First Legal Support Services, LLC

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 350 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 29
350
First Legal Support Services, LLC and Warehouse
Union Local 6, International Longshore and
Warehousemen’s Union, AFL–CIO. Case 20–
CA–29922–1
June 30, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND MEISBURG
On June 12, 2002, Administrative Law Judge James
M. Kennedy issued the attached decision. The General
Counsel filed exceptions and a supporting brief pertain-
ing to the judge’s recommended remedy and Order. The
Charging Party filed similar cross-exceptions and a sup-
porting brief.
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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions, and to adopt his recommended Order.
This matter arose from an organizing drive by the
Charging Party, Warehouse Union Local 6, conducted
among the Respondent’s bicycle and driver couriers
working in the Respondent’s San Francisco operation in
November 2000.2 As of November 24, the Respondent
employed 20 bicycle and driver couriers assigned to its
San Francisco office.3 As found by the judge, the Re-
spondent responded to the Union’s campaign by commit-
ting numerous violations of Section 8(a)(1) and (3) of the
Act. To remedy these violations, the judge recom-
mended an Order with standard cease-and-desist lan-
guage, reinstate/instate provisions and make-whole
remedies for certain employees unlawfully mistreated,
and the cancellation of the Respondent’s unlawful con-
version of its field employees to independent contractor
status. The Respondent did not except to any of the
judge’s findings of violations or his recommended rem-
edy for these violations.

1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings pertaining to the judge’s rec-
ommended remedy and Order. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
In the absence of exceptions, we adopt all the judge’s unfair labor
practice findings and conclusions.
2 All dates are in 2000 unless other indicated.
3 For the reasons stated by the judge, we agree with the inclusion of
Dennis Kittelson in the bargaining unit of bicycle and driver couriers
found appropriate by the judge.
The judge concluded that a remedial bargaining order
was inappropriate under NLRB v. Gissel Packing Co.4
because a majority of the Respondent’s bicycle and
driver couriers had not executed authorization cards des-
ignating the Union as their collective-bargaining repre-
sentative. The judge found 10 of the 20 unit employees
had signed authorization cards prior to the commence-
ment of the Respondent’s unfair labor practices on No-
vember 24.5 In this connection, the judge specifically
rejected an eleventh card, an undated authorization card
purportedly signed by employee Casey Cook before No-
vember 24. The judge found that the Cook card had “too
many infirmities to be regarded as trustworthy” for pur-
poses of establishing the Union’s majority status. In
light of his conclusion that the Union failed to establish
majority status on November 24, the judge also declined
to award a nonmajority bargaining order. The judge re-
lied on prevailing Board precedent reflected by Gourmet
Foods, 270 NLRB 578 (1984). The General Counsel,
joined by the Union, excepts to the judge’s refusal to
recommend a remedial bargaining order of any kind.
They also except to the judge’s findings pertaining to the
Cook card. We agree with the judge and find no merit in
these exceptions.6

4 395 U.S. 575 (1969).
5 There are no exceptions to the authenticity of these 10 authoriza-
tion cards.
6 The General Counsel also requests the following extraordinary ac-
cess and notice remedies. Specifically, the General Counsel requests
that the Board order the Respondent to: (1) have the owner, Elisha
Gilboa, and the regional manager, David Tait, read the notice to em-
ployees; (2) allow the Union reasonable access to the Respondent’s
bulletin boards; (3) give the Union notice of, and equal time and access
to respond to, any address made by the Respondent regarding union
representation; (4) afford the Union access prior to the election to de-
liver a 30-minute address to employees during their working time; (5)
mail copies of the notice to all employees during their working time;
(5) mail copies of the notice to all employees on the payroll, going back
to the commencement of the unfair labor practices; (6) publish the
notice in the San Francisco Daily Journal; and (7) supply the Union
with the names and addresses of the unit employees.
Upon careful examination of the particular circumstances of this
case, we find that the extraordinary remedies requested by the General
Counsel are unwarranted here. In our view, such remedies go beyond
what is needed to fully rectify the unfair labor practices committed
against the Respondent’s employees. Because these remedies are “ex-
traordinary,” it must be demonstrated, as a precondition for granting
them, why traditional remedies will not sufficiently ameliorate the
effect of the unfair labor practices found. See Fieldcrest Cannon, Inc.,
318 NLRB 470, 473 (1995) (“such remedies are necessary ‘to dissipate
fully the coercive effects of the unfair labor practices found’”). Neither
the General Counsel nor our dissenting colleague has shown that tradi-
tional remedies are so deficient here to warrant imposing the extraordi-
nary remedies requested by the General Counsel. In Member Meis-
burg’s view, the traditional remedies supplemented by the broad order
are sufficient in this case to ensure that the employees will have the
opportunity to participate in a free and fair election. Nevertheless,
Member Meisburg notes that the judge was incorrect in suggesting that
FIRST LEGAL SUPPORT SERVICES, LLC 351
Initially, we adhere to established Board precedent on
the issue of nonmajority bargaining orders. Contrary to
our dissenting colleague, we are of the view that Gour-
met Foods, supra, was correctly decided, and we would
not overrule it. We, therefore, do not impose a nonma-
jority bargaining order in this case.
Thus, we must examine whether the judge properly re-
jected the Cook card for purposes of calculating whether
the Union had attained majority status as of November
24. Without the Cook card, the Union does not have the
card majority necessary for the issuance of a bargaining
order. For the reasons more fully stated in the judge’s
decision, we find that the General Counsel failed to es-
tablish that the Cook card was executed on or before No-
vember 24. We agree with the judge that the uncertainty
and confusion over the Cook card could have been
cleared up in several ways, including having Cook, the
card signer, verify the card and testify when he signed it
and what he did with it after he signed it.
The judge found that the Cook card was an undated
photocopy, and the date of execution could not be fixed
extrinsically with any confidence. Cook did not testify at
the hearing. Two different witnesses, Damon Votour and
Charles Annen, offered two different stories regarding
how the Cook card came into existence. However, there
is no other witness testimony or identifying mark on the
Cook card that connects the document to either Votour or
Annen. Votour and Annen each testified that he gave an
authorization card to Cook in November. Votour testi-
fied that Cook signed an authorization card during the
second or third week of November and then Votour
turned the card over to the Union prior to November 21.
Annen testified that he gave a card to Cook and dis-
cussed it with him on November 24. Annen originally
stated in his pretrial affidavit that Cook signed the card
and then handed it to Annen on November 24. When he
was confronted with his affidavit, Annen testified that
the affidavit was in error because he did not recall if
Cook had signed or handed him the card on November
24. According to his trial testimony, Annen had no idea
when the Cook card had been executed. Finding no as-
surance from the conflicting trial testimony of Votour
and Annen that the Cook card offered into evidence by
the General Counsel was a card passed out by either
Votour or Annen and executed by Cook on or before
November 24, the judge discredited both card solicitors’
versions.7 As more fully explained in his decision, the

he was foreclosed from recommending special remedies because he
was precluded from recommending a remedial bargaining order.
7 Contrary to our dissenting colleague, any potential evidentiary
problem with Annen’s pretrial affidavit was cleared up during the hear-
judge simply had no collateral evidence (e.g. other wit-
ness testimony or an official Board time and date stamp
on the photocopy) to authenticate the undated Cook card
and establish when it had been signed.
Accordingly, we agree with the judge that a remedial
bargaining order is inappropriate in this case because the
General Counsel failed to establish the Union’s majority
status.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, First Legal Support Services,
LLC, San Francisco, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.

MEMBER LIEBMAN, dissenting in part.
The Respondent answered its employees’ exercise of
their statutory rights with a torrent of unfair labor prac-
tices so egregious, and so clearly established, that the
Respondent has declined to file exceptions to the judge’s
finding that “category one unfair labor practices” were
committed here. The Supreme Court in NLRB v. Gissel
Packing Co., 395 U.S. 575, 613 (1969), defined this
category as involving “‘exceptional’ cases marked by
‘outrageous’ and ‘pervasive’ unfair labor practices. . . . of
‘such a nature that their coercive effects cannot be elimi-
nated by the application of traditional remedies, with the
result that a fair and reliable election cannot be had’”
(Citations omitted). My colleagues nevertheless refuse
to issue a remedial bargaining order based on the judge’s
dubious finding that the General Counsel failed to estab-
lish the Union’s majority support. My colleagues also
turn a blind eye to the compelling need for special reme-
dies to undo the lasting effects of the Respondent’s mis-
conduct. I respectfully dissent.1
In my view, the Respondent’s violations demand spe-
cial remedies. Further, the Board may and should issue a
remedial bargaining order because the judge erroneously
refused to count employee Casey Cook’s decisive au-
thorization card. Even assuming, however, that the Gen-
eral Counsel failed to establish that a majority of unit
employees supported the Union, the Board still should
issue a bargaining order.
I. THE BOARD MUST GRANT SPECIAL REMEDIES
The Board may order extraordinary or special reme-
dies when the respondent’s unfair labor practices are “‘so

ing when the General Counsel recalled Annen as a witness to testify
about the Cook card and to explain his pretrial affidavit on this subject.
1 I join my colleagues in adopting the judge’s unfair labor practice
findings and the judge’s issuance of a broad cease-and-desist order, for
the reasons he states.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 352
numerous, pervasive, and outrageous’ that such remedies
are necessary ‘to dissipate fully the coercive effects of
the unfair labor practices found.’” Federated Logistics
& Operations, 340 NLRB 255, 256 (2003) (citations
omitted). If ever a case satisfied this standard, it is this
one.
“[N]umerous, pervasive, and outrageous” does not
even begin to describe the Respondent’s unfair labor
practices. The found violations include the Respondent:
forcing employees to sign independent-contractor agree-
ments to strip them of their employee status; repeatedly
threatening employees with discharge if they did not sign
the agreement; actually discharging two employees be-
cause they supported the Union, and conditioning their
reinstatement on signing the agreement; repeatedly
threatening to close the facility if the organizing effort
continued; promising employees additional benefits if
they abandoned the Union; refusing to hire an applicant
because his spouse was associated with the Union;
threatening to discharge employees if they engaged in a
strike; warning employees that discussing the Union was
“harassment”; denigrating the Union and union officials;
and threatening employees that their organizing effort
was futile because, even if the “NLRB issues an order,
for compliance, . . . , they bring that order to us and we
say ‘fuck your order’ and then go to federal court for
years.”
With due respect to my colleagues, it is wishful think-
ing to conclude that the Board’s traditional remedies,
even supplemented with a broad cease-and-desist order,
are adequate to permit a fair election. By its egregious
misconduct, the Respondent demonstrated its intolerance
for its employees’ Section 7 rights—not to mention its
disregard for the Board. Apparently still not satisfied
that the employees got the message, the Respondent
threatened that their organizing effort was futile: even if
the “NLRB issues an order, for compliance, . . . , they
bring that order to us and we say ‘fuck your order.’” The
Respondent thereby laid bare its determination to frus-
trate any attempt by its employees to exercise their statu-
tory rights. It is clear to me that the extraordinary relief
is necessary to counter the lingering coercive effects of
this misconduct.
Certainly, the Board has issued extraordinary relief in
recent cases of comparable employer misconduct. See,
e.g., Federated Logistics & Operations, supra; Excel
Case Ready, 334 NLRB 4 (2001); Blockbuster Pavilion,
331 NLRB 1274 (2000); United States Service Indus-
tries, 319 NLRB 231 (1995), enfd. 107 F.3d 923 (D.C.
Cir. 1997). Accordingly, I would grant the special reme-
dies sought by the General Counsel.2
II. THE GENERAL COUNSEL ESTABLISHED THE UNION’S
VALID CARD MAJORITY
The Board may and should issue a remedial bargaining
order because, as I will explain, the judge erroneously
refused to count employee Casey Cook’s decisive au-
thorization card.
The relevant facts are straightforward. The Union ob-
tained 11 signed authorization cards, including employee
Cook’s card, in a bargaining unit composed of 20 em-
ployees. Copies of the signed cards were admitted in
evidence at the hearing. To authenticate the cards, the
General Counsel in some instances called the employee-
signer, e.g., employees Jerry Webb, Chris Young, and
Damon Votour. In other instances, the General Counsel
called the person who solicited the card from the signer,
e.g., employee Young to authenticate Erik Freeland’s
card and employee Votour to authenticate the cards of
employees Chris Williamson and Agostino Trolezi. The
judge accepted 10 such cards, and made an affirmative
finding that they were valid for purposes of establishing
the Union’s majority. The judge even accepted Trolezi’s
card, which was illegibly dated, based on Votour’s testi-
mony that he solicited the card before November 24. No
exceptions have been raised before the Board regarding
the authenticity of these 10 cards, or the judge’s reliance
solely on Votour’s testimony to authenticate several of
them.
Consistent with the above, the General Counsel intro-
duced employee Cook’s signed authorization card
through direct examination of employee Votour. Votour
testified that he handed the card to Cook, that he ob-
served Cook sign the card, and that Cook then returned
the card to him. Cook did not date the card, but Votour
testified that he obtained the card from Cook in about the
second or third week of November and passed it along to
the Union prior to the filing of its petition on November
21. The judge admitted Cook’s card into evidence over
the Respondent’s objection.
On cross-examination, Votour was confronted with the
affidavit of another employee, Charles Annen, in which
Annen stated that he provided an authorization card to
Cook and that he also obtained the signed card back from
Cook on November 24. Annen’s affidavit was never
admitted into evidence, but counsel for the Respondent

2 Those remedies are listed in fn. 6 of the majority opinion. I would
not require the Respondent to publish the notice in the San Francisco
Daily Journal. The General Counsel’s request that the Respondent mail
the notice to all affected employees would make it unnecessary to pub-
lish the notice.
FIRST LEGAL SUPPORT SERVICES, LLC 353
read the relevant portions to Votour. This led to the fol-
lowing exchange:

Q. The question is very simple, Mr. Votour,
could you explain why both you and Mr. Annen ap-
parently contend that you handed to and received
back, and observed the signature of Mr. Cook’s card
at two different times?
A. I can’t explain what Charles put in his affida-
vit, but as I said previously, I handed Casey the card
and watched him sign it.

Following Votour’s testimony, the General Counsel recalled
Annen. (The General Counsel had called Annen to testify
about other issues but, according to the General Counsel’s
brief, deliberately did not ask Annen about Cook’s card
because the General Counsel had concluded that Annen was
mistaken as to this portion of his affidavit.) On recall, the
General Counsel elicited from Annen testimony that he still
believed he gave a card to Cook, but that he never truly re-
called seeing Cook sign the card or receiving a signed card
from Cook. No party called Cook to testify about his card.
The judge refused to count Cook’s card. The judge
commented that, “since the critical date here is the date
of the first unfair labor practice, November 24, I would
not normally be much concerned about the Votour-
Annen discrepancy.” But the judge was concerned about
the discrepancy because, as he put it, “Cook’s authoriza-
tion card leaves much to be desired.” The judge ob-
served that the card was undated by Cook, and that Cook
did not testify. The judge also recounted the circum-
stances applicable to all the cards—they were not origi-
nals, etc.—but the judge specifically stated, “I do not
find the Cook card to be the product of [fraudulent]
abuse.” Nevertheless, the judge discredited both Votour
and Annen regarding Cook’s authorization card, and re-
fused to count it.
The General Counsel and the Union argue that the
judge erroneously relied on Annen’s affidavit to discredit
Votour’s testimony as to Cook’s authorization card. I
agree. With respect to the factual issues of whether and
when Cook signed his card, all the statements in Annen’s
affidavit were hearsay statements under Rule 801 of the
Federal Rules of Evidence3 at the time the affidavit was
used to impeach Votour’s testimony, because they were

3 Fed.R.Evid. 801(c) defines hearsay as an out of court statement
“offered in evidence to prove the truth of the matter asserted.” Subsec.
(d) removes certain out-of-court statements from the definition of hear-
say, including a prior statement of a witness where the “the declarant
testifies at the trial . . . and the statement is (A) inconsistent with the
declarant’s testimony.” Under this rule, Annen’s affidavit (hearsay)
may not be used to impeach Votour, as the judge did, but only Annen
(the declarant).
not prior inconsistent statements by Votour.4 As a result,
and irrespective of whether the Federal Rules of Evi-
dence are binding on the Board, Annen’s affidavit was of
marginal significance on the issue of Votour’s credibil-
ity. Votour, himself, effectively made this point when,
upon being confronted with Annen’s affidavit, he re-
sponded, “I can’t explain what Charles put in his affida-
vit.” The judge nevertheless treated Annen’s affidavit as
substantive evidence that contradicted and discredited
Votour’s testimony—but only as to the matter of Cook’s
authorization card. In my view, this was error.
The judge’s reliance on Annen’s affidavit is problem-
atic, moreover, because the judge failed to articulate why
Annen’s affidavit necessarily contradicted Votour’s tes-
timony regarding the solicitation of Cook’s card. In fact,
it is entirely possible that both Annen and Votour solic-
ited Cook to sign an authorization card and that Cook
actually signed two cards, a suggestion that the General
Counsel had made at the hearing. Alternatively, as the
General Counsel concluded in his investigation, Annen
could have been mistaken when he declared in his affi-
davit that he received a signed card from Cook. On re-
call, Annen confirmed this possibility. The point is that
the judge discounted an otherwise valid authorization
card based on a contradiction that may not have been a
contradiction at all.
Moreover, even if there was a contradiction, it was a
sidelight at best. There is no doubt Cook signed an au-
thorization card; again, the judge specifically ruled out
the possibility of fraud. The question of when Cook
signed the card was the only potentially relevant discrep-
ancy between Votour’s testimony and Annen’s affidavit.
But, the judge, himself, discounted the significance of
this discrepancy (and properly so) because under either
Votour’s testimony or Annen’s affidavit the card was
signed by November 24, the critical date for the Union’s
showing of majority support.
Last, the judge’s rejection of Votour’s testimony based
on this minor discrepancy is wholly inconsistent with his
acceptance of Votour’s testimony in every other respect.
The judge did not hesitate to rely on Votour’s testimony
about the cards of employees Williamson and Trolezi, or
Votour’s testimony as to his own card. The judge drew
no adverse inferences based on the fact that neither Wil-
liamson nor Trolezi testified, although such an adverse
inference is implicit in the judge’s pointed observation
regarding Cook’s absence at the hearing. Indeed, aside
from its being undated, all the additional circumstances
surrounding Cook’s card apply equally to all the other

4 Although Annen testified about soliciting Cook’s authorization
card, this testimony was presented on recall, after Annen’s affidavit
was used during the cross-examination of Votour.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354
cards found by the judge to have been properly authenti-
cated. And, although Cook’s card was undated, the
judge similarly relied on Trolezi’s illegibly dated card,
authenticated solely by Votour’s credited testimony.
While the Board does not apply the Federal Rules of
Evidence in their most stringent form, this does not mean
that the Board may, or ought to, ignore the Rules alto-
gether. This is especially true here, where hearsay state-
ments from the affidavit have been further called into
question by the declarant himself, and where the decla-
rant’s testimony at the hearing is completely consistent
with that of the “impeached” witness, who was otherwise
credited in all respects.
For these reasons, I would reverse the judge and count
Cook’s decisive card as establishing the Union’s major-
ity. Accordingly, I would grant the remedial bargaining
order that the judge, himself, found was so clearly war-
ranted, if a card majority had been established.
III. A BARGAINING ORDER IS APPROPRIATE IN ANY EVENT
Regardless of whether the General Counsel managed
to demonstrate the Union’s card majority, I would find
that a Gissel bargaining order is appropriate under the
circumstances here. To grant such an order, I would
overrule Gourmet Foods, 270 NLRB 578 (1984).
The Respondent does not dispute the judge’s finding
that the Respondent’s “course of conduct qualifies as a
category one level of misconduct.” Nor does the Re-
spondent contest the judge’s findings that its violations
were “so serious and pervasive that ordinary remedies
will not reach them,” and that its misconduct “rendered a
fair election impossible.” In these circumstances, I fully
concur in the judge’s conclusion that an “extraordinary
remedy such as a bargaining order is the only way to deal
with it.” This is no less true, in my view, even if the Un-
ion was one card short of demonstrating its majority sup-
port.
It is true that, in Gourmet Foods, supra, the Board de-
termined that it lacked the remedial authority to issue so-
called nonmajority bargaining orders. However, I would
overrule Gourmet Foods in line with the views expressed
by former Chairman Gould in Nabors Alaska Drilling,
Inc., 325 NLRB 574, 574–577 (1998) (dissenting in part)
(union came within a “hairsbreadth of a showing of ma-
jority support” before being undercut by a campaign of
severe unfair labor practices).
In Gissel, the Supreme Court did not hold that the
Board lacked the authority to issue nonmajority bargain-
ing orders. Quite to the contrary, the Court accepted the
notion that, “in ‘exceptional’ cases marked by ‘outra-
geous’ and ‘pervasive’ unfair labor practices,” Gissel,
supra, 395 U.S. at 613, the Board could issue a bargain-
ing order, “‘without need of inquiry into majority status
on the basis of cards or otherwise.’” In Nabors Alaska,
supra, former Chairman Gould urged the Board to re-
claim its discretionary authority, asserting, “the situation
here demands our revival of a potent remedy that the
Board wrongly discarded 14 years ago.” As he ex-
plained:

[I]n many areas the Board lacks effective remedies to
combat unlawful behavior by employers and unions
and therefore cannot fully serve the Act’s purposes. In
some instances, only Congress can redress this situa-
tion. In the present case, however, I see no good reason
to refrain from using a remedial tool that the Supreme
Court and several courts of appeals have suggested or
held is within the Board’s authority to use under cir-
cumstances such as these. As the preceding analysis
demonstrates, the Respondent’s unfair labor practices
are of a nature that precludes any rational expectation
that a fair election among the employees can possibly
take place in the foreseeable future. We should utilize
our remedial authority to its fullest extent here and in
future exceptional cases of outrageous and pervasive
misconduct when it is reasonable to infer that an unco-
erced employee majority would otherwise have chosen
union representation. Not to do so would only reward
this Respondent for its serious and extensive flouting of
the Act, encourage others to engage in similar viola-
tions, and thus ultimately to undermine and frustrate the
policies and purposes of the Act.

Nabors Alaska, supra at 577.
These views apply with equal, and perhaps even
greater, force here. Not only has the Respondent demon-
strated its disdain for its employees’ Section 7 rights, it
has expressly declared its intention not to comply with
the Board’s order. “The situation here demands our re-
vival of a potent remedy that the Board wrongly dis-
carded,” now 20 years ago.

Jonathan J. Seagle and Michael L. Smith, Esqs., for the General
Counsel.
Michael J. Shelley, of Los Angeles, California, and Wesley A.
McClure, of Braintree, Massachusetts, for the Respondent.
William H. Carder (Leonard, Carder, Nathan, Zuckerman,
Ross, Chin & Remar), of San Francisco, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in San Francisco, California, on January 8 and March
6–7, 2002, upon an amended complaint (the complaint) issued
on August 28, 2001 (further amended December 14, 2001), by
the Regional Director for Region 20. The complaint is based
FIRST LEGAL SUPPORT SERVICES, LLC 355
upon an unfair labor practice charge originally filed by Ware-
house Union Local 6, International Longshore and Ware-
housemen’s Union, AFL–CIO (the Union) on November 28,
2000,1 and amended several times thereafter. It alleges that
Respondent, First Legal Support Services, LLC, has violated
Section 8(a)(3) and (1) of the National Labor Relations Act (the
Act). Respondent denies the allegations. The complaint asserts
that Respondent’s misconduct is so serious and substantial that
ordinary remedial steps are insufficient and that these unfair
labor practices can be remedied only by the imposition of a
bargaining order in addition to the usual cease-and-desist and
make-whole remedies.
Issues
Respondent has decided not to defend the unfair practice al-
legations of the complaint, choosing at the conclusion of the
General Counsel’s case-in-chief to rest without presenting any
evidence. It principally asserts that the General Counsel’s evi-
dence is insufficient to warrant the finding of any unfair labor
practices. It also maintains that even if some unfair labor prac-
tices have been proven, a bargaining order is unnecessary as, in
its view, the General Counsel has failed to prove that its con-
verting employees to independent contractor status was unlaw-
ful. Furthermore, citing perceived irregularities in the Union’s
authorization cards, it contends a bargaining order is unwar-
ranted, arguing that the Union never enjoyed majority status at
material times.
This case concerns Respondent’s reaction to the Union’s or-
ganizing drive which began in November, covers three man-
agement meetings with employees, and scrutinizes two dis-
charges, and an alleged refusal to hire. During all three of the
meetings conducted by management, the principal topic was the
conversion of its bicycle messengers from employee to inde-
pendent contractor status. The General Counsel and the Charg-
ing Party assert that the conversion was nothing but a sham.
The complaint also recites a variety of 8(a)(1) conduct aimed
at the employees. These include threats to discharge, threats to
close the business, and promises and/or grants of benefits, all to
coerce them to abandon their interest in the Union and to accept
their conversion to independent contractor status.
All parties have filed briefs which have been carefully con-
sidered. Based upon the entire record, including my observa-
tion of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation having offices in San
Francisco, Los Angeles, Sacramento, Santa Ana, and Riverside.
It is in the business of providing courier services and court
records research for law firms and other customers. It admits
that during the calendar year ending December 31, 1999, it
provided such services valued in excess of $50,000 directly to
customers located outside California. It further admits that it is,
or has been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Lastly, it ad-

1 All dates are in the year 2000 unless otherwise indicated.
mits that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
This complaint is directed at Respondent’s San Francisco
operation. It has an office located at 8th and Howard Streets.
From that location it directs its field employees in the perform-
ance of their daily tasks. These individuals provide legal sup-
port services to law firms in six Bay Area Counties and their
respective county seats, San Francisco, Santa Clara (San Jose),
San Mateo, Alameda (Oakland), Marin (San Rafael), and Con-
tra Costa (Martinez).2
In the third week of November 2000, Respondent employed
20 field employees who worked out of the San Francisco office.
Respondent characterizes them as bicycle messengers, drivers,
and court researchers. In large part, these three classifications
are interchangeable although some bicycle messengers are not
experienced in court research. However, the two San Francisco
court researchers during that time were also bicycle messen-
gers. All three of these classifications worked closely with one
another, passing and picking up deliveries to and from each
other both in the field and at the office. All three are subject to
the radio directives of the dispatcher, Romana Macalinao. The
drivers, having a longer range than the bicycle messengers,
made deliveries outside the city of San Francisco, driving to
nearby counties to perform their deliveries. These individuals
did court research in the outlying county seats and also per-
formed some process serving. When doing research, the two3
court researchers took directions from the research department
supervisor.4 Regional Manager David Tait5 regards them as
part of the office staff. Clearly they are not office staff, as they
perform their duties in the field.
In addition, Respondent employs individuals in a capacity
known as “in-house.” Persons performing this task are officed
in a specific law firm and remain at that location throughout the
day. These individuals, essentially coordinators, receive as-
signments directly from the law firm’s legal secretaries, and in
turn contact Respondent’s office by computer message or tele-
phone. The bicycle messenger then picks up or delivers items
to him or her. In November 2000, only one law firm was being
served in this fashion, Lillick & Charles, a large corporate prac-
tice located in the Embarcadero district. The in-house at Lillick
& Charles at that time was Dennis Kittelson, who was filling in
for the regular in-house, Meredith Crawford. Crawford had
been temporarily assigned to administrative duties at the 8th

2 The seventh Bay Area County, Solano (Fairfield), was not men-
tioned, perhaps being served by Respondent’s Sacramento office.
Solano County’s largest city, Vallejo, sits on the northeast end of San
Francisco Bay, just a freeway commute to Oakland/San Francisco, but
Fairfield is much closer to Sacramento.
3 Usually two in San Francisco, according to Tait, but the record
shows that there were three, Sam Roberts, Charles Annen, and Damon
Votour who performed the task in San Francisco. All rode bicycles.
4 The court research supervisor job during this time seems to have
been unfilled although Irene Livai, may have been performing its tasks.
At one point, Horacio Dimanlig also performed that duty.
5 Tait’s region is every office in California except Los Angeles.
Therefore, he has oversight, in northern California of San Francisco and
Sacramento, and in southern California of Riverside and Santa Ana.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356
and Howard headquarters. She did not return to Lillick &
Charles until early 2001.
In late November 2000, the office manager for San Francisco
was Brian Malouf.6 He was later succeeded in mid-2001 by
Andy Lazalde. Lazalde, originally hired as the process server
manager, says that in November 2000 he was the assistant of-
fice manager.
The San Francisco Bike Messengers Association (SFBMA)
is a loose organization of bicycle messengers. Apparently one
can be a member simply by being a bicycle messenger; some
pay dues, many do not. One of Respondent’s bicycle messen-
gers, Damon Votour, was or had been, the president of that
association. A few years earlier, the Union, which had an of-
fice on 9th Street, not far from Respondent’s office, had pro-
vided the SFBMA with office space and a telephone, for the
apparent purpose of utilizing that group as an organizing step-
pingstone. By mid-November the Union had succeeded in
obtaining sufficient authorization cards to support a petition for
a representation election at one of Respondent’s competitors,
Express Network, and it filed its first petition with the Regional
Office on November 16.
Tait had previously been Express Network’s regional man-
ager covering San Francisco and other locations. Although Tait
denied it, it is clear that he was aware of the organizing at that
company because of the small number of employers in the in-
dustry and his close connection to Express Network. Indeed, at
the November 25 meeting, he is quoted as admitting that one of
the reasons Respondent decided to convert its messengers to
independent contractors was because it was afraid of the orga-
nizing drives involving both itself and Express Network.
During the first part of November, union official Fred Pecker
gave a number of union authorization cards to Votour. Votour
passed several out and on November 10, bike messenger Chris
Young obtained the signature of Fred Harris, also a biker.
Young signed his own card on November 15 and biker Jeff
Webb signed on November 16.
Almost immediately after the Express Network petition was
filed, Respondent’s employees began hearing from the office
that it was going to convert them into independent contractors.
Already spurred by self-interest, other employees responded to
that rumor by signing more authorization cards. Eventually,
Young returned a number of cards to Votour and he in turn
gave them to union organizer Jerry Martin.
Martin filed an election petition with the Regional Office on
November 21 (Case 20–RC–17636), seeking a unit of Respon-
dent’s bike messengers and drivers. He did not, however, sup-
port the petition with the original cards, using photocopies in-
stead. Counsel for the General Counsel have stated that during
the time in question the Regional Office was accepting photo-
copies in lieu of originals. They now report that the originals
from which the photocopies were made can no longer be found.
The copies in evidence are Martin’s file copies which he had
made sometime earlier, perhaps at the same time he made the
photocopies to support the petition. Curiously, the photocopies

6 At some point, not shown in the record, Malouf became the assis-
tant regional manager. In that capacity he executed an affidavit which
is in evidence.
used to support the petition were not offered in evidence either,
although if handled properly they would have been date-
stamped, assuming that the Regional Office was following
standard procedure.
One of the cards, that of Casey Cook, is undated and another,
that of Agostino Trolezi has a marked-over month. In addition,
there is conflicting evidence regarding who solicited the Cook
card and when. Votour says he solicited it on November 21;
Annen’s affidavit says he solicited it on November 24, giving
some credible detail about the circumstances. Annen testified
that he had uncertainties about the accuracy of what he reported
in his affidavit, but acknowledges that he did not register them
with the Board agent. He now says he believes the affidavit to
be mistaken. Cook was not called and we do not have the
benefit of his recollection.
Martin testified that he believed he had given the original au-
thorization cards to the Board agent, but was not entirely cer-
tain. Two messengers, Charles Annen and Sam Roberts testi-
fied that when the Board agent interviewed them in April 2001,
he showed them the originals of their cards and asked about the
circumstances of their signing. As a result, counsel for the Gen-
eral Counsel have stated for the record that the Board agent has
no recollection about the original cards nor were they found in
the Regional Office safe. The intensity and the length of the
search has not been otherwise described for the record.
Nonetheless, because a witness authenticated each of the
eleven photocopied cards and asserted that they were accurate
copies of the original, I received them in evidence, being obli-
gated to do so by Fed.R.Evid. 1003. This is not to say that I do
not have any reservations about the weight to be given them.
This issue will be discussed in more detail, infra.
A. Votour and Washington are Discharged and Rehired
Damon Votour testified that on November 24 (a Friday) that
he had a conversation with Andy Lazalde, the assistant office
manager in the office. According to Votour, Lazalde presented
him with a choice, either sign an independent contractor agree-
ment, or be fired. He testified: “He said that he was told that if
we didn’t switch, sign the papers to become an independent
contractor, that my services were no longer needed, and I said,
‘[D]oes that mean I’m fired?’ and he said, ‘[Y]es.’”
Votour then testified that on November 26, about 10 a.m., he
had another conversation with Lazalde. Since November 26
was a Sunday, I believe Votour to be mistaken about the date,
as the conversation no doubt occurred on Monday. Neverthe-
less, the two conversations straddled the November 25 meeting
described below. According to Votour, the following occurred
during his second conversation with Lazalde:

WITNESS VOTOUR: [Lazalde] told me that he would
hire me back, but it would have to be under pretense that I
was an independent contractor, and that I would have to
sign the papers, and that he never really wanted to fire me
to begin with.
Q. And did you then sign the independent contractor
papers?
A. Yes, I did. But as I put at the top of it, “signed un-
der duress and protest.”

FIRST LEGAL SUPPORT SERVICES, LLC 357
Votour then returned to work and has continued to work as a
bike messenger since that time. Lazalde did not deny Votour’s
description of what occurred.
Kai Washington was another bicycle messenger. He signed
an authorization card on November 17. He recalls receiving a
radio page or message advising him of a meeting concerning
the National Independent Contractors Association (NICA) and
the independent contractor issue. He attended the November
25 meeting and says that shortly thereafter7 he had a conversa-
tion with Lazalde in which he told Lazalde he was not going to
sign the NICA agreement because he understood from organ-
izer Jerry Martin that the entire concept of converting employ-
ees to independent contractors was illegal. He testified:
“[Lazalde] basically told me that he would have to terminate
my employment, and he asked for my radio, and I handed it to
him and I left.”
A few days later Washington, accompanied by Martin,
someone he called “Punk Rock Jim,” and possibly Chris
Young, returned to the office for his paycheck. Martin was
barred from coming into the office.
More than a week later, after discussing the situation with
Martin, Washington called the office to see if he could get his
job back. Lazalde agreed that he could return if he signed the
NICA agreement. Washington told Lazalde he would, but ex-
plained that he could not return to work right away, as he had
suffered some burns while working on his car’s radiator.
Lazalde told him that was okay and he could return when he
was ready. When the burns had healed sufficiently, about De-
cember 11, he returned to the office with a doctor’s slip and
attempted to sign the NICA contract under protest. Dispatcher
Romana Macalinao told him that was not acceptable. As a
result he signed it without any written reservation. He worked
for about 3 days, until December 14, when Macalinao told him
he was being discharged because of his attendance record.
The attendance issue had come up much earlier. Washington
lived in Oakland and commuted from that city to San Francisco
via the rapid transit system, BART. BART prohibited passen-
gers from bringing bicycles aboard during commute hours. As
a result, Respondent had earlier reached an accommodation
with him. Washington tried to explain this to Lazalde, but
Lazalde would not change the decision. Washington pursued
the matter a little further and Lazalde told him, “[T]he main—
the real reason was because Dave Tait specifically wanted—
wanted to get rid of somebody, they were looking to get rid of
somebody, and that it was because I didn’t sign the NICA con-
tract in time. And he said that he tried to actually salvage my
job for a while, and Dave Tait actually told him to terminate my
employment weeks before that . . . .” This testimony stands
unrebutted.
Washington has not worked for Respondent since that time.
B. The Meetings of November 25 and 29
According to bike messenger Jeff Webb, about 1-1/2 weeks
after he signed his authorization card on November 16, he, like

7 Washington testified that his conversation with Lazalde occurred
the day after the NICA meeting. Since that was on Saturday, Novem-
ber 25, I believe him to be mistaken. More likely, this conversation
occurred on Monday, November 27.
Washington, received a pager message advising him of a com-
pany called employee meeting to discuss the independent con-
tractor issue. The meeting was actually held on Saturday, No-
vember 25. Thus, the pager message which he received proba-
bly occurred within a day or so after the Union’s election peti-
tion was filed on November 21.
Webb surreptitiously tape-recorded most of the meeting, al-
though the meeting continued after the tape ran out. Webb
authenticated both the tape and a typescript of the tape. I have
reviewed the typescript, comparing it with the audio, and have
determined it to be reasonably accurate. Both are in evidence;
see General Counsel’s Exhibits 5 and 6.
Tait announced that Respondent had decided that its em-
ployees would join the National Independent Contractor
Agency (sic). He said that Respondent’s owner had determined
that his only alternative was to go with NICA, which could
supply substitute insurance which would allow Respondent to
remain in business. He painted a picture describing the dire
consequences an accident might have, not only on the messen-
gers, but on the Company as a whole if a large judgment were
entered against it. He concluded by saying, “I find myself be-
ing here for another 20 years, this is where I’m gonna our raise
my children, pay my mortgage. I want to ensure that I’m going
to have a job next year, 5 years, and 10 years down the road.
The only way I can do it, the way I see it, is to convert to
NICA. I don’t have a choice. That is the way the ownership
have decided to handle their insurance.”
The typescript also shows that Tait told the employees that
Respondent’s owner, Elisha Gilboa, had determined that he
could no longer afford to pay for workers’ compensation insur-
ance. He asserted that workers’ compensation insurance was so
costly that it didn’t leave Respondent with a sufficient profit to
remain in the industry.
He then introduced a NICA representative, who on this re-
cord was only named “Bob.” The NICA representative sought
to explain what the conversion to independent contractor status
would mean to each of them and explained the benefits of
NICA membership. He embarked upon an explanation of what
NICA was, how it operated, and what benefits it offered to its
members. He explained that for a weekly fee of $19.75, NICA
offered its independent contractors occupational/accident insur-
ance coverage.8 It also would serve as a payroll agency, di-
rectly paying the messengers biweekly based upon Respon-
dent’s contributions to NICA’s payroll system. Membership
also allowed for assistance with each member’s State and Fed-
eral tax returns, allowing for a withholding to make the quar-
terly payments to the tax agencies. It also offered assistance in
preparing the annual tax returns.
Toward the end of the meeting, biker/court researcher Chris
Young asked Tait if the employees were being required to con-
vert to independent contractors because the Company was
afraid of the union drive. He also asked Tait if the conversion
was due to the Company’s fear of the organizing drive at the

8 Tait announced that Respondent would offset the weekly fee by a
$100 increase in monthly remuneration for all of the bike messengers.
The drivers were to be handled somewhat differently, because the pro-
gram was said to be slightly different for them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
competitor, Express Network. Young testified that Tait an-
swered, “[Y]es,” to both questions. Webb, Votour, and Roberts
all corroborate him. By that time Webb’s tape had run out.
Tait never denied the accuracy of their testimony.
A second meeting was conducted on Thursday, November
29. Webb surreptitiously tape recorded it as well. The meeting
was conducted by Elisha Gilboa and he introduced Tom
McGrath as the owner of NICA. Gilboa amplified what Tait
had said before. He repeated that insurance was the primary
reason for the conversion. He also tried to persuade the couri-
ers that conversion was to their advantage, claiming that in
many cities he had couriers who worked for more than one
company, implying that the same flexibility would be available
and beneficial to the San Francisco staff. There was a short
debate regarding whether that would be allowed, or whether
what Gilboa was saying was inconsistent with what Tait had
said earlier. It soon became clear that Respondent wanted the
messengers to be available to Respondent to the exclusion of
outside work; it would continue to pay them showup time to
force them to be on hand when Respondent needed them. Ac-
cording to Gilboa, no one would lose any pay in this change-
over.
At one point, an employee began a discussion concerning
whether they could sign the independent contractor agreement
with language of reservation, such as “under duress” or “under
protest.” The employee explained that they had been given no
time to make the decision. Gilboa replied that he did not want
them to sign under duress, going on to say, “No, what I would
really like . . . my colleagues is [sic] to explain to [you] and
hopefully be able to convince you. If I don’t accomplish that,
then you can make a decision or you can tell me, ‘You know it
did not convince me, I don’t buy what you’re selling me. I
don’t care [for] what you want. But I will sign it anyway’ or
you can tell me, ‘No, I don’t want to sign.’ And then you will
go and work for a different company . . . then it’s okay.” An
employee responded: “So, we’ll get fired if we don’t sign it, is
[that] what you’re saying?” Gilboa replied: “Yes.”
Another employee9 then interjected, “So we’ll get fired if we
don’t sign it, well, I already got fired once this week. Again,
one week later here I am again. That’s a shame.” Gilboa then
went on to say, “It’s on the same issue. We need for our peace
of mind. I need to make sure that I can provide insurances.
Right is right. If something going to happen to you, and you’re
not part of NICA in a legally [sic] the way. Unfortunately, we
don’t have insurance to cover you. It’s a matter of life or death
for [the San Francisco] office.”
C. Christopher Atkinson
Christopher Atkinson was a bicycle messenger and process
server who had worked for Respondent during 1999 and early
2000. While with Respondent he had performed process serv-
ing, court filings, and performed court research. In January
2001, in the course of his subsequent employment with another
firm, he had run into Meredith Crawford as she served as the
in-house at Lillick & Charles. They had previously worked

9 It seems likely that this employee was Votour, as his dis-
charge/rehire followed the pattern described here.
together both at another firm and for Respondent. She had
been his boss at the other firm and was very familiar with his
capabilities. She told him that she thought he would be the
perfect person to replace her at Lillick & Charles, as she ex-
pected to be transferred to another law firm. They had several
telephone conversations about this subject and on January 26,
2001, he telephoned her in a continuation of that discussion.
During the call Crawford told Atkinson that the Company
wanted him and asked how much money he would be willing to
take. They haggled. He jokingly said that he wanted $30 an
hour, to which she responded that she didn’t know about that
much, but half that would be fair, $15 an hour. Eventually,
they settled on a salary of $2300 per month plus a percentage of
the gross of the Lillick business.
She told him that he would need to dress well and train for a
week on the computers at the office and another week at Lil-
lick. She told him he was to report to the office at 9 a.m.,
Monday, January 29, 2001. He agreed.
On that Monday, he reported about 15 minutes early. He
spoke first to Romana Macalinao who told him to wait. About
an hour later, David Tait came out and asked him to wait some
more. Eventually, Tait told him that they were extremely busy
and he did not have anybody to help train him. Tait asked him
to come back tomorrow or the next day, saying, “We want to
get you started the next day or two, but we can’t—we just don’t
have enough extra people to get you on a computer right now.”
That same morning, January 29, 2001, an article had ap-
peared in the San Francisco Daily Journal, concerning the or-
ganizing drive at Express Network. It suggested that union
organizing may have caused Express Network to have gone out
of business a week earlier. In addition, the article included a
photograph of Maria Atkinson, Christopher’s wife. Also a bike
messenger, she is shown posing on her bicycle. The cutline
under the photograph says that she had been spat upon by the
Express Network dispatcher. The story recites employee
claims of harassment because of their union organizing efforts
and further observes that Maria Atkinson had reported the spit-
ting incident to the NLRB.
Respondent did not call Atkinson back to complete the hiring
process. Atkinson heard nothing further until he called Craw-
ford about 3 days later. He testified that Crawford “sounded
like she was very angry, and she said that they did not want to
hire me because of our—they thought that I was involved with
the Union. They saw my wife’s picture in the Journal, and they
didn’t want to get involved with anybody that had union ties.”
Atkinson responded that he didn’t have any union ties and that
his wife had just happened to get her picture taken.10 He as-
serted that the article didn’t have anything to do with him at all.
His appeal was to no avail. He realized then that he had been
dismissed on the very day that he had appeared for work.
Tait denied any knowledge of union organizing elsewhere in
the industry in San Francisco. He also denied any knowledge
of stories on that subject printed in any local newspapers. His
denial is rejected as entirely improbable. Furthermore, he was

10 Christopher and Maria Atkinson had been married about a year at
the time the article was published. It is reasonable to infer that Re-
spondent, through Crawford, was aware of the marriage.
FIRST LEGAL SUPPORT SERVICES, LLC 359
most unimpressive on the witness stand with regard to this
matter. His presentation was clipped and defensive. I find that
he not only was aware of the organizing at Express Network, I
also find he had seen the Daily Journal article on the morning it
was published. That newspaper is a mainstay for the legal pro-
fession in the Bay Area. Indeed, I further find it was that article
which caused Tait to stop dealing with Chris Atkinson that day.
D. The Meeting of April 19, 2001
Both Tait and the members of the union organizing commit-
tee had their own reasons for wanting a meeting in mid-April
2001. Tait had heard that some employees were unhappy with
the NICA situation and were considering a strike. The organiz-
ing committee was concerned about the recent discharge of
bike messenger Sandro Mascarenhas. As a result, about 5:30
p.m. on Thursday, April 19, 2000, Tait conducted a staff meet-
ing. There was some misunderstanding concerning the purpose
of the meeting and who the attendees were supposed to be.
Members of the union organizing committee were present,
thinking they were going to be discussing the Mascarenhas
discharge and they were initially concerned that nonmembers
of their committee were also present.
Most of the meeting was surreptitiously recorded by court
researcher Charles Annen on a voice-activated microcassette
recorder. Both the cassette and a typescript are in evidence as
General Counsel’s Exhibits 13 and 14. Shortly after the meet-
ing, Annen gave the cassette and the recorder to union organ-
izer Jerry Martin. Shortly afterwards, Martin began listening to
it while sitting in his personal vehicle. He was interrupted by a
cellular telephone call. Unfamiliar with the operation of the
device, he mistakenly set it to “record,” instead of turning it off.
As a result, a portion of the meeting was recorded over by the
cellular conversation. That portion also appears in the type-
script. It is readily separable from the meeting itself.
As can be seen from the typescript, beginning on the bottom
of page 2, Tait has some issues with the employees. He says he
didn’t want to call the meeting, but had heard through the
grapevine that he had a disgruntled labor force. He said that
made him “nervous.” He observed that he knew people were
still having issues with the NICA independent contractor situa-
tion, but said there was nothing he could do about it. He did
not want the “meeting to go down that road,” observing that the
matter was in litigation. He said, “[I]t’s in the courts, nothing
you say to me or I say to you, is going to change anything
‘cause my owner is going to stand hard where he is regardless.
This whole company can shut down tomorrow and he is not
going to change his fuckin’ mind.’” He asserted that further
discussion of the topic would be a waste of time.
He then said he believed some other issue was bothering
them. “What bothered me, from a management point of view,
was that my labor force was going to strike without calling me
up and saying, ‘Hey, Dave, we got an issue, do you feel like
listening to us or should we just tell you to fuck off and strike.’
. . . You give me that phone call, I’m going to respond. I’m
going to sit down and I’m gonna give you that time . . . . But
I’ll tell you that I got upset enough to the point, if my labor
force ever wants to strike without trying to settle the differences
with me first and giving me that respect, you might as well
consider it your last day of employment. I’m not going to put
up with that shit. . . . I wouldn’t treat you that way and I don’t
expect you to treat me that way.”
He continued in a similar fashion:

Now [if] we have a meeting about something that is your con-
cern and we can’t settle it and you feel adamant and you feel
strong and you still decide to strike, there may be a soft part in
my heart, if I see any validity toward your concerns. But if I
feel that you’re just creating problems and you’re a burden to
me, the inevitable is going to happen. We are not a union or-
ganized company. We are not. I know some of you want, or
all of the want it to be, but the bottom line, we are not. The
word strike amazes me because you can’t strike if you aren’t
the union. [Interrupted by an employee who disagrees.]
Well, you can if you want but I mean . . . . Yeah, I mean you
can call it a strike. I mean you can call it anything you want.
But the bottom line is I will terminate anybody and everybody
who strikes. I’m 100 percent prepared to do so. I’ve got three
companies in the city, willing to back me up. Do my work,
yes, bicycle messengers included, already set up. I got five
drivers coming in tomorrow from one end. Five drivers com-
ing from another end. I could fly up a truckload of messen-
gers . . . . You guys are not going to disrupt my business. It’s
not going to happen. I’m raising a family, I’m paying a mort-
gage, I got car payment[s]. So do ten or twelve other people
in this office. I’m not going to allow somebody to fuck that
up, without giving me the opportunity to resolve the issues
verbally in the meeting first. So I was upset, I have aired it to
you guys, you understand why I got upset? The floor is
yours, why the hell are we striking?

At this point there was some commentary from the floor that
related to the discharge of Mascarenhas and whether it was
appropriate to have noncommittee members present. Eventu-
ally, the conversation turned to Tait’s claim that he had never
heard of the union organizing committee until the day before
when he had been asked to go down to the union hall. When an
employee asked what was wrong with that, Tait replied,
“What’s wrong with that? I’ll tell you the same thing that’s
wrong with you asking my employees or labor force or man-
agement to leave this room. This is my company. I run it.
There is no Union. I am the last say in this office.” An em-
ployee then asked if they were being paid for their time at the
meeting, cajoling Tait to “meet us halfway.” Tait replied,
“[M]eeting you halfway is giving you the opportunity to sal-
vage your job right now in this meeting. Because you can walk
out this door. You guys can all unite together and strike. To-
morrow, next day, next week, next month, bottom line, what
you created, a jobless day. That is what you create. Every
single one of you.” An employee asked if Tait had just threat-
ened to fire them and he responded, “Absolutely, absolutely.”
Tait then tried to turn the matter in a different direction ask-
ing an employee (presumably Charles Annen) if he had threat-
ened to strike. The employee responds that he had not and
another employee asserts that he didn’t even recollect anybody
ever using that word. A third employee said, “We didn’t even
use that word. What are you talking about?”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360
Tait then claimed to have a list of eleven people in his back
pocket and said, “[Y]ou guys are harassing them.” That was
disputed vociferously. When challenged, Tait refused to reveal
who the employees were, saying it was probably members of
the committee who were committing the acts he was hearing
about. When told that the entire committee was there in the
room, he tried to say that it was some other committee. (“Not
necessarily your committee. Whatever committee.”) Tait went
on:

I don’t know how the union works. They tell me I’m on the
organizing committee of the Union and I don’t know all . . .
and the technical terms, if we wanted to throw them out right
now we could use, IC, labor force, we could use employees,
we can use fire, we can use terminate contract, . . . . You[‘re]
taking this to [a] level that it doesn’t exist at. This is not a un-
ion company. This is an “at will” company that hires em-
ployees by the California state law “at will” and subcontracts
to independent contractors. That is what this company does.
If an independent contractor purposely prevents, or does
something malicious to affect my business during the day,
that person will no longer get jobs from us. That is why San-
dro was fired.

Tait then asserted that Mascarenhas had been fired because
he turned down work because it didn’t pay enough. He con-
tended Mascarenhas had attempted to make his own schedule.
Tait repeated that he minded being threatened with a strike
without being asked for his input. The employees responded
once again that they had not ever threatened to strike. Tait
claimed it was so well known he had heard about it on airplane
500 miles away. He then asserted that Jerry Martin had told
him that, momentarily misspeaking and using the name of a
celebrity, daring the employees to call Martin on the phone,
asserting that Martin had told him the day before that a strike
was imminent.
The meeting started to break down over accusations of lying,
but an employee, using a speaker phone, was almost immedi-
ately able to reach Martin. Martin’s voice is heard saying that
he had told Tait that a “work action” was imminent, but had
never use the word strike. The phone conversation was then
terminated. Tait accused Martin of changing his words. There
was a short disagreement over what the phrase “work action”
meant and Tait accused the group of “playing a game.”
The conversation then became a little more civil and turned
to Mascarenhas’s situation again. Once more, Tait addressed
employees expressing the right of independence in the way they
chose to work. Alleging that refusals to work were disrespect-
ful, he said, “This is a professional place of work. If you come
in and tell us that you are going to work, we expect you to
work. Not what you want to do, but what we want you to do.”
He repeated that there was harassment coming from the un-
ion people and that he was attempting to protect others from
that harassment. “As long as it’s the Union versus Manage-
ment and anybody who sides here or sides there, is an outcast
one way or the other. I won’t have that.” This resulted in a
debate between Tait and Annen concerning whether the discus-
sion of unionizing qualifies as harassment. Tait then said that
his primary interest was to protect the Company and that was
the reason he had made his arrangements with other companies
to obtain cover in case of a strike. He concluded: “The owner
[Gilboa] . . . if the courts came down, the owner would tear the
fuckin’ door down.”
Tait swung his commentary to independent contractor status.
He said, “[Gilboa’s] company does business this way [using
independent contractors] in four states, nineteen other offices;
it’s all explained in the court literature. It’s all backed up by
case precedent. This is the way we do business. We are not
going to lose the fuckin— hearing, regardless. At that time that
you guys were asked, correction, you were employed, asked to
be [ ] independent contractors. What did the president of the
company say? . . . if you don’t want to work here, I will pay
you until you go and find another job.” Some employees ar-
gued that Gilboa had not said that. Tait maintained that he had,
but went on to say he would “supersede” what Gilboa had said,
offering anyone who had been employed prior to the NICA
changeover, 2 weeks’ pay to go find another job. He even of-
fered to call competitors on behalf of anyone who took him up.
He then pointed to the three leaders and repeated the offer. He
continued:

We are not forcing you to work at this company. I will do
everything I can, that will make it as easy as possible. I don’t
have to set up that account with Road Rage [presumably one
of the deductions under the NICA contract]. I don’t have to
do that. Its a fuckin pain in the ass to monitor that and take it
out of you guys’ check. I do it as a convenience for you guys.
I don’t have to pay the wages I pay. I still can get employees
in here. I don’t have to be . . . I don’t even have to have this
fuckin meeting with you guys, I can just let you guys do
whatever . . . I can just fire everybody. . . .

Someone urged Tait to calm down. He went on: “I just
want to have a happy work environment. I know the labor
issue with NICA is your huge issue. We know it’s in the
courts. God bless the courts if they can somehow get you guys
back in here, the fuckin– Union comes in here and the doors
stay open. God, let’s go forward . . . I don’t give a fuck. That
is the way the owner runs the business. It don’t matter how
much pressure you put on me or the industry, people never
change. He will shut the door before he changes.”
An employee asserted that Gilboa was “absolutely scared” of
the International Longshoremen and Warehousemen’s Union
and Tait responded, “Of course he is.” The employee then said
the ILWU was an honorable outfit. Tait responded that he had
his marching orders and he couldn’t do anything about it.
There follows a short discussion concerning Mascarenhas and
his perceived unwillingness to recognize what a good deal he
had. At that point the tape is interrupted by the previously
mentioned cell call received by Martin.
When the tape again takes up the meeting, Tait is discussing
the accident insurance under NICA and the deductions con-
nected to that. They also speak of some other matters related to
the NICA agreement. Eventually, Tait said that the employees
could pursue it,

[b]ut let’s be sure that we do, like Chris says, conduct a busi-
ness properly so that we have a business to work for. And
God forbid, that the courts end up closing us down because
FIRST LEGAL SUPPORT SERVICES, LLC 361
my owner is pigheaded. The courts are pigheaded . . . . It will
end up in another worst-case scenario or even sooner. Once
the NLRB thing winds up, let’s say two out of every three
cases that go to the NLRB sides with the Union. Gee, I won-
der why . . . then [the] NLRB issues an order, for compliance,
for union organization, blah, blah. That order is not enforce-
able in California. Not enforceable. Oh, they bring that order
to us and we say “fuck your order” and then they have to file
their petition and their judgment. Oh yeah, ask Jerry [Martin].
They might have [to] take their petition into federal court.
Federal court overturns one of every three NLRB hearings—
because the NLRB is obviously, prejudice[d] towards labor
issues. The court is not a prejudicial entity. It hears both
sides of the story and one out of every three NLRB [orders]
gets turned over in federal court. And that is where we are
going to end up. And that goes on for years. So we’re a cou-
ple of years from here. We’re months with the NLRB, but I
got news for you, it ain’t over there.

The meeting ends with Tait again making the 2 weeks’ pay
offer if anyone who had been forced to become an independent
contractor wished to quit. He assured everyone that he was a
good guy and would not mistreat anybody.
III. ANALYSIS AND CONCLUSIONS
A. The Independent Contractor Conversion
Section 2(3) of the Act is the starting place for analyzing the
facts in this case. It states:

The term “employee” shall include any employee, and shall
not be limited to the employees of a particular employer,
unless the Act [this subchapter] explicitly states otherwise,
and shall include any individual whose work has ceased as a
consequence of, or in connection with, any current labor dis-
pute or because of any unfair labor practice, and who has not
obtained any other regular and substantially equivalent em-
ployment, but shall not include any individual employed as
an agricultural laborer, or in the domestic service of any fam-
ily or person at his home, or any individual employed by his
parent or spouse, or any individual having the status of an in-
dependent contractor, or any individual employed as a super-
visor, or any individual employed by an employer subject to
the Railway Labor Act [45 U.S.C. § 151 et seq.], as amended
from time to time, or by any other person who is not an em-
ployer as herein defined. [Emphasis added.]

Therefore, the Act provides its protections to employees as
broadly defined but not to independent contractors.
Respondent essentially concedes that prior to late November
the bicycle messengers, drivers, and court researchers were
employees within the meaning of Section 2(3) of the Act and
not independent contractors. Although Respondent’s practice
before that time was not consistent with respect to the manner
in which they were remunerated, some being hourly and some
being salaried, none was regarded as an independent contractor.
At that time all of them reported in some manner to the dis-
patcher, although court researchers and the ones who had been
assigned to serve process also took directives from the “super-
visor” in charge of that task. Nevertheless, all assignments
went through the dispatcher. Each of the field employees had
been issued a company-supplied radio and were in constant
communication with the dispatcher. When serving as bicycle
messengers, they owned their own bicycles, each of which was
valued in the $500 range. The record is silent concerning mes-
sengers who served as drivers and whether they operated com-
pany-owned vehicles or vehicles which they themselves owned.
In the beginning of the day most of them reported to the San
Francisco office for their initial assignments and to pick up
their radio, although on occasion messengers were allowed to
keep the radio overnight and report in for work by a radio mes-
sage.
The evidence is uniform from each of the bike messengers,
court researchers and drivers that once they had signed the
NICA independent contractor agreement, the only things which
changed were the paperwork requirements. On a daily basis,
nothing changed. They reported to work at the usual time,
obtained their radios and began to work. Respondent still
owned the radios and the bike messengers continued to own
their own bicycles. They continued to take their daily assign-
ments from the dispatcher, Romana Macalinao. The only no-
ticeable change was the manner in which they were paid. They
no longer received paychecks from Respondent, instead receiv-
ing them from NICA. Moreover, those paychecks no longer
showed deductions for State and Federal income tax, social
security or the California State fund deductions. However, the
NICA paychecks did deduct a fee for NICA membership and
the substitute occupational/accident insurance.
Furthermore, as demonstrated by Respondent’s treatment of
Mascarenhas, it is clear that individuals who signed the inde-
pendent contractor agreement were not free to determine their
daily tasks. In fact, Respondent wanted exclusive access to
them, insisting that they remain available even during slack
periods, offering showup time payments for that purpose. As
Tait said, Mascarenhas was discharged for attempting to go his
own way.
It is clear that none of the so-called independent contractors
was engaged in a distinct occupation or business. Certainly
none of them thought that they were. They did not make a
significant capital investment nor did they expect to make a
profit on that investment. For the most part the only monetary
outlay made by the messengers was the purchase of their bicy-
cle. But they had done that as employees, well before the con-
version. They did not have a real opportunity to solicit busi-
ness on their own and did not have the time to carry it out even
if they were able to generate their own customers.
In NLRB v. United Insurance Co., 390 U.S. 254, 256 (1968),
the Supreme Court mandated the Board to utilize the common
law right-of-control test to determine whether specific indi-
viduals were, under Section 2(3) of the Act, employees or inde-
pendent contractors. Much of the determination can be made
by reference to the Restatement (Second) of Agency § 220
(1958). The text of § 220 is set forth below in the footnote.11

11 § 220. Definition of Servant.
(1) A servant is a person employed to perform services in the
affairs of another and who with respect to the physical conduct in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 362
Rather clearly, none of the messengers is in business for
himself. The core of Respondent’s business is providing mes-
senger service to its customers. It can only do this by coordi-
nating its various staff members’ duties from a central location.
The messengers themselves have no capability of performing
that coordinating task. It must be done centrally. Thus, the
messengers have no control over the manner and means in
which they perform their duties. Only Respondent has that
power. Furthermore, it is Respondent which is in the business
of making a profit. None of the messengers has a realistic op-
portunity to do so, certainly not during the time frame that Re-
spondent insists that they be available to it. Essentially, the
work of the messengers, whether it be delivery or court re-
search, is work which is “integral to and virtually coextensive
with the Company’s operations.” Adderley Industries, 322
NLRB 1016, 1022 (1997). To the extent that the NICA agree-
ments suggest that messengers are free to perform other duties
or work for other messenger services, that term is illusory at
best.
Without regard to whether the conversion was discrimina-
tory, it is clear that no conversion ever occurred. Under the
common law test required by United Insurance, supra, no inde-
pendent contractor relationship was ever created. These indi-
viduals were and are employees, not independent contractors. I
therefore agree with the contentions of the General Counsel and
the Charging Party that the paper transactions purporting to
convert the employees to the status of independent contractors
was, and is, a sham.
B. The Conversion to Independent Contractor Status
was Discriminatory
Section 8(a)(3) of the Act makes it an unfair labor practice to
discriminate “in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage
membership in any labor organization. . . .” Furthermore, Sec-
tion 8(a)(1) prohibits employers from interfering with, restrain-

the performance of the services is subject to the other’s control or
right to control.
(2) In determining whether one acting for another is a servant
or an independent contractor, the following matters of fact, among
others, are considered:
(a) the extent of control which, by the agreement, the
master exercise over the details of the work;
(b) whether or not the one employed is engaged in a dis-
tinct occupation or business;
(c) the kind of occupation, with reference to whether, in
the locality, the work is usually done under the direction of
the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the in-
strumentalities, tools, and place of work for the person do-
ing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the
job;
(h) whether or not the work is a part of the regular busi-
ness of the employer;
(i) whether or not the parties believe they are creating the
relation of master and servant;
(j) whether the principal is or is not in business.
ing, or coercing employees in the exercise of their rights guar-
anteed by Section 7 of the Act. Section 7, of course grants
employees the right to self-organization, to form, join, or assist
a labor organization.
The facts recited above rather clearly show that Respondent,
when first faced with an organizing drive at a competitor, si-
multaneously becoming aware that the organizing drive was
going to include it, decided to respond by requiring all of its
employees to become independent contractors. It acted precipi-
tously, telling its employees that if they did not sign the NICA
agreement, they would no longer be able to work for Respon-
dent. Indeed, Tait admitted to the staff that one of the reasons
for the conversion was a direct response to the organizing drive.
Since converting the employees to independent contractors
would remove them from the definition of employee under
Section 2(3) of the Act, it had the necessary impact of stripping
them of their Section 7 right to form, join, or assist a labor un-
ion. This is a clear violation of Section 8(a)(3) as it directly
disrupted the hire and tenure of the employees. Instead of be-
ing employees, enjoying Section 7 rights, they found them-
selves treated as if they were nonemployees without any rights
whatsoever. Not only did they lose their Section 7 rights, they
also lost state protections such as unemployment insurance,
workmens’ compensation insurance, the right to complain to
the State Labor Commissioner concerning wage matters and the
like. This was no slight adjustment in position; it was a funda-
mental change of status.
Therefore, since it was done in direct reprisal for the em-
ployees seeking the assistance and representation of labor or-
ganization, on that basis alone this change was discriminatory
and a clear violation of Section 8(a)(3) and (1). However, it is
much more than that.
By requiring the employees to sign the NICA agreements,
which stripped them of the right to be employees under the Act,
and, therefore, the right to organize as granted by Section 7 of
the Act, Respondent was essentially forcing them to sign an
old-fashioned “yellow dog” contract. “Yellow dog” contracts
were lawfully used from the late 1880s until 1932. These con-
tracts of employment prohibited employees from joining labor
unions, and made continued employment conditional on the
employees’ refraining from union activity. Such contracts were
deemed pernicious, and a common source of labor strife, since
a fundamental cause of labor disputes was, and still is, the re-
fusal of employers to recognize labor unions. In 1932, the Nor-
ris-LaGuardia Act declared such contracts to be unenforceable
in the Federal courts.
They were also a principal factor which Congress considered
when passing the Wagner Act (the 1935 predecessor to the
National Labor Relations Act). While the “yellow dog” con-
tract was not declared illegal per se by the Wagner Act, Section
7 of the Wagner Act for the first time gave employees the spe-
cific right to engage in union activity, making it an unfair labor
practice to condition employment on the relinquishment of that
right. Thus, de facto in 1935, the “yellow dog” contract be-
came and has remained illegal as a violation of first, Section
8(1), and as of 1947, Section 8(a)(1). Similarly, insistence
FIRST LEGAL SUPPORT SERVICES, LLC 363
upon such a contract became a hire and tenure violation under
Section 8(3), now Section 8(a)(3).12
Respondent knew perfectly well that independent contractors
fell outside the purview of the Act. Its knowledge is clearly set
forth in the Tait and Gilboa speeches. In essence, the NICA
agreement is nothing more than a yellow dog contract in dis-
guise. Instead of forcing the employee to affirmatively for-
swear unionization, the NICA agreements simply redefined
these employees as something other than employees—
independent contractors who by definition cannot enjoy the
protection of the Act. The result was the same, employees were
prohibited by agreement from engaging in union organizing
activity. They were forced to relinquish the rights guaranteed
them by §7 of the Act. Don Brentner Trucking Co., 232 NLRB
428, 434 (1977) (forcing employees to sign individual contracts
requiring them to abandon the union); see generally Ra-Rich
Mfg. Corp., 120 NLRB 503, 506–507 (1958), enfd. 276 F.2d
451 (2d Cir. 1960); Superior Sprinkler, Inc., 227 NLRB 204
(1976); Karsh’s Bakery, 273 NLRB 1131 (1984); Hoffman Air
& Filtration Systems, 316 NLRB 353 (1995), and many others.
Nothing could be more pervasive or permanent. Moreover, the
perniciousness of such an approach perceived in the 1930s
remains just as inimical to employee rights today as it did then.
This is a bell that cannot be unrung.
C. Interference, Restraint, and Coercion
The complaint, under paragraphs 7, 8, and 9, including the
amendment of December 14, 2001, recites a series of similar
and interrelated conduct connected to Respondent’s conversion
of employees to independent contractors. The paragraph 7
allegations are aimed at Tait’s conduct on about November 21.
The evidence actually shows that Tait’s conduct did not begin
until the November 25 meeting. At that point he told employ-
ees that they must sign the NICA contract because, among
other things, Respondent feared a union organizing drive. In
addition he conditioned continued work with Respondent upon
the messengers’ signing the NICA agreement and becoming
independent contractors.
Paragraph 8 of the complaint essentially tracks the same type
of allegation, assigning it to Lazalde about November 24. This
is the date on which Lazalde told Votour he had to sign the
NICA agreement and become an independent contractor.
Lazalde discharged Votour when he refused. Similarly,
Lazalde, in mid-December told Washington that he was being
discharged because he had not timely signed the NICA agree-
ment and become an independent contractor.
Paragraph 9 is aimed at Gilboa’s meeting with employees on
November 29.13 Gilboa, too, threatened to discharge employ-
ees who failed to sign the NICA agreement or who wished to

12 See, e.g., Carlisle Lumber Co., 2 NLRB 248, 265–266 (1936),
enfd. 94 F.2d 138 (9th Cir. 1937), cert. denied 304 U. S. 575 (1938)
(requiring signing of yellow-dog contract as condition of returning to
work after strike).
13 The dates set forth in the complaint differ by a few days from
those found herein due to the nature of the evidence. The dates set
forth in the testimony or documentary support are those which I use
here. Respondent does not assert that the deviations are significant in a
due process sense. The sequence of events was well understood.
sign it under duress and protest. He also threatened to close the
facility if the employees selected the Union as their collective-
bargaining representative. Furthermore, the complaint alleges
the NICA membership perks to be an unlawful inducement or
grant of benefits to induce the employees to abandon union
representation. Similarly, the complaint alleges that the pay-
check deduction to pay for the NICA membership and/or insur-
ance was also unlawful. Tait, in conjunction with Bob the
NICA representative, had made a similar statement during the
November 25 meeting, but it first appears in the complaint
here.
Rather clearly the General Counsel’s evidence supports each
of these allegations and Respondent has made no effort to rebut
it. It is appropriate, therefore, to conflate all of these allega-
tions together. In essence they are all variations along the same
theme: convert to independent contractor status and pay for it
or lose your job. In each case the violation is the same, al-
though the means to effect of those changes are varied and
require somewhat different, yet appropriate, remedies.
The only allegation which requires anything more than a
minimal discussion is Gilboa’s threat to close the San Francisco
office. He does give some lip service to some business consid-
erations and a contention that a union is more appropriate to a
larger business, but he never gives any objective reason to sup-
port his statement. Under Gissel,14 the analytical question is
whether the remark was a threat or a “fact-based” prediction,
which would be lawful as an expression of opinion. Without an
objective explanation, his remark becomes an unlawful threat.
Id. 617–619; Jimmy-Richard Co., 210 NLRB 802, 804–805
(1974), enfd. sub nom. Amalgamated Clothing Workers v.
NLRB, 527 F.2d 803 (D.C. Cir. 1975), cert. denied 426 U.S.
907 (1976). Also, Weather Tamer, 253 NLRB 293, 305 (1980),
enfd. in pertinent part 676 F.2d 483 (11th Cir. 1982), and many
others. Since Gilboa never offered any objective basis for his
view, the remark is unlawful.
Therefore, I find all of the allegations set forth in paragraphs
7, 8, and 9 of the complaint to have been sustained and are all
violations of Section 8(a)(1). Appropriate remedies will be
granted.
D. Section 8(a)(3); Specific Individuals
1. Damon Votour
As noted, the Union filed its election petition on November
21. On Thursday, November 24, 3 days later, Lazalde pre-
sented bike messenger Damon Votour with a choice. He could
either sign a NICA independent contractor agreement or be
fired. Votour, taken by surprise, didn’t see any reason to do
that. Instead he declined and asked Lazalde if that meant was
fired. Lazalde told him yes.
Votour attended the meeting conducted by Tait on Novem-
ber 25, but there is no evidence that he participated in any
meaningful way. He waited until Monday, November 27, to
speak once again with Lazalde. At that point, the condition was
repeated. This time Lazalde told Votour he would hire him
back “under the pretense” that he was an independent contrac-

14 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364
tor. As a result Votour signed the NICA contract “under duress
and protest.”
In a sense, this is little different than what Tait had told the
assembled group during the course of the meeting: Sign the
agreement or be fired. However, this incident was precipitated
by a different manager, Lazalde, not Tait. Furthermore,
Lazalde actually told Votour he was fired, as opposed to Tait’s
generalized threats. Even so, it is not clear that Votour ever
lost any work. He apparently worked on Friday, the day of the
discharge, and then began working again on Monday after sign-
ing the NICA agreement. While it may be argued that since no
work was actually lost, no discharge was ever effected, I am
unpersuaded. Votour’s discharge is not whitewashed simply
because he returned to work on the next workday. Moreover,
there may have been hours lost either on Friday or the follow-
ing Monday. That can be determined at the compliance stage.
Clearly, Lazalde discharged Votour because he balked at
signing the NICA agreement. Since the NICA agreement was
an integral part of Respondent’s antiunion efforts, the discharge
violated Section 8(a)(3) and (1).
2. Kai Washington
Kai Washington attended the November 25 meeting and
shortly thereafter told Lazalde that he wouldn’t sign the NICA
agreement as union organizer Jerry Martin had told him such
agreements were illegal. At that point Lazalde told him that he
was terminated and asked him for his radio. Washington gave
it to him and left. A few days later, after discussing the situa-
tion further with Martin, Washington decided that it would be
better to work as an independent contractor than be unem-
ployed. Moreover, Martin had advised him that the Union
would fight the independent contractor issue while he worked.
During his time away, Washington had burned himself on his
automobile radiator. When he called Lazalde to tell him he
would work under the conditions being offered, he negotiated a
short delay while the burns healed sufficiently. Upon his re-
turn, dispatcher Romana Macalinao gave him the NICA agree-
ment to sign but she refused to accept his reservation that he
was signing under protest. He acceded to her insistence and
resumed work. It lasted only 3 days.
On the third day, Lazalde told Washington that he been in-
structed to fire him again, for a reason they both knew to be
untrue, attendance. When Washington pressed him, Lazalde
told him he didn’t really want to fire Washington, but Tait had
told him to do so because they were looking to get rid of some-
body and Washington had been selected because he had taken
so long to sign the NICA agreement.
As with Votour, Lazalde placed a condition upon Washing-
ton which is solely designed to prevent him from seeking union
representation. Furthermore, the fact that Lazalde at first of-
fered a false reason, only serves to emphasize the desperate
nature of Respondent’s approach to the union organizing drive.
The use of a false reason only underscores the illegality. Shat-
tuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966). Both the November 25 and December 14 discharges
violated Section 8(a)(3) and (1).
3. Christopher Atkinson
Unlike the other two, Atkinson was not discharged. The al-
legation here is that he was illegally denied employment when
Respondent discovered that Atkinson’s wife had been involved
in the union organizing campaign at Express Network.
It is clear from the evidence that Tait (through the marketing
director) had told Meredith Crawford to find a replacement for
her at Lillick & Charles. She was a trusted employee who had
been called upon to work in administration performing some
payroll reconciliation during the end of 2000. When she ran
into Atkinson during the early part of 2001, she had already
been asked by the marketing director to see if she could find
someone to take her place at Lillick & Charles. When she
found Atkinson, whom she knew from previous employment,
she began to negotiate employment terms with him. They
reached an agreement on salary and he was given a reporting
date.
When Atkinson reported for work on Monday, January 29,
2001, Tait gave him a runaround, claiming not to have someone
available who could train him on the computer. In reality, Tait
had seen the Daily Journal article concerning the organizing
drive at Express Network together with the accompanying pho-
tograph of Atkinson’s wife. The story even included references
to Maria Atkinson’s having been spat upon by the dispatcher at
Express Network because of the organizing. It also referred to
the fact that the Union had gone to the National Labor Rela-
tions Board and she had reported the incident there.
Based on that alone, one might reasonably conclude that the
denial was unlawful. However, any lingering doubt is resolved
by Crawford’s admission to Atkinson 3 days later that the rea-
son Respondent had not hired him was because management
had seen the Daily Journal article with Maria Atkinson’s pho-
tograph together with her quotations. Crawford told him
clearly that Respondent thought he was involved with the Un-
ion.
In this circumstance I have no reservations about finding Re-
spondent’s treatment of Christopher Atkinson to have violated
Section 8(a)(3) and (1). The Supreme Court held long ago that
an employer violates the act when it refuses to hire employees
because of their union membership. Phelps Dodge Corp. v.
NLRB, 313 U.S. 177 (1941). More recently, in FES, 331
NLRB 9 (2000), the Board revisited the requirements necessary
to make out such a violation.
It said the elements are: 1. a showing that the respondent was
hiring or had concrete plans to hire at the time of the alleged
unlawful conduct; 2. the applicants had experience or training
relevant to the announced or generally known requirements of
the positions for hire, or in the alternative, that the employer
has not adhered uniformly to such requirements, or that the
requirements were themselves pretextuous or were applied as a
pretext for discrimination; and 3. antiunion animus contributed
to the decision not to hire the applicants.
In my opinion the General Counsel is clearly met all three
requirements. In this fact pattern, Respondent had tendered an
offer of employment to Atkinson, thereby demonstrating that it
was hiring. Second he had the experience and background to
perform the job and third, antiunion animus not only contrib-
uted to the decision not to hire him, it was the only reason.
FIRST LEGAL SUPPORT SERVICES, LLC 365
Respondent presented some secondhand knowledge pos-
sessed by Atkinson to the effect that the Lillick & Charles in-
house opening did not occur, as the law firm to which Crawford
was to transfer, did not end up contracting with Respondent for
an in-house person. Atkinson’s knowledge may or may not be
accurate. Clearly it is not the sort of evidence upon which the
Board can rely. He has no firsthand knowledge. Indeed, no
firsthand knowledge was presented. Whatever occurred with
respect to the business contracts between Respondent and other
law firms, it is clear on this record that Respondent had offered
him the in-house slot at Lillick & Charles. Once it had offered
that job to Atkinson, it was not free to deny it to him for dis-
criminatory reasons. An instatement and a make-whole remedy
are appropriate here.
E. The April 19, 2001 Meeting
Then during the meeting of April 19, 2001, Tait made it all
worse. He interfered with the employees’ right under Section 7
to engage in protected union activity in multiple ways. Claim-
ing that Martin had told him so, Tait had come to believe that a
strike was imminent so he had called the meeting. He then
went on a virtual tirade. He equated a strike with a “jobless
day” and conceded that he had just threatened to fire them if
they struck. He insisted on discussing whatever issue was caus-
ing the unrest and demanded an opportunity to deal with it be-
fore a strike could be called, coupled with a threat to discharge
strikers who did not give him that opportunity. Both remarks
violate Section 8(a)(1). The law does not require (except for
health care institutions) employees to give their employer no-
tice before striking. And, at one point he told the group that it
could not strike because the Company was nonunion. This, too,
violates Section 8(a)(1).
Tait said all this before learning that Martin had only said
that a “work action” was being considered (apparently over the
Mascarenho discharge). Tait basically accused Martin of being
a liar, and then characterized prounion conversations among
employees as being “harassment” which he had a right to inter-
dict. Here he first denigrated a union official, violating Section
8(a)(1)15 and followed it by asserting that employees who spoke
to other employees about the Union were harassing them and
he wanted it stopped. Such a directive, hinting of discipline, is
unlawful. Section 7 gives employees the right to talk to one
another about, among other things, union organizing. Interdict-
ing it by such an order violates Section 8(a)(1).16 It may even

15 See Future Ambulette, 293 NLRB 884 (1989), enfd. 903 F.3d 140
(2d Cir. 1990) (specific issue not reviewed by the court). In that case
the “employer had unlawfully made disparaging remarks about a union
business agent’s honesty and competence. The finding of a violation
was grounded, however, not only on the derogatory character of these
remarks, but also on their context among other coercive statements,
especially those tending to convey to employees the futility of their
efforts to have the union as their collective-bargaining representative.”
Id. at 884. If there is no such context, name calling alone will not con-
stitute a violation. Sears, Roebuck & Co., 305 NLRB 193 (1991). That
context is present here, for Tait disparaged Martin’s integrity for the
purpose of convincing employees that he was not a trustworthy indi-
vidual.
16 Liberty Nursing Home of Lynchburg, 245 NLRB 1194, 1197 fn. 5
(1979); W. F. Hall Printing Co., 250 NLRB 803, 804 (1980); General
be characterized as the issuance of a “no union talk” directive,
also a violation of Section 8(a)(1).17
This was followed by a further discussion of the independent
contractor issue, again offering employees 2 weeks’ pay if they
didn’t wish to work under the NICA agreement. He also said it
did not matter how much pressure the employees put on him,
Gilboa would never change. “He will shut the door before he
changes.” This is a repeat of the unlawful threat to close down
in the event of unionization.
Then, he raised as a specter, the likelihood that any shut-
down would be caused, not by Gilboa, but by the courts. “God
forbid, that the courts end up closing us down because my
owner is pigheaded. The courts are pigheaded . . . . It will end
up in another worst-case scenario.” From a legal point of view,
this is another threat of a shutdown if Respondent is obligated
to recognize and deal with the Union. But it is much more
florid. Now Tait is not only blaming the Union for the potential
shutdown, he is blaming the law and the law enforcement agen-
cies. He has become entirely defiant of the obligations imposed
on employers by the Act.
His defiance increased. He then went on to assert that the
NLRB proceedings were without any force or meaning. He
falsely asserted that the order was not enforceable in California
and that the Company could simply say to the Board, “[F]uck
your order.” Then he asserted that if the Board took its order to
the courts for enforcement, that there was one chance in three
that the court would not enforce it. He accused the Board of
being prejudiced toward labor. Finally, he haunted the employ-
ees with his vision that the entire matter would take years, im-
plying that it would all end fruitlessly. The latter remarks are
unlawful as an expression to employees that the entire concept
of unionization is futile. Wellstream Corp., 313 NLRB 698,
706 (1994), and many others.18
Moreover, Tait’s offer to pay employees 2 weeks’ pay to quit
if they didn’t want to work under the (nonunion) conditions
being offered by Respondent also violates Section 8(a)(1).
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act, including a return to the
status quo before it forced its employees to sign the NICA
agreements. And, as Respondent discriminatorily discharged
Votour and Washington, it must offer each of them reinstate-
ment to his previous job, or if that is not available, to a substan-
tially similar job, and make each whole for any loss of earnings
and other benefits. Similarly, as it refused to hire Atkinson for
the Lillick & Charles in-house position because it perceived

Electric Co., 255 NLRB 673, 680 (1981); ACTIV Industries, 277
NLRB 834 (1985); Frazier Industrial Co., 328 NLRB 717 (1999).
17 Opryland Hotel, 323 NLRB 723 (1997), citing Teksid Aluminum
Foundry, 311 NLRB 711, 713–714 (1993); T & T Machine Co., 278
NLRB 970 (1986); Orval Kent Food Co., 278 NLRB 402 (1986); and
Cerock Wire & Cable Group, 274 NLRB 888, 897 (1985).
18 To the extent I have found 8(a)(1) violations not alleged in the
complaint, I simply observed that the findings were made because the
issues were admitted or fully litigated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 366
him as a likely union activist, it will be ordered to offer Atkin-
son instatement to that or a substantially equivalent job, to-
gether with backpay. Respondent shall take this action for all
three named individuals without prejudice to their seniority or
any other rights or privileges they may have enjoyed. Backpay
shall be computed on a quarterly basis from the date of the
discharge or the refusal to hire to the date Respondent makes a
proper offer of reinstatement/instatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
In addition, Respondent will be ordered to make whole all
the employees converted to independent contractor status for
monies lost due to the improper payroll deductions made under
the NICA agreements. Moreover, in the event there are nega-
tive income tax consequences, including lost social security
payments, arising from the discriminatory conduct, Respondent
shall be ordered to make those corrections as well. Further-
more, it will be ordered to make the payments it should have
made on behalf of each employee to the appropriate State funds
benefiting employees.
Finally, I address the bargaining order issue. A bargaining
order is an extraordinary remedy. The Supreme Court in NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969), stated that in con-
sidering whether a bargaining order is appropriate the Board
needed to look at the three categories of unfair labor practices
which it then delineated. The categories are based upon the
relative gravity of the unfair labor practices which had been
committed. In the first category, the unfair labor practices are
those which must be regarded as so outrageous and pervasive
that a representation election has been rendered impossible. In
this circumstance it would not matter whether the Union ever
enjoyed majority status during the course of the organizing
campaign—“without need of inquiry into majority status on the
basis of cards or otherwise.” Id. at 613. In the second category
are cases “marked by less pervasive practices which nonethe-
less still have the tendency to undermine majority strength and
impede the election processes.” In this category a bargaining
order could still be appropriate. This category, by implication,
requires proof of majority status through cards or some other
persuasive evidence. Here it might be said that the employer,
by its conduct has forfeited the opportunity for an election. The
third category involves unfair labor practices not so serious as
to reach the first or second category, allowing for ordinary
remedies to be applied. Upon the completion of a remedial
period, the Board may safely direct an election which would no
longer occur in an atmosphere contaminated by unfair labor
practices, thereby assuring that employees can freely choose
union representation or not.
Here, the Union filed a representation petition on November
21. The first unfair labor practice charge was filed on Novem-
ber 28, only 4 days after the first unfair labor practice was
committed, Lazalde’s discharge of Votour. The record does not
reflect what happened to the petition; it may have been with-
drawn, or possibly it is blocked by the unfair labor practice
charges. In any event no election has ever been conducted.
Indeed, there is no evidence that the election petition has been
processed in any way, either by a Stipulated Election Agree-
ment or by a directed election. It certainly has not been con-
solidated with the unfair labor practice cases here.
At the outset, let me say that I believe this case falls within
the Supreme Court’s first category. Without question the entire
proposed bargaining unit was affected by these unfair labor
practices. Indeed, virtually all of them are victims of Section
8(a)(3). All of the bike messengers and drivers were required
to sign NICA agreements or if you will, “yellow dog con-
tracts.” The testimony shows that only one court researcher
(Chris Young) was not directed to sign.
In addition, two individuals were discharged in violation of
Section 8(a)(3). Given the size of the proposed bargaining unit,
only 20, that is an outright discharge of 10 percent of the staff.
Furthermore, Respondent compounded these 8(a)(3) violations
by refusing to hire an individual because of his perceived
prounion proclivities. Rather clearly Respondent is sending a
message to the remainder of its staff that favoring a union, or
representation by a union, will result in denial of employment.
This, too, is a bell which cannot be unrung.
And, if the message was not heard by these examplars, the
Tait and Gilboa speeches were crystal clear on the subject.
They said that Respondent could not tolerate a union and if the
employees did not sign the NICA agreement the Company
would shut down. Gilboa used as an excuse his inability to
obtain insurance coverage. This, too, appears to be nothing
more than a ruse. If NICA can find competitive insurance,
surely Respondent can, as well. In any event, threatening to
shut down the business in response to unionization is a hall-
mark violation supporting the conclusion that a category one
series of unfair labor practices has occurred. NLRB v. Jamaica
Towing, 632 F.2d 208 (2d Cir. 1980); Horizon Air Services,
272 NLRB 243 (1984); Action Auto Stores, 298 NLRB 875
(1990) (citing Indiana Cal-Pro. Inc. v. NLRB, 863 F.2d 1292,
1301–1302 (6th Cir. 1988), enfg. 287 NLRB 796 (1987); and
State Materials, Inc., 328 NLRB 1317, 1330 (1999). In No-
vember, threats of that nature were uttered by Tait in his first
meeting and again by Gilboa in the second meeting; they were
repeated with greater vehemence a third time during Tait’s
April 19, 2001 meeting.
In the final analysis, it is clear Respondent, through its high-
est management officials, has simply rejected the national pol-
icy protecting collective bargaining. It has emasculated the
employees’ very right to be employees; it has threatened them
with loss of jobs for seeking union representation; it has threat-
ened them with discharge for striking; it has discharged two
and refused to hire a third employee because of their union
sympathies; it has equated merely talking about the Union with
harassment; it has threatened to shut down its business to avoid
unionization; and finally it has denigrated the law itself and
those charged with enforcing the law, both the Board and the
courts, for the simple purpose of trying to prove to the staff
what a futile act unionization is.
Clearly this course of conduct qualifies as a category one
level of misconduct as defined by the Supreme Court in Gissel.
Ordinary remedies simply will not suffice. It is clear to me that
this conduct has rendered a fair representation election impos-
sible.
FIRST LEGAL SUPPORT SERVICES, LLC 367
A. The Proposed Bargaining Unit
The Union’s petition sought a bargaining unit of “all full-
time and regular part-time bicycle and driver couriers employed
in the employer’s San Francisco operation.” It excluded all
other employees, guards and supervisors as defined in the Act.
Respondent asserts that it should also include those employees
who were employed as in-house, such as Crawford and/or Den-
nis Kittelson who were employed at Lillick & Charles during
late 2000 and early 2001.
First it is clear from the language of the petition that the Un-
ion has not sought to represent the in-house employees. Sec-
ond, the in-house employees do not have a clear community of
interest with the messengers and drivers. These individuals
serve more as salespersons, coordinators, and administrators
than as messengers. They do not operate in the field and are
not subject to the same sort of directives as the messengers and
drivers. Indeed, rather than taking directions from the dis-
patcher, they give the dispatcher information concerning pick-
ups and other matters for assignment. At Lillick, Crawford
served as a coordinator and sales contact person, handling both
incoming and outgoing deliveries. Only on very rare occasions
did she actually make a delivery herself, and then only to a
recipient within easy walking distance of the Lillick office and
in circumstances where a bicycle messenger could not be called
upon. It was certainly not part of her regular duties. Further-
more, as observed in the Atkinson hire, Crawford seems almost
to have been a supervisor, having been given authority to find
and hire (or recommend for hire) a candidate to replace her. It
may be that she was only given hiring authority on the one
occasion, but it nonetheless demonstrates that Respondent re-
gards her as something more than a rank-and-file employee.
Furthermore, during the November–December period she was
called to the office to perform payroll reconciliation duties,
clearly an administrative responsibility.
During her absence, Kittelson was asked to serve as the in-
house at Lillick & Charles. Kittelson was normally a driver
who served outlying counties. As a driver, he was included in
the bargaining unit sought by the Union. It appears that his
assignment to the in-house job at Lillick & Charles was only as
a fill-in while Crawford was temporarily working in the head-
quarters office. Like hers, his was clearly a temporary assign-
ment and the obvious expectancy was that he would return to
his normal driving duties when she returned to Lillick. He is a
bargaining unit member. See Mrs. Baird’s Bakeries, 323
NLRB 607 (1997).19 And, as expected she did return.
I find the unit which the Union proposed to be an appropriate
unit for collective bargaining. In-house and other administra-
tive staff do not share a community of interest with these driv-
ers and messengers. I suppose it may be said that there might
be other appropriate units which could be chosen, but it has
been said innumerable times that the union does not have to
seek a bargaining unit which is the most appropriate, only that
it be an appropriate one. Overnite Transportation Co., 322
NLRB 723 (1996).

19 The record does not actually disclose where Kittelson went when
Crawford resumed her duties at Lillick. That, of course, does not
change the expectancy as it existed on November 24.
B. Majority Issue
As of November 24, there were 20 individuals in the bar-
gaining unit. Alphabetically, they were: Charles Annen, Mark
Beach, Gregory Chua, Casey Cook, Erik Freeland, Jaime Gon-
zalez, James Harris, Dennis Kittelson, Robert Larrison, Sandro
Mascarenhas, Adolfo Mendez, Sergio Ramos, Sam Roberts,
Charles P. Smith, Agostinho Trolezi, Damon Votour, Kai
Washington, Jeff Webb, Chris Williamson, and Chris Young.20
Ten of these signed authorization cards before November 24.
Indeed, only the eleventh card is in serious question here, that
of Casey Cook. 21
Cook was not called as a witness to authenticate the photo-
copy of his card. Instead, there is some conflicting evidence
concerning it. Votour testified that he solicited it about a week
after he himself had signed on November 17 and that it was one
of those given to Martin on November 21. Oddly, however,
Charles Annen gave an affidavit to the Board agent in which he
stated that he had solicited it on November 24. His affidavit
describes the surrounding circumstances in some persuasive
detail. In front of me Annen repudiated the affidavit saying
that it must have been in error, that he even had reservations
about his accuracy when the affidavit was being drafted, yet
curiously he kept those doubts to himself.
Since the critical date here is the date of the first unfair labor
practice, November 24, I would not normally be much con-
cerned about the Votour-Annen discrepancy. However, Cook’s
authorization card leaves much to be desired. First it is un-
dated. Second, Cook did not authenticate it. Instead, it has
been authenticated by two different people in two different
circumstances. Those individuals are at odds in a way that
cannot be easily reconciled. There is no reason to accept either
version. This becomes even more clear when one looks at the
evidence which was presented versus the evidence which could
have been presented.
I earlier noted that Martin did not support the petition with
the original authorization cards when he filed it with the Re-
gional Office. Instead, he substituted photocopies. Presumably
the photocopies which he submitted are still in existence and
have been date stamped by the Regional Office in the ordinary
course. Yet those were not offered in evidence. Had they been
presented, the issue of the date Cook signed his authorization
card would have been resolved. It either would or would not
have been included. Had it been included, its existence prior to
November 21 would have been conclusive. Votour’s testimony
would have been confirmed, and Annen’s purported error un-
derstood.
As it is, however, there is no explanation for the missing
photocopies which Martin submitted. Furthermore, there is

20 Respondent has also provided the names of several others whom it
believes should be included. Four of these were hired on November
27: Aaron Curry, Dan Drake, Olivia Ferucci, and Chris McCombs. A
fifth, Amaury Rivera, does not appear on the payroll for that pay pe-
riod.
21 Respondent argues against the consideration of Trolezi’s card,
whose date shows a strikeover for the number of the month. I am satis-
fied that it was signed on the 11th month. Accordingly, I consider it to
be a valid card.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 368
testimony from two witnesses that a Board agent, during the
course of the investigation had the originals in his possession
while investigating their verities. Counsel for the General
Counsel has asserted that those originals cannot be found.
These are two curious errors by the Regional Office.
Counsel for the General Counsel point to Votour’s testimony
that he gave Cook’s card, together with the others, to Martin on
November 21, asserting that the testimony should be credited in
the absence of other more credible evidence. I do not believe I
can do so.
First, it appears that the Regional Office was permitting pho-
tocopies of authorization cards during this period of time as a
matter of routine. I am unsure why this was done, and the Gen-
eral Counsel has offered no explanation. Certainly it is a depar-
ture from the Board’s traditional practice to accept only origi-
nals. Second, photocopies carry with them risks that originals
do not. Over the years the Board has occasionally faced accu-
sations that it was relying on forged documents, specifically
authorization cards. While it is no doubt true that the vast ma-
jority of such accusations have been meritless, nonetheless
there have been situations in which forgeries have been proven.
There have been several recent incidents. See Tecumseh Cor-
rugated Box Co., 333 NLRB 1 (2001). Also Multimatic Prod-
ucts, 288 NLRB 1279, 1319 (1988) (two employees backdated
authorization cards show majority status; backdating not always
fraudulent); U.S. Plastics Corp., 213 NLRB 323, 341 (1974)
(administrative law judge finds three forged cards); Missouri
Meat Packers, 197 NLRB 176, 182 (1972) (altered dates); and
Raymond Buick, 173 NLRB 1292, 1307 (1968) (fraudulent
backdating). In addition, in the not so distant past the Board has
seen union misrepresentation of majority status. Royal Coach
Lines, 282 NLRB 1037 (1987), enf. denied 838 F.2d 47 (2d Cir.
1988).
Given this background, it behooves the Board to carefully
guard against fraud in the use of authorization cards, particu-
larly where employee free choice is at stake. It is one thing to
charge Regional Directors to administratively determine22 the
verities of authorization cards presented in support of a petition;
there, even if a forged card escapes scrutiny, the employees are
free to vote their heart in choosing a union representative. It is
another thing entirely to impose a bargaining agent upon em-
ployees based upon a fraudulent majority. Here, no one save a
Board agent who cannot find them has seen the originals of
these cards. Indeed, he may not have seen them. He did not
testify; we have only the word of some employee witnesses that
he possessed them. And, if their recollection is faulty, then the
Regional Office has never seen the originals at all. If he did
have them, the Regional Office’s explanation for their disap-
pearance is unsatisfactory and it is not hard to envision that
some might well consider the Regional Office’s integrity to be
open to question, particularly since it already admits to rou-
tinely accepting photocopied authorization cards.

22 The forgery of signatures on authorization cards for the purpose of
demonstrating a showing of interest is normally a matter of administra-
tive inquiry. Perdue Farms, 328 NLRB 909 (1999); Gaylord Bag Co.,
313 NLRB 306 (1993); and Globe Iron Foundry, 112 NLRB 1200
(1955). Nonetheless, as in Perdue, it could become a criminal matter.
As I pointed out on the record, a photocopy machine and
some correction fluid are easy and handy tools for fraud. The
use of a photocopy machine as the basis for a bargaining order
seems to be an unreasonable risk, given the ease of potential
abuse. Now it should be said here, that I do not find the Cook
card to be the product of such abuse. Yet the possibility is real.
It is a critical card, one which if accepted, constitutes proof of
the Union’s majority status by a margin of one. It is a weak
reed upon which to build an extraordinary remedy. I do not
believe the Board should do so.
Accordingly, I decline to accept the Cook card as proof of
the Union’s majority status. It simply has too many infirmities
to be regarded as trustworthy. Not only is it undated (nor can
the date be fixed extrinsically with any confidence); it is a pho-
tocopy; the original is missing under odd circumstances; the
photocopy used to support the petition before the Regional
Director has not been presented; two different witnesses have
offered two different stories regarding how it came to be in
existence; and lastly, despite all these infirmities which the
General Counsel must have perceived, the signer, Cook, did not
testify about it. I cannot recommend that the Board issue a
bargaining order based upon this card.
Therefore, I am unable to conclude that the Union has dem-
onstrated that it had majority status on November 24 or any
other date. That is not to say that the unfair labor practices are
not deserving of a bargaining order as the proper remedy.
These are category one unfair labor practices as the Supreme
Court defined them. They are so serious and pervasive that
ordinary remedies will not reach them. Moreover, this activity
is supported and fostered by Respondent’s highest management
officials. An extraordinary remedy such as a bargaining order
is the only way to deal with it. Yet, there is a serious legal
impediment blocking the way.
The Board is reluctant to issue a so-called nonmajority bar-
gaining order, particularly where, as here, there is no 8(a)(5)
allegation in the complaint or where the union has not de-
manded recognition. See Gourmet Foods, 270 NLRB 578
(1984). Moreover, the Board recently declined to reconsider
Gourmet Foods in Nabors Alaska Drilling, Inc., 325 NLRB
574 (1998). At least one court has expressed disagreement with
the Board’s policy as established by Gourmet Foods. NLRB v.
Horizon Air Services, 761 F.2d 22, 28 (1st Cir. 1985). Never-
theless, I am bound by the Board’s policy. Iowa Beef Packers,
144 NLRB 615, 616 (1963). Therefore, despite the fact that I
find this to be a category one violation under Gissel, warranting
a bargaining order without regard to majority status, I can only
recommend standard cease-and-desist, reinstate/instate, status
quo ante, and make-whole remedies. And, because of the seri-
ous nature of the violations, Respondent’s egregious and wide-
spread misconduct, demonstrating a general disregard for the
employees’ fundamental rights, I do find it appropriate to rec-
ommend a broad Order requiring Respondent to cease and de-
sist from infringing in any other manner on rights guaranteed
employees by Section 7 of the Act. Hickmott Foods, 242
NLRB 1357 (1979).
If, in addition to these remedies, the Board chooses to revisit
Gourmet Foods, supra, the foregoing bargaining unit discussion
should avoid a remand on the point.
FIRST LEGAL SUPPORT SERVICES, LLC 369
Accordingly, based on the foregoing findings of fact, I make
the following.
CONCLUSIONS OF LAW
1. Respondent 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. Beginning on or about March 24, 2000, Respondent vio-
lated Section 8(a)(3) when it forced its employees to sign NICA
independent contractor agreements in order to strip them of
their employee status under Section 2(3) of the Act and thereby
deprived them of the rights guaranteed them by Section 7 of the
Act.
4. On November 24, 2000, Respondent, acting through Andy
Lazalde, violated Section 8(a)(1) of the Act when it threatened
employee Damon Votour with discharge if he did not sign an
agreement to become an independent contractor.
5. On November 24, 2000, Respondent, acting through
Lazalde, violated Section 8(a)(3) when it discharged Votour.
6. On or about November 25, 2000, and again on December
14, 2000, Respondent, acting through Lazalde violated Section
8(a)(1) when it discharged its employee Kai Washington be-
cause he refused to sign the NICA independent contractor
agreement.
7. On or about November 27, 2000, Respondent acting
through Lazalde violated Section 8(a)(1) when he conditioned
Votour’s rehire on Votour’s signing the NICA agreement.
8. On November 25 and 29, 2000, Respondent acting
through David Tait and Elisha Gilboa, violated Section 8(a)(1)
by telling employees they must sign the NICA independent
contractor agreement or be discharged.
9. On November 29, 2000, Respondent, acting through El-
isha Gilboa, violated Section 8(a)(1) by threatening to close the
business because of the union organizing efforts of its employ-
ees.
10. On November 29, 2000, Respondent, acting through El-
isha Gilboa, violated Section 8(a)(1) by promising employees
benefits such as occupational accident insurance, life insurance,
and income tax assistance if they were to sign the NICA
agreement and relinquish their right to union representation.
11. On or about December 11, 2000, Respondent violated
Section 8(a)(1) when it conditioned its employee Kai Washing-
ton’s rehire on his signing a NICA independent contractor
agreement.
12. On or about December 14, 2000, Respondent violated
Section 8(a)(3) when it discharged Washington because he had
not promptly signed the NICA independent contractor agree-
ment.
13. On January 29, 2001, Respondent acting through Tait,
violated Section 8(a)(3) of the Act when it refused to hire ap-
plicant Christopher Atkinson because his wife was involved in
union organizing.
14. On or about February 5, 2001, Respondent acting
through Meredith Crawford, violated Section 8(a)(1) when it
told applicant Christopher Atkinson that it would not hire him
because his wife was involved in union organizing.
15. On April 19, 2001, Respondent, acting through Tait, vio-
lated Section 8(a)(1) when it:
(a) Threatened to close the business if the employees per-
sisted in seeking union representation.
(b) Threatened to discharge employees who choose to en-
gage in a lawful strike.
(c) Equated employees talking to each other about the Union
as harassment subject to interdiction.
(d) Denigrated a union official by falsely calling him a liar in
order to undermine his integrity and his effectiveness.
(e) Offered to pay employees two weeks’ pay to induce them
to quit in order to rid itself of union activists.
(f) Created the vision that unionization is a futile act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended23
ORDER
The Respondent, First Legal Support Services, LLC, San
Francisco, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Forcing its employees to sign independent contractor
agreements in order to strip them of their employee status under
Section 2(3) of the Act thereby depriving them of the rights
guaranteed them by Section 7 of the Act.
(b) Giving effect to the independent contractor agreements
signed by its employees.
(c) Threatening employees with discharge if they refused to
sign an agreement to become an independent contractor.
(d) Discharging its employees because they refused to be-
come independent contractors.
(e) Conditioning employees’ rehire on their signing an agree-
ment requiring them to become independent contractors.
(f) Threatening to close the business because of the union
organizing efforts of its employees.
(f) Promising employees benefits such as occupational acci-
dent insurance, life insurance, and income tax assistance if they
were to sign the independent contractor agreement.
(f) Refusing to hire applicants because they or their family
members are engaged in union organizing.
(g) Telling applicants that they would not be hired because
they or their family members are involved in union organizing.
(h) Threatening to discharge employees who choose to en-
gage in a lawful strike.
(i) Equating employees talking to each other about the Union
as harassment subject to interdiction.
(j) Denigrating union officials by falsely calling them liars to
undermine their integrity and effectiveness.
(k) Offering to pay employees 2 weeks’ pay to induce them
to quit in order to rid itself of union activists.
(l) Creating the vision for employees that unionization is a
futile act.

23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 370
(m) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s order cancel
all of the independent contractor agreements it forced its em-
ployees to sign.
(b) Within 14 days from the date of this order restore all of
its bicycle messengers, drivers and court researchers to the
status of 2(3) employees which they enjoyed prior to their con-
version to independent contractors, without prejudice to any
earnings increases which may have been granted in the interim.
(c) Make whole its bicycle messengers, drivers, and court re-
searchers for any 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 decision.
(d) Within 14 days from the date of this Order, offer Damon
Votour and Kai Washington full reinstatement to their former
jobs or, if that job no longer exists, to a substantially equivalent
position, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(e) Make Damon Votour and Kai Washington whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the rem-
edy section of the decision.
(f) Within 14 days from the date of this Order, offer Christo-
pher Atkinson instatement to the in-house job which he had
been offered or if that job no longer exists to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges.
(g) Make Christopher Atkinson whole for any loss of earn-
ings and other benefits suffered as a result of the discrimination
against him, in the manner set forth in the remedy section of the
decision.
(h) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful conversion to independ-
ent contractor status, to the discharges, and to the refusal to
hire, and within 3 days thereafter notify the affected employees
in writing that this has been done and that the conversion, dis-
charges and refusal to hire will not be used against them in any
way.
(i) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(j) Within 14 days after service by the Region, post at its of-
fice in San Francisco, California, copies of the attached notice
marked “Appendix.”24 Copies of the notice, on forms provided

24 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.”
by the Regional Director for Region 20, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate 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 November 24, 2000.
(k) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT force you to sign independent contractor
agreements in order to strip you of your employee status under
the law and to deprive you of the rights set forth above.
WE WILL NOT give any effect to the independent contractor
agreements we forced you to sign.
WE WILL NOT threaten to discharge you for refusing to sign
an independent contractor agreement.
WE WILL NOT discharge you because you refuse to become
independent contractors.
WE WILL NOT condition the rehire of any employee on his or
her signing an independent contractor agreement.
WE WILL NOT threaten to close the business because of your
organizing activities on behalf of Warehouse Union Local 6,
International Longshore and Warehousemen’s Union, AFL–
CIO.
WE WILL NOT promise you benefits such as occupational ac-
cident insurance, life insurance, and income tax assistance to
induce you to sign an independent contractor agreement.
WE WILL NOT refuse to hire job applicants because they or
their family members are engaged in union organizing.
WE WILL NOT tell job applicants that they were not be hired
because they or their family members are involved in union
organizing.
FIRST LEGAL SUPPORT SERVICES, LLC 371
WE WILL NOT threaten to discharge you if you choose to en-
gage in a lawful strike.
WE WILL NOT equate employees talking to each other about
the Union as harassment which we can stop.
WE WILL NOT falsely call union officials liars in order to un-
dermine their integrity and effectiveness.
WE WILL NOT offer you any kind of payment to induce you to
quit in order to rid the Company of union activists.
WE WILL NOT say or do things to make you believe that un-
ionization is a futile act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you for exercising your rights guaranteed by the labor
laws.
WE WILL within 14 days from the date of the Board’s order,
cancel all of the independent contractor agreements we forced
you to sign.
WE WILL within 14 days from the date of the Board’s order,
restore all of the bicycle messengers, drivers, and court re-
searchers to the status of employees under the law without
prejudice to any earnings increases which may have been
granted to them in the interim.
WE WILL pay all of the bicycle messengers, drivers, and court
researchers to make up for any loss of earnings and other bene-
fits which they incurred because of our discrimination against
them.
WE WILL, within 14 days from the date of the Board’s order,
offer Damon Votour and Kai Washington full reinstatement to
their former jobs or, if their job no longer exists, to a substan-
tially equivalent position, without prejudice to their seniority or
any other rights or privileges.
WE WILL pay Damon Votour and Kai Washington for any
loss of earnings and other benefits they incurred as a result our
discrimination against them, plus interest.
WE WILL, within 14 days from the date of the Board’s order,
offer Christopher Atkinson the in-house job which we illegally
denied him, or if that job no longer exists, to a substantially
equivalent position.
WE WILL pay Christopher Atkinson for any loss of earnings
and other benefits which he incurred as a result of our discrimi-
nation against him, plus interest.
WE WILL, within 14 days from the date of the Board’s order,
remove from our files any reference to the unlawful conversion
to independent contractor status, to the discharges, and to the
refusal to hire, and within 3 days notify the affected employees
in writing that we have done so; the conversion, discharges and
refusal to hire will not be used against them in any way.

FIRST LEGAL SUPPORT SERVICES, LLC