Gemco

National Labor Relations Board - Board Decisions

May 29, 1986

279 N.L.R.B. 1138 (N.L.R.B. 1986)

1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lucky Stores, Inc. d/b/a, Gemco and General
Teamsters and Food Processing Local 87, Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
31-CA-12999
29 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 29 September 1983 Administrative Law
Judge William J. Pannier III issued the attached
decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed a
brief in response to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions as modified.
The Respondent has excepted, inter alia, to the
judge's conclusion that it created the impression of
surveillance of employees' union activities in viola-
tion of Section 8(a)(1) of the Act. We find merit in
the Respondent's exceptions to the judge's conclu-
sion.
The pertinent facts are as follows. On 24 January
1983 a union representative, in response to a tele-
phone call from employee Martinez, visited the Re-
spondent's warehouse and spoke to Martinez and
two other employees. The union representative
also distributed authorization cards, which the em-
ployees signed. The next day, Martinez was called
to Warehouse Manager Jaramillo 's office and given
three warning notices involving matters unrelated
to the above incident. After engaging Martinez in
casual conversation , Jaramillo asked if Martinez
had called the Union in. Martinez denied having
done so. Jaramillo responded that "someone" had
seen Martinez talking to the union representative
and that the union representative had approached
Martinez first. Martinez responded that the union
representative was nearest to Martinez and came
up to him and called him by name because the
union representative noticed Martinez ' name tag.
Then Jaramillo asked what Martinez did and
i The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
We note that no exceptions were filed to the judge 's disposition of the
issue set out at fn 5 of his decision
whether Martinez had signed an authorization
card. Martinez answered that the union representa-
tive talked to the warehouse employees about the
authorization cards. Finally, Martinez stated that
all but one of the warehouse employees had signed
authorization cards.
Although noting that Martinez' conversation
with the union representative was conducted
openly, the judge found that Jaramillo's statement
that "someone" had seen Martinez talking to the
union representative led Martinez to believe that he
was under surveillance. In so finding, the judge
noted that Jaramillo did not actually see Martinez
meeting with the union representative, that Marti-
nez did not openly support the Union, and that Jar-
amillo did not tell Martinez how he learned about
the meeting. Considering that Jaramillo's remarks
were specific and occurred in the context of an un-
lawful interrogation,2 and that Jaramillo had initi-
ated the conversation, the judge concluded that
Jaramillo's remarks created the impression of sur-
veillance of employees' union activity.
Contrary to the judge, we do not find that the
Respondent violated Section 8(a)(1) by creating the
impression of surveillance of employees' union ac-
tivity. The Board has held that when remarks are
made by an employer concerning an openly held
meeting between a union representative and an em-
ployee, it is unreasonable for an employee to
assume that the employer acquired knowledge of
the meeting through surveillance.3 In the present
case , Martinez met with the union representative in
an open area outside the pickup area on the Re-
spondent's premises and in front of the security
desk. Martinez testified that he knew that the secu-
rity guard had observed his conversation with the
union representative. Therefore, it would be unrea-
sonable for Martinez to assume that the Respond-
ent learned about his meeting with the union repre-
sentative through surveillance. Accordingly, we
find that the Respondent did not violate Section
2 We find that Jaramillo's interrogation of Martinez constituted coer-
cive conduct in violation of Sec 8(a)(1) In this regard , Martinez was
called into the warehouse manager's office and was subjected to a series
of questions which had no lawful purpose He was asked if he had called
in the Union When he denied this, he was asked to explain why the
union representative had approached him first Then, he was directly
asked whether he had signed a card and responded that all but one of the
warehouse employees had Although Martinez soon left the Respondent's
employ, the Respondent knew by then , through its interrogation of him,
the union sentiments of all but one of its warehouse employees This sys-
tematic questioning of a suspected union supporter was clearly unlawful
and, in the circumstances of this case , we find that the de mmimis doc-
trine is inapplicable Accordingly, we find it unnecessary to pass on the
judge's general discussion of the de minimis doctrine and of the Board's
powers under Sec 10(c) of the Act
3 See, e g , Century Moving di Storage, Inc, 251 NLRB 671, 676 (1980),
modified on other grounds 683 F 2d 1087 (7th Cir 1982), Palby Lingerie.
Inc, 252 NLRB 176 (1980)
279 NLRB No. 153
GEMCO 1139
8(a)(1) of the Act by creating the impression of
surveillance of employees' union activities.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Lucky Stores, Inc. d/b/a Gemco, Ba-
kersfield, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Interrogating employees concerning their
sympathies for and activities on behalf of General
Teamsters and Food Processing Local 87, Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America or on behalf of
any labor organization."
2. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting in part.
Contrary to my colleagues, I find that the Re-
spondent's questioning of employee Martinez was
isolated and de minimis and, therefore, I would dis-
miss the complaint in its entirety. As the Board
stated in an earlier case, "the alleged misconduct
here is of such obviously limited impact and signifi-
cance that we ought not to find that it rises to the
level of constituting a violation of our Act."' Both
this allegedly unlawful interrogation and the sur-
veillance allegation which we dismiss involve the
same conversation between Warehouse Manager
Jaramillo and Martinez. As noted by the majority,
after discussing other matters, Jaramillo asked Mar-
tinez whether he had called in the Union, why the
union representative has spoken to Martinez before
other employees, and whether Martinez had signed
an authorization card. All these questions stemmed
from Martinez' openly engaging in organizational
activity in the plain view of the Respondent's secu-
rity personnel. It may well be that ordinarily such
questioning would constitute a violation of Section
8(a)(1) of the Act. Here, however, the totality of
circumstances demonstrates that the effect of this
questioning was so minimal that it will not serve
the purposes of the statute to find a violation.
The Board's longstanding test for evaluating
whether an interrogation violates the Act is
"whether under all the circumstances the interroga-
tion reasonably tends to restrain, coerce, or inter-
fere with rights guaranteed by the Act."2 The Re-
spondent's conduct at issue here clearly does not
meet that test. This allegation concerns a single in-
cident involving a single employee who left his job
less than 2 weeks after the conversation. No other
employee knew that this questioning had occurred,
and the Respondent did not use any information
obtained in the interrogation as a basis for acting
adversely against any employee. There is no evi-
dence that the Respondent committed any other
unfair labor practices or interfered with the subse-
quent representation election. Thus, that alleged
misconduct occurred in circumstances in which its
impact did not extend beyond the employee direct-
ly involved. This conversation cannot be viewed in
a vacuum; it must be considered in the total con-
text of the Respondent's relationship with its em-
ployees and the Union. This single isolated incident
could not empirically have the required reasonable
tendency to interfere with protected rights.
The Board has previously held that certain con-
duct, limited in impact, significance, and effect,
does not rise to the level of constituting a violation,
even though the same conduct, if engaged in on a
more widespread basis, or under circumstances in
which its impact can be anticipated to be signifi-
cant, would constitute a violation.3 The Board has
referred to such cases as involving "de minimis
violations." The use of this term has led to some
confusion and misunderstanding about its applica-
tion and is, strictly speaking, a misnomer in that no
violation is actually found. Similarly, the Board's
use of the term "technical violation" in discussing
de minimis conduct also is a misnomer. What is ac-
tually involved in these cases is the Board's deter-
mination that the quantum of misconduct at issue is
insufficient to constitute a violation.
A review of the cases the Board has found to fall
within the application of its de minimis standard
demonstrates that all or almost all of them, concern
allegations of violations of Section 8(a)(1) or Sec-
tion 8(b)(1)(B) of the Act. In a recent decision, for
example, the Board found that an employer's
asking a job applicant, who was subsequently
hired, whether he would cross a picket line in the
event of a strike did not rise to the level of an
8(a)(1) violation.4 The same holds true for the situ-
ation presented in this case, which boils down to
fleeting remarks limited to an employee who soon
thereafter was no longer employed. I do not be-
lieve that the mission of this Agency is furthered
by finding a violation in such unwarranted circum-
' Musicians Local 76 (Jimmy Wakely Show), 202 NLRB 620, 621 (1973)
2 Blue Flash Express, 109 NLRB 591 (1954), Rossmore House, 269 ' E g , Jimmy Wakely, supra, Bellinger Shipyards, 227 NLRB 620
NLRB 1176 (1984), affd sub nom Hotel & Employees Local 11 v NLRB, (1976), Wichita Eagle & Beacon Publishing Co, 206 NLRB 55 (1973),
760 F 2d 1006 (9th Car 1985), Sunnyvale Medical Clinic, 277 NLRB 1217 Square D Co, 204 NLRB 154 (1973)
(1985). 4 American Thread Co, 274 NLRB 1112 (1985)
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances .5 The Board currently has a substantial
backing of more than 1200 cases awaiting decision.
In view of that workload we should not expend
valuable time and limited resources on a matter as
insignificant as the questioning presented here, but
rather should concentrate our attention on cases in-
volving meaningful conduct and real disputes. Ac-
cordingly , I see no efficacy in involving the Board
in a case of so little moment and would dismiss the
complaint in its entirety.
° The judge in this case engaged in an extensive analysis of the de mi-
mimis doctrine and the Board 's remedial authority under Sec 10(c) of the
Act He concluded that although the alleged interrogation here was not
de minimis , the Board does possess the discretionary power to withold a
remedial order on finding that a respondent has committed a de mimrmis
violation In my view, the judge 's interpretation of Sec 10(c) is incorrect
It is clear from the statute that once the Board finds a violation , it must
issue a cease -and-desist order . The two circuit courts which have passed
expressly on the pertinent language of Sec 10(c) have agreed that it is
not within the Board 's discretion to withold a remedy once a violation is
found Auto Workers Y. NLRB, 427 F 2d 1330 (6th Cir 1970), Woodwork-
ers v. NLRB. 380 F.2d 682 (D C Cir 1967)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE-
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interrogate you concerning your
sympathies for or activities on behalf of any labor
organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
LUCKY STORES, INC. D/B/A GEMCO
Richard S. Zuniga and Mori Rubin , for the General
Counsel.
Thomas F. Ryan, Donald W. Wallace, and Richard H.
Loomis (McLaughlin and Irvin), of Los Angeles, Cali-
fornia , for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III , Administrative Law Judge.
This matter was heard by me in Bakersfield, California,
on August 11, 1983.1 On May 20, the Regional Director
for Region 31 of the National Labor Relations Board
issued a complaint and notice of hearing , based on an
unfair labor practice charge filed on April 5, alleging
violations of Section 8(a)(1) of the National Labor Rela-
tions Act. All parties have been afforded full opportunity
to appear, to introduce evidence, to examine and cross-
examine witnesses , and to file briefs. Based on the briefs
filed on behalf of the parties, and on my observation of
the demeanor of the witnesses , I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material , Lucky Stores Inc. d/b/a Gemco
(Respondent) has been a California corporation with an
office and place of business located in Bakersfield, Cali-
fornia , where it engages in the operation of a general
merchandise retail store. During the past calendar year,
in the course and conduct of its business operations, Re-
spondent derived gross revenues in excess of $500,000
and, during that same year , purchased goods and serv-
ices valued in excess of $50,000 directly from suppliers
located outside the State of California . Therefore, I find,
as admitted in the answer to the complaint , that at all
times material , Respondent has been an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, General Teamsters and Food
Processing Local 87, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America (the Union), has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUE
The entire controversy in this proceeding centers on
the substance of a single conversation between Ware-
house Manager Richard Jaramillo2 and then-warehouse-
man Richard Martinez3 on January 25.4 According to
the complaint, Respondent violated Section 8(a)(1) of the
Act during that conversation by Jaramillo's interrogation
concerning Martinez ' union activities , sympathies, and
' Unless stated otherwise , all dates occurred in 1983
2Respondent admits the allegation that at all times material Jaramillo
had been a supervisor within the meaning of Section 2(11) of the Act and
an agent of Respondent
3 Martinez was laid off or discharged by Respondent about February
5 Although he has not worked for Respondent since that date, there is
no evidence that he is not eligible for reemployment by Respondent
4 Because the charge was filed on April 5 and because both Martinez
and Jaramillo agreed that their conversation had occurred on January 25,
well within the 6-month limitation period of Sec 10(b) of the Act, I
grant the General Counsel 's motion to strike the affirmative defense that
the allegations of the complaint are barred by the limitation period of
that subsection of the Act
GEMCO
desires and, further, because Jaramillo had said that Mar-
tinez had been seen talking to a person from the Union,
thereby creating the impression of surveillance of em-
ployees' union activities.5 Respondent denies that such
remarks were uttered by Jaramillo Further, it contends
that even if such comments had been made, they would
not have been coercive "because of the nature of the re-
lationship between the supervisor and said employee, and
the time and place of the alleged conversation " More-
over, Respondent further asserts that any questioning of
Martinez by Jaramillo had constituted no more than
"casual, isolated polling" of an employee that is not pro-
hibited by the Act. Finally, even if there were violations
of the Act committed during the conversation, an issue is
presented whether their effect is isolated or de minimis
and, accordingly, not sufficient to warrant issuance of a
remedial order
IV FINDINGS OF FACT
In January, one of Respondent's boxgirls had told
Martinez that her father, Don Frazer, was a union repre-
sentative and wanted to talk to the warehouse employees
employed by Respondent about becoming represented.
She asked Martinez to telephone Frazer and Martinez
did so a few days later. As a result, on January 24,
Frazer came to Respondent's premises. On that occasion,
he spoke to Martinez outside the pickup area in the pres-
ence of Phillip "Tony" Munoz, a warehouseman who, at
least during January and February, was Warehouse Man-
ager Jaramillo's roommate. During the course of that
conversation, Frazer distributed cards authorizing the
Union to serve as bargaining representative. Munoz and
Martinez each signed one
During the afternoon of the following day, January 25,
Martinez was paged to report to Jaramillo's office. Once
he arrived there, he was given three warning notices,
two of which were dated January 23, with the third
being dated January 24. One of the notices was for deliv-
ery of the wrong-sized product. Another was for failure
to complete his timecard. The final one was for having
5 Respondent moved to dismiss the complaint on the ground that at no
place in the charge is there any specific reference to interrogation or cre-
ation of the impression of surveillance by Respondent Consequently,
urges Respondent, the substantive allegations of the complaint are not
supported by those listed in the charge and, because of that fact, it argues
that the complaint must be dismissed I deny Respondent's motion It is
accurate that in that portion of the charge calling for a statement of the
"BASIS OF THE CHARGE," the only allegation recited pertains to dis-
crimination against Martinez, allegedly occurring in mid-February Yet,
the charge recites that Respondent has violated "SECTION 8(a), SUB-
SECTIONS (1)" as well as "(3)" of the Act Further, printed at the
bottom of the "BASIS OF THE CHARGE" section is the phrase "BY
THE ABOVE AND OTHER ACTS, THE ABOVE-NAMED EM-
PLOYER HAS INTERFERED WITH, RESTRAINED, AND CO-
ERCED EMPLOYEES IN THE EXERCISE OF THE RIGHTS
GUARANTEED IN SECTION 7 OF THE ACT " it has been held that
these printed portions are sufficient to support allegations of specific acts
of interference, restraint, and coercion in complaints, even though those
acts are not enumerated specifically in charges underlying those com-
plaints FTS Corp, 184 NLRB 787, 789 (1979), and cases cited in fn I
This is so because it is settled that a charge is not a formal pleading and
it is the complaint which is intended to give notice to a respondent of the
exact nature of the allegations against which it must defend See Texas
Industries v NLRB, 336 F 2d 128, 132 (5th Cir 1964)
1141
left work early. Martinez was instructed to sign each one
and he did so.
Martinez testified that after he had signed the notices,
the meeting had continued with discussion of a personal
subject, although he did not recall the substance of what
had been discussed at that point. Then, testified Marti-
nez, Jaramillo had asked if Martinez had called in the
Union and when Martinez denied having done so, Jara-
millo had retorted that "someone" had seen Martinez
talking to a union representative and "that the rep came
up to [Martinez] first . ." According to Martinez, he
had responded by explaining that he and Munoz had
been returning from a delivery, that Frazer had noticed
his (Martinez') name tag on his shirt, because he had
been "the closest one to [Frazer] outside," and that
"that's why he called me by my name." Martinez further
testified that Jaramillo had asked if Martinez had signed
a union card6 and that he had replied that Frazer had
talked and given cards to all warehouse people. save for
the receiver, who the employees had been unable to
locate for Frazer, and that all the employees had signed
cards.
Although he agreed that he had summoned Martinez
to the office on January 25 and had issued three warning
notices to him during the course of the conversation that
had ensued, Jaramillo denied having said anything to
Martinez about the Union, denied having said anything
about Martinez having been seen with a union represent-
ative on the preceding day, and denied either personally
having seen Martinez with a union representative or
having been told by anyone that Martinez had been seen
with a union representative on January 24 Rather, testi-
fied Jaramillo, after having signed the third warning
notice, Martinez "had mentioned if it had anything to do
with work performance, and I said, nothing to do with
it. That was it. I say then from there on, he had left the
office."
V. ANALYSIS
A. Credibility of Martinez
I credit Martinez' account of the January 25 conversa-
tion. When he testified, Martinez appeared to be a sin-
cere and forthright individual who was testifying candid-
ly regarding what had been said during that conversa-
tion Moreover, his account is consistent with the objec-
tive fact that Jaramillo admitted that, prior to their con-
versation on that day, he had been informed by the re-
ceiver, Mike Beregochea, of Frazer's visit to Respond-
ent's facility and that Frazier had been soliciting signa-
tures on authorization cards during the course of that
visit Though Jaramillo claimed, as quoted above, that
Martinez had asked if the warning notices "had anything
to do with work performance," such an account makes
no sense in the context of the undisputed portion of their
6 During direct examination, Martinez testified that Jaramillo had
asked only "what did I do" after Frazer had called Martinez by name
However, on redirect examination and, again on recross-examination,
when this particular aspect of the conversation was focused on, Martinez
testified that Jaramillo had asked specifically if Martinez, at least, had
signed a card
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation. For, clearly the warning notices-one con-
cerning delivery of a wrong-sized product, another for
not completing a timecard, and the final one for not
having worked the entirety of scheduled worktime-did
pertain to Martinez' "work performance." Thus, it would
have made no sense for him to have inquired of "it"-a
term that went undefined regarding meaning and , again,
makes no sense in the context of the agreed-on portion of
the conversation-"had anything to do with work per-
formance." Therefore, based on my observation of Mar-
tinez when he testified and also on a review of the
record of the testimony, I credit Martinez' account of
what had been said during his conversation with Jara-
millo on January 25.7
B. Creation of the Impression of Surveillance
Based on that account, the General Counsel alleges
that Respondent violated Section 8(a)(1) of the Act in
two regards: that Jaramillo's comments had created the
impression of surveillance of employees' union activities
and that Jaramillo had interrogated Martinez concerning
union activities. With respect to the former, as set forth
above, Jaramillo had asked if Martinez had called in the
Union and, after the latter had denied having done so,
then had asserted that "someone" had seen Martinez
talking to a union representative who had approached
Martinez before having spoken to Respondent's other
employees. "It is an unfair labor practice for an employ-
er to create in the minds of employees an impression that
he is closely observing union organizational activity " J.
P. Stevens v. NLRB, 638 F.2d 676, 683 (4th Cir. 1980)
That is so because surveillance, itself, "tends to demon-
strate spectacularly the state of the employer's anxiety.
From this the law reasons that when the employer either
engages in surveillance or takes steps leading his employ-
ees to think it is going on, they are under the threat of
economic coercion, retaliation, etc." Hendrix Mfg. Co. v.
NLRB, 321 F 2d 100, 104, fn. 7 (5th Cir 1963). Accord-
Filler Products v. NLRB, 376 F.2d 369, 374-375 (4th Cir.
1967).
Here, although it is accurate that Martinez had spoken
to Frazer on January 24, "there is no evidence that [Jara-
millo's] remark was based on actual surveillance." Perko's
Inc., 236 NLRB 884 fn. 2 (1978). Moreover, so far as the
record discloses, Frazer's conversation with Martinez
had been conducted openly and without any effort by
either of them to conceal the fact that they were engag-
ing in discussion. Accordingly, at first blush, it might
well appear that "there is nothing in the record to sug-
gest that [Jaramillo's] knowledge of [that conversation]
could [not] have been acquired through casual and
7 In its brief, Respondent argues that it would not have been logical
for Jaramillo to have asked whether Martinez had signed an authoriza-
tion card inasmuch as Beregochea already had disclosed to Jaramillo that
all three warehousemen had signed cards and , thus, Jaramillo already
knew that Martinez had signed a card However, this argument over-
looks the fact that Jaramdlo had initiated the exchange concerning the
Union by asking not whether Martinez had signed a card, but whether
Martinez had been the one who had called in the Union Moreover, al-
though it might not have been "logical for Jaramillo to inquire about a
subject he knew the answer to," if his only purpose had been to obtain
information , it would not have been illogical for Jaramdlo to have done
so in an effort to intimidate Martinez
normal observation of the employees." Keystone Pretzel
Bakery, 242 NLRB 492, 493 (1972). That is, that it
cannot be said that the fact of the conversation's occur-
rence would not have been disclosed by the normal
"brief inspection by Respondent of open union activity
[on] its property." Palby Lingerie, 252 NLRB 176 (1980)
Yet, it must be kept in focus that in this area of cre-
ation of the impression of surveillance, the issue present-
ed is not whether surveillance actually did occur, but
rather whether employees were led to believe, by the
employer's statements and actions that it had been occur-
ring See, e.g., Overnite Transportation Co., 254 NLRB
132, 133 (1981), citing American National Stores, 195
NLRB 127 (1972); Joint Industry Board of the Electrical
Industry, 238 NLRB 1398, 1399 (1978). Further, in
making that determination, focus must center on the nat-
ural effect on employees of the employer's statement(s),
rather than on "[h]owever innocent the comments may
appear to a disinterested observer." J. P. Stevens, supra
In the instant case, during the conversation on January
25, Jaramillo disclosed, in essence, that he was aware
that a union representative had been at Respondent's
premises on the preceding day, that the representative
had spoken with Martinez while there, and that the rep-
resentative had spoken to Martinez before having spoken
with any of Respondent's other employees. Statements to
the effect that an employer is aware that an employee
has met with union representatives have been held to
violate Section 8(a)(1) of the Act See, e.g., NLRB v.
Gerbes Super Markets, 436 F.2d 19, 21 (8th Cir. 1971).
Although, as noted above, Martinez had spoken openly
with Frazer, Jaramillo had not observed that conversa-
tion and there is no evidence that Martinez would have
had a basis for believing that, in the normal course of af-
fairs, Jaramillo had done so. Moreover, there is no evi-
dence that in any other fashion Martinez had "openly
supported the Union," Aero Corp., 237 NLRB 455 fn. 2
(1978), in the sense that there is evidence sufficient to
conclude that his "prounion sympathies were a matter of
common knowledge and he was aware that his views
were known to others." U.S. Industries, 247 NLRB 361
fn. 3 (1980), especially to Respondent's supervisors Fur-
ther, the record is devoid of evidence that, prior to the
January 25 conversation, the Union or any of its support-
ers had made any general announcement about or had in-
formed Respondent that an organizing campaign was
being conducted. C. E. Wilkinson & Sons, 255 NLRB
1367, 1369 (1980). Yet, at no point during their conversa-
tion did Jaramillo say exactly how he had learned that
such a campaign was in progress and that Martinez had
been spoken to by the Union's representative before
other employees had been approached. Cf. Tartan
Marine Co., 247 NLRB 646 (1980), affd. as modified on
other grounds 644 F 2d 882 (4th Cir. 1981). In these cir-
cumstances, Jaramillo's remarks made Martinez aware
that Respondent possessed knowledge of Martinez' union
activities but left the latter to wonder how that knowl-
edge had been acquired
The likelihood that Jaramillo's remarks naturally
would have left an employee with the impression that
Respondent had been engaged in surveillance of employ-
GEMCO
ees' union activities is but reinforced by certain other
factors present in this case . First , it had been Jaramillo,
not Martinez , who had initiated discussion of the subject
on January 25 Cf. General Battery Corp., 241 NLRB
1166 fn 2 (1979). Second , Jaramillo's remarks to Marti-
nez were specific , directed at a specific conversation that
had occurred on the preceding day, rather than "general-
ized statements . . . not directed at any employee's ac-
tivities ." Palby Lingerie , supra.
Finally, Jaramillo 's comments disclosing his awareness
of Martinez ' discussion with Frazer on January 24 oc-
curred in the context of interrogation , concluded below
to have been unlawful , of Martinez regarding whether he
had been the employee who had initiated the Union's or-
ganizing campaign and whether he had signed a card au-
thorizing the Union to represent him. The natural effect
of such questioning , when conducted in a context in
which there is disclosure of unexplained employer pos-
session of knowledge about employees ' union activities,
is to leave the impression that the employer is engaged in
a campaign to ascertain the source and extent of union
support and, concomitantly , creates the impression that,
toward the end, the employer has been engaging in sur-
veillance of union activities of its employees See, e g.,
Arrow Automotive Industries, 256 NLRB 1027 (1981), affd
679 F.2d 875 (4th Cir 1982), A C. Miller Concrete Prod-
ucts Co, 246 NLRB 19 fn. 2 (1979)
Therefore, I conclude that, by his remarks to Martinez
on January 25, Jaramillo created the impression of sur-
veillance of employees' union activities and that Re-
spondent thereby violated Section 8(a)(1) of the Act.
C Interrogation
The second allegation , arising from Jaramillo's January
25 conversation with Martinez , is that Respondent un-
lawfully interrogated an employee in violation of Section
8(a)(1) of the Act As set forth above, during their con-
versation , Jaramillo asked whether Martinez had called
in the Union, asked why the Union' s representative had
spoken to Martinez before having spoken to other em-
ployees, and asked if Martinez had signed an authoriza-
tion card Clearly, these questions constitute interroga-
tion for, in asking them , Jaramillo "was attempting to
elicit information regarding the union activities or sym-
pathies of [Martinez ] and/or his fellow employees." Na-
tional Southwire Aluminum , 247 NLRB 1315 (1980).
However, the fact that it is established that an employer
has asked questions of or has attempted to elicit informa-
tion from employees does not terminate analysis.
Interrogation is not a per se violation of the Act. See,
e g., General Motors Corp v NLRB, 596 F.2d 1295, 1309
(5th Cir. 1979); Sioux Products v. NLRB, 648 F.2d 1251,
1256 (7th Cir 1982) Nevertheless, "[ i]nterrogation of
employees about union activities is inherently sus-
pect . " NLRB v. Fort Vancouver Plywood Co, 604
F 2d 596, fn 1 (9th Cir 1979). For, " interrogation by an
employer may be a very subtle weapon for interferring
with employee rights " Ridgewood Mfg. Co. v. NLRB,
410 F.2d 738, 740 (5th Cir. 1969), cert. denied 396 U.S.
832. "Any interrogation by the employer relating to
union matters presents an ever present danger of coerc-
ing employees in violation of their Section 7 rights."
1143
Texas Industries, v. NLRB, 336 F.2d 128, 133 (5th Cir.
1964). "Interrogation by supervisory employees as to
union sympathies carries with it at least the aroma of co-
ercion ." Joy Silk Mills v. NLRB, 185 F 2d 732, 740 (D.C.
Cir. 1950), cert. denied 341 U S 914
Interrogation poses a danger to employees rights guar-
anteed by Section 7 of the Act in three respects . First,
when it occurs , interrogation gives rise to a danger that
it naturally will be followed by the commission of addi-
tional , more pernicious , unfair labor practices by the in-
terrogating employer . That is, the information obtained
as a result of the interrogation could be "potentially
harmful to the employees in terms of possible Company
retaliation " TR W- United Greenfield Division v NLRB,
637 F.2d 410, 417 (5th Cir. 1981). "The cases in which
interrogated employees have been discharged or other-
wise discriminated against on the basis of information ob-
tained through interrogation are numerous ." Standard-
Coosa-Thatcher Co., 85 NLRB 1358, 1362 (1949).
Second, even if the interrogating employer actually
does not retaliate against employees, by committing
unfair labor practices against union supporters whose
identities are disclosed in the course of the interrogation,
there is no way that the interrogated employees can
know that they will not become the targets of subsequent
unlawful conduct, at least not absent express assurances
to them by their employer For "interrogation about
union sympathy and affiliation has been held to violate
the Act because of its natural tendency to instill in the
minds of employees fear of discrimination on the basis of
the information the employer has obtained " NLRB v.
West Coast Casket Co., 205 F.2d 902, 904 (9th Cir 1953).
Interrogated employees are left "to conjure up various
images of employer retaliation ," Dubin -Haskell Lining
Corp. v. NLRB, 375 F 2d 568, 571 (4th Cir 1967), cert.
denied 393 U.S. 824, based on the fear "that the employ-
er's economic power and superior position may be used
to the disadvantage of the individual employees disclosed
to be members of or active in the union " Foote Bros.
Gear Corp, 14 NLRB 1045, 1054-1055 (1939) Accord:
Indianapolis Power Co., 25 NLRB 193, 205 (1940), enfd.
as modified on other grounds 122 F 2d 757, 760 (7th Cir.
1941), cert denied 315 U S 804
Finally, wholly apart from actual acts or potential fear
of retaliation arising from interrogation and the informa-
tion disclosed by it, "[w]hen an employer inquires into
organizational activity . . . he invades the privacy in
which employees are entitled to exercise the rights given
them by the Act " NLRB v. Harry F. Berggren & Sons,
406 F 2d 239, 244-245 (8th Cir 1969), cert. denied 396
U.S 823 "Inherent in the very nature of the rights pro-
tected by Section 7 is the concomitant right of privacy in
their enjoyment-' full freedom ' from employer intermed-
dling, intrusion , or even knowledge . . . The employer
may not legally seek information on those subjects which
the statute makes the sole concern of his employees "
Standard-Coosa- Thatcher Co., supra, 85 NLRB at 1360-
1361 Accord. Quemetco, Inc., 223 NLRB 470 (1976)
Consequently, although interrogation is not a per se
violation of the Act because of its potential adverse ef-
fects on the exercise of Section 7 rights by employees-
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through the danger that it will lead to employer retalia-
tion, through its natural tendency to instill employee fear
of discrimination if protected activity continues to be
pursued, and through its invasion of employee privacy in
exercising statutory rights-interrogation is held to be
coercive, and thus unlawful, not only when it is accom-
panied by express threats or promises, but also when
"either the words themselves or the context in which
they are used . . . suggest an element of coercion or in-
terference." Midwest Stock Exchange v. NLRB, 635 F.2d
1255, 1267 (7th Cir. 1980). That is, "the test is whether,
under all the circumstances, the interrogation reasonably
tends to restrain or interfere with the employees in the
exercise of their protected rights." Penasquitos Village v.
NLRB, 565 F.2d 1074, 1080 (9th Cir 1977). Accord:
Hedstrom Co. Y. NLRB, 629 F.2d 305, 314 (3d Cir. 1980).
To make that determination-whether or not interro-
gation has been coercive-the Board and the Fifth Cir-
cuit Court of Appeals look to certain criteria:
(1) the history of the employer's attitude toward its
employees; (2) the type of information sought or re-
lated; (3) the company rank of the questioner; (4)
the place and manner of the conversation; (5) the
truthfulness of the employee's responses; (6) wheth-
er the employer had a valid purpose in obtaining
the information; (7) if so, whether this purpose was
communicated to the employee, and (8) whether the
employer assures employees that no reprisals will be
taken if they support the union.
NLRB v. Aero Corp., 581 F.2d 511, 514 (5th Cir. 1978).
Applying these criteria to the facts of the instant case,
it is evident that certain ones do tend to point to a con-
clusion that Jaramillo's questioning of Martinez had not
been coercive. Thus, there is no evidence that Respond-
ent, in general, or Jaramillo, in particular, had engaged
in any previous conduct that could be said to evidence a
hostile attitude toward unionization of Respondent's em-
ployees. Moreover, there is no evidence that Jaramillo-
the warehouse manager-occupied a high rank in Re-
spondent's chain of supervision. Third, the questioning
had occurred at a point in the conversation immediately
after Jaramillo and Martinez had been discussing a per-
sonal matter and, to that extent, there is at least a basis
for concluding that the questioning had been but an ex-
tension of a casual exchange of remarks between them.
Finally, Martinez did answer truthfully to Jaramillo's
question concerning whether the former had signed an
authorization card. However, a greater number of the
criteria, when applied to the questioning that occurred
during the January 25 conversation, tend to demonstrate
that Jaramillo's interrogation had "a tendency to intimi-
date employees in the exercise of their protected rights
. . . " NLRB v. Anchorage Times Publishing Co., 637
F.2d 1359, 1364 (9th Cir. 1981).
In the first place, viewed from the perspective of the
above-enumerated three respects in which interrogation
poses a danger to employee rights guaranteed by Section
7 of the Act, Jaramillo's questions concerning whether
Martinez, in effect, had contacted the Union and had
signed an authorization card "is the type of information
`most useful for purposes of discrimination."' NLRB v.
Gogin Trucking, 575 F.2d 596, 600 (7th Cir. 1978), quot-
ing from, NLRB v. Milco, Inc, 388 F.2d 133, 137 (2d Cir.
1968). Moreover, there is no evidence showing that there
had been a valid purpose for Jaramillo to have put those
questions to Martinez. That is, inasmuch as there is no
showing that the Union had asserted majority status to
Respondent prior to the conversation between Jaramillo
and Martinez, there is no basis for concluding that Re-
spondent had been attempting to verify an assertion of
majority support by a labor organization. Nor, though
Martinez ' conversation with Frazer had occurred outside
the pickup area on Respondent's premises as Martinez
and Munoz had been returning from a delivery, is there
evidence that there had been any misconduct or work
rules violation in connection with Frazer's conversation
with the two employees. Cf. Padre Dodge, 205 NLRB
252, 253 fn. 3 (1973); Intercontinental Mfg. Co., 201
NLRB 694, 696 fn. 3 (1973). Finally, during the very
conversation in which Jaramillo had asked these ques-
tions , he had demonstrated a willingness to violate the
Act in other respects by, as concluded above, unlawfully
creating the impression of surveillance of employees'
union activities.
In view of the nature of the questions asked by Jara-
millo, the absence of any evidence supplying a valid
reason for having asked them and the commission of an-
other unfair labor practice during that same conversa-
tion, it follows that his interrogation had been of the
type that would be "potentially harmful to the employ-
ees in terms of possible Company retaliation. . . .
TRW-United Greenfield Division v. NLRB, supra. Of
course, viewed from the perspective of 6-1/2 months
later, there is no evidence, nor contention, that Respond-
ent actually did retaliate against any of its employees for
having supported the Union. To the contrary, though
Martinez was laid off or terminated on February 5, the
General Counsel did not proceed to complaint regarding
that portion of the charge alleging that his layoff or ter-
mination had been unlawfully motivated. Yet, the test for
violations of Section 8(a)(1) of the Act is an objective
one. See , e.g., NLRB v. Triangle Publications, 500 F.2d
597, 598 (3d Cir. 1974). That is, whether or not such a
violation has been committed is not dependent on the
employer's motivation. American Lumber Sales, 229
NLRB 414, 416 (1977). The Board's experience shows
that instances of interrogation followed by more serious
unfair labor practices "are numerous." Standard-Coosa-
Thatcher Co, supra. Consequently, it cannot be main-
tained persuasively that simply because a particular em-
ployer, for whatever unexplained reason , later chooses
not to engage in discrimination after having conducted
interrogation of an employee, it follows that the potential
for doing so is somehow diminished.
However, even if it could be said that Respondent's
questioning of Martinez did not pose an actual danger of
likely later discrimination against union supporters be-
cause there is no evidence that Respondent later did so,
clearly it cannot be said that Jaramillo's interrogation did
not instill a fear of discrimination in Martinez ' mind and
would not ordinarily have done so in the mind of an em-
GEMCO
ployee, viewed from an objective perspective. Martinez
was not interrogated at his workplace, but rather the
questioning occurred in Jaramillo's office. Although the
comments immediately preceding the questioning had
pertained to personal matters, Martinez had been paged
to report to the office for a meeting, the fundamental
purpose of which, as disclosed by what had occurred
once Martinez had arrived there, had been to issue three
warning notices to Martinez for deficiencies in his per-
formance. Accordingly, viewing the meeting from the
standpoint of its principal purpose-as it must be-it
hardly can be said that the questioning had occurred in a
casual and informal overall context, unrelated totally to
Martinez' work record and employment status. Indeed,
though Jaramillo may not have occupied one of the
highest positions in Respondent's supervisory hierarchy,
his ability to issue warning notices to employees served
to demonstrate graphically his power to exert at least a
degree of influence on employees' work records.
In this area of concern, that a fear of retaliation will
arise naturally from interrogation, it is significant that
even though the information sought by Jaramillo per-
tained to the source and extent of employee support for
the Union, "the purpose of [Jaramillo's] interrogation
was not explained [to Martinez] and no assurances
against retaliation were given." NLRB v. Va% Inc., 425
F.2d 293, 298 (5th Cir 1970). See also NLRB v. Los An-
geles New Hospital, 640 F.2d 1017, 1019-1020 (9th Cir.
1981). To the contrary, Jaramillo "said nothing to dimin-
ish the apprehension [his] remarks might have caused
. . " (Citation omitted.) Eastern Maine Medical Center
v. NLRB, 658 F.2d 1, 7 (1st Cir. 1981). Accord: NLRB Y.
Bighorn Beverage, 614 F.2d 1238, 1241-1242 (9th Cir.
1980).
That Martinez, in fact, did become apprehensive about
Jaramillo's questioning is demonstrated by two aspects of
his answers to it. First, although he had been the unit
employee who had telephoned Frazer, when questioned
initially about whether he had called in the Union and,
further, why he had been the employee to whom Frazer
had spoken first, Martinez denied having been the em-
ployee who had contacted the Union and made up an ex-
planation for having been approached by Frazer first.
The fact that he was not truthful initially when answer-
ing Jaramillo's questions is an indicia of the apprehen-
siveness caused him by them Second, when asked only if
he, personally, had signed an authorization card, Marti-
nez immediately volunteered that all the other employ-
ees, except for the receiver, whom Frazer had been
unable to locate, had done so as well. In so doing, Marti-
nez attempted to create the appearance that his conduct
had not been unique and, in effect, attempted to preclude
the possibility that Jaramillo would single him out for re-
taliation based on the absence of any information that
other employees had signed cards too.
In sum, that Jaramillo's questioning had occurred in a
conversation in the office during which warning notices
had been issued to Martinez, that Jaramillo had obvious
authority to affect Martinez' employment record to the
extent of being able to issue warning notices, that Jara-
millo failed to explain the purpose of the questioning and
did not assure Martinez that it would not lead to repris-
1145
als nor otherwise attempt to diminish Martinez' likely ap-
prehension, and that Martinez denied having been the
unit employee who had contacted the Union and at-
tempted to align his conduct with that of most of the
other unit employees, by disclosing that almost all of
them had signed authorization cards, are criteria tending
to show that Jaramillo's interrogation had been coercive
by virtue of its natural tendency to instill a fear of dis-
crimination in the mind of an interrogated employee.
The final area of concern regarding questioning on the
exercise of rights guaranteed by Section 7 of the Act
pertains to the right of "privacy in which employees are
entitled to exercise the rights given them by the Act."
NLRB v. Harry F. Berggren & Sons, supra As discussed
above, the nature of the questions asked by Jaramillo
were of a type that seeks information useful for discrimi-
nation and, further, that would "would enable manage-
ment to inform itself as to the progress being made in
campaigning for a then-unrepresented union [sic]."
NLRB v. Essex Wire Co., 245 F 2d 589, 592 (9th Cir.
1957). Employers do not enjoy a general right to such
information and Respondent has made no showing that,
in the circumstances, it had a valid purpose for seeking
it, such that it could be said that its employees' right to
privacy must yield to a higher statutory policy consider-
ation. In these circumstances, Jaramillo's questioning
constituted an invasion of the privacy to which its em-
ployees were entitled in exercising rights guaranteed by
the Act.
In connection with Jaramillo's questioning of Marti-
nez, three other points are worthy of note First, at the
time that it had occurred, the bargaining unit had con-
sisted of but four employees: the receiver and three war-
ehousemen. Accordingly, the size of the group was not
large . Derby Refining Co v. NLRB, 102 LRRM 2121
(10th Cir. 1979). Second, the interrogation occurred on
the day immediately after signatures on authorization
cards had been solicited from Respondent's employees.
Consequently, it took place at a stage in the organizing
campaign when employees would be most sensitive to
disclosure of their sympathies to Respondent See B.
Karsh, Diary of a Strike, 21-27, 106, 109 (U. of Ill. 1958);
see also NLRB v. Amber Delivery Service, 651 F.2d 57,
67-68 (1st Cir. 1981). Finally, Jaramillo did not confine
his questioning to but a single inquiry, but sought to as-
certain if Martinez had been the instigator of the Union's
interest in Respondent's employees and, then, to ascer-
tain if Martinez had supported it by signing an authoriza-
tion card. Cf. Dow Chemical Co. v. NLRB, 660 F.2d 637,
6751 (5th Cir. 1981).
In the circumstances set forth above, a preponderance
of the evidence supports the conclusions that Jaramillo's
interrogation of Martinez had been of a type that gives
rise to the danger of commission of subsequent unfair
labor practices, that it had a natural tendency to instill
fear of retaliation in the minds of employees, and that it
invaded the privacy to which employees are entitled in
engaging in activity protected by Section 7 of the Act.
Therefore, it was coercive and a violation of Section
8(a)(1) of the Act.
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Relationship Between Martinez and Jaramillo
As set forth above, Respondent argues that no viola-
tion should be found here because, in essence, there was
a social or friendly relationship betweeen Martinez and
Jaramillo. In the final analysis, this contention finds its
origin in the fact that Munoz and Jaramillo had been
roommates during January and February. It is undis-
puted that on approximately three occasions, twice
during January and once after Martinez' layoff or termi-
nation, Martinez had come to their home to socialize. On
the first occasion, the three men simply sat around talk-
ing. On the second, they also drove around for a bit. On
the third occasion, Martinez and Munzo already were
there when Jaramillo arrived home and the latter tagged
along to watch the other two play racquetball for 3 to 4
hours. Based on these three incidents, Respondent argues
that the relationship between Martinez and Jaramillo had
been so close that the latter's remarks to the former on
January 25 would not have been coercive
Three points serve to render this defense mentless.
First, the Board and the Circuit Courts of Appeals have
agreed that the mere existence of a social or personal re-
lationship between a supervisor and an employee of itself
does not automatically serve to nullify the coercive
effect of otherwise unlawful remarks. That is, "social re-
lationships in themselves are not a sufficient basis to lift
acts of illegal interference from the scope of the Compa-
ny's responsibility." NLRB Y. Big Three Industrial Gas
Co., 579 F.2d 304, 311 (5th Cir. 1978), cert denied 440
U.S. 960. Accord: Seligman Associates v. NLRB, 639 F.2d
307, 309 (6th Cir. 1981). "The existence of friendship be-
tween a manager and an employee is only one factor to
be considered in determining whether the manager's
questions , are coercive." NLRB v. Delchamps, Inc., 653
F.2d 225, 227-228 (5th Cir 1981) "Interrogation is no
less coercive merely because it comes from a friend."
Isaacson-Carrico Mfg. Co., 200 NLRB 788 (1972).
Second, whatever Jaramillo's social relationship may
have been with Martinez, a preponderance of the evi-
dence supports the conclusion that on January 29 Jara-
millo "did not question [Martinez] in a friendly and in-
formal manner." NLRB v. Delchamps, 653 F.2d at 228.
As set forth above, Martinez had been paged to come to
the office to participate in a conversation the principal
purpose of which had been to issue warning notices to
Martinez. Thus, viewed in its entirety, the discussion had
been a business-oriented, rather than social, one. During
it, Jaramillo had demonstrated his ability, at least to a
limited degree, to "wield economic power over [Marti-
nez]," Quementco, Inc., 223 NLRB 470 (1976), by includ-
ing warning notices to Martinez' employment record.
Morover, also as found above, during this conversation,
Jaramillo neither assured Martinez that there would be
no reprisals nor said anything else that would have
served to diminish apprehension that naturally would
have ansen as a result of Jaramillo's remarks. Indeed, the
nature of Martinez' answers, as discussed above, dis-
closes that he had become apprehensive as a result of
Jaramillo's comments and, accordingly, there is no basis
for concluding that Martinez had regarded the conversa-
tion as no more than a casual and informal one.
Finally, the fact that Martinez had visited the home in
which Jaramillo lived prior to January 25 hardly estab-
lished a close personal relationship between them in the
circumstances of this case. For Tony Munzo also lived
there and Jaramillo conceded that Munzo, "hung around
a lot with Richard [Martinez]." Conversely, there is no
evidence, and Jaramillo did not claim, that he had en-
joyed any social relationship or contact with Martinez
beyond that occurring during the three visits to Jaramillo
and Munzo's home. Consequently, although Jaramillo
claimed that he "couldn't honestly answer" whether the
visits by Martinez had been occasioned by the latter's
desire to see Munzo, rather than Jaramillo, it is a fair in-
ference that Martinez had come to see Munzo, not Jara-
millo and, as had been the case during the post-February
5 visit, that Jaramillo had been included in their activities
only because he had happened to be present.
E. The Isolated or De Minimis Doctrine
As noted above, an issue also exists in this case and,
perhaps in the final analysis it is the principal one, re-
garding the propriety of issuing a remedial order in light
of the following factors. So far as the record discloses,
Jaramillo's conversation with Martinez on January 25
had been the only occasion on which Respondent had
violated the Act by committing an unfair labor practice.
Martinez testified that he had not told anyone, save for
the Board agent investigating the charge in this matter,
what had been said to him by Jaramillo and, according-
ly, the unfair labor practices committed during that con-
versation were confined to Martinez and did not come to
the attention of Respondent's other employees. Martinez,
having been laid off or terminated in February, is no
longer employed by Respondent and there is no evidence
showing that he likely might be reemployed by it. Fur-
ther, a representation election was conducted among Re-
spondent's employees on March 31 and there is no evi-
dence of any interference with that election by Respond-
ent. In these circumstances, it is logical to question
whether insurance of a remedial order promotes the poli-
cies of the Act in light of the seemingly isolated and/or
de minimis effect of the violation committed by Re-
spondent.
Over the course of the Act's history, the concepts of
isolatedness and de minimis have endured a checkered
career. So far as I can ascertain, these concepts were
first introduced into the Act's admininstration by the
Board in 1954.8 At that time, in applying the isolated
doctrine, the Board simply reached a conclusion, without
either formulating criteria for its application or, in light
of subsequent developments perhaps more importantly,
without explaining the relationship of that doctrine to
the provisions of the Act Thus, in Braswell Motor Freight
Line, 107 NLRB 761 (1954), the Board stated that "the
isolated nature of the remarks does not warrant the issu-
ance of a cease-and-desist order," supra at 765. Similarly,
8 Previously , the maxim de minims non curat lex had ansen but in the
context of whether or not commerce was affected in particular cases to a
degree sufficient to warrant assertion of jurisdiction by the Board in
those situations See NLRB v Denver Building Trades Council, 341 U S
675, 683-685 (1951)
GEMCO
in Frohman Mfg. Co., 107 NLRB 1308 at 1315 (1954), the
Board was satisfied to dismiss an alleged veiled threat of
reprisal on the ground that "because of the isolated
nature of these remarks, it would not serve any useful
purposes to issue a cease-and-desist order based thereon."
Over the course of succeeding years, the Board con-
tinued to conclude that violations were isolated but, for
the most part, did not supply further explication of its
basis for doing so. See, e.g., P & V Atlas Industrial
Center, 112 NLRB 1175, 1180 (1955); Great Atlantic &
Pacific Tea Co, 129 NLRB 757, 760 (1960) However, on
occasion it did provide some explanation of the factors
on which it was relying in reaching that result. For ex-
ample, in Teamsters (Ready-Mixed Concrete), 117 NLRB
1266 (1957), in concluding that an order based on threats
by a picket "would [not] effectuate the policies of the
Act," the Board noted that no other striker had engaged
in similar conduct during the course of a strike lasting
for 3 months and that one of the offending picket's
threats had been ambiguous while another had been
made after he had ceased picketing. In America Gilsonite
Co., 122 NLRB 1006, 1007 fn. 6 (1959), when aptitude
tests had been instituted unilaterally, the Board support-
ed its conclusion of isolatedness by stating that "after the
Union had protested about the aptitude tests, the Re-
spondent consulted with the Union concerning its griev-
ances about this matter and entered into an arrangement
concerning the tests satisfactory to the Union." Finally,
in Ladies Garment Workers (Twin-Kee), 130 NLRB 614
(1961), the Board held certain remarks too isolated to
warrant issuance of a remedial order because they had
been the only unlawful ones made during a strike lasting
over 2 months, they had been limited to two employees,
and there had been no evidence of other unlawful activi-
ty. Although these cases provided neither criteria for
measuring applicability of the isolated or de minimis doc-
trine, nor any explanation of the doctrine's relationship
to the provisions of the Act, they would have tended to
warrant dismissal of the instant complaint had the law
not evolved further.
But, it did evolve further. Section 10(c) of the Act
provides that when the Board concludes that an unfair
labor practice has been committed, "then the Board . .
shall issue and cause to be served on such person an
order requiring such person to cease and desist from
such unfair labor practices and to take such affirmative
action including reinstatement of employees with or
without backpay, as will effectuate the policies of this
Act . . " With reference to that portion of Section
10(c) of the Act, the Court of Appeals for the District of
Columbia Circuit pointed to the word "shall" and held
"that that meaning, in terms of Congressional purposes is
unmistakable" and, accordingly, that when a violation of
the Act is found to have been committed, a cease-and-
desist order must be issued. Woodworkers Local 3-10 Y.
NLRB, 380 F.2d 628, 630-631 (1967). Later, that same
view-that the Board lacked discretion to forgo issuance
of a cease-and-desist order when a violation of the Act
had been committed-was adopted by the Sixth Circuit
of Appeals in Auto Workers (UAW) v. NLRB, 427 F 2d,
1330, 1332-1334 (1970). Further, that position has come
to be the one adopted in more recent Board decisions.
1147
See, e.g., Regency at the Rodeway Inn, 255 NLRB 961
(1981); Genuine Parts Co., 265 NLRB 1663 (1982). Of
course, if this is a correct view, then no further discus-
sion need be devoted to the question of isolatedness and
remedial order must issue in the instant case
Yet, the fact is that this view-that the Act obliges the
Board to issue a cease-and-desist order whenever a viola-
tion of the Act is found-is not a universally shared one
Three circuit courts of appeals have declined to enforce
Board Orders on the basis on the isolatedness or de mini-
mis doctrine NLRB v. Brooks Cameras, 691 F 2d 912, 919
(9th Cir 1982); NLRB Y. Big Three Industrial Gas Co.,
441 F.2d 774, 778 (5th Cir. 1971); NLRB v. Intertherm,
596 F 2d 267 276-277 (8th Cir. 1979) Moreover, the
Board, itself, has concluded in some cases that unfair
labor practices were so insubstantial that issuance of a re-
medial order was not warranted. See, e.g., Musicians
Local 76 (Jimmy Wakely Show), 202 NLRB 620 (1973).
Consequently, it might be concluded that the view that
Section 10(c) of the Act mandates issuance of a cease-
and-desist order, whenever there is a finding that an
unfair labor practice has occurred, is not a unanimous
one. In point of fact, however, none of the foregoing de-
cisions really examined the requirements of Section 10(c)
of the Act in reaching their conclusion that no remedial
order was warranted.
Nevertheless, there is considerable room for doubt that
the above-quoted portion of Section 10(c) of the Act
does impose a duty to disregard every other consider-
ation and to automatically issue a cease-and-desist order
whenever it is concluded that an unfair labor practice
has occurred. For such an interpretation, in effect, bifur-
cates that subsection of the Act That is, the word
"shall" is held to apply to issuance of cease-and-desist
orders while the phrase "as will effectuate the policies of
this Act" is held to modify only the "affirmative action"
portion. See Eichleay Corp. v. NLRB, 206 F 2d 799 (3d
Cir. 1953). From that premise, it then is held to follow
that when an unfair labor practice has been committed,
neither the Board nor the circuit courts of appeals pos-
sesses any discretion to determine whether issuance of a
cease-and-desist order would promote the policies of the
Act, although they can make such determinations con-
cerning any "affirmative action" to be ordered. Wood-
workers Locals 3-10 Y. NLRB, supra; Auto Workers
(UA W) v. NLRB, supra. But, that interpretation is not
the only one that can be derived from the language of
Section 10(c) of the Act.
The remedial provision of Section 10(c) directs the
Board, once it concludes that an unfair labor practice has
been committed, to do one thing: issue an order. By way
of description or specification, that subsection then con-
tinues by delineating two facets of an order: one requir-
ing the respondent to cease and desist and the other
obliging it to take affirmative action. The subsection then
concludes with the modifier "as will effectuate the poli-
cies of this Act:" Nothing in the construction of this stat-
utory direction, viewed in its entirety, restricts the "as
will effectuate" portion to only the "affirmative action"
facet of the overall mandate. To the contrary, the fact
that there is a comma before and another after the "af-
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
firmative action" portion indicates no more than that
Congress intended to distinguish the affirmative aspect of
an order from the negative or "cease and desist " one as a
means of clarifying the distinction between the two of
them. This, of course, would leave the basic mandate un-
disturbed: that the Board "shall issue .. . an order .. .
as will effectuate the policies of this Act." Viewed from
this perspective, Congress' direction is that an order shall
issue when an unfair labor practice is found to have been
committed unless it will not effectuate the policies of the
Act to do so.
That such a construction of the remedial portion of
Section 10(c) of the Act is a correct one is supported by
two other considerations. First, there is no legislative his-
tory to support a construction that mandates automatic
issuance of a remedial order whenever, and in whatever
circumstances, it is concluded that an unfair labor prac-
tice has occurred. Second, there is a sound policy reason
for not adopting such an inflexible and ironclad construc-
tion of that subsection of the Act. As the District of Co-
lumbia Circuit, itself, complained in 1971, "It seems ele-
mentary to the very existence of our judicial machinery
that infinitesimally small abstract grievances must give
way to actual and existing legal problems if courts are to
dispose of their heavy calendars." Dallas Mailers Union
Local No. 143 v. NLRB, 445 F.2d 730, 733. Yet, if a
cease-and-desist order is required in each and every situ-
ation in which an unfair labor practice has been commit-
ted then it seems inevitable that courts will continue to
confront every "infinitestimally small abstract grievance"
that resspondents have committed, but refuse to comply
with orders directing them to cease committing.
In sum , the wording of the remedial provision of Sec-
tion 10(c) of the Act, the absence of any legislative histo-
ry indicating that Congress intended a cease-and-desist
order to issue automatically for every unfair labor prac-
tice committed, and the exigencies of judicial administra-
tion all point to the conclusion that the Board does pos-
sess power to decline to issue a remedial order on the
basis of the doctrine of isolatedness or de minimis. This,
then, leads to the need for development of criteria to be
applied in making determinations whether or not particu-
lar violations should be viewed as isolated or de minimis.
Clearly, formulation of criteria is essential inasmuch as
those who administer the operation of the Act, as well as
those whose actions are governed by its provisions, must
have some standards to follow in making their own de-
terminations regarding whether or not to dismiss, to
settle, or to litigate particular charges with which they
are confronted. To avoid formulating criteria to serve
that purpose will mean that the Board and the courts
must continue resolving, on a case-by-case basis, each sit-
uation in which the doctrine of isolatedness or de mini-
mis might be applicable because parties to those disputes
have no guidelines for attempting to do so themselves. In
this fashion, the burden of heavy calendars will continue
to persist.
Several criteria are suggested by the facts of the in-
stant case: Respondent's unfair labor practices were not
the most serious ones that could have been committed;
they occurred in a single conversation with a single em-
ployee, there is no evidence that they were repeated nor
that other types of unfair labor practices were committed
by Respondent; they were not committed by a high-
ranking official of Respondent; and there is no evidence
that they were committed pursuant to a plan by Re-
spondent to intimidate even a single employee in the ex-
ercise of statutory rights. Also, the unfair labor practices
that were committed were not made known to other em-
ployees and the employee involved in the conversation
left Respondent's employment shortly after it had oc-
curred, and an election subsequently was conducted
without, so far as the record discloses, any evidence of
interference with it by Respondent. On the surface, these
factors would tend to militate in favor of the conclusion
that the unfair labor practice committed had been isolat-
ed or de minimis . However, when analyzed more closely
and in light of certain other criteria, it becomes apparent
that a remedial order is warranted.
First, although they were not the most pernicious
unfair labor practices possible, Respondent's unfair labor
practices did invade statutory rights in significant re-
spects: they "invade[d] the privacy in which employees
are entitled to exercise the rights granted them by the
Act," NLRB v. Harry F. Berggren & Sons, supra; they
were of a type that naturally leads employees to fear
"economic coercion, retaliation, etc.," Hendrix Mfg. Co.
Inc. v. NLRB, supra and "discrimination on the basis of
the information the employer has obtained," NLRB v.
West Coast Casket Co ., supra ; and, they were of a type
that experience has shown all too often leads to the com-
mission of acts of retaliation against employees identified
as union supporters. Standard-Coosa-Thatcher Co., supra.
These adverse consequences on the free exercise of
rights guaranteed employees by the Act hardly are insig-
nificant and, accordingly, the conduct that gave rise to
them cannot fairly be characterized as having been in-
consequential. Therefore, Respondent's unfair labor prac-
tices, although not the most serious ones that could have
been committed, did invade statutory rights of employees
in a significant and serious respects.
Second, although only a single employee had been in-
volved in the January 25 conversation with Jaramillo
and although there is no evidence that Jaramillo, or any
other official of Respondent, had repeated the unfair
labor practices committed during that conversation with
other employees, "even a single victim of a small-scale
violation of the Act (which exceeds de mimimis) is enti-
tled to the Board's attention." St. Regis Paper Co., 192
NLRB 661, 662 (1971). Moreover, in point of fact, em-
ployees other than Martinez had been affected by the
unfair labor practices committed by Jaramillo on January
25. For, as a result of the information elicited in response
to Jaramillo's questioning of Martinez, Respondent con-
firmed Beregochea's report that all unit employees, save
Beregochea, had received and signed cards authorizing
the Union to act as their bargaining representative. Ac-
cordingly, there simply was no need for Respondent to
have pursued further questioning to corroborate Berego-
chea's report about the union sympathies and activities of
those employees. Therefore, although there had been but
a single conversation in which unfair labor practices had
been committed and although only a lone employee had
GEMCO
participated in that conversation, the effect of those
unfair labor practices extended to all other employees in
the bargaining unit.
The foregoing factor serves also to nullify any weight
that might otherwise be accorded to the fact that other
employees did not become aware of Martinez ' conversa-
tion with Jaramillo. As a result of his questioning, Jara-
millo became every bit as much aware of the union sym-
pathies and activities of Respondent 's employees as
would have resulted from direct surveillance of them
when they were engaging in that activity . It is settled
that employee knowledge is not a condition to conclud-
ing that surveillance is unlawful . NLRB v. Southwire Co.,
429 F.2d 1050, 1054 (5th Cir. 1970), cert. denied 401 U.S.
939. At this stage, the issue to be resolved is not whether
Respondent's conduct actually coerced employees other
than Martinez . Rather, it is whether Respondent 's unlaw-
ful conduct has been so confined in scope that it can be
concluded that it was isolated. When, as here, the effects
of unfair labor practices extend beyond their immediate
target and encompass the protected activity of every em-
ployee in the bargaining unit , even though they may not
be aware of that fact, there is scant basis for concluding
that the effects of those unfair labor practices are isolat-
ed.
Third, although Jaramillo is not a high-ranking official
of Respondent and there is no evidence that his remarks
to Martinez on January 25 had been made pursuant to a
plan by Respondent to intimidate employees , neither can
it be said that those unlawful comments had been casual
ones, uttered without design. True, they occurred imme-
diately after an exchange concerning a personal matter.
Nevertheless, they took place in the office, not at Marti-
nez' workplace. Further, they occurred in the overall
context of a meeting, to which Martinez had been paged,
conducted for the principal purpose of issuing three
warning notices to Martinez That Jaramillo possessed
authority , at least , to issue those warning notices to em-
ployees demonstrated that although he is not one of Re-
spondent's highest ranking officials and may not possess
the maximum number of powers that a supervisor could
exercise, he did possess sufficient authority to have an
effect on Martinez' record, Moreover, the methodical
series of remarks addressed to Martinez-ones that ulti-
mately led him to acknowledge his participation in a
conversation with Frazer and to admit having signed an
authorization card as well as to disclose that others had
done so-belie any contention that the conversation had
been nothing more than a casual interchange that is of no
consequence.
Finally, of perhaps the greatest significance, there is no
evidence that Respondent had either repudiated its un-
lawful conduct or that it has given its employees any as-
surance that it will not be repeated. In essence, Respond-
ent attempts to avoid these omissions by pointing to the
fact that it did not engage in any unfair labor practices
after January 25 and, further, by noting that there is no
evidence that it had interfered with the representation
election conducted on March 25. But, such an argu-
ment-one rooted essentially in inaction-suffers several
infirmities
1149
The fact that Respondent had committed no further
unfair labor practices within a 7-month period of those
that it did commit does not mean that it will be unwill-
ing to do so in the future given sufficient opportunity.
Just as "mere passage of time , of itself `does not gainsay
discriminatory intent . . "' American Petrofina Co. 247
NLRB 183, 190 (1980), quoting Butler-Johnson Corp., 237
NLRB 688, 690 ( 1978), neither does it gainsay a willing-
ness to engage in conduct that , although not discrimina-
tory, interferes with the statutory rights of employees
As noted above, there has been criticism of the impact of
seemingly minor violations on caseloads of the Board
and of the circuit courts of appeals. Yet, absent some af-
firmative recognition by a respondent that its past con-
duct is improper and some expression of willingness not
to repeat it, there is an ever-present danger that employ-
ees again will be subject to it and, indeed, may become
the target of more pernicious unlawful conduct. See
Standard-Coosa-Thatcher Co., supra. Further, repetition
of past unfair labor practices and commission of more se-
rious ones generates not only the very addition to case-
loads that the Board and courts seek to avoid, but, when
more pernicious unfair labor practices are committed,
confronts them with more involved and time-consuming
litigation than would have occurred had they addressed
and provided a remedial order for less substantial thresh-
old violations.
True, a representation election was conducted in
March without apparent incident. Although there is no
evidence regarding the results of that election, it cannot
be said with certainty that there will be no further op-
portunity for Respondent to engage in unfair labor prac-
tices. To the contrary, it is likely that opportunities to do
so will occur whether the Union did or did not prevail
in the election. If the Union did prevail, negotiations and
possibly grievance proceedings, will follow, providing
ample opportunity for Respondent to become at least cu-
rious concerning the degree of employee support for the
Union's positions and to repeat the January 25 conduct.
See Nissan Motor Corp., 263 NLRB 635 at 642, fn. 18
(1982) Of course, if the Union did not prevail in the
March election, then the unit employees remain unrepre-
sented, raising the possibility of future organizing campa-
ings that present an opportunity for the same type of
conduct, as engaged in by Jaramillo, to be repeated.
In this regard, the absence of a repudiation of Jaramil-
lo's unfair labor practices is of equal significance to the
absence of any assurances to its employees that Respond-
ent will not once more make them the target of unfair
labor practices For, absent repudiation of Jaramillo's re-
marks, there is no way of ensuring that Respondent, in
general, and Jaramillo, in particular, understand exactly
what conduct was improper and is to be avoided in the
future Inasmuch as intent is not an element of a viola-
tion of Section 8(a)(1) of the Act, American Lumber
Sales, supra 229 NLRB at 416 (1977), conduct that inter-
feres with employee rights can occur without there being
even a motive to do so. Nevertheless, the rights of em-
ployees are invaded as much when design is present as
when it is absent Consequently, without a repudiation,
either by Respondent on its own initiative or by implica-
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion from the posting of a Notice to Employees, it
cannot be said with any degree of certainty that Re-
spondent will not again commit the very types of viola-
tions as were committed on January 25. Similarly, the
employees whose rights have been invaded-even un-
knowingly-are entitled to be apprised of the types of
conduct from which they are protected and to be as-
sured that past occurrences of that conduct will not be
repeated.
In sum , to announce that the doctrine of isolatedness
or de minimis will be applied automatically whenever
there is but a single incident involving a less serious
unfair labor practice committed by a lower ranking su-
pervisor is effectively to announce that each respondent,
"like every dog, gets one bite . . New York v Cathe-
dral Academy, 434 U.S. 125, 130 (1977). That is, it tells
parties governed by the Act that, as here, each employer
is entitled to one coercive conversation conducted by a
lower-ranking supervisor with a single employee and, by
parallel reasoning, that each labor organization is entitled
to restrain or coerce a single employee, or to direct one
threat to engage in secondary picketing, or perhaps even
to picket a secondary employer on but a single occasion
from a brief period-to one free shot so long as its cali-
ber is not large. Clearly, nothing of the sort is intended
by the doctrine of isolatedness or de minimis, nor can it
be said that such an application of the doctrine would
"effectuate the policies of this Act . . ." For, it is long
settled that even a single unfair labor practice can war-
rant issuance of an order by the Board. May Department
Stores Co. v. NLRB, 326 U.S. 376, 389, fn. 10 (1946).
The crucial criteria in the instant case are the Re-
spondent's agent took the initiative to commit unfair
labor practices posing significant risks to its employees'
free exercise of statutory rights, that those unfair labor
practices affected all unit employees; that the opportuni-
ty for repetition is present; and that Respondent has nei-
ther acknowledged that it recognized that such conduct
is proscribed nor given assurances that such conduct will
not be repeated As a result, it cannot be said with any
assurance that-even though the unfair labor practices
committed were not the most serious ones that can be
committed, were all committed in a single conversation
when only one employee was present, were not commit-
ted by a high-ranking supervisor nor apparently pursuant
to a plan by Respondent to intimidate employees, and
were not repeated thereafter-Respondent's employees
have been put on notice that their ability to exercise stat-
utory rights freely may not be interfered with in that
manner and , further, that Respondent, if confronted with
another opportunity in the future, will not once more
engage in conduct of that nature. Therefore, I conclude
that a preponderance of the evidence will not support a
finding that no remedial order should issue because Re-
spondent's unfair labor practices were isolated or de min-
imis.
CONCLUSIONS OF LAW
I. Lucky Stores Inc. d/b/a Gemco is an employer
within the meaning of Section 2(2) of the Act, and is en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. General Teamsters and Food Processing Local 87,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America is a labor organi-
zation within the meaning of Section 2(5).of the Act.
3. By creating the impression of surveillance of em-
ployees' union activities and by interrogating employees
concerning their union sympathies and activities, the Re-
spondent has violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices , I shall recommend that it be or-
dered to cease and desist and that it take certain affirma-
tive action to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommended
ORDER
The Respondent, Lucky Stores Inc. d/b/a Gemco, Ba-
kersfield, California, its officers, agents , successors, and
assigns, shall
1. Cease and desist from
(a) Creating the impression of engaging in surveillance
of employees' activities on behalf of General Teamsters
and Food Processing Local 87, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, or on behalf of any other labor organiza-
tion, and interrogating employees concerning their sym-
pathies for and activities on bahalf of the above-named
or any other labor organization.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Bakersfield, California facility copies of
the attached notice marked "Appendix" 1 ° copies of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by its authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days
thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "