Moe Warehouse & Accessory

1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moe Warehouse & Accessory - and Food Process Workers, Warehousemen & Helpers Local 228, affiliated with . International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America. Cases 20-CA-18789, 20-CA- 18902, and 20-RC-15726 19 July 1985 DECISION, ORDER, AND DIRECTION By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 22 January 1985 Administrative Law Judge Roger B. Holmes issued the attached decision. The General Counsel filed limited exceptions. . . The Board has considered the decision and the record in light of the exceptions and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order.' the Regional Director shall set aside the election, dismiss the petition, and vacate the proceedings in Case 20-RC-15726. DECISION STATEMENT OF THE CASE ROGER B HOLMES, Administrative Law Judge. The unfair labor practice charge in Case 20-CA-18789 was filed on March 5, 1984, by Food Process Workers, War- ehousemen and Helpers Local 228, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen '& Helpers of America (the Union or the Charging Party).. The General Counsel of the National Labor Relations Board issued on April 27, 1984, a com- plaint in Case 20-CA-18789 against Moe Warehouse & Accessory (the Employer or the Respondent). The Gen- eral Counsel'alleges that the Respondent had. engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. In its answer to the complaint, the Re- spondent denies that it had committed the alleged unfair ORDER - labo ratices - r c The National Labor Relations Board adopts the recommended Order' of the administrative law judge and orders that the Respondent, Moe Ware- house & Accessory, Sacramento, California, its of- ficers, agents,' successors, and assigns, shall take the action set forth in the Order.- DIRECTION It is directed • that the Regional Director for Region 20 shall, within 10 days.from the 'date of this decision, open and count, those ballots whose challenges thereto have been overruled by the ad- ministrative law judge. The Regional Director shall prepare and serve upon- the parties a revised tally of -ballots which will, if the- Union receives a ma- jority of the valid votes cast, provide the basis for issuing a. certification of representative. Should the Union not receive a majority in the revised tally, I In the absence of exceptions by the Respondent, we adopt pro forma the judge's recommendation that pursuant to NLRB v Gissel Packing Co. 395 U S 575 (1969). a bargaining order be issued We do not adopt the judge's contingent recommendation that, subject to the Union's approval and participation, a second election should be di- rected Because the Union's motion to modify the judge's decision, which the General Counsel has incorporated into his limited exceptions, reflects its decision not to proceed to a second election, we find that the judge's related recommendation is subject to a contingency which has not been met However, we deem it appropriate that the Regional Director open and count those ballots whose challenges thereto have been overruled and issue a revised tally of ballots As in Kurz-Kasch, Inc, 239 NLRB 1044 (1978), we conclude that the Union is entitled to a certification of representative should it win the election If the Union should lose the election based on the revised tally of ballots, the election will be set aside and the bargaining order alone will take effect Member Dennis adopts the judge's recommendation that a Gissel bar- gaining order be issued without the "pro forma" reference her colleagues find necessary In addition, Member Dennis finds merit in the General Counsel's contention that a revised tally of ballots is inappropriate be- cause the Union specifically requested that such a tally not be issued Ac- cordingly, Member Dennis would vacate the representation proceedings p . The unfair labor practice charge in Case 20-CA-18902 was filed on April 13, 1984, by the Union The General Counsel of the Board issued on May 30, 1984, a com- plaint in Case 20-CA-18902 against the Employer. The General Counsel alleged that the Respondent had en- gaged in unfair labor practices within the meaning of Sections 8(a)(1), (3), and (5) of the Act. In its answer to the complaint, the Respondent denies that it had commit- ted the alleged unfair labor practices. On May 30, 1984, the General Counsel issued an order consolidating cases, wherein the two complaint cases were consolidated. The petition in Case 20-RC-15726 was filed by the Union on, February 24, 1984. A Stipulation for Certifica- tion Upon Consent Election was 'signed by the Employer and by the Union, and the stipulation was approved by the Regional Director for -Region- 20 of the Board on March 23, 1984.. A representation election was' conduct- ed on April l1,-1984, among the employees in the -unit described below. - All full-time and regular part-time warehouse, sales, clerical employees, production and maintenance em- ployees employed by the Employer at its Sacramen- to, California, facility; excluding confidential em- ployees, guards and supervisors as defined by the Act: The tally of ballots for the election disclosed that two votes were cast for the Union; one vote was cast against the Union; and six ballots were challenged. Therefore, the six challenged ballots were sufficient in number to affect the results of the election. Thereafter, the Union filed three objections to the conduct of the election and to conduct affecting the results of the election. The Union asked that the election be set aside. On June 26, 1984, the Regional Director for Region 20 of the Board issued a Report on Objections and Chal- lenged Ballots, order consolidating cases, and notice of 275 NLRB No. 165 MOE WAREHOUSE & ACCESSORY hearing wherein the issues raised by the challenged bal- lots, the union objections to the election, and the alleged unfair labor practices in the two complaint cases were consolidated for hearing. • The trial in this consolidated proceeding was held on July 26 and August 16, 1984, at Sacramento; California. The time for the filing of posttrial briefs was extended to October 12, 1984. . • FINDINGS OF FACT 1. JURISDICTION The jurisdiction of the Board to hear and determine the issues in this proceeding is not in question. The Em- ployer has been, at all times material, a California corpo- ration with an office and place of business in Sacre- mento, California, where the ' Employer has been en- gaged in the nonretail sale and distribution of auto parts and accessories. In the course and conduct of its-business operations during the 12-month period-ending December 31, 1983, the Employer purchased and received at its Sacramento, California facility products, goods, and ma- terials valued in excess of $50,000 directly from points outside the State of California. It is admitted in the pleadings that the Respondent, at all times material, has been an employer engaged in commerce within. the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION , The status of the Charging Party as being a labor or- ganization within the meaning of the Act also is not an issue in this proceeding It is admitted in the pleadings that the Charging Party, at all times material, has been a labor organization within the meaning of Section 2(5) of the Act. - III. THE EVENTS IN DECEMBER 1983 The findings of fact throughout this decision" are based on the credited portions of the testimony from the wit- nesses In deciding which portions of the testimony are credible, I have considered the demeanor of the wit- nesses while they were testifying. In addition, I have given consideration to such factors as whether the ver- sion of an event related by one witness is consistent or inconsistent- with the testimony of other, witnesses and facts which are not in dispute.' I also considered the probability, or the improbability, of certain versions in light - of the record as a whole Documentary evidence also has been considered, and certain findings of fact are based on such documents. The testimony from each one of the seven persons who testified at the trial in, this pro- ceeding has been relied on in making -certain findings of fact. However, most'of the findings'are based on the tes- timony by six witnesses. Substantial portions of the testi- mony given by Moe Abba at the trial in this proceeding were' contradicted by the 'credible testimony of 'other witnesses. If the testimony of those other 'witnesses is to be believed,, then Abba's versions of conversations and events cannot be accepted as being credible. Thus, it would not be consistent to place -reliance on his accounts 1133 except to a limited extent which will be specified later herein • - John Palmer , who formerly was the general manager of the Employer, and who was a -witness at the trial in this proceeding, gave a warning letter to Don Baker for tardiness on December 6, 1983.1 Palmer said -at the trial that tardiness had been a continuing problem with Baker. If the starting time was 7 a in., he said Baker came in 5 minutes after 7 a.m. If the starting time was 8 a .m., Baker came 3 to 5 minutes late Introduced into evidence as Respondents Exhibit 1 was a copy of the warning from Palmer-:to Baker. It stated : "Attention Don. This is remainder again ! If you cannot make it work at the given time-stay home.- Last warning"!" The document is dated "2-6-83," but Palmer said it was given on December 6, 1983 2 The warnings which were introduced into evidence as General Counsel 's' Exhibits 6(a) through (d) originally were attachments to General Counsel 's Exhibit 7, which is the pre-trial affidavit of Abba given to a NLRB agent. Abba is the owner of the Employer . After Palmer left the witness stand on the third occasion he testified in this proceeding, Palmer recalled, that Abba had instructed him December 1983 to place warning notices in every- body's personnel file The stipulation, as proposed by the General Counsel, was accepted by the attorney for the Respondent. (See the discussion at Tr. 374-380.) Thus, _ thereafter Palmer was not called back to the witness stand,'and his , earlier, testimony regarding warnings and regarding those documents had to be reevaluated in light of his' subsequent recollection after he left - the witness stand . Nevertheless • his testimony regarding his giving a warning (R Exh., 1) to Baker on December 6, 1983, still stands as persuasive. Palmer also said that he gave oral warnings to Baker and Steve Miller for making mistakes in their job per- formance . At one point prior to any union activity, Abba recommended that Palmer get rid of the leader of the warehouse, who was Baker. At another point after Christmas - 1983 when "the work was falling off," but prior to any union activity, Palmer went to Abba and recommended - that Baker be discharged.3 However, Baker was, not terminated by the Employer on either oc- casion. ° '. Steve Parker, who formerly was a salesman for the Employer, and who was a witness at the trial in this pro- ceeding, began working as a salesman for the Employer on December 21, 1983 . He spent about 80 percent of his working time in the field and about 20 percent of his working time at the Employer 's warehouse: He wrote orders from customers; delivered orders, put the mer- chandise up in the stores ; , did public relations work; drove a truck; and did "just about everything" in the warehouse In either the first or the -second nd week-of his employment with the Company, -Parker said that Abba held a meeting with the employees. 'Parker said that- 1 Baker is one of the two alleged discriminatees in this proceeding, and he also was a witness at the trial This is based on the credited testimony of Palmer Abba said this occurred "numerous times" with regard to Baker and Miller, but I accept Palmer's testimony on the point - 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Abba told the employees that everybody "would be out the door," if things in the warehouse did not start getting straightened out.4 Melvin Felton, who is one of the two alleged discri- minatees in this proceeding, and who was a witness at the trial, was hired by the-Employer on December 24, 1983• Felton performed work in the warehouse were he pulled orders.and priced them. - IV. THE EVENTS IN JANUARY 1984 . John Palmer received a raise in pay of $100 per month effective on January 1, 1984. Also in January 1984, Sharon Rhodes, who formerly was a secretary and bookkeeper for the Employer, and who was a witness at the trial in this proceeding, re- cieved an $80 raise in her pay. She had been hired by the Employer in June 1982. Rhodes believed that all of the employees of the Employer received -a wage increase in January 1984. She said that Abba stated at the time that the employees would not be getting a raise for awhile.5 Stanley Tyrone Davenport, a warehousemen, left his active employment with the Employer on January 8, 1984, for 6 months training in the military reserves.6 V. THE EVENTS IN FEBRUARY 1984 Sometime' in February 1984, Palmer asked Abba for a second raise in pay because Palmer was going'to lose his Jeep due to his inability to make the payments. Abba of- fered Palmer another $100-per-month raise in pay in ex- change for Palmer's making his pickup truck available to Abba during -the days that Palmer worked. Palmer de- clined the offer because in his view Abba had not lived up to his agreement with Palmer to pay for the gasoline used,- maintenance, and tires for the pickup truck.? Introduced into evidence as General Counsel's Exhibit 11 was a copy of a written warning dated February 1, 1984, to Miller from Palmer.8 The warning was with regard-to Miller's refusal to wash the company van. The "reason given," as stated on the document, was: "It was too cold, I will catch the flu." The "conditions," as stated. on the document, were "weather outside was mild." Rhodes said that she had typed that document for Palmer who signed it. Rhodes then placed General Counsel's Exhibit 11 in Miller's personnel file. While she was-on the witness stand, Rhodes also examined three other written warnings to Miller, but she said she had not typed those documents; previously had never seen the. documents; and she had not seen those documents in Miller's personnel file. Those documents were General Counsel's Exhibits 8, 9, and 10.9 4 The foregoing is based on the credited testimony of Parker 5 The foregoing is based on the credited testimony of Rhodes She worked for the-Employer until July 10, 1984,-when she voluntarily quit to accept a higher paying job 6 Davenport did not testify This is based on the testimony of Palmer 7 The foregoing is based on, the credited testimony of Palmer 8 The Employer's termination of Miller is not alleged by the General Counsel to be an unfair labor practice The allegation with regard to Miller-was deleted by'the General Counsel at the trial. 9 The foregoing is based on the credited testimony of Rhodes Introduced into evidence as Respondent's Exhibit 4 was a copy of a typed. warning dated February 9, 1984, from Abba to Baker. The document states it is regarding: "very poor work on automotive reset a , Marysville Longs." With regard to three written warnings from Abba to Baker, Rhodes stated that she had not typed those docu- ments; previously had never seen those, documents; and she had not seen those documents in Baker's personnel file. Those' documents' were Respondent's Exhibits 4, 5, and 6.10 However, she acknowledged at the trial that the employees of the Employer did not have just one file. There were ,five files kept by the Company on its em- ployees. One. file was for personnel records and also con- tained notations about company merchandise purchased by the employees;, another file contained timecards; an- other file was maihtained for compensation cards; an- other file for ;resumes, and finally another for employ- ment applications. Although Rhodes had the responsibil- ity for keeping the employees' personnel records file, and although I credit her testimony regarding the documents mentioned above, I find in these circumstances that her testimony does not rule out the documents being placed by Abba in one of the several files maintained by the Company with regard to its employees. - Until Baker-.was shown Respondent's Exhibit 4 ,on the witness stand, he had never seen that document.' 1 Baker said there was a problem at the Longs Drug Store in Marysville around the date on Respondent's Exhibit 4, which date was February 9, 1984. Present at the Longs store that day were: Baker, Parker, and a new employees named Eric Rust. They were a day or two late for their apointment at the Longs Drug Store. They had gone to the store to reset the merchandise. Baker did not recall at the trial the name of the store manager, but he said that the store manager came over "and jumped down my throat." The store manager told Baker that "We had a lot of credits in the back that had been sitting in there - for months." 12 Next, the store manager pointed out that there were differences in the price of merchandise on the shelf. Some -items were 10 cents to 50 cents higher, than others. 13 10 I credit Rhodes' testimony in this regard, rather than Abba's version that they were typed by Rhodes I I The following is based on the credited testimony of Baker 12 At the trial, Baker explained that a credit in that context meant an overstock of merchandise, in other words, too much merchandise to be placed on the store shelves, so the remaining merchandise was placed in the back of the store for future use Baker said the policy was to try to bring the "credits" back to the warehouse, but a lack of time at the Longs Drug Store in Marysville caused the employees to 'leave the "credits" at the store However, in contrast to the Marysville store, Baker was of the opinion that there was enough time at the Grass Valley store of Longs to perform the required service work 13 At the trial, Baker said all the merchandise for that store was pre- marked at the warehouse before the employees got to the store -Some- times the employees at the warehouse did not locate the price in the,cata- logue, and they would ask Abba who told them the price "just off the top of his head " The items in question were ones that the Respondent normally stocked at that store When employees brought in new items without first contacting the store department head first, the store manag- ers also became upset regarding that MOE WAREHOUSE & ACCESSORY ' Introduced into evidence as Respondent's Exhibit 5- was a copy of a typed warning dated February 14, 1984, from Abba to Baker. The document states it is regarding: "Called in on Monday 2-6-84 saying he had to take par- ents to Sacramento airport and on Monday 2-13-84 called in saying he had to take-family to Los Angeles." Because of his grandfather's illness and hospitalization, Baker took his parents to the San Francisco International Airport on Monday, February 6, 1984.14 Baker tele- phoned Abba that morning before working hours, and he advised Abba of the situation Baker was absent from work that day, and he was not paid for that day. Baker returned to work on Tuesday, February 7, 1984. A few days prior to Friday, February 10, 1984, Baker asked Abba if he could have that day off because Baker was to be in a wedding. Abba said no because they were too busy. Abba explained to Baker that there were a lot of things going on, and there were a lot of new setups. Abba asked Baker if he could change his plans. Baker agreed to do so, and Abba gave Baker permission to be absent on Monday, February 13, 1984. Baker said he was in Los Angeles that day, and that he was not paid for that day. Baker returned to work for the Employer' on Tuesday, February 14, 1984. Prior to his contacting the Union, Palmer said that there had been conversations among employees during lunchtime about the, need for representation. Palmer tes- tified: "I made the decision to contact the union when Miss Rhodes asked me if I could contact the union." 15 Palmer looked in the telephone directory, and he found the name and the telephone number of the Charg- ing Party.16 On February 15, 1984, Palmer telephoned the Charging Party Union, and he left a message with a secretary there. John Christensen, who is a business agent of the Charging Party Union, and who was a wit- ness at the trial in this proceeding, called Palmer back the same day. Christensen told Palmer that he would come to the warehouse and talk to the employees. A meeting was held that morning around 9:30 or 10 a.m. Palmer called the employees into the lunchroom, and he introduced 'Christensen to the -employees. Palmer testi- fied. "I just told them that Mr. Christensen 'from the Local 228 was there and would like to talk to everybody and everybody came in." All of the Employer's employ- ees, except Parker who was not present at the ware- house, attended the meeting. Palmer also attended the meeting. -He testified: "I wanted to hear what was going on. But I was at the doorway of the lunchroom meeting' room, and all the other employees were inside the room with-listening to what Mr. Christensen had to say." No employee objected, either during the meeting or after- wards, about Palmer's being present. The meeting lasted for at least 1 hour, and the employees were paid for the time spent in the meeting. Abba was not at the ware- house at the time. 17 - ' 14 The following is based on the credited testimony of Baker, rather than Abba's version IS Rhodes corroborated Palmer in this respect 16 Prior to his employment with the Employer, Palmer had been a member of a labor organization At the time of the trial, Palmer was a member of Teamsters Local 150 17 The foregoing is based on the credited testimony of Palmer 1135 Christensen said that he asked those persons who were present to sign union authorization cards. Christensen testified: "I told them by signing the cards that they were showing a desire to become a bargaining unit under the auspices of Local 228." Christensen further testified. "I told them that their employer would be contacted by letter, and their wishes would be made known in a letter form to the-employer, that they, wished to establish a bargaining unit. Christensen also testified: "I told them that in the event that' their employer decided or did not want to have a bargaining unit, that we would file a peti- tion with the National Labor [Relations] Board and the cards would be submitted to the Board:"18 ' Introduced into evidence as General Counsel's Exhib- its 3(a) through (g) were seven union authorization cards bearing the signatures of- Imrit Nagra, Rhodes, Palmer, Miller, Felton, Baker, and Parker. All of the union au- thorization cards, except Parker's, were signed in Chris- tensen's presence at the meeting on February 15, 1984, and handed to Christensen at the meeting. The next day on February 16, 1984, Palmer gave a union authorization card and union pamphlets to -Parker, who signed the card and gave the card to Palmer. Palmer then gave- the card to Christensen. The words printed by machine on all seven of the union authorization 'cards introduced into evidence in this proceeding are the same. Each card has a heading which reads: "AUTHORIZATION FOR REPRESEN- TATION." There are spaces for the Company's name and address;,the employees name and address, the date; the employee's social security number; telephone number; kind of work; shift; present wage rate; and the employee's signature. The card also states that the em- ployee. "authorizes as my exclusive bargaining agent, Teamsters Local 228, affiliated with the International • Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America to represent me in negotiations for better wages, hours and working conditions." The cards also state: "THIS AUTHORIZATION CONFI- DENTIAL." . The parties stipulated that about February 15, 1984, the complete work force at the Employer's facility con- sisted of the following employees: Melvin Felton, Sharon Rhodes, Imrit Nagra, Donald Baker, Stephen Miller, and Steve Parker. Between the meeting on February 15, 1984, and the representation election held on April 11, 1984, Christen- sen said he had additional meetings with employees of the Employer. Introduced into evidence as General Counsel's Exhibit 4 was a copy of a letter'dated February 21, 1984, from the Union to. the Employer. Christensen said he mailed a copy of that letter to the Employer. In part, the letter states: - - The Food Process. Workers, Warehousemen and Helpers Union Local. 228 of Sacramento, California represents a majority of hourly employees at MOE Warehouse & Accessory We are willing to demon- 18 The foregoing is based on the credited testimony of Christensen 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strate this majority through a mutually agreeable third party by means of a signature card authoriza- tion check. As we do represent a majority of your employ- ees, we would like to immediately enter into negoti- ations to conclude a labor agreement which would be mutually beneficial. We understand that you are prepared to bargain in good faith, we also wish to do so. As reasonable persons, we're certain that we- could settle such a contract amicably We sincerely mean to do our part in representing your employees in an honest and open.fashion. We urge you to show your good faith by spending any monies which you might pay to an outside consult- ant to your employees in the terms of wages and other benefits. To do so, would be the first step in what we can see being a long and mutually benefi-, vial relationship. Contrary to what you may have been led to believe, good Company people can also be good Union people. On February 22, -1984, at approximately 11:15 am, Palmer was at the warehouse when he observed Abba come out of the lunchroom and sign for' a letter. t 9 Palmer was seated at his desk when Abba asked him if he knew anything about the letter which Abba had in his hand. Palmer replied that he did not know the contents of the letter, and he could not say whether or not, he knew anything about the' letter. Abba handed the letter to him, and Abba left to talk with a salesman. At the trial, -Palmer identified General 'Counsel's Exhibit 4 as being that letter. Palmer read the letter and made copies of it. Then he placed the letter on Rhodes' desk. About 15 minutes later, Abba asked Palmer if he had called the Union. Palmer said yes, he had done so. Ac- cording to Palmer, Abba in a raised voice asked Palmer why he had done so. Palmer replied that he had called the Union because of promises Abba had made but not fulfilled, the lack of heat in the warehouse and the work- ing conditions Abba told Palmer he was a "damn liar," and Abba said he no longer had any trust in Palmer, and that'Palmer had violated his rights with Abba. At that point, Rhodes said over the loudspeaker that Palmer had a telephone call. Palmer answered the telephone at' his desk, and he learned that Christensn was on the line. Abba was sitting in a chair at Palmer's desk during the telephone conver- sation between Palmer and ' Christensen . Christensen in- formed Palmer that a letter had been mailed to Abba and that Abba should be receiving the letter. Palmer told Christensen that Abba had received the letter, and that he and Abba were discussing it. Palmer then asked Abba if he would like to' talk to Christensen, and Abba said yes Abba went into the lunchroom and picked up an- other telephone extension . Palmer remained on the tele- phone line at his desk. Palmer heard Christensen identify himself to Abba as being with the Charging Party Union; that Christensen had signed pledge cards by the employ- 19 The following is based on the credited testimony of Palmer Rhodes overheard only parts of the conversation between Palmer and Abba that day ees to represent them; and asked if Abba would be will- ing to talk with him According to Palmer, Abba asked Christensen in a raised voice who the people were, and what were their names. Christensen told Abba that he had a majority of the people' who signed their pledge cards, but he.would not reveal their names. After the telephone call, Abba told Palmer. "I want everybody to go home, take the rest of the day off." Then Abba rescinded that instruction, and Abba told Palmer take the rest of the day off, go home, and Abba would pay Palmer for that day At the trial, Palmer said that Abba twice asked him who had signed the union. cards, but at' first Palmer did not tell Abba who had signed The second time Palmer was asked on February 22, 1984, Palmer told Abba that everybody had signed union cards. Palmer also. said at the trial that previously he had never been sent home in the-middle of the workday. Rhodes said that Abba told her that day that she was to come in the office early the following Monday "and to write out John's [Palmer's] final check."20 On February 22, 1984, Felton was working in the Em- ployer's warehouse when Abba called him into the lunchroom. No one else was present. Abba asked Felton if he had signed a union card. Felton replied affirmative- ly that he had done'so along with everyone else there who had desired to sign a card. Felton testified- "[H)e said that if I played ball with him , that he was planning on opening another warehouse and that I would be con- ,sidered to be available to manage it for him. "2 i _ Christensen said he did not receive any written reply from the employer. About February 24, 1984, Christen- sen telephoned Abba and asked if Abba had received the Union's letter. Abba said that he had. Christensen asked if Abba was in a position of making any kind of decision at that point. Abba replied that he was not at liberty to talk about the subject and that his lawyer would be get- ting in contact with Christensen However, Christensen said he received no further response, so Christensen con- tacted the Union's attorney with regard to filing the rep- resentation petition.22 As indicated earlier in this deci- sion, the Union did file a petition with the NLRB in Case 20-RC-15726 on February. 24, 1984, seeking to rep- resent the employees of the Employer. On February 27, 1984, Palmer and Abba had a conver- sation at the warehouse about 10 minutes after Palmer began working that- morning.23 Abba - came over to Palmer's desk and told Palmer that Abba was going to let Palmer go. Palmer asked why. Abba replied, "Lack of work." Palmer told Abba that he was in violation of Federal law; that they had filed with the Union for rep- resentation; and that they were protected by the NLRB. Abba replied that if it cost him, $5000, Abba was going to get rid of Palmer. Palmer also testified: "He said that he would never have the union in there." 20 The foregoing paragraph is based on the credited testimony of Rhodes 21 The foregoing is based on the credited testimony of Felton 22 The foregoing is based on the credited testimony of Christensen 23 The following is based on the credited testimony of Palmer Rhodes overheard part of their conversation , MOE WAREHOUSE & ACCESSORY At the trial , Palmer said that the workload was gain- ing and getting heavier at the time. of his termination. He explained that previously he had asked Abba for more personnel, and Abba had said that he was going to get them Also, Palmer said the employer had two new store openings that month .24 Later that afternoon, Abba spoke with Rhodes in the office. No one else was present Abba told Rhodes that he' wanted to know what was going on; that the employ- ees had signed the cards; that he did not want to join the Union, that -he did not want anybody working for him that wanted the Union in' there, and Abba would close the doors before he would go Union.25 About February 27, 1984, after the employees met at the union hall, Felton had another conversation with Abba. During that conversation, Abba told Felton that Abba was against the Union; that Abba had talked with his father about unions; "and that his father said that the best way to deal with them was-to fire all of the people that were involved."26 VI. THE EVENTS IN MARCH 1984 On March 5, 1984, Baker and Abba had a conversation in the lunchroom at the Employer's warehouse.27 The two persons talked about business matters going on at the warehouse, and Abba told -Baker that Abba would have "to either cut crews or close the warehouse" if -a union came in. Baker also testified: "He told me I would have to be the one that would have to go talk to the rest of the crew members to let them know the problems that a union would cause in the business , and what the- things that would happen in case of." Baker said that Abba further told him to tell the other employees that, in order to keep their jobs, they "would have to vote against the union." The same day Baker also spoke with employee Miller. Baker testified "In my words, I just told Steve [Miller] that Mr. Abba was out to get us, and that we'd better watch our backs, you know, because a lot of things are about to come down." - - Rhodes recalled an occasion subsequent to the termi- nation of Palmer when she and Parker were talking about the Union in the office. Rhodes said that Abba came in and mentioned something about the Union, but at first she.could not recall at the trial exactly what was said Subsequently, at the trial she said that Abba told them that he would close down if the- Union came in the , -- warehouse.211 About a week or a week and a half after Palmer was fired, Parker had a conversation with Abba while in Abba's - car and driving towards Auburn, California 29 24 Palmer worked for the Employer from June 1982 until February 27, 1984 Palmer held the position of general manager 25 The foregoing is based on the credited testimony of Rhodes Abba's denial that he'told any employee that Abba would shut down the busi- ness if the Union came in is not credited 26 The foregoing is based on the credited testimony of Felton 27 The following is based on the credited testimony of Baker 26 The foregoing is based on-the credited testimony of Rhodes Park- er's testimony ]ends support to her account 21 The following is based on the credited testimony of Parker, rather than Abba's different version 1137 Parker told Abba that Parker- was trying to play neutral concerning the Union Parker said in past years he had had a hard time keeping a job, so he was playing neutral with the whole thing. According to Parker, Abba re- plied: "Just leave things be and everything will be al- right." On that same date, Parker `received a raise of $100 a month, which also included a change in some of his gasoline allowance. That was Parker's second raise since he had begun working for the Employer on De- cember 21, 1983 He had received his first raise in either January or February 1984. In March 1984, Abba informed Rhodes that she was receiving a raise in her pay, and that Abba would get her medical and dental benefits at the end of April or the beginning of May. Previously, Rhodes had not received such benefits from the employer 30 - On the evening of March 14, 1984, Felton received his paycheck 31 He discovered that the 15-1/2 hours of overtime shown on his paycheck had been paid at the rate of $2.25 an hour, which was one-half of Felton's regular hourly pay rate Felton approached Abba about the matter, but Abba said he was busy, and they could talk about it the next morning 'On March 15, 1984, Felton reported to work at 7 a.m., and he loaded the trucks which were due to go out that day. Afterwards, about 9 a.m. Felton asked Abba in the office about the shortage in his paycheck. Abba told him to talk to Rhodes, who also was present. Felton replied that Rhodes only did what Abba told her to do, and that he wanted his paycheck corrected. Felton testified. "And we argued a little bit more. Finally, he turned to Sharon [Rhodes] and told her to correct my check and tell me to go home." Abba then left the office. As a result, Rhodes corrected the paycheck and gave it to Felton, who looked at it and felt it was all right. Then Felton left. The amount of the paycheck also covered Felton's wages for the day, March 15, 1984. Felton was not given any other document or piece of paper by the employer other than this paycheck ,. Since that time, Felton has not been back to the Em- ployer's warehouse. Felton gave his explanation at the trial as. "Well, he never called me back to come back to work I assumed I was fired." Felton said that there was definitely more-work to be done in.the warehouse on March 15, 1984. Felton said at the trial that previously Abba had never sent him home from work Felton also said that previously Abba had never complained to him about Felton's work, and that Felton had not received any verbal or written warnings from the Employer. Introduced into evidence as Respondent's Exhibit 3 was a copy of the declaration of Sharon Rhodes. (See Tr 233-235.) The statement was given by Rhodes to the attorney for the Respondent at the attorney's office The document is dated June 14, 1984, and it was signed before a notary public. With regard to the conversation between Abba and Felton on March 15, 1984, Rhodes stated in the declaration: 30 The foregoing is based on the credited testimony of Rhodes 31 The following is based on the credited testimony of Felton, rather Abba's version 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about March 15, 1984, I witnessed an argu- ment between Moe Abba and Melvin -Felton at my place of work. The argument was-quite heated and it had to do with overtime which Mr. Felton felt was coming to him and Mr. Abba felt was not Spe- cifically. it had to do with changing over from an hourly employee to a salary employee. No mention of the union was made at .this meeting and -Mr. Felton never came back to work. This was a very heated meeting and was initiated by Mr. Felton. At the trial, Rhodes denied hearing Felton on March 15, 1984, curse Abba; call him certain specific vulgar or obscene names; or make any physical threats against Abba. In her opinion, they were yelling at each other and standing about an inch apart. She said Abba also did not use any curse words in that conversation. The findings of fact regarding the foregoing event are based on the accounts of Felton and Rhodes based on the credibility factors mentioned earlier in this decision. In contrast, Abba related a different version wherein Felton repeatedly called Abba certain vulgar and ob- scene names and treated Abba in an offensive, insulting, and threatening manner. As indicated above, I have credited the accounts of Felton and Rhodes. . Abba held a meeting with the employees in March 1984 at the Employer's warehouse. Present were: Abba, Rhodes, Baker, Miller, Felton, and Parker. 'In the opin- ion of Parker, Abba's comments at the meeting were not directed at either Parker or- Felton because they were new employees. Parker testified: "[H]e said. that if things didn't.-get straightened out, that was it, which wasn't the first time he's done that." Parker stated that Abba did not specifically say what the problems were. The forego- ing is based on the testimony of Parker. Abba gave a sig- nificantly different version of the meeting wherein, in part, he said he specifically gave his last warnings to Baker and Miller, and told them that, if they made a single mistake, it was going to be over for them because his patience had run' out. In Abba's version, Baker and Miller made their next mistake on March 15, 1984, which is memorialized in Respondent's Exhibit 6. That incident will be discussed later. He was asked at the trial why he waited 6 days from March 15 to 21, 1984, to terminate Baker and Miller. Abba unconvincingly stated that it was a very difficult decision for him to make. Based on the credibility factors stated earlier in this decision, I do not credit Abba's version. Introduced into evidence as Respondent's Exhibit 6 was a copy of a typed warning dated March 15, 1984, from Abba to Baker. The document states that-it is re- garding "Shipped a good size order •to Rainbow 'Super- market with Longs Drug ticket Merchandise Manager, Henry, called very upset." Baker acknowledged at -the trial that there had been an error' made on March 15, 1984, in taking merchandise, which had been marked with a Longs Drug-Store price sticker, to the Rainbow Supermarket.32 Baker explained that the error. occurred -at the warehouse. Baker was training two new employees-at the time. In addition, he had six different orders being filled- in the warehouse at the same time. Baker gave the smallest order to- one of the new employees named Jay Baker told. Jay to fill the order, but not to price mark it because the, Employer did not mark the prices on merchandise for that particular store. Jay began filling the order. Baker looked at, the order a couple of times and found some merchandise with Longs Drug Store price 'stickers. Immediately, Baker told Jay to pull those price tags off the merchan- dise and to check it over before he put the order in ship- ping and receiving. . , Baker, Miller, and an employee named Eric delivered the sealed order to the Rainbow Supermarket. When they arrived at the grocery store, they. had the shipping and receiving clerk check the order and the manager, who was named Henry, come over to talk with them. While the order was being checked by the shipping and receiving clerk at the Rainbow Supermarket, Baker no- ticed that there was an item with a Longs Drug Store price sticker on it. When Baker looked in the box of merchandise, he found still more such items with Longs Drug Store price stickers. -Baker became upset, at this, and he said Store Manager Henry did also The next day, Abba spoke to Baker, Miller, and Nagra in the Employer's office. Abba directed his comments to Baker and, complained about the sloppiness in their work. Baker, explained to Abba about the new employee and what had happened. Abba told Baker that they had to tighten this up,_ and that they could not have this kind of thing around there. At the trial, Baker said that similar errors had oc- curred in the, past, but not -often Baker explained that there were about 10 different price markers used at the Employer's warehouse.- Four such price markers were for Longs Drug Store, while other price markers were for other stores or were left blank. Parker did not specify the times, the places, or identify by name with whom he spoke, but- Parker said at- the trial, that store owners or store managers discussed with him poor service by the Employer. 3 a -He said this oc- curred: "Just about everytime I walked into a store unless I was there the day before." Parker said they knew the Employer was "trying to do too much with too little people." Parker was of the opinion that the Employer did not have, any, problems "with the delivery when it finally got there," but the main problem was the frequency 'of -the* deliveries. Parker said that he and Palmer scheduled the deliveries, but Abba "changed them.around." Parker said that the store management people threatened to kick the Respondent out of the store, but they never voiced to Parker any objections or any, problems with any specific employees of the Em- ployer. However, Parker said at the trial that he had problems with Miller and Baker, "when the cooperation wasn't the way I thought it was." Parker later testified: "Don Baker's good, he knows what he's doing, knew what he was doing. Whenever a problem [arose], he 32 The following is based on the credited testimony of Baker 33 The following is based on the credited testimony of Parker MOE WAREHOUSE & ACCESSORY' fixed it. Steve [Miller] on the other hand was young, didn't know what he was doing, was following Don's [Baker's] lead If Don [Baker] had.a bad attitude, Steve [Miller] had a bad attitude." Parker said he did not have to fix Baker's work, but he always had to redo Miller's work. Around March 19 or 20, 1984, Parker and Abba had a conversation regarding Miller and Baker while Parker and Abba were walking outside the Employer's facili- ty.34 Parker testified: "[T]he way I understood it was that he was going to let them go because something had really gone wrong and he's just about had it with them." At the trial, Parker said he knew that "something had gone wrong," but at first he did not remember what it was. Later, Parker said it involved a setup of merchan- dise at a Long Drug Store, which was not done the way Abba had wanted it done. Parker said he did not remem ` ber telling Abba that he could fire Miller and Baker. In the opinion of Parker, Baker was a good employee, and in such a situation, Parker believed that he would never have told Abba'that Abba should fire Baker. Parker said that Abba did complain to him every time Abba returned from looking at a setup of merchandise that Miller and Baker had done. Parker suggested to Abba that he send Parker and Baker out to do the setups and leave Miller in the warehouse. Don Baker worked for the Employer from June 1983 to March 21, 1984. During the period of time between February 27, 1984, when Palmer was terminated, and March 21, 1984, when Baker and Miller were terminated, the Respondent hired three new employees to work in the warehouse Baker trained the new employees in some areas, and Miller trained them in some other areas 35 On March 21, 1984, Abba called Baker and Miller into his -office 36 According to Baker, Abba .told them that they had been having a lot of problems in the 'stores where they had been working. Abba told them that store managers had been complaining about their work. Abba also told them that their workload, their ability, and their attitude about their work were falling down. Abba also said that they did not seem to take pride in their work at all Baker then asked ' Abba how could he possibly let two guys go that practically had built the Company for Abba to the point they had reached at that time. Abba said ' he was going to have to let them go, and he told them that if they needed a job after 4 to 5 months, to come back and see him. At the trial, Baker said he had never been back to the Employer's warehouse since that occasion. Baker serviced the Longs Drug Store at Auburn quite a few times. In the opinion of Baker, the store managers at the store were pleased with his work. Baker said that Abba never warned him about the work Baker had done at the Auburn store of Longs. Once or twice, Baker worked at the Longs Drug Store in Grass Valley. He set up the store once, and he serviced it once. Store managers at Grass Valley did not 34 The following is based on the credited testimony of Parker, rather than Abba's version 35 The foregoing is based on the testimony of Baker 36 The following is based on the credited testimony of Baker, rather than the testimony of Abba and the declaration of Rhodes 1139 complain to Baker regarding his setups. He said the main complaint-was about leaving credits in the back of the store. In the opinion of Baker, there was enough time for him to do the service work that was required at the Grass Valley store. His normal working hours for the. Employer were from 8 a.m. to 5 p in. Baker said that Abba never .warned him about the work which Baker had done at the Grass Valley store of Longs VII. THE EVENTS IN APRIL 1984 In April 1984, prior to the representation election held on April 11, 1984, Parker resigned his position as a sales- man for the Respondent because Parker got another job at a higher rate of pay.37 He said there were no hard feelings at the time his employment with the Employer ended. He said he received no warnings from the Em- ployer during the approximately 4 months that he worked there. Parker had been responsible for servicing the Longs Drug Store in Auburn. Parker said the Re- spondent did not lose the account at that store while he was working for the employer. Parker testified: "Fact is when I was working there, they were happy as pie, they had no problems." However, after Parker had quit his employment with the Employer, he was told that the Longs Drug Store at Auburn had canceled their account with the Employer. On April 10, 1984, there was a conversation that morning in the office between Abba and Rhodes.38 Ac- cording to Rhodes, Abba told-her that he was talking to her as a friend; that he was not threatening her; that he did not want anybody working for him that wanted a union in there; and that Abba would close down before he would -go union. VIII. CONCLUSIONS REGARDING THE ALLEGED UNFAIR LABOR PRACTICES Based on the credited testimony set forth in the find- ings of fact, I conclude from those findings that the Gen- eral Counsel has presented evidence which establishes that the Respondent has' engaged in certain unfair labor practices within the meaning of Section 8(a)(1) of the Act. At the trial, the allegations in paragraph 6(d) and paragraph 7 of the General Counsel's complaint in Case 20-CA-18789 were deleted, and the second paragraph 6(g) was redesignated as paragraph 6(h). All of the 8(a)(1) allegations in both complaints are attributed to Abba as being the Respondent's agent who committed the alleged unfair labor practices. In paragraph 6(a) of the General Counsel's complaint in Case 20-CA-18789, it is alleged: "On or about Febru- ary 22, 1984, interrogated employees regarding their union activities." In paragraph 6(b) of that same com- plaint, it is alleged: "On or about February 22, 1984, made promises of benefit to employees in exchange-for the employees' abandonment of the union." As noted above, all of the allegations pertain to Abba. In considering all of the independent 8(a)(1) allegations, I have considered the fact that the person involved is the 37 The following is based on the credited testimony of Parker 36 The following is based on the credited testimony of Rhodes 1140 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD owner of the Respondent, and not a low-level supervi- sor. Also, I have considered the fact throughout this sec- tion that the number of the Respondent's employees at the times relevant herein was relatively small , With regard to the allegations in paragraphs 6(a) and (b) quoted above, I conclude that the conversation be- tween Abba and Felton revealed that Abba asked Felton if he had signed a union card, and in the same conversa- tion Abba promised Felton that he would be considered for a management position at a warehouse the Employer was planning to open. In its decision in Rossmore House, 269 NLRB 1176 (1984), the Board held that the basic test for evaluation for whether interrogations violate the Act is: "[W]hether under all of the circumstances the in- terrogation reasonably tends to restrain, coerce, or inter- fere with rights guaranteed by the Act." The Board also pointed out at 1178 footnote. 20: "Some factors which, may be considered in analyzing alleged interrogations are: (1) the background; (2) the nature of the information sought; (3) the identity of the questioner; and (4) the place and method of interrogation. See Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964). These and other relevant fac- tors are not to be mechanically applied in,•each case. Rather, they represent some areas of inquiry that may be considered in applying.the Blue Flash test of whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaran- teed by the Act." Under the circumstances presented here, the question- ing of Felton at work. is by the owner,of the Respond- ent, and it occurs in the context of a promise of consider- ation for a management position. The conversation took place in the background of the then-recent signing of union authorization cards by employees. The conversa- tion is not an isolated occurence in the sense that other unfair labor practices were to occur in the following weeks. In view of the foregoing, I find that the Respond- ent has violated Section 8(a)(1) of the,Act as alleged in paragraphs 6(a) and (b). In paragraph 6(c) of the -General Counsel's complaint in Case 20-CA-18789, it is alleged: On or about March 5, 1984, threatened employees with reprisals and dis- charge if they continued their support of the union." I conclude the conversation in the lunchroom at the ware- house on March 5, 1984, between Abba and Baker re- vealed that Abba told Baker that Abba would reduce the crews or--close the warehouse if the Union came in; and that, in order for the employees to keep their jobs, the employees would have to vote against the Union. I con- clude that such threats by the Respondent to an employ- ee in these circumstances violate Section 8(a)(1) of the Act. National Apartment Leasing Co., 263 NLRB - 15 (1982); Crown Cork & Seal Co., 255 NLRB 14 (1981). In paragraph 6(e) of the General -Counsel's complaint in-Case•20-CA-18789, it_is alleged:."On or about-March 9, 1984, 'threatened to discharge employees if they con- tinued organizing -for the union." I conclude 'that the evi- dence disclosed that in a conversation among Abba, Rhodes, and Parker in March 1984-Abba told them that he would close down if the Union came in the ware- house I conclude that such a threat violated Section 8(a)(1) of the Act in these circumstances as described previously. - In paragraph 6(f) of the General Counsel's complaint in Case 20-CA-18789, it is alleged: "On or about March 9, 1984, told employees it was futile to select a union be- cause Respondent would not go union." I conclude this allegation lacks merit and should be dismissed because the evidence does not show that such a statement was made-on or about the date indicated. In paragraph 6(g) of the General Counsel's complaint in Case 20-CA-18789,-it is alleged: "On or about March 21, 1984, conditioned an offer of employment on repudi- ation of support for the union." I conclude this allegation lacks merit and should be dismissed because the evidence does not show that such a statement was made on or about the date indicated. In paragraph 6(h) of the General Counsel's complaint in Case 20-CA-18789, it is alleged: "On unknown dates March 1984, made promises of benefits, and granted wage increases in order to discourage union activity." I conclude that the conversation between . Abba and Parker in March 1984; the conversation between Abba and Rhodes in March 1984; the granting of wage in- creases to Parker and Rhodes; the additional promise of medical and dental benefits to Rhodes; and the timing of granting those benefits show that the Respondent violat- ed Section 8(a)(1) of the Act as alleged. While the Re- spondent earlier had granted wage increases to employ- ees- in January 1984, Abba had said at that -time that the employees would not be getting a raise for awhile. How- ever, the Respondent selectively granted wage-increases to Parker and to Rhodes 2 months later after the em- ployees engaged in union activities and aunion represen- tation petition had been filed with NLRB. Note also that Parker told Abba that Parker was going to be neutral concerning the Union, and Abba promised him that ev- erything was going to be all right. That same day, Parker received the $100-a-month wage increase. In tliese circumstances and considering the other unfair labor practices found herein, I conclude the wage in- creases and the promises were made to- discourage em- ployees' union activities. - .In paragraph -6 of the General Counsel's complaint in Case 20-CA-18902, it is alleged: 6. On or about April 10, 1984, Respondent, acting through-Abba, at Respondent's facility: . (a) Threatened employees with' discharge if they voted for the Union. (b) Threatened to close the facility if the Union won the election. I'conclude that the conversation between Abba and Rhodes on April 10, 1984, revealed that Abba told her that Abba did not want anybody working for him that wanted a union in there, and that Abba would close down before he would go union. As indicated previous- ly, I conclude that such threats tied to employees' pro- tected union activities are violative of Section 8(a)(1) of the Act - MOE WAREHOUSE & ACCESSORY In paragraphs 7(a) and (b) of the General Counsel's complaint in Case 20-CA-18902, it is alleged that.the Respondent discharged Melvin Felton about March 15, 1984, and Donald Baker about March 21, 1984, because of their union activities and protected concerted activi- ties and in order to discourage employees from engaging in such activities. At the trial, the General Counsel delet- ed the name of Steve Miller from paragraph 7(a) Based on the credited findings of fact, I conclude that the General Counsel had presented evidence that the al- leged discriminates, as well-as other employees of the Respondent, had been engaged in union activities prior to their last day of employment with, the Respondent. I further conclude that the Employer had knowledge of the union activities of all of its employees in signing union authorization cards, and that the Employer had knowledge that the Union had filed a representation peti- tion with NLRB and sought to represent the Respond- ent's employees for collective-bargaining purposes. I also conclude that the evidence shows the Respond- ent's animus towards its employees' union activities That hostility is revealed in the unfair labor practices found above to be in violation of Section. 8(a)(1) of the Act Some of those unfair labor practices occurred after the last days of employment of Felton and Baker with the Employer, but I conclude that those unfair labor prac- tices should not be ignored in considering the Respond- ent's hostility to the union organization of its employees. In addition. to the independent 8(a)(1) violations, I have considered three other conversations which oc- curred on February 27, 1984, which are not,alleged to be unfair labor practices, but which, also disclose the Re- spondent's animus toward union activities. In the conver- sation between Abba and Felton on that date, Abba told Felton that he was against unions, and that his father had said the best way to deal with unions was to fire all of the people who were involved. On the same date, Abba told Palmer that Abba would never have a union in the Employer's warehouse. On the same date, Abba told Rhodes that he did not want anybody working for him that wanted the union in the Employer's warehouse, and that Abba would close the. doors before he would go union. I also conclude from the findings of fact that there was an argument regarding overtime pay between Abba and Felton on March 15, 1984. 'As a result of that dispute, Abba and Felton's paycheck corrected and paid up through that date, and sent Felton home Previously, there had been no complaints about Felton's work, and he, had received no verbal or written warnings. After March 15, 1984, the Respondent.did not contact Felton and tell him to return to work In these circumstances, I conclude that Felton did not voluntarily quit his employ- ment, but instead that the Respondent terminated him. Considering the union activities; the employer's knowl- edge of those activities; the Respondent 's animus-all as summarized above-I conclude that the General Counsel has established a prima facie case of discrimination which the Respondent has not rebutted. Wright Line, 251 NLRB 1083 (1980) Therefore, I conclude that the Re- spondent violated Section 8(a)(1) and (3) of the Act by terminating Felton on March 15, 1984 1141 With regard to the termination of Baker on March 21, 1984, I conclude that the General Counsel also has estab- lished a prima facie case under Wright Line. The'employ- ees' union activities, the Employer's knowledge of- such activities, and the Respondent's animus towards union organizational activities already have been summarized above Note that prior to any union activity, recommen- dations had been made, by Abba and by. Palmer to dis- charge Baker, but the Respondent did not terminate Baker at those times. Yet, after union organizational ac- tivities had begun and a union representation petition had been filed, Baker was terminated. Baker was told-by Abba. at the time of his termination' that his workload, ability, and attitude about his work were falling down, and he was showing a lack of pride. Nevertheless, in the same conversation, Abba also told Baker to see him in 4 or-5 months if Baker needed a job. That latter comment by Abba casts doubt on the validity of the reasons assert- ed by Abba.' However, Abba's comment -is just one factor to be considered among many other factors At the trial, Baker explained the circumstances' which led to the warnings Abba had written As to Respond- ent's Exhibit 6, the evidence revealed that Baker was training new employees at that` t ime, and the fault on that occasion really lay 'with one of the new employees. As to Respondent's Exhibit 5, the evidence showed that Baker had advised Abba before working hours began of the necessity to' be absent that day. Later, Baker changed his plans to be absent on February 10, 1984, at the re- quest of Abba. Then,' Baker had obtained Abba's permis- sion to be absent from work on February 13, 1984 As to Respondent's Exhibit 4, Baker acknowleged the store manager's displeasure on that occasion. In view of the foregoing and particularly the Respondent's animosity towards the union organizastional activities of its em- ployees, I conclude that the evidence shows that the rea- sons advanced by Abba are not the true reasons for Baker's termination, but instead that these are pretextual to hide a discriminatory motivation. Wright Line, supra See also Frank Black Mechanical Services, 271 NLRB 1302 fn. 2, (1984); and Beverly Enterprises, 272 NLRB 83 fn. ,2 (1984). Thus, I conclude that the, Respondent has not rebutted the General Counsel's prima facie case with regard to the termination of Baker on March 21, 1984, and that the Respondent violated Section 8(a)(1) and (3) of-the Act by terminating Baker. . In paragraph.13 of the General Counsel's complaint in Case.20-CA-18902, it is alleged: "Since on or about Feb- ruary 22, 1984, Respondent has failed and' refused and continues to fail and refuse to recognize or bargain with the Union as the exclusive collective-bargaining repre- sentative of the Unit.". The General Counsel alleges that the Respondent thereby. violated Section 8(a)(1) and (5) of the Act. - I conclude that an appropriate collective-bargaining unit of the Respondent's employees is one in which the representation election was held on April 11, 1984. That unit has been described earlier herein in the statement of the case. The parties stipulated that the complete work force at the Employer's facility about February 15, 1984, consisted' of Baker, Felton, Miller, Parker, Nagra, and 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rhodes' All six of those employees of the Employer signed union authorization cards. Thus 100 percent of the Employer's employees at that time supported the Union. If Davenport were to be included in the unit as an employee on temporary military leave, the. Union would still have a substantial majority-at that point in time. - Palmer did sign a union authorization card, but I have not counted Palmer because he was a supervisor at the time. I have considered Palmer's participation in union activities to determine whether Palmer's role tainted the Union's authorization cards. Trial Examiner Arthur Leff- succinctly held in Orlando Paper Co., 197 NLRB 380, 387 (1972): The Board has never held that any participation by a supervisor in,a union organizing campaign, re- gardless of how marginal his supervisory status or how slight his participation in the campaign may be, is sufficient per se to- invalidate the authorization cards of all employees having knowledge of his in- terest in the union. Board precedents reflect that the Board will not invalidate designation cards for su- pervisory taint unless it is affirmatively established' as a minimum, either that the participation of the supervisory personnel in the organizational cam- paign was of.such a kind as to have implied to the employees signing the cards that their employer fa- vored the union-, or that there is a reasonable basis for believing that the employees whose ' cards are sought to be invalidated were coercively induced to designate the Union through fear of supervisory re- taliation.3 i 31 See the following cases in which, notwithstanding superviso- ry participation in an organizing campaign , the Board found the evidence insufficient to support a finding of supervisory taint Clay City Beverages, Inc, 176 NLRB 681 Juniata Packing Co, 182 NLRB 934, WKRG-TV, 190 NLRB 174, Aero Corp v NL R B, 149 NLRB. 1283, enfd 363 F 2d 702 (C A D C) And see also Ste- venson Equipment Co, 174 NLRB 865, 866, Turner's Express, Inc 189 NLRB .106 With- the above guidance in mind,' I conclude that Palmer's participation did not taint the Union's authori- zation cards' in the instant case. I note that The desire to contact a union for representation originated with the employees, and not Palmer. Rhodes was the one who specifically'asked Palmer to contact a union. Abba's con- versation with the employees, which already have been summarized in this section, made clear to the employees the Respondent's opposition to union organizational ac- tivities and, thus; dispelled any notion that may have ex- isted that the employees were being coerced by the. Em- ployer into joining the Union. It is noted that no employ- ee testified that he was coerced into signing a union au- thorization card. As has been described earlier herein in the findings of fact, Abba subsequently ' discharged Palmer. - I conclude that the evidence shows that the Union made a demand for recognition and bargaining in the. letter dated February 21, 1984, and which was received on February 22, 1984, by the Respondent. ' (See G.C. Exh. 4.) However, the Respondent did not recognize and bargain with the Union. _ In its decision in J. Coty Messenger Service, 272 NLRB 268 (1984), the Board held:. In determining whether a bargaining order is war- ranted to remedy the Respondent's misconduct in this case, we apply the test set out in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). There, the Court described two types of situations where bar- gaining orders are appropriate: (1) "exceptional" cases marked by "outrageous"- and "pervasive" unfair labor parctices; and (2) "less extraordinary" cases marked by "less pervasive" practices.4 The Court thus approved the Board's use of a bargain- ing order in "less -extraordinary" cases where the employer's unlawful conduct has "tendency to un- dermine [the union's] majority strength and impede the election processes."5 In such cases, the Court indicated that when the Respondent's unfair labor practices are less flagrant and at one time the union had majority support among unit employees, the Board-may consider: . .. the extensiveness of an employer's unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibili- ty of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and the employee sentiment once expressed through cards would, on balance, be better pro- tected by a bargaining order then such an order should issue.6 * Gissel, supra, at 613-614 s Id at 614 e Id at 614-615 • In its decision in Horizon Air Services, 272 NLRB 243 (1984), the Board held: As the judge found, the Respondent engaged in nu- merous unfair labor practices of the type which the Board has long held to be extremely coercive. The Second Circuit Court of Appeals characterized such conduct as "hallmark" violations and held that "their presence will support the issuance of -a bar- gaining order unless some significant mitigating cir- cumstances exist." NLRB Jamaica Towing, 632 F.2d 208 (1980). The court stated that these "hallmark" -violations include such employer misbehavior as the closing of plant or threats of plant closure or loss of employment, the grant- of benefits to employees, or the reassignment, demotion or discharge of union adherents'in violation of Section 8(a)(3) of the Act. In such cases the seriousness of the conduct, cou- pled with the fact that often it represents complete action as distinguished from mere statements, inter- rogations or promises, justifies a finding without ex- tensive explication that is likely to have a lasting in- MOE WAREHOUSE & ACCESSORY l'143 hibitive effect on a substantial percentage 'of the work force." Id. 212-213. With the foregoing guidance from the holdings quoted above in mind , I conclude that the evidence in this case shows that the Respondent has engaged in "less extraor- dinary" actions marked by "less pervasive" unfair labor practices . Nevertheless, I also conclude that some of the Respondent's unfair labor - practices fall into the category described above - as "hallmark" violations . Those unfair labor practices include the discriminatory termination of two employees because of the employees ' union activities in a relatively small unit of employees ; threats made by the owner of the Respondent to reduce the crews or close the warehouse , if the Union came in; a threat by the owner that the employees would have to vote against the Union in order for the employees to keep their jobs; a threat by the owner- that the Employer would close down , if the Union came in; the owner tell- ing an employee that the Employer did not want any- body working for the Employer that wanted a union, and telling the employee that the Employer would close down before the Employer would go union , and the granting of benefits to employees in the circumstances described previously. See also J. & G. Wall Baking Co., 272 NLRB 1008 (1984). In accordance with the decisions referred to above, I conclude that such "hallmark" unfair' labor practices are not likely to be erased by the use of traditional remedies, and-that the use of traditional reme- dies will not ensure that a fair rerun election can be held in such circumstances Therefore, I conclude that the Union's authorization cards reflect an expression of the majority employee sentiment, and that a bargaining order is required here as a remedy and to protect the employ- ees rights to bargain collectively.' IX THE CHALLENGED BALLOTS - As indicated , earlier in the Statement ; of the Case, the ballots' of six persons were challenged at the representa- tion election held on April 11, 1984. Those ballots are determinative of the outcome of the election. In alpha- betical order by their last names, the six persons involved are: Don Baker, Melvin Felton , - Angela Lamb, Steve Miller, John Palmer, and J. William Renfroe. The ballots of Baker and Felton ' were challenged by the NLRB agent because their names were not on the eligibility list' at the election. 39 In light' of the findings and conclusions stated earlier that the Employer termi- nated both Baker and Felton froni'employment in "viola- tion of Section'8(a)(1) and '(3):of, the Act,' I recommend to the Board that the challenges to their ballots be over- ruled and that their ballots be opened and counted. The ballot 'of 'Lamb was challenged by. the "Union on the 'grounds that . she was ' a confidential 'employee. Lamb was employed by the Employer on the day of the'repre- sentation election. She liad worked there for" ipproxi- mately ' 2-1%2 to ' 3 months at that tune . Lamb assisted . t . . r. f . , 39 In the Regional Director's Report on.Objections and Challenged Ballots, order consolidating cases, and notice of hearing, there is a-typo- graphical'error in the spelling of Baker's first name' It should read Don Baker ' - { - , " Rhodes in preparing"Invoices and writing orders. She also helped place merchandise in the stores .40 I conclude 'that the evidence shows -that the challenge to her ballot lacks merit, and that the- evidence affirmatively shows that Lamb was an eligible voter.'Accordingly, I recom- mend to the Board that the challenge to Lamb's ballot be overruled , and that her ballot be opened and counted. The ballot of Miller was challenged by the NLRB agent because Miller's name was not on the eligibility list at the election . The parties stipulated that the challenge to the ballot of Miller was valid and proper ; that- the challenge should be sustained, and that his ballot should not be opened and counted . Accordingly, I so recom- mend to the Board. - ' The ballot of Palmer was challenged by the NLRB agent -because Palmer's name was not on the eligibility list at the election. The parties stipulated that the chal- lenge to the ballot of Palmer should be sustained and that his ballot should not be opened and counted. Ac- cordingly, I so recommend to the Board. The challenge 'to the ballot of Renfroe was made by the Union on the grounds that he was a replacement for an allegedly unlawfully discharged employee. Renfroe was working for the Employer on the day of the repre- sentation election . He had worked as a warehouseman for the Employer for 4 to 4 - 1/2 months at that time.41 I conclude that the evidence shows that the - challenge to Renfroe's ballot lacks merit, and that the evidence af- firmatively shows that he was an eligible voter . Accord- ingly, I recommend to the Board that .the challenge to Renfroe's 'ballot be overruled and that his " ballot be opened and counted. ' X. THE UNION'S OBJECTIONS TO THE ELECTION The Union filed three objections to the conduct of the representation election and to conduct affecting the re- sults of the election. . The. Union's first objection is' "I., After the Petition herein . was filed and just prior to the election, the Em- ployer interrogated ,, coerced and threatened individual employees about the Election and about their votes." I conclude that the evidence shows that the Union's first objection has merit The evidence .and the findings are summarized in section 8 herein , and, therefore„ need not be repeated here . Specifically, . I, conclude , the. evidence regarding the independent 8(a)(1) unfair labor , practices found -with regard to the allegations in. paragraphs 6(c) and (e) of the General Counsel's complaint in Case .20- CA-18798 and the, allegations in,paragraphs 6(a) and (b) of the ' Genera _ l Counsel's complaint ; in Case , 20-CA- 18902 support the. Union 's, objection 1. In, its decision in Life Savers, 264 LRB 1257 (1982), the, Board held: `,`It has long been held that conduct , "violative of Section 8(a)(1) is, a fortiori, conduct which interferes . with ,the, laboratory conditions of .an election . Dal-Tex Optical co';,' 137 NLRB 1782,- 1786 (1962). • , -1, 40 The foregoing is based on the testimony of Abba At Tr 318 and 322, 11 24-25 and 7, respectively, the court reporter is in error in tran- scribing "our case " The reference was to an "R case" as , being a nonad- versary proceeding ' I - •. - •- • 41 The foregoing is based on the.testimony of Abba 1144 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD In addition I find the evidence regarding the conversa- tions between Abba and Palmer; Abba and Rhodes; and Abba and Felton-all of which occurred on February 27, 1984, and are summarized in section 8 herein, also support the Union's objection 1. I also conclude that the evidence regarding the allegations of paragraph 6(a) and (b)L of the General Counsel's, complaint in Case 20-CA- 18789 do not support the Union's objection 1 because that evidence falls outside of the "critical period," i.e., the date the petition was, filed on February 24, 1984, through the election held on April 11, 1984. I also con- clude that the evidence with regard to paragraph 6(h) of _the General Counsel's complaint in Case 20-CA-18789 is not within the scope of Union's objection 1. The Union's second objection is: "After the Petition here was filed'. and just prior to the Election, the Em- ployer dischared employees John Palmer, Steve Miller, Don. Baker, and Melvin Felton for participating in and supporting Petitioner Union's election campaign." I con- clude that the portion of the Union's second objection which pertains to the discharge of Baker and Felton by the Employer has merit because I have found that they were terminated in violation of Section 8(a)(1) and (3) of the Act.-See section 8 herein. The Union's third objection is: "After the Petition herein was filed and prior to the Election, the Employer hired employees for the sole purpose of diluting the Peti- tioner Union's support." I conclude that there is no evi- dence to support this objection and, therefore, I find that the Union's third objection lacks merit. Because I have found that the Union's objection 1 has merit and the Union's objection 2 has merit, in part, as described above, I recommend to the Board that the first election be set aside. I further recommend to the Board that a second election be directed by the Board, if after the opening and 'the counting of the ballots to which challenges- were overruled, the revised tally of ballots discloses that the Union did not receive-a majority of the valid votes cast. The reason I have made the foregoing recommendation regarding a second election is this. Al- though I have found that the Employer violated Section 8(a)(1) and (5) of the Act by its failure and refusal to bar- gain with the Union, as described in section 8 herein, and that a Gissel remedy is appropriate, it may be the Union's desire, if it loses the first election, to proceed to a-second election to "obtain the benefits of a NLRB certification if it were to win a second election. CONCLUSIONS OF LAW 1., The Respondent is an employer. engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, the Union has been the exclusive collective-bargaining representative of the em- ployees of the Respondent in the following appropriate unit' All full-time and regular part-time warehouse , sales, clerical employees, production and maintenance em- ployees employed by the Employer at its Sacramen- to, : California, facility; excluding confidential em- ployees, guards and supervisors as defined by the Act. 4. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by: (a) Questioning an employee as to whether he had signed a union card in the context of promising the em- ployee that he would be considered for a management position at a warehouse the Employer planned to open. (b) Threatening an employee that the Employer would reduce the crews or close the warehouse if the Union came, in, and, in order for the employees to keep their jobs, the employees would have to' vote against the Union. (c) Threatening employees that the Employer would close down, if the Union came in the' warehouse. (d) Making promises of benefits and granting wage in- creases in order to discourage e'mployees' union activi- ties. (e) Telling an employee that the Employer did not want anybody working- for the Employer that wanted a union there, and by telling an employee that the Em- ployer would close down before the Employer would go union. 5. The Respondent has not engaged in the unfair labor practices alleged in paragraphs 6(f) and' (g) of the Gener- al Counsel's complaint in Case 20-CA-18789. 6. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act by terminating Melvin Felton on March 15, 1984, and by terminating Donald Baker bn March 21, 1984, be- cause they had engaged in union activities and protected concerted activities, and in order to discourage employ- ees from engaging in such activities. 7. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (5) of the Act by failing and refusing since about February 22. 1984, -to recognize and bargain collectively with the Union as the representative of the employees of the Em- ployer in the unit described above. 8. The unfair' labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY- Since I have found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend to the Board that the' Respondent be ordered to cease and desist from engaging in such unfair practices. I shall also recommend to the Board that the Respondent be ordered to take certain affirmative action in, order to effectuate the policies of the Act. • Backpay' is to be computed in. accordance with the Board's decision in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest on such backpay to be computed in accordance with the Board's decisions in Isis Plumbing Co., 138 NLRB 716 (1962); Florida Steel, Corp., 231 NLRB 651 (1977), and Olympic Medical Corp., 250 NLRB 146 (1980). MOE WAREHOUSE & ACCESSORY In accordance with the Board 's decision in Sterling Sugars, 261 NLRB 472 (1982), I shall recommended to the Board that an expunction remedy be included in the remedial order On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed42 ORDER The Respondent , Moe Warehouse & Accessory , Sacre- mento; California, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Questioning an employee as to whether he had signed a union card in the context of promising the em- ployee that he would be considered for a management position at a warehouse the Employer planned to open. (b) Threatening an employee that the Employer would reduce the crews or close the warehouse if the Union came in and, in order for the employees to keep their jobs, the employees would have to vote against the Union i (c) Threatening employees that the Employer would close down if the Union came in the warehouse. (d) Making promises of benefits and granting wage in- creases in order to discourage employees' union activi- ties. (e) Telling an employee that the Employer did not want anybody working for the Employer that wanted a union there, and'telling an employee that the Employer would close down before the Employer would go union. (f) Terminating from employment employees because they had engaged in union activities and protected con- certed activities, and in order to discourage employees from engaging in such activities. (g) Failing and refusing to recognize and to bargain collectively with the Union as the representative of the employees of the Employer in the unit described below: All full-time and regular part-time warehouse, sales, clerical employees, production and maintenance em- ployees employed by the Employer at its Sacramen- to, California, facility; excluding confidential em- ployees, guards and supervisors as defined by the Act. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2 Take the following affirmative action which will ef- fectuate the policies of the Act. (a) Recognize and bargain , on request, with the Union as the exclusive collective -bargaining representative of the employees of the Respondent in the unit described above and, if an understanding is reached , embody such understanding in a written agreement. 42 If no exceptions are filed as provided by Sec 102 46 of the Board's Roles and Regulations , the findings , conclusions, and recommended Order shall , as provided in Sec 10148 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 1145 .(b) Offer immediate and full -reinstatement to Melvin Felton and- Don Baker to their former jobs or , if those jobs no longer exist , to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed , and make them whole for any loss of their -earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (c) Remove from its files any reference to the unlawful discharges of Melvin Felton and Don Baker , and notify the employees in writing that ,this has been done and that the discharges will not be used against them in any way. (d) 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. (e)-Post at its facility at Sacremento, California , copies of the attached notice marked "Appendix 9143 Copies of the notice, on forms provided by the . Regional Director for Region 20, after being signed by the Respondent's authorized representative , shall be posted by the Re- spondent 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 Respond- ent to ensure that the -notices are not altered, defaced, or covered by ariy other material. - (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 43 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 Judgment of the United States Court ofAppeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT question an employee as to whether he had signed a union card in the context of promising the -1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee that he would be considered for a management position at a warehouse our Company planned to` open. WE WILL NOT threaten an employee that our Compa- ny would reduce the crews or close the warehouse if the Union came in and,- in order for the employees to keep their jobs, the employees would have to vote 'against the Union. - - WE WILL NOT threaten employees that our Company would close down, if the Union came in the warehouse. WE WILL NOT make promises of benefits and grant wage- increases in order to discourage our employees' union activities. WE WILL NOT tell an employee that our Company did not want anybody working for our Company that wanted a union, and WE WILL NOT tell an employee that our Company would close down before our Company would,go union. WE WILL NOT terminate employees from employment with ourr` Company because the employees had engaged in union activities and protected concerted activities, and in order to discourage our employees from engaging in such activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed to them by the, National Labor Rela- tions Act. WE WILL offer immediate and full reinstatement to Melvin Felton and Don Baker to -their former positions of employment with our Company, without the loss of their seniority or other benefits, but if their former posi- tions of employment no longer exist, WE WILL offer them substantially equivalent positions of employment -with our Company without the loss of their seniority or other benefits. WE WILL make whole Melvin Felton and Don Baker for their monetary losses, including appropriate interest on such money, which has resulted from our termination of them. WE WILL expunge from the Company's files; any refer- ence to the termination of Melvin Felton and Don Baker, and WE WILL notify them, in writing, that this has been done, and that evidence of their termination will not be used as a basis for future personnel act it WE WILL recognize and bargain, on r, test, with Food Process Workers, Warehousemen & Helpers Local 228, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of Amenca, as the exclusive collective-bargaining representative of the employees of our Company in the unit -described below, and WE WILL embody any understanding reached in a signed agreement. This unit is: All full-time and regular part-time warehouse, sales, clerical employees, production and maintenance em- ployees employed by Moe Warehouse & Accessory at its Sacramento, California, facility; excluding confidential employees, guards and supervisors- as defined by the Act. MOE WAREHOUSE & ACCESSORY