Larsen Supply Co.

National Labor Relations Board - Board Decisions

Aug 8, 1980

251 N.L.R.B. 1642 (N.L.R.B. 1980)

1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Larsen Supply Co., Inc. and General Warehousemen Local No. 598, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America and Joyce Marie Brooks. Cases 21-CA-17833, 21-CA-18246, and 21-CA- 18139 September 8, 1980 DECISION AND ORDER On May 12, 1980, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. I The Administrative Law Judge found that Re- spondent violated Section 8(a)(l) of the Act by im- plementing changes in the lunch breaks of its truck- driver employees. We agree with this finding, but for the reasons below we also find that these changes violated Section 8(a)(3) and (5) of the Act. Prior to the election, Respondent permitted its truckdrivers to take their lunch breaks whenever it was convenient during the course of their deliv- eries. Following the election, Respondent initiated a new policy requiring them to take lunch from 12 to 12:30 only. It is well settled that an employer violates Section 8(a)(3) of the Act when it initiates changes in employees' working conditions in order to retaliate against them for selecting a union as their bargaining representative. In Albert's Inc., 213 NLRB 686, 692-693 (1974), the employer reacted to a union election victory by instituting a new policy permitting employees to smoke and drink coffee only during designated break times, in con- trast with the previous policy of allowing such ac- tivity whenever employees were not busy. The Board adopted the Administrative Law Judge's finding that the changes were instituted because of the election outcome and hence violated Section 8(a)(3) and (1) of the Act.2 In the instant case, the Administrative Law Judge similarly found that the new policy on lunch breaks was implemented in re- taliation for the prounion vote and was a result of Respondent's generally hostile attitude toward the Union. We therefore find that Respondent violated I The General Counsel has excepted to the Administrative Law Judge's failure to require Respondent to rescind the unlawful written dis- ciplinary notices. We find merit to this exception, and our Order requires the appropriate action. See Carter of California, Inc.. d/b/a Carters Rental 250 NLRB No. 53 (1980); J P Stevens & Co.. Inc. and its wholly owned subsidiary Stevens Elastomeric Plastic Products. Inc. 240 NLRB 579 (1979). 2 See also Robert G. Purcell and Robert M. Purcell, a Partnership, d/b/a Finnical Tire Company, 171 NLRB 242., 245 (1968). 251 NLRB No. 175 Section 8(a)(3) and (1) of the Act by changing the lunch breaks of its truckdriver employees. It is also well established that, absent compelling economic considerations for doing so, an employer acts at its peril in making unilateral changes in terms and conditions of employment during the period between an election and a union's certifica- tion. 3 Here, Respondent does not contend that there was an economic justification for the lunch break changes, and it did not consult and bargain with the Union prior to instituting the changes. We therefore find that Respondent's unilateral action violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Larsen Supply Co., Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Warehousemen, Local No. 598, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All warehousemen, including order fillers, packers, stockmen, checkers, and truckdrivers, em- ployed by Respondent at its facility located at 12055 Slauson Avenue, Santa Fe Springs, Califor- nia, but excluding all other employees, office cleri- cal employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. At all times since June 21, 1979, General War- ehousemen, Local No. 598, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, has been the exclusive repre- sentative of all the employees within the above ap- propriate unit for purposes of collective bargaining with respect to wages, rates of pay, hours, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. 5. By implementing changes with respect to the lunch breaks of its truckdriver employees without consulting and bargaining with the Union, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By discharging employee Mary Galloway, and by causing 1 day's loss of pay to employees Mary Harlan and Joyce Brooks, because they engaged in protected concerted activities, Respondent has en- : Mike O'Connor Chevrolet-Buick-GMC Co.. Inc.. and Pat O'Connor Chevrolet-Buick-GMC Co., Inc.. 209 NLRB 701, 703-704 (1974) Albert's Inc., supro at 693 LARSEN SUPPLY CO., INC. 1643 gaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. By issuing written isciplinary notices because employees engaged in union or protected concert- ed activities, by limiting the availability of gasoline and withdrawing advance vacation privileges in re- taliation for employees joining, supporting, or as- sisting the Union, and by restricting the lunch breaks of truckdriver employees to discourage them from joining, supporting, or assisting the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 8. By interrogating employees concerning their union membership, sympathies, and activities, by threatening employees with plant closure and loss of benefits in order to prevent them from joining, supporting, or assisting the Union, by engaging in surveillance of homes because of protected con- certed activities taking place among employees, and by instituting a new pay plan with increased wages in order to induce employees away from joining, supporting, or assisting the Union, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent violated Section 8(a)(5) and (I) of the Act by unilaterally imple- menting changes in the employees' terms and con- ditions of employment, we shall order Respondent to bargain, upon request, with the Union with re- spect to such changes, and embody in a signed agreement any understanding which may be reached. Having found that Respondent discharged em- ployee Mary Galloway in violation of Section 8(a)(3) and (1) of the Act, we shall order Respond- ent to reinstate her to her former position of em- ployment or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or other rights and privileges previ- ously enjoyed, and to make her whole for any loss of earnings suffered as a result of the unlawful con- duct. Having found that Respondent violated Sec- tion 8(a)(3) and (1) of the Act by causing I day's loss of pay to employees Mary Harlan and Joyce Brooks, we shall order Respondent to make them whole for any loss of earnings suffered as a result of that unlawful conduct. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by issuing written disci- plinary notices, we shall order Respondent to cease and desist therefrom, and to rescind such notices and expunge them from its records. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by limiting the availability of gasoline, by withdrawing advance vacation privileges, and by restricting the lunch breaks of truckdrivers, we shall order Respondent to cease and desist there- from and to take certain affirmative action which we find necessary to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) of the Act by interrogating employees, by threatening employees with plant closure and loss of benefits, by engaging in the surveillance of em- ployees' homes, and by instituting a new plan with increased wages, we shall order Respondent to cease and desist therefrom and to take certain af- firmative action which we find necessary to effec- tuate the policies of the Act. However, we shall not authorize or require the withdrawal or elimina- tion of any wage increases or other improvements heretofore granted. We shall also order Respondent to cease and desist from in any like or related manner interfer- ing with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Larsen Supply Co., Inc., Santa Fe Springs, Califor- nia, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Implementing changes with respect to the lunch breaks of truckdriver employees without first consulting and bargaining with General Warehou- semen, Local No. 598, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America. (b) Discharging or in any other manner discrimi- nating against employees to discourage their mem- bership in, and activities on behalf or in support of, the Union, or any other labor organization. (c) Limiting the availability of gasoline, with- drawing advance vacation privileges, and imple- menting changes with respect to the lunch breaks of truckdriver employees to retaliate against em- ployees for joining, supporting, or assisting the Union. (d) Issuing written disciplinary notices because employees engaged in union or protected concert- ed activities. LARSEN SUPPLY CO.. INC 1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Interrogating employees concerning their union membership, sympathies, and activities. (f) Threatening employees with plant closure or loss of benefits to prevent them from joining, sup- porting, or assisting the Union. (g) Restricting lunch breaks of truckdriver em- ployees to discourage their union or other protect- ed concerted activities. (h) Engaging in surveillance of homes because of protected concerted activities taking place among employees. (i) Instituting new pay plans with increased wages in order to induce employees away from joining, supporting, or assisting the Union; pro- vided, however, that nothing herein shall authorize or require the withdrawal or elimination of any wage increases or other improvements heretofore granted. (j) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain with the Union as the exclusive representative of the employees in the above-described unit with respect to changes in wages, rates of pay, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding which may be reached. (b) Offer Mary Galloway immediate and full re- instatement to her former position of employment or, if that job no longer exists, to a substantially equivalent position, without prejudice to her se- niority or other rights and privileges previously en- joyed, and make her whole, along with Mary Harlan and Joyce Brooks, in the manner provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977),4 for any loss of earnings incurred as a result of their being discharged or caused an involuntary loss of pay. (c) Rescind and expunge from its records, includ- ing the personnel files of the affected employees, all of the unlawful written disciplinary notices, and also expunge any reference thereto. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962) In accordance with his dissent in Olympic Medical Corporation, 250 NLRB No 11 (1980), Member Jenkins would award interest on the back- pay due based on the formula set forth therein amount of backpay due under the terms of this Order. (e) Post at its Santa Fe Springs, California, place of business copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms pro- vided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the consolidated amended complaint be dismissed in all other re- spects. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing all Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT implement changes with re- spect to the lunch breaks of truckdriver em- ployees without first consulting and bargaining with General Warehousemen, Local No. 598, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. WE WILL NOT discharge or in any other manner discriminate against employees to dis- courage their membership in, activities on behalf or in support of, the above-named Union, or any other labor organization. WE WILL NOT limit the availability of gaso- line, withdraw advance vacation privileges, or implement changes with respect to the lunch breaks of truckdriver employees to retaliate against employees for joining, supporting, or assisting the above-named Union. WE WILL NOT issue written disciplinary no- tices because employees engaged in union or protected concerted activities. LARSEN SUPPLY CO., INC. 1645 WE WILL NOT interrogate employees con- cerning their union membership, sympathies, and activities. WE WILL NOT threaten employees with plant closure or loss of benefits to prevent them from joining, supporting, or assisting the above-named Union. WE WILl. NOT restrict the lunch breaks of truckdriver employees to discourage their union or other protected concerted activities. WE WILL NOT engage in surveillance of homes because of protected concerted activi- ties taking place among employees. WE WILL NOT institute new pay plans with increased wages in order to induce employees away from joining, supporting, or assisting the above-named Union; provided, however, that nothing herein shall authorize or require the withdrawal or elimination of any wage in- creases or other improvements heretofore granted. WE WII.L NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union as the exclusive repre- sentative of the employees in the appropriate unit with respect to changes in wages, rates of pay, hours, and other terms and conditions of employment, and embody in a signed agree- ment any understanding which. may be reached. WE WILL offer Mary Galloway immediate and full reinstatement to her former position of employment or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole, along with Mary Harlan and Joyce Brooks, for any loss of earnings incurred as a result of their being discharged or caused an involuntary loss of pay, plus interest. WE WILL rescind and expunge from our re- cords, including the personnel files of affected employees, unlawful written disciplinary no- tices, and also expunge any reference thereto. LARSEN SUPPLY CO., INC. DECISION STATEMENT OF THE CASE' DAVID G. HEILBRUN, Administrative Law Judge: This case was heard in Los Angeles, California, on November I All dates are in 1979 unless expressly shown otherwise leging (as orally modified at the hearing) that Larsen Supply Co., Inc., herein called Respondent, violated Sec- tion 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, by unilaterally changing the terms and conditions of employment of its truckdrivers without giving prior notice to, or bargaining in good faith with, General Warehousemen, Local No. 598, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union; by dis- charging Mary Galloway because she engaged in pro- tected concerted activities; by suspending employees and docking their pay because of their protected concerted activities; by issuing written disciplinary notices to em- ployees because they engaged in protected concerted ac- tivities; by imposing more onerous working conditions on employees; by rescinding the practice of advance va- cation leave; by limiting the practice of selling available gasoline to employees; and by making various direct and telephonic utterances during the approximate period April 30 to June 11 assertedly constituting interference with, and restraint and coercion of, employees. Upon the entire record.2 my observation of the wit- nesses, and due consideration of the post-hearing briefs, I make the following: FINDINGS OF FACT AND RESULTANT CONCUSIONS OF: LAW This business is actively managed by Ray Larsen and Dave Siesser, each of whom holds a corporate office.3 The warehouse is supervised by Bill Stambaugh, and an office work force of approximately eight persons, com- prising 10 percent of Respondent's total personnel com- plement, is supervised by a salaried office manager. Rick Larsen, son of Ray Larsen, was at all material times in charge of the bulk parts section, paid a $1,900 monthly salary, and fulfilled duties that included granting time off to employees and assigning them work. In late April employee Joyce Brooks contacted James Pierson, a business agent of the Union, concerning pros- pective representation of employees. In consequence of this, a meeting of about 18 employees was held at a res- taurant on April 26 with Brooks, Mary Harlan (Brooks' sister), Mary Galloway, Michael McNees, Michael Gerlt, and Jesus Martinez among those present. Many of the employees in attendance signed authorization cards at the time they were gathered up by Pierson. On May I he filed a representation petition on behalf of the Union for a unit of all warehousemen, including order fillers, pack- ers, stockmen, checkers, and truckdrivers, estimating this group to total about 35 persons. A second organizational meeting was held among employees on May 2, and ulti- mately the petition resulted in a directed secret-ballot 2 The transcript is hereby corrected as requested by General Counsel in an unopposed motion I Respondent maintains an office and place of business in Santa Fe Springs. California, where it is engaged in warehousing and distributing plumbing supplies, annually purchasing and receiving goods, products, and materials alued in exceCs of S50.()(X) directly from suppliers located outside the State of Califiornia I find, as is admitted, that Respondent is an employer within the meaning of Sec 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Sec 2(5) of the Act. LARSEN SUPPLY CO., INC. 1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election held on June 21. Brooks was the Union's desig- nated observer at this election. The counting of ballots ostensibly showed determinative challenges, a situation resolved by Supplemental Decision and Order of the Re- gional Director on July 3, authorizing the opening and counting of Galloway's challenged ballot pursuant to the doctrine of International Ladies' Garment Workers' Union, 137 NLRB 1681 (1962). As anticipated, this eliminated the determinative character of challenged ballots, and the Union was formally certified on August 6. On April 30, Siesser called Brooks into his office and inquired whether she had been approached by anybody in the warehouse about a union. She simply denied this, and he continued by saying that such an eventuality would "wreck" the Company because it would worsen unprofitability to the point that "they would just have to close." He added that the presence of a union would mean the end of selling gasoline to employees and of their habit of not coming to work on time. As he spoke there were pamphlets prominently displayed atop his desk on the subject "How to Handle Union Workers." Close to that same time in late April, employee Lillian Martin was telephoned at her home in the evening by Siesser, who asked that she tell him the when and where of union meetings plus who was so involved. She calmly declined to do this and the conversation ended. Patricia Michaelis testified that late in April she was called into Siesser's office for a conversation with him at which no one else was present. He briefly discussed the quota system applicable to her job as an order filler, said she merited a raise in pay, then asked if she had been ap- proached by any union organizers and whether she "would be for or against a union going into the compa- ny." She answered that the mere rumors afoot did not provide her enough information yet to make a decision about what he had asked. At a time fixed as early May, truckdriver Gerlt was questioned by Siesser in the latter's office about union activities at the premises, whether Gerlt had gone to any union meetings, and how he felt on the subject. When Gerlt answered evasively, Siesser added that voting in a union would "make things really bad in the shop." At another time in May Siesser called a general meet- ing of employees, anncunced he would be away for a while on vacation, and then proceeded to discuss certain past practices concerning the fringe benefits of employ- ment. He opened such remarks with attempted humor about his recent interrogation of Michaelis, and then enu- merated new restrictions as to conditions under which employees could purchase available gasoline for their private vehicles and stated that the advance taking of va- cations would not be permitted. Commencing in mid-May and continuing through June 4, Respondent issued an unprecedented number of writ- ten reprimands confirming "Corrective Interview[s]." The stated infractions during this inclusive period were for particular absences, excessive time off from work, or tardiness.4 The persons reprimanded in this flurry includ- ed Brooks, Galloway, Harlan, McNees, and Michaelis, 4 Respondent only produced three other written reprimands from its records. Two of these had issued in November 1978 and the third. dated May 9. was issued to McNees for not finishing his daily deliveries. who had a total of 29 separate written reprimands issued to them over that approximately 3-week period. In Galloway's case a total of three such reprimands issued, the final one resulting in her discharge on June 5. Preceding this she was reprimanded on May 14 for var- ious claimed attendance infractions extending back through April 20, and on May 15 was again reprimanded for "arriv[ing] late today," with a stated caution of "next time termination." Siesser coupled delivery of the first reprimand to Galloway, done in his office, with remarks prompted from a "pamphlet in his hand" about "this union thing," as to which he had not figured out, "which way you [Galloway] are going to go." He added, "People lose their jobs over things like this." None of the 10 attendance infractions listed on this reprimand had been brought to Galloway's attention at the time of oc- currence. The reprimand of May 15 was similarly deliv- ered to Galloway in Siesser's office, but without added remarks other than her explanation that she had been without a ride to work that morning and had telephoned news of what would be her late arrival to a fellow em- ployee. On June 5 Galloway received a third reprimand from Stambalgh, who terminated her for having been 3 minutes I work earlier that pay period and 2 min- utes late for ork on May 25. Prior to t. -'ion by Respondent, Harlan had been given an involu. ary day off without pay. This happened after her planned vacation to be taken over 5 consecu- tive Mondays was interrupted by an auto accident occur- ring on May 7, the fourth Monday of the series. She had telephoned in and spoken with Laurie Allen, Siesser's secretary, asking that she be allowed to take the next day off in lieu of her final scheduled Monday for the purpose of clearing up matters concerning the accident. Allen as- sured her this "would be all right." However, when she appeared at work on Wednesday, May 9, Siesser called her into his office. He said that her breach of the agreed vacation plan meant that the prior day was simply a "no- show day," yet she must still take off the following Monday. In early June Respondent provided each employee with a notice reading: Larsen Supply has put into effect a new, totally revised wage schedule retroactive to Thursday, May 31, 1979. The new schedule will be fully explained by letter no later than Monday, June 11, and checks reflecting the new increases for the last pay period will be distributed at the same time. The incentive plan is being scrapped because most of our people don't like it and don't understand it. We agree. The three-page followup, dated June 11 and distributed with checks reflecting "the differential between your old rate and new rate," described how "outside independent compensation specialists" had completed a survey from which all employees would henceforth be paid by auto- matic increments in a range of $4.35 to $5.05 per hour for warehouse jobs and $4.75 to $5.75 per hour for truckdrivers. The following excerpts are taken from this document: LARSEN SUPPLY CO., INC. 1647 We believe it is very important for all our employ- ees, from their date of employment and as long as they are with us, to know exactly how much they will be making and the amounts and dates of the increases which they will be getting. We have eliminated all the guesswork, and you will no longer need to be con- cerned that increases may' be held back or rates cut for any reason whatsoever. Our new wage policy is designed specifically for our particular type of busi- ness, where we compete with some five or six com- panies in southern California. As we announced last Friday, we have scrapped our incentive plan because most of our people didn't understand it and didn't like it. We agreed with you. Let there be no misunderstanding. We fully expect our employees to perform their very best at all times. A very important part of our new wage policy will include semiannual wage reviews every January I and July I of each year, at which times we will determine the amount of general wage increases to put into effect across the board. We will take into account the eco- nomic changes, including increases in the cost of living, in determining the amount of our wage increases every six (6) months. The next general wage increase will take place on January 1, 1980. You should know that the National Labor Rela- tions Board will conduct a secret-ballot election be- tween L.00 p.m. and 2.00 p.m., Thursday, June 21, in our warehouse. All our warehouse employees and truckdrivers who were on our payroll on May 23 will be eligible to vote, provided they are still employed here on the date of the election. We know we will be accused by the Teamsters Union and even some of our employees of initiating the above wage policy to beat the Union in the June 21st election. We would be less than honest if we didn't say to you that we hope all of our em- ployees reject the Union and vote NO on June 21. The fact is, however, that this has been planned for a long time and is admittedly overdue and we think it would be unfair to you to delay this new policy by many months because of the election and expect- ed legal challenges from the Teamsters. We know we are doing the right thing and we guarantee that the results of this new wage policy will not be changed by Larsen Supply when the Union loses the election on June 21. What we have said here is our legal commitment to you, our people. As a matter of fact, we won't change it in any respect, even if the Union wins the election as we will explain more thoroughly in our next pree- lection letter. This decision resulted in over half of Respondent's em- ployees receiving immediate pay increases of from 5 cents to $1.25 per hour. Prior to the election, at a time variously fixed as May or early June, Stambaugh suddenly called a meeting of "almost . . . everybody in the shop." This had been prompted by certain heckling of an employee known to be disinterested in the Union. He spoke sharply to the group, who was assembled around a packing table, tell- ing them to simply carry out their work and that he did not want to hear about the Union. Shortly after the election of June 21, Stambaugh noti- fied all truckdrivers that henceforth they should have customers mark the hour of delivery on documentation, that they should call in to him at breaktimes, and that they should take lunch each day exactly from noon to 12:30 p.m. Not only were the first two conditions new, but previously lunch breaks had been taken by truck- drivers at random times suited to their convenience and the exigencies of the daily delivery schedules. Addition- ally, Stambaugh began telephoning customers to check on the service and to leave an inordinate number of mes- sages for drivers to call in to him for possible instruc- tions. As of late June, McNees and Martinez lived in close proximity to one another in a residential neighborhood. Gerlt testified that. during the approximately 2-week period following the election, he saw Siesser driving to within about a block of where the other two employees lived. Martinez and McNees each testified that they saw, or heard about, Stambaugh's driving slowly by their homes during working hours. Each one separately con- fronted Stambaugh about this, and he answered that it was only the result of his following orders. In July Brooks spoke to Rick Larsen, then her imme- diate supervisor, and arranged to be off from work on August 16 and 17. As this time approached, she spoke to him again about a week ahead of the scheduled leave, and successfully enlarged it to include the preceding one- half day. Upon her return to work on the Monday fol- lowing this 2-1/2-day absence, Stambaugh administered a I-day suspension to her for not having told him of the plan. She protested that Rick Larsen had known, but this was unavailing with Stambaugh and with Siesser, who appeared later and viewed the situation even less sympa- thetically. Respondent put on no evidence after the General Counsel rested his case-in-chief. Consequently. all utter- ances and sufficiently described conduct stand uncontra- dicted. There are two contentions that require preliminary resolution. One deals with the status of Allen, whom I find not to be a supervisor within the meaning of the Act. Her principal duty is secretarial and evidence deal- ing with her role in Respondent's hiring process and her activity in marking employee timecards does not suffice to hold otherwise. The experience of employee Teresa Bird, Allen's sister, is colored by that close relationship, and, even more, shows only that Allen encouraged her to seek work, and then cordially introduced her to Siesser, who approved Bird's hire on the spot. I discount Bird's perception of what her sister said about being able to "basically" decide whether or not an applicant would work for the Company. This is mere casual talk and does not comport with Allen's limited clerical capacity per- forming accounts payable work, filing, and reports. Doc- LARSEN SUPPLY CO., INC. 1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD umentary evidence showing her comments on employ- ment applications add little to the subject, for these are either routine confirmations of data or superficial opin- ions of first impressions. Another document shows Allen to have signed a termination notice in a "personnel" ca- pacity, but this vague titling, without more, is insignifi- cant. She formerly performed payroll work, and habitua- tion associated to this, plus the intrinsically inconsequen- tial nature of initialing an employee timecard, does not elevate her activity to the sort of dominion over other employees which the statute contemplates. Further, the practice is even vague as to extent and placement in time. Employee Laurie Miller described it as a mere wit- nessing of the writing in of time, while the "tak[ing] care" assurance testified to by Brooks is too formless to have weight in this context. The most illuminating exam- ple of this accommodation appears in later testimony of Brooks when she described how Allen would "do a favor" for Harlan (the two are cousins) by simply enter- ing a time that concealed actual lateness. These petty maneuverings do not support the General Counsel's con- tention as to Allen. For these reasons I disregard all tes- timony of her various remarks that would otherwise impute animus to Respondent. To the contrary, the evidence shows that Rick Larsen regularly functioned with authority to judgmentally assign work to other employees, thus constituting him a supervisor within the meaning of the Act. He is a member of the management family at this workplace, and, beyond the privy that ordinarily attaches to such re- lationship, there is ample evidence that he exercised su- pervisory authority. Here the secondary indicators such as salary and responsible involvement in a definable sub- division of principal business operations make his role a substantially significant one. For these reasons, his utter- ances to friend McNees that Ray Larsen's "suspecting]" Brooks (and others) of organizing for the Union, and that determined strategies founded on legal advice would "guarantee" defeat of a union, are both attributable to Respondent as telling indicators of its actual motives and resolve. Plainly present from Respondent's pointed reaction to the advent of organizing activities during the April-June period is impermissible interference and threats directed to employees. The unprecedented barrage of reprimands can only be taken as a crude effort to intimidate employ- ees at that point in a sense of interference with their Sec- tion 7 rights. The arbitrary decision to impose a day's loss of pay on Harlan is of such an odd and capricious nature as to require a holding that it was motivated by efforts underway at that time, frantic in effectuation and sweeping in scope, that were thinly disguised devices to restrain a spontaneous level of support that the Union had quickly acquired. The same characteristic taints the discharge of Galloway, whose spotty attendance had been fully tolerated before, and as to whom the final triggering events were so inconsequential as to compel an inference of discrimination. It should also be noted here that the timing of her discharge is suspect, coming as it did shortly before the scheduled election and in- volving a known supporter of the Union. In a separate vein, the new pay plan was violative of Section 8(a)(l) of the Act as a benefit abruptly accorded solely to interfere with employees' entitlement to fairly evaluate the choice before them. I find, too, that jockey- ing the lunch hour of truckdrivers was a retaliatory car- ryover of Respondent's generally hostile attitude toward the Union5 and its apparent indignation over the vote. Noting that Mike O'Connor Chevrolet-Buick-GMC Co., Inc., and Pat O'Connor Chevrolet-Buick-GMC Co., Inc., 209 NLRB 701 (1974), is the law as to an employer's di- lemma of acting with peril following an arguable elec- tion win by a labor organization, I nevertheless do not find sufficient magnitude to the lunch hour topic as to yield an 8(a)(5) violation. Rather, it is best viewed as an- other of Respondent's persistent oversteppings of classic constraints under Section 8(a)(1) of the Act. The matter of causing truckdrivers to frequently tele- phone in to Stambaugh and to obtain written entries from customers on paperwork could well fall in the same category of things; however, this phenomenon is so clearly associated to management discretion and other- wise of such meager significance in any practical sense of the word that I do not include it among the violations found. The marginally proven and tacitly admitted sur- veillance of homes by Siesser and Stambaugh is of debat- able significance. However, given this Respondent's cal- lous violations, I am satisfied that a remedy should also attach here. Other identifiable violations are the deliber- ate and unjustified refusal to continue serving as a source of gasoline to employees and the capricious withdrawal of advance vacation privileges. However, I do not view the outburst of Stambaugh around the packing table as promulgation of an improper no-solicitation rule, holding instead that it was an innocuous reference in what was essentially a restoring of order and efficiency to a mud- dled workplace. 6 The final principal allegation surrounds Brooks' sus- pension in August, and, while this is remote in time from the concentrated opposition of spring-early summer, I am satisfied that the correct holding is to infer discrimination here also. As election observer Brooks was the most visi- ble symbol of the Union, and I doubt that Stambaugh was capable of making sufficient intellectual distinctions to avoid some carryover of animosity in how he treated her. Accordingly, I render conclusions of law that Re- spondent, by interrogating employees concerning their union membership, sympathies, and activities, by threat- ening employees with plant closure and loss of benefits in order to prevent employees from joining, supporting. or assisting the Union, by issuing written disciplinary no- tices because employees engaged in union or protected concerted activities, by limiting availability of gasoline and withdrawing advance vacation privileges in retali- ation for employees joining, supporting, or assisting the 5 This factor was highly evident in the angry ejection of Pierson and a colleague when these functionaries of the Union appeared in early May at Respondent's premises to solicit a recognition agreement. I I am impressed here with the recollection of Miller, who distinctly testified that Siesser's animated remarks were indicative merely of how he "didn't care about the Union." LARSEN SUPPLY CO., INC. 1649 Union, by restricting the lunch breaks of truckdrivers to discourage them from joining, supporting, or assisting the Union, by engaging in surveillance of employees' homes because of protected concerted activities taking place among employees, by instituting a new pay plan with increased wages in order to induce employees away from joining, supporting, or assisting the Union, by dis- charging Galloway because she engaged in protected concerted activities, and by causing I day's loss of pay to Harlan and Brooks because of their protected concerted activities, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] .? U.S. Government Printing Office: 1981-341-554/201 1.