San Luis Trucking, Inc.

National Labor Relations Board - Board Decisions

Feb 29, 2008

352 N.L.R.B. 211 (N.L.R.B. 2008)

SAN LUIS TRUCKING, INC.
352 NLRB No. 34
211
San Luis Trucking, Inc. and its alter ego Servicios
Especializados Del Colorado, S.A. De C.V., and
Factor Sales, Inc., all a Single Employer and/or
Joint Employers and United Food and Commer-
cial Workers Union, Local 99. Cases 28–CA–
20387, 28–CA–20469, 28–CA–20559, 28–CA–
20643, and 28–CA–20743
February 29, 2008
DECISION AND ORDER
BY MEMBERS LIEBMAN AND SCHAUMBER
On May 8, 2007, Administrative Law Judge Joseph
Gontram issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief and a limited cross-
exception, and the Respondent filed a reply.1
The National Labor Relations Board2 has considered
the decision and the record in light of the exceptions and
briefs, and has decided to affirm the judge’s rulings,
findings,3 and conclusions as modified4 and to adopt the
recommended Order.5

1 The General Counsel contends that the Respondent’s exceptions
and supporting brief do not comply with the Board’s Rules and Regula-
tions and, thus, moves that these documents be stricken from the re-
cord. We have reviewed the Respondent’s submissions, and we find
that they substantially comply with the Board’s Rules and Regulations.
We therefore deny the General Counsel’s motion.
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Members Liebman and Schaumber constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In addition, the Respondent alleges
that the judge’s rulings, findings, and conclusions demonstrate bias and
prejudice. On careful examination of the judge’s decision and the
entire record, we are satisfied that the Respondent’s contentions are
without merit.
Although we agree with the judge that the Respondent violated both
Sec. 8(a)(1) and (5) by unilaterally prohibiting drivers from talking to
mechanics, we need not rely on his finding that the prohibition was
imposed for the purpose of restricting employees’ Sec. 7 activity.
4 The judge found that Respondent Factor Sales violated Sec. 8(a)(5)
by unilaterally transferring a majority of its trucking work from San
Luis Trucking (SLT), its wholly owned subsidiary, to Unified Western
Grocers. The judge further found that the Respondent violated Sec.
8(a)(5) by constructively discharging SLT employees Quezada, Gonza-
les, and Sandoval, finding that the employees quit because their hours
and pay were significantly reduced following the loss of bargaining unit
work to Unified. We find that the 8(a)(5) finding related to the con-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Factor Sales, Inc. and San
Luis Trucking, Inc., San Luis, Arizona, and Servicios
Especializados Del Colorado, S.A. De C.V., their offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order.
Johannes Lauterborn, Esq. and Mara-Louise Anzalone, Esq.,
for the General Counsel.
Gerald Morales, Esq., Lisa Coulter, Esq., and Scott Schwartz,
Esq. (Snell & Wilmer), of Phoenix, Arizona, for San Luis
Trucking, Inc. and Factor Sales, Inc.
DECISION
STATEMENT OF THE CASE
JOSEPH GONTRAM, Administrative Law Judge. This case was
tried in San Luis and Somerton, Arizona, on November 7–9,
December 5–8, 2006, and January 9 and 10, 2007. United Food
and Commercial Workers Union, Local 99 (the Union or the
Charging Party) filed the charges and amended charges be-
tween July 22, 2005, and April 2, 2006. The consolidated com-
plaint was issued July 31, 2006, and was amended September
19, 2006,1 and at the start of the hearing (the complaint).
The events at issue in this case occurred after the Union won
an election, on January 29, 2005, to represent the employees of
San Luis Trucking, Inc. (San Luis Trucking or SLT) for collec-
tive-bargaining purposes. An election was initially held in July
2004. However, that election was set aside because of SLT’s
unlawful conduct in connection with the election.
The complaint alleges that SLT is the alter ego of Servicios
Especializados Del Colorado, S.A. De C.V. (SEC) and Factor
Sales, Inc. (Factor Sales), and that these three entities (the Re-
spondents) are a single employer and are joint employers. The
complaint alleges that the Respondents unlawfully interrogated
their employees and prohibited their employee drivers from
speaking to their employee mechanics, in violation of Section
8(a)(1) of the National Labor Relations Act (the Act). The
complaint alleges that since approximately March 2005, and
without notifying or bargaining with the Union, the Respon-
dents have subcontracted bargaining unit work to third-party

structive discharge is duplicative of the 8(a)(5) finding related to the
work transfer, and we therefore find it unnecessary to pass on the con-
structive-discharge 8(a)(5) violation. The General Counsel filed a
limited cross-exception to the judge’s apparent inadvertent failure to
include and remedy the constructive-discharge 8(a)(5) violation in the
conclusions of law, order, and notice. In light of our finding above,
there is no need to modify the judge’s conclusions of law, order, and
notice, and we thus deny the General Counsel’s cross-exception.
5 At the compliance stage of the proceedings, the Respondent may
introduce evidence that was not available prior to the unfair labor prac-
tice hearing, if any, to demonstrate that reopening SLT and restoring
the business transferred to Unified Western Grocers on July 1, 2005,
would be unduly burdensome. St. Vincent Medical Center, 349 NLRB
365, 368 fn. 5 (2007); Lear Siegler, Inc., 295 NLRB 857, 861–862
(1989).
1 All dates are in 2006, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD212
enterprises, have imposed more onerous and rigorous terms and
conditions of employment on their employees, and have re-
duced the work hours of specified employees, resulting in the
discharge of the employees, in violation of Section 8(a)(5), (3),
and (1) of the Act. The complaint alleges that the Respondents,
without notifying or bargaining with the Union, closed SLT
because SLT’s employees had elected to be represented by the
Union, and to discourage other employees of the Respondents
from seeking union representation, in violation of Section
8(a)(5), (3), and (1) of the Act. The complaint also alleges that
the Respondents have refused to provide the Union with re-
quested information relating to the closure of SLT and the al-
leged financial reason for the closure of SLT.
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 Respondents, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
SLT, a corporation, is a trucking company that transports
goods in interstate commerce, and maintains an office and fa-
cility in San Luis, Arizona. In conducting its business, SLT
performed services valued in excess of $50,000 in States other
than the State of Arizona during the year immediately preced-
ing the filing of the complaint. Factor Sales, Inc., a corporation,
is engaged in the retail sale of groceries and related products in
various stores throughout the Yuma, Arizona area, and main-
tains an office and place of business in San Luis, Arizona. Dur-
ing the year immediately prior to the filing of the complaint,
Factor Sales derived gross revenues in excess of $500,000, and
purchased and received at its facilities goods valued in excess
of $50,000 directly from points outside the State of Arizona.
SLT and Factor Sales admit and I find that they are employers
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. SEC is a truck-
ing company located in Mexico, and it transports goods be-
tween Mexico and the United States.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Subpoenaed Records Relating to the Charges
and Issues
The complaint was issued on September 19 and listed a hear-
ing date of October 17. On September 29, the General Counsel
served subpoenas on SLT, Factor Sales, and SEC. The subpoe-
nas called for the production of documents relating to the issues
in this case. The subpoenaed documents were listed in sepa-
rately numbered paragraphs and were further delineated accord-
ing to the issues raised in the complaint. The Respondents filed
petitions to revoke the subpoenas. SLT and Factor Sales also
filed a motion to extend the date of the hearing because of the
large number of subpoenaed documents, many of which were
allegedly at SEC’s facility in Mexico and would need to be
translated. The Respondents’ motion to continue the hearing
date was granted and the hearing date was extended from Octo-
ber 17 until November 7.
By letter dated November 2, which was faxed to counsel,
this administrative law judge notified counsel for the Respon-
dents that, notwithstanding the petitions to revoke the subpoe-
nas, the Respondents were required to bring the subpoenaed
documents to the hearing, in accordance with the commands of
the subpoenas, and that the documents must be produced in
accordance with the separately numbered paragraphs in the
subpoenas. This judge advised counsel that their petitions
would be decided at the start of the hearing. See McAllister
Towing & Transportation Co., 341 NLRB 394 (2004) (in
which the judge, with Board approval, followed a similar pro-
cedure).
At the start of the hearing on November 7, the Respondents’
petitions to revoke the subpoenas were denied. However, the
Respondents did not produce any documents at the hearing as
required by the subpoenas and by this judge’s previous direc-
tion to the Respondents. Moreover, SEC did not enter an ap-
pearance at the hearing, in spite of the Respondents’ representa-
tion in seeking a continuance of the hearing date of their need
to examine and produce documents from SEC’s facility in
Mexico.
The Respondents contend that they produced the documents
to the General Counsel the day before the start of the hearing.
On November 6, at 1:30 p.m., the Respondents permitted attor-
neys for the General Counsel, together with an assistant, to
come to the offices of SLT and Factor Sales to inspect docu-
ments. Armando Gonzalez, who represented himself as Factor
Sales’ supervisor of records, escorted Government counsel to a
trailer in which 288 boxes of documents were stored. Gonzalez
represented that these boxes contained records from June 2005
to the present. Gonzalez then escorted Government counsel to a
Factor Sales warehouse that contained grocery goods for use in
Factor Sales grocery operations. However, this warehouse also
contained 36 pallets holding 60 boxes per pallet. Gonzalez
represented that these boxes contained Factor Sales’ records
from 1998 to 2005. Gonzalez then escorted Government coun-
sel to an SLT trailer, which contained 23 boxes of documents.
Respondents’ counsel represented at the hearing that the
documents in the warehouse were not documents responsive to
the subpoenas, and that the Respondents “simply showed coun-
sel where all documents for the companies were maintained.”
(Tr. 22.)2 With due respect to counsel, this representation is not
credible. The Respondents provided no reason why they would
display for Government counsel the location where they kept
unsubpoenaed documents. Moreover, counsel’s representation
contradicts Gonzalez’ representation that the warehouse docu-
ments included Factor Sales’ records for 2004 and 2005. These
were the very documents that were subpoenaed. Moreover,
Gonzalez did not mention to the General Counsel when he
displayed the thousands of boxes that the boxes were not rele-
vant to the demands in the subpoenas and that he was display-
ing the boxes for Government counsel’s general information.
Thus, the Respondents’ alleged compliance with the subpoe-
nas was to display 2471 boxes of documents to Government
counsel in the afternoon on the day before the start of the hear-
ing. This display did not include personnel records that had also

2 References to the transcript of the hearing are designated as Tr.
SAN LUIS TRUCKING, INC. 213
been subpoenaed and that were contained in Factor Sales’ hu-
man relations department. In addition, and despite Gonzalez’
representation of the contents of the boxes, this display of
stored boxes containing records would not have contained Fac-
tor Sales’ records relating to its current operations. Nor did this
display apparently include any records from SEC.
A person responding to a subpoena for documents shall pro-
duce the documents “as they are kept in the usual course of
business or shall organize them to correspond with the catego-
ries in the demand.” Fed.R.Civ.P. 45(d). This requirement is
similar to the requirement on a party responding to a request to
produce documents. A party, unless the court otherwise orders,
“shall produce them as they are kept in the usual course of
business or shall organize and label them to correspond with
the categories in the request.” Fed.R.Civ.P. 34(b)(i).
The Respondents’ contention that they complied with the
subpoenas by making 2471 boxes of documents “available” to
the General Counsel on the afternoon before the start of the
hearing is inexplicably based on Federal Rule of Civil Proce-
dure 34, which relates to a party’s request for production of
documents, rather than Federal Rule of Civil Procedure 45,
which relates to subpoenas. Nevertheless, the wording of the
two rules is virtually identical in relation to the party’s (or per-
son’s) compliance obligation being limited to two options, viz.,
to produce the documents as they are kept in the usual course of
business or to organize the documents in accordance with the
request or demand.
The Respondents have made no showing that the documents
in the 2471 boxes of documents that were kept in Factor Sales’
trailer and warehouse were kept in the usual course of business.
“As to the documents in storage, they are no longer kept in the
‘usual course of business,’ they are kept in the usual course of
‘storage,’ and the option granted by the first clause of Rule
34(b) no longer exists. That leaves the producing party with the
obligation to ‘organize and label’ the documents to correspond
to the document requests.” In re Sulfuric Acid Antitrust Litiga-
tion, 231 F.R.D. 351, 363 (ND IL 2005). Moreover, 5 days
before the start of the hearing in this case, this judge directed
the Respondents to produce the documents at the hearing, con-
sistent with the second clauses of Rule 34(b) and Rule
45(d)(1)(A), viz., in accordance with the document requests in
the subpoenas.
The Respondents were served with the subpoenas approxi-
mately 5 weeks before the hearing date, which had been con-
tinued because of the Respondents’ representation that they
needed additional time to secure the documents. Accordingly,
they had sufficient time in which to organize their documents in
accordance with the requests in the subpoenas. In addition,
when the Respondents appeared at the start of the hearing with-
out any of the requested documents, they did not claim, nor do
they presently claim, that they did not have sufficient time to
comply with the subpoenas, or with the Federal Rules of Civil
Procedure, or with this judge’s direction.
The party producing documents has the burden to produce
the documents requested rather than simply dumping large
quantities of unrequested materials onto the requesting party
along with the documents actually sought. Rothman v. Emory
University, 123 F.3d 446, 455 (7th Cir. 1997); 8A Wright,
Miller, & Marcus, Federal Practice and Procedure § 2213
(2006). The Respondents made no effort to separate requested
materials from unrequested materials. They simply displayed to
the Government 2471 boxes of stored documents, which pre-
sumably constitute all of the Respondents’ documents in stor-
age, and maintain that such a display conforms to the subpoe-
nas’ demands because, like the needle in the haystack, many or
most of the subpoenaed documents must be somewhere in those
2471 boxes. Such actions do not constitute compliance with the
subpoenas served on the Respondents.
The Respondents also contend that they did not produce any
records at the hearing because they should not have been re-
quired to produce records until this judge ruled on their peti-
tions to revoke. This claim is misplaced and disingenuous. The
claim is misplaced because a subpoenaed party’s petition to
revoke does not automatically suspend or stay the commands of
the subpoena. Moreover, if the Respondents were unsure of the
continued viability of the subpoenas, they should have advised
this judge or the General Counsel. They did not.
The Respondents’ claim is disingenuous for the following
reason. The Respondents’ petitions to revoke were denied at the
start of the hearing on November 7. The Respondents failed to
produce any of the documents on November 7, in accordance
with the subpoenas and as they had been directed by this judge,
or at any time during that week. The hearing lasted until No-
vember 9, and then was continued until December 5. The Re-
spondents failed to produce any of the subpoenaed documents
on December 5 or at any time during the resumed hearing that
week. On December 8, the hearing was again continued until
January 9, 2007. Again, the Respondents failed to produce any
of the subpoenaed documents on January 9 or at any time dur-
ing the resumed hearing that week.
Thus, to claim that the Respondents felt or believed that they
should not have to produce subpoenaed documents until after
the judge ruled on their petitions to revoke, and that pursuant to
this feeling or belief, the Respondents did not produce the
documents, fails to account for the period of 2 months after the
judge’s ruling that the Respondents’ petitions were denied. The
Respondents could have and should have produced the subpoe-
naed documents at the start of the hearing. Their failure to
comply with the subpoenas was compounded by their contin-
ued failure to comply with the subpoenas during the 2-month
period after their petitions were denied, during which they
steadfastly refused to produce the subpoenaed documents.
In addition, the subpoenas commanded the Respondents to
produce documents at the hearing. The obligations imposed by
the subpoenas do not depend on and are not lessened by the
subpoenaed party filing a petition to revoke before the due date
of the subpoenas. The Respondents do not cite any provision of
law or authority that mitigates their obligations under these
circumstances. The Respondents’ filings of petitions to revoke
do not and did not operate to stay or suspend their obligations
pursuant to the subpoenas. The Respondents assumed the risk
that their petitions to revoke would be denied, and they elected
to refuse to obey the subpoenas at the start of the hearing and
throughout the hearings, in spite of the subpoenas’ commands,
and this judge’s written direction to the Respondents before the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD214
hearing, and the denial of their petitions to revoke at the start of
the hearing.
The Respondents produced documents to the Board during
the Board’s investigation of this case, and they asserted in re-
sponse to the trial subpoenas that they had already produced
some of the documents demanded in the subpoenas. However,
the General Counsel represented that it was not seeking any
documents that had already been produced. Still, the Respon-
dents refused to produce any documents at the hearing pursuant
to the subpoenas. Accordingly, this judge ordered that the Re-
spondents were prohibited from offering any documents into
evidence that they had not turned over to the Board during its
investigation.
Nevertheless, to force the Government to rely on the docu-
ments that the Respondents saw fit to produce during the inves-
tigation, while being denied the relevant documents lawfully
subpoenaed for trial, places an unwarranted burden on the Gov-
ernment and casts doubt on the integrity and completeness of
the documents that the Respondents had previously produced.
These documents were offered, by the Government and the
Respondents, and received into evidence during the hearing.
The parties were advised at the hearing (Tr. 40) that, where
appropriate, adverse inferences might be drawn and the parties
should address the matter in their posthearing briefs, which
they have done. McAllister Towing & Transportation Co., 341
NLRB 394, 394 (2004); Teamsters Local 776 (Pennsy Supply),
313 NLRB 1148, 1154 (1994); see Auto Workers v. NLRB, 459
F.2d 1329 (D.C. Cir. 1972).
I have determined that adverse inferences should be drawn in
certain limited situations where relevant documents were sub-
poenaed, the documents would have assisted in resolving the
factual issue in question, and the Respondents would likely
have such documents. (The Respondents have not asserted that
they do not possess the subpoenaed documents.) Such adverse
inferences are addressed in connection with the respective fac-
tual findings to which the inferences relate.
B. Background
All facts found in this decision are based on the record as a
whole and on my observation of the witnesses. The credibility
resolutions have been made from a review of the entire testi-
monial record and exhibits with due regard for logic and prob-
ability, the demeanor of the witnesses, and the teaching of
NLRB v. Walton Mfg. Co., 369 U.S. 404 (1962). Many wit-
nesses testified during the two hearing sessions in this case, and
it would be unproductive, inefficient, and confusing to address
the testimony given by every witness concerning the factual
matters covered in this decision. Nevertheless, it should be
noted that as to those witnesses testifying in contradiction of
the findings, their testimony has been discredited, either as
having been in conflict with the testimony of reliable witnesses
or because it was incredible and unworthy of belief or as more
fully explained in the text. With respect to the testimony re-
garding what occurred at meetings or discussions with the Re-
spondents’ management, I have also taken into account the
economic dependence of employees on employers, with aware-
ness of an employee’s attentiveness to intended implications of
the employer’s statements which might be more readily dis-
missed by a disinterested party. See NLRB v. Gissel Packing
Co., 395 U.S. 575, 617 (1969).
1. Factor Sales
For approximately the past 20 years, Factor Sales has oper-
ated grocery stores in the Yuma, Arizona area. Factor Sales
currently operates nine stores, all of which are located within a
25-mile radius of Yuma. Factor Sales employs approximately
500 employees in its stores. The stores currently operate under
the names of IGA, Del Sol, Factor Warehouse, King Market,
and other names. (See, e.g., GC Exh. 19, title page.) Factor
Sales previously operated stores under the name of Maxi. That
store has reopened under the name of Factor Warehouse. Factor
Sales also owns Factor Sales of Mexico, Inc., which operates
several grocery stores in Mexico.
Victor Salcido is the majority shareholder of Factor Sales.
The remaining two shareholders are Carmen Salcido, who is
Victor Salcido’s wife, and Rosa Maria Valencia, who is mar-
ried to Victor Salcido’s brother, Rosendo Valencia. The direc-
tors of Factor Sales are Victor Salcido and Jose Luis Mendoza,
Victor Salcido’s brother-in-law. The officers of Factor Sales are
Victor Salcido, president, Jose Luis Mendoza, vice president
and treasurer, and Carmen Salcido, secretary. SLT, discussed
below, has the same directors and officers as Factor Sales.
Salcido owns and manages Factor Sales. Valencia is in
charge of maintenance for the Factor Sales vehicles and the
transportation of groceries between and among the stores. Sal-
cido was careful to stress that Valencia did not hold a manage-
ment position in Factor Sales. (E.g., Tr. 68, 1089.) However,
that testimony is not credible. Valencia is Salcido’s brother and
close confidant. Valencia has been associated with Salcido,
through family, business ownership, and work, in the Factor
Sales’ businesses for over 20 years. Valencia holds manage-
ment positions in each of Factor Sales’ subsidiaries—SLT
(general manager), SEC (general manager), and Factor Sales of
Mexico (store coordinator, who is the person in charge of run-
ning all the stores). Valencia would often give directions to
Factor Sales’ in-house accountants and human resource offi-
cials. If Valencia did not have the title of manager in Factor
Sales (and there is no credible evidence he did not), he func-
tioned as a manager. Indeed, in the management hierarchy of
Factor Sales, Valencia was second only to Salcido.
In addition, the General Counsel subpoenaed Factor Sales’
documents that would assist in determining Valencia’s man-
agement position and functions. (GC Exh. 3, pars. 24, 89–97.)
From the Respondents’ failure to produce these documents, I
infer that the documents would confirm that Valencia held a
managerial position with Factor Sales. This inference supports
the determination of Valencia’s management position.
Valencia is the general manager of SLT. He testified that he
spent approximately 80 percent of his time on SLT business
and 20 percent of his time on Factor Sales business, during the
time that SLT was operating. (Tr. 893.) Although these per-
centages correspond exactly to what Salcido’s stated (Tr. 147),
both testimonies fail to account for the time Valencia spent
managing SEC and managing the stores for Factor Sales of
Mexico. In considering their demeanor and the substance of
their testimony, it is likely that Salcido and Valencia, brothers,
SAN LUIS TRUCKING, INC. 215
business associates, and co-owners, had conferred before the
hearing and had agreed, in general and in particular, on the
substance of their respective testimonies. They faithfully fol-
lowed this line, without regard to the importance of the testi-
mony or its plausibility or accuracy. Salcido and Valencia did
not have the demeanor or appearance of witnesses who were
trying to be honest without regard to consequences. They were
neither straightforward nor candid. Salcido and Valencia were
not credible witnesses.
Assuming that Valencia spent 20 percent of his time doing
work for Factor Sales, he performed this work from his office
at SLT. Factor Sales sent him reports relating to his Factor
Sales duties. Moreover, Factor Sales employees transported
Factor Sales vehicles to SLT’s facilities. These vehicles were
stored at SLT’s facilities, and they were maintained and re-
paired by SLT employees, all under the orders and oversight of
Valencia.
2. San Luis Trucking
SLT is a wholly owned subsidiary of Factor Sales. Victor
Salcido formed SLT in 1993 for the purpose of transporting
merchandise for Factor Sales and for other companies. Victor
Salcido is the president of SLT and has complete authority over
the affairs of SLT. His brother, Rosendo Valencia, is SLT’s
manager and handles its day-to-day affairs. However, Salcido
explained this apparent management structure by testifying, “I
managed the business [SLT] through Rosendo Valencia.” (Tr.
100.) Factor Sales comprised the majority of SLT’s business.
From early 2004 until July 2005, Factor Sales comprised ap-
proximately 80 percent of SLT’s business.3 Approximately 75
percent of this business consisted in transporting grocery goods
from Unified Western Grocers (Unified) in Los Angeles to
Factor Sales’ stores and warehouse.
As an American corporation, SLT is able to transport goods
within the United States, and from the border town of San Luis
Rio Colorado, Mexico, into the United States. SLT is not per-
mitted to transport goods from within Mexico to places within
the United States, or visa versa.
Valencia manages SLT. His duties include supervising
SLT’s employees and assigning trips to the drivers. He dis-
cusses with Salcido all the important matters and decisions
involving SLT’s business operations. Valencia assigns San Luis
drivers their routes. He is the single person responsible for ob-
taining business for SLT.
SLT’s facilities are located in San Luis, Arizona, about a
mile from Factor Sales’ main offices. SLT’s facilities, the land
and buildings, are owned by Factor Sales. However, Factor
Sales does not charge SLT any rent for the use of its property
and there is no lease to designate the parties’ respective duties
and liabilities concerning the property and the use of the prop-

3 The credible testimony estimated the percentage at approximately
70 percent or more. During the contractual negotiations, SLT stated,
through its attorney, that 80 percent of SLT’s business was with Factor
Sales. Of course, SLT and Factor Sales’ financial records subpoenaed
by the General Counsel would have been helpful, if not instrumental, in
arriving at the actual percentage. Nevertheless, the testimony at the
hearing and the foregoing admission are generally consistent with and
support the above finding.
erty. Salcido testified that he did not feel it was worth the trou-
ble to charge and collect rent for SLT’s use of the facilities,
which includes offices, maintenance for the trucks, and parking
for the many trucks. This testimony was not credible. The real
reason that Factor Sales did not bother to collect rent from SLT
was that the two companies were operated as one and there was
not an arms’-length relationship between Factor Sales and SLT.
Only in these circumstances is it reasonable to forego rental
income because the funds remain with the same person, Sal-
cido, without regard to any payment.
SLT transports grocery goods from the United States-
Mexican border to Factor Sales stores, and between Phoenix,
Arizona, Los Angeles, San Diego, and Oakland, California, to
the Factor Sales warehouse and Factor Sales stores. SLT also
transports grocery goods between Factor Sales stores. When
SLT drivers deliver grocery goods to Factor Sales stores, the
drivers are subject to directions and orders from Factor Sales
store managers. The store managers order the drivers to help
unload the trucks, to stock the merchandise in the stores, and to
haul away trash from the stores. When SLT drivers deliver
goods to the Factor Sales’ warehouse, the drivers are subject to
directions and orders from the warehouse manager. For exam-
ple, the Factor Sales warehouse manager directs the drivers to
move cartons of merchandise within the warehouse and to load
the trailers.
SLT drivers perform other functions for Factor Sales, such as
collecting shopping carts and hauling garbage from the stores.
Factor Sales also maintains and regularly uses a workshop on
SLT’s site where Factor Sales’ employees work to repair
equipment used in the Factor Sales stores.
SLT does not have an accounting department. Factor Sales’
accountants do all of the accounting for Factor Sales and for its
subsidiaries, including SLT and SEC. Factor Sales’ accounting
staff members work at the San Luis facilities, sometimes sev-
eral days a week. Nevertheless, SLT did employ a bookkeeper,
Diana Tenorio.
In August 2003, Tenorio applied for accounting work at Fac-
tor Sales. She worked briefly as a cashier at a Factor Sales
store, but resigned. She asked Iliana Murrieta, an employee in
Factor Sales human resources department, to contact her if an
accounting position became available. Murrieta called Tenorio
in November 2003, and said that Factor Sales had an opening in
SLT, one of Factor Sales’ affiliates. Tenorio reported to Factor
Sales’ offices and was interviewed by Angelica Zamora, the
head of Factor Sales’ accounting department for the past 11
years. Zamora coordinates all the accounting for Factor Sales
and its affiliates. Zamora hired Tenorio. Zamora introduced
Tenorio to Valencia as Tenorio’s immediate supervisor. When-
ever Tenorio had questions regarding her responsibilities, she
called Zamora for advice. Occasionally, Zamora also worked at
SLT’s offices.
Tenorio’s responsibilities included sending invoices to cus-
tomers who shipped goods with SLT or SEC. Customers would
tell Tenorio to bill them from either SLT or SEC, without re-
gard to the company that actually performed the service. Teno-
rio would then prepare the invoice on either SLT or SEC letter-
head. The customers of SLT and SEC sent their payments to
Tenorio at SLT’s offices. Tenorio regularly sent the checks
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD216
payable to SEC to SEC’s accountant in Mexico. Tenorio was
also responsible for collecting customers’ outstanding accounts,
and she followed the same procedure, including dunning letters,
without regard to whether it was an SLT or an SEC bill.
Tenorio maintained SEC’s financial records, including
checks and invoices, at SLT’s offices. Valencia approved ex-
penses for SEC and SLT before payment. Zamora instructed
Tenorio in late 2005 to stop submitting SEC’s expenses to Fac-
tor Sales for payment and to compile a list of SEC’s expenses
that SLT had paid. The list was prepared, but SEC has not fully
paid SLT for these expenses. SLT did not charge any interest
on these payments or impose any terms of repayment on SEC.
Moreover, although Tenorio stopped submitting SEC’s ex-
penses to Factor Sales for payment pursuant to Zamora’s in-
structions, Tenorio continued to submit insurance bills for
SLT’s trucks to Factor Sales for payment. SLT closed in Febru-
ary 2006. When it closed, SEC still owed SLT approximately
$60,000 to $70,000.
The diesel fuel expenses of the drivers for SLT and SEC
were handled through a petty cash fund. Drivers reported their
fuel expenses to Adela Vigil, SLT’s dispatcher. If there was
insufficient money in the petty cash fund, Vigil would bring the
expenses to Tenorio. Tenorio would then prepare a check for
cash or petty cash, which was taken to Zamora and Gonzalez
for their signatures. The signed check was sent to Tenorio, who
gave it to Vigil. Vigil then cashed the check at a Factor Sales
store and replenished her petty cash fund with the proceeds.
The Factor Sales store did not charge a fee for cashing the
check.
As dispatcher, Vigil was responsible for assigning trips to
SLT and SEC drivers, coordinating the drivers’ trips, and han-
dling their fuel expenses. The dispatcher also told drivers when
to report for work and was authorized to issue written warnings
to drivers who arrived late. Vigil also prepared shipping docu-
ments after receiving the necessary information from Valencia,
or Valencia himself would prepare the shipping documents.
The shipping documents were then taken to Tenorio to prepare
an invoice to send to the customer.
Vigil left her job at SLT in May or June 2005, and was re-
placed by Raimundo Salcido. (The evidence fails to establish
whether Raimundo Salcido is related to Victor Salcido.) Valen-
cia then started a new procedure in which the dispatcher’s du-
ties were split between Raimundo Salcido, who was responsible
for handling the SLT drivers, and Saul Rivera, formerly a
driver for SEC, who would handle the SEC drivers.
Tenorio was not authorized to sign any checks. When paying
the expenses for SLT and SEC, Tenorio first checked the bal-
ance in SLT’s bank account. If there was a sufficient balance to
cover the payments, she prepared checks and sent the checks to
Factor Sales for signature by Salcido (alone) or Zamora and
Armando Gonzalez (together). Gonzalez is the financial man-
ager for Factor Sales. He supervises Factor Sales’ financial
division, including the accounting department. The signed
checks were then returned to Tenorio who gave the checks to
the SLT and SEC drivers or mailed the checks to out-of-town
recipients. Occasionally, Gonzalez also worked at SLT’s of-
fices.
When the balance in SLT’s bank account was not sufficient
to cover SLT or SEC’s expenses, Tenorio advised Valencia.
Valencia then directed Tenorio to ask Zamora at Factor Sales
for a loan, or Valencia would go directly to Factor Sales for the
money. Zamora confirmed the amount needed and the urgency
of the request, and then authorized the payment from Factor
Sales to SLT. SLT generally repaid these advances in approxi-
mately 30 days. However, there were no loan documents and
no terms to the loans. No interest was charged.
SLT also paid SEC’s drivers for their trips in the United
States by creating fictitious documents to give the appearance
that the trips were done by a third party transportation company
rather than by SEC. SLT drivers normally did these trips. How-
ever, when SEC drivers did trips for SLT, the SEC drivers com-
pleted logs of their trips and handed the logs to Valencia or
Rivera. Valencia or Rivera then contacted Manuel Romero of
MC Freight to create invoices that would reflect the amounts to
be paid to the SEC drivers. Valencia or Rivera handed the in-
voices to Tenorio, who prepared checks for signatures by Fac-
tor Sales. When the signed checks were returned, Tenorio
handed them to Romero and Rivera, and they, in turn, cashed
the checks at a Factor Sales store. Rivera took the proceeds
from the checks, returned to SLT’s facilities, and paid the SEC
drivers or gave the money to Valencia to pay the SEC drivers.
There is no evidence that Vigil participated in this scheme to
hide and falsify the shipping information for SLT trips per-
formed by SEC drivers. Moreover, the scheme was furthered by
Valencia’s splitting the dispatcher’s duties between SLT and
SEC. Accordingly, I conclude that the scheme was instituted by
Valencia, in conjunction with Rivera, in approximately May or
June 2005.4
Factor Sales also lent money to SLT to purchase trucks. For
example, in 2004, after Valencia had discussed the loan with
Factor Sales’ front office, Factor Sales loaned SLT $60,000 for
the purchase of two trucks. SLT repaid the loan in approxi-
mately 4 months. There were no loan documents and no terms
to the loan. No interest was charged. Factor Sales also lent
money to SLT for SLT’s legal expenses in fighting the Union’s
organizing campaign and election.
SLT does not have a human resources department. Instead,
Factor Sales’ human resources department handles SLT’s per-
sonnel responsibilities. When employees apply for work at
SLT, they report to Factor Sales offices where they obtain and
complete applications and are interviewed by Factor Sales hu-
man resource officials. Indeed, when some employees, like
Tenorio, apply for work at Factor Sales, they are interviewed
by Factor Sales employees, but then are assigned a position at
SLT. All of the applications for employment at SLT are on
Factor Sales forms. When SLT applicants are hired, they are
notified of their hiring by Factor Sales’ human resources offi-
cials in letters or memoranda using Factor Sales letterhead.

4 I realize that Romero’s testimony on when the scheme started is
unclear. (Tr. 284.) My conclusion that the scheme was instituted in
approximately May or June 2005 is from the juxtaposition of Valen-
cia’s splitting the dispatcher’s duties between SLT and SEC, and the
placement of Rivera in the newly created dispatcher’s position dealing
with SEC drivers, both of which occurred in the May–June 2005 time
period.
SAN LUIS TRUCKING, INC. 217
In these letters or memoranda, Factor Sales notifies the new
employee that (1) he (or she) is being hired by Factor Sales in
its department or installation known as SLT; (2) he is required
to follow Factor Sales’ policies, but if he fails to do so, Factor
Sales will terminate his employment; (3) he is directed to report
to Valencia who will assign work hours and duties to the new
employee; and (4) Factor Sales could change the new em-
ployee’s department or store depending on Factor Sales’ needs.
The hiring letter then welcomes the new employee to the Factor
Sales group.
New SLT employees are also required to sign a Factor Sales
form promising to return to Factor Sales various items of cloth-
ing and equipment that Factor Sales issues to new employees,
depending on the employees’ jobs. SLT employees promise to
return to Factor Sales the nametag and waist guard that Factor
Sales issues to them for their employment. SLT employees also
agree that Factor Sales will deduct from their final paychecks
the cost of these items if the employees do not return the items
to Factor Sales.
After being hired by Factor Sales, the new SLT employees
attend orientation classes with other, new employees hired by
Factor Sales to work in its stores or in its corporate offices.
Factor Sales’ human resources department employees conduct
these orientation classes. New SLT employees also receive the
same Spanish-language employee handbook that Factor em-
ployees receive. The handbook contains policies and direc-
tives, with the word “Factor” displayed at the top of each page,
concerning personnel and labor relations matters such as absen-
teeism, inappropriate behavior, and security. The handbook
distributed to SLT employees contained several additional
pages relating to their responsibilities as drivers.
Factor Sales continued to monitor SLT employees’ job per-
formance throughout their employment. Factor Sales’ human
resources department counseled SLT employees on work rules
and on individual work performance. Factor Sales also issued
instructions to SLT employees on various aspects of their jobs.
For example, Factor Sales issued instructions to SLT drivers
that they were required to keep a detailed logbook, they should
not drive trucks that had mechanical problems, and they should
report any mechanical problems to the Factor Sales’ human
resources department.
Lourdes Salcido, the niece of Victor Salcido and the current
manager of Factor Sales’ human resources department, attested
to the foregoing information concerning Factor Sales’ human
resources department instructions to SLT employees. However,
she only admitted these facts because they were contained in
memoranda issued by Factor Sales’ human resources depart-
ment. (E.g., GC Exh. 16.) She had previously testified that
Factor Sales instructed SLT drivers on their job performance
only if Valencia asked for help. (Tr. 221.) Lourdes Salcido’s
testimony was, at best, less than candid. In general, Lourdes
Salcido did not testify in a forthright manner, and she was not a
credible witness.
The personnel records for SLT employees are kept and main-
tained by Factor Sales in its human resources department.
When Factor Sales sends letters or memoranda to SLT employ-
ees, it uses Factor Sales or SLT letterhead. The Respondents
did not explain why Factor Sales employees signed documents
on behalf of SLT or why documents to SLT employees were
transmitted on Factor Sales documents.
SLT employees participate equally with Factor Sales em-
ployees in benefits and programs provided by Factor Sales to
Factor Sales employees. For example, SLT employees are in-
vited to Factor Sales’ annual picnic and Christmas party. SLT
employees receive discounts when making purchases at Factor
Sales stores. SLT employees are eligible for loans from Factor
Sales, just like Factor Sales employees. Factor Sales supervises
these benefits and programs for SLT and Factor Sales employ-
ees.
SLT employees are also eligible for Factor Sales’ employee-
of-the-month awards, which award the winning employees cash
and food vouchers at Factor Sales’ stores. In July 2004, SLT
driver Antonio Macias was named Factor Sales’ employee-of-
the-month, and his photograph was posted at Factor Sales’
headquarters office and several of the stores. SLT mechanic
Jose Vera was also awarded the Factor Sales’ employee-of-the-
month citation.
Factor Sales publishes a monthly newsletter titled Factori-
zate. Factorizate contains articles and news about Factor Sales,
SLT, and SEC, and the employees of these Factor Sales com-
panies. Factorizate is distributed to employees of Factor Sales,
SLT, and SEC, as well as the Respondents’ clients. SLT and
SEC are listed on the title page of Factorizate as being a part of
Factor Sales, no different than the grocery stores operated by
Factor Sales. (E.g., GC Exhs. 18–20.) Recipients of Factor
Sales’ employee-of-the-month award were profiled in Factori-
zate, including Macias and Vera. Factorizate publishes articles
about all departments of Factor Sales, including personnel and
accounting, and including SLT and SEC. Factorizate carries
announcements of birthdays, promotions, and anniversaries of
Factor Sales employees, including employees of SLT and SEC.
Factor Sales handles workers compensation and unemploy-
ment compensation matters for SLT employees. Factor Sales
coordinates SLT employees’ vacations, conducts exit inter-
views for SLT employees, and implements layoffs and dis-
charges of SLT employees. Factor Sales also participated in the
bargaining sessions between SLT and the Union. Factor Sales
was represented in those bargaining sessions by Glenda Mo-
reno—who trains prospective managers of Factor Sales stores
and who is Salcido’s personal assistant and translator—and by
Lourdes Salcido, the chief of Factor Sales’ human resources
department.
3. SEC
SEC is a company organized under the laws of Mexico and
is based in San Luis Rio Colorado, Mexico, which is located
across the border from San Luis, Arizona. Victor Salcido is the
president of SEC and Rosendo Valencia is SEC’s general man-
ager. Salcido and Valencia are shareholders in SEC, and Sal-
cido admits to being a “major” shareholder. However, in viola-
tion of the subpoenas, the Respondents produced no documen-
tary evidence to establish the extent of their and Salcido’s fam-
ily’s holdings.
Salcido holds approximately 58 percent of the shares of SEC
in his name. (GC Exh. 1(xx), p. 2, fn. 1.) However, Salcido
testified that he does not know the exact percentage of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD218
shares of SEC that he owns. He also testified that he was not
sure if his brother owned any shares. These statements are ei-
ther true, which would tend to show that Salcido has complete
authority over the affairs of SEC because the percentage of his
and family members’ ownership is not important to him. Or,
the statements are false, and Salcido knows precisely the num-
ber of shares in his own name and the number of shares he has
placed in the name or names of his family members.
Salcido was not a credible witness. He spoke very slowly
and deliberately. He frequently evaded answering questions
asked of him by the Government, and instead engaged in re-
peated statements on his recurrent themes of (1) disassociating
himself from any involvement in or knowledge about the affairs
of SLT, and (2) expounding that the reason he closed SLT in
February 2006 had nothing to do with the Union’s certification
of SLT’s employees in February 2005. Salcido was shown a
proposed affidavit that the Board had sent to him during its
investigation. Before admitting he had previously seen the affi-
davit (which he possessed and had kept for several months), he
took an inordinately long time to review (although he could
have been memorizing) every line of every page in the affida-
vit. Salcido slowly, carefully, and fastidiously corrected what
he claimed were incorrect statements in the proposed affidavit,
and the affidavit was then placed into the record. (Tr. 60–98.)
Then, after the passage of a month and the opportunity to dis-
cuss the matter with his counsel and others, Salcido testified
during the second resumed hearing that he had uncovered addi-
tional corrections to the affidavit. Salcido was not credible as a
witness, and he was not credible in this testimony.
Salcido testified so slowly and deliberately that he appeared
to be befuddled and unable to understand the questions (from
Government counsel, but not from his own attorney) or the
proceedings, or both. Yet, Salcido owns and operates corpora-
tions, in the United States and Mexico, and a chain of grocery
stores that employs approximately 500 people. He started two
trucking companies, one in Mexico and one in the United
States, that transport grocery items for his grocery stores, as
well as goods for other companies. Salcido’s befuddlement was
entirely inconsistent with the entrepreneur and intelligent busi-
nessman the evidence shows him to be. Salcido’s slow, meek,
hesitating, and confused manner appeared to be contrived. He
did not appear to be credible or interested in testifying truth-
fully. He appeared interested only in making sure his testimony
did not hurt his position in this case, without regard to credibil-
ity or plausibility.
For example, it is not plausible that Salcido did not know the
extent of his own ownership or the extent of the ownership of
family members to whom Salcido had provided shares of own-
ership. Moreover, Salcido’s professed general ignorance of
SEC’s affairs and ownership tracks his professed general igno-
rance of SLT’s affairs. SLT was closely aligned with SEC in
the transportation of grocery goods. And, as noted above, Sal-
cido consistently testified in a manner that disassociated him
from SLT.
Salcido also displayed a suspicious inability to remember
events and circumstances that the owner of Factor Sales and the
creator and effective owner of SLT would know. (E.g., Tr. 75,
81, 82, 84, 86, 89, 92, 93, 94, 95, 97, 121, 127, 130, 131, and
135, to cite only the instances in his first day of testimony.) On
the other hand, when Salcido was asked questions by his own
attorney, he never failed to remember. (Tr. 1085, et seq.) Of
course, Salcido’s transformation into a person who was able to
remember everything asked of him by the Respondents’ attor-
ney could also be attributed to careful trial preparation by the
Respondents’ attorney. However, even conceding that point,
Salcido’s demeanor throughout his testimony showed a person
who was not forthright and was not credible. On balance, I
conclude that Salcido is the real and effective owner of SEC
and that he has complete authority over the affairs of SLT and
SEC.
SEC was formed for the purpose of transporting goods be-
tween cities in Mexico, and from cities in Mexico to the United
States border. SEC was eventually permitted to transport goods
to destinations within the United States. Salcido and Valencia
used SEC to transport goods among Factor Sales stores in Ari-
zona, and from locations in Arizona and California to Factor
Sales stores. No evidence was presented on whether SLT, an
American corporation, possessed the same rights to transport
goods within Mexico as SEC, a Mexican company, possessed
to transport goods within the United States. Nevertheless, such
evidence might not be particularly important, at least as far as
the Respondents are concerned, because SLT and SEC are
owned and controlled by the same person, Salcido, who could
and did use either company to transport goods depending on
Salcido’s desires and interests.
Despite the initial purpose of SEC, its drivers were occasion-
ally assigned trips within the United States, trips that normally
were assigned to SLT drivers. Valencia was the general man-
ager of SEC. His duties for SEC included supervising SEC’s
employees and assigning trips to the drivers. Because Valencia
had the same position and performed the same functions for
SLT, he had the authority to and did assign SLT trips to SEC
drivers.
SEC leased its trucks from SLT. SLT had purchased these
trucks for between $4000 and $100,000 each. SEC paid SLT
$300 per month for each truck it leased from SLT. SEC did not
sign lease agreements for its leases of these trucks from SLT.5
Thus, other than the amount of the monthly payment (which
itself is not set forth in any document), there are no terms to
SEC’s lease of the trucks or any listing of the respective rights
and obligations of SEC and SLT. SLT did not lease trucks to
anyone else.
Despite the fact that SEC leased the trucks from SLT, when
SLT registered the trucks with the State of Arizona, it claimed
that SLT leased the trucks from SEC.
C. Representation Elections
In early 2004, the Union began to organize the employees of
SLT and Factor Sales. When Salcido learned of the organizing
efforts, he hired consultants to assist him in handling and re-
sponding to the campaign. The Union filed a representation
petition to represent the employees of Factor Sales on June 28,

5 Among the documents subpoenaed from the Respondents were
documents relating to leases of equipment by SEC. (GC Exh. 7, pars. 7,
8, 17; GC Exh. 5, pars. 7, 8, 17.) The Respondents did not produce any
such documents.
SAN LUIS TRUCKING, INC. 219
2004. One day later, the Union filed a petition to represent the
employees of SLT.
An election was held in July 2004 for the employees of SLT,
and the Union lost that election. A second election was held for
the employees of SLT in January 2005.6 The Union won that
election and, on February 11, 2005, was certified as the exclu-
sive collective-bargaining representative of SLT’s employees in
the following unit:
All full-time and regular part-time truck drivers, mechanics,
dispatcher, and accountant assistant employed by the Respon-
dent San Luis Trucking; excluding all other employees,
guards, and supervisors as defined in the Act.
On March 11 and 12, 2005, an election was held for the em-
ployees of Factor Sales. The Union lost that election. However,
the hearing officer sustained an objection and recommended
setting aside the election because he found that Factor Sales
had engaged in objectionable conduct. On July 31, 2006, the
Board overruled the objection and certified the results. Factor
Sales, Inc., 347 NLRB 747 (2006).
Before the first election in July 2004, Salcido held a series of
meetings with the employees of Factor Sales and SLT. SLT
employees attended the first meeting, which was held approxi-
mately May 2004 in the Factor Sales offices.7 Salcido cau-
tioned the employees to be careful in deciding how to vote in
the upcoming election because if the Union came in to SLT, he
would close down SLT the same way he had closed down
Maxi. Maxi is the name of a former grocery store owned and
operated by Factor Sales.
Salcido held meetings with employees until the day before
the first election, on which he held two meetings. Salcido also
told the employees immediately before the election that he was
going to close a B-Mart store, one of Factor Sales’ stores. Sal-
cido said that he regretted closing the store, but it was not pro-
ducing.
One of the consultants who Salcido retained to deal with the
organizing campaign and election was Michael Penn. On July
30, the day before the first election, Valencia took Ignacio
Sandoval, an SLT driver, to the Factor Sales office in order to
meet with Penn. Penn told Sandoval that the Union was no
good and did not help anyone. Penn told Sandoval that Salcido
had a lot of money and Salcido “could just pick up his marbles

6 The General Counsel asserts in its posthearing brief, “SLT engaged
in objectionable conduct and ordered a rerun election. See San Luis
Trucking, Inc., [Case] 28–RC–6291, December 29, 2004.” (GC
Posthearing Br. p. 16.) However, the General Counsel did not attach a
copy of this decision to its brief or offer a copy of the decision at the
hearing. (See GC Exh. 60, containing the Union’s petition, the tally of
the ballots in the first election in July 2004, and the tally and corrected
tally of the ballots in the rerun election in February 2005. However, the
reason the rerun election was ordered is not contained in the docu-
ments.) Moreover, I have been unable to access the decision on the
Board’s website. Accordingly, I am unable to determine why the rerun
election was ordered.
7 Salcido testified that he could not remember the number of meet-
ings or where the meetings were held. (Tr. 116.) This failure of mem-
ory occurred in response to questions from the General Counsel. How-
ever, without regard to who asked the questions, the testimony is not
credible.
and go and rest.” (Tr. 513.) Also, on the day before the election,
Salcido sent a letter to all SLT employees in which he made
veiled promises about improving the working conditions, and
he urged the employees to vote against the Union.
These actions by Salcido are noteworthy not only for their
bearing on Salcido’s animus, but also on his credibility. Salcido
gave the distinct impression in his testimony that it was imma-
terial to him whether the employees decided for or against be-
ing represented by a union. “I always said that whatever they
[the employees] decided was fine.” (Tr. 120.) This is a misrep-
resentation. Quite clearly, Salcido did not want the Union to
represent his employees. He held meetings with his employees
to persuade them to vote against the Union. He sent a letter to
all employees urging them to vote against the Union. He util-
ized Factorizate to spread antiunion messages. The Respon-
dents spent a considerable amount of money in legal fees and
consulting fees to fight the Union’s organizing campaign and
the election. Yet, in the face of these actions, Salcido swore in
the hearing that whatever the employees decided regarding
union representation was fine with him. Salcido’s testimony is
not candid or credible.
D. Respondents’ Actions After the Union was Certified
to Represent SLT’s Employees
1. Discipline and absence reports
When an SLT employee is absent from work or engages in
misconduct, SLT prepares a report and places the report in the
employee’s file. The report is generally issued by Valencia, but
occasionally is issued by the dispatcher.
The first such report issued by SLT is dated May 25, 2004,
about 2 months before the first representation election. This
report was an absence report and was issued to Jose Quezada, a
driver. Quezada started working for SLT in 1998 and had never
before received such a report.
Valencia testified that he had issued such reports in the past.
However, he did not cite any instances and could not remember
any other reports that he might have issued. The subpoenas
requested copies of personnel files and discipline actions issued
to employees since 2001. (GC Exhs. 3, 5, and 7, pars. 84 and
85.) I infer from the Respondents’ failure to produce such
documents that the documents do not exist.
The next time such reports were issued to SLT employees
was in September 2004 (three discipline reports) and October
2004 (one absence report). These reports, which include the
first discipline reports that SLT issued, were issued after the
commencement of the Union’s organizing campaign and during
the period when the union’s objections to the July 2004 election
were pending. Of the reports issued in September, one was
issued to Eduardo Siqueiros, who began working for SLT in
1994, and one was issued to Jesus Aguilera, who began work-
ing for SLT in 1997.8 The October report was issued to
Raimundo Salcido, who began working for SLT in 2004.
Again, these employees had never before received such reports.
The next time absence or discipline reports were issued to
SLT employees was on March 8, 2005, within 1 month of the

8 The third report was issued to Armando Cruz. Cruz’ hire date is
unknown.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD220
Union’s certification as representative of SLT’s employees.
Three reports were issued in March, four in April, four in June,
one in July, seven in August, one in September, and two in
November. These reports were issued to seven different em-
ployees who had worked at SLT since 1994 or later. These
employees had never before received such reports. The Re-
spondents did not notify the Union about their issuance of these
reports or the increased number of reports.
Despite these reports, no disciplinary action was taken
against any of the employees cited in the reports. Indeed, one
employee, Antonio Macias, was issued five reports; another
employee, Jorge Gonzalez, was issued five reports; and another
employee, Blas Martinez, was issued four reports. However, no
action, such as suspension or termination, was taken against
Macias, Gonzalez, Martinez, or any other employee as a result
of these reports.
The Respondents claim that on January 28, 2005, Factor
Sales began taking photographs of damaged or disheveled mer-
chandise that SLT drivers delivered to the Factor Sales ware-
house. The Respondents claim that the pictures demonstrate the
SLT drivers’ poor performance. Pictures were taken on January
28, March 30, July 14, and August 27, 2005. Jorge Urrea, Fac-
tor Sales’ warehouse manager, took most of the pictures. Urrea
was the warehouse manager from about March 30, 2005, until
November 2005. Antonio Ballesteros preceded Urrea and was
the warehouse manager from 2003 until March 29, 2005.
Curiously, the only evidence of such poor performance as re-
flected in the photographs, even from the Respondents’ wit-
nesses, relates to the period immediately before and soon after
the January 29 representation election that the Union won.
Ballesteros testified that he had never experienced any prob-
lems with the condition of the goods delivered by SLT at the
Factor Sales warehouse. Moreover, Ballesteros’ testimony con-
tradicts the Respondents’ claim that SLT drivers delivered
damaged goods on January 28, 2005, because Ballesteros was
the warehouse manager until March 29, 2005, and he had never
experienced problems with the condition of the goods.
Given Factor Sales’ long history of no problems with the
condition of goods delivered by SLT drivers, it is not credible
that suddenly, and immediately before and soon after the un-
ion’s election, the SLT drivers would start delivering goods in a
damaged or disheveled condition. The Respondents’ photo-
graphs of alleged damaged goods are not credible for this rea-
son and this unlikely coincidence. In addition, the incredibility
of the Respondents’ claim regarding poor performance by
SLT’s drivers is enhanced by the testimony that no problems in
the condition of goods had occurred during the time that some
of the photographs were taken and by the absence of documen-
tary evidence to show that Factor Sales took any action regard-
ing such damaged goods.
Whether the photographs were staged, or reflect damage
caused by other employees in Factor Sales’ warehouse, or re-
flect merchandise delivered by some transportation company
other than SLT, or have some other explanation, cannot be
determined. Nevertheless, under all the circumstances, the
credible evidence does not substantiate the claim that SLT driv-
ers delivered damaged and disheveled merchandise to Factor
Sales’ warehouse.
Nevertheless, Ballesteros testified that during the period
2003 and 2004 SLT drivers continually arrived late and many
times would deliver merchandise that should not have been
delivered to Factor Sales. Ballesteros asserts that he told Valen-
cia about these alleged continual problems. However, there is
no evidence that Valencia ever took any action regarding these
alleged problems. Valencia did not discipline the drivers or
even speak to them about these problems. Nor is there any evi-
dence that Salcido, the owner of Factor Sales, took any action
regarding these alleged problems. Such a complete lack of re-
sponse on the part of management and ownership to alleged
problems, which supposedly occurred continually and over a
substantial period, undermines the credibility of the claim. It
must be remembered that these were deliveries to Factor Sales,
which owned SLT. Surely, if any entity could and would make
efforts to address or correct problems of this nature, it would be
Factor Sales and Salcido. Yet nothing was done and there is no
evidence that anything was ever attempted. Accordingly, I con-
clude that the SLT drivers did not deliver merchandise late or
deliver the wrong merchandise to Factor Sales, or, if SLT did
make such deliveries, that such deliveries were insignificant
and were not a problem for Factor Sales.
2. Interrogations
After the Union won the election in January 2005 and was
certified as the employees’ representative, Valencia approached
Quezada at SLT’s facilities and asked Quezada what he thought
about the Union and what was he going to do. Quezada replied
that he just wanted to keep his job and move forward. Valencia
asked Quezada similar questions, approximately on a weekly
basis, until the end of Quezada’s employment at SLT in July
2005. There is no evidence that Quezada had, at any time, dis-
closed to management his attitude toward the Union.
3. Rule on employees talking to each other
SLT employed two mechanics, Jose Vera and Jose Marquez.
Vera had longer experience with SLT and functioned as
Marquez’ supervisor. Vera and Marquez maintained and re-
paired SLT’s trucks and Factor Sales’ equipment and vehicles.
Vera was against the Union, and the Respondents’ management
knew he was against the Union. For example, Vera did not
attend any union meetings during the organizing campaign;
however, he did attend meetings held by Factor Sales. Factor
Sales and Salcido held meetings during the organizing cam-
paigns to urge the employees of Factor Sales and SLT to vote
against the Union. Moreover, after SLT was closed, Factor
Sales retained Vera to continue repairing Factor Sales’ vehicles,
similar to what Vera had done when he worked for SLT. In
contrast to Vera, Marquez was not against the Union.
SLT’s mechanics and drivers regularly speak to each other at
SLT’s facility. Indeed, they are required to communicate so that
the drivers could explain any problems with the trucks that
should be addressed or repaired by the mechanics. Prior to June
2005, SLT did not have any rules, policies, or instructions re-
stricting discussions between SLT’s mechanics and drivers.
In June 2005, Aguilera, a driver, spoke to Marquez at SLT’s
facility concerning problems that Aguilera had with a truck.
After their conversation, Valencia told Marquez that he was not
allowed to speak to the drivers unless Vera was present. Valen-
SAN LUIS TRUCKING, INC. 221
cia told Aguilera that he was not allowed to speak with
Marquez. Valencia told Aguilera that if Aguilera had a problem
with any of the trucks, he should tell Valencia who would, in
turn, tell the mechanics.
4. Contractual negotiations
In March, April, and May 2005, the Union, SLT, and Factor
Sales met for the purpose of negotiating a collective-bargaining
agreement, for a total of three meetings during this period. In
the April meeting, SLT was represented by Barry Olsen, Esq.
and Valencia. Moreno and Lourdes Salcido were present for
Factor Sales. Paul Rubin, the secretary-treasurer of the Union,
Martin Hernandez, a union organizer, and two SLT employees,
Sigueiros and Aguilera, represented the Union.
Olsen started the meeting by stating that SLT was losing a
great deal of money, which he blamed on competition from
Mexico and an unexplained Supreme Court decision. Olsen did
not mention the job performance of SLT drivers—such as late
deliveries, cargo damaged in transit, or cargo delivered to the
wrong location—as being a factor in SLT’s losses. Indeed,
these alleged problems were not mentioned at all. After the
parties talked about, but did not agree on, a contract, Rubin
asked Olsen if SLT would open its books because of Olsen’s
claim that SLT was losing money. Olsen replied, “possibly.”
(Tr. 300.)
The parties met again on May 26, 2005. Olsen represented
SLT, and Moreno and Lourdes Salcido were again present for
Factor Sales. Rubin, Nancy Mortazavi (a union representative),
Aguilera, and Ignacio Sandoval, an SLT driver, represented the
Union.
Olsen repeated his claim concerning SLT’s poor financial
condition. Again, Olsen mentioned nothing about the job per-
formance of SLT’s drivers as being a factor in SLT’s claimed
losses. Rubin questioned whether the financial data on which
Olsen was relying was accurate or trustworthy. Rubin reminded
Olsen that Factor Sales owned SLT, and those companies could
structure their business dealings to assign all the profits from
their dealings to Factor Sales, leaving SLT with a loss. Olsen
did not respond to Rubin’s question on the accuracy or trust-
worthiness of SLT’s records regarding its claimed loss. Olsen
said that SLT could not reasonably raise its prices because Fac-
tor Sales was then negotiating with Unified for a delivery price
that was equal to the price being charged by SLT. Olsen
claimed that he did not think SLT would be financially able to
survive the summer of 2005.
Rubin said that the work hours of SLT’s employees were
rapidly decreasing, and that SLT’s work was being subcon-
tracted. Olsen replied that SEC and SLT had similar ownership,
and that SEC was paying SLT a fee to use SLT’s facilities and
trucking permits. Olsen added that SEC was making deliveries
to Factor Sales in the United States. Rubin then mentioned
other companies to whom SLT was subcontracting work. These
companies included Santa Fe Trucking, Gala Trucking,
Valenzuela Trucking, San Luis Freight, and Royal Trucking.
Moreno responded that she did not know these companies,
except that Gala Trucking was actually San Luis Cooling. Ol-
sen said he did not want to meet again with the Union until
certain financial figures became available. In fact, the parties
did not meet in another bargaining session.
On July 28, Rubin sent Olsen a letter requesting that SLT
stop outsourcing work that was performed by bargaining unit
members. Without denying that SLT had subcontracted bar-
gaining unit work, Olsen asked Rubin to “please clarify the
exact instances of ‘outsourcing of work.’” (GC Exh. 28.) Ol-
sen’s request for this information was disingenuous. Olsen
knew the outsourcing of work that Rubin described because
Rubin had already told Olsen the names of companies, includ-
ing SEC, to whom SLT had given bargaining unit work. Olsen
did not deny that outsourcing was occurring and he did not
need to be cited a particular instance of such outsourcing to
know that SLT was subcontracting work. Olsen’s response to
Rubin’s July 28 letter constitutes an admission by the Respon-
dents that SLT was indeed subcontracting bargaining unit work.
5. Subcontracting
SLT subcontracted transportation work since approximately
2004. (Tr. 1338.) The companies that received the subcon-
tracted work include MC Freight, M. Ruiz Trucking, and San
Luis International Freight Services. The Respondents claim that
subcontracting occurred only when SLT drivers were not avail-
able to do the work. The credible evidence does not support this
claim. Vigil testified that when the SLT assigned driver was
unable to make a trip, the trip would then be subcontracted.
Accordingly, the credible evidence does not show that when the
assigned SLT driver was unable to make a trip, Valencia or the
dispatcher would first offer the trip to other SLT drivers before
subcontracting the trip. (Tr. 1337–1338.)
While still on direct examination, Vigil later agreed that trips
were not subcontracted if “there was an available driver at San
Luis Trucking.” (Tr. 1339.) However, this agreement is incon-
sistent with her previous testimony, and, more importantly, this
“testimony” was given in response to a leading question from
the Respondent’s counsel. Under the circumstances, the later
testimony of Vigil is ambiguous, is not credible, is inconsistent
with her previous testimony, and is substantially discounted
because of the leading question.
Valencia also testified as follows in response to the follow-
ing leading question from the Respondents’ counsel: “Did you
ever subcontract out work, sir, when you had a Driver that was
available to do the work? No. First, it was my Drivers.” (Tr.
1209.) Valencia was not a credible witness. His close relation-
ship with Salcido, his managerial and ownership interests in the
Respondents, his apparent bias throughout his time on the wit-
ness stand, and his demeanor support the conclusion that Va-
lencia was not a credible witness. Moreover, Valencia’s testi-
mony, like Vigil’s testimony on this same issue, is ambiguous,
is not credible, and is substantially discounted because of the
leading question.
Shortly after the election in January 2005, Quezada spoke to
Raimundo Salcido about Valencia’s attitude toward the workers
before the election. Quezada said he had seen Valencia scold
the workers, and Quezada believed that Valencia’s attitude
might have helped to push the workers toward the Union.
Shortly after that conversation, Valencia called Quezada at
home and said that Victor Salcido wanted to speak to Quezada.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD222
Salcido came to Quezada’s residence, and they spoke in Sal-
cido’s car.
Salcido asked Quezada what he had said about Valencia’s at-
titude, and Quezada told him. Salcido said he agreed with Qu-
ezada. Salcido then said that although the Union was already at
SLT, Salcido would not allow the Union to remain there. Sal-
cido said that he would rather close down the business or close
down the trucks. Quezada replied that he already knew Salcido
felt this way.
a. Unified
Unified is a cooperative that is owned by its member grocery
stores. Unified sells and delivers grocery goods to its member
stores. Factor Sales has been a member of Unified and has pur-
chased grocery goods from Unified for over 20 years. However,
Unified’s transportation of goods to Factor Sales had been lim-
ited to refrigerated goods for one or two stores. Most of Factor
Sales’ remaining grocery goods were purchased from Unified
and were transported by SLT.
At various times before March 2004, Unified made proposals
to Factor Sales to increase Unified’s transportation of grocery
goods to Factor Sales and its stores in the Yuma area. However,
Factor Sales accepted none of these proposals.
In approximately March 2004, Unified embarked on a mar-
keting campaign to promote its transportation services to mem-
bers of Unified who were located in Arizona. Unified’s cam-
paign was based on its plan to charge transportation rates as if
Unified were located in Phoenix, even though Unified is actu-
ally located in Los Angeles. This marketing campaign was
carried out over several days by four officials of Unified—
Rodney Van Bebber, the senior vice president of distribution,
Luis De La Mata, corporate vice president and president of the
southern California division, Randy Delgado, director of sales,
and Colette Pyce, Unified’s Arizona representative. This Uni-
fied team spent a day in the Yuma, Arizona area and met with
Salcido.
The Unified representatives met with Salcido in his Factor
Sales office, and presented their proposal. Nevertheless, like the
previous attempts by Unified to increase its transportation ser-
vices to Factor Sales, this attempt in March 2004 was also un-
successful. Salcido did not accept Unified’s proposal.
In early 2005, close to the January election won by the Un-
ion, Salcido again met with Unified’s representatives. Unified
offered Factor Sales the same proposal that they had offered
Factor Sales in March 2004. This time, and after having re-
jected all previous offers from Unified, Salcido accepted Uni-
fied’s offer to transport grocery goods for all of Factor Sales’
stores. Salcido decided to implement his decision on July 1,
2005.
The Respondents assert, in Salcido’s testimony and in their
posthearing brief, that Salcido’s decision to replace SLT with
Unified to transport Factor Sales’ grocery goods was motivated
by several factors. These factors were:
1. Risk of loss from goods damaged in transit. Unified as-
sumed the risk of damage to goods during transit for goods that
Unified transported, but not for goods transported by the cus-
tomer.
This claim, insofar as Unified is concerned, is simply an ac-
knowledgement that the company that transports goods as-
sumes the risk of damage to the goods in transit. However, the
Respondents assert that SLT and Factor Sales operated in a
reverse and strange manner. The Respondents claim that SLT
was not liable for the goods it damaged while transporting the
goods to Factor Sales. Rather, Factor Sales incurred the loss.
The Respondents enhance this implausible claim by asserting
that SLT drivers often damaged goods, either in transit or when
the SLT unloaded the goods at Factor Sales. This claim is not
credible, both because Salcido was not a credible witness and
because the claim is implausible.
It is difficult to imagine any business, let alone Factor Sales
in dealings with its subsidiary, that would willingly and without
compensation or consideration agree to be responsible for, and
accept the loss from, goods damaged by another company. The
Respondents produced no documents to support this claim,
such as an agreement between Factor Sales and SLT setting
forth the parties’ rights and obligations. (See GC Exhs. 3 and 5,
par. 8, requesting copies of agreements between Factor Sales
and SLT.) In addition, and contrary to the Respondents’ claim,
Jorge Urrea, Factor Sales’ warehouse manager in 2005, testi-
fied that SLT credited Factor Sales for damaged goods. (Tr.
1355–1356, 1363.)
Moreover, the Respondents’ allegation that SLT drivers of-
ten damaged goods that they delivered to Factor Sales is not
credible. The first “evidence” of damaged goods in this case is
from pictures taken at the Factor Sales warehouse on January
28, 2005, 1 day before the rerun election. There is no credible
evidence of grocery goods having been damaged in transit by
SLT drivers before that date. Indeed, the evidence proves that,
at least from 2003 until March 29, 2005, there were no prob-
lems with the condition of the goods delivered to Factor Sales.
Moreover, as explained above, the Respondents’ evidence of
goods allegedly damaged by SLT drivers is not credible.
In addition, if SLT drivers had damaged goods in transit or
in unloading the goods at Factor Sales, and especially if this
had often occurred, it is reasonable to expect some corrobora-
tion in Factor Sales’ records and in the drivers’ personnel re-
cords. However, there is no documentary corroboration of the
Respondents’ claim.
If SLT drivers had often damaged goods that were delivered
to Factor Sales, it is also reasonable to expect Factor Sales to
try to rectify the situation by negotiating a different agreement
with SLT, or by insisting that the careless drivers be prohibited
from delivering to Factor Sales, or by any number of other
actions. Surely, the fact that Factor Sales owned SLT would
give any such rectifying actions more attention, if not urgency,
at SLT.
The testimony of the Respondents’ witnesses concerning
damaged goods and late deliveries by SLT drivers was not
credible. For example, Antonio Ballesteros, Factor Sales’ ware-
house manager from 2003 to March 2005, testified that SLT
continually delivered merchandise late. However, Ballesteros
testified that over the more than 2 years he was the warehouse
manager, no other company ever delivered merchandise late.
Such a claim defies common sense. This implausible and in-
SAN LUIS TRUCKING, INC. 223
credible claim shows the extent of the bias exhibited by Factor
Sales’ current employees who testified at the hearing.
Also, the careful handling of shipped goods is something that
could have been negotiated between SLT and the Union during
the bargaining sessions for a contract. However, SLT did not
mention this alleged factor when the parties met.
For all of these reasons, the evidence does not support the
Respondents’ claim that the risk of loss for damaged goods, and
the alleged fact of goods damaged in transit by SLT drivers,
were important or significant or motivating factors in Factor
Sales’ decision to replace SLT with Unified.
2. Disposal of empty pallets. Unified retrieved empty pallets,
that it had used to deliver grocery goods to stores, and trans-
ported the pallets back to Los Angeles.
The “value” of this service is countered by Van Bebber’s
statement that Unified charges its customers for the round trip
from Unified’s warehouse to the customer’s store because Uni-
fied, unlike SLT, only ships its own products. Unified does not
ship goods for other companies. “[T]he customers down here
are responsible for paying really what amounts to a round trip
ticket, but they get value for that because while we’re at the
store, we’ll pick up their empty pallets.” (Tr. 432.) Essentially,
the customer pays the same to have Unified transport the empty
pallets back to Unified’s warehouse as the customer pays to
have Unified transport the grocery goods to the customer. On
the other hand, and as Van Bebber explained, transportation
companies, such as SLT, do not charge customers for a round
trip because these companies transport goods in both directions.
Moreover, SLT drivers were subject to directions and orders
from Factor Sales’ store managers. Among other things, the
store managers ordered SLT drivers to help unload the trucks
and to dispose of trash. The store managers could similarly
have directed the SLT drivers to remove pallets and other items
from the stores. And, in any event, the disposal of pallets or any
other items in Factor Sales stores and warehouse is something
that could have been negotiated between SLT and the Union
during bargaining for a contract, especially since Factor Sales
was represented in the bargaining sessions between SLT and
the Union. However, the Respondents did not mention this
alleged factor when the parties met.
3. Fees for less than full truckloads. Unified charged by the
quarter truckload. Thus, if a customer’s order only comprised,
for example, one-half a truckload, the customer was only
charged for one-half a truckload rather than a full truckload.
This pricing structure might be beneficial to Factor Sales if
Factor Sales had a significant number of less-than-full-
truckload deliveries. However, there is no evidence that Factor
Sales did have a significant number of such deliveries.
Moreover, SLT could have instituted this pricing structure or
a similar pricing structure for deliveries to Factor Sales. Indeed,
Factor Sales could have insisted on it. However, there is no
evidence that SLT did institute such a pricing structure or even
considered it. Again, if this pricing structure was a motivating
reason for Factor Sales replacing SLT with Unified, it is rea-
sonable to expect that Factor Sales and SLT would have dis-
cussed the pricing structure and attempted to implement it or a
similar pricing structure. Their failure to do so tends to prove
that Unified’s pricing structure was not a significant or motivat-
ing reason for Factor Sales’ decision to replace SLT with Uni-
fied.
4. Unified is a cooperative and offers special prices to its
members. Unified also conducts price comparisons. The Re-
spondents contend that Salcido’s decision to replace SLT with
Unified was motivated by Unified’s policy of (1) providing
special pricing to its members and (2) conducting price com-
parisons showing that the effect of Unified’s prices on its cus-
tomers was positive. (R. Posthearing Br. p. 24.) These claims
appear to be another way of saying that Factor Sales’ decision
to replace SLT with Unified was based on cheaper prices; how-
ever, the Respondents specifically disavow any such conten-
tion.
Thus, these cost justifications devolve into the contention
that Factor Sales’ decision to replace SLT with Unified was
motivated, in part, by the belief that Unified’s prices, while not
as low as SLT’s prices, were monitored by Unified to insure
that the prices were as low as Unified could make them. This is
not a convincing reason to explain, must less justify, Factor
Sales’ decision to replace the transportation services provided
by its subsidiary with the more expensive transportation ser-
vices provided by Unified.
5. More reliable delivery times. The Respondents claim that
Unified promised more reliable delivery times for their prod-
ucts than SLT. However, the evidence does not support the
Respondents’ claim that Unified promised more reliable deliv-
ery times. Van Bebber testified that Unified does not guarantee
delivery time, but it offers delivery windows and “we strive to
be within those windows.” (Tr. 437.) Thus, Unified offered no
greater assurance of on-time deliveries than SLT.
The Respondents claim that SLT delivered products late, and
that SLT refused to improve their service. However, the Re-
spondents failed to produce any corroborating, documentary
evidence of this latter claim. Also, Factor Sales owned SLT,
and Valencia was at all times under the control and authority of
Salcido. SLT’s alleged refusal to improve its service to Factor
Sales is not credible.
Moreover, if on-time deliveries were a concern or priority of
Factor Sales, and if SLT had delivered products late, there is no
evidence that Factor Sales took any action against SLT for the
alleged late deliveries or that Factor Sales directed or requested
SLT to take any action against the truckdrivers who had deliv-
ered their products late. Also, there is no evidence that SLT
independently took any action against such truckdrivers. This
lack of evidence tends to show that on-time deliveries were not
a priority, or even a concern (because deliveries, in fact, had
been timely made by SLT) of Factor Sales.
Also, on-time deliveries are something that could have been
negotiated between SLT and the Union during bargaining for a
contract, especially because, as noted above, Factor Sales was
represented in the bargaining sessions. However, the Respon-
dents did not mention on-time deliveries during their negotiat-
ing sessions with the Union.
6. Greater variety of products. The Respondents contend that
Salcido decided to replace SLT with Unified because “In Mr.
Salcido’s estimation, Unified Grocers offered a greater variety
of product and more sales options.” (R. Posthearing Br. p. 26.)
But, there is no evidence that Unified’s variety of goods was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD224
any greater in January 2005 (when Salcido and Unified met to
agree on Unified’s proposal), or on July 1, 2005 (when Factor
Sales implemented its decision to replace SLT with Unified),
than in 2004 or the other times when Unified met with Salcido
and Salcido refused Unified’s offer. The only thing that was
different in 2005 was that the Union had won the election and
represented SLT’s workers.
Moreover, before July 2005, SLT had been transporting Uni-
fied’s grocery goods to Factor Sales. Indeed, this transportation
constituted most of SLT’s business. The Respondents failed to
explain why SLT could not or did not transport the same vari-
ety of Unified’s goods as Unified delivered after July 2005.
7. Factor Sales could cease purchasing from its competitors.
Before Factor Sales implemented its substitution of Unified for
SLT on July 1, 2005, Factor Sales purchased some of its gro-
cery goods from National Grocers. Factor Sales had purchased
grocery goods from National Grocers since approximately
2003. Basha’s owns National Grocers. Basha’s also operates
retail grocery stores. Salcido testified that he felt vulnerable
making grocery purchases from National Grocers because Ba-
sha’s was a competitor of Factor Sales, Basha’s would know
what he was purchasing, and Basha’s could charge less for the
same products.
Salcido’s contention is undermined by at least four factors.
First, the evidence does not establish that Basha’s is a direct
competitor of Factor Sales because it was not shown that Ba-
sha’s operates grocery stores in the same markets (Yuma,
Weldon, Somerton, and San Luis, Arizona) as Factor Sales.
Second, the Respondents failed to produce any documentary
evidence showing the extent of Factor Sales’ purchases from
National Grocers. Thus, the evidence fails to establish whether
Factor Sales’ purchases from National Grocers were substantial
enough to even be a concern, much less a motivating concern,
to Salcido.
Third, Factor Sales had purchased grocery goods from Na-
tional Grocers since approximately 2003, yet had rejected Uni-
fied’s overtures from 2003 through 2004. If purchasing from
National Grocers were truly a concern of Salcido’s, he would
likely have taken some correcting action before 2005. The only
thing that was different in 2005 when Factor Sales accepted
Unified’s proposal was that the Union represented SLT’s work-
ers.
Fourth, the Respondents did not explain why or how Factor
Sales’ substitution of Unified for SLT allowed Factor Sales to
stop purchasing from National Grocers, nor why Factor Sales
could not have obtained from Unified, before July 2005, the
goods it had previously been purchasing from National Gro-
cers. In other words, Factor Sales could have stopped purchas-
ing grocery goods from National Grocers at any time before
July 2005, and, instead, could have purchased the same type of
goods from Unified. Before July 2005, SLT would have trans-
ported these goods from Unified to Factor Sales, just as SLT
was already transporting goods from National Grocers to Factor
Sales. Besides, SLT was already transporting a substantial
amount of goods from Unified. Thus, Factor Sales’ decision to
use Unified rather than SLT to transport its goods did not en-
able Factor Sales to cease purchasing from a competitor.
Rather, the decision simply enabled Factor Sales to use Unified
rather than SLT to transport its goods.
In September 2005, Salcido requested a meeting with Uni-
fied to discuss Unified’s prices. The meeting was held in San
Diego and was attended by Van Bebber, Salcido, and Moreno.
Salcido requested the meeting because Unified was charging
more to deliver grocery goods to Factor Sales than SLT had
charged. Because the Union represented SLT’s workers, Sal-
cido was concerned that Unified’s high prices would or could
show that he decided to use Unified in order to avoid using
SLT. Van Bebber convinced Salcido that Unified’s services
were sufficiently different from SLT’s services that the com-
parison was inapt.
Factor Sales does not have a written contract with Unified or
any obligation to use Unified for its transportation services.
Thus, Factor Sales could end its relationship with Unified at
any time and return to using SLT, or some other company, to
provide transportation services.
The elimination of SLT’s trips from Unified to Factor Sales’
stores and warehouse after July 1, 2005, trips that had previ-
ously constituted the majority of SLT’s business, had a predict-
able effect on SLT’s business. The trips that were available to
and were assigned to SLT’s drivers decreased after the business
was subcontracted to Unified. Sandoval and Jorge Gonzalez’
income decreased, forcing them to quit. Gonzalez quit in July
2005 because his reduced income was insufficient to cover his
bills. Sandoval quit in November 2005 because of his reduced
income. Quezada quit in July 2005 after the number of his trips
was reduced and after Raimundo Salcido told him that Qu-
ezada’s trips would be cut in half. Quezada would not have
been able to support his family if his trips were cut in half.
Accordingly, he resigned.
6. Closure of SLT
SLT was formally closed on February 6, 2006. Salcido testi-
fied that he decided to close SLT in October 2005 because of
SLT’s continuing and mounting losses.
SLT’s alleged losses are set forth in financial statements pre-
pared by Factor Sales’ accounting firm, Gray & Terkelsen,
P.L.L.C. Gray & Terkelsen provides three levels of service to
its clients—audit, review, and compilation, in decreasing order
of verification. Compilation is essentially what it sounds like—
the compilation of financial figures from books provided by the
client, but without verifying the figures, auditing the books, or
reviewing any backup or corroborating documents for such
financial figures. The service provided by Gray & Terkelsen for
Factor Sales and its subsidiaries was compilation, the service
providing the least verification of the financial figures. As
noted by Gray & Terkelsen in its cover letter to the financial
statements, the accounting firm does not express an opinion or
any other form of assurance on the financial statements.
According to the compilations provided by Gray & Terkel-
sen, Factor Sales and SLT reported net income in the following
years:
SAN LUIS TRUCKING, INC. 225
Year9
Factor
Sales
San Luis
Trucking Exhibit
2003 ($584,835) $138,174 R Exh. 9, SLT 010022
& 010035
2004 384,724 76,867 R Exh. 10, SLT
010042 & 010054
2005 101,088 (260,802) R Exh. 11, SLT
010061 & 010067
2006 439,754 (402,482) R Exh. 12, SLT
010807 & 010813
With respect to the figures for 2005 and 2006, Gray &
Terkelsen added the following warning in its reports:
Management has elected to omit substantially all of the dis-
closures required by generally accepted accounting principles.
If the omitted disclosures were included in the financial state-
ments, they might influence the user’s conclusions about the
Company’s financial position, results of operations and cash
flows.
(R. Exh. 11, SLT 010059, R. Exh. 12, SLT 010804.) These
figures also disclose a curious, and unexplained, inverse rela-
tionship between the profits and losses, respectively, of Factor
Sales and SLT. That is, and in general, Factor Sales losses ac-
companied SLT profits, and, Factor Sales profits accompanied
SLT losses.
The Respondents failed to explain the cause for this inverse
relationship between the profits and losses of Factor Sales and
SLT. However, three striking characteristics of Factor Sales’
reported profits and losses are the following. First, Factor Sales
is the 100-percent owner of SLT. Salcido owns Factor Sales
and Salcido’s brother manages SLT. Factor Sales handles all
the accounting for SLT. Thus, Factor Sales could structure its
accounting entries in order to assign greater income or losses to
Factor Sales or SLT, as Factor Sales or Salcido saw fit. One
example is an entry for legal expenses in the amount of
$57,145, which was allegedly incurred by SLT in 2004 to fight
the Union’s organization drive. However, the Union attempted
to organize Factor Sales’ workers at the same time it attempted
to organize SLT’s workers. (The election for the Factor Sales’
workers was held in March 2005.) Yet, there is no evidence that
Factor Sales incurred any legal expense to fight the Union’s
organizing campaign at Factor Sales, despite the fact that there
was equal, if not greater, motivation to fight the campaign at
Factor Sales than SLT. Nevertheless, $57,145 in legal ex-
penses, constituting a substantial portion of SLT’s alleged loss
in 2004, is attributed to SLT rather than Factor Sales.
Moreover, the Respondents assert that some unspecified Su-
preme Court case caused increased competition from compa-
nies in Mexico, resulting in SLT’s loss of business to such
companies. However, SLT’s sales only decreased by $137,494
in 2005 ($2,057,396) from 2004 ($2,194,890), whereas SLT’s
expenses increased by $242,247 in 2005 ($2,317,016) from
2004 ($2,074,769). (R. Exh. 10, SLT 010054; R. Exh. 11, SLT
010067.) Thus, loss of business does not explain SLT’s losses
in 2005 as much as increased expenses. And, these expenses

9 Yearly figures are for the fiscal year ending June 30.
were controlled by, paid by, and posted in its books by Factor
Sales.
In addition, Factor Sales or SLT could have assigned a
greater number of SLT trips to SEC in 2005 than the evidence
discloses. If such assignments had been made, they would more
than account for the SLT’s relatively small decrease in sales.
Moreover, when such assignments are made, Salcido suffers no
loss because the assignments are made from one controlled
company to another. However, the Respondents failed to pro-
duce subpoenaed documents that were relevant to and could
have proved or disproved such assignments.
Factor Sales or SLT could also have assigned regular SLT
trips to Santa Fe Transport, a transportation company owned by
Valencia. Both Salcido and Valencia owned competing trans-
portation companies (SEC and Santa Fe Transport, respec-
tively) that could have been used to siphon profits from, or
increase expenses to, SLT. However, the Respondents failed to
produce subpoenaed documents that could have proved or dis-
proved such siphoning or improper expenses.
The second striking characteristic of the reported financial
figures for Factor Sales and SLT is the lack of assurance pro-
vided by the accounting firm that compiled the figures and the
corresponding lack of confidence that may be placed in such
figures when attempting to determine the credibility of Sal-
cido’s claim that he closed SLT because of its continued and
mounting losses.
Third, the Respondents failed to comply with the subpoenas
and failed to produce subpoenaed documents that would have
or could have substantiated or explained the reported income,
expenses, profits, and losses, or on the other hand, refuted the
reported figures.
Accordingly, I conclude that the Respondents have not
proven, through credible and reliable evidence, that SLT suf-
fered losses in 2005 and 2006, and have not proven that SLT
was closed because of continued or mounting losses.
Effective July 1, 2005, Factor Sales subcontracted with Uni-
fied to transport grocery goods from Unified to Factor Sales
stores and warehouse. SLT had previously performed these
transportation services. Prior to July 1, Factor Sales represented
approximately 80 percent of SLT’s business. SLT continued to
transport limited goods to Factor Sales’ stores after July 1, such
as orange juice and milk, but the volume was small and could
not support the continued existence of SLT.
Valencia stated that he tried to get business for SLT from
companies located in Mexico. Valencia testified that he went to
Mexico 3 days every week from May 2005 until SLT closed in
his effort to generate additional business for SLT. This claim is
not credible. First, SLT could not transport from inside Mexico,
except for the border community. Second, even if Valencia’s
testimony was limited to the border community, 3 days a week,
every week, for over 9 months, is an inordinately large amount
of time for such limited prospects. Third, Valencia did not pro-
vide a single example of any business he obtained for SLT
during these alleged, many visits.
Although Salcido closed SLT on February 6, 2006, no physi-
cal assets of SLT have been sold. SLT continues to park its
trucks in the yard at its facility in San Luis, Arizona, the same
facility SLT used when it was operating. Salcido closed SEC in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD226
approximately October 2006, within weeks of the start of the
hearing in this case. At the time of its closure, SLT had ap-
proximately eight employees: Jesus Aguilera, Antonio Macias,
Jose Marquez, Blas Martinez, Raymundo Salcido, Eduardo
Siqueiros, Diana Tenorio, and Jose Vera.
7. Request for information
In the parties’ April 2005 contractual, negotiation meeting,
Olsen mentioned that SLT was suffering losses. The Union
asked if SLT would open its books, and Olsen replied, “possi-
bly.” In the May meeting, Olsen again mentioned SLT’s poor
financial condition, and added that SLT might not be finan-
cially able to survive the summer of 2005. At the end of the
meeting, Olsen refused to schedule another meeting until SLT
received certain financial figures.
By letter dated October 19, 2005, Olsen notified the Union
that the “owners” of SLT had decided to close the business.
(GC Exh. 29.) Although Olsen mentioned alleged financial
problems of SLT during the negotiating sessions with the Un-
ion in April and May 2005, the October 19 letter was the first
time the Respondents told the Union of their decision to close
SLT. After unsuccessful attempts at effects bargaining, the
Union sent a letter dated December 22, 2005, to SLT requesting
information as follows:
You, representatives of San Luis Trucking and attorneys for
San Luis Trucking have stated that it is the intention of San
Luis Trucking to close its business. Those same individuals
have stated that San Luis Trucking cannot afford to continue
in business. Local 99 needs all of the information requested
below regarding the stated intention to close San Luis Truck-
ing.
1. Financial statements, including Profit and Loss
Statements and Balance Sheets on a monthly, quarterly
and annual basis from January 1, 2003 through November
30, 2005 for San Luis Trucking. If San Luis Trucking is on
a fiscal year other than a calendar year basis, we request
the same information for the fiscal years 2003, 2004 and
2005.
2. All documents showing gross income derived from
delivery and any other services performed by San Luis
Trucking for Factor Sales, Inc., including all of its stores
known as Del Sol Markets, King Market Stores, MaxiMart
Stores, IGA Warehouse Stores and Factor Warehouse, on
a monthly basis from January 1, 2003 through November
30, 2005.
3. All documents showing gross income derived from
delivery and any other services performed by San Luis
Trucking for all other customers of San Luis Trucking on
a monthly basis from January 1, 2003 through November
30, 2005.
4. All correspondence, memoranda, minutes of meet-
ings of the Board of Directors and any other documents
regarding the decision to close the business of San Luis
Trucking and regarding any matter relating to the closure
or potential closure of San Luis Trucking’s business.
5. What is going to happen to all of the facilities and
the equipment, including the trucks, of San Luis Trucking,
if San Luis Trucking does go out of business?
6. What companies or individuals will be performing
services formerly performed by San Luis Trucking for the
various customers of San Luis Trucking, including Factor
Sales, Inc. and all of its stores referred to in paragraph 2
above?
7. What is going to happen to the business licenses of
San Luis Trucking?
8. What severance or other payments are going to be
made to officers, directors and shareholders of San Luis
Trucking if San Luis Trucking ceases its operations?
9. Is San Luis Trucking dissolving as a corporation?
10. Is any other entity going to obtain business li-
censes, property, leases or equipment, including trucks, of
San Luis Trucking? If so, please furnish the name of each
company or individual who is obtaining any of the above
and describe what is being obtained by each such com-
pany.
(GC Exh. 32.) SLT received the Union’s letter, but did not
respond and did not provide any of the requested information.
III. ANALYSIS
A. Single Employer
The determination of whether two or more entities are suffi-
ciently integrated to be deemed a single employer depends on
all of the circumstances of the case. The inquiry focuses on
whether the entities’ total relationship reveals (1) centralized
control of labor relations; (2) common management; (3) interre-
lation of operations; and (4) common ownership. Broadcast
Employees NABET Local 1264 v. Broadcast Service of Mobile,
Inc., 380 U.S. 255 (1965); Flat Dog Productions, Inc., 347
NLRB 1180 (2006). The first three factors are the most signifi-
cant, and the first factor—centralized control of labor rela-
tions—is “of particular importance because it tends to demon-
strate ‘operational integration.’” RBE Electronics of S.D., Inc.,
320 NLRB 80, 80 (1995); Mercy Hospital of Buffalo, 336
NLRB 1282, 1283–1284 (2001). However,
No single factor in the single-employer inquiry is deemed
controlling, nor do all of the factors need to be present in or-
der to support a finding of single-employer status. “Rather,
single-employer status depends on all the circumstances, and
is characterized by the absence of the arm’s-length relation-
ship found between unintegrated entities.”
Flat Dog Productions, Inc., 347 NLRB at 1181–1182 (2006).
“Stated otherwise, the fundamental inquiry is whether there
exists overall control of critical matters at the policy level.”
Emsing’s Supermarket, Inc., 284 NLRB 302, 302 (1987), enfd.
872 F.2d 1279 (7th Cir. 1989).
Centralized control of labor relations. Factor Sales handles
all human resource matters for SLT and maintains all personnel
and employment records for SLT employees. SLT does not
have a human resources department. Factor Sales interviews
applicants for SLT jobs. Factor Sales even assigns employees
to SLT, such as Tenorio, who have not applied for a job at SLT.
SAN LUIS TRUCKING, INC. 227
New employees for Factor Sales and SLT attend the same ori-
entation class. Factor Sales notifies new SLT employees that
Factor Sales has hired them, and that they are required to fol-
low Factor Sales’ policies or Factor Sales will terminate them.
Factor Sales’ employee handbook governs employee conduct
at, and is issued to the employees of, Factor Sales and SLT.
Factor Sales monitors SLT employees’ job performance
throughout their employment. Factor Sales handles workers
compensation and unemployment compensation matters for
SLT employees. Factor Sales coordinates SLT employees’
vacations, conducts exit interviews for SLT employees, and
implements layoffs and discharges of SLT employees. Factor
Sales participated in the collective-bargaining sessions between
SLT and the Union. Factor Sales provides SLT employees with
the same or similar benefits that it provides to Factor Sales
employees, such as participation in company parties and holi-
days, cashing of checks, eligibility for loans, and discounts at
company stores. And, in its monthly newsletter Factorizate,
Factor Sales covered and published articles about SLT employ-
ees in the same manner as it covered and published articles
about Factor Sales employees. All of the circumstances of Fac-
tor Sales and SLT’s operations demonstrate that Factor Sales
centrally controlled the labor relations of the companies.
Valencia supervised all the employees of SLT and SEC. He
also assigned the trips to SLT drivers and SEC drivers. He as-
signed trips within the United States to SEC drivers that would
normally be assigned to SLT drivers. Moreover, among the
SLT trips that Valencia assigned to SEC drivers were trips that
Valencia concealed through the creation and approval of ficti-
tious shipping documents that falsely stated the trips had been
made by MC Freight.
Attempting to determine centralized control of SEC’s labor
relations is rendered more difficult by the fictitious records
created by Valencia, coupled with the Respondents’ failure to
comply with the subpoenas. Nevertheless, the evidence permits
the conclusion that the labor relations of SEC were controlled
by SLT. Moreover, I draw an adverse inference that the Re-
spondents’ subpoenaed records, if they had been produced,
would support the conclusions of centralized control of labor
relations between Factor Sales and SLT, on the one hand, and
SLT and SEC, on the other. McAllister Towing & Transporta-
tion, 341 NLRB 394 (2004); Teamsters Local 776 (Pennsy
Supply), 313 NLRB 1148, 1154 (1994).
Common management. Factor Sales and SLT have the same
officers and directors, all of whom are related, and all of whom
are related to Valencia, who is the general manager of SLT and
SEC. Valencia is also the store coordinator for Factor Sales of
Mexico and a manager at Factor Sales.
Common ownership. Factor Sales owns 100 percent of SLT.
Salcido is the majority owner of Factor Sales and SEC. His
family members own the remaining shares, including Valencia
who is a shareholder of SEC.
Interrelation of operations. Factor Sales operates grocery
stores, and SLT transported grocery goods to Factor Sales
stores and the Factor Sales warehouse. When SLT drivers made
deliveries to the stores, the Factor Sales’ store managers had
and exercised the authority to order the SLT drivers to under-
take certain tasks, such as unloading the trucks and trash re-
moval. SLT’s dispatcher handled the trips for and the fuel ex-
penses of SLT and SEC drivers. SLT’s bookkeeper handled the
shipping documents and invoices for SLT and SEC shipments.
SEC drivers were assigned trips that should have been assigned
to SLT drivers, although these assignments were concealed
through the use of fictitious invoices from MC Freight.
Factor Sales’ accounting department handled the accounting
entries for Factor Sales and SLT. The same accounting firm
prepared the tax returns and financial statements for Factor
Sales and SLT. Zamora, the head of Factor Sales’ accounting
department, Gonzalez, the financial manager for Factor Sales,
and Tere Lugo, an employee in Factor Sales’ human resources
department and the former head of that department, also
worked at SLT’s offices, at least occasionally.
Notwithstanding this evidence, a finding of single-employer
status does not depend on a finding of interrelation of opera-
tions. Flat Dog Productions, Inc., supra; Emsing’s Supermar-
ket, Inc., 284 NLRB 302, 302 (1987), enfd. 872 F.2d 1279 (7th
Cir. 1989).
Single-employer status is characterized by the absence of an
“arm’s-length relationship” between the nominally separate
companies. The absence of an arm’s-length relationship be-
tween Factor Sales and SLT is demonstrated by (1) Factor
Sales allowing SLT to use SLT’s facilities and yard without a
lease and rent free, and (2) Factor Sales’ recurrent loans to
SLT—for payroll, working capital, and to purchase equip-
ment—without documentation or interest. The failure of Factor
Sales and SLT to document the loans and execute a lease is
evidence that the companies did not operate at arm’s length.
Denart Coal Co., 315 NLRB 850, 852 (1994), enfd. 71 F.3d
486 (4th Cir. 1995).
Moreover, Salcido and Factor Sales maintained overall con-
trol of critical matters at the policy level for SLT. All expenses
of SLT were paid over the signatures of Salcido or the joint
signatures of two other Factor Sales managers. Factor Sales
controlled the labor and personnel policies of SLT, as well as
the accounting by SLT of its income and expenses. Factor Sales
accounted for approximately 80 percent of SLT’s business.
Factor Sales participated in the collective-bargaining negotia-
tions between SLT and the Union, even if those negotiations
were used as a stalling tactic until SLT was closed.
SLT and SEC were trucking companies that operated primar-
ily for the benefit of Factor Sales. The only difference in their
business purposes was that SLT was intended to operate in the
United States and SEC was intended to operate in Mexico.
However, in practice, these purposes were blurred with SEC
handling trips within the United States.
Salcido and Factor Sales maintained control of critical mat-
ters at the policy level for SEC. Like SLT, SEC’s expenses
were paid by SLT over the signatures of Salcido or the joint
signatures of two other Factor Sales managers. Moreover, SEC
drivers were substituted for and interchanged with SLT drivers
at the discretion of Valencia. Valencia not only freely exercised
this discretion, but he also concealed his actions through ficti-
tious documents.
In addition, when SLT’s bank account was insufficient to
cover SEC’s expenses, Tenorio or Valencia would obtain the
needed funds from Factor Sales. There is no evidence that such
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD228
loans were documented. The failure of the Respondents to
document the loans and execute a lease is evidence that the
companies did not operate at arm’s length. Denart Coal Co.,
supra. SEC leased all of its trucks from SLT for $300 per
month per truck.
The interrelationship between SLT and SEC’s operations is
convincingly demonstrated by SLT’s practice of offering cus-
tomers the option of choosing whether to receive invoices from
SLT or SEC. This option was given to customers without re-
gard to the company that actually shipped the goods for the
customer. After the customer told SLT, through Tenorio, the
name of the company it wanted to receive an invoice from, SLT
would prepare an invoice on the requested letterhead and send
it to the customer. And, without regard to the invoice, the cus-
tomers sent their payments to SLT. SLT and SEC also used the
same person and procedure in collecting delinquent accounts.
The evidence in this record establishes the existence of the
four single-employer factors for Factor Sales and SLT, as well
as for SLT and SEC. In consideration of all the circumstances
surrounding the ownership, operation, and control of Factor
Sales, SLT, and SEC, the evidence demonstrates, and I con-
clude, that Factor Sales and SLT are single employers, and that
SLT and SEC are single employers.
The General Counsel argues, alternatively, that SEC was the
alter ego of SLT. SLT and SEC operated concurrently. SLT
closed in February 2006, and SEC ceased delivering to the
United States at the same time. SEC remained open in Mexico
until approximately October 2006, within weeks of the start of
the hearing in the present case. However, there is no evidence
that SEC continued to operate in Mexico after SLT’s closing.
The alter ego doctrine is considered, in general, when one em-
ployer succeeds another. The single-employer doctrine is exam-
ined in the case of two ongoing businesses. NLRB v. Hospital
San Rafael, Inc., 42 F.3d 45, 50 (1st Cir. 1994), cert. denied
516 U.S. 927 (1995). SLT and SEC were two ongoing busi-
nesses and are more appropriately considered under the single-
employer doctrine.
B. Interrogations—Section 8(a)(1)
The test for determining whether an unlawful interrogation
has occurred is whether, under all the circumstances, the al-
leged interrogation reasonably tends to restrain, coerce, or in-
terfere with employees in the exercise of rights guaranteed by
the Act. In making this determination, all of the surrounding
circumstances must be considered. Either the words themselves
or the context in which they are used must suggest an element
of coercion or interference. Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. Hotel Employees Union Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). Relevant circumstances
include the background, the time, place, and method of the
interrogation, the nature of the information sought, the person-
nel involved, the known position of the employer, whether the
employee was given assurances that there would be no repri-
sals, whether a valid purpose for the interrogation was commu-
nicated to the employee, the truthfulness of the employee’s
response, and whether the employee is an open union adherent.
Performance Friction Corp., 335 NLRB 1117 (2001), citing
Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964); Rossmore House,
supra; Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
These factors should not be applied mechanically, and the
analysis does not require strict evaluation of each factor. Med-
care Associates, Inc., 330 NLRB 935 (2000).
After the Union won the election in January 2005, Valencia
questioned Quezada about his attitude concerning the Union.
Valencia asked Quezada similar questions, approximately on a
weekly basis, until the end of Quezada’s employment at SLT in
July 2005. There is no evidence that Quezada had, at any time,
disclosed his attitude toward the Union.
These interrogations occurred at the workplace, by the gen-
eral manager of the company, and to an employee who had not
disclosed his attitude toward the Union. The questions solicited
sensitive information, and no assurances were given. Quezada
avoided answering the questions by replying that he just wanted
to keep his job and move forward. In similar circumstances, the
Board has found that interrogations seeking an employee’s
attitude about the union violated Section 8(a)(1) of the Act.
Pleasant Manor Living Center, 324 NLRB 368 (1997). Under
all of the circumstances, Valencia’s questioning of Quezada
was coercive and violated Section 8(a)(1) of the Act.
C. Promulgation of Rule Prohibiting Drivers from
Speaking to Mechanics—Section 8(a)(1) and (5)
When an employer institutes work rules that are “likely to
have a chilling effect on Section 7 rights, the Board may con-
clude that their maintenance is an unfair labor practice, even
absent evidence of enforcement.” Lafayette Park Hotel, 326
NLRB 824, 825 (1998), enf. mem. 203 F.3d 52 (DC Cir. 1999).
A rule prohibiting employees from talking to each other, with-
out regard to working hours or the employees’ own time, is
unlawful. Our Way, Inc., 268 NLRB 394, 394 (1983). A work
rule that is lawful on its face may still be unlawful when the
rule is instituted in response to union activity. City Market, Inc.,
340 NLRB 1260, 1260 (2003).
In June 2005, Valencia told Marquez, a mechanic, that he
was not allowed to speak to the drivers unless Vera was pre-
sent. Valencia also told Aguilera, a driver, that he was not al-
lowed to speak with Marquez. Valencia’s “rule” unlawfully
infringes on the rights of employees to confer about terms and
conditions of employment, and it is likely to have a chilling
effect on Section 7 rights. Moreover, the “rule” was instituted
while the Union and SLT were in the process of negotiating a
collective-bargaining agreement, and the “rule” was limited to
drivers’ discussions with Marquez, an unknown union advo-
cate, without the presence of Vera, a known union adversary.
In addition, drivers were regularly required to speak with the
mechanics so that any problems with the trucks could be prop-
erly addressed. The new rule substantially limited this neces-
sary requirement of the drivers and mechanics’ positions, and
the Respondents have offered no justification for the rule. The
timing and circumstances of the rule show that it was instituted
in response to and as a deterrent to union activity. Accordingly,
SLT’s rule prohibiting Marquez from speaking to drivers unless
in the presence of Vera, and Aguilera from speaking to
Marquez, violates Section 8(a)(1) of the Act.
The Act requires an employer to bargain collectively with
the representative of his employees with respect to terms and
SAN LUIS TRUCKING, INC. 229
conditions of employment. An employer violates Section
8(a)(1) and (5) of the Act by unilaterally, materially, and sub-
stantially changing the employees’ terms and conditions of
employment. Pepsi-Cola Bottling Co., 330 NLRB 900 (2000).
The new work rule imposed by Valencia in June 2005 re-
garding discussions between SLT drivers and a mechanic was
unilaterally imposed and was a material and substantial change
in the conditions of employment. Certainly, in a company
where the drivers must speak to the mechanics for the good of
the equipment and the safety of the drivers, the imposition of a
work rule that limits such conversations to situations where an
antiunion mechanic is present constitutes a substantial and ma-
terial change in the terms and conditions of employment.
The Respondents argue that Valencia’s goal in restricting
conversations between drivers and one mechanic was not im-
proper. This argument ignores the chilling effect of the rule and
the rule’s discrimination between the antiunion mechanic and
the mechanic whose sympathies were unknown. The Respon-
dents also argue that the restriction was imposed on Aguilera to
prevent Aguilera from taking so much of Marquez’ time. This
claim is not credible and is rejected. There is no credible evi-
dence that Aguilera had previously taken much of Marquez’
time in discussing mechanical problems. Moreover, the dis-
criminatory application of the rule and the circumstances sur-
rounding the imposition of the rule demonstrate that the work
rule was not imposed for this alleged purpose, but rather was
imposed for the purpose of restricting employees’ Section 7
activity.
SLT’s rules prohibiting Marquez from speaking to drivers
unless in the presence of Vera and prohibiting Aguilera from
speaking to Marquez violate Section 8(a)(1) and (5) of the Act.
D. Increased Enforcement of Rules Because of Union
Activity—Section 8(a)(1), (3), and (5)
An employer violates Section 8(a)(1) and (3) of the Act
when it increases discipline of its employees or more strictly
enforces its work rules in response to union activities. Dynam-
ics Corp. of America, 286 NLRB 920, 921 (1987), enfd. 928
F.2d 609 (2d Cir. 1991). “If the General Counsel demonstrates
that the pattern of discipline after the commencement of union
activity deviated from the pattern prior to the start of union
activity, a prima facie case of discriminatory motive is estab-
lished requiring the Respondent to show that its increased dis-
cipline was motivated by considerations unrelated to its em-
ployees’ union activities.” Jennie-O Foods, Inc., 301 NLRB
305, 311 (1991).
SLT started issuing discipline and absence reports to its em-
ployees after the Union’s organizing campaign began. More-
over, the frequency of the discipline and absence reports dra-
matically increased after the Union won the election in January
2005. Accordingly, the General Counsel has established a
prima facie case of discriminatory motive in the issuance and
frequency of these reports.
The Respondents assert that SLT did not change its practice
regarding absence and discipline reports after the Union won
the election, but rather, SLT simply continued to apply its pre-
existing policy. In making this argument, the Respondents ig-
nore the uncontradicted evidence that no such reports had been
issued before the start of union activities and that the frequency
of such reports substantially increased after the Union won the
election. The Respondents’ argument is rejected.
The Respondents also contend that the attendance and disci-
plinary matters addressed in the written warnings were merito-
rious, and therefore, SLT had a proper, nondiscriminatory rea-
son for issuing the reports. At the hearing, the employees who
were issued the reports explained why the factual bases for
some of the reports were not true; however, the evidence estab-
lishes that SLT had a factual basis for issuing some, if not
many, of the reports. Nevertheless, whether there were factual
bases for issuing some or many of the reports is not the ques-
tion; the question is why did the frequency of the attendance
and disciplinary reports substantially increase after the Union
won the election. The Respondents presented no credible evi-
dence at the hearing to answer these questions or to meet their
burden in overcoming the General Counsel’s prima facie case.
It may be that before the election none of SLT’s drivers had
been late, or absent, or engaged in poor performance to the
same extent as they had after the Union won the election. But if
that unlikely event were true, the Respondents, who would
possess such information, had the burden of proving it. The
Respondents failed to prove that SLT applied its policy on the
issuance of disciplinary and attendance reports in the same
manner before the Union won the election as it did after the
Union won the election.
For the foregoing reasons, the Respondents unlawfully and
discriminatorily increased the issuance of attendance and disci-
plinary reports to SLT drivers after the Union won the election
in January 2005. These actions violate Section 8(a)(1) and (3)
of the Act.
An employer’s change in the enforcement of attendance and
disciplinary rules represents a change in the employees’ terms
and conditions of employment. Womac Industries, Inc., 238
NLRB 43, 43 (1978). Accordingly, the employer must bargain
with the employees’ representative before instituting such a
change. Hyatt Regency Memphis, 296 NLRB 259, 263–264
(1989), enfd. mem. 944 F.2d 904 (6th Cir. 1991). SLT did not
bargain with the Union before instituting changed and stricter
enforcement of its rules regarding the issuance of attendance
and disciplinary reports. Accordingly, SLT violated Section
8(a)(1) and (5) of the Act.
E. Subcontracting of SLT’s Transportation Services to
Unified—Section 8(a)(1) and (5)
An employer’s decision to subcontract work performed by
bargaining unit members is a mandatory subject of bargaining.
Fibreboard Paper Products v. NLRB, 379 U.S. 203 (1964). On
the other hand, an employer’s economically based decision to
close all or a portion of its business constitutes a change in the
scope and direction of the business. Bargaining over such a
management decision is not mandated unless “the benefit, for
labor-management relations and the collective-bargaining proc-
ess, outweighs the burden placed on the conduct of the busi-
ness.” First National Maintenance Corp. v. NLRB, 452 U.S.
666, 679 (1981).
It is undisputed that the Respondents did not notify or at-
tempt to bargain with the Union concerning their decision to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD230
use Unified instead of SLT to transport grocery goods for Fac-
tor Sales. It is also undisputed that the Respondents did not
close SLT, or any other part of their business, when SLT’s
business was transferred to Unified in July 2005. The question
is whether the Respondents’ decision to use Unified rather than
SLT to transport Factor Sales’ grocery goods was a change in
the scope and direction of the Respondents’ business (and not
subject to mandatory bargaining), or whether the decision was
more akin to subcontracting the work performed by SLT’s
drivers (and, therefore, subject to mandatory bargaining). In
resolving this question, consideration has been given to all of
the circumstances in this record, including the following.
The Respondents’ switch from SLT to Unified did not alter
the basic operations of Factor Sales. Grocery goods were still
transported from Unified to Factor Sales’ stores and warehouse.
See Gaetano & Associates, Inc., 344 NLRB 531, 533 (2005),
enfd. 183 Fed. Appx. 17 (2d Cir. 2006). (“We find that the
subcontracting at issue here involves carpentry [herein, trans-
portation] work previously performed by unit employees and
that the substitution of the subcontractor’s employees for those
of the Respondent did not alter the Respondent’s enterprise.”)
The essential difference in the substitution of Unified for SLT
was the identity of the drivers who transported those grocery
goods. No capital investment was made by or contemplated by
the Respondents in connection with its decision. See Fibre-
board Paper Products, 379 U.S. at 213.
The Respondents have at all times maintained SLT’s trucks
“in a state ready for activation.” Finch, Pruyn & Co., 349
NLRB 270, 276 (2007). Although SLT formally shut down its
operations in February 2006, SLT’s trucks remain parked in the
yard at SLT’s facilities in San Luis, Arizona, facilities that
Factor Sales has allowed SLT to use without cost. Moreover,
Factor Sales has no written agreement with or formal commit-
ment to do business with Unified in the future. Accordingly, the
Respondents could easily return SLT to its former business of
transporting grocery goods for Factor Sales.
The Respondents’ decision to substitute Unified for SLT to
transport grocery goods for Factor Sales was motivated, at least
in part, by labor costs, which are amenable to collective bar-
gaining. This is demonstrated by the Respondents’ reliance on
SLT’s alleged losses as a reason for the transfer of SLT’s busi-
ness to Unified. Dorsey Trailers, Inc., 321 NLRB 616, 616–617
(1996), enf. denied 134 F.3d 125 (3d Cir. 1998); Rock-Tenn
Co., 319 NLRB 1139, 1139 fn. 2 (1995); Furniture Renters of
America, Inc., 311 NLRB 749, 750 (1993), enf. denied 36 F.3d
1240 (3d Cir. 1994) (“labor costs were a factor in the subcon-
tracting decision”).
The Respondents’ contend that their decision to use Unified
in place of SLT was not based on labor costs. However, even if
this contention were true, the Respondents’ duty to bargain
over the decision would remain. Torrington Industries, 307
NLRB 809, 810 (1992). Nevertheless, the Respondents’ con-
tention is belied by the evidence and by the Respondents’ other
contentions in this case. For example, the Respondents contend
that a factor in their decision was work performance by SLT’s
drivers, such as damaged goods and late deliveries, and the
promised work performance of Unified’s drivers, such as re-
turning pallets and assistance in keeping stores clean. (E.g., R.
Posthearing Br. p. 46.) Alleged work performance is a cost of
labor and is amenable to bargaining. Each of these matters re-
lating to work performance could have been negotiated. See
Furniture Renters of America, Inc., 311 NLRB at 750–751.
Instead, neither SLT nor Factor Sales mentioned any of these
factors when the parties met to negotiate a contract in the spring
of 2005.
The Respondents’ contention that the subcontracting of
SLT’s work to Unified was not based on labor costs is also
undermined by the Respondents’ reliance on SLT’s alleged
losses as a reason for the transfer of SLT’s business to Unified.
Certainly, labor costs are a factor, and often a predominant
factor, in operating losses. To the extent that SLT actually in-
curred operating losses (which, as noted above, was not credi-
bly proven by the Respondents), one of the components of such
losses (viz., labor costs) is amenable to bargaining and could
have been negotiated with the Union.
The Respondents’ decision to substitute Unified for SLT to
transport grocery goods for Factor Sales was not a decision to
change the scope and direction of the Respondents’ business.
Essentially the same transportation of grocery goods to Factor
Sales was made before and after July 2005.10 The primary dif-
ference after July 2005 was that different drivers transported
the grocery goods. Accordingly, and for all the foregoing rea-
sons, the Respondents’ substitution of Unified for SLT to
transport Factor Sales’ grocery goods more closely resembles
the type of subcontracting found to be a mandatory subject of
bargaining in Fibreboard than a change in the scope and direc-
tion of the employer’s business found in First National Mainte-
nance Corp. See also Torrington Industries, 307 NLRB at 811.
Moreover, the Respondents’ bald assertion that bargaining
would not have changed their decision to use Unified instead of
SLT to transport Factor Sales’ grocery goods is insufficient to
establish that their decision to subcontract the transportation
was not a mandatory subject of bargaining. Comar, Inc., 349
NLRB 342, 369 (2007) (and cases cited therein).
The Respondents’ subcontracting of SLT’s business to Uni-
fied is essentially the kind of subcontracting involved in Fibre-
board. It is not necessary that the Respondents’ subcontracting
be the same as in Fibreboard for that court’s analysis to apply.
Torrington Industries, 307 NLRB at 810. Indeed, the Board has
recognized that the Supreme Court implicitly used a balancing
test in Fibreboard. Torrington Industries, 307 NLRB at 810,
citing Dubuque Packing Co., 303 NLRB 386 (1991). The Re-
spondents’ decision to replace SLT with Unified to transport
Unified’s grocery goods involved the substitution of one group
of workers for another to perform the same work at the same
locations. In the circumstances of this case, “there is no need to
apply any further tests in order to determine whether the deci-
sion is subject to the statutory duty to bargain. The Supreme

10 The only difference in the transportation of grocery goods in-
volved Factor Sales’ decision to stop purchasing from National Gro-
cers. However, as noted above, the Respondents failed to produce evi-
dence showing the extent or amount of business Factor Sales had pre-
viously done with National Grocers. The Respondents also failed to
produce evidence showing that their decision to subcontract SLT’s
business to Unified caused or furthered their ability to cease purchasing
from National Grocers.
SAN LUIS TRUCKING, INC. 231
Court has already determined that it is.” Torrington Industries,
307 NLRB at 810.
Accordingly, the Respondents’ decision to subcontract or
transfer SLT’s transportation business to Unified was not a
change in the scope and direction of the Respondents’ business.
The decision was not a matter of core entrepreneurial concern
and outside the scope of bargaining. Moreover, the decision
was based, at least in part, on labor costs and performance that
the Respondents could have bargained with the Union. Accord-
ingly, and for all of these reasons, the Respondents’ failure to
notify the Union or bargain with it concerning the decision to
subcontract SLT’s work to Unified violates Section 8(a)(5) and
(1) of the Act.
Alternatively, “it is well established that an employer’s sub-
contracting decision cannot be a legitimate entrepreneurial
decision exempt from bargaining when, as here, antiunion con-
siderations are at the heart of the alleged fundamental change in
the direction of the corporate enterprise.” Joy Recovery Tech-
nology Corp., 320 NLRB 356, 357 fn. 3 (1995), enfd. 134 F.3d
1307 (7th Cir. 1998). Thus, even if the Respondents’ decision
to subcontract SLT’s transportation business to Unified were
deemed to constitute a change in the scope and direction of the
business, the decision would nevertheless be a subject of man-
datory bargaining if it was motivated by antiunion considera-
tions. The evidence demonstrates that the Respondents’ deci-
sion to subcontract SLT’s transportation business to Unified
was motivated by and was in response to the union activities of
SLT’s drivers.11 Accordingly, the Respondents’ failure to notify
the Union or bargain with it concerning the decision to subcon-
tract SLT’s work to Unified violates Section 8(a)(5) and (1) of
the Act.
The General Counsel charges that the Respondents subcon-
tracted unit work to “third-party enterprises” after approxi-
mately March 2005, and that the Respondents violated the Act
by failing to afford the Union an opportunity to bargain over
this mandatory subject of bargaining. (Complaint pars. 7(a),
8(a) and (b).) Putting aside the Respondents’ subcontracting of
unit work to Unified in July 2005, the Respondents had subcon-
tracted to third-party enterprises since approximately 2004, and
on a piecemeal basis, unit work that SLT’s assigned drivers
were, for various reasons, unable to perform.
The General Counsel bears the burden of showing, by a pre-
ponderance of the evidence, that allegedly unlawful subcon-
tracting constituted a material and substantial change in the
Respondents’ practices. Great Western Produce, 299 NLRB
1004, 1009 fn. 2 (1990). There is, of course, no dispute that the
Respondents’ July 2005 subcontracting to Unified constituted a
material and substantial change in the Respondents’ practices.
However, the General Counsel has failed to show that the Re-
spondents’ piecemeal subcontracting to other, third-party enter-
prises after March 2005 was substantially or materially differ-
ent from the Respondents’ piecemeal subcontracting before
March 2005.

11 The unlawful motivation for the Respondents’ decision to subcon-
tract SLT’s transportation business to Unified is also addressed in the
next section.
I realize that the Respondents’ failure to comply with the
General Counsel’s subpoenas prevented the General Counsel
from proving a substantial difference in subcontracting, other
than to Unified, before and after March 2005. Accordingly, an
adverse inference, that the difference in such subcontracting
was substantial, could be appropriate. However, no such ad-
verse inference is made. Where adverse inferences have been in
this decision, the inferences supported and corroborated other
evidence. With respect to the amount of subcontracting before
and after March 2005, there is no other evidence establishing
such amounts that would be corroborated by an adverse infer-
ence. Accordingly, an adverse inference is not made.
Accordingly, the Respondents did not violate Section 8(a)(5)
and (1) of the Act by unilaterally continuing their piecemeal
subcontracting (excluding the July 2005 subcontracting to Uni-
fied) after March 2005.
F. Subcontracting of SLT’s Transportation
Services—Section 8(a)(1) and (3)
An employer violates Section 8(a)(3) and (1) of the Act
when it subcontracts bargaining unit work in response to union
activity. Gaetano & Associates Inc., 344 NLRB 537 (2005),
enfd. 183 Fed. Appx. 17 (2d Cir. 2006). Discriminatory sub-
contracting of work from a bargaining unit has “been found
consistently to violate Section 8(a)(3) when motivated by anti-
union animus.” Lear Siegler, Inc., 295 NLRB 857, 860 (1989).
The question in such cases is the employer’s motivation, and
accordingly, Wright Line guides the analysis. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983). The General
Counsel has the burden of proving by a preponderance of the
evidence that antiunion sentiment was a motivating factor in the
subtracting decision.
If the General Counsel satisfies his initial burden under
Wright Line, the burden then shifts to the employer, in the na-
ture of an affirmative defense, to demonstrate that the same
action would have taken place even in the absence of the pro-
tected conduct. In meeting this burden, the employer cannot
simply state a legitimate reason for the action taken, but rather
must persuade by a preponderance of the evidence that it would
have taken the same action in the absence of the protected ac-
tivity. T & J Trucking Co., 316 NLRB 771, 771 (1995). Never-
theless, the employer’s defense does not fail simply because not
all of the evidence supports it, or even because some evidence
tends to negate it. Merrilat Industries, 307 NLRB 1301, 1303
(1992). The ultimate burden of proving discrimination always
remains with the General Counsel. Wright Line, supra.
Antiunion motivation may be established through direct or
circumstantial evidence. An example of such circumstantial
evidence includes the timing of the decision. “It is well settled
that the timing of an employer’s action in relation to known
union activity can supply reliable and competent evidence of
unlawful motivation.” Davey Roofing, Inc., 341 NLRB 222,
223 (2004). In the present case, Factor Sales met with Unified
and decided to subcontract its transportation work to Unified
shortly after the Union won the election to represent SLT’s
workers. Moreover, Unified’s proposal that Factor Sales ac-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD232
cepted in January 2005 was the same proposal that Factor Sales
had rejected in the spring of 2004. See Lear Siegler, Inc., 295
NLRB 857, 859 (1989) (where the Board noted that the condi-
tions asserted by the Respondent for the transfer of unit work
“existed months before the [] layoffs”).
An employer’s inconsistent explanations for its decision war-
rants an inference that the real reason for its decision is not
among those asserted. Gaetano & Associates Inc., 344 NLRB
at 534 fn. 18, citing Zengel Bros., 298 NLRB 203, 206 (1990).
During the hearing and in its brief, the Respondents assert that
the decision to use Unified for Factor Sales’ transportation
needs was due to several reasons, including the work perform-
ance of SLT’s drivers, which resulted in damaged goods and
late deliveries. However, neither SLT nor Factor Sales ever
disciplined SLT’s drivers for their alleged poor performances.
Moreover, when Factor Sales and SLT met with the Union to
attempt to negotiate a contract, the Respondents did not men-
tion anything concerning the work performance of SLT’s driv-
ers.
The Respondents assert other reasons in support of their de-
cision to subcontract SLT’s work to Unified. These reasons are
listed above under the subheading II,D,5, “Respondents’ ac-
tions after the Union was certified to represent SLT’s employ-
ees—Subcontracting.” As detailed above, these reasons are not
credible and do not support the Respondents’ decision to sub-
contract to Unified. Moreover, two of the reasons—fees for less
than full truckloads and Unified’s price comparisons and spe-
cial prices to its members—are concerned only with the cost of
and fees for Unified’s service. However, the Respondents dis-
avow selecting Unified because of lower costs. (R. Posthearing
Br. p. 25, fn. 3.)12 Thus, the Respondents base their decision, in
part, on the claim that Unified’s fees, while more than SLT’s,
could even have been more expensive. This contrived reason is
not credible or supportable and is rejected.
The direct evidence of antiunion motivation includes Sal-
cido’s statements in May 2004 to SLT and Factor Sales’ em-
ployees. These statements, during a meeting presided over by
Salcido while the Union was attempting to organize the Re-
spondents’ employees, cautioned employees on how they
would vote in the upcoming election for the Union because if
the Union came in to SLT, Salcido would close down SLT the
same way he had closed down one of his other stores. In addi-
tion, the Respondents retained a labor consultant who made a
similar threat to an employee by stating that Salcido had a lot of
money and could close the Company. After the January 2005
election, Salcido told an SLT employee that although the Union
was already at SLT, Salcido would not allow the Union to re-
main there. Salcido said that he would rather close down the
business or close down the trucks. In July 2005, Salcido carried
out his threat to close down SLT’s trucks when he subcon-
tracted the delivery of Factor Sales’ grocery goods to Unified.
In February 2006, he carried out his threat to close SLT.

12 The Respondents do not allege or rely on lower costs or fees of
Unified for the subcontracting decision. Moreover, the Respondents
failed to produce subpoenaed documents relating to such costs and fees.
Accordingly, I conclude that Unified’s fees are more than the fees that
SLT had charged to Factor Sales.
Salcido’s motive for subcontracting the delivery of Factor
Sales grocery goods is displayed in the San Diego meeting with
Unified that Salcido held in September 2005. Salcido requested
the meeting because the Union represented SLT’s employees,
and Salcido was concerned that Unified’s high prices would
disclose that he decided to use Unified in order to avoid using
SLT. Although the Unified representatives assured Salcido that
comparing SLT’s prices with Unified’s price’s was inapt, the
more important point is the reason Salcido called the meeting.
Salcido did not want his subcontracting decision to “appear” as
if he was trying to avoid the Union. Moreover, that Unified
representatives had to tell Salcido, 3 months after Unified re-
placed SLT in transporting Factor Sales’ grocery goods, the
alleged differences in the services provided by Unified over
SLT shows that these differences were not a motivating factor
in Salcido’s decision to subcontract SLT’s work to Unified.
The Respondents subcontracted SLT’s work to Unified be-
cause of and in response to the union activities of SLT’s work-
ers. In addition, the Respondents have not shown that this sub-
contracting decision would have been made in the absence of
such protected activities. Accordingly, the Respondents vio-
lated Section 8(a)(3) and (1) of the Act.
The General Counsel also charges that the Respondents vio-
lated Section 8(a)(3) and (1) of the Act by subcontracting unit
work to third-party enterprises after March 2005. (Complaint,
pars. 7(a), 10.) To the extent this allegation involves the Re-
spondents’ piecemeal subcontracting to companies other than
Unified, the evidence fails to disclose whether such subcon-
tracting substantially changed after March 2005 from the Re-
spondents’ subcontracting practice before March 2005. Accord-
ingly, this charge, insofar as it relates to subcontracting other
than the July 2005 subcontracting to Unified, should be dis-
missed.
G. Constructive Discharges of Quezada, Gonzalez, and
Sandoval—Section 8(a)(1), (3), and (5)
To establish a constructive discharge, two elements must be
proven. First, the Respondents imposed a burden on the em-
ployee, or allowed the burden to prevail, which causes and is
intended to cause a change in working conditions so difficult or
unpleasant as to force the employee to resign; and second, the
burden was imposed because of the employee’s union activi-
ties. Bolivar Tee’s Mfg. Co., 334 NLRB 1145 (2001), enfd. 61
Fed. Appx. 711 (DC Cir. 2003). The withdrawal of job assign-
ments, with its concomitant decrease in pay, is a sufficient bur-
den to force an employee to resign. Ellis Toyota, 266 NLRB
442 (1983).
Sandoval, Gonzalez, and Quezada resigned their jobs at SLT
because of the decreased number of trips and the resulting de-
crease in income after July 1, 2005. Gonzalez and Quezada
resigned in July 2005, and Sandoval resigned in November
2005. The decrease in trips assigned to SLT’s drivers resulted
from the Respondents’ subcontracting of unit work to Unified
in July 2005. This subcontracted work had comprised the ma-
jority of SLT’s business. Thus, the Respondent’s were aware
that subcontracting this work would cut the number of trips and
income of SLT drivers by 50 percent or more. Moreover, this
calamitous drop in SLT’s business was consistent with, and in
SAN LUIS TRUCKING, INC. 233
furtherance of, Salcido’s threats to shut down SLT’s trucks and
shut down SLT’s business if the Union came into SLT.
As discussed above, the Respondents subcontracted SLT’s
bargaining unit work because of and in response to the employ-
ees’ union activities. The Respondents intended to close SLT
after the Union won the election in January 2005. After the
election, Salcido promptly resurrected and agreed to Unified’s
year-old and previously rejected proposal. The subcontracting
of the unit work was the prelude to the Respondents’ central
goal of closing SLT. The Respondents intended to reduce the
income of SLT’s employees, which would cause the employees
to resign, all of which was in furtherance of the Respondents’
intent to close SLT. See Lear Siegler, Inc., 295 NLRB 857
(1989). Accordingly, the Respondents constructively dis-
charged Sandoval, Gonzalez, and Quezada in violation of Sec-
tion 8(a)(3) and (1) of the Act.
As set forth in Section III,D above, the Respondents violated
Section 8(a)(5) and (1) of the Act by unilaterally subcontracting
unit work to Unified without notifying the Union or affording
the Union an opportunity to bargain. And, as set forth in the
present section, this unlawful action was done with the intent to
reduce the employees’ income and force the employees to re-
sign. Sandoval, Gonzalez, and Quezada resigned because of the
decrease in their trips and income after SLT’s transportation
business was subcontracted to Unified. Accordingly, the Re-
spondents constructively discharged Sandoval, Gonzalez, and
Quezada in violation of Section 8(a)(5) and (1) of the Act. Bor-
den, Inc., 308 NLRB 113, 114–115 (1992).
The Respondents contend that Quezada resigned because of
what he thought might happen to SLT’s business in the future,
and, therefore, he did not resign because of an existing burden
placed on him by the Respondents. However, Quezada, like
Gonzalez, resigned in July 2005, after the Respondents subcon-
tracted SLT’s unit work to Unified. Also, Raimundo Salcido
told Quezada that Quezada’s income would be reduced by 50
percent, and this statement precipitated Quezada’s resignation.
The test for determining whether an employee is an agent of
the employer is whether, under all of the circumstances, em-
ployees would reasonably believe that the employee in question
was reflecting company policy and speaking and acting for
management. Waterbed World, 286 NLRB 425, 426–427
(1987), enfd. 974 F.2d 1329 (1st Cir. 1992). Thus, this test is
satisfied when the employee is held out as a conduit for trans-
mitting information from management to other employees.
Cooper Industries, 328 NLRB 145 (1999). Among other rele-
vant circumstances are (1) the position and duties of the em-
ployee, and the context in which the action occurred, Jules V.
Lane, 262 NLRB 118, 119 (1982); (2) whether the conduct is
related to the duties of the employee, Hausner Hard-Chrome of
KY, Inc., 326 NLRB 426 (1998); and (3) whether the conduct
was consistent with other statements or actions of the employer.
Id. at 428. Section 2(13) of the Act provides that “whether the
specific acts performed were actually authorized or subse-
quently ratified shall not be controlling.”
As a dispatcher, Raimundo Salcido assigned trips to the
drivers, coordinated the drivers’ trips, instructed the drivers
when to report for work, and issued written warnings to drivers
who arrived late for work. His statement to Quezada that Qu-
ezada’s income would be reduced by 50 percent was made after
the Respondents had subcontracted unit work to Unified, and
his statement related to Quezada’s duties because the statement
concerned Quezada’s future trips and income. Under all the
circumstances, Raimundo Salcido was acting as the Respon-
dents’ agent when he told Quezada that Quezada’s income
would be reduced by 50 percent. Accordingly, Quezada could
and did reasonably rely on Raimundo Salcido’s statement in
deciding that he could not continue working for SLT with a 50-
percent reduction in income.
The Respondents argue that the record does not contain ade-
quate evidence to support the General Counsel’s claim that
Sandoval, Gonzalez, and Quezada’s hours were reduced.
Sandoval, Gonzalez, and Quezada testified that their hours
were reduced, and corroborative evidence is not necessary be-
cause their testimony is credible. Moreover, the Respondents
failed to provide the subpoenaed, documentary evidence relat-
ing to the hours of these employees (GC Exh. 5, par. 77), and I
infer that such documentary evidence would support the testi-
mony of these employees. Also, Sandoval, Gonzalez, and Qu-
ezada’s testimony concerning their loss of income is consistent
with and supported by SLT’s loss of work to Unified on and
after July 1, 2005.
The Respondents also claim that the record does not contain
adequate evidence to support the claim that the reduction in
hours of SLT’s drivers was caused by subcontracting. This
contention ignores the Respondents’ subcontracting of unit
work to Unified on July 1, 2005, unit work that had constituted
the majority of SLT’s business. If the reduction in hours of
SLT’s drivers was caused by some other reason and not by the
subcontracting of work to Unified, the Respondents failed to
prove the existence and causal effect of this other reason.
H. SLT’s Closure—Section 8(a)(5) and (1)
First National Maintenance Corp. v. NLRB, 452 U.S. 666
(1981), involved an employer that provided maintenance ser-
vices for commercial customers. The employer terminated its
maintenance contract with a third party (Greenpark Care Cen-
ter) solely for economic reasons involving a dispute over its
contractual fee. The terminated contract resulted in the loss of
unit jobs at Greenpark. The question before the Court was
whether the employer was obligated to bargain over its decision
to terminate its contract with Greenpark. The Court adopted a
balancing test, in which the benefit to the collective-bargaining
process is weighed against the burden placed on the conduct of
the business, and held that an employer has no obligation to
bargain over a decision to close a portion of its business solely
for economic reasons. First National Maintenance Corp. v.
NLRB, 452 U.S. at 679, 686.
The Respondents contend that their decision to close SLT
was a “partial closing,” and therefore not a mandatory subject
of bargaining. First National Maintenance Corp. does not sup-
port such a broad proposition. The Supreme Court’s holding
did not apply to any and all “partial closings.” The court ex-
plained the limits of its holding to the specific facts of that case,
including (1) the employer had no intention to move the discon-
tinued operation elsewhere; (2) the employer was motivated
solely by economic considerations involving its fee with the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD234
customer, a matter over which the union had no control; and (3)
the union was not selected as the bargaining representative until
well after the employer’s dispute with the customer arose. First
National Maintenance Corp. v. NLRB, 452 U.S. at 687–688.
These facts do not exist in the present case.
In the present case, the Respondents (1) moved the closed
operation elsewhere by subcontracting it to Unified; (2) were
not motivated solely by economic considerations; and (3) the
Union was selected as the bargaining representative before the
Respondents made their decision to subcontract transportation
services to Unified and before the Respondents decided to close
SLT.
In First National Maintenance Corp., the Court’s balancing
test was struck in favor of the employer, in part, because of the
Court’s view of the union’s purpose in seeking bargaining.
“The union’s practical purpose in participating, however, will
be largely uniform: it will seek to delay or halt the closing.”
452 U.S. at 681. However, in the present case, the Respondents
themselves delayed implementing their decision to close SLT.
The decision to close SLT was first announced on October 19,
2005, but SLT was not closed until February 6, 2006. There
was more than sufficient time to bargain about the Respon-
dents’ decision to close SLT, and the Respondents’ delay in
carrying out its decision mitigates, if not nullifies, the Court’s
presumption of the union’s purpose in seeking a delay.
The Respondents label their decision to close SLT “a basic
change in operations . . . related to the very core of the busi-
ness, i.e., the decision of whether to be in business or to not be
in business.” (R. Posthearing Br. p. 38.) However, the Respon-
dents fail to provide any explanation or analysis for these la-
bels. The decision to close SLT emanated from the Respon-
dents’ decision to use Unified to transport Unified’s goods to
Factor Sales rather than SLT, and this decision was not a basic
change in operations related to the core of the Respondents’
business. Rather, this decision related to which company was
going to transport Unified’s grocery goods to Factor Sales,
Unified or SLT. In turn, this decision was motivated, at least in
part, by labor costs and union animus.
The Respondents contend that the decision to close SLT re-
moved the Respondents from the trucking business, and accord-
ingly, the decision changed the Respondents’ basic operating
structure. (R. Posthearing Br. pp. 40–41.) However, the premise
for that contention simply restates the Respondents’ decision,
viz., the Respondents’ decided to close SLT, after having
eliminated SLT’s business. Merely removing the employer
from the operational aspects of a business is not sufficient to
remove the requirement to bargain concerning the decision. If it
were sufficient, many or most subcontracting decisions would
not be subject to mandatory bargaining, contrary to Fibreboard
Paper Products v. NLRB, 379 U.S. 203 (1964). See Torrington
Industries, 307 NLRB at 810.
The Respondents rely on NLRB v. Adams Dairy, Inc., 350
F.2d 108 (8th Cir. 1965), for the contention that their decision
to use Unified rather than SLT was not a mandatory subject of
bargaining. In Adams Dairy, Inc., the dairy was in the business
of processing and selling milk and other dairy products. Driver-
salesmen employees (the bargaining unit) and independent
contractors handled the dairy’s sales. The independent contrac-
tors bought the products from the dairy for resale to retailers.
The driver-salesmen were paid a commission on each unit they
sold. The use of driver-salesmen placed the dairy at a competi-
tive disadvantage. The dairy changed its distribution system,
without notice to the union, to include only independent con-
tractors and to eliminate the driver-salesmen. The Board held
that the employer’s change in its distribution system was a
mandatory subject of bargaining and that the dairy violated
Section 8(a)(5) and (1) of the Act by failing to bargain concern-
ing that decision.
The Eighth Circuit held that the decision was not a manda-
tory subject of bargaining. The court stated:
In Adams Dairy there is a change in basic operating procedure
in that the dairy liquidated that part of its business handling
distribution of milk products. Unlike the situation in Fibre-
board, there was a change in the capital structure of Adams
Dairy which resulted in a partial liquidation and a recoup of
capital investment.
350 F.2d at 111. The present Respondents did not change their
basic operating procedure when they contracted with Unified to
deliver grocery goods to Factor Sales. Before and after this
decision was effected in July 2005, the Respondents paid a fee
to transport its grocery goods from Unified to Factor Sales.
Before July 2005, the fee was paid to SLT, and after July 2005,
the fee was paid to Unified. Also, the Respondents did not liq-
uidate any part of SLT’s business, while the dairy did liquidate
the company vehicles used by the driver-salesmen and sold the
vehicles to the new independent contractors “in a partial liqui-
dation and a recoup of capital investment.” NLRB v. Adams
Dairy, Inc., 350 F.2d at 110. Moreover, the court relied on the
absence of union animus in the dairy’s decision to change its
distribution system. 350 F.2d at 113; see NLRB v. Adams
Dairy, Inc., 322 F.2d 553, 557–559 (8th Cir. 1963); NLRB v.
Drapery Mfg. Co., 425 F.2d 1026, 1027 (8th Cir. 1970). How-
ever, the present Respondents’ decision to close SLT was moti-
vated by union animus. Accordingly, NLRB v. Adams Dairy,
Inc. is inapposite to the present case.
The Respondents also rely on NLRB v. Drapery Mfg. Co.,
supra. In that case, the owners of the parent company acquired
ownership of the employer for the purpose of having the em-
ployer do work that the parent company had previously subcon-
tracted to a third party. The employer suffered increasing losses
and was closed for economic reasons. After a previous decision
in which the parent company and the employer were held to be
a single employer, the Board held that the employer violated
Section 8(a)(5) of the Act by failing to bargain over the deci-
sion to close. The Eighth Circuit distinguished Fibreboard
Paper Products and relied on Adams Dairy, Inc. in holding that
the Respondents’ decision to close the employer did not require
bargaining. Drapery Mfg. Co. is inapposite because of the fol-
lowing operative facts in that case, which are absent in the pre-
sent case: (1) the capital structure of Drapery was changed
when Drapery’s machinery was dismantled and removed from
the premises; and (2) the decision to close Drapery was moti-
vated solely by economic losses, not union animus.
Accordingly, the Respondents’ decision to close SLT was a
mandatory subject of bargaining, and the Respondents violated
SAN LUIS TRUCKING, INC. 235
Section 8(a)(5) and (1) of the Act by unilaterally making that
decision without bargaining with the Union.
I. SLT’s Closure—Section 8(a)(3) and (1)
SLT’s closure is inexorably associated with the Respon-
dents’ decision to subcontract or transfer SLT’s transportation
business to Unified. SLT’s closure followed its loss of business
to Unified just as surely as night follows day. (Valencia testi-
fied that he spent many days looking for business in Mexico,
but Valencia was not a credible witness, and this testimony in
particular was incredible and implausible. In any event, there is
no evidence that SLT obtained any additional or new business
after its business had been transferred to Unified.) Moreover,
SLT’s closure was the intent and goal for the Respondents’
transfer of SLT’s business to Unified. Accordingly, the same
considerations analyzed in the Respondents’ motivation to sub-
contract SLT’s business to Unified apply equally to the Re-
spondents’ decision to close SLT.
An employer may close his entire business for any reason,
even a discriminatory reason, without violating the Act. Textile
Workers v. Darlington Mfg Co., 380 U.S. 263, 273–274 (1965).
In Darlington, the Court ruled that an employer may terminate
its entire business for any reason, even antiunion animus, with-
out violating the Act. In that case, the employer ceased opera-
tions entirely at the affected plant and sold all the plant’s ma-
chinery and equipment at auction. In the present case, the Re-
spondents have ceased operating SLT, but they have not sold
any of SLT’s trucks or equipment, all of which remain at SLT’s
facilities in San Luis, Arizona, just as when SLT was operating.
In addition, the Respondents’ transfer of the bargaining unit
work to Unified was done without a written contract with Uni-
fied that would obligate the Respondents to continue using
Unified in the future. Thus, the Respondents are able restart
SLT’s operations at any time and for any reason. Accordingly,
Darlington does not insulate the Respondents’ decision to close
SLT from the prohibitions or commands of Section 8 of the
Act. See also Lear Siegler, Inc., 295 NLRB at 860.
“[A] partial closing is an unfair labor practice under § 8(a)(3)
if motivated by a purpose to chill unionism in any of the re-
maining plants of the single employer and if the employer
may reasonably have foreseen that such closing would likely
have that effect.” Textile Workers v. Darlington Mfg Co., 380
U.S. at 275:
If the persons exercising control over a plant that is being
closed for antiunion reasons (1) have an interest in another
business, whether or not affiliated with or engaged in the
same line of commercial activity as the closed plant, of suffi-
cient substantiality to give promise of their reaping a benefit
from the discouragement of unionization in that business; (2)
act to close their plant with the purpose of producing such a
result; and (3) occupy a relationship to the other business
which makes it realistically foreseeable that its employees will
fear that such business will also be closed down if they persist
in organizational activities, we think that an unfair labor prac-
tice has been made out.
380 U.S. at 275–276. Salcido has an interest in a business other
than SLT in which he could benefit from the discouragement of
unionization in that business. Salcido is the owner of Factor
Sales, and the Union was attempting to organize Factor Sales
simultaneously with SLT. The number of employees at Factor
Sales is substantially greater than the number at SLT, and the
organizing effort was longer lasting at Factor Sales. The elec-
tion at Factor Sales was held in March 2005, only 2 months
after the election at SLT. Although the Union did not win the
election at Factor Sales, the NLRB hearing officer recom-
mended sustaining an objection and setting aside the election.
On appeal of the hearing officer’s recommended decision, the
Board overruled the objection and certified the results of the
election. However, the Board’s decision was not issued until
July 31, 2006. Accordingly, the hearing officer’s recommended
decision was pending throughout the period that Salcido sub-
contracted SLT’s unit work in July 2005 and closed SLT in
February 2006.
Moreover, Salcido was well aware of the risks of a second
election because the first election at SLT in July 2004, which
was lost by the Union, was set aside and a second election was
held in January 2005, which was won by the Union. Thus, the
closure of SLT after their employees had voted for the Union
would have a substantial chilling effect on the Factor Sales
employees’ efforts and desire to be represented by a union,
especially with the prospect of a second election at Factor Sales
as there had been at SLT.
The relationships between Factor Sales, SLT, and the em-
ployees of those companies, were interrelated, and it was realis-
tically foreseeable that Factor Sales’ employees would fear that
Factor Sales would be closed down if they persisted in their
organizational activities. SLT drivers often worked with Factor
Sales employees because SLT drivers were subordinate to Fac-
tor Sales’ store managers. The store managers ordered the driv-
ers to unload grocery goods, stock the goods, and dispose of
trash from the stores. Moreover, Factor Sales’ monthly bulletin,
Factorizate, treated Factor Sales and SLT’s employees in the
same manner. SLT was treated like a department of Factor
Sales, and employees of Factor Sales and SLT were equally
entitled to fringe benefits provided by Factor Sales to its em-
ployees, such as loans, credit at stores, performance awards,
and social events sponsored by Factor Sales. The likelihood
that Factor Sales employees would be intimidated by Factor
Sales’ closing of SLT is heightened by Salcido’s threat in May
2004 to SLT employees at Factor Sales’ offices that if the union
came into SLT he would close SLT like he had closed Maxi, a
Factor Sales store.
The remaining consideration is whether the Respondents’
motivation in closing SLT was to chill unionism among the
employees of Factor Sales. As noted above, motivation may be
established through direct or circumstantial evidence. In addi-
tion, “the incidence of one such directly causative antiunion
motive strengthen[s] the probability of a second antiunion pur-
pose-i.e., the ‘chilling’ of remaining employees in the exercise
of their Section 7 rights.” George Lithograph Co., 204 NLRB
431, 431 (1973) (citing Darlington Mfg. Co., 165 NLRB 1074,
1083 (1967)). As discussed above, the Respondents’ closure of
SLT was done in conjunction with the subcontracting of SLT’s
transportation business and pursuant to the Respondents’ plan
to close SLT because of the employees’ election of the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD236
Among the additional factors that may reveal and prove the
proscribed “chilling” motivation are “contemporaneous union
activity at the employer’s remaining facilities, geographic prox-
imity of the employer’s facilities to the closed operation, the
likelihood that employees will learn of the circumstances sur-
rounding the employer’s unlawful conduct through employee
interchange or contact, and, of course, representations made by
the employer’s officials and supervisors to the other employ-
ees.” Bruce Duncan Co., 233 NLRB 1243, 1243 (1977).
There was contemporaneous union activity at Factor Sales
and at SLT throughout the time period in this case. Factor Sales
and SLT are located in the same geographic area of Yuma
County, and both have their main offices in San Luis, Arizona.
There is a strong likelihood that Factor Sales’ employees would
learn of the circumstances surrounding the Respondents’ clos-
ing of SLT. And, during the union’s organizing drive, Salcido
specifically threatened SLT employees, during a meeting at
Factor Sales’ offices, to close SLT like he had previously
closed one of the stores operated by Factor Sales. All of the
circumstances in this case, including the foregoing direct and
circumstantial evidence, demonstrates that the Respondents’
closure of SLT was intended to chill unionism among Factor
Sales’ employees. Accordingly, the Respondents’ closure of
SLT violated Section 8(a)(3) and (1) of the Act.
The Respondents contend that SLT was closed because it
was suffering financial losses. However, SLT’s alleged finan-
cial losses have not been proven in this case, due in part to (1)
the unreliability of the financial statements produced by the
Respondents; (2) the failure of the Respondents to produce
financial and other corroborating documents pursuant to the
General Counsel’s subpoenas; and (3) the method by which the
Respondents maintain their records even if the records had been
produced, including the fact that Factor Sales controls all of
SLT’s finances and keeps all of SLT’s records.
Thus, Factor Sales could change the income and expenses of
SLT to make SLT appear unprofitable without regard to Factor
Sales’ actual operations. And, the willingness of the Respon-
dents to create such false losses is evidenced by Valencia’s
creation of false invoices at SLT relating to trips taken by SEC
drivers. Moreover, the Respondents’ contention that SLT was
closed because of financial losses is undercut by their payment
of higher fees to Unified to transport the goods previously
transported by SLT. Financial considerations did not cause or
guide the decision to close SLT.
The Respondents contention that SLT was closed because of
financial losses is also rejected for the reasons set forth in this
decision, including the Respondents failed to prove through
credible and reliable evidence the losses allegedly suffered by
SLT, and the Respondents transferred the bargaining unit work
for a higher cost than they had previously paid to SLT. See
Service Merchandise Co., 278 NLRB 185, 187 (1986) (“the
Respondent’s claim of economic considerations as being its
impetus in the change to contract carriage is refuted [] by its
apparent disinterest in a precise and actual cost comparison
. . .”), overruled in part on other grounds, Lear Sigler, Inc., 295
NLRB at 861 fn. 24.
The Respondents’ reason for closing SLT is false and pretex-
tual because the reason has not been proven and because the
Respondents did not rely on the reason to close SLT. Accord-
ingly, there is no need to further address the alleged reason
because a finding of pretext “leave[s] intact the inference of
wrongful motive established by the General Counsel.” Lime-
stone Apparel Corp., 255 NLRB 722, 722 (1981). The Respon-
dents’ closure of SLT violated Section 8(a)(3) and (1) of the
Act.
In First National Maintenance Corp., 452 U.S. at 682, the
Supreme Court, citing Darlington Co., stated that “[u]nder §
8(a)(3) the Board may inquire into the motivations behind a
partial closing. An employer may not simply shut down part of
its business and mask its desire to weaken and circumvent the
union by labeling its decision ‘purely economic.’ Even a valid
economic decision to partially close a company may violate
Section 8(a)(3) of the Act if the shutdown is used to inhibit
union activity in the employer’s related business.” Purolator
Armored, Inc. v. NLRB, 764 F.2d 1423, 1429–1430 (11th Cir.
1985), affg. 268 NLRB 1268 (1984) (citing Weather Tamer,
Inc. v. NLRB, 676 F.2d 488, 493 (11th Cir. 1982). Thus, even if
the Respondents had closed SLT for valid economic reasons,
the closure was caused by, and was used to inhibit, union activ-
ity at Factor Sales, another business owned by the Respondents.
Accordingly, the Respondents’ closure of SLT violated Section
8(a)(3) and (1) of the Act.
J. Request for Information—Section 8(a)(5) and (1)
Under Section 8(a)(5) and (1) of the Act, an employer is ob-
ligated to furnish to a union, on request, information that is
relevant and necessary to the union’s role as the exclusive bar-
gaining representative of unit employees. NLRB v. Acme Indus-
trial Co., 385 U.S. 432 (1967). The employer must furnish the
requested information in a timely manner absent a valid de-
fense. Woodland Clinic, 331 NLRB 735, 736–737 (2000).
On December 22, 2005, the Union sent a letter to the Re-
spondents requesting information concerning the Respondents
intention to close SLT. The Respondents received the Union’s
letter, but did not respond and did not provide any of the re-
quested information.
The Respondents do not claim that the requested information
is irrelevant to their decision to close SLT. Indeed, the Union’s
request explicitly refers to the closure decision, and the re-
quested information is certainly relevant to that decision.
Rather, the Respondents contend that they are not required to
provide the requested information to the Union because they
are not obligated to bargain concerning their decision to close
SLT. The Respondents have not proven this defense. As set
forth above, the Respondents are obligated to bargain concern-
ing their decision to close SLT.
A union’s statutorily protected right to information that is
relevant and necessary to the union’s role as the exclusive bar-
gaining representative of unit employees can be waived only in
express terms and not by implication, and the waiver must be in
clear and unmistakable language. Metropolitan Edison Co. v.
NLRB, 460 U.S. 693 (1983); United Technologies Corp., 274
NLRB 504, 507 (1985).
The Respondents contend that the Union waived its right to
inspect the requested information because the Union had not
previously formally requested the financial information, and
SAN LUIS TRUCKING, INC. 237
had failed to request the financial information during the nego-
tiating sessions with SLT and Factor Sales. Thus, the Respon-
dents contend that the Union’s actions constitute a waiver by
implication. Whether the Union’s conduct could possibly be
construed as an implied waiver need not be answered because
the Supreme Court and the Board have rejected the Respon-
dents’ waiver by implication argument. Metropolitan Edison
Co. v. NLRB, supra; United Technologies Corp., supra.
Accordingly, the Respondents are obligated to provide the
Union with the information requested on December 22, 2005,
and their failure to do so is a violation of Section 8(a)(5) and
(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondents, San Luis Trucking, Inc. (SLT) and Fac-
tor Sales, Inc. (Factor Sales), are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Factor Sales and SLT are single employers, and SLT and
Servicios Especializados Del Colorado, S.A. De C.V. (SEC) are
single employers.
3. The Respondents, Factor Sales, SLT, and SEC, are jointly
and severally liable for the unfair labor practices found in this
proceeding.
4. The United Food and Commercial Workers Union, Local
99 (the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
5. The Union is the exclusive representative of the following
employees of the Respondents, which constitutes a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time truck drivers, mechanics,
dispatcher, and accountant assistant employed by the Respon-
dent San Luis Trucking; excluding all other employees,
guards, and supervisors as defined in the Act.
6. The Respondents violated Section 8(a)(1) of the Act by
unlawfully interrogating an employee about the employee’s
position concerning the Union.
7. The Respondents violated Section 8(a)(1) of the Act by in-
stituting a work rule that prohibited an SLT mechanic from
speaking to an SLT driver without the presence of an antiunion
employee.
8. The Respondents violated Section 8(a)(5) and (1) of the
Act by instituting a work rule relating to conversations among
employees without bargaining with the Union.
9. The Respondents violated Section 8(a)(3) and (1) of the
Act by unlawfully enforcing their work rules more strictly in
response to union activities.
10. The Respondents violated Section 8(a)(5) and (1) of the
Act by more strictly enforcing their disciplinary and attendance
rules without bargaining with the Union.
11. The Respondents violated Section 8(a)(5) and (1) of the
Act by subcontracting the transportation business of SLT with-
out bargaining with the Union.
12. The Respondents violated Section 8(a)(3) and (1) of the
Act by unlawfully subcontracting the transportation business of
SLT because of the union activities of SLT’s employees.
13. The Respondents violated Section 8(a)(3) and (1) of the
Act by unlawfully constructively discharging its employees,
Ignacio Sandoval, Jorge Gonzalez, and Jose Quezada.
14. The Respondents violated Section 8(a)(5) and (1) of the
Act by unilaterally closing SLT without bargaining with the
Union.
15. The Respondents violated Section 8(a)(3) and (1) of the
Act by unlawfully closing SLT in order to influence the union
activities of their employees at Factor Sales.
16. The Respondents violated Section 8(a)(5) and (1) of the
Act because the Respondents failed and refused to bargain in
good faith with the Union as the exclusive bargaining represen-
tative of their employees in the above appropriate unit by refus-
ing to provide the Union with the information requested by the
Union in the Union’s letter dated December 22, 2005.
17. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondents unlawfully transferred
the major portion of SLT’s business to Unified Western Gro-
cers (Unified), and later closed SLT and laid off its employees,
I shall recommend that the Respondents be ordered to restore
the status quo ante by reopening SLT, restoring the transferred
business to SLT, and reinstating the employees. I shall further
recommend that restoration of the status quo ante shall revert to
no later than June 30, 2005, before the unlawful transfer of
SLT’s business. This is in accord with established Board policy
that in cases involving discriminatory conduct, the wrongdoer
should bear the responsibility and hardships for the unlawful
action, rather than the innocent victims. Mashkin Freight Lines,
Inc., 272 NLRB 427, 428 (1984). Accordingly, restoration of
the status quo ante is a necessary remedy unless the Respon-
dents prove that restoration would be unduly burdensome. Fi-
breboard Paper Products, 379 U.S. at 216; Lear Sigler, Inc.,
295 NLRB at 861.
The Respondents offered no evidence on the remedy issue of
whether reopening SLT would be unduly burdensome. Never-
theless, the evidence in this case establishes that there would be
no or very little capital outlay in reopening SLT. The Respon-
dents did not sell any of SLT’s trucks or equipment when SLT
closed, all of which remains at SLT’s facilities. Joy Recovery
Technology Corp., 320 NLRB 356, 357 fn. 4 (1995). Moreover,
the Respondents could easily restore to SLT the business they
had unlawfully transferred to Unified because that business
belongs to and is under the control of Factor Sales.
The Respondents contend that SLT operated at a loss in 2005
and 2006, and that the loss was increasing. However, the finan-
cial statements offered by the Respondents to show such losses
were not reliable. Moreover, the Respondents failed to produce
documents pursuant to subpoenas served on them that could
have supported or refuted their financial contentions. In accor-
dance with all of the circumstances, including fictitious records
and the control of SLT’s finances and recordkeeping by Factor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD238
Sales, the Respondents have failed to prove that SLT suffered
operating losses in 2005 and 2006. Finally, the evidence shows
that Factor Sales pays more to Unified for the transportation of
its grocery goods than Factor Sales paid to SLT. Accordingly,
the evidence does not show that reopening SLT would cause
any hardship, let alone an undue hardship, on the Respondents.
Having found that the Respondents unlawfully discharged
SLT employees Ignacio Sandoval, Jorge Gonzalez, and Jose
Quezada, the Respondents must offer them reinstatement and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Having found that the Respondents unlawfully closed SLT
resulting in the layoffs of SLT employees, Jesus Aguilera, An-
tonio Macias, Jose Marquez, Blas Martinez, Raymundo Sal-
cido, Eduardo Siqueiros, Diana Tenorio, and Jose Vera, the
Respondents must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed on
a quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., supra., plus interest as computed in New
Horizons for the Retarded, supra.
Having found that the Respondents have unlawfully refused
to provide relevant information requested by the Union, the
Respondents will be directed to turn over to the Union the re-
quested information described in this decision and which is set
forth in the Union’s letter to Victor Salcido of SLT, and dated
December 22, 2005.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The Respondents, San Luis Trucking, Inc. (SLT), Factor
Sales, Inc. (Factor Sales), San Luis, Arizona, and Servicios
Especializados Del Colorado, S.A. De C.V. (SEC), their offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their position or sup-
port for unions.
(b) Instituting work rules preventing employees from speak-
ing with each other.
(c) Unilaterally instituting work rules concerning employee
conduct without bargaining with the Union.
(d) Enforcing work rules more strictly against employees in
response to the employees’ union activities.
(e) Unilaterally enforcing work rules more strictly without
bargaining with the Union.
(f) Unilaterally transferring or subcontracting the transporta-
tion business of SLT without bargaining with the Union, other

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
than sporadic and individualized subcontracting of the type that
SLT did before July 2005.
(g) Transferring or subcontracting the transportation business
of SLT because of the union activities of SLT’s employees.
(h) Constructively discharging or otherwise discriminating
against any employees because of their union activity and sup-
port.
(i) Unilaterally closing SLT without bargaining with the Un-
ion.
(j) Closing SLT in order to influence employees in their sup-
port for a union at any of the Respondents businesses.
(k) Failing and refusing to bargain in good faith with the Un-
ion as the exclusive bargaining representative of SLT’s em-
ployees by refusing to provide the Union with the information
requested by the Union, and which is set forth in the Union’s
letter to SLT dated December 22, 2005.
(l) 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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind the work rule preventing SLT mechanics from
speaking to SLT drivers without the presence of an antiunion
employee.
(b) Rescind the work rule preventing SLT employees from
speaking with each other.
(c) Remove from the Respondents’ files any reference to the
attendance or conduct of SLT employees during the period
March 8 to November 2005.
(d) Restore to SLT the business that the Respondents trans-
ferred to Unified Grocers on July 1, 2005.
(e) Reopen SLT and restore SLT to its status on June 30,
2005.
(f) Provide and give to the Union all of the information re-
quested by the Union in its letter of December 22, 2005, and as
set forth in this decision.
(g) Within 14 days from the date of the Board’s Order, offer
Ignacio Sandoval, Jorge Gonzalez, Jose Quezada, Jesus Aguil-
era, Antonio Macias, Jose Marquez, Blas Martinez, Raymundo
Salcido, Eduardo Siqueiros, Diana Tenorio, and Jose Vera full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
(h) Make Ignacio Sandoval, Jorge Gonzalez, Jose Quezada,
Jesus Aguilera, Antonio Macias, Jose Marquez, Blas Martinez,
Raymundo Salcido, Eduardo Siqueiros, Diana Tenorio, and
Jose Vera whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of this decision.
(i) Within 14 days from the date of the Board’s Order, re-
move from the Respondents’ 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.
(j) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
SAN LUIS TRUCKING, INC. 239
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(k) Within 14 days after service by the Region, post at its fa-
cility in San Luis, Arizona, copies of the attached notice
marked “Appendix”14 in both English and Spanish. Copies of
the notice, on forms provided by the Regional Director for Re-
gion 28, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, 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 January 2005.
(l) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT coercively question you about your union sup-
port or activities.
WE WILL NOT institute rules prohibiting employees from talk-
ing to each other without the presence of an antiunion em-
ployee.
WE WILL NOT institute rules prohibiting employees from talk-
ing to each other.

14 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.”
WE WILL NOT enforce work rules more strictly in response to
union activities.
WE WILL NOT institute work rules without bargaining with
the Union.
WE WILL NOT enforce work rules more strictly without bar-
gaining with the Union.
WE WILL NOT transfer or subcontract the transportation busi-
ness of San Luis Trucking without bargaining with the Union,
other than sporadic and individualized subcontracting of the
type that we did before July 2005.
WE WILL NOT transfer or subcontract the transportation busi-
ness of San Luis Trucking because of the union activities of
San Luis Trucking’s employees.
WE WILL NOT constructively discharge or otherwise discrimi-
nate against any employees because of their union activity and
support.
WE WILL NOT close San Luis Trucking without bargaining
with the Union.
WE WILL NOT close San Luis Trucking in order to influence
employees in their support for a union at any of our businesses.
WE WILL NOT fail and refuse to bargain in good faith with the
Union as the exclusive bargaining representative of San Luis
Trucking’s employees by refusing to provide the Union with
the information requested by the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL rescind the work rule preventing San Luis Trucking
mechanics from speaking to San Luis Trucking drivers without
the presence of an antiunion employee.
WE WILL rescind the work rule preventing San Luis Trucking
employees from speaking with each other.
WE WILL remove from our files any reference to the atten-
dance or conduct of San Luis Trucking employees during the
period March 8 to November 2005.
WE WILL restore to San Luis Trucking the business that we
transferred to Unified Western Grocers on July 1, 2005.
WE WILL reopen San Luis Trucking and restore San Luis
Trucking to its status on June 30, 2005.
WE WILL provide and give to the Union all of the information
requested by the Union.
WE WILL within 14 days from the date of the Board’s Order,
offer Ignacio Sandoval, Jorge Gonzalez, Jose Quezada, Jesus
Aguilera, Antonio Macias, Jose Marquez, Blas Martinez, Ray-
mundo Salcido, Eduardo Siqueiros, Diana Tenorio, and Jose
Vera full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Ignacio Sandoval, Jorge Gonzalez, Jose Qu-
ezada, Jesus Aguilera, Antonio Macias, Jose Marquez, Blas
Martinez, Raymundo Salcido, Eduardo Siqueiros, Diana Teno-
rio, and Jose Vera whole for any loss of earnings and other
benefits resulting from their discharges, less any net interim
earnings, plus interest.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharges,
and within 3 days thereafter notify the employees in writing
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD240
that this has been done and that the discharges will not be used
against them in any way.
WE WILL within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges of Igna-
cio Sandoval, Jorge Gonzalez, Jose Quezada, Jesus Aguilera,
Antonio Macias, Jose Marquez, Blas Martinez, Raymundo
Salcido, Eduardo Siqueiros, Diana Tenorio, and Jose Vera, and
WE WILL, within 3 days thereafter, notify each of them in writ-
ing that this has been done and that the discharges will not be
used against them in any way.
SAN LUIS TRUCKING, INC.
FACTOR SALES, INC.
SERVICIOS ESPECIALIZADOS DEL COLORADO, S.A. DE
C.V.