Hooper's Chocolates

437 319 NLRB No. 64 HOOPER’S CHOCOLATES Ben Masri, Inc., d/b/a Hooper’s Chocolates and Bakery, Confectionery and Tobacco Workers Union Local No. 125, AFL–CIO. Case 32–CA– 14355 October 24, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS COHEN AND TRUESDALE On June 12, 1995, Administrative Law Judge Jay R. Pollack issued the attached decision. The Union filed an exception and a supporting brief and the General Counsel filed limited exceptions and a supporting brief. 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 de- cided to affirm the judge’s rulings, findings, and con- clusions as modified only to the extent consistent with this Decision and Order. In his decision, the judge found that by bypassing the Union and bargaining directly with the unit em- ployees, by withdrawing recognition from the Union as the exclusive bargaining agent of its the unit employ- ees, by granting wage increases, and by ceasing health and welfare and pension contributions, the Respondent violated Section 8(a)(5) and (1) of the Act. The judge also found that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating an employee about her statements to the Board, threatening loss of employment, and promising benefits in order to dis- courage union activities. There are no exceptions to the above findings. Both the General Counsel and the Charging Party Union have excepted however to the judge’s failure to include provisions in his recommended Order and rem- edy requiring the Respondent to make payments to the Union’s health, welfare, and pension funds on behalf of the bargaining unit employees. In addition, the Gen- eral Counsel has excepted to the judge’s failure: (1) to find that the Respondent unlawfully solicited employ- ees to resign and quit the Union, in violation of Sec- tion 8(a)(1) of the Act, (2) to include the appropriate bargaining unit in his decision, (3) to require in his recommended Order and remedy a requirement that the Respondent make employees whole for medical ex- penses incurred after it withdrew union recognition on September 1, 1994, and (4) to include provisions in his recommended Order and remedy requiring the Re- spondent to rescind unilateral changes in wages or other benefits if requested to do so by the Union. We find merit in the General Counsel’s and the Union’s exceptions. 1. The judge found that the Respondent’s president, Ben Masri, offered unit employees a $1-per-hour-wage increase if they would quit the Union. We find that by such action, the Respondent solicited employees to quit the Union and, if they did so, promised to improve their terms and conditions of employment, in violation of Section 8(a)(1) of the Act. 2. The judge found that on September 1, 1994, the Respondent unlawfully withdrew recognition from the Union. He also found that the Respondent granted wage increases on September 1, 1994, and on that date stopped making the health, welfare, and pension con- tributions required by the recently expired contract, all in violation of the Act. However, the judge failed to include provisions in his recommended Order and rem- edy requiring the Respondent to: (1) make employees whole for medical expenses incurred after the Re- spondent withdrew recognition from the Union, (2) make payments to the Union’s health, welfare, and pension funds on behalf of the bargaining unit employ- ees, and (3) rescind any unilateral changes in wages or other benefits if requested by the Union. We shall in- clude in the remedy and Order these remedial obliga- tions of the Respondent, all of which follow from the unfair labor practices that the judge found. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 4. ‘‘Respondent violated Section 8(a) (1) of the Act of the Act by coercively interrogating an employee about her statements to the Board, threatening loss of em- ployment, promising benefits in order to discourage union activities, and by soliciting employees to quit the Union.’’ AMENDED REMEDY Having found the Respondent engaged in certain un- fair labor practices, we shall order it to cease and de- sist and to take certain affirmative action to effectuate the purposes and policies of the Act. In addition to the remedy set out by the judge the Respondent shall be required to make the bargaining unit employees whole for any medical expenses ensu- ing from Respondent’s withdrawal of recognition from the Union on September 1, 1994, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), and with interest to be computed in the manner pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also be required to make contributions to the Union’s health, welfare, and VerDate 12-JAN-99 09:16 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00001 Fmt 0610 Sfmt 0610 D:\NLRB\319\31964 apps04 PsN: apps04 438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Because the provisions of employees benefit fund agreements are variable and complex, the Board does not provide for interest at a fixed rate on fund payments due as part of a ‘‘make whole’’ remedy. We therefore leave to further proceedings the question of any addi- tional amounts the Respondent must pay into benefit funds to satisfy our remedy here. These additional amounts may be determined, de- pending on the circumstances of each case, by reference to provi- sions in the documents governing the funds involved and, where there are no governing provisions, to evidence of any loss directly attributable to the unlawful action, which might include the loss of return investment of the portion of the funds withheld, additional ad- ministrative costs, etc., but no collateral losses. See Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). To the extent that an employee has made personal contributions to a fund that are ac- cepted by the fund in lieu of the employer’s delinquent contributions during the period of the delinquency, the Respondent will reimburse the employee, by the amount that the Respondent otherwise owes the fund. 2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ pension fund from the date that the Respondent stopped making payments to the funds.1 We shall also order that the Respondent cancel any unilateral changes in wages or other benefits if re- quested to do so by the Union. ORDER The National Labor Relations Board orders that the Respondent, Ben Masri, Inc., d/b/a Hooper’s Choco- lates, Oakland, California, it officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Bypassing the Union and dealing directly with its bargaining unit employees concerning wages, fringe benefits, and other terms and conditions of employ- ment. (b) Withdrawing recognition from and refusing to bargain collectively with Bakery, Confectionery and Tobacco Workers Union Local No. 125, AFL–CIO as the exclusive representative of the employees in the following appropriate bargaining unit: All full-time and regular part-time production workers, specialists, shipping and receiving em- ployees, enrober operators, candy makers and department/group leaders employed by Respond- ent at its Oakland, California facility; excluding all other employees, guards, and supervisors as defined in the Act. (c) Unilaterally changing the terms and conditions of employees represented by the Union. (d) Interrogating employees about their statements given to the National Labor Relations Board, threaten- ing employees with loss of employment, and promising benefits in order to discourage union activities, and so- liciting employees to quit the Union. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, upon request, bargain collec- tively with the Union as the exclusive representative of all employees in the appropriate bargaining unit, with regard to rates of pay, hours of employment, and other terms of employment and, if an understanding is reached, embody the understanding in a signed agree- ment. (b) Make whole the employees in the bargaining unit for any losses directly attributable to the withhold- ing of the fringe benefit trust contributions, and can- cellation of the union-sponsored health plan. (c) Make whole the respective trust funds by making contributions from the date the contributions ceased. (d) Cancel any unilateral changes in wages or other benefits if requested by the Union. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its office and facility in Oakland, Califor- nia, copies of the attached notice marked ‘‘Appen- dix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice VerDate 12-JAN-99 09:16 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00002 Fmt 0610 Sfmt 0610 D:\NLRB\319\31964 apps04 PsN: apps04 439 HOOPER’S CHOCOLATES 1 Only the General Counsel filed a posthearing brief. 2 In addition to the signatures of five unit employees, the petition included the signatures of two nonunit employees. To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT bypass the Union and deal directly with our employees concerning wages, fringe benefits, and other terms and conditions of employment. WE WILL NOT withdraw recognition from and refuse to bargain collectively with Bakery Confectionery and Tobacco Workers Union Local No. 125, AFL–CIO as the exclusive representative of the employees in the following appropriate bargaining unit: All full-time and regular part-time production workers, specialists, shipping and receiving em- ployees, enrober operators, candy makers and department/group leaders employed by Respond- ent at its Oakland, California facility; excluding all other employees, guards, and supervisors as defined in the Act. WE WILL NOT unilaterally change the terms and con- ditions of employment of our employees represented by the Union. WE WILL NOT interrogate employees about their statements given to agents of the Board, threaten em- ployees with loss of employment and promise benefits in order to discourage union activities, and solicit em- ployees to quit the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them under Section 7 of the Act. WE WILL recognize and, upon request, bargain col- lectively with the Union as the exclusive representative of our employees in the appropriate bargaining unit, with regard to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in assigned agreement. WE WILL make whole the employees in the bargain- ing unit for any losses directly attributable to the with- holding of the fringe benefit trust contributions and the cancellation of the union-sponsored health insurance plan. WE WILL make whole the respective funds whole by making contributions from the date the contributions ceased. WE WILL cancel any unilateral changes in wages or other benefits if requested by the Union. BEN MASRI, INC., D/B/A HOOPER’S CHOCOLATES Leticia Pea, Esq., for the General Counsel. Michael W. O’Neil, Esq., of Orinda, California, for the Re- spondent. David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger & Rosenfeld), of Oakland, California, for the Union. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at Oakland, California, on February 21, 1995. On November 21, 1994, Bakery, Confectionery and Tobacco Workers Union Local No. 125, AFL–CIO (the Union) filed the charge in Case 32–CA–14355 alleging that Ben Masri, Inc., d/b/a Hooper’s Chocolates (Respondent) committed cer- tain violations of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). Thereafter, on January 25, 1995, the Regional Director issued a complaint and notice of hearing against Respondent alleging that Respondent violated Section 8(a)(5) and (1) of the Act. The complaint was amended on January 26, 1995, and again at the hearing. Re- spondent filed timely answers to the complaints, denying all wrongdoing. All parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs.1 Upon the entire record and from my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT AND CONCLUSIONS I. JURISDICTION Respondent is a California corporation with an office and principal place of business located in Oakland, California, where it is engaged in the manufacture and retail and non- retail sale of chocolate candies. During the 12 months prior to issuance of the complaint, Respondent in the course and conduct of its business operations, purchased and received goods and products valued in excess of $50,000 from sellers or suppliers located outside the State of California. Accord- ingly, Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues In 1991, the Union entered into a collective-bargaining agreement with Hooper’s Chocolates covering the employees at the Employer’s facility in Oakland, California. In the sum- mer of 1993, Respondent purchased Hooper’s Chocolates. Respondent retained the employees of Hooper’s Chocolates and recognized the Union as the collective-bargaining rep- resentative of the employees. The Union and Respondent agreed to continue in effect the 1991 to 1994 collective-bar- gaining agreement. In June 1994, a petition to decertify the Union as collective-bargaining representative was circulated among Respondent’s employees and signed by five of the seven bargaining unit employees.2 Within this factual framework, the General Counsel alleges that Respondent unlawfully: (1) bargained directly with em- ployees, promised employees increased wages and benefits, VerDate 12-JAN-99 09:16 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00003 Fmt 0610 Sfmt 0610 D:\NLRB\319\31964 apps04 PsN: apps04 440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Respondent has a seasonal layoff every summer. It had such a layoff in 1993 when Masri purchased the business and again in 1994, the first year of operation by Masri. 4 Timberlake was not called to testify at the hearing. 5 I find Masri’s testimony regarding the timing of these events highly improbable and do not credit his testimony that Timberlake approached him prior to his discussion of the union contract and the $1-an-hour raise with employees. and solicited employees to withdraw from the Union; (2) withdrew recognition from the Union as exclusive bargaining representative of the employees; (3) coercively interrogated an employee about her statements given to the Board during the investigation of this case; and (4) made unilateral changes in terms and conditions of employment. Respondent admits that it withdrew recognition from the Union on September 1, 1994. However, Respondent contends that it had a good-faith doubt based on the employee peti- tion, stating that the employees did not want to be rep- resented by the Union. Respondent denies any wrongdoing and contends that it did not sponsor the petition or solicit any withdrawals from the Union. B. Facts Employee Alfredo Nodal testified that at an employee meeting in June 1994, Ben Masri, Respondent’s president, told the employees that production wasn’t high enough and that the Company was doing poorly. Masri said that he would like ‘‘everybody to quit the Union.’’ Nodal stated that the employees had fringe benefits through the Union. Masri responded that he would give the employees benefits includ- ing medicine and eyeglasses’ coverage. According to Nodal, Masri promised the employees a $1-an-hour raise if they ‘‘left the Union.’’ At the conclusion of the meeting, Masri said that it was up to the employees as to whether they want- ed to leave the Union. According to Nodal, after the meeting, Chris Timberlake, a shipping and receiving employee, asked him to sign a peti- tion stating that the employees no longer wished that the Union represent them. Timberlake said that all the employees were to sign the petition. In September 1994, after Nodal returned from a summer layoff,3 he received a $1-an-hour raise. He received the $1- an-hour wage increase. Nodal also experienced a change in the fringe benefit plans. However, he lost participation in the pension plan and lost four paid holidays which had been pro- vided for in the collective-bargaining agreement. Employee Mai Hong Nguyen also testified to attending an employee meeting in June at which Masri stated that he would give employees a $1-an-hour raise if they went non- union. According to Nguyen, employees asked about their benefits and Masri answered that he could furnish health in- surance and dental insurance but not vision or prescription coverage. Masri said that he was paying too much to the Union but if employees wanted to be nonunion, he could af- ford a $1-per-hour raise. That afternoon she was asked to sign the petition by Timberlake. Just before the July layoff, Masri told Nguyen that when she returned in September, that if he didn’t have to pay the Union, he would raise wages. Employee Alba Velez also testified that Masri stated that he could not afford to pay the Union. Masri said that if he didn’t have to pay the Union, he could afford to pay the em- ployees an additional $1-per-hour. According to Velez she attended two such meetings, one in April and one at the end of June. According to Velez at the June meeting, after offer- ing to give a $1-an-hour raise, Masri told the employees that he wanted everybody to ‘‘sign the paper’’ to ‘‘quit the Union.’’ Finally, Velez testified that Masri said that if the Union ‘‘came back’’ in September, he would have to close the business. When Velez returned in September, she re- ceived the $1-an-hour raise and the change in benefit plans. According to Velez, in January 1995, Masri told Velez that someone who spoke Spanish had talked to a Board agent. Masri said he did not know whether the employee was Nodal or Velez. Masri asked her if she had spoken to a gov- ernment agent and said that somebody had to have spoken to the government. Masri testified that Velez had gone to him and volunteered the information that she had spoken to a Board agent. I found Velez, still employed by Respondent, to be a credible witness and credit her testimony over that of Masri. Masri denied telling the employees that if they quit the Union, he would grant them a $1-an-hour raise. He also de- nied telling the employees that if he was forced to pay union benefits, he would have to close the business. However, Masri admitted that he told the employees that he would pro- vide them with health insurance during their summer layoff. In the past, the employees had not worked enough hours dur- ing the summer layoffs to qualify for health benefits under the union health plan. Masri arranged for a health plan, which presumably, he kept in effect after he withdrew rec- ognition from the Union. Masri testified that in late June, prior to the summer lay- off, he told employees that he would be renegotiating the pension plan because he couldn’t afford to keep making those payments. The Union had sent a request to reopen the contract on June 7. Masri said that the contract was going to expire while the employees were on layoff and informed the employees of the Company’s financial problems. Accord- ing to Masri he told the employees that he was going to offer the Union a $1-an-hour-wage increase in exchange for drop- ping the pension plan. He denied any further discussion of the Union. I credit the testimony of Nodal, Nguyen, and Velez over Masri’s denials. As employees of Respondent, their testimony, adverse to their Employer’s position, was given at considerable risk of economic reprisal and is not likely to be false. Multimac Products, 288 NLRB 1279, 1303 at fn. 167 (1988); Parkview Acres Convalescent Center, 255 NLRB 1164 (1981). Masri testified that Chris Timberlake4 came to him in June, 2 or 3 weeks prior to the meeting with employees con- cerning the Union, and asked what language was necessary for a petition to quit the Union.5 Masri called his lawyer and then gave Timberlake language he could use in a petition. Masri granted a $1-an-hour-wage increase in September when the employees returned from layoff. I find Masri’s tes- timony that Timberlake raised the question of withdrawing from the Union prior to Masri’s meeting regarding the Union to be inherently incredible. I do not credit it. Based on the petition, on July 30, Respondent notified the Union that it had a good-faith doubt of the Union’s majority status. Thereafter on September 1, Respondent withdrew rec- ognition from the Union citing a good-faith doubt of the Union’s majority status. Respondent granted wage increases VerDate 12-JAN-99 09:16 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00004 Fmt 0610 Sfmt 0610 D:\NLRB\319\31964 apps04 PsN: apps04 441 HOOPER’S CHOCOLATES in September and ceased making the health and welfare and pension contributions required by the recently expired con- tract. C. Analysis and Conclusions 1. Conduct undermining the Union As found above, in June, Masri told employees that the business was experiencing financial difficulties. He said that he couldn’t afford to make payments to the Union. Masri of- fered the employees a $1-per-hour raise if they quit the Union. Masri further promised to give the employees sub- stantially equivalent health benefits. He told employees that if had to continue to pay the Union he would have to close the business. Masri promised to give the employees health coverage over the summer months. Masri held this meeting and discussed these proposed changes without notice to or bargaining with the Union. Further, I find that these state- ments were made prior to the solicitation of signatures on the petition. Thus, I find that Masri’s promise of benefits and threat of closures tended to unlawfully encourage the em- ployees to sign the decertification petition. Fabric Ware- house, 294 NLRB 189, 191 (1989); Architectural Woodwork Corp., 280 NLRB 930 (1986). Further, Masri, in effect, bargained with employees offer- ing them a wage increase, health benefits, and summer bene- fits in exchange for leaving the Union and losing a pension benefit. Masri told the employees directly that he would grant them a $1-an-hour raise if they would leave the Union and that they would be able to receive such a raise if Re- spondent did not have to make pension payments to the Union. In so doing he bypassed the Union as the exclusive bargaining agent of the employees and violated Section 8(a)(5) of the Act. United Chrome Products, 288 NLRB 1176 (1988); Friederich Truck Service, 259 NLRB 1294 (1982). 2. The interrogation of Velez An employer may question an employee in the ‘‘investiga- tion of facts concerning issues raised in a complaint’’ where necessary to the defense for the pending hearing. To strike a balance between the employer’s right to prepare for trial and the employee’s right to be free from coercive interroga- tion the Board established a number of safeguards in John- nie’s Poultry Co., 146 NLRB 770, 774 (1964). The safe guards are: (1) the purpose of the questioning must be com- municated to the employee; (2) an assurance of no reprisal must be given; (3) the questioning must take place in an at- mosphere free from antiunion animus; (4) the questioning itself must not be coercive in nature; (5) the questions must be relevant to the issues involved in the complaint; (6) the employee’s subjective state of mind must not be probed; (7) the employee’s participation must be voluntary; and (8) the questions must not otherwise interfere with the statutory rights of employees. As found above, in January, prior to the hearing, Masri told Velez that he knew a Spanish-speaking employee had talked to a Board agent. Masri then asked Velez what she had told the Board agent. Masri did not give Velez any as- surances that reprisals would not be taken against her. Ac- cordingly, I find the questioning to be coercive and violative of Section 8(a)(1) of the Act. See Parkway Manor-Village Inn, 299 NLRB 574, 583 (1990); Guerdon Industries, 218 NLRB 658, 673 (1975). 3. Withdrawal of recognition The existence of a prior contract, lawful on its face, is suf- ficient to raise a dual presumption of majority, first that the Union had majority status when the contract was executed and second that a majority continued at least through the life of the contract. Following the expiration of the contract, the presumption continues, and the burden of rebutting it rests, of course, on the party who would do so. Pioneer Inn, 228 NLRB 1263 (1977). The presumption may be rebutted if the employer affirmatively establishes either (1) that at the time of the refusal the union in fact no longer enjoyed majority representative status; or (2) that the employer’s refusal was predicated on a good-faith and reasonably grounded doubt of the union’s continued majority status. The good-faith doubt must be based on objective considerations and must not have been advanced for the purpose of gaining time in which to undermine the Union. The assertion of a good-faith doubt must be raised in a context free of unfair labor practices. Terrell Machine Co., 173 NLRB 1480, 1480–1481 (1969), enfd. 427 F.2d 1088 (4th Cir. 1970); Pioneer Inn, supra. Applying these principles to the facts of the instant case, I find that Respondent has not established a good-faith doubt that the Union represented a majority of the bargaining unit employees. As found above, Masri unlawfully told the em- ployees that he would give them a $1-an-hour-wage increase if they quit the Union. He bargained directly with the em- ployees by telling them of his financial problems and prom- ising health benefits and wage increases if they quit the Union. He told the employees that he could not afford to continue in business under a union contract. Finally, he sug- gested that the employees had to sign the paper quitting the Union. The petition was circulated that same afternoon. I find the employees’ signatures on the decertification petition were unlawfully coerced by Masri. The petition obtained by such unfair labor practices cannot be used as objective con- siderations of a reasonable doubt of majority status. As can be clearly seen, the question of representative status was not raised in a context free from unfair labor practices. The ques- tion of majority status was raised after Respondent had un- lawfully coerced the bargaining unit employees into signing the antiunion petition. Accordingly, I find that Respondent unlawfully withdrew recognition of the Union. NLRB v. Sky Wolf Sales, 470 F.2d 827 (9th Cir. 1970); NLRB v. Antonio’s Restaurant, 648 F.2d 1206 (9th Cir. 1981). Having found that Respondent violated Section 8(a)(5) by withdrawing recognition from the Union, it follows that I find Respondent violated that same section of the Act when it unilaterally changed the wages and health benefit plan and eliminated the pension benefit. Chambersburg County Mar- ket, 293 NLRB 654, 656 (1989). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. VerDate 12-JAN-99 09:16 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00005 Fmt 0610 Sfmt 0610 D:\NLRB\319\31964 apps04 PsN: apps04 442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. By bypassing the Union and bargaining directly with the unit employees withdrawing recognition from the Union as the exclusive collective-bargaining agent of its Oakland, California employees, and unilaterally changing terms and conditions of employment, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1). 4. Respondent violated Section 8(a)(1) of the Act by coer- cively interrogating an employee about her statements to the Board, threatening loss of employment, and promising bene- fits in order to discourage union activities. 5. The above unfair labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action to effec- tuate the purposes and policies of the Act. Respondent shall be required to make the bargaining unit employees whole for any losses they may have suffered as a result of Respondent’s discontinuance of the required fringe benefit trust fund contributions, Zimmerman Painting & Decorating, 302 NLRB 856 (1991), to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), and with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.] VerDate 12-JAN-99 09:16 Jul 30, 1999 Jkt 183525 PO 00000 Frm 00006 Fmt 0610 Sfmt 0610 D:\NLRB\319\31964 apps04 PsN: apps04