J Coty Messeager Service, Inc

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J Coty Messenger Service, Inc and Local 38-A, Service Employees International Union, AFL- CIO Case 2-CA-18046 24 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 18 July 1983 Administrative Law Judge Harold B Lawrence issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified 2 The judge found, and we agree, that a bargain- ing order is warranted to remedy the Respondent's extensive and pervasive unfair labor practices We find, as did the judge, that the Union has signed au- thorization cards from a majority of the Respond- ent's employees on 22 April 1981, 3 and that the Respondent repeatedly violated Section 8(a)(1) of the Act by implementing a bonus plan on 6 May and promising increased benefits to discourage em- ployees from supporting the Union, by threatening to close its business if the Union won the election, by threatening to discharge employees for support- ing the Union, by interrogating employees regard- ing their union activities, and by influencing a former employee to ignore a validly served Board subpoena The judge also found, and we agree, that the Respondent violated Section 8(a)(3) and (1) of the Act when on 24 April it discharged employee Anthony Caravello for his activities on behalf of the Union In finding that a bargaining order is the appro- priate remedy in this proceeding, we wish to ex- plain in more detail why this remedy is warranted by the circumstances here In determining whether a bargaining order is warranted to remedy the Respondent's misconduct ' 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 Or 1951) We have carefully examined the record and find no basis for reversing the findings 2 We modify the recommended Order to substitute Anthony Caravel lo s name for that of Joseph Dunst in par 2(b) of the recommended Order 3 All dates are in 1981 unless otherwise specified in this case, we apply the test set out in NLRB v Gissel Packing Co, 395 U S 575 (1969) There, the Court described two types of situations where bar- gaining orders are appropriate (1) "exceptional" cases marked by "outrageous" and "pervasive" unfair labor practices, and (2) "less extraordinary" cases marked by "less pervasive" practices 4 The Court thus approved the Board's use of a bargain- ing order in "less extraordinary" cases where the employer's unlawful conduct has a "tendency to undermine [the union's] majority strength and impede the election processes " 5 In such cases, the Court indicated that when the Respondent's unfair labor practices are less flagrant and at one time the union had majority support among unit employees, the Board may consider the extensiveness of an employer's unfair prac- tices in terms of their past effect on election conditions and the likelihood of their recur- rence in the future If the Board finds that the possibility of erasing the effects of past prac- tices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue 6 In considering the Respondent's conduct in this case, the judge did not indicate whether he consid- ered its action as "outrageous" or as "less extraor- dinary" We believe that the Respondent's unfair labor practices fall into at least the second catego- ry Here, as found by the judge, shortly after the Union began its organizational activities in the spring of 1981, the Respondent conducted an an- tiunion campaign designed to discourage its em- ployees from supporting the Union On 24 April, the Respondent discharged the primary union orga- nizer, Anthony Caravello, for his union activities Then, on 6 May, 2 days after the charge in this case was filed, the Respondent implemented a new bonus plan, paying a $15 weekly bonus to any mes- senger who reported for work on time on all 5 days of the week In a meeting with its messengers, the Respondent Vice President Richard Cotogno directly linked the new bonus plan to the Union's organizational campaign Thus, as found by the judge, he told the employees that he was giving them the extra money "to stop the Union" and to 4 Glue!, supra at 613-614 5 Id at 614 6 Id at 614-615 272 NLRB No -42 J COTY MESSENGER SERVICE 269 induce the employees "to keep quiet about the Union" In another incident, the Respondent held a meet- ing with its messengers for the purpose of compar- ing the benefits offered by the Respondent with those employees might expect to get if the Union became the representative In this meeting, Co- togno distributed what the Respondent contended was an informational list of current benefits How- ever, as the Respondent concedes, there were items on the list, including medical insurance, which the messengers were not receiving at the time The judge found, and we agree, that the list was a promise of additional benefits to induce the messen- gers to abandon their support for the Union During this same period, the Respondent threat- ened and interrogated three employees Cotogno threatened employee Miguel Rodriquez by telling him that his job depended on his refraining from joining the Union Further, on at least three occa- sions, in separate conversations which Caravello and employee Edward Blunnie, Cotogno threat- ened that the Respondent would close its doors if the Union won the election In the same conversa- tions, Cotogno also interrogated Caravello and Blunnie about their union activities 7 We note, as did the judge, the coercive effect Cotogno's inter- rogation had on Blunnie The day after he was questioned by Cotogno, Blunnie told Cotogno that he was getting out of the Union Finally, the Re- spondent engaged in additional unlawful conduct when, in July 1982, Cotogno advised Blunnie to ignore a validly served Board subpoena to appear in the instant proceedings It is significant to our decision to issue a bargain- ing order that these violations were serious We find that the Respondent's implementation of the bonus plan and the promise of increased benefits was a "deliberately embarked upon course of action designed to convince the employees that their demands [would] be met through direct deal- ing with Respondent and that union representation could in no way be advantageous to them Obvi- ously such conduct must, of necessity, have a strong coercive effect on the employees' freedom of choice, serving as it does to eliminate, by unlaw- ful means and tactics, the very reason for a union's existence "8 We further find that the natural and 7 Chairman Dotson, relying on Rossmore House, 269 NLRB 1176 (1984), dissents from the adoption of the judge s findings that the ques toning of Caravello, a known union adherent, about the distribution of leaflets violated Sec 8(a)(1) of the Act Member Hunter agrees with the finding of violations here because the questions about the leaflets were immediately followed by threats from Cotogno to close the business In this context, he finds the questions about the leaflets to be unlawful inter rogations 8 Teledyne Dental Products Corp , 210 NLRB 435 (1974) likely result of Cotogno's threat to close the busi- ness was to reinforce employees' fear that they would lose employment if they persisted in union activity This fear was magnified by the Respond- ent's discharge of known union supporter Cara- vello, an unlawful action which went "to the very heart of the Act" by threatening employees with the loss of their jobs for engaging in union activi- ty 9 It has long been established that the threat of loss of employment, discharge of union adherents, and the threat of plant closure, all of which oc- curred here, are likely to have a lasting inhibitive effect on a significant portion of the work force, destroying election conditions, and are therefore "hallmark" violations, supporting the issuance of a bargaining order absent significant mitigating cir- cumstances 10 No such circumstances exist in this case 11 These violations were committed primarily by the Respondent's vice president, secretary and treasurer, Richard Cotogno, whose position clearly served to reinforce and increase in the minds of the employees the seriousness of the Respondent's ac- tions particularly since this is a family-run business and Cotogno's brothers are president and executive vice president, respectively Furthermore, the Re- spondent's unfair labor practices took place in a relatively small unit of approximately 31 employ- ees, magnifying the coercive impact of the Re- 9 NLRB v Entwistle Mfg Co, 120 F 2d 532, 536 (4th Cir 1941) 7 ° Martin City Ready Mix, 264 NLRB 450 (1982), Highland Plastics, 256 NLRB 146 (1981) See also NLRB v Jamaica Towing, 632 F 2d 208 212-213 (2d Cir 1980), where, although the Second Circuit denied en forcement of the Board s bargaining order, it expressly recognized that threats of plant closure, "the grant of benefits to employees, ' or the "dis charge of union adherents in violation of Section 8(a)(3)" were all 'hall mark which, if known to the employees, were serious enough to war rant a bargaining order Additionally several other circuits citing Jamai ca Towing have found that these kinds of unfair labor practices constitute hallmark violations See, e g, NLRB v Town & Country Supermarkets, 666 F 2d 1294, 1305 (10th Cu- 1981) (loss of employment due to union activity) J J Newberry Co v NLRB, 645 F 2d 148 (2d Or 1981) Om proper grant of significant economic benefits) " Member Hunter notes that the Respondent here argues that employ ee turnover is a mitigating factor which compels the denial of a bargain mg order in this case In Marchese Metal 270 NLRB 293 (1984), Member Hunter stated that while he does not necessarily concur with the position of the Second Circuit Court of Appeals regarding the relevance of turn over, even assuming its relevance, a bargaining order was warranted in that case He finds this view equally applicable here The Respondent contends that 19 of its 31 employees left its employ between 22 Apnl-1 or 2 days after the Respondent commenced its unlawful activity—and the hearing before the judge Thus, as the Respondent acknowledges, this turnover occurred during the time of the unfair labor practices, the last of which occurred in July, the month of the hearing In Member Hun ter's view this factor, as well as the kind of unfair labor practices com nutted by the Respondent, distinguish this case from Jamaica Towing, supra Thus, here the unfair labor practices are both pervasive and many of them "hallmark" violations which are likely to have a lasting inhibi tive effect on a substantial percentage of the work force NLRB v Ja maica Towing, 632 F 2d at 212-213 Finally, to the extent that the Re spondent's business is one which is normally marked by high turnover Member Hunter would find that this factor alone, would not warrant the dental of the remedy of a bargaining order 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's conduct and making a fair election doubtful, if not impossible. In light of the violations found, we conclude that the possibility of erasing the effects of the Re- spondent's unfair labor practices and of conducting a fair rerun election by the use of traditional reme- dies is slight. We further conclude that the employ- ees' representation desires, once expressed through authorization cards would, on balance, be protect- ed better by our issuance of a bargaining order than by traditional remedies. Accordingly, we adopt the judge's recommended Order, as modified below, requiring the Respondent to bargain with the Union as the duly designated representative of a majority of its employees in the unit found appro- priate for purposes of collective bargaining effec- tive 22 April 1981, the date by which the Union acquired authorization cards from a majority of employees in the unit after the Respondent had commenced its unlawful course of conduct.' 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, J. Coty Messenger Service, New York, New York, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b). "(b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all personnel records and memoranda regard- ing Anthony Caravello and all records necessary to analyze the amount of backpay due under the terms of this Order." 2. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, concurring in part and dis- senting in part. I agree with my colleagues that the Respondent violated Section 8(a)(3) of the Act by discharging Anthony Caravello 1 and Section 8(a)(1) by imple- menting a bonus plan, by threatening to close its business, by interrogating employees, and by prom- ising to grant benefits. However, I do not agree with my colleagues concerning the following inci- dents: 12 Washington Beef Producers, 264 NLRB 1163 (1982), Warehouse Gro- ceries Management, 256 NLRB 64 (1981), Drug Package Co, 228 NLRB 108 (1977) , In finding that the Respondent knew of Caravello's union activities, the judge applies the "small plant" doctrine In agreeing with the judge that the Respondent unlawfully discharged Caravello, I do not rely on the "small plant" doctrine 1. I disagree with the majority's findings that in April the Respondent through its vice president Cotogno told employee Miguel Rodriquez that his job depended on his refraining from joining the Union. Rodriquez testified that Cotogno told him if he did not join the Union he could have his job back. However, during cross-examination it was made clear that Rodriquez was working for the Respondent at the time of the conversation. Rodri- quez then testified that Cotogno told him "if I don't join the Union, the Labor Board, I get fired from my job." Despite the conflicting and very confusing testimony, my colleagues adopt the judge's conclusion that the Respondent unlawfully threatened Rodriquez. The record contains no other evidence that Rodriquez was threatened. In light of this and the fact that the judge specifically discredited Caravello's testimony that he was told that he could have his job back if he convinced other employees to downplay the Union, I would not find that the Respondent threatened to dis- charge employees if they supported the Union. 2. Further, I would not find, as do my col- leagues, that Cotogno interrogated Caravello in early spring 1981 and again in April about the union flyers being circulated. Caravello was an active union supporter. He attended union meetings and solicited authorization cards. Cotogno merely asked Caravello what he knew about the flyers. He did not question Caravello about his union sympa- thies or ask about the activities of other employees. Therefore, I would not find this innocuous ques- tioning of an open and active union supporter to be in violation of Section 8(a)(1).2 3. Finally my colleagues find that the Respond- ent through Cotogno violated Section 8(a)(1) by advising Edward Blunnie to ignore a validly served Board subpoena to appear before the proceedings in this case. I do not agree. At the time Blunnie was served with the subpoena, he was no longer working for the Respondent and therefore not an "employee" for the purposes of Section 8(a)(1). Additionally, there is no evidence in the record to suggest that Cotogno's advice to Blunnie was re- layed to other employees so as to interfere with their Section 7 rights. I would therefore dismiss this portion of the complaint. I further disagree with my colleagues' finding that a bargaining order is appropriate in this case. In light of the fact that I would not find that the Respondent violated Section 8(a)(1) in the above circumstances, I conclude that the remaining viola- tions committed by the Respondent fall into a third category of "minor or less extensive unfair labor 2 See Rossmore House, 269 NLRB 1176 (1984) J COTY MESSENGER SERVICE 271 practices which have only a minimal impact on the election machinery " 3 While the Respondent's mis- conduct is not to be condoned, I would find that the coercive effects of the unfair labor practices can be dissipated by the application of traditional remedies I therefore dissent from my colleagues' imposition of such an order 3 NLRB v Gissel Packing Ca, 395 U S 575, 615 (1969) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT discharge you or otherwise dis- criminate against you for engaging in activities on behalf of Local 38-A, Service Employees Interna- tional Union, AFL-CIO WE WILL NOT offer or grant bonuses in order to discourage support of the Union WE WILL NOT threaten to cease business oper- ations or discharge you if you select the above Union or any other labor organization, as your col- lective-bargaining representative WE WILL NOT promise to increase your benefits in exchange for your abandonment of the Union WE WILL NOT interrogate you regarding your union activities nor regarding the union activities of other employees WE WILL NOT encourage persons served with subpoenas to testify in Board proceedings to ignore such subpoenas WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Anthony Caravello immediate and full reinstatement to his former position, or if his former position no longer exists, to a substan- tially equivalent position, without prejudice to his seniority or any other rights or privileges previous- ly enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus in- terest WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit All full-time and regular part-time messengers operating on foot, employed by us from our Manhattan facility, but excluding all other em- ployees, motor vehicle drivers, dispatchers, office clerical employees, accounting person- nel, guards, and supervisors as defined in the Act J COTY MESSENGER SERVICE, INC DECISION STATEMENT OF THE CASE HAROLD B LAWRENCE, Administrative Law Judge This case was heard before me in New York City on July 19, 20, and 21 and on September 20 and 21, 1982 The complaint, issued on the basis of a charge filed on May 4, 1981, alleges violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by Re- spondent, a New York corporation engaged in the busi- ness of operating a messenger service The General Counsel prays for the issuance of a bargaining order on the ground that Respondent's actions precluded a fair election in an organizational campaign conducted by Amalgamated Messenger Union, Local 38-A, Service Employees International Union, AFL-CIO (the Union) among members of a unit of the employees working out of Respondent's Manhattan office Respondent stipulated at the hearing that there were 31 members of the unit On the basis of its claim of majority authorization, the Union asserted that it has been the exclusive bargaining representative of the employees since April 22, 1981 On Arpil 24 it filed a petition for certification as the em- ployees' bargaining representative Section 8(a)(1) of the Act is alleged to have been vio- lated because Richard Cotogno, the Respondent's gener- al manager, interrogated employees, threatened them with closure of the business if the Union became their bargaining representative, told employees to persuade fellow employees to abandon their support for the Union, threatened employees with discharge if they joined, supported or assisted the Union, promised em- ployees medical and other unspecified benefits in order to discourage them from supporting the Union, and influ- enced a former employee to ignore a validly served Board subpoena 2 Section 8(a)(1) is claimed to have been further violated by promises of unspecified benefits made to employees by Richard Montalvo, one of the dispatch- ers, on condition that they refrain from union activity Violations of Section 8(a)(3) and (1) are claimed to have occurred by reason of Respondent's discharge of an em- ployee, Anthony Caravello, and refusal to reinstate him, because he engaged in protected concerted activities and by reason of Respondent's grant of a bonus of $15 per 1 All dates are in 1981 except as otherwise stated 2 This allegation was added to the complaint by amendment at the hearing 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week, which it is claimed was granted in order to dis- courage union support The Respondent's answer denied all material allega- tions of the complaint, including the allegation that its business affects commerce within the meaning of Section 2(6) and (7) of the Act The discharge of Caravello and the institution of a punctuality bonus about May 6, 1981, were admitted. Six affirmative defenses were set forth. that the Act has not been violated; that jurisdiction is lacking because Respondent is not "in commerce" or af- fecting commerce within the meaning of Section 2(6) and (7) of the Act; that jurisdiction is lacking because the Respondent's operations do not meet the Board's juris- dictional standards; that Caravello was discharged for good cause, that the decision to implement the punctuali- ty bonus was made prior to any union activity; and that, if unfair labor practices are found to have been commit- ted, a bargaining order would nevertheless be an improp- er remedy The parties were afforded full opportunity to be heard, to call, examine and cross-examine witnesses, and to in- troduce relevant evidence Postheanng briefs have been filed on behalf of the General Counsel and on behalf of the Respondent. On the entire record and based on my observation of the demeanor of the witnesses and the manner in which they gave their testimony, and after consideration of the briefs submitted, I make the following FINDINGS OF FACT I. JURISDICTION At the hearing, the parties stipulated that the Board has jurisdiction by reason of the fact that the Respondent annually does a gross volume of business in excess of $500,000 with firms which ship goods outside of the United States, and is therefore in interstate commerce. I find that at all material times, Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I also find that at all times material the Union has been a labor organization within the meaning of Section 2(5) of the Act. II. APPROPRIATE UNIT On the basis of the testimony in the record which re- vealed in great detail the organization and mode of oper- ation of the Respondent's business, and on the basis of Respondent's stipulation at the hearing, I find that a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act is that al- leged in the complaint, to wit: All full-time and regular part-time messengers oper- ating on foot, employed by Respondent from its Manhattan facility, but excluding all other employ- ees, motor vehicle drivers, dispatchers, office cleri- cal employees, accounting personnel, guards, and supervisors as defined in the Act. III. THE UNFAIR LABOR PRACTICES A. Background The Respondent is a family-controlled corporation which operates a messenger service for freight forward- ers and customs brokers It has a Staten Island ware- house and a Manhattan office. Richard Cotogno, also know as "Coty," is vice president, secretary and treasur- er, and is in charge of Respondent's general daily oper- ations. A brother is president and another brother is ex- cecutive vice president. The staff consists of four dis- patchers, one of whom, Charles Marchese, is a brother- in-law of Cotogno. The staff of foot messengers Includes some who are illiterate or semi-literate and some who do not speak English They tend to leave and return on a frequent basis. Respondent follows a pragmatically toler- ant policy; Cotogno explained that "we stick them in the revolving door which keeps us in business and keeps the feet walking, so to speak." In the spring of 1981, the Union began an organiza- tional campaign among foot messengers working in New York City. Three of Respondent's employees (Olan, Car- avello, and Locklear) attended a union meeting and became active in soliciting authonzation cards. On April 24, having obtained 25 cards from the 31 foot messengers then in Respondent's employ (of which copies of 21 cards are in evidence), the Union filed its petition for certification. On May 4, it filed the charge in the present case The parties agree on some basic facts: that there were 31 members in the appropriate bargaining unit as of late April; that an employee punctuality bonus plan was insti- tuted by Respondent after it became aware of the union organizational campaign; that a leading union activist, Anthony Caravello, was discharged on April 24; and that Richard Cotogno addressed a meeting of the mes- sengers and discussed employee benefits with them early in May, by which time he was aware of the union cam- paign. 3 B. The Alleged Violations of Section 8(a)(3) and (1) 1. Discharge of Anthony Caravello The evidence establishes that Caravello was an em- ployee whose work performance was considered satisfac- tory; that the Respondent knew or had reason to know of union activity generally and of Carvello's personal in- volvement in it; that Respondent discharged him at a point in time when union activity was fairly intensive; and that, notwithstanding Respondent's contention that he was rehired conditionally after having quit, he was actually discharged under such circumstances as to sug- gest a discharge without notice. 2 The lastest time at which he became aware of the union campaign may be fixed as the end of April or the beginning of May when he re- ceived the Union's petition Pnor to Caravello's discharge, however, Co- togno saw union flyers in the office and spoke to Caravello about them Knowledge of union activity, as far back as January 29, is conceded by Cotogno's testimony that he mentioned It to his dispatchers at a meeting in a restaurant on that date J COTY MESSENGER SERVICE 273 In testimony corroborated by one dispatcher, Victor Montalvo, and disputed by another, Charles Marchese, Caravello asserted that there had been no negative com- ment on his work and that favorable comment had been made by Marchese himself Cotogno conceded that he was willing to rehire Caravello after he quit because he was a good worker Montalvo testified that Caravello was one of Respondent's best workers Even Marchese, who testified that he considered Caravello a hindrance to the operation, based his opinion on Caravello's purported undependabilty rather than on the quality of his work Caravello began working for Respondent in October 1980 He quit in early February because, according to his account, he became ill on a rainy day and was refused permission to go home He testified that Marchese subse- quently called him in and rehired him and apologies were exchanged During this second period of employ- ment he became active in support of the Union, attend- ing a union meeting in the company of two other em- ployees and thereafter circulating leaflets in the office and obtaining signatures on authorization cards He was fired on April 24 Counsel stipulated that he had been re- hired on March 17 and was absent from work on April 2 and April 23 My inference that Cotogno knew, or should have known, of Caravello's activity in support of the Union prior to his discharge is based on Cotogno's own testi- mony that, on spotting some union literature in the office, he questioned Caravello about it "because he always defended the men" and happened to be right there in the office Cotogno first testified that he learned about Caravello's union activity in May during the course of discussing the Union with the other men, but he later conceded that he had learned about it from a messenger named Wilson Acevedo in late April or the very beginning of May He was vague enough about the time of that conversation to suggest that in fact it oc- curred about the time he discharged Caravello Respondent's awareness of general union activity is es- tablished, beyond any doubt, for the reasons noted above Cotogno's testimony on that point, and on the specific question of knowledge of Caravello's involve- ment, created the most serious problems respecting his credibility Cotogno testified that he first learned of union activity when he received a telephone call from the National Labor Relations Board on the last Monday or the last Tuesday of April, having had no previous contact with the Union This testimony obviously does not square with his testimony that in the middle of April he had seen a flyer being passed around the office which talked about the meeting called by the messengers' Union, an event which he conceded occurred before he got the telephone call, nor with his testimony that he comment- ed on it to Caravello, nor with his testimony that on Jan- uary 29 he mentioned the Union in the meeting of his dispatchers at the restaurant on Staten Island Cotogno's comments about the flyer are incredible Cotogno testi- fied that he saw the flyer lying around the office and on reading it commented "to someone who was standing around" as follows "If we ever had a Union, we could be in a lot of trouble" Cotogno's initial testimony re- specting his remarks exudes innocence It required very little amplification, however, for it to take on an alto- gether different character In the first place, it appeared that he did not utter his remarks immediately on seeing the flyer, for, as he testified, it had been lying around the office for several days and he had seen it one or two days before he made his remark Second, the person who happened to be standing around was none other than Caravello, the one who "always defended the men" Third, Cotogno did not make his remark in the outer section of the office where the flyer had been seen, but in his office he was standing in the doorway of his office and Caravello was standing next to the table in front of his private office, a place where the messengers did not normally congregate Consequently I do not credit Co- togno's testimony that his making the statement to Cara- vello was pure chance and that he did not then know that Caravello was one of the principal supporters of the Union 4 The prima facie case thus established is strengthened, rather than weakened, by the defense put forward by the Respondent "He was fired for taking foul weather days off, and we feel that if one guy can work in the bad weather why shouldn't everybody else" Cotogno insist- ed that Caravello was discharged on April 24 because he took off April 23, which had been a rainy day He insist- ed on this ground, to the exclusion of any other plausible reason, expressly asserting that Caravello's discharge re- sulted solely from his pattern of not showing up on rainy days, and not because the number of absences was exces- sive He testified, in response to a question, that had Car- avello taken off on sunny days he probably would not have been fired because, in the messenger service busi- ness, rainy days are busier and Caravello had a pattern of taking precisely those days off Apparently sensing the air of unreality which hung over this explanation, and its apparel.* conflict with his statement about keeping the feet walking and thus stay- ing in business, Cotogno attempted to buttress this story with a lengthy explanation to the effect that Caravello had first worked for Respondent from October 1980 to February 2, 1981, on which date he quit rather than work on a rainy day When he was rehired on March 17 by Marchese, it was on the express condition that he come in every day regardless of weather conditions, not- withstanding which he absented himself on 4 separate days between then and April 24, and for that reason he was discharged The implication was that these were rainy days Cotogno later changed his testimony to con- 4 Interrogation is some evidence that an employer knew or suspected that an employee was engaged in activity in support of the Union Flow ers Baking Co, 240 NLRB 870 (1979), enfd 106 LRAM 2546 (5th Or 1980) (no published opinion) In addition, this is an appropriate case for the application of the "small plant" doctrine According to Cotogno s testimony he acted as a kind of adviser and confidante to many of the men in his work force Most of the work force, which usually numbered between 22 and 26 foot messengers, went through the revolving door and only six were steady long term employees It is therefore a reasonable Inference that Cotogno knew what the men were thinking most of the time He was interacting with them on a fairly constant personal basis though he usually communicated to them through the dispatchers An example was Blunme s solicitation on his advice when Blunme received a supoena to appear in those proceedings 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form to statements he had made in an affidavit filed with the Board, in which he had stated that Caravello missed only 2 days, April 2 and April 23 Despite his seemingly irrevocable commitment to the rainy day justification, Cotogno's testimony intimates that there were different reasons for Caravello's dis- charge a combination of excessive absences and a pat- tern of not coming in on rainy days, a pattern of not coming to work on Thursdays (which are claimed to be Respondent's busiest days), and violation of his agree- ment with Respondent The Thursday explanation, so obviously unsustainable, was quickly retracted and the foul weather explanation was restored to supremacy When Cotogno was then asked whether the fact that Caravello took Thursdays off had nothing to do with his discharge, Cotogno first stated that he was unsure and then lapsed back into the rainy-day explanation In the course of his testimony, Cotogno indicated that Caravello's violation of an understanding, which he pur- portedly had with Respondent, may have been the criti- cal factor in the decision to fire him "No, no, he defi- nitely violated an understanding, it's Just that he was sort of stepping on us" The reference is to Marchese's rehir- ing of Caravello on March 17 Cotogno testified that he was willing to take Caravello back, even though he was not reliable, because he was a good worker Cotogno fig- ured he would give Caravello another chance He would stick him back in "the revolving door" According to one of his affidavits "On or about March 17, 1981, Mr Caravello reappeared, after making a voluntary statement of contrition for his past performance, he was given a second chance" Cotogno thus asserted that he considered Caravello's absences on April 2 and April 23 excessive, not because of their number, but because Caravello had been rehired on the express understanding that he would come in every day and not take the foul weather days off For that reason, other messengers who had failed to report to work on April 23 were not discharged, for, unlike Cara- vello, they did not exhibit a pattern of taking off foul weather days The jumble of contradictory explanations offered by Cotogno would, by themselves, amply support a finding that the reasons for Caravello's discharge advanced by the Respondent are pretextual The testimony of Marche- se removes any doubt on that point In testimony which is contradicted by meteorological records which are in evidence and even by a stipulation of counsel, Marchese emphasized that he had warned Caravello about his at- tendance record four or five times 5 and had extracted a promise from him to work in inclement weather as well as fair weather However, according to Marchese, by the end of April Caravello was taking off 2 or 3 days a week, and Marchese thought these were generally bad weather days Like Cotogno, he went back and forth from the poor attendance explanation to the poor weath- er undependability explanation and, for good measure, threw in the conditional nature of the rehiring and Cara- vello's broken promise 5 Caravello denied that he had been given any warnings Cotogno was utterly unable to explain his criteria for determining whether a man with an attendance problem stayed or was fired He could not state whether he pre- ferred an undependable man with a drinking problem or a man like Caravello who is concededly relatively de- pendable (Marchese notwithstanding) except that he did not come in when the weather was bad He could give no satisfactory explanation for failing to dismiss an em- ployee with a bad attendance record, who failed to appear for work on April 2, a rainy day on which Cara- vello had failed to show up His attempt to respond to questions about his policy lapsed into incoherence and a flat confession that he could not explain it The record even fails to support Cotogno's principal contention, that from March through April Caravello took off a goodly number of rainy days He conceded that Caravello did not take every rainy day off, but con- tended that every day that Caravello took off seemed to be a rainy day The two propositions are not compara- ble In any event, the meteorological record contrasts sharply with his contention In Caravello's first period of employment he was absent on November 10 and 11 and December 10, 1980, and January 8 and 23, 1981, worked only five hours on December 3, and quit on February 2 after working 3 hours During the second period, he was absent on April 2 and April 23 Climatological data from the U S Weather Bureau establishes that it rained on November 9, December 9, January 7, February 2, and April 1, 2, and 23 It thus appears that of the 8 days on which he absented himself from work during these two periods of employment, including the day on which he worked only 5 hours and excluding the day he quit (since he had been into work), it rained 2 days On this record there is no basis for Cotogno's belief that every day Caravello took off was a rainy day The record is in such sharp contrast with Cotogno's asserted belief, and my suspicions respecting his credibility are such, that I do not consider it a realistic possibility that he geumely believed it and, in that mistaken belief, acted against Car- avello The weather records thus not only contradict Cotogno on the principal fact supposedly involved in his dis- charge, but undermine his credibility There is thus good reason to ponder the contradictions between Cotogno's testimony and affidavits which he filed with the Board One was prepared by a Board investigator and one by his own attorney Such authorship lends weight to the failure of either affidavit to mention any warning to Car- avello following his absence on April 2, the fact that April 2 and 23 were rainy days or that the reason for Caravello's discharge was failure to work on rainy days The affidavits only state, laconically, that he was dis- missed for lack of dependability One of the affidavits also contains the following statement, in sharp contradic- tion to explicit testimony which he gave at the hearing I never asked Victor Montalvo to speak to Anthony Caravello in my behalf I did remember that Mon- talvo mentioned something to me about possibly hiring Caravello back I don't recall the specifics J COTY MESSENGER SERVICE 275 The grounds advanced for Caravello's discharge are supported only by the testimony of Cotogno and Mar- chese and on that basis I find them pretextual 6 The evi- dence clearly establishes that he was discharged for his union activities 7 2 The bonus plan On May 6, less than 2 weeks after Caravello's dis- charge and only 2 days after the charge in these pro- ceedings had been filed, the Respondent instituted a bonus system involving payment of a $15 weekly bonus to any messenger who reported for work on time on all 5 days of the week The Respondent puts forward, as business justification for the irstitution of the plan at that time, the anticipated savings equivalent to the aggregate salaries of five messengers which would result from having a smaller staff all of whose members got into work on time every day The requirements of the plan were rigorously enforced, so that even a few minutes' tardiness on 1 day could result in a messenger not receiv- ing the bonus Cotogno asserted that such a plan had been under consideration for some time prior to May 6 it had been discussed with the dispatchers on January 29 and with the bookkeeper and had been mentioned to the messengers early in April Aside from contradictions in Cotogno's own testimo- ny, 8 I do not credit Respondent's contentions respecting the bonus plan because of difficulties which I have en- countered with the testimony of Respondent's witnesses and because testimony of several of the messengers links the bonus plan to the Union's organizational campaign Miguel Rodriguez testified that Coty told a meeting of the messengers that he intended to give them more money in the form of a bonus Louis Skeen testified that when Coty met with the employees he told the men that he knew they had a union going, he would like to put a stop to it because he liked them, and that he wanted to give them an extra $15 in salary to stop the Union be- cause he was going to be put out of business by it He explicitly quoted Coty as saying that he was giving them the extra money, in the form of a bonus, in order to induce them to keep quiet about the Union Daniel Price, who was still an employee of the Respondent at the time he testified, recalled that at the time Cotogno instituted 6 The ultimate contradiction of the purported reasons given for Cara vello s discharge may have been Cotogno s concession that he might have given Caravello yet another opportunity to return A week after Caravello was fired, Respondent was short of help and starting to get busy, so Cotogno instructed Montalvo to let Caravello know he could come back Cotogno insisted that there was no contradiction, since It was the dispatchers, not he, who had fired Caravello, it having been left to their discretion while he was on leave I find this explanation specious in light of his admission that he had told Marchese to do something" about Caravello 7 Factors established which Justify the conclusion that Caravello was discharged for his union activities Include the timing of the discharge the Respondent's knowledge or suspicion that he was engaged in union ac tivnies, the immediate backdrop of Respondent s other coercive unfair labor practices, the inadequacy of the asserted reasons and the record as a whole Cf Jim Baker Trucking Go, 241 NLRB 121 (1979), enfd 106 LRAM 2968 (9th Ctr 1980) (no published opinion) 8 Cotogno asserted that the plan had been mentioned to the messengers early in April This contradicts his testimony that the meeting with the messengers occurred late in April or in May the bonus plan he stated that he could not afford a union in the place and that the best he could do was to offer them a bonus if attendance was good for the week To disprove the existence of any link between the bonus plan and the Union's organizational campaign, Co- togno attempted to prove that it had been decided on as early as January 29, an attempt which, more than any- thing else, undermined Respondent's credibility Cotogno produced a file memorandum to his book- keeper which purportedly recited the results of a meet- ing he had had with four dispatchers at a restaurant on Staten Island on January 29 This meeting was one of a long series of such meetings at that restaurant where Co- togno and Marchese, Siegel, DeJesus, and Montalvo, the four Manhattan dispatchers, unwound on Friday nights The memorandum posed the question to her whether Re- spondent could afford to implement the bonus plan There is no written response from her and she did not appear at the nearing Cotogno testified, however, that she advised him that a bonus was economically feasible, since the improved efficiency resulting from the incen- tive to come to work on time and regularly would enable a reduction in the number of messengers 9 This convenient memorandum was supplemented by one that was even better Cotogno and Marchese, the chief dispatcher, identified another memorandum as one which Cotogno had given each dispatcher to hold in case of some future (unspecified) need This named the four dispatchers and said they had met on January 29 at the restaurant Concededly, memoranda of the Friday meetings were not usually kept Cotogno's anticipation that a memorandum of that meeting would be useful some day is a highly suspicious circumstance which was made more suspicious by the testimony of the dispatch- ers The testimony was in conflict as to whether all of the four dispatchers named in the memorandum attended the meeting Montalvo insisted that he had not been there Siegel conceded that remarks attributed to Montalvo at that meeting may, in fact, have been made by him during a meeting in the office Neither Marchese nor Siegel could give a satisfactory explanation of their claimed ability to remember the date and the details of the meet- ing To a certain extent, they conceded the memorandum itself might have been the source of their recollection The testimony was contradictory as to how much busi- ness was normally discussed at such meetings Siegel claimed to remember the discussion because it was so un- usual to discuss business at the restaurant, but later testi- fied that at the meetings they usually discussed salaries, raises, plans of action for the next days for the drivers and upcoming work Siegel even became uncertain that 9 It is significant and adverse to the Respondent that the bookkeeper was not brought in as a witness nor her absence explained Her testimony was pertinent to the issue of the business Justification for the bonus plan and to the question of the receipt of the memorandum on January 30 and would have tended to eliminate some doubt about the circumstances sur rounding the memorandum "A litigant s unexplained failure to offer ma term] evidence warrants the Inference that if he adduced the evidence, it would not support his position Bechtel Carp, 141 NLRB 844, 845, 852 (1963) See also Davis Walker Steel & Wire Corp, 252 NLRB 311 (1980), Teamsters Local 959, 248 NLRB 693, 698 (1980) 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meeting had, in fact, taken place on a Friday evening, after having asserted that it took place on a Friday because there was no work the next day and they stayed out late In that connection, it is noteworthy that the memorandum of the meeting was supposed to have been distributed the following morning, which would have been Saturday, January 30 The testimony of the messengers, the unreliability of the testimony of the dispatchers, and the dubious origin of the memorandum of the meeting of January 29, if one occurred, convince me that the purported bonus plan was a device to offer the messengers a promise of more money, under conditions which made its actual disburse- ment unlikely, and that it was advanced and instituted during the union campaign in order to undermine sup- port for the Union, in violation of the Act C The Alleged Violations of Section 8(a)(1) 1 Threats of closure and discharge, promise of benefits, interrogation and pressure on employees to dissuade other employees from supporting the union The precision with which the complaint, as amended, spells out the wrongful acts of the Respondent is not matched by the evidence introduced respecting them The evidence introduced to support the contentions that the Respondent pressured employees to persuade fellow employees to abandon their support of the Union and that Richard Montalvo, the dispatcher, promised em- ployees unspecified benefits to refrain from union activi- ty, was insufficient to support those charges The marked imprecision respecting the dates, when the other alleged violations are supposed to have occurred, was com- pounded by the fact that the witnesses' periods of em- ployment were interrupted by a constant traffic on and off the payroll as they remained away from work for ab- sences of varying durations Nevertheless, a common thread runs through the messengers' testimony respecting Cotogno's conduct which discloses the commission of unlawful interrogation, the making of threats of closure and discharge, and unlawful promises of benefits Despite their vagueness respecting dates and times of occur- rences, they convincingly depicted the facts and circum- stances of the occurrences and fixed their commission within the period of the union campaign The testimony respecting these violations was provid- ed by Miguel Rodriguez, Louis Skeen, Daniel Price, Victor Montalvo, Anthony Caravello, Edward Blunnie, Cotogno, and Wilson Acevedo Miguel Rodriguez worked for Coty from 1974 until the summer of 1982 with some interruptions for reason of illness and alcoholism According to his testimony, he was fired without any reason being stated and Cotogno told him that if he did not sign a card and join the Union he might be able to get his job back He testified to a meeting, which apparently occurred while he was still employed, in which Cotogno told the employees present that he intended to give them more money in the form of a bonus and distributed a paper which set forth that he was going to give them more money and medical bene- fits Rodriguez' testimony is confused and unclear in many respects" but he clearly asserted that, after his dis- charge, he received a letter from the Union and went to Cotogno with it, and was told by Cotogno that if he did not join the Union he could have his job back and would be paid more money It became apparent during the course of cross-examination that this conversation oc- curred while the witness was still in Coty's employ Ac- cording to Rodriguez, "Well, he told me that if I don't join the Union, the Labor Board, I get fired on my job That's all " Rodriguez also testified that Coty promised him $15 more per week if he got to work on time and worked the whole week What emerges from Rodriguez' testimony is that at some point during the course of his employment, and while a union organizational campaign was in progress, Cotogno (a) promised to give medical benefits, (b) told a meeting of employees that he was going to give them more money in the form of a bonus for punctuality, (c) exhibited antiunion animus and told Rodriguez that his job depended on his refraining from joining the Union All of these actions conformed to a well-established pattern of activity on Cotogno's part as attested to by other testimony Louis Skeen, who worked for Respond- ent from February 1977 to October 1980 and returned early in 1981, testified that Cotogno expressly offered the bonus as an inducement to refrain from union activity Cotogno also distributed a list of benefits (which is in evidence as G C Exh 13) at a meeting of the messen- gers Though Respondent contended the list was intend- ed as an informational list of current benefits, Skeen testi- fied that there were items on the list that he had never heard about up to that time, such as the pension plan and related life insurance plan and the Blue Cross-Blue Shield coverage Cotogno's own testimony leaves little doubt that this list was, in effect, a promise of additional benefits made to the employees in order to induce them to abandon their support of the Union Cotogno original- ly insisted that it was simply a list given to them by way of explanation of the benefits they were then receiving In the face of testimony from some of the messengers that some of the benefits listed were unknown to them, he asserted that Blue, Cross-Blue Shield was on the list (which was typed prior to his entering the meeting) as an "additional benefit" which he had put on the list because some of the Respondent's six steady employees had been asking about it for "quite some time" prior to the meet- ing Though he denied promising benefits to them at that meeting, he conceded distributing copies of the list, as- serting that his object had been to show the benefits which the company was already giving and to assure them that he was aware of the additional benefits which they were seeking, in other words, he brought it up him- self so the men would not think he was forgetting it He brought it up by telling them that he could not give them the additional benefits at that time but if it could be worked out they would have a benefit such as Blue i ° For example, his testimony contains discrepant assertions as to when he signed a union authorization card varying from several weeks before the hearing, to a time when he was working for Respondent, to a year before the hearing J COTY MESSENGER SERVICE 277 Cross-Blue Shield sooner or later So he listed a benefit they did not have on the benefits list, and the additional benefit was listed so that they would know Cotogno was aware of their desire for it and that they could not then have it To state this proposition is to expose its absurdi- ty It would be futile to attempt to square it with Cotog- no's testimony that when he addressed the assembled messengers he only explained to them what they had re- ceived by way of benefits the year before, referring to holidays, vacation pay, and benefits received by certain employees because of accumulated time, or with his testi- mony denying that there had been any discussion at all of Blue Cross-Blue Shield benefits, or his testimony given after Skeen's testimony that he had recently signed a Blue Cross application, that none of the messengers had Blue Cross benefits, or his testimony, given after tes- timony by some witnesses indicated that some messen- gers might have it, that he had put some messengers on the Blue Cross-Blue Shield plan because they had worked for Respondent for many years, or his clarifica- tion to the effect that he had said none were on the plan because one messenger who had been on it had left Re- spondent's employ and only recently returned, so that he was not then on the plan Cotogno finally concluded this phase of his testimony with the statement that Blue Shield was in effect for the personnel of the office but had never been put in for the foot messengers Take your pick The evidence clearly establishes that items such as "job security" and "seniority rights" were unknown to the messengers before they saw it on the list and the conclusion is inescapable that these items appeared on Cotogno's list because they were benefits promised by the Union Cotogno conceded that only men who had worked for Respondent for a very long time could have been expected to know that they had seniority rights (if in fact they did), for the last dock strike occurred in 1969 Only five employees had been with him that long Wilson Acevedo testified that the primary object of the meeting which Cotogno addressed was to enable the messengers to find out what the Company was offering as compared with what they might expect to get if the Union came in This obviously put the Respondent in the position of appealing for support against the Union by promising increased benefits Respondent contends that this is not what happened, however, and wrung a con- cession from Acevedo that the messengers did not know all of the benefits they were already entitled to and were interested in finding out Unquestionably some of the less alert employees were unaware that as employees of Re- spondent they had any benefits at all, Daniel Price so testified (He also appeared to have been oblivious to what transpired at the meeting, recalling no discussion of benefits or distribution of any list, occurrences which are proved beyond dispute by other evidence in the record ) At the same time, however, Acevedo made it clear that the messengers were interested in finding out what benefits they were going to get in the future He testified that Montalvo and Caravello addressed the meeting first, then Cotogno came in with a list of benefits which he said they were entitled to as of that time and on which he had also listed benefits he intended to give them in the future, such as Blue Cross-Blue Shield According to Acevedo, Cotogno promised the messengers that they would get Blue Cross-Blue Shield after they had been working for Respondent for a year This was the first time Acevedo had ever heard of it He had not previous- ly heard of the pension plan, the life insurance, the job security, or the seniority rights It therefore appears quite clear that Cotogno addressed the meeting and promised the messengers additional ben- efits which they were not then receiving Victor Montalvo worked as a dispatcher/solicitor for Respondent from 1973 until June 14, 1981, with the ex- ception of a short period of time when he worked for a competing messenger service He testified that a bonus system was instituted for the messengers in November 1981 without any such program having been discussed prior to the union campaign On one occasion Cotogno told him that if the Union came in he would have to close the doors financially and Montalvo testified that he conveyed Cotogno's opinion to Anthony Caravello In a conversation with Montalvo, a few days before Cara- vello was fired, Cotogno characterized several employ- ees as union instigators (Caravello, Olan, and Locklear) Montalvo testified that when Carvello appeared at the office after having been fired he, Montalvo, decided to speak to him and advised Cotogno of his intention to do so, whereupon Cotogno told him to tell Caravello that if the Union was to come in, Respondent would have to close its doors Montalvo's testimony must be taken very seriously He was a dispatcher and relatively close to Cotogno He was in a position to observe Cotogno's attitude towards the attempted unionization He gave extremely damaging testimony in connection with the discharge of Anthony Caravello The thrust of Montalvo's testimony was that Cotogno got his message across through the dispatchers He de- tailed the dispatchers, chiefly DeJesus and Montalvo, to convey his ideas to the messengers Montalvo testified that Cotogno told DeJesus and Montalvo to tell the mes- sengers that he would have to lock the doors if the Union came in and that the Union was no good, and they complied with his order There is nothing in Montalvo's testimony which would indicate that on behalf of Cotogno he interrogated anybody, made any other threats that the business would be terminated, threatened anybody individually with dis- charge, or promised increased benefits to anybody Skeen testified that Montalvo told him to forget about the Union because it would make a lot of trouble for him, but it is not at all clear whether this was said as a threat or was stated as a matter of friendly prediction of the likely outcome Marchese, DeJesus, and Siegel gave no testimony indicating that they either received such in- structions from Cotogno or complied with them Anthony Caravello testified that Cotogno twice threat- ened closure The first occasion was early in the spring of 1981 Cotogno called him into his office and asked him if he knew anything about a union flyer being circu- lated in the office and remarked that if the Union came in he would not be able to afford to keep the place open, 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have to padlock the place and nobody would be able to work, and suggested that Caravello pass that in- formation along to some of the other messengers The second was in April Caravello had been placing flyers in the office but had denied all knowledge of their source when queried by Cotogno On this second occasion, Car- avello, professing innocence, asked Cotogno if he had found out anything about the leaflets Cotogno told Car- avello that he had heard nothing else but that he wanted to reemphasize that if a union came in everyone would be hurt by it because he could not afford to continue in business Caravello also testified that Montalvo invited him to a lunch meeting at which Montalvo told him that he could get him his job back if Caravello could get the men to play down the Union in exchange for a little more in the way of benefits, such as bonuses and some hospitalization benefits I do not credit this testimony on the part of Caravello, however The incident is not mentioned by Montalvo in his own testimony though Montalvo ap- peared to be more than ready to give testimony unfavor- able to the Respondent In addition, Caravello's testimo- ny that when he went to the front office and started talk- ing to a few men there Cotogno saw him and ordered him off the premises, suggests that Cotogno had no knowledge of the proposition which Montalvo had sup- posedly made to Caravello and that, if Montalvo did in fact make such a suggestion to Caravello, it was without Cotogno's authorization Edward Blunme worked for Respondent from July 31, 1980, to August 14, 1981 He signed an authorization card around April 20 Cotogno called him into his office and asked him if he had signed a union card and Blunme told him that he had Cotogno told him that the Union would be a big problem for him and would compel him to close his doors and would put him out of business The coercive effect of this interrogation on Blunme is apparent from the fact that he returned to Cotogno's office the very next day and told him that he was getting out of the Union In response to questions put to him by his lawyer, Co- togno made a whole series of pro forma denials of the allegations of the complaint He denied that on April 25, 1981, he had threatened employees with the closing of the business, that he interrogated employees concerning union activity, that he conducted interrogation in the fourth week of April 1981 and threatened to close the business if the Union came in, that in a meeting held in the last week of April certain benefits to employees were promised Perfunctory testimonial denials of the allega- tions of a complaint tend to be of little persuasive effect, especially when the contrary testimony of other wit- nesses is neither rebutted nor explained Much of Cotogno's affirmative testimony suggests the validity of the charges against the Respondent His testi- mony that he made his remark to Caravello "because he always defended the men and he was right there" sug- gests that he waited for an opportunity to talk to Cara- vello about it He testified that the employees brought him the letters they received from the National Labor Relations Board and that he assumed that anyone who had received such a letter had signed a union card, thus he obviously knew the identity of many of the union ad- herents Though Cotogno denied having said that he would close the facilities if the Union came in, he con- ceded having said, "We could have a problem" If he is to be believed, the remark was made in a vacuum, he did not address it to any particular person but simply uttered it "in general" He testified, "Probably in my office I had mentioned it to some individual, but at the time I really don't know who it is, maybe it might have been a dis- patcher or whatever, I don't know" I am not unmindful of the fact that employment of Montalvo and Skeen by a competitor of Respondent for a brief period may raise a question as to their credibility Nevertheless, no evidence of any resultant bias was ad- duced On the whole, I have no difficulty crediting Skeens' testimony, despite discrepancies respecting dates of occurrences Such discrepancies were present in the testimony of almost all of the messengers They do not, in my estimation, impair credibility when testimony as to occurrences is otherwise clear, precise, and straightfor- ward, as was the case with Skeen In fact, not all of Skeen's testimony was unfavorable to the Respondent He testified that Cotogno never questioned him about joining the Union, never asked him if he signed a union card, and never told him that the business would be closed down if the Union came in As to Montalvo, there are difficulties with his testimo- ny vagueness and uncertainty regarding the extent of discussion of the punctuality bonus prior to the union campaign and whether the plan might not, in fact, have been discussed at the restaurant on Staten Island His ability to fix the dates of occurrences is neither better nor worse than that of the other witnesses Though he testified that Cotogno made a remark to him about clos- ing the door financially, if the Union came in, at a time when he thought a few other people were standing around Subsequently he conceded that the other persons were dispatchers and that no employees were within ear- shot He also stated that he never heard Cotogno make such a remark to any of the employees The impression of Cotogno directing the communication of a coercive message about closing by the dispatchers to the messen- gers is mitigated by Montalvo's testimony that he trans- mitted Cotogno's message to that effect to Caravello as a statement of Cotogno's "opinion" and that, at that time, he told Caravello that, if Caravello felt that what he was doing was right, he should go right, he should go right ahead and do it This would have considerably mitigated the alleged coercive effect of any statement which he quoted to Caravello In fact his testimony regarding the entire episode was contradictory He first testified that Cotogno told him to tell Caravello about the pros and cons of unions and that the doors would close if the Union came in, but on cross-examination his testimony was to the effect that Cotogno did not tell him but simply expressed his own opinion, out of the hearing of any employees, that the door would close if the Union came in He later did another reversal and asserted that Cotogno told him what to tell Caravello Montalvo's bad sense of timing reached an extreme when he testified first that Coty's instruction to him as to what to tell Cara- J COTY MESSENGER SERVICE 279 vello occurred "approximately 2 days before he was let go" and subsequently that the conversation with Co- togno occurred after Caravello was fired Nevertheless, his testimony is, for the most part, in line with that of the messengers, including Caravello, and, to the extent that it is, I credit it 2 Blunnie subpoena On motion made and granted at the hearing the com- plaint was amended to allege that about July 1982 the Respondent, by Richard Cotogno, encouraged and influ- enced a former employee, Edward Blunnie, to ignore the validly served Board subpoena to appear in the instant proceedings, in violation of Section 8(a)(1) of the Act Blunme had worked for Respondent from July 31, 1980, to August 14, 1981 He appeared at the hearing pursuant to an Order of the United States District Court after a subpoena enforcement proceeding brought by the Gener- al Counsel Blunme testified that when he received the subpoena he did not know what to do, so he contacted Cotogno Cotogno testified that Blunnie telephoned him and told him that he had received a subpoena, whereupon Co- togno advised him "to do what you gotta do, but you know, do what's best for you" Cotogno insisted that he did not tell Blunme not to appear on the return date of the subpoena and did not advise him to ignore the sub- poena Blunme's testimony clearly indicates otherwise Blun- me first testified that when he received the subpoena in 1982, he telephoned Cotogno and read the subpoena to him Cotogno said, "Don't worry about it" On cross-ex- amination Blunnie quoted Cotogno as saying, "Don't worry about it Don't go" Blunme testified that as a consequence of this advice from Cotogno he did not re- spond to the subpoena In addition, when pressed on cross-examination to clarify whether or not Cotogno had told him to do what he had to do, he replied that he did not think Cotogno had so stated He repeated instead that Coty said, "Don't go" He was sure that that was what Cotogno had said Blunme also testified that after the telephone conversa- tion he dropped in to see Cotogno at Respondent's office Cotogno was busy with somebody and simply said to Blunme, "Don't worry about it" Blunnie there- upon left Cotogno's remarks are susceptible to only one reasona- ble interpretation Any ambiguous response to an in- quiry, such as the one made by Blunnie, has to be read as indicative of the adviser's preference that the subpoena be ignored Advice that a recipient of a subpoena not worry about it is tantamount to advice that it be ignored In any event, Cotogno was explicit Blunme quotes him as saying, "Don't go" I fully credit Blunnie's version of his conversations with Cotogno and I find that Cotogno violated Section 8(a)(1) of the Act by advising him to ignore the subpoena 11 ii The situation, in which a former employee asked an employer what to do, and was advised to disobey the subpoena, it is clearly distinguish able from situations in which an employee solicits advice as to his legal options and recourses with respect to a subpoena Advice concerning IV THE UNION MAJORITY It was stipulated at the hearing that there were 31 em- ployees in the unit on April 22, 1981 I am satisfied that as of that time the Union had authorization cards from a clear majority of the employees, who knew their pur- pose, notwithstanding that several of the signatories may not have read the cards in advance of signing and some of them do not read or write English Cotogno asserted that all of a sudden many of the men began approaching him to let him know that they were revoking their authorization cards, that Blunme told him that a lot of messengers had signed cards without know- ing what they were signing and were taking steps to revoke the cards, and that an employee named Wilson Acevedo, a messenger who is still employed by Re- spondent, told him that he had signed a card after being pestered for months, and was revoking it Both Blunnie and Acevedo testified at the hearing, but neither gave any testimony which corroborated Cotogno's testimony in this regard In fact, Blunnie testified that, before he executed the union authorization card, around April 20, he and Caravello had discussed the purpose of bringing the Union in and the contents of the authorization card Blunnie read the card over and concluded that it made good sense to sign it Cotogno's testimony sounds as though he had been getting the desired feedback following his unlawful pres- sures on the messengers If this is what he was told, however, it appears the messengers were telling him what they assumed he wanted to hear, but they were doing something else The history of the collection of signatures on the cards, as it appears from the other evi- dence in the record, amply supports the conclusion that the Union had achieved an overwhelming valid majority Luis Olan and Anthony Caravello testified that the union organizational campaign began in late April When pamphlets were distributed announcing a union meeting for the purpose of organizing messengers working in Manhattan, Caravello, Olan and another employee, Ramon Colon, attended that meeting Thereafter Olan and Caravello collected signatures on union authoriza- tion cards Cotogno, during the hearing, personally veri- fied the signatures on the cards as being those of the re- spective employees, comparing them with those con- tained in the Respondent's personnel records Caravello and Olan, besides the card which they themselves signed, obtained at least 20 other signed cards, which are in evi- dence The men collecting the signatures on the cards knew their significance Clifford Wilson, the union business agent, explained the purpose of the cards to Olan He ex- plained the meaning of the language on the cards In re- peating the discussion which he had with Wilson, Olan, during the course of his testimony, demonstrated a clear understanding of the meaning of the language contained in the cards He identified his own card and 10 cards service of a subpoena or compliance with it, based on an analysis of the method of service and the circumstances of the case, is altogether differ ent from advice to ignore a subpoena service, which is concededly valid, in order to limit introduction of evidence against the employer at the hearing See Madison Kipp Go, 240 NLRB 879, 886-888 (1979) 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which were signed by other employees in his presence, and testified that both he and Caravello explained to the signatories that the purpose of the cards was to permit the Union to represent them Caravello testified that, when he and Olan gave out the cards an explanation was given to each person to whom a card was given to the effect that the purpose of the card was to get a union to represent them They were told to read the cards, to make sure they read them carefully, and to make sure they knew what they were reading before they signed anything and it was repeated that the purpose was to obtain union representation The majority of the cards were signed at the office and either returned to him there or in the street On an extensive cross-examination, his memory failed him as to some of the particulars of the circumstances under which particu- lar cards were executed, but he was still able to pick out five cards that were signed before him, furnishing con- vincing details of their execution These cards, together with his own card, added to the 12 cards signed by Olan and obtained by him, bring the total number of indisputa- bly valid cards to 18 and thus establish that a union ma- jority existed by April 22 A different conclusion is not indicated by some contra- dictory evidence which Respondent elicited from Miguel Rodriguez, who first stated that he had signed the card bearing his name "a couple of weeks ago" and later testi- fied that he had signed it about a year before the hear- ing His concept of the purpose of the card also seemed murky at first He did, however, testify that when he was given the card, its purpose was explained to him and that the man who gave it to him told him that it was to join the Union and that he would probably get more money and more benefits Patently his intention in sign- ing it was to have the Union represent him All of the cards were admitted into evidence without objection except General Counsel's Exhibits 18, 20, 25 and 26, to which objection was made on the grounds that they were signed out of Caravello's presence (not on grounds of authenticity of signatures, which had been verified by Cotogno himself) The cards are regular in form and the evidence establishes that the persons procuring the signa- tures on the cards took steps which made it appear likely that the signatories to all of the cards knew the purpose of the cards and correctly comprehended their signifi- cance There is no legal requirement that the validity of a card be established by testimony of the signatory or of the person before whom it was signed if, on all of the evidence available, it appears to be valid I therefore find that the Union was the collective-bar- gaining representative for the unit during the period from and after April 22, 1981 V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices committed by the Respond- ent have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 The Respondent violated Section 8(a)(3) and (1) of the Act by discharging Anthony Caravello and refusing to reinstate him because he engaged in protected con- certed activities and by granting its employees a bonus in order to discourage support of the Union 4 The Respondent violated Section 8(a)(1) of the Act by threatening employees with closure of the business and with discharge if the Union became their collective- bargaining representative, by offering bonuses to discour- age support of the Union, by promising increased bene- fits if the employees abandoned support of the Union, by interrogating employees respecting union activities and related matters and by encouraging and influencing a former employee to ignore a validly served Board sub- poena to appear in the instant proceedings 5 The Respondent did not commit any violation of the Act not otherwise found herein 6 These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 7 A unit appropriate for collective-bargaining is All full-time and regular part-time messengers oper- ating on foot, employed by Respondent from its Manhattan facility, but excluding all other employ- ees, motor vehicle drivers, dispatchers, office cleri- cal employees, accounting personnel, guards, and supervisors as defined in the Act 8 The Union has been the exclusive collective-bar- gaining representative of the employees in the above-de- scribed unit within the meaning of Section 9(a) of the Act since April 22, 1981 9 The aforesaid unfair labor practices preclude the holding of an election free from unacceptable risk that such election will not reflect a choice made by employ- ees free of coercive influence exercised by the Respond- ent THE REMEDY Having found that the Respondent engaged in unfair labor practices, I recommend that the Respondent be di- rected to cease and desist therefrom and take ceram af- firmative action to effectuate the policies of the Act I recommend that the Respondent be directed to offer An- thony Caravello immediate and full reinstatement to his former position or, if that position is no longer available, to a substantially equivalent position, without prejudice to his seniority or other benefits and privileges I further recommend that the Respondent be directed to make him whole for any loss of earnings that he may have suf- fered by reason of his discharge on April 24, 1981, with backpay to be computed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Flor- J COTY MESSENGER SERVICE 281 Ida Steel Corp, 231 NLRB 651 (1977), and Isis Plumbing Co, 138 NLRB 716 (1962) The Respondent reacted to the union organizational campaign by, among other things, discharging an em- ployee who was one of the principal organizers, if not, in fact, the chief organizer It threatened employees with termination of the business and loss of their jobs 12 It made employees' tenure conditional on their abandon- ment of support for the Union The pervasive coercive effect of these violations of the Act is such that an elec- tion free of coercion is highly unlikely Accordingly, I shall recommend the issuance of a bargaining order, though it appears that the Union has never actually de- manded that Respondent bargain with it 13 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, J Coty Messenger Service, Inc , New York, New York, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging employees for engaging in protected concerted activities (b) Offering or granting employees bonuses qn order to discourage support of the Union (c) Threatening employees with loss of employment by reason of termination of Respondent's business if the Union acts as their collective-bargaining representative (d) Threatening employees with discharge if they sup- port the Union (e) Promising additional benefits to employees if they abandon the Union, or in order to induce them to do so (f) Interrogating employees respecting union activities in general and their support of the Union, in particular (g) Encouraging disregard of subpoenas to testify in Board proceedings (h) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self organization, to form labor organizations, to join or assist a labor organization, to bargain collectively 12 A threat of closure, by itself is sufficient to render impossible the conducting of a free and fair election Ultra Sonic De Burring, 233 NLRB 1060 1068 (1977), enfd 593 F 2d 123 (9th Cir 1979) It creates an unacceptable risk that an election cannot be held free of coercive influ ence Jim Baker Trucking Co , 241 NLRB 121 (1979) A demand for bargaining is not a prerequisite for the Issuance of a bargaining order Peaker Run Coal Co , 228 NLRB 93 (1977) " If no exceptions are filed as 5provided 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 through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities 2 Take the following affirmative action which it is found will effectuate the policies of the Act (a) Offer to Anthony Caravello immediate and full re- instatement to his former position or, if that position is not available, to a substantially equivalent position, with- out prejudice to his seniority or other rights and privi- leges, and make him whole for any loss of earnings and other benefits in the manner set forth in the section enti- tled "The Remedy" (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all per- sonnel records and memoranda regarding Joseph Dunst and all records necessary to analyze the amount of back- pay due under the terms hereof (c) On request, recognize and bargain with Amalga- mated Messenger Union, Local 38-A, Service Employ- ees International Union, AFL-CIO as the exclusive bar- gaining representative of the employees in the appropri- ate unit described below and, if an agreement is reached, embody such agreement in a written signed contract The appropriate unit is All full-time and regular part-time messengers oper- ating on foot, employed by Respondent from its Manhattan facility, but excluding all other employ- ees, motor vehicle drivers, dispatchers, office cleri- cal employees, accounting personnel, guards, and supervisors as defined in the Act (d) Post at its Manhattan office in New York, New York, copies of the attached notice marked "Appen- dix "is Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply i5 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na tional Labor Relations Board shall read 'Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board"