Moe Warehouse & Accessory

National Labor Relations Board - Board Decisions

Jul 19, 1985

275 N.L.R.B. 1132 (N.L.R.B. 1985)

1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moe Warehouse & Accessory - and Food Process
Workers, Warehousemen & Helpers Local 228,
affiliated with . International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Help-
ers of America . Cases 20-CA-18789, 20-CA-
18902, and 20-RC-15726
19 July 1985
DECISION, ORDER, AND DIRECTION
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 22 January 1985 Administrative Law Judge
Roger B. Holmes issued the attached decision. The
General Counsel filed limited exceptions. . .
The Board has considered the decision and the
record in light of the exceptions and has decided to
affirm the judge's rulings, findings, and conclusions
and to adopt the recommended Order.'
the Regional Director shall set aside the election,
dismiss the petition, and vacate the proceedings in
Case 20-RC-15726.
DECISION
STATEMENT OF THE CASE
ROGER B HOLMES, Administrative Law Judge. The
unfair labor practice charge in Case 20-CA-18789 was
filed on March 5, 1984, by Food Process Workers, War-
ehousemen and Helpers Local 228, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen '& Helpers of America (the Union or the
Charging Party).. The General Counsel of the National
Labor Relations Board issued on April 27, 1984, a com-
plaint in Case 20-CA-18789 against Moe Warehouse &
Accessory (the Employer or the Respondent). The Gen-
eral Counsel'alleges that the Respondent had. engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act. In its answer to the complaint, the Re-
spondent denies that it had committed the alleged unfair
ORDER - labo ratices -r c
The National Labor Relations Board adopts the
recommended Order' of the administrative law
judge and orders that the Respondent, Moe Ware-
house & Accessory, Sacramento, California, its of-
ficers, agents,' successors, and assigns, shall take the
action set forth in the Order.-
DIRECTION
It is directed • that the Regional Director for
Region 20 shall, within 10 days.from the 'date of
this decision, open and count, those ballots whose
challenges thereto have been overruled by the ad-
ministrative law judge. The Regional Director shall
prepare and serve upon- the parties a revised tally
of -ballots which will, if the- Union receives a ma-
jority of the valid votes cast, provide the basis for
issuing a. certification of representative. Should the
Union not receive a majority in the revised tally,
I In the absence of exceptions by the Respondent, we adopt pro forma
the judge's recommendation that pursuant to NLRB v Gissel Packing Co.
395 U S 575 (1969). a bargaining order be issued
We do not adopt the judge's contingent recommendation that, subject
to the Union's approval and participation, a second election should be di-
rected Because the Union's motion to modify the judge's decision, which
the General Counsel has incorporated into his limited exceptions, reflects
its decision not to proceed to a second election, we find that the judge's
related recommendation is subject to a contingency which has not been
met However, we deem it appropriate that the Regional Director open
and count those ballots whose challenges thereto have been overruled
and issue a revised tally of ballots As in Kurz-Kasch, Inc, 239 NLRB
1044 (1978), we conclude that the Union is entitled to a certification of
representative should it win the election If the Union should lose the
election based on the revised tally of ballots, the election will be set aside
and the bargaining order alone will take effect
Member Dennis adopts the judge's recommendation that a Gissel bar-
gaining order be issued without the "pro forma" reference her colleagues
find necessary In addition, Member Dennis finds merit in the General
Counsel's contention that a revised tally of ballots is inappropriate be-
cause the Union specifically requested that such a tally not be issued Ac-
cordingly, Member Dennis would vacate the representation proceedings
p .
The unfair labor practice charge in Case 20-CA-18902
was filed on April 13, 1984, by the Union The General
Counsel of the Board issued on May 30, 1984, a com-
plaint in Case 20-CA-18902 against the Employer. The
General Counsel alleged that the Respondent had en-
gaged in unfair labor practices within the meaning of
Sections 8(a)(1), (3), and (5) of the Act. In its answer to
the complaint, the Respondent denies that it had commit-
ted the alleged unfair labor practices.
On May 30, 1984, the General Counsel issued an order
consolidating cases, wherein the two complaint cases
were consolidated.
The petition in Case 20-RC-15726 was filed by the
Union on, February 24, 1984. A Stipulation for Certifica-
tion Upon Consent Election was 'signed by the Employer
and by the Union, and the stipulation was approved by
the Regional Director for -Region- 20 of the Board on
March 23, 1984.. A representation election was' conduct-
ed on April l1,-1984, among the employees in the -unit
described below. -
All full-time and regular part-time warehouse, sales,
clerical employees, production and maintenance em-
ployees employed by the Employer at its Sacramen-
to, California, facility; excluding confidential em-
ployees, guards and supervisors as defined by the
Act:
The tally of ballots for the election disclosed that two
votes were cast for the Union; one vote was cast against
the Union; and six ballots were challenged. Therefore,
the six challenged ballots were sufficient in number to
affect the results of the election. Thereafter, the Union
filed three objections to the conduct of the election and
to conduct affecting the results of the election. The
Union asked that the election be set aside.
On June 26, 1984, the Regional Director for Region 20
of the Board issued a Report on Objections and Chal-
lenged Ballots, order consolidating cases, and notice of
275 NLRB No. 165
MOE WAREHOUSE & ACCESSORY
hearing wherein the issues raised by the challenged bal-
lots, the union objections to the election, and the alleged
unfair labor practices in the two complaint cases were
consolidated for hearing. •
The trial in this consolidated proceeding was held on
July 26 and August 16, 1984, at Sacramento; California.
The time for the filing of posttrial briefs was extended to
October 12, 1984. . •
FINDINGS OF FACT
1. JURISDICTION
The jurisdiction of the Board to hear and determine
the issues in this proceeding is not in question. The Em-
ployer has been, at all times material, a California corpo-
ration with an office and place of business in Sacre-
mento, California, where the ' Employer has been en-
gaged in the nonretail sale and distribution of auto parts
and accessories. In the course and conduct of its-business
operations during the 12-month period-ending December
31, 1983, the Employer purchased and received at its
Sacramento, California facility products, goods, and ma-
terials valued in excess of $50,000 directly from points
outside the State of California. It is admitted in the
pleadings that the Respondent, at all times material, has
been an employer engaged in commerce within. the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION ,
The status of the Charging Party as being a labor or-
ganization within the meaning of the Act also is not an
issue in this proceeding It is admitted in the pleadings
that the Charging Party, at all times material, has been a
labor organization within the meaning of Section 2(5) of
the Act. -
III. THE EVENTS IN DECEMBER 1983
The findings of fact throughout this decision" are based
on the credited portions of the testimony from the wit-
nesses In deciding which portions of the testimony are
credible, I have considered the demeanor of the wit-
nesses while they were testifying. In addition, I have
given consideration to such factors as whether the ver-
sion of an event related by one witness is consistent or
inconsistent- with the testimony of other, witnesses and
facts which are not in dispute.' I also considered the
probability, or the improbability, of certain versions in
light - of the record as a whole Documentary evidence
also has been considered, and certain findings of fact are
based on such documents. The testimony from each one
of the seven persons who testified at the trial in, this pro-
ceeding has been relied on in making -certain findings of
fact. However, most'of the findings'are based on the tes-
timony by six witnesses. Substantial portions of the testi-
mony given by Moe Abba at the trial in this proceeding
were' contradicted by the 'credible testimony of 'other
witnesses. If the testimony of those other 'witnesses is to
be believed,, then Abba's versions of conversations and
events cannot be accepted as being credible. Thus, it
would not be consistent to place -reliance on his accounts
1133
except to a limited extent which will be specified later
herein • -
John Palmer , who formerly was the general manager
of the Employer, and who was a -witness at the trial in
this proceeding , gave a warning letter to Don Baker for
tardiness on December 6, 1983.1 Palmer said -at the trial
that tardiness had been a continuing problem with Baker.
If the starting time was 7 a in., he said Baker came in 5
minutes after 7 a.m. If the starting time was 8 a . m., Baker
came 3 to 5 minutes late
Introduced into evidence as Respondents Exhibit 1
was a copy of the warning from Palmer-: to Baker. It
stated : "Attention Don. This is remainder again ! If you
cannot make it work at the given time-stay home.- Last
warning"!" The document is dated "2-6-83," but Palmer
said it was given on December 6, 1983 2
The warnings which were introduced into evidence as
General Counsel 's' Exhibits 6(a) through (d) originally
were attachments to General Counsel 's Exhibit 7, which
is the pre-trial affidavit of Abba given to a NLRB agent.
Abba is the owner of the Employer . After Palmer left
the witness stand on the third occasion he testified in this
proceeding , Palmer recalled , that Abba had instructed
him December 1983 to place warning notices in every-
body's personnel file The stipulation , as proposed by the
General Counsel, was accepted by the attorney for the
Respondent. (See the discussion at Tr . 374-380.) Thus, _
thereafter Palmer was not called back to the witness
stand,'and his , earlier, testimony regarding warnings and
regarding those documents had to be reevaluated in light
of his' subsequent recollection after he left - the witness
stand . Nevertheless • his testimony regarding his giving a
warning (R Exh ., 1) to Baker on December 6, 1983, still
stands as persuasive.
Palmer also said that he gave oral warnings to Baker
and Steve Miller for making mistakes in their job per-
formance . At one point prior to any union activity, Abba
recommended that Palmer get rid of the leader of the
warehouse , who was Baker. At another point after
Christmas - 1983 when "the work was falling off," but
prior to any union activity , Palmer went to Abba and
recommended - that Baker be discharged .3 However,
Baker was, not terminated by the Employer on either oc-
casion. °
'. Steve Parker, who formerly was a salesman for the
Employer , and who was a witness at the trial in this pro-
ceeding, began working as a salesman for the Employer
on December 21, 1983 . He spent about 80 percent of his
working time in the field and about 20 percent of his
working time at the Employer 's warehouse : He wrote
orders from customers ; delivered orders, put the mer-
chandise up in the stores ; , did public relations work;
drove a truck; and did "just about everything" in the
warehouse In either the first or the -second week-of his
employment with the Company , -Parker said that Abba
held a meeting with the employees. 'Parker said that-
1 Baker is one of the two alleged discriminatees in this proceeding, and
he also was a witness at the trial
This is based on the credited testimony of Palmer
Abba said this occurred "numerous times" with regard to Baker and
Miller, but I accept Palmer's testimony on the point -
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abba told the employees that everybody "would be out
the door," if things in the warehouse did not start getting
straightened out.4
Melvin Felton, who is one of the two alleged discri-
minatees in this proceeding, and who was a witness at
the trial, was hired by the-Employer on December 24,
1983• Felton performed work in the warehouse were he
pulled orders.and priced them. -
IV. THE EVENTS IN JANUARY 1984
. John Palmer received a raise in pay of $100 per month
effective on January 1, 1984.
Also in January 1984, Sharon Rhodes, who formerly
was a secretary and bookkeeper for the Employer, and
who was a witness at the trial in this proceeding, re-
cieved an $80 raise in her pay. She had been hired by the
Employer in June 1982. Rhodes believed that all of the
employees of the Employer received -a wage increase in
January 1984. She said that Abba stated at the time that
the employees would not be getting a raise for awhile.5
Stanley Tyrone Davenport, a warehousemen, left his
active employment with the Employer on January 8,
1984, for 6 months training in the military reserves.6
V. THE EVENTS IN FEBRUARY 1984
Sometime' in February 1984, Palmer asked Abba for a
second raise in pay because Palmer was going'to lose his
Jeep due to his inability to make the payments. Abba of-
fered Palmer another $100-per-month raise in pay in ex-
change for Palmer's making his pickup truck available to
Abba during -the days that Palmer worked. Palmer de-
clined the offer because in his view Abba had not lived
up to his agreement with Palmer to pay for the gasoline
used,- maintenance, and tires for the pickup truck.?
Introduced into evidence as General Counsel's Exhibit
11 was a copy of a written warning dated February 1,
1984, to Miller from Palmer.8 The warning was with
regard-to Miller's refusal to wash the company van. The
"reason given," as stated on the document, was: "It was
too cold, I will catch the flu." The "conditions," as
stated. on the document, were "weather outside was
mild."
Rhodes said that she had typed that document for
Palmer who signed it. Rhodes then placed General
Counsel's Exhibit 11 in Miller's personnel file. While she
was-on the witness stand, Rhodes also examined three
other written warnings to Miller, but she said she had
not typed those documents; previously had never seen
the. documents; and she had not seen those documents in
Miller's personnel file. Those documents were General
Counsel's Exhibits 8, 9, and 10.9
4 The foregoing is based on the credited testimony of Parker
5 The foregoing is based on the credited testimony of Rhodes She
worked for the-Employer until July 10, 1984,-when she voluntarily quit
to accept a higher paying job
6 Davenport did not testify This is based on the testimony of Palmer
7 The foregoing is based on, the credited testimony of Palmer
8 The Employer's termination of Miller is not alleged by the General
Counsel to be an unfair labor practice The allegation with regard to
Miller-was deleted by'the General Counsel at the trial.
9 The foregoing is based on the credited testimony of Rhodes
Introduced into evidence as Respondent's Exhibit 4
was a copy of a typed. warning dated February 9, 1984,
from Abba to Baker. The document states it is regarding:
"very poor work on automotive reset a , Marysville
Longs."
With regard to three written warnings from Abba to
Baker, Rhodes stated that she had not typed those docu-
ments ; previously had never seen those, documents; and
she had not seen those documents in Baker's personnel
file. Those' documents' were Respondent's Exhibits 4, 5,
and 6.10 However, she acknowledged at the trial that the
employees of the Employer did not have just one file.
There were ,five files kept by the Company on its em-
ployees. One. file was for personnel records and also con-
tained notations about company merchandise purchased
by the employees;, another file contained timecards; an-
other file was maihtained for compensation cards; an-
other file for ;resumes, and finally another for employ-
ment applications. Although Rhodes had the responsibil-
ity for keeping the employees' personnel records file, and
although I credit her testimony regarding the documents
mentioned above, I find in these circumstances that her
testimony does not rule out the documents being placed
by Abba in one of the several files maintained by the
Company with regard to its employees. -
Until Baker-.was shown Respondent's Exhibit 4 ,on the
witness stand, he had never seen that document.' 1 Baker
said there was a problem at the Longs Drug Store in
Marysville around the date on Respondent's Exhibit 4,
which date was February 9, 1984. Present at the Longs
store that day were: Baker, Parker, and a new employees
named Eric Rust. They were a day or two late for their
apointment at the Longs Drug Store. They had gone to
the store to reset the merchandise. Baker did not recall
at the trial the name of the store manager, but he said
that the store manager came over "and jumped down my
throat." The store manager told Baker that "We had a
lot of credits in the back that had been sitting in there
-for months." 12
Next, the store manager pointed out that there were
differences in the price of merchandise on the shelf.
Some -items were 10 cents to 50 cents higher, than
others. 13
10 I credit Rhodes' testimony in this regard, rather than Abba's version
that they were typed by Rhodes
I I The following is based on the credited testimony of Baker
12 At the trial, Baker explained that a credit in that context meant an
overstock of merchandise, in other words, too much merchandise to be
placed on the store shelves, so the remaining merchandise was placed in
the back of the store for future use Baker said the policy was to try to
bring the "credits" back to the warehouse, but a lack of time at the
Longs Drug Store in Marysville caused the employees to 'leave the
"credits" at the store However, in contrast to the Marysville store,
Baker was of the opinion that there was enough time at the Grass Valley
store of Longs to perform the required service work
13 At the trial, Baker said all the merchandise for that store was pre-
marked at the warehouse before the employees got to the store -Some-
times the employees at the warehouse did not locate the price in the,cata-
logue, and they would ask Abba who told them the price "just off the
top of his head " The items in question were ones that the Respondent
normally stocked at that store When employees brought in new items
without first contacting the store department head first, the store manag-
ers also became upset regarding that
MOE WAREHOUSE & ACCESSORY '
Introduced into evidence as Respondent's Exhibit 5-
was a copy of a typed warning dated February 14, 1984,
from Abba to Baker. The document states it is regarding:
"Called in on Monday 2-6-84 saying he had to take par-
ents to Sacramento airport and on Monday 2-13-84
called in saying he had to take-family to Los Angeles."
Because of his grandfather's illness and hospitalization,
Baker took his parents to the San Francisco International
Airport on Monday, February 6, 1984.14 Baker tele-
phoned Abba that morning before working hours, and he
advised Abba of the situation Baker was absent from
work that day, and he was not paid for that day. Baker
returned to work on Tuesday, February 7, 1984.
A few days prior to Friday, February 10, 1984, Baker
asked Abba if he could have that day off because Baker
was to be in a wedding. Abba said no because they were
too busy. Abba explained to Baker that there were a lot
of things going on, and there were a lot of new setups.
Abba asked Baker if he could change his plans. Baker
agreed to do so, and Abba gave Baker permission to be
absent on Monday, February 13, 1984. Baker said he was
in Los Angeles that day, and that he was not paid for
that day. Baker returned to work for the Employer' on
Tuesday, February 14, 1984.
Prior to his contacting the Union, Palmer said that
there had been conversations among employees during
lunchtime about the, need for representation. Palmer tes-
tified: "I made the decision to contact the union when
Miss Rhodes asked me if I could contact the union." 15
Palmer looked in the telephone directory, and he
found the name and the telephone number of the Charg-
ing Party.16 On February 15, 1984, Palmer telephoned
the Charging Party Union, and he left a message with a
secretary there. John Christensen, who is a business
agent of the Charging Party Union, and who was a wit-
ness at the trial in this proceeding, called Palmer back
the same day. Christensen told Palmer that he would
come to the warehouse and talk to the employees. A
meeting was held that morning around 9:30 or 10 a.m.
Palmer called the employees into the lunchroom, and he
introduced 'Christensen to the -employees. Palmer testi-
fied. "I just told them that Mr. Christensen 'from the
Local 228 was there and would like to talk to everybody
and everybody came in." All of the Employer's employ-
ees, except Parker who was not present at the ware-
house, attended the meeting. Palmer also attended the
meeting. -He testified: "I wanted to hear what was going
on. But I was at the doorway of the lunchroom meeting'
room, and all the other employees were inside the room
with-listening to what Mr. Christensen had to say." No
employee objected, either during the meeting or after-
wards, about Palmer's being present. The meeting lasted
for at least 1 hour, and the employees were paid for the
time spent in the meeting. Abba was not at the ware-
house at the time. 17 - '
14 The following is based on the credited testimony of Baker, rather
than Abba's version
IS Rhodes corroborated Palmer in this respect
16 Prior to his employment with the Employer, Palmer had been a
member of a labor organization At the time of the trial, Palmer was a
member of Teamsters Local 150
17 The foregoing is based on the credited testimony of Palmer
1135
Christensen said that he asked those persons who were
present to sign union authorization cards. Christensen
testified: "I told them by signing the cards that they
were showing a desire to become a bargaining unit under
the auspices of Local 228." Christensen further testified.
"I told them that their employer would be contacted by
letter, and their wishes would be made known in a letter
form to the-employer, that they, wished to establish a
bargaining unit. Christensen also testified: "I told them
that in the event that' their employer decided or did not
want to have a bargaining unit, that we would file a peti-
tion with the National Labor [Relations] Board and the
cards would be submitted to the Board:"18 '
Introduced into evidence as General Counsel's Exhib-
its 3(a) through (g) were seven union authorization cards
bearing the signatures of- Imrit Nagra, Rhodes, Palmer,
Miller, Felton, Baker, and Parker. All of the union au-
thorization cards, except Parker's, were signed in Chris-
tensen 's presence at the meeting on February 15, 1984,
and handed to Christensen at the meeting. The next day
on February 16, 1984, Palmer gave a union authorization
card and union pamphlets to -Parker, who signed the
card and gave the card to Palmer. Palmer then gave- the
card to Christensen.
The words printed by machine on all seven of the
union authorization 'cards introduced into evidence in
this proceeding are the same. Each card has a heading
which reads: "AUTHORIZATION FOR REPRESEN-
TATION." There are spaces for the Company's name
and address;,the employees name and address, the date;
the employee' s social security number; telephone
number; kind of work; shift; present wage rate; and the
employee's signature . The card also states that the em-
ployee. "authorizes as my exclusive bargaining agent,
Teamsters Local 228, affiliated with the International •
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America to represent me in negotiations
for better wages, hours and working conditions." The
cards also state: "THIS AUTHORIZATION CONFI-
DENTIAL."
.
The parties stipulated that about February 15, 1984,
the complete work force at the Employer's facility con-
sisted of the following employees: Melvin Felton, Sharon
Rhodes, Imrit Nagra, Donald Baker, Stephen Miller, and
Steve Parker.
Between the meeting on February 15, 1984, and the
representation election held on April 11, 1984, Christen-
sen said he had additional meetings with employees of
the Employer.
Introduced into evidence as General Counsel's Exhibit
4 was a copy of a letter'dated February 21, 1984, from
the Union to. the Employer. Christensen said he mailed a
copy of that letter to the Employer. In part , the letter
states: - -
The Food Process. Workers, Warehousemen and
Helpers Union Local. 228 of Sacramento, California
represents a majority of hourly employees at MOE
Warehouse & Accessory We are willing to demon-
18 The foregoing is based on the credited testimony of Christensen
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strate this majority through a mutually agreeable
third party by means of a signature card authoriza-
tion check.
As we do represent a majority of your employ-
ees, we would like to immediately enter into negoti-
ations to conclude a labor agreement which would
be mutually beneficial. We understand that you are
prepared to bargain in good faith, we also wish to
do so. As reasonable persons, we're certain that we-
could settle such a contract amicably
We sincerely mean to do our part in representing
your employees in an honest and open.fashion. We
urge you to show your good faith by spending any
monies which you might pay to an outside consult-
ant to your employees in the terms of wages and
other benefits. To do so, would be the first step in
what we can see being a long and mutually benefi-,
vial relationship. Contrary to what you may have
been led to believe, good Company people can also
be good Union people.
On February 22, -1984, at approximately 11:15 am,
Palmer was at the warehouse when he observed Abba
come out of the lunchroom and sign for' a letter. t 9
Palmer was seated at his desk when Abba asked him if
he knew anything about the letter which Abba had in his
hand. Palmer replied that he did not know the contents
of the letter, and he could not say whether or not, he
knew anything about the' letter. Abba handed the letter
to him, and Abba left to talk with a salesman. At the
trial, -Palmer identified General 'Counsel's Exhibit 4 as
being that letter. Palmer read the letter and made copies
of it. Then he placed the letter on Rhodes' desk.
About 15 minutes later, Abba asked Palmer if he had
called the Union. Palmer said yes, he had done so. Ac-
cording to Palmer, Abba in a raised voice asked Palmer
why he had done so. Palmer replied that he had called
the Union because of promises Abba had made but not
fulfilled, the lack of heat in the warehouse and the work-
ing conditions Abba told Palmer he was a "damn liar,"
and Abba said he no longer had any trust in Palmer, and
that'Palmer had violated his rights with Abba. At that
point, Rhodes said over the loudspeaker that Palmer had
a telephone call.
Palmer answered the telephone at' his desk, and he
learned that Christensn was on the line. Abba was sitting
in a chair at Palmer's desk during the telephone conver-
sation between Palmer and ' Christensen . Christensen in-
formed Palmer that a letter had been mailed to Abba and
that Abba should be receiving the letter. Palmer told
Christensen that Abba had received the letter, and that
he and Abba were discussing it. Palmer then asked Abba
if he would like to' talk to Christensen, and Abba said
yes Abba went into the lunchroom and picked up an-
other telephone extension . Palmer remained on the tele-
phone line at his desk. Palmer heard Christensen identify
himself to Abba as being with the Charging Party Union;
that Christensen had signed pledge cards by the employ-
19 The following is based on the credited testimony of Palmer Rhodes
overheard only parts of the conversation between Palmer and Abba that
day
ees to represent them; and asked if Abba would be will-
ing to talk with him According to Palmer, Abba asked
Christensen in a raised voice who the people were, and
what were their names. Christensen told Abba that he
had a majority of the people' who signed their pledge
cards, but he.would not reveal their names.
After the telephone call, Abba told Palmer. "I want
everybody to go home, take the rest of the day off."
Then Abba rescinded that instruction, and Abba told
Palmer take the rest of the day off, go home, and Abba
would pay Palmer for that day
At the trial, Palmer said that Abba twice asked him
who had signed the union. cards, but at' first Palmer did
not tell Abba who had signed The second time Palmer
was asked on February 22, 1984, Palmer told Abba that
everybody had signed union cards.
Palmer also. said at the trial that previously he had
never been sent home in the-middle of the workday.
Rhodes said that Abba told her that day that she was
to come in the office early the following Monday "and
to write out John's [Palmer's] final check."20
On February 22, 1984, Felton was working in the Em-
ployer's warehouse when Abba called him into the
lunchroom. No one else was present. Abba asked Felton
if he had signed a union card. Felton replied affirmative-
ly that he had done'so along with everyone else there
who had desired to sign a card. Felton testified- "[H)e
said that if I played ball with him , that he was planning
on opening another warehouse and that I would be con-
,sidered to be available to manage it for him. "2 i _
Christensen said he did not receive any written reply
from the employer. About February 24, 1984, Christen-
sen telephoned Abba and asked if Abba had received the
Union's letter. Abba said that he had. Christensen asked
if Abba was in a position of making any kind of decision
at that point. Abba replied that he was not at liberty to
talk about the subject and that his lawyer would be get-
ting in contact with Christensen However, Christensen
said he received no further response, so Christensen con-
tacted the Union's attorney with regard to filing the rep-
resentation petition.22 As indicated earlier in this deci-
sion, the Union did file a petition with the NLRB in
Case 20-RC-15726 on February. 24, 1984, seeking to rep-
resent the employees of the Employer.
On February 27, 1984, Palmer and Abba had a conver-
sation at the warehouse about 10 minutes after Palmer
began working that- morning.23 Abba - came over to
Palmer's desk and told Palmer that Abba was going to
let Palmer go. Palmer asked why. Abba replied, "Lack
of work." Palmer told Abba that he was in violation of
Federal law; that they had filed with the Union for rep-
resentation; and that they were protected by the NLRB.
Abba replied that if it cost him, $5000, Abba was going
to get rid of Palmer. Palmer also testified: "He said that
he would never have the union in there."
20 The foregoing paragraph is based on the credited testimony of
Rhodes
21 The foregoing is based on the credited testimony of Felton
22 The foregoing is based on the credited testimony of Christensen
23 The following is based on the credited testimony of Palmer Rhodes
overheard part of their conversation ,
MOE WAREHOUSE & ACCESSORY
At the trial , Palmer said that the workload was gain-
ing and getting heavier at the time. of his termination. He
explained that previously he had asked Abba for more
personnel, and Abba had said that he was going to get
them Also, Palmer said the employer had two new store
openings that month .24
Later that afternoon, Abba spoke with Rhodes in the
office. No one else was present Abba told Rhodes that
he' wanted to know what was going on; that the employ-
ees had signed the cards; that he did not want to join the
Union, that -he did not want anybody working for him
that wanted the Union in' there, and Abba would close
the doors before he would go Union.25
About February 27, 1984, after the employees met at
the union hall, Felton had another conversation with
Abba. During that conversation, Abba told Felton that
Abba was against the Union; that Abba had talked with
his father about unions; "and that his father said that the
best way to deal with them was-to fire all of the people
that were involved."26
VI. THE EVENTS IN MARCH 1984
On March 5, 1984, Baker and Abba had a conversation
in the lunchroom at the Employer's warehouse.27 The
two persons talked about business matters going on at
the warehouse, and Abba told -Baker that Abba would
have "to either cut crews or close the warehouse" if -a
union came in. Baker also testified: "He told me I would
have to be the one that would have to go talk to the rest
of the crew members to let them know the problems that
a union would cause in the business , and what the-
things that would happen in case of." Baker said that
Abba further told him to tell the other employees that, in
order to keep their jobs, they "would have to vote
against the union."
The same day Baker also spoke with employee Miller.
Baker testified "In my words, I just told Steve [Miller]
that Mr. Abba was out to get us, and that we'd better
watch our backs, you know, because a lot of things are
about to come down." - -
Rhodes recalled an occasion subsequent to the termi-
nation of Palmer when she and Parker were talking
about the Union in the office. Rhodes said that Abba
came in and mentioned something about the Union, but
at first she.could not recall at the trial exactly what was
said Subsequently, at the trial she said that Abba told
them that he would close down if the- Union came in the
, --warehouse.211
About a week or a week and a half after Palmer was
fired, Parker had a conversation with Abba while in
Abba's - car and driving towards Auburn, California 29
24 Palmer worked for the Employer from June 1982 until February 27,
1984 Palmer held the position of general manager
25 The foregoing is based on the credited testimony of Rhodes Abba's
denial that he'told any employee that Abba would shut down the busi-
ness if the Union came in is not credited
26 The foregoing is based on the credited testimony of Felton
27 The following is based on the credited testimony of Baker
26 The foregoing is based on-the credited testimony of Rhodes Park-
er's testimony ]ends support to her account
21 The following is based on the credited testimony of Parker, rather
than Abba 's different version
1137
Parker told Abba that Parker- was trying to play neutral
concerning the Union Parker said in past years he had
had a hard time keeping a job, so he was playing neutral
with the whole thing. According to Parker, Abba re-
plied: "Just leave things be and everything will be al-
right." On that same date, Parker `received a raise of
$100 a month, which also included a change in some of
his gasoline allowance. That was Parker's second raise
since he had begun working for the Employer on De-
cember 21, 1983 He had received his first raise in either
January or February 1984.
In March 1984, Abba informed Rhodes that she was
receiving a raise in her pay, and that Abba would get
her medical and dental benefits at the end of April or the
beginning of May. Previously, Rhodes had not received
such benefits from the employer 30 -
On the evening of March 14, 1984, Felton received his
paycheck 31 He discovered that the 15-1/2 hours of
overtime shown on his paycheck had been paid at the
rate of $2.25 an hour, which was one-half of Felton's
regular hourly pay rate Felton approached Abba about
the matter, but Abba said he was busy, and they could
talk about it the next morning
'On March 15, 1984, Felton reported to work at 7 a.m.,
and he loaded the trucks which were due to go out that
day. Afterwards, about 9 a.m. Felton asked Abba in the
office about the shortage in his paycheck. Abba told him
to talk to Rhodes, who also was present. Felton replied
that Rhodes only did what Abba told her to do, and that
he wanted his paycheck corrected. Felton testified. "And
we argued a little bit more. Finally, he turned to Sharon
[Rhodes] and told her to correct my check and tell me
to go home." Abba then left the office. As a result,
Rhodes corrected the paycheck and gave it to Felton,
who looked at it and felt it was all right. Then Felton
left. The amount of the paycheck also covered Felton's
wages for the day, March 15, 1984. Felton was not given
any other document or piece of paper by the employer
other than this paycheck
,. Since that time, Felton has not been back to the Em-
ployer's warehouse. Felton gave his explanation at the
trial as. "Well, he never called me back to come back to
work I assumed I was fired." Felton said that there was
definitely more-work to be done in.the warehouse on
March 15, 1984. Felton said at the trial that previously
Abba had never sent him home from work Felton also
said that previously Abba had never complained to him
about Felton's work, and that Felton had not received
any verbal or written warnings from the Employer.
Introduced into evidence as Respondent's Exhibit 3
was a copy of the declaration of Sharon Rhodes. (See
Tr 233-235.) The statement was given by Rhodes to the
attorney for the Respondent at the attorney's office The
document is dated June 14, 1984, and it was signed
before a notary public. With regard to the conversation
between Abba and Felton on March 15, 1984, Rhodes
stated in the declaration:
30 The foregoing is based on the credited testimony of Rhodes
31 The following is based on the credited testimony of Felton, rather
Abba's version
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about March 15, 1984, I witnessed an argu-
ment between Moe Abba and Melvin -Felton at my
place of work. The argument was-quite heated and
it had to do with overtime which Mr. Felton felt
was coming to him and Mr. Abba felt was not Spe-
cifically. it had to do with changing over from an
hourly employee to a salary employee. No mention
of the union was made at .this meeting and -Mr.
Felton never came back to work. This was a very
heated meeting and was initiated by Mr. Felton.
At the trial, Rhodes denied hearing Felton on March
15, 1984, curse Abba; call him certain specific vulgar or
obscene names; or make any physical threats against
Abba. In her opinion, they were yelling at each other
and standing about an inch apart. She said Abba also did
not use any curse words in that conversation.
The findings of fact regarding the foregoing event are
based on the accounts of Felton and Rhodes based on
the credibility factors mentioned earlier in this decision.
In contrast, Abba related a different version wherein
Felton repeatedly called Abba certain vulgar and ob-
scene names and treated Abba in an offensive, insulting,
and threatening manner. As indicated above, I have
credited the accounts of Felton and Rhodes. .
Abba held a meeting with the employees in March
1984 at the Employer's warehouse. Present were: Abba,
Rhodes, Baker, Miller, Felton, and Parker. 'In the opin-
ion of Parker, Abba's comments at the meeting were not
directed at either Parker or- Felton because they were
new employees. Parker testified: "[H]e said. that if things
didn't.-get straightened out, that was it, which wasn't the
first time he's done that." Parker stated that Abba did
not specifically say what the problems were. The forego-
ing is based on the testimony of Parker. Abba gave a sig-
nificantly different version of the meeting wherein, in
part, he said he specifically gave his last warnings to
Baker and Miller, and told them that, if they made a
single mistake, it was going to be over for them because
his patience had run' out. In Abba's version, Baker and
Miller made their next mistake on March 15, 1984, which
is memorialized in Respondent's Exhibit 6. That incident
will be discussed later. He was asked at the trial why he
waited 6 days from March 15 to 21, 1984, to terminate
Baker and Miller. Abba unconvincingly stated that it was
a very difficult decision for him to make. Based on the
credibility factors stated earlier in this decision, I do not
credit Abba's version.
Introduced into evidence as Respondent's Exhibit 6
was a copy of a typed warning dated March 15, 1984,
from Abba to Baker. The document states that-it is re-
garding "Shipped a good size order •to Rainbow 'Super-
market with Longs Drug ticket Merchandise Manager,
Henry, called very upset."
Baker acknowledged at -the trial that there had been an
error' made on March 15, 1984, in taking merchandise,
which had been marked with a Longs Drug-Store price
sticker, to the Rainbow Supermarket.32 Baker explained
that the error. occurred -at the warehouse. Baker was
training two new employees-at the time. In addition, he
had six different orders being filled- in the warehouse at
the same time. Baker gave the smallest order to- one of
the new employees named Jay Baker told. Jay to fill the
order, but not to price mark it because the, Employer did
not mark the prices on merchandise for that particular
store. Jay began filling the order. Baker looked at, the
order a couple of times and found some merchandise
with Longs Drug Store price 'stickers. Immediately,
Baker told Jay to pull those price tags off the merchan-
dise and to check it over before he put the order in ship-
ping and receiving. .
, Baker , Miller, and an employee named Eric delivered
the sealed order to the Rainbow Supermarket. When
they arrived at the grocery store, they. had the shipping
and receiving clerk check the order and the manager,
who was named Henry, come over to talk with them.
While the order was being checked by the shipping and
receiving clerk at the Rainbow Supermarket, Baker no-
ticed that there was an item with a Longs Drug Store
price sticker on it. When Baker looked in the box of
merchandise, he found still more such items with Longs
Drug Store price stickers. -Baker became upset, at this,
and he said Store Manager Henry did also
The next day, Abba spoke to Baker, Miller, and Nagra
in the Employer's office. Abba directed his comments to
Baker and , complained about the sloppiness in their work.
Baker, explained to Abba about the new employee and
what had happened. Abba told Baker that they had to
tighten this up,_ and that they could not have this kind of
thing around there.
At the trial , Baker said that similar errors had oc-
curred in the, past, but not -often Baker explained that
there were about 10 different price markers used at the
Employer's warehouse.- Four such price markers were
for Longs Drug Store, while other price markers were
for other stores or were left blank.
Parker did not specify the times, the places, or identify
by name with whom he spoke, but- Parker said at- the
trial , that store owners or store managers discussed with
him poor service by the Employer. 3 a -He said this oc-
curred: "Just about everytime I walked into a store
unless I was there the day before." Parker said they
knew the Employer was "trying to do too much with
too little people." Parker was of the opinion that the
Employer did not have, any, problems "with the delivery
when it finally got there," but the main problem was the
frequency 'of -the* deliveries. Parker said that he and
Palmer scheduled the deliveries, but Abba "changed
them.around." Parker said that the store management
people threatened to kick the Respondent out of the
store, but they never voiced to Parker any objections or
any, problems with any specific employees of the Em-
ployer. However, Parker said at the trial that he had
problems with Miller and Baker, "when the cooperation
wasn 't the way I thought it was." Parker later testified:
"Don Baker's good, he knows what he's doing, knew
what he was doing. Whenever a problem [arose], he
32 The following is based on the credited testimony of Baker 33 The following is based on the credited testimony of Parker
MOE WAREHOUSE & ACCESSORY'
fixed it. Steve [Miller] on the other hand was young,
didn't know what he was doing, was following Don's
[Baker's] lead If Don [Baker] had.a bad attitude, Steve
[Miller] had a bad attitude." Parker said he did not have
to fix Baker's work, but he always had to redo Miller's
work.
Around March 19 or 20, 1984, Parker and Abba had a
conversation regarding Miller and Baker while Parker
and Abba were walking outside the Employer's facili-
ty.34 Parker testified: "[T]he way I understood it was
that he was going to let them go because something had
really gone wrong and he's just about had it with them."
At the trial, Parker said he knew that "something had
gone wrong," but at first he did not remember what it
was. Later, Parker said it involved a setup of merchan-
dise at a Long Drug Store, which was not done the way
Abba had wanted it done. Parker said he did not remem `
ber telling Abba that he could fire Miller and Baker. In
the opinion of Parker, Baker was a good employee, and
in such a situation, Parker believed that he would never
have told Abba'that Abba should fire Baker. Parker said
that Abba did complain to him every time Abba returned
from looking at a setup of merchandise that Miller and
Baker had done. Parker suggested to Abba that he send
Parker and Baker out to do the setups and leave Miller
in the warehouse.
Don Baker worked for the Employer from June 1983
to March 21, 1984. During the period of time between
February 27, 1984, when Palmer was terminated, and
March 21, 1984, when Baker and Miller were terminated,
the Respondent hired three new employees to work in
the warehouse Baker trained the new employees in some
areas, and Miller trained them in some other areas 35
On March 21, 1984, Abba called Baker and Miller into
his -office 36 According to Baker, Abba .told them that
they had been having a lot of problems in the 'stores
where they had been working. Abba told them that store
managers had been complaining about their work. Abba
also told them that their workload, their ability, and their
attitude about their work were falling down. Abba also
said that they did not seem to take pride in their work at
all Baker then asked ' Abba how could he possibly let
two guys go that practically had built the Company for
Abba to the point they had reached at that time. Abba
said ' he was going to have to let them go, and he told
them that if they needed a job after 4 to 5 months, to
come back and see him. At the trial, Baker said he had
never been back to the Employer's warehouse since that
occasion.
Baker serviced the Longs Drug Store at Auburn quite
a few times. In the opinion of Baker, the store managers
at the store were pleased with his work. Baker said that
Abba never warned him about the work Baker had done
at the Auburn store of Longs.
Once or twice, Baker worked at the Longs Drug
Store in Grass Valley. He set up the store once, and he
serviced it once. Store managers at Grass Valley did not
34 The following is based on the credited testimony of Parker , rather
than Abba's version
35 The foregoing is based on the testimony of Baker
36 The following is based on the credited testimony of Baker, rather
than the testimony of Abba and the declaration of Rhodes
1139
complain to Baker regarding his setups. He said the main
complaint-was about leaving credits in the back of the
store. In the opinion of Baker, there was enough time for
him to do the service work that was required at the
Grass Valley store. His normal working hours for the.
Employer were from 8 a.m. to 5 p in. Baker said that
Abba never .warned him about the work which Baker
had done at the Grass Valley store of Longs
VII. THE EVENTS IN APRIL 1984
In April 1984, prior to the representation election held
on April 11, 1984, Parker resigned his position as a sales-
man for the Respondent because Parker got another job
at a higher rate of pay.37 He said there were no hard
feelings at the time his employment with the Employer
ended. He said he received no warnings from the Em-
ployer during the approximately 4 months that he
worked there. Parker had been responsible for servicing
the Longs Drug Store in Auburn. Parker said the Re-
spondent did not lose the account at that store while he
was working for the employer. Parker testified: "Fact is
when I was working there, they were happy as pie, they
had no problems." However, after Parker had quit his
employment with the Employer, he was told that the
Longs Drug Store at Auburn had canceled their account
with the Employer.
On April 10, 1984, there was a conversation that
morning in the office between Abba and Rhodes.38 Ac-
cording to Rhodes, Abba told-her that he was talking to
her as a friend; that he was not threatening her; that he
did not want anybody working for him that wanted a
union in there; and that Abba would close down before
he would -go union.
VIII . CONCLUSIONS REGARDING THE ALLEGED
UNFAIR LABOR PRACTICES
Based on the credited testimony set forth in the find-
ings of fact, I conclude from those findings that the Gen-
eral Counsel has presented evidence which establishes
that the Respondent has' engaged in certain unfair labor
practices within the meaning of Section 8(a)(1) of the
Act. At the trial, the allegations in paragraph 6(d) and
paragraph 7 of the General Counsel's complaint in Case
20-CA-18789 were deleted, and the second paragraph
6(g) was redesignated as paragraph 6(h). All of the
8(a)(1) allegations in both complaints are attributed to
Abba as being the Respondent's agent who committed
the alleged unfair labor practices.
In paragraph 6(a) of the General Counsel's complaint
in Case 20-CA-18789, it is alleged: "On or about Febru-
ary 22, 1984, interrogated employees regarding their
union activities." In paragraph 6(b) of that same com-
plaint, it is alleged: "On or about February 22, 1984,
made promises of benefit to employees in exchange-for
the employees' abandonment of the union."
As noted above, all of the allegations pertain to Abba.
In considering all of the independent 8(a)(1) allegations, I
have considered the fact that the person involved is the
37 The following is based on the credited testimony of Parker
36 The following is based on the credited testimony of Rhodes
1140 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
owner of the Respondent, and not a low-level supervi-
sor. Also, I have considered the fact throughout this sec-
tion that the number of the Respondent's employees at
the times relevant herein was relatively small ,
With regard to the allegations in paragraphs 6(a) and
(b) quoted above, I conclude that the conversation be-
tween Abba and Felton revealed that Abba asked Felton
if he had signed a union card, and in the same conversa-
tion Abba promised Felton that he would be considered
for a management position at a warehouse the Employer
was planning to open. In its decision in Rossmore House,
269 NLRB 1176 (1984), the Board held that the basic
test for evaluation for whether interrogations violate the
Act is: "[W]hether under all of the circumstances the in-
terrogation reasonably tends to restrain, coerce, or inter-
fere with rights guaranteed by the Act." The Board also
pointed out at 1178 footnote. 20: "Some factors which,
may be considered in analyzing alleged interrogations
are: (1) the background; (2) the nature of the information
sought; (3) the identity of the questioner; and (4) the
place and method of interrogation. See Bourne v. NLRB,
332 F.2d 47 (2d Cir. 1964). These and other relevant fac-
tors are not to be mechanically applied in,•each case.
Rather, they represent some areas of inquiry that may be
considered in applying.the Blue Flash test of whether
under all the circumstances the interrogation reasonably
tends to restrain, coerce, or interfere with rights guaran-
teed by the Act."
Under the circumstances presented here, the question-
ing of Felton at work. is by the owner,of the Respond-
ent, and it occurs in the context of a promise of consider-
ation for a management position. The conversation took
place in the background of the then-recent signing of
union authorization cards by employees. The conversa-
tion is not an isolated occurence in the sense that other
unfair labor practices were to occur in the following
weeks. In view of the foregoing, I find that the Respond-
ent has violated Section 8(a)(1) of the,Act as alleged in
paragraphs 6(a) and (b).
In paragraph 6(c) of the -General Counsel's complaint
in Case 20-CA-18789, it is alleged: On or about March
5, 1984, threatened employees with reprisals and dis-
charge if they continued their support of the union." I
conclude the conversation in the lunchroom at the ware-
house on March 5, 1984, between Abba and Baker re-
vealed that Abba told Baker that Abba would reduce the
crews or--close the warehouse if the Union came in; and
that, in order for the employees to keep their jobs, the
employees would have to vote against the Union. I con-
clude that such threats by the Respondent to an employ-
ee in these circumstances violate Section 8(a)(1) of the
Act. National Apartment Leasing Co., 263 NLRB - 15
(1982); Crown Cork & Seal Co., 255 NLRB 14 (1981).
In paragraph 6(e) of the General -Counsel's complaint
in-Case•20-CA-18789, it_is alleged:."On or about-March
9, 1984, 'threatened to discharge employees if they con-
tinued organizing -for the union ." I conclude 'that the evi-
dence disclosed that in a conversation among Abba,
Rhodes, and Parker in March 1984-Abba told them that
he would close down if the Union came in the ware-
house I conclude that such a threat violated Section
8(a)(1) of the Act in these circumstances as described
previously. -
In paragraph 6(f) of the General Counsel's complaint
in Case 20-CA-18789, it is alleged: "On or about March
9, 1984, told employees it was futile to select a union be-
cause Respondent would not go union." I conclude this
allegation lacks merit and should be dismissed because
the evidence does not show that such a statement was
made-on or about the date indicated.
In paragraph 6(g) of the General Counsel's complaint
in Case 20-CA-18789,-it is alleged: "On or about March
21, 1984, conditioned an offer of employment on repudi-
ation of support for the union." I conclude this allegation
lacks merit and should be dismissed because the evidence
does not show that such a statement was made on or
about the date indicated.
In paragraph 6(h) of the General Counsel's complaint
in Case 20-CA-18789, it is alleged: "On unknown dates
March 1984, made promises of benefits, and granted
wage increases in order to discourage union activity." I
conclude that the conversation between . Abba and
Parker in March 1984; the conversation between Abba
and Rhodes in March 1984; the granting of wage in-
creases to Parker and Rhodes; the additional promise of
medical and dental benefits to Rhodes; and the timing of
granting those benefits show that the Respondent violat-
ed Section 8(a)(1) of the Act as alleged. While the Re-
spondent earlier had granted wage increases to employ-
ees- in January 1984, Abba had said at that -time that the
employees would not be getting a raise for awhile. How-
ever, the Respondent selectively granted wage-increases
to Parker and to Rhodes 2 months later after the em-
ployees engaged in union activities and aunion represen-
tation petition had been filed with NLRB. Note also that
Parker told Abba that Parker was going to be neutral
concerning the Union, and Abba promised him that ev-
erything was going to be all right. That same day,
Parker received the $100-a-month wage increase. In
tliese circumstances and considering the other unfair
labor practices found herein, I conclude the wage in-
creases and the promises were made to- discourage em-
ployees' union activities. -
.In paragraph -6 of the General Counsel's complaint in
Case 20-CA-18902, it is alleged:
6. On or about April 10, 1984, Respondent, acting
through-Abba, at Respondent's facility:
. (a) Threatened employees with' discharge if they
voted for the Union.
(b) Threatened to close the facility if the Union
won the election.
I'conclude that the conversation between Abba and
Rhodes on April 10, 1984, revealed that Abba told her
that Abba did not want anybody working for him that
wanted a union in there, and that Abba would close
down before he would go union. As indicated previous-
ly, I conclude that such threats tied to employees' pro-
tected union activities are violative of Section 8(a)(1) of
the Act -
MOE WAREHOUSE & ACCESSORY
In paragraphs 7(a) and (b) of the General Counsel's
complaint in Case 20-CA-18902, it is alleged that.the
Respondent discharged Melvin Felton about March 15,
1984, and Donald Baker about March 21, 1984, because
of their union activities and protected concerted activi-
ties and in order to discourage employees from engaging
in such activities. At the trial, the General Counsel delet-
ed the name of Steve Miller from paragraph 7(a)
Based on the credited findings of fact, I conclude that
the General Counsel had presented evidence that the al-
leged discriminates, as well-as other employees of the
Respondent, had been engaged in union activities prior
to their last day of employment with, the Respondent. I
further conclude that the Employer had knowledge of
the union activities of all of its employees in signing
union authorization cards, and that the Employer had
knowledge that the Union had filed a representation peti-
tion with NLRB and sought to represent the Respond-
ent's employees for collective-bargaining purposes.
I also conclude that the evidence shows the Respond-
ent's animus towards its employees ' union activities That
hostility is revealed in the unfair labor practices found
above to be in violation of Section. 8(a)(1) of the Act
Some of those unfair labor practices occurred after the
last days of employment of Felton and Baker with the
Employer, but I conclude that those unfair labor prac-
tices should not be ignored in considering the Respond-
ent's hostility to the union organization of its employees.
In addition. to the independent 8(a)(1) violations, I
have considered three other conversations which oc-
curred on February 27, 1984, which are not,alleged to be
unfair labor practices, but which, also disclose the Re-
spondent's animus toward union activities. In the conver-
sation between Abba and Felton on that date, Abba told
Felton that he was against unions, and that his father had
said the best way to deal with unions was to fire all of
the people who were involved. On the same date, Abba
told Palmer that Abba would never have a union in the
Employer's warehouse. On the same date, Abba told
Rhodes that he did not want anybody working for him
that wanted the union in the Employer's warehouse, and
that Abba would close the. doors before he would go
union.
I also conclude from the findings of fact that there was
an argument regarding overtime pay between Abba and
Felton on March 15, 1984. 'As a result of that dispute,
Abba and Felton's paycheck corrected and paid up
through that date, and sent Felton home Previously,
there had been no complaints about Felton's work, and
he, had received no verbal or written warnings. After
March 15, 1984, the Respondent.did not contact Felton
and tell him to return to work In these circumstances, I
conclude that Felton did not voluntarily quit his employ-
ment, but instead that the Respondent terminated him.
Considering the union activities; the employer's knowl-
edge of those activities; the Respondent 's animus-all as
summarized above-I conclude that the General Counsel
has established a prima facie case of discrimination
which the Respondent has not rebutted. Wright Line, 251
NLRB 1083 (1980) Therefore, I conclude that the Re-
spondent violated Section 8(a)(1) and (3) of the Act by
terminating Felton on March 15, 1984
1141
With regard to the termination of Baker on March 21,
1984, I conclude that the General Counsel also has estab-
lished a prima facie case under Wright Line. The'employ-
ees' union activities, the Employer's knowledge of- such
activities, and the Respondent' s animus towards union
organizational activities already have been summarized
above Note that prior to any union activity, recommen-
dations had been made, by Abba and by. Palmer to dis-
charge Baker, but the Respondent did not terminate
Baker at those times . Yet, after union organizational ac-
tivities had begun and a union representation petition had
been filed, Baker was terminated. Baker was told-by
Abba. at the time of his termination' that his workload,
ability, and attitude about his work were falling down,
and he was showing a lack of pride. Nevertheless, in the
same conversation, Abba also told Baker to see him in 4
or-5 months if Baker needed a job. That latter comment
by Abba casts doubt on the validity of the reasons assert-
ed by Abba.' However, Abba's comment -is just one
factor to be considered among many other factors
At the trial, Baker explained the circumstances' which
led to the warnings Abba had written As to Respond-
ent's Exhibit 6, the evidence revealed that Baker was
training new employees at that` t ime, and the fault on
that occasion really lay 'with one of the new employees.
As to Respondent's Exhibit 5, the evidence showed that
Baker had advised Abba before working hours began of
the necessity to' be absent that day. Later, Baker changed
his plans to be absent on February 10, 1984, at the re-
quest of Abba. Then,' Baker had obtained Abba's permis-
sion to be absent from work on February 13, 1984 As to
Respondent's Exhibit 4, Baker acknowleged the store
manager 's displeasure on that occasion. In view of the
foregoing and particularly the Respondent's animosity
towards the union organizastional activities of its em-
ployees, I conclude that the evidence shows that the rea-
sons advanced by Abba are not the true reasons for
Baker's termination, but instead that these are pretextual
to hide a discriminatory motivation. Wright Line, supra
See also Frank Black Mechanical Services, 271 NLRB
1302 fn. 2, (1984); and Beverly Enterprises, 272 NLRB 83
fn. ,2 (1984). Thus, I conclude that the, Respondent has
not rebutted the General Counsel's prima facie case with
regard to the termination of Baker on March 21, 1984,
and that the Respondent violated Section 8(a)(1) and (3)
of-the Act by terminating Baker. .
In paragraph.13 of the General Counsel's complaint in
Case.20-CA-18902, it is alleged: "Since on or about Feb-
ruary 22, 1984, Respondent has failed and' refused and
continues to fail and refuse to recognize or bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the Unit.". The General Counsel alleges that
the Respondent thereby. violated Section 8(a)(1) and (5)
of the Act. -
I conclude that an appropriate collective-bargaining
unit of the Respondent's employees is one in which the
representation election was held on April 11, 1984. That
unit has been described earlier herein in the statement of
the case. The parties stipulated that the complete work
force at the Employer's facility about February 15, 1984,
consisted' of Baker, Felton, Miller, Parker, Nagra, and
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rhodes' All six of those employees of the Employer
signed union authorization cards. Thus 100 percent of
the Employer's employees at that time supported the
Union. If Davenport were to be included in the unit as
an employee on temporary military leave, the. Union
would still have a substantial majority-at that point in
time. -
Palmer did sign a union authorization card, but I have
not counted Palmer because he was a supervisor at the
time. I have considered Palmer's participation in union
activities to determine whether Palmer's role tainted the
Union's authorization cards. Trial Examiner Arthur Leff-
succinctly held in Orlando Paper Co., 197 NLRB 380,
387 (1972):
The Board has never held that any participation
by a supervisor in,a union organizing campaign, re-
gardless of how marginal his supervisory status or
how slight his participation in the campaign may be,
is sufficient per se to- invalidate the authorization
cards of all employees having knowledge of his in-
terest in the union. Board precedents reflect that the
Board will not invalidate designation cards for su-
pervisory taint unless it is affirmatively established'
as a minimum , either that the participation of the
supervisory personnel in the organizational cam-
paign was of.such a kind as to have implied to the
employees signing the cards that their employer fa-
vored the union-, or that there is a reasonable basis
for believing that the employees whose ' cards are
sought to be invalidated were coercively induced to
designate the Union through fear of supervisory re-
taliation.3 i
31 See the following cases in which , notwithstanding superviso-
ry participation in an organizing campaign , the Board found the
evidence insufficient to support a finding of supervisory taint Clay
City Beverages, Inc, 176 NLRB 681 Juniata Packing Co, 182
NLRB 934, WKRG-TV, 190 NLRB 174, Aero Corp v NL R B,
149 NLRB. 1283, enfd 363 F 2d 702 (C A D C) And see also Ste-
venson Equipment Co, 174 NLRB 865, 866, Turner's Express, Inc
189 NLRB .106
With- the above guidance in mind ,' I conclude that
Palmer 's participation did not taint the Union's authori-
zation cards' in the instant case. I note that The desire to
contact a union for representation originated with the
employees, and not Palmer. Rhodes was the one who
specifically'asked Palmer to contact a union . Abba's con-
versation with the employees, which already have been
summarized in this section, made clear to the employees
the Respondent's opposition to union organizational ac-
tivities and, thus; dispelled any notion that may have ex-
isted that the employees were being coerced by the. Em-
ployer into joining the Union. It is noted that no employ-
ee testified that he was coerced into signing a union au-
thorization card. As has been described earlier herein in
the findings of fact, Abba subsequently ' discharged
Palmer. -
I conclude that the evidence shows that the Union
made a demand for recognition and bargaining in the.
letter dated February 21, 1984, and which was received
on February 22, 1984, by the Respondent. ' (See G.C.
Exh. 4.) However, the Respondent did not recognize and
bargain with the Union. _
In its decision in J. Coty Messenger Service, 272 NLRB
268 (1984), the Board held:.
In determining whether a bargaining order is war-
ranted to remedy the Respondent's misconduct in
this case, we apply the test set out in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969). There, the
Court described two types of situations where bar-
gaining orders are appropriate: (1) "exceptional"
cases marked by "outrageous"- and "pervasive"
unfair labor parctices; and (2) "less extraordinary"
cases marked by "less pervasive" practices.4 The
Court thus approved the Board's use of a bargain-
ing order in "less -extraordinary" cases where the
employer's unlawful conduct has "tendency to un-
dermine [the union's] majority strength and impede
the election processes."5 In such cases, the Court
indicated that when the Respondent's unfair labor
practices are less flagrant and at one time the union
had majority support among unit employees, the
Board-may consider:
. .. the extensiveness of an employer's unfair
practices in terms of their past effect on election
conditions and the likelihood of their recurrence
in the future. If the Board finds that the possibili-
ty of erasing the effects of past practices and of
ensuring a fair election (or a fair rerun) by the
use of traditional remedies, though present, is
slight and the employee sentiment once expressed
through cards would, on balance, be better pro-
tected by a bargaining order then such an order
should issue.6
* Gissel, supra, at 613-614
s Id at 614
e Id at 614-615 •
In its decision in Horizon Air Services, 272 NLRB 243
(1984), the Board held:
As the judge found, the Respondent engaged in nu-
merous unfair labor practices of the type which the
Board has long held to be extremely coercive. The
Second Circuit Court of Appeals characterized such
conduct as "hallmark" violations and held that
"their presence will support the issuance of -a bar-
gaining order unless some significant mitigating cir-
cumstances exist." NLRB Jamaica Towing, 632 F.2d
208 (1980). The court stated that these "hallmark"
-violations include such employer misbehavior as the
closing of plant or threats of plant closure or loss of
employment, the grant- of benefits to employees, or
the reassignment, demotion or discharge of union
adherents'in violation of Section 8(a)(3) of the Act.
In such cases the seriousness of the conduct, cou-
pled with the fact that often it represents complete
action as distinguished from mere statements, inter-
rogations or promises, justifies a finding without ex-
tensive explication that is likely to have a lasting in-
MOE WAREHOUSE & ACCESSORY l'143
hibitive effect on a substantial percentage 'of the
work force." Id. 212-213.
With the foregoing guidance from the holdings quoted
above in mind , I conclude that the evidence in this case
shows that the Respondent has engaged in "less extraor-
dinary" actions marked by "less pervasive " unfair labor
practices . Nevertheless , I also conclude that some of the
Respondent 's unfair labor - practices fall into the category
described above - as "hallmark" violations . Those unfair
labor practices include the discriminatory termination of
two employees because of the employees ' union activities
in a relatively small unit of employees ; threats made by
the owner of the Respondent to reduce the crews or
close the warehouse , if the Union came in; a threat by
the owner that the employees would have to vote
against the Union in order for the employees to keep
their jobs; a threat by the owner- that the Employer
would close down , if the Union came in; the owner tell-
ing an employee that the Employer did not want any-
body working for the Employer that wanted a union,
and telling the employee that the Employer would close
down before the Employer would go union , and the
granting of benefits to employees in the circumstances
described previously. See also J. & G. Wall Baking Co.,
272 NLRB 1008 ( 1984). In accordance with the decisions
referred to above, I conclude that such "hallmark" unfair'
labor practices are not likely to be erased by the use of
traditional remedies , and-that the use of traditional reme-
dies will not ensure that a fair rerun election can be held
in such circumstances Therefore , I conclude that the
Union 's authorization cards reflect an expression of the
majority employee sentiment , and that a bargaining order
is required here as a remedy and to protect the employ-
ees rights to bargain collectively.'
IX THE CHALLENGED BALLOTS -
As indicated , earlier in the Statement ; of the Case, the
ballots ' of six persons were challenged at the representa-
tion election held on April 11, 1984. Those ballots are
determinative of the outcome of the election. In alpha-
betical order by their last names , the six persons involved
are: Don Baker , Melvin Felton , - Angela Lamb, Steve
Miller , John Palmer , and J . William Renfroe.
The ballots of Baker and Felton ' were challenged by
the NLRB agent because their names were not on the
eligibility list' at the election. 39 In light' of the findings
and conclusions stated earlier that the Employer termi-
nated both Baker and Felton froni'employment in "viola-
tion of Section'8(a)(1) and '(3):of, the Act,' I recommend
to the Board that the challenges to their ballots be over-
ruled and that their ballots be opened and counted.
The ballot 'of 'Lamb was challenged by. the "Union on
the 'grounds that . she was ' a confidential 'employee. Lamb
was employed by the Employer on the day of the'repre-
sentation election. She liad worked there for" ipproxi-
mately ' 2-1%2 to ' 3 months at that tune . Lamb assisted. t . . r. f . ,
39 In the Regional Director's Report on.Objections and Challenged
Ballots, order consolidating cases, and notice of hearing, there is a-typo-
graphical'error in the spelling of Baker's first name' It should read Don
Baker ' - { - , "
Rhodes in preparing"Invoices and writing orders. She
also helped place merchandise in the stores . 40 I conclude
'that the evidence shows -that the challenge to her ballot
lacks merit , and that the - evidence affirmatively shows
that Lamb was an eligible voter.'Accordingly, I recom-
mend to the Board that the challenge to Lamb's ballot be
overruled , and that her ballot be opened and counted.
The ballot of Miller was challenged by the NLRB
agent because Miller 's name was not on the eligibility list
at the election . The parties stipulated that the challenge
to the ballot of Miller was valid and proper ; that- the
challenge should be sustained, and that his ballot should
not be opened and counted . Accordingly , I so recom-
mend to the Board. - '
The ballot of Palmer was challenged by the NLRB
agent - because Palmer 's name was not on the eligibility
list at the election . The parties stipulated that the chal-
lenge to the ballot of Palmer should be sustained and
that his ballot should not be opened and counted. Ac-
cordingly , I so recommend to the Board.
The challenge 'to the ballot of Renfroe was made by
the Union on the grounds that he was a replacement for
an allegedly unlawfully discharged employee. Renfroe
was working for the Employer on the day of the repre-
sentation election . He had worked as a warehouseman
for the Employer for 4 to 4 - 1/2 months at that time.41 I
conclude that the evidence shows that the - challenge to
Renfroe 's ballot lacks merit , and that the evidence af-
firmatively shows that he was an eligible voter . Accord-
ingly , I recommend to the Board that .the challenge to
Renfroe 's 'ballot be overruled and that his " ballot be
opened and counted. '
X. THE UNION 'S OBJECTIONS TO THE ELECTION
The Union filed three objections to the conduct of the
representation election and to conduct affecting the re-
sults of the election. .
The. Union's first objection is' "I., After the Petition
herein . was filed and just prior to the election , the Em-
ployer interrogated ,, coerced and threatened individual
employees about the Election and about their votes." I
conclude that the evidence shows that the Union 's first
objection has merit The evidence .and the findings are
summarized in section 8 herein , and, therefore„ need not
be repeated here . Specifically , . I, conclude , the. evidence
regarding the independent 8(a)(1) unfair labor , practices
found -with regard to the allegations in. paragraphs 6(c)
and (e) of the General Counsel's complaint in Case .20-
CA-18798 and the, allegations in,paragraphs 6(a) and (b)
of the ' Genera_ l Counsel's complaint ; in Case , 20-CA-
18902 support the. Union 's, objection 1. In, its decision in
Life Savers, 264 LRB 1257 (1982), the, Board held: `,`It
has long been held that conduct , "violative of Section
8(a)(1) is, a fortiori, conduct which interferes . with ,the,
laboratory conditions of .an election . Dal-Tex Optical co ';, '
137 NLRB 1782 ,- 1786 (1962). •
, -1,
40 The foregoing is based on the testimony of Abba At Tr 318 and
322, 11 24-25 and 7, respectively, the court reporter is in error in tran-
scribing "our case " The reference was to an "R case" as , being a nonad-
versary proceeding ' I - •. - •-
• 41 The foregoing is based on the.testimony of Abba
1144 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
In addition I find the evidence regarding the conversa-
tions between Abba and Palmer; Abba and Rhodes; and
Abba and Felton-all of which occurred on February
27, 1984, and are summarized in section 8 herein, also
support the Union's objection 1. I also conclude that the
evidence regarding the allegations of paragraph 6(a) and
(b)L of the General Counsel's, complaint in Case 20-CA-
18789 do not support the Union's objection 1 because
that evidence falls outside of the "critical period," i.e.,
the date the petition was, filed on February 24, 1984,
through the election held on April 11, 1984. I also con-
clude that the evidence with regard to paragraph 6(h) of
_the General Counsel's complaint in Case 20-CA-18789 is
not within the scope of Union's objection 1.
The Union's second objection is: "After the Petition
here was filed'. and just prior to the Election, the Em-
ployer dischared employees John Palmer, Steve Miller,
Don. Baker, and Melvin Felton for participating in and
supporting Petitioner Union's election campaign." I con-
clude that the portion of the Union's second objection
which pertains to the discharge of Baker and Felton by
the Employer has merit because I have found that they
were terminated in violation of Section 8(a)(1) and (3) of
the Act.-See section 8 herein.
The Union's third objection is: "After the Petition
herein was filed and prior to the Election, the Employer
hired employees for the sole purpose of diluting the Peti-
tioner Union's support." I conclude that there is no evi-
dence to support this objection and, therefore, I find that
the Union's third objection lacks merit.
Because I have found that the Union's objection 1 has
merit and the Union's objection 2 has merit, in part, as
described above, I recommend to the Board that the first
election be set aside. I further recommend to the Board
that a second election be directed by the Board, if after
the opening and 'the counting of the ballots to which
challenges- were overruled, the revised tally of ballots
discloses that the Union did not receive-a majority of the
valid votes cast. The reason I have made the foregoing
recommendation regarding a second election is this. Al-
though I have found that the Employer violated Section
8(a)(1) and (5) of the Act by its failure and refusal to bar-
gain with the Union, as described in section 8 herein, and
that a Gissel remedy is appropriate, it may be the Union's
desire, if it loses the first election, to proceed to a-second
election to "obtain the benefits of a NLRB certification if
it were to win a second election.
CONCLUSIONS OF LAW
1., The Respondent is an employer. engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. At all times material herein, the Union has been the
exclusive collective-bargaining representative of the em-
ployees of the Respondent in the following appropriate
unit'
All full-time and regular part-time warehouse , sales,
clerical employees, production and maintenance em-
ployees employed by the Employer at its Sacramen-
to, : California, facility; excluding confidential em-
ployees, guards and supervisors as defined by the
Act.
4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act by:
(a) Questioning an employee as to whether he had
signed a union card in the context of promising the em-
ployee that he would be considered for a management
position at a warehouse the Employer planned to open.
(b) Threatening an employee that the Employer would
reduce the crews or close the warehouse if the Union
came, in, and, in order for the employees to keep their
jobs, the employees would have to' vote against the
Union.
(c) Threatening employees that the Employer would
close down, if the Union came in the' warehouse.
(d) Making promises of benefits and granting wage in-
creases in order to discourage e'mployees' union activi-
ties.
(e) Telling an employee that the Employer did not
want anybody working- for the Employer that wanted a
union there, and by telling an employee that the Em-
ployer would close down before the Employer would go
union.
5. The Respondent has not engaged in the unfair labor
practices alleged in paragraphs 6(f) and' (g) of the Gener-
al Counsel's complaint in Case 20-CA-18789.
6. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act by terminating Melvin Felton on March 15, 1984,
and by terminating Donald Baker bn March 21, 1984, be-
cause they had engaged in union activities and protected
concerted activities, and in order to discourage employ-
ees from engaging in such activities.
7. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of the
Act by failing and refusing since about February 22.
1984, -to recognize and bargain collectively with the
Union as the representative of the employees of the Em-
ployer in the unit described above.
8. The unfair' labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY-
Since I have found that the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the Act, I shall recommend to the
Board that the' Respondent be ordered to cease and
desist from engaging in such unfair practices. I shall also
recommend to the Board that the Respondent be ordered
to take certain affirmative action in, order to effectuate
the policies of the Act. •
Backpay' is to be computed in. accordance with the
Board's decision in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest on such backpay to be computed in
accordance with the Board's decisions in Isis Plumbing
Co., 138 NLRB 716 (1962); Florida Steel, Corp., 231
NLRB 651 (1977), and Olympic Medical Corp., 250
NLRB 146 (1980).
MOE WAREHOUSE & ACCESSORY
In accordance with the Board 's decision in Sterling
Sugars, 261 NLRB 472 ( 1982), I shall recommended to
the Board that an expunction remedy be included in the
remedial order
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed42
ORDER
The Respondent , Moe Warehouse & Accessory , Sacre-
mento; California , its officers , agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Questioning an employee as to whether he had
signed a union card in the context of promising the em-
ployee that he would be considered for a management
position at a warehouse the Employer planned to open.
(b) Threatening an employee that the Employer would
reduce the crews or close the warehouse if the Union
came in and , in order for the employees to keep their
jobs, the employees would have to vote against the
Union i
(c) Threatening employees that the Employer would
close down if the Union came in the warehouse.
(d) Making promises of benefits and granting wage in-
creases in order to discourage employees ' union activi-
ties.
(e) Telling an employee that the Employer did not
want anybody working for the Employer that wanted a
union there , and'telling an employee that the Employer
would close down before the Employer would go union.
(f) Terminating from employment employees because
they had engaged in union activities and protected con-
certed activities , and in order to discourage employees
from engaging in such activities.
(g) Failing and refusing to recognize and to bargain
collectively with the Union as the representative of the
employees of the Employer in the unit described below:
All full-time and regular part -time warehouse , sales,
clerical employees, production and maintenance em-
ployees employed by the Employer at its Sacramen-
to, California , facility; excluding confidential em-
ployees, guards and supervisors as defined by the
Act.
(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 which will ef-
fectuate the policies of the Act.
(a) Recognize and bargain , on request , with the Union
as the exclusive collective -bargaining representative of
the employees of the Respondent in the unit described
above and , if an understanding is reached , embody such
understanding in a written agreement.
42 If no exceptions are filed as provided by Sec 102 46 of the Board's
Roles and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec 10148 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1145
.(b) Offer immediate and full -reinstatement to Melvin
Felton and- Don Baker to their former jobs or , if those
jobs no longer exist , to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed , and make them whole
for any loss of their - 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 Melvin Felton and Don Baker , and notify
the employees in writing 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 facility at Sacremento, California , copies
of the attached notice marked "Appendix 9143 Copies of
the notice , on forms provided by the . Regional Director
for Region 20, after being signed by the Respondent's
authorized representative , shall be posted by the Re-
spondent immediately upon receipt , and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the - notices are not altered , defaced, or
covered by ariy 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.
43 If this Order is enforced by a Judgment of a United States Court of
Appeals , the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court ofAppeals Enforcing an Order of the Nation-
al Labor Relations Board "
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.
Section 7 of the Act gives employees these rights.
To organize
To form , join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT question an employee as to whether he
had signed a union card in the context of promising the
-1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee that he would be considered for a management
position at a warehouse our Company planned to` open.
WE WILL NOT threaten an employee that our Compa-
ny would reduce the crews or close the warehouse if the
Union came in and ,- in order for the employees to keep
their jobs, the employees would have to vote 'against the
Union. - -
WE WILL NOT threaten employees that our Company
would close down, if the Union came in the warehouse.
WE WILL NOT make promises of benefits and grant
wage- increases in order to discourage our employees'
union activities.
WE WILL NOT tell an employee that our Company did
not want anybody working for our Company that
wanted a union, and WE WILL NOT tell an employee that
our Company would close down before our Company
would,go union.
WE WILL NOT terminate employees from employment
with ourr` Company because the employees had engaged
in union activities and protected concerted activities, and
in order to discourage our employees from engaging in
such activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed to them by the, National Labor Rela-
tions Act.
WE WILL offer immediate and full reinstatement to
Melvin Felton and Don Baker to -their former positions
of employment with our Company, without the loss of
their seniority or other benefits, but if their former posi-
tions of employment no longer exist, WE WILL offer
them substantially equivalent positions of employment
-with our Company without the loss of their seniority or
other benefits.
WE WILL make whole Melvin Felton and Don Baker
for their monetary losses, including appropriate interest
on such money, which has resulted from our termination
of them.
WE WILL expunge from the Company's files; any refer-
ence to the termination of Melvin Felton and Don
Baker, and WE WILL notify them, in writing, that this has
been done, and that evidence of their termination will
not be used as a basis for future personnel act it
WE WILL recognize and bargain, on r, test, with
Food Process Workers, Warehousemen & Helpers Local
228, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of Amenca,
as the exclusive collective-bargaining representative of
the employees of our Company in the unit -described
below, and WE WILL embody any understanding reached
in a signed agreement. This unit is:
All full-time and regular part-time warehouse, sales,
clerical employees, production and maintenance em-
ployees employed by Moe Warehouse & Accessory
at its Sacramento, California, facility; excluding
confidential employees, guards and supervisors- as
defined by the Act.
MOE WAREHOUSE & ACCESSORY