Golub Corp.

GOLUB CORP. 515 Golub Corporation and United Food and Commercial Workers, District Union Local One, AFL–CIO– CLC. Cases 3–CA–22379–4 and 3–CA–22379–6 November 20, 2002 DECISION AND ORDER BY MEMBERS LIEBMAN, COWEN, AND BARTLETT On January 2, 2001, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Respon- dent filed exceptions and a supporting brief. The General Counsel filed an answering brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,1 and conclusions and to adopt the recommended Order as modified.2 Contrary to our dissenting colleague, we agree with the judge that the Respondent violated Section 8(a)(1) of the Act by threatening employee Arthur Crandall with disci- 1 On October 24, 2001, the Board, by its Associate Executive Secre- tary, granted the Charging Party’s unopposed motion to sever one of the consolidated cases, Case 3–RC–10971, and remanded it to Region 3 for appropriate action. Thus, that case is no longer before the Board, and we do not consider the Respondent’s exceptions there. The Respondent has excepted to some of the judge’s credibility find- ings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In adopting the judge’s credibility determina- tions, we do not rely on the judge’s finding that Loss Prevention Spe- cialist Gary Beeble testified that union organizer Stephen Phelan was not present on June 2, 2000, when Beeble threatened employee Arthur Crandall with discipline. In adopting the judge’s finding that the Respondent violated Sec. 8(a)(1) by threatening Crandall with discipline if he were to engage in union solicitation on the Respondent’s property, we do not rely on the judge’s suggestion that the Respondent had an affirmative obligation to advise Crandall concerning his rights to engage in union solicitation on the Respondent’s property. While there are no exceptions to the judge’s recommended dismissal of the allegation that the Respondent violated Sec. 8(a)(1) and (3) when it suspended Crandall, the Respondent has excepted to the judge’s finding that the General Counsel established his initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). In adopting the judge’s rec- ommended dismissal of this allegation, in the absence of exceptions, we find it unnecessary to pass on the judge’s finding that the General Counsel established his initial burden. There are no exceptions to the judge’s recommended dismissal of the allegations that the Respondent violated Sec. 8(a)(1) by interrogat- ing employees about their union activities and threatening to retaliate against employees for engaging in union actions. We note that the judge inadvertently misspelled the name of union organizer Stephen Phelan. 2 We shall substitute a new notice in accordance with our decision in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001). pline if he were to engage in union solicitation on the Respondent’s property. The facts, in brief, are as follows. On June 2, 2000, at approximately 12:30 p.m., Stephen Phelan, a full-time union organizer, and employee Arthur Crandall posi- tioned themselves on the public side of the line that de- marcated the Respondent’s property from public prop- erty. They sought to talk to employees about the Union as they entered or exited the Respondent’s premises dur- ing the shift change. Shortly thereafter, Loss Prevention Specialist Gary Beeble walked up to the demarcation line and stated that neither Phelan nor Crandall could come across the line onto the Respondent’s property. Phelan replied that, as an employee, Crandall was entitled to solicit for the Union on the Respondent’s property. Bee- ble then stated that if Phelan crossed the line, he would be arrested and if Crandall crossed the line, he would be suspended. In response, Crandall indicated that he was an employee, to which Beeble replied that Crandall was not an employee when he was out there. Over the course of this 2-minute exchange, several drivers refused to stop their cars to speak with Crandall or Phelan. At 1:30 p.m., Crandall stopped soliciting and entered the Re- spondent’s facility to begin work. It is undisputed that the Respondent did not have any rules concerning solici- tation on either public or private property. In Beth Israel Hospital v. NLRB,3 the Supreme Court stated that “the right of employees to self-organize and bargain collectively established by Section 7 . . . neces- sarily encompasses the right effectively to communicate with one another regarding self-organization at the job- site.” It is well established that off-duty employees have the right under Section 7 of the Act to solicit for the Un- ion during nonwork time in nonwork areas. In Nashville Plastics Products,4 the Board held that an employer vio- lated Section 8(a)(1) of the Act by prohibiting off-duty employees from engaging in union solicitation and dis- tribution of union literature on company property during nonwork time in nonwork areas. The Board stated “an off-duty employee seeking access to his employer’s property to distribute union handbills, unlike a non- employee union organizer, falls within the scope of Su- preme Court decisions protecting workplace organizing activities.”5 Moreover, it is settled law that except where justified by business reasons, a rule which denies off- duty employees entry to outside nonworking areas 3 437 U.S. 483, 491 (1978). 4 313 NLRB 462, 463 (1993). 5 See also New York New York Hotel & Casino, 334 NLRB 762, 762 (2001). 338 NLRB No. 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 516 unlawfully interferes with employees’ Section 7 rights and violates Section 8(a)(1) of the Act.6 Here, there is no evidence or argument that the Re- spondent had a no-access rule restricting the solicitation and/or distribution activities of off-duty employees, let alone a rule that was justified by business reasons.7 To the contrary, as acknowledged by the dissent, Crandall had previously engaged in solicitation and handbilling for the Union in nonwork areas without any intervention by the Respondent. In sharp contrast to the Respondent’s prior practice, Beeble’s threat to suspend Crandall—which was not couched in terms of the Respondent’s purported concern about traffic congestion—effectively announced a prohi- bition against any form of solicitation on the Respon- dent’s parking lot, regardless of the circumstances. In the absence of a legitimate business reason for such an absolute prohibition, Beeble’s threat violated Section 8(a)(1) of the Act.8 Moreover, even if Beeble had com- municated a concern about traffic congestion to Crandall and had limited the prohibition on solicitation accord- ingly, the record still would not support a finding that his threat was justified by business reasons. Aside from Beeble’s conclusory testimony, there was no evidence that traffic leaving and entering the Respondent’s facility was impeded by union solicitation activities.9 6 Tri-County Medical Center, 222 NLRB 1089 (1976). See also Or- ange Memorial Hospital Corp., 285 NLRB 1099 (1987); Presbyterian Medical Center, 227 NLRB 904 (1977), enfd. 586 F.2d 165 (10th Cir. 1978). 7 See Tri-County Medical Center, supra at 1090 (employer unlaw- fully prevented off-duty employee from distributing literature on its parking lot where there was no evidence employer had a valid no- access rule). 8 St. Luke’s Hospital, 300 NLRB 836, 837 (1990). In St. Luke’s Hospital, the respondent’s security director ordered an employee to stop distributing union literature on the employees’ parking lot. Al- though the security director testified that the respondent had established a policy of prohibiting literature from being placed on automobiles because of the litter problem it created, he did not mention this policy to the employee. The Board found that because the respondent did not explain that its problem with the employees’ handbilling activities was limited to the employee’s method of distribution, its no-access rule was overbroad and thus violated Sec. 8(a)(1). 9 The Respondent introduced no company records or reports docu- menting any past problems with traffic as a result of union solicita- tion/distribution activities nor was any other employee of the Respon- dent called to testify regarding any past problems. See Nashville Plas- tic Products, supra at 466–467 (1993) (adopting judge’s finding reject- ing plant manager’s testimony that employees’ handbilling caused traffic congestion because no employee witnesses were aware of any traffic problems caused by their handbilling activity); St. Luke’s Hospi- tal, supra at 837 (employer introduced no company records or reports, and vague, generalized testimony was insufficient to establish legiti- mate business consideration that would warrant interference with em- ployees’ protected right to distribute literature in parking lot); and Orange Memorial Hospital, supra at 1100 (employer failed to provide Our dissenting colleague would find that the Respon- dent did not violate the Act because Beeble’s intent in preventing Crandall from soliciting on the Respondent’s property was not to interfere with Crandall’s union so- licitation activities, but rather to prevent traffic conges- tion.10 The Board has repeatedly stated, however, that “‘motive’ or ‘intent’ is not the critical element of an 8(a)(1) violation.”11 Rather, the test is whether the em- ployer’s conduct reasonably tends to interfere with the free exercise of employee rights under the Act.12 Thus, irrespective of Beeble’s intent, by preventing Crandall, an off-duty employee, from soliciting on the Respon- dent’s property, the Respondent unlawfully interfered with Crandall’s Section 7 right to solicit for the Union on nonworking time in a nonwork area.13 We also find no merit in our colleague’s alternative finding that Beeble’s conduct was de minimis.14 First, we cannot agree that Beeble’s threat to suspend Crandall if he engaged in any future protected activity can be viewed as a de minimis violation. This was an explicit threat of suspension, and that is by no means a “de minimis” matter, certainly not to the threatened em- ployee. Second, Beeble’s threat clearly had a reasonable an adequate factual basis for its claim that its access policy promoted patients’ security where there was no evidence that patients frequented outside nonwork areas). 10 We reject the dissent’s assertion that Beeble’s sole purpose in threatening Crandall not to solicit on the Respondent’s property was to prevent traffic congestion on the Respondent’s property during a shift change. Restricting Crandall to the public side of the Respondent’s property line would not reduce traffic backups because traffic conges- tion would be the same regardless of which side of the property line Crandall was standing. 11 Guerdon Industries, 218 NLRB 658, 661 fn. 23 (1975). 12 See Guerdon Industries, supra at 661 fn. 23; Cooper Thermometer Co., 154 NLRB 502, 503 fn. 2 (1965). As the Board held in Hanes Hosiery, Inc., 219 NLRB 338 (1975), We long have recognized that the test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on Re- spondent’s motive, courtesy, or gentleness, or on whether the coercion succeeded or failed. The test is whether Respondent has engaged in conduct which reasonably tends to interfere with the free exercise of employee rights under the Act. 13 We reject our colleague’s view that the facts Respondent never in- terfered with Crandall’s solicitation/distribution activities in the past and that there has been no prior allegation that the Respondent inter- fered with employees’ union solicitation/distribution activities support a finding that the Respondent did not violate the Act. In determining whether a respondent has violated the Act, it is of no consequence that the respondent may not have previously engaged in other unlawful acts. Regency at the Rodeway Inn, 255 NLRB 961, 961–962 (1981). Thus, that in the past the Respondent has not interfered with employees’ union solicitation/distribution activities does not insulate it from re- sponsibility for the interference involved here. 14 Our colleague has raised this issue sua sponte. The Respondent did not argue, either to the judge or in its exceptions to the Board, that Beeble’s conduct was de minimis. GOLUB CORP. 517 tendency to chill the future exercise of Section 7 rights not only of Crandall but also of other employees. As a result of Beeble’s threat, Crandall was unable freely to engage in union solicitation on the Respondent’s prop- erty, and several employees declined to stop their cars and speak with Crandall or Phelan during Beeble’s con- versation with them.15 We therefore cannot agree that Beeble’s threat, even if it was an isolated incident, can be viewed as “de minimis.” Third, contrary to our col- league’s assertion, it is irrelevant that there have been no other allegations of unlawful interference with an em- ployee’s union solicitation/distribution activities.16 Fourth, that the Respondent did not threaten Crandall pursuant to any preexisting rules prohibiting solicita- tion/distribution on its property does not make its con- duct de minimis. The fact remains that Crandall was threatened with suspension if he engaged in future solici- tation on the parking lot and that this conduct reasonably tends to interfere with the free exercise of employees’ rights under the Act.17 Finally, we find the cases cited by our colleague involving de minimis conduct are dis- tinguishable because the unlawful conduct there had been substantially remedied or effectively contradicted by later conduct.18 15 In Ryder Student Transportation Service, 333 NLRB 9, 11 (2001), the respondent contended that its misconduct in enforcing its unwritten no-access policy was de minimis as employees were not prevented from distributing literature, and that there was only one incident in which the employer interfered with employees’ handbilling activities. The judge, who was affirmed by the Board, rejected the respondent’s assertion, noting that whether the respondent’s conduct succeeded or failed was irrelevant as the test was whether the respondent’s conduct reasonably tended to interfere with employee rights. The judge went on to observe that because five employees stopped handbilling after the respondent informed them of its policy, the respondent’s conduct caused such interference. 16 See Regency at the Rodeway Inn, supra at 961 (rejecting absence of prior unfair labor practices by employer as support for finding man- ager’s interrogation to be de minimis). 17 Ladies Garment Workers (Twin-Kee Mfg. Co.), 130 NLRB 614 (1961), cited by our colleague, is distinguishable from this case. There, the remarks at issue constituted only threats of possible retaliation against employees who might cross a picket line. They were also made at the beginning of a strike that had lasted over 2 months without any other unlawful activity. Here, by contrast, Beeble explicitly threatened Crandall that he would be suspended if he violated the policy. This conduct, as we have found, has a reasonable tendency to chill future activity protected by the Act. 18 See Bellinger Shipyards, 227 NLRB 620 (1976) (unlawful no- solicitation rule subsequently replaced by new rule); Musicians Local 76 (Jimmy Wakely Show), 202 NLRB 620 (1973) (union’s threat of “charges” leading to fine or expulsion of employee subsequently with- drawn); Wichita Eagle & Beacon Publishing Co., 206 NLRB 55 (1973) (supervisor’s filing of decertification petition found de minimis where employer stated to union that it would continue to bargain with union and thereafter supervisor withdrew petition); and Square D Co., 204 NLRB 154 (1973) (supervisor’s comment to union steward that union should stop filing grievances over walk-space obstructions found de Contrary to our colleague, we therefore find that Cran- dall, an off-duty employee, had a Section 7 right to so- licit for the Union during nonworking hours on the Re- spondent’s parking lot. Thus, we affirm the judge’s find- ing that by threatening to suspend Crandall if he engaged in union solicitation on the Respondent’s property, the Respondent violated Section 8(a)(1) of the Act.19 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Golub Corporation, Schenectady, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the attached notice for that of the adminis- trative law judge. MEMBER COWEN, dissenting. Contrary to my colleagues, I do not find that the Re- spondent, through Loss Prevention Specialist Gary Bee- ble, violated Section 8(a)(1) of the Act by instructing employee Arthur Crandall not to stop cars or trucks on the Respondent’s property. As set forth below, Beeble’s instruction was not directed at Crandall’s union solicita- tion activity, but rather Beeble’s sole objective was to prevent traffic congestion on the Respondent’s premises.1 The evidence shows that on June 2, 2000, at approxi- mately 12:30 p.m., Crandall and union organizer Steve Phelan were stopping traffic at the entrance to Respon- dent’s facility and speaking to the employees in the cars entering and exiting the facility. It is undisputed that there was an increase in incoming and outgoing traffic at this time because the shifts were changing. Specifically, during the hour that Crandall and Phelan were at this location, approximately 75 to 100 cars entered and exited the facility. As a result of this increase in traffic, there was a potential for traffic congestion. Moreover, in the past, traffic congestion had been a problem as a result of the Union’s solicitation activities, and the Respondent had called the police on prior occasions to deal with this issue. minimis in view of absence of retaliatory action to union’s continued filing of multiple grievances over issue and in view of employer’s continued processing of multiple subsequent grievances concerning issue). 19 See Valeo Sylvania, L.L.C., 334 NLRB 133, 139 (2001). 1 I join my colleagues in finding that it is not legally necessary to pass on the judge’s finding that the General Counsel satisfied his initial Wright Line burden of showing that Crandall’s Union activity was a motivating factor in the Respondent’s decision to suspend him, given the overwhelming rebuttal evidence offered by the Respondent. Never- theless, I note that the evidence in this case, taken as a whole, does not support even a prima facie case of unlawful motivation. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 518 According to Beeble, who was not discredited on these points, as the Respondent’s loss prevention specialist, it was one of his responsibilities to maintain a smooth traf- fic flow on the Respondent’s property. As such, Beeble was dispatched to the entrance of the facility in order to prevent traffic from backing up. Thus, when Beeble told Crandall that he could not cross over onto the Respon- dent’s premises, it was not his purpose to prohibit Cran- dall’s union solicitation activities, and he did not tell Crandall that he could not solicit for the Union. Rather, Beeble’s sole objective in ordering Crandall not to stop cars or trucks on the Respondent’s property was to pre- vent traffic congestion on the Respondent’s property during the shift change, thereby enabling employees and suppliers to enter and exit the facility without impedi- ment. Indeed, in my view, Beeble’s instruction to Cran- dall had no connection to Crandall’s union solicitation activity. My position is further supported by the fact that it is undisputed that, prior to the incident in question, Cran- dall frequently engaged in solicitation and handbilling for the Union on the Respondent’s parking lot and other nonwork areas. The Respondent was aware of Cran- dall’s union solicitation/distribution activities and never sought to prohibit them. Indeed, the Union engaged in oral solicitation and distribution of literature throughout its organizing drive. Between January and June 2000, the Union had handbilled on the Employer’s parking lot two and three times a week, and there is no evidence of any other allegation that the Respondent interfered with these activities. It is nonsensical that the Respondent would suddenly prohibit employees’ union solicitation activities, which had previously been permitted, without any good reason. In fact, the Respondent had good rea- son. In sum, contrary to my colleagues, I find that the Re- spondent was legitimately concerned that Crandall’s un- ion solicitation activities would cause traffic congestion on the Respondent’s property, and its purpose in instruct- ing Crandall not to stop cars on its property was not to interfere with Crandall’s Section 7 rights, but rather to insure an uninterrupted traffic flow into and out of its parking lot. Alternatively, I find that even assuming, arguendo, that Beeble’s instruction to Crandall was directed at his Sec- tion 7 activity, I would still not find an 8(a)(1) violation here as the effect of Beeble’s conduct was de minimis, and it would not serve the purposes of the statute to find a violation. The Board has previously held that certain conduct, limited in impact, significance, and effect does not rise to the level of constituting a violation, even though the same conduct, if engaged in on a more wide- spread basis, or under circumstances in which its impact can be anticipated to be significant, would constitute a violation. The Board has often found such cases involve de minimis conduct not rising to the level of a violation.2 Here, it is undisputed that the Respondent did not have any rule prohibiting union solicitation/distribution on its property. Moreover, as noted above, prior to the conduct at issue herein, employees, including Crandall, fre- quently solicited and handbilled for the Union in non- work areas, and there is no evidence of any other allega- tion that the Respondent sought to prohibit such activi- ties. Thus, this single, isolated incident could not have a reasonable tendency to interfere with protected rights.3 Moreover, the alleged misconduct occurred in circum- stances in which its impact did not extend beyond the employee directly involved. Therefore, I conclude that the conduct involved herein is not substantial enough to justify finding a violation and a remedial order based thereon. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT by means of threats of discipline enforce a rule prohibiting employees from engaging in lawful union solicitations on our premises. 2 See, e.g., Bellinger Shipyards, 227 NLRB 620 (1976); Musicians Local 76 (Jimmy Wakely Show), 202 NLRB 620, 621 (1973); Wichita Eagle & Beacon Publishing Co., 206 NLRB 55 (1973); and Square D Co., 204 NLRB 154 (1973). 3 In Ladies Garment Workers (Twin-Kee Mfg. Co.), 130 NLRB 614, 616 (1961), the Board held certain remarks too isolated to warrant issuance of a remedial order because they had been the only unlawful ones made during a strike lasting over 2 months, they had been limited to two employees, and there had been no evidence of other unlawful activity. See also Wichita Eagle & Beacon Publishing, supra at 55. GOLUB CORP. 519 WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. GOLUB CORPORATION Robert A. Ellison, Esq., for the General Counsel. Franklin H. Goldberger, Esq., of Albany, New York, for the Respondent. Gene M. J. Szuflita, Esq., of New York, New York, for the Charging Party-Petitioner. DECISION STATEMENT OF THE CASE BRUCE D. ROSENSTEIN, Administrative Law Judge. This case was tried before me on September 11 and 12, 2000,1 in Albany, New York, pursuant to a consolidated complaint and notice of hearing (the complaint) issued by the Regional Director for Region 3 of the National Labor Relations Board (the Board) on July 31. In addition, on August 2, the Regional Director or- dered consolidated certain issues arising from the representa- tion election in Case 3–RC–10971. The complaint, based on original and amended charges in Cases 3–CA–22379–4 and 3– CA–22379–6, filed by United Food and Commercial Workers, District Union Local One, AFL–CIO–CLC (the Charging Party or Union), alleges that Golub Corporation (the Respondent or Golub) has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The Union’s representation petition was filed on April 25, and sought an election among certain of Respondent’s ware- house employees located in Voorheesville, Waterford, Colonie, and Rotterdam, New York. An election was held on June 22, pursuant to a Decision and Direction of Election issued by the Regional Director on May 24. The tally of ballots prepared at the conclusion of the election revealed that of approximately 590 eligible voters, 492 cast ballots, of which 148 cast ballots for the Petitioner, 325 cast ballots against the Petitioner, and there were 19 challenged ballots, a number insufficient to affect the results of the election. The Union filed timely objections to conduct affecting the results of the election on June 28. In support of Objections 2, 3, and 4 and its unnumbered “catchall” objection, the Union presented evidence that, during the critical period, Respondent engaged in objectionable conduct. In the complaint, the General Counsel alleges that certain conduct described in paragraphs 6, 7, and 8, which is also alleged as objectionable conduct in Objection 2 and the “catchall” objec- tion raise material issues of fact and were consolidated for hear- ing before an administrative law judge. The Respondent filed a timely answer to the complaint denying that it had committed any violation of the Act. Issues The complaint alleges that the Respondent engaged in inde- pendent violations of Section 8(a)(1) of the Act by interrogating employees and prohibiting employees from engaging in lawful union solicitation on the Respondent’s premises, including the 1 All dates are in 2000, unless otherwise indicated. parking lot. Additionally, the complaint alleges that on May 26, Respondent suspended the employment of leading union adherent Arthur Crandall, in violation of Section 8(a)(1) and (3) of the Act. The objections to the election track the complaint in part or raise similar issues. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Charging Party, and the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent is a corporation engaged in the operation of retail supermarkets, with its principal place of business located in Schenectady, New York. It annually derives gross revenues in excess of $500,000 and purchases and receives at its facili- ties located within the State of New York goods valued in ex- cess of $50,000 directly from points located outside the State of New York. The Respondent admits and I find that it is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Union commenced its organizing drive at Respondent in January 2000, and continued a campaign of oral solicitation and distribution of literature up to the June 22 election. Shortly after the organizing campaign commenced, the Respondent directed that a line be painted to divide the public thoroughfares from its private property. In January 2000, the Respondent held its regularly scheduled annual meetings with all employees of the facility including the second-shift grocery warehouse employees and addressed the state of the Company. During the course of the meeting, a number of employees asked questions about the union organizing campaign. Crandall spoke and voiced his opinion that the pension and stock bonus plan pro- vided to employees by Golub was inadequate and the Union had a better plan. Claude Sawyer, second-shift grocery super- visor, informed the employees that based on his personal ex- perience, it was very difficult to decertify a union once it was voted into a facility. He described those difficulties during a period of time when he was a member of the Union and em- ployed at Levonian Brothers, a former employer. At all material times, Tom Bird is the director of warehous- ing, Wesley Holloway holds the position of manager, associate relations and corporate diversity initiatives in the human re- sources department, and Shawn Carney and Jason Mitchell serve as line managers on the second shift in the grocery ware- house. In addition to employee and union supporter Crandall, Stephen Phelan is employed as a full-time organizer for the Union. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 520 B. The 8(a)(1) Violations 1. Allegations concerning Claude Sawyer The General Counsel alleges in paragraphs 6(a) and (b) of the complaint that on two occasions in February 2000, Sawyer interrogated employees concerning their union activities and threatened to retaliate against employees who engage in union activities. The general test applied to determine whether employer statements violate Section 8(a)(1) of the Act is “whether the employer engaged in conduct which reasonably tends to inter- fere with, restrain, or coerce employees in the free exercise of rights under the Act.” NLRB v. Aimet, Inc., 987 F.2d 445 (7th Cir. 1993); Reeves Bros., 320 NLRB 1082 (1996). According to Crandall, sometime in early February 2000, while both he and Sawyer were in the warehouse, they engaged in a 90-minute conversation about the Union. Each individual expressed their feelings about labor organizations including whether a union would be right for the employees at Respon- dent. Crandall told Sawyer that he had not made up his mind about the Union but he was leaning in that direction. Crandall specifically testified that Sawyer did not threaten him in any way and it was a friendly give-and-take conversation between the two of them in which the pros and cons about unions were discussed. There is no dispute that the Respondent knew of Crandall’s participation in the Union and in February 2000, it was common knowledge that Crandall had assumed a leader- ship role in trying to organize his fellow employees. Indeed, Crandall handed out and received union authorization cards from employees, distributed literature about the Union, and spoke to fellow employees about the benefits of the Union. Based on the foregoing, and particularly noting the testimony of Crandall that Sawyer did not threaten him in any way during the early February 2000 conversation, I find that Sawyer did not interrogate Crandall about his union activities. Therefore, I recommend that the allegations in paragraph 6(a) of the com- plaint be dismissed.2 In regard to paragraph 6(b) of the complaint, Crandall testi- fied that on February 21, he had a conversation with Sawyer around 9:30 p.m. at the far end of the 56th aisle in the ware- house.3 Sawyer approached Crandall and informed him that a number of employee associates had told him that Crandall was spreading a rumor about the reasons that he left Levonian Brothers. 4 Sawyer told Crandall that this was character assas- sination, it is a lie, and he was offended by it. Crandall denied that he was spreading the rumor. Sawyer said, “I will get a lawyer to clear my name.” Crandall said, “that he heard about the rumor but he did not start it but if it was true, you can not stop it.” Crandall testified that the word “Union” did not come up during the 5-minute conversation. At the end of the conver- 2 The General Counsel concedes in its posthearing brief that he “was unable to present evidence in support thereof.” See fn. 2. 3 Crandall has been employed for approximately 20 years in the Re- spondent’s Rotterdam grocery warehouse. He is a forklift driver and works on the second shift from 2 to 10:30 p.m. 4 The rumor alleged that his prior employer terminated Sawyer be- cause of stealing. sation, Sawyer told Crandall that he should not be spreading that type of venom. By letter dated February 23, the director of organizing for the Union sought a meeting with Sawyer to discuss the facts sur- rounding the rumor (R. Exh. 1). Sawyer did not respond to the letter, as the rumor faded away dying a natural death. Based on the foregoing, and particularly relying on Cran- dall’s testimony, I conclude that Sawyer did not interrogate Crandall about his union activities or threaten to retaliate against him because of such activities. Rather, the conversation concerned what Sawyer believed to be the spreading of a mali- cious rumor and was initiated with Crandall because two asso- ciates had attributed its origin to him. The Union was not men- tioned during the conversation, Sawyer took no action against anyone including Crandall and the matter ended shortly after it was raised. Accordingly, I recommend that paragraph 6(b) of the complaint be dismissed. Mid-State, Inc., 331 NLRB 1372 (2000). 2. Allegations concerning Gary Beeble The General Counsel alleges in paragraph 6(c) of the com- plaint that on June 2, Respondent by means of threats of arrest and discipline enforced a rule prohibiting employees from en- gaging in lawful union solicitations on the Respondent’s prem- ises, including its parking lot. This conduct was also alleged in the Petitioner’s unnumbered “catchall” objection. Both Phalen and Crandall credibly testified that on June 2, they met for lunch at 12:30 p.m., and decided to distribute lit- erature and solicit employees about the Union who were enter- ing and leaving the premises during the Respondent’s regularly scheduled shift change. For this purpose, Phalen went to the parking lot and sought to retrieve leaflets kept in his car trunk. Due to inadvertence, Phalen neglected to place any Union leaf- lets in his trunk. Accordingly, Phalen and Crandall positioned themselves at the end of the divider on Dunnville Road, close to a stop sign on the public side of the line, to talk to employees about the Union as they entered or exited the Respondent’s premises. Both Phalen and Crandall wore union hats and testi- fied that during the hour they were positioned at the stop sign, approximately 100 cars and trucks came in and out of the facil- ity. Around 12:40 p.m., Beeble came up to the line and said, “that neither Phalen or Crandall could come across the line onto private property.” Phalen said, “that since Crandall was an employee, he could cross the line and go onto the private prop- erty.” Beeble replied, “that if you cross the line, he would have him arrested and if Crandall crosses the line, he will have him suspended.” Crandall said, “I am an associate.” Beeble said, “you are not an associate when you are out here.” Phelan told Beeble, “that if you cross the line onto the public side, I will call the police if you interfere with our union activities.” Dur- ing the course of this brief 2-minute conversation, a number of the drivers declined to stop their cars and talk with Phalen or Crandall. At 1:30 p.m., Crandall ceased his solicitation activi- ties and returned to the warehouse to commence work. Beeble testified that he was aware that the Union handbilled 2–3 times a week between January and June 2000, and often stopped cars to talk to drivers about the Union. He was aware that Crandall often participated in these activities and was an GOLUB CORP. 521 active supporter of the Union. On June 2, Beeble observed that traffic was beginning to backup, both on public and private property, and he approached Crandall to instruct him not to stop cars or trucks on private property. Beeble testified that Phalen was not present on June 2, and he did not have a conversation with him. He also testified that he did not threaten Phalen or Crandall with arrest or discipline. The promulgation and enforcement of a rule prohibiting un- ion solicitation by employees on company property, outside of working hours, is presumed to violate the Act in the absence of evidence of special circumstances making the rule necessary in order to maintain production or discipline. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803–804 (1945); and Peyton Packing Co., 49 NLRB 828, 843 (1943). In the subject case, Beeble testified that the Respondent did not have any rules against solicitation on company property. Based on the totality of the record, I do not credit Beeble’s testimony that he did not threaten to have Phalen arrested or did not threaten Crandall with discipline if he crossed the line onto private property for the following reasons. First, I note that Beeble appeared to be defensive in his responses to questions and somewhat evasive on questioning by the General Counsel and the Charging Party. Second, contrary to Beeble, I credit the testimony of Phalen and Crandall that both of them were present on June 2, and engaged in a conversation with Beeble. Thus, I do not credit Beeble’s denials and find that he threat- ened both Phalen and Crandall with arrest and discipline, at a time when the Respondent did not have any rules in place gov- erning solicitation either on public or private property. More- over, I find as an employee of Respondent, that Crandall was privileged to engage in solicitation on private property in all nonwork areas and in work areas when he and the person being solicited were not engaged in work. At no time during the June 2 conversation, did Beeble make this clear. Accordingly, I find that when Beeble threatened Crandall with discipline, Respon- dent violated Section 8(a)(1) of the Act and engaged in objec- tionable conduct. C. The 8(a)(1) and (3) Violations The General Counsel alleges in paragraph 7 of the com- plaint, as does the Union in objection 2, that Respondent sus- pended the employment of Arthur Crandall because of his ac- tivities and support on behalf of the Union. The Respondent argues that Crandall was suspended for le- gitimate business reasons because he did not receive permission to leave the work area in violation of its work rules, section 2.3 #12 (R. Exh. 2). About a week prior to May 25, Crandall complained to one of the line supervisors that Respondent was not taking down signs that were posted around the timeclock area that said, “No, not in our house.” On May 25 (Thursday), around 2 p.m., Crandall put a “Yes” sign on his forklift truck. Later that after- noon, around 4 p.m., Grocery Superintendent David St. John removed the “Yes” sign from Crandall’s truck. Crandall con- fronted St. John and informed him that there are antiunion post- ers near the timeclock that have not been taken down. Crandall then proceeded to St. John’s office and pointed to the antiunion signs that were posted on the wall by the timeclock. While St. John initially said he would not take down the signs around the timeclock, they were ultimately removed. Later that evening, between 7:30 and 9 p.m., Crandall en- gaged in a conversation with Supervisor Carney in the ware- house. They debated the benefits of the Union with Crandall trying to convince Carney why a union was necessary at Golub and Carney pointing out how efficiently the warehouse was run and a union was not necessary. Around 9 p.m., Crandall in- formed Carney that if work was slow or not enough equipment was available for the third-shift forklift operators, he would like to leave at 10 p.m., as there was a union meeting scheduled.5 Carney informed Crandall that he would have to check on the equipment, and that Crandall should come to the office around 9:30 p.m. to determine if he could leave early. Indeed, Carney testified that there was no doubt in his mind that he told Crandall to come back and check with him after he spoke to the third-shift supervisor and determined if enough equipment was available. Supervisor Mitchell testified that on May 25, he was 10 feet away from the conversation between Carney and Cran- dall. He also affirmed that he specifically heard Crandall’s request to leave early to attend a union meeting and Carney informed Crandall that he must check with him at the office around 9:30 p.m., as to whether he could leave early. The con- versation ended around 9 p.m., and as Carney was proceeding to the office to determine how much equipment was needed for the third shift, employee Mitch Hutchinson asked whether he could leave early that evening. Upon arriving at the office and checking with the third-shift supervisor, Carney learned that because there was one vacant forklift that was parked outside the office, only one forklift driver could be released early. Around 9:05 p.m., Rick Wysomski came to the office and in- quired if he could leave early. Since he was the senior lift driver, Carney gave Wysomski permission to leave early and he punched out at 9:23 p.m. Crandall, who testified that Carney gave him permission to leave early, punched out at 9:26 p.m. Around 9:15 p.m., Carney paged Crandall to inform him that he could leave around 10 p.m., as the third-shift supervisor apprised him that his employees needed several additional fork- lift trucks. Since Crandall did not answer the first page, Mitchell paged him a second time between 9:15 and 9:30 p.m. During this time period, Mitchell located Crandall’s lift sheet that showed he stopped work at 9:15 p.m. Both Carney and Mitchell waited until 10 p.m., when the computer timecard system was updated, and verified that Crandall punched out at 9:26 p.m. Carney asked the other supervisors on his shift as well as the third shift whether any of them gave Crandall per- mission to leave early on May 25. None of the supervisors 5 There is a practice at the warehouse that employees including fork- lift drivers may leave early without pay if there is a shortage of work or not enough equipment available for the third-shift employees who start on staggered shifts at 9:30, 10, and 10:30 p.m. The decision as to which employees may leave early is determined by the designated line supervisor and then is communicated to the employees based on their seniority. In the subject case, Crandall is second in seniority to Rick Wysomski. Crandall admitted that he had to speak louder than normal because the conversation took place near the dock end of the aisle and there was a lot of noise. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 522 informed Carney that permission was given to Crandall to leave early that evening.6 Crandall was not scheduled to work on May 26 (Friday) and was off on May 27 (Saturday), May 28 (Sunday), and May 29, Memorial Day Monday. He returned to work on May 30 (Tuesday), and after punching in, was told to report to the of- fice. A number of supervisors including St. John, Sawyer, and Carney were present. St. John informed Crandall that he was being suspended for 2 days because he left more than 59 min- utes early last Thursday before the end of his shift without per- mission. Crandall replied, “that he had permission and that Carney told him he could leave early.” Carney denied that he had given Crandall permission to leave early. Carney provided Crandall with the associate documentation form to sign that set forth the infraction and the work rule violated, but Crandall refused to sign (GC Exh. 3). Crandall served the 2-day suspen- sion on May 30 and 31, and returned to work on June 1. In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board announced the following causation test in all cases alleging violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation. First, the General Counsel must make a prima facie showing sufficient to support the in- ference that protected conduct was a “motivating factor” in the employer decision. On such a showing, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. The United States Supreme Court approved and adopted the Board’s Wright Line test in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric, 321 NLRB 278 fn. 12 (1996), the Board restated the test as follows. The General Counsel has the burden to persuade that antiunion sentiment was a substantial or motivating factor in the chal- lenged employer decision. The burden of persuasion then shifts to the employer to prove its affirmative defense that it would have taken the same action even if the employee had not en- gaged in protected activity. For the following reasons, I find that the General Counsel has made a strong showing that the Respondent was motivated by antiunion considerations in suspending Crandall. First, there is no dispute that Respondent knew that Crandall was one of the leading union adherents at the Rotterdam warehouse and supervisors frequently engaged in conversations with Crandall about the Union. Second, on the same day of the suspension, the Respondent removed a “Yes” sign from Crandall’s forklift truck and was slow in removing the “No” signs posted around the timeclock. Third, between 7:30 and 9 p.m. on May 25, Carney engaged in a conversation with Crandall, much of which was devoted to the Union. The burden shifts to the Respondent to establish that the same action would have taken place even in the absence of the employee’s protected conduct. 6 Carney credibly testified that even after May 25 when Crandall re- quested to leave early, that Crandall had to wait until Carney checked with the third-shift supervisor before he was apprised whether he could leave work. The Respondent contends that Crandall was suspended for 2 days because he failed to receive permission to leave work. The violation of work rule section 2.13 #12 may be cause for termination of an associate without prior warning. In the sub- ject case, the Respondent determined to suspend Crandall for 2 days. In agreement with the Respondent, I find that it would have taken the same action even in the absence of Crandall’s union activities. First, I find that at the time that Crandall asked Car- ney for permission to leave early on May 25, Carney had no knowledge whether work or equipment requirements would permit any employee to leave early. It was not until shortly after 9 p.m. that Carney first learned, after checking with the third-shift supervisor, that one lift truck was available. There- fore, he determined that only one employee could leave early on that evening. When Wysomski stopped by the office around 9:05 p.m. and inquired whether he could leave early, that was the first time that Carney was able to communicate with anyone that only one employee could leave that evening. Since Wy- somski had the highest seniority, he was the employee that was given permission to leave early. Carney did not see or speak to Crandall since their conversation around 9 p.m., when Crandall had requested permission to leave early. Second, I fully credit the testimony of Carney and Mitchell who both testified that Crandall was told to check at the office around 9:30 p.m. to see if he could leave early. Both of these individuals testified in a clear and concise manner, even under extensive cross- examination, and impressed me as sincere witnesses who were truthfully relating what took place on the evening of May 25. This testimony and the fact that Carney could not have known until sometime between 9 and 9:05 p.m. as to whether any fork- lift driver could leave early, convinces me that Crandall’s tes- timony that he was given permission to leave early is not accu- rate. The Respondent introduced a number of exhibits to support its position that it did not engage in disparate treatment when it issued the 2-day suspension to Crandall. These records show that other employees were treated the same as Crandall for similar infractions that were committed both before and after May 25 (R. Exhs. 3–6). While the General Counsel introduced an exhibit to show that an employee was given a verbal warn- ing for a similar infraction, I am not convinced that the infrac- tion was analogous to leaving work without permission. In this regard, the employee in question was disciplined for extending past one of his 15-minute break periods provided during the workday (GC Exh. 5). In my opinion, extending beyond an allotted work break is different than leaving work altogether without permission. Additionally, extending beyond an allotted work break is not one of the infractions listed in the work rules, that is cause for termination (R. Exh. 2). Based on the foregoing, I find that the Respondent would have suspended Crandall even in the absence of his union ac- tivities, and recommend that paragraph 10 of the complaint and union objection 2 be dismissed. III. THE UNION OBJECTIONS The objections not previously discussed above involve threatening employees with loss of their earned vacations and GOLUB CORP. 523 not receiving wage increases if the Union prevailed in the elec- tion.7 Chris Rosenthal testified that the Respondent held three separate meetings that encompassed all grocery warehouse employees at the Rotterdam facility wherein the pros and cons of the Union were discussed. The first set of meetings took place on June 6 and 7, the second meetings took place on June 13 and 14, and the last meetings took place on June 19 and 20. The meetings took place in the main auditorium for approxi- mately 1 hour in duration. Rosenthal estimated that in addition to himself, approximately 80–100 employees attended the meeting held on June 13. Warehouse Director Tom Bird and Human Resource Director Wesley Holloway attended the June 13 meeting and Holloway was the principal spokesperson. During the course of the meeting employee Terry Lawson, who was eligible to receive a 5th week of vacation in July 2000, asked whether he would be receiving this benefit. Holloway said, “that everything would be ‘frozen’ if the Union was voted in until after a contract is negotiated and wages could go up and down based on the negotiation process.” Rosenthal also testi- fied that in response to a question from a part-time employee who was scheduled to get a 6-month wage increase, Holloway said that everything would be frozen if the Union won the elec- tion. Employee Stephen Robichaud testified similarly to Rosenthal and added that Holloway also stated that no wage increases would be given until after negotiations were com- pleted between Golub and the Union. After concluding the second meeting on June 13, Respon- dent’s supervisors including Bird and Holloway convened to review the content of the meeting. All of the supervisors were concerned that the employees might have been confused and misunderstood the term “frozen.” Respondent sought legal counsel and was advised to hold a second set of meetings with those employees that attended the June 13 meeting and clarify what was meant by the term “frozen.” For that purpose, on June 14, approximately 60–65 of the grocery warehouse em- ployees assembled adjacent to the supervisor’s office. Those employees were informed by Bird, that current wages and vaca- tions would be maintained if the Union prevailed in the election on June 22. Bird apologized for any confusion over the use of the word “frozen” mentioned at the previous day meeting. In addition to meeting with the grocery warehouse employees, Bird met individually on and after June 14 with the 18–20 em- ployees in the perishable group that had also attended the June 13 all-employee meeting. As he did with the grocery employ- ees, Bird apprised these employees that current wages and va- cations would be maintained if the Union prevailed in the elec- tion on June 22, and apologized for the confusion over the use of the word “frozen.” Based on the foregoing, and particularly noting that group and individual meetings were immediately held with the major- ity of the employees that attended the June 13 meeting, I con- clude that the explanation and apology to employees regarding the use of the word “frozen” was sufficiently unambiguous to clarify the matter. While I agree that Holloway’s initial state- ment to the assembled employees on June 13 constituted objec- 7 These objections are listed as objections 3 and 4. tionable conduct, the meeting held on June 14 and the subse- quent individual discussions with the perishable employees repudiates whatever violation might have occurred. I note that when the June 14 meeting was held with the approximately 60- 65 grocery warehouse employees followed closely by individ- ual meetings with the perishable employees, that over a week remained until the election on June 22. Under these circum- stances, I am of the opinion that enough time remained for all impacted employees to understand that wages and benefits would not be “frozen” if the Union prevailed in the election. Thus, such conduct acted to restore the laboratory conditions for a fair election. See Agri-International Inc., 271 NLRB 925, 926–927 (1984). Therefore, I conclude that Objections 3 and 4 should be dis- missed. See Gaines Electric Co., 309 NLRB 1077, 1081 (1992). When an employer violates Section 8(a)(1) of the Act during an election campaign, the usual remedy is to order a second election because such prohibited conduct interferes with the “laboratory conditions” of the first election. See Dal-Tex Opti- cal Co., 137 NLRB 1782 (1962). In resolving the question of whether certain employer misconduct is de minimis with re- spect to affecting the results of an election, the Board takes into consideration the number of violations, their severity, the extent of dissemination, the size of the unit, and other relevant factors. See, e.g., Super Thrift Markets, 233 NLRB 409 (1977). Here, the conduct complained of in paragraph 6(c) of the complaint and the unnumbered “catchall” objection was isolated and di- rected toward a single employee in a unit of approximately 590 employees who were employed at four different warehouse locations. Likewise, the conduct took place at the end of an extensive preelection campaign that was devoid of any other objectionable conduct. The record shows that no other em- ployee eligible to vote in the election was present during Bee- ble’s remarks to Crandall, nor is there evidence that the remarks were overheard or disseminated to any of the employees at the Respondent’s facilities. Moreover, I note that even on June 2, the date of the violative remarks, the Respondent did not pre- vent the Union from freely engaging in solicitation of employ- ees when they entered and left the premises. It is further noted that both before and after June 2, there is no evidence to estab- lish that the Respondent interfered in any manner with the right of the Union to engage in solicitation or distribution of litera- ture to employees. In these circumstances, I find that the threats to Crandall, while an unfair labor practice and objectionable conduct, are de minimis and therefore do not justify invalidating the results of the election. Caron International, 246 NLRB 1120 (1979). Indeed, the election results show that a substantial majority of the valid ballots were not cast for United Food and Commercial Workers, District Union Local One, AFL–CIO–CLC. 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. The Union is a labor organization within the meaning of Section 2(5) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 524 3. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by enforcing a rule pro- hibiting employees from engaging in lawful union solicitation. 4. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(1) of the Act by interrogat- ing an employee about his union activities or within the mean- ing of Section 8(a)(1) and (3) of the Act by suspending the employment of Arthur Crandall. 5. The unfair labor practice described above affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended8 ORDER The Respondent, Golub Corporation, Schenectady, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Enforcing by threats of discipline a rule prohibiting em- ployees from engaging in lawful union solicitations on its premises. 8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. (b) In any like or related manner interfering with, restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days after service by the Region, post at its fa- cility in Schenectady, New York, copies of the attached notice marked “Appendix.”9 Copies of the notice, on forms provided by the Regional Director for Region 3 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respondent at any time since June 2, 2000. (b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found. 9 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”