Borun Brothers, Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1981

257 N.L.R.B. 156 (N.L.R.B. 1981)

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borun Brothers, Incorp~ated, a wholly owned sub-
sidiary of Thrifty orporation and Teamsters,
Chauffeurs, Wareh usemen and Helpers Local
Union No. 533, filiated with International
Brotherhood of Te msters, Chauffeurs, Ware·
housemen and Help rs of America
Borun Brothers, Incorp.rated, a wholly owned sub-
sidiary of Thrifty: Corporation and Evelyn
Gaston. Cases 32-JA-2105, 32-CA-2639, and
32-RC-836
July24, 1981
DECISION AND ORDER
On January 21, 1981) Administrative Law Judge
Joan Wieder issued th~' attached Decision in this
proceeding. Thereafter Respondent fi1ed excep-
tions and a supporting rief, and the General Coun-
sel fi1ed a statement i partial opposition to Re-
spondent's exceptions. ,
The Board has consi~ered the record and the at-
tached Decision in litht of the exceptions and
briefs and has decided 1··· to affirm the rulings, find-
ings, 1 and conclusions of the Administrative Law
Judge and to adopt h r recommended Order, as
modified herein. 2.
ORDER
i
Pursuant to Section lO(c) of the National Labor
Relations Act, as amenJ' ed, the National Labor Re-
lations Board adopts as its Order the recommended
1 Respondent has excepted to ertain credibility findings made by the
Administrative Law Judge. It i . the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi·
bility unless the clear preponderapce of all of the relevant evidence con-
vinces us that the resolutions are: incorrect. Sumdord Dry Woll Produc1s.
Inc., 91 NLRB 544 (1950), enfd.i 188 F.2d 362 (3d Cir. 1951). We have
~arefully examined the record~d find no basis for reversing her find-
mgs.
The Conclusions of Law sect n of the Administrative Law Judge's
Decision recites a violation of . 8(a)(5) to which both Respondent and
the General Counsel except. Th complaint contains no allegation of a
refusal to bargain and there w . no testimony taken on that issue nor
findings of fact made. The 8(a)(5)i violation appears to have been included
erroneously and par. 7 will there(ore be deleted and the subsequent para-
graphs renumbered accordingly. We also amplify Conclusion of Law 3 to
include the words "promulgatiniand" immediately before "mainlaining
in effect an unlawful no-solicitati nino-distribution rule," in accord with
the complaint.
• The Administrative Law Ju ge included a broad order at par. l(e).
We substitute a narrow order in accord with Hickmo/1 Foods. Inc., 242
NLRB 1357 (1980), and in accor with the corresponding paragraph con·
tained in the notice. Also, par. I( ) of the Order is corrected to conform
with the Administrative Law Juclge's Conclusion of Law 3, as amplified.
The Administratrive Law Judg~ inadvertently (sec. II, par. 16) referred
to Dennis as having attended t~ August 21 counseling session. Dennis
did participate in counseling Wa:ls on March 12 and 13 of the following
year.
We agree with the Administra ive Law Judge's findings sustaining the
objections to the election and ad pi her recommendation to set aside the
election. Accordingly, we shall r mand Case 32-RC-836 to the Regional
Director for purposes of schedul ng and conducting a second election at
an appropriate time. ,
We have conformed the Ad1'inistrative Law Judge's recommended
Order and notice. ::
257 NLRB No. 3
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Borun Brothers, Incorporated, a wholly owned
subsidiary of Thrifty Corporation, Sparks, Nevada,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
I. Substitute the following for paragraph l(d):
"(d) Promulgating and maintaining an invalid no·
solicitation/no-distribution rule, and applying it in a
discriminatory manner."
2. Insert the following as paragraph l(e) and re-
letter the subsequent paragraph accordingly:
"(e) Discouraging membership in or activities on
behalf of Teamsters, Chauffeurs, Warehousemen
and Helpers Local Union No. 533, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization, by discharging em·
ployees or discriminating against them in their hire
or tenure."
3. Substitute the following for original paragraph
l(e):
"(f) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act."
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT threaten you with reduced
wages and benefits and other reprisals for en-
gaging in concerted protected activity in the
BORUN BROTHERS, INC. 157
event a union becomes I your collective-bar-
gaining representative. 11
WE WILL !'lOT coerci~ely interrogate you
about your union activiti¢s, sympathies, or de-
• 1l
stres. :
WE WILL NOT poll yo~ about your desire to
be represented by a union.
WE WILL NOT engagle in surveillance or
create the impression that we have your union
activities under surveilla~e.
WE WILL NOT promu~ate and maintain an
invalid no-solicitation/no-distribution rule and
apply it in a discriminatoty manner.
WE WILL NOT discour~ge membership in or
activities on behalf of ~eamsters, Chauffeurs,
Warehousemen and HelJters Local Union No.
533, affiliated with Intellnational Brotherhood
of Teamsters, Chauffeur$, Warehousemen and
Helpers of America, or ~y other labor organi-
zation, by discharging e~
11
ployees or discrimi-
nating against them in th ir hire or tenure.
WE WILL NOT in any ike or related manner
interfere with, restrain, ~r coerce our employ-
ees in the exercise of Jhe rights guaranteed
them by Section 7 of thei Act.
WE WILL rescind aJ1d expunge from our
personnel or other records the written warning
issued to Jeannie MarielWatts, and all reports
or other references to a, y other alleged viola-
tions by Jeannie Marie Watts, Stephen Taran-
tino, and Robert Gilbeh of our "solicitation
and distribution" rule or! to any counseling ses-
sions we had with other,employees concerning
this rule. :
WE WILL cease repritPanding or disciplining
employees for violajtions of our no-
solicitation/no-distributif. n rule, and discri-
minatorily enforcing th rule so as to unlaw-
fully interfere with ou .. employees' rights to
solicit on behalf of a labpr organization.
WE WILL, if necess.ry, reimburse Robert
Gilbert and Stephen Tdrantino for any wages
not yet reimbursed as a k.' esult of their discrimi-
natory discharges, plus i~lterest.
BORUN BROTHERS, I INCORPORATED, A
WHOLLY OWNED I SUBSIDIARY OF
THRIFTY CORPORAtiON
DECISI~N
STATEMENT OF ~HE CASE
JOAN WIEDER, Administrathle Law Judge: These con-
solidated cases were heard at Reno, Nevada, on July 8
and 9, 1980, 1 pursuant to chlrges filed by Teamsters,
Unless otherwise indicated, all dat s herein refer to the year 1979.
,,
Chauffeurs, Warehousemen and Helpers Local Union
No. 533, affiliated with International Brotherhood of
Teamsters, Chauffuers, Warehousemen and Helpers of
America, herein called the Union, in Cuse 32-CA-2105
on September 3 and amended on September 20; and, in
Case 32-CA-2639; the charge was filed by Evelyn
Gaston, an individual, on April 9, 1980, and was amend-
ed on April 25, 1980. A consolidated amended complaint
was issued on May 28, 1980. 2 Objections to conduct af-
fecting the results of a representation election were
timely filed by the Union in Case 32-RC-836 which was
consolidated, in part, with the unfair labor practice cases
for hearing before an administrative law judge.
The amended complaint alleges that Borun Brothers, a
wholly owned subsidiary of Thrifty Corporation, herein-
after referred to as the Company or Respondent, has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended, herein called the Act.
Pursuant to a Decision and Direction of Election
dated October 5, an election by secret ballot was con-
ducted by the National Labor Relations Board on No-
vember 2, which resulted in 33 ballots cast for the Peti·
tioner and 136 ballots cast against the Petitioner. There
were 38 challenged ballots which were not determinative
of the results of the election. On November 9, Petitioner
timely filed objections to conduct affecting the results of
the election. On December 31, the Acting Regional Di-
rector issued a Supplemental Decision and Order over-
ruling certain objections, in whole or in part, 3 and, on
March 7, the Regional Director, in a Second Supplemen-
tal Decision, issued an order consolidating Case 32-RC-
836 with Case 32-CA-2106 for the purpose of hearing,
ruling, and decision by an administrative law judge on
the issues raised in certain of Petitioner's objections4 and
in the complaint in Case 32-CA-2105. No exceptions
were filed to the Supplemental Decision or to the
"Second Supplemental Decision, Order Consolidating
Cases and Notice of Hearing."
The objections, as here pertinent, are coextensive with
the alleged unfair labor practices with the exception of
Objection 9, which claims that Respondent unlawfully
and materially misrepresented the union-employee rela-
tionship at times calculated to preclude the Union from
having an opportunity to reply effectively. The coexten-
sive allegations include claims of unlawful surveillance
or impression of surveillance, interrogation, and/or poll-
ing of employees regarding their union membership, ac-
tivities, or sympathies, 5 unlawful threats of discharge or
2 The complaint was also orally amended at the hearing.
3 Objections 4, 7, 8, 10, 12, 13, 14. 15, 18 through 22, and 23 were over
ruled in their entirety and Objections 5 and 6 were overruled in part.
4 Objections I, 2, 3, 9, 11. 16, 17, 24, and those parts of Objections 5
and 6 relating to the discharge of employees Tarantino and Gilbert.
• Objection 1 10 the election also contends that the Company permit-
ted a third party 10 prescreen casuals and applicants for potential employ-
ment regarding their union sympathies and the Acting Regional Director
for Region 32 found this objection raised issues of fact warranting a hear·
ing. The complaint, as amended, does not include a similar allegation. II
is assumed that the Union abandoned that portion of Objection 1 by
virtue of its failure 10 adduce any evidence probative of the allegation
and since it did not file a brief. Accordingly. it is rcc<'mmcndcd that this
portion of Objection 1 be overruled.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other discriminatory activity because employees were en-
gaging in concerted prote4ted activity, the promulgation
and maintenance of a. n u~wful no-solicitation/no-distri-
bution rule which was di riminatorily enforced, the dis-
criminatory discharge of obert Gilbert and Steven Tar-
antino, and the discrimi atory disciplining of Jeannie
Watts. Respondent denies Interfering with the conduct of
the election as alleged in t~e Union's objections and also
denies violating Section s~·· )(1) and (3) of the Act.
All parties were given ull opportunity to participate,
to introduce relevant evid nee, to examine and cross-ex-
amine the witnesses, to a gue orally, and to file briefs.
Briefs, which have been c refully considered, were filed
on behalf of the General .. ounsel and the Company.
Upon the entire record !lof the case, and from my ob-
servation of the witness±and their demeanor, I make
the following:
FIN DIN S OF FACT
I. THE ALLEGED U •. FAlR LABOR PRACTICES
li
A. Blfckground
Respondent is a wholl~owned subsidiary of Thrifty
Corporation which is a alifornia corporation engaged
in the sale and distributi n of merchandise within the
States of Nevada and Cali rnia. 6
In March 1979, the C~mpany opened a new ware-
house in Sparks, Nevada, 11 and then commenced staffing
the facility. All the houri~· paid employees who testified
herein were employed as forklift drivers. In May, the
warehouse opened for bu iness. Also in May, the Union
commenced its organizing campaign.
The Company experieliced difficulty in commencing
operations; initial conditio6s were described as poor, and
at times the warehouse w~s "totally inoperable." In addi-
tion to permanently assifned supervisors, Respondent
temporarily assigned supe visors from other locations to
the warehouse to assist in hiring, training, and other ac-
tivities necessitated by the difficulties in launching a new
warehouse and the exigef.!Cies such a new operation en-
genders in creating a funftional facility. The uncontro-
verted evidence is that itt. kes about 1 year before a new
warehouse becomes fully nctional.
The parties stipulated o agreed that the following in-
dividuals were supervisor at the Sparks, Nevada, ware-
house at the pertinent ti : Gary Thompson, currently
plant superintendent and ~he individual in charge of op-
erations; Dennis Malamu~, a division manager; Terry
McConne11;7 Robert Nor~cutt; Patrick Kennedy; Glen
Mai; Dick Rowe; Rubin Salgatto; Jim Rau; Personnel
Manager; Larry Dennis, Mulroony; and Bob Scurrah.
Additionally, Bill D. Eve ett, labor relations representa-
tive for Thrifty, frequent] traveled from Thrifty's cor-
• Jurisdiction is not in issue. kespondent admits, and ) lind, that it
meets the Board's $50,000 direct~· utflow standard for the assertion of ju-
risdiction. 1t is also admitted and found herein that the Union is a labor
organization within the meaning Sec. 2(5) of the Act.
1 Counsel for Respondent re resented that at the time of hearing
McConnell was in a coma as a re ult of an automobile accident, and was
unable to testify. Counsel for the . eneral Counsel accepted this represen·
tation. Accordingly, no inference$ will be drawn from the failure to call
McConnell. I!
porate headquarters in Los Angeles, California, to the
Sparks warehouse to assist local management and to take
charge of the Company's efforts to defeat the Union's or-
ganizing activities.
Everett prepared, for distribution to the employees, a
handbook entitled "Welcome to Thrifty." Some employ-
ees received the handbook at the time they were hired
by the Company. The handbook contains the foJiowing
solicitation and distribution rule:
In order to help insure that you and your feilow
employees are not disturbed at your working sta-
tions while on the job, it is therefore our policy that
there be no distribution of literature, of a political
or other nature, or solicitations of any kind on Com-
pany time. In addition, there shall be no solicitation
or distribution of literature of any kind on the job
by persons not employed at Thrifty. We request
your cooperation and any activities of this sort
should be reported to your Supervisor immediately.
[Emphasis supplied.]
The handbook, under the heading general work rules,
further provides:
We have never felt it was necessary to have a set
of strict and formal work rules for our employees
since we like to feel you generally understand what
we expect of you. However, in any organization of
our size, it is necessary that certain rules and proce-
dures be spelled out in writing. A copy of those
rules will be given to you. Remember, it is very im-
portant that each of us follow the instructions of his
or her supervisor in the good performance of work.
Specific work rules will be discussed with you from
time to time and we will expect you to adhere to
them.
Our type of business requires good cooperation
and teamwork among all our employees. Give each
other a helping hand when bottlenecks occur or
when someone is absent and the workload is a bit
heavier on certain jobs. In this way, all of our work
will be easier.
B. The Allegations, Events, and Objections Involving
Jeannie Watts8
1. The events occurring on or about June 5
Watts was employed on April 23 as a stacker and 2
weeks later became a forklift driver. On or about June 4,
Watts and several coworkers9 were having lunch in
Watts' van and listening to music when Thompson
walked by. Watts jokingly invited him into her office
and Thompson laughed, said no, not now, and continued
on to his vehicle.1o
Watts then avers that on June 5, as she was driving
her forklift, Thompson stopped her, told her to park the
8 The testimony of Walls refers to pars. 6(a), (b), (c), and (g). 7, and 8
of the consolidated amended complaint and Objections l, 3, 5, 6, 9, 16,
and 17.
9 One coworker was Evelyn Marie Gaston.
1 0 Thompson recalled the incident.
BORUN BROTHERS, INC. 159
I · h h · vehicle, bought her a cup of coffeeJ and met wtt er m
his office. 11 According to Watts, Thompson stated that
he wanted to talk to her about the tlnion organizing cam-
paign, that it was his understandifg that authorizat~on
cards were being distributed from Her van. Watts rephed
that the cards were not coming frpm her van, that she
knew where they were coming fro{n, but she would not
tell Thompson the source. Thomps.onse to Everett's com-
ment. The coffee can had been at lthe guards' desk 3 or 4
days prior to Everett's comment$ to Thompson regard-
ing the possible impropriety of thib solicitation.
Other incidents Watts testified to relative to the solici-
tation-distribution rule included tbe distribution of a car-
toon on March 25, during workipg time in the presence
of Jim Rau and Glen Mai 20 and'' two hourly employees
who were laughing. During Oct~ber, Watts received an
invitation from a coworker to ~ party during working
time in the presence of Jim MuiJroony and three other
hourly employees. Mulroony, a ~pervisor, was standing
approximately 8 or 10 feet away ifrom her and observing
the incident from a position abo~e the location of the in-
cident. Mulroony did not testify ~nd Respondent did not
present any other evidence refut~g Watts' description of
the incident. Also, in the latter !lart of April, Thompson
announced during working timd that there would be a
picnic and Bill Buchanan 21 wo¥ld accept donations for
the picnic. Thompson acknowlerged that Buchanan uti-
lized the public address system to solicit donations for
beverages for the picnic which ~as the means chosen by
the baseball team to raise mone~ for the purchase of uni-
forms. The Company sponsors 1 the baseball team. Ac-
,. The desk was located between thelmain entry and the warehouse
area. which was not a working area for ~ rklift drivers.
20 It was stipulated by all parties I Jim Rau and Glen Mai were
supervisors as defined in the Act. While ondent disclaims knowledge
by Evereu or Thompson or these acti . there is no evidence that the
Company or these supervisors, Rau. . Thompson, or Everett, ever
disavowed these activities or otherwise i~formed employees that such ac-
tions were improper. There was no showing that these activities were un-
dertaken on behalf of the Company as • builder or morale, rapport, or
other basis. See International Association J,f Machinists. Toal & Die Makers
Lodge No. 35, etc. [Serrick Corp.] v. N.Jt ... R.B., 311 U.S. 72 (1940). This
same reasoning pertains to the other suJ!ervisors employed by Respond-
st. i
21 Buchanan is an employee who is o~ the recreation committee. The
recreation committee is composed of sejven hourly paid employees and
two supervisors including Thompson. 1hey meet during working time
and try to plan activities for the employi.
cording to Thompson, hourly paid employees are not al-
lowed to use the public address system which is normal-
ly utilized for work-related announcements or company-
sponsored activities, such as the baseball team. Employee
requests to use the public address system for solicitations
or other announcements unrelated to company-sponsored
activities, Thompson alleges, have been consistently and
routinely denied. The baseball tear!' was considered a
company-sponsored activity.
A further incident Watts recalled involved a birthday
party for a supervisor, Rubin Salgatto, which was held
in the breakroom, and began during breaktime but ex-
tended into working time. About 30 to 35 employees at-
tended the party and monetary contributions were solic·
ited from Watts by Peggy Wright, an hourly paid em-
ployee. No one else was present during this solicitation.
Thompson knew there was to be a party for Salgatto
during breaktime. Thompson's office was contiguous to
the party site. Thompson asserts that he was not asked if
the employees could solicit funds for presents or food to
be distributed at this party. Salgatto did not testify.
Therefore, the nature or extent of supervisory knowl-
edge about solicitation for food or presents for the party
was not placed in evidence. However, knowledge by the
highest company officials is not a necessary finding in
determining if Section 8(a)(l) of the Act were violated.
See Dover Garage ll, Inc., 237 NLRB 1015 (1978), and
Montgomery Ward & Co., Incorporated, 115 NLRB 645
(1956), enfd. 242 F.2d 494 (1957).
C. The Events InvoMng Stephen Tarantino22
Tarantino commenced employment with Respondent
on May 14, I 979. Shortly thereafter, he became a forklift
operator working on the receiving dock. In the middle
of August, Tarantino began wearing hats bearing union
logos daily urHil the day he was terminated, September
20, 1979. It is alleged that Tarantino's activities regarding
the organizing efforts of the Union were observed by
Respondent and became the basis for coercive interroga-
tions and discharge.
I. Events of August 28 and 29
The first incident allegedly forming a basis for a viola-
tion of the Act, according to the General Counsel, oc-
curred on or about August 28 when Tarantino attended a
dinner party hosted by the Union at a restaurant located
in a casino known as John Ascuaga's Nugget (Nugget)
located in Sparks, Nevada. Tarantino saw Thompson at
the Nugget that evening and they exchanged greetings.
According to Tarantino, he considered Thompson's pres-
ence at the club mere coincidence. The following day,
Tarantino asserts, as he was driving his forklift, Thomp-
son requested Tarantino to stop work for a moment so
that they could converse. Thompson inquired how many
people were at the meeting the preceding evening to
which Tarantino replied "a few." Thompson again in-
quired "how many," to which Tarantino claims he re-
plied it was privileged information, that he could not talk
•• Objections I. 3, 5. 6. 11. and 16 and pars. 6(e), 6(:). 7. and 8 of the
complaint.
162 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about it on company tiJ. Tarantino then states he formed Tarantino that it was possible to get a change in
drove off and returned to h~ job. shift because Tarantino was a good machine operator,
Thompson asserts that h~ frequented the Nugget with that they did have late shift openings, and that he then
his wife because they were~· esiding in a hotel or motel at suggested to Tarantino that he should put such a request
the time and went out to t e Nugget almost every eve- in writing. Thompson denies handing Tarantino a trans-
ning Monday through Frid y for dinner. Thompson does fer request at the moment because they were out on the
recall an incident with Tar. ntino on August 26, but his floor of the warehouse but does believe that he referred
version is greatly disparate !!from Tarantino's. According Tarantino to the personnel office to acquire the requisite
to Thompson, Tarantino dl. ove up to Thompson on his forms and to make his wishes for a transfer known at the
forklift and remarked, "A whole bunch of us saw you personnel office. Thompson also denies discussing with
last night at the Nugget out half-lit." Thompson re- Tarantino, at this time or at any other time, unions in
plied that he did not see apyone there, that he had not general or Tarantino's specific union activity or procliv-
noticed any employees. Tijompson did recall having a ities. The discussion, assertedly, was of a strictly personal
few drinks that evening ai:d playing the slot machines nature involving Tarantino's financial difficulties involv-
and admitted to being " robably half-lit." Thompson ing the repossession of his car and his furniture and the
does deny having knowled e of any employees' presence fact that his wife had left him and he needed extra
at the casino until Tarantinp's comments and does recall money to cover legal fees, which were the matters ne-
asking Tarantino where T~antino was sitting when he cessitating the transfer to another shift to facilitate the
saw Thompson. Tarantino id not mention the employ- procurement of a second part-time job and additional
ees included in the group hat saw Thompson that eve- income. Specifically, Thompson denies telling Tarantino
ning nor did he state that t ere was a union meeting con- that the employees could not do any better with the
ducted at the Nugget. Thqmpson denies inquiring as to Union and that if the employees did acquire union repre-
why Tarantino was there, [.' tating that "the Nugget was sentation that they would lose pay and benefits. It is
~~o~~t~h~h~n~~;li~;e~~a~~d m~~=~~~::to7~e;;!~~e~:?. noted that Tarantino did not dispute discussing his finan-
cial or marital difficulties with Thompson.
2. Events o~ September 10
Another incident allegedly violative of Section 8(a)(l)
of the Act occurred in the early part of September, ap-
proximately on September 10. Tarantino claims that he
requested a transfer to the . ight shift at a time he was in
the personnel office and saiv Gary Thompson. Tarantino
avers that Thompson, aftet giving the form used to re-
quest a transfer to Taranti o, asked to speak to Taran-
tino, stating, "He told me ot to misunderstand him, that
he was curious for his OWI!l knowledge, as to what the
Union had offered to do i11 r us as the employees of the
company." In reply, Tara ino assertedly inquired what
the Company was doing fi r employees. Thompson was
then said to have stated "t at the Union couldn't do any
better for us than they h•d done for anybody else in
Nevada, and that it would :result, if we went along with
the Union, it would resultjin a loss of pay, or lowering
of wages, and less benefits. ' After making this statement,
the bell rang for coffeebre .k and Tarantino told Thomp-
son it was time for him tOil have his coffee and left. Ac-
cording to Tarantino, thatE•• as the extent of the conver-
sation and it did not cont in details such as discussions
involving collective-bargai ing negotiations or the meth-
ods employed by unions a d companies to reach agree-
ments in their contract neg~tiations.
Thompson did recall T{antino inquiring if he could
get a transfer to the late s ift and stated that Tarantino
gave as his reason that h wanted to get a second job
which his then current assi nment to the 7 to 4 shift pre-
vented. According to Th mpson, he represented that
Tarantino told him that Ttantino located a job that he
could work at in the morn ng and that if he could carry
two jobs he could get hi self out of debt. Thompson
disclaimed knowing what the second job was to be but
knew that Tarantino was Ia "slot machine mechanic or
something to that effect." !Thompson claims that he in-
3. Events of September 19 and 20
On September 19, Tarantino attended a hearing at the
National Labor Relations Board involving objections to
an election. Prior to attending the hearing he showed the
subpena he received to attend said hearing to Personnel
Manager Patrick Kennedy. At the objection to election
hearing, McConnell was present as well as Dennis Mala-
mut. The following day, September 20, Tarantino went
to work and in the afternoon had occasion to go to the
personnel office to inquire about a raise he felt was due
and owing. He discussed the raise with Patrick Kenne-
dy.23 When leaving that day, Tarantino noticed that his
timecard was not in the rack but it did not occur to him
that he had a potential problem with his Employer be-
cause he had previously observed certain clerical em-
ployees remove timecards for personnel office purposes.
Later that day, he was paged and told to go to the
personnel office. When he arrived at the personnel
office, both Patrick Kennedy and Dennis Malamut were
present. Malamut did most of the talking. Malamut said
"that they had received several complaints about my
union activity on company time, and that they felt that
one complaint they would take with a grain of salt.
Three or four complaints, they would tend to believe the
allegation. Then they told me at that time they felt that
they had no other alternative-no other recourse but to
terminate me. And, I asked them, what was the reason-
well, the actual reason. Who was accusing me of this?
And I asked them to bring those people forward, so I
could answer to their faces what was going on. And
they said they didn't have to do that." According to
Tarantino, he then inquired as to why he did not get a
•• II should be noted that Patrick Kennedy did not testify. The reason
for Kennedy's failure to testify was not explained.
BORUN BROTHERS, INC. 163
warning. The supervisor indicated ~hat the violation of
the solicitation rule was one of sevetal grounds they con-
sidered to be a basis for immediat4 .. · termination. Taran-
tino then assertedly inquired why! Jeannie Watts was
warned for violating the solicitatiorl rule and he was not
accorded similar treatment. Malarrjut assertedly replied
that he was not aware of the cirtumstances of Watts'
case and asked Tarantino to step o4tside the office while
he reviewed Watts' file. Tarantiqo stated he left the
office and remained outside apprbximately 5 minutes.
Kennedy, he believes, then asked him to reenter the
office. Malamut then told him that' the circumstances in
Watts' case were different and the felt they still had to
terminate him and that Kennedy would pay whatever
money was due and owing. Mala1'' ut then left. Accord-
ing to Tarantino, he was interview d prior to being hired
by Malamut and did discuss the gounds for termination
without a prior warning. Accordi~g to Tarantino, Mala-
rout stated that the company policy required the immedi-
ate termination for violations of r~les regarding falsifica-
tion of employment application,~' tghting, and stealing.
Those are the only three grounds or immediate termina-
tion, according to Malamut, at t e time of his employ-
ment interview. Union solicitatio1 was not mentioned as
a basis for immediate termination uring the interview.
Tarantino did not deny that .· e had been soliciting
during working time. Similar to ~atts' testimony, Taran-
tino said that the operation of thel" warehouse was highly
disorganized, that there would be 1many times when they
would be stationary on their fork~fts waiting for the res-
olution of a problem as to wherej they should take mer-
chandise or where merchandise ~hould be stacked. Tar-
antino estimated that, as a minim~m, 10 times a day fork-
lift drivers would be standing o~ sitting waiting for su-
pervisors to decide what to do ~ith particular merchan-
dise; each time they would spend! from 2 to 7 and 8 min-
utes awaiting such decisions. D~ring these hiatuses in
work, he was never instructed Jiot to talk to other em-
ployees, nor was he ever told t'*t there was a rule for-
bidding talking while he was going about his work.
There was never a discussion br a listing of matters
which were forbidden as subjeqts of discussion during
working hours. Tarantino did npt have an occasion to
speak with supervisors about n4:mwork related subjects
but he did hear such matters a~ company picnics being
announced over the public addfess system; he recalled
observing a party at the warehduse at which employees
in the shipping area participate~ after breaktime. Upon
his employment, Tarantino didj receive a copy of the
booklet entitled "Welcome to Thrifty," but he did not
receive any oral or written stat¢ments concerning union
solicitation other than the booklft nor did he receive any
warnings or explanations regarding union solicitation.
In addition to counseling Wbtts on August I, 1979,
Malamut admitted that he waJ' the individual who in-
formed Tarantino that he was erminated on September
20. According to Malamut, he. told Tarantino that the
Company had received numer1us complaints from em-
ployees that he was soliciting Jon behalf of the Union
during times when he should pe working and that the
complaints stated that Tarantinjo was interrupting other
employees during their workifg time. Malamut stated
that he inquired if Tarantino knew what the Company's
policy was regarding solicitation to which Tarantino re-
plied in the affirmative and went on to explain that he
could solicit at breaktimes, lunchtime, and before or after
work. Tarantino, according to Malamut, stated that he
might have possibly solicited during working time, "on
company time." In contravention of Tarantino's testimo-
ny, Malamut specifically denied disc;..ssing with Taran-
tino the grounds for discharge from employment at
Thrifty or talking about any work rules during his em-
ployment interview. He stated that he could recall very
clearly Tarantino's interview even though he did inter-
view "a couple of hundred prospective employees." It
appears that what Malamut did mean was that he utilized
a standard format during the interviews and that he
could not remember Tarantino's interview word for
word; rather, he followed the standard format.
According to Malamut, dischargeable offenses without
prior warning include fighting, stealing, and falsification
of the employment application. It is interesting to note
that Malamut did not mention solicitation as a discharge-
able offense without prior warning and that the factors
listed by him during his testimony coincided with the
factors Tarantino claims Malamut listed for him during
the employment interview. However, Malamut specifi-
cally denies discussing with Tarantino or any other em-
ployee the specific standards of conduct at Thrifty. Ma-
lamut does not know of any documents that incorporate
a list of the offenses the Company considered discharge-
able offenses without prior warnings. Malamut stated
that Everett establishes the company policy which is not
in writing. It is noted that when describing the basis for
Tarantino's discharge, Malamut used the term "company
time" but claims that he told Tarantino that he was solic-
iting on working time and denies using the words "com-
pany time" when addressing the subject matter with Tar-
antino. It is also noted that only one employee com-
plained about Tarantino's activities, contrary to Mala-
rout's representation to Tarantino that he had received
numerous complaints from employees. This misstatement
of fact is one of the reasons Malamut's testimony is not
credited.
Everett testified that he had a role in the termination
of Tarantino. According to Everett, on or about Septem-
ber 19, Gary Thompson informed him that an employee
named Diana Crabtree complained that Tarantino had
been soliciting for the Union on "work time." Everett as-
serted that he told Thompson that if the allegation was
supported by a written statement from the complaining
employee it would be grounds for termination, but with-
out such a written statement management could not do
much about the complaint. The next day Everett stated
he received a call from a supervisor named Brocker-
man24 who stated he got a written complaint from the
employee. The employee complaint was read to him.
The employee complaint states, "On three separate occa-
sions I witnessed, during business hours (Not on brakes
[sic] or lunch, Steve Tarantino soliciting for the Union.
Once approx. 1 week ago in A-l and handing out union
2 4 Brockerman did not testify.
164 ii DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign-up card. Again right Jner in front of section 401 change, there was no direct mention of the union
while on his fork-lift to smlne younger personel. Again but due to the fact she wears the same union cap I
yesterday the 18th, I witne$ed this again. I don't know just surmised she was speaking of a union contract.
the names of the people h~ spoke to and did not hear The way Mr. Gilbert spoke of his interest in a
anything. I only saw cards qhange hands and know they union being brought in, I would say he has and will
were talking." (Emphasis su~· plied.)25 Based on Brocker- continue to make an untiering [sic] effort towards
man's disclosure of the con ents of Crabtree's statement, completing this goal. I am myself dead against any
Everett claims that he tol Brockerman to terminate union being brought in and said that if you must be
Tarantino. Everett also be~i • ves he made the same state- forced to listen to someone in regards to the union
ment to Malamut. There w s no explanation as to why that your time on the job is not the place or proper
Tarantino was discharged ile Watts received warnings time to do so, and therefore thought it would be in
and retained her job. : the best interests of myself and others to submit this
J information to the people in charge of this dept. 28
D. The Events Jnvolring Robert Gilbert26
It is noted that the letter does not contain any allega-
Robert Gilbert did not te$tify. Everett testified that he tion that Gilbert distributed authorization cards or that
made the decision to termint.te Gilbert. The basis for the he was soliciting signatures thereupon. Also, Bledsoe's
~~~i~~on~a~fc~~~n~~rt~;~; 2t!, ;a~:t:e le~;~! 0:/ 1~j;~ letter was the only statement contained in the record that
Northcutt was at the time me temporary personnel direc- purports that Respondent had a rule which forbade dis-
tor at the Sparks facility. orthcutt, according to Ever- cussing union matters during working hours. It is further
ett, informed him that Gibert had been soliciting on noted that the discussion, according to Bledsoe, occurred
behalf of the Union during !working time which was the during one of the previously described hiatuses in work
subject of an employee co~~laint. The complaining em· occasioned by the confusion of starting up a new ware-
ployee, Robert Bledsoe, w* requested to give a written house, a fact admitted by Respondent. Furthermore,
statement. Upon receipt of the written statement, North· there is no explanation as to why Gaston, who was men-
cutt again telephoned Evirett and read the statement tioned by Bledsoe as having engaged in similar activity,
supposedly written by Bled oe concerning Gilbert. Bled· was not similarly treated.
soe did not testify. The stat ment reads as follows: Everett stated that after hearing the rendition of Bled-
soe's statement over the telephone he ordered Gilbert
On the 28th of Augu~t at 2:30 in the afternoon I terminated, asserting he gave Northcutt the authorization
was waiting to get my forklift past an area in the to terminate Gilbert, telling him to caJl Gilbert and con-
warehouse that someqne was trying to clear. An- front him with the allegation and, if Northcutt deemed it
other machine was b~'ng delayed at the same time
which was operated b a Mr. Robert Gilbert. While necessary, to terminate Gilbert. 29 The parties stipulated
that prior to Gilbert's termination he received no written
we were waiting I notced Mr. Gilbert's cap he was
wearing had an insig*"a on the front of it. I asked counseling or warning regarding the Company's no-
Mr. Gilbert the mea ing of the insignia and he solicitation/no-distribution rule. The parties further stipu-
stated it was a local nion which was in our area. lated that Bledsoe received no discipline including a
He then made a gesture for me to be quiet because written counseling or warning notice arising out of the
we were not allowedJby the company policie [sic] incidents referred to in his written statement even though
to discuss the matter. Without anyone saying any- he admitted in his written statement that he initiated the
thing else to Mr. Gil ert he went on to say, I am conversation.
bringing in an $8 pe~· our union in here, I've been Malamut testified that he did sit in on Gilbert's termi-
working on it for so time. He then proceeded to nation but did not see Bledsoe's complaint nor did he
state that he had inf mation about some financial know that Bledsoe was the party that made the com-
facts about the Thrift~· Corp. saving some $30,000 a plaint which resulted in Gilbert's termination. All he
year by there [sic] b ilding this warehouse in the knew was Gilbert was being discharged and he did not
Sparks, Nev. area w. ich would more than cover even know there was a complaint. Malamut further testi-
any additional costs in'i wages that might be incurred fied that Gilbert was considered a below average em-
by the addition of al·union contract at our ware- ployee but stated that "he was not fired because of that."
house. These stateme ts were made to me and two Everett had an occasion after the termination to see Gil-
female employees wh I can physically identify but bert and inform him that the basis for his discharge was
do not know by namt··. At that point the aisle was violation of company policy, the no-solicitation/no-distri-
cleared and I went ab ut my work again. Later that bution rule.
day an Evelyn Gasto. made a statement about her
wages not being edough but that would soon
25 It is noted thai. comrary t) Malamut's testimony and Tarantino's
represematio~ of the testimony, 1~ complaint itself does not allege that
the complammg party was mterrufed durmg working hours or was pre·
vemed from working during work· g hours.
•• Objections 5. 6, 15, and 16 an complaint pars. 7 and 8.
27 Northcull did not testify.
•• It should be noted that the copy of the letter submitted in evidence
was not extremely clear and therefore the above quote may not be entire-
ly accurate.
29 It was noted in the record that Everett's affidavit stated that, on
hearing Bledsoe's written statement, Everett instructed Northcutt to ter·
minate Gilbert, not to confront Gilbert with the material. and if necessary
terminate him. This modification of prior testimony was not explained on
the record. Furthermore, the failure of Northcutt to testify leaves the
record devoid of evidence probative of the necessity to terminate Gilbert.
BORUN BROTHERS, INC 165
E. The Events Involving Evelyn rwarie Gaston 30
Gaston commenced employment jwith Respondent on
May 11, 1979, and voluntarily cease6 her employment on
June 2, 1980. The first matter she tjestified to involves a
meeting conducted by Everett iq the latter part of
August. Most of the warehouse enjployees attended the
meeting and during the meeting E~erett allegedly stated
"that he knew who had signed th¢ cards and that they
could get fired for it." Gaston alsol averred that Everett
stated that he "did not want any sqlicitation of union au-
thorization cards, that the ban was ~ot limited to specific
locations or times of day, but was! rather a general ban
on solicitation of authorization carps. According to Ev-
erett, he held two meetings at tht warehouse with the
entire work force. The first meetiqg was held on June 1
and the other on August 24, 1~79. He asserted that
during these meetings he !explained the no-
solicitation/no-distribution rule tq the employees. He
claims that his explanation wa~ that the Company
wanted no solicitation and no dist?bution of any type on
working time but that the emplqyees were free to do
what they wished during their bfeaks, lunch hours, or
before and after work. Everett jclaims he further ex-
plained that, while they were on ~he floor working, the
Company wanted no distributionl or solicitation of any
type. During the meetings, Everet avers, he gave the ex-
ample of a Tupperware party or attempts to solicit au-
thorization cards. j
Another incident involving Ga$;on allegedly occurred
after the election, on or about ~ovember 19. The inci-
dent involved a conversation with Thompson who re-
quested that she get off her lift ahd talk with him. Also
present, according to Gaston, jas Jim Brockerman. 31
According to Gaston, Thompson! initiated the conversa-
tion by stating, "[l]t had come to ~is attention from three
warehouse employees that I wps soliciting a petition
against Thrifty for union activitifs." Gaston asserts that
she responded by stating she did !not know what he was
talking about. Thompson then ~tssertedly told her that
she knew the consequences of such solicitation. Gaston
claims she responded by informjng Thompson that she
did not know what he was talki$g about, that she knew
her Federal rights and that Th4mpson knew what her
Federal rights were. According! to Gaston, Thompson
did not explicate further regarding when she was sup-
posedly soliciting or which Employees complained.
Thompson was present during Gaston's testimony and
stated that he has no recollectioh of the incident related
by her and definitely did not!'' recall discussing with
Gaston anything about unions or,, a petition to the "Labor
Board," even though Gaston alfged that Thompson in-
quired about her activities of so iciting a petition against
Thrifty after the election.
As previously indicated, she ~ad never been informed
about a management rule requirihg prior permission from
management before posting an~ material on the lunch-
room bulletin board. Additiona~ly, she claims she never
heard of a company rule pro~ibiting employees from
chatting with one another aboyt matters not related to
,,
30 Objections 2, 16, 17, and 24 and co~plaint pars. 6(h). 7, and 8.
01 The parties did not explain Brocketan's absence from the hearing.
work during the course of their performance of duties
within the warehouse. In fact, Gaston stated that she had
many conversations with supervisors about matters unre-
lated to work during working time. One example she
gave was conversations with her supervisor, Chuck Rice,
about baseball. Gaston was on the Thrifty baseball team
which induced many conversations with Rice, a baseball
aficionado, about that subject. They had such conversa-
tions almost every time they saw one another which was
about four or five times a day. Baseball was not the ex-
clusive subject matter of their conversations; they dis-
cussed many different subjects. 32
The General Counsel inquired of Gaston about an inci·
dent during the beginning of December 1979 which is
characterized as illustrative of the type of discussions be-
tween supervisors and coworkers during working time
about nonwork related matters, but is not alleged in the
complaint to be a violation of the Act. The incident re-
ferred to by Gaston involved several coworkers and Su-
pervisors Mulroony and Rau. As Gaston was dropping
merchandise off at a specific section of the warehouse,
she passed by Mulroony and two coworkers who were
passing a little card around. The card was placed into
evidence and was a card with a joke on it. She stopped
and the card was handed to her. She briefly inspected
the card and returned it. The incident occurred right
after lunch during worktime. One employee involved in
the incident was at her work station and the other one
was about 25 feet away from her work station. It was
stipulated that the personnel files of the Company were
searched and that such search failed to produce the exist-
ence of any warnings issued to the individuals involved
in the joke card incident. On the same day, Gaston saw
the card in Jim Rau's possession. She saw Rau with the
card during the afternoon on working time. Rau also
presented the card to her in front of the receiving office.
Rau wanted her to look at it so she grabbed the card,
inspected it, and returned it to Rau saying she had al-
ready seen it. Rau did not say anything to her but was
laughing, according to Gaston. Gaston did not receive
any discipline for looking at the card. Thompson dis-
avows any knowledge of Rau's and Mulroony's activities
with regard to the card, stating the first time he had
heard about it was when Gaston so testified. Thompson
further testified that he had never been informed that a
supervisor was distributing nonwork-related documents
during working time. He did recall other incidents where
nonsupervisory employees were accused of distributing
nonwork-related material during working time which
were made the subjects of investigations and, where ap-
propriate, discipline was imposed. He speculated that if
he had been informed that the supervisor was distribut-
ing nonworkrelated material during working. time, a simi-
lar investigation would have been conducted and appro-
priate disciplinary action taken where warranted.
32 H was stipulated by the parties that Chuck Rice was a supervisor
within the meaning of the Act at the time the alleged events occurred.
Rice did not testify.
166 DECJSJONS OF NATJONAL LABOR RELATlONS BOARD
F. Everett's N.~vember 1 Speech
Objection 9 alleges that verett, during a speech given
on November I, 1979, mad substantial and material mis-
representation of fact at a tife calculated to preclude the
opportunity for an effective! reply. The speech was made
on November I, the day bJore the election. According
to Watts, during the speec Everett held up a bookl~t
which he represented to be the Union's constitution. It 1s
averred that Everett claim d that the Union's constitu-
tion stated that if a memb did not pay the union dues
that the Union could confllscate the member's property
even if the member had wi~hdrawn from the Union and
that the Union could col·Jscate an employee's home,
leaving them homeless. T e booklet held up was de-
scribed as thick and com rised of white paper. Watts
stated that Everett did not read from the booklet. The
subject matter arose, accor. ing to Watts, because Ever-
ett stated it was the last ancl final time to talk to the em-
ployees before they voted ~nd he wanted the employees
to be knowledgeable abou~· that particular article in the
Union's constitution. She d es not believe that he cited a
particular article or provis on that could be inspected.
The meeting was conducte at 7 a.m. on November I
with a majority of the wa house employees in attend-
ance. Watts does not recall jf Everett had any notes with
him. She just recalled the thick booklet that he referred
to as the Union's constit~· tion. Watts did not recall
whether employees asked uestions during the meeting
but stated that she had nev r seen the Teamsters consti-
tution or bylaws, just the co stitution of Local 533.
According to Everett, du ing the November I meeting
he did have a copy of the ~nternational's constitution in
addition to some typewritte~ notes. He opened the meet-
ing by reading two paragr[· hs from his notes and then
informed the employees tha he would like to read a few
articles from the Union's co stitution. Everett states that
he read from the constituti n verbatim and then briefly
went over the material he ¢overed with the employees.
The meeting took about ani! hour. Everett informed the
employees of where the elet· tion was to be held and the
procedures followed in con ucting the election. Everett
says he urged the employ s to vote, informing them
their vote was secret and n one would ever know how
they voted. It is also ave . ed by Everett that he in-
formed the employees thati regardless of the outcome
they were the Company's employees and that no em-
ployee, either prounion or ~ntiunion, had any reason to
fear retribution by the Com ny.
Everett stated that one o the portions he read dealt
with the constitution's provi ions pertaining to collection
of dues, lines, and assessmen s. 33 Then, according to Ev-
"" The one portion read by Everlu is art. XXVI, sees. I through 3,
which provide as follows: l
Section I. The provisions of Its Constitution relating to the pay.
ment of dues, assessments, lines or penallies, etc., shall not be con·
strued as incorporating into an union security contract those re·
quirements for good standing m bership which may be in violation
of applicable Jaw, nor shall the be construed as requiring any em·
ployer to violate any applicable 'aw. However, all such financial obli·
garions imposed by or under this! Constitution and local union bylaws
(and in conformity therewith) e legal obligations of the members
upon whom imposed and enforce in a court of law. [Emphasis ap·
erett, the employees asked questions such as when they
would get results of the election to which he replied that
the Board agent would count the votes at the close of
the polls and that they probably would know who won
by 6 or 6:30 that evening. Everett then informed the em·
ployees that they would keep someone on telephone
duty in the event that employees wanted to telephone
after 6:30 p.m. to ascertain the results of the election. He
also stated that an employee inquired about the fines and
assessments section that he read from the Union's consti-
tution and he also inquired about how far the Union
could go to collect moneys due and owing it, and he re-
plied that they were collectible in a court of law and the
Union could go to court to collect dues and fines and as-
sessments. Everett did not recall who asked the question
which was raised immediately after he read from the In-
ternational constitution. He believes the employee in-
quired whether that section meant the employees could
lose their homes and he believes he answered that under
the article that dues, fines, and assessments were legiti·
mate debts that were enforceable in a court of law and
there were certain procedures the Union would have to
go through. He stated it was possible they could eventu-
ally get a judgment in a court of law against the employ-
ees but he does not recall saying anything else. Everett
does not recall saying anything about enforcement of
judgments. Everett also cannot recall anything being said
about confiscation of property.
II. ANALYSIS AND CONCLUSIONS
Respondent argues that the counsel for General Coun-
sel has not proved the allegations by a preponderance of
the evidence. The key to the resolution of most of the
issues is recognized by the parties to be the question of
the validity of the no-solicitation/no-distribution rule.
Respondent contends that the term "company time" is
not overly broad for it clearly refers to time which be·
longs to the Company; i.e., the time the employees
should be working for the Company. Contrary to this
contention, the Board has repeatedly found that the use
of the term "company time" in a rule prohibiting pro-
tected activity is unduly ambiguous and overly broad,
rendering the rule susceptible to interpretation that so-
licitation is prohibited during all business hours, which is
unduly restrictive of the employee's rights protected by
Section 7 of the Act, and hence is presumptively unlaw-
ful. See Plastic Film Products Corp., 238 NLRB 135
(1978), citing Florida Steel Corporation. 215 NLRB 97
(1974), and Stewart-Warner Corporation, 215 NLRB 219
parently was supplied by Everett in the copy introduced into the
record by Respondent.]
The two paragraphs read by Everett from a prepared speech state:
During the times we have had our meetings together the one subject
that I've not discussed with you is that of the Rules and Regulations
adopted by the Teamsters and contained in their International Con-
stitution. This is a document containing one hundred eighty-eight
(188) pages which I would suggest that all of you who wish to
become members of the Teamsters become familiar with before
making your final decision. This document covers everything from
the salaries of the International Officers to the election procedures
for each Local and includes methods of dues, fines, assessments and
other charges.
I BORUN BROTHERS, INC. 167
I
l
(1974). See, generally, Fayetteville I~dustrial Maintenance,
Inc., 218 NLRB 888, 889 (1975), ar1d Clinton Corn Proc-
essing Company, a Division of Standj'rd Brands Incorporat-
ed, 253 NLRB 622 (1980).
Respondent, citing Essex Interna!lpnal, Inc., 211 NLRB
749 (1974), asserts that its represent4tives cured the ambi-
guity of the company handbook byi clearly conveying to
employees its intent to permit solicitation during "work-
ing time, i.e. clock time other than break or lunch time."
Everett testified that he explained lhe no-solicitation/no-
distribution rule to Borun employ~es at two meetings,
one conducted June I and the othtr on August 24. The
evidence, rather than supporting t~e contention, demon-
strates the existence of confusion., among Respondent's
representatives regarding the mealjling of this rule. For
example, in a letter to the Union, t~e Company's director
of industrial relations, Everett, defl. med the rule as pro-
hibiting solicitation during "workipg hours."34 The use
of the term "working hours" is ~sceptible to the same
ambiguous and overly broad inter relation of undue re-
striction as the term "company ti e." See Essex Interna-
tional. supra, and McBride's of Na lor Road, 229 NLRB
795 (1977). Additionally, while verett was explaining
the rule to employees, he referre to the "Welcome to
Thrifty" handbook which has heJjetofore been found to
be presumptively violative of the Act. Duhig's August 1
complaint about Watts refers to 4-orking hours. In fact,
when Everett was asked what, if .ny, was the difference
between "working hours" and "1-vorking time," he re-
plied that it was a "matter of senjlantics," which clearly
demonstrates his Jack of underst~nding of the scope of
permissible circumscription of prqtected activities. Thus,
the testimony adduced by Respopdent is insufficient to
overcome the presumption of unlawfulness of the rule.
The record fails to demonstrat~ that Everett or any
other representative of the Comwmy communicated the
rule to its employees in such a wiy as to convey clearly
and unambiguously an intent to p~rmit solicitation during
breaktimes or other periods whe~ employees are not ac-
tually at work. Accordingly, I fini:l the rule invalid on its
face. l
Respondent further argues thatithe rule was lawful for
it further provided that employets "are not [to be] dis-
turbed at your working stations ~hile on the job." Addi-
tionally, it is contended that the $upervisory staff repeat-
edly explained the rule to empl9yees and such explana-
tions conveyed clearly an intent ,to prohibit solicitations
only during "working time." E'l/en assuming, arguendo,
that the rule, as promulgated dnd published, is not a
prima facie violation of the Act, !the manner in which it
was applied is found to be unlawful. As stated in Mueller
Brass Co., 204 NLRB 617, 620 (1~73):
The Board has heretofore pecided, with court ap-
proval, that an employer m!IY not apply a no-solici-
tation rule, valid on its fa~e, to forbid employees
I
34 The letter states: I
Please be advised that Ms. Jeannie Watts has been counselled for her
solicitation of fellow employees duri~g working hours. Solicitation of
employees during working hours is in ~iolation of company rules and
as such a conrinuation of those acti1'ns by Ms. Watts will result in
her discharge. [Emphasis supplied.] .
standing in line to clock out a few minutes before
quitting time, as was customary at the plant, from
soliciting fellow employees in the line. Exide Alka-
line Battery Division of ESB. Inc. v. N.L.R.B., 423
F.2d 663 (C.A. 4, 1970), enfg. 177 NLRB 778.
It is undisputed that the working conditions in the
warehouse were at times chaotic, necessitating frequent
work stoppages. During these work stoppages, employ-
ees and supervisors conversed about a variety of subjects
unrelated to work. Accordingly, there is an absence of
demonstration by the Company that the rule was needed
to maintain discipline or production in its warehouse, or
was otherwise justified.
The General Counsel also alleges that the no-
solicitation/no-distribution rule was enforced in a dis-
criminatory manner; and hence, even if it is found that
there was an adequate explanation of the rule, it was in-
adequate to abate the coercive effect of such discrimina-
tory application.
Everett testified that, pursuant to company policy, if it
has notice that a rule has been violated, a written warn-
ing will be issued depending on the type and number of
offenses. Employees are also given oral warnings. Ac-
cording to Everett, the Company has a system of pro-
gressive discipline. 35 In most instances, rule infractions
normally result in oral counseling of an employee, except
in those instances where there was gross misconduct or
"a direct violation of company rules or policies." Oral
counseling is utilized in those instances where the super-
visor believes that the employee has a problem that can
be corrected "such as attendance. First you talk to the
employee and then put it in writing 36 and then probably
suspend them and eventually terminate them if they
don't improve."
Also, according to Everett and Malamut, the follow-
ing violations result in automatic discharge: any theft,
any act of dishonesty including falsification of the appli-
cation for employment, gross misconduct such as gross
intentional violation of a company rule, violence of any
nature, and certain criminal acts. The only distinguishing
factor between a gross intentional violation of a compa-
ny rule warranting discharge and one warranting an oral
warning is the delineation given by Everett that the "em-
ployee has a problem that can be corrected such as at-
tendance." No other distinguishing characteristics be-
tween the various infractions were offered in evidence.
The testimony of Gaston and others that she was
never informed of a company rule against talking during
working time is uncontroverted. Therefore, it is conclud-
ed that the subject matter or the nature of the activity
engaged in during working time, as well as the individual
involved, determines to some extent the characterization
of the activity as a violation of the no-solicitation/no-dis-
tribution rule. The evidence in this case fails to demon-
strate that the rule was justified by a need to maintain
35 The handbook entit!ed "Welcome to Thrifty," as EvereH recalls.
does not contain a description of Respondent's system of progressive dis·
cipline.
36 Everett explained that the Company has no preset number of oral
counselings that require the issuance of a writlen warning. Additionallv.
there is no specified number of writlen warnings that leads to discharg~.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discipline or production in )s warehouse for admitted su-
pervisors engaged in nonwdrk-related conversations and
distribution of jokes durin& working time. See Plastic
Film Products Corp., supra~ That one of the activities
Thompson engaged in coul be described as charitable in
nature and therefore exemp. from application of the rule
under Board law is an unpejrsuasive argument relative to
motive, for Everett, after frst indicating that Thomp-
son's actions fell into a gre area, later testified that he
believed they were violati e of the rule. Holding this
belief, Everett suggested tt Thompson that the coffee
can used for the collection !of contributions be removed.
Everett admittedly never !ontemplated recommending
that disciplinary action be aken against Thompson and
no reason was advanced f. r such a failure, particularly
since Everett testified that tlhe rule applied equally to su-
pervisors and hourly emplot· ees. This failure to proscribe
similar activity among em loyees and supervisors, co-
joined with the admission that Tarantino was a good
worker and Gilbert, 37 l!!lthough an unsatisfactory
worker, was discharged slely for a single violation of
the no-solicitation/no-distri ution rule, is found to be a
overreaction to the single iolation of work rule which
was observed by other employees and supervisors only
in the breach. This "overr¢action" to the violation of a
work rule not shown to betnforced or needed to main-
tain production supports i vidious motivation and is an
indication of pretext. See . eptune Water Meter Co. v.
N.L.R.B., 551 F.2d 568, ~70 (4th Cir. 1977); Flowers
Baking Company, Inc., 240~NLRB 870, 872 (1979); and
Sea-Land Service, Inc., 240 LRB 1146 (1979). That Ev-
erett and Thompson discla m knowledge of some super-
visors' breaches of the Colflpany's no-solicitation/no-dis-
tribution rule is not an excJ:ilpatory factor, for Respond-
ent has failed to demonstrtte that special circumstances
obtained. See J. S. AbercrOttz.bie Company, 83 NLRB 524,
529 (1949), enfd. 180 F.2d;578 (5th Cir. 1950). Supervi-
sory status is sufficient, in ~his case, to conclude that the
actions of Rau, Mulroony, rand others in similarly strate-
gic positions translated to heir subordinates the policies
and desires of Respondent. See N.L.R.B. v. Cities Service
Oil Company, 129 F.2d 933J 935 (2d Cir. 1942).
This finding is buttresselby the contents of the com-
plaints regarding Gilbert's nd Tarantino's activities. The
complaint of Bledsoe stat that he was waiting to get
past "an area in the warehpuse that someone was trying
to clear," he noticed Gilb['
1
t was wearing an insignia on
his cap, and asked Gilbert , what the insignia meant. Gil-
bert then allegedly stated that it was against company
policy to discuss the Uni . n, and then launched into a
statement in support of th¢ Union. Bledsoe, who admit-
tedly initiated the convers!·· tion, was not even shown to
have been warned about alking during these unsched-
uled hiatuses in work oc asioned by blocked passage-
ways, or at any other tim~, yet Gilbert was discharged
;
37 Respondent placed in the r~ord evidence that Tarantino and Gil-
bert were offered unconditional r instatement and appropriate backpay.
Each refused orally and in writin the offer of reinstatement and accept·
ed the backpay. The efficacy of 1he stipulation will be renected in the
remedy and order sections of thisi1Decision. This stipulation was entered
into by Respondent with the clea understanding that the offers of rein-
statement and back pay do not con titute an admission of liability, wrong-
doing. or a violation of the Act.
for his participation in the conversation. Furthermore,
Malamut's explanation for the discharge failed to demon-
strate that it was necessitated by a decision that applica-
tion of the progressive discipline system was determined
to be futile or unwarranted based on a determination that
a verbal or written warning could or would not result in
future adherence to the rule.
The complaint regarding Tarantino came from one in-
dividual who claimed to have seen Tarantino distributing
"union sign up card[s]" on three occasions during "busi-
ness hours [nJot on breaks or lunch]." Malamut, who
"sat in" on both Gilbert's and Tarantino's discharges as
well as counseling Watts, could not explain the disparity
in discipline. Such inconsistency in reasons and actions
are also indicative of discriminatory motive.
The warning issued to Watts centered around activity
which, as in the case of Tarantino and Gilbert, was pro-
tected concerted activity not subject to limitation by an
invalid no-solicitation/no-distribution rule. Even assum-
ing that Respondent had a valid rule, the incidents in-
volving Watts, Gilbert, and Tarantino were nothing
more than conversations and activities similar to those
instances of conversations or solicitations on the ware-
house floor sponsored and/or condoned by Respondent's
representatives for various purposes including company
picnics, assisting the company baseball team, helping in-
jured coworkers, celebrating a supervisor's birthday, the
inevitable conversations that invariably occur between
coworkers and employees and their supervisors during
work stoppages, and the passing out of jokes or other
material. Despite these varied, widespread, and indis-
criminate activities described by the witnesses, it was
only after the advent of the union organizing campaign
and only for activities which would be protected by Sec-
tion 7 of the Act that Respondent required cessation to
the point of threatening and/or disciplining the violators,
discharging two such sinners, and threatening the other
violators with similar action.
In these circumstances, it is concluded that Respond-
ent enforced its no-solicitation/no-distribution rule for
the purpose of impeding or discouraging its employees in
the exercise of their right to engage in union or other
protected concerted activities; that the rule was applied
in a discriminatory manner in violation of Section 8(a)(1)
of the Act; and that such discriminatory application by
discharging Gilbert and Tarantino and disciplining Watts
is in violation of Section 8(a)(3) of the Act.
Other indicia of motive are the remarks attributed to
company officials by Tarantino, Watts, and Gaston,
whose accounts I find are supported by a preponderance
of the evidence.
While Thompson denies discussing the distribution of
authorization cards with Watts on or about June 5, he
does admit seeing her, Gaston, and another employee in
her van and then talking to her shortly thereafter. The
subject matter of these conversations is disputed, with
Thompson claiming that he offered Watts a managerial
position which Watts allegedly denied because "(t]his
place is all screwed up" and "her family history of union
association." Watts' claim that she had applied for a
managerial trainee position, which she was not given, is
BORUN BROTHERS, INC. 169
unrefuted. Therefore, based on admit/ed facts, reasona.ble
inferences to be drawn therefrom, an~ inherent probabil-
ities, 38 Watts' testimony that Thomp~on inquired if union
authorization cards were being distriputed from her van,
further asked if Watts did not agnfe that it would be
better if the Union waited a year befqre attempting to or-
ganize the employees, and discussed ,he adequacy of sal-
aries is credited. Respondent argues lhat, even assuming,
arguendo, that Thompson made son1e of the comments,
they were merely statements of o~inions about unions
and did not constitute a violation o~ the Act. This argu-
ment is unpersuasive, for no exculpftory reas?ns or c~r­
cumstances were presented; no assu~ances agamst repns-
al were extended by Thompson to lVatts during the dis-
cussion about the employees' protecfed concerted activi-
ty, including a short discourse on thje desideratum of de-
ferring immediate unionization. Thqmpson's remarks are
found to be inquiries and comment~ of such a nature as
to raise fear in the minds of emplo!Yees89 and gave the
impression that he was engaging ih surveillance of an
employee's union activities in violat~on of Section 8(a)(l)
of the Act. :
It is also alleged that, on Aug~st I, Malamut and
McConnell told Watts that she could be discharged for
engaging in solicitation for the Unirln. Malamut's version
of the meeting was similar to Wattsl testimony. As previ-
ously indicated, this threat was an ~nlawful enforcement
of an unlawful no-solicitation rule ip violation of Section
8(a)(l) of the Act. It is further all~ged that the meeting
conveyed the impression of surveill~nce. There is no evi-
dence to support this allegation and! counsel for the Gen-
eral Counsel concurs. Accordingly, it is recommended
that the allegation that the Com.any's representatives
gave the impression of surveillanc~ during the August I
meeting be dismissed. 1
The events that transpired durin& the August 21 coun-
seling session, as described by Watt~, were undisputed by
Dennis, who assertedly attributed! the issuance of the
final warning, with the assurance s~e would be fired for
one more mistake, to her union ac~ivities. As previously
found, the disparate enforcement 4f the unlawful no-so-
licitation rule violates Section 8(4)(1) of the Act, and
Dennis' attribution of unlawful mdtive further substanti-
ates the preceding finding of viola+ons of Section 8(a)(3)
of the Act. :
The complaint avers that, on A~gust 27 during an em-
ployee meeting, Everett stated ithat he "knew who
signed union authorization cards a~d that the signatories
could be discharged for such aptivity," that Everett
placed a general ban on all solicitttion of union authori-
zation cards. Everett's contention'' that he explained the
Company's no-solicitation/no-distribution rule is credited
inasmuch as no other employee teftified that they under-
stood his statement as Gaston reca led and that other em-
ployees would usually recall a t~reat of discharge for
signing an authorization card and, given the confusion
38 See .'Vorrhridge Knilling Mills, Inc., 223 ~LRB 230, 235 (1976); Geor-
gia Rug Mill, 131 NLRB 1304 (1961); and Gj?ld S1andard Enlerprises, Inc.,
234 NLRB 618 (1978). The standards annqunced in these decisions for
crediting testimony are also followed throughout this Decision, and will
not be repeated hereinafter. .I
39 See Regal Shoe Shops #2421 & 2340, 219 NLRB !210 (1980).
I
,,
I
l
exhibited by Everett and other supervisors regarding the
meaning of the rule, it appears most probable that Ever-
ett's comments were misunderstood by Gaston and that
no such threat was actually made or implied. According-
ly, it is recommended that this allegation be dismissed.
The complaint asserts that, on August 29, Thompson
asked Tarantino how many employees attended the
meeting at the Nugget Casino. Thompson's general dis-
claimer of the allegation is not credited based upon Tar-
antino's demonstrated superior ability of recall, inherent
probabilities, demeanor, and for the reasons hereinbefore
mentioned. For the same reasons, Tarantino's version of
the September 10 conversation with Thompson is also
credited. Hence it is found that Thompson inquired why
Tarantino was supporting the Union, and also stated that
such support would result in a loss of pay and other
benefits. This type of questioning "conveys an employ-
er's displeasure with employees' union activity and there-
by discourages such activity in the future . . . even
when addressed to employees who have openly declared
their union adherence."40 Such inquiries are violative of
Section 8(a)(l) of the Act, and such a violation is exacer-
bated by the accompanying threats of loss of pay and the
diminution of other benefits. Such threats are also viola-
tive of Section 8(a)(l) of the Act.
Gaston's previously detailed testimony that on Novem-
ber 19 she was threatened with discipline for soliciting a
petition "against Thrifty for Union activities" is credited.
Thompson had no recollection of the conversation. Ac-
cording to Gaston, there was no reference to when such
activity allegedly occurred. The allegation details behav-
ior which is consistent with activities admitted by Re-
spondent and such consistency of action further cojoined
with the basis established in the above-cited cases re-
quires crediting Gaston's testimony. As previously dis-
cussed, the threat of discipline for engaging in protected
concerted activity, i.e., the alleged solicitation, under the
applicable no-solicitation rule is a violation of Section
8(a)(l) of the Act for it discourages such protected con-
certed activity in the future.
Ill. OBJECTIONS TO THE ELECTION
Finally, Objection 9, which has no counterpart in the
complaint, alleges that on the day before the election
Everett represented that under the Union's constitution a
member's property can be confiscated for nonpayment of
dues. Watts' testimony is credited based on her demon-
strated candor, clarity of recollection, and Everett's ad-
mission that he read portions of the constitution which
refer to the dues being "legal obligations ... enforce-
able in a court of law ... " and that a question was
asked about the clause, specifically inquiring if employ-
ees could lose their homes. Everett recalled announcing
that it was possible that the Union could eventually get a
judgment in a court of law but did not recollect discuss-
ing the enforcement of judgments, and disclaims person-
ally using the word "confiscation." The possibility of the
questioner using the term "confiscation" was not ex-
40 PPG Industries, Inc .. Lexington Plan/. Fiber Glass Division, 251
NLRB 1146 (19SO). Accord: Centre Engineering. Inc., 253 NLRB 419
(1980).
170 J. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plored and is not a matte of evidence. It is unrefuted other similar campaign trickery, which involves a
that Everett, after readin from the union constitution, substantial departure from the truth, at a time which
urged that the entire docJ.lment be read prior to voting prevents the other party or parties from making an
and then informed the employees of the election proce· effective reply, so that the misrepresentation,
dures and situs. He also ~old the employees that their whether deliberate or not,8 may reasonably be ex·
vote was secret and, reg rdless of the outcome, they peeled to have a significent impact on the election.
were the Company's empl yees, that no employee, either However, the mere fact that a message is inartisti·
prounion or antiunion, had to fear any retribution. cally or vaguely worded and subject to different in-
As the Board stated in ollywood Ceramics Company, terpretations will not suffice to establish such mis-
Jnc., 140 NLRB 221, 223-424 (1962): representation as would lead us to set the election
1 aside. 9 Such ambiguities, like extravagant promises,
The rule of that ~· ase is not a fixed one; it is
merely one test used by the Board in determining
whether the integrity of an election has been so im-
paired that it must be set aside. The basic policy un-
derlying this rule, as .well as the other rules in this
election field, is to 4ssure the employees full and
complete freedom ofichoice in selecting a bargain·
ing representative. 3 11ihe Board seeks to maintain, as
closely as possible, Ia oratory conditions for the ex-
ercise of this basic ri ht of the employees. 4 One of
the factors which rna so disturb these conditions as
to interfere with the xpression of this free choice is
gross misrepresentati~n about some material issue in
the election. It is obvlous that where employees cast
their ballots upon th¢ basis of a material misrepre-
sentation, such vote t· annot reflect their uninhibited
desires, and they ha e not exercised the kind of
choice envisaged by the Act. For this reason the
Board has refused to ertify election results where a
party has misreprese~ted some material fact, within
its special knowledgej so shortly before the election
that the other party ~· r parties do not have time to
correct it, and the e ployees are not in a position
to know the truth of he fact asserted.
The Board has lim ted its intervention to cases of
this type because an .election by secret ballot, con-
ducted under Gover~ment auspices, should not be
lightly set aside, and!! because we realize that addi-
tional elections upse~·· the plant routine and prevent
stable labor-manage ent relations. We are also
aware that absolute ecision of statement and com-
plete honesty are no always attainable in an elec-
tion campaign, nor . re they expected by the em-
ployees. 5 Election c~mpaigns are often hotly con-
tested and feelings frequently run high. At such
times a party may, i~· its zeal, overstate its own vir-
tues and the vices o the other without essentially
impairing "laborator conditions."6 Accordingly, in
reaching its decision in cases where objections to
elections have been , filed alleging that one party
misrepresented certai~ facts, the Board must balance
the right of the elbployees to an untrammeled
choice, and the righf' of the parties to wage a free
and vigorous campa' n with all the normal legiti-
mate tools of election ering.
The formula use in striking this balance has
been variously phras d. 7 Accordingly, we deem it
appropriate to restat. the rule for guidance of the
parties. '
We believe that + election should be set aside
o"IY wh<'< th<« h
1
be<" • m;'"P'="totio" 0<
derogatory statements about the other party, and
minor distortions of some facts, frequently occur in
communication between persons. But even where a
misrepresentation is shown to have been substantial,
the Board may still refuse to set aside the election if
it finds upon consideration of all the circumstances
that the statement would not be likely to have had a
real impact on the election. For example, the mis-
representation might have occurred in connection
with an unimportant matter so that it could only
have had a de minimis effect. Or, it could have been
so extreme as to put the employees on notice of its
lack of truth under the particular circumstances so
that they could not reasonably have relied on the
assertion. Or, the Board may find that the employ-
ees possessed independent knowledge with which to
evaluate the statements. 1 o
3 This is contemplated by Section l of the Act. See also Peer-
less Plywood Company, 107 NLRB 427.
4 See General Shoe Corporation, 77 NLRB 124,
• Celanese Corporation of America, 121 NRLB 303, 306.
6 Recognizing this. we have stated that exaggeration, inaccura-
cies, half-truths, and name calling, though not condoned, will not
be grounds for setting aside elections.
' See, for example, Gummed Products Company, supra; Dart-
mouth Finishing Company, 120 NLRB 262, 266; and Celanese Cor-
poration a/ America. supra at 307.
• To the extent that they are incosistent with this decision, we
hereby overrule those cases which suggest that the misrepresenta-
tion must have been deliberate.
9 We are not, of course, considering in this context statements
which may be reasonably construed to contain a threat of reprisal
or force or promise of benefit. If the Board concludes that a state-
ment carries such a threat or promise, it is not a defense that the
message was equivocally phrased, and the election will be set
aside. See Dai-Tex Optical Company. Inc., 137 NLRB 1782.
10 See, for example, Allis-Chalmers Manufacturing Company,
117 NLRB 744, 748; Hook Drugs, Inc., ll9 NLRB 1502, 1505. In
evaluating the probable impact of a party's statement on the elec-
tion, one factor which the Board will consider is whether the party
making the statement possesses intimate knowledge of the subject
matter so that the employees sought to be persuaded may be ex-
pected to attach added significance to its assertion.
See also Modine Manufacturing Company, 203 NLRB 527
(1973}, and General Knit of California, Inc., 239 NLRB
619 (1978).
There is no question that the union constitution refers
to dues as "legal obligations . . . enforceable in a court
of law." There is no showing by the Union that such en-
forcement could or would not possibly result in the re-
duction of such an obligation to a judgment which, in
turn, could subject the debtor's property to levy and at-
tachment. The Union has failed to demonstrate that the
BORUN BROTHERS, INC. 171
I
Company did, in fact, make a misreprbsentation, no less a
material misrepresentation. The emp~oyee who asked a
question on the portion of the constit~tion read by Ever·
ett could have used the terms that }Vatts and no other
witness recalled. The imprecision o( such statements is
clearly recognized as a normal occu[rence in the Holly-
wood Ceramics case, supra. Further, ~he Union has failed
to show that, even assuming arguendli there was a techni-
cal misstatement as to the legal effecl of the quoted con-
stitutional provision, the statement irlvolved a substantial
departure from the truth which reastnably would be ex-
pected to have such a significant im~act upon the voters
as to warrant discarding the secret ~allots of the voters.
Accordingly, it is recommended that Objection 9 be
overruled. i
As to the objections discussed her¢inbefore in conjunc-
tion with the related unfair labor pr~ctices regarding Ob·
jections 16 and 17, the maintenan~e of an invalid no-
solicitation/no-distribution rule dulling the preelection
period had an inhibiting effect on e+ployees in the exer-
cise of their Section 7 rights and therefore constituted a
ground for setting aside the electio~. See Sterling Faucet
Company, Texas Division, a Subsidiazy of Rockwell Manu-
facturing Company, 203 NLRB 1031 K.· 1973). Furthermore,
the findings that the Company unt.Iwfully interrogated
and/ or polled employees, as alleg~d in Objection I, 41
and engaged in surveillance or created the impression of
surveillance as well as threatened oi otherwise unlawful-
ly harassed and intimidated employ~s with discharge for
engaging in concerted protected aftivity, as alleged in
Objections 2, 3, 11, and 24, also require setting aside the
election. See Playskool Manufactl.lring Company, 140
NLRB 1417, 1419 (1963); Dal-Tex ~ptical Company, Inc.,
supra at 1786-87; Struksnes Constru~tion, Inc., 165 NLRB
1062 (1967); and Wall Colmonoy c4rporation, 173 NLRB
40 (1968). .i
Finally, the finding of unlawful fl. iscrimination against
individuals prominent in the organ~ing campaign, as al-
leged in Objections 5 and 6, leads 1o the conclusion that
Respondent has interfered with t~ free choice of em-
ployees in the election and, hence, !he election should be
invalidated. Ponn Distributing, I~c., 203 NLRB 482
(1973), and St. Vincent Hospital, 2t4 NLRB 331 (1979).
Accordingly, I recommend that qbjections 1, 2, 3, 11,
and 24, as limited hereinbefore, be sustained; that the
election of November 2 be set asi~e; that Case 32-RC-
836 be remanded to the Regional,, Director; and that a
new ele~tion. be directed by the Rfgional Director at an
appropnate t1me. ,
CoNCLUSIONs OF LAw
1. Respondent Borun Brothers, ~nc., a wholly owned
subsidiary of Thrifty Corporation!, is an employer en-
gaged in commerce within the m1aning of Section 2(6)
and (7) of the Act. ·'
2. The Union is a labor organiz4tion within the mean-
ing of Section 2(5) of the Act. I
41 As previously indicated, the record is Jevoid of any support for the
allegation, also included in Objection I, that the Employer permilled a
third party to prescreen casuals and applicahts for potential employment
and, therefore, that portion of Objection I s~ould be overruled.
3. Respondent violated Section S(a)(l) of the Act by
maintaining in effect an unlawful no-solicitation/no-dis-
tribution rule and reprimanding and threatening employ·
ees with discharge or other discipline if ·they engaged in
concerted protected activity which was deemed violative
of the no-solicitation/ nodistribution rule.
4. By threatening employees with reduced wages and
benefits and other reprisals in the event they engaged in
protected concerted activity and/or if the Union became
their collective-bargaining representative; interrogating
employees about their union activities, sympathies, and
desires; polling employees about their desire to be repre-
sented by a union; and engaging in surveillance and/or
creating the impression of surveillance of an employee's
union activities, Respondent has violated Section S(a)(l)
of the Act.
5. Respondent has violated Section 8(a)(l) and (3) of
the Act by discriminatorily issuing written warnings to
employee Jeannie Marie Watts in an attempt to enforce
the unlawful no-solicitation/no-distribution rule.
6. Respondent has violated Section 8(a)(l) and (3) of
the Act by discriminatory enforcement of the no-
solicitation/no-distribution rule resulting in the dis-
charges of Robert Gilbert and Steven Tarantino.
7. By refusing to recognize and bargain with the
Union as the collective-bargaining representative of its
production and maintenance employees, Respondent has
violated Section S(a)(S) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
9. Allegations of the complaint that Respondent viola!·
ed the Act in ways not specifically found herein have
not been sustained.
10. By engaging in the aforesaid unfair labor practices,
Respondent has interfered with the representation elec-
tion held on November 2. 1979.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
to remedy the unfair labor practices and to effectuate the
policies of the Act.
It is recommended that Respondent be ordered to re-
scind its no-solicitation/no-distribution rule, expunge all
material relating to violation of its no-solicitation/no-dis-
tribution rule and all written warnings, reports, or other
references to any other alleged violations of its "solicita-
tion and distribution" rules, and if, after examination, it is
determined that the settlement proposed by Respondent
to Gilbert and Tarantino, and accepted by these employ·
ees in part, is not adequate to make the employees whole
for any losses of earnings suffered by reason of their un-
lawful terminations not untimely received pursuant to
the aforesaid settlement offer, make them whole as set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest to be paid on any amount owing to be com-
puted in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). See, generally, Isis Plumbing
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
& Heating Co., 138 N RB 716 (1962), enforcement
denied on different groun s 322 F.2d 913 (9th Cir. 1963).
Upon the basis of the regoing findings of fact, con-
clusions of law, and the ntire record in this proceeding
and pursuant to Section 1 c) of the National Labor Re-
lations Act, as amended,1 I hereby issue the following
recommended:
01DER42
The Respondent, Bor~n Brothers, Inc., a wholly
owned subsidiary of thrifty Corporation, Sparks,
Nevada, its officers, agentis, successors, and assigns, shall:
1. Cease and desist fro :
(a) Threatening emplo ees with reduced wages and
benefits and other reprisa s in the event they engaged in
certain concerted protect d activities or if the Union be-
comes their collective-bar aining representative.
(b) Interrogating and/o polling employees about their
union activities, sympathi s, and desires.
(c) Engaging in surveil nee or creating the impression
of surveillance of employ es' union activities.
(d) Discriminatorily pr mulgating and enforcing a no-
solicitation/no-distributio rule.
(e) In any other mannet interfering with or attempting
to restrain or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following II action necessary to effectuate
the purposes of the Act: i
(a) Rescind its no-solicitation/no-distribution rule.
(b) Cease reprimandin or disciplining employees for
violations of its no-solici ation/no-distribution rule, and
discriminatorily enforcing the rule so as to unlawfully in-
terfere in any way with i s employees rights to solicit on
behalf of a labor organiza ion.
•• In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of t e National Labor Relations Board, the
findings, conclusions, and reco ended Order herein shall, as provided
m Sec. 102.48 of the Rules and gulations, be adopted by the Board and
become its findings, conclusion and Order, and all objections thereto
shall be deemed waived for all p rposes.
(c) Expunge from its records all material relating to
violations of its no-solicitation/no-distribution rule and
all written warnings.
(d) If necessary reimburse Robert Gilbert and Stephen
Tarantino for any wages not yet reimbursed as a result
of their discriminatory discharges in the manner detailed
in the section above entitled "The Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(f) Post at its facility in Sparks, Nevada, copies of the
attached notice marked "Appendix."43 Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(g) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges Respondent violated the Act
in ways not specifically found herein.
Further, based upon objections sustained hereinabove,
it is recommended that the election held on November 2,
1979, be set aside and a second election by secret ballot
be conducted at such time and in such manner as the Re-
gional Director deems appropriate.
43 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu·
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."