ABC Liquors, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1982

263 N.L.R.B. 1271 (N.L.R.B. 1982)

ABC LIQUORS, INC.
ABC Liquors, Inc. and Teamsters, Chauffeurs, War-
ehousemen and Helpers, Local 385, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Cases 12-CA-9506 and 12-RC-
5955
September 20, 1982
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On April 20, 1982, Administrative Law Judge
George Norman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' conclusions, 2 and recommendations3 of the
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In adopting the Administrative Law Judge's credibility resolutions, we
find it unnecessary to pass on his reliance on the testimonial opinion of
Respondent's vice president, Bailes, regarding the conflict between his
testimony and that of Timmons, a witness for the General Counsel.
Respondent excepts to the Administrative Law Judge's finding that it
is responsible for the acts of its director of security, Casto, contending
that he was not a supervisor within the meaning of Sec. 2(11) of the Act.
We find no merit in this exception. Thus, the record reveals that Casto
interviewed and hired, or effectively recommended the hire of, at least
one employee and that he directed at least two employees in their investi-
gation of the unit employees' union activities as well as of suspected
thefts of liquor. We note also that in its amended answer, dated August
14, 1981, Respondent admitted that Casto had been its "limited agent"
since November 24, 1980. Under these circumstances, we find that Casto
was a supervisor and an agent of Respondent. Additionally, we find it
unnecessary to rely on the Administrative Law Judge's finding that Casto
discharged employee Green.
In the absence of exceptions thereto, we do not pass on the Adminis-
trative Law Judge's failure to decide whether certain remarks made by
Bailes to groups of employees in November 1980 or to employee McCol-
lum in December 1980 constituted violations of Sec. 8(aXI), as alleged in
the complaint.
s The Administrative Law Judge concluded that the Charging Party's
request for a remedial bargaining order should be denied on the sole
ground that the Union did not possess majority status among the unit em-
ployees on the day of its bargaining demand. Member Fanning adopts
this conclusion since no exceptions were filed thereto. For the reasons
stated in their separate opinions in Conair Corporation, 261 NLRB 1189
(1982), Chairman Van de Water and Member Hunter adopt the Adminis-
trative Law Judge's conclusion.
The Administrative Law Judge noted, with respect to the challenges
to the ballots of former employees Bowman, Green, and McCollum, that
the 8(aX3) charges filed subsequent to their discharges had been with-
drawn or dismissed. Accordingly, we shall sustain the challenges to their
ballots. Further, although the Administrative Law Judge noted that the
263 NLRB No. 174
Administrative Law Judge and to adopt his recom-
mended Order, as modified herein.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
ABC Liquors, Inc., Orlando, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph l(e):
"(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their rights guaranteed by Section 7 of the
Act."
2. Substitute the following for paragraph 2(a):
"(a) Post at its warehouse and its retail store No.
3 in the Orlando, Florida, area copies of the at-
tached notice marked 'Appendix.'2 2 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 12, after being duly signed by Re-
spondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material."
challenges to the ballots of employees Ashley, Hullender, and Sursely
were withdrawn at the hearing, he failed to recommend that these ballots
be opened and counted. Since these ballots remain determinative of the
election, we shall order that they be opened and counted and, in the
event that the Union receives a majority of the valid ballots cast, that the
Regional Director issue a certification of representative.
The Administrative Law Judge also recommended that the Union's ob-
jections to the election be sustained. We adopt this recommendation with
respect to Objections 1, 3, 4, and 5. In light of the withdrawal and dis-
missals of the charges filed regarding the terminations of former employ-
ees Bowman, Green, and McCollum, however, we shall overrule Objec-
tion 2 which alleges that Respondent interfered with the election by dis-
charging union supporters. Accordingly, we shall also direct that, in the
event that the revised tally reveals that the Union did not receive a ma-
jority of the valid ballots cast, a second election be conducted.
4 Respondent excepts to that portion of the Administrative Law
Judge's recommended Order requiring posting of the notice at Respond-
ent's warehouse and all of its retail stores in the Orlando, Florida, area.
We find that this portion of the recommended Order is inappropriate
since Respondent's unfair labor practices occurred only at its warehouse
and its retail store No. 3. Accordingly, we shall require posting of the
notice only at those two locations. See, e.g., Knapp Foods. Inc. d/b/a Hi-
Lo Foods, 247 NLRB 1079, fn. 4 (1980).
In par. 1(e) of his recommended Order, the Administrative Law Judge
used the broad cease-and-desist language, "in any other manner." How-
ever, we have considered this case in light of the standards set forth in
Hickmott Foods, Inc., 242 NLRB 1357 (1979), and have concluded that
the narrow cease-and-desist language "in any like or related manner" is
appropriate. We shall modify the Administrative Law Judge's recom-
mended Order and notice accordingly
1271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that in Case 12-RC-
5955 the challenges to the ballots of David
Bowman, James Green, and Frank McCollum be,
and they hereby are, sustained.
DIRECTION
It is hereby directed that the Regional Director
for Region 12 shall, within 10 days from the date
of this Decision, open and count the ballots of Pa-
tricia Ashley, Sue Hullender, and Marilynee Surse-
ly, the challenges to which have been withdrawn,
in Case 12-RC-5955, and prepare and serve on the
parties a revised tally of ballots. If the tally reveals
that the Petitioner has received a majority of the
valid ballots cast, the Regional Director shall issue
a certification of representative. However, if the re-
vised tally shows that the Petitioner has not re-
ceived a majority of the valid ballots cast, a second
election by secret ballot shall be conducted among
the employees in the unit found appropriate, at
such time as the Regional Director deems appro-
priate.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following
rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT interrogate our employees
with respect to their union activities.
WE WILL NOT threaten our employees with
discharge if they support the Union.
WE WILL NOT threaten our employees with
plant closure.
WE WILL NOT surveil our employees with
the intent to discharge them because of their
union activities.
WE WILL NOT hire employees so they
would be eligible to vote in the union election.
WE WILL NOT instruct our employees to
surveil the union activities of our other em-
ployees and to submit reports on the same.
WE WILL NOT inform our employees that
other employees have been transferred to the
warehouse to vote against the Union in the
election.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
by Section 7 of the Act.
ABC LIQUORS, INC.
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: The
hearing in these cases was conducted before me in Orlan-
do, Florida, on September 8, 9, 30, and October 1 and 2,
1981. The complaint and notice of hearing was issued by
the Regional Director for Region 12 on February 9,
1981. It was based on a charge filed December 29, 1980,
and an amended charge filed January 29, 1981.1
The consolidated complaint alleges that ABC Liquors,
Inc., herein called Respondent, interrogated its employ-
ees; threatened its employees with discharge if they sup-
ported the Union; threatened its employees with plant
closure; surveilled an employee with the intent to dis-
charge the employee because of his union activities;
hired an employee so that the employee would be eligi-
ble to vote in the union election; instructed an employee
to surveil the union activities of its employees and to
submit reports on the same; and informed the employee
that another employee had been transferred to the ware-
house in order for the employee to vote against the
Union in the election. '
I Teamsters, Chauffeurs, Warehousemen and Helpers, Local 385, affili-
ated with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union, filed a repre-
sentation petition on October 14 in Case 12-RC-5055. On December 19,
1980, an election was held in Case 12-RC-5955 resulting in 43 votes for
petitioner, 44 votes cast against petitioner, and 6 challenged ballots.
Three of the six challenged ballots were withdrawn by the Union at the
hearing. Thereafter the Union filed objections to election on December
29, 1980. On February 13 the Regional Director issued "Supplemental
Decision on Challenged Ballots and Objections to Election" and order
directing hearing and consolidating cases.
2 As previously stated, Case 12-RC-5955 was consolidated for hearing
with the instant unfair labor practice case.
With respect to the six challenged ballots, the ballots of Marilynee Sur-
sely, Sue Hullender, and Patricia Ashley were challenged by the petition-
er as casual employees. Those challenges were withdrawn at the hearing
by the petitioner. The ballots of James Green, David Bowman, and
Frank McCollum were challenged by both the Board agent conducting
the election and the employer's observer because their names did not
appear on the voter eligibility list furnished by the employer.
Continued
1272
ABC LIQUORS. INC.
The General Counsel seeks as a remedy the voiding of
the results of the election in Case 12-RC-5955 and an
order of a new election. The General Counsel considers
a Gissel bargaining order as an inappropriate remedy. To
support that position the General Counsel states: (1) at
no time prior to the hearing did the Charging Party re-
quest an investigation of its majority status to support a
Gissel bargaining order; (2) to allow the Charging Party
to pursue a Gissel remedy at the hearing would be tanta-
mount to allowing it to amend the complaint; and (3) to
allow the Charging Party to proceed on this basis would
The petitioner filed an unfair labor practice charge in Case 12-CA--
9501(1-2) on December 15, 1980, alleging, inter alia, that Green and
Bowman had been discharged by the employer prior to the date of the
election in violation of Sec. 8(aX3) and (1) of the Act. The petitioner
later filed an unfair labor practice charge in Case 12-CA-9506 alleging
that Frank McCollum had been discharged by the employer prior to the
date of the election in violation of Sec. 8(aX3) and (1) of the Act. On
January 29, 1981, the petitioner withdrew Case 12-CA-9501(1-2) and
amended Case 12-CA-9506 to include the allegation that Green was dis-
charged by the employer prior to the date of the election in violation of
Sec. 8(aX3) and (1) of the Act. The portions of the aforesaid charge
(Case 12-CA-9506) dealing with the discharges of McCollum and Green
were dismissed by the Regional Director for Region 12 on February 9,
1981. No other evidence relating to these challenges was presented at the
hearing.
On December 29, 1980, the petitioner timely filed objections to con-
duct affecting the results of the election. The petitioner's objections al-
leged the following:
I. The Employer engaged in surveillance of those employees who
were eligible for the election so as to determine which of its employ-
ees were likely to vote in favor of the petitioner. This conduct had
the effect of intimidating and coercing employees.
2. The Employer discharged certain employees, who were known
to be supporters of the petitioner so as to affect the outcome of the
election by intimidating and coercing the remaining employees of the
proposed bargaining unit.
3. The Employer acting through its agents and supervisors, en-
gaged in one-on-one contact with the individual employees who
were eligible to vote, coercing them and instructing them on how
they were to vote in the scheduled election.
4. Certain employees whose job responsibilities were guards and
security agents for the employer were allowed to vote in the elec-
tion. Certain of the persons who voted in the election were in fact
security personnel of the employer who were listed in other job clas-
sifications not disclosing their true job responsibilities and duties.
5 That the employer hired certain employees immediately prior to
the voter eligibility date who would be able to vote in the scheduled
election solely for the purpose of adding employees who would vote
against the petitioner and influencing the votes of other eligible em-
ployees.
The only evidence adduced at the hearing in regard to these objections
was presented by the General Counsel and Respondent. With respect to
the challenged ballots of James Green, David Bowman, and Frank
McCollum, as previously indicated, they were included in the petitioner's
charge in Case 12-CA-9506. That portion of the charge dealing with the
discharges of McCollum and Green was dismissed by the Regional Di-
rector on February 9 Although the supplemental decision of the Region-
al Director, referred to above, does not state the reasons for dismissal it is
apparent from the record that the dismissal was based on the facts that
McCollum was stealing and Green was caught with marijuana in his pos-
session while on the job. On January 29, 1981, the petitioner withdrew
Case 12-CA-9501(1-2) which included the allegation that David
Bowman was discharged in violation of Sec. 8(aX3) and (1) of the Act.
That disposed of the three alleged 8(aXJ3)s, James Green, David
Bowman, and Frank McCollum, and, therefore, none was included in any
allegation of the instant complaint as an 8(aX3) and (1) dischargee. In
sum, of the six challenges, David Bowman was withdrawn by the peti-
tioner on January 29, Marilynee Sursely, Sue Hullender, and Patricia
Ashley were withdrawn by the petitioner at the outset of the instant
hearing and the Regional Director dismissed those portions of the charge
in Case 12-CA-9506 concerning the discharges of McCollum arid Green.
Thus, all six of the challenges have been disposed of.
allow the hearing to become a substitute for the investi-
gative process. The General Counsel further states that
by comparison of the Union's authorization cards and a
stipulated list of employees, although the Region has
made no determination in that regard, the Union did not
possess majority status. Finally, the General Counsel
argues that because the extraordinary circumstances jus-
tifying a nonmajority bargaining order as in United Dairy
Farmers Cooperative Association, 257 NLRB 772 (1981),
are not present in the instant case, the Union's request
for a Gissel bargaining order should be denied.
The parties were afforded full opportunity to be heard,
to call, examine, and cross-examine witnesses, and to in-
troduce relevant evidence. Post-hearing briefs have been
received from the General Counsel, Respondent, and the
Charging Party. Respondent was granted permission and
did file a reply brief to the Charging Party's brief.
Upon the entire record s and based upon my observa-
tion of the witnesses and consideration of the briefs, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
ABC Liquors, Inc., herein Respondent, is engaged in
the sale of beer, wine, and spirits at various retail stores
located throughout the State of Florida and maintains its
stocks at its warehouse distribution center in Orlando,
Florida.
During the past 12 months, a representative period,
Respondent has received gross revenues from its retail
operations in excess of $500,000 and has purchased and
received goods and products at its Florida facilities
valued in excess of $50,000 from local suppliers and in
turn received said goods and products directly from
points located outside the State of Florida. Respondent is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local 385, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Facts
I. The organizational campaign
Beginning in the middle of September the Union start-
ed an organizational campaign among the employees of
Respondent's Orlando warehouse. Employee James
Green testified credibly in a consistent and straightfor-
ward manner that he initiated the organizational drive.
Green said they used the vehicle of a warehouse softball
team to get the young people in the warehouse together
3 The General Counsel's motion to correct the record dated November
9, 1981, is hereby granted and the record is so corrected
1273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"to initiate the idea of a union" and find out what kind
of support could be mustered for a union. He said that
after a few games he got most of the people together and
that Al Cassella told him that he had helped along with
the union drive about a year before and that he wanted
to stay low-key.
Green arranged more softball games during which he
talked to more people about the Union. Once he discov-
ered that they had more than 50 percent of the people
interested in a union and, at a time when he was pre-
pared to go to the Teamsters hall, Cassella was fired. He
said that when Cassella was fired "a lot of people backed
out. They didn't want any part of it. They were worried
about losing their jobs, a lot of the older people said. So,
I just slacked off for a week and then I started talking to
the guys again, trying to feel what was going on; how
the general attitude was; and to see if the majority of the
people still wanted it. We just lost some of the older
people, some of the people that I was hoping to use as
examples. People who had been there for a while. A lot
of the people that the rest of the people looked up to."
Green went to the union hall where he was given union
pamphlets and authorization cards. He passed out the
cards to his fellow employees, collecting $10 each from
the signers of the cards.4
By letter dated October 16, 1980, Respondent denied
recognition and refused to review the authorization cards
which the Union offered to prove majority status. The
record contains 36 authenticated cards from the unit.
However, as of October 8, 1980, the date of the letter
demanding recognition, six of the employees who signed
cards were no longer in the employ of Respondent. 5
Thus, the Union did not represent a majority of the em-
ployees in the unit through membership card authoriza-
tions at the time it made its demand for recognition. In
mid-September, Green met with Warehouse Supervisor
Joe Boslet to discuss a pending wage increase.6 Boslet
asked Green what improvements could be made by the
Company. Green told him he was concerned over job
security because his friend Al Cassella had recently been
fired. Boslet told Green that if the Union should win,
"they could deplete the stock in the warehouse in two
weeks, close the doors and get rid of everyone."
In the middle of November, Charles Bailes, Respond-
ent's vice-president, called a meeting of the truckdrivers
of the day shift and others in the warehouse and an-
nounced that there would be weekly meetings so that the
drivers could present their grievances or complaints and
' The Union required that each card be accompanied by $10 payment
by the signer to demonstrate the employee's sincerity in wanting to
become a member of the Union. Green withdrew $90 from his personal
bank account and turned it over to the Union to make up for the $10 fees
which certain card signers had not paid at the time they signed. On Octo-
ber 8, 1980, the Union addressed a letter to Respondent stating that it
represented a majority of the unit employees and requesting recognition.
There were 71 employees in the unit.
s The record shows that the warehouse had a high incidence of turn-
over. Those employee names which were not on the bargaining unit per-
sonnel list of October 8, 1980, were: Marvin Evans, J. A. Cates, Tom
Haines, Donald G. Harsey, Michael Lieble, and Robert Trotter.
6 Resp. Exhs. 10 and II show that James Green received a wage in-
crease between September 13 and September 20, rather than in Novem-
ber as he testified. Green admitted that his memory of dates was not
good.
suggestions for improvements on the job. He indicated
that Joe Boslet would be conducting those meetings.
Prior to that time there were no such meetings.
Near the end of November Charles Bailes called an-
other meeting of employees and told them that there
would be a union election and that it was going to be a
free secret-ballot election and added that if the Union
came in the employees would be dropped to minimum
wage; they would start from the ground floor, all the
benefits would be taken away, that they would start
from the bottom; and Respondent did not have to negoti-
ate for a year because he would just drag it along. 7
Frank McCollum, a former warehouse employee of
Respondent, testified that on November 10 or 11 he had
a conversation with Bailes in Bailes' office. He said that
Bailes told him that it was time for his raise and that he
did not want the Union to think that giving him a raise
was a bribe. Bailes then told McCollum that if he found
out that McCollum was a union man he was going to let
him go. Bailes said that he would find out. Bailes also
asked him what he thought of the Union. McCollum re-
sponded that he did not know. McCollum testified fur-
ther that Bailes asked him to vote no. McCollum said
that about 2 weeks before the election he had another
conversation with Bailes in the breakroom of the ware-
house in the presence of the night shift and mechanics,
approximately 15 people, at a meeting called by Bailes.
McCollum said Bailes "asked around, what did each in-
dividual-you know each person-thought about the
Union. And asked them if they had ever been involved
with a union."
McCollum testified further that on December 16 there
was another meeting with Bailes in the warehouse where
they kept broken cartons. He said this conversation in-
volved only Bailes and himself, wherein Bailes asked him
if he attended a union meeting that Sunday. McCollum
replied that he had not. Bailes also asked McCollum who
the union leader was, to which McCollum replied that
he did not know. He asked if McCollum ever spoke to
the union leaders and then asked him about Green, indi-
cating that he, Bailes, heard that Green was "strong
union." McCollum replied that he had heard that Green
was a strong leader from a "couple of sources."
Later on that day McCollum saw Bailes speaking to
Boslet and, still later, about 4:30 p.m. Bailes called an-
other meeting of all the warehousemen. He brought up
the subject of the union meeting that was held the previ-
ous Sunday and asked a number of the employees what
they thought about the Union.
Charles Bailes denied making any threats to McCol-
lum. I credit McCollum and not Bailes. 8
T In considering Green's testimony and that of Bailes and Boslet, wher-
ever a conflict exists I credit Green even though his memory of dates
was admittedly not the best, and not Bailes and Boslet whose testimony
was not only inconsistent, but was given in a hesitant and guarded
manner, selecting their words carefully as if they were rehearsed, but not
well enough.
8 Bailes is a well-dressed smooth-talking executive type who appeared
to have come up the hard way. He is in a tough business. I received the
definite impression that he was capable of committing the alleged acts
without giving the matter a second thought.
1274
ABC LIQUORS, INC.
Frank McCollum was discharged for stealing liquor
from the warehouse, having been implicated by Frank
Timmons, Respondent's temporary undercover man. As
previously indicated, the unfair labor practice charge al-
leging an 8(a)(3) violation concerning Frank McCollum
was dismissed by the Regional Director. Even though
the unfair labor practice charge involving McCollum
was dismissed, I do not consider his discharge, standing
alone, as determinative of McCollum's credibility con-
cerning the alleged 8(a)(l) activity engaged in by Re-
spondent through Vice President Bailes.
Frank Timmons, hired as a temporary undercover
agent of Respondent, 9 provided the evidence of theft
which gave Respondent the motive for discharging
McCollum.
2. Respondent hires temporary undercover
operative Frank Timmons
On November 15, Vice President Bailes hired under-
cover operative Frank Timmons on a temporary basis.
The term of his employment was to be 30 days. Tim-
mons was first interviewed by Dave Casto, Respondent's
security officer, on the evening of November 13 and
Casto referred Timmons to Bailes. At the start of his em-
ployment Bailes told Timmons that his job responsibi-
lities were to report to Bailes, Boslet, and Casto.
According to Bailes, Timmons came to him after his
initial meeting and asked to whom he should report.
Bailes told Timmons to report to Casto and, either at this
meeting or a subsequent meeting, Bailes told Timmons to
report to Boslet. Bailes also told Timmons that he could
report directly to him, Bailes.
Timmons testified that Bailes told him he was to
report on any union activities occurring in the ware-
house and to acquire information regarding thefts of
liquor. Bailes denied this. Bailes testified that he told
Timmons, "You've got-there's a complication here.
You're here to take care of some thievery; but it's com-
plicated over there by the fact that we have a union
problem, and hopefully you know, you can handle that."
Thefts of liquor had been a continual problem over the
years with Respondent. However, prior to this time, Re-
spondent had never hired a temporary undercover man,
even though the Company had previously experienced
liquor shortages on a continual basis. According to Tim-
mons, Bailes told him that it was imperative for him to
be in working that day (November 15) because eligibility
for voting was cut off as of November 15. On cross-ex-
amination, Bailes said he did not recall making this state-
ment. But, on redirect examination, Bailes flatly denied
telling Timmons that he was hired that day in order for
him to be eligible to vote in the election.
Timmons received the following undated memoran-
dum from security officer Dave Casto which provides in
pertinent part:
Your assignment is one of an undercover opera-
tive. You must work in the utmost secrecy; conse-
9 For reasons, which will be discussed further, based on the entire
record in this case, I conclude that Respondent's actions demonstrate the
extent that it would go, including lying under oath, to deny its employees
their legal rights and destroy their organizational efforts.
quently your points of contact must be discreet, out
of sight and hearing of co-workers, and must be
limited to me or in my absence to Mr. Bailes, Mr.
Vannoy, or if absolutely necessary you may go to
Mr. Holloway directly.
Your primary duty is to gain the confidence, and
establish a rapport with all employees in the ware-
house, and through discussion and observation de-
termine the identity and plan of action of those indi-
viduals who may be spreading dissention [sic] and-
or advocating any union activity. Additionally, at-
tempt to determine the general attitudes of all em-
ployees related to union activity. You must take no
action which might indicate that you are anyone
other than a normal warehouse employee. Since
you have experience in investigative techniques, I
need not remind you of the importance of total se-
crecy. Under no circumstances must you reveal that
you had conversations with anyone in upper man-
agement, or that they have any knowledge of your
present position or activities.
Your secondary duty is to determine any prob-
lems or modus operandi related to pilferage or diver-
sions of property within or leaving the warehouse.
Monitor the following:
I will discuss other concerns as I gain more in-
sight into matters of concern. Please contact me
after each duty day to discuss your status. I may be
reached at 293-3779. Follow any other guidance or
instructions received from those in your chain of
command.
Good Luck,
Dave Casto
Besides performing the normal duties of a warehouse-
man, Timmons was to engage in undercover activities.
He was paid $4 per hour, the normal compensation for a
warehouseman, and he received an additional $1.50 per
hour as compensation for his undercover work.' 0
After Timmons' discussion with Bailes, Bailes lead
Tinmons to Boslet's office and introduced him to
Boslet. t Boslet then iterated that Timmons was to
report on thievery and union activities in the warehouse.
Boslet referred specifically to one of the employees he
felt was the main union organizer, James Green, and told
Timmons that "it would be good if I could get something
on him, that would justify firing him. " Timmons reported
nightly by telephone and weekly by written reports to
Casto. These reports contained information relating to
both the union activities and to thievery.' 2
II The check for the undercover work was sent to him by mail to his
residence to avoid detection by his fellow employees.
" Boslet testified that he was called to Bailes' office.
12 Respondent stipulated that Timmons did report on union activities
and conversations concerning the union support among Respondent's em-
ployees to Bailes, Casto, and Boslet. However, Respondent did not stipu-
late that these reports were in response to instructions for Timmons to
make them. On December 7, 'Timmons and another employee, who was
Continued
1275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after James Green was fired on December 11
or 12,13 Bailes met with Timmons, and complimented
him on doing a good job in finding a way for the Com-
pany to justify discharging Green. (Bailes testified that
he "may have complimented him on his work with Mr.
Green.") On this occasion and I week later, Bailes also
asked Timmons to identify the union supporters and to
give Bailes a reading on employee sentiments. Bailes
denies this. Again, I credit Timmons.
A few days before the election Bailes again asked Tim-
mons for names of those who were supporting the Union
and how Timmons felt the election would go. Bailes also
denies this. Timmons told Bailes that he thought the vote
would be close, after which Bailes told Timmons that,
even though he had worked beyond the 30 days for
which he was hired, he wanted Timmons to stay to vote
in the election.' 4 When Timmons returned to get his
paycheck a few days before Christmas, Bailes told him
that his lawyers would probably contact him about some
union charges and that there were ways to circumvent
the truth. Bailes testified, "I told him that we never
wanted him to tell a lie about anything that he had ever
done, and that sometimes the way people express things
can leave an impression that is false."
Casto told Timmons on December 7 that he would be
interrogating employees believed to be union supporters
that following week. On December 9, Casto told Tim-
mons that he was following Green because he needed to
get "something on him to fire him." Later that day,
Casto fired James Green. David Bowman, a warehouse-
man employee, was interrogated by Casto on December
11. Casto asked Bowman if he had given Jim Green $10
for the Union. Green had previously collected $10 from
each employee who signed a union card. In agreement
with the General Counsel, I find that, by asking Bowman
if he had given Green money, Casto was, in effect,
asking Bowman if he had signed an authorization card.
Besides this interrogation about his union activities,
Casto tape-recorded the conversation. 1 During that
conversation Casto accused Bowman of stealing liquor
which Bowman denied. Casto then threatened Bowman
that if he did not sign a statement to that effect that
Bowman would go to prison, informing Bowman that he
also hired to report on union activities and thievery, met at Casto's home.
Timmons and the other employee checked off the names of employees
they believed would vote for the Union. Casto told Timmons that Bailes
had become paranoid and that they had to forget the thievery part of the
assignment and that they had to reduce the number of people in the
warehouse because the election was very close and they had to get some-
thing on these people to get them out. In addition, Casto told Timmons
that Respondent had a feverish dislike for Jim Green and they wanted to
eliminate him.
is Green, along with McCollum, had filed unfair labor practice
charges concerning their discharges alleging 8(aX3) violations As previ-
ously indicated, the Regional Director dismissed these charges against
Respondent concerning McCollum and Green. As indicated above,
McCollum was fired for stealing. Green, according to Respondent, was
fired for possession of a controlled substance (marijuana).
"t Timmons quit working for Respondent the day of the election be-
cause he believed his life was in jeopardy and that his undercover assign-
ment might be exposed.
s1 Casto, although still in the employ of Respondent, did not testify.
(Casto) is a former employee of the FBI, CIA, and Los
Angeles police department. "
In addition to the Orlando warehouse, Respondent op-
erated 153 retail liquor stores in central Florida (70 with
lounges or bars). Respondent's employee at store 3,
Robert Kortus, upon noticing that the only janitor em-
ployed there had been absent asked the store manager,
Phillip Smith, the whereabouts of the janitor. That con-
versation took place on December 10. Smith told Kortus
that the janitor, Terry Tinkerton, had been sent to the
warehouse. On December 14, Kortus again asked Smith
about Tinkerton. Smith told Kortus, "don't say anything
to anybody, but . . . Terry was sent down to the ware-
house to vote 'NO' against the Union."' 7
Kortus persisted in his inquiries by asking Assistant
Store Manager Steve Panzner if Panzner knew about
Tickerton's transfer. Panzner too told Kortus that Tin-
kerton had been sent to the warehouse to vote against
the Union.
3. Further discussion and conclusions
On December 16, 3 days before the election, Bailes
asked Frank McCollum to meet with him. At the meet-
ing Bailes asked McCollum if he attended the union
meeting that previous Sunday to which McCollum re-
sponded in the negative. McCollum testified that Bailes
also asked him what the Union wanted and who was the
union leader. McCollum told him he did not know.
Bailes then asked if McCollum spoke to union leaders.
Again McCollum said "no." McCollum then was asked
whether he had heard that Green was "strong union."
McCollum replied that he heard Green mentioned as a
strong union man a couple of times.
McCollum testified further that at or about 4:30 p.m.
that day Bailes called a meeting of all the warehousemen
present in the warehouse at the time. He said that the
first thing that Bailes brought up was the union meeting
held the previous Sunday. He then told the employees
about James Green's termination. He then inquired of a
few what they thought about the Union.
Bailes testified that at every meeting he "encouraged
employees to attend every union function that they
could." However, Bailes denied that he asked McCollum
what the Union wanted and who the union leader was.
He denied telling McCollum that he had heard that
James Green was a strong union leader.18 Bailes ad-
mitted that he may have asked the employees if they had
gone to a union meeting the prior Sunday and that he
especially encouraged the employees to attend the union
meeting at Moss Park. Bailes denied, however, interro-
gating the employees about their attendance at this meet-
ing. Bailes admitted discussing James Green's termination
with the employees but denied asking a few of the em-
ployees what they thought about the Union.
This case turns largely on the credibility of the various
witnesses. As previously stated, I have discredited the
'e Bowman's 8(a)(3) charge, as previously stated, was withdrawn by
the Union.
1' Smith denied that he had any such conversation with Kortus. I
credit Kortus. Smith was evasive and hesitant.
18 I credit McCollum with respect to this conflicting testimony.
1276
ABC LIQUORS, INC.
testimony of Vice President Charles E. Bailes, Jr., and
that of Joseph Boslet, general warehouse supervisor for
Respondent, among others.
An example of Bailes' testimony, taken from the tran-
script of the proceedings, follows. On cross-examination
by the General Counsel Bailes testified as follows:
Q. Isn't it true that you told Mr. Timmons that
you wanted him to begin working that day so that
he wold be eligible to vote in the NLRB election?
A. I don't recall telling him that.
Q. You don't recall, or you deny it?
A. I don't recall.
Q. Okay.
A. If I did recall, I'd tell you.
Q. Did you at any time tell Mr. Timmons that
you wanted him to inform you of union activities?
A. I'll say no, and I'll qualify that. I don't re-
member ever ordering, suggesting or any way de-
manding that he report to me on union activities.
Q. Did you instruct Mr. Timmons to report to
Mr. Casto or Mr. Boslet, concerning union activi-
ties?
A. I sure did.
Q. On union activities?
A. Yes.
Q. To whom? To whom did you want him to
report on union activities?
A. Mr. Casto.
Q. When did you tell Mr. Timmons this?
A. Oh, sometime about-when did I tell who
this?
Q. Mr. Timmons.
A. I never told Mr. Timmons this.
Q. My question was: Did you at any time tell Mr.
Timmons to report to Mr. Casto or Mr. Boslet?
A. On union activities, no, I never told him that.
Q. Who did you tell?
A. I'm confused.
Q. You must have told someone that.
A. Could we have your first-your question-I
think either you got mixed up or I did.
Q. You're right; one of us is confused. Did you
ask anyone to report on union activities?
A. Yes.
Q. Who did you ask to report on union activities?
A. Mr. Casto.
Q. To whom was Mr. Casto to report?
A. Me.
Q. And Mr. Timmons was to report to Mr.
Casto?
A. Right.
Q. Okay. So isn't it safe to assume that Mr. Tim-
mons was also to report on union activities?
Q. Wouldn't it be safe to assume, then, that Mr.
Timmons, since he was to report to Mr. Casto,
would also be reporting on union activities?
A. Yes.
With respect to the diametrically opposite testimony
between Bailes and Timmons, Bailes, after acknowledg-
ing that there was conflicting testimony between him
and Timmons, testified as follows:
I'll say that I have even more respect for Mr. Tim-
mons' intelligence now than I did when he was
working for me. To me, he is an excellent witness. He
has dodged, in my opinion, around the truth and
has left impressions, either by not replying or reply-
ing-he has left impressions that in my opinion are
false and, when someone leaves that impression
whether outright lie or not, when he leaves that im-
pression, he has in fact-and led someone to believe
that and left that impression-he has not told the
truth. 9
On direct examination Boslet testified that Timmons
told him some warehousemen were getting together in a
park and, "I said, 'well, is there any booze involved?'
And, he said, 'well, again, I'm not sure at this time, but I
will get more information on it, and I will report to you.'
And again that's as far as it went."
As for General Warehouse Supervisor Boslet's testi-
mony, which conflicted with Green's and Timmons', I
find it also to be incredible. In that regard, Boslet testi-
fied, concerning a conversation between Timmons and
himself about a union meeting in Moss Park, as follows:
Q. Mr. Boslet, during your initial meeting with
Timmons, can you state whether or not the subject
of the union even came up at all?
A. I think that I made a statement that, "we have
union problems." I feel pretty sure that I did, be-
cause I said, "in your investigation here with thiev-
ery, I know you're gonna hear a lot of talk about
unionism and about the organization." I'm quite
sure I mentioned it.
Q. What, if anything, did Mr. Timmons say to
you at that time?
A. Again, he told me-says, "I understand that
some warehouse employees and some drivers are
having a meeting at a park, concerning I'm sure he
said-concerning union activities. And, my first-I
think my first response was, 'Well who's furnishing
the booze?"'
On cross-examination Boslet testified as follows:
Q. Mr. Boslet, what did Mr. Timmons tell you
with regard to any union activities, in connection
with this meeting at the park?
A. He didn't tell me anything.
Boslet said that later during the conversation Timmons
told him they were having a meeting in the park and
they were going to talk about the Union.
19 The words "To me, he is an excellent witness," in referring to Tim-
mons because, according to Bailes, he lied under oath reveals more about
Bailes than Timmons.
1277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In my judgment, the General Counsel has proven by a
preponderance of credible evidence that Frank Timmons
was an agent of Respondent within the meaning of
Section 2(13) of the Act; that he was hired as an investi-
gator and instructed to report to the vice president, the
general warehouse supervisor, and the warehouse secu-
rity director about union activities and thefts. Respond-
ent admitted that Timmons did in fact report to Bailes,
Boslet, and Casto on union activity and thievery. I find
that the reports were submitted pursuant to instructions
from management. Respondent's failure to call Ware-
house Security Director Casto to testify leaves Timmons'
testimony with respect to his conversation with Casto
uncontroverted. AM General Corporation, 224 NLRB 845
(1976); Florida Steel Corporation, 214 NLRB 264 (1974);
Farah Manufacturing Company, Inc., 214 NLRB 304
(1974).
I find that Boslet threatened to close the warehouse if
the Union should win the election. According to Green,
Boslet told him that Respondent could go to, "direct de-
liveries," meaning deliveries directly from wholesale dis-
tributors to Respondent's retail stores instead of routing
to deliveries through the warehouse and then to the
retail stores.
The unrebutted testimony of David Bowman concern-
ing his conversation with Dave Casto proves interroga-
tion by Respondent's agent. Casto asked Bowman if he
had given James Green $10 which in effect was asking
Bowman if he had signed a union authorization card. I
find that to be a violation of Section 8(a)(l) of the Act.
I find that the remarks to Robert Kortus by Smith and
Assistant Manager Panzner concerning the transfer of
Terry Tinkerton from store 3 to the warehouse for the
purpose of voting against the Union in the upcoming
election to be independent violations of Section 8(a)(1) of
the Act.2 0
In sum, I find that Respondent interrogated its em-
ployees; threatened them with discharge if they support-
ed the Union; threatened them with plant closure; sur-
veilled an employee with the intent to discharge him be-
cause of his union activity; hired an employee so that he
would be eligible to vote in the union election; instructed
an employee to surveil the union activities of its other
employees and to submit reports on the same; and in-
formed an employee that another employee had trans-
ferred to the warehouse to vote against the Union in the
election, each such conduct is in violation of Section
8(a)(l) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce. They are unfair labor practices
20 Panzner, assistant store manager, did not testify. Therefore, Kortus'
testimony concerning Panzner's statement stands unrebutted.
within the meaning of Section 8(a)(1) and 2(6) and (7) of
the Act.
CONCLUSIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
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 following unit is an appropriate unit within the
meaning of the Act:
All truck drivers, shipping and receiving employees,
storage employees, mechanics and warehouse inven-
tory employees, employed by the Employer at its
warehouse located in Orlando, Florida; but exclud-
ing office clerical employees, casual employees,
guards ard supervisors as defined in the Act.
4. Respondent has interfered with, restrained, and co-
erced its employees in the exercise of rights guaranteed
in Section 7 of the Act and committed unfair labor prac-
tices within the meaning of Section 8(a)(l) of the Act by:
(a) Interrogating employees about their union activi-
ties.
(b) Threatening its employees with discharge if they
supported the Union.
(c) Threatening its employees with plant closure.
(d) Surveilling an employee with the intent to dis-
charge the employee because of his union activities.
(e) Hiring an employee so that he would be eligible to
vote in the union election.
(f) Instructing an employee to surveil the union activi-
ties of its employees and to submit reports on the same.
(g) Informing an employee that another employee had
been transferred to the warehouse to vote against the
Union in the election.
5. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom
and take affirmative action to effectuate the policies of
the Act, including the posting of appropriate notices.
The Charging Party takes the position that a bargain-
ing order should issue in this case. Respondent and the
General Counsel oppose the issuance of a bargaining
order as being inappropriate. At the time of the demand
for recognition the Union did not represent the majority
of the employees of the Employer. For that reason
alone, I do not recommend a bargaining order in this
case.
The General Counsel has proven by a preponderance
of the credible evidence that Respondent has engaged in
all of the unfair labor practices alleged in the complaint.
Moreover, I find merit to the objections to the election.
Accordingly, I shall recommend that the election held
on December 19, 1980, in Case 12-RC-5955 be set aside,
that said case be remanded to the Regional Director for
Region 12 to conduct a new election when he deems
1278
ABC LIQUORS, INC.
that the circumstances permit the free choice of a bar-
gaining representative.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDERS
The Respondent, ABC Liquors, Inc., Orlando, Flor-
ida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees.
(b) Threatening them with discharge if they support
the Union.
(c) Threatening its employees with plant closure.
(d) Surveilling employees with the intent to discharge
employees because of their union activities; hiring em-
ployees so that they would be eligible to vote in the
union election; instructing employees to surveil the union
activities of other employees and to submit reports on
the same; and informing employees that other employees
had been transferred to the warehouse to vote against
the Union in the election.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the right of self-
organization, to form labor organizations, to join or assist
Teamsters, Chauffeurs, Warehousemen and Helpers
Local 385, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain col-
lectively through representatives of their own choosing,
and to engage in other activities for the purpose of col-
lective bargaining or other mutual aid or protection as
2I In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
guaranteed in Section 7 of the Act, or to refrain from
any or all such activities, except to the intent that such
rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employ-
ment, as authorized in Section 8(aX3 ) of the Act as modi-
fied by the Labor Management and Disclosure Act of
1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at its warehouse and retail stores in the Orlan-
do, Florida, area copies of the attached notice marked
"Appendix."2 2 Copies of said notice, on forms provided
by the Regional Director for Region 12, after being duly
signed by Respondent's authorized representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that a second election by
secret ballot shall be conducted among the employees in
the unit found appropriate herein, at such time as the Re-
gional Director for Region 12 deems appropriate. The
Regional Director shall direct and supervise the election,
subject to the Board's rules and regulations. Eligible to
vote are those in the unit who were employed during the
payroll period immediately preceding the date of issu-
ance of the notice of second election, including employ-
ees who did not work during that period because they
were ill, on vacation, or temporarily laid off.
" In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1279