St. George Warehouse, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 2000

331 N.L.R.B. 454 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

454
St. George Warehouse, Inc. and Merchandise Drivers
Local 641, International Brotherhood of Team-
sters. Cases 22–CA–23223, 22–CA–23259, 22–
CA–23270, and 22–RC–11703
June 23, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND BRAME
On February 8, 2000, Administrative Law Judge How-
ard Edelman issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.1
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 brief and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order as modified and set
forth in full below.4

1 No exceptions were filed to the judge’s dismissal of the allegation
that the Respondent discriminated against Jesse Tharp by assigning him
heavier workloads. Also, no exceptions were filed to the judge’s con-
clusions that: the Respondent violated Sec. 8(a)(1) by unlawfully inter-
rogating employees; the Respondent violated Sec. 8(a)(3) and (1) by
increasing the volume of written discipline given to employees after it
became aware of employees’ union activities and by issuing written
warnings to employees; the Respondent violated Sec. 8(a)(1) by re-
marks impliedly promising benefits; the Respondent’s no-solicitation,
no-distribution clause was ambiguous and overly broad, and the Re-
spondent violated Sec. 8(a)(1) when it required employees to sign for
receipt of a manual containing that clause.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
The Respondent also has excepted to the judge’s application of the
“small shop theory” to establish the Respondent’s knowledge of Jesse
Tharp’s union activities. We find it unnecessary to rely on that theory
in concluding that the record supports the judge’s determination that the
Respondent had knowledge of Tharp’s union activities.
In addition, Member Brame finds it unnecessary to rely on the
judge’s findings that the Respondent did not have to pay for employee
Leonard Sides’ miscounting mistakes, in order to find that the Respon-
dent violated Sec. 8(a)(3) and (1) of the Act when it discharged Sides.
3 The Respondent has excepted to the judge’s conclusion that Paul
Smith was a supervisor, and that Smith engaged in unlawful surveil-
lance of employees’ union activities. In his amended complaint, the
General Counsel alleged that Smith created the impression of surveil-
lance. See GC Exh. 26, par. 9. We conclude, based on Smith’s agency
status, and without regard to his supervisory status, that the record
sufficiently demonstrates that Smith’s attendance at the union meeting
in his capacity as the Respondent’s agent created the impression of
surveillance. Accordingly, we find it unnecessary to pass on the
judge’s finding that Smith was a supervisor within the meaning of Sec.
2(11) of the Act. We shall modify the judge’s Conclusion of Law 6 to
conform to the violation found.
4 We shall modify the judge’s recommended Order to conform to the
violations found, to correct inadvertent errors, and to conform to Indian
Hills Care Center, 321 NLRB 144 (1996).
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 6.
“6. By creating the impression that Respondent was
engaging in surveillance of its employees, the Respon-
dent violated Section 8(a)(1) of the Act.”
ORDER
The National Labor Relations Board orders that the
Respondent, St. George Warehouse, Inc., Kearny, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees about their
membership in, or activities on behalf of, Merchandise
Drivers Local 641, International Brotherhood of Team-
sters, the Union.
(b) Promising increased benefits and improved terms
and conditions of employment to its employees to induce
them not to select the Union as their collective-
bargaining representative.
(c) Soliciting grievances from its employees concern-
ing wages, hours, and other terms and conditions of em-
ployment to induce them not to select the Union as their
collective-bargaining representative.
(d) Creating the impression that its employees’ union
activities are under surveillance.
(e) Engaging in a program of issuing written warnings
to its employees rather than its customary oral warnings,
because of its employees’ membership in, and activities
on behalf of, the Union.
(f) Promulgating and distributing to its employees an
unlawful no-solicitation, no-distribution clause because
of its employees’ membership in, and activities on behalf
of, the Union.
(g) Issuing written warnings to its employees because
of their membership in, and activities on behalf of, the
Union.
(h) Discharging its employees because of their mem-
bership in, or activities on behalf of, the Union.
(i) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Within 14 days of this Order, offer to Leonard
Sides and Jesse Tharp full reinstatement to their former
jobs or, if such jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(b) Make whole Leonard Sides and Jesse Tharp for any
loss of earnings and other benefits resulting from their
discharges less any net interim earnings, plus interest.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Leonard Sides and Jesse Tharp, and any reference to
written warnings issued to Sides and Tharp from Febru-
ary 2, 1999, until their discharges and, within 3 days
331 NLRB No. 55
ST. GEORGE WAREHOUSE

455
thereafter, notify them in writing that this has been done
and that the discharges and warnings will not be used
against them in any way.
(d) Rescind its unlawful no-solicitation, no-distribution
rule, remove it from its employee manual, and notify the
employees in writing that the rule is no longer being
maintained.
(e) Preserve and, within 14 days of any request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Kearny, New Jersey facility, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained 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
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail at its own expense a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since February 2, 1999.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the Regional Direc-
tor for Region 22 shall, within 14 days from the date of
this Order, open and count the ballots of Leonard Sides
and Jesse Tharp, and shall prepare and serve on the par-
ties a revised tally of ballots, and issue the appropriate
certification.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

5 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.”

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
concerted activities.

WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT promise increased benefits and im-
proved terms and conditions of employment to employ-
ees to induce employees not to select the Union as their
collective-bargaining representative.
WE WILL NOT solicit grievances from employees
concerning wages, hours, and other terms and conditions
of employment to induce them not to select the Union as
their collective-bargaining representative.
WE WILL NOT create the impression that we are en-
gaged in surveillance of our employees’ union activities.
WE WILL NOT engage in a program of issuing written
warnings to employees rather than our customary oral
warnings because of employees’ membership in, and
activities on behalf of, the Union.
WE WILL NOT promulgate and distribute to employ-
ees an unlawful no-solicitation, no-distribution clause
because of employees’ membership in, and activities on
behalf of, the Union.
WE WILL NOT issue written warnings to employees
because of their membership in, and activities on behalf
of, the Union.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Merchandise Drivers
Local 641, International Brotherhood of Teamsters, or
any other labor organization.
WE WILL, within 14 days of the date of the Board’s
Order, offer Leonard Sides and Jesse Tharp full rein-
statement 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 privi-
leges previously enjoyed.
WE WILL make Leonard Sides and Jesse Tharp whole
for any loss of earnings and other benefits resulting from
their discharges, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Leonard Sides and Jesse Tharp, and any
reference to written warnings issued to Sides and Tharp
from February 2, 1999, until their discharges, and WE
WILL, within 3 days thereafter, notify them in writing
that this has been done and that the discharges and warn-
ings will not be used against them in any way.
WE WILL rescind our unlawful no-solicitation, no-
distribution rule, and remove the rule from our employee
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

456
manual, and WE WILL notify you in writing that the rule
is no longer being maintained.
ST. GEORGE WAREHOUSE, INC.

Julie L. Kaufman, Esq., for the General Counsel.
Jedd Mendelson, Esq. (Grotta, Glassman & Hoffman), for the
Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me in Newark, New Jersey, on July 28
and August 4, 6, 10, and 11, 1999.
On various dates in 1999, Merchandise Drivers Local 641,
International Brotherhood of Teamsters (the Union), filed un-
fair labor practice charges against St. George Warehouse, Inc.
(Respondent).
On May 28, 1999, a complaint issued against Respondent al-
leging violations of Section 8(a)(1) and (3) of the Act. On June
10, 1999, a report on challenged ballots and an order consoli-
dating cases was issued.1
On the entire record in this case, including my observation of
the demeanor of the witnesses, and a consideration of briefs
filed by counsel for the General Counsel and counsel for Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New Jersey Corporation with an office and
warehouse facility located in Kearney, New Jersey, where it is
in the business of warehousing various commodities. Respon-
dent annually performs warehousing services, valued at in ex-
cess of $50,000 in States, other than the State of New Jersey. It
is admitted, and I find that Respondent is engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted, and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
Respondent warehouses customer’s commodities at its South
Kearny, New Jersey facility. Respondent employs approxi-
mately 40-day-shift and night-shift unit employees at its facil-
ity. Between 20 to 30 of these employees are employed on the
day shift.
Anthony Fortunato is Respondent’s owner. The operation is
run day-to-day by Executive Vice President Linda Kuper.
Steve Kuper is the terminal manager. He oversees the ware-
house and supervises three departmental supervisors, Bob
Chapman, Gabe Maldonado, and Jimmy Ciaramella. All of the
above individuals are supervisors within the meaning of Sec-
tion 2(11) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The First Discharge of Leonard Sides
Leonard Sides began working at Respondent’s South Kearny
facility around July 27, 1997, as a forklift operator on the ex-
port receiving side of Respondent’s warehouse. At the time of
his February 2, 1999 discharge, Sides worked on the day shift.

1 The complaint allegations alleging the unlawful suspension and
discharge of employee James Olbert were withdrawn during the course
of this trial.
Sides’ immediate supervisor from about June 1998 until the day
of his discharge was Gabriel Maldonado.
Sometime in January, Sides approached a group of outside
drivers standing near one of Respondent’s loading bays and
asked them when someone from the Teamsters Union was go-
ing to organize Respondent’s employees. Jan Katz, an outside
driver and representative of Local 641 of the Teamsters, re-
sponded that he was the man to see about such organizing.
Katz then handed Sides a number of union cards, explaining
that Sides should distribute the cards to interested employees
and, after the employees had signed the cards, return the signed
cards to Katz. Sides subsequently distributed these cards to
most Respondent’s employees and returned the signed cards to
Katz. Sides estimated that he distributed about 30 union au-
thorization cards to his coworkers. Between about mid-January
until the end of March, Sides had about four or five conversa-
tions with Katz at Respondent’s export dock regarding organiz-
ing Respondent’s employees. Sides signed a card for the Union
in January 1999.
Sometime around mid-January 1999, Sides asked his co-
worker Jesse Tharp to sign a union authorization card. Tharp
volunteered to distribute cards to the night-shift employees with
whom he was familiar. Sides gave cards to Tharp approxi-
mately two or three times between mid-January and early Feb-
ruary while both men were on the export dock. Tharp returned
the signed cards to Sides. Respondent’s own witness, em-
ployee Percell “Rob” Wallace Jr. credibly testified that “Lennie
and Jessie, both, was giving out the cards.” Wallace further
testified that Respondent’s employees were talking about the
Union openly, and in Respondent’s facility both before and
after the cards were distributed by Sides and Tharp.
Around the time the cards were being distributed, in early
February, Terminal Manager Steve Kuper was informed by
Export Supervisor Maldonado that according to outside truck-
drivers with whom he had spoken, the warehouse employees
were organizing. Kuper also overheard employees talking
about the Union while he was standing at the import-loading
door in the middle of the warehouse. Maldonado testified that
around the first or second week of February, the outside truck-
drivers would tell him that Respondent’s employees were
“bringing in the Union.”
On or about February 2, Respondent’s owner, Anthony For-
tunato, was approached by two of his long-time employees,
Paul Smith and Jerry Hayes. Hayes and Smith each showed
Fortunato a blank Local 641 authorization card and advised him
that Leonard Sides was distributing the union cards to the
warehouse employees. Fortunato admitted that he then asked
Hayes and Smith “[w]ho’s signing the cards and who’s getting
the cards.”
I find Fortunato’s questions clear and blatant unlawful inter-
rogation in violation of Section 8(a)(1). Greenfield Die & Mfg.
Corp., 327 NLRB 237 (1998); Americold Services, 323 NLRB
1095 (1997); and Rossmore House, 269 NLRB 1176 (1984).
Fortunato admitted that after immediately learning that Sides
was distributing union cards in the warehouse, he went directly
out onto the dock where Sides was working, accompanied by
Supervisor Steve Kuper, during the middle of the workday, and
holding a blank union card up in his hand to get Sides’ atten-
tion. He asked Sides angrily if he was the person who was
passing out cards. Sides admitted he was distributing union
cards. Fortunato, in the presence of Kuper, told Sides that Re-
spondent was not a union shop, that he did not want it to be a
ST. GEORGE WAREHOUSE

457
union shop, and though 2 to 3 hours remained in Sides’ shift,
Fortunato told Sides that he should punch out and go home.
Kuper was present during the entire conversation.
Fortunato denied he fired Sides. He testified that he merely
waved his hand and walked away.
Sides, accompanied by Kuper, went to the timeclock and
punched out. Kuper continued to accompany Sides until he left
Respondent’s facility. As Sides was leaving, he told Kuper that
he would see him in court.
Kuper then went back to the office and told Fortunato about
Sides’ “see him in Court” statement. Fortunato then called his
attorney to speak to him about what had just taken place.
Sometime later that day, Sides called to get a reaffirmation
from Fortunato that he was terminated. Fortunato told him he
was not fired; that he would be paid for the hours missed, and
could return to work.
Sides impressed me as a totally credible witness. I was im-
pressed with his demeanor. His testimony was detailed and
consistent during both direct and cross-examination. Moreover,
and most importantly, he freely admitted his chronic lateness
and mistakes when confronted with them during cross-
examination.
Fortunato did not impress me favorably. His testimony that
he merely waved his hands and walked away from Sides does
not ring true. Why else would Sides punch out in the middle of
the day and be accompanied by Kuper. Such conduct is simply
consistent with a discharge. Further, why would Fortunato
offer to pay Sides for the time he missed, if he had not initially
terminated him. Fortunato’s conduct is consistent with a man
trying to mitigate damage already inflicted. In this regard,
Fortunato’s offer to Sides was made only after he contacted his
attorney. For these reasons, I credit Fortunato’s testimony only
where he makes admissions against his own interest.
I discredit Kuper’s testimony that he did not overhear Fortu-
nato’s conversation with Sides. Why else would he escort him
to the timeclock if he did not overhear Fortunato terminating
Sides. Fortunato probably instructed Kuper to escort Sides out.
As set forth above, such conduct is consistent with a discharge.
Moreover, Kuper, when questioned, was totally unable to ex-
plain why he escorted Sides to the timeclock, and then out of
the plant. I thus find Kuper is not a credible witness, and credit
him only when his testimony is to admissions against Respon-
dent’s interest.
Accordingly, I conclude based on the credible testimony set
forth above, that Fortunato did discharge Sides.
As set forth above when Fortunato initially spoke with Sides,
he asked him if he was the individual passing out union cards.
Such conduct by Respondent owner when accompanied by an
unlawful discharge, set forth and described below constitutes an
unlawful interrogation in violation of Section 8(a)(1) of the
Act. See Greenfield Die, supra; Americold Services, supra; and
Rossmore House, supra.
It is well-established Board law that the General Counsel
must show by a preponderance of the evidence that protected
activity was a motivating factor in an employer’s decision to
discipline or discharge an employee. Transportation Manage-
ment Corp. v NLRB, 462 U.S. 393 (1983); Wright Line, 251
NLRB 1082 (1980); See also Dana Corp., 318 NLRB 312, 316
(1995). Such a showing establishes an 8(a)(3) violation unless
the employer can show as an affirmative defense that it would
have discharged the employee for legitimate reasons regardless
of the protected activity.
Applying these principles to Sides’ initial discharge, knowl-
edge is established by employees Smith and Hayes telling For-
tunato of Sides’ union activities. His animus is established by
Fortunato’s unlawful interrogation of Smith, Hayes, and Sides.
Fortunato’s simultaneous interrogation of Hayes, Smith, and
Sides coupled with his statement that he did not want a union
shop followed by his discharge of Sides in the same breath,
could not establish a stronger union motivating factor. It is
virtually an irrebuttable admission. Fortunato essentially told
Sides that he was aware of Sides union activities, wouldn’t
tolerate a union shop, and that he was being fired because of
these activities on behalf of the Union. A clearer case for a
discriminatory discharge cannot be made out.
Respondent’s defense for this is that, “I didn’t discharge
Sides.” This testimony that he merely waved at Sides is dis-
credited as set forth and described above in detail.
Accordingly, I conclude that Respondent has failed to meet
its Wright Line burden, and conclude that Sides was discharged
on February 16, in violation of Section 8(a)(1) and (3) of the
Act.
B. The Discharge of Tharp
At the time of his discharge on March 16, 1999, Jesse Tharp
had been working at Respondent’s South Kearny warehouse for
approximately 6 years as a day-shift loader on the export side
of the warehouse. Tharp’s immediate supervisor from about
August 1998 until the day of his discharge was Robert Chap-
man.
The evidence establishes that Respondent was aware of
Sides’ activities as of February 2. This is established by his
testimony that Hayes and Smith told Fortunato about such ac-
tivity. Moreover, during the February period Steve Kuper was
informed by Supervisor Maldonado that he had been informed
of the Union’s attempt to organize the shop. Respondent’s
witness, employee Wallace, testified that the only employees
distributing union cards were Sides and Tharp.
I conclude that knowledge of Tharp’s activities could be in-
ferred. Respondent undoubtedly acquired knowledge of such
activity the same way it acquired knowledge of Sides’ activity.
Employees of Respondent told Fortunato and other supervisors
about Tharp’s union activities.
In this case, the small shop theory seems applicable. See
Wiess Plow Welding Co., 123 NLRB 617, 618 (1959); Coral
Gables Convalescent Homes, 234 NLRB 1198, 1199 (1978);
and Permanent Label Corp., 248 NLRB 118, 134 (1980).
If more evidence need be established about Respondent’s
knowledge of Tharp’s union activity, Tharp credibly testified
that on various occasions while he was distributing union cards,
he noticed Steve Kuper, and Chapman watching him. Tharp
saw Steve Kuper on more than three occasions when he was
distributing union cards at the breaktable. On a number of
these occasions, Tharp credibly testified he saw Kuper standing
approximately 80 feet away at the import door, staring at him.
On different occasions, Tharp saw Kuper and Chapman walk-
ing about 5 feet from the breaktable and staring at him as he
openly distributed union cards. Once when Tharp distributed
union cards at the mechanics’ room, he noticed Steve Kuper
walk past and, from a distance of about 10 feet away, stopped
and stared at him and the employee to whom he was speaking.
On one of the occasions when Tharp noticed Supervisor Chap-
man watching him on the export dock, Chapman walked to-
wards Tharp’s Hilo until he was within 5 feet of where he and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

458
another employee were exchanging cards. When the other
employee left, Chapman walked away. Finally, on each occa-
sion when Tharp handed signed union cards back to Sides,
Tharp noticed Chapman staring at him and Sides from a dis-
tance of about 15 to 20 feet.
Towards the end of the day on March 16, 1999, Supervisor
Chapman pulled Tharp aside while he was working and, ac-
cording to both Tharp and Chapman, told Tharp that what he
was about to say “was coming from the office.” Chapman then
told Tharp that he was being discharged because his work pace
had slowed down. Tharp responded that he had kept the same
production pace over the past 6 years and that Respondent had
never had a problem with the speed of his work. When Chap-
man disagreed with Tharp’s statement, Tharp asked if Chapman
was calling him a liar. Chapman then raised the fact that Tharp
was often late by 5 to 10 minutes. Tharp responded that this
was a situation that had been ongoing for almost 6 years and
had never been a problem before. Prior to his discharge, Tharp
had never been disciplined for slow work. Until Tharp’s dis-
charge, neither Chapman nor any other of member Respon-
dent’s management had ever mentioned to Tharp that they per-
ceived his production pace as having slowed down. Chapman
then said that he was tired of speaking with Tharp and, after
again telling Tharp that he was fired, walked away. Tharp did
not receive a discharge notice. During his discussion with
Chapman regarding his discharge, Tharp testified he was in no
way insubordinate and did not raise his voice to Chapman when
defending himself against Chapman’s accusations.
A termination notice signed by Chapman and dated March
16, 1999, was included in Tharp’s personnel file. Interestingly,
Chapman checked off “substandard performance” and “atti-
tude” on the notice, but did not check “lateness” as a basis for
Tharp’s discharge, though he wrote as the bases for discharge
that Tharp’s performance had slowed and that Tharp was con-
stantly coming in late. However, there is no mention in the
notice narrative of Tharp’s alleged insubordination and poor
attitude, the basis asserted by Chapman for his decision to ter-
minate Tharp on the spot. Even Chapman admitted Tharp had
never been disciplined for his attitude since Chapman had been
supervising him.
C. The Second Discharge of Leonard Sides
On March 31 Supervisor Chapman asked Sides to write up a
freight load. Writing up a freight load was not Sides’ regular
job and he only performed it on an as needed basis, perhaps
once every couple of weeks.
At the end of the day, Supervisor Maldonado, without prior
warning, called Sides into the office and told him that he was
being discharged for making too many mistakes. Maldonado
gave Sides a discharge notice and his pay after which Sides
proceeded to punch out. The discharge notice, which was writ-
ten and signed by Steve Kuper, stated the reason for Sides’
discharge was due to the “number of warnings and mistakes”
and specifically references three mistakes attributed to Sides on
March 31. Of these three mistakes, two involved miscounts of
freight. Sides candidly admitted that on March 31 he had in
fact miscounted two different shipments of freight as described
in the termination notice.2

2 This is just one of a number of examples of Sides’ candor. I was
very impressed with Sides’ credibility.
It is undisputed that when Supervisor Maldonado became
aware of each of these miscounting mistakes, he brought them
to Sides’ attention and asked Sides to correct the mistakes.
Sides did so. At no time prior to his actual discharge on March
31, was Sides informed by Maldonado or any other Respondent
supervisor that he would be disciplined or discharged due to
these mistakes. He was given neither oral or written warning.
Sides had made miscounting mistakes in the past similar to the
mistakes that he made on March 31, but had never been disci-
plined. Rather, in the past, once the mistake was caught, Sides
would merely be asked to correct the mistake. It is admitted
that the March 31 mistakes did not cost Respondent any money
or customer complaints.
Sides credibly explained, without contradiction, that mis-
counting mistakes are frequently made by himself and by other
employees and that he is unaware of another employee being
disciplined, let alone discharged for such a mistake. Sides
stated that miscounting mistakes occur when the freight writer
is dealing with numerous pieces of loose freight such as the
freight Sides miscounted on March 31.
The only other employee ever discharged for such a mistake
was a probationary employee.
The third mistake noted on Sides’ termination notice con-
cerns Sides’ alleged failure to properly record hazardous mate-
rials information on an arrival notice. Sides credibly denies
making any mistake regarding the writing up of this hazardous
freight. When Sides received the arrival notice for the hazard-
ous materials, there were no markings on the arrival notice
indicating the freight was hazardous.
Given Respondent’s knowledge of Sides’ and Tharp’s union
activities, the intense animus, the willingness to fire union ad-
herents immediately on becoming aware of their union activity,
discharging the only two active union organizers engaging in
systemative interrogation and other 8(a)(1) activity described in
detail below, the long length of employment of Sides and
Tharp, and the timing of the discharges, I conclude the General
Counsel has met its Wright Line burden and established a very
strong prima facie case.
Respondent contends Sides was terminated because of being
a slow worker, continued lateness, and the freight writing mis-
takes on March 31, the date he was discharged.
At first it should be noted that Respondent does not have a
uniform policy as to what constitutes excessive lateness. Addi-
tionally, because Respondent does not keep a record of when
verbal warnings are issued, there is no way to know whether
any employee had received such discipline. In this regard, the
“no previous warnings” boxes on Respondent’s written disci-
pline forms refer to the absence of prior written discipline only.
The day shift on which Sides was employed commences at 8
a.m. Sides’ supervisor, Gabriel Maldonado, testified that he
considers 5 to 10 minute lateness excessive, and warranting
discipline. On February 10, after Sides’ initial discriminatory
discharge, Maldonado gave Sides a written warning for being
late 3 days. Sides was late 12 minutes on Monday, February 1,
1 day before Respondent became aware of his union activity
and discriminatorily discharged him. However, Maldonado
was unable to identify which three February latenesses caused
Sides to receive the February 10 warning. Therefore, I presume
the warnings were for latenesses after his February 2 discharge.
Sides only prior written warning for lateness was signed by
Maldonado on August 27, 1998, when Sides was 1 hour and 39
minutes late.
ST. GEORGE WAREHOUSE

459
On March 19 Maldonado gave Sides a written final warning
for lateness. The warning, which is actually signed by Steve
Kuper, states that it is for repeated latenesses and that Sides
had, at the time of the warning, 16 latenesses since January 1,
1999. The warning also states that Fridays are very busy.
Sides admitted that he was about 1-1/2 hours late on Friday,
March 19, but states that he called in to tell Respondent that he
would be late.
However, during the period January 1, 1998, through March
31, 1999, Sides had been more than 1 hour late on eight differ-
ent occasions, sometimes twice in 1 month (September 1998).
Sides had never received any discipline for those latenesses.
During the same period of time, Sides’ coworkers, Paul Smith
and Purcell Wallace, had each been more than 1 hour late to
work on 9 and 14 different occasions, respectively. Kuper, who
supervised Smith, and Chapman, who supervised Wallace, both
testified that no written discipline for latenesses had been given
to either employee since they had begun supervising them.
Maldonado and Kuper testified that because Thursdays and
Fridays are the busiest days of the week for the receiving de-
partment, which Maldonado supervises, it is most important to
be on time on those days. However, Sides had been over 1
hour late on Friday, August 14, October 15, and December 18,
1998, and on Friday, January 15, 1999, but had never been
disciplined for these latenesses, all of which took place before
Sides’ union activity.
I conclude that Respondent condoned Sides’ lateness, until
Respondent became aware of his union activity. Mountaineer
Steel, Inc., 326 NLRB 787 (1998).
On March 31, Export Supervisor Robert Chapman asked
Sides to write up freight. Writing up freight was not Sides’
regular job and he only performed it on an as-needed basis,
perhaps once every few weeks.
At the end of the day on March 31, Maldonado called Sides
into the office and told him that he was being discharged for
making too many mistakes. Maldonado gave Sides a discharge
notice and his pay after which Sides proceeded to punch out.
The discharge notice, which is written and signed by Steve
Kuper, states the reason for Sides’ discharge was due to the
“number of warnings (I assume lateness) and mistakes” and
specifically references three mistakes attributed to Sides on a
single day, March 31. Of these three mistakes, two involved
miscounts of freight. Sides candidly admitted that on March
31, he had in fact miscounted two different shipments of freight
as described in the termination notice. It is undisputed that
when Maldonado became aware of each of these miscounting
mistakes, he brought them to Sides’ attention and asked Sides
to correct the mistakes that Sides did. At no time prior to his
actual discharge on March 31, was Sides informed by
Maldonado or any other management that he would be disci-
plined or discharged due to these mistakes. Sides had made
miscounting mistakes in the past, similar to the mistakes that he
made on March 31 and had never been disciplined. Sides
credibly testified that miscounting mistakes are frequently
made by himself and by other employees and that he is unaware
of another employee being disciplined, let alone discharged for
such a mistake. Sides stated that miscounting mistakes occur
when the freight writer is dealing with numerous pieces of
loose freight such as the freight Sides miscounted on March 31.
Rather, in the past, once the mistake was caught, Sides, in all
other cases, except for March 31, would merely be told to cor-
rect the mistake. It is conceded that Respondent did not have to
pay any claims because of Sides’ two March 31 miscounting
mistakes.
I conclude that Respondent condoned miscounting mistakes
by Sides and other employees and only relied on such mistakes
for discipline after becoming aware of Sides’ union activity.
Mountaineer Steel, Inc., supra.
The third mistake noted on Sides’ termination notice con-
cerns Sides’ alleged failure to properly record hazardous mate-
rials information on an arrival notice. Sides denies making any
mistake regarding the writing up of this hazardous freight.
When Sides received the arrival notice for the hazardous mate-
rials, he credibly testified that there were no markings on the
arrival notice indicating that the freight was hazardous. Sides
credibly testified that the “Hazardous” stamp that is now on the
arrival sheet for the freight in issue, was not on the sheet when
it was given to him. The arrival notice stated that the freight
shipment contained four pieces and Sides counted four skids in
front of him. Sides then measured the freight and entered the
measurements on the arrival notice. He also examined all
pieces of the freight for any markings and discovered a 3-by-5
inch white label, which stated “Thailand” on it. The white label
also had typewritten on it Hazardous” and a “UN” or code
number indicating the specific type of hazardous materials
contained in the freight.
Sides recorded all of this information, including the hazard-
ous information, in the “remarks” section of the arrival notice.
While Sides explained that usually, a hazardous material’s label
would be red, he steadfastly maintained that there were no red
or even green placards or labels on this freight indicating that it
was hazardous and that the only label he saw indicating that the
freight contained hazardous materials was the 3-by-5-inch
white label described above. Respondent’s supervisor, Robert
Chapman, corroborated Sides’ testimony when Chapman testi-
fied that he and Maldonado jointly examined the hazardous
freight for markings, and that Chapman saw on the freight “a”
UN number printed on white labels which also contained in-
formation that this freight was a liquid, class 3.2 hazardous
freight. Sides was never asked to correct any mistake regard-
ing the hazardous freight nor was he even informed that he had
made any mistake regarding this freight until Maldonado dis-
charged him later that day. While Maldonado claims that he
gave Sides a verbal warning for the first miscounting mistake,
Maldonado stated that he did not give Sides any warning for
this second, hazardous mistake. Maldonado admitted that Re-
spondent did not have to pay any claims regarding any alleged
mistake in writing up the hazardous freight.
Sides has, in the past, made mistakes in writing up hazardous
freight, including failing to mark “hazardous” on the arrival
sheet or forgetting to note the marks in the “remarks” section of
the arrival sheet, mistakes he did not make on March 31. Sides
has not been disciplined for these past mistakes in writing up
hazardous freight. Maldonado testified that Sides’ alleged mis-
take about the hazardous freight was what made him consider
discharging Sides and that if Sides had not made three mistakes
in one day, he would not have been discharged. Sides, in unre-
butted testimony, asserted that around the spring or summer,
1998, he made three freight writing mistakes in one day and,
rather than being disciplined or discharged, was simply chided
by Linda Kuper.
Steve Kuper and Maldonado asserted that although Sides’
three mistakes in 1 day, and particularly the hazardous material
mistake, caused them to decide to discharge Sides. Sides’ en-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

460
tire record was considered in deciding that he should be dis-
charged. In this regard, Maldonado stated that in addition to
the three March 31 mistakes, the basis for Sides’ discharge
were as follows: latenesses; attitude; slowness; carelessness;
and the three alleged March 31 mistakes. The issue of Sides’
latenesses has already been fully discussed above.
Again, the credible evidence, including Respondent’s re-
cords and the credible testimony of Sides, establish that until
the advent of union activity such conduct had always been con-
doned in the past. Mountaineer Steel, supra.
While Maldonado seemed to dwell on how slow Sides’ per-
formance was, he never issued Sides a single written warning
regarding his slowness. Indeed, it appears from Maldonado’s
own testimony that prior to Sides’ union activities, Sides’ al-
leged “slowness” was condoned not only by Maldonado, but by
Maldonado’s predecessor.
Maldonado then testified, as an afterthought, that he and Ku-
per considered Sides’ carelessness in running over a co-
worker’s foot with a Hilo on December 8, 1998, and damaging
freight on December 10, 1998, as an additional reason for his
discharge. Based on Respondent’s own records, it appears that
Sides received first written warnings for each incident. How-
ever, former employees Gerard Murphy’s and Andre Gladden’s
disciplinary records support a finding that Sides was disparately
treated. Here, within a 2-month period (November 1997
through January 1998) Murphy received numerous verbal
warnings, a written warning and a suspension for careless op-
eration of a Hilo. In fact, according to November 10, 1997
suspension notice, his carelessness cost Respondent $8000 in
preliminary claims for damage to customer freight. Despite
this, Murphy was not terminated for carelessness, one of the
alleged basis for Sides’ discharge. Gladden too, was not dis-
charged when, due to his negligence, he damaged a drum, caus-
ing its entire contents of lavender oil to spill and soak the re-
mainder of the freight already loaded on a container.
I conclude that in this connection Respondent, assuming that
such Hilo incident occurring in 1998 was actually considered as
a reason for Sides’ discharge, was disparately treated because
of his union activities. Woodlands Health Center, 325 NLRB
351, 362 (1998); Dlubak Corp., 307 NLRB 1138, 1155, 1156
(1992).
On February 10, 1999, Tharp was given a written warning
regarding lateness. Interestingly, not only did Sides and Tharp
both receive February 10, 1999, written warnings for lateness,
but the narratives contained on the warnings themselves are
identical. I conclude such identical warnings are additional
evidence of Respondent’s plan to set up both employees for
discharge because of their union activities. Tharp’s timecards
show that while he was late 12 times in February 1999, he was
also late 16 times in January 1998, 19 days in February, 15
days in March, 22 days in April, 19 days in May, 18 days in
June, 9 days in July, 7 days in August, 21 days in September,
13 days in October, 5 days in November, and 18 times in De-
cember 1998, and late 16 times in January 1999, all before his
union activity. Aside from his February 10 warning, Tharp
never received any discipline for either his 1998 or his January
1999 latenesses. The only other written discipline that Tharp
had received for lateness during his almost 6 years employment
with Respondent was given to him in 1994. Tharp candidly
testified that during his employment with Respondent, he re-
ceived approximately six verbal warnings regarding lateness.
Tharp’s timecards for the period of time January 1, 1998,
through March 16, 1999, support Tharp’s assertion that he was
very often 5 or 10 minutes late and that this had been an ongo-
ing occurrence for almost 6 years.
Again it is crystal clear, and I conclude that Tharp’s late-
nesses were always condoned by Respondent until he began
distributing union cards. Mountaineer Steel, Inc., supra.
Tharp’s personnel file contains a March 8, 1999, written
warning for carelessness. The warning was issued by Steve
Kuper, and is unsigned by Tharp who denied ever seeing or
being informed of it. I credit Tharp. Tharp candidly admitted
that he accidentally damaged a drum while loading freight, and
that Fortunato and Chapman were aware of this. Both Fortu-
nato and Chapman testified that Tharp’s damaging the drum
was an accident.
I find that in view of such admission, any contention that
such accident was considered to any extent in connection with
Tharp’s discharge would simply be additional evidence of Re-
spondent’s discriminatory motivation.
On March 16, 1999, near the end of the day, Chapman pulled
Tharp aside while he was working, and according to both Tharp
and Chapman, told Tharp that what he was about to say was
“coming from the office.” Chapman then told Tharp that he
was being discharged because his work pace had slowed down.
Tharp responded that he had kept the same production pace
over the past 6 years and that Respondent had never had a prob-
lem with the speed of Tharp’s work.
Indeed there is no record of any warnings for such alleged
slow work throughout Tharp’s 6-year employment tenure with
Respondent. Moreover, I conclude that Chapman’s use of the
phrase “coming from the office” is further evidence of a dis-
criminatory motivation.
Chapman then raised the fact the Tharp was often late by 5
to 10 minutes. Tharp credibly testified that this was a situation
that had been ongoing for almost 6 years and had never been a
problem before. Chapman then said that he was tired of speak-
ing with Tharp and, after again telling Tharp that he was fired,
walked away. Tharp did not receive a discharge notice. As set
forth above, I have concluded that Respondent condoned
Tharp’s habitual latenesses until knowledge of Tharp’s union
activity.
To rebut Respondent’s Wright Line defense, counsel for the
General Counsel contends that Sides and Tharp were generally
treated disparately with respect to other employees.
Sides, during his approximately 20-month tenure with Re-
spondent, received three written disciplines prior to his February
10 and March 19 disciplines and March 31 discharge. During
Tharp’s almost 6-year employment with Respondent he received
five written disciplines prior to his February 10 and March 8
disciplines and March 16 discharge. However, many of Re-
spondent’s current employees have received either the same or
greater numbers of written discipline during shorter periods of
time and, in some instances, for conduct which allegedly caused
Sides and Tharp to be discharged, yet, these employees them-
selves have not been discharged. Interestingly, much of this
discipline has been issued to current employees since February
or early March—following Fortunato’s February 2 interrogation
of Sides. For example, Jesus Guzman received four written
warnings during his first 8 months of employment, the first three
of that were issued to him during his probationary period, in
March 1999, for latenesses and walking off the job prior to
completing his assignment. John Bevan also began receiving
written discipline in March 1999 his 6th month of employment,
ST. GEORGE WAREHOUSE

461
and received a total of five writeups between March 19 and June
25. Tony Kirkland who was hired on August 14, 1998, received
five written disciplines between November 1998 and June 1999.
Kirkland received his first of four written warnings for lateness
on March 19, 1999. Franco Pericles received four written warn-
ings for lateness between October 6, 1998, and April 28, 1999,
and one warning for failing to call or show up for work. During
the first month of his probationary period, Edwin Costillo re-
ceived three written warnings, two of which were for being late
6 days. Seny Calcano received eight written warnings during
the 7 months between November 1998 and June 1999. The first
six of these warnings are for latenesses. During his probationary
period in 1998, Melvin Ruiz received a written warning for be-
ing a no call/no show and a suspension for lateness. After he
passed his probation, Ruiz received a suspension for a second no
call/no show in 1998, and in 1999, a third lateness warning for
incorrectly loading freight on the wrong containers, thereby
causing Respondent to have to pay to retrieve the freight and
send it to the correct destination. Hector Santiago, who was
hired on July 1, 1998, received his first written warning on
March 1, 1999, and between March through June, received a
total of four warnings and one suspension. Ramone Solane was
hired on February 18, 1998, and received his first written warn-
ing on March 10, 1999. During the 3-1/2-month period between
March 10 and June 29, Solane received seven written warnings
and one suspension. While most of Solane’s discipline was for
latenesses, Solane received one warning for damaging cargo,
thereby causing a spill, which Respondent was then responsible
for cleaning up, and one warning for walking off the job prior to
the end of his shift. Richard Zapatier was hired on October 30,
1997, and did not receive written discipline until February 23,
1999, when he received the first of three written warnings given
during a 5-month period, for walking off the job prior to com-
pleting his assignment. Zapatier’s other two warnings were
dated March 10 and July 19, 1999. To the extent that the above-
named employees, especially, Guzman, Bevan, Santiago, So-
lane, and Zapatier began receiving discipline in February or
March, some of which was similar to that discipline relied on by
Respondent in discharging Tharp and Sides, I conclude that such
discipline is bogus and would not have been issued to the em-
ployees, but for the union activity. I further conclude because of
the specious nature of much of this discipline, particularly the
fact that it was issued after the union organizing began, it cannot
be relied on in evaluating whether Respondent regularly issues
such discipline to its employees.
Additionally, assuming that all written discipline in Sides’
and Tharp’s personnel files were actually issued to those em-
ployees, Sides, during his approximately 20-month tenure with
Respondent, received three written disciplines prior to his Feb-
ruary 10 and March 19 disciplines and March 31 discharge.
During Tharp’s almost 6-year employment with Respondent,
Respondent’s records establish he received five written disci-
plines prior to his February 10 and March 8 disciplines and
March 16 discharge. However, Respondent’s records also es-
tablish many of Respondent’s current employees have received
either the same or greater numbers of written discipline during
shorter periods of time and, in some instances, for conduct
which allegedly caused Sides and Tharp to be discharges, yet
none of these employees were discharged. I find this evidence
of disparate treatment that further establishes a discriminatory
motivation. See Woodlands Health Center, supra; and Dlubak
Corp., supra.
Moreover, Respondent’s reliance on certain employee dis-
charge records in support of its discharges of Sides and Tharp,
is misplaced as the employees discharged were all probation-
ary, and therefore, are distinguishable from Sides and Tharp.
Respondent’s reliance on the termination and discipline records
of Gerard Murphy and Andre Gladden is similarly misplaced.
Murphy and Gladden were both discharged for theft of cus-
tomer property, an offense not raised in regard to Sides or
Tharp.
I conclude Respondent’s reliance on such records establishes
further evidence of disparate treatment with respect to dis-
charges. See Woodlands Health Center, supra; and Dlubak
Corp., supra.
Thus, I conclude that rather than establishing that the dis-
charges of Sides and Tharp would have taken place notwith-
standing these employees’ union activities, Respondent’s de-
fense strongly reinforces the General Counsel’s virtually in-
surmountable prima facie case.
In short, I conclude that the General Counsel has established
with absolute certainty that by discharging Sides and Tharp,
Respondent has violated Section 8(a)(1) and (3) of the Act.
Respondent’s Written Warning System
In determining whether discipline issued to employees is
unlawful within the meaning of Section 8(a)(3) and (1) of the
Act, the Board relies on the same standard it uses in evaluating
the lawfulness of an employer’s reasons for discharge. Wright
Line, Wright Line, 251 NLRB 1082 (1980); and Dana Corp,
supra.
As set forth, and established above, there was a marked in-
crease in the volume of written discipline issued by Respondent
to its unit employees following Fortunato’s February 2 interro-
gation of Sides and particularly following the March 8 service
of the representation petition on Respondent and the March 19
Stipulated Election Agreement.
Additionally, a large portion of this written discipline is for
conduct, such as lateness, which, relying on Tharp’s, Sides’
Wallace’s, and Smith’s records, Respondent previously con-
doned or at most gave verbal warnings.
Thus, based on the timing of the increased volume of written
discipline in conjunction with Respondent’s past, more lenient
approach to issuance of discipline, I conclude that after learning
of the union organizing, Respondent, in order to deter its em-
ployees from engaging in union activities, began issuing writ-
ten, rather than verbal discipline. I conclude such conduct vio-
lates Section 8(a)(1) and (3) of the Act.
Assignment of More Difficult Loads
Tharp testified that since the end of February 1999 Respon-
dent, by its supervisor began to assign him more difficult loads,
which had the effect of slowing down his production time.
Chapman testified the loads he assigned Tharp were the
same as those he assigned to other employees.
Respondent witness, Pursell, Wallace, a good friend of
Tharp, testified that when Chapman became his supervisor in
the summer of 1998, he and Tharp, who was also being super-
vised by Chapman, assigned them the more difficult loads and
favored other employees with easier loads.
I conclude that the General Counsel did not establish through
Tharp’s conclusionary and opinionated testimony that such
work assignments were in fact more difficult tasks. Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

462
dent’s records3 introduced to establish that Respondent did not
discriminatorily assign Tharp more difficult loads are inconclu-
sive. In any event, such records were not business records,
recorded in the normal course of Respondent’s business opera-
tions, but rather summaries, prepared exclusively for this trial.
I give them no evidentiary weight.
Respondent argues that given the contradiction between
Tharp and Wallace as to when they believed such discrimina-
tion with respect to assignment of loads took place reflects
adversely, against Tharp’s credibility. I do not agree. I have
concluded that both Tharp and Wallace were credible wit-
nesses. Either witness’ testimony could be accurate. However,
even if I were to find that Tharp’s complaints began in the
summer of 1998, rather then the end of February 1999, my
impression of Tharp’s overall credibility as to the rest of his
testimony would be unaffected. Americare Pine Lodge Nurs-
ing, 325 NLRB 98 (1997).
I conclude there is insufficient evidence to establish the Gen-
eral Counsel’s contention as to the discriminatory assignment
of heavier workloads to Tharp.
The Union filed a representation petition on March 8, 1999.
Following the filing of such petition, Respondent held three
meetings with its warehouse employees concerning the Union’s
campaign. Fortunato conducted each meeting. Respondent
supervisors were also present. Fortunato testified that at the
first two meetings, the employees asked whether they could
receive various new and improved benefits. Fortunato testified
he told his employees he could not provide such benefits until
after he had received the election results. Former employee
Rigoberto Ubierra attended two of the three employee meet-
ings. Ubierra credibly testified that Fortunato opened one of
those meetings by asking the employees if any of them had
already signed a union card. According to Ubierra, when no
one responded, Fortunato then asked if any employees had
complaints regarding the job, or if there was anything they
wanted to discuss, or anything he could do for the employees.
I conclude that Fortunato’s response to employees’ questions
concerning benefits, when taken into context with his unlawful
conduct described above and below constitutes an implied
promise of benefits and is in violation of Section 8(a)(1). Sel-
kirk Metalbestos, 321 NLRB 44, 51 (1996), citing Pincus Ele-
vator & Electrical Co., 308 NLRB 684, 692 (1992), enfd. 998
F 2d 1004 (3d Cir. 1993). For the same reasons I find an im-
plied promise of benefits in violation of Section 8(a)(1) when
Fortunato asked his employees if they had any complaints re-
garding their job, or if there was anything they wanted to dis-
cuss.
I find Fortunato’s questioning of his employees as to whether
any of them had signed a union card to be a clear and unlawful
interrogation in violation of Section 8(a)(1). Greenfield Die &
Mfg. Corp., 327 NLRB 237 (1998); Americold Services, 323
NLRB 1095 (1997); and Rossmore House, 269 NLRB 1176
(1984).
The No-Solicitation Clause
Respondent’s current “Hourly Employees Manual” has been
in effect since June 1994. The manual contains a no-
solicitation and no-distribution rule, which states:

3 R. Exhs. 13 and 14.
(V) SOLICITATIONS:
There will be no solicitation or collection of funds, in the
working areas or for any purpose during work hours on the St.
George premises. Nor will the distribution of written or
printed matter of any description for any purpose will be al-
lowed. Absolutely no materials may be posted in the com-
pany bulletin boards or clock areas, except by management.

On Friday, March 19, 1999, Leonard Sides was informed by
coworkers that the employees had to sign for their copy of the
employee “Manual” in order to collect their paychecks from the
accounting department. When Sides went to accounting at the
end of the day and asked for his check, he was told that he
should sign for receipt of the employee “Manual.” Only after
he signed the receipt, he was given his check. Sides and ap-
proximately 12 other employees were asked to sign for receipt
of the employee “Manual” on March 19, 1999. None of these
employees were new hires and many, like Sides, had been em-
ployed with Respondent for more than 1 year. However, these
employees had never signed a receipt for the handbook upon
their hire by Respondent.
Around March 19, Linda Kuper testified she reviewed one or
two employee personnel files, and realized that signature pages
for the receipt of employees’ manual were missing from some
files. In this regard, Linda Kuper initially testified that she had
gone to the personnel files for “whatever reason,” and that she
had seen that there were one or two files missing signature
pages, including Sides. When questioned as to what inspired
Kuper to go through employee files, she testified she didn’t
know. Kuper then testified that during the union organizing
drive she had noticed and been concerned by some employees
like Tharp, who were exhibiting a “You can’t touch me” atti-
tude and testified further that an example of this attitude would
be Sides’ statement to Steve Kuper on February 2, the date of
Sides initial discharge that Sides “would see Respondent in
court.” Kuper stated that this raised a concern with regard to
Sides because he was essentially saying that Respondent could
not discipline or discharge him. Kuper further testified that
when it was discovered that Sides did not have a signed receipt
for the employee manual that raised a concern because that
meant there was nothing in Sides’ file where he admitted that
Respondent had the right to discipline him.
The testimony of Kuper establishes conclusively that she re-
quired Sides and the 12 other employees to sign these receipts
of the hourly employees manual because of Tharp’s and Sides’
union activities, which consisted primarily of distributing union
cards to Respondent’s employees at Respondent’s facility.
Respondent’s “Manual” prohibits employee solicitations and
distribution of written matter in working areas during working
hours. In this regard, “work hours” as opposed to “working
time,” connotes all hours of the workday including break and
lunchtimes. Thus, the parameters of this rule are ambiguous
and overly broad and, absent a showing that some legitimate
purpose is served; the rule is facially invalid. Control Services,
314 NLRB 421 (1994), Jay Metals, 308 NLRB 167 (1992);
Southwest Gas Corp., 283 NLRB 543, 546 (1997); Brigadier
Industries Corp., 271 NLRB 656, 657 (1984). Respondent’s
rule is also invalid because it prohibits solicitation on the em-
ployees’ own time. Out Way, Inc., 268 NLRB 394 (1983).
Accordingly, I conclude that Respondent’s no-solicitation
clause is unlawful and that Respondent’s distribution or requir-
ing its employees to sign a receipt of the manual containing
ST. GEORGE WAREHOUSE

463
such clause was motivated by the union activities of Sides and
Tharp and is a violation of Section 8(a)(1).
Unlawful Surveillance
The General Counsel alleges that Respondent supervisor,
Paul Smith, engaged in unlawful surveillance of employees,
when he attended a union meeting. Respondent denies Smith
was a supervisor within the meaning of Section 2(11) of the
Act, but admits Smith was an agent within the meaning of Sec-
tion 2(13) of the Act. There is no dispute that Smith told For-
tunato of his intention to attend a union meeting, and that For-
tunato told him it would be “okay,” and that Smith attended
such meeting in the presence of Respondent’s employees. The
meeting took place away from Respondent’s facility.
It is undisputed that up and until the summer of 1998 Smith
was a 2(11) supervisor, with a title of “export supervisor.”
Thereafter, he was reassigned to the title “import door
checker,” not a supervisory position. However, the credible
evidence establishes that following such reassignment he con-
tinued to be paid at the same rate, and that he retained the au-
thority to effectively recommend discharge and discipline.
Moreover, Smith continued to assign Hilo drivers as he had
prior to such reassignment.
To establish supervisory status, the party raising such allega-
tions, must show that an individual exercises at least one of
these types of authority with independent judgment on behalf of
management and not in a routine or sporadic manner. Feld-
kamp Enterprises, Inc., 323 NLRB 1193 (1997), citing DST
Industries, 310 NLRB 957, 958 (1993); and The Door, 297
NLRB 601 (1990).
I conclude Smith was a supervisor within the meaning of the
Act. I also conclude that by his attendance at a union meeting
Respondent engaged in unlawful surveillance of Respondent’s
employees in violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Sections 2(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 interrogated its employees about their mem-
bership in, and activities on behalf of the Union in violation of
Section 8(a)(1) of the Act.
4. Respondent promised its employees increased benefits and
improved terms and conditions of employment if they did not
select the Union as their collective-bargaining representative, in
violation of Section 8(a)(1) of the Act.
5. Respondent solicited grievances from its employees con-
cerning wages, hours, and other terms and conditions of em-
ployment in order to induce its employees not to select the Un-
ion as their collective-bargaining representative, in violation of
Section 8(a)(1) of the Act.
6. Respondent unlawfully surveilled its employees union ac-
tivities were under surveillance, in violation of Section 8(a)(1)
of the Act.
7. Respondent commenced a program of issuing written
warnings to its employees rather than its customary oral warn-
ings because of their employees membership in, and activities
on behalf of the Union.
8. Respondent promulgated and distributed to its employees
an unlawful no-solicitation clause because of its employees,
membership in, and activities on behalf of the Union, in viola-
tion of Section 8(a)(1) of the Act.
9. Respondent issued written warnings to its employees be-
cause of their membership in, and activities on behalf of the
Union, in violation of Section 8(a)(1) and (3).
10. Respondent discharged its employees Leonard Sides and
Jesse Tharp because of their membership in, and activities on
behalf of the Union, in violation of Section 8(a)(1) and (3) of
the Act.
The Election
Pursuant to a stipulated election agreement, an election was
held on April 14, 1999 (Case 22–RC–23270), in a unit of Re-
spondent’s full-time and regular part-time warehouse employ-
ees. The tally of ballots showed:

Approximate number of eligible voters….…….40
Void ballots……………………………….…….1
Votes cast for Petitioner (Union)………………16
Votes cast against Petitioner…………………...17
Valid votes counted……………………….…...33
Challenged ballots……………………….……...4

The challenges were sufficient to affect the results of the elec-
tion.
On June 10, 1999, the Region issued its report on challenge
ballots and order consolidating cases Respondent challenged
Tharp and Sides and the Board agent challenged John Bevan
and Tony Daniels on the ground that they arrived to vote after
the poll had closed. Pursuant a stipulation, the challenges to
Bevan and Daniels was sustained and approved by the Regional
Director, and the challenges of Sides and Tharp consolidated
with the instant trial.
In view of my finding that Sides and Tharp were discrimina-
torily discharged in violation of Section 8(a)(1) and (3), I rec-
ommend that their challenged ballots be opened, counted, and a
revised tally of Ballots be prepared.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I recommend that Respondent be ordered to cease
and desist, and to take certain affirmative action to effectuate
the policies of the act.
Having found that the Respondent discriminatorily dis-
charged Leonard Sides and Jesse Tharp, I shall recommend that
the Respondent offer them immediate and full reinstatement to
their former jobs or, a substantially equivalent position without
prejudice to their seniority or other rights and privileges, and
make them whole for any loss of earnings they may have suf-
fered by reason of the discrimination against them. All back-
pay provided shall be computed with interest on a quarterly
basis in the manner prescribed by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and with interest computed in
the manner and amount prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). Additionally, any written
warnings to Sides and Tharp or reference to their discharge
shall be expunged from their records and written notice given
to them to this effect.4
[Recommended Order omitted from publication.]

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.