United/Bender Exposition Service

National Labor Relations Board - Board Decisions

Apr 20, 1989

293 N.L.R.B. 728 (N.L.R.B. 1989)

728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
United/Bender Exposition Service and International
Brotherhood of Painters and Allied Trades,
AFL-CIO Cases 32-CA-9184 and 32-RC-
2556
April 20, 1989
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On July 27, 1988, Administrative Law Judge Jay
R Pollack issued the attached decision The Re
spondent filed exceptions and a supporting brief
The National Labor Relations Board has delegat-
ed 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, i and
conclusions2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent,
United/Bender Exposition Service, Reno, Nevada,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order
DIRECTION
It is directed that the ballots of Kim Lucas, Mi-
chael Nies, Donna Highman, and Donald Creech
be opened and counted, and that a revised tally of
ballots issue in Case 32-RC-2556 If the revised
tally of ballots shows that a majority of votes has
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Additionally the Respondent asserts that the judge s findings are a
result of bias After a careful examination of the entire record we are
satisfied that this allegation is without merit
The judge erroneously stated that employee Nies last day of work was
June 24 1986 rather than June 24 1987 that Nies claimed his final pay
check on June 27 1987 rather than on July 3 1987 and that June 27
1987 rather than June 29 1987 was a Monday These errors are insuffi
cient to affect our decision
2 In the absence of exceptions we adopt pro forma the judge s recom
mendation to overrule the challenge to the ballot of employee Lucas In
adopting the judges conclusion that the Respondents discharge of Nies
violated Sec 8(a)(3) and (1) of the Act we find it unnecessary to rely on
Foreman Buchanan s alleged admission in February 1988 that Nies was
discharged because of his union activities
In agreeing with the judge that the Respondent s unfair labor practices
are sufficient to set aside the election we rely solely on the Respondents
threats to alter working conditions because of the employees union ac
tivities and on the Respondents discharge of Nies who learned of his
discharge prior to the election
been cast for the Union, then the Regional Direc
tor for Region 32 shall issue a certification of rep-
resentative If the revised tally of ballots shows
that a majority of votes has not been cast for the
Union, then the election shall be set aside and a
rerun election shall be conducted under the direc-
tion and supervision of the Regional Director for
Region 32
Raoul Thorbourne Esq, for the General Counsel
J Mark Montobbio Esq (Severson Werson Berke & Mel
chior), of San Francisco California for the Respond
ent
Jim Dupont of San Francisco California for the Union
DECISION
STATEMENT OF THE CASE
JAY R POLLACK, Administrative Law Judge I heard
these consolidated cases in trial at Reno Nevada, on
March 22, 1988 The cases arose as follows On June 9,
1987, International Brotherhood of Painters and Allied
Trades, AFL-CIO (the Union) filed a petition for repre
sentation in Case 32-RC-2556 for all employees of
United/Bender Exposition Service (Respondent) On
September 15 1987 an election was conducted in an ap
propnate unit under the supervision of the Regional Di
rector for Region 32 of the National Labor Relations
Board (the Board) The official tally of ballots served on
the parties at the conclusion of the election showed that
of approximately 24 eligible voters, 8 cast ballots for and
8 cast ballots against, the Union The Union and Re
spondent both filed timely objections to the conduct of
the election
On September 23, 1987, the Union filed an unfair labor
practice charge against Respondent in Case 32-CA-9184
Thereafter on November 30 the Regional Director
issued a complaint against Respondent alleging violations
of Section 8(a)(3) and (1) of the National Labor Rela
tions Act On December 7, the Regional Director issued
a notice of hearing on certain of the Union s objections
to the conduct of election and on the challenges to the
ballots of two voters Further the Regional Director
issued an order consolidating the representation case and
the unfair labor practice case for hearing before an ad
ministrative law judge
All parties were given full opportunity to appear, to
introduce relevant evidence to examine and cross exam
me witnesses, to argue orally and to file briefs Based on
the entire record from my observation of the demeanor
of the witnesses, and having considered the posthearing
briefs I make the following
FINDINGS OF FACT AND CONCLUSIONS
I JURISDICTION
Respondent is a Nevada joint venture comprised of
Bender Warehouse Co and United Exposition Service
Co Inc, with an office and place of business in Reno,
Nevada, where it has been engaged in providing decors
293 NLRB No 90
UNITED/BENDER EXPOSITION SERVICE
tor services to trade shows and conventions During the
12 months prior to issuance of the complaint Respond
ent sold and shipped goods or provided services valued
in excess of $50,000 directly to customers located outside
the State of Nevada Respondent admits and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues
As mentioned earlier, on June 9, 1987,1 the Union filed
a representation petition seeking to represent Respond
ent s employees The General Counsel and the Union
allege that Respondent, acting through Archie Buchan
an, an admitted supervisor told an employee that the
Respondent would institute a drug testing program for
employees and would rotate work assignments because
employees engaged in union activities The General
Counsel and Union further allege that the Respondent
discharged its employee Michael Nies on June 24 and
began reducing the work hours of its employee Linda
Governor because Nies and Governor aided and sup
ported the Union in its organizing drive
As indicated earlier, certain of the Union s objections
to the conduct of the election have been consolidated for
hearing The objections which are also alleged as unfair
labor practices are that Respondent ( 1) intimidated eligi
ble voters with loss of employment opportunities if they
supported the Union, (2) interfered with, restrained,
and/or coerced its employees in the exercise of their
rights guaranteed by Section 7 of the Act, (3) interfered
with the rights of employees by singling out known
union adherents and publicly insulting them and inciting
them, and (4) threatened known union adherents because
of their membership in and activities on behalf of the
Union Finally the ballots of Michael Nies and Kim
Lucas are at issue here Nies eligibility to vote will turn
on whether he was unlawfully discharged as alleged in
the complaint Lucas ballot was challenged by the
Union on the basis that she quit her employment with
Respondent prior to the election Respondent contends
that Lucas did not quit her employment but continued to
work for Respondent on an as needed basis Respond
ent denies that it committed any unfair labor practices or
engaged in any objectionable conduct Further, Respond
ent contends that Nies was lawfully terminated prior to
the election and is therefore , ineligible to vote
B The Facts
As mentioned earlier on June 9 the Union filed a peti
tion seeking to represent all material handlers decora
tors, forklift drivers, and freight handlers employed by
Respondent Respondent received this petition on June
12 Mike Nies was a material handler for Respondent
and one of the leading union adherents Nies had attend
729
ed several union meetings and invited other employees to
the union meetings Nies was employed by Respondent
as a casual employee from August 8, 1984, through June
24, 1986, his last day of work
Respondents services include the warehousing of mer
chandise the design, setup, and decorating of exhibits,
and the removal of the exhibits and shipment of mer
chandise Because Respondents business operations are
dependent solely on its ability to obtain convention buss
ness the major portion of the work force consists of
casual employees hired on an as needed basis Al
though a casual employee, Nies was generally considered
a core employee and utilized by Respondent as much
as possible
On June 24, Nies and fellow employees Jay Zetterberg
and Linda Governor reported to work, each wearing a
union button Nies testified that during the morning
Archie Buchanan, Respondent's general foreman, advised
him that there was a show for Nies to work the follow
ing Monday Buchanan said he would give Nies the de
tails later that day According to Nies, during that after
noon he observed Buchanan staring intently at his union
button However, Buchanan said nothing about the
button Later that day, Nies set down two dollies Ac
cording to Nies Buchanan yelled at him, I don t treat
your goddamned stuff that way I don t expect you to
treat my dollies that way' Nies testified that he did not
abuse the dollies when he dropped them For the remain
der of the day, Buchanan continually snapped and yelled
at Nies over relatively minor work related matters This
behavior was observed by both Zetterberg and Gover
nor
Buchanan testified that he yelled at Nies, not because
of any union activities, but because Nies had dropped the
dollies potentially subjecting them to damage Respond
ent had just purchased new dollies and equipment Ac
cording to Buchanan, he had just been admonished by
Darryl Monahan Respondents general manager, to
make sure that its employees did not abuse the new
equipment Nies testimony that Buchanan displayed an
unusually bellicose attitude and that he did not abuse the
warehouse dollies is credited over Buchanan s denials
Nies was a credible witness who testified in a candid and
straightforward manner Buchanan on the other hand
was evasive and inconsistent in his testimony Finally,
Nies' testimony was corroborated by Zetterberg and
Governor both still employed by Respondent
At the end of his shift on June 24 Nies asked Mark
Kimball , an employee left in charge after Buchanan had
left for the day if Buchanan had left any instructions for
Nies regarding the Monday job Kimball told Nies that
he knew nothing about the Monday show Nies angry at
Buchanan's behavior, did not call in to find out about the
June 27 show Buchanan did not call Nies to give him a
reporting time nor did Buchanan telephone Nies after the
employee had failed to report for the show
Nies did not report to work for the June 27 show2 and
Buchanan managed whatever work there was without
' All dates refer to 1987 unless otherwise indicated 2 Respondents business records do not reveal any show on June 27
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
calling Nies or any substitute Nies reported to Respond
ent's office with Zetterberg on Friday, July 3, to pick up
his paycheck According to Nies and Zetterberg, Gary
Williams, Respondents customer service manager asked
where Nies had been on Monday, June 27 Nies an
swered that Buchanan had not contacted him about
working that day Williams answered that he was just
wondering why Nies had not reported for work Wil
liams denied having such a conversation with Nies I
credit the testimony of Zetterberg and Nies over Wil
liams denial
Williams and Darryl Monahan, Respondent 's general
manager , both testified that when Nies claimed his pay
check on June 27, Monahan asked Nies why he had not
shown up for work, and Nies replied that he had been
working for Pulitz/Greyhound, one of Respondent s
competitors 3 According to Monahan and Williams,
Monahan told Nies that he wished that Nies had notified
Respondent beforehand I do not credit Williams and
Monahan's testimony on this point Rather, I credit the
testimony of Nies and Zetterberg that no such conversa
tion took place
Nies was never called back to work by Respondent
thereafter and was never notified that he had been dis
charged Just prior to the election of September 15, 1987,
Nies was informed by Jim Dupont of the Union that Re
spondent had left Nies' name off the voter eligibility list
because Nies was no longer employed Nies testified that
in February 1988 Nies told Buchanan that the dispute in
volving the Union had been blown out of proportion
Buchanan agreed and then told Nies that he would like
to hire Nies back but that "right now he had to follow
what Darryl [Monahan] says, that Darryl wanted to
follow this all through," but afterwards Buchanan
would like to hire Nies back Buchanan admitted having
a conversation with Nies in February 1988 but denied
ever mentioning the Union or hiring Nies back Nies' tes
timony is credited over Buchanan s denials
Linda Governor worked for Respondent as a decora
tor Governor testified that during a conversation with
Buchanan at Respondents office, about 6 weeks before
the September 15 election, Buchanan told Governor that
because of the union activity Respondent would be
starting a drug testing program and also a new rotating
work schedule, under which employees would not be
permitted-as they had been in the past-to work every
show Sharon Sullivan, then a secretary for Respondent
testified that Buchanan told her that Respondent would
start a drug testing program if the Union won the elec
tion
Although Buchanan denied making such statements to
Governor, he admitted that there were rumors about
the institution of a drug testing program and a change in
the scheduling system Further, Buchanan admitted that
Monahan had told him that because of the union drive
Buchanan should attempt to schedule the work so that as
many employees as possible could receive some assign
ments Buchanan offered contradictory testimony that
the scheduling was not related to the union campaign In
8 Nies did not work for Pulitz /Greyhound during the week in ques
uo-i
any event, I found Buchanan to be a particularly un
trustworthy witness and credit Governor's and Sullivan's
testimony over Buchanan s denials
On September 15, Governor served as the Union's ob
server to the election She was seen participating as the
Union's observer by Monahan and Buchanan Thereafter,
Governor, who had been working almost every show for
Respondent, was not called to work by Buchanan for a
period of almost 6 weeks During that 6 week period,
Governor called Buchanan and left a number of mes
sages, none of which were returned Sullivan, the secre
tary who took these messages, corroborated Governor's
testimony that the decorator repeatedly left messages for
Buchanan Therefore, Buchanan's testimony that he
never received any messages from Governor is not cred
ited
In October Governor complained to Todd Mayo, Re
spondent s freight foreman, that Buchanan was not
giving her any work and that she was suffering financial-
ly Mayo told Governor that he did not believe in the
politics that was going on at work with the union stuff'
and that he knew Governor was a good worker Mayo
told Governor to report to work for him in the ware
house the next Monday Governor then worked in the
warehouse
Mayo, still employed by Respondent, did not testify
Respondent denied the supervisory status of Mayo The
evidence establishes that Mayo had the authority to hire
employees and in fact exercised that authority Buchanan
admitted that Mayo regularly hired workers without
consulting Buchanan because Buchanan is often busy and
Mayo is knowledgeable about the warehouse needs
It is well settled that the possession of any one of the
supervisory indicia set forth in Section 2(11) of the Act4
is sufficient to establish supervisory status See, e g ,
Anchor Tank, Inc, 233 NLRB 295 (1977), NLRB v Budd
Mfg Co 169 F 2d 571 576 (6th Cir 1948) However,
the exercise of any such power must not lack independ
ent judgment or be merely routine See, e g , Harmon In
dustries 226 NLRB 432 438-440 (1976) enfd 565 F 2d
1047 (8th Cir 1977), Times Herald Printing Co, 252
NLRB 278 (1980) In Times Herald supra, the test ap
plied for supervisory status was that the evidence must
clearly identify an employee as an active arm of manage
ment with recognizable responsibilities and duties Rec
ognizable i e by the rank and file Times Herald supra
at 285
The statements at issue in the instant case were uttered
by Mayo while he was hiring Governor to perform
warehouse work Applying the Times Herald test I find
that Mayo was a supervisor within the meaning of Sec
tion 2(11) of the Act and that employees such as Gover
nor, would reasonably identify Mayo with the manage
ment of Respondent
* Sec 2(11) of the Act states
The term supervisor means any individual having authority in
the interest of the employer to hire transfer suspend lay off recall
promote discharge assign reward or discipline other employees or
responsibly to direct them or to adjust their grievances or effective
ly to recommend such action if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical
nature but requires the use of independent judgment
UNITED/BENDER EXPOSITION SERVICE
C Respondent's Defense
Respondent contends that Nies was terminated because
he lied to Monahan about his failure to report for work
during the week of June 27 5 According to Monahan,
after talking with Nies, he ran into John LaVoy, a super
visor for Pulitz/Greyhound at Bally s Hotel in Reno
During this discussion, Monahan asked whether LaVoy
was busy because they had hired Nies to work in this
warehouse LaVoy responded that they were not busy
and that Nies had not worked for Pulitz/Greyhound in
some time 6 According to Monahan, he then decided to
terminate Nies for lying to him about why Nies had not
reported to work Monahan then filled out a personnel
form on which he stated that Nies had been terminated
for not reporting to work Monahan never adequately
explained why he did not give the real reason for the
termination on the personnel form Respondent does not
contend that Nies was terminated for not reporting to
work Respondent has often condoned the failure of an
employee to report to work Nies was not gi,,en notice
of the termination but Buchanan was notified not to hire
or rehire Nies
Williams corroborated Monahan s testimony but was
not a credible witness LaVoy also corroborated Mona
han s testimony that Monahan asked about Nies and that
LaVoy answered that Nies had not worked for his com
pany for some time LaVoy could not place the date of
the conversation and had no knowledge concerning Nies
discharge or the reasons thereof
Respondents records indicating the date and locations
of its shows were placed in evidence However, these
records do not corroborate Respondents defense The
records do not reveal a show during the week of June
27, for which Nies allegedly did not report Further the
records do not reveal a show at Bally s Hotel, during the
relevant time period, at which Monahan allegedly
learned that Nies had lied
Respondent contends that it did not discriminate
against Governor and that Buchanan did not use Gover
nor because she was unavailable for work According to
Respondent, Governor was working for Pulitz/Grey
hound from September 20-23 and 26 and 27 That de
fense simply does not withstand scrutiny The credible
evidence establishes that Governor called Buchanan
seeking work but her calls were not returned 7 Governor
credibly testified that she took work from Pulitz/Grey
hound after failing to obtain work from Buchanan The
fact that Governor worked for Pulitz/Greyhound may
serve to lessen Respondent's backpay liability but it does
not alter the conclusion that Buchanan did not hire Gov
ernor and did not return her calls seeking work
5 As mentioned earlier I do not credit Monahan s testimony that Nies
told him that Nies had been working for Pulitz/Greyhound
8 Nies Zetterberg Governor and the other casual employees often
work for Pulitz/Greyhound when Respondent does not have work for
them
7 Buchanan s testimony that he did not receive Governor s messages is
not credited Further I do not credit Buchanan s testimony that he of
fered Governor work on September 20 and 21
731
D The Challenged Ballot of Kim Lucas
Respondents payroll records show that prior to the
September 15 election, Lucas last worked for Respond
ent on July 7, approximately the time she began working
at her new job In the 2 months following the election
Lucas worked only 2 days for Respondent Lucas did
not testify at the instant hearing In a statement given
during the Regional Directors investigation, Lucas
stated that she always intended to continue working for
Respondent on an "as needed basis
Zetterberg testified that Lucas told him that she had
quit Respondents employ to work another job Gover
nor also testified that Lucas told her that she had quit
However, Monahan, Buchanan , and Williams all denied
that Lucas ever advised them that she was quitting her
employment Buchanan testified that Lucas told him that
she still wanted to work for Respondent Respondent s
records do not show any termination for Lucas In fact,
Lucas is still employed on a casual basis by Respondent
Under the circumstances , there is only hearsay testa
mony that Lucas quit her employment 8 Since Lucas did
not testify, I credit Governor s and Zetterberg's testimo
ny that Lucas told them that she had quit However, this
does not establish that she in fact told any agent of Re
spondent that she quit There is no evidence that Lucas
told any agent of Respondent that she was quitting Re
spondent's agents deny such a conversation took place
Lucas attempted to vote in the election and worked for
Respondent after the election Accordingly, there is in
sufficient evidence to establish that Lucas ever quit Re
spondent s employ Rather, the evidence supports an in
ference that Lucas intended to keep open her option of
earning extra money by working for Respondent as a
casual employee when the opportunity presented itself
Respondent's operation is particularly well suited for
such an opportunity Respondent has weekend and
evening work so that persons who are employed else
where can work for Respondent as casual employees
Thus if the bargaining unit9 included such employees as
it apparently did, there is no reason why Lucas should
not be permitted to vote
8 Respondents hearsay objection was overruled on the ground that the
hearing on objections and challenges is not an adjudicatory proceeding
Although the hearsay is admissible it does not follow that it is trustwor
thy or that it should be credited In this case I found Governor and Zet
terberg to be credible witnesses but I have no basis to determine whether
Lucas is credible or not Lucas was apparently available for examination
by any of the parties and there was no explanation for the failure to call
her as a witness
While I have discredited Williams Monahan and Buchanan on critical
points I refuse to go so far as to find the opposite of what they testified
to be true This is particularly true where no witness with knowledge has
contradicted their testimony
8 All full time and regular part time employees engaged in the installa
tion and removal of exhibits and related material in connection with trade
shows including warehouse/equipment persons leadpersons drivers sign
painters freight foremen and laborers employed by Respondent at or
out of its Reno Nevada facility excluding all other employees drafts
men salesmen office clerical employees guards and supervisors as de
fined in the Act
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Analysis and Conclusions
1 The unfair labor practices
In Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d
899 (1st Cir 1981), cert denied 455 US 989 (1982), the
Board set forth the following causation test in all cases
alleging violations of Section 8(a)(3), and violations of
Section 8(a)(1) turning on employer motivation First,
the General Counsel must make a prima facie showing
sufficient evidence to support the inference that protect
ed conduct was a motivating factor' in the employer's
decision Once this is established, the burden will shift to
the employer to demonstrate that the same action would
have taken place even in the absence of the protected
oconduct"
I find that the General Counsel has met the require
ments of a prima facie showing that Nies union activities
were a motivating factor in Respondents decision to dis
charge him Shortly after the representation petition was
filed, Nies wore a union button to work Nies never
worked for Respondent again The circumstantial evi
dence establishes that Buchanan learned from the button
that Nies was a union adherent and that Buchanan imme
diately took adverse action against Nies That day, Bu
chanan continually yelled at Nies and harassed the em
ployee out of proportion to the employees handling of
the wooden dollies Thereafter, Buchanan gave Nies no
notice of the starting time for the next show for which
he had previously asked Nies to work Respondent s
records do not reveal such a show taking place Based
on the credible testimony of Nies Zetterberg and Gov
ernor, there is no credible explanation for Buchanan s
harassment of Nies on June 24 except for Nies wearing
of the union button
Between Nies last day of employment and the repre
sentation election, Buchanan told Governor and Sullivan
that if the Union won the representation election Re
spondent would institute a drug testing program See
Lockheed Shipbuilding Co 273 NLRB 171 (1984) LeRoy
Machine Co 147 NLRB 1431 (1964) Further Buchanan
threatened Governor that if the Union won the election
the work assignments would be scheduled in such a
manner that employees would only work every other
show Such a rotation system would adversely affect em
ployees such as Governor who attempted to work every
show See Maxi City Deli, 282 NLRB 742 (1987) Bay
State Ambulance Rental, 280 NLRB 1079 (1986)
Monahan s falsification regarding the discharge of Nies
supports an inference that Respondent had an unlawful
motive for the discharge See e g, Keller Co, 237
NLRB 712, 716 (1978) Party Cookies Inc 237 NLRB
612 623 (1978) See also Shattuck Denn Mining Corp v
NLRB 362 F 2d 466, 470 (9th Cir 1966) Monahan had
no conversation with Nies in which the employee said he
was working for Pulitz/Greyhound during the week of
June 29 through July 3 Zetterberg was with Nies and
heard no such conversation Moreover, Respondent s
records show no evidence of any trade show that week
If there was no show then Nies had not failed to report
10 The United States Supreme Court approved the Board s Wright Line
test in NLRB v Transportation Management Corp 462 U S 393 (1983)
to work Even if there was a show, Buchanan had not
given Nies a reporting time and Nies had reported that
fact to Williams Further, Respondents records revealed
no show at Bally s Hotel on July 3 and, thus, failed to
corroborate Monahan's testimony that he learned on July
3 from LaVoy that Nies had lied LaVoy only testified
that he had a conversation at some time in which he told
Monahan that Nies had not worked for Pulitz/Grey
hound for some time In Respondents internal document,
Monahan gave no indication that Nies had engaged in
any falsehood Rather, Monahan gave the false reason
that Nies had failed to report for work If Monahan was
concerned about honesty why did he put down a false
reason in Respondents personnel document? The dis
charge would be no deterrent to dishonesty because no
employee not even Nies, had notice of the personnel
action Further, Monahan gave Nies no opportunity to
explain the alleged falsity The failure to conduct a
meaningful investigation or to give the employee an op
portunity to explain has been regarded as an important
indicia of discriminatory intent See K & M Electronics,
283 NLRB 279 (1987) Florida Medical Center, 227
NLRB 1412 (1977)
Buchanan's statements in February 1988 are an admis
sion that Nies was discharged for reasons connected to
union activity Thus, Buchanan admitted to Nies that he
would like to hire back Nies but could not because the
Union thing had been blown out of proportion' and be
cause Monahan wanted to follow through "
Finally as more fully set forth below the record re
veals that, almost contemporaneous with Nies discharge,
Respondent unlawfully reduced the work assignments of
Governor, the union observer, because of her union ac
tivities
Respondent was unable to establish that Nies would
have been discharged in the absence of his union active
ties As stated earlier Respondents defense that Nies
was discharged for lying about working for Puhtz/Grey
hound is simply untrue Nies did not work for
Pulitz/Greyhound during the week of June 29 though
July 3 and never made such a statement to Monahan
There is no evidence that Respondent had a show during
the week of June 29 through July 3 for which Nies did
not report Nor is there any credible evidence that Mon
ahan and LaVoy discussed Nies on July 3 Moroever in
his own personnel records, Monahan wrote that Nies
was discharged for not reporting to work-a basis for
discharge Respondent admittedly could not justify Nies
was given no notice of the discharge and no opportunity
to explain or deny the alleged malfeasance Having re
jected Respondents false and pretextual defense, I find
nothing to rebut the prima facie case i i and Buchanan s
admission that the discharge was related to Nies union
activities
I conclude that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Nies because of his
union activities Having found that Nies was discharged
i i Respondent has established that Nies made an insufficient effort to
work the week of June 29 However even if there was work for Nies
that week the record establishes and Respondent concedes that Nies
would not have been discharged for that reason
UNITED/BENDER EXPOSITION SERVICE
in violation of Section 8(a)(3) and (1) of the Act I shall
recommend that the challenge to his ballot be overruled
Bonnano Family Foods 230 NLRB 555 (1977) See Sioux
City Brewing Co, 85 NLRB 1164 (1949)
Similarly I find that the General Counsel has estab
lished a prima facie case that Governor was discriminat
ed against because of her union activities Prior to the
election, Buchanan told Governor that because of the
union activity, Respondent would be starting a drug test
ing program Further, Buchanan told Governor that Re
spondent would also commence a rotation system which
system would result in Governor, and other regularly
working employees missing every other show After
serving as the Union's observer at the election Governor
found that her phone calls to Buchanan seeking work
were not returned For a period of 6 weeks Governor
was unable to work for Respondent because Buchanan
refused to return her calls
Mayo, Respondent's freight foreman finally hired
Governor to perform warehouse work Mayo informed
Governor that he did not believe in the politics that
was going on at work with the union stuff
Based on the timing of the failure to call Governor for
work, Respondent's knowledge of her union affiliation
the concurrent unfair labor practices, Respondent s
animus toward the Union, and Mayo s admission, I find
that the General Counsel has established a prima facie
case of discrimination
The record evidence reveals no defense to Respond
ent s conduct toward Governor Buchanan s testimony
that he never received any telephone messages is not
worthy of belief The credited testimony of Governor
and Sullivan establishes that Governor called and left
messages on a daily basis in an attempt to obtain work
assignments
Respondents contention that Governor was working
for its competitor, Pulitz/Greyhound, is not supported
by the record Rather, the evidence establishes that Gov
ernor when unable to work for Respondent sought
work from Pulitz/Greyhound However, Respondent
was always Governors first choice There is no credible
evidence to support the argument that Governor was not
available or turned down work with Respondent Ac
cordingly I find that Respondents defense is a pretext
and that the real reason for Respondents failure to uti
lize Governor s services for the 6 week period following
the election was Governors activities on behalf of the
Union
Based on the credited testimony of Governor and Sul
livan, I find that Buchanan unlawfully threatened that
Respondent would institute a drug testing program if the
employees selected the Union as their representative See
Continental Can Co, 282 NLRB 1363 (1987), Mercury
Marine 282 NLRB 794 (1987) Further, Buchanan un
lawfully threatened to reduce work assignments if the
employees voted for union representation Arkansas
Lighthouse for the Blind, 284 NLRB 1214 (1987)
2 The representation case
To be eligible to vote in a Board election the employ
ee must be in the appropriate unit during the payroll
period immediately preceding the date of the direction of
733
election consent agreement or stipulation for certifica
tion and in employee status on the date of the election
See e g Plymouth Towing Co, 178 NLRB 651 (1969),
Greenspan Engraving Corp 137 NLRB 1308, 1309 (1962)
Employees who quit their employment and stop working
on a date prior to the election are not eligible to vote
Birmingham Cartage Co, 193 NLRB 1057 (1971)
In the instant case Lucas was an employee both
before and after the election The burden is on the Union
to overcome the presumption that Lucas was an eligible
voter and make an affirmative showing that Lucas had
resigned 12 I find that the Union has been unable to sus
tarn that burden The evidence only establishes that two
employees were told by Lucas that she had resigned
There is no evidence that any official of Respondent was
told by Lucas that the employee intended to resign
Rather, the evidence supports an inference that Lucas in
tended to keep her options open so that she could obtain
casual work with Respondent to supplement her income
from her regular employment Accordingly, I shall over
rule the challenge to Lucas ballot
The unfair labor practices found above, occurring
during the pendency of the representation petition, are
more than sufficient to set aside the election American
Safety Equipment Corp 234 NLRB 501 (1978) Dayton
Tire & Rubber Co 234 NLRB 504 (1978) Therefore, I
shall recommend that the Board set aside the election
In view of the election results, I shall recommend that
the Regional Director open and count the ballots of Mi
chael Nies and Kim Lucas The Regional Director has
already ruled that the ballots of Donna Highman and
Donald Creech should be opened and counted If the re
wised tally shows that a majority of employees has voted
against representation by the Union, the election should
be set aside and the Regional Director should hold a
rerun election However if the revised tally of ballots
shows that a majority of votes has been cast for the
Union then a certification of representative shall issue
CONCLUSIONS OF LAW
I The Respondent United/Bender Exposition Service
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
2 The Union International Brotherhood of Painters
and Allied Trades AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act
3 Respondent has violated Section 8(a)(1) of the Act
by threatening to impose harsher working conditions and
to reduce working hours because its employees engaged
in union and other protected activities
4 Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging Michael Nies and refusing to
employ Linda Governor, for a period of 6 weeks be
cause of their union activities
5 The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
12 Cf Red Arrow Freight Lines 278 NLRB 965 (1986)
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices I shall recommend that it be or
dered to cease and desist and that it take certain affirma
tive action set forth below to effectuate the policies of
the Act Respondent shall be ordered to reinstate Mi
chael Nies and to make whole Nies and Linda Governor
for any loss of earnings they may have suffered by
reason of the discrimination against them Backpay is to
be computed on a quarterly basis making deductions for
interim earnings , F W Woolworth Co 90 NLRB 289
(1950), and with interest to be provided in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
edrs
ORDER
The Respondent, United/Bender Exposition Service,
Reno, Nevada, its officer, agents, successors and assigns,
shall
1 Cease and desist from
(a) Discriminating against employees in regard to dis
charge or work assignments, hire or tenure of employ
ment for engaging in activity on behalf of a labor organs
zation
(b) Threatening harsher working conditions or loss of
work opportunities because of its employees union ac
tivities
(c) 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) Offer Micheal Nies immediate and full reinstate
ment to his former job or, if that job no longer exists to
a substantially equivalent position without prejudice to
his seniority or any other rights or privileges previously
enjoyed and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina
tion against him in the manner set forth in the remedy
section of the decision
(b) Make whole Linda Governor for any loss of earn
ings and other benefits she may have suffered by reason
of the discrimination against her, with interest, in the
manner and to the extent set forth in the section of this
decision
(c) Remove from the files of Governor and Nies all
references to the discrimination practiced against them
and notify each of them in writing that this has been
done and that evidence of these discriminatory acts will
not be used as a basis for future personnel action against
them
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying all pay
13 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
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its Reno, Nevada office and warehouse
copies of the attached notice marked "Appendix "14
Copies of the notice, on forms provided by the Regional
Director for Region 32, after being signed by the Re
spondent s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that the ballots of Kim
Lucas, Michael Nies, Donna Highman and Donald
Creech be opened and counted, and that a revised tally
of ballots issue in Case 32-RC-2556
IT IS FURTHER RECOMMENDED that if the revised tally
of ballots shows that a majority of votes has been cast
for the Union then the Regional Director for Region 32
shall issue a certification of representative
IT IS FURTHER RECOMMENDED that if the revised tally
of ballots shows that a majority of votes has not been
cast for the Union, then the election shall be set aside
and a rerun election shall be conducted under the direc
tion and supervision of the Regional Director for Region
32
14 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 Nation
al 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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIOANAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT discriminate against employees in
regard to discharge or work assignments hire, or tenure
UNITED/BENDER EXPOSITION SERVICE
of employment for engaging in activity on behalf of
International Brotherhood of Painters and Allied Trades,
AFL-CIO or any other labor organization
WE WILL NOT threaten harsher working conditions or
loss of work opportunities because of our employees'
union activities
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Micheal Nies immediate and full rein
statement to his former job or , if that job no longer
exists, to a substantially equivalent position without prej
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
735
any loss of earnings and other benefits resulting from his
discharge , less any net interim earnings , plus interest
WE WILL make whole Linda Governor for any loss of
earnings and other benefits she may have suffered by
reason of the discrimination against her , plus interest
WE WILL expunge from the files of Governor and
Nies all references to the discrimination practiced against
them and WE WILL notify them in writing that this has
been done and that evidence of these discriminatory acts
will not be used as a basis for future personnel action
against them
UNITED/BENDER EXPOSITION SERVICE