Parts Depot

National Labor Relations Board - Board Decisions

Sep 29, 2000

332 N.L.R.B. 670 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
Parts Depot, Inc. and Union of Needletrades, Indus-
trial and Textile Employees, AFL–CIO, CLC
(UNITE.) Cases 12–CA–16449, 12–CA–16741,
and 12–RC–7736
September 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On June 30, 1997, Administrative Law Judge Richard
J. Linton issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel and the Charging Party each filed an answering
brief to the Respondent’s exceptions. The General Coun-
sel filed cross-exceptions and a supporting brief, the
Charging Party also filed a brief in support of the Gen-
eral Counsel’s cross-exceptions, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified below and to adopt the recommended Order.2
1. The Respondent excepts to the judge’s finding that,
beginning on June 1 until October 27, 1994, the Respon-
dent embarked on a campaign of fabricated discipline,
fraudulent performance evaluation, and unlawful layoff
of employee Vivian Fortin in retaliation for her support
of, and to discourage others from supporting, the Union.
The Respondent contends that it was justified in issuing
disciplinary warnings to Fortin, that her performance
evaluation was based on her low productivity, and that
her selection for layoff was based on the evaluation and
with no consideration, or indeed knowledge, of her union
activity. We find no merit to the Respondent’s excep-
tions.

1 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951.) We have carefully examined the
record and find no basis for reversing the findings.
We agree with the judge’s finding that the Respondent’s vice presi-
dent for southern operations, Peter Bassett, did not threaten plant clo-
sure, as alleged in complaint par. 5(b), in a conversation with Jose
Castro on May 9, 1994, when Bassett said, “Remember what happened
to Eastern Airlines. Because they let the union in they went bankrupt.”
At most, Bassett’s isolated statement is a misrepresentation as to what
caused Eastern to go bankrupt, not an implicit statement that Parts
Depot would take action on its own to declare bankruptcy if the Union
won the election. In reaching this conclusion, we also rely on the
judge’s crediting of testimony that the speeches made by Bassett to
employees did not include any unlawful veiled references to plant
closure.
2 The judge’s recommended Order and notice, as written, encompass
the additional violations found below, and thus no modifications to the
Order are necessary.
The Respondent is in the business of selling automo-
tive replacement parts at wholesale from 11 warehouses
and distribution centers in the eastern United States.
Fortin began work at the Respondent’s Miami warehouse
in 1986 and, from that time until her layoff in October
1994, she held a number of customer service positions.
Because of her reputation for providing excellent service
to customers,3 in early 1994 the Respondent’s then-vice
president for southern operations, Peter Bassett,4 as-
signed Fortin to staff the Metro-Dade account, a separate
account established by Bassett to provide exclusive ser-
vice to approximately two dozen governmental custom-
ers in the metropolitan Dade County area.5 As of June
1994 Fortin had been commended for increasing sales in
the Metro-Dade account.
All that changed on June 1, 1994, however, when the
Respondent learned of Fortin’s prominent support for the
Union. On that day, Fortin appeared under subpoena to
testify on the Union’s behalf at a representation hearing
and was quoted in the Miami Herald as saying the work-
ers “want to better ourselves.”6 When she returned to
work later that day, Fortin received her first disciplinary
warning since she began working for the Respondent. In
total, the Respondent would issue four disciplinary warn-
ings to Fortin during June, three within 2 days of the
hearing, warnings that the judge found were based on
fabricated allegations against Fortin.7 Also during that
time, in what was described as a cost-cutting move, the
3 Bassett described Fortin as cheerful and willing to do whatever as-
sisting work needed to be done. He also noted her skill at performing
lookups, a process, which involves identifying a part by its appearance
and looking up its part number. Indeed, the Respondent acknowledged
that customers would ask for Fortin by name to perform this service.
4 Bassett’s office was located at the Miami facility at issue here.
5 There is no dispute that, in order to remain competitive, the Metro-
Dade account required an added level of customer service from that
provided in the Respondent’s telephone order room. To that end,
Fortin was seated in an office separate from the “phone room” in which
all other telephone orders were taken. In addition, Bassett installed a
separate telephone line with voice mail capabilities for Metro-Dade
customers only and established a delivery van specifically for those
customers.
6 Fortin was the only employee quoted in the article.
7 The Respondent issued Fortin a warning on June 1, 1994, for fail-
ing to promptly return to work from the representation hearing; she
punched out at noon and returned at 3:40 p.m. The next day, the Re-
spondent issued a written warning for an incident at the loading dock
when Fortin told a group of employees, in Spanish, to return to work.
That same day she was disciplined for taking a coffeebreak with an-
other employee. The other employee did not receive any discipline.
Then, on June 23, Fortin was disciplined for talking to another em-
ployee before work.
332 NLRB No. 64
PARTS DEPOT, INC. 671
Respondent removed the recently implemented services
for the Metro-Dade account, i.e., the exclusive telephone
number with its voice mail capabilities used to reach
Fortin directly, and ceased the special van deliveries to
those customers. The Respondent thereafter ground-
lessly held Fortin accountable for the ensuing decreased
sales in the Metro-Dade account, which the judge found
was more likely attributable to the elimination of these
support services.
Notwithstanding this discipline, Fortin remained one
of the Union’s most prominent vocal supporters, appear-
ing in a group photo on a union flyer distributed during
the campaign, passing out leaflets and petitions, and
serving as one of the Union’s two observers at the elec-
tion held July 7 and 8, 1994.8
The Respondent contends that each of the disciplinary
actions it took against Fortin was unrelated to her union
activity. The Respondent contends that in each case
Fortin was disciplined for being away from her work-
station and in an area of the warehouse where she did not
belong. The evidence does not support the Respondent’s
contentions.
Contrary to the Respondent, the credited testimony re-
veals that Fortin did have business reasons to visit the
warehouse, had done so routinely in the past, and that the
Respondent began to restrict her movements only after it
learned of her support for the Union. Moreover, the
credited testimony also shows that other employees were
not similarly disciplined, even those employees who
were talking to Fortin on the very occasion for which she
was disciplined. Given this disparity of treatment and
the fact that Fortin’s movements were not restricted be-
fore the Respondent learned of her union activity, the
reasonable inference, which we draw, is that Fortin’s
union activity was a motivating factor in the Respon-
dent’s discipline of her.
The Respondent also excepts to the judge’s finding
that it was motivated by union animus in giving Fortin a
low performance evaluation in August 1994. The Re-
spondent contends that Fortin’s evaluation was based on
her low call productivity (an average of 100 calls per day
as compared with the 200–300 calls taken by the cus-
tomer service representatives in the phone room) and
declining sales in the Metro-Dade account. According to
the Respondent, the judge ignored the uncontroverted
evidence that the Respondent’s outside salesman, Robert
Ortega, told Bassett that customers were complaining of
poor service. Moreover, the Respondent contends that at
the time of the evaluation Metro-Dade sales had declined
and it blamed the decline on Fortin’s being away from
her desk and unable to receive the calls. Finally, the Re-
spondent contends that the judge engaged in “rank specu-
lation” when he determined what Fortin should have re-
ceived on her evaluation based on past evaluations in
1987 and 1989.

8 The tally of ballots showed 40 votes for the Union and 46 against,
with 13 determinative challenged ballots. The challenges were re-
solved at the hearing with the parties agreeing to sustain the challenges
to seven employees and to find eligible the remaining six, which the
judge found were no longer determinative.
There is no dispute that, in early August 1994, the Re-
spondent issued Fortin a performance evaluation in
which she received an overall rating of “2,” indicating
“improvement needed.” The judge found the Respon-
dent’s reasons for its low evaluation of Fortin to be
fraudulent, pretextual, and motivated by union animus. In
finding the unfavorable evaluation to have been unlaw-
fully motivated, the judge engaged in an extensive analy-
sis of Fortin’s prior evaluations, in 1987 and 1989, and
compared the different categories on the respective
evaluations.9 Based on that analysis, the judge deter-
mined that, had the Respondent not been unlawfully mo-
tivated, Fortin would have received an overall rating
equivalent to a 4, indicating “above standard.”
We agree with the judge that the Respondent’s reasons
for giving Fortin an unfavorable performance evaluation
ring hollow. By the account of its own witnesses, the
evaluation covered a 1-year period from August 1993 to
August 1994, during which Fortin was selected for the
Metro-Dade account based on her good reputation for
customer service and commended for increasing the
Metro-Dade sales during the months prior to June. The
Respondent presented no data or analyses in connection
with its assertion that Metro-Dade sales declined in July.
More importantly, the Respondent failed to show that
any decline in July was the result of Fortin’s actions. As
noted above, during June, the Respondent removed the
special phone line, voice mail service, and special deliv-
ery van dedicated to Metro-Dade customers, and, like the
judge, we infer that any decline is more reasonably at-
tributable to the elimination of these support services.
The Respondent’s reliance on Fortin’s purported low
call productivity is also unpersuasive. First, there is no
evidence, beyond Pacheco’s discredited testimony, that
Fortin was ever warned about low call productivity.
Moreover, by all accounts, Fortin’s position servicing the
Metro-Dade account required a higher level of customer
service and a different form of service from those in the
phone room to whom she was being compared.10 In
9 The Respondent used a different evaluation form in 1994 than it
had in years past.
10 For example, Fortin’s task was to call the customers for their or-
ders, as contrasted with the customer service representatives in the
phone room who received calls from customers placing orders.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672
short, we agree with the judge that the Respondent’s pur-
ported reasons for issuing disciplinary warnings and an
unfavorable performance evaluation to Fortin were pre-
textual, designed to cover up the Respondent’s unlawful
discriminatory motive.
Having so found, we find it unnecessary to rely on the
judge’s analysis of what Fortin would have been rated in
the absence of the Respondent’s unlawful retaliation for
her union support. The General Counsel has demon-
strated that animus against Fortin for her union activity
was a motivating factor in the Respondent’s issuance of
an unfavorable performance evaluation. The burden
therefore shifts to the Respondent to show that Fortin
would have received the unfavorable evaluation even
absent her union activity.11 Because we find that the
Respondent’s proffered reasons for Fortin’s unfavorable
evaluation were pretextual, we find that the Respondent
has not carried that burden.12
The Respondent also excepts to the judge’s finding
that the Respondent was motivated by union animus in
selecting Fortin for layoff on October 27.13 In support of
its argument, the Respondent argues that Mark Noble,
vice president for warehouse operations and Bassett’s
successor at the Miami facility,14 made the layoff deci-
sion and points to the lack of evidence of union animus
or knowledge of Fortin’s union activity on his part. In
this regard, the Respondent notes the undisputed evi-
dence that Noble was not present at the facility either
during or immediately after the union campaign and elec-
tion. In addition, the Respondent points to Noble’s tes-
timony that he made the decision about whom to lay off
without input from management at the facility and
strictly on the basis of the performance evaluations.
Initially, we note that the judge discredited Noble’s
testimony that he was uninfluenced by anyone at the fa-
cility or by any union animus of his own. Rather, the
judge found that Noble was aware of Fortin’s union ac-
tivity and was directed by the Respondent’s chairman,
Olson, or president, Al Wood, to retaliate against Fortin
for her union activity.15 In any event, even if Noble’s
motives in selecting Fortin for layoff were not them-
selves unlawful, his selection of Fortin for layoff admit-
tedly was based primarily on an evaluation of Fortin that
we have found to be tainted by the Respondent’s union
animus. Noble’s reliance on that tainted evaluation pro-
vides the nexus for showing that the decision to lay off
Fortin was the result of unlawful discrimination. Thus
we find that the Respondent’s decision to lay off Fortin
on October 27, 1994, violated Section 8(a)(3.) See C&L
Systems Corp., 299 NLRB 366, 379 (1990), enfd. 935
F.2d 270 (6th Cir. 1991), quoting Boston Mutual Life
Insurance Co. v. NLRB, 692 F.2d 169, 171 (1st Cir.
1982) (antiunion motivation of supervisor imputed to
decisionmaker in order to prevent “company [from]
launder[ing] the ‘bad’ motives of certain of its supervi-
sors by forwarding a dispassionate report to a neutral
superior”.)

11 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982.)
12 See Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982.)
13 Fortin was the only phone room employee laid off in October.
Another phone room employee, Michelle Sanchez, quit before the
layoff. In an earlier layoff in August, the Respondent laid off 25 ware-
house employees.
14 The Respondent underwent a corporate reorganization in Septem-
ber 1994, which removed Bassett as the vice president for southern
operations and replaced him with Mark Noble, who had been Bassett’s
counterpart for northern operations stationed at the Respondent’s head-
quarters in Roanoke, Virginia. From 1994 until some time during the
hearing on this case in 1996, when Bassett left the Respondent’s em-
ploy, Bassett served as a vice president in Roanoke.
2. The judge found, and we agree, that the Respondent,
through Bassett, violated Section 8(a)(1) by promising to
terminate Warehouse Manager Bill Beaman if that would
stop the union effort. The General Counsel contends the
judge also should have found that Bassett interrogated
employee Vivian Fortin during that same conversation.
We agree.
Early on the morning of May 12, 1994, Bassett sum-
moned Fortin to his office and asked whether she had
heard rumors about the Union. When she replied that
she had Bassett asked what he could do to stop the Union
and if getting rid of Beaman would help. Fortin said she
did not know, and the conversation ended.
The judge found, and we agree, that Bassett’s asking
Fortin whether the Union could be stopped if he termi-
nated Beaman constituted an unlawful offer to improve
working conditions in violation of Section 8(a)(1.)
However, the judge dismissed the related complaint alle-
gation that the conversation was an unlawful interroga-
tion. In that regard, the judge found that there was no
coercion during this conversation inasmuch as Bassett
was unaware that Fortin had signed a union card, he had
spoken with her a number of times over the years, and he
“trusted” her. We disagree.
An employer violates Section 8(a)(1) when it interro-
gates an employee about the union where the questioning
reasonably tends to restrain, coerce, or interfere with
employees’ rights guaranteed by the Act. Rossmore
House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel &
Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985); Sunnyvale Medical Clinic, 277 NLRB
15 Olson had been the Respondent’s president as well as chairman
until June 1, 1994, when Al Woods was hired as president. Olson kept
his office at the Miami facility.

PARTS DEPOT, INC. 673
1217 (1985.) To determine whether the inquiry is coer-
cive, the Board considers the following factors: the
background, the nature of the information sought, the
identity of the questioner, and the place and method of
interrogation.
Applying these factors to Bassett’s interrogation of
Fortin, we find that coercion prohibited by Section
8(a)(1) is amply demonstrated. As of May 12, 1994,
Fortin was not an open and active union supporter.16 On
that date Bassett, the highest management official at the
facility, summoned her to his office for no purpose other
than to ask her about the Union and, during the course of
the brief conversation, unlawfully promised to improve
working conditions in order to stop the union effort.17
Where the interrogation is accompanied by threats or
other violations of Section 8(a)(1), as this one was, there
can be no question as to the coercive effect of the in-
quiry.18 We find, therefore, that Bassett interrogated
Fortin in violation of Section 8(a)(1.)
3. The General Counsel and the Charging Party also
except to the judge’s dismissal of complaint paragraph
5(e) which alleges that Bassett “offered employees an
open-door policy and offered to negotiate directly with
employees to resolve their grievances in order to dis-
courage employees from joining the Union.” Crediting
Bassett, the judge found that, during a meeting on May
17, he read from page 9 of the employee handbook and
reminded employees of the Respondent’s open-door pol-
icy that the employees could use to address such personal
matters as sick days not properly being recorded in the
employees’ personnel files. That passage, entitled “Em-
ployee Relations,” states:

The Company believes that the work [sic] condi-
tions, wages, and benefits it offers to its employees
are competitive with those offered by other employ-
ers in this area and in this industry. If employees
have concerns about work [sic] conditions or com-
pensation, they are strongly encouraged to voice
these concerns openly and directly to their supervi-
sors.

16 There is no evidence that the Respondent was aware that Fortin
signed a union card 2 days earlier.
17 This is not, as the judge suggests, a case where Bassett was privi-
leged to talk to Fortin about the Union on the basis of friendship. Cf.
Churchill’s Supermarkets, 285 NLRB 138 (1987), enfd. 857 F.2d 1474
(6th Cir. 1981), cert. denied 490 U.S. 1046 (1989.) There is no indica-
tion on this lengthy record that Fortin’s relationship with Bassett was
anything but that of employee and employer. See Acme Bus Corp., 320
NLRB 458, 458 (1995), enfd. 198 F.3d 233 (2d Cir. 1999) (friendly
relationship between supervisor and employee does not diminish coer-
civeness of interrogation.)
18 Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel &
Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.
1985.) Indeed, the message Bassett delivered to Fortin during their
brief conversation was that the Respondent would go to great lengths,
even fire the warehouse manager, in order to stop the union effort.
Our experience has shown that when employees
deal openly and directly with supervisors, the work
environment can be excellent, communications can
be clear, and attitudes can be positive. We believe
that the Company amply demonstrates its commit-
ment to employees by responding effectively to em-
ployee concerns.

The judge found that Bassett told the employees that, under
the open-door policy as provided in the handbook, employ-
ees with problems could come see either himself or Opera-
tions Manager Jenkins. The judge found that Bassett’s
statement was not inconsistent with the handbook’s policy
and dismissed the allegation.
The General Counsel and the Charging Party argue,
however, that, even assuming that the ambiguous lan-
guage of the handbook is consistent with an open-door
policy, that policy was not the policy in effect at the fa-
cility. Rather, they point to undisputed testimony that the
warehouse manager, Bill Beaman, who was fired by Bas-
sett on May 13, 1994, had prevented employees from
taking their concerns directly to Bassett.
Several employees testified without contradiction that
Beaman forbade them from bringing their problems and
concerns to anyone but him. Thus, at least during Bea-
man’s tenure, the Respondent’s “policy” was not the
ambiguous “open-door policy” contained in the hand-
book, but that the warehouse employees were to bring
their concerns to their warehouse manager, not to Bas-
sett. Bassett’s articulation of a policy that effectively for
the first time opened his door to the employees thus
represents an improvement in working conditions for
those employees and a violation of Section 8(a)(1.)19
4. The General Counsel and Charging Party also ex-
cept to the judge’s dismissal of complaint paragraph
6(b), which alleges that the Respondent’s fleet supervi-
sor, Robert Williamson, interrogated employee Osberto
Jerez about his union activity during a conversation on
June 9, 1994. Crediting Jerez over Williamson’s denial,
the judge found that, on that date, Williamson called to
Jerez as he was about to leave on his route and asked, in
an angry and elevated tone, what Jerez’ picture was do-
ing on a prounion flyer that had been distributed to em-
ployees at the Respondent’s Fort Lauderdale facility.
Williamson also told Jerez that management already
knew who the union leaders were and proceeded to name
19 See NLRB v. S.E. Nichols, 262 F.2d 952, 958 (2d Cir. 1988), cert.
denied 490 U.S. 1008 (1989) (upholding Board finding that open-door
policy, if it existed, had been inconsistently applied and that change in
policy during campaign violated Sec. 8(a)(1.))

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674
several employees who were involved with the organiz-
ing campaign.20 Despite these factual findings, the judge
dismissed the interrogation under Rossmore House on
the ground that Jerez was an open union supporter. We
disagree.
As noted above, in Rossmore House the Board held
that the questioning of open and active union supporters
about their union sentiments, unaccompanied by threats
or promises, was not coercive and, therefore, not a viola-
tion of Section 8(a)(1.)21 In this case, however, as the
judge noted, Williamson’s remarks, delivered in an ele-
vated and angry tone, contained an implied threat of un-
specified reprisals. An interrogation of an open and ac-
tive union supporter, coupled with such a threat, is coer-
cive and a violation of Section 8(a)(1), and we so find.22
Rossmore House, supra.
5. Finally, the Respondent excepts to the judge’s find-
ing that a Gissel23 bargaining order is warranted in this
case. First, the Respondent takes issue with the judge’s
finding that the Union enjoyed majority support, con-
tending that the judge erroneously admitted unauthenti-
cated cards. The Respondent next argues that the pas-
sage of time and the turnover of management and em-
ployees render a free and fair election possible. Finally,
the Respondent argues that the violations found are nei-
ther pervasive nor serious enough to warrant a bargaining
order.
The judge found that the Union had established that it
had authorization cards signed by 66 of the 102 unit em-
ployees, thus demonstrating its majority status. We find
no merit in the Respondent’s contention that several of
the union authorization cards were not reliably authenti-
cated at trial because the signatures were identified by
the judge or a handwriting expert rather that the actual
signer. As the judge found, the Board has long held, con-
sistent with Section 901(b)(3) of the Federal Rules of
Evidence, that a judge or a handwriting expert may de-
termine the genuineness of signatures on authorization
cards by comparing them to W-4 forms in the employer’s
records. See Traction Wholesale Center Co., 328 NLRB
1058, 1059 (1999), enfd. 216 F.3d 92 (D.C. Cir. 2000);
Justak Bros., 253 NLRB 1054, 1079 (1981), enfd. 664
F.2d 1074 (7th Cir. 1981) (judge compared signatures on
the cards to employment documents to determine authen-
ticity); Naum Bros., Inc., 240 NLRB 311, 320 (1979)
(authentication by handwriting expert.) We find, there-
fore, in agreement with the judge, that the Union had
obtained signed authorization cards from a majority of
the employees as of May 13, 1995, when the Union filed
its petition.24 We also agree that the Respondent’s obli-
gation to bargain attached on May 20, 1994, the date the
Respondent embarked on a campaign of unfair labor
practices,25 and that subsequent unilateral actions taken
by the Respondent—e.g., general wage increases and
layoffs in August and October 1994—therefore violated
Section 8(a)(5.)

20 Specifically, Williamson named as “union leaders” employees
Vivian Fortin, Ronald Casco, Jose Castro, David Rondon, and Albert
Rosado.
21 Supra at 1176, enfd. sub nom. Hotel & Restaurant Employees Lo-
cal 11 v. NLRB, 760 F.2d 1006.
22 We also disagree with the judge’s determination that the threat is
at such substantial variance from the pleadings as to warrant dismissal.
The exchange between Williamson and Jerez was fully litigated—Jerez
recounted the conversation and Williamson denied that there was any
such conversation—and the allegation pled and the violation found are
closely linked. See Baytown Sun, 255 NLRB 154 (1981.)
23 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969.)
We further agree with the judge that a Gissel order is
necessary to remedy the effects of the Respondent’s
unlawful actions. In category II cases26 such as this, the
Supreme Court has stated that the Board “can properly
take into consideration the extensiveness of an em-
ployer’s unfair labor practices in terms of their past effect
on election conditions and the likelihood of their recur-
rence in the future. If the Board finds that the possibility
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 that employee
sentiment once expressed through cards would, on bal-
ance, be better protected by a bargaining order, then such
an order should issue.”27
Taking such factors into consideration, we find, in
agreement with the judge, that the Respondent’s unlaw-
ful conduct, both before and after the election,28 clearly
demonstrates that the holding of a fair election in the
future would be unlikely and that the “employees’ wishes
24 The judge found, and we agree, that the General Counsel estab-
lished that the Union held valid cards from 66 employees of the 102
employee bargaining unit, at least 54 of which were executed on or
before May 13, 1994, the date the Union filed its petition.
25 See Joy Recovery Technology Corp., 320 NLRB 356 fn. 4 (1995),
enfd. 134 F.3d 1307 (7th Cir. 1998.)
26 The Supreme Court in Gissel described a category II case as one
“marked by less pervasive [unfair labor] practices which nonetheless
still have the tendency to undermine majority strength and impede the
election processes.” Gissel, 395 U.S. 613–614.
27 395 U.S. 614–615.
28 In addition to the unfair labor practices found in this case, we find
the bargaining order is further supported by the Respondent’s unlawful
conduct committed proximate to the hearing in this proceeding against
employees who were to provide, or did provide, testimony relevant to
the Respondent’s earlier misconduct. See Parts Depot, Inc., 332 NLRB
No. 65 (2000) (Parts Depot II.) The Respondent’s actions in Parts
Depot II provide additional evidence of its proclivity to violate the Act
and that the chances of holding a fair election are slight.

PARTS DEPOT, INC. 675
are better gauged by an old card majority than by a new
election.”29
As mandated by the Supreme Court in Gissel, we have
examined the extensiveness of the Respondent’s unfair
labor practices and the likelihood of their recurrence in
the future. In this regard, we note that the unfair labor
practices committed by the Respondent in this case in-
clude “hallmark” violations, such as the retaliatory disci-
pline, unlawfully motivated evaluation, and layoff of the
most prominent union supporter, the postelection across-
the-board wage increases, and additional wage increases
based on merit reviews. The Respondent also committed
other serious and pervasive unfair labor practices in its
attempt to discourage support for the Union. These vio-
lations include coercively interrogating and offering to
improve working conditions by discharging the ware-
house manager;30 granting new benefits by posting the
opportunity for unit employees to apply for the position
of warehouse manager and promoting a unit employee to
that position; soliciting grievances by promulgating an
open-door policy; coercively instructing employees to
refrain from supporting the union; unlawfully promulgat-
ing a no-access rule; and threatening employees with
unspecified reprisals.31
The coercive effect of the Respondent’s unlawful ac-
tions is self-evident. These serious violations began the
very day the Respondent learned of union activity at the
facility and continued even after the election, when the
Respondent granted an unprecedented across-the-board
wage increase, reinstituted an effectively dormant
evaluation system for additional merit wage increases,
prepared and issued a fraudulent performance evaluation
and used that evaluation to lay off the most prominent
union supporter.32 These actions sent the clear and un-
mistakable message to employees that if they reject the
Union they will be rewarded but if they support the Un-
ion they will be disciplined and laid off on pretextual
grounds.
The severity of the Respondent’s unlawful conduct is
exacerbated by the involvement of high ranking officials.
See M. J. Metal Products, 328 NLRB 1184, 1185 (1999.)
As found by the judge, the Respondent’s unfair labor
practices emanated from the Company’s chairman and
owner, Rollie Olson, from Bassett, the highest manage-
ment official at the facility, and from his successor, Mark
Noble.33 As the Board has observed in Consec Security,
325 NLRB 453, 455 (1998), enfd. 185 F.3d 862 (3d Cir.
1999) “[w]hen the antiunion message is so clearly com-
municated by the words and deeds of the highest levels
of management, it is highly coercive and unlikely to be
forgotten.” As noted in Parts Depot II, Bassett’s unlaw-
ful conduct persisted into 1996, after he left the Respon-
dent’s direct employ and began consulting for the Re-
spondent.

29 Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1078 (D.C.
Cir. 1996.)
30 The Respondent did in fact discharge its unpopular warehouse
manager, Bill Beaman, within days of learning of the union campaign
in order to discourage support for the Union. See, e.g., Burlington
Times, Inc., 328 NLRB 750, 751 (1999.)
31 These repeated unfair labor practices occurred in the context of the
Respondent’s intensive campaign to deter unionization, which included
30 meetings conducted by Vice President Bassett among groups of
employees during the 50-day period before the election.
32 Twenty-five warehouse employees were laid off or left for other
reasons in August 1994, among them, Ronald Casco, who, like Fortin,
served as the Union’s observer during the election.
The fact, as discussed above, that some of the most se-
rious violations were committed after the election is also
significant. As the Board observed in M. J. Metal Prod-
ucts, supra, “[a]n employer’s continuing hostility toward
employee rights in its postelection conduct ‘evidences a
strong likelihood of a recurrence of unlawful conduct in
the event of another organizing effort.’ Id., at 1185,
quoting Garney Morris, Inc., 313 NLRB 101, 103
(1993), enfd. 47 F.3d 1161 (3d. Cir. 1995.)”
As the Board has also noted, the effects of an unlaw-
fully granted wage increase are particularly difficult to
remedy by traditional means.

Unlawfully granted benefits have a particularly lon-
glasting effect on employees and are difficult to remedy
by traditional means not only because of their signifi-
cance to the employees, but also because the Board’s
traditional remedies do not require a respondent to
withdraw the benefits from the employees. Color Tech
Corp., 286 NLRB 476, 477 (1987.) Further, the bene-
fits unlawfully granted will serve as a reminder to the
employees that the Respondent, not the Union, is the
source of such benefits and that they may continue as
long as the employees do not support the Union.34

The Respondent claims that a bargaining order would
be inappropriate due to turnover in the bargaining unit
since the election. The Respondent presented an offer of
proof at the hearing that, of the 101 employees in the unit
at the time of the election, less than 50 were employed at
the time of the hearing, and points out that Bassett and
Jenkins, who committed many of the 8(a)(1) violations,
33 The judge found that Olson ordered Jenkins to issue disciplinary
warnings to Fortin and ordered Noble to select her for layoff. Bassett
personally committed many of the unfair labor practices before the
election and directed the fraudulent performance evaluation of Fortin,
which led to her layoff.
34 Gerig’s Dump Trucking, 320 NLRB 1017, 1017–1018 (1996),
enfd. 137 F.3d 936 (7th Cir. 1998.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676
have left the Respondent’s employ. We find no merit in
these contentions.
As the Board noted recently in Garvey Marine, Inc.,
328 NLRB 991, 995 (1999):

The Board traditionally does not consider turn-
over among bargaining unit employees in determin-
ing whether a bargaining order is appropriate, but
rather assesses the appropriateness of this remedy
based on the situation at the time the unfair labor
practices were committed. Salvation Army Resi-
dence, 293 NLRB 944, 945 (1989), enfd. mem. 923
F.2d 846 (2d Cir. 1990.) Otherwise, the employer
that has committed unfair labor practices of suffi-
cient gravity to warrant the issuance of a bargaining
order would be allowed to benefit from the effects of
its wrongdoing. These effects include the delays in-
herent in the litigation process as well as employee
turnover, some of which may occur as a direct result
of the unlawful conduct. Thus, the employer would
be rewarded for, or at a minimum, relieved of the
remedial consequences of, its statutory violations.
See Intersweet, Inc. 321 NLRB 1 (1966), enfd. 125
F.3d 1064 (7th Cir. 1997.) Such a result would per-
mit employers, particularly in businesses . . . that
experience significant turnover in normal circum-
stances, to disregard the requirements of the Act
with impunity, with little expectation of incurring
the legal consequences of their violations. In addi-
tion, the Board has noted that a bargaining order’s
impact on employee free choice is limited, because
employees remain free to reject their bargaining rep-
resentative after a reasonable period of time. Poole
Foundry & Machine Co., 95 NLRB 34, 36 (1951),
enfd. 192 F.2d 740, 742 (4th Cir. 1951), cert. denied
342 U.S. 954 (1952.)

Nevertheless, even accepting, arguendo, the facts asserted
by the Respondent concerning employee turnover, we find
that the effects of the unlawful conduct are unlikely to be
sufficiently dissipated by turnover to ensure a free second
election. Although a significant number of the employees
who were employed at the time of the unlawful conduct
surrounding the election may have left the facility for rea-
sons related or unrelated to the Respondent’s unfair labor
practices, others who remain would recall these events.
Moreover, as noted above, the lingering effects of an across-
the-board wage increase and the merit increases are particu-
larly difficult to dispel.35

35 As in Garvey Marine, above, we find distinguishable those recent
cases where the Board has concluded that a bargaining order would
likely be unenforceable given the passage of time since the Respon-
dent’s violations. The delay here—the Respondent’s violations oc-
curred in 1994 and the judge’s decision issued in 1997—although re-
grettable, was due in part to the number of alleged violations and the
size of the record (over 4200 pages of transcript.) Further, such delay
has not been found excessive in prior cases. See Garvey Marine, 328
NLRB 991, 997 (discussing court decisions.) Additionally, as noted
above, fn. 28, we have also taken into account here the Respondent’s
unlawful conduct that occurred proximate to the 1996 hearing in this
case, which is addressed in our decision on exceptions to the judge’s
decision in Parts Depot II.
We conclude that the effects of the serious unfair labor
practices here, which the Respondent commenced imme-
diately upon learning of the union campaign and contin-
ued until it had rid itself of the most prominent union
supporter, cannot adequately be remedied by the Board’s
traditional remedies. Rather we find the circumstances of
this case fully warrant the imposition of a bargaining
order as a necessary and appropriate means of effectuat-
ing the policies of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Parts Depot, Inc., Miami,
Florida, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.

George Aude, Esq., for the General Counsel.
Charles S. Caulkins, Esq. and Kenneth A. Knox, Esq. (Fisher
& Phillips), of Ft. Lauderdale, Florida, for the Respondent.
Brent Garren, Esq., of New York, New York, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
Gissel1 case (Government seeks an order requiring the em-
ployer, PDI, to recognize and bargain with the Union based on
a majority card-showing plus severe unfair labor practices.) On
most major allegations, I find for the Government. A principal
unfair labor practice by Parts Dept, Inc. (PDI) was its discrimi-
nation against Vivian Fortin, the worker who became the sym-
bol of the Union’s organizing campaign. In October, after the
Union lost the July 1994 election, PDI laid off Fortin based
primarily on a fraudulent, as I find, performance evaluation.
Fortin’s industrial execution evokes the memory of verse four
from the 1925 poem by Alfred Hayes, I Dreamed I Saw Joe
Hill Last Night. Gibbs M. Smith, Joe Hill 194 (1969, 1984,
Peregrine Smith Books): 2

And standing there as big as life
And smiling with his eyes,
Joe says, “What they forgot to kill
Went on to organize,
Went on to organize.”

1 NLRB v. Gissel Packing Co., 395 U.S. 575, (1969.)
2 Put to music by Earl Robinson in the 1930s, the poem became the
song, Joe Hill. Edith Fowke, and Joe Glazer, Songs of Work and Pro-
test, 20–21 (1973, Dover Publications.)

PARTS DEPOT, INC. 677
Along with the requested bargaining order, and other reme-
dial provisions, I order PDI to offer full and immediate rein-
statement to Vivian Fortin, and to make her whole, with inter-
est.
I presided at this 24-day trial in Miami, Florida, beginning
April 22, 1996 and closing May 7, 1996. Trial was pursuant to
the September 29, 1995 consolidated Complaint and Notice of
Hearing (complaint) issued by the General Counsel of the Na-
tional Labor Relations Board through the Regional Director for
Region 12 of the Board. By her order of October 11, 1995, the
Regional Director consolidated Case 12–RC–7736 (objections
and challenged ballots) for trial with the complaint case. The
complaint is based on charges filed August 8, 1994 (and later
amended) in Case 12–CA–16449, and on November 10, 1994
in Case 12–CA–16741. The charges were filed by the Amal-
gamated Clothing and Textile Workers Union, AFL–CIO, CLC
(Amalgamated) against Parts Depot, Inc. (PDI, Company, or
Respondent.)
On the first day of the trial, the Government (General Coun-
sel) moved (1:6) to amend the complaint to show the Union’s
name as Union of Needletrades, Industrial and Textile Employ-
ees, AFL–CIO, CLC (UNITE.)3 The Union’s counsel repre-
sented that UNITE was created from the July 1995 merger of
Amalgamated and the International Ladies Garment Workers
Union (ILG.) (1:7.) PDI objected on the basis that the authori-
zation cards involved were those of the Amalgamated, not
those of UNITE, and that any bargaining order, even if other-
wise appropriate, could not issue respecting UNITE. (1:6–7;
6:902–904.) Granting the Government’s motion to amend, I
cautioned that I would reevaluate the matter after reviewing the
posthearing briefs. (6:909.) As noted in a moment, PDI does
not dispute UNITE’s status as a labor organization. In this
decision, I refer to UNITE as the Charging Party or Union.
Later in this decision I find that UNITE is a proper successor to
the Amalgamated. Hence, PDI’s objections are without merit.
In the Government’s complaint, the General Counsel alleges
that PDI (1) violated Section 8(a)(1) of the Act by interroga-
tions, threats, promises of benefits, and other conduct between
about mid-May 1994 and July 1994 (complaint paras. 5 through
10);4 (2) violated Section 8(a)(3) of the Act between about
May 16 and October 27 by various acts, including a July 1994
grant of wage increases, an August 10 layoff of 13 employees,
and the October 27 layoff of Vivian Fortin, (paras. 11 through
16); and (3) violated Section 8(a)(5) by the July wage increases
and the layoffs (complaint paras. 14–17, 22.) Because of PDI’s
conduct described in complaint paragraphs 5-16, which alleg-
edly would render it unlikely that a fair rerun election could be
conducted (the Union was on the short end of a vote count in an
election conducted July 7 and 8, with challenged ballots deter-
minative), the General Counsel alleges (para. 21) that, based on
a majority showing by authorization cards, a bargaining order
should issue.

3 References to the 24-volume transcript of testimony are by volume
and page. Exhibits are designated GCX for the General Counsel’s,
CPX for the Union’s, and RX for Respondent PDI’s. The references
are intended only as an aid, not as an exhaustive listing.
4 All dates are for 1994 unless otherwise indicated.
PDI denies all allegations of wrongdoing, and denies that, in
any event, a bargaining order would be appropriate.
The pleadings establish that the Board has both statutory and
discretionary jurisdiction over PDI, and that Parts Depot, Inc.,
at all relevant times, has been an employer engaged in com-
merce within the meaning of the statute. The parties stipulated
that UNITE is a statutory labor organization. (6:902–903.)
My decision is based on the entire record, including my ob-
servation of the demeanor of the witnesses. The transcript con-
tains a number of errors. In nearly all instances, a correct read-
ing is made possible by the context or even by later references.
PDI filed a motion, dated January 3, 1997, to correct one such
error. As the motion is unopposed and is consistent both with
the context and my own trial notes, I grant the motion to correct
17:2788:3 to substitute “was not laid off” for “was laid off.” At
another point (2:183-184), a statement of mine possibly can be
read as my speaking to the witness, when I actually was ad-
dressing the General Counsel.
The General Counsel filed a motion, dated May 16, 1997, to
reopen the record in order to consolidate, with this case, the
April 28, 1997 complaint in Case 12–CA–18478. The principal
allegation of the new complaint is that PDI discharged Jose
Castro on November 6, 1996 in violation of Section 8(a)(3) and
(4) of the Act. Castro was one of the General Counsel’s wit-
nesses in the instant case. By memo I faxed to counsel on May
22, 1997, I requested all counsel to address certain questions.
Having received no response as of this writing, I assume that
the General Counsel has abandoned the Government’s motion,
and I address it no further.
After consideration of the briefs filed by the General Coun-
sel, the Union (whose brief is limited to certain major issues),
and Respondent PDI, I make these:
FINDINGS OF FACT
A. Procedural Matters
1. Attorney-client privilege
An issue arose at trial concerning whether the Union’s attor-
ney could object on the basis of attorney-client privilege re-
specting questions delving into conversations between counsel
and alleged discriminatees named in the complaint. (3:482.)
Eventually I ruled that the Union’s attorney could so object.
(5:795.) A related question was whether the presence of the
General Counsel at any such conference waived the attorney-
client privilege. Initially I ruled that it did. (3:495–496.) The
Union thereafter argued (4:527, 624) no waiver on the basis of
a common interest [similar to criminal law cases of joint prose-
cution and joint defense, as in In Re Grand Jury Subpoenas,
902 F.2d 244, 248–249 (4th Cir. 1990)]. See, for example,
Sedelacek v. Morgan Stanley Trading Group, 795 F. Supp. 329,
331 (C.D. Cal. 1992); Wilson P. Abraham Construction v.
Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977.) I re-
versed myself and ruled that there was no waiver. (5:795–796.)
The concept is discussed in In Re Grand Jury Subpoena Duces
Tecum, 112 F.3d 910, 922 (and in the dissent at 939–940) (8th
Cir. 1997), and in R. W. Higgason, The Attorney-Client Privi-
lege in Joint Defense and Common Interest Cases, 34 The
Houston Lawyer 20 (No. 1, July-August 1996.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
2. Pretrial rulings not “law of the case”
Several pretrial rulings were made by a different administra-
tive law judge. I refer to these as pretrial rulings by the mo-
tions judge, as distinguished from the trial rulings by me as the
presiding, or merits, judge. By its pretrial motion dated March
28, 1996, PDI sought disclosure of the authorization cards.
Oppositions were filed by the General Counsel and the Union.
By his order of April 3, 1996, Associate Chief Judge William
N. Cates denied PDI’s motion. At trial PDI renewed its mo-
tion. (6:830-834.) Apparently through oversight, these docu-
ments as to the authorization cards were not included in the
formal papers or otherwise introduced as exhibits. Because the
motion as to the authorization cards received some attention
during the trial, I now include copies of the documents in the
formal papers, marking the copies as GCX 1(u) [PDI’s March
28 motion], GCX 1(v) [Charging Party’s April 1 opposition],
GCX 1(w) [General Counsel’s April 2 opposition], and GCX
1(x) [Judge Cates’ April 3 order].
Pretrial rulings and other interlocutory orders ordinarily are
not considered “law of the case” restricting the presiding, or
merits, judge. See Langevine v. District of Columbia, 106 F.3d
1018, 1022–1023 (D.C. Cir. 1997); Sagendorf-Teal v. County
of Rennsselaer, 100 F.3d 270, 277 (2d Cir. 1996); In Re United
States, 733 F.2d 10, 11–13 (2d Cir. 1984) (at 13, quoting Judge
Learned Hand.) There can be exceptions, as stated in In Re Air
Crash Disaster, 96 F.3d 498, 539 (6th Cir. 1996.) Similarly, a
ruling by a circuit court motions panel is not law of the case
restricting the merits panel. Stifel, Nicholas & Co. v. Woolsey
& Co., 81 F.3d 1540, 1543–1544 (10th Cir. 1996.)
When considering motions to renew a pretrial motion al-
ready ruled on by a motions judge, presiding ALJs usually reaf-
firm the pretrial ruling. For example, see Riverdale Nursing
Home, 317 NLRB 881 at 881 (1995), and Harmony Corp., 301
NLRB 578, 587 fn. 9 (1991.) And that is what I did at trial,
citing (4:538; 6:836-837), among other grounds, National Tele-
phone Directory Corp., 319 NLRB 420 (1995) (identities of
card signers who are employees is a forbidden topic for cross
examination.)
3. Jencks5
The General Counsel’s second witness was Office Manager
Luisa Pacheco, an acknowledged supervisor, who was ques-
tioned under FRE 611(c.) (2:152.) When the General Counsel
completed the Government’s direct examination, and passed
the witness, the Union’s attorney, UNITE’s Brent Garren, re-
quested production of Pacheco’s pretrial affidavit in the posses-
sion of the General Counsel. PDI objected. (2:269.) Relying
on the lead case, closest to this point, of Senftner Volkswagen
Corp., 257 NLRB 178, 178 fn. 1, and 186–187 (1981), enfd.
681 F.2d 557, 110 LRRM 3190 (8th Cir. 1982), and arguing
that he needed the affidavit for impeachment purposes inas-
much as the Union would be arguing that Pacheco had pre-
sented a pretextual case against alleged discriminatee Vivian
Fortin, the Union contended that it was entitled to production of
Pacheco’s affidavit under the rationale of Senftner. (2:269,
271, 275–276.) The General Counsel agreed with the Union.
(2:277, 280.)

5 See Jencks v. U.S., 353 U.S. 657 (1957); 18 USC 3500; Delta Me-
chanical, 323 NLRB 76, fn. 3 (1997.)
Noting that the situation was something of a hybrid (2:274,
276), and also observing (2:273) that the situation was not any
kind of hypothetical sham effort by the Government to call a
witness, ask a couple of questions, and then pass the witness
just so the Union could ask for the affidavit (I stress the ex-
tremely hypothetical nature of such a possibility), I ruled that
Pacheco’s affidavit should be produced. (2:280.) After certain
redactions were made by the General Counsel, the Government
produced Pacheco’s affidavit. (2:283.)
I reaffirm my ruling. The Board’s Rule, 29 CFR
102.118(b)(1), calls for such production after a witness has
been called by the General Counsel. In practice the rule has
been interpreted as not including production, to a charging
party, of affidavits of friendly witnesses called by the Govern-
ment because the charging party (who usually already has a
copy of those affidavits) is not in the position of needing to
impeach a friendly witness. The rationale of Senftner Volks-
wagen is that a charging party, being a full party, is entitled to
production when the circumstances suggest that the charging
party may need to impeach the witness. There is no doubt that
the Union here needed to impeach Pacheco—an adverse wit-
ness to both the General Counsel and the Union—for Pacheco’s
testimony, if credited, would severely damage Fortin’s case.
As Judge Robert E. Mullin wrote in Senftner, Section 102.118
of the Board’s Rules “is not to be read as denying a charging
party the right to a pretrial affidavit, but rather to be read as
making clear the right of a respondent to have access to such an
affidavit in the possession of the General Counsel.” Senftner,
id. at 187. Accordingly, I reaffirm my trial ruling granting the
Union’s motion for production of the pretrial affidavit of the
General Counsel’s FRE 611(c) witness, Luisa Pacheco.
4. Forged documents and courtroom experiments
As discussed later in more detail, the Union called Lillian
Newman, as a handwriting expert, for the purpose of establish-
ing the genuiness of certain union authorization cards by com-
paring the card signatures with the signatures on W-4 forms or
other exemplars. Although my summary here is a bit lengthy,
the issue discussed affects a substantial portion of the case.
During PDI’s cross-examination of Newman, PDI, over ob-
jection (16:2531) by the Union, showed the witness an uniden-
tified document (RX 13.) Newman testified that, in her opin-
ion, the same person who signed RX 13 also signed GCX 35,
CPX 8, and GCX 12–52. (16:2532-2533.) PDI did not then
offer RX 13. On its face, RX 13 appears to be a PDI payroll
form (“Employee Open Account Agreement”), dated Novem-
ber 6, 1993, and signed by Robert Alegria. At the conclusion
of Newman’s testimony, and still not satisfied that Alegria’s
purported authorization card (GCX 12–52) had been authenti-
cated, I rejected it and granted the requests of the General
Counsel and the Union that GCX 12-52 be placed in the re-
jected exhibits file. (16:2585; 17:2598.)
On the last day of trial, and near the close of its own case in
chief, PDI called William “Wayne” Black as a witness. A li-
censed private investigator, Black operates his own Florida
firm, Black & Associates. (23:4098.) The evening of Septem-

PARTS DEPOT, INC. 679
ber 16, some 3 weeks before his October 8, 1996 testimony,
Black, apparently by prearrangement, went to the office of
PDI’s attorney, Charles S. Caulkins. Supplied a purported copy
of the W-4 form of Robert Alegria (whom Black does not
know), Black practiced Alegria’s signature three or four times
before forging Alegria’s signature on a blank PDI form and
then completing the balance of the form. Black testified that he
would be able to identify the document which he had forged
some 3 weeks earlier in the lawyer’s office. (24:4098–4099.)
At that point the Union objected that the matter was irrele-
vant because Alegria’s card was not in evidence. Apparently
adopting (“Also”) the Union’s relevance objection, the General
Counsel additionally objected on the basis that it would be
improper to allow such testimony when Newman, the Union’s
handwriting expert, had not been confronted with this informa-
tion on cross examination and given the opportunity to respond.
(24:4099.) I then excused witness Black and inquired as to the
purpose of Black’s testimony. Informed that the purpose was
to impeach Newman by Black’s testifying that it was he (not
Alegria) who had signed RX 13, I ruled that I would not permit
such evidence because it violated federal courtroom procedure
in that it was an experiment not taken in “open court” using
“planted” evidence, “And I won’t permit it.” (24:4100-4101.)
Respondent’s offer of proof (that Black would identify RX
13 as being in his hand) was supported by PDI’s four-fold ar-
gument urging receipt of the evidence. First, Black’s testimony
shows that Newman’s testimony is untrustworthy and confirms
PDI’s earlier motion (16:2408) that Newman not be permitted
to testify as an expert. Second, Black’s testimony is offered to
show that Newman, as an expert, is not competent. Third, that
all cards admitted based on Newman’s testimony should be
rejected. Fourth, it is not appropriate for the ALJ to authenti-
cate authorization cards by comparing the signatures on them to
those on W-4 forms. (24:4101-4102.) Unpersuaded, I reaf-
firmed my ruling, denied the motion to permit Black to so tes-
tify, and, on request, placed RX 13 in the rejected exhibits file.
(24:4102.)
After a conference call I held with the parties on October 10,
1996, PDI filed its motion of October 24, 1996 that I reconsider
my ruling. I did so, and by order (which, at PDI’s request, I
now insert in the record as RX 50) dated December 3, 1996, I
reaffirmed my trial ruling.
In their arguments on PDI’s motion for reconsideration, the
parties argued forcefully. Respondent PDI cited law texts in
support of its argument that its courtroom test of Newman was
proper: McCormick, Evidence Section. 215 at 24 (4th ed.
1992); Weinstein’s Evidence Section. 901(b)(3)[03] at 901-53
(1991); and Graham, Handbook of Federal Evidence, Section.
901.3 at 700 (4th ed. 1996.) The Union cited cases such as
State v. Maxwell, 102 P.2d 109, 115 (Kan. 1940) which hold
that only genuine specimens may be used during cross exami-
nation to test the witness. In any event, these authorities, and
others cited by Respondent and the Union, acknowledge, even
assert, that the test must be fair. And even the authorities al-
lowing the cross examiner to use false documents in such a test
provide, as stated by one case cited by PDI, that “the scope and
limit of such cross-examination must be left largely to the dis-
cretion of the trial court whose ruling will be rarely disturbed.”
Adams v. Ristine, 122 S.E. 126 (Va. 1924.)
My trial ruling refers to federal courtroom procedure. An
example of that authority is reflected in Rule 19 Appendix C,
rule L, of the Local Rules, United States District Court, South-
ern District of Texas. As published at 1994 Texas Rules of
Court−Federal 315, 321, 326–327 (West Pub. Co. 1994), rule L
provides:

L. Conduct no experiment or demonstration without
permission.

Before embarking on his courtroom experiment (presenting a
false document to witness Newman to test her competence as a
handwriting expert), counsel for PDI did not first request a
bench or chambers conference in order to seek permission to
conduct such an experiment. At such a conference the General
Counsel and the Union would have had the opportunity to sug-
gest fairness safeguards. These may have included either
advising Newman that RX 13 was a questioned document
rather than an admitted specimen, or that Black submit one or
more forged signatures on some other form, even blank sheets
of paper, rather than on a company form. Or it may be that,
after discussion and argument, I would have approved the
procedure which PDI contemplated and attempted.
Evidence obtained either secretly or without notice is pre-
sented all the time in trials. Examples include secretly made
tape recordings of telephone or face-to-face conversations, or
recordings secretly made of a manager’s statements at group
meetings. There are many such NLRB cases. EEOC cases
involving “testers” occasionally are in the news. There are
“salting” cases and police “sting” operations. The list no doubt
could be extended. All these examples, however, involve evi-
dence developed outside the courtroom and presented to the
trier of fact. The “sting” does not include using (without per-
mission) the courtroom.
The point is that PDI’s counsel, an officer of the court,
sought to bypass the presiding judge during a trial in order to
conduct an experiment with a witness. No party may so do.
Although rule L, quoted above, is not a regulation of the Board,
it is consistent with traditional Board procedure. After consid-
ering the arguments presented, I reaffirmed my trial ruling, and
I denied PDI’s motion that I reopen the trial to receive Black’s
testimony and RX 13. On brief (at 91) PDI adds an additional
ground—that my ruling was fundamentally unfair because it
imposed a “discovery-like requirement of advance notice” re-
garding Black’s testimony after PDI had cooperated with the
Government during the investigative stage of the case and pro-
vided discovery materials with no discovery in return. Finding
that comparison misapplied here, I reject it.
In any event, I adopt here the following lines from my order
of December 1996 (RX 50 at 5):

Additionally, as the General Counsel and the Union
argue, the matter is mostly irrelevant because Alegria’s
purported authorization card resides in the rejected exhib-
its file. PDI therefore seeks to impeach Newman overall
based on the proposed impeachment as to a collateral is-
sue. Newman’s expertise is not a collateral issue, but that
expertise may not be attacked through rejected evidence.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680
B. PDI’s Operations and Senior Management
A Florida corporation (GCX 17), with its corporate office at
Roanoke, Virginia (2:237), PDI sells automotive replacement
parts (the “after-market”) at wholesale (20:3486–3487) from 11
warehouses, or distribution centers, located from Maine to Flor-
ida (17:2734.) Of the 11 warehouses, 4 are “full service” op-
erations—“host” or primary warehouses that ship. The remain-
ing seven are smaller satellite, or branch, warehouses where
customers pick up (“pick-up” facilities) their orders. The four
host warehouses are located at Westbrook, Maine; Roanoke,
Virginia; Tampa, Florida, and Miami, Florida. (17:2734.)
Only two of the facilities are involved here—Miami (a primary
warehouse) and Ft. Lauderdale (a branch.) As I discuss in more
detail later, in July 1994 the two facilities employed slightly
over 100 employees.
PDI’s November 1991 Employee Handbook reports that PDI
has been in business since the early 1950s and that, in 1986,
Rollance E. (Rollie) Olson purchased the company. (RX 40 at
3.) Olson’s title at PDI is Chairman. (RX 40 at 1; 20:3525-
3526.)
Peter Bassett has a major part in this case. During May-
September 1994 Bassett was president of PDI’s Florida Divi-
sion and was a corporate vice president. (11:1816; 17:2659;
20:3486, 3844; 23:4082, Bassett.) For some time, unspecified
in the record, Chairman Olson had also been serving as PDI’s
president (20:3526), and was the person to whom Bassett re-
ported (22:3868.) Bassett transferred to the corporate head-
quarters at Roanoke, Virginia about September 1994.
(22:3832, 3844; 23:4082.) Under Bassett, the Florida Division
consisted of a primary (host or full service) warehouse in Mi-
ami and one in Tampa, with branch warehouses in Ft. Lauder-
dale, Ft. Myers, and Orlando. (20:3486.) Between his designa-
tion on the first day of trial (April 22, 1996) as PDI’s desig-
nated assistant exempt from sequestration (1:60), and his brief
testimony as my witness on August 26 (11:1815), Bassett had
left his employment with PDI. (11:1816.)
Before September 1994, Mark Noble was the corporate Vice
President of Northern Operations for PDI. He was the counter-
part to Bassett who held the same corporate position for the
Southern Operations. (17:2735, 2820, Noble.) Noble’s terri-
tory consisted of Roanoke, Virginia and Westbrook, Maine, and
their branch warehouses. (17:2735.) About June 1, 1994, give
or take a week or so, PDI hired Al Woods as its new president.
(17:2736, 2820; 22:3923.) Woods restructured PDI’s manage-
rial format from geographical to functional. As a result of the
restructuring, in September 1994 Noble became Vice President
of [all] Warehouse Operations, and Bassett was transferred to
the Roanoke headquarters as a vice president there. (17:2733–
2736, 2785, 2820.) As I discuss later, Woods reportedly con-
cluded that PDI was overstaffed and unproductive. To improve
PDI’s bottom line, Woods sought cost reductions in methods
and payroll. (17:2737–2740, Noble; 22:3923-3924, 3929–
3934, Bassett.) The first axing of Miami personnel occurred
about August 11 when 25 employees were cut from the payroll.
(23:4072, Bassett.)
C. The Union Organizing Campaign
1. Overview
On May 13, 1994 the Amalgamated, by Florida District Di-
rector Monica Russo, filed a petition (GCX 4) in Case 12–RC–
7736 to represent PDI’s Miami warehouse employees and driv-
ers. (1:92-93; 6:850.) When the parties assembled for the June
1 representation hearing, they signed a stipulated election
agreement (GCX 17) providing for an election to be conducted
July 7 and 8, 1994 (5:760) in the following stipulated unit:

All warehouse employees, customer service employees, truck
dispatcher, and drivers employed by the Employer at its Mi-
ami and Ft. Lauderdale, Florida warehouses, excluding office
clericals, technical employees, professional employees, su-
pervisors, and guards as defined by the Act.

When the voting was complete on July 8, and the ballots
counted, the Union was behind 46 (against) to 40 (for), but the
13 challenged ballots were determinative. The Union filed
objections. (GCX 1(k) at 2.) Eventually, on October 11, 1995,
the Regional Director issued an order (GCX 1(k)) directing a
hearing on the objections and challenged ballots and consoli-
dating for trial the representation case with the two unfair labor
practice cases involved here.
The Union’s organizing began the evening of Monday, May
9, 1994 when Monica Russo met with several of PDI’s employ-
ees at the Tip Top Cafe. (1:71; 5:704; 6:843; 15:2262.) At that
meeting Russo spoke, cards were signed, and the Union’s orga-
nizing campaign was launched. According to Bassett, he did
not learn of any organizing activities until May 11 when Ware-
house Manager Bill Beaman told him there were rumors in the
warehouse that union authorization cards were being signed.
(20:3528; 22:3876, 3884.) When the employee organizers
expressed concern to Russo that someone was reporting events
to management, Russo prepared (1:75-76; 6:845-846, 849), and
Ronald Casco (6:942–943; 8:1248) assisted with the translation
for the Spanish version, a May 12 letter (GCX 2a,b), signed by
several employees, announcing to Peter Bassett and to PDI that
a majority of the Miami employees had signed cards for the
Union, and alerting PDI that the employees were aware of their
rights under federal law. A supplemental letter (GCX 2c,d)
was prepared a week later. The exact date or dates of delivery
of these letters is not shown in the record. However, the parties
stipulated that the May 12 English version was received by PDI
sometime in May 1994. (1:79, 83.)
On receiving a copy of the Union’s petition on Monday, May
16, Peter Bassett promptly contacted his business lawyer.
(20:3569.) [Bassett so testified, but I later make certain find-
ings which qualify that testimony.] That contact resulted in
attorney Charles Caulkins meeting that evening with Bassett
and other managers and supervisors. (18:2842, 2918; 20:3375,
3417, 3570; 23:3947.) At this meeting attorney Caulkins in-
structed management on how managers and supervisors were to
conduct themselves during a union organizing campaign. The
“Don’ts” portion of the instructions is known by the acronym
“TIPS,” meaning do not (in the verb form): Threaten, Interro-
gate, Promise, or Spy. (20:3376.) From papers attorney
Caulkins distributed, Bassett, without changing the contents,

PARTS DEPOT, INC. 681
copied the TIPS instructions and examples onto a memo form
(RX 41) bearing the PDI logo. (20:3589, 3624, 3635.) About
late May, in conjunction with a second TIPS meeting, which he
conducted with managers and supervisors, Bassett declared
TIPS to be a statement of company policy. (20:3589.)
The next day, May 17, Bassett delivered a prepared speech
(RX 32), in sessions, to groups of employees. (20:3570-3573.)
This was the first of five speeches which Bassett delivered to
employees before the July election. (20:3610.) Bassett deliv-
ered the other four prepared-text speeches on: June 14 (RX
33); June 22 (RX 34); June 29 (RX 35); and July 6 (RX 36.)
Beginning with his second speech, Bassett also showed four
videos, one set in English (RXs 15-18) and one set in Spanish
(RXs 19-22.) All the speeches were interpreted for the benefit
of Spanish-speaking employees. Copies of the texts (English
and Spanish) of Bassett’s five speeches are in evidence (RXs
32-36, English), as are transcripts (RXs 23-26, English) of the
statements on the four videos.
Copies of the videos themselves are not in evidence. The
copyright owner, Projections, Inc. of Norcross (Atlanta), Geor-
gia, refused Bassett’s request that PDI be permitted to purchase
copies of the videos for the record. (17:2667, 2670; RX 14.) I
granted (21:3756) Projections’ petition to revoke PDI’s sub-
pena duces tecum. Over objection by the General Counsel and
the Union, I received in evidence transcripts of the videos.
(23:3960, 4058.) The complaint does not expressly attack any
part of the prepared texts or videos. At trial the General Coun-
sel stated that the complaint attacks what was said. (23:4056-
4058.) The parties dispute what was said. So far as the record
shows, neither PDI nor any employee tape recorded any of the
meetings at which Bassett spoke and showed the videos.
2. Objections
Before trial the Union withdrew 3 of its 17 objections (GCX
1(k) at 3), and at trial it withdrew several others (1:15-16), ex-
cepting Objection 16(a), for the purpose of expediting the pro-
ceeding by leaving as pending only those objections which
(aside from 16a) parallel allegations in the complaint. (1:15-
16.) Although the Union did not specify Objection 17 (“other
acts”) among those enumerated as withdrawn, I find that to
have been mere inadvertence in light of the purpose of the
withdrawal, and I therefore find that the Union also withdrew
Objection 17.
Objection 16(a) pertains to a ballot (CPX 1.) Because the
ballot was marked in both the Yes and No squares, the Board
agent counted it as a No vote. The Union’s representative ob-
jected. (6:917.) I later discuss Objection 16(a.)
3. Challenged ballots
At trial the Union and PDI resolved the challenged ballots by
the following agreed disposition:
1. The Union withdrew its challenge to the ballots of Sook-
deo Choon, Diane Hinton, and Jack Hinton Jr., and their ballots
shall be counted. (24:4198.)
2. The voter eligibility list (GCX 5) should have contained,
as eligible voters, the names of Otilio Delvie, Zenaida Requejo,
and Annia Vigos. (24:4198–4199.) Thus, their ballots shall be
opened and counted.
3. The names of Roberto Duarte, Ruben Garcia, Antonio
Rodriguez, and Sergio Ruiz should have been included on the
voter eligibility list (the “VEL”.) (24:4200.) As they did not
vote, however, even on challenged ballots (24:4200), they have
no challenged ballots to open and count.
4. Finally, challenges are sustained and the challenge enve-
lopes shall not be opened nor the ballots counted respecting
Glenis Alleyne, Donnette Hawley, Elizabeth Kent, Robert Or-
tega, Wallace Penzing, Manuel Rodriguez, and Cheryl Town-
send. (24:4200–4204.)
D. Credibility Resolutions
As the following findings reflect, I do not totally credit the
witnesses of one side over the witnesses of the opposing side.
The Government’s employee witnesses seemed quite sincere,
and, except as to Bassett’s speeches, I generally credit them.
E. Alleged 8(a)(1) Coercion
1. Introduction
Complaint paragraphs 5 through 10 describe incidents of
conduct by five managers or supervisors. The complaint al-
leges that such conduct violated Section 8(a)(1) of the Act. In
the great majority of instances, Florida Division President Peter
Bassett is named, in paragraph 5, as the perpetrator. Bassett
allegedly began about May 9 by interrogating employees, and
quickly progressed to threats, both implied and express, and to
other alleged violations.
Fleet Supervisor Robert Williamson is named in Complaint
paragraph 6 as committing three violations, Office Manager
Luisa Pacheco one (par. 7, a threat), Leonel Belaunzaran, Bea-
man’s successor, one (par. 8, a threat), and Supervisor Hector
Ortiz, two (pars. 9 and 10, a threat and an offer of benefit.) PDI
denies.
2. Peter Bassett’s individual conversations
a. May 9 and 12, 1994
(1) Introduction
Complaint paragraph 5(a) alleges that, about May 9 and 13,
1994 at PDI’s Miami warehouse, Bassett “interrogated employ-
ees about their support for, and activities on behalf of the Un-
ion.” Paragraph 5(b) alleges that, about May 9, Bassett “impli-
edly threatened employees with warehouse closure if they se-
lected the Union as their collective bargaining representative.”
Driver Jose Castro testified in support of paragraph 5(a), and
alleged discriminatee Vivian Fortin testified in support of para-
graph 5(b.) The General Counsel also relies on the Fortin con-
versation to support complaint paragraph 5(c) which alleges an
offer to improve working conditions for employees “if they
withdrew their support for the Union.”
(2) Jose Castro
(a) Facts
During the first part of May 1994, Castro’s direct supervisor
was Fleet Supervisor Robert Williamson. (12:1832; 20:3373.)
In turn, Williamson reported to the warehouse manager, Bill
Beaman. (18:2953; 22:3847-3848.) Beaman reported to Op-
erations Director Jack Jenkins. (18:2954; 22:3845.) Jenkins
reported directly to Bassett. (18:2954; 22:3845.) Bassett dis-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682
charged Beaman on May 13. (20:3530; 22:3844; 23:4029.)
Beaman’s departure soon became common knowledge, and
receiving clerk Leo Belaunzaran, who had been the warehouse
manager at his former employer, submitted his resume to Op-
erations Director Jenkins. Belaunzaran interviewed with Hu-
man Resources Director Robert Tennant (Belaunzaran told
Tennant he had signed a union card) and then with Bassett.
About May 25, Florida Division President Bassett promoted
Belaunzaran to Miami’s vacant warehouse manager’s position.
(18:3035, 3044–3048, 3106-3108, 3115.)
Shortly after 9 the morning of May 9, driver Castro testified,
Bassett called Castro into his office. Already present were
Operations Director Jenkins and Office Manager Pacheco.
Bassett spoke to Castro in English, and Pacheco interpreted the
conversation. (11:1777–1779, Castro.) Through Pacheco as
the interpreter, Bassett asked Castro what was happening be-
tween Bill Beaman and the drivers. “Nothing” as between
Beaman and the drivers, Castro responded, but it was “the
whole warehouse, the whole company, who did not want to
know anything about Mr. Bill Beaman.” [By his answer, Cas-
tro apparently meant that the employees viewed Beaman as an
unjust manager and wanted nothing to do with him.] Bassett
told Castro not to worry about Beaman’s firing anyone or dis-
ciplining employee because henceforth he, Bassett, would make
the [personnel] decisions. (11:1779–1780.)
Bassett then asked Castro if he knew something about the
Union. Castro replied that he knew nothing. “Remember what
happened to Eastern Airlines,” Bassett responded. “Because
they let the union in, they went bankrupt.” Castro said that
Eastern had gone bankrupt because of the high salaries the
employees were making, and that if employees at PDI received
better treatment or better salary, perhaps the union would not
come in. (11:1780.)
I do not credit Bassett’s denial. (20:3526–3527.) I note that,
although he denies referring to Eastern Airlines during this
meeting (22:3883), Bassett concedes (22:3884) making the
reference during one of his speeches. That was Bassett’s fourth
speech (RX 35), delivered in Miami on June 29, 1994.
(21:3733.) As the text records, Bassett there stated (in referring
to a news article about some 700 striking members of the
Amalgamated in New Jersey who had been permanently re-
placed) (RX 35 at 7):

This is one specific example of what can happen with
unions.
We have seen this before right here in our community.
Everyone remembers Eastern Airlines.
It has devastated not only the jobs that were directly
provided by Eastern but all of the other businesses that
used to be up there on 36th Street. We all know people in
this community who were devastated.

Jenkins did not address the incident when he testified.
Pacheco denies being present at any conversation between Bas-
sett and Castro regarding the Union, denies interpreting at any
such conversation or any conversation mentioning Eastern Air-
lines, and denies interpreting for any conversation between
Bassett and Castro during any part of 1994. (19:3247-3248,
3289-3290, 3311.) Pacheco, who interpreted at the June 29
speech (19:3234; 21:3741), and signed a form to that effect
(19:3232-3234; 21:3741-3742), also testified, on cross-
examination by the Union (19:3312):

Q. Now, did you hear Mr. Bassett talk to any other
employee about Eastern Airlines?
A. No.
Q. Did you hear Mr. Bassett talk to any other em-
ployee about unions and companies going bankrupt?
A. No.
Q. Did you hear Mr. Bassett talk to any other employ-
ees about that unions devastated Eastern Airlines?
A. No.
Q. Did you hear Mr. Bassett talk about the effect on
the entire Miami area of unions putting Eastern Airlines
out of business?
A. No.
Q. And, again, I’m not talking about exact words here
but the content.
A. I understand, but no.
Q. You never heard that?
A. No.

In giving her quoted answers to the first two questions,
Pacheco possibly could have been thinking in terms of individ-
ual conversations rather than Bassett’s speech to sessions of
assembled employees on June 29. Still, it would seem that on
the third and fourth questions she would have recalled Bassett’s
June 29 comments about Eastern Airlines. In any event, I
credit Castro.
The portion of Bassett’s version which I do credit is that
even before May 9 he had received hints from employees that
Beaman was mistreating (“causing problems with”) drivers and
warehouse employees. (20:3522; 22:3875.) Not until Bassett
associated the presence of the Union with Beaman’s mistreat-
ment of employees, I find, did Bassett decide to fire Beaman.
In crediting Castro, I have not overlooked PDI’s argument
(Brief at 44) that Bassett could not have mentioned the Union
the morning of May 9 when it was not until that evening that
the Union held its first card-signing meeting with employees.
Before any such meeting is held, however, there are prelimi-
nary events. On that point the evidence is rather brief. Union
Representative Monica Russo testified that in (early) May 1994
she was contacted by Fernando Cribeiro, a union member who
worked for a company other than PDI. Cribeiro, it appears,
worked with the father of PDI driver Osberto Jerez. Cribeiro
told Russo that some employees wanted to inquire about getting
a union at PDI because, in their view, the employees at PDI had
a lot of problems. Russo told Cribeiro to arrange a meeting.
The first meeting was held the evening of May 9, 1994 at the
Tip Top Restaurant. (1:70–71; 6:842; 15:2262.) Former
(13:2092) driver Osberto Jerez testified that he helped arrange
the meeting. (13:2110.) Former (12:1876) warehouse em-
ployee Roberto Duarte testified that coworkers told him about
the Union and invited him to attend the first meeting on May 9.
(12:1878, 1880, 1969.) Although the timing is short, it clearly
is possible that supervision heard about the discussion of a first
union meeting and reported this up the management chain to
Bassett. Thus, when Bassett asked his question of Castro the

PARTS DEPOT, INC. 683
morning of May 9, he already knew more about the union or-
ganizing than did Castro.
PDI also argues (Brief at 44) that Bassett’s supposed remarks
about Eastern Airlines do not withstand scrutiny because the
timing is artificial since Bassett did not refer, in his speeches, to
Eastern until his fourth speech, the one on June 29, and the
context of the May 9 conversation does not fit with any refer-
ence to Eastern Airlines. But the context does fit. After having
assured Castro that he need not worry about Warehouse Man-
ager Beaman, Bassett simply wanted to capitalize on this open-
ing in order, first, to interrogate for information, and then to
plant the first seed for doubt about the wisdom of bringing in a
union. Indeed, that doubtlessly was why Bassett called Castro
into his office in the first place. I credit Castro.
(b) Discussion
Bassett’s May 9, 1994 interrogation of driver Castro would
tend to be coercive. Not only was the situation three managers
to a single employee, and in Bassett’s office, but Bassett was
PDI’s highest ranking Florida official—four levels above Cas-
tro. Moreover, there is no evidence that Castro was wearing
any union insignia or had openly declared himself in favor of
the Union or of any union. It was not until the following day,
May 10, that Castro signed an authorization card (GCX 12–35)
for the Union (11:1777, 1781; 12:1843), and he was one of
several employees who signed the letters (GCX 2a–2d, English
and Spanish), dated May 12 and 19, to Bassett announcing the
Union’s organizing drive. (11:1786; 12:1841.)
By his question, Bassett sought to obtain information about
the extent of the Union’s organizing, and this was followed by
the statement about Eastern Airlines. Had Bassett posed the
question during an individual conversation on the loading dock,
there possibly would have been no violation. Under the cir-
cumstances of three on one in the office of the president of the
Florida Division, with an employee who in fact had not signed
for the Union and was not an open advocate for the Union,
Bassett’s question was coercive. PDI, I find, violated Section
8(a)(1) of the Act by Division President Peter Bassett’s May 9,
1994 interrogation of driver Jose Castro, as alleged in com-
plaint paragraph 5(a.)
Contrary to complaint paragraph 5(b), I find no implied
threat of plant closure in Bassett’s reference to Eastern Airlines.
Castro himself connected the bankruptcy to high salaries, not to
any sophisticated action by Eastern Airlines to deplete assets
and file for bankruptcy in some devious scheme to escape its
unions. Thus, an employee such as Castro would not reasona-
bly have understood Bassett to be implying that PDI would act
unilaterally in a manner to cause bankruptcy, and close, in
some suicidal effort to escape the Union. I therefore shall dis-
miss complaint paragraph 5(b.)
(3) Vivian Fortin
During much of 1994 Vivian Fortin was working as a cus-
tomer service representative primarily handling the Metro Dade
account. On May 10 Fortin signed (8:1330, 1372; 9:1388,
1508) a union authorization card. (GCX 12–20.) About May
12, around 7:30 a.m., Bassett summoned Fortin to his office.
Once Fortin was there, Bassett asked whether she had heard
any union rumors. “Yes,” she replied. To Bassett’s inquiry of
what he could do to stop the Union, Fortin said she did not
know. Would getting rid of (warehouse manager) Bill Beaman
stop the Union, Bassett asked. Again Fortin said she did not
know. The conversation apparently ended at that point.
(8:1330–1331; 9:1542–1543.)
I do not credit Bassett’s version that he had two conversa-
tions with Fortin, one on May 10 and a second on May 12, and
that in the latter he told Fortin he had decided to terminate
warehouse manager Beaman and that there was union organiz-
ing in the facility. (20:3521-3525, 3529-3530; 22:3876-3881.)
As I summarize later, Fortin soon became open, obvious, and
very public in her support of the Union. But all that came after
May 12. Thus, Bassett was unaware that Fortin had signed a
union card when he met with her on May 12. Bassett had spo-
ken with Fortin many times over the years. He “trusted” Fortin.
(20:3524.) The General Counsel (Brief at 93-94) advances no
theory on how the conversation can be characterized as a coer-
cive interrogation. Finding no coercion, and no violation of
Section 8(a)(1), I shall dismiss complaint paragraph 5(a) re-
specting the May 13, 1994 date (the May 12 conversation.)
Respecting complaint paragraph 5(c), the offer of benefit, I
agree with the General Counsel (Brief at 101) that Bassett’s
inquiry of Fortin whether the union movement could be stopped
if Bassett got rid of warehouse manager Beaman (the major
cause for the employees seeking out the Union) constitutes an
unlawful offer to improve working conditions in violation of
Section 8(a)(1), as alleged. I so find.
3. Bassett’s speeches
a. Introduction
To address Bassett’s speeches, the General Counsel pre-
sented six employee witnesses: Ronald Casco, Jean Claude
Demosthene, Ronaldo Hernandez, Aundrai D. McGregor, Al-
bert Rosado, and Angela O. (Lampin) Wilson. PDI countered
with the testimony of Peter Bassett (former Florida Division
President), Jack Jenkins (former Operations Director), Office
Manager Luisa Pacheco, Warehouse Manager Leo Belaunzaran
(a receiving clerk until about May 25, 1994), and nonsupervi-
sory employees Beverly Johnson (a warehouse supervisor dur-
ing the relevant time), Sarah Mitchell, Barbara Shaw, and
Ernest Thomas. Other witnesses called by the parties made an
isolated reference to matters pertaining to the speeches.
Memories of Bassett’s speeches were adversely affected by
the passage of time between May-July 1994 and the April 1996
start of the trial in this case. Indeed, some of PDI’s witnesses
did not testify regarding the speeches until October 1996. As
noted, it appears that no one tape recorded any of the speeches
and videos. Aside from the written texts of the speeches, and
the transcripts of the video narrations, and the notations on
cover pages by management attendees such as Jenkins, verify-
ing that the speeches were delivered as written, no contempora-
neous notes were made by any witness. Although privately
rehearsing for his first speech, Bassett thereafter rehearsed his
speeches with his management team before addressing the em-
ployee groups.
For the speeches PDI arranged staggered sessions with em-
ployees usually numbering from 10 to 20 per group. For each
of his five speeches, Bassett addressed some half dozen ses-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 684
sions of employee groups. Although no employee attendance
roster was prepared for any of the speeches, speeches two, four,
and five have attached, to the exhibits, lists of employees
scheduled to attend that speech. Because of production needs
or other problems, changes were made. Even though the lists
are not fully reliable as attendance rosters, they add some con-
firmation to testimony about names of attendees.
As earlier noted, Bassett delivered his five speeches, and
showed the four videotapes, as follows:

Speeches Video Titles
1. May 17, 1994
2. June 14, 1994 Promises, Promises, Promises
3. June 22, 1994 2. Let’s Make A Deal
4. June 29, 1994 3. Job Security—Union Style
5. July 6, 1994 4. 25th Hour

Bassett testified that he wrote the speeches in advance, typ-
ing them on his computer using WordPerfect plus other soft-
ware titles. (20:3571, 3605-3607, 3634; 21:3727; 23:4039.)
By the rehearsals with his management team, Bassett polished
his delivery and elicited questions which might arise during the
speeches. (20:3573, 3587.)
Bassett is very experienced at public speaking, dating back
to his being a reader at his church and extending through ad-
dresses to various industry associations, forums, and commit-
tees. (20:3587-3588.) Experienced using the TelePrompTer,
Bassett strove to simulate use of a teleprompter in delivering
these speeches to PDI’s employees. Thus, he used a large type
font and, attempting to improve on his WordPerfect techniques
after the first speech, sought to use the top half of the page so
that, when glancing at the written text, his head and eyes would
not have to bend toward the bottom of the page. Bassett
wanted to avoid the appearance of “bland reading.” (20:3606-
3607.)
As the exhibits reflect, Bassett was successful only about
half the time in keeping the text on the top half of the pages.
Despite Bassett’s reputation as a computer “guru” (20:3634)
because of his knowledge of computer programs, his expertise
does not include one item of basic computer skill—knowing
how to insert a page break. (23:4039-4042.) The only rele-
vance here of this fact is that it bears on Bassett’s assertion that
certain gaps in the speech texts are not the result of after-speech
tampering, but the result of his starting new pages by pressing
the Enter key to “drive down” or “force down” the next line to
the top of the next page where he would begin the next para-
graph. (21:3732; 23:4039-4041.) While the bigger gaps are at
the bottom of some pages, some small gaps appear elsewhere.
The steps Bassett took enabled him to deliver the speeches
without actually reading from the script in his hand. He would
glance at the page and back to the audience, in the fashion of
using a teleprompter. (20:3606.) At trial Bassett twice demon-
strated his skill at this process. (21:3765-3770; 23:4075-4077.)
His demonstrations suggest that, in making a public speech,
Bassett indeed is skillful in maintaining eye contact with the
audience between glances at a prepared script.
Other than a few testimonial references to the images shown
on the videos, the transcripts of the videotapes constitute our
only evidence of the content of the videotapes. Repeating my
earlier statement, copies of the videos themselves are not in
evidence. As also noted earlier, the General Counsel explained
that the Government attacks what was said. (23:4056–4058.)
On brief the General Counsel and the Union, relying on the
testimonial evidence to argue deviation from the written texts,
make no contention that the texts of the speeches (and, indeed,
of the transcripts of the videos), even as written, constitute,
overall, a threat of loss of jobs in the event of unionization—all
as alleged in the complaint.
In any event, it is clear that, in countering the Union’s orga-
nizing campaign, PDI launched a massive counter attack. If
phrased in terms of war, PDI’s response was equivalent to
America’s B-52 carpet bombing of the Iraqi front line forces at
the 1991 opening of “Desert Storm” in the Persian Gulf War.
As the Iraqis stumbled from their trenches begging the advanc-
ing United States soldiers to accept their surrender, so too, figu-
ratively, the PDI employees, shell shocked from the long series
of verbal “carpet bombing” speeches and videos, would have
stumbled toward the voting booths, begging for the chance to
vote against the Union.
This is not to say that the speeches and videotapes, consid-
ered together, constitute a threat by PDI that PDI would retali-
ate by forcing a strike (by not agreeing to a contract so that a
strike would ensue and PDI could permanently replace eco-
nomic strikers6) should the employees be so unwise as to vote
in the Union. Even if lawful, however (because of occasional
statements that PDI would bargain, although hard, that strikes
do not always occur, and no express threat to fire strikers), the
theme repeatedly pounded into the heads of the audience is that
where there are unions there are problems, no job security, and
strikes, with strikers (and usually no reference to the type of
strike) frequently being permanently replaced. For all practical
purposes, the theme continues, the strikers lose their jobs to
those replacements. The way to avoid such dire consequences
is both simple and important: vote NO. Turn now to the writ-
ten texts of these speeches and videos. (As I discuss later, the
extensive mass of speeches and video transcripts is an impor-
tant factor in resolving credibility. Accordingly, I summarize
the speeches and video transcripts in detail.)
b. May 17, 1994
The written text of this speech is placed on eight pages. (RX
32.) Because of the large font and liberal spacing between
some paragraphs and pages (what can appear as “gaps” at cer-
tain points), if the document were single spaced, with normal
spacing between paragraphs and pages, it probably would be no
more than about two pages in length.
After an opening greeting, the first point made is that Bassett
wants to talk with the group about a “very important subject.”
“Yesterday,” Bassett advises, PDI received notice that a peti-
tion had been filed by the Union. The Union says it wants to
make employees “dues payers” and to be the exclusive repre-
sentative in dealing with PDI. Bassett points out that he has
asked “Luisa” [Pacheco] to be there so she can translate Bas-
sett’s comments into Spanish, and for him to translate what he

6 See Overnite Transportation Co., 296 NLRB 669, 670 (1989),
enfd. 938 F.2d 815 (7th Cir. 1991.)

PARTS DEPOT, INC. 685
just said. Then, “You may ask—‘Why is he reading this
speech??’” The answer, as provided in the text, is: “I don’t
like to be formal, but the Company’s lawyers insisted that I
read this speech. That way I can’t be mis-quoted with false
accusations by the Union.”
This need to read the speech “tells me something right away
—a union means turmoil.” To make it clear, Bassett states,
“The Company will do everything legally [emphasis added, as
this is a point in dispute] permissible to fight to keep the Union
out.” PDI will fight because it firmly believes that the Union
has nothing positive to offer. “Instead, unions equal turmoil,
disputes, bickering and strikes.” By contrast, PDI offers a
steady job, decent wages and benefits, and a true desire to treat
each employee with respect and dignity. At PDI an employee
is not just a number, but a person. “We are concerned and al-
ways want to hear your opinions.”
“Remember that letter I wrote asking for your opinions???
Well I’m damn sorry that Bill [Bill Beaman, per Bassett at
21:3728] discouraged you from speaking out. But I’m glad I
found out. Read the letter again—it’s still on the bulletin
board.” [No copy of the referenced letter was offered in evi-
dence.] After stating that PDI is not perfect but tries very hard,
the text states that PDI has an employee handbook that guaran-
tees fair treatment. “Here’s the handbook [RX 40, per Bassett
at 20:3582-3583]—you have all seen it before.” The text in-
quires, “Did anyone not get one of these? Let me read you
page 9.” Bassett testified that he read the page 9 quote as pro-
vided in the script, (20:3581-3582): “If employees have con-
cerns about work conditions or compensation, they are strongly
encouraged to voice those [these in RX 40] concerns openly
and directly to their supervisors!!” [A period, not exclamation
points, in RX 40.] By the text, Bassett tells the group that the
procedure works.
By the text, Bassett states that he had heard from some that
PDI’s commitment to positive relations was being violated.
“This was confirmed by my investigation way before I even
heard of union activity.” Bassett then states that the employees
saw the reversal of a few poor decisions of the warehouse man-
ager. “And then you saw a very serious management change
after I had a few more conversations with some of you.” (Bas-
sett fired Warehouse Manager Beaman on Friday, May 13,
1994. 20:3530; 22:3844.) This was done before the Union’s
petition, the text states. Bassett, by the text, asserts that PDI
wants to continue the open and direct relationship it has with
the employees, but that will not be so if the Union becomes the
exclusive voice for the employees. Bassett then tells the em-
ployees to ask themselves what a clothing and textile union is
doing at an auto parts company, and why is the Union so inter-
ested in getting their names and addresses. The answer, the text
states, is that the Union wants “your money,” and to get its
hands on the employees’ paychecks to keep the money rolling
in to support the union officials.
What will the employees receive for the money they pay to
the Union, the text asks. The answer: “The Company would
have to sit down and bargain in good faith. That’s it. That’s all
she wrote.” And, as the text next advises, “There are no guar-
antees from the Union on wages and benefits. They could go
up, stay the same or even go down.” Ask the Union some ques-
tions, the text urges. The Union always makes all kinds of
promises for more pay and benefits. Ask the Union to give the
employees a 100% guarantee, in writing, that “if you pay the
Union money, they will guarantee you more money from the
Company. Ask them soon.”
The Union cannot make this guarantee, the text advises, be-
cause the law states that the only thing a company has to do is
to bargain in good faith. “The law states that a company is not
required to make any concessions.” PDI does not need a union.
What PDI needs is the continued teamwork and a chance “to
show you we can work together.” Bassett, by the text, asks for
the opportunity to show that the Union is not needed and that
they all can work together. They are still a team; they respect
each other; and the employees do not need to pay someone “to
speak for you.” Bassett, by the text, concludes by apologizing
if he got “a little carried away,” but the union matter is impor-
tant to the employees and to PDI’s future. [Bassett testified
that “carried away” means he delivered, by script, the last few
comments with “gusto.” 23:4036–4038, 4075–4078.]
c. June 14, 1994
The text of this second speech (RX 33), because of more lib-
eral spacing, appears to be a bit shorter than the first. Bassett,
by the text, refers to a “Union” leaflet which, by script, he
shows. (20:3599, Bassett.) Actually, the leaflet (GCX 20), on
its face asserts that it is a statement by coworkers at the Miami
facility and gives the reasons for their organizing a union. Pho-
tos of seven Miami employees are shown on the leaflet. The
leaflet, which gives the date and time of the NLRB-conducted
election, begins by suggesting that, together, the employees can
win better working conditions: Less work, more pay, afford-
able health insurance, job security, seniority to be counted, fair
treatment, and a pay raise. “With our Union, we will be able to
make changes for the better at Parts Depot.” (GCX 20.)
Early in the speech Bassett, by the text, comes to the first
video: “Promises, Promises, Promises.” As shown on the tran-
script (RX 23) of the videotape, the movie depicts a scene at a
union hall with various employees talking among themselves
and with a union organizer. At various points the narrator
speaks to the reader [and presumably to the audience on the
video] to give the true rule. The transcript, although using only
the right half of each page for the scripted words (with the left
half reserved for designating the speaker), is single spaced and
runs for 15 pages.
The text of the speech opens reminding employees of the
importance of the union election. By the text, Bassett states
that he feels a moral obligation to present all the facts to the
employees so that they can make the most intelligent decision
when voting. “The first thing a union always does – is to try to
get your support by making promises. This is their main orga-
nizing tactic. This Union is no different. [Show Union leaflet.]
Here they go again, making promises of getting you more
money and less hard work. [Point to top of leaflet.]” Remem-
ber, the text advises, that the Union is a salesperson, selling
union membership and union dues in return for promises. The
Union can guarantee you “absolutely nothing! The Union does
not have a magic wand.” The law does not work that way, the
text states. Bassett, by the text, then states that PDI has located

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 686
a videotape “which contains an excellent explanation of the
law. Much better than I can explain. We are going to take
some time to review this video tape together.” At this point,
Bassett testified (20:3604–3605), the video was shown.
The video, by the transcript, opens at the union hall with the
camcorder “eavesdropping” on the conversations. Employees
are stating that once a union gets in the employees automati-
cally get higher pay, better benefits, and job security. One
employee expresses doubt. He is reassured that it is true, and
that no one can be fired without the union’s approval. Another
employee says that with a union “WE tell THEM what stays
and what goes, and how much overtime we’ll work . . .and all
that. When you got a union, you got REAL power.” The
narrator comes in at this point asking whether the foregoing
sounds familiar. “One thing that you’ll find in every union
campaign . . . it’s promises, promises and more promises.” But
there are no guarantees that a union can get employees any-
thing, “as you will soon see.” But that does not stop the organ-
izer from making those promises. The scene then switches to
the union organizer’s arrival and to his speech.
After the organizer states that the labor movement in Amer-
ica is getting stronger every day, but more people are needed,
the narrator comes in to give some history, stating that union
membership peaked in 1945. Today, if government workers
are not counted, unions represent only 12 percent of the work-
force. “One report says that unions will represent less than
Five Percent of the workforce by the year 2000.” One reason
for the decline is that employees have discovered that unions
cannot do all that they claim. Another is that government has
taken care of many of the problems that unions used to address.
So, while unions once were important and needed, they are not
anymore, and employees should not believe stories that union
membership is growing.
The scene switches back to the organizer answering a ques-
tion by stating that at the bargaining table “we tell them what
we want. . . . Anything you decide you need. It’s just that sim-
ple.” Then the camera moves back to the narrator who states
that things are not that simple. The narrator then says that, if a
union wins, all the company has to do is to sit down and bar-
gain. The National Labor Relations Act states that, while both
sides are obligated to bargain in good faith, that obligation
“does not compel either party to agree to a proposal.” In other
words, the narrator states, “as long as the company bargains in
good faith, it doesn’t have to agree to any union demand. And
it doesn’t even have to sign a contract with the union. Like I
said, there are no guarantees.”
An employee then asks the organizer whether employees can
lose anything if the union is voted in. “Absolutely not! The
law protects your right to belong to a union.” The organizer
adds that once the election is won, “we start bargaining from
where you are now, and we bargain UP!” Addressing this mat-
ter, the narrator states that, once again, the organizer “is bend-
ing the truth.” An employer may bargain “for even LESS than
you have right now. The National Labor Relations Board has
said:

There is, of course, no obligation on the part of an em-
ployer to contract to continue all existing benefits, nor is it
an unfair labor practice to offer reduced benefits.

Just remember, the narrator advises, negotiations can result
in more, the same, or less. From this point until the concluding
statement, the transcript covers whether union members really
have control over whether a contract is signed, and covers such
matters as dues, initiation fees, special assessment fees, salaries
and expenses for union officials, and fees and expenses for
retained professionals and for other matters like lawsuits. Ask
questions, the narrator advises toward the end. The videotape
concludes with the narrator, per the text, rolling his eyes and
shaking his head when the organizer comes to the screen again,
stating “after we sign that first contract—we’ll have the com-
pany right in the palm of our hand. And you’ve got my prom-
ise on that.”
Bassett then takes over, per the speech text, saying the video
was an excellent and truthful presentation by an outside com-
pany. Bassett compares the union situation to buying a used
car, where the union organizer is like a salesperson whose job
is to polish up the used car and to tell the consumer how much
he needs it. Bassett tells them to kick the tires and check under
the hood before they buy the Union promises.
After advising employees that, if the Union gets in, PDI is
required to bargain with the Union only, and would not be in a
position to talk directly with employees about wages or bene-
fits, Bassett, referring to the video, states that no law requires
PDI to pay more than the federal minimum wage of $4.25.
“The Company would have the right to bargain hard. The
Company could bargain for a reduction in wages or benefits if
economic factors indicate we should do so. As was covered in
the tape, under collective bargaining, your wages and benefits
can go down, go up or stay the same. In other words, the Union
can do all the asking it wants. The only way a change can
come about, however, is for the Company to agree.” Employ-
ees should know what the Union is up to. “The hollow prom-
ises are nothing more than that.”
Switching to a different topic, Bassett, per the text, states that
an employee recently asked him whether the employees would
get a pay raise if they voted No. Because it is an NLRB elec-
tion period, the text advises, management is prohibited from
making any kind of a promise. PDI is prohibited by law from
saying anything that would even imply that conditions of em-
ployment would be changed if the Union is defeated. “Simply
said, we cannot bribe you for your vote!” But once the election
is over, and employees have voted No, PDI “will be free to
continue to follow its policies without having to negotiate any-
thing with the Union. We will be free to talk directly with you
about these concerns. Remember too that never in the Com-
pany’s history have we had a pay or a benefit cut.”
By the text of the speech, Bassett ends by thanking the atten-
dees for their attention, and telling them, “Remember, our
doors are open; we have the 210 hotline [emphasis added be-
cause it an issue in case] if you have any questions you want to
ask anonymously. I truly want to do everything I can to com-
municate openly with you about this important issue. Thank
you.”

PARTS DEPOT, INC. 687
Bassett’s telling employees to remember the hotline refers to
an undated memo (GCX 18) from Bassett to all employees
advising them that “now” they can dial the “210 confidential
hotline from their home or from any outside telephone. They
are told to dial 633-6900, to ignore the recording, and to press *
[star] 210. They then would hear Bassett’s recording. The
undated memo was posted, Bassett testified, about late May
1994. (7:1051–1052; 22:3895–3896.)
Bassett’s efforts in this June 14 speech to neutralize the sup-
posed “hollow promises” of the Union is an ironic use against
the Union of the theme of union songwriter Joe Hill’s “pie in
the sky” phrase in the refrain of Hill’s 1911 song, The Preacher
and the Slave. 7
d. June 22, 1994
During this third speech, the text (RX 34) calls for Bassett to
pass out two items. The first is a one-page document having
the appearance of a certificate, with computer-generated bor-
ders, titled, “Union Guarantees” and having a signature line for
Monica Russo, Union Organizer. A preamble advises employ-
ees to protect themselves against deceptive union promises by
getting the union official to sign the document. The document
contains seven numbered guarantees, from a pay raise of so
much (amount to be filled in) per hour in the very first contract,
to more paid holidays and more paid vacation days in the first
contract (numbers to be filled in), to matters about dues and the
Union’s constitution, that stewards and union officials “will not
receive priority over you if layoffs are necessary at P.D.I,” to a
promise of returning to their jobs after a strike even if perma-
nently replaced (number 5), and (number 8) a guarantee that the
Union “will pay for the support of your family and all of their
expenses if you are thrown out of work because of union strikes
or other activities.” If the organizer fails to sign, then the text
tells employees that they should, in large, bold capitals, Vote
No. The reverse side has the document in Spanish. As Bassett
recalls, he distributed copies of the Union Guarantees form to
attendees. (20:3621.)
The second document, which Bassett also distributed
(20:3621, 3623), is a one-page photo of a portion of the statute,
including, with pointer and note that this is the law, Section
8(d) of the Act, with the pointer on the clause that a party is not
required to make a concession.
A short distance into the speech, the text calls for the video
to be played. This is the second video, “Let’s Make A Deal.”
Bassett testified that he played it at the point indicated in the
speech script. (20:3620.) The video’s topic is collective bar-
gaining, and the transcript (RX 24) covers a scene at a bargain-
ing table with the narrator commenting.
Launching into this third speech, Bassett, per the text, again
states that he has a moral responsibility to lay out the facts. He
also repeats that “The Company is opposed to the Union.
There should be absolutely no question about that. We are
convinced that the facts that we know about unions conclu-
sively proves that a union at Parts Depot would be contrapro-
ductive to all of us.” Pointing to an easel (20:3617), or flip
chart as denoted in the speech, Bassett stated that the topic for
the day was collective bargaining. Union promises, the text
states, do not produce more money, vacations, and such as if by
there is a magic wand to be waved. Advising that PDI had
obtained another videotape which explains collective bargain-
ing, Bassett also disclosed that, in scripted answer to a question
[a question apparently posed in advance of the meeting], PDI
did not produce the tapes. “We found a company in Atlanta
that did this for educational purposes. The tape is an honest
factual program. [Play the tape.]”

7 You will eat, bye and bye, In that glorious land above the sky; Work
and pray, live on hay, You’ll get pie in the sky when you die.
Gibbs S. Smith, Joe Hill 20–21, 239 (1969, 1984 Peregrine Smith
Books.)
The narrator begins by explaining that both sides take to the
bargaining table a list of things each wants. What happens?
The truth is, the narrator states, “nobody knows what would
happen. But let’s take a look at how the union organizer
WANTS you to think bargaining works.” The scene that fol-
lows depicts the union representative demanding three extra
holidays, an extra week of vacation, and a 7 percent pay in-
crease. The employer’s representative pleads that costs have
gone up and competition is hurting the company. That’s the
company’s problem is, in essence, the union’s response. After
quoting the law that no concession is required, the narrator then
switches to what he calls a more “realistic” version of what can
happen. The union representative starts with a union recogni-
tion clause, a union security clause, and a superseniority clause.
The narrator then describes those clauses. After perhaps
months of bargaining the parties reach the money issues. To
the union’s proposal for a 7 percent pay increase the company
states that it cannot do so because of a battle with the competi-
tion. When the union says the employer cannot do that, the
employer says it has the legal right. On holidays and vacations
the company says that it has made a survey and found that it is
giving more than the competition. Thus, it proposes a reduc-
tion in those items.
The narrator then explains that the law permits the company
to propose a reduction. Indeed, the narrator states that “in two
out of every three union contracts, the employees either stayed
where they were or ended up with less. But why does the union
let it happen? See for yourself.” At this point the union begins
dealing. “We want a dues checkoff clause, union security and
superseniority . . . and if you give them to us, we won’t ask for
any wage increase, and we’ll give you back your two holidays
and cut back on the vacation plan.” “Let’s make a deal,” the
union representative pleads. The company representative says,
“O.K. You got a deal.” They shake hands as the scene ends.
Summing up, the narrator reminds that in bargaining em-
ployees can end up with more, the same, or less. Then, incor-
rectly attributing a quote to the National Labor Relations Board
(as if it were the Board’s language rather than a quotation from
an employer’s statement), the narrator states that the National
Labor Relations Board has said very clearly that: “collective
bargaining is potentially hazardous for employees, and that as a
result of such negotiations, employees might possibly wind up
with less . . . after unionization than before.” In his final com-
ments, the narrator lays the transition to the next video topic by
a brief reference to strikes, and by asking employees to think
about what happens when the parties are not able to reach an
agreement for a contract. Like everything else with a union,

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 688
“what you don’t know can very definitely hurt you.” After a
scripted pause, the narrator concludes by saying, “The bottom
line here is having a union in your life is a very serious thing.
It is definitely NOT a game.”
Bassett then resumes his text by repeating the theme that all
collective bargaining guarantees employees is that PDI must
“meet and confer in good faith.” “And we would do that,”
Bassett assured, by the text. “That is what you would pay the
Union to do for you. They cannot guarantee you anything.”
The script then calls for Bassett to show the Union Guarantees,
which he distributes. The text calls for him to ask whether
anyone has gotten one of these signed by Monica, the union
organizer. “[Pause} We all know why, don’t we.?” Next,
“Here is a copy of the law that was referred to in the tape.
[Hand out the copy of the law.] Do you get the point? Bring-
ing the Union in here means politics; it means hard core nego-
tiations; it means hard bargaining; it means a lot of accusations
and maybe a lot of arguing at the bargaining table.”
“Maybe it means the Union takes a strike vote to try to put
pressure on the Company to cave in. This could lead to a con-
tract. This could also lead to a strike. That could mean no
paychecks, no unemployment, and possibly being permanently
replaced by other workers. Believe me—this can be very un-
pleasant. Who needs it? Not me, and not you. We would all
suffer. Only the Union would make out because you would
still have to pay them your dues! Thanks.”
e. June 29, 1994
In this fourth speech Bassett, per the text (RX 35), repeats
his view that it is his “moral duty to give you all of the facts so
that you can make an informed decision. Today we are focus-
ing on job security. [Point to ‘job security’ written on easel].”
This quickly leads to statements about competition, which must
be out hustled, and the need to keep customers by quality ser-
vice, timely delivery, and teamwork. By the script, Bassett is to
point to these terms on the easel. He testified that he used the
pointer and easel for this speech. (21:3762.) He also testified
that he referred to a news article about a strike by the Union
(21:3759-3761) and showed the third videotape, “Job Security
Union Style.” (17:2662–2663, 2697; 21:3759.) The transcript
(RX 25) for the third videotape is a lengthy 18 pages, with the
comments, all by the narrator, single spaced on the right half of
the pages. The main topic of the video is strikes in relation to
job security.
After pointing to the easel and the topics of competition,
quality service, timely delivery, and teamwork as the “secret to
our success,” Bassett states that the question for the election is,
“What will the Union do to help us compete? I submit to you
that a union could not and would not help our situation—but
they could hurt it. Unions don’t make jobs more secure. In
fact, the opposite could be true. Unions can make jobs insecure
by insisting on practices and engaging in actions which affect
the quality of our service.” Bassett then, by the text, states that
PDI’s business depends on customers, and that a union cannot
get customers to place orders. Customers decide what job secu-
rity there is, and customers are interested in a “dependable sup-
plier.” Launching into the subject of strikes, Bassett, by the
text, states that customers are not interested in having their
warehouses interrupted or “short circuited by strikes.” He then
informs the employees that PDI has found another videotape
“on precisely this issue that was produced by the company in
Atlanta. This is an educational tape that covers the facts and I
want to show this to you. [Roll tape ‘job security’ . . . union
style].”
As reflected by the transcript (RX 25), the video opens with
“sound of footsteps on concrete floor. Shot of slightly lit narra-
tor in dark room. Can’t see where he is.” The narrator begins
by saying that it is only natural for everyone to want good pay,
safe working conditions, and job security, with job security
probably being the single most important item. With the econ-
omy changing almost overnight, the number of places like this
(the lights come on to show a deserted building) is increasing.
The narrator then states that until 2 years ago this plant was
operating at “full steam,” employing about 150 persons, but
today, “as you can see . . . it’s empty.” “The sad fact is that the
days of lifetime job security are over.” From there the narrator
proceeds to list the many economic pressures that are squeezing
employers, and briefly discusses the items companies need to
survive: quality, speed, value, and flexibility. The “bottom
line” is to have these qualities and to price the product or ser-
vice so that “customers will continue buying from you,” and to
accomplish this requires teamwork. Only those companies that
can compete will be able to survive, prosper, “and provide job
security to its employees.”
And where do unions fit into this “new philosophy of coop-
eration between employees and management? The fact is, they
don’t.” Unions, the narrator goes on, cannot provide job secu-
rity. The narrator then refers to the steel industry in the United
States, with “giant steel mills” closing, and the rubber industry,
where today “not one passenger tire is made in Akron, home of
the United Rubberworkers union.” And “everyone knows the
plight of the American Auto Industry, suffering from competi-
tive shock.” Despite representation by the United Autoworkers
Union, “hundreds of thousands of union members are losing
their jobs as the American carmakers continue to shut down
their money-losing operations.” Unions, the narrator states, did
not help when the companies tried to become more efficient
and more competitive. Unions, the text continues, have been
very slow to change from an “US” versus “THEM” mentality.
Constant friction, a lack of cooperation, and on many occa-
sions, strikes and violence. “Unfortunately, not much has
changed over the years. Today, the union strike is still with
us.” The narrator continues and states that unions oppose “any
team concept programs,” and resist including any references to
“Team” or “Teamwork” in labor contracts.
After stating that unions can jeopardize job security by re-
strictive work rules and opposing changes that would make a
company more efficient. At “this plant,” the narrator continues,
after the employees voted the union in, the parties bargained for
almost 2 years. The company needed concessions on contract
changes to stay competitive, but the union refused. “When the
union threatened to strike, the company moved the operations
to another plant, and all the employees at THIS plant had to
find work somewhere else. THAT’S what can happen when a
union gets in.” At this point the narrator begins a series of
statements about strikes, pointing out that the company stops

PARTS DEPOT, INC. 689
issuing paychecks during a strike. Strikers undergo financial
hardship, and bank loans are hard to obtain. Aside from the
financial problems caused by strikes, there are emotional scars,
too. Replacement workers can be hired, and that causes more
anger. Emotions run high, friends become enemies, and fami-
lies split apart. “Homes and cars and personal possessions can
be lost . . . and even more tragically, sometimes lives are lost.”
[Bassett admits that there was an image of fighting on the
picket line and an image of a gun being cocked and displayed,
and that such probably was in this section of the video.
23:3966.]
The narrator continues with a question about what happens
when the strike ends and the picket line comes down. “Well,
no one really knows for sure, but one thing is for certain: the
company has the right to keep operating with the replacement
workers it hired during the economic strike . . . and the strikers
don’t have to be returned to their jobs. That’s right. The strik-
ers’ names will be put on a list, and they will be returned to
work as jobs come open that they are qualified for. But that
could be weeks, months, even years . . . and sometimes never.”
Some very visible strikes have proved the point in the last few
years, the narrator states, adding that thousands of unreported
strikes make it clear that strikes are “risky.” Moreover, the
narrator continues, the National Labor Relations Board has
verified this in a recent case by stating: “An employer may
permanently replace economic strikers.”
The narrator then summarizes the points he has covered,
adding a statement that “if there’s no union, there’s no union
strike.” About the only people who do not get hurt in a strike,
the narrator continues, are the union officials. “They continue
to get paid, and they don’t worry about losing their jobs” re-
gardless of the outcome. “The bottom line is that strikes hap-
pen, and they happen a lot. They happen when and where you
least expect them, and they happen to people who say ‘it can’t
happen here’.” When that happens, the narrator remarks, the
results can be very painful. “Do you remember the title of this
program?” the narrator asks, in concluding. “It’s called ‘Job
Security . . . Union Style.’ Hopefully, by now, you’ve seen that
there really is no such thing.”
“That was excellent,” Bassett remarks, in resuming his
speech, according to the text. Bassett observes that the video
made two significant points. The first is that a union would not
help PDI remain competitive because the “Us” versus “Them”
atmosphere unions are interested in creating sends the wrong
message to PDI’s customers. The second point is strikes. “As
it was pointed out in the tape, the real threat to our job security
comes from a strike-happy union that has made many promises
it knows it cannot keep.” Strikes not only hurt employees and
perhaps the company, but they also “can drive away our cus-
tomers.”
Bassett then shows a newspaper account (RX 35 at 15) of a
strike by the Amalgamated. After the strike the Union accepted
the company’s earlier proposal. “Think about it,” Bassett
states, “The Clothing & Textile Union let the workers go out on
strike for 54 days for nothing! And what happened next is what
we just saw on the tape. When the 700 workers tried to go back
to work, they found out that only about 20 of them had jobs.”
Bassett, by the text, and his testimony (21:3761, 3765-3767),
read from the article, “The remaining workers have been put on
a recall list and will be called back as a [“the” in the article]
situation warrants.” Returning to his speech, Bassett then
states, “Folks, this is [these are] the facts. Here is living proof
that in April 1994 almost 700 Clothing & Textile Union work-
ers, who had put their faith and trust in the Union, went on
strike and were permanently replaced. This is one specific
example of what can happen with unions.”
Bassett then refers to the problems of Eastern Airlines, con-
cluding that reference with, “We all know people in this com-
munity who were devastated.” “No one can predict what would
happen here if the Union came in. What I am saying is we
cannot make the mistake of thinking it can’t happen here. A
strike can happen anywhere any time a company and a union do
not agree on the terms of a contract. This is something I urge
you to carefully think about before you exercise your right to
vote next week. Thank you for your attention and support.
[Hand out news article].” As Bassett ended and copies of the
news article were being distributed (21:3768), an employee
asked a question about striker replacements. (21:3764, 3768.)
I address that exchange later.
f. July 6, 1994
For his last preelection speech (“25th Hour,” RX 36), Bassett
refers back to the events of May and contrasts the management
styles of Bill Beaman, the fired warehouse manager, and his
successor, Leo Belaunzaran. When Bassett concludes, he turns
the meeting over to Belaunzaran who delivers a speech (RX 37)
of his own.
Bassett testified that he showed the fourth videotape (RX 18,
“25th Hour”) at the beginning of this meeting. (21:3773.) It is
a videotape containing, as shown by the transcript (RX 26),
statements by a narrator with his statements interspersed with
testimonials by Coca Cola employees who assertedly had ex-
perienced a strike at a Coca Cola plant. The narrator begins by
reminding viewers that very soon they will vote. To help make
that important decision, the narrator reports, the viewers will
see and hear from one former union organizer and testimonials
from employees. The statements and testimonials begin with
the topics of dues, assessments, and fines. When the organizer,
“Barbara,” is about to speak, Bassett pauses the videotape and
tells (21:3774-3775) his audience that Barbara was a union
organizer like Monica [Russo] and that “She knows the truth
and has decided to tell the real truth. Listen to her throughout
this tape.” (RX 36 at 2.) When the first worker begins the
employee testimonials, Bassett again (21:3774) pauses the
videotape and tells his audience, “These are real workers, not
actors. They voted for the union. They will be telling you
about their disappointments and the lies the union told them.
Listen carefully.” (RX 36 at 2.)
After the topics of dues and such, the narrator turns to union
promises and collective bargaining, reminding viewers that
“All the union wins in the election is the right to bargain. And
bargaining is like a game of ‘Let’s Make A Deal’. Workers
COULD end up with more, they could end up with just what
they started with, or they could end up with LESS.” Moments
later the testimonials begin describing the promises assertedly
made by the union, concluding with a statement by “Dave”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 690
that, “When it comes down to it the raises weren’t there. I
think they actually cheated me in the long run.” At that point
the narrator again (as in second video, as reflected at RX 24 at
9) incorrectly attributes a quote to the National Labor Relations
Board as stating (rather than showing the Board as quoting
from an employer’s statement) that “collective bargaining is
potentially hazardous for employees and … as a result of such
negotiations employees might possibly wind up with less …
after unionization than before.” (RX 26 at 7.)
From following statements about checkoff and supersen-
iority clauses the narrator leads into company relocations by
stating that a company can and must do whatever is needed to
survive. Thus, “Court rulings” have said that the presence of a
union does not prohibit an employer “from moving its plant
should economic conditions so dictate.” [The transcript shows
the name of “Oxford Pickles.” The quote is an accurate reflec-
tion of the Board’s statement in Oxford Pickles, 190 NLRB 109
at 109 ((1971): “Nor does the presence of a union prohibit an
employer from moving its plant should economic conditions so
dictate.”] The narrator then states that a union cannot guarantee
job security, which comes only from keeping “your company”
financially strong and from timely delivery of products and
services at a competitive price. Unions do not seem to under-
stand this, and time and again unions have “damaged their
members’ companies.” Indeed, “Far from offering job security,
the unions have jeopardized the very thing they say they want
to protect.”
The narrator then turns to strikes, stating that unions do
strike and they strike often and “Don’t think it can’t happen to
you.” Financial hardships of a strike are described, with the
narrator stating, “So, there’s going to be financial hardship.
Serious hardship.” From there the narrator turns to permanent
replacements, “something the union doesn’t often talk about.
But we’re sure the thousands and thousands of union workers
who have lost their jobs to replacement workers would have
something to say.” After a quote from a Riverside Hospital
picketer about being replaced, the narrator continues with the
theme that (RX 26 at 12): “Strikers get replaced very often and
statistics show it is happening more and more. And those re-
placements have the legal right to keep that job for as long as
they want. The striker does get put on a preferential hiring list,
but he doesn’t get his job back until the replacement quits or is
terminated.”
From the “financial hardship” of strikes the narrator then
moves to the “possibility of violence,” with the video then
showing, as reflected in the transcript, a lengthy statement by
Barbara, the former organizer, about friends shunning them,
homes being spray painted with obscenities, tires flattened, acid
thrown on your car, your windshield broken, “and I’ve seen all
of this,” even “more than once.” Barbara asks viewers whether
they, as strikers, will be able to, among other items, “follow
peoples’ children on school buses and call them up and tell
them you know where their children are? Can you throw paint
on their garage doors? Can you, and I’ve seen this happen, can
you strangle their cats or dogs? Can you leave threatening
notes? Can you make phone calls all night long, keep people
from sleeping? Are you willing to lower yourself to that level?
I’m not saying every union member does, but some do, and it’s
frightening what a mind set like that can do to a large number
of people.” (RX 26 at 12–13.) The narrator follows up by
stating that, while no one wants a strike, “the only sure way to
avoid a union strike is to avoid the union.”
The narrator describes union thinking as unchanged from the
1800s, including damaging strikes, and states that such methods
are no longer successful, and “the massive decline in union
membership proves it.” After some brief testimonials about
distorted facts and employees losing, the narrator approaches
the video’s close with a paragraph referring to the “misery”
unions have brought to many of their members, the “harsh rules
and regulations,” references to dues, strikes, and the battle lines
that put union bureaucracy between employees and their com-
pany. He concludes by urging the viewers not to put them-
selves through the tough lessons “these people learned the hard
way.” Think about the facts. If they do, they will realize, “like
8 out of ten workers in America, that you will be better off by
voting NO and staying union-free.”
Bassett then resumes his speech, and tells his audience that,
rather than picking an education theme as he has done over the
last few weeks, “I’d like to talk personally to you.” Bassett
describes his personal employment history, but before doing so
he tells the group that, “Even though my message today is in
the form of a speech, I would like for you to consider this a
personal conversation and an opportunity to get to know me a
little better.” From his personal employment history, and com-
pany picnics, Bassett arrives at the topic of the warehouse man-
ager. After Bassett’s arrival at PDI, all managers and supervi-
sors were promoted from within. “All except one who was
brought in from Tampa. And you know who that was.” With
that obvious reference to Bill Beaman, Bassett then states that,
even though “that situation is no longer here, I seem to be pay-
ing the personal price of when it was here. This outside union
campaign.” Stating that he regards this “problem” in a personal
way, because he selected the management, Bassett expresses
regret at going against his own vow by bringing in someone
from outside to be the warehouse manager. “I think I acted
late” in correcting the management situation. Bassett states that
he learned that employees were “spoken to” or sometimes “dis-
ciplined” by the warehouse manager it they talked to Bassett.
“What was he afraid of???”
Bassett states that he learned that “we had a manager just
like you might expect to find in a union warehouse where there
was no representation direct to the top management.” And,
“PDI is opposed to the union, but we had a management style
in the warehouse just like we already had a union in the ware-
house. So, you already know what management could be like
with a union/contract mentality. Because you had one! Many
of you thought you were signing a petition just to get a change
in one manager. A manager who was completely different
from the style of Leo. A manager you would expect to find in a
union warehouse. Leo has shown the way of managing without
a union. Bill showed us the way of managing with a union and
a union steward. The only difference with [the] former ware-
house management is you did not have to pay dues to be man-
aged in that style.” From there Bassett, leading up to turning
the meeting over to Warehouse Manager Leo Belaunzaran,
asserts that he likes Belaunzaran’s style much better. In turning

PARTS DEPOT, INC. 691
the meeting over to Belaunzaran, Bassett states, “Let’s hear
about Leo and his vision of the future here at PDI without a
union.”
Respecting Belaunzaran’s speech (RX 37), it is sufficient to
note that Belaunzaran, by the text, describes his employment
background, and how things changed for the better on May 13
[the date Bassett fired Beaman]. Belaunzaran goes on to say
that his style is to operate with trust, dignity, and working to-
gether as a team. “If you give me a chance, I will prove to you
that we will continue to operate together in an environment of
trust and respect.” Turning to the election, Belaunzaran states
that no one will be fired for supporting the Union, but that a
NO vote is needed, and by voting no union “you are voting for
me. If I and the company do not live up to your expectations,
you can go back to the union. But, if you vote the union in, it
will cause us the problems we have heard and read about over
the past several weeks.” Belaunzaran concludes by again urg-
ing employees to vote NO. The complaint does not attack any
part of Belaunzaran’s speech.
During the campaign Bassett also mailed, distributed, or
posted various letters or memos. (21:3791.) One of these
documents was a (Tuesday) July 5, 1994 letter mailed to em-
ployees at their homes. (21:3801–3802, 3812–3813; 22:3840.)
The three-page letter (RX 45, English; RX 46, Spanish) reiter-
ates several points previously made and again urges employees
to vote NO. The letter’s specific relevance in relation to the
speeches, as described by PDI’s counsel (21:3796), is to show
context by reason of, for example, the following paragraph on
the second page: “As I read in our ‘VIDEO TAPE’ meetings,
the thing that bothers me is: the only way a union can try to
enforce its demand is to recommend a strike. We don’t say that
a strike always occurs when dealing with a union. We do say
that it is important for you to know that should one occur, under
the law, the Company is not required to pay wages to anyone
on strike for economic reasons. And the company is not re-
quired to stop operating. Unions never tell you that if you are
an economic striker you can be permanently replaced. The
company must continue to operate.”
At trial the General Counsel and the Union objection to this
letter, and to two other items of campaign literature. The pri-
mary objection is that the letter was merely an attempt to lessen
the sting of the remarks of Bassett and the narrator and there-
fore is not relevant because not presented to the employees
during any of the speeches. (21:3807–3808.) Although I over-
ruled that objection, plus others, and received the documents in
evidence (21:3813), it appears that there is much force to the
General Counsel’s argument on the Government’s primary
objection. Thus, I would not find that the statement, “We don’t
say that a strike always occurs when dealing with a union,”
neutralizes any unlawful statement or statements in the
speeches and videos. First, the sentence would be reached and
read only by someone interested enough to hear even more
about the union election. As of July 6 or 7 (about the time em-
ployees presumably would be receiving the letter of July 5),
after just having attended Bassett’s fifth speech, and seen the
fourth video, employees might well be so saturated that they
would have no interest in reading the three-page letter or the
assertedly enclosed list of important questions. (RX 45 has no
list of questions attached.)
Second, and the flip side of the first point, the speeches and
videos were presented “live” at captive audience sessions.
Moreover, as the speeches were read, but in the fashion of us-
ing a teleprompter, and as the narrator’s remarks were delivered
in a television format, the employees merely had to listen, not
read the fine print. Accordingly, I find that the July 5 letter
(RX 45) is not relevant in determining the lawfulness of re-
marks made during the speeches.
g. Discussion
(1) No deviation
Of the several witnesses I named earlier, only two appear to
be the major witnesses: Demosthene for the General Counsel,
and Bassett for PDI. Some of the others gave important sup-
porting testimony, but they either attended fewer meetings,
were uncertain in their descriptions, or their descriptions were
the distorted result of merging bits and pieces from the different
meetings, while adding their own confused perceptions of the
statements made.
As for the procedure Bassett followed in delivering his
speeches, I credit Bassett, and his supporting witnesses, that he
gave the text of his speeches, as written in the exhibits, without
deviation. (I address later the issue of whether Bassett made
additional remarks, particularly in answer to questions, after he
had completed his readings.) I find no merit to testimony about
deviation in the form of, for example, Bassett’s omitting the
word “legally.” (See the first speech, on May 17, where the
text calls for Bassett to say, “The company will do everything
legally [emphasis added] permissible to fight to keep the Union
out.”) In addition to the credited testimony of Sara Mitchell
(19:3147) and Barbara Shaw (19:3338, 3356), that Bassett used
the term, I note that the parties stipulated that Osberto Jerez (a
Government witness subpenaed by PDI to testify during PDI’s
case in chief) would have testified (in accordance with a section
in a pretrial affidavit, RX 42; 13:2103; 21:3706) that, during
“the” meeting, Bassett “told us that he would do everything he
could do legally [emphasis added] to keep the union out of the
company.” (21:3706, 3708.)
Although the stipulation failed to specify the meeting, the
one paragraph section (RX 42) from the affidavit gives suffi-
cient clues for me to find, as I do, that Jerez was describing the
first speech (RX 32), that of May 17, 1994. Thus, that Bassett
said “that the union can’t guarantee our wages” (RX 42) is
almost identical to Bassett’s May 17 statement that: “There are
no guarantees from the Union [although I capitalize “Union”
here, the text of the exhibit has all words in capitals] on wages
and benefits. They could go up, stay the same, or even go
down.” (RX 32 at 5.) Also, that during “this meeting” Bassett
“was blaming the company’s problems on Bill Beaman” (RX
42) is consistent with Bassett’s statements on May 17 that he
was sorry “Bill” had “discouraged you from speaking out,”
(RX 32 at 3), and (RX 32 at 4) that he, Bassett, had reversed
some poor decisions of the warehouse manager and, after an
investigation, made a management change. Although Bassett’s
references to Beaman were more specific and detailed in the

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 692
fifth speech on July 6 (RX 36), it seems clear, and I find, that
Jerez was describing the speech of May 17.
Turn now to the mass of the speeches and the videotapes. It
is important to consider, as earlier noted, that no witness made
any contemporary notes of the speeches. Demosthene concedes
he made none (4:637), but he nevertheless boldly proclaims
(4:637): “I remember everything that was said.” Even so,
Demosthene admits that his memory was better when he gave
his pretrial affidavit in August 1994 than it was at the trial.
(4:591.) Yet even in his pretrial affidavit of August 29, 1994
(GCX 16), Demosthene, who there describes Bassett as speak-
ing without benefit of any prepared text and mostly addressing
Bill Beaman and related matters, makes no mention of Bas-
sett’s announcement of the purpose for his calling the meeting
(to discuss the Union’s having filed a representation petition) or
most of the other topics covered in the speech. Demosthene
does no better in his description at trial.
Demosthene’s limited and faulty recall is understandable.
As most anyone would have been, Demosthene was adversely
impacted by two factors. First, over 3 months had elapsed
since Bassett’s May 17 speech and Demosthene’s pretrial affi-
davit of August 29. Without benefit of any contemporaneous
notes, he was trying to recall remarks delivered several months
earlier. Second, the time-lapse problem was compounded by
the fact that, since May 17, there had been four additional
speeches, plus four videos, all dealing with the Union.
[Demosthene recalls attending only four speeches, but he is
unsure of how many because it has been a “long time ago.”
(4:608, 660.) In fact, Demosthene is confused, as most anyone
would be, about the dates, placing the first two speeches in
May, the third on June 13 or 14, the fourth on June 20 (4:668,
689) or June 27 (4:660, 687–690), with a videotape shown
either at the third meeting (4:661) or (4:608; GCX 16 at 5)
about June 20. Finally, Demosthene recalls seeing only one
video dealing with the Union. 4:658, 661–662, 668.]
Demosthene appeared to testify with sincerity. His problem
is that his memory suffers from having been shell shocked by
the carpet bombing which PDI dropped on the employees in the
form of the videos and Bassett’s speeches. From that massive
bombardment, Demosthene’s damaged memory formed incor-
rect recollections by merging parts of statements made with the
fear and shock images that the carpet bombing (even if com-
posed of lawful statements when considered in isolation) was
designed to create. I discuss examples of this shortly when I
address the allegations of threats by Bassett.
Respecting Bassett’s speech of May 17, Demosthene testi-
fied that Terry Darling sat next to him. (4:611–612.) Presuma-
bly Darling also attended Bassett’s second speech of June 14,
for Darling is shown as being scheduled, at least, to attend that
meeting along with Demosthene and others. (RX 33 at 12.) As
the documents reflect, Darling also was scheduled to attend the
same session as Demosthene of the fourth speech of June 29.
(RX 35 at 10.) [No schedule list is in evidence for the third
speech of June 22.] Similarly, for Bassett’s fifth, and last,
preelection speech of July 6, Darling is again shown as sched-
uled to attend the same session as Demosthene. (RX 36 at 13.)
On cross examination, Darling testified that he attended an
unspecified number of the management meetings. (17:2621.)
Yet, as the General Counsel’s witness, Darling was not asked
about the meetings, and therefore does not corroborate any of
the testimony of Demosthene concerning any of the speeches.
(2) Questions and answers
Respecting the first meeting, that of May 17, Demosthene
asserts that, at the meeting, Bassett began speaking about Bill
Beaman, saying that he was sorry, that he had not known that
Beaman was the bad guy and had closed the door between
management and employees. That is why Beaman had been
fired. But now the door is open, and if anyone has a problem
he can go to either (Operations Manager) Jack Jenkins or to
Bassett. Bassett asked the employees to give him a chance to
review the personnel files and ascertain which employees Bea-
man should have given pay raises and benefits to and then he
could negotiate with the employees. (3:412–413; 4:554.)
Demosthene concedes that nothing was said afterwards about
any pay raises from any such review of the files. (4:658.)
Ronaldo Hernandez testified similarly (although placing the
meeting in late May, and asserting that a video meeting had
preceded it), including a reference by Bassett that there would
be “open doors.” Hernandez added that Bassett said there
would be an evaluation of personnel and a raise according to
the evaluation. (10:1578–1579; 11:1716.) Cross examination
of Hernandez clarified that the mention of evaluations and pay
raises came at the “last meeting,” which Hernandez placed in
April. (11:1715, 1717–1718.) Respecting the evaluations and
pay raises, Hernandez, I find, his memory confused, imported
images from a post-election meeting in which Bassett explained
the evaluation process and the pay raises—the subject of a
separate complaint allegation which I discuss later.
As Bassett credibly explains, apparently following his read-
ing about the “open door” policy from page 9 of the employee
handbook (RX 40), an “animated” discussion broke out among
the employees, and he was asked something about sick days not
being properly recorded in the personnel files. Bassett replied
that this was not the occasion to address personal matters, that
the open door policy was available for that, and he reread the
provision from page 9 of the handbook. Bassett recalls no ref-
erence to pay raises. (20:3578–3584; 22:3901–3903; 23:4029,
4032–4034.)
Although I credit Bassett, and not the inconsistent portions
of the employee testimony, I find it plausible that, as
Demosthene describes, with Beaman having been fired, Bassett
told the employees that, under the open door policy as provided
in the employee handbook, employees with problems could
come see either Jenkins or himself.
Although the page 9 provision is not a clear declaration the
division president’s door is open to employees, 8 as the ware-
house manager had just been fired, Bassett’s response to the
employees, of the availability of either Jenkins or himself, was
not inconsistent with the handbook’s policy—a policy available
to all employees, not just the warehouse employees. Accord-
ingly, I shall dismiss complaint paragraphs 5(d) and 5(e) which
allege unlawful solicitation.

8 Perhaps a clearer statement would help avoid comparisons with the
Scott Adams’ witticism, “Great Lies of Management: 2. ‘I have an
open-door policy.’” S. Adams, The Dilbert Principle 51 (1996.)

PARTS DEPOT, INC. 693
4. The employee hotline
Two allegations, alleging solicitation of grievances (com-
plaint paragraphs 5g and 5h), pertain to an employee hotline
which Bassett established about late May. Recall that, in his
speech of June 14, Bassett stated, “Remember, our doors are
open; we have the 210 hotline if you have any questions you
want to ask anonymously. I truly want to do everything I can
to communicate openly with you about this important issue.”
(RX 33 at 10.) Bassett testified that the purpose of the hotline
was particularly for employees to ask questions relating to the
union issues. (23:4031.) Specifically, it was for employees
who wanted to remain anonymous respecting their questions.
The questions could be called in and recorded on a confidential
voice mail, and Bassett could later post answers. (20:3609.)
The General Counsel and the Union cite cases involving
clear, even express, solicitations of grievances. A case cited by
the Union even involves a hotline. However, the hotline was
linked to the solicitation and correction of grievances. DTR
Industries, 311 National Labor Relations Board 833, 834
(1993), enf. denied 39 F.3d 106, (6th Cir. 1994.) [The Board’s
motion for clarification also was denied. See 317 NLRB 825
(1995.)] Such cases are inapposite. The closest point to a so-
licitation of grievances is the fact that Bassett’s voice recorded
message stated, after identifying Bassett, as follows (7:1053,
Casco): “This is a confidential hotline. Any problems or ques-
tions you have just submit it after this recording and I’ll answer
you at the bulletin board with no names and confidentially.”
Although Bassett used of the word “problems” on the re-
cording (a term which could suggest grievances), the overall
context shows that the hotline was limited to questions, particu-
larly questions about the Union. Thus, the recording also refers
to questions, and Bassett states that he will post his answers on
the bulletin board—an unlikely spot for personal matters. And
there is no evidence that the procedure was used for general
grievances, much less the correction of such. In his speech on
June 14, Bassett mentioned only “questions,” and he said noth-
ing about “problems.”
Agreeing with PDI’s argument (Brief at 32), that the hotline
was nothing more than a “Section 8(c) communications tool for
PDI to inform its employees about the Union and union cam-
paign issue,” I find it immaterial that here was no preexisting
hotline. Finding no merit to the allegations, I shall dismiss
complaint paragraphs 5(g) and (h.)
5. Opportunity to bid for supervisory position
Complaint paragraph 5(f) alleges that, about May 20, 1994,
PDI offered employees “an opportunity to bid for a supervisory
position in order to discourage employees” from supporting the
Union. Complaint paragraph 12 also alleges it as a violation of
Section 8(a)(3) of the Act. PDI denies. In support of these
allegations, the General Counsel relies on evidence showing
that, without precedent of posting supervisory positions (much
less those for management), PDI posted, for bidding, the vacant
position of warehouse manager. Leo Belaunzaran bid, was
interviewed by management (including Bassett), selected, and
promoted from his position of receiving clerk. [Belaunzaran
had many years of management experience at his previous em-
ployer.]
The General Counsel argues (Brief at 116) that the posting of
the warehouse manager’s vacant position was an unlawful offer
of benefit of promotional opportunities. In testifying, Bassett
did not explain this departure from past practice. On brief PDI
fights a different battle by arguing that promotions are lawful
when pursuant to an established practice. (Brief at 81.) The
issue here is the new practice of posting.
In his fifth and last preelection speech, on July 6, Bassett de-
scribes how, during his tenure as division president, all manag-
ers and supervisors had been promoted locally, and that he had
made a mistake by bringing in Bill Beaman from Tampa to be
the warehouse manager. Bassett said, however, that he had
returned to his “original vow” and brought in someone “who
grew from inside the company.” And, “I think it is now time
for me to step aside and let us all listen to Leo, our new ware-
house manager. Let’s hear about Leo and his vision of the
future here at PDI without a union. Leo—it’s your warehouse
and your meeting.”
Treating Bassett’s July 6 remarks as admissions of fact, an
inference is raised that Bassett’s May 1995 motive for posting
the vacant warehouse manager’s position was to help dissuade
employees from supporting the Union. [Although a party may
not satisfy an affirmative burden by relying on statements in
one of the speeches to prove an independent fact from hearsay,
admissions of a party are not so restricted.] Thus, employees
would see that they did not need the Union to have the oppor-
tunity to bid on this managerial position, and perhaps on future
supervisor and managerial positions. The inference stands
unrebutted. I therefore find merit to complaint paragraphs 5(f)
and 12.
6. Changed attendance policy
Complaint paragraph 11 alleges that, about May 16, 1994,
Bassett “changed the day off policy at Respondent’s Miami
warehouse in order to discourage employees from joining, sup-
porting or assisting the Union.” Respondent denies. Although
paragraph 11 is alleged to be a violation of Section 8(a)(3) of
the Act, I treat it here because it is closely related to the ques-
tion and answers at the first speech on May 17.
As Bassett credibly explains, Mondays and the 26th of each
month are very heavy days for the warehouse. (22:3835.)
Beaman had posted a memo (no copy in evidence) urging em-
ployees not to miss work on those days. (22:3835; 23:4045.) [I
do not credit Ronald Casco’s version, including his recollection
that the memo mandated attendance on such days and prohib-
ited employees from calling in or scheduling appointments on
them. 6:973–976; 7:1047–1050; 8:1275–1276.] Employee
comments about sick days, voiced at the May 17 speech,
prompted Bassett the following day to post, alongside Bea-
man’s memo, a copy of the Employee Handbook’s policy on
attendance, reading as follows (RX 40 at 41):

To maintain a safe and productive work environment,
the Company expects employees to be reliable and to be
punctual in reporting for scheduled work. Absenteeism
and tardiness place a burden on other employees and on
the Company. In the rare instance when an employee can-
not avoid being late to work or is unable to work as sched-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 694
uled, he or she should notify the supervisor as soon as pos-
sible in advance of the anticipated tardiness or absence.
Poor attendance and excessive tardiness are disruptive.
Either may lead to disciplinary action, up to and including
termination of employment.

After that May 18, apparently soon afterwards, Bassett ob-
served that someone had marked a red “X” across Beaman’s
memo. Bassett removed the defaced Beaman memo.
(22:3835–3829; 23:4047.)
As Bassett’s posting action merely responded to employee
comments about sick days by posting the existing attendance
policy alongside Beaman’s memo, ostensibly for the purpose of
providing the full company policy statement, I find no merit to
the Government’s allegation of unlawful motivation. Accord-
ingly, I shall dismiss complaint paragraph 11.
7. Alleged threats in Bassett’s speeches
a. Introduction
Having found that Bassett did not deviate from the prepared
text of his speeches, I turn now to the question of whether, in
the texts, or during questions and answers which occurred at
two speeches [the first speech of May 17 and the fourth speech
of June 29), Bassett made certain alleged threats. The dates
alleged in the complaint are of little value. I granted the Gen-
eral Counsel’s motion to conform the pleadings to the evidence
respecting minor variances such as dates. (17:2648.)
b. Threat to deny wage increases
Complaint paragraph 5(i) alleges that, about May 20, 1994,
PDI, by Bassett, “threatened not to grant employees wage in-
creases” because of their support of the Union. PDI denies.
According to Jean-Claude Demosthene, at the “first speech
Bassett had spoken of going into employees’ files to see
whether there were any employees who could get a pay raise
not given by Beaman. (4:554, 564.) Therefore, at the “May
20” speech [apparently the second speech, June 14], when
Demosthene and others tried to ask questions about raises that
were to be looked into by management, Bassett responded that
they should not “mention” a raise “with that Union going on.”
(4:564.) On cross examination, Demosthene reports that Bas-
sett said they should not “talk about that now.” (4:640.)
Crediting Bassett that there were no questions at the June 14
meeting (20:3598), I find that the image Demosthene’s memory
actually was recalling, in distorted form, was the text which
Bassett read (RX 33 at 8):

An employee asked me this question the other day. If
the employees vote No, will the employees get a pay
raise? To answer this, remember that since we are in an
NLRB election period, management is prohibited from
making any kind of promise. So, we are prohibited by law
from saying anything to you that would even imply that
conditions of employment would be changed if the Union
is defeated. Simply said, we cannot bribe you for your
vote! Now, once this election is over and the majority of
the employees vote No—the Company will be free to con-
tinue to follow its policies without having to negotiate
anything with the Union. We will be free to talk directly
with you about these concerns. Remember too that never
in the Company’s history have we had a pay or a benefit
cut.

Ronald Casco testified that, at the first meeting of May 17,
he and a couple of other employees asked why PDI employees
did not get pay raises “like everybody else around the busi-
ness.” Asked whether Bassett responded, Casco testified, “Not
that I remember.” Also, a couple of employees asked why they
had not gotten raises for the last 2 years. Casco does not re-
member whether Bassett answered. (6:968, 970.) On cross
examination, Casco recalled that he was one of the employees
asking why employees have not received a raise in the last 2
years, and that Bassett answered that it was illegal for him to
talk about money or raises at this time. When Casco also asked
why the employee sitting beside him had not gotten a raise
promised him 2 years earlier, Bassett replied “Because there
was a movement for a union.” (8:1198–1199.) Demosthene
does not recall whether there were any questions asked at the
close of the May 17 speech. (4:636–637.)
Bassett seems clear that, at the first meeting he was not
asked a question about money or raises. He is unable to say for
certain that the debate among employees did not include com-
ments about pay raises. (23:4033–4034.) Even if Bassett was
asked about pay raises at the first meeting, I find he responded
that it was illegal for him to discuss the subject at that time
because “we are in an NLRB election period and management
is prohibited from making any kind of promise.” It is quite
possible that Casco interpreted the quoted portion as a refer-
ence, as he describes, to the Union. Nevertheless, I find that
Bassett, consistent with Casco’s concession that Bassett first
referred to the illegality of his discussing the matter [it may not
be illegal, but that response is a safe harbor] and then further
replied in the language later given in his second speech.
Finding no merit to this allegation of a threat by Bassett, I
shall dismiss complaint paragraph 5(i.)
c. Threat to close
Complaint paragraph 5(j) alleges that, from mid May to late
June, PDI, by Bassett, “threatened to close its warehouse if its
employees selected the Union as their collective bargaining
representative.” PDI denies.
In support of this allegation, the General Counsel and the
Union rely on the testimony of four employees, all of whom
were among those laid off effective August 11, 1994:Angela
Olga (Lampin) Wilson, Jean-Claude Demosthene, Ronaldo
Hernandez, and Aundrai McGregor. In light of my earlier find-
ing crediting Bassett concerning the manner in which he deliv-
ered his speeches, and that he did not deviate from the text, I do
not credit the Government’s witnesses. Although each ap-
peared to testify with sincerity, the problem of the passage of
time and number of speeches and videotapes, as discussed ear-
lier, simply overwhelms the memory. Some examples will
suffice.
Wilson did not give her first affidavit until November 18
(3:447)—over 4 months after the election. On maternity leave
from March 31 until about mid June (3:440, 446), Wilson testi-
fied that, on her return to work, she attended two speeches by
Bassett. (3:467.) At the first speech a video was shown about

PARTS DEPOT, INC. 695
Coca Cola. (3:438, 468, 474.) Before the video was shown,
Bassett greeted the employees and spoke about Bill Beaman
having been at fault, and that he wants everyone to work as a
family. (3:437, 468–471.) The videotape reported that the only
thing the union could bring was unemployment, strikes, dis-
charges at the company’s whim, and the closing of companies.
“All of that was showed in the video.” (3:438, 475.)
After the video presentation, Bassett spoke. He had no pa-
pers and did no reading. (3:438–439.) Bassett said that if the
Union arrived [was voted in] that PDI would be closed (3:438),
that (3:476) the only thing the Union could bring for the em-
ployees was unemployment, that the Union would not support
the employees, that PDI could always close its doors and open
up a new corporation as other companies had done, that PDI
could close the doors and could open new ones. Wilson recalls
that these were Bassett’s statements, word for word, “because if
you could imagine, it was the job that we were going to lose.”
Some 4 to 5 days later, Wilson attended a second speech by
Bassett. The same Coca Cola video was shown, and Bassett’s
remarks were the “same thing” he had said the first time. At
this second meeting Bassett introduced Leo Belaunzaran, and
Belaunzaran spoke. (3:479–480.)
Wilson’s description of the Beaman topic, the Coca Cola
video, and the introduction of Belaunzaran fits the last speech,
on July 6. As the text of Bassett’s July 6 speech (RX 36)
shows, Bassett spoke almost entirely about personalities and
personal relationships, not about collective bargaining, strikes,
or the other hot issues of the campaign. The video, on the other
hand, addressed those hot issues.
If Wilson actually attended two speeches, presumably being
present in sequence, then she attended the fourth speech (RX
35), on June 29, and the third video (RX 25, transcript.) Recall
that the speech of June 29 hits hard about strikes and strike
replacements. Bassett read from the news article about nearly
700 striking members of the Amalgamated who were perma-
nently replaced. Similarly, recall that the June 29 video opened
with the narrator standing in an empty building—deserted be-
cause of restrictive union work rules and a lack of cooperation
with the employer. (RX 25 at 9.) Thus (RX 25 at 9):

In fact, that very thing happened right here at this
plant. The employees voted a union in, and the company
and the union bargained for almost two years. The com-
pany needed concessions from the union on contract
changes to stay competitive, but the union refused. When
the union threatened to strike, the company moved the op-
erations to another plant [emphasis added], and all the em-
ployees at THIS plant had to find work somewhere else.
THAT’S what can [emphasis added] happen when a union
gets in.

Recall also that that later in the June 29 video the narrator
talks about strikes and picket lines. Bassett admits that the
video showed images of an unemployment office, picket line
violence, and a man cocking a pistol. (23:3964–3966.) Earlier
I quoted the narrator’s closing remarks about replaced strikers
having their names placed on a list, and a quotation from a
Board decision that an employer may permanently replace eco-
nomic [emphasis added] strikers. The narrator concludes by
saying (by juxtapositional implication) that, with a union, there
is no such thing as job security.
In short, I find that Wilson’s memory was adversely im-
pacted by the passage of time, and the difficulties compounded
by the fact she attended two speeches and two video presenta-
tions. It is no surprise that her confused recollection differs
from that which Bassett and the videotapes actually said. On
this point, Henry F. Hill’s entry, “Mixed Signals,” in the Wall
Street Journal of December 5, 1995, at A 19, in the “Pepper . . .
and Salt” corner, comes to mind:

What you claim you said Is not what I heard. What
you say you implied Isn’t what I inferred.

Return now to Demosthene’s testimony. According to
Demosthene, in reading his third speech, Bassett said (4:569–
570, 663–668):

He [Bassett] said okay, if you want to go for a union,
this is what’s going to happen. He would rather close
[emphasis added] all the warehouses if the Union passed.
Even if the Union passed, he knows he’s not going to ac-
cept the contract. The Union people will force us to go
into strike, and then the employees will then lose their
jobs. In order to hold PDI’s customer service, you would
have to hire other people to keep the company going. The
only way the employees will get their job again, if one of
the people replace the employees during the strike or are
sick or quit their job. That’s the only way the employees
that are willing to strike would get his job back. Other
than that, there will be no other job even if the person that
replaced him was still working.

Compare that with the following excerpts from the speeches
and videotape transcripts. First, a quote from Bassett’s third
speech, on June 22 (RX 34 at 5):

Bringing the Union in here means politics; it means
hard core negotiations, it means hard bargaining, it means
a lot of accusations and maybe a lot of arguing at the bar-
gaining table. Maybe it means the Union takes a strike
vote to try to put pressure on the Company to cave in.
This could lead to a contract. This could also lead to a
strike. That could mean no paychecks, no unemployment
[compensation], and possibly being permanently replaced
by other workers. Believe me—this can be very unpleas-
ant.

Second, compare with this additional excerpt, from the nar-
rator’s remarks as shown in the transcript (RX 25 at 16) of the
third video (Job Security—Union Style) shown during the
fourth speech (RX 35) on June 29:

And what happens when a strike finally ends? What
happens when the picket line comes down? Well, no one
really knows for sure, but one thing is for certain: the
company has the right to keep operating with the replace-
ment workers it hired during the economic [emphasis
added] strike . . . and the strikers don’t have to be returned
to their jobs. That’s right. The strikers’ names will be put
on a list, and they will be returned to work as jobs come

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 696
open that they are qualified for. But that could be weeks,
months, even years . . . and sometimes never.
In the last few years, some very visible strikes proved
the point, while thousands of strikes we’ve never heard
about also made it clear that strikes are risky to employees
and verified the National Labor Relations Board statement
in a recent case when it said: “An employer may perma-
nently replace economic [emphasis added] strikers.”

Third, recall that during his fourth speech on June 29 (RX
35), Bassett showed a news article about some 680 strikers who
had been permanently replaced after a 54-day strike. Bassett’s
closing comments were (RX 35 at 6–7) (with the news article
Bassett read from being page 15 of RX 35):

And what happened next is what we just saw on the
tape [the third videotape transcript, RX 25, just quoted
from]. When the 700 workers tried to go back to work,
they found out that only about 20 of them had jobs. [Read
from article.] “The remaining workers have been put on a
recall list and will be called back as a situation warrants.”
The Union said [Read article] “The employers have cho-
sen to reject our offer, which is made in good faith and is
thumbing their noses at us.” Folks, this is [these are] the
facts. Here is living proof that in April 1994 almost 700
Clothing & Textile Union workers, who had put their faith
and trust in the Union, went on strike and were perma-
nently replaced. This is one specific example of what can
happen with unions. We have seen this before right here
in our community. Everyone remembers Eastern Airlines.
It has devastated not only the jobs that were directly pro-
vided by Eastern but all of the other businesses that used
to be up there on 36th Street. We all know people in this
community who were devastated.

From the fourth video, “25th Hour,” shown on July 6 during
the fifth speech (RX 36), compare this passage from the narra-
tor’s remarks, with quotes from two Riverside Hospital picket-
ers interspersed (RX 26 at 11–12):

Another thing to think about is being permanently re-
placed, something the union doesn’t often talk about. But
we’re sure the thousands and thousands of union workers
who have lost their jobs [emphasis added] to replacement
workers would have something to say. These picketers
were asked if they were worried about being replaced:
RIVERSIDE HOSPITAL QUOTE: “No the union won’t
let it, the union won’t let it.” Management did what it had
to do to say [sic; stay] open and keep providing services to
its customers: it hired replacements. The picketers found
out how much the union’s promises are worth.
RIVERSIDE HOSPITAL QUOTE: “So we showed up yes-
terday at 7:00. They told us to go home that they had re-
placed us. We’ve been replaced.”
You get the picture. Strikers get replaced very often
and statistics show it is happening more and more. And
those replacements have the legal right to keep that job for
as long as they want. The striker does get put on a prefer-
ential hiring list, but he doesn’t get his job back until the
replacement quits or is terminated.

Crediting Bassett’s denial that he ever said he would close
PDI if the Union got in (22:3842), and in light of the findings I
have made concerning the manner in which Bassett delivered
his speeches, I find that he did not so threaten. I disbelieve the
contrary testimony by Wilson and Demosthene (quoted above),
Ronaldo Hernandez (10:1576–1577), and Aundrai McGregor
(13:2032.) Moreover, I note that Ronald Casco, who testified
as a witness for the Government concerning, among other
items, Bassett’s preelection speeches (Casco attended three
speeches, 8:1195), does not assert that Bassett said PDI would
close. Based on my findings, and the record, I shall dismiss
complaint paragraph 5(j)—which alleges a plant-closing threat
by Bassett.
d. Threat to discharge
Complaint paragraph 5(k) alleges that, about mid May to
mid June, Bassett “threatened to discharge employees if they
selected the Union as their collective bargaining representa-
tive.” PDI denies.
The General Counsel relies on testimony of the previously
named witnesses that Bassett threatened to close, and also that
in a strike employees would lose their jobs to replacements—
evidence contrary to the credited testimony of Peter Bassett. In
addition to that evidence, I note that Bassett acknowledges that
at the end of his fourth speech a question was asked, at more
that one speech session, regarding the matter of strikers being
replaced by permanent replacements. Bassett specifically re-
calls one formulation of the question as starting with, “Do you
mean that . . . ?” followed by the topic of (the strikers) being
replaced by permanent replacements. (21:3762–3764, 3769.)
Bassett responded by (as demonstrated at trial) rereading the
portion of his speech dealing with the topic (21:3764–3769) RX
35 at 6–7) [The news article Bassett reads from describes how
nearly 700 strikers, members of the Amalgamated, were re-
placed by permanent replacements]:

And what happened next is what we just saw on the
tape. When the 700 workers tried to go back to work, they
found out that only about 20 of them had jobs. [Read from
article]. “The remaining workers have been put on a recall
list and will be called back as a situation warrants.” The
Union said [Read article] “The employers have chosen to
reject our offer, which is made in good faith and is thumb-
ing their noses at us.” Folks, this is the facts. Here is liv-
ing proof that in April 1994, almost 700 Clothing & Tex-
tile Union workers, who had put their faith and trust in the
Union, went on strike and were permanently replaced.

Finding no merit to this allegation, I shall dismiss complaint
paragraph 5(k.)
e. Implied threat of unspecified reprisals
Complaint paragraph 5(m) alleges that, about June 29, PDI,
by Bassett “threatened employees with unspecified reprisals” if
they selected the Union. PDI denies.
The General Counsel fails to specify the evidence on which
the Government relies to support this allegation. The allegation
date suggests that Bassett’s fourth speech (RX 35), on June 29,
is the target. Finding no such implied threat, I shall dismiss
complaint paragraph 5(m.)

PARTS DEPOT, INC. 697
f. Threat of futility
Complaint paragraph 5(l) alleges that PDI, by Bassett, on
dates from mid May to about June 29, “informed employees it
was futile for them to select the Union” as their representative.
PDI denies.
In support of this allegation, the General Counsel again relies
on the witnesses whose testimony is contrary to the credited
version given by Peter Bassett. For example, I have not cred-
ited the testimony that Bassett said he would close, or “rather
close,” the warehouse if the Union came in. Nor have I cred-
ited the testimony that Bassett threatened discharge by saying
strikers would be permanently replaced and “lose their jobs.”
[The closest reference to that phrase came during the fourth
video, on July 6, RX 26 at 11, as one of the narrator’s com-
ments, and is quoted earlier.]
Consistent with the General Counsel’s trial position that the
complaint attacks what was said at the meetings (23:4056–
4058), neither the General Counsel nor the Union, on brief,
argue alternatively that the written text of the speeches, with the
videotapes (in the form of the transcripts) adopted, in effect, by
Bassett, taken together, threaten futility. As neither the Gov-
ernment nor the Union makes such an alternative argument, I
need not explore the merits of arguments not advocated. Ac-
cordingly, finding no merit to the Government’s theory of vio-
lation, I shall dismiss complaint paragraph 5(l.)
8. Fleet Supervisor Robert Williamson
a. Introduction
Three allegations are leveled against Fleet Supervisor Robert
Williamson in complaint paragraph 6. Paragraph 6(a) alleges
that PDI, by Williamson, at the Miami warehouse, about May
13, 1994, “instructed employees not to engage in union and or
concerted protected activities.” PDI denies.
Paragraph 6(b) alleges, that, about June 9 and 29, William-
son “interrogated employees about their support of, and activi-
ties on behalf of the Union and the union support and activities
of other employees.” PDI denies.
About June 20, paragraph 6(c) alleges, Williamson “ prohib-
ited employees from waiting for employees in the facility, in
order to discourage employees from engaging in union activi-
ties.” PDI denies.
Persuaded by the testimony of the General Counsel’s wit-
nesses, and unfavorably impressed with the testimony of Wil-
liamson, I credit the witnesses of the General Counsel respect-
ing complaint paragraph 6.
b. May 1994 coercive interference
Ronald Casco testified that, after Fleet Supervisor Robert
Williamson attended one of two meetings held that day (appar-
ently some time the second half of May 1994) for supervisors,
Williamson returned and, as Casco was about to leave for the
day, told Casco that he (Casco) was part of management and
would have to be on the Company’s side. Casco replied that he
would be on the side he thought was good for him. And, Casco
asked, if he were part of management, why was he not called
into one of the supervisors’ meetings that day. To William-
son’s invitation that Casco come in and discuss the matter,
Casco declined, saying he needed to leave. Casco does not
recall the date of the meeting. Before this occasion, William-
son had never told Casco he had to be on management’s side.
Casco recalls no instance of ever having been told he was part
of management or that he has any authority, for example, to
recommend that an employee be disciplined. Casco wore a
worker’s brownish shirt, and supervisors wore different shirts
which, unlike the shirt Casco wore, are marked “Supervisor.”
(6:955–964; 8:1272–1274.)
Williamson denies ever having such a conversation with
Casco, and acknowledges that he never saw Casco, a checker
around June 1994, directing employees, assigning them work,
or attending any meetings of supervisors. (20:3383–3384.)
PDI does not contend that Casco was a statutory supervisor.
The General Counsel argues that, if Casco is credited, a vio-
lation is established because Williamson, knowing that Casco
was not a supervisor, nevertheless told him he had to be on
management’s side. Noting that Williamson never corrected
his misstatement to Casco, and agreeing with the General
Counsel, I find merit to complaint paragraph 6(a.) I therefore
find that such a statement would reasonably tend to be coercive,
especially when not corrected, and that PDI therefore violated
Section 8(a)(1) of the Act, as alleged.
c. June 1994 interrogation
(1) June 9—Osberto Jerez
Osberto Jerez gave supporting testimony for this allegation.
Jerez drove a truck for PDI from July 1992 to August 1995.
(13:2092–2093.) Robert Williamson was his supervisor.
(13:2097.) After signing a union card (GCX 12–44) on May 9
at the Tip Top Café (13:2093, 2110), Jerez distributed several
union cards (13:2110, 2118.) Jerez was one of the employees
who signed the May 12 and 19 letters (GCX 2), delivered some
time during May, notifying Bassett and PDI that a majority of
the Miami employees had signed cards for the Union.
(13:2125.) Jerez also was one of those employees, including
Vivian Fortin, who appeared as subpenaed witnesses ready to
testify at the June 1 representation hearing. (13:2120.) Finally,
Jerez is one of the seven Miami employees pictured on the face
of the leaflet (GCX 20) the text of which solicited support of
the employees at PDI’s Ft. Lauderdale facility in adjoining
Broward county. (13:2102.) That leaflet was distributed dur-
ing June to employees at both Ft. Lauderdale (7:1067–1068,
Casco) and Miami (9:1496, Fortin.) By early June, therefore,
Jerez was an open supporter of the Union.
Jerez testified that, about June 9, as he was about to leave on
his route, Supervisor Williamson called him to the back of the
truck where Williamson, in an elevated voice, and with a seri-
ous and angry tone, asked Jerez what his picture was doing in a
“bulletin” sent to the Ft. Lauderdale warehouse. Williamson
said that Jerez should not be part of that group. The administra-
tion [management], Williamson added, already knew the lead-
ers of the Union, and he named Vivian Fortin, Ronald Casco,
Jose Castro, David Rondon, and Albert Rosado. (13:2097–
2101, 2124.) Williamson denies that there was any such con-
versation, asserting that to have done so would have violated
the TIPS instructions (20:3381–3383), but he admits that Bas-
sett showed him a copy of the leaflet, containing, among others,

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 698
a picture of Jerez, as Bassett was preparing for, apparently,
Bassett’s second speech, delivered June 14. (20:3377–3380.)
Although Williamson asserts that he thinks he would have
gotten into trouble had he violated TIPS, he does not think a
violation of the TIPS instructions would have affected his job.
(20:3418–3419.) Williamson’s description of his understand-
ing of the significance of the picture of Jerez and the other em-
ployees on the leaflet (GCX 20) is rather confusing. William-
son testified that he was “shocked” to see Jerez and Castro
among those in the photo (they were the only two he had a
chance to recognize in his “glance” at the leaflet), but he did
not know what their presence in the picture meant, and he
thought that they were present merely as employees, or leaders,
not as supporters of the Union. However, he viewed them as
supporters, and does not know if that includes leaders, nor does
he know if the employees pictured were leaders. Williamson
never came to believe that the employees pictured on the leaflet
were either supporters or leaders of the Union. When I ex-
pressed confusion, Williamson commented, “I’m confused,
too.” (20:3380, 3425–3427, 3456–3460.)
Crediting Jerez, I find that Supervisor Williamson remarked
as described by Jerez. Although the allegation, complaint para-
graph 6(b), attacks an interrogation (prompting PDI to argue no
violation, even if Jerez is credited, as it involved an open sup-
porter of the Union), the essence of the remarks, with their
elevated and angry tone in making a statement rather than in-
quiring, are in the nature of an implied threat of unspecified
reprisals rather than an interrogation. In view of this substantial
variance from the allegation pleaded, I shall dismiss complaint
paragraph 6(b) as to June 9, 1994.
(2) June 29—Albert Rosado
Hired in August 1993, Albert Rosado drove a truck for PDI
until late October 1994 when he was fired for being off his
route. (13:2127–2128.) Ironically, he was fired by one of the
(then) bargaining unit employees to whom he had distributed a
union card—Leo Belaunzaran. (13:2129, 2134–2135, 2165–
2166.) The National Labor Relations Board charge protesting
Rosado’s discharge was dismissed. (13:2161.) For about a
week before the July 7–8 election, Rosado openly wore a union
hat and T-shirt during the lunch period and after work.
(13:2167–2168.) Rosado signed a card (GCX 12–45) at the Tip
Top the evening of May 9 (13:2129–2130.) Rosado also signed
the Spanish version of the May 12 (GCX 2b) and May 19
(GCX 2d) letters to Bassett in order “to let Peter Bassett know
that I was supporting the Union.” (13:2168–2170.)
Robert Williamson was Rosado’s supervisor. (20:3387.)
Rosado testified that, about noon the same day that Bassett
gave his June 29 speech, Supervisor Williamson approached
Rosado as he (Rosado) was at the dock loading his truck. Just
the two were present. Although it is unclear whether there was
one or two conversations at about the noon hour, the initial
topic was Williamson’s telling Rosado to attend Bassett’s
speech that day. (13:2153, 2172.) For the second topic, Wil-
liamson asked Rosado if he knew who was the head of the Un-
ion and who had signed cards for the Union. Contrary to the
truth (13:2173), Rosado replied that he did not know. Rosado
continued loading his truck, and Williamson left without saying
anything further. (13:2152–2153, 2173–2174.) Williamson
denies any such interrogation. (20:3388.)
Crediting Rosado, and disbelieving Supervisor Williamson, I
find that the interrogation occurred and that it was coercive.
Unlike some casual inquiry, especially among friends, about
the reasons for wanting a union, Williamson’s questions bore
the mark of Cain—expressly suggesting future retaliation
against not only the leaders, but also against those who, by their
signatures on cards, were responsible for the upcoming union
election. Such interrogation is coercive, and therefore a viola-
tion of Section 8(a)(1) of the Act, even if the interrogated em-
ployee is an open supporter of the Union. Finding merit to
complaint paragraph 6(b) as to June 29, I therefore find that
PDI violated Section 8(a)(1) of the Act by Supervisor William-
son’s June 29, 1994 interrogation of Albert Rosado.
d. June 22, 1994—Ronald Casco denied access
After his work shift ended at 5 p.m. about June 22, Ronald
Casco testified, he went to the cafeteria to wait for Vivian
Fortin because Fortin needed a ride. The time was about 5 to
10 minutes after 5 p.m. As Casco was enjoying a soda and
some crackers and talking with five or six drivers who were
there on break, Supervisor Williamson came and told Jerez,
“Get out of the building. You already punched out. You’re not
supposed to be in the cafeteria when the drivers are still on
break.” Replying (contrary to the truth) that he did not know
the drivers were on break, Casco added that he had punched
out, was waiting, and that there was no rule requiring him to
leave the cafeteria after he had punched out.” Ignoring Casco’s
response, Williamson repeated his command that Casco leave
the warehouse. Casco complied. During his tenure at PDI,
Casco testified, the only employees told to leave the premises
after their work shift have been those who were fired. (7:1070–
1073.) In addition to his having signed the May 1994 letters to
Bassett (GCX 2), Casco also distributed union literature to
Supervisor Williamson at the lunch truck outside about June 9.
(7:1069–1070.)
According to Williamson, he recalls an incident one day that
June on seeing Casco in the cafeteria after his shift had ended at
4:30 p.m. Casco was talking in Spanish (Williamson does not
understand Spanish) with some drivers, including Jose Castro
and Cesar Umana. Because it was unusual for Casco to be in
the cafeteria with the drivers, Williamson reported the matter to
his supervisor, Leo Belaunzaran. Williamson did not speak
directly to Casco because he felt the proper action was to report
to Belaunzaran. According to Williamson, Belaunzaran said he
would look into the matter. Williamson denies telling Casco to
leave the property, admits that he knows of no rule requiring an
employee to leave after work, and claims that he has reported
similar incidents involving employees other than Casco.
(20:3384–3387, 3427–3437.) Williamson asserts that, other
than the June incident involving Casco, he has never observed
any employees remaining in the cafeteria after their work shift
has ended. (20:3471, 3475.) Usually, Williamson states, if
employees are waiting for a carpool ride, they wait in a rest
area outside the lunchroom. (20:3474.)
In crediting Casco, and disbelieving Williamson generally, I
note that Williamson spoke harshly to Cascom—overkill moti-

PARTS DEPOT, INC. 699
vated, I find, by a belief (erroneous, it turns out) that Casco was
discussing the Union with the drivers. [Actually, Casco was
not (7:1072), although that fact is immaterial.] While William-
son’s concession, that there was no rule requiring Casco to
leave the cafeteria (20:3435), is in the nature of a confession
(no such rule) and avoidance (immaterial because did not enter
cafeteria but went to Belaunzaran), the admitted fact remains.
Although Williamson disputes Casco’s version, at trial he of-
fered no business justification for commanding Casco to leave.
Agreeing with the General Counsel, I find that Williamson’s
command that Casco leave the warehouse amounted to an
unlawful no-access rule. Tri-County Medical Center, 222 Na-
tional Labor Relations Board 1089 (1976.) Accordingly, find-
ing merit to complaint paragraph 6(c), I therefore find that PDI,
as alleged, violated Section 8(a)(1) of the Act by Supervisor
Williamson’s June 22, 1994 command that Osberto Jerez leave
the warehouse cafeteria. Postal Service, 318 NLRB 466, 466
(1995); Nashville Plastic Products, 313 NLRB 462, 463
(1993.)
9. Office Manager Luisa Pacheco
Complaint paragraph 7 alleges that, about June 20 at Miami,
PDI, through Luisa Pacheco, “threatened employees with un-
specified reprisals because they supported and assisted the Un-
ion.” PDI denies.
Arriving early, about June 20, at the cafeteria for one of
PDI’s meetings concerning the Union, driver Jose Castro found
only Office Manager Luisa Pacheco present. Pacheco greeted
Castro with, “Mr. Peter Bassett is upset with you because you
sold yourself to the Union.” (11:1789.) [Recall that Castro was
one of the signers of the May 12 and 19 letters (GCX 2), and
that he is one of the seven employees in a photo made part of
the Union’s leaflet (GCX 20) which was distributed in the first
half of June.]
Castro asked Pacheco why she was saying this, and she re-
plied by asking whether he had forgotten that PDI had made
him a loan. “Yes,” Castro answered, but he had already repaid
the loan. That ended the conversation because others began
arriving for the meeting. (11:1788; 12:1855–1857.) Castro’s
time estimate for the conversation of “not less than 5 minutes”
(11:1790) seems strangely long, and would make more sense if
the estimate were “less than 5 minutes.” In any event, Pacheco
denies having any conversation with Castro about Bassett, and
denies telling Castro that Bassett was upset with him because
he had sold himself to the Union. (19:3247.) Castro testified
more persuasively than did Pacheco, and I credit Castro.
Having credited Castro, I find that Pacheco’s statement rea-
sonably suggests that bad things would happen to Castro in the
future because the division president himself was upset with
Castro over the latter’s having sold himself to the Union. What
really rankled Bassett, as revealed by Pacheco’s comments, was
Castro’s treachery, in PDI’s view, in supporting the Union after
having accepted the favor of a loan from PDI. Pacheco’s re-
marks constituted a threat of unspecified reprisals for assisting
the Union, and they violated Section 8(a)(1) of the Act, as al-
leged by complaint paragraph 7. I so find.
10. Warehouse Manager Leo Belaunzaran
Complaint paragraph 8 alleges that, about May 27, 1994,
PDI, through Warehouse Manager Leo Belaunzaran, at the
Miami warehouse, “threatened employees that it would not
confer any wage increases until the Union activities had
ceased.” PDI denies. Jean Claude Demosthene testified in
support of this allegation.
According to Demosthene, at the second meeting, where the
“hotline” was mentioned, which Demosthene dates as about
May 20 or (Sunday) May 22, and which, I have found, was held
on June 14, employees tried to ask Bassett about pay raises.
When Demosthene and others asked about a pay raise, Bassett
assertedly told them not even to think about, or mention, a pay
raise “with that Union going on.” (4:564, 654.) Demosthene
states (4:564) that he asked because at the first meeting May
17) Bassett had told (4:554, 658) employees to give him time to
inspect the employees’ files to determine whether any employ-
ees were entitled to raises not given by Bill Beaman. Cross
examination disclosed that, in fact, Demosthene had not been
one of those asking questions about raises. (4:640.) Indeed,
only one employee asked a question about raises (4:653), and
he asked (4:654) when he was going to receive his own raise.
When Bassett replied, as described by Demosthene,
Demosthene had his answer and did not ask his own question
about raises. (4:657.)
About a week later, or about May 27 (4:566, 639, 654), and
in the absence of any report by Bassett that he had inspected the
files (4:658), Demosthene went to see Belaunzaran. [If this
came a week after the second speech, then the date would have
been June 21.] Demosthene’s hiring anniversary was in April,
and, after allowing an extra month to see if he would receive a
pay increase, and receiving none, Demosthene went to see Be-
launzaran to ask about it. According to Demosthene, Belaun-
zaran told him “not to even think” about a raise “because of the
Union.” Demosthene responded that the employee handbook
did not refer to a union. [As might be expected, the “Perform-
ance Evaluation” section of the employee handbook, which
briefly mentions merit pay adjustments, has no qualifying lan-
guage about union campaigns, current or otherwise. RX 40 at
15.] Belaunzaran responded that no one would receive a raise
“because of the Union,” not even Belaunzaran himself. (4:566–
569, 654–658.)
For his part, Belaunzaran denies having any such conversa-
tion with Demosthene. (18:3069, 3114.) His instructions were
not to discuss pay raises with anyone during the organizing
campaign, and he followed those instructions. (18:3119.) If
anyone asked, and Belaunzaran does not recall that anyone did,
he told them that he could not discuss it with them at that time.
(18:3119–3120.)
There is some testimony by Belaunzaran, during the Union’s
cross examination, concerning whether, on June 16, 1994,
Demosthene was promoted from stocker to checker, with a pay
increase of 25 cents per hour. Belaunzaran confirms, on cross
examination, that his pretrial affidavit so states. (18:3117.) As
the Charging Party elicited the evidence, I consider the pretrial
statement as an admission of the fact by PDI’s warehouse man-
ager.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 700
The only relevance here of the promotion and pay increase is
twofold. One, it possibly was the occasion for a conversation
between Demosthene and Belaunzaran about the promotion and
pay increase. Belaunzaran distinguishes between pay raise of
the merit and general types, and a pay increase incident to a
promotion (18:3117, 3122–3123), denying any conversation
with Demosthene about the former (18:3118), recalling that
either he or a supervisor could have notified Demosthene of a
promotion (18:3120–3121), and declaring only that he may
have discussed a pay increase incident to a promotion with
Demosthene. Certainly the time frame fits the sequence of
speeches better, for a week after Bassett’s second speech of
June 14 would have been June 21. But, as PDI observes (Brief
at 41), the date of June 21 creates a new contradiction–it is
highly unlikely Demosthene would have been asking about a
raise just a week after having been promoted and his pay in-
creased.
The second aspect of relevance pertains to a theory advanced
at trial by the General Counsel. The General Counsel there
asserted (4:681–682) that a possible reason for Demosthene’s
going in to Belaunzaran and asking for a raise is that for a time
Demosthene believed that PDI viewed him has a pro-company
vote. This belief is based on at least one, and probably two,
facts. First, when Bassett ended his first speech (on May 17),
Demosthene remarked for all to hear that the employees should
give Bassett a chance to make good, and if he did not, “We’ll
go back to the Union.” (4:633, 636, 679–680; GCX 16 at 3.)
Second, Demosthene was promoted from stocker to checker on
June 16. That time frame would fit a late May visit by
Demosthene to talk with Belaunzaran about a pay raise. The
problem is that Demosthene ties his visit to Bassett’s second
speech, and that did not occur until June 14. In any event,
about mid-June, apparently after he was promoted, Demosthene
began having almost daily conversations with Monica Russo,
the Union’s representative, at the gate. From that, and his con-
versations with Ronald Casco, Demosthene formed the belief
that PDI viewed him as favoring the Union. (4:691–692.)
Discussion of these “possible” motivations and sequences
amount to factual byways, not really pursued by the parties on
brief. Indeed, the record is only partially developed concerning
these byways. I have described them because they assist in
demonstrating the uncertainty which surrounds Demosthene’s
description of the facts. As discussed earlier in conjunction
with the allegation of a threat by Bassett to withhold pay in-
creases because of the Union, an allegation I dismiss based on
crediting Bassett, I found there that Demosthene’s memory had
distorted what Bassett actually had said at the June 14 meeting
about pay raises. I further found that there were no questions at
the second meeting.
In short, I am unable to rely on Demosthene’s description.
For example, Demosthene initially asserts that Bassett, at the
second meeting, told employees who asked, including
Demosthene, “not even to think about a raise with that Union
going on.” (4:564.) That changed, on cross-examination, to
“not to even talk about that now.” (4:640.) Demosthene then
disclosed that someone else, not him, had asked (4:640, 653),
and that employee had asked about a pay raise for himself
(4:654), to which Bassett assertedly advised (4:654), “not to
even think about a raise with that Union.” Finally, Demosthene
concedes that he told the Board agent taking his pretrial affida-
vit that Bassett said he would not answer the question about a
pay raise. (4:658.)
Thus, Demosthene’s erratic trial description crumbles as he
proceeds. Moreover, I note that the phrase he first assigns to
Bassett—“not to even think about a raise”—he also (4:566-
567) accuses Belaunzaran of making. Belaunzaran could have
picked it up from Bassett had Bassett made the statement, but I
have found that Bassett did not make it. Not crediting
Demosthene’s account, and crediting Belaunzaran that he had
no conversation with Demosthene about a (merit or time-in-
grade) pay raise, and did not make the remarks alleged by
Demosthene, I shall dismiss complaint paragraph 8.
11. Supervisor Hector Ortiz
Two allegations are involved here, both alleging violations
by Supervisor Hector Ortiz in early July, the first a threat of
discharge because of union support (complaint par. 9), and the
second (par. 10) an offer of money to discourage support of the
Union. PDI denies. Jose Castro testified in support of the alle-
gations, but Ortiz, who no longer works for PDI, did not. Al-
though Castro had difficulty with dates, I credit his unrebutted
testimony. Neither party cites any cases, but PDI does present
argument that the facts, even if Castro is credited, do not rise to
the level of a violation. Although briefing the facts generally,
the General Counsel presents no argument.
The threat-of-discharge incident (par. 9) occurred either
about mid-August (11:1796), in July (11:1801), or in June
(12:1859.) On this occasion, whenever it was, as Castro and
Ortiz worked together at loading dock eight, they debated the
pros and cons of the Union. After some discussion (none of
which is described in the record), Castro asked Ortiz by what
moral authority did he state his points when he formerly took
sexual advantage of a woman working under his supervision.
Ortiz said he could have Castro fired for making that remark.
(11:1795–1796.)
Clearly Ortiz’ threat was directed at Castro because of Cas-
tro’s accusation, not because Castro supported the Union. Al-
though I could speculate about a theory, by analogy to cases
involving union stewards in heated discussion of grievances,
such speculation is precluded. Accordingly, as the legal theory
expressed in the allegation is without merit, I shall dismiss
complaint paragraph 9.
The offer-of-money incident (par. 10) occurred either in
early July before the election (11:1791, 1796) or in June
(12:1859, 1868.) On this occasion, whenever, it was, a grin-
ning Ortiz, while acting as if to remove his wallet, told Castro
he would give him $200 if the Union did not win so “you good
guys could try and organize yourselves again.” Castro told
Ortiz to go ahead and give him the money. Apparently Ortiz
declined that suggestion. (11:1790–1790.) In giving his pre-
trial affidavit, Castro states (12:1867), he considered the inci-
dent a joke.
The facts establish that Ortiz’ conduct was nothing more
than a silly joke. The allegation’s theory is that a serious offer
was made to bribe Castro to vote NO in exchange for the pay-
ment of $200. The undisputed facts fail to support that theory.

PARTS DEPOT, INC. 701
There are many cases which discuss disparagement of unions
and union supporters. As the General Counsel advances no
legal theory of unlawful disparagement on the facts presented
here, I need not discuss that theory or Section 8(c) and the free
speech right, absent a threat, to engage in parody, ridicule,
comedy, jokes, or even insults. Because the only legal theory
advanced is that set forth in the allegation, and as the evidence
fails to support the allegation, I shall dismiss complaint para-
graph 10. Turn now to the remaining allegations of discrimina-
tion.
F. Alleged 8(a)(3) Discrimination
1. Introduction
Earlier I covered two allegations (pars. 11 and 12) which are
related to Section 8(a)(1) allegations of coercion. Four dis-
crimination allegations remain (pars. 13-16), and two of these
(pars. 14 and 16) also allege violations of Section 8(a)(5) of the
Act. The major portion of the remaining discrimination allega-
tions pertain to alleged discrimination against Vivian Fortin
(pars. 13, 15, and 16), with paragraph 14 attacking wage in-
creases granted in July. The descriptions by Bassett and Vice
President Mark Noble of the wage increases, layoffs, and dis-
charge of Vivian Fortin show, as PDI presents it, that there is a
common background—they are directly related to PDI’s efforts
to reduce costs and to improve productivity. I therefore first
summarize this background.
2. Background
As I mentioned earlier, when describing PDI’s operations
and senior management, about June 1, 1994, Al Woods became
PDI’s president. (17:2736, 2820; 22:3923.) According to Peter
Bassett, even before Woods arrived, Robert Tennant, the corpo-
rate Human Resources Director (20:3595), came to Miami dur-
ing the week of May 16, the week following the filing of the
Union’s election petition. (21:3816, 3818; 22:3936.) One of
the matters Bassett and Tennant discussed was the fact that
Bassett’s division was not conforming to the corporate policy
of annual performance evaluations about the date of an em-
ployee’s employment anniversary. Indeed, the November 1991
Employee Handbook states that annual performance reviews
“are to be scheduled every 12 months,” with “merit-based pay
adjustments” to be awarded in an effort to recognize “truly
superior employee performance.” (RX 40 at 15.)
Bassett admits (21:3817–3818) that he had not been follow-
ing corporate policy and had deferred such evaluations, some-
times for several months. (21:3816–3818.) [The evidence
suggests that some deferrals were not just for months, but for
years. Indeed, Bassett concedes he came to believe that his
failure in this regard “might have” contributed to the employ-
ees’ seeking representation by the Union. 22:3874.] Tennant
observed to Bassett that the turnover rate in Bassett’s division
(or perhaps just Miami) was about 60 percent. (21:3819.) The
two decided that a wage survey should be done, to proceed with
granting whatever wage increase was indicated to be competi-
tive, and to begin, as soon as possible, performance evaluations
which would lead to merit pay raises. (21:3819; 22:3935–
3936.) After consulting with counsel, Bassett decided to hold
implementation of the general wage increase and the perform-
ance reviews until after the election. (21:3820.)
Within a day or two following the July election, or about
July 10, Tennant informed Bassett and Al Woods that his wage
survey had revealed a need for a general pay increase of 25
cents per hour to be competitive in the south Florida area, and
he recommended to Bassett and to Woods that such a general
pay increase be granted immediately. Bassett (and Woods,
presumably) approved, and a general pay increase for all south-
ern Florida personnel (from Miami to Fort Myers—some 120
employees, 21:3821; 23:4045) of 25 cents per hour was granted
immediately. (21:3820–3821; 22:3935–3937.) Although Bas-
sett, on two previous occasions, had approved general pay in-
creases on a departmental basis (some 10 to 12 Miami tele-
phone room employees in June 1993, and no more than 20
Miami truckdrivers in 1992: 21:3823–3824; 23:4044–4045)—
he apparently had never approved or granted a general wage
increase for all employees, such as that for the approximately
120 employees involved here.
As discussed in more detail in a moment, on July 20 Bassett
announced to employees that they would received a general
wage increase of 25 cents per hour, and that it would be re-
flected in their first August paychecks. (GCX 158 at 3;
21:3815; 23:4083, 4088.) The performance evaluations began
in July and continued into September, with various individuals
receiving merit pay increases. (21:3816, 3823; 22:3937–3938.)
Some of those who received merit pay increases were laid off
within a few days of receiving their August merit increase.
(22:3937.)
Bassett concedes that, as of the time he was implementing
the general pay increase, and the performance reviews which
could lead to individual merit increases, “top management”
(meaning, outside of himself, Al Woods—22:3922) was con-
cerned about the labor costs at the Miami facility. (22:3938.)
Indeed, as Bassett explains generally, shortly after Woods ar-
rived as PDI’s president, the accounting department at the Roa-
noke headquarters supplied Woods with production numbers.
These numbers and computations became, or were incorporated
into, a documentary analysis called a “performance shell.”
(22:3931–3932.) The performance shell reflected, Bassett testi-
fied [no copy of the performance shell is in evidence,9] that
Bassett’s division was below the corporate standard for produc-
tivity. (22:3932.) PDI measures productivity in terms of annu-
alized sales per FTE (full-time equivalent, or an employee who
works 40 hours a week) by operation. (17:2741–2743, Noble;
22:3931; 23:4072–4073, Bassett.)
Pursuant to Woods’ direction, sometime between June 20
and July 11, Bassett testified (22:3932, 3934), Bassett submit-
ted a cost reduction plan (plan) to Woods. The plan included a
productivity analysis and suggestions for reducing the number
of employees. The plan was discussed with Woods and other
top managers in a telephone conference call on a Monday after
the election. During that conference call, Woods expressed

9 The complaint does not allege that the reductions in force for Au-
gust and October 1994 were unlawfully motivated. Much of the evi-
dence regarding Bassett’s cost reduction plan, to be described in a
moment, was elicited during cross-examination of Bassett.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 702
concern about the FTEs (a shorthand reference to PDI’s for-
mula for measuring productivity.) That conference call was
followed by a visit by Woods to Miami where there was a
“much more detailed discussion.” (22:3929–3932.) Although
Bassett was not able to give the precise date of either the tele-
phone conference call or of the subsequent Miami visit by
Woods, the approximate date of the conference call apparently
was about late July or early August when, Bassett testified,
Woods first expressed concern about the productivity problems
which Bassett was experiencing. (22:3923.) This concern
apparently differed from the concern expressed in June when
Bassett’s numbers in the performance shell were subpar and
Bassett was directed to furnish a cost reduction plan. With this
late July-early August expression, Woods said he thought PDI
was overstaffed by 25 to 40 employees. (22:3923.)
Although it jumps ahead in the story, some clarity is pro-
vided by here considering some of Noble’s testimony. As I
later discuss in more detail, Vice President Mark Noble handled
the October 1994 layoffs at Miami, including the layoff of
Vivian Fortin. Although Noble was not involved in Miami’s
August 1994 layoffs, he testified that Woods, unhappy that PDI
(assertedly) was below the industry’s standard for productivity,
“mandated” that PDI reduce its staff by 40. Woods told Noble
to reduce the support staff in Roanoke by 10 and the warehouse
distribution group by 30. (19:2739.) Although Woods did not
testify, and even though the evidence is rather skimpy concern-
ing the corporate decision to have two layoffs in 1994, Presi-
dent Woods apparently decided on one layoff in August, and a
second one in October. Annia Vigos testified that, in Miami,
the August layoff hit the warehouse, and the October layoff was
of office employees. (11:1748.)
Of the 25 Miami employees Bassett laid off (or who left for
other reasons) in August 1994 (23:4072), 12 were named in a
unfair labor practice charge (RX 49) filed by the Union. NLRB
Region 12 dismissed that charge. (24:4107.) The 12 are
among the 13 named in complaint paragraph 17 as having been
laid off August 10 [the effective date was August 11—GCXs
11, 13, 25] in violation of Section 8(a)(5.) Bassett testified that
the August layoff was part of his cost reduction plan.
(24:4154.)
As I mentioned earlier, Bassett acknowledges that, at the
same time Bassett was implementing the general and merit pay
raises of July-September 1994, both Woods and Bassett were
concerned about the labor costs at Miami. (22:3922, 3938.)
For the General Counsel, this is an apparent contradiction of
purposes—a need and program to reduce costs and personnel
and increase productivity on one hand, while on the other hand
granting a general pay increase and playing catch-up on per-
formance reviews and, as indicated by the reviews, awarding
merit pay increases. That apparent contradiction, combined
with the timing of the double-barreled pay raises (given at a
time when objections to the election could be, and were, filed),
and the unprecedented nature of the general pay increase (never
before had Bassett granted a general pay increase to all em-
ployees), expose the hidden reason for the dual pay raises—the
unlawful motive of granting the pay benefits in order to unlaw-
fully influence the bargaining unit in the event a second elec-
tion were directed. (22:3928–3929; Brief at 126.)

Not so, says Bassett. There is no contradiction because he
had a three-pronged approach for reducing costs:(1) improve
productivity, (2) reduce costs, and (3) increase pay. (23:4070.)
Bassett did not reverse the pay raise decision when Woods
directed Bassett to submit a cost reduction plan because Bassett
saw no need to do so. Proceeding with the pay raises was not
inconsistent with the other two prongs because, Bassett testified
(23:4071), Miami successfully improved productivity through
reengineering efforts (changing the conveyor system in the
warehouse, and repositioning work stations to increase effi-
ciency.) Contrary to PDI’s assertion (Brief at 79), Bassett did
not testify he approved the general and merit wage increase
plan, in the face of a cost reduction plan, so that the pay raises
would assure employees they were being paid adequately. In
other words, Bassett assertedly installed a “lean and nice” pro-
gram. The “lean” part was the increase of productivity through
layoffs (under PDI’s productivity formula, total sales divided
by fewer workers means higher productivity) and greater effi-
ciency (the reengineering), while the “nice” part consisted of
rewarding the fewer remaining workers, the “chosen,” with
higher pay to reassure them and keep their morale high. While
that purpose perhaps could be inferred from the circumstances,
so also may an unlawful motive be inferred—a desire to en-
courage employees to abandon their support of the Union dur-
ing the objections period.
At this point it may be helpful to review the text (GCX 158)
of Bassett’s remarks to the employees when, at meetings on
July 20 (23:4088), he informed them of the three-part wage and
productivity improvement program. (23:4084–4086.) One
caveat applies. Because of colloquy at trial, Bassett, who had
testified that his delivery did not follow the same method that
he had used for his speeches (23:4086), was never pressed to
answer the follow-up question (23:4086) of how the methods
differed. However, enough clues exist to make a finding,
which I do, that his July 20 presentation was far more informal.
Thus, when Bassett asserts that GCX 158 (a two-page English
text, plus a cover page with date, plus Spanish version, plus
attendee schedules) is the “displays and subject matter that I
discussed” (23:4084), I take that to mean he did not take pains
to see that his delivery was word for word, with no deviation;
that his presentation was more informal, allowing for some
discussion.
And indeed Bassett’s presentation was more informal. Thus,
Jose Castro credibly describes how Bassett thanked God that
everything had passed, that everything was “relaxed and calm,”
and he was going to remain with those employees he consid-
ered were the ones he could trust, like the “chosen” ones.
(11:1803.) I also credit Annia Vigos who reports that Bassett
told her group of 20 (11:1743) to 24 (as scheduled, GCX 158 at
9) employees that the employees would have a lot of benefits
“after the Union left,” that there would be raises for everyone,
plus evaluations, with raises according to the evaluations.
(111743–1744.)
About the date Bassett addressed employees on July 20, he
apparently posted a memo advising employees of the general
25 cent wage increase. Jean Claude Demosthene describes
such a memo as having been posted before the meeting at
which Bassett announced the raise. (4:574–575.) Jose Castro,

PARTS DEPOT, INC. 703
on the other hand, asserts that the memo he saw was posted
after the meeting. (11:1802.) I credit both. Contrary, I find, to
the suggestion by Bassett (22:3832), for Castro the postelection
general wage increase was the first raise of any kind he had
received since starting work at PDI in December 1991.
(11:1776, 1805; 12:1857–1858.)
Turn now to the exhibit (GCX 158.) The text consists of two
separate one-page memos. Actually, although both memos end
with “Sincerely, Peter Bassett,” only the first one has a saluta-
tion, “To All South Florida Employees.” (GCX 158 at 2.)
Even though I need not make a finding, there is a sufficient
basis for inferring that it is this memo which was posted. Be-
sides announcing the 25-cent general wage increase and per-
formance evaluations with earned merit wage increases “based
on your individual performances,” the memo covers items such
as training, communications, small group meetings, perform-
ance standards and “improved productivity,” awards, and solic-
its employee suggestions.
The second page of text, bearing the heading “Three Part
Wage and Productivity Improvement Program,” has in intro-
ductory portion, followed by a second headline concerning the
“Wage Improvement Program.” The first item under that is the
general increase of 25 cents (announcing that it would be re-
flected in the first August paycheck), followed by a paragraph
under the heading, “Performance Evaluation and Merit Increase
Program.” The final heading is for the “Productivity Improve-
ment Program”—or PIP. As stated at trial, receipt of this ex-
hibit was for the purpose of adding clarity of articulation to the
evidence about the relationship of productivity and the wage
increase. (23:4088-4090.) With that in mind, it may help to
quote some of the statements. The introductory portion reads
(GCX 158 at 3):

We are pleased to announce this three part wage and
productivity improvement program for all South Florida
Parts Depot warehouse, driver, customer service and office
employees.
Goals for this program are to provide an immediate
general wage increase for all employees, immediately fol-
lowed by a performance evaluation and merit increase
program based on individual performance. Concurrent
with the wage improvement program, we will be imple-
menting several productivity improvement programs de-
signed to lower our cost base and to insure all employees
have an opportunity for continue improvement. We will
be asking for your assistance and participation in improv-
ing efficiency. Your cooperation and participation will
help PDI become a more efficient warehouse operation in
order to justify the wage increases and to provide a work
place more efficient for future and continue improve-
ments.

Under the heading for “Performance Evaluation and Merit
Increase Program,” the memo provides:

Effective immediately, your supervisor and manager
will begin conducting a performance evaluation for all
employees on the payroll for one year or more and who
have not had a merit increase in the last 12 months. The
evaluation is expected to be completed within the next
three weeks. Employees who have had a merit increase
during the last 12 months or were not on the payroll for
one year will be evaluated again on the anniversary of the
last merit increase or their one year employment anniver-
sary. Merit wage increases will be awarded in addition to
the 25 cent general increase depending on your individual
work performance.

The final paragraph, under the PIP headline, reads:

The economic conditions that prevented wage in-
creases in the South Florida automotive aftermarket have
not improved over the last three years. We must pull to-
gether as a working team to improve our efficiency and to
provide a secure future for all of our employees. You will
see a lot of activity over the next several weeks to improve
productivity. We are asking your cooperation, participa-
tion and suggestions as we move forward together in a to-
tal PDI Improvement Program.

One last bit of background evidence should be addressed.
The Government introduced a summary (GCX 151) which the
General Counsel compiled from subpenaed payroll records.
(18:3020, 3030.) Although PDI agreed that the underlying
documents are authentic (18:3022; 20:3477), it objected
(18:3022, 3027; 20:3477) to receipt on the basis that, with only
45 names and 40 explanatory footnotes, the exhibit is both in-
complete and unreliable and, in any event, the document has no
relevance. At trial the General Counsel and the Union coun-
tered the objections by arguing that the exhibit, as a representa-
tive illustration of the payroll records, is sufficiently complete
and, in that respect, reliable. As to gaps suggested by the many
footnotes, the footnotes merely highlight the discrepancies, or
pattern of such, reflected in the payroll documents themselves.
(18:3021, 3027–3028.) The Union argued that the big gap
shown is the absence of an entry on the records explaining the
basis for a pay increase in late July 1994. (18:3028.) In receiv-
ing the exhibit, I advised the parties that the weight I assigned
to it could be little. (18:3025; 20:3478.)
On brief the General Counsel apparently argues that the
summary shows that some employees went for years without
receiving a pay raise. Assuming, without finding, that such is
so, it skips a very important step. Before a merit pay increase
[presumably the General Counsel is referring to merit raises]
can be granted under PDI written policy in the employee hand-
book (RX 40 at 15), there must be a performance evaluation.
Under the written policy of merit raises for “truly superior”
performance, merit raises are far from automatic. As the Gov-
ernment’s summary exhibit considers only pay raises, it fails to
account for the critical component of performance evaluations.
Thus, the absence of a pay raise could well be because the em-
ployee received a performance evaluation in which the supervi-
sor did not recommend a pay increase. That is a fatal flaw in
the summary’s relevance.
The Union’s trial argument (the Union did not brief the wage
increase allegation), that no entries appear for the July 1994
general wage increase is answered by Bassett’s testimony that
there was no need to prepare personnel action request forms, or
PARs (22:3856; 23:4058), for everyone because his letter (not
in evidence) so directing for everyone was sufficient. The

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 704
change was universal, not “transactional.” (23:4063–4064,
4079-4080.) In any event, as GCX 151 was received before
Bassett took the stand and admitted that a general pay increase
was granted in July 1994, the Union, by not briefing the matter,
apparently understands the matter to be moot. So finding, I
attach no weight to GCX 151.
3. Wage increases granted in July–September 1994
a. Contentions
Complaint 14 alleges that, about mid July 1994, PDI
“granted wage increases to its employees in order to discourage
them from joining, supporting, or assisting the Union.” PDI
denies.
Arguing unlawfulness, the General Counsel points to several
factors. First, Bassett admits that his decision to grant a general
pay increase, and his decision to conduct individual perform-
ance evaluations and to grant whatever merit increases were in
order, both came shortly after the Union filed its May 13, 1994
election petition. That is, the decisions were made during the
critical preelection period, notwithstanding that their implemen-
tation was delayed, on advice of counsel, after the election.
Second, the implementation of these dual raises (one general,
one a potential merit increase depending on the results of each
individual’s performance evaluation) suffer the triple voodoo of
(1) the malodorous timing of coming while the outcome of the
election was, and still is, unresolved; (2) raising the cost of
individual labor in the very midst of a cost reduction program
(the plan, as Bassett knew, would entail layoffs), which was
mandated by Bassett’s superior, Al Woods, PDI’s president;
and (3) departing from Bassett’s own past practice of ignoring
PDI’s corporate policy (the latter calls for annual performance
evaluations with merit pay increases, as indicated) and delaying
such reviews, and merit raises, for months, even years, and
switching to conformance with that corporate policy when it
was convenient to use it as a pretext for persuading employees
they did not need the Union should a second election be di-
rected, and to undercut the Union’s bargaining strength should
the Union ultimately be the winner or PDI otherwise be ordered
to recognize and bargain with the Union.
Citing LRM Packaging, 308 NLRB 829 (1992), PDI argues
that an employer may lawfully give wage increases after a un-
ion election. Moreover, relying on Springfield Jewish Nursing
Home, 292 NLRB 1266 (1989), PDI argues that an employer
may grant a pay raise even during the critical preelection period
where it does so for the purpose of remaining competitive. On
this point, PDI cites Bassett’s testimony (21:3819) that the
raises were needed to stanch the 60 percent turnover hemor-
rhage. As to granting the pay raises during the cost reduction
program, PDI points to Bassett’s explanation (23:4071) that the
pay raises were not inconsistent with the program because pro-
ductivity would be, and was, increased by layoffs (25 in Au-
gust) and improved efficiency through reengineering.
b. Discussion
But those steps—laying off 25 employees and reengineering
for more efficiency—did not require that the dual pay increase
be granted. Although PDI (Brief at 79) ascribes the additional
ground of incentive for those employees who would remain [to
“assure the employees were being paid adequately,” and “PDI
was going to demand that is employees work harder”; Brief at
79], Bassett never voices that reason either at trial or in the
prepared text (GCX 158) for his July 20 announcement. Of
course, that reason perhaps can be inferred from the circum-
stances, but failure to list it must be weighed in the process of
resolving credibility.
Now reaching that point of resolving credibility, I do not be-
lieve Bassett. Bassett, I find, was strongly motivated to grant
the general pay increase of July 20, and to begin performance
evaluations for everyone, with merit pay raises as indicated, for
the purpose of undermining the Union’s support should (1) the
Union win the election and bargaining ensue, or (2) a second
election be directed. Even assuming the August layoffs were
not unlawfully motivated (NLRB Region 12 dismissed that
charge), pay raises were not required. And even if they did
make good business sense when Bassett finally got around to
preparing a cost reduction plan, it was his mid-May eagerness
to grant pay raises immediately which gives him away. That
eagerness, prompted, I find, by the Union’s election petition,
was restrained only by his attorney’s advice to hold off until
after the election.
Before the Union filed its election petition, where was Bas-
sett’s concern over the unlucky employees whose performance
evaluations (with their potential for merit pay increases) he, by
his own admission (21:3818), had delayed for “several
months”?
Before the Union filed its election petition, where was Bas-
sett’s concern over stanching the turnover hemorrhage?
The answer to both questions, of course, is that there was no
concern. Not until the Union petitioned for an election did
Bassett acquire concern—an immediate concern. Contrary to
Bassett’s expressions, however, I find that the motivation for
his concern was not the simple business desires of getting right
with corporate policy and reducing employee turnover (even
though those desires no doubt became reasons), but a strong
urge to undermine the Union’s support. Indeed, admitting
(21:3816, 3818; 22:3936) that both his discussion (with Human
Resource Director Tennant) and his decision to implement the
dual pay raise plan (one general, the second merit as indicated
by performance evaluations) came during that first week after
the Union’s election petition was filed, Bassett would have
implemented his twofold decision (as soon as a wage survey
could be done) immediately but for counsel’s advice (21:3820)
to wait until after the election (although the wage survey would,
and did, proceed.)
I find that LRM Packaging, supra at 829 relied on by PDI,
controls here, but that it compels a result supporting the Gov-
ernment. There, 308 NLRB at 829, the Board, agreeing with
Judge D. Barry Morris, found that the granting of a wage in-
crease, when the union’s objections to the election were pend-
ing, was lawful. This ruling was based on two findings. First,
the pay raise was consistent with past practice. Second, Judge
Morris found no unlawful motive. As to the latter, and quoting
Board law, the judge wrote (308 NLRB at 834):

The test is whether, based on the circumstances of
each case, the granting of increased wages and benefits is

PARTS DEPOT, INC. 705
calculated to impinge upon the employees’ freedom of
choice in an upcoming scheduled election or an election
which might be directed in the future.

Applying LRM Packaging here, I find that PDI, through Di-
vision President Peter Bassett, failed to satisfy either ground.
As to past practice, the Government proved (largely by Bas-
sett’s own admissions) that the pay raises, both decisions and
implementations, were inconsistent with past practice. (Past
practice had been to disregard corporate policy.) Respecting
the second ground, the General Counsel proved that Bassett’s
motive, unlike the motive of the owner in LRM Packaging, was
calculated to influence the employees’ freedom of choice — so
as to favor PDI and to undermine the Union’s support.
Similarly, in Springfield Jewish Nursing Home, 292 NLRB
1266 (1989), the other case relied on by PDI, past practice fa-
vored the employer (who conducted and acted on periodic wage
surveys), and the Board found that the motive for individual
pay adjustments for certain nurses (nonbargaining unit employ-
ees), granted during an organizing campaign of unit employees,
was for the legitimate purpose of retaining the nurses. The
mirror image of Springfield matches the legal principles out-
lined in LRM Packaging.
Accordingly, the decision for and the implementation of the
wage increases here (the 25-cent general wage increase and the
performance evaluations, with merit increases as indicated)
were unlawfully motivated. The unlawful motivation, a plan to
influence the employees’ freedom of choice, is shown by the
fact that the raises were:(1) inconsistent with past practice; (2)
improperly timed because based on discussions and decisions
held and made immediately after the Union filed its petition for
an election. Respecting the latter point, and, contrary to the
testimony of Division President Bassett, whom I disbelieve on
this allegation, I find that the raises were granted for the pur-
pose and goal of undermining the Union. The undermining
goal was to persuade employees that they did not need a union
should a second election be directed, and, should the Union win
and bargaining ensue, to severely weaken the Union’s strength
at the bargaining table by reducing employee support.
For these reasons, and on the entire record, I find, as alleged
by complaint paragraph 14, that PDI violated Section 8(a)(3)
and (1) of the Act by the wage increases which it granted dur-
ing July-September 1994. 10
4. Vivian Fortin
a. Introduction
PDI’s discrimination against Vivian Fortin, the complaint al-
leges, began about June 2. “About June 2 and 24, 1994,” com-
plaint paragraph 13 alleges, PDI warned Fortin “and restricted
her movement in PDI’s Miami facility.” PDI admits warning
Fortin, but denies restricting her movements.
Complaint paragraph 15 alleges that, about August 1994,
PDI, through Office Manager Luisa Pacheco, issued Fortin “an
unfavorable employee evaluation.” PDI admits.

10 Although complaint 14 alleges July 1994, I granted the General
Counsel’s motion to conform respecting such matters as dates.
(17:2648.)
Finally, complaint paragraph 16 alleges that, about October
27, 1994, PDI, through Vice President Mark Noble, “laid off
employee Vivian Fortin.” PDI admits.
PDI denies the further allegation that it discriminated against
Fortin because of her Union activities.
b. Credibility resolved
Several witnesses testified concerning these Fortin allega-
tions. In addition to reasons either of timing, logic, departure
from past practice, or plausibility generally, I deem Fortin to
have testified with a more persuasive demeanor than the man-
agement witnesses opposing her. The disparity in demeanor
was particularly distinct as to Office Manager Pacheco, (for-
mer) Operations Director Jenkins, and Fleet Supervisor Wil-
liamson, but also included Peter Bassett. Although Bassett was
the most articulate of all the some 30 witnesses who testified,
the demeanor factor favors Fortin. The level of articulacy alone
does not control respecting demeanor.
Moreover, a greater number of witnesses on one side of an
issue is not controlling. It is the weight of the credible evi-
dence, not the numerical superiority of witnesses, which is
controlling. Sahara Coal Co. v. Fitts, 39 F.3d 781, 782–783
(7th Cir. 1994); Riley-Beaird, 259 NLRB 1339, 1367 fn. 115
(1982.) The rationale of the two cited cases would also apply
to an argument that witness “A” should be disbelieved when he
or she is opposed by different (but single) witnesses on separate
incidents.
In resolving credibility in favor of Vivian Fortin, who testi-
fied with apparent sincerity, against her opposing witnesses,
including the articulate Peter Bassett, I am reminded of the
description of demeanor which Justice Henry Lamm delivered
nearly 90 years ago. Writing for the Missouri Supreme Court,
Justice Lamm rendered a description of unequaled perception
and eloquence: 11

We well know there are things of pith that cannot be
preserved in or shown by the written page of a bill of ex-
ceptions. Truth does not always stalk boldly forth naked,
but modest withal, in a printed abstract in a court of last
resort. She oft hides in nooks and crannies visible only to
the mind’s eye of the judge who tries the case. To him
appears the furtive glance, the blush of conscious shame,
the hesitation, the sincere or the flippant or sneering tone,
the beat, the calmness, the yawn, the sigh, the candor or
lack of it, the scant or full realization of the solemnity of
an oath, the carriage and mien. The brazen face of the liar,
the glibness of the schooled witness in reciting a lesson, or
the itching overeagerness of the swift witness, as well as
honest face of the truthful one, are alone seen by him. In
short, one witness may give testimony that reads in print,
here, as if falling from the lips of an angel of light, and yet
not a soul who heard it, nisi, believed a word of it; and an-
other witness may testify so that it reads brokenly and ob-
scurely in print, and yet there was that about the witness
that carried conviction of truth to every soul who heard
him testify.
11 Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118, 1120–1121
(1908.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 706

c. Material events before June 1, 1994
(1) Fortin’s productivity
Hired by PDI in 1986, Fortin worked at several jobs in cus-
tomer service, including telephone room order taker, parts
counter, inventory, warehouse work, catalog room, building
engine kits, and parts look-ups, all before March 1994. (2:218–
221, Pacheco; 8:1315–1316, Fortin.) In 1993 and early 1994,
Fortin worked in the telephone room taking orders and looking
up parts until 11 a.m., at which point she did catalog work.
Catalog work includes going to the warehouse to place catalogs
in the bins of customers. (8:1316–1317; 9:1485–1487.) Con-
trary to the suggestion of Jack Jenkins (18:2996), the terms of
“order taker” and “customer service,” as Fortin explains, are
not synonymous, for an order taker simply takes orders,
whereas someone working as customer service “looks up parts,
locates and matches parts.” (9:1485.) Only Fortin and two
other employees in the phone room did look-ups. (9:1485.)
Bassett acknowledges that Fortin had a reputation for being
very good at look-ups, with customers calling for her by name.
“She’s very skilled.” (20:3538; 22:3906.) [He is equally com-
plimentary about her cheerful willingness to do whatever assist-
ing work needed to be done. (20:3562; 23:3994.)]
Jenkins became Fortin’s second level supervisor when he
was promoted from Credit Manager to Operations Director in
January 1994. (18:2841, 2988.) Jenkins remembers Fortin as
being, as of May 1994, a “valued” employee. (18:2988.) Al-
though Jenkins initially balked, during the Union’s cross ex-
amination, at describing Fortin as an “exemplary” employee as
of May (18:2988), when confronted with his pretrial affidavit,
Jenkins conceded that he had so told the Board agent, testifying
at trial that such a description was merely his “personal opin-
ion.” (18:2991.) When asked, regarding the period of January
1994 through May 1994, whether he knew of any problems
concerning either the attitude, quality, or quantity of Fortin’s
work, Jenkins answered, “No, sir.” (18:2990.)
But according to Pacheco in her initial testimony as a wit-
ness called under FRE 611(c), at some point before Fortin’s
August 1994 performance evaluation, Pacheco did alert Jenkins
to a problem she was having with Fortin. Jenkins did not sug-
gest a warning, and Pacheco did not think of that either. In-
deed, according to Pacheco, Jenkins told Pacheco to talk to
Fortin again. Pacheco failed to do so because “I didn’t think of
it.” (2:183, 227, 231–232.) Fortin’s (supposed) problem was
low productivity which, in Pacheco’s view, was caused by
Fortin’s leaving her desk too often. Pacheco first noticed the
problem about November 1993, and she spoke with Fortin
about it then. Twice thereafter, running into about January
1994, Pacheco again spoke with Fortin. Although Fortin’s
productivity stabilized at a very low level, it never improved.
On each of these three occasions, Pacheco told Fortin that she
needed to be at her desk, and she asked if Fortin needed any
help from her. Fortin would say that she had gone to the ware-
house for parts. Pacheco told her to call the warehouse man-
ager and get someone to bring her the parts, for Pacheco needed
Fortin at her desk answering the telephone. (2:196, 201, 203,
225, 250, 299–306, 313–315.)
Pacheco did not document any of this for Fortin’s personnel
file because, she testified, she did not place Fortin on probation.
(2:236–237.) Pacheco asserts that, as a matter of routine, she
discarded the production records within a month following the
August 1994 evaluations, or about September 1994. (2:187–
190, 311–312.) Fortin denies being told before her August
1994 performance evaluation that her productivity was low, and
she denies having any conversations with Pacheco in which
Pacheco told her that the number of her telephone calls was low
and that Fortin should not be going to the warehouse. (8:1315,
1371–1372.) Postponing, for the moment, any discussion of
events beginning June 1, it is clear, and I find, that there were
no such conversations before June 1. Certainly Jenkins would
not have told Pacheco after June 1 (in light of the warnings he
issued her, as will be discussed) to simply talk with Fortin
again. And it is not plausible that both Bassett and Jenkins held
Fortin in high regard as of May 1994 if in the previous months
Pacheco had been holding counseling sessions with Fortin, with
Fortin’s productivity supposedly at a very low level.
Pacheco’s whole story about Fortin’s low productivity, and
their supposed conversations on three occasions, is inconsistent
with everything, even the testimony of Jenkins and Bassett.
Indeed, Bassett freely acknowledges that, almost immediately
after Fortin took over the Metro Dade account about March,
sales increased substantially. (20:3566; 23:4004.) Crediting
Fortin, and disbelieving both Pacheco and Jenkins that they had
spoken to her about her productivity, I find that nothing was
said. I further find that nothing was said because, contrary to
the testimony of Pacheco, in particular, Fortin’s productivity
had not dropped at any time before June 1. Indeed, crediting
Fortin, I find that, by early May 1994, both Pacheco and Jen-
kins, and salesman Ortega as well, had told Fortin that she was
doing a good job. (9:1487–1488.)
(2) Bassett reestablishes the Metro Dade account
A description of the Metro Dade account (MDA or Metro
Dade) is an important part of the background. MDA consists of
about two dozen governmental customers in the metropolitan
Dade County area. The business is selling automotive parts to
these governmental units for their some 17 garages that service
the various motor vehicles such as police cars, fire trucks,
buses, maintenance trucks, and the like. (2:155–156, 224;
8:1319, 1328; 20:3532.)
Before 1992, a competitor of PDI apparently held the Metro
Dade account. Sometime in 1992 Bassett decided to try and
capture MDA. Based on a suggestion from Robert Ortega, his
outside salesman who had been calling on the units, Bassett
hired Sherilynn (Bassett could not recall her last name) from a
competitor in late 1992 and created, for her, a separate and
exclusive (not integrated into the normal customer service func-
tion) customer service position handling only MDA.
Because Sherilynn had been calling on the accounts much as
an outside salesperson, Bassett had her continue that practice in
order to capitalize on her personal contact with the customers.
During Sherilynn’s tenure at PDI, monthly sales to MDA
reached the $55,000 level. After a year of so, Sherilynn de-
parted Parts Depot, Inc. (20:3533–3535.)

PARTS DEPOT, INC. 707
Instead of assigning, or hiring a successor to Sherilynn, and
continuing with the position as created in late 1992, Bassett
tried to go the cheaper route and reduce costs. He therefore
assigned MDA to Pacheco’s regular customer service telephone
room. (20:3535–3536.) Although Bassett testified that Vir-
ginia Randle is the person there who wound up handling MDA,
along with her other customer service calls (20:3535), Pacheco
disputes that, and asserts that it was Charlene (last name not
recalled) who did the work, apparently for not more than a
short time (2:219–220, 257.)
Regardless of whoever the second person was, the cheaper
way “didn’t work” and Bassett got “burned.” (20:3536.) MDA
required “specialized services” and “more services” than the
cheaper way provided. (20:3536.) Although the monthly fig-
ure is not given for what level sales dropped to, it is clear that
the figure had fallen so low from all the complaints about the
lack of service that, about February or March 1994, Bassett
decided he would have to reestablish Sherilynn’s old position.
Without considering any other employee, and choosing Fortin
because of her excellent customer service skills, Bassett offered
the job to Fortin, who accepted. (8:1317, Fortin; 20:3536-3538,
3565; 22:3906, Bassett.) As Fortin credibly describes, both
Office Manager Pacheco and then Operations Director Jenkins
(Fortin’s second level supervisor, and the person to whom
Pacheco reported) expressed their confidence that Fortin could
do the work. Jenkins said he wanted Fortin to bring up the
sales on the Metro Dade account. (8:1317–1318.)
Bassett testified that he modified the reestablished position
in two respects. First, Fortin would not make outside sales calls
to the customers. There was no need to do so, Bassett testified,
because Fortin, unlike Sherilynn, had not been calling on the
customers, and Robert Ortega had developed a good rapport
with MDA. (20:3539.) Second, in addition to her MDA work,
Fortin, from the office she would share with Eddie Leeds, also
would handle some look-ups for other customers in addition to
her MDA work. (20:3540, 3564; 22:3908.) She would help
Leeds, but Leeds would not help her because of the exclusivity
accorded MDA. (22:3907.)
The exclusivity aspect describes part of the effort Bassett
made to recapture the Metro Dade market. Thus, he designated
a specific person (Fortin) to be PDI’s exclusive customer ser-
vice representative for MDA. (20:3538; 22:3914.) And in
order to match the service offered by a competitor, Bassett
installed a separate telephone number for MDA to call for
reaching Fortin. (20:3540; 22:3907–3908; 23:4003–4005.)
Fortin also had a voice mail associated with the special tele-
phone number. (2:203; 8:1330; 19:3267; 22:3908.) Finally, a
special express van was designated for exclusive delivery of
parts to the Metro Dade garages. (22:3914–3915.) As he testi-
fied, Bassett considered the Metro Dade account an important
account. (22:3910.) To emphasize this, Bassett told Fortin that
he wanted her to provide a “high quality” level of service for
MDA. (23:3998–3999.)
As already noted, by early May both Pacheco and Jenkins,
plus salesman Ortega, had told Fortin that she was doing a good
job on MDA. And the sales figures support Fortin’s testimony.
Thus, sales jumped almost immediately under Fortin.
(20:3566; 23:4004, Bassett.) For May (at PDI, the sales month
ends about the 25th, 20:3566-3577), sales had reached about
$33,000. (22:3919.) The same figure was reached for the
month ending June 25. (20:3566–3577.) While sales under
Fortin never reached the great figure of the $50,000 a month
range achieved under Sherilynn, Bassett was pleased with
Fortin’s figures of close to $35,000. (20:3566.)
d. Employer knowledge
Fortin signed her union card (GCX 12-20) on May 10, 1994
at her desk. (8:1330, 1372, 1374; 9:1388, 1511.) Although
Fortin distributed cards to several employees during the days
that followed, there is no evidence that management was aware
of her activity, or that she had signed a card. Indeed, neither
her name nor her signature appears on the mid-May letter
(GCX 2) from some of the principal supporters to Bassett, in
which letter they reminded Bassett of their right to organize.
Thus, as I summarized earlier, when Bassett interrogated Fortin
in his office on May 12 about any union rumors she had heard,
and what he could do to stop the Union, Bassett was unaware of
Fortin’s activities on behalf of the Union. Bassett had called
Fortin into his office not only because he knew her and con-
versed well with her (22:3878; 23:4015–4016), but because he
“trusted” her (20:3524.)
In preparation for the NLRB hearing scheduled for Wednes-
day, June 1, the Union subpenaed, among others, Vivian Fortin.
Fortin’s subpena (GCX 21) reflects on its face that it was issued
at the request of the Union’s regional counsel. On May 31
Fortin presented the subpena to Operations Director Jenkins.
(8:1323–1334.) Bassett acknowledges that Jenkins, before the
scheduled hearing, told him about Fortin’s subpena. (23:3955.)
Although Fortin was not required to obtain permission to honor
her subpena, she exercised courtesy and prudence in notifying
her employer the day before she was to attend. See Yenkin-
Majestic Paint Corp., 321 NLRB 387 and 387 fn. 3 (1996.)
Pursuant to the subpena, Fortin appeared at the June 1
scheduled hearing. There was no testimony, however, because
an election agreement was reached. (GCX 17.) On June 1,
following the agreement for an election, Fortin was interviewed
by Ted Reed of the Miami Herald. (8:1335.) Fortin recalls that
Reed’s article (GCX 22), in which she is the only employee
quoted by name (as saying that the workers “want to better
ourselves”), appeared within a day or two. (8:1336.) Although
Bassett does not recall when the article appeared, he concedes
that he read it the day it was published. (23:3954, 4034–4035.)
As the article, as Fortin testified, appeared within a day or two,
and as the article itself refers to “Wednesday,” as does a nearby
article about “Dow moves slightly forward,” I find that the
article appeared in the Thursday, June 2, 1994, edition of the
Miami Herald.
PDI argues (Brief at 60) that the mere fact the Union sub-
penaed Fortin to testify at the scheduled representation hearing
does not show knowledge by PDI that Fortin supported the
Union. Although the Union’s subpena to Fortin does not prove
conclusively that Fortin was a supporter of the Union, common
experience demonstrates that a rebuttable presumption arises
that Fortin was given a subpena because she already had been
cooperating with the Union. In the instant case, PDI made no
effort to rebut this presumption. Accordingly, I find that, as of

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 708
Tuesday, May 31, 1994, PDI, including Division President
Peter Bassett, knew, or at least strongly suspected, that Vivian
Fortin supported the Union.
e. The June 1994 warnings
(1) June 1, 1994—subpenaed attendance
Before June 1994, Fortin had never received as much as an
oral warning. (8:1359.) Indeed, Office Manager Pacheco testi-
fied that she has never issued a warning, oral or written, and
that she has relied on oral counselings which were not warn-
ings. (2:180, 298.) Fortin’s unblemished record, and her good
relations with management, abruptly changed on June 1. On
that day Operations Manager Jenkins gave Fortin a “verbal
warning,” which he documented by memo of June 1 to Fortin’s
personnel file. Although the complaint does not attack this
warning, PDI offered the file memo, and it was received over
objection, for the limited purpose of showing PDI’s motive as
to subsequent events which are alleged as unlawful. (18:2902–
2906.) The text of Jenkins’ documented verbal warning to
Fortin reads (RX 38):

On this date Vivian had, as other PDI employees did, a
subpoena requiring her appearance at a court hearing. The
hearing was at 1:00 p.m. and the hearing was consequently
canceled. Vivian however felt compelled to attend and in
that her involvement would take no more than a few min-
utes as we [were] led to believe we did not object to her at-
tendance.
Vivian punched out at 12:00 noon and returned at 3:50
p.m. She was absent for a half day with no coverage
available for her position. She is the Metro Dade clerk
and specific duties are required for order completion. She
was truly missed and without a phone call we had no idea
of her return time.
I counseled with Vivian regarding the matter and her
response was that she was delayed due to the fact that she
drove there with other PDI employees and that she was
dependent on them for a ride back to work. She stated that
they met with reporters and then went to a late lunch. She
continued to state that she was sorry for the delay and that
this would not happen again. Vivian understands after this
session the reason for my concern and that this is to be
considered a verbal warning. If matters of this nature oc-
cur again stricter actions will result which will include
written warnings and possible disciplinary actions.

Nothing in the memo, or the record, justifies a warning to
Fortin over any alleged delay in returning from the scheduled
hearing. There is no evidence supporting the memo’s statement
that Fortin felt “compelled” to attend and that her involvement
would take no more than “a few minutes as we [were] led to
believe” First, the memo (RX 38) was not received for the
truth of the matter. Second, it would not be admissible (for the
truth) as an exception to the hearsay rule for business records
because, even if memos to personnel files in ordinary business
times may satisfy the standard, the “circumstances of prepara-
tion” of this memo indicate a “lack of trustworthiness.” FRE
803(6.) In the words of a quotation in the Advisory Commit-
tee’s Note to Exception (6), Jenkins’ statement is “dripping
with motivations to misrepresent.” (Federal Rules of Evidence,
1996–1997 Edition, 137 at 139, West Pub. Co., 1996.) And see
Pierce v. Atchison Topeka and Santa Fe Ry. Co., 110 F.3d 431,
443–444 (7th Cir. 1997) (not error under FRE 803(6) for trial
judge to exclude memo to employee’s personnel file from Santa
Fe official in age discrimination case.)
For example, it was Jenkins who acknowledged to Fortin
that the subpena meant she had to attend. (8:1334, Fortin.) Nor
is there anything in Fortin’s description (the only record evi-
dence on the matter) of their May 31 conversation to support
the memo’s assertion her attendance would be for no more than
“a few minutes.” No reasonable person in America would con-
clude that anything associated with attending a court or legal
proceeding as a witness could be completed in just “a few min-
utes.” Apparently, as the last clause of the first paragraph sug-
gests, had Jenkins known that Fortin’s absence would have
been for more than a few minutes, he would have objected to
her attendance. That alone shows his unlawful motivation—
Fortin could exercise her statutory rights only so long as it re-
quired an absence of no more than “a few minutes.” That is
ridiculous. As Jenkins would have done had Fortin been absent
for several days with the flu, or an even more serious medical
condition, he would have made other arrangements for some-
one to handle her work (just as was done after she was termi-
nated.)
The memo’s final paragraph shows Fortin’s response. On
this, Jenkins testified that such was the response she gave.
(18:2906.) His testimony is independent evidence of her re-
sponse. Thus, Jenkins admits that Fortin told him on her return
that (1) she was dependent on the other employees for transpor-
tation; (2) they met with reporters [as there is nothing about the
time, it appears, and I find, that it was the fact of meeting with
reporters on behalf of the Union, not the time spent, to which
Jenkins objected]; and (3) took a late lunch [when a reasonable
lunch period is subtracted, it is seen that the total time Fortin
was absent from work was barely 3 hours – a clearly reasonable
time under the statute and the circumstances].

As Jenkins continues in his memo, after expressing his “con-
cern” to Fortin, a concern I find to have been a total fabrication,
he does not stop at just issuing a “verbal” warning. Instead, I
find, he again shows his true motivation of laying a paper foun-
dation for getting rid of Fortin as soon as possible. This he
does by threatening even stricter sanctions including “written
warnings and possible disciplinary actions.” Thus, this was not
a friendly counseling for someone whom Jenkins, during May
(that is, just one day earlier), considered not only a “valued”
employee (18:2988), but an “exemplary” one (18:2990–2991.)
Unlike the hypocrisy displayed by Jenkins, the sincerity of
Fortin appears in her expressions of regret, born, I find, from
fear for her job and engendered by the heavy-handed threats by
Operations Director Jenkins.
Finally, there is the demeanor factor. Jenkins’ demeanor was
very unfavorable. He testified as a person who views the Un-
ion and its supporters as enemies to be eliminated. Jenkins’
June 1 memo indeed reveals his motive, but a far different mo-
tive from that for which PDI offered the memo. I find that it
shows that Jenkins was driven by the unlawful motivation to
seize on Fortin’s short and protected absence to begin the paper

PARTS DEPOT, INC. 709
foundation for eliminating her from PDI’s payroll because of
her status, in his view, as a union enemy. Had the Union not
been on the scene, and Fortin simply asked for some time off to
handle personal business, Jenkins, I find, would not have given
her absence a second thought.
(2) June 2, 1997—the loading dock incident
The day following Fortin’s appearance for the scheduled
June 1 hearing on the Union’s election petition, and the day
following Fortin’s first-ever warning of any kind, Jenkins again
“verbally” warned Fortin. There is no documentation in evi-
dence for this incident, which is referred to as the “loading
dock” warning.
On this occasion, Fortin was returning to her office from de-
positing Metro Dade invoices in bags that are put on totes. The
parties stipulated that “totes” are containers in which parts are
placed. (21:3678.) Totes, which ride on routes on the ware-
house conveyor system, carry the parts to the parts counter or to
the trucks. (9:1504; 20:3506–3508; 22:3921.) As Fortin
started back, Fleet Supervisor Williamson emerged from the
stacks and his course brought him alongside Fortin. As they
proceeded, Fortin observed three warehouse employees, one of
whom was Joe Castro, grouped and talking, in Spanish, about
the Union. In Spanish, apparently, Fortin told the group that it
was not fair to discuss the Union on PDI’s time and that they
should return to work. Castro said he agreed, and the three
returned to their work. Williamson told Fortin, “Good. That
was good.” (8:1348, 1354–1356; 9:1499–1507.) Castro did
not address this incident when he later testified.
Williamson reports a strange twist to the incident. Accord-
ing to Williamson, Fortin came from the office to the loading
dock when he was “launching” (dispatching) the trucks, a very
busy time. Approaching Williamson, Fortin told him that Peter
Bassett had told her “to come out and talk to her people.”
Fortin did not explain. Instead of responding, Williamson went
to report the matter to Warehouse Manager Leo Belaunzaran.
As Williamson departed, he observed that Fortin was convers-
ing with Ronald Casco and Jose Castro. Before Fortin arrived,
Casco had been checking as Castro loaded the trucks. There
were two to three others there that Fortin spoke to, but Wil-
liamson is unable to recall their names. They were speaking in
Spanish. Williamson reported the matter to Belaunzaran who
replied that he would take care of it or look into it. When Wil-
liamson returned to the loading area, Fortin was no longer
there. The other employees had resumed working. Williamson
testified that Jenkins was not in the area when the incident oc-
curred. (20:3389–3395, 3447–3448.)
Williamson testified with an unpersuasive demeanor, and I
do not credit him. Moreover, Williamson’s story about Fortin’s
saying that Bassett told her to come talk to “her people” is bi-
zarre and not plausible. Bassett had learned on May 31 that
Fortin was going to be a witness for the Union. I have found
that, through such knowledge, Bassett also concluded, or
strongly suspected, that Fortin supported the Union. Thus, it
makes no sense at all that Bassett would have commissioned
Fortin to go into the warehouse to talk to “her people.” More-
over, I note that Bassett, when he later testified, never con-
firmed or denied this account of Williamson’s. The lack of
confirmation diminishes the overall credibility of Williamson’s
story. A denial would mean that Fortin would have lied to
Williamson about something the division president assertedly
had told her—a strange thing for a rank and file employee to
do. I do not believe Williamson.
Jenkins has a third version. According to Jenkins, on this
occasion, or some similar occasion, he observed Fortin, on the
shipping line (another name for the loading area), talking to
Jean Claude Demosthene and several other employees, with
Fleet Supervisor Williamson’s being a witness. Jenkins went
over and directed everyone to return to work. Although Jenkins
does not recall whether he spoke to any of the other employees,
he recalls that he spoke with Fortin about the matter. Initially
Jenkins was sure he wrote some warnings over this. (18:2866.)
Later, on cross examination, Jenkins could not recall having
issued any warnings. (18:2952.) Jenkins recalls that, at the
time he addressed the group, Fortin said she was sorry and
would return to work. He did not inquire as to who had initi-
ated the conversation. (18:2865–2866, 2948–2955, 2963.)
According to Jenkins, he reported the matter to Bassett, and
Bassett expressed irritation because, he said, he had just had a
“session” with Fortin a few days earlier. (18:2867, 2950,
2952–2955.) During his own testimony, Bassett does not men-
tion any “session” with Fortin in which he supposedly criticized
Fortin in some fashion. And as I have noted, Williamson de-
nies (20:3444) that Jenkins was in the area when he observed
Fortin speaking to employees, and he further recalls no similar
incident involving Fortin and Jenkins (20:3444–3445.)
As earlier noted, I find Jenkins to be a totally unreliable wit-
ness. I find that his version, to the extent it is based at all on an
actual event, is a garbled description of the incident which
Fortin describes.
Before resuming with the balance of Fortin’s account (the
part involving the warning and restriction), I should address
two points. PDI argues (Brief at 62–63) that I should draw an
adverse inference from Castro’s failure to confirm Fortin’s
account. I did not draw an adverse inference from Bassett’s
failure to support Jenkins’ account, but simply noted that such
absence affects the overall credibility of Jenkins’ version. That
is different from finding that Bassett, had he been asked, would
have denied the assertion. Bassett possibly would have testi-
fied that he could not remember. Nor do I infer that Warehouse
Manager Belaunzaran, had he addressed the matter, would have
denied that Williamson reported the Fortin matter to him and
that he said he would look into it. I weigh the absence of that
corroboration, however. Similarly, I decline to draw an adverse
inference from Castro’s failure to confirm. It could well be that
Castro, had he been asked, would have testified that he could
not recall. Nevertheless, I have weighed the absence of that
corroborating testimony in evaluating the overall credibility of
Fortin’s description of the incident. Even so, I have found
Fortin’s account credible.
A second point made by PDI (Brief at 61) is that, as the re-
cord reflects. Williamson speaks and understands very little
Spanish. That being so, it is not credible that Williamson
would have remarked to Fortin, “Good. That was good.”
PDI’s argument is misplaced. Whether Williamson understood
Fortin’s Spanish remarks to Castro and the others is immaterial.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 710
The material point is that she spoke to them and, with Castro
acknowledging, they returned to work. It was the fact that,
whatever she had said, Fortin had authoritatively accomplished
the group’s return to work that had impressed Fleet Supervisor
Williamson. That fact, I find, is what prompted Williamson’s
expression of approval—“Good. That was good.”
Turn now to the balance of Fortin’s account. About 15 min-
utes after the incident, Fortin was called to Jenkins’ office.
Present were Jenkins, Human Resource Director Robert
Tennant, and Fortin. Jenkins said he was giving Fortin a “ver-
bal” warning because she had been on the loading dock en-
gaged in idle conversation. Fortin replied that she merely had
told the men to quit talking and to resume working, and that if
he did not believe her he could ask Fleet Supervisor William-
son.
Without addressing Fortin’s statement or reference to Wil-
liamson, Jenkins told Fortin that, from that moment on, she was
not allowed to go to the warehouse, that she was to go no fur-
ther than the parts counter to take care of her Metro Dade ac-
counts. Moreover, she was not to talk with anyone unless it
was job related, nor was she to go anywhere besides her office,
the restroom, the parts counter, or the lunch room. Fortin told
Jenkins that his order would interfere with her job performance
because she had to go to the warehouse and pull a lot of parts
from the warehouse for her customers. Jenkins replied that if
she needed anything from the warehouse she was to call Hector
Ortiz or Angel Gonzalez. Fortin said okay. (8:1348–1357.)
As Fortin was leaving work that day, she saw Williamson
and asked him if he had talked to Jenkins. Williamson merely
replied, “Yeah, yeah, yeah, yeah, yeah.” Fortin said nothing.
(8:1357–1358.) Before June 1994, Fortin credibly testified, she
had never been restricted to certain areas or told she could not
talk (about non work matters) to other employees at PDI. Be-
fore June 1994, Fortin had never been told that, if she needed
something from the warehouse, she was to call a supervisor
there. A few days after this loading-dock incident, as Fortin
was returning to her office from the restroom, Jenkins literally
ran in from the warehouse and, almost out of breath and red in
the face, asked where she had been. “The ladies room,” she
replied. “Oh,” Jenkins said, and he walked off toward his of-
fice. (8:1358–1359.) If Jenkins documented his “verbal” warn-
ing to Fortin for the loading dock incident, no party introduced
a copy into the record.
Regarding this occasion (which he actually places on June 7
because of a reference to that date in the last warning to be
discussed), Jenkins claims that he personally came upon a
group of employees, including Fortin and Jean Claude
Demosthene, talking on the shipping line (the loading dock
area.) He told the employees to return to their work. Jenkins’
asserts that he reported the matter to Bassett, who expressed
irritation over the incident because Bassett had “just had a ses-
sion with” Fortin. [Bassett did not address this assertion when
he later testified.] Jenkins initially testified that he had written
some warnings for this incident, including one to Fortin.
(18:2865–2867.) On cross examination, Jenkins admits that he
does not recall whether he “wrote up” Fortin or anyone else
over the incident. (18:2950–2952.)
Also, on cross examination, Jenkins adds Williamson as a
witness. (18:2948.) Jenkins recalls that, at the incident, Fortin
said she was sorry and would return to work. (18:2952.) Of
the employee involved, Jerez recalls speaking, afterwards, only
with Fortin. (18:2849.) He does not recall her response.
(18:2867.) Jenkins does not recall that Fortin asked him to
speak with Williamson about the matter. (18:2955.) I do not
believe Jenkins in any respect.
According to both Jenkins (18:2843, 2847) and Bassett
(20:3541, 2545, 3551; 23:3978), the job duties of Fortin did not
include any trips to the inside of the warehouse (where the
“pullers” worked and the parts are stacked.) Note carefully,
however, that Bassett testified, regarding Fortin’s Metro Dade
job, “not as I had structured it.” (20:3541, 3551; 23:3978.)
That choice of words, I find, was no accident. As I have noted,
Bassett is a very articulate person. His mind is nimble, and he
handles himself well under pressure and before an audience.
When Bassett refers to the Metro Dade job as “structured,” he
is making a verbal distinction (as a reflection of a mental dis-
tinction) between the job’s alleged design and the way Fortin
worked MDA.
First, Bassett admits that he did not know whether Fortin de-
livered invoices (orders) to the warehouse personnel for action
because he did not follow here around. (23:3977.) In fact,
Fortin did. (8:1319–1320.) Bassett at first testified that the
invoices were printed in the dispatch office (different from
Fortin’s), placed by another person into a pneumatic table, and
thereby sent to the warehouse without Fortin’s ever having to
leave her office. (20:3541–3547; 22:3920–3921.) Bassett
eventually corrected this, during the Union’s cross examination,
to acknowledge that the printer was in Fortin’s office (23:3975)
and to admit (23:3976) that the MDA invoices had to go out the
same day they were printed. He then claims that it was the job
of warehouse office clerk Emily Woods to put the paperwork in
the proper envelope for delivery to the customer. (20:3502;
23:3977.)
Bassett then denies that Fortin frequently handled large
MDA orders, and asserts that Fortin did not, to his knowledge,
take invoices to the warehouse supervisors. (23:3978.) Bassett
admits that he never told Fortin how the MDA invoices were to
get from her office, where they were printed, to the MDA ac-
counts, admits that he never instructed Jenkins to tell Fortin
how it was to be accomplished, and admits that he does not
know how she did it because he did not follow her around.
(23:3977–3979.)
Contrasted with the unpersuasive, and flawed, outpouring of
words by Bassett, Fortin clearly describes how she had to han-
dle the MDA invoices (8:1319–1320):

A. Okay, they buy differently than a regular customer.
They buy in large quantities, and they have to be printed
on a special invoice with a printer that I had in my office,
and their orders had to be walked out, they weren’t just
sent out like the regular orders. They had to be walked out
to the warehouse, where they were given normally, to An-
gel or Hector.

Q. Angel Gonzalez?
A. And Hector Ortiz, or Robbie Williamson.

PARTS DEPOT, INC. 711
In answer to another question, Fortin testified that she
walked them out. Asked who told her that she had to walk
them out, Fortin never answers that anyone did, but states that it
was the “normal procedure” for the MDA invoices. Moreover
(8:1320):

They were special accounts, and you didn’t just put
them out there in the warehouse. They had to be handled,
because we had a special truck that left at a special time
and everything had to be ready at a certain time. So, eve-
rything had to be just so.

Fortin’s description is entirely consistent with the commis-
sion Division President Peter Bassett had given her back in
March—to provide a “high quality” level of service for MDA.
When Fortin did so, and, as will be covered in more detail in a
moment, as sales rose, Bassett was pleased. He and the rest of
management became displeased, I find, only when they learned
that Fortin was supporting the Union. This displeasure was
manifested in several ways. One way was to restrict her
movements, and to warn her, by redefining the nature and geo-
graphical reach of her duties. As Fortin predicted to Jenkins at
her June 2 second warning, the restrictions would damage her
ability to service MDA. As we are about to see, sales began to
fall in late June. Bassett lays all the blame on poor service by
Fortin. (20:3567–3568; 22:3913–3914.) As complaints began
coming in beginning in late June that MDA calls were not be-
ing answered or responded to, sales began to decline. “The
very nature of the job was providing outstanding service and
accessibility on the telephone.” Answering calls and making
calls to solicit orders “was the very nature of that job, not to do
warehouse work.” (23:3999–4000.)
Although Bassett asserts that he does not know why the tele-
phone was not being answered (23:4002), his testimony sug-
gests that he believes that the cause, in substantial part, was
because of trips she may have been making to the warehouse.
Bassett fails to explain why such trips, which apparently helped
to increase sales before June, suddenly became such a destruc-
tive force in late June. PDI argues (Brief at 66) that it lawfully
disciplined Fortin because she engaged in nonwork activities
during working time. “Furthermore,” PDI continues, the evi-
dence shows that Fortin, during work time, signed her own
union card, witnessed the signing of a couple of others, and
spoke with another employee in the warehouse about a union
card. PDI does not suggest the total working time thereby
“wasted” (Brief at 67), or whether this activity helped cause the
sales volume to fall, but does contend that Fortin was lawfully
disciplined.
In addition to taking orders to the warehouse, Fortin also did
some “matching.” There is a distinction between “look-up”
and “matching.” The work of doing a “look-up” is a recog-
nized function in the customer service department. It involves
using a catalog or computer to look up a part number for a cus-
tomer and determining whether the warehouse has the part.
Typically, the customer will know the make and model of the
vehicle, but not the part number. (9:1986–1987, Fortin;
20:3536–3567; 23:3990, Bassett.) By contrast, “matching”
describes the process of taking a part a customer has brought to
the warehouse counter, and physically and visually comparing
it with parts in stock in order to find a matching part. (20:3548;
23:3981, Bassett.) The dispute here is whether Fortin’s work,
especially after she took over the Metro Dade account in March
1994, involved any “matching” of parts beyond some isolated
occurrence. Fortin asserts that such matching was a daily char-
acteristic (8:1353, 1360; 9:1480–1482), whereas Bassett con-
tends that it would have been, at most, a very rare occurrence.
(20:3547–3553; 23:3979–3981.)
Describing how Jenkins’ restriction order of June 2 would
adversely affect her ability to provide a high quality level of
service, Fortin testified that “a lot of times” a Metro Dade or
regular customer would bring in a part that needed to be
matched. Instead of relying on warehouse personnel who
would have to bring up a part three or four times before, by
process of elimination, finding the right part, Fortin would her-
self take the part back and find the match. Asked why she
could not accomplish this by calling Hector Ortiz or Angel
Gonzalez, as directed by Jenkins, Fortin explained that they
would have to go through the three to four item elimination
process, and that process consumed a lot of time. When she
sent to the warehouse and did the matching on the spot, the
extra time was saved. (8:1360–1361; 9:1480.) Moreover, Hec-
tor Ortiz did not know how to match parts, Fortin credibly testi-
fied. (9:1481.)
Regarding matching, Union counsel asked Bassett whether it
was better service for the customer service representative
(Fortin) to offer to match the part rather than asking the cus-
tomer to wait or to call back while she would seek to find the
answer. Initially conceding that it would be better service to do
the matching (23:3996–3997), Bassett then slides over to the
difference in accounts, some being (full) service and others
being “EC” (earned credit) accounts which receive price dis-
counts with lesser service. MDA was of the discount variety,
Bassett testified. (23:3998.) Bassett testified that he did not
tell Fortin to provide only “EC” type service for MDA, and that
he did not tell her anything about the type of service she was to
give. (23:3998.) To the next question, however, he explains
that he did tell Fortin he wanted her to provide service of “high
quality” to build up sales. That change, he asserts, in late June
when he began receiving complaints from Robert Ortega, the
outside salesman. (23:3999.) Bassett then stresses that the
very nature of Fortin’s job was to provide outstanding service
and accessibility on the “telephone,” and that this has nothing
to do with EC accounts and service accounts because those
terms apply to service by warehouse personnel. (23:3999.)
The course of this series of questions and answers bears on
Bassett’s credibility. Thus, the Union began the series by ask-
ing whether it would be better to match than to put the cus-
tomer off until later. Bassett then, at the very least, implies that
matching should not have been done for MDA because Metro
Dade is an EC account—an account with discounted service.
Moments later, after a confusing exchange about his instruc-
tions, or not, on the type of service Fortin was to provide, Bas-
sett blithely states that the type of account is irrelevant to the
type of service Fortin was to provide. This quicksilver per-
formance by Bassett does not inspire confidence in his reliabil-
ity as a witness.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 712
In any event, a disinterested third party, the manager (Carlos
A. DeLascagigas) of one of PDI’s customers, corroborated
Fortin’s version about matching when he testified, during the
rebuttal stage, that, during 1994 and before, he and his employ-
ees would take parts three or four times a month to PDI for
Fortin to match. And this was just one of Fortin’s customers—
one of her “regular” ones, it appears. Fortin testified that, even
after she took charge of MDA, she continued to assist her
“regular” customers. (8:1329, 1360.)
The bottom line for all of this is that, as of early June 1994,
PDI redefined the nature of Fortin’s job duties, confined her to
specific work and lunch areas (unlike other customer service
representatives who could take their lunch to the warehouse,
8:1362, Fortin was restricted by Jenkins to the lunch room), and
issued her “verbal” warnings—all in response, I find, to
Fortin’s betrayal of the “trust” Bassett had in her. That is,
Fortin acted contrary to Bassett’s belief that she would not be a
union supporter.
I find that PDI was unlawfully motivated when it issued her
the “verbal” warning of June 2, 1994, and when it, on that date,
restricted her to certain areas of the Miami facility. I further
find that PDI failed to demonstrate that it would have warned
her, and restricted her, even had there been no union activity.
PDI on brief points to Fortin’s (rather modest) card signing
activities as proof that she was wasting working time when she
signed her card and witnessed two or three others sign cards.
The flimsiness of that argument is obvious. First, these activi-
ties occurred during May—a month in which, as Bassett admits
(22:3919), MDA sales were relatively high at about $33,000.
Thus, by increasing monthly sales to the $33,000 to $35,000
range, Fortin had achieved Bassett’s “desired result.”
(20:3566.)
Second, in May 1994, PDI was not aware of Fortin’s union
activities, so it could not have relied on them as a basis for any
warning on June 2. Indeed, on June 2, Jenkins did not mention
any of her union activities. What PDI did, I find, was to decide
that it did not want a Union supporter (having just learned on
May 31 that she supported the Union)—particularly one who
had betrayed Bassett’s “trust”—being able to walk out to the
warehouse where other unit employees worked. Accordingly, I
find that, as alleged, PDI violated Section 8(a)(3) and (1) of the
Act when, on June 2, 1994, it issued Fortin a “verbal” warning
and confined her to specific areas of the Miami facility. It did
this, I find, for the threefold purpose of (1) punishing her for
supporting the Union, (2) limiting her opportunities to discuss
the Union with other employees, even during her breaks and
lunch periods, and (3) deterring others from supporting the
Union.
(3) June 2, 1994—the catalog room incident
The only evidence concerning this purported incident comes
from Jenkins. Fortin did not address the matter during her
case-in-chief testimony (possibly because the incident never
happened, or, if it occurred, she was not told to consider the
matter a “verbal” warning.) Although Fortin was represented
to be a rebuttal witness (24:4195), she reportedly called that she
was delayed by a flat tire. (24:4171, 4193.) I held open the
record for a short time, to accommodate Fortin and any surre-
buttal while the parties addressed the representation portion of
the case. (24:4197.) Eventually, as no further word had been
received from Fortin, and as a heavy rainstorm had developed,
that doubtlessly would complicate travel, I declined the Union’s
request that we remain longer. (24:4209.) A few minutes later,
I closed the hearing. (24:4219.)
According to Jenkins, on June 2, 1994, he recorded a “ver-
bal” warning (RX 39) for Fortin’s personnel file after he ob-
served Fortin and two other employees (including Linda Shin-
gles) enjoying coffee (there was a coffee pot in the room),
laughter, and good times at Shingles’ work station about 2 p.m.
in the catalog room. Jenkins told the group to return to work,
that it was not break time. Fortin said she was sorry and did not
mean to interrupt Shingles’ work. Jenkins did not inquire as to
who initiated the conversation. Fortin and the other employee
left. (18:2858–2862, 2907–2908, 2944–2948, 2963.) Jenkins
does not recall whether he issued a warning to either of the
others (18:2946), and there is no evidence showing that he did.
The warning form (RX 39) respecting Fortin does not bear
Fortin’s signature in the space for the employee’s signature
(there is no evidence that Jenkins presented the form to her or
told her that he would document the incident for any purpose.)
Over hearsay objections, I declined to receive the document for
the truth of the matter asserted in the document (18:2863-
2865), but I did receive the document for the limited purpose of
Jenkins’ motive respecting the written warning yet to be dis-
cussed. (18:2904.) Although PDI did not offer the document
under the exception for records of regularly conducted activity
(the “business” records exception), FRE 803(6), I would not
have received it for the truth because, under all the circum-
stances and events of an ongoing union organizing campaign,
and in light of Jenkins’ poor demeanor, I would find that the
document not to be trustworthy. FRE 803(6); Pierce v. Atchi-
son Topeka & Santa Fe Railway Co., 110 F.3d 431, 443–444
(7th Cir. 1997.)
PDI also mentioned the complaint allegation respecting June
2 as a purpose for the motive offer. As I have found, the date
of June 2 specified in complaint paragraph 13 includes the
loading dock incident. [The loading dock area is the same area
as the shipping line. 20:3390, Williamson.] Although Jenkins
would place the loading dock incident on June 7, based
(18:2872) on a reference to June 7 in the June 23 written warn-
ing to be discussed, I credit Fortin’s testimony that the loading
dock incident occurred the day after the scheduled June 1 elec-
tion hearing. (8:1348.) As the motive on a June 2 catalog inci-
dent (which Jenkins places at 2 p.m., 18:2945; Fortin fixes the
loading dock incident at 11 a.m. on June 2, 8:1348) can bear on
the motive for other events, I consider it as to all events.
As Fortin did not address the catalog incident during her di-
rect examination, and was not asked about it on cross examina-
tion, and as she did not testify on rebuttal, we do not have her
position on the claimed incident. Because I find Jenkins to be
particularly unworthy of belief as a witness, I am very reluctant
to accept anything which he asserts. I do not do so when a
matter is disputed, particularly if the dispute is a direct rebuttal.
And if the rebuttal can be inferred, I do not credit Jenkins.
Respecting the catalog room, I note that it was a work area
where Fortin would have occasion to visit. Moreover, before

PARTS DEPOT, INC. 713
June 1994, PDI had never restricted employees in their conver-
sations with other employees at work. (8:1364, Fortin.) What
Fortin apparently means is that PDI does not prohibit limited
nonwork conversations during working time, for PDI’s 1991
employee handbook rules are either broad enough (no “inter-
ference with the performance of other employees”; “…lack of
application…”; “Any other conduct . . . ”—RX 40 at 37–38), or
illegal enough (no “circulation of petitions”; no “distribution of
literature not approved by the Company”; and no “solicitation
of membership . . . ”—RX 40 at 41–42), to prohibit all non-
work conversations if so enforced. Although Jenkins asserts
that the coffee pot present that day was not the normal one for
the employees in that area (18:2945), he does not suggest that
employees should not have been drinking coffee during work
time.
To conclude this matter, and in noting that Fortin appears to
have been the only person present whose personnel file was
stuffed with a “verbal” warning over the incident, I find that
Jenkins’ real motive (even assuming there was an actual event
bearing some similarity to Jenkins’ description) was to further
punish Fortin for betraying the “trust” which Bassett placed in
her (a “trust” that she would be nonunion), and to further paper
her personnel file in anticipation of an eventual discharge.
Further, I find that PDI has failed to show that it would have
issued the warning even in the absence of any union activities.
I therefore find that, by documenting the “verbal” warning for
Fortin’s personnel file, PDI violated Section 8(a)(3) of the Act,
as alleged.
(4) June 23, 1997—the Core Department warning
Before Fortin switched to handling MDA, her day began at
7:30 a.m. (8:1316.) Nothing indicates a different starting time
for her work on MDA. Ronald Casco, a checker working in the
Core Department (the returns area) in June 1994 (20:3512,
Bassett) also began work at 7:30 a.m. (20:2384–2385, Wil-
liamson.)
About 7 a.m. (7:1074; 8:1278, Casco) to 7:10 a.m. (8:1363,
Fortin) the morning of Thursday, June 23, Fortin went to the
Core Department and, in a brief conversation of a few seconds,
asked Casco if he would give her a ride home that afternoon
because her car was being repaired. Casco said yes. No other
employees were in the Core Department at the time. On her
way to the department, Fortin had passed the office of Chair-
man Rollance E. “Rollie” Olson, one (RX 40 at 3) of the major
owners of PDI, as Olson sat in his office. They exchanged a
“Good morning” as Fortin passed. As Fortin turned to leave
Casco and start for her office, she saw that Olson had ap-
proached and was looking at them. Olson said nothing.
(8:1363–1364; 9:1540–1542, 1545.) [When called as PDI’s
witness on a tangential topic, Casco makes a vague reference to
an occasion when Fortin came to his work station, and Olson
came by. The question was about work time. (19:3199.) As
this testimony was not developed, I rely on the earlier testi-
mony describing a specific incident and giving specific times.]
About 4:30 that afternoon, Fortin testified, she was called to
Jenkins’ office where, in the presence of Human Resources
Director Robert Tennant, she was given a written warning
(GCX 24) for disrupting the work of (Casco) by engaging in
“idle” conversation while both employees, it being 7:30 a.m.,
were on work time. (8:1365; GCX 24.) The warning form
(GCX 24), completed by Jenkins (and also signed by Tennant
as a witness), after stating that it was Olson who had observed
Fortin at “7:30 AM” on June 22 12 engaging in “idle” conversa-
tion while both employees were on work time, asserts that
Fortin has had two prior “verbal” warnings, one on June 2 and
the other on June 7, for the “same actions.”
For expected improvement and plan for improvement, Jen-
kins wrote (GCX 24):

Vivian has been warned not to disturb other employees
while they or she is on work time. She is expected to stay
at her assigned station and promote sales to Metro accts. &
serve as back up to Eddie Leeds with customer look up
calls.
Vivian is expected to refrain from disruptive actions
with other “on the clock employees” and wandering into
areas of the complex which she has no business to be in.

For future action the document warns that any repeat of “this
disruptive behavior will result in termination of employment.”
At the interview Jenkins explained that termination would be
“on the spot.” (8:1365.)
After Jenkins had told Fortin the basis for the warning,
Tennant handed Fortin the document and asked her to sign it.
Fortin began reading the form. Reaching the reference to two
previous verbal warnings, one on June 2 and one on June 7, and
being unaware of any June 7 warning, she asked Jenkins about
the June 7 reference. Jenkins merely lifted his hands and said,
“Oh, well.”
Laying the document on Jenkins’ desk, Fortin announced
that she would not sign it. She told the men that it was not fair,
that she had not engaged in any idle conversation, that she had
just asked for a ride to pick up her car. (8:1365–1369.) Fortin
did not write this reason for not signing, or write any comment,
in the employee comment section of the warning form. Jenkins
recalls that Fortin had no response. (18:2873, 2958.) He also
has no recollection that she commented as described.
(18:2959.) Unlike Jenkins, Fortin testified convincingly, and I
credit her version that she commented, as described, even
though she wrote nothing in the comment section. There is no
dispute that she refused to sign. It is consistent with that refusal
that she also would not dignify the document by inscribing a
comment when she was not going to sign it.
Jenkins admits he had prepared the document before the
warning interview, and that his intention, before the interview,
was to give the warning. (18:2957, 2959.) Jenkins does not
recall whether he asked Fortin why she had gone to the Core
Department. (18:2958–2959.) I find that the warning interview
was a mere formality, not an investigative interview before
decision. The decision had been made, and the warning pre-
pared. I find that Jenkins did not ask for Fortin’s version, al-

12 Jenkins apparently transposed the date in the text. No party con-
tends that the incident happened a day before the warning was given.
Fortin clearly asserts that it all happened the same day. The complaint
allegation of June 24 is in error.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 714
though Fortin did have the opportunity to write her comments
on the form.
Owner Olson did not testify. Neither did Tennant. Bassett
asserts that Tennant left PDI sometime in 1995. (21:3815;
22:3831.)
PDI argues (Brief at 64) that, as Casco testified that he took
Fortin to the Union’s office after work (8:1279), this proves
that Fortin came to talk with Casco about union matters, not
about any ride. This argument conveniently overlooks (1)
Casco gave her a ride, and (2) Casco’s testimony that the plan
changed after Fortin got the warning that afternoon and that is
why Casco took her to the Union’s office. (8:1279.)
From the evidence that there are telephones in both Fortin’s
office and in the Core Department in June 1994, and that Fortin
could have called Casco (18:3000, Jenkins), PDI argues (Brief
at 64) that there was no need for Fortin to have gone to the
Core Department. That brings us to consider the time of the
incident. Jenkins asserts that he wrote the warning document
based on the account given to him by Olson. (18:2868, 2956.)
The shift did not begin for either Fortin or Casco until 7:30 a.m.
That fact, I find, presented a problem to PDI, for, crediting
Fortin and Casco, I find that Fortin and Casco had arrived on
the premises before the 7:30 a.m. start of their shift, and that
Fortin’s brief visit to Casco occurred at no later than 7:10 a.m.
(PDI did not identify or offer in evidence the time cards of
Fortin and Casco to rebut their testimony of when they arrived,
or at least clock in.)
Noting that Jenkins “possibly” consulted with Bassett over
the warning (18:2957), and aware that Chairman Olson was
intimately involved in the incident, I find that Jenkins did not
fashion the time on the warning by himself. Moreover, I find it
unlikely that Olson would have seen a need to deceive Jenkins
and Bassett about the time. Thus, I find that Jenkins, in consul-
tation with Bassett, and with Bassett probably in consultation
with Olson (and possibly all three together), conspired to sup-
ply a fraudulent time of the incident, moving the actual time
from 7:10 a.m. to the false time of 7:30 a.m. The purpose for
this fraud was to place Fortin in Casco’s work area during the
working time of both employees, thereby enabling PDI, by
Jenkins, to issue a final warning to Fortin. With any repeat
“violation,” Fortin could be discharged “on the spot.”13
Respecting motive, the General Counsel and the Union cite
the fact that Fortin was neither scheduled for nor invited to
attend any of Bassett’s antiunion speeches. (9:1387, Fortin;
18:2976–2981, Jenkins.) I shall not dwell on this point. No
complaint allegation attacks this exclusion, and for good rea-
son. Mere exclusion of union advocates from company anti-
union meetings, in the absence of some discriminatory impact
more substantial than performing their regular jobs during the
meetings, is not unlawful. Daniel Construction Co., 266 NLRB
1090, 1102 and fn. 30 (1983.) The union elicited Jenkins’ cited
testimony for the purpose (18:2975–2976) of countering the
thrust of offers by PDI of some of the June “verbal” warnings
as showing a good faith (business considerations) motive or
state of mind, so as to explain (as a type of good faith back-
ground) Jenkins’ motivation for the written warning of June 23
(18:2902–2906.) Of course, I have found that the first three
“verbal” warnings of June 1994 were unlawfully motivated.

13 As the sage Amenemope instructed about 1250 B.C.:
Do not make for yourself false documents,
They are a deadly provocation.
M. Lichtheim, 2 Ancient Egyptian Literature 146, 158 (1976, Univ.
of Calif. Press.)
Even if the General Counsel and the Union (addressing the
matter that if the exclusion is lawful, how it could be held
against the company) had articulated a basis for treating the
exclusion as an adverse motive factor, something they did not
attempt, I would attach no significance because the record is
undeveloped on the matter. Thus, if Fortin was excluded from
the meeting of May 17, as well as those for which schedules
were made, that could indicate company knowledge even be-
fore she tendered her subpena to Jenkins on May 31. On the
other hand, perhaps for that meeting Bassett wanted Fortin to
handle MDA calls. The record is undeveloped on this, and I
need not speculate.
Concluding on this written warning, I find that PDI (with
Chairman and major owner Rollance E. “Rollie” Olson inti-
mately involved) was unlawfully motivated when it issued the
June 23, 1994 written warning to Vivian Fortin. I also find that
PDI failed to establish that it would have issued the warning
even in the absence of any union activity. Indeed, I have found
that the warning was prepared based on a fraudulent manipula-
tion of the time of the event so that, by such fraud, PDI could
issue Fortin a final warning.
In short, respecting the four warnings issued in June 1994, I
find that, as alleged, PDI violated Section 8(a)(3) of the Act by
imposing the “verbal” warnings of June 1 (the subpena matter)
and June 2 (the loading dock incident and the catalog room
incident), and the written warning of June 23, 1994 (the Core
Department incident.) I shall order PDI to expunge all evi-
dence of these four warnings from her personnel file, and to
notify Fortin in writing that this has been done and that PDI
will not use these warnings against her in any way.
F. The August 1994 unfavorable job performance evaluation
(1) Introduction
Before beginning my summary of Fortin’s August 1994 un-
favorable job performance review, I should update her principal
union activities. Despite the frequent warnings and harassment
in June from Operations Director Jack Jenkins, Fortin was
highly visible in her support of the Union at three different
points beginning in mid-June. Following the May 31 subpena
notice to Jenkins (who promptly told Bassett) and the June 2
publication in the Miami Herald of the news article (GCX 22)
about the scheduled election, with Fortin as the only employee
quoted by name, Fortin, as noted earlier, was in the group photo
(RX 33 at 18; GCX 20) on the leaflet which Bassett displayed
at the sessions of his June 14 speech. (20:3599–3602.) The
text’s large print headlines ask whether employees are con-
cerned about low pay and want job security and to be treated
fairly, among other items.
Bassett testified that, pointing to the text at the June 14 meet-
ing, he told employees, “There they go again making promises,
promises, promises.” (20:3500.) Although Bassett asserts
(22:3841–3842) that he pointed to the text above the photo, and

PARTS DEPOT, INC. 715
denies pointing to the photo itself, the prominent place of this
leaflet, with the photo of the seven employees, including Fortin,
simply reflects that Fortin was prominent in the organizing
campaign.
About July 6, the day before the voting began in the NLRB-
conducted election, Fortin and other union activists distributed,
to employees in the parking lot of the Broward county facility
of PDI, copies of an open memo (GCX 23) from Fortin “To My
Coworkers Here At P.D.I.” (8:1342–1344; 9:1496.) In the text
of her memo, a memo distributed to encourage the Broward
facility to join Miami in voting for the Union, Fortin states
(GCX 23), above her signature:

We need the union here at P.D.I. We must all vote
Yes to make P.D.I. a better place to work. For years we
have put up with the mood swings of our supervisors.
They yell at us, give us the silent treatment and [act] real
nasty.
Now maybe someone will listen to us and realize we
are human beings. We need regular raise increases, af-
fordable insurance, respect and job security. We are not
little children. We are all grown men and women. We are
the Union. We must vote YES to secure our future.

At the bottom of the memo-handbill, under a black hand,
white hand handshake graphic, is a graphic of men women and
children with the caption, “What we can’t do alone we can do
together.” The handbill bears a large marker-pen headline stat-
ing, “Please Read Before You Vote.” Although Fortin does not
know who inscribed that headline on the handbill, she does
know that it was there when she distributed the handbill.
(81343-1344.)
Finally, at the election itself, Fortin and Ronald Casco served
as the Union’s observers. (8:1341–1342.)
(2) Prior performance evaluations
Before her August 1994 evaluation, Fortin had received two
earlier written evaluations, the first in 1987 (GCX 10) and the
second (GCX 9) in 1989. (2:245–248, Pacheco.) Although
company records show that Fortin received her last appraisal in
June 1992, that was merely a reference to a general wage in-
crease, Pacheco explains. (2:244, 313.) Thus, from 1989 to
August 1994, Fortin was not given a performance evaluation.
(19:3210, Pacheco.)
The 1987 and 1989 evaluations, or appraisals, are on one-
page forms with ten categories to be appraised by checking one
of five box-rankings of Superior, Above Standard, Standard,
Below Standard, or Unsatisfactory. The 10 categories (includ-
ing quality and quantity) are followed by an overall ranking,
and a space for the supervisor’s comments.
In Fortin’s March 1987 appraisal, which actually was her 90-
day review, Pacheco gave Fortin an overall ranking of “Above
Standard.” (GCX 10.) Fortin received an “Above Standard”
on all categories (including quality and quantity) except two —
punctuality, for which she received a “Superior,” and judgment,
for which she received a “Standard.” Pacheco’s written com-
ments are consistent with the overall ranking.
Although Pacheco failed to check a box for the overall
evaluation on Fortin’s April 1989 appraisal, it is clear from the
rankings assigned to the 10 categories that the overall ranking
again would have been “Above Standard,” and I so find. Thus,
Fortin received an “Above Standard” in six categories (includ-
ing quality and quantity), a “Standard” in two (dependability,
appearance) and a “Superior” in two (adaptability, work atti-
tude.) For her comments, Pacheco wrote that Fortin needed to
improve in answering her extension lines, and in making her
call-backs to customers. (GCX 9; 19:3210–3211.)
(3) The new evaluation form
Either for 1994, or by 1994, the appraisal form had changed
to a four-page format. The first page is devoted to explanatory
comments and instructions, plus a performance rating scale of 1
to 5, with 1 being the lowest (“Well below Standards”) and 5
the highest (“Outstanding”.) A “2” means “Improvement
needed,” a “3” means Standards Met,” and a “4,” similar to that
of the prior years, means “Above Standards.” (GCX 8; 2:195.)
The performance categories begin on page 2, extend to mid-
way of page 3, and are listed under broad headings beginning
with, “I.A. Job Performance Factors.” Under I.A. are listed
five specific categories of: Quantity of Work, Quality of Work,
Timeliness of Work, Cost, and Safety. For each category there
are boxes, numbered 1 to 5, for checking in accord with the
performance ratings mentioned above.
Heading I.B. is for “Factors Affecting Job Performance.”
Under this heading are six specific categories: Initiative, Atti-
tude, Adaptability, Communication, Relationship With Others,
and Punctuality and Attendance.” For each of these the super-
visor must check one of the rating boxes numbered 1 to 5.
The next heading is “II.A. Overall Evaluation,” with boxes 1
to 5. Heading II.B. is “Potential Ability,” and that has four
boxes dealing with the potential for promotion, whether prop-
erly placed, or not properly placed. The next heading is “III.
Development Guide,” and it has a space for specific recom-
mendations. Item IV has no heading, but consists of two ques-
tions on how long the “Evaluator” has known the employee and
how long such evaluator has supervised the employee. There
follows a space for the evaluator’s signature, date, and title.
That carries use to page 4 of the form where heading “V.I.
Employee” provides several lines of space for the employee to
record his or her comments. That is followed by a space for the
employee’s signature and a space for the date. Finally, the “V.
Reviewer” space is for comments by the supervisor’s superior,
followed by the reviewer’s signature and date.
In advance of providing some additional summary, I need to
give a peek at the August 1994 evaluation’s bottom line. On
this evaluation, Pacheco (joined by Bassett, as I will describe)
gives Fortin an overall ranking (item II.A.) of 2. (GCX 8 at 3;
2:310, 323.) Bassett agrees with “everything” in the review, as
earlier noted. (23:4049.) This specifically includes the rather
poor rating of “Properly placed” for the category of II.B., Po-
tential Ability.” (23:4050.)
The 1987 and 1989 (written) appraisals do not assign a num-
ber value to, for example, “Above Standard.” As they had five
overall ratings, as does the (new) 1994 form, it is clear, and I
find, that the “Above Standard” in 1987 and 1989 is the equiva-
lent of the “4” value assigned to 1994’s “Above Standards”
performance rating, and that 1994’s “2” (for “Improvement

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 716
Needed”) is the equivalent of the old “Below Standard.” What
brought about this drop for Fortin from a 4 to a 2? Was it for
strictly business considerations, or did it come about because
Pacheco and Bassett, especially, retaliated against Fortin for
supporting the Union?
(4) Fortin’s August 3, 1994 evaluation
(a) Bassett directly involved
The first item I address here is the date of Fortin’s August
1994 performance evaluation. Although Pacheco failed to sign
or date her signature (2:194), she did date the first page as Au-
gust 3, 1994. Fortin signed, and the date she wrote appears to
be August 3, 1994. (GCX 8 at 4.) Ordinarily, Bassett testified,
Jack Jenkins, Pacheco’s immediate superior, would have signed
in the Reviewer’s space, but because Jenkins “had resigned” by
then (22:3834), Bassett, who edited and reviewed the document
“before the review was actually conducted” (22:3833), signed
the form where Jenkins would have signed (2:194; 22:3833–
3834.) Bassett’s signature is dated August 2, 1994. As Bassett
did his editing and reviewing before Pacheco interviewed
Fortin (GCX 8 at 4; 22:3833), it appears, and I find, that
Pacheco would have signed on August 2. That date, I find, is
the date when Bassett and Pacheco conferred—the day before
Pacheco interviewed Fortin and gave her the evaluation inter-
view.
Bassett testified that he agreed with everything written in the
evaluation. (23:4049.) Indeed, Bassett testified, as noted, that
“I did edit and review the document,” and signed it, before
Pacheco interviewed Fortin (22:3833), because (22:3833–
3834):

I had to assure myself, and I wanted to assure our
management to make sure that this performance review
was conducted and did reflect my thoughts, although not
my writing, with regard to the Metro Dade problem I was
having, and I wanted to make sure that there were plans
and counseling going forward.
So, I did review the document prior to the giving of the
review. I signed the document indicating that I had re-
viewed the document, and I wanted to make sure that
whatever weight I could give to it with regard to making
sure that I knew what was on the document, I wanted to
make sure that that happened. That’s [his direct involve-
ment] typically not the case.

Had Jenkins been there, Bassett would have done this
through Jenkins, meaning that he would have expressed his
concern to Jenkins. “I did have significant concerns, particu-
larly with the loss of sales. I wanted to be sure that—you
know, my habit in my management was, make sure this is cov-
ered, make sure that is covered in the review process so that we
can expect improvement.” (22:3834.)
It appears that Jenkins tendered his resignation about early
July and departed by the end of July 1994. Jenkins testified
that he worked at PDI “until August” (18:2841), and Bassett
asserts (22:3834) that Jenkins “had resigned” (that is, Jenkins
had departed) by August 2 when Jenkins did the review.
Moreover, when Jenkins submitted his resignation, Bassett
removed him from “the direct loop” and Bassett assumed Jen-
kins’ line-of-command responsibilities. (2:3917–3918;
23:4052–4053.)
This preliminary data about Jenkins’ departure, and about
Bassett’s direct involvement in editing, reviewing, and signing
Fortin’s August 3 performance evaluation, has a bearing on the
credibility aspects of that appraisal. Based on the foregoing
facts and all the record, I find that the August 3, 1994 evalua-
tion (GCX 8) was not simply Pacheco’s, but is properly termed,
as I find, the Pacheco/Bassett evaluation of Fortin. Turn now to
Bassett’s reference to the drop in sales.
(b) The asserted drop in MDA sales
According to Bassett, in late June he noticed that the sales
figures for MDA were dropping. About the same time, Robert
Ortega (who did not testify), the outside sales person handling
Metro Dade, began reporting that customer service for MDA
was deteriorating. Bassett directed Jenkins to get the problem
corrected. Bassett believes that the problem was that Fortin
was simply not answering the telephone. The sales figures for
the month ending about July 25 dropped from about $33,000, a
month earlier, to about $20,00. (20:3566–3569; 22:3910–3918;
23:3999-4012.)
Jenkins (who does not corroborate Bassett’s testimony about
directing him to investigate and resolve the problem of the
MDA sales crashing) also testified that Ortega complained to
him about not being able to contact Fortin, and that he (Jenkins)
had also received some calls himself from Metro Dade callers
who were “irritated” at the service. Jenkins recalls no specifics.
(18:2845–2847, 2941.) Thus, on cross examination by the
Government (18:2942–2943):

Q. And is there any notation that was made in her per-
sonnel file concerning a complaint from Salesman Robert
Ortega?
A .I don’t recall, sir.
Q. Did you ever discuss these customer complaints
with Vivian Fortin?
A. My recollection is I did, sir.
Q. When did you discuss the first customer complaint
with Vivian Fortin?
A. I don’t recall the date, sir.
Q. When did you discuss the second customer com-
plaint with Vivian Fortin?
A. I do not recall, sir.
Q. When did you discuss the third customer complaint
with Vivian Fortin?
A. Same response, I do not recall.

. . . .

Q. Did you ever document, in Vivian Fortin’s person-
nel file, your discussion with her regarding customer com-
plaints?
A. Well, I’ll have to let the file speak for itself. I don’t
recall.

To the extent that Fortin’s personnel file spoke for the
record, it did not disclose documentation of any such
complaints by Ortega or conversations with Fortin about
any such complaints. (Bassett concedes that no Metro

PARTS DEPOT, INC. 717
Dade customer ever submitted a written complaint re-
garding Fortin’s service. 22:3922.) I find that Jenkins
never had any such conversations with Fortin and that he
never received any such complaints from Ortega.
Even Pacheco testified that Ortega had called her to com-
plain that Fortin was taking too long to respond to the Metro
Dade calls and that Fortin let her phone ring too long. Unfortu-
nately, Pacheco does not recall when Ortega made these com-
plaints to her other than that it was sometime in 1994, but she
does not recall whether it was before or after the July election.
Despite the fact Ortega complained more than once, no notation
was placed in Fortin’s file. (19:3207–3208, 3265–3270.) In-
deed, Pacheco apparently never even spoke to Fortin about
Ortega’s complaints because, recall (2:226, 305), she never
counseled her after the third time which, as I summarized ear-
lier, (supposedly) occurred in early 1994. As therefore might
be expected, Pacheco’s pretrial affidavit says nothing about
customer complaints. Instead, in that affidavit Pacheco de-
scribes problems with productivity. (19:3290–3291.)
Actually, Pacheco claims to have spoken with, or counseled,
Fortin sometime before the August evaluation about produc-
tion. Pacheco asserts that, on this occasion, she told Fortin that
she (Fortin) was “not getting a lot of calls.” Pacheco asked
what was happening. (2:201.) Pacheco’s description then
seems to merge that event with the earlier conversations with
Fortin. The significant point, however, is Pacheco testified (it
is unclear whether she also said this to Fortin) that, by this time,
Eddie Leeds was with Fortin sharing Fortin’s load and, in fact,
shouldering most of the load. Leeds was assigned to help her
when Fortin’s voice mail system was removed. (2:201, 206-
207, 254.)
According to Pacheco, Fortin did not need the voice mail be-
cause Leeds was helping her. (2:206.) But Pacheco concedes
that Leeds was assigned only after the voice mail was removed.
(2:207.) Bassett advises that the special phone number (which
the Metro Dade customers could call to get Fortin), along with
the voice mail, and the special van for delivering specifically
for orders to MDA, were eliminated about June as a result of
the cost reduction program which began about that time.
(23:4005, 4009, 4011.) As to Leeds, recall from my earlier
description, concerning Bassett’s reestablishment of the Metro
Dade account, that beginning in July 1994, Fortin, as she could,
was to help Leeds with look-ups for other customers. (20:3540,
3564; 22:3908; 23:4010.) Leeds would not assist Fortin be-
cause of the exclusivity accorded MDA. (22:3907.) Even Jen-
kins disagrees with Pacheco, testifying that MDA was Fortin’s
“sole” assignment as of May and June. (18:2844.) And when
Fortin was given some responsibility outside MDA, it was, as
Jenkins wrote on the written warning of June 23, to serve “as
back up to Eddy Leeds.” (GCX 24.)
Even Jenkins disagrees with Pacheco, testifying that MDA
was Fortin’s “sole” assignment as of May and June. (18:2844–
2845.) And when Fortin was given some responsibility outside
MDA, it was, as Jenkins penned on the written warning of June
23, to serve “as back up to Eddy Leeds.” (GCX 24.) That is
consistent with Bassett’s description.
Besides such discrepancies pertaining to Pacheco, another
reason I do not credit her is that, per the credited testimony of
Fortin, immediately following Fortin’s appearance, under the
Union’s subpena, at the representation hearing scheduled for
June 1, Pacheco turned cold and unfriendly toward Fortin,
whereas previously Pacheco had been most friendly. They had
been family friends for years. (8:1345–1347; 9:1492–1493.)
This change, I find, was the result of Pacheco’s knowledge of
Fortin’s support of the Union. I also find that such antiunion
coldness is the basis—the only basis—for the various criti-
cisms, and the poor ratings, which Pacheco leveled against
Fortin in the evaluation of August 3, 1994.
Return now to Bassett’s testimony. According to Bassett, af-
ter Fortin received her unfavorable evaluation on August 3,
MDA sales returned to the previous level. The evaluation, in
Bassett’s opinion, had a motivating effect on Fortin and there-
fore achieved the result intended. (23:4065–4067.) Once
again, by late August, Fortin’s handling of MDA was an “as-
set” to PDI. (23:4083, Bassett.)
I do not believe any of this testimony. The company wit-
nesses all testified with an unfavorable demeanor, and conflicts
abound among their versions. For example, with the heavy
emphasis on Ortega’s complaints and the claimed drop in the
volume of sales to MDA (PDI offered no business records to
support the figures mentioned by Bassett), one would expect to
find that fact highlighted in the August 3 evaluation. Instead,
Pacheco wrote, “I do not receive complaints from customers.”
(GCX 8 at 3.) At trial Bassett, asked if he agreed with that, and
after receiving confirmation of the quote, testified (23:4049),
“Then I agree.”
Respecting Bassett’s claim that sales declined in July, no
business records were offered in support of this claim. I find
that, whatever the figures, Fortin had reached a number, possi-
bly $33,000, rather quickly and maintained that number
thereafter until the effects of PDI’s cost reduction program, and
the extra work for Fortin of assisting Eddie Leeds, began to
impact adversely on Fortin’s ability to keep the MDA sales
volume up. Another reason I do no credit Bassett’s version is
that he was very unpersuasive in asserting that he had no need
to do anything beyond telling Jenkins to solve the problem.
After all the personal involvement which Bassett had invested
in reestablishing the MDA, I find it highly implausible that
Bassett would not personally have gotten deeply involved in a
real investigation had there really been a problem. One of his
first acts (as it was in May when he heard that employees were
signing union cards) would have been a personal conversation
with Fortin. But he does not even claim there was such. I do
not believe one word of Bassett’s testimony on this matter.
As for Bassett’s testimony that sales were restored in August
to June’s $33,000 figure, I note Vice President Mark Noble’s
testimony that MDA sales had “fallen off” and were continuing
to decline. (17:2790, 2800.) Although Noble gives no dates or
figures, his language is more consistent with a steady decline,
not a big drop in July, followed by a big surge in August, and
then a steady decline. I so find. In short, I do not believe Bas-
sett regarding his big drop/big surge description of the sales
history for July-August 1994. Instead, I find that any change in
sales may well have been a decline, but it was a steady decline

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 718
beginning in July 1994. Moreover, such steady decline had
nothing to do with any deficiencies by Fortin. Rather, the de-
cline was the natural, and apparently the not unexpected, result
of the cost cutting measures which PDI undertook beginning in
late June 1994.
(c) The specific entries
Before we turn to the entries that yielded the overall 2, note
Pacheco’s testimony that, in arriving at the overall number
value of 2, she did not have a chart listing assigned weights, or
values, for the specific categories. That is, no chart or guide
told her, for example, that the Quality category is worth 10
points. (2:322–323.) By extension, therefore, no chart assigns
points for the numbers, such as 10 points (for Quality) for a 5
rating, or, say, 2 points for a 1 rating on Quality, with a range
of total points for all categories being equal to one of the over-
all rankings of 1 to 5. Stated differently, the 1994 appraisal
system does not use a point system so that 1 to 20 points earns
a 1 overall, 21 to 40 points earns a 2, 41 to 60 points a 3, 61 to
80 a 4, and 81 to 100 a 5.
Instead, the supervisor (Pacheco here) simply eyeballs the
categories and numbers, does mental comparisons of the work
done with the job duties, and assigns number weights on a sub-
jective basis. While a point system would not eliminate the
subjective aspect, it would assign specific weights to the differ-
ent categories and to the category ranking numbers.
Turn now to the specific entries. The first category, under
I.A., Quantity of Work, and for this category, Pacheco rated
Fortin as a “2.” (2:195.) In the space for comments on this
category, Pacheco wrote: “Daily review of ACD inbound and
outbound calls indicate quantity of work needs improvement.
17 outbound calls added to inbound. Calls still put you in the
lower percent of answering calls.” (GCX 8 at 2.) What
Pacheco has done is the review Fortin as if she no longer was
handling MDA. Servicing MDA had been a full time job, and
it included much more than simply making and receiving tele-
phone calls. Beginning in July, Fortin was told to help Leeds
on his overflow of look-ups. That was in addition to her regu-
lar MDA work, not in place of it. There was no way Fortin
could have been evaluated under a standard of a daily 150 to
300 calls, as if she were back in the phone room doing standard
customer service calls. This rating, I find, is the result of the
union animus which, I have found, both Bassett and Pacheco
harbored against Fortin. Absent that animus, I find that Fortin
would have received the equivalent of what she did in 1989 —
a 4.
Quality is the second category. For this category, Pacheco
gave Fortin a 3., commenting, “You are good at the books &
your work meets standard.” (GCX 8 at 2.) It is revealing that,
even when Pacheco was compelled to write something favor-
able, the most Pacheco could bring herself to do was to rate
Fortin as a 3. That is, Fortin just met the standard. In 1989
Pacheco gave Fortin the equivalent of a 4 for Quality. (GCX
9.) In light of that, and of Bassett’s glowing description, at
trial, of Fortin’s skills, I find that 3 to be tainted by unlawful
motivation. Absent that illegal animus, I find that, as she did in
1989, Pacheco would have awarded Fortin a 4.
The third category is Timeliness, and Pacheco awarded
Fortin a 2 on this one, also, adding a comment that her low
number of calls suggest that Fortin may be chatting on her
calls. As with Quantity, the rating given her is tainted by the
unlawful motivation underlying the evaluation. As noted,
Pacheco’s evaluation is written as if Fortin was not involved
with the additional duties of handling MDA besides making
and receiving MDA calls. Absent the unlawful motivation, I
find that Pacheco would have rated Fortin a 4 in this category.
“Cost” is the fourth category, and here Pacheco gave Fortin a
3, inscribing for her comments, “I have not observed you as a
cost waster. You are working at standard.” The printed expla-
nation under the rating boxes states, “Minimizes controllable
cost and effectively utilizes resources on the job.” Giving
Fortin a 3 in the face of her having, by herself, substantially
increased the MDA sales demonstrates that she clearly was
utilizing resources. At trial Bassett spoke high praise of
Fortin’s customer service skills. Indeed, those skills (plus the
fact that he trusted her) are why Bassett selected Fortin to han-
dle MDA. Although there is no specific counterpart on the old
form, in the absence of any specific complaint by Fortin, I find
that, had there been no unlawful motivation, Pacheco would
have rated Fortin as a 4.
For the fifth category, Safety, Pacheco gave Fortin a 3. Not-
ing that Fortin’s job is not substantially impacted by safety
issues, Pacheco nevertheless states on the form, “However, I
have seen you in the warehouse and you are careful. Therefore
your safety meets standards.” There is no safety category on
the old form. Nevertheless, on the old form, in 1989, Pacheco
gave Fortin (the equivalent of) a 4 for Judgment. In light of
(the equivalent of) an overall 4 in 1989, and a 4 in the Judg-
ment category, I find that, absent discrimination here, Pacheco
would have given Fortin a 4 on Safety in August 1994.
Turn now to the second group, that of I.B., the factors affect-
ing job performance. The first category is Initiative, and here
Pacheco has given Fortin a 2, commenting, “It is my observa-
tion that you often require detail instruction on new things and
do not always appear confident. You need to improve [in] this
area.” At trial Bassett theorized that the description refers to
Fortin’s possible failure to take quickly to computer technol-
ogy. For someone who supposedly has been called a computer
“guru” (20:3634), yet does not know how to insert a page break
in a computer document and therefore has to use the return key
to bring up the top of the next page (23:4039–4042), Bassett’s
trial supposition that Fortin is equally slow at learning com-
puter skills is grossly unimpressive. As it was Fortin who,
“without detailed instructions” (the printed standard under the
rating boxes), substantially increased sales on MDA, I find the
rating here, and the comments of Pacheco and Bassett, to be a
total fabrication in order to put Fortin in a false light. Absent
the virus of antiunion animus, Pacheco would have awarded a
5. Although there is no Initiative category on the old form, she
received a 5 on Adaptability and a 5 for Work Attitude on the
1989 form. These are related to initiative.
For the next category, Attitude, Pacheco gives Fortin a 3,
commenting, “You show interest in your job and you cooper-
ate. You are operating at standard.” As noted, Pacheco gave
her the equivalent of a 5 in 1989. At trial, Bassett testified that

PARTS DEPOT, INC. 719
Fortin always “cheerfully” volunteered for anything that needed
to be done. (23:3994.) Yet after the Union came on the scene,
Bassett, I find, saw to it that Pacheco’s evaluation rated Fortin
no more than a 3—even when they had only good things to say.
Absent the taint of unlawful motivation, Pacheco and Bassett, I
find, would have awarded Fortin a 5.
The third category here is Adaptability, and Pacheco gave
Fortin a 3, writing, “As [with] Initiative you need to improve to
adapt to new situations. Your experience in converting to new
ADP is [a] very good example. I’m sure you can improve if
you try.” I find that Pacheco simply overemphasized the nor-
mal learning process here in order, as with the initiative cate-
gory, to put Fortin in a bad light—all for the purpose of laying
the paper groundwork to get rid of her. Absent that unlawful
motivation, I find that Pacheco, as she did in 1989, would have
given Fortin a 5.
“Communication” is the name for the fifth category.
Pacheco rated Fortin as no better than 1. The printed explana-
tory matter reads, “Effectively presents facts and ideas both
orally and in writing; keeps his/her supervisors and others in-
formed of pertinent matters.” Pacheco wrote, “You are operat-
ing below standard. For some reason you continue to ignore
me, your supervisor, and do not keep me informed or involved
in your assignments. I try to communicate with you but you do
not return it.” Contrary to the assertion that Pacheco has tried
to communicate with Fortin, Pacheco testified that, before the
evaluation, she had not tried to speak with Fortin about any
perceived problem with communication. (2:307–308.) Later in
the trial she seeks to say that her earlier reference to manage-
ment did not include her respecting a communication problem.
(19:3298, 3205.) That does not get around her earlier testi-
mony in which she clearly states that, before the evaluation, she
had not spoken with Fortin about any problems with communi-
cation. (2:307.)
Pacheco’s rating of Fortin on this topic of Communication is
largely an extension of the rating on Quantity in that Pacheco is
blaming Fortin for having low production. Pacheco then
blames Fortin for not telling her what her problem is (one won-
ders what the supervisor’s job is) so that Pacheco can help
Fortin solve her production problem. (19:3206–3209, 3256,
3261, 3294–3295.)
It just so happens that, not long after the August evaluations,
Pacheco threw out the telephone (ACD) records. (2:187, 190,
312.) Thus, they were not available for inspection at trial.
(2:187.) Actually, as Pacheco admits (2:316), she did not re-
view the ACD records before the three supposed counselings
beginning about November 1993, but relied on her memory of
the daily reports shown on the ACD computer screen. In view
of that admission, it seems quite likely that she also relied on
her memory for the assertedly low production after Fortin be-
gan handling the Metro Dade account in March 1994.
In fact, as I find, there was no low productivity by Fortin at
any time. And as Fortin has credibly described, the problem
with communication between Pacheco and Fortin arose only
after Fortin presented her subpena to Jenkins on May 31. After
that, Pacheco abandoned her old family friend and began treat-
ing Fortin coldly. A grade of 1 for Communication was indeed
earned, but by Pacheco rather than by Fortin. Thus it is, as with
the law of Moses (Dt. 19:18–19), that which Pacheco assigned
for Fortin is really her own grade for both communication and
credibility.
There is no specific counterpart on the old form, but under
Job Knowledge on the old form is an element which provides,
“Asks questions when necessary.” That element ties closely to
the matter here stressing communication with the supervisor.
In 1989 Pacheco gave Fortin the equivalent of a 4 for Job
Knowledge. Absent the discrimination here by Pacheco and
Bassett, that is the rating which, I find, Fortin would have been
awarded on August 3, 1994—a 4.
The next category is Relationships With Others, and here
Pacheco gave Fortin a 3, commenting, “You are operating at
standard. I do not receive complaints from customers.” For the
equivalent category in 1989, Human Relations, Pacheco gave
Fortin an “above standard,” or, if effect, a 4. Absent the dis-
crimination here, that is, I find, the rating which Pacheco would
have given Fortin in August 1994.
The last item in the I.B. group is that of Punctuality and At-
tendance. For this category Pacheco gave Fortin a 1, showing
that Fortin had been absent 9 days during the past 12 months.
Pacheco wrote, “You are below standard. 9 days out, no matter
what the reason, is not acceptable. You must work on this.”
There is no category for attendance on the old form. There is
one for punctuality, but it covers being at the work station on
time at the beginning of the day and after breaks. Absences, as
such, are not covered. The evidence does not address this cate-
gory. Although Pacheco’s language of no excuse for missing 9
days seems unnatural, as it fails to allow for a major problem
such as a broken leg, there is nothing in the record to match
against this particular rating. Although I suspect that it is a bit
of overkill, motivated by unlawful animus, and that an honest
rating would have been no less than a 2, I am constrained to
pass to the next topic.
The next group is II,A. Overall Evaluation. As earlier men-
tioned, Pacheco gave Fortin a 2, writing, “Your overall per-
formance indicates improvement required.” Under II,B. Poten-
tial Ability, Pacheco checked the third box down of “Properly
placed,” rather than the top box of “Promotable now” or the
second box of “Promotable with additional training and experi-
ence.” The last box, “Not properly placed,” suggests that a
demotion is in order. For comments under this II,B., Pacheco
wrote, “But need to work harder in sharing the work load with
Eddy.” [Note that Pacheco wrote nothing here, or anywhere, of
a need for Fortin to be at her desk and answer the telephone so
that Fortin could restore the sales volume lost in July on MDA.]
Pacheco offers no explanation, either on the form or at trial, as
to how Fortin, having pleased the top management by bringing
the MDA sales volume back to a desired level, was expected to
keep doing that plus, beginning in July, shoulder some of
Leeds’ work in doing look-ups. Bassett also offers no explana-
tion. The answer, I find, was simply to load Fortin down with
more work so as to give cause for criticizing her in this very
evaluation. In short, I find that the negative comments by
Pacheco were the result of the unlawful motivation displayed
by her and by Bassett.
Before making my concluding discussion about the overall
rating, I pass to the next topic of III. Development Guide. In

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 720
her comments there, Pacheco advises Fortin to check in with
her at least once a day for the next 30 days “and we will work
together to improve your performance and our relationship.”
For the next topic Pacheco writes that she has known Fortin for
16 years and supervised her for 8 years. For item V. Reviewer,
I already have noted that Bassett writes that he has reviewed the
document before the review session and that he concurs.
(23:4049.)
The final section, in time sequence, is item VI. Employee
(Employee’s comments and acknowledgment.) In this section
Fortin wrote, “I believe that there was a misunderstanding be-
tween Luisa and I. I believe that now that we have talked,
things will be better and things will improve.” Pacheco admits
that she did not read this, and testified that Fortin did not ex-
press this thought at their interview. (2:324.) On this point, I
accept Pacheco’s testimony. It fits with the humble image
which Fortin projected as a witness. Indeed, Fortin testified
that she said nothing because she wanted to keep her job.
(8:1371.)
(d) Olson directly involved
Return now to the overall rating. While I have stressed the
role of Pacheco and Bassett, there is one other person who, I
find, played a behind-the-scenes role. That person was Chair-
man Rollance E. “Rollie” Olson. Although Bassett sought to
downplay the Olson connection in May when knowledge was
gained about union activity, I do not credit Bassett and his con-
venient lapses in recall as to what Olson said in their conversa-
tions. See, for example, 22:3869, 22:3872. Indeed, I find it
most likely that, contrary to Bassett’s testimony about selecting
the attorney (20:3569; 22:3868), that it was Olson who selected
the attorney. Keep in mind that, although Olson’s primary
office is in Roanoke, Virginia, he also maintains an office in
Miami. (22:3868.) In this connection, I note that it was Olson
who arranged for Margarita Prieto to verify the translation of
the videotapes. (17:2713.) As Vice President Mark Noble
informs us, the Union’s organizing drive was mentioned at the
weekly staff meetings which President Al Woods held with his
top executive staff. Conveniently, Noble recalls very little
about what was said concerning the Union because the meet-
ings were “functional.” (17:2736–2737, 2821–2822.) I do not
believe Noble, and I find that he recalls very well the specific
nature of the frequent discussions that were held about the Un-
ion’s organizing campaign. Chairman Olson generally attended
such staff meetings. (17:2819.) From these weekly meetings,
and other reports coming to him in his position as a major
owner of the company, Olson, I find, maintained an intense
interest and oversight concerning the Union’s organizing drive
at Miami.
Moreover, when Olson saw Fortin walk into the Core De-
partment before work, as I have found, it was Olson who, rather
than simply having Jenkins investigate the matter, directed
Jenkins to issue a disciplinary warning to Fortin. I make that
finding based on the fact that Olson told Jenkins about the mat-
ter (18:2868, 2956, Jenkins) and Jenkins then prepared the
warning before even meeting with Fortin. (18:2957.) More-
over, as I also have found, the time of the incident was fraudu-
lently manipulated to place Fortin there at the 7:30 a.m. start of
the shift rather than the actual time of about 7:10 a.m. I find
that Olson was personally involved in that fraudulent shifting of
the time, and that he approved it in order that a formal warning
could be placed in her personnel file as the basis for her later
termination.
(e) Conclusions
In light of these findings about the personal involvement of
Chairman Olson respecting the Union matters, and specifically
as to Vivian Fortin, I further find that when Bassett conferred
with Pacheco it was for the purpose of assuring that the cate-
gory point ratings and the overall point rating were low. I find
that before meeting with Pacheco, Bassett had conferred with
Olson. Thus, I find Olson was intimately involved with the
plan to give Fortin a low rating, and that this was done for the
dual purpose of (1) retaliating against Fortin because she be-
trayed management’s trust by supporting the Union, and (2)
laying the fraudulent groundwork to get rid of Fortin as soon as
possible.
In short, I find that Fortin’s August 3, 1994 job performance
evaluation, with its overall rating of 2, was a fraud based on the
unlawful motivation of antiunion animus. Top management’s
animus against the Union is so virulent that it resorted to slan-
dering this good and dedicated worker, 14 a worker who “cheer-
fully volunteered” (23:3994, Bassett) when anything needed to
be done, in order to industrially destroy her for supporting the
Union. But as the prophet warns (Hosea 8:7):

When they sow the wind, they shall reap the whirl-
wind.

Absent the unlawful discrimination against Fortin, she would
have received, consistent with the evidence here and her 1989
evaluation, an overall rating of 4. I so find. Finding merit to
complaint paragraph 15, I find that PDI, as alleged, has violated
Section 8(a)(3) and (1) of the Act by issuing the unfavorable
evaluation of August 3, 1994. I shall order that PDI revoke the
tainted evaluation of August 1994, and mark its records for her
as being deemed to have received, on her August 1994 per-
formance evaluation, an overall rating of 4.
g. Vivian Fortin laid off October 27, 1994
(1) Introduction
Following Fortin’s August 3, 1994 performance evaluation,
and as earlier noted in the section on Background, PDI laid off
25 Miami warehouse employees in August. Of these ware-
house employees laid off, 12 were named in an unfair labor
practice charge (RX 49) which NLRB Region 12 subsequently
dismissed. (24:4107.) The 12 are among the 13 named in
complaint paragraph 17 as having been laid off August 10 in
violation of Section 8(a)(5.) Bassett testified that the August
layoff was part of his cost reduction plan. (24:4154.) As I
mentioned earlier, in footnote 9, the complaint does not allege
that PDI was unlawfully motivated in making either its August
or October layoffs.

14 Or to use management’s own glowing terms, this “valued”
(18:2988, Jenkins), “exemplary” (18:2991, Jenkins), and “excellent”
employee (20:3538, 3562; 22:3906, Bassett) who was an “asset”
(23:4083, Bassett) to PDI.

PARTS DEPOT, INC. 721
As I earlier mentioned when describing PDI’s operations and
senior management, in September 1994 President Al Woods,
restructuring PDI’s managerial format from geographical to
functional, appointed Mark Noble as Vice President of Ware-
house Operations. Assertedly unhappy that PDI was below the
industry’s standard for productivity, Woods (apparently about
September to early October) “mandated” that Noble eliminate
40 persons from the payroll, 10 from the support staff in Roa-
noke and 30 from Noble’s distribution centers. (17:2737–
2738.) Respecting the 30, Noble, after comparing production
numbers (Miami was at the bottom for PDI), decided that Mi-
ami’s share of the 30 would be 9. (17:2740.) In the end, Noble
testified, he failed to reach the 30, laying off a total of only 28.
(17:2741.)
In Noble’s view, Miami was overstaffed with administrative
or clerical employees, and he decided to eliminate the 9 from
that group. (17:2745, 2801.) Because Miami had no distribu-
tion manager at the time, Noble personally handled the layoffs
there. (17:2739–2740.) Respecting Miami, at some point,
Noble prepared a computer spreadsheet. (17:2748.) The
spreadsheet (RX 31) has 26 names in rows down the single
page, and 12 columns across for data such as Name, Job Title,
and such. From this pool of 26 clericals, Noble would select 9
for layoff. Whether Noble prepared the spreadsheet, or work-
sheet, before he decided on the number of 9, or after, is unclear.
But it is clear that he used the worksheet extensively in select-
ing the 9 from the 26. (17:2748–2749.)
The 12 columns across are designated: Employee Name, Job
Title [not job descriptions, but payroll classifications, 17:2794],
Dept., B/L [bilingual, 17:2749, 2753], YTD Tardy, YTD Ab-
sent [since start of fiscal year on November 26, 1993; 17:2751],
DOH [date of hire, 17:2750], DOB [date of birth, 17:2750], Job
Status [the only entry in this column is the abbreviation “elim”
in the row for each of the 9 to be laid off], Comments [only a
handful of comments, including fact that two of the nine had
recently quit and should not be replaced], and Pay Rate. With
the two recent quits, Noble testified, he needed to lay off only
7. (17:2754.) About October 27 (8:1313; 11:1727; 17:2775)
Noble laid off these 7:Beverly Fields, Vivian Fortin, Norma
Gonzalez, Mary Mack, Magdalena Sierra, Annia Vigos, and
Emily Woods.
Included among the 26 “file clerk,” “office clerk,” “clerk,”
and other clerical categories which Noble listed on his spread-
sheet, 10 employees, including Fortin, are shown with the job
title of “phone sales” and in the department of “sales.” Of these
10, only Fortin and Michelle Sanchez (who quit just before the
layoff) were rated as a 2. Six (G.D. Jordan, Edward Leeds,
Sara Mitchell, Ana Paredes, Virginia Randle, and Linda Shin-
gles) are shown as 3s. The phone sales group had one 4 (Eve-
lyn Peeler) and one 5 (Diane Hinton.)
(2) Noble’s layoff methodology
To select those for layoff, Noble adopted primary and secon-
dary criteria. The primary factor was job performance.
(17:2745, 2788, 2798.) Secondary criteria, as determined by
Noble, were attendance, cross training, and longevity.
(17:2745, 2765, 2788–2789, 2798.) Despite the fact that Noble
has a column to show bilingual ability, Noble, at trial, seems to
downplay this as a secondary factor, testifying that it would be
a factor if it would affect the job the person had. (17:2793–
2794.)
Because the last performance evaluations were recent, hav-
ing been done in August, Noble simply looked at the August
1994 overall ratings. (17:2746–2749, 2750, 2764.) As noted,
the worksheet column for “P/R” is for this factor, and in that
column appears the numbers reflecting each employee’s overall
rating from the August evaluations. Of the 22 employees
named on the worksheet who have ratings [3 of the 26 do not
(but they are a quit and two recent hires)], and not counting the
2 of Michelle Sanchez, a recent quit, the overall ratings are
distributed as follows:two were rated as a 5; five were rated as
a 4; eleven as a 3; and four (including Fortin) as a 2.
To reach his needed number of 7, Noble first targeted those
with an overall rating of 2. (17:2766–2774, 2777, 2803.) That
would have given him four for layoff (Fields, Fortin, Mack, and
Zenaida Requejo), but because there was no one else who knew
how to handle the export work being done by Requejo, Noble
passed over Requejo. (17:2777–2778.) To the three 2s who
were selected, and laid off (17:2776-2770), Noble moved to the
3s, selecting Norma Gonzalez, Annia Vigos, and Emily Woods.
(17:2771–2774.) Magdelena Sierra was the seventh person laid
off. Rehired in June 1994, Sierra had no recent performance
evaluation, and Noble put heavy emphasis on the brevity of her
recent date of rehire. (17:2752, 2771.) Although the reception-
ist, Zaida Rodriguez, had just been hired in May, only 5 months
earlier, Noble passed over Rodriguez because she was “doing a
good job” and because the receptionist position is a “very diffi-
cult position to fill,” and because Rodriguez was the only re-
ceptionist at the Miami facility. (17:2718–2719, 2816–2817.)
According to Noble, with limited exception, he did not know
whether any of the seven laid off were for or against the Union
(17:2770–2774), and, when making his selection decision, un-
ion considerations played no part. (17:2765, 2787–2788.) The
exceptions are Beverly Fields, who Noble overheard loudly
telling Pacheco and others that she was not for the Union
(17:2766–2767, 2786, 2827), and Vivian Fortin. As to Fortin,
although testifying that he did not know whether Fortin sup-
ported the Union (17:2769, 2788, 2804), and after initially de-
nying that he ever overheard any remarks that she did
(17:2788), finally conceded, during the Government’s cross
examination, that he had stated in his pretrial affidavit
(17:2806–2807) (emphasis added):

Indirectly I was aware of Fortin’s prior Union involved
[involvement], and indirectly through hearsay I may have
heard about her Union involvement.

At trial Noble stresses the “may have” aspect, asserting that
he recalls no specific incident or conversation by which he may
have learned. (17:2806–2808, 2829.)
According to Noble, before he laid off the seven, he did not
consult with anyone in management, including Pacheco, con-
cerning the performance evaluations, or an employee’s abilities,
of those he had selected for layoff. (17:2748, 2791, 2826.)
Noble has no idea whether Pacheco, in preparing Fortin’s
evaluation, was influenced by Fortin’s union activities.
(17:2827.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 722
Noble claims that, although he knew that the Union had filed
unfair labor practice charges, he was not aware of the content
of the charges, and in fact wanted to remain uninvolved so that
he could make his layoff decisions uninfluenced by considera-
tions related to whether someone was a union supporter.
(17:2830–2832.)
(3) Fortin laid off
October 27, 1994, a Thursday, was Fortin’s last day at PDI.
On that day Fortin was called into the office (Jenkins’ former
office) where Vice President Noble, after telling Fortin to “Sit
down,” informed Fortin, “We’re letting you go because you
have a low work performance.” Fortin said that if he was not
happy with the work she was doing in “that” position, to return
her to taking orders in the phone room. Fortin told Noble that
she had been at PDI nearly 10 years, and that she spoke both
English and Spanish. Noble replied that such was irrelevant,
that it was just that her work performance was low. Fortin said
“Okay,” and left. (8:1313–1315, Fortin.)
Noble recalls that Fortin was “particularly disturbed” by her
layoff, and that she said that she had done her best, and that it
was not fair for her to be laid off. Noble told her that he was
not accusing her of failing to do her best, only that in this case
that may not have been adequate.” (17:2775.)
As I discuss below, I generally do not credit Noble, whereas
I do credit Fortin. However, as Noble’s account of the layoff
interview is not inconsistent with Fortin’s version, I accept the
foregoing description by Noble as supplementing the account
given by Fortin.
According to Noble, he laid off Fortin because her perform-
ance rating was a 2. (17:2767, 2790.) Noble was returning the
MDA business, which had fallen off, to the regular customer
service function. The catalog look-up work, that Fortin also
did, also would be handled, under Noble’s restructuring, by the
phone room personnel. With those two functions (Metro Dade
and catalog look-up) being merged into the phone room,
Fortin’s job was eliminated. With her performance rating of 2,
Noble did not consider moving Fortin to another position and
retraining her. (17:2767–2769, 2790.) The phone room group,
from which none were laid off other than Fortin (17:2812; RX
31), was handling the incoming calls adequately (17:2812.)
Moreover, (17:2776–2777, 2814–2815) Noble did not want to
displace anyone in the phone room [to move in Fortin] because
that person typically would have a “following” of customers,
whereas Fortin, who had been absent from the phone room for
about a year (as he understood the performance evaluation)
would no longer have a following. Noble concedes (17:2816),
however, that he does not know whether anyone in the phone
room actually had a following. Although Noble testified that
Fortin “wasn’t working in the phone room” (17:2811), that
would have reference only to her location. Noble’s own chart
(RX 31) lists Fortin and nine others as part of “phone sales.”
And Pacheco testified that Fortin was the only one laid off from
phone sales. (2:250–251.) Finally, the separation document
(GCX 141) prepared by PDI lists her as “phone room clerk.”
Noble also looked at Fortin’s attendance record, and he con-
sidered her 13 absences as substantial. (17:2790–2791.) Al-
though Noble knew that Fortin spoke Spanish [Fortin testified
that she is fluent in Spanish, 8:13770], and that some of the
customers speak Spanish (17:2808, 2811), Noble saw no reason
to investigate about the number of calls coming in from Span-
ish-speaking customers because the “core” group in the phone
room were handling incoming calls “adequately.” (17:2812–
2813.) Noble also, in Fortin’s case, did not look at her file at
all, or to look at the jobs for which she was cross trained, be-
cause her 2 rating eliminated the need to do so. (17:2798–
2799, 2808.) Finally, Noble testified that he would have laid
off Fortin even had she been rated as a 3. He did not know
where she would have been laid off had her overall rating been
a 4. However, had she been rated as a 4, he would have inves-
tigated to see whether “something could have been done.”
(17:2776, 2813–2814.) To Noble, a rating of 4 is “superior.”
(17:2772.)
(4) Discussion
(a) Contentions
Although arguing that Noble should not be credited, the
General Counsel further argues (Brief at 123) that, but for
Fortin’s unlawful performance evaluation, she would not have
been laid off. This seems to assume the Union’s argument
(Brief at 24) that, absent discrimination, Fortin’s August 3,
1994 overall performance rating would have been a 4. It fur-
ther assumes, without benefit of case citation, that the improper
motive for the performance evaluation would be imputed to
Vice President Noble.
As noted earlier, other than Fortin (and Michelle Sanchez,
who quit just before the layoff), none of the phone sales per-
sonnel were among those laid off in October 1994. (2:250–
251, Pacheco; RX 31.) This is so despite the fact that six of
them were rated as 3s. One of the 3s was Virginia Randle who,
Bassett testified, had not been able to keep the MDA sales from
dropping substantially while she handled both MDA and her
regular phone room calls. (This is not a criticism of Randle.
Bassett testified, as earlier described, that the function needed
to be separated to be successful. Nevertheless, it is Fortin, not
Randle, who is associated with an image of success.)
If Noble considered Fortin’s absences as high, at 13, then he
surely would have viewed G.D. Jordan’s 14 absences as bad.
Yet Noble retained Jordan, a “3.” (RX 31.) Noble testified that
longevity was one of the secondary factors, yet Edward Leeds,
hired in 1988, was retained, even though Fortin, hired in 1986
as Noble’s worksheet shows, was laid off. (RX 31.) Indeed, of
the six 3s, four (Sara Mitchell, Ana Paredes, Virginia Randle,
and Linda Shingles), besides Leeds, had been there a minimum
of 1 year less time than Fortin. Shingles was not hired until
1993, and Paredes not until 1993, yet each was retained over
Fortin.
Bilingual skills also were a secondary factor, and in this
category, of the six 3s who were retained in phone sales, only
one, Ana Paredes, possessed them. (RX 31.) Even with No-
ble’s effort to downplay bilingual skills as a factor outside of a
job calling for such (17:2793–2794), Noble at least concedes
that some of the incoming phone calls are in Spanish (17:2808,
2811.) Under Noble’s system then, and even if considered only
as a cross training skill rather than as an immediate plus for a

PARTS DEPOT, INC. 723
phone sales representative, bilingualism still would be a posi-
tive factor favoring Fortin’s retention.
As for Noble’s testimony about a following, no objective
evidence supports his statements. On the other hand there is no
specific evidence showing that Noble was aware that Fortin, as
described by Bassett (20:3538), had a major following on cata-
log look-ups, or, as described by Carlos A. DeLascagigas
(24:4180–4186, 4192–4193), that customers would take parts to
her for matching. Indeed, Fortin is known so well in the auto
parts industry that her case against PDI has been a topic of
discussion in the local industry. (24:4190.) Moreover, recall
Fortin’s testimony that most of those in the phone room merely
take orders by telephone, whereas she and one other employee
also did look-ups. (8:1316; 9:1485–1486.) Thus, it was likely
that the two persons skilled in look-ups would be the ones with
a following, not mere order takers.
Finally, in light of the foregoing, the Union contends (Brief
at 27) that Noble’s refusal to admit he would have retained
Fortin if her overall rating had been a 4 “contradicts his testi-
mony about the predominance of the written evaluation in his
decision. It is starkly inconsistent with retaining six phone
room employees and Eddie Leeds who received a ‘3’. Noble
answered as he did because he wished to protect PDI’s case
even though anti-union animus determined the evaluation of
Fortin.” I agree.
PDI contends that the General Counsel has shown no dispar-
ity in treatment of Fortin, and no “knowledge” on the part of
Noble, who was the decisionmaker. Moreover, even if the
Government established a prima facie case, PDI demonstrated
that it would have laid off Vivian Fortin for legitimate business
reasons. (Brief at 71-78.)
(b) Analysis and conclusions
As already mentioned, I do not credit Vice President Mark
Noble. His demeanor was unpersuasive, and I do not believe
him as a witness. His denials notwithstanding, I find that Noble
did have discussions with management before he made his
October 1994 layoff selections. Indeed, I find that the inclusion
of Vivian Fortin in that layoff was not an independent event,
but a result implemented in accordance with a central plan de-
vised at the highest levels of PDI’s corporate hierarchy. Spe-
cifically, I find that Noble was merely implementing a plan
either devised or approved by Chairman Rollance E. “Rollie”
Olson in order to get rid of her because, in supporting the Un-
ion, she had betrayed the “trust” which top management, par-
ticularly Division President Peter Bassett, had placed in Fortin.
Contrary to Bassett’s testimony, and as I have found, Bassett
coordinated everything with Olson from the very beginning of
word that employees were signing union cards. The oral warn-
ings by Jenkins, which began the very afternoon after Fortin
returned from the scheduled representation hearing of June 1,
was part of a central plan, devised by Bassett and Olson, to lay
the paper groundwork to get rid of Fortin.
When Olson observed Fortin pass his office well before the
start of the 7:30 a.m. shift, he followed her to the Core Depart-
ment where she asked Casco for a ride home after work that
afternoon. As I have found, the written warning which fol-
lowed fraudulently moved the time from 7:10 a.m. to 7:30 a.m.
in order to tag Fortin as having gone to speak to Casco during
working time. This fraud was done, as I have found, with Ol-
son’s blessing. Because of the evidence showing Olson’s direct
involvement in the case, I draw an adverse inference from the
fact that he did not appear and testify both as to this written
warning, to Fortin’s inclusion in the October 1994 layoffs, and
as to his conversations with top management, including Vice
President Noble, concerning Fortin’s inclusion in that layoff.
Ready Mixed Concrete v. NLRB, 81 F.3d 1546, 1552 (10th Cir.
1996.)
Fortin’s August 3, 1994 performance evaluation, an addi-
tional fraud, as I also have found, moved her closer to an indus-
trial firing squad. The stage was now set for Fortin’s industrial
execution, and all that was needed was the occasion. That oc-
casion came in the nature of the October 27, 1994 layoffs.
Noble, I find, was instructed by Olson, either directly or
through President Al Woods, to include Fortin in the layoff on
the basis of her overall 2—a 2 that had been planted by Olson
and Bassett for just this purpose, the way that an employer
might frame a worker by planting false evidence in order to
cause the discharge of an unwanted employee. 15 See South-
west Distributing Co., 301 NLRB 954, 980-984 (1991) (stale
“throw-down” beer planted on driver’s route), and Acme Die
Casting, 309 NLRB 1085, 1152-1153 (1992) (supervisor falsi-
fied production rates), enfd. except remanded as to unrelated
issue, 26 F.3d 162, 146 LRRM 2736 (D.C. Cir. 1994.)
With these findings of animus and fraud leading up to the
October layoffs, PDI would be responsible for the unlawful
motivation, which resulted in Fortin’s overall 2, and for her
inclusion in the layoff, even if Vice President Noble had not
been part of the scheme. The tainted August 3, 1994 evaluation
would bind PDI in the layoff of Fortin regardless of Noble’s
personal innocence. This is so, as the courts have phrased it, to
prevent a company from “laundering” a “bad” motive by pass-
ing the decision, on planted evidence, to a third manager out-
side the conspiracy loop. See Grand Rapids Die Casting Corp.
v. NLRB, 831 F.2d 112, 117 (6th Cir. 1987), citing and quoting
from Boston Mutual Life Insurance Co. v. NLRB, 692 F.2d 169,
171, 111 LRRM 2983, 2985 (1st Cir. 1982); Springfield Air
Center, 311 NLRB 1151 (1993.)
Although that result obtains even if Vice President Noble
had no knowledge and no unlawful motive, I find that he had
both. As to knowledge, in view of Noble’s admissions that he
“might have heard” that Fortin supported the Union, in light of
the other evidence, and because I specifically disbelieve his
denial of knowledge, I find that he did know of Fortin’s support
of the Union. Ready Mixed Concrete Co. v. NLRB, 81 F.3d
1546, 1552 (10th Cir. 1996 (“might have heard”.)
In finding that Noble personally shared the unlawful motive,
I find that he exercised all options against Fortin, giving her no

15 “In Salt Lake, Joe, by God,” says I,
Him standing by my bed,
“They framed you on a murder charge.”
Says Joe, “But I ain’t dead.”
Says Joe, “But I ain’t dead.”
Earl Robinson and Alfred Hayes, Joe Hill, verse 2 (1925, 1938.)
Edith Fowke & Joe Glazer, Songs of Work and Protest 20 (1973, Dover
Publications.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 724
credit for her job skills (I disbelieve his testimony that he did
not know what her file contained and that he did not confer
with Bassett and other management), her bilingual ability, or
her longevity. This, coupled with his knowledge, as I find, that
Fortin’s August 1994 evaluation had been rigged to drop her
from a 4 to a 2, seals Noble’s motive in an envelope of unlaw-
fulness. I further find that, as Fortin would have received an
overall 4, absent the unlawful retaliation against her, she would
not have been laid off. Instead, one of those with a 3 rating, if
anyone, would have been selected for layoff.
As if lions attacking some hapless wildebeest on the Seren-
geti Plain, PDI’s corporate lions, as is done all too often on
America’s industrial Serengeti, just as surely devoured Vivian
Fortin. Fortin’s courage in the face of the unlawful attack calls
to mind the refrain from Woody Guthrie’s 1940 song, Union
Maid:

Oh, you can’t scare me, I’m sticking to the union. I’m
sticking to the union, I’m sticking to the union. Oh, you
can’t scare me, I’m sticking to the union, I’m sticking to
the union till the day I die.

Edith Fowke and Joe Glazer, Songs of Work and Protest 17-
19 (1973, Dover Publications.)
As alleged in complaint paragraph 16, in conjunction with
paragraph 25, I find that PDI violated Section 8(a)(3) of the Act
when it laid off Vivian Fortin on October 27, 1994. I shall
order PDI to offer Fortin reinstatement to the position in phone
sales it would have given her had there been no discrimination,
and that it make her whole, with interest.
G. The Requested Bargaining Order
1. Introduction
By complaint paragraph 21, the Government requests a bar-
gaining order. As is reflected in the General Counsel’s brief
(Brief at 132), that request is based on the Supreme Court’s
opinion in National Labor Relations Board v. Gissel Packing
Co., 395 U.S. 575, (1969.) Gissel confirms the Board’s author-
ity to issue a bargaining order, even when the Union (as here)
lost the election, in two situations. The first one, or Category 1,
covers cases marked by “outrageous” and “pervasive” unfair
labor practices the coercive nature of which cannot be elimi-
nated by the application of traditional remedies, with the result
that a fair and reliable election cannot be held. In this category
of cases, the Supreme Court approved the Board’s issuance of a
bargaining order even though the union has never obtained a
majority showing. Gissel, 395 U.S. at 614. After Gissel, how-
ever, the Board decided that it no longer would issue bargaining
orders in the absence of a majority showing. Gourmet Foods,
270 NLRB 578 (1984.) And see Fieldcrest Cannon, 318
NLRB 470, 474 fn. 8 (1995), modified on other point, 153
LRRM 2617 (4th Cir. 1996.) As a practical matter, therefore,
the former Category 1 violations have been merged into Cate-
gory 2 as a type of informal subset of the latter.
Second, falling into what is known as Category 2 cases are
those situations where, at one point, the union has established
majority support and the unfair labor practices, although less
severe and pervasive than those in Category 1, nonetheless still
have the tendency to undermine majority status and impede the
election processes. In fashioning a remedy for Category 2
cases, the Board may properly take into consideration the ex-
tensiveness of an employer’s unfair labor practices in terms of
their past effect on election conditions and the likelihood of
their recurrence in the future. If the Board finds the possibility
of erasing the effects of past practices and of ensuring a fair
election by the use of traditional remedies, though present, is
slight and that employee sentiment once expressed through
cards would, on balance, be better protected by a bargaining
order, then the Board “should issue” that bargaining order.
Gissel, 395 U.S. at 614.
Category 3 cases are those in which the unfair labor practices
are considered “minor” or “less extensive” because of their
“minimal impact on the election machinery.” A bargaining
order is not authorized for Category 3 cases. Gissel, Id at 614.
2. The category here
The requests by the Government and the Union for a bar-
gaining order are based largely on allegations pertaining to the
May-June speeches by Peter Bassett—allegations which I have
dismissed. Even assuming the evidence shows that the Union
had achieved majority support based on authorization cards, the
question is whether the violations which I have found show
Category 2 conduct, for which a bargaining order “should”
issue, or Category 3 conduct, for which a bargaining order is
not authorized.
The several violations I have found consist of the mid-May
interrogation of Vivian Fortin by Division President Peter Bas-
sett, and, at the same time, Bassett’s offer to improve working
conditions for employees if they withdrew their support for the
Union. [Complaint paragraphs 5(a) and 5(c.)] These are viola-
tions of Section 8(a)(1) of the Act. Additional violations found
are the May 20 posting [a new practice] of a promotional op-
portunity into management, 16 Fleet Supervisor Robert Wil-
liamson’s mid-May coercive restraint of Ronald Casco [com-
plaint paragraph 6(a)], his June 22 imposition of a no-access
rule on Ronald Casco on June 22 [complaint paragraph 6(c)],
and his coercive interrogation of Albert Rosado on June 29
[complaint paragraph 6(b)], plus Office Manager Pacheco’s
June 20 threat of unspecified reprisals against driver Jose Cas-
tro [complaint paragraph 7], give a total of seven Section
8(a)(1) preelection violations.
The preelection violations of Section 8(a)(3) consist of the
May 20 posting of a supervisory opportunity [complaint para-
graph 12, as already noted] and the two warnings in June 1994
to Vivian Fortin [complaint paragraph 13].
Postelection unfair labor practices, as found, are violations of
Section 8(a)(3), and consist of the July-September 1994 wage
increases [complaint paragraph 14], the tainted performance
evaluation given to Vivian Fortin on August 3, 1994 [complaint
paragraph 15], and [complaint paragraph 16] PDI’s unlawful
layoff of Fortin on October 27, 1994. That makes three
preelection violations of Section 8(a)(3) and three (counting all
the general and the individual wage increases as a single item)
postelection violations of Section 8(a)(3) of the Act. Keep in

16 Complaint paragraphs 5(f) [Section 8(a)(1) violation] and 12 [Sec-
tion 8(a)(3) violation].

PARTS DEPOT, INC. 725
mind that, beginning with Vivian Fortin’s interview by the
Miami Herald reporter on June 1, the newspaper’s coverage
(GCX 22) the next day, quoting Fortin by name (an article ad-
mits reading the day it was published), Fortin’s handwritten
memo (GCX 23) distributed to the second facility, in Broward
county, and her status as one of the Union’s two election ob-
servers (Ronald Casco, the other observer, was among those
laid off in August) Fortin had become the most prominent sym-
bol of the Union’s organizing campaign following the June 2
article, naming and quoting her, in the Miami Herald.
Because of Fortin’s position of prominence, the discrimina-
tion against her would tend to undercut the Union’s support
among the other employees. However, there is no evidence
that other employees were made aware of the June warnings to
Fortin, or told of the tainted August 3 evaluation. As there is
evidence that the local auto parts industry in the Miami area
was aware of Fortin’s layoff and her case against PDI, I infer,
and find, that the allegations concerning the nature of her Octo-
ber 27, 1994 layoff were know to and discussed by the employ-
ees at PDI.
The violations here, I find, are Category 2. In addition to the
several instances of 8(a)(1) violations (some of which were
made by the highest ranking official in Florida, Division Presi-
dent Peter Bassett), the general wage increase to the entire bar-
gaining unit, plus individual merit increases that followed, can-
not be undone. It removes one of the principal benefits em-
ployees seek through representation. The postelection wage
increases here leave the bargaining unit with the image of an
employer who will accommodate their desires if they just tell
the Union to go away. Thus, the wage increases plus the elimi-
nation of Fortin serve as a powerful combination punch effec-
tively knocking out any future organizing.
The discrimination against Vivian Fortin, the symbol of the
Union’s organizing campaign, reinforces the chilling effect of
the wage increases and other violations. Fortin’s layoff espe-
cially tends to freeze any urge of other employees to support
the Union. Fortin’s layoff and her case against PDI were a
topic of discussion in the local auto parts industry and, as I have
inferred, likewise discussed by bargaining unit employees.
Finally, although Peter Bassett is no longer with PDI,
Chairman Rollance E. “Rollie” Olson, a major owner of PDI,
and Vice President Mark Noble (as of the trial) still are. Abso-
lutely nothing suggests that these corporate officials are likely
to change their animus against the Union. That being so,
merely ordering another election (plus issuing a cease and de-
sist order and requiring that a notice be posted) would be a
futile remedy, for the animus at Regional Director flows from
the top down. It is not possible to erase the effects of the viola-
tions here. On balance, the employee sentiment expressed in
the authorization cards would be best protected by a bargaining
order. I turn now to ascertain whether the Union ever enjoyed
majority support.
3. The card majority
a. Introduction
Although the Union does not address the card count, the
General Counsel and PDI are in near agreement on the number
of bargaining unit employees, with the General Counsel putting
the number at 102 (Brief at 129) and PDI (Brief at 84) fixing
the count at 101. The one difference appears to be Margarita
Hernandez. The Excelsior list 17 (GCX 5), with its 94 names,
does not include the name of Margarita Hernandez, nor is hers
one of the stipulated names. Even so, the General Counsel
contends (Brief at 130 fn. 46) that Hernandez should be
counted as a member of the unit because PDI did not show that
she was not in the unit. This argument is based on the further
contention that, as the party seeking to exclude an employee,
PDI has the burden to show that the employee (Hernandez) is
not eligible. The General Counsel cites no authority for this
proposition. Sub silentio the General Counsel may be relying
on the principle that a party seeking to exclude an individual
from voting has the burden of establishing ineligibility. Golden
Fan Inn, 281 NLRB 226, 230 fn. 24 (1986.) But that rule ap-
plies when the individual’s name is already on the voting list
and a party challenges his ballot. Here the burden is on the
party seeking to add a name to the list of eligible voters or,
actually, to the bargaining unit. That party is the General
Counsel, not PDI, and the Government’s first burden is to show
that Hernandez was a PDI employee.
Margarita Hernandez signed an authorization card, dated
May 12, 1994. (GCX 12–23.) Hernandez did not testify, and
Vivian Fortin testified as the authenticating witness. (8:1376;
9:1441–1447, 1527–1531.) As Hernandez came to Fortin at
work, obtained a card from Fortin, returned it to Fortin a day or
two later at work, and signed the card in Fortin’s presence at
work, the implication is that Hernandez was an employee at
PDI. The completed portion of the card shows, by hearsay, that
Hernandez, as of May 1994, was working for PDI as a clerk in
the computer room. I also note that the name of Margarita
Hernandez appears on Vice President Noble’s worksheet (RX
31) as a data processing clerk who quit shortly before the Octo-
ber layoffs. (17:2756, 2769.) Finally, the latest (GCX 73) of
two W-4 forms in evidence for a Margarita Hernandez has, I
find, the signature of the same person who signed the authoriza-
tion card (GCX 12–23), with the address being the same on
both documents, as is the social security number.
I draw three conclusions from the foregoing. First, there is
sufficient evidence to find, as I do, that a Margarita Hernandez
worked during the relevant time at PDI as a data processing
clerk, not as an office clerical, that she was a member of the
bargaining unit, and that the authorization card (GCX 12–23) is
hers. With the name of Margarita Hernandez thus added to the
bargaining unit, I find that the total number of bargaining unit
employees, at the relevant time, was 102. For the relevant time,
in determining the total number, I turn to the payroll eligibility
cutoff date as set by the stipulated election agreement (GCX
17) approved June 3. That cutoff date was May 27, 1994.
(5:762.) [Actually, that a signer entered the unit after the cutoff
date for election eligibility or was omitted from the voting list
does not negate his card. Waste Management of Utah, 310
NLRB 883, 910 (1993.)]

17 The list of eligible voters. Excelsior Underwear, 156 NLRB 1236
(1966.) See Hardin, 2 The Developing Labor Law 1786 fn. 87 and
1809 fn. 241 (3d ed. 1992, ABA, BNA.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 726
With the bargaining unit comprised of 102 employees, the
General Counsel needs to show that, at one point, the Union, to
demonstrate majority status, had valid cards from 52 employees
of the bargaining unit. Of the 68 cards (GCX 12–1 through 12–
68) which the Government offered in evidence, I received 66
cards and rejected 2 cards. The two rejected cards are those of
Robert Alegria (GCX 12–52) and Barbara Garcia (GCX 12–
56.) If at least 52 of the 66 cards I received are valid cards,
then the evidence demonstrates that the Union had a majority.
If the valid count falls to 51 or fewer, then there is no basis for
a bargaining order.
Record evidence shows that the Union obtained most of the
authorization cards from employee solicitors rather than di-
rectly from individual employees. On brief, PDI does not at-
tack the language of the authorization cards. Respondent con-
tends, however, that many of the cards are invalid because the
signers either did not understand what they were signing, or
there were misrepresentations made, or the cards have incorrect
dates, unidentified handwriting, different colors of ink, or simi-
lar characteristics. PDI specifically attacks the cards of 17
named employees (Brief at 85–89.) That attack is in addition to
PDI’s contention, as discussed much earlier, that all cards
proved up by the handwriting expert, Lillian Newman, and
those which I received based on my own comparison of hand-
writing samples, must be rejected. As for the handwriting
comparisons by Newman and by me, I adhere to my rulings at
trial, as reaffirmed in my order of December 3, 1996 (RX 50),
as I mentioned earlier in this decision when I discussed proce-
dural matters.
For the gist of that order, as it pertains to a judge’s authority
(even duty) for analyzing handwriting samples, I quote the
following paragraph from my order (RX 50 at 2):

A day earlier I inspected several authorization cards
and other documents and compared signatures. FRE
901(b)(3); Advanced Mining Group, 260 NLRB 486, 513
(1982); Ken’s IGA, 259 NLRB 305 fn. 2 (1981), mod. on
other grounds 697 F.2d 798, 112 LRRM 2587 (7th Cir.
1983); G. P. Putnam’s Sons, 226 NLRB 1256, 1268
(1976.) Based on my inspection, I received some cards
and declined to receive others. The purported authoriza-
tion card (GCX 12-52) of Robert Alegria is one of those
which, after comparing signatures, I did not feel comfort-
able enough to receive. (15:2333.) That ruling left the
General Counsel and the Charging Party free to offer other
evidence authenticating Alegria’s purported card.

To the cases cited, I would add Waste Management of Utah,
310 NLRB 883, 908 fn. 119 (1993) (ALJ compares card signa-
tures with those on W-4 forms); Bi-Lo, 303 NLRB 749, 770 fn.
40 (1991), enfd. granted sub nom. NLRB v. So-Lo Foods, Inc.,
985 F.2d 123, 142 LRRM 2384 (4th Cir. 1992) (ALJ, citing
authority, uses W-4 tax forms as exemplars for comparing sig-
natures on authorization cards); and Justak Bro. & Co., 253
NLRB 1054, 1079 (1981).
Also, from near the end of the order, I quote two further
paragraphs (RX 50 at 5–6):

Finally, PDI’s fourth ground, that I, as the trier of fact,
should not compare the W-4 signatures to the card signa-
tures, is a bit unclear. The argument apparently is meant
to say that the whole process of comparing signatures is
unreliable and should not be used for determining the va-
lidity of authorization cards. PDI must address that argu-
ment to Congress (respecting FRE 901(b)(3)) and to the
Board, for they have authorized the procedure.
Similarly, to the extent Respondent’s fourth ground
can be interpreted to suggest that such a comparison by the
ALJ serves to taint the ALJ as a partisan, or to convert the
judge into a witness favoring the party which benefits
most from his card inspection, I give a similar answer.
Congress and the Board have spoken, and any argument
for change must be directed to one or both of them.
b. The 17 cards specifically attacked by PDI
(1) Applicable law
As to the grounds of PDI’s attack on the cards, and noting
that PDI offers no citation of authorities in support of its con-
tentions, I need not dwell on the evidence. This is so because
Board law, especially as reinforced by the Supreme Court in
Gissel, presumes the validity of cards which (as Here) are un-
ambiguous on their face and where there is no evidence the
purpose of the card was deliberately misrepresented to the
signer. See DTR Industries, 311 NLRB 833, 840 (1993), enf.
denied on other grounds 39 F.3d 106 (6th Cir. 1994.)
Claimed misrepresentations that the cards were to get rid of
then Warehouse Manager Bill Beaman are similar to statements
that (unambiguous) cards are to get an election. As the latter do
not invalidate the unambiguous cards, DTR at 840, neither do
the former.
Respecting questions about the dates on the cards, the Board
presumes that the date reflected is correct absent evidence to
the contrary. Zero Corp., 262 NLRB 495, 499 fn. 14 (1982),
enfd. mem. 112 LRRM 2793 (1st Cir. 1983.) Moreover, only
an approximate date is needed. Waste Management of Utah,
310 NLRB 883, 910 (1993.) And it is immaterial that, without
more, cards may show different handwriting for the dates from
that of the signatures. Multimatic Products, 288 NLRB 1279,
1350 fn. 126 (1988.)
On the subject of employees who do not speak or read Eng-
lish, but instead a foreign language, and where the text of the
printed card is printed in English, there must be additional evi-
dence that the card’s text was explained in a language the
signer understands. NLRB v. Bakers of Paris, 929 F.2d 1427,
(9th Cir. 1991); Justak Bro. & Co., 253 NLRB 1054, 1080
(1981); Maximum Precision Metal Products, 236 NLRB 1417,
1425 (1978.) Where the employees have been made aware of
the purpose of the cards, then the signed cards are valid. Hon-
eycomb Plastics Corp., 288 NLRB 413, 416 (1988); Justak
Bros., id.
Based on the foregoing general principles, it is clear that
PDI’s objections to the specific 17 cards are without merit. I
proceed now to a description of PDI’s contentions and the ap-
plication of these principles to PDI’s arguments respecting the
17 cards.

PARTS DEPOT, INC. 727
(2) Conclusions as to the 17 cards
Two cards, those of Ana Diaz (GCX 12–55) and Leo Be-
launzaran (GCX 12–46), assertedly were signed after the solici-
tor or coworkers told the signer that the purpose of the card was
to get rid of then Warehouse Manager Bill Beaman. This ob-
jection by PDI has no legal merit, and I count the cards as valid.
Albert Rosado credibly testified that he gave a card (GCX
12–50) to Crystal Davis when they were on break, that he saw
her sign it, that he put the card in his pocket without signing as
a witness because he had to resume working, and that he there-
after forgot to sign as a witness. (13:2149–2151, 2166–2167.)
Davis did not testify. Although the date Davis, apparently,
placed on the card shows only a “5,” Rosado testified that the
event occurred the day after the (May 9) meeting with Monica
Russo at the Tip Top Cafe (and therefore May 10, 1994), and
the card was delivered to the Board’s Miami office as reflected
by the May 13, 1994 date stamp on the reverse side of the card
by the NLRB’s Miami office. PDI’s objection of the “suspi-
cious” circumstances (Brief at 86) is without merit, and I count
the card of Crystal Davis as valid.
Roberto Duarte testified that he observed Emilio Mazzu-
cotelli sign and fill out certain portions of GCX 12-42 in May
1994, and that he (Duarte) then filled in the company’s name
and signed as a witness. Duarte then submitted Mazzucotelli’s
card to Monica Russo, the Union’s representative. (12:1887–
1888, 1947–1960, 1976, 1985–1986.) Duarte does not know
who filled in the date section after Mazzucotelli’s name, the
date being “5/94.” (12:1954.) Black ink was used for that date,
and blue ink for the entries by Duarte and a slightly darker blue
ink by Mazzucotelli. The NLRB Miami’s date stamp is not
until May 23, 1995—a year after the Union filed the election
petition. Monica Russo testified that she received Mazzu-
cotelli’s card in May 1994 and that she wrote the word “date,”
with her initials, on the back of the card to reflect the fact that
she had placed the date on the front of the card. (15:2328-
2329, 2348–2349.) PDI’s objections about the date and the
different ink colors having no merit, I count Mazzucotelli’s
card as valid.
As for the 1995 tendering of additional 1994 cards to the
NLRB’s Miami office, Russo credibly testified that she initially
supplied only what was needed to support a showing of interest.
When NLRB Region 12 began an inquiry into whether there
was a majority showing to support a bargaining order, Russo
released the additional cards that had been maintained at the
Union’s office. (6:856; 15:2263–2264, 2275, 2345.)
Roberto Duarte also authenticated the cards of Emily Woods
(GCX 12–37) and Martha Avendano (GCX 12–40.) The card
of Woods was handled very similar to that of Mazzucotelli,
with Russo giving similar testimony. (15:2329–2330, 2344–
2346.) I find Woods’ card to be valid.
PDI complains that Avendano’s card has three different col-
ors of ink (Avendano’s signature is in black, her social security
number is in blue, and so is the name of the employer) and the
date may not be in Avendano’s hand. [NLRB Miami’s date
stamp is for May 13, 1994.] There is no merit to PDI’s objec-
tions, and I count Avendano’s card as valid.
Ronaldo Hernandez was the authenticating witness for the
cards of several employees, including:Enrique Flores (GCX
12–28), Vidal Henriquez (GCX 12–30), and Elio Trujillo (GCX
12–31.) The cards of the three are printed in English. It is
immaterial that neither Hernandez nor any of the three could
read English, for Hernandez (10:1607), in Spanish, told the
group that the purpose of the cards was to get the Union to
represent them with PDI. Two days later Hernandez did the
same with employee Jose Ocampo. (10:1640–1641.) This
objection of PDI has no merit.
PDI also complains that the card of Vidal Henriquez has
strikeovers in a different color of ink for some of the digits in
the social security number. (Brief at 87–88.) This objection is
frivolous and an abuse of the Board’s processes. PDI makes no
contention that the identity of Henriquez (there is only one
Henriquez on the voting list) is in doubt and that the social
security number is needed here to identify Henriquez.
Trujillo’s card (GCX 12–33) has a strikeover on the “4” of
1994. Hernandez testified that Trujillo corrected the year, plus
making a correction on the company’s name. (10:1633–1636.)
The objections are without merit, and I count Trujillos card as
valid.
PDI argues that Jose Ocampo’s card (GCX 12–33) shows the
date of the “4” in 1994 as appearing to be in a different hand.
Disagreeing with that assessment, I count Ocampo’s card (one
of those not delivered to the NLRB at Miami until 1995) as
valid.
The next two cards are those for Isabel Martinez (GCX 12–
21) and Margarita Hernandez (GCX 12–23.) Vivian Fortin is
the authenticating witness. Both cards are printed in English.
PDI’s objection is that neither Martinez nor Hernandez can read
English, and as they took the cards home to discuss with their
husbands (who did not testify), any contention that these two
employees understood the purpose is hearsay.
Another employee had given the card to Martinez, and Mar-
tinez came to Fortin so that Fortin could witness her signature.
(9:1389, 1531.) The General Counsel offers the card based on
an exception to the hearsay rule, that exception being to show
state of mind under FRE 803(3.) (9:1394.) Fortin credibly
testified that Martinez told her that her husband had told her
that “it was all right to sign it if she wanted to bring a Union
into Parts Depot.” Martinez then asked if Fortin would witness
her signature. When Fortin said yes, Martinez signed the card.
(9:1406, 1420, 1535.) As Martinez manifested that her intent in
signing the card was to bring in the Union, PDI’s objections are
without merit, and I count the card of Isabel Martinez as valid.
Although Fortin tendered Margarita Hernandez’ card to her,
the record fails to show that Fortin told her the purpose.
(9:1441–1442.) In answer to Hernandez’ question, Fortin ex-
plained about the Union, told Hernandez that employees were
trying to get a Union into PDI for job security, respect, and
decent wages. At Hernandez’ request, Fortin gave a card to
Hernandez. However, nothing expressly links the card to the
purpose. (9:1441–1446, 1528.) Nevertheless, when Hernandez
returned with the card the next day, she told Fortin that her
husband had told her that if she wanted to get a union in PDI, to
fill out the card and sign it. Fortin testified that the card was
filled out but not signed, and that Hernandez then signed the
card, as did Fortin as the witness. (8:1376; 9:1442, 1531.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 728
Under FRE 803(3), Hernandez’ description of her purpose in
signing reflects her state of mind, as an exception to the hearsay
rule. Finding PDI’s objection to be without merit, I count Mar-
garita Hernandez’ card (GCX 12–23) as valid.
That brings us to the final four cards attacked by PDI: Mar-
tha Perez (GCX 12–13), Cheryl Townsend (GCX 12–14),
Ernest Thomas (GCX 12–15), and Marilyn Davis (GCX 12–
16.) Perez’ card is date stamped at the Board’s Miami office on
May 13, 1994, but the other three bear a date stamp of May 23,
1995. Ronald Casco is the authenticating witness. Copies of
the cards are attached to Casco’s pretrial affidavit (CPX 3) of
September 16, 1994. PDI’s objection here is that Casco did not
sign any of the four cards as a witness. PDI’s additional objec-
tion regarding Perez’ card is that the card is in English. Casco
admits (7:1103–1104) that his discussion with Perez was in
Spanish and that he does not know whether Perez reads Eng-
lish. PDI’s language objection as to the Perez card has no
merit. First, in Spanish Casco explained that the purpose of the
card was to have the Union represent the employees with the
company. (7:1097–1098, 1103–1104.) Second, Casco showed
Perez a substantially identical card printed in Spanish.
(7:1105–1110.)
Regarding the primary objection, Casco testified that he
failed to sign as a witness because at the time a supervisor was
coming, or he had to return to work, or it was at a spot where a
supervisor might see. Asked why he did not sign when he
turned the cards over to the Union, Casco vacillated between
reasons of fear that someone was reporting names to manage-
ment, and the excuse that he simply forgot. On redirect exami-
nation he testified that he was supposed to sign in the presence
of the employee. In his pretrial affidavit of September 1994
(CPX 3), Casco does not address the point of why he did not
date the cards when he turned them over to the Union. Al-
though Casco’s testimony on this point is poor, I credit his
straightforward testimony that he explained the purpose, not
only to Perez, but also to the remaining three before each
signed and returned the card to him. (7:1112, 1118, 1123;
8:1268.)
Finding PDI’s objections to have no merit, I count as valid
the cards of Martha Perez (GCX 12–13), Cheryl Townsend
(GCX 12–14), Ernest Thomas (GCX 12–15), and Marilyn
Davis (GCX 12–16.) As discussed earlier and again shortly,
the parties stipulated that Cheryl Townsend is not an eligible
voter. That moots any discussion regarding her card, and I do
not include her in the bargaining unit.
(3) Majority showing established
That concludes the count of authorization cards. As the re-
cord reflects, and I find, the Government has established the
validity of the 66 authorization cards which I received in evi-
dence at trial. That number is a majority of the 102 employees
in the bargaining unit.
The next question is when did the Union achieve its majority
status. Under Board law, when (as here) there has been no
demand for bargaining (other than what might exist from the
petition filed), the obligation to bargain attaches as of the date
the respondent begins a campaign of unfair labor practices, if
the Union has a majority at that date, and if no majority at that
time, then when the Union attains a majority. Joy Recovery
Technology Corp., 320 NLRB 356, 356 fn. 4 (1945.)
The record reflects that when the Union filed its petition on
May 13, 1994 in Case 12–RC–7736, it had valid cards from at
least 54 members of the bargaining unit. With dates ranging
from May 9 to May 13, 1994, and one card (Crystal Davis’,
GCX 12–50) having an incomplete date (as discussed earlier)
but date stamped at the NLRB Miami’s office on May 13,
1994, the 54 cards are:GCXs 12–2, 5, 6, 7, 8, 9, 10, 12, 13, 16,
17, (the 18 cards 12-19 through 12-36), 38, 39, 40, 41, (the nine
cards 12–43 through 12–51), 53, 54, 55, 57, 59, 60, 61, 62, 63,
64, 65, and 67. That fixes majority status as of May 13, 1994.
The first unfair labor practice after that occurred on May 20
with the new procedure of job posting for the warehouse man-
ager’s vacancy. Less than 2 weeks later PDI bargain it unlaw-
ful retaliation against Vivian Fortin. Thus, under Board law,
PDI’s obligation to recognize and bargain with the Union at-
tached as of May 20, 1994—the date when, after the Union had
reached majority status—PDI embarked on a course of unfair
labor practices calculated to undermine the Union.
H. Alleged 8(a)(5) Refusal to Bargain
1. Introduction
PDI admits the factual allegations of the July 1994 general
wage increase, the August 1994 layoff of 12 employees, and
the October 27, 1994 layoffs of Vivian Fortin and (14:2200–
2203) Annia Vigos. PDI also admits that the wage increase
pertains to wages, the layoffs to employment, and that it did not
give the Union prior notice of either the wage increase or the
layoffs. PDI denies the allegation of complaint paragraph 26
that, by failing to give prior notice to the Union and an oppor-
tunity to bargain over the wage increase and layoffs, that PDI
violated Section 8(a)(5) of the Act.
2. Discussion
Although the General Counsel does not address the refusal to
bargain allegations, the Union, citing Lapeer Foundry & Ma-
chine, 289 NLRB 952 (1988), and other cases, argues that the
layoffs were an unlawful refusal to bargain with the Union.
Respondent argues that there was no 8(a)(5) violation because
there was no demand to bargain.
As Joy Recovery shows, PDI’s bargaining obligation at-
tached on May 20, 1994 as a matter of law. No demand for
bargaining was therefore necessary for a violation of Section
8(a)(5) to accrue. Thus, when PDI unilaterally granted the
general wage increase in July 1994, unilaterally laid off the 12
employees effective August 11, 1994, and unilaterally laid off
the 2 employees on October 27, 1994, it violated Section
8(a)(5) of the Act, as alleged. I so find.
3. UNITE is the successor to the Amalgamated
Effective July 1, 1995, the Amalgamated Clothing and Tex-
tile Workers Union (Amalgamated) and the International La-
dies Garment Workers Union (ILG) merged to form the Union
of Needle Trades, Industrial and Textile Employees (UNITE.)
As she was in 1994, Monica Russo remains the manager of the
Florida District Council, the division that would conduct the
Union’s negotiations with PDI for a contract. (5:768-772.) As
I noted at the beginning, the parties stipulated that UNITE is a

PARTS DEPOT, INC. 729
statutory labor organization. As PDI has not carried its burden
of showing that the merger was not accomplished with minimal
due process, PDI remains under the obligation to recognize and
bargain with UNITE as the proper successor to Amalgamated.
Sullivan Bros. Printers, 317 NLRB 561 (1995), enfd. 99 F.3d
1217, 153 LRRM 2752 (1st Cir. 1996); USA Polymer Corp.,
JD–192–96 (CPX 2; March 25, 1996 decision by Judge Wal-
lace H. Nations currently pending before the Board on excep-
tions.)
I. Case 12–RC–7736
1. The objections
As noted much earlier, the only objection remaining, outside
of those which parallel allegations of the complaint, is Objec-
tion 16(a), which pertains to the ballot (CPX 1) which is
marked in both the Yes and No squares. The Board agent
counted it as a No vote, and the Union’s representative ob-
jected. (6:917.) The Union (Brief at 47) argues that the ballot
should not be counted (in effect, that it should be declared void)
because the intention of the voter is not clear. On brief PDI
does not address the issue. The question is, did the voter
clearly express his intent. Bishop Mugavero Center for Geriat-
ric Care, 322 NLRB 209 (1996); Brooks Bros., 316 NLRB 176
(1995); Caribe Industrial, 216 NLRB 168 (1975.)
The Yes square is marked with an “X.” The mark is rather
faint, and possibly is the result of a brief attempt to erase the
mark. (Both squares are marked in pencil.) In the No square
are multiple heavy dark pencil lines. The end result looks simi-
lar to a rough asterisk. On the other hand, the mark is consis-
tent with an effort to cross out, with multiple lines, whatever
original mark the voter placed in the square.
In Brooks Brothers the voter “clearly obliterated” the “X” in
the Yes square by scratching over it with additional markings,
leaving an unmistakable “X” in the No box. The Board
counted that as a No vote. Did the voter here intend to correct a
mistaken mark in the No square and then mark the Yes box? If
so, why does the mark in the Yes square appear to be faint?
Did the voter really try to erase his mark in the Yes box and try
to compensate by leaving heavy and multiple marks in the No
box in order to stress that he was voting No? We shall never
know. In Caribe the mark in either square, absent the other,
could be counted—as here. The Board there declared the ballot
void. Bishop Mugavero (where Chairman Gould, dissenting,
would overrule Caribe) involved a ballot where the Yes square
had a diagonal mark and the No square an “X” mark.
Finding the voter’s intent here to be ambiguous, I conclude
that the ballot should be declared Void rather than a No vote.
Accordingly, I recommend that the Board find Objection 16(a)
meritorious. Bishop Mugavero; Brooks Bros.; Caribe Indus-
trial.
Consistent with my finding on the complaint allegations, I
would find merit to Objections 4 (the portion as to Vivian
Fortin), 10 (posting of job openings), and dismiss the remaining
objections (being Objections 1, 2, most of 4, 5, 7, 8, 12, and
13.) I so recommend.
2. The challenged ballots
Earlier, when summarizing the Union’s organizing cam-
paign, I reported that the parties had agreed on the status of the
challenged ballot. This freed the challenges to three names on
the voter eligibility list (VEL):Sookdeo K. Choon, Diane Hin-
ton, and Jack Hinton Jr. Thus, the ballots of these three should
be counted. I have included them in the count of the bargaining
unit.
Similarly, the VEL should have included the names of Otilio
Delvie, Zenaida Requejo, and Annia Vigos. The challenge
envelopes should be opened and their ballots counted. I have
included them in the count of the bargaining unit.
Seven others, as earlier noted, are stipulated as not eligible,
and their names were never on the VEL: Glenis Alleyne, Don-
nette Hawley, Elizabeth Kent, Robert Ortega, Wallace Penzing,
Manuel Rodriguez, and Cheryl Townsend. Thus, their ballots
will not be opened and will not be counted. Moreover, I do not
count them in the bargaining unit total.
Four additional names (Roberto Duarte, Ruben Garcia, An-
tonio Rodriguez, and Sergio Ruiz) should have been included
on the VEL, but were not. I have included these four in the
count of the bargaining unit.
The net effect of these stipulated resolutions has been to add
seven names to the VEL. When covering majority status, I
found that the name of Margarita Hernandez also should be
included in the bargaining unit, for a final net count of 102.
3. Concluding recommendation
When a bargaining order is imposed, the Board sets aside the
election and dismisses the election petition. Adam Wholesale,
322 NLRB 313, 314 (1996); DTR Industries, 311 NLRB 833,
836–837 (1993), enf. of bargaining order denied, 39 F.3d 106
(6th Cir. 1994); Holly Farms Corp., 311 NLRB 273, 280 fn. 28,
363 (1993), enfd. 48 F.3d 1360 (4th Cir. 1995.) However, if
the challenged ballots of the six voters found eligible were
sufficient in number to affect the outcome of the election, I
would recommend that their envelopes be opened and their
ballots counted as a precaution against the possibility that the
Board or a court may not agree with my conclusion that a bar-
gaining order is required here. However, even if all six ballots
were cast for the Union, that would give only a tie vote of 46 to
46. When the vote is a tie, the Union loses. Accordingly, as
there is no purpose to be served in opening and counting the six
challenged ballots, I recommend that the election be set aside
and the Union’s petition in Case 12–RC–7736 be dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Parts Depot, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Union of Needletrades, Industrial and Textile Employees,
AFL–CIO, CLC (UNITE) is a labor organization within the
meaning of Section 2(5) of the Act.
3. All warehouse employees, customer service employees,
truck dispatcher, and drivers employed by the Employer at its
Miami and Ft. Lauderdale, Florida warehouses, excluding of-
fice clericals, technical employees, professional employees,
supervisors, and guards as defined by the Act, constitute a unit

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 730
appropriate for collective bargaining within the meaning of
Section 9(a) of the Act.
4. The Union is now, and at all times since May 20, 1994,
has been designated by a majority of unit employees through
valid authorization cards as their exclusive collective bargain-
ing representative within the meaning of Section 9(a) of the
Act.
5. By coercively interrogating employees concerning their
support of the Union, offering employees improved benefits for
the purpose of dissuading them from supporting the Union, and
threatening employees with unspecified reprisals in order to
dissuade employees from supporting the Union, PDI has vio-
lated Section 8(a)(1) of the Act.
6. By granting employees new benefits, disciplining an em-
ployee, restricting an employee’s movements in the facility,
prohibiting employees from waiting for other employees in the
facility, giving an employee an unfavorable performance
evaluation, granting employees a general wage increase, and
laying off an employee, all for the purpose of dissuading em-
ployees from supporting the Union, PDI has violated Section
8(a)(3) and (1) of the Act.
7. By unilaterally granting a general pay increase to employ-
ees in July 1994, unilaterally laying off 12 employees effective
August 11, 1994, and unilaterally laying off 2 employees on
October 27, 1994, without consulting and bargaining with the
Union, PDI has violated Section 8(a)(5) of the Act.
The unfair labor practices set forth above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Although generally the Board does
not order employers to rescind unlawfully granted benefits and
pay increases, because that would simply compound the effects
of the unfair labor practices, in unusual situations a union could
need a remedial provision permitting it to request a rollback.
As that does not appear to be the situation here, and in the ab-
sence of a request for such a provision, I shall not include a
provision enabling the Union to demand that the general wage
increase of July 1994 should be rescinded.
The Respondent having discriminatorily laid off an em-
ployee, it must offer her reinstatement and make her whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987.) Respondent must expunge the tainted August 1994
Performance Evaluation Report from Vivian M. Fortin’s per-
sonnel file. Respondent must also mark its records to reflect
that Fortin is deemed to have received, for her August 1994
performance evaluation, an overall rating of 4.
Respecting the unilateral layoffs, PDI must offer the em-
ployees full reinstatement and make them whole, with interest,
and bargain with the Union over the decisions and the effects of
those decisions. Lapeer Foundry & Machine, 289 NLRB 952
(1988.) The loss of earnings and other benefits must be com-
puted on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., supra, plus interest as com-
puted in New Horizons for the Retarded, supra. The remedy so
ordered will also include Vivian M. Fortin, one of the two em-
ployees laid off October 27, 1994, because, under some re-
motely possible hypothetical, my decision as to Fortin’s 8(a)(3)
layoff could be reversed even though the bargaining order is
affirmed. If my decision regarding Fortin’s 8(a)(3) layoff be-
comes final, then the Union will have no need to request bar-
gaining over Fortin’s layoff.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 18
ORDER
The Respondent, Parts Depot, Inc., its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Granting employees new benefits, disciplining employ-
ees, restricting employee movement within the facility, prohib-
iting employees from waiting for other employees in the facil-
ity, granting employees a general pay increase, providing unfa-
vorable job performance evaluations, laying off, or otherwise
discriminating against any employee for supporting Union of
Needletrades, Industrial and Textile Employees, AFL–CIO,
CLC (UNITE) (the Union.)
(b) Coercively interrogating any employee about union sup-
port or union activities.
(c) Offering employees improved benefits for the purpose of
dissuading them from supporting the Union.
(d) Threatening employees with unspecified reprisals in or-
der to dissuade employees from supporting the Union
(e) Unilaterally granting pay raises to bargaining unit em-
ployees without first consulting with the Union and offering the
Union the opportunity to bargain over the decision and the
effects of such pay increases.
(f) Unilaterally laying off bargaining unit employees for
economic reasons without first consulting with the Union and
offering the Union the opportunity to bargain over the decision
and the effects of such layoffs.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union as the
exclusive representative of the employees in the following ap-
propriate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding
in a signed agreement:

18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, 29 CFR 102.46, the findings, conclu-
sions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, 29 CFR 102.48, be adopted by the Board and all objections to
them shall be deemed waived for all purposes.

PARTS DEPOT, INC. 731
All warehouse employees, customer service employ-
ees, truck dispatcher, and drivers employed by the Em-
ployer at its Miami and Ft. Lauderdale, Florida ware-
houses, excluding office clericals, technical employees,
professional employees, supervisors, and guards as de-
fined by the Act.

(b) Within 14 days from the date of this Order, offer Vivian
M. Fortin full reinstatement to her former job in phone sales
that it would have given her absent the discrimination against
her or, if that job no longer exists, reinstatement to a substan-
tially equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
(c) Make Vivian M. Fortin whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her, in the manner set forth in the remedy section of the
decision.
(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful warnings issued to Vivian
M. Fortin in June 1994, to the unlawful job performance review
issued to her on August 3, 1994, and to her unlawful layoff on
October 27, 1994, and within 3 days thereafter notify the em-
ployee in writing that this has been done and that such dis-
criminatory actions will not be used against her in any way.
(e) Within 14 days from the date of this Order, mark its re-
cords to reflect that Vivian M. Fortin is deemed to have re-
ceived, for her August 1994 performance evaluation, an overall
rating of 4.
(f) On request, bargain with the Union concerning the deci-
sions to lay off bargaining unit employees effective August 11,
1994, and again on October 27, 1994, and the effects of those
decisions.
(g) Within 14 days from the date of this Order, offer the em-
ployees named below, laid off effective August 11, 1994, full
reinstatement 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 en-
joyed:

Carlos Boufartiguez Isabel Martinez
Ronald Casco Aundrai McGregor
Crystal Davis Chester Umana
Jean-Claude Demosthene Angela (Lampin) Wilson
Enrique Flores Jaan Wilson
Ronaldo Hernandez Altonia Wright

(h) Within 14 days from the date of this Order, offer the em-
ployees named below, laid off effective October 27, 1994, full
reinstatement 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 en-
joyed:

Vivian M. Fortin Annia Vigos

(i) Make whole the employees named above, laid off effec-
tive August 11, 1994 and October 27, 1994, for any loss of
earnings and other benefits suffered as a result of their unilat-
eral layoffs, in the manner set forth in the remedy section of the
decision.
(j) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(k) Within 14 days after service by the Region, post at its fa-
cilities in Miami, Florida and Ft. Lauderdale, Florida, copies of
the attached notice marked “Appendix.”19 Copies of the notice,
on forms provided by the Regional Director for Region 17,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August 8,
1994 (the date the original charge was filed and served in this
proceeding.)
(l) Within 21 days after service by the Region, file with the
Regional Director a sworn certification by a responsible official
of a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(m) IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT grant you new benefits, issue you warnings,
restrict your movements within the facility, prohibit your wait-
ing in the facility for other employees, give you unfavorable job

19 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 732
performance evaluations, lay you off, or otherwise discriminate
against any of you for supporting Union of Needletrades,
Industrial and Textile Employees, AFL-CIO, CLC (UNITE),
(the Union) or any other union.
WE WILL NOT coercively interrogate any of you about un-
ion support or union activities.
WE WILL NOT offer you improved benefits for the purpose
of dissuading you from supporting the Union.
WE WILL NOT threaten you with unspecified reprisals in
order to dissuade you from supporting the Union
WE WILL NOT unilaterally grant pay raises to bargaining
unit employees without first consulting with the Union and
offering the Union the opportunity to bargain over the decision
and the effects of such pay increases.
WE WILL NOT unilaterally lay off bargaining unit employ-
ees for economic reasons without first consulting with the Un-
ion and offering the Union the opportunity to bargain over the
decision and the effects of such layoffs.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the Union
as the exclusive representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:

All warehouse employees, customer service employees, truck
dispatcher, and drivers employed by Parts Depot, Inc. at its
Miami and Ft. Lauderdale, Florida warehouses, excluding of-
fice clericals, technical employees, professional employees,
supervisors, and guards as defined by the Act.

WE WILL, within 14 days from the date of the Board’s Or-
der, offer Vivian M. Fortin full reinstatement to the former job
in phone sales which we would have given her absent the dis-
crimination against her or, if that job no longer exists, rein-
statement to a substantially equivalent position, without preju-
dice to her seniority or any other rights or privileges previously
enjoyed.
WE WILL make whole Vivian M. Fortin for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against her, in the manner set forth in the remedy section
of the decision.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful warn-
ings which we issued to Vivian M. Fortin in June 1994, to the
unlawful job performance evaluation which we gave to her on
August 3, 1994, and to her unlawful layoff of October 27, 1994,
and mark our records, including her personnel file, to show that
Vivian M. Fortin is deemed to have received, on her August
1994 performance evaluation, and overall rating of 4, and
within 3 days thereafter WE WILL notify Vivian M. Fortin in
writing that this has been done and that such discriminatory
actions will not be used against her in any way.
WE WILL, on request, bargain with the Union concerning
the decisions to lay off bargaining unit employees effective
August 11, 1994, and again on October 27, 1994, and the ef-
fects of those decisions.
WE WILL, within 14 days from the date of the Board’s Or-
der, offer the employees named below, laid off effective August
11, 1994, full reinstatement 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:

Carlos Boufartiguez Isabel Martinez
Ronald Casco Aundrai McGregor
Crystal Davis Chester Umana
Jean-Claude Demosthene Angela (Lampin) Wilson
Enrique Flores Jaan Wilson
Ronaldo Hernandez Altonia Wright

WE WILL, within 14 days from the date of the Board’s Or-
der, offer the employees named below, laid off effective Octo-
ber 27, 1994, full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or privileges
previously enjoyed:

Vivian M. Fortin Annia Vigos

WE WILL make whole the employees named above, laid off
effective August 11 and October 27, 1994, for any loss of earn-
ings and other benefits suffered as a result of their unilateral
layoffs, in the manner set forth in the remedy section of the
decision.
PARTS DEPOT, INC.