UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION 13

ZACATACOS INCORPORATED, Respondent

Cases: 13-CA-261409
and 13-CA-261410

Gloria Cabrera 1, An Individual

and

Elia Delgado, An Individual

BRIEF TO THE ADMINISTRATIVE LAW JUDGE

ON BEHALF OF COUNSEL FOR THE ACTING GENERAL COUNSEL

Respectfully Submitted:
/s/ Helen Gutierrez
Helen Gutierrez
Counsel for the Acting General Counsel
National Labor Relations Board
Region 13
Dirksen Federal Building
219 S. Dearborn, Suite 808
Chicago, IL 60604

1
The first amended charge in Charge 13-CA-261409 was filed by Gloria Cabrera (GCX 1 (e)). The first amended
charge in charge 13-CA-261410 was filed by Elia Delgado (GCX (1g)). The caption of the Consolidated Complaint
did not reflect the correct name of the Charging Parties.
 TABLE OF CONTENTS

I. Statement of the case. – 8(a)(1) Discharges For Engaging In Protected Concerted

Activity..…………………………………………………………………………...….1
II. The Charging Parties Engaged in Protected Concerted Activities …………………...3
A. Pre-Covid Conditions ………………………………………………….…3
B. Post-Covid Conditions: Charging Party Gloria Cabrera makes
it clear to Respondent that is she is available to work mornings ..……….…...4
C. Gloria Cabrera and Elia Delgado engage in classic Protected
Concerted Activities: They discuss the work schedule and hours
with other employees in a group text; they raise those concerns
with Respondent ………………………………………………...……….…....5
i. Texting About the schedule with coworkers
and raising the issue to Respondent is protected
Section 7 activity under Board law…………………..……6
D. Respondent discharged Gloria Cabrera and Elia Delgado in
Violation of Section 8(a)(1) of The Act.………………………………………8
i. Respondent Illegally discharged Gloria Cabrera ...…….…8
ii. Respondent Illegally discharged Elia Delgado ……….…10
iii. This Is A Single Motive Case/Analysis ...………….....…11
iv. Pluas is not a credible witness ……………………....…..12
v. The Respondent terminated Gloria Cabrera and
Elia Delgado in violation of Section 8(a)(1)…………..…13
III. Conclusion ……………....…………………………………………………………..15
Appendix A Proposed Notice to Employees……………...…………………………………16
Appendix B Proposed Conclusions of Law ………………………………………………....18
 I. Statement of the Case – 8(a)(1) Discharges for engaging in Protected Concerted
Activity.

Respondent summarily fired Charging Parties Gloria Cabrera and Elia Delgado because

they exercised fundamental Section 7 rights under the National Labor Relations Act.

Specifically, Respondent fired them because they discussed their concerns about the work

schedule and their hours with other employees and with Respondent’s managers. These

Charging Parties were exercising core Section 7 rights when they discussed (through text

messages with other employees) the work schedule and their displeasure with Respondent giving

newly hired employees more hours and better shifts, and they raised their concerns about the

work schedule to the manager who was responsible for creating the schedule (GCX 4 (a)-(e),

GCX 7(a)-(e)). 2 The Charging Parties were exercising their core Section 7 rights when they got

together and came up with a plan to address their concerns over the schedule directly with

Respondent’s managers (Tr. 37, 79), and when pursuant to their plan, Cabrera sought out her

former supervisor, explained the issues they were having with the schedule and asked for his

help in resolving them. (Tr. 37)

Respondent’s reaction to Cabrera’s and Delgado’s exercise of these fundamental Section 7

rights to discuss their hours and work schedules with their coworkers and to bring those concerns

to management was to swiftly terminate them. The record evidence showed (including a voice

recording) that Respondent’s Manager Otildo Pluas made it clear to Cabrera and Delgado that

they were being terminated for complaining about the work schedule with other employees

through a group text message. Pluas terminated Cabrera the very next day after the text

2
The transcript will be cited as “Tr.” Followed by a page number. The General Counsel’s exhibits will be cited as
“GCX” followed by an exhibit number.

1
messages were exchanged and specifically told her “due to the situation yesterday, you no longer

have work” and “you do not work here anymore” and asked for her apron and her hat. (GCX 5).

Only one day later, Pluas waved a print-out of the text messages in Delgado’s face and told her

that there was no more work for her (Tr. 81-82).

Board law makes it clear that “An employee may be discharged without formal words of

firing. ‘It is sufficient if the words or actions of the employer would logically lead a prudent

person to believe his [or her] tenure has been terminated.’” Matsu Sushi Restaurant, 368 NLRB

No. 16, fn. 2 (June 28, 2019) (citing Nations Rent, Inc., 342 NLRB 179, 179-180 (2004)), enfd.

819 Fed. Appx. 56 (2d Cir. 2020). Pluas’ words made it abundantly clear to Cabrera and Delgado

that they had been fired. There was no ambiguity; they understood they were fired. They each

asked Pluas for a letter in writing that stated why they had been fired, but Respondent never

supplied such a letter (Tr. 58, 82, GCX 6 (a)-(c)). They even went to the Respondent’s office in

the suburbs to see if they could talk to the owner about Pluas firing them, but no one made

themselves available to talk to them. (Tr. 84).

As this is a single motive case, a Wright Line analysis is not warranted since the very

conduct for which employees were disciplined was itself protected concerted activity. Burnup &

Sims., Inc., 256 NLRB 965, 976 (1981). In a strikingly similar case, Matsu Corp. d/b/a Matsu

Sushi Rest. & Flushing Workers Ctr., 368 NLRB No. 16, fn. 2 (2019), the Board found that a

Wright Line analysis was not warranted because the Respondent had not asserted that it had

discharged the employees for any reason other than their protected concerted activity, i.e. their

concerted refusal to work an extra shift, and noted that the Respondent had not conceded that the

employees had been discharged and that their principal defense, that the employees had quit, was

meritless. Id.

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 Though Respondent contends that it did not fire Cabrera and Delgado and that they

simply quit right after they discussed their concerns about the work schedule and hours with

other employees and then brought those concerns directly to the attention of Respondent’s

supervisors, the evidence as detailed below belies this after-the-fact fabrication.

The undisputed facts presented at hearing showed that Charging Parties Cabrera vand

Delgado discussed their work schedule and hours with co-workers and complained to their

immediate supervisor about the schedule (GCX 4 (a)-(e)), that they made plans to talk again to

their immediate supervisor and to their former supervisor about the schedule and hours (Tr. 37,

79), that Cabrera in fact discussed her concerns with the former supervisor that same night (Tr.

37-38), and that both were summarily fired (Cabrera the next day, Delgado the day after). Black

letter Board law clearly supports that their activities in discussing work schedules and hours with

co-workers and bringing their concerns to management’s attention constitutes protected

concerted activity. As such, Respondent’s discharge based on the Charging Parties’ clear

protected concerted activities violated Section 8(a)(1) of the Act as alleged in the Consolidated

Complaint and at the hearing.

II. The Charging Parties engaged in Protected Concerted Activities.

A. Pre-Covid Conditions

Respondent owns and operates five Mexican restaurants in Chicago, Illinois (Tr. 18).

Respondent is owned by Mario Acuna (GCX 1(k)). Since mid-April of 2020, Otildo “Amador”

Pluas has been the manager and admitted Section 2(11) supervisor in charge of managing the

restaurant located at 59th and Pulaski in Chicago (GCX 1 (k); Tr. 20). At all times material there

were approximately 28 employees at the 59th and Pulaski location. (GCX 4 (a)). At the time they

3
were fired, Charging Parties Gloria Cabrera and Elia Delgado had been working for Respondent

at the 59th and Pulaski location for over two years (Tr.18-19, 66-67).

In mid-March of 2020 3, due to COVID-19 restrictions imposed by the city of Chicago,

Respondent stopped offering on-site dining and began offering only take out service.

Respondent was operating with less staff as some were afraid to go in because of the pandemic

and with less working hours to spread among the existing staff (Tr. 92-93). Cabrera and Delgado

were undeterred by the pandemic and continued working for Respondent, who assigned them to

do take-out orders. They answered the telephone, took orders, packaged them, handled cashier

duties and ran orders out to customers in the parking lot (Tr. 19, 67). Delgado’s work schedule

was impacted by the new changes as she now had less hours and no longer had a set work

schedule. (Tr. 68).

In mid-April, Respondent closed the 59th and Pulaski location for approximately 2 weeks due

to the COVID-related death of one of its employee’s (Tr. 19, 20). The facility reopened on April

27 with Otildo “Amador” Pluas as the new manager. The previous manager, Roberto “Primo”

was sent to manage another location (Tr. 20, 21, 110). It is undisputed that Pluas’ duties

included creating the work schedule (Tr. 90).

B. Post-Covid Conditions: Charging Party Gloria Cabrera makes it clear to

Respondent that she is available to work mornings.

A few days after the restaurant reopened, Pluas contacted Charging Party Cabrera and asked

if she wanted to return to work given that an employee had died of Covid (Tr. 20-22). On May

3rd, Pluas met at the restaurant with Charging Party Cabrera and another employee, Clara

3
All dates herein occurred in 2020 unless otherwise noted.

4
Fabiola. During the meeting, Pluas discussed their availability and told them that the schedule

would rotate and would vary during the day (Tr. 23). Cabrera was eager to return to work and

explained that although she could only work nights on Mondays because she didn’t have a

babysitter, she was available to work mornings Monday through Sunday (Tr. 23, 25-26). Much

to her dismay, Pluas only gave her three days of work with her only set day being Mondays

when she would work nights; the other two days were not set but she would be working a total of

three days for the time being. She returned to work on May 4th. (Tr. 23, 93).

C. Gloria Cabrera and Elia Delgado engage in classic Protected Concerted

Activity: They discuss the work schedule and hours with other employees
in a group text; they raise those concerns with Respondent.

On May 24th, employee Clara Fabiola sent a group text message to five employees including

Cabrera, Delgado, Monica Chavez and Natalie Ramirez, asking if anyone had the work schedule.

(Tr. 28, 3, 74, GCX 4(a), (e), GCX 7 (a), (e)). Since the work schedule was posted Sunday

nights and began the next day, employees often texted each other asking for the schedule and

whoever was working would take a picture and text it back. (Tr. 25, 68). Natalie Ramirez took a

picture of the schedule and texted it to the group. (GCX 4(a)-(e), GCX 7(a)(e)). At 9:55 p.m.

Cabrera texted that she could not distinguish her name, among all the women. Clara Fabiola

texted back that she could hardly see her five days.

At this point, the casual, lighthearted banter about the work schedule turned into a serious

discussion about the work schedule with employees, particularly including the Charging Parties,

airing their discontent with Respondent about giving newly hired employees more hours and

morning shifts than more senior employees. At 9:58 p.m. Cabrera texted that she was only

getting 3 days and questioned why the new people were getting five days and in the mornings.

5
She also asserted that if they were only going to give her three days, she wanted them in the

mornings. (Tr. 25, 75, GCX 4 (b), (e) and GCX 7 (b), (e)). At 10:02 Delgado texted “see Gloria

this is about equality” and “but we have to leave it like that and not talk.” Cabrera replied “what

fucking equality, that’s bullshit” and questioned why they needed more people if they were just

pushing them to the side. (Tr. 30, 33, 76-78, GCX 4(c), (e), GCX 7 (c), (e)).

Manager Pluas, who admitted during his testimony that he had not been included in the

group chat and that he was reading the text messages from employee Monica Chavez’s phone,

also admitted that he then inserted himself into the conversation by replying to the employee

group text through Chavez’s cell phone (Tr. 94, 118). At 10:03 p.m. Pluas wrote “Hello, I am

Amador. If you have any questions, tomorrow and all the week I will be here when you arrive.”

(Tr. 34, 77, 118, GCX 4(d)-(e), GCX 7 (d)-(e)). Delgado and Cabrera now assumed that Pluas

was reading the text messages and had replied from Chavez’s cell phone, so Delgado replied at

10:03 p.m., asking “how it can be fair if there is people that work many more than five days

and in the morning” (Tr. 77, GCX 4(d)-(e), GCX 7 (d)-(e)). Cabrera replied at 10:04 p.m.

“well the questions we have them right now. I want work and if you are going to give me

only 3 days I want them in the mornings.” At 10:06 Delgado texted “It’s because it’s not

being fair.” No more texts were sent after that (Tr. 35, 78, GCX 4(d)-(e), GCX 7 (d)-(e)).

i. Texting about the schedule with coworkers and raising the issue with
Respondent is Protected Section 7 activity under Board law.
An employer violates Section 8(a)(1) of the Act when it discharges an employee for

engaging in activity protected by Section 7 of the Act. Nestle USA, Inc. 370 NRLB no. 53, slip

op. at 10, (2020). Employees discussing hours and work schedules with each other and raising

those concerns to management are exactly the type of activities the Board has held protected by

the Act. The Board has long recognized the right of employees to communicate in the

6
workplace. The Board has found that like wages, employee discussions of work schedules are

vital terms of employment, as changes in work schedules impact when and where employees

work and are directly linked to hours and conditions of work, both vital elements of employment

and as such are as likely to spawn collective action as the discussion of wages. Like discussions

about wages, discussions about work schedules are not only protected concerted activities but

also inherently concerted and protected regardless of whether employees are seeking to induce

group action. Aroostook County Regional Ophtalmology Center, 317 NLRB 218, 220 (1995).

The record evidence clearly establishes that Cabrera’s and Delgado’s participation in the

group text message was protected concerted activity as well as inherently concerted activity.

The topic of the discussion in the group chat was the work schedule. In discussing the schedule,

Cabrera raised what she viewed as the Respondent favoring new employees by giving them more

hours and morning shifts. The unequal assignment of work hours impacts the number of hours

an employee works, what days they work, and how much they will be paid based on those hours.

The work schedule and number of hours assigned affected all of the hourly employees and was

therefore a matter of group concern. Cabrera raised the issue and it resonated with Delgado, who

then raised it directly to Respondent when she replied to Pluas that they (the Respondent) were

not being equal (Tr. 35, 78, GCX 4(d)-(e), GCX 7 (d)-(e)).

Just like the employees in Aroostook, supra, Delgado and Cabrera were raising issues

about the work schedule. As in Aroostook, the employees were discussing changes to the work

schedule, and a work schedule that was not being fairly apportioned. As the Board noted in

Aroostook, changes to the work schedule impact where and when employees work, which

impacts wages, a vital term of employment. See Aroostook at 220. Because Cabrera and

7
Delgado were discussing work schedules, under Aroostook, their participation in that discussion

was inherently concerted and protected even if it had not contemplated any type of group action.

Cabrera and Delgado continued to engage in protected concerted activity as well as

inherently concerted activity even after the exchange of text messages ended. Cabrera and

Delgado talked on the phone that same night and discussed with each other the text messages and

their dislike of the work schedule and came up with a plan to bring their concerns directly to

management. They agreed that Cabrera would talk to Roberto “Primo” (their former supervisor)

to see if he could help and that Delgado would talk directly to current Manager Pluas. Cabrera

wasted no time and called Roberto “Primo” that same night. It is undisputed that she raised the

issues the Charging Parties were having with the schedule and asked if he could help them.

Roberto “Primo” told Cabrera that he couldn’t help them, that it was out of his hands but offered

to go with her to the office or to talk to someone (Tr. 36-38, 79).

D. Respondent discharges Gloria Cabrera and Elia Delgado in violation of

Section 8(a)(1) of the Act.

i. Respondent illegally discharged Gloria Cabrera.

The very next day, May 25th, Cabrera, arrived to work only to find she could not punch in

because her timecard was missing. Cabrera asked employee Natalie Ramirez if she knew where

her card was, and Ramirez told her that Pluas had the cards and to get it from him (Tr. 38).

When Cabrera heard that Pluas had the cards (which was not the norm), she instinctively knew

something was about to happen so she testified that she pulled out her cellphone and turned on

the video function to start recording their conversation (Tr. 38). Cabrera’s instincts served her

well as the recording she made that day captured Pluas firing her (GCX 5). Pluas’ own words in

the recording speak for themselves:

8
 Cabrera: The timecards… or do I wait?
Pluas: No. You already know what happened yesterday; I had already spoken to you and
when you came here, I told you, you only have three days of work, maximum 20 hours.
Cabrera: No, you did not tell me that. You asked me how many [hours] can you work
and I told you, it is complicated for me to come in; since you told us that the schedule
would rotate, and I told you, it is complicated for me to work in the afternoon; you told
me, I am giving you a part-time for now… for now.
Pluas: That for now is because I cannot give you, if you cannot work like that, there is no
work and now, unfortunately, due to the situation yesterday, you no longer have
work; leave me the hat, leave me the apron, and wait for your check when it is
supposed to arrive, please.
Cabrera: And, I mean, the only one who can tell me this is Primo or Mario.
Pluas: Okay, go talk to them and let me know, but you do not work here anymore,
okay?
Cabrera: So, well, Mario is going to know all about this and all the things that you are
doing; he is going to know, okay? And my check? I have my check this pay period; I am
waiting three weeks of my check.
Pluas: Wait for your check when it comes, okay?
Cabrera: Ahh… last week the check was coming…
Pluas: If you are going to talk to Mario, if you are going to talk to Primo ask them where
is your check, okay?
Cabrera: I worked three weeks and they have not paid me and this week there must be a
check; last week there had to be a check.
Pluas: But, why are you asking me if you are going to talk to them? Go talk to them.
(GCX 5(a)-(c))
Cabrera testified that she stopped the recording as she stood up to leave and as she did so

Pluas told her that she had to leave her apron. She refused, stating that the apron was hers. He

replied that he had given everyone an apron when they started working. Cabrera asserted that he

had not given her one, that she had bought the apron with her own money and was going to keep

it and that the only thing he had given her was a cap. She left the cap on the table and left. (Tr.

53, 54).

9
 Cabrera testified that she called Roberto “Primo” when she got home and told him she’d

been fired and asked for his help He told her that it was bad, that he didn’t understand why

she’d been fired and that he couldn’t help her (Tr. 54). Cabrera decided to go talk to him in

person and drove over to the restaurant where he was working. She talked to him in the parking

lot (Tr. 55). Again, she explained to him how she’d been fired and that she had not gotten her

paycheck even though it was pay day and everyone was supposed to get their check that day and

asked that he help her talk to the owner. Roberto “Primo” told her to go to the office and see if

she could get her check or to go talk to the owner (Tr. 55). Respondent did not call Primo as a

witness to rebut any of this testimony.

Cabrera left and started heading home, and along the way she called the restaurant and

asked to talk to Pluas but was told he was not in. Because she was unable to reach him, she sent

him a text message asking for a letter with the reason he had fired her and with his contact

information and for another letter with the reason she had not gotten her check when she knew

that other people had gotten theirs. She stressed that it was urgent and that she wanted an answer

as soon as possible if he could give it to her (Tr. 58, GCX 6 (a)-(b)). Pluas, to this day, never

responded (Tr. 60). Respondent failed to provide Charging Party Cabrera with a discharge letter

or any documentation giving a reason for her termination.

ii. Respondent illegally discharged Elia Delgado.

Delgado was off on Monday, May 25th but was terminated even before she reported to

work on May 26th. On May 26th, as Delgado was about to enter the restaurant, Pluas called and

told her not to come inside the restaurant, to wait outside. She got tired of waiting outside and

went inside the restaurant. Pluas met her at the entrance and told her to sit down at a nearby

table. Pluas then told her that there was no more work for her in the restaurant (Tr. 81).

10
She asked why there was no more work for her in the restaurant (Tr. 81). Pluas shook a piece of

paper in her face and told her that she was at fault, that she was not giving him respect (Tr. 82).

Delgado testified credibly that she recognized the paper as a print-out of the text messages she

and Cabrera and the other employees had been sending about the schedule on May 24 (Tr. 82).

Delgado told Pluas that it was not fair that he was firing her and asked him for a letter that said

why she was being fired. Pluas retorted that the lawyer would be in charge of sending her the

letter. (Tr. 82). Delgado told Pluas that the way they worked there was bullshit, got her check

and left. (Tr. 83). As with Cabrera, Respondent failed to provide Charging Party Delgado with a

discharge letter or any other documentation giving a reason for her termination.

iii. This is a single motive case/analysis.

This is a single motive case in that Respondent has not asserted any basis for discharging

Cabrera and Delgado other than their protected concerted activity. See CGLM Inc. 350 NLRB

974, 974 fn. 2 (2007) (Wright Line not applicable where employees were disciplined for

protected concerted activity and no other motive was at issue). Respondent’s sole argument is

that it did not terminate Cabrera and Delgado, but rather that they quit. Respondent does not

offer a mixed motive, such as attendance issues, performance issues, or any other reason other

than the dispute over the schedule and hours (Tr. 96, 101, 116-117).

Board law makes it clear that “An employee may be discharged without formal words of

firing. ‘It is sufficient if the words or actions of the employer would logically lead a prudent person

to believe his [or her] tenure has been terminated.’” Matsu Sushi Restaurant, 368 NLRB No. 16,

slip op. at 1 n.2 (2019) (citing Nations Rent, Inc., 342 NLRB 179, 179-180 (2004)), enfd. 819 Fed.

Appx. 56 (2d Cir. 2020). In this case, it is clear that Plus fired both Charging Parties and that it

was absolutely because they challenged the schedule and their hours.

11
 iv. Pluas is not a credible witness.

Pluas’ testimony is simply not credible. The evidence in the instant case makes it

abundantly clear that Respondent terminated Cabrera on May 25th and Delgado on May 26th. On

May 25th, Pluas told Cabrera on a recording that is in record evidence that “due to the situation

yesterday, you no longer have work; leave me the hat, leave me the apron, and wait for your

check when it is supposed to arrive” and “you do not work here anymore”(GCX. 5).

Moreover, at hearing, Pluas just could not get his story straight. On direct, Pluas

admitted that he had asked for Cabrera’s cap and apron on May 25th. (Tr. 95-96). However,

during cross-examination, Plaus denied that he made the statements attributed to him that were

captured by the recording (while at the same time admitting to every recorded statement that

Cabrera made), which included the statement that he asked for her cap and apron. His denials

are just not credible and the recording is a smoking gun - Pluas’ voice is on tape in the record,

firing Cabrera because she asked about the schedule and her hours, and asking for her cap and

apron (GCX 5). It is completely implausible that Cabrera quit in that she left her hat in the

restaurant (Tr. 54), sought out her former supervisor and explained what happened and asked for

help immediately after her conversation with Pluas (Tr. 54-55), called the restaurant to try to talk

to Pluas right after that, and when she couldn’t reach him, sent him a text asking for a letter that

explained why she’d been discharged and why she had not gotten her check (Tr. 58, Gc 6). Her

actions were entirely consistent with an employee who was terminated and directly contradict

Respondent’s aspersions that she quit.

Similarly, Pluas told Delgado on May 26th that there was no more work for her and shook

a copy of the text messages in her face telling her that she had not respected him (Tr. 81-82), and

when she asked for a letter explaining why she was fired, he told her the lawyer would send her

12
one (Tr. 82). No such letter was ever sent. Cabrera and Delgado even went out to the company’s

offices in Brookfield to see if they could talk to the owner, however they were unable to meet with

him (Tr. 84-86).

v. Respondent terminated Gloria Cabrera and Elia Delgado in violation of

Section 8(a)(1).
Respondent clearly discharged Gloria Cabrera and Elia Delgado for engaging in

protected concerted activity in violation of Section 8(a)(1) of the Act. The Respondent was

aware of their activity and the Charging Parties did not engage in any conduct that would have

caused them to lose that protection. Indeed, Respondent has not made any such claim as their

defense is that the Charging Parties were not fired, but rather that they quit. The evidence is

undisputed that their participation in the text group chat with their coworkers was about their

work hours and the work schedule. Employees’ discussions of these subjects are protected

concerted activity as well as inherently concerted activity. Aroostook County Regional

Ophtalmology Center, supra.

The Charging parties also continued their protected concerted activity when they raised

their concerns about the work schedule directly with Pluas in the group text message chat; when

they talked on the phone and formulated a plan to address their concerns about the hours and

work schedules and when Cabrera raised those concerns directly with Roberto “Primo.”

Academy for Creative Enrichment, 370 NLRB No. 22, slip op. at 7 (2020) (employee engaged in

protected concerned activity by exchanging text messages with other employees about wages and

hours and then bringing those concerns to management). Respondent was clearly aware that

Cabrera and Delgado had engaged in this activity. Pluas admitted he read the text messages and

that he responded to the text messages in the moment (Tr. 118). It is undisputed in the record

that Manager Pluas was keenly aware of Cabrera’s and Delgado’s protected concerted activity.

13
This was made abundantly clear when Pluas answered the Administrative Law Judge’s question

as to why he thought Cabrera was not going to work the rest of the week:

Because of the conversation that they have the night before, the discussions that they
had among themselves about the schedule, and they – that they were not agreeing to
get you to talk to me directly when I told them that they could come and talk to me
and I was able to listen to them. (Tr. 96-97)
Pluas’ knowledge of Cabrera’s and Delgado’s protected concerted activity was also made

abundantly clear when he was asked on direct how he had come to the knowledge that they

(Cabrera and Delgado) had spoken and were going to talk to somebody:

Well, at that moment, I didn’t know if they wanted to talk with somebody else, but what
I knew is that they, according to the SMS, the text – reading the text that we already
know, that they didn’t agree with this schedule or the time, the schedule that I gave
them – I offered them for that week. (Tr. 97-98)
Finally, Pluas waved a copy of the text messages in Delgado’s face when he terminated her – the

very text messages in which the Charging Parties were speaking up to each other and their co-

workers about the work schedule and hours (Tr. 82, GCX 4, 7). The very text messages that

Pluas admitted he had interjected himself into by using another employee’s cellphone to read his

employees’ messages and to reply even though he had not been invited into the text group by the

employees.(Tr. 118). These were the very text messages in which Delgado had commented that

the schedule was not being equal, a stinging rebuke to Pluas (hence, not showing him “respect”)

because he was the one making the schedules. (Tr. 90, GCX 4, 7). Pluas made it very clear

when he fired Delgado for “disrespecting” him and waved the copies of the text messages in her

face that Delgado’s protected concerted comments regarding the work schedule were the reason

he fired her.(Tr. 82). Since Cabrera and Delgado were “disrespectful” to Pluas by complaining

through the group text and to him directly about the work schedule and their hours, he took it

upon himself to fire both of them, thus violating Section 8(a)(1) of the Act.

14
 III. Conclusion

Based upon the foregoing and on the record as a whole, Counsel for the General Counsel

respectfully submits that the record evidence and the law establish that Respondent violated

Section 8(a)(1) of the National Labor Relations Act as alleged in the Consolidated

Complaint 4.

4
Appendix A is the Counsel for the Acting General Counsel’s Proposed Notice To Employees and Appendix B is
the Proposed Conclusions of Law.

15
 Appendix A

Proposed Notice to Employees

FEDERAL LAW GIVES YOU THE RIGHT TO:

• Form, join or assist a union;

• Choose a representative to bargain with us on your behalf;

• Act together with other employees for your benefit and protection;

• Choose not to engage in any of these activities.

WE WILL NOT interfere with, restrain or coerce you in the exercise of the above rights.

YOU HAVE THE RIGHT to talk and/or text with your coworkers about your wages, hours,

and working conditions, including any concerns you haver related to the work schedule.

YOU HAVE THE RIGHT to freely bring work schedule issues and complaints to us on behalf

of yourself and other employees and WE WILL NOT do anything to interfere with your

exercise of that right,

WE WILL NOT fire you because you exercise the right to talk and/or text with your coworkers

about your wages, hours, and working conditions, including any concerns you have related to the

work schedule.

WE WILL NOT fire you because you exercise your right to bring issues and complaints,

including concerns your concerns with the work schedule, to us on behalf of yourself and other

employees.

16
WE WILL within 14 days from the date of the Board’s order, offer Gloria Cabrera and Elia

Delgado full reinstatement to their former jobs or, if those jobs no longer exist, to substantially

equivalent positions, without prejudice to their seniority or any other rights or privileges

previously enjoyed.

WE WILL make Gloria Cabrera and Elia Delgado whole for any loss of earnings and other

benefits resulting from their discharges, less any interim earnings, plus interest, and WE WILL

also make them whole for reasonable search-for-work and interim employment expenses, plus

interest.

WE WILL compensate Gloria Cabrera and Elia Delgado for the adverse tax consequences, if

any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for

Region 13, within 21 days from the date the amount of backpay is fixed, either by agreement or

Board order, a report allocating the backpay award to the appropriate calendar years.

WE WILL within 14 days from the Board’s order, remove from our files any references to the

unlawful discharges of Gloria Cabrera and Elia Delgado, and WE WILL within 3 days thereafter,

notify them in writing that this has been done and that their discharges will not be used against

them in any way.

Zacatacos Incorporated

(Employer)
Dated: By:

(Representative) (Title)

17
 Appendix B
Proposed Conclusions of Law

1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and

(7) of the Act.

2. Respondent violated Section 8(a)(1) of the Act when it terminated Gloria Cabrera and Elia

Delgado.

3. The unfair labor practices engaged in by Respondent, as set forth in Conclusion of Law 2,

affect commerce within the meaning of Section 2(6) and (7) of the Act.

18
 UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
REGION 13

ZACATACOS INCORPORATED

and Cases: 13-CA-261409

13-CA-261410
GLORIA CABRERA, an Individual

And

Elia Delgado, an Individual

AFFIDAVIT OF SERVICE OF: COUNSEL FOR THE ACTING GENERAL COUNSEL’S

BRIEF TO THE ADMINISTRATIVE LAW JUDGE

I, Helen Gutierrez, the undersigned employee of the National Labor Relations Board, being duly
sworn, say that on June 21, 2021, I served the above-entitled document(s) by electronic mail
upon the following persons:

Mario Acuna, Electronic Mail

Zacatacos, Inc.
9020 Brookfield Ave.
Brookfield, IL 60513
Lyons666@comcast.net

T. Phillip Boggess , ESQ. Electronic Mail

Law Offices of T. Phillip Boggess
106 W. Calendar Avenue #286
LaGrange, IL 60525
Phil@lawtpb.com

Gloria Cabrera Electronic Mail

4035 W 56th St.
Chicago, IL 60629
noemilove1993@gmail.com

Elia Delgado Electronic Mail

4859 S Kolin Ave.
Chicago, IL 60632
delgadoela8@gmail.com
Jorge Mujica, Electronic Mail
1436 W Randolph St.
Suite 202
Chicago, IL 60607
jorge@arisechicago.org

Administrative Law Judge Arthur Amchan Electronic Mail

National Labor Relations Board
1099 14th St. NW
Washington D.C. 20570
Arthur.amchan@nlrb.gov

June 21, 2021

/s/ Helen Gutierrez

Date Signature