to sequester].
In response, I ruled that I found no breach of the sequestration rule. No further mention of this
situation was made throughout the remainder of the hearing nor was any witness asked about
this issue. Nevertheless, in its brief, Respondent argues,
Despite the ALJ’s refusal to entertain substantial testimony regarding
Mr. Cisneros’ photographing of witnesses at the hearing, the acts of taking the
photographs of Respondent’s witnesses (former co-workers of Mr. Cisneros who
were already fearful of him) had no legitimate purpose and were meant to
intimidate witnesses.
Respondent argues that “Cisneros’ actions were reprehensible and objectively seen as
an act of intimidation toward the witnesses.” This issue was not litigated before me and is not
encompassed within the pleadings. I make no finding regarding the statements of counsel about
any cell phone photographs.
By letter of August 2, Respondent terminated Cisneros’ employment.
Respondent’s letter of termination, dated August 2, states,
We have concluded our investigation of the recent incident wherein a
fellow employee’s windshield was smashed. We believe the evidence
overwhelmingly substantiates that you assaulted the employee and such conduct
is not permitted.
Please be advised that effective this date your employment at NeilMed is
terminated.
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Throughout his suspension and after his termination, Cisneros continued to act as picket
captain and continued as an elected member of the Union’s bargaining committee.
After his termination, Cisneros continued serving as picket captain at Respondent’s
premises. He also continued to serve on the Union’s bargaining committee after his
termination.14 As noted earlier, none of the bargaining sessions occurred on Respondent’s
premises.15 When the contract was finalized, Cisneros translated it from English to Spanish and
distributed 45 to 50 copies of the Spanish translation to employees by standing outside
Respondent’s premises on Aviation Boulevard. There were about 75 employees at that time. An
unfair labor practice charge filed by the Union alleging that Cisneros’ termination violated
Section 8(a)(1) and (3) of the Act was subsequently withdrawn. The lawfulness of Cisneros’
August 2 termination is not at issue herein.
On December 15 the Union informed Respondent of appointment of Cisneros as Business
Agent of the Union and notified Respondent of an imminent visit to Respondent’s premises by
Cisneros and Secretary/Treasurer of the Union Miranda.
Secretary/Treasurer of the Union, Ralph Miranda, informed Respondent by email on
December 15 that Cisneros had been named Business Agent for the Union and that Miranda
and Cisneros “will be visiting the facility this afternoon and tomorrow 12/16/2010 in the morning
shift.” In response, Respondent requested the purpose of the visit. Miranda responded that the
purpose was grievance investigation and membership.
On December 15, Respondent notified the Union telephonically that Cisneros would not be
permitted to access Respondent’s premises due to the June 16 picket line incident.
On December 15, while Miranda and Cisneros were outside Respondent’s facility in a
picnic area visiting with employees, Miranda received a call asking that he call Respondent’s
counsel. Miranda was informed that Respondent would not allow Cisneros on its property
because employees were fearful of him.16
On December 27, Cisneros was asked to leave a grievance meeting at Respondent’s facility.
On December 27, Cisneros and Miranda were escorted from the lobby of Respondent’s
facility by Antonio Madrid, Union job steward, in order to meet Carolyn Ryzanych, manager of
human resources, to discuss a grievance. Ryzanych approached them and stated, “the doctor
[Dr. Mehta, owner of Respondent] doesn’t want him [Cisneros] anywhere on the premises.”
Cisneros complied and left the premises.

14 After his termination, Cisneros attended five of the final six bargaining sessions.
15 Herdita was not a member of Respondent’s bargaining committee. As of September or
October, Herdita no longer worked for Respondent.
16 Respondent’s counsel also referenced a temporary restraining order against Cisneros.
However, this ground for exclusion of Cisneros from Respondent’s property was withdrawn.
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Conclusions of Law
The issue in this case is whether there is persuasive evidence that the presence of Cisneros
would create ill will and make good-faith bargaining impossible.
As the Board stated in Fitzsimmons Mfg. Co., 251 NLRB 375, 379 (1980), enfd. 670
F.2d 663 (6th Cir. 1982).
It is well established that each party to a collective-bargaining relationship
has both the right to select its representative for bargaining and negotiations and
the duty to deal with the chosen representative of the other party. However,
where the presence of a particular representative in negotiations makes
collective bargaining impossible or futile, a party's right to choose its
representative is limited, and the other party is relieved of its duty to deal with
that particular representative. The test, as stated in KDEN Broadcasting [225
NLRB 25] is whether there is "persuasive evidence that the presence of the
particular individual would create ill will and make good-faith bargaining
impossible." (footnote omitted)
Thus, the issue in the instant case is whether there is persuasive evidence that the presence of
Cisneros “would create ill will and make good-faith bargaining impossible.” Id.; see also Sahara
Datsun, 278 NLRB 1044, 1046 (1986).
Characterizing this as a case of first impression dealing with the balance between the
right of a Union to choose its representative versus the duty of an employer to provide a safe
workplace, Respondent contends that it cannot allow Cisneros in its facility because employees
fear him. I find this characterization unconvincing. The Board’s analysis, requiring persuasive
evidence of ill will and making good-faith bargaining impossible, subsumes the single issue of
workplace safety. Accordingly, my analysis will proceed pursuant to Board authority.
The record is devoid of any evidence that Cisneros’ presence at negotiations following the
windshield incident created ill will and made good-faith bargaining impossible.
While on the picket line, Cisneros broke a windshield by hitting it with his fist. He also
yelled at employees crossing the picket line and stood in front of some employees’ cars while
they were attempting to enter the facility. During this same period of time, Cisneros was
discharged but continued to serve on the Union’s negotiation committee. Cisneros was present
at 5 of the 6 meetings following the picket line incident. The parties reached agreement on
November 19, 2010. Respondent did not attempt to exclude Cisneros from the negotiation
process. There is no evidence that Cisneros’ presence during negotiations was a disruptive
influence, created any ill will, or made good-faith bargaining impossible. Thus, I conclude as a
matter of law that Cisneros presence at the bargaining table from July through November 2010
did not create ill will and make good-faith bargaining impossible.
On the record as a whole, I find there is not persuasive evidence that Cisneros’ presence at the
facility as a Union business agent would create ill will and make good-faith bargaining
impossible.
Cisneros hit the windshield of a supervisor’s vehicle twice when the vehicle drove into
Cisneros while he was picketing. Although I found that Cisneros acted recklessly in approaching
the vehicle and I do not condone his actions, I found further that Supervisor Herdita was at fault
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when he continued to drive his vehicle into Cisneros’ body, causing Cisneros to fall onto the
hood of the vehicle. I found that Cisneros hit the windshield with his fist due to the provocation
of the vehicle continuing to move forward while he was lying on the vehicle hood. The
windshield cracked as a result of Cisneros’ impact on it. I have further found that Cisneros and
other picketers restricted ingress to the facility on some occasions while they were picketing.
Finally, I have found that Cisneros and other picketers yelled at employees who crossed the
picket line and that these employees yelled back at them. Both sides exchanged obscenities
and polarized comments about the act of striking and/or the act of crossing a picket line.
These actions on the part of Cisneros do not constitute persuasive evidence that
Cisneros presence at the facility to administer the contract and to negotiate would create ill will
and make good-faith bargaining impossible. As I have previously noted, Cisneros’ presence did
not preclude reaching a first contract. Not only were Cisneros’ actions on June 16 provoked, but
I also note that they did not involve a member of the negotiating team or any current member of
management. Finally, although Respondent presented evidence that some of its employees
were frightened by Cisneros, I note that none of these employees are involved in negotiation. As
to individuals involved in bargaining, the record is devoid of any evidence that these individuals
observed Cisneros on the picket line or specifically on June 16.
In finding that there is not persuasive evidence that Cisneros’ presence would create ill
will and make good-faith bargaining impossible, I rely by analogy on Claremont Resort and Spa,
344 NLRB 832 (2005), in which a massage therapist attempted to enter a manager’s office
during an employee meeting with the manager. The massage therapist knew that she was not
welcome at the meeting. As the massage therapist approached a security guard, their shoulders
collided. Neither was injured nor lost their balance. The massage therapist used profanity during
the incident and refused to follow directives not to enter the office. Following her discharge, the
massage therapist became a full-time union organizer and representative. A three-member
panel of the Board (Chairman Battista and Members Liebman and Schaumber) held that the
employer violated the Act by refusing to deal with the union representative. See also, Long
Island Jewish Hillside Medical Center, 296 NLRB 51, 71–72 (1989).
I find King Soopers, Inc., 338 NLRB 269 (2002), distinguishable. In that case, union
steward Gonzales requested leave to celebrate his 50th birthday and thereafter confronted his
supervisor when he was nevertheless scheduled to work on that date. Gonzales threw his meat
hook over his shoulder, narrowly missing a fellow employee. He also threw a 40-pound piece of
meat into a saw, breaking the blade, and he threw his knife into a box. Then he threatened his
supervisor and refused to leave the store at the store manager’s order. He was discharged for
this behavior. Four years later, Gonzales was assigned as a business representative and visited
several stores, including the store from which he was discharged, in order to enforce the
collective-bargaining agreements. Although no problems occurred on these visits, the employer
thereafter refused to permit Gonzales into its stores due to his “violent and threatening” conduct
4 years earlier.
A three-member panel of the Board (Members Cowen and Bartlett; then Member, now
Chairman Liebman dissenting) held that in light of Gonzales’ egregious misconduct, the
employer “might reasonably be preoccupied with the legitimate concern that [Gonzales] would
react violently if his position did not prevail.” The majority held that such preoccupation
undermines good-faith collective bargaining. Contrary to Gonzales’ actions, Cisneros’ action in
hitting the windshield was defensive, provoked by his supervisor’s failure to stop moving his
vehicle forward once Cisneros fell onto the vehicle. Moreover, Cisneros’ action did not endanger
other employees or members of management.
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Further, I find Fitzsimons Mfg. Co., supra, 251 NLRB at 379, distinguishable. In
Fitzsimmons, an international service representative of the union threatened to punch the
company personnel director in the mouth and “knock him on his ass” if the personnel director
referenced a confidential settlement agreement at bargaining. As the bargaining committee
including employee representatives returned, the personnel director said, “I have one comment
to make about . . . .” at which point the union representative reached across the desk, grabbed
the personnel director by his tie, and pulled upwards. The personnel director came to his feet
and the two were separated. The union representative challenged the personnel director to
“come outside to the parking lot.” The challenge was declined. Thereafter, the employer
requested that the union representative be removed. A three-member panel of the Board
(Members Jenkins and Penello; Member Truesdale dissenting) held that the union
representative’s actions were sufficiently egregious to make bargaining impossible. Because
Cisneros’ actions took place on a picket line, because they were defensive, and because they
were not directed toward the substance of bargaining proposals, I find Fitzsimmons
distinguishable.
In both King Soopers and Fitzsimmons, the Board found unprovoked violent behavior so
egregious that it created ill will and made good-faith bargaining impossible. However, in the
instant case, I have found that Cisneros’ behavior was provoked by Herdita, who continued to
move forward after Cisneros fell on the hood of the vehicle. I do not find that Cisneros’ hitting
the windshield was a violent action but rather I find it was a defensive act taken in order to call
the driver’s attention to his perilous position on the hood of the car and to obtain a halting of the
car from moving forward. Under these circumstances and noting in particular that Cisneros
continued to effectively serve on the negotiation committee following the incident, that the
negotiating committee agreed upon an initial contract, and that Cisneros’ Supervisor Herdita is
no longer employed with Respondent, I find that there is not persuasive evidence that Cisneros
presence created ill will or made good-faith bargaining impossible. Thus, by refusing Cisneros
access to the facility, Respondent engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and (5) of the Act and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent violated Section 8(a)(1) and (5) of the Act by failing to
recognize or deal with Elmer Cisneros as a Business Agent for unit employees and by denying
him access to the facility in order to perform his collective-bargaining duties, I recommend that
Respondent be ordered to cease and desist and to affirmatively recognize and deal with
Cisneros as a business agent for unit employees.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended17
ORDER
Respondent, NeilMed Products, Inc., Santa Rosa, California, its officers, agents,
successors, and assigns, shall cease and desist from failing and refusing to recognize or deal
with Elmer Cisneros as a Business Agent for unit employees and denying him access to the

17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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facility in order to perform his collective-bargaining duties and in any like or related manner,
interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
Respondent shall take the following affirmative action:
(a) Recognize Cisneros as a Business Agent for the bargaining unit employees and allow
him access to the facility to perform his collective-bargaining duties;
(b) Notify the Union in writing, within 10 days of this decision and that it no longer has any
objection to dealing with Cisneros and that it will do so on request;
(c) Within 14 days after service by the Region, post at its facility in Santa Rosa, California,
copies of the attached notice marked “Appendix”18 in both English and Spanish. Copies of
the notice, on forms provided by the Regional Director for Region 20, after being signed by
the Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where notices
to employees are customarily posted. In addition to physical posting of paper notices, the
notices shall be distributed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since December 7, 2010.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps
that the Respondent has taken to comply.
Dated, Washington, D.C. July 11, 2011

Mary Miller Cracraft
Administrative Law Judge

18 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and
obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We give you the following assurances:
WE WILL NOT fail or refuse to recognize or deal with Elmer Cisneros as a Business Agent for Teamsters Local 624,
International Brotherhood of Teamsters, Change to Win Coalition for our bargaining unit employees and WE WILL
NOT deny him access to the facility in order to perform his collective-bargaining duties.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in forming, joining, or assisting a
union, choosing a representative to bargain on your behalf, or acting together with other employees for your benefit
and protection.
WE WILL recognize and deal with Elmer Cisneros as a Union Business Agent for our unit employees and we will
grant him access to the facility in order to perform his collective-bargaining duties and WE WILL notify the Union, in
writing, of these facts.
NEILMED PRODUCTS, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.
415-356-5130.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, 415-356-5139.