Cory Coffee Services

CORY COFFEE SERVICES Cory Coffee Services, Division of Cory Food Services, Inc. and Retail Delivery Drivers, Driver Salesmen, Produce Workers & Helpers, Local No. 588, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 32- CA-667 May 29, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On January 12, 1979, Administrative Law Judge Harold A. Kennedy issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ' The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In addition, we hereby correct the following inadvertent errors of the Ad- ministrative Law Judge which are insufficient to affect the results of our Decision. In the section of his Decision entitled "Rocco Costanza was a supervisor," ninth paragraph, eighth and ninth lines, the Administrative Law Judge inadvertently states that "Odom 'was late almost every day,'" when obviously it was Costanza who was late. Then, in the last paragraph, third line of this section, the Administrative Law Judge erroneously designates a footnote number as "13," whereas the correct reference should be "14." All subsequent footnotes should be renumbered accordingly. Thereafter, in th, last line of the section referred to above, the Administrative Law Judge inadvertently finds that employee Rocco Costanza "was questionably a su- pervisor under the Act," when he obviously intended to use the word "un- questionably." Finally, in the section of his Decision entitled "Findings on the charges," third paragraph, second sentence, the Administrative Law Judge states that employee Philip Heinemann testified that General Man- ager Mark Wilton "asked if he would 'sign to help out' as 'they were running in trouble.'" It is clear from an examination of the record, however, that representatives of the Union, and not Wilton, asked Heinemann to sign the authorization card. 2 In adopting the Administrative Law Judge's finding that Respondent did not unlawfully discharge Rocco Costanza as he was a supervisor within the meaning of the Act, we find it unnecessary to rely on those cases cited by the Administrative Law Judge in fn. 13 of his Decision. ders that the Respondent, Cory Coffee Services, Division of Cory Food Services, Inc., Hayward, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. DECISION HAROLD A. KENNEDY, Administrative Law Judge: This proceeding was initiated by a charge filed by the Retail Delivery Drivers, Driver Salesmen, Produce Workers & Helpers, Local No. 588, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica (Union), on January 24, 1978, and involves alleged vio- lations of Section 8(a)(1) and (3) of the National Labor Relations Act by Cory Coffee Services, Division of Cory Food Services, Inc. The complaint was issued on March 21, 1978, and the case was heard at Oakland, California, on June 5, August 10 and 11, 1978.' The General Counsel al- leges that Respondent violated the Act as follows: 1. Respondent's Branch Manager Mark Wilton interro- gated an employee at Respondent's Hayward, California, facility concerning union activities on or about January 12, 1978. (Par. Vl(a)). 2. Wilton threatened an employee with termination of employment because of his union membership or activities in January, 1978. (Par. VI(b)). 3. A supervisor and agent of Respondent, Genny Odom, in late December, 1977, interrogated an employee at its Hayward facility concerning his union activities. (Par. Vl(c)). 4. Wilton, in late December, 1977, at Respondent's Hay- ward facility, interrogated employees concerning union ac- tivities. (Par. Vl(d)). 5. Wilton, on or about December 18, 1977, gave an em- ployee the impression that his and other employees' union activities were under surveillance. (Par. Vl(e)). 6. Wilton, on or about January 13, 1978, interrogated employees at Respondent's Hayward facility concerning union activities. (Par. VI(f)). 7. Respondent discharged employee Rocco Frank Co- stanza on or about January 23, 1978, because of his mem- bership in the Union or other protected concerted activities and has since that time failed and refused to reinstate him for the same reason. (Pars. VII and VIII).' A number of matters are not in dispute, including the following: I. At all times material, Respondent has been an em- ployer engaged in commerce and in a business affecting commerce within the meaning of the Act. Respondent is a California corporation engaged in the servicing and sale of brewing equipment. It has a facility located in Hayward, California. During the 12 months preceding the issuance of a complaint, it purchased and received goods and materials valued in excess of $50,000 from out-of-state. 2. The Charging Party is a labor organization as the term is used in the Act. I Certain errors in ihe transcript are hereby noted and corrected. 2 The charges referred to in pars. 3, 4, 5, and 6 were added at the first day of the heanng. The General Counsel's attorney at that time asserted that the alleged violations referred to in pars. 1, 2, and 7 above occurred in January 1978 rather than in December, 1977. 242 NLRB No. 88 601 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Respondent's Hayward facility serves customers in the San Francisco Bay area. The facility's complement has in- cluded a branch manager, an office manager, a service man- ager, order desk and service desk clerks, a head warehouse- men, two benchmen, who repair the equipment at Respondent's facility, and two field service employees, who visit and repair equipment at various locations.3 Service calls are grouped each day into two groups according to their geographical location; one service man is assigned to do "all the work for the East Bay," and "all the work in San Francisco and the Peninsula Area" is assigned "to the other service man." 4. Mark A. Wilton was branch manager of Respondent's Hayward facility from January 24, 1977, until approxi- mately June 1, 1978. Wilton was a supervisor and an agent of Respondent during such period. Virginia Lee Odom, sometimes referred to as "Genny," has been a supervisor and an agent since she was employed on August 23, 1977, as the office manager of Respondent's Hayward facility. Odom has supervised office personnel and "the running of the office." She has authority to hire and fire employees. 5. Rocco Frank Costanza was employed by Respondent as an "equipment serviceman" at Respondent's Hayward facility on March 7, 1977, promoted to service manager of that facility on May 22, 1977, and discharged on January 23, 1978. Wilton hired Costanza, recommended his promo- tion to service manager, and recommended his discharge, as branch manager Wilton did not have authority on his own to either promote Costanza to service manager status or to terminate him as the service manager. 6. Costanza was paid on an hourly basis as a serviceman and frequently earned overtime pay. At the time of his pro- motion to service manager he was being paid at the rate of $6.30 per hour.4 On becoming service manager he was paid a salary of $288.46 per week and received no overtime pay, although he worked longer hours than before. 7. As a serviceman Costanza did bench repair of coffee equipment, made deliveries and service calls in the field, and helped out in the warehouse. On becoming service manager, Costanza was placed in charge of the warehouse, delivery, and service operations. In that capacity he routed servicemen, working in collaboration with a service desk clerk. He would check over the list of calls to be made on a given day and undertake to have the required equipment ready to go-either by obtaining it from the warehouse or by having other equipment repaired.5 Shortly after being promoted Costanza was made responsible for the parts de- partment. In this connection he was called upon to take a monthly inventory (usually with the help of another em- ployee) in the form of a "closed package," which included the amount of Cory coffee and "allied products" on hand. 'Branch Manager Wilton testified that in December, 1977, there were only five employees eligible to sign union authorization cards in the bargain- ing unit of service and warehouse employees. Resp. Exh. I lists the names, positions, and pay scale of 16 of the persons employed at Hayward as of January 23, 1978. 4 Costanza testified that at first he was paid on a "piece basis," being paid "so much for a piece of equipment" installed. The G.C. Br. asserts that "sljervicemen were independent contractors prior to April 7, 1977." Costanza testified that after being promoted he continued to spend most of his time (85 to 90 percent he claimed) in performing "field service and bench repairs of equipment." Parts on hand were also taken into account in taking inven- tory. The inventory involved making a physical count and entries on cards. The inventory was designed to show how much material and parts were used each month. The inven- tory would also indicate what additional items should be ordered for future use. Costanza would prepare a "parts list" and submit it to the branch manager for approval. Costanza interviewed one applicant. Michael DeMore. who was subsequently hired. He discussed possible employment of others with the branch manager and office manager. As service manager Costanza was also responsible for training servicemen. 8. On December 13. 1977, the Charging Party Union filed a petition with the Board seeking representation of Respondent's service and warehouse employees. An elec- tion was held on January 20, 1978. and the Union was thereafter certified as the bargaining representative. Re- spondent and the Union thereafter negotiated a collective- bargaining agreement, which was signed by the parties on April 24, 1978 (Resp. Exh. II). 9. The Charging Party began its campaign to organize Respondent's service and warehouse employees in Decem- ber, 1977. A union meeting was held on December 12, the day before the petition was filed, and Respondent first learned of union activity on or about December 15 when Union Official Edward Walling contacted Branch Manager Wilton. 6 Rocco Costanza was a supenrvisor. The General Counsel contends that Costanza was a nonsupervisory employee of Respondent, and that he was terminated unlawfully be- cause of his union activities. Respondent, on the other hand, maintains that the discharge of Costanza was not unlawful because (I) he was a "supervisor" and (2) his dis- charge was for "consistent incompetence and insubordina- tion." Having considered the whole record, I am con- strained to find that Costanza was a supervisor and outside of the protection of the Act. Costanza's employment contract (Resp. Exh. 3) indicates he became a supervisor in May 1977, thereafter being paid a weekly salary. His job description (Resp. Exh. 10(b)) shows that he possessed the responsibility of a supervisor. He was placed in charge of the service department with authority to assign work, instruct, and oversee personnel. He had authority to effectively recommend the hiring of employees and other personnel actions. Shortly after being made service manager he was also made responsible for the parts department. Costanza not only had the authority of a supervisor conferred upon him, he actually performed the duties of a supervisor-although he often failed to perform them in a satisfactory manner. In carrying out his duties he was not merely concerned with routine or clerical matters but was called upon to use "independent judgment."' I This paragraph is based on the undisputed testimony of Walling, Wilton, and Odom. 7 t is to be noted that in defining "supervisor" the Act indicates that various supervisory powers are to be read in the disjunctive. Sec. 2(11) reads: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward, or discipline other employees, or re- sponsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but re- quires the use of independent judgment. 602 CORY COFFEE SERVICES A desk clerk would take service calls and process the necessary paper work for servicing of equipment. The clerk would assist in routing the servicemen, but Costanza was responsible for making the "final decision" on when the equipment would be repaired and by whom. He had re- sponsibility for having the necessary parts and equipment available so the repairs could be made. In doing so he su- pervised warehouse personnel and order clerks as well as servicemen and repairmen.s Costanza was responsible for taking inventories and or- dering parts, although he did not perform these functions adequately. He was responsible for training servicemen-a function which he evidently did perform in a satisfactory manner.9 Costanza participated in the hiring of new employees, although he sought to minimize the part he played in this regard. He was the only one to interview DeMore before he was hired. He was also consulted on the hiring of two ser- vice clerks, Mary Lou Schmalenbach and Cheryl Gangloff. Constanza was called upon to evaluate employees. He de- nied actually making a performance review of Jean Mac- Pherson's work, but the record satisfies me that he did so. Mrs. MacPherson testified that her second evaluation was performed by Constanza, and he signed the review form indicating her performance had been "excellent."' 0 Costanza attended and participated in management meetings. He met with Office Manager Odom or Branch Manager Wilton or both on a number of occasions after the Union's petition was filed and discussed its effect. Curiously he offered suggestions on how the branch could continue its operations in the face of a strike. Odom testified credibly that Costanza came up with a "plan" whereby Costanza would take parts and brewers to San Jose and carry on the Cory service operation either from his home or the premises of his father's business. Costanza attended at least two meetings with Cory offi- cials above the branch manager's level. He testified that he met with Regional Manager Joe Schultz and Wilton on one occasion and with District Representative Dave Lavendier and Wilton on another. Costanza said he was asked to be present at the meeting with Lavendier at which he voiced "several complaints about Mr. Wilton" (at a time when Wilton "stepped out"). Costanza had an office of his own and a set of keys to the Hayward facility." He was responsible for parts inventory control. He scheduled his own work and was responsible for 8 Jean MacPherson, who worked under Costanza as an order clerk, testi- fled that she consulted Costanza whenever an emergency arose. Bench Re- pairmen Michael DeMore and John Offield and Serviceman Philip Heine- mann testified that they worked under the supervision of Costanza. It is also apparent that Costanza supervised Head Warehouseman Joseph Simon as well, although Simon, like Costanza, tried to minimize Costanza's supervi- sory authonty. It is also clear from the record that Robert Hutchison worked under the supervision of Costanza. Hutchison was subpoenaed as a witness but failed to be present when called to testify by Respondent. ' Bench Repairman Offield, a defense witness, testified that Costanza "did a pretty good job of training." 0 Costanza began evaluations of Phil Heinemann and Dean Compton. According to Costanza, Wilton told him not to finish with the evaluations. Wilton testified credibly, however, that Costanza simply never got around to finishing review of Compton's work. 1t Costanza ndicated that he did not have a key to the front door of the warehouse and was missing possibly one or two other keys scheduling the work of the servicemen. In short, he had the authority of a supervisor and functioned as one. 2 Since Co- stanza was a supervisor, his termination did not violate the Act.'3 I need not reach the issue whether Costanza's discharge would have been unlawful had he not been a supervisor. The record does indicate that Branch Manager Wilton con- sidered Constanza's performance as a service manager in- adequate and, beginning around November 1, 1977, had sought permission from higher authority to terminate him. Jean MacPherson, who quit her job as desk clerk in mid- November, 1977, testified that Costanza failed to provide her with the necessary "decision making" assistance. Office Manager Odom, who began documenting Costanza's activi- ties on November I, stated that Odom "was late almost every day," sometimes because "he made service calls on the way in," sometimes "because he overslept," and "some- times it was because he was taking his wife to college." She said his parts inventory had been "totally wrong," and "the service department was a total wreck, a mess." Costanza failed to keep promised deadlines on repairs, and there were complaints from customers (including Sears, California Actors Theatre, and Mt. Diablo) concerning ser- vice furnished under Costanza's supervision. There were two clear instances of insubordination on Costanza's part. The first occurred in mid-November, 1977, when Costanza was asked by Branch Manager Wilton to repair a brewer. Costanza refused to do so. With the office staff watching Costanza "blew up," threw papers at Wilton and "went storming out of the office." The other occasion was in mid- December, 1977, when Costanza disregarded Wilton's spe- cific instruction not to take another serviceman, Robert Hutchison (the subpoenaed former Cory employee who failed to appear when called by Respondent), with him on a four-hour service call to Mt. Diablo to repair equipment there. It is apparent from the record that Costanza did take Hutchison with him and thereafter misrepresented the fact that he did, falsely claiming that Hutchison had gone to see an attorney. 12 Branch Manager Wilton became aware of Costanza's inadequate per- formance as a supervisor in late summer or fall of 1977. Wilton took inven- tory himself in late October with the help of Office Manager Odom and discovered that Costarza had failed to properly charge off the use of Sl10000 in parts during the prior 3-month period, an error which nearly caused Wil- ton to lose his job. On or about November 1, Wilton advised Costanza he had 30 days to "straighten up" as service manager. On that day. according to Costanza, Wilton told him that "all he wanted me to do was assist in routing, train, bench and field repair, and handle the parts; that was it." Thereafter his activities were monitored closely. His comings and goings were noted by Office Manager Odom, but he continued to perform as a supervisor until January 23, 1978, when Wilton received "verbal" authority to terminate him. As Wilton testified, Costanza was a manager "in the eyes of Cory" and in his own eyes. It is also clear that he was so regarded in the eyes of other Cory employees at Hayward. Serviceman Phil Heinemann, a witness for the General Counsel, testified that when asked about the Union just before the election, "I had the impression then he was part of management." Heine- mann said his routes were so "spread out" he was running up "unbelievable" mileage and then spoke to management about it--Costanza. Wilton and Odom. Eventually, with the personal intervention of Wilton and help of Costanza and Odom he said a "decent route" was worked out. m3 It is of course possible for an employer to violate the Act by discharging a supervisor for failing to commit an unfair labor practice, such as by failing to thwart union activities. See, for example, Buddies Super Markers. 223 NLRB 950 (1976); also Belcher Towing Company, 238 NLRB 446 (1978). But Costanza was not discharged for this reason. 603 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is apparent from the testimony of Simon, Heinemann, and Costanza that in January, 1978 Wilton suspected Co- stanza was involved in union activities and was very con- cerned about that fact." The timing of Costanza's dis- charge-coming only shortly after Wilton had spoken to Costanza about his union activities but being sometime af- ter Wilton had become aware of Costanza's deficiencies as a supervisor-does point toward an improper motivation. Wilton testified, however, that he was not authorized to fire Costanza until January 23. But, in any event, I need not determine what the motivation was in the discharge of Co- stanza as he was questionably a supervisor under the Act. Findings on the charges. Paragraphs VII and VIII of the complaint, which allege the unlawful discharge, will be dis- missed as Costanza, the alleged discriminatee, was a super- visor of Respondent. Likewise, Paragraph VI(a) and (b) will be dismissed since the alleged interrogations and threats attributed to Wilton involved only Costanza. Further, Para- graph Vl(e), which alleged that Wilton gave the impression that employees' union activities were under surveillance, will be dismissed as it was not supported by probative evi- dence. The General Counsel relies on Employee Simon's testimony, which was not at all impressive (see footnote 15), especially the testimony cited and relied on by the Gen- eral Counsel: "If I recall correctly he asked, or he told me he had a list of names of who signed a card" (emphasis supplied). Such equivocal testimony does not support the allegation. Paragraphs Vl(d) and (f) were sustained by the testi- mony of Philip Heinemann and, to a limited extent, by the evidence given by Joe Simon. Simon claimed to have talked with Branch Manager Wilton about the Union "numerous times," but he gave little detail about such conversations. He said Wilton inquired of him around December 10 fol- lowing the 1977 Christmas party if he had heard "any rum- blings about union organizing." Shortly thereafter Simon stated that Wilton asked "if I had signed, or if a union representative had been around."'" Philip Heinemann testified that in December, 1977, he was asked by Branch Manager Wilton who was behind the Union and why he had signed a union card. He said Wilton asked if he would "sign to help out" as "[tJhey were running in trouble." Heinemann said the meeting had lasted 40 min- utes and had made him feel "uncomfortable." Ten or so days later Heinemann was called into Wilton's office and was again asked if he had heard who was behind the Union. 14 Heinemann, the General Counsel's most impressive witness, testified that Wilton had stated to him in early January, "I think Rocco is behind it." Odom testified that she had recorded the fact that Cory's employee Jerry Fitzsimmons had reported to Wilton that Costanza had introduced him to a union representative, but she did not remember when that had occurred. Her notes (Resp. Exh. 12) indicated that "Jerry told this to Mark on -I 1-78." '5 Wilton testified that he talked to Costanza about the Union at Terrel Restaurant on January 12, 1978: "1 had discussed the union with him in detail prior and I asked him his knowledge of it; I asked if he could be of some assistance; that if he was involved, that it should be noted he was my manager..." Wilton said he was advised verbally-not in writing-that he could fire Costanza. He said his requests for permission to terminate Costan- za were also made in "verbal" form. 16 Simon's testimony alone would hardly have supported any of the charges. He appeared to be a biased witness eager to minimize Costanza's supervisory authority. He acknowledged discussing with others the subject of how to respond to questions concerning Costanza's supervisory status. He maintained that there was "no agreement" to say Costanza was not a super- visor. Heinemann testified that in early January, 1978, Wilton asked him whether Costanza was behind the Union. And later, just before the election, he said Wilton asked him again who was behind the Union and how he was going to vote. The testimony of Heinemann also sustained the allega- tions of Paragraph Vl(c) which alleges that Office Manager Odom interrogated an employee in late December 1977. Heinemann testified that in either late December or early January Odom asked him who was behind the Union. Procedural issues. Respondent argues that all of the un- fair labor practice charges should be dismissed or, in the alternative, that the testimony of witnesses Joseph Simon and Rocco Costanza should be stricken on procedural grounds. Respondent maintains that both of these witnesses "participated in thefts" of documents belonging to Respon- dent, and that there was "unlawful complicity of Board agents in the theft of conversion of Respondent's docu- ments." The documents include a page, with several dated entries thereon, from a spiral notebook kept by Respondent's Of- fice Manager Genny Odom and 195 "purchase orders" identified by Respondent's Head Warehouseman Simon." Odom began to keep a record on Costanza on November I, 1977, after Branch Manager Wilton had counseled Costan- za concerning his "absenteeism and his poor performance" as a service manager. Odom documented a number of events involving Costanza from that time up through Janu- ary 12, 1978. Wilton took the notebook with him on the morning of January 13 when he met Costanza at the Terrell Restaurant. On that day Wilton showed Costanza the note- book and told him that he had enough information on him to have him terminated." Wilton gave Costanza an ultima- tum-resign or be fired.' Wilton returned the notebook to Odom after his restaurant meeting with Costanza, but the next day Odom was unable to locate it. Odom never saw her spiral notebook again but she observed, while testifying, one page from it (bearing entries from December 9, 1977, to January 11, 1978) lying on the table where the General Counsel's attorney and Costanza sat. When shown the page, Odom readily identified the page as being from her notebook (and received as Resp. Exh. 12). As for the other documents, the record discloses that Warehouseman Simon took the so-called purchase orders from Respondent's Hayward facility and brought them to the hearing without proper authorizations The Board's at- 17 Respondent contends that the so-called purchase orders were more properly referred to as "receipts." 's Wilton also kept a record of his own on Costanza on a yellow tablet paper (part of which was received as Resp. Exh. 14). '1 After considering the matter a couple of days Costanza declined to re- sign, and he was terminated about 10 days later. Costanza testified that Wilton told him at the restaurant meeting on January 13 that he was not to vote in the coming election and that Wilton tried to send him on an emer- gency call at the time of the election on January 20. Costanza did cast a ballot at the election which Respondent challenged. 0 This is especially true of the yellow and white copies produced by Si- mon. Simon was called upon, in connection with his employment, to retain only the pink copy of a purchase order for his warehouse office file. Simon testified that he would advise the branch manager what needed to be pur- chased, and the branch manager would then approve, "the majority of the time." According to Simon: "The branch manager hands me the original of the purchase order]; I fill it out and return it-their two copies, and keep the others." 604 CORY COFFEE SERVICES torney said she was calling for the production of the pur- chase orders on the supervisory issue-on the basis that Simon. a nonsupervisory employee, ordered supplies and disbursed monies of the Company just as Service Manager Costanza had. Such evidence was of little moment, how- ever, and, in fact, the documents were turned over to Re- spondent's counsel without ever being offered. As Respondent asserts in its brief, the record gives a "strong implication and only logical inference" that Co- stanza stole the spiral notebook. Costanza was called to testify on rebuttal after Wilton and Odom testified about the disappearance of the notebook on defense, but he was never asked whether he had taken it. Odom testified that Costanza had denied to her knowing anything about the missing notebook. Wilton testified that when he asked Co- stanza "point blank" whether he took the notebook he re- ceived "a smirk-type laugh and a quiet denial, like 'ha-ha, it is missing.'" Respondent mischaracterizes Simon's taking of the pur- chase orders as a "theft," however. since he took them from his employer's files for use in the proceeding with the inten- tion of returning them to Respondent's premises. Also. the record does not establish on the part of Board agents an "unlawful complicity" in the "theft" of documents as Re- spondent claims. Simon told the General Counsel's attor- ney that he had purchase orders in his "possession." To be sure, the General Counsel's attorney should have made a specific request therefor. either in the form of a suhpoena duces tecum or a direct request of Respondent's counsel. It is to be noted that the General Counsel's attorney main- tained that she had subpoenaed such documents. It seems doubtful, however, that such documents would fall within the category of the subpoena referred to (Specification = 3), calling for authorizations of "materials and supplies." with- out more detail being given. In any event, it can hardly be fairly stated that the General Counsel's attorney, or her supervisor," knew and approved of any plan to steal pur- chase orders from Respondent. According to statements of attorneys for the General Counsel made at the trial, one page of Odom's spiral note- book came to Board agents "in the course of [its] investiga- tion," and "no agent of the National Labor Relations Board obtained it from Respondent's office." The record does not establish, therefore, that the General Counsel's at- torney or other Board agents knew that Respondent's Ex- hibit 12 had been stolen from Respondent's offices. Nor does it allow me to infer that any Board agent was involved in taking of the spiral notebook from Respondent's offices. I am unable to conclude that the proceedings should be dismissed outright on the basis that Respondent has been denied due process of law or that its rights have been "seri- ously prejudiced by the Region's clandestine use of this pur- loined evidence" as Respondent claims.'2 None of the viola- 21 Respondent is cntical of the General Counsel's trial attorney and her supervising attorney, who appeared briefly during the trial. 22 Respondent argues that its rights under the Fourth Amendment were violated, but it has been held that the Board's proceedings are not subject to that standard. See . L R B . South Bas Dail) Breeze. 415 F.2d 360 (9th Cir. 1969). tions found herein are based on the "purloined evidence." Respondent offered the page from the spiral notebook, and its counsel took possession of the purchase orders-without objection of the General Counsel and without any offer into evidence being made with respect to them. I agree with Respondent that Costanza's testimony was undermined, and his claim of being a nonsupervisory employee was thor- oughly discredited. Also, as noted previously. Simon's testi- mony was neither impressive nor essential to any findings of violations on Respondent's part. Thus, the evidence pre- sented through Costanza and Simon. whose testimony Re- spondent seeks to have stricken, worked no prejudice to Respondent." Based on the foregoing. and the whole record, I enter the following: CON(CI.USIO(NS () L\w I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. B interrogating employees with respect to their union sympathies and activities Respondent deprived employees of their statutory rights in iolation of Section 8(a)( 1 ) of the Act. 4. Respondent did not engage in other conduct violative of the Act as alleged. Til RlMI:I)Y Having found that Respondent engaged in unfair labor practices I shall recommend that it be ordered to cease and desist therefrom and to take affirmative action in order to effectuate the policies of the Act. Based on the foregoing findings of fact, conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act. I hereby issue the fbllowing recommended: "2 Initially the Board appears to have taken a strict. exclusionarD rule with respect to the use of any questionably obtained evidence. In Hoosier ('ardl- nal Corporation, 67 NLRB 49 (1946). a case in which a Board agent obtained records from an officer of a cited union organization who was secretly a member of a rival union, the charging parts. the Board indicated it Aould not consider the evidence in order "to refrain from an) appearance of sur- reptitious dealing with one of these parties." Subsequently. the Board indi- cated it would consider unlawfully obtained evidence so long as government agents were not involved in the taking. See Air Line Pilors Associaio, 97 NLRB 929 (1951) and General Engineering. Inc, 123 NLRB 586 (1959). According to the Ninth Circuit's decision in V L.R B v South Bay Daily Breeze, supra at 365. 415, which treated the issue at some length. the Board applies the correct rule: "where the Board merely accepts and makes use of evidence illegally obtained by private individuals. exclusion of such e idence is not required by the Act." The Court in South Bay, supra, discussed the Seventh Circuit's decision in Knoll Associates, Inc. v. Federal Trade Commission FTC, 397 F.2d 530 7th Cir. 1968), the authority on which Respondent primarily relies, pointing out that in Knoll .4ssociates "the actions of the government and the thief were so related as to make :,ie thief a government agent . . " It is to be further noted that the Seventh Circuit has recently pointed out that Its Knoll Asoci- ares decision has been "effectively distinguished " See 'nirted Stares v. New. Ion and Stakes. 510 F.2d 1149 (7th Cir 1975); also L ned Siates v. Bilhngs- les, Friend and Jaeger, 440 F.2d 823 (7th Cilr 1971 ) 605 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER24 The Respondent, Cory Coffee Services, Division of Cory Food Services, Inc., Hayward, California, its officers. agents, successors, and assigns, shall: I. Cease and desist from: (a) Interrogating employees concerning their union membership and activities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the purposes and policies of the Act: 24 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (a) Post at its Hayward, California, facility copies of the attached notice marked "Appendix."25 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 32, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon re- ceipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 32, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply therewith. 2s In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Entbrcing an Order of the Na- tional Labor Relations Board." 606