Dairyland USA Corporation

National Labor Relations Board - Board Decisions

May 31, 2006

347 N.L.R.B. 310 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 30
310
Dairyland USA Corporation and Local 348-S, United
Food and Commercial Workers1 and Miguel Pi-
erre
Dairyland USA Corporation and Local 348-S, United
Food and Commercial Workers and William
Urizar. Cases 2–CA–35632, 2–CB–19388, 2–CA–
35633, and 2–CB–19389
MAY 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On July 19, 2005, Administrative Law Judge D. Barry
Morris issued the attached decision. The Respondents
and the General Counsel each filed exceptions and sup-
porting briefs, answering briefs, and reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge's rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.
We adopt the judge’s findings that Respondent Dairy-
land USA Corporation (Dairyland) violated Section
8(a)(1) of the Act by interrogating employees about their
activities on behalf of Teamsters Local 202, engaging in
surveillance of those activities, and threatening them
with loss of work if the Teamsters came into Dairyland’s
facility. We also adopt the judge’s findings that Dairy-
land violated Section 8(a)(1) by promising increased
medical benefits to employees if they supported the Re-
spondent Local 348-S, United Food and Commercial
Workers (the Union), threatened an employee with dis-
charge if he did not sign a Union card, and created the
impression of surveillance of their protected activities.
We also agree with the judge that Dairyland violated
Section 8(a)(2) of the Act by directing employees to sign
the Union’s authorization cards.
The judge also found, however, that Dairyland did not
violate Section 8(a)(2) by recognizing the Union as the
employees’ collective-bargaining representative at a time
when the Union did not have the support of an uncoerced

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO effective July 29, 2005.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
majority of employees. The General Counsel excepts to
this finding and to the judge’s failure to find that the sub-
sequent collective-bargaining agreement between the
Respondents also violated the Act.3 As explained below,
we find that Dairyland and the Union violated the Act as
alleged in this regard, and we reverse the judge accord-
ingly.4
I. BACKGROUND
Dairyland is a wholesale food distributor in the greater
New York metropolitan area. Dairyland employs ap-
proximately 150 employees as warehousemen and driv-
ers at its facility in the Bronx and at a small facility in
Columbia, Maryland.5 In addition to these facilities,
Dairyland also uses a parking lot a few blocks away from
the Bronx facility for its delivery trucks.
On January 23, 2003,6 the Union and Dairyland signed
a neutrality agreement. The terms of that agreement al-
lowed the Union to come to the Bronx facility to meet
with Dairyland’s employees. On January 27, representa-
tives of the Union went to Dairyland’s Bronx facility and
were provided space in the Dispatch Office to meet the
employees and solicit authorization cards. On that day,
Warehouse Supervisor Kevin Kelly told 18 warehouse
employees that they “ha[d] to go” to the dispatch office
to meet with the Union “to sign” a card. Operations
Manager Mineo Maldonado was present when ware-
house employee Bobby Richardson was signing a card,
and at various times Maldonado went “in and out” of the
card-signing meetings. Maldonado also threatened de-
livery driver Santana7 by saying to him, “[I]f you don’t
sign the card, you won’t be working here.”8 Maldonado

3 The General Counsel alleges that Dairyland’s grant of recognition
violated Sec. 8(a)(2); that the Union’s acceptance of recognition vio-
lated Sec. 8(b)(1)(A); that Dairyland, by entering into, maintaining, and
enforcing a collective-bargaining agreement containing a union-
security clause when the Union did not represent an uncoerced majority
of employees, violated Sec. 8(a)(3); and that the Union’s entering into,
maintaining, and enforcing such agreement violated Sec. 8(b)(2).
4 Dairyland argues that the General Counsel’s exceptions should be
denied because they lack sufficient specificity under Sec. 102.46(b)(1)
of the Board’s Rules. Contrary to Dairyland’s contention, we find that
the General Counsel’s exceptions substantially comport with the re-
quirements of Sec. 102.46(b)(1), and accordingly are accepted.
We find it unnecessary to pass on the General Counsel’s exceptions
to the judge’s failure to find that Dairyland created the impression of
surveillance in January 2003; by Supervisor Maldonado, threatened
employees with discharge in May 2003; engaged in surveillance of
employees’ union activities in June 2003; and interrogated employees
concerning their protected activity. Any violations found in this regard
would be cumulative of other violations found and accordingly would
not affect the remedy.
5 Approximately eight employees work at the facility in Maryland.
6 All dates are in 2003, unless otherwise stated.
7 Santana’s first name is not in the record.
8 We find no merit to the Union’s argument that statements made on
January 27 by Kelly and Maldonado consisted of lawful opinions.
DAIRYLAND USA CORP. 311
also told delivery driver Miguel Pierre that the Union
was “there for us” and would “supply medical benefits.”
On January 31, pursuant to the neutrality agreement,
an arbitrator conducted a card check. The arbitrator
found that the Union had received 111 signed authoriza-
tion cards out of a proposed unit of 150, and he certified
the Union as the collective-bargaining representative of
the unit employees. The following day, February 1, the
Union and Dairyland signed a collective-bargaining
agreement, in which Dairyland recognized the Union.
The agreement contains a union security clause and a
check-off clause. Since February 1, Dairyland has de-
ducted $25 from each employee paycheck for union
dues.
In May, after the foregoing events, employee Efrain
Rodriguez raised a complaint about timecards in a union
meeting. Several days later, Supervisor Kevin Kelly told
Rodriguez that “he’s hearing things about me that he’s
not liking and that I should put a stop to it.”9 Thereafter,
in June, several employees met at a parking lot used by
Dairyland a few blocks away from the facility to discuss
representation by Teamsters, Local 202. Two days later,
John Pappas, vice-president of Dairyland, called em-
ployee William Urizar into his office. At that meeting,
Pappas stated to Urizar, “Willie, what were you doing in
that meeting. . . . We know you were there,” and “if
those Teamsters come into the company, we’re going to
cut 30 routes.”10
With this background, we turn to the allegation that
Dairyland unlawfully recognized the Union.
II. UNLAWFUL RECOGNITION ALLEGATION
A. Judge’s Analysis
The judge found that Dairyland did not violate Section
8(a)(2) of the Act by recognizing the Union at a time
when the Union did not represent an uncoerced majority
of employees. In doing so, the judge applied a purely
mathematical analysis. He counted the 18 warehouse
employees who were told to meet with the Union to sign

Kelly did not express an opinion but rather directed employees to meet
with the Union in order to sign a card. Further, Maldonado did not
express his opinion to Santana but rather told Santana he “would not”
have a job if he did not sign a card. See Fountainview Care Center,
317 NLRB 1286, 1290 (1995), enfd. mem. 88 F.3d 1278 (D.C. Cir.
1996) (finding unlawful employer’s directive to sign authorization card
in order to receive employment).
9 In adopting the judge’s finding that Kelly created the impression of
surveillance when he told Rodriguez that “he’s hearing things about me
that he’s not liking,” we note that Dairyland excepted to the judge’s
decision to credit Rodriguez’ testimony that Kelly so stated, not to the
judge’s legal determination that Kelly’s statement created an impres-
sion of surveillance.
10 We adopt the judge’s findings that these acts in May and June vio-
lated Sec. 8(a)(1) of the Act, for the reasons stated in the judge’s deci-
sion and in fn. 9, above.
a card. He also added Richardson, who signed his card in
Maldonado’s presence, and determined that a total of 19
employees were coerced and their authorization cards
were thus tainted.11 The judge then subtracted the 19
tainted cards from the total of 111 signed authorization
cards and concluded that the Union had the support of 92
uncoerced employees, a majority of the proposed unit of
150. Consequently, the judge found that Dairyland’s
grant of recognition did not violate Section 8(a)(2) of the
Act, that the Union’s acceptance of recognition did not
violate Section 8(b)(1)(A), that Dairyland did not violate
Section 8(a)(3) by entering into, maintaining, and enforc-
ing a collective-bargaining agreement containing a un-
ion- security clause, and that the Union did not violate
Section 8(b)(2) by entering into, maintaining, and enforc-
ing such agreement.
B. Exceptions
The General Counsel excepts to the judge’s failure to
find that Dairyland unlawfully granted recognition, argu-
ing that the judge applied the incorrect standard. The
General Counsel contends that the judge erroneously
applied a strict mathematical calculation and that the
recognition was unlawful because Dairyland engaged in
a pattern of unlawful assistance that tainted the Union’s
card majority. For the reasons stated below, we find
merit to the General Counsel’s exceptions, reverse the
judge, and find that the recognition and resulting collec-
tive-bargaining agreement violated the Act as alleged.
C. Legal Standard
An employer violates Section 8(a)(2) of the Act when
it extends recognition to a union that does not represent
an uncoerced majority of employees. Ladies Garment
Workers, 366 U.S. 731 (1961). The General Counsel
does not need to show, with mathematical precision, that
the union lacks the support of an uncoerced majority of
employees. SMI of Worcester, Inc., 271 NLRB 1508,
1520 (1984); Clement Bros. Co., 165 NLRB 698, 699
(1967) (holding that coercion of 7 employees out of 129
who signed authorization cards in a unit of approxi-
mately the same size was sufficient to infer a larger pat-
tern of coercion amid other violations), enfd. 407 F.2d
1027 (5th Cir. 1969). Rather, “‘[a] pattern of company
assistance can be sufficient to invalidate all cards.’” Fa-
mous Castings Corp., 301 NLRB 404, 408 (1991) (quot-
ing Amalgamated Local 355 v. NLRB, 481 F.2d 996,
1002 fn. 8 (2d Cir. 1973)). In determining whether a
pattern of unlawful assistance exists, the Board examines
the totality of the circumstances, including conduct oc-

11 The judge inadvertently counted Richardson twice because he was
also a warehouse employee; the correct number would actually be 18.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD312
curring both before and after recognition of the union.
Farmers Energy Corp., 266 NLRB 722, 722–723 (1983)
(determination of whether employer’s pre- and post-
recognition unlawful acts tainted majority status depends
on the entire “‘general contemporaneous current of
which they were integral parts’”) (quoting Machinists,
Lodge No. 35 v. NLRB, 110 F.2d 29, 35 (D.C. Cir. 1939),
affd. 311 U.S. 72 (1940)), enfd. 730 F.2d 1098 (7th Cir.
1984); Windsor Castle Health Care Facilities, 310
NLRB 579, 592 (1993) (finding that “circumstances oc-
curring after the execution of the collective-bargaining
agreement further manifest[ed] a pattern of assistance,”
enfd. in relevant part 13 F.3d 619 (2d Cir. 1994).
Thus, an employer unlawfully grants recognition to a
union if it has engaged in a pattern of unlawful assis-
tance. E.g., Windsor Castle, supra at 590. Some exam-
ples of conduct constituting unlawful assistance include
directing employees to meet with a union representative
to sign an authorization card and having a supervisor or
company official present when cards are signed. Duane
Reade, Inc., 338 NLRB 943 (2003), enfd. 99 Fed. Appx.
240 (D.C. Cir. 2004). When such conduct is accompa-
nied by other coercive activity that interferes with em-
ployees’ Section 7 rights, that additional coercive con-
duct becomes part of the overall pattern of unlawful as-
sistance. See, e.g., Famous Castings Corp., 301 NLRB
at 407–408 (employer’s direction of employees to sign
cards, interrogation of employees, and issuance of threats
constituted pattern of assistance sufficient to taint major-
ity).
Rather than considering whether the totality of the cir-
cumstances demonstrated a pattern of unlawful assis-
tance, the judge simply subtracted 19 tainted authoriza-
tion cards from the 111-card total and found that a major-
ity of uncoerced employees still supported the Union. As
set forth above, the judge did not apply the appropriate
standard. E.g., Famous Castings Corp., 301 NLRB at
408 (“‘[T]he General Counsel need not prove with
mathematical certainty that the union lacked majority
support’” (quoting Siro Security Service, 247 NLRB
1266, 1271 (1980))). Applying the appropriate standard,
we find, as explained below, that the totality of the cir-
cumstances demonstrates that Dairyland’s conduct con-
stituted a pattern of unlawful assistance sufficient to taint
the Union’s card majority.
D. Analysis
As found by the judge, Dairyland engaged in several
instances of unlawful assistance to the Union and other
coercive conduct. On the day that the Union came to the
facility, Supervisor Kelly directed 18 employees to meet
with the Union to sign a card, and Supervisor Maldonado
was present when warehouse employee Bobby Richard-
son signed a card and was in and out of other card-
signing meetings. That same day, Maldonado also
threatened an employee with discharge if he did not sign
a card and promised increased medical benefits to an-
other employee if he supported the Union. Dairyland’s
pattern of unlawful assistance continued into June, when
Vice President Pappas engaged in interrogation and sur-
veillance and threatened an employee that the employees
would lose work if the Teamsters came into Dairyland’s
facility.
We find that this conduct demonstrates a pattern of
unlawful assistance to the Union sufficient to taint the
Union’s majority support. Less interference than oc-
curred here has been found sufficient to taint a union’s
majority status. See Clement Bros., supra (coercion in
connection with 7 authorization cards sufficient to taint
union’s majority status where all 129 unit employees
signed authorization cards). Dairyland’s conduct on
January 27 was in itself a substantial indication of a pat-
tern of unlawful assistance to taint the Union’s showing
of majority support, and its subsequent coercive behavior
demonstrates that the events of January 27 were not iso-
lated but part of a larger course of conduct. As found by
the judge, whose findings in this regard we have adopted,
Dairyland continued to interfere with employees’ Section
7 rights in a manner demonstrating unlawful support for
the Union by additional threats, unlawful interrogation,
surveillance, and creating the impression of surveillance.
Thus, the totality of the circumstances establishes that
Dairyland engaged in a pattern of unlawful assistance to
the Union over a period of several months.
For the foregoing reasons, we find that the record does
not show that the Union represented an uncoerced major-
ity of employees when Dairyland granted recognition.
Accordingly, Dairyland’s grant of recognition to the Un-
ion violated Section 8(a)(2). Ladies Garment Workers,
supra.12 Further, by entering into, maintaining, and en-
forcing a collective-bargaining agreement containing a
union security clause at a time when the Union did not
represent an uncoerced majority of employees, Dairyland
violated Section 8(a)(3) of the Act. Duane Reade, 338
NLRB at 944. Similarly, the Union, by accepting unlaw-
ful assistance from Dairyland, violated Section
8(b)(1)(A) of the Act, Ladies Garment Workers, supra,
and, by entering into, maintaining, and enforcing a col-
lective-bargaining agreement with a union-security
clause at a time when it did not represent an uncoerced

12 Because we find, for the reasons set forth above, that Dairyland
unlawfully recognized the Union, we find it unnecessary to pass on the
General Counsel’s alternative theory of a violation, i.e., that Dairyland
violated Sec. 8(a)(2) by seeking to negotiate a collective-bargaining
agreement with the Union before its formal grant of recognition.
DAIRYLAND USA CORP. 313
majority of employees, violated Section 8(b)(2) of the
Act as well, Duane Reade, supra.
Our analysis in this case is not, as our concurring col-
league contends, at odds with the Board’s treatment of
Gissel bargaining orders and election objections.
First, we note that no party in this proceeding has ad-
vanced the argument endorsed by our colleague. Since
the argument was not addressed in the pleadings, raised
before the judge or briefed to the Board, it is not properly
before us. Cf. Transport Workers Local 525, 329 NLRB
543, 543–544 fn. 1 (1999) (argument advanced for the
first time in an exceptions brief not properly before the
Board); see also Group Health Inc., 325 NLRB 342, 345
fn. 15 (1998). However, because our colleague has ques-
tioned, sua sponte, the precedent she joins in applying,
we briefly address her arguments. We show below that
there is no inconsistency in the relevant law.
In the instant case, there was a purported card majority
for the Union. However, there was also extensive unlaw-
ful conduct involved in the solicitation of the cards, in-
cluding threats, interrogations, surveillance, and prom-
ises of benefits in exchange for support of the employer-
preferred union. That pattern of coercive conduct and
unlawful assistance of a favored union supports a reason-
able inference that the claimed card majority was tainted.
Thus, the recognition was unlawful under Section
8(a)(2).
Our colleague does not appear to disagree with this in-
ference, and, indeed, finds the 8(a)(2) violation. How-
ever, she argues that this analysis, which the Board has
consistently applied for many years with circuit court
approval, is inconsistent with the analysis applied by the
Board in Gissel13 cases. In Gissel cases, the Board im-
poses the extraordinary remedy of a bargaining order
where the Union possesses a valid card majority, and the
employer’s unfair labor practices are so severe and per-
vasive that a fair re-run election is unlikely. If the union
does not have a valid card majority, there will be no bar-
gaining order, even though the employer has engaged in
substantial unfair labor practices.14
Our colleague suggests that our decision today war-
rants a different approach in the latter situation. In her
view, the Board should infer that, but for the employer’s
unlawful conduct, the union would have achieved major-
ity status, and thus a Gissel order should be entered.
The Board properly does not draw this inference, and
the difference between the Gissel context and the instant
case is clear. Indeed, the difference is grounded in the
statute itself. Sections 8(a)(5) and 9(a) explicitly provide

13 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
14 Gourmet Foods, 270 NLRB 578 (1984).
that the duty to bargain does not exist unless a majority
of the employees have “designated or selected” the un-
ion.15 It is not sufficient to infer that a majority would
have done so if there had been no unlawful conduct. By
contrast in the instant case, there is no statutory impedi-
ment to the Board’s drawing a reasonable inference that
unfair labor practices have tainted a union’s card major-
ity.
The objections cases are also different from the instant
case. The issue in objections cases in not whether cards
are tainted, but rather whether, notwithstanding the pro-
tections afforded by a secret ballot election conducted
under the aegis of the Board, the objectionable conduct
so interfered with the necessary “laboratory conditions”
as to prevent the employees’ expression of a free choice
in the election. See, e.g., Caron International, Inc., 246
NLRB 1120 (1979). Although, the relative margin in the
election results can be a factor in making this judgment,
it is simply one of the relevant factors in determining
whether the election should be set aside. Id.
An additional factor in objection cases is the extent to
which the improper conduct was disseminated in the
unit. The Board places the burden of proof on the object-
ing party, and thus does not presume dissemination.
Crown Bolt Inc., 343 NLRB 776, 777 (2004). Because
“there is a strong presumption that ballots cast under
specific NLRB procedural safeguards reflect the true
desires of the employees . . . the burden of proof on par-
ties seeking to have a Board-supervised election set aside
is a heavy one,” and an election will not lightly be set
aside. Id. (internal quotations and citations omitted).
Accordingly, for example, if a union has won an election,
9(a) status will not be denied even if there is misconduct,
provided that misconduct has not been widely dissemi-
nated. By contrast, the instant case involves authoriza-
tion cards, not secret ballots cast under the Board’s su-
pervision, and a pattern of unlawful conduct in obtaining
those very cards. In order to find 9(a) status, the Board
must be satisfied that the cards are valid—i.e., that a ma-
jority has designated or selected the union. Thus, absent
a showing that unlawful conduct was de minimus, the
Board will not find 9(a) status.
ORDER
The National Labor Relations Board orders that
A. The Respondent, Dairyland USA Corporation, the
Bronx, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Recognizing Local 348-S, United Food and Commer-
cial Workers, as the collective-bargaining representative of

15 Gourmet Foods, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD314
its employees, unless and until it is certified by the Board as
the collective-bargaining representative of such employees
pursuant to Section 9(c) of the Act.
(b) Maintaining or giving any effect to the collective-
bargaining agreement between Dairyland USA Corporation
and Local 348-S entered into on or about February 1, 2003,
or any renewal, extension, or modification thereof, unless
and until Local 348-S is certified by the Board as the collec-
tive-bargaining representative of such employees; however,
nothing in this Order shall require any changes in wages or
other terms and conditions of employment that may have
been established pursuant to the collective-bargaining
agreement.
(c) Threatening employees with discharge if they do
not sign a union authorization card.
(d) Creating the impression of surveillance of employ-
ees’ union activities.
(e) Engaging in surveillance of employees’ union ac-
tivities.
(f) Interrogating any employee about protected activi-
ties.
(g) Threatening employees with loss of work because
of their union activity.
(h) Promising increased medical benefits to employees
if they support the Union.
(i) Directing employees to sign a union authorization
card.
(j) 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) Withdraw and withhold all recognition from Local
348-S as the exclusive collective-bargaining representative
of its employees unless and until it has been duly certified
by the Board as the exclusive representative of such em-
ployees.
(b) Jointly and severally with Local 348-S reimburse with
interest all present and former employees for all initiation
fees, dues, and other moneys paid by them or withheld from
them pursuant to the terms of the dues check-off and union-
security clauses of the February 1, 2003 collective-
bargaining agreement. However, reimbursement does not
extend to those employees who voluntarily joined and be-
came members of Local 348-S prior to January 27, 2003.
(c) Within 14 days after service by the Region, post at
its facilities in English and Spanish copies of the attached
notice marked “Appendix A.”16 Copies of the notice, on

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
forms provided by the Regional Director for Region 2,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since January 27, 2003.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
B. The Respondent, Local 348-S, United Food and
Commercial Workers, Forest Hills, New York, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Accepting recognition from and executing a collec-
tive-bargaining agreement with Dairyland USA Corpora-
tion, unless and until Local 348-S is certified by the Board
as the collective-bargaining representative of a unit of
Dairyland’s employees pursuant to Section 9(c) of the Act.
(b) Giving effect to the February 1, 2003 collective-
bargaining agreement between the Respondent Dairyland
USA Corporation and the Respondent Local 348-S, or to
any extension, renewal, or modification thereof.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with Dairyland USA Corpora-
tion, reimburse with interest all present and former Dairy-
land employees for all initiation fees, dues, and other mon-
eys paid by them or withheld from them pursuant to the
terms of the dues checkoff and union-security clauses of the
February 1, 2003 collective-bargaining agreement. How-
ever, reimbursement does not extend to those Dairyland
employees who voluntarily joined and became members of
Local 348-S prior to January 27, 2003.
(b) Within 14 days after service by the Region, post at
its union office in Forest Hills, New York, in English and
Spanish, copies of the attached notice marked “Appendix
B.”17 Copies of the notice, on forms provided by the
Regional Director for Region 2, after being signed by the

17 See fn. 16, supra.
DAIRYLAND USA CORP. 315
Respondent's authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
MEMBER LIEBMAN, concurring.
Under the Board’s precedent applying Section 8(a)(2)
of the Act, a pattern of employer assistance or coercion
precludes a union from establishing majority support
among employees by signed authorization cards, even
without a showing that the employer’s conduct affected a
sufficient number of card signers to deprive the union of
an actual majority.1 That precedent dictates the result in
this case, and so I concur.
I write separately to point out that the Board’s ap-
proach in this area—which has never been carefully ex-
plained—seems to be at odds with its approach to analo-
gous legal issues. In the context of bargaining orders
issued to remedy employer unfair labor practices during
union organizing campaigns, the Board requires a union
to demonstrate an actual card majority. And in the elec-
tion context, the Board requires specific proof that objec-
tionable conduct potentially affected enough employees
to change the result of the election. But where, as here,
the issue is employer conduct that aids a union, no
analogous showing is demanded. At some point, the
Board should reconcile its precedents.
I agree with the judge’s finding that Respondent
Dairyland violated Section 8(a)(2) by directing 18 ware-
house employees to sign Local 348-S authorization
cards, and that Dairyland’s coercive conduct immediately
before or several months after its recognition of Local
348-S violated Section 8(a)(1). My doubt here involves
the conclusion that Dairyland violated Section 8(a)(2) by
recognizing Local 348-S, despite the fact that even ex-
cluding up to 20 cards of employees shown to be poten-
tially coerced, Local 348-S could still demonstrate 60
percent majority support within the bargaining unit.
While the rule applied to reach this result is well estab-
lished, the rationale for setting aside the majority show-

1 See, e.g., Famous Castings Corp., 301 NLRB 404, 408 (1991)
(holding that a pattern of company assistance was sufficient to invali-
date all of a union’s signed authorization cards without showing with
mathematical precision that a sufficient number of employees were
coerced in signing their cards to affect the union’s majority).
ing of cards as objective indicators of employee free
choice has not been articulated and is not clear. There
seem to me three potential rationales for this rule. First,
we could conclude that once the colluding parties’ mis-
conduct passes a certain threshold, there is an irrebuttable
presumption that a majority of the employees do not
support the union, no matter how many signed cards.
Second, we could presume that the misconduct, because
it is more than isolated, has necessarily been dissemi-
nated throughout the bargaining unit. Third, we could, as
is suggested in cases cited in the majority opinion, sim-
ply infer that if the undefined threshold of illegal conduct
is breached, many more unlawful acts beyond those
shown to constitute the pattern must have occurred.2
Any of these explanations, however, would seem to con-
travene the Board’s approach to analogous legal issues.
Whatever the rationale, our conclusion here raises an
apparent inconsistency with the Board’s practice con-
cerning remedial bargaining orders. In that context, the
Board, under NLRB v. Gissel Packing Co.,3 orders an
employer to bargain with a union as a remedy for its se-
rious unfair labor practices during an organizing cam-
paign that would tend to dissipate the union’s majority
status and make a fair election unlikely. Before the
Board will grant a Gissel bargaining order, however, the
union must be able to demonstrate (most often through
cards) that “at one time, in some form” it enjoyed the
support of a majority of the bargaining unit’s members.4
The Board embraces none of the potential rationales
for today’s rule in the Gissel context. Regardless of how
oppressively a company responds to its employees’ at-
tempts to organize, the Board has declined to issue non-
majority bargaining orders under any circumstances for
more than two decades. That is, no matter how egre-
gious the employer’s misconduct, there is no irrebuttable
presumption that a majority of employees actually sup-
ported the union, even though only a minority signed
cards. Furthermore, the Board will not infer that if a
pattern of coercive conduct existed, enough other acts
must have taken place to have affected a majority of the
employees. Indeed, the Board has criticized any poten-
tial reliance on “reasonable” inferences to support non-
majority orders as involving “the substitution of guess-
work and speculation for objective evidence, thereby
eroding the majority rule principle.”5

2 SMI of Worcester, Inc., 271 NLRB 1508, 1520 (1984); and Clem-
ent Bros. Co., 165 NLRB 698, 699 (1967), enfd. 407 F.2d 1027 (5th
Cir. 1969).
3 395 U.S. 575, 610, 613–614 (1969).
4 Gourmet Foods, 270 NLRB 578, 586 (1984). I have dissented
from this approach. See First Legal Support Services, 342 NLRB 350,
354 (2004).
5 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD316
In other words, the Board’s respect for employee free
choice is so great that it is unwilling to grant a Gissel
bargaining order that might infringe on that choice, even
when an employer’s campaign of antiunion coercion
during a union’s organizing drive makes it arguably rea-
sonable to infer that the union might have garnered au-
thorization cards from a majority of the employees if not
for the employer’s illegal conduct. If the principle of
employee free choice is so important in the Gissel con-
text that the Board will not order bargaining with a union
prevented from attaining majority status through cards by
an employer’s “pervasive and outrageous unfair labor
practices,”6 then it makes little sense for us to brush aside
a demonstrated majority on the current facts when no
party has shown that majority to have been affected by
unlawful acts.
Our result today also appears to be in tension with our
treatment of election objections. In determining whether
objectionable conduct could have affected the results of
an election, the Board considers the number and severity
of violations, the extent of their dissemination, and the
size of the bargaining unit, among other things.7
In making that determination, the Board does not at-
tempt to supply evidence of wider effect than the record
supports. Specifically, in contrast with the cases cited
by the majority, the Board will not infer greater illegal
activity than has been affirmatively proven by the evi-
dence.8 Nor will the Board presume that unlawful con-
duct has been disseminated. Thus, in the recent Crown
Bolt9 decision, a majority of the Board (Member Walsh
and I dissenting) refused to continue to presume that
threats of plant closure,10 will be disseminated through-
out the bargaining unit.
When an employer maintains an unlawful rule during
the preelection period, the Board has refused, over my
dissent, to presume that employees were affected by it,
despite the rule’s inclusion the policy manual distributed
to each employee.11 Moreover, where third-party mis-
conduct has taken place, my colleagues have expressed a
preference for counting heads of those potentially co-

6 Id. at 583.
7 Clark Equipment Co., 278 NLRB 498, 505 (1986).
8 See Werthan Packaging, Inc., 345 NLRB 343 (2005). But see
Harborside Healthcare, Inc., 343 NLRB 906, 909 and 915 (2004)
(prounion supervisory misconduct inferred).
9 Crown Bolt, Inc., 343 NLRB 776 (2004).
10 See Indiana Cal Pro, Inc. v. NLRB, 863 F.2d 1292, 1301–1302
(6th Cir. 1988) (collecting cases regarding the severity that courts as-
cribe to threats of plant closure made during organizing campaigns);
Long Airdox Co., 277 NLRB 1157, 1160 (1985) (describing threats of
plant closure as “one of the most coercive actions which a company can
take in seeking to influence an election”).
11 Delta Brands, Inc., 344 NLRB 252 (2005).
erced and comparing that total to the margin of victory.12
In the face of these authorities, all of which ostensibly
give primacy to employee free choice, it is anomalous to
rely on inference over evidence in the Section 8(a)(2)
context.
In sum, the line of authority relied upon today appears,
at best, to reveal a discrepancy in the Board’s law. The
Board could explain the varying approaches. Or, it could
adopt a unitary standard covering all of these situations.
Under one possible standard, employees’ expressions of
free choice, through cards or ballots, would not be over-
turned without a clear showing that coercive conduct
reached a sufficient number of employees to affect the
majority. Under a different standard, a pattern of coer-
cive conduct would be sufficient to infer that any sup-
posed expression of employee choice, through either
cards or ballots, would be found inherently unreliable if
closely related in time to the repeated coercion. Today I
do not decide whether one of these approaches or some
other approach is preferable. Hopefully, however, in the
interests of consistency, my colleagues will consider rec-
onciling the Board’s law at some time.
APPENDIX A
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT recognize Local 348-S, United Food and
Commercial Workers, as your collective-bargaining rep-
resentative, unless and until it is certified by the Board as
such.
WE WILL NOT maintain or give any effect to the collec-
tive-bargaining agreement between Dairyland USA Cor-
poration and Local 348-S entered into on or about Febru-

12 See, e.g., Accubilt, Inc., 340 NLRB 1337, 1339 fn. 6 (2003)
(Chairman Battista and Member Schaumber concurring in disagree-
ment with the “general atmosphere of fear and reprisal” standard which
governs whether third party misconduct is sufficient to set aside elec-
tion).
DAIRYLAND USA CORP. 317
ary 1, 2003, or any renewal, extension, or modification
thereof, unless and until Local 348-S is certified by the
Board as your collective-bargaining representative.
WE WILL NOT threaten employees with discharge if
they do not sign a union authorization card.
WE WILL NOT create the impression of surveillance of
employees’ union activities.
WE WILL NOT engage in surveillance of employees’ un-
ion activities.
WE WILL NOT interrogate any employee about protected
activities.
WE WILL NOT threaten employees with loss of work be-
cause of their union activity.
WE WILL NOT promise increased medical benefits to
employees if they support the Union.
WE WILL NOT direct employees to sign a union authori-
zation card.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL withdraw and withhold all recognition from Lo-
cal 348-S as the exclusive collective-bargaining representa-
tive of our employees unless and until it has been duly certi-
fied by the Board as your exclusive representative.
WE WILL, jointly and severally with Local 348-S, re-
imburse with interest all present and former employees
for all initiation fees, dues, and other moneys paid by
them or withheld from them pursuant to the terms of the
dues checkoff and union-security clauses of the February
1, 2003 collective-bargaining agreement. However, re-
imbursement does not extend to those employees who
voluntarily joined and became members of Local 348-S
prior to January 27, 2003.
DAIRYLAND USA CORPORATION
APPENDIX B
NOTICE TO MEMBERS
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT accept recognition from and execute a
collective-bargaining agreement with Dairyland USA
Corporation unless and until Local 348-S is certified by
the Board as the collective-bargaining representative of a
unit of Dairyland’s employees.
WE WILL NOT give effect to the February 1, 2003 collec-
tive-bargaining agreement between Dairyland USA Corpo-
ration and Local 348-S, or to any extension, renewal, or
modification of the agreement.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of your rights guaranteed you
by Section 7 of the Act.
WE WILL, jointly and severally with Dairyland USA
Corporation, reimburse with interest all present and for-
mer Dairyland employees for all initiation fees, dues, and
other moneys paid by them or withheld from them pur-
suant to the terms of the dues checkoff and union-
security clauses of the February 1, 2003 collective-
bargaining agreement. However, reimbursement does
not extend to those Dairyland employees who voluntarily
joined and became members of Local 348-S prior to
January 27, 2003.
LOCAL 348-S, UNITED FOOD AND COMMERCIAL
WORKERS
Ruth Weinreb, Esq., for the General Counsel.
Harold Weinrich, Esq., Steven Goodman, Esq., and Christopher
Valentino, Esq., for Dairyland.
J. Warren Mangan, Esq., for Local 348.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York City, New York, during 16
days of hearing commencing March 29, 2004. The record was
closed on January 11, 2005. Upon a charge filed on July 14,
2003, a consolidated complaint was issued on March 9, 2004,
alleging that Dairyland USA Corporation (Dairyland) violated
Section 8(a)(1), (2), (3), and (4) of the National Labor Relations
Act (the Act). The complaint further alleged that Local 348-S,
UFCW, AFL–CIO (Local 348 or the Union) violated Section
8(b)(1) and (2) of the Act. Respondents filed answers denying
the commission of the alleged unfair labor practices.
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine witnesses and file
briefs. Briefs were filed by the parties on April 25, 2005.
Upon the entire record of the case, including my observation of
the demeanor of the witnesses,1 I make the following

1 Credibility resolutions have been based on the witnesses’ de-
meanor, the weight of respective evidence, established or admitted
facts, inherent probabilities, and inferences drawn from the record as a
whole.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD318
FINDINGS OF FACT
I. JURISDICTION
Dairyland, a New York corporation, with its principal office
and place of business in Bronx, New York, has been engaged in
the business of wholesale food distribution. It has been admit-
ted, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. In
addition, it has been admitted, and I find, that Local 348 is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
On December 13, 2002, John Fazio, vice president of Local
348, met with Dean Facatsellis, vice president of Dairyland.
Fazio provided Facatsellis with information concerning Local
348 and the two discussed the Union’s medical plan. In early
January 2003,2 Facatsellis contacted Fazio to further discuss
Local 348’s medical plan. They also discussed the possibility
of entering into a neutrality agreement.
On January 7, Fazio prepared a proposed contract which was
subsequently sent to Dairyland. On January 23, representatives
of the Union and Dairyland met to discuss the medical plan and
executed a neutrality agreement. On January 27, Local 348’s
representatives went to Dairyland’s facility to speak with the
company’s drivers and warehouse employees about joining
their union and to obtain executed authorization cards. Pursu-
ant to the terms of the neutrality agreement, on January 31, an
arbitrator conducted a card check. The arbitrator determined
that Local 348 had obtained 111 valid authorization card signa-
tures from the bargaining unit of 150 employees. The arbitrator
certified Local 348 as the bargaining representative of Dairy-
land’s drivers and warehouse employees. On February 1, the
parties entered into a 4-year collective-bargaining agreement.
2. Testimony of Miguel Pierre
Pierre, a Dairyland driver, testified that on January 27, he
met with several representatives of Local 348 in the dispatch
office. He testified that the meeting took place between 1 and 2
p.m. and that he was introduced to the union representatives by
Mineo Maldonado, Dairyland’s operations manager. He testi-
fied that Maldonado said that the “union was there for us” and
would “supply medical benefits.”
Pierre further testified that a meeting was held between the
drivers and Local 348 representatives on June 5. The drivers
asked questions about their medical benefits and work condi-
tions. Pierre also testified that later in June the drivers had a
meeting with a Local 202, IBT representative in the company
parking lot. He testified that the dispatcher, Eddie Mercano,
was close by, holding a telephone. Soon thereafter Facatsellis
appeared and began talking to Mercano. The drivers then left
the parking lot.

2 All dates refer to 2003, unless otherwise specified.
3. Testimony of Juan Flores
Flores is a driver employed by Dairyland. He testified that at
the meeting of Local 348 representatives in January,
Maldonado was also there and told him, “Juan, you should be a
member of the union because they give benefits for doctors and
eyesight.” Flores also testified that Maldonado was present
when he signed the authorization card.
Flores further testified that a meeting of drivers was held in
June at which time a Local 202 representative was present. He
testified that the meeting was held in the parking lot and that
Mercano came by and was talking on the telephone. Facatsellis
came by, shook hands with Mercano and the drivers left. Flo-
res testified that several days later he saw Maldonado who told
him that “I know you were at the meeting.”
On cross-examination, Flores was asked if he discussed his
testimony with anyone. He answered that he had not. He was
then asked if he had ever discussed his testimony with Weinreb
(Weinreb), counsel for the General Counsel. He testified that
he never discussed his testimony with Weinreb. He conceded
that he signed a petition to decertify Local 348. He also con-
ceded that Maldonado’s office is separate from the dispatch
office.
4. Testimony of Efrain Rodriguez
Rodriguez, a warehouse employee, testified that he was told
by his supervisor, Kevin Kelly, to go to the January meeting.
He testified that the meeting took place in the dispatch office
and that three Local 348 representatives were there. He also
stated that Maldonado was at the meeting.
Rodriguez testified that before he signed the authorization
card, “I looked at the green card. At that time I heard Mineo
[Maldonado] make a statement to Santana who left the office.
And Mineo stated to him that if he didn’t sign at the time, he
wasn’t going to be working there.” On cross-examination,
Rodriguez testified, “Santana just walked out of the office.
Mineo, as he followed him out, said to him if you don’t sign the
card, you won’t be working here.”
On May 24, a meeting of warehouse employees was held in
the “chocolate” room together with Local 348 representatives.
Rodriguez testified that he complained about timecards. Rodri-
guez stated that several days later Kelly told him that “he’s
hearing things about me he’s not liking and that I should put a
stop to it. That if I’m unhappy or miserable why I just don’t
quit.”
5. Testimony of Carlos Charriez
Charriez is a Dairyland warehouse employee. His supervisor
is Kevin Kelly. He testified that in January several of the ware-
house employees met with Kelly in the chocolate room. He
testified that Kelly told them that they “always wanted a union.
We finally got you one, and we’d like you to go to Brian
[Adair’s] office to sign some cards.” Charriez testified that
Fazio, the union representative, handed him some cards to sign.
Charriez asked Fazio what would happen if he didn’t sign.
Fazio replied, “[Y]ou will have to get another job because this
is going to be a union shop.” Charriez further testified that in
May he asked Maldonado what would have happened had he
not signed the union authorization card. Charriez stated that
DAIRYLAND USA CORP. 319
Maldonado replied, “[M]ajority rules. You had to sign the
cards.” Charriez also testified that at the meeting in January,
Maldonado was “going in and out of the room” and that he
didn’t remember whether Maldonado was present when Fazio
made the statement about signing the card.
6. Testimony of Richardson
Bobby Richardson is a warehouse employee of Dairyland.
His supervisor is Kevin Kelly. He testified that in January the
day crew was assembled in the chocolate room. Kelly told the
employees that “we have a union coming in.” The next day
Kelly told Richardson “the union’s here. Go talk to the union.”
Kelly went to the dispatch office where the Local 348 represen-
tatives were present. They handed Richardson a union authori-
zation card and the “highlight” sheet, which listed the benefits
the employees would receive. Richardson signed both docu-
ments. He testified that Maldonado was present when he
signed the card. Richardson also testified that in May he asked
Maldonado whether he would still have a job if he hadn’t
signed the authorization card. Maldonado replied, “The major-
ity rules. If you don’t sign in, you don’t have a job.”
7. Testimony of Marvin Benjamin
Benjamin is another warehouse employee. His supervisor is
Kevin Kelly. He testified that in January Kelly told the ware-
house employees, “good news, guys, we’ve got a meeting.”
Kelly then said that the employees “have to sign a union card or
we won’t be in the union.” At the end of the meeting Kelly told
the employees that “we have to go to Brian’s office in groups to
sign the union card.” Benjamin testified that it was Fazio who
told him to sign the card and that Brian Adair was at his desk
when he signed the card. Benjamin also testified that
Maldonado briefly spoke at the meeting and that he was in the
room “just a few moments.”
8. Testimony of William Urizar
Urizar is a Dairyland driver. He testified that at 2:30 p.m. on
January 27 he dropped off his keys in Maldonado’s office and
met several representatives from Local 348. He testified that he
stayed in the office for 15 minutes and that Maldonado told
him, “That’s the union you guys want and sign the card.” Uri-
zar further testified that Maldonado told him, “Before you guys
paid medical benefits, now it’s going to be free, so sign the
card.” Urizar testified that Maldonado was present when he
signed the authorization card.
Urizar testified that in June the drivers had a meeting in the
parking lot. They discussed “how to try to get the Teamsters,
Local 202.” Eddie Mercano was standing near them with a
“walkie-talkie.” After 10 minutes Dean Facatsellis appeared at
which time the drivers left. Urizar testified that 2 days later
John Pappas, vice president of Dairyland, called him into his
office. Pappas said, “Willie, what were you doing in that meet-
ing? . . . We know you were there.” Urizar testified that Pappas
also said, “[T]hose Teamsters are a mafia . . . if those Team-
sters come into the company, we’re going to cut 30 routes.”
Urizar filed a charge in this proceeding on July 14. He testi-
fied that his normal route was Route 9, covering the east side of
Manhattan and that he normally made between 19 and 20 de-
liveries each day. He testified that beginning October, and
lasting for 2–3 months, his deliveries were increased to 37, at
which time he was being sent to Connecticut and Westchester.
He testified that prior to October he had never been sent to
Connecticut or Westchester.
9. Testimony of Torres and Maldonado
Carmen Torres is Maldonado’s wife. She testified that she
had a 1:30 p.m. doctor’s appointment on January 27, and that
her husband picked her up from home at 1 p.m. She further
testified that she came back home at 3:30 p.m. and that her
husband left for the office at 4 p.m. Maldonado corroborated
his wife’s testimony and testified that he left Dairyland at 12:30
that afternoon and did not return until 4:45 p.m. Maldonado
also testified that his office is separate from the dispatch office.
He shares his office with Brian Adair and there is a door which
leads from his office to the dispatch office.
10. Testimony of John Fazio
Fazio testified that on January 27 he and the other Local 348
representatives did not meet with employees in Brian Adair’s
office. He also testified that he did not obtain any authorization
cards in Adair’s office and that Adair was not present when the
authorization cards were signed or when the “highlight” sheet
was signed.
B. Discussion and Conclusions
1. January 27 meeting
Charriez, Richardson, and Benjamin appeared to me to be
credible witnesses. They testified forthrightly and consistently.
To a large extent their testimony corroborated each other.
Based on their testimony and the record as a whole I find that a
meeting was held on January 27 between Local 348 representa-
tives and the warehouse employees and drivers. The meeting
was held in the dispatch office. Kelly met with the day crew of
the warehouse employees. He told the day crew, which num-
bered 18 warehouse employees, that they “have to go” to the
dispatch office “to sign” the union authorization cards.
I credit Torres’ testimony that she had a doctor’s appoint-
ment on the afternoon of January 27, and that her husband,
Mineo Maldonado, took her there. I credit his testimony that he
left the company at 12:30 p.m. and did not return until 4:45
p.m.
I credit Rodriguez’ testimony that Maldonado was there for
part of the meeting. I also credit Charriez’ testimony that
Maldonado “was going in and out of the room.” I further credit
Fazio’s testimony that Adair was not present when the highlight
sheet was signed or when the union authorization cards were
signed. There seemed to have been some confusion in the tes-
timony as to the nature of the dispatch office and Maldonado’s
and Adair’s office. Based on the record as a whole I find that
the dispatch office was separate from Maldonado’s and Adair’s
office. The dispatch office was where the employees received
their assignments and where they returned their keys. Next to
the dispatch office, separated by a door, was an office which
Maldonado and Adair shared. The January 27 meeting was
held in the dispatch office.
Urizar testified that he came to the office at 2:30 p.m. and
stayed for 15 minutes. He testified that Maldonado was there
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD320
and told him, “[T]hat’s the union you guys want and sign the
card.” I do not credit Urizar’s testimony in this regard. I have
found that Maldonado was not present at the company from
12:30 until 4:45 p.m.
Flores testified that at the January 27 meeting, Maldonado
told him, “Juan, you should be a member of the Union because
they give benefits for doctors and eyesight.” Flores also testi-
fied that Maldonado was present when he signed the union
authorization card. I do not credit Flores’ testimony. On cross-
examination, Flores conceded that he did not arrive at the meet-
ing until 1:30 p.m. As I have found earlier, Maldonado was not
there at that time. In addition, also on cross-examination, Flo-
res was asked whether he discussed his testimony with anyone.
He answered that he had not. He was then asked, several times,
whether he discussed his testimony with Weinreb, counsel for
the General Counsel. He testified that he never discussed his
testimony with Weinreb. I find that testimony to be incredible
and am not crediting his testimony in this proceeding.
2. Threat of discharge and impression of surveillance
Rodriguez testified that Maldonado followed Santana, a
driver, out of the dispatch office and told Santana, “[I]f you
don’t sign the card, you won’t be working here.” I credit Rod-
riguez’ testimony and find that this constituted a violation of
Section 8(a)(1) of the Act. In addition, Rodriguez testified that
at a meeting of warehouse employees in the chocolate room, he
complained about timecards. Several days later Kelly told him,
“[H]e’s hearing things about me he’s not liking.” I credit Rod-
riguez’ testimony and find that this violated Section 8(a)(1) of
the Act.
3. Interrogation, surveillance, and loss of work
Urizar testified that 2 days after the June meeting in the park-
ing lot, Pappas called him into his office and said, “Willie, what
were you doing at that meeting? . . . We know you were there.”
Pappas also told Urizar, “[I]f those Teamsters come into the
company, we’re going to cut 30 routes.” I credit Urizar’s tes-
timony and find that these statements violated Section 8(a)(1)
of the Act.
4. Local 348’s majority status
In cases alleging unlawful 8(a)(2) recognition, “it is the bur-
den of proof of General Counsel to establish that the union
accorded exclusive recognition was not the majority representa-
tive.” Rainey Security Agency, 274 NLRB 269, 279 (1985). I
credit Richardson’s testimony that Maldonado was present
when he signed the union authorization card. I have also found
that Kelly told the 18 warehouse employees in the day crew
that they have to sign the cards. Accordingly, I find that Gen-
eral Counsel has sustained her burden of showing that 19 of the
employees were not “uncoerced.”
The unit consists of 150 employees, 111 signed authorization
cards. Subtracting the above-mentioned 19 cards results in 92
validly signed cards. This constitutes a majority of unit em-
ployees. I find that General Counsel has not sustained her bur-
den and the allegation is dismissed.
5. Alleged onerous conditions imposed on Urizar
Urizar filed a charge on July 14, and an amended charge on
September 24. The complaint alleges that beginning October 3,
Dairyland imposed more onerous work conditions on Urizar.
Urizar testified that his normal route was Route 9, covering
the upper east side of Manhattan. He further testified that be-
ginning October, for 2 to 3 months, his deliveries were in-
creased from an average of 19–20 per day to 37 deliveries. He
also testified that prior to October he was never sent to Con-
necticut or Westchester to make deliveries. After October,
however, he testified that he was required to make deliveries to
both Connecticut and Westchester.
While Urizar testified that his normal route was Route 9, the
record shows otherwise. In fact, from January 1 through Sep-
tember 30, out of 133 deliveries, Urizar was assigned Route 9
only 38 times. Whereas Urizar testified that prior to October he
never was assigned deliveries in Connecticut or Westchester,
the record shows that during the period January 1 through Sep-
tember 30, Urizar was assigned deliveries in Westchester and
Connecticut 13 times. Finally, Urizar testified that beginning
October deliveries increased from an average of 19–20 to 37.
In fact, however, the record shows that for the period from June
2 through 30, Urizar’s average daily deliveries were 21.5. This
actually decreased to 19.75 for the period July 15 through De-
cember 30. The decrease took place even though Urizar filed
his initial charge on July 14. For the period October 1 through
December 30 Urizar’s average daily deliveries were 20.8. Dur-
ing this period Urizar was assigned a helper for each delivery.
The helper was not removed. I find that General Counsel has
not shown that more onerous working conditions were imposed
on Urizar. Accordingly, the allegation is dismissed.
6. Other allegations
The complaint alleges that Maldonado promised increased
medical benefits if the employees signed the union authoriza-
tion cards. I credit Pierre’s testimony that Maldonado intro-
duced the Local 348 representatives on January 27, and said
that the Union was “there for us” and would “supply medical
benefits.” A promise of increased benefits interferes with pro-
tected rights and violates Section 8(a)(1) of the Act. See
Gerig’s Dump Trucking, 320 NLRB 1017, 1022 (1996), enfd.
137 F.3d 936 (7th Cir. 1998).
The complaint also alleges that Dairyland directed employ-
ees to sign union authorization cards, in violation of Section
8(a)(2). I have found that Kelly directed the day crew to sign
cards on behalf of Local 348. I find this to be a violation of
Section 8(a)(2) of the Act. See Duane Reade, Inc., 338 NLRB
943, 944 (2003).
The General Counsel maintains that Maldonado engaged in
an unlawful act of surveillance in June when he stood outside
the drivers’ locker room as they met with Local 348 representa-
tives. Urizar, Flores, and Pierre testified that they did not see
Maldonado at the door. Pantaleon, however, testified that he
saw Maldonado at the door for approximately 1 minute. I do
not credit Pantaleon. During re-cross-examination, he continu-
ally answered questions by saying “I don’t remember.” I be-
lieve that he did remember the answers to many of the ques-
tions, but in effect refused to answer the questions posed by
counsel for Dairyland. Under such circumstances I believe that
his testimony should not be credited. See Bestway Trucking,
DAIRYLAND USA CORP. 321
310 NLRB 651, 661 (1993), enfd. 22 F.3d 177 (7th Cir. 1994).
The General Counsel also maintains that Dairyland engaged
in surveillance at the parking lot meeting of employees in June.
The employees were gathered in a parking lot which was used
by several companies, by the employees and where Dairyland’s
trucks were parked. Mercano appeared not far from where the
employees were standing, talking into a cell phone. After about
10 minutes Facatsellis appeared and the drivers left the parking
lot. It has not been shown that talking into a cell phone consti-
tutes surveillance. In addition, it has not been shown that Mer-
cano was a supervisor within the meaning of the Act. In any
event, I have already found that Dairyland engaged in surveil-
lance on another occasion and therefore the violation will be
remedied.
Concerning any allegation not specifically found to be an un-
fair labor practice, I have carefully reviewed all of the allega-
tions and find that the General Counsel has not sustained her
burden of showing that Respondent has violated the Act with
respect to any other allegation.3

3 The General Counsel has moved to withdraw par. 9(c) of the com-
plaint and that portion of par. 8(a) which refers to Adair. The motion is
granted.
CONCLUSIONS OF LAW
1. Dairyland is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interrogating employees about their union activities,
by engaging in surveillance and creating the impression of sur-
veillance of protected activities, by threatening discharge and
by threatening loss of work for protected activities, and by
promising increased medical benefits, Dairyland has committed
unfair labor practices in violation of Section 8(a)(1) of the Act.
4. By directing its employees to sign union authorization
cards, Dairyland has committed an unfair labor practice within
the meaning of Section 8(a)(1) and (2) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondents did not violate the Act in any other manner
alleged in the complaint.
REMEDY
Having found that Dairyland has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
[Recommended Order omitted from publication.]