Roskin Brothers, Inc.

ROSKIN'BROS Roskin Brothers, Inc. and United Food and Com- mercial Workers Union, Local 464A, AFL- CIO. Cases 2-CA-17576 and 2-CA-17638 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 14 June 1982 Administrative Law Judge El- eanor MacDonald issued the attached decision. The Respondent filed exceptions, a supporting brief, and a motion to reopen the record,' and the General Counsel opposed the motion and filed a brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions only to the extent consistent with this Decision and Order. We agree with the judge, for the reasons stated in her decision, that the Respondent violated Sec- tion 8(a)(1) when the Respondent's agent Ed Davis told employees "you'll never have a union in here" and "we know what's going on and we're going to fix that." We also agree with the judge that the Re- spondent violated Section 8(a)(3) and (1) by laying off eight warehouse employees soon after they began organizing. Contrary to the judge, though, we find that the Respondent's economic justifica- tion for the layoffs was not pretextual. However, the Respondent violated Section 8(a)(3) and (1) in its selection of the employees who were to be laid off. Finally, we disagree with the judge's finding that a bargaining order is appropriate here. 1. The facts, explained more fully in the judge's decision, are summarized below. The Respondent is a wholesale distributor of sporting goods. It oper- ates a warehouse and office facility in Middletown, New York. The Company acquired a Converse sneaker distributorship in September 1979. The general manager of the Company's Middletown warehouse, Martin Moskowitz, testified that in late ' The Respondent has filed a motion to reopen the record because it wishes to introduce testimony on the meaning of a certain part of its fi- nancial statement and on its posthearing economic difficulties It argues that this evidence adds support to its defense that it laid off eight employ- ees because of its economic problems, not because of their union activity The proffered evidence concerning the financial statement is neither newly discovered nor was it unavailable at the hearing We therefore deny this part of the Respondent's motion Heat Research Corps, 243 NLRB 206 fn 1 (1979), Board's Rules and Regulations, Sec 10248(d)(1) As for the evidence of posthearing financial difficulties, we agree with the General Counsel that such evidence is not relevant to a determination of the Respondent's motivation at the time of the layoffs We therefore deny this portion of the Respondent's request as well 2 In her decision, the judge made two inadvertent errors in sec II,A, par 5 of the decision, "$10,000" should be "$40,000", and in sec II,c, par 36, "Hujus" should be "Davis " 413 1979 or early 1980 he informed the staff that more personnel would be needed to handle the new, ad- ditional product line of Converse sneakers. The warehouse staff was increased from 13 to 20. The office staff and outside salespersons were also in- creased. Moskowitz testified the Converse order placed by the Company in January 1980 was incorrectly formulated and in the summer of 1980 he became aware that the Company was losing money because the overhead increased at a greater rate than gross profits. Moskowitz also testified that by mid-1980 the Company was losing money due to its debt structure and inventory structure. He said the Company was unable to borrow any more money and was unable to pay its bills. Moskowitz testified that he was concerned the Company would not have the money to pay for the Converse line and at the end of the year the corporation's certified statement would not show a profit. He testified that the Company had only one banking source and the Company sought to show a profit so the bank would not call in the Company's receivables precipitating a bankruptcy action. Moskowitz further testified the principals of the Company pressured him to make cuts. Moskowitz decided to cut the warehouse staff, and in Septem- ber he told Warehouse Manager Wayne Coons he had to cut 10 employees.3 About the same time, in late September 1980, the warehouse employees began organizing. By 1 October 1980 11 of the 20 (18 full-time and 2 part-time) warehouse employees had signed union authorization cards. At a meeting on 2 October 1980 Moskowitz and Coons met to discuss which employees would be laid off. Coons told Moskowitz at this meeting there was some kind of union activity going on. Moskowitz deter- mined, however, the union organizing could not delay the layoffs, which had to be made because the Company was facing financial difficulties. Moskowitz decided that nine employees should be laid off.4 On 3 October 1980 the eight employees who were all union card signers were laid off. On 24 December 1980 the Union requested that the Respondent recognize it as the exclusive bargaining representative for the warehouse employees. The Respondent rejected this request. 3 Moskowitz testified he decided to cut the warehouse staff because (1) the Company had adopted an efficient system of picking Converse orders quickly, (2) the least productive quarter of the year was approaching, and (3) the newly acquired Braintree operation had picked up a lot of the business that was previously done in the northern tier of the territory lessening the amount of work for the Middletown facility 4 Moskowitz testified that he initially wanted to lay off 10 employees However, I of the 10 was a retarded employee to whom he had always given special consideration and whom he decided not to lay off Another of the 10 gave her notice the day the layoffs were executed Therefore, it was not necessary to lay her off 274 NLRB No. 53 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The judge found that the Respondent's asserted justification of its worsening economic situation was a pretext for the layoffs. We disagree with the judge and hold that the Respondent made the lay- offs because of its financial difficulties. Moskowitz testified the Company overstocked its new line of Converse equipment in January 1980 and in June 1980 the Company was losing money because the overhead had increased at a greater rate than gross profits. Moskowitz further stated the Company could not borrow any more money and that he was being pressured by the principals to make cuts. Moskowitz was concerned that the Company would not have the money to pay for the Converse line. He also was concerned that at the end of the year the Company would not show a profit and the Company would be forced into bankruptcy. Moskowitz decided to cut in half the size of the warehouse staff which was effectuated in October 1980. Other cuts were made including the principals of the Company surrendering their salaries for the remainder of 1980 resulting in a savings of $40,000. Near the end of 1980 and into 1981 Moskowitz cut the field sales staff from 21 to 14. A position in the office was eliminated, and an inside salesman was transferred to a warehouse po- sition. The inside sales force was seven at the time of the layoffs and was reduced to four. The finan- cial statement introduced into evidence shows that the Respondent in 1979 had gross sales of $9,792,751 and showed a net profit of $168,460. In 1980 the Respondent had gross sales of $15,164,822 and, with the above-mentioned cuts in staffing, showed a net profit of $19,114. We therefore find that the Respondent was justified under these cir- cumstances in effectuating a layoff of its warehouse staff and that such action was not a pretext to mask an unfair labor practice. We agree with the judge that the Respondent's selection of the employees for the layoff violated Section 8(a)(3) and (1) of the Act. The testimony of Warehouse Manager Coons shows on 2 October 1980, when he met with Moskowitz, Coons told Moskowitz there were rumors about a union. Coons testified Moskowitz "might have" asked him who was involved in the Union at that meeting, and Coons mentioned several names. The next day eight employees-all union card signers-were laid off. The two least senior warehouse employees, Santos Rivera and Robert Cutler, were not laid off. The judge found at the hearing that Coons' testi- mony about why certain employees were selected for layoff was vague and tentative. We agree with the judge that Coons did not give specific reasons for selecting certain employees and rejecting others in the layoff. In addition, the results of the efficien- cy rating survey of the various warehouse employ- ees conducted by Coons shortly before the layoffs was not introduced to show how it entered into Coons' decision of which employees were to be laid off. 2. The judge found that since 11 authorization cards were signed by warehouse employees out of a unit of 20, the Union was designated as represent- ative of a majority of employees in an appropriate unit. She further held in this case where the Re- spondent laid off 8 out of 11 union card signers and where the Respondent's agent Davis gave the em- ployees the impression their activities were under surveillance and they would be retaliated against, a bargaining order is necessary. We disagree with the judge that the record sup- ports the issuance of a remedial bargaining order predicated on majority status in an appropriate unit. We find that a unit of employees limited to the warehouse employees alone is inappropriate in this case under A. Harris & Co., 116 NLRB 1628 (1956), and Sears, Roebuck & Co., 117 NLRB 133 (1957). Furthermore, the inclusion of other employ- ees of the Respondent in the unit with the ware- house employees would negate the numerical possi- bility of the Union's majority status.5 In A. Harris, the Board formulated the conditions under which it would find appropriate a separate warehouse unit. The conditions are: (1) the ware- house employees were under supervision separate from the other employees; (2) they perform sub- stantially all of their work tasks in buildings geo- graphically separated from those in which the bulk of the remaining employees of the employer work; and (3) the warehouse employees' duties were not substantially integrated with other employees.6 In Sears, Roebuck, the Board held that only where all three of these conditions are met is a separate unit of warehouse employees appropriate.' Applying these principles to this case, we find that the condition of geographic separateness has not been met. The Middletown facility involved here is a single one-story building. The office area in the front is partitioned off from the warehouse. Nonetheless, all employees enter the premises daily through the only entrance, in the front, pass through the office, and punch the one timeclock in the facility. There are common restrooms for all employees, and the kitchen and the lounge in the hallway between the warehouse and office areas 5 Since we have held in Gourmet Foods, 270 NLRB 578 (1984) (Member Dennis concurring), that nonmajonty bargaining orders are not within our remedial discretion, a bargaining order would not issue in this case A Harms, supra at 1632 Sears, Roebuck, supra at 134 ROSKIN BROS are shared by all employees. The record indicates all categories of employees-warehouse, sales, and office-have occasion to be in all areas performing their jobs. For example, the three purchasing agents spend at least 20 percent of their time in the warehouse taking inventory of their product line; the one checker in the office makes considerable trips to the warehouse; the two credit control clerks have contact with warehouse employees to stop an order because of adverse credit informa- tion; and the two accounts payable clerks go to the warehouse to check with receivers to get informa- tion about lost or damaged goods claims or regu- larly to speak to a receiving employee to check on receiving information. The two merchandise credit return clerks, who work in office area, interact constantly with the UPS/return goods clerk, who works in the warehouse; and the order control and merchandise tracing clerk walks into the ware- house to deliver orders on an average of 15 times daily. The warehouse employees' duties also are sub- stantially integrated with the other employees. In our view, the record shows a highly integrated op- eration with a substantial degree of interaction among the various classifications of employees where the emphasis seems to be on completing the task at hand rather than on the particular classifica- tion of employee involved. See Gustave Fischer, Inc., 256 NLRB 1069, 1072 (1981). For example, the outflow process demonstrates the integration of the warehouse employees with the front office em- ployees. The outflow process or the removal of merchandise from the warehouse is triggered by the inside sales employees who take orders. After certain entries have been made on the sales order by the inside sales employees and the credit control clerks, the order control and merchandise tracing clerk in non-Converse orders or the checker on Converse orders takes the sales order to the ship- ping clerk in the warehouse where a bill of lading is prepared. The pickers fill the order, the checker examines the order, and the packers return the shipment with the sales order to the shipping clerk. The pickers, checker, and packers each make en- tries on the sale order form. The shipping clerk matches the sales order with the bill of lading and delivers them to the accounts payable clerk in the office and a copy to the order entry clerks, who prepare a computer invoice. The checker in the office checks the order form against the invoice, and the outflow process is completed. While the outflow process indicates interchange between the office and warehouse personnel, there are additional factors which show a unit of only warehouse employees is inappropriate. The Re- 415 spondent's method of operation promotes inter- changeability and contact among its employees. The Respondent's warehouse manager Coons testi- fied that inside sales employees regularly come out to the warehouse to pick and pack on their own. Employees from both the office and warehouse areas combine to participate in the annual invento- ry at the end of the year in the warehouse. The order entry clerks are assigned to the warehouse to do picking and packing when a computer is down. In addition, in terms of the community of interest among the Respondent's employees, we have taken into account that all employees share common fringe benefits and are subject to common work rules and hiring and discharge policies. Based on a consideration of all the evidence, we find a separate warehouse unit here does not meet at least two of the A. Harris standards." We do not, however, find it necessary to determine which unit or units would be appropriate. The General Coun- sel has failed to demonstrate a unit of only ware- house employees is appropriate so a bargaining order requiring the Respondent to bargain in that unit is improper. Accordingly, we will modify the recommended Order9 and substitute a new notice. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Roskin Brothers, Inc., Middletown, New York, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order as modified. 1. Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs. "(b) Expunge from its files any reference to the discharges of Sanford Fish, Ronald Terwilliger, Robert Nola, Stephen Jones, Andrew Freudenberg, Katherine Dunning, Robin Hasbrouck, and Harold Titman, and notify them in writing that this has been done and that evidence of these unlawful ac- tions will not be used as a basis for any further action against them." 2. Delete relettered paragraph 2(d) and reletter the following paragraphs. 8 In agreeing with this result , Member Hunter puts no reliance on the citation to Gustave Fischer, supra, to the extent it indicates an employer must have a "highly integrated" operation to defeat a separate warehouse unit request Member Hunter adheres to the A Harris criteria set out ear- lier in this decision in this regard 9 We will also modify the Order because the judge did not require the Respondent to expunge from its records any reference to the discharges of Sanford Fish, Ronald Terwilliger, Robert Nola, Stephen Jones, Andrew Freudenberg, Katherine Dunning, Robin Hasbrouck, and Harold Titman We shall modify her recommended Order and the attached notice to include a direction that any such reference be eliminated Ster- hng Sugars, 261 NLRB 472 (1982) 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Substitute the attached notice for that of the DECISION administrative law judge. 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 ordered 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 representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT create the impression of surveil- lance of our employees ' union activities. WE WILL NOT threaten our employees with re- taliation for their union activities. WE WILL NOT lay off or discharge our employ- ees for joining a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Sanford Fish , Ronald Terwil- liger, Robert Nola, Stephen Jones, Andrew Freu- denberg, Katherine Dunning, Robin Hasbrouck, and Harold Titman immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed and WE WILL make them whole for any loss of earnings, plus in- terest. WE WILL expunge from our files any reference to the discharges of Sanford Fish , Ronald Terwil- liger, Robert Nola, Stephen Jones, Andrew Freu- denberg, Katherine Dunning, Robin Hasbrouck, and Harold Titman , and notify them in writing that his has been done , and that evidence of these un- lawful actions will not be used as basis for future action against them. STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge This case was tried in New York , New York, on July 27 through 30, 1981 . The complaint was issued on Decem- ber 31 , 1980, alleging that Respondent violated Section 8(a)(1), (3), and (5) of the Act by creating the impression of surveillance of its employees' union activities , threat- ening its employees with reprisals for union activity, laying off its employees due to their union activity, and refusing to recognize or bargain with the Union for a unit of warehouse employees. At the trial, the General Counsel amended the complaint to allege that Respond- ent violated Section 8(a)(1) of the Act by directing an employee to give false testimony to the Board and fur- ther violated Section 8(a)(1) by encouraging an employee not to honor a Board subpoena Respondent filed an answer denying the material allegations of the complaint. On the entire record, including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation, operates a warehouse in Middletown, New York, where it is en- gaged in the wholesale distribution of sporting goods Annually, Respondent sells and ships from its warehouse goods and materials valued in excess of $50,000 directly to firms located outside the State of New York. Re- spondent admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that United Food and Com- mercial Workers Union, Local 464A , AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A The Alleged 8(a)(3) Violations Sometime toward the end of September 1980, ware- house employees Sanford Fish , Ronald Terwilliger, and Robert Nola began organizing their fellow warehouse employees on behalf of the Union . Eleven of the 20 warehouse employees signed cards for the Union. i The cards were dated September 30 and October 1, 1980 On October 3 , 1980, 8 of these 11 employees were laid off. Respondent contends the layoffs were due to business necessity 1. Testimony of Moskowitz Martin Moskowitz, manager of the Company's Middle- town warehouse, testified that he made the decision to effectuate the October 3 layoffs.2 ROSKIN BROTHERS, INC. i There is a dispute as to the supervisory status of one warehouse em- ployee named Ed Davis 2 Moskowitz is a vice president of Roskin and is the controller and chief financial officer of the Company ROSKIN BROS. Moskowitz testified that the Company acquired the Converse sneaker distributorship in September 1979, having never handled a comparable product in the past The initial plan had been that Roskin Brothers would sell $5 million worth of sneakers during the first year of the distributorhhip . The first shipment of sneakers from Con- verse was received in October 1979; in that month the Company sold $ 10,000 worth of sneakers Gradually, the business picked up. In December 1979, the Company took over a warehouse in Braintree, Massachusetts, from a fishing tackle distributor , intending to acquire some of the distributor's business as well as to utilize the ware- house for storage and shipping of the Converse sneakers. However, the Company was not able to begin shipping and billing out of Braintree until April 1980. As a result, all the business was handled out of the Middletown facil- ity until April 1980 In late 1979 or early 1980, Moskowitz decided to build up the staff to handle increased volume due to the addi- tion of the Converse line.3 Before this buildup , the ware- house staff numbered 13, and by the time of the layoffs it had risen to 20. The sales and office staff were also in- creased . Moskowitz stated that he had overstaffed the Company in order to ensure that it gave fast service so that it could compete successfully with the service pro- vided by Converse to its direct customers. According to Moskowitz , the Converse order placed by the Company in January 1980 had been incorrectly formulated, and the Company was overstocked . In June 1980, Moskowitz became aware that the Company was losing money because the overhead had increased at a greater rate than gross profits . He considered cutting the operating staff but did not do so because the back-to- school sneaker season was yet to come in August and September, the Company had not had experience selling the Converse line for this season , and Moskowitz did not know how many people he would need . Moskowitz testi- fied that by mid - 1980 the Company was losing money due to its debt structure and inventory structure: "We were at the top of our bank line and had no ability to borrow any more money . . . . We weren't paying the bills on time." Moskowitz was pressured by the princi- pals of the Company to make cuts . He testified that the Company did not have the money to pay for the Con- verse line and that by "mid -year it was getting to be an untenable position " Moskowitz was concerned that at the end of the year the corporation 's certified statement would not show a profit. His concern stemmed from the fact that: Our banking source is one source . We borrow only from one bank And any . . . jeopardy to that rela- tionship would be critical to us . . . the bank has security on the receivables . . . Any move by a bank to call in those receivables would precipitate a bankruptcy action on our part . We were trying to avoid that at all costs. And to avoid that that meant showing a profit 3 Moskowitz testified that the Company 's volume in 1979 was $9 7 mil- lion and it increased by 65 percent to $15 2 million in 1980 The actual Converse billing in 1980 was $4 25 million 417 Due to the unfavorable financial picture, the principals of the Company gave up their salaries for the remainder of 1980 for a saving of $10,000, and pressure was put on Moskowitz to reduce other costs 4 As a result, Moskowitz decided to cut the payroll . He determined to trim the staff of the warehouse because the Converse orders were being picked more rapidly than had been ex- pected , the Braintree warehouse was doing a lot of Con- verse shipping, and the fourth quarter is usually the slowest time at the warehouse. Moskowitz decided on a 50-percent cut of the ware- house staff; in September, he communicated this figure to Warehouse Manager Wayne Coons, who thought it was too large. There were a series of discussions between Coons and Moskowitz concerning the size of the cut Fi- nally, on Friday , September 26, 1980, Moskowitz told Coons that the two of them would meet on Thursday, October 2, in order to decide on the layoffs, and Moskowitz asked that Coons have a list of employees to be laid off ready on that day.5 On October 2, Moskowitz examined the list of 10 employees that Coons had pre- pared, and he struck from it the name of Donald Snow, a retarded person.6 Moskowitz told his bookkeeper to prepare 9 final checks As it happened , Susan Tyrell, one of the nine slated to be laid off, gave notice that she was leaving to take another job.7 Moskowitz testified that when he met with Coons on October 2 the latter informed him that "there was some kind of union activity going on" and that he had learned of it from Lester Hujus and Ed Davis , two warehouse employees. Moskowitz was surprised because he consid- ered himself a "fair employer ," but he nevertheless deter- mined that this development could not affect the layoffs. Toward the end of 1980 and continuing into 1981, Moskowitz cut the field sales staff from 21 to 14 Fur- ther, an office position was eliminated and an inside sales employee was moved into the warehouse . According to Moskowitz, the busiest times in the warehouse are Feb- ruary and March for fishing tackle and August and Sep- tember for hunting and sneakers. In consequence, the Company recalled two employees in January and Febru- ary The warehouse staff had been stabilized at 12 by the time of the trial. Moskowitz testified that the week after the layoffs the warehouse staff worked 300 fewer hours, including over- time, than had been worked the prior week. Overtime is paid at time and a half The records shows that warehouse employees worked the following hours in the latter part of 1980: 4 In 1979, the Company showed a profit of $168 ,000 and in 1980 the profit was $19,000 8 Moskowitz was going on a trip and would return on October 2 6 Moskowitz explained that he decided to retain Donald Snow and then "live with " only nine layoffs because he believed that Coons could not function if any other warehouse employees , besides Snow, were laid off Notice of the layoffs was not given until the last moment to avoid disruptions and thefts, according to Moskowitz 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Week Regular Overtime Aug. 29 623-1/2 6-1/2 Sep. 6 745-1/2 25-1/ Sep. 13 745-1/2 20-1/2 Sep. 20 790-3/4 35-1/2 Sep 26 740 55 Oct 3 616-3/4 62-3/4 Oct 10 410-3/4 79-3/4 Oct 17 403 61-1/4 Oct. 24 408 75-1/2 Oct. 31 418 98-3/4 Nov. 7 428-3/4 56 Nov. 14 408 49-3/4 Nov. 21 414 47-1/4 list of employees and told Moskowitz that there were rumors about a union . Moskowitz said, "We can't worry about that at this time We have to cut back." Coons stated that Moskowitz "might have asked me who I thought might have been into it." Coons mentioned to him that Fish and Terwilliger would be involved because they had union contacts, and that their friend Robert Nola might be with them as well as Andy Freudenberg. During this meeting, nine people were selected for layoff on the basis of the performance evaluations." One of these, Susan Tyrell, gave notice that day. On cross-exam- ination, Coons testified that he had wanted to layoff 5 employees-he could not recall which ones-but Moskowitz insisted on 10 employees being let go. One of the employees on Coons' list, Donald Snow, was re- tained at Moskowitz' insistence The parties stipulated that the two least senior ware- house employees were Santos Rivera and Robert Cutler. On September 16, 1980, Coons had hired Cutler, an old and close personal friend, because the latter had just been separated from his wife and needed a job. Coons knew a cutback was impending but he thought Cutler would be a better worker than some of the current em- ployees. Coons testified, "I went against Marty to hire him. I didn't let Marty know I hired him at all."9 Coons acknowledged that Moskowitz would have been aware of Cutler's hiring when he signed his paycheck; howev- er, they did not discuss the matter. Moskowitz was also aware that the warehouse staff was increasing continu- ously up to the time they began discussing layoffs, ac- cording to Coons. Coons testified that, in deciding which employees to lay off, he had considered length of experience in the warehouse as a "general factor." However, he conceded that some long service employees had been laid off while other employees who had been hired a few weeks before were retained. Coons said that certain of the laid-off em- ployees were bad employees or borderline, and that among these were Ron Terwilliger, Stephen Jones, San- ford Fish, Robert Nola, Katherine Dunning, Andrew Freudenberg, Robin Hasbrouck, and Harold Titman. He had warned Terwilliger and Jones about absenteeism before their layoff and he had cautioned Freudenberg about making mistakes. Coons stated that Titman had worked as a part-timer while he was a student and had only recently become a full-time employee. This does not reflect warehouse work performed by office employees, nor was there any evidence to show whether the Braintree operation picked up work normal- ly allocated to Middletown. 2 Testimony of Coons Wayne Coons, the warehouse manager of Respondent, testified that the Company began shipping Converse products in May 1980 There had been a gradual buildup of employees to handle the Converse line as he and Moskowitz had not known how many new employees it would require. By early or mid-September, Coons testi- fied, Moskowitz believed the warehouse was overstaffed and he directed Coons to cut back. However, the two men could not agree on the size of the layoff; Moskowitz wanted 10 employees to be laid off and Coons thought 5 was a reasonable number. As a result of their conversa- tions, Coons made up evaluation forms for the employees so that he could determine what workload each was han- dling and which employees were expendable. The forms were completed by the shipping clerk. Finally, Moskowitz, who was about to be away for 3 or 4 days, told Coons that they would make a decision on layoffs when he returned to the warehouse and that the layoffs would occur on that Friday, October 3, 1980. Coons tes- tified that by October 3 business was slowing down after the hunting and sneaker season . Coons later described this period as follows: "[ilt wasn't really busy but we weren't slow either, it was enough work." Coons testified that when he spoke to Moskowitz about the coming layoffs in the last week of September he was unaware of any union activity among the em- ployees, and that he first heard of it on the Wednesday before the layoffs. On that day, October 1, 1980, Lester Hujus and Ed Davis told him that some employees were signing cards for the Union. They did not give him any names, and Coons just "walked away." On cross-exami- nation, Coons stated that he talked to Davis and Rose- mary Palazzo, a warehouse employee, about union activ- ity the next day. Palazzo told Coons she wanted nothing to do with the Union. Coons asked Davis who was en- gaging in union activity and Davis "probably" gave Coons a few names, but Coons could not recall who was named. When Moskowitz returned from his trip and wanted to know whom Coons wanted laid off, Coons gave him a 3. Testimony of Robert and Thomas Nola Robert Nola testified that he is the son of Thomas Nola, the credit manager of Respondent and the person 8 These included Sanford Fish Katherine Dunning Ronald Terwilliger Robin Hasbrouck Robert Nola Harold Titman Stephen Jones Susan Tyrell Andrew Freudenberg Of these, all but Tyrell had signed cards for the Union. Three other employees had signed cards for the Union but were not laid off These were Santos Rivera, Robert Crawford, and Joan Smith Moskowitz did not testify about the hiring of Cutler. ROSKIN BROS 419 responsible for making all credit decisions at the Compa- ny. Robert Nola was given a warehouse job at the Com- pany in October 1979 at his father's request, and he worked at the Company until the layoff of October 3, 1980.10 The night before the layoffs, Nola spoke to his father at home. The elder Nola asked his son if he was in- volved with the Union. Robert Nola did not answer, and his father asked , "How long has this been going on?" Again, the son did not answer . At that point, Thomas Nola said that something was going on in the shop but that he did not know exactly what it was . He also asked his son how many people were involved and gave his opinion that people in the warehouse had told Moskowitz about the Union . Then he said , "Whatever happens, if anything , take it like a man." The next day, Thomas Nola invited his son to lunch , a very rare occur- rence. At lunch he told his son that he was laid off and not to return to work . When Robert Nola asked the reason, his father said the Company claimed a slowdown but he believed that was not the reason because the Company had never used a layoff before, and business was not slow in the fall due to the hunting season. Thomas Nola told his son not to return to work because if he told his coworkers about the layoffs his father's job would be jeopardized . During this lunch conversation, the elder Nola did not mention the Union. Thomas Nola testified that he has been employed at Roskin Brothers for 14 years. On Thursday , October 2, Moskowitz came into his office and told him that "condi- tions are not too good" because business was down in the fall, and that there was going to be a layoff. Nola asked if his son was involved, and Moskowitz said he did not know but that he would find out. Later, Moskowitz returned and told Nola his son was involved in the layoff. Nola then told Moskowitz that he had "overheard a conversation in the office about the fact that the Union was forming." Moskowitz said he was aware of it. Nola then observed that it was not good to have a layoff at that time because of the Union , and Moskowitz respond- ed, "[W]e have to do this because this has been planned for quite a period of time." Later that evening , Nola saw his son who was then living at home . Because, as Nola testified,"I knew there was problems with the Union . . . I asked him if he was involving himself with the Union " However, Robert Nola did not answer his father and the conversation ended Thomas Nola did not tell his son that he would be laid off. On the morning of October 3, Thomas Nola again spoke to Moskowitz and asked if he could cushion the blow for his son by taking him out to lunch and telling him about the layoff. Moskowitz agreed but with the condition that Robert Nola not return to the warehouse and tell the other employees of the impending layoffs Thomas Nola took his son to lunch and informed him of the layoffs. Robert Nola in- sisted that it was due to union activities ; he wanted to return to the warehouse "to be part of the group," and his father dissuaded him with difficulty. 10 About October 1, Nola was approached by Ronald Terwilliger and asked to sign a card for the Union He did so On cross-examination, Thomas Nola stated that Moskowitz ascribed the need for layoffs to a change in "business format" and a slow time in shipping Nola did not ask that his son 's job be spared because he had never wanted his son to work in the same establishment that employed him. He testified that he took his son out to lunch "to ease his burden." "I didn't want him to be in the group . . . It was my opinion that there was a prob- lem with the Union and he was involved . . . I felt that there would be some physical problem ." Thomas Nola did not tell Moskowitz that he thought his son was in- volved with the Union. The testimony of Robert and Thomas Nola is entirely consistent concerning their conversation on the night before the October 3 layoffs . Both men testified that the elder questioned the younger concerning union activities at the plant. Further, their testimony about the luncheon conversation on the day of the layoffs is also quite con- sistent. Both testified that the father took his son to lunch to tell him of the layoffs and to keep him from re- turning to work in the afternoon . The only discrepancy in their testimony is that Robert Nola testified that his father stated that a business slowdown could not be the real reason for the layoff, while Thomas Nola testified that his son kept insisting that the layoff was due to the Union. But Thomas Nola did not deny that he told his son there was not a slow down in business and that the layoffs must be due to something else, and he did ac- knowledge that he thought there was a "problem" with the Union and that his son was involved In view of the fact that Thomas Nola did not deny his son 's version of the events and that the testimony of both men is not in- consistent, I shall credit Robert Nola's recital of the facts. Thus, I find that Thomas Nola stated that there was "something going on" in the shop , that he ques- tioned his son about the Union , and that he stated his belief that Moskowitz' asserted reasons for the layoff were pretextual. 4. Discussion The General Counsel has shown not only that those employees who spearheaded the organizing activity, but in fact 8 of the 11 employees who signed cards for the Union, were laid off within days of the onset of organiz- ing activity The Company has never had a prior layoff even approaching this magnitude . The testimony of Coons shows that at the meeting at which he and Moskowitz decided which employees to lay off Moskowitz asked Coons who in Coons' opinion was in- volved in union activity . Coons testified that he men- tioned Sanford Fish and Ron Terwilliger because they both have outside contact with unions and Robert Nola because he was their friend . Coons also "thought" that "maybe Andy Freudenberg" was involved in organizing. Coons was then asked who "at that period in time" was not likely to have been involved with the Union, and he named Don Snow and certain other employees who were not laid off. The General Counsel has therefore shown that Coons knew about the union activity when he selected employ- ees for layoff and that those employees whose union ac- 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tivity Coons was reasonably sure of were all laid off. In addition , the General Counsel has shown that Moskowitz was aware of the union activity when he and Coons dis- cussed the layoffs and that he was told who was most likely responsible for the organizing activity I find that Respondent 's asserted justifications for the layoffs are implausible and unconvincing and that they are pretextual . 11 Respondent has not shown that the em- ployees would have been laid off even had they not en- gaged in union activity . When Coons testified about his reasons for selecting certain employees for layoff, his manner was vague and tentative. He did not give specific reasons for selecting certain employees and rejecting others. He testified that three of the employees he laid off had been warned for absenteeism or for not doing their work, but the other employees he selected for layoff were apparently not so warned . Coons had con- ducted an efficiency rating survey of warehouse employ- ees sometime shortly before the layoffs , however, even though he and Moskowitz knew that it was inopportune to lay off employees dust as they began organizing, nei- ther one of them saved the results of the survey to show their good faith in selecting employees for layoff. Nor did Coons or Moskowitz offer any detailed testimony about the results of the survey to show that it had been relied on in choosing which employees to lay off. Further, the two least senior employees were not laid off. Coons stated that Cutler was a good friend of his and a good worker, but did not give any reason for re- taining Rivera, whom he did not suspect of union activi- ty, other than that Rivera had previously worked part time for the Company. Cutler's hiring, less than 1 month before the layoffs and during a period when Moskowitz was assertedly pressuring Coons for a list of 10 employ- ees to be laid off, raises further questions . If Cutler was hired because he was a good worker, why was not a poor worker discharged to make way for him? Coons' explanation that he hired Cutler without Moskowitz' knowledge is not credible, Moskowitz personally signs the weekly paychecks for all employees . Moreover, Moskowitz impressed me as a manager who is intimately familiar with all the details of his firm's operation and as a strong `person whom no supervisor would dare try to deceive I am convinced that Cutler was hired because, contrary to the testimony of Respondent's witnesses, Coons had not yet been told there was to be a layoff and Moskowitz was not unwilling to add another employee to the payroll . It is significant that Moskowitz offered no explanation for Cutler's hiring. Moreover, despite Moskowitz' assertions that the Company was in financial difficulties, the financial state- ments introduced by the General Counsel show only that Roskin Brothers had incurred heavy costs due to the ac- quisition of the Braintree facility and the Converse line of athletic shoes Moskowitz' own testimony establishes that the Braintree facility eventually began to justify its cost by taking over the shipping for the Company's Boston market and that the sales of Converse items also began to pick up after a slow start . In his testimony, Moskowitz repeatedly emphasized that his decision to make a large and immediate cutback in the warehouse staff was due to the fact that the Company could not borrow any more money from its lenders and that he wished to show a profit at the end of the year . The first statement is contradicted by the financial report which shows that the Company had "an unused line of credit with a financial institution amounting to $191,387 on De- cember 31 , 1980." Moskowitz' reason for wanting to show a profit was that this could prevent the lending in- stitution from throwing the Company into bankruptcy, but there is no indication in the financial report that the Company was indeed approaching bankruptcy. The Company was current on all of its obligations and had successfully paid off notes in 1980 amounting to over $400,000 for the purchase of the Braintree facility. Further, Moskowitz testified that he became con- cerned about the Company 's financial condition in "mid- 1980," that is, in June, but that he waited until after the August sneaker season for the layoffs. If his concern was great, why did he not institute layoffs in June and July, and then recall workers as needed for the back -to-school sneaker season? The length of the period of time that elasped between mid-1980 and October 3, 1980, leads me to conclude that Moskowitz was not as concerned about reducing the payroll as he testified and that he decided to implement layoffs when the organizing activity began. Further, the testimony shows that after the layoffs of October 3, 1980, some office employees performed ware- house work. Although the extent of this effort does not appear in the record , the fact that office employees were required to help in the warehouse lends credence to the General Counsel's theory of the case. I have also taken into account the testimony of Robert and Thomas Nola, described above, and I find that it lends support to my conclusion that the real reason for the layoffs was the organizing activity in the warehouse. B. The Alleged 8(a)(1) Violations 1. Comments of Ed Davis The General Counsel alleges that certain comments made by warehouse employee Ed Davis constitute viola- tions of the Act. The General Counsel maintains that Ed Davis is assistant warehouse manager and a supervisor within the meaning of the Act. Stephen Jones, a picker in the warehouse until he was laid off on October 3, 1980, testified that in September 1980 he and Andrew Freudenberg were talking in the warehouse fishing area about the Union and their desire for better pay and working conditions . 12 Jones noticed Ed Davis sitting on a shelf 10 or 15 feet away. Also about this time, Jones was sitting with Freudenberg and Robert Nola when Davis walked up to the group and said, "We know what's going on and we're going to fix that " Davis then repeated the phrase Andrew Freudenberg, a packer and truckloader at the Company until his layoff on October 3, 1980, testified that a few weeks before the layoffs he was talking about i l See Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981 ), cert denied 455 U S 989 ( 1982) 12 Jones is now a police officer for the town of Walkill ROSKIN BROS the Union to Jones when Davis walked by and said, "We know what you're doing We'll fix that." In mid-Septem- ber, Freudenberg was talking to another employee on the dock when Davis said, "[Y]ou'll never have a union in here." Davis did not testify in this proceeding The testimony of all the witnesses shows that Davis and Coons were often together and that Davis often re- layed messages to employees from Coons and conveyed employee requests to Coons. The testimony of Rosemary Palazzo shows that on one occasion Coons was planning to discharge an employee named Dibble for excessive tardiness 13 Before Coons left the plant for a scheduled absence, he informed Palazzo and Davis that Dibble should be fired if he came in late again When Dibble was next late, Davis telephoned Coons, who instructed him to give Dibble a layoff slip and sign it 14 Palazzo typed the slip and Davis signed it "Assistant Warehouse Manager " Further, in Coons' absence, Davis told em- ployees which work to perform The evidence shows that Davis performs warehouse work such as picking, packing, and stocking shelves much of the time and that he also runs errands for Coons. He is paid by the hour and punches the timeclock. He has no authority to hire or fire, to discipline employees or effectively recommend discipline, to grant raises in pay, or to grant time off. Davis occasionally reports to Coons whether certain em- ployees are performing their work properly, but he has no power to take any action if an employee is not per- forming adequately. The evidence will not support a finding that Davis is a supervisor. I find that he is a unit employee. The General Counsel argues that even if Davis is not found to be a supervisor, Respondent must nevertheless be held responsible for Davis' statements, even absent evidence that Respondent authorized Davis' remarks, be- cause Davis was used as Coons' "conduit" to the em- ployees and as his "right-hand man "15 I find that al- though Davis was not a supervisor, he was used to relay instructions and messages to employees and was correct- ly perceived as the warehouse manager's right-hand man who spoke for the manager in his absence . Thus, I find that Davis had been "placed by management in a strate- gic position where employees could reasonably believe he spoke in its behalf." B-P Custom Building Products, 251 NLRB 1337 (1980). Davis' statements must be viewed in context. The un- contradicted evidence shows that Davis was one of the employees who told Coons about the employees' orga- 11 Palazzo picked and packed orders, helped Coons, and generally re- layed his instructions to warehouse employees in Coons' absence 14 The company policy is to give layoff slips to discharged employees to facilitate their collection of unemployment insurance i S The General Counsel cites Joint Industry Board of the Electrical In- dustry, 238 NLRB 1398 (1978) (employer is liable foi violative statements of nonsupervisor who "routinely acted as a conduit" between supervisors and rank -and-file employees , provided approved instruction in new tech- niques , and acted on employer's behalf in adjusting customer complaints), and River Manor Health Related Facility, 224 NLRB 227 (1976) (employ- er responsible for violative conduct of nonsupervisors who have been "placed in a strategic position where employees could reasonably believe they speak on its behalf," where nonsupervisors direct employees to a limited extent , issue warnings on instructions of supervisors , provide re- ports as to employee performance, and change employees' duties when necessary) 421 nizing activities; Jones and Freudenberg observed him apparently listening to their conversation about, union benefits Before the layoffs, Davis told Freudenberg, "[Y]ou'll never have a union in here." About the same time, Davis made the statement to Jones and Freuden- berg which the General Counsel contends violates the Act to the effect, "We know what's going on and we're going to fix that."16 I find that this statement gave the impression that Respondent was engaged in surveillance of its employees' union activities and conveyed a threat that Respondent would retaliate against those involved. Therefore, I find that Davis' statement violated Section 8(a)(1) of the Act 17 2 Testimony of Palazzo Rosemary Plazzo testified that after the October 3 lay- offs Nicholas De Rosa was hired and she observed him picking orders in the warehouse. When Palazzo was about to give a statement to a Board agent, Coons told her not to say more than she had to and to say that De Rosa was hired for security work. Palazzo gave the Board agent a statement to the effect that De Rosa did security work; she had never personally observed this activity. De Rosa, who worked part time at the ware- house, was on the Middletown police force, and both Coons and Moskowitz testified that De Rosa was hired to do undercover work and detect a theft problem that had arisen in the warehouse in August or September 1980. De Rosa was hired in early November and ceased work in December without discovering the reason for the thefts. De Rosa was not called to testify. Coons ac- knowledged talking to Palazzo before she gave a state- ment to a Board agent and telling her that De Rosa had been hired as an undercover officer The General Counsel contends that Coons suborned perjury by Palazzo and that this constitutes a violation of Section 8(a)(1). In the absence of any testimony or evidence in the record which would show that De Rosa was not in fact hired to do undercover work, I cannot find that Coons asked Palazzo to swear to an untruth Thus, I find no violation of the Act in connection with this incident. 3 The Hujus incident Coons testified that he became aware on the Saturday before the trial that Lester Hujus , a warehouse employ- ee, had been subpoenaed by the General Counsel. The two men were at :. company picnic, and Coons asked Hujus if he were going to appear at the trial . Hujus re- plied that he did not know. Coons saw Hujus at the warehouse on Monday , the first day of the trial , but the subject was not raised again. On Tuesday, during the trial, Coons called the warehouse and told Hujus that he had heard that Hujus was supposed to appear on Monday. Hujus replied that he was subpoenaed for Tues- 1 s I attach no significance to the fact that the employees could not re- member whether Davis made his remarks I or 2 weeks before the layoffs They all testified that Davis spoke to them not too long before the lay- offs 17 Scott's Wood Products, 242 NLRB 1193 (1979) 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day When Coons asked, "[A]ren't you coming?" Hujus hesitated. At that point, Coons told Hujus, "I guess you can't worry too much about it " Hujus testified that he first spoke to Coons about the subpoena on Monday. Hujus asked jokingly if Coons thought he could go to jail, and Coons said to him about the subpoena that "he didn't think I had to worry about it " Hujus stated that he ultimately came to testify be- cause counsel for the General Counsel telephoned and asked him to come to New York City from Middletown. Hujus had not planned to travel to New York City, a distance of 85 miles, because he had "no gas, no money for tolls or nothing " The General Counsel contends that Coons "encour- aged" Hujus not to appear at the hearing in violation of Section 8(a)(1) of the Act. I find that Coons' statement to Hujus that he should not "worry" in response to Hujus' doubt about appearing at the hearing was de min- imis and did not violate the Act. C. The Alleged 8(a)(5) Violation 1. The appropriate unit The General Counsel alleges that a unit of all ware- house employees is appropriate, including employees in the following job titles. picker, packer, checker, receiv- ing clerk, shipping clerk, stocker, return goods clerk, and UPS clerk. In late September and up to October 3, 1980, there were 18 full-time and 2 part-time employees in the warehouse, including Ed Davis whom I have above found not to be a supervisor, but excluding Coons. Coons was the warehouse manager, he is conceded to be a supervisor under the Act. By October 1, 1980, 11 of the warehouse employees had signed authorization cards for the Union. On December 24, 1980, Local 464A re- quested Respondent to recognize it as the exclusive col- lective-bargaining representative in the warehouse unit. Respondent urges that a unit composed solely of ware- house employees is not appropriate and that the unit should also contain some employees who work in the office These include six inside sales employees, five order entry clerks, three purchasing agents or buyers, one checker, two credit control clerks, one inventory entry and file clerk, two accounts payable clerks, two merchandise credit return clerks, one order control and merchandise tracing clerk, and two print and mailroom clerks. There is extensive testimony on the record concerning the duties of Respondent's employees and the functioning of the facility at Middletown in October 1980. The office and warehouse were both located in a single building which was originally constructed for other purposes The office area was partitioned and sepa- rate from the warehouse, and a person standing in either the warehouse or the office could not see what was going on in the other area. In order to reach the warehouse, employees walked through the office area. The single timeclock was locat- ed there near the receptionist, the cards of office workers were located on one side of the clock and the warehouse employees' cards were on the other side. The warehouse was not air-conditioned, whereas the office area was air- conditioned. Wayne Coons, the warehouse manager, described the day-to-day operation of the warehouse as it was in Octo- ber 1980.18 When a delivery was made to the warehouse, the re- ceiving clerk checked the merchandise against the order form to be sure it was correct and the clerk or another employee put the material on the racks in the warehouse. The clerk prepared a receiving report and took copies into the office for the buyer and for the clerical employ- ee who classified the merchandise according to a com- puter designation. When an order was taken by Respondent's outside or inside salesmen, a sales order was prepared, it was checked by the credit manager, given an invoice number by the control clerk, and, in the case of a Converse order, given to the order entry clerk in the computer room. The control clerk then carried the sales order to the warehouse and gave it to a shipping clerk or other employee. The shipping clerk decided whether the order was to be shipped by common carrier or UPS, and pre- pared a bill of lading for the common carrier. Then, the clerk put the order into a bin. A picker took the order form from the bin and used it to select the required mer- chandise, which was then transported to a table in a cart. If the picker had any question, as happened frequently, he talked to an inside sales person about the order. After the merchandise was placed on a table by the picker, a checker compared the order form with the merchandise selected to be sure that the picker had picked the proper items. Both the picker and checker made notations on the order form, a copy of which went to the customer. Following this, a packer packed the merchandise into boxes, and noted on the order form the date, the number of cartons, and his or her initials. After an order was packed, it was given to the shipping clerk, who either put the packages into bins for common carrier pickup or placed them on the UPS station. The shipping clerk ensured that the order was billed by giving a copy of the order to the order entry clerks in the office area, who entered the sale into the computer which then produced an invoice If problems in billing arose, an office worker checked the order by talking to any employee in the warehouse who was familiar with the order. Coons testified that as much as possible Respondent tried to have all warehouse employees learn each others' jobs so that all could help out where needed.19 In fact, company policy was to avoid sending employees home for lack of work, and warehouse employees might be asked to fold catalogs in the office if that work was available. Further, in the last 8 years, Coons had seen computer employees help out in the warehouse about four or five times. Occasionally, an inside salesman went into the warehouse to fill an order and performed the - Coons supervised warehouse employees only He had no authority over office employees, except to ask them to leave the warehouse if they had no legitimate business there 19 Respondent had many employees at the minimum wage and there was a lot of absenteeism ROSKIN BROS picking, packing, and shipping functions. Coons testified that warehouse workers did not perform computer work in the office, nor have they done other office work in sales, order checking, or the like. Palazzo testified that warehouse employees performed each others' tasks when necessary, but that the office em- ployees performed warehouse jobs "very, very few times" if the computer broke down. Once or twice, a salesman might pack an order he had just taken. Perhaps once a month, if the warehouse was slow, the employees would be asked to perform tasks in the office area. Moskowitz also testified about the operation of the Middletown facility. All applicants for employment by the Company, both in the office and the warehouse, were interviewed initially by the office manager and, if found suitable, were referred for a further interview to the supervisor in charge of the department experiencing the job vacancy. The "company policy" regulating vaca- tions, holidays, sick leave, benefits, and the like applied to all employees equally. However, warehouse employ- ees worked different hours from office employees, and office employees, unlike warehouse employees, could not wear jeans or shorts.20 Warehouse employees were paid hourly from $3.15 to $4.25 per hour. Office employees were paid both hourly and weekly. There were three buyers at the Company, two of whom were originally warehouse employees. They were salaried, earning from $326 to $405 per week. In some product lines where computer readouts of goods on hand were not available, buyers went into the warehouse to ascertain if the stock was low and needed to be replen- ished. Warehouse employees might ask the buyers ques- tions relating to certain products with which they were not familiar. According to Moskowitz, these contacts oc- curred on a daily basis. The five order entry clerks processed the orders to produce the order form and produced other types of computerized reports These clerks were paid from $3.75 to $4.50 per hour. They reported to their own supervi- sor. When the computer broke down, they might be sent to help out in the warehouse The order entry clerks were responsible for billing from the completed order, and they might ask the pickers questions as to notations made on the order forms when the order was being picked According to Moskowitz, there were many con- tacts during the day between warehouse employees and the order entry clerks. The two credit control clerks were responsible for fixing terms of payment on orders. Occasionally, they discussed routing with the shipping clerk, or went to the warehouse to stop an order where adverse credit infor- mation about the customer had been received by the Company. The credit control clerks were under the su- pervision of the credit manager One clerk earned $210 per week and the other $4.25 per hour. The inside checker delivered orders to the shipping clerk in the warehouse She earned $4 per hour and was supervised by the office manager. 20 Moskowitz stated that five employees from the warehouse have transferred to positions in the office as buyers, inside salespeople, and print shop employees in the last 7 years 423 The inventory entry and file clerk obtained receiving reports from the receiving clerk and encoded the infor- mation'for the company computer She had daily contact with the return goods clerk and receiving clerk in the warehouse. This clerk was paid $3.75 per hour and was supervised by the office manager. There were two accounts payable clerks. Their duties included comparing invoices from vendors with receiv- ing reports obtained from the receiving clerk, and pre- paring the bills for payment They determined the extent of damages and shortages by consulting with the receiv- ing clerk These contacts occurred a few times a week. The accounts payable clerks earned $3.50 and $4.375 per hour, and they were supervised by the head of book- keeping and accounting. The two merchandise credit returns clerks received paperwork from the returned goods clerk in the ware- house and performed the tasks required either to issue a credit memo or charge the customer for the goods. These clerks were "constantly" in the warehouse check- ing matters with the warehouse clerk. They earned $3.50 and $4 per hour and were supervised by the office man- ager. There was one order control and merchandise tracing clerk who was responsible for logging orders before they were put into computerized form and for delivering orders to the shipping clerk. She was present in the warehouse several times a day and warehouse employees often asked her for information. She earned $3.50 per hour and was supervised by the office manager. There were two print and mailroom clerks and one su- pervisor. They produced the company catalogs, station- ery, and forms and they handled all mailing. When flyers were mailed, at least once a month, many warehouse and office employees participated in the collating and mailing process. The mailroom was located in the warehouse and often the mailroom clerks used the warehouse UPS ma- chine and the power jacks to move paper around. The clerks earned $3.10 and $3.875 per hour. One of these clerks was formerly the returned goods clerk in the warehouse. There were six "inside sales" employees earning from $3.50 to $4.50 pcr hour. They punched the timeclock and received overtime. Their functions were to help "walk- in" customers, take telephone orders, and check all orders which come to the Company for accuracy of in- formation On "many occasions," according to Moskowitz, inside salespeople personally went to the warehouse to pick an item which they had just sold to a walk-in customer. On a daily basis, pickers from the warehouse checked with the sales employees when there were questions about an order form. The inside salespeo- ple were responsible to the supervisor of inside sales. According to Moskowitz, when annual inventory was taken, teams were constituted combining office and warehouse employees to count the stock and enter it on the forms. This usually took 2 weeks, at the end of De- cember. The inventory entry and file clerk, the accounts payable clerks, the order control clerk, the order entry clerks, and the inside salespeople worked with the ware- house employees to conduct the inventory. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The principle is well established that. "There is noth- ing in the statute which requires that the unit for bar- gaining be the only appropriate unit, or the ultimate unit, or the most appropriate unit, the Act requires only that the unit be `appropriate "' Morand Bros Beverage uo., 91 NLRB 409, 418 (1950) Thus the question to be decided is whether the Union demanded recognition in an appropriate unit of ware- house employees. The General Counsel argues that a separate unit of warehouse employees is appropriate because warehouse employees work together, have common supervision under the warehouse manager, and have the same hours and working conditions which are distinct from those of Respondent's office workers The General Counsel relies on Wicks Furniture, 255 NLRB 545 (1981), where the Board excluded warehouse clericals from a unit of ware- house employees, finding that these clericals had more contact with front office clericals than with warehouse employees and spent a "minimal amount of time" in the warehouse when engaged in merchandise returns. Fur- ther, the Board found a community of interest among the warehouse employees because they "spend no less than 60 to 70 percent" of their time in the warehouse The Board formulated the conditions for a separate warehouse unit in A. Harris & Co, 116 NLRB 1628 (1956) The criteria were (1) warehouse employees had separate supervision, (2) they did substantially all their work in a geographically separate area, and (3) they were not integrated to a substantial degree with employ- ees in other divisions. These criteria were discussed in Gustave Fischer, Inc., 256 NLRB 1069 (1981), where the Board distinguished the facts in that case from the facts which would permit a finding of an appropriate separate warehouse unit. In Gustave Fischer, the Board found that the employer's warehouse and office divisions constituted a highly integrated operation with a substantial degree of interaction among the various classifica- tions of employees, where the emphasis appears to be placed upon completing the task at hand, rather than upon the particular classification of employee involved. The Board further found that . . . flexibility is underscored by the use of employ- ees "as needed," as well as by the Employer's mode of promotion, which involves movement of an em- ployee through a progression of classifications. Almost all the employees had begun work for the em- ployer in the warehouse. At least once every 5 days, all the employees together helped to unload and sort certain large orders. Inside order takers spent 30 percent of their time picking orders in the warehouse. The Board deter- mined that the "Employer's method of operations pro- motes interchangeability and contact among its employ- ees." Wrappers, pickers, and inside order takers regularly used a common work area known as "special accounts." A warehouse employee regularly helped the salesmen and designers in the customer showroom. The expediter was "in close and constant communication with all areas and facets of the employer' s operation ." Finally, the Board found. [T]here does not appear to be a fixed chain of com- mand, and the high degree of employee interaction tends to blur supervisory distinctions. In the instant case, the warehouse employees work dif- ferent hours from the office employees and dress differ- ently from them. There is no evidence of common super- vision or of the blurring of supervisory distinctions. Warehouse employees spend most of their time in the warehouse and office employees spend most of their time in the office. The two areas are geographically separate. The testimony shows that on rare occasions (such as a breakdown of the computer) some office employees may be given work in the warehouse; however, this does not approach the once every 5 days frequency of the compa- rable occurrence in Gustave Fischer. Respondent relies on Gustave Fischer, supra, Avon Products, 250 NLRB 1479 (1980); Scholastic Magazines, 192 NLRB 461 (1971), Healthco, Inc., 233 NLRB 835 (1977) Industrial Supplies Co., 237 NLRB 189 (1978), and American Parts System, 254 NLRB 901 (1981). In Avon, supra, the Board found a "highly integrated operation" where employees transferred very frequently among the various jobs available at the premises and where every facet of the operation was controlled by 2- week computerized plans Similarly, in Scholastic Maga- zines, the process was described as "highly integrated" and it was distinguished by the Board from a case where "excluded office employees exercised unrelated skills in that they dealt directly with customers by telephone and prepared order forms and warehouse worksheets from an inventory of over 70,000 items." 192 NLRB at 462 fn. 3. In Healthco, in addition to other factors, the office and warehouse employees worked the same hours and shared common supervision. In Industrial Supplies, in addition to other factors, the employees had common supervision. Finally, in American Parts System, supra, in addition to other factors, the Board cited the fact that both ware- house and nonwarehouse employees "handle the same form essential to their respective job functions; i.e., the picking ticket." In the instant case, Respondent did not utilize a "pick- ing ticket" at the time in question, there was no constant transfer of employees between warehouse and office, the supervision of the two groups was separate and distinct, and the employees worked different hours Computer op- erators performed warehouse work a few times per year and warehouse employees helped stuff envelopes in the print shop about once a month. Coons' testimony shows that inside salesmen "occasionally" filled orders in the warehouse.2 i According to Moskowitz, there were daily or weekly contacts between some warehouse and office employees concerning discrepancies in forms, the avail- ability of merchandise, the whereabouts of orders, and 21 I credit Coons' testimony on this point rather than Moskowitz' to the effect that this occurred more often because Coons was present in the warehouse every day while Moskowitz often took trips and spent much time in his office ROSKIN BROS the like. However, I find that the evidence herein does not show the type of "highly integrated" operation de- scribed by the Board in the cases relied on by Respond- ent. I find that the following unit sought by the General Counsel and the Charging Party is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All full-time and regular part-time warehouse em- ployees employed by Respondent at its Middle- town, New York facility including pickers, packers, checkers, stockers, receiving clerks, shipping clerks, returned goods clerks and UPS clerks, excluding all other employees, office clerical employees, manage- rial employees, salespersons, guards and supervisors as defined in the Act. 2. The majority status There were 20 employees in the warehouse unit.22 Eleven authorization cards signed by warehouse employ- ees were submitted into evidence. I find that the Union has been designated as representative of a majority of the employees in the unit found appropriate herein as their collective-bargaining representative. 3 The bargaining obligation The Supreme Court has established the principle that bargaining orders should issue in cases where the "outra- geous" and "pervasive" unfair labor practices committed by an employer are such "that their coercive effects cannot be eliminated by the application of traditional remedies" or where "less pervasive practices . . . none- theless have the tendency to undermine majority strength and impede the election process."23 In this case, the Employer terminated 8 out of 11 em- ployees who had signed cards for the Union, almost one- half of the entire bargaining unit. In addition, Respond- ent's agent Hujus gave employees the impression that their union activities were under surveillance and that Respondent would retaliate against employees for union activity. I find that the possibility of erasing these unfair labor practices and of ensuring a fair election is slight, there can be no more forceful injury to the ability to conduct a fair election than the termination of virtually all employees who supported the Union.24 In sum, I conclude that Respondent has violated Sec- tion 8(a)(5) of the Act by its refusal to recognize and bargain with the Union, and that a bargaining order is necessary CONCLUSIONS OF LAW 1. Roskin Brothers, Inc 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 mean- ing of Section 2(5) of the Act. 22 See Jt Exh 1 22 NLRB v Gissel Packing Co, 395 U S 575, 613-614 (1969) 24 Palby Lingerie, 252 NLRB 176, 184-185 (1980), Marysville Trove- lodge, 233 NLRB 527, 533 (1977) 425 3. Respondent violated Section 8(a)(1) of the Act by creating the impression of surveillance of employees' union activities and threatening unspecified reprisals in retaliation therefor. 4 Respondent violated Section 8(a)(3) and (1) of the Act by discharging Sanford Fish, Ronald Terwilliger, Robert Nola, Stephen Jones, Andrew Freudenberg, Katherine Dunning, Robin Hasbrouck, and Harold Titman because they joined the Union. 5. All full-time and regular part-time warehouse em- ployees employed by Respondent at its Middletown, New York facility including pickers, packers, checkers, stockers, receiving clerks, shipping clerks, returned goods clerks, managerial employees, salespersons, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 6. The Union is the exclusive collective-bargaining representative of the employees in the above-described unit. 7. By refusing since October 3, 1980, to recognize and bargain with the Union as the exclusive collective-bar- gaining representative of its employees in the appropriate unit set forth above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. No other violations of the Act were committed THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Having found that Respondent discharged its employ- ees named above in violation of Section 8(a)(3) and (1) of the Act, I recommend that Respondent be ordered to re- instate them to their former positions or, if no longer available, to substantially equivalent positions, without prejudice to their seniority and other rights and privi- leges, and make them whole for any loss of earnings or other monetary loss they may have suffered as a result of the discrimination against them, less interim earnings, if any. The backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner described in Flori- da Steel Corp., 231 NLRB 651 (1977).25 It is further recommended that Respondent be ordered to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit set forth above as of October 3, 1980.26 25 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 26 The employer's duty under a bargaining order should commence as of the time the employer embarked on a clear course of unlawful conduct or engaged in sufficient unfair labor practices to undermine the union's majority Trading Port, 219 NLRB 298 , 301 (1975), Peaker Run Coal Co, 228 NLRB 93 (1977) 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed27 ORDER The Respondent, Roskin Brothers, Inc., Middletown, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Creating the impression that it is engaged in sur- veillance of its employees' union activities, and threaten- ing its employees with retaliation for their union activi- ties. (b) Laying off or discharging its employees because of their union activities. (c) In any like or related manner interfering with, re- straining, 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 effectuate the policies of the Act. (a) Offer Sanford Fish, Ronald Terwilliger, Robert Nola, Stephen Jones, Andrew Freudenberg, Katherine Dunning, Robin Hasbrouck, and Harold Titman full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges and make them whole for their loss of earnings in the manner set forth in the section of the decision entitled "The Remedy." (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (c) On request, recognize and bargain with United Food and Commercial Workers Union, Local 464A, AFL-CIO in a unit of all full-time and regular part-time warehouse employees employed by Respondent at its Middletown, New York facility including pickers, pack- ers, checkers, stockers, receiving clerks, shipping clerks, returned goods clerks and UPS clerks, excluding all other employees, office clerical employees, managerial employees, salespersons, guards and supervisors as de- fined in the Act, respecting rates of pay, wages, hours or other terms and conditions of employment and, if an un- derstanding is reached, embody such understanding in a signed agreement. (d) Post at its Middletown, New York facility copies of the attached notice marked "Appendix."28 Copies of the notice, on forms provided by the ,Regional Director for Region 2, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violation of the Act not specifically found. 27 If no exceptions are filed as provided by Sec 102 46 of the Board's 28 If this Order is enforced by a Judgment of a United States Court of Rules and Regulations, the findings, conclusions, and recommended Appeals, the words in the notice reading "Posted by Order of the Na- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the tional Labor Relations Board " shall read "Posted Pursuant to a Judgment Board and all objections to them shall be deemed waived for all pur- of the United States Court of Appeals Enforcing an Order of the Nation- poses al Labor Relations Board,"