Kinney Drugs

National Labor Relations Board - Board Decisions

Jul 12, 1994

314 N.L.R.B. 296 (N.L.R.B. 1994)

296
314 NLRB No. 56
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On June 18, 1993, Administrative Law Judge Joel A. Harmatz
issued the attached decision. The Respondent and the General Coun-
sel filed exceptions and supporting briefs.
2 The Respondent asserts that the judge’s resolution of credibility,
findings of fact, and conclusions of law are the results of bias. After
a careful examination of the entire record we are satisfied that this
allegation is without merit. There is no basis for finding that bias
and partiality existed merely because the administrative law judge
resolved important factual conflicts in favor of the General Coun-
sel’s witnesses. As the Supreme Court stated in NLRB v. Pittsburgh
Steamship Co., 337 U.S. 656, 659 (1949), ‘‘[T]otal rejection of an
opposed view cannot of itself impugn the integrity or competence of
a trier of fact.’’ Furthermore, it is the Board’s established policy not
to overrule an administrative law judge’s credibility resolutions un-
less the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
3 We agree with the judge that the Respondent’s elimination of the
use of a loud buzzer to signal the beginning of shifts and the end
of breaks was an unlawful grant of benefit regardless of whether em-
ployees requested this change.
Inasmuch as we agree with the judge’s conclusions that the Re-
spondent violated Sec. 8(a)(1) of the Act by coercively interrogating
other employees concerning their union sentiments, we find it unnec-
essary to pass on whether David McClure, the Respondent’s ware-
house supervisor, violated Sec. 8(a)(1) of the Act by interrogating
employee Timothy Alguire about the Union on November 8, 1991.
Any finding of a violation would be cumulative.
4 The judge erroneously included James McCrea’s name twice and
failed to include the names of Carol Ormasen and Shelia Wollman
among the list of voters casting ballots subject to challenges which
are to be overruled. We note that if a revised tally of ballots shows
that a majority of voters cast ballots for the Union, the Regional Di-
rector shall issue a certification of representative in addition to the
remedial bargaining order. 1 The Petitioner’s Objection 1 had been withdrawn previously.
Kinney Drugs, Inc. and Teamsters Local 687, Inter-
national Brotherhood of Teamsters, AFL–CIO.
Cases 3–CA–16740 and 3–RC–9808
July 12, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
The issues presented for the National Labor Rela-
tions Board’s review in this case are whether the judge
correctly found that: (1) the Respondent committed
violations of Section 8(a)(1) of the Act; (2) this unlaw-
ful conduct interfered with employee choice in a Board
representation election; (3) the challenges to ballots
cast by certain employees in that election should be
overruled; and (4) a bargaining order is appropriate to
remedy the Respondent’s unfair labor practices.1
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Kinney Drugs, Inc.,
Gouverneur, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that Case 3–RC–9808 is
severed from Case 3–CA–16740 and that it is re-
manded to the Regional Director for Region 3 for ac-
tion consistent with this decision.
Thomas J. Sheridan and Robert A. Ellison, Esqs., for the
General Counsel.
Thomas J. Grooms, Esq. (Bond, Schoeneck & King), of Syra-
cuse, New York, for the Respondent.
Christy Concannon, Esq. (Baptiste & Wilder), of Wash-
ington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This con-
solidated proceeding originated with the filing of an election
petition in Case 3–RC–9808 on October 3, 1991. Pursuant to
a Stipulated Election Agreement, an election by secret ballot
was conducted on November 22, 1991, with the tally show-
ing that of approximately 41 eligible voters, 17 cast ballots
for, and 17 against, representation, with 7 determinative chal-
lenged ballots. Thereafter, the petitioning Union and the Em-
ployer filed timely objections to conduct affecting the elec-
tion results.
On November 29, 1991, the initial unfair labor practice
charge was filed in this proceeding, and on January 27, 1992,
the Regional Director for Region 3 issued a complaint, alleg-
ing that the Respondent independently violated Section
8(a)(1) of the Act by various acts of coercion, including in-
terrogation, creating the impression of surveillance, declaring
the futility of collective bargaining, granting and promising
benefits, and threatening discharge, closure, as well as a loss
of benefits and jobs. In light of these alleged illegalities, the
complaint further alleged that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to recognize and
bargain with the Charging Party-Petitioner as the majority
representative of employees in the appropriate unit, an alle-
gation invoking the remedial authority approved in NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969). In its duly filed
answer, the Respondent denied that any unfair labor practices
were committed.
Subsequently, on February 4, 1992, the Regional Director
for Region 3 issued his ‘‘Report on Challenges and Objec-
tions and Order Directing Hearing, Order Consolidating
Cases and Notice of Hearing,’’ concluding that the peti-
tioning Union’s remaining Objections 2 through 13,1 the Em-
ployer’s remaining Objection 1, and the determinative chal-
lenges raise material issues of fact best resolved by a formal
hearing, and, accordingly, because of the commonality with
certain allegations in the pending complaint, ordered that
Case 3–RC–9808 be consolidated with Case 3–CA–16740
297KINNEY DRUGS
2 Portions of the official transcript of proceeding are garbled al-
most beyond recognition. With the aid of motions to correct tran-
script filed on behalf of the Respondent and the General Counsel,
respectively, and on the basis of my own notes and recollection,
many of the errors are corrected in the attached ‘‘Appendix B.’’
[Omitted from publication.]
3 It is my understanding that following the events in issue, an addi-
tional store has been added. Moreover, at the time of the campaign,
warehousing operations were carried on at two sites. Thus, a small
pharmaceutical warehouse was maintained in the original Kinney
store in downtown Gouverneur. That operation was manned by only
four or five employees. By the time of the hearing, the pharma-
ceutical warehouse had been consolidated into the main warehouse
located at 520 East Main Street, also in Gouverneur.
4 Unless otherwise indicated all dates refer to 1991.
5 Koerick testified that they each received three sets of organiza-
tional materials that day, but the next evening Matthews delivered
about 20 more to his home.
for the purpose of hearing, ruling, and decision by an admin-
istrative law judge. There were no exceptions.
Pursuant thereto, on June 9 through 12, and July 21, 1992,
I conducted a hearing in Gouverneur, New York. Following
close of the hearing briefs were filed on behalf of the Gen-
eral Counsel, the Respondent, and the Charging Party.
On the entire record,2 including my opportunity directly to
observe the witnesses while testifying, and their demeanor,
and after considering the posthearing briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York corporation, at times mate-
rial, has been engaged in the operation of an interstate chain
of retail drug stores, including warehouse facilities in
Gouverneur, New York, the sole facilities involved in this
proceeding. In the course of the operation, during the 12-
month period preceding issuance of the complaint, the Re-
spondent purchased and received at the facilities, goods and
materials valued in excess of $50,000 directly from points
outside the State of New York.
The complaint alleges, the answer admits, and I find that
the Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Teamsters Local 687, International Brotherhood of Team-
sters, AFL–CIO (the Union, the Charging Party, and the Peti-
tioner) is a labor organization within the meaning of Section
2(5) of the Act.
III. CONCLUDING FINDINGS
A. Preliminary Statement
The Respondent’s chain of 35 retail drugstores is serviced
by a central warehouse or distribution center located in
Gouverneur, New York.3 There is no history of collective-
bargaining for employees involved in that operation.
This case emerges from a third effort by the Union to or-
ganize the Respondent’s warehouse employees. Unsuccessful
campaigns were conducted in 1973 and 1977. The 19914
campaign was not inspired by a disenchantment with wages,
but because certain employees sensed that their grievances
were being ignored, while their jobs and benefits slowly
were being eroded. It opened when employee Drew Koerick
in September contacted the Union by telephone. In con-
sequence, he and a coworker, Les McClure, on September
10, met with a union representative, Michael Matthews, at
Koerick’s home. Both signed authorization cards at that time.
A second meeting was held at the same location on Sep-
tember 7; it was attended by Koerick, McClure, and a third
employee, Danny Richards. In addition to Matthews, the
Union was represented by its president, Fred Carter, as well
as a business agent, Dennis Robinson. Organizational lit-
erature incorporating blank authorization cards was distrib-
uted.5 Richards signed an authorization card at this time.
On September 25, Matthews wrote Richard A. Cognetti,
the Respondent’s president. On behalf of the Union, Mat-
thews claimed majority representation, and hence requested
recognition and a immediate negotiations, while offering to
prove its status through a third-party card check. (G.C. Exh.
6.) On inquiry by Cognetti, the Union, by letter of September
26, clarified the identity of the employees sought. (G.C. Exh.
7.) The Union filed an election petition in Case 3–RC–9808
on October 3, 1991.
The Respondent replied with an antiunion campaign in
which it attempted to deliver its message through literature
mailed and distributed to employees, speeches to the assem-
bled warehouse employees, and separate meetings with small
groups attended by two to four employees.
An election was held on November 22, but the results
were inconclusive, since contingent upon resolution of deter-
minative challenges and objections by both parties, all of
which are subject to litigation herein.
While it is entirely possible that that the election could
survive the Employer’s objections, and that there could be
sufficient affirmative votes among any overruled challenges
to furnish the Union a majority, the complaint hedges against
this possibility. Under it, the issue of primary concern is re-
medial, raising the question of whether, irrespective of the
final election results, the Employer engaged in unlawful con-
duct sufficiently serious to warrant imposition of a bar-
gaining order.
In this respect, the General Counsel contends that the
Union obtained valid, signed authorization cards from a ma-
jority of unit employees, yet, thereafter, during the interim
between the filing of the representation petition and the elec-
tion, the Employer embarked upon a campaign of intimida-
tion and coercion that not only eroded union support, but
precluded the holding of a fair rerun election in the future.
The complaint, however, is devoid of alleged discrimina-
tion. Hence, any remedial bargaining order turns entirely
upon independent 8(a)(1) allegations. The individual charged
with the most serious misconduct is Richard Cognetti. The
latter has been employed by the Respondent since 1969. In
May 1991, he was promoted from senior vice president of
operations to president and CEO. In addition to Cognetti, the
highest ranking corporate functionary, several allegations at-
tribute 8(a)(1) statements to David McClure, the warehouse
supervisor and highest ranking management official with im-
mediate day-to-day responsibility in the warehouse.
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The date is in dispute, but Cognetti insists that the meeting in
question was held on October 9, after the Union filed the election
petition on October 3. Because several of the General Counsel’s wit-
nesses, particularly drew Koerick and Les McClure, testified that
Cognetti described a document he received as being the ‘‘petition,’’
the Respondent is entitled to benefit of any doubt on this question.
However, the discrepancy is inconsequential, for Cognetti was fully
aware of the incident to which the allegation pertains, there was no
indication of confusion or surprise, and the matter was fully liti-
gated.
7 This obviously was in reference to NLRA restrictions. Employee
Dan Richards acknowledged that Cognetti stated that his hands were
tied because under the law he could make no changes. On cross-ex-
amination, Koerick confirmed that Cognetti added that ‘‘there was
nothing he could change even if he wanted to, and he could make
no threats or promises.’’
8 The Respondent makes much of the breakdowns in development
of this project, and resulting consternation within the work force.
Obviously, the contractor’s failure to deliver as promised, and the at-
tendant problems that ensued would provide no excuse for a failure
to adhere strictly to the requirements of the Act.
9 House understood this to be a reference to Union President Fred
Carter.
10 [No text for footnote.]
11 Like House and Koerick, Richards testified that shortly after this
meeting the coffee privileges were restored.
The Respondent opposes a bargaining order as unwar-
ranted, and seemingly argues that the complaint is built upon
a mountain of straw, going on to state in its posthearing
brief:
It is the Company’s position that the allegations are ei-
ther outright fabrications or gross distortions of the
words and conduct of the Company in the pre-election
period. The General Counsel has not alleged that any
material aspects of Kinney’s formal pre-election cam-
paign violated the Act, and the overwhelming evidence
in this case shows that Kinney did not commit the vio-
lations with which it is charged. Indeed, if any party
has engaged in reprehensible conduct, it is the Union,
not the Company.
For the most part, the issues turn on credibility, in the
main, pitting incumbent employees, who lack any apparent
pecuniary interest in the outcome, against personnel serving
at the highest level of corporate management, each of whom,
through their denials, attempt to substantiate that not a single
unfair labor practice was committed and in each and every
instance the General Counsel’s witnesses had conspired to
falsely accuse their superiors.
B. Interference, Restraint, and Coercion
1. Solicitation of grievances; the October 9 meeting
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act on September 27 when Cognetti solicited
employee grievances with implicit or explicit promises to
rectify them. The allegation actually relates to a meeting that
took place on October 9.6
That afternoon, during their shift, the employees were
summoned to a meeting with Cognetti. About 30 attended.
The General Counsel presented a number of witnesses, all
currently employed, to attest to Cognetti’s actions on that oc-
casion. Koerick was the first. He related that Cognetti opened
by remarking that he had seen the Union’s ‘‘petition,’’ and
it made him ‘‘kind of sick.’’ He indicated that it was upset-
ting that just one or two would make the decision for the en-
tire warehouse. He went on to state that nothing could be
done at the time, as his hands were tied.7 Yet, Cognetti then
inquired as to employee complaints about the warehouse.
Employees voiced concerns about the I.B.M. system8 that
was being installed to automate manual procedures and ref-
erence to the fact that manpower levels were high enough to
service 50 stores, let alone the 34 that were serviced by the
warehouse; about a ban that had been placed upon both ac-
cess to, and drinking coffee at work stations during working
time; the failure to follow seniority; and strict enforcement
of the 10-minute break period. According to Koerick,
Cognetti responded that his hands were tied, and that he
would like to see the union thing ended now, adding that the
only way it could end ‘‘was if thirty of us would go to the
union’s doorstep and protest against it and say we didn’t
want it.’’
Les McClure testified that this was the meeting marked the
first time since the prior organization campaign that the Re-
spondent had expressed an interest in employee concerns.
More particularly he describes Cognetti’s opening remarks as
including an admission that he lacked familiarity with condi-
tions in the warehouse and that he just had been learned of
the situation. McClure agreed with Koerick that Cognetti
asked the employees what the problems were. A litany of
problems were addressed. When an employee complained
about management’s resistance to employee complaints, ac-
cording to McClure, Cognetti responded that he would do his
best ‘‘to change things around’’ and that if it was manage-
ment that needed to be changed, he would do so. Cognetti
went on to state that he wanted to hear all the employee
complaints and if they had anything else to say, he would
listen and start immediately to rectify the problems.
Randy House, another incumbent employee, testified that
in this meeting, Cognetti told the employees not to listen to
the ‘‘fat guy from Ogdensburg.’’9 House confessed to a lim-
ited recollection of what was said, but recalled Cognetti re-
marking that his hands were tied and he could not make any
threats or promises, but he would listen to complaints. Sev-
eral issues were raised, including the denial of coffee privi-
leges during working time. Cognetti allegedly sympathized
on that issue, stating that he takes coffee to his office, and
if he, as an employee can do it, everybody could.10
Another employee, Danny Richards, testified that Cognetti
opened by stating that he received a letter indicating that the
Union was claiming representation, but his hands were tied
and their really was not much he could do. He indicated that
he did not realize that their were problems in the warehouse
and invited employees to state their concerns. The latter re-
sponded with grievances, including the termination of
worktime access to coffee. Like House, he testified that
Cognetti commented he takes coffee to his desk any time he
wishes.11 At the close of the meeting, according to Richards,
Cognetti revealed a suspicion that the appearance of the
Union was attributable to one or two people who had a ven-
detta against Kinney Drugs, but stated that, having heard the
problems, he viewed the issue as much larger.
According to Cognetti, he showed the petition at the be-
ginning of the meeting, while observing that certain restric-
299KINNEY DRUGS
12 Cognetti testified that he did not believe that the coffee issue
was raised. I credit the testimony of Koerick, House, and Richards
that it was. The Respondent did not call a single employee to sup-
port Cognetti’s concern as to whether that issue was addressed at
that time.
13 There is neither allegation or claim that this assertion violated
the Act. See, e.g., American Medical Waste Systems, 311 NLRB 77
(1993). At the same time it is relevant to assessment of what tran-
spired on October 9. In this respect, Cognetti, who was the source
of some fascinating euphemisms, assigned an unbelievable
explantion for this part of the November 19 missive. In this instance
he states that he was addressing an issue unmentioned by the docu-
ment itself. He claims that, by the above statement, he simply meant
to reply to employees who opined that the Teamsters would lose in-
terest after three unsuccessful campaigns and hence that this was the
last chance to organize. To alter the clear import of his words,
Cognetti claimed that he made this statement to show that there
would be another chance. Surely, Cognetti was a aware that any
such fear on the part of employees was not a matter within his con-
trol, and obviously would not be allayed by his remarks. In any
event, if this truly was the argument he sought to answer, it would
have been addressed in direct terms. The message conveyed was that
Cognetti wanted more time in which to prove himself, an oppor-
tunity that would prove effective only if management capitalized,
after the Union’s demise, by making changes calculated to eliminate
the causes of unionization. The plea for additional time was nothing
more than an implied promise that management, now awakened, if
given a chance, would take steps eliminating the need for a union.
14 The fact that Cognetti was new to the operation and had no op-
portunity to head off disenchantment did not excuse his conduct in
this regard. See Great Plains Coca-Cola Bottling Co., 311 NLRB
509 (1993). Contrary to the Respondent, Clark Equipment Co., 278
NLRB 498, 501 (1986), does not, on any broadbrushed basis, permit
employers to solict grievances while making ‘‘general statements
that conditions will improve.’’ Such remarks were approved only
where the remark was made in the context of ‘‘ongoing improve-
ments instituted . . . prior to the union campaign.’’ Nothing of this
nature was underway prior to the advent of the Union in this case,
and Clark Equipment is of no comfort to the Respondent.
tions had been placed upon him because of that document.
He stated that he could not promise to rectify any problems
but ‘‘would be willing to listen to anything that [the employ-
ees] wanted to discuss at that time, but again . . . would not
be able to make any promises to . . . rectify anything.
Cognetti relates that this lead to a flood of ‘‘comments and
remarks,’’ with the basic complaints relating to absence of
attention to the warehouse, poor communications in the
workplace, unresponsive supervision, and obstacles to the
performance of their jobs.12
Cognetti’s denied making any promises, and asserts that
when pushed for a response, he raised the petition, reminding
the employees that he could not respond. He claims that the
only issues raised by employees pertained to a ‘‘lack of com-
munication’’ with management. The testimony on both sides,
to the extent uncontradicted reflects that Cognetti, perhaps,
innocently had not previously demonstrated an interest in the
concerns of warehouse employees. There can be little ques-
tion in this light, that the threat of unionization had caught
his attention and he seized upon this occasion to urge em-
ployees to come forth with their problems, while in unambig-
uous terms inviting them to repudiate the Union. While the
record is devoid of any specific, concrete promise, there re-
mained a clear implication that he would attempt to change
things around. Despite Cognetti’s disavowals, in context, the
employees were not likely to assume that they had been
called away from their work because Cognetti was in need
of a earful of criticism. They would have been aware acutely
that this was neither a sterile exercise, nor one designed to
provide a forum in which employee discontent could be aired
in an atmosphere of solidarity that would only play into the
Union’s hands. Workers are sufficiently sophisticated to real-
ize that when management, as part of an antiunion campaign,
suddenly evokes an interest in negative shop talk, it is done
with implicit understanding that, once the Union is rejected,
their concerns will be addressed in positive fashion. In some
ways, it is a device that holds open a broader promise of
change than could be expected through specific promises.
Beyond the foregoing, the impact of this meeting upon
Section 7 rights is subject to assessment in the context of all
circumstances in the case. If there was any question in the
mind of employees that management would consider, and act
favorably on their newly unveiled problems, it would have
been clarified by Cognetti’s implicit appeal in a campaign
letter distributed to employees on November 19, 1992,
wherein it was stated:
[A]fter a period of time, September 30th [1992] . . . if
the employees felt the Union was needed that . . . we
would allow a simple card check and . . . we would
accept the word of an impartial clergyman as to the
outcome.13
Cognetti’s assertions that his hands were then tied did not
denude implication that, having ferreted out the grievances,
some, most or all would be remedied when his hands were
untied. See Electric Hose & Rubber Co., 267 NLRB 488,
490 (1983). As the campaign unfolded, the Respondent
would endeavor to apprise employees that the Union was un-
necessary, and that once rejected, management would react
favorably to the underlying problems that gave impetus to
the organization drive. In this context, the conduct of
Cognetti at the October 9 meeting, entailed the solicitation
of employee complaints under conditions implying that they
would be remedied.14 On the total record, it is concluded that
the Respondent thereby violated Section 8(a)(1) of the Act.
Astro Printing Services, 300 NLRB 1028, 1034 (1990).
2. The group meetings
According to the proponents of the complaint, Cognetti’s
direct involvement in illegal antiunion campaigning re-
appeared during the second week of November. At that time,
the Respondent’s strategy of rooting out the causes of em-
ployee unrest adopted a new medium. Thus, between No-
vember 11 and 14, Cognetti held meetings with small groups
of employees. He did not attend these sessions alone, but
was accompanied in most instances by a high ranking cor-
porate official, such as Ron Field, the director of human re-
sources, or Wayne Frenyea, the vice president of finance.
The meetings were privately held, involving two to four
employees. Management determined who would attend each
session. Participation was mandatory and all meetings were
held on working time. They were scheduled a week in ad-
vance on assumption that they could be held at 20-minute in-
tervals so that all employees could be accommodated in 2
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 R. Exh. 5 is a an attempt at accounting for particular times and
dates of meetings with particular individuals. However, it was pre-
pared solely for purposes of this proceeding, and from recollection
and from unspecified partial notes. Accordingly, the document has
no special reliability, and were it necessary to determine the precise
timing of the meetings, it would be given less weight than sworn
testimony offered in that regard.
16 The goal behind this endeavor was articulated by Wayne
Frenyea when he described an issue raised by an employee at one
such session as ‘‘very, very important to us in trying to find out
what the problems were in operating the warehouse.’’
17 It was probably more than just coincidence that this grouping
assembled the three employees that Cognetti believed to be the key
employee organizers.
18 McClure must have been in error in this respect, for, as pre-
viously indicated, coworkers testified that the coffee drinking privi-
leges had been restored shortly after the October 9 meeting.
19 McClure was again mistaken here, for it was Cognetti that
voiced this objection, rather than an employee. However, I have
heretofore concluded that the Respondent violated Sec. 8(a)(1) by
shutting off this device of pollution that had been tolerated for a pe-
riod of 10 years prior to advent of the Union.
20 Cognetti denied that any card check offer was made during the
group meetings.
21 McClure was not certain, but testified to his belief that the
feared that full-time employees would be replaced by part-timers
might have been discussed as well, and that Cognetti professed to
be unaware of the situation.
22 Field testified that whenever the lockout issue was raised, the
employees were told, ‘‘We’re not going to lock anybody out.’’ He
avers that he never sat in on a meeting where employees were told
they would be locked out. There was no qualification. I do believe,
however, that Cognetti mentioned the possibility in light of what had
occurred at St. Joe Mineral, pointing out that Kinney would do the
same thing in the event of violence to protect its assets.
days. However, the schedule could not be maintained, for the
meetings ran from 45 minutes to several hours.15
Apart from the opportunity to deliver antiunion propa-
ganda, these meetings were integrated into the Respondent’s
ongoing effort to identify the grievances that had led to
union activity. Ron Field testified that Cognetti would open
with an explanation of the reason for the meeting and then
would state that ‘‘if any of them had any concerns or ques-
tions’’ that, subject to legal constraints,16 they would attempt
to do so.
Cognetti admittedly believed that the Union emerged be-
cause of a lack of communication between management and
the warehouse employees. He conceded, albeit obliquely, that
the group meetings were calculated to overcome this over-
sight, and, thus, to neutralize this issue. In this regard, he tes-
tified:
Based on how well I was treated by these people and
how well every single meeting with every single em-
ployees went I was thrilled[.] I said my gosh simply by
listening to these people, giving them a little bit of at-
tention we’re going to win.
The testimony offered by the General Counsel in this case
emerges from participants in four of the groups. As the testi-
mony goes, in the course of these sessions, Cognetti pre-
sented a variety of arguments against union representation.
Beyond that, the General Counsel and the Charging Party
contend that his stated positions were often interspersed with
unlawful comment. Thus, the complaint alleges that the Re-
spondent violated Section 8(a)(1) based upon Cognetti’s al-
leged remarks that if the Union were designated, employees
stood to lose benefits; he would not bargain; and that he
would bargain in bad faith and lock out the employees, and,
further, that he created the impression that union activity was
subject to surveillance.
Koerick, Woods, and McClure. Ron Fields and Cognetti
met with this group.17 During the meeting, arguments were
made against unionization, including publication of the sala-
ries earned by union officials and a comparison of Kinney
benefits with that of union labor.
McClure and Koerick attest that Cognetti went further. Ac-
cording to McClure, at the outset, Cognetti stated that he was
not allowed to make changes or promises. He, nevertheless,
observed that he was new and did not realize what was going
on in the warehouse. He therefore inquired as to their prob-
lems. The employees responded, noting a loss of sick time
and coffee drinking privileges18 and the annoying buzzer,
which during this very session had gone off three times, dis-
rupting Cognetti. Cognetti allegedly agreed on the buzzer
issue,19 but went on broadly to appeal that employees ‘‘just
give him a year . . . [and they] . . . would notice a lot of
changes . . . and just basically . . . how things were going
to get a lot better if . . . we just give him a chance.’’ An
appeal was made that if the employees were not satisfied
after a year that the Union would be recognized on the basis
of a card check.20 It was stated that the doors were open and
that the employees should feel free to bring their problems
to the attention of management.21 Concerning negotiations,
McClure testified that Cognetti stated that they would go to
the bargaining table, but ‘‘would never reach an agreement
with the Teamsters Union.’’
Koerick’s testimony on this latter issue was more com-
plete. He agreed with McClure that Cognetti said that he
would go to negotiations, ‘‘but he wouldn’t bargain.’’ On
cross-examination, Koerick admitted that Cognetti discussed
the mechanics of collective bargaining including the fact that
neither party is required to accept the others proposals and
that the Union could trade off existing benefits, creating the
possibility that employees would not end up ‘‘where they
started.’’ Cognetti added that negotiations sometimes lead to
strikes, noting that a strike at a local zinc mine was long and
bitter, costing most of the strikers their jobs through perma-
nent replacement. Koerick then testified that Cognetti alleg-
edly stated that he would produce a stalemate, and use his
power to cause a lockout which he could do legally. When
Koerick advised that he was against a strike, and he would
not vote to strike, Cognetti said that he would still lock them
out, and could ‘‘just shut the doors.’’22 Cognetti also alleg-
edly told Woods and McClure that they and their families
had more to lose in the event of a lockout than Koerick, who
unlike them, had not been fully vested in the retirement pro-
gram. During the meeting, according to Koerick, Field asked
why Koerick wanted a union. When Koerick asked what
made Field think that he wanted a union, Field rephrased,
asking what Koerick thought a union would do for him.
Koerick replied that he felt the union could negotiate their
301KINNEY DRUGS
23 The complaint does not allege that the Respondent violated Sec.
8(a)(1) by any interrogation on the part of Field, and it is assumed
that those who drafted the complaint had reason to believe that it
was concoercive.
24 This comment by Cognetti failed to substantiate that the Re-
spondent violated Sec. 8(a)(1) by creating an impression of surveil-
lance. The union meeting in question was open and one which pre-
sumably was widely publicized within the voting group. It would be
unreasonable to deduce that Cognetti learned of it through other than
legitimate means, and employees would have no realistic basis for
assuming surveillance was involved. The allegation to that effect is
dismissed. Weather Shield of Connecticut., 300 NLRB 93 (1990).
25 In his prehearing affidavit, submitted to the General Counsel,
Cognetti swore that ‘‘The subject of bargaining negotiations did not
come up in the small group meetings.’’
26 This subject was mentioned in a speech delivered by Cognetti
on October 25. ALJ Exh. 1(b). It was expanded upon in a letter to
employees dated November 5. ALJ Exh. 1(a). It is not inconceivable
that Les McClure and Koerick, once made privy to this complicated
discussion of collective bargaining would draw the same conclusions
from this entirely legitimate dialogue and describe it as making they
same points they attribute to Cognetti at their group meeting.
27 The General Counsel would excuse the weakness in his case on
the basis by quoting NLRB v. Rollins Telecasting, 494 F.2d 80, 82
(2d Cir. 1974), in which the court stated, ‘‘An employer who goes
close to the brink takes the risk that employees may honestly mis-
understand him.’’ This liberal tandard does not absolve the General
Counsel from presenting credible proof that an employer had gone
sufficiently close to the brink. This has not been done here.
28 Field testified that several employees expressed concern during
the sessions that if the Union were designated they would lose their
pensions. He testified that he heard nothing from company represent-
atives that would have contributed to this concern. The only ref-
erence to benefits that Field could recall was a comment on his part
that the Teamsters pension plan was underfunded while that of
Kinney was overfunded. Field also testified that when employees
would ‘‘raise’’ questions concerning the nature of collective bar-
gaining, management would point out that they would start from a
clean slate and nothing was given, but had to be negotiated. Field
like other representatives of management was not a trustworthy wit-
ness. Although my doubt as to his credulity is hosted by a number
of factors, I was suspicious of his proclivity, like that of Warehouse
Supervisor Dave McClure, to pass off subject matter set forth in the
complaint as always being raised by employees. Not a single em-
ployee was called to substantiate that this, even once, was the case.
29 Cognetti testified that the subject of a lockout was raised during
most meetings, but, as far as he could recall, always by the employ-
ees. However, in his prehearing affidavit submitted to the General
Counsel, Cognetti swore that ‘‘the issue of a strike or lockout was
not brought up [in the group meetings] by myself, Field, or any
other employees.’’ Cognetti for this and more important reasons to
be considered, infra, was a most unreliable witness. However, my
Continued
wants and needs and establish seniority rights.23 Finally,
Koerick testified that Cognetti stated that he was aware of
the union meeting scheduled for Thursday night and would
appreciate it if the men went to a movie, hunting, or fishing,
rather than attend.24
Cognetti denied stating at any of the group meetings that
the Company would refuse to bargain with the Union, or that
he would refuse to agree to demands or refuse to negotiate.
He admits that the mechanics were discussed in the sense of
trade offs, but denies that employees were told that benefits
would be lost outside that process.25
Like Cognetti, Field denied that, Cognetti asked for time
to prove the Union was unnecessary. According to Field, the
only mention of time related to an ongoing appeal for pa-
tience until ‘‘quirks’’ attributable to the IBM project were
worked out. He denied any statement that, if the Union got
in, Cognetti would not negotiate, or that they would nego-
tiate to impasse and then lock out the employees.
The complaint alleges that during this meeting, the Re-
spondent violated Section 8(a)(1) of the Act by declarations
on the part of Cognetti that he would not bargain with the
Union and that if the Union were designated, he would force
a lockout. However, employers are free to explain the negoti-
ating process to employees, and to go so far as to state that
employees are not guaranteed that they will gain through col-
lective bargaining. See, e.g., Baton Rouge Hospital, 283
NLRB 192 (1987); Telex Communications, 294 NLRB 1136,
1140 (1989). In addition, employers are free to educate as to
the circumstances in which employees are subject to legiti-
mate lockout. Santa Rosa Blueprint Service, 288 NLRB 762,
763 (1988). Campaign material in this area often is drafted
by or otherwise originates with professionals.26 More often
than not the argumentation is carefully conceived and no less
intricate than the negotiating process itself. Rare is the case
where the exact terms are ingested objectively by employees,
who are capable of relaying the completities months later
under oath with precision. Nevertheless, where it is alleged
that an employer has exceeded Section 8(c) of the Act by
such commentary, there must be credible evidence as to the
words and context actually used. Here, however, the wit-
nesses that testified on behalf of these allegations provided
versions of what was said that were inconsistent and appar-
ently incomplete. Their testimony furnishes no reliable basis
for analysis of whether the Respondent exceeded privileged
argumentation. The General Counsel’s case is not supported
by persuasive evidence in this respect and shall be dis-
missed.27
Finally, the complaint alleges that during this meeting, the
Respondent violated Section 8(a)(1) of the Act through
Cognetti’s threat that employees would lose benefits in con-
sequence of unionization.28 His statement that Woods and
Les McClure had a lot to lose because their pensions had
vested falls into this category. Having been made by a high
level official, with obvious authority to enhance the risk, the
remark is not to be lightly dismissed as ‘‘a pure statement
of fact.’’ In this respect, I credit Koerick over Cognetti and
Field, neither of whom were reliable witnesses. Based upon
the credited testimony of Koerick, which corresponds to a re-
mark attributed to Cognetti at their group meeting by incum-
bent employees Randy Sibley, Randy House, and Danny
Richards, I find that this allegation has been substantiated to
this extent.
Mae Cryderman, Rita Smith, and Nancy Turnball. Cognetti
and Wayne Frenyea met with this group on November 12.
Cryderman testified that Cognetti said that if the Union were
designated, they would have to close the doors and lock out
the employees in the event of violence to protect the truckers
and the building. As I understand Cryderman’s testimony,
this statement was made in conjunction with Cognetti’s ref-
erence to the local zinc mine strike at St. Joe Mineral, and
the violence associated with it. Cryderman was
uncorroborated, and I was not convinced that she had a grasp
for recall sufficient to present a reasonable accurate, detailed
account of the words used by Cognetti.29 As indicated, deter-
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
view of the immediate issue does not turn upon his credibility, but,
rather, upon a proof failure on the part of the General Counsel. I
would note, however, that the General Counsel’s own witnesses to
an extent confirm that Cognetti adverted to a lockout in context of
the St. Joe Mineral situation, where after several violent incidents,
St Joe had to lock its doors to protect its property. In this respect,
Cognetti testified that when the employees persisted in inquiries
about a lockout, management replied that ‘‘only if there was a situa-
tion where our property was threatened due to violence would we
lock the doors on our warehouse.’’
30 Richards had no recollection of whether Cognetti linked the
lapse of ‘‘a certain number of days’’ to unsuccessful negotiations.
Cognetti could not recall ever mentioning the duration of a lockout,
and he specifically denied stating that the employees would be
locked out in connection with collective bargaining.
31 In addition to his discharge, an arrest warrant was subsequently
issued against McFerran based upon an alleged bomb threat against
the Respondent. Against this background, his testimony is rejected,
to the extent uncorroborated.
mination that he exceeded protective guarantees must be
based upon the words actually used, rather than the witnesses
interpretation, and in this instance, it was my impression that
Cryderman failed to substantiate anything other than a re-
mark that in the event of violence, the Respondent might
seek to preserve its resources by resorting to a protective
lockout. For the reasons already expressed, sach argumenta-
tion is privileged under Section 8(c) of the Act.
Randy House, Danny Richards, and Randy Sibley. All
three members of this group testified. First, Sibley recalled
Cognetti stating that the Company had the legal right to lock
the doors and not let employees come to work. Sibley, an
employee with more than nine years’ service, was told by
Cognetti that as a senior employee, he believed that, if the
Union came in, Sibley had a lot to lose since he was vested
in the Respondent’s pension and stock purchase plans.
Sibley’s testimony does not disclose the context in which
Cognetti made this remark, and he admittedly had no recol-
lection of any other specifics of this meeting of about one-
half hour.
House testified that Cognetti said he was new in his posi-
tion and unaware of the problems in the warehouse. He ap-
pealed that the employees give him a chance. He allegedly
also stated that the day the Union came in, he could ‘‘put
locks on our doors’’ and ‘‘shut our benefits off.’’ House con-
firms that Cognetti told Sibley that he had a lot to lose be-
cause his retirement benefits were already vested. House had
limited recollection concerning this meeting, and did not re-
member whether Cognetti discussed the mechanics of collec-
tive bargaining and what was meant by the give-and-take
process. He could not recall the context in which Cognetti
referred to benefits or if it was in the context of the
union/nonunion benefit comparison.
Richards testified that, in making the comparison between
union and nonunion benefits, Cognetti discussed aspects of
negotiation, stating that:
[B]efore the employees would gain anything, something
would be taken away from what we already had. We
could lose our benefits, our ESOP, things like that be-
fore we’d actually gain anything.
Cognetti also said, however, that negotiations is a process in
which one might be willing to give something up to get
something else. Richards confirms that Sibley was told that
he should speak up, as he was one of the senior men with
vested rights, and he had a lot to lose. He also agreed that
Cognetti mentioned that he had held his position for only 90
days, and appealed that he be given a chance to prove that
employees were wrong in the opinion they held toward him,
and that they wait a year, and then if they wanted a union,
he would not fight it. Richards testified that there was a ru-
mored lockout, and one in his group asked Cognetti about
it. The latter allegedly replied that that it was possible after
a certain number of days, but that everyone would be locked
out if it happened.30 Finally, Richards admitted that when
someone in the group expressed concern for his own job, ref-
erence was made to the fact that Kinney does not fire people.
Having considered the testimony, I am unwilling to find
that Cognetti made unlawful reference to a lockout. The tes-
timony of the three employees gives three different versions
of his remarks in that regard. Richards testified that it was
raised by an employee, rather than Cognetti. Sibley, as was
true of Cryderman stated that be believed that Cognetti re-
ferred to the violent strike at St Joe Mineral and the fact that
the latter had to padlock the gates as a protective measure.
Sibley added that it was possible that the reference by
Cognetti to locking the doors may have been a reference to
what he would do in the event of violence toward Kinney
Drug, although Sibley avers that he did not understand it that
way. In my opinion, the testimony of Sibley, Richards, and
House fails to isolate the exact language used by Cognetti in
any persuasive fashion, and, to that extent, offers an unreli-
able vehicle for testing the parameters of Section 8(c) of the
Act in connection with statements imputed to Cognetti at the
time.
The allegations that the Respondent violated Section
8(a)(1) of the Act based upon remarks concerning the me-
chanics of bargaining are also dismissed on the same ground,
namely, the absence of a consistent, reliable pattern of testi-
mony as to the language and complete argumentation made
by Cognetti in that regard.
I did, however, believe their mutually cooroborative testi-
mony that Cognetti warned Sibley that he had more to lose
because his pension was vested. Cognetti, in denying any
‘‘threat,’’ admitted that Sibley might have been reminded
that he was vested, a remark that would tend strongly to
imply that Sibley stood to suffer if the Union were des-
ignated. It is concluded that the comment attributed to their
chief executive was not manufactured by these incumbent
employees, and that, as it tended to impede the exercise of
Section 7 rights, the Respondent thereby violated Section
8(a)(1) of the Act.
Thomas McFerran, Carl Burns, and Dave Herheim.
McFerran, a former employee who had been discharged on
the basis of an alleged theft, testified that his group met on
two occasions with management.31 At the first such meeting,
Cognetti assertedly discussed what would occur in negotia-
tions if the Union were designated, by stating as follows:
[T]he main point was we would lose a lot of benefits
that we had. Kinney’s would fight over the negotiating
table and that we would be worse off with anything that
the Union could give us compared to what Kinney’s
did give us and could give us.
303KINNEY DRUGS
32 McClure denied attending attending a meeting involving
Cognetti, Frenyea and either McFerran and Herheim. Frenyea, to his
recollection, did not attend a meeting involving Herheim, Burns, and
McFerran. The issue need not be resolved.
33 Cognetti denied ever telling employees that he knew the number
of employees that attended union meetings, or that such data was
possessed in writing. As shall be seen, McFerran attributed the iden-
tical comment to a meeting of all warehouse employees conducted
by Cognetti shortly after the union meeting of November 7.
34 The complaint erroneously alleges that this change occurred on
October 1. The discrepancy is consistent with the General Counsel’s
misapprehension that the October 9 meeting took place on Sep-
tember 29. The variance is not material.
According to McFerran, Cognetti did not specify just what
benefits would be affected. On cross examination, McFerran
also acknowledged that the employees were informed that
the process of negotiations involves give and take and a
party might concede something away to get something else,
and that Kinney could not ‘‘be made’’ to yield to a union
demand. When cautioned by me that findings upon his testi-
mony required the words used by Cognetti, as distinguished
from impression or interpretation, McFerran replied, ‘‘I can-
not remember the exact words that were said.’’
Burns testified that at the first meeting, Cognetti said that
they would play hardball with the Union and would not ne-
gotiate. On cross-examination, Burns admitted to the possi-
bility that Cognetti might have explained the process of ne-
gotiations, in terms of give-and-take, and the barter concept,
and that the law does not compel the Company to agree to
union demands.
A second meeting apparently on November 13. McFerran
testified, and Burns basically agreed, that on this occasion,
Cognetti was accompanied by Dave McClure, but Wayne
Frenyea entered toward the end.32 Cognetti, refered to a let-
ter that he had distributed to the employees, and appealed for
time, up to a year, to correct discrepancies in the warehouse,
and that while he wasn’t sure as to how they were leaning,
he would like all three to ‘‘go out and persuade other people
to vote ‘No’ for the Union and that he’d like to see a thirty-
five to zero vote.’’
Burns added that the second meeeting that Cognetti with
the aide of documentation, made a case against the Union by
stressing existing benefits and by comparing those negotiated
by unions elsewhere with those of nonunion employers. In
the course thereof, Burns declared that he was leaning to-
ward the Union, whereupon Cognetti asked why. Burns ex-
plained that he felt his job was threatened by the hiring of
part-time employees, and wanted job security. When
Cognetti attempted to disabuse him of this concern, Burns re-
ferred to threats to Les McClure and Otis Woods. Cognetti
denied that this happened, whereupon Burns stated that he
knew Woods and McClure for a long time and felt he knew
who was telling the truth. Cognetti stated that no one’s job
would be in jeopardy as a result of this union campaign, in-
cluding Woods and Les McClure. Burns recalled that during
the second meeting, Cognetti stated that he would appreciate
it if the three went out and urged coworkers to vote ‘‘no’’
and to show support for the Company by not attending any
more union meetings. It is averred that Cognetti added that
he knew who attended and read off numbers that attended
that, according to Burns, were ‘‘right on the money.’’
As was true of other witnesses presented by the General
Counsel in support of like allegations concerning what would
transpire in collective bargaining, the testimony of McFerran
and Burns does not rise to a level arousing confidence that
the remarks attributed to Cognetti were anywhere close to the
specific arguments advanced. As in the case of the others,
their testimony struck as an interpretation, dimmed by the
passage of time, as to the points actually made. Accordingly,
the allegation in question is not substantiated by a reliable
accounting of what was said and shall be dismissed.
On the other hand, I credit the mutually corroborative tes-
timony of McFerran and Burns, an incumbent employee,
over Cognetti’s denials, that he appealed that they campaign
against the Union and decline to attend union meetings in the
future. This would likely be construed as a directive from the
highest ranking official of the Company, and would tend to
coerce those present in the exercise of their Section 7 rights.
Accordingly, I find that the Respondent violated Section
8(a)(1) of the Act in this respect. See Salvation Army Resi-
dence, 293 NLRB 944, 970–971 (1989). However, I am in-
clined to give the Respondent benefit of the doubt as to
Burns’ uncorroborated testimony concerning an awareness on
Cognetti’s part as to the number of employees that attended
union meetings,33 and to dismiss the allegation that any such
comment was made during this set of group meetings.
3. The corrective action
The General Counsel contends that in certain areas the Re-
spondent took corrective action with respect to certain prob-
lems raised at the October 9 meeting. Thus, the complaint al-
leges that the Respondent violated Section 8(a)(1) of the Act
by restoring coffee privileges, by shutting off a buzzer, and
by promoting part-time employees to full time.
As for the coffee privileges, it appears that prior to the
campaign employees were permitted to leave their work to
obtain coffee outside of their normal breaks, consuming it
while on duty in their work areas. This practice was cur-
tailed, also before advent of the Union. Based upon credited
employee testimony, I find that the issue was raised at the
October 9 meeting, Cognetti expressed sympathy, and shortly
thereafter employees were permitted to obtain and consume
coffee during normal work periods.34
By way of defense, the Respondent appears to recast the
issue. Thus, by way of brief, the Respondent states that ‘‘the
employees complained that prior to the union campaign, the
coffeepot in the breakroom was no longer turned on before
they arrived at work at 7:00 a.m., and they were, therefore,
unable to drink coffee during work time before their 9:00
break.’’ It goes on to explain that the problem was resolved
inadvertently by Ron Field, the human resources manager.
Only under the brief’s interpretation does Field’s explanation
make any sense. His professed role was an instruction that
the coffeepot be turned on prior to the commencement of the
work shift. Thus, Field asserts that after the union campaign
got under way, he reported to the warehouse regularly, in-
structing Dave McClure to have the coffeepot on before his
arrival at 6:15 or 6:30 a.m. On this basis, it is argued that
the employees were an indirect beneficiary of Field’s request.
However, the explanation is narrower than the grievance and
its solution.
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 The Respondent did not rebut employee testimony that prior to
October 9 they were denied access, except on breaks, to the coffee-
pot.
36 Cognetti denied ever making any decision respecting coffee dur-
ing the campaign. However, I refused to accept that the employees
concocted their testimony that a change was made.
37 Labor demands in consequence of the IBM project were evident
before the petition was filed. For this reason, and during that time
frame, the Respondent in September hired five new part-time em-
ployees and retained a student.
However, this contention employees a traditional ‘‘straw
man’’ approach, relying on testimony that fits neither the
grievance, nor its solution. It does not counter mutually cor-
roborative testimony from employees Koerick, House, and
Richards, who attest to the fact that, prior to the campaign,
an existing practice was stopped so as to deny employees ac-
cess to the coffeepot during working time. They also aver
that this was corrected shortly after the October 9 meeting.35
Field’s explanation falls short of combatting uncontradicted
testimony that once the coffee restriction was retracted, em-
ployees again were permitted to drink coffee thourghout the
workday.36 Obviously, Field perceived the problem as based
upon the contents of a single pot of coffee, while the em-
ployees, who were in a position to know better, understood
it as privilege that extended throughout their shift. Dave
McClure, who would have been alert to what was going on
in the warehouse after the first pot of coffee had been con-
sumed, and who also would have been responsible for en-
forcing and relaxing rules affecting warehouse personnel,
was not examined as to such a restriction or its removal.
In sum, while Field claims responsibility, and hence ac-
knowledges that a change was made during the critical
preelection period, his testimony does not reflect that he un-
derstood its nature and scope. Although Cognetti denies that
he adjusted the coffee access rules, the Respondent has failed
to contradict the testimony of employees as to the fact and
dimension of this change. While by no means of major con-
cern, this step on the part of the Respondent would be taken
by employees as an expression of good faith, transmitting
management’s readiness to deal with employee complaints
without need for intervention of third parties. The Respond-
ent violated Section 8(a)(1) by eliminating the restriction de-
scribed by credited, undenied testmony of employees, with-
out offering any explanation tending to dissociate such action
from a desire to influence the impending election.
A more pronounced change affected three particular em-
ployees. Thus, at the time of the October 9 meeting, Rita
Smith, Vicki Bice, and Sally Ayen were regular part-time
employees. Among the concerns mentioned to Cognetti at
that time was the fear that part-time help would be used to
replace full-time employees. According to the Respondent’s
personnel records, Smith, Bice, and Ayen were upgraded to
full time on October 25. (R. Exh. 6.) The General Counsel
argues that this step was in response to the aforementioned
complaint concerning the utilization of part-time personnel.
This certainly was a step in that direction even though a larg-
er group, numbering at least six employees were retained in
their capacity as part-time workers.
Cognetti explained credibly that the employees in question
were working full-time hours, if not more, and management
preferred to upgrade them, rather than hire additional part-
time employees. There is no doubt that the reclassification
was explainable in terms of the ongoing, intense demand for
labor, as new stores, one extraordinarily large, were added,
yet promised labor savings due to the IBM project had not
materialized.
However, elections would seldom be insulated from the in-
fluence of employer economic strength if management were
free during the critical preelection period to grant economic
benefits just because they made good sense. Here, the under-
lying rationale for the promotions was not shown to have
arose suddenly,37 under conditions compelling a need for im-
mediate action. The reclassifications took place only 5 weeks
prior to the scheduled election, and was a gesture likely to
enamor at least three eligible voters to the Respondent’s
clearly communicated goals in this campaign. The decision
entailed a reward whose timing would not be recognizable
by those affected and other employees as a product of prior
practice. See, e.g., Trump Plaza Associates, 310 NLRB 1162
(1993). In sum, no reason is evident as to why this discre-
tionary act was not deferred for the relatively brief period
that would have prevented undue advantage in the impending
election. Accordingly, it is concluded that the Respondent
violated Section 8(a)(1) of the Act by elevating Smith, Bice,
and Ayen to full-time status.
Cognetti denied that there was any reference to the buzzer
at the October 9 meeting. Although Drew Koerick initially
testified that employees also complained about installation of
a loud buzzer to announce the start of shifts and the end of
breaks. Later, on cross-examination, he acknowledged that
this was not mentioned in that meeting, but raised by
Cognetti himself at the group meetings in November when
he asked if shutting it off would help.
Les McClure confirmed that the issue was raised during
the group meeting in November. He acknowledges that, in
the course of that session, it had gone off three times, dis-
rupting Cognetti. The latter acknowledged the disruption, and
that, after learning its purpose, asked Dave McClure if the
buzzer could be turned off ‘‘while we were holding meet-
ings.’’ Cognetti does not deny that the very next day the
buzzer was turned off for good.
The Respondent’s contention that the issue was not raised
by employees is inconsequential. No one appears to hold any
reservation that the buzzer was obnoxious—a common trait
found generally in industrial buzzers. In my opinion, the key
to the inquiry is uncontradicted testimony by Les McClure
that this condition had existed since the buzzer was installed
some 10 years earlier. In this light, though the change might
be viewed in some quarters as trivial, it exemplified correc-
tive action with respect to an existing condition, and was
symbolic of management’s newly gained sensitivity and re-
sponsiveness to an improved working environment. While
not of major consequence, the innovation fell within the
range of conduct impermissible during an organization cam-
paign, and the Respondent thereby violated Section 8(a)(1) of
the Act.
4. Otis Woods and Les McClure
a. Preliminary statement
Testimony was adduced from several of the Respondent’s
witnesses, all of whom now were part of the supervisory
staff, that, according to observations and discussions with
305KINNEY DRUGS
38 Woods signed an authorization card on September 23, several
weeks after the initial union contact, and attended four union meet-
ings, but apparently engaged in no other union activity. Anthony E.
Cousino is currently the receiving manager, but during the campaign,
he was a receiving clerk, and an eligible voter. He testified to an
‘‘understanding’’ that the spokesmen for the Union were Koerick,
Les McClure, and Otis Woods. The foundation for this under-
standing is not defined, and, accordingly, it is given no weight.
39 Compare this statement with the assurance contained in
Cognetti’s allegedly unlawful letter of November 19. G.C. Exh. 9.
That document provides job guarantees to union organizers only if
the Union were defeated.
40 Koerick and Les McClure also testified that they encountered
Woods as he was leaving and similarly concluded that he was visi-
bly upset.
41 There is no evidence that a union meeting was held or sched-
uled for November 13. One did take place on November 14. See
G.C. Exh. C-8(b).
42 Scott’s testimony is not immediately binding upon the Respond-
ent, but is probative to the probability of Woods’ sworn versions of
what transpired.
employees, by November 11, the Company was in pretty
good shape heading in to the election. During that week,
however, on November 13, Cognetti, the Company’s most
prominent functionary, far from any sense of confidence,
shifted direction in a manner that could explained only as an
act of reckless desperation.
It is undisputed that Cognetti singled out Woods and Les
McClure that day for separate back-to-back meetings. It is al-
leged that, in the course of those meetings he threatened each
with discharge if they did not meet with employees, and at-
tempt to influence the latter against the Union, while in-
structing that they not attend union meetings. In response,
McClure and Woods met with employees the next day, and
the General Counsel contends that, in doing so, they acted
as agents for the Respondent, which further violated Section
8(a)(1) when they reported to coworkers that they had been
threatened with discharge had they refused to persuade those
assembled as to the virtues of Cognetti and to reject the
Union.
As shall be seen, Cognetti denies virtually all material tes-
timony offered by Les McClure and Woods, the probability
of which is substantiated not only be the unlikelihood that
these senior employees would pitch battle with the company
president on the basis of an arsenal of lies, but by a bevy
of current employees, who attest to reports by the latter as
to their meetings with Cognetti. Cognetti admits that the two
meetings took place in tandem, but denies that they were
otherwise related. He claims that he met with the Woods to
solicit his assistance in refuting rumors of a ‘‘hit list,’’ a tale
that had emerged during the group meetings and was turning
to the Union’s advantage. He claims that he met with Les
McClure concerning and entirely different issue; namely, em-
ployee complaints, also finding their origin in group meet-
ings, that the latter’s dispute with his brother, Warehouse Su-
pervisor Dave McClure, was disrupting their work.
b. Cognetti/Woods meeting
Otis Woods testified that on the morning of November 13,
he was summoned to meet with Cognetti in the foreman’s of-
fice. No one else was present. Cognetti indicated that he
thought Woods was involved in union organization, but
Woods denied that this was so.38 According to Woods, it
was his impression that Cognetti did not believe his denial,
for Cognetti said, in that regard, that he worried more about
Woods than Koerick. Woods, who is now a supervisor and
showed a reluctance to testify against the president of the
Company, went on to relate that it was ‘‘asked,’’ or ‘‘sug-
gested’’ or that he was ‘‘told’’ to attend a meeting and ‘‘ex-
plain to the people that the problems [Kinney’s] was having
wasn’t [Cognetti’s] . . . fault. . . .[; and] Kinney was a
good company, fair.’’ Woods added that he was told that
‘‘[i]f the union got in—my job couldn’t be guaranteed.’’39
On the other hand, he was also told that if he either held or
participated in the meeting, his job would be guaranteed.
Cognetti also allegedly said that if Woods attended another
union meeting, he would know about it before Woods
reached his home.
After the meeting, Woods walked off the job because he
was ‘‘upset’’ in consequence of both Cognetti’s accusation
that he was a union leader and threat to his job. That same
day, he contacted the Union concerning this meeting, and on
advice of union representative Matthews, that same evening,
prepared a statement as to what had transpired with Cognetti.
(G.C. Exh. 10.)
The fact that Woods left the plant in mid-shift that day is
not contested by the Respondent. Several employees attest to
the fact that Woods left the meeting with Cognetti in a state
of distraught. Wendell Scott, an employee with 17 years’
service, and Woods’ brother-in-law, testified that he encoun-
tered the latter shortly after the Cognetti meeting. Scott de-
scribed his face as pale and his appearance as visibly shak-
en.40 Woods allegedly informed Scott that he had just come
from a meeting with Cognetti, reporting that the latter ‘‘had
asked him to call a meeting for the following morning and
try to discourage people from voting for the Union.’’ Woods
stated that he ‘‘could be fired’’ if he failed to do so. As
Scott recalled, Woods reportedly asked Cognetti if his job
would be guaranteed if he held the meeting, and that he was
told that there was no guarantee either way, and that if
Woods attended the union meeting scheduled for that night
that there was ‘‘a pretty good chance that his job was in
jeopardy.’’41 Woods also stated that Cognetti warned that he
would know if Woods attended the union meeting before he
reached home. Finally, Woods reported that Cognetti stated
that he would deny that this meeting with Woods had taken
place. Scott added that Woods, in his state of upset, indicated
that he was going to quit, and had to discuss it with his wife,
Scott’s sister. Scott could not calm him down and Woods left
the plant. A few hours later, Woods returned to work, and
according to Scott, had calmed down, but still showed a lot
of strain.42
Critical aspects of Woods’ account were denied by
Cognetti. He justified his calling Woods to the office on the
basis of information developed in the small group meetings.
He expressed a belief that, as the group meetings continued,
the effort to defeat the Union made great strides. This course
was disrupted, in his opinion, by feedback that same week
that the Company had a ‘‘hit list.’’ Cognetti explained that,
prior to the November 11 group meeting with Koerick, Les
McClure, and Woods, he had not heard reference to that
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
43 At that time, Les McClure admittedly stated that he knew there
was a ‘‘hit list’’ out there, that his name was on it and, if the Com-
pany won the election, he and other organizers would be let go.
44 This description would aptly describe conditions after Woods
and Les McClure met with employees on November 14. However,
not a single employee was called to substantiate that, prior thereto,
the attitude described by Cognetti, was held, heard or expressed by
any individual or sector of the voting group. Indeed, although
McClure mentioned the term on November 11 in connection with his
personal fears, not a single incumbent employee was offered to con-
firm that rumors of a ‘‘hit list’’ were circulating at the time. An-
thony Cousino, now a supervisor, but a rank-and-file employee dur-
ing the campaign, testified that at his group meeting on November
14, he inquired as to the rumor he had heard concerning a ‘‘hit list.’’
However, he did not disclose the source of the rumor or when he
first heard it. It is entirely possible that the rumor and the ‘‘feed-
back’’ described by Cognetti was given widespread attention after
Cognetti’s November 13 meetings with Woods and McClure, and,
particularly, after Woods and McClure met with employees on the
morning of November 14. In any event, Cousino’s testimony does
not corroborate Cognetti’s claim that rumors circulated concerning a
hit list prior to his November 13 meetings with these suspected
union organizers.
45 Woods’ limited involvement has been discussed previously.
McClure, on the other hand, along with Drew Koerick, attended the
initial meeting with union representatives on September 10 and 17.
With Koerick, he signed a card on September 10, but, at some point,
he informed Matthews that he did not wish to reduce his role out
of concern that it would aggravate an ongoing feud with his brother,
David McClure, the warehouse supervisor. He did, however, support
the Union throughout the campaign, and, in two instances, acted as
a conduit in the solicitation of authorization cards.
46 Parenthetically, it is noted that Cognetti did not profess to have
had any foundation for taking this accusatory stance against someone
whose help he needed. There is no evidence that a hit list was ever
mentioned or given lip service by Woods, let alone concocted by
him. Indeed, Woods had never professed any fear for his job—that
is, until after his November 13 meeting with Cognetti. Moreover,
while Les McClure admitted to mentioning the ‘‘hit list,’’ and to
have expressed fear for his job, Cognetti disclaimed any intention of
dealing with that issue in their private meeting.
phrase.43 He adds that at many subsequent meetings, em-
ployees would raise the issue. He added that, each time, he
dismissed the idea, stating that no one would be fired if
‘‘we’’ won the election.
Nevertheless, as I understand Cognetti’s testimony, he be-
lieved that his assurances fell on deaf ears. He claims that
within 2 days after the first group meeting the ‘‘hit list’’ had
become a ‘‘bombshell’’ that had to be dealt with, as employ-
ees were saying:
I don’t want to vote for this union, but I’m not going
to let you, Mr. New Guy come in here and fire my
friends, I’ve got to vote for the union even if I don’t
want to because I got to . . . stick by my buddies.
They allegedly reported that:
[T]hey really didn’t want to vote for the union, but in
order to save Les, and in order to save some of the
other organizers . . . their implications to me was, they
were more concerned with maybe some of the other
. . . organizers . . . other than Les. To . . . me I was
interfering with a free election and they seemed to be
sympathizing with Otis and the fact that if Les got
fired, then Otis would get fired. And other organizers
would get fired with them. So, the hit list thing just
kind of mushroomed in our face . . . and it was be-
coming extremely, extremely frustrating.44
Cognetti claims that he turned to Woods to help him out
of this dilemma. He believed that Woods and McClure were
the organizers, and that Koerick was the principal union con-
tact.45 As between them, Cognetti claims that he was con-
cerned about Woods because of his popularity, leadership
qualities, and persuasive influence among coworkers. He be-
lieved that the employees were concerned about Woods, not
McClure, and that Woods ‘‘was going to beat me with this
thing.’’ He claims that he decided to meet with Woods be-
cause he regarded him as a ‘‘friend’’ that he could approach
and whose leverage in the warehouse could be used to ad-
vantage, particularly, since Cognetti viewed Woods as having
more credibility among the workers than he had. Cognetti
went on to relate ‘‘I wanted to ask him for his support to
see . . . if he was really on our side and was . . . simply
looking for some type of offer.’’
However, Cognetti’s own version reveals that he did not
open with dialogue usually characteristic of friendly persua-
sion. He admittedly opened by thanking Woods for starting
the organization campaign ‘‘and for manufacturing this hit
list idea,’’ and the sympathy you got from it.46 Cognetti went
on to testify that he appealed to Woods, ‘‘Unless you come
forward and . . . help me quell this hit list idea, I can’t win,
you got me beat.’’ Woods reacted with an emotional denial
that he was a union organizer, claiming that he had nothing
to do with it. Cognetti asserts that he tried to calm him down
assuring that Woods would not be fired, stating ‘‘I just want
you to help me.’’ He claims to have appealed to Woods that
he could not ‘‘stop this firing nonsense unless you talk to the
people.’’ Woods, however, became hysterical, stating such
things as, ‘‘I’m out of here, I can’t handle it anymore. . . .
I’m not your man. . . . I’m not your man.’’ Cognetti claims
that Woods was totally out of control, and that he did not
know what to do, so he told Woods ‘‘get out of here.’’
Cognetti denied that any reference was made to the
Clearview Hotel, or Woods’ attendance at union meetings.
c. Cognetti/McClure meeting
Cognetti claims that Woods’ inflammatory reaction, in
what he described as a very brief meeting, convinced him
that the idea of meeting with Woods was ‘‘a mistake.’’ Yet,
he followed that meeting by risking another unwitnessed, on
his own account forseeably inflammatory session with Les
McClure, another perceived union leader. Cognetti explains
that he did so because both meetings were preplanned and
they were topically unrelated.
McClure’s account indicates that the similarity of the
meetings was based upon more than their timing. He avers
that Cognetti opened by pointing his finger at McClure,
while accusing the latter of having done a fine job running
the Union’s campaign and now it was McClure’s turn to in-
form the employees to vote against the Union. When
McClure asked why Cognetti had singled him out, the latter
replied, ‘‘because you’re the organizer.’’ Cognetti added that
if this was not the case, to give him the names of those who
were. According, to McClure, he was then told that:
307KINNEY DRUGS
47 Cognetti also allegedly stated that he would deny that their
meeting ever took place, and were it necessary to do so, that he
would be believed over McClure.
48 Les McClure and his brother David, the warehouse supervisor
did not get along. It was a feud of long standing. Les McClure was
upset when his brother, who had less time with the Company, was
promoted to warehouse foreman about 7 years earlier. Les McClure
more recently admitted to complaining to coworkers concerning his
brother’s alleged mistreatment of subordinates as well as himself.
49 Was this an admission on the part of Cognetti that he had taken
a step to resolve at least one of the complaints raised by employees?
50 McClure admits that the family problem was raised by Cognetti,
and that Cognetti might have said that he had just heard about it in
the last couple of days from a number of employees. He also ac-
knowledged that Cognetti said that he was upset about the con-
troversy because it was disrupting production, and that he would cor-
rect the problem if it required that he get rid of one of the two. At
the same time, not single employee was called to verify that they
had raised the issue during the group sessions, or that the matter had
a negative impact on work in the warehouse, or that they, or anyone
else had complained that this was the case. Since this meeting,
Cognetti admittedly had not canvassed the employees to ascertain
whether the problem had eased. Dave McClure appeared as a wit-
ness, but afforded no testimony that he, his brother, or they together
adversely influenced work. Nor does it appear that Cognetti held a
similar meeting with Dave McClure.
51 Steve Hayden, the Respondent’s vice president for information,
testified that early in the week of November 11, he informed
Cognetti that an employee, Bernie Knowlton, had told him that he
had heard from some unidentified source that Les McClure had
made the following pronouncement:
[I]f the Union went into the warehouse, Les would see to it that
the management people, including his brother, would be brought
down.
Cognetti did not testify that he at any time confronted Les McClure
with this accusation. It is difficult to imagine that Cognetti would
have allowed this serious matter to pass—that is if he were aware
of it. It is equally difficult to imagine that he would not have been
aware of the allegation if it in fact had occurred.
52 It will be recalled that Woods, on the heels of his meeting with
Cognetti, went home, apparently, without permission. Uncontradicted
testimony establishes that he later returned that afternoon.
53 Woods drew a complete blank as to how the meeting was ar-
ranged. If there were any doubt as to McClure’s testimony as to the
fact of a posting, it is dispelled by Frenyea’s testimony that he knew
that a meeting had been scheduled for the next day, because he saw
the posted announcement on the afternoon of November 13. Another
witness for the Respondent, Anthony E. Cousino testified that he
also learned of the meeting from a notice posted at the timeclock.
[W]ithin the next twenty-four hours or by the next
morning I had to have a meeting with the rest of the
employees and advise them all to vote no.
He [Cognetti] wanted a thirty-five . . . to . . . noth-
ing vote and if I didn’t have this meeting that . . . my
job would be done.
Cognetti allegedly enforced his remarks by stating that he
could get rid of anyone he wished and that he would termi-
nate McClure’s wife, who worked for the Company, as well.
Cognetti also told McClure not to attend the union meeting
scheduled for the next day at the Clearview Restaurant, add-
ing that ‘‘he’d know as soon as the meeting was over who
was there,’’ and that his job would be eliminated if he at-
tended.47 McClure informed Cognetti that he would do as he
had been told by getting together with Woods and having the
meeting as soon as possible.
The Respondent contends that the feud between brothers
was the sole focus of the McClure meeting.48 Cognetti insists
that the Union was not even mentioned. Cognetti claimed
that Les McClure was called on the carpet solely because,
in the group meetings, he had learned from employees that
Les’ behavior toward his brother was ‘‘upsetting and inter-
fering in our operation and this was brought up by many
people in the meetings of the 11th and 12th.’’ In fact, ac-
cording to Cognetti, several employees brought up the fact
that the feud was interfering with warehouse operations, with
Les undermining Dave by resisting his directives and encour-
aging others to do so as well. This translated into a ‘‘nui-
sance for employees’’ affecting their ‘‘morale and atti-
tude.’’49
Though concerned about his credibility, the ‘‘hit list,’’ and
rumors that union organizers, including Les McClure, would
be discharged, Cognetti admittedly raised that possibility:
I let him know in no uncertain terms that he must im-
mediately, if not sooner, begin to communicate and co-
operate with his brother. And he must immediately stop
undermining and countermanding his brother’s manage-
ment decisions. And if he did not, his job . . . defi-
nitely was in jeopardy his job as well as his brother’s
or both . . . would be in jeopardy.50
Cognetti, when asked by the Respondent’s counsel as to
whether their was reference to union activity, replied:
None whatsoever, this meeting had absolutely nothing
to do with union activities. It was something that . . .
normally would be held by the warehouse supervisor if
he had not been a party to the problem.51
Cognetti also denied that there was any mention of Les
McClure’s wife or his wife’s position. And he reiterated that
he made no remarks concerning union meetings at this, or
any other meeting with employees. Finally, Cognetti insists
that he did not tell Les McClure to speak with the employ-
ees.
d. The November 14 employee meeting
McClure testified that on November 13, after his meeting
with Cognetti, he met with Woods and they decided to hold
the meeting that afternoon.52 Woods, then departed osten-
sibly to seek permission from Epton McCrea, a supervisor.
McClure testified that later that afternoon he was informed
by Woods that the meeting would be held the next morning
at 7 a.m. According to McClure, he observed Woods post a
notice announcing the meeting by the time clock.53
On November 14, at the 7 a.m. start of the shift, about
thirty employees failed to report to their work stations. In-
stead, as previously notified, they gathered in the meeting
room. Woods first addressed the group, and according to
Koerick, stated that he did not want to do what he was going
to do and that it was not consistent with what he was feeling.
He went on to report that Cognetti had called him into the
office the day before and instructed him to assemble the em-
ployees, and to tell them that the Union is bad and that
Cognetti is good and that it would not be a good idea to
have the Union. Koerick also testified, along with Randy
Sibley, Randy House, Timothy Alguire, and Danny Richards,
that Woods relayed that Cognetti told him that if he did not
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 Wendell Scott, another employee, was less certain, but testified
that he ‘‘believed’’ that Woods mentioned at the meeting that
Cognetti had threatened his job.
55 McClure testified that the only possible supervisor present was
George Erdman, whose status is in dispute on the basis of the
Union’s challenge to his ballot in the representation case. The chal-
lenge is overruled, infra.
56 As I understand McClure’s testimony, there was little discussion
of what had transpired with Cognetti on November 13. In his case,
he explained that a number of employees, on November 13 ap-
proached him to inquire as to what provoked Woods to leave the
plant. He used those occasions to advise them of his own encounter,
which he assumed tracked that of Woods.
57 Koerick testified that after both Woods and McClure reported
that Cognetti wanted a 35 to nothing vote, he separately stated that
there would be at least one vote for the Union, thus, implying, it
would be their own.
57 Indeed, the credulity of any such expression on his part would
receive logical support from the Company’s discharge history, a
point Cognetti allegedly made in at least one of his conversations
with Les McClure.
deliver this message, he would be terminated.54 Koerick,
with confirmation from Danny Richards, added that Woods
stated that Cognetti advised that he was aware of the upcom-
ing union meeting, and he would have someone attend to see
if Woods attended, and if he did, Woods would be fired be-
fore he reached home. Finally, according to Koerick and
Richards, Woods stated that he had been informed by
Cognetti not to press charges against him because if he did,
Cognetti would last longer, and Woods would lose.
Woods testified that he and McClure were among the first
to speak, and that, to his knowledge no supervisors were
present.55 He states that he told the employees that
‘‘Kinney’s was a nice place to work and Rich [Cognetti] was
a nice guy to work for.’’ On examination by the Respond-
ent’s counsel, Woods acknowledged that people were upset
about what transpired at this meeting.
According to McClure, Woods spoke first, briefly stating
that he had met with Cognetti the day before and was asked
to persuade everybody to vote no. Then, McClure avers that
he spoke, stating that he had met with Cognetti, who asked
for a 35 to nothing vote and that everyone in the warehouse
vote no.56 According to McClure, neither he, nor Woods
made any statement as to how they intended to vote. He stat-
ed, however, that he told them that ‘‘it wasn’t going to be
a thirty-five to nothing vote.’’57 According to McClure, the
meeting then broke into a discussion of the pros and cons
of unionization.
e. Concluding findings
The Respondent, by way of brief, argues that Cognetti’s
version is more reliable than that of Les McClure and Otis
Woods ‘‘in light of the background and tenor of the cam-
paign and the efforts made by the Company to dispel rumors
of discharge.’’ Unfortunately, the ‘‘background and tenor of
the campaign’’ favors the Respondent only if one were will-
ing to accept the subjective, almost entirely uncorroborated
testimony by Cognetti, major portions of which struck as
contrived and improbable.
Cognetti obviously is an intelligent gentlemen having
years of operational experience in this large drug chain.
Moreover, as senior vice president for operations, he declared
that personnel matters were a ‘‘major’’ part of his responsi-
bility. Yet, none of the critical aspects of his testimony made
sense. His stated reasons for meeting privately with these
employees were pure pretext.
He claims to have intended merely to enlist Woods’ sup-
port and to use his influence to the effort to secure a ‘‘no’’
vote. Yet, it is difficult to imagine that he could have ex-
pected any such plan to succeed without resort to coercion
or bribery. Did he really expect that one whom he believed
to be a union organizer would change horses merely on re-
quest? Even if this hurdle were passed, Cognetti’s technique
goes even further in causing one to pause. Thus, while he
claims to have been interested in convincing Woods that he
was a ‘‘man of his word’’ and worthy of the latter’s trust,
he alleges that he opened the session with baseless sarcasm
and unsupportable accusation. His own testimony suggests an
attitude more in line with the fear tactics attributed to him
by Woods and Les McClure, than friendly persuasion. It is
unacceptable that a man of Cognetti’s background and re-
sponsibility would expect that cooperation might result from
such a grating technique.
His excuse for seeking out Woods was no more persua-
sive. He avers that he appealled that Woods talk to employ-
ees in the following terms:
I asked him to support me with this hit list idea and
to get out there and tell people you’re not going to get
fired. I’m not going to fire—you’re not going to get
fired, you know, whatever you need to say, you know,
I said, ‘‘they just won’t believe me.’’
This step was necessary, according to Cognetti, because of
his perception that he was not trusted by the employees and
they were concocting reasons why he should not be believed.
Thus, he testified:
It was constant—one excuse manufactured after an-
other one for me, one time [I] was the ‘‘new guy’’ so
nobody should believe me.
The next time it was something else, you know, I’m
a pharmacist, I’m not sympathetic with them. It was
just constantly manufacturing one reason after another
not to believe me.
I needed somebody credible or I didn’t have a
chance to turn it around. It blew up. I was sorry I tried
it. I didn’t know what else I could have done at that
point.
However, Cognetti must have realized that only he could
build his credibility.57 Instead, if he is to be believed, one
must accept that he would have entrusted this mission to a
rank-and-file employee—and a supposed union protagonist at
that. It is unacceptable that Cognetti would have proceeded
from any premise that employees would find more believ-
able, than his own direct words, assurances from one who
bore all the earmarks of a stalking horse, totally lacking in
authority to bind management.
Cognetti’s interest in reversing any mistrust within the
workforce is also betrayed by his admissions concerning his
meeting with McClure. Thus, apart from his ‘‘off the wall’’
accusations that Woods had started the Union, had ‘‘manu-
factured’’ the ‘‘hit list’’ idea, and had derived ‘‘sympathy’’
as a result, Cognetti met with McClure immediately after the
309KINNEY DRUGS
58 Cognetti admitted that Les McClure twice raised the issue. The
first, followed his October 25 speech. McClure, at the time, ex-
pressed fear that if the Union won the election he would lose his
job. He reminded Cognetti that he was a good, faithful, loyal em-
ployee, with long service, as well as a stockholder in the Company.
Cognetti claims that he assured McClure that he would not lose his
job, reminding that McClure had been through other union cam-
paigns and was still employed. Ron Field testified that, in that same
time frame, Les McClure approached him, stating, ‘‘Regardless of
how this turns out. . . . I know I’m going to be fired.’’ Field replied
that no one would be fired over this. Nevertheless, McClure again
raised this concern before Cognetti and Field during his November
11 group meeting.
59 Counsel for the Respondent does not share in my view as to the
significance of this aspect of the McClure statement. In his
posthearing brief, he argues:
[T]he General Counsel would have this tribunal believe that dur-
ing the course of its efforts to dispel the rumor [concerning dis-
charge of union organizers], the Company did an about face,
shot itself in the foot, and actually threatened to discharge two
of the Union organizers, thereby dooming its chances in the
election.
The incongruity between this argument and Cognetti’s version of
what took place in McClure’s meeting is simply left by the Re-
spondent to ‘‘hang out there.’’ Another interesting statement in that
brief relates to Cognetti’s denial that he threatened Woods. The Re-
spondent in its brief states that, ‘‘This threat would have been incon-
sistent with the Company’s prior course of conduct, and, therefore,
makes little sense.’’ Would the Respondent distinguish the threat to
Les McClure on this ground?
60 Thus, Frenyea disclosed that from the perspective employee that
it was the November 13 threats by Cognetti, and not earlier events
that would turn the campaign to the Union’s favor.
meeting with Woods. Prior thereto, McClure was the only
employee that had declined to quietly accept Cognetti’s as-
surances concerning union based discrimination. There is no
evidence that Woods had ever expressed concern for his job.
Only McClure had expressed that fear.58 Yet, on November
13, a day when Cognetti was burdened by an assumed lack
of credibility, he admittedly reversed himself, threatening
McClure’s job during their private meeting, a step that obvi-
ously would do more harm to his credibility than any third
party could rectify.59
Beyond the foregoing, the remarks of Otis Woods and Les
McClure at the November 14 meeting were totally incon-
sistent with Cognetti’s testimony as to what had transpired
with each on November 13. Not a single witness was called
to contradict the testimony as the remarks they imputed to
Cognetti on that occasion and other occasions. Cognetti
swears these were lies, testimony that raises the question as
to just why employees who were concerned for their jobs
would fabricate a case against their Employer’s top official.
These, of course, would have been egregious falsehoods.
Their seriousness was underscored by testimony of Vice
President Frenyea and Human Resources Manager Field.
Both attest to the fact that the performance of Woods and
Les McClure at the November 14 meeting could only have
inflamed the ‘‘hit list’’ rumors that Field described as untrue
and as having no place in the operation. He testified:
[T]he very nature of the new management concept that
Rich [Cognetti] was trying to instill in the warehouse,
that even the existence or implications of such a list
were certainly counterproductive to the image and the
program that we were trying to instill at the distribution
center.
Field testified that until the ‘‘hit list’’ rumor emerged that the
Company was doing well in the campaign, but that this issue
turned it around. Moreover, Field admitted that on November
14, he learned that McClure and Woods had alleged that
Cognetti threatened them with discharge. He declared it
shocking that these two individuals would tell such a lie. He
admits, however, that after this disclosure, he sought out both
to assure them that they would not be discharged.
Frenyea, as well, professed astonishment. He testified that
he arrived at the warehouse that morning shortly after 7 a.m.
because additional ‘‘group meetings’’ were scheduled to re-
sume at 8 a.m. He claims that he ran in to Don Bush, who
stated:
Boy, you guys are dumb. I can’t believe that you were
that stupid to do that. . . . I cannot believe that you
people threatened to fire Les and Otis. . . . That was
the dumbest thing you could have done . . . you had
it in the bag. I can’t believe you were that stupid.60
Frenyea claims to have reacted in surprise, denying that
‘‘we’d be that stupid to do something like that.’’ Burns indi-
cating that he did not know, but that ‘‘If it comes down to
it, if we have to vote for the union in order to protect some-
body’s job, we’ll do it.’’ Frenyea claims that he was ‘‘flab-
bergasted’’ by the revelation.
Frenyea claims to have moved on to Mae Cryderman, who
was crying. When asked about the problem, Cryderman told
Frenyea that he had lied to her when (in reference to a ques-
tion raised by Nancy Turnball in a group session) he said
nothing was going to happen if the Union came. Cryderman
then observed that it now appeared that Cognetti was ‘‘going
to fire Les and Otis.’’ According to Frenyea, she added that
in consequence she no longer knew whether Frenyea was
worthy of her trust. He then asked if that sounded like some-
thing that he would do, adding
Mae, I can’t promise you, I can’t threaten you, the only
thing I can say to you is is we had an organizational
attempt before, the union did not get voted in at that
time, and no one was fired. . . . If we didn’t do it then,
why would we do it now? It does not make sense. It’s
absurd. It would be the most damaging thing we could
do. Why would we do something so stupid as that?
Frenyea claims that Cryderman then stated that if it came to
the fact that ‘‘these people would be fired if the union did
not come in,’’ and she definitely was going to vote for the
union to protect the jobs of coworkers.
Frenyea also testified that the threat passed on to him by
Cryderman in his opinion was a lie, a serious one at that,
involving a declaration that hit him like a ‘‘ton of bricks.’’
Yet, Frenyea at no time inquired of employees at to what
had happened at the meeting which concluded just before his
conversations with Burns and Cryderman. He also does not
appear to have mentioned either conversation or the alleged
threat to Cognetti. This despite the fact that, on my question-
ing, Frenyea stated that ‘‘someone’’ had attributed the threat
to Cognetti. Yet, he apparently did not mention what had
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
61 At the time of the hearing, Cognetti did not even know if Dave
McClure was aware that this meeting was going on during the shift.
Thus, he was not sufficiently interested to check. Apparently,
Cognetti was not interested in the possibility or reason why his
warehouse supervisor had ignored this direct order.
62 Curiously, this document specifically mentions Les McClure.
Otis Woods, the most influential of the two, according to Cognetti,
is not named therein.
63 Cognetti testified that after learning that the meeting had back-
fired he sent management officials into the plant to inform that no
one would be terminated. However, there is no persuasive corrobora-
tive evidence that this occurred. Although Field, in context of a prej-
udicially leading question, afforded a vague, if not oblique answer,
that could be construed in that fashion, his testimony on cross-exam-
ination clearly and unambiguously establishes that he initiated the
conversations with Woods and McClure, and that he ‘‘had not had
any contact with Mr. Cognetti up to that point.’’ Field did not testify
that he initiated conversations with any other employees as part of
any formal or informal damage control effort. The only other man-
agement official to testify that he discussed the issue with employees
was Frenyea. He too, related that he learned of what had transpired
from individual employees, and responded individually by providing
assurances that there would be no discharges.
64 Woods currently is a supervisor; he was a reluctant witness. He
professed, incredulously, to a lack of recollection as to key aspects
of his private meeting with Cognetti on November 13. One would
think that a confrontation of such proportion with the chief executive
officer would have been indelibly etched in memory of any em-
ployee. This is especially so when one considers the availability of
G.C. Exh. 10, a document he prepared shortly after the incident, de-
scribed by him as an accurate accounting of the confrontation. As
an abstraction, it is unlikely that a rank-and-file employee would
concoct a statement of this nature implicating a chief executive offi-
cer falsely in behavior so blatant as to be a corporate embarrassment.
At the same time, the accuracy of this report is corroborated by a
number of incumbent employees, who attested to Woods emotional
state on November 13, immediately after his confrontation with
Cognetti, and to his role in the employee meeting of November 14.
It was my decided opinion that Woods’ professed difficulty with
recollection was an outgrowth of the same fear concerning his job
status that led him to participate in the November 14 meeting.
65 See, e.g., Salvation Army Residence, 293 NLRB 944, 970–971
(1989); McCarty Processors, 292 NLRB 359, 367 (1989); Delco-
Remy Division, 234 NLRB 995, 996 (1978)]
been attributed to Cognetti, when at 8 a.m. he joined
Cognetti in meeting with Cousino, Hill, and Bowman. Not
only was he disinterested in Cognetti’s position, but be also
did not chose to seek identify of the individual that planted
the ‘‘lie’’ against the firm’s chief executive. When ques-
tioned by me whether management took steps to ascertain
the source, Frenyea replied:
To a degree we did, but it wasn’t so important to find
out who started it, it was trying to stop it.
Frenyea agreed that the remarks passed on to him may have
been founded on misunderstanding. He also agreed that this
could not be ascertained until the remark was clarified by
whoever initiated the ‘‘rumor.’’ The obvious first step in
stopping the rumor was to find out who started it. It is unbe-
lievable that he would draw a complete blank on this matter
that had hit him like ‘‘a ton of bricks.’’
Cognetti also reacted passively. He testified that he arrived
at the warehouse on November 14 while the meeting was in
progress. He did not intervene, but testified that he later re-
ceived a report that:
Les and Otis took over the meeting and . . . nobody
else could get a word in edgewise. And they told
[them] that . . . I told them to hold a meeting and if
they wouldn’t that they were history.
Thus, from Cognetti’s perspective, Otis Woods and Les
McClure not only had lied, but had crippled his effort to gain
the trust of the warehouse employees, thus, exacerbating his
alleged credibility problem. Yet, there was no effort to come
to terms with Woods or McClure. Also peculiar, is the fact
that he made no effort to disavow the allegations against him
to the complement as a whole, either at an employee meeting
or through literature. From my impression of Cognetti, he
would not have shied away from confrontational stance con-
cerning the remarks attributed to him, unless he knew them
to be accurate.
Apart from these affronts, Woods and McClure published
their allegations against Cognetti to the entire work force at
an unauthorized meeting during working time. Cognetti in-
sisted that he did not want Woods to conduct a meeting and,
in this connection, he swore that: ‘‘I did not want employee
meetings going on in our facility.’’ To that end, Cognetti tes-
tified that he had instructed Warehouse Supervisor David
McClure not to allow such meetings on the premises. He
does not indicate that he ever reminded, discussed, or other-
wise had taken action against his warehouse supervisor for
this apparent disregard of a prior instruction.61 He also took
no action against Woods or Les McClure for their appropria-
tion of company time to portray him falsely.
In sum, not only did Cognetti decline to follow up or seek
explanation from Woods or McClure, or request that they
correct the record by telling employees the truth, but they
would be rewarded with assurances of job security. Thus, the
only employeewide effort to quell the fall out appeared in the
November 19 letter,62 discussed infra. In passing it is noted
that there is no evidence that Cognetti, or any other manage-
ment official informed employees that Woods and Les
McClure had lied about what transpired during the Novem-
ber 13 meetings.63
As for the basic issues of credibility, for obvious reasons,
Les McClure and Otis Woods were believed over Cognetti
as to what transpired at their separate meetings on November
13.64 This was a desperate attempt to break the back of the
campaign by giving the suspected ringleaders a choice be-
tween campaigning for a ‘‘no vote’’ or their jobs. I cannot
accept that either employee—especially, Les McClure, whose
20 years of employment had been threatened under any
version—would concoct an idea or run the hazards of partici-
pating in a scheme to conduct a meeting on work time
(which no one from management ever seemed to question)
in order to bear false witness against the highest operating
official in the Company. Accordingly, I find that the Re-
spondent violated Section 8(a)(1) of the Act when he in-
structed Otis Woods and Les McClure to campaign for a
‘‘no’’ vote,65 and by threatening discharge if the refused. I
further conclude that the Respondent violated Section 8(a)(1)
of the Act by Cognetti’s instruction that they not attend
union meetings, and by his declaration that he would know
if they did and they would be discharged in consequence.
311KINNEY DRUGS
66 Milgo Industrial, 203 NLRB 1196, 1198 fn. 14 and 15 (1973),
is distinguishable since there the alleged agent acted consistent with
the employer’s ‘‘generalized instructions. Hall Industries, 293 NLRB
85 (1989), cited by the Charging Party, at fn. 1, is actually consistent
and supports the finding that neither Woods nor McClure said any-
thing ‘‘that other employees would reasonably believe . . . allied
[them] with management.’’
67 McClure and Woods prepared and signed a joint statement that
day that indicated as follows:
Ron Fields talked with both Les McClure & Otis Woods (1 to
1) said that their jobs would be protected even if the Union got
voted out. He said he was talking for Rich Cognetti. [G.C. Exh.
12.]
The above statement signed by McClure on November 14 does not
mention this promise. However, both signed, and there is no evi-
dence that such a promise was made to Woods. The statement obvi-
ously was limited to remarks separately, but commonly addressed to
both.
68 Later, in December, McClure was offered a supervisory position
which he declined.
69 He admittedly had come to this conclusion without checking
with Cognetti.
70 Field did not seem to perceive of any paradox in his providing
aid and comfort to this individual who, as far as he knew, had just
broadcast a false accounting of statements made by Cognetti. Also
noteworthy is the fact that Field testified to an earlier conversation
with McClure in which the latter indicated that he would be fired
no matter what happened at the election. Field assured him then that
he would not be fired.
71 When questioned as to this phrase by the General Counsel on
cross-examination, Field denied having uttered it. The slip was major
but not uncommon, for all of the Respondent’s witnessed seemed to
‘‘circle the wagons’’ when asked about their interest in discovering
‘‘where did this come from.’’ It was my impression that they knew
just as did Les McClure and Otis Wood.
72 The sign-in sheet pertaining to the November 7 union meeting
contained 27 signatures. G.C. Exh. 8(a).
At the same time, it is clear that the November 14 meeting
was conducted pursuant to Cognetti’s direction. However,
there is no evidence that he authorized Woods or McClure
to inform coworkers that the meeting ‘‘was being held pursu-
ant to instructions . . . that they campaign against the Union
or . . . be fired . . . .’’ Thus, they were not acting on behalf
of the Respondent when they uttered these words. On their
face, their respective messages had overtones of rebellion
and dispelled any realistic assumption on the part of any em-
ployee that either was acting on direction of Cognetti. Juni-
per Industries, 311 NLRB 109 (1993); Technodent Corp.,
294 NLRB 924 (1989). It is concluded that neither was an
agent whose conduct might be deemed binding on the Re-
spondent.66 However, for purposes of remedy, the scope of
Cognetti’s unfair labor practices are magnified by what oc-
curred at the November 14 meeting, particularly, since the
chain of communication was set in motion by Cognetti’s un-
fair labor practices.
5. The alleged promise of a promotion
The complaint alleges that the Respondent violated
Section 8(a)(1) by Ron Field’s promise to promote em-
ployees if the Union did not win the election. McClure
testified in support of this allegation. He relates that on
November 14, in the course of a discussion with Field
concerning his encounter with Cognetti the previous
day, he suggested that Cognetti apologize to himself
and the other employees. Field conceded that the Com-
pany had done a few things the past few weeks that
‘‘weren’t quite right,’’ but that things would get better.
Field stated that he would suggest that Cognetti apolo-
gize. Of immediate interest here is McClure’s assertion
that Field went on to state that ‘‘if the union did get
voted out, he would promise me a salary position with
the Company.’’67 McClure expressed disinterest.68
Field admitted to separate conversations with Les McClure
and Otis Woods on November 14, after hearing reports that
they had stated that they were going to be fired. He sought
them out to make it ‘‘perfectly clear’’ that this was ‘‘un-
true.’’69 He first met with McClure stating that there was no
way he was going to be fired,70 and ‘‘where did this come
from.’’71 Field denied that there was any mention of a pos-
sible promotion. I believed McClure over Field. The latter’s
testimony fits within a pattern of implausible testimony by
Respondent’s officials as to their own reactions during the
aftermath of the November 14 meeting. At the same time,
Les McClure, had everything to lose, and nothing tangible to
gain by testifying against his superiors. Based on his credited
testimony, I find that the Respondent violated Section 8(a)(1)
by suggesting that he would be promoted if the Union were
defeated in the impending election.
6. The November 8 antiunion meeting
The complaint alleges that the Respondent, through
Cognetti, created the impression of surveillance on various
occasions, including November 8. A union meeting was held
on November 7. According to Thomas McFerran, at an
antiunion meeting conducted in the warehouse a few days
later, Cognetti announced to employees that he knew that the
aforementioned meeting sponsored by the Union was at-
tended by 27 employees.72 Cognetti denied that he ever
made such a statement to an individual or at a meeting. In
this instance he is credited. If in fact Cognetti had made such
a remark, it would have astounded many of the 27 employ-
ees that attended that meeting. Yet, the General Counsel
failed to exact corroborative testimony from any of the sev-
eral witnesses who ostensibly signed the attendance sheet at
that time, and who presumably, along with McFerran, at-
tended the company meeting of November 8. In this light,
although Cognetti was a generally unfavorable witness, in
this instance it is more likely that McFerran was mistaken.
The alleged impression of surveillance allegation is unsub-
stantiated by credible proof and shall be dismissed.
7. The November 19 guarantees
The complaint alleges that the Respondent violated Section
8(a)(1) on November 19, when Cognetti, both orally and in
writing, implied to employees that union supporters would be
terminated ‘‘if the Union won the election.’’
Cognetti testified that after learning of the employee meet-
ing on the morning of November 14, he instructed Charles
Owens, vice president of distribution and pharmacy, Steve
Hayden, vice president of management information, Ed
Easten, vice president of purchasing, Wayne Frenyea, vice
president of finance, and Ron Field to go to the warehouse
and back Cognetti up by informing employees that he was
312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
73 Previously, I have found that that this did not in fact occur. As
indicated not one of the named individuals offered testimony that
they were enlisted in any such effort. Two, Field and Frenyea, of-
fered extensive testimony as to their own alleged personal involve-
ment in the fallout, but did not suggest that they were acting at
Cognetti’s behest. Field specifically denied that he even had spoken
to the latter. It is mentioned because, if Cognetti were worthy of be-
lief, there would have been no need to reopen the issue on Novem-
ber 19.
74 G.C. Exh. 9.
75 Koerick testified that after the meeting, he approached Cognetti
in the presence of a coworker, Carl Burns, and asked that he have
his name included on the memo, but the request was denied, with
reference to Koerick’s reputation as a good worker.
76 In his account of the events on November 13, Cognetti claims
that he believed that Les McClure offered no threat as an organizer,
since he would not have the same influence as Otis Woods. Yet,
Woods went unmentioned in the above letter. Les McClure, for un-
explained reasons, became the focus of attention less than a week
later on November 19. Woods did testify that ‘‘one or two days’’
after the November 13 meeting with Cognetti, Ron Fields told him
that his job would be secure. However, Fields did so in McClure’s
case as well. There is no evidence that Cognetti ever provided
Woods any similar assurance. Is it possible that Cognetti wished to
avoid further outrage by the supporters of Otis Woods at time when
he was publishing a highly conditional guarantee?
77 Not a single witness was called to confirm that an unqualified
statement of this breadth was made during the meeting.
78 This is consistent with his testimony that he had repeatedly
promised that there would be no discharges, but that employees ex-
pressed disbelief, referring to the ‘‘hit list . . . and that if the union
were defeated McClure and the other organizers would be fired.’’
79 While I would not kill time seeking authority for this clearcut
unfair labor practice, counsel for the Charging Party saw fit to aid
the effort by reference to Jeannie-O Foods, 301 NLRB 305 (1991),
and Bay Metal Cabinets, 302 NLRB 152 (1991). In neither instance
was I extended the courtesy of a spot site. Because the fact pattern
was highly unusual, out of curiosity, I elected to review these cita-
tions. After reviewing all 36 pages of Jeannie-O Foods, and the
mere 32 pages of Bay Metal Cabinets, I was rewarded with nothing
not going to terminate anyone. According to Cognetti, all re-
ported back that the mission had been accomplished.73
Yet, the meeting of November 19 was described by
Cognetti as another attempt to quell the hit-list problem. Ac-
cording to Koerick, Cognetti stated that he had heard that
McClure was to be fired if the Union was voted in. He then
read a memorandum to the assembled employees which stat-
ed as follows:
During the past week, I was advised that a number
of our employees felt that they should vote for the
Teamsters Union because it was feared that the Com-
pany would discharge Les McClure, and other employ-
ees who were the principal union organizers, if the
union loses the election this Friday. I want to assure
you that will not happen. Beyond that, I am prepared
to give you a written guarantee to that effect.
Accordingly, Kinney Drugs, Inc. guarantees that, as
long as LES MCCLURE and the other employees who
were the principal union organizers perform their job in
a reasonably satisfactory manner, the Company will
continue their employment as warehouse employees of
this Company and will not take any steps to cause a
termination of the employment relationship. This guar-
antee may be enforced by a New York court having ju-
risdiction over the parties.
This guarantee applies only to the situation where
the Teamsters Union loses the November 22, 1991 elec-
tion and is not thereafter certified as the collective bar-
gaining representative. Also, because the Company can-
not guarantee lifetime employment, this guarantee will
be limited to a three year duration, and will also not
apply in the event the Company ceases warehousing
operations in New York State.74
Copies were then given to Koerick for delivery to McClure,
who was on vacation at the time, and to Union Representa-
tive Matthews.75 Those attending were given a copy. In addi-
tion, a copy of the memo was posted by the Respondent on
the bulletin board were it remained through the election.
Cognetti claims that he took this step ‘‘to convince them
that the hit list was not true and that I did not intend to fire
Les McClure if the company won the election.’’76 He denied
that his taking this step had anything to do with the election
to be held on November 22, only 3 days later. He claims that
he delivered a speech on that occasion that he read ‘‘ver-
batim,’’ and that he did not deviate from that. He also admits
that read all or segments of the above memorandum.
Cognetti also insists that employees were told during that
meeting that no one was going to be fired.77 Although his
testimony is susceptible to varying interpretations, I reject
Cognetti’s uncorroborated testimony that he ever, formally or
informally, advised the voting group, individually or as a
whole, that union organizers would not be discharged if the
Union were designated.78
The November 19 memorandum was drafted as if he in-
tended to keep the fear alive.
At the same time, it is considered unlikely, on this record,
or as a generality, that employees would fear reprisals
against organizers only ‘‘if the union were defeated.’’ In fact,
Cognetti, in his November 13 meetings with Woods and
McClure and instructions to both had planted the seed for
general understanding within the voting group that both
would be terminated if they did not join the effort to defeat
the Union. Cognetti knew that Otis Woods and Les McClure
on November 14 repeated his directive to coworkers, thus,
giving rise to a very real concern that they would be fired
if they failed, and the Union were designated.
The November 19 document would have been taken by
employees as the best evidence of Cognetti’s intentions. Yet,
it did not address the predictable concerns generated by his
conduct of November 13, which he had not previously re-
canted, retracted, denied, or even addressed in any prior
communication with the work force as a whole or individ-
ually. The limited assurance that union supporters would be
spared if the Union were defeated, in this context, by nega-
tive implication, reenforced the likelihood, in the eyes of em-
ployees, that the Respondent would take retaliatory action if
the Union were designated. Accordingly, the November 19
message was drafted in terms likely to perpetuate and give
continuing vitality to the previously communicated threat that
McClure and other ‘‘union supporters’’ were endangered by
the possibility of a union victory. This attempt to capitalize
upon and draw additional coercive gain from his unlawful
conduct of November 13, was nothing short of a cynical act
of manipulation and a clear violation of Section 8(a)(1).79
313KINNEY DRUGS
that would in the most remote sense resemble the matter in question
here.
80 The allegations are based on testimony of incumbent employees.
The Respondent provides a number of reasons, all nonmeritorious,
for discrediting them, including that fact that there often was no cor-
roboration. This was taken by me as more likely a function of
McClure’s preference for addressing them alone, than as a signal
that each separately manufactured evidence against their superior. If
in this a sector of the case, there was a suspicious pattern, it would
lie in McClure’s repetitive testimony that union matters were always
raised by employees, who were never questioned about their union
sentiment, because it was always volunteered.
81 Timothy Alguire testified that on November 13, he observed
Dave McClure conversing with Bush. He could not hear what was
said. However, immediately thereafter, Bush allegedly informed
Alguire, ‘‘we may have a big problem,’’ adding that McClure told
him that ‘‘Kinney’s would lock the door before a Union would be
allowed to come in.’’ Although this testimony is hearsay as to what
was stated by McClure, it is primary evidence that Bush’s report of
what was said squares with what Richards claims he overheard and,
in that limited regard, is corroborative and probative to the extent
that it supports the probability of Richards’ account.
82 Bush was called as a witness for the General Counsel, but af-
forded no testimony which tended to substantiate this allegation. His
testimony concerning conversations with McClure was limited to a
single incident in which he simply informed McClure that he was
opposed to the Union. Bush was an incumbent employee, who
though readily available to the Respondent, was not called by the
defense either to corroborate McClure, or to refute the separate expe-
riences attested to by Alguire and Richards. Bush professed to be
an antiunion employee, whose performance at the hearing hardly
suggested that he was particularly friendly toward the General Coun-
sel. In this light, it is understandable that another direct witness to
the alleged conversation was selected to substantiate this allegation.
Had the Respondent called Bush, and had he offered testimony sup-
portive of Dave McClure, it is not beyond possibility that my views
in this regard might have been quite different.
8. Conduct attributed to Dave McClure
Several 8(a)(1) allegations are attributed to Dave McClure,
the distribution center supervisor. McClure claims that after
learning in September that a union campaign was in
progress, Cognetti directed him not to be involved with the
Union, stating ‘‘my role was . . . to run the warehouse on
a daily basis and not to worry about the union issues. His
own testimony, and that of several incumbent employees,
however, indicates that McClure was unable to steer a steady
course in this regard. In fact, he admits to three conversa-
tions with three different employees concerning the Union.
He claims that in each instance the subject was initiated by
the employee, yet, despite Cognetti’s directive, it is clear that
he at no time attempted to cut off these conversations.80
The complaint alleges that the Respondent violated Section
8(a)(1) when Dave McClure threatened that employees
would be locked out and lose employment if the Union were
designated. The allegation stems from a one-on-one con-
versation between McClure and Donald Bush. Danny Rich-
ards testified that he observed the conversation between Bush
and McClure from a distance of about 15 to 20 feet. He
could not be sure, but believed that McClure was alert to his
presence. Richards claims to have overheard McClure tell
Bush:
[I]f we went Union . . . they were going to hire Walsh
Trucking to bring the freight directly to the store. . . .
[I]t would be for two percent over cost and it would
be cheaper than us shipping it out from the warehouse.
And . . . as far as the warehouse goes, it would be his-
tory.81
McClure admitted to a conversation on request of Bush on
November 13, after 1 pm. Bush stated that he had heard that
‘‘if the union was not voted in, that Les McClure and Otis
woods would lose their job.’’ McClure said that he just ar-
rived and had heard nothing like this. Bush asked if there
was a possibility that the warehouse might close. McClure
claims that he replied, ‘‘Not that I know of.’’ Bush asked if
the warehouse would close in the event of a strike. McClure
stated he did not know and could not give an answer, but
that if it did occur, the stores would have to be serviced by
an outside vendor. He denied that any threats were made to
Bush. While I was not impressed with McClure, suspicion
was aroused by his insistence that Alguire and Richards were
not in the area, and that if they were, he would have ob-
served them. This raises the question of how Richards would
have learned of a version closely resembling that of
McClure. I doubt that Bush would have provided a twisted
version of his remarks. I credit Richards, an incumbent em-
ployee, who would have no reason to infuriate the highest
ranking day-to-day, hour-by-hour representative of manage-
ment in the distribution center by implicating him falsely in
unlawful conduct.82 The Respondent violated Section 8(a)(1)
by Dave McClure’s threats that if the Union were designated
that trucking would be contracted out and the warehouse
closed.
The complaint also alleges that Dave McClure coercively
interrogated employees on various occasions in violation of
Section 8(a)(1). Thus, Alguire testified to a conversation in
McClure’s office on November 8. He claims that after they
discussed business procedures, as Alguire was leaving,
McClure asked how he felt about the Union. Alguire asked
if he should close the door, and McClure indicated that he
do so. Alguire then responded by stating that he had no ven-
detta against Kinney’s, Cognetti, or McClure, but that he was
for the Union because of the need for job security. McClure
opined that it was better to approach problems ‘‘one-on-
one,’’ rather than to have to deal through a third party.
McClure testified that Alguire routinely came into his of-
fice to secure cigarette stamps that were stored there for se-
curity reasons. He states that, on the occasion in question,
after simply asking Alguire ‘‘how things are going,’’ the lat-
ter launched an assault upon the Company’s practice of pay-
ing half time for sick leave, volunteering that he was leaning
toward the Union because of dissatisfaction with this ar-
rangement. McClure avers that he simply stated that he did
not think that the Union could correct this, but that if it did,
Alguire might risk losing other benefits. He claims that union
sentiment was volunteered and he denies asking how Alguire
felt about it.
Here again Alguire was believed over McClure. In this re-
gard, Alguire admits that he was prounion, and he did not
make a secret of his feeling in that regard. He adds that he
did mention to coworkers that he was for the Union because
of a concern for job security. While he denies having made
any similar disclosure to any management representative
prior to his November 8 conversation with McClure, he testi-
314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
83 McClure also denied any reference to a lockout. In this instance,
it would be prejudicial to accept the shotgun testimony of Burns, for
his confessed lack of recollection arouses critical doubt as to wheth-
er remarks attributed to McClure in this regard were in a context
protected by Sec. 8(c). In this light, McClure is given benefit of the
doubt, and I credit his denial that there was any mention of a lock-
out.
84 McClure admits that Burns did not express a lack of knowledge
concerning existing benefits, and hence, if McClure is to be be-
lieved, his gesture in this regard was purely officious.
85 Unlike Cognetti, who had been versed in the mechanics of col-
lective bargaining as his writings demonstrate, there is no reason to
assume that Dave McClure had been schooled similarly. This is es-
pecially so in light of his testimony that he had been instructed not
to discuss the Union. At the same time, from my impression of him,
it is entirely likely that McClure would have interpreted and passed
on his understanding of such complex rhetoric in the same fashion
as the rank and file employees that appeared as witnesses in this
case.
86 Richards also testified to conversations with McClure on several
occasions after union meetings. In them, Richards would be asked
which way the people were siding, for or against the Union.
87 Richards’ initial testimony reflects that this occurred on Novem-
ber 11. This was taken as in error, for, there is no evidence of any
inappropriate conduct toward Les and Otis until November 13. Later,
on cross-examination, a more logical, presumably accurate reference
to this date was made, placing it on November 15.
fied that he would assume, however, that the Company
would have known that he was for the Union.
The test articulated in Rossmore House, 269 NLRB 1176
(1984), and Sunnyvale Medical Center, 277 NLRB 1217
(1985), does not license employers to personalize an overall
pattern of unlawful intimidation by intruding on privately
held sentiment of individual employees. In such a context,
the law allows employees to keep their views from the ears
and eyes of management, without intrusion of supervision,
particularly one of high rank, thus avoiding concern on their
part that a truthful response could lead to recrimination. The
scenario depicted by Alguire, considering the job security
issues that would later emerge pursuant to the Respondent’s
unlawful threats, reflected an inherent coercive tendency, and
substantiated interrogation proscribed by Section 8(a)(1). The
Respondent violated the Act based on Dave McClure’s con-
duct in this regard.
Another series of independent 8(a)(1) allegations are
founded upon testimony of Carl Burns, a picker, who at the
time was supervised by McClure. Burns testified that on No-
vember 11 he participated in a prolonged conversation with
McClure in which he was questioned concerning his position
on the Union. Burns avers that he replied by indicating that
he had not made up his mind. McClure then allegedly went
on to state that if the Union came in, employees could lose
health insurance, sick time, vacation time, retirement, bo-
nuses, and their jobs, including his own. McClure then
probed Burns as to what the Union could do for employees.
Burns pointed to improved job security and representation.
McClure replied that if they struck, the warehouse would not
even be slowed because nonunion personnel would be hired
to fill the void. Burns also recalled that McClure mentioned
that employees could be locked out, but he could not recall
if it was in that conversation.83 Burns conceded to a limited
recollection of what was said, and could not recall the frame-
work or overall context of the remarks he imputes to
McClure. He stated that he recalled only what he thought
what was important.
McClure testified that, in making his rounds, he asked
Burns how things were going, only to find that the latter was
‘‘quite upset.’’ Burns explained that he felt uncomfortable
because ‘‘tensions are really high in the warehouse right now
with the union issue.’’ McClure did not agree, but because
Burns was concerned about his benefits, he explained those
presently in effect; he denied saying anything that would
have suggested that those benefits could be lost. He denied
stating that Kinney benefits were better than those of the
Union. McClure insists that he simply outlined the Kinney
benefits because Burns’ basic concern was that if he would
lose those benefits, what would the Union replace them
with.84 He also denied reference to a possible strike, or that
employees might lose their jobs if the union were designated.
Basically, McClure’s account of the benefit discussion
made made less sense than that of Burns. On the issues of
interrogation, and loss of benefits and jobs, I believed this
incumbent employee, who lacked any apparent incentive to
falsely implicate his superior in direct, unambiguous forms of
unlawful conduct, even though his capacity for recollection
in other areas was a bit frail.85 On this basis, I find that the
Respondent violated Section 8(a)(1) on the basis of Dave
McClure’s coercive interrogation of Burns, as well as his ex-
pression that designation of the Union would occasion a loss
of benefits and a loss of jobs.
Danny Richards testified that on November 15, at about
10:30 a.m., McClure approached him, and inquired as to
Richards’ opinion on the Union.86 The latter replied that he
did not know too much about it, but that what happened to
Les McClure and Otis Woods was unfair.87 He added that
he just hoped he had a job after all this ended, although he
believed that the employees should be able to make their
own choice without any pressure. McClure then stated that
Richards would retain his job if he voted ‘‘no,’’ but if he
voted ‘‘yes’’ they all could lose their jobs.
McClure denied ever discussing the Union with Richards.
Obviously, Dave McClure was not regarded as a trustworthy
witness. Here again, I did not believe that the incident was
manufactured by this incumbent employee. Based on Rich-
ards credited account, I find that the Respondent violated
Section 8(a)(1) by the questioning of Richards as to his
union sentiment, and by his personal and general threat of
job loss if the Union were selected.
Randy House, another of Dave McClure’s subordinates,
testified that as he was working on November 15, the latter
approached, asking what he thought about the ‘‘union deal.’’
House replied that things are ‘‘getting pretty nasty.’’
McClure allegedly said, ‘‘if the Union went through . . .
things would get a lot more nastier.’’ McClure claims that,
as in other cases, he simply approached House asking, ‘‘how
things were going.’’ House allegedly responded as if he did
not wish to talk with McClure, so according to the latter, ‘‘I
basically left him alone.’’ House is credited. His testimony
is consistent with a pattern of conduct attributed to the ware-
house supervisor, by other, then employed members of his
staff, who had no reason to endanger their relationship with
the boss through false testimony. Based upon House’s cred-
ited testimony, I find that the Respondent violated Section
8(a)(1) when Dave McClure questioned him concerning his
315KINNEY DRUGS
88 Shelby Rouse, Tom Langtry, Amy Jenkins, and Chad Fishel.
89 Customarily, the Respondent hires summer help, but normally
only two or three students are involved.
90 Cognetti’s predecessor, John Burgess approved the hiring of the
additional summer help, while Cognetti himself approved the hiring
of the challenged voters. Cognetti testified that he was reluctant to
do so, but that he gave his okay based on the fact that they would
be ‘‘temporary,’’ and employed only until the January 30, 1992
completion date. He also claims that he directed that they be hired
at the minimum wage, a departure from practice, and be given no
raises or benefits. However, the Respondent included them in its
campaign under conditions suggesting that there were no clearcut an-
swers to their status. During the meetings with small groups of em-
ployees between November 11 and 14, most if not all of these em-
ployees were ‘‘invited.’’ In fact, though the Respondent was pressed
for time because of the unanticipated length of the meetings, a sepa-
rate session was scheduled for Fleming, Ormasen, and Fairbanks.
Cognetti explained that the employees were included because it was
felt ‘‘we should listen to their concerns as we did to anyone else.’’
Although the Respondent’s counsel sought to establish that topics
other than the ‘‘union campaign’’ were discussed, it is clear that the
Union stirred management’s interest in these matters, and to cure the
lack of communication believed by the Respondent to have given
impetus to the organization campaign.
attitude about the Union, and by declaring that unionization
would prove detrimental.
C. The Postelection Issues (Case 3–RC–9808)
1. The objections
a. By the Employer
A single objection filed by the Employer remains for con-
sideration. Thus, in Objection 1, it complains of misconduct
in the form of representations, during the critical preelection
period, by union agents that Les McClure, and other prin-
cipal organizers would be fired if the Union lost the election.
The objection is unsubstantiated. There is no evidence that
any union agent contrived or planted such a rumor in the
plant. It is founded on expressions by rank-and-file employ-
ees, who were not shown to be agents of the petitioning
union. Their remarks of support for Otis Woods and Les
McClure and concern that union representation was needed
to protected these long-term employees took place during
and after the November 14 meeting held pursuant to Richard
Cognetti’s direction. The reaction within the work force to
the threats made to Otis Wood and Les McClure the day be-
fore was a foreseeable and perfectly legitimate response to
the unlawful conduct of the Respondent’s president. The Em-
ployer’s contention that the election should be invalidated on
this basis is reminiscent of a time-honored legal cliche,
namely, that of the unfortunate young man on trial for the
murder of his parents, who pleas for ‘‘mercy’’ on the ground
that he is an ‘‘orphan.’’ Employer Objection 2 is overruled.
b. By the Union
The petitioning Union’s Objections 2 (threats of dis-
charge), 4 (coercive interrogation), 7 (remedied grievances),
8 (promotions), 9 (threatened discharge for not campaigning
against the Union), 10 (creating the impression of surveil-
lance), 11 (threatened closure), and 12 (threatened loss of
benefits), are sustained to the extent summarized in paren-
thesis. In these particulars, all are coextensive with specific
unfair labor practices found herein, all of which occurred
during the critical preelection period. Moreover, all other
8(a)(1) violations found herein, having been uncovered dur-
ing the investigation of the aforesaid timely objections, as a
matter of Board policy, furnish independent grounds for set-
ting the election aside. Accordingly, ‘‘catchall’’ Objection 13
is also sustained. For reasons heretofore stated, Objections 3
(threats during group meetings), 5 (threatened lockout), and
6 (promised better wages, benefits and working conditions),
as particularized, do not correspond with conduct found un-
lawful herein and are overruled.
Based on the foregoing, it shall be recommended that in
the event any final tally fails to disclose that a majority of
the valid ballots have been case for union representation, the
election conducted in Case 3–RC–9808 shall be set aside.
2. The challenged ballots
a. The alleged temporary employees
The Board challenged the ballots of Diana Fairbanks,
Paula Fleming, James McCrea, Andrew Netto, Carol
Ormasen, and Sheila Wollman, because their names did not
appear on the eligibility list. The Respondent contends that
they were ineligible as within the unit’s express exclusion of
‘‘temporary employees.’’ The petitioning Union contends
that all are eligible since hired and employed during the eli-
gibility period as ‘‘regular part-time employees.’’
There is no doubt that they were hired pursuant to in-
creased labor demands that have continued to the instant
hearing, and whose abatement has not been defined with any
precision. Thus, in 1991, pursuant to a contract with I.B.M.,
the warehousing operation was being placed on a computer-
ized system that would enable accommodation of eight addi-
tional stores without an increase in manpower. The new op-
eration initially was scheduled to go on-line on September
16. In the interim, during the installation stages, there was
an increased need for labor in the warehouse. David McClure
testified that, during the spring, he informed Stan Layo, the
vice president with responsibility for the warehouse that ‘‘we
would need some temporary people to get us the manpower
to move the freight and move the merchandise and all of the
equipment in the interim. According to McClure, Layo ob-
tained approval from headquarters. The project opened with
the hiring of students Andrew Netto and Dennis Woods in
the spring of 1991. Four additional students were hired that
summer.88 They would provide ‘‘extra hands’’ in locating
and relocating product, hardware, fixtures, and equipment an-
cillary to the renovation effort.89 It was felt that need their
employment would end when they returned to school before
the scheduled completion date in September. However, the
I.B.M. project was delayed, and a new startup date was set
for January 30, 1992. Thus, when the students left in August,
the labor demands persisted, and it was decided to replace
them ‘‘to get us through to January’’ by the hiring of
Wollman, Fleming, Ormasen, Fairbanks, and McCrea, and by
retention of one of the students, Netto.90
According to the Respondent, labor demands intensified by
late October, with no apparent relief in sight. As indicated,
Rita Smith, Vicki Bice, and Sally Ayen, former part-time
employees, were were upgraded to full time on October 25.
(R. Exh. 6.) Cognetti explained that these employees were
working full-time hours, if not more, and advancement to
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
91 According to Cognetti, the 34th store was opened in late May
1991, and the 35th in late August, and the 36th in December. This
latter store is the equivalent of about three stores and the 34th is
equal to two.
92 In addition, Netto testified that following his November layoff,
he returned to work in May 1992, but specifically was informed by
Dave McClure that his job would be temporary.
93 Cognetti testified that they received notification that this target
date would not be met, but he could not recall when this occurred.
94 Fleming testified, without contradiction, that, on January 30,
1992, she was informed by Dave McClure that she did not have the
Kinney attitude and that her services were no longer needed. The
stated ground would be more consistent with a termination for cause
than a reduced need, and hence would be more in line with
Cognetti’s explanation than that offered by Hayden. Netto testified
that he was laid off in November, after the election, and in May
1992, was rehired, but specifically informed by Dave McClure that
his job would be temporary.
95 This apparently was an inadvertent error, for the record shows
that they worked 24 hours weekly or more.
96 The Petitioner contends that ‘‘objective evidence’’ in the form
of their participation in discount benefits establishes that that these
employees were other than temporary. This factor has no persuasive
force. Pandick Press Midwest, 251 NLRB 473, 474 (1980). The Pe-
titioner attaches significance to the fact that the employee handbook
confers this benefit upon ‘‘part-time’’ employees. (C.P. Exh. 2, p.
18.) However, that document is of no aid to the inquiry, for it fails
to differentiate between temporary and regular part-time employees,
and hence on its face suggests that if both categories exist, both
would be eligible.
97 In addition, Steve Hayden, the Respondent’s vice president of
information management systems, testified that he maintained a run-
ning chronology of developments affecting the warehouse automa-
tion project, outlining both estimated thresholds and those actually
reached. R. Exh. 8. This document refers to the hiring and termi-
nation of ‘‘temporary help.’’ For unknown reasons it omits reference
to the January 1992 reclassification of ‘‘temporary’’ help to full time
status, and the October 25 conversion of three regular part-time em-
ployees to full-time status. Both were driven by the increased and
continuing stresses upon labor and man hours due to this ongoing
project. The document which was prepared and revised periodically
on a word processor does not have the traditional reliability of busi-
ness records that are are immutable in nature and integrated in a
business system that makes alteration less convenient than a stroke
of the pen or punch at the keyboard.
98 R. Exh. 4. Cognetti, while alert that changes in the computer
data could be made at any time, he was not in a position to testify
as to when the pertinent entry was made, or specifically, by whom.
He was merely able to verify that they were in the computer in late
December 1991.
full time was preferred over the hire of additional part-time
employees. He explained that the demand for labor contin-
ued, as two new stores, one extraordinarily large, had been
added,91 while promised labor savings due to the I.B.M.
project had not materialized.
Heavy demands on the work force continued right through
to the hearing. Thus, in another sector of the case, Cognetti
dramatically addressed this condition as follows:
[Y]ou have to realize that all through this project and
right up to today we’re working in some cases around
the clock, even seven days a week situation, tremen-
dous pressure, tremendous hours put in by these people,
heroic efforts by . . . these people to make this things
[sic] work.
I.B.M. still has not been able to complete the system. The
record does not reflect that a new target date had been set.
The Respondent does not present a consistent picture of
work demands existing at that time. Two challenged voters,
Netto and Fleming were terminated on January 30, 1992.
Steve Hayden, the Respondent’s vice president for informa-
tion systems, explained that these terminations were war-
ranted because:
We had cleaned up pretty much, we weren’t doing a lot
of extra things at that point. The merchandise had been
physically changed. The only thing remaining was the
testing, and we really didn’t need them anymore.
This of course, raises the question as to why the four remain-
ing challenged voters were retained.92 One becomes even
more curious when it is considered that, at that time, all four
were reclassified to ‘‘full-time, permanent positions.’’
Cognetti explained their ‘‘retention’’ as follows:
[W]e got to that target date or that deadline [January
30, 1992] , and I.B.M . . . had still not completed the
software. As a matter of fact, as we sit here today, the
project is still . . . under development, and we still
don’t have the software components that we need.93
The next step—their conversion to permanent status—was
explained by Cognetti as based on the following:
Like I say, the end was not in sight. We were . . .
working some of these part time employees full time,
overtime even, as well as some other part time people.
So we were getting further and further in the hole here.
We opened store thirty-four in the middle of the year
[1991]. We purchased . . . number thirty-five, in the
end of August [1991], and that was quite a high volume
store, probably equivalent to two . . . of our average
stores. So we, again, were getting further and further
behind in our service level to our stores was deterio-
rating rapidly.94
The Petitioner relies essentially on the fact that these em-
ployees, at times material, worked at least ‘‘four’’ hours95
weekly and hence were not ‘‘call-in.’’ This position misses
the point. The evidence does not disclose and there is no
contention that they are ineligible because casual employees.
Nor is it helpful that their work and supervision conformed
with that of permanent full-time employees.96
The Employer contends that the stipulated unit excludes
temporary employees, it excluded them from the eligibility
list on that basis, and, since internal personnel records dem-
onstrate that they were regarded by the Employer as tem-
porary, the challenges to their ballots must be sustained. In
support, Cognetti verified internal, computerized personnel
payroll records on Netto, Wollman, Fleming, Fairbanks, and
Ormason.97 Among other things, these documents charac-
terize each as a ‘‘temporary employee.’’98 Cognetti was un-
aware, and there is no evidence that the documents in ques-
tion were ever shown to the employees in question. He never
informed any of the six challenged voters that their employ-
ment would be for a fixed term.
There is no evidence that anyone from management did
so. The testimony of Ormasen, Fleming, Fairbanks, and
317KINNEY DRUGS
99 James McCrea did not testify, but the record strongly implies
and I infer that he was similarly situated to the other five challenged
voters.
100 Houston Building Service, 296 NLRB 808 fn. 2, 813–814
(1989).
101 I am alert to Cognetti’s speech of October 25, which mentioned
that ‘‘temporary employees’’ had been hired to alleviate conditions
caused by the I.B.M. project. ALJ Exh. 1(b). However, the speech
does not identify the individuals affected. Although one might infer
that the reference is to some or all the six challenged voters, the Re-
spondent did not sponsor that document, more importantly, does not
contend that this was the case. In this light, it would be hazardous
to disenfranchise these employees on this basis.
102 Netto was a student, but his expectancy at the time of the elec-
tion was indistinct from the other challenged employees and he too
was eligible. Shepard’s Uniform & Linen Supply Co., 274 NLRB
1423 (1985). By the same token, had the others been deemed tem-
porary, in the circumstances, the challenge to his ballot too would
be sustained on that ground.
103 See the testimony of Mark Kloss and Lee Griffith, both wit-
nesses for the Petitioner.
104 The regular drivers run routes 4 days each week.
105 It seems only natural that one having maintenance responsibil-
ities with a fleet of trucks would be involved in paper work that
would justify his access to a desk. I do not see this as in any sense
a sign of elevated status and certainly not an indication of super-
visory authority.
Wollman, together with that of Netto, commonly, and with-
out contradiction denies that this was the case.99 They were
interviewed by either Kirk McCaffrey, the warehouse fore-
man, or McKenzie, and testify, without contradiction that
during employment interviews, no information was provided
suggesting that their jobs would be limited in duration by de-
mands of the I.B.M. project or any other contingency. It is
credited. Also believed was unrefuted testimony by Fairbanks
and Wollman that McCaffery, at the time of hire, offered af-
firmative assurances of indefinite employment.
By way of analysis, it is important to emphasize that, in
this area, an employer’s unilateral determination merely
opens, but does not end the inquiry. Pursuant to established
Board policy, secretly held, uncommunicated limitations do
not affect an employee’s right of self-determination under the
Act.100 The law is sufficiently sophisticated in these matters
to require that ‘‘employment for a fixed term’’ be founded
on mutuality of understanding, rather than covert reservation
to which the employees are not privy. Cf. American Chain
Link Fence Co., 255 NLRB 692 (1981). Here, the status of
these precise individuals, all of whom worked regular hours,
performing duties identical to those of other than temporary
coworkers, was never the subject of agreement or overt dec-
laration.101 At no time, prior to the election, did the Em-
ployer ever see fit to inform the disputed employees that
their employment was anything short of indefinite. In these
circumstances, it is fair to conclude that the challenged vot-
ers possessed a reasonable expectancy of continued employ-
ment into the indefinite future. Accordingly, on that basis, I
overrule the challenges to the ballotes of Diana Fairbanks,
Paula Fleming, James McCrea, Andrew Netto,102 and Jim
McCrea.
b. George Erdman
The ballot of George Erdman was challenged by the Peti-
tioning Union on grounds that he is a supervisor with the
meaning of Section 2(11) of the Act.
At the times material to the election, Erdman was hourly
rated, having, basically, the same benefits as the drivers. At
the time, was refered to as the ‘‘transportation coordinator,’’
and was not entitled as a ‘‘foreman’’ or ‘‘supervisor.’’103 He
drove a truck, customarily 1 day per week,104 and on other
days, loaded and unloaded trucks. He was the principal in-
house mechanic, and, with assistance of another driver, per-
sonally maintained and performed routine repairs on the Em-
ployer’s vehicle. If beyond his capacity, Erdman would ar-
range for the work to be done by outside contractors.
Erdman did have a desk in the garage which he utilizes to
perform paperwork in connection with repairs and mainte-
nance and where truck assignments are posted.105
The Petitioner produced a number of witnesses in support
of the claim that Erdman is a supervisor. All had opinions
as to the authority he held, but, in the critical areas, there
was first hand knowledge. For example, Les McClure de-
scribed Erdman as ‘‘the lead person out there in the garage,’’
but added that that truckdrivers report to him and that he
schedules outgoing freight, while assigning runs to the driv-
ers. McClure admitted, however, that he, personally, had no
contacts in the garage.
Another witness for the Petitioner, Mark Closs, in the fall
of 1991, primarily worked in the warehouse, admitted that
Erdman never identified himself as a supervisor to Closs and
that he was unaware that Erdman had meted out any form
of discipline. He allegedly had given Closs permission to
leave early on his own where there were enough people on
hand to cover the work load. Closs claims that when he
worked in the warehouse, he reported to Erdman, rather than
a warehouse foreman, and that Erdman would direct ware-
house personnel in loading a truck if they were unaware of
correct procedures. He testified that Erdman, if not available,
would ‘‘probably’’ be replaced by Dave McClure. In the
event of a breakdown or accident, Erdman would notify
McClure and go to the scene. As to time off and vacation,
Closs testified that his requests would be directed first to Ed-
wards, and that Edwards had authority to ‘‘tell’’ him he
could take off. He admitted, however, that he did not know
that Edwards was not relaying a decision made at a higher
level. The same was true of the basic schedule; Edwards
would deliver it, but Closs had no firsthand knowledge that
he conceived it. He testified that Erdman, if not available,
would ‘‘probably’’ be replaced by Dave McClure. In the
event of a truck breakdown or accident, Erdman would no-
tify McClure and go to the scene.
Another truckdriver, Donald Matthews testified that
Erdman was his supervisor in the fall of 1991. He avers that
at the time Erdman was hourly paid, earning $1 more than
the drivers, but is presently salaried. Drivers run the same
schedules every week. Erdman would write down the stores
where stops were required in a particular driver’s area, a task
which would not appear to involve independent judgement.
According to Matthews, on holidays when a run must be
covered, the schedule would be posted by Erdman, but he
could not avow that Erdman would act on his own without
consulting any superior. Erdman would honor a request for
a day off on his own, if no one else is to be off that day.
He would insist that he alone be contacted if there is a
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
106 Cognetti disputed this claiming that assent by Dave McClure
is required.
107 Salaried employees are on a different vacation schedule and
also participate in a salary continuation program in the event of dis-
ability.
108 My conclusion in this respect is not altered by testimony of a
single employee suggesting that Erdman was involved in a pro-
motion. Thus, Mark Closs testified Erdman allegedly stated that
since Closs had been working part-time for ‘‘over a year,’’ he would
‘‘talk to’’ Dave McClure about reclassifying Closs to full-time. It is
apparent that the decision would be made by McClure, and that the
only apparent role in any evaluation was Erdman’s report of the
length of Closs employment, a purely objective fact.
breakdown in route. He has the authority to order parts.106
Matthews was unaware that Erdman ever had issued a writ-
ten warning, and he did not testify that Erdman ministered
any other form of disciplinary action.
Lee Griffith, also a truckdriver, testified that in at the time
of the election he was supervised by Dave McClure. He de-
scribed Erdman as a ‘‘truck driver coordinator’’ whose duties
included loading and maintaining trucks. Griffith testified
that his route has not changed in 2 or 3 years. Customarily,
he only drives 3 days per week, while doing maintenance
and loading the remaining 2 days. He assists Erdman in per-
forming maintenance on the entire fleet. He states that, at the
time of the election, when he needed time off, he asked
McClure. When he replaced another driver for vacation pur-
poses, the assignment probably was given by Erdman. Grif-
fith testified that Edwards also orders the ‘‘equipment’’
needed for in-house maintenance.
Cognetti testified that the drivers while on the road remain
responsible to Dave McClure, but while engaged in ware-
house operations, they answer to McClure’s subordinates,
Foremen Efton McCrea or Richard Perrigo. Internally,
McClure was carried in the salaried classification ‘‘ware-
house supervisor,’’ while McCrea and Perrigo were also sala-
ried,107 but classified as ‘‘warehouse foreman.’’ Erdman was
hourly rated and classified as a ‘‘truck driver.’’ The remain-
ing hourly classification in the bargaining unit is ‘‘warehouse
clerk.’’ Cognetti testified that Erdman could not exercise any
authority over the truck drivers without going through
McClure, McCrea, or Perrigo. He would only act as a con-
duit as to drivers whose odd hours limit their contacts with
acknowledged supervision. Drivers basically work fixed
routes which seldom change. According to Cognetti, any
changes would be directed by McClure or Stan Layo, the
vice president in charge of distribution and purchasing. They
log their own hours, which they turn in to McClure.
Dave McClure identified Erdman as a ‘‘one of our truck
drivers,’’ who does a lot of mechanic work. McClure claims
that he alone was the immediate supervisor of the drivers,
and that he initiated discussion concerning route assignments,
time off, and other supervisory issues, with his decisions re-
layed through Erdman to the drivers.
The witnesses offered by the Petitioner did not substantiate
that Erdman possessed authority to hire, fire, discipline, pro-
mote, or effectively to recommend such action, or direct with
employees with use of independent judgment.108 Moreover,
they did not persuade that they were in a position to know
whether his communication to them concerning their job du-
ties, granting time off, scheduling, or other secondary indicia
of supervisory status were founded upon Erdman’s inde-
pendent initiative or simply amounted to relayed directives
originating at higher levels. Accordingly, it is concluded that
there is no credible proof that Erdman, at times material, was
a statutory supervisor, and the challenge to his ballot is over-
ruled.
THE REMEDY
Conventional Redress
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Remedial Bargaining Order
1. The appropriate unit
The complaint alleges, the answer admits and I find that
the following employees constitute an appropriate unit for
purposes of collective-bargaining under Section 9(a) of the
Act:
All full-time and regular part-time truck drivers and
warehouse employees including plant clerical employ-
ees employed by the Respondent at its 29 East Main
Street and 520 East Main Street, Gouverneur, New
York warehouse facilities, but excluding office clerical
employees, professional employees, temporary employ-
ees, guards and supervisors as defined in the Act.
2. The demand for recognition
By letter dated September 25, Michael Matthews, a non-
employee organizer, wrote Richard A. Cognetti, the Re-
spondent’s president, claiming a majority, requesting recogni-
tion, and a immediate negotiations, while offering to prove
its representative status through a third-party card check.
(G.C. Exh. 6.)
Cognetti admittedly received the letter on September 26.
However, he was not sure as to the employees sought, and
therefore telephoned union headquarters that day, speaking to
Fred Carter, the Union’s president. Carter explained that the
representational claim related to ‘‘the warehouse employees
only.’’ According to Cognetti, when he asked if office cler-
ical employees were included, Carter stated that it did. In any
event, the Union clarified its position in writing by letter of
September 26, identifying the classifications sought as con-
sisting of the following: ‘‘Warehousemen, Stock Clerk, Pick-
er, Mail Person, Laborer, Warehouse Receiver, Return Clerk,
Stocker and Truck Driver.’’ (G.C. Exh. 7.)
The Respondent contends that Carter’s letter ‘‘did not
serve to clarify the unit description in a way that would
make the unit an appropriate one.’’ The claim is baldly stat-
ed and without explanation as to the nature of the problem.
The only perceptible discrepancy would arise from Carter’s
alleged comment on the phone to Cognetti, concerning the
placement of ‘‘office clericals.’’ This would not conform
precisely with the Union’s letter of September 26, for this
document would appear to claim plant clericals only. In any
event there is no variance of substance between the classi-
fications identified in the Union’s September 26 letter and
the unit to which the parties ultimately agreed and in which
319KINNEY DRUGS
109 On cross-examination, counsel for the Respondent elicited testi-
mony that Koerick’s prehearing affidavit made no mention of a bar-
gaining order.
110 Ormasen testified that she received her card, stating that it was
given to her by Les McClure, and returned to him upon execution;
there was no mention of any involvement on the part of Koerick.
The discrepancy, perhaps due to mistake, does not affect her own
designation, or that of any other card signer, all of whom were ap-
parently available to testify.
111 Cryderman, on cross-examination, testified that she ‘‘believed’’
that the only purpose of the card was to get an NLRB election, a
belief explained by her as based upon the fact that she was told: ‘‘if
we sign them, that we could possibly get a union in.’’ She did not
recall being told that the only purpose of the card would be to get
an NLRB election.
112 Woods, now a supervisor and the victim of extreme intimida-
tion during the campaign, asserted that he was told by an individual
whom he could not identify that a majority of the cards had already
been signed and that they were for an election. He added that some
one else who he could not identify told him that he was the seventh
to sign.
113 Bush testified that he signed after being informed that a major-
ity had done so. He adds that he would not have signed otherwise.
The source of the comment is unidentified.
114 Of the six employees challenged as temporary, only two signed
cards that have been produced in this record. Thus, at least facially,
the Petitioner-Charging Party would have been disadvantaged by this
ruling.
the election was conducted. Moreover, the Respondent offers
no authority tending to suggest that the appropriateness of
the ‘‘scope’’ of the unit would be influenced materially by
the placement of ‘‘office clericals.’’ The Union’s request of
September 26 demanded recognition and claimed majority
support in an appropriate unit, and their is no evidence that
this produced any confusion at any subsequent time.
3. The union’s majority
The record includes 24 duly authenticated, perfectly valid,
single-purpose authorization cards, signed by employees in
the appropriate unit between September 10 and October 1.
The cards include two executed by individuals within the
group of seven whose eligibility was contested in Case 3–
RC–9808. These documents on their face acknowledge a sin-
gle objective; namely, designation of the Union as exclusive
collective-bargaining representative.
Drew Koerick was the employee mentioned most promi-
nently on this record as having engaged in card solicitation.
In that process, he claims to have told coworkers to read the
booklet and the card, adding that the cards would be used
to get an election and if necessary to get a bargaining order
in court in the event of threats.109 He identified his own
card, and authenticated numerous others. Those identified by
him which were executed by eligible employees are listed
immediately below with indication as to whether the osten-
sible signer appeared and testified that they completed, dated,
and signed the document:
Name G.C. Exh. Date Confirmed bySigner
Drew Koerick 100 9/10 yes
Les McClure 101 9/10 yes
D. P. Richards 102 9/17 yes
Darcy Love 103 9/28
Tim Alguire 104 9/24 yes
Wendell Scott 105 9/18 yes
Sally Ayen 106 9/23
Judy Fishel 107 9/26
Carol Ormeson 108 9/24 yes110
Mae Cryderman 109 9/23 yes111
Rita Smith 110 9/23
Name G.C. Exh. Date Confirmed bySigner
Andrew Netto 111 10/4 yes
Otis Woods 112 9/23 yes112
Carl Closs 113 9/23 yes
M. D. Closs 114 9/23 yes
D. Matthews 115 9/23 yes
The following cards were introduced solely upon testi-
mony by the individual whose signature each bore:
Name G.C. Exh. Date
Michael Sudol 116 9/18
Leland Griffith 117 9/23
Carolee Hall 118 9/23
David Herhein 119 10/1
Donald Bush 120 9/23113
Randy Sibley 121 9/18
Thomas McFerran 122 9/19
Carl Burns 123 9/23
Randy House 124 9/19
The Respondent, while citing precedent for the broad, gen-
eral guidelines used in evaluating cards, does not isolate any
single card which should be invalidated, or precedent that
would support such a result in any particular case. Thus, no
basis is given for rejection of any card produced in evidence.
At the same time, I note that the fact that some employees
might have been told that the card was solicited for the pur-
pose of obtaining an election is a trueism which did not in-
validate or alter the unmistakable designation on the face of
the card. Moreover, the fact that Bush and Woods assert that
they signed because of a statement that a majority had al-
ready done so is also of no consequence, for such representa-
tions are within the range of ‘‘puffery’’ that solicitors are al-
lowed under Board precedent. Montgomery Ward & Co., 288
NLRB 126, 128–129 fn. 16 and 17 (1988). Moreover, state-
ments from unidentified sources within the voting group fur-
nish no basis for invalidating an otherwise legitimate des-
ignation.
The parties stipulate, that, apart from the seven challenged
ballots, the unit consists of 33 employees. Having overruled
all the challenges,114 it remains clear that as of October 9,
when the Respondent embarked upon its unlawful effort to
thwart organization, the Union possessed 25 duly executed,
valid, single-purpose authorization cards in a unit consisting
of 40 employees. Moreover, it is concluded that, on this
basis, the Union had, since September 24, represented a ma-
jority of the employees in the appropriate unit.
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. The obligation to bargain
The General Counsel appears to argue that a Gissel bar-
gaining order is warranted because of the ‘‘Hallmark’’ viola-
tions, their quantity, and the fact that in cases where the un-
fair labor practices ‘‘were much less serious and pervasive’’
the Board granted such relief. Little is offered in the way of
analysis by either proponent of the complaint.
In any event, the principal architect of the unlawful con-
duct in this case, was none other than Richard Cognetti, the
Respondent’s president and chief executive officer. He per-
sonally engaged in ‘‘direct, highly coercive, overt unfair
labor practices’’ in the interim between the Union’s acquisi-
tion of a majority on September 25 and the election of No-
vember 27. See, e.g., Ron Junkert, 308 NLRB 1135 (1992);
Foster Electric, 308 NLRB 1253 (1992); Q-1 Motor Express,
308 NLRB 1267 (1993). It was a dual strategy of ‘‘make
up’’ and ‘‘break up.’’
First, neglect of the warehouse employees was converted
to penetrating attention on the part of Cognetti, once the
Union appeared, with the latter taking personal command and
showing a sudden, now aggressive interest in their concerns,
offering that, without a union, the problems of employees
would be resolved. For any bewildered as to his intent,
Cognetti appealed expressly for additional time to ‘‘turn
things around,’’ a promise given added credulity by
changes—most being impecunious—but all symbolic of
Cognetti’s will to respond favorably to employee problems.
The scenario is materially indistinct from that addressed in
Teledyne Dental Products Corp., 210 NLRB 435, 435–436
(1974):
Obviously such conduct must, of necessity, have a
strong coercive effect on the employees’ freedom of
choice, serving as it does to eliminate, by unlawful
means and tactics, the very reason for the union’s exist-
ence. We can conceive of no more pernicious conduct
than that which is calculated to undermine the Union
and dissipate its majority while refusing to bargain.
Neither is there any conduct which could constitute a
greater impairment of employees’ basic Section 7 rights
under our Act, especially since such conduct by its very
nature has a long-lasting effect on the employees’ free-
dom of choice in selecting or rejecting a bargaining
representative.
The futility of designing effective redress to combat a broad,
nonspecific implied promise of benefits was addressed in
Astro Printing Services, supra, 300 NLRB at 1029:
The [r]espondent’s failure to grant the benefits . . . did
not minimize the impact of its unlawful. It is more like-
ly that this failure would reenforce the lingering effects
of the [r]espondent’s unlawful conduct by giving em-
ployees the impression that as long as the Union’s
shadow remained . . . the employees would not be able
to secure the benefits which the [r]espondent had stated
they could get without the [u]nion.
Earlier, the same point was made in Arrow Molded Plastics,
243 NLRB 1211, 1220 (1979), as follows:
[E]mployees could not in the future, even with the aid
of conventional Board remedies, register their choice
uninfluenced by the lingering effects of . . . a form of
manipulation whereby employee expectation was
aroused and tantalized by the undefined limits of their
[e]mployer’s newly manifested responsiveness. The
‘‘greens’’ had been dangled, with the nature of the
‘‘carrot’’ which lay obscured beneath to be revealed
only upon the [u]nion’sd demise. It is to be anticipated
that the uncertainty and temptation inspired by the
[R]espondent’s entire course of conduct would lead
their unlawfully stirred curiosity in any rerun election.
The second phase of the illegal strategy transcended the
unspoken assurance that grievances would be resolved with-
out need for a union. Mr. Justice Harlan, on behalf of the
Supreme Court in NLRB v. Exchange Parts Co., 375 NLRB
405, 409 (1964), referred to the ‘‘fist inside a velvet glove’’
as a metaphor to explain the dangers inherent in well-timed
benefit grants. In this campaign, the blow was not always
softened by ‘‘velvet.’’ The effort to break the Union was
punctuated by many ‘‘Hallmark’’ violations, with specter of
job loss signaled in a variety of forms, including subcon-
tracting, discharge, and closure. Specifically, it is difficult to
imagine that employees affected will soon forget that the
president of the Company had asked that they not attend
union meetings, and in the case of two employees, threatened
discharge if they did.
Indeed, Otis Woods and Les McClure, each an employee
with many years of service, were victimized by the most se-
rious and egregious misconduct. Cognetti’s attempt to sub-
vert these long-term employees by giving them a choice be-
tween his will and their jobs entailed an arrogant display of
corporate force. When both demonstrated the backbone to
stand up to this intrigue, coworkers reacted with anger, sym-
pathy, and concern. Cognetti sought to turn this to advantage
by a act of manipulation, only 3 days before the election. At
that time, he deployed guarantees that Les McClure and
other union organizers would be spared if the Union were
defeated. There was no mention of what would occur to
these individuals if the Union won. It was a clear attempt to
harness employee concern for Les McClure, and perhaps,
Woods, and other organizers by published guarantees that, on
their face, were contingent upon rejection of the Union at the
polls.
My view that a bargaining order is essential does not over-
look the fact that this case was prosecuted on the strength
of testimony by numerous employees, who, without hesi-
tation, had the guts to come forth and disclose facts that
knowingly would prove to be an embarrassment, if not dev-
astating to the Company’s leadership. They did so while ac-
tively employed and in circumstances where self-interest is
explainable only in terms of a desire to exercise Section 7
rights freely and without fear of coercive interference. One
might ask, in light of this show of solidarity, just why a
rerun election would not be fair. However, the impact of the
employer’s misconduct must be examined—not just from the
valor of those willing to come forth—but from the standpoint
of the varying personalities, aspirations, and fears that one
might presume to be found in the entire voting group. Not
all would be willing to withstand extreme pressures in a tight
labor market in the name of the uncertainties of collective
bargaining. Otis Woods was a case in point. True, he is now
a supervisor, but it was my distinct impression that his reti-
cence about facts that he had committed to oath in the past,
321KINNEY DRUGS
115 The Respondent offered testimony suggesting that the unlawful
conduct actually rallied employees to support of the Union. The tes-
timony had no scientific basis, and involved subjective impressions
of the management representatives, who, in effect were merely offer-
ing opinions that furthered management interests. The self-serving
testimony of Cousino, Field, and Frenyea in this regard is an re-
jected as unpersuasive and a consideration inappropriate to assess-
ment of the appropriateness of a bargaining order in this case.
punctuated by his claimed inability to remember the unfor-
gettable was directly attributable to the manner in which he
had been broken down by unlawful antics at the highest
level. Absent some form of objective assurance, it is fair to
assume that others in the voting group would have been
blinded, temporarily, permanently, partially or fully, in con-
sequence of this unlawful campaign were they again asked
to address the issue of representation in a second election.115
Finally, there is the question of whether, in the face of this
record, the Respondent can be trusted to avoid repetition of
the unlawful conduct were a rerun conducted. I think not.
Cognetti’s testimony was patently false. Apart from voids in
corroboration in major areas, internal inconsistency, and im-
probability, the allegations against him were substantiated by
the testimony of number of incumbent employees, many with
years of service. They describe an employer intent on taking
high risk, desperate measures to influence employee choice
unlawfully. It is incredulous to believe, accept, or assume
that so many individuals were so zealous in their desire for
the undefinable fruits of collective bargaining, that they
would offend the oath, lie against the chief executive, and in
the process, endanger their employment. Cognetti’s
untrustworthiness is also indicated by the trickery evident in
his October 9, and subsequent, indications that he could not
make changes, and his hands were tied, while almost simul-
taneously doing so, and then, if there were any doubt as to
his intentions, formally appealing that employees reject the
Union in order that he be provided a period in which to
make corrections. The Respondent in this case has dem-
onstrated a will to manipulate and violate the law as well as
the oath under conditions that suggest not only that the ef-
fects of the unlawful conduct will linger, but enliven a very
real probability that illegalities will reemerge in any followup
campaign.
In the total circumstances, it is concluded that the execu-
tion of valid authorization cards is the only truly reliable
measure of the desire of employees herein, and, on the total
record, that choice is best protected by a bargaining order
under aegis of the Supreme Court’s decision in Gissel, supra.
Accordingly, I find that the Respondent violated Section
8(a)(5) and (1) of the Act by, since September 25, 1991, fail-
ing to recognize and bargain with the Union, as exclusive
majority collective-bargaining agent for employees in the ap-
propriate unit. See Trading Port, 219 NLRB 298 (1975).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
soliciting employee complaints under conditions implying
that they would be adjusted favorably if the Union were de-
feated.
4. The Respondent violated Section 8(a)(1) of the Act by
promoting employees to full-time employment, by shutting
off an offensive buzzer, and by restoring access to coffee
during working time, all during the critical period prior to
the election, and under conditions tending to interfere with
the exercise of Section 7 rights.
5. The Respondent violated Section 8(a)(1) of the Act on
November 11 and 12 when Richard Cognetti informed em-
ployees that, if the union were designated, they had more to
lose because their pensions were vested.
6. The Respondent violated Section 8(a)(1) of the Act by
on May 13 urging employees to campaign against the Union
and to decline to attend union meetings in the future.
7. The Respondent violated Section 8(a)(1) of the Act on
November 8 and November 11 when Dave McClure coer-
cively interrogated employees concerning their union activity,
and on the latter date, by also stating that employees could
lose benefits they already had if the Union were designated.
8. The Respondent violated Section 8(a)(1) of the Act
when Richard Cognetti, on November 13, created the impres-
sion that an employee’s union activity was subject to surveil-
lance.
9. The Respondent violated Section 8(a)(1) of the Act
when Richard Cognetti, on November 13, threatened employ-
ees with discharge if they did not conduct a meeting for the
purpose of influencing coworkers to reject the union.
10. The Respondent violated Section 8(a)(1) of the Act by
on November 13, when Richard Cognetti instructed employ-
ees not attend union meetings, and by creating the impres-
sion that it would learn if they did so, in which event they
would be discharged.
11. The Respondent violated Section 8(a)(1) of the Act by
on November 13, when Dave McClure threatened that if the
Union were designated, trucking operations would be con-
tracted out, and the warehouse would be closed.
12. The Respondent violated Section 8(a)(1) when Ron
Field on November 14 suggested to an employee that he
would be promoted if the Union were defeated in the im-
pending election.
13. The Respondent violated Section 8(a)(1) on November
15, when Dave McClure, questioned an employee as to his
own union sentiment, and on other occasions questioning
him as to that of coworkers, and also when Dave McClure,
on November 15, threatened job loss if the Union were to
come in.
14. The Respondent violated Section 8(a)(1) on November
15, when Dave McClure, questioned an employee as to his
union sentiment, while going on to imply that unionization
would operate to the detriment of employees.
15. The Respondent violated Section 8(a)(1) of the Act by
on November 19, informing employees, orally and in writing,
that employee organizers would receive job guarantees and
spared from discharge only if the Union were voted out.
16. The following employees constitute a unit appropriate
for purposes of collective bargaining within the meaning of
Section 9(a) of the Act:
All full-time and regular part-time truck drivers and
warehouse employees including plant clerical employ-
ees employed by the Respondent at its 29 East Main
Street and 520 East Main Street, Gouverneur, New
York warehouse facilities, but excluding office clerical
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
116 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
117 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
employees, professional employees, temporary employ-
ees, guards and supervisors as defined in the Act.
17. At all times, since September 24, 1991, the Union has
been the majority representative of the above-described em-
ployees.
18. By virtue of the unfair labor practicesa described in
paragraphs 3 through 15 above, the Respondent has engaged
in conduct tending to undermine the Union’s representatives
status and has precluded any likelihood that a fair election
couldbe held in the future.
19. The Respondent violated Section 8(a)(5) and (1) of the
Act, since September 25, 1991, by refusing to bargain in
good faith with the Union as the exclusive collective bar-
gaining representative of employees in the above-described
bargaining unit.
20. The above unfair labor practices have an affect upon
commerce within the meaning of Section 2(6) and (7) of the
Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended116
ORDER
The Respondent, Kinney Drugs, Inc., Gouverneur, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting employee complaints under conditions im-
plying that they would be adjusted favorably if the Union
were defeated.
(b) Granting benefits in the form of promotions to full-
time employment, shutting off an offensive buzzer, and re-
storing access to coffee during working time, under condi-
tions conditions tending to interfere with the exercise of Sec-
tion 7 rights.
(c) Coercively interrogating employees concerning their
own, and the union sentiment of coworkers.
(d) Threatening that, if the Union were designated, an em-
ployees with vested pensions stood to lose, employees could
lose benefits they already had, trucking operations would be
contracted out, the warehouse would be closed, and/or em-
ployees would lose their jobs.
(e) Urging employees to campaign against the Union and
to decline to attend union meetings in the future.
(f) Creating the impression that union activity is subject to
surveillance.
(g) Threatening employees with discharge if they did not
conduct a meeting for the purpose of influencing coworkers
to reject the Union.
(h) Instructing employees not attend union meetings, and
by creating the impression that it would learn if they did so,
in which event they would be discharged.
(i) Suggesting to an employee that he would be promoted
if the Union were rejected.
(j) Informing employees, orally and in writing, that em-
ployee organizers would receive job guarantees and spared
from discharge only if the Union were voted out.
(k) Refusing to bargain in good faith with the Union con-
cerning the rates of pay, wages, hours and working condi-
tions of employees in the following appropriate unit:
All full-time and regular part-time truck drivers and
warehouse employees including plant clerical employ-
ees employed by the Respondent at its 29 East Main
Street and 520 East Main Street, York warehouse facili-
ties, but excluding office clerical employees, profes-
sional employees, temporary employees, guards and su-
pervisors as defined in the Act.
(l) In any like or related manner interfering with, coercing,
or restraining employees in the exercise of their rights guar-
anteed by section 7 of the Act.
2. Take the following affirmative action deemed necessary
to effectuate the policies of the Act.
(a) On request, bargain in good faith with the Union con-
cerning the rates of pay, wages, hours and working condi-
tions of employees in the above described appropriate bar-
gaining unit.
(b) Post at its facilities in Gouverneur, New York, copies
of the attached notice marked ‘‘Appendix.’’117 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 3, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60-consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that said notice is not al-
tered, defaced, or covered by any other material.
(c) Notify the aforesaid Regional Director in writing with-
in 20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that Case 3–RC–9808 be severed
and remanded to the Regional Director for Region 3 for the
opening and counting of challenged ballots, issuance of a re-
vised tally, and, in the event that a majority of the valid bal-
lots have been cast for the Petitioning Union, issuance of a
certification of representative. In the event that a majority
have voted against representation, the election shall be set
aside, and the aforesaid Regional Director shall take appro-
priate action consistent with the remedy provided herein.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations and has ordered us to post
and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
323KINNEY DRUGS
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT solicit employee complaints under condi-
tions implying that they would be adjusted favorably if the
Union were defeated.
WE WILL NOT grant benefits in the form of promotions to
full-time employment, or by shutting off an offensive buzzer,
or by restoring access to coffee during working time, under
conditions conditions likely to influence employees in the ex-
ercise of Section 7 rights.
WE WILL NOT coercively interrogate employees concerning
their own, or the union sentiment of coworkers.
WE WILL NOT threaten that, if the Union were designated,
a vested pension could be lost, or that employees could lose
benefits they now enjoy, or that trucking operations would
be contracted out, the warehouse closed, and/or employees
would lose their jobs.
WE WILL NOT inform any employee that, if the union were
designated, he or she stood to lose because his or her pen-
sion was vested.
WE WILL NOT urge employees to campaign against the
Union and to decline to attend union meetings in the future.
WE WILL NOT create the impression that union activity is
subject to surveillance.
WE WILL NOT threaten employees with discharge if they
refuse to conduct a meeting for the purpose of influencing
coworkers to reject the Union.
WE WILL NOT instruct employees not to attend union
meetings, and create the impression that we would learn if
they did so, in which event they would be discharged.
WE WILL NOT suggest to any employee that he will be
promoted if the Union is defeated.
WE WILL NOT inform employees, orally or in writing, that
union advocates would receive job guarantees and spared
from discharge only if the Union were voted out.
WE WILL NOT refuse to bargain in good faith with the
Union concerning the rates of pay, wages, hours, and work-
ing conditions of employees in the following appropriate
unit:
All full-time and regular part-time truck drivers and
warehouse employees including plant clerical employ-
ees employed by the Respondent at its 29 East Main
Street and 520 East Main Street, Gouverneur, New
York warehouse facilities, but excluding office clerical
employees, professional employees, temporary employ-
ees, guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfering
with, coercing, or restraining employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the Union
concerning the rates of pay, wages, hours, and working con-
ditions of employees in the above described appropriate bar-
gaining unit.
KINNEY DRUGS, INC.