Abbey'S Transportation Services, Inc.

698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Abbey's Transportation Services, Inc. and New York Hotel and Motel Trades Council, AFL-CIO. Cases 29-CA-10749, 29-CA-10829, 29-CA- 11021, and 29-RC-6023 30 June 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 28 March 1985 Administrative Law Judge Wallace H. Nations issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, to which the Respondent filed an an- swering brief. The Respondent also filed cross-ex- ceptions and a supporting brief. On 19 August 1985 the Board issued an Order remanding the proceeding to the judge for him to make findings of fact and conclusions of law as to certain alleged violations. On 10 April 1986 the judge issued the attached supplemental decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answer- ing brief. The Respondent also filed a letter resub- mitting the cross-exceptions it had filed following the judge's initial decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision, the sup- plemental decision, and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions 2 only to the extent consistent with this Decision and Order. The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive 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 re- versing the findings. 2 In affirming the judge's conclusion that the Respondent violated Sec. 8(a)(1) of the Act in its questioning of employees during the course of its investigation of the Union's objections to the election, Chairman Dotson and Member Stephens rely solely on the fact that the Respondent's attor- ney, in the presence of the Respondent's vice president and other em- ployees, asked employees whether they had signed union authorization cards. Such information was not shown to be relevant to the subject matter of the Union's objections and, under the circumstances, had a tendency to interfere with, restrain, and coerce employees in the exercise of their Sec. 7 rights, in violation of Sec. 8(a)(1) of the Act. Cf. Superior Container, 276 NLRB 521, 522 (1985) (questioning of employees in prepa- ration for trial lawful where, inter alia, it did not probe employees' views concenung the union), Moritz Communications Co., 274 NLRB 200, 201 (1985) (pretrial questioning of employee about union activity not unfair labor practice where relevant to civil suit alleging age discrimination). Chairman Dotson also relies on his dissenting opinion in Bill Scott Olds- mobile, 282 NLRB 1073 (1987) (questioning not coercive where not relat- ed to employees' own union activities, attitudes, or sentiments). In light of the above considerations, Chairman Dotson and Member Stephens find it unnecessary to pass on the judge's discussion of whether the Respond- This case concerns events occurring during and after the Union's efforts to organize the Respond- ent's employees. The Union's representation peti- tion was filed with the Board on 23 September 1983, 3 and the election was held on 4 November. The tally of ballots shows 14 votes for the Union and 33 against, with 5 challenged ballots, a number insufficient to affect the outcome. The judge dis- missed all the alleged unfair labor practice viola- tions except for two violations of Section 8(a)(1) of the Act. The judge also concluded that the one violation of Section 8(a)(1) that occurred during the organizing effort—an announcement that scheduled wage increases could not be given— could not have affected the outcome of the elec- tion. The General Counsel excepts to most of the alleged violations that the judge dismissed 4 and to the judge's failure to issue a bargaining order. The Respondent excepts only to the judge's conclusion that it unlawfully interrogated its employees at sev- eral meetings after the election. Although we adopt the judge's disposition of most issues, for the reasons stated below, we re- verse his conclusions that the Respondent's dis- charge of employees William Restrepo and Hernan Orrego did not violate Section 8(a)(3) and (1) of the Act. We also order a new election but decline to issue a bargaining order for the reasons stated below. 1. The judge found that the timing of Restrepo's and Orrego's discharges combined with the fact that they were the prime movers behind the orga- nizing campaign gave rise to an inference that their discharges were motivated at least in part by their union activity. The judge further found, however, that the Respondent would have discharged Res- trepo and Orrego even in the absence of union ac- tivity. We disagree with the latter finding. Restrepo and OrregO worked as drivers for the Respondent, which operates a limousine and char- ter bus service based in New York City. Restrepo had worked for the Respondent for 8 years and was its second most senior driver. On 7 or 8 Sep- tember, Restrepo and Orrego obtained membership cards from the Union and began soliciting their co- workers to sign the cards. Thirty-one employees signed cards. Restrepo and Orrego also informed the other drivers of a meeting at the Union's office ent should have given all investigatory warnings, directions, instructions, etc., in both English and Spanish. 3 All subsequent dates are in 1983 unless stated otherwise. 4 No exceptions were filed with respect to the judge's dismissal of alle- gations that the Respondent unlawfully solicited grievances and granted a benefit during an overtime pay discussion at a 23 September meeting with employees, unlawfully promised a benefit at the same meeting by reminding employees of their health insurance coverage, and unlawfully interrogated and threatened employees Gonzalez and Quintanala 284 NLRB No. 81 ABBEY'S TRANSPORTATION SERVICES 699 on 19 September, which 22 drivers attended. On 23 September the Union filed with the Board a peti- tion seeking to represent the Respondent's drivers. About 6:30 that evening Lester Feinberg, the Re- spondent's president, called Restrepo and Orrego into his office sequentially and discharged them. Then, at 7 p.m., Feinberg held a meeting with some of the Respondent's drivers at which a prob- lem concerning overtime pay was resolved in a way suggested by the drivers and Feinberg remind- ed the drivers that they were eligible for health in- surance after working for 1 year. Subsequently, the Respondent conducted a campaign to persuade its drivers not to vote for the Union. At the time of his discharge, Restrepo was told he was being discharged because he had not apolo- gized for an argument he had with Feinberg about a week earlier and because Restrepo had com- plained to drivers of another limousine service that Feinberg had cheated him. Restrepo believed he had been paid incorrectly for a charter bus trip he had driven in late August. He met with Feinberg about 16 September to discuss the pay question and got into a heated argument in which Restrepo called Feinberg a "son-of-a-bitch" and accused him of stealing his money. Restrepo testified that Fein- berg had called him a "son-of-a-bitch" first. Steven Feinberg, the Respondent's vice president, testified that Lester Feinberg told Restrepo that he expect- ed him to apologize for his behavior. 5 Restrepo did not apologize. In the meantime, other employees reported to Steven Feinberg that Restrepo com- plained to them that the Respondent had cheated him, and about 20 September the operator of an- other limousine service informed Steven Feinberg that Restrepo had been making the same complaint to his company's drivers. At the time of his discharge Orrego was told he was being discharged because he had refused in- structions from the Respondent's dispatcher and general manager, Jose Fernandez. According to Orrego's uncontroverted testimony, on 21 Septem- ber, about 4 p.m., he finished a trip to Kennedy Airport and was told by the dispatcher to return to the garage. While he was returning to the garage the dispatcher called him and instructed him to return to Kennedy Airport, which he did. At the airport he called the dispatcher again and was told to continue waiting. After another 15 to 25 min- utes, he thought the dispatcher had forgotten him, so he called again. This time he was instructed to return to the garage. While en route to the garage, 5 Restrepo denied that Feinberg had told him to apologize, and the judge did not make a finding as to whether such a statement had been made. For purposes of our decision, we assume, without deciding, that Restrepo had been told to apologize. the dispatcher called him and again instructed him to return to Kennedy Airport. At this point it was rush hour, and Orrego was in the express lane of the Van Wyck Expressway. On-ego testified that it would have taken him a long time to turn around his vehicle and return to the airport and that many of the Respondent's night drivers would already be headed to the airport. For these reasons he replied to the dispatcher that he was going to continue to the garage. At the garage he saw the dispatcher, Jose Fernandez, who was also the Respondent's general manager. Fernandez said good night to him and said nothing concerning his refusal to return to the airport. About 2 months prior to this incident, Orrego had been discharged for stealing gasoline, reinstated, discharged again for threatening the em- ployee who had reported him for stealing gasoline, and again reinstated. In assessing the reasons given by the Respondent for Restrepo's and Orrego's discharges, we note the delays in the timing of Restrepo's and Orrego's discharges in relation to the infractions that alleg- edly prompted the discharges. Orrego's refusal to follow the dispatcher's instruction to return to Kennedy Airport took place on 21 September. When Orrego returned to the garage, he spoke briefly to Fernandez, the dispatcher and general manager. Not only did Fernandez not discharge Orrego at that time, he did not even mention Orre- go's failure to follow his instructions. Further, Orrego was not discharged until the end of the day on 23 September. The Respondent's only explana- tion for this was that time was needed to prepare Orrego's paycheck. The Respondent, however, did not introduce any evidence to show why it took 2 days to prepare Orrego's paycheck or to explain why nothing was said to Orrego about his failure to follow instructions at the time of the incident. Similarly, Restrepo's argument with Lester Fein- berg during which Restrepo accused Feinberg of cheating him, called him a "son-of-a-bitch," and, according to Steven Feinberg, behaved like a luna- tic, yelling and throwing papers and other objects in the Feinberg' office, occurred 7 days prior to his discharge. Yet, despite such conduct by Res- trepo, the Respondent took no action against him at the time the conduct occurred. We fmd unpersuasive the Respondent's addition- al contention that two intervening events prompted Restrepo's discharge—Restrepo's failure to apolo- gize to Lester Feinberg for his behavior and Steven Feinberg's learning that Restrepo's com- plaints that the Respondent cheated him had been voiced not only to other employees of the Re- spondent but also to drivers of another limousine service. Restrepo's argument with Lester Feinberg 700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD took place on 16 September. Restrepo did not apologize on that day or thereafter. His failure to apologize was not a separate event that occurred shortly before his discharge. Rather, the absence of an apology for his conduct during the argument existed from the moment the argument ended on 16 September. Accordingly, Restrepo's failure to apologize for his conduct during the argument did not occur appreciably closer to the time of his dis- charge than did the argument itself and cannot rea- sonably be said to constitute a separate intervening event. That Restrepo complained about the Respondent to drivers from another company is an equally un- persuasive ground to explain his discharge. No evi- dence was presented why it mattered to the Re- spondent if one of its driver complained about his pay dispute with the Respondent to drivers from another company. There is no contention that Res- trepo's complaints constituted disparagement of the Respondent's product or service within the mean- ing of NLRB v. Electrical Workers IBEW Local 1229 (Jefferson Standard), 346 U.S. 464 (1953). Moreover, the record reveals that the Respond- ent generally tolerated a subtantial amount of em- ployee misconduct and that Restrepo's and Orre- go's discharges were disproportionately severe compared to the discpline given by the Respondent for other incidents. For example, driver Mario Sa- lazar was discharged, but then reinstated, when he returned to the garage drinking a beer after aban- doning his limousine, which had broken down in the street. Driver Byron Estrada refused instruc- tions to make a trip a few days before Orrego com- mitted a similar infraction. Although Lester Fein- berg told Estrada that he was going to be dis- charged for this refusal, Estrada was not disci- plined at all after he explained the incident to Fein- berg. Orrego, by contrast, was not permitted to give an explanation. Seven years earlier Restrepo also had refused a dispatcher's instructions to pick up a group of passengers and had been suspended for 7 or 8 days as a result. Finally, the Respondent had tolerated fairly severe misconduct by Orrego only 2 months prior to the discharge at issue here. Orrego had been discharged for stealing gasoline from the Respondent but was reinstated after a week. He was then discharged for threatening the employee who had reported him for stealing gaso- line but he was again reinstated after about a week. Only after Orrego began leading a union organiza- tional effort did the Respondent allegedly find a lesser infraction—his refusal to follow a dispatch- er's instruction to return to the airport—to warrant his permanent discharge. Also, Restrepo's dis- charge for his alleged misconduct in failing to apologize to Lester Feinberg and complaining to another company's drivers is disproportionate com- pared to other conduct that the Respondent had tolerated, particularly considering Restrepo's length of service with the Respondent. While, as we have concluded, the timing of Res- trepo's and Orrego's discharges does not corre- spond to the occurrence of the conduct that alleg- edly caused them to be discharged, it is striking that their discharges came in the midst of a union organizational effort of which Restrepo and Orrego were the prime movers. Moreover, while Restrepo and Orrego allegedly were discharged for separate, unrelated misconduct that occurred at different times prior to their discharge date, the Respond- ent's president linked them by calling them to his office at the same time and discharging them virtu- ally simultaneously. Thus, the manner in which they were discharged suggests that the Respondent viewed a nexus between them, rather than regard- ing them as unconnected employees who had en- gaged in separate incidents of misconduct. Addi- tionally, the meeting with employees that the Re- spondent's president held less than a half hour after Restrepo's and Orrego's discharges appears to have been designed to cultivate favor among the em- ployees, in that at the meeting the Respondent re- solved an overtime pay issue in a manner beneficial to the employees and reminded employees of their eligibility for health benefits. Based on the delays between Restrepo's and Or- rego's alleged misconduct and their discharges, the disproportionate severity of the discipline accorded Restrepo and Orrego compared to the Respond- ent's treatment of employee infractions on other occasions, and the fact that Restrepo and Orrego were discharged simultaneously and at a time shortly after they, as the prime movers of the orga- nizing effort, had made substantial progress in card signing and in generating attendance at a union or- ganizational meeting, we conclude that the Re- spondent discharged Restrepo and Orrego because of their union activities and that the reasons given by the Respondent for their discharges were pre- textual. Although there is no direct evidence of the Respondent's knowledge of Restrepo's and Orre- go's union activities, we find that the foregoing cir- cumstances give rise to an inference of such knowl- edge. See generally NLRB v. Link-Belt Co., 311 U.S. 584, 602 (1941); NLRB v. Long Island Airport Limousine Service Corp., 468 F.2d 292, 295-296 (2d Cir. 1972); Penco, Inc., 278 NLRB 1095 (1986); Marathon LeTourneatt Co., 256 NLRB 350, 363 (1981), enfd. 699 F.2d 248 (5th Cir. 1983); E. Mishan & Sons, 242 NLRB 1344, 1345 (1979). ABBEY'S TRANSPORTATION SERVICES 701 In addition, the confluence of circumstances set forth above—including the fact that Restrepo and Orrego were the instigators of an organizing effort that was gaining momentum, their simultaneous discharges, the pretextual nature of the asserted reasons for their discharges, and the proximity be- tween Restrepo's and Orrego's union activities and the occurrence of their discharges—lead us to infer that their discharges were motivated by antiunion animus. See Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). As the Board previously has observed, "[t]he same set of circum- stances may be relied upon to support both an in- ference of knowledge and an inference of discrimi- nation." Coca-Cola Bottling Co. of Miami, 237 NLRB 936, 944 (1978). In a like vein, the Second Circuit has stated in NLRB v. Long Island Airport Limousine Service Corp., supra, 468 F.2d at 295: [T]here is no good reason why the two factual propositions—employer knowledge of general union activity and employer anti-Union moti- vation in discharging a particular employee— need be proved by different types of evidence. As to each, direct evidence may not be obtain- able and circumstantial evidence and "infer- ence of probability drawn from the totality of other facts" . . . are perfectly proper. We find in this case that the circumstantial evi- dence and inferences drawn from the totality of the facts establish that the Respondent had knowledge of Restrepo's and Orrego's activities as prime movers of the union effort and that their discharges were motivated by the Respondent's antiunion animus. Moreover, we conclude that the Respond- ent failed to demonstrate that it would have dis- charged Restrepo and Orrego absent their activities in support of the Union. See Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Accordingly, contrary to the judge, we conclude that their discharges violated Section 8(a)(3) and (1) of the Act. 2. In the conclusions of law section of his deci- sion, the judge dismissed as a group all of the al- leged unfair labor practices that he had not specifi- cally sustained. Included in this "catchall" dismissal was an allegation that on 23 September dispatcher William Redondo, a supervisor, violated Section 8(a)(1) of the Act by giving employees the impres- sion that he kept under surveillance union meetings and activities and the concerted activities of the employees. However, the judge failed to provide reasons for this dismissal. We adopt the judge's dis- missal of this allegation on the basis that the Gen- eral Counsel failed to prove that Redondo was a supervisor. The General Counsel merely asserts that Redondo was a supervisor and fails to provide any argument or citations to the record on this point. Moreover, Redondo did not testify at the hearing. Nevertheless, there is some evidence bear- ing on Redondo's alleged supervisory status. Driver Mario Salazar testified that on one occasion Redondo discharged him when, contrary to Re- dondo's instructions, he abandoned his limousine and returned to the garage after the limousine had broken down. Salazar did not know if Redondo had ever discharged anyone before. Salazar was re- instated shortly after his discharge. Another fact bearing on Redondo's alleged supervisory role is that he was present in the meeting with President Lester Feinberg, Vice President Steven Feinberg, and General Manager Jose Fernandez on 23 Sep- tember, when Restrepo and Orrego were called in and discharged, and Estrada was called in and told he was going to be discharged but ultimately was not discharged. Aside from his presence, however, there is no indication what role, if any, Redondo played in these personnel actions. Finally, a month or two earlier Redondo had taken part in a meeting with Fernandez and both Feinbergs in which they discussed whether to reinstate Orrego. Redondo and two others voted not to reinstate Orrego, but they were overridden by Lester Feinberg, who de- cided to reinstate Orrego. We find these facts insufficient to establish that Redondo was a supervisor within the meaning of Section 2(11) of the Act. The evidence that on one occasion he told Salazar that Salazar was dis- charged did not show whether Redondo was acting within his authority. Nor was it shown whether Redondo was merely carrying out instruc- tions that Salazar was to be discharged. Moreover, Redondo's discharge of Salazar was not shown to be anything more than an isolated occurrence. In our view, the disputed evidence concerning Sala- zar's discharge is not sufficient to support a finding that Redondo had authority to discharge employ- ees. The evidence concerning Redondo's participa- tion in the two meetings with Fernandez and Lester and Steven Feinberg shows even less about Redondo's asserted supervisory status. His mere presence, without more, at the 23 September meet- ing does not establish that he was a supervisor within the meaning of the Act. Additionally, the fact that at the earlier meeting he voted not to re- instate Orrego, but his vote was overridden, mili- tates against fmding supervisory status because it shows that he was unable to effectively recom- mend the personnel action that he favored. Accordingly, we conclude that the General Counsel failed to prove that Redondo was a super- 702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD visor; therefore, his statements on 23 September did not create an impression of surveillance in vio- lation of Section 8(a)(1) of the Act. 3. We agree with the judge's refusal to issue a Gissel bargaining order, 6 but only for the following reasons. In order to obtain a Gissel bargaining order, the General Counsel must show, among other things, that the union had the support of a majority of the employees in the bargaining unit. Gourmet Foods, 270 NLRB 578 (1984). The Gener- al Counsel failed to make such a showing here. The General Counsel alleged that the appropriate unit for collective bargaining consisted of all full- time and regular part-time drivers, driver-mechan- ics, and driver-dispatchers and that about 20 Sep- tember a majority of the employees in this unit had designated the Union as their collective-bargaining representative. The General Counsel introduced into evidence authorization cards signed by 31 em- ployees and contends that the unit consisted of 55 employees. The only evidence that the General Counsel introduced to support this contention was a payroll list bearing the names of 55 employees.7 The Respondent maintains that this list includes only the names of its employees at certain locations and in certain departments and is not a complete list of all unit employees. Although the Respondent argued this in its briefs to both the judge and the Board, the General Counsel has failed to respond to this argument. The payroll list in issue was in- troduced into evidence without any witness identi- fying or describing it. When it was introduced, counsel for the General Counsel described it only as "a weekly payroll sheet for the week ending 25 September 1983." The document itself contains no heading or other language indicating that it was the Respondent's entire payroll list for the week or that it includes all of the employees in the unit, nor was any such representation made when it was in- troduced. 8 It was described by counsel for the General Counsel not as the payroll sheet for the week but only as a payroll sheet for the week. Ac- cordingly, we conclude that the Respondent's fail- ure to object to the introduction of this payroll list does not preclude the Respondent from arguing that the list does not show the number of employ- 6 NLRB v Gissel Packing Co., 395 U.S. 575 (1969). 7 The list contains the names of 56 employees but indicates that one, identified only as "John," was discharged on 20 September. 8 The 25 September payroll list consists of five pages. The first page is headed "NYC Payroll" The second page is headed "Crew Payroll." The third page appears from its format to be a continuation of the crew pay- roll. The fourth page is a typed sheet prepared by counsel for the Gener- al Counsel giving the full names of employees listed on the EWR or Newark payroll. The fifth page is headed "EWE. Payroll." The record does not establish that the bargaining uiut was composed entirely of NYC, Crew, and EWR employees. Accordingly, this document on its face does not establish the number of employees m the unit. ees in the unit, as the list was not represented as establishing this fact. Moreover, it is apparent that, without more, the list itself does little to prove the total number of employees in the unit. The Respondent further argues that certain indi- viduals not appearing on the 25 September payroll list are unit employees. The Respondent specifies by name three driver-mechanics and three driver- dispatchers as unit employees.° It further indicates that a number of employees appeared on the Excel- sior list, who did not appear on the 25 September payroll list and that these employees are in the unit. The names of these employees are ascertain- able by comparing the Excelsior list with the 25 September payroll list. 10 We have checked the names of the employees who appear on the Excelsi- or list but not on the 25 September payroll list, and the names of the six named driver-mechanics and driver-dispatchers, against the Respondent's annual payroll records for all of 1983, which are also in evidence. The 1983 payroll records show the weeks that each employee worked. By checking the Respondent's claimed additional unit employees against the 1983 records, it can be determined whether these asserted unit employees were em- ployed by the Respondent on 20 September. This comparison reveals that six of the additional em- ployees whom the Respondent claims to be unit employees were not employed by the Respondent as of 20 September. 11 However, the remaining 9 The driver-mechanics are Byron Smith, Hector Tejada, and Angel Yucute. The driver-dispatchers are James Boestfleisch, Leroy Chase, and Augusto Paini. " Employees whose names appear on the Excelsior list but not on the payroll list for the week ending 25 September include the three driver- mechanics and the three driver-dispatchers named in fn. 9 above, plus the following individuals; Anthony Augusta, Claudio Pinheiro, Fernando Pinheiro, Reginaldo Porto, Arnold Smith, Steven Streater, Carlos Suarez, and Juan Tellechea. The General Counsel introduced a union authoriza- tion card signed by Porto even though his name does not appear on the 25 September payroll list that the General Counsel introduced to show the number of employees in the unit. On the payroll list for the week ending 25 September, some employees are identified by only their first or last names or by nicknames. By refer- eiic to the Respondent's 1983 payroll records, which give both the proper names and mcknames for some employees, and to the Excelsior list, we have been able to ascertain the full names of these individuals, which was necessary in determining which employees on the Excelsior list are not on the 25 September payroll list. Accordingly, the names on the payroll hst for the week ending 25 September may be clarified as fol- lows: On page one, the 6th employee listed is Roberto Silva; the 7th is Luis Gutierrez; 14th, Roberto Caruso; 15th, Mario Salazar, 22d, ,Carlos Rodriguez; 25th Marcelo Ramirez; and 27th Fernando Rodriguez. On page two, the employees listed are Louis Kerr, John (see fn. 7, above), Rita Feher, Victor Feliciano, Edgar Perez, Roosevelt Green, Frank Taylor, Luis Estrada, and Aldon Butler. On page three, the employees listed are Charles Hutcherson, Mario Diaz, Shahriar Hakimian, and Ralph Colon. The names on the last page are clarified on a typed page that the General Counsel introduced as part of the exhibit See fn. 8, above. 11 Anthony Augusta, Claudio Pinheiro, Fernando Pinheiro, Byron Smith, Hector Tejada, and Juan Tellechea did not begin working for the Respondent until the week ending 2 October. ABBEY'S TRANSPORTATION SERVICES 703 eight were employed on 20 September." Thus, on this record we cannot make a finding that they were not in the unit. If these 8 are added to the 55 employees on the 25 September payroll list whom the General Counsel contends make up the unit, the total number of unit employees is 63, of which the 31 employees who signed cards do not consti- tute a majority. The burden is on the General Counsel to show that a majority of employees supported the Union. The 25 September payroll list, in the manner it was introduced, provides some indication of the general size of the unit but does not in fact establish the total number of unit employees. The Respondent did not merely point out the inadequacy of the payroll list as proof of the number of unit employ- ees. It went on to identify individuals, not on the weekly payroll list, who it contends were in the unit. Record evidence corroborates that eight of these individuals were employed by the Respond- ent at the relevant time. If at least seven of these eight individuals were in the unit, then the number of employees who signed union authorization cards does not constitute a majority. Under these circum- stances, we find that the General Counsel failed to meet her burden of proving that the employees who supported the Union constituted a majority of the employees in the bargaining unit, which is a prerequisite for issuance of a Gissel bargaining order. Accordingly, we decline to issue a bargain- ing order. 4. We have found that the Respondent violated Section 8(a)(3) and (1) by discharging the prime movers of the union campaign, Restrepo and Orrego. Additionally, the judge concluded that the Respondent violated Section 8(a)(1) by telling em- ployees that previously scheduled wage increases could not be given prior to the election, and the Respondent does not except to this conclusion. We fhid that the Respondent's conduct that comprised these violations also consitituted objectionable con- duct that warrants setting aside the election." Ac- cordingly, we shall direct that a second election be conducted. 12 These employees are James Boestfleisch, Leroy Chase, Augusta Pam, Reginald° Porto, Arnold Smith, Steven Streater, Carlos Suarez, and Angel Yucute Yucute worked from the week ending 8 May through the week ending 3 July He did not work again until the week ending 2 October but then worked during every week in October, 2 weeks in No- vember, and 1 week in December. From the record we cannot deternune whether as of 20 September he was on leave or whether he had resigned and was rehired m October. Thus, we are unable to make a finding that he was not employed by the Respondent on 20 September 13 We need not pass on the judge's conclusion that the statement con- cerning the withholding of wage increases in itself did not constitute ob- jectionable conduct warranting setting aside the election AMENDED REMEDY Having found that the Respondent has violated the Act by discharging employees William Res- trepo and Hernan Orrego because of their union activities, we shall, in addition to the remedy pro- vided by the judge, order the Respondent to cease and desist from discharging or discriminating against employees because of their union activities and to offer reinstatement to Restrepo and Orrego and make them whole for any loss of earnings and other benefits. Backpay shall be computed on a quarterly basis from the date of discharge to the date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as comput- ed in New Horizons for the Retarded." We also shall order the Respondent to expunge from its files any references to the unlawful discharges of Restrepo and Orrego and to notify them in writing that this has been done and that the discharges will not be used against them in any way. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Abbey's Transportation Services, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(a) and re- number the succeeding paragraphs. "(a) Discharging or discriminating against any employee because of the employee's activity on behalf of New York Hotel and Motel Trades Council, AFL-CIO or any other union." 2 Insert the following as paragraphs 2(a) through (c) and renumber the succeeding para- graphs. "(a) Offer William Restrepo and Hernan Orrego immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantial- ly equivalent positions without prejudice to their seniority or any other rights or privileges previous- ly enjoyed, and make them whole for any loss of 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. "(b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. 14 In accordance with our decision m New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S.C. § 6621. 704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD "(c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that the election held on 4 November 1983 in Case 29-RC-6023 be set aside and the case remanded to the Regional Direc- tor for Region 29 for the purpose of conducting a new election. [Direction of Second Election omitted from pub- lication.] APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge or discriminate against our employees because of their activities in support of New York Hotel and Motel Trades Council, AFL-CIO, or any other union. WE WILL NOT inform our employees during a union organizing campaign that we cannot pay pre- viously scheduled wage increases until after the election. WE WILL NOT interrogate our employees and re- quire them to give a statement without giving our employees all the assurances and safeguards re- quired by law. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer William Restrepo and Hernan Orrego immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed, and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to his dis- charge and that the discharge will not be used against him in any way. ABBEY'S TRANSPORTATION SERVICES, INC. Lynn Neugebauer, Esq., for the General Counsel. Jeffery Bernbach, Esq. and Bruce J. Robbins, Esq., of New York, New York, for the Respondent. Mary E. Moriarty, Esq., of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. Based on charges filed by New York Hotel and Motel Trades Council, AFL-CIO (the Union) on September 30, October 26, and December 9, 1983, and February 6, 1984, complaints were issued by the Regional Director for Region 29. As a result of objections to an election held on November 4, 1983, a report was issued by the Regional Director. Ultimately the Regional Director issued a second report on objections, and ordered con- solidated cases and notice of hearing to each of the cap- tioned proceedings on February 28, 1984, which was upheld on exceptions by order of the Board dated May 24, 1984. The consolidated complaints allege a number of violations of Section 8(a)(1), (3), and (5) of the Act and seek generally the issuance of a bargaining order. Re- spondent's answer denies any violations of the Act. A hearing was held before this judge in Brooklyn, New York, and New York, New York, on August 29, 30, and 31 and September 4 and 5, 1984. Briefs were re- ceived from both Respondent and the General Counsel on or about October 25, 1985. I. THE BUSINESS OF RESPONDENT Abbey Transportation Service, Inc. (Respondent) maintains its principal office and place of business in Long Island City in the borough of Queens, city and State of New York, where at all times material, it has en- gaged in providing charter bus services and limousine transportation services and related services in interstate commerce. Respondent has admitted the jurisdictional al- legations of the consolidated complaints and I find that it is an employer within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdic- tion herein. ABBEY'S TRANSPORTATION SERVICES 705 II. THE LABOR ORGANIZATION INVOLVED New York Hotel and Motel Trades Council, AFL- CIO is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts and Summary of Allegations Respondent provides transportation to and from the three New York City area airports—LaGuardia, Kenne- dy, and Newark—as well as other bus services. On August 27, 1983, 1 Respondent's driver, William Res- trepo, made a bus trip to Washington, D.C. for Martin Luther King Jr. Day. When Restrepo received his pay for that trip, he believed he had received an incorrect amount. He, thereafter, took actions that resulted in his termination on September 23. The termination is alleged to have been discriminatory because of union activity that will be discussed in detail later. On September 7 or 8, Restrepo and Hernan Orrego, another driver, went to the Union and obtained blank membership cards. Res- tropo and Orrego then solicited other drivers to sign the membership cards and obtained a number of signed cards. It is alleged that on or before September 23, Respond- ent's general manager, Jose Fernandez, asked his brother, one of the other company drivers, what he thought of the Union. This conversation is relied on by the General Counsel as establishing the date of Respondent's knowl- edge of the union organizing activity. On September 19, approximately 22 drivers attended a meeting at the union offices. Restrepo and Orrego had informed the drivers of this meeting. On September 23, as stated above, Respondent dis- charged Restrepo and on the same date discharged Orrego. Both discharges are alleged to have been for dis- criminatory reasons. It is alleged that also on September 23, Supervisor William Redondo allegedly told an employee that Res- trepo and Orrego , were discharged because they had made a lot of trouble and that the Company's owner was watching them. On September 23, the Union filed a peti- tion in Case 29-RC-6023 and, on the same date, Lester Feinberg, Respondent's president, called a meeting of Respondent's drivers at which it is alleged that he solicit- ed grievances, agreed to raise employees' salaries, and unlawfully offered other benefits. In October, it is al- leged that Feinberg called another meeting of drivers and told them he could not give previously scheduled wage increases until the union election was over. It is alleged that Respondent began an antiunion cam- paign by distributing letters to drivers with their pay- checks and engaged in instances of interrogation, threats, and warnings Each of the alleged instances will be dis- cussed below. The Union lost the election, held on November 4, by a vote of 14 to 33 and filed objections to Respondent's conduct. In response to the report on objections, Re- spondent, by its vice president, Steven Feinberg, and its All dates are m 1983 unless otherwise indicated attorney, Jeffery Bernbach, held meetings with employ- ees on three occasions in January 1984. It is alleged that at these meetings the employees were questioned regard- ing events described in the Report of Objections and were not given proper warnings in accordance with Board law. B. Alleged Unlawful Discharge of Restrepo and Orrego and the Layoff of Fioravante Ventanilha The General Counsel alleges that Respondent violated Section 8(a)(3) of the Act when it discharged William Restrepo and Hernan Orrego. Respondent counters that both discharges were made for cause and without knowl- edge of the employees' union activity. As noted above, Restrepo took a charter bus trip to Washington, D.C., in late August and shortly thereafter became dissatisfied about the amount of pay he received for the trip. Res- trepo communicated his dissatisfaction to fellow drivers advising them that management had cheated him on the pay for the trip. On or about September 16, Restrepo met with Lester Feinberg in Feinberg's office to discuss the pay and got into an argument. Although there is a dispute in the record concerning whether Restrepo, during this argument, threw papers around the office and otherwise disturbed its physical property, there is no question that he called Feinberg a "son-of-a-bitch" and accused him of stealing his money. Restrepo offered as reason for the outburst that he had been called a "son-of- a-bitch" by Lester Feinberg. Steven Feinberg was a wit- ness to the argument and denies that his father made the statement to Restrepo. According to the testimony of Steven Feinberg, Lester Feinberg told Restrepo that he expected him to apologize for his behavior, but Restrepo left the meeting yelling and screaming. Thereafter, another attempt was made by the Compa- ny's secretary to explain how the pay for the involved trip had been calculated, but Restrepo was not satisfied with the explanation. Restrepo did not apologize to Lester Feinberg and continued to complain to Abbey's drivers as well as drivers of other companies that he had been cheated. It is the testimony of Steven Feinberg that the event that triggered Restrepo's discharge was when he learned from the owner of another limousine compa- ny that Restrepo had made such statements to his driv- ers. Restrepo was called into Feinberg's office and told that he was being fired because he did not apologize to Lester Feinberg for the earlier argument and because he spoke to another company's drivers about the incident. With respect to the discharge of Orrego, Steven Fein- berg testified that Orrego refused a direct order from a supervisor on September 21 for which he was discharged on September 23. His discharge followed two instances within 2 months preceding his discharge in which Orrego was suspended, discharged, and reinstated. These instances involved stealing company gasoline and threat- ening a fellow employee for reporting the theft to Abbey's management. At the time of the discharges, Respondent contends that it had no knowledge of union activity among its drivers. Though the General Counsel has no direct proof that Respondent did have such knowledge, she makes 706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the argument that it would be inconceivable for manage- ment to have learned of Restrepo's complaints about his pay from other drivers at the time that Restrepo was passing out union authorization cards without at least one of the drivers mentioning this fact to management. She also points to the timing of the discharge on Septem- ber 23 to support her contention that union animus was the motivating factor in the discharges, pointing out that it would have been logical for Restrepo to have been fired on the date of the argument with Feinberg and for Orrego to have been fired on the date that he refused to obey an order from a supervisor. The General Counsel also notes that Restrepo was the most senior driver on Respondent's staff and with respect to Orrego, another employee, Brian Estrada, refused a trip on September 30 and was not disciplined after being allowed to state the circumstances for his refusal. Orrego was not allowed an opportunity to explain the circumstances of his refusal. I would agree with the General Counsel that the timing of the discharges combined with the fact that Restrepo and Orrego were the prime movers behind the union organizing campaign would give rise to an infer- ence that their discharges were motivated at least in part by their union activity. I find, however, that Respondent had ample cause for discharging both employees and, based on the testimony, would have discharged both em- ployees even in the total absence of union activity. Therefore, / will recommend that the complaint, insofar as it alleges unfair labor practice on the part of Respond- ent in discharging Restrepo and Orrego, be dismissed. Fioravante Ventanilha was hired by Respondent on July 31, and assigned as a Newark driver. Ventanilha signed a union authorization card on September 10 and attended a union meeting in October. On October 24, Ventanilha was laid off, which was 11 days before the tufion election. Steven Feinberg and Jose Fernandez tes- tified that in October business at the Newark Airport slowed and that they sold three vehicles used to service this airport. Four other vehicles were returned to suppli- ers not to be returned to Abbey's until spring and an- other vehicle was taken out of service for use as a shop vehicle. Feinberg testified that he instructed Fernandez to reduce the complement of Newark drivers by laying off the three junior men. Fernandez accomplished this reduction in staff through the voluntary resignation of Oscar Nievas, who was returning to Columbia, and Jaime Brito who was also returning to his home in South America, and a layoff of Ventanilha. The General Counsel asserts that Ventanilha's layoff was for unlawful reasons and in support thereof points out that he signed a union authorization card on Septem- ber 10 and attended a union meeting in October. There is no other connection shown between Ventanilha and the organizing campaign. The General Counsel also points out, based on payroll records of Respondent, that there were five Newark drivers with less seniority than Ven- tanilha at the time of his layoff, and that none of the five men were card signers for the Union. These payroll records were not subject to examination or cross-exami- nation during the course of the hearing and in a reply brief, which is accepted for the purpose offered, Re- spondent argues that the payroll records do not show what the General Counsel asserts. I credit Respondent's position with respect to the layoff of Ventanilha. There is no showing that Respond- ent had knowledge of Ventanilha's signing of an authori- zation card or attending a union organizing meeting. There is also no showing that there was any layoff of other card signers in an attempt by Abbey to rid itself of union adherents. I find that from the evidence Respond- ent's layoff of Ventanilha was consistent with its action in reducing its fleet and its staff by the voluntary resigna- tions of the other two Newark drivers. I find that Re- spondent did not violate the Act by laying off Ventart- ilha. C. Alleged Violations of Section 8(a)(1) By Respondent's September 23 and October Meetings with Employees Respondent called a meeting with its New York City drivers on the evening of September 23, the date that the petition was filed. The General Counsel suggests that Respondent, at this time, knew of the union organizing campaign, though Respondent denies such knowledge and there is no proof that it did have knowledge of the campaign on September 23. I find that it is not important in the context of the allegations with respect to the meet- ing whether Respondent had knowledge or not as its ac- tions do not constitute violations of the Act in any event. At the meeting, Lester Feinberg informed the drivers gathered that because of a Federal Wage and Hour Divi- sion investigation concerning overtime pay, the Compa- ny wanted to put everyone on a timeclock for both winter and summer. In the winter time, most of the men would only work 32 to 34 hours in a 5-day week and in the summer work 50 to 55 hours in a 5-day week. One of the drivers, Danny Besora, asked that the Company establish a policy of paying a flat number of hours throughout the year to even out the earnings. At that point in the meeting, Lester Feinberg, his son, and another management official left and let the drivers dis- cuss the situation themselves. Respondent's management briefly discussed the matter among themselves and decid- ed that if the drivers were paid on a 48-hour-per-week basis year round, the wages paid the drivers should equal what they had been getting. However, the drivers would get an advantage initially because the slow season was approaching. On returning to the meeting, the drivers and management agreed that the proposal was acceptable and it was implemented, The General Counsel asserts that taking the suggestion of driver Besora violates the Act in that it is a solicita- tion of a grievance and, further, that the granting of the suggested solution to the problem was a violation of the Act as it constitutes an unlawful benefit during the course of an organizing campaign. I disagree. The evi- dence is clear that the Company did have a problem with respect to overtime pay and agreed with the Feder- al Wage and Hour Division that changes in its wage structure would be made. The investigation took place in August. The week prior to the September 23 meeting, and clearly before the Company had knowledge of the ABBEY'S TRANSPORTATION SERVICES 707 organizing campaign, its management met with its Newark drivers and worked out a solution where those drivers went "on the clock." I think it is clear that the Company was seeking a solution to its problem with the Wage and Hour Division prior to any knowledge of the union organizing campaign and its solution both with the Newark drivers and the New York City drivers was a valid attempt to solve its overtime problem. It was not an action calculated to have an effect on the organizing campaign, if in fact it had knowledge of the campaign at that time Therefore, I do not find that the Company has violated the Act by acting on driver Beasora's suggestion and implementing the new form of payment. Also at the September 23 meeting, Lester Feinberg in- formed the men that they were entitled to Blue Cross- Blue Shield benefits under which the employee pays half the premiums and the Company pays half after 1 year of employment. The testimony of Steven Feinberg indicates that a similar announcement was made at the Company's meetings that were held at least three times per year. The Company had a policy for several years of provid- ing such benefits for employees who had been working for 1 year. The General Counsel asserts that it had been Respondent's policy not to give Blue Cross benefits to employees with only 1 year on the job, citing again the Company's 1983 payroll records. As noted earlier, these payroll records were entered into the record without ex- amination or cross-examination, and I find it difficult to accept proof from the records under these circumstances. From the records, the General Counsel contends there were at least four drivers with over 1 year of employ- ment at Respondent prior to the September 23 meeting and only one began to carry Blue Cross in November 1983. I do not fmd that this information proves the point that the General Counsel seeks to make. Whether the men carried the insurance is as much their choice as it is management's policy. Other drivers offering evidence in this record indicated that they had been carried for some time on Blue Cross and that such benefits were available to them after 1 year. I fmd that the Blue Cross coverage was a preexisting company benefit and that Feinberg's reminding the drivers of availability of the benefit cannot be considered as an illegal promise of benefit and, thus, no violation occurred in this regard. At the October meeting, a time when the Company had certain knowledge of the union organizing activity, Lester Feinberg advised drivers who were due for raises that such raises could not be given because of the up- coming union election. It was company policy to give drivers raises after their first year or 18 months on the job and some of the Company's drivers were due for raises under this policy. I agree with the General Coun- sel's contention that the failure to give the raises by the Employer was unlawful. It was the Employer's duty to proceed as it would in the absence of a union campaign and may have lawfully implemented benefits that had become conditions of employment by virtue of a prior commitment. Telling the employees that it may not im- plement a wage increase because the Union might lead employees to conclude that there is a penalty attached to the exercise of their right to choose a union would be violative of Section 8(a)(1) of the Act. I do not believe, however, that the intention of the Company's manage- ment was to coerce the drivers and instead believe that it was a mistake in understanding of what the law required them to do. Although I have found that the Company has violated the Act in this regard, I do not find the vio- lation so serious that it could in any manner have affect- ed the outcome of the election. D. Allegations of Unlawful Interrogation, Threats, and Warnings by Respondent In October, Respondent began a campaign by distrib- uting to drivers letters setting out Respondent's position. The General Counsel alleges that Respondent also un- lawfully committed incidents of interrogation, threats, and warnings. It is alleged that Jose Fernandez ques- tioned Hector Gonzalez and another driver, Oscar Nieves, in November whether he could count on their votes. Another driver, Vincente Quintanilla, testified that Fernandez also asked him during the week prior to the election whether he could count on his vote. He said that Respondent's vice president, Steven Feinberg, also questioned him about his opinion of the Union and told Quintanilla that in his opinion the Union was crooked and if the Union won the election, Respondent would close or sharply curtail its operations by firing most of its drivers. Feinberg and Gonzalez denied the allegations. Respondent points out that Hector Gonzalez had been discharged 1 month after the election for having an un- authorized passenger in a company vehicle. He had never told anyone from the Union or the Board about the alleged interrogation and alleged conduct when filing an unfair labor practice charge relating to his discharge. This charge was dismissed by the Board. Respondent also notes that Gonzalez' assertion that Jose Fernandez asked Nieves for his support is not credible as Nieves had told Gonzalez, Byron Estrada, Jose Fernandez, and others that he would be returning to Columbia before the election, which he did. Based on the demeanor of witnesses Feinberg, Gonzalez, and Fernandez and on the surrounding circumstances, I credit the denial of Fernan- dez and Feinberg that the alleged conversations with Gonzalez took place. Thus, I find no violation of the Act as alleged. Feinberg and Fernandez also denied the alleged con- versations with employee Quintanilla. I credit their denial. I find that Quintanilla was an evasive witness who testified several times that he could not understand English and that during the taking of an affidavit by Re- spondent's attorney in response to objections, he could not understand what the attorney was saying as it was in English. On the other hand, through an interpreter at the hearing, he testified as to having heard Steven Feinberg, speaking in English, make the allegedly unlawful state- ments. I cannot find that the witness can have it both ways and discredit his testimony with respect to the al- leged Fernandez and Feinberg comments. Approximately 15 days before the election, it is alleged that General Manager Fernandez told employee Henry Gonzalez that he should talk his brother (Hector Gonzalez, a driver) into voting against the Union because if his immigration 708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD papers were not in order he should not vote for the Union. Abbey's driver, Henry Gonzalez, also tesified that Steven Feinberg and Jose Fernandez told him that the Company would close if the Union got in. Feinberg and Fernandez denied that they ever made such statements. I again credit their denial. In addition to the demeanor of the witnesses, the circumstances strongly support Fein- berg and Fernandez' denial. At the time the closure threat was allegedly made, it was known in the Compa- ny that Abbey's was planning to open desks at LaGuar- dia and Kennedy airports that would increase the Com- pany's business. With respect to the alleged threat by Feinberg, it supposedly occurred at the site of the elec- tion within clear view of both the Board's agent and the union agent. Henry Gonzalez' testimony in this proceed- ing appeared to me less than credible and prompted pri- marily to aid his brother's case against Respondent. Having credited the testimony of Feinberg and Fernan- dez that such statements were not made, I find that no violation occurred. In October, it is alleged that Vice President Feinberg told employee Ventanilha that if he did not have his papers he could not vote for the Union and additionally that it would take time for benefits to come through with the Union whereas he could give the drivers Blue-Cross benefits right away. Even though Feinberg denies having made such statements, I do not think that if such state- ments were made they would rise to the level of a threat. On November 3, the day before the election, Vice President Feinberg asked driver Salazar if November 4 was his day off. When Salazar replied that it was, Fein- berg said that was good, "It is better that you didn't show up if you didn't have to." Feinberg testified that he responded to an inquiry by Salazar whether he had to come in on his day off by telling him to do what he wanted. I do not fmd that Feinberg's reply amounts to a threat within the meaning of the Act. E. Alleged Illegal Postelection Interrogation by Respondent and its Attorney In response to the Regional Director's Report on Ob- jections, Respondent set up meetings with employees, Vice President Feinberg, and Attorney Jeffery Bembach. The meetings took place on three occasions in January 1984. Approximately 15 employees were taken to Bern- bach's office where they were questioned as a groUp re- garding events described in the Regional Director's report in the presence of Vice President Feinberg. All in- structions regarding safeguards given to the drivers in line with the requirements of Johnnie's Poultry Co., 146 NLRB 770 (1964), and other cases were given in Eng- lish. There is a dispute in the record among some of the drivers about what assurances were given by Attorney Bernbach during the course of these meetings. For other reasons, I find that the assurances and directions given by Bernbach were ineffectual and inadequate under the circumstances in which they were given. The setting for the meetings was obviously coercive and had the appear- ance of intimidation as they were group meetings with the Company's vice president, a strange attorney, and the situation where the Union had lost the election. Al- though some of the drivers do speak fluent English, it was apparent to me at the hearing that many did not. At the very least, all warnings, directions, and assurances given by Respondent to the employees in these circum- stances should have been given both in English and in Spanish so that it would be clear that all the employees understood them. If the record made anything clear, it is the fact that at least some of the drivers who signed affi- davits did not understand what they were signing. At the meetings, Bernbach asked the employees for their names, how long they had been employed by Re- spondent, and whether they had signed a union authori- zation card. Statements were typed in English and given to the employees to read. Many of the employees could not understand what was said in the statements because they did not read English well. I think the Board's guidelines in the case Johnnie 's Poultry, supra, were not followed in this instance and that a violation of Section 8(a)(1) has occurred. F. Closing Conclusions and Ruling on Ojections in Case 29-RC-6023 Based on the evidence and my credibility findings with respect to the evidence, I have found that Respondent has violated Section 8(a)(1) of the Act only in informing employees that previously scheduled wage increases could not be given during the pendancy of the union campaign and in its manner of interrogating witnesses in response to the Regional Director's Report on Objec- tions well after the election. In all other respects, I have found that Respondent has not violated the Act as al- leged in the complaint. Under these circumstances though, I will require that Respondent cease and desist from the activity found to be in violation of the Act and to post an appropriate notice, I do not find that Re- spondent's actions have affected the fairness of the elec- tion or its outcome and thus will not disturb the election results. In a similar manner, I do not find that Respond- ent's violations of the Act were so serious as to require the issuance of a bargaining order, and I shall order the results of the election certified. IV. THE REMEDY Having found that the Respondent, Abbey Transporta- tion Services, Inc., has violated the Act by informing its employees that it was withholding previously scheduled wage increases until after a union election and by coer- cively interrogating employees and obtaining a statement from them in response to the Regional Director's Report on Objections, I order Respondent to cease and desist from such unlawful conduct and to post appropriate notice. CONCLUSIONS OF LAW 1.Abbey's Transportation Services, Inc. is an employ- er within the meaning of Section 2(6) and (7) of the Act. 2. New York Hotel and Motel Trades Council, AFL- CIO is a labor organization within the meaning of Sec- tion 2(5) of the Act. ABBEY'S TRANSPORTATION SERVICES 709 3. Respondent informed its employees at a meeting held during the course of a union organizing campaign prior to election that it could not pay previously sched- uled wage increases during the pendancy of the election in violation of Section 8(a)(1) of the Act. 4. Respondent, after the election, coercively interro- gated its employees and required them to sign a state- ment without affording them the safeguards provided by Board law in violation of Section 8(a)(1) of the Act. The unfair labor practices as set forth above will affect com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not commit any other unfair labor practices as alleged in this proceeding. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Abbey's Transportation Services, Inc., Long Island City, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Informing its employees during the course of a union organizing campaign that it cannot pay previously scheduled wage increases until after the election. (b) Coercively interrogating its employees and requir- ing them to give a statement without giving its employ- ees the assurances and safeguards required by Board law. (c) In any like or related manner interfering with, re- straining or coerceing employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its places of business in New York, New York, the attached notice marked, "Appendix." 3 Copies of said on forms provided by the Regional Director for Region 29, after being signed by Respondent's authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the no- tines are are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order as to what steps the Re- spondent has taken to comply. 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided m Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 3 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Lynn Neugebauer, Esq., for the General Counsel. Jeffery Bernbach, Esq. and Bruce J. Robbins, Esq., of New York, New York, for the Respondent. Mary E. Moriarty, Esq., of New York, New York, for the Charging Party. SUPPLEMENTAL DECISION WALLACE H. NATIONS, Administrative Law Judge. On 28 March 1985 I issued a decision in the above-enti- tled case. The General Counsel filed exceptions and a supporting brief, to which the Respondent, Abbey's Transportation Services, Inc. (Abbey's), filed an answer- ing brief. Abbey's also filed cross-exceptions and a sup- porting brief. On 19 August 1985 the Board issued an order remand- ing this proceeding to me for further consideration re- garding certain 8(a)(1) allegations of the complaint and whether such allegations, if proved, would constitute ob- jectionable conduct that would warrant setting aside the election involved in the proceeding and directing the is- suance of the Supplemental Decision. This Supplemental Decision is issued in response to the Board's Order of 19 August 1985. As the Decision is supplemental in nature, it adopts and makes a part hereof my Decision issued on 28 March 1985 to the extent that it is not inconsistent with the supplemental findings of fact and conclusion of law made herein. I. ISSUES FOR FURTHER CONSIDERATION A. Was Conversation Between Henry and Jose Fernandez Unlawful In regard to allegations contained in the complaint concerning unlawful interrogation, the General Counsel adduced evidence that employee Henry Fernandez, who had signed a union authorization card, testified that while alone in the office of General Manager Jose Fer- nandez, Jose asked him what he thought about the Union and Henry replied he did not know and everybody was talking about it. Jose stated he did not think the Union would go anyplace and Henry replied he did not think so either. As noted in the Order of Remand, Jose admit- ted discussing the Union with Henry a few days after the Union filed a petition to represent Abbey's employees, but, according to Jose, it was Henry who started the conversation by asking if he knew that the drivers had applied for the Union. Other than the question of who started the conversa- tion, there is no doubt that it occurred. However, even crediting, which I do, Henry Fernandez' version of the conversation, I cannot find that it constitutes a violation of Section 8(a)(1) of the Act or constitutes objectionable conduct that warrants setting aside the election. Henry and Jose Fernandez are brothers and converse on a number of topics on a regular basis. Jose estimated in re- sponse to a question from the General Counsel that the two conversed at least 5 days a week. I can find nothing in the conversation to be coercive. There is no instruc- tion from Jose to Henry not to vote for or support the Union and, for that matter, no question by Jose to Henry whether Henry was in support of or against the union organizing effort. Looking at the totality of the conver- 710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sation and the relationship of the participants, I find that the conversation was nothing more than a casual conver- sation between brothers about a topic of obvious interest at the workplace and does not constitute unlawful inter- rogation nor objectionable conduct. B. Allegations Regarding Conversation Between Employees Fioravante Ventanilha and Jose Fernandez As noted in the Order of Remand, employee Fiora- vante Ventanilha testified that, in early October 1983, General Manager Jose Fernandez told him that if the Union came in, work would be slower, fewer drivers would be working, and it would be better if he "signed for Abbey's rather than for the Union." Noting that Fer- nandez testified he did not threaten the employees, though he did not specifically address the alleged state- ments of Ventanilha, the Order of Remand requires a credibility determination be made with respect to the al- leged statements. Based on the demeanor of the two in- volved witnesses, I discredit Vantanilha's allegation that the conversation took place. The content of the conver- sation was unlike anything that was alleged to have been said by Fernandez to any other employee. As I have found from a credibility standpoint, the conversation did not take place and it could not constitute a violation of the Act, nor could it constitute objectionable conduct af- fecting the outcome of the election. C. Allegations that Employee Ventanilha Was Threatened by Feinberg As noted by the Board's order of remand, Ventanilha also testified that in October 1983 Abbey's executive vice president, Steven Feinberg, told them that any driver who did not have his papers could not vote for the Union and that Feinberg would give him Blue Cross- Blue Shield insurance right away, but if he was going to wait for the Union it was going to take time. Feinberg denied telling Ventanilha that employees without legal papers could not vote. As was the case with Fernandez, I credit the denial over the alleged conversation as relat- ed by Ventanilha. My crediting of the denial by Fein- berg is based on the demeanor of the witnesses and on the totality of the evidence presented. Although Fein- berg allegedly told Ventanilha he could not vote without "delivery papers" (presumably legal working papers), the record was not developed with respect to whether Ven- tanilha had such papers or the significance of such papers. It does not make much objective sense for Fein- berg to have threatened or misled Ventanilha into believ- ing he could not vote because of a lack of certain papers and then attempt to convince him that the Union was not good because of his father's experience and that the Company's health benefits were better than those he would have with the Union. Ventanilha was one of the most junior drivers in the Company and assigned to the Newark Airport. He made trips to the other airports, LaGuardia and Kennedy, oc- casionally. On the unspecified date when the involved conversation allegedly took place, for an unstated reason, Ventanilha testified that he stopped by the office and was immediately engaged in the alleged private conver- sation with Feinberg. I find the alleged conversation as related by Ventanilha to be unlikely and, in my opinion, unbelievable. In all, with respect to both the alleged conversations between Ventanilha, Fernandez, and Feinberg, I credit the denials made by Feinberg and Fernandez and dis- credit the allegations of Ventanilha in regard to both conversations, who, in my opinion, is a disgruntled em- ployee and had been lawfully laid off D. Allegations of Coercion by Feinberg Against Employee Mario Salazar As noted in the remand order, employee Mario Sala- zar testified that on the day before the election, Feinberg advised him that it would be better if he did not come in the next day, which was his day off. Feinberg, on the other hand, testified that Salazar asked him if he had to come in on his day off to vote, and Feinberg told him he could do what he wanted. Feinberg's description of this conversation was as fol- lows: It was, I guess, about 6 or 7 o'clock that evening. Mario Salazar came in and said, "tomorrow is my day off, do I have to come in to vote if I don't want too?" Feinberg testified that he responded, "It's your day off, do what you want." Salazar, on the other hand, described the conversation in this fashion: Yeah, he told me, "you off tomorrow?" I said, "Yes I'm off tomorrow." "So you don't need to come, that's better. You don't have to appear if you don't come." I credit Feinberg's version of the conversation. Based on my observation of the witnesses, I cannot find that Feinberg would have approached Salazar on the day before the election, inquire whether the next day was his day off, and then encourage him not to come and vote in the election. Feinberg's explanation of the conversation is far more logical and appears to me to be the truth. I find that Feinberg's version of the conversation does not con- stitute a violation of the Act nor objectionable conduct effecting the outcome of the election. II. SUPPLEMENTAL CONCLUDING FINDINGS In response to the Board's direction, I have made the required credibility determinations. As I have credited either the denial that an alleged violative conversation took place, or I have determined that the credited con- versation did not violate the Act, I find that no violation of the Act has occurred as alleged in the involved por- tions of the consolidated complaint and recommend that these portions of the complaint be dismissed.1 I If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.