Armon Co.

National Labor Relations Board - Board Decisions

May 30, 1986

279 N.L.R.B. 1245 (N.L.R.B. 1986)

ARMON CO. 1245
Armon Company and Teamsters Union Local No.
115, a/w International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers
of America . Cases 4-CA-13773, 4-CA-13812,
and 4-CA-13845
30 May 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 24 October 1984 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings,I and
i The General Counsel has excepted to some of the judge 's credibility
findings . The Board's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 363 (3d Or
1951) We have carefully examined the record and find no basis for re-
versing the findings
8 We agree with the judge that a remedial bargaining order is warrant-
ed. Our recent decision in PBA Inc, 270 NLRB 998 (1984), is distinguish-
able In denying a bargaining order, the Board relied on, inter alia, a
widely supported strike and the signing of additional authorization cards
after the unfair labor practices had occurred The unfair labor practices
consisted solely of the employer's threats to close the facility if employ-
ees struck and to fire an employee if he signed an authorization card, nei-
ther of which was carried out We expressly distinguished PBA from situ-
ations "where the respondent 's 8(a)(1) conduct is coupled with any un-
lawful disciplinary action " Id at 999 Further, the Respondent , unlike
the employer in PBA, committed additional unfair labor practices, includ-
ing an 8(a)(3) violation , after the strike and additional card signing oc-
curred , thus underscoring its continuing resolve to coerce and retaliate
against employees for supporting the Union
We disavow reliance on the judge's finding in sec II,C,4, pars 8, 9,
and II that a bargaining order is appropriate in the instant case because
the Respondent evidently was terminating its business
Based on her concurring opinion in Regency Manor Nursing Home, 275
NLRB 1261 (1985), Member Dennis finds the Respondent 's unfair labor
practices sufficiently serious and pervasive to warrant issuing a bargain-
ing order absent mitigating circumstances
In addition to its other unfair labor practices ( i e, interrogating em-
ployees about their union support and discouraging employees from
wearing union insignia), the Respondent committed several "hallmark"
violations , including discharging two union adherents , unlawfully laying
off an employee on five occasions, unlawfully reducing two employees'
work hours, imposing more onerous working conditions on an employee,
and threatening to close its facility and to discharge employees because
of unionization
Such unfair labor practices are likely to preclude a fair second election
as they were committed by the Respondent's top management officials-
Armon , the president , and Rose, the office and credit manager-and af-
fected five of the eight bargaining unit members
Member Dennis agrees with her colleagues for the reasons they state
that PBA Inc, supra, is distinguishable She finds that the employees'
strike and the signing of an additional union authorization card after most
of the unfair labor practices occurred do not preclude issuing a bargain-
ing order in the instant case
conclusions2 and to adopt the recommended Order
as modified.3
We find, contrary to the judge, that Respondent
Office Manager Rose's 13 June 1983 statements to
employee Cahill constituted an unlawful threat to
close the Respondent's facility. While Rose and
Cahill were alone in Respondent working Foreman
Tyler's office, Rose told Cahill that Respondent
President Armon " wasn 't going to put up with a
union" and "would close down before . . . he
would let a union in"; that the Union had a "bad
reputation"; that the apparent head of the Union,
John Morris, was "ruthless," and that he knew of a
warehouse that was firebombed during one of the
Union's organizational campaigns and that Armon
would close down before he would let that happen.
The judge found Rose's remarks related to the
facility's closure in response to union violence, not
the Union's organizational drive, and was therefore
lawful. We disagree.
In NLRB v. Gissel Packing Co., 395 U.S. 575, 618
(1969), the Court stated:
[A]n employer is free to communicate to his
employees any of his general views about un-
ionism or any of his specific views about a
particular union , so long as the communica-
tions do not contain a "threat of reprisal or
force or promise of benefit." He may even
make a prediction as to the precise effect[s] he
believes unionization will have on his compa-
ny. In such case, however, the prediction must
be carefully phrased on the basis of objective
fact to convey an employer's belief as to de-
monstrably probable consequences beyond his
control . . . ."
Rose's remarks failed to meet the Gissel standard
for protected speech. Thus, Rose stated without
qualification that the Respondent would close its
facility before tolerating unionization. His subse-
quent references to alleged union violence, though
arguably based on objective fact, did not explain or
clarify his initial remarks, nor suggest that any clo-
sure would be compelled by future union miscon-
duct rather than the Respondent's own desires. We,
therefore, find that Rose's comments constitute a
retaliatory threat violating Section 8(a)(1) of the
Act.
9 The parties stipulated that the Respondent agreed to reinstate discn-
minatees Jeffries and Perez, with backpay for earnings lost before the 7
July 1983 strike, as part of a strike settlement agreement As there is no
evidence that the Respondent did not comply with the agreement, we
shall delete reference to Jeffries and Perez from the recommended
remedy and from par 2(a) of the recommended Order, and shall issue a
new notice to employees
279 NLRB No. 158
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Armon Company, Bensalem, Pennsylva-
nia, its officers, agents , successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 2(a).
"(a) Make whole Michael Devlin and Al Wilson
for airy loss of earnings and other benefits suffered
as a result of the discrimination against them, in the
manner set forth in the remedy section of the deci-
sion."
2. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
I find that the record as a whole augues well for
the realistic possibility of a fair election. Accord-
ingly, a bargaining order is wholly inappropriate.
The appropriateness of a bargaining order turns
on the impact on employees' choice and the elec-
tion process.' It is not enough to analyze only the
respondent's unfair labor practices. Instead, the sur-
rounding and succeeding circumstances also must
be considered in assessing the potential for a fair
and uncoerced election.
Several significant events occurred here after
most of the Respondent's misconduct. The employ-
ees' response to the Respondent's misconduct was
to engage in a strike that lasted nearly 2 weeks. On
the first day of the strike another employee in the
small unit signed an authorization card. The strike
and additional card signing tend to show that the
employees were not intimidated. Any lingering ef-
fects of the Respondent's misconduct is mitigated
also by the Respondent's reinstatement with back-
pay of the two discharged employees.
The events occurring subsequent to most of the
Respondent's misconduct demonstrate that the em-
ployees have not been inhibited by the Respond-
ent's misconduct and reveal an effort by the Re-
spondent to resolve differences. I would not find
on this record that the possibility of erasing the ef-
fects of the Respondent's unfair labor practices by
the use of traditional remedies is so slight as to
render uncertain the possibility of a fair election.2
PBA Inc, 270 NLRB 998, 999 (1984)
2 The majority describes certain factual differences between PBA,
supra, and this case They overlook, however, the critical similarity in
the two cases for the purpose of determining impact on employees'
choice and the election process The bottom line in both cases is that the
employees ' actions demonstrate convincingly that they were not inhibited
by the company's conduct
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 coercively question you about
your union support or activities.
WE WILL NOT threaten you with plant closure if
you select the Union to represent you.
WE WILL NOT threaten to discharge you for sup-
porting the Union.
WE WILL NOT discourage you from wearing
union insignia.
WE WILL NOT discharge you, lay you off, reduce
your work hours, or otherwise discriminate against
any of you for supporting Teamsters Union Local
No. 115, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or any other union.
WE WILL NOT refuse to recognize and bargain
with Teamsters Union Local No. 115, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive bargaining representative of the employees
in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make Michael Devlin and Al Wilson
whole for any loss of earnings and other benefits
resulting from the discrimination against them, less
any net interim earnings , plus interest.
WE WILL notify William Jeffries and Santiago
Perez that we have removed from our files any ref-
erences to their discharges and that the discharges
will not be used against them 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 warehousemen and drivers employed at
the Bensalem facility, excluding all other em-
ployees including sales persons, office clericals,
guards and supervisors as defined in the Act.
ARMON COMPANY
Joel H. Levinson, Esq., for the General Counsel.
ARMON CO.
John H. Widman and John J. McAleese Jr., Esgs. (Bray,
McAleese, McGoldrick & Susanin), of King of Prussia,
Pennsylvania , for the Respondent.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
The charge in Case 4-CA-13773 was filed by Teamsters
Local Union No. 115, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union) on June 9, 1983,1 and amended on
June 15, while the charges in Cases 4-CA-13812 and 4-
CA-13845 were filed by the Union on June 29 and July
14, respectively. The Regional Director for Region 4 of
the National Labor Relations Board (the Board) issued a
complaint and notice of hearing in Case 4-CA-13812 on
August 10 and subsequently issued an order consolidat-
ing cases , consolidated complaint and notice of hearing
on August 30, incorporating allegations contained in the
charges in Cases 4-CA-13845 and 4-CA-13773. The
consolidated complaint alleges that Armon Company
(Respondent or the Company) violated Section 8(a)(1),
(3), and (5) of the National Labor Relations Act (the
Act). The issues presented are whether (a) Respondent
violated Section 8(a)(1) of the Act through coercive in-
terrogation of employees regarding their union activity
and through various coercive threats directed at them
for such activity, (b) Respondent discriminatorily dis-
charged two employees, reduced the hours of work of
two, laid off one employee, and imposed onerous work-
ing conditions on another, all because such employees
supported the Union, thereby violating Section 8(a)(3) of
the Act, and (c) whether in light of Respondent's viola-
tions of Section 8(a)(3) and (1) of the Act, its refusal to
recognize and bargain with the Union violated Section
8(a)(5) of the Act.
Respondent's answer admits the commerce and juris-
dictional allegations, the status of the Union, and the su-
pervisory status of its president, Joseph Armon, and
Office Manager Kenneth Rose. Respondent, however,
denies the commission of any unfair labor practices in its
answer.
The hearing in this case took place before Administra-
tive Law Judge Leonard N. Cohen in Philadelphia,
Pennsylvania, on December 7 and 8. After the death of
Administrative Law Judge Cohen, the parties were in-
formed of the alternative methods of concluding this
case and agreed that the chief administrative law judge
should appoint another administrative law judge to pre-
pare and issue a decision on the record made before Ad-
ministrative Law Judge Cohen. On September 24, 1984,
the chief administrative law judge notified the parties of
my appointment to the case. The record2 demonstrates
that the parties were given full opportunity to appear,
examine , and cross-examine witnesses and to argue orally
' All dates are in 1983 unless otherwise indicated
2 The General Counsel's unopposed motion to correct the transcript,
dated January 30, 1984, is granted and received in evidence as G C Exh.
16
1247
and that Respondent and the General Counsel filed
briefs.
I have carefully considered the transcripts and briefs
and, based on them, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Pennsylvania corporation engaged in
the wholesale distribution of flooring products from its
sole facility in Bensalem , Pennsylvania. During the calen-
dar year preceding issuance of the complaint the Re-
spondent purchased and received materials valued in
excess of $50,000 directly from points outside the Com-
monwealth of Pennsylvania. Respondent admits, and I
find, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The Respondent further admits, and I find, that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At the times material to this case, Respondent operat-
ed its business utilizing three truckdrivers, four ware-
housemen, a working foreman, and a janitor. A total of
four trucks were used by Respondent in making its deliv-
eries to customers in a 50- to 75-mile radius of its facility.
Two of the trucks were owned outright by Respondent
while the remaining two were leased to Respondent
from another concern owned by Joseph Armon, presi-
dent of Respondent. The record does not reflect the
terms of the lease arrangement.
Union activity among Respondent's employees began
around June 1 when truckdriver William Jeffries circu-
lated among the employees asking them for their tele-
phone numbers ostensibly for organizing a picnic. How-
ever, Jeffries testified that one employee, Dan Fleming,
asked him if the phone number was for the Union and
Jeffries replied that it was but to "keep a low profile."
On the other hand, Fleming, called as a witness by the
General Counsel, related that he learned from employee
Santiago Perez that Jeffries' purpose in securing the tele-
phone number was for union reasons . In any event, Jef-
fries testified that he turned the telephone numbers over
to his father who utilized them to call the employees to
prompt their interest in union organization.
Subsequently on June 6 and 7, authorization cards on
behalf of the Union were circulated among Respondent's
employees and, as will be detailed in greater length,
supra, six of the employees signed such cards. It is undis-
puted that Respondent learned of the union activity even
before the cards were signed. Thus Fleming, without
contradiction from Kenneth Rose, Respondent's office
manager and credit manager, testified that on June 2 he
went to Rose and told him that someone was calling
around about the Union and he knew who it was. Rose
asked him who it was, and Fleming said that it was Jef-
fries but added that Rose should not worry because
Fleming would vote no. Fleming asked Rose if he
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thought Armon would close down when he heard about
the union activity and Rose responded that he did not
know but that Armon would not like it.
B. The Alleged Independent Violations of Section
8(a)(1)
Respondent began almost immediately its response to
the union campaign. Employee and truckdriver Al
Wilson testified that on June 2 Rose approached him at a
time when Wilson was in the main office and asked
Wilson if he had received a phone call. Wilson replied
that he had and Rose inquired who it was from. Wilson
responded that it was the Teamsters and Rose inquired
which local. Wilson said he did not know. Rose did not
specifically deny in his testimony for Respondent the
questions attributed to him by Wilson and admittedly
talked to employees including Wilson regarding the or-
ganizational attempt. In the absence of specific denials by
Rose and because Wilson's testimony is generally consist-
ent with other questions and remarks attributed to Rose
by other employees, Wilson is credited. The complaint
alleges that Rose's questions to Wilson constituted coer-
cive interrogation in violation of Section 8(a)(1) of the
Act. No explanation for Rose's questions of Wilson were
offered to Wilson and no explanation was offered at the
hearing herein. Under these circumstances and in view of
the other independent violations of Section 8(a)(1) of the
Act found below, I conclude that the interrogation of
Wilson violated Section 8(a)(1) of the Act as alleged.
The absence of any specific evidence that Wilson person-
ally found the remark coercive does not preclude the ex-
istence of the violation since the test of coercion is an
objective one rather than a subjective one. It is only nec-
essary to establish that the questions "may reasonably be
said to have a tendency to interfere with the free exer-
cise of employee rights under the Act." El Rancho
Market, 235 NLRB 468, 471 (1978).
While the complaint alleges another instance of inter-
rogation by Rose on June 6, the testimony presented es-
tablished that the incident on which the allegation is
based occurred on June 3. In this regard, employee
Thomas Cahill testified that on that date Rose ap-
proached him in the warehouse and told him that the
employees really surprised him and asked Cahill if the
"guys" got together and had a meeting or something or
did the Union come to them. Cahill responded sarcasti-
cally in a manner indicating his union support.
Rose concedes that he may have asked Cahill the
question attributed to him. In view of this concession,
Cahill is credited. In the absence of an explanation for
the question and not withstanding Cahill's response
which indicated his union support, Rose's question,
viewed from an objective standpoint, was clearly de-
signed to compell not only a declaration by Cahill of his
union inclination but to ascertain the strength of other
employee conviction and support of the Union. Cahill
was not identified as a union supporter prior to Rose's
question. Accordingly, I conclude that Rose's question
violated Section 8(a)(1) as alleged.
Another instance of unlawful interrogation by Rose
coupled with an unlawful threat to close Respondent's
facility in view of the union activity was alleged in the
complaint to have occurred on June 8. There was a simi-
lar allegation in the complaint regarding Rose alleged to
have occurred on June 13. While there was no evidence
presented to establish the violation alleged to have oc-
curred on June 8, testimony of Wilson and employee Mi-
chael Devlin was produced by the General Counsel re-
garding the June 13 allegation. Specifically, Wilson testi-
fied that on June 13 he was in the shipping office with
Devlin at which time he discussed with Rose, who was
also present, a window having been broken out at the fa-
cility. It appears that in that discussion Rose attributed
the window breaking to the Union and stated that it was
only the beginning, that Armon had made up his mind
that he was going to close the warehouse, liquidate the
stock, rent the building, and live off the income, and that
there would be a lot of unemployment. Rose referred to
another company which had had to sell a building in
Philadelphia and rent a smaller building in Bensalem be-
cause of their union contract. At that point, according to
Wilson, Rose asked him if the Union had promised him
anything. Wilson responded negatively and Rose went
on to state that the local Teamsters Union involved in
the employee campaign was worse than another local,
that nobody liked John Morris (the apparent president or
head of the Union) and concluded by stating that Armon
would never recognize the Union and would go out of
business. The testimony of Devlin generally supported
that of Wilson. However, Devlin attributed more specific
questions to Rose. Thus he stated that Rose asked him if
he knew anything about Local 107 or 115, if he knew
anything about Morris, and if Devlin had signed a card
with Local 115. Devlin had answered the first two ques-
tions negatively and the last question affirmatively.
In his initial testimony prior to that of Wilson and
Devlin, Rose acknowledged a discussion with them on
June 13 regarding the broken window but could not
recall specific remarks that he made to them on that oc-
casion. Subsequently, in his testimony following that of
Wilson and Devlin, Rose failed to specifically deny the
comments attributed to him, but testified generally that
the point he was getting across was that Respondent
could not pay the union salary rates in view of a reces-
sion going on in the industry at the time. Moreover,
Rose only generally testified that he highly doubted he
would have made the remarks attributed to him about
Armon liquidating his business before he would deal
with the Union.
Cross-examination of Wilson and Devlin was extreme-
ly limited and revealed nothing which would undermine
their testimony regarding Rose's questions and com-
ments. Accordingly, and in the absence of clear and spe-
cific denials by Rose, Wilson and Devlin are credited
over Rose. It is quite clear that Rose's questions were di-
rected specifically to the extent of the employees' knowl-
edge of the organizing union and any admitted knowl-
edge would likely reflect the employees' union support.
This is particularly true where these questions were cou-
pled with a specific and direct question directed to
Devlin regarding whether he had signed a union authori-
zation card. I find these questions, under the circum-
stances of this case and viewed in context with other al-
ARMON CO.
leged coercive remarks found hereafter, clearly tended to
coerce and restrain employees in violation of Section
8(a)(1) of the Act as alleged in the complaint.
With respect to the alleged threats to close, Respond-
ent in its brief cites NLRB v. Gissel Packing Co., 395 U.S.
575 (1969), and asserts that the communications between
Rose and the employees amounted to no more than a ex-
pression of Rose's belief that unionization might result in
the closing of Respondent due to circumstances beyond
Respondent's control and in view of Respondent's "ex-
tremely dire" financial situation at the time. In short, Re-
spondent contends that Rose's remarks "were essentially
objective opinions that Armon Company was teetering
on the brink of default, and that a union could do noth-
ing to solve that problem." I reject Respondent's conten-
tions in light of the credited testimony which does not
admit to any references by Rose to Respondent's alleged
terrible economic condition. Further, on the credited evi-
dence, it is not established, nor is it even claimed, that
Rose's remark conditioned any threatened shutdown or
closure on union violence. I conclude Rose's remarks
amounted to threats of economic reprisal in direct re-
sponse to the employees' selection of the Union. So con-
strued Rose's threats constituted unlawful threats to
close in violation of Section 8(a)(1) of the Act as alleged
in the complaint.
A separate and additional unlawful threat by Rose on
June 13 to close the facility was alleged in the complaint.
To establish this violation the General Counsel relied on
the testimony of employee Cahill. He talked to Rose
alone in working Foreman Ray Tyler's office on June
13. Rose stated that Armon was not going to put up with
a union, that he would close down before he would let a
union in. According to Cahill, Rose went on to state that
the Union had a bad reputation, that John Morris was
ruthless, that he knew of a warehouse organized by the
Union that was firebombed and the owner's home fire-
bombed, and that Armon would close down before he
would let that happen. Rose did not specifically deny in
his testimony these comments attributed to him by
Cahill. Cahill is credited. In this instance , in my view,
Rose's remarks were directly related to the eventuality
of the closure of the facility in response to union vio-
lence, not specifically in response to union organization
itself. Under these circumstances, I find and conclude
that Rose's remarks to Cahill did not constitute an un-
lawful threat to close and therefore did not constitute a
violation of Section 8(a)(1) of the Act.3
s While not specifically alleged in the complaint as a violation or
argued in the General Counsel' s brief as a violation , Cahill testified that
in the same conversation he had with Rose on June 3 related above, Rose
had stated that Armon had a money problem , that a competitor , Fidelity
Carpets, had gotten a union in and had "a lot of trouble," that Fidelity
had to sell its warehouse and rent another one because it could not afford
the old one due to the union Rose added , according to Cahill, that
Armon was going to liquidate his assets , that he would not put up with
"no union ," and that he would close down before this would happen to
him While Cahill's testimony on this point is somewhat ambiguous, the
remarks he attributed to Rose on this occasion appear to fall in line with
the contention of Respondent that Rose was simply explaining Annon's
financial situation , and pointing to Fidelity Carpets as an example of ac-
quiescence to unreasonable union wage rates which produced dire conse-
quences These remarks, I conclude , may reasonably be viewed as the ex-
pression of a reasonable belief regarding the likely economic conse-
1249
Complaint allegations regarding the independent viola-
tions of Section 8(a)(1) were not limited to Rose. Armon
was alleged in the complaint to have engaged in unlaw-
ful interrogation, threats to close, and other unlawful
conduct. Specifically, employee Fleming testified that
during the week of June 13 Armon called Fleming into
his office and asked him if he knew which way employee
Jimmy Battistini would vote. Fleming replied that he did
not know, and Armon responded that Fleming could
find out for him. Fleming agreed to do so. Fleming
thereafter approached Battistini and asked him which
way he would vote but Battistini was noncommittal.
Fleming reported back to Armon that he was not sure
which way Battistini would vote and Armon stated,
"Leave it to me." Fleming testified that a short time
after that he saw Armon come out and motion for Battis-
tini to come into his office.
Armon testified he did not recall a conversation with
Fleming at all. Asked if Fleming had reported back to
him that he could not tell how Battistini was going to
vote, Armon testified, "No, not to the best of my knowl-
edge."
Fleming was not questioned on cross-examination re-
garding his testimony concerning Armon's comments
and his testimony otherwise was not impugned by cross-
examination . Accordingly, and in view of the lack of un-
equivocal denials of the remarks attributed to him by
Fleming, Fleming is credited over Armon. Accordingly,
it is found that Armon solicited Fleming to ascertain the
union inclinations of Battistini and inform Armon This
interrogation violated Section 8(a)(1) of the Act, I con-
clude . See Sanitas Service Corp., 262 NLRB 1369 (1982).
Fleming further testified that he had another conversa-
tion with Armon regarding Battistini . The record does
not reflect the date. Armon commented that Battistini
was a good worker and Fleming agreed. Armon then re-
marked that he wished he knew which way Battistini
was going to vote and added, "I hate to lose him, I hate
to get rid of him." Armon did not testify regarding the
remarks attributed to him here by Fleming. Accordingly,
Fleming is credited. It is reasonable to conclude that
Armon's remark took place subsequent to his earlier con-
versation with Fleming about Battistini , but within the
week of June 13. This is because Fleming attributed to
Armon subsequent remarks occurring during the week of
June 13 concerning other employees' union activities in-
cluding specifically Santiago Perez whom Armon ob-
served the Union "has." It is argued by the General
Counsel that Armon's remark to Fleming about Battisttni
implicitly threatened the termination of employees be-
cause of their support of the Union. I concur. Such a
threat clearly violates Section 8(a)(1) of the Act and I so
find.
The complaint alleges that on July 11 Armon threat-
ened employees with closing of the facility because they
supported the Union. Such a threat was attributed to
Armon in the testimony of Fleming who related that on
July 11, during the course of a strike begun by the em-
quences of unionization outside Respondent 's control See Highland
House Restaurant, 271 NLRB 1419 (1984) 1 therefore find them not to be
violative
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees on July 7, Armon in a verbal exchange with the
pickets and the union organizers asked the pickets how
they would like it if he shut the doors down adding that
then there would be no checks, no unemployment (com-
pensation). Armon further added , according to Fleming,
"You'd better get your carcasses back here, or you will
be here until the snow flies ." Armon , in his testimony,
did not deny the remarks. However, other General
Counsel witnesses who testified regarding the same inci-
dent omitted any threat to close by Armon. Thus Devlin
testified that Armon told the pickets that he did not un-
derstand the whole idea of what he called their illegal
strike because there was no unemployment compensation
the guys could collect while on strike and their medical
benefits had been terminated because of the strike. At
that point, Armon added that they would be out there
until the snow flies before he settled anything. Similarly,
Cahill testified that Armon said he did not know why
they were on strike, added that it was an illegal strike,
stated that they were not going to get unemployment or
compensation; that they no longer had any medical bene-
fits; and that he could not understand why they were
striking. Armon further stated that it was a waste of time
and they were hurting themselves, and as he was return-
ing to the warehouse from the picket line he told the
pickets that he would see their carcasses rot out there
when the snow flew. Since Devlin and Cahill do not spe-
cifically corroborate Fleming concerning the alleged
threat, I am unwilling in this instance to credit Fleming's
version even in the absence of a specific denial by
Armon. Accordingly, and because nothing else contained
in the remarks of Armon to the pickets was alleged to be
unlawful, I find no violation of Section 8(a)(1) of the Act
in such remarks.
A final incident of an independent violation of Section
8(a)(1) of the Act was attributed to Armon after the em-
ployees had returned to work from the strike around
July 20. In this regard the complaint alleges that about
July 29, Armon ordered an employee to cease wearing a
union insignia at work in order to discourage employees
from supporting the Union. To support the allegation,
Wilson testified that while wearing a "Teamster 115" hat
he discussed with Armon around the last of July, a com-
plaint about not receiving some vacation pay due him. In
addition to telling Wilson to see Armon's attorney about
the vacation pay, Armon told Wilson that he did not
want Wilson wearing that hat there anymore. Wilson tes-
tified he had never had any problems or received in-
structions regarding his clothing at any previous time.
Armon did not deny the remark attributed to him by
Wilson concerning Wilson's hat and no evidence was of-
fered to establish any business necessity for precluding
Wilson 's wearing of the union hat.
It has long been held that the discouragement of wear-
ing union insignia in the absence of a valid business
reason violates Section 8(a)(1) of the Act. See Schwan 's
Sales Enterprises, 257 NLRB 1244 (1981); Dixie Machine
Rebuilders, 248 NLRB 881 (1980); Regal Tube Co., 245
NLRB 968 (1979). No valid business reason was present-
ed here. Accordingly, and even though it appears that
Wilson did not remove the hat and continued to wear it,
I conclude that Armon's direction of Wilson not to wear
the hat violated Section 8(a)(1) of the Act as alleged.
Dixie Machine Rebuilders, supra.
C. The Alleged 8(a)(3) Violations
1. William Jeffries
Jeffries was employed by Respondent as one of its
three truckdrivers in mid-March. His involvement in get-
ting the union activity begun has already been related, as
well as Respondent's knowledge of that activity as estab-
lished through the uncontradicted testimony of Fleming
that he told Rose on June 2 that it was Jeffries who was
calling around about the Union. The complaint alleges
that Respondent terminated Jeffries on June 6 because of
union activity . In support of this allegation , Jeffries testi-
fied that he was told of his discharge by working Fore-
man Tyler4 on June 6 on returning to Respondent's facil-
ity after completing his deliveries. According to Armon,
Tyler explained that he had gotten a call from Armon,
that Armon was not happy with the situation which oc-
curred on May 25, and as a result Jeffries was fired.
Tyler explained that a new driver was starting the next
day. Jeffries asked Tyler if he were being discharged for
his union activities. Tyler replied no, that he had just
heard about that that day.
The May 25 incident alluded to involved an incident
in which Jeffries' truck became mired and stuck while he
was in the process of preparing to back it into the load-
ing area of Respondent's warehouse. According to Jef-
fries, he became stuck when he found it necessary to pull
around a truck driven by Wilson which had momentarily
stopped. In pulling around Wilson, Jeffries had to leave
the paved area and his truck got stuck in the "grass." It
was thereafter necessary to use a towmotor to pull the
truck out. However, Jeffries testified that he received no
reprimand at the time. He explained to Armon why it
was necessary to go around the other truck and Armon
had simply replied, "That is bull." No damage to the
truck or any of Respondent's other property was
claimed.
According to the testimony of Foreman Tyler, an indi-
vidual named Wiles replaced Jeffries as a driver. Wiles
had been one of several applicants earlier interviewed for
a warehouse job whom Rose had called back in for an-
other interview sometime after June 2 and before Jef-
fries' discharge.
To establish the alleged violation of Section 8(a)(3) of
the Act in the discharge of Jeffries, the General Counsel
relies on Respondent 's union animus demonstrated by the
violations of Section 8(a)(1) of the Act found above, the
timing of Jeffries' discharge shortly after his involvement
in union activity became known, the innocuous nature of
Jeffries' offense for which Respondent claimed he was
discharged, the elapse of almost 2 weeks between the oc-
currence of the offense and Jeffries' discharge, and evi-
dence that Respondent had, in the past, disregarded and
failed to discipline other employees who were involved
in more reprehensible conduct in connection with their
The complaint alleges that Tyler was, at all material times , a supervi-
sor within the meaning of the Act While Respondent denied the allega-
tion in its answer , Tyler's supervisory status was stipulated at the hearing
ARMON CO.
truck driving. With regard to the latter, Rose admitted in
his testimony that Tyler, prior to being made foreman
and while driving for Respondent, had caused Respond-
ent to be fined in excess of $3000 for knowingly crossing
a limited-weight bridge in an overloaded condition.
However, Tyler was not disciplined. Moreover, when
Tyler subsequently lost his drivers' license as a result of
moving violations he was moved into the warehouse and
no disciplinary action was taken. Further, employee
Fleming testified regarding three accidents he had had
which resulted in substantial property damage to Re-
spondent 's vehicles but Fleming testified he was not dis-
ciplined or discharged for any of these incidents.
Under the teachings of the Board in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F 2d 899 (1st Cir. 1981), it
is incumbent on the General Counsel to establish a prima
facie violation of the Act by producing evidence which,
if not rebutted, would establish that Jeffries' termination
was based on his union activities rather than the incident
on May 25. I am persuaded, based on the elements enu-
merated above and relied on by the General Counsel,
that the General Counsel has established a prima facie
violation with respect to Jeffries' discharge. The burden
therefore, under Wright Line, shifts to Respondent to
rebut the General Counsel's prima facie case and demon-
strate that Jeffries would have been discharged in the ab-
sence of his union activities.
Respondent's defense is based on the testimony of
Armon and Rose. Armon testified that he made the deci-
sion to terminate Jeffries on May 25 and immediately
communicated that decision to Rose telling Rose to fire
Jeffries. He testified further that he told Rose to hire
somebody to replace Jeffries before Jeffries was fired.
Armon also claimed other reasons for discharging Jef-
fries. According to Armon, Jeffries ran his route in an
irregular manner making it necessary to double back for
deliveries. In addition he stated he was unsatisfied with
Jeffries' general performance and particularly his atti-
tude. Armon described Jeffries as somewhat belligerent
and added that he tended to be somewhat unfriendly to
his fellow workers.
Rose, in his testimony, however, attributed Jeffries'
discharge to the incident on May 25 and nothing else.
Rose 's testimony that on May 25 Armon told him to fire
Jeffries but to get a replacement first was contradicted
by Rose's affidavit given during the Board investigation
of the case and dated July 11. That statement related that
it was Rose who decided not to fire Jeffries on the spot
and that Armon did not discuss with Rose the hiring of a
replacement before firing Jeffries. Asked to explain the
inconsistency, Rose gave a rambling and equivocal re-
sponse in effect stating that he assumed that Armon
wanted him to hire a replacement first.
In addition to the shifting reasons for discharging Jef-
fries and the contradictions in Rose's testimony about
whether he was told by Armon to hire a replacement
first, Respondent's defense is also undermined by the tes-
timony of Tyler. Tyler, called by the General Counsel in
rebuttal, testified that Rose had told him that Jeffries was
trying to organize a union and that he wanted to get rid
of him before the whole thing got started. This testimo-
ny was contradicted by an affidavit of Tyler given to the
1251
Board during an investigation into the case in which he
stated that Jeffries did not meet Respondent's qualifica-
tions as a truckdriver and had a poor attitude. This con-
tradiction makes Tyler's credibility questionable. Howev-
er, I find it unnecessary to rely on Tyler's testimony in
concluding that Respondent has failed to demonstrate
that Jeffries would have been discharged without regard
to his union activity.
In reaching this conclusion, I note that as the General
Counsel argues, the May 25 incident was generally in-
nocuous resulting in no damage to any of Respondent's
property. Photographs of the area in which Jeffries
became stuck were received in evidence and revealed
that the unpaved area involved could not be classified as
either a grass area or lawn area and was not likely to
have sustained any significant damage by the truck's get-
ting stuck in it. Jeffries' offense pales also in comparison
to the costly incidents in which Tyler and Fleming were
involved without any corresponding discipline. Even the
additional grounds relied on by Armon that Jeffries was
belligerent and unfriendly to his fellow workers were not
only unsupported by employee testimony but were in
fact contradicted by Jeffries' fellow employees. In this
regard, Cahill and Devlin testified that they got along
well with Jeffries, and Jeffries testified that he got along
well with his fellow workers. Further, there is no evi-
dence that Jeffries was disciplined or ever reproached
concerning his attitude or any of the additional faults Re-
spondent now seeks to impose on him.
Finally, there is simply no reasonable explanation relat-
ed in the record for the delay between the claimed dis-
charge decision date of May 25 and the date that a re-
placement was ultimately hired. Rose admitted that the
replacement was chosen from applicants already on hand
and there is no evidence reflecting that the applicant,
Wiles, was unavailable prior to June 7. Thus, from a
timing standpoint, it is more likely that Jeffries' discharge
was a response to his union activity than to his offense of
May 25.
Considering the foregoing, the enumerated elements of
the General Counsel's prima facie case, the absence of
prior disciplinary action against Jeffries, the failure of
Respondent to inform Jeffries at the time of his discharge
of any complaints about his attitude or job performance,
and the record considered as a whole, I am persuaded
that Respondent has not shown that Jeffries would have
been discharged without regard to his union activities.
Accordingly, I conclude, as alleged, that Respondent
violated Section 8(a)(3) and (1) of the Act in discharging
Jeffries.
2. Santiago Perez
The complaint alleges that Respondent discharged its
employee Santiago Perez on June 30 because of his
union activities . Perez testified he had been employed by
the Respondent for about 20 years. He signed an authori-
zation card for the Union on June 7. It is undisputed that
his card was among those presented to Armon by Union
Representative Joseph Yeoman on June 8 when the
Union initially demanded recognition from Respondent.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perez was discharged on June 30, according to
Armon's testimony, because he was under the influence
of alcohol and alcohol was noted on his breath. Armon
conceded that he had not actually seen Perez drinking
but cans of beer had been found in Respondent's ware-
house. Armon testified that he had warned Perez four or
five times during his employment for either coming to
work with alcohol on his breath or being found to smell
of alcohol at work, the last prior warning being within 6
months of his discharge. Armon further testified that at
the time of Perez' discharge, he had confronted Perez
with the beer cans found in the warehouse. However,
Armon oddly could not recall who had found the beer
cans, and he did not identify who brought them to him.
Perez testified that he had not been drinking on the
day he was discharged, that he had not been shown any
beer cans by Armon at the time of his discharge, and
that he had never before been warned about drinking on
the job. He admitted, however, that he had, on occasion,
drunk a couple of beers at lunchtime.
The General Counsel relied on the testimony of Flem-
ing to connect Perez' union inclinations with his dis-
charge. Thus Fleming testified that on June 13, Armon
told him that he thought the Union "had" Perez. At a
time when Perez was out, Armon called Fleming to his
office and asked him if he knew where Perez kept his
"stash." Armon asked Fleming to get some of the emp-
ties. Fleming went back into the warehouse, found some
empty cans, although not necessarily Perez', and took
the cans back to Armon. Fleming said he had found the
cans in an out-of-the-way place where they could have
been left over from a Christmas party.
On the other hand, Fleming conceded that he had
been aware that Perez had been drinking on the job at
least two times before. The first time was 3 to 4 years
earlier when Rose asked Fleming if Perez had been
drinking. Fleming told Rose that he had. To his knowl-
edge, Perez was not warned about the matter. The next
occasion of Perez' drinking occurred a couple of months
before the union campaign, according to Fleming. At
that time, both Tyler and Rose asked Fleming if Perez
had been drinking again and Fleming said that he had.
However, again , to his knowledge, Perez was not disci-
plined or warned.
The General Counsel further relied on the testimony
of Tyler to establish the connection between Perez'
union activity and his discharge. Tyler testified that
Armon told him prior to Perez' discharge that he could
not understand why Perez would sign a union card after
working 20 years for him and added he was going to let
him go. Tyler further testified that he had worked with
Perez on the day Perez was fired, that he did not smell
alcohol on Perez' breath that day, and that Perez did not
appear drunk. He related that so far as he knew Perez
was not drinking. Tyler further testified that to his
knowledge Perez had not been warned for drinking by
Armon.
Tyler's testimony, with respect to Perez, was not con-
tradicted by his prehearing affidavit given the Board in-
asmuch as he did not refer to Perez' discharge in the affi-
davit. Such testimony merely substantiates the prima
facie case I find the General Counsel established with re-
spect to the unlawfulness of Perez' discharge. The
weight of the evidence here is clearly against the testi-
mony of Armon. While Tyler's credibility might general-
ly be subject to doubt because of the contradiction be-
tween his testimony and his affidavit in other respects,
the most damning portion of his testimony with respect
to Perez stands unrebutted by Armon. Moreover, Tyler's
testimony that Armon said he was going to get rid of
Perez finds corroboration to some extent in the testimo-
ny of Fleming which was also uncontradicted by Armon
to the effect that Armon directed him to get something
from Perez' "stash" suggesting that Armon was attempt-
ing to find a basis for discharging Perez. In addition,
there was no corroboration whatsoever to be found in
the record to establish that Perez was drinking on the
day of his discharge. Armon's testimony on that point
stands as completely conclusionary and unsupported by
any testimony of details regarding Perez' behavior on the
day of his discharge or how Armon came to discover
Perez' alleged drinking. Under these circumstances, in-
cluding Armon's hostility to the Union and his willing-
ness to discharge employees for union activity as seen in
the case of Jeffries, supra, the clear preponderance of
evidence militates against crediting Armon regarding the
basis for Perez' discharge. Accordingly, the testimony of
Tyler, Fleming , and Perez is credited where it contra-
dicts Armon and based on such credited testimony, I
conclude that Respondent has failed to rebut the General
Counsel's prima facie case that Perez was discharged be-
cause of his union inclinations in violation of Section
8(a)(3) and (1) of the Act.
3. The alleged discrimination against Michael
Devlin and Al Wilson
The complaint alleges that Respondent on June 6 and
15 changed the working conditions for its employee Mi-
chael Devlin by reducing his hours of work. By amend-
ment at the hearing , the General Counsel added an addi-
tional allegation that driver Al Wilson had similarly had
his hours reduced on June 10
Devlin testified that on June 13 having completed his
deliveries early he returned to Respondent's facility
around 3 p.m. When he arrived, he was told by Tyler
that he should leave the building, that there was no
work. Devlin inquired as to whether he should refuel his
truck or perform maintenance work which, according to
Devlin, was the normal procedure on early returns to
Respondent's facility Tyler replied that he could do that
the next day adding that he had been told to send all the
drivers home if they got back early. Accordingly, Devlin
left the premises without completing his workday.
Wilson's testimony was that on June 10 he also re-
turned to Respondent's facility prior to the completion of
his 8-hour shift and was told by Tyler that he had to
leave the premises, that that was the new rule, that driv-
ers were to be sent home when they returned. Wilson re-
lated that he went to Rose and asked whether he was
still going to be able to get in 40 hours a week Rose's
response , according to Wilson, was to shrug his shoul-
ders and say that there was nothing to do. Further ac-
cording to Wilson, it had been the previous practice for
ARMON CO.
drivers to use the time between early returns and the
completion of their shift to fuel or oil their trucks.
There was no evidence presented to establish that
Devlin or Wilson had ever suffered a reduction in hours
before. On the other hand, both Devlin and Wilson testi-
fied with corroboration from Jeffries regarding a meeting
with Armon, the drivers, Tyler, and Rose around Easter
in which a change was announced with respect to the
starting time for the drivers. A question was raised
whether the drivers would get their regular 40 hours per
week. Armon assured them that they would except that
when Jeffries brought up the fact that he had been laid
off a day shortly after Easter, Armon pointed out that
Jeffries had the lowest seniority among the drivers and
that this would happen occasionally.
The testimony of Devlin, Wilson, and Jeffries in the
foregoing respects was not contradicted by any of Re-
spondent's witnesses and their testimony on these points
was not seriously attacked during cross-examination. Ac-
cordingly, their testimony is credited.
The complaint further alleges that Respondent on June
23, 24, and 30 and July 1 and 5 discriminatorily laid off
Devlin and, on August 1, discriminatorily imposed more
onerous working conditions on Wilson.
In connection with these allegations , Devlin testified
that when he returned to the facility on June 15 he was
told by Rose that there was not going to be any work
the following Thursday5 and for Devlin to call in on
Thursday to see if there would be work for Friday.
When Devlin did call in, he was told there was no work
for Friday He testified he also did not work June 30 or
Friday, July 1, and was simply on call for those days.
With respect to the allegation of Respondent's imposi-
tion of more onerous working conditions on Wilson,
Wilson testified that on the Monday following the
Friday in late July when Armon told him not to wear
the Teamsters hat, he went into work again wearing the
hat Armon told him that he was not going to send
Wilson out for driving. Armon then gave Wilson a
sickle, took him to the side of the building where weeds
were growing 5-feet high, and instructed him to cut
them down. Wilson started to perform the assignment
but Armon insisted that he wanted them cut shorter.
Whereupon, according to Wilson, he gave the sickle
back to Armon and told him to get one of his "ass kiss-
ers" to do the job. The record does not reflect whether
Wilson continued in the job or whether he worked any
further that day. Wilson testified he never before had
been instructed to cut weeds and related that normally
Respondent has an outside landscaper that comes in and
trims the bushes and mows the lawn The next day, ac-
cording to Wilson, he called in sick. But the day follow-
ing that he reported to work wearing his union hat again
and was assigned by Rose to sweep the dock out putting
whatever trash he picked up into a 55-gallon drum.
5 The following Thursday according to the calendar would be June 16
However, the General Counsel argues in her brief, consistent with the
dates alleged in the complaint that Devlin was referring to June 23 1
accept this date inasmuch as Armon in his testimony did not deny that
Devlin was laid off on the dates alleged in the complaint , although pre-
sumably company records were available to him which would more ac-
curately reflect the dates if they were considered to be in error
1253
Wilson, Respondent's senior driver, testified that he had
never previously been instructed to clean the dock area.
Further, he related that Respondent employed a full-time
janitor who swept up both inside and outside the build-
ing. Wilson's testimony in the foregoing respects was not
contradicted by Respondent and is credited.
The General Counsel contends that the evidence relat-
ed above regarding Devlin and Wilson establishes a
prima facie case of 8(a)(3) and (1) violations. More spe-
cifically, the General Counsel points to Respondent's
union animus already set forth, Respondent's knowledge
of Devlin's and Wilson's union support as revealed to
Respondent through the Union's submission of their
union cards to Armon on June 8, the timing of the begin-
ning of the reduction in hours and layoffs following the
beginning of the union activity, and the absence of any
precedent for such layoffs and reduction in hours as all
establishing the prima facie case. In connection with the
assignment of more onerous working conditions to
Wilson, the prima facie case is said to be made out by
the absence of any precedent for assigning drivers gener-
ally, and Wilson particularly as the most senior driver, to
such onerous tasks and the timing of such imposition of
such tasks almost immediately after he was told to
remove his Teamsters hat. I concur in the General Coun-
sel's position that a prima facie violation was established
with respect to Respondent's actions toward Devlin and
Wilson as contended.
Respondent offered no testimony or evidence with re-
spect to the assignment of Wilson to the more onerous
tasks. And it appears to base its entire defense to the al-
leged hours reductions and layoffs involving Devlin and
Wilson on economic concerns. Thus, Armon testified
that in 1980, 1981, and 1982 the Company had operated
with increasing substantial losses. As a result in January
1983 a determination was made to eliminate the carpet-
ing division of its wholesale carpeting distribution oper-
ation by the end of 1983. However, there was no testi-
mony by Armon that that decision had any immediate
effect on its trucking and delivery operations. Neverthe-
less, Armon admittedly utilized common carriers rather
than Respondent's own trucks on the dates when Devlin
was laid off.
Armon asserted that the use of common carriers was
cheaper than the use of Respondent's own trucks.
Pressed for a comparison of costs, Armon claimed that
he just knew, based on his acquaintance with his day-to-
day operations that common carriers were cheaper. No
substantiating figures were presented by Armon herein,
and he admitted that no cost analysis was done by him.
On the other hand, Armon admitted that common carri-
ers generally cost Respondent between $10 and $25 per
delivery stop with 12 to 13 stops being the average per
day. An example of common carrier charge figures re-
ceived in evidence reflects no charge, however, of less
than $13 per stop. Further record evidence reflects that
Respondent's labor costs for making 12 or 13 stops utiliz-
ing its own trucks would be about $73. Armon estimated
fuel costs for a run having 12 to 13 stops around $50.
Simple arithmetic reveals that labor costs and operating
costs for Respondent's deliveries with its own vehicles
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(not including maintenance costs, capital outlay, and in-
surance costs about which the record shows nothing)
would clearly be substantially cheaper than using
common carriers. And since Respondent maintained its
own trucks, leased and otherwise, during June when it
was using common carriers to the admitted detriment of
Devlin and Wilson, it accomplished little if any savings
on maintenance costs, depreciation, and insurance. If use
of common carriers was indeed cheaper, it is difficult to
understand why Respondent did not dispose of its own
trucks immediately.
Respondent's claims regarding the economic basis for
its use of common carriers in June is further undermined
by the fact that even with its claimed economic difficul-
ties recognized in early 1983, it retained its trucking op-
eration during the early months when work for that op-
eration was at its slowest. Respondent, based on the testi-
mony of employee Cahill, undisputed in this regard, had
always resorted to use of common carriers to some
extent but on such occasions it appears that that usage
was as a supplement to its own delivery operations, not a
substitute . Thus, having been acquainted with the use of
common carriers and their costs and knowing of its
claimed economic plight, it is extremely peculiar that Re-
spondent would not have substituted common carriers
for its own operation in the slow months in the early
part of the year.
Respondent argues in its brief that its action in using
common carriers after June 16 was a step toward total
liquidation and did not constitute discriminatory subcon-
tracting. It further argues that even if the common carri-
ers were more costly in the short run, they were neces-
sary in order to begin total liquidation of Respondent.
The first argument is simply not supported by the record
for Armon made no claim that in his June 16 meeting
with the accountant a decision was made to totally liqui-
date the business. Moreover, Devlin was already experi-
encing a reduction in his hours prior to any June 16
meeting between Armon and his accountant. The second
argument of Respondent makes no sense on the basis of
this record, for there is no showing of any benefit to be
derived from higher delivery costs even as a step toward
total liquidation. On the contrary, that such higher deliv-
ery costs were not in fact necessary as a step toward liq-
uidation is demonstrated by Respondent 's willingness to
fully resume its trucking operation after the July strike of
its employees. Finally, Armon's testimony suggesting
that the June resort to common carriers was an experi-
ment is also totally inconsistent with any claim that it
was a necessary and specific step in the liquidation proc-
ess. Since Respondent had used common carriers before
it would necessarily have been familiar with their costs
so that a need to experiment would appear completely
unnecessary.
Respondent's claimed basis for the resort to the
common carriers is also rendered suspicious by Respond-
ent's failure to advise affected employees that the deliv-
ery work was being performed by common carriers, ex-
perimentally or otherwise. Instead , Devlin was told only
that he was laid off for lack of work.
Lastly, the discriminatory basis for the use of common
carriers is suggested by the hiring of Wiles as a replace-
ment for Jeffries just 10 days prior to the decision to
resort to common carriers. The implication is that such
hiring belies any contemplation of an economic problem
in Respondent's trucking operation, particularly in light
of the claim that Jeffries had to be replaced before he
could be fired for an event occurring more than 10 days
earlier. Moreover, as argued by the General Counsel,
even assuming that Respondent could not have foreseen
its decision 10 days later to use common carriers, its re-
tention of new employee Wiles while laying off or re-
ducing the hours of Devlin and Wilson, more senior
drivers identified by Respondent as union card signers,
despite Respondent's undisputed past practice of general-
ly assigning drivers by seniority clearly points to Re-
spondent's discriminatory motive.
Considering all the foregoing, I conclude that Re-
spondent has not rebutted the General Counsel's prima
facie case regarding the hour reductions of Devlin and
Wilson and the layoff of Devlin. Further, because the as-
signment of Wilson to the weed cutting task and the
sweeping constituted, on their face, assignments to more
onerous tasks which were not only outside Wilson's
normal duties but also normally performed by others,
and because Respondent failed to explain or justify such
assignments, I conclude Respondent has not rebutted the
General Counsel's prima facie case that such assignments
were discriminatorily motivated and responsive to Wil-
son's union activities. Accordingly, I conclude that Re-
spondent's actions with respect to Devlin and Wilson
violated Section 8(a)(3) and (1) of the Act as alleged.
4. The alleged refusal to bargain in violation of
Section 8(a)(5) of the Act
The complaint alleges, the answer admits, and I find
that the appropriate bargaining unit of Respondent's em-
ployees is composed of:
All warehousemen and drivers employed at the
Bensalem facility, excluding all other employees in-
cluding sales persons, office clericals, guards and su-
pervisors as defined in the Act.
The record indicates that as of June 8 there were eight
employees in the bargaining unit. Five of these employ-
ees, Wilson, Devlin, Cahill, Battistini, and Perez, had all
signed single -purpose union authorization cards designat-
ing the Union as their "chosen representative in all mat-
ters pertaining to wages, hours, and working conditions."
There was no testimony offered regarding improper so-
licitation of the cards which would adversely affect their
validity in establishing the Union's majority status. Fur-
ther, there was no serious question raised as to the au-
thenticity of any of the cards which were received in
evidence. I therefore find that such cards are valid desig-
nations of the Union which may be considered in deter-
mining the Union's status as representative of a majority
of the unit employees. Jeffries had also signed a union
authorization card on June 6. Since I have found that he
was discriminatonly discharged, he must also be consid-
ered in the unit. Thus, when Union Representative
Joseph Yeoman met with Armon on June 8 and demand-
ed recognition of the Union, he had authorization cards
ARMON CO.
from six out of eight unit employees , e a clear majority. It
is undisputed that Respondent declined to recognize the
Union.'
In view of Respondent 's refusal to recognize the
Union, the Union filed a petition, Case 4-RC-15368,
with the Board on June 10. An agreement on an election
was reached on June 27 and an election was scheduled
for August 3. The election, however, was subsequently
blocked by the filing of the 8(a)(5) charge herein in Case
4-CA-13845 on July 14. Although the record does not
show the present status of the petition, under normal
Board procedure the petition would have been dismissed
on issuance of the complaint herein containing the un-
lawful refusal-to -bargain allegation.
The General Counsel contends that a bargaining order
should issue in this case under the teachings of NLRB v.
Gissel Packing Co., 395 U.S. 575, 614 (1969), because Re-
spondent's unfair labor practices have a "tendency to un-
dermine [the Union's] majority strength and impede the
election processes ." In making this argument the General
Counsel pointed to the unlawful discharges of Jeffries
and Perez and the discrimination against Devlin and
Wilson occurring in a very small unit of employees. The
discharges are argued to be the most flagrant means by
which an employer could hope to dissuade employees
from selecting the union "because no event can have
.more crippling consequences to the exercise of Section 7
rights than the loss of work." Mid-East Consolidation
Warehouse, 247 NLRB 552, 560 (1980). Further, the
General Counsel argues that Respondent's threats to
close the facility because of the union activity is a type
of threat which has long been held to be one of the most
serious threats an employer could make and necessarily
had a substantial impact on employee free choice. See
Air Products & Chemicals, 263 NLRB 341 (1982), enfd.
717 F.2d 141 (4th Cir. 1983). The General Counsel fur-
ther asserted in bnef that Respondent 's union animus and
its` willingness to repeat its unfair labor practices was
demonstrated by the treatment after the strike was set-
tled when it imposed more onerous working conditions
on Wilson simply because he wore a union hat. In view
of this and Respondent's extensive unfair labor practices,
it is claimed that a free and fair election is impossible and
that only a bargaining order could remedy Respondent's
unfair labor practices. Further, the General Counsel as-
serted that even if Respondent terminates its business
before such bargaining order issues as Respondent at the
hearing and in its brief stated it intended, a bargaining
" This excludes Wiles, Jeffries' replacement, and includes Jeffries Even
if it is subsequently found that Wiles is properly included and Jeffries ex-
cluded , the Union would still have a majority of five out of eight em-
ployees on June 8
r At the hearing herein the General Counsel argued that since Armon
accepted the union cards proffered to him and examined them , his subse-
quent refusal to recognize and bargain with the Union in itself violated
Sec 8(a)(5) of the Act The General Counsel abandoned that argument in
her bnef apparently on the basis that notwithstanding Armon's examina-
tion of the cards, he never agreed to recognition on the basis of the
cards In any event , I need not address this argument since the General
Counsel no longer pursues it
1255
order is nevertheless called for in the event Respondent
resumes its business.8
Respondent initially argued that it had not engaged in
any unlawful acts, that reasons for all of its actions were
nondiscriminatory, and that there is, therefore, no reason
for a bargaining order remedy. Respondent further
argues that even assuming that it engaged in the miscon-
duct alleged, there is no evidence that the employees felt
coerced by any of Respondent's actions to the extent
that a fair election could not be held. To support that ar-
gument, Respondent pointed out that Fleming who had
not signed a union authorization card previously did so
on July 7 after most of Respondent's alleged unfair labor
practices. The further absence of coercion, according to
Respondent, was demonstrated by the fact that the unit
employees struck on July 7. Citing NLRB v. Pace Olds-
mobile, 681 F.2d 99 (2d. Cir. 1982), Respondent contend-
ed that the strike which was more likely to have adverse
consequences for the employees than a secret-ballot vote
provided reason to question whether a fair election was
"improbable if not impossible."
Respondent also claimed in its brief that during the
process of liquidation of Respondent's facility which was
initiated sometime prior to the hearing although it met
with the Union a number of times, the Union never re-
quested bargaining with Respondent over the effects on
employees of the closing or liquidation. Thus, Respond-
ent argues that the Union waived any right it may have
had to bargain over the effects of the closing and, infer-
entially, a retroactive bargaining order could not be justi-
fied.
There can be no doubt that the unfair labor practices
of Respondent found above fall well within the second
category of cases outlined in Gissel, supra, i.e., cases
where the unfair labor practices are less pervasive than
those outlined in the first Gissel category but still so seri-
ous or egregious that the possibility of erasing the effects
of such practices by the use of traditional remedies is so
slight as to render uncertain the possibility of a fair elec-
tion and making reliance on union authorization cards a
more reliable basis for determining union majority status.
A bargaining order, I conclude, is warranted here. In
reaching this conclusion, I note the serious nature of the
threats involved herein some of which emanated from
the top official of Respondent, Armon. The threats and
the interrogation extended to at least half of the unit em-
ployees. And since the unit consisted of only eight em-
ployees, it is most probable that word of the threats was
quickly disseminated among all unit employees. Discrimi-
natory conduct was directed at half of the unit employ-
ees. The discharge of union adherents by an employer in
a representation campaign in itself "strongly supports the
imposition of a bargaining order." Air Products & Chemi-
cals, supra at 341.
It is, of course, true that subsequent to most of Re-
spondent's unfair labor practices, the employees engaged
in a strike from July 7 to 20. A strike in similar circum-
stances was considered by the United States Court of
8 In an all party telephonic conference call arranged by me on Septem-
ber 28, 1984, Respondent 's counsel stated that Respondent had in fact ter-
minated its business
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appeals for the Second Circuit in Pace Oldsmobile,
supra , sufficient when coupled with certain other facts to
warrant remand of the case to the Board for reconsider-
ation of the bargaining order issued by the Board at 256
NLRB 1001 (1981).9 It is further true that one additional
employee signed a union authorization card after most of
the unfair labor practices occurred. These factors ordi-
narily might tend to suggest that Respondent 's violations
of the Act had a solidifying effect rather than a coercive
one and that the solidified resolve of the employees
might be expected to preclude any vestige of coercion
from accompanying employees into an election booth.
However, under the peculiar circumstances of this case
where Respondent contends that it is going out of busi-
ness and an election may never be held and because Re-
spondent still engaged in some unfair labor practices in-
volving Wilson following the strike , a bargaining order
remedy appears to be particularly appropriate. Under
such circumstances, it cannot be said that traditional
remedies will erase Respondent 's unfair labor practices
and ensure a fair election making such election a better
expression of employee sentiment than authorization
cards. As the Board said in Brenal Electric, 271 NLRB
1557, 1558 (1984), in entering a Gissel-type bargaining
order in a case involving similar circumstances, "To hold
otherwise in this case would allow Respondent to benefit
from its unlawful conduct." Moreover, a bargaining
order applied retroactively, consistent with the Board's
policy as set forth in Trading Port, 219 NLRB 298 (1975),
to the date of July 8, 1983, the date of the Union's re-
quest for bargaining after it attained majority status and
following Respondent's embarkation on its unfair labor
practice campaign, is the only way in which Respond-
ent's unfair labor practices may be effectively remedied
and the rights of employees ensured.
I concur in the General Counsel's argument that a bar-
gaining order is appropriate even if Respondent in fact
terminated its business subsequent to the hearing herein.
There is no evidence in this record to establish Respond-
ent's inability to reopen its business at some future time.
Further, the record contains no assurances on the part of
Respondent that if it closed, it would make no future
effort to resume. As indicated, a Board order is even
more appropriate in the circumstances of this case be-
cause in the event of termination of the business, employ-
ee-union sentiments may never be ascertained by an elec-
tion and they otherwise will have lost valuable represen-
tation rights they sought through execution of the union
authorization cards when such representation rights
would have been most beneficial to them during the crit-
ical time of Respondent 's business shutdown . It is pre-
cisely for this reason that the Board in Trading Port,
supra, adopted the policy of making bargaining orders in
Gissel-type cases retroactive to an employer's embarka-
tion on an unlawful course of conduct after the union
obtains its majority status through union authorization
9 On reconsideration at 265 NLRB 1527 (1982), the Board adhered to
its earlier bargaining order finding, with respect to the strike , that em-
ployer unfair labor practices subsequent to the strike had the effect of
making employees less willing to risk retaliation for future union activi-
ties The court subsequently denied enforcement of the bargaining order
739 F 2d 108 (2d Cir 1984)
cards. See also Donelson Packing Co., 220 NLRB 1043
(1975), enfd. 569 F.2d 430 (6th Cir. 1978), and Independ-
ent Sprinkler Co., 220 NLRB 941 (1975), enfd 95 LRRM
2064 (5th Cir. 1977).
I reject the argument of Respondent that it cannot be
required to bargain on the effects of any shutdown or
termination of Respondent's operation on its employees
because the Union did not request bargaining on that
subject even though Respondent apparently had some
dealings and discussions with the Union both during the
strike in July and subsequently. This rejection is based on
the absence in this record of any evidence that Respond-
ent at any time extended full recognition to the Union or
negotiated with the Union as collective-bargaining repre-
sentative of Respondent's employees. Respondent makes
no such claim . In the absence of full recognition, any in-
dependent request by the Union to bargain with Re-
spondent over the effects on employees of any business
shutdown or termination by Respondent would have
been obviously futile.
Considering all the foregoing, including the flagrant,
pervasive, and egregious nature of Respondent's unfair
labor practices involving unlawful discharges and threats
to close which were directed in one form or another to
more than half of the eight unit employees, the personal
involvement in such practices by Respondent's principal
officer, and Respondent's intention expressed at the hear-
ing to close its business so that an election might never
be held, I conclude that the possibility of erasing the
effect of Respondent's unfair labor practices and ensuring
a fair election by traditional remedies is slight. Accord-
ingly, I conclude that employee sentiment expressed
through authorization cards would be better protected
by a bargaining order in this case. I, therefore, find Re-
spondent's refusal to recognize and bargain with the
Union constituted a violation of Section 8(a)(5) and (1)
of the Act as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer 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 employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All warehousemen and drivers employed at the
Bensalem , facility, excluding all other employees in-
cluding sales persons , office clericals, guards and su-
pervisors as defined in the Act.
4. Commencing about June 6 and 7, 1983, and continu-
ing thereafter, the Union was designated by a majority of
Respondent's employees in the bargaining unit described
above as the exclusive collective-bargaining representa-
tive.
5. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by in-
terrogating its employees concerning their union activi-
ties and inclinations and the union activities and inclina-
tions of other employees, threatening to close its facility
ARMON CO. 1257
in the event of the employees' selection of the Union to
represent them, threatening employees with discharge for
union activity, and discouraging employees from wearing
union insignia at its facility
6. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act
by discharging its employee William Jeffries on June 6,
1983, by discharging its employee Santiago Perez on
June 30, 1983, by reducing the hours of work of its em-
ployees Michael Devlin and Al Wilson, by laying off its
employee Michael Devlin on June 23, 24, and 30 and
July 1 and 5, 1983, and by imposing more onerous work-
ing conditions on its employee Al Wilson about August
2, 1983.
7. By refusing to recognize and bargain with the
Union as the exclusive bargaining representative of its
employees in the appropriate unit set out above on and
after June 8, 1983, while engaging in serious and egre-
gious unfair labor practices as set out above, Respondent
has engaged in, and is engaging in, unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) of the Act.
8. The unfair labor practices set forth above in para-
graphs 5, 6, and 7, above, affect commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Since I have found that Respondent has engaged in
substantial unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act, I shall recommend to
the Board that Respondent be ordered to cease and
desist from engaging in those unfair labor practices and
to post an appropriate notice to employees to the effect
it will not engage in such practices.'0
Having found that Respondent discriminatorily dis-
charged its employees William Jeffries and Santiago
Perez and discriminatorily reduced the hours of work of
Michael Devlin and A] Wilson and discriminatorily laid
off its employee Michael Devlin on various dates in June
and July 1983, it will be recommended that Respondent
make them whole for any loss of earnings or benefits
they may have suffered by reason of the discrimination
against them, with interest. i i Backpay is to be computed
in accordance with the formula provided in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest computed
in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977).12 Moreover, consistent with the
10 If on compliance processing of this recommended Order it is deter-
mined that Respondent has in fact terminated its business , then this Order
shall be construed as requiring Respondent to mail copies of the recom-
mended notices to each employee
11 Reinstatement of Jeffries and Perez is not recommended herein inas-
much as the record reflects that they were reinstated at the conclusion of
the strike in July and no contention was made by the General Counsel
that the reinstatement was in any way insufficient It also appears to be
undisputed on the record that Jeffries and Perez received backpay on re-
instatement although the record does not reflect the amounts involved
Therefore, the Order provided herein shall be construed to require Re-
spondent to pay backpay to Jeffries and Perez only to the extent it has
not already done so
12 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962)
Board's decision in Sterling Sugars, 261 NLRB 472
(1982), I shall recommend that Respondent be required
to remove from its records any references to the unlaw-
ful discharges of Jeffries and Perez and to provide writ-
ten notice of such action to them and inform them that
Respondent's unlawful conduct will not be used as a
basis for further disciplinary action against them.
I have previously found that Respondent violated Sec-
tion 8(a)(5) of the Act and that a bargaining order is ap-
propriate in the circumstances of this case. Consistent
with the Board's policy set forth in Trading Port, supra,
and applied in Donelson Packing Co, supra, and Inde-
pendent Sprinkler Co., supra, I shall recommend that the
bargaining order shall be made effective from June 8,
1983, the date of the Union's request for recognition and
bargaining after Respondent had commenced its unfair
labor practices and after the Union had obtained its ma-
jority status on June 7. The unfair labor practices of Re-
spondent occurring prior to June 8 are otherwise ade-
quately remedied by this order.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed"
ORDER
The Respondent, Armon Company, Bensalem, Penn-
sylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their own and
other employees' activities and inclinations on behalf of
Teamsters Local Union No. 115, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America or any other labor organization.
(b) Threatening its employees that it would close its
facility if the employees selected the Union to represent
them.
(c) Threatening its employees that it would discharge
them because of their activities on behalf of the Union.
(d) Discouraging employees from wearing union insig-
nia at its facility.
(e) Discharging, laying off, or reducing the hours of
work of its employees because of their activities on
behalf of the Union.
(f) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole William Jeffries, Santiago Perez, Mi-
chael Devlin, and Al Wilson for any loss of earnings
they may have suffered as a result of the discrimination
practiced against them in the manner set forth in the
remedy section of the decision.
(b) Remove from the records of William Jeffries and
Santiago Perez any reference to their discharges and
notify them in writing that this has been done and that
13 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the evidence of their unlawful discharges will not be
used as a basis for any future disciplinary action against
them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Recognize and, on request, bargain collectively
with Teamsters Union No. 115, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America as the exclusive collective- bargaining
representative of the employees of Respondent in the ap-
propriate bargaining unit described below:
All warehousemen and drivers employed at the
Bensalem facility, excluding all other employees in-
cluding sales persons, office clericals, guards and su-
pervisors as defined in the Act.
(e) Post at its Bensalem , Pennsylvania facility copies of
the attached notice marked "Appendix." 14 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."