Du-Bovsky & Sons, Inc., Local 20408

396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union Local 20408, United Warehouse, Industrial and Affiliate Trades Employees Union (Du- bovsky & Sons, Inc. and Dubovsky Beer Dis- tributors, Inc.) and Raymond Mitchell and Frank Nelson. Cases 29-CB-5581, 29-CB- 5702, and 29-CB-5664 August 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On June 30, 1986, Administrative Law Judge Steven Davis issued the attached decision. The Re- spondent filed exceptions and a supporting brief,' and the General Counsel filed an answering 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 briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order.4 In adopting the judge's conclusion that the shop committee members are agents of the Respondent, we note particularly that article 23 of the parties' agreement, which establishes the shop committee at issue, is entitled "Shop Steward and Union Offi- cials." Further, article 23(c) provides that, in the absence of the union steward, management will recognize a designated shop committeeman. Al- though not specifically set forth in the contract, the purpose of the committee, as found by the judge, is to handle matters that the union steward is unable to resolve, and to try to settle grievances before ar- 1 The General Counsel moved to strike the Respondent's exceptions in their entirety because they fail to meet the specificity requirements of Sec. 102 46(b) of the Board's Rules and Regulations. Although the Re- spondent's exceptions do not conform in all respects with Sec. 102.46, they are not so deficient as to warrant sinking them Accordingly, the General Counsel 's motion is denied. 8 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. s In adopting the judge's conclusion that the Respondent caused the transfer and discharges at issue, we find it unnecessary to rely on Glaziers Local Union 558 (PPG Industries), 271 NLRB 583 ( 1984), cited by the judge Further, regarding the discharges, the Respondent excepts to the judge's conclusion arguing, inter alts, that he erred in failing to analyze the discharges under Wright Line, 251 NLRB 1083 (1980). Assuming that Wright Line is applicable, we find that the General Counsel has estab- lished in each instance a puma facie case of discrimination and that the Respondent has not met its burden of demonstrating that it would have taken action against the employees in question absent their support for the rival union. 4 Interest on backpay is to be computed in the manner prescribed in New Horizons for the Retarded , 283 NLRB 1173 (1987) bitration. No exception was filed to this finding. Thus, the parties' agreement and practice reflect the close connection between shop committee members and the Union as employee representa- tives. Furthermore, the record demonstrates the con- siderable involvement of the Respondent's presi- dent in shop committee affairs. The judge noted testimony by a former union official that Eason, the Respondent's president, was informed immedi- ately of the events at each committee meeting. Moreover, in at least one instance, committee action was communicated to an employee by Eason, who further informed the employee that, "if your present attitude and work record do not im- prove drastically . . . then the Union . . . will have to seek to remedy the situation." Finally, with respect to two of the discriminatees here , Mitchell and McClellan, the shop committee meetings at which their cases were considered were called by Eason himself. After these meetings, Mitchell and McClellan were discharged . With respect to McClellan, Eason took the committee 's recommen- dation that the employee be fired to the Employ- er's vice president, who testified that the Union told him it wanted McClellan fired. In sum, the Respondent was the employees' col- lective-bargaining representative and the committee carried out part of that representative role pursuant to the collective-bargaining agreement negotiated by the Respondent and the Employer . In carrying out that role, and in particular the events at issue here, the committee was substantially influenced by Eason, the Respondent's president. Under theories of both actual and apparent authority , the actions of the committee against employee supporters of Local 807 were properly attributed to the Re- spondent. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Union Local 20408, United Warehouse, Industrial and Affiliate Trades Employees Union, New York, New York, its officers, agents, and representatives, shall take the action set forth in the Order. Meredith A. Fisher, Esq., for the General Counsel. Matthew Eason, President, of New York, New York, for the Respondent. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge . Pursuant to charges filed by Raymond Mitchell in Cases 29-CB- 296 NLRB No. 51 WAREHOUSE EMPLOYEES LOCAL 20408 (DUBOVSKY & SONS) 5581 and 29-CB-5702, on 16 March 1984, and on 13 July 1984, respectively, and pursuant to a charge filed by Frank Nelson in Case 29-CB-5664 on 4 June 1984, cer- tain complaints were issued , on 11 July and 31 August 1984 against Union Local 20408, United Warehouse In- dustrial and Affiliate Trades Employees Union (Re- spondent or Union).' The complaint, as amended at the hearing, alleges that Respondent: (a) threatened employees that Respondent would cause their discharge by the Employer with an object to induce the employees, and other employees of the Em- ployer, to support and assist Respondent , and to re- nounce their adherence to, and to abandon their support of, and assistance to, Truck Drivers Local Union 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 807); (b) attempted to cause, and caused, the Employer to transfer employee Mitchell from the position of truck- driver to the position of order picker, and to reduce Mitchell's rate of pay, because Mitchell joined and assist- ed Local 807 and opposed Respondent; (c) attempted to cause, and caused, the Employer to discharge its employees Frisson Crawford, Cresta Crump, Albert Ford, Charles Ford, Edward Gore, Hoyt McClellan, and Mitchell, because said employees joined and assisted Local 807 and opposed Respondent; and (d) arbitrarily, invidiously, and capriciously failed and refused to process the grievance of Cresta Crump con- cerning his discharge by the Employer, because Crump joined and assisted Local 807 and opposed Respondent. Respondent's answer denied the material allegations of the complaints, and in addition urges that certain allega- tions should be dismissed because they were the subject of an arbitration award. The hearing was held before me in New York City for 26 days between 10 December 1984 and 28 May 1985. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the brief filed by the General Counsel and the oral argument made by Respondent, I make the following 1 The complaint issued on II July also contained allegations against Dubovsky & Sons, Inc., and Dubovsky Beer Distributors , Inc. (Employ- er). Allegations which related to the unlawful layoffs of employees Juan Nieves and Oswaldo Mercado and the unlawful layoff of employee War- dell Currie were withdrawn by order dated 7 December 1984. Other alle- gations related to the alleged unlawful discharges of the employees who are the subject of the instant case. When the hearing commenced on 10 December 1984, 1 heard testimony regarding these allegations against the Employer and those involving Respondent. However , on 29 March 1985, the Employer entered into a formal settlement agreement which reme- died all of the alleged violations in the complaint involving the Employ- er. I then severed certain cases against the Employer from the instant case and adjourned the hearing pending Board approval of the formal settlement agreement On 12 March 1985, the Board issued an order ap- proving the settlement agreement . The hearing in the instant cases re- sumed on 2 May 1985 with regard to the remaining allegations of the complaints against the Respondent FINDINGS OF FACT I. JURISDICTION 397 The Employer, a New York corporation having its place of business at Otto Road, Glendale, New York, is engaged in the nonretail warehousing , sale, and distribu- tion of groceries, beer, and related products. During the past year, the Employer purchased and caused to be transported and delivered to its Glendale warehouse food, beverages, beer, cigarettes, dry goods, and other goods and materials valued in excess of $50,000, which were transported and delivered to its warehouse in interstate commerce directly from points outside New York State. Dubovsky and Dubovsky Beer are, and have been, af- filiated businesses with common officers , ownership, di- rectors and operators, and constitute a single-integrated business enterprise; the said directors and operators for- mulate and administer a common labor policy for the aforenamed companies, affecting the employees of said companies. The Employer admits that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and it is admitted that Respondent and Local 807 are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Employer warehouses, sells, and delivers grocery products and beer. Its president and owner is Benjamin Dubovsky, and its vice president is Alan Dubovsky, who is in charge of the grocery division, which employs about 60 workers. Matthew Eason, the president of Respondent, was em- ployed by the Employer prior to 1970. In about 1970, Respondent was formed, with Eason as its president. It immediately organized the Employer, which was the first shop it represented. Respondent has continuously represented the employees of the Employer since 1970.2 Eason has been the Respondent's president since its for- mation, and Willie Davis Sr.,3 employed at the Employ- er for 20 years, has been Respondent's vice president for 10 years. Two shop stewards who are employees, process griev- ances and are members of the shop committee. During the first half of 1984, the stewards were employees John Freeman and Harold Levine. The collective-bargaining agreement provides for a shop committee to take up grievances , and resolve in- traunion problems, such as the discipline of employees. Committee members also serve on Respondent's bargain- ing committee. During the first half of 1984, Shop Stewards Freeman and Levine and employees Robert Robinson Jr., Charles 8 The collective-bargaining agreement states that it covers the "ware- house" employees, but in practice the Union has represented , and the contract has been applied to the drivers and helpers also. 3 Hereafter, Willie Davis Sr. will be referred to as Davis. 398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pollack, and George Johnson were the committee mem- bers. Employee Mario Rosa served as a substitute for other committee members and was on the bargaining committee . In June, Rosa was appointed to replace Levine as steward, at which time he became a full com- mittee member. Prior to 1983, Eason had been an aggressive union president and was well regarded by the employees. A contractual $50-per-week wage increase was due on 1 April 1983 . At several meetings held in March and April 1983, Eason repeatedly asked the employees to waive their raise because the Employer could not afford to pay it. Eason stated that if the employees agreed to the waiver, Respondent's accountant would audit the Em- ployer's books in 6 months , and the raise might be paid then. At two meetings, the workers insisted on receiving the raise, with employees Raymond Mitchell and Albert Ford being quite vocal in criticizing Eason for suggest- ing that the raise be waived . In early April, 8 to 10 em- ployees were laid off, and a couple of weeks later, at an- other union meeting, the employees voted to relinquish their right to the raise. B. The Organizing Drive On 31 January 1984, Local 807 began its organizing drive by distributing authorization cards outside the plant from 6:30 a.m. to 5:30 p.m. This continued the next 2 days. Alan Dubovsky immediately told Union Vice President Davis that there was another union outside. Eason admitted that when Local 807 first appeared, Vice President Davis called him, and he immediately went to the Employer's premises where he saw the orga- nizers. Eason stated that the shop was very important to him, and called the Local 807 campaign a "raid" to re- place Respondent at all the shops it represented. Eason and Local 807 Organizer Robert Rabbitt Jr. exchanged words once on 31 January. Davis stood outside the plant watching the organizers and Davis was present when they attempted to speak to the employees. Employee Clarence Richards stated that he was asked by Official Alan Dubovsky to try to obtain information from the or- ganizers, but was unable to do so . Davis then suggested that Richards drive a truck past the men which he did, receiving a card.4 Employee Anthony Fugate stated that while sitting in employee Hoyt McClellan's car he signed a card for Local 807 given to him by employee Cresta Crump who was in the next car. Fugate saw Davis looking at them and Davis later asked him if he filled out a card, and if he spoke to the Local 807 men. Employee Albert Ford stated that on about 2 February, he was told by Davis that he (Davis) saw employees McClellan and Crump sit- ting in a car with the union men, and that they would be the first "mother fuckers" on my "mother fucker" list. "I think I'll fire both mother fuckers." Employee Frisson Crawford stated that committeeman Robert Robinson, Jr. said that they were "too open with the cards," and 4 I reject Davis' testimony that he was unaware of Local 807 before March 1984 The testimony of Rabbitt, Crump, Richards, Nelson, and Eason are consistent that Davis immediately learned of the Local 807 campaign when it began in late January 1984. said that Davis identified Crump and McClellan as one of the first to be fired. At that time, employees Mitchell and Albert Ford pro- posed having employees sign a petition in protest of Re- spondent . Local 807's help was sought, and two petitions were obtained from that union. The petitions, addressed to Dubovsky, stated: We the undersigned employees of DUBOVSKY & SONS, currently represented by Local 20408, hereby advise the management of DUBOVSKY & SONS that we do not wish to continue being repre- sented by Local 20408 and demand, in accordance with our rights, under the National Labor Relations Act, as amended, that DUBOVSKY & SONS and Local 20408 not enter into negotiations with 20408 for a successor labor agreement and that DU- BOVSKY & SONS not continue to recognize Local 20408 as our bargaining representative after the expiration of our current labor agreement. A copy of this petition is being directed to Local 20408 and has the object of giving both Dubovsky & Sons and Local 2040 notification of the expressed desires of the Dubovsky & Sons employees that they do not desire any negotiations, arrangements, agreements or understandings regarding our terms and conditions of employment to be reached be- tween Dubovsky & Sons and Local 20408 until there is an election by the National Labor Relations Board certifying our bargaining representative. During the next 2 weeks, employees Crump, Albert Ford, McClellan, Mitchell, and Nelson solicited employ- ees to sign the petitions. A total of 42 employees signed the two petitions. Employee Charles Ford stated that when the petitions were circulated , Shop Steward John Freeman told him that he heard that the employees were trying to get a new union. Ford denied hearing such news. Freeman then said that those men did not know what they were doing, and that they were going to mess around and lose their jobs. Albert Ford stated that at about that time, Eason asked him if there were enough signatures on the petitions, and Supervisor Carl Gemelli5 asked him where the petition was. Ford replied that it had been sent away. Gemelli then remarked that the men should be careful with the petitions because Eason was "firing employees. The man is after you." Employee Jose Mercado stated that he and employee Wardell Currie had an argument unrelated to the union situation, and Eason later remarked that he heard of the dispute, adding that "they" were probably trying to get him (Mercado) to sign the petition for the other union. Eason added that he knew what was going on, and he would "take care of all those illiterate mother fucking country boys one by one-believe me-," and Eason mentioned Currie, Albert, and Charles Ford, Mitchell, and Nelson.6 The Employer admitted that Gemelli is a supervisor within the mean- ing of the Act It was apparent, at the hearing, that certain employees were not able to read English. WAREHOUSE EMPLOYEES LOCAL 20408 (DUBOVSKY & SONS) 399 Crawford stated that, at the time the petitions were being circulated, he was told by committeeman Robinson that Eason said that all the petition signers would be fired. Employee Joseph Murcaria stated that committee- man Charles Pollack told him that he should not have signed the petition , and that it was the "wrong thing to do" because he might have lost his job because he did so. Pollack added that the Employer could not afford the $50 raise. Employee Charles Ford stated that, a couple of days later, Davis told him that Crump and McClellan were starting "trouble" in the warehouse with most of the workers, and since they thought that they were such smart guys, he (Ford) would see how smart they were. Ford asked what he meant, and Davis said that he would see. On 15 February a meeting was held at Local 807 at- tended by about 15 employees , at which authorization cards were distributed. On 19 February, a meeting was held by the Respond- ent with the employees to discuss the terms of a contract to replace the agreement which was due to expire on 31 March. Albert Ford, Gore, and Mitchell spoke out against new negotiations until the $50 raise , which was waived nearly 1 year before, was paid. They asked why Eason had not audited the Employer's books 6 months after the waiver, as promised. Eason denied making such a commitment, and the workers called for a vote to see who remembered Eason's pledge. The workers also ac- cused Eason of permitting the Employer to avoid terms of their contract and lamented that the Union and its president were not as effective as they once were. Eason testified that several employees, including Albert Ford, yelled "sell out" and "double cross." The assembled em- ployees voted not to discuss the terms of a new contract until the $50 raise was received. On 21 February a letter from Mendon Leasing Corp., the company which leases trucks to the Employer, was posted at the Employer's premises: It has come to our attention that some of your drivers do not have valid New York State drivers licenses. Further, some of your drivers have class 4 licenses. Please be advised that any driver of a Mendon vehicle must have a valid New York State license of at least class 3. The only exception to this would be an out of state resident may have an out of state license. In conclusion as part of our safety program please send me a copy of the license for each driver so we may check the driving records. On 29 February, the Employer sent Crump a letter which stated that he was fired immediately , pending ar- bitration, for "absenteeism." That day, employee Craw- ford was reminded by shop committee member Robert Robinson Jr. that he (Robinson) had previously told him that Crump was showing the cards around the shop, and boasted that "I told you they were going to be fired," and predicted that they would be discharged one by one. On 1 March, Local 807 filed a representation petition in which it sought to represent the drivers , helpers, plat- form, warehouse, production, and maintenance employ- ees of the Employer. On 8 March, the petition was withdrawn, and a decer- tification petition was filed covering the same unit. On that day, Respondent held a meeting for the purpose of determining whether the employees wanted it to repre- sent them. The vote was 30 to 15 against representation by Respondent. On 12 March, Crump and coworker Harper were told by Foreman Gemelli that they were fired. They immedi- ately asked Alan Dubovsky why they were discharged. Dubovsky told them that he did not want to fire them- they were good workers, adding that he never caught them stealing. Crump asked why he was terminated since the letter stated that his termination was "pending arbi- tration." Dubovsky answered that there would not be ar- bitration. The following day, on 13 March, a shop committee meeting was held and Raymond Mitchell was demoted from driver to order picker. The next day, Albert Ford asked Supervisor Gemelli what he was trying to do to Mitchell. Gemelli replied that it was not him "that's your fucking union. Your union is doing all these things around here." On 15 March, the decertification petition filed by Local 807 was dismissed because a valid collective-bar- gaining agreement was in effect. That day, Local 807 held a meeting at which authorization cards were execut- ed and 32 employees signed a petition, identical to those completed in February. The following day, Local 807 Organizer Robert Rabbitt Jr. gave the petition and ac- companying letter to Alan Dubovsky , who admitted re- ceiving them. The letter stated: Local 807 has enclosed a petition signed by a ma- jority of your employees directing you to terminate any and all negotiations with Local 20408 and to withdraw any and all offers toward a successor labor agreement with Local 20408 until such time as the National Labor Relations Board has conducted an election to establish who the collective bargain- ing representative is for your employees. Within that period of time, Albert Ford and Mitchell dis- tributed Local 807 cards which they received at the 15 March meeting, to employees in the warehouse. Immediately on receiving the letter and petition, Alan Dubovsky called Eason . In addition, Supervisor Gemelli and shop steward Harold Levine posted copies of the signed petition on the timeclock , in the locker room and lunchroom.' On that date, 16 March , Mitchell filed a charge against the Employer, alleging his demotion, and the discharge of Crump, because of their support for Local 807 and their opposition to Respondent. Employee Crawford stated that shortly after the peti- tion was posted, he saw Eason look at it. He told Craw- ford that there would be "a lot of mother fuckers fired, I'm just telling you because you are a friend of mine." Eason added that "they" were out to "get" him, but he T I do not credit Gemellh 's denial that he posted the petition. 400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would "get them first." Employee Wardell Currie also stated that he was in a group of 11 or 12 employees, when Albert Ford told Steward Freeman that they wanted the $50 raise. Freeman replied that he heard that they wanted a raise , but that he also heard that they would be fired, adding that anyone who signed the peti- tion would be discharged . Committeeman Robinson agreed, saying that he also heard that the petition signers would be fired. A day or two later, steward Levine and Robinson repeated that anyone who signed the petition would be fired. Robinson told Gore that Eason said that he would get rid of "every damn one" of the petition signers. About 1 week after the petition was posted , Steward Freeman told employees Dolfo Bennett and Albert Ford that almost everyone who signed the petition would be fired. Freeman also told employee William Alderman that he better accept Respondent, and that the workers would be fired if they did not want the Union . Freeman accused Alderman of being "brainwashed" by Local 807, and said that the Employer could not afford to pay the $50 raise.8 On 17 March, Eason held a meeting to discuss terms for a new contract. Crump, Albert Ford, Gore, and Mitchell were quite vocal and insistent that no new pro- posals be discussed until the overdue $50 raise was paid. Mitchell told Eason that the men did not recognize the Union or him as president. Eason replied that he still held that position. As the meeting ended, Albert Ford heard Eason say that he would "get every one of those mother fucking names on the petition." Oswaldo Mercado and Juan Nieves , part-time employ- ees, signed the petition on 15 March . Also, Jose Mer- cado, a driver, signed . Jose had previously helped Eason organize other shops by acting as an interpreter. On about 22 March, employee Clarence Richards heard Eason tell beer division shop steward Gil Skinner that he was surprised that certain people, such as Jose Mercado, signed the petition, adding that he was good to them. Eason said that he did not know why they were doing this to him but that he would "get even" with them. Em- ployee Crawford stated that at about this time, commit- teeman Robinson told him that Davis said that all part- time workers who signed cards would be fired. On 19 March, Nieves, a member of Respondent for 1 month, was sent a letter by it stating: At the discretion of Local 20408 ... your member- ship in this Union is hereby denied. An identical letter was sent to Oswaldo Mercado on 30 March. The parties' new collective-bargaining contract states that it was made and entered into on 29 March. On 30 March, a meeting was held to consider contract propos- als.9 Employees such as Mitchell , Gore, McClellan, and 8 Eason made a similar remark in his closing argument . He stated that Respondent could not represent workers who were chasing a "pie in the sky" promised by other unions 9 Some employees called this a contract ratification meeting , and it ap- pears that it was. Charles Ford were outspoken in opposition to any dis- cussion of the terms until the $50 raise was paid . Eason's authority to represent the men was also questioned. A majority of the workers voted against the Respondent's contract proposal . Eason told the men to report the next workday, warning that those who did not would be sub- ject to the terms of the new contract. Notwithstanding the vote, the new contract was made effective the next day, 1 April. On 2 April, Local 807 filed a representation petition, supported by 40 authorization cards. On 6 April, Eason came to the Employer's premises and asked Charles Ford if he knew whether Local 807 was strict on driver's licenses, adding that he knew that certain employees were using Wardell Currie's New Jersey address as their address on their license. Eason also said that there were men outside laughing and talk- ing,10 who "think they are so slick," but that he would "get them," and they would see how slick they are. That day, McClellan was fired. He received a letter which stated that he was fired for "verbal threats and endanger- ment to your fellow workers." That day, committeeman Robinson reminded Craw- ford that he once told him that "these guys would be fired one by one." Albert Ford stated that that day he heard Eason tell Steward Freeman to call McClellan and Mitchell to a shop committee meeting, adding that Eason said "I don't care what they do with them." On 10 April, Mitchell and Oswaldo Mercado and Nieves were fired. Mercado and Nieves were told by Su- pervisor Gemelli that Respondent denied them member- ship and they could no longer work for the Employer. The following day, they asked for work and were told by Gemelli that since the Union did not recognize them as members the Employer "does not want to have any- thing to do with you." About 1 week later, Gemelli told employee Richards that he believed that Mercado and Nieves were fired because they signed the petition." t On 1 June, the following employees were fired for having improper drivers licenses: Crawford, Albert Ford, Charles Ford, Gore, and Nelson. Shortly after, Albert Ford returned to the warehouse and asked Supervisor Gemelli why he was fired . Gemelli replied that the Union has "something to do with this. It's not management-it's the Union." On 14 June, Supervisor Gemelli told employee Ben- nett that he better watch out since he heard that almost all the petition signers would be fired. C. Respondent's Responsibility for the Actions of the Shop Stewards and Shop Committee The General Counsel alleges and Respondent denies, that the shop stewards and members of the shop commit- tee are agents of the Respondent. io McClellan and Mitchell were the subject of shop committee meet- ings that day << The cases of Mercado and Nieves were withdrawn. WAREHOUSE EMPLOYEES LOCAL 20408 (DUBOVSKY & SONS) 1. Collective-bargaining contract The following provisions appear in the collective-bar- gaining agreement between Respondent and the Employ- er. The identical clauses are contained in the contracts of 1981-1984 and 1984-1987: ARTICLE 23-SHOP STEWARD AND UNION OFFICIALS The employees covered pursuant to this agree- ment shall have the right to elect two (2) shop stewards from their members and designate an addi- tional committee of which the stewards shall be a part, not to exceed five (5). Such committee shall have a right to take up with a representative of the EMPLOYER all grievances arising out of this agreement . The two (2) shop stewards shall receive an additional Thirty ($30.00) Dollars per month over and above any wage increases which may be put into effect. The UNION represents this sum of Thirty ($30.00) Dollars which has been increased from prior contracts shall be a permanent non-nego- tiable figure in any and all future collective bargain- ing agreements and no further increases will be de- manded. This representation shall survive the expi- ration date of this agreement . Shop stewards shall have preferential seniority wherever same shall apply in this agreement. ARTICLE 32-SPECIAL LABOR MANAGEMENT COMMITTEE Within a reasonable time following the execution of this agreement, the EMPLOYER and UNION shall establish a labor management committee con- sisting of two (2) appointees of the EMPLOYER. This committee shall meet from time to time and as often as necessity dictates . The purpose of this com- mittee shall be to resolve any differences or disputes that may not require arbitration and for other pur- poses including, but not limited to, qualification of employees in various categories , assessment of dam- ages and the collection thereof incurred by employ- ees to the EMPLOYER'S property and any and all other purposes that would inure to the benefit of both labor and management. In addition, the contract provides that in the absence of the shop steward, "management agrees to recognize a designated shop committeeman during such period" of absence. Further, the contract states that in cases of discharge for chronic absenteeism , chronic lateness, and gambling on the premises, the first offense shall be a written warn- ing to the employee with a copy to the Union; the second offense is submission to the labor management committee, the and third offense is discharge. Finally, the contract provides for mandatory immedi- ate arbitration in the event of the discharge of a shop steward or union officer who shall remain employed pending the arbitrator's decision. In contrast, union con- sent to an arbitration involving the discharge of a nonsteward or official is required. 401 2. Shop steward The two shop stewards handle problems that arise by attempting to resolve disputes between employees and the Employer. If they are unable to get satisfaction they refer the matter to an official of Respondent . The stew- ard also attempts to ensure that management complies with the terms of the contract. Henry Wideman stated that when he was a steward from 1979 to 1981, he was paid by Respondent to go to other shops that were on strike in order to help the Union, and was also present at Board elections. 3. Shop committee The shop committee meets in order to resolve prob- lems concerning individual employees or between work- ers. The committee may call a meeting on its own, in order to consider an issue, for example, where a helper refuses to work with a certain driver, or may meet at the request of the Employer, to consider disciplinary action against an employee . Also, grievances filed by employees may be considered by the shop committee. In certain cases, usually those involving disputes be- tween employees, such as abusive behavior, the commit- tee meetings are held and action taken without the Em- ployer's knowledge. In other cases, usually involving sit- uations where the Employer proposes discipline against an employee, the committee meets, votes, and makes a recommendation to the Employer which may or may not be followed. The shop committee handles matters which the stew- ard is unable to resolve, and it tries to settle a grievance before arbitration. In March 1982, George Hayes was the subject of a shop committee meeting . His offense was disrespect and abusive language to the stewards and plant personnel. The committee voted for a 2-week suspension, and that a warning letter be sent to Hayes . One week later, Eason sent the following letter to Hayes with copies to the Em- ployer and stewards: It has been brought to the Union 's attention by the shop committee of your peers that you have ap- peared before them on numerous occasions for your misconduct as a fellow worker . Your work record leaves much to be desired. You have been suspend- ed in the past for acts of violence , threats and in- timidation of your co-workers. Let this letter serve as a warning if your present attitude and work record do not improve drastically and management fails to take the appropriate action then the Union in the interest of its members and your co-workers will have to seek to remedy the situation. In August 1982, John Ross filed a grievance against employee Frank Nelson for smacking him and pulling a knife on him at work . Ross advised Supervisor Gemelli who told him to see the steward. At a shop committee meeting, Nelson was given a 2-week suspension. It was reported that Nelson was unhappy with the suspension, and then Steward Henry Wideman requested that Re- 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent send Nelson a letter "informing him of his sus- pension and action." In April 1983, employee Arthur Nelson Jr. filed a grievance against Gilbert Nurse for making disparaging remarks about Nelson and his recently deceased father. Nurse was "brought before the committee and was told that he was given a 1 week suspension ," which he reject- ed. Nurse requested that the matter be referred to Re- spondent's office, which it was. The shop committee also recommended the demotion of Raymond Mitchell from driver to order picker. Charles Pollack, a shop committeeman and shop stew- ard, stated that he sits on the committee as a steward and not as a committeeman. Employee Clarence Richards, a vice president of Respondent from 1971 to 1977, stated that the committee is not independent of the Respondent, adding that Eason was informed immediately of the events at each committee meeting . Eason, however, stated that the committee is independent of the Union. Vice President Davis also stated that neither the Re- spondent nor the Employer controls the committee. The Board has held that "responsibility attaches if, ap- plying the 'ordinary law of agency,' it is made to appear the union agent was acting in his capacity as such." Teamsters Local 886 (Lee Way Motor Freight), 229 NLRB 832 (1977). The stewards and committeemen here are clothed by the Respondent with the apparent authority to act for it in matters about which they spoke to the employees. The steward is responsible for enforcing the terms and conditions of the collective-bargaining agreement, and has the authority to attempt to resolve grievance and dis- putes with the Employer. M. W. Kellogg Constructors, 273 NLRB 1049 (1984); Electrical Workers Local 175 (Duncan Electric), 269 NLRB 691, 692 fn. 4 (1984). The shop committee and the stewards who are mem- bers of it, have extraordinary powers over the employ- ment status of employees. Not only does the committee have the authority as to disciplinary issues raised by the Employer and can make recommendations concerning the extent of discipline to be imposed on the worker, but in addition the committee can institute, on its own, at the request of a steward , issues involving disputes between employees. These coworker contests are heard by the committee which then recommends discipline of the wrongdoer. The great power of the committee is seen in the treat- ment of George Hayes, who was charged with disrespect and abusive language to the stewards and plant person- nel. The committee voted for a 2-week suspension, and that a warning letter be sent to Hayes. The Respondent, and not the Employer, sent the letter, which made the extraordinary warning that if his attitude and work record do not improve drastically, and the Employer fails to take appropriate action, then the Union will have to remedy the situation. Although Employer Official Dubovsky stated that he makes the final decision on recommendations of the com- mittee as to employee discipline , it is clear that certain committee proceedings , such as those involving cowork- ers' matters, do not come to his attention. It also appears that in such cases, the Union proposes the discipline which is imposed by the Employer. Dubovsky stated that he sometimes accepts the committee 's recommenda- tion as to the extent of discipline to be imposed on the worker. Accordingly, the committee and two of its members- the shop stewards-have exceptional power over disci- plinary action to be imposed upon workers, as shown above, which includes suspension of employees. Long- shoremen Local 27 (Port Angeles), 205 NLRB 1141, 1147 (1973). The special status accorded to the shop stewards by the collective-bargaining agreement, including a $30 bonus, preferential seniority , and mandatory arbitration of their discharge during which time they can remain at work even after being fired, and the vast power of the committee, pursuant to the contract, to "resolve any dif- ferences including qualification of employees in various categories and assessment of damages and collection thereof" all show that the Union acts through the stew- ards and the committee in its activities at the Employer's premises. I accordingly find that the shop stewards and commit- tee members were acting within the scope of their au- thority as persons empowered to recommend and impose discipline upon the employees , in making the threats which I find that they made . I therefore find that they are agents of Respondent , and that the Respondent is re- sponsible for their actions. Eldorado Mfg. Corp., 249 NLRB 646, 648 (1980); Teamsters Local 886 (Lee Way Motor Freight), supra. 4. The alleged threats The complaint alleges that Respondent violated Sec- tion 8(b)(1)(A) of the Act by threatening employees that it would cause their discharge with an object to induce them to support Respondent, and renounce their support for Local 807. The record amply supports such a finding. As set forth above, Respondent Vice President Davis told Albert Ford that McClellan and Crump would be the first ones on his list and that he would fire both- after he saw them engaging in activity in behalf of Local 807; shop steward Freeman told employees that the people interested in getting a new union would lose their jobs; and that the petition signers would be fired; and those who did not accept Respondent would also be fired. President Eason threatened to take care of Currie, the Fords, Mitchell, and Nelson and implied to Jose Mercado that they were probably involved in the peti- tion drive; committeeman Pollack told Murcaria that signing the petition was wrong and that he might have lost his job for doing so; committeeman Robinson pre- dicted that certain employees would be fired "one by one," and that the petition signers would be fired; Eason told Crawford, after the petition was posted, that a lot of employees would be fired, and that he would "get" them; Eason also threatened to "get" all of the petition signers; Levine said that anyone who signed the petition would be fired. WAREHOUSE EMPLOYEES LOCAL 20408 (DUBOVSKY & SONS) Respondent's witnesses denied making these threats.12 I do not credit their denials . It is clear from the evi- dence, and from Eason's own view of the Local 807 campaign, that he harbored great hostility toward Local 807, for attempting to "raid " this, his first shop, and all his other shops, and toward the employees (for support- ing Local 807) who he has known for years . He called the Local 807 campaign and Respondent's reaction a "civil war" pitting brother against brother and family against family. Thus, the threats to fire the Local 807 supporters are all the more believable. The threats of discharge were made to people who testified in a believable, consistent, straightforward way concerning matters which must have had a tremendous impact and made an indelible impression upon them. Moreover, similar threats were made to many workers and coincided with the various events then taking place. For example, just after the petition was posted, Respond- ent threatened to fire the petition signers. The threats are believable, moreover, since certain of the employees who testified are still employed by the Employer , and others, such as Alderman and Murcaria, were called by Re- spondent. I accordingly find that employees were threatened that Respondent would cause their discharge because they supported Local 807 and opposed Respondent. Inasmuch as I have found that the shop stewards and shop committeemen are agents of Respondent, I there- fore find that Respondent is responsible for the actions and statements of Stewards John Freeman and Harold Levine, and shop committeemen Charles Pollack and Robert Robinson Jr. Of course, Respondent is also re- sponsible for the actions and statements of President Matthew Eason and Vice President Davis. It is clear, and I conclude that the threat to employees that Respondent would cause their discharge by the Em- ployer tended to restrain or coerce employees in their Section 7 rights and therefore violated Section 8(b)(1)(A) of the Act. SMI of Worcester, Inc., 271 NLRB 1508, 1525-1526 (1984); Great Plains Beef Co., 241 NLRB 948, 971 (1979); Peninsula Shipbuilders ' Assn., 237 NLRB 1501, 1505-1506 (1978). D. Did Respondent Cause the Transfer and Discharges? The General Counsel alleges that Respondent caused the Employer to transfer Mitchell and discharge him, Crump, Crawford, Albert and Charles Ford, Gore, McClellan, and Nelson because they joined and assisted Local 807 and opposed Respondent, in violation of Sec- tion 8(b)(2) of the Act. Respondent denies that it caused the discharges, and Employer Official Dubovsky testified at the arbitration that the Respondent took no action to cause the transfer or discharges, but rather he (Dubovsky) was solely re- sponsible for those decisions. A threshold question , therefore, is whether Respond- ent caused the transfers or discharges. The Board stated in M. W. Kellogg Constructors, 273 NLRB 1049 at 1050 (1984). 12 Levine did not testify 403 To establish a violation of Section 8(b)(2) of the Act, direct evidence that the union expressly de- manded the discrimination is not necessary . A union can be found to have caused employer discrimina- tion if there is sufficient evidence to support a rea- sonable inference of a union request or a union-em- ployer understanding. "Cause may be established by circumstantial evidence and inferences of such may be drawn where the record warrants," and "it suffices if any pressure or inducement is used by the union to influence the employer." Fischbach/Lord Electric Co., 270 NLRB 856, 875-876 (1984). The Board in Glaziers Local 558 (PPG Industries), 271 NLRB 583, 585 (1984), stated: Section 8(b)(2) of the Act makes it an unfair labor practice for a labor organization , inter alia, to cause or attempt to cause an employer to discrimi- nate against an employee to encourage or discour- age membership in any labor organization. As the Supreme Court stated in Radio Officers v. NLRB, 347 U.S. 17, 40 (1954): "The policy of the Act is to insulate employees' jobs from their organizational rights. Thus, [Sections] 8(a)(3) and 8(b)(2) were de- signed to allow employees to freely exercise their right to join unions, be good , bad, or indifferent members, or abstain from joining any union without imperiling their livelihood." The Board presumes that a union acts illegally any time it prevents an employee from being hired or causes an employee to be discharged because by such conduct a union demonstrates its power to affect the employee's livelihood in so dramatic a way as to encourage union membership among em- ployees. A union may, however, rebut this pre- sumption "by evidence of a compelling and overrid- ing character showing that the conduct complained of was referable to other considerations, lawful in themselves, and wholly unrelated to the exercise of protected employee rights or to other matters with which the Act is concerned." Carpenters Local 1102 (Planet Corp.), 144 NLRB 798, 800 (1963). The Board has also recently stated : "A union's actions may be direct or indirect, obvious or subtle , friendly or threatening." If considered in their full context the union's actions could fairly be taken or were taken by the employer to be an attempt to cause the termination of an employee, or if the actions in fact cause the termi- nation of an employee, a prima facie violation of Section 8(b)(2) has been established. Graphic Arts Local 280 (Blazer-Shopes), 274 NLRB 787 at 789 (1985). In considering these precedents against the voluminous record in this case, I believe that the evidence compels a finding that Respondent caused the transfer of Mitchell and the discharge of the eight employees involved herein. The evidence demonstrates that each of the men was active and vocal in his support of Local 807 and his op- position to Respondent. The record, as set forth above DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD clearly shows Respondent's hostility to Local 807 and to the employees who supported it. The threats made by Respondent to have these men fired were known to the Employer. The Employer also was opposed to Local 807 and favored Respondent. It felt obligated to Respondent and was loyal to Eason. t 3 Respondent made numerous threats that the men would be fired because they supported Local 807, signed cards for it, and signed petitions against Respondent. The threat that all the petition signers would be fired is not diminished by the fact that some, but not all were actual- ly discharged. It thus clearly appears, and I find and conclude, that Respondent was motivated in causing the transfer of Mitchell and the discharges of the eight men because of their opposition to Respondent and their support of Local 807. Romar Carrot Co., 228 NLRB 369, 375 (1977); International Packings Corp., 221 NLRB 479, 484 (1975). E. The Discharges 1. Cresta Crump The complaint alleges that Respondent caused the Em- ployer to discharge Cresta Crump and failed and refused to process his grievance concerning his discharge be- cause he joined and assisted Local 807 and opposed Re- spondent. Crump was employed by the Employer for nearly 9 years. He signed a card for Local 807 on 31 January 1984, the first day of the campaign, and he signed the pe- tition in February which stated that he did not want Re- spondent to represent him, and solicited others to sign it. Crump also gave Local 807 cards to other employees while sitting in a car with Local 807 organizers . Employ- ee Fugate saw Union Vice President Davis looking at them in the cars, and later Davis told Albert Ford that he saw Crump sitting in a car with Local 807 men, and that he would be among the first fired. Committeeman Robinson identified Crump as being "too open with the cards." Davis told Charles Ford that Crump was "start- ing trouble," and he would see how smart Crump was. Crump was outspoken at the February contract pro- posal meeting in demanding that the employees receive the $50 raise. After the vote to insist on the raise, Super- visor Gemelli told him he heard that a vote was taken and added that if the workers tried to get the raise "they would get us." On 29 February, Crump received a letter of discharge. That day, committeeman Robinson reminded an employ- ee that Crump was showing the cards around the shop, and boasted that he had said that they would be fired "one by one." Crump attended the 8 March union meeting, and voted that Respondent should no longer represent them. Four days later he was fired for absenteeism . That day, '3 Its president, Benjamin Dubovsky, testified that just prior to April 1981 the employees struck for 4 to 5 weeks, and the Employer lost $350,000, many customers and was on the verge of closing. Dubovsky was appreciative to Eason, who although he was in Federal custody of U.S. Marshals at the time, insisted that he attend negotiations , and as a result of his presence the strike was settled and the company saved Alan Dubovsky told him that he did not want to fire him as he was a good worker. Crump was told by Eason to file a grievance, and he did so. The grievance stated that his absences were sup- ported by documentation which was seen by his supervi- sor. Alan Dubovsky denied the grievance, relying on the contract's clause providing for discharge for "chronic absenteeism," where an employee has been absent for 2 days in a calendar month , except for illness or other good cause. Thereafter, Crump never heard from the Union re- garding his grievance, and he was never asked for his version of the absences. At an unemployment hearing Alan Dubovsky testified that Crump was absent on 20, 27, and 29 February. Crump testified that on 20 February, there was a flood in his basement. He notified Gemelli who said "okay." The next day he came to work and told Gemelli. He tes- tified generally that he was absent more often than the average employee and that he had an attendance prob- lem for at least 5 years, during which he was absent about 2 to 3 times per month . He attributed his failure to be at work to the fact that he had custody of his children and often he had to bring his children to school, the doctor, and to family court . He also was absent because he had to pay his rent or look for an apartment. In these instances he told Gemelli who approved. However, he received a written warning, on 25 May 1983, for exces- sive absenteeism, and on 4 October 1983, received a second and final warning. Eason testified that he believed that the Employer was justified in firing Crump. It is clear that Respondent caused his discharge. Thus, he was the subject of a threat by Union Official Davis that he would be fired because he sat in a car with Local 807 men. On the day he was fired , committeeman Robin- son boasted of his fulfilled prediction that he would be fired. Alan Dubovsky told him that he did not want to fire him, and that Respondent told him to discharge him. Moreover, it is clear that the Employer has not strictly enforced the contractual provisions concerning absentee- ism, and Crump's excessive absenteeism had been over- looked by the Employer for years. In this connection, Supervisor Gemelli told employee Richards after Crump's discharge, that the attendance records of other employees were just as bad as that of Crump 's, but that Respondent "protected" certain employees , and that was what it and the Employer wanted to do. Respondent's motivation in causing Crump's discharge is also clear given Crump's open advocacy of Local 807 and his opposition to Respondent. Taking into consider- ation the numerous threats to fire Local 807 supporters, I find that the evidence is clear that Respondent's causa- tion of the discharge was in violation of Section 8(b)(2) and (1)(A) of the Act. I cannot, however, find that Respondent unlawfully failed and refused to process his grievance concerning his discharge. Respondent's president asked him to file a grievance and he did so, setting forth in writing his rea- sons for grieving his firing . The grievance was either presented to or written by Shop Steward Harold Levine, WAREHOUSE EMPLOYEES LOCAL 20408 (DUBOVSKY & SONS) who presented it to Employer Official Alan Dubovsky. Dubovsky denied the grievance on 21 March 1984, and set forth his reason in writing on the grievance form. In his grievance, Crump requested that the matter be taken to arbitration, and it was. The arbitrator upheld his discharge. Although, as I find later, the arbitration award should not be deferred to, I nevertheless find that Re- spondent did not violate the Act, as alleged in the com- plaint by unlawfully failing and refusing to process his grievance. 2. Hoyt McClellan McClellan had been employed by the Employer for 13-1/2 years. He signed a card while sitting in a car near a vehicle in which Local 807 organizers were stationed. Union Vice President Davis said that he saw McClellan doing this and he would be among the first fired. Com- mitteeman Robinson remarked that he was "too open with the cards" and predicted that he would be dis- charged soon. McClellan signed a petition against Re- spondent and solicited others to sign it. He also signed the petition that was posted in the warehouse, and was the subject of threats by Respondent to fire the petition signers. Davis also identified McClellan as a troublemak- er who would see how smart he was. McClellan was outspoken at the 30 March contract ratification meeting in opposition to the new contract and in favor of the unpaid $50 raise. Respondent's officials heard that McClellan made certain alleged threats toward employ- ees concerning Local 807, and those officials solicited the employees involved to file grievances against McClellan . Such grievances included (a) an alleged racial incident involving McClellan and Joseph Murcaria in which McClellan threatened to hit Murcaria . On 29 Feb- ruary he was in civil court and so advised him with a baseball bat in the summer of 1983, (b) an alleged threat by McClellan to beat up Murcaria if he did not join the "A team," which was taken to mean Local 807 support- ers, and (c) alleged incidents in which committeeman Robinson was told by McClellan that if he did not get off the committee he would be harmed, and continuously threatened him, and at times cleaned his fingernails with a knife. McClellan denied these incidents. Employee Albert Ford testified that on the morning of McClellan's discharge , he heard Eason tell Steward Freeman to get McClellan for a committee meeting, adding he did not care what the committee did with him. McClellan refused to attend the meeting, calling it a "kangaroo court," and suggested that the committee take the matter up with the Board. The committee recommended that McClellan be fired and Eason took that recommendation to Alan Dubovsky who approved it. On the day of the meeting, committee- man Robinson told Crawford that "the man" told him that he would fire anyone who harassed him. Robinson reported to Benjamin Dubovsky that the day before, he (Robinson) belched at McClellan, who rolled his eyes and played with a knife. Dubovsky said he would have McClellan fired for that. Regardless, it was Eason who directed that the committee meet as to McClellan, and Alan Dubovsky testified at the arbitration that McClellan was the only one of the eight men who the Union said it 405 wanted fired. Later, Robinson reminded Crawford that he told him the men would be fired "one by one." This was a reference to Crump's firing 1 month earlier, as to which Robinson told him that Crump and McClellan were "too open with the cards," and that they would be discharged "one by one." On 10 April, McClellan was given a letter which stated that he was fired for verbal threats and endanger- ment to fellow workers . He did not file a grievance. The Union took his case to arbitration and the discharge was upheld. There is direct evidence that Respondent wanted McClellan fired. Alan Dubovsky stated that Eason wanted him fired. Thus, I find that the Union caused his discharge. The motivation for the firing is equally clear. He was the subject of threats by Respondent's officials and agents that he would be fired because of his activi- ties in behalf of Local 807 and his opposition to Re- spondent. The alleged threats and incidents in which he was in- volved, even if true, were no more serious than others, committed by other employees , with less serious, or no consequences. Moreover, other alleged threats made by him in the past were ignored by other workers, who did not notify Respondent or Employer officials about them and did not file grievances as to them . I received the dis- tinct impression during the hearing that the workers, on both sides of this contest, were "no-nonsense" people who were not timid as to voice or conduct , and the at- mosphere in the shop was not of a Sunday school class. The alleged threats, even if true, were only raised to the level of a grievance at the insistence of Respondent's of- ficials, who sought to document McClellan's alleged wrongdoing. I accordingly find and conclude that Respondent's causation of the discharge violated Section 8(b)(2) and (1)(A) of the Act. 3. Raymond Mitchell Mitchell was employed by the Employer for 24 years, 16 of them as a driver. Prior to the events at issue here Mitchell was criticized by Employer and Respondent of- ficials about his performance as a driver. Mitchell was a leader of the pro-Local 807-anti-Re- spondent campaign. He signed a card for Local 807 and initiated the petition drive which prompted Respondent to promise to cause the discharge of all the petition sign- ers. He was outspoken at meetings, insisting upon the $50 raise and denouncing the contract and Eason. Shortly after, the complaints about his work intensified. On 13 March 1984, a shop committee meeting was held regarding Mitchell 's work performance, at which the committee asked him to accept a position as an order picker. He agreed and said that he did not care what po- sition he held as long as his pay remained the same and the harassment stopped. The committee then recom- mended his transfer to inside-outside warehouseman. The memo of the meeting stated that the shop committee be- lieved that Mitchell "is unqualified to be a truck driver." That day, employee Albert Ford asked Supervisor Ge- melli what he was trying to do to Mitchell . Gemelli re- 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plied that it was not him-that it was his Union doing all these things. Committeeman Robinson told Crawford that Mitchell was harassed because he demanded the $50 raise; and that the committee was told what to do by Eason and Dubovsky. On his first day as an order picker, Mitchell was told by Union Official Davis that Respondent made a mistake in not meeting with the men 6 months after the raise was waived. He asked Mitchell to give the Union another chance, lamenting that in the past they were friends, but now they were "at each other's throats." Mitchell re- fused, saying that the Union "threw us to the dogs." Thereafter, Mitchell signed the petition which was posted in the shop; distributed cards for Local 807 in the warehouse; and was outspoken against Respondent and Eason at the 17 and 30 March union meeting. Mitchell asked to be assigned as a hi-lo operator. Steward Levine told him that Alan Dubovsky wanted him to be an order picker. Alan Dubovsky told employee Richards that Mitch- ell's demotion to order picker did not bother Dubovsky because he knew that in time he would be able to fire Mitchell because he could not pick enough orders. Mitchell picked orders for less than 1 month, and was then fired for not picking enough. During that time he was constantly warned by the shop stewards that Alan Dubovsky was complaining that he was not productive. Mitchell defended his output, saying that other pickers cheated by (a) selecting out of turn, easier orders to pick and (b) copying from drivers' bills the orders the drivers picked. Steward Levine told Mitchell that he did not expect him to pick as much as the others-he expected him to pick more. In early April, Mitchell was told by Steward Freeman that Alan Dubovsky wanted to fire him because he was not picking enough orders, and warned him that if his productivity did not improve in 1 week he would be dis- charged. Mitchell's performance did improve, but never- theless, a shop committee meeting was held as to his work. Eason told a committeeman to get Mitchell for the meeting, adding that he did not care what the committee did with him. Mitchell refused to attend the meeting, telling Steward Freeman that the committee was not his representative and the men did not accept the Union. In- stead, Mitchell spoke to Alan Dubovsky alone and told him that he would not attend the committee meeting. Dubovsky replied that there was a union contract, and that it had to go the way he (Dubovsky) said. Mitchell answered that the men did not accept Respondent. After the committee meeting, Mitchell received a letter dated 10 April, discharging him for "lack of pro- ductivity." Mitchell asked for a grievance form from Steward Freeman, who said that Eason told him not to give non- employees anything. Mitchell sent two letters to Eason, outlining his griev- ance and asking for representation . Eason sent two let- ters to Mitchell, citing the performance records, and de- nying the grievance. Nevertheless, his grievance was taken to arbitration by Respondent, where his discharge was upheld. In the past, employees who were fired for low produc- tivity were reinstated almost immediately through Re- spondent's assistance. After Mitchell was fired, Eason told Albert Ford that Mitchell was demoted because he would not file a griev- ance and would not attend the committee meeting. I believe that the evidence supports a finding that Re- spondent caused Mitchell 's transfer and discharge. He was at the vanguard of the pro-Local 807-anti-Respond- ent crusade. He was outspoken in his efforts to obtain representation by Local 807 and his denunciation of Eason and Respondent. These activities, which were well known to Respondent, provoked great hostility in the union officials toward him. As to his transfer to order picker, the complaints about Mitchell's driving performance had gone on for years and Respondent had always come to his aid when disci- pline was taken against him. Supervisor Gemelli said that Mitchell was transferred because of the Union, and com- mitteeman Robinson said that Mitchell was harassed be- cause he demanded the $50 raise, and the committee was given its orders by Eason and Dubovsky. Thus it is clear that Respondent caused his transfer. Thereafter, Mitchell continued his activities in behalf of Local 807 and against Respondent , despite a request by Union Official Davis that he give it another chance. He was fired after only 1 month as a picker . Mitchell's picking performance improved after he was warned, but nevertheless he was discharged. Eason's statement to the committee that he did not care what it did with Mitchell, was in contrast to the professed purpose of the commit- tee-to save workers' jobs, and to reduce the discipline sought to be imposed by the Employer. The motivation for Respondent 's causation of the transfer and discharge is equally clear . Mitchell, a gener- al in the "civil war" described by Eason, was of course the subject of the numerous threats to fire the card and petition signers, and supporters of Local 807. Respond- ent's hostility toward Local 807 supporters is quite clear. I accordingly find and conclude that Respondent 's causa- tion of the transfer and discharge violated Section 8(b)(2) and (1)(A) of the Act. 4. The drivers On 1 June, the Employer discharged Frisson Craw- ford, Albert Ford, Charles Ford, Edward Gore, and Frank Nelson. They were all fired for having allegedly improper drivers' licenses. As set forth above, on about 21 February, a letter from Mendon Leasing Corp. was posted at the Employ- er's premises . The Employer leased its vehicles from Mendon, and the letter stated that drivers must have New York Class 3 or higher licenses, and that "the only exception . . . would be an out of state resident may have an out of state license." At that time, some of the drivers had Class 4 New York licenses; were New York residents with out-of-state licenses; or did not have licenses at all. In the past, some of these drivers had shown employer and Mendon offi- cials their now invalid licenses, and no action was taken by such officials. Notwithstanding the notice, none of the WAREHOUSE EMPLOYEES LOCAL 20408 (DUBOVSKY & SONS) drivers at that time attempted to obtain a New York Class 3 license. As set forth above, on 15 March certain employees, including all five drivers alleged, signed the petition against Respondent which was posted in the warehouse. Also as detailed above, Respondent's officials threatened to fire all the petition signers . Committeeman Robinson told Crawford shortly after that some drivers would be fired because they did not have the correct li- cense. Crawford suggested that they should be trans- ferred to helpers or pickers, in which driving is not re- quired. Robinson replied that Eason said that anyone on the "list," and all drivers on the "list" would be fired if they did not have the proper license. Eason told Craw- ford that he looks out for the people who look out for him, and that since he (Crawford) was a friend of Eason, he did not want Crawford to get "caught up in the mess," because a lot of people would be fired. Eason added that "they" were out to get him, but he would "get them first." Later Eason approached Crawford and told him that, as a friend, he wanted to talk to him about his license, adding that he heard that his license was not proper. Crawford said he had a valid license . Eason said that he mentioned it because, as a friend, he did not want Crawford to get "caught up in the middle of a mess."14 Steward Freeman told Albert Ford he would fire the pe- tition signers who had New Jersey licenses. As set forth above, on 30 March the employees re- fused to ratify the new contract, and on 2 April, Local 807 filed a petition to represent the employees. On 4 April, the Employer posted a notice which stated that all drivers must have valid licenses by 31 May. On 6 April, Eason came to the Employer's premises and asked Charles Ford if he knew whether Local 807 was strict on drivers' licenses, adding that he knew that certain employees were using Wardell Currie's New Jersey address as their address on their license . t s Eason also said that there were men outside laughing and talk- ing, who "think they are so slick," but that he would "get them," and they would see how slick they were. None of the five drivers made efforts to obtain Class 3 New York licenses, until May. Nelson took, but failed the written test . On about 25 May, Nelson told Alan Du- bovsky, Supervisor Gemelli and Steward Freeman that he failed the test. He told Freeman that he had another test appointment . Freeman replied that Nelson was there- by "protected" if he was fired. Albert Ford and Crawford were told by Gemelli in May that their New Jersey licenses were invalid. Ford had a New Jersey license since 1973. He lived in New York from 1973 to 1983. In September 1983, he moved into his uncle's house in New Jersey, and Ford told Ge- melli he already lived in New Jersey. Crawford, a New York resident, said that he would rent a room in New Jersey and he took steps to do so . Gemelli said that that should be all right.16 Ford later gave Gemelli a rent re- ceipt as proof of New Jersey residence. 14 Crawford was a resident of New York but had a New Jersey license and thus had an improper license. 15 Crawford and Gore used Currie's address on their licenses. 16 Gemelh denied telling any employee that his license was all right I reject this denial, as he was apparently in a position to request proof of license and residence and approve the license 407 On 18 May, the Employer sent letters to the drivers, at the address set forth on their licenses, requesting proof of residence. Many of the letters were returned by the U.S. Postal Service. At about that time, Gemelli showed Gore a list of people who had invalid licenses. While he did so, Albert Ford showed Alan Dubovsky his rent re- ceipt and Dubovsky told Gemelli to take him off the list. Gemelli told Gore to bring him proof that he lived in New Jersey. On 22 May, Gore gave Alan Dubovsky a New Jersey rent receipt, vehicle registration and a copy of his New York lease renewal form, which indicated that his apartment lease was due to expire shortly. Du- bovsky made copies of the documents. On 31 May, Dubovsky told Gore that he never gave him the proof he requested. Gore reminded him that he did so the previous week. Dubovsky said : "yes, you are right. I forgot." On 1 June, Albert Ford heard Alan Dubovsky tell Eason that he could "have some of them." Eason re- plied, "I want them all." Later that day, Crawford, Albert and Charles Ford, Gore and Nelson were given letters which stated that: A valid Class 3 or Class 1, New York State Driv- er's License, is required for the position of Chauf- feur at this firm. Although, given sufficient warning you have not complied with this requirement. Therefore, I regretfully inform you, that as of today, June 1, 1984, your employment with Du- bovsky & Sons, has been terminated. When Gemelli gave Crawford the letter, he asked what it was. Gemelli told him that his "buddies" were "messing" with him . Eason was present when the letters were distributed. He laughed when Albert Ford showed his license to him, but urged the men to file a grievance the following workday. Eason compared them to a group of employees who were fired in the 1970s, "a group by yourselves." 17 Shortly after, Albert Ford returned to the warehouse and asked Supervisor Gemelli why he was fired. Gemelli replied that the Union has "something to do with this. It's not management-it's the Union." Gemelli also told Richards that anyone who signed the petition and were Local 807 supporters would be fired because they did not have a proper license, but the people who did not support Local 807 would be retained. He added that the Employer and the Union had kept three drivers who did not have proper licenses, and fired six experienced driv- ers because of the petition , and because they tried to bring in Local 807 and oust the Union. After the 1 June discharges, three drivers were re- tained: Stanley Jenkins, Thomas Petteway, and Robert Robinson Sr. Jenkins took the written test between April and June 1984. In February 1985, he was asked by Alan Dubovsky if he obtained the required Class 3 license . Jenkins ex- 17 This was an apparent reference to the "Brownsville Five," a group of employees described by Benjamin Dubovsky as five "hoods" who were "arrogant, destructful, did anything to disrupt the operation, insult- ed customers." 408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plained that he had an August 1984 road test appoint- ment but he did not take the test then because of leg problems. Dubovsky asked him to show him proof that he passed the written test and he did. Jenkins took the road test in March 1985 and received his license that month. Petteway took a road test after 1 June 1984. He was issued a Class 3 license on 23 July 1984. Robinson had a suspended New Jersey license. Du- bovsky told him he must get a New York license. He showed Dubovsky correspondence with the New Jersey department of motor vehicles . On 12 July 1984, he re- ceived a New Jersey permit, and after the summer of 1984 he received a permanent New Jersey license. By May 1985, Robinson had still not passed the New York test although he had taken it several times. Jenkins and Petteway signed the petition against Local 20408, but Robinson was identified as being an active supporter of the Union. In addition, Petteway signed a card for Local 807 on 19 March 1984. Pursuant to the settlement agreement with the Em- ployer, the five drivers were reinstated in April 1985. On about 1 May 1985 Shop Steward Freeman told Albert Ford that he "hated" that Eason caused the men to be fired, adding that Eason wanted to get rid of them because they signed the petition and supported Local 807. The evidence is clear that Respondent caused the dis- charge of the five drivers and was motivated in doing so because of their support for Local 807 and their opposi- tion to Local 20408. Thus the requirement that Class 3 New York licenses be obtained was only first made after the Local 807 cam- paign was underway, notwithstanding that no complaints were made about the drivers' licenses before . Shortly thereafter, Respondent's officials threatened to fire the petition signers, with specific threats being made to the petition signers who did not have proper licenses. Eason made a direct reference to Local 807 by asking whether it was "strict" on licenses, adding that he knew that cer- tain drivers were using an improper address for their li- cense. Gemelli and Steward Freeman told drivers that the discharges were effected because of employees' sup- port for Local 807. Moreover, the Employer's accept- ance of proof of New Jersey residence was later ignored. Although two petition signers with improper licenses, Jenkins and Petteway, were retained, it does not appear that their support for Local 807 was as vocal or as active as the other drivers . These two, and Robinson were re- tained notwithstanding their failure to obtain Class 3 New York licenses by 1 June. Moreover, Jenkins re- ceived his license in March 1985 and Robinson had not received his even by May 1985, nearly 1 year after the 1 June 1984 time limit set for obtaining such licenses. Such disparate treatment, in a matter of "concern" to Dubovsky can only lead to the conclusion that Respond- ent was involved with the decision to cause these three not to be fired. In fact, Alan Dubovsky admitted that Eason asked for delays for some unidentified drivers be- cause they were having difficulty obtaining a proper li- cense. I accordingly find and conclude that Respondent's causation of the discharges of Frisson Crawford, Albert Ford, Charles Ford, Edward Gore, and Frank Nelson violated Section 8(b)(2) and (1)(A) of the Act. F. The Grievance Procedure and Deferral to the Arbitrator's Decision None of the discharged drivers filed a grievance. They did not believe that they would be represented fairly by Respondent. Nelson said that Eason was present when he was fired and did nothing to help him , and he and Charles Ford believed that since they signed the petition they would not be represented by the Union. Nevertheless, on 19 June, Respondent sent a letter to the fired employees regarding arbitration of their dis- charges. Your Union has filed for Arbitration on your behalf, concerning your termination of your em- ployment at Dubovsky & Sons, Inc. Grocery Divi- sion. Please advise us whether or not you wish to par- ticipate and be represented by Local 20408. If we do not hear from you within 5 days upon receipt of this letter we will assume that you do not wish to participate and we will therefore , schedule the Ar- bitration omitting you from the arbitration. Nelson, Charles Ford, Gore and Mitchell consulted Local 807 Attorney J. Warren Mangan. He advised that it was up to them to decide whether they wanted to attend the arbitration . They said that they did not believe that they would be represented fairly, and asked that he speak for them there. On 26 June, Mangan sent a letter to Respondent which stated that Albert Ford, Charles Ford, Gore, McClellan, Mitchell, and Nelson would agree to Respondent's arbi- tration of their discharges , and wanted Respondent to, among other things: (a) fully investigate their grievance before the arbitra- tion; (b) meet with the grievant and with an attorney from Mangan's office to prepare for the arbitration; (c) have a transcript made of the hearing; and (d) authorize the grievants' personal attorney to be present at the arbitration. On 2 July, Respondent advised Mangan that the arbi- tration would be held on 9 July . Mangan was out of town and his associate requested that it be postponed until his return. On 11 July, the consolidated complaint in this matter issued, alleging, in relevant part, that Respondent (a) threatened employees that it would cause their discharge by the Employer in order to induce them to support Re- spondent and abandon their support of Local 807 and (b) caused the transfer of Mitchell ; the discharge of seven employees; and the layoff of two employees , because they joined Local 807 and opposed Respondent. On 12 July, Mangan wrote to Respondent's attorney, Craig Livingston. Mangan stated that in view of the Board complaint against Respondent he believed that Respondent could not fairly represent the grievant, and WAREHOUSE EMPLOYEES LOCAL 20408 (DUBOVSKY & SONS) he would recommend that the grievant not proceed to arbitration. On 31 July, Livingston sent a letter to Crawford, Albert and Charles Ford, Gore, McClellan, and Nelson. The letter advised that his office would represent them in the arbitration and the Union would seek reinstate- ment and full backpay . He asked them to meet with him on 3 August, to prepare for the hearing, which was scheduled for 14 and 16 August. He warned that if they did not appear, they may be ineligible for reinstatement or backpay. He concluded by saying that Respondent "shall offer all evidence concerning your discharge, in- cluding evidence which is alleged in the complaint ...." None of the employees received the letter in time to attend the 3 August meeting, and Crump and Mitchell did not receive that letter. Later, Albert and Charles Ford, Gore, and McClellan met with Mangan, and told him that they did not want Eason to represent them at the arbitration . They told him about their discharges and the threats to fire the pe- tition signers. Mangan expressed his belief that the Re- spondent would not represent them fairly and offered to take care of the matter, suggesting that they not attend the arbitration. On 10 August, Mangan wrote a letter to Union Attor- ney Livingston which stated that he met with the Fords and Gore, who told him that they and McClellan do not believe that they can be adequately and fairly represent- ed by the Union in any grievance proceeding, and that they "intend to seek relief through the NLRB." Crawford, Albert and Charles Ford, Gore, and Nelson received a letter from Respondent which requested that they come to the Employer's premises on 13 August to discuss the arbitration. On 13 August, Albert Ford and Nelson met separately with Eason, Davis, and Livingston. The latter three re- fused to meet with Mitchell who had come without invi- tation. Livingston asked the two men to sign a statement, in part, acknowledging, that (a) Respondent filed a griev- ance on their behalf; (b) the Board issued a complaint against Respondent and the Employer; (c) they can have an attorney of their choice represent them or, if not, Re- spondent will represent them; (d) the arbitration will be held on 14 August; and (e) they did not have to speak with him and if they did not Respondent would still rep- resent them at the arbitration. They refused to sign the statement. On 13 August, Respondent notified Mangan that it would proceed to arbitration the next day. It advised Mangan that Respondent was willing to accept the con- ditions set forth in his 26 June letter, and that the arbitra- tion would proceed "with or without the participation of the employees." At the arbitration hearing, arbitrator Jerome Katz, finding none of the dischargees present, adjourned the matter to 17 August . In the interim, Eason and former shop steward Henry Wideman served the arbitrator's letter, dated 14 August, on Crawford, Charles Ford, Gore, and Nelson. The letter stated that the hearing would be held on 17 August, and a decision would be made even if they did not appear. Eason told Crawford 409 and Nelson that they would try to get them reinstated if they attended the arbitration. At the resumption of the arbitration hearing on 17 August, none of the dischargees appeared. Mangan ap- peared briefly and identified the men who contacted his office as Crawford, the Fords, Gore, McClellan, Mitch- ell, and Nelson . He stated that they did not believe that Respondent would adequately represent their interests. The arbitration proceeded nevertheless and evidence was taken concerning the eight discharges. On 3 October, arbitrator Katz issued a decision and award in which he found that the Employer had just cause to discharge Crawford, Crump, Albert Ford, Charles Ford, Gore, McClellan, Mitchell, and Nelson. Respondent argues that the arbitrator's decision should be deferred to. The General Counsel disagrees, and argues that deferral is not appropriate because (a) the in- terests of the employees are in conflict with the interests of both parties to the collective-bargaining agreement; (b) Respondent failed to prepare for the arbitration; and (c) made an ineffective presentation at the arbitration hearing. I find it unnecessary to discuss the arguments in (b) and (c). In Olin Corp., 268 NLRB 573 (1984), the Board adopt- ed a new standard for implementing its Spielberg' e policy of deferring unfair labor practice proceedings to arbitrators' decisions that are asserted to have resolved issues subsequently presented to the Board. The Spielberg standards were reaffirmed . These require, for deferral, that the arbitral proceedings appear to have been fair and regular, all parties have agreed to be bound, and the de- cision of the arbitrator is not clearly repugnant to the purposes and policies of the Act. In a companion case, United Technologies Corp., 268 NLRB 557, 560 (1984), the Board stated that it would adhere to its policy of refusing "to defer where the inter- ests of the union which might be expected to represent the employee filing the unfair labor practice charge are adverse to those of the employee ...." There can be no doubt here that there is a conflict of interests between the Respondent and Employer on the one hand, and the grievants on the other. The record is replete with instances where Respondent and the Em- ployer expressed their hostility toward the dischargees because of their support for Local 807 and their opposi- tion to Respondent. I have found numerous instances of unlawful threats to discharge employees because of their union affiliations, and I have also found that Respondent unlawfully caused the transfer of Mitchell and the dis- charges of him and seven others because of such reasons. In these circumstances I can only find that there was an actual conflict of interests between Respondent, the Employer, and the discharges, which renders deferral to the arbitration decision inappropriate . Laborers Northern California Council (Baker Co.), 275 NLRB 278 at 288 (1985); Servair, Inc., 265 NLRB 181, 183 (1982). The Board in Hendrickson Bros., 272 NLRB 438 (1985), noted that the employees there, as certain of them here, "declined the union's offer to represent them 18 Sp:elberg Mfg Co, 112 NLRB 1080 (1955) 410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD because . . . they distrusted the union and doubted whether it would properly represent them in the arbitra- tion proceeding." The Board further stated: Given this background, in which both parties to the contract are plainly opposed to the employees' in- terests, we conclude that deferral to arbitration is inappropriate. The Board addressed a similar situa- tion in Kansas Meat Packers, 198 NLRB 543, 544 (1972), stating as follows: [W]e conclude that it would be repugnant to the purposes of the Act to defer to arbitration in this case as to do so would relegate the Charging Parties to an arbitral process authorized, adminis- tered, and invoked entirely by parties hostile to their interests. I accordingly find and conclude that deferral to the ar- bitrator's decision is inappropriate. CONCLUSIONS OF LAW 1. The Employer, Dubovsky & Sons, Inc. and Du- bovsky Beer Distributors, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union Local 20408 , United Warehouse, Industrial and Affiliate Trades Employees Union, and Truck Drivers Local Union 807, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. By threatening employees of the Employer that Re- spondent Union would cause their discharge by the Em- ployer, with an object to induce the employees and other employees of the Employer to support and assist Re- spondent Union, and to renounce their adherence to, and to abandon their support of, and assistance to Local 807, Respondent Union Local 20408 violated Section 8(b)(1)(A) of the Act. 4. By attempting to cause and causing the Employer to transfer Raymond Mitchell from the position of truck- driver to the position of order picker, and to reduce the pay of Raymond Mitchell, because he joined and assisted Local 807 and opposed Respondent Union Local 20408, Respondent violated Section 8(b)(2) and (1)(A) of the Act. 5. By attempting to cause and causing the Employer to discharge the following employees because they joined and assisted Local 807 and opposed Respondent Union Local 20408, Respondent violated Section 8(b)(2) and (1)(A) of the Act: Frisson Crawford Edward Gore Cresta Crump Hoyt McClellan Albert Ford Raymond Mitchell Charles Ford Frank Nelson 6. Respondent has not violated the Act by failing and refusing to process the grievance of Cresta Crump as al- leged in the complaint. REMEDY Having found that the Respondent has violated Sec- tion 8(b)(2) and (1)(A) of the Act, I shall recommend that it cease and desist therefrom and take certain affirm- ative action designed to effectuate the purposes and poli- cies of the Act. Pursuant to the settlement agreement with the Em- ployer, Frisson Crawford, Albert Ford, Charles Ford, Edward Gore, and Frank Nelson were reinstated to posi- tions with the Employer, and the Employer has paid 50 percent of the backpay liability. Also pursuant to the set- tlement agreement, Cresta Crump, Hoyt McClellan, and Raymond Mitchell waived reinstatement, and the Em- ployer has paid 50 percent of the backpay liability due them. I shall accordingly recommend that the Respondent be ordered to pay 50 percent of any loss of earnings and other benefits plus interest from the date of the dis- charges of Crawford, Albert and Charles Ford, Gore, and Nelson to the date of their reinstatement by the Em- ployer, and I shall also recommend that the Respondent be ordered to pay 50 percent of any loss of earnings and other benefits plus interest from the date of transfer of Raymond Mitchell, and the discharges of Crump and McClellan, to the date upon which they waived rein- statement. The backpay amounts are to be computed in the manner set forth in F. W Woolworth Co., 90 NLRB 259 (1950), and with interest as set forth in Isis Plumbing Co., 138 NLRB 716 (1962) and Florida Steel Corp., 231 NLRB 651 (1977). On the basis of these findings of fact and conclusions of law and the entire record, I issue the following rec- ommended t e ORDER Respondent Union Local 20408, United Warehouse, Industrial and Affiliate Trades Employees Union, its offi- cers, agents, and representatives, shall 1. Cease and desist from (a) Threatening employees of Dubovsky & Sons, Inc. and Dubovsky Beer Distributors, Inc., that Respondent Union Local 20408 would cause their discharge by the Employer, with an object to induce the employees and other employees of the Employer to support and assist Respondent Union, Local 20408, and to renounce their adherence to, and to abandon their support of, and assist- ance to Local 807, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica. (b) Attempting to cause and causing the Employer to transfer employees or reduce their pay because they joined and assisted Local 807 and opposed Respondent Union Local 20408. 19 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. WAREHOUSE EMPLOYEES LOCAL 20408 (DUBOVSKY & SONS) (c) Attempting to cause and causing the Employer to discharge employees because they joined and assisted Local 807 and opposed Respondent Union Local 20408. (d) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) In the manner set forth in the remedy section, make whole the following employees for 50 percent of any loss of earnings and other benefits plus interest from the date of their discharge to the date of their reinstate- ment by the Employer: Frisson Crawford Edward Gore Albert Ford Frank Nelson Charles Ford (b) In the manner set forth in the remedy section, make whole Raymond Mitchell, from the date of his transfer, and Cresta Crump and Hoyt McClellan from the date of their discharges, for 50 percent of any loss of earnings and other benefits plus interest, to the date upon which they waived reinstatement. (c) Remove from its files, and ask the Employer to remove from the Employer's files, any reference to the unlawful transfer and discharges and notify the employ- ees in writing that it has done so and that it will not use the transfer or discharges against them in any way. (d) Post at its business office copies of the attached notice marked "Appendix."20 Copies of the notice on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (e) Sign and return to the Regional Director sufficient copies of the notice for posting by Dubovsky & Sons, Inc. and Dubovsky Beer Distributors, Inc., if willing, at all places where notices to members are customarily posted. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 20 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 " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 411 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT threaten employees of Dubovsky & Sons, Inc. and Dubovsky Beer Distributors, Inc., that we would cause their discharge by the Employer, with an object to induce the employees and the employees of the Employer to support and assist Respondent Union Local 20408, and to renounce their adherence to, and to aban- don their support of, and assistance to Local 807, Inter- national Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. WE WILL NOT attempt to cause or cause the Employer to transfer employees from one position to another or reduce the pay of employees because they joined and as- sisted Local 807 and opposed Respondent Union Local 20408. WE WILL NOT attempt to cause or cause the Employer to discharge employees because they joined and assisted Local 807 and opposed Respondent Union Local 20408. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make whole the following employees for 50 percent of any loss of earnings and other benefits plus in- terest from the date of their discharge to the date of their reinstatement by the Employer: Frisson Crawford Edward Gore Albert Ford Frank Nelson Charles Ford WE WILL make whole Raymond Mitchell , from the date of his transfer, and Cresta Crump and Hoyt McClel- lan from the date of their discharges , for 50 percent of any loss of earnings and other benefits plus interest, to the date upon which they waived reinstatement. WE WILL remove from our files, and ask the Employ- er to remove from the Employer's files, any reference to the unlawful transfer and discharges and notify the em- ployees in writing that we have done so and that we will not use the discharges against them in any way. UNION LOCAL 20408, UNITED WARE- HOUSE, INDUSTRIAL AND AFFILIATE TRADES EMPLOYEES UNION