Pya/Monarch, Inc.

1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PYA/Monarch, Inc. and Chauffeurs, Teamsters and Helpers Local Union No. 391, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 1.1-CA-11179. and 11-CA- 112151 25 July' 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 19 September 1984 Administrative, Law Judge Philip P. McLeod issued the attached. deci- sion. The Respondent filed exceptions and, a -sup- porting brief. The National Labor Relations-Board has delegat- ed its authority in this proceeding to a three- member panel. - The -Board has considered the decision and the record 'in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions only to. the extent consistent with this Decision and Order. - The judge found that the Respondent PYA/- Monarch discharged. employee Dennis Safrit be- cause of his union activities in violation of Section 8(a)(3) and (1) of the Act.. He also found that the Respondent violated Section 8(a)(1) of the Act on numerous occasions by, inter alia, interrogating em- ployees, restricting prounion employees from com- municating with others, threatening to close the fa- cility. and remove the employees' benefits, soliciting grievances with the implied promise of remedying the grievances, remedying grievances to dissuade employees from' supporting the Union, 'soliciting' employees to talk to other employees to encourage them to vote. against the Union, creating the im- pression that employees' union activities were under surveillance, threatening to discharge and blacklist an employee, with potential future employ- ers, and promising an, employee future advance- ments in return for not supporting the. Union. The - Respondent has excepted to these findings of violations. After -a careful review of the excep- tions and brief, we find that' the' judge's decision is i -On -11. February 1985, the Board issued an Order approving the Union's request to withdraw exceptions, severing Case I1-RC-5177 from Cases lI-CA-11179 and l I-CA-11215, and certifying the results of the election 2i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings - supported-by the record and by the relevant 1aw,3 except with respect to certain findings discussed below. - 1. The relevant facts show that on 17 November 19834 Safrit failed to deliver an order to Edenton Street Methodist' Church because he assumed that it was closed. Since Safrit was late that day, he relied_ on the Company's customer service depart- ment to leave him a message at Wake County El- derly Nutrition Center, another customer stop -en route to the Methodist Church, informing him whether or not the Methodist Church would be open. Safrit never received a message; therefore, he bypassed the Methodist Church and continued to deliver his remaining groceries. After completing his route, Safrit arrived at the warehouse and asked his supervisor, Mike Galloway, if he could leave the premises to' cash his paycheck. According to the record, Safrit was granted permission, but failed to clock out until 1 hour- later. On 22 No- vember, after an investigation, Safrit was terminat- ed for failing to deliver a customer's order and fail- ing to clock out before leaving the Company's premises.. It is undisputed that -Dennis Safrit, an exemplary truckdriver, was one of the leading proponents of the Union's organizational drive. It is also certain that the Respondent's policy is to terminate drivers who fail to deliver their orders unless a supervisor instructs them. otherwise, or the driver determines that a customer's facility is closed. In finding Sa- frit's discharge unlawful, the judge observed that the Respondent dismissed Safrit yet did not disci- pline Doug Sutton, the customer service employee who contributed to the mishap by neglecting to leave the requested message for Safrit at the Nutri- tion Center. The judge also found that previous employee dismissals for violating the Company's policy were distinguishable from the instant case, and that the Respondent seized on this opportunity to rid itself of a union adherent. We agree with the judge that the General Coun- sel has established a prima facie showing that Safrit was unlawfully terminated. We also find, however, that the Respondent has carried its burden of showing that, absent Safrit's union activities, he would have been terminated for failing to deliver a customer's order, and for failing to clock out before leaving the Company's premises. We find that, in discharging Safrit for the reasons given, the Respondent was acting in accord with established 3 In adopting the judge's finding that the Respondent unlawfully re- stricted employee Bowens from communicating with other employees about the Union, we do not rely on the judge's finding that Bowens' de- parture from work schedules had become "accepted" practice 4 All dates are in 1983 unless otherwise noted 275 NLRB No. 167 PYA/MONARCH, INC 1195 company policy. Supervisor Galloway testified that two former employees had been discharged under similar circumstances after they returned their- orders to the warehouse because they had not seen anyone at the customers' premises. Subsequent in- vestigations revealed that the customers' facilities were not closed, and the employees were dis- charged. Thus; the evidence does not establish that Safrit 'was treated disparately, but that he was treated in accord with past practice. The judge also relied on the Respondent's failure to discipline Sutton for failing to perform his duties and contributing to Safrit's nondelivery. Sutton, however, is employed in the customer service de- partment and does not have the same responsibil- ities as a truckdriver. His responsibilities include as- sisting walk-in customers, taking orders from sales- people, and assisting drivers whenever possible. Sutton's job is not similar to Safrit's work, and the Respondent's failure to discipline Sutton is, there- fore, not relevant. Furthermore, management offi- cials testified that the ultimate responsibility for de- livering orders remains with the driver and not the customer service department. Therefore, Sutton's omission did not relieve Safrit of his obligation to deliver the customer's order, or to make certain the customer's facility was closed. Finally, we find, contrary to the judge, that the Respondent's second reason for discharging Safrit is in accord with the Company's policy and past practice. The Respondent's rules and regulations maintain that falsely punching a timecard is 'cause for immediate dismissal. The Respondent intro- duced evidence to show that Safrit was not treated disparately when he was discharged for violating the Company's rules. The evidence shows that em- ployee James Stewart was discharged when he left the premises without punching out, returned, and subsequently clocked out. The circumstances were similar in Safrit's case, he left the premises without punching the timeclock and then, after his return and final departure, he clocked out. Accordingly, we find that the Respondent did not violate Sec- tion 8(a)(3) of the Act by discharging Safrit. We find that the Respondent has sustained its burden of showing that Safrit was dismissed for a legitimate and lawful purpose, and would have been dis- charged even in the absence of his union activity.5 2. Contrary to the judge, we find that the Re- spondent did not violate Section 8(a)(1) when it promised to solve the Company's production-relat- ed problems and distributed new equipment to em- ployees approximately 1 month before schedule. The judge found a violation on the ground that the Respondent promised and in fact granted the em- ployees a benefit during the union campaign. The facts show that on 1 December, during the union campaign, Vice President of Operations Robert Schauer and Senior Vice President of Human Resources Ed McFarland held meetings with both day- and night-shift employees for the purpose of discussing problems contributing to the facility's low productivity. 'Schauer testified that he asked employees if they had "problems that were impeding production." In direct response to Schauer's question, the employees expressed vari- ous complaints including their need for new batter- ies, pallet jacks, uniforms, boots, and mittens. Al- though, the officials took notes regarding all prob- lems discussed, they specifically- told employees they could not promise or guarantee anything re- garding individual complaints which were dis- cussed. Schauer promised only to attempt to solve production problems,. such as the employees' need for new equipment. Shortly after this meeting, some employees received new equipment. We find merit - in the Respondent's contention that Schauer's promise to employees to try to solve the employees' production-related problems, and thereafter delivering new batteries, pallet jacks, and uniforms, was not in violation of the Act. Schauer's credited testimony shows that the Respondent de- cided to give the employees new equipment months before the organizational campaign com- menced. For example, he' testified that batteries. were on order since August, pallet jacks were available with a vendor company, and at least one jack had been delivered in early September, and there was an open purchase order for protective clothing which had not yet been received. Most of this equipment was scheduled to arrive in January. We find that the planning for this new equipment was well underway and its delivery was merely the continuation of a prior normal business decision." Therefore, the Respondent did not unlawfully promise to, and thereafter unlawfully, remedy the employees' grievances.7 3. We also agree with the Respondent that Re- gional Vice President Charles Wright did not un- lawfully solicit grievances when he told.employees that the Respondent's door was always open to hear any complaints. We find, as the Respondent contends, that an open-door policy was the Re- spondent's practice prior to the outset of the Union's organizational drive. Employee Charles Lanston testified that in previous years he had s Walnut Creek Hospital, 208 NLRB 656 (1974) - For the reasons the judge stated, Member Dennis would find that the 6 For the reasons the judge stated, Member Dennis would find that Sa - Respondent violated the Act by unlawfully promising to remedy, and fret's discharge violated Sec 8(a)(3) and (1) of the Act thereafter remedying, employees' grievances 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gone to Wright to talk about problems which con- cerned him, and he knew he could talk to manage- ment officials on his own initiative. The-Board has found that it is not an unlawful solicitation of grievances merely to remind employees of an exist- ing open-door policy if there is no implication that the response to grievances will change. Butler Shoes New York, 263 NLRB 1031, 1032 (1982). We conclude, therefore, that the Respondent 'did not violate the Act by unlawfully soliciting grievances, in this instance. Accordingly, we shall dismiss this allegation of the complaint.8 " 4. Contrary to the judge, we do not -find that Operations Manager Ira Bass unlawfully interrogat- ed employee Michael Boswell during a casual con- versation when Bass asked Boswell,`"What do you think about what's going on ou't here?" We find that Boswell was an open union' supporter: He wore union T-shirts, attended union meetings, and spoke out in favor of the Union in the plant. Fur- thermore, we find -that Bass' question was not in- herently coercive. It occurred in-a casual conversa- tion between Bass and Boswell after work by the .timeclock. We, therefore, find that this innocuous questioning of an open union supporter is not viola- tive,of Section 8(a)(1). Rossmore House, 269 NLRB 1176 (1984).9 5. The Respondent excepts.to the judge's finding that it created the impression that its employees' union activities were under surveillance when Gen- eral Manager Ralph Buff told Boswell that he knew Boswell had been engaged in union activities and then told - employee Phillip Morris that Buff knew Morris was against the Union . We find that because Boswell openly campaigned for the Union, as-' noted above, Buffs acknowledgment of Bos- well's open ' union activities did not. unlawfully create the impression that his activities were under surveillance. 10 6. There is not sufficient evidence, however; to show 'that Morris' union sentiments were well known. In fact, there is evidence in the record that Morris supported the Union and was not against it. Therefore, • we agree with the judge that Buffs statement -to Morris created the impression that the Respondent was watching the employees' union ac- 8 For the reasons the judge stated, Member Dennis would find that the Respondent violated Sec 8(a)(1) by unlawfully soliciting grievances' '9 Member Derims finds it unnecessary to pass on this allegation be- cause the finding of an additional interrogation violation would not affect the Order 10 Owens-Illinois Plastic Products, 265 NLRB 931, 934 (1982) Member Dennis finds it unnecessary to pass'on the allegation of creating the im- pression of surveillance with respect to Boswell because the finding of such an additional violation would not affect the Order tivities, and thereby violated Section 8(a)(1) of the Act. i t 7. We agree with - the judge that Respondent General Manager Ralph Buff unlawfully solicited employee Lee to encourage other employees to vote against the Union. Although it is true that Lee went to -Buffs office on his own- initiative to talk about the Union, Lee did not initiate a discussion on campaigning for the Employer. Nor did he vol- unteer to so campaign. Instead, Lee told Buff he had ."mixed" feelings about the Union and was "confused." When Buff then told Lee he wanted Lee to tell other employees to vote against the Union, Lee agreed to do so. This response to an employee's expression of mixed feelings about the Union is not mere encouragement to exercise the statutory right to oppose unionization. Nor is it simply the expression of opinion and dissemination of views permitted by Section 8(c). Rather, it is an attempt to change the-employee's feelings -and re- cruit him to the Employer's campaign against the Union. Accordingly, we find that, by Buffs solici- tation of Lee, the Respondent interfered, with and restrained its -employees in the exercise of their Section 7 rights. i 2 i i Chairman Dotson would also dismiss the complaint allegation that Buff created an impression that the Respondent was watching employees' union activities by statements to employee Phillip Morris Chairman Dotson would find the record insufficient to support a finding that Morris could reasonably assume from Buffs comments that the employ- ees' union activities had been placed under illegal surveillance - i2 Chairman Dotson would not find that the Respondent violated the Act by such actions In December 1983 employee David Lee on his own initiative went to General Manager Ralph Buffs office to speak to Buff about the union campaign Lee informed Buff he had "mixed" feelings about the union campaign and was "confused " Buff advised Lee that the Respondent opposed the Union During their conversation Buff urged Lee to ask other employees to side with the'Respondent Lee agreed to do so - In short, -a factual scenario is presented where an employee voluntarily expressed a desire to discuss unionization with management and manage- ment in turn encouraged that employee to exercise his statutory right to oppose unionization unaccompanied by any promise of benefit or threat of reprisal The Chairman's colleagues find that notwithstanding employee Lee's initiation of the discussion regarding unionization Buff coerced Lee when he attempted "to change the employee's feelings and recruit him to the Employer's campaign against the 'Union " In the view of- Chairman Dotson, when an employee affirmatively seeks out management during an organizing campaign to talk about the union and then expresses "mixed" feelings and "confusion" about the union , an employer is square- ly privileged by Sec 8(c) to inform the inquiring employee that manage- ment opposes the union In this context, once the employer has lawfully expressed its view regarding unionization it is not coercive to ask a re- ceptive employee, as was Lee, to urge other employees to side with the employer - Asking an employee to convey an employer's opposition to unioniza- tion, standing alone, is not per se violative of the Act See Admiral Semmes Hotel, 164 NLRB 482, 485 fn 1 (1967) Here, employee Lee ef- fectively asked General Manager Buff to enlighten and clarify his "mixed" feelings and "confusion" regarding unionization The majority unjustifiably restricts the Respondent's ability to address a legitimate in- quiry from an employee when it prohibits the Respondent from seeking "to change the employee's [mixed] feelings'' Lee admittedly was "con- fused " He affirmatively sought management's assistance In this context, Continued PYA/MONARCH, INC 1197 AMENDED CONCLUSIONS OF LAW Delete Conclusions of Law 5 and 11, and substi- tute the following for Conclusion of Law 7, and re- number accordingly. "7. During the first week of December 1983, the Respondent interrogated an employee about his union sentiments and beliefs." ORDER The National Labor' Relations Board orders that the Respondent, PYA/Monarch, Inc., Raleigh, North Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Restricting employees whom it knows to be prounion from communicating with other employ- ees. (b) Threatening employees that if they choose the Union as their collective-bargaining agent bene- fits can be taken away or the warehouse could be closed. (c) Threatening to discharge employees and to blacklist employees with future employers in order to dissuade them from supporting the Union.' (d) Interrogating employees about their ' union sentiments and desires. (e) Soliciting employees to talk to other employ- ees on the Respondent's behalf and encouraging them to vote against union representation. (f) Promising employees future advancements and promotions in return ' for not supporting the Union. (g) Creating the impression among employees that their union activities are under surveillance. (h) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. _ 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its facility located in Raleigh, North Carolina, copies of the attached notice marked "Appendix." 13 Copies of the notice, on forms pro- when Lee appeared receptive to the Respondent's message, it was entire- ly proper under Sec 8(c)'to ask Lee to "spread the word " Indeed, it is the very essence of Sec 8(c) that an employer may disseminate views and opinions regarding unionization Restricting 'an employer from urging a receptive employee to actively support its campaign effort when that em- ployee has come forward to discuss unionization is incompatible with the basic tehets of Sec 8(c) ' Under the circumstances of the Buff-Lee discussion there is no mean- ingful distinction between Buffs noncoercive comments toward Lee re- garding unionization and an employer's noncoercive campaign expression to employees seeking their support against unionization See, e g , Sherd- ton Plaza La Reina Hotel, 269 NLRB-716 (1984) Accordingly, Chairman Dotson would dismiss this allegation is 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 vided by the Regional Director for Region 11, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices-to employees are custom- arily posted. Reasonable' steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED' that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. of the United States Court of Appeals 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 ordered us to post and abide by this notice. WE WILL NOT restrict you from communicating with other employees because you are known to be prounion. WE WILL NOT threaten, you with closure of our warehouse or loss of benefits if you select the Union as your bargaining representative. . WE WILL NOT threaten you with discharge or to blacklist you with future employers because you supported the Union. WE WILL 'NOT interrogate you regarding your union sentiments. - WE WILL NOT solicit you to talk to other em- ployees on our behalf and to encourage them to -vote against union representation. WE WILL NOT promise you future advancements and promotions for not supporting the Union. WE WILL NOT create the impression among you that your union activities are under surveillance. 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.' ' _ . I PYA/MONARCH, INC. 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION - FINDINGS OF FACT STATEMENT OF THE CASE I JURISDICTION PHILIP P. MCLEOD, Administrative Law Judge. This case-was heard by me on,May 21, 22, and 23, 1984, in Raleigh, North Carolina. It originated from a petition for an election filed in Case 11-RC-5177 on November 10, 1983, by Chauffeurs, Teamsters, and Helpers Local Union No. 391, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) seeking to represent cer- tain employees of PYA/Monarch, Inc. (the Employer or Respondent). On December 22, 1983, an election was conducted to determine whether employees of the Em- ployer wished to be represented for purposes of collec- tive bargaining by the Union. Of the approximately 85 eligible voters in that election, 33 cast votes for the Union, while 46 cast votes against the Union; there were 5 challenged ballots, which were not sufficient in number to be determinative of the election. On December 29, the Union filed timely objections to conduct affecting the results of the election. On that same date, the Union filed the charge in Case 11-CA- 11179, which-was subsequently amended on January 6 and February 6, 1984. On February 2, 1984, the Union filed the charge in Case 11-CA-11215. That charge was subsequently amended on February 6 and 16 and March 20, 19 84. On February 6, 1984, a complaint and notice of hear- ing issued in Case 11-CA-11179. On February 10, 1984, a Report on Objections issued in Case 11-RC-5177 which also consolidated the two cases for hearing. Ac- cordingly, the issues raised by the Union's objections to the election are now before me for determination based on the record herein. On March 20, 1984, an order consolidating cases, con- solidated complaint, and notice of hearing issued, further consolidating Cases 11-CA-11179 and 11-CA-11215 and alleging, inter alia, that Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act), by various acts and conduct. In its answer to the consolidated complaint, Respond- ent admitted certain allegations including the filing and serving of the charge, its status as an employer within the meaning of the Act, the status of the Union as a labor organization within the meaning of the Act, and the status of various individuals as supervisors and agents- of the Employer within the meaning of Section 2(11) of the Act. Respondent denied having engaged in any, con- duct which would constitute an unfair labor practice within the meaning of the Act. At the trial all parties were represented and afforded full opportunity to be heard, to examine and cross-exam- ine-witnesses, and to introduce evidence. Following the close of the trial, counsels for ,the General Counsel and Respondent filed timely briefs with me which have been duly considered. On the entire record in this case and from my observa- tion of the witnesses, I make the following PYA/Monarch, Inc., a Delaware corporation, is locat- ed in Raleigh, North Carolina, where it is engaged in the wholesale sale and distribution of food items and related products. Respondent annually receives goods and mate- rials from points directly outside the State of North Carolina valued in excess of $50,000. It also annually sells and ships products to points directly outside the State of North Carolina valued in excess of $50,000 Respondent is, and has been at all times material, an employer engaged in commerce "within the meaning of Section 2(6) and (7) of the Act. Ii. LABOR ORGANIZATION Chauffeurs, Teamsters and Helpers Local Union No. 391, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Union began its organizing campaign among em- ployees of PYA/Monarch, Inc..in November 1983. Re- spondent first learned that the Union was attempting to organize employees in a letter received from the Union on November 7 i On November 9, employee Navil Bowens wore a T- shirt to work which contained the Teamsters insignia. Bo'\vens testified that he walked into the canteen and was immediately approached by Operations Manager Ira Bass who told Bowens to come to Bass' office. Bowens testis feed-that in Bass' office, Bass told Bowens, "I don't want you to talk to these truckdrivers when you come in. When you come in you go on upstairs and don't come down until after 8 o'clock " Bowens, a janitor, is respon- sible for various duties on the main floor where the can- teen is located as well as on the floor above where of- fices are located. Bowens testified that employees tend to congregate in and around the canteen on the first floor before going to work and a few, if any, employees are to be found in the area of the upstairs offices before 8 o'clock. - Bowens further testified that prior to this conversation with Bass, Bowens' work routine had been left entirely up to his own discretion. Respondent admits that al- though Bowens has been given work schedules to follow at various times in the past, he has rarely followed them. As Respondent concedes, Bowens has long had a tenden- cy to do things as he pleases, and I conclude this had become the accepted practice. Bass testified that he has verbally warned Bowens in the past for failing to follow set schedules, one of which allegedly is that Bowens is to clean upstairs offices before 8 a.m. when office personnel arrive. I doubt this. Whether or not it is true, however, I All dates refer to November and December 1983, unless otherwise indicated PYA/MONARCH, INC 1199 Bass denied he ever told Bowens to work upstairs and not come down until after 8 a.m According to Bass, when he saw Bowens in the canteen on the morning of November 9, he specifically avoided talking to Bowens because he did not know how to handle the fact that Bowens was wearing a union T-shirt I credit Bowens' version of this incident over Bass. Bass admitted that he did not want Bowens walking around the warehouse wearing the union T-shirt. More significantly, Bass ad- mitted that he was "infuriated" when he -saw Bowens• wearing this shirt. I found Bowens to be very credible, and his demeanor left no doubt in my mind that he was telling the truth. On the other hand, Bass' denial of this and other incidents described below was unconvincing. Accordingly, I credit Bowens, and I find that Bass di- rected Bowens to remain upstairs until after 8 a.m and not to talk to the truckdrivers when he came into work in order to minimize Bowens' contact with other em- ployees. On November 10, the Union filed its petition with the Board in Case •11-RC-5177. Also on November 10, Re- spondent received a letter from the Union which named employees Robert Ellington, Jerry Mozingo, Dennis Safrit, Jesse Sapp, and James Stewart as actively partici- pating in the organizational campaign on behalf of the Union B. Events During the "Critical Period" On November 10, Respondent conducted the first in a series of meetings it held with groups of employees during which the Union was discussed. On November 10, two meetings were held, one for truckdrivers and daytime warehouse employees, and a second for night warehouse employees. In both of these meetings, Re- spondent aired an antiunion movie. Following the movie, , General Manager Ralph Buff addressed the assembled employees. Dennis Safrit testified that-at the first of these two meetings, Buff stated that employees did not need a union at PYA. Safrit also testified Buff told employees that if they became union, benefits could be taken away and the warehouse could even be closed. Employee Phil- lip Morris testified that in the meeting with night ware- house employees Buff told employees that Respondent had received a letter from the Union telling them that it was trying to organize employees. According to Morris, Buff stated that Respondent was against unions, did not recognize the Teamsters Union, and would use all legal means possible and unlimited financial support to keep the Union out. According to Morris, Buff also stated that he did not see any need for a union at PYA, that em- ployees had good benefits, and -that the Company gave benefits and could take them away. Respondent attempt- ed to impeach Morris based on the fact that this last statement is not contained in the affidavit which he gave to a Board agent while- this case was being investigated. Morris, however, struck me as being very credible, making every effort to tell the truth exactly as it oc- curred. For example, it was Morris who candidly admit- ted that Buff told employees Respondent would use all "legal" means possible to defeat the Union. Employee Robert Ellington, who attended the same meeting as Morris, also testified Buff told employees that Respond- ent gave benefits and could take them away . - Buff denied that benefits were discussed in any respect at the meetings with employees on November 10 Buff admits that he told employees Respondent did not see any need for a union and did not believe that a union could help employees. Buff also admits that he told em- ployees Respondent was opposed to the Union and would do everything legally possible to keep the Union out. I do not credit Buff's denials of the statements attrib- uted to him by employees Safrit, Morris, and Ellington. As I have already indicated, Morris impressed me as tell- ing the truth. Safrit and Ellington also impressed me as being very believable. This may not be said of Buff, who gave me the distinct impression that he thought he was engaged in a cameo performance in which his sole inter- est was to act or appear credible. I credit Safrit that in the first meeting with employees on November 10, Buff told employees, inter alia, that as a result of unionization employee benefits could be taken away and the ware- house could be closed. Further, I conclude that in the meeting Buff had with night warehouse employees Buff told the employees, inter alia, that Respondent was against the Union, that Respondent would use all legal means possible to keep the Union out, and that Respond- ent gave benefits to employees and it could take them away. I agree with Respondent that Buff's statement that Respondent would use all legal means possible to keep the Union out is not a violation of the Act The state- ments by Buff that as a result of unionization employee benefits could be taken away and that the warehouse could be closed, however, are clear threats of reprisal di- rected at employees for engaging in protected concerted activity, and constitute violations of Section 8(a)(1) of the Act. Robert Ellington was one of the employees named in the letter received by Respondent from the Union on November 10. A few days after Respondent received this letter, Ellington was standing in a hallway outside the canteen talking with a daytime employee. Ellington was' dust coming off work while the other employee was about to begin work. Various other employees were also in the hallway as they were coming off or were about to- begin their shift. Ellington testified that, as he spoke to the other- employee, Operations Manager Bass ap- proached him and stated that Ellington was not to speak with any of the daytime employees and that Ellington should "get back into the breakroom." Bass testified he told Ellington that if Ellington had punched out and needed to wait for a ride that Ellington should wait inside the canteen. Bass denied telling Ellington not to talk to other employees I credit Ellington's version of this incident. Further, I note Bass acknowledged that he' did not tell any other employees in the hallway to stop talking or to go back inside the canteen. I conclude, as the General Counsel argues, that Bass' statement to Ellington, like Bass' statements to employee Navil Bowens on November 9, was the result of an effort on Bass' part to restrict those employees whom he knew to be prounion from communicating with other employees. 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Michael Boswell testified that in mid-No- vember he had a conversation with Supervisor Julius Montague in which Montague told him to keep his union activities quiet because Bass and Buff "were starting to crack down on writing up people for the least little thing." According to Boswell, this statement by Monta- gue was made during a conversation in Montague's office which Montague himself initiated on the second occasion,that Boswell wore a union T-shirt to work. Montague's testimony concerning this conversation is substantially different from that of Boswell. According to Montague, it was Boswell who initiated the conversa- tion. Montague explained that the starting time for Bos- well's shift had been changed from 7.30 to 6.30 p in., and that Montague telephoned Boswell's house to leave word of the change When Boswell telephoned Montague later that evening, he told Montague he had car trouble and could not make it to work The next day Boswell initiat- ed the conversation in question with Montague to ex- plain that he had lied about car trouble and not being able to get into work. Boswell apologized for lying. Montague told Boswell that he needed Boswell to work every night, and that Boswell should avoid such situa- tions in the future. According to Montague, Boswell then asked Montague how he felt about unions . Accord- ing to Montague, he told Boswell that he had worked in both union and nonunion shops, and it did not matter either way to him Montague then told Boswell that if Boswell was concerned about getting into trouble, he should avoid situations such as his actions the previous night. According to Montague, Boswell apologized for' his actions and promised it • would not happen again. Montague denied telling Boswell not to advertise his union activities . Montague also denied telling Boswell that Buff and Bass were "cracking down" on employees I credit Montague regarding this conversation. Monta- gue's testimony regarding this conversation is far more detailed than that of Boswell I note too that Boswell ad- mitted during his testimony that Montague told him Montague did not care whether or not there was a union at Respondent's facility. I find nothing in Montague's re- marks to Boswell which would convey a threat Rather, while Montague undoubtedly had grounds then and there to discipline Boswell, Montague chose instead to simply convey more friendly advice that Boswell would do well to avoid compromising situations in the future which might lead to greater problems Accordingly, I shall dismiss that allegation in the complaint. - On November 22 employee Dennis Safrit was dis- charged. The circumstances which led to his discharge warrant considerable individual attention and discussion, and are therefore treated separately below. On December 1, Vice President of Operations Robert Schauer and Senior Vice President of Human Resources Ed McFarland held a series of meetings with employees from different shifts. Employees Robert Ellington, Phil- lip Morris, Michael Boswell, and James Stewart all testi- fied that in these meetings Schauer and McFarland asked employees what problems they were having with man- agement and what management might do to solve these problems Employees then expressed numerous minor grievances and problems they were experiencing on the job, including a need for batteries, pallet jacks, uniforms, and mittens worn while working in the freezer. McFar- land and Schauer took notes regarding these employee complaints. According to the employees' testimony, Schauer promised to do what he could to improve the situation. Shortly after the meeting Respondent began to resolve the employee complaints with the arrival of new equipment and new protective clothing. - Schauer and McFarland were both very candid, straightforward witnesses, and their testimony is not sub- stantially different from that of employees regarding this series of -meetings on December 1.' According to Schauer, he began the meetings by apologizing for a delay which had occurred in construction of a. freezer and then proceeded to ask employees if they had any questions about Respondent's incentive pay system. Schauer admits he then told employees that if they had any problems which were impeding production, he wanted to hear about them Schauer testified he told em- ployees he could not promise or guarantee anything. Schauer admits, however, he also told employees that "if there were things that we could do to resolve some of these problems that were . impeding production, we would do it." It was then that employees expressed vari- ous complaints, . including the need- for batteries used in pallet jacks, pallet jacks, more uniforms, boots, and mit- tens used in the freezer The record confirms that within a few days after these meetings new equipment and pro- tective clothing were provided for employees. Respondent argues that the Union was never men- tioned in any of these-meetings, which may indeed be the case. Nevertheless, the fact remains that Respondent conducted these meetings with employees at a time when it knew an active union campaign was ongoing Re- spondent next argues that complaints were not solicited from employees - but rather that employees volunteered these complaints and concerns. This argument is belied by Schauer's own testimony in which he admits that he asked employees if they had "problems that were imped- ing production " Respondent next argues that it did not make any offer of benefits or promise to remedy com- plaints because Schauer expressly told employees that he could not promise or guarantee anything This argument, however, overlooks the fact that Schauer also told em- ployees "if there were things that we could do to resolve some of these problems that were impeding production, we would do it." I find this to be an express promise which negates Schauer's earlier remark that he could not' promise anything. Respondent argues that its actions in providing em- ployees with new equipment and protective. clothing within a few days of the December 1 meeting with em- ployees was entirely lawful because some of those items were already on order and because the others were in fact needed., Respondent overlooks the fact, however, that even though orders for certain items may have been placed before the union campaign began, Schauer took action to expedite delivery of the various items in re- sponse to employees' grievances which it chose to solicit from employees in the midst of a union organizing cam- paign Schauer admitted, for example, that- batteries PYA/MONARCH, INC which employees complained about had been on order since August 8. The batteries were not to be available for delivery until January 1984. As a result, Schauer took action to bring in replacement batteries from another supplier immediately. Moreover, I note that prior to the advent of the union campaign, neither Schauer nor other company officials had ever held meetings with employ- ees during which they solicited complaints or sugges- tions. While Schauer stated that the reason for his meet- ing with employees was a problem of declining produc- tivity, Schauer also admitted that the trip was not planned until after Schauer learned that union organizing activity was going on at the Raleigh facility. Moreover, I note that although productivity may have declined slightly immediately -prior to Schauer's meetings with employees, the lessened productivity, was nevertheless greater than productivity in other periods during the ear- lier fiscal year. Nevertheless, Schauer had never had a similar meeting with employees before the advent of union activity. Based on the credited testimony of em- ployees, as well as the testimony of Schauer and McFar- land, I conclude that in these meetings with employees Respondent solicited grievances from employees, prom- ised employees that the grievances would be remedied, and in fact remedied employees' grievances in order to dissuade employees from supporting the Union Cutting, Inc, 255 NLRB 534 (1981), Stride Rite Corp., 228 NLRB 224 (1977). In early. December, Operations Manager Bass asked employee, James Stewart to come to his office. Stewart testified that Bass told him a union was not needed at PYA/Monarch and that the "Union can't get you any- thing because what you get here comes from corporate." Stewart also testified that Bass discussed strikes, picket lines, and the effect that they might have on him person- ally. According to Stewart, Bass stated during this con- versation, "How would it be if you were out on the picket line'. . [and then] you were to leave here look- ing for another job, and your other job called back for a reference, and we told them that you were a union orga- nizer " Bass admitted that he called Stewart to his office specifically in order to talk to Stewart about "this union activity." Bass admits he told Stewart he saw no need for a union. According to Bass, he also told Stewart of several strikes he had witnessed in New London, Con- necticut, when he was stationed there in the Navy. Bass told Stewart that some of his friends got into debt during those strikes and lost their homes. According to Bass, he implored Stewart to talk the union situation over with his family and do what was best for them. Bass denied discussing picket lines and the impact that Stewart's union activity might have on his ability to find another job. I credit Stewart About 2 weeks before the election held on December 22, Operations Manager Bass approached employee Bos- well at the timeclock. Boswell testified that Bass began a casual conversation, during which Bass asked Boswell, "What do you think about what's going on out here?" Boswell replied, "I don't know what to think about it." Bass then said, "This Union you are all trying to get in here, I just don't see any use in it. I've never seen any good come out of a Union." According to Boswell, Bass 1201 added that he would be all for the Union if he thought it would do any good, but he just did not see any reason for it. The conversation -ended. Bass testified that he could not recall this conversation with Boswell, but he did not deny that it occurred. Bass conceded, in fact, that it was possible he spoke to Boswell about the Union I credit Boswell. Respondent argues that even if Bass interrogated Bos- well on this occasion, it should not be found to be un- lawful because Boswell was an active and vocal support- er of the Union within the meaning of the Board's recent decision in Rossmore House, 269 NLRB 1176 (1984). Bos- well's testimony reflects, however, that he did little more than wear a union T-shirt to work and engage in a casual conversation about the Union with a fellow employee Boswell was not one of the employee activists named in the Union's letter to Respondent Nor did he distribute union authorization cards or other union literature or materials to fellow employees. Based on the above and the circumstances of the conversation, I find that Bass did .unlawfully interrogate Boswell The fact that Bass' interrogation occurred during a casual conversation initi- ated by Bass would not change the result I have reached. It, is in such "casual conversations" that an employee may be most effectively interrogated by being encour- aged to reveal his own personal beliefs. This appears to have been particularly true in this instance. As is dis- cussed in. detail below, Plant Manager Buff made a spe- cial trip to the warehouse during the night shift on the day before the election specifically to make a last minute campaign pitch to two employees, one of whom was Boswell. Considering all the circumstances, therefore, I conclude that both the purpose and the effect of Bass questioning Boswell were to unlawfully interrogate Bos- well about his union sentiments. During the first week of December, General Manager Buff called employee Frederick Young to the warehouse office where Buff spoke to him about the Union. Buff began the conversation by expressing condolences on the recent death of Young's father. Buff apologized that Re- spondent had not sent flowers, but explained that Re- spondent had not been able to determine to which funer- al home Young's father had been taken. Young testified Buff then stated he wanted to ask Young if anyone had said anything to him about the Union, but that he could not ask Young that question. Buff then said that he wanted to know how other employees felt about the Union, but that he could not ask that Buff then stated that he wanted to know how Young felt about the Union, but that he could not ask that either. Buff then said, "But anything you have to say, I can listen to." Young replied that he had not worked for Respondent long enough to really participate in the Union and that his opinion did not count. Young said he did not think he was a permanent employee because he had not fin- ished the 90-day probationary period. Young testified that Buff then told him that he was a permanent employ- ee,2 that Young's vote would count, and that Young had 2 Respondent in fact had a flexible probationary period from 60 to 90 days Young had worked more than 60 but less than 90 days 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a job with Respondent as long as he wanted it. Buffs testimony is not substantially different from Young's in most respects. Buff denied, however, posing and then withdrawing questions to Young about the Union. Buff denied, too, promising Young that he had a job with Re- spondent as long as he wanted it. I credit Young who, unlike Buff, impressed me as a truthful witness. I reject the argument by Respondent that Buff did not interro- gate Young but merely explained that while he was not permitted to ask Young any questions, he could listen if Young had anything he wanted to say. Respondent con- tends that Buffs comment did not necessarily seek to elicit information concerning Young's union sympathies. On the contrary, Buffs would-be disguise of his interro- gation of Young is wholly transparent. The sole purpose of Buffs approach was to elicit from Young what it was Buff admitted he wanted to know but could not ask Young directly. I find that Buff unlawfully interrogated Young in violation of Section 8(a)(1) of the Act. I do not agree with the General Counsel, however, that in the course of this conversation Buff effectively changed Young's status from that of a probationary employee to that of a permanent employee, thereby granting Young some benefit in order to discourage Young from support- ing the Union. In essence, Buff simply assured Young that his vote would count Probationary employees are generally eligible to vote if their duties and working con- ditions are substantially the same as those of regular em- ployees and they have reasonable expectation of perma- nent employment. Vogue Art Ware & China Co., 129 NLRB 1253 (1961); Beattie Mfg. - Co., - 77 NLRB 361 (1948). Accordingly, I reject the General Counsel's argu- ment that in the course of this conversation Respondent granted Young a benefit in order to dissuade him from supporting'the Union. Also in early December, Buff had a conversation with employee David Lee about the Union. Lee initiated this conversation by going to Buffs-office to speak to Buff about-the Union. Lee testified that Buff stated Lee was like a leader among the other employees and told Lee to keep talking with them because they would follow Lee. According' to Lee, Buff said- that the Company was against the Union and he wanted -Lee to tell the other employees to vote "No." Lee told Buff he would do so. Buff testified that when Lee first approached, Lee said he wanted to talk about the "mess" going on at Re- spondent's facility. Lee stated he had mixed feelings about the Union, and that his wife and fellow employees had him confused. According to Buff, he told Lee he was not permitted to question Lee about the Union, but that he felt .Lee was a capable person who was able to make up his-own mind Buff admits that in this conversa- tion with Lee he told Lee that Lee was older than the other employees, that the other employees looked up to Lee as a leader, and that what Lee did might influence other employees Buff, however, denied asking Lee to get other employees to vote no. I credit Lee, whom I found to be forthright and truthful I note, for example, that Lee did nor hesitate to admit he told Buff he would try to get other employees to vote against the Union. I note, too, that on cross-examination Lee candidly admit- ted' that' in this conversation Buff told him that he had, the warehouse facility where employees worked to an office location the same right everybody else did, that Lee could talk to other employees, but that Buff could not tell him to do that. -I found Lee to be a completely candid witness and find that while Buff told Lee he could not "tell" or re- quire Lee to talk to other employees, Buff clearly solicit- ed or requested Lee to do so on behalf of Respondent. Lee, in fact, agreed that he would do so. I find that by soliciting Lee to speak to other employees on behalf of Respondent and to ask them to vote "No," Buff violated Section 8(a)(1) of the Act. Amber Delivery Service, 250 NLRB 63 (1980). In addition to the meeting held by Schauer and McFarland with employees on December 1, Regional Vice President Charles Wright3 held a meeting with em- ployees-in early December. The meeting was also attend- ed by both Buff and Bass Employee James Stewart testi- fied that at this meeting employees were first addressed by Wright and later by Buff. According to Stewart, Wright told employees that he had heard about com- plaints the employees had made and he was sorry about what was happening at the warehouse facility. Wright told employees that in trying to reach a production goal, Respondent. had overlooked the employees Wright told employees that Respondent was sorry. Wright also told them that from then on, if anything else came up, Re- spondent's' door was always open to hear-any complaints the' employees had. According to Stewart, Buff reiterat- ed Wright's apology to the employees for overlooking them. Testimony of employee Charles Langston is very similar regarding this meeting According to Langston, after Wright apologized to the employees for overlook- ing them in trying to reach a production goal, Wright told employees that now he wanted to make employees understand that Respondent's doors were always open, and if employees had any problems or complaints they could come and speak to management . Both Stewart and Langston testified that prior to this meeting there was no official "open-door" policy in existence and neither of them had ever been told before that they were free to discuss problems and complaints with management. Wright's testimony provides a somewhat different per- spective to what'is basically an 'undisputed set of facts. Wright testified he told the assembled employees that he felt Respondent 'had lost some 'of the good communica- tion with employees which existed when he was general manager at the warehouse. According to Wright, he told the employees that he felt there had been a breakdown in communication and he felt that moving his office out of the warehouse may have contributed to the breakdown. Wright testified he, told the employees that just because his office had moved, it did not mean his door was not open. The argument, here is less of,a factual argument and more an argument whether Wright's statements to em- ployees are unlawful. Wright, testified that as a manager he had an open-door policy for 30 years and that he could think of very few employees who had not come to him to discuss some problem during that period. Em- 3 In August 1983 Wright's office had been moved across town from PYA/MONARCH, INC ployee Langston admitted that he had gone to Wright to talk about things which concerned him at various-times in the past and that he -knew he could go and talk to management officials on his own initiative. Respondent thus argues that.at this meeting Wright was merely re- minding employees of an existing open-door policy and that his actions were not unlawful Butler Shoes New York, 263 NLRB 1031 (1982). In that case, the Board found no violation where the employer reminded em- ployees of an existing open-door policy and did not an- nounce a new policy nor imply that its response to griev- ances would change. In concluding that Wright's state- ments to employees do violate Section 8(a)(1) of the Act, I note that although Wright's office had moved in August, he had returned to the warehouse facility almost every other week, and yet this meeting ' was the first oc- casion on which he met with a group of employees. Even when Wright was located at the warehouse where employees worked, he did not hold group meetings with employees to discuss complaints or problems they might be experiencing. Wright conceded that it was the union organizing campaign and the complaints expressed to Schauer and McFarland in their meeting with employees which led Wright to conclude that there was a commu- nication problem. I credit employee Stewart's testimony that Wright began this meeting with employees by tell- ing them that he had heard about the employee com- plaints. I have found above that those complaints were unlawfully solicited from employees by Schauer and McFarland By referring to them, I conclude that Wright's statements to employees were in effect an ex- tension of the earlier grievance solicitation by Schauer and McFarland I also note the uncontradicted testimony of both Stewart and Langston that prior to this meeting they had never been, told by management of the exist- ence of an open-door policy As is seen above, actions were taken by Respondent- immediately after the meeting by Schauer and McFarland with employees to resolve employee complaints. Thus, I believe a fair inference to be drawn by employees from Wright's meeting with them and his statements to them was-that Respondent's response to grievances would indeed change. According- ly, I find that by his statements to employees, Wright so- licited grievances from employees in order to discourage them from further union activities.4 As alluded to earlier, on the night of December 20, Plant Manager Buff returned to the warehouse facility to talk with night warehouse employees Michael Boswell and Phillip Morris about the Union. Boswell testified he could not recall exactly how Buff began the conversa- tion, but testified that during the conversation Buff said he was counting on all the employees except for- two to vote "No" against the Union. Buff stated that he knew who the two were who would vote for the Union, and there was no need for Buff to talk to Robert Ellington because he knew how Ellington -was, going to vote. Bos- well testified that Buff also stated that Boswell "had had 4 I find it unnecessary to consider the further combination/permutation alleged by the General Counsel that by his statements to employees, Wright "granted benefits to employees by orally promulgating an open door policy " Nothing is gained, except a longer decision , by my consid- ering this separate allegation 1203 enough trouble in the past, and didn't need any more." Buff elaborated by telling Boswell that he would not want to find himself unemployed and looking for a job, and having to tell a prospective employer that he had been fired because he was trying to form a , union. Ac- cording to Boswell, Buff then said that he knew Boswell had been engaged in union activities, but Buff felt that Boswell was smart enough to know the right decision to make in the end Employee Phillip Morris testified that Buff approached him while he was working. Buff told Morris, "I know you're an outstanding employee and you have an excel- lent chance for . . . advancement, and there -are a lot of job openings coming up . And I feel there is no reason why you couldn't fill one of those jobs." Morris testified that Buff then said, "We need to vote `No,' and I know you're against the Union, and have been against' the Union from the very beginning." Morris changed the subject. Buff conceded that he made a special trip to the ware- house that evening to talk to Boswell and Morris. Ac- cording to Buff, he did so because: These two employees were a little special to me be- cause of some tragedies that had happened-in their lives; and I could see during the campaign that, you know, they had some mixed emotions or feelings relative to it; and so, I had already gone home and I felt a sense of obligation, particularly to these two because we had suffered some grief together. According to Buff, he made the following remarks to Boswell: I can see concern on your faces during this cam- paign, and I want to come out to relieve any anxie- ty that you may have . . . You have been a good employee, you have suffered relative to the tragedy that is in your life, and I don't want any inside you there. I want to relieve your mind. You have suf- fered enough, you and your wife, and you have paid your debt- to society . . . . I want you to-rest assured that regardless of this election, I want our feelings, our relationships to remain the same re- gardless of how you vote, regardless of this elec- tion, win, lose, or draw, you will not have to be concerned about your job as long as you continue doing the work you are doing . . . . I would appre- ciate a NO vote, but I want you to think for your- selves, and I have done everything so that we can get back on the road the way we were going, but I want our relationship to remain the same. Buff' testified he said .essentially the same thing to Morris, i.e., not to worry. According to Buff he told Boswell and Morris that there was no. need for -him (Buff) to talk to Ellington because he knew Ellington was for the Union, and it would be tough to change Ellington's mind. Buff denied saying anything to Boswell about problems he might experience gaining future em- ployment because of the Union Buff did not deny, how- ever, making the statement to Boswell that Buff knew 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boswell had been engaged in union activities but knew that Boswell was smart enough to know the right deci- sion to make in the end Nor did Buff deny that he told Morris he knew Morris was against the Union. I found both Boswell and Morris to be-credible. Both are still employed by Respondent and have nothing to gain by testifying against Respondent in this proceeding Buff, on the other hand, impressed me as trying to estab- lish himself as a martyr whose sole reason for talking to Boswell and Morris was to comfort them In short, Buff's false modesty defies credulity and-renders all of his testimony suspect. Further, I note that employee Robert Ellington testified that he was close enough to Buff and Boswell during part of the conversation that he was able to hear Buff tell Boswell that he knew Boswell had been engaged in union activities and that Buff would not want to have to tell a prospective employer that Bos- well had been terminated because of union activities. I credit Boswell and Morris rather than Buff. I conclude that in Buffs conversation with Boswell, Buff threatened to fire Boswell and to blacklist Boswell with future em- ployers to dissuade Boswell from supporting the Union. In the conversation with Morris, Buff impliedly prom- ised future advancement .in return for Morris not sup- porting the Union. I also conclude that in the conversa- tions with Boswell and Morris Buff created the impres- sion that, their union-activities were under surveillance. Respondent argues Buffs statement that he knew how Ellington was going to vote did not create the impres- sion of surveillance because Ellington was an open and active supporter of 'the Union whose name appeared on the letter sent by the Union to Respondent If this were the only statement at issue, I would agree with Respond- ent. Buff, however, told Boswell that he knew Boswell had been engaged in union activities but that Buff thought Boswell was smart enough to know the right de- cision to make in the end Boswell is not named in the Union's letter to-Respondent, and has not been shown by Respondent to have been a particularly active or open supporter of the Union. In addition, Buff told Morris that he knew Morris was against the Union. It was Buffs statements to Boswell and Morris about their own union sentiments, not those of Ellington, which created the im- pression that their union- activities were under surveil- lance. On December 22 the Board conducted its election among employees of Respondent. As indicated above, 33 votes were cast for the Union, while 46 votes were cast against it. C., Dennis Safrit's Discharge Dennis Safrit was. hired by Respondent as a trainee in the shipping department on'February 11, 1980. Safrit was later made a truckdriver, the position he held when he was discharged 'on November 22, 1983. Safrit's truck- driving' duties included delivering and unloading food and grocery items•to restaurants and various institutional customers . In November 1983 Safrit's route varied from day to day, sometimes being an out-of-town route and sometimes being a local route within Raleigh. -On Thursday, November 17, Safrit was assigned a local route within the city of Raleigh. On this particular day,. the assigned route included more deliveries than usual . Due to the increased number of stops, it became apparent to Safrit sometime during the afternoon that he might, not get to all of the stops before they closed for the day. Therefore, at Charlie Goodnight's restaurant, Safrit telephoned his Supervisor Mike Galloway. Safrit told Galloway that things were not going very smoothly and that he was concerned Edenton Street Methodist Church would be closed by the time he would get there to make a delivery Safrit told Galloway that he needed Galloway to telephone and find out if the church was going to remain open. Galloway, however, told Safrit that he needed to speak to John Odenwelder, the cus- tomer service manager. Galloway transferred Safrit's call to Odenwelder Safrit explained the situation to Oden- welder and asked' Odenwelder to call the church to find out if it would be open and then to call ahead to Safrit's next stop, Wake County Elderly Nutrition Center, and leave a message for Safrit so that Safrit would know whether the church would be open or closed. Oden- welder agreed.. Safrit then completed his delivery at Charlie Goodnight's restaurant and proceeded to the Nu- trition Center. Safrit arrived at the Nutrition Center shortly before 4 p.m After unloading that delivery, Safrit checked and found that no message had been left for him. As a result, Safrit assumed that the church was closed, and he con- tinued with his other deliveries Safrit concluded his route and returned to the warehouse 'facility at approxi- mately 5 p.m. After arriving at the warehouse, Safrit asked Galloway if he could go to a nearby bank and cash his paycheck. Galloway ,told Safrit" to go ahead. When Safrit returned to the warehouse, he first showed Odenwelder and then showed Galloway his returned in- voices. On Friday, November 18, Safrit left the Raleigh ware- house at 2:30 a.m.to make deliveries in Virginia. That morning, Ben Jeffries, the sales representative responsible for Edenton Street Methodist Church, received a tele- phone call from a Ms. Hyman at the church. According to Jeffries, Hyman informed him that she had not re- ceived her delivery the previous day and needed it badly. Jeffries responded that he did not-know why she had not received the delivery, but that he would check it out Jeffries then called the' warehouse Someone in the customer service department told Jeffries that the in- voice for the church had "closed" written on it. Jeffries relayed this to Hyman. According to Jeffries, Hyman re- sponded that someone had been at the church until ap- proximately 7 p.m. that day. Jeffries assured Hyman that he would deliver the order to the church himself that morning, and he did Jeffries then told Galloway about the conversation with Hyman. Galloway testified that he then began an investigation. According to Galloway, he telephoned Hyman, who told Galloway that she had left the janitor at the church to receive the order Galloway testified he then asked Customer Service Manager John Odenwelder to call the other places on Safiit's November 17 route which had not received their orders. _Odenwelder later reported that one of the other places that had been skipped by Safrit PYA/MONARCH, INC 1205 the previous day was open, but that they might not have heard Safrit when he came to make the delivery. The other place which had not received its delivery was closed on November 1,7 Galloway then reviewed Safrit's timecard for November 17 and concluded that Safrit had not punched out his timecard when he left to go to the bank Galloway then decided he would suspend Safrit and recommend ' his termination to Buff for having skipped a deliverable load and for having failed to punch out before leaving the facility to go to the bank. When Safrit returned to the Raleigh warehouse on Friday, Safrit saw and spoke to both Galloway and Op- erations Manager Bass. Nothing was said to Safrit by either Galloway or Bass, however, about the Edenton Street Methodist Church order. When Safrit reported to work on Monday morning, November 21, Safrit was informed he should see Gallo- way. Safrit met with Galloway and Operations Manager Bass. Galloway asked Safrit about his not delivering the load to the church on November 17 Safrit told Gallo- way that Odenwelder had not called him-at Wake County Elderly Nutrition Center to tell him whether or not the church was open. and he therefore assumed it was closed. Galloway informed Safrit that he' had spoken to a woman from the church who said that it had been open and that she was upset no delivery had been made. Galloway told Safrit he was going to suspend Safrit for bringing back a deliverable order and for not having punched out when Safrit went to cash his paycheck on November 17 Galloway informed Safrit that he was going to recommend to Buff that Safrit be discharged. , On November 21, Galloway and Bass met with Buff, reported to Buff what they had learned, and recommend- ed to Buff that Safrit be discharged Buff concurred. On November 22 Safrit was discharged by Galloway Respondent advanced two reasons for discharging Safrit. First was Safrit's failure to make the delivery to Edenton Street Methodist Church, thereby violating Re- spondent's alleged policy against returning a deliverable order without his supervisor's permission. The second reason advanced by Respondent for discharging Safrit was Safrit's failure to punch out his timecard on Novem- ber 17 before going to the bank to cash his paycheck. Respondent acknowledges in its brief that the General Counsel has some reason to contend that Safrit was not at fault for failing to make the delivery at Edenton Street Methodist Church As Respondent notes, "General Counsel's obvious position may be that by calling Gallo- way . . . Safrit had done all he could to make that deliv- ery, and that the fault lies with Galloway and the cus- tomer service department for not responding to Safrit's inquiry as to whether the church was open " Respondent argues, however, that this position fails to take into con- sideration certain "uncontroverted " testimony of Gallo- way and Buff to the effect that while the customer serv- ice department may attempt ., to assist drivers in making deliveries, the ultimate responsibility for delivering orders remains with the driver. Respondent argues that when the customer service department did not respond to Safrit's request for help, Safrit should have driven by the church to see' if it was open Respondent argues that by failing to do so, Safrit violated company policy'by re- turning ' a deliverable order without prior approval. Galloway testified that ever since he began working for Respondent there has been a strict rule against re- turning deliverable orders Galloway testified that the rule had been posted on Respondent 's bulletin board. This rule allegedly states that violation of the rule calls for automatic termination. Nevertheless no copy of this rule was produced by Respondent , allegedly because it had "disappeared from the bulletin board." Nevertheless; argues Respondent , the rule had been strictly enforced in the past, - resulting in the discharge of employees Law- rence White, Phil Sneed, and Charles Griffin. The reasons advanced by Respondent for discharging Safrit do not withstand close scrutiny. Safrit was one of the prounion employee activists named in the Union's letter to Respondent. This letter was received by Buff on November 10, less than 2 weeks before Safrit's discharge. Galloway conceded that Safrit was the most active union supporter among the truckdrivers and that he saw Safrit passing out union leaflets to fellow employees on several mornings when Galloway arrived at work Until the time of his discharge, the only discipline Safrit had received during his entire period of employ- ment was a letter of warning given to him in the, summer of 1981 for not wearing the designated uniform Re- spondent concedes that Safrit was .an exemplary employ- ee. In fact, on November 12, only 10 days before his dis- charge, Safrit earned the "super driver" award by being the most efficient driver for the third quarter of 1983 Galloway even admitted that Safrit did an -outstanding job." According to Galloway, Safrit was among the top 5 of Respondent's 40 truckdrivers Buff emphasized at length the great importance that Respondent placed on customer service Vice President of Operations Schauer and Senior Vice President - Human Resources McFarland made a special trip to Respondent 's Raleigh warehouse facility in late November specifically because of a prob.. lem they perceived with declining productivity. With such an emphasis, it is • reasonable to, conclude that Re- spondent would not be willing to part with such an out- standing employee without a very good reason. The first reason advanced by Respondent for discharg- ing Safrit was his alleged failure to make a deliverable order without the express permission of his supervisor. This is not a case, however, where an employee simply failed to perform certain duties which are a part of his normal routine or assignment While in the course of making his deliveries on November 17, it became appar- ent to Safrit- that because of minor problems he was ex- periencing and the larger than usual number of deliveries on his schedule that day, he might not be able to make all, of the deliveries before some of those places were closed . As might be expected of an excellent employee, Safrit took the precaution to phone his supervisor for as sistance. When Safrit spoke_ to Galloway, Galloway did not tell Safrit •to make sure he stopped at, every location on his delivery list; nor did Galloway even tell Safrit that he would make the requested call and then issue necessary instructions to Safrit. Instead , Galloway trans- ferred Safrit's call to customer service. In his conversa- 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion with Customer Service Supervisor Odenwelder, Safrit was told that a message would be left for him at Wake County Elderly Nutrition Center telling him whether Edenton Street Methodist Church would be open. Galloway admitted that it was common practice for messages to be left for drivers at customers. Safrit checked at the Nutrition Center to determine if a mes- sage had been left for him, but none had been received. Already running late, Safrit concluded that the church must be closed.5 Galloway admitted that customer serv- ice employee Doug Sutton was told to call the church to determine whether it would be open and then to call the Nutrition Center and leave a message for Safrit. Sutton did not make the call, but no disciplinary action was taken -against Sutton. Because Sutton failed to do what he had been told, Safrit was faced with making a' deci- sion on his'own how to proceed. Safrit often delivered goods to the church, but had never before made a deliv- ery there after 2 p.m. This fact, coupled-with his failure to get a message at the Nutrition Center, led Safrit to- conclude that the church must be closed. Safrit still had four other deliveries to make, and Safrit decided to con- tinue with those deliveries. As I have indicated, Respondent witnesses testified that it had a posted rule warning employees that return- ing a deliverable order would be cause for immediate discharge Mysteriously, however, this posted rule had disappeared and no copy of it was available. One won- ders how important this rule was to Respondent if it had been allowed at some time in the past to disappear from the bulletin board and not be replaced. I note that there are currently 36 rules in effect for employees at the warehouse facility, but nowhere do they include the return of 'a deliverable order as cause for immediate dis- charge. Buff and Galloway both testified not only to the existence of this rule, but both asserted that in its applica- tion' a truckdriver could not rely on customer service to tell him whether a particular customer was open or oth- erwise available to receive a delivery. I find this asser- tion totally incredible If truckdrivers were not to rely for help from customer service in such situations, why did Galloway transfer Safrit's call to customer service? If it was up to employees to make the final determination whether a load was deliverable, why were employees not provided with the telephone numbers-of customers so that they could make a telephone call to the customer- themselves in such a situation to determine whether the customer was open? I find it incredible that with such an. emphasis on efficiency, and in the midst of a period of declining productivity, Respondent would have - the driver drive to the location rather than call, perhaps only to find the customer closed. Safrit testified credibly that in similar situations in the past he had always been-able to rely on assistance from his supervisor or customer service. Safrit's credible testimony, 'sound business prac- tice, and simple logic, lead me to the conclusion that truckdrivers were indeed not only expected but required to rely' on assistance from customer service in situations 5 Salesman Ben Jeffries, who handled the church account, acknowl- edged that the latest Safrit made deliveries to that customer in the past was2pm such as that experienced by Safrit. Respondent's incredi- ble position to the contrary renders suspect its real, reason for discharging Safrit. The ultimate responsibility for terminating. Safrit be- longed to General Manager Buff, the same individual who I have found above engaged in numerous violations of the Act, including threats directed at employee Bos- well to discharge and blacklist him because of his union activities. This record is replete with evidence of Buff's union animus. Buff testified that he did not make the de- cision to terminate Safrit until all the facts were set forth before him. On cross-examination, however, Buff admit- ted that he did not know what actually transpired in the telephone call that Safrit made to Galloway on Novem- ber 17 and the instructions given by Odenwelder to Sutton. Buff testified he "knew of the conversation rela- tive to that but [he] did not know the details." If Buff had attempted to get all the facts before deciding wheth- er to discharge Safrit, he would have learned that it was Sutton who most clearly failed to perform a specific task assigned to him directly by his supervisor. Sutton,-how- ever, was not disciplined. Respondent argues that its alleged rule against return- ing deliverable orders has been uniformly enforced, re- sulting in the discharges of employees White, Griffin, and Sneed. White was terminated for returning five de- liverable orders from Durham, North Carolina White had in fact simply spent most of the day with his girl- friend instead of working. Galloway conceded that the circumstances surrounding White's discharge were not the same as Safrit's. Safrit's situation is distinguishable from that of Griffin, and Sneed as well, for two reasons. First, both Griffin and Sneed failed to make deliveries on out-of-town routes,, thereby precluding simple redelivery of the items the following day. In the case at hand, prod- ucts ordered by the Edenton Street Methodist Church were delivered to it the next morning, and the situation was easily resolved Second, and most importantly, nei- ther Griffin nor Sneed telephoned their supervisor for in- structions or assistance as Safrit did in calling Galloway. To use Safrit's failure to deliver goods to the Edenton Street Methodist Church on November 17 as a reason for discharging Safrit suggests that Respondent seized on this opportunity to rid itself of a most active union sup- porter. This conclusion is strengthened further when one con- siders Respondent's purported second reason • for dis- charging Safrit, namely, that Safrit failed to punch out his timecard before going to the bank on November 17 to cash his paycheck Safrit testified without contradic- tion that on numerous occasions he would forget to, punch in or out and a supervisor would simply sign his timecard for him. Safrit had never even received a warn- ing for failing to punch the timeclock The reason he had not received a warning and _why it is patently frivolous for Respondent to assert this as one of its reasons for dis- charging Safrit is that Safrit's failure to punch the time- clock adversely affected him, and not Respondent The reason for this is that Safrit was not paid a fixed hourly wage rate. Rather, he was paid a fixed amount for com- pleting a day's work, regardless of how long it took him. PYA/MONARCH, INC - - 1207 The reason for using a timeclock was that Safrit's hours of work were used by Respondent to calculate an effi- ciency ratio or rating. This efficiency rate was then used both in making awards to the most -efficient drivers and in determining the rate of pay a.driver would receive on times off such as vacation Thus, by not punching out: before going to the bank, it was Safrit's efficiency rating and therefore his vacation and holiday pay which might have suffered. Respondent attempted to compare Safrit's failure to punch out with that of employee Edward Stewart, who was discharged for the same offense. Stew- art, however, unlike Safrit, was an hourly paid employ- ee. Stewart's failure to punch out cheated Respondent, while Safrit's failure to punch out cheated only himself. To use this as a reason for discharging Safrit is so patent- ly frivolous that Respondent's reliance on it convinces me that Respondent was grasping for any reason it could find to discharge a leading union adherent like Safrit during the height of the union campaign in order to dis- suade other employees from supporting the Union. I so find. -Accordingly, I find that by doing so Respondent violated Section 8(a)(1) and (3) of the Act. - 11. On November 22,- 1983, Respondent discharged employee Dennis Safrit because of Safrit's union activity and • iii order to' discourage Safrit and' other employees from engaging in activity-on behalf of the Union, and Respondent thereby violated Section 8(a)(1) and (3) of the Act. - 12. The unfair labor practices which Respondent has been found to have engaged in, as described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce within the mean- ing of Section 2(6) and (7) of the Act. 13. The conduct of Respondent which has been found to constitute unfair labor practices within the meaning of the Act which occurred during the critical period be- tween the filing of the representation petition and the date of the election have interfered with the employees' exercising a free and unfettered choice in the selection of their collective-bargaining representative in Case 11-RC- 5177. CONCLUSIONS OF LAW 1. Respondent PYA/Monarch, Inc. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Chauffeurs, ,Teamsters and Helpers Local Union No. 391, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3 About November 9, 12, or 13, 1983, Respondent re- stricted employees whom it knew to be prounion from communicating with other employees. - 4. About November 10, 1983, Respondent threatened employees that if they chose the Union as their collec- tive-bargaining agent, benefits could be taken away or the warehouse could even be closed. - 5. About December 1, 1983, and on another occasion in early December, Respondent solicited grievances from employees, expressly and impliedly promised employees that the grievances would be remedied, and in fact reme- died employees' grievances in order to-dissuade employ- ees from supporting the Union. 6. In December 1983, Respondent threatened to dis- charge employees and then blacklist employees with future employers in order to dissuade them from support- ing the Union. • 7. During the first week of December 1983, and about December 7. or 8, 1983, Respondent interrogated em- ployees about their union sentiments. and beliefs. 8. In early December 1983, Respondent solicited an employee to talk to other employees on Respondent's behalf and to encourage them to vote against union rep- resentation., 9. In December 1983, Respondent impliedly promised employees future - advancement and promotion in return for not supporting the Union. 10 In December 1983, Respondent created the impres- sion among employees that their union activities were under surveillance.- THE REMEDY _ Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. • As a, part of the remedy in this case, the General Counsel seeks an order requiring Respondent to recog; nize and bargain with the Union. The General Counsel established that the Union did obtain a majority of em- ployee signatures on authorization cards designating the Union as their collective-bargaining agent. As we know, the Union did not receive a majority of the votes cast in the election on December 22. A bargaining order remedy is appropriate only where the unfair labor •prac- tices which Respondent has been found to, have engaged in are, so serious and of such a pervasive nature as to make unlikely the holding of a free and fair election. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); L'Er- mirage Hotel, 268 NLRB 744 (1984); Kay. , Motors, 264 NLRB 1030 (1982). Upon reflection, I am not convinced that the unfair labor practices in this case are sufficiently severe to warrant the issuance of a bargaining order. The grievances which were solicited from employees and the benefits which were granted to them in order to remedy these grievances involved fairly, minor item's such , as bat- teries and work clothing which have a direct impact on productivity. The more serious unfair labor, practices, i.e., those engaged in by Buff, occurred,in one-on-one conversations between him,and a. few individual employ- ees. It, is unlikely that these were disseminated to the entire collective-bargaining unit. The unfair labor- prac-tice with the most severe Impact on tie largest, number of employees was undoubtedly the effect of Safrit's dis- charge. I am not convinced that, the unlawful discharge of a single employee in a bargaining unit comprised of approximately 80 employees is so severe that it renders the holding of a second free and fair election unlikely. Thus, while I do not condone any of the unfair labor 1208 DECISIONS OF NATIONAL - LABOR RELATIONS BOARD practices which I have found to have occurred , nor do I find that they constitute the. pervasive type of unfair labor practices which call for the issuance of a bargain- ing order remedy . Kay Motors, -supra. Accordingly, I de- cline to recommend the,issuance of a bargaining order as part of the appropriate remedy herein . I do recommend, however, that because of the unfair labor practices which I•have found to have occurred between Novem- ber 10 and .December 22, 1983, the Union's objections to the election be sustained and the election held on De- cember 22 -be set aside and a second election be conduct- ed by secret ballot among the employees in the appropri- ate unit at such time and manner as the Regional Direc- tor deems appropriate.