Mayfield Produce Co.

National Labor Relations Board - Board Decisions

Sep 13, 1988

290 N.L.R.B. 1083 (N.L.R.B. 1988)

MAYFIELD PRODUCE CO
Paul Mayfield d/b/a Mayfield Produce Co. and
Teamsters and Chauffeurs Local 525 , affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO.' Case 14-CA-18024
September 13, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 30, 1986, Administrative Law Judge
Robert T Wallace issued the attached decision
The Respondent filed exceptions and a supporting
brief
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 brief and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended
Order 4
i On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
a 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
3 We agree with the judge that a bargaining order to remedy the Re-
spondent 's misconduct is warranted under NLRB v Gissel Packing Co,
395 U S 575 (1969) The Respondent's unfair labor practice conduct in-
cluded telling employees that others would be discharged for union ac-
tivities , creating the impression of surveillance , coercive interrogations,
the promise and grant of benefits , and multiple threats of discharge, loss
of jobs , loss of overtime, change of operations, and plant closure The
seventy of these instances of misconduct is underscored by the Respond-
ent's unlawful discharge of eight union supporters The seriousness of the
misconduct is further underscored by the fact that the misconduct was in
large part committed by the owner and his sons in a family-run business
and that the misconduct was personally directed at over 25 percent of
the unit In addition , the Respondent's misconduct occurred for the most
part within days of the employees' commencing active solicitation for
Teamsters and Chauffeurs Local 525
The Respondent 's misconduct was swift, pervasi ie , and severe We are
convinced that the misconduct is the type that has lingering effects and
that is not readily dispelled by traditional remedies or time Accordingly,
we agree with the judge that an election would not reliably reflect genu-
ine uncoerced employee sentiment Kona 60 Minute Photo, 277 NLRB 867
(1985), Quality Aluminum Products, 278 NLRB 338 (1986), Reno Hilton,
282 NLRB 819 (1987)
4 The judge ordered the Respondent to cease and desist from granting
certain benefits to induce employees to reject union representation Noth-
ing in that Order or in our Decision and Order should be construed as
requiring the Respondent to vary or abandon those benefits
In accordance with our decision in New Horizons for the Retarded, 283
NLRB 1 173 (1987), interest on and after January 1, 1987 , shall be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts
accrued prior to January 1, 1987 (the effective date of the 1986 amend-
ment to 26 U S C § 6621 ), shall be computed in accordance with Florida
Steel Corp , 231 NLRB 651 (1977)
1083
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Paul May-
field d/b/a Mayfield Produce Co, Staunton, Illi-
nois, its officers, agents , successors, and assigns,
shall take the action set forth in the Order
Mary J Tobey, Esq, for the General Counsel
John J Murphy Jr, Esq and Henry W Sledz Jr, Esq
(Kovar, Nelson & Brittain), of Chicago, Illinois, for the
Respondent
Nancy M Watkins, Esq (Wiley, Craig, Armbruster & Wil-
burn), of St Louis, Missouri , for the Charging Party
DECISION
ROBERT T WALLACE, Administrative Law Judge On
a charge and an amended charge filed by the above-
named Umon on 27 June and 2 August 1985 , respective-
ly, a complaint was issued on 2 August 1985 , as amend-
ed, in which it is alleged that Respondent Paul Mayfield
d/b/a Mayfield Produce Co violated Section 8(aX3) and
(1) of the National Labor Relations Act by discharging
eight employees ' for supporting the Umon in an organiz-
ing drive It is also alleged that Respondent committed
numerous independent violations of Section 8(a)(1)
through coercive interrogations , unlawful surveillances,
threats, and promises of benefits,2 and a bargaining order
is sought
The case was tried before me on 16 through 20 Sep-
tember 1985 at St Louis , Missouri On the entire record,
including my observation of the demeanor of the wit-
nesses, and after due consideration of briefs filed by the
General Counsel and Respondent , I make the following
Findings of Fact and Determinations of Alleged
Violations of Section 8(a)(1)
Respondent is engaged in the nonretail sale and distri-
bution of fresh produce from two facilities located in Illi-
nois near Staunton During a representative 12-month
period ending 31 July 1985 ,3 it purchased and received
at those facilities products valued in excess of $50,000 di-
rectly from points outside the State of Illinois It admits,
and I find, that it is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act
Respondent Company is owned by Paul Mayfield and,
admittedly, he and his sons (Dave, Tim, Larry, and
Dennis) are supervisors within the meaning of Section
2(11) of the Act In that role they were aided by "lead-
men" Dave Ellis, Roger Leetham , and Ray Haynes who,
according to the Mayfields , regularly relayed their in-
i Robert Holland, Michael Johnson , Thomas Butler, Thomas Barnes,
Kenneth (Gene) Hay, Lester Hall, Richard Simberger, and Matthew Po-
tocki Jr
' The General Counsel requests permission to withdraw three of these
allegations (5m, n, and o), stating that no evidence was presented in sup-
port thereof This unopposed request is granted
8 All dates are in 1985 unless otherwise shown
290 NLRB No 137
1084 DECISIONS OF THE NATIONAL LABOR, RELATIONS BOARD
structions regarding company policies and work assign-
ments to other employees, evaluated the performance of
other employees, and were authorized to issue verbal
reprimands to other employees.
At all pertinent times Respondent had 51 employees
not including office clericals and Mayfield family mem-
bers. The 51 work as drivers, warehousemen, produce
sorters, and salad room employees. Their assignments,
however, are informal as they are frequently transferred
from one job to another. For' example, loaders and pal-
letmen often become drivers and/or assist drivers on
their routes, sorters regularly help load trucks, and all
employees from time to time are called on to assist the
sorters.
In mid-April leadman and loader Jeffrey Knezik re-
ported for work about 7 a.m. While they were awaiting
job assignments , Dave Mayfield came over to where
they were standing. He told them that "we" (i.e., the
Mayfields) were going to talk to the foremen4 because
"the union representative might be coming by"; and he
went on to say that "before we go union . .. [the May-
fields] were going to pay union wages." I find the latter
statement to be an unlawful promise of benefits to fore-
stall unionization.
On 19 May three drivers (Holland, Johnson, and Wil-
liam Rothe) met with Union Representative Charles
Bryson and discussed how to conduct an organizing
drive. At the end of the meeting Bryson urged them to
pursue the matter with an agent (Dale Stewart) of Local
525.6 Accompanied by a fourth driver (James Tiepel-
man) they met with Stewart on 23 June. After hearing
their complaints about low wages and lack of medical in-
surance and job security, he gave them further instruc-
tions on the mechanics of organizing; and he also passed
out a quantity of blank authorization cards. An active so-
licitation effort ensued, and by 26 June the Union had in
its possession 31 signed cards.
James Missey was hired as a driver by Respondent on
21 June. On the following morning he was on the load-
ing dock awaiting arrival of the driver he was to ride
with that day. He was standing next to Tim Mayfield
and leadman Ellis and heard the former tell the latter
that there would be a union at the Company only over
"their [the Mayfields] dead bodies," and he went on to
say that if necessary they would prevent unionization by
running the company with family members only. Those
statements constitute an unlawful threat to discharge or
lay off employees if they chose to be represented by a
union. They also are coercive in that they convey an im-
pression that Respondent would do anything, legal or
otherwise, to keep a union out. Sterling Sugars, 261
NLRB 472, 475 (1982).
On finishing his shift 24 June , Barnes was called into
the office, where Dave Mayfield asked if he had heard
anything about the Union. Receiving no response, May-
field told him that he had heard "through the grapevine"
that Barnes had participated in a discussion about the
* As used by the Mayfield 's the term "foremen" includes leadmen.
s About a week later driver Butler invited to his home a group of
dockmen and sorters (Barnes, Hay, Hall, Simburger , and John Wells) and
told them about the contact made by the drivers with the Union. There
followed a general discussion of the pros and cons of unionizations.
Union at his stepfather' s (Butler 's) house. Again Barnes
said nothing, whereupon Mayfield stated, "We heard
your dad is the main cause of this and its usually the new
truck drivers6 that try to start something . . . . All us
Mayfields have to do [to defeat the Union] is drop the
produce trucks, and the warehouse and everything, and
just sell . . . [tomatoes to] McDonalds. So tell . . .
[Butler] if he values his job, just to drop it." The inter-
view ended with Mayfield pointing out that another
produce company had gone out of business because of
unionization . I find the interview unlawful for several
reasons. Barnes was not an open union supporter and the
questioning was patently intimidating . Rossmore House,
269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restau-
rant Employees Local 11 Y. NLRB, 760 F.2d 1006 (9th
Cir. 1985). In addition, Mayfield's "grapevine" comment
created an impression that employees' union activities
were under surveillance. Further, his remarks entail pro-
scribed threats to change operations and to fire Butler to
defeat unionization.
On the next day, just as Butler got out of his truck
after finishing his route, leadman Ellis took him aside
and warned him that earlier in the day Dave Mayfield
said he was going to fire Butler for holding secret union
meetings at home. The statement is patently coercive in
that it conveys a threat to discharge an employee for en-
gaging in protected concerted action. It also creates an
impression of surveillance of activities on behalf of the
Union. In this connection I find that Ellis, although not
shown to be a supervisor within the meaning of Section
2(11) of the Act, nevertheless was an agent of Respond-
ent because he was regularly used as a conduit for relay-
ing instructions and policies of management and reason-
ably could be viewed by employees as speaking on Re-
spondent's behalf. Roskin Bros., 274 NLRB 413 (1985);
B-P Custom Building Products, 251 NLRB 1337, 1338
(1980). And that result is not affected by the circum-
stance that Ellis may have acted on his own initiative
and out of friendship for Butler.
Potocki was one of 12 employees who regularly
worked in the "tomato room" grading and crating toma-
toes by color (ripeness). By 26 June he had signed an au-
thorization card and had persuaded seven coworkers in
the tomato room to do so; and he had returned all the
cards to Johnson. That morning he was approached on
the job by Leadman Haynes who told him, "truck driv-
ers were being fired and . . . the company would fold
up before they allowed a union in ." Later in the day
Haynes came back and told him that one of the drivers
who had been fired was "your buddy Mike [Johnson],"
and he suggested that Potocki should "ask Mike what
the Union had got him now." To Potocki's inquiry about
why they were being fired, Haynes replied, "I don't
know what reasons were given, but it was for union ac-
tivities . . . for trying to get a union in." For reasons ex-
pressed above concerning Leadman Ellis, I find that
Haynes acted as an agent of Respondent in communicat-
ing unlawful threats of discharge and plant closure.
8 At this time Builer had been employed by Respondent for about 2-
1/2 months.
MAYFIELD PRODUCE CO 1085
By the end of the workday on 26 June, Respondent
had discharged all the alleged discnmmatees (except Po-
tocki) for asserted disparate reasons Dennis Mayfield
told Johnson that the insurance company "had lowered
the boom on us last night so you can 't drive anymore "
Tim Mayfield informed Holland "they" were going to
have to let him go on advice of their insurer because of a
traffic ticket he received in January, and also because he
was "unaccessible" when needed for driving a night
(mushroom) route Butler too was terminated by Tim
Mayfield because of an incident occurring about a month
before when he had damaged a fender by backing into a
pole Barnes and Hall both worked on "parts," i e , they
filled orders for less than full cases of produce They
were dismissed by Dave Mayfield who told them they
had failed to properly rotate produce He also mentioned
that Dennis Mayfield's 12-year-old son , Mark, had been
hired to replace Barnes Hay and Simberger worked on
the dock loading and unloading trucks Dave Mayfield
approached them separately but conveyed the same mes-
sage to each their services were no longer required be-
cause he was replacing them with relatives He added
"You know this is a family run business "
Driver Tiepelman returned to the plant late in the
afternoon on 26 June Larry and Dennis Mayfield were
standing nearby As Tiepelman passed by, Larry invited
him to say something about the Union , adding he heard
Tiepelnan was a "ring leader " When Tiepelman denied
having had anything to do with the Union , Larry stated,
"You're supposed to have that barbeque in Livingston
for a Union meeting " Tiepelman replied that his barbe-
que had a purely social purpose Larry then said that if
there were "anymore things brought up about [Tie-
pelman 's involvement with] the Union's," they were
going to let him go I find the interrogation to involve
coercion, communication of a threat, and creating an im-
pression of surveillance-all in violation of Section
8(a)(1) of the Act
On reporting to work at 8 am on 27 June, Potocki
was called into the office , where Larry Mayfield told
him he was being laid off Asked why, Larry explained
that three cases bearing Potocki's initials and containing
an unusually high ratio of bad tomatoes (15 to 20 out of
80 per case) had been discovered at a customer's facility
and that a contract had been lost because of it 7
Driver Rothe arrived at work that morning about 2
hours before Potocki As he entered the office to punch
in, Larry asked him if he had heard anything about a
union, adding "I know you are an old union man so I
figure you might know something " Rothe replied yes he
did know something and volunteered, "Tiepelman came
to my house last night and is pretty freaked out be-
cause he said you guys threatened to fire him as an
instigator of the Union " Larry responded , "Yeah, we
have to get this thing straightened out because we
can't have a union in here telling us what to do if it
persists we will end up dropping off a bunch of routes
and the family will just run the place from then on
[and] we might be better off that way (and]
make more money " Larry also inquired whether Rothe
(who had signed an authorization card and solicited
other employees to do so) had been approached by
anyone Rothe responded , "No " About 4 p in, having
completed his route , Rothe again went to the office
Dennis and Tim Mayfield were there Rothe replied that
he would just repeat what he had told Larry that morn-
ing that Tiepelman said he had been threatened with dis-
charge for acting as an instigator of the Union Tim re-
sponded "Yeah, Jim Tiepelman is a troublemaker "
Rothe replied "I don't know Jim all that well so I
couldn't really tell you one way or another " Dennis
then opined that he could not understand "these guys,"
why they wanted to picket the place, especially because
one of them (Holland) recently had been allowed to
work overtime so that he could pay for a motorcycle I
find the a in and p in inquiries both involve coercive in-
terrogation as to protected union activities In addition, I
find Larry Mayfield 's observation that routes would be
eliminated to be an implied threat to lay off or discharge
employees for engaging in protected concerted activities
On the morning of Friday, 28 June , Respondent re-
ceived a copy of a petition in which the Union asked the
Board to order a representation election at the plant At
6 p in that day, Respondent called a special meeting of
drivers Nearly all of a total of 19 drivers were present
Each was given a two-page typewritten "Drivers Guide"
which , in addition to a restatement of applicable stand-
ards of conduct and appearance, contained two new an-
nouncements (1) that in the future the company would
provide uniforms and caps at no cost to the dnvers,8 and
(2) that a bonus program had been established for them
Dennis Mayfield commented on both items , and with re-
spect to the latter he stated that under the bonus pro-
gram each driver could earn as much as $35 per week
Respondent's insurance broker David Alender (a son-in-
law of Paul Mayfield) also talked to the drivers He said
that if they were interested he would have an expert
come and, speak to them about a group medical/life in-
surance plan during the regular monthly drivers' meeting
on the following Monday , 1 July The drivers agreed,
and at the Monday meeting all opted to sign up for the
plan I find that the conferring of these new benefits,
timed just after Respondent received formal notification
that an election was in the offing and hard on the heels
of a series of unlawful interrogations and threats as well
as the discharge of eight known union supporters, was an
unlawful offer of benefits intended to induce employees
to reject the Union Compare NLRB v Exchange Parts
Co, 375 U S 405, 409 (1964), in which the Court stated,
"The danger inherent in well-timed increases in benefits
is the suggestion of a fist inside the velvet glove Em-
ployees are not likely to miss the inference that the
source of benefits not conferred is also the source from
which future benefits must follow and which may dry up
if it is not obliged " Here , the circumstance that at least
a Although Respondent had not deducted a $5 weekly uniform rental
fee from driver paychecks since payroll period ending 6 June, it was in
the process of changing suppliers and drivers had received no assurance
r At the trial Larry testified (Tr 659 ) that it was not until 5 July that that fees would not be resumed on 1 July, the effective date of a contract
the customer told hun the contract was to be terminated with a new supplier
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
two of the benefits had been under consideration
(Alender had obtained bids from several insurers during
a 3-month period beginning in December 1984; and the
Mayfields previously had "talked about" extending to
the drivers a bonus plan similar to one effectuated for
loaders in March or April) lacks significance because Re-
spondent failed to provide any indication concerning
why it chose this particular time to confer benefits. See
Litton Dental Products, 221 NLRB 700, 701 (1975).
On the evening of 30 June, Simberger and Barnes ap-
proached leadman Leetham in the driveway of his home.
Leetham said he did not want to talk, adding that he
would probably get fired if he was seen with them. On
being pressed by Sunburger about why "we" were fired,
Leetham was silent for a couple of seconds and then
said . "If you go messing with the Union that is it." As in
the case of Leadmen Ellis and Haynes, Leetham is
shown to have been vested with an appearance of speak-
ing authoritatively on behalf of management and, as al-
leged, I find his statement that employees were dis-
charged in retaliation for union activities to be binding
on Respondent and unlawful
Paul Mayfield addressed the dnvers at the meeting on
1 July. In his words:
I started out saying I hear or see that you . . . want
a union . To me it is legal and it is your choice . .
I said now boys you know that when you .. .
came to get your jobs we told you just how much
we would give you and you agreed with that . . . I
also told them now you know that this business is
very competitive . . . . If we will charge $.25 more
we won't have . . . [customers] and any added ex-
pense could cause us to lose business, lose custom-
ers. We wouldn't be able to sell things. If we can't
sell them, we can't put it on the truck, can't deliver
it, that would affect the . . . routes and also . . . [I
mentioned] that we had some routes that were mar-
ginal . We were trying to hang on to them and eco-
nomically it wouldn't help us if we had more ex-
pense.
Three employees (Rothe, Crainick, and Tiepelman) each
testified that Paul Mayfield was more explicit. They
claim , and I credit their accounts, that he told them that
overtime and routes probably would have to be cut if a
union came in . I find that comment unlawful. Although
an employer can make predictions about precise effects
resulting from unionization, he must go further and pro-
vide an adequate factual basis why such consequences
are probable and beyond his control. Engineered Control
Systems, 274 NLRB 1308 (1985); Bacchus Wine Coopera-
tive, 251 NLRB 1552, 1559 (1980). Here, there is no indi-
cation that employees were given anything more than
the rambling discourse quoted above; and, in that cir-
cumstance, I find Paul Mayfield's prediction is simply a
veiled threat to cut off overtime and to lay off employ-
ees if they chose the Union. Fred Lewis Carpets, 260
NLRB 843, 849 (1982); Virginia Apparel Corp., 264
NLRB 207, 210 (1982) The coercive nature of May-
field's speech is intensified when viewed in the context
of Respondent's threats of plant closure and discharge as
well as the actual discharges . Grove Valve & Regulator
Co., 262 NLRB 285 (1982)
Within a short time after 27 June, Respondent hired 16
new employees, not including the hire of 12-year old
Mark Mayfield. All 16 were on a part- time (2 or 3 days a
week) basis pursuant to a newly established policy.
When David Mayfield was asked at the trial why the
policy had been changed at that particular time , the fol-
lowing exchange occurred:
A. It works better.
Q. Why is that?
A. Experience proves it that it has.
Q. Why?
A. I don't know. They [part-time employees]
come in for shorter amounts of time. They are more
alert. They are more on time. They don't come in
drunk
That response, however, stands in sharp contrast to his
earlier testimony that newly hired part-time loaders
"come and go so fast I don't remember [their hire dates]
. . . They are part-time. They find other work." Also,
he explained that a part-time loader had worked only a
short time and was fired because "he came in drunk
three nights." Based on the record as a whole, I con-
clude that a more likely reason for the policy change
was Respondent's perception that part-time workers are
less apt to take a proprietary view of their jobs and join
unions.
Credibility Determinations
The violations of Section 8(a)(1) cited above are based
on testimony of employees that I find internally and mu-
tually consistent; and to have been rendered candidly
and without animosity. I also note that two of the em-
ployees (Rothe and Crainick) have continued in Re-
spondent's employ and the credibility of their adverse
testimony is enhanced by the fact that it was given at
considerable risk. Bohemia, Inc., 266 NLRB 761, 764 fn.
13 (1983); Shop-Rite Supermarket, 231 NLRB 500, 505 fn.
22 (1977). Also at risk was another witness (Missy) who
had been laid off on 30 July and had hopes of being re-
called. Two others (Knezik and Tiepelman) had volun-
tarily terminated their employment with Respondent and
so stand to gain nothing financially from their testimony
in this proceeding. As to the alleged discriminatees, their
testimony regarding 8(a)(1) violations (with one excep-
tion)9 relates solely to uncontroverted statements of
Leadmen Ellis, Haynes, and Leetham. Respondent of-
fered no explanation why those individuals failed to testi-
fy, and that circumstance warrants an inference that, if
called, their testimony would be corroborative. The same
conclusion applies to statements of Tim and David May-
field alleged to have been uttered in the presence of
Leetham and Ellis. Antenna Department West, 266 NLRB
9 I have accepted as true Barnes' testimony regarding his conversation
with David Mayfield on 24 June based on a favorable impression of his
credibility vis-a-vis that of David, coupled with the fact that the account
is consistent with a pattern of conduct on Respondent's part depicted in
the testimony of other witnesses
MAYFIELD PRODUCE CO 1087
909, 912 (1983), Castle Instant Maintenance/Maid, 256
NLRB 130, 135 (1981), American Chain Link Fence Co,
255 NLRB 692, 693 fn 4 (1981)
The Discharges
The testimony of the eight dischargees regarding the
reasons given them for their respective terminations is
substantially undisputed 10 Indeed , the Mayfields claim
that the decision to effect the discharges for those rea-
sons was a collective one and was arrived at wholly
apart from consideration of any protected activities en-
gaged in by those selected for separation In my view,
however, the evidence amply demonstrates that they
were fired precisely and solely because each had sup-
ported the Union In effect I find that the Mayfields'
claim is wholly pretextual Accordingly a detailed Wright
Line' 1 analysis is unnecessary
In reaching this conclusion I have in mind the close
proximity of the discharges to the onset of protected
union activities and the lack of any adequate exculpatory
explanation for the timing , credited testimony that Re-
spondent claimed "grapevine" knowledge of employee
activities in support of the Union, overt animus toward
union supporters manifested by repeated threats to fire
those employees who sided with the Union, and the spu-
nous nature of the reasons offered for the discharges
Concerning the latter , I note (1) that although Johnson,
Holland , and Butler were discharged allegedly for faulty
driving , Johnson's poor driving record had been com-
piled prior to his being hired and he had been assured by
Dennis Mayfield in mid-March that he could continue
driving provided he received no tickets for moving vio-
lations, a condition he had fulfilled Holland's alleged
dereliction involved a speeding ticket received 1 month
before he was rehired in February, and he had informed
Dennis Mayfield of the citation during his rehire inter-
view 12 Butler s accident was promptly reported by him
on the day it happened (6 June) and, on viewing the
damaged vehicle, Tim Mayfield told him not to worry
because the damage was too slight (under $500) to report
to the insurance company and he cautioned him not to
let it happen again , 13 (2) that in light of Dave Mayfield's
io Although certain Mayfield& testified to "other" reasons for terminat-
ing some of the employees, those reasons were not expressed at the time
of the discharges and I am not persuaded that they are anything other
than afterthoughts
11 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir
1981), cert denied 445 U S 989 (1982)
12 Another reason given to Holland for his discharge was his inaccessi-
bility when needed on short notice for a "mushroom" run into St Louis
during early morning hours He had operated that run about four times a
week during the month of May pursuant to his request for an extra (i e ,
overtime) assignment I credit his testimony that the run had been award-
ed another driver in early June , so I find that his asserted inaccessibility
had become a moot quest-on at least 3 weeks poor to his discharge
is Tim Mayfield states that he merely told Butler to fill out an accident
report, and he claims he made the decision to fire Butler on the spur of
the moment after reading a letter (undated) which Dennis Mayfield
placed on his desk on 26 June In the letter, lessor Ryder states that "if
[Butler] is involved in another occurrence resulting in property
damage, personal mjary or is guilty of other reckless or abusive handling
of a motor veh'cle , we may request he not be permitted to operate a
Ryder vehicle " I accept as more plausible , and therefore credit, Butler's
testimony about Tim's comments on 6 June as well as his claim that on
testimony that he walked through the parts department
two or three times a night to see how things were going
and conducted an after-hours inspection of that area
once a week, that he often complimented Hall and
Barnes for running "a very neat area, ' and that he put
into effect a $20-a-week bonus for them about 1 week
prior to 26 June-I find it more probable than not that
any rotten vegetables "discovered" in the parts depart-
ment on the night of 25 June and for which he fired
them on the following day were those the two employ-
ees had culled from incoming produce and set aside for
return to suppliers pursuant to established procedures, (3)
that on the day (27 June) following the discharge of
loaders Hay and Simburger , assertedly to replace them
with Mayfield relatives, Dave Mayfield hired three non-
family members-two as part-time loaders and the third
as a member of the pallet crew , a job interchangeable
with that of loader, and (4) that according to credited
testimony of Potocki , Larry Mayfield , on being pressed
tacitly, admitted that the real reason for his "layoff" was
not bad tomatoes but his dad's orders
Bargaining Umt/Majonty Status
As previously noted, Respondent's work force is com-
posed of 51 employees, including leadmen Ellis , Haynes,
and Leetham The 51 are full-time and regular part-tine
drivers and warehousemen, and included within the
latter category are a number of informal classifications
such as produce packers and sorters, salad makers, order
fillers, pallet crew, and workers who load and unload
trucks Employees are frequently transferred from one
job to another, and their wage rates range from $3 35 to
$5 an hour Regular part-time employees include high
school students and they share the same working condi-
tions and terms of employment as full-time employees
Although Respondent has two warehouses they are lo-
cated within 2 miles of each other Employees all clock
in and out at the same warehouse and they often work at
both facilities over the course of a day or week Labor
relations policy is centrally established by the Mayfields
and working conditions are virtually the same at both fa-
cilities In these circumstances , I conclude that the driv-
ers and warehousemen , exclusive of Mayfield family
members, constitute an appropriate unit for purposes of
collective bargaining 14
The evidence also shows that 29 employees in that
unit had signed authorization cards as of 26 June,15 and
I find all of these cards valid for the purpose of establish-
mg majority status of the Union on that date In reaching
that conclusion I have concluded that Respondent's spe-
cific challenges to seven of these cards lack merit for
reasons indicated below
26 June Tim said he had no other choice but to let him go because Ryder
said he could no longer drive their trucks
14 It was stipulated that office clerical employees are appropriately ex-
cluded from the unit
is The evidence also shows that two additional cards (neither of which
were offered in evidence by the General Counsel) were not signed by the
employees (Kenneth Hopper and Gary Mills) whose purported signatures
appeared there Johnson admitted signing Hopper 's dame but claimed
lack of knowledge regarding the false signature of Mills
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The cards of employees Donald (Leroy) and Becky
Cook were credibly authenticated by Holland. Respond-
ent does not contend that the signatures thereon are not
theirs, nor did it offer any evidence disputing Holland's
account. Instead it asserts, without any case citation,
"that any card whose authenticity depends even in part
upon the testimony of a proven forger and perjurer re-
mains unauthenticated." The statement has reference to
the fact that Johnson testified that he had been present
when the Cooks signed cards. The short answer here is
that in accepting those cards I have relied only on the
testimony of Holland and have not had to decide wheth-
er Johnson told the truth in this instance.
Employee John Schwartz testified that he signed a
card on 23 June and that on the following day he told
Johnson to tear it up. Assuming Schwartz did attempt to
revoke, that action was ineffective because it was taken
after commencement of Respondent's unfair labor prac-
tices, and there is a presumption that the requested revo-
cation was a result of the unlawful conduct. Warehouse
Groceries Management, 254 NLRB 252 (1981); Air Prod-
ucts & Chemicals, 263 NLRB 341, 352-353 (1982).
Indeed, any effort objectively to assess the degree to
which Schwartz or any other employee might have been
affected by those practices would be speculative at best
and, at worst, could result in rewarding wrongdoing.
Several employees (including Ron Phillips, Douglas
Missey, Raymond Plenske, and Phillip Lutes) claim they
signed cards in order to obtain an election. But subjec-
tive intent is not relevant where, as here, the language
on the cards18 is free of ambiguity. Signers plainly desig-
nate the Union as their collective-bargaining representa-
tive, and they authorize it to use the cards either for pur-
poses of recognition or for an election. Mere use of the
disjunctive does not create any ambiguity. Neither does
the highlighted caption stating that the card is not an ap-
plication for membership in the Union. On the contrary,
the caption makes clear to signers that they do not have
to join the Union in order to obtain collective-bargaining
representation or an election. Pedro's Restaurant, 246
NLRB 567, 579 (1979); WCAR, Inc., 203 NLRB 1235,
1246-1247 (1973). 17 In that regard, there is no basis for
an assumption that Respondent's employees were too un-
sophisticated to understand and be bound by what they
sign. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
Further, no signer claims to have been told to disregard
16 The cards contain the following language immediately above the
signature blank
I, the undersigned employee of authorize [the Union] to
represent me in collective bargaining
Then comes spaces for identification of signers followed by a promi-
nent (bold-face) notation
THIS IS NOT AN APPLICATION FOR MEMBERSHIP
This card is for use in support of the demand of Teamsters Local
Umon 525 for recognition or for an N L R B election
17 Although Respondent cites NLRB v Peterson Bros, 342 F 2d 221,
224 (5th Cir 1965), for the proposition that language identical to that on
the cards involved is ambiguous, the Board in Pedro's Restaurant and
WCAR, Inc, supra, appears to take a contrary view, and other circuit
courts expressly disagree with the pertinent portion of the Peterson case
See NLRB v C J Glasagow Co, 356 F 2d 476, 478 (7th Cir 1966), and
Auto Workers Y NLRB, 363 F 2d 702 (D C Cir 1966)
the language of the card or that the card would be used
solely to obtain an election; and the record is devoid of
my implication to that effect. Photo Drive Up, 267 NLRB
329, 363-364 (1983), Cumberland Shoe Corp., 144 NLRB
1268 (1963), enfd. 351 F.2d 917 (6th Cir. 1963).18
Bargaining Order
The unfair labor practices found to have been commit-
ted by Respondent, including the mass discharge of eight
union supporters shortly after commencement of an or-
ganizational drive-an action accompanied by prior and
subsequent threats of loss of jobs, unlawful interroga-
tions, statements creating impressions of surveillance, and
promises (indeed implementations) of increased bene-
fits-are so serious and pervasive that the possibility of
erasing their coercive effect and of conducting a fair
election by use of traditional remedies is virtually non-
existent. I am aware of no significant mitigating circum-
stances On the contrary, the effects of Respondent's acts
are magnified because they took place in a relatively
small family run business and were perpetrated by the
owner and his sons. Thriftway Supermarket, 276 NLRB
1450 (1985); J. Coty Messenger Service, 272 NLRB 268
(1984). Accordingly, I conclude that entry of a bargain-
ing order is appropriate and necessary in this case.
CONCLUSIONS OF LAW
I find that Respondent violated Section 8(a)(3) and (1)
of the Act in the particulars and for the reasons stated
above, and that it is not shown to have violated that Act
in any other respect. I further find that those unfair labor
practices and each of them have affected, are affecting,
and unless permanently enjoined will continue to affect
commerce within the meaning of Section 2(6) and (7) of
the Act. And I further find that the following employees
of Respondent (the unit) constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time drivers and
warehousemen including produce packers and sort-
ers, order fillers, loaders, laborers, receiving and
storage and salad room workers, employed by Re-
spondent at its facilities in or near Staunton, Illinois,
excluding office clerical and professional employees,
guards, and supervisors as defined in the Act.
That on or about 26 June 1985, a majority of employees
in the unit designated and selected the Union as their
representative for purposes of collective bargaining; that
since that time the Union, by virtue of Section 9(a) of
the Act, has been, and is, the exclusive representative of
the unit for purposes of collective bargaining regarding
wages, hours, and other terms and conditions of employ-
ment; that the unfair labor practices found to have been
committed here are so serious and substantial in charac-
ter that the possibility of erasing their effects and of con-
18 Although Respondent does not mention the matter in its brief,
Barnes ' statement that he did not read the card before signing does not
invalidate it as evidence of support for the Umon Sertafilm, 267 NLRB
682, 692 (1983)
MAYFIELD PRODUCE CO 1089
ducting a fair election by the use of traditional remedies
is slight, and the employees ' sentiments regarding repre-
sentation, having been expressed through authorization
cards, would , on balance, be protected better by issuance
of a bargaining order than by recourse to traditional
remedies
REMEDY
In addition to the customary cease-and-desist order
and requirement for notice posting , my Order will re-
quire Respondent (1) to offer unconditional reinstatement
to Robert Holland , Michael Johnson, Thomas Butler,
Thomas Barnes, Kenneth (Gene) Hay, Lester Hall, Rich-
ard Simburger, and Matthew Potocki Jr, (2) to make
them whole for all wages and benefits lost as a result of
their unlawful discharge , in accordance with the princi-
ples set forth in F W Woolworth Co, 90 NLRB 289
(1950), and Florida Steel Corp, 231 NLRB 651 (1977),
see generally Isis Plumbing Co, 138 NLRB 716 (1962),
and (3) to recognize and, on request , bargain with the
Union as the exclusive representative of the employees in
the unit in regard to terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement
I conclude that the scope and seventy of Respondent's
unfair labor practices evince a general disregard for the
employees' fundamental statutory rights and warrant a
broad cease-and-desist order Hickmott Foods, 242 NLRB
1357 (1979)
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed'9
ORDER
The Respondent, Paul Mayfield d/b/a Mayfield
Produce Co , Staunton , Virginia, its agents , officers, suc-
cessors , and assigns, shall
1 Cease and desist from
(a) Discouraging membership in the Union, or any
other labor organization , by discharging employees or
otherwise discriminating in any manner with respect to
their tenure of employment or any term or condition of
employment
(b) Threatening employees with discharge , loss of jobs
and overtime , and change of operations or plant closure
if they select a union as their collective-bargaining repre-
sentative
(c) Coercively interrogating employees concerning
their or other employees ' union activities or sympathies
(d) Engaging in surveillance of union meetings and ac-
tivities or creating an impression that it is doing so
(e) Telling employees that other employees were or
would be discharged or otherwise discriminated against
because of their union activities
(f) Promising to give employees health and life insur-
ance coverage, bonuses, free uniforms , and other benefits
if they opt to be represented by a union
(g) Granting employees health and life insurance cov-
erage, bonuses, free uniforms, and other benefits to
induce them to opt not to be represented by a union
(h) In any other manner interfering with , restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request , recognize and bargain with the Union
as the exclusive representative of all employees in the
unit described below with respect to rates of pay , wages,
hours of employment , and other conditions of employ-
ment, and, if an understanding is reached , embody such
understanding in a written , signed agreement
All full-time and regular part -time drivers and
warehousemen including produce packers and sort-
ers, order fillers, loaders, laborers, receiving and
storage and salad room workers, employed by it at
its facilities in or near Staunton, Illinois, excluding
clerical and professional employees , guards, and su-
pervisors as defined in the Act
(b) Offer Robert Holland , Michael Johnson, Thomas
Butler, Thomas Barnes, Kenneth (Gene) Hay, Lester
Hall, Richard Simburger, and Matthew Potocki Jr im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision
(c) Remove from its files any reference to the unlawful
discharges of and failure to reemploy Robert Holland,
Michael Johnson , Thomas Butler, Thomas Barnes, Ken-
neth (Gene) Hay, Lester Hall, Richard Simburger, and
Matthew Potocki Jr , and notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way
(d) Preserve and, on request, make available. to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records , timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its facilities in or near Staunton , Illinois,
copies of the attached notice marked "Appendix "80
Copies of the notice , on forms provided by the Regional
Director for Region 14, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
1s If no exceptions are filed as provided by Sec 10246 of the Board's YU if this Order is enforced by a judgment of a United States court of
Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation-
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National
poses Labor Relations Board "
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations of the Act specif-
ically found
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.
The National Labor Relations Act gives all employees
the following rights.
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives
of their own choosing
To act together for collective-bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT discourage membership in Teamsters
and Chauffeurs Local 525, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
by discharging any of you or in any manner discriminat-
ing against you in regard to your tenure of employment
or any term or condition of employment.
WE WILL NOT threaten you with discharge, loss of
jobs and overtime , and change of operations or plant clo-
sure if you select a union as your collective -bargaining
representative.
WE WILL NOT coercively interrogate you concerning
your or other employees' union activities or sympathies.
WE WILL NOT engage in, or in any way create an im-
pression we are engaging in, spying on union meetings or
employee union activities.
WE WILL NOT tell you that other employees have been
or will be discharged or otherwise discriminated against
because of their union activities.
WE WILL NOT promise or give you benefits if you
decide not to be represented by a union.
WE WILL NOT in any other manner interfere with, re-
strain , or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain with
Teamsters and Chauffeurs Local 525, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , as the exclusive
representative of all employees in the unit described
below with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, and, if
an understanding is reached , embody that understanding
in a written signed agreement:
The bargaining unit is-
All full-time and regular part-time drivers and
warehousemen including produce packers and sort-
ers, order fillers, loaders, laborers, receiving and
storage and salad room workers, employed at our
facilities in or near Staunton , Illinois, excluding
office clerical and professional employees , guards,
and supervisors as defined in the Act.
WE WILL offer Robert Holland, Michael Johnson,
Thomas Butler, Thomas Barnes, Kenneth (Gene) Hay,
Lester Hall, Richard Simburger, and Matthew Potocki
Jr. immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharge, less any net
interim earnings, plus interest.
WE WILL remove from our records any references to
those discharges, and WE WILL notify those employees in
writing that this has been done and that the discharges
will not be used against them in any way.
All of you are free to join Teamsters and Chauffeurs
Local 525, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America , or any other labor organization.
PAUL MAYFIELD D/B/A MAYFIELD
PRODUCE CO.