Pellegrini Bros. Wines, Inc.

National Labor Relations Board - Board Decisions

Jan 5, 1979

239 N.L.R.B. 1220 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pellegrini Bros. Wines, Inc. and Freight Checkers,
Clerical Employees and Helpers Local No. 856, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 20-
CA-13419
January 5, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On April 26, 1978, Administrative Law Judge Rus-
sell L. Stevens issued the attached Decision in this
proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief, and
Respondent filed a brief in opposition to the excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Pellegrini Bros. Wines,
Inc., South San Francisco, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge.
IT IS FURTHER ORDERED that allegations of the
complaints not specifically found herein be, and they
hereby are, dismissed.
I Counsel for the General Counsel has excepted to certain credibility find-
ings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an Administrative Law Judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his find-
ings. However, we note that in the second sentence of par. 3 of that portion
of sece Ill,E, of the Decision entitled "Discussion," he inadvertently attrib-
uted testimony given by Tamara Jordan to Laura Lewis. The context makes
it clear that he intended to refer to Jordan's testimony.
Counsel for the General Counsel also asserts that the Administrative Law
Judge erred in finding that Vincent Pellegrini contemplated having Jimmy
Young exchange positions with Supervisor Aki Takahashi because Takaha-
shi asked to be relieved of his supervisory duties on September 16, and that
Pellegrini therefore offered Takahashi's supervisory position to Young on
September 23. Young's testimony makes it appear that Young. at least.
believed that this was what was being offered. However, based on the testi-
mony of Vincent Pellegrini. which was credited by the Administrative Law
Judge, we find that Takahashi's final position was that he must give up his
supervisory position or get an assistant, and that therefore, on Takahashi's
recommendation, Pellegrini offered the position of assistant supervisor to
Young in order to prevent Takahashi from resigning from his supervisory
position.
In adopting the Administrative Law Judge's conclusion that Young was
not discharged in violation of Sec. 8(aX3), we do not rely on his finding that
Young's promotion would have had no effect on union support, inasmuch
as we note that Young and Takahashi would both have been supervisors
had Young accepted the promotion. However, we agree with the Adminis-
trative Law Judge that there is no basis in the record for any inference that
this consideration motivated Respondent to offer Young the position of
assistant supervisor. We further do not rely on the finding of the Adminis-
trative Law Judge that Vincent Pellegrni may not have known of Young's
union activity as of September 16, inasmuch as we find that Supervisor
Takahashi's knowledge of Young's activities is imputed to Respondent by
law.
Counsel for the General Counsel has excepted to the failure of the Ad-
ministrative Law Judge to conclude that Respondent violated Sec. s(aX I) of
the Act by soliciting employee Elizabeth Unmland to engage in surveillance
of union activities. Inasmuch as this allegation is raised for the first time in
the exceptions, and noting that the evidence in support of this allegation
was not fully litigated, no menrit is found in this exception.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Section 7 of the National Labor Relations Act,
as amended, gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT engage in interrogation of our
employees concerning their union activities, in
violation of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing, and to engage in concerted
activities for the purposes of collective bargain-
ing or other mutual aid or protection as guaran-
teed by Section 7 of the Act, or to refrain from
any or all such activities.
PELLEGRINI BROS. WINES, INC.
1220
PELLEGRINI BROS. WINES, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS. Administrative Law Judge: This
matter was heard in San Francisco, California, on Febru-
ary 28 and March 1, 1978.1 The complaint. 2 issued Novem-
ber 23, is based upon a charge filed Sepf .inber 28, and an
amended charge filed November 11, by Freight Checkers,
Clerical Employees and Helpers Local No. 856, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Union). The complaint al-
leges that Pellegrini Bros. Wines, Inc., (Respondent)
violated Section 8(aXI), (3), and (5)3 of the National La-
bor Relations Act (Act), as amended.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of
General Counsel, the Union, and Respondent.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent has been a Cal-
ifornia corporation, with its main office and principal place
of business located in South San Francisco, California,
where it is engaged in the wholesale distribution of wines
and liquor. Respondent, in the course and conduct of its
business operations during the past year, purchased and
received directly from suppliers located outside the State of
California, goods, materials, and supplies valued in excess
of $50,000.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Freight Checkers, Clerical Employees and Helpers Local
No. 856, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICE
Background
Respondent is a distributor of wines and wine products
All dates hereinafter are within 1977, unless stated to be otherwise.
2As amended February 8, 1978. to add par. Vl(d).
3On March 20, 1978. General Counsel filed a motion to withdraw from
the complaint the allegations of pars. Ill, IX. X. XI, and XIV. covering
matters related to 8(a)(5) charges. The motion is based upon recognition of
the Union by Respondent and upon request of the Union that the 8,a)X5)
allegations be withdrawn. The motion has been carefully considered and
hereby is granted.
produced by several vintners. The products are sold to gro-
cery stores, bars, restaurants, and liquor stores. Respon-
dent has been in business since prior to 1940 and presently
employs more than 100 employees. Those employees in-
clude approximately 10 warehousemen, 10 clericals, 22
drivers, 45 salesmen, and 20 or 25 management personnel.
Vincent Pellegrini 4 is Respondent's president; Sidney Die-
bler is Respondent':. controller; Richard Pellegrini is vice
president. Aki Takab:lshi is, and at all times relevant herein
has been, supervisor of Respondent's computer operations.
Jimmy Young, an alleged discriminatee, was one of Re-
spondent's computer operators at times relevant herein and
worked under Takahashi's supervision.
Since approximately 1940, Respondent's warehousemen
and drivers have been represented by Teamsters locals.
The salespersons recently (November 4, 1976) were includ-
ed within the unit represented by Local 109. The clericals
have not been represented by a union as of the date of the
hearing herein. No unfair labor practice charge has been
filed against Respondent 5 and, so far as the record shows,
Respondent's relationship with the unions representing its
employees has been amicable.
In June, Young talked with Takahashi about the possi-
bility of union representation of the clerical employees.
During the remainder of June, and during July, Young
talked first with Takahashi and later, with other clerical
employees about union organization of the clericals. The
clerical employees decided among themselves that they
wanted to be represented by the Teamsters, Local 856. On
September 12, Young talked with Joe Hurley, a union rep-
resentative, on the telephone about organizing Respon-
dent's clerical employees, and Hurley agreed to send blank
union authorization cards to Young at the latter's home.
On September 14, Young obtained signatures of the cleri-
cal employees and returned the completed authorization
cards to the Union. Respondent later recognized the
Union, as noted supra.
On September 16, Takahashi notified V. Pellegrini that
he wanted to relinquish his supervisory job. Later that day,
V. Pellegrini talked with Young about his qualifications for
Takahashi's position as supervisor. No decision was
reached, and V. Pellegrini again talked with Young about
the latter's possible promotion on Friday, September 23.
Again no decision was reached, and on Monday, Septem-
ber 26, V. Pellegrini again asked Young if he wanted the
promotion. An argument ensued, and V. Pellegrini fired
Young.
Issues
Several 8(a)(l) allegations are in issue, and General
Counsel contends that Young was fired because of his pro-
tected activities, in violation of Section 8(aX3 ) of the Act.
Respondent contends that Young was fired solely be-
cause of insubordination during the V. Pellegrini-Young
conversation of September 26.
4All named individuals are referred to herein by their last names.
5 The matter was not fully explained at the hearing, but it appears that a
charge was filed against Respondent by Local 109 dunng contract negotia-
tions in late 1977, and later was withdrawn.
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Alleged Interrogation
Paragraph Vl(c) of the complaint alleges that, on or
about September 18, Diebler interrogated an employee
about her union activities.
Tamara Jordan testified that she has worked for Respon-
dent as a data processor since February 4, 1976. Jordan
said she frequently has had coffee with Diebler, during
which times they discussed many matters of mutual inter-
est. She said she and Diebler had coffee together on Sep-
tember 18, at which time Diebler said, ". .. just between
you and me, have you heard anything about the Union," to
which Jordan replied, "No."
Diebler denied that he interrogated Jordan as she testi-
fied, and further stated that September 18 was a Sunday
and that neither he nor Jordan works on Sundays.6
Discussion
The facts that Young and Takahashi talked on many
occasions about the Union, starting in June, and that Tak-
ahashi was fully aware of Young's activities since June are
well established and are not contradicted by Respondent.
Takahashi's knowledge as a supervisor possibly may be im-
puted to Respondent, even though his interests conflict 7
with those of Respondent. However, the fact is not control-
ling so far as this issue is concerned, since the issue is re-
solved on a different basis. An initial inquiry is whether
Diebler, as a part of Respondent's management, had, by
approximately September 18, suspicion or knowledge of
union activity in the office. The record includes no inde-
pendent evidence of such, other than the testimony of
Young relative to two hearsay conversations he alleges
were related to him by Takahashi. Young testified that, on
September 12, Takahashi told him that he, Takahashi, had
talked on September 9 with R. Pellegrini; that R. Pellegrini
said two clerical employees had reported to him that
Young was soliciting employees for union representation;
that R. Pellegrini asked if Young was the only one "causing
the problems"; that R. Pellegrini asked if Takahashi knew
of any other problems in the office; and that the two of
them talked about possibly hiring a new computer opera-
tor. The second alleged conversation occurred on Septem-
ber 12. Young related that Takahashi told him he and R.
Pellegrini again had talked that day about resumes for
computer operators; that Takahashi told R. Pellegrini he
wanted union representation and that he had urged Young
to solicit the employees; and that R. Pellegrini was
"shocked" to learn of Takahashi's interest in a union. Nei-
ther Takahashi nor R. Pellegrini was called to testify. V.
Pellegrini credibly testified that he was in Europe between
August 18, 19, or 20 and September 14.
Young was an unconvincing witness, and there is doubt
about some of his testimony. Frequently his answers were
6 This fact is given no weight, since the allegation is that the conversation
togk place "on or about September 18 ....
According to the testimony of both V. Pellegrini and Young, Takahashi
had been desirous of relinquishing his supervisory position since at least the
summer of 1977, and, according to Young, one of Takahashi's reasors for
wanting to step down was to be able to join the Union. Young testified that
he was aware of Takahashi's desire to relinquish his supervisory position.
not responsive, and he gave the impression of considerable
antagonism toward Respondent. More important, his testi-
mony seemed to have been memorized, to the point at
which some of his answers appeared fashioned for a ques-
tion that was different from the one he was responding to.
Assessment of his testimony in several instances, and par-
ticularly on this issue, further is complicated by the fact
that neither Takahashi nor R. Pellegrini testified. There-
fore, weight can be given to this testimony by Young only
to the extent that Young is credited. Young's testimony, if
considered alone, would not be accepted. However, Jordan
was a credible witness, and her testimony concerning her
conversation with Diebler is accepted as factual. Based
upon that testimony, it appears, and is inferred, that R.
Pellegrini said something to Takahashi about union activi-
ty on September 9 and 12. Young's testimony about the
Takahashi-R. Pellegrini conversation therefore is credited
to the extent of its support of Jordan's testimony, on the
subject of Respondent's suspicion or knowledge of union
activity on September 18.
Diebler's denial is not credited.
Based upon the foregoing and upon observation of the
witnesses and their demeanor, it is found that this allega-
tion of the complaint is proved.
Interrogation by Diebler
Elizabeth Umland testified that she was employed by
Respondent as a bookkeeper from May 1977 until Decem-
ber 1977, under Diebler's supervision. Umland testified
that she talked with Diebler in the latter part of September,
and Diebler asked her if she had gone to the first union
meeting, to which she replied "no." Diebler asked why she
had not gone, and Umland explained her reason. Thereaf-
ter, "periodically" Diebler asked Umland ". . . how it was
going, who I thought was going to vote . . . what they
expected to gain by it all, what was discussed at the second
meeting." Diebler asked how Laura Lewis, Ann Postany,
and Jordan were going to vote.
Diebler said he talked with Umland about the Union
approximately September 22 but denied asking Umland
how other employees were going to vote or about union
meetings or what would be accomplished by union activity.
Diebler stated that his discussions with Umland were
friendly and that Umland said she was being pressured to
sign an authorization card but that she was not in favor of
union representation.
Discussion
Umland presently is not employed by Respondent, and
her demeanor on the stand instilled confidence in her testi-
mony. She is credited.
Diebler's denial was against a background of conten-
tions that his relationship and conversations with Umland
were friendly and casual, initiated partially by Umland.
Diebler further testified that the union drive was a topic of
general conversation in the office. However, it was clear
from all the testimony that Diebler talked with Umland
about the Unicn, and based upon observations of the wit-
nesses, it is found that Diebler interrogated Umland about
1222
PELLEGRINI BROS. WINES, INC.
union activities and that the interrogation was coercive and
in violation of Section 8(aXI) of the Act.
This issue was not alleged in the complaint as a violation
of the Act, but it was fully litigated.
B. Alleged Discharge of Young
Paragraph VII of the complaint alleges that, on or about
September 26, Respondent discharged Young because of
his protected activities.
Young testified:
(I) On September 12, Takahashi told him that R. Pele-
grini stated to Takahashi on September 9 that Young
should be terminated or replaced, because of the problems
Young was creating by his union activity, and R. Pellegrini
asked Takahashi to review resumes of possible replace-
ments. Young said Takahashi told him that R. Pellegrini
again asked on September 12 that Takahashi review the
resumes.
(2) On September 16, Young met with V. Pellegrini in
the latter's office. It was the first time Young had ever
talked with V. Pellegrini, other than to say "good morn-
ing," and it was the first time Young ever had been in V.
Pellegrini's office. Takahashi and R. Pellegrini also were
present. The following ensued:
... Mr. Vincent Pellegrini said: "I have heard
Aki's story. What is yours."
I said: "Sir, I don't know what you have heard, or
what has been said, but I have no story".
N4 akIed. mo if thore wero ann nrnhlm nnanl I said
no, I didn't ha,
Q. Continue
A. He turnei
"Look at this.
and yet the off
THE wnINESS:
Vincent Pelleg;
we are at it, I v
supervisor."
Mr. Vincent
"Do you have X
no. He said the
I would like to
(3) On Septembe
ni in the latter's offi
ent. The following c
A. When I c
to take a seat. v
if I would acc
with authority
lated by his sot
dures. I would
out his okay.
I looked at I
increase also,
amount, wheth
I said I don't
think about it,
me some time. He wanted an answer come Monday.
Mr. Pellegrini did state in the conversation the rea-
son I was being offered the assistant supervisor was
because Aki had requested to relinquish his title, due
to personal problems.
(4) On September 26, Young met a third time with V.
Pellegrini, again with Diebler and R. Pellegrini present. A
conversation occurred:
Mr. Vincent Pellegrini asked me if I made a deci-
sion as to his request for the position of assistant sup-
ervisor, and I said yes, I had.
Since no money figure had been quoted, that my
supervisor was not present in the room, I had no other
decision but to turn down his offer.
He again asked me specifically what was my deci-
sion; that I wanted to relinquish the job offer given
me, and I said yes, and if there was nothing else, I
would like to be excused, that I had work to do and I
wanted to return to my work.
Mr. Vincent Pellegrini said: "I am president of this
company," pounding his fist on the desk, and turning
to Sid Diebler, company controller, he said: "Isn't that
right, Sid? Am I not president of this company."
Sid agreed, you know, a yes answer, and Mr. Pelle-
grini turned to his son with a gesture of his hand:
"This is my son, Richard Pellegrini. He is vice presi-
dent, and you have no right to request anything in this
room," and I said okay and sat back in my seat.
Ive any problems either. V. Pellegrini then accused Young of ". . . not punching
in or out for lunch and coffee breaks," and of "ripping the
to Richard Pellegrini, his son, he said: company off for overtime." Young denied the accusations,
No one wants to talk about anything, and said he was on salary, without ever having received
ice is in an uproar." any overtime pay. V. Pellegrini said he did not have to
listen to Young's lies and ordered Diebler to make up
0* * * *Young's termination check. Young then left V. Pellegrini's
Aki spoke up and said: "I told Mr. office, called the Union, and was escorted out of the office
rini I wanted more money, and while by Diebler.
would like to relinquish my position as On cross-examination, Young expanded his direct testi-
mony, and stated: a
Pellegrini took a few minutes and said: (I) During the conversation with Takahashi on Septem-
anything else to add to this," and I said ber 12, Takahashi told Young that Takahashi had advised
en: "Would you please leave the room? R. Pellegrini on September 9 that Takahashi, rather than
talk to Aki in private." Young, initiated and was responsible for the union activity
in the office.
r 23, Young again met with V. Pellegri- (2) During the conversation with V. Pellegrini on Sep-
ice, with Diebler and R. Pellegrini pres- tember 16, the latter asked Young if he was qualified to do
conversation took place: Takahashi's work, and Young said he was qualified but did
came in, Mr. Pellegrini again asked me not want another type of position. Young said he had
After doing so, Vincent Pellegrini asked knowledge of other systems, which Takahashi did not
ept a position of assistant supervisor, have. Takahashi stated during the conversation, that he
to hire and fire, but it would be regu- "would relinquish his position as supervisor." V. Pellegrini
n, Richard Pellegrini-the firing proce- asked Young if he had any problems, Young said no, and
not have authority to fire directly, with-
8 General Counsel's case rests, in part, upon the assumption that Young
tim. He said yes, there will be a salary was the principal moving factor in union activity. In view of Takahashi's
but no figure was quoted, no dollar alleged statements to R. Pellegrini. as related by Young, that assumption
er ten cents, or anything. seems less than fully justified. In view of all the testimony, it appears equally
possible that Takahashi was the moving force, and that he acted through
t know and that I was going to have to Young who, as a rank-and-file employee, could be a free agent so far as the
and Mr. Pellegrini said he would give Union was concerned
1223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. Pellegrini then asked Young to excuse himself, in order
that V. Pellegrini could talk privately with Takahashi.
(3) During the conversation in V. Pellegrini's office on
September 23, V. Pellegrini offered Young the job of assis-
tant supervisor "over Mr. Takahashi," with an increase in
Young's salary. Takahashi and Young stated that they
wanted R. Pellegrini to take over Takahashi's job, and V.
Pellegrini said his brother was not qualified to run the com-
puter room. V. Pellegrini said Takahashi wanted to relin-
quish his position as supervisor, for personal reasons, and,
at an uncertain time or times prior to the meeting of Sep-
tember 23, Takahashi and Young had discussed the
former's desire to relinquish his position as supervisor if
Takahashi became a union member.
(4) During the conversation with V. Pellegrini on Sep-
tember 26:
. . I stated I refused the job offer, and I requested
Aki Takahashi be present in the room if there was
going to be any more discussion on this line of job
promotion, and that based on the fact no money was
specifically stated to me, that I had to refuse the job.
Q. But had not Mr. Pellegrini, on the Friday before,
when he offered you the job, said that money would
be talked about as soon as you gave your answer? If
you wanted the job, money would be discussed with
you, and that would all be taken care of, that he just
wanted to know whether or not you would take the
job?
A. He expressed the fact a salary was indicated. No
money was ever quoted.
Q. Right, but he said once you expressed your in-
terest in the job that you could talk money, is that
right?
A. Yes.
Q. He wanted you to declare yourself?
A. He wanted me to declare the position first be-
fore he stated the money.
A. He asked me who signs your paycheck, and I
stated he signed my paycheck but I worked for Aki
Takahashi, he was my supervisor. He owned the com-
pany and that gave him the right to sign my check, but
Alki, as far as I was concerned, was my supervisor, and
I stated that, that Aki was my supervisor and that Mr.
Pellegrini signed my check. That's what he asked, who
signs the checks, and I stated he did.
Q. So you did not want to respond to the question
until your supervisor, Aki Takahashi was in the room,
is that right?
A. The questions that were asked about assistant
supervisor.
Q. Yes.
Diebler did not testify on this subject, and neither Tak-
ahashi nor R. Pellegrini was called as a witness.
V. Pellegrini testified that he first learned of union activi-
ty in the office when he received a letter from NLRB on
September 22. He received a letter from the Union the
same day. On September 16, Takahashi came into his of-
fice and said he wanted to relinquish his supervisory posi-
tion for several personal reasons, including his wife's preg-
nancy, his ulcers, the necessity for their moving, and the
delinquency of some of his work. Takahashi recommended
Young for his job, and, after talking about Young's qualifi-
cations, Young was called into the conference. V. Pellegrini
told Young about Takahashi's decision and asked if Young
felt he could do the work Takahashi had been doing.
Young's answer was yes, "I believe I have more experience
than Aki has .... " They continued talking:
I asked if he had any problems at that time, as far as
the company was concerned. Is there anything bother-
ing you at this time.
He said I like my job, I like it here, I like everything
about it. He said the only thing is money.
I said let's not worry about the money remedy at
this point. Let me continue to talk to Aki, and I will
talk to you at a later date, and he got up and left and
went into the computer room, or went about his busi-
ness at this time.
Later that day, V. Pellegrini tried to get Takahashi to
reconsider, and he asked Takahashi to consider his deci-
sion during the vacation Takahashi then was about to com-
mence and to give his final decision to V. Pellegrini when
he returned to work after the vacation. V. Pellegrini said he
would consider the possibility of promoting Young. On
September 20, V. Pellegrini called Takahashi on the tele-
phone, promised to get him some assistance, and asked
him not to resign. They again discussed the possibility of
promoting Young. On September 23, V. Pellegrini talked
with Young about the possible promotion, and Young
asked, ". .. what is the money?" V. Pellegrini replied:
I said let's really not discuss the money problem at
this point. I said first of all, if you apply for a job or
someone calls you in to raise you in a position, you
either have to say you are interested or you are not
interested. If you are not interested, then we will take
other steps.
At Young's request, V. Pellegrini gave him the weekend
to think about the matter, and to discuss it with his wife.
On September 26, V. Pellegrini called Young into his office
and asked if he had come to a decision. Young said, ". ..
we have never talked about money." V. Pellegrini replied, "
. . . let's not talk about money right now. All I am asking
is have you given it any thought," and he said yes, he had.
Then:
I said what is your answer at this time, and he says
I don't want to answer that.
I said do you have a reason why you don't want to
answer, and he said he didn't have to.
I said Jim, settle down and don't get excited. You
know, let's not get jumpy. I am asking you a direct
question and we discussed it last Friday. I believe you
have had time to think it over. If you have not had
enough time to think it over, tell me you have not had
time.
He said I don't have to answer any of your ques-
tions, I am going to wait for my supervisor.
I said t3 him at that time why your supervisor. I
1224
PELLEGRINI BROS. WINES, INC.
mean why can't you answer it to me, and he said he
didn't have to answer to anything.
So again I tried to calm him down. I said look, I am
trying to get this thing worked out. Aki needs help.
Somebody has to take the job. Wherever it comes
from, I have to get somebody in the particular job or
we will never get our programming done. We are a
year behind in programming.
He said I don't have to talk to you about anything,
so again I said look, simmer down. I said I want to ask
you a question, who signs your checks.
He said you do, but I don't have to talk to you. I
want to talk to my supervisor.
I tried several times to break up the discussion, tried
to turn it around, just to have him say no. If he had
said no it would have been no, but he never did tell me
no. He kept saying I don't have to talk to you, I don't
have to talk to you, I don't have to tell you nothing, so
we went round and round and round. I did not want
to do what I had to do, but I have been stepped on
before, and if you don't make action on this type of
thing, this kind of conversation, you end up beating
the boards, so again I repeated myself and asked if he
needed more time, and he would not answer that.
I said is there anything I have to explain, and he
wouldn't answer. I said is there something wrong, and
one thing he said-I like my job.
V. Pellegrini then called Diebler in and asked him to
prepare Young's termination check. V. Pellegrini followed
Young into the computer room and asked him how he was
geting in and out of the office without a key at night, since
V. Pellegrini was concerned about that security problem.
Young replied, ". . . I don't have to tell you. I am termi-
nated. I don't have to tell you anything . . . There are
ways."' 9 A few minutes later, V. Pellegrini received a tele-
phone call from Hurley, the union representative, and they
had a brief argument about Young's discharge. V. Pellegri-
ni denied that the subjects of coffee breaks, other breaks,
or overtime were discussed during the conversation of Sep-
tember 26. He further stated that Laura Lewis was given
the job of assistant manager to Takahashi, upon the latter's
recommendation, on December 1.
Discussion
(1) It is noted at the outset that General Counsel does
not plead, litigate, or argue post-trial that there was an
8(aXl) offer to Young of a promotion to deter his union
activities. There is nothing in the record to indicate such a
violation. It is necessary, therefore, to consider the nature
of the conversation of September 16. Several facts about
that meeting are not in dispute: (a) Takahashi advised V.
Pellegrini, in Young's presence, that he wanted more
money and that he wanted to relinquish his position as
supervisor; (b) V. Pellegrini asked Young if the latter was
qualified for Takahashi's position, and Young said he was
and, in fact, knew some computer systems that Takahashi
Young testified that he wua not asked this question, nor did he reply to
the simple statement by V. Pellegrini, ". . he did not know how I got into
the building."
did not know; (c) V. Pellegrini asked Young if the latter
had any office-related problems, and Young replied that he
did not; (d) V. Pellegrini testified, credibly and without
challenge, that he called Young into the meeting because
Takahashi recommended that Young take over his posi-
tion. The sequence of events agreed to by V. Pellegrini and
Young supports V. Pellegrini's testimony on this point.
It is clear, therefore, that, as of September 16, V. Pelle-
grini was considering the possibility of Takahashi and
Young changing positions. It is equally clear that union
considerations had no part in V. Pellegrini's deliberations
at this point. (a) Nothing was said in the meeting of Sep-
tember 16 about union activities; (b) a switch of Young for
Takahashi would have no effect on union support; Re-
spondent would lose one vote and gain one vote; (c) Al-
though, as a matter of law, Respondent possibly may be
charged with Takahl shi's knowledge of Young's union ac-
tivity as of September 16, it is possible that V. Pellegrini
then did not know of those activities. V. Pellegrini had just
returned from Europe on September 14, and he said he did
not learn until September 22 about union activities at the
office. It is not at all certain that R. Pellegrini said anything
to V. Pellegrini about union activities of Young, since, even
by Young's testimony, Takahashi told R. Pellegrini that he,
Takahashi, was the instigator and the force behind that
activity; further, Takahashi urged R. Pellegrini to retain
Young.
Based upon the foregoing, it is clear, and found, that V.
Pellegrini's initial inquiry of Young concerning a promo-
tion was in good faith, was based upon Takahashi's recom-
mendation, was motivated by business reasons, and was
free of any union consideration.
(2) Young and V. Pellegrini essentially agree upon
events of their September 23 meeting. The only subject
discussed was V. Pellegrini's inquiry concerning Young's
possible interest in Takahashi's job, which the latter no
longer wanted because of personal problems. V. Pellegrini
said Young would get a raise, but no amount was talked
about. No mention of union activities was made. No break
in the continuity of V. Pellegrini's thoughts or of events
involving Takahashi and Young is indicated. The meeting
was not related in any manner, so far as the record shows,
to V. Pellegrini's receipt on September 22 of letters from
NLRB and the Union.
(3) The same continuity of V. Pellegrini's thoughts, and
of events, and the same absence of any indication of union
considerations are shown at the meeting of September 26.
The record clearly shows that V. Pellegrini asked Young
about his decision, and Young replied in an obstinate, un-
reasonable, and insubordinate manner, indicating that he
worked for Takahashi and not for V. Pellegrini. There is
nothing to indicate that V. Pellegrini was abusive,l0 coer-
cive, deceptive, or interested in anything other than a de-
sire to see that the work of the computer room was in
qualified hands. Clearly V. Pellegrini was attempting to re-
tain both Takahashi," an experienced employee who had
lived with the computer room since its inception, and
10 Young's testimony that V. Pellegrim pounded the desk with his fist was
denied by V. Pellegnni and is given no weight.
Takahashi's present assistant is Laura Lewis. who was recommended
for the job by Takahashi.
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Young, whom Takahashi had recommended as his replace-
ment. Had Young accepted the offer, as Pellegrini obvious-
ly hoped for, the union vote would have remained the
same, V. Pellegrini would have guaranteed continued prop-
er operation of the computer room, and Respondent still
would have a supervisor favorably disposed toward the
Union. It seems apparent that, had Young merely refused
the promotion in a normal manner, he still would be work-
ing for Respondent. Young's qualifications are in a techni-
cal field, Takahashi needed assistance and had recom-
mended Young as fully qualified for Takahashi's job, and
even if Young later quit his job, V. Pellegrini would have
no way of knowing union views of a replacement. There is
nothing in the record to indicate that V. Pellegrini person-
ally was antagonistic toward Young or fired Young out of
revenge. It is clear beyond reasonable dispute that Young
caused his own discharge solely by telling the president of
his employer that he did not work for the president, he
worked for a supervisor; that the president was, in Young's
view, no more than a check signer. Young's insubordina-
tion was clear and strong, even by his own testimony. In
view of V. Pellegrini's age, experience, and position with
Respondent, his response to Young's actions was predict-
able. That response was spontaneous and clearly unrelated
to union activities.
V. Pellegrini denied any conversation with Young con-
cerning workbreaks and overtime. However, Jordan testi-
fied that, at an employees' meeting on September 28, V.
Pellegrini said he had fired Young because of Young's in-
subordination, and ". . . something to do with Jim
Young's timecards, saying Jim had not punched out for his
coffee breaks or lunch or dinners-whatever the case, and
that, you know, the thing-he thought maybe he was trying
to get overtime .... Then he said regardless of that, if
you worked overtime, he had never been paid overtime."
At most, this testimony affects V. Pellegrini's credibility so
far as his denial is concerned. Both Young and V. Pellegri-
ni are credited in part and not credited in part, as indicated
herein. All testimony of record has been carefully consid-
ered, with weight and credibility assigned as deemed prop-
er.
V. Pellegrini's testimony that he fired two other employ-
ees in the past because of insubordination, both of which
discharges were given under union contracts without rein-
statement, is credited.
General Counsel argues that the "timing" of Young's
discharge, coming as it did, soon after V. Pellegrini re-
ceived letters from NLRB and the Union, creates an infer-
ence that the discharge resulted, at least in part, from
Young's union activity. In proper circumstances "timing"
may be important or even controlling. However, this case
is not within the ambit of such circumstances. It is clear,
even by Young's testimony, that the chain of events lead-
ing to Young's discharge started on September 16, when
Takahashi recommended Young as his replacement. That
entire chain of events is related solely to normal conduct of
business affairs. The record discloses no imposition of
union considerations onto that chain of events.)2
12 Young's repeated insistence upon knowing in advance the amount the
raise would be if he accepted the job as supervisor, pnor to committing
General Counsel also argues that Young never received
any warning or discipline during his employment by Re-
spondent. That may be true, but Young only worked for
Respondent approximately 9 months, which does not clas-
sify him as an oldtimer at the office. It is noted, moreover,
that Young first met formally and talked with V. Pellegrini
on September 16, and his conduct was so offensive during
his third contact with Pellegrini 10 days later that he was
summarily fired.
In view of all the facts, it is clear that Young created the
reason for his discharge and that his conduct was such that
he would have been discharged because of that conduct,
regardless of any union activity on his part.13 It is found
that Young was fired solely because of his insubordination,
unrelated to any union activity on his part, and that this
allegation is not proved.
C. Alleged Promise of a Wage Increase
Paragraph VI(a) of the complaint alleges that, on or
about September 28, V. Pellegrini promised to employees,
a wage increase and health and welfare benefits in order to
discourage their support of the Union.
Lewis testified that she attended a meeting of employees,
called by V. Pellegrini, on September 28, at which time she
was a keypunch operator. Lewis stated:
Q. Was the Union mentioned at all during the
meeting?
A. Nothing specific about Union. He say I hear
sonme of the people wants the Union come in, and he
says fine, let's have a vote. He wants, you know, have
a vote.
Q. Did he say anything about raises?
A. Yes. He say he was put us all for a raise in Octo-
ber before he took a trip. Then he say he will give
everybody a raise. He already planned that before he
went on the trip.'4
Lewis further testified that she heard nothing about a
raise, prior to the meeting. Lewis stated that, later in the
day on September 28 she met with V. Pellegrini in his of-
fice, with Takahashi and R. Pellegrini in attendance, and
that V. Pellegrini stated, ". . . I was there about three
months and he was giving me a raise. I think it was $30,
and he would give me another raise in January, which I
would be with the company for six months." The second
raise was said to be $40.
Jordan testified that she attended the employees' meet-
ing of September 28. When asked if raises were discussed,
she replied, "I cannot say for sure if that was mentioned at
that meeting." Jordan said she met later that day with V.
Pellegrini and that Takahashi and R. Pellegrini were pres-
ent. Jordan testified that V. Pellegrini spoke about Young's
himself, and V. Pellegrini's repeated insistence upon first knowing of
Young's interest represent no more than personal differences. This matter is
given no weight in considering the issues.
M. Restaurants, Incorporated, d/b/a The Mandarin, 223 NLRB 725
(1976); Kaye-Smith Enterprises, 211 NLRB 1034 (1974); Erie Strayer Com-
pany, 213 NLRB 344, 346. fn. 9 (1974).
Lewis is of Oriental extraction. Her use of English is not without diffi-
culty. but she testified in satisfactory terms, so far as the use of language is
concerned.
1226
PELLEGRINI BROS. WINES, INC.
dismissal, about the union campaign, and about a raise for
her, stating, inter alia.
A. And that this thing with the Union, you know,
he did not care one way or another if we went Union.
Win, lose or draw, we were still going to be there, and
that he wanted an election now, to be taken now, and
he says I don't want to know if you have anything to
do with this, or if you want the Union or if you don't
want the Union, but at one time when you had finan-
cial problems, I helped you out, so when the time
comes, please use your head.
Q. Did he say anything about a raise during this
meeting?
A. Yes, he did. He said he had put me in for a $100
raise.
Q. Did he say anything else?
A. He asked me if that seemed fair, and I said yes.
Q. All right.
Finally, Jordan testified that she first was hired on Feb-
ruary 4, 1976; that she received her first raise, of $50, which
was not solicited, in September 1976; that she received her
next raise, of $50, which was not solicited, in January 1977;
that she solicited from R. Pellegrini a raise of $75, because
of her added experience, in the latter part of August 1977;
and that R. Pellegrini said he doubted that his father would
give Jordan $75 "at one time," but that he would ". . . talk
to his father and get back to me." On cross-examination,
Jordan stated that, when she asked R. Pellegrini for a raise
in August, R. Pellegrini said ". . . he would have to talk to
his father when he came back from his trip." Jordan fur-
ther testified on cross-examination:
I went in and talked to him about a raise, like I so
stated, and he said he would talk to his father when he
came back from his trip, and that it was possible his
father would consider raises for other people who have
not had raises until now, until that time.
Q. Did you then tell Helen about that?
A. Yes, I think I told Helen and Denise Vannucchi.
Q. What did you tell Helen and Denise?
A. I talked to them both at the same time. I left
Rick's office and, you know, it sounded probable, and
I said we might be able to get a raise when Mr. Pelle-
grini comes back.
Q. You told that to Helen?
A. Helen and Denise. They were both there.
Q. Did you tell them you talked to Rick?
A. Yes. Everybody knew I was going in and asking
him for a raise.
Helen Valencia testified that she first was employed by
Respondent on December 6, 1976, and that she received
her first raise, of $25, after she had worked 3 months. Va-
lencia said she received her next raise effective October I.
Finally, she said she and another employee asked Jordan,
as the latter left R. Pellegrini's office in August, if Jordan
got a raise, and Jordan replied ". . . no, but he says his dad
was taking it into consideration and we would all get one in
October."
Relative to the employees' meeting of September 28, V.
Pellegrini testified:
What did you say during the course of this meeting?
A. Well, I told them we had received the petition,
which everyone knew, because the petition had been
put up.
I announced to them at that time there were wage
increases and I would like to speak to everybody on a
one-on-one basis, or with their supervisor, because I
still feel wages are confidential. I never read out a list
of everybody's wages.
V. Pellegrini testified that in the past, token raises had
been given to clerical employees a few months after hire in
order to encourage them in their work. Historically, regular
raises have been given to clerical employees and salesmen
on August I of each year, at the same time raises were
given to Teamsters under their contract with Local 85. The
date of August I was delayed to November I in 1975 be-
cause of delay in reaching agreement that year with Local
85. Raises were given on August I in 1973 and 1974. Local
85 employees were given a contract raise on August 1,
1977, but at that time Respondent was negotiating a sepa-
rate contract with Local 109 for the salesmen. Therefore,
the usual August I raises for salesmen and clericals were
delayed, since, historically, salesmen and clericals worked
closely together and were considered together. An agree-
ment was reached with Local 109 in August, with wage
increases to become effective October 1. Increases for
clerical employees were formulated in August, and by
memorandum of September 15 or 16,16 V. Pellegrini in-
structed the payroll department to put the raises into effect
October 1.'?
Discussion
There is no dispute about the fact that V. Pellegrini
knew, on September 28, about union activity in the office.' s
The testimony concerning the employees' meeting on Sep-
tember 28 is ambiguous and inconclusive. Only two em-
ployees testified about that meeting. Lewis testified that V.
Pellegrini stated, ". . . he will give everybody a raise. He
already planned that before he went on the trip." Jordan
said she could not remember whether anything was said at
the meeting about raises. So far as individual conferences
or. September 28 are concerned, only the same two em-
ployees testified. Lewis said V. Pellegrini told her, among
other things, that she would be getting her initial raise fol-
lowing 3 months' employment and another raise in Janu-
ary. Jordan already had asked for a raise in August, based
upon her increased experience, and had been told it was
under consideration. V. Pellegrini told her on September
28. among other things, that she would be getting a raise.
An initial question is whether the October I raise was
planned or scheduled pursuant to customary practice. V.
Pellegrini credibly testified that past raises have been given
on August I, except in 1975 and 1976. His explanation of
This agreement. which was signed November 4. is Resp. Exh. 5.
' This alleged memorandum was not introduced into evidence.
The amounts of all clerical raises were stipulated by counsel.
is However, there is nothing in the record to show that V. Pellegrini. or
an) other member of management, knew on September 28. or at any other
time, of any union activity on the part of Jordan or Lewis.
1227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the change to October I in 1977, in order to coordinate
raises for salesmen and clerical employees as in the past,
was logical and is credited.
A second question is concerned with the date when the
1977 raises were planned. V. Pellegrini testified that the
1977 raises were formulated in August, and that he in-
structed the payroll department by memorandum on Sep-
tember 15 or 16 to put the raises into effect October 1. The
memorandum was not introduced into evidence, but no
inference is drawn from that fact, since V. Pellegrini's testi-
mony has independent support from General Counsel's
witnesses. Jordan testified that, after she asked R. Pellegri-
ni for a raise in August, she talked with two fellow employ-
ees and advised them ". . . it sounded probable, and I said
we might be able to get a raise when Mr. Pellegrini comes
back." (Emphasis supplied.) Valencia testified that Jordan
talked with her and another employee just after Jordan
emerged from R. Pellegrini's office in August:
THE WimESS: Tammy went in and asked for one and
she came out and I asked her if she got her raise, and
she said no, but Rick said his dad was giving us all one
in October, so I was looking forward to it.
Q. So you had been looking forward to a raise since
August 1977?
A. Yes.
Q. And you expected to get one in October?
A. I really did after she made the statement to me,
yes.
Jordan and Valencia were convincing witnesses, and
they are credited. It is clear, and found, that V. Pellegrini
had planned an October raise since August, and that the
raise was an annual one to be given in accordance with
past practice, as that practice was modified because of the
new agreement with Local 109.
The only remaining question is whether V. Pellegrini
used the proposed raise as a weapon against the Union. It
is found that he did not. (a) Employees were informed in
August of the intended raise in October. There is no evi-
dence that Respondent made any attempt to conceal its
plans or to ambush the Union with the raise. (b) V. Pelle-
grini was in Europe from approximately August 19 until
September 14, and V. Pellegrini was Respondent's deci-
sionmaker. Clearly, no action on the raise would be taken
in his absence, thus no inference is drawn from the delay
between notification of the planned raise, given to Jordan
in August, and September 28, when V. Pellegrini talked
with the employees. (c) There is no testimony or evidence
that V. Pellegrini attempted to use the raise as a deterrent
to union activity.'9
This allegation was not proved, since the raises were
promised in accordance with past practice; the promise
was not given in order to interfere with protected activities;
and Respondent made no change in its original plan to
give raises to employees in order to interfere with union
activities.2
19 Jordan's testimony concerning a "favor" R. Pellegrini did her in grant-
inca loan is not related to any discussion about a raise.
Aircraft Hydro-Forming, Inc., 221 NL.RB 581 (1975); Stumpf Motor
Company. Inc., 208 NLRB 431 (1974).
D. Alleged Wage Increases
Paragraph Vl(d) of the complaint alleges that, on or
about October 1, 1977, Respondent granted wage increases
to employees in order to discourage their support of the
Union.
The fact that wage increases were given on October I
was stipulated by counsel.
It is found, for the reasons discussed in section C, supra,
that the wage increases were given in accordance with past
practice; that they were given solely for business reasons;
that they were not given in order to discourage or interfere
with union activities; 21 and that the increases did not vio-
late the Act as alleged.22
E. Alieged Promise of Benefits
Paragraph Vl(b) alleges that, on or about September 28,
V. Pellegrini promised health and welfare benefits to em-
ployees in order to discourage their support of the Union.
Counsel stipulated that a new health plan was not inau-
gurated by Respondent, that only modification of an ex-
isting plan is involved. Counsel also stipulated that the in-
surance carrier was changed at time of the modification.
Lewis testified that V. Pellegrini talked with her about
health benefits during their conversation of September 28:
. . .He asked me if I am satisfied with the health
benefits, and I say usually where I work I don't need
it. My husband is retired from the Navy and I am
covered, that I need a dentist, but that is not covered,
so he said okay, and he talked to Sid and ask him-my
case was kind of special, and then he checked with Sid
about my dentist coverage.
Q. Did he say anything about dependent coverage?
A. Dependent? Before I told him I don't need de-
pendent, because they are all covered by my
husband's retirement plan, so later he tell me my de-
pendents are covered too, because this dental has to
go with the health plan.
Q. Prior to this day, had you heard anything about
dependent coverage for the health plan the company
has?
A. No.
Q. Were dependents in fact covered?
A. When I was hired, the health plan was to cover
myself, just me.
Q. And did not cover your dependents?
A. No.
Jordan testified relative to V. Pellegrini's statements at
the employees' meeting on September 28:
Then he said something about a new health plan
and that we would each have an individual meeting
with him and he would talk to us about our progress,
and that was all.
Jordan stated that, when she met later in the day on
:I The fact that Jordan was raised $100, rather than the $75 she requested.
has been considered and is given no weight.
22 Aircraft HIvdro-Forming, Inc., vupra, Stumpf Motor Company, Inc. rupra.
228
PELLEGRINI BROS. WINES, INC.
September 28 with V. Pellegrini, he said the Company had
a new health plan that would cover dependents.
Sudhir Sahni testified that he has been handling
Respondent's group health problems for approximately 5
years. He testified that prior to July 1, 1977, Metropolitan
Life was Respondent's group health carrier and Great
Western was Respondent's carrier for dental care. Sahni
learned in February of 1977 that Great Western's rates
were going to be increased by 26 percent, 23 and he notified
Diebler of that fact. By letter dated May 31, 1977, Metro-
politan Life notified Sahni of an increase in rates effective
July 1, 1977.2 Sahni notified Diebler, and recommended
that new carriers be considered. Diebler agreed, requesting
that a single carrier be obtained, if possible. Sahni then
located Travelers Insurance Company, which offered
many advantages, including single-carrier coverage of both
medical and dental claims. Respondent changed carriers to
Travelers Insurance Company on July I, after a delay oc-
casioned by the fact that the policy covered salesmen. It
had been necessary to obtain the approval of Local 109,
with which Respondent then was negotiating. Sahni had
pamphlets and written material prepared for distribution to
Respondent's employees, explaining the new policy, and
those pamphlets and the material were delivered to Re-
spondent in late September.
V. Pellegrini testified that he talked about health benefits
when he spoke at the employees' meeting on September 28:
I also told them the Salesmen's agreement was
going into effect on October i, and that the medical
plan, everybody would be on the same plan. and there
was no way I could just take a small group of people
out of the medical plan, being Local 109 had approved
our plan. We are not under a Union plan; we are
under a company plan, and Local 109 prior to my
departure on vacation, approved all the conditions we
were talking about and they felt our plan was a better
plan than what the Union could present, and they ac-
cepted the plan.
On my return, I announced it to my people.
V. Pellegrini also testified that, during negotiations with
Local 109, Respondent agreed to extend its health policy to
cover dependents and that, since the two groups were too
small in number individually to have such coverage, Re-
spondent included dependents of clerical employees in the
extension, in addition to dependents of salesmen. V. Pelle-
grini testified:
A. On September 28 the statement I made was the
clerical people were going to have the same plan as the
sales people have and have always enjoyed together,
and the plan had been brought up to better standards,
and if anybody had any questions about it, they were
free to discuss it with me and I would talk to them
individually, because everybody's problems would be
different probably.
23 Resp Exh. 1.
24 Resp. Exh. 2.
Discussion
It is clear beyond reasonable question that Respondent's
change of health policy carrier solely was for business rea-
sons unrelated to union activities.
So far as extension of the policy to cover dependents is
concerned, V. Pellegrini's explanation is credited in its en-
tirety. It is noted that General Counsel has not alleged an
unfair labor practice on the basis of granting health bene-
fits; he contends only that such benefits unlawfully were
promised.
The only testimony introduced in support of this allega-
tion is that of Jordan and Lewis. Lewis' testimony on this
point was brief and of no probative value. Lewis also testi-
fied but briefly, and the only support for the charge was
her statement that she had not heard anything prior to
September 28 about dependent coverage..
In view of V. Pellegrini's credited testimony that the de-
pendent coverage was to commence October I and that he
advised employees of the extension on September 28; and
in further view of the good faith of Respondent in obtain-
ing the extension for all its salesmen and clerical employ-
ees; and in view of the failure of General Counsel to show
that V. Pellegrini's "promise" of benefits was made on Sep-
tember 28 in order to interfere with protected activities,
this allegation is found to be without support. It is clear
that V. Pellegrini's "promise" was no more than a state-
ment of fact, made to advise employees of the extended
coverage. His version of his statement made to employees
on September 28 is credited.
IV THF EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I., above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
* THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) of the
Act. I shall recommend that Respondent be ordered to
cease and desist therefrom, and in any like or related man-
ner infringing upon its employees' Section 7 rights, and to
take certain affirmative action designed to effectuate poli-
cies of the Act.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CON CLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent engaged in unfair labor practices in vio-
1229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lation of Section 8(aXI) of the Act, as described above, by
interrogating its employees concerning their union activi-
ties.
4. Respondent did not engage in any unfair labor prac-
tices in violation of the Act, other than as described in
paragraph 3.
5. By the aforesaid actions, Respondent has interfered
with, restrained, and coerced, and is interfering with, re-
straining, and coercing, employees in the exercise of rights
guaranteed them in Section 7 of the Act, and thereby has
engaged in, and is engaging in, unfair labor practices with-
in the meaning of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 2'
The Respondent, Pellegrini Bros. Wines, Inc., South San
Francisco, California, its officers, agents, successors, and
assigns, shall:
25 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
I. Cease and desist from:
(a) Interrogating its employees concerning their union
activities, in violation of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist labor orga-
nizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual
aid or protection as guaranteed by Section 7 of the Act, or
to refrain from any or all such activities.
2. Take the following affirmative action to effectuate the
purposes of the Act:
(a) Post at its offices in South San Francisco, California,
copies of the attached notice marked "Appendix." 26 Cop-
ies of said notice, cn forms provided by the Regional Di-
rector for Region 20, after being duly signed by the Re-
spondent's representatives, shall be posted by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
26 In the event that this Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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