Tomatek, Inc.

National Labor Relations Board - Board Decisions

May 8, 2001

333 N.L.R.B. 1350 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1350
Tomatek, Inc. and Graphic Communications Union
District Council No. 2, Local 388M AFL–CIO.
Cases 32–CA–16779 and 32–CA–16876
May 8, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On July 20, 1999, Administrative Law Judge Timothy
D. Nelson issued the attached decision. The General
Counsel filed exceptions and a supporting brief and the
Respondent filed a brief in answer to the General Coun-
sel’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Michelle M. Smith and Olivia Boullt, Esqs., for the General
Counsel.
Fred Long, Esq., of Los Gatos, California, and W. Chris Tho-
mas (American Consulting Group, Inc.), of Costa Mesa,
California, for the Respondent.
Jim Reza, Special Representative, of Fullerton, California, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. This is
an unfair labor practice prosecution against Tomatek, Inc. (the
Respondent), a State of Washington corporation which owns
and operates a tomato processing and bulk-packaging plant in
Firebaugh, Fresno County, California, in the Central Valley.1
The case is rooted in events that took place in and around the
Firebaugh plant during the first 6 months of 1998.2 During this
period, Graphic Communications Union, District Council No.
2, Local 388M, AFL–CIO (the Union) was engaged in the pre-
petition phase of an organizing campaign among the Respon-
dent’s production and maintenance employees, most of whom
were then in seasonal layoff status. The campaign was ulti-
mately successful; the Union won a Board-conducted election
held on September 29, and was soon certified as the exclusive
collective-bargaining representative of those employees.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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 adopting the judge’s decision dismissing the complaint, we note
that while it is undisputed that the Charging Party Union had been
involved in an organizing effort among the Respondent’s employees
since late February 1998, and that alleged discriminatees Jose Lopez
and David Rivera were active in it, there is no credited record evidence
that the Respondent was aware of either the organizational effort or of
Lopez and Rivera’s involvement in protected activities until May 26,
1998, when it received notice of unfair labor practice charges alleging
that Lopez’ discharge and Rivera’s discipline were unlawful.
1 Based on the amended pleadings, I find that during the year before
the complaint issued, the Respondent sold and shipped more than
$50,000 worth of goods directly to customers outside California, and,
therefore, that the Respondent satisfies both the Board’s statutory and
discretionary requirements for asserting jurisdiction.
The prosecution is brought in the name of the General Coun-
sel of the National Labor Relations Board by the Regional Di-
rector for Region 32, who issued a consolidated complaint on
September 25, after investigating charges and amended charges
filed by the Union between May 21 and September 23.3 The
complaint alleges violations of Section 8(a)(3) and (1) of the
National Labor Relations Act. The 8(a)(3) counts allege, in
substance, that the Respondent discriminated against two of its
employees, Jose Lopez and David Rivera, when it admittedly
issued certain disciplinary warnings to them and eventually
discharged them (Lopez on May 18, Rivera on June 5), all al-
legedly because of their activities on the Union’s behalf. The
independent 8(a)(1) counts allege, in substance, that, before
Lopez and Rivera were fired, the Respondent, through named
agents, “interrogated” them repeatedly about their own and
others’ union activities, and—for “retaliatory” reasons—
imposed greater scrutiny” on their “work and/or work habits,”
and “impliedly threatened” Lopez minutes before he was fired.
The Respondent denies all alleged wrongdoing, and avers
that the disciplining and discharging of the two employees were
grounded exclusively in their recent and repeated acts of mis-
conduct. Moreover, the Respondent’s main actors commonly
insist that they did not learn that the Union was conducting an
organizing campaign, or that Lopez and Rivera were involved
with it, until May 26, when a mailed copy of the Union’s initial
charge in this case, filed in the aftermath of Lopez’ dismissal
on May 18, was delivered to the Firebaugh plant.
I heard the trial of the case in Fresno and Clovis, California,
on February 9–11, 1999. I have studied the entire record, in-
cluding the posttrial briefs submitted by counsel for the General
Counsel and the Respondent. Based on pivotal credibility as-
sessments and other considerations amplified below, I will find
no merit to any of the counts in the complaint.
I. PRINCIPAL FINDINGS; AREAS OF DISPUTE4
A. Operations and Hierarchy at the Firebaugh Plant
The Firebaugh plant is equipped to receive, process, bulk-
pack, and ship fresh-harvested tomatoes from California’s Cen-

2 All dates below are in 1998 unless I specify otherwise.
3 The charge in Case 32–CA–16779 was filed on May 21, 1998; the
charge in Case 32–CA–16876 was filed on July 14, and was amended
on September 23, 1998.
4 Except where noted, the findings in this section are based on testi-
mony or other evidence of record that no party or witness has called
into question.
333 NLRB No. 156
TOMATEK, INC. 1351
tral Valley. It is fully operational only during the 3-month to-
mato harvest season, which typically runs from about July 1 to
about October 1. During the season, the plant operates around-
the-clock, on three shifts, using 500–600 production and main-
tenance employees and 20–30 production supervisors. During
the 9-month balance of the year, the plant is basically idle from
a production standpoint, and the working complement shrinks
drastically, usually numbering no more than 80 workers and as
few as 40, all depending on particular needs at any given point.
Most of the work done during the off-season involves mainte-
nance and repair of the production equipment, to ready the
plant for another processing season. Most of the people who do
this get-ready work, such as alleged discriminatees Lopez and
Rivera, are recalled from the ranks of mechanics and mechanic-
assistants who worked in the preceding season.
Robert Waid is the plant manager. He had been installed in
that position in October 1997, after having worked previously
as a plant manager for a different employer, Campbell Soup.
Waid testified that he was charged in his new position with the
responsibility for “turn[ing] the company around . . . to make a
new improved Tomatek.” Waid reported to Steve Arnoldy, the
Respondent’s corporate-level director of operations, who su-
pervised operations conducted not only at Firebaugh, but at a
plant in San Benito, California, where employees were repre-
sented by a union whose identity is not of record. Arnoldy
maintained his own offices at the Respondent’s headquarters in
Hollister, a town located about 100 miles to the west of the
Firebaugh plant. Waid’s immediate subordinate was Assistant
Plant Manager Ron Melkonian, who, in the off-season months,
was responsible for maintenance and special projects. Mainte-
nance Supervisor John Vasquez was Melkonian’s subordinate;
at material times, he was the direct supervisor of Lopez and
Rivera, and of other maintenance workers who had been re-
called in early 1998 to perform get-ready work.
Many of the rank-and-file employees at the plant speak both
Spanish and English, but Spanish is the dominant language on
the plant floor, and most of the transactions described below—
and all those in which Lopez or Rivera were participant—were
conducted in Spanish.5
B. The Union’s Organizing Drive; the Alleged Discrim-
inatees’ Involvement
In late February, the Union began an organizing campaign
among the Firebaugh plant’s employees. Its first goal was to
secure enough signed authorization cards from these workers to
permit it to file a petition for representation election, which it
did some 6 months later, on August 11 (in Case 32–RC–4499) 6

5 Lopez and Rivera speak comfortably only in Spanish, and deliv-
ered all of their testimony in Spanish, through an interpreter. Waid and
Vasquez are English-Spanish bilingual, as are most of the other super-
visors and managers incidentally referred to below. (Melkonian is an
exception.)
6 It is uncertain whether the Union’s goal in the prepetition phase
was simply to get enough cards to satisfy the Board’s minimum admin-
istrative requirement—a “30 percent showing-of-interest”—for proc-
essing a petition for an election, or whether it had more ambitious aims
for its pre-petition drive. In any case, I take notice that when a union
seeks certification as the representative of a plantwide unit of employ-
leading to its September 29 election victory and its certifica-
tion. When the campaign began in late February, most of the
500-plus employees who would eventually vote in the election
were still in layoff status and awaiting recall in the next season,
but many still resided in or around Firebaugh and could be
contacted at their homes.
Jose Lopez and David Rivera first began working at the plant
more than 8 years before they were discharged. Their employ-
ment during the intervening years followed the seasonal pat-
terns described above. At times that concern us, Lopez was
classified as a mechanic and Rivera as a mechanic-assistant.
They were laid off at the end of the 1997 season in October,
and were recalled in early 1998 (Rivera on January 2, Lopez on
January 28), as were other workers in maintenance classifica-
tions. During the cold months lasting through March, Lopez
and Rivera worked inside the plant on maintenance tasks. In
April, they were assigned to work together on a common out-
side project, in the “pit” area, which occupied them until they
were discharged. They were both among the relatively small
group of maintenance employees who had participated in the
Union’s organizing drive since its inception, on February 21,
when the Union’s representative, Frank Reza, first met with an
initial cadre of four supporters and began to plan the campaign.
C. Disciplinary Warnings and Discharges
1. Warnings to Lopez prior to May 18
Plant Manager Waid was personally and directly involved in
the discharges of both Lopez and Rivera, and in many of the
events that led up to these actions. Waid had issued a written
disciplinary warning to Lopez on May 1, for being “out of his
work area talking to another employee-wasting time.” Waid
had also noted on the warning (which Lopez refused to sign)
that “[t]his has happened on more than one occasion[,]” and
that “any further violation of company rules could lead to dis-
ciplanary [sic] action up to and including termination.” Waid
testified that the underlying incident had occurred on April 30,
when Waid had seen Lopez talking to employee Arcelia Posas
at her work station within the processing plant, and had scolded
Lopez and sent him back to his own (outside) worksite. Lopez
does not dispute that the incident occurred, but testified that he
was in the area only because he had just returned from the plant
bathroom, and had merely paused to exchange brief greetings
with Posas when Waid appeared.
Waid, explaining his notation on the warning that “this has
happened more than once,” testified, in substance, as follows:
The first such prior incident occurred on March 6, when Waid
received a phone call in his office from employee Randy Pre-
ciado, who complained that Lopez was interfering with his
work and creating a safety hazard as Preciado was unloading
equipment from a truck in an outside area called the boneyard.
Waid left his office and found Lopez still in the boneyard (his

ees in a seasonal industry, it is the Board’s policy to conduct the elec-
tion at or near the peak of the season, when the largest number of unit
employees will be on the job and thus easily able to vote in an onsite
election. See, e.g., Baumer Foods, Inc., 190 NLRB 690 (1967); Indus-
trial Forestry Assn., 222 NLRB 295 (1976); and Case-Swayne Co., 209
NLRB 1069, 1070 (1974).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1352
assigned work area then was inside the plant, on the dicer line)
and asked Lopez what was going on. Lopez replied, “nothing,”
and walked away, into the plant. Waid then asked Preciado
what had happened, and Preciado stated that Lopez had been
getting in the way of the unloading and trying to tell Preciado
how to do his job. Waid testified that he soon instructed Main-
tenance Foreman Vasquez to find out why Lopez had been out
of his work area. However, there is no evidence that Vasquez
ever followed up. The second prior incident, according to
Waid, occurred on April 29, when Waid saw Lopez inside the
processing plant, talking to employee Robert Cormona. (Lopez’
work area by this point was outside the processing plant, in the
“pit” area.) Waid states that he walked up to Lopez and Cor-
mona and asked Lopez what was going on. Lopez said he was
“borrowing a tool.” Waid rejoined, incredulously, “A tool,
here?” Lopez quickly replied, “there’s no problem, I’m leav-
ing[,]” and then walked away.
Lopez claimed not to “recall” either prior incident. Were it
important to the outcome, I would credit Waid, who impressed
me as a careful and candid witness with a good memory for
details and context, over Lopez, whose testimony overall
lacked these qualities, and struck me, moreover, as largely
shaped for self-serving purposes. However, I don’t think it
matters to the outcome, for I will find, as further discussed
below, that the General Counsel has failed to establish that
Waid or any other company actor was aware of Lopez’ or
Rivera’s union activities during the period in question. In any
case, neither of the pre-April 30 incidents described by Waid
had resulted in the issuance of a written disciplinary warning to
Lopez.
On or about either May 6 or 12, Assistant Plant Manager
Melkonian remonstrated with Lopez for smoking in the bath-
room of the processing plant. (Lopez, acknowledging that
smoking in the bathroom or in any other area within the plant
was against well-publicized company rules, testified, neverthe-
less, that he was not guilty of the offense that had occasioned
Melkonian’s warning.7) Melkonian told Waid about the inci-
dent within a day after it occurred, and agreed to prepare a
memorandum of the incident for insertion into Lopez’ person-
nel file. In fact, Melkonian did not write such a memo until
May 28, 10 days after Lopez had been discharged. His explana-
tion for the delay is that it slipped his mind until Waid later
reminded him—after Lopez’ dismissal—that he needed to bring
the paperwork pertaining to Lopez up to date.
2. May 18 incidents; discharge of Lopez; discipline of Rivera
Waid testified that he reached a decision to discharge Lopez
on May 18, after observing him involved with Rivera in two
more incidents of perceived “goofing off” that day, as follows:
In the first incident, occurring around midmorning, Waid used a
telephone located on the plant floor to answer a call from a
former colleague at Campbell Soup. While on the phone, he

7 I don’t find it necessary to decide whether Lopez’ claim of inno-
cence was truthful. In any case, I would find, relying on the harmonious
accounts of Melkonian and lead mechanic Bobby Contreras, that these
company agents had good reason to believe, and did, in fact believe,
that Lopez was guilty—indeed, that Lopez had admitted to the offense
when first confronted by Melkonian.
observed Lopez and Rivera engaging in jocular conversation
and doing no work, a pattern that continued for upwards of
another 25 minutes. After Waid got off the phone, he walked
over to the duo, angrily asked what was going on and why they
weren’t working, received answers that he rejected as “non-
sense,” and then scolded them for “wasting time.” (Lopez’ and
Rivera’s versions of the same incident were perfunctory and
vague, but not inharmonious with Waid’s own, more detailed
and quite credible account.)
At about 1:50 p.m. on the same day, says Waid, he was on an
elevated perch inspecting evaporators when he observed Lopez
and Rivera standing idly and talking near the conveyor that
they were supposed to be working on. This continued for about
2 minutes, following which the two walked away together, past
the maintenance shop, after which Waid lost sight of them. At
this point, according to Waid, minutes still remained before the
start of the afternoon break at 2 p.m., which is marked by the
sounding of a horn. (Lopez and Rivera told a variant version, in
which they claim that Lopez left first, went to the maintenance
shop to sharpen a drill bit, and was soon joined by Rivera, who
had just dulled his second, and only remaining drill bit. How-
ever, the break horn sounded at about this point, following
which the two went outside to a designated smoking area.)
Waid states that he did not see the two workers again until they
returned to the conveyor area, some minutes after the second
horn sounded marking the end of the break. Then, says Waid,
he watched with growing irritation as the two continued to
converse for another 2 minutes without doing any work. Waid
then left his perch and went to his office and called Vasquez,
who reported that he had observed Lopez and Rivera overstay-
ing their break and had told them to get back to work. Regard-
ing this, Vasquez independently testified that, about 3 minutes
after the end-of-break horn had sounded, he had found Lopez
and Rivera near the smoking area, still engaged in conversation
with several other mechanics who (unlike Lopez and Rivera)
were assigned to work in that general area. Vasquez states he
told Lopez and Rivera that they should get back to their own
work area, and that they initially balked, causing Vasquez to
repeat his instruction. Then they complied, but only after Lopez
had accused Vasquez (in Spanish, as in all other surrounding
transactions) of “fucking with [or “screwing with”] me.”
Lopez and Rivera acknowledged that Vasquez had con-
fronted them at or shortly after the point when the end-of-break
horn sounded, while they were still talking to a group of fellow
mechanics near the break area. Moreover, although Vasquez
denies it, Lopez and Rivera testified, in substance, that during
this latter confrontation Vasquez made remarks to the effect
that they “would need a good lawyer,” and that they were “be-
ing watched,” or that the “boss was watching” them. However,
Jose Luis Rosales, one of the other mechanics in the area at the
time, recalled this differently when called as the General Coun-
sel’s witness. He testified that Vasquez told Lopez and Rivera
that they should “leave” because Waid was “waiting for them”
in their “work area.” Were it important, I would find, consistent
with both Vasquez’ and Rosales’ accounts, that Vasquez never
said anything to Lopez and/or Rivera about needing a lawyer,
or that they were being watched. Again, however, I see no need
to resolve the disputes and discrepancies. The alleged remarks
TOMATEK, INC. 1353
of Vasquez, even if made as described by Rivera or Lopez,
would not necessarily, nor even probably, imply that any
“watching” was being done in “retaliation” for Lopez’ and
Rivera’s union activities, which, so far as the credible record
otherwise shows, were yet unknown to Vasquez, Waid, or any
other company agents.
There is no dispute that, soon after the two workers returned
from their afternoon break, Waid first summoned Lopez to his
office and told him he was being discharged. After this was
done, Waid called Rivera to his office, told him he had just
fired Lopez, and criticized Rivera for his own role with Lopez
in the alleged offenses that day. Noting Rivera’s “clean record”
to date, however, Waid said that he had decided in his case to
issue a written disciplinary warning. The written warning to
Rivera stated that “termination” would be the “next disciplinary
step proposed.” Waid also told Rivera that he would be in a
“probationary” status for the next 6 months. No one said any-
thing about union activities during either of the May 18 disci-
plinary sessions.
3. Admitted company knowledge of union activities on May 26
Waid, Vasquez, and other company agents involved in the
various transaction described above and below, commonly
testified that they were entirely unaware that the Union had
begun an organizing campaign, much less that Lopez or Rivera
were involved, until after the just-described events of May 18.
(As I discuss in the next section, the only direct evidence indi-
cating that any of these actors had earlier knowledge of union
activities is to be found in Lopez’ and Rivera’s disputed testi-
mony that Vasquez repeatedly questioned them about these
things prior to May 18.) Specifically, the company actors har-
moniously stated that it was not until Tuesday, May 26, that
they learned of the Union’s campaign, and of Lopez’ and
Rivera’s involvement, when a mailed copy of the Union’s ini-
tial charge (naming both employees as the victims of 8(a)(3)
discrimination8) arrived at the Firebaugh plant and was quickly
circulated through the ranks of management.9 Setting aside the
question whether the arrival of the Union’s charge marked the
first instance of management knowledge, I regard it as highly
probable, and I therefore find, that the charge did not reach the
Firebaugh plant until May 26.10

8 The initial charge stated, “Within the past six months the employer
has disciplined David Rivera and disciplined and discharged Jose Lo-
pez in retaliation for their union activity.”
9 Waid testified, after consulting his activity log, that he first saw a
copy of the charge on May 26, shortly after it had been received at the
plant in a mailing addressed to Vasquez, who had opened it and then
brought it to Waid’s attention. Vasquez corroborates this account.
10 The formal papers show that this charge was filed on (Thursday)
May 21, then served by mail from the Regional Office in Oakland on
(Friday) May 22. The charge form shows that the Union had named
Maintenance Supervisor Vasquez as the company representative to
contact, and had written in the address of the Firebaugh plant as the
Employer’s mailing address.
I take notice that this mailing probably would not have been deliv-
ered to the Firebaugh plant (some 170 miles from Oakland) as early as
the next day, Saturday, May 23, and definitely would not have been
delivered on Sunday, May 24, nor on Monday, May 25, which was the
designated date for observing Memorial Day. Thus, consistent with
4. Events on June 3, 4, and 5; the discharge of Rivera
On June 3 (see next footnote), Rivera took a lunch break in
his car in the plant parking lot. At or soon after the point when
the plant horn sounded signaling the end of the break, Rivera
emerged from his car and urinated near the edge of the parking
lot before returning to his work area. Roman Pardo, a produc-
tion supervisor, saw this as Pardo was himself exiting the lot in
his own car.11 (Rivera states he took pains to be discreet, by
“shielding” himself from general view behind a workmate’s
van. Pardo claims that Rivera urinated in plain view, unshielded
by anything.) Pardo confronted Rivera about the incident later
on June 3. Rivera explained that his need to urinate had been
urgent, and had amounted to an “emergency.” Pardo also men-
tioned the incident to Vasquez, who separately queried Rivera,
and received from him essentially the same, “emergency” ex-
cuse. As Rivera acknowledges, Vasquez remonstrated that
“[this is] a food plant; that can’t be done.”
At the start of work the next morning, June 4, Pardo reported
the incident to Waid. Waid then conferred with Josefa Price,
who recently had been hired as the human resources manager
for the Firebaugh plant. Price and Waid agreed that Rivera’s
conduct had been “disgusting” and could alone warrant his
dismissal, as a violation of plant sanitation rules. (Waid, noting
the general importance of maintaining sanitary conditions at the
food-processing plant, placed special emphasis on the potential
injury to the plant’s reputation for sanitation if a visiting cus-
tomer or other outsider were to witness an employee urinating
anywhere on the plant premises, except in a bathroom.) Price
counseled, however, that they should first question Rivera to
determine whether he suffered from any medical condition that
might have prevented him from simply walking to the nearest
available bathroom to relieve himself. (The nearest bathroom
was in the administration building, less than 100 yards away,
which also housed the shipping and receiving office; the next
nearest was on the floor of the processing plant, no more than
200 yards away.) Waid then called Rivera to his office where,
in Price’s presence, Waid confronted him over the incident,
asking why he hadn’t used one of the bathrooms. Rivera again
described his need to urinate in terms of an “emergency.” Price
asked if Rivera had any pertinent medical disability; Rivera
said he didn’t. Waid asked if Rivera had ever seen anyone else
urinate in the parking lot, and Rivera replied that he hadn’t.12
Waid emphasized again that urinating openly in or around the
food plant was prohibited. Waid then told Rivera he was being

Waid’s testimony, it is independently probable that the mailed charge
would not have reached the Firebaugh plant until Tuesday, May 26.
11 Rivera uniquely recalled that the urinating incident, and the disci-
plinary suspension he received from Waid (infra), both occurred on the
same day, i.e., June 4. I rely on Pardo, who states that he saw Rivera
urinating on June 3, but didn’t report the incident to Waid until the
morning of June 4, as further described below. In addition, I note that
the June 4-dated disciplinary suspension notice that Rivera admits he
was shown by Waid on June 4 refers to Rivera’s having “urinated in the
front parking lot yesterday @12:30pm.”
12 On the witness stand, explaining his admitted response to Waid’s
query, Rivera asserted that he had, in fact, seen one or more truck driv-
ers urinate on the ground on one or more prior occasions, but did not so
advise Waid because he didn’t want to get anyone else in trouble.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1354
suspended pending a final judgment as to whether Rivera
should be dismissed, and directed Rivera to return to the plant
the next day at 1 p.m., to learn his fate. Waid also showed
Rivera an already-completed disciplinary suspension form,
which Rivera refused to sign.13
Later on June 4, Waid called Chris Thomas, an attorney em-
ployed by the Respondent’s labor relations counseling firm,
American Consulting Group, Inc. Waid was admittedly aware
by then through the Union’s initial charge, received on May 26,
that Rivera was somehow involved in activities on behalf of the
Union. He had already consulted with Thomas after receiving
that charge, and he called him again on June 4 to get advice
about whether he could lawfully terminate Rivera in the light of
the most recent incident. Thomas counseled that Waid could,
indeed, lawfully terminate Rivera. Waid then called corporate
headquarters and made arrangements for them to prepare and
transmit a final paycheck for Rivera in time for his followup
meeting on June 5.
On June 5, Rivera reported to Waid at 1 p.m., accompanied
by several other mechanics who stated that they wished to be
present to witness the meeting. Waid told the others that they
could not participate but that he would meet later on a one-on-
one basis with any of them who wanted to voice any complaints
or concerns. The others left, and Waid then ushered Rivera into
an office where they were joined by Price. Waid told Rivera
that he had decided to discharge him, and handed him his final
paycheck. Rivera vowed to continue to work to bring the Union
into the plant, and asserted that the Union was backed by “400”
employees. Waid stated that Rivera was free to do what he
wanted and that the Union had nothing to do with the decision
to fire him.
II. PRINCIPAL ANALYSES AND CONCLUSIONS
The consolidated complaint deserves a more specific review:
It alleges that the Respondent disciplined and discharged Lopez
and Rivera because they had “joined or assisted the Union or
engaged in other protected concerted activities.”14 The com-
plaint further charges that Vasquez committed independent
violations of Section 8(a)(1) when, “[o]n numerous occasions
during March through June 1998, [he] interrogated employees
[referring to Lopez and Rivera] concerning their and other em-
ployees’ union activities.” In addition, the complaint charges
that Vasquez violated Section 8(a)(1) when, “[o]n or about May
18, 1988, [he] told an employee [Lopez] that Respondent was
‘watching him’ and impliedly threatened [Lopez] with termina-
tion or other unspecified retaliation by telling him that he

13 In a narrative description on the form of the “reason” for the no-
tice, Waid had cited Rivera’s urinating in the parking lot as “clearly a
violation of house rule #11—immoral conduct or indecency.”
14 There is no evidence that Lopez or Rivera “engaged in any ‘pro-
tected concerted activities’ at any times material to this case beyond
their having “joined and assisted the Union.” Moreover, the other
counts in the complaint alleging “retaliation” against Lopez and Rivera
identify only their “union activities” as the spur for the alleged retalia-
tion. Accordingly, the alternative reference in the quoted paragraph of
the complaint to “other protected concerted activities” supposedly
engaged in by Lopez or Rivera appears to be an empty and merely
ritualistic exercise in pleading.
would ‘need a good attorney,’ in retaliation for said employee’s
union activities.” Finally, the complaint alleges that the Re-
spondent violated Section 8(a)(1) when, “beginning in March
1998 and continuing through May 1998,” Vasquez “and/or”
Plant Manager Waid “imposed greater scrutiny of employees’
[Lopez’ and Rivera’s] work and/or work habits, in retaliation
for their union activities.”
The merits of the 8(a)(3) counts “turn on employer motiva-
tion,” and for that reason will require an analysis according to
the teachings of Wright Line.15 The same is necessarily true of
the 8(a)(1) counts alleging that “retaliation” for their union
activities figured motivationally in Vasquez’ “and/or” Waid’s
alleged “greater scrutiny” of Lopez and Rivera before their
discharges, and in Vasquez’ alleged “implied threat” to Lopez
on May 18. Indeed, the only count in the complaint that does
not “turn” on the Respondent’s motivations for taking the chal-
lenged actions is the one alleging that, “[o]n numerous occa-
sions during March through June,” Vasquez “interrogated [Lo-
pez and Rivera] concerning their and other employees’ union
activities.”
The General Counsel’s threshold burden under Wright Line
was to make a “prima facie showing sufficient to support the
inference” that the various complained-of actions taken by the
Respondent against Lopez and Rivera were “motivated,” at
least in part, by their activities on behalf of the Union. More-
over, despite the potential confusion introduced by the expres-
sion prima facie showing, the Board has always recognized that
the General Counsel’s burden is actually an ultimate burden of
“persuasion” on the motivating-factor element, 16 requiring that
the prosecution establish this element by a “preponderance” of
the credible evidence in the record as a whole.17
15 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). There, the Board stated cen-
trally (251 NLRB at 1089):
[W]e shall henceforth employ the following causation test in all cases
alleging violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, we shall require that the Gen-
eral Counsel make a prima facie showing sufficient to support the in-
ference that protected conduct was a ‘motivating factor’ in the em-
ployer’s decision. Once this is established, the burden will shift to the
employer to demonstrate that the same action would have taken place
even in the absence of the protected conduct.
And see NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), affirming Wright Line’s analytical scheme.
16 See Manno Electric, 321 NLRB 278, 280 fn.12 (1996), discussing
the District of Columbia Circuit’s opinion in Southwest Merchandising
Corp. v. NLRB, 53 F.3d 1334, 1339–1340 (1995), and the Supreme
Court’s decision in Office of Workers’ Compensation v. Greenwich
Collieries, 512 U.S. 267 (1994). See also Schaeff Inc. v. NLRB, 113
F.3d 264, 267 fn. 5 (D.C. Cir. 1997), suggesting that the practical effect
of Greenwich Collieries, supra, may be no more than the abandonment
of the expression “prima facie case” to describe the General Counsel’s
burden under Wright Line.
17 The Board made it clear in Wright Line itself that the General
Counsel’s burden is actually one that remains with the prosecution
throughout the trial, and does not shift. 251 NLRB at 1088 fn. 11. The
Supreme Court likewise so held in approving Wright Line’s analytical
scheme in Transportation Management, observing in the process that
the General Counsel’s burden requires proof of the “motivating-factor”
TOMATEK, INC. 1355
What does it take to satisfy the General Counsel’s threshold
burden in a Wright Line case? The Board did not purport to
answer this question categorically in Wright Line, but a general
answer is nearly explicit in the decision’s text—any credited
evidence that would “support the inference” that an employee’s
union or other protected activities figured in the employer’s
motives for acting against the employee. However, even though
a variety of forms of proof are capable of supporting the infer-
ence, the Board’s precedents make it clear that certain facts or
conditions must necessarily be shown to exist before the Board
will infer that the employer’s action was tainted by an unlawful
motive. Thus, to take the most obvious example, it is axiomatic
that the employer could not have been “motivated” by the em-
ployee’s protected activity if the employer didn’t know about
any such activity. Accordingly, credible proof of “knowledge”
is a necessary part of the General Counsel’s threshold burden,
and without it, the complaint cannot survive.18
Although knowledge of protected activity is a necessary part
of the General Counsel’s prima facie showing, proof of such
knowledge is not alone sufficient to carry the prosecution’s
burden. Rather, something more is required before an inference
may be drawn that an employer’s action against an employee
was motivated by the employee’s protected activity. The
“something more” is proof of “animus,” i.e., credited evidence
showing not only that the employer knew of the protected
activity, but viewed it with a hostile eye. Indeed, animus is
another “requisite element” of the General Counsel’s threshold
burden under Wright Line, and, even where knowledge has
been established, the failure to make a credited showing of
animus will likewise warrant dismissal of the complaint.19
Accordingly, in a case requiring a Wright Line analysis, be-
fore any burden will be said to have “shifted” to the employer,
the trier-of-fact must first be satisfied that the credited record
establishes, at a minimum, the existence of both knowledge and
animus. And in this case, these requirements mean that the
General Counsel must have credibly established that the Re-
spondent, (a) knew or believed before taking each of the com-
plained-of actions against Lopez and Rivera that they were
engaged in organizing activities for the Union, and (b) that the
Respondent was hostile to those activities. If the General Coun-
sel satisfies the prosecution’s burden of persuasion as to the
motivating-factor element (with its key subelements of knowl-
edge and animus), then—and only then—does Wright Line
contemplate that the Respondent, to “escape liability,” would
have to “demonstrate” that it would have taken the same ac-
tions against Lopez and Rivera even absent their activities for
the Union.
As I have noted, the Respondent’s actors harmoniously testi-
fied that their first knowledge of the Union’s campaign, and of
Lopez’ and Rivera’s involvement in it, came when the Union’s

element by a “preponderance.” 462 U.S. at 395, 398–399. And see
Manno Electric, supra at fn. 12, reaffirming this understanding.
18 Stanford Linear Accelerator Center, 328 NLRB 464 fn. 1 (1999).
(“Without this knowledge, there is no basis for finding that there was a
prima facie case of discriminatory conduct.”) See also, e.g., American
Postal Workers (Postal Service), 278 NLRB 751, 752753 (1986).
19 See, e.g., Columbian Distribution Services, 320 NLRB 1068 at
1070–1071 (1996).
initial charge arrived at the plant on May 26. Each of these
witnesses testified about these and other material events in a
straightforward way, and each told a coherent and plausible
story. Clearly, to credit them as to their lack of earlier knowl-
edge would doom the General Counsel’s attacks on any actions
allegedly taken against either Lopez or Rivera prior to May 26,
and the only question remaining open for consideration would
be whether Rivera’s dismissal on June 5 was motivated by the
Respondent’s admitted, recently gained knowledge of his role
in the Union’s still-nascent campaign.
Virtually all of the evidence to the contrary—that the Re-
spondent did have far earlier knowledge—comes from the
mouths of Lopez and Rivera. Each of them testified, in sub-
stance, that he was repeatedly approached by Maintenance
Foreman Vasquez—always separately, and always on the heels
of one of the organizing meetings held in early March through
May—and that in each case Vasquez would question him about
the meeting of the preceding day. Moreover, according to Lo-
pez and Rivera, a near ritual would repeat itself during each
such episode: At the start of the work shift at 7 a.m., as the
maintenance employees were gathering their tools in the main-
tenance shop, Vasquez would approach either Lopez or Rivera
(always alone), ask how the “meeting” on the preceding day
had gone, and follow-up with an inquiry about the numbers of
employees in attendance, or whether the Union was getting
good “support.” Lopez or Rivera would invariably reply when
so questioned that the meeting had gone just fine, and yes, the
Union was getting lots of support. At least as important, virtu-
ally all the evidence offered to support the employer-animus
element comes from the same testimony, which is also the basis
for the “numerous interrogations” count in the complaint. How-
ever, Vasquez, in addition to claiming not to have known until
May 26 of any organizing activities for the Union, flatly and
specifically denied having had any such prior conversations
with either Lopez or Rivera. Clearly, therefore, the resolution
of this credibility dispute is not merely important, but pivotal,
when it comes to making ultimate judgments about the merits
of each of the counts in the complaint.
The General Counsel bore the burden of establishing the
credibility of either Lopez or Rivera over that of Vasquez as to
the existence of any such alleged “interrogations” about “meet-
ings.” If the factors favoring the credibility of either Lopez or
Rivera as to any such alleged transaction are in equipoise with
factors favoring Vasquez’ denials of the same transactions, the
alleged interrogations cannot be found to have occurred. More-
over, to the extent that the General Counsel’s burden of show-
ing knowledge or animus depends on a finding that the alleged
interrogations actually occurred, a failure to credit Lopez and
Rivera on this point would necessarily doom the balance of the
General Counsel’s claims. My ultimate assessment is that
Vasquez was distinctly more credible in denying that he ques-
tioned either Lopez or Rivera about “meetings” than was either
employee in claiming to the contrary. Indeed, on these key
points of conflict, the testimonial claims of Lopez and Rivera
struck me as not simply improbable in their own terms, but, in
their manner of delivery, positively artificial.
My discrediting of Lopez and Rivera as to the supposed
“numerous interrogations” by Vasquez amounts to a rejection
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1356
of the central evidence relied on by the General Counsel to
demonstrate the early existence of company knowledge that the
two workers were involved in activities for the Union.20 Indeed,
for reasons elaborated below, my credibility resolution leaves
me with a record that fails to show company knowledge on any
date earlier than May 26, when the Respondent admittedly
learned, through receipt of the Union’s charge, that Lopez and
Rivera were somehow involved in activities on the Union’s
behalf.
It is clear that the admitted evidence of knowledge by May
26 cannot sustain the General Counsel’s burden with respect to
counts attacking the pre-May 18 warnings to Lopez or his May
18 discharge. Nor will it aid the General Counsel in proving
that the May 18 disciplining of Rivera was infected by knowl-
edge of Rivera’s activities for the Union. The same is necessar-
ily true of counts in the complaint alleging that Vasquez
“and/or” Waid, acting for unlawfully “retaliatory” reasons,
engaged in “greater scrutiny of the work and/or work habits” of
Lopez and Rivera prior to May 26. (Ditto for the claim that, on
May 18, minutes before Lopez was fired, Vasquez “impliedly
threatened” Lopez “in retaliation for his union activities.”) Fi-
nally, although the Respondent’s actors admittedly knew by
May 26 that Rivera was somehow involved in activities for the
Union, it remained in that case for the General Counsel to es-
tablish that the Respondent bore hostility to such activities. And
my discrediting of Lopez and Rivera as to alleged “interroga-
tions” by Vasquez requires me to judge that the “essential ele-
ment” of animus remains unproved even in the latter case.
I will dismiss the independent 8(a)(1) count alleging “nu-
merous interrogations” based simply on my judgment that Lo-
pez and Rivera lacked credibility. Moreover, because I remain
unpersuaded by the other circumstances invoked by the General
Counsel as independently establishing either pre-May 26
knowledge or animus at any point in time, I will dismiss the
8(a)(3) counts and the remaining 8(a)(1) counts for want of a
“prima facie” case, as Wright Line uses that expression. Ac-
cordingly, I will dismiss the consolidated complaint in its en-
tirety. Finally, because the burden of “escap[ing] liability” for
its admitted disciplining and discharging of Lopez and Rivera
never shifted to the Respondent, I will not reach the question
whether the Respondent made a showing that would satisfy suc
a burden.
III. SUPPLEMENTAL FINDINGS AND DISCUSSION
A. Lopez’ and Rivera’s Prior Involvement in Unsuccessful
Campaigns by the Teamsters in 1995 and 1996
1. Facts
On August 31, 1995, Teamsters Local 746 (the Teamsters)
lost a Board election (Case 32–RC–4051) held among the Re-

20 The General Counsel invokes a variety of other circumstantial fac-
tors as independently pointing toward the existence of early company
knowledge of the alleged discriminatees’ activities for the Union. As I
further discuss when I revisit these points below, none of the cited
“independent” factors is persuasive evidence of such knowledge in
itself, and in attempting to make the whole of them greater than the
sum of their parts, the General Counsel has been required to posit the
existence of collateral scenarios that are themselves wholly speculative.
spondent’s production and maintenance employees at the Fire-
baugh plant during the peak of the season. Rivera was a partici-
pant in the preelection organizing campaign and served as an
election observer for the Teamsters. After the election, the
Teamsters filed objections and unfair labor practice charges
(Cases 32–CA–14936 and 32–CA–14940). However, following
10 days of consolidated hearing in March–April 1996 before
Administrative Law Judge James M. Kennedy, the parties set-
tled these cases.
As part of the settlement agreement approved by Judge Ken-
nedy, the Board conducted a rerun election on August 15, 1996,
which the Teamsters again lost, receiving 256 votes while 329
ballots were cast against Teamsters representation. Rivera again
participated in preelection organizing and served as a Team-
sters observer in the rerun election. The Teamsters again filed
objections and new unfair labor practice charges (Case 32–CA–
15650). The Regional Director issued a new complaint pursuant
to these charges and consolidated the objections case with the
complaint case for purposes of hearing. A hearing was held in
those cases in March–April 1997, this time before Administra-
tive Law Judge Gerald A. Wacknov.
During the trial before Judge Wacknov, the General Counsel
adduced testimony from seven employee-witnesses who were
active Teamsters supporters during the prererun election cam-
paign. They each testified that one or more agents of the Re-
spondent (none of them plant-level supervisors or managers),
made one or more coercive pre-election statements. Jose Lopez
was one of these witnesses; he testified, in substance, that Op-
erations Director Arnoldy had implied to him and a group of
about five other mechanics that they could expect improved
benefits if the Teamsters lost the election. Judge Wacknov is-
sued a decision and order on June 5, 1997 (JD(SF)–53–-97)
dismissing the complaint in its entirety, recommending that the
objections be overruled, and that the Board issue a certification
of results. Judge Wacknov did not credit Lopez or any of the
other pro-Teamsters employee witnesses as to critical features
of their testimonial accounts. (Regarding Lopez’ account, for
example, Judge Wacknov found Arnoldy’s counterversion
more credible, and judged that “Lopez . . . simply misunder-
stood what Arnoldy was attempting to convey.” Id. at 12–13.)
No party filed exceptions to Judge Wacknov’s decision, and on
July 17, 1997, the Board entered orders dismissing the com-
plaint, overruling the objections, and certifying that the Team-
sters had failed to receive a majority vote. 21
2. The significance, if any, of these facts
In the argument section of the prosecution brief (at pp. 14–
16), counsel for the General Counsel devotes an extensive
amount of attention to the subject of Lopez’ and Rivera’s in-
volvement in the failed Teamsters campaigns of 1995 and
1996, placing particular emphasis on the Respondent’s pre-
21 During this trial, counsel for the General Counsel represented that
the General Counsel filed exceptions to Judge Wacknov’s decision. The
Board’s July 17, 1997 Order and Certification of Results of Election
states otherwise; it recites that “no statement of exceptions hav[e] been
filed with the Board, and the time allowed for such filing h[as] ex-
pired[.]” Relying on the text of the Board’s Order, I judge that the
General Counsel’s representation was mistaken.
TOMATEK, INC. 1357
sumed knowledge of their pro-Teamsters activities. Thus, the
General Counsel states in a central passage: “[T]he law pre-
sumes that the existence of knowledge of past union support
and activities continues into the future unless shown other-
wise.”22 And counsel adds, portentously, that “Respondent
presented absolutely no evidence to indicate that its knowledge
of Lopez’ and Rivera’s past union [i.e. Teamsters] support no
longer existed.” Oddly, though, the General Counsel does not
specifically identify or explain how the (unremarkable) “pre-
sumption” in question (or the Respondent’s failure to “rebut” it)
might be significant to this case. In the absence of explication, I
can only assume that the prosecution intends to implant the
suggestion, without ever expressing it forthrightly, that the
Respondent’s disciplining and discharges of Lopez and Rivera
in 1998 were motivated (somehow) by the Respondent’s
knowledge of the two mechanics’ support for the Teamsters in
1995 and 1996. As I discuss next, I regard this suggestion as
not just curious in terms of the General Counsel’s overall pur-
pose, but far-fetched in terms of its motivational likelihood, and
overall, as simply a red herring.
For starters, the suggestion leaves me wondering what it may
imply about the General Counsel’s theory of prosecution. Is the
General Counsel trying to argue, perhaps, that the “knowledge”
element in this case is satisfied merely by invoking a presump-
tion that the Respondent was aware of the pro-Teamsters roles
played by Lopez and Rivera in 1995–1996? If so, such an ar-
gument would plainly exceed any claims made in the com-
plaint, and would even amount to an attempt, sub silentio, to
amend the complaint. For the complaint alleges simply that the
Respondent took actions against Rivera and Lopez in 1998
because of their activities (in 1998) on behalf of “the Union”
(which is defined in the complaint as the Graphic Communica-
tions Union), not because of their 1995 and 1996 activities on
behalf of the Teamsters, a labor organization which is nowhere
referred to in the complaint. Is the General Counsel perhaps
claiming more modestly, instead, that if the Respondent knew
early on about the Union’s 1998 organizing campaign, its pre-
sumed knowledge that Lopez and Rivera had favored the
Teamsters in 1995–1996 would have caused it to suspect that
they would favor the Union in the 1998 campaign, as well? If
so, then the General Counsel would still have to concede that
the prosecution’s burden of showing “knowledge” at least re-
quired proof that the Respondent was generally aware of the
1998 campaign by the Union before it took complained-of ac-
tions against Lopez and Rivera. And then one would have to
wonder why the General Counsel would resort to such an at-
tenuated argument when the very proof centrally relied on by
the prosecution to show general knowledge of the 1998 cam-

22 The General Counsel’s formulation of what “the law presumes” is
an adaptation of Administrative Law Judge Richard Linton’s observa-
tion in Lampi, L.L.C., 327 NLRB 222 (1998), that “[t]he law presumes
that the existence of an established fact continues into the future unless
shown otherwise.” It’s worth remembering, however, that where
“knowledge” of something is concerned, the “presumption” under
discussion is hardly the product of elevated or abstruse legal reasoning,
but a simple expression of common sense: If you knew something once,
I will presume that you still knew it later, unless you can persuade me
that you forgot it in the meantime.
paign—the testimony of Lopez and Rivera about alleged “inter-
rogations” by Vasquez in the months prior to their discharges—
also would establish, if credited, that the Respondent was spe-
cifically aware of Lopez’ and Rivera’s 1998 activities on behalf
of the Union. Thus, if Lopez and Rivera were credited as to the
alleged “numerous interrogations,” it would clearly be super-
fluous to emphasize a presumption that the Respondent was
also aware of their 1995–1996 support for the Teamsters. And,
if, as I have found, Lopez and Rivera were not believable in
their claims about such prior interrogations, then it would not
add a speck of weight to the prosecution case that the Respon-
dent might be presumed to have been aware, at least, that they
had supported the Teamsters in previous years.
In any event, I regard it as wholly unlikely on this record that
the pro-Teamsters activities of Lopez and Rivera in 1995–1996
would have had any motivational connection to the Respon-
dent’s decisions to discipline and discharge them in 1998. For
one thing, the record is utterly lacking in any evidence that the
Respondent was hostile to those activities; therefore, the Gen-
eral Counsel’s suggestion fails for want of proof of animus.
Beyond that, so far as this record shows, the Teamsters had
disappeared from the scene after losing the 1996 rerun election.
Therefore, the Respondent’s (presumed) knowledge that Lopez
and Rivera were among the many workers who had supported
the Teamsters (more than 250 workers had cast ballots for the
Teamsters in the 1996 election) would not be likely to have
influenced its treatment of them nearly 2 years later. Signifi-
cantly, moreover, none of the other pro-Teamsters activists in
the 1995 and 1996 campaigns are alleged to have been the vic-
tims of later unlawful discrimination at the Respondent’s hands.
In sum, despite the General Counsel’s implicit suggestions to
the contrary, even if the Respondent might be presumed to have
been aware that Lopez and Rivera had been Teamsters adher-
ents in 1995 and 1996, this presumption would not genuinely
help the prosecution meet its threshold burden in this case.
B. Rivera’s and Lopez’ Participation During the Early Months
of the Union’s Campaign
The Union’s constituency consists mainly of workers in
plants that manufacture corrugated boxes and other packaging
materials. Sometime in February 1998, about 18 months after
the Teamsters had lost the 1996 rerun election, the Union’s
representative, Jim Reza, learned from a union member at an-
other plant that some mechanics at the Firebaugh plant were
interested in making another try at getting union representation.
Reza checked with his superiors in the Union, and got clearance
to get in touch with these workers for purposes of starting an
organizing drive. What follows are my findings regarding the
timing and sequence of organizing events that occurred over the
course of the next few months, and the roles played by Lopez,
Rivera, and others in those events.23
23 I rely primarily on Union Agent Reza’s systematic recollection of
these matters of timing and sequence, partly supplemented by that of
Pedro Flores, another mechanic involved in the Union’s organizing
drive from the start. Rivera’s testimony about timing and sequence was
roughly consistent with Reza’s, but less distinct in some cases. Lopez
showed more than a little confusion on these points, especially when he
was haphazardly called upon by the General Counsel to integrate the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1358
On Saturday, February 21, Reza met with four maintenance
employees then working at the Firebaugh plant, Lopez, Rivera,
Pedro Flores, and Lupe Baeza. The February 21 meeting began
at a gas station in Firebaugh; however, because It was cold, the
group soon retreated to Lopez’ apartment, where they began to
plan a new campaign.
On Thursday, March 5, Reza, joined by the Union’s organiz-
ing director, Frank Martinez, conducted a second meeting with
the original group of four employees, plus two additional me-
chanics from the plant, Salvador Flores and Juan Velasquez.
This meeting took place in a restaurant in Firebaugh called the
Pizza Factory. It started in the late afternoon. Reza invited the
six workers to order pizza and beer, and they talked, ate, and
drank at a table in the restaurant for more than an hour. Later in
the meeting, some members of the group noticed the presence
of Lucy Borboa, who was then in layoff status, but who, during
the season, served as a supervisor over about 75 “sorting la-
dies” who worked the day shift. Borboa was also Rivera’s next-
door neighbor at the time, and she was familiar to at least one
other mechanic in the prounion party, Pedro Flores. According
to Rivera and Flores, Borboa made eye contact with one or
more members of the group while waiting for a pizza order, but
there were no words or other gestures of recognition between
her and anyone in the prounion group. (Borboa, called to the
witness stand by the General Counsel, but never examined by
either party regarding her presence on March 5 in the Pizza
Factory, testified on examination from the bench that she regu-
larly patronized the Pizza Factory, and often encountered
groups of other plant workers gathered there, but that she had
no particular recollection of being there on or about March 5, or
of having noticed the presence of the group in question on any
of the many occasions when she admittedly patronized that
restaurant. She also testified that she did not become aware that
the Union was trying to organize at the plant until some point
after the Union filed the petition for election on August 11, and
that she first saw Reza’s face only in December 1998, months
after the Union’s election victory.) For present purposes, I ac-
cept the testimony of Reza, Rivera and Flores that Borboa was,
indeed, present in the Pizza Factory at one point during the
Union gathering on March 5. However, for reasons I will am-
plify when I revisit the “knowledge” issue, I will reject as in-
volving the rankest form of speculation at every level the Gen-
eral Counsel’s attempts to have me find that Borboa, despite
her denials, (a) took special notice of the group as she waited
for her pizza order; (b) apprehended, somehow, that the group
was assembled for a union-organizing purpose; (c) had a gen-
eral “propensity” to inform her superiors about union organiz-
ing activities; and, therefore, (d) must have reported her (pre-
sumed) Pizza Factory observations and conclusions to higher-
level company officials soon after the event.
On April 2, Reza came to Rivera’s home and met there with
Rivera, Lopez, Pedro Flores, Lupe Baeza, and another em-
ployee whom Rivera identified as “Fernando Chicale or some-

meeting schedules into his accounts of the timing of the alleged inter-
rogations by Vasquez. Accordingly, I give scant weight to any of his
accounts about timing or sequence that may vary from Reza’s testi-
mony.
thing like that.” In addition, on or about April 19, Reza con-
ducted another meeting with the cadre members at Rivera’s
home, where the group gathered in Rivera’s backyard patio.24
The Union did not conduct another “public” gathering until
Sunday, April 26, when it conducted a meeting at the VFW
Hall in Firebaugh, attended by from 30–50 workers, including
Rivera, Lopez, and others who had participated in prior meet-
ings. Both Lopez and Rivera spoke up for the Union during the
meeting. (Although the General Counsel focussed her inquiries
on the activities of Lopez and Rivera at the meeting, I deem it
reasonable to assume that other members of the original cadre
likewise “spoke up.”)
Between the March 5 sitdown at the Pizza Factory and the
April 26 gathering at the VFW hall, Lopez, Rivera, and other
cadre members had already gone to workers’ homes in Fire-
baugh and nearby communities and had solicited many of them
to sign authorization cards. During the April 2 meeting in
Rivera’s home, Reza had collected about 80 signed cards from
him. (Between them, Lopez and Rivera claim to have secured
about 140 authorization cards by early April. Assuming that
these numbers were not exaggerated, or did not borrow on the
efforts of others, they clearly suggest that many, if not most of
Rivera’s and Lopez’ card-solicitation contacts by then were
with seasonal workers still awaiting recall for the summer proc-
essing season.) Both Lopez and Rivera testified that they also
engaged at uncertain points during these months in unspecified
organizing activities in or near the plant. Even if credited, this
testimony is too vague to permit a finding as to whether or not
these activities “were conducted in such a manner, or at times
that in the normal course of events the Respondent must have
known about them.”25
The last public meeting held by the Union prior to Lopez’
discharge occurred on or about Thursday, May 7, in a park in
Firebaugh. No more than 50 plant workers attended, including
Lopez, Rivera, and, again, others in the initial cadre. Lopez and
Rivera again spoke up in some manner.
Another such meeting was held on Thursday, May 21, three
days after Lopez was fired, and the same day that the Union
filed the initial charge herein, alleging that, “[w]ithin the past
six months the employer has disciplined David Rivera and dis-
ciplined and discharged Jose Lopez in retaliation for their union
activity.” This latter meeting took place at a Catholic church in
Mendota, a community near Firebaugh where many plant
workers also lived, and was again attended by no more than 50
workers, including Lopez, Rivera, and others in the original
group. Lopez and Rivera again spoke up.
C. The Alleged Interrogations
I have already recorded my ultimate judgment regarding
Vasquez’ alleged interrogations of Lopez and Rivera in the
24 This is the list of April 2 attendees as reported by Rivera, who did
not recall (as did Reza) that another meeting took place at his house on
April 19. At p. 7 of her brief, counsel for the General Counsel has
somewhat arbitrarily taken Rivera’s list of attendees at the April 2
meeting as the list of attendees at the April 19 meeting. In fact, Reza’s
testimony about the April 19 meeting does not clearly indicate who was
present on that occasion, other than Lopez and Rivera.
25 Hadley Mfg. Corp., 108 NLRB 1641, 1659 (1954).
TOMATEK, INC. 1359
months before each was fired: I am not persuaded that any such
questioning ever took place, not even once. I have already
noted my ultimate reason for reaching this judgment: Vasquez
was more convincing in denying that any such event ever oc-
curred than was either Lopez or Rivera in claiming to the con-
trary. Considerations of witness demeanor are influential in
these judgments. Admittedly, however, “demeanor” can be a
rather ineffable and subjective consideration. (The same de-
meanoral cue that leads one judge to draw a positive or nega-
tive inference about the truthfulness of a witness could be quite
uninfluential in another judge’s assessment of the same wit-
ness.) Here, my negative assessment of the demeanoral credi-
bility of Lopez and Rivera has hardly anything to do with any
personal mannerisms or expressions or tics they might have
displayed at any given moment in their testimony; rather, it has
to do with their overall style and manner of testifying—the
reflexively pat way they usually responded to important exami-
nations, their common tendency to lapse into vague and gener-
alized forms of description, even when called upon to answer
specific questions about specific events or alleged events, and
their frequent eagerness to interject their own private conclu-
sions and speculations about the motivations underlying the
behavior of various company actors.
Their stories also suffered from improbability. As I have
noted, both Lopez and Rivera claim that Vasquez approached
each of them separately on the heels of several (perhaps all) of
the organizing meetings held in early March through May, and
in each case would ask them in nearly identical terms how the
“meeting” had gone, and whether it had been well-attended,
following which Lopez or Rivera would invariably reply that
the meeting had gone just fine, and lots of employees were
backing the Union. The brief and virtually identical nature of
each of the supposed exchanges alone makes me suspicious. If
Vasquez had, indeed, learned (somehow) about each of the
Union’s meetings, and were, indeed, bent on gathering useful
intelligence concerning them, it seems unlikely that his ques-
tioning—and Lopez’ or Rivera’s replies—would have taken on
the near-ritual quality that both Lopez and Rivera have de-
picted. Moreover, when counsel for the General Counsel or
anyone else asked either witness for details associated with a
particular alleged instance of questioning by Vasquez, each
invariably replied in terms of what Vasquez “would” generally
do, strongly implying that each witness had no genuine mem-
ory of the particular incident sought to be developed. Indeed,
when a witness claims generally that such events have repeat-
edly occurred, but shows, as did Lopez and Rivera, an utter
inability to recall any of the inevitable nuances or variances in
the particulars of any given exchange, this invites the interpre-
tation that the witness has no genuine memory of any of the
supposed exchanges, but is rotely adhering to a prearranged
story while keeping it vague enough to avoid the chance of
particularized contradiction.
A related set of additional considerations likewise causes me
to regard Lopez’ and Rivera’s accounts as improbable: It is
difficult to accept that Vasquez would have repeatedly ques-
tioned the alleged discriminatees about union meetings without
ever having been overheard by any other mechanics present at
the same time in the shop, or without Vasquez ever having
questioned any of the other mechanics about the same matters.
Thus, none of the other mechanics who were shown to have
been among the Union’s early supporters (a list that includes at
least Pedro Flores, Salvador Flores, Lupe Baeza, Juan
Velasquez, and Fernando “Chicale”) claims to have been the
target of any interrogations by Vasquez, even though Vasquez
supervised all of them, and even though they, too, had attended
many or all of the Union’s meetings in the March through May
period. Beyond that, I find it suspicious that Lopez and Rivera
invariably testified that other mechanics present in the mainte-
nance shop were always out of earshot whenever Vasquez
would question either of them about Union meetings26 (These
others included employees Pedro Flores and Jose Luis Rosales,
who were called by the General Counsel to testify about differ-
ent matters, but were never asked whether they had been privy
to any such alleged interrogations, much less whether they had
themselves been the targets of interrogations.)
Suspicions like these were only exacerbated by the confus-
ing, haphazard, and often quite leading and suggestive manner
employed by counsel for the General Counsel to elicit testi-
mony concerning the timing and details of the supposed inter-
rogations. The examination of Lopez created a hodge-podge of
versions, leaving it to anyone’s guess when, according to Lo-
pez, the first instance of such alleged questioning might have
occurred. (Depending on which portion of his testimony you
focus your examination, you could conclude that the first inter-
rogation occurred in “March,” after the March 5 Pizza Factory
meeting,27 or (b) in “April,” after either the April 19 meeting in
Rivera’s backyard patio, or the April 26 gathering at the VFW
hall, or (c) perhaps in May, after the May 7 meeting in the Fire-
baugh park.) Moreover, in one version that was seemingly en-
couraged by counsel for the General Counsel even though she
knew or should have known that it could not have been true in
the light of her other evidence, Lopez was even heard to say
that Vasquez questioned him at work on the day after the meet-
ing at the Mendota church, a meeting which, as everyone
agrees, occurred on May 21, 3 days after Lopez was fired.28

26 I find it suspiciously convenient that both Lopez and Rivera al-
ways claimed to have been questioned separately, and alone, by
Vasquez. This, of course, eliminated any possibility that either of them
might fail to corroborate the other, or, worse still, might contradict any
version either might choose to adopt at any given moment during his
examination. It also eliminated the possibility that other mechanics in
the shop with less of a stake in the outcome of the case would fail to
corroborate, or would contradict, either or both of them.
27 On brief, the General Counsel appears to ignore any suggestions in
Lopez’ accounts that imply an interrogation by Vasquez in March, in
the aftermath of the Pizza Factory meeting. Thus, at p. 8, she identifies
the “very next day” after the April 26 meeting at the VFW hall as the
first of the occasions on which Vasquez questioned Lopez or Rivera.
Exactly why she has implicitly rejected Lopez’ claims as to an earlier
interrogation in March is left unstated. And her seeming abandonment
of the claim is made independently curious by her elaborate attempts
elsewhere to establish, nevertheless, that Borboa, based on her presence
in the Pizza Factory on March 5, must have been the first source of the
Respondent’s knowledge of union organizing.
28 On brief, the General Counsel ignores Lopez’ clearly erroneous
testimony about a supposed interrogation by Vasquez on the “day after”
the Mendota church meeting, except to say (at p. 23) that Lopez was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1360
Thus, although Lopez was certain that Vasquez had again ques-
tioned him after that meeting, he was certainly wrong, and his
reckless insistence on the point led me to think, again, that he
was simply trying to adhere, however clumsily, to a pre-
arranged story, according to which every meeting was followed
by an inquiry from Vasquez the first thing the next morning.
Rivera, too, was led by the General Counsel’s questioning to
state that Vasquez first questioned him the morning after the
April 26 meeting at the VFW hall, and continued to question
him on the morning after virtually every subsequent meeting
prior to Rivera’s June 5 dismissal. Absent such steering, I have
no confidence that Rivera would have independently so re-
called the timing and sequence. And considering the woodenly
rote quality of his supposed recollections of the contents of
each of the supposed interrogations, I again have no confidence
that he was testifying from any genuine memory.
These suspicions lead me ultimately to the following ques-
tions: First: if Vasquez did have the kind of high-speed intelli-
gence about Lopez’ and Rivera’s participation in the Union’s
meetings that is necessarily implied by their various claims,
why would Vasquez bother to “interrogate” Lopez, Rivera (or

“confused about the dates of the union meetings in May.” In fact, he
was obviously “confused” not merely about the dates, but about the
locations and sequences of meetings both in April and May. Moreover,
it is evident that the General Counsel must have been confused herself
about such things, for it was she who elicited Lopez’ claim that on the
day after the meeting at the Mendota church, he was again interrogated
by Vasquez, even though he had been discharged on May 18, and ad-
mittedly did not appear again in the maintenance shop (where the inter-
rogation allegedly occurred) after his discharge. Thus:

Q. And where was that meeting?
A. At the church hall in Mendota.
Q. What time was it?
A. Also in the afternoon.
Q. How many—who was present there?
A. There were a lot of people there also.
Q. About how many?
A. More than 30 people also.
Q. You might have already said but, what city was the meet-
ing in?
AIn Mendota.
Q. Did you speak at the meeting?
A. Yes.
Q. Do you remember having any conversations with anyone
at work regarding the union, after that meeting?
A. Yes.
Q. When?
A. The next morning with John Vasquez.
Q. And where were you?
A. The same place, at the shop.
Q. What time was it?
A. Seven in the morning, 7:15.
Q. And what language was the conversation in?
A. In Spanish.
Q. What was said?
A. The same questions, how many people had attended the
meeting, whether the people w re cooperating with us, questions
like that.
Q. What did you say, if anything?
A. I answered him that everything was going fine, that also
many people had attended.
any of the other attendees) about the meetings? Alternatively, if
Vasquez were seeking more particularized intelligence than his
supposed source had provided, why, then, would he content
himself with the kinds of generalized questioning and responses
that Lopez and Rivera have described? Finally: Why would
Vasquez single out only Lopez and Rivera for such question-
ing? (So, too, one might ask, more broadly: Why would Lopez
and Rivera be the only ones targeted for “greater scrutiny of
their work and/or work habits,” or for disciplinary action, or for
discharge?) The record made by the General Counsel does not
provide any ready answers to any of these questions, at least
none that would support the prosecution’s case. Indeed, the
only answer that plainly suggests itself in the circumstances is
that Vasquez did no such thing, but Lopez and Rivera, being
the only supporters of the Union who later suffered discipline
and discharge, were required as part of any plausible challenge
to these actions to fabricate a story that would supply the oth-
erwise missing elements of knowledge and animus in their
cases, moreover, a story according to which the other members
of the pro-Union cadre of mechanics were unimportant figures,
too inconspicuous to attract the Respondent’s attention.29
As I noted at the outset, the General Counsel bore the burden
of establishing the credibility of either Lopez or Rivera over
that of Vasquez as to the existence of any such alleged “inter-
rogations” about “meetings.” Considering all of the foregoing, I
judge that the evidence falls woefully short of that mark. Ac-
cordingly, I reject any claims that assume the existence of the
alleged interrogations by Vasquez, necessarily including claims
that depend on the alleged interrogations as a basis for finding
either knowledge or animus.
D. Claims of Knowledge Based on Other Factors
In this section I will address prosecution claims that the Re-
spondent’s early knowledge of the Union’s campaign—and of
Lopez’ and Rivera’s role in the campaign—can be independ-
ently inferred from other facts and circumstances. Before em-
barking on this subject, however, it’s worth reiterating that even
if these “independent” factors had greater evidentiary value
than I think they do in satisfying the General Counsel’s burden
of demonstrating knowledge, they are still conspicuously lack-
ing in indications that the Respondent was hostile to any union
activities that it might have been aware of. Thus, the element of
animus would remain unproved even if knowledge had been
established, and this would alone justify dismissal of the com-
plaint.
1. Borboa’s presence in the Pizza Factory
As I discuss next, the unreasonably speculative character of
the prosecution’s reasoning is nowhere made more palpable
than in the General Counsel’s attempts to identify Borboa as
the likely source of the Respondent’s supposed early knowl-
29 Although the prosecution’s case focused on the activities of the al-
leged discriminatees and left largely undeveloped the activities of other
members of the original prounion group, there is still no distinct basis
in the record for supposing that Lopez and Rivera were any more “ac-
tive” or “visible” on the Union’s behalf in the early stages of the cam-
paign than were the other mechanics who made up the Union’s initial
cadre.
TOMATEK, INC. 1361
edge of the Union’s campaign and the alleged discriminatees’
participation in it, all based merely on her presence in the Pizza
Factory on March 5 while the union group was seated at a table
in the same restaurant.
I will begin by reviewing and expanding on the setting as it
was variously described by Reza, Rivera, and Pedro Flores.30
The Pizza Factory is a popular restaurant in Firebaugh and is
frequented by many plant employees and members of their
families. The two representatives of the Union, Reza and Mar-
tinez, and the six mechanics in the group, were seated at a pic-
nic-style table throughout the meeting, half facing towards the
order counter, the other half facing away. (The order counter,
according to Reza, was “20 or 30 feet away” from the table
where the Union group was seated.) There were other patrons
seated at other tables in the restaurant throughout the meeting,
during which still others entered, picked up takeout orders, and
left. Although union organizing was the purpose of the meet-
ing, it could not have been the only subject of discussion, for
the meeting lasted over an hour, and the witnesses gave only
brief descriptions, if any, regarding the union-related subjects
of conversation.31
The reported details of Borboa’s presence and actions also
deserve some amplification.32 Borboa arrived during the latter
portion of the meeting. She was accompanied (as Reza specifi-
cally recalled) by a younger woman. The two women placed an
order at the counter and then sat on a bench near the counter,
chatting and waiting for the order to come up. (Reza couldn’t
make out what either woman was saying to the other.) At one
or more points, Borboa looked in the direction of the group and
made eye contact with one or more of them, including Pedro
Flores, but no words or gestures of recognition were ex-
changed. (If I were to accept Rivera’s unique recollection in
this regard, I might find that she not only made eye contact with
one or more of the mechanics, but “stared” at the group in gen-
eral. However, this was not only a unique recollection, but a
self-serving and improbable one given all the known circum-
stances, and I give it no weight.33)

30 The General Counsel elicited Lopez’ recollections about the Pizza
Factory meeting, but he said nothing about Borboa’s presence in the
restaurant, one of several indications that Borboa’s presence was far
less remarkable than the prosecution would now have me find.
31 As Reza sketchily recalled it, they talked about what the Union
might be able to do “to help ameliorate the situation that they thought
was not so good at Tomatek,” and Reza encouraged the workers to get
enough authorization cards signed to permit the Union to file a petition.
Because it couldn’t take very long to say these things, I have to assume
that the time spent by the group must also have been occupied with the
kind of small-talk, shop gossip, jokes, and other manifestations of con-
viviality that usually attend any gathering of people with a common
interest, especially when the gathering takes place in a public restau-
rant, over beer and pizza.
32 Although Borboa testified (quite plausibly, in my assessment) that
she had no particular recollection of the event, she readily acknowl-
edged that she was a regular patron of the Pizza Factory, and I don’t
think Reza, Rivera, and Pedro Flores were all lying when they placed
her in the restaurant on March 5.
33 Rivera’s admitted failure to greet or otherwise acknowledge Bor-
boa strikes me as an unnatural reaction to being “stared” at by a next-
door neighbor. Beyond that, why would a seated assembly of men
In her discussion on brief, counsel for the General Counsel
finds these facts to be fraught with evidentiary significance, but
her arguments depend in part on a distortion of them: Thus, in a
factual recitation at page 7, marking her first foray into the
subject, the General Counsel states blandly that “Borboa en-
tered the Pizza Factory and observed the group . . . meeting
with the Union.” This “factual” claim obviously imparts an
interpretive spin to the evidence—that Borboa not only ob-
served the workers seated at a table, but “observed” that they
were “meeting with the Union.” However, the evidence is
clearly too fragile to sustain this kind of spinning, for it remains
entirely unclear how Borboa could have “observed” the nature
of the gathering simply by “observing” the group of people
seated at the table, who, by all accounts were merely eating
pizza, drinking beer, and talking.
Counsel for the General Counsel also finds dark significance
in the fact that neither Rivera nor Flores greeted Borboa, even
though they both knew her and she knew them. Thus she states
on brief (p. 16) that the “failure” of Rivera or Flores to greet
Borboa “would have confirmed [sic] to Borboa that the em-
ployees were engaged in union activities.” However, even if I
were to ignore counsel’s contextually inappropriate use of the
verb confirmed,34 I would still have to regard her point as
grounded in a singularly specious bit of reasoning—that the
failure-to-greet would permit Borboa to draw only one conclu-
sion from among the many obvious possibilities—that the non-
greeters must be engaged in union activities, rather than merely
being preoccupied with eating pizza, drinking beer, and talk-
ing.35 Moreover, in laboring to ascribe more significance to the
failure-to-greet than it ever deserved, the General Counsel un-
wittingly finds herself in the position of trying to straddle
horses prancing in opposite directions. Thus, for these pur-
poses, she also speculates that the failure of anyone at the table
to greet Borboa would have been a sign to Borboa that they
were “uncomfortable and concerned about her presence.” But
the General Counsel elsewhere sought to depict Lopez and
Rivera as open and unapologetic adherents of the Union; in-
deed, she stresses (on the same page of her brief, but for the
latter purpose) that “Lopez and Rivera did not make any at-
tempt to keep their union activities a secret” (except, appar-

gathered over beer and pizza in a community restaurant, including
some known to Borboa to be plant mechanics, be enough to arouse
Borboa to “stare” at the group? Thus, I doubt that she stared. In addi-
tion, Reza claimed only that Borboa “looked” at the group several
times, and Pedro Flores, who had known Borboa for about 20 years, did
not claim that Borboa stared at the group, only that his eyes met hers at
one point. Moreover, Flores also testified that Borboa was “doing her
business and I was doing mine[,]” implying that the exchange of
glances was casual and unremarkable, as was Borboa’s presence and
behavior in the restaurant in the first place.
34 Implicitly, the General Counsel asks us here to suppose, a priori,
that Borboa would have instantly suspected, upon seeing the seated
group, that they must be involved in a union organizing meeting, and
thus that the failure-to-greet could only have “confirmed” these suspi-
cions.
35 Sometimes a specious line of reasoning is best exposed by turning
it on its head: Borboa did not greet any members of the seated group,
either; therefore, they were entitled to conclude that Borboa and her
woman companion must be engaged in union activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1362
ently, when cowed into silence by the presence of seasonal
sorting supervisor Borboa at the pizza order counter.)
The General Counsel also argues on brief (p. 17) that Borboa
had a “proven propensity” for informing her superiors about
union activity. Both quoted words deserve a closer examina-
tion: Counsel’s supposed proof of such a characterological
propensity on Borboa’s part is evidence that I rejected as re-
mote and liable to lead to wasteful collateral litigation when it
was first tendered. This was a written declaration (rejected GC
Exh. 15) that Borboa had signed on September 11, 1995 (relat-
ing to the 1995 Teamsters election campaign, supra), in which
she summarily described having told a presumed management
agent named Tom Sewell about a report she had received from
an employee about threats made by pro-Teamsters employees.
On brief, the General Counsel has asked me to reconsider my
rejection of Borboa’s 1995 declaration and to receive it into
evidence. I decline to do so, essentially for the same reasons I
noted during the trial,36 plus two additional ones: First, the
proffered evidence is simply too isolated and remote to provide
plausible support for the argument for which it is now of-
fered—that Borboa’s general character or personality was such
as to predispose her to run to higher management with news of
any union activities that might come to her attention. Second,
even if the scant evidence in question would permit a finding
that Borboa was generally thus predisposed, such a finding
would deserve no ultimate weight in the absence of independ-
ent, credible evidence that Borboa was aware of union activity
at relevant times in 1998. My findings above explain why I am
unwilling to conclude that Borboa became aware of union ac-
tivity simply by virtue of her presence in the Pizza Factory on
March 5. There is no other evidence that could reliably estab-
lish such awareness on her part. Accordingly, the General
Counsel’s “propensity” claim, even if it had been “proved”
(and it would have taken more than her September 1995 decla-
ration to establish such proof) remains in the end a merely hol-
low one.
2. Waid’s April 24 entry in his daily log
Waid kept a rather detailed handwritten log of his daily ac-
tivities. The Respondent offered only a portion of that log into
evidence, and the tendered portion alone included about 250

36 In rejecting the General Counsel’s initial tender of GC Exh. 15 on
February 9, I noted first, as follows: “My judgment in any case is that
her activities in connection with an earlier union campaign, to try to
litigate those would open the door to a bunch of collateral litigation and
it doesn’t go directly to activities that concern us now.” And I ruled
that, “[T]he contents of the affidavit [the declaration], plus, and assum-
ing arguendo that Mr. Sewell was then an agent of management in his
capacity as personnel manager, I’m still finding that the fact you seek
to prove is too remote and tangential to be worthy of admission in this
case. I’m not saying it is utterly irrelevant, I am ruling that, and I be-
lieve it’s Rule 403 [Federal Rules of Evidence] that it would be a waste
of time to pursue it. So, I’m rejecting your offer of proof. You may, as
you choose, make an exhibit for the rejected file.”
Moreover, on February 11, when the General Counsel supplied the
exhibit for the rejected file, I further noted as follows: “Simply, to add
to remarks I made at the time, my judgment is that essentially what this
would go to is impeachment of Ms. Borboa on what amounts to a col-
lateral matter.”
consecutive pages, covering the period March 6 (the day after
the Pizza Factory meeting) through July 20. Each of the pages
in the tendered portion is dense with notations reflecting vari-
ous incidents that had come to Waid’s attention, his to-do lists,
inspection schedules, and other, seemingly typical indications
of the concerns and responsibilities associated with a plant
manager’s job, especially one who is responsible for getting the
plant ready for another processing season. The Respondent
argues, and I agree, that the log tends to show, inter alia, that
Waid’s first knowledge of union activities came when Waid
said it did, on May 26, when the Union’s initial charge arrived
at the plant. Thus, the first reference of any kind to any union-
related subjects appears on page 164, reflecting a May 26 entry,
in which Waid wrote: “Call Chris Thomas! Unfair Labor Prac-
tice? (Call Steve [Arnoldy] and Bill).”
However, there appears one other prior entry, made on Fri-
day, April 24. This entry, near the top of page 96, states as fol-
lows: “Can we make promises-comparisons with Helms/San
Benito[?]”37 This notation appears immediately below a note
that states: “Christian May 11.” It also follows a note at the
bottom of the preceding page dealing with a planned meeting to
be conducted with the seasonal “lead people.”
The General Counsel finds (Br., pp. 23–24) that this entry
“speaks for itself,” and that it “indicates . . . that by April 24
Respondent not only knew of the new organizing activities but
was already devising plans to meet it.” Again, I think that the
General Counsel’s conclusions are skewed unduly by specula-
tion and wishful thinking. In my view, the entry is, at best,
equivocal in its evidentiary significance. While labor lawyers
might be quick to infer from an employer’s references to
“promises and comparisons” the background existence of a
union organizing campaign, such an inference is hardly an in-
escapable one, for the terms are part of ordinary daily speech,
and are used by employers (and other nonlawyers) in countless
contexts where union organizing is entirely absent from the
picture. Thus, Waid’s April 24 entry, standing alone, is an all-
too-slender basis for finding that Waid was aware of the Un-
ion’s campaign by April 24.
The evidentiary significance of the entry, frail to begin with,
is diminished further by Waid’s ultimate explanation for it, an
explanation which I found both plausible and credibly-
delivered, even if tentative and at times confusing. Thus, on
examination from the bench, Waid showed what I regarded as a
genuine attempt to search his memory to see if he could recall
what the entry referred to. He first focused on the page 95 note
concerning the planned meeting with seasonal lead people, and
speculated, while confessing that he had no genuine memory,
that the “promises-comparisons” entry might have been a note
about something he planned to say to the lead people. However,
when he later focused on the “Christian May 11” note, this
triggered what appeared to me to be a genuine memory. Thus,
he recalled, in stages, that this referred to the expected return
date of Christian Garrido, an electrical engineer employed by
37 Waid acknowledged that these were references to the Respon-
dent’s (already-unionized) plant in San Benito and to another plant
(Helms) which the Respondent does not own. (Waid wasn’t sure about
the union or nonunion status of the Helms plant.)
TOMATEK, INC. 1363
the Respondent as a consultant on automation projects. In this
regard, Waid further stated, “I remember talking to Christian
about him coming back on May 11th, and those [“promises-
comparisons”] are the two things I talked to him about.” He
then recalled, in substance, that the April 24 entry referred to a
question in his mind whether he could “promise” Garrido a
higher salary, and whether “comparisons” between the automa-
tion levels at the San Benito and Helms plants should be taken
into account in the salary calculation.38
3. Miscellany
Sprinkled throughout the General Counsel’s brief are a vari-
ety of other arguments in support of the claim that the Respon-
dent had early knowledge of Rivera’s and Lopez’ activities for
the Union. In my view, these arguments commonly suffer,
again, from speculation grounded in evidence that I regard as
too shaky to provide any useful support for the speculation.
Thus, in one example, the General Counsel hints at a “small-
plant” theory of knowledge when she emphasizes (p. 19) that
the two workers’ organizing efforts occurred during a period
when “there were only between 40 and 80 employees working
. . . in the plant where word travels fast.” However, the small-
plant rationale is, (a) one that the Board does not appear ever to
have relied on solely as its basis for finding employer knowl-
edge; (b) appears to be a disfavored one in the cases that have
addressed it; and (c) seems best applied, if at all, only to in-
plant organizing activities.39 And clearly, the application of
such a theory in this case, involving organizing in a unit of
more than 500 workers, done mostly away from the plant,
would be especially problematic.
The General Counsel also argues (p. 25) that “[f]urther proof
of Respondent’s knowledge (or its suspicion) that Lopez and
Rivera were involved in union activity may be found in Re-
spondent’s undisputed bathroom surveillance of them.” Here,
what the General Counsel so glibly refers to as the “undisputed
bathroom surveillance” is grounded solely in Lopez’ and
Rivera’s vague and fragmentary testimony concerning incidents
in which, while they were in a toilet stall, they observed
(through the crack formed by the hinge joint of the door) that
certain supervisors would also enter and leave the bathroom,
without performing any of the normal functions associated with
such visits. I found their testimony in this regard to be not
merely vague as to timing and other particulars, but especially

38 The General Counsel’s attacks on this explanation (Br. pp. 24–25)
are manifold, ranging from the charge that “Waid changed his testi-
mony midstream,” to invocations of findings made by Judge Wacknov
in his decision, supra, in the case growing out of the Teamsters second
election loss in 1996. The charge that Waid “changed his story” does
not accurately capture the nature of the evolution of Waid’s testimony.
The other attacks, including those which are grounded in findings made
by Judge Wacknov, are too remote or peripheral to seriously undermine
the credibility of Waid’s explanation. They also seem to rely on non
sequiturs. For example, the General Counsel states: “Waid made no
explanation as to why he, the plant manager and top executive for the
Respondent [sic], would ponder whether he could offer Garrido a wage
increase.” (Are we to assume that such “ponderings” are not the pre-
dictable stuff of a plant manager’s life? If so, why?)
39 See discussion and authorities cited in Basin Frozen Foods, 307
NLRB 1406, 1408–1409 (1992).
self-serving and unreliable. It’s hard to believe in the first in-
stance that their limited views through the stall door crack
would have allowed them to observe as much as they claimed
to have seen from that vantage. Moreover, their descriptions of
the supervisors’ actions were peppered with gratuitous and self-
serving statements amounting to conclusions about the supervi-
sors’ motives for their presence. More important in my view
was their acknowledgment that plant supervisors have always
used this same bathroom. Accordingly, I find this evidence to
be quite unreliable as proof of the requisite element of knowl-
edge.40
The General Counsel also cites (at p. 19) the Respondent’s
supposedly “unconvincing reasons” for terminating Lopez and
Rivera as affirmative evidence supporting the “inference that
Respondent acquired early knowledge of their renewed organ-
izational activity in 1998.” One of the most obvious difficulties
with such claims is that, under Wright Line’s analytical scheme,
an employer is under no obligation to advance “convincing”
lawful reasons for acting against an employee in order to avoid
a finding that its motives were tainted by unlawfully discrimi-
natory reasons. Rather, it is the General Counsel’s burden to
establish the latter, and that burden is not carried merely by
casting doubt on the reasons advanced by the employer. Indeed,
the General Counsel has failed to identify any case—and I have
located none in independent research—in which the Board has
relied merely on the “unconvincing” character of the em-
ployer’s professed reasons for acting against an employee to
supply the otherwise missing proof of “knowledge” (or of
“animus”). Instead, my research indicates that where the Board
has invoked disparity of treatment as a factor pointing in the
direction of knowledge, it is has also relied on other, more per-
suasive indicators of knowledge.41 I note further in this regard
40 I reach virtually identical conclusions about the “greater scrutiny”
allegedly imposed by Waid “and/or” Vasquez on Lopez’ and Rivera’s
“work and/or work habits.” The General Counsel again relies primarily
on Lopez’ and Rivera’s vague, self-serving, and conclusionary accounts
as evidence of such “greater scrutiny.” Moreover, there is no evidence
of record (other than in Lopez’ and Rivera’s conclusionary claims) that
independently establishes what the “normal” level of supervisory “scru-
tiny” might be at the plant. Finally, counsel for the General Counsel
substantially overstates the evidence when she argues (p. 26): “In fact,
Respondent admits that, prior to their respective discharges, it was
monitoring Lopez and Rivera more closely.” In fact, neither Waid nor
Vasquez admitted any such thing, and the only evidence of this cited by
the General Counsel is Waid’s testimony in which he talks about hav-
ing observed Lopez and/or Rivera engaging in time-wasting or related
misconduct on various occasions. And Waid’s testimony on these
points, far from constituting an admission that he was imposing
“greater scrutiny” on these workers, indicates that in each case, his
notice of these things occurred incidental to his work activities of the
moment.
41 See, e.g., Dr. Frederick Davidowitz, D.D.S., 277 NLRB 1046,
1048–1049 (1985). There, the Board invoked a rather large number of
other factors as “enhanc[ing] the reasonableness of inferring the Re-
spondent’s knowledge”: The small and intimate “working environ-
ment” shared both by the dentists who had sought unionization and
their dentist-managers; the fact that the discharged dentist had “solic-
ited . . . dentists known to be opposed to unionization and on close
terms with the managing doctors”; the demonstrated existence of a
“rumor mill” within the dental clinic; management’s “reliance on feed-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1364
that while the Board has sometimes relied on disparity of
treatment as the sole basis for inferring animus where “knowl-
edge” is otherwise evident, it is because the disparity in ques-
tion was so “blatant” as to admit of no other interpretation than
that the employer bore animus against the protected activity.42
Here, I can find in none of the evidence cited by the General
Counsel any convincing indications of any such blatant dispar-
ity.
Indeed, the wide variety of facts or supposed facts marshaled
by the General Counsel do not even persuade me that the Re-
spondent treated Lopez or Rivera “disparately” from other em-
ployees believed to be guilty of the kinds of offenses it believed
Lopez and Rivera were guilty of committing. The flaws in
many of these claims are too obvious to require comment. (For
example, the General Counsel finds disparate treatment, and
even “pretext,” in the fact that Waid issued a warning to Lopez
on May 1 for talking to Arcelia Posas at her work station, but
failed to issue such a warning to Posas.) Indeed, the claims of
pretext are grossly overstated, and remain wholly unsupported
by the variety of anecdotal facts and speculations which under-
lie the General Counsel’s claims. Put another way, the Respon-
dent’s professed reasons for acting against these employees, as
carefully and plausibly detailed by Waid, were not shown to

back” from its employees when it came to “evaluating personnel mat-
ters.” The Board also found it “significant” that the employer admit-
tedly learned of the union drive from a dentist opposed to unionization.
Also significant was the Board’s agreement with the judge that the
employer’s claim that it only learned of the union drive from the antun-
ion dentist after it had already fired the prounion dentist was “contrived
and not worthy of crediting.” (Indeed, this credibility judgment alone
might have warranted a finding of predischarge knowledge.)
42 See, e.g., Fluor Daniel, Inc., 304 NLRB 970, 971 (1991); New
Otani Hotel & Garden, 325 NLRB 928 fn. 1 (1998).
have been plainly false or merely fanciful.43 The General Coun-
sel’s claims to the contrary are largely based on facts that can
be found in a summary (Jt. Exh. 2, prepared by the Respondent
in anticipation of this litigation) of disciplinary actions taken
against employees in the 3-year period January 1, 1996,
through January 14, 1999. And the General Counsel relies most
heavily on evidence of discipline imposed during the remote
end of that period, prior to Waid’s arrival as plant manager. In
my view, even this evidence of supposed disparity is again
equivocal, at best, and raises only isolated and marginal ques-
tions about the even-handedness of the Respondent’s applica-
tion of its disciplinary policies over the course of several years.
In addition, the comparisons in disciplinary treatment cited by
the prosecution suffer from an apples-and-oranges problem;
that is, none of the several disciplinary examples marshaled by
the General Counsel to show alleged disparities involved cases
that were substantially similar to those presented by Lopez and
Rivera.
In sum, despite the General Counsel’s efforts, I cannot find
in the record as a whole any evidence that would reliably estab-
lish that the Respondent either had early knowledge (i.e., pre-
May 26 knowledge) of Lopez’ or Rivera’s union activities, or
even that, having gained such knowledge on May 26, it was
hostile to such activities. Accordingly, I am compelled to judge
that the General Counsel has failed to carry its threshold burden
under Wright Line, and that the inquiry properly ends with that
judgment.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended44
ORDER
The complaint is dismissed in its entirety.
43 I emphasize here that this discussion does not purport to reach the
question whether the Respondent’s evidence as to its “reasons” for
acting against Lopez and Rivera would be enough to carry its own
Wright Line burden, in the hypothetical event that the burden had
shifted to it. Rather, my focus here is on the question whether the rea-
sons advanced by the Respondent were so plainly false or pretextual as
to invite the Shattuck Denn[*] inference that they were invoked to
conceal an ulterior and unlawful reason for the actions. And for reasons
further noted below, I judge that the evidence could not support such an
inference. (Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466. 470
(9th Cir. 1966).)
44 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.