Fun Connection & Juice Time

National Labor Relations Board - Board Decisions

Apr 30, 1991

302 N.L.R.B. 740 (N.L.R.B. 1991)

740
302 NLRB No. 115
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 In adopting the judge’s conclusion that the Respondent threatened to dis-
charge and later discharged the striking employees, we rely on the credited
testimony of employees Micelli and Macie and Union President Wood con-
cerning the statements made by Peter Mayone Sr. and Peter Mayone Jr. Ac-
cordingly, we do not rely on the adverse inference drawn by the judge regard-
ing the Respondent’s failure to call employee Dowd as a witness.
We also agree with the judge’s conclusion that the Respondent required em-
ployees to disavow the Union and withdraw their authorization cards as a con-
dition of employment on their return to work from the strike. In reaching this
conclusion, we rely on Macie’s credited testimony that, when he attempted to
return to work with other employees, Mayone Jr. informed them that they
would have to sign a card stating that they did not want the Union anymore.
Thus, we find it unnecessary to pass on the judge’s determination that em-
ployee Colletti acted as an agent of the Respondent in obtaining written
disavowals from returning employees.
The Respondent has excepted to the judge’s conclusion that the strike that
began on May 9, 1988, was converted to an unfair labor practice strike even
though the employees had initially intended to strike for recognition. In adopt-
ing the judge’s conclusion we note, with respect to effect of the Respondent’s
unfair labor practices in prolonging the strike, that the employees were unlaw-
fully discharged by the Respondent at the inception of the strike.
Fun Connection and Juice Time; Offi-Serve, Div. of
Stuff Like That, Inc.; Capital Vending and Co-
lumbia Vendors and Bakery, Laundry, Bev-
erage Drivers and Vending Machine Service-
men and Allied Workers Local No. 669, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO. Cases 3–CA–14365–1,
3–CA–14365–2, and 3–CA–14365–3
April 30, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On April 5, 1990, Administrative Law Judge Robert
T. Snyder issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party filed answer-
ing briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified and set forth in full below.
In its exceptions, the Respondent contends that the
bargaining order recommended by the judge is not ap-
propriate based, inter alia, on the turnover among bar-
gaining unit employees since the time of the Respond-
ent’s unfair labor practices. The Board has specifically
held that ‘‘the validity of a bargaining order depends
on an evaluation of the situation as of the time the un-
fair labor practices were committed.’’ See Highland
Plastics, 256 NLRB 146, 147 (1981). Thus, the evi-
dence presented by the Respondent regarding changes
in the composition of the bargaining unit are irrelevant
considerations when assessing the propriety of issuing
a Gissel bargaining order. See, e.g., Massachusetts
Coastal Seafoods, 293 NLRB 496 (1989); Salvation
Army Residence, 293 NLRB 944 (1989).
We are cognizant, however, that this case arises in
the Second Circuit, in which the court has repeatedly
considered this factor relevant to the determination of
this issue. See, e.g., NLRB v. J. Coty Messenger Serv-
ice, 763 F.2d 92 (1985); NLRB v. Marion Rohr Corp.,
714 F.2d 228 (1983). We therefore shall address the
significance of the evidence presented by the Respond-
ent. We find, however, that this evidence would not
warrant withholding an otherwise appropriate bar-
gaining order. The Respondent’s unfair labor practices
were serious and affected the entire unit. The record
shows that as of the time of the hearing 5 of the 12
bargaining unit employees employed at the time of the
unfair labor practices had left the Respondent’s employ
for reasons that are not indicated in the record. The re-
maining seven employees were still employed, how-
ever, as well as at least one replacement who was
hired at the time of the Respondent’s unfair labor prac-
tices and reasonably likely to have been aware of the
actions taken in response to the employees’ attempt to
organize. We find that the turnover present in this case
would not sufficiently mitigate the inhibitive effects of
the Respondent’s actions, and that those effects are
likely to persist for the reasons set forth by the judge
in recommending the issuance of a bargaining order.
ORDER
The National Labor Relations Board orders that the
Respondent, Fun Connection and Juice Time; Offi-
Serve, Div. of Stuff Like That, Inc.; Capital Vending
and Columbia Vendors, Coeymans, New York, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging any employees or otherwise dis-
criminating against them in retaliation for engaging in
protected strike, work stoppage or other protected ac-
tivities for their mutual aid or protection.
(b) Interfering with, restraining, or coercing their
employees in the exercise of the rights guaranteed in
Section 7 of the Act by informing their employees that
they would never recognize or deal with a union and
that they were discharged for engaging in strike, work
stoppage or other protected concerted activities; by in-
terrogating their employees concerning their union or
other protected concerted activities; by soliciting griev-
ances from their employees and impliedly and explic-
itly promising to redress them and institute improve-
ments in terms and conditions of employment, and
promising to provide other benefits, including co-
signing for an automobile loan, if employees ceased
741FUN CONNECTION & JUICE TIME
3 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
their support for the Union; by instituting as a condi-
tion of employment a requirement that employees sign
a statement disavowing the Union and withdrawing
their union authorization cards; by directing their em-
ployees to produce their NLRB affidavits in the course
of preparation for trial, without the specific safeguards
required by the Act; and by directing an employee to
abstain from contact with the Union or with other em-
ployees in order to solicit their support for the Union.
(c) Granting salary increases, increases in contribu-
tions to employee health insurance premiums, or other
improvements in terms and conditions of employment
in order to discourage their employees’ support for, ac-
tivities on behalf of, or membership in a labor organi-
zation. Nothing herein, however, shall require Re-
spondents to rescind or withdraw these benefits and
improvements granted to employees.
(d) Refusing to recognize and bargain with Bakery,
Laundry, Beverage Drivers and Vending Machine
Servicemen and Allied Workers Local No. 669, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO, as the exclusive representative of the em-
ployees in the following appropriate unit:
All route salesmen, drivers, mechanics and ware-
housemen employed by Respondents at their fa-
cilities located at Ravena and Coeymans, New
York, excluding all other employees, guards and
supervisors as defined in the Act.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make the employees named below whole for any
loss of earnings which they may have suffered by vir-
tue of the discrimination against them by paying them
an amount equal to what they would have earned from
the date of discharge to the date that they were offered
reinstatement. Such backpay is to be computed in the
manner set forth in the remedy section of the judge’s
decision and as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950).
Malcolm Carter Mark Racene
Steve Colletti Rick Sanchez
Ken Cymbalisty Harold Turk
James Macie Rick Thrush
Joe Micelli Robert Wyant
(b) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
records, reports, and other documents necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(c) Recognize, effective May 9, 1988, and on re-
quest, bargain in good faith with Bakery, Laundry,
Beverage Drivers and Vending Machine Servicemen
and Allied Workers Local No. 669, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO, as
the exclusive representative of the employees in the
appropriate unit and embody in a signed agreement
any understanding reached.
(d) Post at its Ravena and Coeymans, New York fa-
cilities, copies of the attached notice marked ‘‘Appen-
dix.’’3 Copies of said notice on forms provided by the
Regional Director for Region 3, 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge any employees or otherwise
discriminate against them in retaliation for engaging in
protected strike, work stoppage or other protected ac-
tivities for their mutual aid or protection.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed in
Section 7 of the Act by informing our employees that
we would never recognize or deal with a union and
that they were discharged for engaging in strike, work
stoppage, or other protected concerted activities; by in-
terrogating our employees concerning their union or
other protected concerted activities; by soliciting griev-
ances from our employees and impliedly and explicitly
promising to redress them and institute improvements
in terms and conditions of employment, and promising
to provide other benefits including cosigning for an
automobile loan if our employees ceased their support
for the Union; by instituting as a condition of employ-
ment a requirement that employees sign a statement
disavowing the Union and withdrawing their union au-
742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 International union affiliation added to name of the Charging Party by mo-
tion granted during hearing.
thorization cards; by directing our employees to
produce their NLRB affidavits in the course of prepa-
ration for trial, without the specific safeguards required
by the Act; and by directing an employee to abstain
from contact with the Union or with other employees
in order to solicit their support for the Union.
WE WILL NOT grant salary increases, increases in
contributions to employees health insurance premiums,
or other improvements in terms and conditions of em-
ployment in order to discourage our employees’ sup-
port for, activities on behalf of, or membership in a
labor organization. Nothing herein, however, shall re-
quire us to rescind or withdraw these benefits and im-
provements we have granted.
WE WILL NOT refuse to recognize and bargain with
Bakery, Laundry, Beverage Drivers and Vending Ma-
chine Servicemen and Allied Workers Local No. 669,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO, as the exclusive representative of our em-
ployees in the following appropriate unit:
All route salesmen, drivers, mechanics and ware-
housemen employed by Respondents at their fa-
cilities located at Ravena and Coeymans, New
York, excluding all other employees, guards and
supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL make our employees named below whole
for any loss of earnings which they may have suffered
by virtue of our discrimination against them by paying
them an amount equal to what they would have earned
from the date of discharge to the date that they were
offered reinstatement, less net interim earnings, plus
interest.
Malcolm Carter Mark Racene
Steve Colletti Rick Sanchez
Ken Cymbalisty Harold Turk
James Macie Rick Thrush
Joe Micelli Robert Wyant
WE WILL recognize, effective from the date begin-
ning May 9, 1988, and, on request, bargain in good
faith with Bakery, Laundry, Beverage Drivers and
Vending Machine Servicemen and Allied Workers
Local No. 669, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO, as the exclusive rep-
resentative of our employees in the appropriate unit
and embody in a signed agreement any understanding
reached.
FUN CONNECTION AND JUICE TIME;
OFFI-SERVE, DIV. OF STUFF LIKE THAT,
INC.; CAPITOL VENDING AND COLUMBIA
VENDORS
Alfred M. Norek, Esq., for the General Counsel.
Richard A. Kohn, Esq. (Kohn, Bookstein & Karp, P. C.), of
Albany, New York, for the Respondent.
Domenick Tocci, Esq. and Stephen V. Parker, Esq., of Al-
bany, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. These
consolidated cases were heard by me in Albany, New York,
on January 23 to 26, 1989, on companion unfair labor prac-
tice charges filed on May 12, 1988, and a consolidated com-
plaint issued on June 30, 1988. The consolidated complaint
alleges that Fun Connection and Juice Time (Juice Time);
Offi-Serve, Div. of Stuff Like That, Inc. (Offi-Serve); Capital
Vending and Columbia Vendors (Capital Vending); and col-
lectively (Respondent), engaged in a variety of unlawful acts,
including the termination of its employees who were then on
strike in support of a demand for recognition of the Union1
as their collective-bargaining representatives, adamant refusal
to recognize or deal with the Union, interrogation of its em-
ployees concerning their union activities, solicitation of
grievances and promises to redress them and to improve ben-
efits, and conditioning the striking employees’ return to em-
ployment on their disavowal of the Union, and withdrawal
of their union authorization cards, in violation of Section
8(a)(1), (3), and (5) of the Act. The complaint further alleges
granting of a salary increase or increase in the Respondent’s
contribution to health insurance premium at the employee’s
option and directing an employee to cease his union activity,
and to produce his NLRB statement without providing the
required assurances against reprisals and that production was
voluntary, in violation of Section 8(a)(1) of the Act. During
the hearing, by motion, the General Counsel further amended
the complaint to alleged Respondent’s promise to an em-
ployee to cosign for an automobile loan in order to induce
his return to work and abandonment of the strike and Re-
spondent’s grant of other improvements in terms and condi-
tions of employment in order to discourage its employee’s
support for and activities on behalf of the Union in violation
of Section 8(a)(1) of the Act. The General Counsel also al-
leges that the strike was prolonged by various of the unfair
labor practices of Respondent described. Among other rem-
edies, the General Counsel seeks a bargaining order ground-
ed on the claim that Respondent’s conduct, intended to un-
dermine the Union and destroy its majority status in the ap-
743FUN CONNECTION & JUICE TIME
2 By motion made during hearing, the General Counsel alleges an alternate
overall unit as appropriate for bargaining and the preferred unit for imposition
of the bargaining remedy. 3 All dates shall refer to 1988 unless otherwise noted.
propriate units alleged2 tended to interfere with the election
process and to preclude the holding of a fair election.
Respondent filed answer denying the conclusionary allega-
tions of violations of the Act alleged in the consolidated
complaint. During the hearing, Respondent denied the
amendments to the complaint alleging further violations of
the Act described above.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally and to file briefs. The General Coun-
sel and Respondent have each filed posttrial briefs which
have been carefully considered. On the entire record in the
case including my observation of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Juice Time, a partnership consisting of Peter Mayone Sr.
(Mayone or Mayone Sr.), and Peter Mayone Jr. (Mayone Jr.),
organized under the laws of the State of New York, with its
principal office located at a warehouse at South Main Street
in Coeymans, New York (the warehouse or Coeymans facil-
ity) and a facility located at 152 Main Street, Ravena, New
York (the Ravena facility), has been at all times material, en-
gaged in the retail and nonretail sale and distribution of
canned and bottled juices. Fun Connection, a related business
entity, is engaged in the distribution of video games. Annu-
ally, in the course of its business operations, Juice Time de-
rives gross revenues in excess of $500,000 and purchases
and receives at the Ravena facility goods and materials val-
ued in excess of $50,000, which are shipped directly from
points located outside the State of New York. Offi-Serve, a
New York corporation, with its principal office and place of
business located at the Ravena facility has been at all times
material engaged in servicing of coffee machines, water cool-
ers, and soda machines and the retail and nonretail sale of
soda, coffee, and water. Annually, in the course of its busi-
ness operations, Offi-Serve derives gross revenues in excess
of $500,000 and purchases and receives goods and materials
at the Ravena facility valued in excess of $50,000 which are
shipped directly from points located outside the State of New
York. Capital Vending, a partnership organized under the
laws of the State of New York with its principal office and
place of business located at the Ravena facility has been at
all times material engaged in the retail and nonretail sale of
soda, candy, snacks, cigarettes, and related products through
vending machines. Annually, in the course of its business op-
erations, Capital Vending derives gross revenues in excess of
$500,000 and purchases and receives at the Ravena facility
goods and materials valued in excess of $50,000 which are
shipped directly from points located outside the State of New
York. Respondent admits, and I find, that Juice Time, Offi-
Serve, and Capital Vending are each an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
At the outset of the hearing, the parties stipulated that
Juice Time, Offi-Serve, and Capital Vending collectively
constitute a single employer under the Act. In their answer
Juice Time, Offi-Serve, and Capital Vending admitted that
Mayone is their chief operating officer, a partner in Juice
Time and Capital Vending and an officer and sole share-
holder of Offi-Serve, that their employees share certain terms
and conditions of employment, that Juice Time and Offi-
Serve share certain warehouse premises and that all three
employees share certain premises as business offices. By vir-
tue of the foregoing stipulations and these facts. I also find
that Respondent is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The consolidated complaint also alleges, Respondent ad-
mits, and I find, that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Work Force at the Beginning of
May 1988
As of May 9, 1988,3 Respondent employed 18 employees,
excluding Mayone. Three, Rick Sanchez, Malcolm Carter,
and Joseph Micelli, were drivers for Juice Time who deliv-
ered juice: Sanchez, as a route driver filling vending ma-
chines and Carter and Micelli delivering juice to institutional
schools. Carter and Micelli received one-time commissions
for obtaining new customer accounts for juice deliveries.
Juice Time also employed a bookkeeper, Kelly Millett, who
worked at a desk at the Ravena facility. The drivers handed
in their paper work showing route collections, deliveries, and
the like to Millett on a daily basis. The Juice Time drivers
were supervised by Grant Lewis, sales manager, who set up
and assigned their daily work schedules based on his busi-
ness judgment. Lewis, who worked a regular 8 a.m. to 5 p.m.
day in contrast to the drivers who work either 7 a.m. to 3:30
p.m. or 8 a.m. to 4:30 p.m., had authority to recommend dis-
cipline of the drivers and Mayone relied on his recommenda-
tion. In contrast to the drivers, Lewis regularly received a
sales commission averaging $200 per week in addition to his
$300 salary based on weekly sales. The drivers received
wages ranging between $275 and $325 per week for 40
hours work. Lewis was in charge of day-to-day operations of
Juice Time and reported to Mayone daily to discuss oper-
ations. Lewis also assigned drivers to duties with the other
entities after consultation with Mayone and adjusted routes to
cover for vacations. Mayone’s son, Mayone Jr., partner with
his father of Juice Time, and in charge of the Fun Connec-
tion operation, testified that he and Lewis had similar respon-
sibilities in running their respective entities. The parties also
stipulated that Mayone Jr. was a supervisor within the mean-
ing of the Act.
On May 9, Offi-Serve employed four drivers who serviced
accounts and distributed coffee burner units, coffee, and re-
lated supplies, soda for vending machines and Deer Park
water. They were Richard Thrush, Mark Racine, Steve Wil-
kins, and Steve Colletti. Wilkins and Colletti solicited new
accounts receiving one-time commissions if successful. Offi-
Serve also employed a bookkeeper, Karen Libertucci, who
worked at a desk located at the Ravena facility. Wilkins and
Colletti used desks in the same area at the same facility to
solicit amounts and do their paperwork before and after
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Lester testified that the reason he included the utility classification in his
demand letter to Respondent was that based on his experience in the industry
with other employers under collective-bargaining relationship with the Union,
utility men, unlike Giacomini, service machines, perform warehouse duties,
light mechanical work, and fill in as a driver on routes, just as some of the
route drivers did. Lester also noted that he included the cashier classification
because at the union meetings, it was represented to him by Steve Benjamin,
the cashier who involuntarily left Respondents employ prior to the strike, that
he also went on the road as a vending machine operator up to 2 hours a day.
There is no evidence that the cashier subsequently hired by Respondent after
the union demand performed similar duties.
5 Par. XII of the consolidated complaint alleges three separate appropriate
units, one for each Respondent entity, and each including only driver/service-
men, employed only at the Ravina facility. The units described in these letters
appears infra and are identical to the unit composition contained in the alter-
native overall unit alleged as appropriate.
going out on the road in their trucks. Offi-Serve and Capital
Vending also employed a repairman, Jeff Dowd, who worked
in the shop in the service department at the Ravena facility
on the two and three burner coffee units supplied to cus-
tomers by Offi-Serve as well as at customer locations repair-
ing the vending machines installed at Capital Vending cus-
tomer premises. Dowd was paid $175 per week by Offi-
Serve and $200 per week by Capital Vending. Capital Vend-
ing also employed five drivers, who serviced vending ma-
chines with juice, one of whom, Wilkins, also did deliveries
for Offi-Serve. The four others were Harold Turk, Bob
Wyant, Kenny Cymbalisty, and Jim Macie. They loaded their
trucks on a daily basis with juice warehoused at the
Coeymans’ facility. Respondent employed no separate ware-
housemen. The drivers and repairman Dowd had work con-
tact daily as the drivers reported to him repairs or replace-
ment parts needed on the equipment. Other Capital Vending
employees were Mayone Jr., supervisor; Janice Ingram,
bookkeeper and typist; and Bruno Giacomini, a utility person
who cleaned the Ravena facility, ordered the coin wrappers,
and made daily deposits of the coins in Respondent’s bank
accounts. As of May 9, Giacomini worked approximately 20
hours per week, at an hourly rate of $3.75, starting at 6 a.m.,
vacuuming and cleaning the premises, making coffee, and
then at 9 a.m. depositing coins in two accounts maintained
at two separate banks in town. He had no contact with the
drivers.
Up to 2 to 3 weeks prior to May 9, and then starting in
mid-May and thereafter, Respondent employed a counter or
cashier, who worked from 8 a.m. to 2:30 p.m., machine sepa-
rating and wrapping the coins collected from vending ma-
chines by Capital Vending drivers in a separate, closed room.
The counter had no contact with the drivers and did not
check collections of coins for accuracy against submitted in-
voices.
During the hearing, the parties stipulated that an appro-
priate bargaining unit at the Respondent’s place of business
alleged in the complaint would include the following classi-
fications: Driver/servicemen, vending machine mechanics,
and plant clerical employees. The Respondent also took the
position that in addition to the classifications described, the
utility (or maintenance) position currently held by Giacomini
would be included in the stipulated unit. With that addition,
it was agreed by the parties that the unit consisted of no
more than 17 employees. The Union and the General Coun-
sel dispute the inclusion of the maintenance position on the
ground it does not share a community of interest with the
drivers and would, accordingly, limit the unit to 16, includ-
ing the bookkeepers. Other differences as to appropriate unit
concern placement of Grant Lewis, the supervisor, the book-
keepers, and the cashier and will be discussed in the analysis
portion of this decision.4
At the hearing, I also granted the General Counsel’s mo-
tion to amend the complaint to allege, alternatively, with re-
spect to the bargaining unit that an overall unit consisting of
all route salesmen, drivers, mechanics, cashiers, warehouse-
men, and utility men employed at the Employer’s facilities
in Ravena and Coeyman, New York, constitute an appro-
priate unit under Section 9(b) of the Act. I further granted
a second motion to amend the allegations in paragraph
XII(a), (b), and (c) to conform to the Union’s bargaining de-
mands set forth in the letters that its witnesses testified were
hand delivered to the Mayones, father and son, on May 9.5
B. The Union’s Organizational Drive
On April 13, Leo Lester, secretary-treasurer and principal
executive officer of the Union met employee Micelli on the
road in Albany, and at lunch that day solicited Micelli who
signed and returned a combination application for union
membership and authorization card and took a dozen blank
cards and pamphlets for distribution to other employees.
Thereafter, Micelli distributed cards to individual employees
who signed in his presence and returned them to him. Micelli
obtained cards in this manner on April 18 and 19 from
Carter, Colletti, Cymbalisty, and Sanchez. Micelli testified he
received an undated card from Wyant on or about April 20
who signed and returned it to him that day. Another card,
signed by Thrush and dated April 19, was solicited by
Sanchez but returned by Thrush directly to Micelli.
Lester, himself, solicited cards directly from Racine on
May 4 and Turk on May 9, aside from the card Micelli
signed on his initial organizing approach. Joe Wood, the
Union’s president, obtained a signed card from Macie dated
April 27.
Thus, by May 9, 10 of the 12 rank-and-file route drivers
and salesmen mechanics, drivers and warehousemen then
employed by Respondent, had signed cards applying for
union membership and authorizing the Union to represent
them in collective bargaining with their Employer. While Re-
spondent cross-examined witnesses with respect to the cir-
cumstances surrounding the signing of some of the cards,
and objected in at least two instances, those involving the re-
ceipt of Wyant’s undated card and of Thrush’s card signed
by him outside Micelli’s presence but handled over by
Thrush himself to Micelli, I was satisfied as to the authen-
ticity and the proximate date of execution of these cards
among the others which were not attacked, and received
them all in evidence. Respondent has not argued at the hear-
ing or in its brief, and, it seems to me, could not legitimately
contend that the cards did not represent the signers’ designa-
tion of the Union to represent them or could not be counted
in determining the Union’s majority status among these em-
ployees, on the date of May 9 that it requested bargaining.
While the card solicitations were underway, the Union
held its first organizational meeting on April 27 at the Bea-
ver Lodge in West Athens, New York. Nine employees at-
tended. A second meeting was held on May 4, at Brennan’s,
a restaurant with bar in Greenville, New York. Again, nine
employees attended. At this meeting, Lester and Wood pre-
745FUN CONNECTION & JUICE TIME
sented options to employees in pursuing collective-bargaining
status with Respondent, among them filing an election peti-
tion and/or demanding bargaining, offering the Employer an
opportunity to check the Union’s majority status as dem-
onstrated by the cards, and, if Respondent refused to recog-
nize and bargain, then striking to secure such status. A vote
was taken by the employees to pursue the latter course, and
strike, if necessary, on a rejection of the Union’s demand. It
was agreed that the union agents and employees would meet
at the Ravena facility on Monday, May 9, to follow this
course of action.
C. Respondent’s Conduct in Alleged Violation of the
Act Commencing on May 9
According to Micelli, on May 9, he reported to the Ravena
parking lot, at between 7 and 7:15 a.m. where about five
other employees were already waiting in a group, along with
Lester and Wood. At this point, Mayone Jr. pulled up to the
lot in his car, got out and came over to the group. Lester
told him he was from the Union and the men wanted him
to represent them. Mayone Jr. looked at the men, shook his
head, and said, ‘‘What the hell is going on? All you guys
cut the crap and go back to work.’’ When no one left the
assembled group, he got back in his car and drove off to an-
other area to park and go in to the office. By this time, the
remaining respondent route drivers had arrived and were con-
gregated in one area of the lot. About 15 minutes later,
Mayone Sr. pulled up, got out of his car and asked what was
going on. Lester went up to him, extended his hand and in-
troduced himself. After Lester identified himself as being
from Local 669 and seeking recognition of the Union on be-
half of the men, Mayone Sr. pulled his arm back. Lester
handed him some papers, later identified as being demand
letters and recognition agreements. Mayone Sr. took them,
and said, ‘‘As long as I own this business, there ain’t going
to be no goddamned union here.’’ These remarks were made
in the presence of all the Respondent’s drivers in the parking
lot, who had all arrived by this time and were anywhere
from 1 to 15 feet from Mayone Sr. He then took them, left,
and went into his office.
About 5 minutes later, Mayone Sr. came back out.
Mayone Sr. told the assembled employees, ‘‘You’re all
fired.’’ The men just stood there. Lester then told him, ‘‘I’ll
give you an hour to an hour and a half to recognize the
Union. If not, we’re going to take out picket signs and pick-
et.’’ Mayone Sr. refused to recognize the Union. Instead, as
related by Micelli, Mayone Sr. pulled him aside by the
shoulder and said, ‘‘What are you doing? Come inside. We’ll
talk, we’ll work things out.’’ Micell told him, ‘‘No, this is
what the men want. I have to stick it out, stay with the
men.’’ Micelli also saw Mayone Sr. approach at least two
other employees. One was Bobby Wyant. He did not hear
this conversation, only a report of it made later by Wyant
of an alleged promise of benefit, testimony regarding which
was stricken from the record on motion made by Respond-
ent’s counsel and not opposed by the General Counsel.
Micelli did hear Mayone Sr. pull Hark Racene aside and tell
him, ‘‘I’ll get that car loan. I’ll co-sign for you. I’ll get that
loan for you.’’ Mayone Sr. went back into his office, the
men got their picket signs, went in front of the office off the
street, and started picketing, and Mayone Sr. kept knocking
at the window to get their attention and motioning to try to
pull the pickets in. The picketing continued through the
workday. The picket signs contained the legend ‘‘Local 669
on strike for recognition’’ followed by the names of each in-
dividual Respondent.
Micelli testified he picketed and struck Respondent be-
cause Mayone Sr. did not recognize the Union, because he
fired all the men, and he no longer had a job.
On Tuesday, May 10, all the drivers again assembled in
the parking lot around 7 a.m. and continued to picket the
premises on the sidewalk in front of the offices. At one point
during the day, Micelli said he heard a crash in the back of
the building. He and some others went to the side of the
building and saw Mayone Jr. had dropped some cases at a
loading area to the rear. Mayone Jr. saw the pickets and
called up to them, ‘‘All you guys, all you are the shit under
my feet. I walk upon all of you.’’ Micelli went back to pick-
eting and saw Mayone Sr. continue to knock on the window
from inside the offices trying to call pickets in.
On the following day, May 11, Micelli was again outside
Respondent’s office entrance picketing with other drivers.
That day, some of the men crossed the picket line and went
in to the office to go back to work. Micelli went into the
office later that day at Mayones Sr.’s request, asked if he
could come back and Mayone Sr. told him that he had re-
placed him. When Micelli asked, ‘‘What does that mean, am
I fired?’’ Mayone Sr. replied, ‘‘Take it any way you want.’’
As of May 11, no new employee had been hired to fill his
position, although Mayone Sr. later testified that on May 12
he hired a Preston Nedeau to start May 13 to replace Micelli
as a driver for Juice Time.
Picketing ceased after the third day on May 11.
In early June, after Micelli’s unemployment insurance ap-
plication had apparently been rejected because of Respond-
ent’s opposition, he telephoned Mayone Sr. Mayone Sr. ex-
plained that a misunderstanding, involving another employee
who had been fired just prior to the strike, had been resolved
and Micelli’s claim should have no further problems.
Mayone Sr. then asked Micelli, ‘‘Are you still seeing Mr.
Leo Lester?’’ Micelli said, ‘‘No.’’ Mayone Sr. then told
Micelli he did not want him to call up employees any more
and harass them about the Union. Micelli denied he had
called any employees about the Union.
On or about Wednesday or Thursday, June 15 or 16,
Micelli received through the mails, a letter addressed to him
from Mayone Sr., informing him that if he desired to return
to work, to report at 7:30 a.m. on June 20. Mayone Sr. ex-
plained that the offer was made on advice of counsel and
without prejudice to the Company’s position in the NLRB
proceeding. Miceill did return to work on June 20. He re-
ceived no compensation for lost wages for the period from
his separation from employment on May 11 to June 20.
In or about the first week of October, right after work and
in Mayones Sr.’s office, Mayone Sr. told Micelli, ‘‘Joe, I
really appreciate if if you would get your statement from the
NLRB Board.’’ It is unclear how Respondent knew of
Micelli’s submission of any statement or statements to the
Regional Office. Yet, Respondent’s counsel, knowledgeable
about Board procedure and aware of Micelli’s inclusion as
an alleged discriminatee, along with nine other employees, in
paragraph VII of the complaint, and his adherence to the
Union while other employees returned to work under cir-
cumstances alleged as unlawful inducements in the complaint
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 In making credibility resolutions as to this witness and others, I have
weighed the attacks made on their credibility during their cross-examinations
as well as the contrary testimony by other witnesses, including Respondent
witnesses, to be discussed, infra.
and about which evidence was adduced, to be discussed,
infra, inferred correctly that Micelli had cooperated in the
Region’s investigation of the charges. In any event, Micelli
provided three affidavits to the Region, dated May 12 and
16 and October 18.
Mayone Sr. explained that he wanted the statement so his
lawyer could prepare, so they beat this thing together. The
consolidated complaint, which had issued on June 30, was
initially scheduled for hearing on August 30, but was re-
scheduled first to October 3, and then, by order of the Direc-
tor dated September 23, was rescheduled to January 23,
1989, when hearing commenced. Micelli asked how he
should go about getting it, should he call up Lester. Mayone
Sr. said, ‘‘No, no, stay away from that man. He’s bad
news.’’ When Micelli again asked him how to go about it,
Mayone Sr. pulled out an envelope with the NLRB Regional
Office letterhead, ripped it off and gave it to Micelli. When
Micelli then asked what he could do for him, Mayone Sr.
said, ‘‘Well, let’s just stick together and beat this thing to-
gether.’’ During the course of their discussion, Mayone Sr.
kept asking Micelli if he was playing both sides, which
Micelli denied doing. A few days later, Mayone Sr. asked
Micelli if he had sent out the letter to the Board. Micelli re-
sponded that he had not. Mayone Sr. then said, ‘‘Well, when
you get back from vacation, you should have it and bring it
in to me.’’ At no time, according to Micelli, did Mayone Sr.
ever assure him that he would not be subject to any reprisals
for his failure to provide the affidavit. Neither was Micelli
informed that the request for the affidavit was voluntary.
During Micelli’s cross-examination, Respondent’s counsel
sought to discredit his testimony by attempting to show that,
in fact, Micelli had his conversation with Mayone Sr. about
being replaced on May 12 rather than May 11. That con-
versation took place on the day Micelli provided the Board
agent with his first affidavit. In the affidavit, Micelli states,
‘‘Today, Mayone called me into his office to tell me that he
had replaced me.’’ At first, Micelli agreed that the date he
signed and swore to the contents was May 12. Later, Micelli
reaffirmed his earlier testimony that the conversation with
Mayone Sr. occurred on the third and last day of the pick-
eting and strike which was May 11 and maintained this posi-
tion in the face of further vigorous cross-examination. It ap-
pears that Micelli was told of his ‘‘replacement’’ on May 12,
the date that he and Mayone Sr. went with Lester to the
Board office from outside the Ravena facility. Micelli’s error
in this regard does not diminish the credible nature of his
overall presentation of the facts as he recalled them.
In other respects, Micelli demonstrated firmness and con-
sistency in defending his credibility from attack. Thus,
Micelli maintained that Mayone Sr. used the phrase ‘‘God
damn’’ in rejecting a union relationship while he owned the
business, acknowledging that while he was aware Mayone
Sr. was a religious person, so was he. Furthermore, while he
had learned from the pamphlets distributed by the Union that
the law prohibited his employer from firing him for striking,
he got fired any way in the parking lot on the first day of
the strike, and was also later told by Mayone Sr. on May 11
to take it, his being replaced, any way he wanted to.
In certain respects, Micelli strengthened his credibility on
cross-examination, by explaining he had collected the em-
ployees’ keys to the trucks and warehouse on Monday morn-
ing, May 9, as they had agreed to do at the union meeting,
and then handed them in a bag to either Mayone Junior or
Senior. Micelli was also firm in his recollection that on May
9 when Mayone Sr. told them they were all fired and then
tried to pull guys off to the side, he did not tell them he was
going to get replacements for them. Micelli also testified,
without objection, on cross-examination that the day, May
11, that employee Steve Colletti came out of the office after
having gone into work and asked Lester for the return of his
union card, he did not hear their conversation but he did hear
other employees standing nearby who also crossed the picket
line and went back to work say to each other, ‘‘He’s offering
something, we’re going to go in and see what he has to
offer.’’ Among these employees were Wyant, Sanchez, and
Thrush.
Based on my evaluation of the forthright, direct, and con-
sistent nature of Micelli’s testimony as described above, I
credit his recital of the events preceding the strike, during the
strike and picketing, and of his own exchanges with Mayone
Sr. then and later. I do this with the knowledge that in cer-
tain respects other General Counsel’s witnesses differ from
Micelli in certain details of their presentation of the cir-
cumstances of May 9, yet they generally corroborate each
other as to the basic events of that day, including the
Union’s demands, and the Respondent’s immediate reactions
expressed by both Mayones, leading inevitably to the strike
and picketing, given the Union’s and employees’ resolve ex-
pressed at the meeting preceding the event.6
James Macie testified to the events of June 9, substantially
corroborating Micelli’s recital. Macie did not mention
Mayone Sr.’s promise to keep his business union free on his
initial nondirected recital. In Macie’s recollection when
Mayone Sr. returned to the parking lot after receiving
Lester’s papers demanding recognition, he said the men were
all fired and would be replaced. Macie then reported that
Mayone Jr., who had returned with his father, pulled him off
to the side, and wanted to know why they were doing this.
Macie said they wanted a Union, they were looking for sick
days, personal days, hospitalization, more pay, and some job
security. Mayone Jr. then told Macie he would take care of
him; give him a little more money if he would just come in.
Macie told Mayone Jr., ‘‘No, he would rather stick with ev-
erybody.’’ It will be recalled that Macie had been employed
by Capital Vending and that Mayone Jr. had been his super-
visor.
Macie, just as did Micelli, placed all the driver employees
in the immediate area just feet from each other and from Leo
Lester as he and Mayone Sr. exchanged words. The only ex-
ception appears to have been Harold Turk, who remained
seated in or at a car a short distance away from the rest. As
we shall see, Turk was personally approached by Mayone Sr.
to come in to work. While he declined at the time, he did
not engage in any picketing and returned to work shortly
thereafter. Turk was the most senior by far of all the drivers.
At that time, Lester told the Mayones he would give them
about half an hour before they began to picket if the Com-
pany did not recognize the Union. After half an hour, the
picket signs were picked up and the men went out front to
organize the picket line. Macie also picketed to obtain rec-
747FUN CONNECTION & JUICE TIME
ognition and to protest his firing. He and the others remained
picketing to 4:30 p.m.
The following day, May 10, the employees again picketed
the whole day. Mayone Sr. tapped on the window trying to
call people in, but without success.
At some point early in the morning of the following day,
Wednesday, May 11, as the same employees had gathered to
picket in front of the Ravena facility, Macie heard Bob
Wyant and Steve Colletti say they were going back in;
Mayone Sr. had taken care of them and that they believed
they should go and talk to them. This testimony was not re-
ceived for its truth but for the purpose of showing the state
of mind of the witness. On hearing these remarks, Macie,
with Rick Sanchez, followed Wyant and Colletti as they ap-
proached the office entrance to the Ravena facility. Both
Mayones were standing at the entrance, with Mayone Jr. in
front and Mayone Sr. a few feet to his rear. Wyant and
Colletti started to go in past the Mayones’ when Mayone Jr.
said we would have to sign a card saying we did not want
the Union anymore. Mayone Sr. said nothing to countermand
his son. At that point, Macie told the Mayones’ he did not
want to go any further. He turned around and went back to
the crowd. Sanchez followed Wyant and Colletti into the fa-
cility. Macie added that Mayone Jr. also asked him about the
union cards and he told Mayone Jr. that Lester had them.
Macie confirmed that the picketing of Respondent’s facil-
ity ceased after this third day, Wednesday, May 11.
Macie also received timely the same letter forwarded to
Micelli offering reinstatement on June 20. A few days before
that date, Macie went to the Ravina facility and informed
management that he had gotten a better job starting around
July 6 or 8, and that he would not be coming back to work.
Macie received no pay for the period from the first day of
picketing when he and all other employees were told they
were fired until he responded to the company letter.
During his cross-examination, Macie reaffirmed his earlier
testimony that on May 9, Mayone Sr. told the assembled em-
ployees they were all fired and would be replaced, rather
than the language that Respondent counsel suggested that
Mayone Sr. told them they were fired or replaced. Macie
also corroborated Micelli that on Mayone Sr.’s first approach
to the employees in the lot on May 9, Leo Lester handed
Mayone Sr. three sets of papers seeking recognition of the
Union by each of the Respondent entities. He had previously
seen these papers at the last union meeting preceding the
strike held at Brennan’s. Mayone Sr. took these papers and
went back to the office with them before returning and firing
the men. One set consisted of three demand letters dated
May 9 on union letterhead and signed by Lester, one each
addressed to Mayone Sr. for Capital Vending, Juice Time,
and Offi-Serve, claiming designation as majority representa-
tive of each entity’s route salesmen, mechanics, cashiers,
warehousemen, and utility men, offering to prove that status
by an independent third party card check and demanding rec-
ognition and bargaining. The other set provided blank space
for each entity to recognize the Union as exclusive bar-
gaining agent for each group of employees, to agree to com-
mence immediate negotiations, on May 11, and to agree to
a recognition clause, and to union security and union check-
off by reference to enclosed provisions (not provided to
Mayone Sr.).
Macie did acknowledge, after his recollection was re-
freshed by his pretrial affidavit, that before Mayone Jr. came
over to the employees in the parking lot the morning of May
9 he had some words with Jeff David outside the facility
which Macie could not hear because of their distance from
the assembled employees.
Macie also recalled on specific questioning during cross-
examination that on May 10, he had seen Mayone Sr. open
the front door, grab a picket he could not identify, and urge
him to come inside but the picket refused.
Macie insisted that he was never told by Mayone Sr. or
anyone else in management that he had been replaced. He
did recall coming to the facility on Friday, May 13, to pick
up his last pay and return his uniform. The day before,
Thursday, May 12, he and Micelli had gathered in front of
the facility for a time. They were the only two employees
among the full complement that struck on May 9 who had
either not returned to work or had not been reinstated as em-
ployees by May 12.
Macie was a highly believable witness, who sought con-
scientiously to tell the truth and I credit his testimony.
The General Counsel called four other witnesses. Em-
ployee Malcolm Carter testified to his participation in the
union meetings and the strike through the third day, May 11,
after which he returned to work the following day, May 12.
As explained by Carter, by the third day the strike was fall-
ing apart. The evening of May 11 he received a call from
Rick Sanchez informing him that everybody else is going to
work and suggesting he call Peter (Mayone Sr.) who wanted
him back. Carter related that the conversation with Mayone
Sr. consisted of his making Mayone Sr. aware that he was
coming in the following day and Mayone Sr. voicing his ap-
proval and indicating there was no problem. At this point,
Carter denied anything else was said and when asked specifi-
cally whether anything was said about requesting the return
of his union card, he testified that Rick Sanchez told him
that Steve Colletti thought it was a good idea to get the cards
back. Carter was then shown his affidavit which he acknowl-
edged having given during the investigation of the instant
charges. It had been sworn to on June 9 in Mayone Sr.’s of-
fice and he had been made aware by Mayone Sr. he was
going to be meeting the Board agent at the premises that
day. At paragraph 9, Carter swore to the following:
On the evening of May 11, I decided to return to
work and phone Mayone, Sr. I wanted to return to
work. He said, sure my job was there but that I would
have to request my Union card be withdrawn. He said
employee Colletti had some forms. There was no dis-
cussion about wages or benefits I would receive.
The affidavit contains no reference to Sanchez as the indi-
vidual who told him to request the return of his card.
Carter denied that this paragraph was truthful in spite of
the fact that he initialed the bottom of each page in the pres-
ence of and ‘‘possibly’’ at the request of the Board agent be-
fore swearing to the truthfulness of its contents. Carter
claimed that he did not read it but that the Board agent read
it to him, as it was being written before he initialed each
page and swore to the document as a whole. Carter com-
plained that the Board agent’s handwriting was very poor,
yet he was able to read without error that portion of the para-
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The General Counsel also sought to examine Carter as a hostile witness
pursuant to Sec. 11(c) of the Federal Rules of Evidence. Carter’s rejection of
this significant item of evidence in his affidavit as well as his later testimony
establishing his identity with Respondent in its campaign to defeat the Union
fully justified the ruling I made that Carter was hostile within the meaning
of the Rule.
graph in which Mayone Sr. told him he would have to re-
quest withdrawal of his union card and Colletti had some
forms. Although Carter agreed he did not correct the agent
after he read this paragraph, he asserted that ‘‘apparently he
[the Agent] didn’t write it the same way . . . he was saying
it . . . Peter didn’t say anything about the cards. It was Rick
Sanchez.’’ Carter’s explanation is not worthy of belief.7 I
find that paragraph 9 of the affidavit in so far as it relates
to the substance of his conversation with Mayone Sr. on the
evening of May reflects the truth and I credit it as against
Carter’s denial. Rule 801(d)(1) of the Federal Rules of Evi-
dence permits the prior inconsistent statement of a witness,
subject to cross-examination and given under oath subject to
the penalty of perjury at a trial, hearing, or other proceeding,
or in a deposition, to be admissible as substantive evidence
and not merely to impeach the witness’ veracity. In so con-
cluding, the advisory committee’s note accompanying this
Federal Rule recognizes that the trier of fact with the declar-
ant before it can observe his demeanor and the nature of his
testimony in weighing the truth or falsity of his testimony
and the inconsistent prior statement. In accord: Snaider Syrup
Corp., 220 NLRB 238 fn. 1 (1975); Starlite Mfg. Co., 172
NLRB 68, 72 (1968); California v. Green, 399 U.S. 149, 155
(1970); De Sisto v. United States, 329 F.2d 929, 933 (2d Cir.
1964), cert. denied 377 U.S. 979 (1964).
Carter went on to explain that when he returned to work
on Thursday, May 12, Steve Colletti gave him a form off a
stack, telling him it was a good idea to get the card back,
that he would not be obligated to the Union, and there would
not be fines if there was picket line crossing. The form that
Carter (and other employees) signed had the employee’s
name and address typed in the upper left corner followed by
a blank space to be filled in by the employee, and a request
to withdraw his application to Local Union 669 effective im-
mediately, followed by lines for the employee’s signature
and date. Carter signed his form on May 12 and handed it
back to Colletti who was going to mail it registered to the
Union in spite of a conflicting statement in his affidavit in
which he swore that his wife mailed it in for him.
Carter testified that he was subpoenaed by the General
Counsel to testify at the instant hearing, and that he refused
the Union’s request that he meet with counsel for the Gen-
eral Counsel the day before his testimony. Carter also ac-
knowledged that after receiving a copy of his affidavit given
to the Board, pursuant to a letter request made on August 22,
he later asked Mayone Sr. if he wanted to look at it and then
gave it to him, and that he did so to help Mayone Sr.
As to the employees’ receipt of additional benefits on their
return to work and their disavowal of union adherence and
withdrawal from union membership, Carter testified as fol-
lows:
Prior to the strike, he had individual coverage under
the Company’s Blue Cross/Blue Shield group medical
plan for which he paid one half of the premium. Some-
time during the week of May 16 immediately following
his return to employment, the Company changed his
coverage to a family basis and Carter ceased paying
any premium.
Carter noted he had never driven a company van on the job
but always drove his car to and from work.
Carter further testified that he had been driven to the hear-
ing the day before by Mayone Sr. in Mayone’s personal car.
Sometime the prior week, while working twice out of the fa-
cility, driving Supervisor Grant’s car, at Mayone Sr.’s re-
quest, he met with Respondent’s lawyer to prepare for the
hearing. Also present in the lawyer’s office were Mayone Sr.
and Rick Sanchez. Carter was later paid for this time away
from work.
During his examination by Respondent’s counsel, Carter
was careful not to deny that Mayone Sr. told the assembled
employees on May 9 that they were all fired. Carter did not
hear it—he was not in Mayone Sr.’s immediate vicinity.
Carter did corroborate prior General Counsel’s witnesses that
Lester gave Mayone Sr. a piece of paper and told him they
would be striking for recognition and that everybody agreed
to go out on strike at the second meeting a week prior. As
to his receipt of additional medical coverage, Carter ex-
plained to Respondent’s counsel that he understood a few
weeks before the strike, there had been discussions between
Mayone Sr. and the employees who drove Respondent’s vans
to the effect that when the Company got new vans it was
purchasing, they would no longer be able to drive the vans
home overnight as they had, but, the senior drivers would re-
ceive their choice of a small raise or paying their hospitaliza-
tion to make up for the extra cost of the gas they would be
using.
Irwin Wood, the union president, testified that when
Mayone Jr. came over to the employees early on May 9, he
told them, ‘‘You’ll never have a union here. You’re all going
to be fired, wait ’til my father gets here.’’ After Mayone Sr.
came up, took Lester’s papers, went inside and then came
out again, he responded to Lester’s inquiry as to whether he
was going to recognize the Union by saying ‘‘no way.’’
Mayone Sr. then approached one employee saying he wanted
to talk to him. Lester responded by announcing the employ-
ees should stay together as a group. Wood recalled Mayone
Sr.’s face turning red and in response to another request by
Lester to recognize the Union, saying, ‘‘As far as I’m con-
cerned, you’re all fired.’’ Wood then said, ‘‘Okay, you’re fir-
ing these guys, we’re going to strike.’’ He turned around and
opened up the trunk of his car and exposed the picket signs.
Mayone Sr. looked in, saw them, and then went over to at
least three employees that Wood could see and started grab-
bing them aside, telling them in turn he wanted to talk to
them and that he had been fair with them. One employee he
approached was Harold Turk standing by a car. Harold told
him, ‘‘I’m not going to get involved. I’m not going to strike,
but I just don’t want any involvement. If the guys want to
do this, fine, but I’m going to stay out of this completely.’’
After approaching two others, without success, Mayone Sr.
said, ‘‘Well, you guys are all going to be fired,’’ and he
stormed off. Lester had told him he would give him to 9:30
a.m. to recognize the Union. Wood left the scene at that
point but returned around noon when picketing was taking
place in the front.
749FUN CONNECTION & JUICE TIME
Wood testified that during both of the exchanges between
Lester and Mayone Sr., the employees were gathered in a
group 10 to 15 feet across between two parked cars. Both
Lester and Mayone Sr. spoke up in a fairly loud way. Wood
also confirmed that Lester had handed Mayone Sr. two sets
of papers, covering the three separate companies, which had
been previously prepared. I have previously credited Micelli
and Macie, and I now credit Wood, whose testimony cor-
roborates that of both employees but provides slightly greater
specificity and clarity.
Wood also corroborated earlier testimony from Micelli re-
garding Mayone Jr.’s intemporate remarks made in the pres-
ence of striking employees on the morning of May 10 as he
was unloading soda off a hand truck. When the cases fell to
the ground, Wood called over ‘‘You’ve got guys out here.
You recognize us, these guys will go back to work. You
won’t have to do this stuff.’’ Mayone Jr. came forward, to-
ward Wood, pointed a finger close to his face, and in an
angry tone, said, ‘‘There’s no way that these guys are going
to come back. As far as we told you, they’re fired.’’ When
Wood said he could not do that, Mayone Jr. responded,
‘‘These guys are nothing but shit.’’ This testimony, which
expands on that previously provided by Micelli, but which
is consistent with it, is also credited.
During his cross-examination, Wood further recalled Les-
ter telling Mayone Sr. when he handed him the papers that
‘‘We’re the Union, and we’d like to represent the employees
here. We have a majority of the cards and we have no prob-
lems getting a priest or somebody here to review the cards
and to recognize us.’’ Wood further testified that when
Mayone Sr. spoke that morning to his most senior employee,
Harold Turk, he told him, ‘‘Come on in. Come back to work.
We’ll make things right whatever your problems are.’’
Leo Lester also testified to the events of May 9. Prior to
either Mayone Sr. arriving on the scene, he solicited a union
authorization card from Harold Turk in the company parking
lot. Lester testified to Mayone Jr.’s comments upon being ap-
prised of the situation involving the union adherence of the
drivers. When the employees responded to his entreaty to
enter the facility to go to work by informing him they want-
ed him to talk to their union representative who was present
and they wanted to be represented by the Union, Mayone Jr.
started cursing and threatening, ‘‘You f— guys aren’t no-
body. We ain’t going to have a f—ing union. You come here
or else you’re all fired. Come in or you’re all fired.’’ When
Lester sought to point out the men had rights which he
should not take away, Mayone Jr. went off with the com-
ment, ‘‘We’ll see about this.’’
Lester recalled Mayone Sr. coming on the scene and im-
mediately going over to Turk, placing a hand on him and
saying to him, ‘‘I’ve been good to you. What are you doing?
Come on, I want to talk to you.’’ Turk told him, ‘‘No, I’m
with the group. I’m staying with the group.’’ Turk also said,
‘‘As long as everybody else is joining, I’m joining too. I’m
sticking with the guys. About time they got a union in here.’’
Mayone Sr. then approached other employees, among them
Steve Colletti, Joe Miceill, and Malcolm (Bill) Carter, who
rode together, Bob Wyant and Rick Sanchez, grabbing them
off to the side and repeating the entreaties, ‘‘I’ve been good
to you; please don’t do this time to me; I’ll take care of you;
what do you want, I’ll give it to you; come on in.’’ Lester
commented to Wood, ‘‘This is pathetic, here is a man who
violated rights, now he’s coming back this way to people.’’
When handing Mayone Sr. the sets of papers, including
the bargaining and recognition demands, Lester said, ‘‘Here
is [sic] some of the papers. We are requesting recognition—
the bargaining unit people are here—also some language
which you will have stipulated. Look it over, get in touch
with your lawyer. I’ll give you to 9:30. Get back to us.’’
Mayone Sr. did not respond to the demands and at 9:30 a.m.,
the picketing commenced.
Lester also recounted Mayone Sr.’s statement to the effect
that either they come back to work or they are all fired.
Mayone Sr. interspersed his attempts to approach and induce
individual employees to come in to work with the general
comment, ‘‘If you don’t come back, you’re all fired.’’
Lester also reported Mayone Sr.’s subsequent attempts to
induce employees to cross the picket line, leaving the front
door where he was stationed and reaching for individual men
as they picketed, going by the driveway, with the comment,
‘‘Come on, I want to talk to you. I’ll take care of you. Come
on.’’
While Lester’s testimony at first blush appears to be at
variance with Woods’ and Micellis’, particularly as to
Mayone Jr.’s comments on May 9, Turk’s response to
Mayone Sr.’s approach to him, and the sequence of events
before the picketing commenced, I find that these variances
are at best, superficial. It was consistent with Mayone Jr.’s
mean spirited and crude approach to the events of May 9 and
10 to have used the language attributed to him and to have
uttered the threats under the stress and shock of the moment
also attributed to him by Lester. Turk’s apparent support of
union solidarity by the men on the morning of May 9, if dic-
tated only by having just then signed a card in their presence
and an effort to straddle a thin line between wanting to sup-
port their unified effort and not wanting to hurt his longtime
employer, shows in the comments Lester attributes to him,
a stronger prounion sentiment than that portrayed by Wood.
I credit Lester’s version here. Finally, Lester was apparently
mixed up about Mayone Sr.’s failure to come back out after
handing him the Union’s demands. Nonetheless, his attrib-
uting the various remarks Mayone Sr. made to him, to the
employees in a group, and to individual employees, is gen-
erally corroborative of the other witnesses’ testimony, and is
credited.
Lester finally noted that at no time did Respondent bargain
with the Union over the raises in pay, or changes made in
its employees’ health insurance coverage or premiums.
During his cross-examination, Lester could not recall defi-
nitely but, he might have been approached by an employee
on May 11 seeking the return of his card, perhaps Rick
(Sanchez) or Rich (Thrush). Lester was certain that the em-
ployee was not Steve Colletti and in this he was mistaken,
his testimony in this regard being at variance with other Gen-
eral Counsel’s witnesses as well as that of Respondent’s wit-
nesses, including Colletti and Sanchez. To the extent that
Sanchez was with Colletti when the request was made,
Lester’s testimony was accurate. I do not deem this variance
significant or damaging to Lester’s credibility. Furthermore,
the subject matter was not covered on his direct examination,
Lester was recalling an incident which he apparently had not
reviewed prior to his testimony, and his testimony shows he
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was not all that familiar with the proper names and charac-
teristics of the individual employees who joined in the strike.
Lester also confirmed that before work on May 9, Jeff
Dowd, whom he knew from an earlier union campaign, ex-
changed words with Mayone Jr. before Mayone Jr. came
over to the group.
In his affidavit, portions of which were read into the
record—the document was later received in evidence—Lester
stated that Wood give at least a set of the demand letters and
perhaps the set of blank recognition agreements to Mayone
Jr. when he came over to the assembled group. In his affi-
davit, while Lester does not in haec verba state that he gave
another set of the papers to Mayone Sr. when he arrived on
the scene, its affidavit does contain the statement ‘‘I told him
we were prepared to picket but I would give him a chance
to think it over and look at the paper before doing so, so
that he would not be embarrassed in the community. He re-
fused to shake my hand and returned to the office.’’ [Empha-
sis added.] On the witness stand, after first denying this
transaction and then being shown his affidavit, Lester ade-
quately explained that Wood, who did not so testify but who
was also not asked specifically about the matter of his pro-
viding the papers to Mayone Jr., did give a set of the papers
to Mayone Jr., but because of Mayone Jr.’s anger and hos-
tility which might result in his destroying them, he, Lester
wanted to make sure his father knew what the Union was
seeking and he later personally gave another set, of which
they had numerous copies, to Mayone Sr.
More significant as a possible basis for impeachment was
Lester’s failure to include in his affidavit, any reference to
either Mayone Sr.’s firing of the employees or threat to fire
them if they did not return to work. Lester did clarify the
sequence of events, about which he had been unsure and in-
accurate on direct examination, now placing Mayone Sr’s.
statement about firing the men after receiving the Union’s
demands, orally and in writing, on his initial visit. Lester ad-
mitted the omission of any reference to this statement from
his affidavit. He also explained he may have omitted the ref-
erence because he had already attributed a like threat to
Mayone Jr. On balance, I do not consider this a contradiction
with his testimony at hearing, and, in view of the multiple
witnesses whose testimony includes these threats by Mayone
Sr. (aside from those, including Lester, who attributed a like
threat to Mayone Jr.), I credit Lester’s trial testimony as
against his May 12 sworn statement in this regard.
Mayone Sr. called as a witness by the General Counsel,
provided significant facts with respect to wage and other
benefits provided employees immediately on their disavowal
of the Union and their return to employment. Until March,
Respondent leased all of its vans used in the various routes
and businesses of the three entities. In March, Respondent
purchased six or seven new vans to replace the leased vans,
but delivery was not immediate in all cases so these same
employees continued to use leased vans until their new vans
were delivered. Mayone Sr. informed some of the drivers
prior to the union organizational campaign that when the new
vans came in they could no longer take the vans home a
practice that he bad tolerated with the leased vans but he
would compensate them for the loss, i.e., the cost of trans-
portation to and from work in their own vehicles which he
estimated at between $15 and $25 a week. Mayone Sr.’s
offer took the form of extra salary or Respondent paying the
full premium on the health insurance which they currently
shared at the employee’s option. At least four of the new
vans had not yet been delivered for Wyant Turk, Sanchez,
and Cymbalisty on May 14, 12, 13, or 16 when they returned
to work. Yet on their return these four were informed they
could no longer take the leased vans home and were offered
the option described.
Prior to the strike six employees, Wyant, Turk, Sanchez,
Thrush, Cymbalisty, and a Mike Meyers who quit on May
6, had been permitted to take company vans home.
The changes in these employees’ terms and conditions of
employment were made effective with the payroll week com-
mencing May 16 on their return to work. At Wyant’s re-
quest, he was permitted to take off from work 3 hours on
Wednesday afternoon. For working 4-1/2 days a week, in-
cluding a half day on Wednesday from 7 a.m. to 12 noon,
Wyant’s was salary reduced by $22 a week even though
Mayone Sr. estimated Wyant’s pay was $32 for the last 6
hours. In permitting the time off and in making this wage
determination, Mayone Sr. took into account the loss of use
of the van off work hours. Cymbalisty not previously cov-
ered, requested family medical coverage for which Respond-
ent now agreed to pay half or $25 a week; Cymbalisty
agreed to pay the other half. Unlike the situation with other
employees who had been paying half the premium on family
coverage, like Thrush, see infra, Cymbalisty had paid none
so Mayone Sr. was unwilling to provide him with a $50 ben-
efit, in contrast to the maximum $25 benefit provided Thrush
among others.
On his return, Turk received a pay raise of $20 per week
and was also permitted to continue to have the use of a van
to and from his home, as an exception to Respondent’s
change in policy because as Mayone Sr. described it, Turk
was a very special case because the following week would
be Turk’s 20th consecutive year in Respondent’s employ.
Thrush continued full family health coverage, now fully paid
for by Respondent whereas previously he had paid half—a
$25 a week benefit. Sanchez’ premium for individual cov-
erage, previously shared, was now paid by Respondent—a
$12.50 benefit and, in addition, he received a $10 raise.
Carter, like Thrush, now had his family medical coverage
fully paid by Respondent. Colletti received a $25 weekly sal-
ary increase.
During the presentation of Respondent’s case, Rick
Sanchez, whose appearance was not compelled by subpoena,
testified that on May 9, Mayone Jr. made no statement that
employees were fired, but he did show frustration when em-
ployees refused to heed his direction to return to work.
Mayone Jr. later told them, ‘‘I have a company to run here
. . . eventually, you will be replaced if you’re going to be
on strike; I’m going to have to replace you to keep the busi-
ness running.’’ Sanchez did not hear Mayone Sr. tell em-
ployees they were fired or that he would give them increased
wages or anything of benefit if they come in to work.
Sanchez also testified that when Lester offered the papers to
him saying, ‘‘Read these, take these and sign these,’’
Mayone Sr. did not want to look at them and . . .’’just
stayed away from the papers, and he did not want to talk to
Leo. But Leo said, ‘‘Anything you have to say, say it to
me.’’’ After prompting on the matter, Sanchez recalled that
after about 15 minutes Mayone Sr. came back out to the em-
ployees a second time before they picketed. ‘‘Mayone, Sr.
751FUN CONNECTION & JUICE TIME
wanted to talk to people. He didn’t want to talk to Leo. He
was kind of trying to talk to individuals, but people were
pulling away because we were told not to speak to him per-
sonally. We were told to be represented by Leo Lester.’’
Mayone Sr. had no success and went back inside. It was be-
fore he went back inside that he made the remarks about
eventual replacement. Mayone Sr. did plead with him
‘‘please come back to work.’’ Incredibly, Sanchez did not
hear his remarks made to other employees, even though they
were all within 10 to 15 feet of each other.
During the picketing that first day, Mayone Sr. came out
once in a while asking individuals on the line as they passed
by him, including Sanchez himself, if they were going to
come back to work. Receiving no direct answers, he went
back inside.
Sanchez and the others picketed again on the second day,
May 10. Questioned by Respondent’s counsel about his
abandonment of the Union and return to work, Sanchez said
it occurred on Tuesday, May 10. As he testified, ‘‘I couldn’t
see Mr. Mayone accepting the union into his company and
I spoke with Steve Colletti at the time while we were walk-
ing and he was feeling the same way. . . . I just wanted to
get back to work at that point.’’
Tuesday evening, Colletti telephoned him at his house and
said he was seriously considering going back to work the
next day. Sanchez agreed to go back if Colletti did. Colletti
then said, ‘‘We should get our cards we signed back from
the union just to avoid any penalties or fines for going back
across the picket line.’’ Sanchez then called Wyant and told
him what he and Colletti planned to do. Wyant resisted at
first; he was kind of nervous about abandoning the other
strikers, but after a few minutes he agreed.
Sanchez then called Mayone Sr. He told him that Steve,
Bobby, and he were pretty sure they would be returning to
work the next day and a few others, including his roommate,
Rick Thrush, were undecided. Mayone Sr. said that if he
wants to come back, Thrush’s job was waiting for him.
Mayone Sr. also said he was happy they were coming back.
There were no hard feelings; he held no grudges against
them for what they were doing; and their jobs were secure
waiting for them. Sanchez later reversed his testimony, deny-
ing that he had any conversation with Mayone Sr. on the
telephone. This denial was made when Sanchez later ac-
knowledged to the Union’s counsel that it was possible he
had informed Lester he would be receiving a raise if he went
back to work.
Wednesday morning, May 11, Sanchez met Wyant. Then
when Colletti showed up and the three of them told the oth-
ers what they were doing, they drew hostile remarks. Colletti
went into the facility first, followed by Wyant. Sanchez re-
mained outside for an hour trying to persuade Thrush to
come back too. After 15 minutes, Colletti and Wyant came
back out, and approached Leo Lester who was in front of the
facility with the other employees. He heard Colletti ask for
the return of their union cards. Lester replied that he did not
have them and said Colletti would have to send to Albany
for their return—the location of the Union’s office. Sanchez
went into the facility shortly after 9 a.m., reported to Mayone
Sr., checked in with his supervisor, and took off on his route.
On entering the facility, he saw Colletti at his desk, where
he wrote up the day’s receipts and went over customer ac-
counts. Colletti told Sanchez he was going to have a form
typed to request the return of their cards, relieving them of
their obligation to the Union.
Sanchez swore that neither Mayone Sr. nor Mayone Jr.
ever said anything to him about having to get his card back
or get out of the Union for him to return to work. Neither
did he discuss the matter with Supervisor Grant Lewis.
That evening, May 11, Sanchez telephoned Bill Carter,
told him the Union was a lost cause, and was more or less
being dissolved right there, more guys were going to be
working than striking. Sanchez also told Carter ‘‘about the
thing with the cards, too, here we should try to avoid any
fines or penalties because of crossing the picket line.’’
On the morning of May 12, at work, Colletti showed him
a piece of paper with writing requesting the return of his
union card, told him to take one, sign it and date it when
you started work. Sanchez signed and dated it May 11 and
returned it to Colletti, also providing his address. Colletti
said he would take care of it.
Sanchez explained how, beginning May 16, his pay was
increased $10 and the Company started paying the full cost
of individual medical coverage. When Sanchez got his new
company van in February, replacing a leased van, later that
month Mayone Sr. told him he would be leaving it at the
warehouse. Mayone Sr. also said pretty soon everybody
would have to be leaving the vans there at night to keep the
mileage down on them and to reduce wear and tear. Before
imposing the change in van use, Mayone Sr. allowed time
for the employees to make arrangements, e.g., by purchasing
second vehicles, to go back and forth from work. Sanchez
had purchased a used car in November 1987. It was not until
the second week of April that Sanchez started leaving the
van after work at the facility and used his own car to and
from home.
Mayone Sr. told him he would be compensated for the
extra expense associated with using his own vehicle. He did
not specify when it was to be but said it would be soon. This
was the reason, according to Sanchez, that he was kind of
pushed towards going with the strike, because by the end of
April and into the second week of May, he was losing com-
pany vehicle benefits. For at least 3 weeks in April and then
into May, Sanchez received no increase in salary nor any
other compensation to make up for the extra out of pocket
expenses he now incurred arising from using his own vehicle
the 22 miles between the facility and his home.
Sanchez also testified he asked for a copy of his affidavit
supplied the board in the prehearing investigation because
Mayone Sr. had asked him to and had supplied him the re-
quest for his signature. After receiving it from the Region,
he gave it to Mayone Sr. for review by Respondent’s attor-
ney.
Sanchez participated in the strike because of concern about
certain poor working conditions, e.g., the uneven floor in the
warehouse, and an interest in improving conditions and safe-
ty. He abandoned the strike because he did not realize what
he was getting himself into financially. He solicited his
friends among the other employees to abandon the strike for
the same reason. But Sanchez also testified that by May 10
he reached the conclusion that he could not see Mayone Sr.
accepting the Union into his company. By May 10, Mayone
Sr. had shown no interest in reading any papers the Union
offered him, had stated the Union would not be good for the
Company; it was a small company; and it was the second
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
day with no results and no prospects of any good coming
[from the strike].
During his cross-examination, Sanchez initially recalled
Mayone Jr. on May 9 telling the employees before the strike
among other things, ‘‘You’re not going to get anything out
of this,’’ or ‘‘You guys are wasting your time doing this.’’
A minute later, Sanchez denied that Mayone Jr. had told
them, ‘‘You’re wasting your time; you’ll never get anything
through this.’’ Then, Sanchez flipflopped again, acknowl-
edging Mayone Jr. told them only ‘‘you’re wasting your
time,’’ and nothing more other than ‘‘get back to work. I
can’t believe this.’’
Later, Sanchez heard Mayone Sr. ask Lester ‘‘why are you
doing this? I’m a small company. You know, why are you
striking? We’re a very small company. It will be more harm
than good—the Union would do more harm than good.’’ At
this time the group of employees was pretty much together
close to Mayone Sr. and Lester.
Although Sanchez now repeated his earlier testimony that
on Mayone Sr.’s first visit to the group early on May 9 he
told them they would be replaced if they did not come back
to work, when confronted with his pretrial affidavit Sanchez
was forced to change this testimony to ‘‘I had a feeling that
we would be replaced.’’ In his affidavit, Sanchez swore be-
fore a Board agent that ‘‘Peter said we could have our jobs
if we came back to work. He didn’t say what would happen
if we didn’t come back. He did say the office would be open
if we wanted to talk to him. He went back inside.’’ [Empha-
sis added.]
Sanchez also changed his testimony in another significant
respect. At different times, he testified that he did not think
Mayone Sr. took the papers Lester proffered him, and that
he did not know if Mayone Sr. took them or not.
On cross-examination, Sanchez for the first time testified
to his conversation with Mayone Sr. when he crossed the
picket line and went into the facility on May 11. Having
been refreshed by his affidavit, Sanchez explained that
Mayone Sr. asked him what the employees wanted and why
they went on strike. Sanchez told him they wanted better
conditions, talk about increases in salary on a regular scale
they could understand, and know how many raises we would
be getting in the future. Mayone Sr. said he would be more
open about that in the future, they would have more meet-
ings, regular scheduled meetings on upgrades in the condi-
tions, and some raises. Since his return to work, Mayone Sr.
has implemented these changes by being more open in a cas-
ual way; they can go in and sit down and talk with him, and
he has been able to discuss raises and his policy in this re-
gard.
As to his salary increase and health plan improvement, the
promises Mayone Sr. had made in early April, of a $10 in-
crease in salary and payment in full of the premium for his
individual health coverage, had not been implemented by the
time of the strike. On Sanchez’ return to work on Wednes-
day, May 11, he got the $10 increase and the benefit of no
deduction from pay for half of the insurance premium, pro-
rated, in his paycheck issued Friday, May 13. On May 10,
the second day of the strike, after saying he did not recall
the matter, Sanchez agreed it was possible that he told Lester
he was going to get a pay raise if he went back to work.
As to procuring his affidavit sometime in June, Sanchez
testified at first that he and other employees in the office
were told by Mayone Sr. that they would have to request
then so that the attorney could review them to prepare his
case. Then, Sanchez changed this to Mayone Sr. saying it
would be helpful if the attorney had the information. Mayone
Sr. provided the form request to the Region for Sanchez and
other employees by making them available on a conference
table in his office. Sanchez signed one and left it in Mayone
Sr.’s office.
In fact, a series of letter requests dated in August, signed
by employees and addressed to the Board’s Albany Resident
Office were received by counsel for the General Counsel
who then caused a book letter to be prepared on or about
August 25 to accompany the affidavits forwarded to each re-
questing employee.
Robert (Bobby) Wyant, another Respondent witness, also
denied that on May 9 Mayone Jr. said employees would be
fired if they did not return to work. Wyant could not hear
anything Mayone Sr. said when he came out. He was in the
back, with Turk and Cymbalisty, a little removed from the
others. Yet, he did hear Lester say to Mayone Sr. they were
striking for recognition. Wyant denied being solicited by any
person to return to work. Then immediately afterward, he
testified about Colletti’s calling him Tuesday night to say he
was going in to work, then calling Sanchez to learn the same
thing. Wyant then called Mayone Sr. to tell him he was
going to cross the picket line Wednesday morning. Mayone
Sr. said, ‘‘Very good.’’ It was a very short conversation. He
said nothing about getting out of the Union.
When Wyant crossed the line on May 11, he asked
Mayone Sr. if he could take the rest of the week off for per-
sonal problems. Mayone Sr. agreed. On May 16 when he ac-
tually returned to work, Colletti had left him a form to sign
requesting the return of his card from the Union and Wyant
signed it and left it on Colletti’s desk. Yet, Wyant’s request
to the Union is dated Wednesday, May 11. Wyant denied
any Respondent promise of benefit for returning to work or
conditioning his return on withdrawing from the Union.
On Wyant’s return on May 16, he and Mayone Sr. worked
out a ‘‘deal’’ whereby he took off Wednesday afternoons for
a reduction of $22, from $322 to $300 a week, in pay.
Wyant always had and continues to maintain his own health
insurance independent of the Company’s policy. On cross-ex-
amination Wyant differed with Sanchez in denying that
Mayone Jr. appeared to become frustrated and asserted he
used normal tones when he told the employees on May 11
to go back to work (and no one did). He also placed Mayone
Jr.’s talk with Jeff Dowd as taking place after he addressed
the drivers rather than before as others had previously testi-
fied.
Kenneth Cymbalisty, like Wyant, recalled none of Mayone
Sr.’s comments to the employees because of his distance
from the group around Lester and Mayone Sr. Yet, he also
swore they were only about 8 to 10 feet away, and further
swore that Mayone Sr. did not address remarks to the em-
ployees. But Cymbalisty recounted Mayone Sr.’s entreaties
to employees to return to work when he came back outside
the second time. Cymbalisty denied being questioned by
Mayone Sr. about getting his union card back when he called
Mayone Sr. Wednesday evening to ask him if he could re-
turn to work but on Friday, not Thursday. Cymbalisty also
denied that either Mayone Sr. or Mayone Jr. ever said that
employees would be fired if they did not return to work. Yet,
753FUN CONNECTION & JUICE TIME
as noted, he did not hear any remarks by Mayone Sr. on
May 9. On Friday, May 13, he signed and returned to
Colletti the form withdrawing his union application.
Cymbalisty received his insurance benefit by telling
Mayone Sr. on his May 13 return to work that he would like
family coverage for himself and his son. He knew the benefit
was available but never discussed it with Mayone Sr. before
the strike. Cymbalisty continued taking a leased van home
until early June and did not get a new company van until
around December. Cymbalisty thus received a double ben-
efit—family coverage plus the $25 premium Respondent now
paid for its half share of that coverage.
Cymbalisty testified at first that he called Mayone Sr. to
go back to work after Wyant called him and told him that
Mayone Sr. would be willing to let him go back to work.
Later, Cymbalisty clarified that he assumed from Wyant’s
comments about having spoken to Mayone Sr. that he ulti-
mately would be welcomed back.
During his cross-examination, Cymbalisty affirmed that
Mayone Jr. was upset and distraught when he spoke to em-
ployees early on May 9. Since he was not paying attention,
Mayone Jr. could have made comments other than asking
what the employees were doing. When he spoke with
Mayone Sr. who returned his call the evening of May 11,
Mayone Sr. asked him why he had walked off the job.
Cymbalisty took this as a request to recite any problem
Cymbalisty had encountered on the job. Cymbalisty ex-
plained that there had been no communication between man-
agement, his son, and the employees, that there was no talk-
ing to Mayone Jr. prior to the strike. It will be recalled,
Cymbalisty worked for Capital Vending, the Respondent en-
tity supervised and managed by Mayone Jr. Mayone Sr. re-
sponded that we will have communication. Mayone Sr.’s re-
sponse was one of the reasons that he went back to work.
Since his return, Mayone Sr. has been more open and com-
municative, in terms of more contact and meetings with the
employees. Prior to the strike Cymbalisty did not see this
openness.
Cymbalisty acknowledged that he was confused, presum-
ably about the events which he witnessed, both when pro-
viding the Board agent with a statement and while testifying.
This became particularly evident when the contradiction
about what he did with the written request to withdraw his
union application became apparent, Cymbalisty having sworn
in his affidavit that he personally mailed to the Union the
signed form given to him by Colletti on May 13, and having
testified that he signed and gave it back to Colletti. Further
confusion was probably manifested when Cymbalisty ex-
pressed assurance that Mayone Sr. was angry at him for hav-
ing participated in the strike, yet nothing Mayone Sr. said
showed this anger or dislike or unhappiness at what he,
Cymbalisty, had done. Only a shaking of his hands on May
9 showed his concern.
The final employee witness called by Respondent was
Steve Colletti. He was not present on May 9 when Mayone
Jr. spoke with the employees prior to the picketing, having
arrived at the lot at 7:30 a.m. Neither did Colletti see
Mayone Sr. in conversation with Lester shortly afterward. He
could only recall Mayone Sr. pulling himself, Wyant and
Micelli over to the side to ask them if they would come back
to work. Thus, Colletti testified he did not hear Mayone Sr.
tell employees they would be fired for striking or not return-
ing to work. Neither did Colletti, in contrast to other wit-
nesses, see Mayone Sr. later that day, neither at the door or
window beckoning pickets in, nor emerging to button hole
them as they walked by.
By the following morning, May 10, Colletti had had
enough. Nothing was getting accomplished. He told the other
pickets he would follow Grant Lewis, the supervisor, who
was driving a van that day, to the Coeymans warehouse, and
report what he saw. But Colletti used this as a strategy to
leave the picket line and contact the Respondent to return to
work. He called Mayone Sr. around mid-day and agreed to
come in to work the following day. That evening, Colletti
contacted Sanchez and Wyant, who both agreed to come
back to work with him the next day. Colletti called back
Mayone Sr. to tell him of their plans. Colletti swore that at
no time in these Tuesday conversations did Mayone bring up
his leaving the Union.
On Wednesday morning, Colletti and Wyant started into
the office in the face of strong displeasure voiced by Micelli
and Lester. Sanchez appeared to hold back. After being in-
side the office for only a couple of minutes, so they could
cool down, he and Wyant went back outside and asked Les-
ter for their union cards. Lester told them he did not have
them, and they had to go to Albany for them or could write
a letter. Colletti now explained that he asked for his card be-
cause he had heard Lester tell an employee at the second
union meeting that those employees who did not strike could
be fined for every day the strike continued. Colletti wanted
to avoid fines or calling him names. If he got his card back,
maybe the Union would not have any record of his ever try-
ing to join, ‘‘or whatever we were really doing.’’ Colletti de-
nied that Mayone Sr. had asked him, to get his card back.
At this point he, Wyant and now Sanchez went back in-
side the office. Because of fear of damage to their personal
vehicles, they drove them to Mayone Sr.’s driveway after
getting Mayone Sr.’s permission to do so. While at the ware-
house, before going out on their routes, Colletti discussed
getting their cards back, and then called his girlfriend to have
her type a letter for this purpose. Those letters are identical
in their body, a single sentence in which the signatory re-
quests withdrawal of his union application, effective imme-
diately, followed by employee signature and date. Each let-
ter, of the eight received in evidence, signed by employees
Wyant, Thrush, Colletti, Cymbalisty, Racene, Sanchez, Turk,
and Carter, on either May 11, 12, or 13, also contain their
typed name and address in the upper left portion. No ad-
dressee appears. They were all mailed by Colletti and re-
ceived by the Union on May 17.
Collettti said he first told Mayone Sr. of his intentions to
get back his card on Wednesday, May 11. That day, he got
the names and addresses of the employees from the book-
keeper who wrote them out for him. The basic letter was
typed, reproduced, and then addresses on the letters and em-
ployees were also typed by his girlfriend Wednesday evening
and he distributed them on Thursday and Friday, except for
Wyant’s who signed on Monday. They were all dated the
day they each returned to work. Colletti mailed each reg-
istered or certified, return receipt requested.
As to his pay increase, Colletti testified that about 4 or 5
days before the first union meeting on April 27 he had a dis-
cussion with Mayone Sr. in which Mayone Sr. agreed to in-
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Colletti later changed the date of this conversation with Mayone Sr. to ei-
ther Friday, April 22, or Monday, April 25.
crease his pay by $25 a week.8 Colletti never drove a
company van home. Colletti could not remember if
Mayone Sr. told him it would start the following week
or the week after that. At the first union meeting,
Colletti asked Lester if the $25 raise would affect his
getting more with the other employees through the
Union. Lester told him it would not affect anything.
Colletti confirmed that Mayone Sr. later asked the employ-
ees if they could get copies of their statements to help his
case. Colletti, unlike others who testified to this matter, noted
that Mayone Sr. said it was up to them. Colletti agreed and
Mayone Sr. gave him a form to sign; Colletti signed, and
when he received his affidavit, he gave it to Mayone Sr.
Colletti’s pay was $275 per week from the week ending
January 18 to the week ending Friday, May 6, $180 for the
week ending May 13, and $300 for each of the following 3
weeks, ending May 20 and 27 and June 3. Thus, the increase
of $25 was first reflected in his pay for May 11, 12, and 13
when he crossed the picket line and returned to work. There
was no change throughout these periods in his health insur-
ance deduction, which remained at $25.18.
Colletti recalled while undergoing cross-examination that
‘‘maybe’’ Mayone Sr. had told him, when asking for his
statement, that it would be good if we all stuck together on
this. Colletti’s written request, dated August 22 and mailed
by Respondent, was received by the Board’s Albany Re-
gional Office on August 25.
During his cross-examination by union counsel, Colletti
maintained that he received the job title of sales manager
about a month before he came back to work (from striking)
on May 11. Yet, on his union authorization card dated April
20, he lists his title as truckdriver. Further, while he was in-
terested in avoiding union fines, he did not know if he had
retained the signed postal receipt establishing delivery to the
Union of his request for withdrawal of his membership appli-
cation.
Colletti later clarified that he calls himself sales manager;
it is not an official job title that Respondent bestowed on
him. This title reflects his function of preparing art work and
doing more buying and contacting companies to get better
prices for Respondent’s purchases of supplies. He still re-
ceives the same one shot commission on procuring new sales
accounts. He continues to drive a route for the Company.
Both Mayones testified for Respondent. Mayone Jr. admit-
ted that in the morning of May 9, after approaching the park-
ing area, he pulled Macie aside, told him he was surprised
he was out there, and told him to come inside and maybe
we could work something out, that he did not have to be out
there with the rest of these men. Mayone Jr.’s testimony in
this regard immediately followed his disclosure that before
reaching the parking area on foot, after parking his own car
in a separate location, he was greeted by Jeff Doud who told
him the employees were on strike and represented by Leo
Lester whom he knew and he should be very careful as to
what he said to the men, that they had the right to go out
on strike.
Mayone Jr. also corroborated other General Counsel’s wit-
nesses that he took papers from Lester—‘‘a form of some
type’’—who wanted him to sign ‘‘something.’’ Mayone Jr.
testified he did not look at the papers and did not know what
he did with them. Although Mayone Jr. was with the group
of employees for 10 to 15 minutes, he claims he talked only
to Macie during this period.
After leaving the group, Mayone Jr. saw his father pulling
into the parking area. Jeff Dowd was there, and told his fa-
ther the men had gone out on strike and Leo Lester was rep-
resenting the men for them to recognize the Union. He then
accompanied his father over to the group. Lester approached
him with the same form given to Mayone Jr. and said the
men were now being represented by himself and Local 669
and any questions or any bargaining had to be dealt through
Leo Lester. His father pulled Harold Turk aside but Mayone
Jr. did not hear their conversation and he soon left to go
back to the office to set up the routes and fill the orders for
the day. According to Mayone Jr. the routes that day were
covered by himself, a brother, and a state worker familiar
with the routes, both of whom were temporary and did not
remain at work after the strike, Jeff Dowd, the mechanic,
Steve Wilkins, the one driver who reported on time to work
that day and did not strike, and Supervisor Grant Lewis.
Mayone Jr. gave his version of events on May 10. He
might have dropped some cases while loading his truck. Les-
ter Wood and some employees were hovering at the top of
the area where the trucks load and yelling obscene things.
Wood, in particular, was grabbing his private parts and mak-
ing obscene gestures at him. Mayone Jr. admitted making
some comments directed to Wood but could not remember
what they were. Mayone Jr. denied telling employees they
were fired if they did not return to work or that they would
have to drop out of the Union or sign a form withdrawing
from the Union before they could return to work.
Now, on cross-examination, Mayone Jr. changed his testi-
mony, and denied that he told Macie maybe we could work
something out. Now, Mayone Jr. swore he told Macie,
‘‘You, know, if there’s anything you want to talk about, we
can go in and talk.’’ Mayone Jr. then changed that response
to swear he told Macie, we can talk about any problems you
are having. Apparently, Macie knew what he meant because
Mayone Jr. next testified that Macie told him ‘‘every time
that I have to take a day off or I’m sick, I’m in fear of losing
my job.’’ Mayone Jr. then reminded him that 2 days ago
when Macie was crying about being sick, he had a driver
come in and take him home.
Mayone Jr. acknowledged that on May 9 he knew the
Union through Lester was claiming to be the representative
of Respondent’s employees and requesting the Company bar-
gain with the Union as such representative.
Mayone Jr. characterized his father as very shocked by the
whole thing when he arrived on the scene and was told by
his son the men had gone on strike and were represented by
Leo Lester from Local 669.
Now, Mayone Jr. also reports the statement his father
made to Turk, contrary to his testimony on direct that he did
not hear it. His father told Turk, ‘‘Harold, you don’t have
to be out here with the these men.’’
Mayone Jr. also admitted certain statements he had made
to a Board agent during an interview on May 9 which dif-
fered markedly from his testimony. In his interview, he told
the agent of his conversation with Dowd but not of his being
warned to be careful about what he said to the men. Mayone
Jr. also told the agent that the only time he asked any em-
755FUN CONNECTION & JUICE TIME
9 The transcript says, ‘‘next year. . . .’’ This is clearly an error in recording
or transcription and is ordered corrected.
ployee what the work problems were was after the strikers
returned to work, a direct contradiction with his earlier report
of his inquiry of Macie on May 9. As to his questioning of
employees after the strike, Mayone Jr. made inquiry of a
couple of employees on their return and received the re-
sponse they felt they had some problems, and that the only
way they could be taken seriously or the problems recog-
nized was if they went out. However, Mayone Jr. learned
from these returning employees that I they had felt pressured
by one or two employees to go out on strike, and those em-
ployees were Macie and Micelli.
Mayone Sr. testified he received the same warning from
Dowd as his son initially testified to receiving, but in greater
detail; ‘‘You’ve got to be careful what you say because . . .
it can get taken out of context. . . . you cannot fire anybody
but you can hire replacements.’’ Significantly, Dowd, a wit-
ness primarily available to it, was not called to the witness
stand by Respondent to corroborate what Respondent in its
defense believed to be an important piece of advice given be-
fore Mayone Sr. made any statements to Lester, Wood, or
the employees the morning of the demand and commence-
ment of the strike. I infer that Dowd would not have sup-
ported the Mayones’ claim of warnings before confronting
the union agents and employees, e.g., NLRB v. A.P.W. Prod-
ucts Co., 316 F.2d 899, 903–904 (2d Cir. 1963), and I do
not credit Mayone Sr.’s or Jr.’s testimony in this regard.
Mayone Sr. was very surprised; it was a traumatic experi-
ence for him when be learned his drivers were united with
the Union in its demands and in withholding their services.
Lester told him he represented Teamsters Local Bakery, et
cetera 669 and your men unanimously want me to represent
them and I have all their signed cards. Mayone Sr. refused
to shake Lester’s extended hand. Lester handed him three
pieces of paper saying, ‘‘I want you to sign this and this will
all be behind you.’’ According to Mayone Sr. those papers
only included the three form letters for him to sign recog-
nizing the Union, agreeing to negotiate commencing May 11,
and agreeing to certain provisions, including recognition,
union security and checkoff. He did not receive the three de-
mand letters including an offer of a third party check of au-
thorization cards, claim of majority representation, and de-
scription of the unit in which bargaining was demanded.
Mayone Sr. by his own admission, was in shock. He ap-
proached Turk seated on the passenger side of a car and
asked what was going on. Mayone said, ‘‘Next week9 you’ll
be with me 20 years and look at this now. Turk didn’t want
any part of this but he didn’t want to be the only one and
he wanted the men to be together.’’ Mayone testified he then
went from one guy to another, grabbing their arm and beg-
ging them to come back to work. He told Lester he was not
going to sign anything, adding, ‘‘You know, I have to run
my business and if the men don’t come back to work, I have
to hire replacements.’’ All of a sudden, Wood hollered out,
‘‘So, you fired them.’’ Mayone Sr. denied saying that.
Mayone went back to his office and made a few calls, two
to business men friends. One told him, among other things,
to be careful what he says because it can be taken out of
context but he could hire replacements. According to
Mayone Sr. he received similar advise from a Board agent
on a telephone call made then regarding the distinction be-
tween firing strikers and replacing them.
Mayone went outside again; Wood was gone, and he told
Lester he would not sign. He then called a few of the men
to come inside to I talk. They started to follow him but Les-
ter told him to cease, he was representing them, and they
were all staying together. On a second approach he then
made to Turk an understanding was reached whereby Turk
would go home, his van would be brought to him, and he
would go to work. Later, Mayone Sr. drove Turk’s van to
a prearranged location and Turk went to work.
Mayone Sr. denied looking out the window of the main
office facing on the sidewalk and street. Neither did he go
out to or near the picket line because he ‘‘didn’t want no
[sic] confrontation.’’
On the next morning, May 10, he went out to talk to Rick
Sanchez during the picketing but was not successful in in-
ducing his return. Colletti called him in the afternoon, said
he was fed up and do not be surprised if I come back to
work tomorrow morning. Mayone Sr. replied, ‘‘great,’’ and
that was the conversation. That evening, Colletti called again
to say he was definitely coming back to work. He had talked
to Sanchez, he was coming back, possibly Thrush and
Wyant. Again, Mayone Sr. said, ‘‘That’s great.’’ Sanchez
called, said he wanted to come back, Mayone Sr. said he was
grateful and asked about his roommate Thrush who got on
the phone and said he was thinking about doing it. Wyant
also called him, and he told him he could also come back.
However, Mayone Sr. was preoccupied at the time with his
wife’s illness with the flu.
On May 11, Colletti came in first, followed by Wyant and
then Sanchez. Mayone Sr. was standing outside at the corner
of the building. When Macie saw Colletti coming in, Macie
approached Mayone Sr. first. He asked for $50 a week more.
Mayone Sr. said, ‘‘You just started working for me a month
ago,’’ and declined. Macie then asked for $25; Mayone Sr.
said, ‘‘No,’’ and Macie returned to the line.
After Colletti came in, he said he had to go outside for
something. He left with Wyant and returned 5 minutes later
in a bad mood. Colletti explained that Lester refused to give
him back his union card, claiming he did not have it, when
it was in his shirt pocket the day before, and he would have
to go to or write the union hall for it. Wyant later asked him
for time off because he was going through a divorce and was
mixed up and Mayone Sr. obliged him with time off to Mon-
day. Sanchez promised his roommate would return the next
day.
When Colletti told him at the end of the day his girlfriend
was going to type up some forms to get his application back,
or withdrawal card, Mayone Sr. told him ‘‘that’s up to you.’’
Carter called Mayone the evening of May 11 saying, ‘‘I
guess the thing fell apart, I’d like to come back to work,’’
to which Mayone said, ‘‘Okay.’’ He returned Cymbalisty’s
call that evening also and approved his return on Friday,
rather than Thursday. Thrush also called to come back.
Mayone denied telling any employee he had to withdraw
from the Union or sign any form taking such action before
he could come back to work.
On Thursday, May 12, Micelli, Macie, and Lester were out
front. Carter, Racine, and Thrush came to work. Mayone de-
nied Micelli approached him about returning work. However,
Mayone Sr. later testified he approached Micelli on May 13
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
across the street from the Ravena facility to inform him he
had been replaced, to which Micelli replied, ‘‘You mean you
fired me.’’ Mayone Sr. said he did not say that and Micelli
said, ‘‘It’s the same thing.’’ At this point, Micelli wanted to
see him privately; they went to Mayone Sr.’s office where
Micelli told him he loved him like a father, Mayone Sr. said,
‘‘You have a strange way of showing it,’’ and Micelli then
asked for help in getting his unemployment. Mayone agreed,
saying if it means telling the truth, he would.
Mayone Sr., as earlier noted, hired two replacements, one
on May 11, starting on May 12, and the other on May 12,
starting May 13. The first left and was in turn replaced in
July.
The following week, in a call from Micelli, Mayone Sr.
learned Micelli was having a problem, at unemployment and
Mayone Sr. said there may be a mix up with someone else
he had fired and he called to straighten it out. Mayone Sr.
at first denied any other discussion then, but then recalled
telling Micelli to leave the guys alone. He heard Micelli had
been approached on the road about trying to get them to go
to a meeting again.
Mayone Sr. acknowledged seeing the employee’s letters to
withdraw their union applications at his lawyer’s office.
Mayone Sr. did not retain counsel until the Board agent
came down to interview employees at the facility on June 9.
Mayone Sr. arranged for the release of employees from work
to meet the agent but did not select them for this purpose.
It was after the interviews that he contacted counsel.
Mayone Sr. testified that as leases for his van started ex-
piring in 1988, he turned them in and purchased new ones
starting in early March. By May 9, four leases had expired.
On or about April 1, he started telling those drivers, individ-
ually, in his office who already had or would be getting their
vans replaced, that they would no longer be able to take
them home, but he would be working an adjustment to pro-
vide a little more money or paid hospitalization at their op-
tion. Only Turk, because of his years of service, would be
able to continue driving home in a van. Turk was also in-
formed, later, ‘‘right around the strike’’ that, in addition, he
would be receiving a $20 a week increase. His 20th anniver-
sary and celebration as an employee took place the week fol-
lowing the strike. By the strike, all employees losing their
rented vans had been so informed.
Mayone Sr. told the employees he would be making these
changes in pay and benefits ‘‘very soon.’’ Even for those
employees whose vans had already been replaced and who
could no longer taken them home, nothing was done imme-
diately to provide them with compensation to make up their
additional out of pocket expenses. When he informed them
of his plans, the employees affected told him in what form
they wanted the benefit, whether in cash or increased hos-
pitalization. In a number of cases, perhaps most, no specific
amount was discussed or specified by Mayone Sr. Mayone
Sr., here, testified in conflict with his earlier testimony while
a General Counsel’s witness that with respect to the van
leases terminated prior to the strike, the drivers of new vans
were not then prohibited from taking them home. Mayone
Sr. now swore this portion of his policy was immediately im-
plemented before the strike. Later, Mayone Sr. contradicted
himself again by swearing that the policy was only imple-
mented when all the vans remained on site at the beginning
of the strike. ‘‘That’s when that started, and they knew they
couldn’t take it home. One by one I was telling them, you
know, what I spoke to you earlier about last month or I’m
going to institute it now.’’ (Tr. 877.) He delayed and pro-
crastinated implementing the policy, even though losing
money, until the presence of old vans on site woke him up.
On Friday, May 13, Mayone Sr. testified, he informed the
employees who had returned to work that their benefit would
be forthcoming starting then. The particular benefits provided
each employee and the circumstances surrounding their re-
ceipt have been earlier summarized. A number of employees
testified in conflict with Mayone Sr. about learning of their
benefits on their return to work before Friday. On cross-ex-
amination, Mayone Sr. now explained that whenever they
came back to work he told them you cannot take the van
home and asked them what is your choice [of benefit].
Mayone Sr. then contradicted not only his earlier testimony
about Friday as being the date of his conversations but also
his earlier testimony that he had gone over the options and
gotten employee selections before the strike. This testimony
is also in conflict with that of Colletti who swore to an un-
derstanding that in the days immediately preceding the
Union’s April 27 meeting, he received an assurance of a $25
increase within one or two weeks. See, supra. Mayone Sr.
also denied he had any prior conversations about increased
benefits with Micelli, who, like Colletti did not take a van
home.
During his cross-examination, Mayone Sr. now admitted
asking employees gathered together early on May 9 ‘‘Why
can’t you come in? We can talk about this.’’ Mayone Sr.
also now testified that on May 9 he called Macie’s mother
while Macie was picketing and told her he would really like
to have Jim back to work, could she talk him into coming
back. Macie lived with his mother. She told Mayone Sr. it
was entirely up to her son. Mayone Sr. added under prodding
that Mrs. Macie told him that her son was under the impres-
sion when he, Mayone Sr., had taken him to Marshall’s ga-
rage to help him purchase a car, that Mayone Sr. would
cosign a loan. Astoundingly, Mayone Sr. denied introducing
this subject of his taking Macie to a close salesman friend
at the garage and used car dealer, but it was something
which had motivated his call. He believed his help in getting
Macie the car deal called for reciprocation by Macie in ceas-
ing his participation in the strike and picketing and returning
to work.
During the Union’s cross-examination, Mayone Sr. admit-
ted telling the Board agent on his June visit to the facility
that he never directly or impliedly told any employee he
would improve wages or benefits if they returned to work.
However, he did tell them the following week he had de-
cided he did not want them to take their vans home at night
as in the past. Mayone Sr.’s failure to mention the portion
of his new policy reflecting an adjustment of wages or bene-
fits in this conversation is a significant omission. In another
oral statement made to the Board agent, significantly,
Mayone Sr. failed to mention the preliminary meeting and
verbal exchange with Jeff Dowd, about which he earlier tes-
tified before walking over to the assembled group of his em-
ployers early on May 9 and which conversation in full I have
not credited.
I have earlier credited General Counsel’s witnesses
Micelli, Macie, Wood, Lester, and Carter in certain respects.
I noted, in doing so, that these credibility resolutions were
757FUN CONNECTION & JUICE TIME
grounded, in part, on my evaluation of the credibility of Re-
spondent’s witnesses.
The foregoing summaries of their testimony provides
strong basis for discrediting the employees and the two
Mayones who testified on behalf of Respondent, in so far as
their testimony departs substantially from the testimony of
the Government’s witnesses. Initially, it must be noted that
of the four employees called by Respondent, three of them,
Wyant, Cymbalisty, and Colletti, denied overhearing any of
the remarks, including threats to discharge and related com-
ments, made by Mayone Sr. on May 9 and Colletti, in par-
ticular, admitted not being present when Mayone Jr. spoke.
Wyant could not hear Mayone Sr.; Cymbalisty did not hear
Mayone Sr. because of his distance from the group around
Mayone Sr. and Lester, and Colletti did not hear Mayone Sr.
address Lester or employees generally. Thus none of these
three denied the statements attributed to Mayone Sr. by the
employees and organizers who earlier testified.
Sanchez made some major changes in his recitals which
made his testimony particularly unreliable. After first admit-
ting Mayone Sr. made clear the futility of employee selection
of the Union as bargaining agent, Sanchez changed his testi-
mony twice after apparently realizing the significance of his
initial admission. I credit his initial response. Sanchez’ testi-
mony was further impeached by the statement in his affidavit
in which he denied Mayone Sr. told the employees what
would happen if they did not return to work in contrast to
his testimony at the hearing that Mayone Sr. told the em-
ployees they would be replaced if they struck. Based on
these, among other inconsistent statements, including those in
which Sanchez disputed Mayone Sr. that he took papers from
Lester, I do not credit Sanchez’ denials that the Mayones
threatened to fire the assembled employees and that the
Mayones did not require the employees to withdraw from the
Union before he would take them back. I do credit Sanchez’
admissions, including the statement he possible made to Les-
ter that he would be receiving a raise if he crossed the picket
line and went in to work.
Wyant proved unreliable in first denying and then admit-
ting that he had been solicited to return to work. Wyant’s
characterization of Mayone Sr.’s demeanor as calm while in
the parking lot is at variance with Sanchez, Cymbalisty, and
Mayone Sr.’s own testimony regarding his pleading and beg-
ging manner at the time. His testimony is also discredited
with respect to his denials that Respondent required him to
get his union card back to return to his job. Cymbalisty was
admittedly confused in his testimony and repeatedly evi-
denced this state while on the witness stand. His denials of
Mayone Sr.’s threatening statements on May 9 and of any
request by Mayone Sr. during their telephone conversation to
get his union card back are not credited. Cymbalisty’s testi-
mony relating the circumstances of his receipt of increased
insurance coverage without cost on his return to work on
May 13 when he was still driving home a leased van is dis-
ingenuous at best and his recollection of having assumed
from his talk with Wyant that Mayone Sr. would welcome
him back shields more than it reveals about the true cir-
cumstances of Respondent’s promise and grant of benefit and
requirement that he disavow the Union as the price for his
return.
Colletti’s explanation for his having left the facility on
May 11 to seek the return of his union card is not believable.
A person of Colletti’s professed convictions and prior con-
duct that week would have independently taken steps to dis-
avow the Union before entering the facility. The only inter-
vening event after Colletti went into the office was his meet-
ing with Mayone Sr. shortly after Mayone Sr. had told
Micelli he could not return without his card. In view of
Carter’s admission, it is evident that Mayone Sr. had surely
earlier made Colletti aware of Respondent’s interest in hav-
ing the employees’ withdraw from union affiliation. Neither
is Colletti credited that Mayone Sr.’s request for the produc-
tion of his affidavit was voluntary.
It is also highly significant that Mayone Sr. did not cor-
roborate Colletti that he had been informed in late April he
would be receiving a $25 increase in 1 or 2 weeks. Colletti
was not among the group of employees who drove vans
home—the only group for which Mayone Sr. testified he
planned increases. There was no evidence of any general Re-
spondent plan of salary review or adjustment overtime. Thus,
Colletti, as well as Cymbalisty and Carter, fell outside the
scope of Respondent’s defense that it was merely rewarding
employees whose costs had increased on the return of their
leased vans when it increased their wages or provided a
health benefit on their return from striking. Colletti also con-
tradicted himself as to when he started using the title of sales
manager based on the job description he provided on his
union card. Colletti’s self-aggrandizement regarding his job
function is consistent with his role in leading the return from
work on Respondent’s terms—of disavowing the union and
being rewarded with the benefit Mayone Sr. had promised
but had not fulfilled for certain van drivers. Colletti’s imme-
diate reward was the $25 a week increase made effective the
day of his return on a pro rata basis which, in his case, was
not provided to make up for additional out of pocket ex-
penses as was the case with some of his colleagues.
Mayone Jr. suffered a convenient loss of memory while on
the witness stand. He made a number of significant changes
in his testimony and between his testimony and oral state-
ments he affirmed making to a Board agent prior to trial.
One of the most significant omissions from his prior oral
statement was his failure to mention receiving a warning
from Dowd before he spoke to the employees on May 9.
There is no other evidence of this conversation and I do not
credit Mayone Jr.’s testimony in this regard. Nor do I credit
his denial of cursing and threatening employees with firing
or loss of their jobs; nor his denial of playing any role in
requiring the Union’s disavowal by employees seeking return
to work.
It is clear from, Mayone Jr.’s testimony that Respondent
was aware that Macie and Micelli were the leading union ad-
vocates. These two employees received the brunt of Re-
spondent’s antiunion conduct. In particular, Mayone Sr. rec-
ognized Macie’s union activities in later conversations as
well as when he directed him to cease contacting employees
about the Union after the picketing ceased and the strike had
failed—a clear violation of the Act.
Mayone Sr.’s admitted behavior on May 9 and thereafter
lends credence to the credited testimony of those witnesses
who heard him threaten employees, and then cajole them to
return with promises of improvements in pay, benefits, and
access. It is also incredible that Mayone Sr. would limit his
gratitude for the employees’ interest in returning to work, to
expressing thanks. Sanchez strongly suggested at what he be-
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 While the Union’s letter sought a separate unit for each Respondent enti-
ty, Lester’s demand was made on behalf of all the employees of the single,
integrated employer and the Mayones knew what the Union meant and did not
dispute it. I conclude that the overall, alternate unit alleged by the General
Counsel was acknowledged by the parties and will better serve the public in-
terest and the employees’ interest as being the unit which governs the Re-
spondent’s obligations in this case.
lieved was waiting for him across the picket line and others,
such ag Cymbalisty, similarly took their health or wage im-
provement as a quid pro quo for their support of Respondent
in the face of the Union’s demands and picketing. Mayone
Sr.’s denials of threats, promises, interrogations, and grants
of various benefits as rewards, are not credited. Whether or
not he was made aware of the limits of proper or lawful con-
duct by Dowd before approaching the employees, and I have
found he was not, it is clear that Mayone Sr.’s perception of
a significant and immediate threat to the very survival of his
business by the actions of the Union drove this volatile and
emotional personality to far exceed the legal constraints set
forth in the Act.
It is not believable that Mayone Sr. did not seek to draw
pickets inside on the first day, as he swore. Mayone Sr.’s ex-
planation, that he did not want a confrontation, is under-
mined by his conduct on his two appearances earlier that day
in the parking lot when he exposed himself to Union and
employee criticism and censure by simultaneously grabbing
aside employees and refusing to respond to the Union’s de-
mands.
No employee except Colletti backed up Mayone Sr.’s as-
sertion of prior promises of specific wage increases or health
benefits and Colletti’s testimony is at variance with Mayone
Sr.’s policy of rewarding only employees hurt by his new
van policy.
Analysis and Conclusions
Based on the credibility resolutions I have made, as well
as the admissions made by Respondent’s witnesses, including
the two Mayones, the facts show that once the Union made
itself known and sought to bargain that Respondent em-
barked on a course of conduct designed with one aim in
mind, to destroy the Union’s majority and to destroy the
Union as a viable agent for negotiating the terms and condi-
tions of employment of its unit employees.
The complaint, as amended at hearing, alleges that the
Union enjoyed majority status among Respondent’s route
salesmen, drivers, mechanics, cashiers, warehousemen, and
utility men employed at its facilities in Ravena and
Coeymans, New York, when it demanded bargaining for
these employees on May 9. It also alleges that this unit con-
stitutes an appropriate unit under the Act. The parties stipu-
lated that an appropriate unit at Respondent’s places of busi-
ness include drivers/servicemen, vending machine mechanics,
and plant clerical employees. The parties differ as to the in-
clusion of the secretary/bookkeepers, Respondent urging their
inclusion as plant clerical. As to the cashier, utility/
maintenance man, and Grant Lewis, sales manager, again
Respondent urges that these positions are included in the ap-
propriate unit.
No cashier was employed on the date of the demand.
Nonetheless, I will determine the unit placement of that posi-
tion since it was a job title included in the Union’s claim of
majority representation and demand for bargaining which I
find was submitted to, and received by both Mayones, on
May 9. Lester reasonably explained why he included that
title in his demand. It was because the then cashier informed
him he also drove a route on a daily basis. No such activity
has been claimed for the successor cashier who performs his
services in an isolated room without contact with the drivers
or mechanics. I will exclude the cashier position as lacking
a community of interest with the driver-salesmen and me-
chanic. See Armco, Inc., 271 NLRB 350, 351 (1984), for a
statement of the principles governing unit composition. As to
the utility man, unlike the driver, product, and route related
functions performed by individuals with this title in other
companies with whom the Union has bargaining relations,
Giacomini performs no such functions for Respondent. The
functions performed by Giacomini do not bring him in phys-
ical or work contact with any of the other unit personnel. He
works part time on an hourly rate significantly different from
the drivers, and I conclude the utility or maintenance version
is also properly excluded from the appropriate unit as stipu-
lated. The facts also more than justify a conclusion that
Grant Lewis is a supervisor within the meaning of the Act,
and I so conclude.
As earlier noted, no separate warehousemen were em-
ployed on the significant dates, or even to close of hearing.
Their functions however were performed by the drivers. I
also conclude that the secretary/bookkeepers are not plant
clerical employees and are therefore to be excluded from the
unit as stipulated and sought by the Union. While these
bookkeepers have daily contact with drivers and may be ap-
propriately included in an overall unit if one were sought,
but see Merry Oldsmobile, 287 NLRB 847 (1987), it is clear
that the Union excluded then, from, its demand, the Re-
spondent does not dispute their exclusion if found to be of-
fice clerical employees as I conclude they are, and they are
not part of an appropriate unit sought here. The Act does not
compel the selection of the most appropriate unit. Hamilton
Test Systems New York, 265 NLRB 595, 596 (1982).
Inasmuch as the Union held an overwhelming majority
among the Respondent’s route salesmen, drivers, mechanics,
and warehousemen, the unit I find is appropriate, was stipu-
lated as appropriate, and which the Union sought to rep-
resent, I conclude it represented these employees when it de-
manded recognition and bargaining on May 9. Even if the
utility person is included, the Union’s majority position is
not significantly diminished. Putting aside the Union’s mis-
understanding of the function of the cashier and utility man,
I also conclude that the minor variance in this case, if there
was one, between the Union’s demand and the actual job
classifications of the positions which it represented, was so
negligible as to constitute no defense to the Union’s demand
for recogn ition and bargaining in the appropriate unit. See
Color Tech Corp., 286 NLRB 476 (1987).
The Company’s response was to reject the offer of a third
party card check, to refuse recognition outright and, indeed,
to announce its rejection of the collective-bargaining prin-
ciple with any union so long as Respondent remained in
business. Its position was taken in the face of near unanimity
among the unit personnel, with only Wilkins and Dowd not
present or participating in the concerted withholding of their
labor at 7:30 a.m. on May 9.10 At no time did Respondent
seriously dispute the Union’s majority status among the unit
employees.
759FUN CONNECTION & JUICE TIME
Instead of leaving the matter there, Respondent’s man-
agers, in the person of the Mayones, Jr. and Sr., immediately
threatened to fire those who refused to come to work and
continued their concerted demand for recognition of their
agent and for bargaining of the terms and conditions of their
employment. Mayone Sr., in particular, engaged in a series
of promises and enticements to the same end. Each of the
allegations contained in paragraph VI of the consolidated
complaint, as amended at hearing, has been proven by the
General Counsel. Mayone Sr. (as well as Jr.) informed the
employees that Respondent would never recognize or deal
with the Union and that the Union will do more harm than
good; both Mayones interrogated their employees concerning
the reasons for their union involvement on the dates alleged;
invited the striking employees into the office to talk, and so-
licited grievances, and having received them, promised to re-
dress them; Mayone Sr. promised to make a car loan for an
employee, Mark Racene; Mayone Sr. required employees to
withdraw from and disavow the Union before they would be
permitted to return to work, Parkview Gardens Care Center,
280 NLRB 47 (1986); and both Mayones discharged the em-
ployees for continuing, in the face of their threat to discharge
them, their concerted refusal to work on May 9. The threats
to discharge were unlawful, Conair Corp., 261 NLRB 1189
(1982); Emerson Electric Co., 287 NLRB 1065 (1988). So
too were the discharges which became effective when the
employees refused to return to work the morning of May 9.
There is no question but that the Mayones’ statements that
morning would reasonably lead the drivers to believe they
had been discharged. All of them, except possibly Turk, first
sought leave to return to work from their terminated state.
See Rapid Armored Truck Corp., 281 NLRB 371 (1986);
NLRB v. U.S. Cold Storage Corp., 203 F.2d 924, (5th Cir.
1953). See also Abilities & Goodwill, 241 NLRB 27 (1979),
where the Board held that discriminatorily discharged strikers
are to be treated no differently than other unlawful dis-
charges, and, accordingly, are entitled to reinstatement and
backpay from the date of the employer’s unlawful action.
Respondent in its brief questions whether it was likely that
an employer would both discharge, and promise or improve
terms and conditions of employment of, the same employees.
The answer here was clearly yes. The Mayones used both the
carrot and the stick. The stick was imposed early, and when
it initially proved ineffective, that is to say, when no employ-
ees broke ranks on learning they were fired for continuing
to remain in the parking lot, Mayone Sr. emphasized other
tactics. Even as the Union was waiting for the reply to its
demand for collective bargaining, Respondent made direct
approaches to bargain individually, and sought to make deals
based on individual employee concerns and grievances. This
unlawful approach proved the more effective.
When employees believed that the Company meant what
it said and it would never deal with the Union, and would
refuse to employ those who insisted on continued exercise of
their Section 7 rights—a number of witnesses, among them
Sanchez and Colletti make this point most effectively—even
before the second day of striking and picketing was com-
pleted, the employees’ resolve had crumbled and Mayone Sr.
was ready to couple again the carrot and the stick. He held
out the wage increases and health plan premium payments
which he had previously generally discussed as now being
available to those who crossed the picket line, but only on
the condition that the union application be withdrawn. That
way, in Mayone Sr.’s view, without benefit of counsel, he
would be ridding the Company of any possible claim of con-
tinued union representation or interest in his employees, and
satisfying the major employee grievance, whether stated or
not, that he had failed to fulfill his earlier indefinite promises
of ‘‘soon’’ providing salary or benefit improvements. As to
the condition imposed for their return, the fact that Colletti
was the individual who had prepared and circulated the form
withdrawals of the employees’ union applications is no de-
fense to the allegation of violation since the taint to Colletti’s
activity arises from the evidence of establishment of an em-
ployer strategy, shown directly in Carter’s testimony and in-
ferable from the credited testimony of other employees.
Colletti thus acted in this regard as an agent of Respondent
in securing the union resignations which Mayone Sr. re-
quired.
That these increases, all conveniently made effective on
the employees’ return to work, were rewards for the loyalty
shown of abandoning the Union is abundantly clear.
Sanchez’ testimony on this matter is directly to the point. As
noted, Mayone Sr.’s explanation for granting the benefits
when all the vans were on the premises is unconvincing, par-
ticularly when Mayone Sr. could not justify the improve-
ments granted Carter, Colletti, and Cymbalisty as having any
relationship to the loss of a van or increased out of pocket
expenses. Similarly, the greater openness Mayone Sr. showed
employees in communicating with them about their status,
salaries or work related concerns immediately after their re-
turn to work, was a benefit directly related to the unlawful
interrogations and promises in which Mayone Sr. had en-
gaged during the strike and picketing.
Mayone Sr.’s conduct toward Micelli and Macie, the two
known union ringleaders, is particularly revealing as to
Mayone Sr.’s true, unlawful motivations in discharging his
employees, in granting them benefits, insisting on their with-
drawals from union affiliation and in refusing to recognize
or bargain with the Union. Micelli had already been fired
along with the others, when on May 11 he was told first
without any foundation, that he had been replaced and then
that he could take Respondent’s refusal to allow him to re-
turn anyway he wanted (including as a firing). Mayone Sr.’s
later direction to Micelli to cease contact with employees re-
garding the Union and his harassment of Micelli to get him
to produce his affidavit for Respondent’s use, are clear viola-
tions of the Act. Respondent’s directions to other employees
to produce their affidavits, while not as extreme in their co-
ercive nature as that directed to Micelli, were likewise un-
lawful by virtue of Mayone’s failure to provide any of them
the safeguards dictated by Johnnie’s Poultry Co., 146 NLRB
770, 775 (1964), including the failure to assure them that no
reprisals would be taken for their refusal or failure to comply
and that the requests were voluntary in nature.
Macie was not taken back at the time other employees re-
turned when he rejected Mayone Sr.’s unlawful condition of
union disavowal, and was not offered reinstatement until
more than a month later. Surely another factor in this delay
was Mayone Sr.’s failure to obtain cooperation from Macie’s
mother in getting her son to come back to work in return for
his help in Macie’s purchase of an automobile.
The complaint alleges and I also conclude that the strike
was prolonged by Respondent’s unfair later practices, C-Line
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Respondent submits that a letter it sent to all employees on June 14,
1988, constitutes a ‘‘rectifying measure’’ curing whatever coercive effects
there were from its conduct, assuming it to be found unlawful. Rather than
remedying its conduct, the letter compounds the coercive nature of its conduct
by alluding to the Teamster Local 669 use of ‘‘muscle’’ by calling a strike-
found herein to have been called after the unlawful discharge of the employ-
ees, other unlawful acts, and bad faith refusal to bargain had commenced. The
reference to hiring of replacement to continue its business is also a
misstatement of the facts as found herein. The subsequent recital of the alleged
rights of the employees under the Act cannot shield Respondent from the con-
sequences of its prior, subsequent, and continuing unfair labor practices. Nei-
ther does the Respondent’s unlawful conduct subsequent to this letter within
a month after the events nor the Mayones’ nor the employees’ prevarications
and lies on the witness stand provide any assurance that the purported prom-
ises contained in this letter had any meaning for either of then. In short, the
purported repudiation does not admit wrongdoing, was untimely, was not free
from its other and continuing illegal conduct for which it failed to provide a
make whole remedy, and was premised on a series of untruths. See Scott &
Fetzer Co., 228 NLRB 1016 (1977), and cases cited at 1024. See also Pope
Maintenance Corp., 228 NLRB 326, 340 (1977), and Ambulette Transpor-
tation Service, 287 NLRB 224 (1988).
Express, 292 NLRB 638 (1989), thus converting the strike
for recognition into an unfair labor practice strike. Bay Area-
Los Angeles Express, 275 NLRB 1063, 1087 (1985); Vulcan-
Hart Corp., 262 NLRB 167, 168 (1982). The testimony of
Micelli and Macie as to what motivated their striking and
picketing after the events of the early morning of May 9 is
instructive in this regard.
D. Bargaining Order
I have previously found that the Union represented 10 of
the 12 unit employees when it demanded bargaining on May
9. The Union’s designation by these employees was evi-
denced by signed cards authorizing the Union to represent
them for purposes of collective bargaining. The designation
of the Union was further supported and evidenced by the em-
ployees’ presence in a group in Respondent’s parking lot
early on the morning of May 9 when the union agents Lester
and Wood demanded bargaining and the employees refused
to break solidarity or return to work, struck for recognition
and, with the exception of Turk, commenced picketing in
support of the demand.
The complaint alleges that the Respondent’s conduct in
this case was such that it warrants the issuance of a bar-
gaining order. The test for determining whether a bargaining
order should issue here has been expressed by the Supreme
Court as one requiring an examination as to whether ‘‘the
possibility of erasing the effects of past practices and of en-
suring a fair election . . . by the use of traditional remedies,
though present, is slight and . . . employee sentiment once
expressed through cards would, on balance, be better pro-
tected by a bargaining order.’’ NLRB v. Gissel Packing Co.,
395 U.S. 575, 614–615 (1969). In determining whether to
use this remedy, the Court noted that the Board may properly
consider ‘‘the extensiveness of an employer’s unfair labor
practices in terms of their past effect on election conditions
and the likelihood of their recurrence in the future.’’ Id. at
614–615. See also Arkansas Lighthouse for the Blind, 284
NLRB 1214 (1987).
I conclude that the Respondent’s unfair labor practices
were so pervasive, immediate, and massive as to preclude the
possibility that an election could fairly reflect the unfettered
sentiments of the employees, even with an extensive passage
of time since the conduct engaged in here. The employees
cannot fail to recall the immediate smashing of their collec-
tive effort at fairer treatment and minimal improvements in
their wages and health care coverage. Nor can they dismiss
the degree to which Respondent acted on their fears and con-
cerns to undermine their joint enterprise by firing them, vow-
ing never to deal with their union, and then cajoling, offering
benefits, and permitting their return to work and delivering
on those promises, but only at the price of their rejection in
writing of their bargaining agent. Furthermore, there is every
reason to believe that Respondents’ misconduct is likely to
recur. Thus, Mayone Sr. took after Micelli,—a known ring-
leader,—at every opportunity well after the employees’ union
drive had been defeated to make sure he avoided union
agents, and refrained from any attempts to resurrect the
union movement among his cohorts. Mayone Sr.’s subse-
quent unlawful conduct in soliciting evidence for the trial of
this matter shows that Mayone Sr. many months after most
of the events involved herein had transpired, was fixed in his
continued hostility and animosity to accepting the principle
of collective bargaining. Mayone Sr.’s vow that as long as
he owned the business ‘‘there ain’t going to be no God
dammed union here’’ is the strongest possible proof of what
Respondent’s position is likely to be were an election found
to be the preferred means of determining employee majority
sentiment rather than the cards they each signed before the
Respondent’s illegal onslaught.
In sum, the coercive impact of Respondents’ conduct has
not dissipated11 and with a strong likelihood of its recurring,
anything less than the imposition of a bargaining order on
the facts presented ‘‘would, in effect, reward the
Respondent[s] for [their] own wrongdoing.’’ Kona 60 Minute
Photo, 277 NLRB 867, 870 (1985). See also Bakers of Paris,
288 NLRB 991 (1988); Fimco, Inc., 282 NLRB 653 (1987);
and Color Tech Corp., 286 NLRB 476 (1987), where bar-
gaining orders issued to remedy conduct similar to the alle-
gations made and proven in the instant proceeding. Neither
should the passage of time, ‘‘regrettable’’ as it may be, con-
stitute a sufficient basis for denying a bargaining order here.
Quality Aluminum Products, 278 NLRB 338 (1988), enfd.
813 F.2d 795 (6th Cir. 1987). Accord: Exchange Bank v.
NLRB, 732 F.2d 60, 63–64 (6th Cir. 1984); NLRB v. Pacific
Southwest Airlines, 550 F.2d 1148, 1152–1153 (9th Cir.
1977); Dayton Auto Electric, 278 NLRB 551 (1986).
CONCLUSIONS OF LAW
1. Respondents Fun Connection and Juice Time; Offi-
Serve, Div. of Stuff Like That, Inc.; and Capitol Vending
and Columbia Vendors, collectively called Respondent, are
each employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Bakery, Laundry, Beverage Drivers and Vending Ma-
chine Servicemen and Allied Workers Local No. 669, affili-
ated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By informing their employees that they would never
recognize or deal with a union, and that they were dis-
charged for engaging in union or other protected concerted
activities, by interrogating their employees concerning their
union and/or protected concerted activities, by soliciting
grievances from their employees and impliedly and explicitly
promising to redress them and institute improvements in
761FUN CONNECTION & JUICE TIME
12 Under New Horizons, interest is computed at the ‘‘short-term Federal
rate’’ for the underpayment of taxes as set out in the 1986 amendment to 26
U.S.C. Sec. 6621. Interest accrued before January 1, 1987 (the effective date
of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB
651 (1977).
terms and conditions of employment, and to provide other
benefits including cosigning for an automobile loan if em-
ployees ceased their support for the Union, by instituting as
a condition of employment a requirement that employees
sign a statement disavowing the Union and withdrawing their
union authorization cards, by directing their employees to
produce their NLRB affidavits in the course of preparation
for trial, without the specific safeguards required by the Act,
and by directing an employee to abstain from contact with
the Union or with other employees, in order to solicit their
support for the Union, Respondents have restrained and co-
erced their employees in the exercise of the rights guaranteed
by Section 7 of the Act and have thereby engaged in and are
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By rescinding their practice of permitting employees to
bring Respondents’ vans to their homes at night and, at the
same time, instituting, at the option of their employees, a
weekly salary increase or a like increase in Respondents’
contribution to health insurance premiums, or other improve-
ments in terms and conditions to employment, in order to
discourage their employees’ support for and activities on be-
half of the Union, Respondents have engaged in and are en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act.
5. The employees of Respondents who ceased work
concertedly and went on strike on May 9, 1990, were en-
gaged in a protected concerted activity within the meaning
of Section 7 of the Act.
6. By terminating the employment of their employees
Mark Racene, Steve Colletti, Rick Thrush, Robert Wyant,
James Macie, Kenneth Cymbalisty, Harold Turk, Rick
Sanchez, Joseph Micelli, and Malcolm Carter on May 9,
1988, because they ceased work concertedly and engaged in
the strike described in paragraph 5, above, Respondents have
engaged in and are engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
7. All route salesmen, drivers, mechanics, and warehouse-
men employed by Respondents at their facilities located at
Ravina and Coeymans, New York, excluding all other em-
ployees, guards and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
8. Beginning or or about May 8, 1988, the Union rep-
resented a majority of the employees in the above-described
appropriate unit, and has been, and is, the exclusive rep-
resentative of all the employees for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
9. By refusing to recognize and bargain with the Union
with respect to the employees in the appropriate unit de-
scribed above on and after May 9, 1988, the Respondents
have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
10. By engaging in the conduct described in paragraphs 3,
4, 6, and 9, above, Respondents prolonged the strike de-
scribed in paragraph 5 above and converted the economic
strike into an unfair labor practice strike.
11. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I find it necessary to order Respond-
ents to cease and desist therefrom and to take certain affirm-
ative action designed to effectuate the policies of the Act.
Respondents having discriminatorily discharged certain of
their employees, I find it necessary to order them to com-
pensate these employees for any loss of earnings or other
monetary losses they may have suffered as a result of the
discriminations against them, less interim earnings, if any,
with interest thereon as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987),12 for the period from
their unlawful discharges, on May 9, 1988, to the date they
were each offered reinstatement. Any questions regarding the
availability for employment of strikers Micell and Macie dur-
ing the backpay period is reserved for the compliance stage
of this proceeding. See Abilities & Goodwill, 241 NLRB 27,
28–29. Each of the discharged strikers having either been re-
instated or offered reinstatement by Respondents, I deem it
unnecessary to order them to offer reinstatement to any of
them. Inasmuch as Respondents have engaged in misconduct
of such a widespread and pervasive nature so as to dem-
onstrate a general disregard for the employees’ fundamental
rights, I find it necessary to issue a bargaining order and a
broad order, requiring the Respondent to cease and desist
from infringing in any other manner on rights guaranteed
employees by Section 7 of the Act.
[Recommended Order omitted from publication.]