Metro Center, Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1983

267 N.L.R.B. 288 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metro Center, Inc. and Local No. 863, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases 22-
CA-9736 and 22-CA-10388
23 August 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 November 1982, Administrative Law
Judge Joel P. Biblowitz issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief. The Gener-
al Counsel filed cross-exceptions and a supporting
brief. Finally, Respondent filed a brief in opposi-
tion to the General Counsel's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Metro Center, Inc., Edison, New Jersey, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
Insert the following as paragraph 2(b) and relet-
ter the subsequent paragraphs accordingly:
"(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze
the amount of backpay due under the terms of this
Order."
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have careful-
ly examined the record and find no basis for reversing his findings
2 In the absence of exceptions, we need not pass on the 8(a)(1) viola-
tions found by the Administrative Law Judge. Rather, we adopt, pro
forma, his findings.
267 NLRB No. 67
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWIrrz, Administrative Law Judge: This
case was tried before me in Newark, New Jersey, on
January 18, February 22, 23, 25, and 26, and May 20,
1982. The complaint and notice of hearing in Case 22-
CA-9736 was issued on June 26, 1980, based on unfair
labor practice charges tiled on January 31 and February
25, 1980. The complaint and notice of hearing in Case
22-CA-10388 was issued on December 15, 1980, based
on a charge filed on October 31, 1980. The charges were
filed by Local No. 863, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union. An order consolidat-
ing cases was issued on December 30, 1981. The allega-
tions in the consolidated complaint are that Metro
Center, Inc., herein called Respondent, violated Section
8(a)(l) of the Act by interrogating its employees regard-
ing their union membership, threatening its employees
with loss of employment if they continued to support the
Union, and asking its employees to divulge to Respond-
ent the union membership and sympathy of the other em-
ployees. The consolidated complaint also alleges that Re-
spondent violated Section 8(a)(l) and (3) of the Act by
assigning employees Sergio Machuca and Hernan Cifelli
on January 29, 1980,1 to more arduous and less agreeable
job tasks, thereby causing the termination of said em-
ployees, and by discharging James Moran on October 23,
1980, all because said employees joined, assisted, or sup-
ported the Union. The consolidated complaint also al-
leges, and Respondent agrees, that on June 4, 1981, Re-
spondent offered reinstatement to Machuca, Cifelli, and
Moran.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after consideration of
the briefs filed by the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Jersey corporation which has
maintained its principal office and place of business at
300 Raritan Center Parkway, Edison, New Jersey, herein
called the warehouse, has been continuously engaged in
providing and performing warehousing and related serv-
ices. During the year 1980, Respondent provided and
performed warehousing services valued in excess of
$50,000 for Wakefern Corporation, herein called Wake-
fern, which is located in the State of New Jersey, and
itself derived gross revenue in excess of $500,000 during
this period from the retail sale of groceries and related
products, and purchased and received goods valued in
excess of $50,000 which were shipped and delivered to it
directly from States other than the State of New Jersey.
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
l All dates herein refer to 1980 unless otherswise specified.
288
METRO CENTER, INC
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
111. THE FACTS
Since July 1979 Respondent has been engaged in pro-
viding warehousing services for Wakefern (a buying co-
operative for a chain of supermarkets) at the warehouse
involved herein. Respondent utilizes approximately
400,000 square feet of this warehouse for its operations.
This warehouse contains cartons of food and other items
normally dispensed at a supermarket. Some of these car-
tons are stored on shelves while others are warehoused
one on top of the other. The employees operating in this
area are classified as warehousemen, and there are two
essential operations performed by warehousemen; operat-
ing a hi-low (forklift truck) and selecting. The hi-low op-
erators transfer the cartons of merchandise from the de-
livery trucks to the proper location in the warehouse
where they are stored. The selectors choose cartons of
merchandise from this stock pursuant to an order form,
place these cartons on a handtruck, and bring the entire
order to a truck for shipment to the stores involved.
During the period in question, January through Octo-
ber, Respondent operated two shifts; in January, the day
shift employed between 41 employees, while the evening
shift employed between 55 and 75 employees.2 The man
in charge of these operations was Frank Coppola, Jr., di-
rector of operations for Respondent. Under him during
the day shift (7 a.m.-5:30 p.m.) were James Mendler,
shift manager, Ed Rich, warehouse manager, and Ken
James, foreman in charge of receiving. In charge on the
evening shift was Al Cetrulo, night-shift manager or
warehouse manager, and Richard Iski, shift manager.
Steve Tomaskovicz, who was the foreman in charge of
the selectors, worked the day shift in January and the
evening shift in October. All of the above are admitted
by Respondent to be supervisors and agents of Respond-
ent, and, for the most part, they spent their work hours
on the warehouse floor.
The three discharges herein occurred during two un-
successful organizational drives by the Union in January
and October, with little or no organizing in between. In
or about February 1981 Respondent recognized the
Union as the representative of its warehouse employees.
A collective-bargaining agreement was entered into in
April 1981, retroactive to February 16, 1981.
A. The Machuca and Cifelli Discharges
Hernan Cifelli began his employ with Respondent at
the warehouse in question in July 1979; he began as a
warehousemen-hi-low driver on the day shift. Sergio
Machuca commenced his employment with Respondent
in August 1979, also on the day shift. He began as a
warehousemen-selector although shortly thereafter he
became a hi-low operator. He testified that he was em-
ployed for 2 months before he became a hi-low operator;
I These numbers include maintenance employees and supervisors. The
wide range is due to absences and the high employee turnover; it appears
that there were usually no more than 50 men working on each shift.
Respondent's records indicate that on November 21 Ma-
chuca began operating a hi-low almost exclusively.
In early January a number of employees of Respond-
ent (including Machuca, but not Cifelli), while in Re-
spondent's parking lot, were discussing unionizing.
Somebody gave employee John Durand the telephone
number of Local 469, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called Local 469, and asked him to call.
He and Machuca went to the phone and kDurand called
Local 469 and said that he and his fellow employees
wished to be unionized. The person he spoke to told him
that he would leave Local 469 authorization cards for
him in the mailbox in front of the Local 469 office.
Durand drove to the Local 469 office, picked up the au-
thorization cards, and gave them all to Machuca and told
him to have the employees sign the cards and return
them to Local 469. That was the extent of Durand's in-
volvement, except that he signed a Local 469 card and
mailed it in. Machuca testiied that it was on Wednesday,
January 16, that Durand gave him the Local 469 authori-
zation cards and told him to get them signed by the em-
ployees and to return them to Local 469. Machuca then
discussed the cards with Cifelli who told him that he
liked the idea. That day, while driving his hi-low
through the warehouse, Machuca discussed unionizing
with some of the employees whom he knew, and gave
them Local 469 cards to sign. While in the warehouse
that day, Cifelli only discussed unionization with other
employees; he handed out no cards in the warehouse. In
addition, during lunch on that day, Machuca placed the
Local 469 cards on the hood of his car in the parking lot
and employees took the cards, signed them, and returned
them to either Machuca or Cifelli. He received 27 signed
authorization cards that day. He also gave a large
number of authorization cards to Angel Vega, an em-
ployee on the night shift, and asked him to have the
night-shift employees sign them.
On January 223 Machuca and Cifelli drove to the
Local 469 office where they met Walter Emerson, secre-
tary-treasurer of Local 469. Emerson told them that he
had spoken to some other union representatives and
learned that the Union (Local 863) represented the truck-
drivers employed by Wakefern and it would be more ap-
propriate for Local 863 to represent the employees
rather than Local 469; he said that he would arrange for
a meeting with the Union's representative, Jerry Galli-
chio. On the next day Machuca and Cifelli returned to
the Local 469 office where they met Gallichio and Em-
erson. They agreed that the Union would be more effec-
tive for them and Gallichio told them that they would
have to solicit new authorization cards, on this occasion
for the Union. On the following day Machuca and Cifelli
solicited the employees on the day shift to sign the union
authorization cards. They followed the same procedure
as the prior week and they explained that they needed
I The testimony is somewhat confusing regarding the date of this
meeting and the subsequent meeting with the representative of Local 863.
On the basis of all the testimony it appears that this meeting occurred on
January 22. and the subsequent meeting on January 23. although it is not
critical to the ultimate issues
289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the new cards because it was a new union. They ob-
tained 24 signed Local 863 authorization cards and on
the afternoon of January 24 Machuca requested and re-
ceived permission from his supervisor, James, to leave
work early. He and Cifelli went to the union office and
returned these signed authorization cards to Gallichio.
That was the extent of the attempt to organize the
day-shift employees prior to Machuca and Cifelli's dis-
charge. Respondent's witnesses testified that they had no
knowledge of union activity at its warehouse prior to the
discharges of Machuca and Cifelli, and, more particular-
ly, they denied any knowledge of union activity on their
part prior to their discharges. Respondent alleges that
the first they knew of any union activity on their part
was when they received the unfair labor practice charge
herein on February 1.
There are a number of allegations of interrogation and
coercion by Respondent. Machuca testified that some-
time between January 16 and 24 James approached him
while he was driving his hi-low and asked him, "Did you
sign any paper for the union?" and Machuca said that he
had not. James, who is still employed by Respondent,
did not testify. Cifelli testified that Mendler and James
(and possibly Tomaskovicz) asked him if anybody gave
him a card to sign for the Union; neither Mendler nor
Tomaskovicz specifically testified regarding this conver-
sation. These events occurred in or about the week of
January 21 while he was driving his hi-low. Employee
James Murawski testified that at or about the end of Jan-
uary, while he was selecting, James asked him if he
signed a card for the Union and Murawski answered,
"Of course I did." (No action was taken against him.)
Employee Robert Goodson testified that, a few days to a
week after he signed a card for a union given to him by
Machuca, Tomaskovicz approached him while he was
selecting and asked him if he knew of anybody that was
passing out cards or talking about starting a union and
Goodson said that he did not. Tomaskovicz testified that
he never asked Goodson, or any other employee, wheth-
er he knew of anybody passing out cards or talking
about a union.
Employee Fred Schmidt testified that, after he signed
the two union authorization cards given him by Ma-
chuca, Coppola "joking around he came up to me and
asked me if I was out in the parking lot signing cards."
Schmidt told him yes.4 Coppola testified that in early
February, after he had received a copy of the unfair
labor practice charge and while he was walking through
the warehouse, Schmidt said to him that a lot of people
were signing union cards. Coppola then asked Schmidt if
he did "and then I realized .. . that I was probably
doing something that I shouldn't be doing, and I ended
the conversation."
At the time in question, Machuca and Cifelli were
driving to work together in Cifelli's car. On Friday, Jan-
uary 25, they were unable to get to work because Cifel-
li's car was not operating. Machuca called Respondent
4 As to why he felt that Coppola was joking, Schmidt testified:
He always thought I was a leader there . .. so he always fooled
around with me . . saying . . . anything that went on I knew ev-
erything . . . and I always admitted to him . .. the truth, hoping
that he would never believe me
and informed "Jerry Spillar" (whose position is unstated)
that they were having car trouble and would not be in,
but if they were able to repair the car they would report
for work. At or about I or 2 o'clock Cifelli's car was op-
erating again. They then droved to the union office and
dropped off the signed authorization cards; they then
stopped at Vega's home where they picked up the signed
union authorization cards for the night shift. At that time
Muchuca and Cifelli decided to report to the warehouse
to work the night shift. They arrived at the warehouse at
or about 7 p.m., without having called first to say that
they would be reporting.
Machuca testified that when they arrived at the ware-
house they did not see Cetrulo, the usual supervisor on
the night shift; instead, they saw Coppola who said that
they have been fired that morning. Machuca said that he
had called at 7 that morning to report that they would
not be in because of car trouble, and Coppola said that, if
they wanted to work, they would have to work for Ce-
trulo, who had not yet arrived. Coppola then put his
hand on Machuca's shoulder and said, "Someone told me
you guys want to make trouble for me." Machuca asked,
"What kind of trouble?" and Coppola said, "You know
what kind of trouble." Coppola then asked Machuca if
he knew anyone who signed a card for the Union and he
said, "No." Coppola asked if Machuca had signed a card
for the Union and again he answered, "No." Coppola
then said that if a union came in everybody would have
to look for a new job. Coppola then told Machuca and
Cifelli that they would have to perform selecting work
until Cetrulo arrived, and he took them to the head of
the line of selectors who were waiting to receive their
selecting orders from the order clerk. Coppola then
walked away, and, shortly thereafter, so did Machuca
and Cifelli, who, without waiting for a selecting order,
on their own initiative, got on their hi-lows5 and began
performing duties as if they were on the day shift. About
15 minutes later, Cetrulo saw them and said that he had
enough hi-low drivers for the night and he only needed
selectors; if they did not want to select they should go
home. They said that they did not want to select, 6 and
Cetrulo told them to go home. Coppola then said, "I'll
see if I can get the pay for you today" (they were not
paid for that day), and Coppola told them not to forget
to report to work the next day for inventory, which they
did.
Ciffeli testified that when they arrived for work that
evening they saw Coppola, who said that he thought
they were fired, and Muchuca told him that they had
called in that morning. They said they would like to
work and Coppola put his arms around both their shoul-
ders and said, "Somebody told me you two guys [are]
trying to make a problem for me." Machuca asked what
kind of problem and he told both that they knew what
he was talking about. Coppola then asked if anyone
5 Hi-low drivers keep the keys to their vehicles in their possession,
even during nonworking.
^ The next day, beginning at 7 a.m., they had to report for work for an
inventory. They testified that they refused to select that evening because
selecting work is more taxing physically than driving a hi-low, and they
felt that if they selected from 7 p.m. to 5:30 a.m. that evening they would
not be able to perform the inventory work the next morning.
290
METRO CENTER. INC.
asked them to sign a card for the Union and they both
said, "no." Cifelli said, "Well, soon as I know somebody
is for the union, I'll let you know." Coppola then said
that the Union was not good for them because if the
Union came in everybody would have to find another
job. Unlike Machuca, Cifelli testified that Coppola did
not take them to the head of the line of selectors waiting
for orders; he testified that Coppola said that they should
do whatever they could do until Cetrulo arrived. They
drove their hi-lows, and when Cetrulo arrived, he told
them he had enough hi-low drivers that night and if they
wished to stay and work they would have to select.
They said that they did not want to select. Coppola then
said, "don't forget, I want you early tomorrow morning
· . . for the inventory," and they left and reported the
following morning at 7 a.m. for the inventory.
Coppola testified that while he was at the warehouse
on January 25 he received a call from Cetrulo, who said
that he was caught in traffic and expected to be about 20
minutes late arriving for work. At or about 7 p.m., he
saw Machuca and Cifelli come into the warehouse and,
since they had called in that morning to say they would
not be able to report for work, he asked, "What are you
doing here now?" They said that they had fixed the
problems on their car and were ready to work. Coppola
said Cetrulo was not in yet, and they would have to wait
until he arrived before they would receive a permanent
assignment for the evening;7 and when Cetrulo arrived
he might assign them to their hi-lows, but meanwhile
they would have them select. Coppola then took them to
the place where the selectors receive their orders. About
40 employees were waiting, at the time, to receive their
orders from the order clerk. Coppola went to the head
of the line with Muchuca and Cifelli and told the order
clerk to give them orders that would take about 20 min-
utes (Coppola felt that by that time Cetrulo would arrive
and he could assign them a job for the evening), and
Coppola walked away without waiting to see them begin
selecting. Shortly thereafter, Coppola saw either Ma-
chuca or Cifelli driving a hi-low. He asked the order
clerk why he had not given them orders to select and
the clerk said that he did not have an opportunity be-
cause they walked away without taking an order. A few
minutes later Cetrulo arrived and Coppola told him that
Machuca and Cifelli had arrived to work the night shift,
he had attempted to get them to select until Cetrulo ar-
rived, but "they had defied my instructions and what
was he going to do." Cetrulo said that he did not need
any hi-low drivers; he had his own. Machuca and Cifelli
were paged and Cetrulo asked them what they were
doing, and they said that they were hi-low drivers. Ce-
trulo said that Respondent did not need hi-low drivers
that evening, but that they could select. They said that
they did not want to select, and Cetrulo said in that case,
he did not need them, and they left.
Regarding the testimony of Machuca and Cifelli that
Coppola told them that they were making "trouble" or a
7 Coppola testified that a lot of the merchandise in the warehouse had
already been precounted in preparation for the inventory the following
day; he asked Machuca and Cifelli to await Cetrulo's arrival before re-
ceiving a permanent assignment to be sure that he did not assign them to
a job that would involve some of this precounted inventory.
"problem" for him, Coppola testified that he did make
some reference to this, but it was said as a joke. He testi-
fied:
I told them that by them coming in at night, not
coming in during the day, was going to create a
problem for me because I had to find work for
them for the evening and I was going to be ex-
tremely concerned about the inventory that was
going to be held the next day and by them coming
in at night and working all night and then attempt-
ing to work the whole day the next day, I jokingly
said they're causing me trouble and I could lose my
job if the inventory went bad.
I was kidding them, and I told them . . . them
coming in and possibly . . . being so tired they
wouldn't be able to come in for the inventory the
next day, they were going to create trouble for me
and make me earn my job, possibly lose it if they
didn't show up and we screwed up the inventory
. . . trouble that now I have to work, to find work
for them, to make sure that they were there for the
inventory.
Coppola testified further that he was upset with Ma-
chuca's and Cifelli's conduct because they had defied his
orders when he instructed them to select until Cetrulo
arrived, and they, instead, drove their hi-lows. He ex-
pressed this feeling to Cetrulo that night and to Mendler
sometime prior to Tuesday, January 29.
Cetrulo testified that he arrived for work at or about
7:20 p.m. that evening. Coppola told him that Machuca
and Cifelli did not work that day during their regular
shift, the day shift and that he told them to take a select-
ing order. At that point they drove by in their hi-lows.
Cetrulo told them that they would have to select that
evening because the hi-lows were all assigned to employ-
ees normally employed on the night shift. They said that
they did not want to select and Cetrulo told them that
they would have to go home and report to work on their
next shift, and they left.
As stated supra Machuca and Cifelli operated their hi-
lows on the inventory the following day; they had other
employees on the arms of the hi-low who counted the
inventory and called the count to somebody on the
ground who was keeping the records. They were not
scheduled to work on Sunday, January 27. On Monday,
January 28, both Machuca and Cifelli operated their hi-
lows for the entire workday.
Machuca and Cifelli arrived for work on Tuesday,
January 29, at or about 7 a.m. Because there are some
significant discrepancies in the testimony regarding what
occurred that morning, each witness' testimony will be
recited separately. Machuca testified that at or about 7
a.m. he and Cifelli were paged over the intercom to
report to Mendler's office. When they arrived Mendler
"asked about the key, the key for the hi-low." On cross-
examination, he testified that Mendler said, "Give me
your keys . . . for the hi-low." Machuca asked why. On
direct examination, Machuca testified that Mendler said,
"Because now you're going to select." On cross-examina-
tion, Machuca testified that Mendler said "from now on"
291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they would have to select. Machuca asked why and
Mendler said that they should see Coppola if they
wanted "a better answer." Mendler then asked them,
"You quit?" they said, "No.... We want to see Mr.
Frank Coppola first." They then drove to Coppola's
office and waited for him in the parking lot. He arrived
at or about 8:15 or 8:30. When Coppola saw them he
said, "What are you doing here?" They told him what
occurred and that Mendler took away their hi-low keys
and Coppola said that from now on they would select
because they refused to select the prior week. Coppola
told them to go home and call him later. At or about 2
o'clock Machuca called Coppola and told him that he
would return to work the next day and select. Coppola
said, "I'm sorry, Sergio, I can't help you. You're fired."
He asked why and Coppola said that it was because he
refused to select the prior week. Coppola then asked to
speak with Cifelli and Machuca gave him the telephone.
In answer to questions from me regarding his conver-
sation with Coppola in the parking lot, Machuca testified
that he did not remember whether he told Coppola that
he would not do selecting work. Shortly thereafter he
testified that he did not tell Coppola that he would not
do selecting work, but he did tell Coppola (in this park-
ing lot conversation) that he did not want to be a selec-
tor. He testified that neither in this conversation nor any
other did he say he was quitting his job.
Cifelli testified that on the morning of January 29 he
and Machuca were called to Mendler's office. Mendler
asked them to give him the keys to their hi-lows because,
"You have to go to select." 8 He and Machuca asked
why they would have to select and they told Mendler
that they did not want to select, but Machuca did not
say that he was quitting, and Cifelli did not say that he
would have to take Machuca home. Mendler told them
that if they had any questions they should see Coppola.
They drove to Coppola's office and waited for him in
the parking lot. When Coppola saw them he asked what
they were doing there. Either he or Machuca asked Cop-
pola why Mendler took their keys for the hi-lows away
and Coppola said that he did not have anything to do
with it, but that he was mad at them for refusing to
work the prior Friday. Cifelli said that he refused to
work because they had inventory the following day and
Coppo!a said that they should go home and call him
later. That afternoon they called Coppola. Machuca
spoke to him first and then gave the phone to Cifelli.
Coppola told Cifelli, "I'm sorry, I can't help you. You're
fired."
Mendler testified that on the morning of January 29 he
realized that he needed more selectors. While in the
warehouse he saw Machuca and Cifelli and told them
that they would have to select for the day. Machuca said
that he was not going to select. Mendler told them to go
upstairs to the office. He met them in the office 5 to 10
minutes later. Tomaskovicz was also present. Mendler
told them that he needed selectors that day and that he
8 Mendler did not tell them for how long they would have to select.
He testified that he always keeps the key to his hi-low and never previ-
ously was asked to return it. When he was told to select for a week as
punishment for throwing a box on a pallet, he did not have to turn his
key in.
did not have enough work for hi-low men, and therefore
they would have to select that day. Muchuca said that if
he had to select he would quit. Mendler said, "You have
to select because I need selectors," and Machuca said
that he would not select and gave Mendler the key to his
hi-low. Mendler asked Cifelli what he was going to do
and he said that he was going to give Machuca a ride
home because they rode together and Cifelli gave
Mendler his hi-low key although Mendler testified he did
not ask for it.9 He assigned one other hi-low driver to
select that day and chose Machuca and Cifelli because he
needed additional selectors that day, and "they had a
poor work performance in the warehouse . . . lately,"
although, when asked if this was the way he always
chose people to select, he answered, "Not all the time,
no," but on that day he felt it was a good time to punish
them for poor work performance because he needed
more selectors.
Tomaskovicz testified that at the very beginning of the
day shift on January 29 he was called to Mendler's
office. Mendler was there with Machuca and Cifelli.
Mendler told them that they would have to select for the
day. Machuca said that he would not select. Mendler
asked them if they would select for the day and Ma-
chuca repeated that he would not select. He handed
Mendler the key to his hi-low (without being asked for
it) and left the office. Cifelli said that he had to drive
Machuca home, gave Mendler the keys to his hi-low,
and left.
Coppola testified that on January 29, shortly after 8
a.m., he drove into his parking space and Machuca and
Cifelli were waiting for him. He asked what they were
doing there and they said that they were told to select.10
Machuca said that he was not going to select, that he
quit. Cifelli said that they did not want to select. At an-
other point in his testimony he testified that Cifelli said
that he was not going to select, but that he would drive
Machuca home and return to work. Coppola told them
that he was upset at them for what they did on Friday
evening. He is the head of the warehouse and gave them
instructions on what to do, and they defied those instruc-
tions. Coppola said that he wanted to speak to Mendler,
and Cifelli should not return to work until he called him.
Coppola then called the warehouse and was told that
they needed some selectors and Machuca and Cifelli
were asked to select "and they refused. Sergio had quit.
Hernan had indicated that he was not quitting but he
wasn't going to select, but he was going to come back.
Just what Hernan had told me." That afternoon Coppola
received a call from Machuca who said that he was
going to come back. Coppola said, "no you're not. As
far as I'm concerned you quit, and if you didn't quit, I'm
going to fire you, because you refused an order." Cifelli
got on the phone and Coppola told him that he v.was also
fired. Coppola testified that he did not learn of Machu-
ca's and Cifelli's activities on behalf of the Union until he
received the unfair labor practice charge in the very be-
ginning of February, but at or about that time he heard
9 He testified that Cifelli did not say that he was quitting.
'o Coppola testified that he had not directed Mendler to have Ma-
chuca and Cifelli select on that day.
292
METRO CENTER, INC.
"general talk" of a union, although he was not sure
whether this occurred before or after he received the
unfair labor practice charge.
Sometime between a few days to a week after January
29, Machuca and Cifelli received identical letters from
Respondent. The letters, which were signed by Coppola,
stated:
As stated above, your employment with Metro
Center is terminated for the following reasons:
A) You reported to the wrong shift for work on
Friday, January 25, 1980, without the permission of
the shift supervisor. (reported to 2nd shift-normal
shift is Ist).
B) When asked to do the normal warehousing
work, you refused and insisted on operating a fork
lift. Upon your refusal to do normal warehouse
work you were sent home.
C) On Tuesday, January 29, 1980, the shift man-
ager and a foreman of Metro requested that you do
normal warehouse work. You verbally stated to
them that you quit.
D) Based upon the information listed above, it is
decided that you have terminated your employment
with us and are not considered rehirable by Metro
Center.
Machuca and Cifelli testified that they went with Ma-
chuca's wife to see Coppola. They spoke about the let-
ters they received and Machuca's wife said that was not
the real reason they were discharged, and everybody
knew the real reason for this discharge. Coppola did not
answer. Coppola testified that Machuca's wife asked why
they were discharged and Coppola told her that it was
because they had refused to do what they had been told.
Machuca's wife said that was not the real reason they
were fired and everybody knew what the real reason
was. Coppola said that he did not know what she was
talking about, and she never explained further what she
meant. Coppola testified there was an error in the letter
to Cifelli. He did not quit as Machuca had, and he (Cop-
pola) did not read the letter carefully before it was sent
to Cifelli. Coppola also testified that Respondent does
not always send letters to employees it previously termi-
nated, although it has done so in the past.
Produced at the hearing was the following employee
disciplinary report dated January 29 and signed by
Mendler and Tomaskovicz. This report was not given to
either Machuca or Cifelli:
Warehouse Employees: Hernan Sifelli [sic]
Sergio Machuca
On January 29, 1980, Mr. Sifelli [sic] and Mr.
Machuca were asked to do selection by the Shift
Manager, Mr. James Mendler, and the Production
Foreman, Mr. Steve Tomaskovicz. They were taken
off the hi-lo and returned to selecting orders be-
cause:
1. Damage to goods
2. Interfering with other workers
3. Submitting false work sheets
The above mentioned parties, Mr. Sifelli [sic] and
Mr. Machuca refused to return to selecting orders
they were told to do by their immediate supervi-
sors, stated they quit, and walked off the job.
In regard to the allegations contained in this discipli-
nary report, Machuca testified that neither Copolla,
Mendler, or Tomaskovicz ever spoke to him about the
subjects numbered 1, 2, or 3 and he never received any
discipline or warning prior to January 29 for these of-
fenses or any other offenses. Additionally, neither
Mendler nor Tomaskovicz ever warned him about talk-
ing with other employees in the aisles.
Cifelli was given the following employee disciplinary
report dated January 7 and signed by Mendler and To-
maskovicz:
Warehouse Employee: Mr. Hernan Sifelli [sic]
While being observed by James Mendler, Shift
Manager, and Steve Tomaskovicz, Production Man-
ager, the below mentioned employee, Mr. Hernan
Sifelli [sic], had a case of goods on his hi-lo and
went to the rack slot where the merchandise was
supposed to go and without getting off the hi-lo,
threw the case onto a pallet causing the case to
brake [sic] open along with a case that was already
on the pallet.
A decision by the Shift Manager and the Produc-
tion Manager was made to keep the above men-
tioned employee suspended from the operation of a
hi-lo for three days. ''
Cifelli testified that he did commit the offense referred
to in this disciplinary report (he testified, ". .. because I
throw the case and I'm not supposed to do that, and I
did") and because of it he was assigned to select for a
week. It was the only occasion that he selected for Re-
spondent. However, according to Cifelli's testimony that
was the only occasion on which he was warned or
spoken to about his work. He was never warned or
spoken to about interfering with the work of other em-
ployees or about falsifying work reports (items 2 and 3
on the January 29 employee disciplinary form).
Mendler testified that, at the time he assigned Ma-
chuca and Cifelli to select on January 29,l2 he did not
suspect that they were active on behalf of a union and
his decision to assign them to select was not motivated
by any belief that they were involved in union activities.
He instructed Tomaskovicz to prepare the January 29
employee disciplinary report "so I'd have this in my file
to show why I asked him [sic] to select that day. He also
testified that the three infractions listed in the January 29
Employee disciplinary report occurred about 2 or 3
weeks earlier. No prior written warning was given to
Machuca and Cifelli about these incidents although
James (who did not testify) informed him that (as re-
gards the falsification of work sheets) "it was pointed out
I It was actually for a week.
12 He testified that he was not sure whether he informed Coppola, on
that day, that he chose them for selecting work because of their poor
work performance recently.
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to them." What this involved was: "They have hi-low
work sheets to show how many moves they made and
the date for the shift. And they put down ten when actu-
ally they moved two." As regards their interfering with
other workers, Mendler testified that Tomaskovicz in-
formed him that they were stopping other employees in
the aisles and talking to them. Regarding the damage to
goods, and whether Machuca and Cifelli were both
guilty of this offense, Mendler testified: "Not the same
thing, no. I think it was Cifelli, I think he was the one
that threw it. And Machuca, he was just driving careless,
losing stuff on pallets."'3 This was also based on infor-
mation given him by Tomaskovicz.
Tomaskovicz testified that sometime after Machuca
and Cifelli were terminated Mendler told him that he
chose them for selecting work on January 29 because of
the damage to the goods, talking in the aisles, and the
falsification of reports. He only had personal knowledge
of one case of damaged goods (presumably involving Ci-
felli), which occurred about 2 weeks prior to their termi-
nation, and their talking in the aisles. This also occurred
about 2 weeks prior to their termination. When he was
walking through the warehouse he saw Machuca and Ci-
felli talking to other employees in the aisles. They usual-
ly stopped when they saw him. If they did not, he told
them to stop. It was not until after their termination that
he learned that there was union activity at the ware-
house. Tomaskovicz testified further that he prepared the
January 29 employee disciplinary report. Mendler asked
him to prepare it a few days after they were terminated.
Mendler told him that "he wanted a document in the
file."
The nature of this case demands an analysis of the tes-
timony regarding the frequency of and guidelines for as-
signing employees who ordinarily drive a hi-low to per-
form selecting work. A summary of Respondent's
records establish that beginning October 17, 1979 (the
date the summary begins), Cifelli selected only for the
period October 29 through November 7 (presumably this
was the week he was assigned to selecting for throwing
the carton from his hi-low) for 3 hours on Monday, No-
vember 12, 1979, for 8 hours on Tuesday, November 13,
1979, for 4-1/2 hours on Saturday, January 6, for 3-1/4
hours on Tuesday, January 8, and for 9 hours on
Wednesday, January 9.'4 It was on November 24, 1979,
that Machuca began working principally as a hi-low
driver. From that date through January 28 he selected
on only one occasion, Saturday, January 5,15 for 9
hours. He operated the hi-low for the remaining hour
that day.
Machuca testified that he knew of some employees of
Respondent who selected from time to time in addition
to operating a hi-low. Murawski, who began his employ-
ment with Respondent in September 1979 as a selector,
became a hi-low driver 6 months later, and is presently
employed as a checker on the front dock for Respond-
"' Mendlei testified that he was aware that Cifelli had previously been
punished for this offense by being taken off his hi-low for a week.
14 Cifelli testified that, other than the I week he was assigned to select
as punishment for throwing the carton, he was never assigned to select-
ing.
in Machuca testified that since he became a hi-low operator he never
was asked to select prior to January 25
ent. He testified that when he was a hi-low driver for
Respondent and Respondent needed extra selectors they
would first choose the hi-low driver with the least hi-
low seniority. While he was a hi-low driver he selected
twice a month, at the most, and less than that after he
had earned seniority as a hi-low driver. It was generally
when some of the regular selectors were absent from
work or there was a heavy load of work that had to be
picked that Respondent asked the hi-low drivers to
select. On those days when he was assigned to select he
kept the key to his hi-low.
Goodson began his employ with Respondent in No-
vember 1979 as a selector, and became a hi-low driver in
February. During the first month that he was operating
as a hi-low driver he was asked to select about once a
week. After the first month he was never asked to select
again. When he first became a hi-low driver Respondent
chose the least senior hi-low driver to select. For a few
days in February Respondent changed the method of
choosing selectors to sharing among all the hi-low driv-
ers. A few days later Respondent discontinued this
method and returned to choosing the least senior hi-low
driver to select. On those occasions when he was as-
signed to select while he was a hi-low driver, he kept the
key to the hi-low in his possession. Schmidt, who was
employed by Respondent beginning in September 1979
as a selector and became a hi-low operator 2 weeks later,
testified that he was assigned to select on only one occa-
sion, for I day as a punishment for talking to a selector
in the aisle of the warehouse.
Coppola testified that on January 29 there were less
senior hi-low drivers than Machuca and Cifelli. He also
testified that in January orders for selecting did not
arrive on Monday mornings. On Monday, at that time,
selecting was done for orders that were not completed
the prior week, although, generally, orders were re-
ceived on the same day that they were to be selected. At
that time, Tuesdays, Thursdays, and Saturdays were the
days when most orders were received. Mendler testified
that, in choosing hi-low operators to do selecting, he
sometimes based his choice on work performance, as
with Machuca and Cifelli, although, generally, Respond-
ent attempted to use the seniority of the hi-low operators
as the basis for selecting. However, during the end of
December 1979 and the beginning of January they at-
tempted to rotate the selecting work among all the hi-
low operators, but there were too many complaints
about this method and they returned to the seniority
method of selection. He testified further that prior to
January 29 Machuca and Cifelli had last selected some-
time during the week of January 21. Tomaskovicz testi-
fied that when he became employed by Respondent, in
January, the hi-low operators were being assigned to se-
lecting on a sharing or rotating basis, and this method
was not changed to a seniority sytem until about March
or April.
Received into evidence was Respondent's daily shift
roster for the day shift for January 28, 29, and 30, show-
ing the number of employees in each job category on
those days. On the day shift on Monday, January 28, Re-
spondent employed seven hi-low drivers part time (6
294
METRO CENTER, INC.
hours each) on rail receiving, while employing seven se-
lectors an average of 8-1/4 hours. On Tuesday, January
29, Respondent employed 10 hi-low drivers: 4 in the
warehouse (3 working there the entire day and the
fourth driving for 6 hours in the warehouse and spending
the remaining 4 hours in truck receiving), 4 in truck re-
ceiving (3 working the full 10 hours there, while I
worked there for 3 hours and worked 7 hours on rail re-
ceiving), plus I who drove a hi-low in truck receiving
for 2 hours while selecting for the remainder of the day.
In addition, one employee spent 7 hours that day on a hi-
low in rail receiving. On that day, Respondent employed
18 selectors, 16 of them for 9 hours each, 1 for 7-1/2
hours, and 1 for 8 hours. On Wednesday, January 30,
Respondent employed five warehouse hi-low drivers full
time in the warehouse and six hi-low drivers in truck re-
ceiving, four full time and two for 6-1/2 hours (one of
whom spent the remaining 3-1/2 hours of his workday
driving a hi-low in rail receiving). On that day Respond-
ent employed 17 selectors an average of about 8-1/2
hours. The total number of pieces selected on those days
were: January 28-9,325; January 29-19,215; and Janu-
ary 30-16,201.
Because of the lack of direct evidence of knowledge
on the part of Respondent's agents of Machuca's and Ci-
felli's activities on behalf of the Union (and Local 469)
from January 16 through 29, the General Counsel pre-
sented evidence of the layout of the warehouse. Presum-
ably, the General Counsel's position is that this type of
facility, plus the testimony of Tomaskovicz that during
the period in question he observed Machuca and Cifelli
talking in the aisles to the other employees, establishes
that Respondent was aware of what they were discuss-
ing. As previously stated, this is a warehouse of approxi-
mately 385,000 square feet. In some areas (about 75 per-
cent of the warehouse area) there were racks with car-
tons of merchandise on them; in other areas cartons were
piled on top of each other without the benefit of racks.
The racks are about 12 feet wide and the aisles are about
10 feet wide. The testimony was that the supervisors
(more particularly, in the situation involving Machuca
and Cifelli, Mendler and Tomaskovicz) spent their work-
day walking throughout the warehouse. Cifelli, Mur-
awski, and Moran testified that you could generally hear
people talking from one aisle to the next. Goodson testi-
fied that about 10 percent or more of the racks in the
warehouse were usually empty, and in those areas you
could overhear conversations taking place in the adja-
cent aisle; where the racks were half full, according to
Goodson's testimony, you could probably overhear such
a conversation.
B. Moran's Discharge
James Moran began his employ with Respondent in
November 1979 as a warehouseman on the night shift
whose primary function was selecting. Sometime thereaf-
ter, he became an assistant foreman whose primary func-
tion was operating as a hi-low driver. The parties stipu-
lated that under that title he was not a supervisor within
the meaning of the Act. On September 18, while remain-
ing assistant foreman, he returned to being primarily a
selector at his own request. Between that date and Octo-
ber 23, the date of his termination by Respondent,' 1 he
was in the top 20 percent for productivity of those em-
ployees whose primary job was selecting, approximately
15 in number.
Moran testified that he signed a card for the Union in
February. In September he was asked to sign another
card for the Union by Steve Durek, assistant foreman.17
He said that he had signed one in February, and he did
not like what had happened after signing that card, and
he wanted to be sure that everybody signed before he
signed a new card. About 2 to 3 weeks later, on Septem-
ber 30, after he learned that most people were signing
union cards, he signed one.
Moran testified that from about September 15 through
October 23 he had numerous discussions with fellow em-
ployees about the Union while at work. "Everybody in
the place was talking about the union everyday," accord-
ing to Moran. On these occasions he was asked if he
thought the Union was good, and he answered he did
because there was no way they would get anything
unless they had a union. During the last few weeks
before his discharge these conversations occurred about
five or six times on each shift, on an average, and they
took place while the employees were selecting in the
same aisle, although he felt that it did not have any
effect on their work. On most of these occasions he was
not the one who initiated the discussion.
Beginning a few weeks before Moran's discharge,
there were discussions between employees (at least on
the night shift) about what they perceived as an increase
in disciplinary notices given by Respondent. On the
evening of October 23, Moran was approached by a
fellow employee, Charlie Peterson, who said that he was
concerned about the increased number of disciplinary no-
tices and he felt that the employees could put a stop to
the practice by convincing all the night-shift employees
to call in sick the following day.'8 During the 9 p.m.
break Moran was sitting with three or four employees
who said that they were going to call in sick the next
day. Moran said he would speak to some other employ-
ees about it. He then turned around and asked some
other employees if they would take part by calling in
sick the next day to protest the discipline slips. Between
that time and the dinner break Moran spoke to between
15 and 20 employees about the proposed sick-out. He
spoke to them in all areas of the warehouse while they
were working. "Their response was very favorable; ev-
erybody was agreeing with it," according to Moran.
At or about 1:10 a.m. Moran took a cigarette break in
the locker room with Clark Jago and six other employ-
ees. They discussed the proposed sick-out the next day.
Moran did most of the talking and said that they were
attempting to have 100 percent participation by the night
shift. This break lasted about 5 minutes, and as Moran
was leaving the locker room he saw Cetrulo, Iski, and
16 Actually, his discharge occurred on October 24 as it took place
after midnight.
IT Durek was still employed by Respondent when Moran was dis-
charged.
:' The affidavit Moran gave to the Board makes no mention of a pro-
posed sick-out.
295
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tomaskovicz standing about 100 feet from him looking
toward the locker room. Moran then returned to his aisle
to continue selecting. Jago was also in the aisle at the
time and they again discussed the proposed sick-out.
About three of the employees whom he had previously
spoken to in the locker room stopped him while he was
in the aisle, as he was just beginning to return to select-
ing, and asked him if he were going to participate in the
sick-out. He said that he was, but "you'd better get out
of here, go do your job because we're being watched."
At the time Mendler, Tomaskovicz, and Iski were staring
at him from a distance of about 25 feet. This continued
for about 5 minutes. Mendler, Iski, and Tomaskovicz
walked toward them and Moran and Jago continued
working and talking. The supervisors walked by them,
and Moran saw them enter the office.
Jago testified that about a week before Moran's dis-
charge he asked Cetrulo a question about the Union
coming in. 19 Cetrulo told him that there was a union
trying to organize the warehouse employees, and if it
were successful the employees would lose their overtime
and bonus checks. Jago testified that he and Cetrulo
"always talked. If I had a problem or question I talked
to him, so I didn't think anything about it, just bringing
it out in the open and asking him." Cetrulo denied any
such conversation.
Jago testified that he signed a card for the Union in
August or September. The card was given to him at the
gate entrance to the warehouse by an individual who
was not employed by Respondent. That evening he and
Moran discussed the Union's organizational attempt.
Subsequent to that time, on at least two or three occa-
sions, he overheard Moran discussing the Union with
other employees in the warehouse. On the evening of
October 23 there were discussions among the employees
of a possible sick-out the following day due to what the
employees perceived to be an unwarranted increase in
disciplinary warnings-pink slips. He first learned of it
from Peterson. Afterward he had approached a number
of other employees, including Moran, informed them
that he had heard about the proposed sick-out from Pe-
terson, and asked if they had heard of it and whether
they were going to participate. He did not remember
what their answers were.
Coppola testified that during the late summer or early
fall he became aware of the Union's organizational at-
tempt at the warehouse. He said, "You'd have to be
blind not to see it." He observed the shop steward for
the trucking company that Wakefern used, and occasion-
ally Gallichio, handing employees Union authorization
cards by the door to the warehouse on about a dozen oc-
casions. He made no effort to stop it.
Cetrulo testified that during the week prior to October
23 he had warned Moran about excessive talking and ex-
cessive breaks on four or five occasions. On each of
these occasions, Moran was alone, smoking. He had
19 The precise question Jago asked is not clear from the record. He
testified. "I can't remember my questions that I asked him other than the
union coming in and I believe he said .... "
never similarly warned him prior to that.20 On October
23 at or about 7:10 p.m. he saw Moran smoking a ciga-
rette in the men's room. He told him that the shift had
just begun and he was already smoking a cigarette. He
also told him that as assistant foreman he should set a
better example. Moran then returned to work. Later that
evening, Iski told Cetrulo that he had warned Moran
twice that evening about excessive breaks. In addition,
both he and Iski observed Moran spending excessive
time conversing with the employees in the aisles interfer-
ing with their work. Cetrulo testified further that as of
October 23 he had no knowledge that Moran was en-
gaged in any activities on behalf of Local 863, nor did he
have any knowledge on that day, or the next day, of a
proposed sick-out, nor did he believe on that evening
that on those occasions when Moran was observed con-
versing with other employees the subject of these con-
versations was the Union. Cetrulo also testified that on
October 23 he was unaware of union activity at the
warehouse or that the employees signing authorization
cards for the Union or any union.
Tomaskovicz testified that on the evening of October
23 he observed Moran (and Jago) taking extended
breaks; i.e., staying in the breakroom for 10 or 15 min-
utes after the break was over. He testified that unsched-
uled breaks were allowed for employees to go to the
bathroom and have a quick cigarette, which should take
about 5 minutes. Tomaskovicz further testified that some-
time earlier in October he became aware of union activi-
ty at the warehouse-he saw a man distributing union
cards outside-"it was apparent to everybody, what was
going on."
Returning to the events of early morning on October
24, Moran testified that at or about 12:45 a.m. he was
called into the office. Cetrulo, Iski, and Tomaskovicz
were present. Cetrulo told him, "There's no secret about
what's going on in this warehouse, and we're going to
put a stop to it." He told Moran that he was taking too
many breaks and spending too much time talking to em-
ployees in the aisles. Moran answered that since he was
assistant foreman he was supposed to be talking to the
employees. Cetrulo said that he was not talking about
company business so he should do it on his own time.
Moran told him that since he was doing his job there
was nothing wrong with talking to the other employees.
Cetrulo said that he was "putting a stop to everything."
Cetrulo then slid a paper over to where Moran was and
told him to sign it. Moran did not look at the paper, and
said that he would not sign it. 21 Without any further ex-
20 As Moran was, admittedly, one of Respondent's most productive se-
lectors, the following testimony of Cetrulo was brought out on cross-ex-
amination:
Q. So, in other words, if, for example, for the sake of argument, if
you felt taking eight smoke breaks as an abuse, during a shift, that it
wouldn't matter to you whether the person taking those breaks was
a marginal employee or an exceptional employee in terms of produc-
tivity?
A. Yes, it wouldn't matter to me.
Q. It wouldn't matter to you. You'd put them both in the same
category?
A. Yes.
2a Moran testified that although he did not look at this piece of paper
he knew it was a disciplinary slip--"Well he told me that I was taking
Continued
296
METRO CENTER, INC.
planation, Cetrulo said, "If you don't sign it, go punch
your card out and go home," although, according to
Moran's testimony, he was never told that if he refused
to sign the slip he would be fired, and, after refusing to
sign the slip, he was never informed that he was fired.
Moran punched out, and informed Peterson that he
would meet him outside at the 2:30 a.m. break. At that
time, Jago told him that he was also given a disciplinary
slip, and was told that if he did not sign it he would be
fired just as Moran had been. Moran said that he could
not understand how they could discharge an employee
for refusing to sign a disciplinary form.
The next day, Moran called the warehouse in order to
contact Cetrulo "to get it straightened out." He could
not get in touch with Cetrulo, but he spoke to Rich, who
told him that he did not think they could fire him for re-
fusing to sign a disciplinary form. At or about 7 p.m.
that day, Moran received a call from one of Respond-
ent's office employees who said that she had a message
from Cetrulo that Moran was fired for refusing to sign
the disciplinary form.
Cetrulo testified that, after Moran had been given a
number of warnings on October 23 about excessive
breaks and excessive talking in the aisles, he was called
up to the office. Iski and Tomaskovicz were also present.
He gave Moran a form entitled "Employee Disciplinary
Form." It contained Moran's name. The box marked
"Reprimand" (rather than "Suspended" or "Dis-
charged") was checked, and under "for the following
reasons" there were checks for "Loitering" and "Exces-
sive Breaks." Below, under "Additional Comments," was
written: "Employee has been observed taking excessive
unauthorized breaks and participating in repeated con-
versations with other selectors." 2 2 Moran read the form
and Cetrulo asked him to sign the form and Moran re-
fused. Cetrulo asked him why he was refusing since he
said that he agreed with its contents and Moran said, "I
just don't want to sign it." Cetrulo said that unless he
signed the form he would be terminated and Moran said
that he still refused to sign it. Moran put the form down
and left. Cetrulo testified that the form was a warning to
stop him from engaging in the excessive breaks and ex-
cessive conversations with other employees, and, if
Moran had signed the form, that is all it would have
been.
Tomaskovicz testified that he was not present when
Moran was in the office on that morning, although he
was present shortly thereafter when Jago was given a
written warning. At this time, Cetrulo informed Jago
that Moran had been discharged. Jago signed his discipli-
nary form and returned to work. Jago testified that he
was called up to the office, and, on his way up, he
passed Moran, on his way down, who said to him,
"Don't sign anything." He walked into the office and
Cetrulo, Iski, and Tomaskovicz were present. They gave
him an Employee Disciplinary Form-a warning for
taking excessive cigarette breaks. Cetrulo told him,
too many breaks and I was talking to too many employees ... I assumed
that was what was on the slip."
"2 The words on the bottom of the form-"Terminated, Refused to
sign disciplinary report"-were written after Moran refused to sign the
form.
"Your friend Moran did not sign it, and he is no longer
with us." Jago signed the form and returned to work.
Later that evening, during a break, Jago met Moran in
the parking lot. He asked Moran why he would not sign
the form and Moran "said something like he didn't feel it
was right or something like that." Jago told Moran that
Cetrulo told him, "Your friend is no longer with us,"
and the way Moran reacted, Jago felt, indicated that he
did not previously know that he had been fired.
Coppola testified that prior to May Respondent did
not have any standard forms for discipline to employees
and no rule requiring them to sign disciplinary notices,
and, in fact, the record contains a number of such pre-
May notices unsigned. At or about that time, Respondent
issued the Employee Disciplinary Form (the form given
to Moran), and Coppola informed his supervisors, orally,
that employees had to sign these forms or be terminat-
ed. 23 The reason for this rule was to prevent an employ-
ee from later denying that he had previously been disci-
plined. Coppola testified that once this new form was in-
stituted, and he established the rule that employees must
sign these forms, he knew of no situation where an em-
ployee refused to sign the form and remained in Re-
spondent's employ. He testified that he instituted this
new policy in response to an Employee Disciplinary
Form for M. Broad. This form was dated May 9 and
Coppola received it on the following Monday. It indicat-
ed that the offenses were poor work performance and
"visiting" (excessive talking in the aisles). None of the
boxes-"Reprimand," "Suspended," or "Discharge"-
was checked because (as Coppola later learned) Tomas-
kovicz believed that the offense involved was not serious
enough to merit any such action. On the line where the
employee was to sign the form was written, "Employee
Refused to Sign." Coppola testified that after seeing this
form, and speaking to Tomaskovicz about it, he institut-
ed the new rule that employees were required to sign
these forms. In fact, after looking through Broad's prior
work record and seeing that he had a poor work history,
he terminated Broad. Cetrulo testified that, in or about
May, shortly after Respondent began using the new Em-
ployee Disciplinary Form, Coppola told him that em-
ployes were required to sign these forms, although this
did not represent any change in policy for him as he had
always required employees to sign these forms. Tomas-
kovicz testified that sometime between January and May,
after Respondent instituted the new form, Coppola told
him that the employees had to sign these forms.
Respondent gave its night-shift employees two 15-
minute breaks in addition to a 35-minute meal break.
Moran testified that the employees who smoked would
occasionally take a 5-minute cigarette break in the bath-
room or locker room, especially between orders. Re-
spondent was aware of this practice. In fact, Cetrulo told
him on a number of occasions (the last occasion being a
25 Jago testified that prior to Moran's discharge he was not aware of
any rule that an employee who failed to sign a warning would be fired.
Although Moran was never specifically asked this question, I can assume
(from his conduct in the early morning of October 24 and later in the
day) that he would have also testified that he was not aware of the rule.
Coppola testified that the employees were not notified of this change in
policy.
297
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week before his discharge) that he did not mind "too
much" the employees taking these breaks as long as they
were doing their work. Schmidt testified that in Septem-
ber 1979 Cetrulo told him that if he wanted a cigarette
to smoke it in the bathroom, but not to make a habit of
it.
IV. DISCUSSION AND ANALYSIS
A. The 8(a)(1) Allegations
Machuca's testimony that James asked him if he signed
a paper for the Union is undenied. It is also clearly a vio-
lation of Section 8(a)(1) of the Act. I likewise find that
Mendler, James, and Tomaskovicz, by asking Cifelli if
anybody gave him a union card to sign, violated Section
8(a)(1) of the Act. Struksnes Construction Co., 165 NLRB
1062 (1967); Los Angeles New Hospital, 244 NLRB 960
(1979). For reasons to be more fully discussed, although
this statement was never specifically denied by Mendler
or Tomaskovicz, it should be noted that I found Cifelli
to be a highly credible witness and would credit his testi-
mony over that of Mendler and Tomaskovicz regardless.
The testimony of Murawski (who I found to be credible,
although somewhat hostile, at times) that James asked
him if he signed a card for the Union is undenied. Al-
though Murawski answered this question affirmatively,
and with assurance, "[T]he test is whether the interroga-
tion tends to be coercive, not whether the employee was
in fact coerced." Bill Johnson's Restaurants v. NLRB, 660
F.2d 1335 (9th Cir. 1981). This question therefore violat-
ed Section 8(a)(1) of the Act. I found Goodson to be an
extremely credible witness. He was no longer employed
by Respondent and has nothing to gain from the out-
come of this matter and appeared to be attempting to tes-
tify in an honest and truthful manner. Although I would
not totally discredit Tomaskovicz' testimony, I would
credit Goodson's testimony that Tomaskovicz asked him
if he knew of anybody who was passing out cards or
talking about starting a union. This question is a violation
of Section 8(a)(1) of the Act. United Oil Mfg. Co., 254
NLRB 1320 (1981). 1 also found Schmidt to be a credible
witness. He appeared to be testifying about the events
without additions or exaggerations. I was not impressed
with Coppola's testimony generally. It appeared to have
been partially engineered to fit the situation, and I would
credit Schmidt's testimony over that of Coppola. Al-
though Schmidt testified that Coppola appeared to be
"joking around" when he asked him if he was signing
cards in the parking lot, this interrogation violates Sec-
tion 8(a)(1) of the Act. Bill Johnson's Restaurants, supra;
Amoco Fabrics Co., 260 NLRB 366 (1982).
When Machuca and Cifelli arrived for work at or
about 7 p.m. on January 25, Coppola told them that he
heard that they wanted to make trouble (or a "problem"
according to Cifelli's testimony) for him. When they
asked what kind of trouble he said, "You know what
kind of trouble." Coppola's explanation of this statement
is too contrived to be believed. Although he testified at
length about this statement, I am still unable to fully un-
derstand it. According to the testimony of Machuca and
Cifelli (whom I credit over Coppola because I found
them to be more forthright 24 in their testimony), Cop-
pola then asked them if they signed a card for the union
(or, according to Cifelli's testimony, if anyone asked
them to sign a card for the Union). This also violates
Section 8(a)(1) of the Act, Bill Johnson's Restaurants,
supra, even though they answered the question in the
negative. Finally, according to their credited testimony,
Coppola threatened them with the loss of their jobs if
the Union came in. This also clearly violates Section
8(a)(l) of the Act. NLRB v. Gissel Packing Co., 395 U.S.
575 (1969).
Jago testified that in late October he asked Cetrulo
about the Union "coming in." Cetrulo's answer (accord-
ing to Jago's testimony) was that a union was attempting
to organize the warehouse employees, and, if it were suc-
cessful, the employees would lose their overtime and
bonus checks. Cetrulo denied this statement. Jago testi-
fied that because he and Cetrulo "always talked" he
"didn't think anything about it." For reasons more fully
discussed infra, I did not find Cetrulo to be a credible
witness. Jago, on the other hand, appeared to be testify-
ing in a frank and open manner. For example, he testified
openly that he brought up this subject with Cetrulo and
often spoke to him. Cetrulo's answer to Jago that if the
union campaign were successful the employees would
lose their overtime and bonus checks violates Section
8(a)(1) of the Act. Such a "prediction as to the precise
effects he believes unionization will have on his company
.. must be carefully phrased on the basis of objective
fact to convey an employer's belief as to demonstrably
probable consequences beyond his control." Gissel, supra
at 618. Cetrulo's statement does not satisfy this require-
ment. Jago's portrayal of this as a friendly conversation
is no defense:
[S]tatements spoken as a friend which convey a
threat of severe consequences are violative of Sec-
tion 8(a)(1), adopting the reasoning that the impact
of such statements, coming from a "friend" who is
part of management, is probably greater in view of
the authenticity and credibility of the source.2 5
The fact that Jago initiated this conversation is imma-
terial. Peninsula Association for Retarded Children &
Adults, 238 NLRB 1099 (1978).
B. The 8(a)(3) Allegations
There is no direct evidence that prior to January 29
Respondent had knowledge of the activities of Machuca
and Cifelli in soliciting its employees to sign authoriza-
tion cards for the Union and Local 469. There is substan-
tial evidence, based upon the credited testimony of Ma-
chuca, Cifelli, Murawski, Goodson, and Schmidt, supra,
that Respondent was aware that there was an organiza-
tional attempt at its warehouse during the last half of
January, but no direct evidence that Respondent knew
that Machuca and Cifelli were responsible for it, or that
24 Although there were some differences between the testimony of
Machuca and Cifelli, this is not unexpected since the events involved oc-
curred in excess of 2 years prior to the trial.
z5 Coach & Equipment Sales Corp., 228 NLRB 440 (1977).
298
METRO CENTER, INC.
they obtained all the authorization cards from the day-
shift employees. In fact, on the occasions when they
were asked by Respondent's agents about the unions,
they denied any knowledge of any such activity, Cifelli
going so far as to tell Coppola that if he heard anything
he would let him know.
Although there is no direct proof of such knowledge,
the General Counsel urges that I infer that Respondent
knew of their activities on behalf of the unions through
the "small plant doctrine." The difficulty with this argu-
ment is the mammoth size of this facility, almost 400,000
square feet, and the large number of employees em-
ployed there-in excess of 100, on both shifts, in Janu-
ary. The General Counsel urges that, rather than using
this number in determining the appropriateness of this
doctorine, I use the number of employees employed on
each shift. However, the Board has held that "the small
plant rule is based upon the size of the plant, not the size
of the department or appropriate bargaining unit." J. S.
Dillon & Sons Stores Co., 144 NLRB 1235, 1240-41
(1963); Springfield Garment Mfg. Co., 152 NLRB 1043
(1965). In Breuer Electric Mfg. Co., 184 NLRB 190
(1970), the small plant doctrine was applied where both
shifts employed 72 employees. In American Grinding &
Machine Co., 150 NLRB 1357 (1965), the Trial Examiner
inferred knowledge based on the small plant doctrine in
a physically small facility with 31 employees. The Board,
in Atlantic Metal Products, 161 NLRB 919, 920 (1966),
stated: "[T]he size of the plant-some 180 employees-
attenuates any inference of knowledge which might oth-
erwise be drawn." Without examining the other factors
necessary to infer knowledge based upon the small plant
doctrine, I reject the application of this doctrine herein
because of the physical size of this plant, together with
the large number of employees employed on both shifts.
Although I have rejected inferring knowledge by Re-
spondent of Machuca's and Cifelli's union activity based
on the small-plant doctrine, I would infer such knowl-
edge based upon the overall facts of this case. Machuca
and Cifelli engaged in their card solicitations rather
openly in the aisles of the warehouse while they were
working and in the parking lot during lunch on at least
two occasions, on January 16 for Local 469 and about a
week later for the Union. As Respondent's supervisors
spend their time on the floor of the warehouse it is not
unreasonable to assume that one of them saw Machuca
or Cifelli handing out authorization cards in the ware-
house or in the parking lot. However, there are numer-
ous other reasons for inferring knowledge on the part of
Respondent. As stated supra, I found Machuca and Ci-
felli to be highly credible witnesses, and would credit
them over Respondent's witnesses. They appeared to be
testifying in an honest and frank manner and willingly
made admissions against their interest. Although there
were occasional conflicts between the testimony of Ma-
chuca and that of Cifelli, this is to be expected as they
were testifying about events that occurred more than 2
years earlier. I therefore find that I can infer knowledge
of Machuca and Cifelli's union activities on the part of
Respondent from the following:
(a) Coppola's statement to them on January 25 that
they made "trouble" or caused a "problem" for him. The
reasonable inference from this, and the one that I make,
is that he was referring to their organizing activities.
(b) Coppola's question to Schmidt whether he had
signed a union card in the parking lot establishes that he
was aware that solicitation was taking place there, which
also establishes that he was aware that Machuca and Ci-
felli were doing the organizing.
(c) Mendler's testimony that approximately 2 weeks
prior to their discharges Machuca and Cifelli were
spending excessive time talking to the other employees in
the aisles.
(d) Tomaskovicz' testimony that 2 weeks prior to the
discharges he observed Machuca and Cifelli talking to
other employees in the aisles.
(e) The pretextual nature of the discharges.
As regards this final reason, Mendler testified that on
January 29 he needed additional selectors, and the
records bear out that substantially more selecting was
performed that day than the prior day. However, the
vital question herein is why he chose Machuca and Ci-
felli to select that day. I credit the testimony of the em-
ployees that, at the time, selectors were chosen from the
hi-low drivers by seniority, and, on the day in question,
there were hi-low drivers with less seniority that Ma-
chuca and Cifelli (especially Cifelli, who probably had
the highest seniority of all the hi-low drivers). (Although
more selecting was performed on January 29 than on
January 28, Respondent used one more hi-low driver on
January 29 than it had used on January 28.) Since No-
vember 23, 1979, Machuca had selected on only one oc-
casion for 9 hours. Since November 8, 1979, when Cifelli
concluded selecting as punishment for throwing the
carton, he had spent approximately 28 hours selecting,
and never for an entire day. Since Machuca became a se-
lector on November 24, 1979, they never both selected
on the same day. Finally (as I have credited Machuca
and Cifelli), the fact that Mendler asked them for the
keys to their hi-lows further establishes the pretextual
nature of the termination. The other employee witnesses
testified that on the few occasions when they were asked
to select they kept the keys to their hi-lows. When Cifelli
selected for a week as punishment for throwing the car-
tons he kept the key to his hi-low. When Mendler asked
them for the keys to their hi-lows, it was meant to signal
to them that it was a permanent change in the hope that
they would quit, which I find they did not do, and, in-
stead, they were discharged.
Further reinforcing the General Counsel's case here is
Respondent's purported reason for choosing Machuca
and Cifelli to select on January 29. Mendler testified that
he assigned Machuca and Cifelli to select on that day be-
cause of their poor work performance, of late, and more
particularly the items specified in the January 29 Em-
ployee Disciplinary Report. However (as I credit Ma-
chuca and Cifelli), these three items were unknown to
them and untrue except item I as to Cifelli and Cifelli
had previously been punished for this one offense by
being ordered to select for a week. On that occasion, Ci-
felli was told that he was being assigned to select as pun-
ishment for throwing the cartons. On January 29, they
were told no such thing. It is my belief that this January
299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
29 Employee Disciplinary Form was a fabrication to
conceal Respondent's real purpose in assigning them to
select-to start them on the road to termination. Mendler
testified that he had Tomaskovicz prepare it so that he
would have it in his file to show why he asked them to
select that day. This form, rather, appears to me as some-
thing Respondent prepared after the fact to conceal the
real purpose for the assignment. It, together with the
January 29 letters to Machuca and Cifelli, is an indica-
tion that Respondent "doth protest too much."
Finally, even if I were to credit Respondent's wit-
nesses, Cifelli never quit his employment. The most he
did was request time to drive Machuca home, yet he also
was discharged for reasons that Respondent never ade-
quately explained.
Therefore, considering the timing of the discharges (I
and 2 weeks after their card solicitations) and the pretex-
tual nature of the discharges, I find that the real reason
Respondent discharged Machuca and Cifelli was because
of their solicitation of authorization cards for the Union
and Local 469, and these discharges were therefore in
violation of Section 8(a)(1) and (3) of the Act. 26
I find that I cannot infer that Respondent was aware
of Moran's union or concerted activities. Unlike Ma-
chuca and Cifelli, Moran was not engaged in any activi-
ties that differentiated him from the other employees. He
signed an authorization card for the Union (although
somewhat reluctantly), but it appears that most of the
employees did likewise. On and before October 23, he
was involved in discussions with fellow employees about
the proposed sick-out the following day, but many of the
other employees were also involved in these discussions.
Moran was not a leader in either of these movements
and no statements were made to him by Respondent's
agents indicating that they thought he was. The sole pro-
tected activity he was engaged in was talking to fellow
employees about the Union and the proposed sick-out in
the aisles, the bathroom, and the locker room shortly
prior to his discharge, but there is no evidence that Re-
spondent was able to differentiate this from simply talk-
ing too much during working hours.
The Board, in Hillside Bus Corp., 262 NLRB 1254
(1982) stated:
To establish a violation of Section 8(a)(3), it is in-
cumbent on the General Counsel to adduce evi-
dence supporting his contention that an employee
was unlawfully discharged. Should a prima facie
case of unlawful discharge be shown, the burden of
persuasion shifts to the respondent to establish a
lawful reason for the discharge. However, in assess-
ing whether a prima facie case has been presented,
an administrative law judge must view the General
Counsel's evidence in isolation, apart from the re-
spondent's proffered defense. It is only after the
General Counsel's prima facie requirement has been
met that an Administrative Law Judge must consid-
er the respondent's defense.
26 The Board has often held that, where an employer asserts a false
reason for a discharge, it can properly infer that the real reason for the
discharge was unlawful. E. Mishan & Sons, 242 NLRB 1344 (1979); Shar-
tuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966).
The protected activity engaged in by Moran was his
discussions with fellow employees about the Union
during the last 5 weeks of his employment with Re-
spondent (like all the other employees) and his numerous
discussions about the proposed sick-out with fellow em-
ployees on the final night of his employment. Although
Respondent admittedly had knowledge of the Union's or-
ganizational drive at the time, there is no evidence that it
believed that Moran was involved in either of these cam-
paigns. On the evening in question, Moran was observed
by a number of Respondent's supervisors conversing
with fellow employees, including Jago. Moran testified
that he discussed the proposed sick-out with approxi-
mately 25 employees. That many discussions had to
affect his work that evening, as well as the work of his
fellow employees, which may have been a valid reason
for the proffered reprimand that evening.
A crucial issue herein is what was said to Moran when
he was handed the Employee Disciplinary Form that
evening. Even according to Moran's testimony,2 7 Ce-
trulo told him, "If you don't sign it, go punch your card
out and go home." When he continued to refuse to sign
the form, he punched his timecard in the middle of the
shift. Shortly thereafter, and still prior to the completion
of the shift, Jago informed him that he was also given an
Employee Disciplinary Form, and was told that, if he re-
fused to sign the form, he would be fired just as Moran
had been. Moran therefore knew at that time, at the
latest, that he had been discharged, yet he did not imme-
diately attempt to speak to Cetrulo about it. I find that
Cetrulo's words to Moran, although not artistically
framed, were enough to convey the message that if he
refused to sign the form he would be discharged. Be-
cause I have found that Respondent had no knowledge
of any union or concerted activity on Moran's part, and
because Jago, who was similarly involved that evening
discussing the sick-out, was not discharged when he
signed the form, as demanded by Cetrulo, I find that the
Employee Disciplinary Form directed at Moran, and the
resulting discharge, were not discriminatorily directed at
Moran due to union or other protected concerted activi-
ties. In this regard, I have credited Respondent's wit-
nesses that, at the time, Respondent had a rule that refus-
al to sign these forms was grounds for discharge.
It should be noted that this matter is not entirely free
from doubt. It is somewhat suspect to reprimand an em-
ployee who is one of its most productive employees for
engaging in excessive discussions with fellow employees.
Additionally, when Cetrulo called Moran into his office
he told him, "There's no secret about what's going on in
this warehouse and we're going to put a stop to it."
However, this is subject to a number of interpretations,
one of which is that Respondent was aware of the exces-
sive breaks and conversations of the employees and was
going to put a stop to it. Because of the lack of distin-
guishing union or protected concerted activity engaged
27 Cetrulo was an obviously incredible witness. The most glaring ex-
ample of this was his testimony that he was unaware that the Union was
organizing the warehouse employees at the time, when Coppola and To-
maskovicz testified that the Union's organizational drive was evident to
everybody at the time.
300
METRO CENTER, INC.
in by Moran, and the lack of evidence that Respondent
thought he was engaged in such activity, that is the in-
terpretation I accept.
On the basis of all the above, I find that the General
Counsel has sustained a prima facie case that Moran was
unlawfully discharged, but that Respondent has sustained
its burden under Wright Line, 251 NLRB 1083 (1980),
and this allegation is therefore dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent described in section III,
above, occurring in connection with Respondent's oper-
ations described in section I, above, have a close, inti-
miate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(l) of the Act by:
(a) Interrogating its employees regarding their mem-
bership in the Union.
(b) Interrogating its employees whether anybody solic-
ited them to execute an authorization card for the Union.
(c) Interrogating its employees whether they were
aware of the identity of individuals soliciting employees
to execute authorization cards on behalf of the Union.
(d) Threatening its employees with loss of employ-
ment, overtime, and bonus checks if the Union became
their collective-bargaining representative.
4. Respondent violated Section 8(a)(1) and (3) of the
Act by terminating the employment of employees Sergio
Machuca and Hernan Cifelli because they engaged in ac-
tivities of behalf of the Union.
5. There is insufficient evidence to establish that Re-
spondent violated Section 8(a)(1) and (3) of the Act by
discharging James Moran.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
As I have found that Respondent unlawfully terminat-
ed Sergio Machuca and Hernan Cifelli, I would normally
recommend that Respondent be ordered to reinstate
them. However, the General Counsel agrees that Re-
spondent made a valid offer of reinstatement to them on
June 4, 1981. I shall therefore solely recommend that Re-
spondent make them whole for any loss of earnings they
suffered from January 29, 1980, through June 4, 1981, as
a result of the discrimination by payment of a sum equal
to that which they would have earned during this period
absent the discrimination, with backpay and interest
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), Florida Steel Corp., 231 NLRB 651
(1977), and Isis Plumbing Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 8
The Respondent, Metro Center, Inc., Edison, New
Jersey, its officers, agents, successors, and assigns. shall:
1. Cease and desist from:
(a) Interrogating its employees regarding their mem-
bership in the Union.
(b) Interrogating its employees as to whether anybody
solicited them to execute an authorization card for the
Union.
(c) Interrogating its employees whether they were
aware of the identity of individuals soliciting employees
to execute authorization cards for the Union.
(d) Threatening its employees with loss of employ-
ment, overtime work, and bonus checks if the Union
became their collective-bargaining representative.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Make Sergio Machuca and Hernan Cifelli whole
for any loss of pay suffered as a result of the discrimina-
tion against them during the period January 29, 1980,
through June 4, 1981, in the manner set forth above in
the section entitled "The Remedy."
(b) Expunge from its files any reference to the dis-
charges of Sergio Machuca and Harnan Cifelli on Janu-
ary 29, 1980, and notify them in writing that this has
been done and that evidence of these unlawful discharges
will not be used as a basis for future personnel actions
against them.
(c) Post at its Edison, New Jersey, location copies of
the attached notice marked "Appendix."2 9 Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
28 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
29 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
301
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated com-
plaint herein be dismissed insofar as it alleges violations
of the Act not specifically found herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees regard-
ing their membership in Local No. 863, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America (the Union), or any
other labor organization.
WE WILL NOT interrogate our employees as to
whether they were aware of the identity of individ-
uals soliciting employees to execute authorization
cards for the Union or any other labor organization.
WE Wll.. NOT interrogate our employees as to
whether anybody solicitated them to execute an au-
thorization card for the Union or any other labor
organization.
WE WIL L NOT threaten our employees with loss
of employment, overtime work, and bonus checks if
the Union became their collective-bargaining repre-
sentative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL make whole Sergio Machuca and
Hernan Cifelli, with interest, for any loss of earn-
ings they may have suffered because of our dis-
criminatory conduct against them.
WE WIlI. expunge from our files any references
to the discharges of Sergio Machuca and Hernan
Cifelli on January 29, 1980, and WE WlL.. notify
them that this has been done and that evidence of
these unlawful discharges will not be used as a basis
for future personnel actions against them.
METRO CENTrER, INC.
302